vindiciae legis, or, a vindication of the morall law and the covenants, from the errours of papists, arminians, socinians, and more especially, antinomians in xxx lectures, preached at laurence-jury, london / by anthony burgess ... burgess, anthony, d. . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing b estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) vindiciae legis, or, a vindication of the morall law and the covenants, from the errours of papists, arminians, socinians, and more especially, antinomians in xxx lectures, preached at laurence-jury, london / by anthony burgess ... burgess, anthony, d. . the second edition, corrected and augmented. [ ], , [ ] p. printed by james young, for thomas underhill ..., london : . "the table" [i.e. index]: p. 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were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng providence and government of god. law and gospel. covenant theology. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion o. junii , . we the president and fellowes of sion colledge london , earnestly desire master anthony burgess to publish in print his elaborate and judicious lectures upon the law and the covenants against the antinomian errours of these times , which at our entreaty hee hath preached , ( and for which wee give him most hearty thanks ) that so as well the kingdome , as this city , may have the benefit of those his learned labours . dated at sion colledge the th of june , . at a generall meeting of the ministers of london there . arthur jackson president , in the name and by the appointment of the rest . vindiciae legis : or , a vindication of the morall law and the covenants , from the errours of papists , arminians , socinians , and more especially , antinomians . in xxx . lectures , preached at laurence-jury , london . the second edition corrected and augmented . by anthony burgess , preacher of gods word . london , printed by james young , for thomas underhill , at the signe of the bible in wood-street . . to the truly pious and worthily honoured lady , the lady ruth scudamore . honoured madam , i have observed your ladiship carefull in two things : to improve the duty commanded in the law , and to imbrace the promise tendered in the gospel ; the former hath been a spurre to holinesse , the latter a curb to unbeliefe . the consideration of this ( together with the remembrance of those manifold favours which your ladiship hath plentifully vouchsafed to me and mine ) hath provoked me to dedicate this treatise unto you , which although it hath much controversall matter in it , yet it is not without many practicall directions and consolations . it hath been gods goodnesse unto you , that although in these times of calamities your portion hath been one of the afflictions in paul's catalogue , without settled aboad ; yet god hath lest your minde fixed and immoveable in the truth , being enabled to magnifie grace in the highest manner , out of the reall sense of your necessity and unworthinesse , yet to avoid antinomianisme : and on the other side , to be punctuall and exact in the duties of mortification and holinesse ; yet to take heed of pharisaicall popery . and indeed , this is the right sense , when we are so diligent in working out our salvation with feare and trembling , as if there were no grace to justifie ; and yet so resting and beleeving in the grace of christ , as if no good thing had been done by us . madam , goe on with the assistance of god , and account the things of grace more excellent then the things of parts ; and while others rejoyce in opinions , and new notions about faith and holinesse , doe you delight in the things themselves . the lord keep his best wine for you in the later end of your age , and give you to see the fruit of your prayers , a settled reformation in the church , that so ( when your time shall come ) you may depart in peace , feeling much of the power and love of god living , and much more of them , dying . madam , this is the prayer of your ladiships humble servant in the lord , anthony burgess . septemb. . . to the reader . reader , if the father said true , that books were the fruit of the mind , as children are of the body , naturall affection must compell me , ( as she did for moses ) to provide some ark for the safety of this book , lest it perish : and i know no better way , then to give thee some account of the matter and method of it , if thou vouchsafe to peruse it . for the matter of it , it is chiefly improved to maintain the dignitie and use of the morall law against late errours about it , and thereupon i have been forced to consult more with those books that are filled with such poyson , then to peruse those authors that have maintained the truth ; and i found the looking upon their heterodoxies a speciall help to propagate and confirme the truth , as that romane painter curiously drew the picture of an horse , by constant looking upon an asse , avoiding whatsoever he saw ridiculous or deformed in him . i acknowledge this work above my strength , it being a subject not much handled by former writers , and so i could not be guilty of that fault , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : but i say , as austin , ego parvas vires habeo ; sed dei verbum magnas habet ; i have small strength , but the word and truth of god hath great power . none is more unwilling then my self to come in print ; but , because he that writeth good books , doth retia salutis expandere , spread the nets of salvation to catch some men in ; and the good works of such will last as long as their books live ; i have hardened my selfe , and overcome mine owne temper , to publish to the world these conceptions of mine . i have not affected to appeare in this book 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , about words and phrases , because it 's controversall matter , and so fitter to be represented to the understanding in naked unaffected explications , then curiously adorned to please fancy : yea , i have grudged at words , as being too long and cumbersome , desiring ( if possible ) to conveigh my sense in as briefe a manner as may be , lest any that comes to look for fruit , should finde the leaves too broad , and so cover it from sight . and this endeavouring of brevity will make the matter seeme too obscure and abrupt , till there be a familiar acquaintance with my way . my method is after some generall discourses about the usefulnesse of the law , more particularly to handle it as given to adam , and afterwards as promulgated by moses to the people of israel ; and herein i have taken in all the materiall questions that papists , arminians , socinians , and more especially , antinomians have started up . in all this i have endeavoured to give the law its due , and the gospel its due , remembring that of luther , qui soit inter legem & evangelium distinguere , gratias agat deo , & sciat se esse theologum ; he that knoweth how to distinguish between law and gospel , let him give thanks to god , and know he is a divine . it is the allegoricall interpretation of one writer , that the great feasting and musick which was used at the reconciliation of the father to his prodigall son , did signifie the sweet harmonie and agreement between law and gospel . if this were so , then some doe represent the elder brother , that grudge and murmure at this excellent accord . if any adversary shall assault this book , i shall not be solicitous to answer it , because i endeavoured so to state the question , that at the same time truth might be maintained , and falshood demolished ; i am preparing for thy view another discourse about justification , which precious doctrine hath also been much sowred by the leaven of antinomian opinions . the contents . . in what respects the law may be said to be good . page . . . of what use the law is to the ungodly . p. . . of what use the law is to beleevers . p. . . how many wayes the law may be abused . p. . . what are the consequences of trusting in the law. p. . . what is required to the essence of a godly man in reference to obedience . p. . . wherein are good works necessary . p. . . . whether the law have a directive regulating and informing power over a godly man. p. . . how the law is said to be written in mans heart . p. . . wherein the law of nature doth consist . p. . . of what use is the light of nature . p. . . whether the light of nature be sufficient to judge in matters of faith , or to prescribe divine worship . p. . . . whether a man can by the light of nature , and by the consideration of the creatures come to know there is a god. p. . . whether the masterie of the trinitie , and of the incarnation of christ can be found out as a truth by the light of nature . p. . . whether the light of nature be sufficient to salvation . p. . . whether that be true of the papists , which hold , that the sacrifices the patriarchs offered to god were by the meere light of nature . p. . . whether originall sin can be found out by the meere light of nature , or whether it is onely a meere matter of faith , that we are thus polluted . p. . . what is the meaning of that grand rule of nature which our saviour repeateth , that which you would not have other men doe to you , doe not you to them . p. . . . whether the practice of the apostles , making all their goods common , was according to the precept of nature , and so binding all to such a practice . p. . . what a man cannot doe by the power of nature . p. . . . whether there are any antecedaneous works upon the heart before grace . p. . . whether a man by the power of nature be able to work any good thing . page . . . why god would give a positive law to adam , beside the naturall law in his heart . p. . . whether the positive law to adam would have obliged all his posterity . p. . . how the threatning was fulfilled upon him , when he did eat of the forbidden fruit . p. . . whether adam was mortall before the eating of the forbidden fruit . p. . . whether upon this threatning , thou shalt die , can be fixed that cursed opinion of the mortality of the whole man in soul as well as body . p. . . whether image or likenesse doe signifie the same thing . p. . . wherein doth this image consist . p. . . what are the properties of that righteousnesse and holinesse that was fixed in adams heart . p. . . whether this righteousnesse was naturall to adam , or no. p. . . whether justifying faith was then in adam , or whether faith and repentance are now parts of that image . p. . . whether the image of god shall be restored to us in this life . p. . . whether god did enter into covenant with adam . p. . . how god can be said to covenant , or enter into a promise with man. p. . . why god will deale with man in a covenant way , rather then in a meere absolute supreme way . p. . . whether there can be any such distinction made of adam while innocent , so as to be considered either in his naturalls or supernaturalls . p. . . whether christ did intervene in his help to adam , so that he needed christ in that estate . p. . . whether the tree of life was a sacrament of christ to adam , or no. p. . . whether there was any revelation unto adam of a christ . p. . . whether the state of reparation be more excellent then that in innocency . p. . . whether we may be now by christ said to be more righteous then adam . p. . . whether that which god requireth of us be greater then that demanded of adam in the state of innocency . p. . . whether adams immortality in the estate of innocency be not different from that which shall be in heaven . p. . . what law this delivered in mount sinai is , and what kinde of lawes there are , and why it 's called the morall law. p. . . whether this law repeated by moses , be the same with the law of nature implanted in us . p. . . why god did then , and not sooner give this law unto his people . p. . . whether this law was not before in the church of god. p. . . why god gave the morall law. p. . . whether the ten commandements , as given by moses , doe belong to , and bind us christians , or no. p. . . whether christ did adde any thing unto the law. p. . . whether christ did forbid all swearing . p. . . whether under the gospel death or any capitall punishment may be inflicted for some offences . p. . . . whether the law be an instrument of true sanctification . p. . . whether christ have abrogated the morall law. p. . . whether the law was a covenant that god made with his people of israel . p. . . whether the law be a covenant of grace . p. . . wherein the law and gospel doe oppose or differ from each other ; under which is handled the false differences between the law and gospel made by anabaptists , papists , and antinomians . p. . . why god appointed such various and different administrations . p. . . whether the gospel preach repentance , or no. p. . . whether the law command faith . p. . . how christ is the end of the law. p. . vindiciae legis : or , the vindication of the law , called morall . lecture i. tim. . , . knowing the law is good , if a man use it lawfully . this epistle to timothy may be called , paul's directory for the church of god : and , in the first place , he enjoyneth timothy , to preserve the truth against all false teachers , as he himselfe doth in all his epistles . though he derived much hatred upon his person thereby , yet this was his comfort and glory , as hierome wrote to austin , when he had vindicated the truth against pelagians , quod signum majoris gloriae est , omnes haeretici te detestantur : it is a signe of thy greater glory , that all heretiques hate thee . his injunction to timothy begins , ver . . charge them , not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 erasmus translates it , not to follow another doctrine , as if it did belong to the followers : but the words afterwards [ teachers of the law ] doe plainly refute that . now the word may be extended both to the matter ( as some ) to teach no other thing ; or to the manner ( as others ) not to teach in another way : not to teach nova , new things ; no , nor yet novè , after a new manner . the rule is , qui fingit nova verba , nova gignit dogmata : and it was melancthons wish , that men did not onely teach the same things , but in iisdem verbis , in iisdem syllabis , in the same very words , and syllables . the second part of injunction is higher then the former : though they doe not teach other things , yet they must not spend their gifts in an uselesse way ; as , to give heed to fables : this they apply to the jewes , who had a world of fictions . so tertullian of valentinus , multas introduxit fabulas ; we see here the word fable in an ill sense : therefore grotius cannot be excused , who calleth our saviours parables fables , as that of the prodigall who spent his portion , haec sabula ( saith he ) nos decet , quod omnes ortu sunt filii dei , where both his words and matter are very offensive to the truth . it is true , we finde the fathers , gregory nazianzen , and others , use sometimes a fable in their orations , to denote some morall matter ; but such the jewes did not use . as they must not give heed to fables , so neither to endlesse genealogies . we see a good use made of genealogies in the scriptures , but here is reproved the sinfull use of them ; as those grammarians among the heathens , that spent their time about heeuba's mother , or achilles pedegree , and what it was that the syren's sung : and these he calls endlesse , because vaine curiosity is more unruly then the waves of the sea ; it hath no limiting , hitherto shalt thou goe , and no further . although some referre genealogy not so much to persons as things , for that the jewes called genealogy , when one thing was fained to flow from , and , as it were , to be begotten of another ; therefore ( saith one ) paul , ver . . gives a short , but profitable genealogy , when he makes a good conscience to flow from a faith unfained . now mark , the apostle condemneth all these , because they doe not edifie . the shell-fish among the jewes was accounted uncleane , because it had but a little meat , and a great deal of labour to get it : and this is true of all doctrines , which have no profit in them . the apostle therefore tells us , what is the true use of the law , the end of the precept . scultetus , who hath it out of chrysostome , makes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not to be the law , but the ministry , or preaching ; and so the apostle useth the word , v. . but grant it be so , yet they all agree , he speaks of the law strictly taken afterwards . the apostle therefore , reproving these false teachers , that did turn bread into stones , and fish into serpents , the good law into unprofitablenesse , lest this should be thought to traduce the law , he addeth , we know ( as if that were without question to all . ) so that there is a position , the law is good , and a supposition , if a man use it lawfully ; with a correction , the law is not made to the righteous . as austin said , it was hard to speak for free-will , and not to deny free-grace ; or free-grace , and not to deny free-will : so it 's hard to give the law its due , and not to seeme to prejudice the gospel ; or the gospel , and not to prejudice the law : for , take but these two verses , videtur apostolus pugnantia dicere , the apostle seemeth to speake contradictions , saith martyr : for , seeing none can use the law well , but a righteous man , how then is not the law given to him ? but this knot shall be untyed in its proper place . i shall at this time handle the first proposition , that is conditionall ; only i might insist upon opening the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or law : for , i conceive , the neglect of the different use of this , doth breed many errours ; for there is a law that we are to be antinomians , or contrary to ; and there is a law , that we must submit to : but of this i will speak in one particular caution . observ . . the law of god is good , if a man use it lawfully . observ . . ( which is implyed ) that the law of god may be used unlawfully . the law is good , . in respect of the matter of it therein contained ; for , if you take the spirituall interpretation of it , you will finde all the matter exceeding good : to love god , to trust in him , &c. how good are they ? yea , there is no duty now required of us , but is contained there : therefore peter martyr did well resemble the decalogue to the ten predicaments , that , as there is nothing hath a being in nature , but what may be reduced to one of those ten ; so neither is there any christian duty , but what is comprehended in one of these , that is , consequentially , or reductively . and , if tully durst say , that the law of the twelve tables did exceed all the libraries of philosophers , both in weight of authority , and fruitfulnesse of matter , how much rather is this true of gods law ? it 's disputed , whether justifying faith be commanded in the law : here are different opinions ; but when i handle this question , whether the law of moses , and that which was ingraffed in adams heart in innocency , be all one , it will be proper to speak of that . peter martyr , handling the division of the ten commandements , how the number should be made up , makes that , which is commonly called the preface [ i am the lord thy god , which are words of a covenant ] to be the first commandment : and if so , then must justifying faith be enjoyned there . and thus did some of the fathers , though those words are only enunciative , and not preceptive . but more determinatively of this in its place . . in respect of the authority stamped upon it by god , whereby it becomes a rule unto us . the former is agreed on by all : and i see few that dare openly deny the other ; for , seeing the matter is intrinsecally and eternally good , it cannot but be commanded by god , though not to justifie , for that is separable from it . there are some things that are justa , because deus vult ; as in all positive things : and then there are other things just , and therefore god wills them , though even they are also just , because they are consonant to that eternall justice and goodnesse in himself : so that , indeed , it is so farre from being true , that the law , which hath gods authority stampt on it for a rule , and so is mandatum , should be abrogated , that it is impossible , nè per deum quidem ; for then god should deny his own justice and goodnesse : therefore we doe justly abhorre those blasphemous questions among the school-men , an deus possit mandare edium sui , &c. for it's impossible . therefore we see , matth. . that our saviour is so farre from abrogating it , that he sheweth the spirituall extent of the mandatory power of the law , farre beyond pharisees expectation ; and thus james urgeth the authority of the law-giver . the obligation by the law is eternall and immutable , insomuch that it doth absolutely imply a contradiction , that there should be in mans nature an holinesse or righteousnesse without a law or subjection to the command of god. hence it is a dangerous opinion of some , who say , the holinesse of our natures is not commanded by the law , but of our actions , and so not originall sinne but onely actuall sinne shall be forbidden by the decalogue . . it 's good instrumentally , as used by gods spirit for good . it 's disputed by some , whether the law , and the preaching of it , is used as an instrument by the spirit of god for conversion : but that will be an entire question in it self ; only thus much at this time . the spirit of god doth use the law , to quicken up the heart of a beleever unto his duty , psal . . thou hast quickened me by thy precepts . and so psal . . the law of the lord enlightneth the simple , and by them thy servant is fore-warn'd of sinne . you will say , the word law is taken largely there for all precepts and testimonies . it 's true , but it 's not exclusive of the precepts of the morall law ; for they were the chiefest ; and indeed , the whole word of god is an organ and instrument of gods spirit for instruction , reformation , and to make a man perfect to every good work . it 's an unreasonable thing , to separate the law from the spirit of god , and then compare it with the gospel ; for , if you doe take the gospel , even that promise , christ came to save sinners , without the spirit , it worketh no more , yea , it 's a dead letter as well as the law : therefore calvin well called lex , corpus , and the spirit , anima : now , accedat anima ad corpus , let the soul be put into the body , and it 's a living reasonable man : but now , as when we say , a man discourses , a man understands , this is ratione animae , in respect of his soul , not corporis , of the body ; so when we say , a man is quickened by the law of god to obedience , this is not by reason of the law , but of the spirit of god : but of this anon . . it 's good in respect of the sanction of it : for it 's accompanied with promises , and that not only temporall , as command . . but also spirituall , command . . where god is said to pardon to many generations ; and therefore the law doth include christ secondarily and occasionally , though not primarily , as hereafter shall be shewed . it 's true , the righteousnesse of the law , and that of the gospel differ toto coelo ; we must place one in suprema parte coeli , and the other in ima parte terrae , as luther speakes to that effect : and it 's one of the hardest taskes in all divinity , to give them their bounds , and then to cleare how the apostle doth oppose them , and how not . we know it was the cursed errour of the manichees and marcionites , that the law was only carnall , and had only carnall promises ; whereas it 's evident , that the fathers had the same faith for substance as we have . it 's true , if we take law and gospel in this strict difference , as some divines doe , that all the precepts , wheresoever they are , must be under the law , and all the promises be reduced to the gospel , whether in old or new testament ; in which sense divines then say , lex jubet , & gratia juvat ; the law commands , and grace helps ; and , lex imperat , the law commands , and fides impetrat , faith obtaineth ; then the law can have no sanction by promise : but where can this be shewed in scripture ? when we speake of the sanction of the law by promise , we take it as in the administration of it by moses , which was evangelicall ; not as it was given to adam , with a promise of eternall life upon perfect obedience : for the apostle paul's propositions , to him that worketh , the reward is reckoned of debt ; and , the doers of the law are justified , were never verificable , but in the state of innocency . . in respect of the acts of it . you may call them either acts or ends , i shall , acts . and thus a law hath divers acts , . declarative , to lay down what is the will of god : . to command obedience to this will declared : . either to invite by promises , or compell by threatnings : . to condemne the transgressors : and this use the law is acknowledged by all to have against ungodly and wicked men , and some of these cannot be denyed even to the godly . i wonder much at an antinomian authour , that saith , * it cannot be a law , unlesse it also be a cursing law ; for , besides that the same authour doth acknowledge the morall law to be a rule to the beleever , ( and regula hath vim praecepti , as well as doctrinae ) what will he say to the law given to adam , who as yet was righteous and innocent , and therefore could not be cursing or condemning of him ? so the angels were under a law , else they could not have finned , yet it was not a cursing law . it 's true , if we take cursing or condemning potentially , so a law is alwayes condemning : but for actuall cursing , that is not necessary , no not to a transgressour of the law , that hath a surety in his roome . . in respect of the end of it . rom. . . christ is the end of the law. by reason of the different use of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , there are different conjectures ; some make it no more then extremitas , or terminus ; because the ceremoniall law ended in christ : others make it finis complementi , the fulness of the law is christ : others adde , finis intentionis , or scopi to it ; so that by these the meaning is , the law did intend christ in all its ceremonialls and moralls , that , as there was not the least ceremony , which did not lead to christ ; so not the least iota or apex in the morall law , but it did also aime at him . therefore saith calvin upon this place , habemus insignem locum , quòd lex omnibus suis partibus in christum respiciat ; imò quicquid lex docet , quicquid praecipit , quicquid promittit , christum pro scopo habet : we have a noble place , proving , that the law in all its parts did look to christ ; yea whatsoever the law teacheth , commandeth , or promiseth , it hath christ for its scope . what had it been for a jew to pray to god , if christ had not been in that prayer ? to love god , if christ had not been in that love ? yet here is as great a difference between the law and gospel , as is between direction and exhibition , between a school-master and a father : he is an unwise childe , that will make a school-master his father . whether this be a proper intention of the law , you shall have hereafter . . in respect of the adjuncts of it , which the scripture attributeth to it : and it 's observable , that even where the apostle doth most urge against the law , as if it were so farre from bettering men , that it makes them the worse ; yet there he praiseth it , calling it good and spirituall . now i see it called spirituall in a two-fold sense : . effectivè , because it did , by gods spirit , quicken to spirituall life ; even as the apostle in the opposition calls himself carnall , because the power of corruption within , did work carnall and sinfull motions in him . but i shall expound it spirituall . . formaliter , formally , because the nature and extent of it is spirituall : for it forbids the sins of the spirit , not only externall sins ; it forbids thy spirit pride , thy spirit envie : even as god is the father of spirits , so is the law , the law of spirits . hence it 's compared by james to a glasse , which will shew the least spot in the face , and will not flatter , but if thou hast wrinkles and deformities there , they will be seen ; so that there is no such way to bring pharisaicall and morall men out of love with themselves , as to set this glasse before them . . in respect of the use of it : and that to the ungodly , and to the beleever . . to the ungodly , it hath this use : . to restrain and limit sin : and , certainly , though it should not reach to renovation and changing of mens hearts , yet here is a great deale of good , that it 's an outward whip and scourge to men , whereby they are kept in honest discipline : and this made the apostle say , the law was added , because of transgressions . the people of israel , by their being in the wildernesse , having forgotten god , and being prone to idolatry , the lord he added this law , as a restraint upon them . even as you see upon mad-men , and those that are possessed with devils , we put heavie chaines and fetters , that they may doe no hurt ; so the lord laid the law upon the people of israel , to keep them in from impietie . the apostle useth a word , shut up as in a dungeon , but that is to another sense . it was chrysostomes comparison : as a great man , suspecting his wife , appoints eunuchs to look to her and keep her ; so did god , being jealous over the jewes , appoint these lawes . . to curse , and condemne : and in this respect , it poureth all its fury upon the ungodly . the law to the godly by christ , is like a serpent with a sting pulled out ; but now to the wicked , the sting of sinne is the law , and therefore the condition of that man , who is thus under it , is unspeakably miserable . the curse of it is the sore displeasure of god , and that for every breach of it ; and , if men , that have broken onely mens lawes , be yet so much afraid , that they hide themselves , and keep close , when yet no man or judge can damne them , or throw them into hell ; what cause is there to feare that law-giver , who is able to destroy soul and body ? therefore consider , thou prophane man , are not thy oaths , are not thy lusts against gods law ? you had better have all the men in the world your enemy , then the law of god. it 's a spirituall enemy ; and therefore the terrours of it are spirituall , as well as the duties . let not your lives be antinomians , no more then opinions . oh that i could confute this antinomianisme also ; such a mans life and conversation was against gods law , but now it 's not . . to beleevers it hath this use : . to excite and quicken them against all sinne and corruption : for , howsoever the scripture saith , against such there is no law , and , the law is not made to the righteous ; yet , because none of the godly are perfectly righteous , and there is none but may complain of his dull love , and his faint delight in holy things , therefore the law of god , by commanding , doth quicken him . how short is this of that which god commands ? not , that a man is to look for justification by this , or to make these in stead of a christ to him ; but for other ends . hence psal . . and psal . . and . who can deny , that they belong to the godly now , as well as heretofore ? have not beleevers now , crookednesse , hypocrisie , luke-warmnesse ? you know , not only the unruly colt , that is yet untamed ; but the horse , that is broken , hath a bit and bridle also : and so , not only the ungodly , but even the godly , whose hearts have been much broken and tamed , doe yet need a bridle , lest they should cast off the spirit of god , that would govern them , nè spiritum sessorem excutiant . and , if men should be so peremptorie , as to say , they doe not need this ; it 's not because they doe not need it , ( for they need it most ) but because they do not feele it . . to enlighten and discover unto them daily more and more heart-sinne , and soul-sinne . this use the apostle speaketh of , rom. . per totum : for , how should a man come to know the depth of originall sinne , all the sinfull motions flowing from it , but by the law ? and therefore that is observed by divines , the apostle saith , he had not knowne sinne , but by the law ; intimating thereby , that the law of nature was so obliterated and darkened , that it could not shew a man the least part of his wickednesse . seneca , who had more light then others , yet he saith , it is thy errour , to think sins were born with thee , no , they afterwards came upon thee , erras , si tecum vitia nasci putas ; supervenerunt , ingesta sunt . and so pelagius his assertion was , that , we are born as well without vice , as virtue , tam sine vitio , quàm sine virtute nascimur . and you see all popery , to this day , holds those motions of heart , not consented to , to be no sins , but necessary conditions , arising from our constitution , and such as adam had in innocency : therefore the people of god see and are humbled for that wickednesse , which others take no notice of . this will satisfie man , but not gods law. . to drive them out of all their own power and righteousnesse . and this is another good consequence : for , when they see all to come short of the law ; that the earth is not more distant from heaven , then they from that righteousnesse , this makes them to goe out of all their prayers , and all their duties , as you see paul , rom. . he consented to the law , and he delighted in it , but he could not reach to the righteousnesse of it ; and therefore crieth out , oh wretched man that i am ! how apt are the holiest to be proud and secure , as david , and peter ? even as the worms and wasps eat the sweetest apples and fruit ; but this will keep thee low . how absurd then are they , that say , the preaching of the law is to make men trust in themselves , and to adhere to their own righteousnesse ? for , there is no such way to see a mans beggery and guilt , as by shewing the strictnesse of the law : for , what makes a papist so self-confident , that his hope is partly in grace , and partly in merits , but because they hold they are able to keep the law ? god forbid , saith a papist , that we should enjoy heaven as of meere almes to us ; no , we have it by conquest : whence is all this , but because they give not the law its due ? . hereby to quicken them to an higher price and esteem of christ , and the benefits by him : so paul , in that great agony of his , striving with his corruption ( being like a living man tyed to a dead carkasse , his living faith to dead unbelief , his humility to loathsome pride ) see what a conclusion he makes , i thank god , through jesus christ . it 's true , many times the people of god , out of the sense of their sinne , are driven off from christ ; but this is not the scriptures direction : that holds out riches in christ for thy poverty , righteousnesse in christ for thy guilt , peace in christ for thy terrour . and in this consideration it is , that many times luther hath such hyperbolicall speeches about the law , and about sinne . all is spoken against a christians opposing the law to the gospel , so , as if the discovering of the one , did quite drive from the other . and this is the reason , why papists and formall christians never heartily and vehemently prize christ , taking up every crumb that falls from his table : they are christs to themselves , and self-saviours . i deny not , but the preaching of christ , and about grace , may also make us prize grace and christ ; but such is our corruption , that all is little enough . let me adde these cautions : . it 's of great consequence in what sense we use the word [ law. ] he that distinguisheth well , teacheth well . now i observe a great neglect of this in the books written about these points ; and , indeed , the reason why some can so hardly endure the word [ law ] is , because they attend to the use of the word in english ; or the greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and lex , as it is defined by tully and aristotle , which understand it a strict rule only of things to be done , and that by way of meere command . but now the hebrew word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 doth comprehend more ; for that doth not only signifie strictly what is to be done , but it denoteth largely any heavenly doctrine , whether it be promise , or precept : and hence it is , that the apostle calleth it , the law of faith ( which in some sense would be a contradiction , and in some places , where the word law is used absolutely , it 's much questioned , whether he mean the law or the gospel ) and the reason why he calls it a law of faith , is not ( as chrysostome would have it ) because hereby he would sweeten the gospel , and , for the words sake , make it more pleasing to them ; but happily , in a meere hebraisme , as signifying that in generall , which doth declare and teach the will of god. the hebrewes have a more strict word for precept , and that is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , yet some say this also sometimes signifieth a promise , psal . . . there the lord commanded a blessing , i. e. promised ; so john . . his commandement , i. e. his promise , is life everlasting : so then , if we would attend to the hebrew words , it would not so trouble us , to heare that it is good . but yet the use of the word [ law ] is very generall : sometimes it signifieth any part of the old testament , john . it is said in the law , ye are gods . and that is in the psalmes : sometimes the law and the prophets are made all the books of the old testament ; sometimes the law and the psalmes are distinguished ; sometimes it is used for the ceremoniall law only , hebr. . . the law having a shadow of things to come ; sometimes it is used synecdochically , for some acts of the law only ; as galat. . against such there is no law : sometimes it is used for that whole oiconomy , and peculiar dispensation of gods worship unto the jewes ; in which sense it is said to be untill john , but grace and truth by jesus christ : sometimes it is used in the sense of the jewes , as without christ : and thus the apostle generally in the epistle to the romans and galatians . indeed , this is a dispute between papists and us , in what sense the law is taken : for , the papists would have it understood onely of the ceremoniall law . but we answer , that the beginning of the dispute , was about the observation of those legall ceremonies , as necessary to salvation : but the apostle goeth from the hypothesis to the thesis ; and sheweth , that not only those ordinances , but no other works may be put in christs roome : therefore the antinomian , before he speaks any thing against , or about the law , he must shew in what sense the apostle useth it : sometimes it is taken strictly , for the five books of moses ; yea , it is thought of many , that book of the law , so often mentioned in scripture , which was kept with so much diligence , was onely that book called deuteronomy : and commonly it is taken most strictly for the ten commandements . now , the different use of this word breeds all this obscurity , and the apostle argueth against it in one sense , and pleadeth for it in another . . the law must not be separated from the spirit of god. the law is only light to the understanding , the spirit of god must circumcise the heart to love it , and delight in it , otherwise that is true of gods law , which aristotle , . polit. cap. . said of all humane lawes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , it 's not able of it self to make good and honest citizens . this is a principle alwayes to be carried along with you : for , the whole word of god is the instrument and organ of spirituall life , and the law is part of this word of god : this i proved before ; nay , should the morall law be quite abolished , yet it would not be for this end , because the spirit of god did not use it as an instrument of life ; for , we see all sides grant , that circumcision and the sacraments are argued against by the apostle , as being against our salvation , and damnable in their own use now ; yet in the old testament , those sacraments of circumcision , and the paschall lamb , were spirituall meanes of faith , as truly as baptisme , and the lords supper are . it is true , there is a difference in the degree of gods grace by them ; but not in the truth : and therefore our divines do well consute the papists , who hold those sacraments onely typicall of ours , and not to be really exhibitive of grace , as these are in the new testament . therefore , if the apostles , arguing against the morall law , would prove it no instrument of gods spirit for our good , the same would hold also in circumcision , and all those sacraments ; and therefore at least for that time they must grant it a help to christ and grace , as well as circumcision was . if you say , why then doth the apostle argue against the works of the morall law ? i answer , because the jewes rested in them without christ : and , it is the fault of our people , they turn the gospel into the law ; and we may say , whosoever seeks to be saved by his baptisme , he falls off from christ . . to doe a thing out of obedience to the law , and yet by love and delight , doe not oppose one another . about this i see a perpetuall mistake . to lead a man by the law is slavish , it 's servile , say they ; a beleever is carried by love , he needs no law : and i shall shew you , chrysostome hath some such hyperbolicall expressions upon the words following , [ the law is not put for the righteous . ] but this is very weak , to oppose the efficient cause and the rule together ; for , the spirit of god worketh the heart to love and delight in that which he commandeth : take an instance in adam ; while he stood , he did obey out of love , and yet because of the command also : so the angels are ministring spirits , and do obey the commandments of god , ( otherwise the apostate angels could not have sinned ) and yet they are under a law , though doing all things in love . we may illustrate it by moses his mother ; you know , she was hired , and commanded by pharaoh's daughter to nurse moses , which was her own childe : now she did this out of love to moses , her childe ; yet did obey pharaeh's daughters commandement upon her also : so concerning christ , there was a commandement laid upon christ , to fulfill the law for us , yet he did it out of love . it is disputed , whether christ had a command laid upon him by the father strictly so called : and howsoever the arrians , from the grant of this , did inferre christs absolute inferiority to the father ; yet our orthodox divines doe conclude it , because of the many places of scripture which prove it , act. . . john . . as my father hath commanded me , so i you . john . . ( if you keep my commandements , and abide in love , &c. ) and , indeed , if it were not a commandement , it could not be called an obedience of christ ; for , that doth relate to a command : now this i inferre hence , that , to doe a thing out of obedience to a command , because a command , doth not inferre want of love ; although i grant , that the commandement was not laid upon christ , as on us , either to direct him , or quicken him . besides , all the people of god have divers relations , upon which their obedience lyeth ; they are gods servants , and that doth imply obedientiam servi , though not obedientiam servilem , the obedience of a servant , but not servile obedience . again , a beleever may look to the reward , and yet have a spirit of love ; how much rather look to the command of god ? a godly man may have amorem mercedis , though not amorem mercenarium . if god in his covenant make a promise of reward , the eie unto that is suteable and agreeable unto the covenant , and therefore cannot be blame-worthy . and , lastly , there is no godly man , but he hath in part some unwillingness to good things ; and therefore needs the law not only to direct , but to exhort and goad forward : even , as i said , the tamed horse needeth a spur , as well as the unbroken colt . . though christ hath obeyed the law fully , yet that doth not exempt us from our obedience to it , for other ends then he did it . and , i think , that if the antinomian did fully inform himself in this thing , there were an agreement : for , we all ought to be zealous against those pharisaicall and popish practices of setting up any thing in us , though wrought by the grace of god , as the matter of our justification . but herein they do not distinguish , or well argue : the works of the law do not justifie , therefore they are needlesse , or not requisite : for ( say they ) if christ hath fully obeyed the righteousnesse of the law , and that is made ours ; therefore it is not what ours is , but what christs is . this would be a good consequence , if we were to obey the law for the same end christ did , but that is farre for us . i have heard indeed some doubt , whether the maintaining of christs active obedience imputed to us , doth not necessarily imply antinomianisme : but of that more hereafter ; onely let them lay a parallel with christs passive obedience . he satisfied the curse and threatning of the law , and thereby hath freed us from all punishment ; yet the beleevers have afflictions for other ends : so do we the works of gods law , for other ends then christ did them . a fifth caution or limitation shall be this , to distinguish between a beleever , and his personall acts : for , howsoever the law doth not curse or condemne him , in regard of his state ; yet those particular sins he commits , it condemnes them , and they are guilty of gods wrath , though this guilt doth not redound upon the person : therefore it is a very wilde comparison of * one , that a man under grace hath no more to doe with the law , then an english-man hath with the lawes of spain or turkie : for , howsoever every beleever be in a state of grace , so that his person is justified ; yet , being but in part regenerated , so farre as his sins are committed , they are threatned and condemned in him , as well as in another : for there is a simple guilt of sin , and a guilt redundant upon the person . . that the law is not therefore to be decryed , because we have no power to keep the law : for , so we have no power to obey the gospel . it is an expression an antinomian * useth , the law ( saith he ) speaketh to thee , if troubled for sin , doe this , and live ; now this is , as if a judge should bid a malefactor , if you will not be hanged , take all england , and carry it upon your shoulders into the west indies . what comfort were this ? now , doth not the gospel , when it bids a man beleeve , speak as impossible a thing to a mans power ? it 's true , god doth not give such a measure of grace as is able to fulfill the law , but we have faith enough evangelically to justifie us : but that is extraneous to this matter in hand . it followes therefore , that the law , taken most strictly , and the gospel , differ in other considerations then in this . . they doe not distinguish between that which is primarily and per se in the law , and that which is occasionally . it cannot be denied , but the decalogue requireth primarily a perfect holiness , as all lawes require exactnesse ; but yet it doth not exclude a mediatour . the law saith , doe this and live ; and it doth not say , none else shall doe this for thee : for , if so , then it had been injustice in god , to have given us a christ . i therefore much wonder at one , who , in his book , speaks thus , the law doth not only deprive us of comfort , but it will let no body else speak a word of comfort , because it is a rigid keeper : and he confirmeth it by that place , gal. . . but how short this is , appeareth , . because what the apostle calleth the law here , he called the scripture in generall before . . he speaketh it generally of all under that form of moses his regiment , so that the fathers should have no comfort by that means . use . of instruction . how dangerous an errour it is , to deny the law : for , is it good ? and , may it be used well ? then take we heed of rejecting it . what ? because it is not good for justification , is it in no sense else good ? is not gold good , because you cannot eat it , and feed on it , as you do on meat ? take the precept of the gospel ; yea , take the gospel acts , as , to beleeve : this , as it is a work , doth not justifie : ( therefore that opinion which makes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 credere , to justifie , may as well take in other acts of obedience ) but , because faith , as it is a work , doth not justifie , do you therefore reject beleeving ? a man may abuse all the ordinances of the gospel , as well as the law. the man that thinks the very outward work of baptisme , the very outward work of receiving a sacrament will justifie him , doth as much dishonour god , as a jew , that thought circumcision , or the sacrifices did justifie him . you may quickly turn all the gospel into the law in that sense ; you may as well say , what need i pray ? what need i repent ? it cannot justifie me , as to deny the law , because it cannot . use . how vain a thing it is , to advance grace and christ oppositely to the law : nay , they that destroy one , destroy also the other . who prizeth the city of refuge so much , as the malefactour that is pursued by guilt ? who desireth the brasen serpent , but he that is stung ? if christ be the end of the law , how is he contrary to it ? and , if christ and the law could be under the old testament , why not under the new ? it is true , to use the law otherwise then god hath appointed , it 's no marvell if it hurt us , if it poyson us ; as those that kept the manna otherwise then they should , it turned to wormes . but , if you use it so , as christ is the dearer , and grace the more welcome to thee , then thou dost well . the law bids thee love god with all thine heart and soul ; doth not this bid thee goe to christ ? hast thou any strength to doe it ? and what thou dost , being enabled by grace , is that perfect ? vae etiam laudabili vitae ei , &c. said austin , make therefore a right use of the law , and then thou wilt set up christ and grace in thine heart , as well as in thy mouth . now thou holdst free-grace as an opinion , it may be ; but then all within thee will acknowledge it . lecture ii. tim. . , . knowing the law is good , if a man use it lawfully . in these words you have heard , . the position , [ the law is good : ] . the supposition , if a man use it lawfully . now , this know in the generall , that this is no more derogative to the law , that it is such a good , which a man may use ill , bonum , quo aliquis malè uti potest , then god , or christ , or the gospel , or free-grace are ; for , all may turn this hony into gall : yea , an antinomian may set up his preaching of grace , as a work more eminent , and so trust to that more then christ . i doe acknowledge that of chrysostome to be very good , speaking of the love of god in christ , and raised up in admiration of it , oh ( saith he ) i am like a man digging in a deep spring : i stand here , and the water riseth up upon me ; and i stand there , and still the water riseth upon me : so it is in the love of christ and the gospel , the poore broken heart may finde unsearchable treasures there ; but yet this must not be used to the prejudice of the law neither . and take this , as a prologus galeatus to all i shall say , that , because the law may be used unlawfully , it is no more derogation , then to the gospel : wo be to the whole land , for the abuse of the gospel ; is it not the matter of death to many ? i shall shew the generall wayes of abusing the law : . that in the text , when men turn it unto unfruitfull and unprofitable disputes : and this the apostle doth here mainly intend . cui bono ? must be the question made of any dispute about the law : and therefore , if i should , in this exercise i have undertaken , handle any frivolous or unprofitable disputes , this were to use the law unlawfully ; and therefore let ministers take heed that be not true of them , which one dreamed about the school-men , that he thought them all like a man eating an hard stone , when pure manchet was by . besides , he preacheth the law unprofitably , not only that darkeneth it with obscure questions , but that doth not teach christ by it : and i see not but that ministers may be humbled , that they have pressed religious duties , but not so as to set up christ ; and hereby people have been content with duties and sacraments , though no christ in them . but , as all the vessels were to be of pure gold in the temple , so ought all our duties to be of pure and meere christ for acceptation . tertullian saith of cerinthus , legem proponit , ad excludendum evangelium , he preacheth the law , to exclude the gospel ; therefore there may be such a legall preacher , as is justly to be reproved , the apostle of the teachers in this chapter , saith they will be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , teachers of the law , yet he rebuketh them , for they brought in many fables about it , as they feigned a dialogue between god and the law before the world was made , and that god made the world for the lawes sake . . when men look to carnall and worldly respects , in the handling of it . this is also to use the law unlawfully . and thus the priests and the jewes did , as thereby to make a living , and to have temporall blessings : and it is no wonder that the law may be used so , seeing the doctrine of christ is so abused . there are , as nazianzen saith well , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , christ-merchants , and christ-hucksters , that hope , as judas did , for carnall ends by christ ; therefore so we are to handle law and gospel , not as thereby to make parties , or to get applause ; but of a godly love and zeale to truth . it was an honest complaint of a popish writer , we ( saith he ) handle the scripture ( tantùm ut nos pascat , & vestiat ) that we might only live , and be cloathed by it . and how doe we all fall short of paul , as , act. . where he was preaching night and day with great affections , and desired no mans gold or silver ? how well might chrysostome call him , angelus terrestris , & , cor pauli est cor christi ? . when men would quite overthrow it , or deny it . thus the marcionites and manichees of old , and others of late , though upon other grounds . now the ground of their errour , are the many places of scripture that seeme to deny the law ; and , i doe acknowledge , it is hard to get the true sense of those places without diligence : and therefore austin said well ( as to that purpose , if i mistake not ) they are not so much the simple , as the negligent , that are deceived herein : and , as chrysostome saith , a friend that is acquainted with his friend , will get out the meaning of a letter or phrase , which another could not that is a stranger : so it is here in the scripture . now , two things let such consider : . that as there are places that seem to overthrow it , so there are also many places that doe confirme it ; yea , the apostle makes objections against himself , as if he did disanull it , and then answers with an absit , as if it were an horrid thing to doe so . . that they must take the apostle in the particular sense he intends it . it is a good rule , quaelibet res eâ capienda est parte , quâ capi debet : you doe not take a sword by the edge , but the handle ; nor a vessell by the body , but the eare : and so this doctrine of the law , not in every part , but where the apostle would have you take it . . when they doe ill interpret it . and herein all popish authors are in an high degree to be reproved ; for , they limit exceedingly the spirituall meaning thereof , even as the pharisees understood it only of externall acts : and therefore our saviour , matth. . did not make new commands or counsells there ( as popish expositors dreame ) but did throw away all that earth , which the philistims had tumbled into that spring . and this was so generall a mistake , that it was a great while ere paul did understand the strictnesse of it . this discovers a world of sin in a man , which he was ignorant of before . the papists , they also use it unlawfully in that corrupt glosse , as if it might be kept so farre forth as it 's obligatory . in a great part of it , they make it commonitory , and not obligatory ; and the power of man they make to be the rule of his duty , whereas it is plaine by scripture , that that measure of grace , which god giveth any man upon earth , is not answerable to the duty commanded there . it is true , hierome said , it was blasphemy to say , god commanded any thing impossible : but in this sense impossible absolutely , so that man could never have fulfilled it . . when they doe oppose it to christ . and this was the jewes fundamentall errour , and under this notion doth the apostle argue against it in his epistles to the romans and galatians . and , howsoever they would have compounded christ and the law together , yet this composition was to make opposition . there can be no more two suns in the firmament , then two things to justifie : therefore the reconciliation of the law and christ cannot be , in matter of justification , by way of mixture ; but yet one is antecedaneous and subordinate to the other , and is no more to be opposed , then the end to the meanes . nor is it any wonder that the law , through errour , may be opposed to christ , seeing that christ may be opposed to christ ; as , in popery , christ sanctifying is opposed to christ justifying : for , when we charge them with derogating from christ , in holding our graces doe justifie ; nay ( say they ) we set him up more then you , for , we hold , he doth make us holy , that this holinesse doth justifie . thus , you see , christ in his workes is opposed to christ in his justifying . and here , by the way , you may see , that that only is the best way of advancing christ or grace , which is in a scripture way , and not what is possible for us to think , as the papists doe . . when they look for justification by it : and this is a dangerous and desperate errour ; this is that which reigneth in popery , this is that inbred canker-worm , that eateth in the hearts of all naturally . they know not a gospel-righteousnesse , and for this end they reade the law , they heare it preached onely , that they may be self-saviours : and , certainly , for this two-fold end , i may think , god suffers this antinomian errour to grow ; first , that ministers may humble themselves , they have not set forth christ and grace in all the glory of it . if bernard said , he did not love to reade tully , because he could not reade the name of christ there ; how much rather may we say , that in many sermons , in many a mans ministery , the drift and end of all his preaching is not , that christ may be advanced . and in christians , in protestants , it is a farre greater sin then in papists : for , it is well observed by peter martyr , that the apostle doth deale more mildly in the epistle to the romans , then in the epistle to the galatians ; and the reason is , because the galatians were at first well instructed in the matter of justification , but afterwards did mixe other things with christ , therefore he thunders against them . i desire to know nothing , saith paul , corinth . . but jesus christ , and him crucified . and secondly , another end may be , to have these truths beaten out more : as , the deity of christ , because of the arrians ; and , grace in predestination and conversion , by the pelagians : so , the grace of justification , because not only of papists , but antinomians . and , certainly , these things were much pressed by luther at first , as appeares in his epistle to the galatians : but , perceiving how this good doctrine was abused , he speaks in his commentary on genesis ( which was one of his last workes ) much against antinomists : but yet , because generally people are fallen into a formality of truths , it 's good to set up christ . and the poison of this opinion will be seen in these things : . it overthroweth the nature of grace . and this holdeth against the works of the gospel , as well as those of the law. take notice of this , that justification by works doth not only exclude the works of the law , but all works of the gospel , yea , and the works of grace also . hence you see , the opposition is of works , and of grace . here the apostle makes an immediate opposition , whereas the papist would say , paul hath a non sequitur ; for , datur tertium , workes of and by grace . but works doe therefore oppose grace , because the frequent acception of it in the scripture is for the favour of god without us , not any thing in us . i will not deny but that the word [ grace ] is used for the effects of it , inherent holinesse wrought in us , as in that place , grow in grace and knowledge ; but yet commonly grace is used for the favour of god. and the ignorance of the use of the word in scripture , makes them so extoll inherent holinesse , as if that were the grace which should save us . as ( saith the papist ) a bird cannot fly without wings , the fish swimme without scales , the sculler without his oare cannot get to the haven : so , without this grace , we cannot fly into heaven , and that as the meritorious cause . but this is ignorance of the word [ grace ] and so the troubles and unbelief of the godly heart , because it is not so holy as it would be , cometh from the mistake of the word [ grace . ] i shall anticipate my self in another subject , if i should tell you how comprehensive this word is , implying no merit or causality on our part for acceptance , but the clean contrary ; and therefore , for god to deal with us in grace , is more then in love : for adam , if he had continued righteous , he had been partaker of life ; this had been the gift of god , but not by the grace of god , as it is strictly taken ; for adam was not in a contrary condition to life . i will not trouble you with pareus his apprehension , that thinketh adams righteousnesse could not be called grace , therefore reproveth bellarmine for his title , de gratia primi hominis : neither will he acknowledge those habits of holinesse in christ to be called grace , because there was not a contrary disposition in his nature to it , as it is in ours . and this also cameron presseth , that , besides the indebitum which grace implyeth in every subject , there is also a demeritum of the contrary . thus then justification is of grace , because thy holinesse doth not only not deserve this , but the clean contrary . now what a cordiall may this be to the broken heart , exercised with its sinnes ? how may the sick say , there i finde health ? the poore say , there i finde riches ? and as for the papists , who say they set up grace , and they acknowledge grace ; yet first it must be set down in what sense we take grace . it is not every man that talketh of grace , doth therefore set up scripture-grace . who knoweth not that the pelagians set up grace ? they determined , that whosoever did not a knowledge grace necessary to every good act all the day long let him be an anathema : and this faire colour did deceive the eastern churches , that they did acquit him : but austine and others observed , that he did use the word grace , to decline envie , gratiae vocabulo uti ad frangendam invidiam ; even as the papists do at this time : therefore if they say , thy patience is grace , thy hope is grace , and therefore by grace thou art saved ; say , this is not the gospel-grace , the scripture-grace , by which sins are pardoned , and we saved . . it opposeth christ in his fulnesse : it makes an halfe-christ . thus the false apostles made christ void , and fell off from him . neither will this serve , to say that the apostle speakes of the ceremoniall law : for ( as we told you ) though the differences about the jewish ceremonies , were the occasion of those divisions in the primitive times , yet the apostle goeth from the hypothesis to the thesis , even to all works whatsoever , and therefore excludes abrahams and davids works from justification . now christ would be no christ if workes were our righteousnesse ; because the righteousnesse by the faith of christ is opposed to pauls own righteousnesse , and this is called the righteousnesse of god : yea , this is said to be made righteousnesse unto us , and he is called the lord our righteousnesse ; and howsoever bellarmine would understand these phrases causally , as when god is called the lord our salvation ; yet we shall shew you it cannot be so , therefore if thy works justifie thee , what needs a christ ? can thy graces be a christ ? . it destroyeth the true doctrine of justification . i shall not lanch into this ocean at this time , only consider how the scripture speaks of it , as not infusing what is perfect , but forgiving what is imperfect ; as in david , blessed is the man to whom the lord imputeth no sin . i shall not at this time dispute whether there be two parts of justification , one positive , in respect of the term to which , called imputation of christs righteousnesse ; the other negative , in respect of the term from which , not accounting sin . this later i only presse : therefore , what is it to be justified ? not to have holinesse accepted of us , but our sins remitted : justitia nostra , est indulgentia tua domine . now , what a comfortable plea is this for an humbled soul , o lord , it is not the question , what good i have , but what evil thou wilt forget : it is not to finde righteous works in me , but to passe by the unrighteousnesse in me ? what can satisfie thy soul , if this will not do ? is not this ( as i told you ) with chrysostome , to stand upon a spring rising higher and higher ? . it quite overthroweth justifying faith : for when christ and grace is overthrowne , this also must fall to the ground . there are these three main concurrent causes to our justification : the grace of god as the efficient , christ as the meritorious , and faith as the instrumentall ; and although one of these causes be more excellent then the other ( the efficient then the instrumentall ) yet all are equally necessary to that effect of justification . that faith doth instrumentally justifie , i here take it for granted . as for the antinomian , who holdeth it before faith , and thinketh the argument from infants will plainly prove it , i shall shew the contrary in its due time : onely this is enough , that an instrumentall particle is attributed to it , by faith in his bloud , and , by faith in his name , and , justified by faith . it is true , it 's never said 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for faith , as if there were dignity or merit in it ; but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . now to set up works is to oppose faith , as the apostle argueth : therefore faith , as it is a work , is to be opposed to it self , as it 's an instrument justifying . . it quite discourageth a broken-hearted sinner , taking away peace with god , the effect of justification , and glorying in tribulations . if you consider chapt. . of rom. you will finde , that peace onely comes this way , yea and to glory in tribulations ; for , ver . . being justified by faith , we have peace with god. alas , what patience , what repentance , what pains and religious duties can procure thee peace with god ? can that which would damne , save ? can that which would work woe in thee , comfort thee ? vae etiam laudabili vitae erit , saith austin , as you heard ; woe to the most worthy life that is , if it should be judged strictly by god. and then mark the object of this peace , peace with god. take a pharisee , take a morall or a formall man , he may have a great deale of peace , because of his duties and good heart ; yet , this is not a peace with god : so also for glorying in tribulations , how can this be ? if all a mans glory were for himselfe , would not every affliction rather break him , saying , this is the fruit of my sinne ? . it brings men into themselves . and this is very dangerous : a man may not only exclude christ from his soul by grosse sins , but by self-confidences ; you are they which justifie your selves . and so the jewes , they would not submit to their own righteousnesse ; see how afraid paul is to be found in his own righteousnesse . beza puts an emphasis upon this word found , implying , that justice , and the law , and so the wrath of god is pursuing and seeking after man : where is that man that offends god , and transgresseth his law ? where is that man that doth not pray , or heare as he should doe ? now ( saith paul ) i would not be found in mine own righteousnesse . and this made luther say , take heed , not only of thy sins , but also of thy good duties . now , if this were all the wine that the antinomian would drink in christs cellar , if this were all the hony that he would have in christs hive , none would contradict it : but we shall shew you the dangerous inferences they make from hence , turning that which would be a rod , into a serpent . . it overthroweth the doctrine of imputation , and reckoning righteousnesse to us : which is spoken of rom. . and in other places . i know how this point is vexed divers wayes ; but this is enough for us : if righteousnesse were in us , and properly ours , what need a righteousnesse be reckoned and imputed to us ? the papist maketh imputative , and putative , and imaginary all one . who can say , a lame man ( say they ) goeth right , because he hath other mens shooes ? who can say , a deformed thersites is a faire absalom , because of borrowed beauty ? but these are easily refuted by scripture , and we shall shew you christs righteousnesse is as really ours , as if it were inherent . they differ not in reality , but in the manner of being ours . now , here the antinomian and papist agree in the inferences they make from this doctrine ; if christs righteousnesse be ours , then there is no sin in us seen by god , then we are as righteous as christ , argueth the antinomian : and this absurdity the papists would put on us . . it keeps a man in a slavish servile way in all his duties : for , how must that man be needs tossed up and down , which hath no other ground of peace , then the works of grace ? how is the humble heart soon made proud ? how is the heavenly heart soon become earthly ? now , you may see the scripture speaking much against doubting and feares ; and , james . it is made the canker-worm , that devoureth all our duties : therefore the scripture doth name some words that doe oppose this evangelicall temper of sons ; as , be not afraid , but beleeve ; so , why doubted ye ? the word signifieth to be in bivio , that a man cannot tell which wayes to take to , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to be carried up and down , as meteors in the aire . now , how can a man be bold by any thing that is his ? by faith we have confidence and boldnesse : faith is confidence , and faith works confidence ; but faith , whose object is christ , not any thing of ours : it 's made the first word also we can speak , when we are made sons , to cry , abba , father . . a man may as lawfully joyne saints or angels in his mediation with christ , as graces . why is that doctrine of making angels and saints mediators and intercessors so odious , but because it joyneth christ and others together in that great work ? dost not thou the like , when thou joynest thy love and grace with christs obedience ? the papist saith , let such and such an holy saint save me ; and thou sayest , let my holy love , let my holy repentance save me . what advantage then hast thou , if thou cryest down saints , and then makest thy self one in a popish way ? could therefore thy graces speak , they would say as the angel to john that would worship him , worship thou god , worship thou christ , put thy trust in christ ; he hath only born our sins , so as to take them away : and therefore , as grosse idolatry makes the works of god a god ; so doth more subtle idolatry make the works of christ , a christ . . it overthroweth the grace of hope . when faith is destroyed , then also hope is . this grace of hope is the great support of a christian : now , if it be placed in christ , and the promises , it is as firme as faith ; therefore saith the apostle of hope , rom. . it makes not ashamed : but , if it were an hope in our selves , how often should we be confounded ? that is good of austine , noli sperare de te , sed de deo tuo ; nam si speras de te , anima tua conturbatur ad te , quia nondum invenit unde sit secura de te : do not hope in thy self , but god ; for if so , thy soul will never finde ground for security . it 's an ignorant distinction among papists , that they may have a certainty of hope , but not of faith in matters of salvation : whereas they have both the like certainty , and differ onely thus : faith doth for the present receive the things promised , and hope keeps up the heart against all difficulties , till it come to enjoy them . now , to have such an hope as the papists define , partly coming from gods grace , and partly from our merits , partim è gratia dei , and partim à meritis nostris proveniens , must needs be destructive . . it taketh away the glory due to god in this great work of justification . if you have not meat or drink but by god , shall you have pardon of sin without him ? abraham beleeved , and gave god glory : we are apt to account beleeving no glory to god ; but could we mortifie our corruptions more and more , could we exhaust and spend our selves , yet this is no more to give glory to god , then when we beleeve . now , it is good to possesse christians with this principle , to beleeve in christ , is to give glory to christ : we naturally would think , to go far on pilgrimages , to macerate our bodies , were likelier wayes for our salvation ; but this would be mans glory more then gods glory : therefore how did that wretched monk , dying , blasphemously say , redde mihi aeternam vitam , quam debes , pay me eternall life , which thou owest ? . it maketh sin , and the first adam more and greater for condemnation , then christ for salvation . now the apostle , rom. . makes the opposition , and sheweth , that the gift is far above the transgression : therefore take thy sins in all the aggravations of them , there is not more in them to damne , then in christ to save . why should sin be an heavie sin , a great sin , and christ not also a wonderfull saving christ ? when we say , the guilt of sin is infinite , that is , onely infinite objectivè ; but now christs merits and obedience are infinite meritoriè : they have from the dignity of the person an infinite worth in them ; and therefore , as sin is exceeding sinfull , so let christ be an exceeding christ , and grace exceeding grace . . it overthroweth the true doctrine of sanctification : which declareth it to be inchoate , and imperfect ; that our faith hath much unbelief in it , our best gold much drosse , our wine much water . it is true , both the papists and the antinomian agree in this errour , that because sin is covered , therefore there can be no sin seen in the godly ; that the soul in this life is without spot and wrinkle : but they doe it upon different grounds ; whereas paul , rom. . doth abundantly destroy that principle . how blasphemous is that direction of the papists to men dying , who are to pray thus : o lord , joyn my obedience with all the suffrings of christ for me , conjunge ( domine ) obsequium meum cum omnibus quae christus passus est pro me ? and how absurd is that doctrine , si bona opera sunt magis bona , quàm mala opera mala , fortiùs merentur vitam aeternam ? . it taketh away the true doctrine of the law , as if that were possible to be kept : for , works could not justifie us , unlesse they were answerable to that righteousnesse which god commands ; but rom. . that which was impossible for the law , christ hath fulfilled in us . . it overthroweth the consideration of a man , while he is justified : for , they look upon him as godly , but the scripture as ungodly ; rom. . who justifieth the ungodly . some by [ ungodly , ] meane any prophane man , whereas it is rather one that is not perfectly godly ; for abraham is here made the ungodly person : i know , it is explained otherwise ; but , certainly this is most genuine . use . of instruction . how uncharitably and falsly many men charge it generally upon our godly ministers , that they are nothing but justitiaries , and legall preachers ? for , do not all sound and godly ministers hold forth this christ , this righteousnesse , this way of justification ? do not all our protestant authours maintain this truth , as that which discerneth us from heathens , jewes , papists , and others in the world ? may not these things be heard in our sermons daily ? use . it is not every kind of denying the law , and setting up of christ and grace , is presently antinomianisme . luther , writing upon genesis , handling that sin of adam , in eating of the forbidden fruit , speaketh of a fanatique , as he calls him , that denyed adam could sinne , because the law is not given to the righteous . now , saith bellarmine , this is an argument satis aptè deductum ex principiis lutheranorum , because they deny the law to a righteous man. here you see he chargeth antinomianisme upon luther ; but of these things more hereafter . use . to take heed of using the law for our justification . it 's an unwarranted way ; you cannot finde comfort there : therefore let christ be made the matter of your righteousnesse and comfort more then he hath been . you know , the posts that were not sprinkled with bloud , were sure to be destroyed ; and so are all those persons and duties , that have not christ upon them . christ is the propitiation , and the hebrew word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , used for covering , and propitiating of sinne , is genes . . used of the pitch or plaister , whereby the wood of the ark was so fastened , that no water could get in : and it doth well resemble the atonement made by christ , whereby we are so covered , that the waters of gods wrath cannot enter upon us . and do not think , to beleeve in christ , a contemptible and unlikely way ; for , it is not , because of the dignitie of faith , but by christ . you see the hyssop ( or whatsoever it was ) which did sprinkle the bloud , was a contemptible herb , yet the instrument to represent great deliverance . lecture iii. tim . . , . knowing the law is good , if a man use it lawfully . it is my intent , after the cleare proofe of justification by the grace of god , and not of works , to shew how corrupt the antinomian is in his inferences hence-from ; and , this being done , i shall shew you the necessity of holy and good works notwithstanding . but before i come to handle some of their dangerous errours in this point , let me premise something , as , . how cautelous and wary the ministers of god ought to be in this matter , so to set forth grace , as not to give just exception to the popish caviller ; and so to defend holy works , as not to give the antinomian cause of insultation . while our protestant authors were diligent in digging out that precious gold of justification by free-grace , out of the mine of the scripture ; see what canons the councell of trent made against them , as antinomian : can. . if any man shall say , the ten precepts belong nothing at all to christians , let him be accursed , decem praecepta nihil ad christianos pertinere , anathema sit . again , can. . if any man shall hold , that a justified person is not bound to the observation of the commandements , but only to believe , let him be accursed . si quis dixerit hominem justificatum non teneri ad observantiam mandatorum , sed tantùm ad credendum , anathema sit . again , can. . if any shall hold christ jesus to be given unto men , as a redeemer in whom they are to trust , but not as a law-giver , whom they are to obey , let him be accursed . si quis dixerit christum jesum datum fuisse hominibus ut redemptorem cui fidant , non autem ut legislatorem cui obediant , anathema sit . you may gather by these their canons , that we hold such opinions as , indeed , the antinomian-doth : but our writers answer , here they grossely mistake us ; and , if this were all the controversie , we should quickly agree . it is no wonder then if it be so hard to preach free-grace , and not provoke the papist ; or , on the other side , to preach good works of the law , and not offend the antinomian . . there have been dangerous assertions about good works , even by those that were no antinomians , out of a great zeale for the grace of god against papists . these indeed , for ought i can learn , did no wayes joyn with the antinomians : but in this point there is too much affinity . there were rigid lutherans called flacians , who as they did goe too far , at least in their expressions , about originall corruption ( for there are those that doe excuse them ; ) so also they went too high against good works : therefore in stead of that position , maintained by the orthodox , good works are necessary to salvation , bona opera sunt necessaria ad salutem ; they held , good works are pernicious to salvation , bona opera sunt perniciosa ad salutem . the occasion of this division was the book called , the interim , which charles the emperour would have brought into the germane churches . in that book was this passage , good works are necessary to salvation : to which melancthon and others assented ( not understanding a necessity of merit , or efficiency , but of presence ; ) but flacius illyricus and his followers would not , taking many high expressions out of luther ( even as the antinomians doe ) for their ground . hence also zanchy , because in his writings he had such passages as these , no man grown up can be saved , unlesse he give himself to good works , and walk in them : one hinckellman , a lutheran , doth endeavour , by a troop of nine arguments , to tread downe this assertion of zanchy , which he calls calviniana 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as a most manifest errour . now , if all this were spoken to take men off from that generall secret sin of putting confidence in the good works we doe , it were more tolerable : in which sense we applaud that of luther , take heed not only of evil works , but of good , cave non tantùm ab operibus malis , sed etiam à bonis ; and that of another man , who said , he got more good by his sins , then his graces : but these speeches must be soundly understood . we also love that of austin , all the commands are accounted as if thou hadst done them , when what is not done , is forgiven , omnia mandata tua facta deputantur , quando quicquid non fit , ignoscitur . . that is the incommodious , yea and erroneous passages in antinomian authors , were used for some reasons hereafter to be mentioned , it were the more tolerable : but that seems not to be . there is more poison then can be concocted in them . but if this were their ground of many unsavory assertions among them , meerly their want of clear judgement to expresse themselves , so that they think more orthodoxly then they write ; then they might be excused , as being in a logomachy : but with this proviso , as austine said of them that used the word fatum in a good sense , let them hold their opinion , but correct their expressions , mentem teneant , sed linguam corrigant . now , that there may be injudiciousnesse in them , as a cause in part of some of their erroneous passages , will appeare in that they frequently speake contradictions . this is a passage often , but very dangerous , that , let a man be a wicked man , even as high as enmity it self can make a man , yet while he is thus wicked , and while he is no better , his sins are pardoned , and he justified . yet now in other passages , though a man be never so wicked , yet if he come to christ , if he will take christ , his sinnes are pardoned : now what a contradiction is here , to be wicked and , while he is wicked , and , while he is no better , and yet to take christ , unlesse they hold that , to take christ , or , to come to him , be no good thing at all ? but happily more of their contradictions hereafter . their injudiciousnesse and weaknesse doth also appear , that when they have laid down such a truth as every godly author hath , they have so many words about it , and doe so commend it , as if they had found a philosophers stone , or a phenix ; as if the reader should presently cry out and say , behold a greater then solomon is here : and yet it is but that which every writer almost hath . again , their injudiciousnesse doth appeare , in that they minde only the promissory part of the scripture , and doe stand very little upon the mandatory part . there are five or six places , such as , christ came to save that which was lost , and , he hath laid on him the iniquities of us all , &c. these are over and over again : but you shall seldome or never have these places urged , make your calling and election sure . work out your salvation with feare and trembling ; whereas all scripture is given for our use . therefore , . if weaknesse were all the ground of this controversie , the danger were not so great . or , ly , if the end and aime they had , were only to put men off from glorying in themselves , to deny the concurrence of works to the act of justification . if their desire were that men should not ( as michal ) put an image in davids roome , so neither that christians should put their works in christs stead , thus farre it might be excusable : but then their books , and their aimes cannot be reconciled . or , if , ly , their maine drift was only to shew that good works follow a justified person , and that they doe not antecede ; here would be no opposition : but they deny the presence of them in time . or , ly , if the question were about preparatory works to justification and conversion ; though ( for my part ) i think there are such , with those limitations that hereafter may be given to them : this also were not so hainous . or fifthly , if the dispute were onely upon the space of time between a profane mans profanenesse , and his justification , or the quantity of his sorrow ; these things were of another debate . i do acknowledge , that the christian religion was matter of offence to the heathens , in that they taught , though a man had never been so wicked , yet , if he did receive christ , he should be pardoned ; and how soon this may be done , it is as god pleaseth : but there is an alteration of the mans nature at that time also ; and chrysostome , indeed , hath such a passage upon that scripture , the righteous shall live by faith , rom. . by faith onely a man hath remission of sins ; now ( saith he ) this is a paradox to humane reason , that he who was an adulterer , a murderer , should presently be accounted righteous , if he doe beleeve in christ : but this differs from the antinomian assertion , as much as heaven from hell . so it 's related in ecclesiasticall history of constantine the great , that when he had killed many of his kindred , yea and was counselled also to murder his own son , repenting of these hainous crimes , askt sopater the philosopher , who succeeded plotinus in teaching him , whether there could be any expiation for those sins ? the philosopher said , no : afterwards he asked the christian bishops , and they said , i , if he would beleeve in christ . this was feigned , to make our religion odious . or sixthly , if it were to shew , that there cannot be assurance before justification , or that to relye upon christ for pardon , it is not necessary i should know whether i have truly repented , or no ; this were also of another nature . therefore let us see what prejudiciall inferences they gather from this doctrine of justification . i know , the proper place of handling this will come , when we speak of that point ; but yet , to give some antidote against their errours , i will name some few : as , . denying them to be a way to heaven . thus one expresly ( sect. . on christ being a way , pag. . ) it is a received conceit among many persons , that our obedience is a way to heaven ; though it be not causa , yet it's via ad regnum : now this he labours to confute . as for the speech it self , divines have it out of bernard , where , among other encomium's of good works , calling them seeds of hope , incentives of love , signes of hidden predestination , and presages of future happinesse , spei quaedam seminaria , charitatis incentiva , occultae praedestinationis indicia , futurae felicitatis praesagia , he addeth this , the way to the kingdome , not the cause of reigning , via regni , non causa regnandi . now it 's true , that they are not a way in that sense that christ is called a way , no more then the spirituall life of a christian is life in that sense christ stileth himself life ; for , here he understands it of himself , as the causall and meritorious way : therefore there are articles added to every one , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and that which followeth makes it cleare , no man can come to the father , but by me . object . oh , but say they , our works are our businesse and imployment , not our way . sol. i answer , when we call them a way , it 's a metaphor , and such a metaphor , that the scripture doth often delight in : thus the wayes of god are said to be perfect , deut. . that is , the works of the lord ; and thus , when it 's applyed to men , if signifieth any religion , doctrine , manners , actions , or course of life , pet. . , , . so that good works are both our way , and imployment ; for an imployment and way in this sense are all one . thus matth. . . strait is the way that leadeth to life : what is this , but the work of grace and godlinesse ? for , as for that exposition of the same author , to understand it of christ , as if he were strait , because men do account him so , and therefore would adde works to him , this is to compell scripture to go two miles with us , that would not go one ; and then , by the opposition , not wickedness , but the devil himself would be the broad way . . denying the presence of them in the person justified . and truly , this is so dangerous , that i know not how charity can excuse it : it is such a naevus , that ubera charitatis cannot tegere , cover it . for , thus saith the authour expresly , speaking of that of paul , therefore we conclude , a man is justified without the deeds of the law : here ( saith he ) the apostle doth not only exclude works from having any power operative to concurre in the laying iniquities upon christ , but excludes all manner of works men can doe , to be present and existent in persons , when god doth justifie them . and he instanceth of a generall pardon for theeves and traitors : now ( saith he ) one may take the pardon as well as another . and so speaking upon that place [ he hath received gifts for men , even for the rebellious . ] he concludes , that therefore though a man doe rebell actually from time to time , and doe practise this rebellion ; yet , though this person do thus , the hatefulnesse thereof is laid upon christ : is not this such a doctrine that must needs please an ungodly heart ? . in the denying of gaining any thing by them , even any peace of heart , or losing it by them . now this goeth contrary to scripture . thus page . ( the antinomian saith ) the businesse we are to do is this , that though there be sinnes committed , yet there is no peace broken , because the breach of peace is satisfied in christ ; there is a reparation of the damage before the damage it self be committed . and again , page . if god come to reckon with beleevers for sinne , either he must aske something of them , or not ; if not , why are they troubled ? if so , then god cannot bring a new reckoning . and in other places , if a man look to get any thing by his graces , he will have nothing but knocks . to answer these , it is true , if a man should look by any repentance or grace to have heaven and pardon , as a cause or merit , this were to be ignorant of the imperfection of all our graces , and the glorious greatnesse of those mercies : what proportion hath our faith , or godly sorrow with the everlasting favour and good pleasure of god ? but first , the scripture useth severe and sharp threatnings even unto the godly , where they neglect to repent , or goe on in sin , rom. . . if ye live after the flesh , you shall die : especially consider that place , hebr. . two last verses ; the apostle alludeth to that place , deut. . and he saith , our god ( as well as the god of the jewes , who appeared in terrour ) is a consuming fire : now then , if the scripture threatens thus to men living in sin , if they doe not , they may finde comfort . secondly , our holy duties , they have a promise of pardon , and eternall life , though not because of their worth , yet to their presence : and therefore may the godly rejoyce when they finde them in themselves . lastly , their ground is still upon that false bottome , because our sinnes are laid upon christ. what then ? they may be laid upon us in other respects , to heale us , to know how bitter a thing it is to sinne against god. god doth here , as joseph with his brethren ; he caused them to be bound , and to be put in gaoles , as if now they were to smart for their former impiety . . in denying them to be signes and testimonies of grace , or christ dwelling in us . and here , indeed , one would wonder to see how laborious an author is to prove , that no inherent graces can be signes : and he selects three instances , of universality of obedience , of sincerity , and love to the brethren ; concluding , that there are two evidences only ; one revealing , which is the spirit of god immediately ; the other receiving , and that is faith . now , in answering of this , we may shew briefly how many weak props this discourse leaneth upon : . in confounding the instrumentall evidencing with the efficient ; not holy works ( say they ) but the spirit : here he doth oppose subordinates ; subordinata non sunt opponenda , sed componenda . as if a man should say , we see not by the beames , or reflection of the sun , but the sun. certainly , every man is in darknesse , and , like hagar , seeth not a fountaine , though neare her , till her eyes be opened . thus it is in grace . . we say , that a christian , in time of darknesse and temptation , is not to go by signes and marks , but obedientially to trust in god , as david calls upon his soul often ; and the word is emphaticall , signifying such a relying or holding , as a man doth that is falling down into a pit irrecoverably . . his arguments , against sincerity , and universality of obedience , goe upon two false grounds : . that a man cannot distinguish himself from hypocrites ; which is contrary to the scriptures exhortation . . that there can be no assurance , but upon a full and compleat work of godlinesse . all which are popish arguments . . all those arguments will hold as strongly against faith ; for , are there not many beleevers for a season ? is there not a faith that indureth but for a while ? may not then a man as soon know the sincerity of his heart , as the truth of his faith ? now let us consider their grounds for this strange assertion , . because , roman . . it is said , that god justifieth the ungodly . now this hath a two-fold answer ; . that which our divines doe commonly give , that these words are not to be understood in sensu composito but diviso , and antecedenter : he that was ungodly , is , being justified , made godly also , though that godlinesse doe not justifie him . therefore they compare these passages with those of making the blinde to see , and deafe to heare ; not that they did see while they were blind , but those that were blind doe now see : and this is true and good . but i shall , secondly , answer it , with some learned men , that ungodly there is meant of such , who are so in their nature considered , having not an absolute righteousnesse , yet at the same time beleevers , even as abraham was ; and faith of the ungodly man is accounted to him for righteousnesse : so then , the subject of justification is a sinner , yet a beleever . now it 's impossible that a man should be a beleever , and his heart not purified , acts . for whole christ is the object of his faith , who is received not onely to justifie , but to sanctifie . hence rom. . where the apostle seemeth to make an exact order , he begins with prescience , ( that is approbative and complacentiall , n●● in a popish or arminian sense ) then predestination , then calling , then justification , then glorification . i will not trouble you with the dispute , in which place sanctification is meant . now the antinomian , he goeth upon that as true , which the papist would calumniate us with , that a profane ungodly man , if beleeving , shall be justified : we say , this proposition supposeth an impossibility , that faith in christ , or closing with him , can stand with those sins , because faith purifieth the heart ; by faith christ dwells in our hearts , ephes . . therefore those expressions of the antinomians are very dangerous and unsound , and doe indeed confirme the papists calumnies . another place they much stand upon is rom. . christ dyed for us while we were enemies , while we were sinners : but , . if christ dyed for us while we were enemies , why doe they say , that if a man be as great an enemy as enmity it selfe can make a man , if he be willing to take christ , and to close with christ , he shall be pardoned ? ( which , we say , is a contradiction . ) for , how can an enemy to christ , close with christ ? so that this would prove more then in some places they would seem to allow . besides , christ dyed not only to justifie , but save us : now will they hence therefore inferre , that profane men , living so , and dying so , shall be saved ? and indeed the grand principle , that christ hath purchased and obtained all graces antecedently to us , in their sense , will as necessarily inferre , that a drunkard , abiding a drunkard , shall be saved , as well as justified . but , thirdly , to answer that place , when it is said , that christ dyed , and rose again for sinners , you must know , that this is the meritorious cause of our pardon and salvation ; but , besides this cause , there are other causes instrumentall , that go to the whole work of justification : therefore some divines , as they speak of a conversion passive and active , so also of a justification active and passive ; and passive they call , when not onely the meritorious cause , but the instrument applying is also present , then the person is justified . now these speak of christs death as an universall meritorious cause , without any application of christs death unto this or that soule : therefore still you must carry this along with you , that , to that grand mercy of justification , something is requisite as the efficient , viz. the grace of god ; something as meritorious , viz. christs suffering ; something as instrumentall , viz. faith ; and one is as necessary as the other . i will but mention one place more , and that is psal . . . thou hast received gifts even for the rebellious also , that the lord god may dwell among them . here they insist much upon this , yea for the rebellious ; and saith the author , pag. . seeing god cannot dwell where iniquity is , christ received gifts for men , that the lord god might dwell among the rebellious ; and by this meanes , god can dwell with those persons that doe act the rebellion , because all the hatefulnesse of it is transacted from those persons upon the back of christ. and , saith the same author , pag. . the holy ghost doth not say , that the lord takes rebellious persons and gifts , and prepares them , and then will come and dwell with them ; but even then , while they are rebellious , without any stop , the lord christ hath received gifts for them , that the lord god may dwell among them . is not all this strange ? though the same authour presse sanctification never so much in other places , yet certainly such principles as these overthrow it . but as for this place , it will be the greatest adversary they have against them , if you consider the scope of it ; for , there the psalmist speaks of the fruit and power of christs ascension , as appeareth ephes . . whereby gifts were given to men , that so even the most rebellious might be converted , and changed by this ministery ; so that this is clean contrary : and besides , those words , with them , or among them , are not in the hebrew ; therefore some referre them to the rebellious , and make jah in the hebrew , and elohim , in the vocative case , even for the rebellious ( o lord god ) to inhabit ; as that of esay , the wolfe and the lamb shall dwell together : some referre it to gods dwelling , yet doe not understand it of his dwelling with them , but of his dwelling , i. e. fixing the arke after the enemies are subdued . but take our edition to be the best ( as it seemeth to be ) yet it must be meant of rebels changed by his spirit ; for the scripture useth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of gods dwelling in men , but still converted , rom. . . ephes . . . cor. . . lecture iv. tim . . , . knowing the law is good , if a man use it lawfully . having confuted some dangerous inferences , that the antinomian makes from that precious doctrine of justification , i shall at this time answer only one question , upon what grounds are the people of god to be zealous of good workes ? for it 's very hard to repent , to love , to be patient , or fruitfull , and not to doe them for this end , to justifie us : and , howsoever theologically , and in the notion , we may make a great difference between holinesse as a way or meanes , and as a cause or merit of salvation ; yet practically the heart doth not use to distinguish so subtilely . therefore , although i intend not to handle the whole doctrine of sanctification or new obedience at this time ; yet i should leave my discourse imperfect , if i did not informe you , how good works of the law done by grace , and justification of the gospel , may stand together . first therefore take notice what we meane by good works . we take not good works strictly , for the works of charity or liberality ; nor for any externall actions of religion , which may be done where the heart is not cleansed ; much lesse for the popish good workes of supererogation : but for the graces of gods spirit in us , and the actions flowing from them : for , usually , with the papists and popish persons , good works are commonly called those superstitious and supererogant workes , which god never commanded : or , if god hath commanded them , they mean them as externall and sensible ; such as , coming to church , and , receiving of sacraments ; not internall and spirituall faith , and a contrite spirit , which are the soule of all duties : and if these be not there , the outward duties are like clothes upon a dead man , that cannot warme him , because there is no life within . therefore much is required even to the essence of a godly work , though it be not perfect in degrees : as , . it must be commanded by god. . it must be wrought in us by the spirit of god. all the unregenerate mans actions , his prayers , and services are sinnes . . it must flow from an inward principle of grace , or a supernaturall being in the soule , whereby a man is a new creature . . the end must be gods glory . that which the most refined man can doe , is but a glow-worm , not a starre : so that then onely is the work good , when , being answerable to the rule , it 's from god , and through god , and to god. . that the antinomian erreth two contrary wayes about good works : sometimes they speak very erroneously and grosly about them . thus islebius agricola , the first antinomian that was ( who afterwards joyned with others in making that wicked book , called , the interim ) and his followers , deliver these positions , that saying of peter , make your calling and election sure , is dictum inutile , an unprofitable saying , and peter did not understand christian liberty . so again , as soon as thou once beginnest to thinke , how men should live godlily and modestly , presently thou hast wandered from the gospel . and again , the law and works only belong to the court of rome . then , on the other side , they lift them up so high , that , by reason of christs righteousnesse imputed to us , they hold all our workes perfect , and so apply that place , ephes . . christs clensing his church , so , as to be without spot or wrinkle , even pure in this life . they tell us not onely of a righteousnesse or justification by imputation , but also saintship and holinesse by this obedience of christ : and hence it is , that god seeth no sin in beleevers . this is a dangerous position : and , although they have similies to illustrate , and distinctions to qualifie it ; yet , when i speak of imputed righteousnesse , there will be the proper place to shew the dangerous falshood of them . . you must , in the discourse you shall heare concerning the necessity of good works , carefully distinguish between these two propositions : good workes are necessary to beleevers , to justified persons , or to those that shall be saved ; and this , good works are necessary to justification and salvation . howsoever this later is true in some sense , yet , because the words carry as if holinesse had some effect immediately upon our justification and salvation , therefore i do wholly assent to those learned men , that think , in these two cases , we should not use such a proposition : . when we deale with adversaries , especially papists , in disputation ; for then we ought to speak exactly : therefore the fathers would not use the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of the virgin mary , lest they should seem to yeeld to nestorius , who denyed her to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . the second case is in our sermons and exhortations to people ; for , what common hearer is there , that , upon such a speech , doth not conceive that they are so necessary , as that they immediately work our justification ? the former proposition holds them offices and duties in the persons justified ; the other , as conditions effecting justification . . these good works ought to be done , or are necessary upon these grounds : . they are the fruit and end of christs death , titus . . it 's a full place : the apostle there sheweth , that the whole fruit and benefit of christs redemption is lost by those that live not holily . there are two things in our sins : . the guilt , and that christ doth redeem us from : . the filth , and that he doth purifie from : if christ redeem thee from the guilt of thy lusts , hee will purifie thee from the noisomenesse of them . and mark a two-fold end of this purification , that we may be a peculiar people : this word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , hierome saith , he sought for among humane authours , and could not finde it : therefore some think the seventy feigned this , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . it answers to the hebrew word segullah , and signifieth that which is precious and excellent , got also with much labour : so that this holinesse , this repentance of thine , it cost christ deare . and the other effect is , zealous of good workes . the greek fathers observe , the apostle doth not say followers , but zealous ; that doth imply great alacrity and affection . and , lest men should think we should onely preach of christ and grace ; these things speak , ( saith he ) and exhort : and calvin thinketh the last words [ let no man despise thee ] spoken to the people , because they are for the most part of delicate eares , and cannot abide plaine words of mortification . . there is some kind of analogicall relation between them and heaven , comparatively with evill works . so those places , where it 's said , if wee confesse our sins , he is not onely faithfull , but also just , to forgive us our iniquities : so tim. . . a crowne of righteousnesse , which the righteous judge , &c. these words doe not imply any condignity , or efficiency in the good things wee doe ; but an ordinability of them to eternall life : so that evill and wicked workes , they cannot be ordained to everlasting life , but these may . hence some divines say , that though godlinesse be not meritorious , nor causall of salvation , yet it may be a motive : as they instance ; if a king should give great preferment to one that should salute him in a morning , this salutation were neither meritorious , nor causall of that preferment , but a meer motive arising from the good pleasure of the king : and thus much they think that particle , for i was an hungry , doth imply . so that god , having appointed holinesse the way , and salvation the end , hence there ariseth a relation between one and the other . . there is a promise made to them . tim. . . godlinesse hath the promises ( as it is in the originall ; ) because there are many promises scattered up and down in the word of god : so that to every godly action thou doest , there is a promise of eternall life . and hereby , though god be not a debtor to thee , yet he is to himselfe , and to his owne faithfulnesse ; reddis debita , nulli debens , cryed austine : so that the godly may say , oh , lord , it was free for thee before thou hadst promised , whether thou wouldst give me heaven or no ; but now the word is out of thy mouth : not but that we deserve the contrary , onely the lord is faithfull ; therefore , saith david , i will mention thy righteousnesse , i. e. faithfulnesse , onely : and the apostle , this is a faithfull saying , and worthy of all acceptation . this made them labour , and suffer shame . if you aske , how then is not the gospel a covenant of workes ? that in brief shall be answered afterwards . . they are testimonies whereby our election is made sure . pet. . ver . . make your calling and election sure . the vulgar translator interposeth those words [ per bona opera , ] and complaineth of luther , as putting this out of the text , because it made against him , but it 's no part of scripture . now observe the emphasis of the apostle , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 first they must be very diligent , and the rather ( which is spoken ex abundanti ) [ to make their calling and election sure ] what god doth in time , or what he hath decreed from eternity to us in love : [ to make sure , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . ] estius and other papists strive for firme , and not sure ; and so indeed the word is sometimes used : but here the apostle speaketh not of what it is in it selfe , but what it is to us , and the certainty thereof . and observe the apostles motives for making our election sure ; . ye shall never faile : the word is used sometimes of grievous , and sometimes of lesser sins ; but here hee meaneth such a failing , that a man shall not recover again . . an entrance shall be abundantly ministred into heaven . it 's true , these are not testimonies without the spirit of god. . they are a condition , without which a man cannot be saved . so that although a man cannot by the presence of them gather a cause of his salvation ; yet by the absence of them he may conclude his damnation : so that it is an inexcusable speech of the antinomian , good works doe not profit us , nor bad hinder us ; thus islebius . now the scripture , how full is it to the contrary ? rom. . . if ye live after the flesh , ye shall dye . so , except yee repent , yee shall all likewise perish . such places are so frequent , that it 's a wonder an antinomian can passe them all over , and alwaies speak of those places which declare gods grace to us , but not our duty to him . without holinesse no man can see god : now , by the antinomians argument , as a man may be justified while he is wicked , and doth abide so ; so also he may be glorified and saved : for this is their principle , that , christ hath purchased justification , glory , and salvation for us , even though sinners and enemies . . they are in their owne nature a defence against sinne and corruption . if we doe but consider the nature of these graces , though imperfect , yet that will pleade for the necessity of them . eph. . , . there you have some graces a shield , and some a breast-plate : now every souldier knoweth the necessity of these in time of war. it 's true , the apostle speaks of the might of the lord , and prayer must be joyned to these ; but yet the principall doth not oppose the instrumentall . hence rom. . they are called the weapons of the light. it 's luthers observation , he doth not call the works of darknesse , the weapons of darknesse ; but good works he doth call weapons , because we ought to use good works as weapons , quia bonis operibus debemus uti tanquam armis , to resist satan : and he calls them weapons of light , because they are from god , the fountaine of light ; and because they are , according to scripture , the true light ; although drusius thinketh light is here used for victory , as jud. . . psal . . , . and so the word is used by homer : and marcellinus speaks of an ancient custome , when , at supper time , the children brought in the candles , they cryed , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . . they are necessary by a naturall connexion with faith , and the spirit of god : hence it 's called faith which worketh by love . the papist lorinus thinketh we speak a contradiction , because sometimes wee say , faith only justifieth ; sometimes , that unlesse our faith be working , it cannot justifie us : but here is no contradiction ; for it 's onely thus : faith , which is a living faith , doth justifie , though not as it doth live ; for faith hath two notable acts : . to apprehend and lay hold upon christ , and thus it justifieth . . to purifie and cleanse the heart , and to stirre up other graces , and thus it doth not : and thus paul and james may be reconciled ; for james brings that very passage to prove abraham was not justified by faith alone , which paul brings to prove he was ; because one intends to shew that his faith was a working faith ; and the other , that that alone did concurre to justifie : and thus in this sense some learned men say , good workes are necessary to preserve a man in the state of justification , although they doe not immediately concurre to that act : as in a man , although his shoulders and breast do not concur immediatly to the act of seeing ; yet if a mans eye and head were not knit to those parts , hee could not see : and so , though the fire doe not burne as it is light , yet it could not burn unlesse it were so ; for it supposeth then the subject would be destroyed . it 's a saying of john husse , where good workes are not without , faith cannot be within , ubi bona opera non apparent ad extra , ibi fides non est ad intra : therefore , as christ , while he remained the second person , was invisible , but when he was incarnated , then he became visible ; so must thy faith be incarnated into works , and it must become flesh as it were . . they are necessary by debt and obligation : so that god by his soveraignty might have commanded all obedience from man , though he should give him no reward of eternall life : therefore durand did well argue , that we cannot merit at gods hand , because the more good wee are enabled to doe , wee are the more beholding to god. hence it is , that we are his servants , servus non est persona , sed res : and we are more servants to god , then the meerest slave can be to man ; for , we have our being and power to work from him : and this obligation is so perpetuall and necessary , that no covenant of grace can abolish it ; for , grace doth not destroy nature , gratia non destruit naturam . . by command of god. this is the will of god , your sanctification : so that you may prove what is that good and acceptable will of god. and thus the law of god still remaineth as a rule and directory : and thus paul professed hee delighted in the law of god in his inward man ; and that place , rom. . presseth our renovation , comparing us to a sacrifice , implying we are consecrated , and set apart to him ( a dog or a swine might not be offered to god : ) and the word [ offer ] doth imply our readinesse and alacrity . he also addeth many epithets to the will of god , that so we may be moved to rejoyce in it . there is therefore no disputing or arguing against the will of god. if our saviour , matth. . saith , he shall be least in the kingdome of heaven , that breaketh the least commandement ; how much more inexcusable is the antinomian , who teacheth the abolition of all of them ? . they are necessary by way of comfort to our selves . and this opposeth many antinomian passages , who forbid us to take any peace by our holinesse . now it 's true , to take them so as to put confidence in them , to take comfort from them , as a cause , that cannot be ; for , who can look upon any thing he doth with that boldnesse ? it was a desperate speech of panigarola a papist ( as rivet relates ) who called it folly to put confidence onely in christs bloud . we know no godly man satisfieth his own heart in any thing he doth , much lesse can hee the will of god. wee cannot at the same time say , lord , forgive me , and , pay me what thou owest ; yet these good works , though imperfect , may be a great comfort unto us , as the testimony of gods eternall love to us . thus did hezekiah , kings . . hezekiah is not there a proud pharisee , but a thankfull acknowledger of what is in him : and some consider , that this temptation might fall upon hezekiah , that when he had laboured to demolish all those superstitions , and now became dangerously sick that hee had not done well ; therefore he comforts himselfe in his heart , that hee did those things with , not that he meant an absolute perfect heart , but a sincere , and comparatively perfect . hence it 's observed , the word i have walked , is in hiphil , i have made my selfe to walke ; implying the dulnesse , and sluggishnesse , and aversnesse he found in his heart to that duty : so that prayer being , as one calls it well , speculum animi , the soules glasse , you may gather what was a comfort to him . thus paul , tim. . i have fought a good fight , &c. it is true , those words , a crown of righteousnesse , the just judge , and render , doe not prove any merits in paul , as the papists plead ; but yet paul declareth this , to keep up his heart against all discouragements . we are not therefore to take comfort from them , so as to rest in them ; but so as to praise god thereby . it 's a good way , nesciendo scire , that so wee may praise god for them ; and , sciendo nescire , that so we may be humble in our selves . . they are necessary in respect of god , both in that hee is hereby pleased , and also glorified . when we say , they are necessary in respect of god , we understand it declaratively , to set forth his glory ; for , when god is said to be the end of all our actions and goodnesse , he is not finis indigentiae , an end that needs them ; but finis assimilationis , an end that perfects those things , in making them like him : now two waies they relate to god ; . god is hereby pleased ; so the apostle , hebr. . hee is well pleased : so that as leah , though blear eyed , yet , when shee was fruitfull in children , said , now my husband will love me ; so may faith say , now god will love me , when it abounds in the fruits of righteousnesse ; for , our godly actions please god , though imperfect ; onely the ground is , because our persons were first reconciled with god. secondly , they referre to god , so as to glorifie him ; as his name is blasphemed , when we walke in all wickednesse . it 's true , it 's gods grace to account of this as his glory , seeing it 's so defective . . they are necessary in regard of others . matth. . . let your light shine before men . hee doth not there encourage vain-glory , but he propounds the true end of our visible holinesse ; for godlinesse , being light , it ought not to be under a bushell . hence , both in the tabernacle and temple , the light was placed in the midst ; and it ought to extend to others , that hereby they may glorifie god in heaven : as , when we see an excellent picture , we doe not praise that so much , as the artificer who made it . wee ought so to walk , that men should glorifie god , who hath made us so heavenly , so humble , so mortified . hierome said of austin , that he did diligere christum habitantem in augustino ; so ought we to walk , that others may love christ dwelling in us . pet. . . it 's an exhortation to wives , so to walke , that their husbands may be won to the lord. thou prayest for thy husband in a carnall condition , thou wouldst have him go heare such a minister , and such sermons ; see that thy life also may convert him . the apostle by the phrase , without the word , meaneth the publique preaching ; so that the wives life may preach to him all the day : and that same phrase , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , doth imply , . the great price that every mans soule is worth ; . the delight that they ought to take in converting of others , even the same that merchants doe in their trade . . holinesse and godlinesse inherent is the end of our faith and justification : and that is the meaning of our divines , who say , charity , or love of god is the end of faith , because god hath appointed this way of justification by faith , till he hath brought us into eternall glory , and there we have perfect inherent holinesse , though even then the glory and honour of all that shall be given to christ . now , indeed , it hath pleased god to take another way for our acceptation , then shall be hereafter ; not but that god might , if he had pleased , have given us such a measure of grace inherent , whereby we might have obtained eternall life , being without sin , and conformable to his will : but this way hath pleased his wisdome , that so christ and grace may be exalted , and wee for our sins debased in our selves . therefore good is that of anselme , terret me tota vita mea ; namapparet mihi aut peccatum , aut tota sterilitas : my whole life terrifieth me , for i see nothing but sin , or barrennesse . only this may make for the excellency of sanctification , that therefore is christ , and grace , and justification , and all , that at last we may be made perfectly holy . now some divines have gone further , but i cannot goe along with them : as , . those that doe give them causality and efficiencie of our justification and salvation : and , if they should use the word efficiency in a large sense , it might be true , but dangerous : but otherwise , to take efficient strictly , they cannot ; for so was the covenant of works at first . adams obedience would not have meritoriously , but efficiently procured his happinesse . hence , by the apostle , faith is not included as works are rejected , for they are rejected as efficients of our salvation ; but faith is included as the instrumentall and passive receiving of it . . some learned men have said , though good works doe not merit eternall life , for that is wholly purchased by christs death ; yet , say they , accidentall degrees of glory our godlinesse may obtaine : but that is not safe ; for , first , it 's questioned by some , whether there be such degrees at all , or no ; but grant it , yet even that must be of grace as well as others . lastly , some hold our temporall mercies to come to us by a covenant of workes , but not our spirituall : this also is hard ; for , we may have these good things either by christ , or else by the forbearance of god , who doth not take the advantage against us for our sins . i shall say no more of this , then by answering a main doubt . object . if good workes be still necessarily requisite , why then is not the covenant of grace still a covenant of works : not as at first in adam , when they were to be perfect and entire ; but by grace , pardoning the imperfection of them , in which sense the arminians affirme it ? answ . although good workes be requisite in the man justified or saved , yet it 's not a covenant of workes , but faith : and the reason is , because faith only is the instrument that receiveth justification and eternall life ; and good workes are to qualifie the subject beleeving , but not the instrument to receive the covenant : so that faith onely is the condition that doth receive the covenant , but yet that a man beleeve , is required the change of the whole man ; and that faith onely hath such a receiving nature , shall be proved hereafter ( god willing ) . use . of exhortation , to take heed , you turne not the grace of god into licentiousnesse : suspect all doctrines that teach comfort , but not duty ; labour indeed to be a spirituall anatomist , dividing between having godlinesse , and trusting in it : but take heed of separating sanctification from justification . be not a pharisee , nor yet a publican : so that i shall exhort thee at this time , not against the antinomianisme in thy judgement onely , but in thine heart also . as luther said , every man hath a pope in his belly ; so every man an antinomian . paul found his flesh rebelling against the law of god , reconcile the law and the gospel , justification and holinesse . follow holinesse as earnestly , as if thou hadst nothing to help thee but that ; and yet rely upon christs merits as fully , as if thou hadst no holinesse at all . and what though thy intent be onely to set up christ and grace , yet a corrupted opinion may soon corrupt a mans life ; as rheume , falling from the head , doth putrefie the lungs , and other vitall parts . lecture v. tim. . . knowing this , that the law is not made for a righteous man. we are at this time to demolish one of the strongest holds that the adversary hath : for , it may be supposed , that the eighth verse cannot be so much against them , as the ninth is for them : therefore austin observeth well , the apostle ( saith he ) joyning two things , as it were contrary , together , doth monere & movere , both admonish and provoke the reader to finde out the true answer to this question , how both of them can be true . we must therefore say to these places , as moses did to the two israelites fighting , why fall you out , seeing you are brethren ? austin improveth the objection thus , if the law be good , when used lawfully , and none but the righteous man can use it lawfully , how then should it not be but to him , who onely can make the true use of it ? therefore , for the better understanding of these words , let us consider , who they are that are said to know : and secondly , what is said to be knowne . the subject knowing is here in this verse in the singular number , in the verse before in the plurall : it 's therefore doubted , whether this be affirmed of the same persons or no. some expositors thinke those in the eighth , and these in the ninth , are the same , and that the apostle doth change the number from the plurall to the singular ; which is very frequent in scripture : as , galat. . . others ( as salmeron ) make a mysticall reason in the changing , because ( saith he ) there are but few that know the law is not made for the righteous , therefore he speaketh in the singular number . there is a second kind of interpreters , and they do not make this spoken of the same , but understand this word , as a qualification of him that doth rightly use the law : thus , the law is good , if a man use it lawfully ; and he useth it lawfully , that knoweth it 's not made for the righteous . which of these interpretations you take is not much materiall : onely this is good to observe , that the apostle , using these words , we know , and knowing , doth imply , what understanding all christians ought to have in the nature of the law. secondly , let us consider , what law he here speaks of . some have understood it of the ceremoniall law , because of christs death that was to be abolished , and because all the ceremonies of the law were convictions of sinnes , and hand-writings against those that used them : but this cannot be ; for circumcision was commanded to abraham a righteous man , and so to all the godly under the old testament : and the persons , who are opposed to the righteous man , are such , who transgresse the morall law. others , that do understand it of the morall law , apply it to the repetition and renovation of it by moses : for , the law being at first made to adam upon his fall , wickednesse by degrees did arise to such an height , that the law was added because of transgressions , as paul speaketh : but we may understand it of the morall law generally ; onely take notice of this , that the apostle doth not here undertake a theologicall handling of the use of the law , ( for that he doth in other places ) but he brings it in as a generall sentence to be accommodated to his particular meaning concerning the righteous man here . we must not interpret it of one absolutely righteous , but one that is so quoad conatum and desiderium ; for the people of god are called righteous , because of the righteousnesse that is in them , although they be not justified by it . the antinomian and papist doe both concurre in this errour , though upon different grounds , that our righteousness and works are perfect , and therefore do apply those places ; a people without spot or wrinkle , &c. to the people of god in this life , and that not onely in justification , but in sanctification also . as ( saith the antinomian ) in a dark dungeon , when the doore is opened , and the sun-light come in , though that be dark in it self , yet it is made all light by the sun : or , as water in a red glasse , though that be not red , yet , by reason of the glasse , it lookes all red : so though we be filthy in our selves , yet all that god seeth in us looks as christs , not onely in justification , but sanctification . this is to be confuted hereafter . thirdly , let us take notice how the antinomian explaineth this place , and what he meanes by this text. the old antinomian , islebius agricola , states the question thus : whether the law be to a righteous man as a teacher , ruler , commander , and requirer of obedience actively : or , whether the righteous man doth indeed the works of the law , but that is passivè ; the law is wrought by him , but the law doth not work on him . so then , the question is not , whether the things of the law be done , ( for they say the righteous man is active to the law , and not that to him ) but , whether , when these things are done , they are done by a godly man , admonished , instructed , and commanded by the law of god : and this they deny . as for the later antinomian , he speaketh very uncertainly , and inconsistently : sometimes he grants the law is a rule , but very hardly and seldome ; then presently kicketh all down again : for , saith he , it cannot be conceived that it should rule , but also it should reigne ; and therefore think it impossible , that one act of the law should be without the other . the damnatory power of the law is inseparable from it : can you put your conscience under the mandatory power , and yet keep it from the damnatory ? ( assertion of grace page . again , the same author , page . ) if it be true that the law cannot condemne , it is no more a law , saith luther . i say not that you have dealt as uncourteously with the law , as did that king with davids servants , who cut off their garments by the midst : but you have done worse , for even , joab-like , under friendly words , you have destroyed the life and soule of the law. you can as well take your appendices from the law , as you terme them , and yet let it remain a true law ; as you can take the brains and heart of a man , and yet leave him a man still . by this it appeareth , that if the law doth not curse a man , neither can it command a man , according to their opinion . the same author again , pag. . he dare not trust a beleever to walk without his keeper [ the law , ] as if he judged no otherwise of him then of a malefactor in newgate , who would kill and rob if his jaylor were not with him : thus they are onely kept within the compasse of the law , but are not keepers of it . yet , at another time , the same author calls it a slander , to say , that they deny the law. now , who can reconcile these contradictions ? nor is this shufling and uncertainty any new thing ; for the old and first antinomian did many times promise amendment , and yet afterwards fell to his errour again ; after that he condemned his errour , and recanted his errour in a publike auditory , and printed his revocation , yet , when luther was dead , hee relapsed into that errour : so hard a thing it is to get poison out , when it 's once swallowed downe . in the fourth place we come to lay downe those things that may cleare the meaning of the apostle : and first know , that humane authors , who yet have acknowledged the help of precepts , doe speak thus much of a righteous man , onely to shew this , that he doth that which is righteous , for love of righteousnesse , not for feare of punishment : as aquinas said of his love to god , amo , quia amo ; & amo , ut amem . thus seneca , ad legem esse bonum exiguum est : it 's a poore small thing to be good onely according to the law . and so aristotle , lib. . polit. cap. . sheweth how a righteous man would be good , though there were no law ; as they say of a magistrate , he ought to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a living law . thus socrates said of the civill law , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and plato , polit. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , it is not fit to command or make lawes for those that are good . these sayings are not altogether true , yet they have some kinde of truth in them . hence it was that antisthenes said , a wise man was not bound by any lawes : and demonax told a lawyer , that all their lawes would come to nothing ; for good men did not need them , and wicked men would not be the better for them . and as the heathens have said thus , so the fathers : hierome , what needs the law say to a righteous man , thou shalt not kill , to whom it 's not permitted to be angry ? yet we see david , though a righteous man , needed this precept . but especially chrysostome , even from these words , doth wonderfully hyperbolize , a righteous man needs not the law , no not teaching or admonishing ; yea , he disdaines to be warned by it , he doth not wait or stay to learn of it . as therefore a musician or grammarian , that hath these arts within him , scorns the grammar , or to go to look to the rules ; so doth a righteous man. now these are but hyperbole's ; for what godly man is there , that needs not the word as a light , that needs it not as a goad ? indeed , in heaven the godly shall not need the law ; no more shall they the gospel , or the whole word of god. . there are three interpretations which come very neere one another , and all doe well help to the clearing of the apostle . . some learned men lay an emphasis in the word [ made ] 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . it is not made to a godly man as a burden , he hath a love and a delight in it ; lex est posita , sed non imposita : he doth not say , justi non habent legem , aut sunt sine lege ; sed non imminet eis tanquam flagellum , it 's not like a whip to them . the wicked wish there were no law , and cry out as he , utinam hoc esset non peccare ! the righteous man is rather in the law , then under it . it 's true , the word [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] in the generall doth signifie no more then to lye , or be , or is ; therefore , in athenaeus , ulpianus was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because of his frequent questions , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; where such or such a word might be found : but yet sometimes it signifieth to be laid to a thing , as to destroy it ; so matth. . . the axe is laid to the root of the tree , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the originall , and so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is for as much as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , posita for opposita , as we say positus obex . now this is to be understood so farre forth as he is righteous , otherwise the things of god are many times a burden to a godly man. let us not oppose then the works of the law , and the works of the spirit , grace and gospel ; for the same actions are the works of the law ratione objecti , in respect of the object ; and the works of the spirit ratione efficientis , in respect of the efficient . indeed the scripture opposeth grace and works , and faith and works , but in a clean other sense then the antinomian , in time is to be shewed . the second interpretation is of the damnatory and cursing part of the law : the law is not made to the beleever so , as he should abide under the cursing , and condemning power of it : and in this sense we are frequently denied to be under the law. it 's true , the godly are under the desert of the curse of the law , but not the actuall curse , and condemnation : nor doth it therefore follow , that there is no law , because it doth not curse ; for it 's a good rule in divinity , à remotione actûs secundi in subjecto impediti , non valet argumentum ad remotionem actûs primi ; from the removall of an act or operation , the argument doth not hold to the removing of the thing it self : as it did not follow , the fire did not burn the three worthies , therefore there was no fire ; god did hinder the act : and if that could be in naturall agents , which work naturally , how much rather in morall causes , such as the law is of condemnation , which works according to the appointment of god ? so then the law is not to curse or condemne the righteous man. the last interpretation is , that the law was not made because of righteous men , but unrighteous . had adam continued in innocency , there had not been such a solemne declaration of moses his law ; for it had been graven in their hearts : therefore , though god gave a positive law to adam , for the tryall of his obedience , and to shew his homage ; yet he did not give the morall law to him by outward prescript , though it was given to him in another sense : and so the phrase shall be like that proverb , e malis moribus bonae leges nascuntur , good lawes arise from evil manners : and certainly lawes , in the restraining and changing power of them upon the lives of men , are not for such who are already holy , but those that need to be made holy ; and so it may be like that of our saviour in a sense which some explaine it in , i come not to call the righteous , but sinners to repentance . by repentance they meane conversion , and by the righteous , not pharisees , but such as are already converted . thus tacitus annal. . usu probatum est leges egregias ex aliorum delictis gigni , &c. nam culpa quam poena , tempore prior ; emendari quam peccare posterius est ; excellent lawes are made , because of other mens delinquencies ; the fault goeth before the punishment , and sinne before the amendment . now that these interpretations , much agreeing in one , may the better be assented to , consider some parallel places of scripture : galat. . . speaking of the fruits of the spirit , against such there is no law ; the law was not made to these , to condemne them , or accuse them : so that what is said of the actions and graces of the godly , may be applyed to the godly themselves . you may take another parallel , rom. . . rulers are not a terrour to good works , but to evil : wouldst thou not be afraid of them ? doe no evil . and thus the apostle , to shew how the grace of love was wrought in the thessalonians hearts , i need not ( saith he ) write to you to love , for you have been taught of god to doe this : his very saying , i need not write , was a writing ; so that these expressions doe hold forth no more , then that the godly , so farre as they are regenerate , doe delight in the law of god , and it is not a terrour to them . and if because the godly have an ingenuous free spirit to doe what is good , he need not the law directing or regulating ; it would follow as well , he needed not the whole scripture , he needed not the gospel that calls upon him to beleeve , because faith is implanted in his heart . this rock cannot be avoided : and therefore upon this ground , because the godly are made holy in themselves , the swencfeldians did deny the whole scripture to be needfull to a man that hath the spirit : and that which the antinomian doth limit to the law , it is a killing letter , they apply to the whole scripture ; and i cannot see how they can escape this argument . hence chrysostome that spake so hyperbolically about the law , speaks as high about the scriptures themselves , we ought to have the word of god engraven in our hearts so , that there should be no need of scripture : and austin speakes of some , that had attained to such holinesse that they lived without a bible . now who doth not see what a damnable and dangerous position this would be ? that the law must needs have a directive , regulating , and informing power over a godly man , will appeare in these two particulars : . we cannot discerne the true worship of god from superstition and idolatry , but by the first and second commandement . it is true , many places in scripture speak against false worship , but to know when it is a false worship , the second commandement is a speciall director . how do the orthodox writers prove images unlawfull ? how do they prove that the setting up any part or meanes of worship which the lord hath not commanded is unlawfull , but by the second commandement ? and , certainly , the want of exact knowledge in the latitude of this commandement brought in all idolatry and superstition . and we shall shew you ( god willing , in time ) that the decalogue is not onely moses his ten commandements , but it 's christs ten commandements , and the apostles ten commandements as well as his . . another instance at this time is , in comparing the depth of the law , and the depth of our sinne together . there is a great deale more spirituall excellency and holinesse commanded in the law of god , the decalogue , then we can reach unto : therefore we are to study into it more and more : open mine eyes , that i may understand the wonderfull things of thy law ; thus david prayeth , though godly , and his eyes were in a great measure opened by the spirit of god. and as there is a depth in the law , so a depth in our originall and native sin : there is a great deale more filth in us , then we can or doe discover , psal . . who can understand his errours ? cleanse me from secret sins . therefore , there being such a world of filth in thy carnall heart , what need is there of the spirituall and holy law , to make thee see thy self thus polluted and abominable ? certainly , a godly man groweth partly by discovering that pride , that deadnesse , that filth in his soule he never thought of , or was acquainted with . the practicall use that is to be made of this scripture explained , is , to pray and labour for such a free heavenly heart , that the law of god , and all the precepts of it may not be a terrour to you , but sweetnesse and delight . oh how i love thy law ! cryeth david ; he could not expresse it . and again , my soul breaketh in the longing after thy judgements . in another place , he and job do account of them above their necessary food ; you do not hale and drag an hungry or thirsty man to his bread and water : i doe not speak this , but that it 's lawfull to eye the reward , as moses and christ did ; yea , and to fear god : for who can think that the scripture , using these motives , would stirre up in us sinfull and unlawfull affections ? but yet such ought to be the filiall and son-like affections to god and his will , that we ought to love and delight in his commandements , because they are his ; as the poore son loveth his father , though he hath no lordship or rich inheritance to give him . there is this difference between a free and violent motion : a free motion is that which is done for its own selfe sake ; a violent is that which cometh from an outward principle , the patient helping it not forward at all : let not , to pray , to beleeve , to love god , be violent motions in you . where faith worketh by love , this maketh all duties relish , thsi overcometh all difficulties . the lacedemonians , when they went to war , did sacrifice to love , because love only could make hardship , and wounds , and death it selfe easie . doe thou therefore pray , that the love of god may be shed abroad in thine heart ; and consider these two things : . how the law laid upon christ to dye , and suffer for thee , was not a burthen or terrour to him . how doth he witnesse this by crying out , with desire i have desired to drink of this cup ? think with thy self , if christ had been as unwilling to die for me , as i to pray to him , to be patient , to be holy , what had become of my soule ? if christ therefore said of that law , to be a mediatour for thee , lo , i come to doe thy will , o god , thy law is within mine heart ; how much rather ought this to be true of thee in any thing thou shalt doe for him ? thou hast not so much to part with for him , as he for thee . what is thy life and wealth to the glory of his god-head , which was laid aside for a while ? and then secondly , consider how that men love lusts for lusts sake , they love the world because of the world . now evill is not so much evill , as good is good ; sin is not so much sin , as god is god , and christ is christ . if therefore a profane man , because of his carnall heart , can love his sin , though it cost him hell , because of the sweetnesse in it ; shall not the godly heart love the things of god , because of the excellency in them ? but these things may be more enlarged in another place . lecture . vi. rom . . , . for when the gentiles which know not the law , do the things of the law by nature , these having not the law , are a law unto themselves : which shew the work of the law written in their hearts . before i handle the other places of scripture that are brought by the antinomians against the law , it is my intent , for better methods sake , and your more sound instruction , to handle the whole theology of the law of god in the severall distributions of it , and that positively , controversally , and practically ; and i shall begin first with the law of nature , that god hath imprinted in us , and consider of this two waies : . as it is a meere law ; and secondly , as it was a covenant of works made with adam : and then in time i shall speak of the morall law given moses , which is the proper subject of these controversies . the text i have read is a golden mine , and deserveth diligent digging and searching into : therefore , for the better understanding of these words , let us answer these questions : . who are meant by the gentiles here ? it is ordinarily known , that the jewes did call all those gentiles that were not jewes , by way of contempt ; as the greeks and romans called all other nations barbarians . hence sometimes in the scripture the word is applyed to wicked men , though jewes : as , psal . . why doe the heathen rage ? it may be interpreted of the pharisees resisting christ . indeed , the jewes will not confesse , that the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 gentes , is any where applyed to them : but this is very false , for genes . . abraham is there said to be the father of many nations , ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 gentes : ) therefore they must either deny themselves to be abraham's seed , or else acknowledge this word belonging to them . but generally it signifieth those that had not the lawes of moses , nor did live by them . therefore gal. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to live like a gentile , is , not to observe the lawes of moses : and in this sense it is to be taken here ; for the apostles scope is to make good that great charge upon all mankinde , both jew and gentile , that naturally they are wholly in sin ; and god , being no accepter of persons , will destroy the one as well as the other . and whereas it might be thought very hard to deale thus with the gentile , because no law was delivered unto him , as unto the jew , the apostle answereth that objection in this place . but grant it be understood of such gentiles , then there is a greater question whether it be meant of the gentiles abiding so , or the gentiles converted and turned beleevers ; for , that the apostle speaks of such , most of the latine interpreters , both ancient and modern , doe affirme : and so the greek father , chrysostome , and estius , a learned papist , doe think there are so many arguments for it , that it 's certaine . i confesse , they bring many probable reasons ; but i will not trouble you with them : this seemeth a strong argument against them , because the apostle speaks of such who are without a law , and a law to themselves , which could not be true of gentiles converted : we take the apostle therefore to speak of gentiles abiding so ; but in this sense there is also a dangerous exposition and a sound one . the poysonous interpretation is of the pelagians , who understand the law written in their hearts , in the same sense as it is used , jerem. . even such a fulfilling of the law which will attaine to salvation ; and this they hold the heathens by the law and help of nature did sufficiently : but this is to overthrow the doctrine of grace and christ . therefore the sound interpretation is of the gentiles indeed , but yet to understand the law written in their hearts , onely of those relicts of naturall reason and conscience , which was in the heathens , as is to be proved anon . the d. question is easily answered , how they are said to be without a law ; to wit , without a written law , as the jewes had ; so that we may say , they had a law without a law ; a law written , but not declared . the d. question , in what sense they are said to doe the things of the law , and that by nature . to doe the things of the law is not meant universally of all the heathens , for the apostle shewed how most of them lived in the chapter before : nor secondly universally in regard of the matter contained in the law , but some externall acts , as aristides and socrates , with others . and here it 's disputed , whether a meere heathen can doe any work morally good ? but wee answer , no : for every action ought to have a supernaturall end , viz. the glory of god , which they did not aime at ; therefore we do refuse that distinction of a morall good , and theologicall , because every morall good ought to be theologicall : they may do that good matter of the law , though not well . and as for the manner how , by nature ; those interpreters that understand this text of gentiles beleevers , say , nature is not here opposed to grace , but to the law written by moses ; and therefore make it nature enabled by grace : but this is shewed to be improbable . by nature therefore we may understand that naturall light of conscience , whereby they judged and performed some externall acts , though these were done by the help of god. the next question is , how this law is said to be written in their hearts ? you must not , with austine , compare this place with that gracious promise in jeremy , of god writing his law in the hearts of his people . there is therefore a two-fold writing in the hearts of men ; the first , of knowledge and judgement , whereby they apprehend what is good and bad : the second is in the will and affections , by giving a propenfity and delight , with some measure of strength , to do this upon good grounds . this later is spoken of by the prophet in the covenant of grace , and the former is to be understood here , as will appeare , if you compare this with chap. . . the last question is , how they declare this law written in their hearts ? and that is first externally , two waies : . by making good and wholesome lawes to govern men by ; and . by their practice , at least of some of them , according to those lawes : and secondly internally , by their consciences , in the comfort or feare they had there . observat . there is a law of nature written in mens hearts . and if this be not abolished , but that a beleever is bound to follow the direction and obligation of it , how can the antinomian think that the morall law , in respect of the mandatory power of it , ceaseth ? now , because i intend a methodicall tractate of the severall kindes of gods law , you might expect i should say much about lawes in generall ; but because many have written large volumes , especially the school-men , and it cannot be denyed but that good rationall matter is delivered by them ; yet , because it would not be so pertinent to my scope , i forbeare . i will not therefore examine the etymology of the words that signifie a law ; whether lex in the latine come of legendo because it was written to be read ( though that be not alwaies necessary ; ) or of ligando , because a law binds to obedience ; or of deligendo , because it selects some precepts : nor concerning 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the greek , whether it come of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is improbable ; or of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because it distributes to every one that which is right : neither the hebrew word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which some make to come of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to instruct and teach ; others of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that signifieth a disposition , or compiling of things together as lawes use to be . in the next place , i will not trouble you with the definition of a law , whether it be an act , or habit , or the soul it selfe : onely this is good to take notice of , against a fundamentall errour of the antinomian , about a law in generall ; for they conceive it impossible but that the damning act of a law must be where the commanding act of a law is , and this is frequently urged ( as i shewed the last time : ) therefore observe , that there are only two things goe to the essence of a law , ( i speak not of externall causes ) and that is , first , direction , secondly , obligation : . direction , therefore a law is a rule ; hence the law of god is compared to a light . and , prov. . . there is a notable expression of the law of nature , it 's a candle of the lord , searching the inwards of the belly . so it is observed , that the chaldee word for a law , is as much as light . the second essentiall constitute of a law is , obligation , for therein lyeth the essence of a sinne , that it breaketh this law , which supposeth the obligatory force of it . in the next place there are two consequents of the law which are ad bene esse , that the law may be the better obeyed ; and this indeed turneth the law into a covenant , which is another notion upon it , as afterwards is to be shewn . now as for the sanction of the law by way of a promise , that is a meere free thing ; god , by reason of that dominion which he had over man , might have commanded his obedience , and yet never have made a promise of eternall life unto him . and as for the other consequent act of the law , to curse , and punish , this is but an accidentall act , and not necessary to a law ; for it cometh in upon supposition of trangression : and therefore , as we may say of a magistrate , he was a just and compleat magistrate for his time , though he put forth no punitive justice , if there be no malefactors offending ; so it is about a law , a law is a compleat law oblieging , though it do not actually curse : as in the confirmed angels , it never had any more then obligatory , and mandatory acts upon them ; for that they were under a law is plaine , because otherwise they could not have sinned , for where there is no law , there is no transgression . if therefore the antinomian were rectified in this principle , which is very true and plain , he would quickly be satisfied : but of this more in another place . but wee come to the particulars of the doctrine , the pressing of which will serve much against the antinomian . therefore , for the better understanding of this law of nature , consider these particulars : . the nature of it in which it doth consist , and that is in those common notions and maximes , which are ingraffed in all mens hearts : and these are some of them speculative , that there is a god ; and some practicall , that good is to be imbraced , and evill to be avoided : and therefore aquinas saith well , that what principles of sciences are in things of demonstration , the same are these rules of nature in practicals : therefore we cannot give any reasons of them ; but , as the sun manifests it selfe by its owne light , so doe these . hence chrysostome observeth well , that god , forbidding murder , and other sins , giveth no reason of it , because it 's naturall : but , speaking of the seventh day , why that in particular was to be observed , he giveth a reason , because on the seventh day the lord rested , not but that the seventh day is morall , ( as some have denyed . ) but because it 's not morall naturall , onely morall positive , as the learned shew . . the difference of its being in adam and in us . this is necessary to observe ; for it was perfectly implanted in adams heart , but we have onely some fragments , and a meere shadow of it left in us . the whole law of nature , as it was perfectly instructing us the will of god , was then communicated to him : and howsoever god , for good reasons hereafter to be mentioned , did give , besides that law of nature , a positive law to try his obedience ; yet the other cannot be denyed to be in him , seeing he was made after gods image , in righteousnesse , and holinesse , and otherwise adam had been destitute of the light of reason , and without a conscience . therefore it 's a most impudent thing in socinus , to deny that adam had any such law or precept , and that hee could not lye , or commit any other sin though hee would ; for , it may not be doubted , but that if adam had told a lye , or the like , it had been a sin , as well as to eate of the forbidden fruit . . the naturall impression of it in us . we have it by nature ; it 's not a superadded work of god to put this into us . this assertion is much opposed by flaccus illyricus , who , out of his vehement desire to aggravate originall sin in us , and to shew how destitute we are of the image of god , doth labour to shew , that those common notions and dictates of conscience are infused de novo into us , and that wee have none of these by nature in us . and a godly man , in his book of temptations , holdeth the same opinion . illyricus indeed hath many probable arguments for his opinion , but he goeth upon a false supposition , that the apostle his scope is , to compare a gentile supposed onely to doe the law , and not asserted to doe it , before a jew who was an hearer of the law , but not a doer of it : therefore , to debase the jew , he saith , the apostle speaketh conditionally , to this purpose , if an heathen should keep the law , though he be not circumcised , yet he would be preferred before you ; not ( saith he ) that the apostle meaneth assertively and positively that any such doe : and therefore presseth the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is a particle of the subjunctive mood , and is equivalent to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , if the gentiles , &c. but his supposition is false ; for the apostle's scope is , to shew that the gentile hath no excuse if god condemne him , because hee hath a law in himselfe : as appeareth , verse . as for the other consideration of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , though erasmus render it [ cum fecerint ; ] yet that particle is applied to the indicative mood , as well as the subjunctive . it cannot therefore be true , which hee saith , that the apostle speaketh such great things of men by nature , that if they were true , it would necessarily justifie all pelagianisme . i shall not speak of his many arguments against naturall principles and knowledge of a god ; for he doth in effect at last yeeld to it . . the extent of it . and here it 's very hard to measure out the bounds of the law of nature ; for , some have judged that to be condemned by the law of nature , which others have thought the law of nature approveth : so true is that of tertullian , legem naturae opiniones suas vocant , they call their opinions the law of nature . there are foure waies of bounding this law . . some make it those generall things , wherein man and beast agree ; as , defence of it self , and desire of life : but by this meanes , that of naturall honesty and righteousnesse would be excluded ; for , a beast is not capable of any sin , or obligation by a law . and howsoever that be much disputed upon , why god would have the beast killed that killed a man ; yet , to omit the thoughts of many about it , that was not because a beast could be tyed by a law : but god , to shew the horridnesse of the fact , would have the very instrument punished . . some bound it by the custome of nations , that is , jus gentium ; but that is so diversified , that a sin with some was a vertue with others . . some doe bind it by reason in every man : but this is very uncertaine , and one mans reason is contrary to anothers , and one mans conscience is larger then anothers ; even as it is with measures in divers countries , though they have the same name , as a bushell , &c. yet they are different in quantity , one is larger then another . lastly , others bound it by the will of god , declared and manifested first to noah in seven precepts , and afterwards to moses in the ten commandements : but these extend the law of nature not onely to first principles , but conclusions also deduced from thence . . the obligation of it , when the law of nature doth bind : and that is from god the authour of it , god onely is under no law . every beleever , though justified by christ , is under the morall law of moses , as also the law of nature : but now this law of nature doth not so properly bind , as it's mans reason or conscience , as that it is the vicegerent of god , or a command from him : and thus cain by the law of nature found a tye upon him not to sin , and guilt because he did sin in murdering his brother , although there was no morall law as yet given . it is true , indeed , our divines doe well reprove the papists , for calling all that time from adam to moses , a state , or law of nature : and this the papists doe , that therefore to offer sacrifice unto god may be proved from the law of nature ; whereas those sacrifices , being done in faith , had the word of god , otherwise we were bound still to offer lambs or kids to god , which they deny . . the perpetuity of this obligation . this law can never be abrogated . and herein we may demand of the antinomian , whether the law of nature doe bind a beleever , or no ? whether he be bound to obey the dictates of his naturall conscience ? suppose a beleever hath his naturall conscience dictating to him , this sin he may not doe ; is he not obliged hereunto not onely from the matter ( for that he grants , ) but as it is a law and command of god implanted in his soule ? i know there is a difference between the law of nature , and the ten commandements , as may be shewed hereafter ; but yet they agree in this , that they are a rule immutable , and of perpetuall obligation . therefore think not , that because he dyed to free you from the curse of the law , that therefore you are freed from the obedience unto the law naturall , or delivered by moses . to deny this , is to deny that a beleever is bound to obey the sure dictates of a naturall conscience . i know we are not alwayes bound to follow what conscience suggests , for that is obscured and darkened ; but i speak of those dictates which are naturally known . other particulars , as , the insufficiency of it to direct in worship , as also , to save men , i do put off , and make application of what hath been delivered . use . of instruction , against the antinomian , who must needs overthrow the directive and obligative force of the law of nature , as well as that of moses ; doth not even nature teach you ( saith the apostle ? ) now if a man may not care for moses teaching , need he care for nature teaching ? it is true ( i told you ) sometimes they grant the law to be a rule , but then afterwards they speak such things as are absolutely inconsistent with it . there were some ( as wendelinus reports ) swencfeldians , that held a man was never truly mortified , till he had put out all sense of conscience for sinne ; if his conscience troubled him , that was his imperfection , he was not mortified enough . i should doe the antinomians wrong , if i should say , they deliver such things in their books ; but let them consider , whether some of their positions will not carry them neere such a dangerous rock : for , if the law have nothing to doe with me in respect of the mandatory part of it , then if i be troubled for the breach of it , it is my weaknesse , because i am not enough in christ . use . of reproofe , to those who live against this law. sins that are against the law of nature do most terrifie . how many live in such sins that the law of nature condemneth ? doth not nature condemne lying , couzening in your trades , lusts , and uncleannesse ? how many trades-men are there that need not a paul ? even tully in his book of offices will condemne their lying , sophisticate wares , and unlawfull gain . it 's much how farre they saw this way . sinnes against naturall conscience are called crying sinnes ; and , though men have repented of them , yet how long is it ere faith can still their cry ? have not many heathens been faithfull and just in their dealings ? it 's true , that man hath not godlinesse , who hath only naturall honesty ; therefore there are many spirituall sinnes that he never humbleth himself for : as paul saith , he knew not the motions of his heart to be sinne . hence men are to be exhorted to get further light , and more tendernesse then a naturall conscience can ever attain unto . neverthelesse , if men so live , as if they had not this law in their hearts , they are the more inexcusable : are there not men who call themselves christians , that yet the very heathens will condemne at that great day ? use . why it is so hard to beleeve in the lord christ ; because here is nothing of nature in it , it 's all supernaturall . the papists say , we make an easie way to heaven ; for , let a man be never so great a sinner , yet if he doe but beleeve , all is well . now the people of god , sensible of their sin , find nothing harder for , it 's in the law of nature they should not lye , or steale , but that they should beleeve in christ for pardon , when labouring under their offences , here nature doth not help at all . i acknowledge it 's a dispute among divines , whether in that law implanted in adams heart , there was not also a power to beleeve in christ , when revealed ? but of that hereafter ; but the orthodox deny , that he had explicite justifying faith , for that was repugnant to the condition he was in . but the thing i intend is , to shew how supernaturall and hidden the way of beleeving is . no marvell therefore if it be made such a peculiar work of the spirit , to convince of this sinne . lecture vii . rom . . . for when the gentiles , which have not the law , doe by nature the things of the law , &c. the doctrine already gathered from these words is , that , the gentiles have a law of nature written in their hearts : which law doth consist partly in light and knowledge of speculative principles ; and partly in practice and obedience to practicall principles . so then from hence we may consider , first , of the light of nature , and then secondly , of the power of nature ; and from both these we may have profitable matter , and also may confute some dangerous errours , which have poisoned too many . i shall begin therefore with the light of nature , or reason , and shall endeavour to shew the necessity of it , and yet the insufficiency of it : it is not such a starre that can lead us to christ . in the first place take notice , that this light of nature may be considered in a three-fold respect : first , as it 's a relict or remnant of the image of god : for , howsoever the image of god did primarily consist in righteousness and true holinesse ; yet secondarily it did also comprehend the powers and faculties of the reasonable soule in the acts thereof : and this later part abideth . it is true , this light of nature , comparatively to that of faith , is but as a glow-worme to the sun ; yet some light and irradiation it hath . god , when he made man , had so excellently wrought his owne image in him , that man could not fall , unlesse that were also destroyed ; as they write of phidias , who made alexanders statue , yet had wrought his own picture so artificially in it , that none could break alexanders statue , but he must also spoile phidias his image , who was the maker of it : and thus it is in adams fall , yet there remaineth some light still , which the apostle calleth ( rom. . ) truth ; he vouchsafeth that name to it , they detain the truth in unrighteousnesse . now this moon-light or glimmering of nature is of a three-fold use : . for societies and publike common-wealths , whereby they have made wholsome lawes . it 's wonderfull to consider , how excellent the heathens have been therein . thus chrysostome , speaking how the most excellent men need the counsell of others , instanceth in jethro's advice to moses , about choosing assistant officers : that great man moses ( saith he ) who was so potent in words and workes , who was the friend of god , which commanded the creatures , was helped incounsell by jethro his father-in-law , an obscure man , and a barbarian : although , to speak the truth , jethro , when he gave this counsell , was not so , but had the knowledge of the true god. . this light of nature serveth for the instigation and provocation of men to many good actions and duties towards god and man. hence still observe that phrase , they detain : reason and naturall light is bound , as a prisoner , by the chaines of lusts and sinfull affections ; which thing aristotle doth fully set forth in his incontinent person , whom he describeth to have a right opinion in the generall about that which is good ; yet , being too much affected to some particular pleasure or profit , by that meanes the better part is over-born : and therefore aristotle saith , the better part of the minde did provoke to better things . this agreeth with that of paul. and as they bound captivated practicall truths towards man , so they also imprisoned them about god. plato had the knowledge of one god , yet he dared not to communicate it to the vulgar : therefore ( saith he ) opificem universorum neque invenire facile , neque inventum in vulgus promulgare tutum : it was not easie to finde out the maker of the world , nor yet safe to make known to the people him , when he was found out . here for feare of the people , he detained this truth . and austin hath a most excellent chapter , cap. . lib. . de civit. to shew how seneca kept the truth in unrighteousnesse : he speaks of a book seneca wrote ( which now is lost ) against superstitions , where he doth most freely and boldly write against the practices of their worship ; but , saith austin , he had liberty in his writing , but not in his life , libertas affuit scribenti , non viventi . i will name some passages , because they are applicable to popish idolatry , as well as paganish . they dedicate their gods in most base materialls , and call them gods , which if taking life , they should meet us on a sudden , we should judge them monsters . they doe things so unseemly grave men , so unworthy free-men , so unlike wise sound men , that no man would doubt but that they were mad , if there were but few of them , whereas now the multitude of those that are thus mad is a patronage to them ; immortales deos in materia vilissima & immobili dedicant — numina vocant , quae si spiritu accepto subitò occurrerent , monstra haberentur — faciunt tam indecor a honestis , tam indigna liberis , tam dissimillima sanis , ut nemo fuerit dubitaturus furere eos , si cum paucioribus furerent ; nunc sanitatis patrocinium est insanientium turba . but seneca , when he had spoken thus , and much more , in the scorn of those gods , what doth he resolve upon that his wise man shall doe in those times ? let him not religiously account of them in his minde , but feigne them in his outward acts , in animi religione non habeat , sed in actibus fingat . and again , all which things a wise man will observe , as commanded by law , not as acceptable to god , quae omnia sapiens ser vabit tanquam legibus jussa , non diis grata . and further , istam ignobilem deorum turbam , quam longo aevo longa superstitio congessit , sic adorabimus , ut meminerimus cultum ejus ad morem magis pertinere quam rem . some say , seneca was coetaneous with paul , and that he had paul's epistles ; might he not ( if so ) see himself described in this phrase , detaining the truth in unrighteousnesse ? but how well doth austin in the same place stigmatize him ? he worshipped , what he reproved ; did , what he argued against ; adored , what he blamed ; colebat , quod reprehendebat ; agebat , quod arguebat ; quod culpabat , adorabat . and are there not many such popish spirits , that know their superstitions and falshoods , yet , because of long custome , will not leave them ? what else was the meaning of domitianus calderinus , when , speaking of going to masse , he said , eamus ad communem errorem ? and so it was a speech of a disputing sophister , sic dico quando sum in scholis , sed , penes nos sit , aliter sentio . you see then by this , that naturall truth would encline to better actions , but it is suppressed . when i say , naturall light enclineth the heart to good , it is to be understood by way of object meerly , shewing what is to be desired , not that we have any strength naturally to what is good . if you aske why truth , apprehended by naturall light , should be lesse efficacious to alter and new-mould the heart and life , then truth received by faith ( for in the scripture we reade of wonderfull conversions ; and the heathens have but one story that they much boast of , of one palemon ( if i mistake not ) who was a great drunkard , and came to deride socrates , while he was reading his discourse to his scholars , but was so changed by that lecture , that he left off his drunkennesse : this alteration was only in the skin , and not in the vitalls . what then should be the difference ? ) i answer , not that one truth in it selfe is stronger then another , but the difference is in medio , or instrumento , the instrument to receive this truth . when nature receives a truth , it 's but with a dimme eye , and a palsie-hand ; but when we receive it by faith , that is accompanyed with the power and might of the holy ghost . the influence of truth by naturall light , is like that of the moon , waterish and weak , never able to ripen any thing ; but that of faith is like the influence of the sun , that doth heat , and soon bring to maturity . . the last use of this naturall light is , to make men inexcusable ; for , seeing they did not glorifie god according to their knowledge , for that they are justly condemned . this indeed is not the onely use of the light of nature , as some say ; but it is a main one , rom. . . not that this is the end of god , in putting these principles into us , but it falleth out by our sinfulness . but how are they inexcusable , if they could not glorifie god by nature , as they ought ? some answer , the apostle speaks of excuse in regard of knowledge : but if you understand it of power , it is true ; for by our fault we are unable , and none went so farre as naturally they were able . and thus nature is considered in the first place . secondly , you may consider it as corrupted and obscured by sin : and in this sense it 's no help , but a desperate enemy to what is good : and the more reason this way , the more opposition to god : and thus it fell out with all the great naturall luminists ; they became vain in their reasonings , the more they enquired and searched , the further off they were from what is true , cor. . . the naturall man perceiveth not the things of god : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is not a man carnall and grosse in sinne , but a souly man , one that doth excolere animam , such as tully and aristotle . now the wiser these men were , the vainer they were . chrysostome's comparison doth well agree with them : as if ( saith he ) a king should give much money to a servant that by it he should make his family more glorious , and he goeth presently and spends all his money upon whores and bawds . thus did the heathens : as austin wrote to a man of great parts , ornari abs te diabolus quaerit , the divell seeks to be adorned by thee . hence egypt , that is accounted the mother of sciences , and moses in regard of knowledge is preferred before the egyptians ; yet that was the seat also of idolaters : and so the astronomers , who lifted up themselves above others in their knowledge of heavenly things , brought in those monsters into heaven , and attributed worship to them , and in their worship of their gods they added many feasts and sports . thus they invented an happinesse , which austin calleth scyllaeum bonum , consisting of humane and brutish parts . if you aske how this naturall light cometh to be thus obscured ; i answer , three waies : . by ill education . this is like the first concoction , or the first settling of the limbs of a man. secondly , by long custome and degeneration . hence some nations have by their publike lawes allowed grosse sins lawfull ; as some nations have allowed robberies , some incest , some that all old men should be thrown down headlong a steep hill . thirdly , by the just judgement of god ; therefore three times in rom. . god is said to give them up to sin . thirdly , you may speak of nature as informed , and enlightened by gods word : and while it 's thus , you need not cast this hagar out of doores . let scripture and the word of god lay the foundation stone , and then reason may build upon it . it is stella his comparison : it is with faith and reason , as with the mould that is at the root of the barren and fruitlesse tree ; take the mould out , and throw in muck or other compost , and then put the mould in , it will much help the tree , which hindered it before . thus , lay aside reason at first , and then receive truths by faith ; and afterwards improve them by reason , and it will excellently help . divine truths are not founded upon reason , but scripture ; yet reason may bear them up : as you see the elme or wall bear up the vine , but the elme or wall doth not bring forth the fruit ; onely the vine doth that . as long therefore as the light of nature is not the rule , but ruled and squared by gods word , so long it cannot deceive us . the second grand consideration is , that the light of nature is necessary in religious and morall things , though it be not sufficient . we speak of the light of nature in the first consideration , as it is the residue of the glorious image of god put into us ( for of the later , as it is informed by scripture , it is no question . ) now this is absolutely necessary two wayes : . as a passive qualification of the subject for faith ; for , there cannot be faith in a stone , or in a beast , no more then there can be sin in them : therefore reason , or the light of nature , makes man in a passive capacity fit for grace ; although he hath no active ability for it : and , when he is compared to a stone , it is not in the former sense , but the later . and secondly , it 's necessary by way of an instrument ; for we cannot beleeve , unlesse we understand whether knowledge be an act ingredient into the essence of faith , or whether it be prerequisite : all hold there must be an act of the understanding , one way or other , going to beleeve . hence knowledge is put for faith , and hebr. . by faith we understand . thus it is necessary as an instrument . . there is nothing true in divinity that doth crosse the truth of nature , as it 's the remnant of gods image . this indeed is hard to cleere in many points of divinity ; as in the doctrine of the trinity , and the doctrine of christs incarnation , which seemeth paradoxall to reason ; of whom tertullian , lib. . de carne christi , cap. . thus , natus est dei filius , non pudet , quia pudendum est ; mortuus est dei filius , prorsus credibile est , quia ineptum ; sepultus resurrexit , certum est , quia impossibile . yet , seeing the apostle calls the naturall knowledge of a man truth , and all truth is from god , which wayes soever it come , there can therefore be no contradiction between it . and hereupon our divines doe , when they have confuted the popish doctrine of transubstantiation by scripture , shew also , that for a body to be in two places , is against the principles of nature . they indeed call for faith in this point : and lapide , upon these words , hoc est corpus meum , saith , if christ should aske me at the day of judgement , why did you beleeve the bread to be the body of christ ? i will answer , this text , if i be deceived , these words have deceived me . but we must compare place with place , and scripture with scripture . as for the doctrine of the trinity , though it be above reason , and we cannot look into that mysterie , no more then an owle can into the sun beames , yet it is not against it . . the same object may be known by the light of nature , and by the light of faith. this may easily be understood : i may know there is a god by the light of nature ; and i may beleeve it , because the scripture saith so : so hebr. . i may by faith understand the word was made , and by arguments know it was made ; and this is called faith , by james . the divels beleeve , that is , they have an evident intuitive knowledge of god , and feel it by experience ; not that they have faith , for that is a supernaturall gift wrought by god , and hath accompanying it pia affectio , to him that speaketh , as the first truth . faith therefore , and the light of nature go to the knowledge of the same thing different waies : faith doth , because of the testimony and divine revelation of god ; the light of nature doth , because of arguments in the thing it self by discourse . and faith is not a dianoeticall or discursive act of the understanding , but it 's simple and apprehensive . . though reason and the light of nature be necessary , yet it is not a judge in matters of faith . the lutheran seemeth to depresse reason too much , and the socinian exalteth it too high : they make it not onely an instrument , but a judge ; and thereupon they reject the greatest mysteries of religion . i know some have endeavoured to shew , that religio est summa ratio ; and there are excellent men that have proved the truth of the christian religion by reason : and certainly , if we can by reason prove there is any religion at all , we may by the same reason prove that the christian religion is the true one . but who doth not see how uncertaine reason is in comparison of faith ? i doe not therefore like that assertion of one , who affects to be a great rationalist ( it is chillingworth ) that saith , we therefore receive the scriptures to be the word of god , because we have the greatest reason that this is the word of god. but we must not confound the instrument and the judge : holy truths , they are scripture truths , though hammered out by reason . as the smith that takes golden plate , and beates it into what shape he pleaseth , his hammer doth not make it gold , but only gold of such a shape : and thus also reason doth not make a truth divine , onely holds it forth , and declareth it in such a way . . it 's altogether insufficient to prescribe or set down any worship of god. hence god doth so often forbid us to walk after our own imaginations , and to doe that which we shall choose . the apostle calleth it will-worship , when a mans will is the meere cause of it . now , it 's true , men are more apt to admire this , as we see in the pharisees and papists ; they dote upon their traditions more then gods institutions . hence raymundus , a papist , speaking of the masse , it is ( saith he ) as full of mysteries , as the sea is full of drops of water , as the heaven hath angels , as the firmament hath starres , and the earth little crummes of sand . but what saith our saviour , luk. . that which is highly esteemed before men , is abomination before god ? that word , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is applyed to idols and false-worship . it 's true indeed , even in worship , light of nature and prudence is instrumentally required to order the institutions of god ; but as reason may not make a new article of faith , so neither a new part of worship . now natures insufficiency is described in these three reasonings : . to have all the worship of god sensible and pleasing to the eye . it was well called by parisiensis , a madnesse in some , who doubted not to say , the church was better ruled by the inventions of men then by the scriptures . the people of israel would have sensible gods , that they might see them : and certainly men doe as much delight in sensible pompous worship , as children do in gay babies ; therefore the prophet speaketh of their goodly images . but all this ariseth , because they are ignorant of spirituall worship , and cannot tell how to make spirituall advantage from god. it was well said by one , that a superstitious man is gods flutterer , and not his friend ; he is more officious then needs : and where a man is busie ubi non oportet , ( said tertullian ) he is negligent ubi oportet . such carnall sensible worshippers are well compared to those that , because they have no children , delight in birds and dogs ; so because they have no true graces of the spirit of god , they delight in these imitations . . to appoint mediatours between us and god. this was the great argument of the heathens ; they thought themselves unworthy , and therefore appointed others to mediate between them and god ; which argument of the heathens , some of the fathers wrote against . but , doe not the papists the same thing ? doe not they tell us , petitioners at the court doe not addresse themselves immediately to the prince , but get favourites to speak for them ; so must we to god ? and therefore salmeron doth give some reasons why it 's more piety and religion to pray to god and saints together , then to god alone . but is not this to forget christ our head , who is made neerer to us then angels are ? and , indeed , angels are reconciled to us by christ . if therefore we follow the light of nature thus , we shall fall into the ditch at last ; and superstition is never more dangerous , then when it 's coloured over with the specious colours of arguments . . to doe all by way of compensation , and satisfaction to god. upon this ground were all the sacrifices of the heathens . and is not all this with popery ? doe they not make all penall things compensative ? if they pray , that is meritorious ; if they fast , that is satisfactory . hence ariseth that seeming not to spare the flesh , col. . ult . and the apostle saith , it hath a shew of wisdome . but the more like any actions are to worship and wisdome , and are not so , the more loathsome they are : as in an ape , that which makes an ape so much deformed and loathsome , is because it is so like a man , and is not a man. use . of instruction . what hath made the idolatry of the church of rome so like paganish and ethnicall idolatry ? even because they followed their light , the light of nature and reason . look over all their paganish gods , and they have answerable saints . as the heathens had their ceres , and bacchus , and aesculapius ; insomuch that varro said , discendum fuisset quâ de causâ quisque deorum avocandus esset , nè à libero aqua , à lympho vinum optaretur : so here , they have their st. martin for the vineyard , christopher for suddaine death , nicholas for mariners , &c. and this was done at first , they say , to gain the heathens ; but the contrary fell out . let us then follow the light of nature no further then we ought ; let her be an hand-maid , not a mistresse . and then we must take heed of going against her where she doth truly direct . are there not many , not only unchristian , but also unnaturall actions ? let us remember that . lecture viii . rom . . . for the gentiles , &c. you have heard of two things considerable in the law of nature ; the knowledge or light of it , and the power or ability of it . we shall ( god willing ) at this time prosecute the doctrine of the former part , and the taske we have at this time is to answer some questions about the light of nature : for , as there are some who depresse it too much ; so there are others advance it too high . the philosophers called the christians credentes , by way of reproach , because they did not argue by reason , but receive upon trust : and there are some , who doe not indeed , with abilardus , make faith [ aestimatio ] a fancy , yet they make it ratio . let us see therefore what this light can doe , by way of answer to some questions onely ; not to answer all . the first question , whether a man can by the light of nature , and by the consideration of the creatures , come to know there is a god ? this is denyed by socinians and others . indeed bellarmine chargeth tenets to this effect upon calvin , but that which the protestant authours hold , is , that he may indeed have a knowledge that there is a god , but what this god is , whether he be one , and what his attributes are , they cannot so reach to . nihil deo notius , nihil ignotius : otherwise , they say , there is no naturall atheist in opinion , though many in affections , desiring there were no god. as tully argueth , let us take heed , how we bring this opinion into the world , that there is a god , lest hereby we bring a great slavery and feare upon our selves . are there not many polititians have too much of this poison in their hearts ? but of this more anon . onely that there is such a knowledge naturall , appeareth by some places : as first , rom. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that which may be knowne of god : for there are some things , that by nature could never be known , as the trinity and incarnation of christ . now this knowledge is by the book of the creatures . this whole universe may be called the lay-mens book ; rebus pro speculo utamur , we may see the power and wisdome of god in them . tully hath a good comparison : as a man that seeth and readeth a book , and observeth how every letter is put together to make an harmonious sense , must needs gather , that all those letters did not fall together by chance , but that there was a wise authour in the composing of them : so it 's in the world , which is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , none can think such a sweet compagination of all the parts of it should come together meerly accidentally . it 's said to be the speech of one antony , much spoken of in ecclesiasticall story , that he called the world a great volume , and the heaven , and water , and earth were the pages and leaves ; the starres and living creatures were the letters in those pages : and how glorious a letter is the sun , when eudoxus said , he was made onely to behold it ? the wayes and arguments by which naturalists have proved this , have not been by demonstrations à priori , for that is impossible ; but by the effects . as a man that cannot see the sun in it self , it is so dazeling , doth look upon it in a bason of water : thus we who cannot know god in himself , know him in the creatures . the second proof is from psal . . compared with rom. . where the psalmist makes the creatures so many tongues speaking a god , yea the hebrew word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eructat doth signifie the plenty and serenity , as also the fluid eloquence of the heavens ; and this is quoted by the apostle . and here two doubts are by the way to be removed : first , whether that of bellarmine and others be true , that the text is here corrupt : and , whether the psalmists meaning be not perverted . for the first ; in the hebrew it's there line , but the apostle , following the septuagint , renders it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as if they had read colam for cavam : but the answer is , that the septuagint regarded the sense , and , the psalmist having spoken before of the words or speech of heaven , they therefore interpret according to that sense : and by line , is meant the structure and exact composing of all these things , which declareth the admirable wisdome of the maker . as for the later , it is indeed generally taken , as if the apostle did speak this of the apostles preaching the gospel , which the psalmist did of the heavens : insomuch that the lutherans interpret all the former part of the psalme allegorically . others think the apostle alledgeth that place allusively , not by way of argument , as in that place of the epistle to the corinthians , where the apostle applyeth the speech about manna to matter of liberality . but jansenius and vasquez among the papists , and beza with others among the orthodox , think the apostle keepeth to the literall meaning of the psalmist ; as if this should be the apostles meaning , israel hath heard , for god made known himself even to the very heathens by the creatures , how much more to the jewes by the prophets ? which way soever you take it , it proveth that god hath a schoole of nature by his creatures , as well as a schoole of grace by his ministers . the last proofe is from john . he is the true light , which enlightneth every man coming into the world : for so we think [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] doth referre to man , not light ; though socinus and grotius plead much for it . some indeed understand this of the light of grace ; but it will be more universally and necessarily true of the light of reason , which is in infants radically , though not actually . i shall not here relate what unsound positions an antinomian authour hath in a manuscript sermon upon this place , because it is not pertinent . so then there is an implanted sense and feeling of a deity ; which made tertullian say , o anima naturaliter christiana ! and cyprian , summaest delicti nolle agnoscere , quem ignorare non potes . if you object , that the scripture speaks of the gentiles as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is to be understood of a distinct and obedient knowledge of him . and as for some atheists spoken of , that have expressedly professed it ; what they did was partly in derision of the many gods , as socrates , and another , who needing a fire , threw a statue of hercules into the fire , saying , age hercules , xiii . laborem subiturus adesto , obsonium nobis cocturus . besides , they did this with their tongue more then their heart , as appeareth by diagoras , who when he had made a famous oration against a deity , the people came applauding him , and said , he had almost perswaded them , but only they thought , that if any were god , he was , for his eloquence sake : and then this wretch , like herod , was content to be thought a god . we read act. . . of an altar to the unknown god ; but that is in this sense , among the heathens , it was uncertaine , which of their gods were appropriated to such or such offices : hence when a plague was once at athens , epimenides brought sheepe , some whereof were black , others white , to areopagus , and letting them goe from thence , whither they would , directed them to sacrifice ( where they should lye down ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to the proper god , and hence came their altars to an unknown god , because they knew not , which god to sacrifice to , for the removing of their calamities . the second question is , whether the mystery of the trinity , and of the incarnation of christ , can be found out as a truth by the light of nature ? and here , certainly , we must answer negatively ; for the apostle , cor. . speaking of the mysteries of the gospel , saith , it hath not entered into the heart of a man to conceive of them : which is to be understood , not onely of the blessed joy and peace of those truths , but also as they are truths ; so that all these things are of meere supernaturall revelation . hence we reade , that when , by reason of the arrians , there was an hot dispute about these mysteries , there was a voice heard from heaven , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the fall of the wise men . i doe acknowledge , that austin and others have sought the foot-steps or representations of the trinity in the creatures ; yea , nierembergius a jesuit , de origine sacrae scripturae , lib. . cap. . doth hold , that god did intend by the works of creation , to declare the mysteries of graces ; as by those artificiall things of the ark , tabernacle , and temple , he intended spirituall mysteries : but this is false . but then they did first know and beleeve this doctrine by scripture , and then afterwards goe to represent it . yet it must be confessed , that all these similies have scarce one foot , much lesse foure , to run on . the school-men speak of the three things in every creature , esse , posse , & operari . but especially that is taken up about the soule , when it understandeth or knoweth , and when it loveth : and the son of god is represented by that verbum mentis , and the holy ghost by amor. now here is a mistake , for christ is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , joh. . by john , imitating , the chaldee , not in respect of any such scholasticall sense , but because he doth reveale and make knowne the will of god to us : so the union of the humane nature and the divine in one person , though learned men give many examples , yet none come up to the full resemblance : and indeed , if you could give the like instance , it were not wonderfull or singular . we conclude then , that the scriptures are the onely ladder , whereby we climb up to these things , and our understandings are of such a little stature , that we must climb up into the tree of life ( the scriptures ) to see jesus . the third question concerning this naturall light is , whether it be sufficient for salvation ? for , there are some that hold , if any man , of whatsoever nation he be , worship god according to the light of nature , and so serve him , he may be saved . hence they have coined a distinction of a three-fold piety : judaica , christiana , and ethnica . therefore say they , what moses was to the jewes , and christ to the christians ; the same is philosophy , or the knowledge of god by nature , to heathens . but this opinion is derogatory to the lord christ ; for onely by faith in his name can we be saved , as the scripture speaketh . and , certainly , if the apostle argued that christ died in vain , if workes were joyned to him ; how much more if he be totally excluded ? it is true , it seemeth a very hard thing to mans reason , that the greater part of the world , being pagans and heathens , with all their infants , should be excluded from heaven . hence , because vedelius , a learned man , did make it an aggravation of gods grace to him , to chuse and call him , when so many thousand thousands of pagan-infants are damned : this speech , as being full of horridnesse , a scoffing remonstrant takes , and sets it forth odiously in the frontispice of his book . but , though our reason is offended , yet we must judge according to the way of the scripture ; which makes christ the onely way for salvation . if so be it could be proved , as zwinglius held , that christ did communicate himself to some heathens , then it were another matter . i will not bring all the places they stand upon , that which is mainely urged is act. . of cornelius ; his prayers were accepted , and , saith peter , now i perceive , &c. but this proceedeth from a meere mistake ; for cornelius had the implicite knowledge and faith of christ , and had received the doctrine of the messias , though he was ignorant of christ , that individuall person . and as for that worshipping of him in every nation , that is not to be understood of men abiding so , but whereas before it was limited to the jewes , now god would receive all that should come to him , of what nation soever . there is a two-fold unbelief : one negative , and for this no heathen is damned : he is not condemned because he doth not beleeve in christ , but for his originall and actuall sinnes . secondly , there is positive unbelief , which they only are guilty of , who live under the meanes of the gospel . the fourth question is , whether that be true of the papists , which hold , that the sacrifices the patriarchs offered to god , were by the meere light of nature : for so saith lessius , lex naturae & obstringit & suadet , &c. the law of nature both bindeth and dictateth all to offer sacrifices to god ; therefore they make it necessary that there should be a sacrifice now under the new testament offered unto god : and upon this ground lessius saith it is lawfull for the indians to offer up sacrifices unto god , according to their way and custome . and , making this doubt to himself , how shall they doe for a priest ? he answereth , that as a common-wealth may appoint a governour to rule over them , and to whom they will submit in all things ; so may it appoint a priest to officiate in all things for them . this is strange for a papist to say , who doteth so much upon succession , as if where that is not , there could be no ministery . now in this case he gives the people a power to make a priest . but , howsoever it may be , by the light of nature , that god is religiously to be worshipped ; yet it must be onely instituted worship that can please him : and thus much socrates an heathen said , that god must onely be worshipped in that way wherein he hath declared his will to be so . seeing therefore abel , and so others , offered in faith , and faith doth alwayes relate to some testimony and word , it is necessary to hold , that god did reveale to adam his will , to be worshipped by those externall sacrifices , and the oblations of them . it is true , almost all the heathens offered sacrifices unto their gods , but this they did , as having it at first by hear-say from the people of god ; and also satan is alwayes imitating of god in his institutions : and howsoever the destructive mutation or change of the thing ( which is alwayes necessary to a sacrifice ) doth argue , and is a signe of subjection and deepest humiliation ; yet how should nature prescribe , that the demonstration of our submission must be in such a kind or way ? the fifth question is , whether originall sin can be found out by the meere light of nature ? or , whether it is onely a meere matter of faith that we are thus polluted ? it is true , the learned mornay labours to prove by naturall reason our pollution , and sheweth how many of the ancient platonists doe agree in this , that the soule is now vassalled to sense and affections , and that her wings are cut whereby she should soare up into heaven . and so tully he saith , cum primùm nascimur , in omni continuò pravitate versamur ; much like that of the scripture , the imagination of the thoughts of a mans heart is onely evil , and that continually : but aristotle ( of whom one said wickedly and falsly , that he was the same in naturals , which christ was in supernaturals ) he makes a man to be obrasa tabula , without sin or vertue ; though indeed it doth incline ad meliora . tully affirmeth also , that there are semina innata virtutum in us , onely we overcome them presently : thus also seneca , erras , si tecum nasci vitia putas , supervenerunt , ingesta sunt , as i said before . here we see the wisest of the philosophers speaking against it . hence julian , the pelagian , heaped many sentences out of the chiefest philosophers against any such corruption of nature . but austine answered , it was not much matter what they said , seeing they were ignorant of these things . the truth is , by nature we may discover a great languishment and infirmity come upon us ; but the true nature of this , and how it came about , can only be known by scripture-light : therefore the apostle , rom. . saith , he had not known lust to be sin , had not the law said , thou shalt not last . the sixth question is , what is the meaning of that grand rule of nature , which our saviour also repeateth , that which you would not have other men doe to you , doe not you to them ? matth. . . it is reported of alexander severus , that he did much delight in this saying , which he had from the jewes or christians : and our saviour addeth this , that , this is the law , and the prophets ; so that it is a great thing even for christians to keep to this principle . men may pray , and exercise religious duties , and yet not doe this ; therefore the apostle addeth this to prayer , so that we may live as we pray , according to that good rule of the platonist , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . how would this subdue all those proud , envious , censorious , and inimicitious carriages to one another ? but now when we speake of doing that to another , which we would have done to our selves , it is to be understood of a right and well-regulated will , not corrupted or depraved . the seventh question is , whether the practice of the apostles , making all their goods common , was according to the precept of nature , and so binding all to such a practice ? for there have been , and still are those that hold this . but now , that communion of all things is not jure naturae , appeareth , in that theft is a sin against the morall law ; which could not be , if division of goods were not according to the law of nature . indeed , by nature all things were common , but then it was natures dictate to divide them ; as aristotle sheweth in many reasons against plato . what would have been in innocency , if adam had stood , whether a common right to all things , or a divided propriety , ( i speak of goods ) is hard to say . but as for the practice of the church of jerusalem , that was occasionall , and necessary , therefore not to be a ground for perpetuall command ; for other churches did it not , as appeareth by the almes that were gathered , nor was it laid necessarily upon all to sell what they had , as appeareth by paul's speech to ananias . use . if god be so angry with those that abuse naturall light , how much rather then with such , who also abuse gospel light ? these doe not put light under a bushell , but under a dung-hill . there are many that are solifugae , as bats and owles are . in one chapter god is said three times to deliver them up , because they did not glorifie god according to natures light ; how much more then according to the gospels light ? gravis est lux conscientiae , said seneca , but gravior est lux evangelii : the light of the ministery and word must needs be more troublesome to thy sinfull wayes . use . of examination , whether , even among christians , may not be found men no better then heathens . now such are , . ignorant people : how few have any knowledge of god ? . violent adherers to former idololatricall courses , taken up by fore-fathers . there is this difference between an idolater and a true beleever : the beleever is like those creatures , that you can make nothing lye on their backs , unlesse it be fastened by some scripture or reason ; but the heathen is like the camell , that had a back for burdens on purpose : so that any idolatry he would bear , though it were not tyed on by arguments . . such as are inordinately distracted about the things of this world , matth. . after these things doe the heathens seek . hast thou not much of an heathen in thee ? . such as rage at christ , and his reformation , psal . . why doe the heathens rage ? lecture ix . rom . . . for the gentiles doe by nature the things of the law . we have handled those things that concern the light and conduct of nature : now we shall speak of that which belongs to the ability and power of nature ; for herein are two extreme errours : one of the pelagian , papist , and arminian , with others , who lift up this power too high , the enemies of grace lurk under the praises of nature , sub laudibus naturae latent inimici gratiae ; and the other of the antinomians , who seem to deny all the preparatory works upon the heart of a man ; holding , that christ immediately communicateth himselfe to grosse sinners abiding so : and though they hold us passive at the first receiving of christ , which all orthodox do ; yet they expresse it in an unsound sense , comparing god unto a physician , that doth violently open the sick mans throat , and poure down his physick whether he will or no ; whereas god , though he doth convert fortiter , yet he doth it also suaviter . now for the full clearing of our inability to any good thing , we will lay down these propositions : . there is a naturall power of free-will left in us . free-will is not indeed a scripture name , but meerly ecclesiasticall , and hath been so abused , that calvin wished the very name of it were quite exploded : but if we speak of the quid sit , and not the quid possit , the being of it , and not the working of it , we must necessarily acknowledge it . the neerest expression to the word free-will , is that cor. . . having 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , power over his own will : but generally the scripture useth the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is as much as we intend . there is in all men naturally that power , whereby , through the help of reason , he chooseth this , and refuseth another-thing ; only this must not be extended to the things of grace . now to say what this free-will is , is very hard : perkins , following some schoole-men , maketh it a mixed power of the understanding and the will ; others a third reall distinct power from them : but it may probably be thought , that it is nothing but the will in electing or refusing such things ; so that we call it the will in those things it 's necessarily carried out to , as to will what is good , and not sin as sin : and then free-will , when it 's carried out to those things that are not necessarily connexed with it : even as in the understanding , while the understanding doth consider first principles , it 's called intellectus ; while conclusions that are gathered from them , it 's called ratio . therefore our adversaries do but calumniate us , when they say , we turn men into beasts ; for we hold the understanding going before , and the will after : and this is more then a meere spontaneous inclination in things naturall . therefore it is , that we do not bid the fire burn , or perswade an horse to goe , because there is not understanding or will in these things , as there is in a man. . this which is left in us is not able to performe naturall actions , without the generall help of god. that which we have acknowledged to be in a man naturally , must still be limited to his proper sphere , to naturall , and civill actions , or some externally religious duties : but even then we must acknowledge a generall help , or assistance of god , without which we could not doe any naturall thing ; so that place in the acts , in him we live , and move , and have our being : by which we prove , that god doth not onely give us the principles of being and moving , but we move in him , i. e. by him . therefore hierome did well reprove the pelagians , that thought , without the generall aide of god , a man might move his finger , or write , and speak . there have beem some who have thought , that all which god doth for us in our naturall actions , is onely to give the principles and power o● actions ; and then afterwards we need no further aide , then mee● preservation of our being , no concourse or aide of god helping us in the action : thus durand of old , and one dodo of late , who hath written a book onely to that purpose : but the place abovesaid doth evidently convince it ; and we see , that god did hinder the fire from burning the three worthies , though he did preserve the fire at the same time in the power of burning , which could not be otherwise , then by denying his actuall aide to the working of the fire : for , to say that the reason was because of gods doing something upon their bodies , were to make the miracle there , where the scripture doth not lay it . if you aske then , why this may not be called a speciall help of god , as well as that whereby we are inabled to beleeve , or repent ; i answer , there is a great deal of difference : . because this generall aide is necessary to wicked actions , in regard of their positive nature , as well as to good . . god doth this in the way of his providence , as a creatour , the other he doth in the way of predestination , as a father in christ . . the other aide may be said to be due , as our divines speak of originall righteousnesse , upon a supposition that a man is made a creature to do such actions ; yet not properly a debt , but that for our sin we are deprived of it : but this speciall help of grace cannot be called so . . it is wholly unable to work any good thing . all this while we have considered the power of man but as in the lower region ; and if you doe consider him , in reference to good things , so he hath no power , or will , or free-will at all ; but , as austin said before luther , it 's servum arbitrium , a servant , and inslaved will to sin onely . indeed we have not lost our understandings or our wills , but to know or will that which is good , is wholly lost : though we have not lost the will , yet we have the rectitude in that will , whereby we should encline to good . and this may be proved from many arguments : . from all those places of scripture which declare our estate to be full of sin and corruption , and altogether wicked . now , doe men gather grapes of thornes , or figs of thistles ? hence the father compareth us well to the ship in a tempest , that is destitute of a pilot : we are dashed continually upon rocks , though this speak of the negative onely , not the positive corruption . . all those places , which speak of grace , and conversion , and regeneration , as the work of god. as for those places , where we are said to repent , and to turn unto god , in time we shall cleare ; only these texts prove , that all the good things we do , they are the works of the lord : not that god beleeveth or repenteth in us , but he worketh those actions in us efficiently , which we doe formally and vitally . . all those places whereby glory and praise is to be given unto god onely , and not unto our selves . what hast thou thou hast not received ? we are to glory in nothing , because no good thing is ours . therefore , we bring forth good things , as sarahs dead womb brought forth a child ; it was not a child of nature , but a child of the meere promise : thus are all our graces . and , indeed , if we could either in whole or part work our own conversion , we might thank god , and our wils : but how absurd would this be , lord , i thank thee for the turning of my heart , when i was willing to turn it ? . it cannot prepare or dispose it self for the grace of justification or sanctification . as it cannot immediately work any good thing , so neither can a naturall man dispose , or prepare himself for the great works of grace . there is no truth in such an assertion . let man do what he can naturally , god will meet him graciously : and the reasons are plain : . because no naturall thing is in it self an order or a disposition to a supernaturall thing ; for they differ in their whole kind and nature . hence it is , that we never read of any heathens , that , by the improvement of a naturall light , had supernaturall vouchsafed unto them . . those places that speak of our totall corruption , intensively onely evil , and extensively , all the thoughts of a man are evil , and protensively , continually , do sufficiently declare , that we cannot prepare our selves to meet god. . if we could prepare , or dispose our selves to grace , then the greatest cause of glory would still be in a mans own self for , why doth peter repent , and not judas ? because , may some say , he disposed and set himself to repent , and not judas . but still here is the question , why did peter set himself to repent and not judas ? here it must be ultimately resolved either into the grace of god , or the will of man. . all those similitudes that the scripture useth , do illustrate this thing . we are not said to be blind , or lame , but dead in sin : now did lazarus prepare himself to rise ? so it 's called regeneration . can a man dispose himself to have life ? i know these comparisons must not be extended too far ; yet , the scripture using such expressions to declare our utter inability , we may well presse those breasts of the scripture so farre , and bring out no blood . the parched earth doth not dispose it self for the rain , nor doth the cold ice of it self thaw , which is the fathers similie . yet fifthly , we may hold truly some antecedaneous works upon the heart , before those graces be bestowed on us . this take to antidote against the antinomian , who speaks constantly of the soul taking christ , even while it 's a grievous polluted soul ; as if there were no polishing of this crooked timber and rough stone , but even taken out of the quarry , and so immediately put into the building . those in the acts that were pricked in heart , were yet bid to repent ; and so they cried out , what shall we doe to be saved ? the sick feeleth his burden before he cometh for ease , so that a grosse sinner is not immediately put out of his vile wayes into christ ; onely these limitations you must take : . that all these things , sight of sin , trembling for fear , confused desires , they are the works of gods grace moving us , they do not come from our own naturall strength . . these are not absolutely necessary in every one . we know how matthew and lydia did follow christ ; and god saith , he was found of some that did not seek him . paul was in a most cursed indisposition when the lord called him : but generally god takes this way . . these are not necessary antecedents , so as the grace of conversion doth necessarily follow . wee reade of cain and judas troubled for sin . these are a wildernesse that a man may dye in , and never goe into canaan : there may be throes and pangs , when yet no childe , but wind is to be delivered . hence a people that have been civill , have not been called : but publicans and harlots . the object of election is for the most part few for number , infirme for power , and sinfull for conversation : though in the godly these are needles that will draw in the threed , yet this state must not be called a third middle estate between regenerate and unregenerate , as some feigne . lastly , none of these workings can be called so properly preparations , or dispositions in themselves , but onely intentionally in god. our saviour looked on a young man , and loved him , and said , hee was not farre from the kingdome of heaven : that is , the life hee lived was not farre from the kingdome of heaven ; yet this was no preparation in it selfe to it : nay , he may be further off , as two high hills may be neer in the tops to one another , but the bottomes some miles asunder . and this is so great a matter , that great sins are made by god a preparation to some mans conversion , which yet of themselves they could never be : as a childe , whose coat is a little dirty , hath it not presently washed ; but when he falls wholly all over in the dirt , this may be the cause of the washing of it : so that they are preparations only so far as god intendeth them . . all determination to one doth not take away that naturall liberty . this will further cleere the truth : for it may be thought strange , that there should be this freedome of will in a man , and yet thus determined to one sin onely ; whereas it 's plaine , a determination to one kind of acts , good or evill , doth not take away liberty . god can onely will that which is good , and so the angels and saints confirmed in happinesse ; yet they doe this freely : and so the divels will that which is wicked onely . it 's true , some exclaime at such passages , but that is onely because they are prepossessed with a false opinion about liberty ; for a determination to one may arise from perfection , as well as naturall imperfection . it is from gods absolute perfection that hee is determined to will onely good ; and when adam did will to sin against god , it did not arise from the liberty of his will , but his mutability . there is a naturall necessity , such which determineth a thing to one ; and that is imperfection : but a necessity of immutability in that which is good , is a glorious perfection . the learned speak of a three-fold liberty : . from misery , such as the saints shall have in heaven . . from sin , to which is opposed that freedome to righteousnesse , of which our saviour speaketh , then are yee free indeed , when the son hath made you free ; and of which austine , tunc est liberum , quando liberatum . . from naturall necessity , and thus also man , though hee be necessarily carried on to sin , yet it is not by a naturall necessity , as beasts are , but there is reason and will in him when he doth thus transgresse : onely you must take notice , that this determination of our will onely to sin , is the losse of that perfection we had in adam , and doth not arise from the primaeve constitution of the will , but by adams fall , and so is meerly accidentall to it . . nor doth it take away that willingnesse or delight in sin , which we are inevitably carried out unto : for now , if man were carried out to sin against his will and his delight , then there might be some shew of pleading for him ; but it is not so , he sinneth as willingly , and as electively in respect of his corrupt heart , as if there were no necessity brought upon him . therefore that is good of bernards , the necessity takes not away the willingnesse of it , nor the willingnesse of it the necessity . it 's both an hand-maid , and so free , and , which is to be wondered , eoque magis ancilla , quò magis libera . hence therefore no wicked or ungodly man can have any excuse for himselfe , to say the fates or necessity drove him : for , besides that by his fault he hath cast himselfe into this necessity , and so is , as if a man in debt , who was once able to pay , but by his wilfull prodigall courses hath spent all , should think to be excused because he cannot pay . besides ( i say , this just and full answer ) this also is to be said , that no man sins constrainedly , but every one is carried on with that delight to sin , as if he were independent upon any providence , or predefinitive permissive decrees of god , or any such corrupt necessity within him . hereby he pitieth not himselfe , hee seeth not his undone estate , & nihil miserius misero non miserante scipsum . hence it is , that a mans whole damnation is to be ascribed to himselfe . wee ourselves have destroyed our owne soules , wee cannot cast it upon gods decrees . and this is necessarily to be urged , because of that naturall corruption in us with adam , to cast our sinne upon god. . a man may acknowledge grace and give much to it , and yet not give the totall efficacy unto it . this is a maine particular to consider ; for pelagius , and arminius , and papists , all doe acknowledge grace . pelagius , it 's noted of him , that hee did foure times incrustate his opinion , and held grace in every one of them : hee did gratiae vocabulo uti ad frangendum invidiam , as you heard before ; yea , by this meanes hee deceived all the easterne churches , and they acquitted him when he said thus : if any man deny grace to be necessary to every good act wee doe , let him be an anathema . so papists and arminians , they all acknowledge grace , but not grace enough ; gratia non est gratia , nisi sit omni modo gratuita : as for example ; first , they acknowledge grace to be onely as an universall help , which must be made effectuall by the particular will of man : so that grace is efficacious with them , not by any inward vertue of it self antecedaneous to , and independent upon the will , but eventually only , because the will doth yeeld ; and therefore bellarmine compareth it to sol & homo generant hominem : one as the universall cause , the other as the particular cause . thus grace and free-will produce a good action ; grace as the generall cause , and free-will as the particular : but how derogatory is this to grace ? how can our actions be said to be the fruit of grace ? for , if i should aske , who is the father of such a man ? it would be very hard to say , the sun in the firmament : so it would be as absurd to say , grace regenerated and converted this man. again , they make grace a partiall cause only ; so that it stirreth up our naturall strength to work this or that good thing : and therefore we are synergists or co-workers with god in the work of conversion ; but this supposeth us not dead in sinne . . men may naturally performe the outward act of a commandement . now though we be thus corrupt , yet for all that , men by nature may doe that outward act which is commanded by god , or abstaine from the matter prohibited . thus alexander abstained from the virgins hee took captives , which is so much related in stories , and many other famous instances of the heathens , though some indeed think they had a speciall helpe and aide from god to doe that : but here the apostle in the text is cleare , they doe by nature the things of the law . some doe not like that dictinction , they may doe the substance of the work , but not the manner of a good worke , because they think the substance doth comprehend that indeed which makes a good work ; howsoever , they agree that the externall act may be done . thus ahab hee externally humbled himselfe , and some think that uriah , which esay calls , the faithfull witnesse he took to him , to be the same with him that brought in the altar of damascus : so that , though he was an idolater , and an ungodly man , yet hee was reputed a faithfull man in his word . and certainly this is something , to make many men inexcusable . they may forbeare those acts of grosse impiety which they doe , supposing they have not customarily , or by the just judgement of god throwne themselves into the power of such sins ; not that this will helpe to save them , onely their punishment will be lesse . thus fabricius and camillus ( saith austin ) will be lesse punished then verres or cataline , not because these were holy , but because they were lesse wicked , & minora vitia virtutes vocamus . i know it 's a question , whether a godly man can doe more good then he doth , or lesse evill then he doth : but this may be handled in the controversall part ; we speak now of a wicked man , who can doe no good at all , unlesse in the externall act . yet . all that they doe is a sin before god. this is an antidote to the former : whatsoever they have done , though for the matter glorious , yet they were but glorious sins ; for , . they could not come from faith , or one reconciled with god : and the person must be first accepted before the action , heb. . without faith it 's impossible to please god. . it could not come from a regenerate nature : and therefore the tree not being good , the fruit was also bad . it 's not in divinity , as in morall philosophy , where justa , & justè agendo fimus justi ; but we have the esse or being first , and then the operari . it 's a question worth the disputing , whether the grace of god works the act of beleeving and other graces in us first , and then by them we receive the habits . the papists , and arminians , and some others go that way ; but it is not consonant to scripture , as may be shewed hereafter . . they could not be good , if you regard the end : they could do nothing for the glory of god. this made theophylact say , wee could not instance in one good heatken ; for , that which they did was for their vain-glory , & carnalis cupiditas non aliâ fauatur , one divell did but cast out another : and if they did intend some particular good end , as to relieve the miserable , to help the commonwealth , this was not enough ; for the ultimate and chief end ought to be intended by them . lastly , there is no promise of god made to any thing a man doth , that hath not faith . ahab indeed , and nebuchadnezzar had temporall rewards , but in what sense , i shall shew in answering the objections . use . to bewaile the wofull condition of man by nature . how is every bird in the aire , and beast in the field in a better naturall condition then they are ? this is worse then to be blind , to be lame ; for our soules are all blind , lame , deafe , yea and dead in sin . what a sad thing is it , to be all the day and yeare long damning our soules ? if we eat or drink , we sin ; if we buy or sell , we sin . and consider , that sin is the greatest evill , and that onely which god loaths and abhorres . let all thou doest therefore terrifie thee , and make thee to tremble ; let this make thee cry for grace , as the poore , blind , and lame did , that they might be healed : and , because you doe not feele this , or are unwilling to be heard , therefore you are the more miserable ; nolunt phrenetici ligari , & lethargici excitari . lecture x. rom . . . for if the gentiles doe by nature the things of the law , &c. we have already positively and plainly ( so farre as wee conceived necessary ) declared and proved the truth about the power and ability of a man by nature to doe that which is good : now it remaineth we should antidote against those objections that doe militate against this truth , and that indeed with much shew of reason ; for never have men been more witty , then when they have undertaken to be the patrons of nature . but austin well called it vitreum acumen : the more it glitters , the easier it 's broken . the heathens are very obstinate in propugning mans power . onely sluggards need gods help , ignavis opus est auxilio divino , saith seneca the tragedian ; and so the other seneca : it is the gist of the gods that we live , but our own doing that we live well , deorum quidem munus esse quòd vivimus , nostrum verò quòd bene sancteque vivimus : and that of tully is very arrogant , lib. . de nat . deorum , quia sibi quisque virtutem acquirit , neminem è sapientibus unquam de ea gratias deo egisse : and ( saith he ) wee are praised for our vertue ; which could not be , if it were the gift of god , and not of our selves . but how different are the holy men in the scripture , from these wise men of the world , who when they have been enabled by god to doe any good thing , have not taken the glory of it to themselves ? and , as joab did about rabbah , when he had taken it , sent to david to come and take all the glory ; so doe they say , not i , but the grace of god , corinth . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is to be understood , which was present with mee , not which did work with mee . finst therefore they say , if so be we are not able to doe any thing towards our salvation , this is to turn men into stockes , and stones , or beasts , and so no difference between them and us . but we say , although those similitudes the scripture holds forth doe prove our inability for that which is good , yet they must not be made alike in all things . it 's true , to convert men , is to make children unto abraham out of stones ; yet we must not think that is therefore an universall likenesse between men and stones : for first , consider this vast dissimilitude ; in stones and beasts there is no passive capacity of grace , but in man there is . we say , there is a power for grace in a mans nature ; and the papists say , there is a power : only they say it 's an active power , though remote ; we say , only a passive . there is a power to be converted to god , which is not in stones or beasts : they say , there is a power to convert or turn to god ; here is a great difference . besides , wee may consider these degrees in the creatures : . there is an inclination to such an act , as in the fire to burne . . a spontaneous inclination to some acts accompanied with sense , and sensible apprehensions , as in beasts . . a willing inclination accompanied with reason or judgement , and this is in man : now , because man is thus affected , therefore god in converting , though he doth it by a potent work , yet by arguments , which we never use to horses , or brute beasts : and although man hath lost that rectitude in his will and mind , yet hee hath not lost the faculties themselves ; therefore though he be theologically dead , yet hee is ethically alive , being to be wrought upon by arguments . hence is that saying , to will is of nature , to will well of grace , to will ill of corrupt nature . hence wee may grant those objections , that if a man had not this free-will ( if you doe not extend it to good things ) there could be no conversion or obedience ; for grace doth not destroy , but perfect nature . . this putteth men upon speaking and preaching contradictions : for so some have said , that the calvinists ; though they be calvinists in their doctrines , yet they are arminians in their uses . and they say , how incongruous is it , to tell us we can doe nothing of our selves , and then to make this use , therefore let us seek out for the grace of christ ? but to answer , . this contradiction may be cast as well upon christ and paul : take christ for an instance , john . in that sermon , he bade the jewes labour for that meat that perisheth not , and yet at the same time said , none can come unto mee , except my father draw him . might not the arminian say , how can these two things stand together ? so john . our saviour telleth them , without him they can doe nothing , and yet at the same time he exhorteth them , to abide in him , and keep his commandements : so paul ; take two instances from him , rom. cap. . & cap. . the apostle there sheweth , god will have mercy on whom he will have mercy , and that it is not of him that runneth or willeth , but of god that calleth ; yet he bids them that stand take heed lest they fall : and , be not high-minded , but feare . so phil. . , . work out your salvation with feare and trembling ; for it 's god that worketh in you both to will and to doe . this reason , in their sense , would quite overthrow the former . nay ( say they ) it being attributed thus to god , and to man , it seemeth both doe it how this may be answered , wee shall see anon . but to make u● speak contradictions , because we presse a duty , and yet acknowledge gods grace or gift to doe it , is to make a perpetuall discord between precepts and promises : for the same things which god commands us to doe , doth hee not also promise to doe for us , as , to circumcise our hearts , and , to walk in his commandements how much better is that of austius , o man , in gods precepts acknowledge what thou oughtest to doe , in his promises acknowledge that thou canst not doe it ? but . we may returne upon them , that their sermons and prayers are contradictions ; they say , they can doe it , and then they pray god they may doe it : they say , the will may receive the grace of god , and may obey god calling ; and then they pray , god would make them obey his calling ; as much as to say , o lord , make me to obey if i will. . this evacuateth the whole nature of gods precepts and commands : for , say they , is not this to make god mock us , as if wee should bid the blind man see ; or tell a dwarfe , if hee would touch the heavens with his singer , he should have so much mony ? now , to this many things are to be said : as , first , if these things were absolutely and simply impossible , that which they say would be true ; but a thing may be said to be impossible three waies : . simply and universally , even to the power of god : and so all those things are , that imply a contradiction ; and this impossibility ariseth from the nature of the thing , not from any defect in god : yea , wee may say with one , potentissimè hoc deus non potest . . there may be a thing impossible in its kind ; as for adam to reach the heavens , for a man to work above naturall causes . . that which is possible in it self to such a subject , but becomes impossible accidentally through a mans fault . now for a man to be commanded that , which through his own fault he becometh unable to do , is no illusion or cruelty . if a creditor require his debt of a bankrupt , who hath prodigally spent all , and made himself unable to pay , what unrighteousnesse is this ? therefore they are but odious instances , of touching the skies , of bidding blind men to see ; for this rule observe , whatsoever is so impossible , that it is beyond a duty required , or power ever given , extra officium debitum , and potentiam unquam datam , that indeed were absurd to presse upon men . again consider , that the commands of god doe imply if any power , then more then they will acknowledge ; for they suppose a man can doe all of himself without the grace of god , and therefore indeed the old pelagian , and the new socinian speak more consonantly then these , that divide it between grace , and the power of man. lastly , the commands of god are for many other ends , as to convince , and humble , though they be not a measure or rule of our power . that place , deut. . . is much urged by the adversary , where moses seemeth to declare the easinesse of that command : and certainly it hath a very great shew ; for , as for that answer , that moses speaketh of the easinesse of knowing , and not fulfilling , calvin doth not stand upon it ; and indeed of our selves we are not able to know the law of god. the answer then to this may be taken out of rom. . . that howsoever moses speaks of the law , yet paul interprets it of the gospel . what then ? doth paul pervert the scope of moses ? some do almost say so ; but the truth is , the law ( as is to be shewed against the generall mistake ) if it was not in it self a covenant of grace , yet it was given evangelically , and to evangelicall purposes , which made the apostle alledge that place : and therefore the antinomian doth wholly mistake , in setting up the law as some horrid gorgon , or medusa's head , as is to be shewed . . how can god upbraid or reprove men for their transgressions , if they could doe no other wayes ? this also seemeth very strange , if men can do no otherwise . is not this as ridiculous to threaten them , as that of xerxes , who menaced the sea ? i answer , no , because still whatsoever man offends in , it 's properly his fault , and truly his sin ; for whatsoever he sinneth in , he doth it voluntarily , and with much delight ; and is therefore the freer in sin , by how much the more he delights in it . and this austin would diligently inculcate , that so no man might think to cast his faults upon god. there is no man forced to sinne , but he doth it with all his inclination and delight . how farre voluntarinesse is requisite to the nature of a sinne , at least actuall , though not to originall , is not now to be determined ; for we all acknowledge , that this necessity of sinning in every man , doth not hinder the delight and willingnesse he hath in it at the same time . nor should this be thought so absurd , for even aristotle saith , * that though men at first may choose , whether they will be wicked or no , yet if once habituated , they cannot but be evil : and yet for all that , this doth not excuse , but aggravate . if an ethiopian can change his skin , saith the prophet , then may you doe good , who have accustomed your selves to doe evil . the oake , while it was a little plant , might be pulled up ; but when it 's grown into its full breadth and height , none can move it . now if it be thus of an habit , how much more of originall sin , which is the depravation of the nature ? and howsoever austin was shye of calling it naturale malum , for fear of the manichees ; yet sometimes he would doe it . well therefore doth the scripture use those sharp reproofes and upbraidings , because there is no man a sinner or a damner of himself , but it is by his own fault : and withall , these serve to be a goad and a sharp thorn in the sinners side , whereby he is made restlesse in his sin . . to what purpose are exhortations and admonitions ? though the other answers might serve for this , yet something may be specially answered here , which is , that though god work all our good in us , and for us , yet it is not upon us as stocks or stones ; but he dealeth sutably to our natures , with arguments and reasons : and if you say , to what purpose ? is it any more then if the sun should shine , or a candle be held out to a blind man ? yes , because these exhortations and the word of god read or preached , are that instrument , by which god will work these things . therefore you are not to look upon preaching , as a meere exhortation , but as a sanctified medium , or instrument , by which god worketh that he exhorteth unto . sometimes indeed we read , that god hath sent his prophets to exhort those , whom yet he knew would not hearken : thus he sent moses to bid pharaoh let the people of israel go , and thus the prophets did preach , when they could not beleeve , because of the deafnesse and blindnesse upon them . but unto the godly these are operative meanes , and practicall , even as when god said , let there be light , and there was light ; or , when christ said , lazarus , come forth of the grave . and this by the way should keep you from despising the most plain ministery or preaching that is ; for , a sermon doth not work upon your hearts , as it is thus elegant , thus admirable , but as it is an instrument of god , appointed to such an end : even as austin said , the conduits of water , though one might be in the shape of an angel , another of a beast , yet the water doth refresh as it is water , not as it comes from such a conduit ; or the seed that is thrown into the ground fructifieth , even that which comes from a plain hand , as well as that which may have golden rings or jewels upon it : not but that the minister is to improve his gifts , qui dedit petrum piscatorem , dedit cyprianum rhetorem , but onely to shew whence the power of god is . bonorum ingeniorum insignis est indoles , in verbis verum amare , non verba . quid obest clavis lignea , quando nihil aliud quaerimus , nisi patere clausum ? . the scripture makes conversion and repentance to be our acts , as well as the effects of gods grace . and this cannot be denyed but that we are the subject , who being acti ▪ agimus , enabled by grace , do work ; for , grace cannot be but in an intelligent subject : as before the manna fell upon the ground , there fell a dew , which ( say interpreters ) was preparatory to constringe and bind the earth , that it might receive the manna ; so doth reason and liberty qualifie the subject , that it is passively capable of grace : but when enabled by grace , it is made active also . these be places indeed have stuck much upon some , which hath made them demand , why , if those promises of god converting us do prove conversion to be his act , should not other places also , which bid us turn unto the lord , prove that it is our act ? the answer is easie : none deny , but that to beleeve , and to turn unto god , are our acts ; we cannot beleeve without the minde and will. that of austin is strong and good , if , because it 's said , not of him that willeth and runneth , but of him that sheweth mercy , man is made a partiall cause with god , then we may as well say , not in him that sheweth mercy , but in him that runneth and willeth . but the question is , whether we can doe this of our selves , with grace ? or , whether grace onely enable us to doe it ? that distinction of bernards is very cleere : the heart of a man is the subjectum in quo , but not à quo ; the subject in which , not from which this grace proceedeth : therefore you are not to conceive , when grace doth enable the mind and will to turn unto god , as if those motions of grace had such an impression upon the heart , as when the seal imprints a stamp upon the wax , or when wine is poured into the vessell , where the subject recipient doth not move , or stirre at all : nor is it as when balaam's asse spake , or as when a stone is thrown into a place , nor as an enthusiasticall or arreptitious motion , as those that spake oracles , and understood not ; nor as those that are possessed of satan , which did many things , wherein the minde and will had no action at all : but the spirit of god inclineth the will and affections to their proper object . nor is the antinomians similitude sound , that ( as you heard ) makes god converting of a man , to be as when a physician poureth down his potion into the sick-mans throat , whether he will or no : for it is most true , that the will , in the illicite and immediate acts of it , cannot be forced by any power whatsoever : it's impossible that a man should beleeve unwillingly ; for to beleeve , requireth an act of the will. the school-men dispute , whether fear , or ignorance , or lust do not compell the will ; and they do rightly conclude , that it cannot : therefore , though a mans conversion be resisted by the corrupt heart & will of a man , yet when it is overcome by the grace of god , it turneth willingly unto him . therefore this argument , though it seem strange , yet we may say of it as he in another case , hoc argumentum non venit à dea suada . . then men may sit still and never stirre , onely expecting when grace shall come ; for , if we have no power , why are men exhorted to come to christ , and reade the word ? and indeed , this hath so wrought upon some , that they have not used any meanes at all , but expect gods providence to be a supplyer of all , as brentius ( if i mistake not ) relateth of an anabaptist woman , who invited many to supper , and never provided any thing , expecting god would do it . now this question is built upon a falshood , as if a mans working were wholly excluded ; whereas you are to know , that there are two kinds of holy things : . there are holy things that are internally and essentially so , and these we cannot doe without god , john . without me ye can do nothing . austin observes the emphasis ; he doth not say , no hard thing , but nothing : and he doth not say perficere , perfect ; but facere , you cannot doe it any way . . there are holy actions externally so , as to come to heare the word preached , to reade and meditate upon the word : experience teacheth , that men have a naturall power to this ; witnesse those many comments and learned expositions , that men without any grace have made upon the scripture . now it 's true , to doe any of these holily is gods act , the naturall man perceiveth not the things of god : and , god opened lydia's heart . but yet god converteth in the use of these meanes . he will not ordinarily change the heart of any , that doth not wait at the gates of wisdome . therefore god doth not work upon the heart , as the artificer useth his instrument , but he commands to reade and hear ; and this is the organ , or the meanes by which the spirit of god will change his heart . now indeed , when a man readeth or heareth any naturall or philosophicall truth , he is able by these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , strength left in nature , to comprehend them , but he cannot in the same manner bring forth any thoughts or affections of heart sutable unto those spirituall mysteries laid open before him . but now the patrons of nature speak otherwise ; they say it is , as if a man , almost spent by a disease , should receive physick , and so that physick doth repaire and increase strength , not infuse strength : or , as a bird tyed by a string , that hath a power to flye , onely is outwardly hindered , so that they suppose a latent power in nature to be excited and stirred up by grace : we say , the power must be first infused . . if they thus necessarily sin , then they were not bound to pray , nor to come to hear the word of god preached ; for then also they sin and no man is bound to sin . now to this the answer is clear , that though a wicked man cannot but sinne in praying and hearing , yet he is bound to these things : and the reason is , because , that he sinneth in them , it is meerly accidentall , but the duty is a duty essentially in it self ; and a man must not omit that which is per se requisite , for that which is accidentally forbidden : so that his resolution should not be , not to pray , or to heare , but deponere peccatum , to lay down his sin , which corrupteth , leaveneth , and maketh sowre all he doth . besides , there is lesse judgement to him that prayeth , then to him that prayeth not , although in some particular consideration his aggravation may be the greater . . the scripture doth say , to him that hath , shall be given , and , when god distributed his talents , it was to every one as he was able , matth. . if we answer to this , that theologia symbolica non est argumentativa , that is denyed , and is now a-late questioned ; although austins and others comparisons about parables must needs be granted : which are , as in a picture there are lineaments and essentials of it , but , besides these , the shadowes and colours , which are for meer ornament ; so in parables : or , as others , as in the musicall instrument , onely the strings touched make the noise or tune , yet they could not do so , unlesse fastened unto the wood ; so onely the scope of the parable is that which is argumentative , though this principall have many accessaries joyned to it : and thus we may say of that passage , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that it 's taken from the custome of men , and goeth to make up the parable . but let us consider it otherwise , and theophylact referreth it dangerously to our preparations and dispositions . in the vessell ( saith he ) which i am to bring to god , he poureth in his gift : if i bring a little vessell , he giveth a little gift ; if a great vessell , he giveth a great gift : but , seeing that under the name of these talents , be understood not onely dona sanctificantia , but ministrantia , and the apostle saith expresly , that the spirit of god giveth these diversity of gifts , as he pleaseth , this wholly overthroweth that exposition . therefore the papists , barradius and maldonat , do confesse it makes onely ad ornatum , non ad rem per parabolam significatam ; and that it 's taken from the custome of men , who use indeed to look to the gifts of men , their prudence and fidelity : but we know by experience , god did not so . but if we make an argument of it , then this disposition or capacity must be either supernaturall , and then it 's the gift of god ; or if of naturall capacity , as sometimes to him that hath excellent parts , a prompt wit , an happy memory , god giveth the habit of divinity ( for there is such a thing that is distinct from the habit of faith ) and a gift of interpreting scripture , although that naturall dexterity be a gift of god also , but in another kind ; and then god doth not tye or bind himself to this way : and therefore , if we should say , as some do , god gave the spirit of government to moses , because by nature he was most prudent and meek ; yet it 's not universally so , because god gave to saul a spirit of government from his own meere good will , without any respect to saul . and how many men of parts have been so farre from being blest , because of these naturall endowments , that they have turned their wedge of gold into an idoll , to worship it ? use . to extoll the work of grace for the initiall , progressive , and consummative work of conversion : for by all that hath been said , you have seen the weaknesse of nature , and the power of grace ; the strength of our disease , and the necessity of a physician . how uncomfortable will it be when thou dyest , to commit thy soule to that grace , which thou hast disputed against ? and be not content with giving something to it , unless thou give all to it ; grace that justifieth , grace that sanctifieth , grace that saveth . use . not to abuse the doctrine of grace to idlenesse or negligence . you see how both these promises and precepts , grace and duties , may be reconciled . and as not to negligence , so not to curious disputes : doe not so trouble your selves about the doctrine of grace , that you feel not the power of grace in your hearts ; and doe not so farre dispute about your naturall corruption , and how deep you are in it , as not to labour to get out of it . austin compareth this to one , who being fallen into a great pit , his friend asked him how he came in ; nay ( saith he ) rather seek how to get me out . and thus doe ye in these matters of sin , wherein you are wholly plunged . lecture xi . genes . . . but of the tree of knowledge of good and evil thou mayest not eate ; for in the day thou eatest thereof , thou shalt surely die . we come now in order to the law god gave adam ; and this may be considered two wayes : first , as a law , secondly , as a covenant . we will handle it first in the former notion . now , because the law god gave adam was partly naturall , and partly positive , both which did goe to the making up of that covenant , i shall handle both those distinctly : and first , let us consider gods positive law in the text , which is also called by divines , a symbolicall precept , because the obedience unto it was a symbolum or outward testimony of our homage and service to god. and the object of this command is not a thing good or bad in its own nature , but indifferent , and only evil because prohibited : so that in the words you have the object of this negative precept described two wayes ; first , by that which is proper to it , the tree of knowledge of good and evil : secondly , by that which is accidentall to it , viz. death infallibly upon the eating of it . and that this commandement might be the better received , in the verse before , god giveth a large commission to eate of any other tree besides this . when god made this world as a great house , he puts man into it as his tenant ; and by this tryall of obedience , he must acknowledge his land-lord . that adam did eate in the state of innocency , and was hungry , doth appeare by this text ; onely hunger was not in him , as it is in us , with paine and trouble . the difficulties must be handled in the opening of the doctrine , which is , that god besides the naturall law engraven in adams heart , did give a positive law , to try his obedience . the doubts in explicating of this point are , . what is meant by the tree of knowledge of good and evill ? and here , certainly , wee must take heed of being too curious , lest , as it was adams sin , to eate of it ; so it may be our curiosity to dive too farre into the knowledge of it . now when i aske what is meant by it , i doe not understand what kind of fruit or tree it was , whether apple or fig , ( that cannot be determined ) but why it had that name . the rabbins , who have as many foolish dreames about the old testament , as the friars about the new , conceive adam and eve to be created without the use of reason , and that this tree was to accelerate it . and , indeed , the socinians border upon this opinion , for they say , adam and eve were created very * simple , and weak in understanding ; and , say they , it 's impossible to conceive , that if adams soule were created so adorned with all knowledge and graces ( as the firmament is bespangled with stars ) how he should come to eate of the forbidden fruit , or to sin against god. but both these are false . that he had perfect knowledge , appeareth in his giving names to the creatures , and to eve , so fitting and apt ; and , eph. . the image of god is said to have a renewed mind : and that though thus knowing , he did yet sin ; and though thus holy , hee did yet fall ; it was because hee was not perfectly confirmed , but mutable . indeed divines doe much labour to expresse how his sin did begin , whether in the will first , or in the understanding ; but that is impertinent to this matter . that which is the most received , both by austin and others , is , that it was so called , not from any effect , but from the event , because it did indeed experimentally make to know good and evill : and so it 's usuall in scripture to call that by a name , which it had afterward . now though this be generally received , and cannot well be rejected , yet certainly it may be further said , that it was not called so by the meere event , but by the divine decree and appointment of god , as being given to be a boundary and limit to adam , that hee should not desire to know more , or otherwise then god had appointed . . why god would give a positive law , besides that of the naturall law in his heart . there are these reasons commonly given : . that hereby gods dominion and power over man might be the more acknowledged : for to obey the naturall law , might be a necessary condition , and not an act of the will : even as the heathens doe abstaine from many sins , not because forbidden by god , but as dissonant to their naturall reason . and even among christians there is a great deale of difference between good actions , that are done because god commands , and because of a naturall conscience . these two principles make the same actions to differ in their whole nature . therefore god would try adam by some positive law , that so the dominion and power which god had over him might be the more eminently held forth : and therefore adam in this was not to consider the greatnesse or goodnesse of the matter , but the will of the commander . . another reason , which floweth from the former , is , that so adams obedience might be the more tryed , and be manifested to be obedience . for , as austine , speaking of himselfe in confessing his wickednesse , that though he had no need or temptation to sin , yet to be a sinner he delighted in that ; nulla alia causa malitiae , nisi malitia : so on the contrary , it 's an excellent aggravation of obedience , when there is nulla alia causa obedientiae , nisi obedientia ; so that the forbearing to eate , was not from any sin in the action , but from the will of the law-giver . and austine doth well explaine this : if a man ( saith he ) forbid another to touch such an herb , because it 's poyson , this herb is contrary to a mans health , whether it be forbidden or no : or if a man forbid a thing , because it will be an hinderance to him that forbiddeth ; as to take away a mans mony , or goods , here it 's forbidden , because it would be losse to him that forbiddeth : but if a man forbids that which is neither of these waies hurtfull , therefore it 's forbidden , because bonum obedientiae per se , & malum inobedientiae per se monstraretur . and this is also further to be observed , that though the obedience unto this positive law be far inferiour unto that of the morall law , because the object of one is inwardly good and the object of the other rather a profession of obedience , then obedience ; yet the disobedience unto the positive law is no lesse hainous then that to the morall law , because hereby man doth professedly acknowledge he will not submit to god : even as a vassall , that is to pay such homage a yeare , if he wilfully refuse it , doth yearly acknowledge his refractorinesse . hence the apostle doth expresly call adams sin disobedience , rom. . not in a generall sense , as every sin is disobedience ; but specifically it was ( strictly taken ) the sin of disobedience : he did by that act cast off the dominion and power that god had over him , as much as in him lay ; and though pride and unbelief were in this sin , yet this was properly his sin . . why god would make this law , seeing he fore-knew his fall , and abuse of it . for such is the profane boldnesse of many men , that would have a reason of all gods actions , whereas this is as * if the owle would look into the sun , or the pigmee measure the pyramides . although this may be answered without that of pauls , who artthou , o man , &c. for god did not give him this law to make him fall ; adam had power to stand . therefore the proper essentiall end of this commandement was to exercise adams obedience . hence there was no iniquity or unrighteousnesse in god. bellarmine doth confesse , that god may doe that , which if man should doe , hee sinned : as , for instance , man is bound to hinder him from sin that he knoweth would doe it , if it lay in his power ; but god is not so tyed , both because hee hath the chiefe providence , it 's fit he should let causes work according to their nature ; and therefore adam , being created free , hee might sin , as well as not sin ; as also because god can work evill things out of good ; and lastly , because god , if hee should hinder all evill things , there would many good things be wanting to the world , for there is nothing which some doe not abuse . the english divines in the synod of dort held , that god had a serious will of saving all men , but not an efficacious will of saving all : thus differing from the arminians on one side , and from some protestant authours on the other side ; and their great instance of the possibility of a serious will and not efficacious , is this of gods to adam , seriously willing him to stand , and with all giving him ability to stand : yet it was not such an efficacious will , as de facto did make him stand ; for , no question , god could have confirmed the will of adam in good , as well as that of the angels and the glorified saints in heaven . but concerning the truth of this their assertion , we are to enquire in its time . but for the matter in hand , if by a serious will be meant a will of approbation and complacency , yea and efficiency in some sense , no question but god did seriously will his standing , when he gave that commandement . and howsoever adam did fall , because he had not such help that would in the event make him stand , yet god did not withdraw or deny any help unto him , whereby he was enabled to obey god. to deny adam that help , which should indeed make him stand , was no necessary requisite at all on gods part . but secondly , that of austins is good , god would not have suffered sin to be , if he could not have wrought greater good then sin was evill : not that god needed sin to shew his glory ; for he needed no glory from the creature : but it pleased him to permit sin , that so thereby the riches of his grace and goodnesse might be manifested unto the children of his love . and if arminians will not be satisfied with these scripture considerations , wee will say as austine to the hereticks , illigarriant , nos credamus , let them prate while we beleeve . . whether this law would have obliged all posterity . and certainly wee must conclude , that this positive command was universall , and that adam is here taken collectively ; for , although that adam was the person to whom this command was given , yet it was not personall , but to adam as an head , or common person : hence rom. . all are said to sin in him , for whether it be in him , or , in as much as all have sinned , it cometh to the same purpose ; for how could all be said to have sinned , but because they were in him ? and this is also further to be proved by the commination , in the day thou eatest thereof , thou shalt dye : now all the posterity of adam dyeth hereby . besides , the same reasons which prove a conveniency for a positive law , besides the naturall for adam , doe also inferre for adams posterity . it is true , some divines that doe hold a positive law would have been , yet seem to be afraid to affirme fully , that the posterity of adam would have been tryed with the very same commandement of eating the forbidden fruit : but i see no cause of questioning it . now all this will be further cleared , when wee come to shew , that this is not meerly a law , but a covenant , and so by that meanes there is a communicating of adams sinne unto his posterity . and , indeed , if god had not dealt in a covenant way in this thing , there could be no more reason , why adams sinne should be made ours , then the sinnes of our immediate parents are made ours . i know peter martyr ( and he quoteth bucer ) is of a minde , that the sinnes of the immediate parents are made the sins of the posterity ; and austin inclineth much to that way : but this may serve to confute it , that the apostle , rom. . doth still lay death upon one mans disobedience . now , if our parents and ancestors were as full a cause as adam was , why should the accusation be still laid upon him ? but of this more hereafter . . how the threatning was fulfilled upon him , when he did eat of the forbidden fruit . we need not run to the answer of some , that this was spoken onely by way of threatning , and not positively , as that sentence upon the ninivites ; for these conclude , therefore adam died not , because of his repentance : but adam did not immediately repent , and when he did , yet for all that he died . others reade it thus , in the day thou eatest thereof , and then make the words absolute that follow , thou shalt die : as if god had said , there is no day excepted from thy death , when thou shalt eate . but the common answer is best , which takes to die , for to be in the state of death : and therefore symmachus his translation is commended , which hath , thou shalt be mortall ; so that hereby is implyed a condition and a change of adams state as soon as he should eate this forbidden fruit : and by death , we are not onely to meane that of the actuall dissolution of soule and body , but all diseases and paines , that are the harbingers of it . so that hereby christians are to be raised higher , to be more eagle-eyed then philosophers : they spake of death and diseases , as tributes to be paid , they complained of nature as a step-mother ; but they were not able to see sin the cause of this . yea , in this threatning we are to understand spirituall death , and eternall also . indeed , it 's made a question , whether , if adam had continued , be should have been translated into heaven , or confirmed onely in paradise ? but that his death would have been more then temporall , appeareth fully by rom. . indeed , the things that concern heaven and hell , or the resurrection , are not so frequently and plainly mentioned in the old testament as in the new ; yet there are sufficient places to convince , that the promises and threatnings in the old testament were not onely temporall , as some doe most erroneously maintain . . whether adam was mortall , before his eating of the forbidden fruit . and this indeed is a very famous question ; but i shall not be large in it . the orthodox they hold , that immortality was a priviledge of innocency , and that adams body then onely became mortall , when his soule was made sinfull . this is vehemently opposed by papists , and by socinians : now they both agree , that man should not actually have dyed , but for sin ; only they say , he was mortall , as the socinians , or immortall , by a meere supernaturall gift of god ▪ but a thing may be said to be immortall severall wayes , as the learned observe : . from an absolute necessity , either inward or outward ; in this sense god only is said to be immortall . . when there is no inward materiall cause of dissolution , though outwardly it may be destroyed ; and thus are angels , and the soules of men . . a thing may be said to be immortall by some speciall gift and appointment of god , as the bodies glorified : and , as some say , the heavens and maine parts of the world shall have only a qualitative alteration , not a substantiall abolition . . that is immortall , which hath no propensity to death , yet such a condition being put , it will die ; and thus adam was : therefore in some sense he may be said mortall , in another immortall : but because he is commonly called mortall that is obnoxious to death , therefore we say , adam , before his sin , was immortall ; and this is abundantly confirmed by this sentence of commination . and therefore though adam would have eaten and drunk , though his body was elementary , and the originall of it dust , though he would have begotten children ; yet none of these can prove him mortall , because the righteousnesse in his soule would have preserved the fit temperament of his body , especially having gods promise made to his obedience . . whether upon this threatning , thou shalt die , can be fixed that cursed opinion of the mortality of the whole man , in soul as well as body . of all the errours that have risen up , there is none more horrid in nature , and more monstrous in falshood then this : so that if it could be true of any mans soul , that it was not an immateriall substance , but onely a quality of the temperament ; it would be true of the authour of that book , which seemeth to have little sense and apprehension of the divine authority in the scriptures concerning this matter . what an horrid falshood is it to call the doctrine of the immortall soul an hell-hatched doctrine ? and what a contradiction also to call it hell-hatched , when yet he holdeth there is no hell ? but certainly you would think , for a man to dare to broach such an opinion , he must have places of scripture as visible as the sun. but this text is his achilles , and all the rest shrowd under this , from which he frames his first and chiefest argument , thus : what of adam was immortall through innocency , was to be mortaliz'd by transgression : but whole adam was in innocency immortall : therefore all and every part , even whole man was lyable to death by sin . but what logician doth not see a great deale more foisted into the conclusion , then was in the premises ? whole adam was to be mortaliz'd , therefore all and every part . what a non sequitur is here ? that is true of the whole ; as it is the whole , which is not true of every part . if i should say , whole christ dyed , ( for death is of the concrete , the person ) therefore all and every part of christ died , therefore his divine nature died ; this would be a strange inference : yet upon this fallacy is the frame of all his arguments built . man is said to be mortall , whole man dieth , therefore every part of man dieth . there is difference between totum and totalii as , the whole , and every part of that whole . it 's true , death doth bring the compositum , the person , to a non-entity , but not every part of that compositum to a non-entity . besides , that which was immortall , is mortalized , according to their natures , the soule dieth a spirituall and an eternall death . but see how the devill carries this man further , and sets him upon the pinacle of errour , and bids him throw himself head-long ; because he doth evidently say , that if the souls were destroyed as well as the bodies , then there would be no heaven nor hell as yet ; he is bold , and confesseth there is none till the resurrection . now if this be so , then how shall that be true , that the heaven must contain christ till he come ? this doth exceedingly puzzle him , but he takes the heaven for the place where the sun is , and concludes peremptorily ( as if he had been in the same also ) that christs glorified body is in the sun : without doubt ( saith he , pag. . ) he must be in the sun ; and ( saith he , pag. . ) the sun may be called well the right hand of god , by which through christ in him we live , and move , and have our being : and there speaketh nothing but darknesse about light , as that the sun is the vaile , to keep off the light of christs body from us , which otherwise would be so glorious , we could not see it and live . but how dare any man make this interpretation , the heavens must contain him , that is , he must be in the sun , till he come to restitution of all things ? the naming of these things is confutation enough , onely this i brought as in a passage meerly , to see what cause we have to pray to god to keep us from our selves , and our own presumptuous thoughts . use . of instruction , that a law may be made , even to a righteous man , and that threatnings may be menaced to a man , who yet is not under the actuall curse and damning power of the law. use . to see the goodnesse of god , that tryed adam but with one positive precept . this should be a caution against multitude of church precepts : how did austin complain of it , and gerson in his time ? use . how the devill doth still prevaile over us with this temptation of knowledge . there were hereticks called gnostici , and ophitae . this desire to eate of the tree of knowledge , hath brought much ignorance and errour . i know there are many people so sottish and stupid , that the divell could never intice them with this temptation : they account it a trouble , even the knowledge of meere necessary things to salvation ; but when men desire to know above that which is written , this is a dangerous precepice . use . to take heed of our selves . if adam , thus perfect , did faile in a command of tryall about so little a matter , take heed where you set gun-powder , seeing fire is in your heart . compare this of adams with that of abraham , what a vast difference ? austin thanks god that the heart and temptation did not meet together . lecture xii . gen. . . and god said , let us make man in our image , after our likeness . you have heard of a two-fold law given to adam : one by outward prescript , for tryall and exhortation of his obedience , the other by implantation , which was the morall law , and of that at this time . when god had made all other things , then man , the immediate and proxime end , was created ; it being gods goodnesse to make no living creature before he provided the food and nourishment of it . and thus man , the last , but the choicest externall and visible piece of his workmanship , is created , but in a great difference from the former ; for his creation is brought in by way of deliberation and advice , let us make man : which words denote , . the excellency of the man to be made , . the mysterie of the trinitie is here implyed ; for , howsoever the jewes would have it , that he spoke to the angels , or the inanimate creatures : or others , that the word is used in the plurall number for dignitie sake , as they shew examples in the hebrew : yet we rather joyn with those that doe think it implyed , not indeed that this text of it self can prove a trinity , for the plurall number proveth no more three , then foure or two , but with other places that doe hold forth this doctrine more expresly : so that in the words you have the noble and great effect , man ; the wise and powerfull efficient , god ; the excellent and admirable pattern or exemplar , after our image : god made man after his image , and so implanted it in him , that that image could not be destroyed , unlesse man destroyed himself ; not that this image was his naturall substance and essence , but it was a concreated perfection in him . now , for the opening of this truth , let us consider these particulars : . whether image or likenesse doe signifie the same thing . for the papists , following the fathers , make this difference : that image doth relate to the naturalls that man hath , his rationall soule with the naturall properties ; and likenesse to the gratuitalls or supernaturalls , which were bestowed upon him . now the orthodox , especially the calvinists , though they deny not but that the soule of a man , with the faculties thereof , may be called the image of god , secondarily and remotely , ( herein differing from the lutherans , who will not acknowledge thus much ) so that principally and chiefly it be placed in righteousnesse and holinesse ; yet they say , this cannot be gathered from the words , for these reasons : . because verse . where there is the execution of this decree in the text , there onely likenesse is named , and gen. . there is onely image named , and gen. . adam is said to beget seth after his image and likenesse ; where such a distinction cannot be made : and this is so cleare , that pererius and lapide doe confesse it . nor is that any matter , because they are put down as two substantives : for that is usuall with the hebrewes , when the later is intended onely as an adjective : so jerem. . . to give you an end and expectation , that is , an expected end ; so here , image and likenesse , that is , an image most like . . it 's considerable in what an image doth consist . now the learned , they speak of a four-fold image , or likenesse : . where there is a likenesse in an absolute agreement in the same nature : and thus the son of god is the expresse image of the father . . by participation of some universall nature : so a man and a beast are alike in their common nature of animality . . by proportion onely : as the pilot of a ship , and the governour in the common-wealth are alike . . by agreement of order , when one thing is a pattern for another to be made after it : and this is properly to be an image ; for two things goe to the nature of an image : . likenesse , and then . that this likenesse be made after another as a pattern . thus one egge is like another , but not a pattern of another : so man was made like angels , yet not after their image , as the socinians would have it . so that , to be made after the image of god , implieth a likenesse in us to god ; and then , that this likenesse in us , is made after that pattern which is in god. and howsoever man is a body , and god a spirit ; yet this image and likenesse may well be in other considerations . it was the opinion of osiander , that therefore we are said to be made after the image of god , because we are made after the likenesse of that humane nature , which the second person in trinity was to assume : and this hath been preached alate as probable ; but that may hereafter be confuted , when we come to handle that question , whether christ , as a mediatour , was knowne and considered of in the state of innocency ? . let us consider in what that image or likenesse doth consist . where , not standing upon the rationall soule of a man , which we call the remote image of god , in which sense , we are forbid to kill a man , or to curse a man , because he is made after the image of god ; we may take notice of the severall perfections and qualifications in adams soul : as , . in his understanding there was an exact knowledge of divine and naturall things : of divine , because otherwise he could not have loved god , if he had not known him , nor could he be said to be made very good . hence some make a three-fold light : . that of immediate knowledge , which adam had . . the light of faith , which the regenerate have . . the light of glory , which the saints in heaven have . now how great is this perfection ? even aristotle said , that a little knowledge , though conjecturall , about heavenly things , is to be preferred above much knowledge , though certain , about inferiour things . how glorious must adams estate be , when his understanding was made thus perfect ? and then for inferiour things ; the creatures , his knowledge appeareth in the giving of names to all the creatures , and especially unto eve. adam indeed did not know all things , yea he might grow in experimentall knowledge ; but all things that were necessary for him , created to such an happy end , to know , those he did : but to know that he should fall , and that christ would be a mediatour , these things he could not , unlesse it were by revelation , which is not supposed to be made unto him . so , to know those things which were of ornament and beauty to his soul , cannot be denyed him . thus was adam created excellent in intellectuall abilities ; for sapience , knowing god ; for science , knowing the creatures ; and for prudence , exquisite in all things to be done . . his will , which is the universall appetite of the whole man , which is like the supreme orbe , that carrieth the inferiour with the power of it , this was wonderfully good , furnished with severall habits of goodnesse , as the firmament with stars : for in it was a propensity to all good , ephes . . . it 's called righteousnesse and true holinesse : and eccl. . . god made man upright : his will was not bad , or not good , that is , indifferent ; but very good . the imaginations of the thoughts of his heart were only good , and that continually . and certainly if david , job . and others , who have this image restored in them but in part , doe yet delight in gods will , how much more must adam , who when he would doe good , found no evil present with him ? he could not say as we must , lord , i beleeve , help my unbelief : lord , i love , help my want of love . he could not complain , as that man , libenter bonus esse vellem , sed cogitationes meae non patiuntur . yet , though his will was thus good , he needed help from god to be able to doe any good thing . i know there are some learned divines , as pareus , that doe deny the holinesse adam had , or the help god gave adam , to be truly and properly called grace ; righteousnesse they will call it , and the gift of god , but not grace . therefore pareus reproveth bellarmine for stiling his book de gratia primi hominis : and his reason is , because the scripture makes that onely grace which comes by christ , and when the subject is in a contrary condition , as we are ; but it was not so with adam : but i cannot tell whether this be worth the while to dispute . this is certain , first , that adam could not persevere or continue in obedience to god , without help from god. nor secondly , was he confirmed in a state of goodnesse , as the angels are ; yea , as every godly man now is through christ : and therefore being mutable , we may well conceive a possibility of his falling , though made thus holy . . in his affections . . these tempests and waves were under the command of that holinesse : they were to adam as wings to the bird , as wheels to the chariot ; and he was not , as actaeon ; devoured of those that followed him , as it is with us : for , if you consider affections in the rise of them , they did not move , or stirre , but when holinesse commanded them . this is proved , in that he was made right : therefore there could not any affection stirre or move irregularly ; as it 's said of christ ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he troubled himself . there were indeed affections moving in christ , and so in adam ; but they were as clean water moved in a clear glasse : but in us they are as water stirred in a muddy place , which casteth great defilement . adam therefore , being made right , he could set his affections , as the artificer doth his clock , to make it strike when and what he will. . these affections are subjected in regard of the continuance of them . when our affection and passions are raised , how hardly are they composed again ? how are we angry , and sin ? how doe we grieve , and sin ? whereas in the state of innocency , they were so under the nurture of it , that , as we command our dogs to fetch and carry , and to lay down ; so could adam then do , bid come fetch such an object , and then bid it to lay down again . . in regard of the degrèes of them . we are so corrupted , that we cannot love , but we over-love ; we cannot grieve , but we over-grieve : all our heat is presently feaverish ; but it was then far otherwise . now then by this righteousnesse you may perceive the glorious image that god put upon us , and apply it to us , who are banished not onely out of a place of paradise , but out of all these inward abilities : and who can deplore our estate enough ? thus was the morall law written in his heart : and what the command is for direction , that he was for conversation . and howsoever the socinians deny this law written in his heart , yet acknowledging he had a conscience , which had dictates of that which was good and righteous , it amounts almost to as much . non is it any matter , though we reade not of any such outward law given to him : nor is it necessary to make such a question , whether the breach of the morall law would have undone adam and his posterity , as well as the transgression of the positive law . for all must necessarily think , that the morall law implanted in his heart , and obedience thereunto , was the greatest part of adams happinesse and holinesse . although we told you , disobedience unto that positive precept , which was onely for tryall , might in some sense be judged more hainous , then disobedience to the morall law. in the next place , the image of god did consist in a freedome from all feare of misery and danger , even proportionably as god is without feare : and this happinesse is the consequent of his holinesse . and if it be true of the image of god repaired in us , that it is to make us serve him without fear all , the dayes of our life , how much more must it be verified of adam in that estate ? and if you demand how adam could be without feare , seeing he knew he might fall , and so become miserable : the answer is to be taken from that state wherein he was created ; having no guilt within him , he could have no feare : even as some learned men say , the godly shall remember their sins in heaven , yet without shame and sorrow , because that glorified nature is not capable of it . and this is a reason why eve was not a friend of the serpent , thought it was used by the devill to speak . lastly , this image of god consisted in the dominion and soveraignty he had over the other creatures . and this was rather a consequent of this image , then part of it ; for when god had declared his will to make man after his image , then he also said he should rule over the rest . the socinians indeed make this the onely ground or particular wherein this image doth consist , and therefore hold that the woman was not made after the image of god , because she was made in subordination to the man. but that is easily answered ; for , although she was made in subjection to him , yet with dominion over the rest of the creatures . now we might adde also , that in his body there was something of gods image ; as the impassibility of it , and the immortality : but these things do not come within my subject . we therefore come to shew the properties of this righteousnesse and holinesse that was thus fixed in adams heart . . it 's called originall , to difference it from actuall holinesse ; as we call it originall sin , to distinguish it from actuall : and therefore the learned call it originall , partly in regard of it self , because it was the first righteousnesse ; partly because of adam , who had it as soon as he was created . as the schools say of originall sin , quàm primum originatur homo , originatur itidem peccatum ; so we may of adam in his righteousnesse , in ortu virtus , as the father said , in ortu vitium est : and partly in regard of his posterity , for it should have been propagated to them . . another property of this righteousnesse is , that it is universall , comprehending the rectitude of all the parts and faculties of the soul : so that adam was , for his soul , as absalom is said to be comely for his body , from the head to the foot no blemish at all : so that this was not a perfection in one part onely , but all over ; as our corruption makes us , as he said of the martyr wounded in many places , totum vulnus . . it was harmonious : there was not onely rectitude in every part , but a sweet correspondency one with the other ; there was no rebellion or fight between the inferiour appetite and the understanding . therefore some learned men say , this righteousnesse is not to be conceived as an aggregation of severall habits , but as an inward rectitude of all faculties : even as the exact temperament of the body is not from any superadded habit , but from the naturall constitution of the parts . . this righteousnesse and holinesse it was a perfection due to adam , supposing the end to which god made him . if god required obedience of adam to keep the law , and happinesse thereupon , it was due not by way of merit , but condecency to gods goodnesse , to furnish him with abilities to performe it ; as the soul of adam was a due to him , supposing the end for which god made him . indeed , now it 's of grace to us , and in a far different consideration made ours , because we lost it . lastly , this was to be a propagated righteousnesse ; for , as it is to be proved hereafter , god did all this in a way of covenant with adam , as a publike person : and howsoever every thing that adam did personally was not made ours , ( we did not eate in his eating , nor drink in his drinking , we did not dresse the garden in his dressing of it ) yet that which he did federally , as one in convenant with god , that is made ours ; so his sin and misery is made ours , then his righteousnesse and happinesse : as it is now , by one man sin entred into the world , and death by sin ; so then it would have been by one man righteousnesse , and life by righteousnesse . questions to be made : . whether this righteousnesse was naturall to adam , or no ? howsoever some have thought this a meere contention of words , and therefore if they were well explained , there would be no great difference ; yet the papists make this a foundation for other great errours : for , grant this righteousnesse to be supernaturall to adam , as it is to us , then . it will follow , that all the motions rising in the appetite against reason , are from the constitution of our nature ; and so no more sin , then hunger and thirst is . . that free-will is still in us , and that we have lost nothing but that which is meerly superadded to us . or they compare this righteousnesse adam had , sometimes to an antidote , which preserves against the deadly effect of poyson : sometimes to a bridle , that rules the horse ; so that they suppose mans nature would of it self rebell , but onely this was given to adam to check it : sometimes to sampsons haire , whereby he had supernaturall strength , but when that was cut off , he had onely naturall : so that by this doctrine , man , now fallen , should be weaker then he was , but not corrupted . therefore we must necessarily conclude , that this righteousnesse was naturall to him ; not indeed flowing from the principles of nature , for so it was of god , but it was a perfection sutable or connaturall to him ; it was not above him , as it is now in us . as a blind man that was made to see , though the manner was supernaturall , yet to see was a naturall perfection . . whether justifying faith was then in adam ? or , whether faith and repentance are now parts of that image ? this is a dispute among arminians , who plead adam had not a power to beleeve in christ , and therefore it 's unjust in god to require faith of us , who never had power in adam to doe it . the answer is easie , that adam had power to beleeve , so farre as it did not imply an imperfection in the subject . it was a greater power then to beleeve in christ , and therefore it was from the defect of an object that he could not doe it : as adam had love in him , yet there could be no miserable objects in that state to shew his love . as for that other question , whether repentance be part of the image of god ? answ . so farre forth as it denoteth an imperfection in the subject , it cannot be the image of god ; for we doe not resemble god in these things : yet as it floweth from a regenerated nature , so farre it is reductively the image of god. . whether this shall be restored to us in this life again ? howsoever we are said to be partakers of the divine nature , and to be renewed in the image of god ; yet we shall not in this life have it fully repaired . god hath declared his will in this , and therefore are those stubs of sin and imperfection left in us , that we might be low in our selves , bewaile our losse , and long for that heaven , where the soule shall be made holy , and the body immortall : yet , for all this , we are to pray for the full abolition of sin in this life , because gods will and our duty , to be holy as he is holy , is the ground of our prayer , and not his decree for to have such or such things done . yea , this corruption is so farre rooted in us now , that it is not cleansed out of us by meere death , but by cinerifaction , consuming the body to ashes : for we know , lazarus and others that died , being restored again to life , yet could not be thought to have the image of god perfectly , as they were obnoxious to sin and death . use . to humble our selves under this great losse . consider what we were , and what we are , how holy once , how unholy now : and here who can but take up bitter mourning ? shall we lament , because we are banished from houses and habitations , because we have lost our estates , and comforts ? and shall we not be affected here ? this argueth us to be carnall more then spirituall : we have lost a father , a friend , and we wring our hands ; we cry , we are undone : and though we have lost god and his image , all happinesse thereby , yet we lay it not to heart . oh think what a glorious thing it was to enjoy god without any interruption ; no proud heart , no earthly heart , no lazie heart to grapple with : see it in paul , o wretched man that i am , &c. basil compareth paul to a man thrown off his horse , and dragg'd after him , and he cryeth out for help ; so is paul thrown down by his corruptions , and dragg'd after them . use . to magnifie the grace of god in christ , which is more potent to save us , then adams sin can be to destroy us . this is of comfort to the godly , rom. . the apostle , on purpose , makes a comparison between them , and sheweth the preheminency of one to save , above the other to destroy . there is more in christ to save , then in adam to damne : christs obedience is a greater good , then adams sin is an evil : it 's more honour to god , then this is or can be a dishonour . let not then sin be great in thy thoughts , in thy conscience , in thy feares ; and grace small and weak . as the time hath been , when thy heart hath felt the gall and wormwood of sin ; so let it be to feel the power of christ . as thy soul hath said , by one man sin ; so let it say , by one man life . lecture xiii . genes . . . in the day thou eatest thereof , thou shalt die . i have already handled this text , as it containeth a law given to adam by god , as a foveraigne lord over him ; now i shall re-assume this text , and consider it as part of a covenant , which god did enter into with adam and his posterity ; for these two things , a law , and a covenant , arise from different grounds : the law is from god as supreme , and having absolute power , and so requiring subjection ; the other ariseth from the love and goodnesse of god , whereby he doth sweeten and mollifie that power of his , and ingageth himself to reward that obedience , which were otherwise due , though god should never recompence it . the words therefore being heretofore explained , and the text eas'd of all difficulties , i observe this doctrine , that god did not only , as a law-giver , injoys obedience unto adam ; but as a loving god , did also enter into covenant with him . and for the opening of this , you must take these considerations : . that this covenant with adam in the state of innocency , is more obscurely laid down , then the covenant of grace after the fall : for afterwards you have the expresse name of the covenant , and the solemne entring into it by both parties ; but this covenant made with adam , must only be gathered by deduction and consequence . this text cometh the neerest to a covenant , because here is the threatning expressed , and so by consequent some good thing promised to obedience . we are not therefore to be so rigid , as to call for expresse places , which doe name this covenant ; for that which is necessarily and immediately drawn from scripture , is as truly scripture , as that which is expresly contained in it . now there are these grounds to prove god dealt in these commandements by way of covenant : . from the evil threatned , and the good promised . for , while there is a meere command , so long it is a law onely ; but when it is further confirmed by promises and threatnings , then it becomes a covenant . and if that position be true of some , which maketh the tree of life a sacrament , then here was not onely nudum pactum , a meer covenant ; but a seale also to confirme it . and certainly , being god was not bound to give adam eternall life if he did obey , seeing he owed obedience to god under the title of a creature , it was of his meere goodnesse to become ingaged in a promise for this . i know it 's a question by some , whether adam , upon his obedience , should have been translated into heaven , or confirmed onely in that naturall life , which was marvellous happy ? but either way would have been by meer promise of god , not by any naturall necessity . life must be extended as farre as death ; now the death threatned was not onely a bodily death , but death in hell : why therefore should not the life promised be a life in heaven ? in the second place , another argument to confirme that god dealt in a covenant with adam is , in that his posterity becomes guilty of his sin , and so obnoxious unto the same punishment which was inflicted upon adam in his own person . now we must come to be thus in adam , either by a naturall propagation , and then adam should be no more to us then our parents , and our parents sins should be made ours as well as adams ; which is contrary to the apostle , rom. . who chargeth it still upon one man. and besides , who can say , that the righteousnesse , holinesse and happinesse , which we should have been partakers of in adams standing , could come by a naturall necessity , but onely by the meere covenant and agreement of god ? adams repentance might then have been imputed to us , as well as his sin . lastly , the apostle rom. . makes all men in adam , as the godly are in christ : now beleevers come to receive of christ , not from a naturall necessity , because they have that humane nature which christ took upon him , ( for so all should be saved ) but by a federall agreement . . let us consider in the next place , what a covenant doth imply ; first in the word , then in the thing signified . for i should deal very imperfectly , if i did not speak something of the generall nature of it , though hereafter more may be spoken of . you may therefore take notice , that there are things among men , that doe induce a publike obligation , that yet doe differ : a law , a covenant , and a testament . now a law and a testament , they are absolute , and doe not imply any consent of the party under them : as a law requireth subjection , not attending unto , or expecting the consent of inferiours ; and so a testament , or a will of man , is to bequeath such goods and legacies unto a man , not expecting a consent . indeed sometimes such goods are bequeathed with a condition , and so a man may refuse whether he will be executor , or no ; but this is accidentall to the nature of a testament . but a covenant , that differs from the two former , in that it doth require consent and agreement between two parties : and in divinity , if it be between man entire and upright , it is called by some , a covenant of friendship ; if it be between god and man fallen , it is called , a covenant of reconciliation . hence in covenants , that are not nuda pacta ( meer covenants ) but are accompanied with some solemnities , there were stipulations added , which were done by question and answer : doe you promise ? i promise . hence it is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and we call it stipulation , from the latine word , which comes from the greek word , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is as much as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because these words did make the covenant valid . as for isidorus his etymology of stipulation , à frangendis stipulis , because , when they promised or entred into an agreement , they brake a stick between them , and then joyning it together , so made a promise , and every party kept a piece , as a tally , to maintain their agreement ; this is rejected by the learned salmasius . but because a covenant doth thus differ from a testament , hence hath it troubled the learned , why the hebrew word , which signifieth a covenant , should be translated by the septuagint , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a testament ; and so the new testament useth it in this sense : for , if it be a covenant , how can it be a testament , which implyeth no consent ? let us answer first to the word , and then to the matter . therefore is a covenant called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a testament , and not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( as aquila translates it ) because this word is of a large sense , coming from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to order and dispose : and when we say , the new or old testament , it is not to be taken so strictly , as we call a mans will and testament , though sometimes the apostle doth , in reference to christs death ; but more largely , for gods gracious ordering of such mercies and spirituall benefits to us , by the death of christ : for the covenant of grace implyeth christs death , it being a covenant of reconciliation . now , because there is in the covenant of grace something of a covenant , and something of a testament also , hence some do call it a testament-covenant , because it is of a mixt nature . the rise of the hebrew word berith is variously conjectured : some make it to come from a word that signifieth to eat , because of the sacrifices and feasts that were at a covenant : some from a word that signifieth to cut , because then in the striking of the covenant , there was a division of the beast that was killed : some from the word that signifieth to create , as also to order and dispose things by way of likenesse : some from a word that signifieth to be pure , and to choose , either because it 's by agreement , or because in covenants they ought to deal without all fraud : but i stand not upon these things . by this which hath been said it may appeare , that the covenant god made with adam , though it be truly called a covenant ; yet no wayes a testament , because there did not intervene the death of any to procure this good for adam . now to all this that hath been said , there must this caution be added , that a covenant is not so properly said to be with god and man , as between man and man : for among them consent is requisite , and doth mutually concurre to make the covenant valid : but neither in the covenant of nature or grace is this consent anteceding the validity of the covenant required in man. therefore if you regard the use of the word , and the application of it , it doth denote gods decree , and will , or promise about things , whether about the irrationall creatures , or the reasonable : such was gods covenant not to drown the world , and gods covenant with day and night ; yea , gods covenant with abraham did induce an obligation and tye upon abraham to circumcise his childe . and thus it was with adam , gods covenant did not depend properly upon his consent and acceptation , for he was bound to doe as god commanded , whether he would agree , or no. that adams consent was not necessary to make the covenant valid , doth appeare , in that he was bound to accept what god did require . and it 's indeed disputed , whether adam did so much as know ( and if he did not know , he could not consent ) that god did indent with him as a publike person , and so all his posterity in him ; although it may truly be thought , that adam did know this precept to be to him and his posterity : for hereby his sinne is made the more hainous , in undoing himself and all his ; as also , by the knowledge of this , he would be the more thankfull unto god , that should propagate such great mercies to him and his , and also be made more vigilant against falling . . in the next place let us consider , how god can be said to covenant , or enter into a promise with man : for it may be thought an imperfection , and hereby god may seeme to lose his right , that he cannot doe what he will. but this may be easily answered ; for , if god can give good things to man , he may also promise to give them : and therefore both to give , and to promise to give , are acts of liberality and dominion , and so not repugning to the majesty of god : nor doth god by promising to give , lose his dominion , no more then he doth by giving . it is true , a promise doth induce an obligation , and so in man it is with some imperfection ; but in god it is not , because he doth not hereby become obliged to us , but to his own self : so that we have not a right of justice to the thing , because god hath promised it to us ; but only god cannot deny himself nor his word , and therefore we are confident . and so aquinas well , deus non est debitor , quia ad alia non ordinatur , sed omnia ad ipsum , god by covenanting and promising doth not become a debtor , because he is not to be ordered for other things , but all things for him . hence is that saying of god , reddit debita nulli debens , donat debita nihil pendens : and so again , justus est , non quia reddit debitum , sed quia facit quod decet summè bonum : so that when god entreth into a covenant or promise , you must conceive of this sutably to his great majesty ; you must not apprehend of it , as when two men agree that are equall , and therefore a debt of justice ariseth between them , and one may implead the other ; but as a mercifull condescension on gods part , to promise such things to us , that so we might be the more confirmed in our hope in him . hence durand and ariminensis labour to prove , that gods promises doe not induce an obligation , but denote the disposition of god to give , although their arguments exclude onely a debt of justice from god. therefore although in the covenant god makes with man , there is a compact of mutuall fidelity , yet there is not a reciprocall , and equall right of covenanting , because of the inequality of the covenanters ; so that the whole disposition and ordering of the covenant with such conditions is on gods part , and not mans : hence it 's called gods covenant , and not mans . . consider why god will deale with man in a covenant way rather then in a meere absolute supreme way . there may be these reasons : . that god might hereby sweeten and indeare himself to us . for , whereas he might require all obedience from us , and annihilate us at last , or at least not vouchsafe heaven and ever lasting happinesse ; to shew how good and loving he is , he will reward that most bountifully , which is otherwise due to him : for god did not make man , because he needed him , but that there might be objects to whom he would communicate his love . thou needest not my goodnesse , or , that extendeth not to thee , saith david . it 's austins expression , the earth doth farre otherwise dry up , or swallow the water , thirsting for it , then the sun beames , which also consume the water : the one doth it indigentiâ out of want ; the other potentiâ , out of power and strength : so that adam could not but have thankfull and loving thoughts of god , that would thus condescend . . another reason might be , to incite and incourage adam the more to obedience . for , howsoever there was no sin in adam , or remisnesse : yet this might serve as a meanes to preserve him in his obedience to god. and here you may see , that to do a duty , because of a reward promised , is not a slavish and unlawfull thing ; for did not god deale thus with adam ? if he would obey , he should live ; but if not , then he must dye . will you say , with the antinomian , that this was an unlawfull thing , and this was to make adam legall , and one that was not affected with the goodnesse of god to him ? it is true , if a man obey god out of love to any thing more then god , or equally with god , this is unlawfull , according to that , minus te amat , qui tecum ( domine ) aliquid amat . . that hereby adams obedience might be the more willing and free . an absolute law might seeme to extort obedience , but a covenant and agreement makes it to appeare more free and willing , as if adam would have obeyed , though there could have been no obligation upon him to doe it . . consider that the nature of this covenant was of works , and not of faith . it was not said to adam , beleeve , and have life eternall ; but , obey , even perfect and entire obedience . it is true indeed , there was faith of adherence and dependance upon god in his promise and word , and this faith doth not imply any imperfection of the state of the subject as sinfull , ( which justifying faith doth ) for it was in christ , who in his temptations and tryalls did trust in god. and what the old testament calls trusting , the new calls beleeving ; yea , some say , that this kind of faith shall be in heaven , viz a dependance upon god for the continuance of that happinesse which they doe enjoy . this faith therefore adam had , but in that covenant it was considered as a gracious act and work of the soul , not as it is now , an organ or instrument to receive and apply christ . with us indeed there is justifying faith and repentance , which keeps up a christians life ; as the naturalists say , the calor innatus , and humidum radicale doe the naturall life : faith is like the calor innatus and repentance is like the humidum radicals ; and , as the philosopher saith , if the innate heat devoure too much the radicall moisture , or the radicall moisture too much the heat , there breed presently diseases : so it is with us , if beleeving make a man repent lesse , or repenting make a man beleeve the lesse , this turneth to a distemper . yet , though it were a covenant of works , it cannot be said to be of merit . adam though in innocency , could not merit that happinesse which god would bestow upon him : first , because the enjoying of god , in which adams happinesse did consist , was such a good , as did farre exceed the power and ability of man. it 's an infinite good , and all that is done by us is finite . and then in the next place , because even then adam was not able to obey any command of god , without the help of god. though some will not call it grace , because they suppose that onely cometh by christ ; yet all they that are orthodox do acknowledge a necessity of gods enabling adam to that which was good , else he would have failed . now then , if by the help of god adam was strengthned to do the good he did , he was so farre from meriting thereby , that indeed he was the more obliged to god. . god , who entred into this covenant with him , is to be considered as already pleased , and a friend with him , not as a reconciled father through christ . therefore here needed no mediatour , nor comfort , because the soul could not be terrified with any sin . here needed not one to be either medius , to take both natures ; or mediatour , to performe the offices of such an one . in this estate that speech of luthers was true , which he denieth in ours , dens est absolute considerandus . adam dealt with him as absolutely considered , not relatively : with us , god without christ is a consuming fire , and we are combustible matter , chaffe and straw : we are loathsome to god , and god terrible to us ; but adam he was deo proximo amicus , & paradisi colonus , as tertullian , and therefore was in familiarity and communion with him . but , although there was not that ordered administration and working of the three persons in this covenant of works , yet all these did work in it . hence the second person , though not as incarnated , or to be incarnated ; yet he with the father did cause all righteousnesse in adam : and so the holy ghost , he was the worker of holinesse in adam , though not as the holy spirit of christ purchased by his death for his church , yet as the third person ; so that it is an unlikely assertion which one maintains , that the trinity was not revealed in this covenant to adam : so that this sheweth a vast difference between that covenant in innocency , and this of grace . what ado is here for the troubled soul to have any good thoughts of god , to have any faith in him as reconciled ? but then adam had no fear , nor doubt about it . . this covenant did suppose in adam a power , being assisted by god , to keep it ; and therefore that which is now impossible to us , wa● possible to him . and certainly , if there had been a necessity to sin , it would have been either from his nature , or from the devill : not from his nature , for then he would have excused himself by this , when he endeavoured to clear himself . but tertullian speak● wittily , nunquam figulo suo dixit , non prudenter definxisti me , rudis admodum haereticus fuit , non obaudiit , non tamen blasphemavit , creatorem , lib. . ad mar. cap. . nor could any necessity arise from the devill , whose temptations cannot reach beyond a moral swasion . therefore our divines doe well argue , that if god did not work in our conversion beyond a morall swasion , he should no further cause a work good , then satan doth evil . nor could this necessity be of god , who made him good and righteous : nor would god subtract his gifts from him before he sinned , seeing his fall was the cause of his defection , not gods deserting of him the cause of his fall . therefore , although god did not give adam such an help , that de facto would hinder hi● fall , yet he gave him so much , that might and ought to prevent● it . and upon this ground it is , that we answer all those cavills , why god doth command of us that which is impossible for us to doe : for the things commanded are not impossible in themselves , but , when required of adam , he had power to keep them ; but he sinned away that power from himself and us . neither is god bound , as the arminians fancy , to give every one power to beleeve and repent , because adam in innocency had not ability to doe these ; for he had them eminently and virtually , though not formally : but more of these things in the covenant of grace . use . to admire with thankfulnesse gods way of dealing with us his creatures , that he condescends to a promise-way , to a covenant-way . there is no naturall or morall necessity that god should doe thus . we are his , and he might require an obedience , without any covenanting : but yet , to shew his love and goodnesse , he condescends to this way . beloved , not onely we corrupted , and our duties , might be rejected ; not onely we in our persons might be abashed , but had we all that innocency and purity which did once adorn our nature , yet even then were we unprofitable to god , and it was gods goodnesse to receive it , and to reward it . was then eternall life and happinesse a meere gift of god to adam for his obedience and love ? what a free and meere gift then is salvation and eternall life to thee ? if adam were not to put any trust in his duties , if he could not challenge god for a reward ; how then shall we relye upon our performances , that are so full of sin ? use . further to admire gods exceeding grace to us , that doth not hold us to this covenant still . that was a covenant which did admit of no repentance : though adam and eve had torn and rent their hearts out , yet there was no hope or way for them , till the covenant of grace was revealed . beloved , our condition might have been so , that no teares , no repentance could have helped us : the way to salvation might have been as impossible , as to the damned angels . to be under the covenant of works , is as wofull , as the poore malefactour condemned to death by the judge , according to the law , he falls then upon his knees , good my lord spare me , it shall be a warning to me , i have a wife and small children , o spare me : but , saith the judge , i cannot spare you , the law condemnes you : so it is here , though man cry and roare , yet you cannot be spared , here is no promise or grace for you . lecture xiv . genes . . . in the day thou eatest thereof , thou shalt die the death . having handled the law of god both naturall and positive , which was given to adam absolutely ; as also relatively in the notion of a covenant god made with adam , i shall put a period to this discourse about the state of innocency , by handling severall questions , which will conduce much to the information of our judgement against the errours spread abroad at this time , as also to the inlivening and inflaming of our affections practically . these questions therefore i shall endeavour to cleare : . whether there can be any such distinction made of adam , while innocent , so as to be considered either in his naturalls , or supernaturalls ? for this is affirmed by some , that adam may be considered in his meere naturalls , without the help of grace , and so he loveth god as his naturall utmost end , in that he is the preserver and authour of nature : or else in his supernaturalls , as god did bestow righteousnesse upon him , whereby he was inabled to enjoy god as his supernaturall end . and for this end is this errour maintained , that so man now born , may be made no worse then adam in that condition at first : which errour , if admitted , would much eclipse all that glory which is attributed in scripture to grace converting and healing of us . therefore to this question these things may be answered : . that it cannot be denied , but that in adam such qualities and actions may be considered , which did flow from him as a living creature , endued with a reasonable soul ; so cor. . . there the first adam is said to be made a living soul , that is , a living creature in his kinde , whereby he did provide and prepare those things for his nourishment and life that he needed : and this is to have a naturall body , as the apostle calls it . but we may not stay in the consideration of him as a man in an abstracted notion , but as so created by god for that end , to be made happy . therefore howsoever some learned speak of the animall state and spirituall estate of adam , yet both must be acknowledged to be naturall to him . . in the next place , we doe not hold in such a manner his righteousnesse and holinesse to be naturall to him , as that we deny every thing to adam that was supernaturall ; for , no question but the favour of god , which he did enjoy , may well be called supernaturall ; so also that actuall help of god ( say some , ) which was to be continued to him : for howsoever the principle , and habit as it were of righteousnesse , was naturall to him ; yet to have help from god to continue and persevere , was supernaturall . even as you see the eye , though it hath a naturall power to see , yet there is a further requisite to the act of seeing , which is light , without which it could not be . the second question is , whether christ did intervene in his help to adam , so that he needed christ in that state ? for here we see many learned and sound men differ : some say , that christ , being onely a mediatour of reconciliation , could no wayes be considered in any respect to adam ; for god and he were friends : others again make the grace of christ universally necessary , even to angels , and adam ; saying that proposition , [ without me ye can doe nothing , ] is of everlasting truth , and did extend to adam , not indeed by way of pardon or reconciliation , but by way of preservation and conservation in the state of righteousnesse : thus those excellent pillars in the church of god , calvin , bucer , and zanchy , with others . now for the clearing of this truth , we must consider these particulars : . that it cannot be denyed , but that christ , as the second person of the trinity , did create and make all things . this is to be diligently maintained against those cursed opinions that begin , even publikely , to deny the deity of christ . now there are three generall waies of proving christ to be god : . in that the name jehovah , and god , is applyed to him , without any such respect as to other creatures . . in that he hath the attributes of god , which are omnipotency and omnisciency , &c. . in that he doth the works which god only can doe ; such are , raising up from the dead by his own power , and creation : now that christ doth create and sustain all things , appeareth , john . col. . and hebr. . . so that it 's impudent blasphemy which opposeth clear scripture , to detract this from christ . indeed , his creating of the world , doth not exclude the other persons , onely he is included hereby . . what help the angels had by christ . here i finde different thoughts , even of the judicious . that place colos . . . to reconcile all things to himself by him , whether things in heaven or earth , is thought by some a firme place , to prove that the angels needed christ , even as a mediatour : and calvin upon the place brings two reasons why the angels need christs mediation : . because they were not without danger of falling , and therefore their confirmation was by christ . but how can this be proved , that their confirmation came from christ , and not from god , as a plentifull rewarder of their continued obedience ? indeed , if that opinion of salmerons were true , which holds it very probable , that the fallen angels were not immediately condemned , but had a set space and time of repentance given them , this would with more colour have pleaded for christs mediation ; but that opinion cannot be made good out of the scripture . . the second reason of calvin is , that the obedience of the angels was imperfect , or not so perfect , but that it needed pardon ; which he groundeth upon job . . his angels he charged with folly . this may be answered thus , that the obedience of the angels may be said imperfect negatively , or comparative , in respect of god ; it is not answerable to his greatnesse : but yet it is not imperfect privatively , as if it did want any perfection due to it , and so was to be pardoned . therefore eliphaz his expression tends onely to this , to shew the greatnesse and majestie of god , and that even angels themselves are but darknesse to his glory . if you aske then , what shall be thought of the place colos . . ? i answer , this place compared with ephes . . . [ that he might gather together in one all things in christ , ] may well be laid together ; for they speak the same thing . in the epistle to the colossians it's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to reconcile ; and that to the ephesians , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which word some expound to be as much as to bring to its first beginning ; and so it 's explained by them , that all things have suffered a defect from the beginning , and by christ are to be restored to their former state : others expound it of reducing all to one head , which is christ : others make it a metaphor , from those things which are largely set down , and then briefly capitulated , and summed up again ; thus , say they , all that was prefigured by the sacrifices , is fulfilled in christ : but we take the word in this sense , as it doth imply , to gather together those things which were scattered and divided ; and so it doth excellently describe the ruine and confusion that is brought upon all by sin . but then here is the difficulty again , how the angels can be said to be gathered , seeing they were never divided . to this some answer , that the all things here spoken in the text , are to be limited to men onely : so that the things in heaven , shall be the spirits of godly men already translated thither ; and the things in earth , those men that are living . but suppose it be extended to angels , yet will not this inferre their need of mediation by christ , but onely some benefit to redound unto them by christ ; and that is certain : for , first , by christ they have a knowledge of the mysteries of our salvation , as appeareth , ephes . . . and secondly , hereby they have joy in the conversion of a sinner ; and , lastly , angels become hereby reconciled with man : and this seemeth to be the most proper and immediate sense of the place . so that i cannot see any ground for that assertion , which saith , because there is no proportion between a creature and the creatour , therefore there must be a mediatour . and if this hold true of the angels , then it will also hold about adam ; for , there being no offence or breach made , there needed no mediatour to interpose . it 's hard to say , christ would have been incarnated , if adam had not sinned . all those , who hold the necessity of christ to adam and angels , must also necessarily maintain , that , though adam had not fallen , christ would have been incarnated . now when the scripture nameth this to be the principall end of christs coming into the world , to save that which is lost ; unlesse this had been , we cannot suppose christs coming into the flesh . whether indeed christ was not the first object in gods decree and predestination , and then afterwards men , and then other things , is a far different question from this . as for colos . . which seemeth to speak of christ as head of the church , that he might have preheminency in all things , this doth not prove his incarnation , though no fall of adam , but rather supposeth it . . whether the tree of life was a sacrament of christ to adam , or no ? for this also is affirmed by some , that the tree of life was a sacrament given to adam , which did represent christ , from whom adam was to receive his life . but upon the former grounds i doe deny , the tree of life to have any such sacramentall signification . it is true , i grant it to be a sacrament ; for there is no good reason to the contrary , but that sacraments may be in the state of innocency ; onely they did not signifie christ . why it was called a tree of life , is not the same way determined by all : some think , because it had a speciall quality and efficacy with it , to preserve adam immortall ; for , although he was so made , yet there were meanes appointed by god to preserve this state . but we will not conclude on this ; only we say , it was a sacrament , not only to admonish adam of his life received from god , but also of that happy life , which upon his obedience he was alwayes to enjoy . hence revel . . . happinesse is called eating of the tree of life , which is in the midst of paradise . we do not in this exclude adam from depending upon god for all things , or acknowledging him the sole authour of all his blisse : but onely there was not then that way of administration of good to us , as is now by christ to man plunged into sin . and this must be said , that we must not curiously start questions about that state in innocency ; for the scripture , having related that there was such a state once , doth not tell us what would have been , upon supposition of his obedience . . and so we may answer that demand , whether there was any revelation unto adam of a christ ? now what might be done , we cannot say ; but there is no solid ground to assert it : for , howsoever the apostle indeed makes a mysterious application of that speech of adam unto christ and his church , to set forth their immediate union ; yet it doth not follow , that adam did then know any such mysterie . indeed zanchy saith , that christ did in an humane shape appear , and put adam and eve together in that conjugall band ; but we cannot affirme this from scripture . and by this also it doth appeare , that the sabbath , as it was figurative of christ , had this consideration added unto it , as it was given to the jewes afterward , and in that respect it was to be abolished . that opinion is very much forced , which makes those words of gods blessing and sanctifying the sabbath day , gen. . to be by way of anticipation ; and therefore would deny the command of the sabbath to be given to adam , saying , there was onely one positive law , which was that of not eating the forbidden fruit , that was delivered unto adam . now , though this be false , yet that consideration of the sabbath , as it was figurative of christ , was not then in the state of the innocency . . another main question is , whether this state of reparation be more excellent then that in innocency . now here we cannot say one is absolutely better then the other , only in some respects one is excelled by the other : as , the first estate of adam did far exceed this in the rectitude it had , being altogether without any sin ; for he was not created ( as some would have it ) in a neutrall estate doth plainly repugne that image of god , after which he is said to be created . now what a blessed estate it is to have an heart not stained with fin , to have no blemish , nor spot in the soul , will appeare by paul's bitter complaint , who shall deliver me from this body of death ? that estate also doth excell ours in the immortality and outward felicity he enjoyed ; for our second adam , christ , howsoever he hath destroyed the works of sin and satan , yet he hath not fully removed the scars which those sins have left upon us : christ doing here , as those emperours , who had taken their enemies prisoners and captives , but yet killed them not immediately , till the day of triumph came . but on the other side , our condition is in one respect made happier then adams ; which is the certainty of perseverance in the state of grace , if once translated into it . and this consideration austin did much presse . we have indeed much sin with our grace , yet god will not let that spark of fire goe out : but adam had much holinesse , and no sin ; yet how quickly did he lose it ? not but that grace of it self is amissible as well as that of adams , but because of the speciall promise and grace of god in christ ; therefore whom he loves , he will alwaies love . the next question is , whether we may be now by christ said to be more righteous then adam ? for so an antinomian in his treatise of justification , pag. . . quoteth places out of some authours , as affirming this , that now by christ we have a more perfect righteousnesse , then that of angels , or was lost in adam ; and by this meanes labours to prove , that we are so holy , that god can see no sin in us . now , to answer this , i deny not , but the orthodox sometimes have used such expressions , and upon this ground , because the righteousnesse of christ as it was his , was of infinite value and consequence ; and so as we are in a mediatour , we are in a better and surer condition , then the angels or adam was : but they never used such expressions to the antinomian sense , as if hereby we were made not onely perfectly righteous , but also holy , and without sin . this opinion is at large to be refuted in the treatise about justification ; only thus much take for an answer , that the doctrine , which holdeth the imputation of christs righteousnesse , doth not necessarily inferre , that therefore we have righteousnesse more excellent then angels or adam ; for it is onely imputed to us for that righteousnesse which we ought to have : it is not made ours in that largenesse or latitude as it was christs , but as we needed it . now god never required of us such an holinesse as the angels have , or a greater righteousnesse then adam had ; and therefore it 's a senslesse thing to imagine , that that should be made ours which we never needed , or ever were bound to have : so that those expressions of the orthodox must be understood in a sound sense . . whether that which god requireth of us be greater , then that he demanded of adam in the state of innocency ? for thus the arminians hold , that greater abilities are now required of a man to beleeve the gospel , then were of adam to fulfill the law ; partly , because the mysterie of the gospel doth consist in meere revelation , which the law doth not ; as also , because all the actions required by the gospel do suppose a resurrection from that first fall . now ( say they ) more is required to rise from a fall , then to prevent a fall . and all this they urge , to prove the necessity of universall grace given to all . now to answer this : first , i conclude ( as before hath been proved ) that the nature of justifying faith was in adam , though there was not such a particular object about which it may be exercised ; for a thing may be for the nature of it , and yet not have such a name which it hath from a certain respect to some object that now is not , or from some effects which it cannot now produce : so mercy and grace was in god for the nature of it alwaies , but as it hath respect to a miserable and wretched creature , that was not till the creature was made so . and so in adam , there was the nature of love and pity , but yet in regard of some effects , which could not be exercised in that estate , his love could have no such name , as mercy or pity . thus adam for his faith , that faith which he did put forth in gods promise about eternall life , upon his obedience , was a justifying faith for the nature of it , but had not the denomination or respect of justifying , because such an object was impossible in that condition . hence that faith of dependency which adam had , was the same in nature which justifying faith is . therefore to the arguments proposed , we deny , that greater strength is required to rise , then to keep from falling ; for the same things which would have preserved adam from falling , as faith in the first place , the same also are required for a man to rise . and as adam would have stood , as long as his faith in god stood , the devill labouring to shake that by his temptation ; so christ praying for peter , a man fallen by adam , doth especially pray , that his faith may not fail , because by that he was supported and strengthned . lastly , whether adams immortality in that estate , be not different from that which shall be in heaven . yes , it is very plain it is so ; for he was so immortall , as that there was a possibility of mortality , but it is not so with those that are glorified . again , he was so immortall , as that he had a naturall body , which did need nourishment ; but it is not so with those that are made happy . it is true , we have heretofore concluded , that adam in his first estate was naturally immortall , for if death had been naturall , god had been the authour of death , and man would not have abhorred it . neither did christ dye simply because he was a man , but because he was a man made for us , who ought to dye because of our sin . indeed , because adam did eat and drink , and his body was a naturall body , therefore there was mortality in him in a remote power , but actuall mortality was hindered , by reason of that glorious condition he was placed in ; and therefore not actually to dye , but to be in a mortall state was threatned as a punishment to him of all apostasie from god. use . of instruction . what comfort may be to the godly from christ , though by nature all is lost . who can heare without trembling of this great losse ? righteousnesse and immortality lost , god and his image lost . if thou lookest upon thy proud earthly sinfull heart , thou mayest say , it was not thus from the beginning : if upon thy sick , weak , and mortall body , it was not thus from the beginning . now here is no way to keep up the heart , but by looking to christ . though thou hast lost the image of god , yet he is the expresse image of his father . though thou hast not perfect righteousnesse , he hath . whatsoever thy losse and evil be by the first adam , thy gain and good may be by the last adam . admire herein the mysteries of gods grace and love . what may we not expect for temporalls , if needfull , when he is thus gracious in spiritualls ? are riches , subsistence , equall to christ ? use . of exhortation , not to rest in any estate , but that of restauration again . the word ( as you heard ) ephes . . . to gather , doth imply that all mankind is like an house fallen down , lying in its rubbish and ruines . let us not therefore stay in this condition : it 's a condition of sinne , of wrath : oh , much better never to have been born , then to be thus . how happy are all the irrationall creatures in their estate above us , if not repaired by christ ? and know , that to be restored again to this image of god , is a great and rare blessing , few partake of it . holinesse must be as inwardly rooted and settled in thee , as ever sinne and corruption hath soaked into thee . thou didst drink iniquity like water ; doest thou now , as the hart , pant after the water-brooks ? the resurrection of the soul must be in this life . it was sinfull , proud ; but it 's raised an holy , humble soule . lectvre xv. exod. . . and god spake all these words , saying , &c. having handled the law given to adam in innocency , both absolutely as it is a law , and relatively as a covenant ; we now proceed to speak of that law given by god , through the ministery of moses , to the people of israel ; which is the great subject in controversie between the antinomians and us . there were indeed precepts and laws given before moses . hence the learned speak much of noah's precepts . the talmudists say ( as cuneus relates ) that these seven precepts of noah did contain such an exact rule of righteousness , that whosoever did not know them , the israelites were commanded to kill . but because these are impertinent to my scope , i pass them by . and in the handling of this law of moses , i will use my former method , considering the law absolutely in it self , and then relatively as a covenant : for , as god ( you have heard ) hath suffered other errours about the deity of christ , and the trinity , and the grace of god , therefore to break forth , that the truth about them may be more cleared and manifested ; so happily the law will be more extolled in its dignity and excellency then ever , by those opinions which would overthrow it . the text , upon which most of the matter i have to say , shall be grounded , are the words now read unto you , that are an introduction to the law , containing briefly , . the nature of the matter delivered , which is called words ; so deut . ten words : hence it s called the decalogue . now the hebrew word is used not for a word meerly , as we say , one word ; for so the ten commandments are more then ten words : but it signifieth a concise and brief sentence by way of command . hence it s translated sometimes by the septuagint , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , deut. . . and sometimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , psal . . . so in the new testament , that which is called by mark . . the word of god , is by matthew named the commandment of god. so , paul also , gal. . . the whole law is fulfilled in one word , that is , one brief sentence by way of command . . you have the note of universality , all these words , to shew , that nothing may be added to them , or diminished : onely here is a difficulty , for deut. . where these things are repeated again by moses , there some things are transposed , and some words are changed . but this may be answered easily , that the scripture doth frequently use a liberty in changing of words , when it repeateth the same thing , onely it doth not alter the sense . and happily this may be to confute that superstitious opinion of the jews , who are ready to dream of miraculous mysteries in every letter . . there is the efficient cause of this in the hebrew 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . this word is used in the plurall , as some of the learned observe , defectively ; and is to be supplied thus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to denote the excellency of god , as they say the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is used for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for excellentissima fera . by the septuagint its translated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because ( saith a learned man ) they interpreting this for the grecians , and the wise men amongst them attributing the name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to those that are called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , therefore they would use a word , to shew , that he who gave the law , was lord even over all those . now god is here described to be the author of these laws , that so the greater authority may be procured to them . hence all law-givers have endeavoured to perswade the people , that they had their laws from god. . you have the manner of delivering them , god spake them , saying : which is not to be understood , as if god were a body , and had organs of speaking ; but only that he formed a voice in the air . now here ariseth a great difficulty , because of acts . where he that spake to moses on mount sinai is called the angel : this maketh the papists and grotius go upon a dangerous foundation , that god did not immediatly deliver the law , but an angel ; who is therefore called god , and assumes unto himself the name jehovah , because he did represent the person of god. but this is confuted by the learned . i shall not preface any further , but raise this doctrine , that god delivered a law to the people of israel by the hand or ministry of moses . i shall ( god willing ) handle this point doctrinally in all the theological considerations about the law : and , first , you must still remember , that the word law may be used in divers senses ; and , before this or that be asserted of it , you must clear in what sense you speak of the law. not to trouble you again with the several acceptions of the word , which you must have alwaies in your eye , take notice at the present , of what a large or restrained signification the word law is capable of : for we may either take the word law for the whole dispensation and promulgation of the commandments , morall , judiciall , and ceremoniall : or else more strictly , for that part which we call the morall law ; yet with the preface and promises added to it : and in both these respects the law was given as a covenant of grace ( which is to be proved in due time : ) or else most strictly , for that which is meer mandative and preceptive , without any promise at all : and in this sense , most of those assertions which the learned have concerning the difference between the law and the gospel , are to be understood ; for , if you take ( as for the most part they do ) all the precepts and threatnings scattered up & down in the scripture , to be properly the law ; and then all the gracious promises , wheresoever they are , to be the gospel , then it s no marvell if the law have many hard expressions cast upon it . now this shall be handled on purpose in a distinct question by it self , because i see many excellent men peremptory for this difference : but i much question , whether it will hold , or no. . what law this delivered in mount sinai is , and what kindes of laws there are , and why it s called the morall law. it is plain by exod. . & cap. . all the laws that the jews had were then given to moses to deliver unto the people , only that which we call the morall law , had the great preheminency , being twice written by god himself in tables of stone . now the whole body of these laws is , according to the matter and object , divided into morall , ceremoniall , and judiciall . we will not meddle with the queries that may be made about this division . we may , without any danger , receive it , and that law which we are to treat upon is the moral law. and here it must be acknowledged , that the different use of the word morall , hath bred many perplexities ; yea , in whatsoever controversie it hath been used , it hath caused mistakes . the word morall , or morally , is used in the controversie of the sabbath , in the question about converting grace ; in the doctrine of the sacraments , about their efficacy and causality ; and so in this question , about a law , what makes it morall . now in this present doubt , howsoever the word moral beareth no such force in the notation of it , ( it being as much as that which directeth and obligeth about manners , and so applicable even to the judiciall and ceremoniall : and these are in a sense commanded in the moral law , though they be not perpetuall ) as to denote that which is perpetual and alwaies obliging ; yet thus it is meant here , when we speak of a thing moral , as opposite to that , which is binding but for a time . . whether this law repeated by moses be the same with the law of nature implanted in us . and this is taken for granted by many : but certainly there may be given many great differences between them : for , first , if he speak of the law of nature implanted in adam at first , or as now degenerated , and almost defaced in us , whatsoever is by that law injoyned , doth reach unto all , and binde all , though there be no promulgation of such things unto them : but now the moral law in some things that are positive , and determined by the will of god meerly , did not binde all the nations in the world : for , howsoever the command for the sabbath day was perpetuall , yet it did not binde the gentiles , who never heard of that determined time by god : so that there are more things expressed in that , then in the law of nature . besides , in the second place , the moral law given by god doth induce a new obligation from the command of it ; so that though the matter of it , and of the law of nature agree in many things , yet he that breaketh these commandments now , doth sin more hainously then he that is an heathen or pagan ; because by gods command there cometh a further obligation and tye upon him . in the third place , in the morall law is required justifying faith and repentance as is to be proved , when i come to speak of it as a covenant ; which could not be in the law given to adam : so the second commandment requireth the particular worship of god , insomuch that all the ceremoniall law , yea our sacraments are commanded in the second commandment ; it being of a very spirituall and comprehensive nature : so that although the morall law hath many things which are also contained in the law of nature , yet the morall law hath more particulars then can be in that . hence you see the apostle saith , he had not known lust to be sin , had not the law said so , although he had the law of nature to convince him of sin . . why it was now added . the time when it was added appeareth by the . chapter , to wit , when the people of israel were in the wilderness , and had now come to their twelfth station in mount sinai . that reason which philo giveth , because the lawes of god are to be learnt in a wilderness seeing there we cannot be hindred by the multitude , is no waies solid two reasons there may be , why now , and not sooner or later , god gave this law : first , because the people of israel coming out of aegypt , had defiled themselves with their waies : and we see , while they were in their journie in the wilderness , what horrible gross impieties they plunged themselves into : therefore god to restraine their impietie and idolatry , giveth them this law , to repress all that insolency , so rom . and gal. . the law came because of transgressions : hence theophilact observeth the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , it was added , signifieth that the law was not primarily , and for it 's own sake given , as the promises were , but to restrain transgressions then over flowing : but , secondly , i conceive the great and proper reason why god at this time , rather then another , gave the law , was , because now they began to be a great people : they were to enter into canaan , and to set up a common wealth , and therefore god makes them lawes , for he was their king in a speciall manner ; insomuch that all their lawes , even politicall , were divine : and therefore the magistrates could not dispence in their lawes , as now governours may in their lawes of the common-wealth , which are meerly so , because then they should dispensare de jure alieno , which is not lawfull . this therefore was the proper reason , why god at this time set up the whole body of their lawes , because they were now to grow into a common-wealth . hence josephus calls the common-wealth of the jews 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a place where god was the governour . . whether this law was not before in the church of god. and certainly , he that should think this law was not in the church of god before moses his administration of it , should gratly erre . murder was a sin before , as appeareth by gods words to cain ; yea the very anger it selfe that goeth before murder : so all the outward worship of god , as when it s said , then began man to call upon the name of the lord ; so that the church of god never was , nor ever shall be without this law. and when we say , the law was , before moses , i do not meane only , that it was written in the hearts of men , but it was publikely preached in the ministry that the church did then enjoy , as appeareth by noah's preaching to the old world , and gods striving with men then by his word so that we may say , the decalogue is adams , and abrahams , and noahs , and christs , and the apostles , as well as of moses . indeed there was speciall reason , as you heard , why at that time , there should be a speciall promulgation of it , and a solemn repetition ; but yet the law did perpetually sound in the church , ever since it was a church . and this consideration will make much to set forth the excellency of it , it being a perpetuall meanes and instrument which god hath used in his church for information of duty , conviction of sin , and exhortation to all holiness : so that men who speak against the use of the law , and the preaching of it , do oppose the universall way of the church of god in the old and new testament . . the end why god gave this law to them . i spake before of the end , why he gave it then ; now i speak of the finall cause in generall : and here i shall not speak of it in reference to christ , or justification , ( that is to be thought on when we handle it as a covenant ) but only as it was an absolute rule or law . and here it will be a great errour , to think the promulgation of it had but one end , for there were many ends : . because much corruption had now seised upon mankind , and the people of israel had lived long without the publick worship and service of god , it was necessary to have this law enioyned them , that they might see far more purity and holiness required of them , then otherwise they would be perswaded of . . by this meanes they would come to know sin , as the apostle speakes , and so be deeply humbled in themselvs : the law of god being a cleare light to manifest those inward heart-sins and soul-lusts that crawl in us as so many toads , and serpents , which we could never discover before . . hereby was shadowed forth the excellent and holy nature of god , as also what purity was accepted by him , and how we should be holy , as he himselfe is holy ; for the law is holy as god is holy : it s nothing but an expression & draught of that great purity which is in his nature ; insomuch that it s accounted the great wisedome of that people of israel to have such lawes ; and the very nations themselves should admire at it . . the great goodness and favour of god in delivering this law to them . and this comes fitly in the next place to consider of , that it was an infinite mercy of god to that people to give them this law . hence deut. . and in other places , how often doth god press them with this love of his , in giving them those commandments ? and that it was not for their sakes , or because of any merit in them , but because he loved them . so david , psal . . he hath not done so to other nations . hosea also aggravates this mercy hos . . . i have written unto him the great things of my law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 amplitudines legis meae , where the prophet makes the law a precious gift deposited in the jews hands . and to this may be referred all the benifits that the psalmist and prophets do make to come by the law of god : insomuch that it is a very great ingratitude and unthankfulness unto god , when people cry down the law , and the preaching of it . that which god speaks of as a great mercy to a people , they do reject . nor , because that god hath vouchsafed greater expressions of his love to us in these latter dayes , therefore may those former mercies be forgotten by us , seeing the law doth belong unto us for those ends it was given to the jews now under the gospel , ( as is to be proved ) as much as unto them . and therefore you cannot reade one commandment in the spirituall explication of it , ( for the law is spirituall ) but you have cause to bless god , saying , lord , what are we , that thy will should be so clearly , and purely manifested to us , above what it is to heathens , yea , and papists , with many others ? therefore , beloved , it is not enough for you to be no antinomian , but you are to bless god , and praise him for it , that it s read , and opened in our congregations . . the perfection of this law , containing a perfect rule of all things belonging to god or man. and here againe i shall not speak of it as a covenant , but meerly as its a rule of obedience . and thus , though it be short , yet it s so perfect , that it containeth all that is to be done , or omitted by us . insomuch that all the prophets , and apostles do but adde the explication of the law , if it be not taken in too strict a sense . hence is that commandment of not adding to it , or detracting from it . and in what sense the apostle speakes against it , calling it the killing letter , & the ministration of death working wrath , is to be shewed hereafter . when our saviour , mat. . gave those severall precepts , he did not adde them as new unto the morall law , but did vindicate that from the corrupt glosses and interpretations of the pharisees , as is to be proved . indeed it may seem hard to say that christ , and justifying faith , & the doctrine of the trinity , is included in this promulgation of the law ; but it is to be proved , that all these were then comprehended in the administration of it , though more obscurely . nor wil this be to confound the law and the gospel , as some may think . this law therefore and rule of life which god gave the people of israel , and to all us christians in them , is so perfect and full , that there is nothing necessary to the duty and worship of god , which is not here commanded ; nor no sin to be avoided , which is not here forbidden . and this made peter martyr ( as you heard ) compare it to the ten predicaments . use . of admonition , to take heed how we vilifie or contemne this law of god , either doctrinally , or practically . doctrinally , so the marcionites , and the manichees , and basilides ; whereof some have said , it was carnall , yea that it was from . devil , and that it was given to the jews for their destruction because it 's said to work wrath , and to be the instrument of death and those opinions and expressions of the antinomians about it are very dangerous . what , shall we revile that which is gods great mercy to a people ? because the jews and papists do abuse the law , and the works of it to justification , shall it not therefore have its proper place and dignity ? how sacred are the laws of a common-wealth , which yet are made by men ? but this is by the wise god. take heed therefore of such phrases , an old-testament-spirit , and , his sermon is nothing but an explication of the law : for it ought much to rejoyce thee , to hear that pure and excellent image of gods holiness opened . how mayest thou delight to have that purity enjoyned , which will make thee loath thy self , prize christ and grace more , and be a quick goad to all holiness ? and if you say , here is nothing of christ all this while : i answer that is false , as is to be proved , if the law be not taken very strictly : and besides , the law and the gospel are not to be severed , but they mutually put a fresh relish and taste upon each other . and shall no mercy be esteemed , but what is the gospel ? thou art thankfull for temporall mercies , and yet they are not the gospel ; but this is a spiritual mercy . lectvre xvi . exod. . . god spake these words , saying , &c. i have already begun the discourse about the morall law ; and shall at this time consider those historical passages , which we meet with in the promulgation of it ; that so the excellency of it may hereby be more known ; for , whosoever shall diligently observe all the circumstances of the history of the law , he shall finde , that god did put glory upon it : and howsoever the apostle , hebr. . and corinth . . doth prefer the gospel above this ministration of moses ; yet absolutely in it self , it was greatly honoured by god. in the general therefore , you may take notice , that therefore did god so solemnly , and with great majesty give the law , that so the greater authority may thereby be procured to it . hence it is related of many heathens , that they have feigned some familiarity with their gods , when they made their laws , that so the people might with greater awe and reverence receive them : thus numa feigned his discourse with the goddess aegaeria for his laws ; and it 's related of pythagoras , that he had a tamed eagle , which he would cause to come flying to him , to make people think his sentences were delivered from heaven to him . if laws of men might well be called by demosthenes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . how much rather this law of god ? it 's but a conceit of prospers , that judaei were so called , because they received jus dei , the law of god. it s further also to be observed in the general , that god hath alwaies had apparitions sutable to the matter in hand . thus he appeared in a burning bush to moses , like an armed man to josua ; and with all signs of majesty , and a great god , being to deliver laws to the people that they might see how potent he was to be avenged for every breach . again , in the next place , take also this generall observation , that although the judiciall and ceremoniall lawes were given at the same time with the morall law , yet there is a difference between them . and this is to be taken notice of , lest any should think , what will this discourse make for the honour of the morall law , more then the other lawes ? it 's true , these three kinds of lawes agree in the common efficient cause , which was god ; and in the minister , or mediator , which was moses ; in the subject , which was the people of israel ; and all and every one of them ; as also in the common effects , of binding and obliging them to obedience , and to punish the bold offenders against them . but herein the morall law is preheminent : . in that it is a foundation of the other lawes , and they are reduceable to it . . this was to abide alwaies , not the other . . this was immediately writen by god , and commanded to be kept in the ark , which the other were not . lastly observe , these two things in the generall , about the time of the delivery of the law : first , god did not give them his law , till he had deeply humbled them ; and it may be now , christ will not settle his ordinance with us , till he hath brought us low : and secondly , before they come unto the land of promise , god setleth his worship and lawes . when he hath done this , then he bids them , deut. . . goe towards canaan . this sheweth , a people cannot have canaan , till the things of god be setled . but we come to the remarkable parts of the history of the promulgation of this law ; and first , you may consider the great and dilligent preparation of the people to heare it . exod. . for , first , they were to sanctifie themselves , and to wash their clothes . this indeed , was peculiar unto those times , yet god did hereby require the cleansing & sanctification of their hearts . the superstitious imitating of this was among the gentiles , who used to wash , that they may goe to sacrifice , plaut in aulul . act , . scen . . yea , this superstition was brought into the church , chrysost . hom. . in mat. we see ( saith he ) this custome confirmed in many churches , that many study diligently how they may come to church with their hands washt and white garments : and , tert. cap. . de orat. hae sunt verae mundiciae , non quas plerique superstitiosè curant , ad omnem orationem etiam cum lavacro totius corporis aquam sumentes this is true cleannes , and not that , which many superstiously regard , washing their whole body in water , when they goe to pray . but this by the way , god did hereby fignifie what purity and holiness of heart should be in them to receive his law. the second thing requisite was , to set bounds , so that none might touch the mount. it 's a violent perverting of scripture which the popish canons have , applying this a llegorically to a lay-man , if he reade , or medle with the scripture ; whereas not only a beast , but not the priests themselves should touch this mountain : and hereby god would have men keep within their bounds , and not to be too curious . the doctrine of the trinity , of predestination , are such a mountain , that a man must keep at the bottome of it , and not climb up . the third thing was , not to come at their wives . some do refer this to those women that were legally polluted ; but it may be well understood of their conjugall abstinency , not as a thing sinfull , but that hereby god would have them put off not only affections to all sinnes , but all lawfull things : so that this preparation for three dayes , doth make much for the excellency of the law , and sheweth how spirituall we should be in the receiving of it , . the declaration of majesty and greatness upon the delivery of it : for , although it must be granted , that this was an accommodated way to the law , that did convince of sinne , and terrisie , ( hence the apostle , heb. . , , &c. preferreth the ministration of the gospel above it ) yet this also was a true cause , why thundrings and terrours did accompany the promulgation of it , that so the people might be raised up to fear , and reverence of the law-giver . hence rev. . . god is described in his majestie sitting upon his throne , and lightnings with thunders proceeding from him . now it 's very probable , that these were raised by god in an extraordinary manner , to overcome the heart of the stoutest . and in this nature we are still to suppose the law preached to us ; for , howsoever all that terrour be past , yet the effect of it ought to abide upon every man , so far forth as corruption abideth in him : for , what man is there , whose pride , lukewarmness , or any sinfull corruption needs not this awakening ? it 's said exod. . . god descended upon the mount sinai in a smoak of fire , and a cloud : all was to shew the incomprehensible majesty of god , as also his terrour to wicked men ; and in this respect the dispensation of the gospel was of greater sweetness . hence gal . . the apostle makes this mount sinai to be agar , generating to bondage . this i say , must be granted , if you speake comparatively with gospel-dispensations ; but yet the psalmist speakes of this absolutely in it selfe , as a great mercy , psal , . . out of sion , the perfection of beauty , god hath shined ; and the fire about him did signifie his glorious splendour , as also his power to overthrow his enemies , and consume them : so psal . all the earth is bid to rejoyce at the lords reigning , which is described by his solemne giving of the law , which the church is to rejoyce at ; yea , ver . . it is applyed to christ . heb. . though the apostle followes the septuagint : so that if you take these things absolutely , they are lookt upon as mercies ; yea , and applyed to christ . and it is made a wonderfull mercy to them that god did thus familiarly reveale himselfe to them , deut. . . and deut. . . yea learned men think , that christ , the son of god. did in the shape of a man deliver this law to moses , and speake familiarly with him ; but especially see deut. . . where the word loving signifies imbracing by way of protection in the bosome . the gifts of the holy ghost were given with fiery tongues , and a mighty rushing wind , so that the gospel is fire , as well as the law. . gods immediate writing of these with his own fingers in tables of stone , exod. . . which honour was not vouchsafed to the other lawes . now by the finger of god , howsoever some of the fathers have understood the holy ghost ; and , because the finger is of the same essence with the body , infer the holy ghost to be of the same nature with god : yet this conceit is not solid : although luke . . that wich is called the finger of god , matth. . . called the spirit of god : we must therefore understand it of the power and operation of god , who caused those words to be written there . the matter upon which this is writen , is said to be tables of stone . the rabbins conceit , saying , that because it is said of stone in the singular number , that therefore it was but one table , which sometimes did appeare as one , sometimes as two , is not worth the confuting . that which is here to be considered , and makes much to the dignity of the law , is , that it was written by god , upon tables of stone , to shew the perpetuity , and stability of it . and howsoever this of it selfe be not a demonstrative argument to establish the perpetuity of the law against any antinomian , yet it may prevaile with any reasonable man. hence law-givers , that have laboured the stability of their lawes , caused them to be ingraven in brass , or a marble : so pliny , lib ● . ca. . speakes of brassie tables ad perpetuitatem monumentorum : & plato , as rhodoginus reports , lib. . cap. . thought that lawes should be written in tabulis cupressinis , quod futuras putabat aeterniores , quàm aereas . it is true , there is also a mysticall signification , which is not to be rejected , because the apostle alludes to it that hereby was signified the hardness of the jews heart , which could not easily receive that impression of the law. hence the excellency of the gospel doth appear , in that it is by grace wrought in the hearts of men . but yet this is not so to be understood , as if god did not in the old testament , even then write his law in the hearts of men . therefore that promise of the gospel mentioned by jeremiah is not to be understood exclusively , as if god did not at all write his law in their hearts , but comparatively . . the sad breaking of this law by the people of israel . as the law given by god to adam was immediately broken ; so this law given in such a powerfull manner to keep the israelites in an holy fear , and reverence ; yet how soon was it forgotten by them : for , upon moses his delay , they presently fell into idolatry . some think , they thought moses was dead , and therefore they desired some visible god among them , as the egyptians had : and because they worshiped apis , an oxe , hence they made a calfe , wherein their wickedness was exceeding great ( though , against the truth , some rabbins excuse them from idolatry ) because they did immediately upon the promulgation of the law , when they had so solemnly promised obedience , fall into this sin ; and not only so , but worshipped it , and gave the glory of all the benefits they injoyed unto this : not as if they were so simple , as to think this a god , but to worship the true god by this . and this confuteth all those distinctions that idolaters use , especially papists , about their false worship . we are not to follow our own hearts , but the word . as the childe in the womb liveth by fetching nourishment by the navell only from the mother , so doth the church by fetching instruction and direction from christ . . the time of moses his abode on the mount. this also is observable in the story ; for hereby god did not only procure great ground of authority for moses among the people , but also unto the law : and therefore , as some compare the time of giving the law , with the effusion of the gifts of the holy ghost in the gospel , making the former to be the fiftieth day of their egresse out of egypt , called pentecost : so at the same time the holy ghost was given to the church : thus also they compare moses forty dayes upon the mount , with our saviours forty days in the wilderness , when he was tempted . it was certainly a miraculous preservation of moses , that he should be there so long , and neither eat , nor drink . but this example of moses , with that of our saviours , is very vainly , and unwarrantably brought for fasting in lent. . moses his zeal against this their idolatry , and breaking of the tables . when moses came down , he saw how the people had transgressed the law of god , which so moved him , that , in his zeal , he brake the tables that were first made . this certainly was by the immediate ordering of god , to signifie , that this could not be a way of justification for them : and indeed , to hold that the law can justifie , is so great an errour , that we are all antinomians in this sense . one hath said , that the law was like the tree of knowledge of good and evil , but the gospel that is like the tree of life : yet this must be rightly understood ; for god useth the law , as he doth his whole world , to beget and increase the life of grace in us , only this life is not that which can justifie us : and in this effect of the law , to increase life , david doth often commend it . now some have attributed this to moses , as a sin , accounting it his impatiency and rashness to break the tables . they acknowledge it to be a good zeal for the main ; onely they think here was some strange fire , as well as the fire of the sanctuary . but although this excandescency of moses was sudden , yet i see not , why it should be attributed as rashness in him to break the tables ; for he had brought those tables as a sign of their covenant stricken with god : but now , they having broken it by their idolatry , it was very just to have the tables broken in the eyes of the people , that so they might see how god was alienated from them : so that we think , he did it not with any sinfull perturbation of minde , but an holy zeal : god hereby also ordering , that they should understand , god would enter into a new covenant with them ; which made austin cry out , o ira prophetica , & animus non perturbatus , sed illuminatus ! o anger propheticall , and a minde not disturbed , but inlightned . . moses his petition unto god for his presence , and the manifestation of gods glory unto him , with gods answer . howsoever this doth not immediatly concern the promulgation of the law , yet , because it 's inserted before the reparation of the tables again , and maketh for the honour which god put upon moses , while he was setling the laws of israel , we will give a touch at it . cap. . ver . . moses desireth gods presence to be with him in conducting of the people of israel ; and , as a sign , whereby he might be confirmed of his presence , he desireth to see gods glory . it is hard to say , what was moses his petition in this thing . i cannot be of their minde , who make this onely a vision , and nothing really acted : nor of theirs , who think that moses desired to see the essence of god. i will not dispute that question , whether the bodily eyes of a man may be lifted up to that perfection , as to see god , who is a spirit . nor can i think that they attain to the truth , who think by the glory of god , to be meant the reasons and grounds of gods mercies , and in particular , his providence to the israelites and by the back-parts , which moses was allowed to see , the effects themselves of his mercy and providence , as if god intended to shew moses his wonderful effects , but not the reasons of them . nor lastly , that moses desired to see the humanity of christ in glory , like that vision of transfiguration : therefore i judge this most literall , that although it 's said , ver . . that moses spake with god face to face , which argueth familiarity , yet for all that , even then god was clothed as it were in a cloud interposing it self . now moses he desireth , that god would manifest himself in a more sensible , visible , and glorious way of an outward shape ; even as before he would have known gods name . now god in part answereth him , and in part denieth him , shewing such a glorious object , that yet he was not able to see , but where the light was lesse intense . . the reparation of the tables again . and here is some difference between the former and the later tables : the former , god provided both for the shape and the writing , as you heard ; but here the forming or polishing of the table is moses his work , and the writing is gods. the first is said expresly , exod. . . go , hew thee two tables of stone like the former , and i will write upon these tables . here is the second expresly . so deut. . , , . so that the writing of the law on the second tables , was as immediately gods work , as the former ; but not the polishing or preparing of the tables . onely there is one place of scripture , which troubleth the learned much , that seemeth to oppose this , and to make the writing upon the second table to be immediately the act of moses , and mediately onely of god , because he commanded and directed moses to do so . the place that seemeth to oppose this , is exod. . , . i confesse , if we look into the coherence of these texts , we shall finde some things difficult . but two things will help to clear it : first , that the things which moses did write , were not the ten commandments , but the severall precepts , that were by way of explication ; and then the second thing is , that whereas the . verse seemeth to speak of the same subject , moses ; yet the two former predicates are to be attributed to him . viz. his staying with god fourty dayes and nights , and his neither eating nor drinking all that while : then the third predicate is to be given to god , viz. writing upon the ten commandments ; for it 's ordinary with the hebrews , to refer the relative to some remote subject , and not the neerest ; and this may untie that knot . there is this remarkable , that though the former tables were broken , yet now god enters into a covenant of grace with them , as appeareth by proclaiming himself long-suffering , and gracious ; but yet god causeth the ten commandments to be written again for them , implying , that these may very well stand with a covenant of grace , which opposeth the antinomian . . the extraordinary glory that was upon moses . this is a considerable passage ; for the apostle speaking of this , cor. . doth acknowledge the ministration of the law to have a great deal of glory ; but yet such as was to vanish . where , by the way , take notice against the antinomian , that the apostle doth not there speak of the law absolutely in it self , as if that were to be done away ; but , the particular administration and dispensation of it , that was no more to continue , which all grant . now the antinomian confounds the law , with the administration of it . this glory and shining that was upon moses , was ( as it may seem probable ) communicated unto him , when he beheld the glory of god. how long it continued , is not certain : that hath no probability of the rabbins , who hold , it did continue all his life time . the vulgar translation makes it horned , cornuta ; hence the painters pictured moses with horns : but the word that signifieth an horne , is also for to glitter , and shine : as also those rayes of light might be cast forth from moses his face like horns . this was so glorious , that he was forced to put a vail upon his face , when he spake to the people . now the text saith , moses did not know his face shone . it 's an excellent thing , when god puts a great deal of glory upon a man , and he doth not know it . gregory applyeth this of moses to ministers , that , as moses , because the people could not endure the glorious light of his face , put a vail upon it , that so the people might converse with him : thus the minister , whose parts and scholarship is far above the people , should put on a vail , by condescending to the people . but the apostle maketh another mysticall meaning , wherein the hard things shall in time ( god willing ) be opened . . the custody and preservation of the law in the ark. and this shall be the last observation , that will tend to the excellency of the law. as this one was witten by the immediate hand of god , so was it only commanded to be preserved in the ark. now here is a great dispute in matter of history : for kin. . . it's expresly said , that in the ark there was nothing save the tables of stone ; but hebr. . . there is joyned aarons rod , and the pot of manna . those that for this respect would reject the epistle to the hebrews , as of no authority , are too bold and insolent . some think we cannot reconcile them ; yet the scripture is true , onely our understandings are weak . some think , that at first god commanded those two to be laid with the tables of the covenant ; but when the temple was built by solomon , then all were laid aside by themselves : and therefore , say they , that the history of the kings speaketh of it as a new thing . some , as piscator , make in to be as much as coram , before or hard by : and so they say , the pot and rod were by the ark. but i shall close with that of junius , who observes , that the relative is in the feminine , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and so doth not relate to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ark , the word immediatly going before ; but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , tabernacle , in which tabernacle . and this is frequent in the scripture to do so . and this , though it may be capable of some objection , yet doth excellently reconcile the truth of the history with paul. now how long these tables of stone were kept , and what became of them at last , we have no certainty . this proveth the great glory god did put upon the law above any thing else , which i intended in all these historicall observations . vse . of instruction . how willing god was to put marks of glory and perpetuity upon the law ; and therefore we are to take heed of disparaging it . for , how necessary is it to have this law promulged , if it were possible , as terribly in our congregations , as it was on mount sinai ? this would make the very antinomians finde the power of the law , and be afraid to reject it . certainly , as the physitian doth not purge the bodies till he hath made them fluid , and prepared ; so may not the ministers of christ apply grace , and the promises thereof , to men of epicurean or pharisaicall spirits , till they be humbled by the discovery of sin , which is made by the law. and i doubt it may fall out with an antinomian , who accounts sin nothing in the beleever , because of justification , as with one dionysius a stoick ( as i take it ) who held , that pain was nothing ; but , being once sick , and tortured with the stone in the kidnies , cried out , that all that he had writ about pain was false ; for now he found it was something : so it may fall out that a man , who hath writ , and preached , that god seeth no sin in a believer , may sometime or other be so awed and troubled by god , that he shall cry out , all that he preached about this , he now findes to be false . therefore let those that have disparaged , or despised it , see their sin , and give it its due dignity . they report of stesichorus , that when in some words he had disparaged helena's beauty , he was struck blinde ; but afterwards when he praised her again , he obtained the use of seeing . it may be , because thou hast not set forth the due excellency of the law , god hath taken away thy eye-sight , not to see the beauty of it ; but begin with david to set forth the excellent benefits of it , and then thou mayest see more glory in it then ever . an additionall lectvre . gal. . . and it was ordained by angels in the hand of a mediator . the service and ministery of the angels about the promulgation of the law , will much make to the honour of the law ; for we never read of laws enacted by so sacred and august a senate as the moral law was , where jesus christ accompanied with thousands of angels , gave these precepts to the people of israel : we read of three solemn services of the angels ; the first was , their singing at the creation of the world , job . . for by the morning stars , are meant the angels : the second was at christs birth , when they cried , glory be to god , &c. and the third may be this in the promulgation of the law. for the unfolding of the words , know that the apostle in the former part of the chapter , brings many arguments to prove , that we are not justified by the law , and that the promise and eternall life could not come by it now lest this discourse should seem derogatory to the law , he doth here , as in other places upon the like occasion , make an objection : to what use then is the law and v. . is that law against the promises ? which he answers with great indignation , god forbid ; and to the former objection , he answereth in my text , showing the end of the law , that is , not the end of the law absolutely in it self , but of the delivery at that time ; it was added because of transgressions , to convince the proud and hypocriticall iews of their wickedness , and thereby to seal that righteousness of christ . he doth not here take all the manifold uses of the law , but that which was accomodate to his present scope . this use he doth illustrate from the circumstance of duration ; it was to be till the coming of christ , whereby you see , that the apostle meaneth not the morall law , as a rule of life ( for that is eternall as is to be shewed ) but the regiment , or mosaicall administrations in the ceremoniall part thereof : and there is nothing more ordinary with paul , then to take the law synecdochically , for one part of the law ; which rule if observed , would antidote against antinomianisme : in the next place he commends this law by a seasonable , and fit digression from a two-fold ministerial cause , one proxime and immediate , the angels ; the other remote , by the hand of a mediator : some indeed think this is added for the debasement of the law , and to difference it from the gospel , because the law was given by angels , but the gospel immediatly by christ : but i rather take it for a commendation , lest he should have been thought to have condemned it , for you know his adversaries charged this upon him , act. . . that he spake against the law : now though the apostle doth extoll the gospel infinitely above the law , yet he always gives the law , those titles of commendation which are due to it ; now in what sense the law is said to be ordained by angels , is hard to say . that you may the better understand this place , compare with it , act. . v. . who have received the law by the disposition of angels heb. . . if the word spoken by angels was stedfast , &c. deut. . . the lord came from sinai with ten thousands of saints , from his right hand went a fiery law for them : though this seemeth to refer to the people of israel , rather then the angels : but the septuagint interpret it of angels : in the greek we have 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which is as much as command , sanction , and ordaining , as rom. . . the ordinance of god ; so then the sence of the places put together amounts to thus much , that iesus christ , act . . who is the angel that spake to moses in the mount , and the same which appeared to him in the bush , ver . being accompanied with thousands of angels , did from the midst of them , give moses this law , and jesus christ is here called the angel , because of his outward apparition like one . the sanctuary did express this giving of the law ; for their god sate between the cherubims , and from the midst of them uttered his oracles , for moses was commanded to build the tabernacie , according to the pattern as he saw in the mount , and that is the meaning of the psal . . . the chariots of god are twenty thousand angels , the lord is in the mi●st of them , sina● is in ●he holy place : so a learned man , deiu , interpreteth it ; that is , god doth in the sanctuary from the cherubims , deliver his oracles , as he did the law on mount sinai from between angels , and thus you have this fully explained . in the next place , you have the remote cause , by the hand of a mediator . some understand this of moses , that he was the mediator in giving the law between god and the iews , and so that text , deut. . . where moses is said to stand between the lord and them , may seem to confirm this interpretation ; and moses indeed may be said to be a mediator typically , as the sacrifices were types of christs blood , and as he is called , act. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a redeemer , though beza , and our english bible renders it a deliverer . but many interpreters understand it of christ , that he was the mediator in the law , and indeed the words following seem to approve of this ; for saith the apostle , a mediator is not a mediator of one , that is , of those that are one in consent , and accord , but of those that dissent ; now moses could not be truly and really a mediator between god , and the people of israel , when god was angry with them for their sins . besides , the law , as is to be shewed , is a covenant of grace , and christ onely can be the mediator in such a covenant by way of office , because he only is medius in his nature . beza indeed brings arguments against this interpretation , but they seem not strong enough to remove this sense given , neither doth this phrase , by the hand ( which is an hebraisme ) denote alwaies ministery and inferiority , but sometimes power and strength , but more of this in the explication of the doctrine . obser . it was a great honour put upon the law , in that it was delivered by christ , accompanied with thousands of angels : there was never any such glorious senate , or parliament , as this assembly was , wherein the law w●● enacted , iesus christ himself being the speaker : and by how much the m●●● glory god put upon it , the greater is the sin of those doctrines , which do d●rogate from it . indeed though christ gave the law , yet the apostle make the preheminency of the gospel far above it , because christ gave the law onely in the form of an angel , but he gave the gospel when made man , whereby was manifested the glory not of angels , but of the onely begotten son of god. how carefull then should men be , lest they offend , or transgress that law , which hath such sacred authority . it is a wonder to see how men are afraid to break mans law , which yet cannot damn , but tremble not at all , in the offending of that law-giver , who is only able to save , or destroy . for the opening of this consider : first , that iesus christ is the angel that gave this law , as the chief captain of all those angels that did accompany him : for act. . . it is the same that appeared to moses in the bush , god the father hath committed the whole government and guidance of the redemption of that people of israel into the hands of christ : hence isa . . . . he is called the angel of the covenant , because he made that covenant of the law , with his people on mount sinai : this is the angel , that exod. . . god said he would send before them to drive out the nations of the land , and v . there he is called the face of god , or his presence which should go before them , and you have a notable place , exod. . . i will send an angel before thee , to keep thee in the way , and to bring thee into the place , which i have prepared : beware of him , provoke him not , for he will not pardon your transgressions , for my name is in him : by this it is clear , that it was iesus christ who was subservient to the father , in this whole work of redemption out of aegypt . grotius in the explication of the decalogue judgeth it a grievous errour , to hold that the second person in the trinity was the angel who gave this law , and indeed all the socinians deny this , because they say , christ had no subsistency before his incarnation : some papists also think it to be a created angel ; but he must needs be god , because this angel beginneth thus in the promulgation of the law , i am the lord thy god , which brought thee out of the land of aegypt . neither wil that serve for an answer , which grotius saith , that the angel cals himself the god that brought them out of aegypt , because he is an embassador , and speaks in the name of the lord : for were not the prophets gods embassadors , yet their language was , thus saith the lord , they never appropriated the name of iehovah to themselves , whereas this angel is called iehovah , and cor. . . the iews are said to tempt christ , because he was the angel that did deliver them by moses . it is disputed , whether , when any angel appeared who was also god , that it was also the son of god ; so that in the old testament , the father , and the holy ghost never appeared , but the son only ; austin thought it a question worth the deciding , when he spent a great part of his second book of the trinity in handling of it . many of the ancient fathers thought that it was the son onely that appeared , so that all the apparitions which were to adam , to abraham , to moses ; the god that spake then , they understand to be the son , and this was done they say , as a preludium to his incarnation : but some of those ancients give a dangerous , and false reason , which was , because they held , the father only was invisible , and so apply unto the father only that text , no man hath seen god at any time , so that they thought the son might be seen , but not the father , which passages , the arrians did greedily catch at afterwards . but this is certain , the second person is no more visible , or mutable then the first ; only it may be doubted , whether all those administrations and apparitions which were by god in the old testament , were not by the second person : indeed , in the new testament , that voice from heaven , this is my welbelou son , must needs be from the father immediatly : it hath been very hard to know when the angel that appeared hath been a created one , or increated , the son of god. tostatus gives this rule , when the things communicated in scripture , as done by an angel , are of small consequence or belonging to one man , or a few men , then it is a created angel ; but if they be matters of great concernment , or belonging to many people , then it is by an increated angel ; he enumerates many examples , which are not to my purpose , neither may we be curious in determining of the former question . let the use of this be to take heed , how we cry down this law , which god hath so honoured , either by doctrines , or practises . we may live down the law , and we may preach down the law , both which are a reproach to it ; and the law is of such a perpetuall , immutable obligation , that the very being of a sin is in this , that it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a transgression of the law , so that if there be no obligatory power of the law , there can be no sin . if the heathen thought politicall laws , were the wals of a city , and it were no advantage to have fortified wals , and prostrated laws ; how much more is this true of gods commandments : those three things which are required in a law giver , authority , wisdom , and holiness , were transcendently in god , therefore every sin hath disobedience in it , because it is against authority ; folly in it , because it 's against wisdom ; and injustice in it , because against righteousness . in the next place , it 's worth the observing how paul in this place , and so in his other epistles is still carefull so to bound the doctrine of the law and the gospel , so as neither may incroach upon each other , from whence floweth this doctrine . that the law ought so to be preached , as that it should not obscure the gospel , and the gospel so commended , as that there may be no destruction to the law. this was pauls method in all his epistles , which he diligently observed : indeed , it hath been very hard so to give both their due , that either the preacher , or the hearer , hath not thereby been inclined to make one prejudiciall to the other : not but that the gospel is to be preferred , and that in divers respects , but when it is so extolled that the law is made useless , and unprofitable , this is to go beyond lawfull limits ; and how difficult it hath been to hit the mark here , appeareth in that the iews , papists , arminians , socinians , and generally all heretiques have advanced the law , to the eclipsing of the gospel , and there have been few who have extolled the gospel to the prejudice of the law. to proceed therefore regularly , we will shew when the law is preached prejudicially to the gospel , and when the gospel to the law. in the first place , the law is then stretched too far , when the works of it are pressed to justification , whether these works be the fruits of grace , or antecedaneous to grace , it is not much difference to this point ; and this is that dangerous doctrine of the law , which the apostle in his epistle , doth so vehemently withstand , and for which , he is not afraid to charge the teachers thereof , with apostacy from christ , and such who make christ , and all his sufferings in vain . and this is indeed to be a legall preacher , insomuch that it is an high calumny to charge protestant preachers , with the odious accusation of legall preachers ; for he is not a legall preacher in the scripture sence , which presseth the duty and works of the law but that urgeth them for justification , and that righteousness which we must rely upon before the tribunall of god : and thou mayst justly fear it is thy unsanctified & corrupt heart , which makes thee averss from the law in the former sence . . the law is used derogatory to the gospel , when christ is not indeed excluded from justification , but christ and works are conjoyned together , and this is more sugred poison then the former : now this was the doctrine of those false apostles among the galatians , they did not totally exclude him , but yet they did not make him all in all : but god doth not approve of such unequall yoking . it is equall impiety to preach no christ , or an half and imperfect christ ; and therefore as those were cursed doctrines which take away any of his natures , so also are those which diminish of his sufficiency . there is but one mediator , and as god will not give his glory to another , so neither will christ that of his mediatorship to any other ; so that , as god is jealous of his honour , when men give it to fools , no less is christ , when men give it to the works they do . and this makes the way of justifying faith so difficult , because it is so inbred in mens hearts , to have something of their own , and so unwilling are they to be beholding to christ for all . . then is the law preached prejudicially to the gospel , when it is made of it self instrumental to work grace . it cannot be denied , as is hereafter to be shewn , that the law is used by god to begin and increase grace , but this cometh wholly by christ . it is not of the law it self , that this spirituall vertue is communicated to men . even as when the woman touched the hem of christs garment , it was not efficacy from the hem , but from christ that wrought so wonderfully in her . it is one thing to say grace is given with the preaching of the law , and another thing by the law ; so that the gospel must be acknowledged the onely fountain both of grace justifying , and sanctifying , for as in natural things , if no sun did arise , every creature would lie dead , as it were in its own inability to do any thing there would be no naturall life , or growth ; so if the son of righteousness do not arise with healing , no law , or ordinance , could ever be beneficiall to us . in the second place , the gospel may be extolled to the ruin of the law ; and that first , when it is said to bring a liberty not only from the damnatory power , but also the obligatory power of it : how well would it be if the antinomists , in all their books and sermons , while they set up grace and the gospel , would make to themselves this objection with paul , do we then make void the law ? god forbid . certainly if you take away the condemning power , and the commanding power of the law , there will not so much remain of it , as did of jezebels corps , when the dogs had gnawn it . therefore stand fast indeed in the liberty of the gospel , but study again , and again , whether that be gospel-liberty , or prophane licence that thou pleadest for : certainly , he that sets up the gospel in a scripture way , and not a fancy-way , will go no further then the bounds of the scripture ; do not use gospel-grace as a cloak for thy more secure and loose walking . i tell thee , there is a great danger in those expressions , i have had enough of the law ; the time was , i dared not omit time of prayer : i was strict on the sabbath day , and in all family duties , but now i understand my liberty better . oh , know this is a gospel of thy own making , free-grace of thy own minting . i deny not , but that the people of god may by the devil be kept among the tombs , as that demoniack was in sad thoughts , and slavish fears , which are opposite to the promise : i grant also , that a minister may as unseasonably press the law upon some humbled christians , as if the samaritan had taken salt instead of oil , and poured it into the wounds of that man of jericho . but for all this , the unskilfulness of the physitian , may not derogate from the medicine ; and as there is a time , when the law may be unseasonably preached , so also there may be a time , when the promises should not be prest . . then is the gospel , or grace set up contrary to the law , when christians are wholly taken off from humiliation for sin , or from the threatnings that are in the law. what a dangerous expression is that of an antinomian , that the law hath no more to do with a believer , then the law of spain , or france with an englishman ; there is nothing more ordinary , even in the new-testament , then to awaken believers with sad , and severe threatenings . take heed therefore , lest that condition , which thou so blessest thy self in , by gospel light , be not worse , and more dangerous , then that wherein thou groanedst under the law. i speak not this , as if the people of god ought not to seek for a spirit of adoption , and to strive for an evangelicall temper , which certainly is most heavenly , and holy ; but to take heed of temptations , and being drunk with this sweet wine . let therefore from hence , both ministers and people make an harmonious accord of the law and gospel in their practical observations . if on the mount of transfiguration , christ was in glory , and moses in glory , and yet both together without any opposition ; so may the law be a glorious law , and the gospel a glorious gospel in thy use , and to thy apprehension . lectvre xvii . exod. . . and god spake all these words , saying , &c. we have already considered those historical observations , which are in the delivery of the law , and improved them to the dignity and excellency thereof . i now come to the handling of those questions which make much to the clearing of the truths about ithat are now doubted of . and , first of all , it may be demanded , to what purpose is this discourse about the law given by moses ? are we jews ? doth that belong to us ? hath not christ abolished the law ? is not moses , with his ministery , now at an end ? it is therefore worth the inquiry , whether the ten commandments , as given by moses , do belong to us christians , or no ? and in the answering of this question , i will lay down some propositions by way of preface , and then bring arguments for the affirmative . first therefore , though it should be granted , that the morall law , as given by moses , doth not belong to us christians ; yet the doctrine of the antinomians would not hold : for there are some learned and solid divines , as zanchy and rivet ; and many papists , as suarez and medina , which hold the law , as dilivered by moses , not to belong to us , and yet are expresly against antinomists : for they say , that howsoever the law doth not binde under that notion as mosaicall ; yet it binds , because it is confirmed by christ : so that although the first obligation ceaseth , and we have nothing to do with moses now ; yet the second obligation , which cometh by christ , is still upon us . and this is enough to overthrow the antinomian , who pleadeth for the totall abrogation of the law. thus , you see , that if this should be granted , yet the law should be kept up in its full vigour and force as much as if it were continued by moses . but i conceive that this position goeth upon a false ground , as if our saviour , matth. . did there take away the obligation by moses , and put a new sanction upon it , by his own authority ; as if he should have said , the law shall no longer binde you as it is moses his law , but as it is mine . now this seemeth to overthrow the whole scope of our saviour , which is to shew , that he did not come to destroy the law : and therefore he doth not take upon him to be a new law-giver , but an interpreter of the old law by moses . this i intend to handle , god willing , in that question , whether christ hath appointed any new duties , that were not in the law before , only this seemeth to be very cleare , that our saviour there doth but interpret the old law , and vindicate it from corrupt glosses , and not either make a new law , or intend a new confirmation of the old law. secondly , consider in what sense we say , that the law doth binde us in regard of moses ; and , first , this may be understood reduplicatively , as if it did bind , because of moses ; so that whatsoeveer is of moses his ministery doth belong to us : and this is very false , and contrary to the whole current of scripture ; for then the ceremoniall law would also binde us , because à quatenus ad omne valet consequentia ; so that you must not understand it in this sense . secondly , you may understand it thus , that moses as a pen-man of the scripture , writing this down for the church of god , did by this intend good to christians in the new-testament : and this cannot be well denyed by any , that do hold the old-testament doth belong to christians ; for why should not the books of moses belong to us , as well as the books of the prophets ? thirdly , therefore we may understand it thus , that god , when he gave the ten commandements by moses to the people of israel , though they were the present subject to whom he spake ; yet he did intend an obligation by these laws , not only upon the jewes , but also all other nations that should be converted , and come to imbrace their religion : and this is indeed the very proper state of the question , not , whether moses was a minister , or a mediator to the christians as well as the jewes ? ( for that is clearly false ) but , whether , when he delivered the ten commandements , he intended only the jewes , and not all that should be converted hereafter ? it is true , the people of israel were the people to whom this law was immediately promulged ; but yet the question is , whether others , as they came under the promulgation of it , were not bound to receive it as well as jews ? so that we must conceive of moses as receiving the morall law for the church of god perpetually ; but the other lawes in a peculiar and more appropriated way to the jewes : for the church of the jewes may be considered in their proper peculiar way , as wherein most of their ordinances were typicall , and so moses , a typicall mediator ; or , secondly , as an academy , or schoole , or library , wherein the true doctrine about god and his will was preserved , as also the interpretations of this given by the prophets then living ; and in this latter sense , what they did , they did for us , as well as for the jewes . and , that this may be the more cleared to you , you may consider the morall law to binde two wayes : . in regard of the matter , and so whatsoever in it is the law of nature , doth oblige all : and thus , as the law of nature , it did binde the jewes before the promulgation of it upon mount sinai . . or you may consider it secondly , to binde in regard of the preceptive authority , and command , which is put upon it ; for when a law is promulged by a messenger , then there cometh a new obligation upon it : and therefore moses a minister , and servant of god , delivering this law to them , did bring an obligation upon the people . now the question is , whether this obligation was temporary or perpetuall ? i incline to that opinion , which pareus also doth , that it is perpetuall , and so doth bellarmine and vasquez . howsoever rivet seemeth to make no great matter in this question , if so be that we hold the law obligeth in regard of the matter , though we deny it binding in regard of the promulgation of it by moses : howsoever ( i say ) he thinkes it a logomachy and of no great consequence ; yet certainly it is : for , although they professe themselves against the antinomists , and do say , the law still obligeth , because of christs confirmation of it ; yet the antinomians do professe they do not differ here from them , but they say , the law bindeth in regard of the matter , and as it is in the hand of jesus christ . it is true , this expression of theirs is contradicted by them , and necessarily it must be so : for islebius , and the old antinomians , with the latter also , do not only speake against the law as binding by moses ; but the bona opera , the good works , which are the matter of the law , as appeareth in their dangerous positions about good works , which heretofore . i have examined : but , truly , take the antinomian in their former expressions , and i do not yet understand how those orthodox divines differ from them . and therefore if it can be made good without any forcing or constraining the scripture , that god when he gave the ten commandements ( for i speak of the morall law only ) by moses , did intend an obligation perpetuall of the jewes , and all others converted to him , then will the antinomian errour fall more clearly to the ground ; only when i bring my arguments for the affirmative , you must still remember in what sense the question is stated , and that i speak not of the whole latitude of the ministery of moses . and , in the first place , i bring this argument , ( which much prevaileth with me : ) if so be the ceremoniall law , as given by moses , had still obliged christians , though there could be no obligation from the matter , had it not been revoked and abolished ; then the morall law given by moses must still oblige , though it did not binde in respect of the matter , unlesse we can shew where it is repealed . for the further clearing of this , you may consider , that this was the great question , which did so much trouble the church in her infancy , whether gentiles converted were bound to keep up the ceremoniall law ? whether they were bound to circumcise , and to use all those legall purifications ? now how are these questions decided , but thus ? that they were but the shadows , and christ the fulnesse was come , and therefore they were to cease . and thus for the judiciall laws , because they were given to them as a politick body , that polity ceasing , which was the principall , the accessory falls with it ; so that the ceremoniall law , in the judgement of all , had still bound christians , were there not speciall revocations of these commands , and were there not reasons for their expiration from the very nature of them . now no such thing can be affirmed by the morall law ; for the matter of that is perpetuall , and there are no places of scripture that do abrogate it . and , if you say , that the apostle in some places , speaking of the law , seemeth to take in morall , as well as ceremoniall , i answer it thus : the question which was first started up and troubled the church , was meerly about ceremonies , as appeareth act . and their opinion was , that by the usage of this ceremoniall worship they were justified ; either wholly excluding christ , or joyning him together with the ceremoniall law. now it 's true , the apostles , in demolishing this errour , do ex abundanti shew , that not onely the works of the ceremoniall law , but neither of the morall law do justifie ; but that benefit we have by christ onely : therefore the apostles , when they bring in the morall law in the dispute , they do it in respect of justification , not obligation ; for the maine question was , whether the ceremoniall law did still oblige : and their additionall errour was , that if it did oblige , we should still be justified by the performance of those acts ; so that the apostles do not joyn the morall and ceremoniall law in the issue of obligation ( for , though the jewes would have held , they were not justified by them , yet they might not have practised them ) but in regard of justification : and this is the first argument . the second argument is from the scripture , urging the morall law upon gentiles converted , as obliging of them , with the ground and reason of it ; which is , that they were our fathers : so that the jews and christians beleeving are looked upon as one people . now , that the scripture urgeth the morall law upon heathens converted , as a commandment heretofore delivered , is plain when paul writeth to the romans , chap. . , . he telleth them , love is the fulfilling of the law ; and thereupon reckons up the commandments which were given by moses . thus when he writeth to the ephesians , that were not jews , cap. . . he urgeth children to honour their father and mother , because it 's the first commandment with promise . now this was wholly from moses , and could be no other way : and this is further evident by james , chap. . , . in his epistle , which is generall , and so to gentiles converted , as well as to the jews . now mark those two expressions , v. . if you fulfill the royall law , according to the scriptures ; that is , of moses , where the second table containeth our love to our neighbour : and then , v. . he that said , do not commit adultery , said also , do not kill ; where , you see , he makes the argument not in the matter , but in the author who was god by moses to the people of israel . and if you say , why should these commandments reach to them ? i answer , because ( as it is to be shewed in answering the objections against this truth ) the jews and we are looked upon as one people . observe that place , cor. . the apostle , writing to the corinthians , saith , our fathers were all baptized unto moses in the cloud and sea , &c. now how could this be true of the corinthians , but only because since they beleeved , they were looked upon as one ? the third argument is from the obligation upon us to keep the sabbath day : this is a full argument to me , that the morall law given by moses doth binde us christians ; for , supposing that opinion ( which is abundantly proved by the orthodox ) that the sabbath day is perpetuall , and that by vertue of the fourth commandment , we cannot then but gather , that the commandments , as given by moses , do binde us : for here their distinction will not hold of binding ratione materiae , by reason of the matter ; and ratione ministerii , by reason of the ministry : for the seventh day cannot binde from the matter of it , there being nothing in nature , why the seventh , rather then the fifth , should oblige ; but only from the meer command of god for that day : and yet it will not follow , that we are bound to keep the jewish seventh day , as the learned shew in that controversie . now then , those that deny the law as given by moses , must needs conclude , that we keep the sabbath day at the best , but from the grounds of the new-testament , and not from the fourth command at all : and , howsoever it be no argument to build upon , yet all churches have kept the morall law with the preface to it , and have it in their catechismes , as supposing it to belong unto us . and when those prophane opinions , and licentious doctrines came up against the sabbath day ; did not all learned and sound men look upon it as taking away one of the commandments ? therefore that distinction of theirs , the morall law bindes as the law of nature , but not as the law of moses , doth no wayes hold : for the sabbath day cannot be from the law of nature , in regard of the determinate time , but hath its morality and perpetuity from the meere positive commandment of god. the fourth argument from reason , that it is very incongruous to have a temporary obligation upon a perpetuall duty . how probable can it be , that god , delivering the law by moses , should intend a temporary obligation only , when the matter is perpetualy ; as if it had been thus ordered , you shall have no other gods but till moses his time : you shall not murder or commit adultery but till his ministry lasteth , and then that obligation must cease , and a new obligation come upon you . why should we conceive that , when the matter is necessary and perpetuall , god would alter and change the obligations ? none can give a probable reason for any such alteration . indeed , that they should circumcise , or offer sacrifices till moses ministry lasted onely , there is great reason to be given ; & thus austin well answered porphyrius , that objected god was worshipped otherwayes in the old-testament then in the new : that is no matter , saith austin , if that which be worshipped be the true object , though it be worshipped divers waves ( when appointed by him ) no more then when the same thing is pronounced in divers languages . the fifth argument , if the law by moses do not binde us , then the explication of it by the other prophets doth not also belong unto us : for this you must know , that moses in other places doth explane this law ; and davids psalmes , and solomons proverbs , as also the prophesies of the prophets , so farre as they are morall , are nothing but explications of the morall law. now what a wide doore will here be open to overthrow the old-testament ? if i bring that place deut. . . [ set your hearts upon these words which i testifie to you this day , because it is your life , &c. ] to urge christians to keep the commandments of the lord , it may be replyed , what is that to us ? we have nothing to do with moses : the matter , indeed doth belong to us as it is in the new-testament , but as it is there written , so we have nothing to do with it . and by this meanes all our texts , and proofes , which are brought in our sermons may be rejected . and therefore dominicus à soto ( who is among the papists for the negative ) expresly saith , lib. . de just . & jure , quaest . . art. . that no place can be brought out of the books of the old-testament , unto christians , as in respect of the obliging force of it . this is plainly to overthrow the old-testament . now let us consider what are the chiefest arguments which they bring for the support of this opinion , that the law , as given by moses , doth not binde christians . and , first , they urge the preface [ i am the lord thy god , which brought thee out of egypt . ] this doth not belonge to us , because we nor our fathers ever were in egypt : & , say they further , the temporall promise to keep the law , doth not belong to us : therefore ephes . chap. . when paul urgeth that commandment with promise , he doth not keep to the promise particularly , that thy life may be long in the land the lord thy god shall give thee ; but speakes generally , first by adding something , that it may be well with thee , which was not in the first promise ; & then secondly , by detracting , saying only , that thou mayest live long upon the earth in generall . now to the preface some answer thus , that we may be said literally to be in egypt : and they goe upon this ground , that we are made one with the people of the jewes ; and they bring the eleventh of the romanes to prove this , where the gentiles are said to be graffed in , so that they become of the same stock . and it is plane , that the beleevers are abrahams seed ; and then , by this interpretation , whatsoever mercy was vouchsafed unto them , we are to account it as ours . this cannot well be rejected , but yet i shall not pitch upon this . others therefore they say , that this bondage was typicall of our spirituall bondage ; and the deliverance out of it was typicall , of our deliverance from hell. but this is not so literall an interpretation as i desire , though i think it true . therefore , in the third place , i shall answer , that there may be peculiar arguments that do belong to the jewes , why they should keep the commandments , and there are genarall ones that belong to all . the generall arguments are , i am the lord thy god , this belongs to us ; and then that peculiar argument may belong to them . and this is no new thing to have a perpetuall duty pressed upon a people , by some occasionall , or peculiar motive . hence jerem. . . . god saith there by the prophet , that they shall no more say , the lord that brought up out of the land of egypt , but that brought up out of the land of the north. where you see a speciall new argument may be brought for the generall duty . and as for the particular temporall promise , i grant that did onely belong to them ; but ideny the consequence , that therefore the precept doth not : for the scripture useth divers arguments to the obedience of the same command . davids psalmes for the most part , and some of paul's epistles , as philemon , &c. were written upon particular occasions , yet the matter of them doth still belong to us . the secoud argument is , that , if the law did oblige us as given by moses , then it did the gentiles , and heathens also , and so the heathens were bound to those commandements , as well as the jewes : but that is not so ; therefore paul , rom. . speaketh of the gentiles without this law , and as those that shall be judged without it . now this may be answered : it doth not follow that the law by moses must presently binde the gentiles , but when promulged and made known to them ; as at this time , infidels and pagans are not bound to beleeve in iesus christ : but if the doctrine of christ were promulged to them , they were then bound . and i make no question but other nations were then bound in the time of moses his ministery , to enquire after the true god , and to worship him in the jewish way , so far as they could . thus we read of the eunuch coming up to jerusalem to worship and certainly , if a whole nation had then been converted , either they must have worshipped god according to their own institution , or god would have revealed unto them some different way of worshipping him from the jews , or else they were bound so far as they could ( for the ceremoniall worship bound them no otherwaies ) to worship god in the jewish way , then appointed by him . the law then given by moses did binde gentiles , as it was made known to them : thus the stranger in the gates was to keep the sabbath , though that be meant of a stranger that had received their religion ; yea , nehem. . . nehemiah would not suffer the tyrians that were strangers , who did not submit to the jewish law , to pollute the sabbath . now to all this that hath been said , you must take this limitation , that the law given by moses doth not belong to us in all the particulars of the administration of it . the giving of the law in that terrible manner might be a peculiar thing belonging to the jewes , as becoming the dispensation of the old testament ; but yet the giving of the law it self , in the obliging power of it , doth belong to us . we all acknowledge that the old testament had a peculiar administration from the new ; it was fuller of terrour , and so did gender more to bondage then the new : hence some say , that the law was given on mount sinai ; which it was so called from seneh , a bramble bush ( the bush god appeared in . ) the mountaine being full of bramble bushes , representing unto us the terrible and pricking power of the law. use . to take heed of rejecting the law , as given by moses , lest at the same time we reject the whole old-testament : for it is said of the prophets , as well as the law , that they are till john ; and then why should they limit the law to moses his hands , more then others ? why should they not say , the law , as by david , as by isaiah , and ieremiah , doth not binde ? and if you say , they in other places speake of christ ; so doth moses also , as our saviour expresly saith . so that i see not how an antinomian can follow his principle , but he must needs cast off the old-testament , except it be in what it is propheticall of christ . lectvre xviii . matth . . , . ye have heard that it was said by them of old time , &c. but i say unto you , &c. the law as you have heard , may be considered either absolutely , as a rule , or relatively , as a covenant : we are handling of it in the first consideration , and have proved , that , as it was delivered by moses , it doth belong to us christians . i shall now handle the perfection of it , and labour to shew , that christ hath instituted no new duty which was not commanded before by the law of moses . and this question will be very profitable , partly against the antinomians , partly the papists , and lastly the socinians , as will appeare in the handling of it . that therefore i may the better come to my matter intended , take notice in the generall , that these words are part of christs sermon upon the mount ; so that as the law was first given upon a mount , so also it is explained and interpreted by christ upon a mount. and in this sermon is observable ; first , that christ begins with the end of actions , blessednesse ; for so morall philosophy , which is practicall , doth also begin . secondly , he describes the subjects who shall be made partakers of this , and they are described by severall properties . in the next place as some think ver . . he instructs the apostles about their peculiar office , ye are salt ( not honey , as one observeth ) which is bitter to wounds : ye are light , which is also offensive to sore eyes . in the next place he instructs the people ( though some make this only spoken to the disciples ) and that first about the substance of the precepts , what duties are to be done , against the false interpretations of the pharisees and scribes : and in the next chapter he sheweth the end , why we do the good things god requireth of us , and that is for the glory of god , which ought to consume all other ends , as the sunne puts out the light of the fire : and the first substantiall duty of the commandments which he instanceth in , is this in my text . now , before i raise the doctrine , i must answer some questions : as , first , a what is meant by these words , [ it hath been said by themof old ] for here is some difference . it is understood by some in the dative case , ( thus ) it hath been said to them of old : and hereby our saviour would comprehend the auditors , or hearers that have been heretofore . others do understand it equivalent unto 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as if 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 did answer the ablative case among the latines ; and so it seemeth our interpreters take it , and thus others that are orthodox : but , truly , the opposition that seemeth to be in those words , [ it hath been said to them of old : but i say unto you ] makes me incline to the former way , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is in the dative case . it is also demanded , who are meant b by those of old , to what age that doth extend ? some referre it to those times only , that were between esdras and christ : but i rather think it is to be extended even unto moses his time , for we see our saviour instanceth in commands delivered then , and thus the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 generally ( except act . . ) referreth to the times of moses , or the prophets . secondly , whether those precepts which are said to be heard of old , be the law and words of moses , or the additions of corrupt glossers . and that most of them are the expresse words of moses , it is plain ; as thou shalt not kill , or commit adultery : but the doubt lyeth upon two places ; the first is ver . . shall be in danger of judgement . here is , say some , a two-fold corruption : . by adding words , which are not in the scripture ; for they speake peremptorily , he shall dye : whereas these words seem to be obscure and doubtfull , he shall be brought before the judges to be tryed , whether he be guilty or no. the second corruption they conceive in the sense , and that is , as if the pharisees did understand the commandment only to forbid actuall murder , but not murderous thoughts , affections , or intentions : and this last seemeth clearly to be the truth , as is to be shewed afterwards : but for the former i do something doubt , because , though that addition be not exprest in so many words , yet there seemeth to be that which is equivalent ; for , numb . . . there we read , the murderer who was to be put to death , was to be tryed by witnesses , which argueth there were judges to determine the cause . the second particular , is that ver . . thou shalt hate thy enemy : where some learned men observe a three-fold depravation : . an implyed one , as if a friend were only a neighbour : . a plain omission ; for lev. . it 's added , as thy self , which is here omitted . . a plain addition of that which was not only not commanded or permitted , but expresly prohibited , as exod. . . prov. . . and this may probably be thought an interpretation of the scribes and pharisees arguing on the contrary , that if we were to love our neighbours , then we were to hate our enemies ; yet there are some who would make the sense of this in the scripture ; that is , in a limited sense to the canaanites ; for they think that because they were commanded to make no covenant with them , but to destroy them , and not to pity them , therefore this is as much as to hate them : and thereupon , they understand the two fore quoted places , that speak of relieving of our enemies , to be only meant of enemies that were jews their country-men and not of strangers . and the jews thought they might kill any idolaters ; therefore tacitus saith of them , there was misericordia in promptu apud suos , mercy to their own ; but contra omnes alios hostile odium , hostile hatred against all others : yet this command of god to destroy those nations , some understand not absolutely but limitedly , if so be they did refuse the conditions of peace . i therefore incline to those , who think it a perverse addition of the scribes and pharisees , yet am not able to say the other is false . . whether our saviour do oppose himself here to others as a law-giver , or as an interpreter , cleansing away the mud and filth from the fountain . and this indeed is worthy the disquisition : for this chapter hath been taken by the manichees and marcionites of old , and by other erroneous persons of late , to countenance great errours ; for some have said , that the author of the old-testament , and the new testament are contrary ; some have said , that the new-testament or the gospel containeth more exact and spirituall duties then the old : hence they conclude , that many things were lawful then which are not now ; and they instance in magistracy , resisting of injuries , swearing , and loving of our enemies ; and many counsels of perfection added . and this is a very necessary question ; for hereby will be laid open the excellency of the law , when it shall be seen , that jesus christ ( setting aside the positive precepts of baptisme and the lords supper , &c. ) commanded no new duty , but all was a duty before , that is now . now , that our saviour doth only interpret , and not adde new laws , will appear , . from that protestation and solemn affirmation he makes , before he cometh to instruct the hearers about their duties : think not that i came to destroy the law , but to fulfill it . now , although it be true , that christ may be said to fulfill the law diverse wayes : yet i think he speaks here most principally , for his doctrinall fulfilling it ; for he opposeth teaching the law , to breaking of the law : and if this be so , then our saviours intent was , that he came not to teach them any new duty , to which they were not obliged before ; onely he would better explicate the law to them , that so they might be sensible of sin more then they were , and discover themselves to be fouler , and more abominable then ever they judged themselves . thus theophylact , as a painter doth not destroy the old lineaments , only makes them more glorious and beautifull , so did christ about the law. in the next place , christ did not adde new duties , which were not commanded in the law , because the law is perfect , and they were bound not to adde to it , or detract from it : therefore we are not to continue a more excellent way of duty , then that prescribed there . indeed the gospel doth infinitely exceed in regard of the remedy prescribed for afflicted sinners , and the glorious manifestation of his grace and goodnesse ; but if we speak of holy and spirituall duties , there cannot be a more excellent way of holinesse , this being an idea and representation of the glorious nature of god. . that nothing can be added to the law , appeareth by that commandment of loving god with all our heart and soul : now there can be nothing greater then this ; and this command is not only indicative of an end which we are to aime at , but also preceptive of all the means which tend thereunto . and lastly , our saviour saith not , except your righteousnesse exceed that of moses his law , or which was delivered by him , but that of the scribes and pharisees ; implying by that plainly , his intent was to detect and discover those formall and hypocriticall wayes which they pleased themselves in , when indeed they never understood the marrow , and excellency of the law. question . what was the opinion received among the pharisees concerning the commandments of god ? that you may know the just ground our saviour had thus to expound the law , it will be manifest , if you consider the generall opinion received among the jews about the sense of the commandments ; and that was , the law did onely reach to the outward man , did only forbid outward acts , and that there was no sin before god in our hearts , though we delighted in , and purposed the outward acts , if they were not outwardly committed . and this we may gather by paul , that all the while he was bewitched with pharisaicall principles , he did not understand inward lust to be sin : and as famous , as it is false , is that exposition brought by the learned of kimchy upon that psalm . . if i regard iniquity in my heart , he will not hear : he makes this strange meaning of it , if i regard iniquity onely in my heart , so that it break not forth into outward act , the lord will not hear , that is , hear , so as to impute it , or account it a sin . and thus it is observed of josephus , that he derideth polybius the noble historian , because he attributed the death of antiochus to sacriledge onely in his purpose and will , which he thought could not be ; that a man , having a purpose onely to sin , should be punished by god for it . but the heathens did herein exceed the pharisees , fecit quisque quantum voluit : its seneca's saying . and , indeed , it s no wonder if the pharisees did thus corrupt scripture , for its a doctrine we all naturally incline unto , not to take notice , or ever be humbled for heart sins , if so be they break not out into acts . oh , what an hell may thy heart be , when thy outward man is not defiled ? good is that passage , chron . . hezekiah humbled himself for the pride of his heart . certainly , as god , who is a spirit , doth most love spirit-graces ; so he doth most abhor spirit-sins . the schools do well observe , that outward sins are majoris infamiae , of greater reproach , but inward heart-sins are majois reatûs , of greater guilt , as we see in the devils . and from this corruption in our nature , ariseth that poisonous principle in popery , which is also in all formall protestants , that the commands of god do onely forbid the voluntary omission of outward acts , whereas our saviours explication will finde every man to be a murderer , an adulterer , &c. now our saviours explications of the law go upon those grounds which are observed by all sound divines , viz. . that the law is spirituall , and for . bids not onely the fruit and branches of sin , but even the root it self and fountain : and . that wheresoever any sin is forbidden , and in what latitude soever ; the contrary good things are commanded , and in that proportionable latitude . this therefore considered , may make every man tremble and be afraid of his own heart , and with him to cry out , gehenna sum domine , i am a very hell it self . let us not therefore be afraid of preaching the law as we see christ here doth , for this is the great engine to beat bown the formality , and pharisaisme that is in people . and thus i come to raise the doctrine , which is , that the law of god is such a perfect rule of life , that christ added no new precept or duty unto it : but even as the prophets before did onely explicate the law , when they pressed morall duties ; so also christ and the apostles , when they urge men unto holy duties , they are the same commanded heretofore : i do not speak of sacraments , or the outward positive worship , which is otherwise then was in the old-testament ( they had circumcision , and we have baptisme ) but of the morall duties required of us . it is true , in the old-testament many things were expressed more grosly and carnally , which the people for the most part understood carnally ; yet the duties then commanded were as spirituall as now : there is onely a graduall difference in the manifestation of the duties , no specificall difference of the duties themselves . and that this may appeare the more to the dignity and excellency of the law , i will instance in particulars : first , the law of god required the heart-worship and service . that this may be understood , take this for a generall rule , which is not denied by any : that when there are any morall duties pressed in the old-testament , the prophets do it , as explainers of the law ; they do but unfold and draw out that arras which was folded together before . this being premised , then consider those places in the old-testament that call for the heart : thus pro. . let thine heart keep my commandements ; so pro. . . my sonne , give me thine heart : so that all the duties then performed , which were without the heart and inward man , were not regarded : god required then heart-prayer , and heart humiliation . it s true , the people for the most part understood all carnally and grosly , thinking the outward duty commanded onely : and that is no marvell ; for do not people , even in these times of the gospel , look to the externall duty , not examining whether they pray or humble themselves according as the word speaks of such duties ? thus david was very sensible of his heart-neglect , when he prayed , unite my heart to feare thy name : and are not the people of god still under the same temptations ? they would pray , they would humble themselves ; but oh how they want an heart ! that is so divided and distracted , that if after any duty we should put that question to it , as god did to satan , from whence commest thou ? it would returne satans answer , from compassing the earth . . it preferred duties of mortification and sanctification , before religious outward duties . this you shall see frequently pressed and inculcated by the prophets . isaiah . how doth god abhorre there all their solemne duties , making them abominable even like carrion , and all because they did not wash them , and make them clean ? so david saith , a broken and contrite heart , it was more then any burnt offering now under the times of the gospel . this is an high duty , and few reach unto it . doth not the apostle reprove the corinthians for desiring gifts , rather then graces ; and abilities of parts , rather then holinesse ? so that this is an excellent duty prescribed by gods law , that to be able to mortifie our affections , to have sanctified natures , is more then to have seraphicall knowledge , and cherubinicall affections in any duty . who then can be against the preaching of the law , when it is such an excellent and pure rule , holding forth such precious holinesse ? . it required all our duies to be done , . in faith : for who can think , that when god required in the first table having him for their god , that hereby was not commanded faith and trusting in him , as a god in covenant , who would pardon sinne ? how could the jewes love god , or pray unto him acceptably , if they had not faith in him ? therefore the law is to be considered most strictly , as it containeth nothing but precepts of things to be done in which sense , it is sometimes , though seldom , taken . and . more largely , as it had the preface , and promises added unto it : and so it did necessarily require justifying faith ; for it cannot be conceived , that when god commanded the people of israel by moses , to worship him , and to acknowledge him as their god , but that his will was , they should beleeve on him as a father : but more of this when we speak of the law as a covenant . . in love : and this is so much commanded by the law , that christ makes the summe of the law to be in these two things ; love of god , and of our neighbour . therefore i wonder at the antinomian , who is so apt to oppose the doing of things in love , and doing of them by the law together : for , doth not the law of god command every duty to be in love , to pray in love to god ? yea , by the law we are to love god , because hee hath given christ for us ; for the law commands us to love god for whatsoever benefits he bestoweth upon us : now , if we are to love him for temporall benefits , much more for spirituall . it is true , the dispensation of the law was in a terrible way , and did gender to bondage ; but the doctrine of the law , that was for love , and the more any jew did any thing in love to god , the more conformable he was to gods law. . it required such an heavenly heart , that we are to love god more then any thing else . it did not only require love to god , but also it commanded it in such a preheminency , as that none under the times of the gospel can do an higher duty , or expression of love than then was commanded ; suppose a man be a martyr , will lose his life for gods cause , this is an obedience to the first commandement . when our saviour saith , he that loveth father or mother more then me , is not worthy of me ; he commands no higher thing of any christian , then every jew was bound to do ; hence levi was so commended , because in executing of justice , he knew not father or mother : and it must needs be so ; for what can be more then all ? and yet god requires all the minde , all the heart , all the strength ; not that we are bound to love god in quantum est diligibilis , for god can only can love himself , but nihil supra , aequè , or contra . . it required spirituall motives for all our solemn addresses unto him . there are some men who look upon all the jewes under the old testament as so many bruit beasts , that did only minde earthly things : and that as children are allured by apples and nuts rather then by a great inheritance ; so they were only invited to duties by carnall and temporall motives , not by any spirituall considerations . now how false this is , appeareth by the prophets generall complaints , that when they fasted , it was not to him , even to him ; and so they howled , because of their miseries , but not becase god was offended : and thus david , though he had received the pardon of his sinne , yet how kindly , and spiritually doth he mourn , against thee , thee only have i sinned ? thus micah . i will beare the indignation of the lord , because i have sinned against him . what can be more spirituall ? . it required joy and contentednesse in him more then in any creature ; yea , to the contempt of all creatures : & doth the gospel-administration rise higher in any command ? we judge those very spirstuall expressions , reioyce in the lord alwayes ; and , set your affections on things above ; and , our conversation is in heaven : but doth not david go as high , when he saith , whom have i in heaven but thee , and none in earth in comparison of thee ? did not david preferre the word of god above gold and honey ? did not his heart faint , and yern within him ? what a sweet strain is that of him , when banished , he doth not wish for his kingdome , nor outward estate , but to see god in the beauties of holinesse ? therefore , howsoever the dispensation was not so cleare and manifest , yet those that were diligent and blessed by god , did arise to such excellent tempers . . yea , it required all perfection . but what need i runne further in perfection , seeing it comanded all perfection ? perfection of the subject , the man ought to be in minde and soul and affections all over holy ; perfection in the object , there was no duty , or performance , but the law requireth it ; perfection in degrees , it did require love without any defect , without any remissenesse at all : so that there cannot be a more excellent doctrinall way of holinesse then the preaching of the law. . god ●●d work grace in us by this , as well as by the gospel . i a 〈…〉 this particular , lest any should say , all this terrifieth the more , because it only commands , and doth not help : i answer , that god doth use the law instrumentally , for to quicken up grace , & increase it in us , as david , psal . . doth at large shew . it is true , the law of it self cannot work grace ; no more can the gospell of it selfe work grace : only here is the difference , we cannot be justified by any works of the law that we are inabled to do , only we are justified by faith ; not as it is a work , for so it s commanded in the law , but as an instrument applying christ . therefore gods spirit doth graciously accompany us in the pressing of these duties ; and hereby we become like a living law : neither doth this exclude christ , but advance him the more . use . of instruction , how necessary a duty it is for a minister of iesus christ to be diligent in preaching and explicating of the law of god. we see christ here , the first , and the longest sermon that ever he preached , was to vindicate the law , and to hood forth the excellency of it : and if we be legall preachers in so doing , then christ also is so to be accounted : and indeed some have not been affraid to speak so of christ . but to speake the truth , the preaching of the law is so necesstry , that you can never be spirituall , heavenly , heart-christians , unlesse these things be daily set before your eyes . can the boy ever learn to write well , unlesse an exact copy be laid before him ? therefore you can never advance the law too much , or heare of it too much , if so be it still be propounded as a rule , as a doctrine . indeed when it is made a ground for our justification , then we turne the precious manna into corrupt wormes . therefore be so farre from condemning , or disputing against the law , as that you would earnestly desire to have more and more of this excellent rule laid downe before your eyes . how proud will be my best humility ? how carnall will my best heavenly-mindednesse be , if so be that i go to this rule ? where will formality , and customary duties appeare , if so be that we attend to this guide ? oh know , there is a great deale of unknowne sinfulness in thy heart , because the law is unknown to thee . lectvre xix . matth . . , . ye have heard , it was said of old , &c. because my purpose is to set forth the dignity of the morall law , i shall therefore briefly demonstrate in this present sermon , the falshood of that opinion , maintained by papists , anabaptists , and socinians , that christ came to give us more exact precepts then moses delivered to the jewes , and therefore that christ was not here an interpreter , but a reformer . it cannot be denyed , but this sermon of our saviours hath bred many thoughts of heart : for , because of these precepts here , not rightly understood , the heathens took occasion to calumniate the christian religion , as that which could not stand with a common-wealth : and the ancient fathers were much troubled in answer to their objections ; for when julian and others did urge , that seeing by christs commands we might not resist evill , but rather be prepared to receive more injuries , therefore no warre no magistracy , no places of judicature were lawfull : the fathers in their answer did seeme to yeeld this , only they said , here was a lawfull way , and a better way : to warre , or to take places of justice were lawfull wayes ; but yet to refuse these , and not to medle with them at all , was a more sublime , christian way . and from this mistake came that erroneous opinion of precepts and councels . besides , it 's thought by the learned , that some of the ancient fathers , being philosophers before , did retaine much of that stoicall disposition in them , and so made christs precepts comply with their affections : but this i shall endeavour to prove , that there is no lawfull morall way heretofore commanded by moses to the jewes , which doth not at this time also belong to christians . only let me premise thus much , that , howsoever the things questioned by the adversaries , are lawfull to christians ; yet there are few that rise up to the practise of them as christ commanded . certainly these places ; of not resisting evill , of giving our cloak to him that would take away our coat , &c. though they do not exclude the office of a magistrate , or our desire of him to aide us in our defence ; yet they do forbid the frequent and common practise of most christians ; so that we may say , there are few states ; and kingdomes which do rise up to the practise of that patience , and christian meeknesse , which we see here commanded . inso much that kingdomes are more the kingdomes of the world then of christ , and the lawes and practises of common-wealths are such as sute more with humane states then with the lawes of christ . but i come to the particulars . and first , whereas it 's granted to be lawfull by the law of moses to swear , now ( say some ) under the gospel it 's made absolutely unlawfull , under any pretence whatsoever , and ( say they ) here our saviour forbids it absolutely , swear not at all ; and james , following this of our saviour , doth the like . hence their opinion is , that it is not only unlawfull , to swear falsely and vainly , but at all in any respect . and this ( say they ) is a perfection required of christians above those of the law. nor is it any wonder that men of late have doubted of this , seeing the learned shew , that some of the fathers of old have thought it absolutely unlawfull for a christian to swear . in eusebius one basilides , a christian , being commanded to swear , replied , it was not lawfull for him , because he was a christian : and hierome saith , that to swear was permitted to the jews , or infants , as to offer sacrifices unto god ; yet i cannot see , but that they did swear also , although sometimes they speak as if they thought there were an absolute prohibition of it . yet athanasius made a solemn oath , to purge himself , when accused to the emperour : and tertullian saith , though the christians refused to swear per genium principis , because that they conceived it a devill , yet they did swear per salutem principis . some again have thought , that it is lawfull to swear , but then only in religious things , or in things that do concerh the safety of the publique , but that it is not lawfull to swear in any thing of our own , or about any money matter : and basil doth object to the christians of his time , the example of one clinius a pythagorean , who being fined a great summe of money , and might have escaped it by an oath , yet chose rather to undergoe that dammage then to swear . some have thought it better , if in humane affairs , where promissory oaths use to be , there were only a naked promise , yet with as great a punishment upon the breaking of it , as if it were perjury , because men are for the most part more awed with fear of punishment then breaking an oath but , whatsoever the thoughts of men may be about limiting of swearing ; yet it is lawfull in some cases to swear : neither is our saviour so to be understood as universally forbidding . first , because then he would have destroyed the law , which yet he denyeth that he doth ; for deut. . to swear by god , is a command not indeed of a thing absolutely in it self , but occasionally , as opportunity shall be : therefore the word that signifieth to sweare in the heb. is in the passive sense ▪ implying that we are not voluntarily to choose to do so , but when necessity requireth it . secondly , again , christ doth not absolutely prohibit it , because the use and end of an oath is perpetuall , which is to end controversies , heb. . therefore . aquinas saith well , that , what first principles are in speculatives , to determine all conclusions , the same an oath is in practicalls , to end controversies . thirdly , and lastly , we have the example of paul swearing sometimes in his epistle ; so that our saviour doth not altogether forbid it , but he reproveth the pharisees corrupt glosses , which were , . to think that if a man did not name god in his oath , though it were by other creatures , it was not perjury , if he did falsifie that oath . and how many come neer this , who think if they sweare by the creatures , so that god is not named , it 's not such an hainous thing . the second corrupt interpretation was , they thought that gods name was not polluted , if so be they intended to make good their promise , though they did use the name of god in their oathes , about unnecessary , and vain matters . now this our saviour forbids by his affirmative direction , let your yea , be yea , and nay , nay , what soever is more then this is of sinne . he speakes there of our ordinary & familiar discourse as private persons ; not concerning a publike consideration : even as afterwards , when he mentioneth the duty of not resisting evil , he forbids private revenge , and not publique justice . although some understand this of our saviours , and that of james , not of assertory oathes ( for it 's spoken by our saviour , in addition unto that , thou shalt pay unto the lord thy vows ) but of promissory oaths ; and so the meaning , is , although thou intend to performe or do such a thing , yet doe not sweare , because things are so uncertain , and many things may fall out : and this is very probable . only if you understand it the former way , you must not take it so , as if an oath were such a lawfull thing , as that it is propter se appetendum ; but only as physick is , which is sometimes necessary for another thing . thus therefore having cleared , that our saviour intendeth no higher thing then that was lawfull before , give me leave to reprove the common practise among men , who say they are christians , about swearing . if you observe men in their discourse , in their trading , do they carry themselves so , as if christ had said , sweare not at all ; and not rather , as if he said , sweare alwayes and altogether ? oh therefore that this common customary way of swearing , which doth so directly oppose christ , were wholy laid aside ! the very heathens will condemne us herein , and among the heathens , ex animisui sententià , was in stead of an oath . it seemeth this custome of swearing in discourse hath been of old ; for chrysostome and austin are very vehement against it in their sermons . now let us proceed . there are some who from those words of our saviour spoken ver . , , , . do gather , that now under the gospel it 's not lawfull , . to put any man to death for any fault whatsoever . . that it 's not lawfull to warre . . not to go to law in any case , . not to seek to a magistrate for the defence of our selves ; therefore in these opinions they thinke they hold forth much of christian meeknesse and patience : but before we come to the particulars , let us consider in what sense it'a said , an eye for an eye , a tooth for a tooth . this kind of law was an ancient one among other nations : aristotle cals it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and we read of a double retaliation , one pythagoricall , which was wicked and ungodly , holding that if a man did thieve from one , the same might thieve from him again : the other mosaicall , which was good , and had justice in it . onely the question is , whether this be literally to be understood , that it was lawfull for a man , who had his eye or tooth struck out by another , to desire of the judge , that he , who did this violence , should also have his eye or tooth beaten out . you may reade the law exod. . . and how it ought to be moderated by judges , ( private men not being left to revenge themselves ) deut. . . this law was not given ( as one wickedly saith ) to indulge the childish condition of the jewes , as being apt to revenge , and therefore makes it an imperfect law , ( saying that many lawes of men were more perfect lawes ) but it was given against private revenge , and the end was that justice might be done . now some have said , this law was literally observed , and that a man who was wounded by another , hee himselfe was wounded againe . but i doe rather thinke that the command in the letter of it was not observed , but that a recompence was made according to the judgment of the judge for the losse : and it would have been a very hard thing , if one man had wounded another , to inflict just such a wound , neither deeper nor broader , nor doing no more hurt upon the man who offered violence . wee therefore come to the questions : and first concerning capitall punishments to be inflicted upon some offenders . there are those that say , it doth not stand with the goodnesse and meeknesse of a gospel-spirit to put any man to death for any crime whatsoever . but the falsenesse hereof doth appeare , . in that it 's a command of god from the beginning , with a perpetuall reason added to it , that he who was guilty of murder , should be put to death ; so that at least in this case there ought to be a capitall punishment . now the command that god gave is gen. . . whatsoever sheddeth mans blood , by man shall his blood beshed , and there is the reason given of it , because the image of god , viz. in his soule , is in him to elude this , they say that this is not a command but a meere prediction : god doth here fore-tell ( say they ) what will befall the murderer , not what a magistrate is bound to do . but that is a meere evasion ; for why should god fore-tell this , but because it was a duty to be done ? therefore it 's not said indefinitly , he that sheddeth mans blood , his blood shall be shed , but he addeth , by man it shall be shed . therefore , howsoever a great * scholar saith , that those are deceived , who think capitall punishments are appointed by the law of nature , or any perpetuall law of god ; yet this place demonstrateth the contrary : neither is it any matter that plato would have reduced into his common-wealth the abrogation of capital punishments ; or that the romans for a while did use no heavier punishment , then deportation , or banishment ; we must live by commands , and not by examples , especially humane . it's instanced in cain , who , though he killed his brother abel , yet god did not destroy him . it must be granted , that , gods indulgence to cain was very great ; for he doth not only spare his life , but sets a marke upon him to preserve him ( what this was , they are most to be commended , who dare not determine it , because the scripture is silent in it . ) and not only so , but he addeth a more severe punishment to that man that shall kill cain , then was due to the killing of any man. although it may be thought god in suffering cain to live , was not so much indulgent as severe , in suffering him to be an instance of his displeasure against him to all the world ; as psal . . . slay them not ( saith the psalmist ) lest my people forget : so that it is one thing , what god may do for speciall reasons ; and another , what the common law of nature , and the perpetuall law of god requireth . a second argument for capitall punishents under the gospel , is from the magistrates office , who , rom. . is said , not to beare the sword in vaine : now the sword , doth imply a power of life and death , and therefore paul said , if i have done any thing worthy of death , implying there were some things that did deserve it . lastly , that to put to death men for faults , is not repugnant to the spirit of the gospel , appeareth by the judgement upon ananias and sapphira . you cannot reade of a-more severe expression under the law , then that was of the gospel ; so that as we are indeed to labour for the meeknes and patience of a christian , yet we are not to forget zeale for godsglory , and the publick good , it being cruelty to the good to spare the bad : and if we would pity such a man offending , we must much more pity the common-wealth . that which is objected to this is , . the rebuke that our saviour gave to his disciples , when they would have had fire come downe from heaven : they are reproved upon this ground , because they knew not what spirit they were of . now , say they , this spirit is the spirit of the new testament , which is opposed to the spirit of elias in the old. the answer is obvious that christ doth not there oppose the spirit of the new testament & the old together , but their spirit , and elias his spirit . what elias did , he was moved unto by the spirit of god , not for any private revenge , but that the glory of god might be illustrated . now this fire of theirs was rash and vindicative : it was not elementary fire , but culinary ; nourished by low and unworthy considerations . in the next place they urge the fact of our saviour , john . to the adulteresse ; where he doth not proceed to the stoning of her , but rather freeth her . the answer is , that christ in his first coming was not as a judge , and therefore did not take upon him to medle in temporall punishments , only as a minister , he laboured to bring them unto repentance , both the woman , and the accusers . and whereas againe it 's objected , that this way of putting to death , is against charity and love of mens souls , because many are put to death without any seeming repentance , which is presently to send them to hell. the answer is , that all magistrates , they are to take care for the salvation of the melefactors soules , as much as in them lyeth ; but if they doe perish in their sins , this ariseth not from justice done , which is rather to bring them in mind of their sins , and to humble them but it cometh from the frowardnesse , & obstinacy in their owne hearts . and in that , we see a magistracy confirmed in the gospel , we need not require an expresse command in the new testament for the putting of some malefactors to death . the third thing which they say was allowed in the law , but forbid by christ in the gospel is warre : and certainly we may reade in antiquity , that the christians did refuse warre , but not universally ; for there were christian souldiers , only there were some peculiar causes , why in those times , the christians might decline it ; as , first , because in their military oath , there was a calling upon a heathen god , and their banners lifted up were polluted with idolatry . and secondly , because they should be forced sometimes to be instruments in accomplishing the emperours edicts against the christians , which they would not do : now if we bring places out of the old-testament for the lawfulnesse of warrs , they care not ; for , say they , the laws of nature , and of moses are to be reformed by the lawes of christ , god indeed ( say they ) gave the jewes in the old-testament leave to fight , because they had a temporall inheritance and possession given them which they could not keep but by force of armes : now under the new-testament , god hath not done so to his people . thus they say , but this is a shift , for we know abraham , by a meere law of nature , went to war , and delivered his nephew lot , being oppressed by enemies . by that warre is allowed by christ , appeareth plainly by comparing . tim. . . and rom. . where the apostle would have us pray for magistrates , & supposeth , that while they are magistrates , they may be christians , and come to the faith ; so that thereby we may live a quiet and godly life under them ; now how can this be unlesse they draw their sword upon offenders ? and if they cannot in an ordinary legall way be brought to judgement , then by force of armes . the second knowne argument is from luke . . where john baptist counselleth the souldiers not to lay downe their office , but to look to such duties as were necessary to them in that place ; and , which is to be observed , these were mercenary souldiers , as it is thought , they were at that time . as for the objections , they are taken from such considerations , as will be examined in the next particular ; only the orthodox that do hold war lawfull , they do acknowledge many rules necessary for the godly and holy managing of it : and it is an hard thing to have an holy camp ; and this made austin say , in regard of the concomitant evils of it , that omne bellum etiam justum esse detestandum ; yet not but he thought it necessary to have it used , when it concerned the glory of god , and the good of the publique . lectvre xx. matth . . , . ye have heard it hath been said by them of old , &c. there remain two questions more to be decided in this businesse , concerning christs interpretation of the law of moses : the one is about the lawfulnesse of repelling force by force : the other about applying our selves to the magistrate , to defend us against the injury , and violence of others . now , that i may not be tedious in the discussing of these , i will lay down fome few grounds that serve to the clearing of the truth herein , and so proceed to other matter , although ( as you have heard ) this tendeth much to the dignity and excellency of the law. first therefore take notice , that there is in all a cursed pronenesse to do things by way of revenge : insomuch that there is not one in a thousand that doth rise up in practise to this excellent way , and rule of patience . the heathens , they thought to revenge our selves was lawfull : thus tully , it is the first office of justice to hurt no body , unlesse first provoked by injury : o quam simplicem , veramque sententiam ( saith lactantius ) duorum verborm adjectione corrupit ! but seneca , he was against this , immane verbum est ultio ; and , qui ulsciscitur , excusatiùs peccat . now whatsoever the thoughts of men may be about the lawfulnesse , it 's certain , the practises of men are much contaminated this way . in state and civil matters , in church matters , what a revengefull spirit breatheth in men ? this certainly cometh much short of our saviours directions . there is no injury or violence offered unto thee , but , in stead of revengefull affections , there may be holy mortifying thoughts in thee : as when sheba cursed david , see how that brought him to the sense of sinne , to look up unto god more then to the instrument . all defamations and reproaches may serve to make thy graces more splendent . as plutarch observeth , the gardener planteth his unsavory herbs , garlike and onyons neer his sweetest roses , that so the smell thereof may be the more prized . that was an excellent temper of calvin , when reviled by luther , he said , etiamsi lutherus millies me diabolum vocet , ego tamen illum insignem domini servum agnosco . although luther call me a thousand times a divell , yet i acknowledge him , an eminent servant of god. why is it , that there are such suspicions , heart-burnings , defamations of one another , hard speeches and censures , but because this lesson of christ is not learned by us ? . consider this , that the primitive christians have gone very farr in this question , holding it unlawfull to defend a mans self from another who would kill us , by killing of the invader . austin saith , he cannot tell how to defend those that do kill the invader ; and to this purpose others . it is maintained by some , that though indeed a man is not bound to be killed rather then to kill ; yet if he do chuse the former rather then the latter , he doth a work full of charity , and worthy of admiration . another saith , these precepts of christ were given to the disciples , who were by their blood to increase the church , and by their patience and humility to convert tyrants : but now modernis non congruit , nec locum habet hodie , esset enim ad detrimentum ecclesiae ; it doth not hold in these latter times , for that would be to the prejudice of the church ; a foolish assertion . as these go too high , so the jesuits in their cases , they go too low , and give too much roome to the revenge of man ; for so it 's determined by them , that a noble man , though he may save his life by flying , when invaded suddenly , yet is not bound to fly , but may lawfully kill the invader , if he cannot otherwise preserve his life and honour together . but this is corrupt counsell , and opens a way to many murders upon a pretence of honour . . take notice of this , that the law of god in the old-testament , was as strict against revenge as any precept in the new-testament , and therefore nothing is now required of us , which was not then . consider that place , lev. . . thou shalt not avenge , or beare any grudge against the children of thy people , but thou shalt love thy neighbour as thy selfe : what can be clearer then this , to subdue those waves and tempests that do rise in our hearts ? so prov. . . say not , i will do to him , as he hath done to me : i will render to the man , according to his work : here also revengefull expressions & resolutions are forbidden ; yea the reason why we are forbidden to avenge our selves given by paul , rom. . . because vengeance belongs unto god , is that which was drawn from the old-testament . in stead therefore of disputing , let us seriously set upon the practise of the duty , & the rather because it 's sweeter then honey it selfe to our corrupt hearts ; and at this time this sinne doth much rage every where . lastly , our saviour doth not here forbid a lawfull publique revenge , but a private one . this distinction of publique and private revenge , being unknown to the fathers in the primitive times , made them runne into very hard and incommodious expressions ; some giving occasion hereby of that distinction of counsels and precepts : others , as austin , making the revenge allowed in the old-testament to be peculiar to the dispensation of those times : hence , when one volusianus objected to him , that the doctrine of christ did not agree to the manners of a common-wealth ; he answereth by comparing the precept of christ with that of caesars , that he used to forget nothing , but injuries . now this doth not indeed speake according to the scope of our saviour here , who is giving rules to private christians , not to publique magistrates . now that there is such a distinction as this , appeareth plaine , thus ; paul , rom. . . exhorteth christians not to avenge themselves , because vengeance belongs to god ; yet , chap. . speaking of the magistrate , ver . . he saith , he is the avenger to execute wrath upon him that doth evil : so then there is revenge and a revenger , which is not god ; nor yet our selves , but the magistrate ; yet the revenge that the magistrate inflicteth may well be called the vengeance of god , because it 's gods appointment he should doe it . thus numb . . . arme your selves , and avenge the lord on the midianites : so . chron. . you execute the judgments of the lord , and not of men ; yet for all this , you must know that magistrates may have revengefull affections in them , even when they execute justice ; and so people , when they implore the magistrates aid , it may not be out of zeale to justice & love to the publique good , but because of private affections , and carnall dispositions . and oh the blessednesse that would accrew to the common-wealth , if all were carried in their severall places upon this publique ground ! having therefore dispatched briefly these controversies , i come to another , wherein the antinomian doth directly derogate from the profitable effect & benefit of the law. this therefore is an assertion which an ●ntinomian authour maintaineth , that the law is not an instrument of true sanctification , & that the promise or the gospel is the seed and doctrine of our new birth & for this he bringeth many arguments , and the judgments of diverse learned men , assertion of grace , pag. . and it may not be denyed , but that many speeches might fall from some men , which might seem to comply with that opinion . i shall now labour to maintaine the positive part , viz. that the law of god preached , may be blessed by him instrumentally to work the conversion of men : and it is necessary to make this good ; for , were the contrary true , it would be a ministers duty in great part to lay aside the preaching of the morall law , as not instrumentall , or subservient to that maine end of the ministery , which is the conversion of soules . nor can i yeeld to that , that the preaching of the law works onely preparatorily , or some terrours about sinne , and can goe no further ; but ( i suppose ) that jesus christ hath obtained of god by his death , that such efficacy and vertue should goe forth in the ministry that whether it be by law , or gospell he preacheth , the soules of men may be healed , and converted thereupon : onely two things must be premised ; first , that the law could never work to regeneration , were it not for the gospel-promise . nemo potest implere legem , per legem , none can obey the law , by the law meerly . had not god graciously promised to give a new heart through christ , there had been no way to make any thing effectuall that we preach out of the law ; so that ( for instance ) while a minister , preaching of any commandement , doth thereby mould , and new frame the heart ; all this benefit comes by christ , who therefore died , and ascended into heaven , that so the things we preach may be advantagious to our souls : so that there never was in the church of god meer pure law , or meer pure gospel . but they have been subservient to each other in the great work of conversion . the question is not then , whether converting grace , be ex lege , or vi legis , of , or by the power of the law , but whether it may be cum lege , with the preaching of the law. i know it 's of great consequence to give an exact difference between the law and the gospel . it is well said of luther , qui scit inter legem & evangelium discernere , gratias agat deo , & sciat se esse theologum : but i shall not meddle with that now . this is that which i assert , that , as to the point of a mans conversion , god may make the opening of the morall law instrumentally to concur thereunto , onely this cometh by christ . the second thing which i premise is this , that howsoever the law preached may be blest to conversion , yet the matter of it cannot be the ground of our justification , or adoption : so that when a man doth repent , & turn unto god from his sins , he cannot have hope or consolation in any thing he doth , but it must be in the promise of the gospel ; so that the difference of the law and gospel lieth not in this , ( as some do assigne ) that one is the instrument of grace , and the other not ; ( for god useth both , as i shall shew ) but in this , that the holinesse wrought in us by preaching of the word of god , whether it be law or gospel , doth not justifie us ; but this favour is in an evangelicall manner , by forgiving whatsoever is irregular in us , and communicating christ his righteousnesse to us . therefore let us not confound the law , or gospel , nor yet make them so contrary in their natures and effects , that where one is , the other cannot be . to these two , there is also a third thing to be premised , and that is , how the word of god in generall is a medium , or instrumentall to our conversion . for , the clearing of this well , must needs discover , that the law of god , being part of gods word , doth convert as well as the gospel : and this must needs be the opinion of all sound divines , whatsoever may fall from them at other times , as appeareth by their common answer to the papists question . if the law , and the commands thereof be impossible , to what purpose then doth he command them ? why doth he bid us turne to him when we cannot ? then we answer that these commandements are not onely informing of a duty , but they are practicall and operative means appointed by god , to work , at least in some degree , that which is commanded . hence those commands are compared , by the learned , to that command of our saviour to lazarus , that he should rise up and walk . it doth also further appeare , in those ends they assigne of gods revealing the law , viz. to make us see as in a glasse our deformity , to be humbled before god ; to be affrighted out of our selves , to seek for grace in christ ; now can the meer law of it selfe do this ; doth not grace work this in us by the preaching of the law ; and is not this the initiall grace of conversion ? as austin said , tract . . in johan : cumcaeperit tibi displicere quod fecisti , inde incipiunt bona opera tua , quia accusas mala operatua : initium operum bonorum , est confessio malorum : the beginning of good in us , is the accusation of that which is bad . therefore , for the clearing of this generall , take notice , . that the word of god as it is read , or preached , worketh no further then objectively to the conversion of a man , if considered in it self . take it ( i say ) in it self , not animated by the spirit of god , and the utmost effect it can reach unto , is to work onely as an object upon the understanding . and in this sense it is that the scripture is compared to a light . now we know the sun giveth light by way of an object , it doth not give a seeing eye to a blind man. it is a noble queston in divinity , seeing regeneration is attributed both to the word , and to baptisme , how one worketh it differently from the other : or , if both work it , why is not one superfluous ? now concerning the word preached , we may more easily answer , then about the sacraments , viz. that it works by way of an object upon the soul of a man : and were it not set home by the spirit of god , this is the furthest worke it could obtaine . and this doth plainly appeare , in that the word of god doth only convert those who are able to heare and understand . and the word of god being thus of it selfe onely a directive and informative rule : hence it 's compared to the pilots compasse , to theseus his thred , leading us in the circean gardens of this world : and therefore take away the spirit of god , and we may say , the whole scripture is a letter killing , yea that which we call the gospel . preach the promises of the gospel a thousand times over , they convey no grace , if the spirit of god be not there effectually . indeed , if the communicating of grace were inseparably annexed to the preaching of the gospel , then that were of some consequence which is objected by the antinomian . but sad experience sheweth , that notwithstanding the large promises of grace to overflow like a fountain ; whereas in the old testament , it was by drops only , yet the greater part to whom the grace of god is offered , are not converted . therefore in the next place consider this , whatsoever good effects , or benefit is conveyed to the soul by the preaching of the law , or the gospel , it 's efficiently from gods spirit : so that we must not take the law without the spirit of god ; and then compare it with the gospel , having the spirit of god , for that is unequall . and by the same reason , i may preferre the law sometimes before the gospel ; for i may suppose a minister , opening the duties of the law , as christ doth here in this chapter , and the spirit of god accompanying this , to change the heart of a man : and on the otherside , one preaching the gospel , in the greatest glory of it , yet not accompanyed with gods spirit , there may not be the least degree of grace wrought in any hearer : therefore i cannot well understand that , the law indeed that sheweth us our duty , but the gospel , that giveth us grace to do it ; for , if you take the gospel for the promises preached , how many are there that heare these , that yet receive no benefit by them ? and on the other side , if the law , setting forth our duty , be accompanyed with gods spirit , that may instrumentally work in us an ability to our duty ; and without the spirit the gospel cannot do it . it is true , if this were the meaning , that had there been only law , there could never have been any grace vouchsafed , but it is by reason of christ , and so the promises of the gospel , that any good is brought to the soules ; and so the law worketh as a medium to our conversion by christ . if , i say , this be the meaning , then it 's true ; but the obscure , and unclear expressing of this , giveth an occasion to the antinomian errour . now that the scripture , as it is written , or preached , without the spirit of god cannot convert us , is plain , partly because then the devils , and great men of parts , which do understand the letter of the scripture better then others , would be sooner converted ; partly because the scripture , so far as it 's a word read , or preached , cannot reach to the heart , to alter and change that . hence the word of god , though it be compared to a sword , yet it 's called a sword of the spirit , ephes . . . yet , although this be true , we must not fall into that extream errour of some , who therefore deny the necessity of the scripture , and would have us wholly depend upon the spirit of god , saying , the scripture is a creature , and we must not give too much to a creature ; for the spirit is the efficient , and the word is the subordinate , and these two must not be opposed , but composed one with the other . now having cleared this generall . i bring these arguments to prove the law , and the preaching of it , the means of conversion . . that which is attributed to the whole word of god , as it is gods word , ought not to be denyed to any part of it . now this is made the property of the whole word of god , to be the instrument of conversion , tim. . . where you have the manifold effects of gods word , to reprove , to correct , & to instruct in righteousness , that the man of god may be thorowly furnished to every good work . now mark the universality of this , all scripture , whether you take all collectively or distributively , it will not invalidate this argument , because every part of scripture hath it's partiall ability , and fitnesse for these effects here mentioned . thus math . the word of god in generall is compared to seed fown , that bringeth forth fruit : see also heb. . . . the second argument is taken from those places where the law is expresly named to be instrumentall in this great work . not to name that place of rom. . . where the law is called spirituall , in this respect as well as in others , because it is that which works spiritually in us ; as paul was carnall , because he worked carnally : the places are cleare out of the . psal . and psal . . . the law of god is perfect , converting the soul . it is true , some understand the converting of the soul , to be as much as the reviving of it , as if the soul were ready to swoune away through the troubles thereof ; but then the law doth revive them again , and comfort them : and according to this sense they take law largely , as comprehending the gospell ; but it seemeth hard to expound that phrase in such a manner . that therefore which the antinomian doth object against this place is , that the hebrew word doth signifie largely any doctrine , and so may comprehend the whole word of god. but this is easily answered : first , the same hebrew word is commonly used for the law , when it is strictly taken ; and therefore this maketh more against them , that the word [ law ] in the hebrew notion doth not signifie such a commanding , terrifying and damning thing , but rather that which doth instruct and informe . but , in the next place , grant that the word hath such an extensive and comprehensive sense , yet it doth not exclude the morall law , but doth alwayes include . can any man think , when david commends the law of god , that he meaneth all the word of god but the morall law , when indeed that was the greatest part of it at that time ? . that opinion , which would make christ not take an instrumentall way for the conversion of men in his first sermon , wherein he was very large , that must not be asserted ; but to hold that the preaching of the law is not a medium to conversion , must needs be to say , that christ did not take the neerest way to convert his hearers ; for if you consider that sermon , it 's principally spent in the opening of the morall law , and pressing the duties thereof : and how can we thinke , but that our saviour judged this profitable and soul-saving matter ? nor can i see , why it should be said to be only the occasion , and not medium , if powerfully set home by gods spirit . . if the law of god have that objectively in it , that may work exceedingly upon the heart , when set home by gods spirit , then it may be used instrumentally as well as the gospell ; but it hath objectively such a nature in it : which doth appeare by davids approving and delighting in gods law : by paul. rom. . who delighted in the law of god. when therefore a minister setteth forth the lovely purity and excellency of the matter of the law , how it resembleth the nature of god , why may not the spirit of god , in the exercise hereof , raise up the heart and affections to be more and more in love with it ? if the heathen said of vertue , that if it could be seen with corporall eyes , the beauty thereof would ravish men : how much more may this be true of the purity and holinesse of the law ? . if the ceremoniall law , the sacraments and sacrifices were blessed by gods spirit , while they were commanded to be used for the strengthening and increase of grace , notwithstanding the deadly nature of them now ; then the morall law may also be blessed by god for spirituall effects , seeing it standeth still in force . let the use then of this be , by way of admonition , that in stead of disputing about or against the law , that we would pray to have the savory benefit and fruit of it in our souls . urge god with that promise of writing his law in our heart : be thou so farre from being an antinomian , that thou hast thy heart and life full of this holy law of god : not that the matter of the law can be the ground of thy justification , but yet it is thy sanctification . what is regeneration , but the writing of the morall law in thy heart ? this is that image of god , which adam was created in . oh therefore that we could see more of this holy law in the hearts and lives of men , that the law of god might be in mens mindes inlightning them , in their wils and affections inflaming , and kindling of them . lectvre xxi . rom . . . do we then make void the law through faith ? god forbid : but we rather establish the law. i shall in the next place discusse that famous question , about the abrogating of the morall law : only i must answer to some objections that are made against the former position , that the law may be used by god in the preaching of it to mans conversion , in the sense explained : which , if not attended unto , may make the assertion seem harsh , and incredible . but before i answer the objections , let us consider a great mistake of the antinomian author , assert . of grace , pag. . where he makes the very ground , why they are charged with antinomianisme , to be , because they do not hold the law to be used by god instrumentally for the conversion of men . certainly this is a great mistake , for there are many learned men , who hold the work of the law by the power of gods spirit to be no more then preparatory ; yet for all that , do peremptorily maintain the use and the obligation of the law in respect of believers . therefore they are not in this respect condemned for that errour . another consideration that i will propound is this , that the work of conversion is not wrought totally in a man without the gospel : for , as i told you , now in the preaching of the word there is not meere law , nor meer gospel , but they are to be composed and to be made helpfull to each other ; and also , whatsoever benefit or effect we get in the hearing , preaching , or meditating upon the law of god , it is to be attributed unto the convenant of grace in christ . and therefore all these places , which attribute conversion and holinesse to the gospel , do not at all make against my assertion ; for the question is not , whether by the power of the law we come to obey the law ; but , whether grace may not use the precepts , or law preached , for the inflaming of our affections so in love with the things commanded , that we are thereby made more holy . and thus i interpret those authors that deny the law to be instrumentall to holinesse , that is , not animated by gods spirit , or seperated from it . i come therefore to consider of those places which are brought against this truth delivered : i shall not take all , because one answer may serve for many , they being built upon the same ground . and , first the state and question is obscurely propounded by him ; for thus he saith , [ the promise , or the gospel , and not the law , is the seed or doctrine of our new birth . ] assert . of grace , pag. . now here are ambiguities ; as first , the promise or gospel , for by this he seemeth to decide a great question , that whatsoever is a promise in the scripture , that belongs to the gospel ; and whatsoever is not that , but a command or threatning , that belongs to the law : whereas this needs a great discussion . . the state of the question is not about the gospel , or the law , as they are both a doctrin in the scripture : but about the spirit of god , working by one or the other ; and the not attending to this , makes the argument so confounded . . he saith it 's not the seed of the new birth ; whereas conversion or regeneration is made the writing of the law in the heart : and mat. . the word of god in generall is compared to seed sowne , that brings forth different fruit ; as was said before : but to let this passe . the first instance that is brought , cometh from john . v. . sanctifie them through thy truth , thy word is truth . where , saith the authour , to sanctifie , is to seperate any thing from a common use , and to consecrate it to god : and , applied here to man includeth two things ; . justification by the communication of christs perfect holinesse , whereby the believer is presented holy and without blame to god. . an inward renewing , & changeing , purifying the heart and life by degrees , &c. pag. . i answer . . the word sanctifie , when applied to men , doth not only signifie justification , or renovation , but setting apart to some peculiar office and charge : and there are learned men who take this to be the meaning of christs prayer here ; that as the priests and levites , who were to enter into the sanctuary , did first wash their hands and feet , being also cloathed with goodly garments : so the apostles are here prayed for by our saviour , that they may be fitted for their great charge . and thus chrysostome : you have a parallel place jer. . , before thou camest forth out of the womb , i sanctified thee , and i ordained thee a prophet unto the nations . and this exposition is confirmed by the manner 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in truth ( so they reade it , & mention not the particle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is not in some copies ) so that they take it as an expression opposing the sanctification of the priests , which was by legall types and shadowes . but that which doth especially confirme this exposition , seemeth to be the two verses following , as thou hast sent me into the world , so have i also sent them into the world , and for their sakes i sanctifie my selfe , that they also may be sanctified through the truth . now sanctification as it comprehends justification and renovation , cannot be applied to christ : but it must signifie the segregating and setting apart himselfe for the office of the mediatour . besides , if sanctification do here include justification , how , by the antinomian principle , can our saviour pray for the justification of those , who are already justified ? but in the next place , grant that interpretation , of sanctification for renovation , how doth this prove that the law is not used instrumentally ? for our saviours argument is universall , thy word is truth . and may not this be affirmed of the law , as well as the gospel ? doth not david , speaking of the law , call it pure , and cleane , that is true , having no falshood in it ? yea , it is thought probable by a learned man , that this speech of our saviours is taken out of psal . . . where are these words expresly , thy law is the truth : where the word law cannot exclude the morall law , though it may include more . the next instance is tit. . ver . . . for the grace of god that bringeth salvation , hath appeared to all men , teaching us , that denying ungodlinesse , and wordly lusts , &c. i answer , all this may be granted , and nothing makes against this opinion : for none deny the gospel , to be the instruments of holinesse : but is not here a contradiction ? the author before made the gospel and a promise all one , whereas here it doth command holinesse and godlinesse . is not this , with the papists , to make the gospel a new law ? let him reconcile himselfe . in the next place , he doth ambiguously put into the argument , the word effectually which is not in the text ; for , although god doth by his grace in the gospel effectually move those that are elected to godlinesse ; yet scripture , and experience sheweth , that where the grace of the gospel hath appeared , thus teaching men , yet all are not effectually turned unto holinesse from their wordly lusts . besides , the argument may be retorted upon him : what word teacheth to deny all ungodlinesse , that sanctifieth , instructeth , but the law doth so , insomuch that the psalmist saith , psal . . a young man whose lusts are strongest , and temptations most violent , may be cleansed by attending thereunto : only you must alwayes take notice of the preheminency of the gospel , above the law ; for the law could never have any such good effect upon the heart of man , were it not for the gracious promise by christ : therefore all the godly men in the old testament , that received benefit by the morall law , in studying of it , and meditating upon it , did depend upon the gospel , or the grace of god in christ , as appeareth by david , praying so often , to be quickned by gods law. and here , by the way , let me take notice of a remarkable passage of peter martyr in his comment on the . chapter of the epistle to the rom. ver . . where , speaking of the great commendation the psalmist gives the law of god , that it converts the soul , ( and we may adde those places , of inlightning the minde , that they cleanse a mans way , &c. ) he maketh this question , whether the law doth ever obtain such effects or no ? and he answereth affirmatively , that it doth , but then when it 's written not in tables , but in the hearts and bowels of men : so that he conceiveth the spirit of god doth use the law instrumentally , so that he writeth it in our hearts . and this is all we so contend for . a third and last instance out of scripture , in answering of which all is answered , is from gal. . . received ye the spirit by the works of the law ; or by the hearing of faith ? that is , of the gospel , the doctrine of faith . in the opening of this text , we must take heed of three errours : first , of those , who hold we have faith first , before we have the spirit ; for how can we come to have faith ? by our own reason and will ? this were to make it no work of god. the apostle therefore certainly speakes of the increase of the graces of the spirit ; for it is well observed by peter martyr , that in causes and effects , there is a kinde of circle , one increasing the other : as the clouds arise from the vapours , then these fall down again , & make vapours ; only you must acknowledge one first cause , which had not it's being from the other , and this is the spirit of god , which at first did work faith . the second errour is of the papists , that maketh this difference between the law and the gospel , that the same thing is called the law , while it is without the spirit ; and when it hath the spirit , it is called the gospel ; this is to confound the law and gospel , and bring in justification by works . the third is of the socinian mentioned afterwards . these rocks avoided , we come to consider the place : and first i may demand , whether any under the old-testament were made partakers of gods spirit , or no ? if they were , how came they by it ? there can be no other way said , but that god did give his spirit in all those publique ordinances unto the beleeving israelites ; so that although they did in some measure obey the law , yet they did it not by the power of the law , but by the power of grace . again , in the next place , ( which hath alwaies much prevailed with me ) did not the people of god receive the grace of god offered in the sacraments at that time ? we constantly maintain against the papists , that our sacraments and theirs differ not for substance . therefore in circumcision and the paschall lamb , they were made partakers of christ as well as we : yet the apostle doth as much exclude circumcision , and those jewish ordinances from grace , as any thing else . therefore that there may be no contradiction in scripture , some other way is to be thought upon , about the exposition of these words . some there are therefore that doe understand by the spirit , the wonderfull and miraculous works of gods spirit : for this was reserved till the times of the messias , and by these miracles his doctrine was confirmed to be from heaven ; and to this sense the fifth verse speaketh very expresly : and beza doth confesse , that this is the principall scope of the apostle , though he will not exclude the other gracious works of gods spirit : and if this should be the meaning , it were nothing to our purpose . again , thus it may be explained , as by faith is meant the doctrine of faith , so by the works of the law , is to be understood the doctrine of the works of the law , which the false apostles taught , namely , that christ was not enough to justification , unlesse the works of the law were put in as a cause also . and if this should be the sense of the text , then it was cleare , that the galathians , were not made partakers of gods spirit , by the corrupt doctrine that was taught them alate by their seducers , but before , while they did receive the pure doctrine of christ : and therefore it was their folly , having begun in the spirit , to end in the flesh . this may be a probable interpretation . but that which i shall stand upon , is this , the jewes and false apostles they looked upon the law as sufficient to save them without christ : consider rom . , , . or when they went furthest , they joyned christ , and the observance of the morall law equally together for justification and salvation : whereas the law separated from christ , did nothing but accuse and condemne , not being able to help the soul at all . therefore it was a vain thing in them , to hope for any such grace , or benefit as they did by it . so that the apostles scope is , not absolutely to argue against the benefit of the law , which david and moses did so much commend , but against it in the sense , as the jewes did commonly dote upon it , which was to have justification by it alone ; or at the best , when they put the law and christ together . now both these we disclaime , either that god doth use the law for our justification ; or that of it selfe , it is able to stirre up the least godly affection in us . more places of scripture are brought against this , but they will come in more fitly under the notion of the law as a covenant . thus therefore i shall conclude this point , acknowledgeing that many learned and orthodox men speake otherwise , and that there is a difficulty in clearing every particular about this question : but as yet that which i have delivered , earrieth the more probability with me ; and i will give one text more , which i have not yet mentioned , and that is act. . . where the morall law that moses is said to receive , that he might give the isrealites , is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the lively oracles ; that is , not verba vitae , but verba viva & vivificantia , so that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is as much as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , giving life : not that we could have life by vertue of any obedience to them ; but when we by grace are inabled to obey them , god , out of his mercy , bestoweth eternall life . let me also adde this , that i the rather incline to this opinion , because i see the socinians , urging these places , or the like , where justification and faith is said to be by christ , and the gospel , that they wholly deny that any such thing as grace and justification was under the law , and wonder how any should be so blind as not to see , that these priviledges were revealed first by christ in the gospel under the new covenant ; whereas it is plain , that the apostle instanceth in abraham and david , ( who lived under the law as a schoole master , ) for the same kinde of justification as ours is . and thus i come to another question , which is the proper and immediate ground of strife between the antinomian and us , and from whence , they have their name ; and that is , the abrogation of the morall law : and howsoever i have already delivered many things that do confirme the perpetuall obligation of it ; yet i did it not then so directly , and professedly , as now i shall ; the text ( i have chosen ) being a very fit foundation to build such a structure upon . i will therefore open the words and proceed as time shall suffer . the apostle paul , having laid down in verses preceding , the nature of justification , so exactly , that we may finde all the causes , efficient , meritorious , formall , instrumentall and finall described ; as also the consequent of this truth , which is the excluding of all self-confidence and boasting in what we do ; he draweth a conclusion or inference , ver , . and this conclusion is laid down first affirmatively and positively , [ a man is justified by faith , ] the phrases 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , are all equivalent with the apostle : and then , to prevent all errours and cavils , he doth secondly lay it down exclusively without works . and this proposition he doth extend to the jews and gentiles also from the unity or onenesse of god ; which is not to be understood of the unity of his essence , but will and promise . now when all this is asserted , he maketh an objection ( which is usuall with him in this epistle ; ) and he doth it for this end , to take away the calumny and reproach cast upon him by his adversaries , as one that would destroy the law. the objection then is this , ( propounded by way of interrogation , to affect the more , ) do we make voyd the law ? 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; the apostle used this word in this chapter , ver . . and it fignifieth to make empty and voide , so that , the law shall be of no use , or operation . now to this , the apostle answereth negatively , by words of defiance and detestation , god forbid : so that by this expression you see how intolerable that doctrine ought to be unto the people of god , that would take away the law. and the apostle doth not only defie this objection , but addeth , we establish the law , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a metaphor from those that do corroborate and make firm a pillar , or any such thing that was falling . it hath much troubled interpreters , how paul could say , he established the law , especially considering those many places in his epistles which seem to abrogate it . some understand it thus , that the righteousnesse of faith , hath it's witnesse from the law and prophets , as ver . . in this chapter ; so that in this sense they make the law established , because that which was witnessed therein , doth now come to passe . even as our saviour said moses did bear witnesse of him . but this interpretation doth not come up to the apostles meaning . those that limit this speech to the ceremoniall law , do easily interpret it thus : that the ceremonies and types were fulfilled in christ ; who , being the substance and body , they are all now fulfilled in him . but the apostle comprehends the morall law under the word [ law. ] the papists they make the gospel a new law , and they compare it with the old law having the spirit , as two things differing only gradually ; so that they say , the old law is established by the new , as the childhood is established by elder age : which is not by abolition , but perfection . that which i see the orthodox pitch upon , is , that the law is established three wayes by the gospel . first , whereas the law did threaten death to every transgressor , this is established in christ , who satisfied the justice of god. secondly , in that the law requireth perfect obedience , this is also fulfilled in christ . now this is a matter worth discussion , whether the righteousnesse we are yet justified by , be the righteousness of the law. for those learned men , that are against the imputation of christs active obedience , they urge this argument , which seemeth to carry much strength with it : that if christs active obedience be made ours , and we justified by that , then are we still justified by the works of the law , and so the righteousnesse of faith and works is all one ; faith in us , and works in christ . if therefore active obedience be made ours , ( as i conceive the truth to be in that doctrine ) then we may easily see the law is established . thirdly , but lastly , which i take to be the truth , and austin heretofore interpreteth it so , the law is established , because by the gospel we obtain grace in some measure , to fulfill the law ; so that we still keep the law in the preceptive and informative part of it : and do obtain by faith in christ , obedience in some degree to it ; which obedience also , though it be not the covenant of grace , yet is the way to salvation . lectvre xxii . rom . . . do we then make void the law ? this text is already explained ; and there are two observations do naturally arise from it , as first , that it is an hard thing so to set up christ & grace , as not thereby be thought to destroy the law. thus was paul misunderstood by some ; and so the antinomians , not rightly understanding in what latitude the orthodox in their disputations against popery did oppose the law to the gospel , were thereby plunged into a dangerous errour . but on this point i will not insist . the second doctrine is that which i intend , namely , that the doctrine of christ and grace in the highest and fullest manner , doth not overthrow , but establish the law. and this doctrine will directly lead us to lay our hands on the chiefe pillars of that house , which the antinomians have built . the question then at this time to be discussed is , whether the law be abrogated or no by christ , to the beleevers under the gospel . and this question i will answer by severall propositions that may conduce to the clearing of the the truth : for it would seem , as if the scripture held out contradictions in this point . in my text it 's denyed , that the apostles do 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 make void the law ; yet cor. . . the apostle speaking of the law hath this passage , [ if that which be done away , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] where the word is expresly used , that yet here is denied : so ephes . . christ is described [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] that maketh voyd the hand-writing against us . and in that place the apostle useth the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 when yet mat. . he denied that he came 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to dissolve the law. grave therefore and serious is chemnitius his admonition , in all other things , generall words beget confusion , and obscurity ; but in the doctrine of the abrogation of the law they are very dangerous , unless it be distinctly explained , how it is abrogated . in the first place therefore consider , that about a law there are these affections ( if i may call them so ; ) there is an interpretation , a dispensation , or relaxation : and these differ from an abrogation ; for the former do suppose the law still standing in force , though mitigated ; but abrogation is then properly , when a law is totally taken away . and this abrogation ariseth sometimes from the expresse constitution at first , which did limit and prescribe the time of the lawes continuance : sometimes by an expresse revoking and repealing of it by that authority which made it : sometimes by adding to that repeale an expresse law commanding the contrary . now it may be easily proved , that the ceremoniall , and judiciall lawes they are abrogated by expresse repeale . the judiciall law pet. . . where they are commanded to be subject to every ordination of man : and this was long foretold genes . . . the law-giver shall be taken from judah . the ceremoniall law that is also expresly repealed act. . and in other places : not that these were ill or that they did come from an ill author ; but because the fulnesse and substance of them was now come , of whom the ceremonies were a shadow . yet still you must remember , that while they were commanded of god , they were the exercises of faith and piety , & god did dispense grace in the use of them ; only they were beggarly and empty to such who trusted in them , & neglected christ . nor doth this assertion contradict that of the apostle , ephes . . . where he cals those ordinances enmity , and decrees against us : for those ceremonies may be considered two wayes ; first as they were signes of gods grace and favour : and secondly as they were demonstrative of a duty , which we were tyed unto , but could not performe , and in this sense all those purifications and cleansings were against us . thus we see these lawes in every consideration made void ; so that it is not now an indifferent thing to use them , though we would not put our trust in them , but sinfull . hence i cannot see how that of luther is true upon gal. . who sath , he beleeveth , that if the jewes beleeving had observed the law and circumcision in that manner which the apostles permitted them , that judaisme had yet stood , and that all the world should have received the ceremonies of the jews . in the second place , if we would speake exactly and properly ; we cannot say , in any good sense , that the morall law is abrogated at all . it is true indeed , our learned writers shew , that the law in abrogated in respect of justification , condemnation , and rigour of obedience ; all which i shall instance in afterwards : but if a man would speake rigidly , he cannot say , it is abrogated wee may say , it 's mitigated , as to our persons , though christ our surety did fully undergoe its : for if god had taken away the law so , that man nor his surety had been under the curse of it , or should have obeyed it , then had it been properly abrogated : whereas now , seeing our surety was bound to satisfie it , and perfectly to obey it and we still obliged to conforme unto it , we cannot so properly in the generall say , it was abrogated . therefore we may more properly say that there is a change and alteration in us towards the law , then that the law is changed or abrogated . hence observe , though the apostle denyeth that he doth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 make void the law , yet he useth this expression rom. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 we are freed or abrogated from the law , rather then that is abrogated . thus it is , if we would speake properly : yet , because the satisfaction and obedience is by christ , and not by us , we may say , that it is abrogated to us , so that we may not look for remission of sins , or justification by it . but you must still distinguish , when we speake of the law , some parts of it from the whole : some parts of the law may be abolished , and yet not the whole nature of it : for there is in the law these parts ; first the commands . secondly , the promises of life to him that doth them ; and thirdly , the threatnings of eternall wrath to him that faileth in the least . now the morall law , though it be abrogated in respect of the two later to a beleever , yet in respect of the former it doth still abide ; yea , and will continue in heaven it selfe . and we have already proved against the antinomians , that one part of the law may abide , when the other doth not . the third proposition , those that say the law is abolished as it is foedus , but not as it is regula ; say true . the law may be considered as it is a covenant , or as it is an absolute rule , requiring conformity unto it : now it may be truly granted , that the law is abolished in the former notion , though not in the later ; only in expressing this covenant there is difference among the learned : some make the law a covenant of works , and upon that ground that it is abrogated : others call it a subservient covenant to the covenant of grace , and make it only occasionally , as it were , introduced , to put more luster and splendour upon grace : others call it a mixt covenant of works and grace ; but that is hardly to be understood as possible , much lesse as true . i therefore think that opinion true , as shall be hereafter shewed , that the law given by moses was a covenant of grace ; and that god did not . since man fallen , ever transact with him in any other covenant , but that of grace : though indeed this covenant of grace did breake out more clearly , in succession of ages , according to the wise dispensation of gods good pleasure . so then the law , as a covenant , though of grace , is abrogated , because though there be still the same essence of the former and later covenant , yet the administration of the former is altogether antiquated . this fully appeareth in heb. . , . and again , heb. . , . whosoever therefore expects life and justification by the law , he sets up the covenant of works again . nor is it any advantage to say , these workes are the workes of grace , and wrought by christs spirit ; for still if we were justified by doing whatsoever the works were , yet it would be in such a way as adam was , though with some difference . we therefore doe desire to lift up our voices , as vehemently as any antinomian , against self justiciaries , against pharisaicall , popish , formall men , that say unto the good workes they doe , these are thy christ , these are thy jesus , oh my soul . in matter of justification , we would have all of pauls spirit , to know nothing but christ crucified , to account all things dung and drosse we desire to bewaile , and abundantly to bewaile the little need and want that people feel of christ in all their duties . we are troubled , that any can be quiet in their duties , and performances ; and do not cry out , none but christ , none but christ . all this we pleade for , and preach ; only we hold the law as a rule still to walk by , though not a covenant of works to be justified by . . the antinomian distinction of the law abolished as a law , but still abiding in respect of the matter of it , is a contradiction . this is a rock , that the adversary hath daily refuge unto . the law ( saith the antinomian ) in the matter of it , so farre as i know , was never denyed to be the rule , according to which a beleever is to walk and live : therefore i take the contrary imputation to be an impudent slander . asser . of grace , pag. . but to reply , if they hold the matter of the law to be a rule , how can they shelter themselves from their own argument ; for if the matter oblige then when a beleever walketh not according to his duty , he sinneth , and , to sinne the curse is due : so that this evasion will no wayes helpe them , for still an obligation or bond lyeth upon them , which , if broken they are made obnoxious unto the law , of god. again , to say the matter of the law bindeth , but yet not as a law , is a meere contradiction ; for what is a law , but such an object held forth by the command and will of a superiour ? then i demand whether [ love to god ] being the object , or matter held forth , have not also gods will passing upon it that it should binde . according to the antinomian assertion , it should be true , that love to god should binde us , because the matter it selfe is good ; but nob ecause god willeth us to love him : nay , they must necessarily deny the will of god obliging us in the law to love him ; for a law is nothing but the will of the law-giver , that such things should be obeyed , or avoided . and if there were any colour for that distinction between the matter of the law binding , and not the law , it would only hold in that matter which is perpetually and necessarily good ; as . to love god , to honour parents : but in that matter which is only good by some positive divine institution ; as , keeping of the lords day , there we must say , that the law binds , as a law , and not meerly from the matter of the law. . the law is no more abrogated to a beleever under the old-testament , then to one under the new. this assertion will much discover the falsenesse of the adversaries opinion : for they carry it , as if the law were abrogated only to the beleevers under the gospell . now how can this ever be made good ? for either they must deny that there were any beleevers under the old-testament ; or , if there were , then they are freed from the law as much as any now . indeed if you take the law for the whole administration of the covenant in the old testament , we grant that it was pedagogicall , and more servile ; so that a beleever under the old-testament , did not meet with such cleare and evident dispensations of love as a beleever under the gospel : yet in respect of justification and salvation , the law was the same to them as to us , and to us as to them . we do not deny but that the administration of the later covenant is farre more glorious then that of the former , and that we enjoy many priviledges which they did not then : but whatsoever is necessary and essentiall to justification or salvation , they were made partakers of them , as well as we . the ordinary resemblance of theirs , and our happinesse ; is by those two , spoken of numb . . . that bare upon the staffe the cluster of grapes from the land of canaan , if then we speake of the law in regard of the essentiall parts of it , which are directing , commanding , threatning , promising life upon perfect obedience : these are either still equally in power , or else equally abrogated unto all beleevers , whether under the old or new testament . let them therefore consider whether the arguments against beleevers subjection under the new testament , be not also equally as strong against those that are under the old. therefore it is wild divinity of an antinomian ( in chap. . of the honey-combe of free justification : ) who makes three different estates of the church : one under the law , and another under john baptist , and a third under the gospel . now he compareth these together , and sheweth how we under the gospel exceed those of the law that were godly : and among other things , there are two notorious falshoods ; as first , that god indeed saw sinne in the beleevers of the old testament , but not in those of the new. but how absurd and contradictory to the author himself is this assertion ? for was not that place which they so much urge [ god seeth not iniquity in jacob ] spoken of the church in the old testament ? and besides , if the godly were then in christ , doth it not necessarily follow by his principles , that god must see no sinne in them ? this i bring , not as if there were any truth in that opinion of god his seeing no sinne in beleevers , whether of the old , or new testament ; but only to manifest their absurd contradictions . the second difference he makes is , that god seeing sinne in those of the old testament , did therefore punish them and afflict them for sinne but he doth not this under the gospel . hereupon he sheweth , how moses for a word was strucken with death , and so jonah , uzzah , eli : these had sudden punishments upon them . hence also ( saith he ) came there terrible faimines upon them . now who seeth not how weak and absurd these arguments are ? for , doth not the apostle cor. . speaking of those under the new testament , that some were siok , and some did sleep , and that they were judged of the lord ? were not ananias and sapphira stricken dead immediately ? are there not famines , pestilence , and the bloudy warre upon men under the gospel ? besides , these assertions are contradictions to themselves : for if their arguments from gods law , and from christ prove the quite taking away of sin , and the punishments of it ; then it holdeth as firmly for all beleevers as for some . . the arguments of the antinomian for the greater part , which they urge do not only overthrow the use of it to beleevers , but also unbeleevers . this also is good to be attended unto ; for the apostle in many places , where he speaks of the law as a schoolmaster , and the continuance of it for a time , doth not speake comparatively of a beleever with an unbeleever , but of the state of the gospel , and the state of the old testament : so that , as a wicked man may not circumcise , or take up the sacrifices , so neither may he use the morall law , as commonly the jewes did , which was as distinct from christ , and as if that of it self were able alone to save . therefore i wonder why the antinomians bring many of their arguments to prove that a beleever is freed from the law ; for , certainly , most of those places will inferre , that unbeleevers also under the new testament are ; for , the apostle , for the most part , doth argue against that state of the church and administrations that were used formerly ; as in the cor. . when the apostle makes the administration of the law to be death , and of the gospell life . here he speaketh not of particular persons , but of the generall state under the gospel : so in gal. . and . chapters he argueth against the whole dispensation of the law , and makes it equally abrogated unto all . and it may probably be thought , that that famous expression of the apostle [ ye are not under the law but under grace ] is not only to be understood of every particular beleever ; but generally of the whole dispensation of the gospell under the new testament . . we will grant , that to a beleever the law is , as it were , abrogated , in these particulars : . in respect of justification . though , i say , mitigation might be properly here used , yet we will call it abrogation ( with the orthodox ) because to the godly it is in some sense so . and that which is most remarkable , and most comfortable , is , in respect of justification ; for now a beleever is not to expect acceptation at the throne of grace in himself , or any thing that he doth , but by relying on christ . the papists they say , this is the way to make men idle and lazy ; doing in this matt er , as saul did , who made a law that none should eate of any thing , and so jonathan must not taste of the honey . saul indeed thought hereby to have the more enemies killed ; but jonathan told him , that if they had been suffered to eate more honey , they should have been more revived and inabled to destroy their adversaries . thus the papists , they forbid us to eat of this honey , this precious comfort in christ , as if thereby we should be hindered in our pursuit against sinne , whereas indeed it is the only strength and power against them . . condemnation and a curse . thus still the condition of a beleever is made unspeakably happy , rom. . there is no condemnation : and , christ became a curse for us : so that by this means the gracious soul hath daily matter of incouragement , arguing in prayer thus : o lord , though my sins deserve a curse , yet christ his obedience doth not : though i might be better , yet christ needeth not to be better : o lord , though i have sinned away my own power to do good , yet not christs power to save . heb. . . you have a phrase there [ flying for arefuge ] doth excellently shew forth the nature of a godly man , who is pursued by sin as a malefactor was for his murder , and he runneth to christ for refuge : and so beza understands that expression of the apostle , phil. . . [ and be found in him , ] which implyeth the justice of god searching out for him , but he is in christ . now when we say , he is freed from condemnation , that is to be understood actually , not potentially : there is matter of condemnation , though not condemnation it selfe . . rigid obedience . this is another particular , wherein the orthodox declare the abrogation of the law : but this must warily be understood ; for christ hath not obtained at gods hands by his death , that the law should not oblige and tye us unto a perfect obedience : for this we maintain against papists , that it 's a sin in beleevers , they do not obey the law of god to the utmost perfection of it : and therefore hold it impossible for a beleever to fulfill the law : but yet we say , this mercy is obtained by christ , that our obedience unto the law , which is but inchoate and imperfect , is yet accepted of , in , and through christ : for , if there were only the law and no christ , or grace : it is not any obedience , though sincere , unlesse perfect , would be entertained by god : neither would any repentance or sorrow be accepted of , but the law strictly so taken , would deale as the judge to the malefactor , who being condemned by the law , though he cry out in the anguish of his spirit , that he is grieved for what he hath done , yet the law doth not pardon him . . it is not a terrour to the godly ; nor are they slavishly compelled to the obedience of it . and in this sense they are denied to be under the law : but this also must be rightly understood ; for there is in the godly an unregenerate or carnall part , as well as a regenerate and spirituall ; see rom. . , . with my minde i serve the law of god , but with my flesh the law of sin . now although it be true , that the law , in the terrible compelling part of it , be not necessary to him so far as he is regenerate ; yet , in regard he hath much flesh and corruption in him , therefore it is that the scripture doth use threatnings as so many sharpe goads to provoke them in the waies of piety . but what godly man is there , whose spirit is so willing alwayes , that he doth not finde his flesh untoward and backward unto any holy duty ? how many times do they need that christ should draw them , and also that the law should draw them ? so that there is great use of preaching the law even to beleevers still , as that which may instrumentally quicken and excite them to their duty . qui dicit se amare legem , mentitur , & nescit quid dicit : tàm enim amamus legem , quàm homicida carcerem , said luther : and this is true of us , so far as we are corrupt . he that saith he loveth the law , lyeth , and knoweth not what he saith , for we love the law , as a murtherer doth the gaol . . it doth not work , or increase sin in them as in the wicked . the apostle , rom. . . complaineth of this bitter effect of the law of god , that it made him the worse . the more spirituall and supernaturall that was , the more did his earnall and corrupt heart rage against it : so that the more the law would damm up the torrent of sinfull lusts , the higher did they swell . now , this sad issue was not to be ascribed to the law but to paul's corruption : as in the dropsie it is not the water or beere , if frequently drunk , that is to be blamed for the increase of the disease , but the ill distemper in the body . or as chysolologus explaineth it , serm. . the greatnesse of the light doth not blind , and hebetate the eyes ; for light was especially created of god for them ; but it is the infirmitie and weaknesse of the eyes , which are not able to endure such clearnesse : so the law which of it's selfe is holy and just , of fraile man requiring severe obedience , doth more and more overwhelme him : and in another place serm. . as the thorns that are by the axe cut downe , do more and more sprout out ; so do , corruptions , while cut off by the law , because they remain fixed in the root of us . now in the godly , because there is a new nature , and a principle of love and delight in the law of god wrought in him , his corruption doth not increase and biggen by the law , but is rather subdued and quelled : although sometimes , even in the godly , it may work such wofull effects : thus asa grew more enraged because reproved by the prophet for his wickednesse . and this also take notice of , that as the commandement of the law , so also the promises of the gospel , do only stirre up evill in the heart totally unsanctified . . it is abrogated in many accessaries , and circumstantials . even the morall law , considered in some particulars , is abrogated totally : as in the manner of writing , which was in tables of stone . we know the first tables were broken ; and what became of the last , or how long they continued , none can tell : and this makes paul use that opposition , cor. . . not in tables of stone , but in the fleshly tables of the heart : although this you must know , that the doctrine of the gospel , as written with inke and paper , doth no more availe for any spirituall working , then the law written in tables . therefore the apostle useth in that verse this phrase , [ not written with inke ] as well as [ not in tables of stone . ] and this is to be observed against the antinomians , who to disparage the law , may say , that was written in stones , what good can that do ? may we not also say , she doctrine of the gospel that is written in paper , and what can that do ? . but the law doth perpetually continue as a rule to them : which may thus appeare : . from the different phrases that the apostle useth concerning the ceremoniall law , which are no where applyed to the morall law. and these chemnitius doth diligently reckon up , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ephes . . . so again , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , heb. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 antiquare , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , senescere , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 evanescere , heb. . ult . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , abrogatio . heb. . . now , saith he , these words are not used of the morall law , that it is changed , or , waxeth old , or , is abrogated ; which do denote a mutation in the law ; but when it speaks of the morall law , it saith , we are dead to it , we are redeemed from the curse of it : which phrases do imply the change to be made in us , and not in the law. if therefore the antinomians could bring such places that would prove it were as unlawful for us to love the lord , because the morall law commands it , as we can prove it unlawfull to circumcise , or to offer sacrifices ; then they would see something for their purpose . . from the sanctification and holinesse that is required of the beleever , which is nothing but conformity to the law : so that , when we reade the apostle speaking against the law , yet that he did not meane this of the law as a rule , and as obliging us to the obedience thereof , will easily appeare : for when the apostle , gal. . . had vehemently informed them of their wofull condition who would be justified by the law , yet ver . . and . pressing them not to use their liberty as an occasion to the flesh , he giveth this reason , for all the law is fulfilled in one word , even in this , thou shalt love thy neighbour as thy selfe . what doth the apostle use contradictions in the same chapter ? presse them to obey the law , and yet reprove them for desiring to be under it ? no certainly , but when they would seek justification by the law , then he reproveth them : and when , on the other side , they would refuse obedience to the law , then he admonisheth them to the contrary . as for their distinguishing between the matter of the law , and the law , we have already proved it to be a contradiction . . in that disobedience to it is still a sin in the beleever : for there can be no sin , unlesse it be a transgression of a law , as the apostle john defineth sin . now then , when david commits adultery , when peter denyeth christ , are not these sins in them ? if so , is not davids sin a sin , because it is against such and such a commandement ? as for their evasion , it is a sin against the law as in the hand of christ , and so against the love of christ , and no otherwayes , this cannot hold ; for then there should be no sinnes , but sinnes of unkindnesse , or unthankfulnesse . as this law is in the hand of christ ; so murder is a sin of unkindnesse : but as it is against the law simply in it self , so it is a sin of such kind as murder , and not of another kinde ; so that the consideration of christs love may indeed be a great motive to obey the commands of god , yet that doth not hinder the command it selfe from obliging and binding of us , as it is the will of the law giver . but of this distinction more in it's place . . from the difference of the morall law , and the other lawes , in respect of the causes of abrogation . there can be very good reasons given , why the ceremoniall law should be abrogated , which can no wayes agree to the morall : as , first , the ceremoniall law had not for it's object that which is perpetuall , and in it self holinesse : to circumcise , and to offer sacrifice , these things were not in themselves holy and good , nor is the leaving of them a sin ; whereas the matter of the morall law is perpetually good , and the not doing of it , is necessarily a sin . i speak of that matter , which divines call morall naturall . can we thinke that to the apostle it was all one , whether a man was a murderer , adulterer , or chast and innocent ; as it was whether a man was circumcised , or not circumcised ? tertullian said well , lib. de pud . cap. . operum juga rejecta sunt , non disciplinarum , libertas in christo non fecit innocentiae injuriam , manet lex tota pietatis , sanctitatis &c. the burthens of the ceremoniall law are removed , not the commands of holinesse ; liberty in christ is not injurious to innocency . again , the ceremoniall law was typicall , and did shadow forth christ to come . now when he was come , there was no use of these ceremonies . and , lastly , the jewes and the gentiles were to consociate into one body , and no difference be made between them . now to effect this , it was necessary that partition-wall should be pulled down , for as long as that stood , they could not joyn in one . lectvre xxiii . rom . . . do we then make void the law ? yea , we establish it . i shall not stand upon any more arguments to prove the perpetuall obligation of the morall law , because this is abundantly maintained in that assertion already proved , that the morall law as given by moses , doth still oblige us . i come therefore to those places of scripture which seeme to hold forth the duration of the morall law for a prefixed time only ; even as the ceremoniall law doth . i shall select the most remarkable places , and , in answering of them , we shall see the other fully cleared . and i will begin with that , luke . . the law and the prophets were untill john. it should therefore seeme , that the law was to continue but untill johns time . i will not herestand to dispute whether john baptist was to be reckoned under the old testament , or the new ; only take notice that we cannot make a third different estate , wherein the covenant of grace should be dispensed , as an antinomian author doth : for our saviour seemeth fully to conclude , that he did belong to the old testament ; therefore he saith , the least in the kingdome of heaven is greater then he * : although in this respect he was greater then any of the prophets that went before him , that he did not prophesie of a messias to come , but pointed with his hand to him who was already come . and , as for the text it selfe , none can prove that the law was to be abrogated when john baptist came ; for , least any should by that expression think so , our saviour addeth , heaven and earth shall sooner passe away , then that one title should fall to the ground . therefore the meaning is , that the law , in respect of the typicall part of it , as it did shadow forth , and prefigure a christ , so it was to cease . therefore the law and the prophets are put together , as agreeing in one general thing , which is , to foretell of christ , and to typifie him : and this will be clearer , if you compare matth . . with this of luke , where it is thus set down , all the prophets and the law prophesied unto john : whereby it is cleare , that he speakes of the typicall part of the law ; yet not so , as if the ceremonies were then immediatly to cease , only from that time they began to vanish . the next place of scripture , is that famous instance , so much urged in this controversie rom. . . [ for you are not under the law , but under grace . ] now to open this , consider these things : . in what sense the apostle argueth against the law ; and what was the proper state of the question in those dayes . and that appeareth act. . . where you have a relation made of some beleeving jewes that were of the sect of the pharisees , who pressed the necessity of circumcision : and so would joyn the mistery of moses and christ together . now it seemeth , though the apostles in this councell had condemned that opinion , yet there were many that would still revive this errour ; and therefore the apostle in this epistle to the romans , and in that to the galathians doth reprove this false doctrine , and labour much against it . stapleton , and other papists , they think that the controversie was only about the ceremoniall law ; and this they do , to maintain their justification by the works of the law ; when wrought by grace . but , though it must be granted , that the doubts about keeping the ceremoniall law were the occasion of that great difference , and the most principall thing in question ; yet the apostle , to set forth the fulnesse of grace , and christ , doth extend his arguments and instances even to the morall law : for the jewes did generally think , that the knowledge and observation of the morall law without christ , was enough for their peace and comfort . that the apostle argueth against the law in their abused sense of it , is plain , because when he speaks of it in it's own nature , he commends it , and extols it . the jewes because they had the law given them in such a divine and glorious manner , attributing too much to themselves , thought by the obedience to this alone , without christ , to be justified , as appeareth rom , . . hence the apostle speaketh against it in their sense , looking for justification by it ; as if a learned man confuting some philosophers , which do hold that the second causes do work by their own proper strength , without any concourse of god ; he must in his arguments , suppose such a power of the second cause , which the adversary pleadeth for in his minde , and in expressions sometimes , yet none can gather from that , therefore there is such a power in the second causes . and if they could perswade themselves , that the externall performing of the ceremoniall law was enough to make them acceptable with god , though they lived in grosse disobedience to the morall law , ( as isai . . & alibi , it many times appeareth they did ) how much more , when they lived a life externally conformable to the morall law ; must they needs be secure of their favour with god ? and in this sense it is , that the apostle speaks seemingly derogatory to the law , because they took it without christ : even as he calleth the ceremonies beggerly elements , when yet we know , they were signes of an evangelicall grace . . that the apostle useth the word [ law ] in divers senses , which hath been the occasion of so much difficulty in this point . now in most of those places , where the law seemeth to be abolished , it is taken in one of these two senses : either , first synecdochically , the law put for part of the law : to wit , for that part which actually condemneth , and accuseth ; as when the apostle saith , [ against such there , is no law : ] here he speaketh as if there were nothing in a law but condemnation ; whereas we may say , a law is for a thing by way of direction and prescription , as well as against a thing by accusation . or , secondly , the word [ law ] is put for the ministery of moses , which dispensation was farre inferiour unto the ministery of the gospel : and in this sense , the apostle doth much use it in the epistle to the galathians , and in the epistle to the hebrewes . so that here is a continuall mistake , when the antinomians heap place upon place , which seem to abolish the law , and do not first declare what law , and in what sense those places are to be expounded . . consider these phrases , of the law , without the law , under the law , and in the law. without the law is two wayes : first , he is without the law , that is , without the knowledge and understanding of it . thus the gentiles are without the law : and secondly , without the law , that is , without the sense and experience of the accusing and terrifying power of the law ; and thus paul , rom. . said , when the law came , he died . now the godly , though they are denied to be under the law , yet they are not said to be without the law ; for if the morall law were no more obliging beleevers now , then it was heathens or gentiles before they ever heard of it , both in respect of knowledge and observation of it , then might beleevers be said to be without the law : and to this without the law , is opposed , in the law , rom. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the vulgar in legem : beza cum lege ; it signifieth those that do enjoy the law , and yet sinne against it . and much to this purpose is that phrase of the law , rom. . . which sometimes is as much as , of the circumcision , to wit , those that are initiated into the ministery of moses : but in other places it signifieth as much as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the opposite to it is , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as in this . of the rom. and ver . where the apostle declaring that the promise made to abraham was not of the law , he cannot meane the law of moses , for all know , that was long after ; but he meanes what 's done in obedience to the morall law so farre as it was then revealed . the apostle useth also another phrase , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by the law ; which is to be understood in this sense , by works done in conformity to the law : and in this sense the apostle urgeth , that righteousnesse , or the promise , are not by the law : but all the difficulty in this controversie is about the phrase , under the law : therefore take notice , . there is a voluntary being under the law , as christs was ; and there is to be under it in an ill sense . a voluntary and willing obedience unto the law , is acceptable : and thus the apostle . cor. . . the apostle saith , he was made to some as under the law , though there indeed he saith 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but that is added because of the ceremoniall part of the law. therefore he calleth himselfe excellently , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , though a godly man be not properly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . yet he is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and he addeth to christ , lest they should think that he spoke of the whole law , the ceremoniall part of it which was abolished by christ ; so that a godly man in a well explained sense , may be said to be under the law. aquinas comment . ad cap. . v. . hath this distinction , a man may be under the law , or subjected to it , two wayes , first , willingly and readily , as christ . secondly , unwillingly & by way of compulsion , when not out of love but feare , men do obey the law & this is sinful , in the former sense all beleevers may be said to be under the law but yet , because the apostle useth it for the most part in an ill sense , as here in the text , and in that place , tell me , ye that desire to be under the law , ( though law there be used for the whole ministery of moses , and not of the morall law ) let us consider in what sense this is denied to the godly . . that interpretation of some , though of solid judgement , who make the phrase [ not to be under the law ] to be as much as , not under the curse of the law ; or , not obnoxious to the guilt by it , seemeth not to agree with the context . i know this is generally received as the sense of the place ; and there is this argument urged for it , because the apostle maketh an objection from hence ; shall we sinne because we are not under the law , but under grace ? therefore it should seem that the law is taken for the condemning power of it , and grace for pardoning and free justification : but because the apostle is here speaking of sanctification , both in this chapter , and the chapter following , i preferre beza's interpretation , which makes the being under the law , to be the same in sense with , under sin ; for the apostle , speaking of himselfe as carnall , chap. . saith , that the law wrought in him all manner of evill : and this indeed is the work of the law in every unregenerate man ; so that the more the law is applyed to him , the more doth his corruption break forth . now then this is the apostles argument , let not sin reign in you , for now you are not under the law stirring up sin , and provoking it in you , but under grace ; not justifying or pardoning , as properly and immediately meant here ( though they were under that also ) but sanctifying and healing . and the apostle maketh the objection following [ what then , shall we sin , because we are not under the law ? ] because the phrase was ambiguous , , and might be thought to have such a sense , as the libertines make it to have , to wit , to do every thing as we please without any controule by any law : and in this explication , we shall see a sweet harmony in the context . the third instance is rom. . especially in the beginning of the chapter : but the answer to the former objection , will also cleare this , because the apostle continueth in the same matter , explaining what it is to be under the law , by a similitude from a wife married to an husband , who is bound to him so long as he liveth , but when he dyeth , she is free . now in the reddition of the similitude , there is some difference among commentators : but i take it thus , sin , which by the law doth irritate and provoke our corruptions , that is the former husband the soul had , and lusts they are the children hereof ; but when we are regenerated , then christ becomes the husband of the godly soul : so that they are deceived who make the morall law the husband , but sin is properly the husband : and if you will say the morall law , you must understand it in this sense only , as it doth inflame the heart to all evil ; therefore the apostle ( as is well observed by the learned ) doth not say , the law is dead , but , we are dead ; for indeed the law is never so much alive as in the godly , who do constantly obey it , & live accordingly to it . this will also serve for that place , gal. . . if ye be led by the spirit , ye are not under the law ; that is , under the law forcibly compelling . austin distinguisheth of four states of men ; those who are ante legem , and these commit sin without knowledge of it : sub lege , and these commit it with some fighting , but are overcome ; sub gratia , and these do fight and shall overcome : and sub pace , these we may make to be those in heaven . lectvre xxiiii . deut. . . and he declared unto you his covenant , which he commanded you to performe , even ten commandements , &c. i have already handled the law as it is a rule , and now come to consider of it as a covenant , that so the whole law may be fully understood . i shall not be long upon this , though the matter be large and difficult , though the subject be like the land of canaan , yet there are many gyants , and great objections in the way . i will rather handle it positively , then controversally ; for i do not finde in any point of divinity , learned men so confused and perplexed ( being like abrahams ram , hung in a bush of briars and brambles by the head ) as here . that i may methodically proceed , observe the context of this verse , and the scope , moses being to perswade the people of israel to obedience of the law , useth severall forcible arguments . as , ver . . the good and profitable issue thereof , which is to live and possesse the land , not as if this mercy were only temporall , but by this was represented eternall life in heaven . a second argument is , from the perfection of it , that nothing may be added to it , or detracted from it . the third argument is , from the great wisdome and understanding they shall hold forth hereby to all other nations , there being no people under the sun , that had such holy and perfect lawes as they had , and if that be true of bernard , sapiens est cui res sapiunt pro ut sunt , he is a wise man to whom things do taste and relish as they are divine and holy things , as holy ; earthly things , as earthly and fading ; then certainly , by this law of god , there was true wisdome prescribed . other arguments moses doth bring , as , the great authority god put upon the law , the great mercy in giving it to them rather then another nation . and the verse i have read belongs to that argument which proveth the dignity and glorious authority of the law , from the manner of delivering it : which law he declareth to us by the name and title of a covenant . now this take notice of , that the word covenant ( to omit other significations ) is taken sometimes syecdochially , for part of the covenant , as it is here in these words . the doctrine i will insist upon , is , that the law was delivered by god on mount sinai in a covenant way : or , the law was a covenant that god made with the people of israel . this will appeare in that it hath the name of a covenant , and the reall properties of a covenant . . the name of a covenant . king. . . because they obeyed not the voyce of the lord their god , but transgressed his covenant , and all that moses , the servant of god , commanded . deut , . . if there be found any — that hath wrought wickednesse — in transgressing the covenant , which was the ten commandements , as appeareth ver . . and more expresly , chro. . . in it have i put the arke wherein is the covenant of the lord , that he made with the children of israel . yea , if we would speake exactly and strictly , the books of moses and the prophets cannot be so well called the old covenant , or testament ; as this doctrine that was then delivered on mount sinai , with all the administrations thereof ; as appeareth . heb . & chap. . even as when the apostle saith , cor. . . god hath made us able ministers of the new testament , he doth not meane the writings , or books , but the gospel , or covenant of grace . take but one place more , where the law is called a covenant , and that is jer. . , , . . in the next place you may see the reall properties of a covenant , which are a mutuall consent and stipulation on both sides : see a full relation of this . exod , : . from the . v. to the th . the apostle relateth this history , heb. . wherein learned interpreters observe many difficulties : but i shall not meddle with them . in the words quoted out of exodus , you see these things which belong to a covenant : first , there is god himselfe expressing his consent and willingnesse to be their god , if they will keep such commandements there and then delivered to them ver . . secondly , you have the peoples full consent , and ready willingnesse to obey them , ver . . & ver . . thirdly , because covenants used to be written down for a memoriall unto posterity , therefore we see moses writing the precepts down in a book . fourthly , because covenants used to be confirmed by some outward visible signes , especially by killing of beasts , and offering them in sacrifice , therefore we have this also done , and halfe of the blood was sprinkled on the altar , to denote gods entring into covenant , and the people also were sprinckled with blood , to shew their voluntary covenanting . thus we have reall covenanting when the law is given . so also you may see this in effect , deut. . , , , . where it's expresly said , that they stood to enter into covenant with god ; that he may establish them to be a people unto himself , and that he may be a god unto them . again , you have this clearly in deut. . , . where it is said , thou hast avouched the lord this day to be thy god , and to walke in his wayes — and the lord hath avouched thee this day to be his peculiar people . so , that it 's very plain , the law was given as a covenant ; yea , the apostle cals it a testament : for howsoever some have disliked that distinction of the old and new testament , especially as applied to the books & writings of the holy pen-men of scripture ( thinking as austin , they may be better called the old and new instruments , because they are authenticall , and confirmed by sufficient witnesses : as tertullian cals the bible , nostra digesta , from the lawyers ; and others called it , our pandects , from them also ) yet cor. . doth warrant such a distinction . only the question is , how this covenant can be called properly a testament , because christ died not twice , and there cannot be a testament , without the death of a testator . but the answer is , that there was a typicall death of christ in the sacrifices , and that was ground enough to make the covenant to be called a testament . having proved it is a covenant , all the difficulty remaineth in declaring what covenant it is ; for here is much difference of judgements , even with the learned and orthodox : and this doth arise from the different places of the scripture , which , although they be not contrary one to another , yet the weaknesse of our understandings is many times overmastered by some places : some ( as you have heard ) make it a covenant of workes , others a mixt covenant , some a subservient covenant ; but i am perswaded to goe with those who hold it to be a covenant of grace : and indeed , it is very easie to bring strong arguments for the affirmative ; but then there will be some difficulty to answer such places as are brought for the negative ; and if the affirmative prove true , the dignity and excellency of the law will appeare the more . now , before i come to the arguments , which induce me hereunto , consider in what sense it may be explained , that it is a covenant of grace . some explaine it thus , that it was indeed a covenant of grace , but the jewes , by their corrupt understanding , made it a covenant of workes , and so opposed it unto christ : and therefore , say they , the apostle argueth against the law , as making it to oppose the promises and grace : not that it did so , but only in regard of the jewes corrupt minds , who made an opposition where there was none . this hath some truth in it , but it is not full . some make the law to be a covenant of grace , but very obscurely ; and therefore they hold the gospel and the law to be the same , differing only as the acorne while it is in the huske , and the oke when it 's branched out into a tall tree . now if this should be understood in a popish sense , as if the righteousnesse of the law and the gospel were all one , in which sense the papists speake of the old law and the new , it would be very dangerous and directly thwarting the scripture . some explain it thus : god ( say they , ) had a primary or antecedent will in giving of the law , or a secondary and consequent : his primary will was to hold out perfect and exact righteousnesse , against which the apostle argueth , and proveth no man can be justified thereby : but then god knowing mans impotency and inability , did secondarily command repentance , and promiseth a gracious acceptance through christ ; and this may be very well received , if it be not vexed with ill interpretations . but , lastly , this way i shall go : the law ( as to this purpose ) may be considered more largely , as that whole doctrine delivered on mount sinai , with the preface and promises adjoyned , and all things that may be reduced to it ; or more strictly , as it is an abstracted rule of righteousnesse , holding forth life upon no termes , but perfect obedience . now take it in the former sense , it was a covenant of grace ; take it in the later sense , as abstracted from moses his administration of it , and so it was not of grace , but workes . this distinction will overthrow all the objections against the negative . nor may it be any wonder that the apostle should consider the law so differently , seeing there is nothing more ordinary with paul in his epistle , and that in these very controversies , then to doe so : as for example , take this instance , rom. . ver . , . where paul describeth the righteousnesse of the law from those words , doe this and live , which is said to have reference to levit. . . but we find this in effect , deut . v. . yet from this very chapter the apostle describeth the righteousnesse which is by faith : and beza doth acknowledg , that that which moses speakes of the law , paul doth apply to the gospel : now how can this be reconciled , unlesse wee distinguish between the generall doctrine of moses which was delivered unto the people in the circumstantiall administrations of it , and the particular doctrine about the law , taken in a limited and abstracted consideration ? onely this take notice of , that although the law were a covenant of grace , yet the righteousnesse of works and faith differ as much as heaven and earth . but the papists , they make this difference : the righteousnesse of the law ( saith stapleton , antid . in hunc locum ) is that which we of our owne power have and doe by the knowledge and understanding of the law : but the righteousnesse of faith , they make the righteousnesse of the law , to which wee are enabled by grace through christ : so that they compare not these two together , as two contraries , ( in which sense paul doth ) but as an imperfect righteousnesse with a perfect . but we know , that the apostle excludeth the workes of david & abraham , that they did in obedience to the law , to which they were enabled by grace ; so necessary is it in matter of justification and pardon to exclude all workes , any thing that is ours ; tolle te à te , impedis te , said austine well . nor doth it availe us , that this grace in us is from god , because the apostle makes the opposition wholy between any thing that is ours , howsoever we come by it , and that of faith in christ . having thus explained the state of the question , i come to the arguments to prove the affirmative : and thus i shall order them ; the first shall be taken from the relation of the covenanters ; god on one part , and the israelites on the other : god did not deale at this time , as absolutely considered , but as their god and father . hence god saith hee is their god ; and when christ quoteth the commanders , hee brings the preface , heare o israel , the lord thy god is one . and , rom. . . to the israelites belong adoption , and the glory , and the covenants and the giving of the law , and the promises . now , unlesse this were a covenant of grace , how could god be their god , who were sinners ? thus also if you consider the people of israel into what relation they are taken , this will much confirme the point . ezod . . , . if yee will obey my voice , you shall be a peculiar treasure unto me , and yee shall be unto me a kingdom of priests , and an holy nation : which is applied by peter to the people of god under the gospel . if therefore the law had been a covenant of works , how could such an agreement come betweene them ? . if we consider the good things annexed unto this covenant , it must needs be a covenant of grace : for there we have remission and pardon of sinne , whereas in the covenant of workes , there is no way for repentance or pardon . in the second commandment , god is described to be one shewing mercy unto thousands : and by shewing mercy is meant pardon , as appeareth by the contrary , visiting iniquity . now doth the law , strictly taken , receive any humbling & debasing of themselves ? no , but curseth every one that doth not continue in all the things commanded , and that with a full and perfect obedience . hence , exod. . ver . , . god proclaimeth himselfe in manifold attributes of being gracious , and long-suffering , keeping mercie for thousands , and forgiving iniquity ; and this he doth upon the renewing of the two tables : whereas , if the people of israel had been strictly held up to the law , as it required universall perfect obedience , without any failing , they must also necessarily have despaired , and perished without any hope at all . . if we consider the duties commanded in the law so generally taken , it must needs be a covenant of grace : for what is the meaning of the first commandment , but to have one god in christ our god by faith ? for if faith had not been on such tearmes commanded , it had been imposible for them to love god , or to pray unto god. must not the meaning then be , to love , and delight in god , and to trust in him ? but how can this be without faith through christ ? hence some urge , that the end of the commandment is love from faith unfeigned ; but because scultetus doth very probably , by commandment , understand there , the apostles preaching and exhortation , ( it being in the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the apostle using the word in that epistle in the same sense ) i leave it . it 's true there is no mention made of christ , or faith in the first commandment , but that is nothing , for love also is not mentioned : yet our saviour discovers it there , and so must faith and christ be supposed there by necessary consequence . and can we think , that the people of israel , though indeed they were too confident in themselves , yet when they took upon themselves to keep and observe the law , that the meaning was , they would do it without any spot or blemish by sinne , or without the grace of god for pardon , if they should at any time break the law. . from the ceremoniall law. all divines say , that this is reduced to the morall law , so that sacrifices were commanded by vertue of the second commandment . now we all know , that the sacrifices were evangelicall , and did hold forth remission of sinns through the blood of christ : if therefore these were commanded by the morall law , there must necessarily be grace included , although indeed it was very obscure and dark . and it is to be observed , that the apostle doth as much argue against circumcision , and even all the ceremoniall law , as the morall ; yea the first rise of the cōtroversie was from that : now all must confesse , that circumcision and the sacrifices did not oppose christ , or grace , but rather included them . and this hath been alwaies a very strong argument to perswade me for the affirmative . it is true , the jewes they rested upon these , and did not look to christ ; but so do our christians in these times upon the sacraments , and other duties . . this will appear from the visible seale to ratifie this covenant which you heard , was by sacrifices , and sprinkling the people with blood : and this did signifie christ , for christ he also was the mediatour of this covenant , seeing that reconciliation cannot possibly be made with a sinner , through the mediation of any mortall man. when therefore moses is called the mediatour , it is to be understood typically , even as the sacrifices did wash away sin typically . and , indeed , if it had been a covenant of works , there needed no mediatour , either typicall , or real ; some think christ likewise was the angell spoke of act. . with whom moses was in the wildernesse ; and it is probable . now if christ was the mediatour of the law as a covenant , the antinomian distinction must fall to the ground , that makes the law as in the hand of moses , and not in the hand of christ ; whereas on mount sinai , the law was in the hand of christ . . if the law were the same covenant with that oath , which god made to isaac , then it must needs be a covenant of grace : but we shall finde that god , when he gave this law to them ; makes it an argument of his love and grace to them ; and therefore remembers what he had promised to abraham , deut. . . wherefore it shall come to passe , if ye hearken to these judgements , and do them , that the lord thy god shall keep unto thee the covenant , & the mercy which he sware unto thy fathers . and , certainly , if the law had been a covenant of works , god had fully abrogated and broken his covenant and promise of grace which he made with abraham and his seed . therefore , when the apostle , gal. . . opposeth the law and the promise together , making the inheritance by one , & not the other ; it is to be understood according to the distinction before mentioned of the law taken in a most strict and limited sense : for it is plain , that moses in the administration of this law , had regard to the covenant and promise , yea made it the same with it . now to all this , there are strong objections made from those places of scripture , where the law and faith , or the promise , are so directly opposed , as rom. . before quoted , so gal. . . rom . . so likewise from those places , where the law is said to be the ministery of death , and to work wrath . now to these places , i answer these things : first , that if they should be rigidly , and universally true , then that doctrine of the socinians would plainly prevaile , who from these places of scripture do urge , that there was no grace , or faith , nor nothing of christ , vouchsafed unto the jewes ; whereas they reade they had the adoption , though the state was a state of bondage . in the second place consider that as it is said of the law , it worketh death , so the gospel is said to be the savour of death , and men are said to have no sin , if christ had not come ; yea they are said to partake of more grievous judgements , who despised christ , then those that despised the law of moses : so that this effect of the law was meerly accidentall through our corruption : only here is the difference , god doth not vouchsafe any such grace , as whereby we can have justification in a strict legall way : but he doth whereby we may obtain it in an evangelicall way . thirdly , consider that the apostle speaketh these derogatory passages ( as they may seem to be ) as well of the ceremoniall law ; yet all do acknowledge here was christ and grace held forth . fourthly , much of these places is true in a respective sense , according to the interpretation of the jew , who taking these without christ , make it a killing letter , even as if we should the doctrine of the gospel , without the grace of christ . and , certainly , if any jew , had stood up and said to moses , why do you say , you give us the doctrine of life ; it 's nothing but a killing letter , and the ministery of death , would he not have been judged a blasphemer against the law of moses ? the apostle therefore must understand it , as seperated , yea and opposed to christ and his grace . and lastly , we are still to retain that distinction of the law in a more large sense , as delivered by moses ; and a more strict sense , as it consisteth in precepts , threatnings and promises upon a condition impossible to us , which is , the fulfilling of the law in a perfect manner . lectvre xxv . rom . . . where is boasting then ? it is excluded . by what law ? of works ? nay , but of faith . the apostle delivered in the words before most compendiously and fully the whole doctrine of justification in the severall causes of it , from whence in this verse , he inferreth a conclusion against all boasting in a mans self ; which he manageth by short interrogations , that so he might the more subdue that selfe confidence in us : where is boasting ? saith he . this is to be applyed universally both to jew and gentile ; but especially to the jew , who gloried most herein . and chrysostome makes this the reason why christ deferred so long , & put off his coming in the flesh , viz. that our humane pride might be debased : for if at first he had come unto us , men would not have found such an absolute necessity of a saviour . the second question is , by what law boasting is excluded ; and this is answered , first negatively , not by the law of works . secondly positively , by the law of faith . the apostle , by the law of works , meaneth the doctrine of works , prescribing them as the condition of our justification and salvation ; and he saith works , in the plurall number , because one or two good works , though perfectly done ( if that were possible ) would not satisfie the law for our acceptation , unlesse there were a continuall and universall practise of them , both for parts and degrees : and he cals the doctrine of faith , the law of faith , either because ( as chrysostome saith ) he would sweeten and indeare the gospel to the jewes , by giving it a name which they loved ; or , as beza , he speaks here mimetically , according to the sense of the jewes , as when john. . he calleth faith a work , because the jewes asked , what should they do ? now we have in the scripture two lively comments upon both these parts of the text. the pharisee mentioning what he did , reckoning up his works , and never naming the grace of god , is a boaster by the law of works , but the publican , that looketh upon himselfe only as a sinner , and so judgeth himself , he excludeth all boasting by the law of faith . the papists they mean by works here in the text , those which go before faith , and they quote a good rule out of gregory , though to a foul errour , non per opera venitur ad fidem , sed per fidem ad opera : we do not come by works to faith , but by faith to works . but this glosse of theirs corrupts the text , because the apostle in this controversie instanceth in abraham , shewing how he had not wherewith to glory in himself , and therefore by beleeving gave glory to god. if you ask why works do imply boasting , though we be enabled thereunto by the grace of god ? the answer is ready , because we attribute justification to that work of grace within us , which yet is defective , that is , wholly to be given unto christ . the doctrine i shall pursue out of these words , is , that although the law , given by god to the israelites , was a covenant of grace , yet in some sense the law and gospel do oppose and thwart one another , and this matter i undertake , because hereby the nature of the gospel and the law will be much discovered . it is an errour , saith calvin lib. . instit . cap. . in those who do never otherwise compare the gospel with the law , then the merit of works with the free imputation of righteousness : and ( saith he ) this antithesis or opposition is not to be refused , because the apostle doth many times make them contrary , meaning by the law that rule of life , whereby god doth require of us , that which is his own , given us no ground of hope , unlesse in every respect we keep the law ; but , saith he , quum de totâ lege agitur , when he speaks of the law more largely taken , he makes them to differ , only in respect of clearer manifestation : or , as , pareus saith of the old and new covenant , they differ not essentially , but , as we say , the old and new moon . therefore , before i come to shew the exact opposition , take notice of two things as a foundation : first , that the law and the gospel may be compared one with another , either in respect of the grace god gave under the old-testament , & the new , and then they differ onely gradually ; for they under the law did enjoy grace and the spirit of god , ( though socinians deny it ) although indeed in respect of the gospel , it may comparatively be said , no spirit , and , no grace ; as when it is said , the holy ghost was not yet given , because it was not so plentifully given : or , secondly , the doctrine of the law in the meere preceptive nature of it , may be compared with the doctrine of the gospel , having the grace of god annexed unto it and going along with it . now this is in some respects an unequall comparison ; for if you take the doctrine or letter of the gospel without the grace of god , that letter may be said to kill as well as the letter of the law : only this is the reason , why we cannot say , the spirit of god , or grace , or life is by the law , because whatsoever spirituall good was vouchsafed to the jewes , it is not of the law , but of the grace of god , or the gospel . therefore , whensoever we compare law and gospel together , we must be sure to make the parallel equall , and to take them so oppositely , that we may not give the one more advantage , or lesse , then the nature of it doth crave and desire . in the second place therefore , in this controversie , still remember to carry along with you the different use of the word [ law ] as to this point ; for if you take law strictly , and yet make it a covenant of grace , you confound the righteousnesse of works , and of faith together , as the papists do : but if largely , then there may be an happy reconciliation . for the better opening of this , consider , that as the word [ law ] so the word [ gospel ] may be taken largely , or strictly . we will not trouble you with the many significations of the word ( or whether it be used any where of a sorrowfull message , as well as glad newes , as some say , in two places it is used , . sam. . . sam. . . according to that rule of mercers , non infrequens esse , specialia verba interdum generaliter sumi . ) it is enough to our purpose , that in the scripture it is sometimes taken more largely , and sometimes more strictly : when it 's taken largely , it signifieth the whole doctrine , that the apostles were to preach , mar. . . preach the gospel to every creature : & so mar. . . the beginning of the gospel , i. e. the doctrine & preaching of christ . or else it is taken most strictly , as when luke . . behold i bring you glad tydings , &c. in which strict sence it 's called the gospel of peace , and of the grace of god : so that you see , the word [ law ] is taken differently , largely and strictly ; thus also is the word [ gospel . ] now it 's a great dispute , whether the command of repentance belong unto the gospel , or no ? i finde the lutherans , antinomians , and calvinists to speak differently : but of that , when we take the law and gospel in their most strict sense . bellarmine bringeth it as an argument , that the protestants do deny the necessity of good works , because they hold that the gospel hath no precepts , or threatnings in it , lib. . de justif . cap. . and he urgeth against them , that cap. . ad rom. where the wrath of god is said to be revealed from heaven in the gospel ; but ( as is to be shewed ) he there doth mistake the state of the controversie taking the word [ gospel ] in a larger sense then they intended . thus on the other side islebius , the father of the antinomians , he taught that repentance was not to be pressed from the decalogue , but from the gospel ; & that , to preserve the purity of doctrine , we ought to resist all those who teach , the gospel must not be preached but to those who are made contrite by the law : whereas the right unfolding of the word [ gospel ] would make up quickly those breaches . the law therefore and the gospel admitting of such a different acception , i shall first shew the opposition between the law and the gospel taken in their large sense and then in the limited sense , and this is worth the while , because this is the foundation of all our comfort , if rightly understood . now the question in this larger sense is the same with the difference between the old and new-testament , or covenant ; wherein the learned speak very differently , and , as to my apprehension , most confusedly . i shall not examine whether that be the reason of calling it old and new , which austin chemnitius , and others urge , because it presseth the old man & condemneth that ; whereas the new incourageth and comforteth new : i rather take it to be so called , because the old was to cease and vanish away , being before the other in time . now in my method i will lay down the false differences , and then name the true . the false differences are first of the anabaptists and socinians , who make all that lived under the law to have nothing but temporall earthly blessings in their knowledge and affections . and for this they are very resolute , granting indeed that christ and eternall things were promised in the old testament but they were not enjoyed by any till the new testament , whereupon they say , that grace and salvation was not till christ came . and the places which the antinomians bring for beleevers under the new testament , they take rigidly and universally , as if there had been no eternall life , nor nothing of the spirit of god till christ came . hence they say , the gospel began with christ , and deny that the promise of a christ , or messias to come is ever called the gospel , but the reall exhibition of him only . this is false ; for , although this promise be sometimes called act. . . act. . . the promise made to the fathers , yet it is sometimes also called the gospel , rom. . . rom. . , . and there are cleare places to confute this wicked errour , as the apostle instancing in abraham and david , for justification , and remission of sinnes , which were spirituall mercies ; and that eternall life was not unknown to them , appeareth by our saviours injunction , commanding them to search the scriptures , for in them they hope for eternall life , john . . thus also they had hope and knowledge of a resurrection , as appeareth , act. . . therefore our saviour proved the resurrection out of a speech of gods to moses . and howsoever mercer ( as i take it ) thinke that exposition probable about jobs profession of his knowledge [ that his redeemer liveth , and that he shall see him at the last day ] which make his meaning to be of jobs perswasion of his restitution unto outward peace and health again ; yet there are some passages , in his expression , that seem plainly to hold out the contrary . though therefore we grant that that state , was the state of children , and so carried by sensible objects very much ; yet there was under these temporall good things , spiritual held forth . hence the apostle , cor. . maketh the jewes to have the same spirituall matter and benefit in their sacraments which we partake of . in the next place , let us consider the false difference of the papists ; and they have the socinians also agreeing with them in some things . first , they make this a great difference , that christ , under the new testament , hath added more perfect laws , and sound counsells then were before , as , wilfull poverty , vowed chastity : and the socinians , they labour to shew how christ hath added to every precept of the decalogue ; and they begin with the first , that he hath added to it these things : . a command to prayer , whereas in the old testament , though godly men did pray , yet ( say they impudently ) there was no command : and then christ ( say they ) did not only command to pray , but gave a prescript form of prayer . the second thing added ( say they ) is to call upon christ , as a mediatour in our prayers , which they in the old testament did not . and thus they go on over all the commandements , shewing what new things christ hath added , smal. refut . thes . pag. . but i have already shewed that christ never added any morall duty which was not commanded before . the second difference of the papists , is , to make the law and the gospel capable of no opposite considerarion , no not in any strict sense , but to hold both a covenant of works , and that the fathers under the old testament , and those under the new , were both justified by fulfilling the law of god. and herein lyeth that grosse errour , whereby christ and grace are evacuated . but the falshood of this shall be evinced ( god willing ) when we speak of the law and gospelstrictly , which the papists , upon a dangerous errour , call the old law , and the new. lastly , the papists make a third difference , that under the old testament , the fathers that dyed went not immediatly to heaven ; therefore ( say they ) we do not say , saint jeremiah , or , saint isaiah , but after christs death then a way was opened for them and us : hence is that saying , sanguis christi , est clavis paradisi , the blood of christ , is the key of paradise : but this is sufficiently confuted in the popish controversies . i come therefore to the antinomian difference , and there i finde such an one , that i am confident was never heard of before in the world ; it is in the honey-comb of justification , pag. . god ( saith he ) saw sin in the beleevers of the old testament , but not in these of the new ; and his reason is , because the glory of free justification was not so much revealed , the vaile was not removed . what a weak reason is this ? did the lesse , or more revelation of free justification make god justifie the lesse freely ? it had been a good argument to prove that the people of god in the old testament did not know this doctrine so clearly as those in the new , but that god should see the more or lesse , because of this , is a strange consequence . the places of scripture which he brings , zech. . . dan. . . would make more to the purpose of a socinian , ( that there is no pardon of sin , and eternall life but under the gospel ) rather then for the antinomian : and one of his places he brings , jer. . ver . . maketh the contrary true ; for there god promiseth pardon of sin , not to the beleevers under the gospel but to that residue of the jews which god would bring back from captivity , as the context evidently sheweth : so the place heb. . . how grosly is it applyed unto the beleevers of the gospel only ? for , had not the godly under the old testament the law written in their hearts ? and had they not the same cause to take away their sins ( viz. christs blood ) as well as we under the gospel ? his second reason is , god saw sin in them , because they were children , that had need of a rod ; but he sees none in us , because full grown heirs . what a strange reason is this ? for parents commonly see less sin in their children , while young , then when grown up : and their childishness doth more excuse them . and although children only have a rod for their faults , yet men grown up they have more terrible punishments . hence the apostle threatens beleevers that despise christ , with punishment above those that despised moses . his third reason is , because they under the law were under a school-master , therfore he seeth sin in them , but none in us , being no longer under a school-master . but here is no solidity in this reason : for first , the chiefest work of a school-master is to teach and guide ; and so they are said to be under the law as a school-master , that so they may be prepared for christ : and thus it is a good argument to christians under the gospel , that their lives should be fuller of wisdome and grown graces , then the jewes ; because they are not under a school-master as children : as if one should say to a young man , that is taken from the grammar school , and transplanted in the university , that he should take heed he doth not speak false latine now , for he is not in a grammar schoole now , but in an university . thus you see , the chief notion of a school-master is to prepare and guide , his correcting is accidentall ; yea , if we may believe qintilian a master in this kinde , he is against the school-masters beating of boyes , as that which would make them of a servile disposition . but solomon giveth better rules . grant therefore that this is to be understood of knocks and blows which they had , what can we say under the gospel , that we are children freed from the rod ? though we have not a shoolmaster , yet we have a father to correct us . heb. . , , , . do we not in that place finde a plain contradiction of this doctrine ? for the apostle doth there alleadge a place of the old testament , to us now under the gospel : and , certainly , afflictions are as necessary to the godly now , as fire to the drossy vessell and filing to the rusty iron . as the scourging and beating of the garment with a stick , beateth out the mothes and the dust ; so do troubles and adversities corruptions from the children of god. the fourth reason why god saw sin in them , war , because they were not made perfect according to the conscience , heb. . , . who would not think that the author were some papist , or socinians ? for if the text prove any thing to his purpose , it will evince that the godly then were made partakers of no more then a legall bodily cleansing . but as for the place , that is miserably arrested ; for the apostle , his intent is to shew , that the godly then could not obtain righteousness by any of those sacrifices , and therefore the good they enjoyed was from christ the true sacrifice : so that unless he will deny christs blood to be effectuall and operative in the old testament , this reason must fall to the ground . other reasons he brings , which are to the same purpose , and therefore may easily be overthrown ; as , that god saw no sin in them , because their preachers did not open the kingdome of heaven , but he seeth none in us , because the least of our ministers do bring us , into this kingdome . every-one may see the weakness here ; for it supposeth that god did not so fully pardon and forgive , because the doctrine of these things was not so clearly preached . if the authors arguments had been , that christ died not so fully for them , or that christ his righteousness was not so fully imputed unto them , then there had been some probability . thus you see this false difference also . i do not medle with that opinion , of seeing sin in the beleevers , because it is not the proper place . i find other differences between the law and the gospel , made by another antinomian , and they are in a sermon upon the two covenants of grace , where the authour , hauing truely asserted , that god did transact with the jewes in a covenant of grace ; yet he makes that covenant , and this under the gospel , to be two distinct covenants : they are not ( saith hee , pag. . ) one and the same covenant diversly administred , but they are two distinct covenants : his arguments are , because they are called old and new : but those names inforce no essentiall difference . the commandment of love is called an old commandment , and a new ; yet it is the same for essence : so likewise the termes of a good , and better , do imply no more then a graduall difference in their excellency . but that which i shall especially animadvert upon , is , the differences he giveth between these two covenants of grace so really distinguished , as he supposeth , and in this matter , the authour speaketh much error in a few lines . the first difference assigned by him is in respect of remission of sinnes ; but he goeth on other grounds then the hony-combe doth . they had not ( saith he ) a plenary remission of all sorts of sinnes : there were sacrifices for sinnes of ignorance , but notfor other sinnes that were done presumptuously : and if no sacrifices were admitted , then consequently no pardon obtained : but under the gospel , christs blood cleanseth from all sin , pag. . now here is an heape of falshoods : first , that all the legall sacrifices were only for sinnes of meer ignorance ; ( this is also an errour among socinians ) but levit. . , . there is a sacrifice appointed for him that shall lye , and sweare falsly in detaining of his neighbours goods , and this could not be but a sinne of knowledge . this is also aboundantly confirmed in levit. . where the feast of expiation and atonement is made for all the sinnes of the people , ver . . he shall make an atonement , because of the uncleaness of the children of israel , and because of their transgressions in all their sinnes . so ver . . he shall confess over the live goat all the iniquities of the children of israel , and all their transgressions in all their sinnes . thus ver . . that ye may be cleane from all your sinnes before the lord ; & ver . . this shall be an atonement for the children of israel once a yeare for all their sinns . thus you see the scripture speakes plainly for all their sinnes ; yet the antinomian speakes as boldly , as if nothing were true ; that there were sacrifices for some sorts of sinnes only . so that you are wisely to judge of such books , and not beleeve every confident expression . it 's true the apostle calls these sinnes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , heb. . . we translate it errours ; for the apostle doth not meanesinnes , as appeareth levit. . but therefore are all sinnes called , so because omnis malus ignorat : there being no sinne which doth not proceede from some errour in the practicall judgment ? for although a man sin wilfully and advisedly , so that there is nulla alia causa malitae nisi malitia , ( as austin speakes of some of his sinnes ) yet there is even an errour in that mans conscience . but in the second place , grant , that there were no legall sacrifices appointed for some sins , ( as indeed particular sacrifices were commonly for sins , either of ignorance , or if wilfull , not of such an high and mortall guilt ; particular ( i say ) for that feast of expiation was generall ) yet there is no consequence in the world , that therefore there was no pardon to be sued out . how foolish then were david and manasses , in suing out pardon for their blood-guiltiness , if there were no such thing allowed by god ? how gross is this errour ? if this doctrine were true , then most of those that are reckoned as godly in the old testament could have no pardon , because many of them did fall into such gross sins , for which there was no particular sacrifice appointed . . again under the new testament , is there not the sin against the holy ghost for which no pardon is promised ? not indeed but that christs bloud is sufficient to take away the guilt of it ? and gods mercy is able to pardon it , and to give repentance to those that have committed it ; but he hath declared he will not . but , saith the author , under the gospel it is said , the bloud of christ cleanseth us from all sin . now , if the jews would have brought all their estates to have been admitted , to bring a sacrifice for such or such a sin , they could not have done it . i reply what and if they could bring no sacrifice , could they not therefore have pardon ? why then doth god proclaime himself to them , a god gracious , forgiving iniquity , transgression and sin ? why doth he , isa . . call upon ierusalem to repent of her whoredoms , murders , saying , if their sins were as scarlet , they should be made as white as snow . this errour is such a dead fly , that it is enough to spoile the authors whole box of ointment . besides , was not that true ever since adams fall , as well as under the gospel [ christs blood cleansing from all sin ] i cannot see how any but a socinian will deny it . . another difference that the author makes about remission of sinnes to them , and us under the gospel , is as strange , and false as the former : it is this , god did not give the grace of remission of sinnes to any under the old covenant , but upon antecedent conditions ; they were to be at cost for sacrifices . ( how doth this agree with his former reason , if he mean it universaly ? ) they were to confess their sinnes to the priests , yea , in some cases to fast : but now under the gospel there is no antecedent doing of any thing to the participation of the covenant . but in this difference also there is much absurd falshood , and contradiction to himselfe : contradiction ( i say ) for he bringeth ezech. . where god speaks to the church , that while she was in her blood , he said to her , live ; therefore there was no antecedent condition . but what man of reason doth not see that god speaks there of the church of the iews , as appeareth through the whole chapter ? therefore it makes strongly against the author , that she had no preparations ; so that other place , isa . . . i am found of them that sought not for me ; grant that it be a prophesie of the gentiles , yet was it not also true of the iews , before god called them ? did the iews first seek god , or god them ? how often doth god tell them , that the good he did to them , was for his own names sake , and not any thing in them ? again , if these things were required as antecedent qualifications in them for the remission of sins , then all those argumments will hold true upon them , which they would fasten , as injuries to christ and grace , upon us . if ( say they ) we must repent , and humble our selves , and so have pardon , this is to cast off christ , this is to make an idoll of our owne righteousness , &c. it seemeth the jews under the old testament might do all these things without blame : a iew might say , my services , my sacrifices , my prayers will do something to the remission of my sinnes : but a christian may not . the author urgeth also that place , while we were enemies , we were reconciled to god : but doth not this hold true of the iews ? did they first make themselves friends with god ? what is this but to hold the doctrine of free-will and works in the time of the law ; and the doctrine of grace under the new only ? as for faith , whether that be a condition or not , i shall not here meddle : only this is plain , it was required of them under the old covenant , in the same maner , as it is of us now . a third difference made as to remission of sinnes , is this : their remission of sinnes was gradatim , successively , drops by drops . if a man had sinned , and offered sacrifice , then that sinne was pardoned ; but this did not extend to future ignorance , that was not pardoned till a new sacrifice . therefore the apostle saith , there was a remembrance of sinne ; but christ by one sacrifice once offered , hath perfected for ever them that are sanctified . to this i answer , . that this difference grew upon this supposition , as if the sacrifice offered did by it's own vertue take away sinne . for , if we suppose ( as we must ) that christ the true sacrifice was represented in every sacrifice , and all the vertue and benefit to come from christs bloud , and not the bloud of the sacrifices , then could that take away all sinnes as well as some sinnes : unless the author were a socinian , denying the efficacy of christs blood , at all , under the old testament , he can never expedite himselfe from this . again , this contradicts themselves ; for the reason why they say , faith doth not justifie , but evidence and declare it only , is , because gods love and free grace to justifie , is from all eternity , and therefore no sins past , or future , can hinder this . now i ask , whether god did not justifie david , and the ungodly in those dayes from all eternity , ( as they speak ) and if he did , why should not all their sins be remitted fully once , as well as the sins of beleevers under the gospel ? certainly , the apostle brings david for an instance of justification and remission of sins , as well under the new testament , which doth suppose that we are justified , and have our sins pardoned in the like manner . in the mean while , let me set one antinomian to overthrow another , for one of that way brings many arguments to prove that we are justified , and so have all our sins done away before we beleeve . now , if all sins are done away , then there is no successive remission . well then , you shall observe most of the arguments hold for the beleevers under the old testament , as well as new ; for they are elected as well as we , god laid their sins , upon christ as well as ours : if god love us to day , and hate us to morrow , let arminians heare and wonder why they should be blamed that say , we may love god to day , and hate him to morrow . now all these reasons will fall foul upon this antinomian whose errour i confute , and he much necessarily hold , that the godly had but halfe pardons , yea , that they were loved one day , and hated the next . again , consider that the place of the apostle urged by him for his errour , viz. christ offering himselfe once for all , to perfect those that are sanctified , is of a perpetuall truth ever since adams fall : and it was as efficacious to those before his death , as after ; therefore he is called a lamb slain from the beginning of the world , although the socinians would pervert and wrest that place . lastly , i deny that even under the gospel that all sins are forgiven to the justified person at once . he is indeed put into a state of justification , whereby no condemnation will fall upon him , yet his sins are not forgiven before they are committed and repented of . and for this purpose we pray for the daily pardon of them , which is not to be understood of the meer declaration or assurance of the pardon , but for the pardon it self . but this shall be on purpose spoken to in the matter of iustification . the forenamed author hath some other differences , but they are confuted already for the substance of them . lectvre xxvi . rom . . . where is boasting then ? it is excluded . by what law ? of works ? nay , but by the law of faith . we have confuted the false differences , and now come to lay down the true , between the law and the gospel , taken in a larger sense . and , first , you must know that the difference is not essentiall , or substantiall , but accidentall : so that the division of the testament , or covenant into the old , and new , is not a division of the genus into it's opposite species ; but of the subject , according to it 's severall accidentall administrations , both on gods part , and on mans . it is true , the lutheran divines , they do expresly oppose the calvinists herein , maintaining the covenant given by moses , to be a covenant of works , and so directly contrary to the covenant of grace . indeed , they acknowledge that the fathers were justified by christ , and had the same way of salvation with us ; only they make that covenant of moses to be a superadded thing to the promise , holding forth a condition of perfect righteousness unto the iews , that they might be convinced of their own folly in their self-righteousness . but , i think , it is already cleared , that moses his covenant , was a covenant of grace : & the right unfolding the word law , and gospel , doth easily take away that difference which seemeth to be among the learned in this point ; for , certainly , the godly iews did not rest in the sacrifices , or sacramenrs , but by faith did really enjoy christ in them , as well as wee in ours . christ was figured by the mercy-seat : now , as both the cherubims looked to that , so both the people of the jews and gentiles did eye and look to christ . for although christ had not assumed our flesh then , yet the fruit and benefit of his incarnation was then communicated , because of the decree and promise of god , . pet. . . . this difference is more particularly seen , in respect of the degrees of perspicuity and clearness in the revelation of heavenly objects . hence , pet. . . the light in the old testament is compared to the light in the night time ; and that in the new , to the light of the sun in the day . the summ of all heavenly doctrine is reduced to these three heads : credenda , things to be beleeved : speranda , things to be hoped for : & facienda , things to be done . now , if you consider the objects of faith , or things to be beleeved , they were more obscurely delivered to them : the doctrine of the trinity , the incarnation of christ , and the resurrection , these things were but in a dark manner delivered , yet , according to the measure of that light then held forth , they were bound to beleeve those things : so that , as moses had a vail upon him , thus also his doctrine had ; and , as the knowledge we have here is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in respect of that in heaven , so that in the old testament may be said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in respect of that in the new. as it is thus for the credenda , things to be beleeved , so it is also for the speranda , things hoped for . the opinion of the socinians and others is very wicked , which makes them before christ , only to hope in temporall good things , and the notion of the papists observing that the church under the new testament is called ecclesia , but never synagoge ; & the meeting of the jews , called always synagoge , but never ecclesia , doth suppose that the jews were gathered together as so many beasts , rather then called together as men . but this notion is judged false ; and they instance heb. . and james . where the church of the christians is called synagoge ; although cameron , praelect . de eccles . pag. . doth industriously labour to prove that the apostles did purposely abstain from the word synagoge in reference to christians : but his reason is not that the papists urge , for howsoever the good things promised were for the most part temporal , and carnal , yet these figured spirituall and heavenly . it 's austins observation , shewing that the jews should first be allured by temporal mercies , and afterwards the christians by spiritual : as , saith he , first that which is animal , and then that which is spiritual : the first man was of the earth , earthly ; the second man was of heaven , heavenly : thus we may say of the jew and the christian , that which was animal was first , and then that which is spiritual . hence , heb. . . abraham and others are said to seek an heavenly country ; so that although it be true which austine ( as i remember ) said , though you look over the whole book of the old testament , yet you shall never find the kingdome of heaven mentioned there : yet we see david making god his portion , and professing that he hath nothing in heaven but him , which argueth , that they looked farther then meer outward mercies . these good things promised to the jews were figurative , so that as a man consisteth of a soul and body , thus also doth the promises ; there is the kernel and the shell : but the jews , for the most part , looked only to the outward . hence christ , when he opened those things to his disciples , did like a kind father , that breaketh the shell , and giveth the kernel to his children . in the third place , there are facienda , things to be done . now although it be true , ( as i have proved ) that christ hath added no new command to the law of moses ; and whatsoever is a sin now in moral things , was also then ; yet the doctrine of these things was not so full , penetrating , and clear as now under the gospel . there is a dangerous book , called , the practicall catechisme , that venteth much socinian poyson , and in this particular , among other things , that christ added to the law , and perfected it , filled up some vacuities in it ; certainly , the law of god being perfect , and to which nothing must be added , cannot be said to have vacuities in it ; and christ is said to fill the law , in respect of the pharisees , who by their corrupt glosses had evacuated it . and one of his reasons , which he brings to prove his assertion , makes most against him , viz. except your righteousness exceed the righteousness of the scribes and pharisees , &c. this maketh against him , because our saviour doth not say . except your righteousness exceed the righteousness of the law and the prophets ; ( which he must have said , if his opinion were true ) but , of the scribes and pharisees , who had corrupted the text with their false glosses . i will not consider his other reasons ; for they are so weak , that he seemeth to be afraid of them : and , certainly , it would be strange divinity , to say , that a jew might have lusted after a woman in his heart , and not have sinned ; but now it would be sin in a christian . the second particular difference is in respect of the measure of grace . hence the scripture speakes , as if they had under the old testament none at all , meerly because there was not such a plentifull effusion of his spirit upon them : not but that if we consider some particular persons , they might have such degrees of grace , that few under the gospel can be compared unto them , as abraham and david ; but this was not according to the ordinary dispensation of his graces then : so that as one starre differeth from another in glory , thus did the church of the jewes , from that of christians . they had drops , but we have the fountaine ; they had glimmerings , but we have the sun it selfe . now , as these are priviledges , so they are also great engagements for more eminent knowledge , and holiness then was in those dayes . but all that the prophets reproved in their people , ignorance , selfe confidence , resting upon externall duties , &c. the same may we in our hearers . their condition was more servile . all things did press more to fear , and bondage , then now among us . hence the apostle , gal. . . compareth their condition to the sons of the bond-woman . hence austine makes timor , and amor , the difference of the two testaments ; god met man sinning in the law , as he did adam , with terrour , charging sin upon him ; but under the gospel , as the father did the prodigall son , coming home to him . see heb. . this difference considered by paul , yee are not come to mount sinai , &c. only you must rightly understand this . the jewes had a two fold consideration ; one , as being servile , and another of them , as sonnes , but under age : so that they were not wholly excluded from the spirit of adoption : yea , the apostle saith , that the promises , and adoption did belong unto thom ; and david doth appropriate god unto himselfe as his god , in his prayer , which argued he had the spirit of adoption , inabling him to call , abba , father . now , as they were more obnoxious to an inward bondage , so they were under an outward bondage also , opposite unto which is that christian liberty paul speakes of , whereby the yoke of all those ceremonious burdens is taken off them ; and paul doth vehemently and fervidly dispute against those that would introduce them . in the asserting of this difference , one scruple is to be removed , which is this , how could the jewes be said to be in more servitude then the christians ; meerly because of those ceremonies and sacrifices ? for , seeing they were commanded by god , and had spirituall significations , they did thereby become helpes unto their faith , and were exercises of their piety . as under the gospel none can say that the sacraments are a burden , and tend to bondage , because they are visible signes : but rather god doth hereby condescend in his great love unto us for , as chrysostome observeth , if wee had been incorporeall , god would not then have appointed visible sacraments , ( no more then he doth to angels ) but now consisting of soul and body , he doth institute some things in an accommodated way to helpe us , and to promote our faith . but this may be answered , that although they were spirituall in signification , yet they being many , and requiring much bodily labour , they could not be observed without much difficulty : and therefore no priest , or levite , that was spiritually minded , in those dayes , but would rather choose to exercise the ministery under the gospel , then to busie himself in the killing of beasts , and fleaing of them , which was their duty to do . therefore well did austine observe the love of god in appointing for us sacraments , fewer in number , easier in observation , and more cleare in signification . again , those bodily exercises did rather fit those that were children , and were more convenient to that low condition , then unto the full age of the church : and sacraments , though they be an help , yet they suppose some imbecillity in the subject : therefore in heaven there shall be none at all . only take notice , that popery , having introduced so many ceremonious observations , and such a multitude of church-precepts , hath made the times of the gospel to be the times of none-age again . this also discovereth that such are not spirituall , that delight in ceremoniall wayes : and the more men fix their heart upon sensible observations , the less they partake of spirituall . i will instance but in a fourth ( because these differences are given by most that treate on this subject ) and that shall be the continuance and abode of it . the law , in that mosaicall administration , was to indure but till christ the fulness came ; and then , as the scaffolds are pulled down when the house is built , so were all those externall ordinances to be abolished , when christ himselfe came . a candle is superfluous when the sun appeareth . a school-master is not necessary to those that have obtained perfect knowledge . milke is not comely for those who live on solid meat . the chaff preserves the corn , but when the corn is gathered , the chaff is thrown away . and when the fruit commeth , the flower falleth to the ground and in this sense the apostle , heb. . doth argue against it , saying , it could bring nothing to perfection , neither could any of those purifications work any good and spiritual effect . it behoved therefore that a christ should be exhibited , which would work all those spirituall mercies for us , hence had there been no farther proceeding , but we must alwaies have stayed in such offerings , and sacrifices , it had been impossible for ever that god should have been pleased with us . it is therefore in this respect , that it was to be antiquated , and a better covenant to come in the room of it . the apostle calleth those things , heb. . a shadow : now a shadow , that doth shew a man , but yet the shadow , that doth not live , or eate , or speak : so those sacrifices they shadowed out christ , but yet they could not exhibite the reall benefits by christ . as elisha sent his servant with a staff to raise up the shunamites son , but he could doe nothing ; then cometh the prophet himself , and raiseth him up : so it 's here , moses was like the prophets servant , he went with a staff to raise up those dead in sin , but could not do it without christ . here may be one question made upon these things , and that is , why god appointed such various and different administrations ? this providence of god became a rock to the marcionites , and manichees , insomuch that they denyed the same god to be author of both the testaments . to answer this ; certainly god , if he pleased , could have as clearly revealed christ , and poured out his pirit , giving eternall life as plentifully under the law , as under the gospel . but to aske why he did thus , would be as presumptuous and arrogant , as to aske , why he created the world no sooner . if the school-master teach the new beginner in another way , then he doth the proficient in study , no man doth blame his wisedom . as in the paschall lamb , they were to eate the flesh , but to throw away the bones ; so in all matters of religion , those things that are revealed and profitable we may feed upon , and whatsoever is abstruse and difficult , we may let goe . praestat per deum nescire , quia ipse non revelaverit ; quàm per hominem scire , quia ipse praesumpserit , tert. de anima . now , to conclude , i come to give the difference between the law strictly taken , as requiring exact and perfect obedience , promising eternall life upon no other termes : and the gospel strictly taken , as a solemne promulgation of christ , and his benefits to a broken sinner . and the first is this , the law in some measure of it is made knowne by naturall light , and so agreeable to a naturall conscience . i say in some measure ; for there is much of the duty of the law that is unknown to naturall consciences , yet the most externall and outward duties are knowne , and accordingly , as the truth of them is discerned by naturall light , so the will doth joyne with them as good to be done ( though not in a godly way . ) but it is otherwise with the gospel , for the very truth of it must be wholy revealed by god , so that no naturall acumen in the world , could ever excogitate this wonderfull remedy , of justification and salvation by christ . and as it is thus above knowledg , so the heart is more averse from this way . and by this you may see , why it is such an hard thing to beleeve ; why the people of god are so hardly perswaded , when loaden with guilt , to roule their soules upon christ . the reasorris , there is nothing in his natural conscience to further him in this duty . press a man against murder , theft , adultery ; here is naturall conscience joyning for this duty : but urge him to beleeve , this is altogether above nature . hence it is also , that naturally we seek to be justified by the works we do ; so that to be justified by faith is another way , then corrupted nature in us , or right nature in adam would have inclined unto , therefore let not the people of god be so discouraged in their agonies and combats about their unbeliefe : let them know , that a little degree of faith is of great consequence . and if he said , that christi anity was perpetua naturae violentia , a perpetuall violence offered to nature , this is most sure in a matter of faith . we are as froward in rejecting of a promise , as stubborn in refusing of a command . the second difference is in the object matter : the law holdeth forth a perfect righteousness , and will not admit of any other ; but the gospel , that condescends , and brings pardon through christ . and this is the maine difference , and in which they can never be made one . now the papists , arminian , socinian , and others do overthrow this grand and maine difference holding justification by works under some notion , or other : whereas the apostle maketh an immediate opposition , if of faith , then not of works . the apostle doth not distinguish of works of nature , and works of grace , or works of grace perfect imperfect : but speaketh absolutely , & so doth also exclude that subtile opinion , of making faith to justifie as a work ; for the apostle , making an opposition between faith and works , must necessarily take faith under such a notion , as cannot be a work . and this truth is that which is the pillar of the church of god , and that which differenceth us from jews , turks , papists , and many hereticks . the third difference is from the manner of obtaining the good thing promised : he that shall obtain eternall life by the law , hath it of debt , and by way of justice , rom. . . not as if adam in the state of innocency could have merited at gods hands ; or as if god became in strict justice a debtor ; seeing adam was beholding to god for all : but in some sense it would have been so . hence boasting would not then have been excluded : eternall life being the reward of those holy works , which he should have done , but now all is of grace , through christ ; our righteousness is meerly gods indulgence : not the holiness that is in us , but the sinn pardoned makes us acceptable . so that the broken contrite heart can never sufficiently admire the grace and goodness of god in the gospel-way : and no marvell if so be that paul is so frequently ravished with the considerations thereof . this may well be cailed good newes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and if our hearts were spiritually affected , we should say , how beautifull are the feet of those that bring these glad tydings ? the fourth difference is in respect of the subject : the law , strictly taken , is only for those who have a perfect and holy nature : therefore it 's a covenant , ( as you heard ) of friendship , and not of reconciliation , so that there is no necessity of any mediatour . indeed , there is good use of urging it to proud pharisaicall men , to bring them out of love with themselves ; to gross sinners , that their hearts might be broken , seeing the curses belong to them ; yea , to the godly also , to teach them the faire copy they are to write after : but , in respect of justification by it , and eternall life , there is none can have that benefit but such who shall be found perfectly holy : it was not moses , but the serpent that did heale ; so it is not the law , but christ that can comfort broken hearts stung with sin . the priest , and the levite they pass by , not pitying of him . but now the subject to whom the gospel is given , is a broken hearted sinner , one that feeleth himselfe ready to be covered over with all confusion , one that lyeth wounded in conscience , crying for some oyle to be poured into his wounds . oh! what miserable comforters then must all popish and socinian doctors be , who will advise the sinfull tempted man to seek out works for the law , which is as uncomfortable , as to bid a sick diseased man get some of the philosophers stone , or to eat a piece of a phoenix , and then , and not till then , he shall be in ease ? lastly , the law differeth in the forme of it from the gospel : the law is conditionall , but the gospel absolute . i find this question a very troublesome one , whether the gospel be absolute or no ? whether gospel be a doctrine of works ? whether it hath precepts , or threatnings ? now the meaning of this question is not , whether the gospel be so absolute that it requireth not faith as a condition : or whether it be so absolute , as that it excludeth all repentance and holiness ; he is an infant in scripture that thinketh so : but , whether the gospel doth promise eternall life to a man for any dignity , intention , merit , work , or any disposition in us under any distinction or notion whatsoever ; or only to faith apprehending christ . now the answer is , that if we take the gospel largly , for the doctrine of christ and the apostles , there is no question , but they pressed duty of mortification & sanctification , threatning those that do not so : but if you take the gospel strictly , then it holdeth forth nothing but remission of sins through christ , not requiring any other duty as a condition , or using any threatning words thereunto . but then it may be demanded , to which is repentance reduced ? is it a duty of the law , or a duty of the gospel ? of the law strictlytaken , it cannot be , because that admitteth none . must it not therefore be of the gospel ? and i find in this particular , different either expressions or opinions , and generally the lutheran divines do oppose the antinomians upon this very ground , that the gospel is not a sermon of repentance , nor doth exhort thereunto ; but it must be had from the law , which doth prepare them for christ . i shall therefore , because this was the foundation of antinomianisme , and it had it's rise from hence , handle the next day this question , whether the gospel doth command repentance , or no. or , whether it be only from the law. lectvre xxvii . rom . . . where is boasting then ? it is excluded . by what law ? of works ? nay , but by the law of faith . i proceed to the handling of this question , whether the gosspel preach repentance or no : seeing this made the great commotion at first between the orthodox and antinomians . i shall dispatch this in few words , . the word [ repentance , ] is taken sometimes largely , and sometimes strictly : when it is taken largely , it comprehends faith in it , and is the whole turnign unto god rev. . . sometimes it is used strictly , for sorrow about sin , and so distinguished from faith . thus , they repented not , that they might beleeve ; and faith and repentance are put together , now all the while a man hath trouble and sorrow for sin , without faith , it is like the body without the soul ; yea , it carrieth a man with cain , and judas , into the very pit of dispair ; when a man seeth how much is against him , and not how much is for him , it cannot but crush , and weigh him down to the ground . the tears of repentance are like those waters , very bitter , till christ sweeten them . . consider this , that the law was never meerly and solely administred , nor yet the gospel , but they are twins , that are inseparably united in the word and ministery . howsoever strictly taken , there is a vast gulf of opposition between each other ; yet in their use they become exceeding subservient , and helpfull mutually . it is not good for the law to be alone , nor yet the gospel . now the old antinomians , they taught repentance by the gospel only , that so the law might be wholly excluded . thus they did not consider what usefull subserviencie they had to one another . the law directeth , commandeth , and humbleth : the gospel , that comforteth , refresheth , and supporteth . and it is a great wisedom in a christian , when he hath an eye upon both . many are cast down , because they only consider the perfection of the law , and their inability thereunto : on the other side , some grow secure and loose , by attending to free-grace only . i do acknowledge , that free-grace will melt the heart into kindness , and the fire will melt , as well as the hammer batter into pieces ; but yet , even this cannot be done , without some use of the law. . therefore , being there is such a neer linck between both these in their practicall use , we need not , with some learned men , make two commandements of the gospel only ; to wit , the command to beleeve , and the other command to repent : neither need we , with others , make these commands appendices to the gospel . but conclude thus , that , seeing faith and repentance have something initial in them , and something consummative in them , therefore they are both wrought by law and gospel also : so that , as they say there is a legal repentance and an evangelical ; so we may say , there is a legal faith , which consists in believing of the threatnings , & the terrours of the lord ; and there is an evangelical faith , which is in applying of christ in the promises . so that legal faith , and repentance , may be called so initially ; and when it is evangelical , it may be said to be consummate . if therefore you aske , whether faith and repentance be by the law , or by the gospel ; i answer , it is by both and that these must not be seperated one from the other in the command of these duties . hence , fourthly , unbeliefe is a sin against the law , as well as against the gospel . indeed the gospel , that doth manifest , and declare the object of justifying faith , but the law condemneth him that doth not believe in him : therefore moses and the law is said to bear witness of christ , and to accuse the jews for refusing the messias . the law , that requireth belief in whatsoever god shall reveal : the gospel that makes known christ ; and then the law , is as it were , enlightened by the gospel , doth fasten a command upon us to beleeve in christ . this is true , if you take the law strictly and seperately from moses his administration of it : but if you take it largely , as it was delivered by moses , then faith in christ was immediately commanded there , though obscurely , because ( as is proved ) it was a covenant of grace . you see then , that as in the transfiguration , there was christ , and moses together in glory ; so likewise may the law , and the gospel be together in their glory ; and it is through our folly , when we make them practically to hinder one another . though all this be true , yet if the gospel be taken strictly , it is not a doctrine of repentance , or holy works ; but a meere gracious promise of christ to the broken heart for sin ; and doth comprehend no more then the glad tydings of a saviour . it is true , learned men do sometimes speak otherwise , calling faith and repentance the two evangelicall commands , but then they use the word more largely , for the doctrine of christ and the apostles , but in a strict sense its only a promise of christ , and his benefits : and in this sense we may say , the gospel doth not terrifie , or accuse . indeed there are wofull threatnings to him that rejecteth christ ; yea more severe then to him that refused moses , but this ariseth from the law joyned in practicall use with the gospel . and in this sense also it is said to be the savour of death unto many . this ariseth not from the nature of the gospel , but from the law , that is enlightened by the gospel : so that he being already condemned by the law , for not beleeving in christ , he needeth to be condemned again by the gospel . if you say , may not the sufferings of christ make us to repent of sin , and all the love he shewed therein ? do not godly ministers , to work people into an hatred of sin , tell them the price of blood is in every sin committed ? is it not said , that they shall look upon him whom they have pierced , and mourn for their sins ? i answer , all this is true , but then these things work by way of an object , not as a command ; and it is from the law , that we should shew our selves kind unto him who loved us unto death ; so that the object is indeed from the gospel , but the command , to be affected with his death , because of his kindness therein manifested , doth arise from gods law : let therefore those who say , that the preaching of the gospel will humble men , and break their hearts for their sins , consider how that it is true , by the gospel as an object , by the law , as that which commands such affections to those objects . let the use of this doctrine be , to direct christians in their practicall improvement of law and gospel , without hindring each other . there are many things in christianity that the people of god make to oppose one another , when yet they would promote each other , if wisely ordered . thus they make their joy and trembling , their faith , and repentance , their zeal and prudence , the law and gospel to thwart one another ; whereas by spiritual wisdom they might unite them : take the law for a goad , the gospel for a cordial : from the one be instructed , from the other be supported : when thy heart is careless and dull , run thither to be excited ; when thy soul is dejected and fearfull , throw thy self into the armes of the gospel . the law hath a loveliness in it as well as the gospel : the one is a pure character and image of the holiness of god ; the other is of the mercy and goodness of god ; so that the consideration of either may wonderfully inflame thy affections and raise them up . lectvre xxviii . rom . . . for christ is the end of the law for righteousness to every one that beleeveth . as the physitian , ( saith peter martyr ) who intends to give strong physick which may expell noxious humours in the diseased body , doth prepare the body first by some potions to make it fluid and fit for operation : so paul , being sharply to accuse the jews , and to drive them out of their selfe righteousness , doth manifest his love to them , sugaring the bitter pill that they might swallow it with more delight , and this his love is manifested , partly by his expression [ brethren , ] partly by his affections and prayers [ my hearts desire and prayer . ] the occasion of this his affection is the zeale that they have for god , but in a wrong way : as the skillfull husbandman , that seeth a piece of ground full of weeds , and brambles , wisheth he had that ground , which by culture and tillage would be made very fruitfull . amo unde amputem , said the orator , i love the wit that needs some pruning . the luxuriancie is a signe of fertility . this zeale was not a good zeale , partly because it wanted knowledge , and therefore was like sampson without his eyes : partly because it made them proud , which the apostle fully expresseth in two particulars : , they sought to establish their owne righteousness . they sought , this did imply their willfull pride and arrogancy , and to establish , which supposeth their righteousness was weak and infirme , ready to fall to the ground : but they would set it up for all that , as the philistims would their dagon , though he was tumbled downe before the ark. . the apostle expresseth it signally , when he saith , they submitted not themselves to the righteousness of god ; in the originall , they were not submitted , in the passive signification , which still supposeth the great arrogancy that is in a man naturally , being unwilling to deny his owne righteousness , and to take christ for all . this being so , take notice by the way of a foule errour of the antinomian , who denying assurance and comfort by signes of grace , laboureth to prove , that an unregenerate man may have universall obedience , and sincere obedience , bringing this instance of the jews for sincere obedience . but sincerity may be taken two waies : first , as it opposeth gross hypocrisie , and so indeed the jews zeale was not hypocriticall , because they did not goe against their conscience : or , secondly , it may be taken as it opposeth the truth of grace , and so the jews zeale was not a true gracious zeale for the reasons above named . now my text , that is given as a reason , why the jews did look to their owne righteousness , & not that of gods , because they neglected christ , who is here said to be the end of the law for righteousness . the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 doth sometime signifie , the extreme and last end of a thing : thus mark. . . the end is not yet ; so those who are against the calling of the nation of the jews , bring that place , thes . . ver . . wrath is come upon them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as if there were no mercy to be expected . but this may admit of another exposition . sometimes the word is used for perfection and fullfilling of a thing , acording to the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , rom. . . shall not uncircumcision , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 if it fullfill the law ? so james . . if you fullfill the royall law. in this sense aristotle called the soul 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as that which did perfect : and the sacrifices before marriage , which was the consummation of that neer bond , or because of the cost then bestowed , were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . erasmus takes it in this sense here , and doth translate it perfection : for which beza doth reprove him , saying , he doth not remember that the word is so used any where . but that place , tim. . . the end of the commandment is charity , may seem to confirme this sense ; for , certainly , that phrase is no more then that in another place , love is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the fulfilling of the law. therefore i think , this is a great part of the meaning here , christ is the end , that is , the perfection , the fulness of the law. yet , i shall take in also the end of intention , or a scope , unto which the law-giver aimed when he gave the law : and this will be shewed in the particulars ; the doctrine is , that christ is the end of the law for righteousness to every beleever . for the opening of this consider , . that an end may be taken either for that of consumption and abolition ; or for that of perfection and confirming : finis interficiens , and finis perficiens , as austine called it . now , in the former sense , christ was the end of the ceremoniall law : the end abolishing ; although that was also an end of perfection to them : and so some understand it of the ceremoniall law , & the prophesies : they all shadowed out christ , and ended in him . and this indeed is a truth , but it is not pertinent to the scope of the apostle , who speaketh of such a law , that the jews expected righteousness by in the performing of it ; which must be the morall law only . now , when we speak of the morall law , having christ for the end of it , then in the second place that may be considered two wayes . . either rigidly , and in an abstracted consideration from the administration of it , as it doth require perfect obedience , and condemning those that have it not : now in this sense christ cannot be the scope , or end of the law , but it is meerly by accident , & occasionall , that a soul abased and condemned by the law doth seek out for a christ : only you must know , that the law even so taken doth not exclude a christ . it requireth indeed a perfect righteousness of our own ; yet if we bring the righteousness of a surety , though this be not commanded by the law , yet it is not against the law , or excluded by it ; otherwise it would have been unjustice in god to have accepted of christ our surety for us . . or else the law may be taken in a more large way for the administration of it by moses , in all the particulars of it ; and thus christ was intended directly , and not by accident ; that is , god when he gave the law to the people of israel , did intend that the sense of their impossibility to keep it , and infinite danger accrewing thereby to them , should make them desire and seek out for christ : which the jews generally not understanding , or neglecting , did thereby , like adam , go to make fig-leaves for their covering of their nakedness , their empty , externall obedience . according to this purpose aquinas hath a good distinction about an end ; that an end is two-fold : either such , to which a thing doth naturally incline of it self : or secondly , that which becometh an end , by the meere appointment and ordination of some agent . now the end of the law , to which naturally it inclineth , is eternall life to be obtained by a perfect righteousness in us ; but the instituted and appointed end , which god the lawgiver made in the promulgation of it , was the lord christ : so that , whatsoever the law commanded , promised , or threatned , it was to stir up the israelites unto christ . they were not to rest in those precepts or duties , but to go on to christ ; so that a beleever was not to take joy with any thing in the law till he came to christ , and when he had found him , he was to seek no further , but to abide there . now this indeed was a very difficult duty , because every man naturally would be his own christ , and saviour . and what is the reason , that under the gospel belevers are still so hardly perswaded to rest only on christ for righteousness , but because of that secret selfe dependance , within them . having premised these things , i come to shew how christ is the end of the law taken largely in the ministry of moses . and in the first place , christ was the scope and end of intention : god by giving so holy a law requiring such perfect obedience , would thereby humble and debase the israelites ; so that thereby they should the more earnestly fly unto christ , even as the israelite , stung by a serpent , would presently cast his eyes upon the brasen serpent . it is true , christ was more obscurely and darkly held forth there ; yet not so , but that it was a duty to search out for christ in all those administrations . and this you have fully set forth in that allegory which paul maketh corinth . . . i shall explain that place , because it may be wrested by the antinomian ; as if , because that kinde of ministery which was by moses , was to be done away and evacuated , therefore the preaching of the law was also to be abrogated : but that is far from the apostles scope ; for the apostle his intent there is to shew the excellency of the ministery of the gospel above that of the law , and that in three respects . . in regard one is the ministery of death and condemnation , the other of life and righteousness therefore the one is called letter , and the other spirit . now this you must understand warily , taking the law nakedly , and in it self , without the spirit of god , and the gospel with the spirit ; for , as beza well observeth , if you take the gospel without gods spirit , that also is the ministration of death , because it is as impossible for us to beleeve , as it is to obey the law by our own power : only life and spirit is attributed to the gospel , and not to the law ; because christ , who is the author of the gospel is the fountain of life ; and when any good is wrought by the law , it cometh from the spirit of christ . the second excellency is in regard of continuance and duration . the ministery of moses was to be made void and abolished ; which is to be understood of that jewish pedagogy , not of every part of it ; for the morall , as given by moses , doth still oblige us christians , as hath been already proved : but the ministery of the gospel is to abide alwaies ; that is , there is no new ministery to succeed that of the gospel ; although in heaven all shall cease . the third difference is in regard of glory : god caused some materiall glory to shine upon moses , while he gave the law , hereby to procure the greater authority and majesty to the law ; but that glory which cometh by the gospel is spirituall , and far more transcendent , bringing us at last into eternall glory . so that the former glory seemeth to be nothing in comparison of this : even as the light of a candle or torch seemeth to be nothing ( saith theophylact ) when the light of the sun ariseth . now the apostle , handling these things doth occasionally open an allegory , which had not paul by the spirit of god found out , we neither could , or ought to haue done it . and the consideration of that , will serve much for my present matter . i know divers men have divers thoughts about exposition of this place ; so that there seemeth to be a vail upon the text , as well as upon moses his face : but i shall plainly understand it thus ; moses his face shining when he was with god , and coming from him , doth signifie the glory and excellency of the law , as in respect of gods counsells and intentions ; for although the law did seem to hold out nothing but temporall mercies , devoid of christ and heaven , yet , as in respect of gods intention , it was far otherwise . now saith the apostle , the jews were not able to fix their eyes upon this glory ; that is , the carnall israelites did not behold christ in the ministery of moses , because a vail is upon their hearts . the apostle makes the vail upon moses to be a type of the blindness and hardness of heart in the israelite : so that , as the vail upon moses covered the glory of his face , so the vail of blindness and stupidity , upon the heart of the jews doth hinder them from the glory of the law , which was christ . and that this is so , doth appeare viz. where the israelite is denied to look stedfastly , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( the word in my text ) to the end of that ministery , which was to be abolished , and that end was christ : so that this text doth fully prove my intent , which is , that christ was in some measure a glorious object in the administration of the law , but the vail upon the israelites heart hindered the sight of it . now ( saith paul ) when it shall turn ( as we translate , or rather when they shall turn , for the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is observed to be used alwayes of persons , and though the word be in the singular number in the originall , yet , according to the custome of scripture , it may be understood plurally , because he speaks of a collective body : ) when , saith the text , this turning shall be , the vail shall be taken away : or rather , as camero well observeth in the present tense , it is taken away : for you cannot conceive that the jews shall be first turned unto god , and the vail afterwards to be taken away ; but they both are together . i will give another instance , that christ was the end of intention or aime in the dispensation of the law , from galat. . , . we were kept under the law , till faith came : wherefore the law was our school-master , to bring us unto christ . in which words , not the morall law simply taken , but the whole dispensation of the jews , is compared to the instruction of a school master . now , as a school-master doth not only beat or correct , but teach also and direct : thus the law did not only severely curb and keep from sin , but did also teach christ . hence we are said to be kept under the law ; which although some make an expression from the strict keeping and watching which souldiers in a garrison use to make , yet a learned man makes it to denote the duty of a school master , as one who is to give an account of such committed to his charge : in which sense cain said , am i my brothers keeper ? the law then as a school-master did not only threaten and curse , or , like the egyptian task-masters , beat and strike , because the work was not done , but did shew where power and help was to be had , viz. from christ only . in the second place christ is the end of perfection to the law : for , the end of the law being to justifie , and to bring to eternall life , this could not be attained by our own power and industry ; not by any defect of the law , but by reason of our infirmity . therefore christ he hath brought about this intent of the law , that we should be justified , and have life . if the end of humane laws be to make good and honest men , much rather is the end of the morall law appointed by god himself : but the law is so far from making us good , as that it worketh in us all evill , which effect of the law in himself the apostle acknowledgeth : so that as good food and nourishment received by a diseased stomack , doth increase the disease more , according to that rule , corpora impura , quantò magis nutrias , deteriora reddis ; thus it is in every man by nature : the law , which is for holiness and life , becometh to cause sin and death . christ therefore , that the law may have its end , he taketh our nature upon him , that the righteousness of the law might be fulfilled in us , . christ is the end of perfection of the law , in that the meere knowledge of the law , with the externall obedience only to it ; was not availeable to any benefit . therefore christ vouchsafeth his holy spirit unto us , regenerating of us , whereby we come in part to obey the law of god : so that the people of god have a righteousness or holiness of works but it is imperfect , and so not enabling us to justification ; and in this sense it is , that the people of god are said to keep gods commandements . so then , whereas our condition was so by sin , that we were neither able non willing to obey the law of god in the least degree , christ doth give us grace , and cureth us so far , that we are said to walk in his law. now herein was the great mistake of the jews , they gloried and boasted of the law , but how ? of the knowledge of it , and externall observation , without looking to christ ; and this was to glory in the shadow without the substance . . christ is the end of perfection of the law , in that his righteousness and obedience unto the law , is made ours , and so in him , as our surety we fulfill the law. i know this assertion hath many learned and godly adversaries , but as far as i can see yet , the scripture seemeth to hold it forth , rom. . there is a parallel made of the first adam and his off spring , with christ the second adam and his seed ; and the apostle proveth , that we are made righteous by christ , as sinners in him , which was partly by imputation , so , corinth . . ult . as christ is made our sin by imputation , so we his righteousness . so rom. . , . that which was impossible to the law — god sent his son that the righteousness of the law might be fulfilled in us , who walk not after the flesh , but after the spirit . i know there are answers made to these places , but the proper discussion of them will be in the handling of justification : only here is an obvious objection , if the righteousness of christ be made ours , so that we may be said to fulfill the law , then we are still justified by a covenant of works , and so there is no new covenant of grace . i answer , learned men , as beza and perkins , have affirmed , that we obtaine eternall life according to that rule , doe this and live , because of christs fulfilling the law as our surety ; for the imputation of it doth not make it cease to be our real righteousness , though it be not our inherent righteousness . but i see not why we need grant the consequence , [ viz. because christs fulfilling of the law is made ours therefore we have eternall life by the law : ] and the reason is , because this righteousness of christs is not ours by working , but , by beleeving . now the law in that command , do this and live , did require our personall working and righteousness ; so that we cannot be said to have salvation by that rule , because it is not the righteousness which we in person have wrought : and this will fully appear , if you consider in the next place the subject to whom christ is made righteousness , and that is to him that beleeveth : he doth not say , to him that worketh , so that we have not eternall life by our do this , but by beleeving , or resting upon christ his do this . and this phrase doth plainly exclude stapletons , and other papists observations on this place , as if the righteousness by faith , or of christ , were the same in kinde with the righteousness of works , differing only gradually , as an infant , and a grown man ; for , if so , the apostle would have said working , and not beleeving . it is a great skill in divinity to amplifie this righteousness of faith without works , so as neither the papist , or the antinomian may incourage themselves thereby : but of that in some other place . as you take notice of the subject [ beleever ] so the universality , every one , which doth take in both jew and gentile : therefore the jew could not , or ought not to think that those externall rites and observations could bring them to a true righteousness . lastly , consider in the text , for what end christ is thus the perfection of the law ; and that is for righteousness . the proper seat of handling this is in the doctrine of justification , only let me briefly answer a question made by some , whether the righteousness of faith , or that we have by christ , be the same in nature with the righteousness of works and of the law ? stapleton saith , they must needs be one , because the law will direct to no other righteousness then that of its own . it it true , the law strictly taken , will not properly and per se direct to any righteousness , but that which the law requireth ; yet by accident , and indirectly it may : yea , as it was given by moses , it did directly and properly intend christ , though not primarily , as some think ; but finding us unable to attain to its own righteousness , did then lead us unto christ : yet these two righteousnesses are divers , rather then contrary , ( unless in respect of justification , and so indeed its impossible to be justified by both those waies ) otherwise they are both together in the same subject , yea a righteousness of faith doth necessarily draw along with it in the same subject a righteousness of works , though it be imperfect and so insufficient to justifie . use . is christ the end of the law for righteousness ? then let the beleever bless and praise god for providing a righteousness , and such a righteousness for him . how destitute and naked was thy condition ? had justice taken thee by the throat , and bid thee pay what thou owest , thou couldst not have returned that answer , let me alone , and i will pay thee all . neither angels nor men could provide this righteousness for thee . dost thou thank god for providing clothes for thy body , food for thy belly , an house for habitation ? oh , above all thanke him that he hath provided a righteousness for thy soul . thou troubled soul because of sin , thou thinkest with thy selfe , oh if i had no sin , if i were guilty of no corruption , how well were it ! o ye glorious angels and saints , ye are happy , because ye have a righteousness ! why doest thou not consider , that god hath found out for thee , even for thee , in this world , a righteousness , whereby thou art accepted of him ? again consider it is such a righteousness that satisfieth and pleaseth god. thy holiness cannot content him for justification , but that of christ can . as the light of the stars and moon cannot dispell totally the darkness of the night , only the light of the sun can do that . lectvre xxix . mat . . whosoever therefore shall break one of these least commandements , and shall teach men so , shall be called the least in the kingdome of heaven . our saviour being to vindicate the law from all corrupt glosses of the pharisees , he doth in the first place ( as chrysostome thinketh ) remove the odium that might be cast upon him as if he did indeed destroy the law ; for it was then generally received , that only was law , which the pharisees declared to be so . and this he doth , ver . . think not that i am come to destroy the law. the reason he giveth , is from the perpetuall nature of the law : heaven and earth , the whole world shall sooner fall into pieces , then any tittle of that . and the prophets are here joyned to the law , not so much in regard of their predictions , as because they were interpreters of the law. the second reason is from that evill which shall befall him , that doth breake it , and here he nameth a two-fold antinomianisme ; one in life and practise , the other in doctrine : that in practise is aggravated , though it be one of the least commandments . they are called least , either because the pharisees thought them so , or else indeed , because all the commands of god were not concerning duties of the same consequence . the other in doctrine is expressed in those words , and teach men so . i cannot consent to beza's interpretation , making this teaching to be by example and life , or else 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to be put for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , although , as if the meaning were , he that doth break in his practice my commandment , although he do teach them in doctrine . there is no necessity of offering such violence to the text. but if we interpret it of doctrinall breaking , it will very well agree with the pharisees , who made void the commandements of god by the doctrines of men . the evill that shall befall such , is in those words , [ he shall be called the least in the kingdome of heaven . ] called is put for is . or be ; he shall be the least . by kingdom of heaven , some understand that kingdome of glory in heaven ; and by least , meane nullus , none : he shall not at all enter into the kingdome of heaven . others by kingdom of heaven do understand the church of god , and so they express it , when there shall be a reformation in the church , and truth should break forth , which was presently to come to pass , then those corrupt teachers , who would poyson men , should be discovered , and then they should be least , that is , of no account ; even as it fell out to the pharisees , though for a while they were highly esteemed among men . i forbeare to touch upon that question hotly disputed with some , whether our saviour doe in this discourse meane only the morall law , or the ceremoniall also , as being not to my purpose . that it is meant cheifly of the morall law , appeareth by the instances which christ giveth . from the text thus opened , i observe , that any doctrine , which teacheth tho abrogation or dissolution of the law , is highly offensive unto god. for the opening of this consider , that the doctrines of men may either directly , and with an open face overthrow the law , as the marcionites and manichees did : or else interpretatively , and more covertly ; and that is done three waies . . when they make not the law of god to be so full and exensiue in it's obligation , as indeed it is ; and thus the pharisees they made void the law , when they affirmed outward acts to be only sins : and thus the papists do in part when they make the law no further to oblige , then it is possible for us to keep it . these doctrines doe in tantum , though not in totum destroy the law. . when men hold such principles , that will necessarily by way of consequence inforce the abrogation of the law. and thus , though some antinomians do expresly and boldly assert the abolishing of it , at least to beleevers ; yet those that have more learning and wariness , do disclaime it , and account it a calumny : but even at the same time , while they do disclaime it ( as it is to be shewed presently ) they hold such assertions , as do necessarily inferr the abrogation of it . . the law may be doctrinally dissolved , by pressing such duties upon men , whereby they will be necessitated to breake the commandments of god. thus when the pharisees taught , that whatsoever vow was made concerning any gift , they were bound to do it , though thereby they were disinabled to honour their parents . and this is most remarkably seen in the church of rome , who , by the multitude and necessity of observation of their church precepts and constitutions , make men to break the plain commandments of god. now i shall briefly instance generally about those errours that dissolve gods law , and then more particularly about the antinomian doctrine . the first hereticks that opposed it , were the marcionites and manichees , marcion ( whom tertullian calls mus potincus , because of his arroding and gnawing the scripture , to make it serviceable to his errours ; he , among other errours , broacheth this , that the old law ( as he calls it ) was evill , and that it came from an evill god . to him in this opinion succeeded manes , ( who truly might be so called , because of his madness , although his followers to take away that reproach , called him mannichaeus , as much as one that poured forth manna , as some affirme . ) this mans errours , though they were very gross , yet so propagated , that it was two hundred yeares ere they were quieted . these and their followers all agreed in this , to reject this law of god. there were also hereticks called anomi , ( as it were sine lege ) but their errour was , to think that they could by their knowledge comprehend the divine nature : and they gave somuch to this their faith , that they held , whosoever should imy brace it , though he committed hainous and atrocious sins , yet thes should do him no hurt , epiphan . lib. . haeres . . but to let pasthese , we may say , popery is in a great part antinomianisme . and antichrist he is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that lawless one : for , is not their doctrine , that the pope may dispense with the laws of god , and that the pope and christ have the same consistory , antinomianisme ? and in particular , we may instance in their taking away the second commandement out of some carechismes , because it forbiddeth the worshipping of images . hence vasquez , one of their goliahs , doth expresly maintain , that the second commandement did belong only to the jews , and so not obliging us christians , thinking it impossible to answer our arguments against their image-worship , if that be acknowledged still in force . is there not also a generation of men , who do by doctrine deny the fourth commandement ? how many late books and practises have been for that opinion ? but hath it not fallen out according to the later exposition of my text , that they are the least in the kingdome of heaven ; men of little account now in the church while reforming ? i might likewise speak of some anabaptists , ( for there are of that sect that disclaim the opinion ) who overthrow the fifth commandement by denying magistracy lawfull for christians . but i will range no further : the antinomians do more fall against this text then any , in that they do not only by doctrine teach the dis-obligation of the least commandement , but of all , even of the whole law. this doth appeare true in the first antinomians in luthers time , of whom islebius was the captain : he was a school-master , and also professor of divinity at islebia . it seemeth he was a man like a reed shaken with every winde : for first he defended , with the orthodox , the saxon confession of faith ; but afterwards was one of those that compiled the book called the interim . when luther admonished him of his errour , he promised amendment , but for all that secretly scattered his errour ; which made luther set forth publikely six solemn disputations against the antinomians , that are to be seen in his works : which argueth the impudency of those that would make luther on their side . by these disputations of luthers he was convinced , and revoked his errour , publishing his recantation in print : yet when luther was dead , this euripus did fall into his old errour , and publikely defended it . now how justly they might be called antinomists , or , as luther sometimes , nomomachists , appeareth by these propositions , which they publikely scattered about in their papers : as . . that the law is not worthy to be called the word of god. . to heare the word of god , and so to live , is a consequence of the law. . repentance is not to be taught out of the decalogue , or any law of moses , but from the violation of the son of god in the gospel . . we are with all our might to resist those , who teach the gospel is not to be preached but to those whose hearts are first made contrite by the law , these are propositions of theirs set downe by luther , against which he had his disputations , vol. . sousselberge , lib. contra antin . pag. . relateth more : as , . the law doth not shew good works , neither is it to be preached that we may do them . . the law is not given to christians ; therefore they are not to be reproved by the law. . the preachers under the gospel are onely to preach the gospel , not the law ; because christ did not say , preach the law , but gospel to every creature . . the legall sermons of the prophets doe not at all belong to us . . to say that the law is a rule of good works , is blasphemy in divinity . thus you see how directly these oppose the law , and therefore come under our saviours condemnation in the text : yet at other times , the proper state of the question between the orthodox & antinomists , seemeth to be , not , whether a godly man do not delight in the law , and do the works of the law ; but , whether he doth it , lege docente , urgente , & mandante , the law teaching , urging , and commanding : as for the latter antinomians , doctor taylor , and mr. burton , who preached , and wrote against them , do record the same opinions of them . doctor taylor in his preface to his book against them , saith , one preached , that the whole law , since christs death , is wholly abrogated and abolished . another , that to teach obedience to the law , is popery . another , that to do any thing , because god commands us ; or to forbeare any sin , because god forbids us , is a signe of a morall man , and of a dead and unsound christian . others deliver , that the law is not to be preached , and they that do so , are legall preachers . master burton also in his book against them , affirmeth , they divided all that made up the body of the church of england into hogs or dogs : hogs were such that despised justification , living in their swinish lusts ; dogs such , who sought to be justified by their works . he tels of one of their disciples , that said , away with this scurvy sanctification ; and that there is no difference between godly here , and in their state of glory , but only in sense and apprehension . many other unsavory assertions are named by those authors , but these may suffice to give a tast of their opinions ; for it is elegantly spoken by irenaeus , in such falshoods as these are , lib. . c. . adversus haereses . we need not drink up the whole sea , to tast whether the water be salt ; but as a statue that is made of clay , yet outwardly so gilded , that it seemeth to be gold , if any man take a piece of it in his hand , and discover what it is , doth make every one know what the whole statue is : so it is in this case . for my my part , i am acquainted with them no other waies , but by their books which they have written , and in those every errour is more warily pressed , then in secret . there i finde , that sometimes they yeeld the law to be a rule of life , yea they judge it a calumny to be called antinomists ; and if so , their adversaries may be better called antifidians and it cannot be denied , but that in some parts of their books there are wholsome and good passages ; as in a wood or forrest , full of shrubs and brambles , there may be some violets and primroses : yet for all this , in the very places where they deny this assertion as theirs , they must be forced to acknowledge it . the author of the assertion of free-grace , who doth expresly touch upon these things , and disclaimes the opinion against the law , pag. . and pag. . yet he affirmeth there such principles , from whence this conclusion will necessarily follow . for first , he makes no reall difference either in scripture , or use of words , between the law reigning and ruling ; so that if the law rule a man , it reigneth over him , now then , they deny that the law doth reign over a beleever ( and so do the orthodox also ) therefore they must needs hold , that it cannot be a rule unto him . and then , pag. . whereas doctor taylor had said , the apostle doth not loose a christian from the obedience to the law , or rule thereof ( he adds , ) he dare not trust a beleever without his keeper , as if he judged no otherwise of him , then of a malefactor of newgate , who wouldrob and kill , if his gaoler be not with him . again , this is most clear by what he saith , pag. . he refuteth that distinction of being under the mandatory power of the law , but not the damnatory : he makes these things inseparable , and as impossible for the law to be a law , and have not both these as to take the brains and heart from a man , and yet leave him a man still . now then , seeing he denieth ( and so do all protestant writers ) that a beleever is under the damnatory power of the law , he must also deny , he is under the mandatory , because ( saith he ) this is inseperable . i will in the next place give some antidotes against this opinion , and the authors thereof . luther calleth them , hostes legis , organa satanae : he saith , their doctrine is more to be taken heed of , then that of the papists ; for the papists , they teach a false or imperfect repentance , but the antinomians take all away from the church . rivet cals them furores antinomorum . in the first place , awe thy heart with a feare against errours in doctrine as that which may damn thee , as well as an open gross sin . consider that place galat. . . where heresies are reckoned among those sins that are very gross , and do exclude from the kingdome of heaven : and that he takes heresies there in a religious consideration , is plain , because it 's made to differ from seditions , strifes , and variances . neither do thou please thy self in that question , what is heresie ? tu haereticus mihi & ego tibi ; for , the apostle makes it there a manifest work of the flesh , and john . see how much afraid the people of god ought to be of any evill doctrine ; and there the apostle cals evill doctrine , evill deeds . . look to all the places of scripture , as well as some only . that is a perpetuall fault among the antinomians : they only pitch upon those places ; where christ and his grace is spoken of ; but not of those texts , where duties are commanded , especially those places of scripture , where the law of god is wonderfully commended , for the many reall benefits that come by it ; where likewise the perpetuity and eternity of it is much celebrated . lex dei in aeternum manet ; vel implenda in damnatis , vel impleta in beatis , the law of god abideth alwaies , either to be fulfilled in the damned , or already fulfilled in those that are made happy , said luther . what a curb would it be unto this errour , if they would consider , with what an holy passion & zeal the apostle doth deny , that he destroyeth the law , making this very objection to himself , do we then make void the law ? god forbid . now can we thing that the apostle , who in the third chapter to the romans , doth so vehemently deny , that he destroyeth the law , should so much forget himself , as in the fourth chapter to abolish it ? no ordinary man would fall into such a contradiction . . do not affect applause among people , as having found some new nigher way about christ and grace , then others have . i have observed this itching humor in the antinomian sermons printed ; where they will call upon their hearers to mark ; it may be they shall heare that , which they have not heard before , when the thing is either false ; or , if it be true , is no more then ordinarily is taught by others . but now , when men desire to be applauded in the world , they suggest to their inward disciples , as if they had found out some new unheard thing ; and their followers broach it abroad , and so they come to be exalted . thus they do like psaphon the libyan : it 's reported of him , that he kept ten tame birds at home , and taught them to sing , magnus deus psaphon ; and when he had done so , he let these birds flye into the woods and mountains , where all the other birds learned the same song of them : which the libyans perceiving , and thinking it no plot , but a divine accident , decreed to sacrifice to psaphon , and to put him in the number of their gods. . do thou diligently study fundamentals and the principles of religion . as the childe groweth crooked , for not being well looked to at first ; and many errours do now spread themselves , because men are not well catechised . they build without a foundation . it was a grave complaint of maximus an ecclesiasticall writer , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . it is a great matter to have a sound and accurate knowledge in matters of religion . it was a wise speech of aristides , who being demanded by the emperour to speak to something propounded ex tempore , answered , propound to day , and i will answer to morrow , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , we are not of those who vomit or spit out things , suddenly , but take time to be diligent , and considering . . when thou doest begin to encline to an opinion , that differeth from the learned and godly , be not too rash and precipitate in publishing it . the apostle giveth a good rule , rom. . hast thou faith ? have it to thy self . he doth not there command a man to equivocate , or dissemble , and deny a truth ; but not needlesly to professe it , when it will be to the offence of others . cyprian reproving the rashnesse of those christians that would goe on their own accord to the heathen magistrates , professing themselves christians , whereby they were put to death , hath a good and elegant speech , confiteri nos magis voluit , quàm profiteri : he doth confesse , that doth it , being asked and demanded ; he doth professe , that doth it out of his own free accord . . consider , that antinomianisme is the onely way indeed to overthrow grace and christ . for he sets up free grace and christ , not who names it often in his book , or in the pulpit , but whose heart is inwardly and deeply affected with it . now , who will most heartily and experimentally set up christ and grace of these two , i. who urgeth no use of the law , who takes away the sense or bitternesse of sin , who denieth humiliation ; or he , who discovers his defects by the perfect rule of the law , whose soule is inbittered and humbled because of these defects ? certainly , this later will much more in heart , and reall affections set up free grace . finis . the table a. the law abolished as a covenant , not as a rule . page the law abrogated to beleevers in six particulars . p. . . . three causes of the abrogation of the ceremoniall law , which agree not to the morall . p. six abuses of the law. p. . . . conversion and repentance are our acts , as well as the effects of gods grace . p. whether adam was mortall before his eating of the forbidden fruit . p. whether adam in his innocency can be considered in his naturalls or supernaturalls , answered in two positions . p. whether adam needed christs help . p. whether god required lesse of adam then us . p. amorem mercedis a godly man may have in his obedience , though not amorem mercenarium . p. what help the angels had by christ . p. calvin's two reasons why angels needed christs mediation . ibid. some antecedaneous works upon the heart before grace be bestowed . p. foure limitations concerning those antecedaneous works . p. . the first antinomian . p. antinomian differences betwixt the law and gospel confuted . p. . the antinomian why most inexcusable . p. the antinomian distinction of the law being abolished as a law , but still abiding in respect of the matter of it , a contradiction . p. the antinomian arguments overthrow the use of the law to unbeleevers as well as beleevers . p. the opinion of the old antinomians . p. the word [ as ] taken variously . p. antidotes against antinomian errors . p. antinomianisme is the onely way indeed to overthrow christ and grace . p. b. a blaspheming monk. p. blaspheming papists . ibid. the lay-mans book is the whole universe . p. master burton his report of antinomians . p. c. a cordiall for a broken heart . p. . contradictions of the antinomians . p. a community of goods not taught by the law of nature . p. christs incarnation cannot be supposed , but upon supposition of adams fall . p. it is an hard matter so to set up christ and grace as not thereby to destroy the law . p. the doctrine of christ and grace in the highest manner doth establish not overthrow the law . p. god entred into covenant with adam , in giving him a law . p. . what a covenant implyes . p. why the covenant of grace is not still a covenant of works , seeing works are necessary . p. a covenant of friendship . reconciliation . p. no covenant properly so called can be betwixt god and man. p. how god can covenant with man. ibid. five reasons why god would deal with man in a covenant-way , rather then in an absolute way . p. . a vast difference betwixt the covenant in innocency and in grace . p. . the morall law delivered as a covenant , proved . p. it hath the reall properties of a covenant ib. in what sense the law may be a covenant of grace , explained . p. . arguments proving the law a covenant of grace . p. . . objections answered . p. doctor crisp confuted . p. cursing taken two waies : potentially , so a law is alwaies condemning . . actually , so a law is not ever condemning . p. d. decalogue resembled to the ten predicaments by martyr , and why . p. the threatning of death to adam if he did eat , &c. was fulfilled , in that he became then mortall , and in a state of death , not naturall onely , but spirituall and eternall also . p. . determination to one , takes not away naturall liberty , nor willingnesse or delight in sin , which we are inevitably carried unto . p. . three generall waies of proving the deity of christ . p. . foure differences ( not substantiall but accidentall ) betwixt the law and the gospel . p. , &c. fire differences betwixt the law and gospel strictly taken . p. . . &c. all doctrine reduced to three heads : credenda . speranda . facienda . p. . . e. the papists notion concerning ecclesia , and synagoge confuted . p. if the antinomians end were only to put men off from glorying in themselves , to deny the concurrence of workes to justification , it were more tolerable . p. but then their books and end were not reconcileable . p. other ends which might make the antinomians more excusable . ibid. how christ is the end of the law for righteousnesse . p. end taken two waies . ibid. four waies christ is the perfective end of the law. p. . aquinas distinction of end . p. eudoxus said hee was made to behold the sun . p. exhortations , to what purpose given to them who have no power of themselves to doe them . p. errours in doctrine damnable . p. f. fables and fictions how used by the fathers . p. how faith justifies . p. two acts of faith. p. faith and repentance wrought both by the law and gospel . p. . the same object may be known by the light of faith and of nature . p. whether justifying faith were in adam at first . p. faith of adherence and dependence in adam in innocency , and shall be in heaven . p. adams faith considered as an act of the soul , not as an organ to lay hold on christ . p. finger of god. p. finis indigentiae & assimilationis . p free-will by nature . p. arguments for free-will answered . p. . g. genealogies how usefull , and how vain . page how the gentiles are said to be without a law. p. who are meant by the word [ gentiles . ] p. the gospel and law may be compared in a double respect . p. . the word gospel ] taken two wayes . p. whether the gospel be absolute or no. p. gospel taken strictly is not a doctrine of repentance or holy works . p. all good morally is good theologically . p. good works , how taken . p. foure things required to the essence of good works . ibid. the word [ grace ] used sometimes for the effects of grace , but more commonly for the favour of god. p. grace is more then love . p. grace implyeth indebitum and demeritum of the contrary , as cameron observes . ibid. what grace the pelagians acknowledge . ib. much may be ascribed to grace , and yet the totall efficacy not given to it . p. h. a two-fold writing of the law in the heart . p. the properties of holinesse fixed at first in adams heart . p. humiliation comes by the gospel as an object , by the law , as that which commands such affections to those objects . p. i. image and likeness signifie one thing . p. an image four-fold . ibid. wherein the image of god in man consists . p. . . a thing said to be immortall , four wayes . p. the injudiciousnesse of the antinomians . p. whether adams immortality in innocency be not different from that which shall be in heaven . p. some things just because god wills them : other things are just and therefore god wills them . p. the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 credere justifies no more in it self , then other acts of obedience . p. expecting justification by the law very dangerous . fifteen evils which follow thereupon mentioned . p. . . . . . . islebius , captain of the antinomians in luthers daies . p. how the justification of the gospel may stand with the good works of the law done by grace . p. paul and james reconciled in the point of justification . page k. kingdome of heaven ] not mentioned in all the old testament . p. how [ kingdome of heaven ] is taken in mat. . . p. l. how the law is good in eight respects . p. . . . . . . four acts of the law. p. . the two-fold use of the law to the ungodly . p. . a four-fold use of the law to the godly . p. cautions concerning the law. p. . the word law diversly taken . ibid. & p. . . the law must not be separated from the spirit . p. . to do a cōmand out of obedience to the law , and out of love , are not opposite . p. . christs obedience to the law exempts not us from obedience our selves , unlesse it be in respect to those ends for which he obeyed . p. . the law condemnes a beleevers sinne , though not his person . p. . inability to keep the law , exempts not from obedience to it . ibid. . distinguish betwixt what is primarily , and what is occasionally in the law. ibid. that the law hath a directive , regulating , and informing power over a godly man. p. the derivation of the word [ lex . ] p. two things necessary to the essence of a law. p. how the law becomes a covenant . ibid. the division of lawes in generall , and why the morall law is so called . p. the law of moses differs from the law of nature in three respects . p. . why the law was given in the wilderness . ib. that the law was in the church before moses . p. three ends of the promulgation of the law. p. . the law of moses a perfect rule . p. three differences betwixt the judiciall , ceremoniall , and morall law. p. generall observations about the law , and the time of the delivery of the law. pag. . . . &c. three observations concerning the preparation to the delivery of the law. p. whether the law , as given by moses , do belong to us christians . p. . proved . p. . objections answered . p. though the law , as given by moses , did not belong to christians , yet the doctrine of the antinomians holds not . p. christ in the gospel onely interprets the old law , and doth not adde new : proved by four reasons . p. . the law is spirituall in the old testament , as in the new : proved by eight instances . p. . . &c. the law may be instrumentall to worke sanctification and conversion . pag. . . cautions about it . ib. & . proved by six reasons . p. . & . objections answered . p. the law is established three wayes by the gospel . p. three affections belonging to a law. p. three parts in the law. p. those phrases considered [ of the law ] and [ without the law ] and [ under the law ] and [ in the law. ] p. a two-fold being under the law. ibid. false differences given by some betwixt the law and the gospel . p. law and gospel united in the ministery . p. law opposed and oppugned two waies : directly . interpretatively . page law opposed interpretatively three waies . p. law by men abrogated or made void three waies . ibid. a three-fold liberty . p. a three-fold light . p. m. ministery of the gospel more excellent then that of the law in three respects . p. moses in his zeal breaking the tables , vindicated from rashnesse and sinfull perturbation . p. the opinion of souls - mortality confuted . p. . adam was under the morall law in innocency . what 's meant by the word [ morall . ] p. morall law bindes two waies . p. . that the morall law perpetually continues a rule and law , proved by four reasons . p. . objections against the continuance of the morall law , answered . p. morall law having christ for the end of it , may be considered two wayes . p. marcionites , and manichees the first hereticks that opposed the law. p. n. what is meant by the word [ nature ] in scripture . p. . there is a law of nature written in mens hearts . p. wherein the law of nature consists . p. four bounds of the law of nature . p. light of nature considered in a three-fold respect . p. a three-fold use of the light of nature . p. the light of nature obscured three waies . p. the light of nature is necessary ( though insufficient ) in religious and morall things . p. . it 's necessary two waies . ib. see p. . . the light of nature no judge in matters of faith . p. it 's no prescriber of divine worship . p. natures insufficiency described in three reasonings . ibid. the mystery of the trinity and incarnation of christ , cannot be found out by the light of nature . p. how farre nature will reach in some other things . p. . . man by the power of nature wholly unable to performe good actions , proved by . arguments . p. nature cannot dispose , or prepare a mans self for justification , or sanctification . p. . proved by four reasons . p. . all works of meere nature are sins before god , proved by foure reasons . p. the etymology of the word [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] . p. o. corrupt glosses of the pharisees concerning oathes reproved . p. promissory oathes dangerous . p. the obedience of the saints implies obedientiam servi , though not obedientiam servilem . p. christs active obedience to the law imputed to beleevers . p. the obligation of the law of nature is from god. p. gods promises are obligations to himself , not to us . p. why the old covenant is called old . p. how an opinion may corrupt the life . p. whether originall sin may be found out by the meere light of nature . p. p. palemon converted from his drunkenness by plato's lecture , which he came to deride . p. papists make three false differences betwixt the law and the gospel . p. paul and james reconciled in the point of justification . p. the perpetuity of the obligation of the law of nature . p. a distinction of a three-fold piety confuted . p. the law of god by moses is so perfect a rule , that christ added no new precept to it . p. different phrases used concerning the ceremoniall law , which are never applyed to the morall law . p. ● the opinion of the pharisees concerning the law. p. why , besides the morall law , a positive law was given to adam in innocency . two reasons . p. . the positive law did lay an obligation on adams posterity . p. the seven precepts of noah ▪ what the thalmudists speake concerning them . p. it 's a generall rule that the pressing of morall duties by the prophets in the old testament is but as an explanation of the law. p. the primitive christians held it unlawfull to kill in defence . p. capitall punishments lawfull in the new testament . p. . to what purpose are exhortations to them who have no power to obey . p. popery in a great part antinomianisme . page r. why a reason is rendred by god for the fourth commandement , rather then others . p. remission of sinnes under the law plenary , as well as under the gospel , proved against the antinomian . p. . . repentance how taken . p. . resemblances of the trinity cōfuted . p. . every rule hath vim praecepti as well as doctrinae . p. to do a duty because of reward promised , is not slavish and unlawfull . p. revenge forbidden in the old testament , as strictly as in the new. p. . righteousnesse of the law and gospel differ much . p. whether we may be now said by christ to be more righteous then adam in innocency . p. the law of retaliation , matth. . . opened . p. the properties of the righteousnesse at first fixed in adams heart . p. whether righteousnesse were naturall to adam . p. s. the sabbath in innocency not typicall of christ . p. satan cannot work beyond a morall perswasion , as god doth in conversion . p. what the word [ sanctifie ] implies . p. . how the jewes were in more servitude then christians . p. sinners . outward which are majoris infamiae . sinners . inward which are majoris reatus . p. sincerity taken two waies . p. socinians and papists make additions in the gospel , besides what was in the law. p. . why the shell-fish was unclean to the jewes . p. law called spirituall in a two-fold sense : . effective . . formaliter . p. how the state of innocency excelled the state of reparation in rectitude , immortality , and outward felicity . p. the state of reparation excells the state of innocency in certainty of perseverance . ib. eudoxus said he was made to behold the sun . p. summe of all heavenly doctrine reduced to three heads : credenda . speranda . facienda . p. symbolicall precept . p. t. teaching nova , & novè . p. tully said that the law of the twelve tables did exceed all the libraries of philosophers , both in weight of authority , and fruitfulnesse of matter . p. . the threatnings of the gospel against those who reject christ , arise from the law , joyned in practicall use with the gospel . p. tree of knowledge . p. whether the tree of life was a sacrament of christ to adam or no. p. no truth in divinity doth crosse the truth of nature . p. doctor tayler his report of antinomianisme . p. v. the reason of the variety of gods administrations in the two t. p. a two fold unbelief : negative which damnes none . positive which damnes many . p. unbelief a sinne against the law as well as against the gospel . p. how god justifies the ungodly . p. . w. ministers ought to be wary , so to set out grace , as not to give just exceptions to the papists , and so to defend holy works , as not to give the antinomians cause of insultation . p. . warre lawfull under the gospel . p. will , serious , and efficacious : the distinction examined . p. how the word in generall is the instrument of conversion . p. . . two rules about it , proved . p. word ] how used . p. works denyed by the antinomians to be a way to heaven . p. there have been dangerous assertions concerning works , even by those who were no antinomians , out of a great zeal for the grace of god against papists . p. the presence of good works in the person justified , denied by the antinomians . p. . they deny any gain or losse to come by them . no peace of conscience comes by doing good works , nor lost by omitting them . p. . which is confuted ibid. they deny good works to be signes or testimonies of grace . p. . confuted . ibid. upon what grounds are the people of god to be zealous of good works . p. the antinomian erreth two contrary waies about good works . p. distinction betwixt saying that good works are necessary to justified persons , and that they are necessary to justification . p. good works necessary upon . grounds . p. . . . . . . . . a table of divers texts of scripture , which are opened , or vindicated by this treatise . genesis . chap. ver. page . exodus . . leviticus . . numbers . deuteronomy . samuel . sam. . kings . kings . psalme . . & . & isaiah . jeremiah . . ezek. .   daniel . zech. . matthew . .   .   mark. luke . john. acts.   romanes .   .         . . .   per totum .       . corinthians .   corinthians . galat. .         . . . . ephesians . .     . philip. . thes . . timothy . . timothy . titus .   hebrewes .     . . . .   ult . jam. . peter . . peter .   . . finis . notes, typically marginal, from the original text notes for div a -e 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 notes for div a -e 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . clem. alex. notes for div a -e the text opened . . the law is good in respect of the matter . . in respect of the authority of it . . it 's instrumentally good . . the law is good , in respect of its sanction . . in respect of the acts of it . * assert . of free grace , pag. . . in respect of the end . . in respect of the adjuncts . . in respect of the use of it . . because it restrains and limits sin in the ungodly . . because it condemnes them . . it quickens the godly against sin and corruption . . it discovers sin unto them . . it makes them disclaim all their own righteousnes . . it makes them set an higher value of christ and his benefits . . the law , according to the use of the word in the scripture , is not onely a strict 〈◊〉 of things to be done by way of command ; but denoteth any heavenly doctrine , whether it be promise , or precept . the acceptions of the word law in scripture , are divers . . the law and the spirit of god must not be separated . . obedience and love oppose not one another . . christs obedience exempts not us from ours . . beleevers sins condemned , though not their persons . * dr crisp . . inability to keep the law , exempts not from obedience to it . * dr crisp . . the law , though primarily it requireth perfect holinesse , yet it excludes not a mediatour . the law , though it cannot justifie us , is notwithstanding good , and not to be rejected . grace and christ not to be advanced oppositely to the law. the abuse of the law no derogation to it . . the law is abused , when converted to unprofitable disputes . . when , in the handling of it , respect is had to worldly ends . . when men deny it . . when they misinterpret it . . when they oppose it to christ . . when they expect justification by it . . justification by the law overthrowes the nature of grace . . opposeth the fulnesse of christ . . destroyes the true doctrine of justification . . overthrows justifying faith . . discourageth the broken-hearted sinner . . brings men into themselves . . overthrowes the doctri●e of imputed righteousnesse . . keeps a man slavish in all his duties . . joyns a mans own graces to christs mediation . . overthrowes hope . . robs god of his glory . . makes more in sin to damne , then in christ to save . . overthrowes the doctrine of sanctification . . takes away the doctrine of the law. . overthroweth the consideration of man while he is justified . ministers ought so to set forth grace , and defend good works , as thereby to give the enemy neither cause of exception , nor insultation . . antinomians deny works to be a way to heaven . . they deny their presence in the person justified . . they deny any gain or losse to come by them . . they deny them to be signes of grace . how god may be said to justifie the ungodly . foure things required to the essence of good works . good works are necessary : . because they are the fruit of christs death . . because ( in respect of evill workes ) there is some analogy between heaven and them . . because a promise is made unto them . . because testimonies assuring us of our election . . because we cannot be saved without them . . because they are a defence against sin● . because necessary by a naturall connexion with faith , and the spirit of god. . by debt & obligation . . by command of god. thes . . . rom. . . . by way of comfort to our selves . . because god is glorified by them . . because others are benefited thereby . . because godlinesse inherent is the end of our faith and justification . the law to a godly man is a delight , not a burden . the godly are under the desert of the curse , but not the actuall condemnation of the law. the law , in the restraining power thereof , was not made for the righteous , but unrighteous . . the true worship of god cannot be diseerned from false , but by the law. . the depth of sin cannot be discovered without it . who meant by gentiles . how the gentiles are said to be without a law. how said to do the things of the law by nature . the distinction of morall and theologicall good rejected . what is here meant by nature . a two-fold writing of the law in mens hearts , and which here meant . the law written in mens hearts two waies . rom. . . the law of nature consists in those common notions which are ingraffed in all mens hearts . some fragments onely of this law left in us . those common notions , in which this law consists , are in us by nature . foure bounds of the law of nature . the obligation of the law of nature is from god. the obligation of the law of nature is perpetual and immutable . the light of nature is a remnant of gods image . . the light of nature usefull and necessary for the making of wholsome lawes in common-wealths . . it instigateth to good duties towards god and man. . it makes men inexcusable . the light of nature , as corrupted by sin , is an enemy to god and goodnes . the light of nature obscured three wayes . the light of nature inform'd by gods word an excellent help . the light of nature , as it is a relict of gods image is necessary in religious and morall things , and that two wayes . though some divine truths may transcend the reach of nature , none do crosse the truth thereof , as it is the remnant of gods image . faith and the light of nature go to the knowledge of the same thing different wayes . the light of nature a necessary instrument , but no judge in matters of faith. nature insufficient to prescribe divine worship . . because it would have all the worship of god sensible and pleasing to the eyes . because it 's prone to appoint mediatours between god and us . . because it performes all duties by way of compensation & merit . that there is a god , may be known by the light of nature . the mysterie of the trinitie , and the incarnation of christ cannot be found out by the light of nature . the light of nature insufficient for salvation . the patriarchs did not offer sacrifices by the light of nature , but god revealed his will to adam to be so worshipped . originall sin can onely be truly knowne by scripture-light . matth. . . expounded . communion of all things no precept of nature , and the apostles practise of it was only occasionall , not binding to posterity . god is more off ended with those that abuse gospel light , then those that abuse the light of nature . three sorts of christians little better then heathens . there is in man a natural power , by the help of reason , to chuse or refuse this or that thing . this naturall power in man not able to performe naturall actions without gods generall assistance . man by the power of nature wholly unable to performe good actions . . because our natures are full of sin and corruption . . because grace and conversion are the work of god. . because glory is to be given to god onely , not to our selves . nature of it self cannot dispose for justification , or sanctification : and the reasons why . there are , and may be some preparatory and antecedaneous works upon the heart before justification or sanctification . determination to one kind of acts takes not away liberty . a threefold liberty . determination to sinne , takes not away that delight in sinne which man is inevitably carried out unto . much may be ascribed to grace , and yet the totall efficacy not given unto it . the outward act of a commandement may be preformed by the power of nature . whatsoever meere naturall men doe , is sin before god ; because . the act wants faith , the person reconciliation with god. . it proceeds not from a regenerate nature . . 't is not done in reference to gods glory . there is no promise annexed to any act that wants faith . there is in mans nature a passive capacity of grace , which is not in stones and beasts . to presse a duty , and yet to acknowledge gods grace or gift to do it , is no contradiction . mans inability to observe gods precepts , maketh not vo●d the nature of the precepts , because this in ability proceeded from mans owne fault . a thing said to be impossible three waies . gods commands , though they be not a measure of our power , may serve to convince , humble , &c. necessity of sinning hinders not the delight and willingnesse man hath in sin , and consequently god may reprove him for his transgressions . * cap. . l. . ethic. ad nicom . though god works all our good in us , yet exhortations are the instrument wherby he works it . how conversion and repentance may be said to be our acts . gods working upon the heart of a sinner for conversion , excludes not mans working . though wicked men cannot but sinne in praying and hearing , yet they are bound to these duties . god doth not bind himself to this way . * tanta fuit adami recens conditi stupiditas , ut major in infantos cadere non postit . the tree of knowledge why so called . god , besides the naturall law engraven in adams hea●● , did give a positive law : . that the power which god had over him might be the more eminently held forth . . to try and manifest adams obedience . the proper essentiall end of the positive law was to exercise adams obedience . * altitudinem consilii ejus penetrare non possum , & longè supra vires meas esse confiteor , aug. the positive law did lay an obligation upon adams posterity . adam , by eating the forbidden fruit , became mortall , and in the state of death , not naturall onely , but spirituall and eternall also . adam before his sin was immortall . a thing may be said to be immortall foure wayes . the mortality of the whole man cannot be evinced from this threatning , in the day thou eatest thereof , thou shalt die . image , and likenesse signifie one and the same thing . an image consists in likenesse to another pattern after which it is made . a four-fold image . the image of god in adam consisted in the severall perfections and qualifications in his soul . . in his understanding was exact knowledge of divine and naturall things . . his will was wonderfully good , and furnished with many habits of goodnesse . . in his affections regularity and subjection . . the image of god consisted in a freedome from all misery and danger . . it consisted in that dominion and soveraignty adam had over the creatures . that righteousnesse and holiness fixed in adam was , . originall . . universall . . harmonious . . a perfection due unto him , upon supposition of the end wherunto god made him . righteousness was a perfection sutable and connaturall to adam . adam had power to beleeve , so farre as it did not imply an imperfection in the subject . repentance , as it flowes from a regenerate nature , reductively the image of god. gods image not fully repaired in us in this life . doctr. the covenant with adam before the fall more obscurely laid down , then the covenant off grace after the fall . that god dealt with adam by way of covenant , appeares , . from evil threatned , and good promised . . because his posterity becomes guilty of his sin , and obnoxious to his punishment . a covenant implies gods decree , will , or promise to , & concerning his creatures , whether rationall , or irrationall . god enters into covenant with man by way of condescension , & makes promises unto him to confirme him in his hope and confidence in him . god deales with man by way of covenant , not of power , . to indeare himself unto him . . to incite man to more obedience . . to make this obedience more willing and free . the covenant god made with adam was of works , not of faith . god , entring into covenant with adam , must be looked upon as one already pleased with him , not as a reconciled father through christ . gods covenant did suppose a power and possibility in adam to keep it . . in adam such qualities and actions may be considered , as did flow from him as aliving creature , endued with a rational soul . the principle and habit of righteousnesse was naturall to adam , but help from god to persevere , supernaturall . adam in the state of innocency needed not christ by way of reconciliation , but of conservation in righteousnesse . the obedience of angels may be said to be imperfect negatively , not privatively . christs incarnation cannot be supposed , but upon supposition of adams fall . the tree of life was not a sacrament of christ to adam . the scripture doth not affirme any revelation of a christ unto adam . the state of innocency excelled the state of reparation in rectitude , immortality , and outward felicity . the state of reparation more happy then that of innocency , in respect of the certainty of perseverance in the state of grace . the imputation of christs righteousness doth not inferre , that therefore we are more righteous then adam . what god requireth of us , is not greater then what he demanded of adam in innocency . adams immortality in the state of innocency different from , and short of that which shall be in heaven . . what meant by words . . nothing to be added or taken from them . . god the author of this law. . the manner of delivering it . doctr. the word law is capable of diverse senses and significations . of the division of laws in general , and why the morall so called . the law of moses differs from the law of nature : . in respect of power of binding . . the breach of the law given by moses , is a greater sin then the breach of the law of nature . . the morall law requires justifying faith and repentance , and contains more particulars in it , then the law of nature . the law was given when the israelites were in the wilderness , and not sooner . . because , being come out of aegypt , they were to be restrained of their impiety and idolatry . . because they were now to grow into a common-wealth . the law not only was , but was publikely preached in the church before moses . the ends of the promulgation of the law were ▪ . that the israelites might see what holiness was required of them . . that they might come to kn●w sin , and be humbled . . to shadow out unto them the excellent and holy nature of god. the delivering of this law to the israelites , 〈…〉 at m●●●● unto them . the law of moses is a perfect rule . . the law was given with great majesty , thereby to procure the greater authority to it there is a difference between the morall , iudiciall , and ceremoniall law , notwithstanding they were given at the same time . the morall law more excellent then the iudiciall and ceremoniall in three respects . god humbled the israelites before he gave them his law. god setled his worship before he gave them canaan . preparation required before the hearing of the law. . the people must sanctifie themselves . . they must not touch the mount. . nor come at their wives . . the law was given with great majesty , that so the people might be raised up to reverence the law-giver . . the law was written by god in tables of stone , to denote the dignity and perpetuity of it . what meant by the finger of god. a iob . . the israelites , notwithstanding the delivery of this law , was with power and maiesty , quickly broke . it . . moses his abode in the mount , procured authority both to himself and the law. . moses his breaking of the tables intimates , that justification is not to be had by them . moses his zeal in breaking the tables , vindicated from rashnesse , and sinful perturbation of minde , . gods manifestation of his glory unto moses makes for his honour . . though the writing of the second tables was gods work , yet the forming and polishing them was the work of moses . . the extraordinary glory that was upon moses , argues the administration of the law to be glorious . . the preservation of the law in the ark makes much for the glory of it . seeing god hath put such marks of glory upon the law , let us take heed of disparaging it . the doctrine of the antinomians heterodox , though the law , as given by moses , did not binde christians . the law given by moses doth not bind us in regard of moses . the law given by moses , as written for the church of god , and intended for good to christians in the new testament , is binding . though the people of israel were the present subject to whom the morall law was given , yet the observation thereof was intended for the church of god perpetually . the morall law is binding . . in regard of the matter of it . . in regard of the preceptive authority put upon it . the obligation of the morall law perpetuall , proved by severall arguments argum. . argum. . argum. . argum. . argum. . arguments of the antinomians , whereby they would prove , that the law , as given by moses , does not bind christians , examined & answered , argum. . answ . . answ . . answ . . argum. . answ . though the law given by moses doth not belong to us in all the particulars of the administration of it , yet in the obliging power of it . it does . take heed of rejecting the law , as given by moses . a what is mean by it hath been said by them of old . b vvho meant by those of old those precepts said to be of old , are the law and words moses . christ does only interpret the old , adds no new laws . the pharisees were of opinion , that the law did only reach the outward man , and forbid out ward acts . doctr. no specificall difference of the duties in the old testament , from those of the new , but only graduall in their manifestation . the law did not only command the outward duty , but required the worship of the heart . . the law preferred inward graces before outward duties . all the duties required by the law , were to be done , . in faith. . in love . love to god in as great a measure commanded by the law as by the gospel . in all our addresses to god , it required spirituall motives . it required joy in god above all things else . it required perfection of the subject , object . degrees &c. the law instrumentall to work grace in us , as well as the gospel . it is the duty of ministers to be diligent in preaching and expounding the law. swearing neither absolutely unlawfull , not universally forbidden by our saviour with reasons why . corrupt glosses of the pharisees , touching swaring , reproved . in what sense the words , an eye for an eye , a tooth for a tooth , are to be taken . capitall punishments even death it selfe , may be inflicted upon ofsenders : . because . commanded by god. * grotius . . because it is the magistrates office . . because practis'd under the gospel , upon ananias and sapphira , and so not repugnant to it . object . . sol. object . . sol. object . . sol. warre allowed by christ under the gospel . two causes for which the primitive christians might decline warre all men naturally prone ta revenge injuries . the primitive christians held it unlawfull for a man in his own defence to kill the invader . revenge as strictly forbidden in the old test . as in the new. private revenge unlawfull , and forbidden by our saviour . the preach ing of the law not onely preparatively , but ( being blessed by god ) instrumentally works the conversion of men . the law without christ cannot work to regeneration . the law may be blessed to conversion . yet the matter of it can neither be ground of justification , or consolation to us . the scripture in generall is a medium , working by christ to our conversion . the word read or preached concurres obejctively onely to mans conversion . all the benefits conveyed to the soul by the preaching of the word , are efficiently from gods spirit . the vvord without the spirit , cannot convert us , and why . six arguments to prove the law , and the preaching of it , means of conversion . . . . use . pray for the benefit of the law in our souls . conversion not wrought totally by the word read or preached , but is to be attributed to the covenant of grace in christ . instance ● answer . answer . . gerhard . instance . answ . instance . answ . three errours to be taken heed of in opening gal . . errour . errour . errour . the text opened . the law established three wayes by the gospel . 't is hard to set up christ and grace , and not be thought to destroy the law. the doctrine of christ and grace , doth establish the law. interprtation , dispensation , &c. affections of a law. we may say that the morall law is mitigated , as to our persons , but 't is not abrogated . three parts of the law. the law is abolished as it is a covenant , but not as it is a rule . the law given by moses a covenant of grace . it is an absurd contradiction to say the matter of a law bindeth , but not as a law. the law equally abrogated to beleevers under the old and new testament . antinomian arguments mostly overthrow the use of the law both to beleevers and unbelevers . the law to a beleever is abrogated . . in respect of justification . . in respect of condemnation . . in respect of rigid obedience . . in respect of tefrour and slavish obedience . . in respect of the increase of sin . . in respect of many circumstantials . . yet that it continues to them as a rule , appears , . from the different phrases used concerning the ceremoniall law. . from that holinesse that it requires of the beleever . . in that disobedience is still a sin . . because it differs from other lawes in respect of causes of abrogation . three reasons why the ceremoniall law should be abrogated . places of scripture seeming to hold forth the duration of the moral law for a time only , answered . * minimum maximi , est majus maximo minimi . the apostle argueth against the law , in comparison of christ . the word law taken in a two-fold sense . these phrases of the law , without the law , under the law , and in the law , explained . a two-fold being under the law. the commonly received sense of that phrase , not to be under this law. rejected . beza's inrerpretation of the phrase approv'd . arguments used by moses to perswade obedience to the law. that the law god delivered to israel was a covenant , appears . . in that it ha●h the name of a covenant . in that it hath the reall properties of a covenant . the judgements of the learned different in declaring what covenant is here meant . in what sense it may be a covenant of grace explained . arguments proving the law a covenant of grace . argum. . argum. . argum. . argum. . argum. . argum. . obiections impugning the former arguments answered . the words opened . the papists corruptly glosse upon this text. doctr. the law and the gospel may be compared one with another in a double respect . the different use of the word [ law ] carefully to be observed . what meant by law taken largely and what strictly false differences between the law and the gospel : . of anabaptists , and socinians , affirming , that they under the law in the old testament enioyed only temporall blessings . . of papists . . that christ hath added more perfect laws under the new testament . . that the law and gospel are capable of no oposite consideration . . that the fathers that died under the old testament , went not immedatly to heaven . . of antinomians . that god saw sin in the beleevers of the old testament , not of the new. . that the covenant god made with the iews & this under the gospel are two distinct covenants . . that plenary remission of sins under the gospel , not so under the law , because no sacrifice save for sins of ignorance . confut. . all sacrifices were not only for sins of ignorance . . no legall s●crifice , therefore no remission o● sin , in consequent . . the sin against the holy ghost under the gospel not cleansed by christs bloud . . that under the old covenant , god gave not remission of sins to any , but upon antecedent conditions ; not so under the gospel . that remission of sinnes under the law was successively and imperfect , under the gospel at once and perfect . the difference between the law and the gospel is not essentiall , but accidentall only . heavenly obiects more clearly revealed in the n. testament , then in the old. . it is so for the credenda . . for the speranda . . for the facienda . the measure of grace ordinarily greater in the gospel , then under the law. the iews under the law were in a more servile condition , then christians under the gospel . the continuation of the law was to last , but till the coming of christ . difference between the law strictly taken and the gospel strictly taken . . the law in some measure is known by the light of nature , but the truth of the gospel must be wholly revealed by god. . the law requires perfect righteousness : the gospel brings pardon through christ . . if righteousness were by the law , eternall life were a debt , but the gospel holds it forth as gods meere indulgence . . the law is only for those that have a perfect nature the gospel . for broken-hearted sinners . . the law conditional . the gospel absolute . repentance strictly taken , is distinguished from faith. the law and the gospel are inseperably united in the word and ministery . faith and repentance are wrought both by the law and the gospel . vnbeliefe a sin against the law , as well as the gospel . the gospel taken strictly , comprehends no more then the glad tidings of a saviour . zeal that either wants knowledge , or puffs up , no good zeale . sincerity taken two waies . the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 what it signifieth . the law , as it is considered rigidly , and in the abstract , so christ is not the end thereof , unless it be by accident . as the law is taken largely for the administration of it by moses , so christ was intended directly . christ is the end of intention in the dispensation of the law. cot. . . opened . the ministery of the gospel more excellent then that of the law in three respects . . because it is the ministery of life and righteousness , the law of death and condemnation , . because of its duration , it being to abide alwayes , but the ministery of moses to be abolished . . because the glory that cometh by the gospel is spirituall , that which shone upon moses but materiall . what signified by the shining of moses his face . . christ is the end of perfection to the law. . christ is the end of perfection of the law , in vouchsafing us his spirit , that we may obey it . . christ is the end of perfection of the law , in that his obedience to it is made curs . object . a●sw . the bel●ever is the subject to whom christ is made righteousness . righteousness is the end for which christ is thus the perfection of the law. the beleever hath great cause to bless god , for providing such a righteousness for him . the text opened . what meant by kingdom of heaven . doctr. the doctrines of men may either directly or covertly overthrow the law. covertly , there waies . when they make it not so extensive in its obligation as it is . vvhen they hold principles by necessary consequence inforcing the abrogation of it . . vvhen they press such duties up on men , as will necessitate them to break the commandements of god. the marcionites and manichees , the first oppugners of the law. postions of antinomians . antidotes against antinomian errours . . be afraid of entertaining errours in doctrine , as that which may damn thee . . look upon those places of scripture , where duties are commanded , as well as those where christ and grace are spoken of . . beware of affecting applause among the people . . get to be well grounded in the principles of religion . . be not rash in publishing any new opinion . . antinomianisme overthrows christ and grace . an act for reviving and continuing of several acts of parliament touching the militias of the city of westminster, borough of southwark, and the hamlets of the tower of london england and wales. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing e ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing e estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) an act for reviving and continuing of several acts of parliament touching the militias of the city of westminster, borough of southwark, and the hamlets of the tower of london england and wales. broadside. printed by john field ..., london : . reproduction of original in the british library. eng law -- great britain. london (england) -- history, military. great britain -- militia. a r (wing e ). civilwar no an act for reviving and continuing of several acts of parliament touching the militia's of the city of westminster, borough of southwark, an england and wales a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - paul schaffner sampled and proofread - paul schaffner text and markup reviewed and edited - pfs batch review (qc) and xml conversion seal of the commonwealth an act for reviving and continuing of several acts of parliament touching the militias of the city of westminster , borough of southwark , and the hamlets of the tower of london . be it enacted and declared , and it is enacted and declared by this present parliament , and by the authority thereof , that the persons named in one act , entituled , an act of the commons assembled in parliament for setling the militia of the city of westminster , and liberties thereof ; and in one other act , entituled , an act of the commons assembled in parliament for setling the militia of the borough of southwark , and parishes adjacent , mentioned in the weekly bills of mortality on the south side of the river thames , in the county of surrey , with the names of the persons intrusted therewith ; and in one other act , entituled , an act for setling the militia within the hamlets of the tower of london , or any seven or more of them respectively , be hereby authorized and enabled to do and execute all and every the powers and authorities by the said several and respective acts , or by any other act or ordinance of parliament , given or granted unto the late respective militia's of the parishes and places abovesaid ; which said persons so authorized as abovesaid , are hereby impowered , ordered and directed to do and execute all such further acts and things , as they from time to time shall receive from this present parliament or councel of state . and be it further enacted , that this present act be in force and continue until the first of december in the year of our lord god , one thousand six hundred fifty and one . tuesday the th of august , . ordered by the parliament , that this act be forthwith printed and published . hen : scobell , cleric . parliamenti . london , printed by john field , printer to the parliament of england . . observations on the acts of parliament, made by king james the first, king james the second, king james the third, king james the fourth, king james the fifth, queen mary, king james the sixth, king charles the first, king charles the second wherein . it is observ'd if they be in desuetude, abrogated, limited, or enlarged, . the decisions relating to these acts are mention'd, . some new doubts not yet decided are hinted at, . parallel citations from the civil, canon, feudal and municipal laws, and the laws of other nations are adduc'd for clearing these statutes / by sir george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) observations on the acts of parliament, made by king james the first, king james the second, king james the third, king james the fourth, king james the fifth, queen mary, king james the sixth, king charles the first, king charles the second wherein . it is observ'd if they be in desuetude, abrogated, limited, or enlarged, . the decisions relating to these acts are mention'd, . some new doubts not yet decided are hinted at, . parallel citations from the civil, canon, feudal and municipal laws, and the laws of other nations are adduc'd for clearing these statutes / by sir george mackenzie ... mackenzie, george, sir, - . [ ], , [ ] p. printed by the heir of andrew anderson ..., edinbvrgh : . errata: p. [ ] reproduction of original in the union theological seminary library, new york. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- scotland. law -- great britain. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion observations on the acts of parliament , made by king james the first , king james the second , king james the third , king james the fourth , king james the fifth , queen mary , king james the sixth , king charles the first , king charles the second . wherein . it is observ'd , if they be in desuetude , abrogated , limited , or enlarged . . the decisions relating to these acts are mention'd . . some new doubts not yet decided , are hinted at . . parallel citations from the civil , canon , feudal and municipal laws , and the laws of other nations are adduc'd , for clearing these statutes . by sir george mackenzie of rosebaugh , his maj●sties advocat for scotland . edinbvrgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . to the king . sir , none are so much obliged to laws as monarchs , since by them millions whom corrupt inclination , and mistaken interest tempt to shake their thrones , are yet forced by these to defend them , and find great satisfaction in the reasonableness and gentlen●ss of that kind of force ; by those your majesties predecessors were able to govern us very long , without any other arms : and when successful usurpers got the most victorious armies in europe , these armies were perswaded by law to serve you and ruine them , tho they saw in your service a dissolution of that society for which they had with much courage , but no justice so often exposed their lives : to prevent which for the future , provident law settled on your majesty , suitable revenues to defend your authoritie , and therein shewed that the safety of the king and law were inseparably joyned . it is to our iames's that we owe the great body of our laws , and so there lyes a special obligation upon your majesty to cherish them as their off-spring , to maintain them as your surest and least expensive guards , and to look on them as the only counsellours that can neither be byassed by partiality nor interest . but because your majesty has a special esteem for heroes , and courage ; allow me to represent to you that all those eminent romans , who conquered the world , were raised by pleading , and the command of armies were rewards bestowed by the suffrages of the people on those who pleaded best for them ; nor did cesar ( as their story observes ) take him to the camp , but because he loved rather to be first there , than second to cicero at the bar , where if he had stayed , he had not destroyed his native countrey , which cicero who continued to plead , so wisely preserv'd . that is the most generous heart , which is warmed by reflection , elevated by the hopes of fame , and used to victory ; and no reflections are so strong as those of men always imploy'd in reasoning ; fame has no such trumpet as eloquence ; nor can courage give so many and solide victories as reason does , and such courage does the love of justice inspire in those who adore it , that our profession has had its own martyrs too , who dar'd to die for it , without being diverted by action , from looking fixedly on the terrours of death , or comforted by the hopes of escaping it , as souldiers in battels are . the vertuous papinian is a glorious instance of this , who being chief minister of state to his emperour , after he had illustrated the law by many learned volums before he attained to the age of . choosed rather to die than justifie a barbarous act even in his prince & master ; this only use of our reason we want under your majesties happy reign , you being more unwilling to command what is unjust , than any of your subjects would be to suffer . and it was , sir , the attending your royal brother & you , that hightn'd thus in me an esteem of law , for i could not but admi●● that fixt justice which govern'd so absolutely two glorious and wise monarchs , and made so many thousands happy under them , amongst whom none is more sensible of that general happiness , and of your majesties special favours , than , may it please your maiesty , your maiesties most dutiful , loyal , and obedient subject and servant , george mackenzie . to the reader . my great pleasures are to inform and defend my countrey , the one whereof i do without vanity , and the other without humour , equally desirous to have my designs succeed , and careless how they are censur'd . we have an excellent pattern for a lawyer in the great labeo , tit . de orig. juris . labeo plurimum studiis operam dedit : & totum annum ita diviserat ut romae sex mensibus esset , sex mensibus ●ecederet , & conscribendis libris operam daret . in those observations i have satisfied the ardent desire our parliaments have had to have the laws revised ; & i have sincerely endeavour'd to preserve honest men from falling into snares by their ignorance , and to instruct my y●unger brothers in a science , by which i wish them to rise , for the se●vice of their countrey , and their own advantage ; one of the reasons which mov'd me to undertake this work , was , that even after i was a lawyer , i found that i understood ●ot our statutes , though these be the chief pillars of our law , and i wisht often then such an interpreter , as now i hope this book will be . these who have read my observations upon the act concerning bankrupts , will find that i might have been more voluminous , and seem●d more learn'd ; but my design was to write notes , and not commentaries : and this book , as all others of this kind , should not be judg'd by any one page , but by the whole ; and yet oft times a line which may seem easie now , ha● cost me considerable pains , even after i was kings advocat . the difficult acts or questions , which sometime i omit , shall be largely treated in the papers i shall leave . . it is 〈◊〉 for my 〈…〉 to know , that i 〈…〉 these acts ●y skeens edition , and sometimes by glendocks , an● so that act which for instance is the d in the one , may be the th in the other . . sometimes i refer my reader for the explication of one act , to the observations on another , and yet sometimes possibly it is not treated there , which was occasion'd by my not having all my papers together ; but the reader may look the index of glendocks acts , and he will find the acts omitted treated in one or other of the acts relating to that subject : and thus also that index may serve generally for one to this book also . . i follow sometimes the ordinary opinion , though possibly it is not my own : common opinions being still safe even when they are not well founded . . the errors of the transcriber have occasion'd those here corrected , and it ●ere very fit that the ●uyer would cause correct the book before he read it , for thus by small pains he may prevent considerable mistakes . errata . pagina . linta . for justimans read justinians . pa●● . act . l. . r. . ibid. l. ult . for sunday r. moonday . p. . l. , act . for act ● . par. . . par. . act . p. . act . l. . r. esloinȝie . p. . l. . for reub . r. repub. p. . act . l. . dele ( ●n ) p. . insert betwixt the and acts k. james the d , par. . p. . act . l. . for revetis r. revives . p. . l. . r. one helr . p. . l. . r. person . p. . l. . for ●s r. as . p. . after the end of the act , add k. james the d. par. . p. . act . l. . r. get . p. . l. . r. a d. comprising . ibid. l. . r. th . ibid. l. . r. fi●th . p. . l. . for prejudged r. perjured , ib. l. . r. to more than . p. . l. . r. d session . p. . dele the whole line from ●y &c. p. . l. ● for null r. quarrellable . p. . l. . act . for of r. under . p. . l. . for reparation r. repetition . p. . l. . r. ● . p. . l. . act . r. judges . p. . l. ▪ act . dele ( ) p. . l. . act . ● . probio●atur . p. ● . to notwithstanding , &c. add in the marg●n act . ibid. for . r. . ibid. for . r. . p. . l. . act . r. appoints . p. . l. . act . r. l. . § . ss de legatis . p. . l. ● . act . for confirmations r. in●estments . p. . l. . r. § sed naturalia . p. . l. ● . r. par. . p. . l. . act . r. was first . p. l. . for acts r. and. ibid. l. . r. for one only , was only . p. . l. . act . r. their rights . p. . l. . act . r. is probable . p. . l. . r. quod clericus in patrimonialibus ut laicus tractandus . p. . l. . r. . p. . l. . for erections r. kirk lands . p. . l. ● . r. as . p. . l. . r. hujusmodi . p. . l. . act . r. par. . act . ibid. l. . r. l. . ss . de via pub . p. . l. . act . r. par. . ja. . p. . l. . act . r. volentibus . p. . acts ▪ &c. l. . r. . p. . l. . act . for not in observance , r. not put in practice , p. . l. . act . r. gestabat . ibid : l. . ● . tit . . p. . l. . r. correctoriae . p. . l. . r. this act. ibid : l. . for proport●●n , r. property : p. . l. . dele and for the property that was feued out the time of 〈◊〉 erection . ibid : l. . r. ●nfavourable . p. . l. . act . for beneficed person , r. heretor . p. . act . r : . p. . l. : add after prerogative these words , in matters of trade , and delet all that follows . p. . l. . r. could not sell. p. l. . for first compriser , r. debitor . p. . l. . r. a fir●● compriser . p. . margin , r. act . p. . l. . r. l. . in ●in . p. . l. ●● . dele ( as that . ) p. . l. . dele ( refuse to . ) p. . l. . act . for satisfied , r. ●ufilfied . p. ● . l. , for transact , r. tran●m●● . ibid. l. . r. improving . p. . l. . r. the half of the fines of all who are not heretors . p. . l. p●n . dele ( not . ) ibid. for short , r. foresaid . p. . all from before act . should have been placed before act . observations upon the statutes and acts of k. james i. parliament i. it is observable , that our parliaments , do ordinarily begin with acts in favours of the church , as justi 〈…〉 codex does : and this statute renews the first statute , robert . cap : . our history observes , that this act was made to oblige the clergy to assist the king against duke murdoch ; and this is the first of these acts , upon which the reduction of erections was founded in anno . it being subsumed there , that though by this act , all deeds done to the prejudice of the church , are declared null ; yet these erections were very prejudicial to it , being in effect alienations of church-benefices and lands , in favours of laicks . to make war against the king , is treason ; and even to make war against private persons , is punishable conform to the common law ; that is to say , conform to the civil law : for the civil law is still called the common law in our statutes , which word we have borrowed from the french , who call the civil law ( le droict commun ; ) and by the common law , and our present custom , the raising of men in war-like manner , by mustering them , or forming them in companies , or swearing them to colours , though no design against the king be proved , is treason : for to raise war , is a part of his majesties prerogative ; and whoever makes war , usurps the regal power . the civil law , to which this relates , is , l. . ad l. jul. maj. & l. un . c. vt armorum usus , inscio principe , interdictus sit : nulli pr●rsus , nobis insciis atque inconsultis , quorumlibet armorum movendorum copia tribuatur ; but the justices refused to sustain the raising of fewer than an hundred men , to be treason ; or to sustain , that the raising them till after letters of fire and sword , did infer more than a convocation . earl of seaforth contra assint , feb. . . and invasions made by one subject upon another , with numbers of men without these qualifications , was found only punishable as a convocation by an arbitrary punishment , but i consider more the design than the numbers . rebellion , is properly rising in arms against the common-wealth , openly and notorly . it was called perduellion by the common law : and that is the species of treason , that is here punished by forefaulture of life , lands and goods , vid. r. m. l. . c. . leg . malcol . . c. . quon . attach . c. . these who refuse to assist the king , to punish notor rebels , are by this act punished as favourers of them . notor rebels , are only such as are denounced rebels , or against whom there are commissions of fire and sword granted by the council , or these who have risen in open rebellion , though there be yet no legal diligence against them ; as was decided february . and these who refuse to assist against such , are punishable as favourers of such rebels ; that is to say , as art and part of their crimes ; as is clear by the act par. . jac. . where favourers of rebels , are declared punishable , as art and part ; and consequently , the staying from the kings host , after open proclamation , commanding all heretors to go thereto , is punishable as treason : and it is clear by the journal books , that this crime has been punished by forefaulture , jan. . . and the : of april . likewise , i find andrew naiff in baldordy , pannalled for treasonable abiding from the kings host , at the raid of bigger , . and yet i find , that absents from the host are bail'd , march . . though treason is not of its own nature bailable ; and that these pannals , who are doom'd to have lost their estates and goods , after much debate , are notwithstanding quoad their persons only warded during the kings pleasure : and his majesty , by his gracious letter nov. : allowed such as were absent from the host at bothwel-bridge , to be only fined at most , in two years valued rent . this act was also the foundation of all our old proclamations , whereby all the heretors , betwixt sixty and sixteen , were charged to come to the kings host , when our kings were either engaged against their enemies at home or abroad ; at which occasions , heretors and liferenters , whether men or women , holding immediatly of the king , were cited ; and they cited and brought out their vassals : and therefore it was a good defence that they held not of the king , as is to be seen in the journal books , feb : : . but now the council commands all heretors by proclamation , to go to the host , under the command of such captains as are named in the proclamation . this obligation and statute , is not now taken away by the late act , giving his majesty the militia , as was found by the privy council october : and by the justices in march . so that heretors must attend either , but not both in the same countries : so the last act abrogates not the first , and that being given as a favour , were none , if it took off the first , which is greater , and arises from a feudal obligation , or at least is due to the king as king , and without which the peace of the country could not be maintained : and by the act : sess : : par : : car : : after the militia is granted , the parliament in the same act , makes a further tender of all their lives and fortunes , betwix● sixty and sixteen , when they shall be called for . secundo , it was found that this crime was not punishable now only by the punishment exprest in chap : : stat : alexander : whereby a thane was only punishable in six cows , and a young cow : an ochiern in fifteen ewes , or six shillings : and a labouring man in one cow and one sheep : for that statute is justly abrogated by this act that is posterior ; the remedies in that statute having been probably found ineffectual because of their meanness . this ochiern is by skeen called a freeholder ; but i find by many old evidents , that an ochiern is a chief of the branch of a great family , who has a considerable command ; and it is the corruption of the irish wochteran , which signifies still in the highlands , a master or superior . tertio , it was found , that though such as were above sixty , or below sixteen , were not obliged to go to the host themselves , because of the . stat : k. will : ( and this is sustained feb : : : ) yet their age did not excuse them from sending , which clears , why david lawson was convict for byding from the raid of dumfries , in regent mortons time , though he was alleaged to be past sixty five . quarto , that such burgesses as had lands in the countrey , were obliged to send one for these lands ( though it was alleaged that burgesses did not usually keep horses ) except they had been commanded by the town where they lived , to serve there . quinto , that the captains under whom they were commanded to go to the host , could not warrand them to stay at home ; because this feudal obligation could not be dispensed with by captains , who were only impowered to command : but if they came once out , and were listed ; it was found , that the captains might allow them to return home , upon occasion of sickness , or for other excuses , of which he was a competent judge . sexto , that the king needed not prove that the pannels came not to the host , that being a negative ; but that it was necessary for the pannel to prove that he was at the host. septimo , that the king was not obliged to prove the pannels to be heretors , but that they were obliged to renunce any heretage they had , in favours of the king , if they denied they were heretors ; even as in other cases , the king is not obliged to prove that any were his vassals , but they behoved to disclaim , upon their hazard : and of old , the notoriety of their being heretors , was refer'd to the assize , without any further probation , as june . . and some times to the pannels oath , as in the case of william wallace , july . , octavo , that not only such as were heretors by being actually infeft , were to send to the host , but that appearand heirs , and such as possessed the lands , were to send ; it being unreasonable , that the appearand heir's lying out , and not entering , should prejudge the king more in this case , than it does as to the casuality of escheat , &c. nono , it was found , that such as possess'd by the courtesie of scotland , were obliged to go to the host , by an express decision at this time , though the curiality be but a liferent , and other liferenters were not obliged to go , since heretors in our law are exponed in opposition to liferenters . these words in this act , ( without a reasonable excuse ) seem to insinuate , that not only relevant or legal defences , but even reasonable or equitable defences ought to be received , to defend such as stayed from the kings host : and thus inquests favour such as were known to be of so infirm a constitution , as that they could not without great danger to their life , undergo the fatigue of an army ; though they were not labouring under any present form'd disease , or morbus sonticus : and for the same reason , mean heretors were excused , though of old ; i find that this was found to be no defence , in the case of john ross of drumgranich , july . . but the reason that inclined the judges in this year . not to fine small heretors , was , because the proclamation commanded none to come out , but such as were to come upon horseback ; and so , such only could be fined as could keep horses : and though the decisions at this time , did only oblige such as had l : of valued rent to go ; yet by the act par : : jac : : such as can spend twenty pounds of land-rent yearly , are obliged to keep a horse ; which by the act par : : jac : : is to be computed l : of yearly constant rent . i find by the feudal law , that the vassal qui dominum in bello non adjuvavit , aut periclitantem deseruit , feudum ami●●ebat , rosenthal . conclus : : num : : but yet the words of the text in the feudal law , feudorum lib : : tit : : par : . are only , item qui dominum suum cum quo ad praelium iverit , in acie periclitantem dimiserit , beneficio indignum se judicavit ; and yet even by this text it is implyed , that he is obliged to go , and the expressing of that obligation seems omitted , because it was unnecessar , being implyed in the very nature of the few ▪ cra●g expresses it thus , alia est etiam feudi , si non an●i●tendi , saltem vassalli , ob quasi delictum , puniendi ratio , si dominum , se pro caesaris expeditione instruentem , non suerit comitatus , feudum enim eo casu amittet & dimidium fructuum illius anni , ex feudo domino pendet , non enim hic tantum contra dominum , sed contra imperium & remp : peccatur : so that it seems in his time , the vassal who h●ld of another superior then the king , forfaulted his feu for not going to the host ; but the immediat superior had right to half a years rent ; and the reason of this seems to have been , because , by all our old laws , the vassal was obliged to attend his immediat superior in going to the kings host ; and the proclamation then commanded every man to come with his vassals ; and therefore , as the king had right to the forfaulture , for not attending his host , so the immediat superior had right to this half years duty , for his not attending him ; and sometimes by the journal books it appears , that when vassals were fined , and not forfaulted , the immediat superior craved the half of the fine . the punishment of such as ride with moe than their ordinary houshold , is arbitrary ; and this act must only be interpret against such as ride ordinarly with great trains , and which may look like an unpeaceable design ; nor is any man punished for riding at solemn occasions with his friends and followers ; and i also think , that this act would only extend to such , against whom there lies a presumption , that they gather , or keep men together , upon some sinistrous design , either against the government , or their neighbours ; for if this were allowed , great men might keep troups together ; and for this same reason are convocations discharg'd by other acts ; and betwixt these acts and this , there is this difference , that by these , the convocating for a time irregularly those in whom the convocater pretends no interest , is discharg'd ; but by this act , the conveening men upon pretext of a retinue is discharged ; and though it may seem , that every man may keep as great a retinue as he pleases ; yet quilibet tantum in suo facere pot●st illud quod fieri potest sine aemulatione vicini , but multo majus sine aemulatione re●publicae . though by this law it is only appointed , that there be officers and ministers of the law , made through all the realm indefinitly , without telling by whom they are to be made ; yet by the . act par. . ch. . the power of choosing judges is declar'd to be one of his majesties prerogatives . it is observable from this act , that none can be judges who have not sufficiently of their own , where-through they may be punished , if they transgress , which is very just ; for a judge who decerns unjustly by palpable unjustice litem suam facit ; and therefore it may be well argu'd , that when any who is a judge , or has an heretable office , becomes insolvent , he may be forc'd to find a depute , who is solvent , or else he may be discharged to sit . obs. though it may seem , that if any heretable officer be incapable to exerce ; the king should name deputs jure devoluto ; yet by this act it is ordained , that if the heretable officer be incapable , he shall ordain others , for whom he shall be answerable . the design of this act is to empower the sheriff to arrest oppressors and vagabonds ; by these words to sojourn horse , is meant , to quarter horse , from the french word sejour ; by husbands of the land , is still meant husband-men in our acts of parliament ; by taxing the kings skaith is meant , to cause modifie what is due to the king ; and by assything the king is meant , the causing the malefactors pay what is modified . obs. that the legislative words in our statutes are very various , for in this and many other statutes of this king , the formula is the parliament statutes , and the king forbids , which words shew , that the legislative power is in the king ; for to forbid is the chief and most vigorous part of a statute . in the th act it is said , it is statute , and the king forbids . in the th it is statute by the whole parliament , and the king forbids . in the th it is statute by the whole parliament , and by the king forbidden . in the act par. jac. . it is decreeted by the whole parliament . in the act it is decreeted and statute . in the act par. d. it is ordained by the king and parliament . act . it is ordained and forbidden . act par. . jac. our soveraign lord through the whole ordinance of the parliament statutes . act par : jac : : through the consent of the whole parliament , it is ordain'd . act par : jac : . it is seen speedful . act par : jac : . it is statute and ordain'd , and act and : it is ordain'd . act par : jac : . rex per modum statuti ordinavit . act rex mandavit . in the old statutes of king robert and king alexander &c. it is said , dominus rex vult , or statuit rex , or desinivit rex , or prohibet rex , or decrevit & deliberavit rex , without speaking one word of the parliament or estates . act par : jac : . the king with the consent of the council . act . the king with the consent of the parliament and council . act . the king of deliverance of council . but the formula now is , our soveraign lord with advice and consent ; or , our soveraign lord and estates of parliament ; which last is not so proper , and though in most of the acts of the th parliament k. ja. d , it be said , that it is , statute and ordained by the whole three estates , yet it may be easily seen , that these acts were but in effect overtures propos'd by the three estates , to be ratified in parliament ; and so in effect are conceiv'd rather as overtures than acts : as also , where any thing is to be put in execution by the king , there the act runs in name of the parliament , and not of the king , as in the d act par. jac : . it is said , that the parliament has determined and ordain'd , that our lord the king gar●mend his money ; and in the act par : : jac : . the three estates has concluded , that our soveraign lord ride throw all the realm , &c. there are many wayes whereby the superior may crave production of his vassals evid●nts : for the king sometimes gets an act of parliament ordaining all the vassals of such a countrey to produce their evidents , as . act. parl. ▪ jac. . whereby all the heritors in the highlands are ordain'd to produce their evidents , with certification of losing their rights . the superior may also crave exhibition of these rights ; but the ordina● way is by an impr●bation , wherein certification is granted against the papers that are not produced ; which is deriv'd to us also from the feudalists , who affirm , that vassallus imperari potest sub poena caducitatis , comminatione legali , & certus terminus statui , si ●●tra eum instrumenta non edat . this commination is our certifi●ation , and this terminus , is our term in improbations . rosenthal . cap. . concl . . num . . and . in these actions the king needs produce nothing to prove that he is superior , for the king is presum'd to be general superior , and is infeft jure coronae , in all the lands of scotla●d ; but though other superiors must produce a seasing of the lands , yet they need produce nothing to prove that the d●fender is vassal who is oblidg'd to produce upon his hazard , or else to disclaim ; and yet if the superior , libel only that he is infeft in such an earldom , and that the defenders lands are part and pertinent of the earldom , without producing any thing to instruct that he stands expresly infeft in these lands , as a part of his earldom ; the lords would not put the defender in that case to produce simpliciter , but allowed the same day to the pursuer to prove that they were part and pertinent of the lands wherein the pursuer stands infeft , and to the defender to produce , if that were proved ; for the lords thought it hard , to force heretors to propale and lay open the secrets of their coveyances , where it was not certain , if the pursuer had any interest , albeit it was alleadged , that this would occasion two liti●-contestations in one cause . ( viz. ) one , whither the pursuer had right , and another , whether the defender had sufficient interest to seclude the pursuite ; for the lords thought , that this being an act before answer , did solve this difficulty ; and the ordinar maxime , that the vassal must disclaim upon his hazard , and the argument , that either the pursuer was superior , and would be found to be so , and then there was no wrong done , or else he was not , and in that case the defender was in no danger by disclaiming , were both found only to take place , where the pursuer produc'd a special right to the lands libell'd , but not where he pretended only , that the land possest by the vassal was part and pertinent of his land , which any pursuer might alledge . the third , and old way of forcing the vassal to exhibit his evidents , was by a feudal tryal , per pares curiae , that is to say , before an inquest ; for of old , the king summoned his vassals to appear before an inquest , to bring with them any right they pretended to such or such lands ; and that way is exprest in this act , as well as the other ; and in statut. . rob. . num . . but is now in desuetude , the lords of session being come in place of the inquest . the earl of rothes as donator to the ward of the countess of bu●cleugh , having pursued the tutors for inspection of the charter-chist , that he might know what lands held ward ; the lords ordained one of their own number to take inspection , and to shew to the donator what papers could prove the ward-holding , because it is presumed that all lands hold ward , decem. . . from this , and the subsequent acts : it s observable , that the parliament may , without citing parties , discharge priviledges contained in private mens rights , though they cannot without citation cas●e and annul privat rights . for understanding this act , it is fit to know that the distance betwixt the hecks of cruivs should be . inches wide , which is renew'd by the . act parl. . jac. . and should not be . inches conform to the . act. parl. . jac. . which the lords found july . to be ane error in the printing . they there also found that the mid-stream was in desuetude , notwithstanding that it was reviv'd in all these statutes ; but that the saturndays slop was to be observ'd in all cruivs , which was to continue by pulling up all the hecks to the breadth of an ell in every cruive , from saturnday at six a clock till sunday at sun-rising . though mines of gold and silver , be by this act declar'd to belong to the king , yet by the act. parl. . sess. . car. . they were declared to belong to the heretor , he paying to the king the tenth penny , which was the canon metallious , that was only due out of mines found in private fields , l. . c. de metal . but that act is res●inded in the general act rescissory , and this act is conform to the feudal law , feud . lib. . tit . quae sunt regalia . it has been doubted , whether lead , copper or tin belong to the king , or the heretor ; but the king is in possession of disponing upon these also ; and when he dispones them in a novo damus , even to the heretor , he reserves a tenth part to be payed in to his exchequer : and his majesty has granted general gifts of all copper-mines : and craig tells us , lib. . dieg . . that omnium gentium , omniumque aetatum consensu , ●odin●s omnes auri , argenti , stanni , aris , & similium , in patrimonio principis numerari ; but yet they are not enumerate in the foresaid text of the feudal law , otherwise , than by being comprehended under the word argentaria ; & frequens est in jure , sub majoribus minora comprehendi ; and yet i think , that if his majesty dispon'd land with all the silver-mines , this would not comprehend copper , tin , &c. so that this rule holds not in all cases ; nor doth it hold in any case , where things require special dispositions , as omnia regalia do ; nota , from this act to the . the acts are either in desuetude of no import , or explained in the observations upon other acts. by this act , it is ordain'd , that our coyn be of the weight and fynness of england , which was formerly ordain'd by the ch. . stat. dav. . and though by the . act. parl. . ja. . it is declar'd , that our soveraign lord cause print and conȝie gold , and silver of sick fynness as other countries doe ; yet after king james succeeded to the crown of england , he past a contract betwixt the mints of both nations , wherein they oblige themselves to keep the same standart ; and though the denominations be different now , yet the standart is now the same ; for the english denomination is . vnces , . deniers fine , which is call'd sterling fyne , ours is . deniers and . graine ; and albeit upon a very subtile inquirie , it is alleadg'd that the denominations cannot be adjusted , without some difference , yet it is so small a fraction as is not to be regarded ; and there are four indented pieces , two of gold , and two of silver made of the same fynness , and out of the same essay-pot ▪ two whereof are sent to scotland , the one of which is kept by the thesaurer , and the other in the mint ; and two are retain'd in england , the denominations are printed upon these pieces ; and in the lord hattons case , it was found that this common standart was to be the rule . vid. observation on the . act . parl. ja. . the last act of this first parliament in the black impression , is an inhibition made by king james the first to the bishop of st. andrews , delegated by the pope , to proceed upon the dismembration of a benefice purchased at rome . nota , there are many acts omitted out of skeens impression which were in that impression , because skeen judg'd them temporary , as this act and a taxation impos'd for the kings ransome by this parliament , wherein so much was put not only upon every boll of victual , but upon every beast of cattel . some acts are also to be found in skeen , which are not in that black impression , as the . act. parl. . ja. . ( in the old impression it is act . ) concerning purprision ; as also , some acts which were there only temporary , are made by skeen constant and perpetual laws , as the . act of the . parl. of this king ●uns thus in skeen , it is statute and ordain'd that the breakers of the acts of parliament be punish'd after the form and ordinance thereof ; whereas that act runs thus in the black impression , item , that it be enquired by the kings ministers gif the statutes made in his first parliament be kept , and if they be broken in any of their p●nctilio's , that the breakers of them be punisht after the form and ordinance of the said parliament . the rubricks also of the acts of that black impression differ almost every where , and very much from this impression , which proves that argumentum à rubro ad nigrum , is of no great weight with us , the rubrick being an inscription made by the clerk register , and no part of the act of parliament . king james the first , parl. , in the inscription of this parliament it is said , and of his kinrick the . year , by which word kinrick is meant his reign ; for kinrick in the saxon tongue signifies reign , and sometime kinrick signifies kingdome with us , as in the . act , parl. . ja. . in the inscription of this parliament according to the black impression , it is said , that to the three estates of the realm there gatherit were propon'd sundry articles , to which was answer'd in manner as after-follows , by the inscription of the first parliament , according to that impression it is said , electae fuerunt certae personae ad articulos datos per dominum regem determinandos data caeteris licentia recedendi : by which it appears that the lords of articles being nam'd , the parliament adjourn'd ; and the custome was , that they never mett again till the last day of the parliament , when the resolution of the articles was voted . . the resolution of the articles is said to be per dominum regem , because he is only law-giver , and the parliament only consents . it is said in the inscription of the third parliament , that these articles were put to certain persons chosen by the three estates , which insinuats that the lords of articles were chosen by the three estates , whereas now the way of choosing the articles is prescrib'd by the . act , . parl : sess : : ch : . by this act it is ordain'd , that if any lands or possessions of haly kirk be wrongously annaly'd , they should be restor'd by process of law. for understanding whereof , it is fit to know , that regularly , the lands and goods of the church , are not annaliable ; and church-men are not proprieters of them , but administrators , and li●renters , praecarij possessores , quibus tanquam commendatis , non tanquam proprijs uti debent . salv. lib. . and this is clear by the canon law , canon sine exceptione . . quest. . & can . ult . quest. . and the civil law , l. jubemus , . c. de sacro-sanctis ecclesijs ; but yet there are three cases excepted , in which it is permitted to alienat them exprest in gloss. causae , . quest. . viz. . in causa necessitatis , if the churches debts require the same , as for maintainig its fabrick , or to maintain the christian religion against infidels or hereticks . do . causa pietatis , as to maintain the poor , when starving , or to redeem prisoners from infidels . tio . causa damni vitandi , when the lands are not otherwise improvable ; for which last there is an act in the lateran council under alexander the d. cap. ad aures extr. de reb. eccles ▪ non alienand . by our law , all ecclesiastical persons are discharg'd to lessen the rental of their benefices , by setting feues , tacks , conversion of victual for money , or any other disposition . by the th act. parl. . jac. . bishops are discharg'd to set in tacks their quots and casualities , and though this last act seems unnecessary , because of the former , yet it was made , least it might have been debaitable whether casualities fell under the former prohibition , since tutors may transact for these , as we see in francies montgomeries case , against the earl of liven , where it was found , that tutors , who cannot alienat , may transact for casualities , as to give a liferent to the husband of the heretrix , in place of the courtesie , and though prelats , aswel as barrons , were allowed to feu their ward lands , for the better improvement of them , act. . i. c. . parl. . act. . jac. . parl. . yet these acts are only to be understood of lands to be feu'd out for the equivalent rent , when at first they were barren , but they are no warrand to bishops to tax their wards for a certain dutie , for this is contrarie to the interest of the church , and is so far from being warranted by any law , that there is an express act. ( viz. ) . parl . ja. . allowing them only to few out their ward lands by a temporary statute , to endure for three years allanerly ; which shews that regularly it was not lawful , and this did prejudge the king also , who might have right to the ward , and marriage , sede vacante , from which he would be debarr'd by taxing these casualities : and therefore sharp arch-bishop of st. andrews having taxt the ward-holdings of the lands of blebo , that right was reduced by his successor , . march , though it was alleadg'd , that though church-men cannot alienat teynds , which are the spiritualities of the church , yet they are domini , and not administratores tantum , as to the temporalitie , which was said to be also craigs opinion ; and taxing was a more constant rent to the church , and as a bishop might gift a ward which could not be quarelled by his successors , even for years after his death , or removal , so might he tax . nota , though by the . act , parl. ▪ ja. . the king may resume the annext property unlawfully dispon'd , but any process of law , yet in this act kirk-men are not to resume the lands wrongfully annalȝied by them , otherwayes than by lawful process of law. by this act hospitals founded by the king , are to be visited by the chancellor , but hospitals founded by bishops , or other subjects , are to be visited by the bishop , and ordinary ; which act is renew'd by the . act , parl. . ja. . but by the . act , parl. . jam . all the visiters are to be appointed by the king , and by our present practice . all actions intented for causing patrons , or others , compt for their intromissions with the rents of hospitals , are still intented at the instance of the chancellor . by the canon law , curis hospitalitatis , & hospitalium ad episcopi solicitudinem pertinet , sed ubi non aedificantur hospitalia cum permissione episcopi locus non est sacer , nec est sub episcopi cura . hereticks are by this act to be punished as law of hali● kirk requires , id est , by excommunication , with us they were burnt ; and by act . parl. . jam. . church-men who are hereticks are to be excommunicated , and depos'd , if they revock not their heresie ; the punishment by the common law is burning , and confiscation of moveables , clar. num. . this act was made against the first of our reformers , called then lollards , for the rubrick in the black impression bears of hereticks and lollards . obser. from this act it is observable , that the kirk was judge to heresie , in prima instantia ; and clarus makes the tryal so far ecclesiastick , that the cognition belongs to the church , and the punishment to the secular judge , but with us the justices are judges in prima instantia . it may be alledged from this act , that all transgressions of law are not punishable as contempt of authority , where there is no express sanction in the law , since by this act it is appointed that the breakers of acts of parliament are to be punished after the form and ordinance thereof ; by which words also it seems , that all acts of parliament are with us stricti juris , and not to be extended de casu in casum ; but yet with us laws are extended by parity of reason , and by analogie , as in the case of making men answerable for their wives not going to church , &c. and the meaning of this act is , that judges shall not have liberty , commutare paenam lege definitam expresse , for the best lawyers acknowledge , that though an statute should say , and it is ordained that this statute shall be understood exactly according to the letter , yet it is capable of even an extensive interpretation , if no unjustice follow on that extension , but much more if without this it would be unjust . bald. de stat . num . . voet. de statut sect . . cap. . and a declaratorie interpretation is by all lawyers acknowledg'd to be a literal interpretation , voet. ibid , albeit in general it cannot be deny'd , that these who have power to make statutes , must by a necessarie consequence have power to modifie and qualfie them as they please ; and as they may allow inferiour judges a power to interpret statutes in general , so they may discharge them in a particular statute to use that their power , and in that case an inferiour judge cannot extend or interpret otherways than in the terms foresaid . leagues and bonds are by this act only declared null , but by the act. parl. . jam. . and act . parl. . ch . they are declared punishable as sedition , and were punishable by warding , act . parl. . q. mary . if any carry horses under three years old , to be sold out of the country , they e●cheat them by this act , and by the act parl. . jam. if horse ( without making difference as to their age ) be carry'd beyond sea , the horse and ship and goods of the owner are escheated , and their persons to be punished arbitrarly . it is declared by that act , that there were several acts before discharging the exportation of horses , whereas i see none save this , and therefore these behov'd to have been acts of council , or unprinted acts of parliament , though generally all acts inferring escheat should be printed for certioration . these acts are now in desuetude , carrying horses out of the country being an improvement of rent , though that was then discharg'd upon the account of our wars with england ; but it would appear that the carrying horses out of the kingdom till they be three years old , was not discharg'd upon the account of war , but to the end the horses should be kept till they gave a greater price , and so should bring in more money ; therefore this prohibition it seems should still last . by this act , tallow transported is escheated , and the reason hereof is given by the . act. parl. . ja. . because by the transportation thereof it became very dear at home , and therefore the escheat of the transporters whole moveables is added , but the ill increasing the moveables of the masters , and skippers of such vessels in which it is transported , are declar'd to fall under confiscation , act. . parl. . q. m. and this act extends the former to strangers it is observable , that though this act discharg'd all persons to export , yet all other acts mentions strangers , when it is design'd that the prohibition shall be extended to them , as is also clear by the act. . parl ▪ ja. . and the . act. parl. . ja. d. so that it may be doubted if such penal acts should be extended to strangers where they are not mention'd ▪ and if the words , ( all persons ) are not in our acts to be restricted to natives . though by the civil law the owners be lyable for the skippers fault , in so far as concerns the prejudice done in the ship ; yet it seems hard , that an owners escheat shall fall for the skippers taking in tallow , else rich men would not be owners , and skippers might maliciously ruine their owners , and therefore it seems that by masters here should only be mean'd skippers , and by the civil law , the skipper was call'd magister navis . though this act punishes only stealers , or cutters of green wood in the night time , yet they are punishable for such faults at all times , the punishment is exprest , act. . parl. . ja. . but thereafter cutting of green wood is punisht as thift with death , act. . parl. . ja. . and yet i find none ever punished capitaly for this crime , and the ordinary way of pursuing , is , by process before the sheriffs , or the lords , for pecuniarie mulcts . by the common law no judge can cite a malefactor without his own territorie , and therefore , if a man cut my trees , i could only pursue him within my jurisdiction ratione criminis commissi , if i find him within it ; but yet he●e it is enacted , that if a man steal my wood , the same shall be punished in the court within which t●e lands lye , out of which the wood was stolne , and none other ; but it seems that this being only introduced in favours of the person injur'd , he may renunce it , and pursue before the judge of the jurisdiction , in which the offender dwels , who cannot obtrude this statute . for clearing this act , vid. infra ja . . parl. act . by this act , stalkers of deer are to pay shilling to the king , and their resetters ten pounds ; n●ta , reset in some cases , and in this , is more severly punished than the malefactors . the pain is augmented to a . lib. act. . parl. ja. . and at last shooting them with guns is declared punishable by death , act. . parl . and act. . parl. . q. m. by this act ▪ these who wilfully reset , maintain , or do favours to open and manifest rebells are punishable by forfalture . for understanding whereof , it is fit to know , that there are some manifest rebells de jure , and some de facto . such as are denunced and registrated , are manifest rebells de jure ; for though the leidges know them not , yet they ought to know them , and it would seem that this requires a denunciation within the shire where the resetter lives , act ▪ ● ▪ par● ▪ ▪ ja. ▪ and though that act bear , that the denunciation at the head burgh of the shire be sufficient , yet it seems that the denunciation being only a transient act , is not sufficient to put the leidges in mala fide , except the rebel be registrated as registration of other letters is necessary to put buyers in mala fide : such likewise , as are by positive act of parliament declared to have been forfaulted , ( as these exprest in the act. . pa●l . d. ch. d sess. . are likewise manifest rebels de jure , since all are oblig'd to know what is in acts of parliament ; but it has been doubted , whether the resetting even of these after they have been allow'd for many years , to appear publ●ckly in kirk and mercat , to the knowledge of the kings servants should infer paenam ordinariam ; or whether the said paena ordinaria can be inferr'd , by resetting such as are mention'd in a proclamation . these are manifest rebels de facto , whom the pannel knew to be rebels , or traitors , though they we●e not denunced ; and thus hamilton of munkland was forfaulted for resetting his own man , whom he had seen in the rebellion ; and if a man did see one kill the king , or should assist rebels in armes , before they were defeated , it were ridiculous to alleadge that this were not punishable as reset , because the rebels were not denunced rebels , since they could not be denunced before citation , and the danger in resetting actual open rebels is greater than in resetting poor lurking vagabonds ; but this kind of accession must be inferr'd only from clear qualifications of knowledge , such as these whereupon lawrie of blackwood was forfaulted winter session . in which process it was likewise found , that letters of intercommoning were not necessary to infer nottor rebellion , because denunciations for treason includs intercommoning ex sua natura ; it being hard to leave so dangerous certifications to be arbitrarly inferr'd from conjectures ; and the acts of parliament require very wisely , that the rebellion be wilfull ; these who are here call'd manifest , and open rebels , are by the th act. parl. ja. . call'd not●or rebels , and notorium , by the com●on law , is that which is committed palam & . inspectante populo & non ege● probatione mattheus de prebat . cap. . clar. § fin. quest. . which is to be understood of that which is in se notorium , but there may be notorium respectu noscentis without this , as in munklands case . by the . act. parl. . ja. . such as reset any rebels are punishable by death , and confiscation of moveables ; but it seems strange , that resetting rebels for a civil debt should infer death , or that resetting traitors should infer no more ; and therefore the act. parl. . ja. . is more just , ordaining the resetters of rebels to be punished with the same pain , that the rebels ought to have been punished with ; by this act also , all men are bound to search , take and apprehend them , or to certifie the k●ng and council of their lurking in their bounds , sub paena talionis . by the statut . david d. the resetter is not to be punished till the principal malefactor be convict , but this was repell'd in blackwoods case , because he had reset persons that were de facto , nottor rebels ; and certainly if a man should reset a company of nottor rebels , who could not be convict , because they could not be personally and distinctly known , yet the resetter might be convict . is in des●etude . though this act appoints deacons to be , yet all deacons are discharg'd , act par. jac : . and wardens ●re appointed in their place . act par : : jac : . and thereafter visitors are brought in . act par. q mary , but now deacons are restored to all incorporat trades ; but maltmen are discharged to have deacons by act par● jac : . and yet if a trade be not in possession of a deacon●ie , they cannot begin to choose deacons , without first obtaining liberty from the council for that effect , by petition ; so far still is the pu●lict peace of the nation thought concern'd in all deaconries , and in a process at the instance of the trads-men of brunt-island against their magistrates , concluding that they ought to have deacons , because their charter gave them as great priviledges as edinburgh had . the lords found that this charter gave the trades a liberty to have deacons , but did not oblige them to have them ; and therefore they having liv'd so long without deacons , and the trads men being so few , they were not oblig'd to have deacons . in spain and france , such colledges are discharg'd , vide perez : ad tit . : lib : : num : : habere tamen possunt decanum suum ibid : vide infra act . p : : jac : . is much innovated by the book of rates . is in desuetude . beggars ( or thigsters who are gentle beggars ) should have a token from the sheriff , or magistrates of burghs , else they are to be burnt in the cheek , this act ratifies only the th act par : jac : . and adds to it , that the chamberlain shall inquire in his air concerning this , but all this is regulated by the th act par. d sess : ch. . this act is extended to hearers of such leasing-making , act . par. . jac. . by this act leasing makers lose life and goods , and this act is made to determine the uncertainty of the cap : . stat . rob. . whereby the inventers of rumours betwixt king and people , were put in the kings will. i find an act in england against ●he same crime , vid : : hen : : c●p : : annot . nota , that though the legislative power belongs properly to the king in the parliament , yet the judicative power belongs properly to other courts ; and therefore by this act , private causes are appointed to be discus't before inferiour courts , and the parliament should not be judges in the first instance , but de facto , many privat cases are intended before them . though by this act it be ordained that honest men be appointed to modifie assythments ; yet this modification now belongs to the exchequer , who modifie the assythment , when the signature for the re-in-mission passes in the exchequer . king james the first , parl , . is in desuetude . this act was made to exclude all pretentions of the emperour or pope , and all laws made , or priviledges granted by them , but was not design'd to exclude the civil and canon laws , which by many of our statutes are call'd the common law , and are followed in this kingdom , and to exclude the danish laws in the isles , jac. par. c. . this act against transporting of money , is after many innovations severly renew'd , and the merchants ordained to swear thereupon , allowing only sixty pounds to passengers for their charges , by the act par : . sess : d ch : d. but many think it more reasonable to allow exportation as in holland , since the hindering exportation prejudges much all manner of commerce . the first part of the act discharging officers in the countrey , wherein any man is indyted to be upon his assize , seems to be founded upon the suspition that arises from an interest they may have , in having the pannel convict , since a part of his escheat belongs to them ; and therefore i think this should not be extended to exclude any such officers within the shire , as may expect no share , such as commissars , &c. the second part of the act which discharges those who indyte a man to be upon his assyze , extends also against informers , and these who gave advice for raising the libel ; but from this part of the act it clearly appears , that it is not generally true , that when a penalty is adjected to an act , the deed is not null , though the penalty be due , for it is here forbidden , that any officiar , or other who indyts a man , shall be on his assyze , under the penalty of ten pounds : and yet certainly this act would sett the informer from being on the assyze ; and though to this it may be answered , that this is unlawful by the law of nations , prior to all law , and so this law is only declaratory ; yet that cannot be alleadged as to discharging officers within the shire , to be upon assyzes , it may be also alleadg'd , that this penalty is only irrogated , in case any should pass on such assyzes , without being known to be such . but i do really believe , that we in our parliaments considered not the subtile distinction betwixt acts , which proceed paenam irrogando , and these which proceed actum irritando vide obs : on the the act par : jac : . it may be likewise concluded from this act , that the kings advocat is oblig'd to condescend who is his informer , for else the informer may be upon the pannels assyze ; and yet because that would discourage men from informing , & interest reipublicae ne crimina maneant impunita ; therefore the council has several times found , that the advocat is not oblig'd to condescend upon his informer , further than that , if it be referred to the advocats oath of calumny , that some of the assyzers , or witnesses were his informers , as to which he will be oblig'd to give his oath of calumny . the difference betwixt forethought-fellony and chaudmella , is only observed as to murder , though this act seems to extend it to all transgressions , and even as to murder the murderer is to be imprison'd , whether it be committed upon forethought-fellony , or chaudmella , for chaudmella or homicidium in rixa commissum , is capital by our present law. this act appointing all barons to appear in parliament , may seem abrogated by the act par : jac : . whereby the barons of each shire , are allowed to choose two wise men to re-present them , which is the custom at this day : but it is observable , that though by that act they may for their conveniency , choose two ; yet they are by no expresse law discharg'd to come in greater numbers . nota , it seems by that act , that a prelat or earl may send their procurator to vote for them , if they have themselves a lawful excuse ; but yet de praxi , that is not allow'd ; but this act is more fully explain'd in the observations on the act par : jac : . observe that this act proves the books of regiam majestatem , and quoniam attachiamenta , to be our law , for they are called the books of law. are explain'd in the th act par : jac : . this act appointing all ferriers to have bridges in places where horses are to be ferried , is renewed by the act par : jac : . wherein all passages on each side of the water are ordained to have bridges , whereupon brunt-island and kinghorn rais'd a process against kirkaldy , to have their passage-boats discharg'd , as not being able to have such bridges , and for the good of the kingdom , since if all places were allow'd to have boats , kinghorn and brunt-island ( which in the old evidents is called wester kinghorn ) could not have sufficient boats against storms as now , but this being thought by the council , matter of property was remitted to the session , it being dangerous upon pretext of publict good , to discharge property , for else many innovations might be pretended . before this act the kings council were the supream judges in civil causes ; but by this act some commissioners of parliament are to be chosen by turns , who with the chancellor , are to be the session , and are to be pay'd out of the unlaws ; so that the session was then a committee of parliament , their power is further settled and declared by the acts , , , parl : jam : d. by which it is clear , that they were to sit but fourty days at a time , and that the session was then ambulatory , and their sitting was proclaim'd in each shire where they were to sit , three moneths before ; and they were by that act to bear their own expenses , after which the sessions were by k james par. act . turn'd in a dayly council , which was to be chosen by the king , and was to sit at edinburgh continually , and wherever the king resided , they had the same power that the session had , and their sitting was to be notified to the people by open proclamation at the kings pleasure ; in place of all which , the colledge of justice , and the lords , as they now are , were instituted by king james th parl. th act . nota , there is power granted by this act to determine causes finally , which may import an excluding of appeals , but thereafter appeals are discharged expresly , jac. par. act . the sheriff ; are not now oblig'd to publish the acts of parliament , but they are to be published at the mercat cross of edinburgh only , and bind not the leidges till fourty dayes after publication , k. james par. act . king james the first , parliament . are explained in the th act par : jac : . by this act , wilful fire-raising is treason . . fire-raising by mis-governance is punishable in servants . . reckless fire-raising is punishable , either in the owner , or the mealer , or tennent . by the civil law , incendium casu fortuito is not punishable , but conductor tenetur de levissima culpa & incendium praesumitur culpa inhabitantium factum fuisse si intra domum originem habuerit & ●o casu pater familias tenetur ex facto & delicto familiae sed non tenetur si ortum habuerit incendium extra familiam vide gail . lib : obser : , & . though by this act , the magistrates of towns are to enquire concerning the skaith suffered by fire-raising , so that this seems to be a matter of government , and consequently proper to be try'd also by the privy council ; yet where the case is intricat in point of law , the council uses to remit the same to the session , as in doctor sibbalds case , april . king james the first , parliament . for explication of this act vid : sup : act par : ja : . and act par : ja : . this combination of workmen was also punished by the civil law , and it was found in the case of the lord hattoun , against the deacon of the masons of edinburgh , that a man might choose any stranger mason to build his house , and if any mason within the town give over the work , any other mason within the town might undertake it , notwithstanding of their own private statute . king james the first , parliament . the act here related to , is th act par : : jac : . deacons are discharged by this act , as tending to sedition ; and in place of them , the king did introduce wardens of crafts , who were to supervise the work of the respective trades-men , and were indeed deacons , but were called wardens , quasi guardians , act . par . . jac. . but thereafter , though q : mary of new supprest deacons , and introduced in place of them visiters ; yet thereafter , about the time of the reformation , to strengthen the popish party , and to oblige all trades-men thereto , she restored deacons by a special gift , and a letter to the council of edinburgh , since which time , they remain still legal corporations , and each private trade has their deaconry , confirmed by parliament vid. act par. ja. . this act regulating the expenses of unjust pleas , seems to have been first made in a provincial synod , for it relates to the official , or commissary court , and ends thus , et quod istud statuatur de authoritate concilij provincialis . but i find that in voet. de stat . that general laws are call'd jura provincialia . though all submissions with the decreets following thereupon , be declared null , if the submission be not made to an odd person ; yet this is now in desuetude , vide r. m. l. . c. . num . , , which sayes , that it is ordinary to submit to two , though it be difficult to make them agree ; and therefore the law recommends to them , to submit to an odd man. this act relates only to processes , for by it the causes of all merchants dying abroad , should be decided by their ordinary judges within the kingdom , viz. in the respective commissariots and shires , where they liv'd , if they went not abroad , animo remanendi ; but notwithstanding of this act , the testaments of such as live abroad , though animo remanendi , must be confirm'd in scotland , by the commissars of edinburgh , as communis patria , else no pursuite can be sustained , for their moveables that are in scotland , july . . in the case betwixt duff and bisset . and if it be fore-thought-fellony , he shall die therefore . this may seem to imply , that men die not for murder committed without fore-thought-fellony ; but this holds not in our law , for murder , though committed without fore-thought-fellony , is punishable by death , except it was either casual , or in self-defence , and then it is call'd properly homicide or man-slaughter . it is observable that crimes ought regularly to be punished in the place where they were committed , that where the scandal was given , there the reparation should be made , vide act par : jac : . & act par : jac : . and this same act is renew'd act par : : jac : . the way prescribed by this act , is now obsolet and in desuetude ; but the juster way now used is , that when a man is denunced fugitive for a crime , there are letters of intercommuning got out against him by authority of the council , and these are publish'd at the mercat crosses , where he uses to reside ; and if any within these shires , where these letters were publish'd , do reset or speak with him , they are pursu'd as intercommuners . nota , the resetter of a murderer is punish'd as a murderer , and this by the civil law is clear in resetters , as to all crimes , l. ff : de receptat : l : un : c : de crim : pecul . which is made our law by the act par : jac : . and yet some think , some resetters are only to be punish'd as severely as the principal offenders , who assist in the crime , and then reset , for these contract a double guilt ; but that such as only reset them who are guilty , should be more benignly punish'd , and , this answers , d. l : un . c : de crim : paec : in fine & l : ult § . ult : ff : ab●g . the civil law excuses parents , who reset , and punishes less friends and allies who reset , than others , l : : ff : h : t : and though this act be general , yet it seems that it ought to be restricted by the common law. observe first , that though barons do not use to judge murderers , yet by our old law , such as are infeft with pit and gallows , may punish slaughter , q : attach : c : . and this act allows them , if they be infeft with such freedom . observe secondly , that by this act , judges who are negligent to arrest malefactors , if they escape the being warned in both these cases pays pounds . it is fit for understanding this act , to know that magistrates within burghs , have not power to judge murders , except they be sheriffs within themselves , as edinburgh , pearth , innerness , and some other towns are . a lord of regality and his deputs , have as much power in judging murder as the justices have , though some contravert , whether they can judge murder under trust ▪ because that is treason , and the justices are only judges competent to treason . nota , there is a case exprest in this act , where moe witnesses than two are required to prove a crime ; the word croy here signifies an assy●hment , which the judge should pay to the nearest of kin , if he be negligent in ministring justice against the murderer , but this is in desuetude . the sense of this act is , that if a man has found law-burrows , which was called assurance by our old law , the friends of him who has found the law-burrows , are punishable if they wrong him to whom law-burrows are found . he who assaults with edge and ure , is to be imprison'd , that is to say , with an edg'd-tool , or any thing made of metal ▪ for ure in scots , signifies metal . king iames the first parliament . the banishing such as pay not custom , is in desuetude , and they now lose only their goods so stold , as by the l. . c. de vectigal . all barons might come to parliament before this act , but by this act they are allow'd to choose commissars , who are now call'd commissioners ; and by this act their expences are to be pay'd to them which is now done thus , the clerk register gives them a t●st●ficat declaring , that according to the sederunts of parliament , such commissioners did serve so long ; and by the late act they get letters of horning , for five pounds a-day , vid. supra act par. jac. . nota , that though this act impowers these commissioners to choose one to re-present them as their speaker ; yet there is no such person now chosen , and the chancellor is now constant president of the whole council , by the act . parl. . ch. d. this act ordaining such as interpret the kings laws wrongously , to be punished arbitrarly , stricks only against such as interpret the kings laws so , as to make them a meer cloak for for doing un-justice , but mistakes and probable errors , are not punishable ; nor are the lords punishable for such mistakes , because ipsorum sententiae pro veritate habentur . nota , laws like oaths , are to be taken according to the meaning of the imposer , else they be elusory ; and otherwise , every man would be his own law-giver and judge . the earl of argile was found guilty upon this statute , . for mis-interpreting so the test , by an quality adjected to his swearing of it , that he reserved still a power to himself , to rise in arms when ever he judg'd the same fit . king iames the first , parliament . by this act , all the prelats , lords , and barons are to swear the same alleagance to the queen , that they swore to the king ; and by the . act ja. they promise literas retinentia & fidelitatis to the same queen ; but the queen being a subject , there is no oath now made to her ; and tho by this act none were to be allow'd to enter to their feu till they had given this oath of fidelity to the king and queen ( which was conform to the feudal law ) yet no such oath is required as to either king or queen , before the vassals entry princeps legibus solutus est , augusta autem licet legibus soluta non sit , tamen eadem illi tribuunt privilegia , quae ipsi habent , l . ff . de leg . by this latine act , it is statute , that all such as flee from the king , or his lieutenent , are to be punished as nottor and publict rebels ; which act stricks not only against such as were sworn to colours , for those are punishable only by death according to the military law ; but all such as leave the kings host being obliged to attend ; and though it may be alleaged , that this act is to be extended only against such as flee in to the enemie , for else the punishment of treason were too severe for simple deserters ; and by the common law , there is ground for this distinction ; but by our law there is no ground for this opinion , because the going in to the enemie is per se treason . not. this is to be punished as perduellion and rebellion ; but it is not declar'd perduellion , or rebellion ; and therefore it may be argu'd , that the fisk has not the same priviledges , as to the way of procedore here , that he has in other species of high treason , or perduellion ; such as that the person himself may be pursued and condemn'd in absence upon probation ; and that his heir may be pursued after his death , &c. not. it may be argu'd , that this act should only be extended against such as flee from the armie , when the king , or his lieutenent are there in person in the fields , because then , there is great hazard , but not against such as desert any under officer . king iames the first parliament ▪ the office of maires was to execut summonds , and the kings maires praeco regis assisted in criminal courts , there are yet some maires of fee , or heretable maires in scotland , who have right by their charters to so many pairs of shoes , and so much money , &c. out of every pleugh , which fees are now very much regulated by possession ; by this act , maires of fee are to present persons to the sheriff , to serve under them , and if there be no mair of fee , id est heretable mair in that word or district , the shireff is to present an able person , who shall supplie his place by summonding , and this is the origine of sheriffs in that part to whom all our ordinar summonds are direct , by the chap. stat . david . the serjeand or maire ( for they are the same ) is ordained to give in his execution in writ , or by word , if he cannot writ , but he must prove all by witnesses , and there the sheriff , or mair may make executions or records ; for so executions were call'd of old . that witnesses in executions should dwell in different baronies is in desuetude ; that witnesses should swear that they by-stood , saw , and heard is only required now , in the execution of breives , who must swear the verity of their executions , but the witnesses even in that case , needs not swear that they were witnesses especially required to be witnesses ; which is only required now in seasines which bear , that the witnesses were ad hoc specialiter requisiti , and yet by this act all these qualifications are requir'd in all executions . not. it may be argu'd from this law , that the dates are substantial , not only in breivs , but in all other papers ; likeas the rubrick of this act calls them substantialia ; and therefore , if they be false , the whole writ is false , and it was so found as to executions ; whereupon one creditor is to be preferr'd to another such as are the intimations of assignations , . march , . or the executions of arrestments , for there to allow witnesses to make up the dates , were in effect to allow witnesses to prefer one creditor to another , and to establish considerable sums by witnesses ; but if the date of any other writ , or security be blotted , the owner is allow'd to astruct it by witnesses , . feb. . and though the moneth and day be blank , yet if the year be exprest , a bond , or such like writ is sufficient , being in re antiqua , . january : grant contra grant , but in such cases , the law presums , that the bond was granted the last day of that year , vid. gem : consil. . vid. r. m. l. . . there is no necessity now , that he who propons ane essonȝie , or excuse shall find caution to prove it at the next court , for now ane essonȝie being a dilator of its own nature , must , like all dilators , be instantly proven . not. sicknesse is only allow'd here to be proven by two leil-men , or the parish-priest , or minister deponing upon it ; but with us testificats upon soul and conscience are allow'd in all courts , except the justice court , where ●ssonzie must be proven by witnesses present in court , and to allow testificats is dangerous , because they may be forg'd , yet they were allow'd even in treason , in e. laudons case , : apryl , . but the speciality there was , that the earl was in holland , for it was thought hard to bring phisicians from thence , and yet i think the seal of the town should be brought in that case , vid. stat . will. c. . num . . & quon . attach . c. . the meaning of this act is , when any defender finds caution to answer as law will ( which is called here a borgh upon a weir of law ) he may either answer presently , or may have a day to give in his defences , he finding caution to answer of new ; this is explained , r. m. l. . c. . num . . but now with us there is no dyet allow'd in criminal courts , for the dyets there are peremptor . this falsing of dooms , or appeal was altered , and in place of them are come our suspensions , and reductions of decreets , for the doom is a decreet ; and in these reductions and suspensions it is lawful to insert only one reason at first , and the rest may be now eeked without protesting for a liberty to eeke new reasons , as is required by this act ; and a borgh or caution is yet necessary , in suspensions , as it was in falsing of dooms . by the civil law , appeals were to be interpos'd within ten days after sentence ; but by this act , the appeal was to be us'd immediatly , or at least before the pursuer walkt paces by the act . parl. . ja. . and in place of the words here used , viz. that doom is false stink and and rotten in the self , and thereto a borgh , the party leased was to say , i am gratumly hurt and injured by the said doom , and therefore i appeal ; and this was done , because the words here us'd were rude , and unmanerly . the meaning of this act is , that if the pursuer be forc'd to find caution , to answer as law will , he may force the defender to recounter it ; that is to say , to find caution also ▪ and whosoever is absent , after caution is so found , shall lose the cause , and shall be unlaw'd also , vid. c. . vers . . & . l. . r. m. this act appoints , that the ships which break in this kingdom shall be confiscated amongst us , if the ship belongs to a countrey which uses that law against us . for clearing this , it is fit to know that by the civil law , the goods of ship-wrackt persons fell not to the fisk. l. . c. de naufr : si quando naufragio navis expulsa fuerit ad litius , vel si quando aliquam terram attigerit ad dominos pertineat fiscus meus sese non interponat , quidenim jus habet fiscus in aliena calamitate ut de re tam luctuosa compendium sectetur ; and by the canon law , qui christianos naufragium sacientes damnata cupiditate r●bus suis spoliant excommunicantur , c. . extr. de rapt . but yet france does confiscat ship-wrackt goods , le bris est confisque au segnieur soveraigne . ●odin de 〈◊〉 c. ult . where it is asserted , that this was the law of both eastern and western seas ; which is false , for it is not the custome of holland nor pole , nor denmark , vid. curick ad tit . . jur hans ; with us , if no living creature escape that was in the ship , the goods are wreck , and belong to the admiral , by his gift from the king ; but if any living creature escape , neither ship nor goods are wreck , as was decided where only ane ox escapt , december . and yet by the present custome of the admirality , though no living creature escape , the admiral secures only the goods , and restors them , if the true owner claime them , and prove his propertie within year and day , being repayed of his salvage , for which we have no positive statute ; and it seems we have borrowed this from the statute of hen. . anno . cited by curick tit . . though skeen de verb. sig . verb. wrack cites another statute , viz. anno . ed. . c. . so that though the custome seems unjust , yet this law has seem'd just , because of lex talionis ; and the title , quod quisque juris in alium statuit ut ipse eodem jure utatur ; tit . . lib. . ff . and yet our present custome has justly corrected this law in manner above mentioned . and i likewise believe , that even after the year is elapsed , the true proprietar may recover his goods , if he prove the propertie , and if his goods be extant ; for . that which is mine , cannot be taken from me without my own fact and deed . . there were as good reason for the king to seize upon goods that were robb'd by land , for the proprietar quytes his goods as unwillingly in the one case as in the other , ly . even in goods that are thrown over board for the securitie of the vessel ; the law presums no design in the proprietar to quite them ; as de relicta § fin. inst. de rer . divis ; and therefore much lesse ought this to be sustained in goods forced from the proprietar by a tempest , since there is some consent in the one , but none in the other . to . if any privat man seize on such ship-wrackt goods , his seizing on them would be a crime , l. . & l. ult . de in●end . ruin . l. de submersis c. de naufrag ; and it is strange , that private men should be punished , because they seized on what was anothers , and yet the same calamitie which aggrages the crime in them , should establish a right in the publick ; and it may be well argued , that either the propertie is lost by the ship-wrack , and if so , why has the proprietar action against the seizers ; or if it be not lost , how has the fisk acquyred the propertie , for duo non possunt esse domini ejusdem rei in solidum . o. there is lesse reason for a shorter prescription in such than in any other moveables , for in other goods there may be a presumed design to quite the possession but here there can be none ; for it is palpably to be imputed to force . o. this is destructive to all commerce , and no nation ought to sustain it , because all nations will loss equalie by it . o. the owners may not know where to seek their ship-wrackt goods because lost in very remote countries ; and oftentimes the owners themselves being lost with them , leave none to prosecute their rights ; so that upon the whole matter it seems , that the custome of other nations can no more justifie ours in this , than the eating of our men amongst the cannibals would justifie our eating them ; and it seems rather that letters of mark ought to be granted in such cases , if restitution be refus'd . though this act appoints advocats to give their oath of calumnie only in temporal courts , yet this holds also in the commissar court , which is a spiritual court , and curia christianitatis . obs. . it seems that oaths of calumnie can only be craved in initio litis , in the beginning of the pley or cause , but yet now an oath of calumnie may be asked at any time . obs. . that though this act appoints advocats to give their oaths of calumnie , if their client be absent , yet that only holds in matters of fact , as to which the advocat is not obliged to swear , if his client be present , but as to alleageances in point of law , the advocat is obliged to swear though his client be present . thir verses are taken out of hostiensis tit . de jur . calum . & gloss. in § . just . de paen : tem . litigant ; which shews amongst other arguments , that the acts of parliaments , as we have them now printed , are not the same as they past in parliament . i have heard it debated in the process , keith contra purves , march . that an adocat was not obliged to give his oath of calumnie , whether he thought the right upon which he debated was really to the behoove of the earl of marshal , but only in general , that the advocats had good reason to debate it was not to his behoove , because their client said so to them ; but if this be allow'd , an oath of calumnie will signifie nothing , for advocats may alwayes find subterfuges to depone , that they have good reason to urge such a thing , for they may think their clients information sufficient warrand for them , though they are convinced the same is palpably false ; whereas the true design of the act of parliament was to debar advocats from proponing defences , and insisting in pleas which they thought unjust and calumnious . are in desuetude . but i am of opinion , that brieves with us have not their origine from the civil law , as skeen thinks , because sententia erat de brevi recitanda , or from the breve testatum of the feudal law , for these are very different from our brieves ; but from the court of rome , for their brieves are exactly the same . with ours , as breve de capienda possessione breve contra intrusum vide amydenium de stilo datariae , cap. . lib. . rebuff : praex : reg : . this act is abrogated by the union of both kingdoms , but from it may be observed , that to go and live in a countrey , that is in war with the king , is treason , since the enemy becomes thereby stronger and richer , and the kingdom weaker and poorer . upon this act is founded the stile of law-burrows , which bears , that the raiser dreads bodily harm of him against whom he seeks law-burrows , and that he has given his oath to that effect : this is like that oath of calumny , quod tenetur ille prestare qui novum opus nunciat , l. . § . . ff . de novo oper : nunciat : but it is the same exactly with the cautio de non offendendo , us'd both in france and flanders , in which the oath of the party is sufficient , ubi expectatio mali juramento ejus qui securitatem petit confirmari sufficiet christien : ad leg : mechlin : art : . tit : . num : . and with us , such as break law-burrows , are pursu'd by an action of contravention ; which term is likewise us'd among them in the same sense , art : . num : . ibid. observe , that though the letters of law-burrows contain no such warrand in the body of them , for taking the chargers oath , that he dreads bodily harm ; and though the messenger who executes the saids letters , does not exact the said oath from him , at whose instance the letters are to be execute ; yet that neither annuls the letters , nor the act of caution , though it would seem that caution is only to be found , because that oath is given ; but yet the party might have suspended upon that ground , and would not have been oblig'd to have found caution , till the charger had given his oath , conform to this act. free-holders or their acturneys , should compear at head-courts ; but though this act sayes , that if they be absent upon a necessary cause , they may send their acturney ; yet de praxi , though they can prove no reasonable cause , they cannot be unlaw'd , if they send any person with a letter of acturney , which is rais'd out of the chancellary , and the sending of seals is now in desuetude , for services and verdicts in criminal causes , which are the only papers that need now to be seal'd , may be sealed with any borrowed seal . obs. primo , several regalities in scotland , have chappel and chancery of their own , and grants acturneys themselves . obs. secundo , regalities are still a part of the shire ; and therefore the sheriff may cite the vassals of the regality , but the lord of regality cannot cite these who live within the shire , without letters of supplement , obtain'd by deliverance of the lords for that effect , vide act par ja. . obs. tertio , that the unlaw warranted by this act to be impos'd by sheriffs , for absence from head-courts , cannot exceed pounds , february . . december . . and the same unlaw of pounds is allow'd for absence from baron coutrs , march . . it has been likewise found , that though a vassal having been in use to have his servant received as his acturney at those courts , without a formal letter of acturney out of chancellary , cannot be fined quoad by gains , because of the preceeding custom ; yet for the future , they will be oblig'd to send formal letters of acturney , or else they will be fineable , intimation being made to them , that the former custom will be no more allow'd , july . . the bailie of the regality of paisley against the laird of duntreath . the taking of salmond at all times is allow'd on the waters of saloway and tweed , as long as berwick and roxburgh are in the english mens hands , but it is rescinded upon our kings succeeding to the crown of england , by the act par. ja. . king james the first , parl. . this act discharging the selling salmond abroad , except the one half of the price be pai'd in money , is in desuetude . this act is declaratory of the former law , else it could not have been drawn back to the prejudice of the private right here mentioned , and this was suitable to the common law ; for the governour of the kingdom is but a tutor , and a tutor cannot alienat lands belonging to the crown . king iames the first , parliament . these who break the kings protections are ordained to be p●nish'd , and the protections here mention'd , are these letters which our kings of old granted to monastries , burghs , &c. taking them into his special protection , and discharging all his subjects to injure them , under pain of his highest displeasure ; and it is observeable , that assizes were to sit upon these , whether the party accus'd was present , or absent . those protections are now in desuetude , nor can any pannel be proceeded against now in his absence , except in the case of perduellion allanerly . what we now call protections , were called there supercederes , but not protections . by the civil law , publica tutelae assertio principis solius eratl , capital : § . ad statuas . ff . de pan nunc salvagardiae dicuntur , vid. argentrate pag : . king iames the first , parliament . it was lately doubted , whether theft-boot , which is the transacting with thieves , by a judge , for freeing them from punishment , be in desuetude ; and it was found a crime yet punishable . there are two kinds of theft-boot declared by this act , to be punishable , the one is to sell a thief , which is to take a ransom for liberating him , 〈◊〉 other to fine with a thief , that is to take a share of what he has stoln , and so dismiss him , both which are exprest , act par. ja. . by concording with the thief , and putting him from the law. the punishment by this act seems to be the loss of the right of rega●●●y , as to lords of regali●y , but to be death in sheriffs , justices , &c. and if so , it seems strange that the lords of regality shall be 〈◊〉 punished than others . but i think the punishment as to both , 〈◊〉 of life and office , and the words of the act are only ill plac'd . and by the civil law , whoever commits either of these , are punish'd as the thief himself , l. . ff . de receptator , where the two species of theft boot exprest 〈◊〉 in this act , are also there exprest , quia cum apprehendere latrones possint pecunia accepta vel subreptorum parte demiserunt ; and this act punishes only theft-boot in judges : but yet if a private person take a part of the stoln goods , he may be punished as a resetter , albeit the meer letting of a thief go is not a crime in him , since he is not oblig'd to take him . this act was necessary , because formerly , transacting with thieves was discharg'd , but no punishment exprest , quon . attach . c. . & . & stat . rob. . c. & stat . will. c. by which last , who redeems a thief est legem aquae subiturus , which is now in desuetude . this oath is not now put to assizers , except the party require that they be purg'd of partiality ; for the ordinary oath now us'd is , that they shall truth say , and no truth conceal , in so far as they are to pass upon this assize . crowners do not now arrest male-factors , for all arrestments are by messengers , or the macers of the criminal court ; but yet some heretable crowners do assist at justice-airs to this day , and keep the bar , and secure malefactors as they go , and come from , and to it . there is a double interest in all crimes , the fisk or king has an interest , because his peace and laws are broke , and his subjects wrong'd , and this is call'd by the civil law , vindicta publica . the person wrong'd has another interest , which is call'd vindicta privata . that the king may pursue without the concourse of the person injur'd , is clear by this act , but because this act allow'd only sheriffs to pursue without consent of the party ; therefore this is extended to all cases , in ●●vours of the king , act . par. . ja. . this act is abrogated by the union of both nations , but argumento hujus legis , the taking protections from , or assurance with any enemie of the state is treason , and it may be alleadg'd that assuring merchant goods , or ships by hollanders when we had war with them ▪ vvas treason by this act , and by the common law ; for this is a corresponding vvith enemies . a thief novv by the regulations must be pursu'd upon . days only , as all malefactors . vide act . parl. . ja. . & act . parl. . ja. . and such as failȝie to bring in bullion are punished , act . parl. . ja. . & act . parl. . and all is novv innovated by the act . parl. . ch. d. the bell rung in edinbrugh , at . at night , conform to this act , till it was ordain'd to ring at . ( as it does ) which being altered at the desire of the earl of arrans lady when he was chancellour , it is therefore call'd the lady's bell. from her also the steps leading to st. giles church are call'd the ladies steps . by this act , the law is to be holden where the trespass is done , which is most just ; because , by punishing crymes upon the place , the scandal there given is taken off by a proportional terror . . the friends of the party injur'd , are thereby better repa●ed . . probation is more easy got , and assysers upon the place are readier to do justice , as knowing better the matter of fact. vid. stat will. reg. c. . and is conform to the civil law , l. . ff . in prin . de re milit : & tot : tit . c. ubi de crimine agi oportet ; and that this was the old law of nations , is clear by quint. c●rt . the carriers of gold and silver , ( except in so far as is necessary for spending ) infers also the escheat of the carriers other moveables , act . parl. . q. m. but the falling of their escheat was but . lib. after that act , and is now in desuetude , so that the words under the pain of escheat is to be interpreted of escheating the money so carry'd allanerly . k. james ii. parliament i. this is not an act , but a declaration concerning the fidelity sworn by the parliament , to their young king ; and i find no such declraation , or acknowledgement in an other parliament of any other king : so this is rather set down as a narration , than as an act of parliament ; for it mentions not bishops , and it expresses the consent of al● the free-holders . this is the first revocation that i find made by any of our kings , and here dispositions made by the king of moveables , is revocked , and though no mention be made of moveables , in latter revocations ; since a king who is minor , disponing moveables without an onerous cause , may revock them . ly , it is observable that the king is ( as his subjects ) minor till years compleat , and that the parliament is in place of tutors to him. ly , this inventar is conform to the civil law , whereby the tutor was oblig'd to make an inventar of his minors estate , and which is made our law , by the act . sess. . parl. . ch. . and to make an inventar unto dupois , is to make it according to weight ; dupois being a french word , signifying weight . ly , that in this act , rather the parliament than the king revocks , for the king was then minor ; but regularly the king's revocation passes under his privy seal first , and then is confirmed , and past by an act of parliament , vid. act th . parl. , ch. . but sometimes it passes first by proclamation , and then by act of parliament , act par. th ja. th . and sometimes by way of instrument , act . par. th ja. th . king james the second , parl. . the only act in this parliament warrands the kings lieutenent to force such as ly under violent presumptions of spilling and troubling the countrey , to find caution , that the countrey and the kings subjects shall be unharm'd , which shews clearly , that the king may upon presumptions ( of which he is sole judge ) oblige any of his subjects to give bond to live peaceably , without which , the government could not subsist . this act was occasion'd by the great outrages , committed by archibald earl of dowglas , in the south , during the kings minority . king iames the second , parliament . vid . stat. dav. d cap. . concerning the liberties of the haly-kirk . two justice courts were to be held yearly by the justices , at edinburgh and peebles , c. . quon . attach . and two justice-airs are to be held yearly , the one upon the north-side of forth , and the other upon the south-side of forth , c. . stat. rob. d. and by the scottis sea , is mean'd here , the water of forth . secundo , that part of this act , which appoints lords of regality to hold justice courts twice a year , is now in desuetude . by this act , after word is sent to the council , that there is any rebellion , burning , &c. the king is to call the sheriff , and see it re-drest , and all the barons oblige them to assist the king with their persons and goods , as oft as it shall be seen needful , by advice of his council : from which , it is observable , that the king needs not call a parliament , to assist him in a war ; but that the king and his council , may call for men and maintainance , in case of war , and this was very reasonable , for rebellion may be invincible , before a parliament be assembled , and parliaments do often give little help , in case of combination , if the occasions of it be popular , as was too clearly discover'd in our late rebellion . the reason why in the former act and this , the advice of the king's council is still exprest as necessary , was , because the king was then minor , and his person had been several times surpriz'd . in all this parliament , there is no mention made of the authority of the regent , as uses to be when the king is minor , but only the hail three estates have ordain'd , which i think proceeded from the hatred , the nobility had at that time to alexander livingstoun , who was then regent . i find , that in the ratification of the acts of parliament , called the black acts , folio . the duke of chattelrault then governour , is plac'd before the queen-mother , then regent . king iames the second , parliament . observe that excommunication takes away personam standi in judicio , so that excommunicate persons cannot pursue nor defend ; for the act sayes , that they shall not be heared nor answered in the law of judgement ; and though the word ( answered , ) would import only , that they cannot pursue ; yet the word , ( heared , ) imports both pursuing and defending ; and the words , heared , nor , answered , had been superfluous , if they had been to express only the pursuing . this act and the th act d par. ja. d. were made upon the earl of crawfords cruelty to kennedy , bishop of aberdene . king iames the second , parliament . this is the first time i find art and part mentioned in our law. nota : the time forbidden by law for killing of salmond is , from the feast of the assumption , viz. the of august to st. andrews , which is the of nov. act par. ▪ ja. . and though the third fault was death by the act par. ja. . yet by this act , the third fault is only punishable by loss of office. vid. act par. ja. . the form of causing restore goods spuilȝied now is , that the sheriff , or any judge discern , and upon this decreet letters of horning are rais'd , and the defenders denunced ; we find by this act , that old rule of the canon law , spoliatus ante omnia restituendus , here confirm'd , and the meaning of it is , that though the spuilzier have a sufficient and valid right to what he has spuilȝied , yet being pursu'd , his right will not defend him ; but he must first restore the person spuilȝied to his possession , for the law will not allow any man to be his own judge , and to intromet at his own hand . obs. secundo , that of old , all decreets were under the kings wax , that is to say , his seal ; and till of late , and the last institution of the session , all decreets , even of the session , were under the quarter-seal . observe , that all scotland is divided in royalty and regality . the royalty is that which was judged by the kings immediat judges , as sheriffs , and they are here and else-where , call'd the lords of the royal. these who were excommunicated , were denunced rebels , and letters of caption raised against them ; and this act , as to this point , is founded upon cap. th . stat. rob. d. and is morefully explained , act . parl. . ja. . where these letters are appointed to be raised by the authority of the council , after . days are expired from the date of the excommunication . nota. this is the first act that speaks of appryzing of lands , and it was done then at the mercat cross , in the same way that moveables were then , and are yet poyndable . nota. the punishment of such as break the peace , is left arbitrary by this act , and by this act , justices of the peace are ordained ( irenarchae by the civil law , ) of which there are whole titles in that law. vid. sup. act d. parl. . ja. . as also by this act , it is clear , that forfaultors for rebellion were only to be led before the parliament , for it is here said , that they shall be punished by the advice of the three estates ; but now open rebels , rysing in armes , may be tryed and forfaulted by the justices , by the act. th . parl. d. ch. d. this was statuted before , as to murder , c. . l. d. r. m. by a trespassour justified in this act , is mean't a person condemned by law or justice , and it is oft so mean't in all old laws . there are now no wardens in the borders , but these affaires are manadged by commissions from the king , cal'd commissioners for the borders . all officers offending wilfully , are to lose their offices for a year , by this act , but this act is not the only punishment , for if a judge execut a man wilfully , he will die for it ; and a judge being partial , or refusing to do justice , is to be punished rigorously , ja. . parl. d. act . and if he be faulty , or negligent , he loses his office ; if it be temporal for a year ; or is to be suspended from it , if it be heretable ; ja. d. parl. . act. . vid. ja. d. par. . act . & ja. d. parl. . act. . and the punishment of judges offending in their offices , is now arbitrary , suitable to the nature of the offence . tacks , which before this act were only personal rights , and were only valid against the granter ; are by this act ( for encouraging tennents to improve their rooms by tacks , and for the security of poor labourers ) made reall rights , and defend against all singular successors , that is to say , the buyer , or the superior of lyfrent escheats , or compryzers , or donators to bastardies , or ultimus haeres ; but if the land fall in the superiors hands , through ward , the tack sleeps , and reverts again at the expiration of the ward . vid. obs. on act . parl. d. ja. th . and they will defend against donators to forfaultors , though the tack be not confirmed , if it be set for an ordinary dutie , and without design to prejudge the fisk , as was found in the case of general dalȝiel contra the tennents of caldwall , . january , . for though the rubrick sayes , that the buyer shall keep the tacks , yet the act bears , in whose hands soever they come ; and as no tacks-men craved ever a confirmation to defend against forfaulting ; so it would shake louse all poor labourers securities , if they were not secure against such delinquences ; and might probably prejudge much the kings interest , by tempting them to follow their master , if they knew that they behoved to be forfaulted by his crime . this decision agrees with craig , pag. . and a decision . hume of manderstoun ; but the council did justly think , that this decision could not defend the tacks-man of a castle from giving it up to the king , since fortalices are not made for labouring the ground , and therefore also summar warnings are allowed from them on six days . though this act be only conceived in favours of labourers of the ground , yet it is extended so , as to defend all tacks-men , whether of tenements within town , ( though the act seems only to be made in favours of poor labourers of the ground ) , or of casualities ; such as salmond-fishing , coal-heughs , coal-work ; &c. and generally it extends to all tacks , but not to rentals , for these are tacks for grassumes and entries , and so for small duties ; provyding alwayes these tacks be cled with possession , for possession is the same thing to tacks , that seasines are to alienations , and of old some tacks had seasines , or instruments of possession , but neither was necessary , nor is now usual , but possession is so far necessary , that the last tack , with the first possession is preferred ; and the reason why they used seasins then , being to make the tack reall , and to defend against singular successors ; this was no more used after this act of parliament , by which possession makes a tack a reall-right , but a tack is preferred to an appryzing , though the appryzing was led before the tack was cloathed with possession , since the lands were denunced after the date of the tack , march , . since tacks are only declared valid against singular successors , by this act ; therefore obligations not to remove a tennent , will not be sustained against a singular successor , albeit it be exprest in the tack , though that as a personal obligment be valid against the setter , and his heirs ; for if this were sustained , the buyer would be thereby debarred from using and improving his propertie , as he thought fit , contra naturam dominij : and that it is not of the nature of a tack , is clear from this , because tacks must have a certain ish , which this has not , though the obligation should bear not to remove till money lent at the setting of the tack were payed , . june . thomson contra reid , and for the same reason , a tack set to one during his lifetime , with express provision to receive the tacks-mans heirs as kindly tennents , for payment of the accustomed tack-dutie , will not be valid against a singular successor , as wanting a certain ish ; albeit the tacks-men offer to restrict the tack to the life of an heir allenarly , . march , . and a tack set from . years to : years . upon payment of the old dutie , was not sustained against a singular successor , . july , . but tacks are valid , though they bear no special time of entrie , since the present time is in the construction of law presumed to be the time of entrie in that case , . december , . as also since a tack must have a certain tack-dutie , as well as a certain ish ; therefore , where the tack contains not a certain tack-dutie it is not valid against a singular successor , and thus a tack bearing , that a tacks-man should retain the annualrent of . merks , for the tack-dutie would not have been valid against a singular successor , because , in that case , there would nothing have been payable to the singular successor , yet if the least superplus had remained over the payment of the annualrent , though it had not exceeded one pennie , the tack would have been valid , because there would have been in that case a tack-dutie , th june , . thomson contra reid ; and for the same reason , a discharge of the tack-dutie before hand , though for an onerous cause ; and though the discharge was in the bodie of the tack , will not defend against a singular successor ; and this very statute bears , that these tacks shall be valid to the tennent for sicklike maill as they took them , for . january , . ross contra blair ; and therefore it being controverted whether a tack set to a creditor wherein he was to have retention of the tack-dutie , aye and till he were payed , and relieved of the sums due to him , should be sustained against a singular successor , it was found , th . december , . currie contra oliphant , that the tack was to be sustained , because the retention was to be allowed , by an expresse clause in the bodie of the tack it self , and not by a paper a part , and because the tacks-man was to pay a dozon of hens , and another of capons by and attour the sums that he was to retain , and was to relieve the setter of the publick burdens , which was to be in place of a tack-dutie ; but though this may hold where the tack bears the sums expresly , whereof the tacks-man is to have retention ; yet it were very dangerous to allow tacks bearing only in general ; that the tacks-man should retain his tack-dutie till he were payed , and relieved of what sums were due to him , and for which he stood engaged ; and if this were allowed , no singular successor could know even by production of the tack whether there were any superplus due , which might be in place of a tack-dutie , and it cannot be denyed , but that the first design of this statute , was to continue tacks , the tacks-man paying the true dutie , and therefore this act sayes ; they shall be valid for sicklike mail as they took them for , and craig pag. . sayes , si assedatio facta fuerit , nec certam contineat mercedem , non valet ex jure & si eadem merces assignata sit calono , assedatio non valet ; and therefore a tack for . lib. of dutie , bearing , that the tacks-man should retaine the tack-dutie for reparations , was not sustained , in so far as concerned the reparations , though the reparations were necessary , nor is there any tacite hypothetick in our law for reparations , as in the civil law ; but if the singular successor had known of such a clause , in the tack , the lords inclined to think that the same had been obligator against him ; and yet a singular successor is not obliged to consider a prior seasine , except it be registrated , or a prior disposition , nor any assigney a prior assignation . february . rae contra finlason . by the civil law , tacks were not valid against singular successors , l. . c. de locato , but the law of holland agrees with this statute , neolstad : decis : . this act was thought to have been in desuetude , till it revived by a decision , feb. . lord lee contra mark porthouse , but it is yet so to be understood , as that the land set in tack , must be valued according to what it was worth when the land was wodset ; for if the land be improved by the wodsetter , it were unjust , that the wodsetter should lose thereby , and therefore a wodsetter improving land , will not lose his tack , though the land become worth more than twice the tack-dutie , and though it would seem , that there is a contradiction in this act because it sayes in the first part , that if any man has wodset lands , and syne takes them for long time after the land be quit out , for half mail , or near thereby , that these tacks shall not be keeped , but if they beset for the very mail , or near thereby ; yet the answer is , that this law was so worded , to show that the parliament designed , that tacks after wodset should not be keeped after wodsets are redeemed , except they be set for a tack-dutie , somewhat proportionable to the worth of land ; and because this could not precisely be determined , therefore by comparing these two expressions ; it is clear , that such tacks after wodsets are to be sustained if they be set for more than the half of the real-dutie , though they be not for the full dutie . this act is in effect , but an exception from the former act , which having appointed all tacks to be valid against singular successors . this act begins , but if lands be wodset , and the here●or granter of the wodset be obliged to grant long tacks for an unconsiderable duty , after the lands are redeemed , these tacks shall not be kept . and therefore it may be argued , that this act should only defend against the setter , but not against singular successors , because the preceeding act , from which it is an exception , was only conceiv'd to secure against singular successors . but to this it is answer'd , that the former act needed not secure against the granters , for they were ever , and still are sufficient against them ; and this act runs not against singular successors , but in general , declares such tacks null , as exorbitant and usurary , and so should be null against all ; but if there be a valuable consideration to clear , that they are not forc'd and exorbitant , they will be sustain'd , as in the case , polwart contra hume , january . . where it was found , that a tack for a dewty , far within the worth , to be granted after redemption , was valid , because it was by one brother to another , who might have given it for a patrimony , and the brother who got the wodset , was excluded by a liferenter thirty six years . thir tacks who are to begin after the redemption of lands wodset , are valid against singular successors , though they be not cloathed with possession , prior to the singular successors right , because they are a part of the reversion , and not because they could not begin till the lands were redeem'd ; for if that were a good reason , then a tack whereof , the entry is deferr'd , for several years , should be valid against the singular successor , who had got a disposition of the lands , long after the setting of the tack , though before the tack was cloathed with possession , which is not true ; and if it were true , since tacks are not to be registrated , no man should know with what tacks lands are burdened , for this can be known no otherwise but by possession . these tacks which are to follow redemption , are valid , though they be not contained in the wodset , if they be of the same date with the wodset and reversion , as hadingtoun observes ; but in this case it may be doubted , whether these tacks ought not to be registrated , since all eeks to reversion are to be registrated , or else how can a singular successor know them ; and yet it is otherwise in tacks , which are to follow redemption of annualrents , for as an annualrent is different from the land , it being but a servitude upon the land , so the possession of the one cannot in law be constructed to be the possession of the other . vid. stat. d rob. . c. . but now spuilȝies are pursu'd before the lords or sheriffs , as other civil actions . there are many severe acts in this kings parliaments against spuilȝies , because there were many then committed by the douglasses and others . feinȝied fools , and bards , and sornars , and such like runners , are by this act to be imprison'd , and have their ears nailed to the trone for the first fault , and to be hang'd for the next ; and such as feinȝie themselves to be dumb , are punishable by the general words of this act , or others such like runners . but it may be doubted , if such punishments infer'd argumento legis , can be extended beyond an arbitrary punishment ; and yet the feinzing ones self dumb , thereby to draw money from the people , is species falsi . the buying and keeping of victual to a dearth , is a crime in all nations , and is punish'd with us , as regrating ; by this act it is punish'd as usury , and by escheating the victual : and yet this punishment has never been practis'd , but the ordinary course to prevent this crime is , that either the secret council sets prices , in cases of foreseen dearth , or else the magistrates use in their respective towns , to cause break open the doors where such victual is kept , and sell it at convenient prices , which is warranted by the act parl. ja. . vid. crim . pract . tit . forestallers . the escheating of old corn-stacks , that are kept longer than Ȝuil , was found to be in desuetude , at the justice-air in jedburgh , . and the first part of the act , ordaining all victual bought by private persons , more than will entertain their families for that cropt , to be therefore escheat , is also in desuetude , this was punish'd in the civil law , per. l. jul. de annonâ , and is punish'd tanquam crimen extraordinarium , l. . ff . de extraor : crim : and such as are guilty of it , were called dardanarij , or revenditores , tholos : cap : . num . . not only such as keep out their houses upon publick accounts are punishable as traitors , but even these who keep out their houses for private quarrels , if they be charged by letters from the council , to render them as use is by heraulds , they are also punishable as traitors , in case of contempt ; but if these who keep out their houses upon private feids , do thereafter yield them , the keeping them out is only punishable arbitrarly , and not as treason ; not only are such as keep out their houses immediatly against the king , executed as traitors , as we see in robert steuart's case , who was executed january . . but such as hound them out to keep their houses , are executed as traitors ; and thus the earl of orknay was executed , for hounding out his son , february . . though hounding out be not exprest in this act , for hounding out is still art and part ; but the justices refused , february . . in assints case , to sustain the garisoning of assints house , to infer treason , except it was garisoned after the publication of the letters of fire and sword , and that the garisoning of it before , did only infer deforcement , it being commanded to yield by the sheriff , in the kings name ; by which it seems , that garisoning houses , to defend against execution of the law , infers not treason , except it be done , either upon a publick account , or after raising and publishing letters of fire and sword. do , some argue from act , that since the assailing of houses , where the kings person is , shall be repute treason , if it be done without consent of the three estates , that therefore it is lawful to assault houses , or rise in arms , with consent of the three estates ; but this is a great mistake , for no opposition to , or invading of the king , can be justified by a warrand from the three estates ; and the meaning of this act is , that though it be pretended , that the king is prisoner in any castle , it is not lawful for any private person , upon that pretext , to raise armies and invade that place , without authority of parliament ; for it is dangerous to make private persons judges in such considerable cases . and the rysing in arms , or defending castles , on what pretext soever , is declar'd treason by the act par. ch. . the occasion of this act was , because this king had been twice kept in castles in his minority , once by the chancellour sir william creighton , and thereafter by sir alexander livingston , governour ; and at both times endeavours were us'd to besiege the castles of edinburgh and stirling , where he then was , vid. obser . on act par. ch. . by this act , regalities returning to the king in property , viz either by sale or forefalture ( for the kings property is never erected in a regality , but in a stewartry ) shall be judg'd by the sheriffs , and the ordinary judges ; and ordinarly when regalities return to the king , they are expresly supprest , and erected of new in stewartries , as orknay , act par. ch. . obser. that regulariter , these who dwell in regalities are not subject to the sheriff , vid. act par. ja. . and erections of regalities do ordinarly bear a power to repledge . the meaning of this act is , that the justice clerk shall not reveal who raises summonds , or obtains warrands for apprehending malefactors , &c. least also the malefactors , or defenders escape , before they be cited or apprehended ; as also , that when any man is delated for one cryme , the justice-clerk change not the pursuit , and raise it for another cryme , and whereas it is said , that it shall not be lawful to him to translate such actions , except it be for the better to the king ; the meaning is , that if the informer ignorantly inform in a great cryme , as if it were a small cryme , as if he should inform only that to be a ryot , which is treason , the justice-clerk may raise the pursuite as for treason . it is clear , that since by this act the name of the giver up of ditty in the porteous roll is to be conceal'd ( which is done for encouraging persons to delate ) that therefore treason should not be given up in a porteous roll , or else the paena talionis is lost , nor do i remember , that treason was taken up of old so , and if this were allow'd , discontented tennents , or servants knowing they were secure against talion might be induc'd easily to destroy their masters . this act appoints the strickers of false coyn to be punished as law will , and by the act , . parl. th . ja. . it is ordained , that they who falsify money , or counterfits the kings irons shall be punished according to the old law , and yet i find no law before that time , specifying the punishment in general ; for the . act parl. . ja. . punishes only with death , the home-bringers of black-money , that is to say , copper-money and by the act . parl. . q. m. the home-bringers of the false coyn should be delated , and the delaters is to have the half of all his goods moveable , and immoveable , but though the punishment of treason be not specified in any express act ; yet it appears , that it infers forfaulture , for else the revealer could not have the half of the offenders goods immoveable , and i find one drummond burnt for false money forging , the . november , . and his brother patrick murray burnt also , for art and part , red counsel and concealing the treasonable forging , coyning , and out-putting of false money , and the sentences upon false coyn , bear ordinarily forfalture . vid. supra act . parl. . ja. . but it were expedient to make an express act in this case . this act is now in desuetude ; and it was sounded upon the missio in possessionem per primum & secundum decretum , so much treated of● in the civil law ; but in place of all these are come our compryzings , and adjudications , whereby , if the debitor pay not , the creditor compryses , and is put in possession , and if he redeem not within the legal , then the land belongs absolut●ly to the creditor without redemption . king iames the second , parliament . by this act , the home-bringing of poyson is discharged , under the pain of treason ; and yet i find none punished as traitors upon this , and john dick , in anno . for poysoning his brother and sister , is only executed , but not forfaulted , but i believe he has had no lands to forfault ; nor do i see how a judge can proceed less severely in this case , than the law appoints ; especially , seing the act is so express , that this shall remain as an aye lasting statute . and the reason why the law is severer against poisoning than murder , is , because no man can defend himself against poison ; and poison uses never to be given , but by persons who have some trust , and so is murder under trust , which is likewise treason by our law , and yet it was only punish'd capitally by the civil law , l. . § . . ff . ad l. cornel de sicar . though this act discharges the bringing home of any poison , for any manner of use ; yet apothecaries are allow'd to bring it home , for their medecines , and this is likewise allow'd by the common law , and doctors ; and there is a venenum bonum , as well as malum ; and though buying and in-bringing of poison , be declared treason by this act , though it be not given ; yet by the opinion of the doctors , it is only punishable in that case , paenâ extraordinariâ gothofred : § . venenum . num . . this act against strangers bringing home poison , has not been observ'd amongst us , and it is hard to punish strangers for a law that they are not oblig'd to know ; and it appears they cannot be lyable , except they be advertised by some magistrate , that there is such a law ; and that therefore they should carry back these commodities ; and yet if a stranger should actually give poison , he would be punishable , though no such act as this had been made , since every man is oblig'd to know , that it is unlawful to give poison . king james the second , parliament . either it is provided that wodset lands shall be redeem'd for payment of ordinary money of scotland , and then it must be pai'd according to the rate the money gives at the time , when the redemption was us'd , and not according to the rate it gave at the time when the wodset was granted ; as for instance , if lands be wodset for ten thousand pounds , and thereafter the money be cry'd up , so that the dollar that was fifty six shilling , is to give a crown ; or a shilling is to give a merk ; in that case , the ten thousand pounds is to be consign'd , according to the rate as the money gave , though the wodsetter pay'd moe dollars and shillings , than he is to get back : this holds not only in redemption , by vertue of this act , but in all payments , as is clear by act par. . ja. . and act par. ja. . but if the money to be consign'd , be tailȝied money ( that is to say , a specifick kind of money , from the word talis ) as for instance , five thousand merks in rose-nobles , or the like specifick kind of money , then if so much money cannot be had of that kind in specie , it may be pay'd in as much of the present current coyn , as will answer to that kind of money , being of the same value as the gold and silver specifi'd in the said reversion , conform to the common law , which the lords interpret to be payment , according to the price , and value that the said tailȝied money was worth , the time of granting the obligation , march . . king iames the second , parliament : this act discharging the keeping of old stacks of corn ; and the next act discharging the girnaling of corn , seem to have been temporary , and the justices have refus'd to sustain dittay upon either . this act discharging the keeping up of more victual than will serve a mans family for a quarter of a year , and that they shall present the superplus to the mercat within nine dayes , seems likewise to have been but temporary , because of the scarcity that then was ; and at any time of scarcity , the magistrates of any burgh royal are in use , and may lawfully ( as some think ) break up the doors of victual-houses , within burgh , and ordain the victual to be sold at competent rates ; if the merchants be either unwilling , or absent ; but if the privy council be sitting , it is safer to make application to them . king james the second , parliament . obser . o. this is the first formal act of annexation , and though it bear only , that it shall not be lawful to the king to analȝie any part of his annexed property in fee , heretage , or frank-tenement , without consent of parliament ; yet this extends to long tacks ; for it is not lawful to set even long tacks of the annex'd property , and if it were , then the design of annexation , might easily be eluded , and the crown impoverish'd . albeit this act declares it lawful to the king , to intromet with any of the annex'd property , without process of law ; and by the act par. ja. . such as had , or should intromet for the future , by the kings command , with annex'd property , are secur'd : yet by our present custom , the king uses to reduce such rights , and not to intromet with them brevi manu . obser. o. that because this act bears , that the annex'd property cannot be dissolv'd , except by deliverance , and decreet of the whole parliament , and for great seand and reasonable causes of the realm ; therefore a dissolution contain'd in a confirmation of the annex'd property , after it is dispon'd , is not sufficient , but is reduceable , since dissolutions should be specially read and considered : whereas , confirmations and ratifications , pass in course without observation : likeas , disposition of the annex'd property , made before the dissolution , are declar'd null by the act par. ja. . this was so decided , february . . the king's advocat contra the earl of mortoun ; and by the act par. ch. . that decreet bearing this interpretation of all former annexations is ratified , and it is appointed , that orknay shall not be dissolv'd without the advice of the whole parliament , and for great and weighty causes , relating to the publick interest of the whole kingdom , to be considered before the disposition , least by a previous disposition , the parliament should be pre-determined in their deliberation ; and therefore it would appear , that where there is a disposition granted before dissolution ; not only is that dissolution null , as being filius ante patrem ; so that it could not make the preceeding disposition to convalesce , even from the date of the dissolution : but that a posterior disposition , relating to that dissolution , would be null , since by the first disposition , the parliament is once pre-determined in the deliberation ; and therefore it would be fit , that such dissolutions should expresly bear this difficulty , and dispense therewith , per expressum . it is here also fit to observe , that dispositions of rights , made of annex'd property , in the kings minority , though ratified in parliament , and after the kings majority , are null ; albeit any other deed done by a minor , in his minority , is valid , if ratifi'd in majority ; for though it may be alleadg'd , that the reason of this speciality is , because ratifications pass in course , and the grounds are not considered , as ought to be in annexations . yet the true reason of the speciality must be , that it is easie to obtain ratifications of such null rights ; and therefore the parliament , to preclude all from seeking them , has declar'd , that they shall not be valid when obtain'd ; or else , because a lawful dissolution is pre-requisit , and ought to preceed a lawful disposition of annex'd property ; and therefore , though the ratification might supply the defect of the prior disposition , yet it cannot supply the nullity arising from the want of the former dissolution . obser. o. that when any dispositions are reduc'd , the person who took such unlawful dispositions , must restore the bygone mails and dewties from the very date of his intromission ; for his right being contrary to an express law , he is not bonae fidei possessor nec facit fructus suos . and this act bears , that the takers shall refound all profits , for the time they had the lands ; so that the possessor has neither the benefit of a possessory judgement , though he has possest seven years ; nor should such rights prescrive , being null , and contrary to an express law , & quod non est alienabile non est praescriptibile ; nor doth the possessor sacere fructus consumptos suos , not being bonae fidei possessor ; and yet the lords shunn'd to decern such as had intrometted with the rents of orknay , lyable in repetition of the bygone mails and dewties , when their rights were reduc'd upon this act , because it had not been in observance , as some lords affirm'd ; and there was a most probable ground of ●gnorance in that case . as the wardens could not cognosce upon these crimes , which are call'd the points of the crown ; so neither can the commissioners for the borders , who are now come in their place . the meaning of the exception made in this act is , that tho the wardens cannot generally cognosce upon points of the crown , i● treason , fire-raising , &c. yet they may , if such a tryal be necessary , for conservation of the truce : that is to say , if these crimes be committed by common robbers upon the borders . though this act discharge any regalities to be granted otherwise , than by deliverance of parliament ; yet they are ordinarly granted by signatures under the kings hand , and a defence propon'd by the vassals upon this act , was repell'd by the exchequer , . at the passing of a signature , containing a new erection : but i see not how this could be repell'd by the lords of the session ; the act is so express , and so reasonable ; for the erection of a regality , makes a new justiciar , who has very great power ; and a lord of regality is regulus , a little king , and takes off the people from an immediat dependence upon the king. likeas , the lord of regality gets right by the erection , to the single escheats , which prejudgeth both king and people , and is expresly contrary to the act . par. ja. . discharging the giving away the kings casualities in great , and they prejudge much the prior , and establisht rights of sheriffs , subject the people to moe jurisdictions , and by multiplying registers , distract and render uncertain all buyers , and others who are oblig'd to know the condition of their debitors , and so much is the king concern'd in erections of such regalities , that they are expresly revock'd , by all our kings in their general revocations . though by this act , it would appear , that regalities ought to be null , if they be not originally granted in parliament ; yet a posterior confirmation in parliament is by our decisions found sufficient , though it may be alleadg'd that confirmations pass in course , without exact consideration ; whereas such regalities ought not to pass so slightly , since they establish a summar jurisdiction over the lives of the subjects ; and such previous grants do pre-determine the parliament in their free voting ; and therefore should no more be regarded than they are in the case of annex'd property , vid , not . on act . supra . and on act . par. ja. . notwithstanding of this act , several sheriff-ships are granted in fee since this act , and therefore are reduceable ; but it is very observable , that though these two prohibitions fell under the parliaments consideration at once , yet the parliament discharged only regalities , without consent of parliament , but they discharged heretable offices simply , as tending for ever to fix the dependence of a whole shire upon an subject ; whereas regalities are only over a mans own lands , or his vassals ; but sheriff-ships are over other men , and were it not for this , it may seem that the first act concerning regalities , was unnecessary , since this act would have serv'd for both , vid. observ . on the act parl. jac. . the rubrick and body of this act being compar'd , makes theft to be capital ; for the rubrick bears , that sornars shall be punished by death ; and the act sayes , that sornars shall be punished as thieves ; therefore thieves should be punish'd capitally , but we have no positive and specifick law for punishing theft capitally . ordinary actions within towns , are not judged now by the counsel of the burgh , as this act requires , but by the baillies . this act , as to the habit of members of parliament , is in desuetude , for the dukes , earls and lords , wear all scarlet cloath , with bars of ermine ; the duke has five bars , the earl four , and the lord three , and the burrows have no special habit. the fore-speakers for cost , here mention'd , and who are to have green-habits , were the advocats , who were allow'd to plead before the parliament , and this habit for them is in desuetude , for they plead before the parliament ; without any gown , or special habit. they are call'd fore-speakers for cost , because they may speak for money ; and advocats in our old journal-books , are still call'd prolocutors , or fore-speakers ; but friends are also in the journal-books , call'd prolocutors ; and therefore advocats are here distinguish'd from them , by the words prolocutors for cost . king james the second , parl. . the meaning of this is , that bone-fires ( call'd here bails ) be made at several places , to forwarn the people of the approach of the enemy , this is here call'd taikenings . though where treason is committed , the committers are to be imprison'd , and cannot be let out upon caution , because the crime is not bailable ; yet where there is only a presumption of rebellion , though it may be violent , the party may be let out upon security , for else a person might be punish'd without probation ; for imprisonment is a severe punishment . likeas , by the lib. . r. m. cap. . num . , , , & . it is there said , that he who is accus'd of treason , may be let out upon caution , and if he want caution , he is to be imprison'd : and yet by this act , it is appointed , that persons slander'd , or suspect of treason , shall remain in firmance till they be try'd by an assize , and this last is now in use ; but there must still some previous tryal be taken , by precognition and examination , before any man can be imprison'd , or his goods secur'd for treason , it being most unjust to use such severities , without very good ground . because this act of parliament sayes , that if persons be slandered for treason , they shall be tane , and their persons warded therefore . it was given as an instruction by the council to the circuit court . that such as compear'd and desir'd to go to the knowledge of an assize , might be bail'd , and let out upon caution because this act struck only against such as would not appear , but needed to be taken ; and yet this is not universally true , for if there be good grounds from a previous tryal by two witnesses , to suspect the person guilty , it is not just to admit caution , and the true speciality upon which the council founded that resolution , was , because above four thousand were delated in that porteous roll for treason , and it was almost impossible to imprison all . the acts , , , are abrogated by the union of england , and so is the ; but though they be abrogated , yet the following observations may be made from them . obser. o. from the act . that the supplying the scottish towns , then under the command of the english , is declar'd treason , as is in general , the assisting of all enemies to the state , vid. ja. par. cap. . ja. par. act . for though we have no special statute , declaring the assisting of enemies of the state to be treason ; our acts running generally against such as assist declar'd traitors , or assure with english men in particular ; yet it is treason by the common law , l. . ff . ad l. jul. maj. and such of our nation as continued in the dutch service , during the war with holland , in anno . were forfaulted as traitors . by the second part of this act , it is declared treason , for any who ride with the warden of the marches , or any other chiftain , to go away with any manner of goods , till they be thirded , that is to say , till they be divided : for one third , by the law of the borders , belongs to the king ; a second third to the warden , or chiftain ; and a third to the apprehenders : for understanding whereof , it is fit to know , that lands , when taken from enemies , become the kings , or the common-wealths , by the laws of all nations , but moveables by the law of god , deut. chap. . vers . . josh. chap. . vers . . when taken , were divided equally amongst the takers : but sometimes there was a division , the one half falling to such as fought ; the other , to these that stayed with the baggage ; and a fiftieth part of their part , who fought not , was dedicated to the lord ; whereas one of five hundred was only consecrated out of their part who fought , num. . verse . at present grotius distinction , lib. . de jur . bell. c. , , . is generally observ'd , whereby if moveables be taken by a party led on by an officer , who only knew the design , then the souldiers get no share , but all falls to the publick ; but if the moveables be taken in excursions , or free adventures , they belong to the takers : and voet. c. . n. . de jure milit sets down the several proportions , whereby goods are divided amongst a party and officers in holland ; where , if the party exceed . the captain gets a tenth , the leiutenent a fifth , the ensign a third , the quarter-master a double portion , the serjeant one and an half , and each souldier a single share ; but still the horse get double of what is due to the foot. by this act , which is a continuation of the former , it is declared capital , for any man to take from another , goods , or prisoners , which they are in possession of ; from which it is observable in war ; that possession or capture gives only right thus , inst. de rer . div . par. . it is said , item quae ex hostibus capiuntur statim jure gentium capientium fiunt ; and therefore a ship being pretended to belong to the king , because one of the kings friggots had beat the convoy that guarded her , and was in pursuit of another , and had taken both her and this ship , here controverted , if the privateer had not interveen'd , and it being answer'd , that an actual capture could only establish the property ; and this statute requir'd possession . the lords before answer , granted mutual probation , for trying whether this ship could have escaped from the friggot , if the privateer had not taken her . it is treason to raise a fray wilfully in the kings host , for this wilfully done , shews a design to ruine the army , and i find that the master of forbes was hang'd for raising a fray in the kings host at jedburgh , july . . the words without cause , are added here , because if a man doing his duty was the occasion of raising a fray , he ought not to be punish'd , as if an officer punishing a mutineer , should by that occasion , raise a fray ; this would not be punishable . by the civil law , such as were authors of sedition in an army , ( for a fray is properly sedition ) were punish'd as murderers , l. . § . . ff . ad l. cornel. de sicariis ; but if the common-wealth was in danger , they were punish'd as traitors , as in this statute , and in l. ff . ad l. jul. maj. and they are every where now punish'd by death , sand. decis . . tit . . des . . vid. voet. de jure milit . c. . num . . and if the authors cannot be known all involv'd in the guilt , are forc'd to cast lots , voet. ibidem . sometimes also , if the sedition was carried on , sine gravi tumultu & intra vociferationem , the guilty were only casheir'd l. . § . . ff . de re militi ; if the tumult was rais'd upon privat picques or grounds ; but if it was rais'd upon prejudices against the common-wealth , or prince , it was punish'd , even in that case , and though no actual prejudice follow'd , as treason , d. l. . ff . ad l. jul. maj. king iames the second parliament . this putting the kingdom in a posture of defence , was formerly ordain'd , stat. will. cap. . stat. . r. . cap. but all these acts are now in desuetude ; and the act concerning the militia , is regularly come in their place ; but yet the king may call for either , vid. observ . on act par. ja. . by the kings letters , by bailis is mean't letters to raise fire or takenings for advertising the countrey . by out-hornes , is mean'd these who follow'd the sheriffs , and whose office it was to raise the kings horn , for warning the countrey to assist the kings officers . this act contains what is fit to be done in time of pestilence , and because it was an affair to be govern'd by christian charity ; therefore the regulation of it was referr'd to the clergy ; and upon this account it is , that the act says , the clergy thinks , without speaking of king or parliament , it being ordinary in our acts of parliament , to set down the report , without drawing it into the formality of an act of parliament , and thus in the , and acts , parl. ja. . it is said , the lords thinks it expedient , by which word , lords , must be interpreted lords of articles there was of old distresses taken from such as came to fairs , that is to say , some thing was taken to be a surety for their good behaviour , and was deliver'd back at the end of the fair , if the owners committed no wrong , during the fair. this act is only to be interpreted of the fees due to the great constable of scotland , who is now the earl of errol , for he only can exact , during the time of parliament ; but yet that exaction by him at fairs , in time of parliament , is in desuetude ; and other constables have fees , which they exact in time of fairs , by special infestment , as the constable of dundee ; and it is observable from this act , that a long custom of exacting fees and customs from the people , is not warrantable , except either that old custom be founded upon an old and express infestment , or warranted by an act of parliament . king james the second , parliament . spuilzies are here divided in spuilȝies of moveables , and spuilȝies of fee , or heretage ; but that improper way of speaking is , not now us'd , for the dispossessing a man out of heretage , is called ejection and ejections , are now pursu'd before the lords , as ordinary actions , but not in the special way here prescribed . that maxim of spoliatus ante omnia restituendus , extends to spuilȝies , of both moveables and heretage . all those forms of process are to be consider'd at the institution of the session , by king james th . by this act appeals to king or parliament , are utterly discharged ; but the question is , whether only appeals stopping execution , be hereby discharg'd : and it is alleadg'd , that appeals were only discharg'd here , because the session was then a committee of parliament , and there lyes no appeals from the parliament ; but it seems there is likewise no appeals from the session , as presently constituted , because they are invested in all the priviledges the former session had , and that the act parl. ja. . allowing appeals , after this act must only be interpreted of appeals from inferiour judicatures ; but even these are also in desuetude : whether protestations for remeid of law , be allowable , notwithstanding of this act , was debated in anno . and the king determined by his letter in anno . that they were not to be allow'd to advocats , nor parties , after the lords of sessions decisions ; albeit it was alleadg'd then , that by an act of sederunt , in anno . protestations for remeid of law , were expresly excepted in the act discharging murmuration against the lords ; and that lethingtoun , balfour and hope , in their practiques , tit. lords of the session , do express these as allowable ; nor are they discharg'd expresly by these acts ; and though neither appeals to the parliament , nor protestations for remeid of law , before them , be not now to be practised by parties , or advocats ; yet it is not yet decided , how far the parliament may rescind the decreets of the lords ; and though they might , yet it was urg'd , that it is not fit they should , since parliaments may seem more subject to passion and factions then the session , great men have too much influence there : and by these , and such appeals , the sitting of parliaments would be very much lengthen'd ; and because their sitting is uncertain , the sentences of the lords could not be acquiesced in as a security , and all pleas would be thereby both endless and expensive , and there is as great reason for discharging appeals to king and parliament , as there was at this time ; for the lords then , though a committee of parliament , were not more learn'd than the session now ; and upon these considerations the parliament , . did by a letter to the king , in a case betwixt sir thomas hamilton and alrud , declare that there could be no appeal from the lords of session . this act against litsters , buying and selling cloath , is extended so by the act parl. ja. . that no crafts-men may use merchandise ; and the reason of this law is , because if they were allow'd to buy , they would make none , and so neither improve themselves , nor the native commodities of the kingdom , this act is renewed by the th act sessi . parl. ch. d. every merchant must sail with at least , three serplaiths of goods , and the serplaith contains stone of weight , but by the act parl. ja. . it is appointed , that no man sail without half a last of goods , which was introduced , because pedling merchants having very small stocks , were both a discredit to the nation , and were also forc'd to sell at any rate , for they could not wait for a price ; but now all such acts are in desuetude . obs. that by this act it is appointed , that none sail or trade but free burgesses , which is restricted by the act parl. ja. . in which it is declar'd lawful for prelats , lords , barons , and clerks , to send their own servants ; and by the act parl. ch. sess. . it is declared lawful for indwellers in burghs of regalities , or baronies and others , to send abroad corn , cattel , neat , hydes , and all the native commodities of the kingdom . in all acts for visiting hospitals , the chancellor is still one ; and though by this act , where the foundation of hospitals cannot be found , the remeid is refer'd to the king ; yet by the act parl. ja. . it is appointed , that where the foundation cannot be found , the rents shall be bestow'd upon the poor . by the canon law , hospitals are not benefices , and yet the care of them belong'd to the bishop , tit . . quest . . vid. not : on act parl. ja. . supra . this sumptuary law is in desuetude , by musling of women here is mean'd , being masked . feues being free and gratuitous donations , bestow'd for service , it was just that the vassal should not have liberty to sell without the consent of the granter , for else others might be obtruded upon him as vassals , and he might want the service of that family , which he particularly chus'd ; but yet the feudal law allow'd the vassal to grant a sub-feu , which though it may seem a kind of alienation , yet was allow'd by that law , lib. . tit . . § . sed etiam . because in alienations , the superiour would have lost the service of the first family , and would have had but one vassal ; whereas in sub-infeudations , the first vassal must still remain vassal , and be lyable to all the casualities and services , and the superiour gets likewise another vassal , viz. the sub-vassal , a sub-feu being likewise but emphiteusis , the sub-vassal is but in effect a tennent ; and therefore by this act of parliament , the king declares , that for better cultivating and labouring of the kingdom , he will allow all his own vassals to set their lands , which they hold immediatly of him in sub-feu : and it is declar'd , that this act shall be equivalent to a confirmation . and these sub-feues are by this act only call'd assedations ; and are by the act par ja. . ordain'd to be set for the policy of the realm ; because , as i conceive , the kings vassals being thus freed from the labouring of their own lands , they might be the abler to serve the king in his wars ; and the land likewise be the better laboured , by these sub-feuars , who could attend the labouring thereof . upon which words , our soveraign lord , shall ratifie and approve the said assedation . it was debated , whether a sub-feu , set by vertue of this act , did fall under the forefalture of the vassal , though it was not confirm'd in the person of the sub-vassal ; and it was alleadg'd , that the sub-feu could not be quarrell'd ; because the king by this act , having invited men to take sub-feus , it was not just , that the invitation given by a publick law , should become a snare ; and having promis'd to ratifie and approve the sub-feu , that promise being insert in this publick law , was equivalent to a confirmation ; and therefore should defend against a forefalture , as well as a confirmation could have done ; and though these words were alleadg'd only to import a promise to ratifie , which did imply , that application should have been made for a confirmation . yet to this it was answer'd , that this was an invitation , and the words subjoyn'd thereto , must therefore be considered as a present approbation , especially , seing there is no time prefixt for craving of a confirmation , nor any irritancy annex'd to the not craving thereof . it was likewise urg'd , that by the act parl. . ja. . this sub-feuing should be no cause of forefalture ; and that since this act would defend against ward and recognition , it should much more defend against forefalture upon treason , for that being a most personal crime , of which , not only the sub-vassal is innocent , but oft-times concurs with the king , against his own supe●iour ; the poor sub-vassal ought therefore to be less troubled upon it , than upon recognition , to which the sub-va●sal himself is somewhat accessory , because he receives the right , upon which the recognition is infer'd . and whereas it was urg'd , that by the act parl. ja. . the sub-vassals of the kings vassals , who were forefalted at that time , are secured , if themselves were innocent ; which act had been unnecessary , if this act had secured them , and that act is declar'd to have been only temporary , & pro eâ vice , by the act parl. ja. . to this it was answer'd , that by this act , such sub-feus are only allow'd , as are set for the just avail , and all other feus might have been quarrell'd ; and therefore that act was made to secure the sub-vassals of forefalted persons , whose rights might have been quarrell'd upon that head , or else that act has been made ad majorem cautelam , and to prevent all debate , which is most usual . upon this debate the lords found , that this sub-feu fell not under the forefalture , this general law being equivalent to a confirmation , february . . marquess of huntly contra cairuburrow . it has also been debated , whether wodsets feu'd out are secur'd against this act , as well as lands irredeemably dispon'd , and i think they are , since a wodset right is as properly a feu , as an irredeemable right . what is meant in this act by the competent avail ; for which ward lands may be feu'd , is dubious , but the just avail , for which the kings proper lands may be feu'd , is by several acts of parliament , declar'd to be the retour-dewty , or new extent ; and therefore i think that the competent avail here , must also be interpreted to be the retour-dewty , and in january . betwixt the same parties , it was found , that though the competent avail be the retour-dewty , exprest in his service ; yet the sub-vassal getting a part of the lands feu'd to him , he ought to pay no more for the competent avail , but his proportion of his superiours retour-dewty ▪ and that if a charter was given him blank by his superiour , which he fill'd up himself with a special reddendo ; the charter was not therefore null , and he was only lyable in his just proportion of the said retour'd-dewty , and the vassal , if he pleases , may by a process against his superiour , get this competent avail , to which his share should extend , determin'd , and that being specifi'd in his service , will thereafter become his retour-dewty , though ordinarly the sub-vassal , to prevent expence , or by mistake uses to retour the dewty that was payable by his superiour , especially if the difference be not great . the punishment of such as abuse the power of their jurisdiction of regality , is left arbitrary by this act. vid. c. . stat. rob. . this act is explain'd in the act parl. ja. . by this act all remissions are null , except the party injur'd be assythed , and he who produces the remission , must either find sufficient caution to pay the assythment within fourty days , or to stay in prison till the payment , and by the act parl. ja. . and act parl. ja. . it is provided , that if the remi●sion contain not an assythment expresly in the body of it , the remission shall be null ; but because these acts were temporary , therefore by the act parl ja. . if any remission or respit be granted , before the party injur'd be first satisfi'd , the remission is to be null ; and though by that last act , it would seem that an assythment subsequent to the remission , would not make the remission to convalesce ; because that act requires , that the remission shall be null , as said is , yet the meaning of that act seems only to be , that without an assythment the remission shall be null . from the same act , exception is made of remissions granted , for quieting the highlands or borders , which may be valid without assythment , gratiâ factâ a princip● nocenti non valet nisi pax sit prius habita ab haeredibus offensi , which we call a letter of slains , vel nisi fiat reparatio damnorum , plot. concil . . clar. quest. . num . . ubi traditur posse regem tamen gratiare nocentem sine pace privati , quando damnandus elaborasset pro bono reipublicae , vid. l. non omnes § . fin . ff . de re milit . the second part of this act relates to remissions , for spuilȝie● or theft , as to which , the lords of the session may restore the party , and assyth him , notwithstanding of the remission . by this act , no free-holder can be forc'd to come to parliament , except he hold a twenty pound land of the king ; but none can be now compell'd , and this was only in the time when all free-holders were oblig'd to compear in parliament , as the kings head-court , nor can any now vot in the election of the commissioners , except they hold a shilling land of the king immediatly , or hold ten chalders of victual , or a pound ( feu-dewty , all deducted ) off a bishop , or abbot formerly , and hold the same now of the king , act par. ch. . but now again , since the restitution of bishops , the bishops represent their own land in particular , and so their vassals are not allow'd to sit in parliament . vid. act par. ch. . the negligence so severely punish'd in judges by this act , must be negligentia dolosa & supina , and the distinction here observ'd , betwixt the punishment of heretable officers and others , is ordinary amongst the doctors , bald. ad l. . ff . de serv. fugitiv . where he says , that pro negligentia judex removetur ab officio sed hoc non tenet in judice perpetuo farin . q. . num . . says , that majores officiales non removentur , sed minores facile removentur , by th● cap. . stat. rob. . a negligent judge , viz. a baillie of regality is to be punish'd by escheating his moveables , and their life is to be in the kings will. a faulty judge is also punishable by this act , in the same way as a negligent judge , which must not be mean'd of the meanest fault , seing the punishment is so great ; but whereas by this act the punishment is the loss of office for ever , if it be not heretable ; yet by the act parl. . ja. . the heretable officer lose● his office for three years ; whereas this act bears , this being lawfully prov'd , and notorly kend , we must not conclude , that a judge may be convict upon this notoriety without probation , for these two are only exegetick of one another , and the sense is , they being convict upon notor probation , vid. supra observ . on act parl. ja. . the form now to be follow'd in case any man should masterfully possess another mans lands is , that if violence was us'd at the entering , then the council upon a complaint , will restore the party dispossess'd ; but if the intrant entred in vacuam possessionem , though without any right , he behov'd to be pursu'd before the session , by an action of intrusion . k. james iii. parliament i. by this act , the third of the king's rents of assyse ; that is to say , the third of his lands and customes , belong to the queen as her dowrie , or terce allenarly , which is conform to the common law of this kingdom , by which the wife has right to a third of all the lands , in which a man dies infest , and that though she be otherwise provided , if she be not expresly secluded from it by her contract of marriage , so that it seems the queen would have had right to a terce of proper lands belonging to the king , though this act had not been made . but now by the act parl. ch. . if a wife be provided to a particular provision , though never so small , either in her contract of marriage , or in any other write , she will be secluded from a terce , except her terce be expresly reserv'd to her by and attour the particular provision . nota , the rents of assize , comprehends the kings customes and lands , as was found , decemb. . . and march . . ogilvie contra gray . it may be doubted whether this act was temporary , relating only to this queen , or if any queen of great-britain will have right as queen of scotland , to a third of the property , conform to this act , since the act seems to be reasonable in it self , and that the queen is founded in this right by the common law , and if this had been only a temporary right , relating only to this queen , it would not have been inserted amongst the general laws ; or at least , it would not have been generally conceiv'd , as this act is , in these terms , the dowrie of the queen , for terminus indefinitus aequi●ollet universali . i find , that in the act parl. ja. . queen ann is provided to the third of the property , but not to the third of the customes , but that being by express paction , derogats not from this law. sometimes benefices ecclesiastick , were bestow'd upon secular persons , who were call'd commendators , because the benefice was commended and intrusted to their oversight , and they were procuratores in r●m s●am & habebant tantum detentionem & poss●ssionem ; but were not proprietars , and so could not dispone , roman . concil . . and because commendators were but trusties or tutors ; therefore rights made by them , though with consent of the chapter , are no longer binding in our law , than during the commendators own right : and by this act , these commendams are discharg'd , and yet the deeds done by them , are not annull'd ; and therefore many rights made by commendators since this act , are sustain'd as valid , though they were not proprietars . by the canon law , only the pope could grant commendam perpetuam , and the bishops could only grant commends for six moneths , c. nemo . elect. l. . the pain of lawburrows here exprest , is hightned by the act . par. ja. . by which every earl or lords penalty is made two thousand pounds ; every great baron , a thousand pounds ; every free-holder , a thousand merks ; every fewar , five hundred merks ; the un-landed gentleman , two hundred merks ; and the yeoman , one hundred merks , which last act is now observ'd : and though penalties be exprest here , against breakers of lawburrows , found to church-men , and that there be no mention made of them in the last act , yet an arch-bishop , or bishop , can pursue now for the same penalty that is due to an earl : and bishops and their wives are allow'd the same solemnities at their funerals , that are allow'd to noblemen and their wives , by the act par. ch. . and though there be no mention made here of dukes and marquesses , yet the priviledge granted to earls , is extended to them . o by this act , the penalty is to be apply'd to the king , and is due by and attour the reparation due to the person les'd ; but by the last act and the present custom , the penalty is to be divided betwixt the king and the party , and though by this act the master is free , if he present his servant , who breaks the law-burrows . less than the law-burrows ; that is to say ( he who found the lawburrows ) bring the trespassors to the king or sheriff , within fourty days , dominus noxali judicio servi sui nomine conventus servum actori noxae dedendo liberatur ; yet by our present custom , the master finds caution , that the raiser of law-burrows shall be skaithless from him against whom it is rais'd , and his men-tennents and servants ; and therefore the master seems now lyable , though he should present his servants . albeit these be the ordinary penalties allow'd , where there is no other proof of the danger , then the oath of the complainer ; yet if the complainer prove threatnings , the council or criminal court , may ordain surety of law-burrows , to be found upon such sums as they think proportional to the danger . vid. not. on act par. ja. . supra . though by this act , all summons are to be on twenty one days warning ; yet all summons that are priviledg'd by their own nature , or the lords deliverance , come in upon six days . vid. hope form of process ; and by an act of sederunt , july . . it is declar'd that no actions can be priviledg'd , except removings , recent spuilȝies , recent ejections , intrusions , succeeding in the vice , exhibitions , causes alimentary , summons , for making forthcoming , transferrings , poyndings of the ground , walkennings , special declarators , suspensions , prevento's and transumpts , all which , and all second summons in all actions , are to come in upon six days warnings , except recent spuilȝies , because by the act par. ja. . these were to come in on . days ; ejections , intrusions and succeeding in the vice , which are of the nature of recent spuilȝies : but since this act appointed all summons to come in upon . days ; dubitatur , how the lords could have priviledg'd any summons upon fewer days , though there was an old immemorial custom for this , prior to this act of sederunt ; and it will be fit to ratifie this act of sederunt in the first parliament . by that act of sederunt likewise , second summons may be executed against persons within edinburgh , or the suburbs thereof upon twenty four hours . vid. observations on the act parl ja. . this is abrogated by the union of the nations . money is yet escheated to the king and his customs , if taken out of the countrey without a warrand ; but that part of the act which allows a noble for every private man's expence , is in desuetude for now every man is allow'd to carry out what may defray his expence ; and that part of the act , appointing every man to make faith , and swear that he carries no money out with him , is also in desuetude : but any man may be pursued for having carried out money , and his having carried out , and the quantity may be proven by his oath . we see also in this act , that seculars could not judge ecclesiasticks , for ecclesiasticks were to be judg'd by the official , that is to say , the bishops judge , in whose place the commissars are now come , and this priviledge descends to church-men from the canon law , c. . de judiciis : but since the reformation , this priviledge fell , for now all men whether secular , or ecclesiastick , answer to the civil judge . the great reason why our own coyn should not be carried out is , because our money is finer nor forraign money , being eleven denier fine , and so is constantly exported , and being melted down into forraign coyn , is brought home again to us , at a greater extrinsick value ; but yet because it might be doubted if this prohibition extended to the carrying out of all money that is current , or if that which is not current may be carried out ▪ such as ryals , &c. for the carrying out of gold and silver , is generally ordain'd to pay custom when it is carried out , by act par. ja. . but by the act par. ja. . the carrying out of all gold and silver , coyn'd or un-coyn'd , infers escheat of the gold and silver so exported . vid. not . on act par. ja. supra . king james the third , parl , . by this act noblemen and gentlemen pretend to be free from custom of what is imported for their own use , as to which , i have insert this paper . reasons , why the nobility , barons , and other heretors in scotland , are lyable to pay customs and excise , for what commodities they bring in , though for their own private use . our laws and acts of parliament , have granted to his majesty , the custom of all goods , exported or to be imported , as is clear by the act par. ja. . the words being , that his majesty , with consent of the nobility , council and estates ; have ordain'd that all cloath , and other merchandice , brought into this realm , shall pay custom , &c. and therefore the king being , as to this , founded in the rule , all must be lyable , except where there are clear exceptions derogating from the general concession . likeas , by an express statute , act par. ch. . the customs of all goods , are confirmed to the king. and a special , a. b. c. of all customable goods , expressing what each species is to pay . in which act there is no exception of any person whatsoever . by the foresaid act par. ja. . customs are to be paid to the king , according to the use of any other kingdom , but so it is , that ●y the use of other kingdoms , and particularly of england , and france , the nobility , barons and others , pay customs for all imported goods . the customs being granted for the defence of the kingdom , and the support of his majesties royal dignity , it is just that the nobility and barons , should rather pay than any others , since they are of all others most concerned , to maintain the one , and support the other . scotland being a countrey , that has no consumption , for imported goods , save within themselves , if the nobility and gentry should not pay , they might bring home all their own commoditie● , and so there should be little or no customs due to the king. they might colour the trade of merchants , by granting simulat commissions , for bringing home , the goods of merchants , under their names , which would occasion much perjury , and at least put the customers to a process , and suspend the payment of the true customes , till that were clear'd by process . when this kingdom thinks fit , to guard against the importation of any forraign goods , they do this by imposing great customs , as was lately done by imposing per cent . upon all english cloath . but so it is , that if this exemption were allow'd to the nobility and others ; these prohibitions would be useless and ineffectual , for those prohibited goods might be brought in by them , and so our manufactories , could never be encouraged , nor could we force other nations , justly to ballance their trade with us , or keep our money within our own countrey . if these exemptions were allow'd , there could be no possibility of lessening and curbing the luxury of the nation ; for the nobility and gentry , might still wear what they pleas'd , at least it would be an encouragement to them , to bring home things superfluous , they being free from impositions , whereas their being burdened with custom , would discourage them to bring home superflueties . the exchequer has in their tacks been in use to set the customs with express order , to allow no exemptions , and the customers have exacted customs from the nobility and gentry , which proves the kings possession , and the acquiescence of those , who plead the exemption . whereas it is pretended , o. customs are regularly a duty , impos'd upon merchandice and traffique ; but what noblemen and gentlemen , import for their own use , is not merchandice , nor commerce . o. by this act and by act . par. ja , . the act par. ja , . and the . cap. leg. burg. there is an express exemption from customs , granted to the nobility , barons and other heretors , for what they import to their own use . it is answered , that as to the first , custom being impos'd for the uses foresaid , the payment should be regulated , by the reason that imposed the imposition , and not by the nature of the traffique ; and if that were a good reason , neither merchants , burg●ss●s , nor any else should pay customs , for what they are to apply and consume for their own privat use . o. though that were generally true , as it is not , yet the laws and customs of this kingdom , should alter the case here , as it does in other kingdoms . to the d it is answered , that o. there is a great difference in our law , betwixt these , persons being free to trade , and so not lyable to the pains of un-free traders , and their being free from paying of customs ; and the first two acts cited , do certainly militate only in the first case , by granting them a freedom to trade , but not a freedom from paying of customs . and as to the act p●r. ja. . it does not grant an exemption from customs . and albeit it may be urg'd , that the first part of that act having imposed customs on all , and this being an exception , it must be an exception from the rule , yet consequential arguments , should not take away express laws , nor is this an exception , but rather a cautionary reservation , and these use to be insert ad majorem cautelam and should never be extended beyond the terms of the reservation . but so it is , that the reservation is not conceiv'd absolutely , but only conform to the laws and liberties , granted to them before . and therefore since it cannot be subsumed , that there are any former laws , granting this exemption from customs , it must be restricted to the priviledge of their b●ing free , from the pains of un-free trading only . o. it is to be consider'd , that the former laws , allows them only the liberty from being punish'd as un-free traders , as to what they import by their own servants , for their own privat use , and as the return of commodities of their own product , exported by them . nor does the . chap. leg. burg. extend further than to exeem barons , from in-land customs , due to subjects . o. the time of that act , the customs were justly impos'd , upon exported goods , but thereafter his majesty was graciously pleas'd , to lay the greatest part of the customs upon the imported commodities ; and so having very much freed the barons of a duty , that burdened their product , it was not reasonable , that their product and imported goods should be both free . likeas , so convincing was this argument , that albeit some shadow of an exemption , was subjoyn'd , when the customs were imposed , upon their product by the first constitution , in that act . yet when this burden was transferred , by the act . from the export to the import , the barons did require no such exemption , nor does the act bear any ▪ and so this act is innovated , by the said posterior act. as to the excise , there can be no pretence , for any exemption from it , since there being no such duty extant , the time of the act . that act cannot be extended to the excise ; and whereas it is pretended , that by the act sess. pa. ch. . this exemption is renewed after the imposing of excise . it is answered , that the said act ch. . does not express any such priviledge , but only says , that the regulation of the differences , betwixt the burghs royal and burghs of barony , introduced by that act , shall be but prejudice , to the noblemen , prelats and others , of their priviledge of importing any of the goods , allowed to be then imported , for their own and families use allenarly ; which can only be interpreted , to relate to their freedom of trading , that being the only design of the whole acts , in which there is no design of restricting or innovating any thing , with relation to custom or excise . and thereafter since at all times , the king is founded quoad the payment of customs ; much less ought we to debate this with him at this time , when his majesty is content to lessen his uncontroverted right in the customes , for the enriching these who controvert this his right , by consenting at their desire to discharge , more imported goods , than would pay him more customes then he can expect from these not exeemed . notwithstanding of these reasons , yet by the present tacks , noblemen and gentlemen , are exeem'd from paying customs for what they bring for their own use , but they are not , exeem'd from excise , nor the additional duties , because these were granted to the king , in contemplation of what the king lost by the want of the custom due to him , upon goods now prohibited , vid. gimnas . de vectig . p. . where it is told us , that by the laws of germany , illustres & generosi sunt immunes pro his quae sunt pro victu & cultu suo vid. l. omnium . c. de vectigal . vid. annot. act par. . ja. . vid. annot. act par. . ja. . obser . o. this act appoints all ships to have chartor parties , and because there was no penalty against these , who had no chartor party ; therefore by the act par. ja. . the penalty of twenty pounds is adjected ; and yet both these acts are in desuetude , ; for within the kingdom , no chartor parties are used , nor are they found necessary , even for these who sail abroad . observ. o. that though it be said in this act , that when any debate happens betwixt master and merchant , that they shall underly the jurisdiction , and ordinance of the burgh , to which the ship is fraughted , without any exception ; yet by the custom now observ'd , such pursuites may be intented against the defender , wherever he dwells , or before the lords , even in the first instance . observ. o. that though by this act it be ordain'd , that no merchant goods be riven or spilt , with unreasonable stowing , or the masters fault , under pain of tinsel of the fraught , and amending of the skaith , yet the skipper is lya●le , if the goods be spilt , though without his fault , & ex casu f●rtuito , as by water from a pomp , though the pomp had a stellage about it , and was proven to have been a sufficient pomp , before the ship set forth , so that this danger could not have been foreseen , & quamvis locator non tenetur ex casu fortuito ; and the words in a bill of loadning obliging the skipper to restore the goods well conditioned , can only bind , ad exactissimam diligentiam vid. peckium pag. . yet the lords thought , that if such defences were allow'd , merchants could have no security , for they were neither oblig'd to know , nor could they prove the secret frailties of ships , november . . lowrie contra angus . this act in so far as it appoints a seek-fraught to be paid to the chaplain of the nation , is in d●suetude : and by the chaplain of the nation , here is mean'd the kings almoner , which was to be given to him for the use of the poor , for in the next line it appoints a tunn fraught to be paid to the kirk-work of the town , to which they are fraughted ; but i know there are some who say that capellanus noster , mentioned among the witnesses , to the kings deeds , is mean'd the director of the chancellary : the chancellary being call'd in all our old writs , capella regia . bruges was the first staple of this nation , but it 's discharg'd by this act , to be the staple for the future , and our ships are allow'd to go to the french ports by the following act , because of the alliances we had with france , and that france and flanders were then entring into wars ▪ staple goods are by this act to remain in staple , and not to go to mercats , for clearing of which act , it is fit to know that kings and common-wealthes , allow some goods only to be sold at particular places , and these are call'd staple goods ; and the place is call'd , the staple port , jus stapuli est potestas sistendi in suo foro restringendique merces speciali emporii beneficio certis civitatibus competens loccen . de jur. marit . lib. . c. . num . . potest enim rex ob bonum publicum in hoc casu dispensare , l. ult . c. de leg . but this priviledge of staple , is not competent , except it be specially granted , and strangers as well as natives , may be forc'd to observe that priviledge , for they are here tanquam subditi temporarii , grot. de jur . bell. part . num . and . but yet this act discharging the carrying of staple goods by sea , from simon and jude's day , till candlemas , is in desuetude ; for our best trade is now in winter , but the reason why winter trade was then discharg'd , was because our vessels were small , and our sea-men ignorant , so that many perished by winter voyages . are explain'd in the acts , and , par. ja. . and by the act par. . ja. . as is also the last act of this parliament . vid. annot. on act par. ja. . supra . king james the third , parliament . this act is conform to iter : camer : cap. . and the last act ordain'd to be put to execution by this act is act par. ja. . this act is in desuetude , for it is now lawful to carry any kind of cattel out of the countrey , without hazard of confiscation . it is clear from this act , that the warden might then have granted licences for goods prohibited , but this the commissioners of the borders cannot now do . king iames the third , parliament . vid. act par. ja. . but it is to be observ'd from these words , in this act it shall be lawful to the kings highness to take the decision of any cause that comes before him , at his empleasance . likeas it was wont to be of before , that the king himself may be judge as he pleases ; but though the king did call an action to be judg'd before himself , that was depending before the lords ; yet his majesty was thereafter pleased , upon a representation of the inconveniences that would arise , to refer it back to them ; and some interpret this of the kings power , when he is sitting in his judicatures ; though i think the act will not bear that gloss : ●ut certain it is , that at first all masters were judges in their own families , and that kings themselves judg'd in their own kingdoms , as we see in the instance of solomon and others , vid. ch . . stat. david . where there is a decision of the kings insert amongst his statutes , and the doctors are of opinion , that princeps habens causam cum suo subdito potest ipse judicare si vult . peregr . de jure sisci tit . . num . . and this seems founded on l. & hoc tiberius . ff . de haer . instit . & l. proxime ff . de his qu● in test . delent . and though thereafter they did disburden themselves of that charge , by electing other judges , yet they did not debar themselves from that power ; and therefore we use to say , that all jurisdiction in scotland is cumulative and not privative ; but if the king take the cognition of any cause , he will try it according to the forms of that court , where it should have been decided ; and therefore if he be to try a criminal , the pannel will be allow'd to hear the witnesses depone against him , and the matter of fact will be judg'd by an assyze . if it be alledg'd , the meaning of this act is only that the king may try any action he pleases in his council , that is to say , his session , ( for of old , the session was call'd his council , and yet they are call'd his council and session ) to this it may be answered , this a●t appoints that causes should be first try'd by the judge ordinary , and if he either refuse to judge , or judge wrong , the council is to judge , not the cause , but him , and this induc'd some to urge , that the absence from the host could not be pursu'd before the council , though the punishment was restricted to an arbitrary punishment ; for which they brought these reasons : o. that this would confound the nature and limits of all the judicatures , which are the great foundations of our law , and which is contrary to this act. o. it is the great security of the people , that when they are try'd for crimes , they should be judg'd , not only by the learn'd judges , as to relevancy , but by their peers , whom they may judge again as to the probation . o. advocats are to be heard before the criminal court , but not before the council ▪ and the debate is to be there in writ , which obliges a judge to do justly , and the probation is to be led in presence of the pannel . o. before the council the crime may be refer'd to oath , which is not suitable to the criminal law , even where the punishment is arbitrary , except the party be by act of parliament , oblig'd to depone , as in the case of conventicles . o. there are no exculpations before the council , which are necessary in crimes . o. several acts of parliament appoint , that cases may be pursu'd before the criminal court , or council , when that is intended , and which were unnecessary , if all causes might naturally be pursu'd before either . it being likewise debated from this act , that a judge for giving an unjust decreet , might be pursu'd before the council in the first instance for oppression , the council did in january . find , that a sheriff , or other inferiour judge , could not be ●ursu'd before the council , until his decreet were first reduc'd before the judge ordinary , and that because the act par. ja. . appoints all actions to be first pursu'd before the judge ordinary , and the lords of the session are judges ordinary to reductions , and are there appointed to cognosce the wrongs done by inferiour judges ; and if this were sustain'd , the privy council should become the session , nor would any man be a sheriff , since he might every day be pursu'd before the council ; and whereas it was pretended , that the council were judges to oppression , and there might be great oppression committed by inferiour judges , sub sigurâ judicij . it was answered , that when the decreet was reduc'd , they might then be punish●d as oppressours , if there was no colour of justice for their decision , as the said act provided , sheriff of bamff contra arthur forbes . vid. obs. on the act par. ja. . and act par. ch. . we see that the granting reversions by the wodsetters , were but new inventions in anno ; and reversions were only personal , and did not oblige singular successors before that act , but by this act they affect singular successors , providing they be registrated . and though this act speak only of reversions ; yet elks to reversions , and obligations to grant reversions , are also real rights , if registrated . o. a reversion , though not registrated , is by our law valid against singular suc●●ssors , if it be incorporated , and contain'd in the body of the wodset it self , for then the singular successor must know the same , since it is incorporated in his own right . by this act personal rights are ordain'd to prescryve , if no diligence was us'd thereupon within fourty years , as heretable rights do prescrive by the act par. ja. . and though this act appoints only obligations to prescryve ; and that the word , obligation , does properly signifie only bonds and c●ntracts ; yet this act extends to testaments and decreets , july . . and this prescription is also extended to all personal actions for moveable goods , and so it did defend against an action for a kirk-bell , december . . for in effect all these are obligations . whereas the act says , except document be taken thereupon ; the meaning is , that diligence upon the writ , that is , to prescryve interrupts prescription ; and thus horning upon a bond , or citation upon an action interrupts , july . . m crae contra m cdonald : and payment made by the principal debitor , interrup●s as to the cautioners . it is observable , that prescription upon this act , runs not against minors , & contra non valentes agere , though neither of these are excepted in this act ; because these exceptions are warranted by the common law , and it may be alleadg'd , that it runs not against furious persons , since they are in all things compar'd to minors , albeit there is this difference , that a man may feign himself to be fu●ious , to the end prescription may not run against him : but yet prescription runs against things left , ad pios usus ; nor is the time of war and pestilence , when there is no judicature , nor session to be defalked , june . . prescriptions runs only against personal bonds , from the term of payment , and not from the date of the bond , because till then , the creditor cannot pursue , fe●ruary . . lutefoot contra glencorse . it is pretended that this act is in desuetude , and that magistrats may be continued for many years , or at least , that this act must be so interpreted , as to infer only a necessity of a new election yearly ; but not of yearly changing the persons elected ; for sometimes there are few to be choosed , as in small burghs , and in great burghs a forc'd alteration might prejudge the towns interest , because there are few worthy to be elected in these little towns , and the lords inclin'd to this gloss , in the town of edinburghs process against sir andrew ramsay . the burrow law here related to is , cap. . leg . burg . it appears by this and many other acts , and old evidents , that alderman , was the same of old with our provost , and they are still plac'd above baillies , it comes from the saxon word ealdor senior , thus we say for age , or for eeld . notars are now only chosen by the kings authority , and are examined by three lords of the session , and get their protocals marked at their admission by the clerk to the notars , who is one of the registers deput clerks : nor are the notars to be admitted by the king , to be examined by the bishops , as this act appoints ; and yet our style retains to this day , so much of the old form , that the notars express still in all the instruments , and other papers sign'd by them , that they are notars of such a diocie . by this act all woolen cloath is to be met by the rig , and not by the selvedge , but by the act par. ch. . linen cloath is ordain'd to be taken up by the selvedge , and not by the rig ; because woolen cloath stretches , when measur'd by the selvedge , but the selvedge of linen hinders it to stretch . though this act appoints only heretable sheriffs , or sheriffs in that part , that is to say , any ordinary person who executes the kings letters , to put their stamp to the execution ; yet by the act par. ja. . the execution of all letters must be stamped ; and though here , the not stamping makes the executions to be only null ; yet by that act , such as omit to stamp are punish'd by deprivation . vid. observ. on that act. oppression of the kings leiges in fairs , by taking more custom from them than is due , is by this act punish'd only arbitrarly , as to the offenders persons , and by a years suspension from their offices , and what custom is allow'd in such cases , is exprest , act . par. ja. . how far arbitrary punishments may be extended , is doubted . these who have fairs , had not power to exact toll , gl . in l. un . c. de nundinis , because fairs enrich the place , and toll wrongs commerce . though removing of tennents , and poinding their goods , be appointed by this act , to be three days after whitsunday or martinmass ; yet by the act par. q. mary . all warnings against tennents , are to be used fourty dayes before whitsunday only ; the old form of removing was , that the master did only intimate to the tennent that he was to remove , and broke a lance before the tennents door , as the symbol of breaking their tack ; and within . days ejected the tennent , as craig observes ; but now the tennent must be warned days before the term , and a decreet of removing must be had , whereupon he must be charged and denunced before he can be ejected ; and after that letters of ejection are directed to the sheriff . all murders committed by fore-thought fellony , that is to say , upon design , or per insidias ( called assassinium ) are denyed the protection of a sanctuary , or girth by this act ; but it appears that the crime of assassination was here excepted expresly , because it not being exprest in the very text of the canon law , there were several debates about it ; vid. covar . variar . resolut . cap. . for though it be ordinarily proved , per cap. . de homicidio si quis per industriam occederit proximum suum & per i●sidias ab altari meo avellet cum ut moriatur ; which text seems to be mean't by these words in this act ; for the which the law grants not the immunitie of the kirk ; and in which our law has followed the common opinion , that assassinators are denyed the priviledge ; yet cap. inter alia gives immunitie to all , except publicus latro & depopulator agrorum ; and that cap. de homicid . excepts only church-men , who have assassinated proditorie , and who indeed should have less immunitie than others ; but now the churches being a sanctuary or girth , is in desuetude , since poperie was abolished ; though the kings palaces are still sanctuaries in all nations , if princes be dwelling therein ; and yet i think they should not be sanctuaries if they dwell not there , except that allowance be granted them , either by express concession or prescription ; but these gave not protection to such as were notorious criminals , novel . justin. . cap. . verb. neque homicidis , neque adulteris , neque virginum raptoribus , delinquentibus terminorum custodies cautelam , sed etiam inde extrahes & supplicium iis inferes : non enim talia delinquentibus parcere convenit &c. and now i find not that any of the kings palaces are sanctuaries as to cryms with us , and in no case should they be a sanctuary against searching for , and apprehending malefactors ; as is clear , l. . ff . de fugitiv , div. marcus facultatem dedit ingrediendi tam caesaris quam senatorum praedia volentibus fugitivos inquerere . the conȝie-house pretends also to be a sanctuary with us . this priviledge of a sanctuary was only granted to holy , and consecrated places , and amongst protestants , no consecrations are in use , but yet according to the canon-law , churches even before consecration , are generally thought by lawyers to have that immunitie , vid. covar . variar . resolut . cap. . num . . and albeit this priviledge be properly a canonical priviledge , yet it cannot be denyed , but that the very churches of the gentiles had this priviledge , as is clear by t●●ucid . lib. . and was approved of by councils and fathers , who are cited cap. . quest. . praesertim cap. miror & cap. pen. & fin . de immunitate ecclesi●st . vid num . cap. . i●sua cap. . deuter. cap. . exod. cap. . but though by the canon law , . paces about the mother-church , and , about other churches had the same priviledge of immunitie ; albeit skeen speaks only of the . paces in his annotations , ad cap. . statut. alex. d. yet i read of no such priviledge to either the . or the . paces , nor to the palaces of bishops , nor to hospitals , vid. covar . ibid. before this act the tennent might have been poynded by the brief of distres , for all the personal debt owing by his master , but by the first part of this act , it is appointed , that the tennents shall be poynded only for as much as they owe their master which did hold only in poynding for moveable debts ; for in decreets of poynding the ground , the creditor might have poynded all he found upon the ground , and all invecta & illata , though the tennent owed not so much to the master ; yea , though he owed him nothing , as was found . july . and though the tennents term of payment were not come , if the term of payment of the annualrent were by-past ; and they who were so poynded , had their relief of the heretor , for whose debt they were poynded ; but now the lords extends this act so , as to defend tennents against poynding upon infertments of annualrent granted by the master , so that execution cannot passe against them for more than they owe their master , as to which only they can be personally lyable , and their goods or invecta & illata can b● only poynded ; but yet this was not properly an extension for debita fundi are the heretors or lords debt , since the heretor is personally , and the land is really lyable therefore . this act extends only to tennents of lands , but not to tennents of teinds , who cannot be poynded for their masters debt , . january . the second part of this statute prescribes the way of appryzing lands from debitors , and it is the original statute whereupon apprysings are founded in our law ; and it seems strange , that so material a part of our law should not have an entire statute , but should have been brought in at the close of another , and less important case . the form prescribed to compryzings , by this statute , is , that if the creditor cannot recover payment by poynding the moveables , the sheriff shall cause sell the land to the avail of the debt ; and from this act it is , that to this day the moveables must first be fought , and though the appryzing will be null for want of this solemnitie ; yet the offering to prove that there were as many moveables upon the lands as might pay the debt , will not reduce the compryzing , except these moveables were offered to the messenger , when he was executing the appryzing , and when the scheduls of appryzing were laid on upon the ground of the lands ; tantum creditur nuncio referenti se fecisse executionem in stabilibus quia non ●●t●bant bona mobilia debitoris quod non auditur volens probare contrarium ad annullandam executionem surd. concil . num . . lib. . this solemnitie descends from l. . § . de re jud. by which moveables were first to be poynded , and then immoveables failȝing of these , and was formerly introduc'd into this nation by the cap. . stat. d. rob. . by this act , it is appointed , that the lands be appryzed to the avail of the debt , this proportion was long observed , and much was referred to the arbitriment of the judge and inquest . balfour , who collects the oldest decisions , and such as were about the time of the institution of the colledge of justice , in his title of comprizings ▪ chap. . gives this for a rule , that ilk twenty shilling land of old extent , was comprized to twenty merks , july . james heren contra henrie livel , and ilk mark land of yearly profit was to be comprized to twenty merks of stock , which answered to five for the hundred , penult may . adam dickson contra john carhattel , penult . march , . but i have seen diverse old comprizing led about this time , at the instance of george lord seaton , and lady jean hepburn his mother , against some vassals , and wodsetters in the barony of west-niddery in linlithgow shire , where more then five of the hundred was allowed , as will appear by computation ; one of these comprizings dated . march , . bears . aikers , with . shilling scots per aiker to have been appryzed in payment of two hundred and fourty pounds of principal due to the said lord george ; and a second comprizing also led at his instance , dated . december , . bears , aikers , and two parts of an aiker of infield land to have been appryzed in payment of two hundred and fourty pounds of principal due to the said lord george ; and a 〈◊〉 compryzing also led at his instance , dated . december , . bears , . aikers , and two parts of an aiker of infield to have been apprized for payment of three hundred and fourty two pounds of principle , each aiker being valued to a merk of yearly rent ; a third appryzing at his instance , dated . feb. . bears , . aikers and a half to have been appryzed for . lib , of principal , ilk aiker being valued to . shil●ing of yearly rent , and a fourth comprizing , dated , th may , . bears , . aikers to have been apprized in payment of two hundred and twenty merks principal , and the rent of an aiker to be valued to a boll of victual , and the price of the boll to have been valued to . shilling scots yearly ; and this was by and attour the sheriffie , for which the like proportion of lands was appryzed , as the several appryzings bears ; and for the better making of the proportion , they also bear , that the sheriff and inquest came to the ground of the lands , and measured off the aikers , and set a constant price on the victual , but by one of the decisions cited by balfour , later than these ; it 's like that five per cent has been theirby appointed to have been the rule in time coming , as he sayes . when annualrents out of lands were appryzed , the inquest did never exceed per cent without a dispensation from the lords of session , or else they were pr●judg●d , sayes craig , pag. . and the compryzings were reduceable , but dispensations were easily granted ▪ and craig saye● , they were sought to free the inquest from hazard of perjury , but upon what ground it was , that the inquest scrupled more in compryzing of annualrents , than in compryzing of lands , where they allowed a rent answerable to per cent , i cannot conjecture , except for one or two reasons , . that annualrent is a thing odious , and unlawful by the opinion of many divines ▪ and therefore not to be stretched . . annualrents were free of publick burdens , to which lands were subject , and therefore a greater allowance might have been given of land-rent than annualrent . when life-rent rights , such as conjunct-fee , simple-liferent terces or curialitie were comprized , the estimation was made according to the age of the life-renter , or life-rentrix , when within . years , the estimation was years purchase , that is as much as the fruits and rents had yeelded for . years preceeding , or might yeeld in . years thereafter ; and when the life-renter exceeded . years of age , and was not of the age of . compleat four years purchase was the estimation ; and if years of age was exceeded , and the sixtieth not attained the estimation , was three years purchase ; and if the life-renter was weak , or sicklie , or that there was any other cause that might interrupt the liferent-right , the inquest did value , as the circumstances determined ; craig pag. . in fine . & dict . pag. . in princ . and when any servitude was apprized , the inquest did also value as they thought the servitude profitable , craig loco citato . this was the way of procedor in old comprizings , in making a proportion betwixt the debt , and the thing appryzed . the form and stile of decreets of compryzings of old was shortly thus ; the clerk of the compryzing , who was ordinarily the sheriffs clerk , did extend a writing upon parchment , containing all the particulars of the procedor , to wit , that the creditor having obtained a sentence before the sheriff , decerning his debitor to pay a certain sum , and there being no moveables to pay it , the sheriff came to the ground of the land with an inquest of most knowing persons within the shire selected for that effect , and there measured off some aikers for the money , and sheriffie corresponding , each aiker paying so much victual , and the victual being valued to a suitable rate , redeemable always by the debitor within the time contained in the act of parliament ; and which writing is seal'd with the seals of the judge , and of the inquest . o. though this statute appoints the sheriff to sell , yet upon deliverence of the lords of the session , they will appoint the compryzing to be led before messengers , or macers , whom they will make sheriffs in that part . it being debated , whether a compryzers marriage fell to the king , where the comprizer was payed within the legal , though he was not payed when the marriage fell , but was payed thereafter , and before the legal expired ; it was urged that it did fall , because the compryzer was vassal , and so as all casualties due by other vassals should fall , and that the king should rather have this casualty from comprizers , than from any vassals , because a compryzer could by a special statute , be entred by the king , though a singular successor . o. if the king were seeking this casualty by the debitors death , the comprizer would exclude him , by alledging that the debitor was denuded , and it were unjust , that by this means , the king should want his casualty from both . o. the king falls all other casualties by the compryzer , such as recognition , liferent escheat , and the compryzer by being entred , can do all deeds that other proprietars can do ; and therefore should be lyable in all other casualties , as they are . o. if this were not allow'd , the king might be still defrauded of this casualty , for the comprizer might still secure the debitor , and if his own marriage fell , he might thereafter cause redeem himself ; and whereas it was pretended , that a comprising is but a pignus praetorium & in pignori●us non transfertur dominium , and so the debitor being still proprietar , remain'd still vassal . to this it was replyed , that though a comprysing resemble pignus praetorium , yet it is truely an alienation , and this statute appoints the land to be sold to the creditor ; and by the whole tenor of comprisings , it is clear that it is a judicial vendition made under reversion , and so resembles more a legal wodset ; and therefore as in wodsets , the wodsetters marriage would fall , so ought the comprizers , and its being a legal vendition and alienation appears from this also , that it falls under recognition ; and recognition presupposes still alienationem dominij . the lords upon this debate ( which clears much the nature of comprisings ) prefer'd the king , for they found that the compriser being vassal , the marriage fell by his death , he having died before the comprysing was redeem'd , and therefore it may be doubted , whether the compriser will have his relief , for the damnage incur'd by this casualty from his debitor , before the lands can be redeem'd from him , since it fell by his fault , in not paying him ; nor is the debitor much prejudg'd , for if the lands had not been compris'd , this casualty might have fallen by his own death , and the inconveniency urg'd from the multitude of marriages , that would fall by the great number of comprizers , is of no w●ight , since if a man had sold his land , and divided it amongst his creditors , all their marriages had as well fallen , in that case , as in this . o. whereas by this act , the legal is to extend to seven years only , so that if there be one shilling resting after seven years , the comprysing expires ; yet by the act par. ch. . anno . this legal is extended to ten years , but both the seven and ten are to be compted from the date of the decreet of apprising , and not from the date of the allowance , by our practick . o. though superiours be not oblig'd to receive singular successors , yet they are bound to receive comprizers upon payment of a years dewty of the lands comprised , and this singularity is introduc'd in favours of commerce , and of poor debitors , but to ballance this speciality , the superiour is allow'd to retain the land comprised to himself , upon payment of the sums comprised for , because he is also proprietar of the lands , having dominium directum , as the vassal who is debitor has dominium utile , vid. . march. . black contra pitmedine . but it was lately found , that the superiour could not redeem after seven or ten years , no more than the vassal , for though the legal , as to the superiour , be not limited , yet he comes but in place of the vassal , and so ought to have no more priviledge , and this general must be restricted by the other parts of the act. o. though the superiour be bound to receive the comprisers , and that without producing their authors right , because it is not presumable that their debitors , from whom they comprised , will produce their rights to them ; yet where adjudications are led , for compleating dispositions , or other rights , the superiour is not oblig'd to receive such adjudgers , until they instruct the last vassals right ; for such adjudgers as these are not ordain'd by the act of parliament to be received , june . . m cneil contra m cdougal . but it may be doubted , what an adjudger , who has done ulti●at diligence , to recover his debitors writs , shall do , if he cannot obtain them , it being very hard , that he should ly out of his right , because of the contumacy of the person , who is oblig'd to compleat the right . vid. obs . on the act par. sess. ch. . though it is said here , that justice-airs need not be continu'd ; yet justice-courts are declar'd peremptor , so that if actions before them be not call'd , the day to which the citation is given , the citation is null , & perit instantiâ . act . par. . ja. . vid. observ. on that act. by this act it is declar'd , that the rolls and registers be put in books , and have the same strength that the rolls had : for understanding which , it 's fit to know , that both in parliament and exchequer , there were no registers but rolls . and by this act the rolls are ordain'd to be turn'd into books . and these books are declar'd to be as authentick as their originals , and the clerk is yet design'd clerk of the council register and rolls . this is the only act , by which counterfeiters of money are punish'd by death ; and yet this act properly stricks against the counterfeiters and coyners of copper-money only , which in our law is call'd black money . it has been doubted , whether the officers of the mint could coyn copper-money without express permission ; but it was lately found they could not , because coyning is ex sua natura inter regalia . o. there have been several warrands expresly granted to the saids officers themselves , for coyning copper-money , and determining the quantity to be coyn'd , and the rates to be follow'd , which had been needless , if this could have been done without a warrand . o. there is so great profit to the coyners , and so great loss to the people , by coyning copper and black money , that it was necessary the coyning should have been determin'd . o. it had been unnecessary and absurd , to have discharg'd the counterfiting and currency of black-money by this act , if it had been lawful to have coin'd without a warrand ; and whereas it was alleadg'd that black money was coin'd in england without warrand ; to this it was answer'd , that such farthings &c. past only in the place where they were coin'd in england , but what passes in one place of scotland , passes through all . vid. annot. on act par. ja. . supra . king james the third , parliament . the design of this act is , to shew that in reductions of decreets of inferiour courts before the parliament , the defender is not allow'd to propone defences , that were competent and omitted in the first instance ; and yet in reductions of decreets of inferiour courts , before the session , alleadgances , though competent and omitted at the time of the first decreet , are receivable by the lords , especially if the decreets be in absence nota , that dilators might have been then propon'd , separatim ; but now after a dilator is repell'd , all the other dilators must be propon'd together . nota o. it is clear by this act , that decreets of inferiour courts were reduc'd before the parliament , but these lords were then not what our session is now ; the session being then a committee of parliament , as is also clear by this act. nota o. that brieves of mort-ancestrie ( which are now call'd brieves for serving of heirs , were then led and expede in justice-airs , though it was still by an inquest , as this act bears ; and if then difficulties did occur in serving of heirs , it is clear that superiour courts might give their opinion upon these , though they cannot serve an heir ; and thus two several persons having rais'd brieves for serving themselves heirs to captain ross , they were advocated from the macers ; and it was debated before the lords , what probation was sufficient to exclude the king as ultimus hares , albeit it was alleadg'd , that this was only proper to be debated before the inquest , and yet though the lords may determine , how a thing may be proven , & ipsum modum probandi , as in that case where the debate did run , whether the being habit and repute cousins , was sufficient in agnatione antiquâ ; yet the lords in the case forrester contra the heirs of the laird of wrights-houses , refused to consider the probation it self , and the objections against the writs produc'd , but remitted the same to the inquest ; though it was alleadg'd , that it being objected here , that the writs produc'd for probation were vitiated , the lords could only judge this as being species falsi ; but withal , the lords declared , that if the inquest desired to know whether the papers were vitiated , they would give them their opinion therein . the lords of the session themselves have been sometimes the inquest , as in serving king charles the first , heir to queen ann his mother , and king charles the second , to the duke of lenox ; though it was alleadg'd that this was inconvenient , because no other judge could reduce their verdict ; but certainly , either the parliament might have reduc'd it , and found them guilty of error , or the lords of the session might have reduc'd their own verdict , upon new probation ; for in this case they proceeded , not as supream judges , but as members of inquest . the parliament have been sometimes the inquest , as in serving the earl of mar heir to his mother . by this act , the party put to the horn for slaughter , is to find caution before he be relax'd , not only to compear to underly the law , but to pay twenty pounds for his escheat goods , and this is to this day exprest in all relaxations . vid. observ . on act par. ja. . by this , and by the first act of this parliament , it is clear , that that parliament did delegat some of their number , not only in some particular cases , but with a general power to represent them in all things which seems hard ; for that were to make and create a new parliament : but here their power was delegated only as to debatable cases , for these lords were then in place of the session ; and i have heard it debated , if the council could delegat their power , to any of their number , as to all things , for that were to make a new council ; and since the king impower'd only nine to be a quorum , they might not impower a fewer number ; nor were it fit for the people , to have the supream power committed to so few , nec potest delegatus delegare : nor can the justices , nor commissioners for teinds , make such committees , though they are as supream as the council . vid. observ. on the last act par. ja. . by this act it seems that the council may reduce the verdicts of inquests and sentences of the justices , though the regular way of questioning assizers , who assoilȝe , be by a summons of error before the justices , and a new inquest of fourty five persons ; and de facto , the council do cancel such verdicts and sentences , before themselves , as they did in george grahames case ; and ordinarly they mitigat the sentences of the justices . nota , the books of regiam majestatem , are by this act called his majesties laws , and the place here related to , is lib. . r.m. cap. . because the riches of this realm , consists chiefly in our fishing , therefore bushes are ordain'd to be made , since these are able to ride out in storms , which lesser vessels cannot do , and it is best fishing when the waters are troubled ; this is renew'd by the act parliament ja. . though by this act , he who tines his action is to pay fourty shilling of expences ; yet the modification is left arbitrary to the respective judges , conform to the civil law , which appoints condemnationem in expensas & litium damna contra temere litigantes inst. hic . depen . temerè litigantium § . . and by the act par. ja. . the defender pays twelve pennies out of every pound to the lords ; and the defenders expences at the lords modification . king iames the third , parliament . by the civil law , he who is to succeed as heir , is still to be tutor of law ; but because this could not well be , where the immediat heir was himself under twenty five yea●s ; and therefore by this it is appointed , that the age of a tutor of law , or tutor legitimus , shall be the age of twenty five years , though the age of majority be twenty one , because it requires greater experience to govern other mens affairs than our own ; and if the immediat heir , be not of that age , the next heir who has attain'd to that age , is to be tutor . and by the civil law , no man could be a tutor , even by a testament , till he attain'd to that age , inst. qui testament . tutor § . by this act also , the nearest agnat , that is to say , the nearest of the fathers side is to be tutor , which was conform to the old civil law ; but justinian ; by the nov. . did take away this difference betwixt agnats and cognats , both as to succession , and tutories , and we in both follow the old law , and not this novel . by this act , the laws called leges burgorum , bound in with reg. maj. are declard a part of our law , and the chapter particularly related to is cap. . though this act appoints only the heirs of barons , gentlemen , and free-holders to have heirship-moveables . yet by our law , all prelats , barons and burgesses may have heirs , and these heirs have right to the best of every thing that belong'd to their predecessor , as their heirship-moveable , conform to a roll , expressing what is heirship-moveable , a copy of which roll may be had from the clerk of edinburgh ; the reason why moveable-heirship was allowed only to prelats , barons , and burgesses , seems to be , either because these being the only three states of parliament , they only ought to be allow'd such considerable plenishing , as heirship-moveables ; or else because in those dayes , none but persons of these qualities , could have such moveables ; under the word prelats are comprehended all benefic'd persons . by burgesses are understood all trades-men , and others traffecking , or working within burghs , but not honorary burgesses ; by barons are understood , all who are infest in lands , though not erected in a barony , and that maxime , semel baro , semper baro , is to be interpreted presumptive , so that he who is infest in lands , is presum'd to die infest : but if he was devested before his death , either by comprysing , resignation , or otherwise , he cannot be counted a baron , and have an heir , january . . straton contra chirnside . these words ( of the best of ilk thing ) must be interpreted , de corporibus , but not de quantitatibus & rebus ●ungibilibus quae pondere numero , vel mensurâ constant , as money , cloath , &c. and so the stool of a salt-pan , which was out of use , was accounted but iron , and fell not under moveable-heirship , had. . reid contra thomson . item , where there are a dozen of spoons , or moe , the heir shall have a dozen , if they be fewer , he gets but one spoon , dict. cap. . l. burg . which custom hath extended , not only to other things that go by dozens , but likewise so ; as these things that go by pairs , and are of one use , must belong to the heir ; and thus the heirship of oxen was found to be a yoke , july . . black contra kincaid . dubitatur , o. if the appearand heir of a man , who has only a disposition , but is not infest , may have moveable heirship . dubitatur , o. if the appearand heir of him who has an assignation to a reversion of lands , may have moveable heirship , since assignations to reversions , are real rights . by this act it is declar'd , that the act ordaining personal obligations , to prescrive in fourty years , was to be interpreted so , as to extend to all obligations , prior to that act , which seems hard ; for these who had these obligations , were in bona fide , not to do diligence ; and therefore , some time should have been allow'd to do diligence , as thirteen years were allow'd in the act of prescription . and therefore it would seem , that the act par. ja. . ordaining personal obligations to expire in fourty years , rather declares what was law before , and that such prescriptions have been formerly allow'd hereupon , the common law , or some old act ; for this statute likewise says , the time of the making of the said acts , so that it appears there have been other acts besides that one , to which this relates . retours to this day express the old and new extent ; by the old extent is meant , that to which the whole lands of scotland were valu'd , by the first general valuation . and by the new extent is understood the second valuation , which was long after the former : the old extent is said in all retours to be tempore pacis ; and the new tempore guerrae , or belli , the reason of which , some think to be , that the new extent being made in time of war , there was a necessity to highten the valuation , for maintaining the war ; these casualties being the greatest part of the kings revenue ; whereas the old extent is very inconsiderable , being in time of peace , when there was no necessity for any addition to the revenue , and when the value of the money was very mean. by this act , four of the old council are to sit with the new council ; but this act is now innovated by the posterior different constitutions of privat burghs , edinburgh , and many other burghs having far more , whilst others have but the numbers here prescrived , or fewer . and as to edinburgh , the manner of choosing the magistrates and counc●l thereof , is regulated by ●king iames the sixth , his decreet arbitral , commonly call'd the sett . vid. ja. . par. act . the superiour not entering to his superiority , to the effect he may enter , his vassal tines his superiority for his lifetime ; and though this act determines not for whose lifetime the superiority is to be lost ; yet by an act of sederunt anno . it is ordain'd that the superior tines his superiority for his own lifetime , and not for the vassals lifetime , and declares this to be the meaning of the act. by this act it is clear , that stealing of dogs , hauks , and the like , is not to be punish'd as theft , but only by a fine or penalty of ten pounds , and in effect this is not contrectatio rei alienae lucri faciendi causa ; these beasts being rather useful for sport than gain , but it may be doubted , if a fowler , who makes it his trade , & ita lucrum sacit , may not be punish'd as a thief , for stealing another poor fowlers dog , who lives by that trade , and whose dog is his pleugh , and especially since such dogs are now bought and sold. this act containing the pains of such as break dovecots , cunninghares , &c. is alter'd , and the penalty hightned by subsequent acts of parliament , viz. by the act par. ja. . and by the act par. ja. . but these acts are without prejudice of putting all former acts to execution , made against the foresaid crimes . this penal statute against ferriers , not making bridges , is in desuetude , as are the prices here exprest ▪ vid. act . par. ja. . supra , and act par. ja. . king james the third , parliament . it would seem by this act , that all ordinary actions must be first pursu'd before inferiour courts , which is likewise appointed by the . act par. ja. . but now any action may be pursu'd before the session or parliament , in the first instance . but there can no action be rais'd before the parliament without special warrand first past in the articles , for bringing the same before the parliament . vid. not . on act pa. ja. . act pa. ja. . and act pa. ja. . supra . by this act which is in present observance , such assyzers as assoilȝie a pannel unjustly , are to be pursu'd for error ; but such as condemn him unjustly are not , the reason whereof seems to be , that the law-givers presum'd , that no assyzer would condemn unjustly , but that probably they might shew favour in absolving ; and if assyzers were punish'd for condemning , they would never condemn ▪ and since they get no sallaries , they should not be severely us'd , but though we have no law allowing assyzes of error , against such as condemn ; yet it may be alleadg'd that assyzers may be pursu'd if they condemn a man without any shadow of probation . o. this act appoints that the assyzers who are to judge of the error , be noble persons ; for these that are to judge of the error of others , ought to be more judicious than they ; but by a statut sess. . c. . it is declar'd , that by noble persons is meant only landed-gentlemen . o. the error must be infer'd upon principles and grounds , which were represented to the assyze , at the time of the verdict , though the retour may be reduc'd upon other grounds than such as was than represented , as is clear by the act par. ja. . it is also appointed by this act , that though the verdict be reduc'd , yet the person assoilȝed unjustly , cannot thereafter be punish'd , there being jus quaesitum to him by the verdict , and upon the same principle ; by the act par. ja. . if any speak to the assize after they are inclos'd , the verdict is declar'd null , but the pannel being thereby acquit , cannot thereafter be accus'd . o. the place of reg. maj. cited , but not exprest in this act is , lib. . c. . where an assize of error is said to consist of twenty four leil and lawful men , though they are call'd here twenty five noble persons . o. it may be doubted from this act , whether though the pannel be not assoilȝed ; yet it any , or moe assizers who voted to assoilȝe , notwithstanding of the clear evidences to the contrary , may not be pursu'd as temere jurantes super assisam , since he is guilty of perjury , and perjury is infer'd from an unjust oath , and not from the effect ; and though it may be pretended , that he follow'd his privat knowledge , yet that cannot defend , since this may be urg'd , for all of them , if all should assoilȝe ; nor could any thing deter each particular assyzer more , than that each may be found guilty , whereas if they thought that they would not be lyable , except the major part assoilȝed , they would adventure upon assoilȝing , as an uncertain event : but yet the justices inclin'd not to this opinion , since no error was ever pursu'd , except where a person guilty was freed , this being the vindicta publica , allow'd in that case . it is likewise observable from this act , that the assyzers committing wilful error , shall first be called before the king and his council , who shall give them a great assyze , and therefore his majesties advocat having pursued an assyze of error in july , . he first called the persons who had committed the error before the privy council , and asked at every man judicially , whether he owned his verdict , or not , and these that owned not the verdict , were not insisted against criminally , but when this cause came to be called before the justices . it was alleadged for them , o. that the verdict bearing only , that the major part had assoilȝed & non constabat , who had assoilȝed , and who condemned , which should hold much more after the act of regulations , in anno by which it is appointed that the assyzers should mark in their verdict , who assoilȝed or condemned , to the end it might be known who should be pursued for error , but this was repelled , because the king being prejudged by the verdict , their giving in the verdict made all criminal , and such as were free should prove their innocence , for else it should be impossible for the king to be able otherwise to prove the guilt , which should hold much more now , because the assyzers had , by the regulations , an easie remedie for preventing this , & sibi imputent , who did not mark who assoilzied , and who condemned ; and though these regulations introduced that , as a further remedie for clearing this matter , yet that was not necessary ; for there were assyzes of error , before assyzers were ordained to be so marked . o. it was alleadged , that this was not wilfull , nor by partial means , which partiality behoved necessarily to be proven by the words of the act , but this was repelled , because the error being clear , the error behoved necessarily to be wilfull , and by partial means , nor was it possible to prove these occult qualities otherwise than ab ef●●ctu . o. it was alleadged , that there being fourscore upon the pannel , the difficultie of differencing the probation might excuse from wilfull error , but this was repelled , because the probation adduced was so clear . o. by this act , assyzes of error are only to be allowed , where the persons indited are shown before the assize , in the assyze of error , but so it is , the persons assoilȝed by the former assyze were forfaulted in absence , and were neither then nor now shown to the assyze ; and the reason of this speciality , is , because , if the persons assoilȝed were present they might prove their own innocencie , and so clear likewise these who assoilȝed them , but this was repelled , because , by these words shown before the assyze is only meaned , that their designations and not their persons should be shown to the assyze of error , for else there could be no assyze of error in forfaulters in absence , and though the persons were present , they would not be admitted hoc ordine , to clear their own innocence , and the assyzers should have assoilȝed , or condemned according to the probation then led . for explication of this act , vid : not one act . par. . ja. . this act is explained in the observ. on the . act par. ja. . by this act , deeds done , and rights made by furious persons , or idiots are reduceable , not only from the date of the brievs , but from the time that these persons were found to be idiots or furious ; for the verdict of the inquests upon such brievs is declaratory , and finds that these persons were such from such a time . observ , that albeit , from the stile of the brieve , of old a furious , or idiots deed could only be reduced from the date of the brieve , and that by this act , such deeds be only declared to be reduceable from the time that the inquest found , that the granter was furious or idiot , yet the granter himself being convalesced , may reduce deeds done by himself , though there was neither brievs , nor inquest , finding him furious , the furie being clearl● proven , there being no reason that the negligence of ag●ats or friends in not raising brievs should prejudge the furious person , . feb. . and which seems yet harder , the heir of the furious person will be allow'd to reduce , though there was no brieve nor inquest in his own lifetime ; and it is very hard to know his condition after death , july . . for sententia aut decretum judicis non facit furiosum sed declarat ; but there is this difference , that if the furious person was declar'd by an inquest that verdict proves per se , as to all deeds done after ; but if this idiotry or furiosity , was not found by an inquest , it must be prov'n by witnesses , and when the furious person is re-convalesc'd , deeds done by him after that are valid , though there be no declarator , and if there be only lucid intervals , the deed is presum'd to have been done in the fury , or lucid interval , according as the deed itself is reasonable or unreasonable ; and for clearing of this , the lords in a case , steuart contra steuart , ordain'd witnesses to be led before answer , to clear what condition the granter was in , at the subscriving of the deed contraverted , and it would seem that the presumption lyes for its being done during the ●ury , and not during the lucid interval , if the granter was found furious by an inquest ; b●cause this act of parliament sayes , that frae it may be known by the inquest , that the persons are fools or furious , all alienations made by them , shall be null . o●serv . o. this act of parliament stricks only against natural fools and idiots ; and therefore where men become idiots , by doting or old age , though they cannot recover , or by sickness , where they may recover . it was thought that they could not be found idiots by an inquest ; and indeed this were very dangerous , for many who have been very famous and great men , might have been thus affronted in their old age or sickness , or at least the exchequer will not grant tutories dative to the nearest agnats , until their condition be first try'd by an inquest , though the cravers offer to prove the same by witnesses , beyond all exception ; and thus it seems , that though deeds done by idiots or furious persons may be declar'd null by way of action ; yet themselves cannot be declar'd idiots otherwise , than by an inquest . observ. o. that though all deeds done by furious persons , are here declar'd null ; yet sometimes they may oblige themselves validly is absents , and pupils may be oblig'd , ● . furiosus ff ▪ de act & oblig . & l. si a furioso ff . si cert . pet. vid. act par. ja. . observ. o. from these words , and though it be known by the inquest , that the inquest may find a person idiot or furious upon their proper knowledge , for they are both judges and witnesses by our law. vid. observ . on the act par. ja. . by the act , money and gold being cry'd up , that is to say , the value of coyns being rais'd by the parliament here , which is now usually done by the council ( both as to forraign coyns and our own ) the parliament did by the act , ordain that all debts should be paid with sick money , and of the same price as the money had course before this proclamation and act , which was only to take place , where the terms of payment were by-past before the act , which makes me think , that the reason of the act was , because the parliament thought it just , that no mans breach of obligation & mora , should be advantageous to him ; and if the creditor had got his money in specie , he might have made other use of it , by carrying it abroad , &c. but yet now all debts may be paid , according to the course that money has the time of the payment , for as the money may be cry'd up , so it may be cry'd down , and to bring both to an equality , the debitor and creditor run an equal hazard ; for whatever difference may be , as to the taxing the price of other things , si aestimatio rei creditae creverit aut decreverit : yet in money perpetua est aestimatio l. . ff . de contra hend . empt. for clearing of which question , vid. vin. quest. select . lib. . cap. . and so this act is in desuetude , vid. act ja. par. . but though debts upon privat obligations , were to be paid with money at the same avail that the money was at the time of the contract , and not the time of the payment ; yet the kings taxations and publick dues , were by the kings own concession , to be paid according to the value of the money at the time of the payment , and are not to be exacted in money , according as the money was worth before it was cry'd up , vid. last act par. ja. . it has been much doubted , whether it was true policie to cry up money ; for though this seems to be an encouragement to forraigners , to export our commodity , of which we have too much , and to import money , of which we have too little ; yet it is urg'd on the other hand , that in crying up money , we do but undervalue our own commoditie , and our own land , and raise the value of money , which is the commodity of a forraign countrey , such as spain and other places who have mines ; as for instance , if we have use for carrying our money abroad , forraigners will only give us commodities conform to the intrinsick value , for they will not consider our raising of it , and so he who got the money , which was so rais'● , is cheated in as much as the money is rais'd above the intrinsick value . o. as to our own commodities at home , either they are rais'd to the same proportion with the money , and then forraign merchants will not bring in money for our commoditie , because they can gain nothing by bringing it in , and so we lose the design of raising our money , or else the commodities are not rais'd in value to the money , and so the forraign merchant does only cheat us ; as for instance , if our money be rais'd a tenth part , the forraign merchant gives us only nine pieces for ten . o. this raises the exchange to our great loss ; for he who draws the bills upon london or paris , considering that our ten pieces are but nine , there he will add the value of a tenth piece to the exchange . o. if forraign princes find we have advantage by this raising of our money , they will either raise their own to the same proportion ; and then we shall have no gain , or to a higher , and then we shall have loss ; and at best , di●ferent raisings of money will occasion but great variation , and uncertainty in coyns . courts of guerra here forbidden , seem to have been courts holden upon neighbour-feid and riots , and skeen founds them upon § ult . tit . . de pac . tenend . lib. . de feud . si ministeriales alicujus domini inter se guerram habuerint , comes sive judex in cujus regimine eam fecerint per leges & judicia ex ratione prosequatur . king iames the third , parliament . this act is ratifi'd by the act par. ja. . vid. observ. on that act. king james the third , parl. . though all men be allow'd to bring in victual from forraign countries by this act , yet the importation of victual from ireland is prohibited by act sess. par. . ch. . the act concerning cruives , is explain'd in the act par. ja. . which is the act here related to . this act appointed the taking more than just ●raught , to be a point of dittay , because it was oppression , and irregular exaction , and this is still taken up as dittay in circuit courts ; yet the council does also punish it , and i think , the master of the ground where the ferry is , may punish such irregular exactions . the unlaw of such as burn muires , is by this act five pounds , which is renew'd act par. ja. . but by the act par. ja. . the punishment is five pounds for the first time , ten for the second , and twenty for the third time , and these penalties are ratifi'd act par. ja. . the using other barrels than the hamburg measure , is made point of dittay , because other barrels were lookt on as false measure ; but our barrel now is , ten gallons for salmond , and eight and an half for herring . the act here related to , is act par. ja. . where this act is explain'd . pvrprusion is the usurping and appropriating our superiours lands or high-wayes and purpresture is much now in desuetude . the ordinary remedy now , being actions of molestation , or declarators of property ; but purpr●sion is not absolutely in desuetude : for by the act par ja. . it is ordain'd that such as till the kings parks , or commonties , shall be lyable in purprusion , and punish'd according to the old ●aws , the same being try'd , either by way of molestation , or before the lords of session ; and the old punishment was an arbitrary punishment , and the loss of his lands , which he held of the king , and the reason why that act did appoint the tryal to be by molestation before the lords was , because of old it was only try'd by an assize before the justices . vid. lib. . cap. . num . . & lib. . cap. . r. m. it is doubted , whether vassals of regalities building upon the streets of burghs of regalitie , may be punish'd for purpresture , or whether the building a foot or two furder than formerly , even in burghs royal , would infer that punishment . from these words of the act , that nae vassal , nor sub-vassal , or other tennent under the baron , has power or jurisdiction to hold a court. it is fit to observe , that this holds not only in purprusion , though that be the case mention'd in this act ; but generally , vassals nor sub-vassals cannot hold courts , except they be infest , cum curiis ; and even then they have only power to hold courts for payment of their own rents , or such other things as necessarly follow the labouring of land , except the vassal be a baron , in which case he has power to j●dge ryots , and unlaw for bloodwits , as sheriffs do . this act is not ●o be found in the black impression . there is an act omitted by skeen , which is the last in the black impression , whereby the parliament delegats their full parliamentary power to some of their number , for hearing some ambaci●itors , and deciding some causes , licet delegatus non potest delegare , and such delegations of the supream power may be dangerous . king james the third , parliament . though this act appoints barons and lords , who led their own men or vassals at that time to the host , to be lyable for the skaith they do , in coming to the kings host ; yet this act is now upon the parity of reason , extended to all officers , who are now come in place of these . it may be alleadg'd from this act , that it is not lawful for such as go to the kings host to take free quarter , or meat and drink gratis , which we call free-quarter , which may be further clear from cap. . stat. . rob. . where these that come to the host , are ordain'd to be serv'd for their money , and that they take nothing , but at the sight of the baillies , and others there mention'd , under the pain of being punish'd as robbers : but it is still doubted , whether the countrey may be put to be the first advancers , when the militia is rais'd in such haste , that these who are remote , cannot provide present money , and the countrey into which they are sent , have by their irregularities occasion'd their coming , it being unjust that innocent shires who send in their militia , should be put to expences , in levying and entertaining men to repress the irregularities of others . it is observable from this act , that it is not the parliament but the king , without mentioning consent of parliament , who commands the proprietars of castles to furnish them for defence against the enemy , with victual and artillery , and the reason of this is , because there was no fort nor strength , or turris pinnata , call'd tower-houses , allow'd to be build in scotland , without an express warrand under the kings own hand , this being one of the effects o● his prerogative , in the sole disposing , and making of peace and war ; and since arms cannot be born without his licence , much less should strengths be built : and from these grounds , and the practise of other nations , it was contended lately , that the king may garrison any mans house , when he and his council find the having a garrison in that place , for maintaining the peace of the countrey is necessary ; but craig is of opinion , that it is treason , or at least purpresture , to deny the king the use of our castles , or towers in such cases , jure anglorum turres omnes , quia ad defensionem , s●u munitionem , regni extructae tantum praesumuntur , ad regem pertinent , ad quem & regni defensio ; quod si idem & jure nostro observari quis dicat , non , ut opinor , a●errabit , cur enim qui turrim sive fortal●●tium suum regi denegat , crimen laesae majestatis incurrit , magis quam si equum , aut aedes , aut rem aliam , nulla alia ratio probabilis reddi potest , nisi quod negatio haec ex jure feudali , regem & dominum videtur privare jure fui dominij , & species quaedam purpresturae est , & alias res nostras principi poscenti possumus negare sine perduellionis periculo . which agrees with the opinion of forraign lawyers who treat of the power of kings in general , fritz . de jur . praesidij , penes quem monarchia , is urbes , arces occupare potest , ●isque pro tuenda securitate publica praesidia imponere potest . but in this as in all such cases , the prerogative should not be made use of , except in cases of extream necessity , and even then the heretor is to be repaid , if he must hire another house , as at sea in storms , all the parties concern'd in the ship are to contribute for repairing his loss , who for lightning and securing his ship , is forc'd to throw his goods over-board . if a woman who has a conjunct-fee , alienat it during her marriage , the alienation is 〈◊〉 , except she ratifie the same judicially outwith the presence of her husband upon oath , never to revock it , and then the alienation is valid , but though this act sustains a judicial instrument under the seal of the judge , as a sufficient probation ; yet now something must be produc'd under her own hand , or by two notars , and the lords would not sustain the act of renunciation , though under the hand of both judge and clerk , february . . gordon contra maxvel . the reason of which decision i conceive to be not because this act to which the decision is contrary , is only set down as a memorandum , and relates a decision of parliament , without statuting any thing thereupon , for confirming the same , for the meer setting down this decision among the acts of parliament , gives it the strength of an act ; but because the time of that act ▪ one notar was sufficient , but now , either a woman must subscrive her self , or two notars for her . observ. o. that decisions of parliament bind as laws , though they be not set down as general laws , for the inserting them amongst laws , make them equal to laws . some times decisions by the king , are inserted amongst the acts of parliament , as cap. david . observ. o. that though an oath is sufficient to confirm the renunciation of a joynture stante matrimonio ; yet it is not sufficient to confirm a personal obligation , granted by a woman , stante matrimonio , as is decided , november . sinclar contra richardson and his spouse ; the reason of which disparity seems to be , that in conjunct-fees , she is domina , and the obligation is not to take effect till after her husbands death : but in other obligations , where the design is to bind her self , the obligation is invalid , because she being sub potestate mariti , cannot oblige her self ; and upon the same ground it is , that dispositions granted by heretrixes stante matrimonio , will be sustained , they having therein plenum dominium , as to the property ; and even personal obligations for sums of money granted by a woman , who was an appearand heir , there being a back-bond granted to her , declaring that she should not be thereby personally oblig'd , was sustain'd to be the foundation of a comprizing ; for as she might have dispon'd her own heretage expresly , so she might have lawfully granted an obligation , whereby the same might have been adjudg'd , january . . pringle and bruce contra paterson . vid. stockman . decis . . by the canon law , laicks have no power of choising or electing ●hurch men , c. quisquis . c , massana . . de elect . & elect potest . so that the priviledge here granted , seems contrary to the canon law ; but as the king of france had power by the concordata with pope leo th , to nominat bishops and abbots ; so our king had the nomination of bishops and abbots , and the provision of them belong'd to the pope , as is clear by the act par. ja. . which though this act says , did belong to our kings by the priviledge of their crown ( for prerogative was then call'd priviledge ) yet it is con●e●● , that they deriv'd this priviledge from the pope , act par. ja. . for understanding this act , it is necess●ry to know , that if the kings who had these priviledges , did not nominat within six moneths , the pope might confer the benefice as he pleas'd : and if the king did nominat an unfit person , the pope might refuse him ; and the king was oblig'd to n●me another within three moneths , vid. past . de benefi cap. . but our kings not acknowledging this power of precluding , it is statute by this act , that our kings may present at all times , till the prelate named by the pope show his bulls of provision to the king and chapter , and though the king should admit to the temporality a prelate before showing of his bulls , it will not be prejudicial to the kings priviledge of presentation , that is to say , that though the king had admitted a person , whom the pope had rejected as unfit , he might yet of new present , and the pope should not have right , jure devoluto . for understanding this act , it is fit to know , that regulariter beneficia vacatura , could not be purchast ; and yet the pope had reserv'd a power to confer , even these ex plenitudi●e potestatis , cap. proposuit de confer . praebend . . decret . but this act i● made to annul all such provisions to benefices , not yet vacand . king iames the third , parliament . this act giving the warden power to continue his courts , shews that the continuance of courts , is not of its own nature lawful ; and therefore no judge may continue his courts , except he have an express warrand for it , since such as are cited , may be thus prejudg'd by delays : but since the king is the fountain of jurisdiction , it is thought the king may grant such warrands , tho there be some cases wherein the king has restricted himself by express statute , as in criminal courts , which are declar'd to be peremptor by the act par. ja. . where it is observable , that these courts are declar'd not to be con●inuable by the kings spec●●l will and direction , to shew that continuations of courts depended upon him ; and generally it is by the will of the letters , that it is known what actions abide continuation or not ; and though the wardens courts be justice-courts , yet it is thought they may be continued , notwithstanding of that posterior act. by this act the breakers of the king or wardens safe conduct , are punishable by death , which is conform to the civil law , l. . ff . ad leg. jul. majest . and to the practice of other nations , christin . tit . . art. . what difference there is inter pacem , securitatem , salvagardiam & salvum conductum . vid. afflict . lib. . tit . . though the selling or buying of corrupt wine , after it is found to be such , be declar'd punishable by death ; yet the selling corrupt wine willingly , even before that , is punishable : and though selling corrupt wine in the general be punishable ; yet this must be restricted to the case of knowledge , for he who sells or buys without knowing of it to be corrupt , or to have been found so , is not punishable by death . king james the third , parl. . of old every heretor brought his own men to weapon-showing , and to the kings host , as is clear by the act par. ja. . and all these were commanded by the sheriffs , lords of regalities , and the kings other officers , and were call'd together by letters patent under the privy seal , directed to these officers , as is clear by this act ; but now the militia is commanded by colonels , and chosen by the king , and are call'd together by proclamation , and letters from the council , subscriv'd only by the chancellor or president of the council . from this and other old writs , it is clear , that the privy seal was then the seal of the privy council , but now they have a seal peculiar to themselves , which is call'd the signet of the privy council . vid. annot. on act par. ja. . the kings rents of old were govern'd by the kings master-houshold and compt-roller , and the council , but now by the exchequer , and the master-houshold has no interest in them , ratione officij ; that office belonging heretably to the earl of argile , is now extinct by his fore●alture , but the office of compt-roller is engrossed in the thesaurers office : by this act , such as detain the kings rents , are to be distrainȝied , that is to say , pursu'd in the ordinary way , viz. by poynding the ground for their reddendo , by hornings upon their tacks ; but though the uplifting the kings feu-duties was design'd once to have been by quartering , yet this was thereafter found illegal ; nor could the excise be so lifted , if that way were not warranted by parliament , there is no special punishment exprest here against the officers . who detain the kings rents : but by the civil law , these who abstracted publick money , or converted it to their own use , erant rei peculiatus , qui olim paenâ quadrupli postea deportatione puni●bantur , magistratus vero qui durante officio publicas pecunias abstraxerunt capite puniuntur , l. un . c h. . but this crime only holds in the misapplying of publick money , and not in the withholding the kings rents . nota. this and the next act bear not to be made with consent of the three estates of parliament , but only that the lords think expedient ; by which i think must be mean'd the lords of the articles , or else this and the next act being concessions of the barons , in what related to themselves , they were not thought fit to be drawn as acts of parliament , but only as concessions ; but i incline rather to think that by lords here is mean'd , the lords of articles , because the acts and of this parliament bear the conclusion of the lords of the articles , though sometimes by the word , lords , are mean'd the three estates of parliament , as in the act par. ja. . by this act the rose-noble was made the standart of all the gold , and it was of twenty two carrets and ten grain fineness , but now our gold is only of twenty two carrets fineness , that gold being too soft , and consequently , subject to be wasted . by this act also the warden of the cunȝie-house were first instituted , for understanding of whose office , it is fit to know , that the master of the cunȝie-house has the care of coyning , and as checks over him , are for trying the fineness , the essay-master , and for trying the weight are the warden , who trons the money , and the counter-warden , who weighs after him , and is his check , and over them all is the general of the mint . by this act respits are discharg'd , whereby justice is delay'd ; and it 's here said , that respits are more against justice than remissions ; the reason whereof seems to be , that remissions are only granted after some tryal ; but respits are granted more easily , and may be sought more frequently , and that before the state of the case be examined ; nor is the party injur'd , assyth'd here as in remissions : for the same reason also , precepts for continuing justice courts , are discharg'd , and the justices allow'd not to respect them act par. ja. . and by the act of that same parliament , they are discharg'd also ; for that act stricks against respits , as well as against protections . the act anent ferries is explain'd in the observations upon the act par. ja. . observe o. from this act , that the silver of scotland should be penny fine ; for though this act says , that it shall be the fineness of penny fine ; yet the meaning of that act is , because penny fine is the finest imaginary value , but there must be still a twelfth part allow'd of alley to make the siver malleable ; and albeit the punishment in the act against these who work not up to this fineness be arbitrary , yet it is declar'd to be punishable by death , by the act par. q. m. observ. o. that the ordaining this act to take effect after forty days proclamation , implys , that regularly acts may be put in execution sooner , as by the act par. ja. . king james the third , parliament . this act is only a temporary statute , ending with these who swore to observe it , but the bringing malefactors to the bar in sober manner , without assisters , is commanded by many acts , and though by this act it seems , that the justices cannot hinder some of the pannels friends to stand with him upon the pannel ; that is to say , to stay at the bar , and that four friends are allow'd to the pursuer , and ten to the defender , by the act par. q. m. yet the justices do suffer few or none to stand with the pannel , as they see occasion for it . the crowner of old received the porteous rolls , that is to say , the names of such malefactors as were to be pursu'd at justice-airs , but now the justice clerk keeps it himself , and gives it to the macers of the criminal courts , or messengers who cite the persons to be pursu'd . the defenders in slaughter are by this to be cited upon six dayes to find caution , or else are to be denunc'd rebels ; but now if the criminals be not in prison , they are to be cited to find caution upon fifteen dayes , but if they be in prison they may get an indictment to answer upon twenty four hours . by this statute it is clear , that a person apprehended and incarcerated , must first be maintain'd upon his own expences , and if he be not able to aliment himself , the sheriff is to aliment him upon his majesties allowance , and by a late act of the justice court the keeper of the tolbooth of edinburgh is discharg'd to receive any criminal prisoner , till he who enters him prisoner , find caution to aliment ; for before that act , poor people were starv'd and ruin'd by their imprisonment . this act is in desuetude , for nothing is due now to crowners , because they do not attach as formerly , and this was the price of their pains or fee. this act is in desuetude , for no sheriff tholes now an assize , the last nor no day of a justice-air , except he be pursu'd for some particular crime , or for malversation in his office. by this act if the sheriff hear of any convocations , he should charge them to cease , and if they refuse , he should continue the court , and pursue them , and the punishment is imprisonment for a year ; from which act , it was argu'd justly in the earl of caithness case , that though men refus'd to dissipat at the sheriffs desire , he could not summarly fall on them , and kill them , for that were too dangerous a power to be given to any sheriff , and all that he could do by this act , was to acquaint the king , and then pursue them . this act ordaining the causes of widows and orphans , kirk-men , &c. only to belong to the cognition of the lords , is in desuetude , and these actions do properly belong to the commissariot court. the burrows of scotland have liberty to meet in time of parliament , and to propose as a body , and third estate , any overtures for trade , but no other state of parliament can lawfully meet , this being a singularity indulg'd to them for the good of commerce ; and the subsequent acts are propos'd by that estate to the parliament , and by them turn'd into acts , as appears by the rubrick it self . vid. act par ja. . vid. observ . on act par. cha. . and on act par. ja. . the act here ratifi'd , though not exprest , is act par. ja. . though this act allows the burrows to meet every year at inner-●eithing only , yet thereafter they are allow'd to meet four times in the year , at what place they shall think most expedient , act pa. ja. . and the burgh of edinburgh , with six of the rest may conveen them , act par. ja. . now they meet in july at edinburgh , pearth , dundee , aberdene , stirling , and the provost of the town in which they meet , being always president without election , and though the fine of each absent burgh be here five pounds , yet it is made twenty pounds , act par. . ja. . this act adds to the ordinary annexations , that the king shall be bound by his oath at the coronation , that he shall not alienat the annext property , which oath is given by all the succeeding kings . it is observable also in this act , that the kings great seal , and the seals of all the prelats , lords , barons , and commissioners for burrows are appended , which was usual in these days , in all concessions granted in parliament , and i have several patents of honour , granted by the king in parliament , wherein the kings great seal was appended , as now it is to the patent ; and the seals of all the ecclesiasticks , were appended upon the right side , and these of the laicks on the left side , each seal hanging from a label or tag , on which the owners name was writ , and in anno . a commission to the lord seton to be ambassador in france , was thus seal'd by the king , and sign'd by the nobility , and by the act par. ja. . the morning-gift of the abbacy of dumfermling is said to have been under the kings great seal , and the seals and subscriptions of the estates in favours of q ann. this priviledge was granted by malcolm leg . m. c. num . . but both that priviledge and this statute , are now in desuetude , so that now the crowner has none of the malefactors horses . this act appointing that strangers be well us'd , and that no new customs , impositions or exactions be put upon them , seems to limit the kings prerogative acknowledg'd by the act sess. par. ch. . by which it is declar'd , that the king may dispose and order trade with forraigners as he pleases , a consequent of which prerogative is , that he may either discharge trade with forraigners , or burden it as he pleases , since by this act no new imposition can be laid on . but the answer to this is , that this act relates to strangers , and not to the kings own subjects , so that though strangers come , they should be civily us'd by this act , yet they may be debar'd by that act. this act granting a commission to examine the laws , and put them in one book , took effect in skeens edition of the acts of parliament , and regiam majestatem , in which many of the old acts , yet to be seen in the records of parliament , are left out . observ. that the acts of parliament are call'd the kings laws , and not the acts of parliament , for the king has only the legislative power , and the estates of parliament only consent . the books of regiam majestatem , are likewise numbred amongst our laws , but what is mean'd by the words ( acts and statutes ) added in this act to the kings laws , and reg. maj. i do not understand , except by these be mean'd the burrow-laws , and the statutes of the gildry , and these other books that are bound in with reg. maj. k. james iv. parliament i. by the twelfth articl . iter. just. the burrows had liberty to repledge their own burgesses from being upon assizes ; which priviledge is here regulated ; but now the priviledge it self is in desuetude ; for all burgesses are oblig'd to pass upon assizes , except the chirurgeons of edinburgh , who have a special priviledge , because of their necessary attendence upon sick persons . by this statute all ships must come first to free burghs , and no strangers can fraught ships ; but now by the act sess. par. ch. . all ●urghs of barony and regality , may traffick in the product of scotland , as freely as royal burghs . vid. that act and the observ . thereon : that part of the act discharging strangers to buy fish that is not salted , is now in desuetude . it was argued from this act , in the case of the town of linlithgow against borrowstounness , that the burrows royal had the only priviledge of having all goods liver'd and loadned at their ports ; and which is likewise clear by act par. ja. . and by act par. ja. . o. without this priviledge , the burrows were not able to pay the sixth part of the burdens laid upon them , in contemplation of their trade , since a clandestine trade without this might be carry'd on by the burghs of barony and regality , who , since they may retail publickly , might have the same priviledge as they , if they had likewise power to import publickly . o. this was most convenient for securing the kings customs ; because where ever there is livering allow'd , the king must have waiters , and upon which consideration , the magistrats of burghs royal are by the acts of parliament , appointed to assist the kings customers ; and whereas it was pretended , that the priviledge of commerce was inter regalia , and consequently the king might grant a free port to any burgh he pleas'd . o. the priviledge of a free port was different from that of livering , and loadning . o. the acts of parliament cited , did only discharge strangers to load and liver , which is yet more clear by the act par. ja. . to which it was reply'd , that the king and parliament , having formerly granted the sole power of loadning and livering to free burrows , it was no diminution of his power to assert , that he could not give a new grant of that to any , whereof he was formerly divested . to the d it was reply'd , that the sole priviledge of a free port granted by a king to a burgh of regality , or barony , can extend no further , than that thereby they may have the priviledge of bringing into their port , the goods proper only to be sold by them . to the d it was reply'd , that this act discharges strangers and others to liver at any place , except at the ports of burghs royal ; and though in that act par. ja. . this act is repeated , as relating only to strangers , yet in the next line , strangers and others are in that again discharged ; likeas by the acts of parliament , the sole priviledge of losing and loosing , is declar'd to belong only to burghs royal , which in sea-faring terms , signifies loadning and un-loadning . by the act par. ja. . the rents of churches , or benefices , whereof the king is patron , are declar'd to belong to him sede vacante , by the priviledge of his crown , and this was so formerly declar'd by the cap. stat. rob. . and skeen there observes , that cum alicujus beneficii ecclesiastici patronatus pertinet ad regem terra si quae sunt ei annexa pertinent quodammodo ad regem ; and therefore by this act it is appointed , that it being declar'd by the best and worthiest clerks of the realm , that if any church-man received , and purchast such a benefice at rome , they should be punish'd and these who supplyed them ; this declaration from clerks was requir'd , because the secular would not meddle with church-men in these days , till church-men had some way declar'd them guilty . king james the fourth parliament . that part of the act appointing the intromission with the kirk rents , to be a point of dittay ( that is to say , to be a crime ) is now in desuetude ; for they have no other priviledge here , more than laicks ; but to intromet with their rents , either by arms or open force , is the crime of oppression with us , and was punish'd by the romans , lege julià de vi , per deportationem in liberos homines , & ultimum supplicium in servos . observ. that by this act , parsons and vicars are founded in jure , as to teinds , for it is declar'd a crime to intromet without a right from them . i understand not how it is said here , that the king could not discharge any part of the taxation granted to him , though it was granted for a particular or publick use , for it is ordinary and lawful to kings with us , to discharge privat parties their particular proportions , except the contrary be expresly provided , and the offer be so qualifi'd by the parliament ; but here the king was minor , as appears by the subsequent act , or rather this taxation being granted originally for maintaining an ambassador for the kings , marriage , as is clear by the act , and so ad particularem effectum , it could not be diverted from that particular use , lest else the embassie should have fail'd ; and from this we may observe , that what is granted for a general and publick use , cannot be otherwise apply'd or taken away . it is observable from this act that the king was minor , and that is the reason why he could not discharge something here exprest , which falls not under his annex'd property . the parliament here recommends only to the king , that his majesty shall cause his wardens observe the days appointed for truce , and they meddle not with it , because what concerns peace and war , belongs to the king , and not to the parliament . the restrictions here put upon the king , proceeded from his minority . nota , councellours are made accusable to the king and parliament of their council , till the next parliament ; for the words are , and shall be responsal and accusable to the king for their counsel ; but this was in the kings minority , and therefore there were greater reason that they should have been lyable for their counsel , than when a king is major , for then he may judge of their advice ; in which case , nemo tenetur de concilio nisi doloso aut fraudulento . but it may be infer'd from this act , that regulariter , counsellours are not lyable for what they do , else this act had been needless , obliging them to be lyable only till the next parliament . but it is also observable , that this act was made by these who had risen in rebellion against king james the third , under pretext of his sons command , though in effect they forced him when he was a child , to head them against his father , and in this act they force him to make use of their counsel ; and yet the act bears only , that the king humbled himself to abide at their counsel ; the same persons made an act declaring that rebellion lawful , which is yet extant amongst the black acts , but was expung'd as most abominable and rebellious . though this act appoints that our gold and silver shall be of the fineness of brudges ; yet by the act par. ja. . and act par. q. m. the silver is to be eleven penny fine , and the gold twenty two carret fine , so that the best money being but twelve penny fine , and the best gold twenty four carret fine ; there is a twelfth part of alley allow'd in either , and so our silver-work , and our coyn should be of the same fineness ; but this act has been in desuetude , as to silver-work , for which the gold-smiths alleadge , that the people are to be blam'd , and not they , since the people will not go to the price , and they do the people no wrong , since they proportion the price to the intrinsick value . we observe both in our plate and coyn , the same standart with england ; but the standart of the french plate is finer than their coyn , to discourage their subjects from having much plate , and encouraging them to bring it to the mint , for current money . the reason that is alleadg'd , why this alley is allow'd to both gold and silver is commonly said to be , because they are not malliable without some mixture of copper , but the contrary will appear to these , who use to refine silver with lead , and gold with antimony , by which , gold and silver may be brought to the exactest fineness , without all mixture , and they are then most malliable and soft ; but the true reason why the copper is added , is , because without it , both gold and silver would be too soft , and so too much subject to wearing and loss , as appears in the english rose-nobles , and the double of hungarian ducats , and the venetian cequins ; for which cause the emperor now adds more copper to his ducats ; and the english make no more rose-nobles , or any other gold so fine . is formerly explain'd in the act par. ja. . the prince of scotland was earl of cumberland , whilst that countrey belong'd to this crown , but when the steuarts came to the crown , which was in the reign of rob. the . their heretage which was renfrew , &c. was erected in a principality . that there was such an erection , is clear from the revocations made by k. ja. . and k. ja. . where all dispositions of lands annex'd to the principality , are revocked , but the erection it self is lost . however to supply that , the rights made by the king bear still to be as prince when there is no prince , and as administrator to the prince when there is a prince , and the revenue of the principality is manag'd in cumulo , with the rest of the kings revenue , when there is no prince , but when there is a prince , he has a chamberlain , who receives and compts for the principality a part . it was debated january . whether when there was no prince existing , the vassals who held of the prince , were to be repute vassals holding of the king immediatly ; or as vassals holding still of the principality , and so holding of a subject , the principality being still a distinct see , whereof the king had only the administration . but it was found by the lords , that when there was no prince , they held of the king ; and therefore they found , that the laird of lusses marriage fell to the kings donator ; though it was alledg'd that his marriage of these lands could not fall to the king , since he held other lands taxt ward of the king , and he who holds lands of the king , is not lyable in a marriage , for lands holden of a subject , and consequently , he being content to pay the taxt marriage to the king , the ordinary avail of his marriage could not be crav'd , for lands which he held of the prince , who was but a subject . the reasons of which decision were o. that appanages given to children , do in their own nature imply to be only temporary , and whilst the child exists to whom it is provided for an appanage ; and therefore since we have not the foundation of the principality it self , we must construct it to have been thus erected . o. by this act it is ordain'd , that when there is no prince , the vassals of the principality shall come to parliament , and none can come to parliament 〈◊〉 such as hold of the king ; and that same act says , till the king have a son , who shall be immediat betwixt the king and them , which clearly demonstrats , that till there be a son , they hold immediatly of the king. o. this is yet more clear by the act par. ch. . and the act par. ch. . whereby lands holding of the king and prince , are aequiparate quoad all legal effects . o. when the kings comes to any estate jure privato , by succession or forefalture , these lands alter their nature , and the vassals hold of the king as king , and are not consider'd as holding of a subject as formerly ; and therefore the same should hold when the principality by the not existing of a prince , returns to the crown . o. by an express decision observ'd by dury . it is found , that whilst there is a prince , the lands of the principality hold of the prince , but when there is no prince , they hold of the king. o when there is no prince , the king dispones the casualties , and sometimes the lands , as he does these of his own property , and it were absurd to assert , that when there is no prince , the king dispones as administrator , for else he behov'd to be comptable ; nor can there be an administrator where there is no pupil : but the king is term'd sometimes an administrator ex errore stili , or ad majorem cautelam , or else the king is truly made to dispone both as king and prince to keep up the principality as a distinct fee and erection , lest otherwise the knowledge of the lands might perish , the erection being lost . o. this is clear by the practice of forraign nations , perez . ad tit . . lib. . cod . num . . terrae quae in appanagium dantur penes domanium semper manent solo usufructu provisionali●er concesso , alias contingeret regium domanium sensim diminui . men used to give their best horse or some other acknowledgment to great men , and especially to chiefs of clans , for their protection , and these are here discharg'd , and are a kind of black-meal , they are now intirely in desuetude . nota , possession past memory of man is not sufficient in unwarrantable exactions & oportet consuetudo sit rationabilis alias non tenet . this act is in desuetude , for actions of poinding the ground , are now pursu'd for recovering bygone annualrents , in the ordinary form of process . the forcing the kings tennents to do service , is punish'd as oppression by this act , but the punishment is not specifi'd , and though oppression be punish'd by death , act par. ja. , and by the act par. . ja. . yet i think that here oppression could not reach that far , and though it be ordain'd to be a point of dittay ( that is to say a crime ) by this act , yet such oppressions use to be pursu'd before the council , though some oppressions may be pursu'd before the justice court , or council , as is clear by the act par. ch. . and oppression is a general name for violence , as stellionatus is in dolo . king iames the fourth , parliament . the alliance betwixt scotland and france is here ordain'd to be renewed , and new priviledges to be desir'd , which were accordingly obtain'd , and the alliance here mentioned is inserted in the . act , . par. q. m. the form of the chancellary is not to be alter'd , except in the brieve of the summonds of error ; the reason of which exception is , because by the . act of this parl. the form of the summonds of error is alter'd in some points : but by the act . par. . ja. . the stile is to be alter'd in no letters . by this act the superior of ward lands , or his donatar , are obliged to maintain the heir during the time he has the ward lands , if the heir has no other blensh nor feu-lands ; and though he have blensh or feu , yet if he have not as much of either as may entertain him , or if they be appryzed , in either of these cases the heir will have action ex paritate rationis ; and by the same parity of reason , it may be doubted whether donatars to liferent escheats are bound to entertain the rebels whose escheat they have purchast , and it may be argued that they are not , since a man is only at the horn by his own fault : this donatar to the ward is obliged to aliment the ward pupil , by allowing him an aliment , and not by keeping him in his house ; and the donatars assigney is bound to aliment , though he got no mails and duties , if he cannot shew why he was excluded from getting them , sibbald contra faulconer . the sheriff of the shire , or baillies are warranted to take surety of the superior or donatar , that they shall not waste nor destroy the lands during their right which our practique extends also to liferenters , who are bound to find caution to keep up their liferent houses and others in the same condition wherein they found them , and this is conform to the common law ; and all this matter is learnedly treated , christin . ad leges mechlin . tit . . and the way how this caution is to be found , is fully cleared , act . par. . ja. . where this shall be explained : this act is founded upon cap. . l. malcolm . by which there is a mutual contract betwixt the king and his vassals , in which that king distribuit totam terram regni scotiae hominibus suis & omnes barones concesserunt wardam & relevium de haerede cujuscunque baronis defuncti ad sustentationem domini regis . and though arnisaeus de potest . majesti . num . inveighs against this law ( for which he cites boethius and john majors history ) as contrary to reason , that being to add affliction to the afflicted : and because pupils may serve the superior by a substitute , or by allowing a part of the feu to him who serves . yet i know no man would refuse land upon this condition ; and it is presumable that whilst the vassal is a pupil , he will only need an aliment , but yet i confess that according to the very text of the feudal law , pupils are neither obliged to serve by themselves , nor substitutes , lib. . feud . tit . . cap. si minor , § . si quis decess . . tho posterior custume introduced the necessity of substitutes , gloss. in dict : § . si quis . to which we by the foresaid contract have added that the superior shall have the feu , and not be obliged to accept even of a substitute . it is the received practice of scotland , that the liferentrix should entertain the heir if she liferent his whole estate , which is only founded upon a consequence from this act , and the paritie of reason ; but in my judgement , this practice is neither warranted by this act , argumento legis , nor is it founded upon the principles of , nor suitable to the analogie of law , for as to the act of parliament it ( being joyn'd with the act . par. . ja. . whereby it is explained ) ordains that the donatar to the ward shall find caution not to destroy the biggings , &c. as also that he shall entertain the 〈…〉 the ward , but when it comes to statute anent life-renters , it appoints only that they shall likewise find caution not to destroy the bigging , but it appoints not that they shall aliment the heir , ergo , not only is there no warrand for the liferentrix alimenting the heir from this act , but on the contrary , the parliament having both cases under their consideration , and not having extended the case of alimenting to life-renters , it must be concluded that they design'd not that life-renters should aliment nam casu● omissus habetu● pro ommisso . o. laws ought not to be extended at most but ex paritate rationis , and therefore though life renters and wardatars aequiparantur by these statutes , quoa d the finding of caution , that was most reasonable , because there was eadem paritas rationis , since neither should waste that to which they had but a temporary right , and by the common law life-renters were lyable in the same way which was called cantio usu fructuaria , but quoad the alimenting , the superior in the ward , or his donatar , should be in a different case from the life-renter , because the superior in effect is but tutor durante wardâ , and therefore he should aliment the minor , but the life-rentrix is a singular successor . o. in making contracts of marriage , there is no more allowed for a life-renter than what may be a competency for entertaining the life-rentrix , and suitable to her quality ; and therefore it is against reason & contra illud quod agitatum est inter partes contrahentes , to take away a part of her aliment to aliment another . o. she being made domina of her life-rent by her contract , and there being jus quaesitum to her thereby quod ejus est auferri ab eà nequit sine consensu suo . o. tochers are oft times augmented in consideration of the coniunct-fie , and therefore its most unreasonable and illegal that what was given her for an onerous cause , should be taken from her and applyed to the behove of one who represents the contracter , who was bound to warrand her life-rent , and who got good deed upon that account ; and it is unjust that the husband by spending his estate should burden her , or that his heir should not rather want than she . o. whatever may be said to oblidge a mother jure naturae to entertain her own children ; and i think this aliment has been at first founded on that principle of justice , whereby donatores , patroni & parentes , were only lyable in quantum facere potuerunt , called by lawyers exceptio competentiae , yet there is no reason that a life-rentrix should be oblidged to entertain an appearand heir , who is a meer stranger ; and this jus naturae oblidges the mother not only to entertain the appearand heir , but all her children , as was found in the case of the countess of buchan : and albeit the act of parliament speaks only of heirs ; yet by our law , even appearand heirs will get an aliment allow'd them , though thereafter they renounce , but it is less clear , if it will be allow'd them after they have renounced , july . . hamilton contra symington : and yet in this case they are but meer strangers , and can no more be called heirs , or appearand heirs , after renunciation ; as also , though this act mentions only ward lands , yet it is ex praxi extended to others who have no ward lands , the feb. . finnay contra oliphant ; and though both the rubrick and the words of the act provide only aliment for minors , yet it is extended to appearand heirs , who are majors , as in the case of rig contra the lady carberrie ; nor will it be sufficient that the life-rentrix offer to entertain the appearand heir in the family with her , as durie observes , the . feb. . noble contra his mother ; nor is this only extended where the mother liferents all , but it is even extended to the case where all the minors estate , beside what is life-rented , is not sufficient to pay the debt , and is affected by legal diligences ; as was found feb. . antonia brown contra her mother ; but it may be very well doubted whether this last decision may be extended where the debt is only personal , and i find the lords did refuse to decide this point in a case debated . betwixt the lady staniehill and her son , though the son there alleadg'd that he sold his land to hinder comprising , and if it had been comprized she would have been lyable . and this action for alimenting the heirs was still sustained against both the grand-fathers relict , and the fathers relict pro rata , of their life-rents which they had of the appearand heir ; albeit it was alleadg'd that the mother having a nearer relation , and being the wise of him who spent the estate , should be only lyable , or at least first lyable , . decemb. . laird airdrie contra the two ladies ; but yet i find the grand-father was found lyable in no proportion with the mother , where he had only reserv'd a mean proportion to himself , when he did infest the appearand heirs father , . july , . it may be doubted whether a husband marrying the life-rentrix , having given her a provision in contemplation of this joynture will be lyable to aliment , since he is a meer stranger , to which all that can be answer'd is , that he was oblidg'd to know it was lyable to this burden ; and if he will be found lyable , it may be doubted if he will not be free from the provision given in contemplation thereof ; tanquam causa data causa non sequuta . as also , it may be doubted whether the pursuing such an action as this will infer a passive title , seing the appearand heir is thus lucratus , but yet i think it will not , since he reaps thereby no advantage which would have accresced to the creditors to whom no part of his aliment would have belong'd ; and even appearand heirs renuncing , will have right to an aliment , as is observed before . the civilians think that a mother is oblig'd to aliment her child till it be past three years of age , l. . c. de patr. pot. & ibid. gloss . and even after three years of age , if the father be not able to aliment the child , the mother is , because the child is oblig'd to aliment and reverence the mother , vid. surd. de aliment . quaest . , tit . . but they make no mention of such an alimentary action as this , which we allow . though buyers of land be obliged to keep the tacks set by their predecessors , yet the superior is not obliged to keep them when the land falls to him in ward , during which time he is proprietar , nor are life-renters nor conjunct-fiars oblig'd to keep them during their temporary rights ; but when these rights expire , the tacks revive ; and yet by this act the superior or life-renter cannot remove them till the next whitsunday after the ward or life-rents fall , the tennents paying the maills and duties to the superiors or life-renters ; but it may be doubted whether this will hold , when the duty is only a simulate duty , and not near the rent of the land , for this was design'd to secure the tennents reasonably , but not to prejudge the superior or life-renter ; but certainly this act will not defend these tennents who have payed their duties to their masters before hand . though particular pains be set down as to law-burrows , in civil cases , by former acts , yet in criminal cases , because of the importance and danger , it is left arbitrary to the judges to cause the parties find caution under what sums they please , and before the council , likewise , the sum under which caution is to be found , is , de praxi arbitrary . since this act sayes that the party complainand shall be harmless , it would seem by this act , the council can oblige no party to keep another harmless , except where the party himself complains , in which case he must give his oath he dreads bodily harm , conform to the act , par. . ja. . vid. observ . on that act. but yet the council is in use to cause men find caution to keep others skaithless , even where the parties do not crave it ; but this is only in cases where there have been previous breaches of the peace amongst them , so that either a party does complain , and then he must give his oath , and if he complain not there must be a previous breach of the peace , and in that case there is no need of an oath or a complaint that he does fear bodily harm . though the council or justices may by this act exact law-burrows , yet by this act it is only ordain'd where complaints are rais'd before them , and by complaints here is not to be understood common bills , for law-burrows upon common bills are only raised in course before the session ; and there is a particular servant in the bill chamber , whose office it is only to write upon these bills , and take the bonds , and see that the cautioner be sufficient ; but the council and the criminal court , only exact caution of law-burrows , when there are processes intented before them , and the judges there do see that either party has reason to fear bodily harm , because of what has preceeded . by this act dismembration is made equal to slaughter , and it is to be try'd within three suns , and seems by this act to infer death , if it be upon forethought-fellony ; but i have not observ'd it punish'd by death , but only as mutilation by an arbitrary punishment , or confiscation of moveable and assythment to the party , vid. act par. ja. . by this act the kings leiges are to assist at justice-airs , under pain of being punish'd as favourers of the trespassers , and that dittay is to be taken up against them for that effect ; but by our present practice , though the heretors of every shire be by a proclamation ordain'd to attend the justices , whilst they remain in their shire , yet their absence is never made point of dittay . i find by the registers of council , that all the southern shires were cited to attend the justice-airs in q. m. reign , and to bring with them provision for twenty days . all these acts are in desuetude ; but it 's observable that park of foulfoordlies , being charg'd to wait upon hume of wedderburn his superior , at the host , conform to his charter , and being thereafter pursu'd for not attending him . the lords found the vassall fineable , though he pretended that by this act . he was to attend the sheriff , for he ought to have waited upon his superior to the sheriff , or the kings captain , and these obligations were different and very consistent , july . vid. observ . on act par. . and act par. ja. . supra for clearing the act. convocations in the countrey are punish'd only by pecuniary mulcts , or imprisonment before the secret council ; but convocations within towns are more dangerous ; and therefore punish'd in this act by confiscating the moveables of the offenders , and their lives are to be in the kings will , so that their lives may be taken ; but by this act , the rising at the command of their magistrats , is declar'd no crime ; and therefore it may be doubted , whether if the magistrats should raise their burgesses to invade their neighbours , or to oppose his majesties forces , if in these cases they can be pursu'd for convocation , since they are by this act warranted to rise at command of their magistrats , which certainly might defend them in dubious , but not in clear cases ▪ observe that by this act all burgesses are ordain'd to obey their magistrats , when , and in what ways they shall be charg'd , either for the defence of the kingdom , or common good of the burgh , under the pains foresaids , but the magistrats use only to fine such as refuse to ride with them , and i have heard the lords demure , whether burgesses were oblig'd to attend prisoners without the priviledge of the town , at the desire of the magistrats , since sheriffs were bound to receive prisoners there , and burgesses are only bound to watch and ward within their own town and territory . the rule laid down in this act , viz. that wherever the defender may be punish'd by infamy , he must compear personally , holds not still true , but wherever he is to be punish'd personally , he must compear personally ; and therefore it is that defenders before the criminal court and council , must compear personally . the common-good of burrows ought not to be sett without consent of the deacons of crafts , which is observ'd to this day , nam quod omnes tangit ab omnibus debet approbari ; and by the act par. ja. . it is ordain'd that the common-good shall be rouped yearly , which is also observ'd , and though that act appoints it to be set , by the advice of the magistrats and council , without speaking of deacons of crafts , yet that does not exclude them . by the civil law bona civitatum non possunt vendi sine permissu principum propositis sacro-sanctis evangeliis & insinuato decreto apud praesidem provinciae l. ult . c. de reb . civit. vendend . by this act also the rents of burrows cannot be set for longer time than three years allanerly , but it may be doubted , if they may be set from three years to three years , for many three years in one paper ; or if such obligations will force magistrats to renew the tacks , for if this were sustain'd , the act might be easily eluded , but the of february . the earl of galloway contra burgesses of wigtoun . the lords found that this nullity was not receivable ope exceptionis , especially not being propon'd by the town . these tacks seem likewise to be valid , if restricted to three years , vide annot. ad act par. ja. . vide act par. ja. . & act par. ja. . by all which , crack'd gold is commanded to be taken , if it be of fineness , all which renew'd acts shew , that the people were unwilling to receive such gold. king james the fourth , parl. ▪ vide annot. ad act par. ja. . but for further clearing this act , it is fit to know that the pope was in use , and pretended right to confer by prevention , benefices which were elective , and some whereof , the patronages belong'd to the king and subjects , vid. coras . specimen jur. eccles. lib. cap. . as appears by this act and by the act par. . ja. . and therefore by this act the impetration of these in such cases , is discharged under the pain of proscription and banishment ; but by the act par , ja. . and the act par. ja. . it is also punisht as treason . it is against the interest of the church to unite benefices , because every union extinguishes some benefices , and lessens the care of the souls ; and yet union is allow'd when the benef●ces to be united are impair'd , by poverty , hostility , or by destruction of the people to be car'd for , and least the interest of persons should be more consider'd than that of the church . it is by the canon law appointed , that all unions of benefices must be perpetual ; but the pope having reserv'd to himself the power of uniting any benefices , propter plenitudinem potestatis cap. . de prebend . in . clem. . ut lit . pend . nihil innov . therefore the subjects of this kingdom went to rome , and got benefices united ; and to prevent this , all unions of benefices are discharg'd by the act par. ja. . and the obtaining such unions and annexations is declar'd treason , and since our bishopricks and abbacies were founded by our kings , it was unjust that they could have been united without his consent , because even by the canon law , benefices cannot be united without consent of the laick patron bengeus de benefic . cap. . § . . num . . unions are now made by the commission of the kirk , and the ordinary reasons upon which churches are united with us , are the meanness of the provision , the meanness of the two parochs , and the paucity of the hearers ; to the granting of which unions the patrons must still be call'd , because of the above-cited constitution of the canon law , but they may be united , though the patron consent not , if he shew no good reason for his dissent . the popes also us'd to value benefices upon new informations , whereby the value was much hightned ; and therefore by that act it is ordain'd that no benefices be higher than they were in bagimonts roll , which bagimont was a cardinal , who had made a rental of all the benefices in this kings time , as skeen de verb sig observes , verb ▪ bagimont ; and this taxation of benefices , is founded on extravag . suscepti regiminis lib. . it is therefore appointed that none supply with money , those who are to go to rome , to make such purchases , act par. ja. . but that act seems unnecessary , for the purchasers being declar'd traitors , it was certainly treason to assist them with money , so that the said act was made to certifie and clear ignorant people , which the law calls ad majorem evidentiam . this act is formerly explain'd , and that part of it which appoints the hosts , with whom strangers lodge , to be comptable for their uncustomed goods , is in desuetude , except they were conscious to the guilt . vid. observ . on act par. ja. . supra . crafts men who exact from these of their craft , are to be punish'd as oppressors ; but i doubt what is the meaning of these words , and shall buy their life as common oppressors ; and the most probable meaning is , that they shall be bound to take remissions for so doing , as for a capital crime . nota , common oppression is capital by this act , and such statutes , or impositions laid on by crafts-men , for extortioning the leiges , are reprobated by the laws of all nations , as a species of monopoly , vid. tritz . de monopoliis cap , vid. observ . on act par. ja. . supra . crafts-men leaving off mens work , if others refuse to compleat it , because of statutes among themselves , forbidding them to undertake any such work , such are punishable as oppressors ; but if they refuse upon any other account , they are not punishable ; for this act punishes only such as make use of such unlawful statutes , and if crafts-men should come in to cheat this act by a general resolution not to suffer any to compleat what another had begun ; i believe that the magistrat might punish this as a cheating contravention of this law. nota , that trades-men who make statutes against the common-well of the leiges , are punishable as oppressors , for otherwise crafts-men might extortion the people at their pleasure . this is also discharg'd , l. un . c. tit . . lib. . de monopoliis & nov . . cap. . aedificiorum quoque artifices vel aergolabi , aliorumque operum professores penitus arceantur pacta inter se componere ut ne quis quod alteri commissum sit opus impleat , vid trith . cap. . and observ . on act par. ja. . supra . it is free to sell victual in all burrows any day of the week , though it be no mercat day by this act ; yet now every burgh has its own mercat days for corn as well as for other things . though by this act the users of false measures and weights be only punish'd as falsaries ; yet the justices found that the havers of false measures should be also punish'd as falsaries , though using could not be proven ; since these who had them , are presum'd to have had them only for use , except the presumption were taken off , as by proving that the weights were only borrow'd , or laid aside upon tryal , may . in the case of porteous at a justice-court in jedburgh ; but by the cap. stat. dav. . the users of false weights were only to pay cows to the king. it is clear from this , that the masters commanding his servants , or cottars to break laws , such as muir-burning , specifi'd in this act , does not free the servants , but makes both lyable ( albeit ignorance and command when joyn'd , might seem to excuse the breach of a penal statute , at least a poenâ ordinaria ) but the masters command should not excuse from the punishment where the transgression is either against the law of god , of nature , nations , or the crime is atrocious in it self . some of the nobility having most rebelliously fought against king james the third , upon a false pretext , that he was bringing in the english upon the kingdom , they advanc'd his son king james the fourth to be leader , and having prevail'd , they secur'd themselves by several acts , yet extant in the black impression , but which are omitted in this impression except this one . the king revocks all tailȝies made to heirs-male in prejudice of heirs general ; because ( as craig observes ) this is against conscience , and is defrauding of the righteous heir ; and i have seen old licences granted by the pope , to make such tailȝies and alienations for reasons exprest in the bull , and upon consideration whereof the pope dispences with the matter of conscience , and in the act the estates without the king revock all such rights , quod notandum . nota , the king here revocks all change of holdings from ward to blench , and not from ward to feu , because it was lawful at that time to change from ward to feu by the act par. . ja. . nota , union of lands in barony is revocked by this , and all the posterior revocations of our kings , because one seasine serves after the union , and the proprietar is only oblig'd to answer at one court , so that the king loses several casualties . vid. act par. . ja. . king james the fourth , parl. . by this act barons are to cause their sons learn latin & jure , that is to say law , because the act sayes , that they may have knowledge of law to prevent needlesse coming before the king 's principal auditor , for which reason also advocations are much discourag'd by many subsequent acts : auditor was not a proper term for the session , for andientia is properly allow'd only to such as have not jurisdiction , as is clear by gothesr . ad rubr. c. de episcopali audientia . by this act all actions of error against brieves , or inordinate process are to be pursued within three years , else they prescrive : and by the act . par. . ja. . it is declared that the prescription secures only the assyzers against wilful error , but that the retour may be quarrelled within years , as to the right of blood prejudg'd by the said wrongous retour . and it is observable that the law favours still revenge less than reparation . obs. . notwithstanding of this act a retour , or the execution of a brieve , or any other piece of the process may be improven at any time within fourty years , and the process it self may be reduc'd in consequentiam by reduction of any writ whereupon it followed , hope tit . reductions of decreets . obs . that this short prescription of three years runs not against such as are minors , or out of the realm , in imitation of the civil law , which allow'd immobilia praescribi inter praesentes decennio , inter absentes viginti annis . obs. . that these words , ( be rais'd and pursu'd , ) imply not that the process must be ended , but that it must be begun within three years , and the process is said to be pursu'd when the summonds is executed . vid. observ. on act . par. . ja. . king james the fourth , parliament . it is observable that though this parliament is exprest in the printed acts , as held upon the th of march , and all these acts are exprest as past upon that day , yet i find by the records themselves , that they were all past upon the th of march , which is also called quinta dies parliamenti . item , it is observable that all the acts of this parliament are only set down in way of breviat , and thus the act is thus exprest in the original record . item , it is statute and ordain'd that where any person happens to get a remission in time to come , that the said remission shall not extend nor save the taker for greater crimes , be any general clause nor is contain'd especially , and that the greatest action shall be specified , or else it shall not be comprehended ; and that the general clause shall not include greater nor the special clause . this act is formerly explained . in the observ. on act . par. . ja. . and act . par. . ja. . these acts are useless , for all these jurisdictions are now otherwayes divided and established . the shires of inverness and ross having been again after this act united , they were and are now disjoyned ; and whereas this act makes the town of thane and dingwall to be the head burghs of the shire of ross , the town of ●orteross is added as another head burgh to the other two , by an act of parliament , . it is appointed that general clauses in remissions , remitting all crimes , shall not be extended to greater crimes than the crimes specially condescended upon in the remission , but to evite this , remissions do now express specially all the great crimes , and then a general is subjoyned ; and upon this law it was controverted in glenkindies case , whether a remission for slaughter should be extended to murder , since murder was pretended to be a greater crime , as proceeding upon forethought fellony ; to which it was answer'd , that slaughter was a general term comprehending both slaughter and murder . it may be argued from this law by a parity of reason , that discharges granted for a special sum , and thereafter discharging generally all debts , shall not be extended to other sums greater than that which is specially discharged ; but yet the th february , . it was found that such general clauses did cut off all sums , even though greater than the sum discharged in special . this act ordains all remissions for slaughter to be null , if the slaughter was premeditated , and upon forethought fellony ; nor is this act temporary , being to last in all time coming , till the king revock the same specially ; but yet this excellent law is not de praxi now observed , though it be most reasonable , vid. act . par. . ja. . and the same reason given here for it , ( viz. because many in trust to get remissions did commit slaughter , ) is set down to the same purpose , canon injusta , quaest. . nonne etiam cum uni indulget indigno ad prolapsionis contagium provocat universos , facilitas enim veniae incentivum tribuit delinquendi . by the cap. . stat. dav. . it is ordain'd that no remission for murder upon forethought fellony shall be given , except in parliament , and for a publick good . observe here the discreet stile wherein kings are limited in the exercise of their royal power , for here the king declares it is his pleasure that such an act be past , and desires the estates to pass it ; and since this act is to last till it be revocked by the king , it may be doubted if the king alone may revock it without authority of parliament . the like act discharging remissions for burning corns , ja. . par. . act . though bishops are by this act to appoint and deprive notars , yet they are now both tryed and deprived only by the lords of session . though this act appoints bishops and their ordinars to take inquisition who uses false writs , yet none but the lords of session are now judges to improbation , which is the only process competent for trying falshood of writs in the first instance , and the commissar who is the bishops depute can never judge of falshood now ; except where the falshood falls in only incidenter , and by way of exception ; as if i were pursuing any action before the commissars , and it were alleadged that the execution of the summonds were false , there the commissar would be judge competent to try the falshood of the executions , for else his jurisdiction were useless ; and all sheriffs , lords of regalities , stewards and the like , have the same priviledges . by this act summonds for recent spuilȝies must be executed upon . days , whereas all summonds were to be executed upon . days , by the act , par. . ja. . which is the act here related to , though not cited ; and by an act of sederunt july , . this priviledge is extended to recent intrusions , which is a kind of spuilȝie in immoveables . observ. . that since the parliament thought that the former act of parliament could not be derogated from without an express statute , it may seem strange why the lords do priviledge any summonds by their own power , or if they had power , why they did not make actions of recent spuilȝie and intrusions to come in upon days , as well as exhibitions , poynding of the ground , and other less favourable causes ? to which nothing can be answered , but that there was an old custome for the one , but not for the other . observ. . that the last words of the said act , viz , that there shall be no exception dilator admitted against that summonds , it being lawfully indorsed , seem to imply that the judge should grant no continuation , though that properly cannot be called an exception dilator , or else that the judge should restore spoliatum ante omnia , and admit no exception upon property nor compensation , &c. but these are not properly dilator defences , or that the not continuation of the summonds upon days warning , should not be objected , but that is likewise unnecessary , since the first part of the act did that sufficiently ; and so these words with that sense had been superfluous , and therefore i rather incline to think that these words were only designed to show the parliaments great desire to have recent spuilȝies dispatch'd , though ill exprest ; it may be doubted whether recent spuilȝies being only such as are raised within days after the spuilȝie is committed , sabbath or feriot days should be counted amongst the . observ. . that it may be argued that spuilȝies regularly cannot be pursued before the sheriff , or else why is it allowed here as a priviledge to recent spuilȝies , that they may be pursued before the sheriff ; and it seems the reason why spuilȝies regularly should not be pursued before sheriffs , is because the dammages in spuilȝies must be taxed by an oath in litem , and that is nobilis officii , and consequently cannot be administrated by any inferior judge , nor can these inferior judges modifie what is sworn by an oath in litem , that being yet nobilioris officii . by this act the sheriff is to have pennies of every pound , as sentence-money , which was called sportulae by the civil law , and this sentence-money is still in use . this act appoints every lord and laird to have a cuningare ; but it may seem strange why none are allow'd to have dove-coats , except they have ten chalder of victual in rent ; and yet men are commanded to make cuningars , since cunins may prejudge neighbours , as doves do ; which makes craig , as i conceive , doubt whether the vassals may have a cunigare , except the same be granted to him : but though the superior grant cunigars with the clause cum cuniculis cuniculariis , the former doubt remains , for the superior cannot prejudge third parties . to which these answers may satisfie . o. that it was necessary by this act once to invite men to plant cunigars , whereas dove-coats were frequent before the act . that restricts them . o. this command is only to lords and lairds , which implyes men of estates , but is not given to all the lieges ; and i doubt not but if an heretor of ten chalders of victual , or thereby , should plant a cuningar , but his neighbours might by common law , and an argument drawn from the act . par. . ja. . force them either to inclose their cuningar , or to give it over . before this act the heir could not have been pursued for any debt till the executor was first discust ; but by this act the heir is made lyable to the creditor after his annus deliberandi expires , both as to heretable and moveable debts , which was very just , because quoad the creditor , they all represent the defunct , but yet he will get his relief of all moveable debts from the executor , as far as the inventar extends ; and if he be served heir within the year , the creditor will get action against him for heretable debts , even within the year , for by entering heir he renounces his benefit of deliberating , and if he possess the estate , he ought to pay the heretable debt ; but though he enter heir within the year , he should not be lyable for moveable debts by this act till the year expire , since as to these he has no benefit by entering , and though he renounce the benefit of deliberating , yet he does not renounce the benefit of this act , hading . tit. heirs . nota , heirs are call'd in this act heretors , from the french word heretiers . but quaeritur if the executor be discust , and found insolvent , may not the heir eo casu be pursued within year and day , and the affirmative seems strongly founded upon the reason and decision of this act : and yet by the present practice , the heir enter'd is lyable even for moveable debts , tho pursu'd within the year . item , though by this act the executor is bound to find caution to relieve the heir of all moveable debts , yet there is no law obliging the heir to relieve the executor of heretable debts , but de practica , the lords sustain ex paritate rationis , actions against the heir for relieving the executor of all heretable debts , . march , . faulconer contra blair , vid. spotswood , tit . executor carnoussie contra laird meldrum , which seems to be contrary to the words of this act , whereby it is more than insinuated that the fathers moveable goods should pay his debts ; and by the narrative of act par. . ja. . is yet more clear ; by the civil law the children that were in potestate patris were forced to enter heir , but thereafter this was thought too severe , and therefore the roman praetor allowed even to these heirs a liberty to abstain , and a year to deliberate whether they would be heirs , which we have borrowed from thence , but jure novissimo the heir was to be only lyable according to the inventar , if he made one , & non ultra vires inventarii , which holds only with us in executors who are heirs in moveables , for heirs in heretable rights are lyable in solidum , if they once enter . if the marriage was not quarreled by a process in the husbands time , as unlawful , the wife will have right to her terce , without necessity of proving a lawful marriage , and will possess her terce till the marriage be found to have been unlawful ; for in the common law , and ours , an unquarrel'd cohabitation is a valid probation of the marriage , l. in libera ff . de rit . nupt . yet it cedes to a contrary probation , as all praesumptiones juris do , vid. pacian . tract . de prob . lib. . cap. . and in our law bastardy is not inferr'd , because the marriage cannot be proven , but it must be prov'd positive that the defunct was reputed bastard , feb. . k. advocat contra craw , & june , . . livingston contra burn and if that be prov'd , he who pretends to be heir must prove also that the defuncts father and mother were lawfully married . by the same parity of reason the husband will have right to the courtesie of scotland till the marriage be found null ; and the allegiance of bastardy is not receivable summarly against the service of an heir , vid. infra observ . on act . par. . ja. . all who did hold of the king were of old oblig'd to come to parliament , till by this act these whose lands are within merks of new extent are indulg'd not to come , except they be specially called by the king. this act seems obsolet , for none are specially called now ; whether the king may yet call any barons he pleases , is dubious , both because they were once bound , as well as impower●d to come ; and this faculty was only remitted for their own advantage , and after that , this act allows the king to call them ; and it seems reasonable that if there be any wise baronin the kingdom , the king who calls parliaments for consulting the great affairs of the kingdome , should have liberty to call him , albeit the shire choose him not , and the king may make any man a lord of parliament . nota , these who were then members of parliament could have sent their procurators , but now no procurators are admitted for absents further than to excuse their absence , which is done by a letter to the commissioner , or chancellor , or by a member . vid. obs . act par. act par. ja. . act par. ja. . supra , and act par. char. . infra . this statute is explained act . par. . ja. . but the reason why it is here added , that the isles especially shall be govern'd by the kings laws , was , because the kings of denmark pretended that the isles of orkney and shetland should be govern'd by their laws ; for the king of denmark renounced all right to these isles in favours of k. james the third his son in law , in anno . vid. skeen de verb. sig . verb. annuel . that all officers should be chang'd yearly , is formerly gloss'd , in the observ . on act par. . and act par. ja . that none have jurisdiction within burgh , but such as use merchandise , is by some interpreted to be sufficiently satisfied in those who once used merchandise , even as semel baro is semper baro , and few present provosts are actual traders ; and therefore it was doubted whether one who has been a merchant , but was thereafter a senator of the colledge of justice , might not be a provost . vid. infra observ . on act par. ja. . it is fit to know that the dukes of burgundy gave the scots the first priviledge of staples , which was transferr'd to camphire at the christening of prince henry . the conservator is by a right under the great seal constituted judge there betwixt merchants , and he must have by this act six assessors , or at least four , which is still observ'd , and the decreets run in his name , with the consent of his assessors ; and of late by articles with the prince of orange . the conservator has the sole criminal jurisdiction , when crimes are committed by scots merchants ; he is likewise by his patent constituted agent for all affairs relating to scotland , as well as for trade . by an act of the burrows at air . it is declar'd that all goods that pay custom , either when they are carri'd out from , or in to the kingdom , shall be accounted staple goods , and so being under the protection of the conservator , he claims to have fees for them ; but in anno . there is a list of staple goods made by the burrows ; and in . they made a new list , declaring and ratifying the former . this act is still observ'd , for the conservator uses to come or send in july ; but by twenty pounds great , here exprest , are mean'd twenty pounds fleems . this act forbidding mercats to be holden on holy days , is in observance , but this part which forbids mercats in kirk-yards , under pain of escheating the goods , is not observ'd , though renew'd act par. . ja. . and mercats are discharg'd in churches , decret . pars . distinct . . but i find them not discharg'd expresly in church-yards , though church-yards had in other things the same immunity with churches , and thus they were sanctuaries , as churches were , can. sicut antiquitus canon definivit . quest . and their extent was to be fourty paces in greater churches , thirty in lesser . vid. observ . on act par. ja. . this act is useless , for no taxation can be laid on , except either in parliaments , or conventions of estates , and to these all the three estates must be call'd ; but it shews that of old , taxations were laid on in conventions , which consisted of any the king call'd summarly off the street ; nor were the burrows oft-times call'd , therefore this act was made , declaring that no taxation or contribution should be given without warning the burrows , as one of the three estates : taxations are properly burdens laid on by parliaments ; and contributions are our voluntar offers made by conventions ; but we use now the word taxation for both , what burdens are laid on by parliaments and conventions ; though this act requires indefinitly the burrows to be call'd , yet by the act par. q. m. it is only requir'd that six of the burrows be call'd . the burrows royal pay a sixth part of the taxation of scotland , and they divide their proportion amongst themselves , according to pounds scots , which is their as , or imaginary total , according to which every town pays their proportion : and though any burgh resign their priviledge in parliament , they must pay till they dispone their common good to the rest , and then their proportion is divided amongst the rest . this act appointing no burgesse , or gild-brother to be made without consent of the great council of the town is in desuetude . vid. leg . burg . cap. . the pain now is arbitrary , and punishable , either before the council or criminal court , vid. act par. . ja. . this act is useless because of the act . ordaining all seasines to be registrated , and this act is thereby in desuetude . these acts are but temporary , and yet they serve to clear the act par. ja. . and the lords found that by forfalture in the act . is mean'd , not only recognition , which is sometimes call'd a forfalture , but forfalture for treason , &c. and by this we may see , that abrogated laws , and laws that are in desuetude , should be read and consider'd , and may be of great use in decisions and arguings . the reason of making this act was , because lands united are fictione juris , one and the same , and so should properly answer to the court , to which the principal messwage answers ; and therefore this act was made to secure the interest of the ordinary judge , which declares , that notwithstanding lands are united in a barony , yet they shall answer as formerly , to their own jurisdictions , but the baron whose lands are united , needs only compear by this act in that jurisdiction , where the principal messwage by the union is , and yet de praxi , they are still call'd in all the suterols of the other shires , where any of their lands ly , and are forced to send acturneys which seems contrary to this act. there are two kinds of brieves , one call'd a ●rieve of pley , which is our ordinary summons ; another call'd a brieve of inquest , which is yet in use , as in services of heirs , tutors , &c. vid. for clearing this act , lib. . r. m. cap. , & . & stat. rob. . cap. . and because the service of heirs is no brieve of pley , therefore no exception is to be admitted against it , except it be instantly verified . this act appoints all brieves to be executed upon fifteen days , and the lords have found , that all such acts as these appointing citations upon such a number of days , do not require that both the day of citation and compearance be free , but it is sufficient that either of them be free , july . . meculloch con . meculloch . if the brieve be not proclai●'d upon a mercat day , then it must be proclaim'd before the town officers , and six honest men to make it publick , and thus it seems the parliament thought these equivalent to a mercat day ; but this holds not in other cases , where proclamations are to be upon mercat days , nor even in brieves is this now used . nota , by this act , if persons refuse to pass upon the inquest , the sheriff is authoris'd to compel them ; and this i think the justices may do in criminal cases also , for the justices ar● higher judges than the sheriffs ; and as the publick is more concern'd in these cases , so men will be more unwilling to pass upon them , except they be compell'd ; and though there be pecuniary penalties appointed against absent assyzers , yet that is but an ordinary remedy , and does not exclude this extraordinary one ; even as the penalties appointed against witnesses , does not exclude the taking them with caption . falsing of dooms are now in desuetude altogether , and to them have succeeeded reductions , in our present practice . vid. ●bs . on the act par. ja. . by this act it is ordain'd , that all measures and weights be made the same thorow all scotland , and the standarts to remain at edinburgh , and to be ordain'd by the chamberlain and his council , for then the chamberlain , or camerarius scotiae , was judge in all things that concerned the burghs of scotland , and was in use to hold a council , who with him judg'd in matters that concern'd all the burghs in general , as the dean of gild and his council judge in every particular burgh , and his statutes of old concerning weights and measures , are to be seen , iter. camer . cap. . but this office and jurisdiction over the burrows , is now obsolet , and the rectification of weights and measures is only considered by the parliament , or by the council in prosecution of the acts of parliament . though by this act all the standarts of weights and measures , are ordain'd to remain at edinburgh ; yet by act of burrows they have been divided thus ; the standart of the stone-weight remains at lanerk , because the chief commodity of old that was weighed by the stone-weight , was wool , which was paid in to the king at lanerk , and was therefore call'd lanae-arca . the standart of the pynt or jugg , was left at stirling , because the kings court recided there . the standart of the furlot remains at linlithgow , because the king had no other residence in the three lothians , which were the chief countreys for corns . and edinburgh had the ell , which is the chief instrument for measuring silks , or other forraign stuffs . i find likewise , that the town of wigtoun , and other particular burghs , have an acknowledgment paid them for measuring the jaggs within particular brewaries within their territory , and these who agree with them to pay this , are said to have a free stallage ; and the imposition is call'd their deaurie , because it is taken up by their dean , when the shire resolv'd to quarrel this imposition . it was answer'd , that it was just , because th●y inspected the measures for the good of the lieges , and that it was confirm'd by immemorial possession . i have here set down the foundations of all measures and weights for what was set down in the cap. . stat. robert . is not exact . of the weights , and foundation thereof . a corn or pickle of wheat , taken out of the midst of an ear of wheat , is the foundation of a grains-weight . eighteen of these grains make the half-drop-weight . thirty six grains make a drop-weight . four drop-weight is a quarter of an ounce . four quarter ▪ make an ounce-weight . eight ounces is a merk-weight . two merk-weig●● 〈◊〉 a pound-weight . sixteen pound-weight makes the stone-weight of laner● ▪ there was also a trone stone-weight , which did weigh nine●een pounds and eight ounces of paris weight , wherewith the butter , cheese , wool , tallow , and such other countrey commodities as carry refuse was weigh'd . there are other quantities whereof the weight is here set down , to give some contentment to the reader , as a tun-weight of light goods , which is the common fraughting of all merchandise betwixt this countrey and france , england or spain , which tunn is esteem'd to weigh pounds weight . a sack of goods , which is the common fraughting of all merchandise from this countrey to the low-countreys , esteem'd to weigh stones , or pound weight , the sirplith of goods which was the common fraughting of merchandise betwixt this countrey and the eastern countreys , is esteem'd to weigh eighty stone-weight , or pound weight . the last of goods is esteem'd to weigh stone-weight , or pound weight of light goods . the last of metal and other heavy goods ▪ is pound weight . the fodder of lead is stone , or pound weight . the vveights follovving are us'd by apothecaries , in mixture of their medecines , vvherein the least is a grain . twenty grains make a scruple . three scruples maketh a draghm . eight draghms maketh an ounce . sixteen ounces maketh a pound . the medicinal pound is twelve ounces . a sheckle-weight mentioned in the bible , is half an ounce . a talent is counted pound weight . a talent of money is crowns . the weight of all quantity of wheat bread , at every price of wheat is set down in a table hereafter following . in all our nei●hbour countreys , the flesh is sold by weight . if the meal were sold also by weight , it might prove profitable to the lieges . the twelve ounces troy weight 〈◊〉 england , weigh twelve ounces three drop twenty one grains 〈◊〉 weight . now of these our weights , are made other measures , both for corns and liqu 〈…〉 ff . the foundation of the liquid metts , proceeding from the vveight . the scottish pint , or standart jugg of stirling , is found to contain three pound seven ounce weight of the water of leith . every pint is divided into two chopins , or four mutchkins . two pints maketh a quart. four quarts or eight pints is a gallon . the herring-barrels contains now eight gallons and an half , though by the act par. ja. . it is to contain nine gallons , twelve of these go to a last , and eight to a tunn . the salmond-barrel contains now ten gallons and a quart , though by the act par. ja. . it ought to contain fourteen gallons ; and by the act par. ja. . it should contain twelve gallons ; but by an act of council , july . . it is to contain ten gallons . two barrels , or seventeen gallons is the full of burdeaux-hogs-head . the puncheons of high-countrey wines , are of thirteen or fourteen gallons . three paris puncheons make a tunn , or four hogs-heads makes a tunn . two pypes , or two butts is a tunn . six barr●kins or ter●●s make a tunn . six english buns of bear is a tunn . six salmond-barrels is a tunn . eight herring-barrels is a tunn . twelve barrels makes a last . our scottish pint contains being fill'd to the top , very near four pints and an half of english. now if the ground be true , that the pint doth weigh fifty five ounces , then consequently the tunn should weigh stone fourteen pound . the puncheon full twenty nine stone three pound and eight ounces . the barrel being full fourteen stone , nineteen pound , twelve ounces . the gallon should weigh one stone , eleven pound , eight ounces . the quart full six pound fourteen ounces . the pint three pound , seven ounces . the chopin one pound , eleven ounces and an half . the mutchkin full thirteen ounces twelve drops . by our custom there is a plouck in every jugg or stoup , and the wine is only measured to the mark or plouck , but ale and strong waters are measur'd to the top . by the . cap. statut. dav. . the pound of caithness is ordain'd to be the common measure , but that weight is not so much as known now ; but it is clear by the cap. . stat. robert. . the pound then contain'd fifteen ounces , but now it is sixteen ounces . the foundation of the dry-metts . the furlot of linlithgow , which is the standart for the whole countrey , for metting of wheat , ry , beans , pease , meal , and white salt contains twenty one pints and a mutchkin of water ; which furlot is divided in four pecks , and the peck is divided in two half pecks or four forparts . the furlot for metting of bear , malt , or oats , which were call'd heaped corns , contains thirty one pints of water . four firlots make the boll . sixteen bolls is a chalder . eighteen bolls and an half is counted for a last of ry. the half boll mett of the water measure of leith , contains nine pecks of the ordinary measure . the english quarter of corn contains near by two bolls of scottish measure . the boll of wheat will weigh fourteen stone and three pound . the furlot of dry-wheat three stone , eight pound , twelve ounces . the peck will weigh fourteen pound three ounce . the half peck seven pound one ounce and an half . the measure for coals is declar'd to be the culross chalder , by the act sess. par. . ch. . the foundation of measures for length , breadth , and thickness . three barley corns fair and round , lying in length , without the tails make an inch. twelve inches maketh a foot. three foot is an english yard . three foot and an inch or thirty seven inches makes the ell of edinburgh , which ell is parted in four quarters , and every quarter in four nails ; which measure of a foot having fallen in desuetude , is renew'd by the act sess. par. ch. . fourty five inches is the english ell. twenty seven inches is the fleemish ell. in france every town hath a divers measure , the foot wherewith the glassen-wrights measure their work , is sometimes of nine inches , and sometimes of eight inches . of the rood of vvork . a rood of land contains ells of measure ; but a rood of work wrought by masons or sklaiters contains but thirty six ells , that is , if any piece of work be found to be eighteen ells in length , and two ells in breadth , it makes a rood . twelve ells in length and three ells in breadth , is a rood . nine ells in length and four in breadth is a rood . eight ells in length , and four ells and an half in breadth , is a rood . six ells in length and six ells in breadth is a rood . a rood of land within burgh is esteemed of old to be twenty foot , that is , five foot in length , and four in breadth . the foundation of an aiker of land. six ells of the standart of edinburgh , makes a lineal-fall wherewith land is measur'd . six ells long and six ells breadth , make a superficial , or square-fall , wherewith land is reckon'd . fourty lineal falls makes a rood . ten falls in length and four in breadth , makes a rood . eight falls in length and five in breadth , makes a rood . four roods is an aiker . so an aiker contains lineal falls , or ells. eighty falls in length , and two falls in breadth makes an aiker . fourty falls in length and four in breadth , makes an aiker : thirty two falls in length and five in breadth , is an aiker . twenty falls in length and eight in breadth , is an aiker . sixteen falls in length and ten in breadth , is an aiker . four aikers are counted for a ministers gleib . six aikers arable land for a husband land. thirteen aikers is counted an oxen-gate . four oxen-gate is esteem'd a pound land of old extent . vid. observ . on act par. ja. . supra . this act is only conceiv'd in prohibitive terms , without any penal sanction , and though this be forbidden , yet it is not declar'd a crime , and yet it was found a crime to poynd labouring oxen in time of labouring , and punishable by a pecunial mulct , january . lord rentoun contra the sheriff-depute of the merss . the time of labouring is not determin'd by this act , and therefore the lords have special regard in this to the custom and season of each respective country , as was decided november . . so that tho they were labouring , yet if it was not the season of labouring , they have not the priviledge . but if the debitors labouring be ended , though the season of labouring be not generally ended in the country , yet his labouring goods may be poynded , november . . spootswood h. t. tells us that a paritate rationis , this priviledge was extended to a going salt-pan , sed leges in privilegiis non sunt extendendae . if the debitor have no other moveable goods ; the creditor may poynd even labouring goods , by the words of this act ; for it seems the parliament thought it not just that a man should lose his debt altogether , and though the priviledge here granted may seem only a delay , yet by abstracting the goods , during that suspension , he may be totally frustrated . the common law , to which this statute relates , is l. . c. quae res pigr . obl . possunt & authent . agricultores ibid. but by that law , the persons of the labourers could not be apprehended , nor made that law any distinction whether there were other goods poyndable . vid. tract . crim. tit . . where this act is more fully explain'd . this act is explain'd , act par. ja. . the former acts of revocation , revock not expresly all things done in hurt and prejudice of the kirk , but this was imply'd under the general of what was done in hurt of the king's soul and conscience ; but in this latin revocation , which appears has been ordain'd to be in latin , that a church-man might draw it ; the king revocks all that has been in detrimentum seu laesionem ecclesiae catholicae , and to shew the king and parliament enixa voluntas , all such deeds are ordain'd to be raz'd out of the books of parliament . the word kirk , comes from the greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for so the house of god was nam'd amongst the christians who were greeks , as the latins nam'd it , domus dei vid. mons ▪ fleurii des mocurs des christiens , who gives this origination for the word kirk . king james the fourth , parliament . by the act par. . ja. . some places were ordain'd to answer at justice-airs in other places than the head burghs of their own sheriff-doms , which is here restricted only to justice-airs and sheriff-courts , by which i think is mean'd taking of dittay ; but now both these acts are in desuetude , for every place answers to justice-airs , according to the division of their own shires . it is most observable from this act , that it was made in a scotish parliament or council , holden within england , which refutes that opinion , that our kings cannot hold parliaments nor councils without their own territories , upon the mistaken principle that judex extra territorium jus non dicit . it is likewise observable , that this act is made only by the king , with the advice of his lords . and it is probable , that this act like a testamentum militare in procinctu , must have some allowance given to it against the common rules , and that it imported only a discharge of the wards and marriages of such as died in this host , and was only valid because the king and lords remitted only therein a casuality due to themselves ; so that this act was but a general discharge by the king and his subjects then present , who were superiours ; but why then is it inserted amongst the acts of parliament ? or how could it have oblig'd absents ? and the rubrick calls it an act made by our soveraign lord king james the . and yet this is not properly an act of parliament ; for this parliament is held in anno . whereas this act is made in anno . and it may seem only an act of council made by the advice of the lords , that is to say , the lords of council , which judicature then govern'd the kings property by its acts ; and it has been thereafter inserted amongst the acts of parliament , for the greater security of those who had hazarded their lives at this time ; and therefore by the . act p. . i. . this favour is extended to the vassals holding of subjects . k. james v. parliament i. the master by this act is bound to deliver up his servant who is attach'd or challeng'd as a thief , or robber , vid. stat. alex. . c. . stat. will. c. . stat. da. . c. . and act . par. . ja. . and in the registers of the council there are many bonds given by masters in those terms , vid. obs . on the said act. king james the fifth , parliament . these two acts discharging the wards of those who were killed in the kings host , or prorogating for years the tacks of tennents , were very reasonable , but being temporary , are not now in observance , for the wards of these who died in the kings host at worcester , or else where , fell without any priviledge ▪ that the d act is temporary only , appears from these words , that are now killed in pursuing or defending in time of weir , against our auld enemies of england ; for that enmity ceas'd by the union . observ. from both these acts , that the receiving a deadly wound , is equiparated to the being killed . king iames the fifth , parliament . by this act the porteous roll was to be deliver'd to the crowner , but now it is deliver'd to the sheriff when justice-airs are to be held , though these who are crowners do still protest against this innovation . when the crowner got the porteous roll , containing the names of those who were to be cited to the justice-airs , he was obliged to cite them at their dwelling houses , and paroch kirks , by this act ; for by the word , arrestment in this act , and many of our old laws , is meant citation ; but if they can be apprehended personally , this manner of citation is unnecessary , though that be not here exprest . by the present practique , if they cannot be apprehended personally , they are to be cited at their dwelling houses , and at the mercat cross of the head burgh of the shire where they live . . by this act if the persons to be cited can be found , the crowner is to take surety of them for their appearance , which the sheriff yet does ; but if they be not streinȝieable , that is to say , if they cannot be apprehended , then the crowner was to arrest their goods , like to the annotatio bonorum in the civil law. . if they have no goods to be arrested , they were to be put in the kings castles , that is to say the kings prisons . . if the king has no castles within that shire , they were to be deliver'd to the sheriffs , who are bound to keep them securely . by this act the crowner is to be answerable for the caution he takes ; for the act says , that they shall take sicker surety , sik as they will stand for to the kings grace ; and it is pretended that the clerk of the justiciary is not bound for the surety he accepts , though the crowner and sheriff be , because the crowner is oblig'd to know who are solvendo in the shire , which the clerk of the criminal court cannot know through all scotland ; but i think that both are equally oblig'd , viz. to do exact diligence to know the solvency of these they take ; and since the punishment of taking insufficient caution is not here exprest , it seems to be arbitrary , and in effect to take surety that is notorly insufficient , seems the same guilt with letting a malefactor escape . the master here is only oblig'd to present such tennents as dwell within the shire with him ; but by the act . par. . ja. . if the complainer would attach the tennent , & the master be required to deliver him up , whether he liv'd in the shire with the tennent , or not , he was to be punish'd as art and part , in case he refused to deliver him up ; and by this act he is only to pay the unlaw . but this last act is not well observ'd , for now no man is lyable for his tennent , except highland heretors , and chiefs of clanns , who are to find caution to the council for that effect , vid. acts , , , &c. par. . ja. . but by this act it is clear that the king may make masters still lyable for their tennents who live upon their ground , and that in any court , though this act appoints them to be presented to justice airs , since eadem est ratio , and this act was adduc'd for justifying the proclamation that appointed masters to be lyable for their tennents , vid. act . par. . ja. . and the acts there cited , where masters are lyable for servants , vid. tit . . lib. . feud . where vassals are oblig'd to present their servants to their superiors , if they have offended them : but since by this act masters are only to be lyable for the tennents unlaw , if he present them not . it may be doubted what this unlaw is , since in justice airs if the tennent was absent , he was ordinarly denunced fugitive ; for the justice court does not unlaw an absent defender , and therefore by this unlaw may be mean't what the tennent would be unlaw'd in , if he had been present , vid. stat. will. regis , cap. ▪ & . by this act these who are surety to the party injur'd , for assythment , may be called before the lords of council , either in session or out of session ; but this is now abrogated by the late constitution of the session , who are come in place of the lords of council who then were . the meaning of these words in the act ( and as for slaughter and mutilation , to keep the order of the act made thereupon of before ; ) is that slaughter and mutilation are not comprehended under this act , because by the . act , par. . ja. . no remission can be granted for these crimes , and therefore there can be no assythment . this act is further explained in crim. pract . tit . fire-raising ; but it is fit here to observe , that in these words , that particular justice courts shall be set thereto , as shall please the kings grace , his council , and the justices ; the word ( and ) is taken disjunctive , as is often in the civil law , and our statutes , l. . ff . de haered . instit. nota , the killing of thieves is declared no crime . king james the fifth , parl. . excommunication is here called the process of cursing , and excommunication used in time of popery to be granted for not payment of civil debt , or not performing of contracts , or not restoring of spuilȝied goods , is now in desuetude ( for all these were held to be mortal sins ; ) and by this act letters to poynd or appryze were to be granted thereupon ; and by the . act , par. . q. m. their moveable escheat falls to the king , if they ly under the process of excommunication for a year , the creditor being first payed , which acts are further enlarg'd by the . act . par. ja. . by which their whole rents and revenues are to be applyed to the use of the publick , and all gifts of escheat granted to the behove of the wife , children , or confidents of such as are excommunicated for popery , are declared null , act . par. . ja. . it may seem strange that excommunication repells ab agendo sed non a defendendo , and yet horning debars from both , though the person excommunicated be the greatest delinquent , being at gods horn , . july , . colstoun contra cranstoun , vid. observ . on act . par. . ja. . supra . this act is innovated and enlarged by the . par. ch. . sess. . act. . this act is in observance to this day , but it holds only in forrests noto●ly known to be such ; for if there was probable reason of doubting whether it be a forrest , the goods feeding in it will not be escheat for bygones , vid. leg. for. c. . § . . & sequen . because this act sayes , if any person be found putting their goods in pasturage in the kings forrest , they shall escheat the same ; therefore it seems reasonable that if goods be only found there , this is not suffici●nt to escheat them , since they might have strayed there , & dominus non tenetur ad poenam si animal ex seipso ingrediatur in locum prohibitum ut est forresta borel , de magistrat . edict . lib. . cap. . num . . vid. annot. on act par. ja. . supra . this act relates to act par. ja. . whereby hares are not to be kill'd in time of snow : and act par. ja. . and act par. ja. . whereby hares are not to be kill'd at any times by guns , girns , nets , or cross-bows , which last is yet in observance , and all these acts are reviv'd by a proclamation of council , in febr. . by the act par. ja· , it is ordain'd that the superior of ward lands or his donatar , shall find caution to leave the houses , orchyards , woods , stanks , parks , &c. in as good condition as they found them , they taking their sustentation , or using them in needful things , without waste or destruction , which is extended to all liferenters and conjunct-feers , who are ordain'd to find the like caution by this act. by which also , all sheriffs , stewards , magistrats within burgh , and spiritual men within their bounds , are also commanded to exact this caution . these acts are also extended to all such as have life-rent tacks from the heretors , without payment of any considerable duty , though the words of this act run only against such as have liferent infeftments ; but this act should not be extended to such as have liferent-tacks , for payment of an equivalent duty , qui sunt conductores & non usufructuarii ; for the heretor is rather oblig'd to entertain the houses to such tacks-men , than they to him , january . . laird of laidly contra boyd . but this is to be understood of such tacks-men , as pay a dewty equivalent to the rent , for else relicts would in place of liferents , take tacks during their life for any imaginary dewty , which should not free them from the finding of caution . in that case it was also found , that this act did oblige donatars of liferent-escheats , to find caution to maintain the houses , orchyards , &c. which fall under his gift ; but quid juris , if the fisk retain liferents so faln in his own hands , & peregr . de jur . fisc . tit . . num . . is of opinion , that usufructu sisco legato siscus non satisdat de utendo fruendo arbitrio boni viri ; but it is hard that the heir should be in a worse case by the crimes of the liferenter , or their going to the horn , so that his estate should be thereby expos'd to mis-managment : and albeit where a liferent is left to the fisk , caution may seem to be remitted by the intention of the party , yet that should not be extended to the case of its falling to the fisk , without his consent , and it rather seems , that since a donatar is ty'd to find caution , that therefore the fisk should . nota , there needs no precognition to be taken by an assize of the condition the houses were in conform to the act. par. i● . . for that act only ordains such precognitions to be taken when houses are ruinous within burgh , and the liferenters refuse to concur in re-building them , in which case the heretor is allow'd to repair , he finding caution to pay the liferenters the dewty that these houses pay'd formerly , march . . foulis contra allan . though this act ordains the sheriffs , and others who refuse to exact this caution , to be lyable to the heretor of the ward-lands , without mentioning that they shall be lyable to liferenters , or conjunct-fiars , yet doubtless they are lyable to them also for the damnage sustain'd , in not exacting this surety . though in some cases cautio juratoria be allow'd , yet it would not be allow'd here gail . lib. . obs . . for that caution cannot secure the heretor , and there is as little reason to receive it in this case , as in removings . but perez ▪ is of opinion , that cautio juratoria is receivable si offerens sit probatae & honestae vitae . there was likewise cautio usufructuaria by the civilians , & introducta est per senatus consultum in iis quae usu consumuntur , § . . just . de usufruct . & l. . ff . de usufructu earum rer . quae usu consum . but all this matter is learnedly treated by christin . ad consuetud mechli● . tit . . where he determines that the lesser and temporary expences are to be bestow'd by the liferenter , but that she will get 〈◊〉 from the heretor of these expences , quae perpetuam rei utilita . tem concernunt , if she advertise the heretor , that they were necessary , and first desir'd him to repair , but that she cannot by her reparation alter the form of the thing , though for the better , nor use it otherways than the proprietar himself did . by the former act ja. par. cap. . to which this relates , the liferenters are to find caution that they shall not destroy the orch-yards , woods , &c. from which it may be observ'd , that where woods are upon liferented lands , the liferenter as well as the conjunct-fiar , may make use of as much of the wood , or coal , as is necessary for her own use , since she is only restrain'd by this act from wasting ; and by the custom of some countreys , she cannot pretend right to trees fallen by winds or accidents , if the trees be such as are fit for sale , & in sylvâ caedua ita in●isionem facere potest ut ad fructum pertineat non vere ad destructionem vid. l. ex sylva . ff . de usufruct . which agrees with our law , by which the liferentrix has only right to as much of the coals or trees as are necessary for her own use ; but even this right is only due to her , whilst the land is the fiars , but does not hinder the fiar to sell his own land , craig . pag. . forestallers are these who buy goods before they come to an open mercat ; and regraters are properly only these who buy up all goods , that they may sell them again at dearer rates . but our law has us'd these two words promiscuously , though by this act such as buy any thing before it be presented to the mercat , or who buy it in the mercat ; but before the mercat be proclaim'd , which is call'd here the time of day of the mercat , are punish'd as forestallers ; yet there must be something of design proven , as if they should stand in the way upon a mercat day , or should every day cause buy up what were going to such a town , to hinder the traffick of that town ; for it were hard to make generally all who buy things going to a town , or a mercat forstalling , for that may be done either ignorantly , or necessarly . though the punishment here be imprisonment and escheating of the defenders moveables , yet by the act par. ja. . the punishment is ordain'd to be fourty pounds for the first fault , a hundred for the second , and escheating of moveables for the third ; and though severals have been found guilty of forstalling , as particularly upon the . of june . and the . of august that year ; yet i find no punishment follow'd . the chamberlain of old was the only judge in his chamberland-air , cap. stat. will. reg. but now the justices are only competent judges to this crime , they were call'd dardanarii by the civil law , and were punish'd poenâ extraordinariâ l. . ff . de extraor . crim . this act is innovated and enlarg'd by the act i sess. ch. par. . all officers within burgh are discharg'd to purchase lordships out of burgh , least they give dreadure to their neighbours ; by which they are as i conceive , discharg'd to be lords of session , or lord barons , or at least they lose their offices how soon they attain to these . each burgh does to this day compt in exchequer for their feu-dewty yearly , conform to this and other acts. it was thought that a pursuit against the magistrats of edinburgh , for compting for their common good upon this act , was not competent at the instance of a privat burgess , or of any save the lord thesaurer of the kingdom , who comes in place of the chamberlain air , though it was said to be actio popularis , and a species of suspectae tutelae ; but this would have given too great occasion to faction , and would have discourag'd magistracy too much , nor are such popular actions in matters of government to be easily allow'd under monarchy , though they are necessary in privat rights . though this act appoint such as trouble burrows in using their liberties , to be punish'd in justice courts , as common oppressors ▪ yet this is in desuetude , except the oppression ▪ be very attrocious ; but the ordinary remedy is now , either by actions of molestation , or declarator of property before the session , or by actions of ryot before the privy council . colonel borthwick having gotten a gift of this penal statute , pursu'd the malt-men criminally thereupon ; which pursuit was discharg'd by the council . upon a bill , and these statutes found to be in desuetude , and impracticable in this age , wherein malt cannot be sold for two shilling more than the price of the boll of bear , as this act appoints . by our law , all single escheats fall to the king , for bona mobilia sunt allodialia , and hold not of the ordinary superior , who has no right , jure proprio , to the escheats of such as dwell within his territory : and thus lords of regality have only right to such escheats by their erection from the king. but the liferent-escheats which fall either for civil or criminal causes , belong to immediat superiors respective , so that if a vassal who is at the horn , have lands holden of many superiors , each superior will have right to the land which holds of himself ; for feus being given for service , and the vassal being nullus in jure ; by his rebellion the feu returns to the superior , except in the case of treason , in which it falls to the king. observe from this act , that the lords of articles are judges to processes in the first instance , but the debate must be resum'd to the parliament . by this act justice-airs and courts are peremptor at the second diet ; but by the act par. ja. . they are peremptor at the first diet , and parties not appearing now are unlaw'd if pursuers , and are declar'd fugitive if defenders , at the first diet. vid. observ . on act par. ja. . supra . this act relates to another act of parliament , dated the . of july . but there is no parliament amongst our printed laws of that date . though by this act depredations , reiffs and spuilȝies , are ordain'd to be first civily pursu'd ; yet the justices use to sustain criminal pursuits for these causes in the first instance ; except a defence be propon'd upon matter of right , as if the defender alleadg'd he had a disposition , or other right ; and in these cases the justices superceed to give answer to the criminal pursuit , till the civil right and title be first discust ; and this the privy council uses to do in riots pursu'd before them . king james the fifth , parl. . after many alterations observ'd by me in the annot. on act par. ja. . and act par. ja. . at last the session was establish'd in the way it now is by king james the fifth , in this his fifth parliament , and is ordain'd to consist of fourteen lords , seven whereof were to be of the clergy , or spiritual ; and seven temporal with the president , who was to be of the clergy ; but since the abolition of popery , they are all seculars or laicks , though sometimes bishops were extraordinary lords ; and though this act of parliament appoints the half to be spiritual , and the half temporal , with a president ; yet by the a●t par. ja. . it is declar'd it shall be lawful to the king to present any able person , whether he be of the spiritual or temporal state. vid. observ , on act par. ch. . the present lords are ordain'd to have all the priviledges that the lords of session ( for so they were call'd in the reign of king james the second ) had formerly ; and therefore it is alleaged , that since appeals could not be received from them , that they cannot be received from the lords of council and session , as was formerly observed , act par. ja. . the chancellor when present , is to preceed , and because he preceeds , therefore he gives his vote last ; and because it was controverted , whether he was to be president in the parliament , therefore by the act par. ch. . he is declar'd to be president in all courts , and he did preceed by vertue of this act in exchequer , till he was discharg'd by his majesty by a letter in anno . these words , and sicklike other lords as shall please the king's grace to subjoyn to them of his great council , who shall have vote , to the number of , or . are all the warrand that there is for nominating the extraordinary lords of session , who cannot exceed . they are still named by a letter from the king , as the ordinary lords are , but they are not examined like them ; and these extraordinary lords are marked in the books of sederunt after all the ordinary lords . these words , and the lords to subscrive all deliverances , and none other , is all the warrand that was for the lords subscriving all the bills for raising summonds before the criminal court , but i think these general words should be restricted , secundum subjectam materiam , as all general words in law ought to be , for we see that notwithstanding of these general words , the warrands for raising summonds before the privy council are subscrived only by privy counsellors , and now the justices are only in use to subscrive their own bills , though the other lords of session are not excluded from that power . this act is the warrand that the lords have for making acts of sederunt , which were so called , because the lords sitting are marked , sederunt such and such men ; but these acts are to reach no further than the ordering of forms of process , or the regulating their own house , and therefore this act sayes , for advising and making of their rules and institutes for the order of justice ; this same power is almost allow'd by all nations to their supream judicatures , vin. comment . ad § . . inst. lib. . tit . . christin . vol. . decis . . num . . this division of the kingdom , in order to the calling causes , is now in desuetude ; for all causes are now enrolled according to the order of the returns of the process , vid. act. . sess. . par. . ch. . artic. . no session sits now on munday , and so this act is in desuetude ; suspensions are called on tuesday and wednesday , and ordinary actions upon thursday , friday , and saturnday . the friday was allotted for the causes of the king and queen , and the actions of ministers and strangers ; but by the regulations the kings causes may be call'd on any day , the party defender being advertis'd . dayes before , of the particular day on which it is to be called . it has been doubted before this act , whether the queens causes should enjoy the priviledge of the kings causes ; and the priviledge is by this act extended to her , & ita augusti privilegia ad augustam sunt extendenda , l. . ss . de legibus . now the lords sit from . to . and they sit down sometimes before . as occasion requires . nota , by this act parties were allow'd to plead their own cause , and they needed not have advocats , except they pleased , but no other party not contain'd in the summonds can have liberty to speak ; but the lords can now hinder parties to plead , or force them to have advocats , to shun confusion and nonsence . it seems also that though an action be to a mans behove he cannot be allow'd to speak , except his name be in the summonds . the order of tabulating summonds is now much alter'd , for no summonds are tabulated except actions of declarators , improbations , contraventions , and other actions at the king 's advocats instance , upon the back of which summonds he writes , tabuletur erga diem veneris proximè sequentem , and except this be written upon it , the action cannot be debated ; and some think that if the action be called without this , a decreet thereupon pronounced would be null . witnesses are now examin'd by one of the ordinary lords in the afternoon , as here , and that lord who sat last week in the outer-house does the next week examine witnesses . the quorum of the lords by this act is ten , either ordinary or extraordinary , for either make up the quorum ; but now eight lords with the president make a quorum , which alteration proceeds from the . act . par. ja. . nota . by this act that advising of processes cannot be recommended to any particular lord. nota . that by this act publication of witnesses is allow'd , else how is it ordain'd here that publication of witnesses should be before the hail auditor , and advocats were allow'd to see the depositions , and to debate against them , till the year . at which time this was discharg'd , upon pretext that advocats did spend too much time in debating against the depositions , and that witnesses depositions were more to be credited when no man was to see them , or know them , than when the persons interested were to see them , because it was probable they would take pains to please them : but we find great mistakes by not letting advocats see the depositions , since they might clear many things that seem inconsistent , and which depend upon other matters of fact ; and it 's rather presumeable that witnesses knowing that what they say is not to be seen , will take liberty to depone too liberally , the not publication also of the depositions tends much to make judge ▪ arbitrary , since the warrands whereon they proceed is not known ; and publication of testimonies i● a kind of confronting witnesses with the parties , which is oft-times very useful , and this publication is for these reasons allow'd by the civil law , and in most nations , vid. marant . de processus publicatione , and in england in all cases , and is even with us allow'd in some cases yet , as in falshood ▪ clerks to the signet are now called writers to the signet , but their fees specified by the next act are innovated by the regulations ; at first there was but one clerk of session , who was called the clerk of council , as is clear by the . act of this parliament , and he was chosen per vices , out of the writers to the signet ; but all the writers to the signet , or clerks of the signet , were at first admitted to be present at the decision of causes , whereof this act is a vestige ; thereafter there were two clerks of the session , and at last three , but lest their number should increase , by an unprinted act of parliament , it was declar'd that they could not be moe than three , notwithstanding whereof , in anno . the register appointed six , whereupon the king by his letter in anno . reduced them again to three , and now again there are six clerks , as before the year . it is appointed by this act , that deliverance upon bills presented to the session be only written by a writer to the council ( that it to say , a clerk of session ) and not by a writer to the signet . by the last words of this act it appears that an advocat may be ●●mpelled to plead for any man , except he can alledge that he 〈…〉 employed for the other party , or the like , &c. which is 〈…〉 the civil law , l. . c. de postulando . 〈…〉 present practice advocats and all remove at the advising 〈◊〉 the cause , though in england and france causes are openly advised , which discourages very much all arbitrariness . that advocats should propone all their dilators together the second time , is still ordered , but never observed ; for where the dilators are of importance , or intricat , the lords will allow them to be proponed separatly . by this act such as misrepresent the lords , or accuse them unjustly , either by a formal process , or to the king , , are to be punish'd arbitrarly by way of action , for they are here appointed to be called before the king , but such as dishonour or lightlie them , are to be punished by the lords themselves ; and the lords are in use to send such as contemn them or their orders to the castle , or tolbooth , or to ordain them to crave pardon upon their knees , &c. suitable to the offence . the lords are to this day free of taxations , conform to this act ; but of late if there be no exception of them in the acts imposing taxations , they are in use to get a letter from the king , declaring them free , though this may seem needless , because of . act par. . ch. . and the . act par. . ch. . though the precedency due to the wives of lords of the session , or advocats , be continued with them after their husbands death , which we derive from the civil law , l , faemina . ff . de senatoribus , yet immunity from taxes is not extended to their wives , stockman . decis . . king james the fifth , parliament . though regularly crimes die with the committers , and cannot be punish'd after their death , yet by this act it is ordain'd that treason may be pursu'd after the committers death , which holds only in treason committed against the kings person and common-wealth , that is to say , in perduellion , where there is a design against the kingdom , such as raising war , bringing in forreiners , &c. but holds not in simple treason , or laese majestie , such as are the keeping out of a castle , or in offering to detain the king's person prisoner upon any private account , for the words against the king's person , or common-weal are copulative ; neither does this act hold in statutory treason , which are meerly treasons by vertue of a statute , such as stealing in landed men , or murder under trust , &c. in all cases where treason is to be pursued after the death of the committer , it is necessary to call the appearand heir , because his right as appear and heir , is to be forefaulted by the sentence ; but though it is ordinarly believ'd that the bones of the committer must be raised and brought to the bar ; yet this is not necessary . nota , that the common or civil law is a sufficient warrand to sustain actions in this kingdom , because of its great equity , except where the same is over-ruled by a contrary law or custom . the civil law to which this act relates , is l. ult , ff . ad l. jul. maj . extinguitur crimen mortalitate nisi sorte quis majestatis reus suerit . it has been much doubted amongst lawyers how far the delict or crime of the predecessor should infer action against their heirs , which may be resolv'd in these conclusions . . that all corporal punishment expires with the committer , nam noxa caput sequitur , instit . lib. . tit de nox , act. . per tot . & § . . . as to any civil conclusion , & quoad interesse pecuniarium ; the civil law did only sustain restitution against the heir in two cases , viz. if either litis-contestation had past in the defuncts own time , or if the heir had got advantage by the crime or delict of his predecessor , as if for instance , the stollen goods , or the money conceal'd by his predecessor had remain'd with him , § . non autem omnes . instit. de perpet . & temporal . action . . by the canon law the heir was lyable to refound the damnage done by the predecessor , though there was neither litis contestation past in his time , nor did any advantage remain with his heir , cap : ult . ext . de sepult . cap. in literis ext . de rapt . and though the opinion of the canonists seem to the lawyers of this age more equitable , they thinking litis-contestation but a subtilty , yet i conceive that there was very much reason for the civil law to require litis-contestation , since if the defunct himself had been pursu'd he might have alleadg'd many things which might have defended him that were unknown to the heir ; as for instance , he might have alleadg'd that the sheep alledg'd to be stollen were intrometted with by the owners warrand , and might have cited witnesses who were present , which the heir could not know , and yet our practice follows the canon law , as more conscionable . i find that in the . council at constantinople , it was after debate found that origin and theodorus might be anathematiz'd after their death , though vigilius then pope of rome maintain'd , neminem post mortem condemnandum , and this occasion'd a great schism . there is interpos'd betwixt this and the next act a distinct act in the black impression , whereby the king and parliament ordain several acts past in the last parliament to be now pronounc'd and authoriz'd by his grace and the three estates , which has been left out , because the way of authorizing acts now , is only by his majesties touching them with the scepter , and if they be voted in a former session , they may be touch'd without any new vote or act ; but if they were past in a former parliament , they must have a vote , else they cannot be call'd the acts of the present parliament . the king here revock'd when he was in france , and his revocation is subscribed by a notar , which was at that time sufficient , but his supplying the solemnities by his kingly power , was unnecessary , for the king cannot supply the want of solemnities , either in his own or other mens acts or deeds , there is little in this revocation different from what was in former revocations , save that , o. the king revocks all tacks and assedations made for longer space than five years ; which article is also repeated in the act par. ja. . and the reason of it is , because there is too great a restraint laid upon the king , by these long tacks , hindering him thereby to improve his property , or casualty ; for which reason likewise , long tacks set by tutors , are not allow'd , and though this may seem only to extend to tacks sett by kings in their minority ; yet by the same reason , and upon the same act , a tack of the customs set by the king in his majority , to fleming and peebles , was reduced before the exchequer , november . . because the tack was sett for seven years . o. the king here revocks all rights made by him , by evil or false suggestion , or by expreeming of a false cause , though ordinarly false narratives do not reduce deeds betwixt majors ; this lawyers terms ex suppressione veri & expressione falsi ; and this article of revocation , agrees with the civil law , vid. tit . c. de precib . offerend . & tit . c. si contra jus vel utilit . public . his majesty here revocks all tacks and assedations made in his minority for longer space than five years , which is likwise a clause repeated in all the posterior revocations , and though it may seem , that no deed done by a minor in his minority , is revockable , except lesion could be alleadg'd ; yet craig is of opinion , that the very setting of a tack is a lesion , though it be not set under the true value , minorem enim laedi puto quod rei suae liberâ administratione prohibentur lib. . dieg , . the three head-courts to be held by sheriffs , &c. conform to this act , are as follows ; the first is upon the first tuesday after the fourteenth of january , which is the first tuesday after the twelfth day of yule : the second court is upon the first tuesday after law-sunday : the third is upon the first tuesday after the twenty ninth of september , which is michaelmas day ; but now they need not writ any excuse to the king , or council , if they be not personally present . this act makes a difference betwixt such as owe sute and presence , and these who owe sute only ; all such barons and free-holders as owe sute and presence , ought to be present in these head courts ; but this act determines not who owe sute and presence : and though the cap. stat. rob . statutes that none owe sute and presence , but these who are expresly lyable thereto by the●r infeftments ; yet by our present practice , vassals of ward lands , and consequently of taxt ward lands , are also lyable to compear in the superiours head courts , without any citation , though they be not c●ted ; and though this be not exprest in their infeftment , for hoc mest , in the nature of their holding , but vass●ls who hold ble●sh or ●eu , are not oblig'd to compear without citation , except they be thereto ty'd by their infeftment , march . . bishop of aberdeen contra his vassals . and by this act also , the infeftment is made the rule of compearance ; these who owe sute only , are only oblig'd to send an able man to attend , and serve upon inquests ; and ordinarly charters bear tres sectas curiae . this act appointing sheriff-deputs , and all other deputs to be sworn yearly is in desuetude . this act appointing all executions even of letters , by warrand of inferiour courts to be stamped , was running in desuetude , till it was revived by a decision in january . where an execution proceeding upon a warrand before an inferiour court , was found not sufficient , because not stamped , and horning and other executions before the lords were always null by way of action , if not stamped , july . . this act appoints that all mayors and officers shall have a signet , bearing the first letters of their name , or some other mark that shall be universally known : and therefore , though the executions bear that they were stamped , yet if they do not appear to be stamped , the executions may be quarrell'd as null , especially if they be recent , even as testaments were null by the civil law , if they did not appear to have formam insculptamque signi imaginem , l. . § . . qui testament . fac . but on the contrary , if the executions bear not that they were stamped , they will not be valid , though they appear to be stamped , because another than the messenger might have affix'd that stamp , vid. observ . on act par. ja. . albeit this act appoints all such as execute sheriffs or barons precepts , &c. to leave copies ; yet it has been found , that the execution of a barons verbal precept needs no writ , but m●y be prov'd by witnesses , but this was betwixt a baron and his tennents , where there needed no written precepts ; whereas this act requiring written executions , is only to be interpreted , ' where there are written precepts , because it says they shall indorse their executions ; and there can be no indorsation , where there is no written precept . it is requir'd by this act , that the executor should show the letters , which are his warrand , and that he should offer a copy to the servants , and yet both these are in desuetude . this act requires six knocks , and the affixing of a copy upon the most patent door of the defenders dwelling house , which the lords found was only in the case where there could be no entry , but found that there was no necessity of knocking when the door 〈◊〉 patent , and servants found therein , december . . counte● 〈◊〉 cassils contra the earl of roxburgh ; but it may be doubted still , whether six knocks be necessary where the door is patent , but no servants within , and the act says only , that if they get no entress , they shall knock ; though a man may be cited in an ordinary action , by a copy left at the inn where he stayed fourty days ; yet a man cannot be denunc'd upon a copy left at his inn , which is so determined in odium of his escheat , november . . it has been doubted , whether a messengers execution , bearing that he came to the defenders house , and was by force keeped out , so that he could not give a personal citation ; if in that case the defender should be holden pro confesso , as personally apprehended , it being offered to be proven that he was really within , and some of the lords were of opinion , that he should be holden as confest , the messenger proving that he was within ; or if the execution had born that he and the witnesses had given a particular evidence of their knowledge of his being within . othe●s thought that he should be holden as confest , unless he could instruct that he was alibi , in regard of the contumacy . but most resolv'd , that holding as confest , being a solemn and important certification , peculiar to scotland that the assertion of the messenger and his execution , should not be sufficient , nor put the defender to alleadge alibi , but that warrand should be granted to cite at the mercat cross , with certification to be holden as confest , july . . lindsay and swinton contra inglis . this order of citing , first p●rsonally , and failȝing thereof , at the dwelling-house , was allow'd by the civil law , l. . § . . ff . de lib. adgno . and all the●e practical questions are much cleared by christ. ad leges mechlin . lib. primo , tit . . articulo . in fine , where it will be found that the being holden pro confesso , is not a certification peculiar to our nation , for other places use it , as brabant . this act appointing all notars to be examined by the sheriff , and that the sheriff keep a book containing their subscriptions , is in desuetude . this act appointing all seasins upon precepts out of the chancellary , to be given by sheriff clerks and their deputs , is declared by the act par. ja. . to extend only to precepts past upon retours , and not to seasins past upon other precepts ; and it is very observable , that though that last act narrats that this act appoints such seasins to be taken by sheriffs and their clerks , yet there is no mention here of sheriffs , but only of sheriff clerks , and yet the lords of session do now find seasines null , ope exceptionis , except they be given both by sheriffs as baillies , and sheriff clerks as notars . the reason why seasins upon retours must be given by the sheriffs is , because he is to answer for the retour'd dewty , for which he ordinarly takes surety when he gives seasines , and at the delivery of the precept , there is a note made by the director of the chancellary in the responde book , bearing the sums for which the sheriff is to take surety , and he is to be charg'd , and compts therefore yearly in exchequer by the act par. ja. . and act par. and act par. ja. . this act is in desuetude since the registers were introduced in anno . falsifying the kings charter , or the counterfeiting of it , was of old treason , but the falsifying the charter of a privat person was only to be punish'd by mutilation , r. m. lib. . cap. . and thereafter , by the losse of the right hand , statut. alex. cap. . by this act all falshood is punishable conform to the old statutes , which are these i related , and conform to the civil , and canon laws , and that was deportatio cum publicatione bonorum , l. . § . ult . ff . ad l. cornel. de falsis , but because this act relates only to false instruments , therefore by the act par. . q. m. it is extended to all evidents , but because both these acts struck only against false notars ; therefore by the act par. . ja. . all forgers of any writs , and all who are in accession thereto , are to be punish'd , and death is the ordinary punishment with us , though sometimes , if the matter be small , the punishment is lessened . as to false witnesses , vid. tract . crim. tit . falshood . by this act there must be still instruments taken in the hands of the clerk of court , if any be taken at all ; but if the party be jealous of the clerk of court , he may take another notar with him , and take also instruments in his hands , after the form and manner prescribed by this act. notwithstanding that by this act no commission can be granted to apprize lands , or serve brieves to any but to the sheriff if heretable , yet it is ordinary now for the lords to grant commissions to their macers , in both these cases , who are thereby made sheriffs in that part , and this act of parliament being objected against struans service , feb. . it was found to be in desuetude . leasing-making betwixt the king and his people , is punish'd by tinsel , or loss of life and goods , by the act par. ja. . and by this act it is ordain'd , that such as make leasings of his majesty to his barons and great men , shall be punished in the same way as they who make leasings to his majesty of his barons and lieges , and though there seem'd a clear parity of reason for this , before the act , and that eadem est natura & idem est affectus correlativorum ; yet our predecessors would not extend crimes by consequence , and by the act par. ja. . the hearing and not revealing , and apprehending such leasing-makers , is punish'd as leasing-making . by this act there is an indemnity granted under the name of a general remission ; but though in general remissions and indemnities there needs no extract be taken of the general pardon , yet here every man is to take an extract of the pardon . nota , that though such as keep correspondence with rebels after their guilt , be punishable as traitors , yet here such only as kept intelligence with the dowglasses , and with kilspindie their ●am , which is an old word signifying cousine , after the doom of forfaultor against them , are declared punishable , and this seems just where the crimes were not clearly understood by the people to be such . king james the fifth parliament . by this act there ought to be a constant vice-president in the session , but this is in desuetude ; for vice-presidents are chosen by the lords in absence of the president , and thus the lord stairs was chosen vice-president in sir john gilmor's absence , . likeas , though by this act the eldest lord is to be president in absence of the vice-president , yet now in absence of the president the vote of the lords elects him who is to preside in his place . it is also observable that our kings have been so jealous of suffering any act of the pope to have authority , without being ratified by them as kings , that the popes ratification of the colledge of justice being thought convenient , because of the assignation of some ecclesiastick benefices , for its better support , the king does in this act ratifie and confirm the popes ratification of the king 's first act. sheriffs , stewards , &c. compear yet yearly in exchequer , and make their aeque , and the time of their compearance is in july , vid. supra obs . on act . par. . ja. . bribing is expresly discharged by the cap , stat. k. will. and by the cap stat . rob. . they who take lands to champart , are to be in the kings will , and lose their employment for all their life-time . champart is a ●rench word , signifying a part of the land controverted , so that whosoever takes part of the thing controverted , per pactum de quotâ litis , falls under that law. by this act whoever takes rewards or buds are punishable by tinsel of honour , fame , and dignity ; and by the act , par. ja. . the taking by their wives and servants , which was here omitted , is punishable by infamy , deprivation , and confiscation of all the defenders moveables . by this act , giving of partial counsel , that is to say , consulting , is declared a species of bribing , though nothing be taken , at least it is punishable as bribing , so that it seems a judge may not consult albeit he abstain from judging in that cause . these words , that he shall take no further rewards nor buds than is permitted of the law , are set down to shew that judges may lawfully take the quota allowed by law to judges , which we call sentence-money , and the civil law sportulae . the taking bribes was in the civil law punish'd per l. jul. repetundarum , l. , , . d. t. and the punishment was death , if money was taken to pronounce a capital sentence , or confiscation of goods , and banishment in other cases , l. . § . . eod . tit . but by the doctors , and in our law , this crime is called barratrie . such as defame judges as bribers , are punished here as bribers ; but besides the poena talionis which is inflicted upon all such as murmure against judges ; there is likewise an arbitrary punishment adjected , and either the king or his council are judges competent to the cognition of this crime by this act. nota , that if a spiritual man murmure against any judge , he has the priviledge to be called before his own judge ordinar by this act ; but this revocatio sori is not now in use since the reformation . base infeftments are these which are given to be holden of the disponer , which are valid rights in themselves , though they never attain possession , for else they could not give good interest to reduce the rights that may hinder them to attain possession . these base infeftments are introduced with us contrary to the principles of the feudal law , which allows no feudal conveyance without the superiors consent , and were introduc'd rather by accident than upon design . this act upon which they are founded being introduc'd rather to suppress simulate infeftments , than to strengthen base infeftments , and the great priviledges arising to them now , did insensibly grow from the favour which our law shewed alwayes to lawful creditors , even as the priviledge of necessitating superiors to receive comprizers did . base infeftments , though yet wanting possession , are preferable to posterior arrestments , but they are not preferred to posterior life-rent escheats , except they attained possession in cursu rebellionis , feb , . . miln contra clerkson ; and before this act of parliament , . they were still preferr'd to posterior publick infeftments : but by this act it is statuted that publick infeftments cloathed with possession for year and day shall be preferr'd to base infeftments not cloathed with possession , though prior , which praesumptione juris & de jure , are by this declared to be simulate rights . but though this act requires that the publick posterior infeftment be granted for onerous causes , yet a publick posterior infeftment , though gratuitous , will be preferr'd , march , . law con . balgownie . but this may be doubted because of this act , and in that decision the publick infeftment was preferr'd , because inhibition had follow'd thereupon , for any act that can take off the presumption of simulation , and which will make the infeftment any way to be known , doth fortifie the infeftment , as well as if possession had follow'd ; and so an inhibition following upon the debt for which the base infeftment was granted , will prefer that infeftment to a posterior publick infeftment , without necessity to reduce ex capite inhibitionis , and an infeftment following upon an appryzing was without reduction ex capite inhibitionis , preferr'd to a prior base infeftment , though clad with possession , because the appryzing follow'd upon a debt whereupon inhibition was serv'd before that base infeftment , the said of march , . and likewise , if other diligence was done , or the time was so short that a years possession could not be attain'd , then a terms possession was sustain'd ; or though there followed no possession at all , the base infeftment will be preferr'd to a posterior publick infeftment interveening , before the possession could be acquir'd , feb. . possession likewise of a part of the land sustains the infeftment for all , but this should hold only in lands erected in a barony , or such wherein one seasing may serve , feb. . ker contra ker. hope in his lesser practiques is of opinion , that in the concourse of two base infeftments , the prior will be preferr'd in petitorio , though no possession follow'd thereupon , which seems to be reasonable , because before this act of parliament , jus illud obtinebat , and by this act , nihil quoad hoc est innovatum ; yet de practicâ a base infeftment is as null till it be cloathed with possession , as an infeftment à me is before it be confirmed . if neither of the two base infeftments be cloathed with possession prior in tempore est prior in jure . the husbands possession was alledg'd to be the wifes possession as to her principal , but not quoad her additional joynture , decemb. . lady craig contra lord loure ; and in our law the husbands possession is accounted the wifes possession whether the husband possest by himself , or by wod-setters , or comprizers deriving right from him , though it was alledg'd that this was not the husbands possession , they having possest proprio jure , which priviledge is not only introduc'd ob savorem detis , but because she could not possess , for which reason likewise a base infeftment for relief is preferr'd to a posterior publick infeftment upon a comprizing , albeit the cautioner was only charged to make payment , which was found a sufficient distress , july , . as also , after a solemn dispute , the lords did prefer a prior base infeftment for warrandice , though not cloathed with natural possession to a posterior publick infeftment , january , . brown contra scot. but here the infeftment of warrandice was given simul & semel with the infeftment of the principal lands , so that there remains still a doubt as to infeftments of warrandice given ex intervallo , but infeftments for relief were not found sufficiently cloath'd with possession , by payment of the sums for which they were granted as infeftments of warrandice are by possession of the principal lands , because it was alledg'd that it was more natural that the possession of one land should cloath the infeftment of another , than that possession of annualrents should cloath an infeftment of land , and that there might be greater collusion in payment of sums , than in possessing of lands , because creditors might alter their sums , and take new assignations , or retire old rights , whereas no man could quite his principal lands , june , . cramond contra the tennents of east-barns . but a fathers possession as life-renter was not sufficient to prefer a base infeftment given to the son to a posterior publick infeftment granted to a second wife , or to any creditor the like in a base infeftment granted by a good-sir to his oye by the daughter , which was not found sufficient , being cloathed with the foresaid civil possession of the good-sirs reservation of life-rent to exclude a posterior publick infeftment , of july , . and this possession by the husband , or father , or disponer , is called possessio per constitutum , and is not favourable in a competition with other creditors , and therefore a factory granted by the father to the son to uplift the mails and duties of lands dispon'd , to be holden base by the son of the father , was not found sufficient to cloath the sons infeftment , though there were several processes intented upon the factory , july , . this act requires natural possession , by labouring the land , or civil , by uplifting the mails and duties ; and before registers were invented , that kind of possession was only able to put their creditors in mala fide , but though civil possession hath been found sufficient , such as obtaining of decreets , and payment of annualrents , albeit the same had no relation to the infeftment of annualrent , but was only relative to the bond whereupon the infeftment followed ; yet the setting of a back-tack by the accepter of a wodset , hath not been found sufficient to maintain a base infeftment , except payment of the back-tack-duty had likewise followed , so that it appears that possessio naturalis vel civilis sufficit sed non illa quae a doctoribus dicitur civilissima , as is a back-tack . by this act also , such as make double dispositions to defraud their creditors , shall be declared infamous , and shall be punished in their persons and goods at the kings pleasure , and this punishment is extended against such as make double assignations , and the act par. ja. . bears , that no dewty shall be dispon'd to two sundry persons , which is crimen stellionatus by the law , and though this act does not make double dispositions to be crimen stellionatus , yet it is so in effect ; but the civil law distinguisheth thus , l. quin. duobus ff . ad l. corn. de falso qui rem unant duobus vendidit dicens rem esse suam tenetur falsi , at si non dicat esse suam tenetur stellionatus . though by this act superiours receiving double resignations are guilty and punishable as said is , and seing to receive such resignations , is a great prejudice , because it puts the parties to great expences , and that the superior is presum'd to get , and may get advantage by accepting such double resignations , or contributing to the making of such double rights , therefore they ought likewise to be lyable in damnage and interest to the party injured . by this act it is statuted , that a charge to enter heir , may be directed against the successors of the defuncts ( they being of perfect age ) to enter to their lands , within fourty days , year and day being first past , after the decease of the predecessor , and a comprizing being led upon their failȝing to enter , the same shall be as valid as if they were infeft . nota , though this act bears the being of perfect age , yet minors may be validly charged to enter heir de practica ; but seing this act is only made against such as may enter , but wilfully ly out : it might have been doubted whether minors in ward-lands may be charged to enter heir , for these cannot enter till they be twenty one years compleat ; but by our constant practique they may be charged , since this is necessary for compleating the creditors diligence . nota , that this act does not appoint that generally such execution should pass against the appearand heir , as if he were entred , but only that his land may be apprized ; and therefore quaeritur what execution may be gotten against his moveable heirship , and it may be urg'd that the same may be affected , as the defuncts other moveables ; for though they be heirship , respectu haeredis , yet they are but moveables respectu creditoris , for they become only heirship after they are drawn ; and yet it hath been found , that the moveable-heirship may be adjudg'd , and by that decision it would appear , that they can only be affected by apprising ; but there is a warrand wanting in this act for apprising them ; there is an act of sederunt anno . allowing charges to enter heir , to be rais'd within the year and day , but the summons thereupon must be execute after the year and day expire , but not till the fourty days expire after the execution of the charge ; but this annus deliberandi , being introduced in favours of the appearand heir , he may omit the same , and renunce within the year if he pleaseth ; neither can an adjudication following within the year be challeng'd ex eo capite , july . . albeit that the said act appoints , that a charge to enter heir may be rais'd after year and day expire , after the defuncts death ; yet the year and day must only be computed from the appearand heirs birth , if he was posthume spots . tit . heirs , livingstoun contra houlerton , & de jure civili posthumus non habetur pro nato cum de incommodo ejus agitur l. etiam § . ille , ff . de minor . though the meaning of this act seems to be , that where tradesmen , who are free-men , either desert their work , or delays the same , the owner of the work may choose other free-men , or complain to the deacon ; yet it was found in july . by the council in the case of borlands against the masons of edinburgh , that where a free man either deserted or delay'd , the owner of the work might imploy any , even unfree-men ; though it was alleadg'd , it was not just to punish all the free-men for the fault of one ; nor was it convenient for the common-wealth , that unfree-men should be admitted , for whose work none can be answerable . this act is verbatim , formerly set down , act par. . ja. . by the civil law , testaments and all writs of importance were to be seal'd ; and with us the appending of the seal without the subscription of the party was sufficient , r. m. lib. . cap. . num . , & . and papers were then tri'd by comparison of seals , as now by comparison of subscriptions ; but by this act the subscription of the party and witnesses is likewise to be added with the seal , and thereafter , k. ja. par. . act . all papers of importance are to be both seal'd and subscrived ; but now they need only be subscrived without being seal'd ; and though by this act , the subscription of the notar is sufficient ; yet by that act two notars and four witnesses are requisit , where the party cannot write . by the act par. . ja. . writs that are to be registrated , need not be sealed , but there is no express law dispensing with sealing , as to other papers which need no registration , so that the not sealing is in these warranted only by uncontroverted custom . fire-rising , and ravishing of women are to be put under surety , as mutilation and slaughter , by this act ; from which , some concluded that mutilation was punishable as these crimes were ; but the act appoint not the punishment to be the same , but the way of finding caution to be the same , and by the old law , stat. rob. cap. . mutilation is to be proceeded against as murder ; but yet licet redimere vitam , and it is not declar'd there punishable by death , and in all the journal books , no man was ever punish'd with death for mutilation ; the punishment being ordinarly confiscation of moveables , and assythment to the party ; nor see i any warrand for confiscation of moveables , since the crime is not punishable by death , nor any express statute to warrand confiscation ; i find that mutilation is infer'd upon the cutting of a thumb or finger , though digitus was alleadg'd not to be membrum ; but pars membri , june . . and it was formerly found , july . . ch●in contra mowat ; but though this may infer mutilation ; yet i conceive it would not infer dis-membration , vid. observ . on act par. ja. . by this act all the lieges may sell fleshes on sunday , munday , and thursday , but thereafter all mercats being discharg'd on holy-days , there is an act of town council , ordaining these landward fleshers to bring in their fleshes only on tuesday , thursday and saturnday , and not to sell in pieces , but in quarters , which is confirm'd by a decreet of the session , july . . and ratifi'd in the parliament , . from this act it is clear that the acts of parliament cannot be re-printed without the kings special approbation even though the lord register consent ; for else why needed the register get a warrand by this act , and the custom alwise is , that the register gets a special warrand for that effect , and the council the of november . found that the kings printer having re-printed the acts of parliament without such a special warrand , the copies were confiscable and should be burnt , and the reason of this is , because of the great danger that may arise from the wrong printing of acts of parliament , the difference of a word altering the sense to a contrariety ; but yet it seems the register should have liberty to re-print them , since he is answerable for all the errors ; and therefore we see that the register used still to subjoin his subscription to the acts he re-prints , as is to be seen at the end of the par. ja. . where sir john skeen's ordinary subscription is set down at the end of the acts which he reprinted ; and sir john hay's at the end of the first parliament , ch. . q. mary . parliament iii. all the acts of this parliament except the first , are temporary , for encouraging of such as were to hazard their lives in that army , and are renewed fully by three equipollent acts , viz. acts , , , par. ja. . by this act church-men are to have right to the fruits on the ground the year they die , and to the annat thereafter ; and from this it is to be observ'd , that the annat was a casualty that befel by and attour the fruits that were on the ground , which belonged to the church-men jure proprio ; and formerly the church-men had right to all the fruits of the year , if he surviv'd the first of january ; for in beneficiis annus inceptus habetur pro completo ; but if he survived michaelmas , he had right to that whole year , jure proprio , and the half of the subsequent year , jure annatae ; but now by the act sess. par. ch. . if the incumbents survive whitsunday , they have right to the preceeding half year by their own right , and to the next half year by their ann ; but if they survive michaelmas , they have right to the whole year ( viz. from january to january ) by their own right , and to the half of the other year as ann ; and though it may seem incongruous , that a minister living till the last day before michaelmas , gets no more than he who lives till the day after whitsunday ; yet this is regulated in this case , as it is in all liferents , and this is allow'd them for the support of their poor families , for that act declares that the same shall belong to their executors , without necessity of a confirmation ; and though this act declares , that the ann is to belong to their executors , yet in effect that is not well exprest , for it belongs to their nearest of kin and wife , though they be not nominated , nor confirmed executors . if there be bairns the ann is equally divided betwixt them and the wife ; but if there be no bairns , it is divided equally betwixt the wife and nearest of kin , she having right in that case to a half , and not to the whole , because the ann was of old introduc'd in favours of the nearest of kin , as appears by this act , for church-men had no wives under popery , when this ann was introduced , june . . elizabeth scremgeor con . the executors of her husband . though this ann falls to bishops and ministers , who die incumbents , yet it belongs not to such as renunce voluntarly their benefices , as was found in bishop lightoun's case ; and neither manse nor gleib fall under the ann , for the last incumbents executors have no right to the gleib , except the same was sown before his decease , july . . colvil contra the lord balmerino . the reason why michaelmas , and not martinmas is made the term in this case is , because ministers stipends are payable out of the teinds , or by somewhat which is come in place of them ; and therefore michaelmas should have been the ordinary term , and generally in payment of all stipends , the terms of whitsunday , because the sowing is then ended , and michaelmas , because the corns are then separated from the ground , are the legal terms for payment of stipends . the foresaid act allows an ann to bishops , though the act of the general assembly , and the kings letter in anno ( by which anns were first establish'd as they now are ) did not mention them , and under the bishops ann falls only the quots of such testaments as were actually confirm'd in his lifetime , or during his ann , july . . captain wisheart contra the bishop of edinburgh : by the canon law , the annat was a quota payable to the pope and colledge of cardinals , by every intrant , out of his benefice , vid. tush . concl . . but a casualty like ours is payable in the protestant churches of germany , vide carpzov . jus consistoriale tit . de decimis . it may be doubted whether that maxim annus inceptus habetur pro completo , does yet hold good in other beneficiary cases ; for though it be altered by act of parliament , quoad annats ; yet where there is no act of parliament , why should not the old rule hold . but i rather think that the act extends to all benefic'd persons , albeit the rubrick mentions only bishops and ministers , and so there are two errors in the rubrick of the said act , one , in that it mentions only bishops and ministers ; another , in that it mentions only their executors , and not their relict , or nearest of kin ; and the rubrick should have born , act regulating the ann of benefic'd persons , which shews also how weak the argument is , a rubro ad nigrum . the ancient bishops allow'd sometimes the uplifting of the first years rents of benefices , for assisting christian princes against infidels , but the popes thereafter reserv'd them to the use of the roman see , upon pretext to supply the general necessities of the church . pope john . extravag . suscepti . de elect . was in this follow'd by boniface the . who stated them in an ordinary revenue , till the council of basil oppos'd the same ; and still many learn'd doctors of the romish church it self condemn'd them as simoniacal , whereupon the french kings did by concordats , force the pope to pass from the same in france . they were call'd annats , anns , or annals , because they were fructus primi anni ; and it seems with us , they were not at the popes disposal absolutely , else this act of parliament could not have dispos'd upon them . but it seems our kings have in parliament assum'd to themselves , what others settled by concordats with the popes , as may appear in all the regalia throughout the whole old acts of parliament . the whole doctrine of annats is excellently treated by antonius nassa de materia annatarum . but i conceive our ann which is a half years stipend , comes from the saxon reform'd church , wherein ultra salarium quod defunctus aecclesiae minister promeruit ex singulari beneficio viduae ac liberis dimidius gratiae annus assignetur carpzov . jurisp. consistor . lib. . tit . . it was introduc'd there in anno . a little before king james introduc'd it here by the letter to the general-assembly in montrose . by this act , such as did dy in that army were to have their ward , non-entress , relief and marriage freely from the queen . it is observable , that though usually such acts are made when our armies are in procinctu going to battel ; and though the king nor his exchequer seek no advantage by casualties in such cases , yet regularly it is no defence in law against a ward or marriage , that he by whose death they were sought , were killed in the kings service . though where there is a governour , the style of acts of parliament made by him , is , the governour with the advice of the three estates ; yet this act says , by the consent of the governour , and the consent of the noblemen , both spiritual and temporal ; by which words also it is clear , that the lords of the clergy are to be accounted as noblemen , and so are to find caution under the same pains as noblemen , and to pay publick burdens as noblemen , &c. queen mary , parliament . by this act , these who are excommunicated , and continues so for a year , for any cause , lose their moveables , creditors being first paid ; and by the act par. ja. . they are to lose their liferent-escheats , if they be excommunicated for religion , vid. supra . observ . on act par. ja. . vid. my criminal tract . tit . treason . this act inflicting the pain of death , and confiscation of moveables , upon such as shoot at deer wild-fowl , or wild-beasts , is deservedly in desuetude . vid. infra observ . on act par. q. mary . this act and the instructions subsequent to it , were but temporary remedies , for repairing lands burnt at that time by the english invasion ; but though only parliaments can regularly invert property , yet the privy council do force heretors to sell burnt tenements , if they will not repair them themselves , to the end other heretors , and the publick advantage of the burgh may not be prejudg'd ; and this the council did in anno . when all the houses near the parliament closs were burnt , and this is conform to a power granted by the act sess. par. ch. . by which it is appointed that the provost and baillies may charge all persons who have the property of such ruinous lands , to repair them within year and day , and if they refuse , the magistrats may value and sell , vid. observations on the act par. . ja. . queen mary , parl. . this act as to the prices of wine is in desuetude , but not in so far as concerns the mixing of wines , which by the opinion of the civilians is a species of falshood , and is punishable as such , carpz . de falso . this act against abominable oaths is enlarg'd , act . par. . ja. . vide my crim. observ . tit. blasphemy , § . . this act against perturbers of the kirk is enlarg'd , act . par. . ja. . for that act reaches all tumults in kirk-yards , and the punishment in that act extends to confiscation of all the offenders moveables . it is observable from this act , that children are only to be scourged for such crimes , minority lessening the punishment , and all within years are accounted children . vid. crim. obs . tit. bigamie . vid. crim. obs . tit. adultery , vid. crim. tit. falshood . notars are still according to this act examined and admitted by the lords , but are not presented by the sheriffs ; for now they are presented by the clerk to the notars , who gives in a bill for them to the lords . by this act the instruments of such as exerce the office of notar , not being lawfully admitted , are null , but yet if the pretended notar was habite and repute a notar , his instruments will be sustained . such as usurp the office of notars are punishable by this act as falsaries or forgers , yet i never observ'd that for this crime death was inflicted upon them . nota , it is observable from this and many other acts , that the acts are call'd the kings laws , and not laws made by the parliament , and the act related to , made by king james the . but not condescended upon here , is the act par. . ja. . it is observable from this act , that the secret council used by their own authority to make sumptuary laws , both as to meat and cloathing ; and by the act of council here related to , the contemners of the said act of council are to be punished in their persons and goods at the lord governours will ; and yet one of the accusations against the earl of middleton was , that the lord lorn being found guilty of treason , the time of the execution was referr'd to him , as being then the king's commissioner , which it became no subject to accept . printing is inter regalia , and so the king may discharge any man to print without his licence , vide fritch . de typographiae abusu , where he makes the regulation of the press to depend upon every magistrat by the law of nations , and printing may do as much mischief to the government as arms , and so the magistrate should have the command of the one as well as of the other , though i know it is most unjustly pretended by some republicans , that printing being a trade , no man can be debarr'd from the free use of it , except by parliament , in which their own consent is imply'd : we see also that the king allows his own printer only to print bibles , and other school books , &c. vide act par. ja. . against the sellers of erroneous books . queen mary , parliament . it is observable that this revocation of q. m. was under the privy seal , whereas other revocations are only under the king's hand , it differs in nothing else from the other revocations . in the first part of this act , reversions which were formerly , as all other writs sufficient , if sealed by the granters seal , are declared null , if they be not sealed and subscrived , and though it is here declared that if the party cannot subscrive , a notar may subscrive for him ; yet by the act par. ja. . it is requisite that there be two notars and four witnesses , in matters of importance , or heretage , where the party cannot write . by the second part it is declared that all reversions are null if they be not registrated , except reversions of land within burgh , which need no registration , and this is again enacted , act . par. . ja. . by this act reversions taken by way of instrument in the hands of the notar that gave the seasine , are as valid as reversions subscrived by the party himself , and registrat ; for according to the law then standing , reversions were sufficient , if subscrived by one notar , though the party did not subscrive , and instruments taken in the hand of the notar that gave the seasine were as sufficient as a reversion under a notars hand ; but since that act all reversions both without and within burgh should be signed by the party himself , or by two notars , and no reversion within burgh needs to be registrated , feb. . irwine contra corsen , which being found inconvenient , was thereafter first corrected by an act of sederunt , feb. . and now by the act , par ch. . by which they are ordain'd to be registrated in the town clerks books within dayes after the date thereof , except they be incorporated in the body of rights . though this act runs only against committers of slaughter , yet it holds in all criminal causes . if any man be out of the countrey , he must be cited upon days , but if he was in the countrey the time of the first citation , it is sufficient by this act that he be cited upon days ; and though this act says , that if he was eight days cited before his departure , he may be cited upon days to the second dyet ; yet it holds if he was in the countrey at the first citation , though he went immediatly out of the same . vid. crim. obs . tit. . of libels , part . vid. notes upon act . par. . ja. . the form of citing the nearest of kin is now introduced in the choosing of tutors dative by the exchequer , and is establish'd most iustly by the act , sess. . par. . ch. . though formerly the king might have granted tutories dative , without any citation of the nearest kins-men . nota by this act it is clear that a curator cannot by a privat renunciation of his office free himself , but he can only be freed by the judge , for though by the civil law tutors and curators were forced to accept , yet by our law they are not , but if they once accept , or administrat , though without a formal acceptance they are still lyable from the date of their administration , and not from the date of their nomination , and that which was at first voluntary becomes necessary . though this statute anent lentron be renewed , act . par. . ja. . and that the council used lately to grant dispensations , yet these penal statutes concerning lentron are now in desuetude . vid. observ . on act par. . ja. . and on acts , and . par. . ja. . these instruments of resignations are not only to be sealed by this act , but to be registrated , by the . act , sess. . par. . ch. . all warnings are by this act to be made only upon days , which holds , though the party be out of the countrey , because the act is general , though in other cases a party out of the countrey must be cited on days , feb. . m cbrair contra crighton ; and yet though this act be general , there needs no formal warning conform to this act from a tower or fortalice ( turris pinnata ) even though the possessor had a tack ; nor in lands liferented , for in these the heretor will get upon a bill letters from the lords , charging the present possessor to remove upon days , because towers and such houses belong not to labouring , nor are useful for it ; and this act was made in favours of labourers , and it were unreasonable that the heretor , after a life-rentrix is dead , should be put to all these delays for removing those who possess by a right , that is ipso jure expired . these words of this act appointing warnings to be made , either personally , or at their dwelling houses , and at the ground of the lands , are so to be interpreted , as that there must be still a copy left upon the ground of the land , or at his dwelling house , and upon the ground of the land , which citation upon the ground of the land , was , as it seems , made necessary , because in all real executions , quae praedia tangunt , copies must still be left upon the ground , and to the end that all who pretend to have real rights , and even sub-tennents may be thereby certiorated , feb. . craw contra craw. because this act ordains all warnings to be made days before whitsunday , and speaks not of another term , therefore the warning must be made before whitsunday , though the person warned be not oblig'd to remove by his tack till the martinmass , but execution must be superceeded till then , vid. july , . and december , . fowles contra tennents , and inglis contra tennents , june , . ramsay centra weir . though this act appoints these warnings to be made at the kirk doors of the paroch within which the land lyes , yet the lords have sustain'd warnings to be made at that kirk which was reputed the paroch , and where warnings were used to be made , though it was not truly the paroch kirk , january , . earl of argyle contra campbel ; and though by this act such warnings should be read in time of divine service ( that is to say , immediatly after sermon ) yet they sustain'd the warning , the execution bearing , that it was lawfully used , and the user mending his execution at the bar , of january , inter eosdem . though the reasons of advocation here exprest seem to hold only in actions of removing , because they are annex'd to this act , yet they hold generally in all advocations , vid. my crim. observ . tit. advocations ; and though the priviledge granted to advocats here of being only pursuable before the lords may only seem competent in removings , yet it is extended to all cases , and now they may advocat any action intented against them before inferior courts . i find that the advocats of vtright have the same priviledge , rub. de advocatis , art. . vide voet. de statutis , sect. . cap. . num . . where likewse he determines that this priviledge of exemption extends not to criminal cases , but that in these they may be pursu'd before inferiour judges , for these are not properly comprehended under the word actions , nor are statutes to be extended de casu in casum . this act is explain'd in the observations upon the act par. ja. . supra . and act par. sess. ch. . vid. crim . obser . tit . pursuers . of old when any right was quarrell'd as null , the nullity was sustain'd by way of exception or reply , and a day was allow'd to the defender to call his warrand , that is to say , the person who was his author , and who was bound in warrandice ; but now few nullities are regulariter received by exception , but by way of reduction , to the end the authors may be call'd , who may defend him ; and ordinarly the defender intimats at the bar , the pursuit to his authors advocats , to the end they may defend him , and if they do not , they are lyable in an action of eviction for damnage and interest ; but the old form of calling warrands is in desuetude . though bonds of man-rent are hereby discharg'd ; yet former heretable bonds are excepted . vid. crim . observ . tit . falshood . num . ▪ it is observable that there needed a particular act of parliament for cutting down the wood of falkland , because as i think , the queen was then a minor , and it was to be cut down by the regent , and the regent being but a tutor , it has been thought he needed a decreet or act of parliament for his warrand , even as the tutor of a private party , cannot alienat his pupils lands , without a decreet of the lords of the session , and it may be argu'd from this act , that though a wood be old , yet it cannot be cut down by a tutor , without the warrand of a judge ; for this act bears , that this wood was old and ready to perish . it may be likewise doubted , whether since the kings parks are a part of the annext property , the king , or any having right from him may cut down the wood without an express act of dissolution , or other warrand from the parliament , since the king is only but a liferenter of the annex'd property , and a liferenter can only cut down what is necessary for his own use . but since woods would perish if they were not cut , i think there needs no previous dissolution . though by this act , deacons are discharg'd as tending to sedition , and visitors appointed to be chosen in their place , yet the very next year , the same queen mary allows deacons to be chosen by a special grant to the crafts-men of edinburgh ; because , as that grant bears expresly the act was never in observance , and since the making of it , it was found by experience , that deacons were necessary in towns ; from which it may be argu'd , that when a law is found absolutely inconvenient , the king may dispense with it till the next parliament , especially where the law had never been observ'd ; but i think the speciality of that grant lys in this , that this being an act of parliament relating to government , and made for the security of the crown , the monarch may use it , or dispense with it as he pleases , as every person may dispense with what is introduced in his own favours , though to this it may be answer'd , that what is introduced for the good of the common-well , as the act bears this was , cannot be dispensed with , without the consent of the three estates ; to which it may be reply'd , that matters of government doe not concern them directly , but by consequence , government being the interest of the king , as property is of the subject . this act is inlarg'd by the act par. ja. . by which the lords of session are ordain'd to grant letters summarly on six days , against such as stop high-ways . this act is explain'd in the act par. ja. . though by the act par. sess. ch. : the burghs of regality or barony ; are allow'd to bring home timber , iron , &c. as the return of the native commodities of the kingdom ; yet it was controverted if they might bring home salt , and it was found that they could not bring home wine , nor salt , nor brandy , even as the return of their native commodities , so that none can trade in these save the burghs royal. the acts here related to , are the act par. ja. . and and acts par. ja. . which declares the breaking of dove-cots , parks , and ponds to be theft , and upon the of july . raith and dean are ordain'd to be hang'd for breaking of yards , stealing of bees-skeps and sybows ; and it was theft by the civil law , lege pomponius . par . pomponius . ff . fam. erisc . vide crim. observ . tit . theft , num . . this act against the speaking evil of the queens grace , or french-men , was made when the french-men came over to assist the queen against the english ; and though it be temporary quoad the french ; yet it is still a standing statute quoad our monarchs , and it is observable by it , that the hearers of false reports against the queen , and not reporting the same , are punishable as the principal speakers , but it may be doubted , if hearers are obliged to dilate , when they cannot prove . though this case in so far as concerns these temporary pleys have now no force , yet that part of the act appointing women and others , who make perturbation in the passage to towns is still in observance , and the punishment is by our practice arbitrary . queen mary , parliament . by this act the judge is allow'd to exact caution from such as propone improbation , and this act was found to extend as well to exceptions of improbation as to actions of improbation ; and though it appoints caution only to be found , yet the lords ordain oftimes the money to be consign'd , and fourty pound is the ordinary sum , and sometimes they sustain cautio juratoria , where the party cannot find caution , but this cautio juratoria , is never allow'd , except where there are previous and strong presumptions of falshood , or else the lieges might be extreamly vex'd , ordinarly the same day is appointed by the judge for the proponer of the falshood to consign , and for the producer of the writ to bide by the same , like to these consignations , were the sponsions mentioned in the civil law , whereby litigators sponsionem faciebant certae pecuniae quae ejus lucro cederet qui judicio vicisset l. paen . ff . de alcae toribus l. . § . ult . ff . de praescript . verb. nota , by this act where improbation is propon'd at the kings instance , the informer is to find caution , but if the kings advocat insist , ad vindictam publicam , i conceive he is oblig'd to find no caution , because he is never presum'd to pursue calumniously . when any thing is to be proven by writ , if the writ be not produc'd , this act appoints that protestation shall be given against the probation of that part of the exception ; but now the form is to call upon the act , and crave circumduction of the term , which circumduction is here call'd protestation , but if the writ be produc'd , this act appoints that the other party shall be heard against the same , after renunciation of probation , and the form is , that when any writ is produc'd in modum probationis , the other party protests to be heard against the same , at the advising of the cause , and the producer puts up an act renuncing further probation . this act appoints the expences of plea to be tax'd , and insert in decreets , which is conform to the ch. and . quon . attach . and though by the civil law , expences of plea ought not to exceed the principal sum pursu'd for , bart. in l. . cod. de indiction : yet i have seen more expences allow'd than the sum pursu'd for , extended to , and it were very unjust , that if a person of quality were pursu'd unjustly by a mean rogue , for a small matter , that his expences should not be determined according to what he was really forc'd to expend , for the necessity of expending is the only just rule in such cases . queen mary , parliament . this act of parliament doth enable french-men to bruik lands and estate in scotland , and naturalizes them so as that they may enjoy all the priviledges here , as any scots-man may do , but though quoad the point of succession , strangers have by many nations been debarr'd , and that by the roman law , cum peregrinis testamenti factio non erat , l. . c. de hared . instituend . l. . § . . ff . de ● . yet craig . pag. . observes , that strangers were not debarr'd from succession in scotland , and i find it so decided , january , . in the case of one richardson . these priviledges granted by this act , are likewise confirmed to the frenches by an act of sederunt , the of june , . from these first words in this act appointing letters of naturality ( or naturalization ) to be given to such of the french subjects as shall happen to be in the kingdom of scotland , it may be doubted that french-men cannot pretend to this right except they live here ; but this is expresly contrary to the french priviledges there granted to us . it may be also urg'd that dutch-men or others cannot pretend to it , though they be naturalized in france ; for to naturalize them because they are naturaliz'd in france , were to allow the french king to naturalize any he pleas'd in scotland , though enemies to us . . only french-men are naturaliz'd , which is to be interpreted only of such as are properly so . . this were fictio fictionis , which is reprobated by law. it seems also just that except this priviledge be continu'd to us in france , french-men ought not to have it in scotland . quaer . if merchants , though not naturaliz'd will not have right to heretable rights granted for security of their money , for without this there could be no commerce . this act contains the french priviledges to us communicated by the french , whereby the scots may succeed in france in the same way that the french-men themselves did , and they are by this act naturaliz'd to that and all other effects , and which was very necessary for us , since by the law of france the fisk excludes the true heirs of strangers , except as to goods brought in by them , which priviledge is call'd by the french droict d' anbeine , beside this right of succession , the scots likewise are free to be preferr'd to all ecclesiastical dignities . the gentlemen are free from taxes , and the scottish ships free from imposts , albeit of late the french exact from us sols per tun , as from other strangers : as to which i drew this memorial , as assessor to the royal burrows . a memorial concerning the priviledges due to the scots in france . the french nation finding themselves oblig'd to have forraign recruits , for maintaining their wars , pitch'd upon scotland , as a nation very sit to furnish them levies , and so old was their alliance , that a league offensive and defensive was enter'd into betwixt charles the great , king of france , and achaius king of scotland , in anno . at which time charles the great bestow'd upon the king of scotland the double tressure , garnish'd with flower de luces , or as the french call it , fleurie & contre fleury born by them , at this day as all the french historians and heraulds do acknowledge . after this the french being ingaged in constant wars with the english , they imploy'd the scots on all occasions , in which their great succours and services are set down by favin a learned french author , in his theatre of honour , and to ingage that nation the more , as well as to reward their services , the guarding of the king's person was bestowed upon them by charles the th . and they were holden as naturalized french-men , and were exempted from payment of all customs ; and though many of these contracts and leagues be lost , yet these following papers are still extant . a treaty containing these priviledges betwixt alexander the d . and lewis of france , called st. lewis . another betwixt king robert le bruce and king john. an act of parliament . relative to the like act in france , wherein q. mary , who was then married to francis , dolphine of france , doth with the consent of parliament naturalize all the french in scotland , and enable them to succeed to estates moveable and immoveable here , and free them from all taxes payable by strangers ; in which act of parliament the copy of the priviledges granted by the french to the scots , is verbatim ingrossed . item , a patent by francis king of france , dated may . exeeming the scots nation from paying custome in normandie . item , an act of exchequer approving thereof , dated the said year . item , an act of the thesaurers in france , consenting to the same . item , letters patent from the said king to his great council for expeding the former patent , dated the said year . item , act of the great council consenting thereto . item , an act of the cour des aides at paris , approving the said patent . item , charter by king henry the d . of france , exeeming the scots nation from customs in normandy , and containing on the back thereof , the consent of the cour du parlement at rouen , as also , an approbation of the cour des aides , dated . item , charter by the said king , exeeming the scots nation from paying any custome through the whole towns in france and normandy , containing an approbation of the cour du parlement at rouen , as also approbation of the chambre des comptes of rouen , also approbation of the cour des aides in rouen , all in anno . item , extract forth of the register of cour des aides , for the scots merchants transporting wares from normandy , to find caution that the saids goods shall be sold in scotland , dated the said year . item , charter by the said king henry , discharging the act foresaid of finding caution , but to give their oath if they be required , dated . item , copy of a confirmation by king henry the . of the scots priviledges granted by his predecessors , dated . item , supplication james colvil to the burrows of scotland , craving recompence for obtaining the said charter . item , copy of a warrand by king henry the . to his cours des parlements , and other judges , for restoring to scots merchants whatever has been taken from them , and granting them free trade through his whole kingdom , dated . item , confirmation by the said king henry the . exeeming the scots nation from paying customs in normandy , containing approbation of the cour du parlement of rouen , and registrated in the chambre des comptes , with consent of the kings advocat , and also registrat in the cour des aides , with consent of the kings advocat there , as also registrat in rouen , in anno . item , charter by the said king , direct to the cour des aides in normandy , discharging the famine act of finding caution that the goods transported from normandy shall be sold in scotland . item , extract forth of the cours des aides of rouen , for registration of the former letters . item , extract of the register of the cour de chambre des comptes of rouen , for registration of the saids letters . item , extract of the register of the chambre des comptes of normandy , for registration of the former letters . item , extract forth of the domain books in rouen , consenting to the registration of the saids letters in their books ; as also , extract of the books of diep , consenting to the registration thereof in their books . item , two warrands of the thesaurers of the finances in normandy for the registrating of the foresaids letters ; all the saids writs are dated in anno . item , extract of the domain in rouen for customing the scots mens goods there , in respect the scots priviledges were not confirmed by king lewis . dated . item , charter by lewis . confirming the scots priviledges , and exemption of customs in normandy , and registrat in four several courts in france , dated in july . item , extract of the approbation of the said charter at rouen the famine year . item , extract of the said chambre des comptes the famine year . item , charter be the said king of the saids priviledges direct to the chambre des comptes in rouen , dated in august , . item , extract of the cour des aides of rouen of the former letters . item , extract of the domain of rouen approving the saids letters . item , warrand of the thesaurer of finances , approving the registration of the saids letters . item , warrand of the burrow of new-haven , consenting to the registration of the foresaids letters , in anno . item , extract in form of arrest of the great council of france , declaring that the scots merchants shall pay but for every weight of wool sols of custome , and for every piece of scots hydes sols deniers , and that notwithstanding of the new taxt of customs raised in the dutchie of normandy upon such merchandice , and this to evite all process that might fall thereupon , dated . item , warrand by the said king lewis to the chambre des aides , and m r. desportes in normandy , to proceed to the approbation of the said arrest of the great council , which is registrat in the books des aides of normandy in the foresaid year . item , extract of the cour des aides , approving the registration of the saids letters . item , extract of domain of rouen , approving the saids letters . item , extract of the intimation made to the customers of new-haven of the foresaids letters , and approbation thereof in the cour des aides . item , extract of the burrow of diep , consenting to the registration of the saids letters in the great council , all dated in anno . conform to these priviledges , the parliament of paris did in anno . discern the scottish nation to have right to all the priviledges , and to be capable of employments , and free from all customs , whereupon the learned mr. servin that famous advocat has written a learned book , maintaining the saids priviledges , to which he has annexed the said decree and sentence . likeas the saids priviledges are acknowledged by le bret , in his book concerning the prerogatives of the kings of france , cap. naturalization , and many other french lawyers , and by favin in his above-cited theatre . by vertue of which rights and priviledges , the scots have been alwayes esteem'd as naturaliz'd in france , and have enjoy'd all the priviledges due to the natives , until of late , that there being sols per tun imposed upon forraign bottoms , some of the scots in rouen were charg'd for payment thereof , whereupon m cmath , blackburn and pringle , having been pursu'd in the cour des aides , they were not only in july . absolv'd from paying any part of the said taxation , but the collectors were ordain'd to restore unto them what they had exacted upon that head : as also , there being a scots vessel consign'd to mr. pringle , in anno . and he being charg'd for the said sols per tun , he was freed from the said taxation by the parliament of rouen after full debate , upon june , . on our part likewise the french enjoy all the priviledges of natives , and possess lands and heretages , and are as capable of succession as the natives are , nor pay they any taxes , being declared free conform to the said treaties by several acts of exchequer in scotland , though the english have impos'd a crown per tun to compense that sols . from all which it appears most just and reasonable that the scots should have all the priviledges of the natives of france , because , . the same have been granted to them by solemn charters and concessions , which though it had been free to the french king to have at first granted , yet being granted , he was not thereafter by the principles of justice free to have recalled the same . . though meer gratuitous priviledges might be recalled , as they cannot , yet renumeratory priviledges granted for services done , as these charters can never be recall'd without an open violation of justice ; and it is undeniable that scotland has spent more blood and money in the french service than all those priviledges were ever worth , and it 's known that the last concessions were granted to the scots , for giving q. mary in marriage to the dauphine of france , whereby if he had had children , scotland it self had been annexed to france ; and because the scots did refuse her to k. edward the of england , they were thereupon invaded by the english , and their nation was almost ruined . . though renumeratory concessions might be quarrell'd , as they cannot , yet mutual treaties and contracts can never be abrogated nor taken away without the consent of both the parties contracters . . the scots being secured by decisions of the supream courts of france , as said is , they have thereby the greatest security that the law of any nation can give . as these reasons may convince any man that it were against the justice of france to take away the priviledges of the scottish nation , so the principles of prudence and policy seem very much to oppose the taking them away , for , . what can any other strangers expect from concessions , treaties , or contracts , when so old and well deserved priviledges are questioned , it being very well known to all nations that scotland has deserv'd extraordinarly of france , and this alliance has been famous beyond all the other alliances now known in the world. . the scots and scottish nation have upon this account refused all other alliances , to their great loss and prejudice , in so much that they have oft times suffered their kingdom to be invaded , harrass'd and ruin'd by the english , because we preferr'd the french alliance to theirs , and as our countrey-men have alwayes been ready to spend their lives for the french , so within these years we have lost men in their service , who did not amongst them all bring home livers to this kingdome ; and it 's very well known how ready we are to own the french interest in all courts and countreys where we live abroad . the kingdoms of scotland and england may come to divide by the failure of the scottish line in england , and so it still seems prudent for the french king not to extinguish his interest in scotland . and whereas it may be pretended that we have forfeited our priviledges by declaring war against the french , to this it is answer'd , that . the denouncing of war by us was only the effect of a necessary obligation upon us as being a part of great britain , and not a war enter'd into by scotland upon any national account . . by treaties following upon the war , all things are restor'd to the former condition they were in , except in so far as former treaties were innovated by express conditions ; but so it is there is nothing inserted in any of those treaties to the prejudice of our former leagues and priviledges , and therefore they must revive and return to the same force and vigour they were in before the war. i find this act registrated and recorded in the books of sederunt , and generally it is observable , that most of the publick papers , whereupon any legal debates or securities might depend , were inserted in the books of sederunt , which was somewhat like the french custom of verifying in the parliament of paris ( that is the same with our session ) the kings edicts , and thus the pacification betwixt the regent and the hamiltons in anno . and many such papers are inserted there ; and of old even publick accidents were likewise insert , such as ecclipses , &c. queen mary , parl. . ordina●ly in acts of indemnity , which follow civil war , as this is , the king or state does only discharge all action that may be competent , for all manner of omissions or commissions , by vertue of any power or warrand of those in power for the time , as is to be seen in the act sess. par. ch. . but here in this act , all actions that may be competent for any cause or occasion , during the time , for which the troubles lasted , are once discharg'd , except there be a warrand given by the persons named in the act , for intenting actions during that time , but thereafter by the act par. ja. . the lords of session are made judges to the interpretation of that act of oblivion , and all decreets recovered during these times , are declared irreduceable , if they be not pursued within year and day , and this short prescription is declar'd to run against minors , which is likewise conform to the said act , in which late acts the nature o● amnesties and oblivion , shall be more fully declar'd . vid. obs . ad act par. ja. . vid. obs . ad act par. ja. . upon this act the forgers or bringers home of false money use to be forefaulted , as was found in the case of john drummond , november . . and many other cases , and though it was alleadg'd in defence of hamilton and burn , october . that only officers of the mint-house used to be forefaulted because of their ex●berant trust , and that it was easie for them to commit such crimes , yet drummond was no officer , but a sadler in pearth , the words of this act , that are ordinarly founded upon , are , that the revealers of forgers or home bringers of false coyn , shall have the one half of the escheat of all their lands and goods , moveable and immoveable ; and this punishment is peculiar to treason ; and it seems that forging or coyning is an incroachment upon the kings prerogatives ; one of which is the coyning of money , but i see not why bringing home of false coyn , could upon this account be declared treason . it is also observable from the former case , . that the meanness of the quantity or value coyn'd , excuses not from the punishment of this act , vid. crim. observ : tit. falshood . by this act it is appointed , that no parson , vicar , or other kirk-mans manse or gleib can be set in feu , or long tack ; and therefore an heretor , to whom the vicars gleib was feu'd , though a year before this act was refus'd relief , when that land was design'd to the minister , because the feu set to him was contrary to this act ; and though the feu was set prior to this act , yet it was null , because it was not confirm'd before this act , february . . vid. obs . on act par. ja. . all such as practise witchcraft , or consult with them , are by this act punishable by death , as are also all such as pretend to have any such craft or knowledge , there-through abusing the people , from which it is observable , that such as pretend to fore-tell things to come , or to tell where things are lost , may by this act be punish'd with death , though really they have no such skill . by this act also , all sheriffs , lords of regalities , and other judges , having power to execute the same , are ordain'd to put the same in execution ; but it does not therefore follow that stewarts and bailliffs , and sheriffs , are competent thereto , and de facto , the justices only , or such as have commissions from the council , use to judge this crime , vide. crim . observ . tit. witch-craft . notour adultery is by this act declar'd punishable by death , and by the act par. ja. . that is only declar'd to be notour adultery ; where o. there are bairns , one or more procreated betwixt the adulterers . o. when they keep company , or bed together notoriously known . o. when they are suspected of adultery , and thereby gives slander to the kirk , whereupon being admonish'd to satisfie the kirk , they contemptuously refuse , and for their refusal they are excommunicate , if either of which three degrees be prov'd before the justices , the committers are punishable by death ; from which act it is to be observed ; o. that by the first act , premonition to abstain , was still to be made in all cases ; yet in neither of the two first cases here related , it is declar'd necessary ; but since it is not lawful to kill him who was premonished , and thereafter conversed , except they conversed in suspect places , gribald . de homicid . num . . it seems that in neither of these statutes , conversation should be criminal even after prohibition , except it be in suspect places . o. the justices are only declared to be judges to the notoriety of adultery ; and therefore it may be controverted , if lords of regalitie be judges competent to the cognition of it , and this seems to be restricted to the justices , because it is an arbitrary inquiry in a capital case . . this act does not exclude capital punishments in other cases of adultery , but only ordains that these three degrees shall be punish'd by death ; and since there are other cases more grievous to the party injur'd , and more scandalous to the common-wealth ; it may be argued that the punishment of death should likewise be extended to them ; as for instance , to commit frequent adulteries . this act declaring that the raising of bonds of men of war , and the rising in that manner is punishable by death , is formerly explain'd , act par. . ja. vid. crim . observ . pag. , & . and this act is ratified by the act par. ja. . by this act the building of kirk-yard-dikes , is refer'd to the lords of secret council , who are to take such course therein as they shall think fit ; but by the act par. ja. . the parochioners are ordain'd to build them to the hight of two ells. and the lords of session are ordain'd to grant letters of horning for that effect , which they use now to do . this is fully explain'd at the act par. ja. . and the first part of it was enacted formerly by act of secret council , december . and that begins , it is statute and ordained by the queen , which seems strange , seing to statute is only proper to parliaments , but acts of council do oft-times bear , statute and ordain vid. costal . de imperator . quest. . num . . this act mentions three kinds of bishops , the bishop elect , the bishop postulat , and the bishop consecrat ; a bishop elect , is he who is elected by the chapter , upon a congé d'és●ire from the king , but is not yet consecrat ; a bishop postulat , is he who was only call'd , but not elected , and cannot be elected as a minor , a bastard , &c. vid. cap. innotuit . § . habile de elect . and it is observable from this act , that both these us'd to dispone kirk-lands , or set the same in tacks , else they needed not to have been discharg'd by this act ; but though we have now bishops elect , yet we have no bishops postulat ; and these elects exercent solum ea quae sunt jurisdictionis sed non ea quae sunt ordinis . by this act notars are to be admitted only by the lords of council , that is to say , the lords of session , as de facto they now are ; and by the act of sederunt , . the lords ordain'd that yearly in november one of their number should be named by them to receive notars , who shall only receive such as are past twenty five , can write an evident in latin or english , and be prentice five years to a notar , though now they are admitted before twenty five , and without having been prentice at all . by this act , such as exerce the office without being admitted by the lords , or after they are discha●g'd by them , may be punish'd arbitrarly , and even to death ; but it has been found , that evidents subscribed by notars , once admitted , though thereafter discharg'd , are valid , they having still been habite and repute to be notars . though this act appoints that all notars shall be admitted by the king , yet now they need no letters from the king , but do depend upon the clerk of register , and his depute , the clerk to the notars . the clerks of session are by their admission as such , notars , though they be not admitted in manner mention'd in this act , and instruments under their hands in judicial acts , makes as much faith as the instrument of any notar. the act here dispensed with , is the act par. q. mary , and it is observable by this act , that when former laws have not been universally observed , no advantage is taken upon them , and this is one of these cases , in quibus communis error sacit jus . the observation in the former act holds also in this , and the act here dispensed 〈◊〉 , is the act par. queen mary . by this act it is declar'd that five or six of the principal burrows shall be call'd to the concluding peace and war , and to the laying on taxations . it may be doubted , whether by the council to which they are to be call'd , be mean'd here the parliament or privy council , and though ordinarly the parliament be call'd the kings council , and that it may seem they only should impose taxations , yet it m●y be urg'd , that by council , is here mean'd the privy council , because all the burrows must be cited to parliaments ▪ and the king and his council us'd before to lay on such general taxations ; and de facto , his majesty did so in many cases , without either parliament or general convention of estates , as in laying on the taxation , for defraying the expence of the baptism of king james the . december . . which taxation was laid on by eight earls , five bishops , and four burrows , not mentioning barons , because it seems the earls were accounted barons ; the taxation was . pounds , whereof . pounds by the spiritual estate , four thousand pounds by the barons and free-holders , and two thousand pounds by the burrows : and another taxation for defraying king james the sixth's expence , in his journey to denmark , and many other such taxations ; and this was then necessary , because taxations behov'd to be impos'd , his majesties revenue being then very mean , and to have call'd a parliament or convention , would have put the people to more expence than these necessary taxations were worth ; but now by the foresaid act par. ch. . all sums to be rais'd for maintainance of forts , or armies must be first concluded in parliament or convention of estates . and now the king has a considerable revenue by the excise , for defraying those small necessities , for which the council then impos'd ; and it is certain in the general , that all countreys should supply the monarch with means to defray the expence of the government , vid. arnis . de jur . majestatis in bona privatorum . vid act par. ja. . by this act the making privie conventions or assemblies within burghs , to put on armour , or display banners , &c. without licence from the soveraign , are punishable by death . observ. o. it seems that meer convocations or assemblies , are not per se , punishable by death , without putting on armour , or displaying banners . observ. o. that naked-assistance at such tumults with a batton , was not found by the justices to infer death , in anno . and i conceive that though a previous design were prov'd ; yet the assistance with a batton would not be sufficient , since the act requires putting on armour , or cloathing themselves with weapons , which imports hostile vveapons , for neither of these can be verifi'd in a batton , and penal statutes are not to be extended ; but yet the appearing with a batton is sufficient to punish arbitrarly , such as assist at tumults , this act confiscating ship and coals , wherein coals are transported , is in desuetude , but is not expresly abrogated by any law ; and though at first , licences for transporting coals were necessary ; yet now even these licences are in desuetude , we having now discovered more coals than serves our nation . this act confiscating beeff and mutton , that comes to mercat without skin and birn , is still in observance , and was made for discovery of theft , for the skin being upon the beast that is kill'd , does bear all marks whereby it may be known ; and for the same reason in the southern shires , the meaner sort who kill any beasts , are oblig'd to keep their ears , and if the flesh be found where the ears cannot be produc'd , it is commonly look'd upon in these countreys as a point of dittay ; not only must the beasts be brought to the mercat with their skins , according to this act , but by acts of burrows , the skins that are brought to the mercat , must not be scor'd nor holl'd , which fleshers did before negligently ; nor must the haslock be pull'd that being the best part of the vvool ; and by the acts of the convention of burrows , made at the desire of the conservator , the skins of beasts within this kingdom did rise in value a third more than , when they were carried beyond sea. qeen mary , parliament . by the second act par. ja. . which is the act here related to ; the kings lawful age was declar'd to be twenty one years ; but it seems , that because it was left dubious by that act , whether the year twenty one was to be inceptus , or completus when begun or ended ; therefore by this act it is declar'd to be twenty one years compleat , and the word compleat , is twice repeated . and it seems that before this act , even the year it self was debateable ; for in the act par. ja. . it is said that the king after his perfect age of twenty five years , ratifies , &c. by an edict of charl. the fifth of france , anno . their kings are declar'd majors , & hors de tutelle , at their age of fourteen . in this act all confirmations of kirk-lands , not confirmed by king or pope , before the year . ( at which time the reformation begun ) were declar'd null ; and by this act confirmations from rome , after that year are discharg'd , and the queens confirmations are declar'd equivalent to the popes ; and i find that by act of secret council , september . . the sending to rome for such confirmations is by proclamation discharg'd under the pain of barratry . k. james vi. parliament i. queen mary being queen during her life , appoints the earl of murray to be regent , and his election is confirmed by this act , and it is declared to last till the kings age of seventeen , at which time it is declar'd , that he shall enter to the exercise of the government ; i find amongst the un-printed acts , subjoyn'd to this parliament , a resignation of the crown made by her , which it seems was necessary , she being soveraign during her life , as the king is during his life . observ. she calls the earl of murray brother , though he was her natural brother , which was conceal'd ob honorem , but ineptly and though the earl of murray is here call'd the kings cousine , yet he should have been call'd his uncle : nor are uncles properly cousines ; but i think this was because all earls who are counsellors are call'd cousines and counsellors ; but yet if he had been to have been call'd a counseller , for this cause he should have been call'd cousin and counseller . i have also seen a commission to one of the kings natural sons in england , wherein he was call'd our cousin . it is observable , that sometimes the acts of this parliament bear , to be by our soveraign lord , my lord regent and the three estates , as the , , and . which is not well exprest , for the estates and regent had no power to make acts , and therefore the rest bear better , our soveraign lord , with the advice and consent of his clearest regent and three estates . nota , the parliaments saying my lord regent , seems very ill grammar , for it should have been the lord regent . those acts confirm , and relate to former acts past in the parliament , holden by queen mary , august . . and yet we find no such parliament ; but the true answer to this is , as appears by spotswoods history , that the lords of the congregation having met in anno . and having past those acts , abolishing the popish religion , many of the members of that pretended parliament protested , that this meeting was no parliament , because there was none there to re-present the queen , nor the king of france her husband , whereupon sir james sandilands was sent over to procure a ratification of these acts , which being deny'd , the same acts are here ratifi'd by the earl of murray , when he came to be regent , as if they had been past in a lawful parliament . for understanding of this act , and the nature of patronages , it is fit to know that the right of patronage is a power of nomination granted to him who either was master of the ground whereupon a kirk was built , or who doted any thing to the maintainance of it , or who did build a church , to present one to serve the cure thereat , in all which cases he is accounted patron , and may present a person to be minister , or to any other benefice , and that only if he reserve such a power to himself in his mortification , for hope in his lesser practiques , is of opinion that reservation is necessary , and the reason is , because jus patronatus est servitus libertati ecclesiae imposita , and therefore is not to be allow'd , except the same was adjected at first to the mortification , molin . ad reg. de infirm . the first mention of patronages is by st. panlin . about the year . and justinian i find mentions the novel . . patronages in scotland are either laick or ecclesiastick ; all patronages are accounted ecclesiastick , which either belong to ecclesiastick persons , or which have flowed from the king ( though by infeftment ) since the reformation , in so far as concerns these benefices , wherein the king succeeds in place of the pope , who before the reformation , was accounted universal patron ; laick , patronages are such as have been disponed before the reformation by his majesty , and these pass by infeftment , or have been founded by laick persons since , and these must be now obtained by a signature from his majesty , even by such as either contribute , dotem , sundum , edisicationem . the words of the concession are , his majesty grants advocationem , donationem & jus patronatus ecclesiae de , &c. it is expedient to know the differences betwixt the old laick patronages , and these which are dispon'd by the king since the reformation , because by the act of annexation , july . all kirk-lands , are annexed to the crown , and an exception is always made of lands which pertains to the benefices of laick patronages , which exception is only extended to laick patronages , which were lawfully established before the reformation ; which is also conform to the canon law , by which the pope may prejudge an ecclesiastick patronage , but cannot a laick , bevg . de union . beneff . § . . num . . after one is prefer'd by the patron , he hath only jus ad rem , but his collation and institution which is given him by the church-man , to whom the presentation is directed , gives him jus in re ; but if the benefice to which the patron presents be a benefice without cure , that is to say , having no care of souls , as provestries , prebendries , &c. eo casu , there needs no collation or institution , december . . l. lugtoun con . edmiston . the patron must present one within six moneths after he comes to know the vacancy , else the presentation pro eâ vice , belongs to the church jure devoluto ; in which we agree with the customes of normandie , as in many other things , but molineus does more rationally conclude , ad reg. de infir . resig . num . . that the bishop does confer jure proprio , after elapsing of these six moneths , because all churches of his diocess sunt in illius ordinatione ; so that substracto per lapsum hunc jure patronatus quod huic juri derogabat , redit ad suam naturam quod probatur ex c. . &c. . extr. de suplend . negl . praelat . and yet when the arch-bishop presents upon the bishops failȝure , he does it only jure devoluto nam inter utrumque est gradus jurisdictionis quae ab inferiori puta episcopo post elapsum tempus legitimum devolvitur ad superiorem puta archi-episcopum sed patronus nullum facit jurisdictionis gradum ; but if the presbytrie refuse to admit a qualified minister presented by the patron , then the patron may retain the whole fruits of the benefice in his own hands , act par. ja. . this retention is likewise allowed by the act par. ja. . but whereas by the former act , the presentation jure devoluto fell to the presbytries by the last act it falls to the bishop ; but though by these acts it be lawful to the patron to retain the vacand stipends , or fruits of the benefice in his own hand , yet it may be doubted , if he may apply them to his own use , for these are not only different effects , but it seems that this being contrary to the nature of things sacred , and to the principles of the canon law , he cannot , for though by cap. in quibusdam de paen . cap. de elect . patrons had the custody of their own churches when they vacked ; yet the fruits of all vacant churches were to be reserved for the future intranti , futu● ro clerico cap. . extr. ne sede vacant . and though at first kings , and then all patrons pretended to the intrometting with the fruits of their churches , especially in britain , as malch . westmonst . observes in the year . yet alexander . by the cap. . extr. de off . jud. ord . appointed , that even procurators should be appointed for intrometting with these fruits during the vacancy quod patroni laici curam tantummodo & defensionem suarum ecclesiarum haberent non etiam potestatem ullam in rebus quas iis donarunt vid. can . noverunt . quest . notwithstanding of which canons hostiensis , and others , except such cases , wherein by the foundation , or by a singular priviledge , or by prescription the contrary is introduced , and molineus asserts , that all laick patrons may appoint administrators , and gather up the rents , though they cannot fructus ecclesiarum vacantium in usus ●uos converteresed futuro clerico reservare vel utili●er in ecclesias impendere ; and therefore it seems , that the parliament having only allow'd laick patrons to retain these stipends during the vacancy , they can only apply them to a pious use , but can in no case appropriat them to themselves ; for as such an appropriation would be sacrilegious , so it would be sufficient for preserving the patrons right , that he might bestow them upon such pious uses as he pleased ; but since the act par. ch. . and the act of the third session of that parliament , appoint all vacand stipends to be imploy'd for universities , and other pious uses , and that there are several exceptions there made , and yet none in favours of laick patrons , i see not why the rents of laick patronages fall not likewise under the collection of vacand stipends , the laick patrons having been re-presented in that parliament , and so consenting to this act , especially seing the said act declares that the benefices of vacand kirks , should during the vacancy be imploy'd upon pious uses , and the collectors of vacand stipends , have alwise been in use to collect these . selden in his treatise of tithes , asserts that the right of investiture , was at first reserv'd by lay patrons in the foundations , and that the gleib and tithes were at every vacation confer'd by the patrons to the new incumbents , by some simbole or ceremony , not differing from our seasines ; and it is probable that for some ages after charles martels reign it was so , because tithes were then transmitted by laical infeudations ; and i have seen several rights of this nature in the chartularies of our abbacies ; and though afterwards this was condemn'd by many councils , yet kings reserv'd to themselves the vacant fruits of bishopricks , as being founders and patrons of these benefices ; and with us this clause , reserving to the patrons power to retain these stipends during the vacancy , seems a vestige of their old pretension ; but i shall examine all this very fully in my treatise of tithes . if the bishop refuse to admit one presented by the patron , then recourse must be to the arch-bishop , and if he likewise give not redress , then the council will give letters of horning to charge the ordinary to receive the person presented ; and by that act the bishop may refuse to admit a person , who hath not reserv'd to himself a sufficient maintenance in setting back-tacks of his personage to the patron , which paction is accounted simoniacal , and the lords of session declar'd only judges competent thereto , though by the ch. lib. . r. m. patronages are declar'd to belong to the ecclesiastick jurisdiction , and the said paction is probable by the parties oath , albeit regulariter nemo tenetur jurare in suam tur●itudinem by the act par. ja. . it is appointed that the bishop shall not refuse to admit any qualifi'd minister , who hath been once admitted and receiv'd a minister ; by which it is clear that the bishop is not oblig'd to receive an expectant , who is ●ot an actual minister , and the reason is , because non constat , if he be yet qualified , and the bishop cannot be obliged to enter him , and consequently is not oblig'd to accept his presentation . by the canon law four moneths were allow'd only to a laick patron , and fix to an ecclesiastick ; this was our law before this act , as is clear by the cap. r. mai. lib. . and there was good reason it should have been so , for the constitution concerning it , c. . ext. de suplend . negl . prael . is written episcop● st. andreae in scotiâ ; and this is cited as our law , by le roy de jure patron . c. . and in case of the patrons negligence , a gradation was allow'd from inferiors to superiors , till it ended in the pope . by that law likewise , a laick patron might vary in his presentation ; but an ecclesiastick person could not ; and if an ecclesiastick patron presented a person that was unworthy , he lost the right of his presentation pro ea vice ; but a laick patron did not : and by our law , if the patron present one that is unfit , he may present another , and a third , providing all his presentations end within six moneths , for the presenting one within six moneths interrupts not so , as that he may thereafter present another within other six moneths , as some think , except his not admitting be occasioned by the bishop , who cannot seek a jus devolutum , by his own fault , by the act par. ja. . the gradations then allow'd , were from the ordinary to the super-intendant , and provincial-assembly , and from them to the general-assembly . where there are more patrons , they have right to present per vices , and he who hath been in possession of presenting trina vice , that is to say , the three last times successivly , without interruption , hath the only right of presentation in possessorio , in a competition with the other patrons pro ea vice , without prejudice to the rest to declare their right for the future , as accords ; and by some it is alleadged , that presentations trina vice ex decessu incumbentis , excludes all other rights etiam in petitorio , but this is not our law. doctor forbes in his treaty of simony , exclaims extreamly against this act of parliament , for allowing the incumbent to set tacks , reserving to himself a sufficient maintainance , and he urges violently , that this act allows rather simony , than accuses it . it may be argu'd that this act debars not such of the royal line as have right to succeed to the crown , for this relates only to a coronation , and the coronation it self is not necessary , coronatio enim magis est ad ostentationem quam ad necessitatem , nec ideo rex est quia coronatur , sed coronatur quia rex est oldrad . consil. . num . . balbus . lib. de coronat . pag. . nor do we read that any kings were crowned , except joash , in scripture , and clovis king of france was the first that was crowned ; nor are any kings of spain crowned to this day , neither is a coronation oath requisite , sisenandus being the first who in the tolletan council gave such an oath amongst the christians , as trajan was the first among the heathen emperors , gregory was the first of our kings , who anno . gave the first coronation oath , having embraced the christian faith , in which he was very zealous , swore to preserve it ; but this oath was not made to the people , for they were not present , but to god ; nor could he , as blackwood observes , apol. pro regib . c. . bind his successors , quia par in parem non habet imperium , nor could he bind himself for them to the people , quia cliens jurat domino non dominus clienti , tit . de formâ fidelitatis , lib. . feud . likeas it may be said that this act being made in the king's minority , and being prejudicial to the right of blood in his successors , it falls under his revocation , made par. . cap. . whereby he expresly revocks every thing which might hurt the priviledge of the crown , which this act would do , if kings were thereby debarr'd from succession , for differing in religion from their subjects : this is contrary to the confession of faith , which tyes us to obedience to our king , though an heretick ; and since private subjects are not debarr'd upon this account from their property , the king ought not to be debarr'd from the exercise of his government , which is his property , and that kings cannot be debarr'd by a statute , is clear by all the doctors , in can. qui jura distinct . aecurs . in l. princeps ff . de legibus , l. . de natal . restit . l ▪ jura sanguinis , ff . de reg. jur. sed naturalia instit . de jure naturali forma juramenti quod praestant reges in coronatione per gloss. . in cap. fin . de eccles. aedif . est quod jurat . se regni sui jura illibata conservaturum , vid. ant corset . de potest . reg. pars . num . . some are also of opinion , but injustly , that coronation is to a king the same thing that investiture is to a subject , and therefore as heirs may continue the possession of their predecessors before the infeftment , but cannot sell , excamb , or do any other deads of property till he be infeft , so though a king before he be crowned may do these things that are necessary for present administration , yet he cannot hold parliaments , dispone upon annexed property , and do any other deeds which require the exercise of the royal power , till he be actually crowned : and whereas this act ordains that all future kings shall take this oath at their coronation and the recept of their princely power , which implyes that they should take this oath before they can administrat : it seems that this implyes a contradiction , for they must administrat in appointing the coronation , and ordering all things thereto relating ; and our king did govern long ere he was crowned ; but these words are exegetick only of the coronation , and by them is meant the recept of his authority in the coronation . this act is ratified by the act , par. ja. . vid. act . par. . ch. . it is fit to know , that whatsoever of the thirds was not assign'd to ministers , did appertain to the king ; and it was called superplus , whereof there was yearly a book made , which altered , and was more or less , according to the assignation to the ministers , and according to the superplus-books , the kings collector did charge for the superplus for the king's use , and with it also the omitted benefices , which the prelats and beneficed persons omitted in the up-giving of their rentals , and also for common kirk , and friers lands , which also with the thirds were appointed for the uses aforesaid . the rent of the thirds for the king's use , is altogether extinguished , partly by restitution of bishops , who have right to their own thirds , and partly by erection of abbacies and priories , in which the thirds are discharg'd in favours of the lords of erection , they planting the kirks . likewise in parliament , . and . and in our late parliaments there was commission granted by the parliament for planting of kirks , which has made the old book of the assignations of ministers stipends , and yearly plat thereof , to be out of use . many of these books of assumption are still preserv'd , and they are very useful for clearing what the old rentals of benefices were , so that it may be known whether benefices be set with di●●●nution of the rental . for the better understanding this act , it is fit to know ▪ that a provost with us , is that which praepositus is in the canon law , praepositura est dignitas , quando est collegiata alias non fed. de sen. consil. . alia ergo est jur. can. praepositura collegiata , alia non collegiata ; but with us , where there was a colledge kirk , it was govern'd by a provost , and prebends ; and generally it was institute for divine service ; but there are colledges institute for instructing of youth , as the old colledge of st. andrews , which is governed by a provost . a provost is in our law no prelat , and therefore tacks set by him are null , without consent of the patron , july . hope tit . kirk ; but è contra , the patron may gift prebendaries without consent of the provost , or prebends , except it be otherwayes provided by the foundation . the collegiat kirks , provostries , prebendaries , having been founded by noblemen , for their own ease and advantage , they retain still a greater power over them than over any other benefices , and therefore by this act the patrons of these may provide them to bursers or others , notwithstanding of the foundation , which is ratified by the act. par. ja. . and by the act , sess. par. ch. vid. observ . on that act. fornication is now punish'd only by the kirk session , and this act is not exactly observed , for the offenders now only pay an arbitrary fine , and stand upon the stool of repentance . this act and the next are explained in my criminal treatise , tit. incest . the melting down of any money already coined within the kingdom , under the pains here exprest , is punish'd with us , because our coyn , being as fine as our plate , it would be thus melted down , and so the stock of the money would be impoverished ; and as the act , par. . ja. . observes , it would waste and minish by translation in the fire ; but the question being agitated , whether forreign coyn may be melted for bullion ; it was urg'd , that by this act no gold nor money already coyn'd within this realm was to be melted ; for by the said act , no gold nor money that bears form , and is printed , should be melted : but to reconcile these , the answer is , that if money be once allow'd to be current here by direct allowance , as by proclamation , it is not thereafter to be melted down ; and so it was decided in the lord hattons case , feb. . though the lords of session are not judges competent to reduce sentences past in parliament , as the more soveraign judicature , yet they are judges competent to reduce rights confirmed in parliaments , whereby the confirmation falls in consequence , quia confirmatio nihil novi juris tribuit , vid. march. . bishop of dunkell contra the lord balmerinoch . this act against forbidden weapons is explained by me in my criminal treatise . tit. . vid. the criminal treatise . tit . falshood . this act was to supply the nullities which could have been objected against such rights by the court of rome , who pretended to the only right of bestowing church-benefices , so that our separation from the church of rome was first authorized by the parliament in the year , . vid. crim. tit . theft : but it is now fit to observe , that when any-man cryes for help against thieves , all who are desired are obliged to concur with the owners of the goods , under the pain to be holden partakers of the theft , which huy and cry with us was called quiritatio by the romans , by the greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , vid l. . & . cod. de his qui lat . & l. . ff . de serv. fugitiv . although by our law pactions for gifts , or rights to accresce to private men , though not actually as yet fallen to them , are valid ; and thus it has been found , that a man may renounce or s●ll haereditatem futuram ; yet by this act a gift of escheat , when a party shall be denounced , is declared not to be valid , because this may occasion the person whose escheat is so gifted , to be denounced viis & modis , and this proceeds upon the same reason that the civil law discharges such deeds , quae praebent votum captandae mortis alienae , and by the canon law a benefice cannot be promised or bestowed when the same shall happen to vaik , nec confirmatur sequenti vacatione col●atio , c. proposuit , de con . preb . ca. . de preb . in . & argumento hujus legis , it seems that the survivances of offices should be null by the same parity of reason , for these preclude the king from his free gift , and are the occasion of snares : likeas , such gifts by our law and style should express modum vacandi , which cannot be done where there is no vacation ; and though we have no express statute , yet●by our practice , which observes styles as statutes , if a gift express not modum vacandi , it will be null ; so a gift of escheat not mentioning the horning whereupon it proceeded , was not sustained , though a horning year and day before the date of the gift was libell'd on in the declarator , and though the gift was past the king 's own hand at court , where hornings could not be got , november . welston contra stuart . for if this had been sustain'd no horning had ever been exprest thereafter , but the donatar had still choos'd out one of the meanest debts , since he is bound to pay the debt in the horning by his gift . though this act requires that seasins within burgh should be subscrived by the clerk , and given by the bailie of the burgh , yet the lords sustain'd a seasine of lands within burgh given by the sheriff and sheriff-clerk , where there were no magistrats or town . clerk in office at the time that the seasine was given , july , . thomson contra mackitrick . this is one of the instances that , necessitas non habet legem , vid. act , par. ch. . this act was but temporary , and so is useless now . this act is ratified by the act , par. ch. . and the reason why maltmen are discharg'd to have a deacon , is , because at their meetings they might easily conspire to set a price upon the victual , and upon the ale and beer at their pleasure , and force the gentlemen to sell at any rates . it may seem strange that this act made by q. mary should be insert here , but that parliament holden upon the day of april , . is not at all printed , and therefore it has been thought fit to insert this act in favours of the reform'd religion amongst her sons acts , and to let it continue in her name , because it might clear that her majesty had consented thereto in her own reign . this act bears an acknowledgment of the queens deriving her authority royal from god , which has been insert by our reformers , to show their abhorrency of their opinion , who think that our monarchs derive their power from the people . there is no such parliament as that here mention'd to be held upon the of december , . and therefore the act is here renew'd , but it was needless to have made a special act for allowing this to be printed ; for both these acts and might and should have been one , vid. obs . on this act in my crim. tit. treason . king james the sixth , parliament . by this act it is clear that commissions for regents of the kingdom were then subscrived , whereas they are now superscrived ; and were then past under the privy seal ( as all factories , assignations , or other private rights granted by the king are as yet ) but now all such publick trusts are past under the great seal . nota , what was then a regent is now a commissioner , which word is but late , and the regent was then called protector . the first commissioner mention'd in our laws is the earl of montrose , for the parliament . but that inscription speaks nothing of a commission under the great seal , as all subsequent inscriptions do from the year . and downwards . many acts in this and the ensuing parliament bear , with advice of the regent , three estates , and hail body of the parliament , which words , the hail parliament , seems superfluous , for the king and the three estates are the hail parliament . but this was probably inserted either to show the unanimity of the parliament , or to include the officers of state , because they are not comprehended under any of the three estates , and this may be adduc'd to redargue their opinion , who think that the officers of state did not sit in parliament till the parliament . nor do they yet sit as such in the parliament of england . for i find them marked in the sederunts very anciently , but differently , for though now they are called , and are also marked down in the sederunts after the lord barons , and are therefore called lords , yet sometimes the sederunt adds , after the burghs , together with the officers of state ; and the sederunt of the par. bear ▪ that the kings majesty , and officers of state declare the parliament to run , and ordain the articles to meet . it is fit to know that all alienations and dispositions made by persons who were thereafter forfeited for crimes of treason , are null , if they be made post commissum crimen , though they be made before sentence or declarator , and that though it may be pretended that in some latent crimes of treason , such as where treason is inferr'd for concealing and not revealing treason , the subjects could not know the committers guilt , and so might bargain with them , or take rights from them ; but yet such heretable rights are declar'd null because the king having feued out his lands , he is not obliged to acknowledge any singular successors , except their rights were confirm'd , & sibi imputent , who did not confirm . this act is ratified by the act , par. ja. . and all former practiques contrary thereto are rescinded , which clause in that ratification was necessary , because as sinclair observes in his old practiques there had been several decisions past in favours of the earl of mortouns creditors , sustaining rights made by the earl of mortoun , who was after years latent guilt convict for concealing the design of murthering the earl of lennox queen maries husband . as these acts strike against heretable rights made by forfeited persons , so by the act , par. ja. . all bonds , obligations , factories , pensions and assignations granted by forfeited persons , are declared null , except these rights be confirmed by the king , or authorized by a decreet of the judge before the citing of the persons forfeited ; from which act it may be inferr'd , arg. legis , that such rights granted post commissum crimen , but before citation are valid , though not confirmed by a decreet , if they were granted for true debts prior to the committing of the crime , since this act runs only against fraudulent dispositions ; as also , for the same reason it may be urg'd , that where such personal rights are granted meerly to defraud the fisk , they would be null , though confirmed as said is ; for else a man being to commit the crime of treason , might purposely dispone his moveables to prejudge the fisk. nota , that such moveable rights confirmed as said is , will only be a ground for diligence against the forefaulted persons moveables , even as if the saids moveables had fallen to the king by single escheat , but they will not be a ground of diligence against a forefaulted persons real estate . nota , that as gifts of forefaulted lands can only be past under the great seal , so the forefaulted persons moveables should be regularly gifted under the privy seal , being as to the king , the same way of transmission , that an assignation is to a privat party , but in the earl of argil's case , it was found that the moveables of the forefaulted person might be likewise transmitted under the great seals . though by this act the superiors forefaulture does not prejudge the vassals who are innocent , yet this act is expresly abrogated by the act par. ja. . and by our law the vassals rights are null , except they be confirmed , or unless he has originally consented to them , or unless the feus be set in the terms of the act par. ja. . from this act it may be urg'd , that since by a special law , vassals of persons forefaulted in this parliament , are secured , notwithstanding of the forefaulting of their superiors ; yet therefore regulariter the sub-vassals right falls to the king by the forefaulture of his superior , or his own forefaulture , and that not as caduciary for then it would only fall to him with the burden of all rights granted by the vassal : but it falls to the king qua superior , so that he is not obliged to acknowledge any rights , except they be confirmed by himself ; this was debated in the case of general dalȝel contra lady caldwall . nota , the said act par. ja. . appoints this act to be delet out of the records of parliament , and this has been design'd oft-times to prevent our taking abrogated acts , for acts in force , but yet they are still printed ; and some think this necessary , because men argue oft from abrogated acts , as from this act in the said case of the lady caldwal . all monks with us were called friers from the french word , frere , which signifies a brother . the religious women were called , nunnes , from the latin word , nonna , which signifies a sacred virgin. the lands holding of friers or nuns , are by this act declared to hold of the king , and all the lands of monks and nuns are by the act par. ja. . annexed to the crown , quoad their temporality , and though thereafter many of these benefices were erected in favours of laick persons ; yet by the act par. ch. . the superiority of all lands belonging to abbacies , priories , and other benefices belong to the king. this act is explain'd in the act . and is drawn back to all rights made even prior to this act , by the act par. ja. . which is a singular instance of drawing back acts prior to the dates . these acts are explain'd in the observations upon the third parliament of queen mary . king james the sixth , parl. . these acts of this parliament are explain'd in my criminal treatise , tit . heresie . nota , that by the act , arch-bishops , &c. were to be punished , being found negligent by the general assembly of the kirk , the bishops before the year . being but titular bishops , and subject to the general assembly , and were to be deprived by them , as is clear also by the act of this parliament . by the act it is also observable that all the church-men were then only to give their oath , for acknowledging and recognoscing his majesty and his authority ; the oath of supremacy having come in only by the act par. ja. . by this act also , non-residence is declared unlawful , and is yet a cause of deprivation , except it be dispensed with , the habilis modus whereof is by a letter from the king. by the act par. q. mary , the minister was to have the parson or vicars manse , or so much thereof as should be sufficient for him ; and no kirk mans manse or gleib could be feu'd , yet an heretor to whom a vicars gleib was feu'd a year before that act , was allow'd repetition , feb. . . nota. this decision is otherwise related by mistake in the observ . on the said act. the manse comes from the latin word , manere , vid. seldens history of tithes , pag. . by it we understand the ministers dwelling-house , and if the parson or vicar had a dwelling-house or manse , it belonged to the minister , but if there was none of these , no other house could be design'd , though it stood within the precincts of an abbacy , february . minister of innerkeithing contra john keir . if there be no such parson or vicars manse , the heretors must build one by the act of parliament . but thereafter by the act sess. par. ch. . the value is declar'd to be from merks to pounds , so that the minister may build a manse to himself , and he or his executors will get repetition of what he bestows in building , not exceeding pounds ; but if the minister build only to the value of merks , he will not have action against the parochioners for more , though not exceeding pounds , upon pretence that he might have built to that value , january . . charters contra the parochioners of curry : where it was also found , that the reparation or building of the manse , affects not singular successors , and is not debitum sundi . by that act likewise it was found , that since manses are ordained to be built by the heretors , that therefore liferenters are not lyable , which decision may be very dangerous to ministers , since it may oftimes disappoint , or at least for many years suspend their relief ; as for instance , if a father should denude himself of his estate , in favours of his son an infant , reserving only his own liferent , and it may be doubted whether such liferenters per reservationem , may not be lookt upon as heretors in this , as they are in some other cases ; and yet though liferenters were not bound to build manses , yet they were found lyable to repair them , these being but minores impensae , which required to be presently done ; but neither heretors nor liferenters will be oblig'd to pay what is to be bestow'd upon building or repairing , nor to stent themselves for that effect , if they have materials of their own . it has been also found that manses are to be built and repaired where they were burnt or wasted casu fortuito . a gleib is that portion of land that is to belong to the minister , gleba terrae , or a little piece land , and is by this act to comprehend four aikers of arable land , or soums grass , where there is no arable land , act par. ja. . these four aikers are to be design'd out of lands formerly belonging to the parson or vicar ; and if there be none such , they are to be design'd out of abbots , prioresses , bishop , friers , or any other kirk-land lying within the bounds of the paroch , act par. ja. . which order is exactly to be observed in the way set down by this act , as dury observes , july . halyburton contra paterson ; yet i find that bishops lands were design'd before abbots lands , because that bishops have greater interest in the cure ; and albeit it may seem that the designing the most ewest or nearest lands to the manse for a gleib be in favours of the minister , and for his ease ; yet the lordsfound a designation null at the instance of the heretor , whose lands were designed , because there were other lands nearer to the manse , for else any heretors lands within the paroch might be designed for a manse out of prejudice . by the act par. ja. . it is ordained , that ministers who are provided to churchs , where there was no parson or vicar formerly , such as cathedral kirks , or abbacies , shall have a sufficient manse within the precinct of the cathedral or abbay , except the heretors of the precinct provide them to as good a manse , and as commodious . these designations are to be expede according to this act , by the arch-bishop , bishop , super-intendent , or commissioner who shall give their testimonial , how he and two of the parochioners have design'd such four aikers , presently possest by such a man ; upon which designation , with a supplication from the minister , the lords of session are ordain'd to grant letters of horning upon ten days , which is renew'd by the act sess. par. ch. . by which it is also appointed , that such designations of manses shall be by such ministers as the bishop shall appoint , and two or three of the discreetest heretors . by this act benefic'd persons being year and day at the horn lose their benefices , which fall under their liferent-escheat ; but it may be doubted , whether these benefices should fall to the patrons of the benefices , as other lands fall to superiors , to compense their want of a vassal , especialy seing where kirks vaik through the ordinars not accepting of a presentation , the vacand stipends are declar'd to remain with the patron ; or whether these benefices ought to belong to universities , and such as have right to vacand stipends ? or whether they ought to belong to his majesty , and to be transmissable immediatly by gifts in exchequer , as other liferenters are ? and this last is most conform to our law. though it appears by this and other acts , and by our progresses of writs , that the pope us'd to confirm rights made of church lands ; yet that was never necessary by any positive law with us , and feus even of kirk-lands , prior to the reformation , were and are valid , without any such confirmation ; but because about the time of the reformation , which was the . of march . benefic'd persons did dilapidat their benefices ; therefore by the act par. . it was declar'd that all feus not confirmed by the king or pope before that time were null . at this time there were two opposit parliaments sitting , one for the king at striviling or stirling by the earl of ●ennox ; as regent , and another for the queen at edinburgh , and therefore this act ratifies all that was done by the parliament for the king , and annuls all that was done by the other , vide melvils memoirs pag. . vid. observ . on act par. ja. . by this act excommunicat persons should be denunc'd rebels at the instance of the kings advocat , or procurators for the kirk ; but now the kings advocat is procurator for the kirk , after this denunciation their liferent-escheat falls to the king , and all simulat gifts of them are null , act par. ja. . and the excommunicat persons and their tennents are lyable for the rents in solidum , but the payment of the one frees the other ; nor will the defence of fructus percepti & consumpti , for the maintaining of their lives , defend the excommunicat person , as to bygones , the reason whereof is , not because if this could defend quoad bygones , it should defend quoad the future , and so the act of parliament would be evacuat , as is alleadg'd in dury , june . . but the true reason is because the excommunicat person cannot be bonâ fide possessor , since he is so frequently cited . by this act the arch-bishop or bishop may appoint persons for taxing the parochioners , for repairing of churches , if the parochioners elected to tax , refuse , upon which act the lords are ordain'd to grant letters of horning , which is extended to the repairing of kirk-yard-dykes , by the act par. ja. . but it may seem reasonable that the patron should repair the church , since the care of the edifice belongs to him , & ejus est incommodum cujus est commodum , yet our law burdens not the patron , but the parochioners because they get the advantage in it of the word and sacraments ; for which reason also the canon law burdened them in the last place , if there were not a fund for that effect , or if fructus residui ex beneficio , were not sufficient , vid. paul. de citad . de jur . patr . art . . but for this reason , all who are parochioners should be lyable to repair ; and yet the heretors are only lyable , and it would seem that these heretors should be first lyable , who have bought in their own teinds , since they have most advantage by the benefice , the rents of which benefice were by the canon law burdened with these reparations . by this act also , if any intromet with the stones or timber of a demolish'd church , the bishops decreet is equivalent to a decreet of the lords of session , but this is in desuetude . by this act also the parsons of the paroch should furnish bread and wine to the communion , how oft the same shall be administrated , and it seems that by the word , parson , should be mean'd either rector ecclesiae , for he is called the parson , or all the persons who are parochioners , and which seems reasonable , because they partake of the sacraments ; and yet heretors are only lyable , . it is clear from these word , that what is due for communion elements should only be due when the communion is given , but yet heretors are lyable yearly , though the communion be not given , but it should be then given to the poor in that case , and not to the minister . king james the sixth , parliament . from the narrative of this act it is observable that the reformation from popery first authorized in parliament in august ▪ which observation may conduce to clear many things , both in relation to dates and others which depend upon the reformation . by the canon law there could be no divorce upon separation , because marriage is a sacrament , and so could not be dissolved but by death ; but all protestants allow a divorce in case of wilful diversion , and therefore by this act if persons absent themselves , and will not cohabite for four years , they may be cited to adhere , and if divorce follow , the wife loses her tocher , & donationes propter nuptias , and if the husband be the person who diverts the wife , will by the same parity of reason get her conjunct-see , and every thing else to which she could have had right ●f her husband had died , march , . lady manderstoun contra rentoun ; and by our law the party injured has liberty to marry after such divorces . the canon law requires ten years diversion , though this act requires only four years , c. . extrav . qui filii , vid. ritors , de disser , jur. civ . & canon . l. . c. . but even in that case they grant no divorcement , but only separationem quoad thorum & mensam : as to the four years prescrived by this act , it may be doubted whether they should run from the date of the citation only , or from the time of the withdrawing or desertion , and it would appear that since the act of parliament sayes , that if they remain in their malicious obstinacy for the space of four years ; therefore the four years should run only from the date of the refusal , either by citation , or at least by being required ; and yet the commissars ordinarly make them run from the date of the withdrawing and desertion simply , though neither cited nor required ; and though it would seem by this act that four years should interveen before the decreet of adherence , yet the commissars will grant a decreet of adherence upon a years desertion , or less , if it can be proven to be malicious , or design'd , for they think it is enough that four years run before the decreet of divorce . since the act of parliament requires malicious desertion to preceed the divorce , it may be doubted whether citations at the peer and shore of leith to those that are out of the countrey , or at the dwelling house to these that are within the countrey be sufficient , since they may be so cited without being malicious deserters ; and it were hard that a man being taken with pirats or robbers , or necessarily absent without knowing of any such citation , should for years absence lose his wife ; and though in the romish church where there is no dissolution of the marriage this might be sufficient , since upon his return he might recover his own wife , yet it is most dangerous with us , and though these citations be sufficient in other cases , yet there is no parity of reason for their being sufficient here , where malice is required , and where the loss is irreparable . it may be also doubted if a wife remaining in her husbands house , but refusing him all access to her , may be said to have diverted , and i conceive she may , for all the reasons in the one case conclude against the other . the form of process here set down , seems to be borrowed from the saxon law , related by s●edvin . ad tit . instit. de nupt . par. . de divert . & harprech . ad part . . de nupt . num . . & seq . and lest this process may proceed from collusion , by the husbands being desirous to divert upon design to obtain a divorce : therefore by our law the pursuer is obliged to swear that there is no such collusion . in place of letters in the four forms mentioned in this act , letters of horning are now summarly granted on all commissars decreets , act . par. . ja. . as also on the decreets of sheriffs , stewards a●ts , bailies , &c. act . par. and act par. ja. . for of old horning being under the sessions signet , 〈◊〉 only granted on decreets of the lords . this act is in desuetude , for salt may now be lawfully transported , but then we had not enough to serve the countrey . by this act every cowper is to put his own mark upon his own barrel ; but by the act , par. ja. . there are staples appointed for salmond ▪ where a gadge and mark is to be kept . this act relates to the time wherein grange kept the castle of edinburgh for the queen . king iames sixth , parliament . by this act ministers gleibs are not to pay teind , which is extended by the act par. . ja. . so far that ministers gleibs are thereby to be free from all impositions whatsoever , and it was found the of june , . burnet contra gib , that not only gle●bs of kirks establish'd by law were to be free , but even gleibs of chappels where there was divine service ordinarily ; and this priviledge of being free from teinds was to be extended not only to ministers gleibs , whilst they were possess'd by the ministers themselves , but that even the gleibs of vicars were to be free from teinds , when come in the hands of laicks , except it could be alleadg'd that within these years bypast these laicks had payed teinds for these gleibs , albeit this act of parliament be only conceived personally in favours of ministers , but not really in favours of parsons or vicars manses , july , . earl of queensberry contra dowglass . this act is conform to the reform'd churches abroad , vid. carpz . jus consist . by this act the lords are ordain'd to direct letters of horning at the chancellors and bishops instances , for charging the havers of writs belonging to hospitals summarly to produce them , and the clerk of the bills having refused to pass a bill upon this act , as being in desuetude , and as having been at first but temporary , because it ordains a report to be made betwixt and pasch next , yet the lords ordain'd such letters to be granted , and found the act neither temporary , nor in desuetude , january . hospital of northberwick . vid. observ . on the act , par. ja. . and on the act , par. jam. . this act is explain'd in the and acts par. ja. . though by this act it is declared only that in the competition betwixt such as have obtained confirmations from the king , the last right first confirmed shall be preferr'd , yet this holds also in rights , holden of other superiors , because if the right be given to be holden of the superior , & a me , it is no compleat right till it be confirmed , and the first compleat right is to be preferr'd . nota , from this act that the lords of exchequer ought not to refuse to grant confirmations , & de praxi , if they refuse , the kings vassals protest that their refusal shall not prejudge his right . but i find that where many creditors were confirmed in one day , the lords preferr'd them according to their diligence , and there having taken seasine , and not according to the date of presenting the signatures , since neither were negligent , nor had used precipitation , for they shun'd to determine that the exchequer had not preferr'd or brought in all justly , for that were to make the two courts interfeer , december , . mill contra pasoules ; but in the competition betwixt two confirmations , the lords found that the first who had past the seals was to be preferr'd , and that the preference of the confirmation was to be judged by the passing the seals , and not by the date of the signature , since it is not the signature , but the charter that preferrs , because a charter first past the seals , though upon a posterior signature , will be preferr'd as the more compleat diligence , the seal being in place of the king's subscription , and consequently the date of the charter is not still to be looked to , since the charter bears still the date of the signature , and the date of the passing of the seals is proven in our law by an attestation under the hand of the keeper of the seal ; for though that attestation may seem to be the testimony of only one witness , yet it is actus officii , and the minut-book is a sufficient check upon his attestation , february , , clackmannan contra earl wigtoun . it is also observable from this act that albeit the keepers of the seals are discharged to pass double confirmations of rights of the same lands , yet de praxi the exchequer and seals pass very frequently such double rights periculo petentis , and though where the obtainer of the first right cannot instantly exclude the second , as by clearing that the granter was denuded , and so the second right was null . there may be some pretext for granting such double rights , periculo petentis , the exchequer not being judges competent to the competition of double rights , yet where the first can clearly and instantly exclude the second , there is no reason for passing the second , for by passing such double rights , the first is put to the necessity of a reduction , since no right once passed under the great seal can be annulled by way of exception , but only by way of reduction ; and since the second right , though null , may be the foundation of a prescription , and will establish a full right in the obtainer , if he continue years in possession . this act prohibiting flesh to be transported in ships , except in so far as is necessary for victualing the ships , is now in desuetude . king iames the sixth , parliament . it is observable that in this act is said , that our soveraign lord has declared and granted jurisdiction to the kirk , which consists in the preaching of the word , the correction of manners , and the administration of sacraments , which inferrs that ecclesiasticks have no temporal jurisdiction save from the king , which the canons have also acknowledged , as shall be clear'd in the act concerning the supremacy : but they are acknowledg'd to have had an ecclesiastick jurisdiction , for the act bears , has declared , and this ecclesiastick jurisdiction is declar'd to consist in preaching , correction of manners , and administration of sacraments . this act discharges gaming and drinking in ale-houses on the sabbath , and is considered in the act . par. . ja. . though such young noblemen or gentlemen as go abroad , need not now licences from the council , nor to make application to the bishop or superintendent within dayes after their return , yet if the council suspect that they are like to change their religion , they use to cite the parents , and to force them to bring home their children , or else to imprison or fine them as they see cause . this act was renewed by a proclamation of council , january , . by this act the labourer is to require him who has right to the teinds , to come and teind within dayes after the shearing , by making premonition on three sabbath dayes after the shearing , which is by the act , par. . ja. . restricted to two sabbaths ; and thereafter by the act , par. . ja. . it is appointed that the teinding beat three several times , viz. the in-field at one time , the bear at another time , and the out-field corn at a third time , and that dayes interveen after each compleat shearing ; but all this is innovated by the form set down very fully , act , par. . ja. . which last act is now in observance , and being fully consider'd needs no further explication . vid. crim . pract . tit . idle beggers , and observ . on the act sess par. ch. . where this act is ratifi'd and enlarg'd ; in this act excellent overtures are set down for punishment of vagabounds , and these who flee from their masters service , who by this act are appointed to be burnt in the ear , and scourg'd for the first fault , and to suffer death for the second ; so far can the repeating of a crime highten its punishment , even in mean crimes : analogical to this act is the tit. ff . de fugitivis , where likewise many excellent overtures are propos'd . albeit by this act , all the hornings are to be registrated in the sheriff-books of the shire ; where the rebel lives : yet by the act par. ja. . in case the sheriff refuse to registrat the same , it is sufficient that they be registrated in the general register ; but if the horning be for a criminal cause , it must be registrated in the books of adjournal , act par. ja. . observ. o. that horning against witnesses need not be registrated at all , nor can witnesses escheats fall upon such denunciations , because it were hard to put the pursuer to so much expenses , or to make an escheat fall for a negligent contumacy . observ. o. that denunciations at the mercat cross of the shire where the rebel dwells , should only debar rebels , ab agendo , and not denunciations at the mercat cross of edinburgh , as was found january . . blair contra blair ; and even these defenders who are denunced at the head burgh of the shire , cannot be debarr'd from proponing that which requires their personal presence , nor are their creditors or assigneys debar'd from pursuing . observ. o. though by this act the thesaurer has power to intromet with the rebels goods , and may raise letters for that effect , which were call'd letters of intromission ; yet now escheats must be gifted , and the donatar must raise summons of general declarator thereupon , wherein it must be try'd , if the rebel was lawfully denunc'd ; and after general declarator , he must have a decreet of special declarator , which is in effect only a decreet for payment , though it be abusively call'd a special declarator ; and the former letters of intromission are justly found not to be legal now . the affixing a roll of the rebels names here mentioned , is in desuetude , except as to fanaticks , and these who pay not the kings publick dues . some doubts concerning this act are explain'd in the act par. ja. . this act is explain'd , crim. pract . tit . libels . by this act the pains of breaking law-burrows , is to be divided equally betwixt the king and the party injur'd ; and the reason of this is , because the king is injur'd by the breaking of the law-burrows ; the charge of law-burrows being in his majesties name ; and though ordinarly the party charged finds caution of law-burrows ; yet if after the charge any prejudice be done , the party charged is lyable , because the charge is contemn'd , july . . semple contra cuninghame . the civil action whereby this breach of law-burrows is pursu'd , is call'd an action of contravention , and must because of this act of parliament , be rais'd at the kings advocat's instance , as well as at the instance of the party injur'd , and the pursuers title is the charge , if no caution be found , or the extract of the bond of cautionry , if caution be found ; the ordinary deeds whereby contravention is infer'd , are beating or stricking the party to whom the lawburrows is found , or his servants , except the servants or tennents were beat upon a special account , no ways relating to the master ; which speciality must be proven , or else it s presum'd to have been on the masters account ; and for the same reason it is , that though the stile of letters of law-burrows bear , that the complainer , his men , tennents and servants , &c. shall be skaithless in their persons , lands , heretages , goods and gear ; yet the taking of two horse from the pursuers tennents , was not sustained to be a contravention , because that was not done on the masters account , nor was the tennent himself pursuer , january . . grant contra grant. nor was for the same cause , the breaking up the tennents house , and taking some goods out of his chest , found a contravention , february . . lindsay contra denniston . but since it was not a contravention , because the master was not concerned in the injury as these decisions bear , i see not how the tennents concourse could have altered the case , quoad the contravention , though in both cases the tennent may pursue damnage and interest . all lawyers are clear , that there must be clear grounds of injury alleadg'd , and therefore feeding bestial upon controverted lands , is not sufficient , december . . but in mutual contraventions upon that head ; the lords allow'd both parties to turn their libel in a molestation , and granted commission to examine witnesses hinc inde , january . . rouchlay contra wood. nor would the lords find that pasturing upon waste high-land-ground , should infer contravention , except it had been done by the masters command , or frequent herding to his knowledge , july . . earl of airly contra m cintosh . but yet if deeds of violence be done , even upon debateable lands , that will infer contravention , such as the hoching of oxen. this animus injuriandi is so necessary , that deeds done by drunken-men , are by many lawyers thought not to infer a contravention , christin . tit. . art. . and the adulterating the pursuers wife , will not infer a contravention , because this is not done animo injuriandi , but animo libidinoso christin . art. . he likewise thinks , that threatning real injuries is sufficient , and threatning is a great breach of the peace , especially when it is by a man who uses minas prosequi , but verbal injuries , per se , are not thought sufficient by lawyers , nor have we any decision sustaining a contravention on that head . since by this act the king and the party have different interests , therefore imprisonment or paying of a fine to the king by prior sentence , will not exclude a pursuit of contravention at the parties instance , march . . futhie contra carmichael , and january penult , . johnston contra laird of westnisbit . and certainly that decision related by hope tit . contravention forrest contra turnbul ; where it was found that the kings advocat could not insist alone in a contravention , if the party injur'd discharged the deed , though after the intenting of the cause , is an illegal decision ; for seing the king is injur'd crimine fractae pacis , and that by this act the king has right to the half of the penalty , and had formerly right to all by the act par. ja. . the party cannot discharge the kings part . contravention is a penal action , even at the privat parties instance ; and therefore titulus coloratus , will defend against it , and thus a contravention being libelled , as infer'd from the casting of a ditch , whereby the pursuers land was overflow'd . the lords found that a consent from the pursuers father , though he was but liferenter , did defend against that action , january last . l. weyms contra l. gairntilly , without prejudice to pursue an action of damnage and interest ; to which the lords turned this libel , without necessity of a new process . and this action is likewise elided for the same reason , by subsequent dissimulation ; and therefore a pursuit of contravention , founded upon cutting of trees in the pursuers wood , was elided by the same pursuers granting licence thereafter to the same defenders to cut in the same wood ; which posterior licence the lords found did infer a presumptive remission , january . . denniston contra lindsay . nor is this contravention infer'd by injuries , done upon provocation or self-defence , but though provocation seems to be good against the provocker , yet it seems not to be good against the king ; and it may be doubted whether the penalties of the acts of parliament may be sought , by and attour the damnage and interest , or if the damnage is to be a part of the penalty . hope observes from the narrative of this act , that as only landed men can be judges in perambulations , so landed men ought only to be received witnesses in heretable debates ; but this observation holds not in our practique , which allows any habile witnesses in perambulations , and all other heretable debates . by this act all heretable obligations , or writs of importance , are to be subscriv'd , and seal'd before two famous witnesses , if the parties can write , or by two famous notars , before four famous witnesses , if they cannot write . observ. o. that sealing is not necessary , but subscription is sufficient in parties , and is not necessary in witnesses by this act , though it be requisit by the act par. ch. . even in witnesses also ; and though the sealing be only remitted in papers to be registrated by the act par. ja. . yet it is not necessary in any writ by our present custom . observ. o. that in our practice ; all writs exceeding an hundred pounds , are interpreted to be writs of importance , and so to need witnesses , january ult , . but if any sum be to be annually pay'd , that writ whereby it is to be pay'd , requires witnesses , though never so small , because yearly prestations may arise to a considerable sum , july . . and though sums above pounds , require writ ; yet intromission with victual or any thing else , probable by witnesses , as all other things consisting in facto are ; as also , intromission with uncoyn'd money or silver in mass , is probable by witnesses , though exceeding pounds : but promises & nuda emissio verborum , though for less sums than pounds , are only probable by writ , because by standers may mistake the position and force of words , january . . douchar con . brown. observ. o. this act is only to be extended to such things as require writ , ex sua natura ; and to which writ uses to be adhibit for merchant-bargains made in mercats , do not require w●●t , and so are probable by witnesses ; for men use not , nor cannot adhibit writ in such cases ; nor are witnesses requisit in discharges granted to tennents by the masters , because of their rusticity , and the smalness of the sums : nor are witnesses requisit in contracts of marriage , upon which marriage has followed , nam notorietas facti habetur pro testibus , july . . breidie contra breidie . but it may be doubted whether this holds in strangers , such as are third parties ; and i think they are not oblig'd to pay the tocher , though it certainly holds in the man and wife themselves who contract ; and though it hold not in third parties , who are meer strangers ; yet it should hold in the father , when he obligeth himself to pay the tocher , where there is a tripartite contract subscriv'd by many parties , they are in place of witnesses to one another , all parties having subscriv'd , july . . forret contra veitch . and a writ having the substantials filled up with the granters own hand , is equivalent to its being subscriv'd by witnesses , january . . vans contra malloch . observ. o. though the sum exceed an hundred pounds ; yet if the pursuer restrict his pursuit to an hundred pounds , it is probable by vvitnesses , july . . wallace con . muir . vvhere the parties cannot write , two notars and four vvitnesses are required by this act ; but yet a merchants mark is sustained , if it can be prov'd , that he us'd to subscrive so , february . . brown contra johnston . but this is only sustain'd amongst merchants , and to facilitat commerce : but it seems that in law , no such mark should be sustain'd , except where the writ has witnesses also . subscription also by the initial letters of the subscrivers name , is sustain'd , if the subscrivers be prov'd to have still subscrived so , these instrumentary vvitnesses are presum'd to have been chosen by consent , and therefore sons , servants , &c. may be vvitnesses ; and it may be doubted if vvomen may be vvitnesses in vvrits ; but it is still sit to choose disinterrested vvitnesses , for if the granters own relations be witnesses , and one of two of them deny his subscription , the writ will be reduc'd as null , though not improven as false , as was found in nimmo's case . these vvitnesses are by this act to be design'd by their special dwelling , or some evident token , by which they may be known , as to which . observ. o. that though designation by the dwelling-place , be declar'd sufficient by this act , yet if that designation be too general , as that the witness is in-dweller in edinburgh , and that there be many of that name there : or the person cannot be known by that designation . the lords will ordain them to be more particularly condescended on , even by an assigney , who may pretend that he is not oblig'd to know who the witnesses were , but that it was sufficient for him to see that the bond had witnesses , but yet that the witness was servitor to the earl of southesk , though the earl had more servants of that name , february . . observ. . that though the act say that the writ shall be null , if the witnesses be not design'd in the writ ; yet the lords will allow the pursuer to design the witnesses if they be insert , though the witnesses so designed be dead , and many years have interveened since the writing of the paper , but in that case they will ordain the designation to be astructed per comparationem literarum , and an oath in supplement , july , . colvil contra the executors of the lord colvil ; but if the writ mention no witnesses , the lords will not allow the pursuer to condescend who were witnesses , and to design these witnesses , jan. . magistrats of contra the earl of finlator . all which holds only in cases arising from writs prior to the act , par. . ch. . by which act witnesses must be subscriving and design'd , else the writ is null . i find this whole act was verbatim made in france at moulins , anno . and has been brought in here very shortly after , viz. . there is a learned commentary writ upon it by bosellus , borderius , which may be very useful in our practice . i find also that by the edicts in flanders , nothing can be proven by witnesses above pounds , vid. stockman . decis . . by this act , spuilȝies , ejections , and others of that nature prescrive in years . o●s . . that though the action of spuilȝie and ejection prescrive quoad the specialities indulged by the law to these actions , which are , that violent profits will be granted , and that if the pursuer prove that the spuilȝie or ejection were committed , he may tax his own dammages per juramentum in litem , yet if the pursuer restrict his action to wrongous intromission , or re-possession , he may pursue for the same at any time within years , march , , . inglis contra kirkwood . observ. . that from these words in the act , and others of the like nature , the lords have found that an action of intrusion prescrives within years , february , . as also , that an action for demolishing of a miln , or an action intented for the dammage and interest sustained in ryving out a common moor , and generally all such actions as arise from violence , and inferr upon that account extraordinary dammages , do prescrive within years , quoad the extraordiness of the dammage . observ. . that nothing but a formal pursuit of spuilȝie interrupts this prescription , and therefore an action of oppression and depredation intented before the justices , was not found sufficient to interrupt this prescription , though that was a more exuberant conclusion , and so included spuilȝie as a lesser , and the justices are judges ordinar also ; and by this act it is enough to pursue before the judge ordinar , february , . master of rae contra dumbeath . actions of removing prescrive so ( if not pursued within three years ) that there must be a new warning before any removing can be intented , and the lords have found that these three years are to be computed from the time to which the warning is made , but not from the date of the warning . by this act all actions for house-mails , mens ordinar servants fees , merchant compts , and other like debts prescrive in three years . observ. · that these actions are not absolutely extinguished by the prescription , but after three years they become probable only by writ , or oath of the defender , whereas if they had been pursued within three years , the debt was probable by witnesses , and this act is founded as i think upon the presumption that men would not suffer such debts to ly over for longer than three years , without taking an obligation for them in writ , and the presumption lyes for their being yearly pay'd , and that which was praesumptio hominis , is after the current of three years made here praesumptio juris & de jure & lex statuit super prasumpto . observ. . these words , or other the like debts , that are not founded upon written obligations are dangerous , as all such general clauses are , which make the people unsecure , and the judges arbitrary ; and though one would think that maills and duties of lands ought to prescrive as soon as any of these , since it is not presumeable that these would be suffer'd to be unpay'd , yet it was found they did not prescrive in three years , january , . ross contra fleming . by this act house-mails , &c. prescrive , if they be not pursu'd within years , and therefore the libel for such debts is not relevant , except it be expresly libell'd that such duties were owing , and are yet resting unpayed , and consequently the tennent may depone that he possest but that he payed , which quality is receivable , and yet if the tennent depone simply that he possest and forgot to adject the quality , the lords would not sustain it to be adjected ex intervallo , at the advising of the cause ; or in a suspension or reduction , unless the tennent could prove that the master would not suffer the quality to be receiv'd , or would offer to prove payment by the masters oath . observ. . it may be doubted whether this act ordaining merchant accompts to prescrive in years , doth reach to compts owing to strangers , for they seem not oblig'd to know our law , and this would ruin all commerce & locus contractus semper attendendus . but it was found that this act does extend to all merchant goods , as well when sold in gross as by retail . it may be doubted whether these two last acts run against minors , since it is provided expresly that prescriptions against spuilzies and ejections shall not run against them , which shows that if this had been design'd in the other prescriptions , the same clause had been renew'd , since it was under consideration , and so seems not to have been forgot only , and there seems to be some reason for this , since minors are prejudg'd by spuilȝies and ejections , and so prescriptions in these should not run against them , but in removings the hazard is only that a new warning must be used , and in other the like debts , the only loss is that the debt cannot be prov'd by witnesses after three years , and so since these prescriptions did little hurt to minors , it was not necessary to stop their course . it is also observable , that though all these prescriptions run in years ▪ yet if actions be once intented , they stop the prescriptions , and thereafter spuilȝies , removings , or aliments , &c. do not prescrive in less time than years , as all other debts do ; and till then violent profits are due , or the like debts may be prov'd , as if the action had been pursu'd within years , january , . herring contra ramsay : as also by our late decisions , if the pursuer has continued to employ a merchant the currency of that compt , and trust will preclude the prescription , so that many former years preceeding the three last may be craved , though this act ordains all merchant compts to prescrive within that time , but if a bond be taken for these posterior years , it is thought that cannot be called a current compt , and it may be debated whether in law one or two articles will make a current compt , and if it do , there may be many wayes taken to elude this act , vid. december , . somer●el contra the executors of muirhead . this currency extends to brewers compts of furnishing , november , . wilson contra ferguson ▪ ( vid. sand. lib ▪ . decis . tit. . ) though it was alleadg'd that albeit it should hold in merchant compts where there are discharges taken , and where a compt book adminiculats the recept , yet it ought not to be consider'd in furnishing of ale , where neither of these are observ'd ; and yet this currency was not respected in servants fee● , for these same reasons , and because a servants fee is alter'd at the masters discretion , february , . ross contra mr. salton . vid. crim. obs. tit. forestallers , and tit. . it may be doubted whether this act that gives power to the sheriffs and other judges , to throw down cruives and yairs , ought to be extended to dykes built over waters , or a part of the water , for making a dam to a miln . o. vvhether sheriffs or lords of regality , &c. may execute this commission for their own advantage , and where they themselves are the parties grieved , since that were sibi jus dic●re , and they would probably be partial , whereas they may get others to execute the same . this act discharging exportation of coals is now in desuetude . this act fining such as propone unjust exceptions , or lose the pley within burgh , for the use of the poor , is conform to that title in the civil law , instit . de panis temere litigantium ; for there can be nothing so absurd and unjust , as that men should not at least have their true expenses upon oath ▪ whereas we use to modifie little or nothing , even where there is not the least colour for a pursuit , or defence , and this i think a great iniquity in all judges who are guilty of it . vid. instit . de paen ▪ temere litigantium . by this act the lords of session are ordain'd to distribute justice without respect to any privat writing impetrat from his majesty , and by this his majesty is freed from importunity , and his people from unjustice . this was formerly statuted by king david . cap. . & cap. . and by the . cap. statut. . rob. . judges are ordain'd to judge secundum leges antiquas ; and in the civil law , per l. . & . c. si contr . jus vel util . publ . & per novel . . cap. . and in the canon law , cap. . de rescript . this same law is also in france , and is learnedly treated by rebuff . ad constitut . reg. tit . de rescript . and plutarch commends antiochus for having made a law in these same terms ; but though the former statute of king david warrands the judge not to respect that command , but to indorse and send back the warrand , and not execute the unjust command , which is by the . cap. of the same statutes extended so , that they are not oblig'd to delay justice upon any such privat warrand ; yet i find by § . . cap. . of these same statutes , that the king may discharge or prohibite a judge to proceed in the case of perambulation , for certain causes ; for reconciling which statutes , it must be answered , that the king cannot either simpliciter discharge a perambulation ; nor any other process , but that he may discharge it for weighty causes , relating to the publick , to which all privat interests must cede even as he may remit crimes for such causes , though these be of greater consequence , or rather that the king may discharge perambulations , because the publick peace is oftimes concerned in these , since there used to be ordinarly great convocations at such perambulations ; and therefore the justice general was of old only judge competent to perambulations . upon march . . the queen regent appears in the session and declares that the lords should proceed to do justice , notwithstanding of any letter or order from her , which is marked in the books of sederunt . observ. . that before this act the council us'd frequently to discharge the lords of session , to proceed in judging privat causes , whereof many examples are to be seen in hopes larger practiques , and an instance of it is to be found in the act of this parliament ; but that custom is here discharg'd , and as yet the council uses frequently to discharge the justices to proceed . and notwithstanding of this act , i find in the registers of council , . king james revocks in two several cases , gifts granted by himself , and discharges the lords of session , to sustain action upon them . observ. o. that the lords are also allowed to proceed , not only to decide , but also to cause execute their sentences , notwithstanding of such privat writings , charge or command , so that the privy council cannot suspend the lords sentences , neither by an act of council , nor yet by letters under the signet ; but yet the privy council , by vertue of their late commissions , are allowed , and do usually grant protections , whereby the executions of the lords sentences are oftimes stopt . in so far as this act discharges the lords of session to take buds or bribes , i have explain'd the same , crim . pract . pag. . observ. o. that the lords are allow'd to reject any person whom the king presents to them to be a lord , if he be not qualifi'd and of good fame ; and therefore the lords us●d when the king presented any person to be a lord ( which was by a letter direct to the session , wherein the king did nominat him a lord ) to name some of their number to examine him . but now the form of tryal is more severe , and is set down in his letter direct by his majesty in anno . whereby they are immediatly after pleading to resume the debate , and to give their opinion first in a cause debated in praesentia , and to sit with the ordinary in the outter-house , and to report some causes there debated , and to give their own opinion , with the reasons thereof . observ. o. that by the first institution of the session , the president was still an ecclesiastick person , and of the dignity of a prelat , as this act says ; and yet i see no such article in the first institution ; but however , that is here dispensed with for the future ; for by the act parl. ja. . it is only said , that the session shall consist of fourteen persons , the one half spiritual , and the other temporal , with a president . by this act the tenor of letters of horning , and of the executions thereof , cannot be proven by witnesses ; the reason whereof i conceive to be not only , because upon such letters , mens escheat and liferent may fall , and that were of too great importance to be proven by witnesses , since our law does not allow any debt above an hundred pounds to be proven by witnesses ; but because witnesses can neither know nor remember the exact tenor of all the formalities of executions and stampings thereof ; and so strict are the lords in the observation of this act , that after the horning and executions were registrat , they would not allow the messenger to add the word , three oyesses , in his executions , though he offered to prove that there were truly three oyesses , and was content to bide by the execution so amended , and that the executions did bear the words , thee oyesses , which wanted but the letter r , to make the oyesses ▪ three oyesses , vid. july . . sir john keith contra sir george johnston ; and july . . stev●●son contra innes . it may be 〈◊〉 whether the tenor of such letter● may be proven , if there 〈…〉 other adminicles in writ , since even papers of the greatest ●mportance may be thus proven by witnesses , and there is no paper whereof the tenor may not be proven , nor is the proving of a tenor here discharged , and if the letters of horning and executions be registrat , the registration takes both off the suspicion of falshood , and makes the witnesses who are to depone know what solemnities were used ; but yet it will never appear by the registrat extract , whether the executions were stamped , and yet this point being sacti , may likewise seem to be probable by witnesses who saw the same stamped . in the case betwixt boyd and malloch , december . . the lords inclined to think , that even executions of hornings being once perfected by writ , and thereafter lost , might have their tenor proven , though by this act it would not be originally proven , that letters of horning were execute , but they were all clear that this act was siricti juris , and did not extend to executions of comprizings ; and therefore they found that the tenor of such executions might be proven . nota , that a registrat extract will not stop a certification when a horning and its executions are call'd for , but the principal must be produc'd . the parliament having ordain'd that the witnesses to be used for proving the tenor of the executions should be led in the lords own presence . it may be urg'd argumento ●ujus legis , that witnesses for proving of all tenors , should be led in praesentia , and which is very reasonable , because proving of tenors is nobilis officij , & altissimae in daginis . it is likewise observable in this case , that though the parliament made an act for regulating that point for the future ; yet they left the decision of the case depending to the common law. it is fit to know that there being a staple appointed where all staple goods to be brought from scotland , are declared free of all custome laid upon imported goods , which was a very great favour . it was therefore very just that no merchant should have liberty to enjoy the priviledges of the said staple , except he would give his oath of obedience to the king , and pay his entry in that incorporation . this and the subsequent act are still in observance , and the conservator uses to raise general letters against such as break the same , by warrand from the council who are the ordinary judges in these cases , except where matter of privat right falls in . king james the sixth , parliament . by the old canons all ordinations were null wherein the persons ordain'd was not intitled to a certain church , can-sanctorum distinct . . and thence it was that all ministeria vaga , wherein a man was ordain'd a minister , without respect to any particular church or charge , were discharg'd by our church , though in the lateran council thereafter the ordination was allow'd , but the bishop who ordain'd was oblig'd to aliment the church-man ordain'd , without a suitable living . by this act paroches are to be design'd and circumscrib'd , and every paroch to have its own stipend and pastor , but this quota was not determin'd till the commission of surrender of teinds in anno . determin'd that the lowest proportion of a ministers stipend should be chalders of victual , or merks , which act is thereafter ratified by the act of the par. . it is also provided by this act , that all kirks annext to bishopricks be provided to ministers , and when the title of any prelacy is conferr'd on any , that the said stipend be reserv'd , the reason whereof was , that the pope us'd to unite parochs and benefices to bishopricks , upon pretext of the meanness of bishopricks ; and therefore in the beginning of the reformation , when titular bishops were made , it was thought just that these parochs should be again provided with special ministers . we call him a titular who has the title of a benefice , & qui est in titulo , and thus the seculars who had right to the teinds due formerly to the church , are call'd the titulars of the teinds , and by the old canons it is clear ; that quaedam beneficia a titulo pendent quaedam a reditu , and these tithes are in the ecclesiastick history said to have had their origine , either ab intitulatione in codicem & matriculam cujuslibet ecclesiae un de intitulari dicebantur in canon . sanctorum , distinct . . or from the old custome of fixing upon the altars or churches the titles of these who were presented to it : some also think that most offices in the church had their denominations from the offices in the state and army , there being an analogy inter militiam armatam & coelestem , and that there were titulars allow'd in the one as in the other , vid. bengaeum de titulis beneficiorum , cap. . it is clear by the said canon . sanctorum distinct . . that singula beneficia certo loco & ministerio circumscripta erant , as in this act of parliament . by this act it is not lawful for any who are provided to benefices under prelacies , to dilapidat their benefices . that is to say ; to set them with diminution of the rental which they payed at their entry ; and if the minister contraveen , he is to be deprived , and the right to be null . but by the act , par. ja. . all rights made by prelats with diminution of the rental , are null , and the conversion of victual payable to them into money , below the worth , is by that act declared a diminution ; they are also thereby ordained to find caution not to dilapidat the benefices . likeas by the act par. ja. . the dismembering any part of the benefice , is declared a species of diminution , and so null . it has been justly doubted whether a bishop obtaining certification in an improbation whereby the land returned to the bishoprick might thereafter dispone these lands by a new right ; and it has been decided that this was no dilapidation , if given for the same rental or feu duty they payed before the act . for such certifications being fr●quent , and the design of these certifications being only to force the feuers to produce , it were hard to extend them , especially since the design of these acts is only to hinder the beneficed persons to diminish the rental and value of them the time of their entry , january , . bishop of caithness contra his vassals . it seems that there is eadem ratio for sustaining rights by the successor of that beneficed person who obtained the certification , though it may be alledg'd against him that he is oblidg'd to leave the benefice in as good a condition as he found it : it may be alledg'd that the same reason should sustain rights made by beneficed persons who have obtained reduction , ob non solutum canonem . these acts are so comprehensive , that the act par. ja. , seems unnecessary . by this act if any man was rob'd by any of a clan , he may kill or arrest any of that clan , if it be found by a legal tryal that the clan'd man who did the injury , was harbour'd amongst the clan , after the injury was committed ; but though this seems as just as letters of reprysal are , yet it is now in desuetude justly , for crimina suos tenent authores . these two sumptuary laws are in desuetude ; but in the act , a case is observable , wherein even the kings licence for transporting wool is not to be respected , but is to be esteemed surreptitious . this act seems strangely insert here , since popery was abolisht long before this act. vid. observ . on act par. ja. . by this act all actions of deforcement , and breaking of arrestment , are ordain'd to be summarly discust by the lords without delay , and therefore they might have been excepted from the order of the roll set down in the late act of regulations , but yet they are not , for they must abide the order of the roll , as other actions , and all the priviledge that they have quoad this , is that , they come in upon six days warning , and need not be continued , that is to say , they have but one diet. it is fit to know that these actions may be pursu'd civily or criminally , and the punishment is confiscation of moveables , and an arbitrary punishment of their person . observ. . that the creditors injur'd by the breaking of the arrestment , are to be prefer'd to the fisk , the reasons whereof was , that it seem'd unjust that a creditor doing diligence , for his own debt should be disappointed by his own diligence , as he would certainly be , if when he had pursu'd , and prevail'd in his action for breaking of arrestment , that the parties escheat falling by this diligence , the king should be prefer'd to the user of the diligence , and we see likewise in all such cases the party offended is still prefer'd to the fisk ; and thus where parties are at the horn for a civil debt , the donatar of the escheat is still lyable for the debt : and in theft by act of parliament , the party injured is prefer'd to the fisk , but it seems strange , why by this act the gift of escheat is declar'd null if it be not expresly burdened with the creditors debt . it might seem more convenient that the gift should rather have been burdened with it , as in other cases . observ. . though by this act it be declar'd that the debt shall be pay'd out of the offenders moveables , yet that does not hinder the party offended to do diligence against the offenders real estate , for what sums the lords shall modifie . observ. . that arrestments may be made , not only in the hands of these who owe any thing to the debitor ; but arrestments may be even made in the debitors own hands , which though it may seem strange , yet it is done to the effect , that if the debitor shall be found to have alienated any of his moveables so arrested after the arrestment is laid on , he may be pursu'd for breaking of arrestment , and punished conform to this act. these arrestments are used in the same sence , and are execute in the same way that we use them , and all this subject is very well treated by christin . tit. . ad leges mechlin . argent tit. des arrest . . by the civil law prodigals ( under which name were comprehended all such as manag'd not well their affairs ) got curators only by a judge ; but with us they are interdicted ( and their interdicters are their curators ) and that either judicially , or by consent , but though it may seem that if a man interdict himself , he cannot reduce that interdiction , because he has consented ; nor yet should obligations granted by him , be sustained , though he be thereafter found by the lords to have been provident since the publication did put all in mala fide , to contract with him ; yet papers granted by him will be sustain'd on that head , and even the interdiction it self will be reduc'd as contrary to natural liberty , the granter being mentis compos & rei suae satis providus ; and there having no precognition preceeded , december . . gerhan contra hay . february ● . . forbes contra forbes , which leaves the people in great uncertainty ; and it seems much better that voluntar interdictions were absolutely taken away ; though i believe voluntar interdictions have been introduc'd amongst us for preservation of ancient families ( for they extend not to secure moveables , or against personal execution ) and it was found that many weak persons would consent to a voluntar restraint , who would not compear judicially to be restrained ; and the letters of publication passing upon a bill by deliverance of the lords of session , seems to be a kind of interposing of the authority of a judge , and so to make the voluntar interdiction a judicial interdiction : but the narrative of this act confesses that interdictions upon consent , are beyond the first design of the law. it is observable , o. that interdictions need not be intimated to the party interdicted , or execute against him , december . . seaton contra elleis . though inhibitions must be execute against the person inhibited ; the reason of which difference is , because the person interdicted having consented , there needs no intimation be made to him . obs. o. the stile in all such letters , is ordinarly the rule of all decisions upon them ; and yet interdictions were found not to annul moveable bonds , though the letters did discharge the granting such bonds , and that because interdictions do naturally strick only against alienation of heretage ; our law thinking moveables of lesser importance , or else because that would stop commerce , and straiten too much the person interdicted , july . . bruce contra forbes . june . . cranford contra hamilton . and though an inhibition did expresly discharge the granting of renunciations ; yet a renunciation of a wodset was not reduc'd , as granted after inhibition , since the wodset was prior , and so the renunciation by the person inhibited , depended upon a prior obligation , july . . elleis contra keith . but by a late act of sederunt , the of february . it is declar'd , that if the user of an inhibition shall intimat to the person who has right to the reversion , that the wodsetter or annualrenter stands inhibited at their instance , and shall produce the said inhibition , duly registrated at the time when he intimats , that then the renunciation , or grant of redemption , though proceeding upon true payment , shall not be sustained without citing the inhibiter . there were no formal inhibitions in the civil law , but the doctors speak of a prohibitio alienationis equivalent thereto , m●vius de arrest . c. . num . . arrestari possunt res mo●iles imm●bilium supervacan●um est arrestum cum loco moveri non possunt ejus tamen vice quoad illas obtinet prohibitio alienationis quae impetrari solet a judice quoties justus metus est ne alienando debitor deteriorem reddat petitoris causam essicitque ut non ●iat alienatio ipsius rei & num . . judex ob aequitatem talem inhibitionem decernere debet & num . . pro arresto habetur in immobilibus interdictio usus corum , so that interdictions and inhibitions are a resemblance , if not a species of arrestments , and i think with maevius , that the word comes from the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 placitum incorruptum vel inviolatum , because by all these remedies the obtainers rights are preserv'd inviolable . inhibitions have their origine from the canon law , whereby if the secular judge did interpose in any thing that was ecclesiastick , the ecclesiastick judge did inhibite him to proceed : and inhibitions are mentioned , cap. causam ext. qui sil . sint legit . cap. tuam ext. de ord . cognit . and with us they were first used in the matter of teinds in the same sense ; but now the word is extended to letters , whereby the judge inhibits debitors to sell in prejudice of creditors . the publication of interdictions comes not from the canon law , but from the french , where it is necessary that they be published in paraeciâ & mercatu , as with us , vid. argent . tit . des mineurs , art. . where he likewise determines , that if a third party knew of the interdiction , either by being a witness , or by a privat intimation made to himself , that any right made to him would be null ; with us also the raising of an inhibition upon a bond of interdiction was found equivalent to a publication ; the design of the letters of publication being only to put the lieges in malâ side , november , . stewart contra hay of gourdie , where it was likewi●e found that the person interdicted might after interdiction sell his land notwithstanding thereof to a third party , if the bargain was profitable , and that without the consent of the interdicters : but in that case the bond of interdiction was many years kept up , and the inhibition thereupon was never execute till about the very time the communing begun for sale of the interdicted persons lands . observ. . that albeit all inhibitions and interdictions are to be registrated by this act within days ; yet inhibitions for teinds need not to be registrat , for an inhibitions for teinds is but in effect a summonds or warrand discharging the party to lead , but not discharging third parties to buy , and so needs not be registrated . obs. . that though by this act they are to be null if they be not registrat in the sheriffs register , yet by act par. ja. . it is sufficient to registrat them in the registers of stewards , or lords of regalitie within which they dwell ; and now they may be registrat in the general register at edinburgh , which is not here mention'd , because it was not extant the time of this act and registration in the general register at edinburgh , is allow'd by the act par. . ja , . observ. . whereas this act appoints them to be registrat within days after the publication ; it is doubted whether the day whereupon the letters were execute , or registrat , is to be numbered amongst the days . but by the late decisions it is found sufficient that either of these days be free . nota , inhibitions prescrive from the last execution , but not from the date of the registration , for actions might have been intented upon them before registration , february , . lutesoot contra glencorse . this act appointing such as are absent from the convention of burrows to be fyn'd , and that upon their acts the lords of session grant letters of horning , &c. is in observance , except in so far as these letters are ordain'd to pass at the instance of the burgh of edinburgh , for by an unprinted act of parliament , . execution is allow'd to pass at the instance of the agent of the burrows , and the letters are now still raised in his name . this act ordains the burrows to be cited to their general convention by a missive bill , but this is now done by a missive letter , in which the chief articles on which they are to treat , are exprest , to the end they may consult on them with their constituents , and these are call'd the heads of the missive , but this excludes them not from consulting on new emergents , which could not have been foreseen . that part of this act which discharges the conducting and fraughting any strangers to the isles , under the pain of tinsel of life , lands , or goods , is in desuetude . by this act lords of regality , and magistrats of burrows are appointed to set prices upon all stuffs , but that part of the act appointing such magistrats and judges as are negligent herein to be punished at justice airs , or courts , is not now observed ; and yet that would not defend such as might be pannel'd upon this account ; for the negligence of judges should not defend them , seeing that would invite them to be negligent : this act appointing the shooters with guns to be punished , is not in desuetude , but is seldome put in execution ; and it was thought that fowlers had prescrived an exemption against it , shooting being their trade , and their design is not lyable to these suspitions for which the carrying guns is discharged by this act , but yet since by a proclamation june , . fowlers are discharged to use guns , and setting dogs , it seems this favourable construction ceases , and the bearing such prohibited weapons is still sustained as the aggravation of other crimes , but is not so sustain'd as that it takes off the strength of a defence that would be otherwise relevant ; and thus nicolson being pannel'd for murther , june , . alledg'd that whilst he was strugling his gun went off , without any accession of his , which defence of his was sustain'd , though it was reply'd , that carrying of guns was unlawful in a person of his quality , and so versabatur in illicito & exillicito nunquam exculpatio . though this act prohibits the carrying nolt and sheep out of the countrey , yet it is now allowed , and they pay custome to his majesty , for though before the countrey was fully laboured and plenished with these , it was fit to keep them in the countrey . yet now the countrey would be too much burden'd with them if they were not exported . by this act whosoever renders the king's castles for money , are made lyable to repetition , and it is declared that their heirs shall be lyable , which last is the speciality for which this act was necessary , since the persons who received the money were thereby lyable to restore , and yet before this act heirs were not lyable by our law , since the crime was extinguished by death , and thus in crimine repetundarum repetitio ad haeredes extendit , l. . ff . h. t. na● turpe lucrum ab haeredibus extorqueri debet licet crimina morte extinguantur , l. . ff . de calum . that mixing of wines is justly by this act made criminal , and declared a point of dittay , and this is by carpzov , tit. fals. and other lawyers declared to be a species of falshood , and to be punishable as such . king james the sixth , parliament . by this act as by all the acts of this parliament , king james endeavoured to curb the insolence of such ministers as being dissatisfied with episcopacy , became very seditious and turbulent ; for at this time spotswood's history tells us , that there being a convention of estates holden by king james , the ministers of edinburgh , and others desired that nothing might pass concerning the church , till they were heard ; and mr. pont , protested against the proclamation of these acts , and by this act such as decline the kings council , and refuse to be judged by them in any matter whatsoever , of whatever degree or function they be , are declared guilty of treason . this act was occasioned by their frequent declining of the council , upon pretext that the council were not judges competent in prima instantia , to what was preached by ministers , and particularly by mr. andrew meldrums declinator ; and upon this act mr. james gutherie was convict of treason , for declining the king and his council at stirling in anno . and was execute therefore in anno . this opinion the presbyterians did borrow from the romi●h church , who make ecclesiastick persons only judges in the first instance , to what is spoke or written by church-men , and after they have found them guilty , then they deliver them over brachio seculari ; for understanding these exemptions that are claim'd by church-men from the civil jurisdiction of laicks ; it is fit to know that the king , deut. chap. . vers . . is commanded to write the law , and that david , solomon , joash and others did reform the priests and others serving at the altar , and judg'd their misdemeanours , in imitation of whom constantin the great ; theodosiu , and the first christian emperours did regulat the clergy , and judge crimes till arcudius and honorius , did by an express law , ordain quoties de religione agitur episcopos judicare , caeteras vero causas qua ad ordinarios cognitores vel ad usum publici juris pertinent legibus oporlet audiri , which were just marches betwixt the secular and civil powers : but justinian at the instance of menna , patriarch of constantinople , did in the thirteenth year of his reign , by his . novel . ordain that church-men should be only conveenable in civil cases before their bishops ; and as to criminal cases , that they should be only conveenable before their bishops in ecclesiastick crimes , civil crimes being cognosced by the judge as formerly . from these beginnings did arise the vast pretensions of church-men , whereby they endeavoured to decline the civil judge in all cases , as well civil as criminal , in the first instance , and to that hight that panor in . c. novit . . decret . greg. de judiciis & in c. causam . decret . greg. qui filii sint legit , asserts that both the jurisdictions spiritual and temporal belongs to the pope , which was first check'd by peter cogniers , the learn'd advocat of philip . king of france . it is declar'd by the . act par. ja. . that this act shall not prejudge the spiritual office-bearers , as to the power of excommunication , collation , or other essential church-censures . this act declaring that such as shall impugn the authority of the three estates , or shall seek or procure the innovations or diminution of their power or authority , to be treason , was occasioned by such as endeavoured at that time to exclude bishops from the parliament , of which they were , and are the third estate , and it is observable , both by the narrative and statutory part of this act , that the designing to exclude one of the three estates , was the chief design of the act , though such as impugn the power of the parliament in general , so far as relates to cases spiritual , do likewise commit treason ; and as in the former act , the controverting of the power of the council , is declared treason ; so in this act , the controverting the power of the parliament , is much more treasonable ; and yet it is controverted , whether the denying any branch of the parliaments power be treasonable , such as is the quarrelling the power or constitution of the articles ; or whether the subjects may appeal from the session to the parliament ? or if the parliament has power to reduce their sentences past in foro ? in all which , the parliaments authority may be alleadg'd not to be controverted ; but the question seems to reach only to the controverting , its fundamental powers , and if such cases as these were treasonable , the people might be discouraged to enquire even into what were otherways lawful ; and whatever may be said against such debaits , when they are meerly factious , and officiously mov'd , and prosecuted by such as have no interest ; yet such debates in parliament may be alleadged not treasonable by the act par. ja. . and the votes of parliament are likewise by this act declar'd to be free votes . as to all which , i shall only say that these and such cases , are to be detertermin'd by the respective circumstances ; and therefore it is still safer , not to approach too near those rocks , on which we may splite . this act declares the convocating all councils , conventions or assemblies , civil or ecclesiastick , to be punishable by the pains enacted against such as convocat the kings lieges , and it was occasioned by the unlawful church-assemblies , holden at that time in opposition to episcopacy , and by the act par. ch. . this act is ratified , and all such convocations declared punishable , though it be pretended by such as hold them , that they design nothing but the good of king and kingdom ; which declaration was there made to condemn the false pretences of our late rebellion . it is observable from this act , that the being once or twice drunk , is not a sufficient reason for deprivation of a minister ▪ for the act requires common drunkenness , and deprives ebriosum sed non ebrium . observ. o. that though this act say , that none residence for the space of four sabbaths , without the allowance of the ordinary shall be cause of deprivation ; yet though there be no express allowance , the none-residence will be no reason of deprivation , if the reason was sufficient , and the ordinary could not be had , as the common law decides in this case . none-residence is a cause of deprivation by the canon law , decret . greg. de praeb . cap. . and franciscus forrensis has writ a learn'd treatise , proving the necessity of residence to be juris divini . the civil law had formerly required residence from church-men , nov. . cap. . & . cap. . except where they had liberty from the emperour , and thus with us the king only may dispense with none-residence . observ. o. that plurality of benefices having cure , is a sufficient reason of deprivation , which is consonant to cap. adhaec . . de praebend ; but exception is made , where one is not able to entertain the incumbent , vid. alphons . hoieda de compatibilitate beneficiorum . the pope might dispense , so now may the king. observ. o. that by this act commissioners to be appointed by the king , are to have power of depriving ministers , which is abrogated by the first act par. ja. . though this act declares that ministers who exerce , or officiat as notars , shall be depriv'd , yet it does not expresly annul the writ ; and therefore a contract of marriage subscrived by a minister in place of a notar , was the of july . hassington con , bartilme sustained , though it was found that the ministers was thereby deprivable . this act discharging ministers to be judges , was made to exclude mr. pont , who was then lord of the session : for after the reformation , ministers came in place of the ecclesiastick lords , and though they pretend now that bishops should not sit in civil judicatures , yet they desir'd to be there . by this act the uttering of slanderous and un-true speeches , to the contempt of his majesty , his councils proceedings , and progenitors , is declar'd punishable , as leasing-making ; and leasing-making is punished with tinsel of life and goods , by the act par. ja. . vid. act par. ja. . vid. etiam tit . cod. si quis imperatori maledixerit : for such slanderous speeches , the party is sometimes only banish'd or scourg'd , as tweedie was , march . . but one fleeming was hang'd for saying that he wish'd the king would shoot to dead , may . . spo●eswood relates that this act was occasioned by pamphlets and preachings after gourie's execution . observ. o. that all the subjects are discharg'd to medle in his highnesses affairs , or in the affairs of his estate , that is to say , to make inquiry curiously into what his majesty , or his council does , for that is presum'd to be done malo animo : and in all ages such curiosity has been punish'd . thus augustus kill'd panarus vel●ti curiosum sueton. cap. . and plut. l. de curios . observes that the locrenses fin'd such curious persons , vid. langl . l. semestr . c. . who treats on these crimes learnedly . by this act , no sentence of forfalture for treason , committed against the king and his estate , can be quarrelled upon nullity of process , till the crime for which the forefalture was led be pardoned . observ. . that since this act speaks only of crimes committed against the king and his estate , it has been doubted , whether this act can be extended to treason , meerly committed against the kings person ; for by the kings estate is ordinarly mean'd his prerogative and majesty . observ. . that that part of the act which discharges advocats to plead , or consult for any person , who stands forefalted , is abrogated , act , and act par. ja. . but yet none use to plead for forefalted persons , till they get a licence from the judge before whom the tryal is to be . there was a commission granted to consider what nullities could be objected against swintons forfalture , and it was alleadg'd that the decreet was null by intrinsick nullities , in substantial points , and so the commissioners might proceed , since this act was only to be interpreted of formalities , and alleadg'd nullities , which could not be instantly prov'd , or did not appear by the decreet it self , yet they would not proceed , because the forefalture was not , nor could be purg'd , and the crime was notour . this act declaring all remissions for slaughter , fire raising , and other odious crimes to be null , is suitable to stat. dav. . cap. . and act . par. . ja. . but this act is thought temporary , as is likewise act par. ja. . and notwithstanding of these acts , his majesties remissions for such crimes has been oft sustain'd , vid. crim . pract . tit. remissions . this act is in desuetude , for his majesties guards are paid out of the excise ; and i find this act formerly establish'd by an act of council . this act is fully explained , crim . tit . murder . by this act decreets of the lords of session are discharged to be suspended without consignation , but this being in desuetude , it is by the regulations , article . appointed , that decreets in foro shall not be suspended without consignation , or by the whole lords in time of session , or by three lords in time of vacance . it may be doubted what this act means , in appointing letters of poynding , as well as horning to pass , not only for liquid sums , but where the execution consists in facto , since poynding can only be for a liquid sum. to which it may be answer'd , that the meaning of the words are , that poynding may be allow'd , though the obligation was not originally for a liquid sum , but ad factum praestandum ; but it is necessary in that case , that the effect should be thereafter liquidat by a sentence , else there could be no commensuration , and so no poynding ; and yet i cannot deny but the clause is ill exprest . this act appointing that the defender shall find caution to enter the justice-court , but in sober manner , is now in desuetude , there being no such clause either in the letters , or any such caution found , but though the justices allows some friends to enter the pannel with the defender , yet these must be very few , and disarmed . this act appointing that salmond , herring , and white fish shall be only sold at the staple here related is in desuetude , and though the town of aberdene has their own gadges of salmond conform to this act , yet the town of edinburgh pretend a right to be the sole gadgers of salmond in all scotland , by vertue of a gift from king charles the first , which gift the town of aberdene have suspended upon this act ; and this act in so far as it appoints herring and white fish to be brought to leith , and crail , is expresly abrogated by the act , par. ja. . this act is explained in the observations upon the act , par. ja. . king iames the sixth , parliament . this act was introduced to correct an ill custome which had crept in at the reformation , whereby the popish prelate finding that they were to be put out , did demit their benefices in favours of these with whom they entered in a compact , and by vertue of which compact they reserved to themselves their own liferents ; likeas , according to the c●●on law , si quis resignaverit beneficium retentis sibi fructibus pro per si ne non valet resignatio nam decet quod ipse qui altari servit de altari ; vivat , cap. cum secundum de prab . and in reason it must be concluded that the benefices must be ill served when these who resign reserve their own liferent , for he who serves will have nothing in that case , and he who serves not ought to have nothing : therefore by this act all such compacts are declared null , and it is declared , that for the future all rights to be made to prelacies shall be null , except the places be vacant by decease , forfalture , or simple dimission of him who possest the same formerly ; nor doth the king now accept of any dimission or resignation in favours of any other party , for that is a real invasion upon his royal power , by which he dispones upon all offices according to his free will. when persons are forfeited , they or their children use to abstract the evidents of their land , and therefore by the first part of this act , it is declared that the king or his donatar shall have right to all lands , &c. peaceably possessed by the forefeited person , for the space of years preceeding the forfeiture . observ. . that this priviledge holds only in cases of treason , but not where his majesty comes to have right by any other title , and it may be debated if this should hold where the forfeiture proceeds upon all the laws whereby any crime is ordained to be punished as treason , but it is not declared to be treason , such as theft in landed men , &c. for it would appear that this priviledge was only granted where the crime is declared to be treason ; but yet since these crimes are punished as treason , this act should extend even to these , for the presumptions inductive of this act , viz ▪ that they will abstract their evidents , holds even in this case , and it cannot be deny'd but these persons are forfeited as traitors . observ. . that this right introduced in favours of the king , seem to be only presumptive , so that if any party should show a back-band from the forfeited person who was years in possession , the person to whom the same was granted , or any who could instruct a better right , might pretend to exclude the donatar , even as a church-man who was decennalis & triennalis possessor , might be excluded upon a better right , or by proving that the church-man possessed only by a tolerance , but yet this presumption may be answered to be juris & de jure , and so to exclude all better rights , & sibi imputent , who having such rights , suffered the forfeited person for years to possess without any interruption , and if such competitions were allow'd , the king 's right might be eluded by an hundred contrivances ; and though this act may seem to be useless now , since the registration of writs , which hinders writs to be abstracted , yet that was repelled and last of july , . earl of southesk against the marquess of huntley ; but by the act , par. . ja. . it is declared that extracts of rights , either disponed or confirmed by his majesty shall be valid , though the principles cannot be produced , and yet if king and parliament pleased , this act might suffer some correction , because his majesty is much better secur'd now by registrations than he was at the making of this act. observ. . that since this act appoints this quinquennial possession to be proven only by the retour of an inquest , it was therefore well found that it could not be proven by exception , june , . home contra tennents of kello and home . yet though there be not a retour already made , the lords will superceed extracting that betwixt and such a time the quinquennial possession may be retoured , as was found in that case . observ. . that the possession condescended on in the act is where the forfeited persons were years in possession by labouring the same with their own goods , setting the same to tennents , or uplifting the mails and duties , so that it would seem that these kinds of possessions are requisite in this case , and that the act of parliament hath required them , because they are palpable ; and therefore civil possession per constitutum , by reservation , receiving of annualrent from principal or cautioners , not relative to the infeftment of annualrent , but to the bond or otherwayes seen not sufficient by the words of this act , observ. . that since this act is founded upon uninterrupted possession of the forfeited person , that therefore where there are interruptions ; this holds not , and thus it was found that the raising of an inhibition was a sufficient interruption , july , . earl of southesk con , morquess of huntly . by the second part of this act it is appointed that where the forfeited person was in possession of lands , tacks , or teinds , &c. the time of the forfeiture , albeit he had not been in possession years preceeding the process or sentence of the forfaulter , yet the assize must retour what the rebel did possess the very time of the process or sentence , and the king or his donatar , is to be entered thereto summarly , and cannot be removed for the space of years , that in the mean time he may search and seek after the rebels rights , for he cannot be presum'd to know quo jure the rebel possest ; and albeit it may seem both by reason and by this act , that this should only hold where ●acks or previous possession , though somewhat shorter than years , by vertue of a right , could be proven , yet the lords found that this part of the act holds even where no right could be shown , if the forfaulted person was in possession , though for never so short a time ; and it being alledged that these years in this last part of the act should be counted from the time of the forfaulter , and not from the time that the donatar enters to possession , for else he might by lying out prejudge the creditors . the lords found that if the rents were extant , he had right thereto from the date of the forfaulture , though prior to his possession , january , . home contra the tennents of kello : but that case being a competition betwixt the donatar and an appryzer from the rebel , the lords found the donatar might summarly redeem the appryzer , and enter in possession , ibidem . the reason upon which this act is founded , is , that when any person raises a multiple poynding , the party who is troubled by many who pretend right , ought to be secur'd when he pays to that person who prevails nam res judicata pro veritate habetur , and he payes authore praetore , and though minors have by the civil law and ours , a double remedy , if their tutors and curators suffer a decreet to pass against them for not compearance , viz. that he may either reduce the sentence , or pursue the curators for damnage and interest , in suffering the decreet for no compearance to go against them ; yet in this act it is declar'd , that if a major who compeats with a minor in a multiple poynding , be prefer'd to the minor , because of the minors not compearance in that case , the minor has only action against his tutors and curators , but cannot reduce the decreet of preference , but if the minor have no curators , it is declar'd he shall be restor'd as accords of the law , that is to say , he may reduce the decreet , since in this case he has no other remedy , but if the decreet of preference be quarrellable for any error in the execution , or if the party absent can show a necessary reason for his absence , then the decreet is quarrellable , either by majors or minors ; yet the lords found that payment bona fide , conform to this act , does secure the payer , not only against the principal competers , but against their assigneys , november . weir contra the earl of callender ; but it has been debated whether the party who has been prejudg'd by the decreet of multiple poynding , may be repon'd against the same , by way of suspension ; or if a reduction be necessary , and it has been found , february . watson contra sympson , that a decreet of multiple poynding , obtain'd against the party , could not be taken away without reduction at the parties instance ; nor was a suspension at the tennents instance sufficient , because the narrative of this act bears expresly that the parties used to crave to be reponed , by intenting reduction ; and that the party who obtains the decreet , is by the statutory part only oblig'd to answer in the second instance , which the lords found to be by way of reduction ; and from that decision it is very clear , that these words , the second instance in all statutes , are only interpret by the lords , to be mean'd of reduction , and not of suspension . observ. o. that the party absent will not be prejudg'd , if he have a necessary cause of his absence ; for it were unjust to punish a man for what was not in his power ; and yet by this reservation , he who gets payment is still unsecure ; but he who pays by vertue of the decreet before reduction be intented , can never be call'd in question . observ. o. that the party prefer'd in the multiple poynding , is only thereby secure , as to the bygone profits which are paid , and so in effect facit tantum fructus consumptos suos ; and if the sums be extant , unpaid to the party so prefer'd , he who had the best right before the decreet of multiple poinding , will still be prefer'd ; and it seems by the words of the act , that if the profits themselves be extant , the best right will be prefer'd ; for the words are , nor yet shall have any right to the bygone profits intrometted with . this is by the act par. ja. . declared only to be extended to such actions of multiple poinding , as were intented after this act was made . the first part of this act dispensing with the not sealing of such papers as are to be registrat , is explain'd in the act par. ja. . and whereas this act declares , that a seasine is sufficient , if subscriv'd before one notar , and a reasonable number of witnesses , that reasonable number is understood to be two , though by a vulgar error it is believed , that a seasine requires four witnesses ; and now by constant custom , four witnesses are always adhibit in seasines , and by the act par. ch. . their subscriptions are necessary . by this act it is appointed , that all kirk-lands set in feu-ferm should be confirmed by the king , else they are null by way of exception . observ. o. that though the narrative of this act bears , that all feus and long tacks set since the year . should have been confirmed ; yet the body of the act does not declare , that long tacks need to be confirm'd ; vid. manticam de ambig . convent . lib. . tit. . and balfour relates decisions bearing , that tacks for three nineteen years are esteem'd as alienations , and so should be confirm'd . observ. o. this act declares , that of old all kirk-lands should have been confirmed by king or pope ; yet the act par. ja. . seems to insinuat , that neither confirmation of pope or king was necessary , but that the kings consent was sufficient ; and that therefore the act does statute , that no right can be quarrelled for want of confirmation , where the king has consented under the privy seal ; but that the kings confirmation was necessary of old , is clear , r. m. lib. . c. . and the reason there given is , quia corum terrae sunt de eleemosyna domini regis , and being presum'd to have been given by the kings , for praying for them , they should not be appropriat to another use , without their consent . observ. o. that only feus of kirk-lands are ordain'd to be confirm'd ; and therefore the lords inclin'd to think that feus of salmond fishings set by church-men , were not null , though not confirm'd , and january . . rentoun contra feuers of coldinghame . the lords found that gifts of an office of forrestry , granted by kirkmen , needed not be confirmed , these not being properly feus of kirk-lands , ibid. this act appoints that all money and victual assign'd to the captains of the kings castles , and whereof they have been in possession for five years , shall remain with them unquestionably , and this is like the quinquennial possession given to the king in cases of forefalture . nota , that the king has a duty paid to him in exchequer , called the castle wards , so call'd , because they are paid in forwarding or keeping his castles , and he has no right to them , but constant payment , conform to the exchequer rolls ; and therefore yearly the sheriffs are charg'd with them , and they get letters of relief , and it was found in a case betwixt the sheriff of haddingtoun and sir john nisbet , january . . that the said sir john had not prescriv'd an exemption as to these castle wards , neither against the king , nor sheriff , though he had paid none for fourty years , since there were letters of relief yearly granted . o. it was alleadg'd , that his lands of dirletoun having come once in the kings hands , by forefalture , and his majesty having of new given them out , that servitude was thereby extinguish'd since res sua nemini servit , but was repell'd ; because the king did of new only dispone the said lands , as when they fall in his hands by the forefalture . king iames sixth , parliament . mr. nicol dalgleish , and some other presbyterian ministers , having reproached the king and his government , this act declaring slanderous speeches and writs , punishable by death , as sedition was made , and is more fully explain'd in the act par. ja. . and in my crim . pract . tit . injuries . observ. o. sedition is a name that receives different punishments , according to its different degrees of guilt ; and therefore where it is destructive of the kings authority immediatly and designedly , it is punishable by death , as here , though l. . c. de seditiosis ; the punishment of these , qui ejusmodi voces emiserunt , is more moderat ; and as that law well observes words spoke in civitatibus & tumultuosis clamoribus , are more punishable than the same expressions would be , if spoken in private places , or without tumult ; but yet by this act , such seditious speeches , whether spoken privately , or publickly , are punishable by death . observ. o that when his majesties advocat designs not to pursue the authors of such speeches to the death , he libels only that the pannel did speak or write what tends to reproach or slander his majesties person , or to misconstruct his proceedings , but not that they actually did so , and in that case the guilt infers only an arbitrary punishment according to the circumstances that attend the same . observ. o. that though by this act the depraving his majesties laws and acts of parliament , is declared punishable by death as sedition ; yet all misconstructing acts of parliament , is not so punishable ; and thus , though a sheriff or other judge would misinterpret a law , so as to make it infer a higher mulct or penalty than the law design'd , that could not infer sedition or death , though it be likewise punishable ; but the design of this act is , to declare the depraving and misconstructing of laws , so as thereby to reproach the king or government to be sedition , and spotswood tells us , pag. . that this act was made for punishing these ministers who had declaim'd against the acts of the former immediat parliament , as destructive to their discipline . upon this act the lord balmerino was found guilty in december . for having dispersed a petition that reflected upon the government ; in which process , it being fully debated that dolus malus should be found in such cases , where the design of defaming makes only the crime ; this was repelled , because where the words may of their own nature , move dislike of , and sedition against the government , the design needs not be proved ; for if the people be irritate , the author ought to be punished , and this law considers the effect , and not the design , and he ought to blame himself , who meddles in matters of government without his sphere . it was likewise alledged in this process , that a petition to the king himself , could not be interpret a misconstructing ; but this was also repell'd , because both by the common law and ours , it has been found , that great affronts have been put upon the government , by way of supplication . upon this act also , francis tennent was found guilty in anno . and mr. thomas ross , in anno . and the earl of argile , both in the year . and . observ. o. that in this act mention is made of raising dislike betwixt his highness , his nobility and loving subjects ; which word nobility was expresly put in by the lord hamilton and other noblemen , who then turned out captain james steuart , against whom this act was partly designed , whereas in the act par. ja. . made the year before , by the said captain james's influence , against slanderers , there is no mention made of the nobility , as is observed by mr. robert macgil , in balmerino's process . this act discharging all dilapidations of benefices , runs only in the words of the act , against such as dilapidat benefices , that are at his majesties presentation ; but yet de praxi , no benefices that are even at the presentation of laick patrons , or ecclesiastick subjects can be dilapidated . dilapidations of benefices were formerly discharg'd by the act par. ja. . but to elude that act , benefic'd persons us'd not to give down any of the bolls payable to the benefice , but to convert these bolls in money , and to make these who were lyable in payment , only lyable in very small prices , and therefore such conversions are discharg'd by this act ; but it may be alleadg'd , that where the conversion is for less than the present price , as victual now gives , it is unlawful since that conversion was unnecessary , and the benefic'd person is prejudg'd , because if no such conversion had been made , he had got the bolls presently , which could have maintained him better than the small prices , which these bolls were worth the time of the conversion ; and yet by our decisions , the price that the bolls gave the time of the conversion , are only considered , because both parties took their hazard , and the price mentioned in the conversion , is presum'd to be the full price , except it could be proven that the victual gave then greater prices for in antiquis , there can be no other probation , vid. observ . upon the said act par. ja. . by this act all leagues and bonds made amongst his majesties subjects , without his consent , are discharg'd . observ. o. that though the rubrick bears , that all such bonds and leagues are null ; yet they are not expresly annulled in the body of this act , but they are expresly annull'd by the act sess. par. ch. . observ. so . that the punishment is not here exprest , but in general , under the pain of being holden as movers of sedition , and punished with all rigour ; nor is it more special in the foresaid act ch. . which i admire ; but yet i think that such bonds and leagues are punishable by death from the words , all rigour , which may be very well extended to death , especially in subjecto capaci , as sedition is , for certainly some seditions may be punish'd with death , as we see in the first act of this parliament , and by this same act , such leagues are declar'd to be against all law and allegiance . likeas by the act par. ch. . the subjects are discharg'd to take or renew the covenant , which is a bond or league , upon their highest peril , and i wish the act had determined what was the highest peril , for generally lawyers do not extend such statutes to death . i find that the nobility and others having enter'd into bonds amongst themselves , whereupon his majesty was surpriz'd at ruthven , there are several acts of council , and particularly a proclamation , issu'd out in april . discharging all such bonds so enter'd into , and that none enter into such bonds for the future , and that gave occasion to this act , which says , that these bonds have given occasion to a great part of the troubles that have occurr'd since ; the certification in that proclamation , is under the pain of being repute favourers and partakers with the conspirators against his highness majesty . the act here related to is the act par. queen mary , but that act properly extends only to bonds of man-rent , but not to bonds of combination , as this does , so that this act should rather have been founded on the act par. ja. . there is in that proclamation , and this act , exception made of bonds enter'd into with the kings consent , which was added , because the nobility and estates at the kings desire , entered in a league and bond for preservation of religion , which is registrat in the council book , june . but this bond is subscribed by very few of every estate . by this act charges super inquirendis are discharged , but it is a mistake to think that by that act , the king or other judges cannot examine men without a formal process , for the design of that act is only to discharge the denuncing men rebels upon such charges without previous tryal , and yet if the chief officers of state , or at least four of them concur , it would seem that by that act , even such charges are yet lawful , and where the king or magistrat has previous informations of crimes latent , it were against the interest of the common-wealth , that they should not be allowed to clear these by particular interrogators . it was urg'd from this part of the act , that no man could legally be imprisoned , even by a warrand under the kings own hand , and that this was very just in it self , since as liberty is very precious , and the best part of property , it was sit to secure it so , as that none could take it away , but these who will be answerable , and the king could not in law be made answerable ; and therefore it was justly by this act appointed , that no man could be imprisoned by any letter , even under the kings own hand , except it were subscrived by the officers of state , who should be answerable ; to which it was answered by his majesties advocat , that this act did not debar the king from granting such privat warrands under his own hand , for there might be some cases which he could impart to none of his officers of state , as for instance , if all his officers were upon a plot against him , or if the crime were the being upon a plot with a forraign state , which the king were not yet in a condition to resent , though he might justly apprehend his subjects who were in accession to it ; but the design of this part of the act was only to discharge the passing ordinary letters in common course under the signet , except in this method , and it might be much rather retorted , that since only letters under the signet , are discharged to be past , except in this method ; therefore privat warrands from the king himself , are not discharged , for if the king and parliament had designed any such thing , they would have expresly discharged all warrands under the kings hand , which is not done in this act , and it is clear by the act par. ja. . that the king may give warrands out of his own mouth , to apprehend rebels , or others whom magistrats are obliged to apprehend . i find also that this act was past formerly in the privy council the of june , this year , . and there the act bears , to have been made to prevent the obtaining of unformal letters at the importunity and malice of privat persons , which clearly evinces that it was not design'd to preclude the king from securing such persons who he had reason to believe were obnoxious to the government . it is observed in the acts of sederunt , that the king june , . by his letter ordain'd several advocats to be imprison'd indicta causa . by the second part of this act writers to the signet are ordain'd to keep the old style unalter'd , for arguments brought from style are a great part of our fundamental law , and in all our decisions argumentum a stylo is still very strong , as from the wills of inhibitions , interdictions , from the forms of the chancery , &c. and yet in some cases this argument is not concluding , and thus gifts of single escheat bear all moveables present and to come , and ye● they give only right to what moveables the rebels have or shall possess within a year after rebellion ; and though by the style of gifts of wards the relief is discharged , yet that discharge will not be valid . as also , the style of inhibitions and interdictions bears a prohibition to alienat either heretage or moveables , and yet it extendeth only to heretage . stilus curiae is by justinian call'd forma & observantia , whence comes our word , form of process ; stilus & consuetudo fori vel judicii pro lege observari d●bet , l. . § . in honorar . de var. & extraord . cog . vid. v●et . de stat. sect. . c. . observ. that though by this act every writer should write his name upon the back of the signature which he writes , which doubtless was introduced , to the end that every writer might be answerable for his errors in style or otherwise ; yet if at the passing of the signature in exchequer , the writer subscribes his name , the signature will be sustain'd , which was found necessary , though it was alledg'd that this act was in desuetude , as to this point , for it was found not to be in desuetude . this act explains the act , par. ja. . and dispenses with a part of it , and that is the act to which this act relates , though it be not expresly cited . this act appointing licences to be null , except they be subscrived by the comptroller , is so far innovated , that they must now be subscrived by the thesaurer and thesaurer-depute , who are come in place of the comptroller . by this act , sheriffs , stewards , magistrats of burghs , and others , are ordain'd to apprehend notorious thieves , and if they refuse they may be pursued criminally , as partakers of their guilt ▪ or civilly for the payment of their debt , and generally all these are lyable if they refuse to apprehend any rebel for civil debts : but it may be doubted , . if any judge be oblig'd to apprehend a man at the desire of any person who cannot instruct the person whom he takes to be a rebel , by producing letters of caption , as he must do in civil cas●s , and what makes a thief a notorious thief to this effect , . if meer negligence in not apprehending these notorious thieves be sufficient to found a criminal pursuit against the refuser , as partaker , nor have i seen this sustain'd ; but if any person shall contribute actively to a thiefs escape , he is punishable as art and part , but with a lesser punishment , vid. clar. quaest. . num . . & bart· ad l. furti , ff . de furto ait spem datam ad evadendum dici auxilium ad committendum . nota , by this act all who are present and able to apprehend , are oblig'd to assist in taking thieves , or if they refuse they are to be repute partakers with them ; and though they may be punish'd with some small mulct , yet the certification here set down is in desuetude as to them , vid. tit . duels crim. observ. num . idem est facere , & non prohibere cum possis ; and as the law presumes , every man guilty who wil not concur to punish what all men hate so much , and that they would concur if they favour'd not the guilt ; so this assistance is so profitable for the common-wealth , that such as deny it are criminal , but that which is considerable in this act is , that if any clann'd man rob any peaceable subject , and if the sheriff , or steward , &c. refuse to assist him , not only is the sheriff , &c. lyable ; but further , it is declared lawful to them who have their goods stollen and rest to apprehend and intromet with the goods of the offender , or any other of the said clann , and retain them till compt and reckoning ; and though it would seem that this taking or retaining by privat authority , is not allowable till the sheriff be required to give satisfaction , and refuse ; yet in the case moor contra mefadrick , novemb . . it was found that these were separate clauses , and that a person pursued for a spuilȝie , might propone relevantly that the pursuer being a notorious robber , or holden and repute so , had rob'd him of as much , and so he might justly have seiz'd upon the like quantity of the pursuers goods , though he had not first required the sheriff to repair him ; nor was this act found to be innovat by the act , par. . ja. . which appoints a new method for goods taken away by clann'd men. here is a revocation of the king's property in general , but i find in the registers of council , that upon the of march . the king revocks all rights made by him of the abbacie of dumfermling , which revocation is made with the consent of the privy council , though ordinarly revocations are made by the consent of the parliament . by this act the nearest agnat , that is to say , the nearest of the fathers side should be curator to fools , idiots , and furious persons . observ. . that this act is extended to deaf and dumb persons , to whom likewise the nearest agnat is to be tutor , and though their tutors and curators are to be served by this act , yet if the nearest agnat omit , or is uncapable to serve , there is place for a dative ; nor doth this act exclude the father from leaving tutors in his testament to such idiots , and furious persons , as are within the years of tutory , as he may do to other children : and craig observes that if the furious person , or idiot have lands , the superior will be preferr'd to the nearest agnat ; but in this i differ from craig , for the agnat will be preferr'd to the tutory of these , as he will be to the tutory of minors , and superiors have by this act dispens'd with their feudal interest , if they had any . observ. . this act relates to the common law , by which the curators are called curatores legitimi ; but by that law , as by ours , if there be no agnats extant , the judge gives a dative , who is preferr'd to all other nearest of kin , vid. tit. ff . de curat . furios : and the agnats by that law , as by ours , are preferr'd according to the same degree as they would succeed , which is most just , since the law does prefer them to the custody of the estate , because of their hope of succession , and therefore it may be doubted where there are three brothers , whereof one is furious , if his estate be conquest , whether the elder brother will be preferr'd to be his tutor , because conquest ascends ; but i incline to think that the heir of line is still to be tutor of law. observ. . that this law appointing the nearest agnat to be tutor , holds only where there is not a legal administrator , and therefore if a wife who is an heretrix become furious , the husband and not the nearest agnat will be her tutor ; and though papinian thought the husband should not be tutor , l. . ff . de curat . furios . yet the customs of other nations agree with ours , perez . num . . h. t. vid. act . par. . jam. . observ. . though this act equiparats the tutors of fools , idiots , and furious persons , to other tutors of law , allow'd to minors , yet there seems this difference betwixt them , that tutors of law to minors must serve within year and day from the time they are in capacity to serve , but the nearest agnat may serve himself tutor of law to an idiot or furious person at any time , and when he is so serv'd he will be preferr'd to a tutor dative , though the lords will authorize that tutor dative to exerce till a tutor of law be served , the exchequer being in use in the interim to grant datives , as the lords of session are to grant curators ad lites , january , . stuart contra spreul ; and though in that case the pupil was not then declared idiot or furious by an inquest , and so there could not be a tutor of law ; yet it seems that albeit there had been a previous declarator , and so the tutor of law had been negligent , the decision had been the same , and the reason is , because this act prefers the agnats ; and yet it decides not , quid juris , if they enter not ; and what if the next agnat require the nearest agnat to enter , and he refuse quo casu , either it must be said that albeit the exchequer make him tutor dative , yet he is not properly tutor or curator , but only a curator ad lites , or else if he be once properly tutor , the next agnat cannot thereafter serve himself , nam tutorem habenti tutor non datur , vid. observ . on the act , par. i. . it is to be observ'd from this act , that laws ought not to be extended ad praeterita , but only ad futura ; and as the act sayes most reasonably , subjects cannot observe what is not yet made ; and not only so , but argumento hujus legis , it may be concluded that processes are to be decided according to the laws that were made before the process was intented , though the law be made before the decision in the process , which is very observable : a notable instance may be seen in act . par. . ja. . where the parliament makes an act upon occasion of a process depending before the session , to be a rule in like cases for the future , but leaves the case depending to be decided as they think just . vid. observ. on act p. ch. . it is by this act appointed that no signatures or other writs shall be pr●sented to his majesty but by his ordinary officers , to whose office the same properly belongs . and it appears by the registers of council , that this act was a part of the remedy of that complaint mentioned in the act of this parliament . observ. . that by officers here are mean't officers of state , for none else can present signatures , and though a general major or a president be his majesties officers , they cannot present signatures , and yet any officer of state may present promiscuously any signature , though it would seem by these words , by his majesties ordinary officers , and to whose office the same properly belongs , that every officer of state may not promiscuously offer , but that the thesaurer or thesaurer-depute can only present papers relative to the thesaury , the justice-clerk to the justice court , &c. observ. . that though any officer of state may present signatures , yet by the act sess. par. ch. . any officer who presents such papers is obliged to send the registrat docket to the secretary , to the end his majesty be so informed as that he may not grant double rights . king james the sixth , parliament . by this act the king 's lawful age is declared to be years compleat , which act was made to prevent a debate that had fallen out in france a little before that time , where the parliament of paris had declared that the french king was not major till he had compleated the last year of his minority , whereas the parliament of rouen had declared him to be of lawful age , when he had begun the last year of his minority , nam in favorabilibus annus inceptus habetur pro completo ; and though minors may revocke deeds done at any time before the last moment of their minority , and that minoritas computatur de momento in momentum ; yet it is advantagious for a king to enter upon the government of his kingdom as soon as can be . and though this be the age for reducing of deeds done by them , they have another majority in relation to the government , for we find that josias entered upon the government at years , and solomon at . cicero philip. . tells us , that the kings of macedon entered very early , and in anno . the kings of france were declared to be majors and capable of the government at . but by the commission of regency set down in the act . par. . ja. . the regency is declared to continue till . at which time the king is to take upon him the government ; but yet king james took it upon him sooner ; nor do i find any particular time limiting the king as to this point , and therefore there may be many doubts amongst us whether the king or the governour should be obeyed betwixt the kings ages of and . but before no pupil is thought fit by law for administration ; and it may be strongly urg'd that is the legal age , for why was the commissions insert , it being only a temporary right , and such use not to be insert amongst our laws . by our law minority runs in all persons to the last moment of years ; whereas by the civil law , it runs till years compleat ; and in this our king differs not from others , but because by the act par. ja. . our kings were declared to be in minority till years , therefore by the act par. q. mary . years of age compleat , was declared to be the perfect age of our queens ; and by this act it is declar'd to be the perfect and lawful age of our kings . it were to be wished , that for proving the age of all minors , there were authentick registers appointed , as in other nations , and in some parts of our own , since for want of this , true probation of their birth perisheth , and false probation is adduced . observ. . that by this act , the receipting persons of the romish religion , is not simply made criminal , except they did reset them for three days together , or at three several times , knowing that they were such , which may be urg'd in all cases of intercommuning , and resetting of rebels , and yet in other cases once and short intercommuning is sufficient to infer a crime . observ. . that by the act par. ja. . the resetting excommunicat papists , or traffecting jesuits for three nights together , or three nights at several times , is made sufficient to infer that they knew they were such per presumptionem juris & de jure , nor could the knowledge of their being such be otherways proven , and if it had been necessary to prove their knowledge , the law might have been easily eluded by industrious ignorance ; and by that act likewise , the third fault is declared punishable as ●reason ; and because the punishment was so great , it was just the presumptions whereby it was to be infer'd should be strong . though by this act only the sellers and dispersers of erroneous books , are to be punished at our soveraign lords will , and such books to be burnt ; yet by our practise , the bringers home of crucifixes , popish-beads , &c. are to be used in the same way ; and though there is only warrand here given to a minister and magistrats of burgh to seize , and burn such books ; yet magistrats use frequently to seize without a minister , and sheriffs and other officers do likewise seize , but since burning seems to be an extraordinary power , and so not to be assum'd without a special statute . i think that no officers , save magistrats of burghs , with the concourse of a minister can burn· the reason why ministers benefices under prelacies , are declared to be free of the first fruits , and fifth penny of their benefices , is because in time of popery , the first years fruits of every benefice were due to the pope , and are call'd by the canonists annata , against which several councils have made large , but ineffectual representations , and the fifth penny was payable to the king , and though this act discharges only the exaction of these in benefices under prelacies , yet now even prelacies are free from these exactions in scotland , though in england the first fruits belong still to the king. though the priests were free from subsidies amongst the aegyptians , genes . . vers . . and that l. placet c. de sacr. eccles. nihil extraordinarium abhinc superinductumve ab ecclesia slagitetur ; yet this was only as to tiths , and things meerly spiritual , but the lands of the church were lyable to impositions , laid on for the common defence of the countrey , and therefore the canonists , ad c. . de immun . eccles. give as a rule , that in bonis ecclesiasticis ut cleri●●s in patrimonialibus ut laicos tractandos , and such was this fifth penny here mentioned ; and with us ministers stipends , but not bishops lands , are now ordinarly freed from impositions . observ. . that though such as invade ministers for the causes therein exprimed , viz. for seeking their stipend ; or because the minister inflicted church-censures upon them , or any other forged quarrel , are to be punished with all rigour ; yet if they invade them upon any account , that is not ecclesiastick or premeditat , as in an accidental scufle , they are only in these cases punishable as for wrongs done to other subjects . observ. . since the act appoints that they may be punished with all rigour , and the tinsel of their moveables ; it is clear that such invaders may be punish'd likewise personally , besides the confiscation of their moveables ; yet the words , with all rigour , should not be extended to death ; but by the act sess. par. ch. . the assaulting the lives of ministers , or the robbing of their houses , is declar'd punishable by death ; and by the act sess. of the said par. the parochioners are made lyable for the outrages done to ministers , if the actors cannot be got . observ. . from these words , that they may be punished at the instance of the minister , or any other that will pursue ; this crime is made so far crimen publicum , that it may be pursu'd per quemlibet ex populo , though he be not otherways interested . observ. . that this act being only against invaders of ministers , it is extended to invaders of bishops , and all such as have power to administer the sacraments , act par. char. . in which act there are many other extensions of this law. the popish clergy had right to lands that were mortifi'd to , or bought by them , and to teinds which belonged to them as church-men ; the teinds were call'd the spirituality of their benefices , because they belonged to them as church-men , and the rest was all comprehended under the designation of the temporality of their benefices , and upon the abrogation of popery , the king did begin to erect some of the temporality of their benefices in lordships , which he dispon'd to several noblemen , who were most active in the reformation ; or to these whom he resolv'd to oblige by their interest , to be active in it , and these were called ●ords of erection ; but thereafter the parliament resolving to fix a constant rent to our kings , thereby to preclude the necessity of taxes , and to ingage future kings not to return to popery , they annext the temporality of all the church-lands , and benefices to the crown by this act. observ. . the reason whereupon this act is founded , is , that the former kings having mortifi'd a great part of their revenue to church-men , and having thereby impoverish'd themselves and their people , it was therefore just , that the ends for which these mortifications were made , being declar'd unlawful , the benefices should return ; by this reason such mortifications as were made by privat families , should have returned to them ; whereas here all returns to the king : but in law these religious houses being demolish'd , all ought to have fallen in to the king ; for qua nullius sunt ea sunt domini regis ; and these were such , for they belonged not to the old proprietars , since they were once dispon'd ; nor to these houses , since they were extinguished , and that being found a false religion , what belong'd to it , did by the law fall under confiscation . observ. . though all benefices belonging to arch-bishops or bishops , are by this act annexed , yet they are restored by the act par. ja. . and though all benefices belonging to chapters are annexed , yet these are restored by the act par. ja. . observ. . from these words in the clause of annexation , viz. all and sundry common-lands bruiked by chapters of cathedral kirks , or whereof they have been in possession as commonty ; that possession in church-lands , is very often repute a sufficient right , and to be loco tituli , for understanding whereof , it is fit to know , that both before and after the reformation , a churh-man being in possession by the space of seven years , though without a title , has the benefit of a possessory judgement , so that his right cannot be quarrelled without reduction ; nor needs he produce a title , as laicks are oblig'd to do in possessory judgements , july . . earl of hume contra the laird of rislaw . and if he be thirteen years in possession , that possession is to him in place of a title , for by a rule of the chancery ( as we believe ) docennalis & triennalis possessio habetur protitulo ; though i find no such rule in the roman chancery , but yet these thirteen years induce only a presumptive title , which does not exclude the true proprietar , if he can instruct that the benefic'd person possessed either by a redeemable right , and produce the reversion , as was found in the case of francis kinloch , contra the bishop of dumblane , july . or by a precarious right , as was found in the case of a minister , who had casten peits for thirteen years by tolerance from the heretor , and though there be no difficulty where the right mortifi'd does expresly bear , that it is redeemable or precarious ; yet in absolute rights , there is greater doubt whether after thirteen years they can be qualifi'd by correspective obligations . the reason of this priviledge given to church men , is , that they being imploy'd in divine matters , are ignorant and careless of their right , especially since their rights are not to descend to their own heirs . it is fit here to take notice that by a vulgar error triennalis possessio was thought to give the benefit of a possessory judgement , march , . marshal contra the laird of drumkilbo , and decennalis of a petitory , and thus did they interpret the former rule . at the reformation also the popish clergy did either send their foundations to rome , or did by collusion with the laicks interested , or in hatred of the reformed clergy , destroy their rights ; and therefore by an act of sederunt december . it is declared that ten years possession before the reformation , or after the reformation , should be a sufficient right either to church-men , or to the king 's coming in their place , by vertue of this act , and conform thereto the lords decided july . laird of kerss against reid . observ. . that because the romish clergy were put from their benefices , therefore they are by this act freed from any warrandice they had given for church lands dispon'd by them ; and by the act of the same parliament , what is here statuted as to the warrandice of lands , is there extended to tacks , pensions , and assignations , and so these two acts are not absolutely co-incident , and the last unnecessary , as they would seem to be , and though this was done in majorem cautelam , yet by the common law they would not have been liable in warrandice , since no man is liable in warrandice where the eviction proceeded upon a supervenient statute , for no man can warrand against a supervenient law. observ. . that notwithstanding that the church-lands are annexed , yet there is a dissolution in the same act , warranding his majesty to feu any of the saids church-lands during his own time . observ. . that though by this act all prior dispositions made of church-lands by his majesty to lords of erection are excepted from the annexation , yet the superiority of all the erections both before and after that act , are annexed to the crown , by the act par. ch. . observ. . that the spirituality of benefices , viz. their right to the teinds is expresly declared not to be annexed , but to remain with church-men as formerly ; for though by the act par. ja. . it be said that the teinds of dumfermi●●g are annexed to the crown after the form of the act of annexation , . by which all the teinds of the remanent kirk-lands and prelacies of the kingdome are annexed ; yet that clause is only insert by mistake in my judgement , for that is not the design of the act. where stock and teind are promiscuously feued , it is declared by this act that his majesty remains superior both as to stock and teind , the church-men having only right to the tenth penny of the feu-duty , the other nine belonging to his majesty for the temporality being only annex'd to the crown , and the teinds being reserv'd to the church , it was very just that where a duty was payable out of church-lands , cum decimis inclusis , the king should only have right to a ninth part of that duty , and the tenth should belong to the church-man or titular , in contemplation of the teinds ; but still decimae inclusae are so fully exempted from all ecclesiastick payments , that though there be not sufficiency of teinds in the paroch , yet decimae inclusae are never burden'd with the payment of ministers stipends , though ministers stipends be the constant burden of all teinds ; and for the same reason it was found january . that no valuation could be led of land feued , cum decimis inclusis , and not confirmed before this act , and that laicks might prescrive a right to them , but not to other teinds , which shews that decimae inclusae are never lookt upon as teinds . for understanding the origine and nature of decimae inclusae with us , it is fit to know that by the canon law the parson or incumbent and the paroch church were founded in the right of all the greater tithes , called decimae praediales , and that it was not lawful for any man to abstract their teinds from it , cap. de decimis . quest. . and albeit the popes did pretend that since the bishops had the management of the teinds , they as universal bishops might by their supereminent transcendent right appropriat them to the use of monastries , monks being the best of the poor , and teinds being naturally burden'd with the maintainance of the poor ; yet our king's who in all the tract of our parliaments own'd their own regalia , and the episcopal order against the invasions of the popes , did by the act , par. . ja. . declare it a point of dittay , that is to say , criminal for any man , to take a right of teinds from any , save the parson , vicar , or their farmers , so far they acknowledg'd the parochial churches to be founded in their right to the predial teinds . notwithstanding whereof , the popes to get the monks to depend immediatly upon them , did grant to those monks , exemptions from payment of tiths , for they as well as others paid to the parson or incumbent , till pope paschal the d granted those exemptions , but these exemptions did thereafter so far diminish the provision of the parson ( very many lands , being either mortifi'd to them , or bought in by them ) that theodosius and other emperours were forc'd to make laws against exorbitant mortifications ; and pope adrian was forc'd to limit the exemptions to four religious orders , cistertians , hospitalers , templars , and knights of st. john ; still allowing all of them exemptions for their novalia or lands , first cultivated by themselves ; but pope innocent the third , in the lateran council , thereafter ordain'd , that even these four orders should pay tiths for what lands they should acquire after that time ; which i , the rather observe , because it has been decided by our session , july . , thomas crawford contra prestoun grange ; that lords of erection succeeding in place of the cistertian monks , should be free from tiths , as the monks were without adverting whether these lands for which exemption was pleaded , were bestow'd on their monastries , after the year . and it seems that this exemption should not be allow'd to these monastries , since they were not allow'd to the temple-lands with us , and that such priviledges are due to neither , because this was a personal priviledge given to the monks , as the poor , and so should not descend to the lords of erection . the monks being thus masters of many tiths , feu'd out their lands and tiths promiscuously , for the encouragement of the labourers , who have alwayes thought it a loss and a slavery to wait till their tiths be drawn . laicks also enjoy'd tiths , and alienated them as their own heretage , for many ages together , it being generally believ'd , as selden contends , that the tiths were not due to church-men , they having right only to a maintainance , jure divino ; though others ascrive these laical infeudations to a corruption begun by charles martel king of france , who to gratifie and pay such as were to assist him in the holy war , dispon'd to them the tiths consentientibus episcopis , who knew that if the saracens prevail'd , religion would be destroy'd , and he promising to restore them ; but after this time it is undenyable that de facto , teinds were dispon'd to , and by laicks , till the lateran council . in which the canon was made , prohibemus ne laici decimas cum animarum suarum periculo detinentes in alios laicos possint aliquo modo transferre . si quis vero perceperit & ecclesiae non reddiderit christiana sepultura privetur ; but yet before that time , laical infeudations were discharg'd , per concilium turon : . though we in this nation consider only the discharge , in the lateran council . it remains clear from these informations , that our decimae inclusae , are in effect the same with the decimae infeudatae in the canon law , and these are call'd decimae inclusae , where the stock and teinds were never separated , but were feu'd joyntly before the lateran council ; but yet it seems that all decimae infeudatae , are not esteem'd inclusae with us ; for in a case betwixt monimusk and pitfoddels , teinds were found not to have the priviledge of decimae inclusae , though transmitted by infestments , and call'd decimae inclusae , because there was separat a reddendo , paid for the teind and stock , and so it could be known to be different from the stock , albeit it was contended that decimae inclusae and infeudatae , were pares termini , and a different reddendo did not evince that the teinds had ever been separated from the stock , but only that there was a different duty , as is in lands of the same holding oftimes , and it may in general seem strange , why we should add , since the lateran council , for that council did find that laicks before that time were incapable of any right to teinds ; and therefore all feus of teinds , whether before the lateran council or after , should be null , and this error it seems has been occasion'd by our concluding , that because laicks were declar'd uncapable of them by that act , therefore they were capable of them before it ; and yet with us a laick cannot prescrive teinds , because he is not capable of them ; and balsour tells us a decision wherein not only alienations of teinds , but even tacks of teinds for three nineteen years , were accounted alienations , and so null , for else discharging alienations might have been eluded by setting long tacks : but now teinds pass by infestments , as the stocks does , since the surrender , and his majesties decreet thereupon , wherein every man may buy his own teinds , and so may set as long tacks of them as he pleases , or feu them out cum decimis inclusis . but it may be alledg'd this tenth part payable to the ecclesiastick person for teinds , may be made liable to ministers stipends , since this tenth part must be constructed as teinds , and so should be lyable to all the burdens of teinds ; but to this it is answer'd , that these decimae inclusae are consider'd as a part of the stock , and so no more liable to ministers stipends than the stock is ; this division of the feu-duty doth not alter the nature of the decimae inclusae , but is only insert to regulate the way of payment of the feu-duty , even as if after a feu granted of stock and teind promiscuously for a feu-duty , the church-man should dispone nine parts of the feu-duty , and reserve only the tenth to himself , that tenth part could not be liable to ministers stipends . . since this act by the death of the titular both temporality and spirituality came in his majesties hands , and so were dispon'd to the lords of erection , and return'd to them without this distinction of nine or tenth parts . though by this act teinds are declared the spirituality of benefices , yet they may be sold , and are appointed now to be sold by the parliament . and the heretors are to be infest in them as in their other lands , which seems inconsistent with their being the spirituality of benefices , and the patrimony of the church ; but it may be answer'd , that they are even in that case burden'd with payment of ministers stipends till they be competently provided . observ. . by this act all lands and others mortified to colledges , are excepted from the annexation , and the reason is , because kirk-lands remain still to be such , albeit they be mortifi'd to colledges , feb. . tock contra the parochiners of achtergoven , and therefore it was necessary to except them . maisons dieu , or hospitals are also excepted , and maisons dieu are hospitals dedicated to the honour of god , it is a french word signifying the house of god ; the canon law calls them domus dei , and makes them hospitals . observ. . pensions likewise out of church-benefices are excepted , if they be authorized either by decreets , or possession , but possession of a part is repute possession of the whole ; and by the act par. ja. . this act is ratified , and it is declared that all pensions out of the spirituality or temporality , neither clad with decreet nor possession in the prelats lifetime who dispon'd the same before this act of annnexation , shall be null , but if they be clad with possession in manner foresaid , they are valid against singular successors , though pensions granted by laicks are not valid , albeit they be clad with possession prior to the singular successors right , as was found the of december , . clappertoun con . the lady ednem ; but by the act par. ja. . pensions granted by church-men should contain the particular names of tennents and duties , vid. observ . on the act of this parl. observ. . by this act it is declared that the bailie or steward of the regality shall have the same power he had before to repledge from the sheriff , or justice-general , in case he hath prevented the justice-general by apprehending or citing the person before he be apprehended or cited by the justices , but if the justices have prevented , as said is , then the bailie of the regality , or steward , shall not have power to repledge , but he may sit with the justice-general if he pleases , so that in effect by this act there is this difference betwixt the ecclesiastick and laick regalities , that there is a right of repledging competent to the laick regalities , whereas ecclesiastick regalities have not this priviledge except they prevent the justices , but otherwise the bailie of regality may only sit with them ; the reason of which difference is , that the regalities having been only granted in favours of the religious houses , which were supprest , the regalities became extinguish'd with them , and his majesty having ex gratia only reserved their offices to the lords of erection , he thought that they were abundantly gratified by this new concession , without allowing them the power to exclude his own justices , in case of prevention ; and this was also a favour to the lieges in not troubling them with two courts , nor were the lords of regality much prejudg'd , for by this same act they retain the whole right to the escheats and fines , even of these who are condemned by the justices . observ. . that the parliament has been so careful of the vassals and feuers of kirk-lands , that because the king who is declared superior by this act of all these lands was a more powerful opposite : therefore by a clause in this act it is provided that the king shall not quarrel their rights to these kirk-lands , save by improbation , or by a reduction only for a diminution of the old penny-mail , de liquido ad liquidum , that is to say , that though such rights may be quarrelled as granted with diminution of the rental , or by unlawful conversion , yet no diminution shall reduce their feus , except where the diminution is of old rentals , because about the time of the reformation feus were granted for high feu-duties , and these being renewed again for less than were once payed , the feu might have been question'd , because though the feu-duty was less than was once payed , yet it was not below the old rental , de liquido in liquidum , as if five merks were taken when ten was of old payed , without consideration of conversions , so that though ten merks were taken in the feu quarrelled in place of ten bolls , that would be no relevant reason of reduction , and since by the act of parliament , . erections are annex't to the crown : the lords found that the lords of erection cannot now pursue reductions or improbations of their vassals kirk-lands , and that his majesties advocat could not insist in any such actions , except he had an express warrand from the king , though it would appear that this act is a sufficient warrand to pursue improbations or reductions for diminution in the terms of this act , of june , . laird of prestoun contra nathaniel ebred . observ. . that lands belonging to the benefices of laick patronages , are excepted also from this annexation , by which are meant only such laick patronages , as were lawfully establisht before the reformation , and not such as were dispon'd by the king to laicks , and to which he had right , as coming in place of the pope , who was universal patron in dubio , before the reformation , for these are still accounted ecclesiastick patronages , since they were so originally , and so ought not to have been excepted from this act , but whether all the other patronages , which belonged formerly to monasteries , were annexed to the crown by this act , was fully debated , november . in the case of steuart contra the laird of watertoun ; and that they were annexed , was urg'd , because by the first words of this act , the abbacies , &c. and all profits , emoluments , whatsoever belonging to them were annexed , and there being nothing that the king and parliament was more concerned in , than to have the patronages depend upon the crown , thereby to prevent the influence that schismatick privat patrons might have ; it was most reasonable to think , that when all things belonging to monasteries , were annex'd , these should have been annex'd . likeas , sir thomas hope among other rights crav'd to be reduc'd , crav'd likewise that all the rights made to the lords of erection of the patronages belonging formerly to monasteries , should be reduc'd as contrary to this act , upon which reduction the lords of erection did submit their rights to these patronages , and in the kings determimination upon that submission , his majesty determined that the lords of erection should have only right to the converted prices of their own feu mails , and feu ferms of their superiorities , &c. it was likewise there contended , that the saids patronages were likewise annexed by the and acts of the first parliament ch. . to which it was answered , that patronages were never annexed as parts and pendicles , but where it was design'd they should be annexed , they were still annexed per expressum , as in the annexation of the abbacy of dumfermling , act par. ja. . and it were absurd to think , that since the foresaid general clause did annex things of the meanest consequence , such as service of tennents , &c. that it would have omitted things of so great consequence , as were the patronages of many monasteries ; nor did any of the leiges who had right to such ecclesiastick patronages from the king , crave ever a dissolution of them in parliament , which certainly they would have done , if they had looked upon them as annex'd , nor were they annexed by the and acts par. ch. . because these acts do not mention patronages per expressum , nor can they be comprehended under the general word , pertinents , exprest in these acts , for the reasons foresaids , and to evidence that his majesty had determined nothing as to the patronages belonging to the lords of erection , his majesty does in the parliament act ch. . express these words , likeas , also the the remanent points of our said commission anent the patronage of kirks , &c. are not yet begun to be treated ; therefore , &c. this debate came not to a decision . what the condition of our teinds is since this act , shal be treated fully in my treatise of teinds , as also whether the obligation of paying teinds proceeds from the moral , judicial or common law is not agreed to , but the most ordinary opinion is , that they are due to church men , before any positive law , and the quota . of tenths proceeds from positive law , and d. thomas part . . quaest. . makes the tenth to be due , because as all digits under ten , are imperfect , and do tend to ten as their perfection ; so man being naturally lost , we pay our tiths to these ministers by whom our perfection comes ; and thus some school-men conclude , that tiths flow from the moral law , in so far as they are a necessary maintainance for ministers , from the judicial law , in so far as concerns the number of ten , and cerimonial in so far as concerns the foresaid typicals , nor can it be deny'd that abraham paid teinds ( before any positive law ( to melchisedeck , though the learned selden interprets this place only to be the tenths of what was taken by the war , and that from josephus and from heb. cap. . v. . and the greek word there us'd , does properly signifie spoils , call'd by sulpitius severus decimam praedae but yet i see not why that alleadg'd custom among the jews , of giving the tithes of their spoils , could have proceeded from any other ground , than that which was common to all tithes , nor can i believe selden , who asserts that tithes were not paid in the primitive church , till the days of st. augustin , and s. ambrose , for if we do not controvert the truth of all authority , we will find the payment of tithes much older . teinds were likewise accounted spirituality by the canonists , vid. rebuff . quaest. . num . . how these teinds came to belong to monastries , may be doubted , since naturally the curats of the respective parochs , are founded in jure communi quoad the right to their predial teinds , so that they need not prove their right thereto , and this was very just , because they having the cure of souls ought likewise to have had that which was given as an encouragement of that cure ; and though to this the ordinary answer be , that the pope who had only right to alienat such teinds , did use to give them to monastries , nam licet ille jus divinum tollere non potest tamen modificare potest , yet i conceive that our kings , and even our laicks , with the consent of our kings , did think they could bestow the teinds belonging to these kirks , whereof they were patrons upon religious houses , whereof i have seen very many instances in our old charters , one whereof , i shall set down for an example , alexander dei gratia rex scotorum , &c. sciant tam posteri quam praesentes nos concessisse , &c. deo & ecclesiae sanctae mariae de dryburgh ecclesiam de lanarch ( now lanerk ) cum terris , & decimis & omnibus rebus juste ad illam pertinentibus . item , how the other church-lands became first to belong to monastries , i shall god-willing clear in an express treatise concerning kirk-lands and teinds . this act is explain'd in the former revocations , only here the fees , and pensions granted to the officers of the crown are excepted from this revocation , and the officers of the crown are declar'd to be the thesaurer , secretary , the collector ( which office is since joyn'd to the thesaurer ) the justice , that is to say , the justice-general , justice-clerk , advocat , master of requests , clerk of register , and the director of the chancellary , the director of the rols is but his deput : the order wherein they are set down , makes the advocat to preceed the register , and though the justice clerk be named before the advocat , yet that is only because in all this enumeration , these of one court , are still set together , and therefore the justice , justice clerk , and their deputs , are still set together ; but it would appear that the justice-general should by this preceed both the register and advocat ; but by ch. . his revocation , which is the act of his first parliament , the register and advocat are rank'd before the justice and justice-clerk , & posteriora derogant prioribus . nota , the privy-seal and thesaurer-deput , are not here marked , though they be both officers of the crown ; the precedency amongst the present officers of state , was by act of council , february . . thus determined , lord chancellor , lord thesaurer , lord privy-seal , lord secretary , lord register , lord advocat , lord justice-clerk , lord thesaurer-deput , by act of parliament , . the president of session was then , and not till then ordain'd to preceed the register , advocat and thesaurer-deput , and the register and advocat then were ordain'd to preceed the thesaurer-deput . by this act of revocation , all the exceptions in any former acts are likewise revocked ; but under this part of the revocation , do not fall the exceptions in the former act of annexation , for king james was then major , and though he had not been major , yet these exceptions being made by a publick law , it may be said that publick laws cannot be taken away by a revocation ; for the revocation is but a privat act of the kings , whereby his majesty secures himself against privat deeds done by himself in his minority , but not against what he consented to as publick laws . by the last clause of this act it is provided , that his majesty shall not be prejudged by suffering any party to possess any lands , or others fallen under the revocation , but that his majesty may put his hand thereto at any time , but any obstacle , by the first part of which clause it is not meant that prescription shall not be valid against the king , but only that the possessors shall not have the benefit of a possessory judgement ; and by the last clause it appears that our king 's having revock'd , they needed not intent reductions ex capite minoritatis , but may brevi manu intromet with what falls under revocation , even as they may do in their annex't property ; for this same clause is like to that contain'd in the annexation , ja. . par. . cap. . and which is repeated in all the other acts of annexation : see observ. upon that act ; but it is more reasonable to think that the king needs no reduction , because he must prove lesion in case of reductions ex capite minoritatis ; but the king needs prove nothing in the case of annexation , yet our king is still in use to pursue reductions , and not summarly to dispossess these who have right . whilst our parliaments grew very factious in the time of q. mary , the popish and protestant party contending who should prevail in parliament , the popish clergy , who were very numerous in parliament , since all the bishops and miter'd abbots did sit there as church-men , each of them who had lands and heretage craved two votes , one as church-men , and another as barons : to prevent which for the future , this act was made , discharging any of the three estates to take upon him the office of all the three estates , or any two of them , but the following words are not so clear , viz. that every man shall only occupy the place of that self same estate wherein he lives , and of which he takes the style , which was designed to keep barons who could not get themselves chosen to represent their shires from being chosen as burgesses of parliament , though they were provosts , or magistrats , as they then ordinarily were ; and by it also a burgess who is ordinarily so design'd , may be debarr'd from being chosen as a baron of a shire : this act was long in desuetude , but of late by acts of burrows all burgesses are discharged from electing gentlemen , to represent them in parliament , under the pains specified in these acts ; for they found that gentlemen did not adhere to , nor understand the true interest of burghs ; and the king found that none desired to be so elected , except such as had private designs , albeit upon the other hand ▪ it is represented that this is the way for burgesses to have their interest maintain'd by lawyers or able states-men , either of which they may choose ; and the people of england , who are very jealous of their priviledges do choose such , by which likewayes their parliament is so considerable , and their laws are made by so judicious lawyers . but by an act of the par. ch. . it is determin'd that only actual trading merchants can represent burghs-royal in parliament ; and that act was founded upon an express decision of the session . the unlaws for absents from parliaments here set down are pounds for every earl , pounds for every lord , pounds for every prelat , and merks for every burgh , but there is no penalty appointed for barons , and i think that they are comprehended under the word lords , for the lords and barons make but one state of parliament , and laird is but a corruption of the word lord ; of old pounds only was the unlaw or amerciament , as is to be seen by the preface of all the acts of parliament , which bears ordinarly these words , alii vero quasi per contumaciam se absentaverunt quorum nomina patent in rotulis sectarum quorum quisque adjudicabitur in amerciamento decem librarum . this act appointing every state of parliament to have three apparels , conform to a pattern to be made , was not made that every man might have three several habits , but to the end each distinct estate might have a special habit , and yet barons nor burgesses have as yet no distinct habit for parliament . for understanding this act appointing the number of the lords of articles in every state to be equal , and that the most shall not exceed ten , nor the least be fewer nor six , it is fit to know that by the act , sess. par. . ch. . the lords of the articles are ordained to be elected and constitute in manner following , viz. the clergy choose of the nobility , the nobility of the clergy , and these sixteen so elected , or such of them as are present do choose barons , and burgesses , to whom are added the officers of estate , and the chancellor presides : and the articles being so constitute , do prepare laws , acts , and overtures , and orders all things remitted to them by the parliament . by the act , par. . ja. . no advocat could plead in reductions of forfaulters without a licence , which is abrogated by this act ; but because this act gave leave only to persons accused before the parliament to have advocats without licence , therefore by the act of this parliament advocats are ordained to plead in all criminal cases , and they do so upon supplications . this craving a licence was founded upon act , par. ja. · vid. crim . observ . tit . advocats . this act is fully cleared , crim . observ . tit. jurisdiction of the parliament . in this act the king promises to do nothing that may prejudge the liberty of voting and reasoning , but yet if any person should offer to argue what is down-right treason , this act would not defend him , for by voting and reasoning jointly may be inferred that that reasoning is only allowed , which relates to a stated case , and to be put to the vote , and nothing that is treasonable will be allowed to be stated in order to a vote . this act discharging all contention for priority of place , relates only to parliament , and the disturbance thereof , but by a decreet of ranking , in anno . his majesty having ranked the nobility , has commanded them to observe the precedency there assigned in all places , and that under the pain of being punishable as contemners of his authority . though by this act all actions of molestations are ordained to be pursued before inferiour judges , as being naturally but actions for cognoscing of marches , where the controversie being facti , can best be understood upon the place , yet now such actions are ordinarlie pursued before the lords , because there is a declarator joyned with the molestation , for the pursuer libels , that though such lands be his property , yet he is molested in the possession thereof ; and the reason of this invasion is , because declarators of property , as all other actions concerning double rights , can only be pursued before the lords of session . the form prescribed to molestations by this act , is , that the lords shall direct letters to the inferiour judges upon dayes warning , who shall continue their courts from dayes to dayes , and these inferiour judges having discust the points of law , they shall choose an assize , the most part whereof shall have ploughs of land , or merks of yearly rent in the same or neighbouring parochs , if there be mutual pursuits , the judge shall discuss both together , and choose an assize out of the assizes cited by either party equally , and the odd-man to be choos'd by cavil ; if the judge ordinar be suspect , the lords shall grant commission by their own act , or by a commission under the testimony of the great seal to unsuspect judges . this form is still almost in observance , only the lords in dubious cases grant advocations to themselves where the judge is suspect , and after the cause is debated , the lords ordain the ground to be visited by some of their own number , or grant commissions to others , if the lands ly very remote , but these commissions under the testimony of the great seal are absolutely in desuetude . if the most part of the inquest be not clear , the lords find that in that case the cause should be advocat to them as the supream court , and they will judge according to the probation already taken , or will grant warrand to cite new witnesses , as they did july , . walstoun contra cheislie . though this act appoints the inquest to be chosen of landed-men , having ploughs , or merks , and that in or near the paroch where the contraverted land lies , yet the verdict will be sustained though they have not so much and though they dwell not in that paroch , albeit there be such in the paroch . this was formerly appointed §· . c. . lib. . r. m. where such cognitions are appointed to be per fideles homines de viceneto . and skeen there observes , that perambulations differ from molestations , in that perambulations are petitory judgements , and concern property , but molestations are only possessory judgements , though both tend to the tryal of marches . nota , that by the last clause of this act , the members of the colledge of justice are exeemed from tryal before inferiour courts , which was formerly granted in removings , p. . c. . queen m. and is here extended to all causes according to old accustomed use ; and though it was alleadg'd that thir last words were restrictive , and so the members of the colledge of justice could not advocat their causes from inferiour courts , except in such cases only as they could prove old use and wont ; yet these words are found exegetick , and to be equivalent , as if the act had said , because of old accustomed use , granting them that priviledge , and this was very reasonable , for since they are oblig'd to attend the lords , and their clients , the citing them before inferiour courts had been inconsistent with both . the action of molestation is the same with us , that finium regundorum was by the civil law , and what can stop perambulations in our law , are set down , statut. david . cap. . where amongst other things , it is observ'd , that a minor is not oblig'd to defend in perambulations , and this is the only place in our written law , where that old maxime is to be found , minor non tenetur placitare de hareditate paternâ ; and yet it seems that a molestation being declar'd by this act to be judicium possessorium , a minor should be oblig'd to defend in this , as he is in all other possessory judgements ; but the reason of this exception in molestations , seems to be , because ordinarly molestations resolve in declarators of property , or are joyn'd with them . by this act the defender is indefinitly to pay the expence of the obtainer of the decreet , at the modification of the judge , vid. act par. . ja. . but though this act be general , yet statutum quod disponit simpliciter ut victus victori in expensas sit condemnandus , hunc sensum admittit , si non habuerit justam litigandi causam , hic quippe sensus juri communi est conformis & rationi conveniens , voet. de statut. sect. . cap. . . by the first part of this act the lords of session are made judges to the interpretation of the act of oblivion ; whereas by the act par. q. m. several particular persons were named for that effect . there is an unprinted act , saying , that because several of the lords were dead , and that because many legal actions arose upon the indemnity , therefore this act was necessary . by the second part of this act , nine lords of session are sufficient to be a quorum , and which is now observ'd , though by the act par. ja. . ten lords with the chancellor or president at the first institution , were necessary to make a quorum . this act is fully explain'd in the act par. queen m. except in so far as concerns the obligation laid by this act upon the notars , to bring their prothecals to the lords of session , and which are to be kept by the clerk register and his deputs ; these prothecals are the book , wherein notars set down the breviats of what instruments they take , & protocollum est memorialis tabellionis scriptura qua in codice aliquo gestus acti substantia breviter adnotatur vid. gloss . in novel . . de tabel . the reason why they are ordain'd to be brought to the register , is , that false papers may be hereby try'd , and lost papers may be made up , for if an instrument be lost , the person in whose favours it was at first made , may raise an action before the lords , craving that it may be made up out of the notars prothecal , and this being nobilis officii , cannot be done before inferiour courts , vid. act par. ja. . upon the of february . the lord register contra sir william primerose it was found that the registers deput , called the clerk for the notars was deprivable , for not calling in the prothecals of deceassed notars , by the space of five years , to which the lords found him actually oblig'd , though it was alleadg'd , that by these acts he was only oblig'd to receive the prothecals , when they were brought in , but not to call for them , nor was it possible for him to know when notars dy'd , and therefore by this act , sheriffs , &c. are ordain'd to acquaint him of the death of notars , within their jurisdictions , for it was urg'd that the obligation to bring in the prothecals , being committed to this clerk , and he being only intrusted with it , the act would be elusory , if he were not oblig'd to do diligence , since none else could do it , and he might easily inform himself , at least once a year . it was also debated , that by this act the clerk to the notars was oblig'd to understand sufficiently the office of notary , though it was answer'd that he was no further oblig'd than to draw a bill for their admission , and the clerks of the session are not oblig'd to understand the civil law , which they are oblig'd to minut . messengers being grown too numerous , therefore by this act they are restricted to . comprehending the seventeen heraulds , macers and pursevants in that number ; which number is here divided amongst the shires , but the number is now increas'd contrary to this act , and to the great loss of the people . the lyon is constituted by this act sole judge to the faults committed by messengers , and to their cautioners , whom they find for their good behaviour at their entry ; which power is ratifi'd by the act par. ja. . and the lyon with his brethren heraulds are declar'd judges to all the malversations of messengers in their offices by the act sess. par. ch. . by which act , though the malversation of the messenger be punishable by the lyon ; yet he has not power thereby to determine upon the damnages done to privat parties by messengers , and to determine against the messenger or his cautioner , for the sums for which the messenger should have us'd execution , albeit the lyon has privat ratifications from the parliament , with this priviledge , vide june . . heriot contra corbet . by this act all supersederies are discharg'd , for protections against execution of the law were so call'd then . this act is renew'd , act par. ja. . by which the granter is declared lyable for the debt , and by the act par. ch. . these acts are ratifi'd ; and because the last act related only to the session , therefore the privy council , session , commissioners of justiciary , and exchequer , are declar'd lyable , if they grant protections , except to such as are cited to answer before them ; and so the act protects not pursuers , for they are not summon'd ; and if pursuers were protected , any man might raise a summons and thereby grant himself a protection ; but yet if the interest of the common-wealth require that a crime be prosecuted ; i think they may after inquiry , secure the pursuer during the dependence ; for though his majesties advocat may pursue without an informer , yet an informer helps much . albeit that act discharges the granting protections , and makes the granters lyable ; yet the contemners of the protection are punish'd ; and a writer to the signet was suspended in november . for causing apprehend a person , notwithstanding of the lords protection ; albeit it was there alleadg'd , that though protections might be granted by the lords , upon depending processes , yet these protections could not extend to secure them against delivering of papers , which are in their own power ; and though a protection granted by the king for debt , does not secure against things that are in the receivers own power , as exhibition of papers , &c. yet if either the king or the lords grant expresly protections against all cases whatsoever , then it will secure even against such exhibitions , until the same be expresly re-called , though it seems that by that act , judicatures have only power to grant protections to such as are cited before them , during the time wherein they may come and return to obey the judicature , in cases wherein their personal presence is necessary for the administration of justice , not exceeding a month in all . it is also clear , that even the defender may be apprehended , if he get not a protection , for this act does not protect , but is only a warrand for granting one . and there is lately an act appointing protections that pass under the kings hand , to pass the great seal , per saltum . the council to prevent the granting of protections , whereby the privat interest of the subjects was so much destroy'd , and the execution of law eluded , did by an act in january . and signed by all of them , declare that whoever voted to any such protections , should be lyable to the debt ; to elide which , they thereafter changing the name of protections , granted licences to persons to stay in the countrey free from all execution , and therefore the king by his letter in july . did discharge the council to grant any licences or protections , except conform to these his laws ; and the act par ch. . ordains all such licences , protections , &c. to be sign'd , and the signers to be lyable , &c. it may be likewise doubted , whether the commission of the kirk can grant protections , since there is only allowance by this act granted to the privy council , session , exchequer and justice court , but since the act par. ch. declares that the acts , decreets and ordinances of that commission shall have the strength of the acts and decreets of parliament , they are really a commission of parliament : and therefore as the parliament can grant protections , so can they , especially since without this they cannot exerce well the jurisdiction intrusted to them by the parliament , and it seems inherent in all courts , that they should be able to protect all whom they cite ; and it is clear by this act , that the supream courts of scotland have power before this act of parliament to grant protections : for this act reserves only their former power , but grants them no new power . these protections are thought the same with the induciae moratoriae , granted by the civil law l. . c. de precibus imperator . &c. which are not valid by that law , nisi idonea fideijussio super debiti solutione praebeatur . but i think these to be rather suspensions , and that cautioners in suspensions with us arose from this . this act anent teinding of corns is explain'd fully in act par. ja. . by this act he who accuses another for treason , and proves not , commits treason . observ. this is only in case of malicious accusation ; for the act says , that malicious accusers , &c. and therefore if the pursuer had probable grounds for his accusation , he seems not to incur the hazard of this act. observ. . that though the act says , whoever accuses ; yet the kings advocat runs no such hazard , for he accuses ratione officii ; but to prevent this , he gets alwayes in treason a warrand from the king or council , upon reading the depositions of the witnesses , taken by way of precognition , or else he has an informer , who finds caution to insist , sub poena talionis . observ. . that the pursuer is only lyable , if the party calumniat be call'd , accus'd , and acquit , therefore the accuser repenting and not insisting , it seems that he will not be lyable in this pain ; but for not insisting , he will be only lyable in the sum under which he has found caution , and possibly in poenam arbitrariam , if malice appear ; and yet it may be urg'd that he should be lyable to the pain of treason , since not insisting was the pursuers fault , and no man ought to have advantage by his own fault , nam qui dolo desiit p●ssidere pro possessore habetur . dub●●atur , if this act extends to such as pursue only statutory treason , and sure it does not , if they pursue not the same as treason , though upon the event it may prove so . it may also be doubted if a witness who has deponed against a man in a previous tryal , as guilty of treason , and thereafter depons he knows nothing of it , commits treason : for this wrongs the party as much as an accusation ; yet if this deposition was not emitted ultroneously , but on a citation , it cannot be call'd an accusation , nor punisht as such ; but it seems punishable by death , by l . in prin . ff . ad l. cor. de fals . landed men convict of theft , reiff , or reset , commit treason . it may be doubted if an appearand heir be punishable in that case as a landed man ; or if a person once a landed man , but denuded , be lyable . though landed men may be thus punished as traitors , yet they are ordinarly pursu'd for single theft , and the kings advocat does restrict his libel to ordinary theft . but because it may be punishable as treason , therefore the lords advocate thefts against landed men , though the libel bear only single theft . the murthering any person who is under the trust , power , or assurance of the slayer , commits treason . assurance is extended to such as we have invited to our house ▪ or such as we are under trysting and capitulation with . this act is likewayes extended to husbands killing wives , bairns , servants , & e contra . this act determining what is usury , is explained in my criminal pract. tit. usury , this act declares that such as exact other customs from the people than what is warranted by express law , or express warrand , or immemorial possession , shall be punished as oppressors . it is thought that possession for years is equivalent to immemorial possession , and warrands such exactions , by prescriptions . ships transporting victual are confiscated , and the masters and clerks imprisonable during pleasure . this is now abrogated , for it is lawful to transport corn even without a warrand from the exchequer , except where the same is discharged by special proclamation because of dearth . this act discharging the eating of flesh in lentron is in desuetude , tho till of late eating of flesh was discharged without a previous warrand under the hand of the clerks of the privy council . this act appointing the slayers of deer , cunnings , & . to be punished as thieves , is explained crim . pract . tit. theft , num . . because the people were oft times mistaken in executing their brieves legally , through the difference arising from several jurisdictions , therefore some places are here appointed to prevent mistake , and a general is subjoined , appointing brieves to be executed either at the head burghs of shires , or stewartries , or where brieves were most usually served . from which last words it may be observed , that executions are sufficient , though they be not at the real head burghs , if they be at the place where they used to be executed ; and thus executions at dunce were sustained for the shire of berwick , though greenlaw was really the head burgh by the erection ; and executions of a warning were sustained though not at the right paroch church within which the lands lay , since it was executed at the place at which warnings used to be executed , january , . the earl of argile contra george campbel ; so far the presumption of habite and repute prevails even over truth . by this act the granter of a woodset is declared not to be prejudged by his negligence , though he suffer an ecclesiastick quietly to intrude , and to continue long , yea even years in the possession of laick patronages to which he has right , because during the none-redemption the woodsetter did not look upon himself as heretor . the reason of this act has certainly been because church-men possessing per decennalen ▪ & triennalem possess●onem prescrived a right , and the act seems to imply , that because the granter of the woodset was not valens agere whilst the woodset stood , therefore his negligence should not prejudge him ; but i conceive that church-men now prescriving a right by years peaceable possession will exclude all the rights of laick heretors , as well when the lands ( to which the laick patronage is annext ) are woodset as other wayes . for understanding ecclesiastical pensions , it is fit to know , that of old when the present incumbent was sickly , the synods allow'd him to resign his benefice , reserving to himself a pension or portion out of it , as is clear by balsamon ad synodum ephesinam ; but thereafter the pope having reserv'd to himself the power of burdening benefices with penesions , men did by simony impetrat from the see of rome immoderat and causless pensions , though it was pretended that there could regularly no pension be granted but for one of three reasons : . the favour of the resigner of a benefice , that he might after the resignation live suitably to the character he once bore . . that when two benefices were excamb'd , the greater benefice might be burden'd with a pension in favours of the lesser . . when there was any debate concerning the benefice , it was lawful to burden the same with a pension . but notwithstanding of this , pensions increased so far as to be complain'd of as a harvest without sowing ; and our law did take very much pains to lessen pensions , and by the act of k. ja. . his first parliament , in the black acts which is not now re-printed , the king reserved to himself the cognition of pensions obtain'd at rome . and by the act of the par. k. ja. . it is appointed that no pension be purchased out of any benefice without consent of the possessor , which was very just in it self , and was made to exclude the popes power , who pretended that he could arbitrarily impose any pension he pleas'd , as is clear by gigas de pensionibus ecclesiasticis , quaest. . by this act it is declar'd that the principal gift of pension being improven , all confirmations and decreets following thereon shall fall in consequence . by the act of this parliament it is likewise appointed that pensions shall not be prejudg'd by the act of annexation , they being lawfully authoriz'd by decreets , or possession , and therefore by the act , par. . ja. . it is ordain'd that all pensions not authorized by decreet , or possession in the lifetime of the prelat , alledg'd disponer thereof , shall be null ; and by the canon law pensions imposed upon benefices of cure , extinguuntur morte gravantis ; but the reason given by this act is , because such pensions not so confirmed in the granters lifetime , are null of the law , and may be presum'd to be false . another reason that may be given is , because the incumbent having no power over the benefice but during his life , it were unjust that any burden granted by him should last longer than his life , and if it lasted longer it would prejudge very much the care of souls , because the burden of a pension would discourage the intrant ; and the reason why it is presum'd to be forg'd is because it is very probable that if it had been a true pension it had been own'd during the lifetime of the granter . by the act , par. . ja. . all pensions and dispositions out of the temporalities of vacant benefices since the act of annexation , are declar'd to be null , which shews that pensions were never consider'd as solid and unquarrellable rights . observ. . though this act appoints the exchequer to sit till the last of august , yet it sits sometimes no longer than the last of july ; and it being doubted whether the king could notwithstanding of this act of parliament ordain the exchequer compts to begin upon the first of march ; it was resolv'd that could not be done , because by this act of parliament the not compting till the first of july , was introduced in favours of the subjects , who are by this act liable to no compt till july , and so the king could not anticipat the obligation , by making them compt in march , this being rather matter of property than of government . observ. . that denunciations at the mercat cross of edinburgh against such as do not compt in exchequer , they being thereto lyable , are equivalent , as if the denunciation had been at the head burgh of the shire ; but yet i conceive escheats would not fall upon such denunciations , because no escheats fall by denunciations upon general letters ; but it is alleadg'd that escheats may now fall upon such denunciattons by the act ses. par. . ch. . where this act is renew'd , and such denunciations are there declared to be equivalent to charges and denunciations personally , and at their dwelling house , and head burgh of the shire , and that as to all intents and purposes ; and by that act such letters and executions may be registrated either in the general register of hornings , or in the thesaurers register , albeit generally all letters of horning ought to be registrated in the particular register of the shire , act par. . ja. . or in the general register . this act is explained in the act par. ja. . execution by this act may pass at the kings instance against high. landers and borderers , ubi non patet tutus accessus , upon citation at the head burgh of the next quiet shire . though this act was only in favours of executions at the king's instance , which seems to be a priviledge ob bonum publicum , yet by a late custome dispensations are granted upon common bills by the lords , to cite at any mans instance , though it was not proven that there was not tutus accessus , and therefore the lords did by act of sederunt discharge the granting of such priviledges upon common bills , and ordained that something should be adduced for proving that there was not tutus accessus , and that such warrands should only be granted in praesentia , june , , mepherson against mccleud . per clem . . de judic . & clem . . de sor . compet . citatio potest fieri per edictum ubi locus non est securus , vid. marant . de jud . part . . num . . where he observes well that these edictal citations being so prejudicial , cannot be granted by inferiour judges ; and thus if any person be to be cited , as out of the countrey , at the peer of leith , this cannot be done before inferiour courts , without letters of supplement from the lords . by this act the comptroller is lyable for the chamberlains whom himself nominats , but he is only lyable for diligence against heretable chamberlains , because he names them not . the thesaurer is lyable in the same manner as the comptroller was , though the thesaurer be not here nam'd , because the thesaurer is now in place of the comptroller . but it may be doubted if a person who is repute solvent , and was really so , were nominated , a chamberlain proving afterwards insolvent , will make the thesaurer lyable . by this act rentals set by the king , not bearing heirs , are not extended to heirs , but resolve in naked liferents , though regularly qui sibi providet & haeredibus providisse videtur . nota , that our law has thought that this needed an act of parliament ; and therefore in other cases , where there is no statute it would seem that rights granted to a man , should regularly extend to his heirs , arg . hujus legis . observ. . though this act mention only rentals set by the king , yet the rentals set by subjects , are not extended to heirs , except heirs be therein-mentioned ; and though a rental mention heirs indefinitly , yet it will only extend to the first heir , and will neither be accounted null for want of an ish , nor be extended to all heirs , for then it would be equivalent to an heretable right . this act discharges the disponing of the kings casualties in great , as the casualties of a whole countrey , which is most reasonable ; and therefore all gifts of regalities may be quarrell'd as null , because in them all the escheats are dispon'd ; and though this act discharges the giving away of casualties arising from any one crime , yet this objection was repelled against the gift of usury in which were given away all the profits arising to the king by usury . all pecunial pains are ordain'd to be taken up according to the rate the money gave when the fine was impos'd , or else the fine is to be augmented , according to the augmentation of the money ; and this act was reasonable , because it was not just that delinquents should get advantage by not payment ; and it was necessary , because without this act , fines , as all other debts , might be pay'd according to the current money , at the time the same fell due . the pain of negligent sheriff-clerks is tinsel of their moveables , and the principal sheriffs are to pay pounds for them , besides the damnages of parties . observ. . that in the time of this act , sheriffs had the nomination of their own clerks ; but now since the sheriff-clerks are nominated by , and depend upon the secretary , it is not just that the sheriff should be fineable for the fault of the clerk. observ. . that though by this act the sheriff-clerk is oblig'd to send an inventar of all the registrat hornings yearly to the thesaurer , yet this is in desuetude . this act is in desuetude as to the price to be taken by messengers , but they still find caution to the lyon at their admission , de fideli administratione . relief is a duty due by the vassal to the superiour at his entry , for relieving his fee out of the superiours hands . by this act it is appointed , that when this casualty arises to the king , it may not be compounded for , but that all that is due be taken ; and the true avail is a years retour-duty in ward-lands , and the double of the feu-duty in feu-lands . hope tells us , that though a gift of non-entry contain the relief , yet the donatar will not have right thereto , because such is the custom of exchequer , as he says ; but i think that the true reason is , because this act discharges this casualty to be gifted . when ere the vassal takes out a precept from the exchequer , for infesting himself , he is lyable for the relief ; and the sheriff may be charg'd therefore , conform to the responde book : or the party may be summarly charg'd for it by this act , and the ground may be also poynded for it , as de●itum fundi , when a party gets a precept , the servants of the chancery write down respondebit vicecomes de , &c ▪ or respondebit any judge to whom the precept is direct , and that is call'd the responde here mention'd , by which responde-book , the sheriffs and their deputes are charg'd yearly in exchequer . by this act the sheriff did count for all escheats yearly , for then he might have intrometted summarly , and had letters of intro●ission ; but now he is not countable , nor oblig'd to intromet , but the escheats are gifted to donatars . by this act all commissions for judging crimes , are ordain'd to pass the quarter-seal : but now commissions are granted by the council without any seal ; and though this act discharges justly the granting commissions for judging slaughter , ordaining that crime to be judg'd only by the justices ; yet now the council uses to grant commissions even for judging slaughter , murder , witchcraft , and all such crimes . but though the council may grant such commissions for judging these crimes , when they fall in under general commissions , that are granted by the council ; yet i see not how they can grant commissions contrary to this act , for judging slaughter in special . observ. . that all commissions of the justiciary should be under the quarter-seal , to the end as this act of parliament observes , there may be a responde made thereupon ; and yet the council now uses to grant commissions , which have no other warrand but a paper subscriv'd by themselves , and not by way of signature , as is here ordain'd , and the great fault that is committed in granting these commissions , is that the process is never ordain'd to be returned to the justice-clerk , to the end that both it may be known , whether the processes be legal , and that it may be known what is due to the king , for which the responde mentioned in this act was to be made , vid. observ . on act par. ja. . observ. . from these words of the act , that no commission be granted to proceed in slaughter , but that the justice-general and his deputs proceed thereupon . it uses to be urged that a council of war cannot be a sufficient warrand for souldiers to judge murders , and other crimes committed by any of their number against countrey-men , these not being military crimes , but being crimes that should be tryed by our fundamental law in the justice-court , where the people have a double security , both by learn'd judges , and an inquest of neighbours , and a kings advocat to be careful of the probation ; and it may as well be pretended that they may judge their own souldiers in civil cases ; and that they may judge a countrey man when he kills a souldier , vid. crim. pract . tit. jurisdiction of justices over souldiers ; and the council ordain'd burr a drummer to be delivered up to the justice court for killing a woman , though he had suffered two councils of war , november . . but to clear this , the king by his letter to the council , has declar'd that souldiers are only to be be try'd for military crimes by a counsel of war , and that for ordinary crimes they shall be judg'd by the justices , &c. as parties may pursue crimes without concourse of the kings advocat ; so by this act the king may pursue without an informer , ad vindictam publicam . this act ordains that no rests be allow'd to the thesaurer exceeding pounds a year , but that he shall compt for what is above this sum , so that he may do diligence therefore as accords , but this is not observ'd . the second part of this act ordains that the king be not prejudg'd by general ratifications in parliament ; for though ratifications cannot prejudge third parties ; yet they might have prejudg'd the king who past them , if his majesties interest had not been secur'd by this act. though this act discharges all continuation of justice-courts , and ordains the justices to proceed , notwithstanding of such precepts ; yet both king and council use to command the justices to continue their diets , though this act was objected in the process for william halyburton's murder , june . but it is necessary that in such cases the king should be inform'd by the justices , what is to be said on both sides , before they continue such diets in process , at the instance of privat parties , for the king and the party having different interests , and it being declar'd by act of parliament , that the party may pursue without the king. it seems very reasonable that the parties process should not be stopt upon surreptitious warrands , without acquainting the king. i find in the council register , july that because his majesty had been troubled by the importunity of such as desir'd not to be try'd before the justice-airs , but at particular diets , whereby they eschewed ordinarly all punishment ; that therefore his majesty does in council , statute and ordain ( this is oftimes the stile in acts of council , as well as in acts of parliament ) that the justices shall proceed , without respect to such warrands ; and it seems that that act of council has given occasion to this act of parliament ; and generally many acts of parliament have been at first acts of council , which shews likewise what power the king has in his council of this nation . this act appointing that sheriffs should yearly give in the names of their deputs and clerks to the lords of session , and find caution in the books of council , is in desuetude , as to both the parts , for they neither find caution , nor give in the names of their deputs ; but de jure , i think letters of horning may be direct upon this act for both effects , it being most reasonable that the lords of session should know whether the deputs be able , and this caution would keep them in awe and secure the people , if they do injustice . the caution requir'd by this act is burgesses , indwellers in edinburgh caution burgeoise , as the french call the best caution . by this act the form of holding justice-airs is set down , but it is to be found more fully in the iter justiciarii , and upon the word justice-air , de verb. signif . and so needs not be repeated ; but there are some things fit to be observ'd , because innovated . observ. . that commissions of justiciary are to be under the testimonial of the great-seal by this act , but now they are always under the great-seal , when granted by the king ; but seldom or never under the quarter-seal , which is call'd the testimonial of the great-seat , and when they are granted by the council , they are only sign'd by a quorum , but under no seal . observ. . that albeit the steuartries or bailliries be here appointed to come to the head burrows of the shire , where dittay is to be taken up ; yet it has been found , that the council may ordain them to come to other places for the publick conveniency , when the diets are so short that the justice clerk cannot stay at every shire , and thus the constabulary of hadingtoun was ordain'd to give up dittay at edinburgh . obser● . . that albeit by the old form , pannels were to be cited to justice-airs upon fourty dayes iter. just. num . . yet now they use to cite upon fifteen or more dayes , and then as now , they are not cited peremptorly to one day , as in ordinary justice-courts , but to any one of the days in which the court is to sit in that place , to which they are cited , and all the pannels are called every day at that place , and if they compear at any one of the dayes , they are not declar'd fugitives . at the first day of justice-airs , all who are call'd must find caution to appear at all the diets of the justice-airs , which some complain of . albeit by the form of our old bri●ve , and the constant practique , only millers , brewers , smiths , and officers of courts were cited to give up dittay upon oath , because it was presum'd that the best intelligence is to be had from such publick persons ; yet the cou●cil did lately ordain that noblemen and gentlemen should likewise be oblig'd to give up dittay , because the crime being treason , and art and part thereof ; it was presum'd that they should understand the same better than mean people ; and for detecting of so great a crime , persons of all qualities should concur ; and the former custom was not exclusive of calling persons of quality . likeas by the . act par. ja. . the king is to call the lords and head-men of the parts of his realm , and to take dittay of them ( id est by them ) of notour trespassers . by this act hoghers or slayers of horse , destroyers of plough-graith , growing corns , &c. are punish'd as thieves to the death , vid. crim . pract . tit. theft . observ. . that this act proves theft to be capital by our law , though we have no express law for making theft capital generally . observ. . that it may well be doubted , whether cutting of corn , &c. in landed-men is treason , since it would seem to be so ; for by this act it is declar'd punishable as theft , and theft in landed-men is by the act of this parliament declar'd to be treason ; but yet i conceive that these statutory thefts are not punishable as treason , since that were but fictio fictionis & duae fictiones non cadunt in idem subjectum . likeas the punishment is dedetermin'd here to be the punishment of simple theft , viz. death , whereas if the law had design'd forfalture , it would have nam'd forfalture here , as in the former act. it has been doubted upon this act , whether the cutting of corns sowen by a strang●● ▪ who had no right , was a crime in the heretor , who may pretend that satum cedit solo ; and it is thought that if the heretor suffer'd a stranger to possess for any considerable time , he could not have cut them down summarly , no more than he could have removed that stranger summarly from his possession , though unjust . these acts are explain'd crim . pract . tit. deforcement , vid. act par. ja. . and statut. will. cap. . v. . it appears by this act , that letters of lawburrows were of old granted by several clerks ; and by this all caution for law-burrows is ordain'd to be found to the justice-clerk , which was indeed most reasonable , because bodily harm is there dreaded , and the preventing of that should belong to the justice-court ; but now the council , session , and criminal court have the power of causing parties find caution for lawburrows , but the act in so far as it discharges lawburrows to be granted against complices in the general , is yet in observance , and very justly , for it was not fit to leave it arbitrary to the parties to charge any they pleased . though this act appoints all courts to be fenc'd at eleven of of the clock in the forenoon , yet it does not irritat and annul all courts holden at any other hour , and courts are ordinarly held at other hours , but it may be doubted , whether a party cited to a peremptory diet , and staying till twelve of the clock , and taking instruments thereon , could be unlawed in the afternoon , for absence ; but if the court once sit , parties are obliged to attend . though this act appoints the expences of parties accus'd and acquitted to be modifi'd by the justice-clerk and his deputs , yet they are now only modifiable in full court by the justices : but it is doubted , whether the justices can modifie expences , where the defenders are absent , since the only certification against absents , is that they shall be denunc'd rebels ; but yet the modifying expences , seems to be the necessary result of all processes , and that inest officio judicis ; it is also doubted , whether the justices can ex intervallo , modifie expences , none having been sought the time that the letters were brought back , and the party declar'd fugitive , and the justices are in use to do both , but the case has not been yet fully debated . by this act the roll of assizers was to be given by the party accuser , or a notar in his name ; but now by the third article of the regulations , for the justice-court , the assizers are nam'd , and the list subscriv'd by the justices , for it was thought too severe that the kings advocat , or the party accuser should have the naming of the assizers . by this act customers passing customable goods for gratitude , are to be try'd criminally , and their moveables to be escheated in case they be convicted . observ. . that the kings servants are only to be punish'd in case they transgress for money , so that negligence is not punishable except it be gross ; but yet if customers should wittingly and willingly pass goods for friends or relations , i think it would be punishable by a fine : and since the stealing of customs is theft , this connivance in strict law seems a theft-bute , or accession to theft . observ. . though this act declares this accession punishable in a justice-air , yet the exchequer and council do also punish the same by arbitrary punishments . this act is explain'd fully crim . pract . tit . assizes ; but it is fit to add that his majesty having written a letter in anno . desiring the justices to examine witnesses in treason , when the council requir'd them , at any time before insisting in the process , to the end his majesties advocat might know how to libel , and to prevent the absolving of rebels , who were truly guilty by the mistake of citing the wrong witnesses ; it was alleadg'd that the desire of that letter was contrary to this act , ordaining all probation to be receiv'd only in presence of the pannel . . that this would ingage witnesses to adhere to the depositions that might be elicited from them by the too great zeal of his majesties servants , or the influence of others . to which it was answer'd , that as to the first , the depositions to be taken in that previous tryal , were not to be made use of to the assize , which was all that was discharg'd by this statute . as to the second , it was not to be imagin'd that the judges , to whom only this was to be intrusted , would prejudge any pannel , or be corrupted by any influence ; and before the witnesses depon'd these depositions should be destroy'd , so that the witnesses could be under no apprehensions upon that account , and the people were in a better condition by this letter than formerly , for it was securer to trust previous examinations to the judges than to the kings advocat who did alwayes examine alone formerly , and this would prevent unjust trouble , when there were no witnesses who could depone against the persons accus'd through error or malice . this act is also explain'd in the title assizes : but it is fit to add that blair and others being convict of error for assoilȝying some traitors wrongously , and their escheats being gifted , they rais'd a reduction of the gift , as founded upon a verdict that was null by this act , in so far as the kings advocat had spoke with the assyzers after they were inclos'd , which reason was repell'd , because the justices had declar'd that the advocat had only spoke to the assyzers in their presence , when the assyzers were desiring to be solv'd of some doubts which was ordinary and allowable , december . . it may be also doubted whether such verdicts can be reduceable , for though the act declare that the assizers may assoilȝe , if any speak to them , yet if they and the justices proceed , it seems not quarrellable , or at least before the session ; for i remember that the justices having declar'd a bond of glenkindies forefaulted , for not producing some witnesses against himself ; the lords declar'd that the justice-court being a supream court , their acts and sentences were not quarrellable before the session , queritur , if both these may not be quarrell'd before the parliament ; and i think they can not , except the decreets of the session can . this and the following acts to the end of this parliament were made for quieting the borders and highlands , as to which the same courses are to be taken , though now the borders are governed by a commission of both kingdoms , so they are not put to find caution as they were by these acts ; but the acts here set down are generally observ'd as to the highlands still , except in so far as i shall here observe upon the respective acts. observ. . though this act appoints that the first day of every moneth shall be appointed for hearing complaints concerning the borders and highlands , yet that is in desuetude as to both . observ. . that , that part of the act ordaining a special register to be made for borders and highlands , is in observance , quoad the highlands by a late act of his majesties privy council . by this act all the lands-lords contain'd in this roll , are ordain'd to find caution , which roll is subjoin'd to the acts of this parliament , but that roll is now very much alter'd , for many others are now ordain'd to find caution , who are not therein specifi'd ; but are now in the proclamations of council , march . . &c. because the heretors mention'd in the acts of parliament , are often extinct , and the lands for which they were to be bound , are dispon'd to others . and whereas by these acts , these landlords and chiefs of clans were ordain'd to produce their delinquents before the justice or his deputs , they are now to produce them before the council , or else to pay the debt , which are great arguments to prove that in matters of government de facto we consider more the reason , than the letter of the law. though this and the act of this parliament , which is coincident with this may seem severe , because the innocent is bound for the guilty , yet necessity and publick interest has introduc'd these laws by the same reason that in england the paroch is lyable for the robberies committed therein betwixt sun and sun , and thus these who have power of jurisdiction from the emperour , are lyable , vias publicas a latronibus purgare gail ▪ observ . . lib. . vid. etiam , l. . l. congruit , ult . ff . de officio praesidis . it has been doubted whether the council could in other cases not warranted by express acts of parliament oblige the subjects to give bond to live peaceably conform to law , and particulary that their tennents should not keep conventicles , but should go to church , and pay pound sterling for every conventicle kept upon their ground , or should present their delinquents ; and it was alleadg'd that the council cannot , because regularly one man is not lyable for another mans crime , nor can this inversion of property and natural liberty be introduced by a lesse power than a parliament , nor had acts of parliament in this case been necessary , if the king and council could have done the same by their own authority ; but yet since the king has by express act of parliament the same power here that any prince or potentat has in any other kingdoms , and that government belongs to him as property does to us , nor can the peace be secured otherwayes than by allowing him to take all courses for securing the peace , and preventing disorders , that therefore this joyned with the practice of the council is a sufficient warrand for exacting such bonds , the practice of our king and council being the best interpreter of the prerogative , especially where the things for which band is to be taken , are not contrary to express law ; and it is implyed in the nature of alledgiance that land-lords should entertain none but such as will live regularly , and if they transgressed , the master could not in common law thereafter recept them without being lyable , as we see in spuilȝies ; or if the king pleased he might denounce the transgressors rebels , and so might put the master in mala fide , and though there be no such particular laws warranding the taking of such bonds , yet it will appear by many instances in this book , that laws are extended de casu in casum , and thus this power seems inherent in the crown ; likeas the matter of property is sufficiently secured by the alternative foresaid , of either presenting or paying the damnage , which alternative seems to be founded upon the same principle of justice , with actiones noxales mentioned in the civil law , domino damnato permittitur aut litis aestimationem sufferre aut ipsum servum noxae dedere , vid. tit. . lib. . institut . i find many instances in the registers of council , wherein the subjects are charg'd to secure the peace , under the pain of treason , as in the case of the lord yester . bond 's given by cautioners for broken men , do oblige the heirs and successors of the cautioners , though they be not mentioned in the band. observ. . in law he who obligeth himself to pay a sum , obligeth his heirs ; for as in law qui sibi providet & haeredibus providet sic qui se obligat & haeredes obligat , and therefore a man having bound himself and his heirs male , it was found that the creditor was not thereby excluded from pursuing the heirs female , or any other heirs , but that he was only bound to discuss first the heirs who were specially named in the obligation , february , . blair contra anderson ; but yet obligations for performing a deed , such as to present a thief , are of their own nature personal , and therefore this act was necessary . the taking of surety from chief of clanns doth not loose the obligation taken from land-lords , & e contra , and the reason why this act seemed necessary , was , because this seemed to be an innovation , and it seemed not just that both the chiefs and land-lords should be lyable , since they could not both have absolute command over the person to be presented ; but yet this act was most suitable to law , since novatio non praesumitur nisi ubi hoc expresse actum est , l. ult . cod. de nov. and the tennents in the high-lands are influenced both by chiefs and land-lords ; but to make this law more just , the council gives action of a relief against the lands-lord , if the lands-lord harbour , or to the lands-lord against the chief , if the chief recept him . by this act if goods be taken away by any clann'd man and recept in the country of their chief , for the space of hours to his knowledge , the chief shall be lyable in solidum for all the goods taken away , though there were but very few of his men present , as was found in a case pursued by francis irwing against glenurchie before the council ; all such chiefs being lyable in solidum , and not pro ratâ only for the wrongs committed by their clanns . by this act no magistrat may keep a thief , or malefactor in arms with him , albeit he pretend he is his prisoner , but he must de●ain him in a closs house , both because squalor carceris is a part of the punishment due to malefactors , and because if this were allow'd , magistrats might by collusion suffer malefactors to enjoy their liberty . is explained crim. pr. tit . theft . this act ordaining masters to present their tennents upon the kings closs valentines ( or orders in little papers like valentines ) is observ'd in the whole registers of council . these two acts discharging the borderers of scotland to marry with the borderers of england , or to labour their lands , are abrogated by the union . by this act the land-lord doing diligence by obtaining decreet of removing , using horning , and doing all other things that was in his power after the fact comes to his knowledge , is no further lyable . nota , by this act the land-lord must be put in mala fide by intimation of his tennents crime . . dubitatur whether this priviledge should not likewise extend to chiefs of clanns , since they have less interest in the delinquents then the land-lords . by the act of this parliament , such as committed slaughter , mutilation , or other hurt upon thieves , are not lyable : but by this act an indemnity is likewise granted to such as raise fire against them , that being there forgot . this act is explained in the observations upon the act of this same parliament . by this act the burrows pay the sixth part of the impositions of scotland , which is yet in observance , and because of this burden they have the only priviledge of trading , and therefore they justly pretended that their priviledge of trading could not be communicable to the burghs of barony and regality , who bore no part in this burden . nota , that though by this act the taxation of the burrows is not to be altered , that is only mean't of the part which is to be born by the burrows in general ; for notwithstanding of this act the convention of burrows do alter the taxation of any particular burgh according as the number of burghs increaseth , or according as any particular burgh grows unable ; and they divide this sixth part amongst themselves according to the total of pound scots , which is the imaginary standard or assis , and each burgh pay accordingly , some being valu'd at ss . some at ss . &c. and if any burgh resign its priviledges , they must also resign in favours of the burghs royal their common good , after which resignation , and not otherwayes , their proportion is divided amongst the rest ; for it were unjust that they should retain their common good which was to pay the proportion of publick burden , and yet be free from the burden it self . by this act a burgh selling any part of their freedom without consent of his highness and his three estates , loses their whole freedome . observ. . that the reason given by this act is , because they as vassals cannot sell without consent of the king their superiour , and so this seems to be a kind of recognition , and it would have appeared reasonable that therefore the king's consent might have seem'd sufficient , because he is only superior ; but the reason why by this act the parliaments consent is declared necessary , seems to be , because burghs-royal bears a part of the taxation of the kingdom , and so alienating any part of their freedom , they seem to lessen the subject-matter out of which the taxation is payed . obseev . . it may be doubted whether a posterior confirmation or ratification by the parliament will be a sufficient consent . obsrrv. . that magistrats and council cannot alienat the priviledges of a burgh , and therefore alienations made by them would not infer this forfaulture or recognition , and therefore all the inhabitants behoved to be cited by touck of drum to such alienations as they were per sonitum campanae , in the civil law , tit . cod. de venditione bon. civit. by this act the parliament having referred to the king to determine who should represent the barons ( which shews what great deference our predecessors had to their king ) his majesty determines that none but such free barons as are free-holders , holding of the king , and residing within the shire , shall represent the shire ; but by an act of parliamant , . it was declared that such as are free barons might elect or be elected , though they were not actual residenters , and that notwithstanding of this act which is thereby abrogated as to that point , and most reasonably , for their interest in the shire ceases not by their not residence ; and conform to this act the convention decided in all elections , june . nota , all elections are to be subscrived by six barons at least , and though in controverted elections these who have six will be preferr'd to these who have five , and if neither of the competitions have six , a new election will be order'd , because both are unlawful ; yet if all the barons were cited , and fewer than five were only present , a commission by these five may seem sufficient , because the absence of barons should not prejudge the shire ; yet in the convention . many inclin'd to think that a new election should be order'd in that case , because of this act , and that that shire ought not to have a vote who would not send legal commissions . though by this act the missives for calling parliaments or conventions ( which are here called general councils ) should be directed to such as were the last commissioners , in place of the sheriffs , yet now they are ordinarly directed to the sheriffs , and sometimes to any the king pleases , as in the parliament , . by this act the commissioners are to be choos'd at michaelmass head court , and failing thereof at any other time the free-holders meet , or when his majesty requires them ; and therefore it may be doubted if every shire are obliged to choose at michaelmass , since that seems to be ordered here , and the other dyets are only ordered to be failing of that head court : but yet many shires in scotland use not to choose at michaelmass , but delay elections till they be required . though by this act the names of such as are elected are ordained to be notified in writ to the director of the chancery by the commissioners of the last year , yet that is not now in observance , since his majesty uses no more to call parliaments and conventions by precepts out of the chancery , but by general proclamations . it is to be remembred that where there are elections at michaelmass , the shire cannot choose of new , as was found in the convention . in the case of the shire of perth , and ordinarly the proclamations bear as it did there , that the shire should choose where they had not formerly chosen at michaelmass , and so these elections were made without warrand ; but it may be doubted whether such elections would be invalid if the proclamations mention'd nothing , as to this point it was there alledged that the shire might make a new election , because the commissioners then chosen were denuded , and were become no barons ; to which it was answered , that this should have been represented to the council , who would have ordered a new election , but the shire could not proceed to elect by their own authority contrary to the proclamation . though this act has adjusted the weights and measures of the whole nation , and ordain'd the linlithgow furlot to be the standart as to that measure ; yet it is expresly provided by this act that if any persons be founded by infestment , tack , or contract , in a different measure , that measure contain'd in their private right should stand , but should be proportioned to the linlithgow measure , without prejudice to either party , that is to say , they should have right to the old measure fully , but it should be payed according to the new measures ; as for instance , the boll of galloway being six furlots , the master should have six furlots payed in to him , which exception was most just , because of the intrins●ck value of the lands to which the old tacks , &c. were proportion'd , but yet the lords sustain'd in milns a moulter , though much greater than the ordinary fourth part of a peek , because of constant possession , and found that this act did not extend to milns , since therein different measures are used according to the proportion of the service , nor was this act ever observ'd in any part of scotland as to milns . in conjunct-fees and life-rents also , the husband being oblig'd to provide the wife to particular lands , which he obliges himself to make worth so many chalders of victual , it has been found that he is oblig'd to make them worth so many chalders , according to the measure of the countrey where the land lyes , because his own rent is so payed ; and ministers in galloway , and other places where great measures are used , will get their stipends according to these measures ; the reason of all which i conceive to be , that these measures were made greater at first , because of the insufficiency of the victual of these countreys , and so the greatness of the measure does only equal the intrinsick value . this act having fallen in desuetude as to the linlithgow measure , is again renewed by the act , par. ja. . and many wish that corn were now sold by the weight , and not by measure , weight being the only sure rule of the intrinsick worth of corn ; but this being propon'd in the par. . the overture was rejected by a vote . vide observ . on act par. . k. ja. . supra . king james the sixth , parliament . for understanding this act it is fit to know that upon the of may . the presbyterian party taking advantage of the kings being engag'd against bothwel ▪ and in other difficulties , they held a general assembly at edinburgh , wherein they drew up several articles to be presented to the king and parliament , whereof spotswood names only four : . that the acts . against the discipline of the church , should be abrogated , and the present discipline establish'd . . that the act of annexation should be abrogated , and the patrimony of the church restor'd . . that abbots and priors , &c. nor none having commission from them should vote in parliament , as representing the church . . that the land should be purg'd of blood. the king rejected the second and third , but in complyance with the first article he did , because of his present difficulties , as spotswood observes , allow the present church discipline by general assemblies , synods , and presbyteries ; but yet he does not here expresly abrogat episcopacy , only the presentations are not ordain'd to be directed to them , but to presbyteries ; which presentations are again restor'd to arch-bishops and bishops by the act par. ja. . and spotswood tells us , that severals of the bishops possest even then by their titulars . episcopacy war again restor'd , so that the bishops did sit in parliament , by the act par. ja. . but they were not fully restor'd to their spiritual jurisdiction , till the act par. ja. . but in that act , this act is not abrogated , as it would certainly have been , if this act had abrogated episcopacy ; but this act is abrogated by the act par. ja. . by this act the collation and deprivation of ministers is declared to belong to the church jure divino ; but these words , or any siklike essential censures , having warrand from the word of god , are too general and may be abused . this act is now abrogated totally in all its heads , clauses and articles , by the act sess. par. ch. . which seems too general ; for though this act establishes presbytery , yet there are many clauses in it in favours of the protestant religion , and to which no answer can be made , but that , what this act has establish'd in favours of the protestant religion , was formerly establish'd by other acts , but the truth is , these acts are not so full as this . pettie in his history tells us , that by the seventh article of the foresaid assembly , it was desired that tacks set by the depos'd ministers should not stand : but by this act it is only declar'd that when ministers are depriv'd , their deprivation excludes them , tam ab officio quam beneficio , which has been doubted , because suspensions are only ab officio . by this act though the persons be depriv'd , yet it is declar'd that their deprivation shall not be prejudicial to tacks lawfully set by them before their deprivation , and the lords do expone the word lawfully so , as to extend to the setter himself , so that his successors can only quarrel these rights upon such reasons as the setter himself could have quarrelled them , vid. hopes major pract. tit. kirk . this act is explain'd by the act par. ja. . by this act the woman divorc'd for the crime of adultery committed by her , cannot dispone her estate to her adulterer , if she marry him , or to the children procreat of that pretended marriage , which has been introduc'd , not only as a punishment of the adultery when committed , but to discourage any from committing adultery , upon hopes that their children might succeed to their estates with whom they committed adultery , which is conform to the canon law , by which non licet eam ducere in uxorem quam quis polluit adulterio , and by the civil law , that woman could not institute that servant her heir with whom she had committed adultery , inst. de haered . instit . in princip . these marriages are likewise declar'd null by the . act par. ja. . vid. crim . pract . tit. adultery , pag. ● . though regularly liferent-escheats do not fall while after year and day ; yet such as commit slaughter within kirks , or kirk-yards , and the resetters of them , lose their liferent-escheat immediatly after declarator , and this liferent falls to the king , though in other cases liferents fall to the superiour , of whom the respective lands hold . it was usual to mortifie to abbacies , formal and established patronages of kirks , which were formally erected in parsonages , and to these the monks presented parsons , and were only in place of patrons ; at other times tiends were mortified and given to them ; and after the reformation , though tiends were declared the patrimony of the church by the act of annexation ; yet thereafter the lords of erection did prevail , by their importunity with the king , to erect these tiends in rectories , or parsonages , whereof the patronage was given to the lord of erection ; but there can be nothing so unjust or illegal as these patronages were ; and therefore by this act , the parliament finding this abuse was growing , did declare that all erections of kirk-lands , and teinds in temporal lordships and livings , to the prejudice of the kirk , and hurt of his majesties estate , and priviledge of his crown , were null , which is founded upon excellent reason ; for such erections of tiends were extreamly to the prejudice of the church ; tiends being clearly by former laws , declared to be the spirituality , and so the patrimony of the church ; . laicks having power to present whom they pleased , such erections did much hurt the church , since it gave to laicks the power of presenting . . it is too well known that such as are presented by these patrons , do ordinarly grant tacks in favours of the patron , and to his behove , which has been always lookt upon , as not only simony , but as most prejudicial to the interest of the church , making the ministry despicable , and tempting them to ill shifts , and discouraging worthy and honest men from seeking such slavish benefices , and therefore the church has been always an enemy to such impropriations , even when made in favours of religious monasteries ; for pope alexander anno cap. avaritiae . extra . de praebendis , says , intelleximus quod in ecclesiis vestris pensiones percipere consuevistis & antiquos reditus minorastis ideo mandamus ut antiquos reditus cum consensu archiepiscopi ad integritatem pristinam revocetis : and therefore the same pope alexander in the lateran council , made a canon against this abuse , which was seconded by pope clement the . cap. sicut extra ▪ de suplen . neglig . praelat . and by clement the fourth , in anno : cap. suscepti d● praebend . in . but this was perfected by clement the fifth , cap. constitut . de jure patronatus in clementin , where it is appointed that si certa portio ( called constantly in the canon law congrua portio ) non fue●●t ●ssignata per presentantem tune in paenam praesentantium ad dioces●●●● ipsos potestas hujusmo●● assignationis devolvatur . and since there was so great hazard in putting these presentations in the hands of monastries , what may be expected from laicks ? these erections likewise of new patronages , are extreamly disadvantagious to the people , because one gentleman has thereby right to force a minister upon all the other ancient and great heretors of the paroch . likeas , by being patron , he comes to have interest in all their teinds ; and since the great design of the submission and surrender , was , that every man might have right to his own teinds , this could never have been fully done , except the patronages had been surrendered , for the patron still would be in effect titular , by getting tacks . likeas , by the submission , as in the beginning of it , they submit , as having , or pretending right to the parsonage , vicarage , or patronage of kirks pertaining to the erections , so in the words of the submission , they submit how they may be denuded in his majesties favours omni halili modo , of all and sundry tiends , which they have of any other mens lands , by whatsoever right or title they possess the same ; and because his majesty will take into his princely consideration , what satisfaction they shall have for their tacks , rights , and patronages , according as his majesty shall find the validity thereof . therefore they submit , and his majesty considers in the decreet-arbitral , all the patronages as submitted ; and the reason why he determines nothing , especially for the patronages , is , because considering all the erection together , he determines satisfaction for that which is the true pecuniary interest , nor needed the act of parliament express patronages , because it only expresses these things , for which a pecuniary interest was to be given ; or these rights which were to be salved , but patronages was neither of these : but the act having annexed all the superiorities of kirk-lands , and pertinents thereof , pertaining to whatsoever abbacy , &c. according to the tenor of his majesties general determination , and the conditions therein exprest , it has thereby annexed all the patronages , and it is observable , that though reservations are made , yet there is no reservation of patronages . nota , that the kings advocat in his summonds of reduction , calls for all rights of patronages per expressum , and then sayes , and true it is that the said kirk-lands , and others libelled were annext to the crown by the act of parliament . this act is explain'd crim. pract . tit. heresie , num . . this act regulating the thirds of benefices is now in desuetude . observ. . that mercats are by this act only discharged on sunday in the countrey , and not in burghs royal , for this act is declar'd to be without prejudice of the liberties of burghs royal ; but this discharge is extended to all , act par. ja. . observ. . from the words , not being the mercat day of the next burgh , that even the parliament would grant no liberty to hold fairs in prejudice of fairs granted formerly to other burghs ; and upon this principle of common equity , & ne quid siat in aemulationem vicini . the lords reduced a fair granted to glenbervie by the king , because it was upon the same day that his majesty had granted a fair formerly to glensarquhar , and within a mile of the other : and another granted to the earl of aboyn , because upon the same day , and within a mile of an old fair at birse , though it was alleadged that the river of dee was here interjected , which by its great torrents about michaelmass , stopt all the north from coming to the fair , and frits . de nundinis treating this question , confesses that a fair cannot be said to be in aemulationem vicini , where the reason why it was granted , could be attributed to any publick good , or utility . it was also urg'd , that the granting fairs being a meer gratuitous concession , the king could not be bound up from granting a new fair ; and thus we see that the king erects new burghs royal within a mile of other burghs , and erects the suburbs of towns to be burghs of barony , albeit these may be said to be in aemulationem alterius ; and really they are very prejudicial , nor can that maxime hold any where , save in privat deeds done by one neighbour to another , principally in prejudice of another , but yet that burghs cannot be erected in prejudice of other burghs , and what may be said to be granted in prejudice of other burghs , and how far this general may extend , is to be seen in fritsius de nundinis . observ. . it has been urg'd that as by this act , these who had mercats upon sunday , may hold them upon a week day ; so if any person indite a court , and cite to a day then lawful , though that day be thereafter declared a holy-day , yet the persons thereto cited are bound to appear the next lawful day , even where the diets are peremptory . by this excellent act sheriffs and other judges ordinar are commanded to search rebels , not only within their own jurisdiction , but to advertise the sheriffs of the four halfs about , and that under the same pains that the traitors or rebels themselves incur ; and the recovering decreets is not sufficient , but they must seek , follow , pursue and present them to justice . this act is but ill observed , though most necessary and reasonable ; and by the act sess. par. ch. . it is declared , that not only by law , but by 〈…〉 and duty of their office , sheriffs , stuarts , and 〈◊〉 of regalities are obliged to put the laws in execution against the contemners of his majesties authority , as his proper officers . by this act the lyon and his brethren heraulds , are ordain'd to 〈◊〉 the whole arms , and as to this part , i have explain'd it in my book of herauldy . by this act also letters of treason are ordain'd to be executed by heraulds or pursevants , bearing their coats of arms , or macers ; which solemnities were found only necessary in execution of letters , that is to say , summonds of treason , but not in the execution of inditements of treason , december . . and the reason of the difference seems to be , because ●cts of parliament are stricti juris , nor can an inditement be c●ll'd letters of treason . likeas , the reason of these solemnities in executing of letters of treason , is , that the people may take notice who are cited for treason , as the weightin ss thereof requires , which are the words of the act , but inditem●nts being only given to such as are in prison , there needs no solemn●y ; and yet for the more security , inditements of treason are also executed against prisoners by a herauld . that part of the act which relates to the deprivation of messengers is formerly explain'd , act par. ja. . only it may be observ'd , that though the lyon by this act is ordain'd to deprive messengers by advice of the lords of session ; yet he uses to deprive them by his own authority , and in his own court , and though he publishes the deprivation at the m●reat cross ; yet executions after that publication have been sustain'd , if the messenger , after that publication was habite , and repute a messenger , november . . stenart contra hay . and though it may be alleadged that this publication should put the lieges in mala side , as well as the publication of interdictions and inhibitions ; yet the answer is , that there are publick registers in these cases which may inform these who are to transact , which cannot clear them as to the deprivation of messengers . though this act appoints that the justice-clerk or his deputs , shall within six days after criminal letters are returned , deliver the names of the persons denunced , with a brief note of the cause of their denunciation to the thesaurer ; as also , the names of such as are unlawed for absence from assizes ; yet this is not now in observance , all that is observed now being only , that upon a command from the thesaury ; these lists are given in so , that this act is rather forgot than in desuetude . by the last part of this act , all commissions of justiciary , for longer space than the particular affair for which it is granted , are discharged ; and therefore by this act it would appear , that commissions for justiciary , granted for a year , or any definite time , and not for a particular business , are null . it is likewise appointed by this clause , that such as procure commissions of justiciary , shall find caution to re-produce the process , and to pay that part of the commodity , which by the commission is destinated for the kings use , which is most rational , because this would likewise oblige these who get the commission to do justice , knowing that the process may be revis'd , when it is lying in publica custodia , that is to say , in the books of adjournal , for such processes ought to be brought back , and are usually registrated there ; but this is oftimes neglected , and it was debated in the case , turnbul against the lord cranstoun , july . that the tenor of a decreet of forfalture , pronunced upon a commission granted to the earl of dumbar , could not be proven , except the process were produced , whereupon it proceeded , conform to this act , since all that the witnesses could prove , was , that they had seen such a decreet , which is not sufficient , for else an unjust decreet of forefalture might be pronunced and lost , to the end the tenor thereof might be proven without any possibility of quarrelling the vvarrands , whereupon it proceeded . it may be doubted what is meant by that part of the commodity which belongs to the king ; and i conceive that when such commissions of justiciary are granted , the whole escheat belongs to the king , and the commissioners have only right to their necessary expence tanquam mandatarii , except a particular quota be condescended on in their commission , though some are of opinion that these commissioners have right to the same quota's that sheriffs have , since they are sheriffs in that part , by this act the comptrollers consent is requisit in all infeftments of feu-ferm or confirmations of the kings proper lands ; and though there be no comptroller now , yet the consent of the commissioners of the thesaury , or thesaurer , if he were , supplies the same . hence it is that this act appoints all feu-ferms and confirmations to pass the comptrollers register , which is likewise ratifi'd by the act par. ja. . it is sit to know that the thesaurer and comptroller had different registers , but now there is but one clerk to all the exchequer , who is called the thesaurers clerk , and he keeps but one register , each volumn whereof is divided in two parts , the one whereof contains only gifts that pass the exchequer , and the other , all other signatures of confirmation , &c. beasts found in his majesties forrests or parks , may be brevi manu , intrometted with , vid. act par. ja. . but since forrests are not now fenc'd , it seems unreasonable that a beast straying should be escheated , though where beasts are designedly driven into a forrest , it deserves punishment , and this act seems only to speak of fenced forrests , for it says , parks , or forrests ; and it requires advertisement , before beasts even found in these , can be escheat , vid. argent . tit. des assize , where this matter is fully treated . all english goods may be searched for , and if they be not sealed by the customers , may be confiscated , which act being put in practice at edinburgh , in anno . occasioned a great tumult , and the act was alleadged to be in desuetude . the word selling in this act is wrong printed in the last impression , for it should be sealing . nota , this act ratifies only an act of privy council , which ordained formerly confiscation ; and this shews how great the kings power was of old in the matter of trade , vide act par. ja. . which renews again this act. vid. last act par. ch. . this act is temporary , but from it , it is observable , that as the king may , as superiour , call for production of any vassals rights and infeftments , in a reduction or improbation , and even by way of exhibition , which is conform to the feudal law , and to c. . quon . attach . so the king may by act of parliament , sometime call for production of all the rights of his vassals of kirk-lands together , as in this act , or of all the rights of any particular place , as of the isles act p. i. . and i think the king might have call'd for them without this act , by proclamation , and albeit it be said , c. . quon . attach . that the vassal shall only be oblig'd to shew his evidents once in his life to the king ; this is not now observ'd , and the true meaning of it is only design'd against too frequent troubling of the liedges , which as no calumniousness , is never to be presumed in the king , or his officers . this act appoints lords of the session not to be admitted till they be twenty five years of age , which agrees with the law of france , langlei sem●str : c. . and with that of venice , contar. l. . c. . whereas of old , the romans admitted no senators till thirty five , which augustus retrenched till thirty , sweton . c. . vid. . act par. ja. . but that part of the act appointing that none shall be admitted lords , but such as have a thousand merks of rent , or twenty chalders of victual , is not now strictly observ'd , though this was an act to prevent the temptation of bribing , and that parties injur'd by them may have somewhat , out of which they may expect reparation , si judex litem suam secerit . the antedating of warrands of signatures is here punished , by the punishment of falshood and treason , three parts to the king , and the fourth to the party griev'd ; from which it may be argued , that where no party is grieved , the punishment cannot be infer'd , especially seing in that case it is presumeable there was no dolus , or fraud , vid. cap. . statut. robert . though reversions be strictissimi iuris ( which was the ratio dubitandi in this act ) and albeit the contract bear , that there shall be no redemption , without payment of more than ten for every hundred , as annualrent : yet it is here declared , that ten for the hundred shall be sufficient , and now six of the hundred will be sufficient , though this act does not generally say , that the consignation of the ordinary annualrent shall be sufficient . this act is explained in the act par. ja. . by this act , generally all unlawful and impossible conditions in contracts , or obligations amongst privat parties , are discharg'd in general , which is conform to the civil law ; by which impossible conditions adjected in testaments , are held as not adjected , or mentioned , but annul not that part of the testament , to which they are adjected , § . . ins●●t . de haer●d ins●it . but in contracts , the adjecting of an impossible clause do●s annul the obligation it self , l. . de verb. obliga . l. . de oblig . & act. and the reason of this difference is , because the law presumes , that where men adject impossible conditions in contracts , they are not serious , and they resolve not to oblige themselves ; but it is to be presumed , that all men being serious in their testaments , the adjecting of such conditions did proceed from a mistake . conditio turpis , and unlawful conditions are judg'd in law as impossible , l. . de cond . inst . and yet in this act the obligation subsists in contracts ; and the impossible , or unlawful conditions thereto adjected , and not the contract it self , are irritated and declared null ; but the particular that gave occasion to this general part of the statute , was that some persons did declare by a clause in the bonds which they took , that it should be lawful to them to charge their debitor at the mercat cross of edinburgh , and not personally , and that too upon so short a time as the party charged could not know , so that their escheat fell , and they lost personam standi in judicio , without knowing , or b●ing able to know their danger ; which clause is declared unlawful and impossible : and yet it may be alleadged this is not unjust , for when a man lends his money to one living in zeatland , or the remote isles , and the debitor suffers the day of payment to elapse ; it seems unreasonable , that for debts which may be very small , he should be oblig'd to send to these remote and dangerous parts , to charge the debitor personally , and the debitor may constitute a procurator at edinburgh to pay , & sibi imputet , that he did not pay , and it is presumed , that at edinburgh , which is communis patria , every man hath a procurator , else citations at the peer and shore of lieth upon sixty dayes , where the man is in the indies , were as unlawful as this is , and the performance as impossible . notwithstanding of this act , i find that a charge of horning upon six days , by a consent in the clause of registration , was sustained , though the person denunced offered to prove that he could not obey the charge , he living in so remote a place , january . meldrum contra tolquhon : and though by this act it be appointed ▪ that the denunciations upon such unlawful obligations shall be null , and that the users shall be oblig'd to denunce , and charge of new , according to the custom of the realm ; yet i see not how this can be , for the clause of registration insert , being upon six dayes , or a shorter time , cannot be a sufficient warrand , to charge upon more dayes , and so that new charge would want a warrand , except this act of parliament shall be said to be the warrand thereof . notwithstanding of this act , appointing all executions to be subscribed ; yet in inferiour courts , verbal executions are oft sustained . though the word executions is not derived from pure latin , or roman custom ; yet it seems founded on l. . ff . de re jud. and is derived to us from the french , who have , and do always use it in the sense we do , vid. argent . tit. des executions . vid. act par. ja. . by this act it is justly ordain'd that compensation be received , if instantly verified by writ , or oath of party before sentence , but that it be not at all received after sentence , by way of suspension or reduction , so that the only remedy in that case , is to pursue the debt as accords : which act is extended to decreets of the session , as well where the decreets are in absence , as where they are in foro , july . . wright contra sheil : such respect is given to the decreet of the lords ; but yet if contumacy be purg'd , it is thought that compensation may be received by way of reduction , had ▪ december . and generally compensation is received against decreets in absence , before inferiour courts : june . . earl marischal contra bray . though by the civil law compensatio tollit debitum ipso jure , and so that it may seem that this exception is still receivable any way , even as the exception of payment , which is receivable against decreets of the session in absence ; yet even by the civil law compensatio debet opponi , because it is facti , and so sibi imputet , the debitor that compeared not to propone it , i find this act is in terminis , observed in holland , vid. neostad . decis . . the intrometters with escheat goods as well as the donatar are oblig'd to pay the debt contained in the horning , whereupon the gift proceeds . observ. . that though generally the donatar is only thought lyable in this case , yet all intrometters with any part , though never so small , are lyable , and this is a kind of vitious intromission , which makes the intrometter lyable in solidum , and not in quantum lucratur . observ. . that the donatar will not be found lyable till after general declarator , because it is only general declarator that puts the donatar in the rebels place , as spotswood observes , march ▪ . but if the donatar delay to pursue a declarator , i think his negligence should not prejudge a creditor , for the same reason also , a donatar is not lyable if the horning be null , except he has intrometted ; but if he has intrometted , res non est integra , and so his offering to renunce the gift , will not be sufficient , march . fletcher contra kid. it hath likewise been found that the donatar will not be subject in payment of annualrent , due after denunciation , because the act appoints him only to be lyable for the debt contained in the horning , and this annualrent is due only after the horning , march . . fletcher contra kid , but this decision may be doubted , since he being by the act lyable for the debt accessorium sequitur principale ; and if the debitor had got the escheat himself , he had gotten payment of all . observ. . that this act appoints letters to be direct against the donatar , and intrometters , for payment upon six dayes . by this act such as reset , supply , or intercommune with declared traitors or rebels , are declared lyable in the same pains , for the which they are forefalted , or put to the horn ; and it is ordained that all the subjects are lyable to search , seek , take , or apprehend them , till they be out of the shire where they live , and to intimat to the next magistrat , to whose bounds they have chased them . item , if any vagabounds or suspect persons come to the shire , every man is obliged to advertise some magistrate . observ. . that here the subjects are obliged , without being desired by the magistrate , to search for , and apprehend rebels , and so the objection against the bond appointed by the council , january . wherein it was asserted , that no present subject was bound to take , or search for rebels , was a most illegal objection , expresly contrary , not only to this act , but to the true interest of the common-wealth , which obliges every man to do his utmost endeavour to keep the countrey quiet : nor can there be any thing more reasonable than that these who enter in a society shall promote the good of the society , by all possible means , and that these who have the protection of the law , should persecute all such as oppose it ; and this duty to the king , in taking such as are rebels to him , seems to be implyed in the very nature of our allegiance . but it may be argued , that this should only be extended to such as are traitors , or at least to such as are intercommuned , which is contrary to the express words of this act , whereby all men are discharged to reset traitors , or rebels , contemnantly remaining at the horn , so that the resetting all who remain at the horn , is here punished ; and this act being designed , as the act bears , as a further addition to the former law , must be extended against all rebels , for the common law did formerly reach this far against the resetting of traitors , and intercommuned persons , vid. act par. ja. . and whereas it may be pretended , that this act obliges only the lieges to assist magistrats in taking such persons . it is answered , that that was sufficiently secured by former laws , and this act obliges all the lieges simply . by this excellent act , it is provided that all gifts of escheat taken simulatly , either by the rebel himself , or by others , to the behove of the rebel , shall be null , for else the falling of their escheat would be no punishment to rebels , nor discouragement from rebellion . this simulation may be prov'd , either directly by the oath of the donatar , or may be inferred from presumptions , as all other frauds and simulations are , since the design of fraud and dissimulation , being to palli●t and cover a cheat , if presumptions were not sustained to astruct the simulation , it could never be discovered . the first presumption is , that the gift is granted to the children of the rebel , and if the children be unforis familiat , it is concluded to be a simulat gift presumptione juris ; and yet if a child in familia , have a peculium of his own . it may be alleadg'd that his father as administrator , being debitor to him , he has taken his escheat in his sons name for his security , but though the children be forisfamiliat ; yet by this act of parliament , there lyes presumptio juris against them , if this rebel continue in possession ; and therefore the children must prove that they have it for an onerous cause , and thus is to be understood that decision of dury , march . . lord keith contra denbolm ; where it was found that no contingency of blood , no not the being a son , was sufficient to infer simulation ; but if this were sustained simply , as ordinarly it is , then creditors may be easily cheated , and the donatar might still continue to have the advantage of the escheat , though not the possession of the goods . likas , by this act of parliament , it is expresly provided that the thesaurer may intromet with the goods , if they be in the possession of the rebel , his wife , or bairns , which shews that the parliament lookt upon this as a presumption to infer fraud . the second presumption is , that the gift was exped upon the expence of the rebel , though the donatar was creditor , except in so far as the donatar made use of the gift , being creditor for his own security , march . . and if yet the creditor was only creditor , by buying of land from the rebel , and knew that there was a prior right granted to another person . the lords declared that his gift should not prejudge that prior right , june . and if the rebel did once take the gift blank , though he thereafter filled up a lawful creditors name therein , the rebel procuring the gift so upon his own expence , this will infer it to be simulat , and extinguish the right , though the donatar was truely a lawful creditor , december . . lantoun contra scot. by which it may be concluded , that though originally the rebel may exped a gift upon his own expences , for the behove of a lawful creditor , where the rebel takes the gift himself , and thereafter fills up a lawful creditors name , that will not make it reconvalesce , nam quod ab initio vitiosum est tractu temporis non potest convalescere . that the gift was past upon the rebels expence , is probable per membra curiae ( viz. ) the servants of exchequer , and keepers of the seals , except the donatar has made faith at the passing of the gift , that it was truely to his own behove , the simulation having been then suspected , because he who sought the gift was the rebels son , december . . and generally , if the donatar in fortification of his gift and debt , offer to make faith that the gift is truly to his own behove , this would be sustained to purge any presumptions of simulation , december . . the third presumption is the rebels retaining possession , but how long possession would be sufficient to infer this simulation , is in arbitrio judicis , for the suffering the rebel to remain some time in possession is no presumption , even against a son , since the donatar must have some time to pursue , and recover decreets , but if the donatar suffer him to continue very long , this is presumptio juris & de jure , for though there were no simulation in the the case ; yet the negligence of the first donatar would make place for a second , and even the donators suffering the rebel to possess three years , has been found to be presumptio juris , for inferring simulation , june . oliphant contra oliphant . there is a title in the civil law de collusione detegenda , which though it run there only against collusion inter dominos & servos , yet the whole matter of collusion is there treated by the doctors , and it is defin'd to be sub specie litis lusus , vide barthol . ca●oll . de simulationibus , where this subject is fully treated . by the last clause in this act , it is provided that the thesaurer , or his deputs , may cause secure the houses of the committers of the crimes , upon the expences of the readiest of the escheat goods , that is like that annotatio bonorum , allow'd by the civil law , in criminals against absents ; and though the act of parliament specifies only that this may be done in crimes , yet i conceive that all rebellion is comprehended under the word crimes ; for in all cases , even for civil rebellion , not only may the thesaurer seal till caution be found , but even the lords of session will , upon a bill , allow the sealing of the rebels goods at the donatars instance , till caution be found . wilful setting of fire in coal-he●ghs is treason , vid. crim . pract . tit. fire-raising . this act is explain'd crim . pract . tit. beggars and vagabonds . this act against forestalling , is fully explain'd , crim . pract . tit . forestallers . tais act punishing the carriers of wool , nolt , and sheep into england , by escheating the transgressors moveables , is not abrogated by the union of the crowns , the nations being still distinct . this act against deforcers is explain'd , crim . pract . tit . deforcement . this act is explain'd , crim . pract , tit . art and part , num . . this act declaring that none but actual burgesses shall traffick , is fully explain'd , act sess. par. ch. . by this act all manner of persons , inhabitants of burghs , exercing any manner of traffick , or having change therin , shall bear stent ; which act was found not to extend to indwellers , though they have the benefit of the mercats , and had never any other residence but within burgh , and have the benefit of seats in the kirks , and so should at least pay contribution for the ministers stipend , january . . town of alerdene contra lesk . and by the act par. ja. . all such as have an hundred pounds of yearly rent , may be stented ; but by act of that parliament , they are only to be stented according to the value of what rent they have within that burgh , and not according to what they are worth else-where ; but it may seem that by the act , all who have an hundred pound to spend , ought to be stented ; that therefore indwellers are to be stented , though they have not an hundred pound of rent in house-mail , or trade , for the act sayes , if they may spend , and not if they have ; and therefore that the persons who come in accidentally to live in town , should not pay ; yet if they have no other constant dwelling , save in burgh , that in that case they ought to pay , because it is just , all subjects should bear some burden , and they bear none else-where , to which nothing can be answered , but that the act ordains only such to be stented , as have rents and livings copulative . observ. that by this act one of every craft is to be exeemed , as his majesties servant , from all taxation , watching , and warding , such as the kings tailȝour , his smith , &c. and yet this act does not exeem them actually , but only allows his majesty to exeem , if he pleases , so that except these be actually exeemed by their gift , this act will not exeem them . this priviledge is renew'd , act par. ja. . and his majesty by his gifts to his work-men , declares them to be exeem'd , conform to these acts , whereupon the council in anno . did find they should not be stented ; and all these priviledges are again ratifi'd in the parliament , . but there being a declarator rais'd of these priviledges before the lords of session in anno . it was objected , first , that because these acts being made in favours of the kings servants , whilst our kings liv'd in scotland , and they actually ty'd to service , the saids acts should not now take place , but should cease with the service , whereupon they are sounded . . though wrights , masons , &c. who are actually at present ty'd to serve , may plead this priviledge , yet the same cannot be crav'd by the kings barbers , shoe-makers , &c. who never serve . . the said exemption could extend no further than to the value of the imployment they had from the king ; but if the kings smith , &c. have from the people , the imployment that other poor smiths should have , it were not just that he should be exeem'd , which were to make them pay the value of the impositions that should be put upon him . . that these laws could not exeem from paying , for their other trades ; so that if the kings mason be likewise a vintner , he should pay for his gain in that trade . . these acts of parliament could only free from watching , and warding , which are inconsistent with personal attendence , but should not be extended to stents and impositions , which were not usual before these acts , since the general words of laws are ordinarly restricted to what ordinarly happens in the time . though these exemptions could secure against impositions laid on by the town , yet they cannot secure against impositions laid on in parliament by voluntar offers , made by the subjects themselves , in which those trads-men must be considered as voluntary offerers , as well as others , since they are re-presented in parliament as well as others : and in which act , colledges and hospitals are only exeem'd , and not they ; this debate is as yet come to no decision . by this act the crafts-men living in suburbs of free and royal burrows , are discharg'd to work , and their work declared con●●●●able ; but this act is not extended to suburbs , that are erected in a burgh of barony , for these are priviledged by their erection , and are not meer suburbs , but distinct jurisdictions , july . . and there is a decreet arbitral betwixt edinburgh and the suburbs , wherein there is a liberty allow'd to these who live in their suburbs , to work to strangers , but not to towns-men . this act of parliament has likewise been extended , not only to suburbs , but to all who were within the liberties and priviledges of burrows royal , though the saids places be not properly suburbs , and that the act of parliament discharges only the exercise of such crafts in suburbs adjacent to the saids burrows , july . . town of stirling contra polmais , whose tennents and trads-men in saint ninians lived a mile from the town of stirling , vid. etiam , durie march . . and the reason of this decision was , because such un-free men as live within the priviledges , do as well abstract the trade of the inhabitants , as those who live within the suburbs . it may be doubted whether , since this act of parliament allows only the provost and bailies , or the officers to intromet with , and escheat the materials so wrought , if therefore the crafts-men within towns may intromet , they being neither named in this allowance ; and because they are too interested to have had this power committed to them . it may be also doubted whether , though they may escheat the goods , when they are actually taken , if they may by vertue of this act , pursue the un-free-men ; for though there be no such warrand in this act ; yet it seems that without they have this allowance , the priviledge granted by the act , would be useless , since it would put them to keep more servants to catch the inbringers , then the priviledge deserves . vid. nota's on act par. . ja. . & crim . pract . tit. remissions . this act discharging the transporting of skins forth of the realm , under pain of confiscation , is still in force , and was introduc'd to encourage our own manufactors ; these skins when carry'd out , being wrought by strangers into several useful commodities , and sold back to our selves at great rates ; though this act discharges only the carrying out of calf-skins , hudrons , and kid-skins , yet by the act par. ja. . this is extended to all other skins ; and though by this act , the confiscation is to be for his majesties use , yet by that act , the half belongs to the apprehender . observ. . not only the transporting , but even the packing and pielling is found to be a sufficient ground of confiscation ; for packing and pielling is presumptione juris , concluded to be in order to transportation ; but it is not presumptio juris & de jure , since to elide the confiscation , it is sufficient to alleadge that the skins were packed and pielled , in order only to an inward transportation from one place of the kingdom to another . observ. . that by the act par. ch. . the exportation of all wild beasts skins , and shorlings , are expresly discharg'd ; and by shorlings are meant , skins which have the wool pluckt off , and comes from the word shearing ; but by that act , power is given to the exchequer to give licences for exporting of skins as they shall find cause ; and though the power to grant such licences , may seem to cast loose all these acts , it being very presumable that they would be purchast for money ; yet that was thought necessary , because if our trades-men knew that no skins could be exported , they would lessen the price as they pleas'd , and sometimes the trads-men cannot make use of all the skins in the nation , and skins are a considerable part of some mens rent ; nor should the exchequer give licences in any other case . this act renews the act par. queen mary , discharging all persons to stop the way to free-burrows , or sea ports , under the pain of being pursu'd as oppressors , and allows the lords of session to pursue the contraveeners summarly without any assize ; which act was necessary , because all actions of molestations , such as this , was formerly ordain'd to be try'd by assizes , and before inferiour judges , act par. ja. . from which act these tryals are excepted , because of their great importance , and that they require present expedition ; for which cause the civil law allow'd several interdicts against stopers of high-ways , vid. tit . . l. . ff . . by the act par. ch. . all high-wayes to mercat towns are ordain'd to be twenty foot of measure , and the justices of peace are ordered to see the high-wayes made to have that latitude at least : and by the civil law , via privata debet esse octo pedum in porrectum & . pedum in ansractum l. viae latitudo ff . de servit . prae . rusticorum via autem publica seu consularis tam lata esse debet ut currus obvii sibi invicem cedere possint coepol . de servit . rusticis , cap. . i find this law for securing the high-wayes to ●oyal burrows was very old in france , argentorat , pag. . where he very well observes that ita fit ut itinera quae ab agris paroecii● aut pagis in●hoantur l●●et in mercatum ducant publica dici non debea●● cum a mercatu ad mer●atum non ducant ut hoc textu sed e●si ab ur●ibus inci●iunt nec tamen in urbes aut alios mercatus ducant publica hac quidem lege non sunt . i find always that ways leading to burghs had a particular priviledge , by the civil law. this act allows the admiral no more jurisdiction than he exercised before the death of king ja. . notwithstanding of any specialities contained in their infeftments , and it may be doubted whether the admiral is to prove when he is challenged , that that for which he is challenged , was exercised by his predecessors in the time of king ja. . or if such as challenge the admiral , are to prove what was the custom then . but the admirals jurisdiction is now fully clear'd by the act par. . ch. . this act is explain'd , act concerning provestries . ch. par. sess. act . king james the sixth , parliament . this act discharging mercats and fairs on the sabbath-day , was made at the desire of the general assembly , as our history observes , vid. spotswoods history of the reformation . this act appointing such as contemn the decreets of the kirk , to be denunced rebels , is still in force , though it relates only to the decreets of presbyteries , and presbyterian judicatures , and though these be now abrogated . this act is formerly explain'd in the act par. ja. . it may be doubted whether this priviledge granted to ministers , freeing their stipends of all impositions can be taken from them by conventions of states , since conventions cannot derogat from acts of parliament , and they can only offer their own money , but cannot make laws ; and yet the convention . did burden ministers stipends with the imposition then laid on . it is observable from this act , that some crimes which are not capital of their own nature , become capital by reiteration , though many civilians doubt of this point , and yet crescente malitia crescere debet paena , l. . c. de servis fugit & plus punitur qui saepius deliquit , l. . § . . c. ad l. jul. de vi pub . by this act the pains of such as find caution to answer in criminal dyets , and report criminal letters , for law borrows are hightned , every earl or lord two thousand pounds ; every great baron a thousand pounds ; every free-holder a thousand merks ; every feuar five hundred merks , and these are called in our present stile , the pains of the new act of parliament . observ. . that it has been debated from this act , whether this caution should be found according to the quality of the pursuer or the defender ; as for instance , if an earl were pursuing a feuar , should he find caution according to the sum specifi'd for an earl , or for a feuar , and it was found that caution should be found for five hundred merks only , according to the condition of the defender . observ. . the quality of a burges is not here specifi'd , and if he hold land burgage , he is de praxi considered as a free holder , else he is considered as an un-landed gentleman , and if he holds feu of the burgh , he is considered as a feuar . observ. . the unlaw of such as compear not at the first justice air , is to be twenty pounds , that is to say , the master who presents not his tennents , is to pay twenty pounds over and above all other punishments , which is relative to the act par. ja. . and is there explain'd . vid. supra obs . on ja. par. act . ja. par. act . ja. par. act . this act annexing all annualrents payable to prelacies , to the crown , is abrogated , in so far as concerns bishops , by the act restoring bishops in anno . nota , that such customers and searchers as cheat the customs , are only punishable by deprivation , and escheat of their moveables ; and therefore it seems that they are mistaken who think that such may be punished by death , this being an extraordinary theft , both as to the value , the preparative , and the ordinary punishment not excluded . it may be likewise doubted , whether such as enter in compacts with customers and searchers , to defraud the customs , may be punished by the same punishment , because they are art and part . remissions are , notwithstanding of this act , past without previous letters of slayns , or consents from the parties , but the party may get an assythment , albeit the remission be past , all remissions are at present registrated in the thesaurers register , conform to this act , and in the secretaries register also , as all papers are that pass his majesties hand . though this includes the members of the colledge of justice in the priviledges granted to the colledge of justice with the senators ▪ yet of late by the act sess. par. ch. . freedom from impositions is renew'd to the senators only , vid. obs . on that act , where it is debated , that though advocats be not there mention'd , yet they are not thereby excluded . it would seem by the narrative of this act , that all patronages gifted after this act , should be discharged ; and yet the act discharges only such as are granted without the consent of the benefic'd persons ; nor can i see how these patronages should have been declar'd null , for want of the benefic'd persons consent , since the benefi●'d person being once provided , the kings disponing the right of patronage , could not prejudge them who were already entered ; though the act says , that these rights were granted to the great hazard of the persons provided , for they being once entered , no posterior right could prejudge them , and declarators upon prior rights might have prejudg'd them however ; but it seems that the reason why the consent of the living incumbent is requisite , is , because it is presumable that he would , and could inform truly to whom the patronage belong'd , and in all church benefices , when dispon'd , either the demission , resignation , or consent of church-men , has been thought requisite . the statutory part of this act was wrong printed in skeens impression , for whereas it sayes , that all such rights , where the beneficod person was alive , and their consent had , and obtained thereto , shall be null : it should have said , not had and obtained thereto ; but this is helped in the last impression . vid. crim. pract. tit. murder . but it is fit to add , that this act ordaining such as strick , or hurt a man within the kings palace , to be punished with death , is consonant to praetor cum l. sequen . ff . de injuriis . vide etiam l. . § . . ad leg . juliam de adulteriis ; and to the law of nations , fritz . de palatiis principum cap. . where he cites as the law of scotland , cap. . stat. will. by which , he who draws a knife in the kings court , is to be struck through the hand , and he that draws blood is to lose the hand , and he that kills any man is to pay twenty nine cows to the king , and to assyth the party ; which certainly is meant of a slaughter committed , where the killer should not die , as in accidental slaughters , or slaughter committed in self-defence , for otherwise that statute had been ridiculous , as it is now obsolet and innovated by this act of parliament ; and yet i think , that even by this act of parliament , he who stricks any man in self-defence , would not die ; and if the king be absent , some think that statuts punishing offenders within the palace , extend not to such cases , as placa . l. . ●pit . delict . cap. . though menochius does extend those statutes , even to that case ; but to prevent this debate , this act , bears expresly the king's palace where his highness makes his residence for the time , and it expresses the inner-gate , to cut off the ordinary debates , de consiniis palatii . though this crime may be pursu'd criminally , yet the lords may take a precognition of it , to the end it may be known how far they will remit the same to be punished by the criminal judges , in so far as concerns the stricking any man in their presence , as in sir john hay's ease and sibbalds . vid. crim , pract. tit. remissions vid. supra observ . on act par. ja. . it would seem by the narrative , that only such writs as were not written by notars and common clerks , who are notourly known , should have been declar'd null for want of the writers name ; and yet the statutory part declares all writs to be null , without exception , which want the writers name . observ. . this act is not by the lords found to annul seasines , and other acts of office , written by common-clerks and notars , though the writers name be not design'd in them , but only writs amongst privat parties , june . . observ. . that though the writers name be not condescended on , yet the lords will allow the user of the writ to condescend who was the writer ; and though this act of parliament appoints that , before the inserting of the witnesses ; yet if it be insert in any place , it is sufficient : and though the act appoints that it shall condescend upon the vvriters name , particular remaining place , and diocy ; yet diocies are now only condescended on , in instruments of notars ; but still there must be some designation beside the name and sir-name , such as a. b. servitor to such a man , which is sufficient ; and if there be moe of one sir-name , who where servitors at that time , yet is not the user of the vvrit oblig'd to condescend which of the servants it was , but he who offers to improve the said vvrit , must relevantly alleadge that of the date of that bond , he whose servant the vvriter is design'd to be , had no servant at that time who did write such a hand ; and for proving of this , must produce the hand-writs of all these servants at that time , february . . kirk-hill contra ketlestoun . it was debated upon this act , whether the lands of duncow , though here annexed by a publick law , were sufficiently annexed , so as to exclude the earl of nithisdale , who pretended that a year before this act he had a valid right , under the great-seal from the king , and so could not be prejudg'd by a posterior annexation , which behov'd to be salvo jure quoad him : to which it was reply'd , that this annexation being by a publick law , was not of the nature of ratifications , which were salvo jure ; and such acts of annexation were in effect the kings charter , and being granted by a publick act of parliament , in favours both of king and people , they could not be taken away , but by another act of parliament , & sibi imputet , he who had the prior right , and compeared not at the time of this publick law , and objected it ; but now after so many years , the king had at least prescrived a right , by vertue of this act , this case was not decided , but the lords inclined to think that there was a great difference betwixt original annexations , where special lands were annexed , as falling in the kings hands by a special forefalture , or other cause which they thought could not be quarrelled by the session , or other inferiour judicatory ; and general acts where lands formerly annext , are only repeated , such as this is , in which lands belonging to privat parties , may be by mistake repeated . nota , the lands of duncow , annexed by this act , came to the king upon forefalture of robert lord boyd , anno . before this act , decreets pronunced by magistrates within towns could not be the ground of a charge of horning , till a decreet conform had been first obtained before the lords ; but by this act , letters of horning are summarly appointed to be granted upon such decreets . it is observable , that though this act says , that letters of horning shall be granted upon the decreets of burrows in the same way as upon the commissars precepts ; yet it would seem that commissars had no such priviledge at the time of granting this act ; for that priviledge is only granted them by the act par. ja. . to which nothing can be answered , but that commissars had that priviledge , even at the time of this act de praxi , though de jure it was only granted them by that act for their further security . vid. act . par. ja. . this act giving the king twenty shilling of custom of every tunn of imported beer , is explained in the observations upon the act sess. par. ch. . it is observable , that by this act the dean of gild is founded in the power of judging all cases betwixt merchant and merchant , and is here declar'd to be the most competent judge , because the most knowing judge in such cases , and declar'd to have the same power that the like judges have in france and flanders , and in france such cases are judg'd by these who are call'd les consuls des marchants . the lords have found that according to this act , the dean of gilds court is a soveraign court in suo genere , and not subordinat to the towns court , july . . and they use to advocat causes from the admiral , to the dean of gild's court , upon this act , it being declar'd that he is judge to all actions betwixt merchant and mariner , though it be alleadg'd by the admiral , that these general words should be restricted by the nature of the respective jurisdictions , and so the dean of gild should be only judge competent betwixt merchant and mariner , in cases which fall out at land , but not at sea. the act related to here is the act parl. ja. . it is observable from this act , that it is there declar'd in geneneral , that acts of parliament should only in reason and equity extend ad futura , for regulating future cases ; for though declaratory acts may oft-times extend ad praeterita ; yet statutory acts should only extend ad futura . this act differs not one word from the act of this same parliament , and has been only repeated here by mistake . before this act , such as were at seid with one another , us'd ordinarly to fight together upon the street of edinburgh , and us'd to beat the magistrates , or their officers when they came to red them , and that truly gave rise to this act , though the narrative here bears only , that several persons used to deforce the magistrates in their execution of their own , or the councils decreets . by the act it is declar'd , that whosoever disobeys , or opposes the command of the provost and baillies of edinburgh , when they are executing the kings commands , or letters from the secret council , or session , or the ordinances of their own burgh , shall be punished as committers of deforcement , as seditious and perturbers of the common well . it has been found that naked assistance at such tumults , without arms , is not punishable by death , though a person be killed in the tumult , december . but convocation at all such tumults with arms , is punishable by death , if a person be murdered , as was found , september . . and the acting any thing , either by word or deed , was found to infer death . observ. that the using fire-weapons within town is discharged by this act ; and long weapons , that is to say , halbards , picks &c. are only allow'd , lest innocent persons passing on the street might be kill'd , but yet if souldiers shoot in defence of their prisoners on the streets , they are not punishable ; and this act was found not to militat against the kings granting commissions to the magistrates of edinburgh , to raise a company with fire-locks within town ; for the act discharges only fire-locks without the kings consent , and a commission implys his consent . the act here related to is the act par. ja. . this act is explain'd in the act par. ja. . vid. obs. on the act par. ja. . the abbacy of dumsermling was dispon'd by ja. . in a morning gift to queen ann. this lawyers call morganeticum ; and king charles the first was infeft in these lands , as heir to his mother . observ. that this confirmation was under the great seal , and under the seals and subscriptions of the states . king iames the sixth , parl. . this act seems very ill conceived , for it appears that wilful hearers of mass shall be executed to the death , how soon they shall be found guilty , or declared fugitive , since no man by our law dies upon his being denunced fugitive , except in the case of treason ; and wilful hearing of mass is not treason , even by this act. observ. . that as this act is conceiv'd , the wilful hearing , or concealing , is punishable by death , either by conviction , or being denunced fugitive before the justice-general , or the lords of privy council . observ. . that wilful hearers are only punishable , and the word wilful was added , because many go to the mass out of curiosity , or may be present by accident , and in all things that concern religion , special heresie owning and continuing , makes the crime ubi haerent dogmatibus suis ; and therefore the defender may purge himself by his oath as to his intention , which cannot be otherwayes proven ; and a fortiori , i think this should hold with these that are present at conventicles , either in fields or houses , since these are less crimes ; for they being men of known good principles , may go to get intelligence , or from curiosity , but it is safer to intimat this previously to some of the kings servants . observ. . it is generally observ'd , that all these acts concerning the mass , were of design ill conceiv'd by chancellors setons influence , as is reported , and that by them this crime can never be prov'd , since it can only be prov'd , per socios criminis , and these cannot be admitted witnesses ; but this is a mistake , for there may be many present out of curiosity , or the apprehenders may be witnesses , and even such as were present upon design in criminibus occultis , may be received ; since when law allows any thing , it must allow the means by which it can be prov'd ; and in heresie , less probation is sufficient , than in other crimes , clarus § heresie , num . . by this act the liferent-escheats of papists being denunced , are declar'd to belong to the king , though ordinarly the liferents fall to the respective superiours ; this is again renew'd to the king , act the same parliament . all erections of annexed property of the temporalities of benefices , are here declared null , except as to the lands excepted in the act of annexation , . which it seems must be understood , even though dissolution proceeded ; for otherwayes there needed not an act of parliament , since all dispositions of annexed property without dissolution , are ipso jure null ; but thereafter all such erections are for quieting the minds of his majesties good subjects secured and confirm'd at the restauration of bishops , act par. ja. . common kirks are such as belong in common to all the dignities of a chapter , and whereof each of them had a part of the stipend ; to which common kirks the chapter did not present as patron , but did nominat and collate ; upon the first suppression of popery they were to be conferr'd to ministers as ordinary benefices ; and the king , or such as had right from him , became patron , as coming in place of the popish clergy : and by this act they are ordain'd to be presented by the ordinary patrons to ministers who shall serve the cure ; and the reason is , because there was not then chapters : but by the act par. ja. . the saids chapters are likewise restor'd to whatsoever teinds , &c. which pertain'd of old to the chapters in common . this act ordaining the escheats and liferents of excommunicated persons to be null , if granted to their near relations , seems supers●uous , because the same was formerly statuted in general by the act par. ja. . nor find i any difference betwixt the two acts , save that the escheats of other rebels are by that act declared null , if purchas'd by their friends , or well-willers ; and this act declares only the escheats of excommunicated persons null , if granted to their bairns , or conjunct persons , so that it seems the escheat of an excommunicated person could not be declared null , though gifted to a confident person , since a confident person and a conjunct are different , for blood only makes conjunct persons , but trust makes confident persons . vid. observ . on act par. ja. . though by this act , when manses and gleibs are design'd out of church-lands only , the rest of the heretors of kirk-lands are to contribute for the relief of him , out of whose lands the designation is made ; yet this was extended in anno . by act of parliament , for the relief of these , out of whose temporal lands designations were made , who were therein to be reliev'd by the heretors of other temporal lands . i find that lands mortifi'd to colledges cease not thereby to be kirk-lands ; and therefore were found lyable to relief as other kirk-lands by this act , february . . but dury observes there , as the reason of the decision , that these kirk-lands were feu'd by the colledge for a small feu-duty ; and therefore it was more just that they should have been lyable to relief , as other kirk-lands ; and so it may be yet doubted , it kirk lands mortifi'd to colledges , and remaining with them , would be lyable to this relief . by this act no ●enesie'd person under a prelat , may set longer tacks than for years , and a bishop is allow'd to set tacks of his tiends for years , and an inferiour prelat for his life-time , and years thereafter , act par. ja. . but because some thought that that act did abrogat this act , as if prelats needed not the consent of the patron to such tacks for nineteen years , or five years respective ; therefore it is expresly declar'd by act par. ja. . and even these and all other tacks shall be null , if they be set for longer than three years , without consent of the patron , and that the act par. . did still presuppose the consent of the patron , though it was not there exprest , which was most just , for since it is the patrons interest ▪ that the cure be well administrat , and that he may get an able man after the incumbents death ; it was just that nothing should have been done without his consent , and for that reason , clericus nee resignare nec permutare nec pensione onerare potest invito patrono ; as is by the canon law , for by that law , the administration belongs to the patron , nec ab ejus dispositione anferri possunt , can. rationis , . q. . and by that law he was to be alimented out of the rents of the benefice , if he fell poor , and the person presented was to give his oath to the patron , for preservation of the temporals . this consent may be adhibite by the patron , either before , or after the setting of the tacks , c. . de jur patron ▪ dubitatur ; whether a patron may lawfully authorise a tack set in his own favours , since his accepting is equivalent to a consent , and he cannot be author in rem suam . though tacks set for longer space than three years be null by this act ; yet if they be set for longer time , they will be sustained , if the tacks-men restrict them to three years allanerly , july . . johnstoun contrà howdoun , even as though a bond wanting witnesses be null , if the same exceed an hundred pounds , yet it will be valid if restricted to an hundred pounds , and this seems to be received with us as a general principle in the interpretation of all statutes , both as to time and sums ; and therefore though by the act par. ja. . tacks of the rents of burghs be declar'd null , if set for longer space than three years , yet by the same reason , they should be sustained , if restricted to three years . these acts are explain'd in the act par. ja. . the design of this act has been , as i conceive , to secure such as had intrometted with the kings annex'd property summarly , by vertue of the act par. ja. . because it is probable the warrand granted by that act ; was thought dubious , and somewhat severe in the analogy of law , vid. observ . upon that act. a provost is in our law no prelat ; and therefore tacks sett by him are null , without consent of the patron , hope tit. kirks . this dissolution of the kings annex'd property has several specialities in it , as that it shall not extend to the setting in feu-ferm of castles , forrests , coal-heughs , and offices , &c. but that these shall remain inseparably annex'd to the crown ; and from this it may be observ'd , that to this day , all castles , palaces , woods , parks , forrests , pastures , coal-heughs , and offices , are to remain inseparably with the crown ; and therefore except they be expresly dissolved , they fall not under dissolution : this part of the act is renewed by the act par. ja. . this dissolution is likewise only in favours of kindly tennents , and ancient possessors , and of such as should pay their composition betwixt and the first of august , . this act is explain'd , crim. pract. tit. injuries , num . . by this act the duty granted by the states to the king upon wines , is to be charg'd for by letters of horning ; and i find by act of council , february . . that a commission is granted to the kings master-housholds , to break up the doors of such merchants , as refus'd to let the kings servants taste their wines , to the end they might chuse the best for the kings own use , but this certainly presupposed that the king would pay for the wines . from this and many other acts , it is observable that the parliament may , and does by a general law , annul rights granted to privat persons , without calling them , and without the hazard of the act salvo , though any one privat mans right cannot be declar'd null by the parliament , without citing him . by this excellent act , a horning or escheat following thereupon , cannot be taken away , and declar'd null upon acquittances and discharges , which were alleadg'd to be prior to the horning , so that the escheat could not fall , the debt being pay'd , except the producer of the discharge make faith that it is of a true date , because such discharges with ante dates , use to be granted by the creditor when himself is paid . it has been doubted whether assigneys be bound to swear in this case , but since this is factum alienum , which they are not oblig'd to know ; and if this be necessary , the cedent by refusing to swear , may destroy the assigney ; but yet the act of parliament obliges indefinitly the producer of the discharge to swear , and so it seems whether he be cedent or assigney , he is still bound , since his oath is solemnly requir'd by act of parliament , quaeritur , whether it can be remitted to quakers , anabaptists , &c. who think swearing unlawful . this act giving many priviledges to the kings forrests , seems not communicable to all forrests , though it be pretended that all forrests are the kings forrests , it having been very ordinary to erect forrests in privat mens lands , in imitation of the kings forrests ; but because these erections of forrests were very prejudicial to neighbours , since they might fine their neighbours , and poind their beasts ; therefore the lords of the session did in july . give their opinion to the lords of exchequer , that all such new erections should be stopt ; and it appears to me very clearly , that all forrests are not the kings forrests , by comparing cap. . leges forrestarum , which treats of crimes committed in the kings forrest , with cap. . which treats of the delicts committed in the forrests of barons , and wherein they are infeft , cum libera forresta . observ. . that that part of the act which ordains all that hunt within six miles to his majesties castles , vvoods , parks , or palaces , to be fin'd in an hundred pounds , is in desuetude ; and it seems then only to be observ'd , when the king himself dwells in his castles , and uses actually to hunt in his vvoods or forrests ; this act bearing , to be made for his own royal pastime , or at least this priviledge should not be continued to castles , or forrests , which the king has dispon'd to privat subjects . vid. observ . on the act par. ch. . though this act say , that the lords of session were not oblig'd to sit down till nine a clock ; yet it appears clearly , that they were oblig'd to sit down at eight by the act par. ja. . it is observable from this excellent act , that where evidents are not thought necessary to be kept , there is no reason to grant certification against them , after many years ; and therefore the lords refuse oft times to grant certification against the grounds and vvarrands of appryzings , such as executions , though they cannot be produc'd after twenty or thirty years , ex paritate rationis , though the act secures only against the not producing of procuratories , and instruments of resignation , and precepts of seas●nes ; and july . strowan contra earl of athol : this act was extended to secure against the production of the decreet of compryzing , and decreet whereupon it was led , albeit this extension seems dangerous , since thereby great estates may be carryed away by null compryzings , and small debts , which might be satisfi'd by less than a years intromission , whereas none or small prejudice can be infer'd from not producing instruments of resignations , &c. it is observable that this priviledge 〈◊〉 ●ot being oblig'd to produce such papers , is only allow'd to such as are , and were in possession for fourty years . there is likewise in this act a presumptio juris founded , that these from whom lands are appryz'd , will industriously abstract their evidents , and therefore the lords use to be very favourable in granting certification against compryzers . the act salvo jure is still subjoyn'd to parliaments , except here where it is insert in the midst of the acts of this parliament . by this act , lords of the session , advocats , clerks , writers , and their servants , nor no other member of the colledge of justice , nor no judges , clerks , &c. of inferiour courts , may take assignations to pleys , which is conform to the civil law , lib. . cod . tit . . ne liceat potentioribus patrocinium litigantibus praestare vel actiones in se transferre . nota , the right taken by them is not declar'd null , but themselves only punishable , and the reason seems to be , because when they are depriv'd from being members , the advantage they had over others , is taken away , and which advantage was the reason inductive of this act , nor should the punishment be extended beyond the cause , which is also conform to the opinion of the civilians , vid. vin select quest. jur . cap. . but it may be doubted if he who takes such assignations , should not be lyable to resound the damnages which are occasion'd by taking such an assignation , since it is a principle , that damnage is still due where the injury is done to any man against a positive law , though that law ordain not damnage and interest to be repay'd ; and in this case the taking such assignations is declar'd unlawful , and so an injury is done against a positive law. . without this the party injur'd is not repair'd ; for though the publick interest , vel vindicta publica , be repair'd by the deprivation ; yet the interest of the person les'd , which is chiefly to be considered is not . . deprivation is oft-times no punishment , and seldom a commensurable punishment ; for many members of the colledge of justice lose nothing by deprivation , and a plea may be worth a great sum , and their imployment worth nothing ; whereas damnage as it is a natural , so it is a most commensurable punishment . because this act discharges only members of the colledge of justice to buy plea's ; therefore it is still lawful for them to take assignations to plea's gratis , as a donation , july . . for as this falls not under the express prohibition of the act ; so it is no● presumable that they will be as keen in pursuing such processes , as these for which they have pay'd out money ; nor were it just to make the members of the colledge of justice incapable of their friends and relations liberality . by this act advocats servants do pretend they are members of the colledge of justice , because this act says , their servants , and other members . though this act and the rubrick discharges only the buying debateable lands , teinds , or possessions , and speaks nothing of moveables , nor even heretable bonds , mobilia , being ordinarly accounted vilioris naturae ; yet the lords do now ob paritatem rationis , extend this act to such as take assignations to moveable debts , or any other debateable rights . this act uses to be so interpreted , as to be extended only to the members of the respective courts , who take assignation , to plead before the court where they serve ; and thus if an advocat should take an assignation to a plea , depending before an inferiour court , it may be urg'd that this act should not reach them , because he has not influence before that court ; but if he should go and plead before that court , as an advocat may before any court , then the act would reach him also . item , though this act does not speak of procurators before inferiour courts , yet the word advocats , seems to comprehend them . by this act caution is to be found in actions of ejections , for the violent profits ; and though cautio juratoria , be ordinarly sustain'd , where persons cannot find other cautioners , yet it is not sustain'd in this case , july . . because this act says , that by the proponing of these defences against ejections , delays are granted ; therefore the defender , either in removings , or ejections , is not oblig'd to find caution , where the defence can be instantly verifi'd ; and although it has been doubted , whether this caution is to be found at the proponing of the defence , or at the first term assign'd by the act ; yet it is clear that the caution should be found at the first term assigned by the act , both because this act says , that the caution shall be found at the first dyet of ●itis contestation ; and because there must be some time given to find caution . nota , that in the brieves of dissasine , which was the same thing of old , that ejection is now , caution was to be found as here by the defender , quon . attach . cap. . num . . for clearing some mistake in the printing of my criminals , pag. . my meaning was , that there may be perjury in cautione juratoria , as for instance , if a person should depone that he could not find caution for the violent profits ; and yet it could be prov'd , that such a person who was very responsal , offer'd to be caution , this i think would infer perjury by this act it is appointed , that twenty dayes after the parliament is proclaim'd , and before it meet , four of every estate should meet to receive articles to be presented to the parliament , but this is now in desuetude ; for no state can now meet , except the burrows , and yet sometimes the king writs down to call whom he pleases to name to meet and consult previously , what laws are fit to be made in the future parliament . by this act also it seems that nothing can be presented in plain parliament , by any of the members of parliament , but that every thing must be first presented in the articles for eviting confusion , and this act was made use of to that purpose in the parliament , . against a proposal made then for having a commitee of grivances . to which it was then answered , that the articles being but a committee of parliament , they could not restrict their own constituents , and this act was rather directive than restrictive . this act is fully explain'd , crim . pract . tit . jurisdiction of the lords , num . . this act is explain'd , crim . pract . tit . paricide . this act is formerly explain'd , act par. ja. . where liferenters are to find caution . by this act also , a power is granted to the magistrats of burghs , to cause repair burnt and waste lands ; but yet ordinarly the magistrats of burrows use to give in petitions to the council , craving liberty to force the heretors of such burnt lands , to repair their burnt lands themselves , or else to sell their part , and when there are many small heretors concern'd , the council grants warrand to the magistrats to regulat their venditions , though i know it hath been alleadg'd that the council could not do this , because it was an inversion of property , and that this was only competent to the parliament ; and yet the council have still been in use to do so for the common good of the people , nor is any man a loser , since he may repair by himself , and if he will not , he gets his just price . this was granted to the magistrats of edinburgh in anno . publice enim interest ne civitatis aspectus deformetur & ideo constitutum est , l. . c. de jur . reipub . aream collapsam posse a fisco distrahi si proprietarius monitus eam reficere non curaverit , vid. l. . ff . de dam. insect . i have seen a decreet in anno . at the town of edinburghs instance , against several heretors , before the lords of session , for ordaining the heretors of these houses ( upon which the trone-church now stands ) to denude themselves of their right in favours of the town , ob utilitatem publicam , and to appoint four for them , and four for the town , for valuing the lands , that the price may be pay'd accordingly . but to prevent all such debates , it is appointed by the act sess. par. ch. . that the magistrats of burghs royal shall cause cite all such as pretend right to any such waste or ruinous lands , as have not been inhabited for three years , or shall be waste and not inhabited for other three years , to repair the saids lands , with certification to them that if they do not , the magistrats will cause value the same by certain persons to be chosen for that effect , and to sell the same ; which sale shall never thereafter be quarrelled : so that it appears that after this act , the privy council can grant no warrand to sell , except in the terms of this act , at the least they cannot grant any such warrand to build or sell upon any privat account , or even for beautifying the town , but the privy council has since this act , granted a warrand to force privat heretors to sell and accept their price , for making the entry to the parliament-house more large and convenient , though it it was alleadg'd that this could not otherwise be done than after three years , and in the way prescriv'd by the act of parliament , which has made no exception of any such case as this , and if the council could do this , they might as well have made the act of parliament it self ; for the power granted to magistrats by act of parliament proceeds upon the same motive of publick good. it might likewise have been alleadged that whatever the council might have done in cases of absolute necessity , as if the parliament-house had wanted an entry altogether ; yet they could not invert property meerly for the conveniency of enlarging the entry , beyond what formerly serv'd in our predecessors time . by this act chiefs of clans are not made lyable , but all land-lords and bailies are oblig'd to make their men-tennents and servants answerable to justice , and to redress the party skaithed ; which obligation is not alternative : and therefore the council in the case of leith and grant , august . did find that the land-lord was lyable for the skaith , though he should present his men . king james the sixth , parliament . by this act bishops are in effect restored to sit in parliament , though the act is cautiously conceived in favours of ministers , who shall be provided to bishopricks by the king ; but yet the bishops themselves were not restored to their jurisdictions in spiritualibus , till the act par. ja. . in anno . this act gave occasion of calling a general assembly at dundee , to whom the king proposed several overtures , and it was condescended on , that fifteen ministers should sit in parliament , because so many re-presented the church in time of popery , but remitted to a committee to consider what revenue each church-man should have for defraying that expence , and who should be elected . in this act likewise it is declar'd , that this restitution shall be without prejudice to the general and provincial assemblies , and presbyteries ; and the act of parliament here related to establishing these , is the act par ja. . it is observable that kirk-yeards have in many things in our law the same priviledge as kirks ; and therefore the killing , or wounding of men within kirks , and kirk-yeards , are punishable in the same way , act par. ja. . and the raisers of frays in kirks and kirk-yards , are punished in the same way , act par. ja. . and by the act par. ja. . fairs and mercats are prohibited to be kept within kirk-yards , as well as within the kirk : as also by the act , quon . attach . courts civil or criminal within kirks , or kirk-yards , are forbidden ; all which is conform to the canon law , cap. . de immunitate ecclesiarum & cap. h. t. in sexto decretal . by this act letters of horning are to be directed by the lords of the session , for bigging of kirk-yard-dykes , and for making stiles and entries to kirks and kirk-yards . by which last clause , it would seem also that heretors would get letters of horning against any heretor who lyes betwixt him and the kirk , to give him a sufficient way to the kirk through his land , albeit the words bear only , that there shall be sufficient stiles and entries in the saids kirk-yard-dykes : but when any thing is allowed in law , all is understood to be allowed , without which , that which is expresly allow'd cannot be useful : yet i find by a decision , june . . betwixt neils●n of carcassi● and the sheriff of gall●w●y , that the lords refus'd to grant a servitude through a privat mans lands , even for a way to the church , except the pursuer could prove immemorial possession ; and to reconcile this difference , it seems that every man must have some way to the church , but that he will not have right to any special way , if he seek the same upon the account of nearness , except he can prove immemorial possession , mornatius ad l. penult . ss . de just . & jur . shews that this law is observ'd in france , quaeritur , to whom a coal found in a church-yard , or trees growing there , will belong , whether to the heretor , the poor , or the patron , or if the trees will belong to the minister . this act declares all alienations of the annexed property to be null , except where they are set with augmentation of the rental ; and therefore to this day , there is still some small augmentation made ; but it has been doubted , whether if the charter bear an augmentation ; but yet it can be proven by the exchequer rolls , that the lands pay'd more formerly than is exprest in the new charter ; if in that case the alienation will be null , and i conceive it should ; for though the feuer may alleadge that he was in bona fide , because of the former charters ; yet seeing the hazard by this act of parliament , he ought to have looked to the exchequer rolls . i find the and the following acts till . of this parliament of king ja. , were at first statutes of session inserted in the books of sederunt , upon the of march . and here in . they are turn'd in acts of parliament , without mentioning that they had been acts of sederunt formerly , as uses to be done when the parliament ratifies such acts ; it seems that it was rather the exchequers part than the sessions , to have regulated the kings revenue and property , whereunto all the above cited acts relate ; but about this time , i find in the sederunt book , several acts ingrossed , bearing to have been made by the lords of secret council , session , and exchequer , met together , which is like the several chambers whereof the parliaments of france consist , who conveen all together when any solemn arrest , or decision is to be pronunced in purpuris , as they call it ; and these acts being declarations of what was law in relation to the kings property : it was more proper for the session to have made such acts , than for the exchequer , who raise the kings rents conform to law , but declare not what is so . this act declares that all alienations of the annext property are null , if they be set otherwise than in feu-ferm ; and therefore if any part of the annext property be dispon'd to be holden blench , or ward , the alienation is null : and i conceive the true reason to be , because originally the annext property was allow'd to be dispon'd ; for improving his majesties rent , which cannot be , except where there is a yearly rent pay'd ; and albeit sometimes the king and parliament may dissolve the annext property in order to a disposition to be made to a person who has deserv'd well of the king and estates , in which , the improving his majesties revenue is not design'd ; yet the general nature of annexations ought not to be altered upon such accidental accompts . this act annulling all rights of the kings castles , parks , coal-heughs , &c. being annext , was formerly statuted , act par. ja. . this act is fully explain'd in the act parliament , ja. . this act declares that the assize herring is a part of the annext property , and so cannot be set in tack , nor dispon'd ; assize herring is a certain measure of herring due to the king out of every boat ; and the meaning of this act is , that it cannot be set in tack without a competent duty , for it is set in tack for a just avail , and could not be well otherways collected ; but this being a casuality , it is jactus retis , and so except the duty be almost elusory , it is hard to quarrel it ; ex hoc capite , they were formerly annext by the act , par. ja. . this act discharges all offices of heretable chamberlainries , and all free gifts and discharges of the kings property ; but to cheat this act , the feuars suffer the bygones to ly unpay'd , and then obtain discharges , or else they obtain tacks of their own feu-duties for payment of a small and simulat tack-duty , call'd by the romans as . cassianus . because the annext property could not be dispon'd without dissolution ; therefore some to cheat these excellent laws , obtain'd dispositions of the feu-ferms payable to the king , for payment of a feu-duty ; and therefore these feudisirmae feudisirmarum are here discharg'd and annull'd . these acts are formerly explain'd in the act concerning the thirds of benefices , viz. ja. par. act . which are now obsolet , ministers being otherways provided . observ. that acts of parliament are to be observ'd by the lords of the session , except they be particularly abrogated in express terms , vid. gen. obs . this act is now useless , ministers being otherways provided . all vassals are oblig'd to exhibit their evidents to their superiour , not only by improbations , but in exhibitions ; though in law nemo tenetur edere instrumenta contra se ; and the reason of this speciality is , because the superiour is dominus directus , and so has a true interest in the land ; and if the vassal pretend any interest , he is oblig'd docere de titulo , to shew his interest , and to instruct the superiour in what is due to him ; and the king in our law is presum'd to be universal superiour of all lands ; and therefore may by a proclamation , or by way of action , or by a statute , as here , ordain all evidents to be produc'd betwixt and such a day ; but nothing save a statute or improbation can declare the evidents to be null , if not produc'd as here ; and since an improbation could not be universal , this statute was necessary in these times , when his majesties revenue was not established , nor known . feus are declar'd null for not payment of the feu-duty , either by the clause irritant contain'd in the infestments , declaring that if two terms run , the feu shall be null ; or by this statute declaring that if the feu-duty be unpay'd for two years together , the feu shall be null : but there is this difference betwixt irritancies upon this act , and these contained in the infestment , that the irritancy upon this act may be purg'd at the bar , but irritancies upon clauses in infestments cannot be purg'd at the bar , because they are incurr'd by paction betwixt parties , which the lords cannot alter ; for the superiour having given out the feu upon that express condition , it is not just to alter what was expresly treated amongst parties , december . . laird of pourie contra hunter . but yet i see no reason for this distinction , since this act appoints expresly that they shall be null , in the same manner as if there were a clause irritant contained in the infestment , nor do i see how the lords can alter what is so expresly introduced by a clear statute . if offer was made of the feu-duty , but refus'd , yet this will not be sustain'd when reduction is pursu'd ex hoc capite , except it be instantly offered of new at the bar ; nor will a term be allowed for purging , as was found in the former case , in which the lords also inclin'd to think that compensation will not be sustain'd to take off this irritancy ; for though compensation tollit debitum , yet there is a reverence due by the vassal , and which is considered more than the value of the feu-duty it self ; but yet if the vassal come and offer humbly to his superiour , before the term of payment , compensation of as much as is due to him in payment of the feu-duty , quaeritur , if this will not be sufficient , it may be doubted whether a minor will be restored against the not payment of his feu-duty , since it is not just that the superiour should be prejudged by the minority of his vassal , or that the nature of the feu should be thereby inverted ; and it may be also doubted whether this irritancy will be incurr'd by him who was hindred vi majori from payment , as by being taken and detained prisoner , or carryed to remote countreys , since by the feudal law in other cases , this does excuse a mora , and from all the incon●eniencies that follow upon it . . it may be doubted if this legal irritancy will be incurr'd where the charter bears another special penalty and certification , in case of the vassals failȝie in payment of his feu-duty , without substituting the same in the room of the legal one , or expresly renuncing it . . quid juris , where there are more heirs-portioners , if the failȝie of one of them will prejudge the rest , seing quoad the superiority , he is oblig'd to own none but the eldest daughter . . if an offer made of the feu-duty , not by the vassal but by a third party , will stop this caducity , seing the feudal obligation on the vassals part is a personal recognizance , and ought to be perform'd personally : and on the other hand these irritancies are unfavourable , and ought not to be extended . . quaeritur , if the vassals offering feu-duties for years yet to run , if that offer will hinder the incurring the irritancy for these years , seing a debitor may in law pay before his day come ; and what if it be such a prestation as must be performed yearly . . if the vassal will amit his feu , for not offering where he had a pretext to doubt who was his true superiour , and what he is to do in that case . so much use the lords to favour the vassal against such severe irritancies , that a retour bearing in the first part of it , an irritancy for not payment of the feu-duty si petatur tantum , they allowed the vassal to purge , though in the posterior part of the retour , these words were omitted in the clause irritant it self , february . . earl of mar contra his vassals . like to this irritancy was that of the civil law , whereby non solutio pensionis per biennium in civill emphiteusi & per triennium in emphiteusi ecclesiastica efficiebat ut emphiteuta a jure suo caderet ; by the civil law the irritancy & mora in not payment , was not purgeable , but by the canon law it was . in tacks also with us , the not payment of a tack-duty for two years or terms infers an irritancy , november . . murray contra nisbit . march . . seton of baro contra seton of pitmedden , which is also conform to the civil law , l. . ff . locati . this act is explain'd crim . pract , tit . usury . by the act par. ja. . the bearing and shooting with culverings or daggs , without the kings licence , is forbidden under the pain of losing the right hand ; and that act is here ratifi'd , and thereto is added confiscation of moveables : and by the act par. ja. . it is appointed that the contraveeners of these acts , may be pursu'd , either before the council or the criminal court , and when they are pursu'd before the council , it is provided that they shall not lose the right hand . it may be argu'd from this act , that where there are two punishments appointed by two different laws , the last is not added to the first ; but either it antiquats the first , or else either of the two can be only regularly inflicted , for else this act needed not say , s●●a that the ane pain shall not stop nor stay the other . from that act par. it may likewise be observ'd , that the secret council are not judges competent to life and limb , such as the amputation of the right hand . by the lex julia it was lawful to carry arms without rome , but not in the town , but they were every where thereafter discharg'd , tit. . lib. . c. ut armorum usus inscio principe interdictus sit . by this act is ratifi'd an act made at dundee , by the king , his nobility , council and estates , which was an act of the convention of estates , for the convention of estates ordinarly considered the matter of coinage ; nor needed that a parliament , because coinage is a part of the prerogative ; and by the estates there were mean'd some of every estate , taken by the king for advice . from this act it was urg'd in the lord hattons case , that . by this act it is clear that we had a different standard from england , which is to be eleven pennie fine . . that it was lawful to melt down current forraign coyn , because this act allows it to be us'd as bullion . nota , this is the first act that mentions the general of the mints office , as different from the rest . by this act it is clear that the convention of estates made acts also discharging the transportation of wool and the like ; and this act as to wool is again ratifi'd , but a power is allow'd to the exchequer to transport wool ( contrary to this act ) act par. sess. ch. . but even this act discharges only bypast licences , but not licence for the future , for these are allow'd even for wool by the act of this same parliament . by this act customs are declar'd to be due to his majesty of all that is brought in from forraign nations ; and by the act sess. par. ch. . the ordering and disposal of trade with forraigners , is declared to be his majesties sole prerogative ; and therefore some think his majesty may impose upon forraign commodities what he thinks convenient ; for since he may discharge the trade , if he pleases ; it seems to follow , that he may burden it as he pleases . by this act an a , b , c. of the customs is to be put upon all commodities , that is to say , a particular index of the several customs imposed upon every several commodity , is ordain'd to be made according to the letters of the alphabet , and this has varied in several ages ; the present a , b , c. being made by order of the parliament . vid. statut . david . . cap. . num . . where this priviledge as to paying of customs , is formerly declar'd ; and by the canon law this was likewise declar'd lawful to princes , vid. perez . ad lib. . c. tit . . num . . & l , . c. de jure fisci , where it is said , officialibus v●lentibus ea capere debet acquiescere . from these words of this act , albeit it cannot be deny'd that his majesty is a free prince of a soveraign power , havand al 's great liberties and prerogatives be the laws of this realm , and priviledge of his crown and diadem as any other king , prince , or potentat whatsoever : it is observable , that our kings are here acknowledged to be absolute and soveraign monarchs , as is likewise more fully declar'd by the act par. ja. . in which it is said , whom the hail estates of their bounden duty , with maist hearty and faithful affection , humbly and truly acknowledges to be soveraign monarch , absolute prince , judge and governor over all persons , estates and causes , both spiritual and temporal within his said realm : by neither of which acts , i conceive our kings are so absolute , as that they have a tyrrannick , or despotick power , but that they are so absolute , as that they have power to do every thing that is just and reasonable , though they be not thereto empowered by particular acts of parliament , and therefore they are ill subjects , and worse lawyers , who allow the king to do nothing but that for which he can shew an act of parliament ; since his being an absolute monarch implyes this innate power ; and therefore it follows by a better consequence , when any thing is contraverted , that the king may do the thing in controversie being reasonable , if his power be not as to that point restrained by a particular act of parliament . it is likwise very observable that this power of absolute monarchy does not flow from the people , but is his own right , for no act of parliament grants the king any prerogative , but only declares by way of humble acknowledgement what his prerogatives were , principibus , says tacitus , summum rerum judicium dii dederunt , subditis obsequii gloria relicta est , lib. . armal . vid. observations on the act par. ch. . where our parliament acknowledges that our kings hold their crowns from god immediatly , vid. act . par. ja. . i know some pretend that the kings power is here declar'd to be absolute only in opposition to the pope , and implyes no more but that he did not depend upon the pope ; but this is very groundless , for he is here declared absolute in relation to his laying on of customs , in which the pope is no way concern'd ; and generally the kings power in relation to ecclesiastick rights , is said , to be supream not absolute ; and in civil rights , is said to be absolute , and not supream . by this act english cloath , and all other english commodities made of wool , are forbidden , for the incouragement of our own manufactures ; but since the union this prohibition is taken off , and a great custom is only impos'd by the act par. . sess. ch. . but are thereafter upon the erecting of our manufactures , absolutely discharg'd by the act par. ch. . these acts ordaining all ships to have special cocquets , containing an inventar of the goods which they bear , and the names of the merchants and owners , are yet in observance ; but the merchants do not still make faith upon these points , as is appointed by this act : and if the keepers of the cocquet absent themselves to the prejudice of the merchant , or take more for the cocquet than the sum of fourty shilling , they are to lose their place , and repair the merchants damnage by the act par. . ch. . this act and the seven following acts , till the . are very clear and need no observation ; only by lossing of goods in these acts is meant breaking of bulk . this act is but a branch of the act. this act appointing three burghs-royal to be made , one in kintire , one in lochaber , and one in the lews , is not only not in observance , but the erection of a burgh-royal in the lews was unjustly oppos'd by the burrows in anno . upon pretext that it would communicat their priviledges to forraigners and strangers , viz. hollanders who offer'd to come and settle there ; whereas it would only have dilated and improv'd our trade , and these forraigners had presently become scottishmen . by the act par. ja. . inhibitions and interdictions are to be registrated in the sheriff-clerks registers : but by this act all letters of horning , inhibitions , interdictions , and their executions are to be registrated in the registers of the respective bailliaries , stewartries , or regalities , within which the persons dwell , against whom these executions are ; but if these persons be out of the countrey , they must be denunc'd at the mercat cross of edinburgh , and peer and shore of lieth , and not at the head burgh of the stewartry , bailliary , or regality , july . . cunninghame contra cunninghame ; and that because this act of parliament speaks only of persons dwelland within the kingdom : but it may be yet doubted , whether the single escheats of persons out of the countrey may fall upon denunciations at the mercat cros● of edinburgh , and peer and shore of lieth ? or whether liferent-escheats will fall , except the rebel be denunced at the head burgh of the shire , regality , or stewartry wherein his lands lyes ? since if he had been within the countrey , he ought to have been denunced in the respective jurisdictions within which the lands ly . albeit this act appoints all letters to be executed within regalities and stewartries ; yet if these jurisdictions have no known head burgh , the escheat will be sustained upon a denunciation at the head burgh of the shire , january . . scot contra dalmahoy . by this act all hornings , relaxations , inhibitions , and interdictions that were to be registrated in inferiour registers , are ordain'd to be presented judicially before a notar and four witnesses ; which formality is thereafter found not to be necessary , and is abrogated by the act par. ja. . vid. crim . pract . tit . theft . because the money had risen at this time to a great value , so that the same piece of money which passed formerly for one penny , was worth ten the time of this act ; therefore it is justly appointed by this act , that all the unlaws shall be raised , so that the same delict which was fined only in twelve pennies before the first of march . ( that is to say , before the first parliament of queen mary ) should be fineable in ten shilling of the money current the time of this act , gel. lib . c. . tells us that the romans were in this same manner forc'd to augment the penalties of the twelve tables , because lucius veracius , took pleasure to beat all that past him , because he was only to pay twenty five asses for every blow , according to that law. this act is explain'd crim pract . tit . beggars . from this act it is observable that he that is charg'd with lawborrows , shall be as lyable in the contravention , as if he had found caution , though he has not found caution ; it being unjust that by his contempt he should put himself in a better condition ; and it is by the same reason that an appearand heirs liferent escheat falls to his superiour in the same way , as if he had entred ; since it is unjust that the superiour should be prejudg'd by th● appearand heirs lying out . observ. . that by this act when any man finds caution , being charged with law-borrows , he who raises lawborrows has action against either principal or cautioner at his option , as in other pecunial obligations ; which words , viz. as in all other pecunial obligations , are added , because by our law , he who is a cautione● ad factum praestandum ( such as they are who become cautioners , for executors , messengers , or tutors , &c. ) is only lyable after the principal is discuss'd , because they being only cautioners for the principals performance : it must be first known , whether the principal has performed , and thus the beneficium discussionis ; that was of old competent by the civil law to all cautioners , is only competent by our law to such cautioners only as become cautioner● ad factum praestandum . this act appointing that the pains of the general bond , shall be divided betwixt the king and the party , is to be understood of the general bond of lawborrows , which is appointed by the act par. . and act par. ja. . even as the pain of special lawborrows , is to be divided betwixt the king and the party , by the act par. . ja. . for that act related only to privat lawborrows , at the instance of privat parties ; and therefore this act was necessary in the case of general lawborrows , exacted at the kings instance , for the security of all his subjects , from such as he thinks lyable to suspition . it was and is ordinary for the king and council , to charge heretors who are at feid to give bonds of assurance to one another , and that upon six hours advertisement , under the pain of rebellion , vid. the council registers , july . and which is a great instance of the kings power allow'd him by law , against those whom he has reason to suspect . the rubrick of this act is wrong , for sheriff clerk bring not their books to the exchequer , but to the lord register . by this act it is appointed that all such as are commissioners for parliament shall be authoriz'd by the subscription of a great number of the barons then present , and the subscription of the clerk of the convention , else to be null , which act was found not to be in desuetude , by a decision in the convention , july . where it was found likwise that this act extended to commissions for conventions , as well as to parliaments ; for though this act speaks only of parliaments ; yet parliaments and conventions being called the same way , the commissions should have the same solemnities , and the reason why the sheriff-clerks subscription is requisit , is , because he is the publick servant of the shire , and so it is presumable that he will mark exactly all that was done , and will not suffer counterfited subscriptions to be put to commissions , being to be lyable himself , whereas otherwise commissions may be obtruded upon the convention with false subscriptions , as was done in that same meeting ; and which dangerous falshood cannot otherwise be well fastened upon any other , since the commissioner may justly alleadge that the commission was so granted to him , and one may be chosen a commissioner who is absent , in which case he cannot know who sign'd . burrows having great freedoms and priviledges from the king , are therefore oblig'd to have sufficient prisons , for receiving such as are attached for crimes and debts ; which act was found to oblige baillies of burghs of regality , as well as burghs royal , july . . and stewarts of stewartries , june . . and these words of this act , by the sheriffs to stewarts and baillies of regality , are wrong printed , for the word to should be or ; but this act was not found to oblige baillies of a burgh of barony , march . . nor bishops baillies , march . . but the baillies of the head burghs of stewartries were thought to be oblig'd by this act of parliament to receive prisoners ; albeit the act of parliament appoints them to be presented only to stewarts and baillies of regality ; but speaks not of baillies of the head burgh of the stewartry , june . . cheap contra the baillies of falkland : where it vvas likevvise found , that the baillies keeping a rebel eight or ten dayes in a privat house , and thereafter imprisoning him , vvere not lyable super hoc medio , except he escaped by their negligence , or the insufficiency of the prison ; and it seems by the act of parliament , that these burghs are only oblig'd to have prisons , vvhich have provosts and baillies ; for the act appoints the prison to be upholden by the provost , baillies , &c. though the rubrick sayes , that prisons should be bigged within all burghs , and it may be doubted from the vvords of the act , vvhether burghs vvhich have no common-good should be lyable , especially seing magistrats are oblig'd to keep prisons for the kings use , because they have a common-good from him. if the magistrats do not receive rebels , or have not sufficient prisons , they are lyable for the debt , and that vvithout calling the principal debitor , since the magistrats are lyable ex suo delicto , and these jails are found not to be sufficient vvhich vvant cat-bands , and outward chains , because the prisoner cannot force those from vvithin , but the prison being sufficient , and sufficiently guarded , vis major , is a sufficient defence : and though this act says only , that they shall secure persons presented to them ; yet they are found to be oblig'd to search any house vvhere the rebel is said to be , july . . farquhar contra magistrates of elgin ; and though this act bears , that they shall detain all such prisoners upon their own expence , yet this is only extended to prisoners taken ob vindictam publicam , but it is indulg'd to the tolbooth of edinburgh , that they shall not be oblig'd to receive any who are offered to prison by privat parties , till the presenters find caution to aliment them . this act appoints those prisons to be made for sure imprisoning , keeping , and detaining of such prisoners as are presented , and therefore the magistrats cannot let them out , either to church , or to go about any of their affairs , hovv important soever , though vvith a keeper , since squalor carceris is thus eluded ; and therefore in such cases the magistrats must be authorized by a warrand from the secret council , or lords of the session , and that by an act of sederunt in anno . and if the rebel be suffered to escape or go abroad , the magistrats vvill not only be lyable , but they vvill get no relief from the cautioner , though they take assignation to the debt , since tenentur ex proprio delicto , and the cautioner is prejudg'd of his relief by that their delict , january . . this act is formerly explain'd in the act par. ja. . this act is formerly explain'd in the act par. ja. . since by this act all burgesses are to be stented according to their rents , and holding within burgh : it may be doubted if a burges have no actual trade , but only money owing him , by persons without the burgh , if he may be stented according to that estate , since it is no rent , nor holding in burgh ; but the answer is , that mobilia semper sequuntur personam ; and therefore he may be stented according to that money : it may be doubted if gentlemen who never had any trade , but dwell in the town very long , may be stented , though they be honorary burgesses only . item , if they can stent for ministers stipends , strangers within burgh , who are not at all burgesses ; and this act seems to imply , that inhabitants as well as burgesses , may be stented according to their estates within burgh , and that all who have advantage by the ministry should pay ministers . there are two ways of levying subsidies in scotland ; the one is by taxation , which was the old way , and which taxation was uplifted according to the retour : the other is by way of cess , in which the subsidie is uplifted according to the late valuations , wherein every mans land rent was given up , as presently possess'd . the subsidie granted by this act , is by way of taxation , and the old way of uplifting subsidies by taxations , may be fully herein seen , and which is very fit to be read upon that accompt ; and in which it is evident that the clergy pay'd the one half , including the erections ; but in anno . a proposal being made that the subsidie then offered , should be uplifted by way of cess , and not by way of taxation . these ensuing reasons were represented against that proposal , and which i have here insert , because they tend very much to the clearing many of our old laws and customs . the reasons were , . that the rule and way for uplifting taxations has in all ages been according to retours , and the taxed rolls until these late unhappy and irregular times ; from which it is humbly conceiv'd a rule and presedent ought not to be taken . it is beyond all question , this being the good old way , though it were upon no other account , ought not to be changed , the danger and inconveniency of the alteration of ancient laws and customs , being so great and obvious from the late experience of these kingdoms , that this age needeth not to be put in mind of the same , but may be a sad remembrance to posterity . . the foresaid way is only now the legal way wherein taxations can be uplifted at this time , seing the same is determined and authoriz'd by ancient and uncontroverted customs in all ages , and beyond memory , and by the law of nations , and the fundamental law of this kingdom ; ancient national custom is law , and of as great force as statute , and is the great basis and foundation of the power , and rights , and property of the prince and people , which for the most part are warranted and secured by the common law and custom , and not by express act of parliament and statute . . this way of uplifting taxations and the proportions of the same , payable by the respective estates , is designed and established by express laws and acts of parliament , so that the same cannot be altered but by a parliament , which only has power to repeal as appears by the act ja. par. . intituled , these retours should contain the old and new extent ; and the act . ja. par. . ordaining all feu-lands annex'd , and other feu-lands vvhatsomever to be retour'd , and vvhen any taxation or impost is to be rais'd , that the feuers shall be charged according to the retour ; and by the act ja. par. . ordaining his majesties property to be retour'd , and such lands as are dissolv'd and dismembered from baronies to be retour'd , and charged according to the retours , in order to the payment of taxation , and divers others , and in special all the acts of parliament concerning the granting and uplifting taxations . . whereas it is pretended by the heritors of the western shires , that their retoures are higher than in other shires , and that it should be a more equal way that the taxation should be uplifted as c●sses , according to the valuation , without respect to retours ; these gentlemen have no reason to complain , being their own deeds , procured by them , upon the verdict of their own friends and neighbours per fideles homines patriae , and according to which they have pay'd not only taxations , according to the old extent ; but his majesties casualities of none-entry , relief , and siklike , according to the new extent contain'd in the said retours , and has been also in use to uplift the like casualities from their own vassals , according to the said retoure ; that the retours should be altogether taken away , both as to old and new extent , it is conceiv'd that they will not desire , seeing if their retour should be lessened , as to the new extent , it would be an irrepairable prejudice to his majesty , as to his ordinary benefite and casualities of none-entry , relief ; and siklike a prejudice to themselves , as to the same casualities due , and payable to themselves by their vassals , and what incongruity should it be , that the same retour should be altered as to the old extent , and should be stated as to the new , and that it should be still a rule , as to their own interest and benefite , and not as to the payment of the taxation to his majesty , as it has been in all ages , it being also considered , that they cannot say that the lands are valued unjustly by their retours , and extend to more than the true value , the time of the retouring of the same , and since that time they cannot deny that they are improven for the most part above any proportion . . the interest , and consequently the way of proceeding of lawful princes ; and usurpers being so different and opposite , that as princes are patres patriae , and do cherish and intend the flourishing of their subjects ; so by the contrary , it is the interest and practice of usurpers deglubere , to squize and oppress the people , that they should not be in a capacity to shake off the yoke : it is neither the honour nor interest of the countrey to take a pattern and rise from the usurpers to overturn the ancient law of the kingdom , especially in the matter of taxations , seeing the necessity and fatal course of these times , in order to maintaining of war against his gracious majesty , and his blessed father did not only require a taxation , which was an easie burden to the people , and were chearfully granted , and oftimes offered to his majesties royal predecessors as an aid and subsidie , when their occasions did call for the same , but the usurpers were driven to exact a considerable part of every persons estate , as a constant tribute , under the notion of taxt and loan maintainance , cess and such like burdens , which cannot be remembred without horrour ; and in order to the same , to introduce a new way by valuation , whereas his majesty is to have an ordinary taxation ; and therefore there is no reason but that the same should be rais'd in that good old and ordinary way , that has ever been used in the time of his majesties father , and his royal predecessour . . the way of cess , both as to the manner and thing is so hateful to the body of the people of this kingdom , that though exhausted in a low condition , they did offer , and chearfully grant to his majesty a constant yearly taxation and annuity , during his majesties life , of pound sterling , upon consideration expresly mentioned in the said act , that his majesty had signified his royal resolution , not to raise any more cess , it cannot be expressed how great dissatisfaction and apprehension it would beget in the hearts of the people , if that unhappy way of cess should be reviv'd , under what name or notion soever , now after his majesties restitution , and that the people had just reason to think themselves secur'd by the ancient laws and custom of the kingdom , and his majesties gracious resolution so recently and solemnly expressed by his majesties late commissioner in parliament , and recorded in a printed act , being the of his majesties late parliament , and first session thereof . . the western shires , being only five , and the remnant shires who plead for the good old way , according to the ancient laws of the kingdom , being five times more , it is humbly represented , that the interest and number of so many other shires should weigh down the pretences and desires of so few shires , for a novation contrary to the law and liberty of the kingdom ; it being also considered , that though the loyalty of some noblemen and gentlemen within the said western shires , be above all exception , and be more eminent , that there are so few of sound principles there , yet to speak modestly , the generality of the inhabitants of these shires has not been so forward to desire or promote his majesties restitution and interest , that now after his majesties happy re-establishment , they should obtain what they could never effectuate in any time , and should be gratifi'd to the prejudice of other shires of undoubted and constant loyalty , and the overturning the ancient law , and way of the kingdom . . as to the pretence of inequality in the old way , it is to be considered , that though an arithmetical proportion and exactness is not to be expected in any way ; yet there is more reason to presume for the justice and equity of a legal way , venerable for antiquity , warranted by express laws and immemorial custom , which for any thing known , had its beginning in the time of freedom , and has been continued in the best , most peaceable and pureest times , notwithstanding any endeavours to the contrary , than for a way contriv'd and hatch'd in the heart and fury of trouble and distempers , and brought forth and obtruded upon the countrey with so much partiality and factiousness , that it is well known that the shires , and persons who were in opposition to his majesty , had so great and prevalent interest for the time , that the valuations , both as to the quota of shires , and proportions and rents of private persons were carry'd on by the instruments and commissioners , most inequally to the advantage of their party , and the evident prejudice and pressure of whole shires , and all persons who were sincere , or had the least affection for the royal interest . . by the common and feudal law and law of the kingdom , where the heir of the vassal dieth , not entered , the superiour during the none-entry , has right to the duties of the land holden of him , and when the heir of ward-lands doth enter , the superiour hath right to the duties for a year , under the notion of relief , which in both these cases of relief and non-entry , are payable according to retoures and the new extent ; if the old way of retoures should be altered in relation to the payment of taxations , why not in order to none-entries and relief , so that they should be payed , not according to retour but valuations , there being no reason that the saids casualities are not exacted in rigour : but the ancient law and custom for retoures . how dangerous the preparative may be , if the way of retoures should be altered , even to those who are for novations , and what combustion and disorder it may occasion in the contrary , it is so apparent , that it needs not to be represented . . whereas it is pretended that the lords and others of the clergy , will have prejudice by the old way , both as to their own proportion , and the proportion of the vassals , and that they are in another condition than formerly , by reason that their rents are impaired by valuations and ministers stipends , it is humbly conceived with all tenderness and respect to the reverend clergy , that whatever others for their own interest , do suggest under pretence of theirs . the lords of the clergy and others , will not decline to contribute , and be taxt for his majesties service , as the other estates , and as to the pretended way of paying taxation according to the valuations in these late times , they cannot be taxed in that way , because the rents of the bishops being for the most part in these times of usurpation , mortified to universities and other pious uses , they were not valued , nor lyable to cess and such like burdens ; it must then follow , that either they must be taxed in the old way , or else not at all as to the proportion of the clergie , it is designed by all the laws concerning taxations , and it is not higher than it was at any time , since taxations were granted to his majesties predecessors ; and it is to be observ'd in all acts of parliament concerning taxations . the lords of the clergie do in the first place , before the rest of the estates , make a chearful offer of the same proportion without any grudging , and though there needs no reason to be given for clear law and practice ; yet that the said proportion is defin'd , and settled upon good reason , it is obvious , seing the same is impos'd in order , both to their spirituality , consisting in tiths , and their temporality consisting in lands and others ; and it is known that the tiths are more than the fourth part of the rent of scotland : and temporalities and church-lands will extend to a considerable part of scotland , at least to a fourth part . the clergie having their benefices and living , not in property , as the other estates , but of his majesties immediat favour and grant , and for their lifetime ; so that it is not strange , that upon the considerations foresaid they pay'd such a proportion of the taxation ; the case is not altered upon the account of valuations and ministers stipends , that course for valuation of tiends , and augmentation of stipends being procured , and taken at the earnest desire of the reverend bishops and clergy ; so that it ought not to be represented , as being to their prejudice ; and de facto , the reverend bishops and m●nisters , have no prejudice by that course , by reason the bishops and ministers , and benefic'd persons ( who ought only to be looked upon as clergie ) are secur'd by divers provisions contained in the acts of parliament anent the valuation of tiths , and in special , that what they were in possession of actually and really the time of the submission , made by them , should remain with them in quantitate & qualitate , unpr●judged by any valuation , so that the valuation and augmentation of stipends being only in relation to , and affecting the spirituality and tiends ; the case neither is , nor can be altered as to the clergie , they being secured by the saids provisions , and the burden of augmentation of stipends , and prejudice by valuations , doth only ly upon the lords ; and titulars of erection , and tacks-men of tiths , as the case is not altered in relation to benefic'd persons ; so stipendiary ministers cannot be prejudg'd by the good old way , seing by an act of parliament ja. par. . they are freed and exempted of all taxations and impositions , the burden of the proportion of the clergie doth not ly upon them , but for the most part upon the vassals , and tacks-men against which they have by the law a present and summar way of relief , as to the lands and temporality of the clergie , they are the same , and in the same case as in time of former taxations ; and that the vassals of erection , or of church-men , should be in better case than formerly , as to the payment of taxation , it is contrary to law and reason , seing res transit cum onere & causa ; and that lay-men acquiring lands from church-men , should have more case of taxation , as to such lands , than other church-men had , when they possessed the same , is inconsistent with law , and with the respect and priviledges belonging to that sacred order . . whereas it is pretended , that since his majesties restitution , and the said act of parliament containing his promise and resolution , not to raise any more cess : a taxation hath been pay'd to the lords of session in the way of cess , that pretence is of no weight , it being considered that the said taxation is granted , not to his majesty , but for an honorary allowance to the lords of session ; and by an act of the same parliament , wherein his majesty declar'd that no more cess should be rais'd ; so that the said act being in the same parliament , and it being an exception from the said act , firmat regulam in non exceptis , and shuts the door as to the future , upon that manner of raising of impositions . . whatever a parliament may do as to the repelling of former laws and customes , a convention of estates ( though a meetting most eminent ) has not that legislative power : and albeit the commissioners from shires has power by their commission , to offer and condescend to a taxation ; yet they have not power to alter and take away the fundamental laws and customs of the kingdom , as to the manner of uplifting of taxations , being the birth-right of the people , and which cannot be taken away but by a law made in parliament . king james the sixth , parliament . the earl of gowrie having endeavoured treasonably to murder king james the sixth , he was forefaulted in the beginning of this parliament ; and after his death , his brother and posterity were disabled to succeed , and the name of ruth●●n a●olished ; as is to be seen in the first three un-printed acts of this parliament , and a publick day of thanksgiving is appointed by this act , which is yet constantly celebrated upon the of august , which was the day upon which the murder was to be committed . the malice of the fanaticks in those times is most remarkable , who pretend that he was unjustly forefaulted , albeit the depositions of the witnesses are yet extant , whereby the traiterous d●sign of having contriv'd , and accordingly attempted to kill that excellent king , is prov'd by his own relations , and many eminent witnesses of intire reputation . it is also observable , that witnesses of old , in processes before the parliament , were only led before the articles , and repeated in parliament . item , that the summons was still in latin , & sub testimonio magni sigilli , they were at the instance of the justices , and of the kings advocat ; and the summons in all such cases were still rais'd before the parliament did sit , for our parliaments sat very short time , and so they err who think that such processes can only be rais'd by a warrand from the articles , though that be ordinary now . and now likewise the summons is in scots , and under the signet only . the earl of gowrie being forefaulted , his lands are by this act annex'd to the crown ; and though by the former acts of annexation , lordships and baronies were only in general annexed ; yet here all the particular baronies of the lordship , and all tenements of the lordship are expressed , with all the pertinents thereto belonging , which are here specially enumerated , and amongst the pertinents , patronages are enumerated , which shews that patronages in our law , are comprehended under the word pertinents , which is also clear by the author of the book , call'd the parsons law. see more of this in the notes on act par. ja. . the regalities and heretable offices belonging to gowrie , are likewise supprest expresly , and the saids lands erected in a stewartry ; for a regality is properly the erection of lands holding of subjects ; and a stewartry is only in lands , which are the kings property . this act is explain'd in the act par. ja. . and that is the act related to in this statute . by this act , invading or pursuing any of his highness session , secret council , or officers , it being verifi'd that they were pursu'd , or invaded for doing his highness service , is declar'd punishable by death , and upon this act mr. james mitchel was hang'd for invading the bishop of saint andrews ; in which process it was upon debate found , that the pursuing and invading for doing his highness service , was sufficiently proven by presumptions , except the pannel could have condescended upon another reason which provockt him to the attempt , arising from private quarrel or grudge , and that because it is impossible to imagine that the design of the invader can be otherwise prov'n , that being an occult and latent act of the mind . by the civil law , the invading a counsellor was treason , for sayes the emperour , sunt pars corporis nostri , l. . c. ad l. jul. maj. it may be questioned from this act , : who are to be call'd the kings officers ? . if the invading them when they are out of the kingdom , or suspended , or when they are only nam'd , and not yet admitted to their place , will infer the punishment of this act. . if these words in the narrative of this statute , that they are oft quarrelled without any just cause , will excuse the invader , if he can show that he was truly wrong'd by that party , either in voting , or deciding against him , or otherwayes , scipio gentilis in his books , de conjurationibus adversus principes explains the l. . cod . ad l. jul . majest . and shews how far the invading of the kings counsellours is treason . sir francis bacons observes that an act of this tenour was made at the suggestion of the chancellor , in the reign of henry . because of the danger the chancellour was then in from the courtiours , drowning the envy of it in a general law ; and i am sure that was also our case , for our chancellour was in ill terms then with our nobility , but their conspiring was made a crime ; whereas with us invading is necessary . this act is explained in the act par. ja. . this act is formerly explain'd in the act par. ja. . this act discharging herring to be carried abroad before michaelmas , under the pain of confiscation , is now innovated by the priviledges granted to the fishing company , and that very justly , for the sooner herring be carryed abroad , they give the better price : and though there were not herring enough taken to serve the countrey the time of this act , which was the reason of the prohibition ; yet now there are , sufficiently for serving both the countrey and strangers . though the slaying salmond in forbidden times , be theft by this act , yet none has ever been pursu'd capitally therefore , but the same is only punish'd as a penal statute by an arbitrary punishment . the reason why the rivers of tweed and annand are excepted from this act , is , because the killing fish upon them prejudges only the english fishing : but after the union of the two kingdoms , this exception as to these two rivers , is also taken away by the act par. ja. . this act declaring the provocker and provocked in duels to be punishable by death , is explain'd , crim. pract . tit . duels : and since fighting duels is only declared death by this act , it appears that naked provocation is not capital ; but yet even the sending of cartals may be arbitrarly punished by the privy council : but fighting is capital , though no killing follow : and fighting by rencounter may be punished as a duel , though there was no formal cartal ; for by this law all single combats are declared punishable by death , vid. crim . pract . tit . duels : this act was renewed by a strict act of secret council , in anno . this act is explained in the act . par. ja. . by this act it is declared that the negligence of the kings officers , in pursuing or defending a cause , shall not prejudge the king : and therefor competent and omitted , is never received against the king , though it be against private parties ; and by this act it would appear that the king may propone a nullity of a decreet obtained against him , even in foro before the lords of session , by way of exception or suspension , without a formal reduction ; but yet prescription runs against the king , notwithstanding that it may be alleadged , that by this act he cannot be prejudged by the negligence of his officers , in not pursuing , since prescription is a general remedy introduced for the final quiet , both of king and people ; and as to heretage it is introduced by an act posteriour to this act , wherein there is no exception made in favours of the king ; but the act introducing prescription of moveables is prior to this act , and so it may be the more doubted , whether prescription of moveables runs against the king , since by this posteriour act it is declared , that the negligence of his officers in not pursuing , shall not prejudge him , nor is there so great hazard to the lieges in their moveables , as in their heritage . the transporting or in-bringing of forbidden or un ▪ customed goods , that is to say , goods that should pay custom , without paying custom is punishable , not only by forefaulture of the goods , but by confiscation of the in-bringers whole goods moveable ; albeit by the civil law , ea res tantum in commissum cadit quam quis non est professus ; by which law the naked entry , or sola possessio , was sufficient to defend against the forefaulture & imputandum est publicano qui non exegerit , perez . tit . c. de vect . num . . both by that law and ours , the customers may recover the goods un-entered , even from singular successors who have bought the same , bona fide , for a competent price ; and in that law , error excus'd from confiscation : but in that case it exacted double custom , perez , ibid. i have not observed any mans moveables escheated upon this act. this act fining such as will not communicat once a year , when he is thereto desired by his pastor , is ill observed , but not in desuetude , and therefore was renewed by proclamation in january . observ. that the having rancour against their neighbour , is declar'd no relevant excuse ; and justly , because it is a fault , and so should be no defence , & argumento hujus legis , a fanatick having prejudice at his minister , even though reasonable , is no legal defence , for he should still hear . observ. . though this act say , that no other excuse whatsoever shall defend ; yet certainly inability to travel , madness , &c. will defend , and general words are still to be understood , in subjecto capaci . this act is explain'd , crim . pract . tit . heresie . this act is explained , crim . pract . tit . beggars and vagabonds . this act is explained , crim . pract . tit . adultery . this act is but a temporary commission . this act against slaughter of wild-fowl , is renewed by an act of privy council , june . . years , whereby masters of the game are appointed for putting these acts in execution ; though by this act the sheriffs , stewarts , and the kings ordinary magistrats , have a particular commission of justiciary for this effect ; and it was questioned in the time , how the council could take away a right establisht in them by the parliament ? by this act , the killing of mure pouts is discharg'd before the third of july , and partridge pouts before the eight of september ; and by that proclamation , mure pouts are allow'd to be kill'd after the first of july , and heath pouts after the first of august , and partridge and quail after the first of september ; and whereas by the act par. ja. . no partridges , plovers , black-cocks , &c. are to be kill'd till august ; this proclamation allows them to be killed from the first of july . this act ordaining all english cloath to be seal'd by a seal , the form whereof is here condescended on , was thought to have been in desuetude : but now found not to be so in anno . at which time it was found , that the customers might enter the shops , and seal or confiscat what was not so seal'd . this sealing was formerly appointed by the act par. ja. . this act appoints , that no letters of horning shall be direct against persons dwelling on the other side of dee , upon shorter space than fifteen dayes ; which act was found only to be extended to actions before the privy council , but not to charges before any other court ; because the narrative of this act sayes , that severals of the lieges were drawn in inconveniencies by charges before his majesty and his council ; though the rubrick and statutory part be general ; and though the reason , whereupon this is inferred , extends to all charges , as well as charges before the council . such as invade any of his majesties subjects within a mile to the place of his highness residence , or whoever resort thereto , armed with jacks , or corslets under their coats , are to be imprisoned for a year , and punishable by an arbitrary fine . observ. that the attrocity of the crime is much hightned from the circumstance of place , as well as time ; as is likewise clear by the act par. ja. . it may be doubted , whether this act can be extended against such as invade strangers ? since the act sayes only , such as invade subjects ; since the invading of strangers is more attrocious in it self , than the invading of subjects , the crime being there aggredged by the breach of hospitality . it may be likewise doubted , how long a time of residence by the king makes the invaders punishable ? and it would appear that if the invasion be not within a mile of that which is known to be the place of the kings ordinary residence , that then it must be proven , that the invader did reside there for the time . by this act sheriff-courts should be kept in the middle of the shire , for the ease of the people ; but this is not observ'd . of old pledges were taken in the borders , that is to say , one man entered himself prisoner for another , and bound himself for his appearance , person for person ; but now the peace is secured by sureties or cautioners , who , if they present not the person for whom they are bound , that very hour they forefault their bonds , nor is the presenting the prisoner afterwards sufficient ; which speciality has been found necessary in border sureties . these pledges were distributed of old amongst the nobility and gentry , who were to be answerable for them , because we wanted then many and sure prisons ; and because they were unwilling to receive these pledges ; therefore this act obliges them to receive , and keep such pledges , under the pain of two thousand merks . it may be doubted ; if pledges may not be taken in other crimes as well , as these relating to the borders and highlands , argumento hujus legis , since this may tend much to the quieting of the countrey ; and if the nobility may not be forc'd to keep these , for prisons may be often so full , that prisoners cannot otherwayes be kept ; and by many acts of secret council , the nobility was before this statute oblig'd to keep pledges . by the common law , obsides or pledges could only be granted , ex causa publica , sed non ex privata , bald. in l. ob aes , c. de obl . & act , but it seems that pledges , though for criminal causes , could not bind themselves to corporal punishment , quia nemo est dominus suorum membrorum licet aliter obtineat de consuetudine , ob bonum publicum , bald. in tit . de pace constant. § . damna in finè . king james the sixth , parliament . there have been two commissions granted for considering of an union betwixt this kingdom and england , one in this year . and another in anno . betwixt which there are only these two differences ; that in this act the names of the commissioners are set down , and they had no other commission but the act of parliament ; but in the other commission . the persons were nominated by his majesty , under his great seal ; the nomination being refer'd to the king by that act of parliament . the second difference is , that in this commission . their power is limited with this provision , viz. not derogating any wayes from any fundamental laws , ancient priviledges , offices , rights , dignities , and liberties of this kingdom : but the other has no such exception ; and yet it may be doubted , whether by vertue of the last commission , those who were commissionated , could have derogated by their treaty , from any of our fundamental laws , ancient priviledges , offices and dignities ? that the parliament of scotland could not consent to an union of parliaments , though all its members were admitted , without at least consulting the shires and burghs , which the respective members of parliament represent , may be thus urg'd ; all nations considering the frailty of their representatives , and that some ages and generations do too easily quite , what is fit and necessary for securing their liberty ; have therefore thought fit to declare some fundamentals to be above the reach of their power ; and that parliaments cannot overturn fundamentals , seems clear , not only , because these were not fundamentals , if they could be overturn'd , that being the true difference betwixt fundamental and other laws ; but if a parliament should enslave their kingdom to a forraigner , the people might by a subsequent election disown the perfidie ; or if two of three estates should by plurality exclude the third , surely their exclusion would be null ; and that the constitution of a parliament is a fundamental , appears not only from the nature and weight of that priviledge ; but likewise from this commission , anno . wherein it is call'd fundamental , and looked upon as unalterable ; nor is it imaginable , how the parliament cannot invert the constitution of one estate , and yet can invert and alter the constitution of the whole : and by our statutes it is declared treason , to endeavour to lessen the power of the three estates of parliament ; and it cannot be said , that their power is not lessened , when they cannot make one act or statute by their own authority , or when others have more interest in , and influence upon their determinations , than they themselves have ; and when , from being absolute , they become subject to another ; and a parliament has but some such power over the people , as the magistrats and council have over a burgh ; for the parliament is but the great council of the people and kingdom ; and it is most certain , that the magistrats and council of a city or town , could not consent to incorporat with another town , and consent to the eversion of their own , without the full consent of their people whom they govern. commissioners for shires and burghs , are the same with us that procuratores universitatis are in the civil law ; and procurators etiam cum libera , could not alienat the rights of their constituents , without a special mandat for that effect , l. procuratori ff . de procurat . nor can they exchange nor transact upon what belongs to their constituents ( which is our case exactly ) l. mandato generali ff . de procurat . and if we consider the commission whereby they sit in parliament , we will find it does only empower them to represent in parliament their constituents in every thing , which shall be advantagious for them : from which commissions i argue , first , that this is but mandatum generale ; for it empowers them only in general terms and bears no warrand to treat with england , of an union of m●onarchies or parliaments , & generali mandato etiam cum libera ea veniunt quae sunt de consuetudine , l. quod s●no l. § . qui assidua ff . de aedidit . edict . & non comprehendit ea quae sunt usui regionis repugnantia ; it empowers not such as have it to do things extraordinary , and which , it is probable , the constituents would not allow , l. ut si filius ff . de donationibus , l. indebitum ff . decondict indebit & cap. generali de reg . jur . in sexto ; but in such cases , as lawyers observe , and reason teaches , the constituent is to be consulted , and a special mandat is required ; as is clear by the laws above-cited . our commissioners for shires and burghs , sit by vertue of commissions , and as they need a warrand to sit , so cannot they exceed it when they sit , and are not arbitrary ; nor could the parliament of scotland , as now constituted , resign their parliamentary power over to the council ; nor does their commission empower them to ordain , that there shall be no future parliaments ; and when they exceed their commissions , they are no more members of parliament , and therefore what they do , is null . . by these commissions , the commissioners for shires and burghs , are only empowered to represent them in the parliament of scotland ; which presupposeth that there must be a parliament , and consequently that they cannot exstinguish , or innovat the constitution of the parliament of scotland ; for how can they represent the shires and burghs in a parliament , which is not ; and certainly the parliament of scotland can be said to be no more , when they make but a part of the parliament of great-britain ; for scotland cannot be called britain , nor a part of a parliament cannot be called a parliament , no more than the commissioners for the north of scotland , can be called the parliament of scotland ; but how our commissioners could sit in the parliament of great-britain , by vertue of their former commissions , i see not ? and therefore it seems to be both fit and just , that the commissioners of shires and burrows should be sent home to their respective constituents , to crave their advice and consent , in so weighty and comprehensive an affair , nam quod omnes tangit ab omnibus debet approbari . it may be likewise contended that this great determination of uniting both parliaments , requires at least the full assent of the members of both parliaments ; and that though the parliament had power to alter its own fundamentals ; yet if any one dissent , the union of both parliaments must stop ; for both in law and reason , the power of making laws , and the right to retain or resign priviledges , are two different things ; the one is a legislative power , which is regulated by plurality of voices ; the other is founded upon dominion or property , and is not subject to suffrage , no more than other properties are ; for as every member has right , so his right cannot be taken away from him without his own consent ; though all these who are in the society with him should renounce what is theirs , in re pari melior est conditio prohibentis , & in re communi nemo dominorum jure quicquam sacere potest invito altero l. sabinus , ait . ff . com . divid . thus if the members of a society were by law free from impositions , though all the society , save one , should submit to pay , yet plurality would not in that case oblige the refuser , and if all who had interest in a commonty , should condescend to resign their right therein in favours of another , yet if one were refractory , that one would not be prejudged by the consent of all the remanent partners ; whence it seems consequential , that as the parliament cannot debar any member from sitting in parliament , so that if one member by advice from his constituents , oppose the union of parliaments , it could not be carry'd by plurality ; for what ever reason militats why plurality should not oversway in the one , does likewise militat in the other ; and if the right of every member is given as the cause why , he cannot be debar'd from sitting ; why should not the same right empower him much more to stop the total alteration of the parliament ? even as a man cannot be debar'd from using a commonty . it will likewise operat , that the commonty cannot be altered in its nature , without his consent ; and the right of these who sit in parliament , is as much prejudg'd , by extinguishing the being of a parliament , as by debarring them from sitting , or voicing in it . our shires and burghs have right to be represented in no parliament , save that of scotland ; and therefore if the commissioners had power to overturn the being of the parliament of scotland , they could have debar'd our shires and burghs from being re-presented in the parliament of great-britain , seing they could pretend no right to sit there ; so that it seems , either plurality of voices may exclude any particular member , and may retrinch that member : or else by the same reason , no plurality can establish an vnion of both parliaments ; and if our parliament could by plurality of voices , overturn the fundamentals , and destroy the very being of our parliament ; how shall it be possible to secure our parliament , when it is joyn'd in with the parliament of england , into one parliament of great-britain , so as that the parliament of great-britain , may not by the plurality of voices , likewise overturn any fundamentals that shall be condescended on ; but that the fundamental constitution , and priviledges of parliament , are not subject to suffrage , and cannot be abrogated , nor innovated , without the universal consent of all its members and commissioners , may be clear likewise from many instances , for it is most certain that the parliament , as now constitute , could not by any statute ordain , that there should be no more parliaments , or resign over their parliamentary power in the hands of the council ; nor could they transmit the power they possess , in favours of their own heirs , or exclude any of the three estates ; and sure if fundamentals be not subject to plurality of voices ; the power of uniting of parliaments , and suppressing of monarchies is not , for these comprehend all other priviledges and fundamentals ; and if the priviledges of one of the three estates cannot be altered by plurality ; i see not how the priviledges of all the three can be ; and we have seen parliaments in the last age do such irregular things , that the succeeding parliaments have been forc'd , not only to abrogat their laws , but even to find that they had exceeded their power , which implyes that it was not arbitrary . king iames the sixth , parl. . this act declares his majesties royal prerogative by way of acknowledgement , without any new concession in these words , they all in a voluntar , humble , faithful , and united heart , acknowledge his majesties soveraign authority , princely power , royal prerogative , and priviledge of his crown , over all estates , persons and causes ; and confirms to his majesty his imperial power , and whatever soveraign authority any of his predecessors had , and casses annuls and abrogates all , any way done to the prejudice of his authority any manner o● way ; so that it seems that all former acts of parliament , lessening any way the royal power , are hereby abrogated . by this act likewise , the estates of parliament promise to maintain , defend , and advance the life , honour , soveraign authority , prerogative royal , and priviledge of his crown , with their lives , lands and goods , to the outmost of their power : but because this act was too general ; therefore by the , , , and . acts of the first parliament , charles the second , his majesties royal prerogatives in the choice of the officers of state , counsellours and judges , in calling and dissolving of parliaments , and making of laws , in making of peace and war , and ordering the militia , &c. are expresly acknowledged and ratified : and by the second act of the second session , of the first parliament , all endeavours to restrain his royal person , to depose or suspend him , and all endeavours tending thereto , are declared treasonable ; and all stirring up of the people , to the hatred or dis●ike of his royal prerogative , are punishable in manner therein mentioned : and by the act of the sess. of the par. ch. . his majesty is declared by his prerogative royal , to have the only power of ordering all trade with forraigners . nota , this is the first act that mentions the word prerogative , which was formerly call'd the priviledge of the crown ; and therefore this act mentions both the old and the new words , by asserting his majesties prerogative , and priviledge of the crown . by this act bishops are not so much restored to their offices , as it is declar'd that it was never mean'd by his majesty , that the estate of bishops was to be suppressed : their sitting in parliament , being by this act declar'd , to be one of the fundamentals of the nation : but by this act , their benefices are only restored to them , which were much impaired : and though by the act , par. ja. . general and synodal assemblies , and presbytries , are thereby ratifi'd ; yet episcopacy is not thereby abrogated expresly . by this act , the king is declar'd to be soveraign monarch , absolute prince , judge , and governour , over all persons , estates , and causes , both spiritual and temporal , within this realm : and by the act , par. ch. . it is asserted and declared , that his majesty hath the supream authority , and supremacy over all persons and in all causes ecclesiastical within this his kingdom , and that by vertue thereof , the ordering and disposal of the external government and policy of the church , doth properly belong to his majesty , and his successors , as an inherent right to the crown : and that his majesty and his successors , may settle , enact , and emit such constitutions , acts , and orders , concerning the administration of the external government of the church , and the persons employed in the same , and concerning all ecclesiastical meetings therein , as they in their royal wisdom shall think fit . there having been great debates about the wording this part of the act ; some members of parliament , pressing to have it without any restriction , and others , though very loyal , pressing it might be restricted to the calling and dissolving of ecclesiastick meetings , and external government only : lightoun bishop of dumblane , was at last trusted by the commissioner , who has drawn it very cautiously for the church ; though our blinded fanaticks think otherwise ; for , first , it is founded upon the former old statute ; and after repeating that statute , it is said , it is therefore enacted , to shew that it was not design'd , that this act should exceed the former and old supremacy . . the prerogative is restricted to government ; and not only so , but to the external government ; and even as to this external government , the king has only the ordering , and d●sposal of it ; and the administration of it by the next clause ; so that the doctrine of the church , nor the internal part of the government falls not at all under the kings power , by vertue of his supremacy ; that is to say , he can neither admit , nor depose , nor administrat sacraments ; though he may discharge a bishop or minister to preach ; and this is that which was allow'd by the primitive church to their emperours : thus constantine , that great and first christian emperour , is approv'd by all the fathers , for setling thus the marches , betwixt the ecclesiastick and civil jurisdiction , euseb. lib. . de vit . constant. vos quidem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; eorum quae intus in ecclesia sunt agenda ego vero 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eorum quae extra sunt episcopus sum a deo constitutus ; and that the administration of the sacraments , and these other things quae intus sunt , belong not to the civil magistrat , is acknowledg'd by the act par. ja. . wherein it is acknowledg'd , that the jurisdiction of the kirk consists in the preaching of the word , the correction of manners , and the administration of the sacraments : in which act , three things are observable ; . that the act tells they derive their jurisdiction from the king , which is as to the external part ; for no man can think they derive their power of administrating the sacraments from the king ; though from him they derive the faculty of having the external face of a church , without which , that could not be enjoy'd . . though the church has the correction of manners , yet the king may regulat these , as we see in the very next act , for keeping the sabbath ; and which seems to have been made the next act to this , for to clear the meaning of that part of this act. . though the preaching of the word is declar'd to be a part of the ecclesiastick jurisdiction ; yet that relates only to the matters of faith , to be preach'd ; as to which , ministers are to be judg'd by church judicatures ; but if they preach what encroaches on the secular power , they are to be judg'd by the king , and those deriving power from him , conform to the act par. ja. . this supremacy in cases ecclesiastick seems to have been ever the proper right of secular princes ; and haedeus the great canonist . repet . in cap. novit . de jud . num . though a roman catholick does acknowledge , that nemini dubium est quin ▪ in primitiva ecclesia de rebus & personis ecclesiasticis jus dixerint ; which will very clearly appear to any who will read the first thirteen titles , of the first book of justinians codex ; in which he ordains amongst other things , vim legum obtinere ecclesiasticos canones a quatuor synodis nicena constantinopolitana prima ephesina prima & chalcedonensi expositos & confirmatos ; and i find that the supremacy is in england thus established , under the reign of henry the eighth , that the king and his heirs and successors , should be taken and accepted as the only supream head on earth , of the church of england , and should have and enjoy , annexed to the imperial crown of that realm , as well the title and stile thereof , as all honours , dignities , preheminencies , jurisdictions , &c. to the said dignity of supream head belonging . in this act the bishops are not restored to benefices , that are not of cure , but to these which have a particular cure ; and therefore his majesty confirms all dispositions , or other rights made of abbacies , priories , or other benefices , not being bishopricks made or confi●med at , or before july . they paying the greslum appointed by that act , to the bishop within year and day . there is likewise reserved by this act , all feus lawfully set and confirmed before the act of annexation , which was in the year foresaid ; and all patronages of kirks ( pertaining formerly to them ) disponed by the lawful titular ; and the kings majesty , and ratifi'd in parliament , which extends , as well to the patronages of mensal kirks , as of kirks which are of the bishops presentation , march . . and albeit regulariter confirmatio nihil novi juris tribuit ; yet hoc casu supplet omnes alios desectus ; for by the former practique it is found , that alienations of patronages , even of mensal kirks , are valide , if made as said is , by the lawful titular ; though not made by him , with the consent of the most part of the chapter ; for this act requires that it be made by the lawful titular , but there is no mention therein of the consent of the chapter . by the act of annexation in anno . the whole superiorities of all kirk-lands being annexed to the crown , it was therefore necessary that by this act , they should have been restored , but they are not restored expresly to these ; but it is alleadged that they have right to them by the act par. ch. . but yet in that act it is only said , that what is statute anent the kings being superior to vassals of erections , shall be but prejudice to bishops and their chapters , of their rights to their superiorities , which is only a reservation , but is no express restitution of them to these superiorities . this act anent the dilapidation of bishopricks , is formerly explained in the general nature of dilapidations , in the act par. ja. . and act par. ja. . and as to what concerns chapters , it shall be explained in the act parliament ja. . when a person is forefaulted , he may be in law restored two wayes , viz. either by way of justice , when the sentence of forefaulture is found to be unjust : or by way of grace , when the sentence is just ; but the person forefaulted , or his posterity is restored ; which distinction we have from the civil law , that allows a distinction , inter restitutionem per modum justitiae & per modum gratiae . the difference betwixt these restitutions by this act of parliament , is , that the person that is restored by way of grace , has not by his restitution , right to any part of the forefaulted lands , and others disponed in favours of third parties : but such as are restored by way of justice , will thereby have right to their own lands , though dispon'd to third parties , for onerous causes , as was found in the disposition of the lands of mugdock , formerly belonging to the marquess of montrose , and disponed by the parliament for onerous causes to argile : as also , these who are restored by way of justice , will have right even to repeat the sums of money , which formerly belonged to them , though assigned to third parties for onerous causes : and albeit those sums were first ordained to be pay'd in to the thesaurie , and precepts only drawn upon the thesaurie , in favours of these third parties , as was found in the earl of branfords case against the earl of callender and others ; though this restitution of money seems much harder than that of lands , since money is res sungibilis : and singular successors are not oblig'd to know to whom the same belonged . a process having also been intented against the earl of argile in the parliament . for reducing his heretable offices , as granted since the act par. ja. . it was answered , that these heretable offices were dispon'd to the family before that act ; and it being reply'd , that the first right was extinguished by the forefaulture , and the restitution being only by way of grace , was to take effect only from the date ; nor was it more sufficient against the king , than if the king had granted them originally at that time ; in which case they would have been quarrallable on that act ; and yet de praxi , the king restores to titles of honour , as of the first date . by the act par. . ja. . the king succeeding to lands by forefaulture , has right to whatever the forefaulted person was five years in possession of before the forefaulture , because it is presumed , that the forefaulted person will abstract the evidents ; and therefore upon the same presumption , it is likewise appointed by this act , that the production of extracts out of the register , shall satisfie the production in improbations against the king in forefaulted lands ; whereas other singular successors rights will be improven , if the originals be not produced , vide notata upon the said act . the excellent narrative of this act is copied out of l. . § . . ff . de justitia & jure . this act is explained in the act par. ja. . which is that act that is here rescinded , though it be not here cited . by this act it is appointed , that where there is no arrable ground in the paroch , the minister shall have sixteen soums grass in place of the four aikers , which are allow'd to him for his gleib : and by the act par. sess. ch. . it is ordain'd , that the minister shall have grass for one horse and two kine , over and above his gleib ; and therefore it was doubted , if where the former gleib did extend to more than would be grass for two kine and an horse , above the four aikers , the ministers might seek that grass , and the lords found they might ; albeit it seems that if this were just , the minister might also seek grass for a horse , and two kine , even where he had sixteen soums grass , by this act , february . . parochioners of banchry contra their minister . this act is but temporary . this act appointing letters of horning to pass upon sheriff , stewart , and baillies decreet , without a decreet conform , before the lords , is explain'd in the act. par. ja. . and because these acts gave only warrand for raising letters of horning upon such decreets ; therefore warrand is likewise given for raising letters of poynding upon all such decreets , by the act par. ch. . which shews that express acts are us'd even where there is paritas rationis ; and they are useful , ob majorem evidentiam . by this act all persons are discharg'd from receiving any colziars , salters , or coal-bearers , without sufficient testimonials from their masters ; but though this act appoints the coalȝiars , coal-bearers , and salters , to be punished as thieves ; yet none ever died upon this act : but the ordinary action , both against them and their resetters , is before the privy council ; and the act only says , they shall be repute as thieves , and punished in their bodies . this act is extended to drawers of water in coal-heughs : and the fees of coalȝiars are discharged to exceed twenty merks by the act sess. par. ch. . though this act only discharges all persons within the kingdom to hire other mens coalȝiars , &c. yet it was justly thought , that the prohibition of it extended to all such as had right to coal or salt here by tack or otherwise , though themselves dwell not within the kingdom , and it seems that the council might hinder forraigners to carry away our coalȝiars , and salters , though they cannot punish them for so doing . by this act likewise , a power and commission is given to all masters and owners of coal-heughs and panns , to apprehend all vagabonds and sturdie beggars , and put them to labour ; and it has been resolved , that tacks-men of coal-heughs and pans , has the same priviledge , though they cannot properly be call'd masters and owners , except the words be allow'd to be extended to temporary rights : but since this priviledge is chiefly real , and not personal , & in rem scriptum ; therefore it seem● reasonable , that whoever have the power of the coal-heughs , should likewise have this priviledge , which is granted upon their account . the council thought argumento hujus legis , that masters of one manufactory , could not have action against others of the same manufactory , for resetting their servant , who had run away from them , and to whom they had learn'd their trade : and yet i have seen action granted in the council against heretors , who had entized away other mens fishers , and the parity of reason seems to reach to such as work in lead-mines . this condition of coalȝiars and salters by our law , makes them to be like to the addicti glebae & adscriptitii , mentioned in the common law. this act is explain'd formerly in the act par. ja. . by this act men are discharg'd to lay lint in their own lochs , since thereby fish is destroy'd , and the water becomes noxious to neighbours ; and thus property is in many things restricted , for the good of the common-wealth ; there being nothing more consequential to property than that , quilibet potest jure suo uti modo principaliter hoc non faciat in aemulationem alterius : but it seems that only the parliament can restrain this exercise of property , else this act had been needless : and therefore when the laird of haining offered to drain his own loch ; it was justly debated , whether the fishers upon tweed could hinder him , because the water that run in from the loch to tweed , prejudged their fishings : but that which made the case there more debateable , was , that publick rivers and salmond fishings , are of their own nature priviledg'd . it may be likewise debated , whether paritas rationis should extend this act , against such as lay stinking hides , or other such noysom things in their loches or burns ; and the laying any such things in the loch of lochlevin , is specially declar'd punishable by the act par. ch. . vide quaestiones medico legales pauli zacchej , lib. . tit. . where he condemns what is here discharg'd as noxious , both to man and beast . by this act the vassals who hold blench of his majesty , are only lyable in their blench-duties , if they be required allanerly ; and these blench-duties cannot be converted into money by the exchequer . observ. . it is declared by this act that blench-duties are not to be any burden , or yearly duty , by their own nature , but only an acknowledgement , or recognizance , if they be requir'd allanerly : and yet by our law , in lands holding blench of a subject , we thus distinguish , viz. either the charter bears , si petatur tantum , and then the blench-duty cannot be required beyond the year , in which it was due : or else the blench-charter bears not this clause ; and then either the blench duties are such as are of a yearly growth , as wax , pepper , &c. and these can only be crav'd within the year : or else they are things of some intrinsick value , and not of an annual growth ; such as silver , spurs , &c. and they may be pursued for at any time within fourty years : nor can any annual prestations , such as carriages , be acclaimed , after elapsing of the respective years , wherein they were due by the tack , or otherwayes , january penult . but though a vassals charter , who holds of the king , bear , si petatur tantum ; yet the exchequer by an act , does tax the price , and pursue for these , and for annual growths , albeit they have not been crav'd within the year , for which i can give no other reason , but that the negligence of the kings officers cannot prejudge the king : but how can the act of exchequer alter the nature of the holding , which is an express contract betwixt the king and his vassals ; and it may be alleadged , that by act of exchequer , it may be as well declar'd that prescription shall not run against the king , for this is a species of prescription ; but especially since it is declar'd by this act , that they shall not pay , notwithstanding of any act of exchequer past , or to come : nor does the act anent the negligence of the kings officers , abrogat this act , as it ought to have done . the advocats protestation in the end of this act seems to be in-intelligible ; for how can blench-duties be conform to the kings estate and dignity : some interpret this act , as if it only prohibited the conversion of the blench-duty into money , in the body of the charter ; but does not hinder the exchequers valuing of it : others to reconcile the present practice with this act , make a distinction betwixt holdings in blanco , and in alba firma ; as if the first being an inconsiderable duty , as a rose , or a penny , may not be converted to money ; but the other affording some profit , such as gilt-spurs , gloves , a pound of pepper , &c. may be valued by the exchequer . this act quadrats with tit. . lib. . cod. theodos. this act is formerly explain'd in the act par. . ja. . by this act , all such as convocat ▪ or assemble themselves within burgh , without licence of the provost and baillies , are declar'd to be guilty of faction and sedition ; and it has been doubted , whether keepers of conventicles within burgh may be punishable by this act ; for though there be a specifick punishment appointed for conventicles ; yet since this and o●her laws , by which conventicles may be punished , in specifick and particular cases , are not abrogated expresly : it is therefore alleadged that they are not abrogated , conform to the general rule set down in the act par. . ja. . observ. . it may be doubted whether , since this act runs in the general against convocations within burgh , if this act should not as well extend to burghs of barony , and burghs of regality , as to burghs royal , since the word burgh comprehends all ; and the reason inductive of this act , viz. the quenching convocations extends likewise to all ; and when the parliament designed to extend their acts only to burghs royal , they were particularly exprest , as is to be seen in the immediat foregoing act : and albeit it may be urg'd , that this act speaks of provost and baillies , yet this must be interpreted applicando singula singulis ; for there are many burghs royal , as well as burghs of regality and barony , that want provosts . observ. . that though this act ordains only such as obey not their magistrates and officers , to be fined ; yet if the inhabitants of any town refuse to obey any officers in the kings name , such as captains , &c. they may be fined . observ. . this act appoints that it shall be proclaim'd at all the mercat crosses of the saids burghs ; albeit by the act par. ja. . all acts of parliament are only to be published at the mercat cross of edinburgh ; but this act being posterior , and special , derogats from that general law ; and this was specially appointed , because of the special interest of the burrows . observ. . it is observable that this act proposes no punishment for towns , where the magistrats do not their duty to oppose tumults against the government ; yet the town of lanerk was fin'd for not pursuing those who burnt the test at their cross , anno . and privat burgesses pay a proportion of such fines , though they were not required by their magistrates , because it is their duty to concur when they see such tumults ; and magistrats are oftimes unable to require concurrence . the lands of huntingtoun and strabrand are dissolved to be set in blench farm , in favours of the earl of montrose ; and it was necessary that there should be a particular warrand for setting the lands in blench-farms ; because by the act par. . ja. . the annext property can only be dissolved , for setting lands in feu-farm , vid. observ . on that act. it is likewise observable by this act , that because this dissolution was to be made in favours of the earl of montrose , then commissioner . it is mentioned that there is a particular warrand for dissolving the same . king james the sixth , parliament . this act against sayers and wilful hearers of mass , is explain'd , crim . pract . tit . heresie . nota , by this act the resetters of such are fineable , as non-communicants ; and the act by which these are fined , is not here cited , but it is the act par. ja. . this act against the users of false weights and measures , whose whole goods are to be confiscated ; is explain'd , crim . pract . tit . falshood . this act is explain'd , crim . pract . tit . theft . this act empowers the bishop of saint-andrews to choose seven within his diocie , to be his constant chapter ; which was formerly resolved upon by the act par. ja. . though the power of choosing them was not given to that bishop expresly : but thereafter by the act par. ja. . the benefices whose incumbents are to make up that chapter , are particularly condescended on in that act. king james sixth , parliament . such as sent pedagogues abroad with their children , without a testificat from the bishop of the diocie , where the pedagogue lately made his residence , are fineable by this act ; and though this act is thought only to strick against children of popish parents ; yet it is general , and stricks against all his majesties subjects , of what religion or opinion soever ; and though they use to call these governours , and not pedagogues : yet that will not defend against this act , for pedagogue was the only term then in use . this act stricks only against the children of popish parents , who are hereby ordain'd to find caution to the lords of privy council , that they shall not intertain their children abroad , when they know them to be popishly inclined ; and by vertue of this act , the lord semple and others , were oblig'd in anno . to recal their children out of doway ; and this act was renewed by proclamation of council , january . by this act it is ordain'd that such as are excommunicated , for not professing the true religion , shall neither directly , nor indirectly possess their estates ; and by vertue of this act , it was found upon the of june . that those excommunicated persons , are not so much as bona fide possessores ; but that by vertue of this act , they are oblig'd to refound all their own bygone rents , possessed by them before citation or sentence , they only getting defalcation of seed , t●ends , and servants fees : which are ordinarly defalked in the computation of multures , and all other intromissions . in time of popery , every bishop had his own official , or commissar ; but in the year . queen mary by a signature , superscrived with her own hand , did institute this court at edinburgh , appointing four commissars to sit there , and to judge in divorces , and to reduce the decreets of inferiour commissars , which is ratified in parliament . . by which also they are appointed to judge in all actions concerning benefices granted by the queen . they were at first nominated by the queen , and were called , judices reg●i ; but after her demission , they were nominated by the lords of session , as is clear by the books of sederunt : and even in this act , the present commissars were to continue , they getting testimonials of their sufficiency from the lords of the session , and severals of them were at once lords of the session and commissars , as appears by the books of sederunt ; upon the restitution of bishops , the commissars who then were , did submit ; and this act seems to have proceeded upon a submission betwixt the bishops and commissars , the of june , the day before the parliament sat down , whereupon decreet was pronounced the of june , containing the foresaid reservation of the commissars offices , and in the case of the new provisions , the commissars are the only submitters ; and yet there are annuities decerned to the clerk , to the former of testaments , quot-masters and others ; and there is a form prescrived anent the procedure in divorcements , betwixt the parties in other commissariots , who are not worth a certain sum , which hath no foundation in the act , nor seems to be seconded by practice ; the decreet is registrated , january . . relative to the decreet , wherein the arch-bishops and bishops of galloway and orknay are subscrivers for themselves , and taking burden for the remnant bishops , and their successors , there is a contract the of november . and march . . entered into amongst the bishops ▪ for the relief of the arch-bishops , or either of them , for payment of their respective proportions to the arch-bishop , who shall happen to be distressed for the sallary , the arch-bishops by the contract , being bound conjunctly and severally to the commissars , the whole proportion of relief due by glasgow to saint-andrews , is the double of the contribution to the lords , and sallary due to the two youngest commissars , and the relief due by saint-andrews to glasgow , is the double of his contribution , and the sallary due by him to the two eldest commissars : by which it appears , that before this decreet , the commissars had sallaries ; the obligement in favours of the members of court , of the commissariot of edinburgh , whereby the bishops are obliged to compel the members of their court , to pay certain sums to the members of the court of edinburgh , during their lifetime , is not renewed in the contract : in this contract the obligements upon the part of the commissars ; are general , relative to their duty to their superiours , and fidelity in administration of justice , according to the practique and injunctions , the observation of the decreet arbitral , and articles , by which it is ruled , subscriv'd by arbiters and overs-men , which is not extant ; there is no penalty adjected , neither are the commissars subscriving . the commissars and many of the bishops being dead , who were alive the time of the decreet arbitral , the bishops especially ; the succeeding bishops refused to pay the sallary to the succeeding commissars ; whereupon they pursued john , then arch-bishop of saint andrews , who ▪ the time of the decreet and contract , was arch-bishop of glasgow , and james arch-bishop of glasgow , who then was bishop of orknay , as the only two alive , who were burden-takers by the submission for the rest , and decreet followed , february . . against the arch-bishop of saint-andrews , who , the time of the contract , was arch-bishop of glasgow , and was bound conjunctly and severally with saint-andrews ; the arch-bishop for his relief upon the contract , being distressed upon the decreet , pursued adam bishop of dumblain , who was created bishop since the contract , and thereupon defended himself , as free of the obligement of relief : as likewise , that the sallary was not due to the then commissars , it being due to their predecessors , the submitters allanerly , which was repell'd , and the bishop decerned , february . eodem . in respect the charge and pains was perpetual upon the commissars part , and the benefite perpetual to the bishops , and they having the confirmation of the great testaments ; and the word allanerly was found only to exclude the heirs of the then commissars , but not their successors in office ; the point being clear'd as said is , the commissars thought it more just that every bishop should be lyable for his own part ; and therefore all the bishops are pursued , wherein the same defences are again repell'd , and they decerned , march . eodem : and the . of july . there is a new decreet obtained in favours of the commissars and their successors against the bishops and their successors , containing a declarator , that it was a constant fee , payable in all time coming , this was in absence ; the decreet against saint-andrews , dated the of february . is not extant , unless in the register ; but it is narrated , and founded upon in the decreet , at the instance of saint-andrews against dumblain ; upon the decreet in march against the bishops , there are letters rais'd , dated the last of march , givand warrand to charge the bishops , to pay their proportion of the sallary , and to find burgesses of edinburgh cautioners , within fifteen dayes ; that in all time coming , they shall pay their proportions , conform to a deliverance of the lords , shown to them , founded upon the damnage that the commissars would sustain in evacuating their sallaries , by charging and denuncing the bishops yearly , in the several remotest corners of the kingdom ; the deliverance is not extant . there are other letters directed against them the first of april . for payment only ; so that both the remedies are used : there are likewise letters directed for finding a sufficient burges cautioner , dated the sixteenth of february . the ninth of july . there is an ratification in parliament , in favours of the commissars , declaring the rent , patrimony , and estates of the bishops to be lyable to them for their sallaries ; and there is a reservation in favours of the commissars ; in the restitution of the bishops , there is a decreet against the representatives of arch-bishop fairfowl , wherein the whole defences against the commissars right are repell'd : but by the said decreet , the disparity betwixt the provision of a sallary , in favours of the commissars , and in favours of the other members of court , by the decreet arbitral , is not sufficiently clear'd ; for the decreet , as to the members of court , was null , it being beyond the terms of the submission , which was only in favours of the commissars : and as to the members of court , the decreet infers no special direct obligement upon the bishops ; but only that they are oblig'd to compel their members of court to pay these certain sums to the members of edinburgh , without any penalty , and which hath never taken effect by the decreet , or contract , the commissars had no action against the whole bishops , but only against the whole burden takers , and the arch-bishop : but by the subsequent decreets , and acts of parliament , the whole bishops , and the intrometters with their rents , are directly lyable unto them , and so their executors intrometting with the ann , or the subsequent bishops are lyable ; and that is but prejudice of the obligement in solidum , against the arch-bishop , contain'd in the contract ; by vertue whereof , saint-andrews was decern'd , and by vertue of a submission , betwixt saint-andrews and edinburgh ; edinburgh is decerned to relieve saint-andrews in the half ; and saint-andrews hath ratifi'd to him in parliament , the nomination of the whole commissars , against which , edinburgh did protest . it doth not appear how glasgow los'd his right to the nomination of two established to him by the act of parliament . there was an act for regulation of the commissariots , which took no effect ; neither is there any thing done by the lords , by vertue of the act of parliament . as to the regulation of the commissariot of edinburgh , or setling a course for the punctual and secure payment of the commissars sallary ; the whole instructions above-mentioned , related to , are to be found with the commissars of edinburgh . it is observable by this act , that the commissars of edinburgh have a twofold power ; an diocesian , whereby they confirm the testaments within the diocy of edinburgh , and exerce all power that is competent to other commissars : and another universal and transcendent , whereby they may reduce the decreets of all the other commissars in scotland : and this act founds them so absolutely in this jurisdiction ▪ that it is exclusive of the lords of the sessions power so far , that the lords cannot reduce in prima instantia , a decreet past by any inferiour commissar ; and the lords themselves did so dec●de , after full debate , dury july . though it was there alleadged , that the parliament could not diminish the power of the session , without calling them thereto ; and yet now the lords does ordinarly reduce in prima instantia , the decreets of the inferiour commissars ; which proceeds rather from the inadvertancy of the advocats , who are careless to plead it , to withdraw actions from the j●dicature whereof they are members , than that the lords do concern themselves to claim it ; but both then and now , the lords may reduce the decreets of the commissars of edinburgh , if they dec●de not rightly in th●se reductions . in this act also , bishops are empower'd to creat clerks , and procurator-fiscals ; and though in the commission , which the bishops give to commissars , they give them power to admit procurators ; yet cannot the commissars by that power , creat procurator-fiscals , but only ordinary procurators ; the fiscal remaining still at the bishops nomination , july . . the commissars books bear sedebant , where the lords books bear sederunt . king james finding that the nobility did ordinarly get their children , friends , or servants to be elected magistrates of burghs , whereby they carry'd all nominations in parliament at their pleasure ; did therefore in this act , which is intituled , act for the apparel of judges , magistrates , and kirk-men , ordain , that no man should in time coming be capable of provestrie , or other magistracie , but merchants and actual traffiquers , and habiters within the said burgh allanerly , and no others : by vertue of which act , chancellour seaton was oblig'd to demit his provestry of edinburgh : and this act is renew'd by proclamation in anno . how soon king charles came to the crown . some think , that though noblemen cannot be elected since this act ; yet the privy council may name them : and some think that this act is in desuetude : but i believe neither ; for where the council names jure d●voluto , because magistrates accept not , they come only in place of the old magistrates and council ; and therefore they can only do what these could have done , ex regula surrogatorum ; and this act having been made in favours of the king and monarchy , it cannot run in desuetude , without their consent ; and it is thought ▪ that by vertue of it , none who are lords of the session can be provosts , these being incompatible employments , and inconsistent with the design of this act , which bears to be made to hinder the dissipation of their common good , and perverting of their priviledges , which is much more easie for lords of the session , and persons in publck employment , than for others ; beside , that publick traffique and merchandising , is inconsistent with that exact distribution of justice , which is necessary in his majesties judges , vide lampridium in vita severi , as to the distinction of habits amongst magistrates . this act is explain'd , crim . pract . tit . injuries . to which i shall only now add , that not only what is destructive to the government , but what may tend to the prejudice of the government , is here punished : and this i have thought fit to observe ; because tending has been oftimes debated not to be relevant . it may be also doubted , whether speaking against the house of commons , or their resolutions , is punishable by this act , since it punishes all reproachful speeches of the people , or countrey of england ; and they are the representatives of the people ; and since these are punishable who speak against a councellour of england , much more ought they to be punish'd who speak against the house of commons . but in my opinion , this act reaches only such as speak reproachfully of their nation , countrey , and counsellours ; but the whole act ought to be abrogated by our parliament , as being past by us , in expectation that england would make such an act in their parliament , which they never did ; and upon which account it was never in observance with us . it is likewise observable , that though in our law , concealing and not revealing , is only punishable in treason ; yet by this statute , the hearing any thing spoke against the people of england , or any privy counsellour in that nation , and the not revealing , is declared to be equally punishable , with inventing such calumnies . this act is temporary as to many things ; but it is observable from it , that the using false testimonials , is punishable by death , as falshood . and the power given to the commissioners of the borders , to apprehend fugitives , and to send them , or their marks and tokens to the kings commissioner , is founded on l . ff . de fugitivis ; where limenarcha , which is our commissioners of the borders , debent inquirere in fugitivos ; and to send them with their notae ( which is our tokens ) to the next magistrats . the customs being annex'd to the crown , by the act par. ja. . they are by this act dissolved from the crown , in so far as concerns pounds yearly , to be pay'd to the lords of session , in place of quots of testaments ; and therefore the lords of the session do , conform to this act , decern summarly the tacks-men and collectors , to pay this . pounds , and ordains them to be charged with horning . by the act par. ja. . it is declar'd , that restitutions by way of grace shall not prejudge those who acquired the forefaulted persons lands , either by a lucrative , or an onerous cause ; but because , both by an inference from that , and by the principles of the common law , these who are restored by way of justice , might pretend to quarrel those , who during their forefaulture were presented to benefices , to which they were patrons , upon pretext that they were to be restor'd intirely . therefore it seems that this act has been made ; whereby it is declar'd , that such as are presented to benefices , which were at the presentation of forefaulted persons , shall not be prejudg'd by their restitution ; and which was very just , since patrons are not prejudg'd ; because it is presum'd , that the ordinary would not collate persons that were insufficient ; nor were patrons allow'd to make any advantage by the presentations ; and upon the same principle , it seems reasonable to conclude , that a minor cannot revock a presentation granted by him , with the consent of his curators , during his minority . this act ratifies an act of privy council , whereby aegyptians were commanded to depart the kingdom betwixt and the first of august thereafter , under the pain of death : but it may be justly doubted , how the council had power to make acts inferring the pain of death ? since it is a received principle in our law , as is clear by craig and others , that the secret council can make no act which may infer forefaulture of life or estate : and though by the acts , and . par. ja. . judges be ordain'd to punish aegyptians ; and that by the act par. ja. . vagabonds and aegyptians are to be employ'd in common works : yet by neither of these acts , is the pain of death to be inflicted : and therefore it was lately debated , that this act was but at best , a temporary act ; and so aegyptians could not be impannelled for their life : but yet this act has been still repute a sufficient warrand for punishing by death , such as were known , holden and repute to be aegyptians . and i find , that upon the last of july . moses schaw and others were hang'd as aegyptians ; and it is notour , that immediatly after this act sheriffs and others did hang very many , by warrand thereof ; and the act is not temporary , for it appoints them to be executed in time coming , after the first of august ; and the act has ordain'd aegyptians to be proceeded against as sorners and common thieves , who are by our law to be punish'd with death , as is clear by the narrative of this act , which bears that the council had commanded , that the sorners and common thieves , commonly call'd aegyptians , &c : should depart forth of the kingdom ; so that the council has not inflicted the pain of death upon a new crime , but has only declared , that aegyptians fell under the old crime , that was punishable by death : nor can it be deny'd , but that from this and many other acts it is clear , that the council has a power to extend and interpret statutes , even relating to life and forefaulture ; since the act appoints only such to be punishable by death , as are known , holden and repute to be aegyptians : it may be doubted , what can prove that the aegyptians pannell'd , are known , holden and repute to be such ? for which , beside the common inferences of notoriety adduc'd by mascardus and others , in probatione notorij . our law allows that such as call themselves aegyptians , or go up and down the countrey , bleaking their faces , telling fortunes , and speaking the gebrish peculiar to those people , shall be punished as aegyptians : and ordinarly his majesties advocat chooses such assizers as know the persons impannelled , to be commonly repute to be aegyptians . these who are call'd aegyptians in scotland , are call'd zigeni , tartari , bohemij , all which are remarked as idle beggars , going about oppressing the people , and cheating them by vain superstitions , and fortune tellings : of which sort of people fritschius has written a treatise , call'd , de origine zygenorum & eorum coercitione ; where are to be found , upon what pretext they were first suffered in several nations , which was , because they did assist several princes in their great difficulties , having from being vagabonds , gathered themselves under captains for that effect , but continuing after peace made , to grow insolent , they were ordain'd to be banish'd in germany , by an imperial constitution , anno . and in france , by the act of orleance , anno . . and thereafter anno . which is about the time of this act ; and in spain . . the time of this act , the secret council had a commission from the king , to receive resignations , and all the procuratories of resignations then , did still bear a power to resign in the hands of the secret council : but now resignations can only be made in his majesties own hands , or in the hands of his exchequer . this act extends to the decreets of the admiral and his deputs , the priviledge of having letters of horning granted upon them , without the necessity of a decreet conform , as was the old custom , and in this it equals the decreets of that court , with the decreets of sheriffs , and baillies of burghs : but by the act par. ch. . whereby poinding is ordain'd to be granted upon their decreets ; the parliament has forgot to extend that priviledge to the decreets of the admiral . observ. . that this act declares the admiral to be a supream judge ; and therefore it has been decided , that he may reduce the decreets of inferiour , or admiral-deputs , and that he may reduce his own decreets upon just reasons , such as noviter provenientes ad notitiam , &c. and which kind of jurisdiction is competent to no inferiour judge : and yet the lords of session do suspend and reduce his decreets also , and advocat causes from that court. observ. . that by this act the admiral is declar'd to have power of summar execution ; because strangers and sea-faring men cannot attend as others may ; and therefore it is , that such as obtain decreets before that court , may use execution thereupon within three tides . vid. observ. on the act par. . ch. . king james the sixth , parliament . his majesty held a general assembly at glasgow ; and in anno . drew up some articles to be presented to the parliament , which are set down by spoteswood , and many whereof are here confirm'd . by this act his majesties power to call assemblies , is declar'd a part of his royal prerogative , vid. act par. ja. . the bishop is to be moderator , and in his absence any whom he shall name . the bishop only can excommunicat , and with such ministers as he associats to himself , he only can depose . in this act likewise is set down a formula of the oath of supremacy . as to the manner of presenting ministers , it is formerly fully treated in the observations upon the act of the par. ja. . after king james the sixth came to the crown of england , it was necessary that the laws concerning the borders should have been alter'd by both kingdoms ; and by this act , there is a power granted to his majesties officers in england , to remand from the courts of scotland , that is to say , to require his majesties officers in scotland , to deliver up english malefactors , who had fled into scotland : and another act of the same tenor verbatim , was past in england about the same time . in place of the old wardens of the borders , there is now a commission granted under the great seals of both kingdoms , to an equal number of scots and english , who have in effect a commission of justiciary ; and it was found by the council of scotland , that they could not quarrel the decreets of the borders , because they proceeded by a warrand under the seal of both kingdoms ; but the laird of haining having charged elliot for payment of a sum , for not presenting of a thief to the commissioners of the borders , conform to a decreet of the commissioners , finding that he had forefaulted the bond , there was a bill given in to the council , craving that this case might be remitted to the commissioners of the borders , and not suspended by the session ; because , first , these decreets being pronounced by the english , as well as the scots commissioners ; the session could not be judges to what was done , by vertue of an english commission , and because they could not cite the english commissioners ; therefore they could not reduce their sentences . . the commission of the border is a criminal court , and the lords of the session are only supream judges in civils . . the border is judg'd by a law unknown to us ; and therefore since the lords of the session behov'd to consult them , though they were judges , it but multiplies processes and expences , to allow the lords to be judges in prima instantia . . if the lords were judges , all thieves , or their cautioners would offer to suspend , or reduce , which would much hinder that expeditness of tryal , which is requisit to stop thieving in the borders . . if the lords here review'd such decreets , the judges at westminster would do the like , which would be very troublesome and expensive to us : the council upon this debate recommended to the lords to remit the tryal ▪ in so far as it was criminal to the saids commissioners . by this act , remanding is only to be granted after full probation of the offences of the persons , remanded in open court● but this is now antiquated , and in desuetude ; because it was found by the commissioners of both kingdoms , to be unpracticable ; if either the names or proofs were published in open court , the persons to be remanded would flee , and the witnesses might be corrupted : therefore it was ordered by common consent , that the commissioners of either kingdom might remand privatly from the commissioners of the other kingdom ; and that the person so delated , might be immediatly seiz'd upon . this act is fully explain'd , crim . pract . tit . rapt . this act is explain'd in the observations upon the act par. . ja. . this act discharging all actions of spuilȝie committed upon the borders , prior to his majesties coming to the crown of england , is but temporary ; but from it , it may be observed , first , that the king and parliament may dispense with the privat interest of parties upon a publick account : nor does the act salvo jure , subjoyn'd to the several parliaments , prejudge or derogat from this act , upon pretext that the parties , whose interest was remitted and discharg'd , were not call'd . . in all such discharges of privat interest , and acts of grace , discharging penal statutes ; exception is still made of decreets already obtain'd ; for by the obtaining of the decreet , before that discharge , the debt becomes innovated ; and a private debt , of the nature of other private rights . by this and many other , the like observations we may see , that the reading temporary , and even abrogated acts , is not useless , since material observations may be made thereupon . this act is explained in the act par. ja. . this act ordains arch-bishops and bishops , to build and repair their houses and manses , and that the successor shall have action against the predecessors executors , who suffered them to decay , which was very just upon the same reason , that all liferenters are oblig'd praestare hanc cautionem ususructuariam : and where the houses are in decay , and repair'd by the predecessor , the next successor is to satisfie therefore , at the sight of two or three of the bishops , within the province ; providing that the satisfaction exceed not pound , if they be prelats : and merks , if they be other inferiour ministers : and by the act sess. par. ch. . this is renewed as to the maintaining of the manse ; but the heretors of the paroch , where there are no manse , are oblig'd to build manses , for ministers at the sight of the bishop , or such ministers as he shall appoint , not exceeding pounds , and not under merks ; so that in effect , a ministers manse may be as dear by that act , as a bishops manse is by this , which seems unreasonable ; but their interveening more than years betwixt the two acts , the price of things , and fees of work-men , was much increased the time of the last act. vide papon arrest . lib. . num . . & additiones num . . king iames the sixth , parl. . the presentation of bishops by kings , begun in the reign of lewes king of france , about the year . and was resign'd to the popes by philip the first ; and thereafter , by the canon law , the nomination of arch-bishops and bishops , did belong to the pope only , as the canonists affirm ; but he transfer'd this power to the chapters of cathedral churches , c. omnes . . dist . &c. fin - quaest . . and at last in france by agreement betwixt pope leo the tenth , and francis the first of france ; the nomination of prelacies was after much debate , granted to the kings of france ; though it be pretended to be a priviledge belonging to kings , in synodo aurel. quinta , as the learned pith●us has proven ; and after that concordat made in favours of francis the first . it appears that king james the fifth , who lived in the same age , and married francis the first 's daughter , did with his parliament declare , that the nomination of bishops did belong to the king of scotland , and the provision only to the pope , act par. ja. . but by this act it is declar'd , that arch bishops and bishops shall be by his majesties licence elected by the dean and chapter of their own cathedral-kirk , to which they are to be prefer'd , who being assembled by his majesties warrand , shall proceed to the election of the person named by his majesty ; and the election being testified under their seals and subscriptions , he is to get a right to his benefice under the kings great seal , and to be consecrated . it is fit to know that this warrand for meeting , is call'd with us , a conge d'eslire , which is a french word , signifying a liberty to elect. it is fit to know likewise , that with the conge d'eslire , there comes a letter from his majesty , recommending such a person , whom the dean and chapter are oblig'd to elect , by the words of this act ; and being elected , the election is recorded in the register of the chapter : in which register , all deeds done by the bishop , either for entering vassals , or granting tacks of teinds , are inserted . an extract of this election is returned to the arch-bishop of the province , and inserted in his register ; and by him transmitted to the king , who thereupon grants a patent to the person so elected , who after this is call'd bishop elect of such a see , which passes through all the seals , and by which he has right both to spirituality and temporality ; though this act says , it shall only give right to the spirituality ; this being signifi'd to his majesty by the said arch-bishop ; the king grants his royal mandat to a competent number of bishops within the province , ( which cannot be under three , by the canon . concil . nicen. ) after which there is no new gift to the temporality , as this act provides : only before his actual possession , he makes his homage either to the king personally , or to one commissionated to receive it ; of which oath and homage , no mention is made in ecclesiastick story , till the fourth counsel of toledo , anno . nota , the mandat for consecration , passes only the great seal , per saltum . it is natural to all benefices that they should be vacant before they be fill'd ; and the right should express a modus vacandi ; and therefore his majesty having sent down two conge d'eslires in january . one in favours of the bishop of edinburgh to be bishop of ross : and another in favours of the bishop of galloway , to be bishop of edinburgh ; it was advis'd that the conge d'eslire , in favours of edinburgh , should not be presented till edinburgh was vacant , by his being elected by the chapter of ross. it is observable likewise from this act , that a bishop has not right to the temporalities , till after consecration : for the act sayes , that after the consecration , his majesty is to dispone to the person elected the temporality ; and the same being past under the great seal , the bishop shall do homage , and swear obedience ; neither shall it be lawful for him who is admitted to intromet with any of the benefices , or rents of the bishoprick , until he have taken the said oath , and done the said homage . and thus the english lawyers , following , as i conceive , that notion of the common law , that episcopus est maritus ecclesiae : they say , that election is as the sollicitation ; the confirmation is the contract ; and the consecration is the consummation of the marriage : but where a bishop is translated , there needs no consecration , either by the canon law , or ours . the old forms of election was , that the king sent a visitor to oversee the election , and he return'd to the king the decree of the election , who confirm'd it by giving investiture ; and the metrapolitan was oblig'd to ordain the person elected , the investitu●e of the spirituality , was by giving a bible ; and the temporality by a ring and baton , vid. sirmund . form . lib. . formul . . and the conge d'eslire succeeded in place of these visitors . by this act the dean and members of the chapters of the cathedral-kirks within this kingdom , are restor'd to their manses , gleibs , and other patrimonies belonging to them . the chapter is to the bishop , what convents were to other prelats ; that is to say , their council , of which the dean , or decanus was the head , under the bishop . by the civil law , decanus erat ille qui defunctorum lectos seu feretrum gestabant , vid. tit. de decanis , lib. . cod. tit . . but by the canon law , decanus comes from the greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 because the dean proceeded over ten canons or prebends ; and their decani especially in the cathedral churches succeeded in place of the archipresbyter ; and therefore these two are taken in the same sense , cap. ad haec . de off . archid . vide bengeum de beneficiis , pag. . and with us , deans are created by the king , he being only patron of that benefice . the chapter is call'd capitulum by the canon law ; because it is the little , or inferiour head of the diocy , and is defined to be clericorum congregatio sub uno decano in ecclesia cathedrali . a bishop in our law , nor no other dignifi'd person who hath a convent , can alienat without the consent of their convent , or the greatest part of them , beside himself , who is the disponer , in which number , minors nor absents , are not counted ; march . . if one of the chapter have two benefices , he will have two votes ; and albeit the law ordains them to be capitulariter congregati ; yet now sufficiunt eorum suffragia licet emendicata vel sevaratim impetrata , which is not only by meer custom , as craig observes ; but by law likewise , act par. . ja. . and thus an instrument of resignation of a benefice , was found sufficient , though some of the convent subscriv'd not before the date of the instrument , november . . providing alwise that none of their subscriptions be obtained after the death of the granter ; for then they cannot be said to consent , seing they are not all alive together : from which it follows likewise , that the alienation is not valid , if any of the convent , or subscrivers be dead before the rest subscrive ; where many subscrive separatly , the consent of the last is drawn back to the consent of the first , craig . pag. . and albeit craig be clear , that the consent of the chapter is requisite , tam in renovatione quam in alienatione feudi : yet by this act it is for the vassals case ordain'd , that the bishops or chapters consent is not necessary to the receiving of vassals upon composition , or otherwise ; but that the direct superiour may receive them by himself . nota , by that part of the act it seems , that though regulariter , superiours are not bound to receive singular successours : yet kirk-men being superiours are . if there be no chapter , or convent , the appending of the seal of the convent , with the kings confirmation , is sufficient , craig ibid. the arch-bishop of saint-andrews had of old , the conventual brethren of the priory of saint-andrews to be his chapter : but by the act par. ja. . power is given him ( that priory being supprest ) to choose seven to be his convent ; and ordains , that the appending of the common seal of the convent , shall be sufficient to declare their consent , without their subscription ; which act is innovat by this act , wherein a convent is particularly set down to him , but nothing spoke of the seal : and therefore the appending of the seal is yet sufficient ; for this chapter comes only in place of the seven prescrived by the first act ; and the subscriptions of these seven were not necessary , ergo , neither is the subscription of this chapter . as the consent of the chapter , or most part thereof is requisite to an alienation made by the titular , as the bishop , abbot , &c. so reciprocally the consent of the titular , and most part of the chapter is requisite to the perfiting of all rights made by any member of the said chapter , of his particular benefices , or of any benefice belonging to them in communi , which rule holds in all conventual benefices , except that of the arch-bishop of saint-andrews ; for it has been decided , that by this act , any member of that chapter therein entered , may set tacks , &c. without consent of the arch-bishop of saint-andrews , novemb. . . where these conventual benefices have patrons ; the consent of the patron is likewise required , craig . nota , that the bishop of edinburgh is by the erection of that see , in anno . made chancellour and vicar to the arch-bishop of saint-andrews , and so is the first ordinary , or single bishop ; which priviledges belong'd to the see of dunkeld ; and so the bishop of caithness has not now any suffrage in that election , because they must be but eight in this act. after the arch-bishops and bishops were restor'd , the thirds of benefices , out of which ministers were provided formerly , came to be an unfit and unproportional stock , for providing the whole ministry of the kingdom ; and therefore by this act , there is a commission granted for planting and providing of churches ; and this is the first of the many commissions which were granted by parliaments afterwards to this effect , and their decreets are to this day call'd decreets of pla● in our practice . observ. . the lowest stipend allow'd by the parliament here , is five chalders of victual , or five hundred merks : but by the act par. ch. . the lowest stipend is appointed to be eight hundred merks , or eight chalders of victual ; and the decreet whereby this is appointed , is call'd , the decreet of modification ; whereas , if the stipend be divided , and proportioned as well as modifi'd , the decreet is call'd , a decreet of locality : and this proportion is so far observ'd , that the victual so modifi'd , was found by the lords to be payable , according to the measure of the shire , where the paroch was , and not according to the measure of linlithgow , where the modifi'd stipend would not have come the length of the quantity allow'd by the act of parliament , according to the measure of linlithgow , june . . minister of dalrymple contra the earl of cassils . observ. . by this act power is granted by the parliament to the commissioners , to unite , or dis-unite kirks ; which union was likewise allow'd by the canon law , and is defin'd to be duorum vel plurium benefi●iorum cum causae cognitione a superiore & ordinar●o in perpetuum canonice sacta connexio , cap. exposuisti de praeb . so that of old , the ordinary only could unite benefices ; but now the king , as having come in place of the pope , grants this commission to unite , with the consent of parliament , but the bishop who is ordinary , and the patrons , if any be interested ▪ must be likewise call'd ; and the act par. ja. . ordains , that all persons interested in the union be consenting : by which i understand the ordinary , the patron , the incumbent , and the parochioners ; and this act appoints , that if there be moe patrons , they shall present , alternis vicibus ; and because it may be doubted who should be the first presenter ; in that case it is fit to know , that the lesser benefice is alwise to be united to the greater ; and so the greater remains still the mother , superiour , and principal church , cap. recolentes de stat . monach. and therefore it would seem that the patron of the superiour benefice , is to be the first presenter . the reason given by the canon law for uniting of benefices , are , that the rector , or parson may be the better enabled to relieve the poor , and maintain hospitality , the churches being so near other , that one person may conveniently serve the cure in both : the great poverty of the benefices united , and the fewness of the parochioners . but with us benefices are never united , but where the stipends are small , the parochs near , and the charge little , or no waters interjected ; which qualifications are left by our law to the arbitriment of the commissioners for plantation of kirks ; for none else can unite with us : but by the law of england , . car. cap. . it is lawful for the bishop of the diocess , major of any town , and the patron to unite churches , provided the churches so united , exceed not the value of a hundred pound sterling , vide petrum de perusio in tractatu unionum . observ. . that there is power granted by this commission to prorogat the tacks of tiends , when the tacks-men are burdened with augmentations . observ. . that the sentences of their commissioners are to have by this act , the authority and force of a decreet and sentence of parliament ; and therefore it is , that in our practice , the decreets of this commission can neither be reduced , nor suspended by the lords of the session , and that because of the act par. ja. . by this act no arch-bishop , bishop , or other prelat can set any tacks of their patrimony for longer space than nineteen years ; nor no inferiour benefic'd person for longer space than their own life-time , and five years thereafter , but the tacks otherwayes set , are not declar'd null , the act it self not being conceiv'd irritanter , but only the benefic'd persons , who set the tack for longer time than is express'd in this statute , are thereupon deprivable , for having contraveen'd the same ; for the parliament having declar'd that the contraveeners are deprivable , but not the tacks null . the lords conceiv'd that the punishment being under the consideration of the parliament , at the time of the making of this act ; and they having determined the punishment to be deprivation ; but not having annull'd the tacks : they thereupon concluded , that the tack could not be declared null , though set for longer time than is declar'd by this act , november . . hope contra kinnaird . observ ▪ . that by this act it is declar'd , that all tacks set for longer space than the time foresaid , shall be registrated in a book to be keep'd by the clerk-register for that effect , else to be null ; and therefore tacks , though for longer years , if they be registrated , are sufficient , hop . tit . tiends . likeas , it has been found that registration in the books of council and session , is sufficient , though it be prescriv'd here , that they be registrated in a register to be made for that peculiar use , since the clerk-register had not made such a specifick register : all which was found in the foresaid decision , novemb. . observ. . the persons allow'd to set tacks for nineteen years , are arch-bishops , bishops , and prelats : and though by the canon law , omnis honor qui ali●ui tribuitur propter administrationem est praelatura : yet by our law , he is only a prelat who has a chapter ; and therefore a tack set by a provost , is null , if it want the consent of the patron ; since prelats can only set without the consent of the patron , july . . hop . tit . kirk-men . observ. . that exception is justly made in this act of tacks , set by order from the commission of the kirk ; for in effect these are not set voluntarly , but by order from a committee of parliament , who when they grant augmentations , which burden the tacks-men , or titulars of tiends , do in recompence of that burden , prorogat their tacks , for as many years as they think fit . observ. . that even tacks for these years , are null , if they have not the consent of the patron , by the act par , ja. . observ. . that though prelates may set tacks of their patrimony for nineteen years ; yet they cannot set tacks of their casualities for longer than their life ; such as quots of testaments , &c. as is provided by the immediat subsequent act , viz. act. . observ. . that a bishop cannot set a new tack before the old tack be expir'd , as was decided in favours of the bishop of the isles against ascog ; for else the present incumbent might make the benefice useless to the successor ; and it being against the nature of benefices , that they should be set for longer time than the incumbent has right , it were most unjust to extend this . observ. . it may be doubted , if a bishop may set a tack , after he knows he is recommended to another see ; for that seems fraudulent , though it be ordinary ; and if it were allow'd , the intrant bishop would certainly find all his patrimony exhausted by such tacks ; and laicks would get very easie tacks ; for the setter knowing that he were to be remov'd , would set tacks for any duty . observ. . it may be doubted if a bishop who consented to such a tack , when himself was a member of the chapter , can quarrel such when he comes to be bishop of that same see ; for though he may pretend that he is only to consent , and not debate , or inquire ; yet this seems inconsistent with reason ; for the chapter is appointed to be quasi tutor ; and so every member is oblig'd to inquire ; and therefore as he should not have consented , if he had not conceiv'd the deed to be legal in it self , and fit for the see ; so ought he not to quarrel what he has already acknowledged to be fit . this act is formerly explain'd , act par. ja. . this act empowers the lords of the session to grant letters for charging the parochioners to meet and stent themselves , for furnishing basons and lavers for administration of the sacrament of baptism ; and cups , tables , and table-cloaths , for administration of the communion , and which is accordingly observ'd ; but though the rubrick does generally bear , furnishing of necessaries for administration of the sacraments ; yet the communion elements fall not under this act ; but when stipends are modifi'd by the commission for plantation of kirks ; there is likewise a particular sum modifi'd for the communion elements , which the minister was once found to have right to , though he do not administrat the sacrament yearly , but now it is design'd that this should be altered , and that that money should be ordain'd to be put in the poors box. by this act the nobility , or prelats are allow'd to vote by proxies , if they be lawfully excus'd . observ. . this is not allow'd to barons , nor burgesses ; because the allowance is only specifickly given to dukes , marquesses , earls , viscounts , lords , or prelats ; and yet i see no reason for the distinction ; but on the contrary , it seems more reasonable that to the end a whole shire may be represented ; that therefore they may be allow'd to deput some to vote , in case others be absent ; for though it may be answer'd that the power of proxies is unnecessary in shires , because if their members be necessarly absent , they may choose others : for to this it may be reply'd , that they cannot choose new commissioners , except in case of de●th ; whereas the shire may be much concern'd to have their proxies at any one dyet . likeas , by the act par. ja. . all free-holders are allow'd to have proxies in case of lawful absence from parliaments . it is ordinary also for the chief burrows to choose , and send an assistant to attend their commissioner . observ. . by the said act par. ja. . absents seem only to be allow'd to send their procurators for excusing their absence ; but by this act they are allow'd to reason and vote ; and therefore it may be doubted , whether a brother who cannot vote in his own brothers cause , may notwithstanding be admitted to vote for his brother as proxie for another , to whom his brother is a stranger ; since here sustinent personam extranei ; but seing the affection is the same , i think they would not be allow'd ; nor does the parliament now allow proxies in any case . it may be li●ewise doubted , if this act may be extended to conventions , since the act speaks only of parliaments ; and does not add , or other general councils , as the act par. ja. . and other acts do ; but yet the act par. ja. . allowing proxies in absence , speaks of parliaments and general councils . obs. . it is the kings advantage and interest that proxies should be allow'd ; for they are only to be allow'd by this act , where the reason of absence is warranted by the king , his commission●r , or council ; and so the king may allow proxies , or not , as he pleases , and needs never allow any to those whom he suspects ; which is also the present custom of england , as to the peers . observ. . that though letters of actourney out of the chancery , be sufficient for absence in other courts ; yet by this act , the absents must give a written warrand under their own hand . this act gives instructions to justices of peace and constables , which i● renew'd , and somewhat altered by the act par. ch. . but by this act , their decreets are ordain'd to receive execution by letters of horning and poynding ; and that no suspension shall be granted , but on consignation ; which consignation is neither appointed by the foresaid act . nor is it now in viridi observantia : and though by both the acts , they are ordain'd to proceed against cutters of green wood , slayers of red and black fish , &c. yet they are not in use to proceed in such cases ; because the act appoints , that commissions shall be granted to them for that effect ; but these commissions have never as yet been granted : though by our customes , no person can be holden as confest , except they be personally cited ; because else men might be drawn in snares , by citations at dwelling-houses ; yet here they are allow'd to be holden as confest upon the second citation at their dwelling-houses because the subject is small in justice of peace courts . this act is likewise explain'd , crim . pract . tit . justices of peace ; and is ratifi'd by the act par. ch. . where the council is allow'd to grant them , what further instructions they shall think fit . the council uses to name justices of peace , in place of such as dy ; and it being alleadg'd that all commissions for justices of peace should slow from the king immediatly , this was refused by the king , as being contrary to the constant custome of council , whom the king allows to name justices of peace . by this excellent act , such as have peaceably possessed their lands for fourty years , are secured by prescription . as to this act it is observable ; first , that prescription is only competent to such as have bruiked by vertue of heretable infeftments ; and therefore he who alleadges prescription , must alleadge an heretable title ; but though the possessor be not expresly infest ; yet if he has possessed the subject , as part and pertinent , it will be sufficient ; and therefore a salmond-fishing was found to be prescriv'd , though it was alleadg'd to be inter regalia , since the prescriver was infest cum piscationibus in general , february . . but if the prescriver be infest upon a bounded evident , it will not furnish him a valid title for prescriving , as part and pertinent , any land that is without the bounding , november . . this act is also extended to heretable offices , as to patronages , pensions , and all servitudes , though not expresly mention'd ; and though heretors and wodsetters are enumerated , sometimes as different from one another , act sess. par. ch. . yet heretage in this act comprehends wodsets , and it is even extended to long tacks ; so that it was found , that after fourty years they could not be quarrel'd , as granted without consent of the patron , july . . this want of a title likewise , and of bona fides , hinders a vassal to prescrive against his superiour , since the reddendo of that same charter , whereupon he founds his prescription , obliges him still to know his superiours right ; and by this act for the same cause , a wodset cannot prescrive , where the reversion was incorporat , in the body of his own infeftment . since this act appoints that his majesties lieges bruiking for . years , shall have right by prescription ; it may be doubted , whether prescription can run in favours of strangers , who have not been naturalized ? observ. . that these fourty years are only to run from the date of their infestments by this act ; and yet in warrandice , it is only to run from the date of the distress : but from both it is clear , that the reason is , because till then , they who have such rights , non valent agere ; and therefore the exception allow'd by the civil law of non valens agere , is allowable in ours , though it be not expressed in this act , as minority is , whereby it seems that exceptio firmat regulam in non exceptis . likeas , it was found in the earl of lauderdail's case , against the earl of tweddel , that lauderdail being forefaulted by the usurpers , prescription could not run against him during that forefaulture ; but where there is a title , prescription may run , albeit the defender was absens reipublicae causa , at the least , durst not come home in the usurpers time , for alleadg'd crimes committed against them , as was found in white-foords case , the of july . he having kill'd in holland dorislaus , one of the kings murderers , for the lords thought that he might have transferr'd his title to another , and if this reason hold it seems that absens reipublicae causa in general , is not sustainable as minority is , since these who are absent may leave procuratories to pursue their rights . it may be likewise debated , that such as are vi majore hindred from coming to pursue , as being taken by robbers , or pirats , should have the priviledge of non valentes agere , though no exception be made of them here , for though the chief design of the act be , to establish heretable rights in the persons of singular successors , who cannot know such accidents , and are secure if they find a fourty years progress : yet prescription was at first introduced , for punishing the slouth of the proprietars , amongst other reasons ; and therefore non valens agere , was allow'd by the civil law and ours . it may be also doubted , whether prescription should run against a furious , or mad man , since they are minors in the construction of law , and so are to have curators , and are less judicious oftimes than minors are ; but yet since they are not exprest here , when the law secur'd priviledg'd minors , it is presum'd they were designedly omitted ; and it were hard to know who are furious , and furiosity might continue eighty or ninety years ; or a man might feign himself mad , &c. observ. . that this act makes a difference betwixt such as are singular successors ( who must produce for the title of their prescription , not only a seasine , but a charter ) and heirs who need produce no cha●ter , but seasines , one or moe , proceeding upon retoures , or precepts of clare constat ; but because the act sayes , that they shall produce seasines , one or moe continued , or standing together for the space of fourty years ; therefore the lords found ; that seasines must be produc'd by the heir , by vertue wh●reof , he and his predecessours have bruiked for fourty years , during their being infest ; and so where the father was infest , and lived thirty nine years ; yet the son not having been infest , though he and his grand-child possessed for above . years : this seasine was not found a sufficient title for prescription , february . earl of argile contra menauchtan , and the reason is , because a seasine is but assertio notarii ; and therefore it was too lax a foundation for an heretable right ; and one seasine may be easilier forg'd than moe seasines can , and one seasine being forg'd , may be laid up in the charter-chist , so that the true proprietar could not , before the registration of seasines , know how to improve the same : and since this act requir'd no charter from heirs , it was just that it should require more seasines , to secure against falshood : but since the act appointing seasines to be registrated , the argument of easie forging is much taken off ; because the act of parliament sayes , that it is necessary to produce a charter , granted to them by their superiours and authors : it may be doubted whether the superiour is oblig'd to receive a vassal , though fourty years in possession , except he or his predecessors can shew a charter from him ; and that because , not only does the act of parliament say copulative superiours and authors ; but without this , there is no title against the superiour : and some rather think the superiour would b● excluded by this fourty years possession from his right of supe●iority . observ. . though the act require charter and seasins , yet a disposi●ion , or precept of seasin would be sufficient ▪ for many compleat rights have no charter . observ. . these fourty years run , de momento in momentum ; and therefore the prescription wanting a day , was not sustain'd , july . . though it was alleadg'd that de minimis non ●●rat pr●tor : and it would be severe to take away the old heretage of a family , for want of one day , or hour . these fourty years are tempus continuum , and not utile ; and therefore the law subduces not from the compt , those years in which judicatures were not patent ; or in which , war and pestilence hindered the proprietar to pursue , the of june . but it may be here doubted , quid juris , if judicatures were not open through war , or pestilence , for the greatest part of the whole fourty years . observ. . this prescription runs against his majesty , as well as subjects , for the act sayes expresly , that these who have possessed fourty years , shall not be troubled by his majesty , or any other , which was exprest , least 〈◊〉 it might have been alleadg'd that the negligence of his majesties officers , should not prejudge him in not pursuing , &c. which are the express words of the act par. ja. . observ. . that by this act the prescription was drawn back in favours of these who had possessed fourty years , prior to the act ; for drawing back whereof , nothing can be answered , but that this remedy was previously allow'd by the civil law ; but least the subjects might have been hereby prejudg'd , thirteen years are allow'd to run from the date of this act , so that though they had possessed fourty years before the act , they could not prescrive , except they had likewise possessed years after this act ; and though in this clause the priviledge of minority be not repeated ; and that it seems that the parliament design'd not to deduce minority out of so short a time , as . years , since having had it under consideration in the act , they excepted it not in this clause ; yet it was found that minority was to be discounted even in this case , july . observ. . that by this act it is declar'd , that except the summons be call'd and continu'd , it shall not interrupt prescription ; and it is declar'd , that the raisers of summons shall not be oblig'd to insist , except where the summons is called and continued , and the defenders of new summoned thereby : and yet the of july . elle●s contra scot. it was found , that upon a single summons , one may be forc'd to insist , which i cannot reconcile with this clause , except by restric●ing this clause meerly to the course of thirteen years here specifi'd , and generally a first summons executed , interrupts prescription , january . . and of old , the execution of a first summons did interrupt , though they bare no express relation to the summons , upon which the interruption was founded : but because there were several summons at the same parties instance ; so that the execution of one summons might be obtruded for the execution of another . it is appointed that the execution of summons shall bear express relation to the names of the pursuers , and defenders ; and it shall not be sufficient that the execution does generally relate to the summons by the act sess. par. ch. . and it had been fit , that the act had added , that the execution should bear the nature of the action deduced in the summons ; for else , where the pursuers and defenders are the same , one execution may be still obtruded for another . observ. . albeit this act appoints all rights to prescrive ; yet it was found , that heretors cannot prescrive a right of their t●●nds against titulars , except the lands were feued , cum decimis inclusis ; but that they might prescrive liberation for bygones preceeding fourty years , as in customs and feu-duties , which prescrive not ▪ quoad the right , though neglected fourty years , february . . earl panmuire contra the parochioners of inverness : vid. observations upon act par. ja. . observ. . that falshood never prescrives by our law : but whether this be in our law peculiar to that crime ; i have debated crim . pract . tit . prescription . observe also from the narrative of this act , that the registration of a paper in the publick register , is a great adminicle of approbation , for the paper must be left there : though falshood prescrives not , when the paper is produced , and the pursuer offers to improve the same : yet it may be doubted , whether when papers are only call'd for in an improbation , in order to a certification , and for trying of the defenders rights ; prescription may not be receiv'd against that presumptive falshood , wherein the writs are only declar'd to be false , fictione juris , and the true intent of such improbations , is in effect but to try the rights civily ; and so it resolves properly , but in a reduction , though that dangerous certification of presumptive falshood is adjected , ob terrorem . by the act par. ja. . summons of error prescrive within three years , in so far as concerns the punishment against these who have committed the error , who cannot be punished after three years : but yet by this act , the retour it self may be reduced at any time within twenty years : which prescription of twenty years , militats only in cases of competition , betwixt the several kinds of heirs amongst ▪ themselves ; as whether the heir of line should be prefer'd to the heir of tailȝie ; but it does not exclude the clear interest of blood ; for jura sanguinis nullo jure civili dirimi p●ssunt l. . ss . de reg. jur. and therefore an ●lder brother was found to have good interest to reduce a second brothers retour , january . . by this act , though such ret●ures may be reduced in prejudice of persons so served : yet if the person so served have dispon'd their right to singular successors , having bona fide acquired rights , as said is , they cannot be prejudg'd ▪ and in our law this is still introduced , for the good of commerce , in favours of singular successors ; for how should they know that the retour was reduceable , vid , act par. ja. . where the like priviledge is granted to singular successors of bankrupts . by this act we find that executors nominat had formerly by vertue of their office , the whole d●functs part of the executry , that is to say , the whole executry , if there was no wife or bairns ; the half where there was only a wife and no bairns ; or only bairns , and no wife : and the third , where there was a wife and bairns : but by this just act , they are only ordain'd to have a third of the defuncts part ; and there was good reason for abrogating the former custom , whereby the executor was in effect universal legatar , where there was no other legatars . albeit in reason the executor should only have had some small acknowledgement for executing the defuncts will. observ. . that albeit the narrative of this act mention only the case of strangers , who are executors nominat ; yet where a wife is nominat , she has the same interest , viz. a third of de●ds part , to which she will have right , beside her own half , or third of the moveables , as relict ; so that all are understood to be strangers in this act , except the nearest of kin , who would fall to be executors by law ; but if one of moe nearest of kin were nominat , it might be doubted what share of the moveables such an executor would have , whether he might claim a third of deads part , as executors nominat , and a separat interest as one of the nearest of kin ? it seems probable , that if there were only two nearest of kin , whereby the benefite as nearest of kin would be greater than as executors , he would only have the half , and nothing as executor ; because by this act , if the executors have a third of deads part by any other title , he is not allow'd another third by vertue of the act ; and albeit a wife have both a half , or third as relict , and a separat third as executor ; yet the relicts part is not by succession , but is her own proper interest , arising upon the dissolution of the marriage : whereas the question is here only as to deads part : but if there were moe in the same degree to the defunct than three persons , whereby the executors interest , as nearest of kin , would be less than a third ; in that case he might claim the benefit of this act ; because though the main and ordinary case considered , is of executor strangers : yet the statutory part of the act is general : and it were against reason that the nearest of kin should be in a worse condition than a stranger . observ. . that this act relates only to executors nominat ; and therefore executors dative have no more for executing the office , than their expences , which is very reasonable : for otherwayes s●●angers would frequently ingire themselves to the prejudice of the nearest of kin november . . ● ker contra ker. observ. . that notwithstanding of this act , where there is an universal legatar , the executor gets no part of the defuncts part , january . . patoun contra leishman . november . forsyth contra forsyth . observ. . that by the confirmation of the defuncts testament , the interest of the nearest of kin is ipso jure established , so that albeit the nearest of kin should immediatly decease before executing of the testament , the interest that was competent to him , is tra●smitted to his children , or nearest of kin , as was found , february . . bells contra wilkie , where the three sisters of patrick ●ell being confirm'd as executors , whereof one deceasing before executing the testament , her son did 〈◊〉 in his mothers testament , the third part that belonged to his deceased mother , for which the two surviving executors were found countable to him ; but where the nearest of kin died before the testament of the defunct was confirm'd ; it was found that the interest which would have been competent to that nearest of kin confirming was not transmitted to his executor ; but that there was place for the nearest of kin , of the first defunct , february . . forsyths contra paton : where it was also found , that a child having survived his mother , did not transmit her third to his father as a legittim ; but that the father was lyable for the third of his moveables to his wifes brother , who was her executor , and nearest of kin. there are two cases provided for in this act ; first , that liferent tacks of lands and tiends , shall not fall under single escheat , but under the liferent escheat ; and yet if the superiour , to whom that life-rent-escheat falls , go to the horn , that same liferent-escheat of the vassal will fall under the superiours single escheat ; for it is no liferent in the superiours person , for he has only right to it during his vassals lifetime , but not during his own : as also , for the same reason , if the king gi●t the liferent escheat to a donatar , it will fall under the donatars single escheat ; and if the donatar assign the same , it will fall under the assigneys single escheat , not because assignations makes that moveable which was heretable , for assignations alter not the nature of the thing assign'd ; but because the assigney has not these rights for his lifetime . the second part of this statute provides , that in case any tacks of lands or tiends , contain more lifere●ts ; the first liferent only shall fall under the liferent escheat by the first liferenters rebellon : but the remnant liferenters , or heirs , shall not be prejudged . it is fit here to observe , that if a tack be set for fifty or sixty years , yet it falls under the single escheat , for all that falls not under liferent-escheat , falls under single-escheat ; and this , nor no such number of years is a liferent , but quid juris , if a tack be set for a hundred years , which is a lifetime by express law. and since tacks were the only habile way of transmitting tiends of old , and are yet the ordinary way , it is hard that all our rights to tiends shall fall under single-escheat . by this act , all reversions , regresses , or bonds for making reversions or regresses , or assignations thereto , and all seasines are to be registrated within sixty dayes , after the date of the same ; and i find that sand. decis . fris. lib. . tit . . def . . shews that they have the same registration of hypotheques in immobilibus . observ. . this necessity of registration is only introduc'd in favours of singular successors , acquiring posterior rights ; and therefore the nullity of not registration , was not sustain'd at the instance of one who had no standing right in his person , march . . nor is this nullity sustain'd in favours of the disponer , or his heirs , for quoad them , these rights are valid without registration ; nor was it sustained at the instance of the son ▪ who got the estate dispon'd to him by his father , with power to the father to burden it with a sum , since this son was found to be no third party , february . . and for the same reason it was found , that the superiours seasine was not quarrellable by the vassal : this necessity of registration being only introduc'd in favours of such as have posteriour , heretable rights , june . . observ. . it is thought that the sixty dayes , within which seasins are to be registrated , are so to be counted only , that either the day upon which the writs are dated , or the day on which they are registrated , must be free . observ. . that since the act sayes , that these seasins and others shall be registrated in the places designed in this act ; that therefore it may be doubted , whether when lands ly within different shires , but are united , if in that case they are to be registrated in the shire where the place lyes , at which seasine is to be taken by the charter of union , or at all the places where the lands ly . observ. . though this act appoints renunciations , and grants of redemption to be registrated : yet the lords found , that orders of redemption fall not under this act , and need not be registrated , july . . but yet they found , that an infestment of annualrent could not be taken away by discharges granted by the debitor , nor by compensation of his debts , in prejudice of a singular successor , who had right to the said annualrent ; and that because , first , the design of this act appears by the narrative , to be made for security of buyers ; and buyers could not be secured , if such latent wayes of extinction were allowed . . an infeftment of annualrent is constituted by a seasine , which must be registrated ; and therefore it cannot be taken away , but by a renunciation , or some paper which must be registrated . . by the act par. . ch. . instruments of resignation , ad remanentiam , whereby rights are taken away , are by the same argument ordained to be registrated in the same way that seasins are . . though by this act there be not express mention of rights of annualrents ; yet they are comprehended under the word wodsets ; for an infeftment of annualrent is but in effect a wodset of the rents ; and though this act is only urg'd against such as annalȝie their lands ; and that it was urg'd , that an infeftment of annualrent was not an alienation of lands , but rather a servitude upon them ; yet this is a mistake , for an infeftment of annualrent is an alienation , else it could not infer recognition , as without doubt it does . as also they found , that renunciations of annualrents , which were holden of the disponer , are sufficient without any resignation , ad remanentiam ; though it was alleadg'd , that as a charter without a seasine cannot constitute an annualrent ; so neither can a personal renunciation , without an instrument of resignation extinguish it ; but because this act ordains these renunciations to be registrated ; therefore they are valid against singular success●rs , else why should they be registrated , january . . mcclelland contra mushat . since this act of parliament requires that all seasines , renunciation ; of wodsets , &c. shall be registrated , i think the booking of them is necessary : nor is it sufficient ( as some pretend ) that they are produ●'d , and ma●ked by the clerk ; because ( as they say ) the lieges can do no more , and they ought not to be punish'd for the clerks negligence ; for if this were sufficient , no singular successor could be secure , and the producer may pursue the clerk if he book them not , since the act of parliament requires actual registration . by this act all grants of redemption are to be registrated , for securing singular successors ; but seing the using an order of redemption , with a declarator thereupon , will evacuat the wodset , even as to a singular successor ; and yet he cannot know whether there be such an order used , and declarator obtain'd , it not being requisite that either of these should be registrated ; it seems that singular successors are yet unsecure : as also , since if a person obtain a decreet against him to whom he sold his land , decerning him to grant him a reversion , conform to his promise , this will be valid against a singular successor ( though the promise was not ) and yet the singular successor cannot know this decreet , nor needs it be registrated ; and therefore this register seems yet no sufficient , and adequat remedy in wodsets . observ. . that by this act it is provided , that seasins and reversions therein contained , given by provost and baillies of burgage lands needs not be registrated , neither in burgh nor shire , as was decided july . . and that seasins of lands in leith need not be registrated , though it be no burgh royal , july . . the reason of which exception was founded upon the exactness of town clerks , and the constant custom thereof , booking how soon the seasin is granted ; and so far are seasins within burgh exeem'd from such solemnities , that the lords sustain'd a seasin within town , being subscribed by the town clerk , though there was no vestige of it in the towns register , nor the notars protocal , and was latent for many years , june . . and thus singular successors were not sufficiently secur'd by this statute within burghs , for though town clerks use to registrat , yet there being no necessity upon them to registrat , and the seasin not being annulled for not registration ; it follows clearly that there is no security ; and therefore by the act par. ch. . this is alter'd , and the necessity of registration is thereby extended to seasins within burgh , and to all other writs , which by this act must be registrated . the form us'd in loosing arrestments of old , was by the messengers giving a testificat under his hand , that the arrestment laid on by him was loos'd ; this being too great a trust for a messenger , and they receiving oftimes irresponsal cautioners . by this act it is ordain'd , that arrestments shall be loos'd only by letters on bills past by the lords , which is now observ'd , and caution is found to a particular servant in the bill-chamber , to whom the trying that the caution is sufficient , is referr'd , and the ordinary way to hinder an unsufficient cautioner , is by getting a warrand in praesentia from the lords of session , for that effect , after presenting whereof to that servant , if insufficient caution be receiv'd : the lords will give warrand to arrest de novo ; but if the caution be once found , and the letters exped ; the lords will not allow upon a bill , arrestment to be made de novo , nor recal their letters , though the caution be insufficient , the clerk of the bills being answerable by his office for the sufficiency of the caution . this act grants power to all who are infeft in ●o●●est●ies to judge such as shoot and kill vennison , and wild-fowl therein , and that by an inquest , which seems to exclude all other wayes of tryal ; for inclusio unius est exclusio a●●●rius ; and this inquest was ordain'd to prevent the partiality , and passion of the heretor . this act punishing drunkards by sining , is not well enough observ'd , though it be renew'd act par. ch. . it seems by this act that the kirk is regulariter , founded in the judgeing and sining of drunkards , though it may be alleadg'd that this were to secularize too much kirk sessions , which is properly an ecclesiastick judicature , and by the commission granted to the justices of peace ; the justices seem to be made the only judges , as appears not only by the instructions given to them , but by the said act sess. par. ch. . though it be alleadg'd that kirk-sessions have likewise a cumulative jurisdiction for punishment of all scandals ; for which the act sess. par. ch . is alleadg'd , and the constant practice of the whole nation ; and it was found by the council , may . the kings advocat contra the justices of peace of dumfermling ; that the kirk-sessions might uplift such fines as were voluntarly pay'd to them for such scandals , without being countable to the justices of peace for them . the difference betwixt a caulp and hereȝeld , is that a caulp is is the best aught , or beast that a man has , which is due to the chief , or master , after his death for protecting his bairns , given by express paction ; whereas a hereȝeld is the best beast due to the master only by law , after his tennents death : caulps are here discharg'd , but hereȝelds were allow'd , quon : attach . cap. . but it would seem that hereȝelds , and all taking of the best beast is discharg'd by this act , albeit indeed they are not . this act is explain'd in the act par. ja. . to which is to be added , that by this act , the relicts and bairns of notars being oblig'd to bring in their protocals to the clerk-register within fifteen dayes , after any notars decease ; the register uses to appoint a deput , call'd now , the clerk of the notars , who draws their bill , and receives caution from them ; and is by his admission oblig'd to do diligence to mark the books of notars , and to receive band for their returning their books ; and therefore sir william primrose , for not doing diligence , was depos'd upon a bill to the lords , february . though he alleadg'd that the wives and bairns only of the notars , were oblig'd to bring in their protocals , but not he , and he was content for the future , to follow what instructions should be given him . king iames the sixth , parl. , there being a general-assembly held at pearth in august . by hadingtoun , southesk , and scoon , as his majesties commissioners ; there were five articles therein past , in order to uniformity with england , viz. kneeling at the sacrament , privat communion , privat baptism , confirmation of children , and the observing some festival dayes , for conformity with the church of england , as far as was possible ; which articles are here ratifi'd in parliament ; nor is there any standing law made since to abrogat them ; albeit for peaces sake , they have not been much observ'd . vid. observ . on act par. ja. . supra . in this act it is warranted , that such as compris'd great estates for small sums , did notwithstanding , possess the whole rents for payment of their small annualrent ; and therefore to correct this , it is ordain'd by this act , that the comprizer shall impute in payment of his principal sum , the superplus of the rents of the lands intrometted with by him , and the true reason of the former custom was , because by the act par. . ja. . the lands comprized were to be adjusted by the sheriff , with the sums comprized for , and so the rent was at first but answerable to the annualrent , though thereafter all being comprised , the compriser appropriated all the rents , without imputing , as said is . observ. . that this act makes only the compriser lyable for his actual intromission ; and it has been found that the compriser is not bound to intromet : but yet this is so severe to the poor debitor , and the other comprisers , all whom the first compriser may debar , and so suffer the tennents to bankrupt , and the lands to become waste ; that therefore if a compriser once intromet , he is bound to continue his intromission ; and where there are tacks standing , he is bound to do diligence , february . . or where there are moe comprisers , the lords may force the first compriser to do diligence , or if he do not betwixt and such a time yearly , they may allow access for the second to enter to the possession , february . . july . or if the first compriser exclude any diligence that the second is using , he will eo ipso be lyable thereafter to do exact diligence . observ. . by this act it is declar'd , that upon payment of the principal sum and annualrent , and the expence bestow'd by the compriser , in passing and obtaining infestment together with the annualrent of the said sums , and the necessary expences bestow'd in leading the comprising , that then the comprising shall expire ipso facto ▪ that is to say , by way of exception , without declarator , though ordinarly an order of redemption be us'd ; and not only does payment , or intromission with the mails extinguish the comprising , and prove against singular successors , but even any acknowledgement of payment by the leader of the comprising will extinguish the comprising against those singular successors , july . observ. . that the comprizer is to get allowance of a years duty , as due to the superiour by this act , and though he get himself entered for less by the superiour than the years duty , yet he will get allowance of the full years duty that was due to the superiour , whose gratuity will be of no advantage to the debitor , july . . observ. . that by this act , what is pay'd to the superiour bears annualrent , as do the necessary expences ; but it may be doubted , if annualrent be due for sheriff-fees . observ. . that comprisings are not to run against minors , but that it is lawful for the minor at any time within the age of twenty five years to redeem , which priviledge was found not only to be due to minors when the comprising is led against themselves ; but even when a minor has right to the legal reversion , he being himself a second compriser ; for even in that case , a minor having led a comprising may be prejudged as well as the minor against whom the comprising is led , there being the same parity of reason in both ; and though this be not clear by the first words of the exception : yet it is clear by these words , and that notwithstanding of the preceeding laws and practiques of this kingdom , by the which , the legal reversion of the comprised lands expired within seven years after the leading of the comprising , from the which his majestie and estates hath by this present act and statute excepted minors in all time coming , declaring the same no wayes to run against them . observ. . that because this act appointed only the superplus of the mails and duties , which exceeded the annualrent to be imputed in the payment of the principal sum , during the seven years of the legal , but did not expresly extend this to the case of minority ; therefore it was found that minors not redeeming within the seven years , the compriser had from the expiring of the seven years , the whole rent of the land for payment of his annualrent , without imputing the superplus in payment of the principal sum , because the act corrected only that custom , quoad the legal , & leges correcti●●● non extendi debent ultra verba directa & expressa , february . and therefore by the act par. sess. ch. . this decision was corrected , and it was by that act ordain'd , that comprisers should impute the superplus of the rent , beyond the annualrent , for payment of the principal sum , not only during the legal , but during the whole course of the minority . this act extends all the priviledges granted to minors in comprisings to minors against whom adjudications are led : and from this it would seem to follow argumento hujus legis , that whatsoever is competent in adjudications , is not competent in comprisings , for else this act had been needless ; and the lords would not extend the priviledges of the one to the other in many other cases , and so would not allow the superiour to get a years duty , because the immediat preceeding act did allow comprisd lands to be redeemable upon the payment of the sums compris'd for , and a years rent for their entry : but in this act of adjudication , there is no mention of a years duty , and which therefore was thought to be of purpose omited , and so needed a new law , notwithstanding of the parity of reason , whereupon a new law was made , viz. the act par. ch. . whereby not only the superiour is ordain'd to have a years duty ; but it s expresly declar'd , that in all cases relating to superiours , adjudications shall be in the same condition with comprisings , and consequentially to this last act , it was found that the superiour might at his option , either enter the adjudger , or pay the sums for which the adjudication was led , since the act of par. ja. par. and act . appoints this in comprisings , june . . scot of thirlestoun contra the lord drumlanrig : as also upon the same reason , the lords found that the superiour was bound to receive the adjudger , though he could not produce his authors rights , debitors abstracting their writs , because comprisers are not bound to produce , february . . ramsay contra ker. nota , that comprisers intrometting , are lyable for their intromissions with the victual , according to the sheriffs fiars , and not according to the commissars ; not only because the commissars fiars are made only to regulat prices betwixt tutors and pupils , and in other consistorial cases ; but because this act sayes , as the samine were commonly sold between yuil and candlmas , in the sheriffdom where the lands ly . though regularly infeftments upon comprisings and adjudications , ought to be perfected by appending the great-seal , yet an extract of the debitors infeftment under the privy-seal , is here declar'd equivalent in so far as concerns the debitors heirs , because it is presumable that the debitor has destroy'd or abstracted the writs of the lands compris'd from him . quaritur , whether this act should be extended to adjudications , since they are not mention'd here in the very next act to the act anent adjudications . this act allowing bishops to feu out their ward-lands , is but temporary for three years , and so is expir'd , because not renew'd , and consequently bishops have not leave to feu out their ward-lands now . as ministers gleibs were to be tiend-free , so ought the soums grass that is allow'd to ministers in place of gleibs , be tiend-free . the reason given by this act , is , because the same is dedicated and appointed ad pios usus , which is no adequat , and sufficient reason , since lands mortifi'd to hospitals , are destinat ad pios usus , and yet are not tiend-free , that being a special priviledge only granted by the pope to the coelestines , or cistertians , and some few other orders ; but ordinarly hospitals and others are free from taxations , as act and act par. ch. . by the act par. ja. . deans and chapters were restored ; but by this act all the offices and dignities of the chapter are likewise restor'd , and it is declar'd , that all deeds done since the date of that act , or to be done thereafter , whereby any member of a cathedral kirk , being an office or dignitie , hath , or shall be supprest , or any land parsonage , vicarage , or other living , belonging to the said dignity , dissolved from the same without express warrand from his majesty and parliament , shall be null . for understanding this act , it is fit to know that in every bishoprick there are several dignities , allow'd by the canon law ; by which law , the word dignity is either taken largely , so as to comprehend all ecclesiastical dignities , as in cap. denique dist . but properly it imports administrationem ecclesiasticam cum honore vel jurisdictione conjunctam , gl●ss . in cap. . de consuetud . in . and generally , all such to whom the cognition of causes could be delegated , were accounted ecclesiastick dignities , cap. cum olim de offic . legat . there are in every chapter , and bishoprick with us some of those dignities , but of a different rank and jurisdiction , not only from those in the canon law , but the dignities in our own bishopricks differ from one another , though all of them agree in this , that those dignities which were appointed at the foundation of the bishopricks continue to this day , and the foundations are the rule , and are very different . the ordinary dignities common to all , are the dean , the arch-dean , the chanter , the chancellour , and the thesaurer . the office of the dean has been fully explain'd in the act par. ja. . the arch-deacon ( call'd improperly by us arch-dean ) is the archidiaconus of the canon law , who though they be inferiour to deans , yet they are in effect the bishops vicar , and have the chief jurisdiction next to him ; being in the canon law oculus episcopi , their office in that law was to examine such as were presented to the bishop , and to put them in possession of their benefice after their admission ; as also , to visit the diocy every three year , if the bishop be not present , and to oversee the manners and living of the clergy . the chanter is in the canon law called primicerius , because he is first of the order of the singers ; and by the greek church 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 his employment was to oversee such as sung and read in the church ; and with us the sub-chanter is a dignity called succentor in the canon law , and that likewise he was allow'd a dignity by the canon law is clear , innocent cap. . inter dilectos de excess . prael . the chancellor was so called , because he kept the seal of the church , cujac . ad tit . ut eccles. bon . sine diminut . conserv . he was likewise superviser of the bibliotheck of schools , and of these who taught the clergy , cap. penult . & ult . de translat . epis. & cap. veniens de reg . & trans . ad monast . in england the chancellor is in effect a church-lawyer , who judges for the bishop through the whole diocy , and is universal commissary ; whereas these only are called commissars by that law to whom the judging in particular places or cases is committed : but with us the chancellor is still a church-man , and the province of saint andrews has its chancellor as well as the special bishopricks , the bishop of edinburgh being the chancellor of the province of saint andrews . the thesaurer is he who did oversee the thesaury , and all things else belonging to the church , who in the forecited cap. cum olim , is accounted to have ecclesiastick dignity . it is observ'd by bengeus , de beneficiis ecclesiasticis , renat . chopin . and other canonists , that both the jurisdiction and precedency amongst those dignities , is now consuetudinary , and alter'd much according to the custom of the several places ; and it is so with us where they are regulated according to the special foundations or custom , if these be wanting or lost . this act is explain'd in many other acts concerning the priviledge of burghs royal. this act is formerly explain'd in act . parl. . ja. . by this act all playing at cards or dice in any inn or ale-house is discharg'd under the pain of fourty pounds , and all playing at cards or dice even in privat houses is forbidden , except where the masters of the families play ; and all playing at cards and dice , even though the master play ; and all horse-races are so far restrain'd , that the gainer cannot have action for any thing he wins above an hundred merks : but yet it was found that the loser is still lyable in payment , and therefore the kings advocat was found to have interest to compear , and crave the money to be consign'd , november . . park contra somervel . where it was debated if this was vitium reale , and might be taken from an assigney , though he knew not how the money was dew , for else this act might be eluded , by filling up the name of an assigney . by the civil law , tit. . lib. . l. . cod. de aleatoribus , he that is overcome at such games is not oblig'd to pay , and though he pay , he , or his heirs have repetition ; and by the canon law , church-men who use such games cannot be promoted to benefices , cap. . de excess prelat . but yet wagering seu sponsio was by that law allowed , l. . § . ult . ff . de prescript . verb. and so our horse-races were not condemn'd by that law , though they are by ours ; for that law did think that , nullam turpitudinem continet in se spo● sio ; nam inde rixae oriri non solent ; but our law did condemn horse-races , because they occasion'd great idleness and expence : this act is still exactly observ'd , but is not extended to other wagers , such as that ships will arrive at such a day , or in such a place , which was not found to fall under this act , which speaks only of cards , dice , and horse-races ; it seems that this act would not be extended to any other game ex paritate rationis ; but yet i find that by the late decisions of most nations , these are not sustain'd tanquam otiosi & aleatorii contractus qui nihil in se continent praeter inanem animorum concertationem , stockman . decis . . molin . tract . de usur . quest . . num . . by the civil law likewise , though wagering was allow'd , yet where either of the parties did certainly know the thing whereupon he wagered , but conceal'd his knowledge ; as for instance , if a man should wager that such a man should be dead before a year elapsed , and that he knew him to be already dead , the law would not allow action upon that wager , because in effect that were to cheat , and accordingly our courts in scotland have most justly decided . wagers likewise upon the deaths of princes are discharg'd as giving occasion of jealousie ; as also wagers concerning the event of publick undertakings for the good of the countrey , such as the success of arms , &c. and that , lest men should be tempted , either to wish the armies of their native country not to prosper , or to reveal their secrets to the end they may not prosper , vid. zipeum in not . juris belli , lib. . in fin . there is such an act as ours made by lewis . of france amongst his statutes , cap. . & seq . this act is fully explain'd in act . parl. . ja. . this act is fully explain'd in the act par. ja. . this act discharging that a peck should be taken to the boll , though with consent of parties , was made to prevent extortion , upon the same ground that usury is discharg'd ; but yet it not having been observ'd for a long time , the council stopt a gift that was granted thereof , as to bygones , till his majesty should be acquainted . this act concerning dispositions made by bankrupts , is fully explained by me , in a treatise a-part already printed upon this single act. this act regulating the prices of all writs and seals , is for the most part either in desuetude , or is innovated by the act sess. par. ch. . wherein new regulations are set down ; and from this act it is observable , that the secret council may make prices in all such cases ; for this act ratifies only their act ; and though the act ratifi'd bear , this act to have been made by the secret council and session ; yet the act of parliament which does ratifie that act , ratifies it only as an act of privy council , and so insinuats that the privy council hath power to regulate both the price of session , and exchequer . these regulations of prices in our law , are like to the notiti●● mentioned , cod. de ann . & cap. lib. . tit. . quae singulis offi●iis delegabantur quibus continebatur quantum singuli pro dignitate & ●fficio pro libellis mandatis codicillis accipiendis vel insinuandis pendere quantum pro annona & capite accipere deberent . for understanding this act , it is fit to know that annualrents are only due by our law , either by statute , or paction , so that regularly they are not due otherwise . they are due by statute , either by the act of sederunt ▪ . appointing , that where cautioners are distressed , and forced to pay , they shall have annualrent from the term that they pay , though the bond wherein they are cautioners bear none ; yet this is in effect ex pacto , because it arises from the clause of relief , this being a damnage incur'd by them , or by this act of parliament , by which annualrents are due , after the party is denunc'd , though the bond whereupon he is denunc'd , bear no annualrent , upon the same ground that in the civil law usurae debentur ex mora in bonae fidei contractibus , l. . § . . ss . de usuris : so that as by the civil law they were due ex pacto vel ex mora ; they are due only with us ex pacto vel ex lege , which is the same thing almost , since lex in hoc casu apud nos sundatur in mora ; for though there may be mora sine usuris , yet by this act there are never usurae sine mora : but this denunciation must be at the head burgh of the shire where the debitor lives : denunciations at the mercat cross of edinburgh , being a warrand only for caption , but not inferring annualrent , which may seem strange , since annualrents are by this act infer'd after denunciation , because of the debitors negligence ; but the reason of the decision is , that the lords thought the debitors did not know exactly when they were denunc'd at edinburgh ; but it has been found that the debitor is lyable in annualrent , after he is denunced at the head burgh of the shire , though the horning be not registrated , since the act only appointed denunciation ; and yet there can be no caption till the horning and executions be registrated ; and thus it is clear that caption , and payment of annualrents are very different effects of a horning , since sometimes caption will follow where annualrent cannot , and sometimes annualrent will follow , where caption cannot , february . . smith contra wauch . annualrents are sometimes due , without either express law , or paction , because of the tacite , and presumable consent of the party ; as if a party pay annualrent for one term , or if he promise to pay bygone annualrents , though he promise not for the future ; yet january . . hume contra seaton the lords found that he ought to pay constantly annualrent for the future , though the obligation did bear no annualrent : or from the principles of natural equity , as in the price of lands , which pay annualrent , though none be pactioned , because the buyer has the rents of the lands : or in tochers , because they are given ad sustinenda onera matrimonii , and the husband intertains the wife : or where the sum is ordain'd to bear annualrent after her marriage , to whom it is left quo casu , before marriage the lords found that annualrent was due , since matrimonia debent esse libera ; but yet regulariter , annualrent is not due in cases alimentary . and a father providing his daughter to a sum for her portion , without mentioning any thing of annualrent ; the lords would not decern annualrent , though annualrent was only said to be omitted there , through the ignorance of the notar ; but because of the presum'd will of the father , they modifi'd the aliment equal to the annualrent : but so unfavourable are usurae usurarum , call'd usurae judaicae by the doctors of the civil law , that an obligation to pay annualrent for annualrent , if it were not pay'd at the term , was not sustain'd , though it was alleadg'd that here pactum & mora , were joyn'd with equity , the woman to whom they were due , being a poor widow , who behov'd to borrow money to live upon , if her annualrent were not pay'd , and to pay annualrent for that money , which she so borrow'd , january . . lady braid contra the earl of kinghorn . it is fit to know that the statute . robert . appointing annualrents not to run against minors , is now in desuetude , though it would seem reasonable , that their mora should not prejudge them ; but minors money do still bear annualrent by our law. the king uses to pay annualrents for the ballance of his accounts de facto , but is not oblig'd thereto by law. this act is explain'd , crim. pract . tit . falshood . nota , that usury is excepted from this commission to uplift money , due by penal statutes , &c. ergo , acts against usury seem penal statutes . it is observable , that though by this act it be declar'd , that commissions for penal statutes be not put to execution , till they be authoriz'd by the lords of secret council ; yet this is too much in desuetude ; but the lords of secret council do use to discharge them , till they acquaint the king. the laws of the twelve tables , contain'd several sumptuary laws , though there was then little luxury , and particularly at burials : and saint chrisostom condemns feign'd mourners , whom we call saulies , because they pray for the souls of the dead . vid. act par. ch. . this act appointing houses in edinburgh to be sklated , and letters of horning to be direct to that effect ; shews that the parliament may dispose upon privat estates , ob bonum publicum , vid. act par. sess. ch. . it may be argu'd from this act , that if the town of edinburgh could have made such acts by their own authority , this act had been needless . this act is explain'd in the act par. ja. . this act is explain'd , crim . pract . tit . usury . this act discharges any man to hunt or hauk at any time , who hath not a plough of land in heretage , under the pain of an hundred pounds , but it is now in desuetude . k. charles i. parliament i. king charles the first having come to scotland to be crown'd , in anno . the parliament does by this act , grant him , not only a subsidie upon the land-rent ; bu● likewise the sixteen penny of all annualrents , the annualrent being then at ten in the hundred ; but because the annualrent was thereafter brought down from ten to six : therefore by the act par ch. . it is declar'd , that the said six of the hundred , shall be free of all retention , and other publick burdens whatsoever . there is no immunity allow'd by this act , to any from this taxation , save the ordinary lords of the session , and mortifications to universities , colledges , and hospitals ; and this was the first time the lords were separated from the advocats , and other members of the colledge of justice : and yet by the act of this parliament , all the immunities and priviledges that ever were granted to the colledge of justice , are ratifi'd ; and though it may seem that this act being posterior , derogats from the former , yet specialia semper derogant a generalibus . by this act likewise , the lords of erection are to be taxed in the same way that they were before the erection . this act is but a continuation of the first act , and shews the way of uplifting the taxation thereby given . the parliament having granted by the act par ja. . power to the king to appoint apparel for judges and others , because that act was but temporary ; they by this act continue the same to our soveraign lord and his successors , who now is ; which certainly is wrong printed , and reads ill , for the words should run , our soveraign lord that now is and his successors . observ. . that acts referring any thing to the kings majesty , and not mentioning his successors , are but temporary , else this act had been needless . obs. . that these erre who think the parliament cannot delegat their power ; for in the former act and this , it is clear that the parliament did delegat this power ; and it is declar'd that the kings letter , regulating this affair , shall be equivalent to an act of parliament ; and this same parliament . did grant a commission to revise the laws , and did declare , that what they did should have the force of laws without reporting to the parliament : and the lords of articles , anno . did grant a commission , with a parliamentary power to some to revise the earl of argiles rights , and the commission of teinds is of the same nature . there having been great debates in anno . concerning the securing the protestant religion , it was at last agreed , that the old acts made by king james , were in themselves sufficient ; and the best that could be fallen on , as being made when there were greatest fears of popery , and by the help of which , the protestant religion grew to the consistency it is now at ; and therefore the parliament acquiesced in this short act , ratifying in general the former acts made for securing the religion , vid. act par. ch. . the former parliaments which had determined ministers stipends , forgot to provide school-masters ; and therefore the privy council did provide them by an act of council ; and though it may seem strange , that the privy council could impose a burden , though for a just cause , yet that their act is here approv'd , and the secret council are made judges to all processes concerning school-masters dues , though now the lords of the session are the only judges ; nor are there any such processes intented before the privy council . since by this act the planting of schools is refer'd to the bishop with the consent of the heretors , and most part of the paroch , it would appear that they , and not the kirk-session where they live , should have the placing of them : and albeit it be alleadg'd that the school-master of the paroch is by the act par. sess. ch. 〈◊〉 to be clerk to the kirk-session , and therefore they should have the chief interest ; yet this consequence is not sufficient , and the act whereupon it is founded , is likewise abrogated : this is conform to the reform'd church of saxonie , wherein cura scolarum pastoribus , ac superintendenti commissa est carpz , lib. . tit . def . . by this act all mortifications by gift , legacy , or otherwise , are declar'd not to be alterable to any other use , than the special use to which they were destinated by the mortifier ; but yet if that use become unlawful ex post facto , so that the persons in whose favours they were mortifi'd , be dissabled to possess , i think they should fall to the king , as caduciary , if the property has been once transfer'd , and the person upon whom it was transfer'd , became thereafter uncapable , for quae sunt nullius sunt domini regis , and thus the mortifications made to monastries , fell not back to the first proprietars , or their heirs , but to the king ; but if the property was never transfer'd , but before the first acquisition , the person to whom the same was left , was incapable to receive the right mortifi'd ; as if a man should leave a legacy to his brother , who were a capushian , whose monastry , and not himself are only capable of legacies ; it seems that if the mortifier knew , that his brother was uncapable , and that it would fall to the monastry , that in that case also , the mortification should belong to the king , and should not be retained by his heirs , as a due punishment of his fault : but if the mortifier knew not the same , it were more reasonable to determine , that the mortifiers heirs should retain the right , vid. tit. cod. de caduc . tollend . thomas mudie having left a sum to be employ'd on the building a church in the grass-mercat of edinburgh , the magistrats thereof were upon their supplication , allow'd to build a steeple , and buy a pale of bells with the money , because a church was useless wanting a stipend , though this act against inverting pious donations was objected ; for the parliament thought , that if a mortification be left , which cannot take place , either because it is against law , or is useless , the parliament may allow the same to be fulfilled by an equipollency , that being more suitable to the design of the mortifier , and better for the common-wealth , than if the mortification should become extinct , which is consonant to the civil law. george heriot , having appointed by one of the statutes of his hospital , that nothing should be altered , though for the better ; and one of the statutes bearing , none should lodge within the hospital , save students ; it was doubted , if some un-furnisht rooms which the overseers could not furnish for want of money , might be set out to such as undertook to furnish them , for some few years tacks ! and it was thought that they might , since that was no case which any wise man could think to exclude , if he had had it under his consideration , and these rooms might be separated from the hospital for that time by a vvall. the act here ratifi'd is the act par. ja. . whereby all such as trouble ministers for seeking of their livings , or siklike quarrels , and put violent hand in them , are to be punish'd with the tinsel of their moveables , albeit no slaughter or mutilation follow ; which act is here extended to arch-bishops , bishops , and all others having power to preach , and administrat the sacraments ; from which it is observable , that acts in favours of ministers , can not be regularly extended to bishops , though a bishop may seem to be a minister and more ; and because the former act mentioned only siklike quarrels , as for seeking their stipends , &c. and that this might have been eluded by forg'd pretexts ; therefore this act extends the same to all invasions : and from both these cases , it may be urg'd , that acts of parliament are stricti juris , and cannot be extended de casu in casum ; else this act had been unnecessary . observe likewise from this act , a case wherein all land-lords , heretors , and chiefs of clans , upon whose bounds the invaders of ministers stay for ten dayes , the same being intimat to them , are to be punish'd as connivers ; this act is ratifi'd by the act par. ch. . by which it is further appointed , that if any invade ministers , either in their persons , or goods , not only within their houses , but parochs , the parochioners shall be lyable to pay his damnage , if they cannot apprehend the malefactors . the parliament there likewise ratifies two proclamations of privy council , which ordain'd the same thing formerly ; and which ratification is a great proof of the councils power , in things relating to the government . teinds are declar'd to be the patrimony of the kirk ; and therefore were not annex'd to the crown by the act par. . ja. . but because the leading of other mens teinds , occasion'd great confusion ; therefore in anno . there were three several submissions made , one by the laick heretors , a second by the church-men , and a third by the burrows , wherein they refer to his majesty what should be pay'd by every heretor for his teinds , to the titular or tacks-man ; and accordingly his majesty pronunced three several decreets , dated in september . wherein he appointed , that the rate of all tiends should be the fifth part of the constant rent of what each land pay'd in stock and tiend , where the same are valu'd joyntly , and where they are valu'd a-part , the rate is according as the same were valu'd by the particular commissioners for valuation of teinds , with deduction of a fifth part , call'd , the kings ease ; and that all teinds should be bought at nine years purchase , where they consisted in money ; and if they consisted in victual , that they be first liquidat into money , and then they should be bought at nine years purchase : and if there were but temporary rights , then the price is to be abated ; or hightned proportionally ; and the said teinds being so bought , the hetors are to relieve the titulars of his majesties annuity , and ministers stipends pro rata , and in case of wrong done by the commission , there is place for appeals left to the parliament . the submission made by the bishops , did only relate to teinds , payable to them , whereof they were not presently in possession ; and therefore where any church-men were presently in possession of any tiends , his majesty by his decreet arbitral , did not ordain them to sell the same ; but they are ordain'd to sell such tiends as belong to them , that were not in their present possession , which they were ordain'd to sell at nine years purchase , with deduction always of his majesties annuity , forth of the ex●ress of the bolls and rents , arising to the submitters , after the expyring of their present tacks . the determination upon the submission of the burrows , differs nothing from the former two ; but that the saids burrows are to pay the annuity forth of the superplus of their tiends , if they should be found to exceed what is due for intertainment of their ministers , colledges , schools , and hospitals , and the terms of payment , of what is to be pay'd for these tiends , is declar'd in all the three decreets arbitral , to be betwixt yule and candlemass ; such likewise as had church-lands and tiends , erected in their favours , in temporal lordships , did grant commission to surrender their rights in his majesties hand , upon the condition therein express'd ; and therefore by this act , the commission granted by his majesty for providing the ministers serving the cure with competent stipends , is here ratifi'd , and it is declar'd , that the lowest stipend shall be eight chalders of victual , or proportionally in silver , except such particular kirks occur , wherein there shall be good reason to go beneath the same ; but it seems that by this act , they can only go beneath the said quota , where there have already valuations been led ; the reason whereof seems to be , because till a valuation be led , it cannot be known whether there be more free tiends in the paroch , then will amount to eight chalders victual : as also , because this high quota was granted to the minister , in respect of the power granted to the heretors , to value their own tiends ; therefore , where the heretors had not taken the benefite of the valuation , the minister ought not to have the high stipend : but yet the commission for plantation of kirks , do use to modifie less stipends , where it is notour , that the paroch is not able to bear the same ; and that albeit that quota was condescended on in the commission of surrenders , and is renew'd in the act of this parliament . by this act it is likewise declar'd , that where valuations are lawfuly led against all persons having interest , that the samin shall not be drawn in question upon the pretence of enorme laesion , at the instance of the incumbent , not being titular , or his majesties advocat , except in the case of collusion , which is declar'd to be presumptione juris & de jure , where the valuation is led with diminution of the third of the real rent presently pay'd , as is clear by the last paragraph of the ninteenth act. this act contains that revocation drawn by sir thomas hope his majesties advocat , which is said to be of the things which gave the first rise to our late troubles ; for therein his majesty , not only revocks all alienations of lands formerly annex'd , and all rights made to his castles , meadows , woods , and parks ; but his majesty likewise revocks all rights made to any church-lands , and all infestments of erections of abbacies , prelacies , &c. spirituality , or temporality ; and a reduction of these rights , was thereupon rais'd : notwithstanding that by the act par. ja. . his majesty to remove all mistrust , does for him and his successors , perpetually confirm all erections , confirmations , patronages of the saids whole benefices , and promises in verbo principis , never to quarrel the same . but what was done afterwards being voluntar , and upon the submission of all parties concern'd , did not at all impinge upon the former statute . it is likewise declar'd in the end of this act , that the possession of any thing hereby revocked , shall not prejudge his majesty ; and therefore it may be urg'd , that fourty years possession of any lands , or others falling under this revocation , would not debar the king by prescription ; and yet it was found , that if the king be denuded in favours of a donatar : this revocation does not interrupt prescription without a reduction . this act is wrong plac'd , for it should be after the act ; for the superiorities of kirk-lands , being by the said act , declared to belong to the king ; the saids superiorities are by this act annex'd to the crown ; but they could not have been annex'd to the crown , till they were first declar'd to belong to it . there is here a dissolution of the annexation , made in the former act , in which it is declared , that this dissolution shall not warrand the alienation of his majesties castles , woods , parks , meadows , and offices ; which is conform to the act par. ja. . whereby all dispositions of these are declar'd null ; and though the lomonts of falkland be dissolv'd particularly by the act par. ja. . yet it is declar'd particularly in this act , that they shall remain inseparably with the crown . because by the act of prescription . it is appointed that such as might be prejudg'd by that prescription of fourty years run before that act . might intent actions within thirteen years after the date of that act ; and because the king could not intent particular summons against every person , whose rights he might challenge ; therefore it is allow'd by this act , that his majesty might interrupt the said prescription by open proclamation , at the mercat cross of edinburgh , and other particular mercat crosses , where the lands lye ; and at the mercat cross of edinburgh , peer , and shore of leith , against such as are out of the kingdom . but least this interruption might have too much alarm'd the subjects : it is upon the kings own concession declar'd , that the said interruption should be restric●'d to the annulling of rights of the annext property of the crown , and the un-annex'd ; whereof account hath been made in the exchequer , and of the principality unlawfully dispon'd by his majesties predecessors , against the laws and acts then standing , and to the annulling of erections , and other dispositions of whatsoever lands , tiends , patronages , and benefices , formerly belonging to the kirk , and since annex'd to the crown , and of any other lands , or patronages , which should any way justly belong to the kirk , or crown , and of whatsoever lands and benefices mortifi'd , and devouted to pious uses ; and of regalities ; and heretable offices ; and of the change of holdings , from the ancient holding of ward and relief , to blench and taxt ward , since the year of god . years . the earl of southesk having right to the muire of montromant , as heretable forrester , intented a declarator against the adjacent heretors , concluding that they should be debar'd from pasturing therein . against which it being alleadg'd , . that they had prescriv'd the right of pasturage . it was reply'd , that the prescription was interrupted by this act. to which it being duply'd , that this edictal interruption was introduc'd without a warrant , the act . having allow'd thirteen years for the subjects to interrupt , without any reservation in favours of the king. . this is neither his majesties annext property , nor is it a part of that un-annext property , whereof the ferms , or feu-duties have been counted for in exchequer , since the year . and so the interruption which is restricted to these , reaches not to this case . . this pasturage is but a servitude , and this interruption extends only to alienations , but not to servitudes , or things of so small moment . to which it was triply'd , that as to the first , there was no necessity that there should have been a reservation in favours of the king , by the act . since the king not being mention'd in the act , which was the rule ; there was no necessity to reserve his right by way of exception ; but this act of parliament has supply'd that want , though there had been an omission in that act. to the second , it was triply'd , that the interruption . being to secure his majesty against prescriptions , upon the act . it was just that it should extend as far as the act . and these words , whereof the ferms have been compted for in exchequer , are only demonstrative , and not taxative ; the compting in exchequer being only a publick evidence of his majesties right ; and therefore , where there were other publick evidences of his majesties right , as strong as this his majesties interruption by this act , behov'd to take place , else it should not extend to secure his majesty , as to any thing , for which there were blench , or ward-holdings ; this act mentioning only feu-ferms ; it should not extend to his majesties castles , or other things , for which he gets no advantage . . this has been compted for , in so far as the sheriff compts for the blench-duties ; and southesk payes blench-duties for his forrest . . by an act of parliament in king davids time , . and another . all the kings forrestries are ordain'd not to be dispon'd without consent of parliament , and so are to be lookt upon as a part of the annext property . to the third it was duply'd , that this act , as the act . was to be extended to prescriptions ; and there were things of less consequence than servitudes secur'd against by this act , such as change of holdings , patronages , &c. this case is not decided . the reason why this act restricts it self in this clause to the year . is , because in that year was the first act for annexing any property to the crown , viz. the act par. ja. . it being alleadg'd upon this act , that the king behov'd to produce the letters of publication at the several mercat crosses , and the executions thereof , else his majesty could not have the benefite of the interruption . it was answered , that the act of sederunt of the session , did indeed appoint letters of publication ; but two years after that act , this act of parliament was made , allowing the king this interruption , wherein the parliament did certainly consider the publication , as having preceeded , & statuit lex hoc casu super praesumpto , and so the letters of publication and extentions , need not now be produc'd ; which answer the lords found relevant , november . sir william ker contra grubet and others . interruption being thus made by the king , does last for fourty years , so that no prescription can run against the king , till fourty years after the date of this act ; and that though the executions and publication required by this act of parliament , cannot be found , for every particular shire : it may be likewise doubted , whether prescription should run against the king , whilst he was out of the countrey : for which , vid. observ . on the act of prescription . by this act , the parliament rescinds all rights of regality made by king charles , king james , or queen mary , belonging to abbots , priors , or any benefic'd person ; reserving alwise to the heretable baillies , and stewarts of the saids regalities and stewartries ; their rights granted to them , prior to the saids erections ; for ordinarly even when these regalities were in benefic'd persons own hands , they made heretable baillies ; but i confess , i understand not what is mean'd by the stewart of a regality ; for stewartries and regalities are distinct and inconsistent jurisdictions ; a stewart being a judge in the kings property only , having the same power that a lord of regality has of the lands erected in the regality holding of himself , and the lands holding of him : but this act has in this follow'd the words of the act of annexation . by the act of annexation . act . all regalities belonging to arch-bishops , and bishops , were thereby annex'd , because their whole lands and temporalities were then annex'd ; but being restor'd in anno . their regalities are hereby reserv'd to them . upon the submission and surrender made by the lords of erection , and other titulars , it is condescended to by this act , that his majesty shall remain , not only superiour to the lords of erection , but even to all the vassals , who held formerly of any abbacy , priory , or other benefice erected ; and therefore , by vertue of this act , they may hold of the king , if they please , but according to an express condition in the surrender it self ; there is by this act reserv'd to the lords and titulars of erection , who subscrived this surrender , the feu-mails and feu-ferms due by their vassals , ay and till the king pay to the saids lords and titulars of erection , a thousand merks for ilk chalder , or an hundreth merks of feu-duty , payable to them , for there is nothing allow'd to them for the service of tennents ; though the lords of erection did not expresly reserve to themselves the casualities that might fall to them by their vassals , during the not redemption , for they reserv'd only their feu-mails , and feu-ferms ; since inclusio un●us seems to be exclusio alterius ; and the superiority being by this act declar'd to belong to the king , the casuality should follow the superiority ; yet by a decision , the of july . the lords found , that the lords and titulars of erection , had right to the casualities of these superiorities , ay and till they be redeem'd ; but by the act par. ch. . it is declared , that the feuars shall be bound to make payment of their feu-ferms and duties contained in their infestments , to the lords of erection , ay and till they be redeemed ; but it is not clear whether escheat and non-entry will belong to the king , or feuars , except it be comprehended under the general word duties . though the feu-mails and feu-ferms be reserv'd to such lords and titulars of erection , as subscriv'd the surrender , so that it may seem necessary to prove that these who seek feu-duties , did subscrive , or else that these should belong to the king : yet because the surrender cannot be found , the lords found it sufficient , that the titular acknowledg'd the kings right , conform to this act : but they found that they had not right to the arrages and carrages of these kirk-lands , because by this act , all the rents and duties are declar'd to belong to the king , and the reservation in favours of the superiour , is only of feu-duties , if they found no abatement of the feu-duty , in respect of vastations , since the feu-duties were small , and the feuar might have gain'd by prior and subsequent years , june . . watson contra elleis . because the superiorities of these kirk-lands , is by act declar'd to belong to the king ; therefore the lords of erection cannot pursue a reduction of these feus ; nor is the concourse of his majesties advocat sufficient , except there be an express warrand under the kings hand for that effect . albeit it be uncontroverted by this act , that the king has no right to the feu-mails , and feu-ferms , due by the vassals of erection , until he redeem the same , as said is ; yet it may be doubted , whether the king has right to the feu-mails , and feu-ferms of the lands , which pertain'd in property to the lords of erection , before the said surrender , and which were mentioned in the old infestments , before the date of the erection , and that without paying for the saids feu-ferms , and redeeming them as said is , as he is oblig'd to do in the case of the feu-ferms , due by the vassals of erection : and it may be urg'd for the lords of erection , that the king has not right to the feu-ferms of their proper lands , except he redeem them ; and that because , . the act of parliament is relative to the submission made by the lords of erection , whereupon the act proceeds ; but so it is , that by the submission , they resign the superiorities , reserving only to themselves the feu-duties , till they receive satisfaction ; but it is expresly provided , that under this resignation , their proper lands should not be comprehended , but that they should hold the same of his majesty , as the same was holden before the date of the erection ; and so the meaning is , that though they should hold the same in feu , yet they should not be oblig'd to pay the feu-duties , till they receive satisfaction . . it were absurd that the lords of erection should not quite the feu-duties of their vassals , till they receiv'd satisfaction ; and yet they should be oblig'd to quite the feu-duties of their own proportion , in which they had far more interest , than in the lands of their vassals , without any satisfaction . . custom is the best interpreter of law , and by the general custom of the nation , the lords of erection have never counted for the feu-duties of their proper lands . . there being a reservation made in the first part of the act , of the feu-duties only in case of payment ; the reservation in the second part of the act , must in annalogie of law be constructed to be burden'd with the same quality , except the contrary were expresly declar'd in the act. but on the other side it may be more strongly urg'd for the king , that he has right to the feu-ferms of these their proper lands immediatly , without any satisfaction , and that for these reasons ; . because by the act of parliament , they are expresly to hold their proper lands of the king , and to pay him the feu-duties mentioned in the old infestments , without any clause obliging the king to make satisfaction ; ergo , the king is not oblig'd . . the parliament having had that reservation , of making satisfaction under their view , in the case of the vassals , they had certainly renew'd it in the immediat subsequent case of the property , if they had not expresly design'd the contrary . . by the charters granted under the great seal , to the saids lords of erection , since the surrender , and this act of parliament , they are expresly by different reddendo's made lyable , both to the general blench duty , due for the whole lands of the erection , both property and superiority , and for the feu-dutie of their own proper lands : ergo , this feu-duty of their proper lands , is due by their charter , which is a feudal contract , and that without any reservation of payment . . the blench-duty of the erection , and this feu-duty is due upon different accounts : ergo , the payment of the blench-duty is not sufficient ; for the blench-duty is due by the lords of erection , for the interest that they have in the vassals lands , and for the tiends , and for the property that was feu'd the time of the erection : whereas this feu-duty is due only for their own proper lands feu'd out before the erection . and to the contrary objections it may be answered , that acts of parliament are not to be extended de casu in casum , especially in such favourable cases as this , which tends most ungrately to take from the king a part of that which himself gave freely . . there was very good reason why they should be lyable to pay the feu-duties of their proper lands , without any satisfaction ; because the king having rais'd a reduction of all the saids erections ; the lords of erection did redeem themselves from the hazard of this plea , by this surrender ; and the reason why the quality of satisfaction was adjected , as to the vassals , and not as to the property , was , because the lords of erection had no interest in their vassals lands , but the feu-duties ; and so it was fit they should get a satisfaction for these ; though the satisfaction was made easie for the king : but as to their proper lands , it was just , because of the great advantage they had by them ; and that they were by this act secur'd in the property of them . it was just that the king should get the feu-duties without any acknowledgement ; and without this the king had got nothing for securing them , when he might have with success quarrell'd their rights ; and the pretence of the vassals , not having pay'd these feu-duties , for their proper lands formerly , is of no import , since the negligence of the kings officers cannot prejudge him ; and the times were rebellious , since the year . nor is this true , though it were relevant ; for the earls of roxburgh , and others have pay'd . because these arguments and difficulties gave some colour to the lords of erection , to think that they were not lyable , therefore they us'd to get ease as to bygones ; but they are made lyable still for the future , in the payment of these feu-duties . the superiorities belonging to bishops and their chapters , is reserv'd to secure them against the annexation , . and their superiorities , are likewise reserv'd from the annexation mention'd in the tenth act of this parliament . some think it fit for his majesties interest , that these superiorities should be redeem'd ; for he might thereby have a great and sure revenue , and a great dependence of vassals ; and it seems also fit for the interest of the poor vassals . his majesty having oblig'd so far the heretors , as to get them the leading of their own teinds , it was thought fit by this act , to give him some small interest in the teinds , viz. out of every teind-boll of the best wheat , ten shilling ; of the best tiend-bear , eight shilling ; of the teind-meal , oats , pease , and ry , six shilling ; and where the oats will not render half meal , three shilling . where the victual was of inferiour goodness , power is granted to the commissioners to modifie accordingly , and in order thereto , they did proportion the price on the several shires , which stands as a rule in the payment of annuity to this day : though it be said in this act , that the annuities shall be pay'd out of all teinds , except the teinds pay'd to bishops , ministers , colledges , hospitals , and other pious uses ; yet it was thought , january . renton contra ker. though there was no formal decision , that decimae inclusae , are lyable in payment of no annuity , for they did not belong to the titular , nor needed the heretor buy them , in contemplation of which liberty , this annuity is granted , and in effect they are likewise lookt upon as incorporat with the stock , and participating of its nature . this annuity was found to be made debitum fundi by this act of parliament , and so to oblige all singular successors ; because the act says generally , that the king shall have right to all the annuity bypast , and to come , though it be not expresly declared , that singular successors shall be obliged , as our law ordinarly uses to do , when it resolves to make any thing debitum fundi . it is declar'd by this act , that annuity shall not be annex'd to the crown , whereby the crown got a great prejudice , since thereby the king would have oblig'd every man to a dependance upon him ; whereas commissions having been granted to sell to every man his own annuity , the king made no advantage thereby . this act is formerly explain'd in act par. ja. . by this act it is declar'd , that every man shall have the leading of his own teind , the teinds being first valued ; and all teinds in scotland may be valu'd , except . where the lands are feu'd , cumdecimis inclusis and confirm'd before the year . as was found , january . . teinds belonging to ecclesiastick persons , and whereof they were in possession the time of the submission , as is clear by the foresaid determination upon their submission , conform to which by the act sess. par. ch. . all valuations led against the bishops , or benefic'd persons , being ministers , since the year . of any teinds , parsonage , and viccarage , wherein they were in possession by leading , or drawing of rental-bolls , are declar'd null ; but by a letter the . of may . it is declar'd , that where such teinds are set by bishops , or benefic'd persons to tacks-men , that eo casu the heretors shall have the buying of their own teinds , but prejudice to the bishop , &c. to enjoy the same after expiration of the tacks , as they were accustomed ; the benefic'd persons always having the prerogative of buying , if he pleas'd , and this to be extended to the heretors , and tacks-man of the teinds of laick-patrons . and conform to this , the lords of the commission decided , february . hamilton contra earl of roxburgh ; though it was there alleadg'd , that this would prejudge church-men , since it would discourage laicks to take tacks from them at due rates : but teinds holden of collegiat kirks , are subject to buying and selling , as other teinds , the . of february . though it would appear by this act , that every man shall only have the leading , and drawing of his own teind , after the same is valu'd , since the act sayes , the same being first truly and lawfully valued : yet if the heretor intent a pursuit for valuation , he will , during the dependence , get liberty to lead his own teinds , if he offer caution to pay his teinds , conform to the valuation that shall be led , july . . but this benefit of leading is only granted to heretors , by the the foresaid act ; and therefore no liferent tacks-man hath this benefit , except the liferent be constitute , by infestment of conjunct-fee , or the like , november . . neither can rentallers , or tennents crave this benefit , ex eodem capi●e , march . . it is only granted likewise to such heretors , whose teinds were drawn before , but not to these who pay'd rental-bolls , july . . and yet the contrary is found the . of july , but the heretor may have the leading of his own teinds , though he does not instruct a publick infeftment , if he shew that he is not in mora , to be infest , and that he is the person who should be infest , july . . but the teinds belonging to church-men , whereof they were in possession the time of the submission , are not to be led upon caution ; and yet by a missive the . of may . his majesty declares his favour not to be extended to their tacks-men , being laicks ; but that during these tacks , the heretor may lead , he finding caution , as said is . by the submission , the decreets following thereupon , and the express words of this act , ministers are to be provided before the heretors have liberty to buy , or value ; and therefore the titular may allocat what teinds he pleases , towards the maintainance of the minister ; and the heretor eo casu cannot force the titular to sell , february . . but though the kirk be not provided , yet the heretor may buy his teinds , if he be content to undergo his part of the augmentation when it shall be granted , the . of january . earl of hadington contra the laird of bairfuird . so that it appears , that albeit a titular may assign any one mans whole teinds towards the ministers maintainance , when there is no present provision ; yet if there be any , though it be small , he may not ; but the same should burthen proportionally , the whole free teinds of the paroch , where there is a present provision , and where the teinds are once bought , the heretor will not be burdened , as long as there is any tack-duties free in the titulars hands , february . . but the tacks-man will not be found lyable in the said relief , january . . but if there be no free teinds in his hand , then the buyers , and all the heretors must be burdened with the augmentation , january . . it seems that the titular cannot assign the teinds of one paroch for paying the stipend of another ; for by this act it is said , that the teinds shall be burdened with the stipend of the minister serving the cure of the kirk : but the commission allocats sometimes the teinds of one paroch , to make up a stipend to the adjacent paroch , if the minister of the paroch , out of which the free teinds are allocated , be competently provided ; for the commission thinks the teinds , as the spirituality of the church , to be burdenable in general ; and yet if this argument prove any thing , it will prove there can be no free teinds as long as there is any minister in scotland unprovided competently . by this act the exchequer is declar'd a soveraign court , and power is given them to pass , and discuss suspensions , and to decern in all things concerning his majesties property , and all things concerning the annuities of teind , which was the particular reason of making this act at this time ; but because of this act giving them power to decide every thing relating to the property ; therefore by the act par. sess. ch. . it is declared , that the deciding concerning the validity , and invalidity of infestments , shall only belong to the session . and whereas this act allows the exchequer only to proceed in things relating to his majesties property and others depending thereon , that act declares they have liberty to judge in all things relating to his majesties rents and casualities , as they might have done before the year . and it being doubted , whether the lords of the session were judges competent to the discussing suspensions , rais'd against the customers , by the masters of manufactories , who pretended , that as to goods imported for the use of their manufactories , they were free from custom ; the lords did justly determine , that thogh the exchequer were only judges competent to discuss suspensions , as to customs , or any part of his majesties revenue , where the same were due by a clear law , or constant use of payment ; yet the lords of the session were judges competent to clear what was due by law , and to interpret acts of parliament . nota , the act of parliament alleadg'd to be made upon the . of may . concerning the exchequer , ratifi'd by this act , can neither be found amongst the printed , nor the un-printed acts. though by vertue of this clause , and a letter from his majesty , it is declar'd that the exchequer are judges competent to liquidat wards and marriages , and that the exchequer has decided in some such cases ; yet regulariter , the session are only judges competent to such actions ; and albeit the session be only judges competent to contravention of law-borrows ; yet after the contravention is decided in his majesties favours , if the party , against whom the decreet is obtain'd , suspend the same , the charge being at his majesties instance , it ought only to be judg'd by the exchequer , that being a casuality already stated , and the point of law being already determin'd ; although it be alleadg'd , that this being a suspension of the lords of the sessions decreet , it should only be discuss'd before them ob continentiam causae . though by the . act par. . ja. . it is appointed , that all hornings henorth d ee , shall be upon no less than fifteen dayes ; yet that is to be restricted , as has been there observ'd in cases before the council ; for by this act , all charges of execution before the exchequer , are to be upon twenty dayes upon the north-side of dee , and ten days upon the south-side of dee . this act is the first commission granted for valuing of teinds , conform to the surrender , and decreets arbitral pronunced thereupon ; which commission is renew'd in several subsequent parliaments : and for clearing somewhat of the form of process before that court ; it is fit to know , that all dyets before the commission , are with continuation ; and because of their uncertain sitting , there needs no wakening ; all procurators appearing before them , should have written warrands , but this is not in observance ; but consents by advocats must be subscribed by advocats , else decreets given thereupon are null , july . . and executions are sufficient by a sheriff in that part , july . . and thereupon the defender will be holden pro confesso . the commissioners did of old , appoint sub-commissioners in every presbytry , who were to be chosen by the presbytry it self , and five to be a quorum , for trying the valuation of every mans teinds , and before them process were intented at the instance of the procurator-fiscal , or the heretors ; and their reports being return'd to the commission , were allow'd . the injunctions given to them , then were , that none should be witnesses before them who were not worth an hundred pounds of free gear ; that such as dwell within the presbytry should be cited upon ten days ; and such as were without it , upon twenty ; that the depositions should be subscriv'd by the most part of the sub-commissioners , and the clerk ; and when any man would make use of anothers servant , as a witness , that the master should produce him upon his hazard ; that where both used probation , not the greatest number , but the clearest deponers should be prefer'd ; and no witnesses to be receiv'd but only ten for each party , which was thereafter expon'd to be ten for each room , july . . the probation is oft-times allow'd to both parties in this court , and where it is single , it is call'd the prerogative of probation , and is much contended for ; wherefore it is thus regulated , viz. either the teinds are drawn ipsa corpora , by titular , or tacks-man , and then they have the sole probation allow'd them , to prove what the teinds were worth , they proving that they led seven years of fifteen before the year . and though after so long a time , this cannot be proven ; yet the proving immemorial possession is found equivalent ; or else they have rental-bolls pay'd them , & eo casu they have the sole probation likewise , they proving twenty years possession , of uplifting rental-bolls , condescending upon the quantity , and quality : or in the third case , the heretor has tacks of their own teinds , for payment of silver-duty : and then there is joynt probation allow'd , both to heretor and titular ; albeit the heretor have the benefit of a conjunct probation ; yet he may refer the worth to the titulars oath , before witnesses be receiv'd , but not after , february . . but where the titular has the sole probation , the heretor cannot eo casu lead any probation of the stock , except it be for certification , id est , except where the heretor summons the titular , who was in possession of drawing of the teind , to prove the worth thereof , with certification to him , if he appear not , the heretor will prove the worth of the stock , quo casu the fourth part is declar'd to be teind , february . . and february . . where the stock and teind are valu'd joyntly , the teinds are made the fifth part ; but where the titular and tacks-man has the sole probation , the heretor has the fifth part down , as the kings ease ; and therefore where the titular takes a dyet for proving of the teind by it self , the heretor may take the same dyet to prove the stock , that in case the heretor fail , he may have the kings ease , july . where there is joynt probation of stock and teind , the present rent should be proven , as well as the rent in all time coming , else the same is null , january . . there are two dyets granted for probation in this court ; and if the first be not made use of , the term may be circumduc'd , and the second will not be granted , february . . and though diligence be extracted after the dyet ; yet if it be extracted before the other party crave the term to be circumduc'd , the same will be sustain'd , november . . by this act also it is declar'd , that where valuations are lawfully led against all parties having interest , and allow'd , they shall not be call'd in question at the instance of the minister , not being titular ; nor at the instance of his majesties advocat , for his annuity , except the collusion be proven , to have been to the diminution of the third of the just rent presently pay'd ; and therefore all reductions upon this head , are at the instance of his majesties advocat ; but it may be doubted , whether his majesty has any interest , where the party has bought his own annuity ; though it may be alleadg'd , that even in that case , the decreet is reduceable , together with the alienation founded thereupon , if subsequent to the decreet , because the exchequer has sold upon a mistake , occasioned by the collusion , albeit regulariter with us , venditions are not quarrellable , as in the civil law , though made infra dimidium . by this clause it is likewise declar'd , that this collusion shall be probable by the parties oaths , and thereupon it has been doubted , whether this clause be exclusive of other probation , and in meldrums case against tolquhon , before the commission in january . it was found , that a decreet of valuation might be reduced upon this clause , if it were proven by witnesses that the valuation was led far within the third of what the teinds were then worth . these acts are but temporary . by this act the liberties of the colledge of justice are restricted to the senators of the colledge of justice ; and this is the first time that the senators of the colledge of justice were divided from the other members ; but thereafter the priviledges of the senators are communicated to advocats , writers , and others , by the act par. ch. . vid. observ . on that act. this act anent the priviledges of royal burrows , is innovated by , and therefore shall be explain'd in the act sess. par. ch. . this act gives a very large commission to the lords of secret council , to grant to the justices of peace , and constables , whatever power the parliament could have granted them ; but this being in effect but a commission , may be alleadg'd to expire with the king and parliament who gave it , as all mandats last no longer than the mandator ; and the power being given to the privy council indefinitly , without adding , for the time being ; it may be urg'd , that it could last no longer than that commission of council ; and from this many new doubts may be started , which shall be elsewhere considered ; but however the council does still grant instructions by vertue of this act. this act impowering the lords of session to exact pennies of the pound of all sums decern'd by them is now obsolet . this act concerning the priviledges of baronets , is fully explain'd in my treatise of precedency ; but from this act it is observable that the convention of estates have been in use to ratifie and approve general orders granted concerning honours ; though it be generally believ'd , that the convention of estates can only grant voluntary taxations , and nothing else ; and i formerly observ'd that they were in use to regulate the mint also . vid. observ . on act par. ja. . though by this act the clangrigor were abolish'd , and they ordain'd to alter their sirname , because of their bangstry ; yet because of their good services done to his majesty , during the late rebellion , they were restor'd in anno . it has been always believ'd , that no clan or family can change its sirname in scotland , without express act of parliament , or act of council ; for that might occasion great confusion , and might be a ground of cheating the people in their evidents and securities . but any privat man may , as we see daily in tailies ; and it does not follow , that because the parliament only can force men to change their sirname , that therefore they cannot do it voluntarly themselves . by this act it is expresly declar'd , that because particular acts of parliament , and acts of ratification , are made without hearing of parties , that therefore the lords of session shall judge in these cases , without respect to those acts , according to the privat interests of parties . the immediat occasion of making this act , was the case betwixt john stuart of coldinghame and the earl of hume , which was this . the earl of bothwel having been forefaulted , the priory of coldinghame was dispon'd by the king to the earl of hume , which earl of hume , set in tack a-part of the teinds of the said priory , to the laird of wedderburn , but thereafter the earl of hume having entred in a transaction with john stuart , son to the earl of bothwel , he suffers by collusion , a decreet of parliament to pass in anno . whereby john stuart was not only re-habilitat as to his blood , but the forefaulture rescinded , in so far as concerned his right to the priory of coldinghame , upon a pretext that he had a commendam of it settled in his person , before his father was forefaulted , whereupon dowglass of evelaw , pursuing the laird of wedderburn for a spuilzie of teinds in anno . he obtains a decreet , notwithstanding of very unanswerable grounds , then alleadg'd ; because the lords of the session would not call in question the act of parliament . notwithstanding of the act salvo subjoyn'd to the acts of that parliament ; for the lords found , that the session as an inferiour judicature , could not canvass special acts of parliament ; but because the subjects might be extreamly prejudg'd in their privat rights by such acts of parliament ; therefore the foresaid claus● was inserted in this act , and that it might extend to this case , though anterior it is expresly declar'd in this act , that this was the meaning of all former acts salvo ; and accordingly the lords of the session did in february . repone the laird of wedderburn to debate upon his just rights , notwithstanding of the act of parliament . by this act several privat rights and ratifications , are excepted from this act salvo ; but since the act salvo proceeds upon the principal of natural reason and justice , it seems that even these exceptions are questionable , for else the act salvo should signifie nothing ; for these who had the interest to obtain privat acts of parliament , would likewise have the interest to get them excepted from the act salvo ; and upon this reason it was doubted , and not decided , whether exceptions from the act salvo , made in privat rights , though not repeated in the act salvo , were sufficient to secure these rights against the act salvo ; for though it might be alleadg'd , that in these there is a speciality from this case , since the act salvo being posterior , and simple , annuls and derogats from the former reservation ; yet even there it may be alleadg'd , that it cannot derogat , since in the former special act , the parliament declar'd their special inclination , that it should not derogat . nota , the act salvo jure is never voted in parliament , because it is but an act in course ; and for the same reason , ratifications are not voted now , since no man can be concern'd in either ; albeit of old , i find that ratifications were past in parliament in the form of decreets , and so must have been voted ; but it seems strange , why acts for granting of mercats , and imposing customs for the maintaining of bridges , should not be voted : and in the parliament . the reports of the articles thereof , as to these , past the last d●y , without being voted , which was oppos'd by some as irregular ; because there the consent of some parts of the nation was requisite . but i conceive , that this likewise proceeded from the numerousness of the things that were brought in , and the general acquiescence of the members , and the time they were to sit being so short , and it seems securer to settle these by a vote . k. charles ii. parliament i. session first . albeit king charles the second did hold a parliament at saint-iohnstoun , in anno . yet this parliament , being the first after his majesties happy restauration , is by the inscription , intituled , the first parliament of king charles the second ; though that parliament . is not rescinded by the general act rescissory , which is the fifteenth act of this parliament ; nor by any other special act : and so that parliament stands still in force , so that this inscription seems unwarrantable . the rebellious parliaments in the former age , did choose their own president , though the chancellour ought to have presided in all courts , as is insinuated by the act par. ja. . but this they did , to have the president of parliament depend upon them , and not upon the king ; and therefore by this act it is declar'd that the chancellour is ratione officii , to preside in all publick judicatures where he is present . observ. . that this act says , that the lord chancellour , and such as shall be nominated by his majesty , shall preside ; and therefore if the king please , he may nominat another president , though the chancellour be present : and i find that his majesty has nominated others to preside where the chancellour was present . obser. . that though ( when the chancellour is absent ) his majesty can only nominat another president ; yet this does not exclude his majesties high commissioner from the power of nominating a president , since he has mandatum cum libera ; and middleton did nominat the earl of crawfurd to preside in this parliament , when glencairn , then chancellour , went to london . observ. . that the chancellour is to preside , not only in the parliament , but in all other publick judicatures ; and therefore though it was pretended by the thesaurer , that notwithstanding of this act , the chancellour could not preside in exchequer , though he was named in the commission ; because the exchequer was rather the kings chamberlains court , than a publick judicature , in which the thesaurer was chiefly intrusted , because he was chiefly to be answerable ; yet this pretence was groundless , since the exchequer is a judicature which hears , and discusses causes , relating to the revenue , and is declar'd a judicature by the act par. ch. . but by a letter in anno . the chancellour is discharg'd to preside in exchequer ; and this sh●ws his innate power to dispense with acts of parliament , which relate only to government , and his own service . observ. . that though by vertue of this act , it may be pretended that the chancellour may preside in the justice , or admiral court , if he pleases to be present ; yet i conceive he cannot come to any of these courts , without a special nomination : and even this act says , that the chancellour , and such as shall be nominat by his majesty , shall preside . this act likewise sets down the oath of allegiance , wherein the king is acknowledg'd to be supream over all persons , and in all causes ; which is founded upon the act par. ja. . and is the foundation of the act of supremacy ; which is the first act of the par. ch. . the parliament . had taken from the king , the nomination of the officers of state , counsellours and judges ; and therefore by this act , the power of nominating these , is declar'd to be a part of the kings royal prerogative , which is conform to the law of all nations , l. unica . ff . ad l. jul. de ambitu ▪ haec lex hodie in urbe cessat quia ad curam principis magistratuum creatio pertinet non ad populi favorem : by this act also , it is declar'd that our kings hold their royal power over this kingdom from god ; which was exprest here , to condemn that fundamental treason of the last age , which taught , that the king was subject to his people , because , he deriv'd his power from them : and from that they infer'd their power of reforming ; and at last , of deposing the king. but lest it might have been obtruded , that though by this act it be declar'd , that the king holds his power from god alone ; yet the holding it from god , did not exclude the interest of the people ; for all men hold of god , whatever they hold of others : therefore by the act of this parliament , it is declar'd , that our kings hold their crowns from god almighty alone : and lest it might still have been said , that though the king holds his power of god , yet he derives his power from his people ; therefore the convention of estates in their letter to the king , . and the estates of parliament , in the act par. ch. . anno . acknowledge , that he derives his power from god alone : and though conventions of estates cannot make laws ; yet it may be said , that they may declare and acknowledge their obedience as fully as parliaments may . observ. that these words , to hold the crown from god , is ill exprest ; for by our law , he that holds from me , holds not of me ; for a me & de me are diametrically opposit in matters of holdings . the former rebellious parliaments , especially the convention of estates , . did sit without a special warrand from his majesty ; and therefore by this act , the power of calling , holding , proroging , and dissolving of parliaments , is declar'd to be inherent only in his majestie , as a part of his royal prerogative ; and therefore the act of this parliament , annulling in special terms the said convention , . was unnecessary . i conceive that the word proroguing here , is us'd for adjournment only , though the word in its property signifies only to adjourn , so as to make all the overtures past in that session , to be null , which distinction is unknown to , and unnecessary with us . the impungers , or contraveeners of this act , are declar'd by this act guilty of treason . by this the former acts against convocations , and leagues , or bonds , are ratifi'd , and discharg'd under the pain of sedition ; and the keeping of all assemblies and meetings , upon pretence of preserving the kings majesty , or for the publick good , are declar'd unlawful , notwithstanding of these glosses , except in the ordinary judicatures . the design of which act was occasioned by , and levelled against such meetings , as the green tables in anno . whereat the nobility and gentry did formally meet in great numbers , though their papers did alwise begin ; we the noblemen , gentlemen , and others occasionally met at edinburgh . the former rebellious parliaments having rais'd armies , fortifi'd garisons , and treated with the french king , without the authority of their own king ; it is therefore declar'd by this act , that the power of making peace and war resides solly in his majesty ; and that to rise , or continue in arms , or to make any treaties , or leagues with forraign princes , or amongst themselves , shall be treason . observ. . that by this act the king is declar'd to have the only power of raising armies , and making garrisons , the subjects alwayes being free of the provision , and maintainance of these forts and armies ; and therefore it was asserted , that free quarter , except in the case of actual rebellion ▪ was unlawful , and that even then it behov'd to be warranted by a parliament , or convention , though it seems , that rebellions may be so sudden , or parliaments and conventions so dangerous , that free quarter may be warranted by the kings own authority in cases of necessity ; and if any part of scotland should rise in rebellion , it is not imaginable that they will either give quarter for pay , or deserve to be pay'd ; and so to refuse the king the power of free quartering , without parliament , or convention , in that case were to deny him the power of raising an army , without which it cannot be maintain'd . but free quarter is expresly discharg'd by the act par. ch. . observ. . some likewise think by this clause , that though the king may force towns , and adjacent countreys , to carry baggage and ammunition of his souldiers , the publick good so requiring ; yet he must pay them for it ; since by this act , the king is to pay for the provisions , as well as maintainance of the army , and to take away countrey-mens-horses without pay , is as great a tax upon them , as free-quarter : but yet our kings have still been in use , by immemorial possession , to exact such carriage without payment ; and so the only doubt remains , whether this act innovats the former custom ? and whether the subjects , not seeking payment , being merae facultatis , prescrives against them , jus non petendi ? observ. . it has been controverted , whether though by this act the king may dispose upon all forts , strengths , and garisons , if he can thereby make any privat mans house a garison ? that was not so originally , it being pretended , that if this were allow'd , no man can be sure of his dwelling-house , which is the chief part of his property ; but it cannot be deny'd , but that all houses with battlements , or turres pinnatae , as craig observes , are inter regalia ; and of old could not be built , without the kings special licence : and as to these , the king may garrison them ; for since he has the absolute power of making peace and war , it were absurd to deny him the power of garisoning convenient places , without which the war cannot be mannag'd . it having been controverted whether the earl of caithness might garison one of his castles , without express warrand from the council ; they found he could not , though it was alleadg'd that he was a stranger in caithness , and the countrey was broken : for this act of parliament having discharg'd all garisoning of houses , upon any pretext whatsomever , if it should be allow'd upon such pretexts as this , not only would the express letter of the law be overturn'd ; but all persons dissaffected might garison upon this pretext ; whereas on the other hand , there can be no inconveniency , since the council will allow liberty to garison ; and if present danger do press the heretor , he may garison his house for his own defence , till he obtain that order . this act annulling the convention of estates . was unnecessary , it being formerly annull'd by the third act of this parliament . this act declaring the league and covenant null , and the discharging the renewing thereof , under the highest perril , seems unclear , because of the indeterminatness of the punishment , and seems unnecessary , because by the fourth act of this parliament , subjects making leagues amongst themselves , or with forraigners , are guilty of treason . this act does in the first part command all jesuits , priest●● and traffiquing papists , not to say mass , and to remove forth of the kingdom within a month , under the pain of death , whereupon it was doubted , whether within that month , they could be punished with death , else this month had not only been elusory , but might have prov'd a snare , since they might have thought that this month was allow'd for preparing for their departure , and so they might have appear'd , and gone about their business in order thereto . by the second part of this act , children are ordain'd to be taken from parents , tutors , or curators , popishly affected , that they may be bred with well affected protestants , at the sight of his majesties privy council , which act is renew'd by a proclamation of council , in january . though the parliament . be here ratifi'd ; yet it is thereafter abrogated by the general act rescissory , which is the fifteenth act of this parliament , that not having been resolv'd upon till after this was past . the parliament . is by this act absolutely rescinded , and that without a general salvo , and though by the act rescissory , there is a general salvo in favours of the rights , and privat securities past in other parliaments , as is clear by the last words of the act , yet there is none subjoyn'd to this parliament . that parliament . had taken from patrons the power of presenting , they having conceiv'd it most antchristian , that the minister who was to care for souls , should be chosen by one man , and oftimes by one who would never hear him ; but they reserv'd to the patron the right of teinds , without prejudice to the present stipend ; and therefore that act is hereby rescinded , and patrons restor'd to the power of presentation : and though it cannot be deny'd , but that the people had a share in the elections , as is clear by saint cyprians epistles , yet this was when they pay'd them , and were themselves very judicious , and dis-interested in the infancy of christianity ; and before ; patrons had by founding churches , the interest they have now ; and now the people are by an edict cited to declare what they know why such a man should not be chosen : and in the reform'd churches of germany , as carpz . in his jus consist . relates , the people have vocationem ; from which the presbyterians borrow'd their word call. by this act it is declar'd , that such parsons , and ministers , as are in present possession of kirks belonging to laick patrons , shall claim no right , nor possession , but what they had before the making of this act , they being otherwise sufficiently provided . this act was unnecessary , because these parliaments are taken away in the general act rescissory . this act appoints all officers of state to take the oath of allegeance , and to assert under their hands , all the former royal prerogatives ; but now the council do put the same to all who are suspected ; and fine or banish such as refuse to take it , because the act having left to the council to put this oath to any , and having nam'd no penalty , the penalty is to be understood arbitrary . but now all who are in publick trust , take the test appointed by the act par. ch. . this act confirms all judicial proceedings , under the usurpers , except when they were quarrel'd within a year ; and this act having appointed , that within that time , the sentences of the usurpers might be quarrell'd , without suspension , or reduction ; and the writ by which they were quarrel'd , was call'd a review , which was in effect a reduction , and was like both in the name and matter , to that revisio allow'd by the civil law. the usurpers having by the example of our rebellious parliaments laid on an excise upon bear and ale , this loyal parliament did grant his majesty pounds sterling , to be uplifted yearly out of the custome and excise , in manner mentioned in the act : but it has been much doubted , whether it had not been better to have continued the excise upon the bear and ale , than to have laid it upon the malt ; for now brewers endeavour to take as many pints out of the boll of malt , as they can , which hinders much the consumption of the malt , by making the drink weak ; whereas if it had been laid upon the drink , they would have endeavoured to make the drink strong . and for which excise , the commissioners of the respective shires , are lyable personally , and they have their relief off the deficients , the goods of which deficients , are hereby to be poinded , without carrying them to the mercat cross , they being apprised at the next paroch church door , which is like the priviledge given to ministers stipends , by the act of the sess. of this parliament . though by this act the excise is laid upon the retailer of commodities ; yet by the act par. ch. . the importers are declar'd to be lyable for the same excise . after this parliament had rescinded some privat parliaments , they considered that all the parliaments from the year . till the year . were but branches of one and the same rebellion ; and therefore they did annul them all by this act , which is call'd the act rescissory : but privat parties rights , obtain'd in these parliaments are salved . in this act it is acknowledg'd by the parliament , that our kings hold their crowns immediatly from god almighty , which was done to exclude that rebellious republican , and sectarian principle , that our kings deriv'd their power from the people ; for if so , then the people might call them to an accompt , depose , or suspend them : and our very stiles , which acknowledge our kings to be by the grace of god , does convince us , that they are not kings by the people ; and therefore argentorat pag. . observes well , that formula illa quae est in titulis dei gratia , utuntur illi soli qui nulli mortalium imperium suum debent vid. obs . on the act par. ja. . this act allowing the government by synods , presbytries , and sessions , is rescinded by the act of the sess. of this parliament . this act appointing a solemn aniversary thanksgiving for his majesties happy restauration , was scrupled at , because this act did appoint it to be set a-part as a holy-day ; and therefore it was thought fit by the act of the sess. par. ch. . to renew it as an anniversary thanksgiving , leaving out the words holy-day . this act against cursing and beating of parents , is fully explain'd , crim . pract . tit . paricide . this act is explain'd crim . pract . tit . blasphemy . this act concerning casual homicide , is explain'd crim . pract . tit . homicide ; but it is fit to add here , that the rubrick of this act of parliament bearing , act concerning the several degrees of casual homicide , is very rediculous , for the degrees mentioned in the act , are casual homicide , homicide in lawful defence , and homicide committed upon thieves ; and no sober lawyer can think , that either homicide in defence , or homicide committed upon thieves , are degrees of casual homicide . by this act the whole priviledges belonging to the colledge of justice , that is to say , senators , advocats , clerks , writers , and remanent members , or whereof they have been in use , or in possession at any time bygone , are expresly ratifi'd , and that notwithstanding of whatsoever act , custom , or practice to the contrary , vid. act par. sess. ch. . where the priviledge of immunity from taxes , is only given to the lords of session . upon which act it was debated in december . whether advocats should not be free from the annuity impos'd by the town of edinburgh , since they were by this act freed from all impositions , and though by a special act of this same parliament , ch. . the colledge of justice was made lyable to the annuity ; yet they being free by this act , and the other act being but an un-printed act , and an act to which they were not call'd , their priviledge could not be thereby taken away ; albeit it was contended , that the being free from annuity was no priviledge , ever expresly declared in their favours : but on the contrary , was a debt upon them , as hearers of the word of god ; and so the parliament might very well by a general law , declare this priviledge , not to prejudge the annuities ; nor was that law concerning annuities a special , but a general law , binding all the people who came to live in edinburgh ; and therefore there needed no party be cited , nor was it necessary to the essence of an act of parliament , that it should be printed . by this act the creditors of the defunct are prefer'd to the creditors of the appearand heir , as to all execution against the defuncts estate , they doing diligence within three years after the defuncts death , which three years was found to be tempus continuum , and not utile , and that these three years did run even contra non valentem agere , december . paterson contra bruce . the reason of which act of parliament is , that it is just that every mans estate should pay his own debt , though upon the other hand it is likewise just , that in the next place , the appearand heirs creditors may likewise do diligence , even against that estate , to which their creditor may succ●ed : nor ought his voluntary lying out to prejudge them ; for which cause likewise it is , that they may charge the appearand heir to enter , and comprise , or adjudge the predecessors estate . by this act it is ordain'd , that fourty dayes after the sentence of excommunication , letters may be rais'd at his majesties advocats instance , for denuncing the persons excommunicat rebels ; the process being first revis'd by the lords of the session ; but this power of the lords of the session , being made before the bishops were restor'd , is abrogated by the act of the sess. of this parliament . by this act the person from whom goods were stollen , is to have his goods , or the value thereof restor'd to him out of the readiest of the thiefs goods , he alwise pursuing the thief to sentence . observ. . since this act reserves to the sheriff , or takers of the thief , the expence war'd out by them in taking the thief , and putting him to ●xecution . it seems that they ought to be prefer'd to the owners of the goods , though the act sayes , that he is to be pay'd out of the readiest . observ. . it may be doubted whether the justices , or the judge ordinary should restore ? and though the justices have no civil jurisdiction , yet i have seen them restore in such cases ; and this is in effect an incident jurisdiction , ●b continentiam causae . observ. . that it has been doubted , whether third parties buying the goods , though in a publick mercat , are oblig'd to restore . this act pardoning penal statutes , seems by a mistake , to except usury ; for usury is properly a crime punishable by all law , at all times : whereas a penal statute is properly a statute , which punishes a delinquency , that is only punishable upon some occasions by an arbitrary punishment ; and therefore acts of grace , or general indemnities , discharging the execution of penal statutes , should no more be extended to usury , than it should be extended to murther , or adultery ; and usury is by the act of indemnity , which is the act sess. of this parliament , excepted from that indemnity , amongst murderers , thefts , and other crimes of that nature , and it was excepted only in this act , ad majorem cautelam , because the chancellour had then the gift of usury . what are properly counted penal statutes , may be seen act par. ja. . where amongst other crimes , usury is ordain'd to be punish'd , and not to be pardon'd as a penal statute ; and if usury fell under penal statutes , it would very much encourage usury ; for men would still expect a discharge of it , because penal statutes are frequently discharg'd : but yet the lords in the case betwixt the laird of haining and cruick , found that usury was discharg'd by the act of grace . because of the special conception of that act. by this act the quots of testaments are taken from the commissars ; but upon the restoring of bishops , this act is abrogated by the act and sess. of this parliament . this act is formerly explain'd act par. & act par. ja. . this act is formerly explain'd in the act par. ch. . by this act all comprisings are to be allow'd within sixty dayes after the date thereof , with certification , that if they be not allow'd , and recorded within that space , a posterior comprising first recorded , shall be prefer'd thereto ; and upon the of june . the lords upon a supplication , ordain'd a comprising to be allow'd , though the person against whom the comprising was led , was dead , and the sixty dayes were expir'd ; and found that notwithstanding thereof , it should be prefer'd to a comprising , whereof the allowance was registrated after its registration . observ. . that by this act a comprysing is not declar'd null , for not being allow'd , and so was not excluded by a posterior apprysing , first allow'd ; but both were brought in pari passu ; which last part of the decision may seem strange , since it is expresly declar'd by this act , that the not allowance shall be with certification , that a posterior comprising , first allow'd , shall be prefer'd according to the date of the allowance , november . . maxton contra cunninghame ; and so they could not come in pari passu . but the reason of this decision must be , that by the posterior act . of this same parliament , all comprysings led within year and day of others , are ordain'd to be brought in pari passu : and these comprisings have been led within year and day , though the decision mention not this . and this i find decided , july . . stuart contra murray . observ. . that if the appryser has obtain'd infeftment without allowance , he will be prefer'd ; because ( as i think ) his infeftment being registrated in that case , supplies the not registration of his allowance , and certiorats singular successors sufficiently . observ. this act narrats , that it was ordain'd formerly by act of secret council , that the whole comprisings , and not a breviat , should be registrated : which not being authoriz'd by any law , or act of parliament , is therefore discharg'd ; from which it appears , that the secret council use not only to make acts relating to government , or to regular prices of writs , as appears by the act par. ja. . or to discharge bakers , and candle-makers to keep their broom-stacks , or melting-houses within towns , as in the act par. ja. . but even to make acts relating to registration , and competition of writs ; which though the parliament does here openly condemn ; yet tacitly this act declares their act was no law ; and they could less have made such an act , than the lords could have made an act of sederunt , ordaining seasins within burgh to be registrated , which they found only the parliament could do ; and it is observable also , that this act of council did therefore soon run in desuetude ; and the parliament confirms the contrary custom . observ. . this act narrats that by a custom , allowances of apprysings did contain , and express the names , and designations of the apprysers , the names of the defenders , ( whereas it should have said debitors , though the debitor be a defender in the comprysing , which is a decreet ) the debts for which the comprising is deduc'd , the messengers , and the clerks names , the date of the executions , the witnesses names thereto , and the superiours names ; which custom being authoriz'd by this act , it may be doubted , if the omiting any of these particulars in the registrated allowance , would annul the same , since the act does not subjoyn an irritancy . the difference concerning heretable and moveable bonds , is fully explain'd in my institut . part . tit . . by this act , these who marry themselves clandestinly , or inorderly , are to be imprison'd for three moneths , and beside to pay , each nobleman a thousand pounds ; each baron , and landed gentleman , a thousand merks ; each gentleman , and burges , five hundred pounds ; each other person , an hundred merks . observ. . the want of the parents consent , or of the consent of others having interest , seems by the narrative , to infer the clandestinness of the marriage : but yet by our practique , children marrying without the consent of their parents , if they be of age , and the marriage otherwise regular , they are not punishable ▪ wherein we seem to agree rather with the counsel of trent ▪ than either with the law of god , exod. . and . numb . ▪ deut. . . or the civil law , institut . de nuptiis & l. . ff . de ritu . nupt . observ. . that it may be doubted , whether since this act appoints no punishment to women ; if a noble-woman being an heretrix , marry a gentleman disorderly , she may be punish'd as a noble-woman , or he only as a gentleman ; and i think she should be punisht as a noble-woman , having precedency as such . observ. . that it has been doubted , if an expectant having power to preach , and being appointed a presbyter , but having no settled kirk , and marrying persons , the marriage can be punished : or if such as marry by a lawful minister of another paroch , without warrand , either from the bishop , or the minister of their own paroch , may be punished by this act. observ. . by the act sess. par. . ch. . such as enter into these disorderly marriages , lose their jus mariti , or jus relictae , by and attour the penalties here express'd . observ. . that the marrying in england , or ireland , without proclamation of bonds in scotland , and against the order observ'd in this church , infers the former fines ; but the marrying without proclamation of bonds , is not per se sufficient ; and therefore if there be a dispensation from the bishop , quaer . if the marriage is not clandestine , and it seems it is not , for the bishop may be mis-inform'd , as if the woman wanted parents : and by the narrative of this act , the want of the parents consent is made an impediment , as well as the having granted a prior promise to another ; and therefore , as the bishops warrand should not defend in the one case , so neither should it in the other ; but it is still peri●ulo petentis , else bishops should innocently become the instruments of robbing us of our children , and estates , and of taking them away in such manner , as that parents can neither see their daughters provided to competent jointures by the husband , nor the husbands who marry them , sufficiently provided by the father in law. quaer . . whether is the consent of the mother necessary when the father is dead ; and i conceive it is , especially when she is intrusted by the father , and the child stays with her ; for though the daughter be not in potestate materna ; yet she is a parent ; and this act requires the consent of parents ; and the instituts tell us , that naturalis & civilis ratio requirit consensum parentum : nor can it be deny'd , but the mother has an equal natural relation ; and by this interest , law incourages , and rewards the mothers pains . quaer . . what if the parents refuse reasonable offers , and yet the child is marriageable . to which it is answer'd , that the consent should be first askt , and why they refuse , that the judge may , when the parent thereafter complains , consider if the parent was culpable in refusing his consent . quaer . . if the being married by their own minister , without proclamation , or dispensation from the bishop be sufficient , and though the minister have a warrand from the bishop ; yet by act of synod , he is discharged to marry in a privat house , except the warrand dispense therewith expresly . this act shall be explain'd in my observations on the act par. ch. . by this act it is ordain'd , that none shall have right to any benefi●es , till they take the oath of allegeance ; and if the patron omits this , not only is the presentation to be null ; but the right of patronage as to that vacancy , belongs to the king. this act is formerly explain'd in the act par. ja. . by this act , his majesty and parliament having erected fishing companies , do declare , that salt , cordage , hemp , &c. imported for the trade of fishing , shall be free of any custom or imposition : but yet by the act of the par. ch. . the importers of forraign salt , are to give security for payment of the excise , whether the salt be employ'd for salting of fishes , or not ; but there is allowance to be given to the exporters , for what shall be prov'd to have been imploy'd upon fishing . it is observable likewise from this act , that his majesty by his soveraign authority , and prerogative royal , without speaking any thing of the consent of parliament , in this clause , d●clares that the ships , and furniture imploy'd in fishing , shall not be arrestable by creditors , nor the persons pursu'd before any judicature : and it may be doubted how this is consistent with the property of the subject ? or whether this would defend against criminal pursuits . the word attatchments here exprest , properly includes criminal actions , sed nulla excusatio prodest adversus pracepta ei qui cum leges invocat adversus eas committit l. auxilium , ff . de minor in ●in : and though it may be answer'd to the other doubt , that the parliament consented to this lessening of property ; yet it is clear , that the prerogative , and not their consent , is only mention'd , except we construct their not opposing it to infer a consent : and it may be rather urg'd , that the parliament has acknowledg'd , that this is the kings prerogative ; but if this be , the king may discharge judges to proceed in any civil action . this act incouraging manufactories , by discharging the custom , or excise , due upon the materials , to be therein employ'd , is much lessened by an act of exchequer , whereby it is declar'd , that these materials are only to be free , which the masters of the manufactory bring home upon their own risk ; because this act , and the act , in favours of sope-work , does say , that shall be imported for the use of manufactories ; and another decision of exchequer , whereby it is declar'd , that these are only to be accounted priviledg'd manufactories , where the species of the thing manufactored is altered ; and therefore it was pretended that the suggar works were no manufactory , because they only refine suggar that is brought in . it has been likewise debated , whether materials imported for manufactories , are by this act free from paying custom , or excise ; since the act only says , that oyl , dying stuffs , pottashes , or any other materials usual for manufactories , shall be free of custom , excise , and other publick dues , and that all cloaths , stuffs , stockings , and other commodities to be exported by them , shall be free of custom , and excise for nineteen years , must be subjoyn'd , both to the export and import , both these being in one sentence , and not divided by a punctum , but by a semi colon ; by which we are to observe , that not only the right wording , but the right pointing of acts of parliament are to be observ'd : but in my opinion , the materials are ever to be free ; and the export is only to be free for nineteen years ; which is clear , not only from the wording of this act , but likewise from the act of this same parliament . by this act any person inclosing his ground at the sight of the sheriffs , stewarts , &c. may cast about the high-way , two hundred ells ; and where inclosurs fall to be upon the borders of any persons inheritance , the next adjacent heretor is to be at equal pains in building , ditching , and planting that dike , which divideth their inheritance ; which last clause was found to be only conceiv'd in favours of those who had required the neighbouring heretor , because he might have imploy'd his own servants , or materials , but yet the lords , in the case of garletoun against george seaton , february . found that if the neighbouring heretor was not required , they would abate to him in the modification , what he might have saved by using his own servants and materials , by the act par. ch. . it is added , that the sheriffs , and justices of peace , may force the neighbouring heretor to sell as much of his lands as may cause the dike , or ditch to run upon even ground , or as may be capable of a dike ▪ or ditch , where the builders own ground is incapable of either dike , or ditch . bacons history hen. . observes , that that king restricted the frequency of inclosures , because much grass could be mannag'd by a few herds-men , which occasion'd a great decay of infantry , towns , taxes , tiths , vid. pag. . of that history . by this act broken copper , and brass , are discharg'd to be exported ; and the reason truly is , because it hinders the manufactory of making things of brass , or copper within the kingdom ; but yet because there was so much allow'd to be taken for broken brass and copper , exported by the book of rates ; which seem'd to imply , that exporting was allow'd , and that this act had not been in observance ; therefore the council discharg'd the confiscation quoad bygones , preceeding . but discharg'd exportation for the future . and it must be notic'd , that custom is ●mpos'd by the books of rates upon many things that cannot be exported . this act discharging trades-men to import made work , and declaring the one half to ●elong to his majesty , is not so well observ'd as in reason it ought to be , since it makes them lazie in improving the manufactorable commodities of our own nation ▪ but it may be doubted , whether this act does not also discharge the importation of all such made work , by merchants as well as trades-men , since this discourages manufactories more than the other ; for it is less probable they who can make such work , will bring it home ; and why should ill work be confiscated , when made by our own trades-men ? whilst any ill work may be brought from abroad ; and the words of the act being the parliament ●●hibits and discharges all trades-men to import made work , or any such ware brought home by merchants the prohibition may by the particle or , be extended to made work , brought home by merchants ; to which nothing can be answered , but that the rubrick bears , act discharging trades-men to import ; this selling was discharg'd formerly to crafts-men only , ja. . par. . act . ja. . par. . act . and par. . act . but it is alleadg'd , that some vvork cannot be so well made ; and that our own trades-men would extortion us , if we were not in a capacity to over-awe them by bringing home made work : and yet to encourage our own work-men , there is double custom laid upon all forraign made work by the book of rates , and ten per cent by a late proclamation , which being joyn'd with the sea-risk that those run who bring home made work , and the exchange pay'd for the price of it , is a sufficient encouragement to our own trades-men ; who , because they may live cheaper , may likewise work cheaper than those abroad , even beside these other encouragements . this act in favours of sope-work , seems needless , because it was comprehended under the general act concerning manufactories , being the act of this parliament ; but probably it has been thought necessary for clearing the time , for which the priviledge of manufactories was to endure , as has been observ'd upon that act. though by this act it be declar'd , that upon the bringing down the annualrent to six of the hundred ; that six is declar'd to be free of all retention , or other publick burdens ; yet subsequent parliaments have burdened , even the annualrents with retention , and otherwise , expresly contrary to this act , upon pretext that the impositions were voluntar offers , and not formally impositions . nota. it may be doubted , if the kings officers may not lawfully ingage for more than six per cent , to get money for publick use . by this act it is declar'd , that all sums whereupon no infeftments have follow'd , may be arrested , though they be heretable otherwise of their own nature ; and because regulariter heretable sums are not arrestable , therefore this dispensation was necessary . albeit this act bear only , that sums whereupon no infeftments have follow'd , be arrestable , and determines not , if arrestments may be us'd at his instance , to whom such sums are due ; yet a paritate rationis , this may follow . this act is formerly explain'd in the act par. ja. . this act is only a ratification of the act of the par. of ch. . save only that it is here declar'd , that notwithstanding of this act , any who have gotten , or shall get any new infeftment of superiority of kirk-lands , the same shall stand good , as to such vassals who have given their consent to the said right of superiority ▪ in regard that such a consent , as to his majesty , is of the nature of a resignation of their property , in favours of the said superiour , to be holden of the king ; but prejudice nevertheless to his majesty , of his highness right of reversion , of the feu-ferm-duties , and casualities , conform to the foresaid act of parliament . the design of which clause was , to secure such lords of erection , as had got bonds from their vassals , holding kirk-lands of them , to continue their vassals , and not to hold of the king , notwithstanding of the act of parliament . declaring the king to be the superiour of all kirk-lands : and albeit the lords did not think that the single taking of an infeftment from a lord of erection , did infer the consent mentioned in this act ; after giving of which consent , the vassal could not return to be the kings vassal ; yet upon the . of july . in a case betwixt the duke of hamilton and weir of blackwood . the lords found , that such a consent as this might be infer'd by presumptions , shewing that the vassal design'd to oblige himself to hold of the lord of erection , and not of the king ; and in that case they found , that blackwoods father having granted a bond , that so soon as the duke should obtain the superiority , his son should become his vassal ; and though the duke had not then obtain'd it , yet he has since ; the lands being lately dissolv'd from the crown ; and though the father was but a tutor , yet he was the person who was instrumental to settle his son in the right ; and the rest of the vassals of that abbacy , did take their lands expresly , holden of the duke only : but in my opinion , no consent can be founded upon by this clause of the act of parliament , except it be a clear and express consent , to hold only of the lords of erection , and not of the king , it being so much the interest , both of king and people , that the subjects should hold of the king ; and the parliament , . having so clearly introduc'd in the favours of vassals of erected church-lands , that they may hold of the king , it were hard to take that benefit from them without their express consent . for understanding this act , it is fit to know , that because ti●●lars of prebendaries , chaplanries , and alterages cannot be infest , and that there is nothing standing in any register , to shew who is titular ; therefore singular successors who are vassals , could not know by whom to enter ; to supply which , this act provides that the vassals of the saids provestries , chaplanries , and alterages , and others of that nature , may be infeft by the laick patrons , holding immediatly of the king ; because it is easie to discover by the registers , who is laick patron of the benefice , since it passes by infeftment , but yet the laick patron is to have no advantage ; and so the liferent-escheat will not fall to him as superiour , but will belong to the titular , who is true superiour ; nor can the laick patron pursue reduction : but yet it seems that since the vassal did enter by him , that therefore he is bound , both to produce to him , and that he will have right to the emoluments of the superiority , except the vassal can show who is the true superiour . nota. that when the patron presents in such cases , he needs not the consent of the chapter , or convent of the saids prebendaries ; and the provost and baillies are declar'd the only undoubted superiours , where such benefices ly within their towns , they having formerly been patrons of these chaplanries , which ablativi absolute positi seem to import a condition , and so they must prove that they were formerly patrons . albeit by this act it be appointed , that there shall be a cocquet for every ship , and that there shall be fourty shilling pay'd for it ; yet it was alleadg'd that a general cocquet , for a ship , was not sufficient ; but that every merchant should have a special cocquet , containing specially his goods , and enumerating particularly all the kinds of these goods ; because , first ; the design of cocquets was , to know whether the goods belonged to free-traders ; which could not be done , if the goods and merchants names were not condescended on particularly ; nor could it be known , if his majesties dues were pay'd for the goods , for which the cocquets were granted . . it were unjust that a great ship with rich wares should pay no more than a small one with courser goods . . by the customs of england , and other countreys , there were for these reasons , special cocquets given for proportional dues . . by the , , & acts of the par ja. . the cocquets are to contain the particular quantities of the goods ; vid. observ . on these acts. this act is explain'd in the act par. ja. . this act discharges the custom of two and a half per cent , and all raising of his majesties customs , directly , or indirectly , without consent of parliament : and so though by the act of the sess. of this parliament , asserting his majesties royal prerogative in the ordering of trade with forraigners . it seems that his majesty may lay what restraints and impositions he pleases upon forraign imported commodities , and as he pleases ; yet it seems the customs by this act cannot be rais'd : for though that act be posteriour , yet this is special , and is not particularly abrogated ; albeit by that act , all acts and statutes contrary to that act , are abrogated . by this act likewise , his majesty discharges the taking masters , merchants , and mariners oaths in the matters of customs ; but since their oaths are taken in the matters of excise , this priviledge signifies nothing , vide observations on the act par. . ch. . this act is explain'd in the observations upon the act par. . ch. . this act allows any of his majesties ordinary officers , to whose charge the same belongs to docquet signatures ; and by ordinary officers , i think are only mean'd , officers of state ; and this was formerly established by the act par. . ja. . but by this act is added , that these who do docquet , shall send a double of the docquet to the secretary to be registrated ; but yet the deed is not annull'd , though this be omitted : and therefore the deed i think would subsist ; but the omitters would be punish'd . the reason why a double is to be registrated , is , because by this his majesty may know what is formerly granted , which will prevent double gifts of the same thing . this act is formerly explain'd in the former commissions for plantation of kirks , viz. ja. p. act ch. p. acts & . this act for the most part is but temporary , and was made to give some ease to the poor debitor , whose lands had been so wasted and burdened in the late rebellion , that he could neither pay annualrent , nor redeem comprisings , or wodsets , as formerly , being founded upon the same reason , by which the novae tabula were introduced in rome by julius caesar , after the civil wars betwixt pompey and him : but the chief things observable in it , are first , that the legal reversion of all comprisings to be led , or that were led since january . whereof the legals are expired , and all comprisings whereof the legals were not expired before that moneth , shall endure for ten years ; and though it might have been pretended , that ▪ this act does not prorogat the reversion , but only makes the lands to be redeemable , and so the rents of the last three years above the seven , which was the ordinary legal , was not to be restored , but that the compriser had right to them , as fructus bona fide percepti & consumpti : yet the lords found that the compriser was countable for his intromission , even for these three years , since in effect these three years are added to the reversion , and so the compryser is lyable for these three years , as he would have been for the other seven , january . . clapperton contra torsonce . albeit by our former law , the compriser could have possess'd the whole ●ents of the comprised lands during the legal ; yet in respect the rents do often exceed very far the annualrents ; therefore by this law , allowance is given to the lords of session , to restrict the compriser to such part of the land as will pay him the annualrent of his sum and expense : the debitor from whom the lands were comprised , ratifying the apprysers possession of the rest ; but it is still to be remembred , that after the legal is expired , the compryser has undoubted right , and cannot be limited . upon this clause of the act , the lords upon the of june . restricted wilson who had comprised sir william murays estate , to medle with any part of the estate comprys'd that he pleas'd , esse●ring to eight per cent , he counting for the superplus above this annualrent , and for the publick burdens ; but thereafter in february . in a case betwixt wilson and sir alexander hume . it was contended , that this clause was a part of the temporary regulation past in favours only of such debitors as had taken the benefit of this act , by payment of their annualrents , and was only ill plac'd here amongst the clauses , relating in general to comprysings , for it was against the whole current of our laws , that during the legal , the creditor who was forc'd to want his money , , should be forc'd during the long legal of ten years , to accept of naked annualrent ; especially seing oft-times they got land at last , that they could not , nor car'd not for the possession of it ; nor would this ever spur , and excite creditors to pay the sums comprys'd for , and this was a very universal prejudice ; most part of rights being now founded on comprysings ; and the practique being single , and not upon debate , was not to be respected . to which it was answered , that the clause was oppon'd , and it was dangerous to alleadge that clauses were transplac'd by mistake ; nor could any thing gloss a law better than a decision past so recently , after the act made : at the making of which decision , many eminent persons were present who had been the very penners of the act , and the restriction was most reasonable ; for since great estates were to be carry'd away by comprisings for small sums , it wast just that till the comprising expir'd , the poor debitor should be favour'd : nor was the creditor a loser , since a comprysing being a legal pledge only for his money , he got the annualrent duly pay'd him , and a ratification of his possession , even during the legal : and if his money was not pay'd cum omni causa , with annualrent , for his very expense he got the whole land , though the sum were never so small ; upon which debate , the lord● adher'd to the former decision , though it seems very strange to the best lawyers . the lords likewise found upon the of july , . that this power granted to them , was only in favours of the debitor , from whom the lands were comprysed , and could not be extended in favours of posteriour comprysers , who could not upon this clause crave , that the first compryser should be restricted to his annualrent ; for the priviledge is granted to the first compryser in contemplation of his being oblig'd to ratifie : nor are the second comprysers prejudged by the first comprysers possession , since it will extinguish his comprysing pro tanto , and make way for them . by this act also , all comprysings led since the first of january . before the first effectual compryser , or after , but within year and day of the same , shall come in pari passu , as if one comprysing had been led for all the sums : upon which clause it is observable , . that comprysings led since . come not in with comprysings led before that year , though within year and day thereof , december . . hume contra hume . for clearing this and all other acts of parliament , which appoint diligences to be done within year and day ; it is fit to know that the year is the time design'd by these acts , and the day is adjected only ad majorem evidentiam ; and therefore dies ille inceptus pro completo habetur february . weddel contra salmond ; where the husband was found to have the tocher ▪ though the wife liv'd not the intire day following the year , but died in the morning of that adjected day . observ. . that the first effectual comprysing is interpreted to be a decreet of apprysing , whereupon infeftment follows ; and therefore if the second comprysing be led within year and day , after infeftment was taken upon the first , it will not come in pari passu with it , except it be within year and day of the decreet of apprysing , for the first comprysing was expir'd , and so the next creditor could comprise nothing , so that his comprising could not come in pari passu ; which was so decided . albeit it was alleadg'd , that by this act , all comprysings led within year and day , are fictione juris , to be repute as if one and the same comprysing had been led for all the sums contained in all these comprysings , quo casu , one of the creditors rights could not have expired in prejudice of another , and in effect this year is a new prorogation of the legal quoad that con-creditor who has led his comprysing within year and day of the other , july . . laird of balsour contra dowglas . upon this clause it was also debated very subtilly , whether an infeftment of annualrent having interveen'd betwixt a prior comprysing , and other posterior apprysings , could be prefer'd to the posterior apprysings ; for all these comprysings having been led within year and day ; it was alleadg'd that by this statute , they behoved to come in pari passu , as if one comprysing had been led for all ; and therefore since the first was preferable to the infeftment of annualrent , so should the rest , though posterior to it . but to this it being answered , that the meaning of the act was , that comprysings led within year and day , should come in pari passu , only in competition with one another ; but that infeftments of annualrents , or other rights could not be postpon'd to posterior rights , for which annualrents , if the creditor had compris'd , he had been prefer'd . the lords brought them all in pari passu ; the matter being dubious , and the doubt arising on the unclearness of a new statute , february . brown of colstoun contra nicolas ; which shews what 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the lords have , and what is done for clearing of new statutes . observ. . that this computation is only to be made with respect to the first effectual comprising ; and therefore though it be extinguished by discharge , or intromission ; yet the third compriser will not , upon this act of parliament , come in pari passu with the second , upon pretence that the second becomes first , by extinguishing the first comprysing , decemb. . . street contra the earl of northesk . obser. . that this act of parliament being correctory of a former law , was found not to be drawn back , so as to make such as intrometted prior to that act , oblig'd to communicat their intromissions before the act ; though their comprysings were led within year and day , the intrometter having been bona fide possessor , january . . grahame contra brown. but yet some think ▪ that after the act , 〈◊〉 first compryser will be lyable for his intromissions , and to communicat them with a second compryser , comprysing within year and day from the very date of the second comprysing , and not from the date of a citation only ; for though it may be alleadg'd , that before a citation , a second compryser is bona fide possessor , and is not oblig'd to know that there was a second comprising ; or whether he was pay'd aliunde : yet to this it may be answered , that by this act the first compryser is to count , as if the same comprysing had been led for both the debts , quo casu intromissions would have been communicated even before citation ; and by the foresaid decision , the lords found that bona fides defended only , as to intromissions prior to the act ; ergo it did not defend , as to intromissions subsequent to the act. observ. . that this clause of the act is somewhat innovated by the act sess. . of this parliament , whereby in favours of those posterior comprisers , who bought in the first comprising , to prevent its expiration ; it is declar'd , that the first comprising so standing in their person , shall not be brought in pari passu with other comprysings , though led within year and day : but it being doubted , whether that act of parliament should only secure such as were necessitated to buy in the first comprysing , because that seems to be the design of the legislator : yet the lords extended it to all comprisings so bought in , the statutory words being general , december . . veatch contra williamson . observ. . that since posterior comprysers were brought in pari passu with the first compryser ; it was justly ordered by this act , that the first compryser should be pay'd of his expenses by the posterior comprysers ; which was found to extend to all the expenses laid out by the first compryser , who is to contribute no part thereof himself , that being all he has in recompense of their coming in pari passu . but quaritur , whether if one of these comprysers were only pursuing to come in , if he would be oblig'd to pay all the expence , or pro rata off his sums ? and i think he would be oblig'd to pay all , reserving his relief . it is likewise doubted , whether one of many comprysers , coming so in , will have right to any , more than proportionally to his sums , all the rest remaining with the first compryser , till the rest of the comprysers seek to come in ; or if that compryser will force the first compryser to divide with him , according to the proportion of their two sums only , without respect to the other comprysers , till they come in . observ. . that comprysings led for real debts , and debita fundi , remain as formerly ; so that comprysings led within year and day , come not in pari passu with comprysings led upon these real debts , such as ground-annuals , annualrents due upon infeftments , or sums whereupon inhibition was rais'd ; for clearing whereof , it is fit to know that debita fundi , are either when lands are burdened by an express act of parliament , which makes the burden real , and to affect the ground against singular successors : or . what is pay'd to a superior as a part of his reddendo , are likewise debita fundi ; and do in like manner affect the land. observ. . that though adjudications and comprysings , have generally the same priviledges : yet where adjudications are not led for liquid sums , but are granted by the lords , for compleating dispositions and rights made by the party , where the granter refuses to compleat the right himself ; in that case , such adjudications come not in pari passu upon this clause , july . campbel of riddoch contra stuart . december . . lady frazer contra creditors of the lord frazer . by this act also it is declared , that if the appearand heir , or any person to his behove , shall buy in any expyred comprysings , the said comprysings shall be redeemable by posterior comprisers from the appearand heir , or his confident , for payment of the true sums pay'd out by them , and that within ten years after the said right was acquired . observ. . that though this be a correctory law , and so ought not to be extended ; yet it is so favourable , that the lords extended the same to rights bought in by eldest sons , whilst their father lives , though the eldest son cannot be properly call'd in that case an appearand heir , since an appearand heir is only he who can succeed in haereditatem jacen●em ; but the lords would not extend it to the right of an apprising , bought by the husband , where his wife was appearand heir : for though the lords found this reasonable , yet they found the act to be stricti juris ; and so would not extend it to this case , except it could be alleadged that the sums were truly pay'd for the wifes behove , and the lands provided to her heirs : and some doubt , whether comprisings bought in by the tutors and curators of appearand heirs , be redeemable upon this act : and since their pupils may oblige them to dispone the saids rights to them , though the comprisings were bought in , in the tutors and curators own name , if they had as much of the pupils means in their hands . it seems that by the same reason , the pupils creditors who comprise omne jus , that was standing in their person , should have the same priviledge . observ. . though this clause runs only in favours of apprysers , from which it may seem , that they are only allow'd to redeem ; yet the lords decided january . . hay contra gregory ; that a creditor having an infeftment of annualrent , might redeem from a compryser who excluded him ; and it seems by that decision , that any creditor may have this benefit as well as comprisers , since they may comprise : nor are the strict words of the act to be considered ; for else adjudgers could not redeem , since they are not nam'd in the act. by this act also , not only the apprising is redeemable , but even bonds granted for the sum thereafter comprised for , are null , if the apprising be satisfi'd as said is , so that appearand heirs cannot make use of the bond , or inhibition upon it , and though a disposition was bought in by the appearand heir , before the act of parliament ; yet if the infeftment was taken after the act , the comprising was found redeemable by the act ; for it is the infestment , and not the disposition , which gives the right ; because if a third party had been first infest , he had been preferr'd to the appearand heir , notwithstanding of this disposition : july . . maxwel contra maxwel . in which case it was also found , that thogh the act bears , that expired comprisings bought in by the appearand heir , should be redeemable ; yet if the appearand heir buy in a comprising in cursu , the same will be redeemable if it expire whilst he had right to it ; so that upon the whole matter , it is observable , that even correctory laws with us , are to be extended in favourable cases , so far as to make them answer the design of the legislator , which is to help the ill that was to be corrected . observ. . that this priviledge is allowed to the second compriser , not only by way of order of redemption , but even by raising an ordinary action ; so that if he raise that action within ten years , the lords will find the same sufficient ; providing he has rais'd a declarator , concluding compt and reckoning within the ten years , which the lords will sustain by way of reply , being propon'd upon incidenter in the ordinary action for payment , june . . kincaid contra laird abergeldie . observ. . that these ten years run from the infeftment taken by the appearand heir , or some other publick deed , as decreets , &c. done upon the right so bought in , else the appearand heir might keep his rights latent for ten years , and consequently the creditors could not redeem , because they could not know them . it is fit to know that by our law , wodsets are either proper , or improper . a proper wodset is , where lands being impignorated for a sum , the rents of the land are accepted in satisfaction of the annualrents of the money , and that without any restriction upon either side : and as to these wodsets , it is by this act ordain'd , that the wodsetter shall be oblig'd upon offer of sufficient surety by the lender , either to quite his possession , or restrict himself in his possession to his annualrent , counting for the superplus : but this act innovating the privat paction of parties , was found only to oblige the wodsetter , to be countable from the date of the offer of surety , and not from the date of the act of parliament , february . lord borthwick contra his wodsetters . but in this computation the wodsetter is to get defalcation of what he hath depursed upon reparations , or hath lost by quarterings , or any other manner of way . improper wodsets are these , whereby it is expresly declar'd , that the wodsetter shall not be lyable to any hazard of the fruits , tennents , wars , or troubles ; so that the wodsetter is to have re-payment of these , by and attour the rents of the lands , which are declared to be usurary in time coming , and the wodsetter in all such wodsets taken since the year . is obliged to count for the superplus , more than pays his annualrent , and to impute the same pro tanto , in payment of his principal sum. nota . this act of adjournment , is the first that i find in all the present impression of the acts of parliament ; for parliaments were of old dissolv'd , but now they are ordinarly adjourned , and the act of adjournment is neither touched with the scepter , because it is an act of the kings , and he needs not touch his own acts ; nor is it read in parliament ; because by the very adjournment the parliament is dissolv'd , and it being no more a judicature , nothing can be read in it . but by the par. ja. . by the black acts , i find that de mandato domini regis parliamentum suit continuatum usque ad sestum beati joannis babtistae sub praemonitione , . dierum : whereas though our adjournments bear now no dayes , upon which premonition is to be made ; yet when the king adjourns parliaments by proclamations , beyond the days to which it was adjourned by act of parliament , he uses to adjourn them upon the premonition of fourty dayes , and fifteen was too short . it was doubted , whether if the day to which the parliament was adjourned by proclamation was elapsed , a new parliament behoved to be called , or if the current parliament ought to be adjourned by a new proclamation , notwithstanding the day was elaps'd , and it was found that it might be adjourned ; since the power of calling and dissolving parliaments is the kings prerogative , and a letter to this purpose from the king , is registrated in the council books in july . king charles . parliament . session . episcopacy having been restor'd in anno . bishops were by the rebellious parliaments abolish'd ; and therefore are by this act restor'd to their undoubted priviledge in parliament ( that is to say , to be a third estate ) their function , dignities , and estates ; but before this act of parliament , the secret council by their act in june . discharg'd any person to meddle with their estates , or revenues , in obedience to a letter , directed by his majesty , which gave the first rise , both to that act of council , and this act of parliament . by the first act par. . ja. . king james had permitted the church to be govern'd by general-assemblies , synods , and presbytries ; which act was not expresly abrogated by the act par. . ja. . and therefore it is by this act expresly abrogated ; they are also restor'd to their commissariots , and quots of testaments ; but the present commissars rights are reserv'd ; and albeit they be restored to the superiorities ; yet vassals having entered by , or having pay'd to the superiors for the interval , are secur'd . by this act , taking up arms ( though in defence of religion ) is declar'd treason ; and conform to this clause , all going to field-conventicles in arms , was declar'd treasonable ; though it was alleadg'd that this was not a rising in arms , since every man went without knowing of his neighbour ; for the council and justices thought , that at this rate , a multitude of arm'd men might easily assemble ; and the levying war , or taking up arms , being impersonally discharg'd , it reaches every single man ; and though there were only one single man in arms , yet he would be guilty of treason , especially after that proclamation , for he knew not but others might be there , & versabatur in illicito . by this act also , all accession to the suspending his majesty , or his successors , or to the restraining their persons , or inviting forraigners to invade their dominions , is declar'd treason . there is one branch of this clause which may seem hard , but was necessary , viz. or put limitations upon their due obedience ; for the former age and this having invented new treasons , in asserting , they would own the king , in as far as he would keep the covenant , or own jesus christ ; but reserving still to themselves to judge , how far the king did so , they did by a necessary consequence conclude , that they were no further oblig'd than they pleas'd ; and so made themselves in effect judges above the king ; than both which , nothing can be more treasonable : and i remember that sir francis bacon in his history of king henry . tells us , that the judges of england found sir robert clifford guilty of treason ; because he said , that if he knew perkin werbeck were king edward 's son , he would never bear arms against him , though the words were alleadg'd to be only conditional ; for they thought it a dangerous thing to admit ands and ifs to qualifie words of treason , whereby any man might express his malice , and blanch his danger . the denying his majesties supremacy , as it was then established , is declar'd punishable by in-capacity , and such other punishment as is thereto due by law ; but it had been fitter to determine that punishment , and from the words as it is now establisht ; it may be doubted , whether the impugning the supremacy absolutely be punishable by this act , since the supremacy is extended by a posterior act , viz. the act par. ch. . but that act being only an explication of this ; all such as impugn the kings supremacy absolutely , are punishable . from these words also , that they shall be punishable by such other pains as are due by law in such cases : it may be doubted , what punishment is due to such as impugn the kings supremacy , besides incapacity ; and it seems they may be pannal'd upon the and acts par. ja. . it has been urg'd , that all speaking against the kings prerogative , is only punishable by incapacity and arbitrary punishments , because this clause sayes , that if they speak , print , &c. against the kings supremacy in causes ecclesiastick , or to justifie any of the actings , or practices abovementioned , they shall be so punished ; but so it is , that all rising in arms to depose the king , &c. are above-mentioned , ergo , say they , the speaking , or preaching in defence of these , is only to be so punished ; and they urge this from the principles of reason , and the practice of other nations ; and that excellent law , si quis imperatori maledixerit ; lib . tit . . c. but this were a most absur'd gloss : for certainly , if this objection prov'd any thing , it would prove , that no words could infer treason , which is expresly contrary to the very act , whereby all these positions are declar'd treason , and consequently all words whatsoever , which express these positions , are punishable as ●reason ; and it is fit to know that it is not that very formula , or words , which are condemn'd , but these positions are condemn'd , for else it were easie to make the act elusory , and to evade it , by using other words , than the words here set down , and the analysis of that part of the act is , that first the positions are declar'd treasonable . . the speaking against the kings supremacy , and the ecclesiastical government , as now establish'd , &c. is forbidden . . the plotting or contriving any thing against the king , consequentially to these positions , is declar'd punishable by forefaulture . . that the speaking , &c. against the supremacy , and the establish'd government of the church , is to be punish'd arbitrarly ; and the words , or to justifie any of the deeds declar'd againstly this present act , are to be restricted to words relative to the supremacy , &c. mention'd in that clause only . it is also observable , that the impugning the government by bishops , or the kings supremacy , are only punishable , if they be pursu'd within eight moneths , and sentenc'd within four moneths thereafter , and are only punishable by this act , if it was done by malicious , and advis'd speaking ; and therefore it appears , that such as were drunk , when they spoke these words , are not punishable by this act ; nor such as are reputed fatuus and fools , though they be not declared idiots , or furious : and yet it seems that all writing , preaching , and prayers , and such malicious expressions , to stir up the people to a dislike of his majesties royal prerogative and supremacy in causes ecclesiastick , are punishable indefinitly , and that because either the law presumes they are premeditated ; or because of the great danger arising therefrom , and therefore it will have them punish'd as such ; for the act runs disjunctively , writing , preaching , praying , or advis'd and malicious speaking . this is the first act whereby conventicles are discharg'd , and in it they are call'd , nurseries of sedition ; but yet there is no penal sanction against them in this act ; but by the act of the sess. of this parliament , they are declar'd to be fineable in a fourth part of the yearly rent , every burgess being to lose the priviledge of his burges-ship , and merchandizing , beside the payment of a fourth part of his moveables . observ. . i see by this act no fine impos'd upon such as live within burgh , and are not burgesses . observ. . by this act it is requir'd , that before with-drawers from publick ordinances be punish'd , they must be first admonisht by the minister , before two witnesses , which is not observ'd . observ. . the council are empower'd by this act to impose such arbitrary punishment as they please upon with-drawers ; but it is thought that such general powers cannot extend to life , nor limb. observ. . that these acts are only to last for three years , and are by the act of the sess. of the next parliament , continu'd for other three years , and further if his majesty pleases ; so that it is in his majesties power to discharge these acts , when he pleases . by the laws of the twelve tables , privat and clandestine meetings , under pretext of religion , were discharg'd ; and the word conventicul● , ▪ is oft mention'd in the civil law , l. . & . ff . de collegiis illicitis plin. lib. . complains of them as the pest of the empire . in these words , haec tempora serio docent magna monstra talibus parentibus alii , nec quicquam in tota re-publica magis esse perni●iosum vid. de crimine conventicula farin . quaest . . inspect . . there is a proclamation extant in the registers of council , in king james the sixths reign , declaring all privat convocations , without the king's consent , and particularly conventicles ( which is the first time i see them nam'd in our law ) to be punishable as treason ; for collegia & conventicula permittere valde quidem est regale . argen . art . . num . . this act appoints the declaration thereto subjoyn'd , acknowledging the league and covenant to have been unlawfully impos'd , and not to have been obligator , &c. to be taken by all persons in publick trust , or office under his majesty ; and which seems to be very strange , all members of the colledge of justice are declar'd to fall under this general ; and such as offer to exerce before they take the declaration , are declared to be punishable as vsurpers of his majesties authority ; and this punishment is de facto arbitrary , and is impos'd by the privy council . this act is extended to baillies of regality , by the second act of the sess. of this parliament , and by a decision of the council ; both these acts are extended to baillies in burghs of barony , though they be exprest in neither of these acts , and that because of these words in this act , and all who enjoy any other publick charge , office , or trust within the kingdom ; which is ( as all general clauses , ought to be ) extended to particulars , that are of the same nature with these , to which the general clause is subjoyn'd , and there was as great reason to extend this to baillies of burghs of barony , as to baillies of burghs of regality . by that act also ▪ such as refuse to accept offices within burgh , are punishable by losing their burgesship , and they may be also ▪ compell'd to accept , though the act mentions not this expresly ; for by the common law , cives cogi possunt ad suscipiendum munera reipublicae l. ss . de decurio : but with us they cannot be oblig'd to continue longer than a year , january . . wilson contra magistrats of queensferry . though this act of parliament obliges all who are privy counsellors , &c. to take the oath of allegiance and this declaration ; yet his majesty by a letter to the council in november . declares that the lawful sons and brothers of the present king , are oblig'd to take no oathes , because of their presumed fidelity , and that loyalty is their interest , as well as duty ; and upon this ground it seems to be , that his royal hig●ness had not formerly taken these oaths as admiral . we see likewise , that both the sons and brothers of kings are serv'd , not as subjects , but as the king himself ; and though they be dukes or earls , yet they take not place , as other subjects , but as the sons and brothers of the royal family : and thus the sons of kings were call'd adminicula augusti , subsidia dominationis , and in st. matthew , st. peter affirms , that the sons of kings are exempt from trib●t ; nor are they in france ever subjected to any corporal punishment , or put to death , vid. le bret. tit. des enfans & freres du roy , & leur praerogatives . and they are exempted by the parliament . from taking the test. this excellent act does appoint all sheriffs and justices of peace , to assist such as are robbed , or opprest in taking back their goods immediatly upon intimation , and to restore them within fifteen days ; or otherwise to be lyable : but the word immediatly does restrict the act so , as that sheriffs are not thereby empowered after a long interval , to bring back goods , or make such intimations , or raise the people for concurrence ; and therefore the gentlemen of caithness were found lyable in a spuilzie , for robbing , and away taking an heirship out of strathnaver ; though they alleadg'd that they were convocated , and commanded by the earl caithness so to do , he being sheriff , and justice general ; and they conceiv'd that they might have been punishable if they had disobey'd ; which defence was repell'd ; because though that convocation was since this act , yet so long a time having interveen'd , the sheriff could only have proceeded via ordinaria . it may be doubted from this act , whether when any man complains of oppression , as that a robber , or neighbour sits violently down upon his land ? the sheriff and countrey are not oblig'd to concur by this act , since the act seems to be restricted to the way of taking of goods , though it speaks generally of oppression , and i think they are lyable in the one case , as well as in the other ; and this case being a permanent act , is more easily redress'd . by this act likewise , the heretors , wodsetters and feuars within the paroch where the goods are found to have been disposed , or sparpelled , are declar'd lyable for the value of the goods ; but from the context of the act it is clear , that they are only lyable subsidiarly , in case the goods cannot be otherwise recover'd . the words wodsetters , and feuars , needed not to have been subjoyn'd to heretors , for both these are heretors : but it seems to have been more necessary to have added liferenters ; since it was just that men who are liferenters should be lyable ; for a father may put his son who is minor in fee , and reserve the whole liferent to himself , or a person of quality may marry one who liferents the whole paroch , and so this remedy becomes ineffectual ; because the act mentions not liferenters , and in such cases , liferenters are found not to be comprehended , november . . minister of morum contra the lady beanstoun . by this act such as kill , slay , hurt , or mutilat the away-takers , or their associats in prosecution of their goods , are indemnified . observ. that all who kill in such pursuits , are not indemnifi'd ; but such only whose goods are taken , or who are oblig'd to rise , for else such as had privat grudge , might upon that grudge follow and kill ; but yet it seems just that if men were desir'd , though not oblig'd ; or if gentle-men being in the house when robbed , should pursue and kill , that they should also be indemnifi'd . this act is generally so well conceiv'd , that if it were well prosecuted , as that it alone might settle the highlands . this revocation seems to be very ill conceiv'd , for it had forgot the lands of the principality , which are still comprehended under all other revocations ; and therefore the parliament thought fit to add this to the revocation ; and if this be valid , there needs no revocation under the kings hand ; but an act of parliament shall be sufficient without a revocation . it is likewise observable from this act , that the parliament qualifies the kings revocation , in sua far at his majestie revocks all deeds done by his father , by declaring , that such only are revocked , as were made against the laws standing in force , before the year . for otherwise all deeds done by the late king , might have been challeng'd upon that head of vis & metus exprest in this revocation ; but however , acts extorted , vi majori , either from king or subject , are null ipso jure by the common law , without any special revocation ; but revocations are naturally only extended to deeds done in minority , but not to deeds extorted vi majore , though this revocation comprehends both . when the clergy submitted their rights to the king , both the submission and decreet arbitral provides , that the bishops and others of the clergie , should enjoy the fruits and rents of their benefices , as they were possessed by them the time of the submission ; and therefore by this act it is ordain'd , that any valuations of ●einds , whereof the bishops and other benefic'd persons were in possession , either by leading , drawing , or rental-bolls since the year . should be null : and yet this priviledge is meerly personal in favours of church-men ; for by a missive letter from king charles the first , the of may . it is declar'd that this favour shall not be extended to the tacks-men of bishops , and other church-men , they being laicks , but that during these tacks the heretor may lead , he finding caution ; and accordingly a valuation was sustain'd to james hamilton of the lands of hetherwick against the earl of roxburgh , the bishops tacks-man of the tiends of these lands ; though it was alleadg'd there , that the submission and decreet arbitral having no such quality ; but the tiends whereof they were in possession , being absolutely reserv'd , no posterior letter could have prejudg'd them , and it was a great prejudice to them to have their tiends valu'd during the tacks , for this could not but lessen the tack-duty and the grassoums . in this cause it was likewise doubted , what way these tiends should be valued during the tack . government belongs to the king , and property to the people ; yet since the publick interest must over-rule the privat , all being still preferable to any one : therefore government does so far influence property , that all lawyers are of opinion , that the prince may , for a just cause , invert or take away property res privatorum auferre & jus alteri quaesitum tollere : and thus we see that the king may make a cittadale upon any mans ground , paying the just price , &c. and sometimes he may throw down the houses of suburbs , when there is either actual war , or fear of war , in which towns may be besieg'd , so that he is the sole judge of this justa causa , by which property may be inverted ; and amongst other just causes , one is the procuring of peace amongst the subjects ; for procuring whereof , the prince may remit both the civil and criminal reparations , due to subjects that are wrong'd during the time of the war , gail . lib. . observ . , & . but with us , general indemnities are ordinarly granted in parliaments , wherein certainly all privat interests may be discharg'd , because every privat man is presum'd therein to be represented : and this act of indemnity is one of the most full and formal that ever we had , and in it , all such are indemnifi'd , as acted by vertue of the publick pretended authority of these times ; and though an order be necessary to be produc'd , in cases where orders use to be given ; yet the benefit of this indemnity was extended to such as were in arms , though they could prove no orders , since souldiers use to get no written orders , except it were offered to be proven by their oaths , that they had no order , or that they converted the goods pursu'd for to their own privat use , february . . murask contra gordon : and that any promises made to restore such goods , did not bind after the act of indemnity ; though it was alleadg'd that the promise did innovat the debt , from a military , to an ordinary debt ; because the lords thought that that promise might have been given , and emitted upon the supposition , that the souldier thought himself lyable before the indemnity ▪ and therefore the lords found him not lyable , notwithstanding of the promise , except it could have been prov'n , that he apply'd the goods to his own use , or that he wanted a warrant . sometimes also the king does by his proclamation , grant general indemnities , as he did in , and . to the western rebels ; but in this case it was controverted , whether such as had robbed privat mens horses , were lyable in restitution , notwithstanding of that indemnity ; and it was urg'd that they were : because . what ever might be alleadg'd , where the king had once acknowledg'd rebellion to be a pretended authority & spe●iem belli , by exchanging of prisoners , and making of truces with them , &c. yet here there was not even those pretexts , and so they were only to be considered as a company of privat robbers . . even this act indemnifies only such as acted by vertue of pretended authority ; therefore since even the parliament did not indemnifie such privat robbers , much less should they be secur'd by proclamations . . whatever an act of parliament might do , because all persons injur'd were therein represented ; yet those proclamations were but general remissions , and no remission could prejudge the party injur'd of his reparation , and assythment . . this would incourage all rogues to be rebels , that they might robb , and thereafter be enriched by an indemnity : whereas on the other hand , it would discourage them both from rebellion and robbery , if they knew they behov'd to be still lyable in restitution ; and though the king did remit vindictam publicam & privatam , by this proclamation ; yet that vindicta privata was not to be interpret damnage and interest ; but that revenge and criminal action , which any privat party might pursue without the king , and vindicta is still contra-distinguished from damnum & interesse . . when the law allows to the prince a power to remit and discharge the damnage done to privat parties , in contemplation of a publick peace : lawyers acknowledge that this can only be done , if peace cannot otherwise be procur'd ; for otherwise publick peace is none of these just causes , for which property can be inverted ; and therefore any such indemnity after the peace is established , cannot prejudge privat subjects , as to their restitution as gail expresly declares , observ . num . . king charles . parliament . sess. . bishops being restored in the former session of parliament , the king does in this act declare , that he will maintain and preserve that government in the church , and not give any connivance to the prejudice thereof in the least ; and so all indulgences are from this still urg'd to be contrary to the royal promise , and the publick faith. by this act ministers absenting themselves without a lawful excuse from the diocesian meeting , or not concurring in the church-discipline , when required by the arch-bishop , are to be suspended till the next diocesian meeting , and if they conform not then , to be depos'd ; and though this be design'd chiefly against the non-conforming ministers ; yet it has been repin'd at by some of the episcopal clergy , because the bishops have by it a power to suspend by themselves ; and by the present discipline of the church , the bishop may depose by himself , without the concourse of the clergy , even in the diocesian meetings , though he usually takes alongs with him the advice of the ministry . in this act with-drawing from publick worship , as well as keeping of conventicles , is declared to be seditious ; and therefore each heretor with-drawing , loses the fourth part of his years rent ; each yeoman , or tennent may be fin'd , not exceeding a fourth of his free moveables ; every burges is to lose his freedom , and may be fin'd in a fourth part of his moveables : and the council have by this act a very full and undetermin'd power , to inflict corporal , beside the former punishments ; but it seems that 〈…〉 those punishments can be inflicted upon with-drawers , except where they have first been admonished by their minister in presence of two witnesses ; but since the minister of the paroch is not here specifi'd , it was thought that persons might be fin'd after an admonition , given by any minister appointed by the privy council , or presbytry . this part of the act is not expresly abrogated ; but the fines are altered by the act of the sess. par. ch. . by which every protestant with-drawer ( whereas this act extends both to papists and protestants ) is to be fin'd thus , viz. an heritor in the eight part of his valu'd rent ; a tennent in six pounds scots ; a cottar in fourty shilling scots ; every person above the degree of a tennent , but having no real estate , in twelve pounds ; every considerable merchant in twelve pounds ; every inferiour merchant , and considerable trades-man in six pounds ; and the other inhabitants within burgh in fourty shilling ; and his majesties privy council is by this last act allow'd to force all who shall with-draw from their paroch churches for a year together , to give bond that they shall not rise against the king , nor his authority , and to banish or secure them in case of refusal : whereas by this first act , there is a general power given to the council by the parliament , to do every thing that they shall find necessary for procuring obedience to this act , and putting the same to punctual execution ; upon which clause was founded the councils putting heretors to give bond for their wives , tennents , and servants keeping the church ; for since the parliament might have exacted such a bond for that effect , it was thought the council might , since they have by this clause a parliamentary power . by the other act also it is appointed , that the same shall continue for three years , except his majesty shall think fit it continue longer , and it was thought , that this power of fining might be continued by the council , without any new express order from the king , since his majesty did not command the contrary : as also upon this clause was founded the indulgence . the parliament having put it in his majesties power to punish with-drawers , or not , as he thought fit , after three years were elapsed . this act is explained in the act of the former session . this act against protections is explained fully in the act par. ja. . this act declares the king to have the only power of calling or dissolving synods ; and that his majesty has not only a negative voice in stopping acts to be made in such synods , but even a negative , in not suffering any thing to be treated or debated there , except what is contained in his proclamation , or instructions . this meeting of the church , is with us call'd a convocation , though it be here only call'd a synod ; nor can it be deny'd , but that the emperors did of old call the synods , and the formula was visum est mihi & jussi . thus euzeb . speaking of constantine , sayes , cum per varia loca exorirentur inter episcopos dissentiones , ipse , seu communis episcopus a deo constitutus synodos ministrorum dei indicebat . and thus leo writing to the emperor theodosius , si pietas vestra suggestioni ac supplicationi digna●ur annuere ; ut intra italiam haberi jubeatis episcopale concilium cito poterunt omnia scandala , quae in perturbationem totius ecclesia sunt commota , resecari . this act is explain'd in the act par. queen mary , and and in the observations upon the act par. ja. . by this act all strong-waters are discharg'd to be imported , under the pain of escheating thereof , because it prejudged the sale of barley , which is the great native commodity of this kingdom : but yet by the second act of the session of the par. ch. . all these acts against strong-waters are rescinded , and an imposition thereon is imposed ; but yet it was thought by the council , that notwithstanding of that last act , his majesty might by his pr●rogative in the ordering and disposal of trade with forraigners , asserted by the act of this session of parliament , discharge again the importation of brandy , and other strong-waters , and accordingly a proclamation was issued out , discharging them in march . and it was urg'd that the parliament thought that the king might dispose upon these , against an express act of parliament ; for though by this act the importation of them be absolutely discharged ; yet the king had before the other act allowed the importation of them , and the parliament in the narrative of this act , declares that the king had done this upon good considerations . this act for preventing the fraudulent mixture of the finer sort of tinn with baser mettle , has ordained the peutherers to put their name , with the thi●●le , and the deacons mark upon their work , and that the same be as fine as the peuther of england , marked with the rose . it may be argu'd that this act does not hinder all mixture of lead and tinn , for one pound of lead must necessarly be mixt with two pound of tinn to make it work . the peutherers and plumbers are with us under one deacon , we had no plumbers till of late ; our peutherers of old having been our only plumbers ; but now it is pretended from this act , and upon other grounds , that the peutherers should not work in lead . this act discharging advocations from inferiour courts , for sums within merks , did not except the members of the colledge of justice ; and therefore by the article of the act for regulating the session , causes belonging to the members , and sums due to merchants , cooks , vintners , and others in burgh , for furniture taken off from them , by such as dwell not within the shire where the furniture was taken off , are expresly excepted from this act ; and because this act wanted a sanction or penalty ; therefore by that seventeenth article , the clerk of the bills is ordained not to present , pass , or write on any such bill at his peril , because this act of parliament sayes , that the lords shall not pass any such advocations for causes which may competently be decided by inferiour judges ; therefore it is ordained by the article foresaid , that when the lords pass any such advocations for sums within two hundred merks , they shall write upon the back of the bill , that the lords have found sufficient ground why the cause should not be pursu'd in the first instance , before the inferiour judge ; and this was done to prevent any mistake , and to cause this act be carefully observ'd . this act is formerly explain'd in the act of the par. ja. . the exportation of money being discharg'd by many acts , as ja ▪ par. act . ja par. act . for making these acts effectual . by this act every skipper and merchant is oblig'd upon oath to declare before the thesaurer , thesaurer-depute , or such as are appointed by them , that they shall not carry abroad any more money than is able to make their expence to the next port , and to reveal , either before , or after the voyage , any who does , and that a book shall be keeped in exchequer for that effect ; but this act is not exactly observ'd . because by the act par. q mary , the carrying of victuals , tallow , or flesh out of the countrey , was then discharg'd under the pain of escheating the same , victuals having been then scarce ; therefore by this act it is declared lawful to export corns , when the wheat is under twelve pounds , the bear and barly under eight pounds , oats and pease under eight merks the boll ; and also , to export all sorts of barrell'd flesh for nineteen years , free from custom and bullion , but the custom and bullion here impos'd upon corns exported , is absolutely discharg'd by the act par. ch. . it may be observ'd from the former act of q. mary . that skippers are not regularly lyable for transporting merchandise , forbidden by acts of parliament , except the sanction of the act do expresly strick against them ; since that act is appointed to be extended to masters and skippers , as well as owners of the goods ; for beside that the parliament thought fit to express them , which they needed not have done , if the act had imported it , these words , this act to be extended , seem to imply that the act naturally did not import it ; for to extend an act , or any thing else , is to carry it beyond its natural import . this act imposing great impositions upon english commodities , for the advantage of our own manufactories is in force , but not in observance ; and one of the great dis-advantages of setting the kings customs in tacks is , that it is the tacks-mens interest , that all prohibited commodities be brought in for the advantage they get by their paying custom , and for conniving at the bringing them in . by this act there is a great custom imposed upon victual brought from ireland ; but thereafter by the act sess. par. ch. . importing of irish victual is totally discharged . this act is formerly explain'd in the act par. . ja. . but it is further observable , that by this act it is declared the duty of all s●eriffs , steuarts , and baillies of regality , to cause apprehend all rebels , and to count for their escheats , and to punish all the contemners of his majesties authority , and this is declar'd to be , both by law and the nature of their office , a duty incumbent to them ; and therefore it is fit that sheriffs and others advert to this . this act ratifies by mistake the act par. ja. . but the act that should have been cited , is the act of that parliament ; this act ratifies also the act of this parliament , but it should have cited the . the act it self provides for the maintainance of beggars and manufactures , by putting the one in the other ; but the act was never observ'd , though in it self it be a very excellent act. these acts are explain'd in the act par. ja. . but for further clearing of the act , it is sit to know , that though coals were forbidden of old to be exported by the act par. q. mary ; yet when they grew more frequent , they were allowed to be transported , and custom and bullion is put upon them , viz. two ounces of bullion for every four chalders coals , as is clear by the act par. ch. . and by this act the culross chalder is declared to be the measure by which the custom and bullion is to be exacted ; because as i conceive , that was the least of all chalders : the lothian chalder of coals being generally a third more ; but thereafter bullion being only impos'd upon goods imported ; coals do now pay no bullion , for exporters pay no bullion , and there are no coals imported to this nation . the keeping mercats upon sunday was discharged , act par. ja. . and by this act they are discharg'd to be kept upon munday , or saturday , lest people might be oblig'd to travel to , and from mercats on the sabbath : but by that act it was appointed , that they should keep them upon any other day , not being the mercat-day of the next burgh ; which provision in favours of the next burghs was ill forgot here , vide the observations upon that act. this act is formerly explain'd in the observations upon the act par. ja. . and the act sess. par. ch. . this act is explain'd in the act par. sess. ch. . this act is explain'd in the act of the sess. par. ch. . the bishops having consented by this act to the imposition upon themselves , in favour● of universities , it is declar'd , that this act shall be no preparative for laying on any burden upon the clergy hereafter ▪ without their own consent ; from which it may be argu'd , that though all the rest of the parliament should consent to an imposition upon the clergy , yet that would not be valid , except they themselves consented to it , though the imposition were carry'd by plurality of votes ; but this inference is not concluding ; for the parliament is a collective body , compos'd of the king , and three estates , in which the major part determines the rest ; and if this were granted to the clergy , they being but a third estate ; every one of the other two estates might pretend the like ; and so each estate should have a negative as well as the king : whereas not only craig has determined that the parliament may make an act , without the consent of any one of the states , having stated this question expresly ; but we see that the burrows having unanimously dissented from the act of the session of the second parliament , concerning the priviledges of burghs-royal , the same was notwithstanding past in parliament , and we all remember the memorable story of the burrows , rising and leaving the rebellious parliaments . before the parliament passed the act for allowing the value of annualrents , whereupon a worthy peer said , that since they had sitten so long without the head , they might well enough sit without the tail. by the act of the sess. of this parl. the annuity of pounds sterling being granted to his majesty , to be uplifted out of the excise in manner mentioned in the said act ; by this act the proportion of the said excise is regulated , and laid on upon the several shires and burghs accordingly . nota. this is the only act wherein i find the word grievances . by this act the militia of foot , and horse is establish'd , which was found not to take off the obligation of rising betwixt and according to the ancient laws , for attending the kings host , when called for ; this act declares , that if his majesty have further use for their service , they will be ready every man betwixt sixty and sixteen , to joyn and hazard their lives and fortunes , as they shall be call'd for by his majesty : and though it be pretended , that at least they cannot be called betwixt sixty and sixteen by this act , without an express order from the king : the words running , when call'd for by his majesty , without adding , or the council in this clause , as it did in the former immediat clause of this same act , and which shews that this was designedly omited in this clause ; yet we see that the council does call to the host all betwixt sixty and sixteen , without express warrand from the king , and that the justices fine such as are absent upon these proclamations ; and which is very just , because the king is still presumed to be in the council sictione juris , they re-presenting by their commission his royal person ; and we see by many instances , that rebellions may rise before any such warrand can come from the king. by this act it is declar'd , that these forces shall be in readiness , as they s●all be call'd f●r by his majesty , to march to any part of his dominions of scotland , england , or ireland , for suppressing of any forraign invasion , intestine trouble , or insurrection , or for any other service , wherein his majesties honour , authority , or gre●tness may be concerned , which clause was much excepted against by some in the parliament of england , as if scotland had thereby design'd to authorize the invading of them ; but it cannot be properly said to be an invading of them , if we be call'd by the king ; and the calling of subjects etiam extra territorium is inter reservata principi , and a just right of all kings , as is clear by castal . de imperatore quaest ▪ . num . ▪ and the subjects of this kingdom have been oft-times fined , and fo●efaulted , for not attending the kings host , when they were called to invade england ; nor could any war be mannaged , or rebellion supprest , even in the justest cases , without this . by this act , the ordering and disposing of trade with forraign count●●●s ▪ is declared to be his majesties prerogative ; and though it be alleadged that this act was only design'd as a power to his majesty , for the better debarring english commodities , whereby to bring both the nations to an equal ballance of trade ; which design was said to have been then represented to the parliament , as the only motive for making this act , and that if this were allowed in its full extent , our kings might by debarring us from iron , copper , timber , spices , and other necessars , force us to any condescendencies , or might by this prerogative , grant monopolies at their pleasure : yet i see not how this gloss is consistent with the general words of the act , or with our declaring that this by the law of nations , belongs to all free princes : or with subsequent parliaments , allowing the priviledges granted to the fishing company , the prohibiting of brandy , and other strong waters , and several other things , which are founded solely upon this act. it may be debated , whether under the word forraigners , the english may be comprehended , since we are not treated by them as forraigners in the point of succession , it being frequently decided amongst them , that the scots may succeed to heretage in england , notwithstanding of their statute , debarring alibi natos ; and why then should they be repute as forraigners to us in the matter of trade ; and this were indeed solid reason for both nations ; but since the english debar us from their plantations , and look upon us as forraigners in the point of trade , it is just that we should give them the same measure . king charles . parliament . session . it is observable , that in all the sessions of this parliament , the particular day of the month whereupon the respective acts were past , is set down , and yet since the acts are to take effect , not from the passing , but from the publication , as is clear by the act of this parliament , it would have seem'd more rational to have set down the day of the publication ; to which nothing can be answered , but that the laws are presum'd to be publish'd the day they were past in . in no former parliament the day is set down , but the whole parliament is said to be held upon such a day , and the old use was , that the articles prepar'd all the acts , and they were all past in one day . this act declaring the kings supremacy in ecclesiastick causes , is formerly explain'd in the observations upon the act par. . ja. . it is observable from this act , that the militia is come in place of the old weapon-showings , and that there being foot , and horse granted as a militia , by the act session of the first parliament , which does specifie the particular proportion of horse and foot , to be given by every shire ; it might have been thought , that these proportions could not have been altered but by the parliament ; and yet the king and council having converted the foot of some shires unto horse , seems to be founded upon the last clause of the former act , whereby his majesty is intreated to give directions to his privy council for mannaging of that whole affair , as his majesty shall think fit : which acts of council , and the said alteration of the proportions , are hereby ratifi'd as having been legal ; and in the last clause of this act , his majesties subjects are commanded to obey whatever orders and directions they shall receive from the privy council , relating to the militia , and upon these clauses was founded the overtures of the late conversion of the said to , augmenting the number of the days , wherein the said are to serve , according to what might have been exacted from the whole , so that the are to meet ▪ the number of dayes , because the were oblig'd to meet fourty dayes ; though this last model was by some objected to be a standing force : and all laws are stricti juris , and to be fulfill'd in forma specisica ; but especially taxations , which are a gratuity , founded upon the free offer of the people , as this is , to allow conversions in such cases , would discourage the subjects from future offers . this act likewise did ratifie the acts of council , which appointed the shires to provide at their own charge , colours , standarts , drums , and trumpets , though that might seem an imposition ; but these being necessars , and the natural consequents of the first grant ; and the parliament having granted to the council the former power , as said is , these acts of council are therefore hereby approven as legal . both this and the former act doe ordain the militia to be furnished with fourty dayes provision , which was the old provision , that was ordinarly to be made by such as came to the host ; albeit sometimes twenty dayes provision be only appointed , as in the act par. ja. . and of late the council has ordain'd this provision to be made in money , though it was contended that the parliament having appointed only provision to be made , it was in the power of the persons obliged to furnish their own men according to their conveniency ; but money being thought fitter for expedite marches , the council thought they were authorized by the former clauses , to make this conversion ; and some have thought that by the same power , the council could ordain the shires from whom no proportions of militia was sought to advance free quarter to such of the militia , as could not furnish themselves , or at least , might force them to be the first advancers in cases of necessity . this act concerning the militia is further clear'd by the first act of the third session of this parliament , appointing such as 〈…〉 serve either as officers , or souldiers in the militia , to accept and to take the oath of alleadgeance ; and that those who are set a-part for the militia , be not altered , &c. notwithstanding of all our former excellent acts , for securing singular successors , yet they were still un-secure , because they could not know , if the vassal had resigned his feu ad remanentiam , in his own superiours hand ; for in that case there was no seasin requisite , which is the only register whereby singular successors know , if lands were formerly dispon'd ; and therefore by this act it is appointed , that these instruments of resignation ad remanentiam , ( which are equivalent to seasins , ) be registrated in the register of seasins , within sixty dayes , which is the time appointed for registrating of seasins by the act par. ja. . by this act likewise as in that act , instruments of resignation of lands , holding burgage , are excepted ; but it seems that they must be registrated within the town-court-books within the same sixty dayes ; for the act sayes only , that such instruments being registrated there , shall not fall within the certification . by this act it is declared unlawful to poind moveables upon registrat bonds or decreets , for personal debts , till the parties be first charged , and the dayes of the charge expire ; the reason of which act was , because noblemen and persons of quality were oft-times poinded , and so affronted , and merchants surprized , and thereby ruined , before they knew that a decreet was recovered against them , or their bond was registrated : but this act was found not to extend to other diligences ex paritate rationis ; this being an act restrictive of former laws and customs . from this act are expresly excepted poindings used against vassals for their feu-duties : but this exception was very unnecessary and unproper ; for such poindings did not at all fall under the prohibition of the statutory part of the act , which only prohibits the poinding moveables for personal debts ; exception is likewise made of decreets obtained by heretors against their own tennents in their own courts only ; and therefore it has been doubted , whether tennents may be remov'd and ejected , without a previous charge ; and though upon decreets before the lords , previous charges are necessary ; yet upon decreets of removing before inferiour courts , it is the custom to eject immediatly ; and though this may seem hard , yet it is necessary , because the intrant tennent must remove immediatly , and so must have a place , to which he may remove , & sibi imputet , the tennent who being warned did not provide himself timeously . it is fit to observe from the narrative of this act , that the parliament thought the king and council had power to emit proclamations , commanding the parochs to protect and defend their ministers , and to be lyable to such fines as the council should think fit , besides the ministers reparation , if the offenders were not brought to condign punishment , which shows what great power the king has in the like cases ; and the council are hereby authorized to proceed in taking such courses for the future , which general power may go very far , especially where these courses are otherwise satisfied by necessity . this act is more fully explain'd in the observations upon the act par. ja. . from this act discharging suspensions against bishops , ministers , and other benefic'd persons without consignation : it is observable from comparing the narrative and statutory part of the act , that vniversities and colledges are still accounted a part of the clergy , and have still the same priviledges with them . since we find that the parliament grants acts for naturalization of strangers , as is clear by this and by the act par. q mary . it may be doubted , if the king can naturalize strangers by a deed of his , for else those acts were unnecessary : and in england , though the king can grant a charter of denization , which lasts only for life ; and though it enables a man to transact his heritage to his children ; yet his majesty cannot there naturalize without act of parliament ; and it may be urg'd , that since third parties , who would otherwise succeed , are prejudg'd by the naturalization ; that therefore this cannot be done without an act of parliament ; especially if there be once jus quaesitum to any party : but by the civil law , the prince could naturalize , l. ▪ ff . de jur . aur . annul . of old strangers acquired only usum toga ; and at last were received inter cives , l. . & . ff . de jur . fisci . and with us craig observes , that bona immobilia nemini ablata memini ex eo quod extraneus esset : and i find it decided that strangers may succeed with us , january . . and that strangers doing diligence for their debts , may enjoy and affect lands in scotland , seems more favourable , for else there could be no commerce , for without this none would trust our merchants or countrey-men . the design of proving trade , by naturalizing strangers , has been very ordinary ; for as plinius remarks nunc factum est ut gens altera alterius suppleret inopiam & ut quodam modo quod genitum esset uspiam apud omnes natum esse videretur in france lewis the . did upon the same design naturalize those who traded in the hanseatick towns. to encourage the exportation of commmodities , the bullion which was formerly payable by the exporters , by the act par. ch. . is by this act imposed upon the importers . by this act all arrestments on registrated bonds , or contracts , or decreets not pursu'd and insisted on within five years after the date : and all arrestments upon dependences shall prescrive , if not insisted on within five years after sentence ; so that there is here a new visible difference betwixt arrestments on dependences , and arrestments upon decreets , but upon the matter that comes to be the same ; for all arrestments upon dependences , are likewise by this act to prescrive within five years from the sentence , that is to say , from the decreet ; so that utrobique the prescription begins from the decreet . by this act likewise , ministers stipends , multures , bargains concerning moveables and sums of money , that are probable by witnesses , are after this act declared only probable by writ , or oath of party after five years ; and all actions upon warnings , spuilȝies , ejections , arrestments , or ministers stipends , are to prescrive within ten years , except they be wakened every five years , but prejudice alwise of any of the saids actions , which by former acts of parliament , are appointed to prescrive in a shorter time ; which exception is here added , because of the acts , , and . par. ja. . by which spuilȝies , ejections and removings , did prescrive within three years ; yet if any action was intented upon them , it did not prescrive otherwise than in fourty years : therefore by this act , these actions are ordained to prescrive in ten years , except the action be wakened ; that is to say , a new summonds raised and executed ; for the raising of a summonds is not sufficient in any case to stop prescription , vide observations upon these acts. it was sound , hamilton contra herreis , march . . that this act was not to be extended to the teind-duties due to bishops , or other titulars , being only a correctory law : and in the case pursued by sir william purves contra it was debated that a part of what was due to the minister , could not prescrive , because it was mortified money , and mortifications are not appointed to prescrive by this act ; but the lords found that if a mortification became a part of a stipend , they did prescrive by this act , though of their own nature they do not prescrive : holograph missive letters , and holograph bonds and subscriptions in compt books , without witnesses , not pursu'd on within twenty years , are only to be proven by the oath of the subscriver , so that if the subscriver die , these debts die with him . i remember the parliament expresly refused to limit bills of exchange to this time ; though these be holograph papers , because these beng the vehicles and supports of trade betwixt us and forraigners , ●hat were to limit them by too narrow statutes . these prescriptions are ordain'd not to run against minors ; and from this and the next act it may be argu'd , that prescriptions regularly run against minors , except they be secured by a positive statute . because citations do interrupt the current of a prescription ; therefore this act does appoint that only executions by messengers shall interrupt , which was done to exclude sheriffs ; in that part messengers being persons of publick trust , and who find caution ; but though this act mentions only messengers , and that it is correctorie of a former custom , and consequently ought to be strictly interpreted : yet citations by heraulds or pursevants will interrupt ; nam majori inest minus : it was alleadged that this act should extend to all interruptions , so that if an interruption had been made in anno . it should be renew'd after this act ; for the act says , that all interrupions shall be renewed evrey seven years : but it was found , february . colstoun contra barefoot . that only such interruptions should be renewed as were made since the act of parliament ; for the first part of the act bears , that all interruptions as to rights of lands , shall in all time hereafter be executed by messengers : and the last part of the act must be interpreted according to the first , and agrees with the general nature of laws , quae futuris tantum dant formam negotiis . since this act is only to extend to interruptions , concerning the rights of lands , some have doubted , whether it should extend to heretable bonds and servitudes . by our former law explain'd in my crim . prac . tit . treason ; it appears clearly , that no man could be forefaulted in absence , except before the parliament ; but this being thought a great incouragement to rebellion , the justices did , upon an advice from the lords of the session , alter the conclusion of criminal libels for treason , making the certification to be , that probation should be led against them , and they should be forefaulted , as if they were present ; and therefore by this act , these decreets of the justices are ratified , and for the future , it is ordained , that such as rise in arms in open and manifest rebellion against the king , may be forefaulted before the justice court : so that this method can only be taken against such as are guilty of perduellion , but not in statutory or other treasons , such as the raising a fray in the kings host , drawing treasonable papers , &c. for these can yet only be forefaulted before the parliament , though they may be declared rebels before the justices : and it has been doubted , whether the hounding out to open rebellions , or the resetting those who were at them , be punishable by the justices in absence ; for art and part is by the act par. ja. . to be punishable as the crime , whereof it is an accession , and it really deserves oft-times a severe and speedier animadversion : and thus a noble-man of great interest plotting , o● hounding out , is more dangerous than a tennent who actually rises in arms : but on the other side it is urg'd , that rising in arms is to be pursu'd so in absence , because the probation is so notour , that it can hardly be deny'd , but the probation of secret treasons may be more dangerous , if taken in absence . it has been doubted , whether such whose forefaultures were ratifi'd by this act , could be thereafter admitted to propone an exculpation , since the justices could not rescind sentences of parliament ? and whether such as are forefaulted before the justice-court , can be admitted to propone any such exculpation upon their being alibi ? ( or else where ) or that there was two of the same name , or to object against the witnesses , for the persons forefaulted being cited , sibi imputent , that they appeared not ? and if this were allow'd , forefaultures might be easily evacuated ; and whatever might be said as to alibi in the first instance , yet it were hard to reduce a decreet upon it , and except the person forefaulted could prove an invincible necessity , why he could not come , or send , certainly none of these d●fences can have the least shadow of justice ; nor is it sufficient to say , that they were either afraid , or out of the countrey ; for these are the ordinary defences of such as are guilty , and any guilty person might go out of the countrey purposely to have this defence . the method now observ'd in forefaultures in absence , before the justice-court , is , that the advocat raises a libel of treason with the former certification , he sends a herauld with a displayed coat , to give the citation , and sends witnesses alongs , who at their return , swear that they saw the execution truly executed ; because that was found to be the form before the parliament . then the witnesses are adduc'd , after the relevancy is cleared by interlocutors , who are examined whether they knew the party who is to be forefaulted , which excludes the defence , that there were more of one name , as the purging them of partial council does all objections against the witnesses , that can be thereafter founded upon , since it was their own fault , who compeared not to object . the advocat uses ordinarly to cause cite the pannals upon sixty dayes , and at the mercat cross , and at their dwelling-house , lest they be out of the countrey ; at all which places , copies of the libel , the names of the assizers , and witnesses are left . though ordinarly the advocat , for further terror , causes renverse , and tear the coat of the persons forefaulted , in the justice-court , with sound of trumpet , after the doom of forefalture , and proclaim them traitors over the cross with sound of trumpet ; because that solemnity is observed in forefaultures before the parliament ; yet this is not thought absolutely necessary . it is observable , that in the process against the earl of mar and others , for taking away king james the sixth from stirling : and the earl of gowries forefaulture , the summons were before the king , parliament , and his justices , and the doom is , the king with the advice of his parliament , and his justices : some think the justices sit only in parliament , as the judges sit in england ; but the summons having been before them , insinuats that they were conjunct judges , and not assessors . the probation in that case is led before the lords of articles , and not before the parliament ; but in anno . the probation was led in plain parliament , and this is juster , because the parliament is the grand inquest . the last words in the act , viz. if the said summons be found relevant , and proven by the verdict of an inquest , are wrong pointed ; for the summons cannot be found relevant by the verdict of an inquest . by the act par. ch. . forraign salt to be employed upon fishing , was to be free of custom and excize ; but by several acts of exchequer thereafter , all fishes spent within the countrey , lost that priviledge , and by this act the importer is ordain'd once to pay all the excize on forraign salt , which is to be re-pay'd by the customers , to such as can by certificats prove , that the same was employ'd upon fishes ; and though it was pretended , that this could not prejudge the importer , since he was to be repay'd , if the salt was imploy'd upon fishes ; whilst on the other hand , it would secure the kings customs , and would keep out much forraign salt , whereof very much was now brought in , upon pretext of being employ'd upon fishing : yet to this it was answered , that this would destroy the design of fishing companies , and shew too much the inconstancy of our parliaments . . many poor families were employ'd in fishing , who would get credit for salt , and yet would not get money to pay the excize thereof per advance . . fishers were sometimes forced to bring in great quantities of salt , being uncertain what quantities of fish would be taken ; and oftimes they would lose their salt altogether . . this and all such methods , which subjected the merchant to the customer , destroyed trade , and in this case they had but a personal action against publick servants for their advanced money , and probably these publick servants would not have so much money at once in lews , l●chsine , &c. as would pay back the excize of fishes exported out of these places , and beside that , the customer might retard the merchant at his pleasure . . the poor merchant behov'd still to make two unnecessary voyages , one to pay the excize , and another to seek payment . by this act likewise , the merchant is ordained to give his oath upon the custom and excize , though by the act par. ch. . their oaths are discharged in matters of custom . this act annexing orknay and zeatland to the crown , is explain'd in the observations upon the act par. ja. . by this act it is declared lawful to export corns , except when the same is discharged by the council , upon the account of dearth , and to encourage exportation , corns are to pay no custom , bullion , or other duty , except one merk scots for ilk chalder , vid● observations upon the act sess. par. ch. . by this act the lords of the privy council are empowered to regulate the prices of ale and drinking bear , and to settle a proportion betwixt the weight of the bread and the boll of wheat , and the price of the ale , and the boll of bear ; upon which warrand , the privy council do not pretend that they can settle a price upon victual , but that they may thereby only proportion the price of the one with the other , so that they may discharge malt-men or baxters to give less than such respective prices , when they sell their bread and ale at such and such rates , as they did by their proclamation in the years . and . by this act malt-men are likewise discharged ▪ to have a deacon , and least this act should be eluded , it is appointed , that no malt-man shall keep correspondence , nor meet upon any pretext whatsoever ; and therefore i conceive , that such towns as appoint , that none shall brew except gild-brothers ; and in meettings of the gildry , treat of , and settle the prices of malt , seed , and bear , do thereby contraveen this statute , vid. act par. ja. . this act having appointed , that sheriffs and others , may conveen all tennents , and cottars , &c. for repairing high-ways , and bridges , at any time betwixt seed-time and harvest ; and that being found too short a time , it is therefore appointed by the act of the second session of this parliament , that they may be called the same number of dayes , in any season of the year , seed-time and harvest excepted . this act is explain'd in the observations upon the act par. ch. . this act is explain'd in the observations upon the act par. ja. . this act is explain'd in the observations upon the act par. ja. . by this act the shires of ross , sutherland , caithness , argile , and inverness , are declared to be lyable in the double of the excize , and of the taxation then current , laid on by the convention , in case of their being deficient ; against which act , it was alleadged at the passing thereof , that this seem'd very unjust , since as to both these , one shire could not be put in a different condition from the rest , in a common concern ; but that the legal way was , to use stricter execution against them ; and whatever might be done at the first laying on of an imposition ; yet after it is laid on , this seems hard , for probably these shires would not have consented , if they had foreseen any singularity , nor did they consent to the excize , but upon equal terms with other shires , and this was yet much harder , because both these taxations were voluntar offers , and consequently should not be otherwise exacted , than in the terms in which they were offered . likeas , this would discourage any shire for the future , to offer , or consent to taxations , because they could not know but a prevailing party , or the passion of some leading men , might raise to the double what they consented to ; which reasons were so convincing , that this act was never put in execution ; nor do i think it could , without a previous declarator , finding that these shires had incur●ed the duplication , by failing to pay their shares ; for otherwise , his majesties collectors , and cash-keeper might exact the double , when it was not incurred ; and we see that all other irritancies , even imposed by the parliament , such as ob non solutum canonem , require a previous declarator , and are purgeable at the bar. king charles . parliament . sess. . this act is explained in the observations upon the only act of the par. ja. . some phanaticks having , against the laws and customs of nations , refused to depone , when they are call'd as witnesses against those of their own opinion ; it is declared by this act , that such as refuse , shall be banished and fined . qui testimonium dicere recusant paenalibus mandatis compelli possunt , l. si quando & auth . seq . c. de testibus , vid. ruland . de commiss . part . lib. . c. . & mortaliter peccant . c. quisquis quaest . . cap. . x de test , cogend . it may be doubted , whether such as refuse to depone in matters of treason , may not be punished as concealers of treason ; for this is in effect the worst kind of concealing ; for others may conceal , because they fear want of probation , or upon other designs , without any malice , but this still proceeds from design ; and it seems that in all other crimes , he who refuses to depone against a delinquent , is as guilty as he who rescues him by force from the hand of justice ; for the contempt of authority is equally great in both , and the prejudice arising to the common-wealth , is the same . it is declared by this act , that nothing that any man depones against another , shall operat against himself , as to the loss of life , or member , or banishment , which seems to be ill conceiv'd ; for nothing that a man depons as a witness , can operat against himself de jure , as to any effect ; but it seems the design of the parliament has been , that parties should be obliged to depone upon conventicles , and resetting off , and intercommuning with rebels , not only as witnesses , but as parties ; and in the words immediatly before , it is said , that they should be forced to depone in those things , for the more speedy execution of justice : but to take off all scruple in this , the king by his letter in anno : allowed his advocat to declare , that he did insist only , ad paenam p●cuniariam & arbitrariam ; and that thereupon they might be forced to depone in these cases ; but it being alleadged that this declaration was not sufficient to force people to depone : because . resetting of rebels imported infamy , because it was treason , & nemo tenetur jurare in suam turpitudinem . . no declaration without a remission past the great seal , can secure a man in such cases ; yet both these defences were repelled by the privy council in the case , kings advocat contra laird of duntreath , june . . for as to the first , it was answered , that some crimes did defame omni jure , as incest , adultery , &c. and in these a man could not be oblig'd to depone against himself , because the kings declaration could not take away the stigma impressed by the laws of god and nature : but in crimes introduc'd only by the municipal laws , in favours of the king and his government , the infamy may be taken away by the declaration ; and where the kings advocat declares , he insists not in it as a crime , but as an irregular transgression ; the confession does not defame , because no crime is acknowledged . to the second , it was answered , that there needed no remission , where the irregularity was not pursued by way of crime : remissions being only of crimes , and there was nothing more ordinary , than for his majesties advocat in all courts , to restrict his pursuits to arbitrary punishments , as in the cases of mutilations , hamsucken , &c. such as assault the lives of ministers , or rob their houses , or actually attempt the same , are to be punished with death , and confiscation of goods ; by actually attempting , i understand not nudum conatum , but what the law calls actum proximum , as the shooting a pistol , which misgave ; and this further justifies the procedure against mr. james mitchel , who shot actually at the bishop of st. andrews ; for though this act was posterior to that deed , though not to the process , yet it shews what was the thoughts of of our parliament , as to attempts , and so was sufficient to inform judges , how to explain the dubious word , invade or pursue , us'd in the act par. ja. . by this act , the fines appointed for house-conventicles , are for every man and woman having land and heretage , liferent , or proper wodset , a fourth part of their valued yearly rent ; each tennent , twenty five pounds ; each cottar , twelve pounds ; each serving-man , a fourth part of their fee ; each merchant , or chief trades-man , to be fin'd as a tennent ; and each inferiour trades-man as a cottar ; if their wives or children be present at house-conventicles , they are to pay the half of the respective fines ; and if themselves be present at field-conventicles , they are to be fin'd in the double of these respective fines ; so that though the act do not specifie wives and children , yet they are to be comprehended under the word others . field conventicles are by this act declared to be meetings where any shall without licence or authority , preach , expone scripture , or pray in the fields , or in any house where there are more persons than the house contains , so that some of them are without doors ; which last alternative was added ; because some , to shun the double avail , preached within a little house , many thousands being without . it has been doubted whether those who were within , and knew not that any were without , can be punished as a field-conventicle ; for though versabantur in re illicita ; yet it was such , a res illicita , as had a determined and different punishment , and it were hard that where the punishment is death , as it is for the minister preaching at a field-conventicle , that he could be overtaken , where he could not know his guilt . it seems by this act , that if the house could hold more , though some were known to be without doors , yet that meeting could not be call'd a field-conventicle , since the act sayes , or in any house where there be more persons than the house contains , and the reason inductive of the act ceases in this case . by this act magistrats of burghs-royal are fineable at the councils pleasure , for each conventicle keeped within their burgh ; but that which was thought somewhat severe by the burrows , was , that they should have been fin'd , where they discovered the conventicles themselves , since in law , diligence can only be requir'd in magistrats ; and in policy it seems , that this would discourage magistrats from doing diligence to discover ; nor is it sufficient that by this act they have relief from those who were present at the conventicle , since these oft-times are neither known , nor able to relieve . the master and mistres of the house likewise where the conventicle was kept , are lyable to relieve the magistrats , upon which ground , an act of council was made , making the heretor lyable for the fines ; against which it was objected , that the parliament 〈◊〉 not the heretor lyable , but the master , which is the lands-lord , who because he is present , may hinder the keeping of conventicles in his house , which the innocent heretor , who may be very remotely absent , cannot . by this act the minister who preaches at field-conventicles is punishable by death ; but the minister who keeps house-conventicles , cannot be so much as fin'd , for he is only ordain'd to find caution not to do the like thereafter , under the pain of five thousand merks , or to enact himself to go out of the kingdom , and not to return . by this act the half of the fines are declared to belong to sheriffs , stewarts , lords of regality : and therefore by the act of the sess. par. . they are ordained yearly to give an account of their proceedings to his majesties privy council , under the pain of five hundred merks : in which act this act is explained as to some other points . by this act , such as offer their children to be baptized by any but their own ministers , or by such as are authorized by the council , in absence of their own minister , upon a certificat from their own minister , or in his absence , from one of the neighbou●ing ministers , are to be fin'd , i● an heretor , in a fourth part of his valued rent ; every person above the degree of a tennent , having only a personal estate in an hundred pounds scots ; every inferiour merchant , considerable trades-man , and every tennent labouring land in fifty pounds scots ; every meaner burges , trades-man , and inhabitant within burgh , and every cottar in twenty pounds scots ; and every servant in half a years fee : but because upon this act , these who would not conform , did , to shun these fines , delay to baptize their children ; therefore by the act sess. of this parliament , the same fines are impos'd upon such as keep their children unbaptized for thirty dayes . this act is formerly explain'd in the act sess. of the par. ch. . but for further clearing thereof it may be observ'd that since by this act husbands are not made lyable for their fines , as by the act of this parliament ; it was urg'd , that therefore they could not be fin'd for them ; since it was presumeable they were designedly left out here , because tho a man may hinder his wife to go to a conventicle ; and therefore was justly punished by that , for her going , whereas no man can force his wife to go to church ; and therefore he was not to be punish'd for her in this act : it was also urg'd , that laws should not be extended de casu in casum , where it was probable , that the ommission was design'd ; and so tho adjudications and comprisings were equipollent diligences by our law , yet it was found that an adjudger was not lyable to pay a years rent for his entry , as a compryzer was , because the statute appointing the one , had not exprest the other ; and therefore an express statute was made , for extending this to adjudications , which is the act par. . ch. . and this extension was less favourable , because it was a penal statute , and it was against the principles of law , that one person should be punished for another ; to which it was answered , that the parliament had refer'd the regulation of conventicles to the council , and had invested them for this end , with their own full power to prevent the cheats that might be invented , and the dangers that might ensue . . this being a matter of government , must be interpreted so , as to preserve the government ; and if wives who were the half , and the more humorous half of scotland , were allow'd to abstract , all the other remedies would be ridiculous , and they would debauch their children , tennents , and servants , as well as influence their husbands . . in all other cases they were lyable for their wives , for conventicles , by the said act for popish withdrawing and superstitions by the act pa. ja. . for their vvives swearing and cursing , by the act pa. sess. ch. . in all which acts , the parliament considered more the good of the kingdom , than the advantage of private parties ; and extensions are allow'd in favourable cases ; and there is none more favourable than this , especially since the vvomen began the last rebellion , and since the council has ordained men to be lyable , the countrey was become much quieter . . there being a communion of goods betwixt man and vvife , it was just that the husband should be lyable for his vvife , and so he should pay her debts , whereof this withdrawing was one ; and if he offer her to the magistrats , and do not converse with her , he is to be free , and so he can only blame himself . the council having transmitted th●se reasons to the king. his majesty found that husbands should be lyable for their wives ; but declared that husbands who were loyal , and would take the oaths of allegiance and test , should be favoured in the exacting of such fines . this act is explain'd in the act par. ch. . and act par. ch. . and the exemption from taxes here granted to the senators of the colledge of justice is also allow'd to the counsellours of the empire , bocer . de regal .. c. . and to the counsellours of france , papon . l. . c. . and is extended in both these kingdoms to their widows , arg . l. . c. ad . l. ●ul . de adult . vid. jac. benium . privil . juriscon . part . . n●m . . this act is explain'd in the act par. . ch. . king charles . par. . sess. . this act is explain'd in observations upon the act par ▪ ch. . this act ordains that no tutors or curators to be named or designed to any pupil , minor , idiot , or furious person , shall exercise their office , till they first make inventar of the pupils writes , evidents , means , or estate , with the consent of the nearest of kin , of the fathers side , and of the mothers side , in manner specifi'd in the act , and if the nearest of kin refuse to concur , for making inventars , they are to be summoned by the tutor for that effect , with certification that if they be absent , the tutor is to make an inventar before the judge ordinary , to the end it might be known what the tutor or curator might be charged with . observ. . that since the act only says , that no tutor , or curator of any pupil , minor , idiot , or furious-person , shall exercise ; it may be doubted , whether a curator bonis datus , should be comprehended under this act , because he may fall under none of these denominations , though the reason of the law extend to him ; as for instance , if a man should tailȝie his estate to a. and failing of him to the second son of b. which failing , to the second son of c. if a. died , b. being alive , but having no second son , the king might nominat a tutor to mannage the estate , till it were known whether b. would have a second son ; and therefore it had been clearer to have said in the act , that no tutor nor curator should exercise , &c. observ. . that the words , no tutor or curator nam'd , or design'd , might have been better expressed , by suppressing these words , nam'd or design'd , for that is not the proper words of stile . observ. . that since the act requires only the consent of the nearest of kin of the father and the mothers side indefinitly ; this is found by decisions to be so interpreted , as that two of the fathers side , and two of the mothers side are only requisite , conform to the act par. queen m. and though tutor datives were formerly granted summarly by the king in exchequer ; yet by this act it is appointed , that the craver of such gifts shall cite the nearest of kin upon both sides , that is to say , two of each , as has been also decided . this act is formerly explain'd in the act par. sess. ch. . all law having thought fit to use more citations than one in matters of importance . by our forms before this act , he who raised a summons , caused execute the same by any person he pleased , who is call'd a sheriff in that part ; after which he did get an act of continuation from one of the clerks , and a second summons ; both which were called act and letters , and were sign'd by the clerk ; but because that was expensive and troublesome ; therefore by this act , these act and letters are taken away , and two citations upon the first summons are declared to be sufficient : as also , because of old , the execution of summons did only bear , that the messenger cited the parties within exprest , without mentioning the particular parties ; therefore sometimes the execution of another summons at the same parties instance , was cast on upon a summons , which it may be , was never execute ; as for instance , if i had rais'd a summons of reduction against b. and another against c. the executions against b. would have been sufficient against c. though c. had never been cited , and so would have interrupted a prescription , or would have produced any other effect against him , which being alleadged in a case of rowallans ; it is by this act appointed in times coming , that all executions of summons shall bear expresly , the names and designations of the parties , pursuers and defenders , and that it shall not be sufficient , that the same do relate generally to the summons , otherwise the execution shall not be sustained . and though it was alleadg'd , that this was only to hold in cases of prescription , but in no other case ; yet it was found to extend to all citations indefinitly ; and therefore a citation against mr. james alexander , having no designation , but husband to such a woman , and bearing only relation to the letters within-written , was not sustain'd ; but yet the lords thereafter upon the helping the execution , allow'd the same , the messenger having abidden by the execution . it is fit to know that there are three seals in scotland , the great-seal , privy-seal , and quarter-seal ; the great-seal is properly design'd to be appended to heretable rights , and the privy-seal for moveables , and the quarter-seal is but the testimonial of the great-seal , and generally it is appended to papers that are subservient to heretable rights , such as precepts of seasin , presentations to forefaultries , &c. the chancellour keeps the great-seal , the lord privy-seal keeps the privy-seal , and the director of the chancery keeps the quarter-seal ; for as the quarter-seal is but a seal subservient to the great-seal , so the director of the chancery , is an office● depending upon the chancellour . the servants of the chancery , and privy-seal office , having been in use to give out the papers that were to pass their registers , before they put them in a minut-book ; so that such as desired to know what passed those seals , could not know the same ; therefore they are by this act ordain'd to registrat all writs that pass their office , before they give them out , and to make a minut-book . nota , that in the chancery-chamber there are two kinds of registers , one of parchment , for charters , and such heretable rights , and other two in paper , one for temporary rights , such as gifts , pensions , &c. in which likewise , adjudications , and comprisings are included ; for though these be heretable , yet they are but temporary rights , being redeemable ; there is another paper register likewise for retours . of old , the precept of seasin did pass the quarter-seal , but because that was expensive and troublesome , therefore they are now ordain'd to be ingrossed in the charter , and so pass the great seal only . by this act likewise ; charters which were formerly in a large skin of parchment , are by this act ordain'd to be written by way of a book , that they may thereby be the more commodiously read , the line being very much shorter in the one than in the other . by an old custom in scotland , burgesses might have arrested strangers , if they found them within their burgh , till they faud caution to pay them what was due ; but by this act , this is restricted to horse or mans meat , abuilȝiments , or other merchandise , for which they have no security ; which act was found not to extend to such as lived upon the borders of either kingdoms . the custom having been amongst the borderers of each side , to cause one another find caution , judicio sisti & judicatum solvi , lest otherwise the english might have drawn the scots to london , or the scots the english to our session , laws unknown to either ; and therefore since the english continued this custom after this act of parliament , it was fit that the scots should have the like priviledge of arresting such as dwell in england , january . . bell contra robertson ; and it was found by the council , that the same custom had been , and therefore should be allow'd to sheriffs , and other magistrates without burgh , so that the sheriff upon the borders may arrest any english-man till he find caution judicio sisti & judicatum solvi . by this act burghs of regality and barony , are discharged to arrest , or incarcerat any person who are not burgesses , or inhabitants in their burghs for any manner of debt , which seems to imply that they may arrest their own burgesses , who are inhabitants : likeas de facto , they use to arrest such . this act having discharg'd all such arrestments , except for horse or mans meat , abuilȝiments , or other merchandize ; the lords february . . found that a merchant could not arrest a stranger within burgh , until he should find caution to answer as law will , for payment of the price of a bargain of victual , which had fallen to the said burges as a part of his fathers stipend , and consequently was of the nature of other ferms , though it was alleadged , that this did fall under the word merchandise ; and that corn so falling to be due , might as well fall under this act , as a merchands shop falling under executry or legacy . this act ordains that no person shall ordain , or be ordained ministers , except in the way prescriv'd by the present government of the church , under the pain of banishment and confiscation , and whosoever shall be married within this kingdom , by the foresaid persons ; or any not authorized , they shall amit and lose any right or interest they may have by that marriage , jure mariti vel jure relicti , and that by and attour the penalty contained in the act which is the act par. ch. . upon this act his majesty having gifted the jus mariti of hume of kimmorghame , who had mar●ied the young lady aiton , and a declarator being pursu'd at the donatars instance· it was alleadg'd , that first , the person who married them had a licence from the arch-bishop of st. andrews to preach . . that the jus mariti was not declared by this act to fall to the king , but only that the husband had amitted the same ; and that the king can have right to no confiscation , except where the same is expresly declared to belong to him by the statute , which inflicts the confiscation . to which it was answered , that as to the first , no man could marry any within the paroch of any minister , without leave from that minister , who could only understand whether the parties might be married lawfully ; nor is the being ordained a presbyter sufficient , since that gives only power to preach , but not to baptize , or marry ; marriage especially requiring proclamation of bonds , which is de officio parochi . to the second it was answered , that by law all confiscations cedunt fisco , whether the act appoint so or not , this being the very nature of confiscation , as is clear by peregrin . de jur . fi●● . lib. . cap . num . . for cui competit accusatio , ei desertur poena ; nam poena est effectus tantum accusationis ; and penalties being introduc'd in sol●●ium ejus cui fi● injuria , that should belong to the king , to whom the injury was done . . the design of the act was to punish such as transgressed , and contemned the government of the church , whereas it were no punishment for the husband to lose his jus mariti , if the same fell to the wife . . if it fell to the wife , she was uncapable of it , being in the same delict . . nothing by our law can subsist in the person of the wife ; and therefore if the husband do renounce his jus mariti in favours of the wife ; it does by our law return to the husband . . if this were allow'd , not only might the wife in other cases , and particularly in this be rewarded for transgressing the law , since for marrying irregularly , she would have ●●ight to the jus mariti of her husband ; but this would prompt all humorous women to marry irregularly , that they might get a jus mariti , and administration of their husbands estate , and dominion over him . . if this were allow'd , the husbands creditors might be easily cheated , for they might marry disorderly , and so their creditors could have no right to the jus mariti , and this would open a door to those frauds , against which our law has so seriously guarded . it may be doubted from these words of the act , whosoever shall be married within this kingdom , that such as are married without the kingdom , incur not this penalty , though they should go upon design , which if it were allow'd , would frustrat absolutly the act , for the transgressors might still go over the border and be married : and by the said act par. . all persons having their residence in scotland , are discharged to get themselves married in england or ireland , without proclamation in scotland ; and since the law looks upon actus elusorios , as inefficaces ; so that if a man should go out of scotland to shun a citation , to the end another compriser may be prefer'd , coming back after he is cited by the first upon sixty dayes , to the end the second may cite him upon a shorter time , and so be able to lead the first comprising , the first citation would be preferr'd , and consequently it were unjust that this which is a greater collusion should be allow'd . this sumptuary law against apparrel is restricted , and explained by the act sess. . of this parliament , and the whole act is now in desuetude . this act is explain'd in the act sess. . of this parliament . this act is explain'd in the act par. sess. ch. . this act is explain'd act par. . q. mary . in all retoures it is usually exprest , whether or how the lands are in his majesties hands , as if they be in his majesties hands , by vertue of ward , the retour bears it , but since the retour did not use to bear the taxt of the marriage , or of the feu cum maritagio ; therefore this act appoints these to be exprest , and the reason why i think these were not exprest formerly , was because taxt-ward was a very late invention , and lands holding feu cum maritagio is a very extraordinary thing , and so the inquest took no notice of either . this commission for plantation of kirks differs nothing from the commissions given by the other parliaments , but only in that the power whereby titulars were forced to sell to each heretor his respective teinds is only to last for three years after this act , so that all that great design ends here , except it be reviv'd by the next commission ; but if the impediment during that time , flow from the titular by reason of his minority , or other inability , in that case the heretor who offered to buy his own teind , is to have place to buy his teind as soon as the impediment is remov'd ; but the act does not express within what time : and therefore it would seem , that except the heretor offer to buy during the minority , and did really renew the offer to buy , immediatly after the minority , or inability was over , he cannot have place to buy . it is also declared , that if the heretor be minor , and his tutors neglect to buy his teinds , the minor shall have action for years after his minority to compel the titular to sell them ; but the act is ill conceived , not mentioning curators ; but the giving power to buy after minority , includes both ; but it may be doubted whether this should extend to idiots and fatuous persons ; or where there is tutor bonis datus ob non existentiam haeredis : and it seems the liberty to buy , should be extended to their heirs for two years after they succeed , or two years after furious persons reconvalesce . the king in anno . by a commission under the great-seal , did impower noblemen and others to regulat the judicatures ; and these regulations set down by them , are here ratifi'd : but it was objected , that this could not have been done in law , because by the institution of the colledge of justice , and particularly by the act par. ja. . the session has power to make sick acts , statutes and ordinances , as they shall think expedient for ordering of processes , and hasty expedition of justice : and it was thought strange how noblemen and gentlemen , who understood not forms of process , could regulat incident diligences , and the ordinary terms in reductions and improbation , which with many other things specified in these regulations , were so much matter of form , and were so little to be known by the strongest reason that the greatest lawyers did oft-times understand less of them , than the ordinary leaders of processes . the first thing in these regulations is , the roll in which all causes are to be taken up , and are ordain'd to be discuss'd according to the dates of the returning of processes ; which roll was formerly in use , though by the article it was here added , that if any cause should be call'd by anticipation out of its due place , the pursuers advocat might refuse to insist , or the defenders advocat to answer ; and upon this article it was , that the lord almond appeal'd to the parliament ; because in the action at dumsermlings instance against him , there having been a debate in the outter-house , reported to the lords , they had ordain'd the cause to be summarly heard before themselves in praesentia ; whereas by the article , where the lords upon intricacy , ordains a cause to be heard in praesentia ; the process should have been insert in the roll of the inner-house , according to the date of that deliverance ; which article being controverted : it was alleadg'd that by this article , almonds procurators were not oblig'd to debate . to which it was answered , that though where a cause is ordain'd to be inroll'd , it must be heard according to that date ; yet that did not hinder the lords to call in any cause for clearing the terms of a debate in the outter-house , reported to them , before they give their interlocutor therein , which , as needing no inrolment , falls not under this article ▪ and this course of calling in advocats summarly , for clearing some points , is ordinarly us'd without inrolling causes in the inner-house , roll ; but after a cause is once inrol'd in the inner-house roll , it must be heard according to its date . the council sometimes likewise when they sustain themselves judges competent to ryots , do , if any defence be propon'd before them in point of right , remit the matter of right to the lords of session ; but ordain it to be discussed summarly , without attending this enrolment , to the end , that when the matter of right is discuss'd ▪ they may know how to judge the ryot . as to the and articles , vide observations upon the act sess. par. ch. . by the article , it is appointed , that the advocat who returns the process shall give out all the papers , whereupon he resolves to found his defences ; which was done to prevent the pursuers being forc'd to take a time to see those papers , upon which the defence was founded ; but this was found unpracticable , because the defenders advocats knew not what would be found relevant , or not ; and therefore the defenders advocat does now propone his defence , and if it be found relevant , he takes a day to prove it as formerly . the difference betwixt outter-house and inner-house advocats , which was appointed by the regulations is omitted in this act , which confirms the regulations without that distinction . before this act in incident diligences , four terms were allowed for producing the writs , which were accidentally crav'd to be produc'd : the first was letters , with certification , that if the havers produc'd not , other letters would be direct against them , charging them thereto simpliciter . . that letters of horning would be direct . the third was horning . the fourth was caption . but by this act , the first diligence is appointed to be horning . the second caption , which may seem too short ; for it is hard that third parties should , without any previous advertisement be charged with horning ; for though no escheat will fall on this denunciation ; yet the rebel will upon this denunciation be debarr'd , ab agendo , beside other inconveniencies . as to the regulations concerning the justice-court , it has been doubted , whether they extended to justice-airs , or circuit-courts ; and therefore it was doubted , whether a citation given to a pannal who is in prison , might be given upon fewer than fifteen dayes in a justice-air , and the judges inclined to think , that these regulations extend to justice-airs , as well as justice-courts , as to all the articles here exprest , since orders are given by the parliament for regulating justice in these regulations , which shew the parliament design'd to extend them to both . from these words in the ninth article , that the chancellour of the assize mark how every individual assizer shall vote whether he condemns or asseilȝies , it clearly follows , that no assyzer in criminals may be non liquet : and if this were allow'd in one , it might be in all ; & because this was not necessary formerly ; therefore by the act par. . ja. . it was ordain'd that when a summons of error was rais'd , each assizer was to set down who assoilȝed , and who condemned ; but because they might forget , or for fear of punishment , might be unfaithful in this ; therefore this act appoints , that in the first verdict it shall be marked who condemned , and who assoilȝed . albeit this act appoints that the chancellor shall mark whether every man assoilȝes or condemns : yet it is thought the omission of this would not annul a verdict in favours of the king , that being only introduc'd in favours of the king , to the end that his majesties advocat may be instructed whom to pursue in a summons of error , when a party is wrongously assoilȝed . by the article it is appointed , that when any summons of exculpation is executed against any party , that at the same time the names of the witnesses and inquest should be given , to the end the party may know what to object against the witnesses : upon which article it was alleadged that when an exculpation was rais'd against the king , the witnesses names should be given to his advocat likewise ; and which the justices found to be necessary in march . for the act being general as to all ; and there being as great reason that the king should know those who are to be led against him , as any privat party , he ought to have the same measure : and whereas it was objected , that it were a very severe thing , that a poor pannal might not lead any witness , even during the debate , though his name had not been given in list ; yet this has no weight , since the act is so clear in general terms as to all : and it may seem as unreasonable that the king should not be allow'd to lead any witness to prove a crime , if he find him in the court the time of the debate ; for the pannal may much better , know who can prove his defence , since he behov'd to know them , if they were present , than the kings advocat can know who were present when the crime was committed ; and though there may be some inconvenience in this , for one particular pannal , yet in the general there is great advantage in this to pannals , the king being thereby forc'd to give in the names of his witnesses , so that the pannal may not only know how to object against them , but even how to practise them : and whereas it may be objected , that by this procedure there behov'd to be progressus in infinitum , since the king might cite witnesses to cast the pannals witnesses ; and the pannal behov'd therefore to be allow'd to cast the kings witnesses , and to have citation for that effect . it is answered , that this might as well be urg'd against all reprobators ; nor does this hold here , for the judge should not allow such citations , save one to each party . because messengers in executing criminal letters , gave sometimes only copies of the libel it self , and yet returned executions to his majesties advocat ; that they had likwise given lists of assizers and witnesses ▪ therefore the justices declar'd in february . by an act of their sederunt , that if the pannal should produce a copy under the messengers hand of the libel , except the list of the assizers and witnesses names were upon the same paper with it , they would not sustain the execution , though bearing that lists of witnesses and assizers were given . this act is explain'd in the act par. sess. . and act sess. par. ch. . comprisings were at first invented to pay debt with a suitable proportion of land , and the sheriff was to adjust the sums due with the lands comprised ; but thereafter great estates being comprised for small debts , the parliament thought fit by this act to ordain , that for the future , not a messenger who was judge in comprisings ; but the lords of session should by a process before them , adjudge as much of the debitors lands to the creditor as would satisfie his principal sum and annualrent , with a fifth part more , because the creditor was forc'd to take land for money , whereas by the common law , aliud pro alio invito creditore solvi nequit . and albeit this act expresses only that this fifth part shall be beside the composition to the superiour , and expenses of infeftment ; yet certainly the creditor must likewise have all the expenses bestow'd upon the process ; for as this is reasonable in it self , so that expenses tends to the procuring of the infeftment . observ. . this act came in to the parliament simply in these terms , and the equity of it was prest from the custom of other nations , and particularly the common law , where the praetor did adjudge the debitors land proportionally to the debt ; but it being strongly urg'd by the lawyers , burgesses and other members who were moneyed men , that it was most unreasonable to force the creditor to take land , except the debitor should produce to him a good progress and security ; for both , to be forced to take land , and yet to want a sufficient right thereto , was altogether unreasonable : therefore the parliament ordain'd , that if the debitor did not compear and produce a sufficient progress , and renunce the possession , the debitor might adjudge the whole estate as formerly he comprised it ; and this has almost evacuated the whole act ; for the most of debitors are unwilling to produce a progres● , and renunce possession ; and therefore most lands are now adjudg'd as they were formerly apprised ; and in december . . it was found that an adjudication led for a fifth part more in absence of the debitor , was null ; since the fifth part more was only to be given , where the creditor compeared , produced a progress , and renunced ; albeit it seems that this alternative being introduced in favours of the creditor , it ought to be optional to him to choose either . observ. . that the legal in these adjudications is only five years , whereas it was seven in comprisings , for the danger being less ▪ because of the said commensuration , it was just that the time for redemption should be shorter ; and though it be not exprest that the foresaid five year shall not run against minors , and that it may seem it should not run against them , in respect of the short commensuration , and that it seems unreasonable , that a creditor being forc'd to take so little land , and should yet be forced to be unsecure during a whole minority , yet the said legal in adjudications will not run against minors , for adjudications having come in place of apprisings , are to be regulated by the same rules , except where it is otherwise provided by express law ; and therefore adjudications cannot be led upon bonds , bearing requisition , except requisition be first used , this being formerly necessary in comprising● , february . . gordon contra hunter : albeit it was there alleadg'd , that an adjudication was a more solemn action , ( requiring previous citation of parties ) than a comprising , and so there needed no requisition in adjudications , as in apprisings . observ. . that where land is decern'd proportionally to the sum , with a fifth part more , the creditor is to possess the land in satisfaction of his annualrent , during the not redemption , without being lyable to restitution , or compt and reckoning ; and therefore when the act does thereafter say , that he shall be pay'd of his principal sum and annualrent , that must be understood in the terms foresaid , viz. that the rent of the land shall be allowed for his annualrent , without restriction . observ. . if the creditor acquire once possession , he cannot thereafter use personal execution ; which i think should be understood only where the debitor compears , both because this clause is adjected to that part of the act which presupposeth compearance ; and before the clause punishing his absence ; and because it were unjust that a debitor should have advantage , when he will not consent . it may be also doubted , whether though the debitor compear , he may be free of personal execution , when the land adjudged is not able to pay the sum , according to the terms of the act ; for the reason of the law ceaseth , viz. that a man should not use execution , when he has attain'd payment : and thus albeit of old in comprisings , the compriser could not use personal execution , where he was in possession , except he renunced the same , july . . yet where he had not attained the possession , albeit the comprising was expir'd , he might have us'd personal execution by horning and caption , though not by arrestment and poinding , december . . observ. . that since this act declares , that neither the superiour nor adjudger shall be prejudged by this act ; it clearly follows , that the superiour may in this case , as in comprisings , redeem the adjudger by payment of the sum , it being unjust that a stranger vassal , should be forced upon him , when he is content to pay what is due . quaritur , whether albeit by this act , no comprisings can be led of lands , not already comprised ; if yet adjudications may not be led , even where lands are formerly comprised ; for this is not expresly discharg'd : and this seems to have been introduc'd , in favours of the creditors , who may make their own election , and i think they may . whereas it is declar'd , that the superiour and adjudger , shall be in the same case after citation in the process of adjudication , as if apprising were led , and a charge given . it may be doubted , how a simple summons can be equivalent to an apprising and charge ; for if that were sustained , he who had rais'd the first summons would be preferr'd to him , who having rais'd a posterior summons , had got the first decreet ; because the first summons would be equivalent to an apprising ; and consequently to a decreet of adjudication : but the lords have very justly found that the meaning of this clause is , that the first step in an adjudication shall be preferable to the second step in a comprising , and so forth : but not that the first step in an adjudication shall be equivalent to a compleat comprising : and yet it still remains , that a summons in an adjudication is equal to a denunciation in an apprising ; for tho a denunciation be the more solemn act , yet a summons publickly call'd in the house , does likewise make the diligence very notour . king charles . parliament . sess. . the king having designed to improve salt made in scotland , whereby poor people were maintained , and the money kept in the countrey , did buy the salt made in scotland , and ordain it to be sold out at reasonable rates , which was called the pre-emption of salt ; but the servants and officers imployed in venting the salt , having taken exorbitant prices , as was alleadg'd , and remote places , such as galloway and the highlands being ill furnisht , since it was difficult to keep store-houses every where , and many fearing , that this might be a preparative for the pre-emption of coal , corn , &c. his majesty was therefore pleased , for removing all such jealousies and prejudices , to condescend by this act , to discharge the said pre-emption , and all pre-emption of salt in time coming , but to give some advantage to our own salt above forraign salt , our own salt is declared free of all excise , and imported salt is to pay fourty shilling upon every boll . this act is explain'd in the observations upon the act sess. par. ch. . nota , that before this act the king had right to twenty shilling of custom for every tunn of imported beer , by the act par. ja. . many noblemen and gentlemen having been ingaged for debts contracted by our late rebellious parliaments and committees , and not being able to shun these debts , because they had given their privat security for the same ; the parliament . and posterior parliaments suspended execution upon them , but could not in justice take away the debt ; therefore for payment of this debt , an imposition was granted upon tobacco to be imployed for payment thereof , as being the most unnecessary commodity that was imported ; and yet this being complained of as a monopoly , or at least a great imposition upon a commodity , which though at first useless , was now by custom necessary ; his majesty did therefore discharge the said imposition , and allow the importing of tobacco in all time coming , free of all custom and imposition , except the ordinary custom . king charles . parliament . after many draughts of an act to secure the protestant religion , wherein his royal highness allow'd all liberty and encouragement , many of them were found great snares to the subjects ; and thereupon it was remembred , that in anno . king charles who was a very zealous protestant , and dyed a martyr for our church , resolv'd to make new laws for its defence ; but it was found that the laws made by king james sixth , were so full that nothing could be added ; and that was very probable , for that king being a most learned and zealous protestant , and the dangers arising to the protestant religion , being then so recent and urgent , it cannot be thought that any thing would have been omitted ; and therefore as that parliament satisfied themselves with a general ratification of all former acts , so did this parliament ; but to shew their earnestness , this act appoints the old laws against popery , and for securing the protestant religion , to be put to execution , according to the tenor and proport of these acts ; which clause is here added to this act , and is not in the act par. ch. . this act is explained in the observation on the act par. ja. . but more fully in my jus regium , cap. the right of succession defended : and it is remarkable , that it was past without a contrary vote , or the least objection ; only most thought it so just , that it was unnecessary , and really it had been so , if some in england had not controverted it . this act discharges ●ree-quarter and localities ; but because some pretended , that by this act they were free from all necessity of carying corn , or strae , or grass ; whereas , if this were true , the souldiers horses had been made unfit for service , by such carriages , and the troopers and dragoons might have been easily murther'd , whilest they went out singly to bring it in , therefore by act of council , this is fully regulated . there having been a full debate before his majesty , how far masters were answerable for their tennents , the parliament to prevent the like for the future , made this act , being fully convinc'd , that masters in scotland could command their tennents and servants ; suitable whereto , there are many old statutes , commanding masters to present them , and finding that without this , the peace could not be secured ; and upon the event it is found , that this has secur'd the peace for tennents and servants , knowing that their masters would find out their crimes , which sheriffs and others could not know ; and that they could not get service , or land any where ; if they were disorderly , they have conformed , and this hath restor'd masters to the just influence which our predecessors had over their tennents and servants , and which they lost by their fanaticism , by which they came to depend only on their ministers ; and minding more conventicles than their work : and in which extravagancy , they were so far advanc'd , that they would not see themselves till they were secur'd , that they should be allow'd to go to these : nor is the master ty'd by this act to any hard thing , since by presenting them to justice , or by putting them out of his land , or out of his service , he is free from all danger , and this is in his power ; as also to secure him yet further , it is declar'd , that he may break their tacks ; and that if any master take them who are put away , he shall be lyable unto three years duty . it having been also debated before the king , that there could be no deputs nam'd , for putting the laws against ecclesiastick disorders to execution , within the bounds of heretable judges ; therefore his majesties power is declar'd as to this point , by the clause of this act ; but this is now unnecessary , because by the act of this parliament , his majesties cumulative power is declar'd as to all points . it is very observable that the longer the world lasts , probation by witnesses-lessens alwise in esteem , because men grow alwise more wicked . in our saviours time , out of the mouth of two or three witnesses , every word was to be established : thereafter by our law , and by the laws of other nations , nothing above an hundred pounds could be proven by witnesses . and albeit of old the affixing of a seal was probative without a subscription or witnesses : but as by former acts , the subscriptions of parties is declar'd requisit : so though formerly the designing the witnesses , was sufficient , although they did not subscrive : yet by this act no writ is declar'd probative , except the witnesses subscrive ; and without their subscriving , the writ is declared null : but the act of parliament does not condescend , whether this nullity shall be receivable , by way of exception , or if it must require a reduction : but i conceive it must be null by way of exception , since the law hath declar'd such papers null , and the want of witnesses appears by production of the paper it self . the second thing established by this act is , that no witnesse shall sign as a witness to any parties subscription , except he know the party , and saw him subscrive , or saw , or heard him give warrand to the nottar , or touch the pen ; the occasion of which part of the act was , among other remarkable cases , that a gentlewoman pretending that she could not write before so many company , desir'd to sign the paper in her own chamber , whereupon she got the paper with her , and at her return brought it back subscriv'd , and she thereafter rais'd a reduction of the same paper , as not truly sign'd by her ; and though this should hardly have been sustainable at her own instance , because she was heard to own it by ▪ the subscriving witnesses , and the whole company : yet this exception of dole could not have secluded her heirs or executors from reducing it as said is . if witnesses without seeing a party subscrive , or giving warrand to subscrive , shal subscrive as witnesses , they are declared to be punishable as accessory to forgery ; which quality some think was added to seclude the punishment of death , it being , as may be pretended , too severe to punish by death , that which is the effect of meer negligence , and unto which very many fall through negligence ; yet our law knows no difference betwixt accessories and principals further than ex gratia ; accessories may sometimes find a mitigation of the punishment . i conceive also , that a party signing as witness , without seeing the paper subscriv'd , should be lyable to a third party who got assignation to that paper in damnage and interest , if it be reduced ex eo capite , since he was a loser by his negligence : but quid juris ? . if the party himself , to whom the paper was granted , were pursuing such an action for damnage and interest , since he should have considered his own security , and the witnesses might have trusted to his exactness . . quid juris ? if the witness heard command given to one of the nottars , since the act says , that unless they heard him give warrand to a notar , or notars , and touch the notars pen ; and yet even in that case , the paper may be null , because there was not a command given to both the notars ; and a third party may thereby lose his right ▪ . it may be doubted if upon a notars asking , if the party will warrand him to subscrive , the party do give a nod , whether that nod will be equivalent to a warrand , and free the witness , who thereupon subscrived as witness ? and it seems it should ; for the act says , except he saw or heard him give command : and a man cannot see a warrand otherways than by a nod ; and nutus was sufficient by the civil law to infer a mandat . the third point in the act is , that albeit in all forraign nations , the subscription of a notar proves in all obligations ; ( for there the notar keeps the paper sign'd by the party , and gives only a duplicat sign'd by him ) and albeit in our law , a notars subscription did prove in all instruments , such as seasins , intimations , &c. if the witnesses were insert , and design'd , though they did not at all subscrive ; yet by this act the witnesses must likewise subscrive , which is another argument to prove , how much the faith to be given to men is now lessen'd : but it is fit to observe , that other instruments taken by notars , continue in the former condition , and need no subscriving witnesses ; though for cautiousness , all witnesses in any instrument do now subscrive . nota , that the civil law call'd all obligations instruments ; but we call only acts of notars instruments . the fourth point in this act is , that all executions of messengers upon inhibitions , interdictions , hornings , or arrestments , shall be null , if they be not subscriv'd by witnesses ; and these were exprest , because they are executions of great importance ; and yet it seems that executions of comprisings and adjudications are of as great importance as any of these ; and yet it is not requir'd by this act , that executions of comprisings and adjudications should have subscriving witnesses ; and a reduction being raised of the execution of a comprising , because there being but two witnesses exprest in the execution ; one whereof did expresly deny , that ever he was witness in such an execution , and so the same became null , as wanting two witnesses : to this it was answered , that the deposition of a witness , denying that he was present upon the land the time of the execution , was not sufficient to destroy an heretable right of so great importance , as this comprising was ; for this deposition after so long a time , could amount to no more than a non memini ; and the reason whereupon this statute is founded , appears by the narrative to be , because the witnesses may by their forgetfulness easily disown their being witnesses ; and many men are apt to forget such circumstances , and to deny that ever they have been in such a place or house , until the same be brought back to their memory , by other very remarkable circumstances , which could not be done here , because the messenger and the other witnesses were both dead . . the deposition of one witness denying his being present , should not infer a nullity of the comprissing , since the loss of the whole executions would not infer the same , after so long a time as has been frequently decided . . if this were allow'd , it should be in the power of every single witness in an execution of a comprising , or adjudication , which are now the foundations of the most of our rights , to destroy and overturn the same for money or prejudice . . no singular successor buying a comprising , could be secur'd ; and if these executions had been thought of such importance , this statute had required subscriving witnesses . for a comprising is of far more consequence than an arrestment ; the one relating to an heretabl● , the other to an moveable , and very temporary right . . no man could with a sufficient causa scientiae , depone that he was not upon the ground of the lands of such a barony , except he knew every bit of the march of the barony , for that execution might have been used upon the very remotest corner of it . the last branch of this act is , that no execution whatsoever shall be sufficient to interrupt the prescription of heretable rights , unless the same have subscriving witnesses ; and by this , we see what care our law has taken to preserve prescriptions : and for the same reason it is appointed by the act par. ch. . that all citations that shall be made use of , for interruptions shall be renew'd every seven year ; and because of this clause in the act , it is advisable , that all executions in adjudications , comprisings , molestations , and generally in all actions , relating to real rights , have subscriving witnesses , though these be not exprest , because they may be made use of as interruptions in other cases . vid. observ . on the said act. this act concerning the test , is so exactly and universally known , and all objections against it have been so fully clear'd , that it is unnecessary to write any observation upon it : by the act of the par. ch. . it is declar'd that the nomination of the senators of the colledge of justice did ever belong to the king. and his majesty and his predecessors have ever been in use of appointing the times in which they should sit , and judge for him ; and therefore his majesties royal brother , finding , that many members of parliament inclin'd to want the summer session , he allow'd the overture to be brought into the articles . it was likewise propos'd , that there might be one moneth allow'd for the summer , and four only for the winter ; for which it was urg'd , that this would save all the inconveniencies that could be adduc'd against the summer session ; since therein causes that could not well admit of delay , such as suspensions , removings , actions upon bills of exchange , &c. might be discuss'd ; but this was rejected by vote of both articles and parliament , as tending to as much trouble and expense as the summer session it self , without any considerable advantage . for the leiges behov'd to attend from the remotest parts of the nation , and yet the whole time would be spent in useless preparations for business the first fourthnight ; and in a dangerous hurry the last fourthnight ; by this act then there is only one session to be in the whole year , which is to last from the first of november , to the last of march inclusive . the arguments adduc'd for this model were first , that two meetings of the session did encourage our countrey-men too much to litigiousness , who were naturally too much addicted thereto ; whereas one session might well enough end all our affairs : and it was indeed observable , that to recommend this overture , all possible dispatch had been made in the former session . . that these two sessions occasioned great expense , since people behov'd to come twice a year from the remotest parts of the nation , most unnecessarly ; for the summer session was spent in preparation , or hurry , as said is . . the summer being the only time wherein scots-men could have any pleasure , or could make any improvement by building , imparking , &c. the summer session did , without making us any recompense , destroy both our own pleasure , and the adorning of our countrey . the arguments for continuing the summer session as formerly , were . the session not sitting for seven moneths , his majesties authority during all that time , wants the support and assistance which otherwise it uses to have from the frequent attendance of the nobility , the kings officers , and others do meet frequently during the session , because of the conveniency they have in attending their private business . whereas in this long vacation of seven moneths , they can hardly be brought together , and so want that correspondence , intelligence and mutual assistance which they have in time of the session ; and our rebellions being ordinarly in the summer time , because of the conveniency which rebels have of lying in the open fields , and of getting provision for their horses , it would be much easier to suppress the same , when his majesties authority is fully represented , and his nobility and servants fully conveen'd ; a great instance whereof appear'd in the late rebellion of bothwel-bridge . . the summer session was very well contriv'd for the administration of justice , because in the moneths of june and july , such as have affairs in dependence before the session , had then no labouring at home , those two moneths falling very conveniently in betwixt seed-time and harvest , and we having formerly had the moneth of march adjected to the winter session , that moneth was taken from it , because it was a part of our seed-time , and consequently to have it now a part of our session , must be very inconvenient . . in those two moneths , his majesties subjects in the isles , and remote countreys , can only come to get justice administrated to them in the summer , there being no passage from these places to the session in the winter time ; or at least if they do come , they must stay the whole winter ; and in some years the storms are such , that there is no travelling , even from nearer countreys , nor is the winter fit for old men bishops , clergy-men , and such as are infirm to travel in . . the season in these two moneths , being very moderat with us , and the dayes long , much more bussiness is dispatched , than in the winter time : and there is far more conveniency of informing , than in the cold and rigid winter nights , which puts men to great expense , and occasions many diseases . . though his majesties subjects now procure decreets , or get bonds ; yet the same being suspended , they cannot be discuss'd for nine or ten moneths ; during which time also widows and orphans starve ; masters cannot remove tennents , because they advocat the cause ; and debitors become insolvent ; creditors likewise being forc'd to use adjudi●●●ions within year and day of one another , are altogether by the said long vacation excluded . . not only business before the session by this means , but even before inferiour courts are stopt ; for such as are conscious to the injustice of their own cause , stop procedure there likewise by advocations , which cannot be discuss'd for nine or ten moneths . . not only in these particulars ; but in general , the course of justice is stopt here : far contrary , not only to our conveniency , but to the custom of all nations , who allow in place of one , four or five sessions . there being no vacation in the world longer than two moneths , except in scotland , who now allow seven ; during which time , honest men are defrauded , bankrupt , and violent possessors are indulg'd ; probation by witnesses , and otherwise perish : and to be short , there is no face of justice during that time . . as the vacation is too long for the conveniency of the people , so is the winter session too long for the conveniency of the judges , advocats and other members of the colledge of justice , who must either destroy themselves by toiling too much , or the peoples business by their languid and negligent mannadgement thereof , it being undenyable that before the four moneths used to expire formerly , all persons concerned did languish , weary , and wish for a vacation . . the shortness of the time now allow'd , forces the judges to give shorter audience and to frequent the side-bars more than is fit . . the want of the summer session destroys trade and commerce ; because . merchants cannot get in their money , with which they should trade , wanting the execution of law for so long a time . . there is now no whitsunday term , so that the course of money is stopt ; and it is undenyable , that there are no payments now at whitsunday ; whereas we having had two terms formerly , whitsunday and martinmas , there were very wisely two sessions appointed , one in the summer for those who did not pay at whitsunday ; and another in the winter , for those who did not pay at martinmass . . there being no concourse and meetings of the people for seven moneths , there can be little commerce : for all traffique arises , and bargains are made upon such occasions . . it is undenyable , that twice more merchants have broke in those two years that we wanted a summer session , than in any six formerly ; from which decay of trade also arises a great loss to his majesty in his customs and revenue . . this want of the summer session is very prejudicial to the private estates and interests of almost all sorts of people : for , . there is alwise greatest consumption of corn , cattle , and all products of the nation , in more frequent and numerous concourse of people ; and the greater the consumption be , the prices rises so much the higher . . the victual of the northern shires not being transportable till april , because of the storms , it was only vented during the summer session ; and now the price of the victual there is much faln , and his majesties 〈◊〉 in those shires much prejudg'd . . the heritors of store-rooms in the south and west are very much prejudg'd , since a great part of their cattle , especially of the younger , was only vented in the summer session . . the heretors in the shires about edinburgh are prejudg'd in every thing that is pay'd to them . . the half of the town of edinburgh it self is almost laid waste ; landlords having almost lost half their rent , and the best trades-men running away to other nations , because they are idle for seven moneths here . by which also his majesty is a great loser in his revenue , that town paying him more alone , than a sixth part of what is pay'd by all the burghs-royal in the kingdom ; and trade by this extraordinary poverty decaying in edinburgh , which is the fountain of commerce , and the staple port of the nation , it must proportionally decay in all the other towns , since their trade and commerce depends upon it . . his majesties ordinary and additional excise in edinburgh , has very much decreased , and the brewers are almost all broken within these two years , as the tacks-men and customers too well know : the ministers stipends likewise being pay'd out of the annuities on house-meals , they must likewise decrease as the house-meals do . nor is the town able to keep up the company , nor to furnish his majesty such assistance , as formerly it gave in the rebellions at pentland and bothwel . as to the contrary arguments , it was answered , that as to the first , business did increase daily in all nations , with the improvement of land and of trade , and the multiplying of diligences , so that processes could not be sooner ended than formerly , without deciding them more carefully . to the second , no man now needed to come till his cause was call'd , because all causes were decided in their course by a roll , and so it was no matter whether he came summer or winter . to the third it was answer'd , there was more planting and improvement in the moneth of march , which is now lost than in both the moneths of june and july . it may be doubted if the king can recal the summer session without an express act of parliament ; and it may be urg'd that he may , since the session is his own court , wherein he does justice to his people by his judges ; and therefore as any of his majesties vassals may hold their courts when they please , much more may his majesty hold his. likeas his majesty has oft-times by his council , order'd the session to sit when and where he pleas'd : and whereas it is pretended , that if this were true , acts of parliament in ●his case were unnecessary ; and that such alterations have never been made without the parliament . to this it is answered , that at first the session was a committee of parliament ; and so the diets of session behov'd to be appointed by parliament : and now likewise it is fit , that the inclinations of the subjects be gratifi'd by such acts , taking along their consent in a case of so general a concern ; but it does not necessarly follow , that all things that have been establ●shed by an act of parliament at some times , can at no other time be order'd by his majesty alone ; for we see that there are several acts of parliament , regulating trade and coynage ; and yet it cannot be deny'd , but that trade and coynage are inter regalia . albeit by the fourteenth act par. ch. . the excise is to be taken up by the commissioners of the excise , or collectors appointed by them , and for whom the commissioners are answerab●● and may be quartered upon for their deficiency : by this act , the grant of the excise , which is to commense from the kings death , gives his royal successors only a right to what the drink exciseable it self can yield , and so the shires will not be oblig'd to burden their land with cess , for deficiency of the excise , as now they do . this act is formerly explain'd in the observations on the act par. ja. . by our former law , it was generally believ'd that all widows had right to a third of their husbands estates , call'd with us a terce , except the wife had been expresly secluded by her contract of marriage , and that she had right to her joynture , and to a third of the superplus of any land , wherein her husband died infeft : but in a case betwixt prestongrange and the lady craigleith , debated in the session immediatly before this parliament ; it was alleadg'd , that the said lady , being competently provided by her contract of marriage to a great joynture , she could not likewise have right to a terce , because primo , provisio hominis tollit provisionem legis ; and therefore where a wife is provided by express agreement , and the provision acquiesced in by the wife and her friends , it is in the construction of law reputed to be in full satisfaction of all she can crave , if the same amount to a third of all the lands , which the defunct had at his decease . . this is declar'd to be our law , by the . cap. lib. . reg. maj. n. , & . and by balfour in his title of the wises dowry and terce : and by craig lib. . cap. . . by the laws of other nations it is clear , that where a wife is secured by a conventional provision , she can have no right to any legal provision ; this the french expresly determine , when they say , that a wife having dotarium praesixum , cannot claim dotarium ex lege & consuetudinarium . . this terce is the same in the analogy of law , that a legi●tim , or an aliment is to children ; but so it is that neither of these are due , when the children are provided ; and therefore the most that can be due in either case is supplementum legittimae ; the law having only designed the rationabilis tertia : and there is no more due to our queens by the act par. ja. . albeit these reasons were thought very pungent , and tending much to the support of old families , and to secure men against the importunity of their wives ; yet because some positive decisions had run in favours of the wives , though abundantly provided ; therefore the case was referr'd by the session to the parliament , and they by this act ordain'd that in time coming , if the wife be provided , tho her provision were never so small , she shall be excluded from a terce , unless her right to a terce be secur'd to her , by and attour her particular provision : but because this act was not thought a declaratory statute , but a regulation ; therefore the case depending was remitted back to the session . this is fully explain'd in the observ. upon the act par. ja. . his majesty having , by vertue of his prerogative royal , declar'd by the act sess. par. ch. . the sole ordering , and disposing of trade with forraigners ; he did by act of council anno . regulate the matter of trade and manufactories ; which proclamations are here ratifi'd , for a security to such as shall undertake manufactories ; and therefore it may be doubted , if his majesty can dispense with any thing relating to manufactory , since in this , third parties have followed the faith of his majesties acts and proclamations ; so that his majesty seems to be bound to them ex quasi contractu . it is declared by the last clause of this act , that no persons contraveening this act , shall be lyable to the penalties , unless they be found guilty within three moneths after the delation : upon which clause it was found , that the offenders were free , though they had confess'd their contravention by their oath within the three moneths ; because there was not a formal sentence against them ; albeit it was alleadg'd that in confitentem nullae sunt partes judicis ; and the king had done sufficient diligence ; and the reason of the act did only militat in favours of those , who where not oblig'd to depone after so long a time ; and the king could not be prejudg'd , where his officers had done sufficient diligence , for this in effect was a prescription , which runs only against the negligent . likeas in this case , the want of a decreet could not be oppon'd , since it was occasioned by a petition , given by the defenders craving a delay , with which the king gratifi'd them : but yet the council thought the words of the act so positive , that they would not go over them ; especially since the clause did resolve in an indemnity to people who might have , and did ordinarly contraveen by mistake , or through necessity , and all such indemnifying clauses should be favourably interpreted . by the act par. ja. . the lords of session can only be declined to vote , or judge in causes belonging to their fathers , brothers , or sons : but because the prohibition of that act , was too narrow , and that the reason thereof did equally militat against all judges ; therefore by this act the prohibition of the former act is extended to degrees of affinity as well as consanguinity : as also to uncles and nephews , so that now no lord of session , or other judge whatsomever is capable to vote where either the pursuer or defender is father , brother , or son in law to him , which is most just , since these may have an equal influence upon him , and sometimes greater then those formerly discharged . it may be doubted whether this act should extend to cases caryed on in the names of confidents and trusties , for the behove of the persons comprehended in this act ; and it seems rational to extend it ; for a cause cannot so much be said to be his , in whose name it is pursued , as the persons to whose behove it is pursued : and if this were otherwise , the design of this excellent act might be altogether evacuated : but yet i remember that the earl of rothes in exchequer , gave by his vote the gift of non-entry of the estate of levin to sir william bruce , though it was alleaged that it being to his own behove , he could not jus sibi dicere . to which it was answered , that he did not vote for himself , but that he was necessitat to sit to make up a quorum , because there behoved still to be such a number of commissioners of the thesaury present in exchequer , as sine quibus non . as laws do ordinarly show the genius of the nation ; so do they likewise show the genius of the time wherein they are made ; and this law was occasion'd by a dreadful principle , whereby the fanaticks had declar'd , that it was lawful to kill all who serv'd the king ; and though none were punish'd in scotland for meer principles of religion : yet it is very lawful to punish those who maintain principles which tend necessarly and naturally to the raising of rebellion , or committing of crimes : whereof this and the act sess. par. ch. . are just instances . it may be doubted , whether judges may be declined , where their relation is equal to the pursuer and defender , or in cases of affinity , where the affinity has ceased by the dissolution of the mariage . item , it may be doubted , if a judge can be declined where he is related only to one who is a member of a society , which is pursuer or defender ; as for instance , if the process be against a colledge , and the judge be brother to one of the masters of the colledge . observ. from these words , the exchequer and other judicatures , that the exchequer is a judicature in our law , by this act it is declared , that the high court of admirality is a soveraign judicature in it self , and imports summar execution , by which last words is meant only , that execution of horning may pass upon their decreets immediatly , without seeking a decreet conform before the lords , as of old , conform to the act par. . ja. . which is here wrong cited , and call'd the par. but this summar execution is no mark of its being a soveraign court ; for sheriff and bailiff courts have the same priviledge . but that which makes this court a soveraign court is , that by this act it is declar'd , that they may not only review the decreets of inferiour admirals , but their own ; and the reason why they are allow'd to review their own is , because it is their custom to grant oft-times decreets summarly , for not finding caution ; and it were hard not to allow the persons concern'd to be heard upon an offer to find caution : as also , it is declar'd by this act , that no advocations shall be granted from them to the session ; but even this is not observ'd , tho it was the great design of this act , for this act restricting this priviledge to maritim and sea-affairs , the lords advocat causes from that court , as not maritim , it not being determin'd what cases are maritim , and so can be comprehended under that term. the lords are still allow'd to suspend the decreets of the admiral in praesentia , or by three lords in the vacance , which is hardly to be reconciled with its being a soveraign court : and yet in some cases , the lords suspend the decreets of the justice-court , and of the commission of the kirk , which are certainly soveraign courts . the admiral court has got also power by this act to apply the fines and amerciaments of their own courts , to their own use , which formerly belong'd to the king ; and they have also the sole power to grant passes and safe conducts to ships , which by a special priviledge was granted immediatly before this act , very irregularly to magistrats of burghs royal , and in the time of the late dutch war , it was granted to a particular person , named by his majesty , who was called surveyer-general ; and was bound by his instructions , not to grant a pass to any ship till he was aboard , and surveyed all that was in it ; only he had power to make a deput for a●erdeen , and beyond it . by this act because common things are neglected , and creditors are disappointed of all the rents where the same are controverted amongst them ; therefore they are allow'd to roup the lands of the common creditors , when become bankrupts , which is now done by summons , narrating this statute , in which all the real creditors are cited , and thereupon the lords grant a commission for trying the value of the estate , and then they determine what shall be the least price , and they name a lord before whom the roup is to be made , and letters are raised , charging creditors to appear on twenty one dayes , at such an hour at the new-session-house , to offer before such a lord , at which day he comes to the outter-house , and the clerk reads the acts , and commission to that lord , and the macer offers the lands at the price put on them by the lords three several times , and if none offer more , he who raised the summons gets them at that price . after all this , the creditors go on in their multiple poinding , and being rank'd according to their due preference , the price is distributed amongst them accordingly , tho it may be debated that this preference should be first determined , since till then creditors will not willingly offer . it seems more reasonable that roups should be in the shires where the lands to be sold do ly , for there will be more buyers found there than at edinburgh : i could likewise wish , that where any of the lords of the session are pursuers , they would name commissioners in the countrey to make the roup , for societies should shun sibi jus dicere , where the same can be supply'd by others . i think also that it were fit that roups were made three several dayes , and not all at one time , as is required by the doctors ; for this would give all persons concerned time and opportunity to appear , and consider what is fit to be offered , for men may be surprised , or be sick , or busie at one hour , or time . i conceive also , that the lord who makes the roup , should stay all the two hours allow'd , not only to the last moment , but from the first , as we see the judges do in roups abroad , and before our admirals , where the roups are therefore appointed to be made ad candelam , or clepsidram , and in orders of redemption , we see that the redeemer must wait from sun to sun ; and tho where the common good is to be rouped in towns , or the customs in exchequer , the same use to be done in half an hour or so , yet it is a different thing where creditors are to offer for getting payment of their own just debts : and for the same reason it seems , though a just creditor come somewhat late ; yet if he offer more , he ought to be preferred , nam de minimis non curat praetor , and the interest of lawful creditors ought to have greater favour . it is doubted , if a part of the bankrupts lands may be rouped , since the act ordains in general his estate to be roupt , and a part of the estate cannot be call'd the estate ; and it were hard to choose out the mannor-place , and some little part of the land , by the want whereof , the rest would become of little value : the act also by ordaining the price to be distributed among the creditors , insinuats that one creditor cannot choose a part to be roupt for payment of his particular debt . whether the lords may stop offers when they grow exorbitant in prejudice of offers of a just price , made by lawful creditors ; and whether a creditor should be preferr'd to a stranger , both offering the same price , tho the stranger made the first offer ; and if a creditor in passion may be allow'd to repent , and if he should get deductions in case of supervenient war , pestilence , or vis major , may be seen with many other intricat questions , fully discust by matheus de auctionibus , and postillus de sub-hastationibus , where all the matter of roups are excellently treated . when field conventicles , and other insolencies grew insupportable , the privy council required the sheriffs , baillies of regalities , and other magistrats to call together these within their jurisdictions , for repressing the same ; but they answered , that this was not possible ; whereupon the council being justly jealous , that the sheriffs did not their duty , gave commissions to the commanding officers , and other gentlemen to be conjunct-sheriffs , as to all ecclesiastick disorders , and found that these contributed much to quiet the countrey ; but this being complained of , as a streach of the prerogative , this act was made , declaring that his majesty may by himself , or others commissionated by him , take cognizance and decision of any causes he pleases , notwithstanding of any jurisdiction bestowed by him and his predecessors ; for understanding whereof , it is fit to know that all jurisdictions granted by absolute princes , are cumulative , and not privative ; for tho they empower others to distribute justice to their people , for their and their peoples greater conveniency ; yet they never thereby denude and debar themselves from judging or appointing others ; for the king may see , and the people may find judges very unfit , and that the government is ruined by them ; and yet a crime cannot be prov'd , whereby deprivation may be infer'd : whereas there is no inconveniency on the other hand . . this is clear by craig to be our law , lib. . diag . . illud tamen generaliter observandum , quod jurisdictio nunquam privative , sed cumulative delegari potest : non est enim quasi translatio juris ex una persona in aliam , sed tantum mandata jurisdictio , quae non obstante delegatione adhuc remanet in delegante . . this is no more than what was allow'd to the king by the act par. ja. . whereby it is declared , that it shall be lawful to the king at his empleasance ( or pleasure ) to take decision of any matter that comes before him , likeas it was wont to be as of before . . this keeps heretable officers in a just aw , and secures people ; for if they will be partial or remiss , they know that others may be nam'd to supply their defects . the occasion of this act was a solemn debate betwixt provost curry and charles oliphant in december . in which the said provost rais'd a reduction of a right made by the mr. of mordingtoun to the said charles of the lands of nether mordingtoun , and edringtoun , as made by a minor ; and though an oath was adjected by the minor , to ratifie at his majority : yet that was likewise null , since by the same facility that minors will contract to their laesion ▪ they will likewise swear to their laesion ; and therefore it is the publick interest , as well as the interest of the minor , that such oaths should not bind . to which it was answered , that though the world , whilest pagan , did rescind such oaths ; yet by the famous law sacramenta puberum , such oaths were to be observ'd : and though oaths given against a publick law , were not to be observ'd ; yet in such a case as this , where the publick was not concerned ; and where there was no statute against the interposing such an oath , the oath ought to be observed , as being a matter of far greater consequence than the contract : nor should judges favour perjury , or ensnare people who trusted oaths ; and even in countreys where statutes were made against the validity of such oaths , they ordained the minor to be first absolved by a church-man ; and since we had no such absolutions , we could admit of no restitution . to which it was reply'd , that the laws restoring minors were founded upon publick good and interest ; and therefore it were absurd to suffer the contravention of them to be secured by an oath , and that an oath adjected by a minor , should no more bind than an oath adjected by a wife , which has been by many decisions found not to be binding , and even in these countreys where the canon law takes place , this authentick constitution is not observ'd , viz. in france , flanders , &c. as is observed by guidilinus de jure novissimo , lib. . cap. . it was ly alleadged , that such oaths ought not to secure where the deed is in it self invalid and illegal , as here where the father authorizes the son to confirm a deed to the fathers own advantage , nam nemo potest esse author in rem suam . . it ought not to be respected even by the opinion of the civilians , where there is aenorm laesion ; which aenorm laesion is dolus praesumptus : and no oath can secure against fraud or dole . . though the minor might have prejudged himself by that oath , and thereby have secluded himself from craving restitution ; yet he could not prejudge the provost who was a third party , and was his creditor ; for the effect of the oath being only personal , could not reach him . the lords upon this debate sustained the contract , and repelled the reason of reduction , though rais'd by a singular successor . but they caused draw this act of parliament , discharging for the future , the exacting of such oaths : annulling likewise the contract , and declaring the elicitor of the oath to be infamous . nota , these words in the act , that it shall be competent to any person related to the minor , to obtain the writs to be declared null , were adjected , because some minors might scruple to pursue a reduction of a writ , that they themselves had granted upon oath ; and albeit this act declares only such contracts to be null , yet it will certainly extend to bands , dispositions , and other writs ; for as the reason is the same , so both the narrative and the last words of the act , has the word writs , which comprehends all these ; and i conceive the remedy of this act will extend likewise to promises , though these be not comprehended under the word writs ; for if it were otherwise , the act might be eluded by taking of promises upon oath from minors : as also , albeit the narrative relates only to writs of importance , by which are only mean'd in our law , such wherein the sum exceeds an hundred pounds scots : yet since the statutory part is general , and that an hundred pounds may ruine poor people , nor should men of substance las●le an oath by interposing it , to mean matters ; therefore i think that this remedy should be extended to all cases whatsoever . by this act for facilitating the course of trade , bills of exchange are ordain'd to be registrated within six moneths after they are due , and tho the bill bear no consent to the registration as bands do ; yet they are registrated by vertue of this act , which is narrated in the beginning of the paper that is registrated ; but this is of no great use ; and therefore merchants choose rather to pursue summarly before the dean of gilds court , who is with us , le consul des merchans , and even these pursuits are disappointed by advocations ; nor have they so much as the priviledge of being discust summarly , without attending the course of the roll , as was crav'd by the draught of the act that was first under consideration . it was also crav'd , that compensation should not be receiv'd against bills of exchange , as is customary abroad ; and a bill is in effect , in the construction of law , a bagg of money trusted by the drawer , and to be redelivered in another place ; and compensation is not even by the common law received against depositations . the reason why this act was only extended to bills drawn from abroad , or in favours of persons abroad ; and not to bills drawn from one place within the kingdom to another , was , because if that had been allow'd , all debts had still been constituted by bills , and not by bands , and so had been priviledged by too summar execution . before parliaments can proceed to publick affairs , all the controverted elections must first be cleared and determined , which being the occasion of great delayes in the dispatch of business gave the rise to this act , whereby it is ordain'd , that none shall have vote in the elections of commissioners for shires or stewartries , except those who are publickly infeft in property or superiority , life-rent or proper wodset , and in possession of a shilling land of old extent , holden of the king or prince , or in lands of pounds valuation , whether kirk-lands , or other blench , few or ward-lands , and that appearand heirs being in possession by vertue of their predecessors rights , and husbands for the free-holds of their wives , or as life-renters by the courtesie of scotland , of the extent and valuation foresaid , have right to vote . the shire of berwick having made cross elections of commissioners to the late parliament , the committee for controverted elections decided these points for clearing this act , which report was approven in parliament . . that a charter confirmed by the king of a shilling land , does not give a party right to vote , except his seasin thereupon be produced , and that the confirmation be of the seasin , since the confirmation of a charter , imports no more but the confirmation of a personal obligment . . vassals of kirk-lands of the extent and valuation foresaid , have no vote unless they hold their lands of the king as their immediat superiour ; for since it is optional to them , either to hold of the king , or lord of erection , by the act , parl. ch. . it is presumed they still hold of the lord of erection , unless they instruct that they hold of his majesty . . where vassals produce rights to a part of a barony , that will give them no right to vote , except they can instruct that their lands are retour'd to such a proportion as put them in the terms of the act of parliament . . life-rents not constitute by infeftments , but by personal obligments , give not the life-renters right to vote . . persons interdicted seem to be debarr'd from voting , since they who were not fit for managing their own affairs , ought not to be trusted to vote for commissioners to parliaments ; but this i think should only hold in interdictions , causa cognita , very judicious men consenting to voluntar interdictions . . if the king be only superiour supplendo vices of the immediat superior , by his not entering to the superiority : this will not give the vassal a vote , since the immediat superior retains all the casualities , and consequently remains still superiour , albeit pro hac vice the king supplies the defect of the immediat superiours lying out , by infefting the vassal . . appearand heirs , albeit in the terms of this act have no right to vote , if they have renounced , or if their predecessors were denuded , albeit they were in possession , the famine being only by a tollerance from the party in whose favours the predecessor was denuded . . appearand heirs by the mothers side , gives not a title to vote , except they be actually entered heirs , since it is presumed there are heirs male , except the contrair be proven by a service . . vassals who have expired apprisings , or adjudications , have liberty to vote , albeit by an act of the lords of session , the lands are declared to be redeemable for the sums truly due , since by this act apprisings , adjudications , and proper wodsetts , are not to be questioned upon pretence of any order of redemption , payment , or satisfaction , unless a decreet of declarator , voluntar redemption , resignation , or renunciation be produced . . it was found in the election of the commissioners of east - lothian , that no votes are sustained , but these who voted and signed before the meeting was dissolved ; and the votes of those who came immediatly after , were not sustain'd , tho the preses return'd with some of the number . but in the elections for the mers , it was found that a person was capable to vote , albeit he was detained prisoner by a mis-information from one of the competitors ; he having given an account of the way and manner of his imprisonment to the meeting , and declared his vote to them , and after his enlargement did immediatly take the test , and sign the commission . finis . several additions and supplements to the observations on the acts of parliament . by this act the wardens are discharged to judge , which is here called very odly to intromet with , any thing that pertains to the dittay of the justice-air , saving the points that are needful for conservation of the trews ( or truce ) that is to say , the jurisdiction of the wardens by this act is prorogated to the cognition of all crimes which were necessary to be judged by them , for preservation of the peace betwixt the kingdoms ; and so the first part of the act specifying treason , was unnecessary , for it was comprehended under the general : but now the commissioners of the borders , who are come in place of the wardens , have power directly , and so not only incidenter to judge thefts , and many other points of dittay . to add after these words , the king may make any man a lord of parliament ; yet by the constant course of posterior acts of parliament concerning elections and representatives of shires in parliament , and by the constant custome acknowledg'd both by king and parliament , none can represent shires in parliament , but such as are actually chosen by the shires whom they represent . after these words , that a registrat extract will not stop a certification , when a horning and its executions are called for , but the principal must be produced . it is fit to add , that though this hold against the user of the horning , yet the kings donator is not oblig'd to produce the principal horning , for else by collusion betwixt the debitor and the creditor , the kings donator might be easily prejudg'd . whereas it is said , that decimae inclusae are to be burdened with no part of the ministers stipend ; for clearing whereof it may be added , that this was so decided before the commission in january . . heretors of tulliallan contra colvill ; but afterwards in march . the same case being heard in praesentia before the lords , by a reference from the high commission ; it was found that conform to this clause in the act of annexation , reserving the tenth penny to the ecclesiastick person , that therefore the heretor having right to his lands , cum decimis inclusis , should be lyable to the minister for the tenth part of his feu-duty , with relief to him against the titular pro tanto . after these words , the earl marshal contra brae , add , this decreet was in foro : and stairs asserts , that competent and omitted before baron-courts , is not considered . the answer to this doubt is , that the act of the convention anno . doth not make either stipendiary ministers , or ministers having modified stipends lyable to impositions , but only ordains beneficed persons to be taxt : and the convention . having ordained the impositions then laid on , to be levied according to the valuation led in anno . and not according to the retoured duty ( which was the old way ) did ordain , that benefices should be valued , and pay , in so far as these benefices exceeded the modified stipend , and so they are burdened in both these acts as beneficed persons , and not as stipendiary ministers , of whom this act only speaks . in the second observation upon the said act , it is said , that the lords will allow the user of a writ to condescend who was the writer , albeit his name be not insert , nor condescended on in the writ . but now by the th act , parl. . ch. . all writs not condescending upon the writers in the body , are absolutely null ▪ and not suppliable by a condescendence , ex post facto . this observation should be thus worded , the act here related to , is the . act , par. . q. mary ; and the acts dispensed with both in this and the said . act , is the . act , par. . ja. . we have this custome of morning-gift from the germans , which is called in their language , morgengab , and is learnedly treated by milerus , in his gamologia personarum illustrium , cap. . where he defines morgennatica to be donum matutinale quod olim apud germanos & francos una cum do●e proprium patrimonium erat uxoris , vid. pag. . whereas it is said there , that a band wanting witnesses is null , if the same exceed an hundred pounds , and is valid , if restricted to pounds : it is fit to add , that this seems to be somewhat dubious , in respect of the act , par. . k. ja. . and . act , par. . ch. . which declare all writts , without exception , null , that are not subscribed before witnesses . it being asserted in the observations upon this act , that the reservation of the act extends as well to the patronage of mensal kirks , as those that are of the bishops representation ; this caution should be subjoyned , that notwithstanding of the decision there mentioned , march . . it may be contended that mensal kirks are not contained in the said exception , and that because that exception mentions only patronage of kirks pertaining to bishopricks , whereas a mensal kirk is not patronate , being a part of the benefice , and the disponing a mensal kirk is a formal dilapidation of the benefice , and so contrary to other acts of parliament . notwithstanding of the decision i have there cited , it see●s that this act of parliament is designed to make all retours , even at the instance of the nearest of kin irreduceable after years , and that even where competition is betwixt heirs of the same kind ; as if a second brother had served himself heir to his father during the life of the elder brother , or his descendents in lineà recta ; and it seems this has been the opinion of the lords in the case younger contra johnstoun , . novemb. . likeas the act of parliament makes no distinction , but on the contrary , having extended the prescription of retours from . year● to . and that only in favours of the righteous heir , and nearest of kin , it declares generally , that after the said years , no party shall be heard ; but yet it seems very hard , that if a second brother himself , who knew he had an elder brother ; or yet more , if he were keeping daily correspondence with him whilst he w●re abroad , should serve himself heir to their father , that thereafter this service might not be reduced , notwithstanding of this prescription of years ; but it would likewise seem that there might be a speciality in this case , because the dole , or it may be the knowledge of the second brother , without any dole , in some cases might hinder prescription , which requires in law bona fides , as one of its essential requisits ; and yet if a third party bought or comprised that estate , the prescription might be valid , because the impediment being personal , could not prejudge him ▪ and it is fit to observe , that what i said in general in my observations upon that act concerning singular successors , was only mean● of singular successors acquiring rights before that act , for they having bought bona fide before that act , a supervenient law could not prejudge them . for clearing the . observation upon the said act , it is fit to take notice , that albeit it be there insinuated , that lords of erection pay only a blench duty for the lands feued out to them the time of the erection ; yet it appears both by the surrender and decreet arbitral following ther●on , that they still pay a feu-duty for the lands feued out to them since the erection . nota , after a solemn debate before the exchequer , upon the . of january , . it was decided in a case betwixt bellhaven and the cash-keeper , that the king has right to the feu-duties which anciently were due to abbots , or church-men , before the annexation , or to k. ja. . before the erection ; and that these feu-duties need not be redeemed as the feu-duties of the superiorities , which were holden of the lords and titulars of erection , and whereof they had not acquired the property before the surrender ; and that notwithstanding that for ● . years together , there was a blench-duty payed for the saids lands and aeques made ●n exchequer conform . the diligence mentioned in the said act of parliament , must be a compleat , not an inchoat diligence , for else it would run not for three years , as it is designed , but for fourty . albeit by the . act , par. . ch. . it was declared , that all rights and deeds made prior to that act , which might prejudge his majesty , as to the superiorities and feu-farms of kirk-lands should be null , yet to elude that act , there were commissions procured from the king , to serve the kings vassals in kirk-lands heirs , and to receive resignations , &c. with right to apply the compositions and casualities to their own behove ; as also , they procured long tacks , both of the feu-duties and casualities of the superiorities , for payment of inconsiderable tack-duties , to furnish a pretext that the king was still kept in possession , that they might not seem to contraveen the act ; as also , others than the proper vassals of kirk-lands procur'd from the king rights of the feu-duties after the king had redeem'd the same from the titulars of erection , or procur'd a right from his majesty to redeem them , and so did in effect interpose themselves betwixt the king and his vassals of kirk-lands ; therefore by this act all these indirect courses are discharg'd ; and the earl of dumfermling having procur'd a long tack of the casualities of the vassals of the abbacie of dumfermling , containing a commission to enter the vassals ut supra , the exchequer would not allow the same , albeit he had procured a ratification of that right in parliament , and a letter from king charles the d. declaring that it fell not under his revocation . notes, typically marginal, from the original text notes for div a -e act. . act. . act . act . act . act . act . act · act. . act. . act. . act. . act . act . act . act . act . act. . act. . act. . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act and . act . act . act . acts , . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act and . act . act . act . act. . act . act . act . act . act . act . act . act . act . act . act . act . act . notes for div a -e act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act , . act . act . act . act . act . act . act . act . act . act . acts , , , & act. . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . notes for div a -e act . act . act . act . act . act . act . act . act . act . act . act . acts & act . act . act . act . act . act · act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act · act . act . act . act . act . act . act . act . act . act & act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . notes for div a -e act . act . act . act . act . act . act ▪ act . act . act . act . acts & act . act . act . act . act . act . act . act . act . acts , , . act . act . act . act . act . act . act . act . act . act . act . act ▪ act . act . act . act . act . acts , . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , . act . act . act . act . act . act . act . act . act . act . notes for div a -e act . acts , . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act act . act . act . act . act . act . act . act . act . act . act . act . act . act . act · act . act . act . act . act . act ● ▪ act ●● . act . act . act . act . act . act . act . act . act . act . act . notes for div a -e act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . notes for div a -e act . acts , , , act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , , . acts , , and . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act · acts , act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , . act . act . act . act ▪ act . act . act . act . act . act . act . act . act . act . act . act . act . act ▪ act . act . act . act . act . act . act . act . act ▪ act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act , act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , & . act . act . act . act . act . act . act . act . acts , & . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts , & . act . act . act . act . act . act . act . act . act . act . acts , , & . act , act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . notes for div a -e act . act . act . act . act . act . act . act . act . act . act . act . act : act . act . act . act . act . act . act & . act . act . act . act . act . act . act . act . notes for div a -e act . act . act . act . act . act . act . act . act . act . act . act . acts & act : act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . acts & act ▪ act . act . act . act . act . act . act . act ▪ act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act ▪ act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . act . notes for div a -e observation on act . par. . ja. . pag. . act ▪ par. . k. ja. act . par. . ja. . p. . act . par. . k. ja. p. ● . act par. ja. . p. . act par. ja. . p. . act par. ja . p. . act . par. . q. m. p. . acts , & . par. k. ja. . p. act par. k. ja. . p. . act par. k. ja. . p. act . par. k. ja. p. . act par. . ch. . p. . act par. . ch. . p. . act . par. . ch. . p. . a collection of such of the orders heretofore used in chauncery, with such alterations & additions thereunto, as the right honorable the lords commissioners for the great seal of england, by and with the advice and assistance of the honorable the master of the rolls, have thought fit at present (in order to a further reformation now under their lordships consideration) to ordain and publish, for reforming of several abuses in the said court, preventing multiplicity of suits, motions, and unnecessary charge to the suitors, and for their more expeditious and certain course for relief. england and wales. court of chancery. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason e _ ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing c thomason e _ estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; :e [ ]) a collection of such of the orders heretofore used in chauncery, with such alterations & additions thereunto, as the right honorable the lords commissioners for the great seal of england, by and with the advice and assistance of the honorable the master of the rolls, have thought fit at present (in order to a further reformation now under their lordships consideration) to ordain and publish, for reforming of several abuses in the said court, preventing multiplicity of suits, motions, and unnecessary charge to the suitors, and for their more expeditious and certain course for relief. england and wales. court of chancery. lenthall, william, - . keble, richard, fl. . whitlocke, bulstrode, - or . , [ ] p. printed by john macock for francis tyton, and are to be sold at his shop at the three daggers neer the inner-temple, fleetstreet, london : . with an initial imprimatur leaf. marginal notes. signed on p. [ ]: b. whitelock c.s.[,] rich. keble c.s.[,] w. lenthall master of the roles. annotation on thomason copy: "nouemb: ". reproduction of the original in the british library. eng england and wales. -- court of chancery -- early works to . equity pleading and procedure -- england -- early works to . law reform -- great britain -- early works to . a r (thomason e _ ). civilwar no a collection of such of the orders heretofore used in chauncery,: with such alterations & additions thereunto, as the right honorable the l england and wales. court of chancery. b the rate of defects per , words puts this text in the b category of texts with fewer than defects per , words. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion a collection of such of the orders heretofore used in chavncery , with such alterations & additions thereunto , as the right honorable the lords commissioners for the great seal of england , by and with the advice and assistance of the honorable the master of the rolls , have thought fit at present ( in order to a further reformation now under their lordships consideration ) to ordain and publish , for reforming of several abuses in the said court , preventing multiplicity of suits , motions , and unnecessary charge to the suitors , and for their more expeditious and certain course for relief . london , printed by john macock for francis tyton , and are to be sold at his shop at the three daggers neer the inner-temple , fleet street . . imprimatur , hen : scobell , cleric . parliament . pleadings . that no councellor do put his hand to any bill , answer , or other pleading , unless it be drawn , or at least perused by himself in the paper-draught , before it be engrossed , ( which they shall do well , for their own discharge , to sign also after perusal . ) and councell are to take care that the same be not stuft with repetitions of deeds , writings , or records in haec verba ; but the effect and substance of so much of them only , as is pertinent and material to be set down , and that in brief terms , without long and needless traverses of points not traversable , tautologies , multiplication of words , or other impertinencies , occasioning needless prolixity , to the end the ancient brevity , and succinctness in bills , and other pleadings , may be restored and observed . much less may councel incert therein any matter meerly criminous or scandalous under the penalty of good costs to be laid on such councel , and payd to the party grieved before such councel be heard in court . pleas & demurrers . forasmuch as the defendant being served with process to answer , may by advice of councel , upon sight of the bill only , be enabled to demur there unto , if there be cause ; or may by like advice be enabled to put in any just plea , which he hath in disability of the person of the plaintiff , or to the jurisdiction of the court : it is therefore ordered , that such demurrer , or such plea in disability , or to the jurisdiction of the court under the hand of councel learned , shall be received and filed , although the defendant do not deliver the same in person , or by commission ; and therefore if the defendant shall pray a commission , and thereby return a demurrer only , or only such plea which shall be afterwards over-ruled , the defendant shall pay five marks costs ; and although it be allowed , the defendant shall have no costs in respect of the plaintiffs needless trouble , occasioned by such commission . no demurrer shall be said to be received , or to be of effect in court , until the same be filed to the bill in the custody of the six clerk , being the plaintiffs attorney . no more shall any bill , answer , or other pleading , be said to be of record , or to be of any effect in court , until the same be filed with such of the six clerks , with whom it ought properly to remain . every demurrer shall express the several causes of demurrer , and shall be determined in open court . and such pleas also as are grounded upon the substance and body of the matter , or extend to the jurisdiction of the court , shall be determined in open court : and for that purpose the defendant is to enter the same with the register , within eight days after the filing thereof ; or in default of such entry made , the same shall be disallowed of course , as put in for delay , & the plaintiff may then take out proces to enforce the defendant to make a better answer , and pay forty shillings costs , and the same shall not afterwards be admitted to be set down or debated , unless ( upon special reason shewed to the court before such proces to make better answer be taken out ) it shall be otherwise ordered by the court . and if any cause of demurrer shall arise , and be insistest on at the debate of the demurrer ( more then is particularly alledged ) yet the defendant shall pay the ordinary costs of over ruling a demurrer , ( which is hereby ordered to be five marks ) if those causes which are particularly alledged be disallowed , although the bill , in respect of that particular , so newly alledged , shall be dismissed by the court . a plea of outlary , if it be in any suit for that duty , touching which , relief is sought by the bill , is insufficient according to the rule of law , and shall be disallowed of course , as put in for delay , and the plaintiff may ( notwithstanding such plea ) take our proces to enforce the defendant to make a better answer , and pay five marks costs ; otherwise a plea of outlary is always a good plea , so long as the outlary remaineth in force , and therefore the defendant shall not be put to set it down with the register : and after the said outlary reversed , the defendant upon a new subpena served on him , and payment unto him of twenty shillings costs , shall answer the same bill , as if such outlary had not been : but if the plaintiff conceive such plea of outlary through mispleading , or otherwise , to be insufficient , he may , upon notice given to the clerk , on the other side set it down with the register to be debated with the rest of the pleas and demurrers in course ; but if the plaintiffe shall not in such case enter it with the register , within eight days after the same shall be filed , the defendant may take out proces against the plaintiff for his ordinary costs of five marks , as if the same had been heard . the dependancy of a former suit for the same matter , is also a good plea , and therefore the defendant shall not be put to set it down with the register . but if the plaintiffe be not satisfied therewith , the same shall be referred to one of the mesters of the court to certifie the truth thereof : and if it shall be determined against the plaintiff , he shall pay to the defendant , five pounds costs . but such reference shall be procured by the plaintiff , and a report thereupon within one moneth after the filing of such plea , otherwise the bill to stand dismissed of course , with the ordinary costs of seven nobles . if after a suit commenced at the common-law , or any other inferiour court , a bill shall be exhibited in this court to be relieved for the same matter , the dependancy of the former suit shall be admitted as a good plea , and the defendant not be put to motions for an election , or dismission : and that plea shall be proceeded in , as in case of a plea of a former suit depending in this court for the same matter . if the demurrer be grounded only upon some error , slip , or mistake in the bill , the plaintiff without motion shall be permitted of course to amend the same , paying to the defendant , or his attorney to his use , twenty shillings costs . but if the plaintiff shall not within eight days after such demurrer put in , amend , or alter it , and pay the costs , then the demurrer shall stand to be determined in court , and if the same be ruled against the plaintiff , he shall pay the ordinary costs for over-ruling a demurrer . if the plaintiffe or his attorney in court shall , within eight days after a demurrer filed , give notice to the defendant , or his attorney in court , under either of their hands , that the plaintiff doth admit the demurrer to be good , and shall pay the defendants attorney , or his clerk in court , fourty shillings costs ; then the defendant shall not need to attend his demurrer : but the bill shall stand dismist of course without motion , unlesse the parties , or their attorneys on both sides shall agree to an amendment of the same , but such dismission is to be no bar to a new bill to be exhibited by the plaintiff . answers . an answer to a matter charged as the defendants own fact , must regularly be without saying to his remembrance , or as he believeth , if it be laid to be done within seven years before , unlesse the court upon exception taken , shall finde special cause to dispence with so positive an answer . and if the defendant deny the fact , he must traverse or deny it ( as the cause requires ) directly , and not by way of negative pregnant . as , if he be charged with the receipt of a summe of money ; he must deny , or traverse that he hath not received that summe , or any part thereof , or else set forth what part he hath received . and if a fact be laid to be done with divers circumstanees , the defendant must not deny or traverse it literally , as it is laid in the bill , but must answer the point of substance positively and certainly . vvhen the defendent hath answered , the plaintiff is to be well advised upon the answer ; and if he shall find that upon the answer alone without further proofe , there be sufficient ground for a finall order or decree , the plaintiff may procure his attorney to present the same in course to be set down , to be heard upon bill and answer , without further lengthning of the cause ; but in case the court shall not find grounds to make a decree or finall order thereupon , the bill shall be dismissed with costs , or the plaintiff admitted to reply if he desire it , first paying down . l. costs to the defendent or his clark , which if he shall not do in foure daies after such hearing , then the dismission to stand , and the conclusion of the order upon hearing , is to be penned by the register accordingly , that the said bill stand dismissed without any further order or direction , and then such dismission shall be a good plea in barre of any new bill for the same matter . if a hearing be prayed upon a bill and answer , the answer must be admitted to be true in all points , and no other evidence to be admitted , unlesse it be matter of record , to which the answer refers and is proveable by the record . the plaintiff is therefore to be well advised therein , that the court be not put to an unnecessary trouble , and himselfe to a certaine charge , in bringing his cause to hearing , which will not beare a decree . vvhereas the defendent hath put in an answer , if the plaintiff hath proofs for the matters denied , he is not to insist upon the insufficiency of the answer , if the same be good to a common intent , but proceed to replication and proofe , to avoid charge and expence of time in cavilling with answers . if exceptions be put in to an answer after the terme , the defendent shall not be compelled to stay in towne , to attend the plaintiffs exceptions , but shall have time to answer untill the fourth day of the next terme , unlesse the court shall find speciall cause to hasten it , and shall see order in open court . when a plaintiff excepteth to a defendents answer , he shall set downe his exceptions in writing , and the same terme the answer is filed , or within eight daies after that terme , deliver the same exceptions to the councell , whose hand is to the answer , or to the defendents attorney in court , and if the defendent shall within the times before limited respectively satisfie the plaintiff of the invalidity of those exceptions , or put in a perfect or better answer , and pay xx s. costs , then the plaintiff may reply thereunto . but if the defendent shall faile to do the same , or put in a second insufficient answer , then the plaintiff may get the said answer , or answers referred ; and if the same shall be ruled insufficient , the defendent shall pay forty shillings costs ; and in case the plaintiff shall procure a reference of the answer , and the same be ruled good , the plaintiff shall pay the defendent forty shillings costs . if the first answer be certified insufficient , as aforesaid , the defendent shall pay forty shillings costs , if the answer were put in person ; but if the same came in by commission , the defendent shall pay fifty shillings costs , and no new commission shall be awarded for taking any second answer , unlesse it be by order made in court , and affidavit made of the parties inabilitie to travell , or other good matter to satisfie the court touching that delay , and first paying the costs of such insufficient answer , or by the plaintiffs own assent for the expediting of his cause . if the second answer be reported insufficient unto any of the points formerly certified , ( which are only to be insisted upon without any new exceptions ) the defendent shall pay three pounds costs ; and upon the third answer foure pounds costs ; and upon a fourth answer certified insufficient , he shall pay five pounds costs , and be examined upon interrogatories to the points reported insufficient , and shall be committed till he hath perfectly answered those interrogatories , and payed the costs , in respect of the great vexation and delay which in such case will happen to the plaintiff . if upon perusall of the answer , the plaintiff shall find it will be necessary to make proof of one , or few particulars , then the plaintiff is to reply to those particulars only , and not draw into pleadings and proofs any more , then the points necessary to be proved : and in case upon the hearing it shall appeare that the plaintiff might have had as full relief on bill and answer , the plaintiff shall not only go without costs , but shall pay the defendent good costs , to be assessed by the court , albeit he be relieved upon the merit of his cause , in respect of the defendents needlesse vexation . if a bill be regularly and justly dismist of course , or by order for want of prosecution , no motion shall be admitted for the retainer thereof without a certificate from the defendents atturney in court , that the costs of the dismission are paid , to the end unnecessary charge to the parties by severall motions for one and the same matter may henceforth be avoided . examination of witnesses . in case the parties proceed to examine witnesses , the interrogatories are to be penned with care , that the same be pertinent , and onely to the points necessary to be examined unto : and the witnesses are to be sorted & examined on those interrogatories only that their testimony doth extend unto , without the needlesse interrogatories of matters unnecessary and immateriall , as well to avoid the charge of both parties , plaintiff and defendent , in superfluous examinations , as that apt interrogatories ( which are the life of the cause ) may be exhibited . the examiners ( in whom the court reposeth much confidence ) are themselves in person to be diligent in examination of witnesses , and not intrust the same to meane and inferior clarks ; and are to take care to hold the witnesse to the point interrogated , and not to run into extravagances and matters not pertinent to the question , thereby wasting paper for their own profit , of which the court will expect a strict accompt . the examiners are to take care that they imploy under them in their office , none but persons of known integrity and ability , who shall take an oath not to deliver or make knowne directly or indirectly to the adverse party , or any other save the deponent , who coms to be examined , any of the interrogatories delivered to be examined upon , any examination by him taken or remaining in the examiners office , or extract , copy , or breviate thereof , before publication be thereof passed , and copies thereof taken . and if any such deputy , clerk or person so imployed , shall be found faulty in the premises , he shall be expulsed the office , and the examiner who so imployed him , shall be also answerable to the court for such misdemeanour , and to the party grieved for his costs and damages sustained thereby : and such solicitor or other person , who shall be discovered to have had a hand therein , shall be liable to such censure for the offence , as the court shall find just to inflict upon him . no witnesse shall be examined in court by the examiner , without the privity of the adverse party , or of his attorney or his attorneys clerk , who deales for the adverse party , to whom the person to be examined shall be showed , and a note of his name and place of dwelling delivered in writing , by such as shall produce him , and the examiner is to take care , and be well satisfied that such notice be given , and then shall add to the title of the witnesses examination , the time of such notice given , and the name of the person to whom it is given , and by whom , that at the hearing of the cause , the suitor be not delayed , upon pretence of want of notice . for prevention of perjury and other mischiefs often appearing to the court , the examiner is to examine the deponent to the interrogatories directed seriatim , and not to permit him to read over , or heare read any other of interrogatories , untill that in hand be fully finished , much lesse is he to suffer the deponent to have the interrogatories , and pen his owne depositions , or to depart after he hath heard an interrogatory read over , untill he hath perfected his examination thereunto : and if any witnesse shall refuse so to conform himselfe , the examiner is thereof to give notice to the attorney , or clark of the other side , and to proceed no further in his examination , without the consent of the said attorney or clark , or order made in court to warrant his so doing . in examining of witnesses , the examiner shall not use any idle repetitions , or needlesse circumstances , nor set downe any answer to the questions , to which the examinant cannot depose other then thus , to such an interrogatory this examinant cannot depose . and in case such impertinencies be observed by the court , the examiner is to recompence the charge thereof to the party grieved , as the court shall award . the examiner shall not examine any witnesse , to invalid the credit of any other witnesse , but by speciall order of the court , which is sparingly to be granted : and upon exceptions first put into writing , and filed with the examiner without fee , and notice thereof given to the adverse party or his attorney , together with a true copy of the said exceptions , at the charge of the party so examining . from henceforth the fee taken by the examiner , upon the producing of a witnesse to be examined by him , shall be deducted to the party plaintiff or defendent , who paid the same , when the copies of such witnesses depositions are taken out by him , and such exhibitions whereupon any witnesse is examined , shall be alwaies ●ndorsed and certified by the examiner , at the same time that the witnesse is thereupon examined , and his examination perfected and subscribed . when witnesses are examined in court upon a schedule of interrogatories , there shall be no new interrogatories put in to examine the same witnesses ; nor shall any witnesses be examined in court after the day of publication , though they were sworne before ; so as a copy of the rule or order whereby publication passed , be delivered to the examiner , that he may take notice thereof . if the defendent being served with a subpoena to rejoyne and joyne in commission , shall not upon request by the plaintiffs clark , made to the defendents clark , deliver commissioners names , by the end of that terme , wherein the subpoena ad rejungend . is returnable ; the plaintiff may without motion or petition take the commission ex parte . the plaintiff ought regularly to have the carriage of the commission for examination of witnesses , as often as any is sued forth : but if through the default of him or his commissioners , the same be not executed , he shall pay unto the defendent such reasonable costs , as the defendent shall by oath make appeare , he was put unto by such failer , and shall renew the commission at his owne charge , but the other side shall have the carriage of such new commission . and the like shall be done to the plaintiff , where the defendent for just reason hath obtained the carriage of the commission ; and if through any errour of the clark in making out the said commission , or misnaming the commissioners or parties , or the like , the execution of a commission shall be put off , the party put to charge in attendance of such commission , shall receive his costs to be ascertained by his oath as aforesaid , from him that obtained such commission , and the clark that made out the same , or his superiour the attorney in court , ( who is answerable for him ) shall make restitution thereof to the client and suitor . if both sides joyne in execution of a commission , and the one side produceth and examineth all his witnesses , and the other side doth not , but prayeth a new commission , the same shal not be granted ( unless it be by consent of the parties , or their attornies in court , ) but upon oath of good cause , why he could not then examine all his witnesses . and in case the same be granted , the party praying the same shall bear the reasonable charge of the other side , both of renewing & executing the commission , to be ascertained by oath , and the other side shall be at liberty , to crosse examine the witnesses produced by him that reneweth the commission . but if he shall not onely crosse examine the witnesses of the adverse party , but examine new witnesses , he shall beare his part of the charge . if at the instance of a defendent , a commission to examine witnesses be renewed , either for a default by him or his commissioners , or because he did not examine all his witnesses by the first commission , he shall at his perill examine all his witnesses by such renewed commission , or in court by the returne of such commission without more or further delay , and no more commissions to issue , except for examination beyond the seas , by order in court , or by consent of the attorney . upon the returne of a commission , if the same be executed by both parties , one rule onely shall be given for publication , and if the said commission be not renewed , or another obtainby the plantiff or defendent within that time , then publication shall passe , and no commission shall be afterwards granted or renewed , without speciall order in court . upon the taking out of copies of depositions examined in ●ou●t , o● by commission either by the plaintiff or defendent , no fee shall be taken by the six clarks or the examiner for the copies , either of the plaintiffs or defendents respective interrogatories , save onely the clarks usuall fee for the writing thereof . depositions of witnesses in severall causes , which are meerly crosse causes , ( viz. ) between the same parties , and touching the same matter , may be used at the hearing of both causes ( coming to hearing together ) without any motion or order in that behalf . vvhere either party plaintiff or defendent obtaineth an order to use depositions of vvitnesses taken in another cause , the adverse party may likewise use the same without motion , unlesse he be upon speciall reason shewed to the court , by that party first desiring the same , inhibited by the same order so to do . no motion shall be made in court or by petition , for suppressing of depositions as irregularly taken , untill the six clerks not toward the cause have been first attended with the complaint of the party grieved , and shall certifie the true state of the fact to the court with their opinion : if the attornies or clerks on either side shall not for the ease of their clients agree before them , for which purpose a rule for attendance of the six clerks in such case shall be entred of course with the register , at the desire of the party complaining , which shall warrant their proceedings and certificate to the court . proces . every subpoena to answer shall be served personally , or left at the defendents dwelling house , or place of residence with one of that family , and no clerk of this court shall issue any attachment for not appearing , but on affidavit first made , positive and certaine , of the day and place of such service of the subpoena , and the time of the returne thereof , whereby it shall appeare that such service was made ( if in london , or within twentie miles , foure dayes at the least excluding the day of such service ; and if above twentie miles , then to have been ) eight daies before such attachment entred ; and that such attachment shall not be discharged , but on payment of twenty shillings costs if the service be personall , and ten shillings if otherwise , and so the succeeding proces to be double . every subpoena to make a better answer , shall also contain a clause for payment of the costs ordinary in that behalfe , and the suitor not be put to take out severall writs , nor prosecute severall contempts , as in that case hath been used ; and if upon the service of such subpoena , the costs be not paid , the answer of such defendent shall not be received or filed , unlesse the said costs be also delivered and payed to the plaintiffs clark , together with the said answer , but proces of contempt shall issue in that case , as for want of an answer , at the returne of the said subpoena . a subpoena ducens tecum ( when the defendent confesseth in his answer , the having of any writings materiall to be examined upon , or confest to belong to the plaintiff ) may be taken out by the plaintiff of course without motion , for the defendent to bring them into court , or shew cause , &c. but if the defendent either confesse not the having them in his hands , or makes his title by them , or to them by his answer , he shall be excused from any contempt , although he neither bring them into court , nor shew cause , and if the plaintiff shall notwithstanding prosecute a contempt in that behalfe ( and the case upon the defendent his answer appear to be such ) he shall be thereof discharged , and have his costs . the subpoena ad audiendum judicium shall be served either on the person of the defendent , or left at his dwelling house , where his family then resides : or in case oath be made that he cannot be found to be served personally , and that he hath no certaine dwelling , or is beyond the seas , the court will order the leaving of a subpoena with his attorney in this court to be a sufficient service . all proces of contempt shall be made out into the county , where the party prosecuted is resident , unlesse he shall be then in or about london ; in which case it may be made into the county , where the party then is . and if any person shall be taken upon proces otherwise or irregularly issued , the party so taken first appearing unto , and satisfying the proces which did regularly issue against him , shall be discharged of his contempt , and have his full costs to be taxed of course by the six clerks not towards the cause for such undue or irregular prosecution , from the time that the error first grew without motion or other order . every suitor who prosecuteth a contempt shall do his best endeavour to procure each severall proces to be duly served and executed upon the party prosecuted , and his wilfull default therein appearing to the court , such person offending shall pay unto the party grieved good costs , and lose the benefit of the proces returned without such endeavour . that all attachments in proces shall be discharged upon the defendents payment , or tender to the plaintiffs clerk & refusall of the ordinary costs of the court , & filing his plea , answer or d●mu●rer ( as the case regularly requires ) without any motion in court in that behalfe . and if after such conformity and payment of the costs , ( or tender and refusall thereof ) any further prosecution shall be had of the said contempt , the party prosecuted shall be discharged with his costs . commissions to answer . after a contempt duly prosecuted to an attachment with proclamation returned , no commission shall b● made to answer , nor plea or demurrer admitted , but upon motion in court , and affidavit made of the parties inability to travail , or other good ●atter to satisfie the court touching that delay . the defendent who is served with a subpoena ad respondend . and obtaineth a commission to answer in the country , shall without more words have the same liberty there by to answer , plead , and demur , as he had by the originall proces , if he could have appeared in person . after a commission once obtained to answer , no second commission shall be granted without speciall order of court ; or the plaintiffs owne assent under his hand . and if the time for the defendents answering be inlarged upon affidavit , that he or they cannot answer without fight of writings in the country , or in respect of the length of the bill or the like , which shal not be without speciall order in court , no commission shall be afterwards granted without like speciall order of court , upon good reason shewed to induce the same , or the like assent of the plaintiff . in case where the defendent sits all process of contempt and cannot be found by the serjeant at armes , or makes a rescue , a sequestration shall be granted of the land in question . and if the defendent render not himself within a yeare , then an injunction for the possession , and the profits so sequestred to be delivered over to the plaintiff . injunctions . for that it is agreeable to equity , and the constant practise of this court , that a defendent obtaining a commission to take his answer in the country , should not by that delay or favour of the court , get an advantage against the plaintiff , by proceeding at law in the meane time , it is ordered , that from henceforth every commission to take an answer in the countrey shall containe in it a clause of injunction to stay the defendents suit at law ( if any be ) touching the matter complained of in the bill untill he hath answered the bill , and the court given other order , so as issue were not joyned at law , before the returne of the subpoena served upon the defendent , and in that case to stay judgement for the like time , so that the taking of such commission under seale , shall be a sufficient notice and service of the said injunction , without motion or other trouble to the plaintiff , whereupon for breach to ground an attachment , upon affidavit of a proceeding at law after the commission prayed . no injunction to stay suits at law shall be granted upon priority of suit onely , nor upon the bare surmise of the bill ; but upon the defendents delay or wilfull contempt in not answering , or upon matter confessed in the answer , or matter of record , or writing plainly appearing , or the duty demanded appearing to be very ancient . where a bill comes in after a verdict a law for a debt , an injunction is not to be granted , without depositing the principall money , except there shall , upon hearing both sides , appeare to the court in the defendents answer , or by deed under hand and seale , or other good matter for relief in equity . and an injunction granted in such case , or otherwise upon the merit of the cause or equity appearing to the court , is regularly to stand , untill the hearing of the cause , unlesse the plaintiff delay the cause , in which case he may best be quickned , by dissolving the injunction . for avoiding multiplicity of references heretofore used , and charged to the suitor , it is ordered that where a motion is made for an injunction to stay a suit at law upon allegation of matter of equity confest in the answer , the councell moving the same , shall have that suggestion fair written in his hand , and read or truely open the same to the court : and if the court hold that matter of sufficient weight , will thereupon grant an injunction as is desired , without reference , report or further motion , and then the register is in court to receive the said suggestion so fairly written , and insert the same verbatim in the order for granting the injunction . but if the said suggestion be untrue in the substance thereof , upon construction of the whole answer , and the defendent be prosecuted by the plaintiff for breach of the injunction granted thereupon , he shall be cleare from any contempt in that behalfe and have his costs , and such councell shall justly incurre the displeasure of the court . where an injunction to stay suits is obtained upon a misinformation made to the court , ( as of matter confessed in the defendents answer which in truth is not so confessed , or if confessed in one place , is avoided in another part of the answer , or upon other such like plaine abuse to the court , in that case the party prosecuted with contempt for breach of such injunction shall upon his examination ( the matter appearing as asoresaid ) be discharged of any contempt , although he hath proceeded at law after such injunction granted , and also have his costs taxed for his wrongfull vexation , by the same master to whom the contempt shall be referred without other motion in court , which also shall be done in like cases , where a contempt stands referred to a master of the court , he shall tax costs , and certifie the same in his report to the court , together with his opinion touching the contempt , as well for the prosecutor in case the contempt be confessed or proved , as for the party examined if he be cleared thereof . for avoiding the many motions heretofore frequently made , touching dissolving and continuing injunctions , it is ordered , that when an injunction is granted till answer and further order , if no order be made within fourteen daies , ( after the answer duly filed in court ) for continuance of the injunction , the same shall stand dissolved without further motion upon certificate only of the register . injunctions to quiet possession ( usually granted for preservation of the publike peace , and prevention of force ) shall not be granted before hearing , but upon oath that the plaintiff was in actuall possession at the time of the bill exhibited , ( and not of rents or other things which lie not in manuall occupation : ) and for such possession as the plaintiff himself had at the time of the bill exhibited and three yeares before , but not to be extended further to the possession of such from whom he claimes , or of him and his tenants , much lesse him and his assignes or the like . which injunction shall not be extended to give the plaintiff any other possession then he had at the time when the motion was made . and such injunction in case the plaintiff delay to bring his cause to hearing is also to be dissolved . no injunction to quiet such possession shall extend to hinder the defendents proceedings at law to evict the plaintiff , or from making any lease , or peaceable entry , or single distresse for that end . no possession shall be taken from any person by colour of any such injunction before the cause be heard . and if any be , the court will restore possession and award costs . injunctions against felling of timber , ploughing up of meadow or ancient pastures not ploughed in twenty yeares before , or for maintainance of inclosures that have continued for the better part of twenty yeares shall be granted as usually they have been , but no defendent who by answer claims an estate of inheritance , or other estate dispunishable of wast , shall be thereby restrained , unlesse it be particularly so ordered and mentioned in the said injunction . and upon motion made for such injunction , the case is to be truly opened as it stands in court , and the defendents glaime by his answer if he have answered . when the day is appointed for setting downe causes for the follovving terme , the fix clerks shall present the causes according to their priority in publication , to be set downe in their order , so as the old causes may be first heard and dispatched . and for that purpose with the names of each cause they shall present the time when publication passed , with a short note of the nature of every such cause presented . and accordingly the court will give order for setting them downe , so that puyne causes shall not thrust out those that were ready for hearing before them . provided that no cause be presented the same terme in which publication shall passe . where no councell appears for the defendent at the hearing , and proces appears to have been duely served , the answer of such defendent shall be read , and if the court upon such hearing shall find cause to decree for the plaintiff , yet a day shall regularly be given to the defendent to shew cause against the same , but before he be admitted thereunto , he shall pay downe to the plaintiff or his attorney in court such costs as the court upon that hearing shall assesse , and the order is to be penned by the register accordingly , ( viz. ) it is decreed so and so , &c. unlesse the defendent shall by such a day pay to the plaintiff or his attorney in court costs , and shew good cause to the contrary , and such defendent upon his shewing cause shall first produce a certificate from the plaintiffs attorney in court , that he hath paid the costs or affidavit of tender and refusall thereof . the reasons of the judgement of the court are in such case where the defendent makes default to be by the register shortly inserted in the order , that the defendent may know how to apply his cause without a new hearing , but if the court shall not receive satisfaction thereupon to alter or conforme the decretall order , but that a new hearing shall be requisite , the defendent ( if the court shall confirme their first order upon the second hearing , shall also pay the plaintiff his full costs expended in the suit . if the court upon the hearing of a cause shall give no reliefe to the plaintiff , the defendent shall have costs awarded him in respect of his causlesse vexation . and where a decree is made against a defendent the court will likewise give costs to the plaintiff as there shall be cause . where costs are awarded by the court and the party shall refuse to pay them and be afterwards prosecuted and found in contempt for not paying of them , he shall not be discharged of such his contempt , untill he shall pay the said costs double , over and besides the costs taxed , for the prosecution of the said contempt . where causes are removed by speciall certiorari upon a bill containing matter of equity ; the plaintiff is before he have the certiorari granted , to put in bond to be taken by the register , to prove his suggestions within fourteen daies after the receipt of his writ , which if he shall faile to do , upon certificate from the examiners that no witnesses are examined , or upon a report that the suggestions are not proved , the court wil dismisse the bill with costs , and award a procedendo . decrees . no decree bindeth any man that cometh in bona fide by conveyance before the bill exhibited , and is made no pertie either by bill or order . but where he claimes in trust for such person against whom the decree is made or comes in dependente lite without allowance or privity of the court it is otherwise . no decree shall recite the bill , answer , pleadings or depositions or any of them verbatim , but onely the short state of the matter and the decretall order , and the opinion and judgement of the court . no decree being once under the great seale shall be reversed or altered at the suit of the person against whom the decree is made , or any man claiming in privity , by , from or under him , but by bill of review onely . but in case of mistaking in a decree which is demonstrative , viz. an errour in auditing or numbring , mistaking the date or the like , by the leave of the court the same may be certified without a bill . that all decrees and dismissions pronounced upon hearing the cause in this court be drawne up , signed and enrolled before the first day after the next michaelmas or easter term after the same shall be so pronounced respectively , and not at any time after , without speciall leave of the court . that a short entry and docquet be made in a register book kept by the register of this court , or such clerk as he shall appoint for that purpose of all decrees that are drawne up and enrolled , whereby any lands or lease is decreed or charged with any sum of money , annuity , &c. & of the lands in particular , and the parish , or town and county where the same lie , to the end that any person that hath occasion may resort to that register book , to see whether any decree be made touching such lands , houses , &c. and in case no such entry be made within six moneths after such decree shall be signed by the lords commissioners for the great seal and enrolled , the same shall not prejudice any purchaser , who shall bona fide purchase any estate in such lands , houses , &c. after the time limited for such entry to be made . that the six clerks , and all other clerks of this court doe therefore take care for their client , that such entry be made of all decrees by them drawn up and inrolled by the time before limited , that the client do not suffer through their neglect : and that the register shall take onely the fee of twelve pence for such entry , twelve pence for a certificate , and four pence for a search where no certificate is made . in case of a decree for lands upon oath made , that the same hath been personally served , and is not obeyed , and an attachment is issued under seale for such contempt , the court doth usually grant an injunction for the possession , and upon oath made of the serving thereof upon the party , and that the same is not obeyed , a commission is to be awarded to some of the justices of the peace of that county , to put and keep the plaintiff and his assignes in possession , and in case of resistance , a writ of assistance is to be awarded to the sheriffe for that purpose . where the party is committed , or brought in by a serjeant at arms for breach of a decree , he is not to be inlarged untill he hath performed the decree in all things that are to be presently done , and given security by recognizance with sureties , as the court shall order , to performe the other parts of the decree ( if any be to be performed ) at future dayes and times appointed by the decree . where the party is committed for breach of a decree , or order of court , he ought to be restrained within the fleet , and not permitted to go abroad without speciall license of the court . where a decree is made for rent to be paid out of the land , or a sum of money to be levied out of the profits of lands , there a sequestration of the same lands being in the defendents hands , or of any rent reserved to the defendent out of the same lands may be granted . where causes are dismissed upon full hearing , and the dismission signed and inrolled , such causes are not againe to be retained , nor any new bill admitted , except it be a bill of review , or upon matter of like nature , as in case where a decree is sought to be avoided , and upon like security and allowance of the court . bills of review . to the end that after a decree made the party may be at peace , and multiplicity of suits be avoided , no bill of review shall be admitted , except it containe either error in law appearing in the body of the decree , without either averment , or further examination of matters in fact , or upon new matter discovered in time after the decree made , and whereof the party could not have had advantage before ; and upon such bill of review no witnesses shall be examined to any matters which were or might have been examined unto upon the former bill ; but upon oath made of such new matter discovered as aforesaid , a bill of review may be exhibited by leave of the court and not otherwise . no bill of review shall be admitted , nor any other bill to change matters decreed , except the decree be first obeyed and performed : but if any act be decreed to be done , which extinguisheth the parties right at common law , as making of assurance or release , acknowledging satisfaction , cancelling bonds or evidences , and the like , or where the error is apparent in the body of the decree , as aforesaid , the court upon motion may dispense with the actuall performance of that part of the decree till the bill of review be determined . no bill of review shall be allowed , except the party that prefers it ( giving notice to the defendent therein ) do first enter into a recognizance with sureties before some master of the court in ordinary , of a fit penalty in relation to the matter decreed for the satisfaction of the costs and damages if the bill of review be dismissed . contempts . vvhere a contempt is prosecuted against any man he shall not be put to move the court as formerly hath been used , either for interrogatories to be exhibited , or for reference of his examinations and discharge being examined . but where any person shall be brought in by proces or shall appeare gratis to be examined upon a contempt , he shall give notice of such his appearance to the attorney or clerk of the other side : and if within eight daies after such appearance and notice given interrogatories shall not be exhibited whereon to examine him ; or if being examined , no reference shall be procured of his examination , nor commission taken out by the other side , nor witnesses examined in court to prove the contempt within one moneth after such examination , then the party so examined shall be discharged of his contempt without further motion , and may attend any one of the masters of the court for the taxing of his costs , which the master is to tax without further order , and that taxation being entred in the register the party may proceed for the same of course , as in like cases of costs taxed . if after appearance and interrogatories exhibited as aforesaid , the party appearing shall depart before he be examined ( without leave of the court ) he is upon motion and certificate from the register , and of such his departing and not being examined , and of the interrogatories exhibited from the examiner , to stand committed without further day given unto him , and is not to be discharged from such his contempt untill he hath been examined and been cleared of his contempt . and if he shall upon his examinations or by proofs be found in contempt , he shall cleare such his contempt and pay the prosecutor his costs , before he be discharged of his imprisonment . and although he be cleared of his said contempt yet he shall have no costs , in respect of his disobedience in not being examined without the prosecutors trouble and charges in moving the court as aforesaid . in case of prosecution of a contempt for breach of an orderof the court or otherwise grounded upon an affidavit , the interrogatories shall not be extended to any other matter then what is comprehended in the said affidavit or order . and if any other shall be exhibited , the party examined may for that reason demurre unto them , or refuse to answer them . where the party prosecuted upon a contempt hath denied it , or the same doth not clearly appeare by his examinations , the prosecutor may take out a commission of course to prove the contempt , and in such case the party prosecuted may name one commissioner to be present at the execution of the commission , and may henceforth ( notwithstanding the former usage to the contrary ) crosse examine the witnesses produced against him , to prove the contempt , but is not to examine any witnesses on his part , unlesse he shall satisfie the court touching some matter of fact necessary to be proved for clearing the truth . in which case the court if there be cause will give leave to him to examine witnesses to such particular points set down , and the otherside may crosse examine such witnesses . but the interrogatories on both sides are to be included in the commission . where a contempt is prosecuted against one who by reason of age , sicknesse or other cause is not able to travaile , or in case the same be against many persons who are servants or workmen and live far off : the court will upon motion and affidavit thereof , grant a commission to examine them in the countrey ▪ which commission shall be sued out and executed at the charge of the person or persons desiring it , directed to such indifferent commissioners as the prosecutor of the contempt shall name ( as in other cases ) and one commissioner onely at the nomination of the party prosecuted as aforesaid . which commission shall be executed at such convenient time and place , as the six clerks not towards the cause upon hearing the clerks on both sides shall set downe . upon every examination or proof of a contempt referred to any of the masters of the court , to certifie whether the contempt be confessed or proved or not : the master in his certificate thereof made to the court shall likewise assesse and certifie the costs to either party , as there shall be cause without other order or motion made for that purpose . commitment . the court being tender of the liberty of mens persons , and to avoid their imprisonment upon malicious affidavits , which are often made by one mean and ignorant person , and which hath heretofore by the course of the court drawn on a commitment , doth order , that from henceforth where oath shall be made of misdemeanour in beating or abusing the party upon serving of the proces or orders of the court , the party offending is to stand committed upon motion , and no examination is in that case to be admitted . and where affidavit shall be made by two persons , of scandalous or contemptuous words against the court or the proces thereof , the party offending shall likewise stand committed upon motion without any further examination . and a single affidavit in such case shall be sufficient to ground an attachment , whereupon such person shall be brought in to be examined . and if the misdemeanour shall be confessed , or proved against him , he shall stand committed until he satisfie the court touching his said misdemeanour , & pay the prosecutor his costs : and if he shall not be thereof found guilty , save by the oath of the party who made such affidavit , he shall be discharged , but without any costs , in respect of the oath made against him , as aforesaid . that no order whatsoever , except decretal or final orders upon hearing be received to be entred after the space of eight days , to be reckoned from the day of the order pronounced exclusivè : and if the party on whose behalf the motion is made do not prosecute the drawing up of the order within . days , the register is to do the same according to his notes at the instance of the adverse party . masters . the masters are not upon the importunity of councel ( how eminent soever ) or their clyents , to return special certificates to the court , unless they are required by the court so to do , or that their own judgment in respect of difficulty leadeth them unto it . such kinde of certificates for the most part occasioning a needless trouble , rather then ease to the court , and certain expence to the suitor . their certificates and reports are to be drawn as succinctly as may be ( preserving the matter clearly for the judgement of the court ) and without recital of the several points of the orders of reference ( which do sufficiently appear by the orders themselves ) or the several debates of councel before them ; unless that in cases where they are doubtfull , they shortly represent to the court , the reasons which induce them so to be . the masters of the court are to take notice , that when the court requires to be satisfied from them touching any matter alledged to be confessed , or set forth in the defendants answer ; it is intended that without further order they should take consideration of the whole answer or answers of the defendant , and certifie not only whether the matter be so confessed or set forth , but also any other matter , avoiding that confession , or ballancing the same , that the court may receive a clear and true information . the masters in taking affidavits , and administring of oaths in cases duly presented unto them , are to be circumspect and wary that the same be reverendly and knowingly given and taken , and are therefore to administer the same themselves to the party , and where they discern him rash , or ignorant , to give him some conscionable admonition of his duty , and be sure he understand the matter contained in his affidavit , and read the same over , or hear it read in his presence , and subscribe his name or mark thereunto before the same be certified by the master , who is not to receive or certifie any affidavit , unless the same be fairly and legibly written without blotting , or interlineation of any word of substance . in all matters referred to the masters of the court , their certificate ( not being to ground a decree ) if it be positive is to stand , and proces may be taken out to enforce performance thereof without further motion , unless the adverse party upon notice given ( to his attorney or clerk in court ) that such report is filed against him , shall within eight days after such notice ( if it be given in term , or whiles the general seals for motions are held , or within four days in the next term , if it be given after ) obtain some order in court to controle or suspend the same . and in case of an insufficient answer certified by the masters , the plaintiff may immediately take out proces against the defendant for his costs , and to make a better answer as hath been formerly used . where after certificate or report made by the masters of the court , either party shall appeal from the same , to the judgement of the court , he shall first file his exceptions thereunto briefly , with the register and deposite with him , fourty shillings to be paid to the other party for his costs , if he prevail not in such appeal . and then the register shall enter such causes of appeal in a paper in order as they are brought unto him to be determined by the court in course upon days of motions , and notice thereof to be given by the party appealing , to the clerk of the other side . and also the registers paper to be set up in the office two days before . and if the court shall not alter the masters report , then the fourty shillings deposited to be paid to the party defending the same , with such increase as the court shall finde cause to impose , otherwise to be restored to the party appealing , and both without charge . petitions . no injunction for stay of suit at law shall be granted , revived , dissolved , or staid upon petition . nor any injunction of any other nature shall pass by order upon petition , without notice and a copy of the petition first given to the other side , and the petition filed with the register , and the order entered . no sequestration , dismission , retainers upon dismissions or final orders , are to be granted upon petition . no former order made in court is to be altered , or explained upon a petition ; no commitment of any person taken upon proces of contempt to be discharged by order made upon petition , unless in the vacation , and upon hearing the adverse party his attorney or clerk in court . no commissions for examinations of witnesses , shall be awarded or discharged , nor examinations suppressed upon petition , except it be upon point of the course of the court first referred to the six clerks not towards the cause and certificate thereupon . paupers . after an admittance in forma pauperis , no fee , profit , or reward shall be taken of such party admitted , by any councellor or attorney for the dispatch of the paupers business , during the time it shall depend in court , and he continued in forma pauperis ; nor any contract , nor agreement be made for any recompence , or reward afterwards . and if any person offending herein shall be discovered to the court , he shall undergo the displeasure of the court , and such further punishment as the court shall think fit to inflict upon him , and the party admitted , who shall give any such fee or reward , or make any such contract , or agreement , shall be from thenceforth dispaupered , and not be afterwards admitted again in that suit to prosecute in forma pauperis . if it shall be made appear to the court , that any person prosecuting in forma pauperis , hath sold or contracted for the benefit of the suit , or any part thereof whiles the same depends , such cause shall be from thenceforth totally dismissed the court , and never again retained . such councel , or attorney as shall be assigned by the court to assist the person admitted in forma pauperis , either to prosecute or defend , may not refuse so to do , unless they satisfie the lords commissioners , or master of the rolles who granted the admittance , with some good reason of their forbearance . that councellor who shall move any thing to the court , on the behalf of a person admitted in forma pauperis , ought to have the order of admittance with him , and first to move the same , before any other motion . and if the register shall finde that such person was not admitted in forma pauperis , he shall not draw up any order upon the second motion made by any such councel , but he shall lose the fruit of such second motion in respect of his abuse to the court . no proces of contempt shall be made forth and sent to the great seal at the suit of any person prosecuting as plaintiff in forma pauperis , untill it be signed by the six clerk who deals for him , and the six clerks are to take care , that the such proces be not taken out needlesly , or for vexation , but upon just and good cause , as they will answer it to the court , if the contrary shall appear . and lastly ; it is ordered , that all masters of the court of chancery , councellors , and all officers , ministers , clerks , and solicitors in the said court , do observe these orders , which are to continue until upon further consideration and experience , any alterations shall be thought fit to be made therein . b. whitelocke c. s. rich. keble c. s. w. lenthall master of the roles . an alphabetical table . a   fol. reg. answer to matter of fact . time to answer exceptions . time to deliver exceptions to an answer . ib. further insufficient answers , and costs for them . appeals from masters reports . b   fol. reg. svccinctness in bills . certiorari bill . bills of review . not to be admitted till obedience , except in particular cases , and upon security . c   fol. reg. causes to be set down according to priority of publication . commission to answer gives liberty to plead and demur also . commission to answer to contain an injunction . not to be granted after attach cum procl. in what case a second commission to answer . carriage of a commission to examine . commission ex parte when ib. new commissions , and how new commission through the defendants default . commitment for misdemeanors on service . for scandalous , and contemptuous words against the court . contempts .   fol. reg. proces of contempt into the proper county . endeavour to be used in serving it . to be discharged on payment of the costs , or on tender and refusall . appearance on contempts . departure without b●ing examined . in what case a commission shall be to examine contemners . commission to prove a contempt of course . contemners , when to be discharged . when restrained . costs for insufficient answer . for further insufficient answer . masters to tax costs on contempts of course . costs to be given on hearing contemner to pay the costs double . ib. d   fol. reg. decrees , who is bound by them , and who not . to be drawn briefly . ib. not to be altered but by bill of review , save in mistakes demonstrative . ib , when to be enrolled . ib. an entry to be made of the lands &c. clarks to take care it be done . prosecution of decrees for lands . ib. for money out of lands . default at hearing . demurrer to put in without personal attendance or charge of commission . demurrers to express the causes . demurrer upon a slip or mistake . no demurrer after attach cum proc . demurrer being admitted the bill to be dismissed of course . depositions in cross causes . depositions in another cause . ib. depositions to be suppressed , and how . ib. dismission for non-prosecution not to be retained till costs paid . dismissions on hearing . e   fol. reg. time to answer exceptions . time for exceptions to be delivered . ib. examiners duty . to have care of their clerks , and be answerable for them . ib. examiner to avoid impertinences . no examination after publication . h   fol. reg. hearing on bill and answer . what evidence admitted . default at hearings . reasons to be expressed in the order . costs to be given on hearing , i   fol. reg. interrogatories to be pertinent . no new interrogatories for the same witnesses ▪ no fees for the copies of the parties own interrogatories , save for writing . interrogatories not to exceed the affidavit . injunction contained in a commission to answer grounds for injunctions to stay suits . injunction on bills after verdict , injunctions on the matter without reference . injunctions on mis-information . injunctions to be dissolved without motion , and in what cases . injunctions to quiet possession . not to hinder suits , lease , entry , or distress . not to extend to take away possession ib. injunct . for timber , ploughing &c. o   fol. reg. oaths reverendly to be administred and taken . orders to be entered in eight days . p   fol. reg. paupers not to pay fees , nor to contract for the benefit of his suit. councel and attorney assigned to do their duty . motions for them to be first made . ib. proces of contempt for them to be first signed by the six clerk . no pleadings to be of effect till filed . pleadings to be succinct . pleas to be put in without personal attendance or commission . pleas on the matter , or to the jurisdiction . plea of outlawry . plea of a former suit depending . plea of a suit depending in another court . petitions . no injunction to be granted by petition . nor sequestration , dismission , retainers upon dismissions , or final orders . nor order altered or explained , nor commitment discharged . ib. no commissions for examination of witnesses to be awarded or discharged , nor examinations suppressed by petition . proofs to be only of matters necessary . one rule for publication on a joynt commission . r   fol. reg. plaintiff to reply , if answer good to common intent . reports of masters not to be special without order . nor prolix . ib. to be upon the whole answer . reports that are positive . s   fol. reg. service of a subpoena to answer . subpoena for better answer and costs in one . subpoena ducens tecum to be sued out of course . service of a subpoena ad audiend. . judicium . sequestration on non est invent . w   fol. reg. no witness to be exaamined without notice , &c. witnesses to be examined to interr . seriatim . examination to the credit of a witness , and how . fee for examining a witness to be deducted . ib. finis . notes, typically marginal, from the original text notes for div a e- . suecinctness in bills and pleadings . what pleas or demurers may be put in without personal attendance , or charge of commission . . no pleadings to be of effect till filed . . demurers and pleas on the 〈◊〉 matter , or to the jurisdiction . . plea of outlary . . plea of a former suit depending . plea of a suit depending in another court . . demurrer upon a flip or mistake . demurrer being admitted the bill to be dismissed of course . . answer to matter of fact . . hearing on bill & answer with caution . . at hearing on bill and answer , what evidence . . plaintiff to reply , if the answer good to a common intent . . time to answer exceptions . . time for exceptions to be delivered , and costs for insufficient answers . . further insufficient answers , and the costs for them . . proofs to be only of matters necessary . . bill dismissed for want of prosecution , not to be retained till the costs paid . . interrogatories to be pertinent . . examiners duty . . to have care of their clarks and be answerable for them . . notice of a witnesse to be examined . . witnesses to be examined to interrogatories seriatim . . examiner to avoid impertinencies . . examination to the credit of a witnesse , and how . . fee for examining a witnesse to be deducted . . no new interrogatories for the same witnesse , nor examination after publication . . commission exparte when . . carriage of commissions to examine . . new commission and how . . new commission through defendents default . . one rule on a joynt commission . . no fees for the copies of the parties own interrogatories , save for writing . . depositions in crosse causes . depositions in another cause . . depositions to be suppressed and how . . service of a subpoena ad respondend . . subpoena for better answer and costs in one . . subpoena duc . tec . to be sued out of course . . service of a subpoena ad audiend. . judicium . . proces of contempt into the proper county . . endeavour to be used in serving it . . to be discharged on payment of the costs , or upon tender and refusall . . after att. cum procl. no commission , nor plea , or demurrer . . commission to answer gives liberty to plead and d●murre also . . in what case a second com. to answer . . sequestration upon non invent . or rescue . . commission to answer to contain an injunction . . grounds for injunctions to stay suits . . injunction on bills after verdict . . injunctions on the matter without reference . . injunction on misinformation . . injunctions to be dissolved without motion and in what cases . . injunctions to quiet possession . . not to hinder suits , lease , entry or distresse . . not extend to take away a possession . . injunctions for timber , ploughing . &c. . causes to be set down according to priority of publication . . default at hearing . . reasons to be expressed in the order . . costs to be given on hearing . . contemner to pay the costs double . . certiorari bill . . who is bound and who not . . to be drawne briefly . . not to be altered but by bill of review . . save in mistakes demonstrative . . when to be enrolled . . an entry to be made of the lands &c. . clerks to take care it be done . . prosecution of a decree for lands . . contemner when to be discharged . . when restrained . . decree for money out of land . . dismission on hearings . . grounds of bill of review . . not admitted till obedience , except in particular cases . . and upon security . . appearance on contempts . . departure without being examined . . interrogatories not to exceed the affidavit . . commission to prove it of course . . in what cases a com. shall be to examine contemners . . master to tax costs of course . . on misdemeanour on service . . for scandalous and contemptuous words against the court . . orders to be entred in eight daies . . reports not to be special without order . . nor prolix . . to be upon the whole answer . . oaths revertndly to be administred . and taken . reports positive . . appeals from them . no injunction to be granted on petition . . nor sequestration , dismission , retainer , nor final order . . nor order altered or explained , nor commitment discharged . . no commissions to examine witnesses to be awarded , or discharged nor examinations suppressed by petition . . not to pay fees . . no● to contract for the benefit of the suit. . councel and attorney assigned to do their duty . . motions for them to be first made . . proces of contempt for them to be first signed by the six clerk . . an argument delivered by patrick darcy, esquire by the expresse order of the house of commons in the parliament of ireland, iunii, . darcy, patrick, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing d ). textual changes and metadata enrichments aim at making the text more 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) an argument delivered by patrick darcy, esquire by the expresse order of the house of commons in the parliament of ireland, iunii, . darcy, patrick, - . p. by thomas bourke, waterford [waterford] : . royal arms (not in steele) on t.p. reproduction of original in bodleian library. eng law -- ireland -- history and criticism. a r (wing d ). civilwar no an argvment delivered by patricke darcy esqvire, by the expresse order of the house of commons in the parliament of ireland, . iunii, . darcy, patrick c the rate of defects per , words puts this text in the c category of texts with between and defects per , words. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - taryn hakala sampled and proofread - taryn hakala text and markup reviewed and edited - pfs batch review (qc) and xml conversion an argvment delivered by patricke darcy esqvire , by the expresse order of the house of commons in the parliament of ireland , . iunii , . royal blazon or coat of arms printed at waterford by thomas bourke , printer to the confederate catholicks of ireland , . . iunii , . by the commons house of ireland in parliament assembled . forasmuch as m. patricke darcy , by a former order of this house , was appointed prolocutor , at the conference with the lords , touching the questions propounded to the iudges , and their pretended answers to the same ; it is hereby ordered , and the said m. darcy is required , to declare and set forth , at the said conference ; the manifold grievances , and other causes and grounds that moved this house , to present the said questions to the lords house , to be propounded as aforesaid , and to give particular reasons for every of the said questions . copia vera . extract . per phil. fern . cleric . parl. com. an argvment delivered by patricke darcy esqvire , by the expresse orders of the commons-house of the parliament of ireland ; at a conference with a comittee of the lords house , in the dyning roome of the castle of dublin , . die iunij . upon certaine questions propounded to the iudges of ireland in full parliament ; and upon the answers of the said iudges to the said questions . and in the conclusion , a declaration of the commons house upon the said questions . the qvestions . questions , vvherein the house of commons humbly desired , that the house of the lords would be pleased to require the iudges to deliuer their resolutions . in asmuch as the subjects of this kingdome , are free , loyall , and dutifull subjects to his most excellent majesty their naturall liege , lord & king ; and to be governed only by the common lawes of england , & statutes of force in this kingdome , in the same manner & forme , as his majesties subjects of the kingdome of england , are and ought to be governed , by the said common lawes , and statutes of force in that kingdome ; which of right the subjects of this kingdome doe challenge , and make their protestation to be their birth-right , and best inheritance ; yet , in asmuch as the unlawfull actions and proceedings of some of his majesties subjects , & ministers of iustice of late yeares , introduced and practised in this kingdome , did tend , to the infringing and violation of the lawes , liberties , and freedome , of the said subjects of this kingdome , contrary to his majesties royall and pious intentions . therfore the knights , citizens and burgesses in parliament assembled , not for any doubt , or ambiguity , which may be conceived , or thought of , for , or concerning the premisses , nor of the ensueing questions , but for manifestation and declaration of a cleere truth , and of the said lawes and statutes already planted , and for many ages past , setled in this kingdome . the said knights , citizens and burgesses , doe therefore pray the house of the lords may bee pleased to command the iudges of this kingdom ; forthwith , to declare in writing their resolutions of and unto the ensuing questions , and subscribe to the same . . whether the subjects of this kingdome be a free people , and to be governed , only , by the common lawes of england , and statutes of force in this kingdome ? . whether the iudges of this land doe take the oath of iudges , and if so , whether under pretext of any act of state , proclamation , writ , letter , or direction , under the great , or privie seale , or privie signet , or letter , or other commandment from the lord lieutenant , lord deputy , iustice , iustices , or other chiefe governor , or governors of this kingdome ; they , may hinder , stay , or delay , the suite of any subject , or his iudgment , or execution thereupon ; if so , in what case , and whether , if they doe hinder , stay or delay , such suite , iudgement or execution thereupon , what punishment doe they incurre for their deviation and transgression therein ? . whether the kings majesties privie councell , either with the chiefe governor , or governors of this kingdome , or without him or them be a place of iudicature , by the common lawes , and wherein ; causes betweene partie and partie , for debts , trespasses , accompts , possession , or title of land , or any of them may be heard and determined , and of what civill causes they have iurisdiction , and by what law , and of what force is their order or decree in such cases , or any of them ? . the like of the chiefe governors alone . . whether grants of monopolies be warranted by the law , and of what , and in what cases , and how , and where , and by whom are the pretended transgressors against such grants punishable , and whether by fine , mutillation of members , imprisonment , losse and forfeiture of goods or otherwise , and which of them ? . in what cases the lord lieutenant , lord deputy , or other chiefe governor , or governors , of this kingdome , and councell ; may punish by fine , imprisonment , mutillation of members , pillorie , or otherwise , and whether they may sentence any to such , the same , or the like punishment for infringing the comands of , or concerning any proclamations , or monopolies , and what punishment doe they incurre that vote for the same ? . of what force is an act of state , or proclamation , in this kingdome , to bind the libertie , goods , possession , or inheritance of the natives thereof , whether they or any of them can alter the cōmon law , or the infringers of them loose their goods , chattells , or leases , or forfeite the same , by infringing any such act of state , proclamation , or both , and what punishment doe the sworne iudges of the law that are privy councellors incurre that vote , for such acts , and execution thereof ? . are the subjects of this kingdome subject to the marshall law , and whether any man in time of peace , no enemy being in the field with banners displaied , can be sentenced to death , if so , by whom , and in what cases , if not , what punishment doe they incurre , that in time of peace execute marshall law ? . whether voluntary oathes taken freely before arbitrators for affirmance , or disaffirmance of any thing , or the true performance of any thing be punishable in the castle chamber , or in any other court , and why , and wherefore ? . why , and by what law , or by what rule of policie is it that none is admitted to reducement of fines , and other penaltie in the castle chamber , or councell-table , untill he confesse the offence for which he is censured , when as revera he might be innocent thereof , though suborned prooffes or circumstance might induce a censure ? . whether the iudges of the kings bench , or any other iudges of gaole delivery , or of any other court , and by what law doe , or can deny the copies of indictments of felony , or treason , to the parties accused contrary to the lawes ? . what power hath the barons of the court of exchequer ; to raise the respite of homage , arbitrarily , to what rate they please , to what value they may raise it , by what law they may distinguish betweene the respite of homage upon the diversitie of the true value of the fees , when as escuadge is the same , for great and small fees , and are proportionable by parliament ? . whether it be censurable in the subjects of this kingdome , to repaire unto england , to appeale to his majestie for redresse of injuries , or for other lawfull occasions , if so , why , and in what condition of persons , and by what law ? . whether deanes or other dignitaries of cathedrall churches be properly , and de mero jure donative by the king , and not elective or collative , if so , why & by what law , & whether the confirmation of a deane de facto of the bishops grant be good & valid in law or no , if not by what law ? . whether the issuing of quo-warrantoes out of the kings bench , or exchequer , against burroughes that anciently and recently sent burgesses to the parliament , to shew cause why they sent burgesses to the parliament , be legall , or if not , what punishment ought to be inflicted upon those , that are , or hath been the occasioners , procurers , and iudges of , and in such quo-warrantoes ? . by what law are iurors that give verdict according to their conscience , and are the sole iudges , of the fact , censured in the castle-chamber , in great fines , and sometimes pillored with losse of eares , & boared through the tongue , and marked sometimes in the forehead , with a hot iron , and other like infamous punishment ? . by what law are men censurable in the castle-chamber , with the mutillation of members , or any other brand of infamy , and in what causes , and what punishment in each case there is due without respect of the qualitie of the person or persons ? . whether in the censures in the castle-chamber regard be to be had to the words of the great charter ( viz ) salvo contenemento , & c ? . whether if one that steales a sheepe , or commit any other felony , & after flyeth the course of iustice , or lyeth in woods or mountaines upon his keeping , be a traytor , if not , whether a proclamation can make him so ? . vvhether the testimony or evidence of rebels , traytors , protected theeves , or other infamous persons , be good evidence in law to bee pressed upon the tryalls of men for their lives , or whether the iudge or iurors ought to be iudge of the matter in fact ? . by what law are fayres and markets to be held in capite , when no other expresse tenure be mentioned in his majesties letter-pattents , or grants of the same fayres and markets , although the rent or yearely summe be reserved thereout . copia vera . extract . per phil. fern . cleric . parl. com. the answer and declaration of the ivdges , vnto the questions transmitted from the honorable house of commons unto the lords spirituall and temporall in parliament assembled , whereunto they desired their lordships , to require the said iudges answers in writing forthwith . may . . in all humblenesse the said iudges doe desire , to represent unto your lordships , the great sence of griefe that they apprehend out of their feare , that they are falne from that good opinion , which they desire to retayne with your lordships and the said house of commons in that ( notwithstanding their humble petition and reasons to the contrary exhibited in writing , and declared in this most honorable house ) your lordships have over-ruled them , and often commanded their answers unto the said questions , although they have informed your lordships , and still with assurance doe averre , that no president in any age can be shewen that any iudges before them were required or commanded to give answer in writing , or otherwise unto such generall , or so many questions , in such a manner in parliament , or elsewhere , unlesse it were in that time of king richard the d . which they humbly conceive , is not to be drawne into example . and therefore they yet humbly supplicate your lordships so farre , to tender their profession and places , and their relation , to his majesties service , as to take into your serious considerations , the reasons that they have annexed to this their answer , before their answer be entred , or admitted , among the acts of this high court , and that if your lordships in your wisdomes , shall after thinke fit to give any copies of their answers , that for their iustification to the present and succeeding times your lordships will be pleased to require the clerke of this most honorable house , that no copies may be given of the said answers without the said reasons . . secondly the said iudges humbly desire your lordships to be pleased , to be informed , that the words in his majesties writs , by which they are commanded to attend in parliament , are , that the said iudges shal be present with the lords-iustices or other chiefe governor and your lordships , at the said parliament , called pro arduis & urgentibus regni negotijs super dictis negotijs tractaturi & consilium suum impensuri : and they desire your lordships to take into your consideration whether any advice may be required by your lorpships , from them , but concerning such particular matters , as are in treaty and agitation and judicially depending before your lordships , upon which your lordships may give a judgement , order , or sentence , to be recorded among the records and acts of this honorable house , and whether they may be commanded by your lordships , to subscribe their hands unto any opinion or advice they shall give upon any matters in debate before your lordships there , and whether your lordships can conceive any finall resolution upon the matters contayned in the said questions . . thirdly , although the said questions are but twenty two in number , yet they say , that they contayne at least fifty generall questions , many of them of severall matters , and of severall natures , within the resolution of which most of the great affaires of this kingdome , both for church and common-wealth , for late yeares may be included ; and therefore the said iudges do openly aforehand professe , that if any particular , that may have relation to any of those questions shall hereafter come judicially before them , and that eyther upon argument or debate ( which is the sive or fann of truth ) or discovery of any generall inconvenience , to the king or common-wealth in time ( which is the mother of truth ) or by further search or information , in any particular , they shall see cause , or receive satisfaction for it , they will not be concluded by any answer , they now give to any of these generall questions : but they will upon better ground and reason with their predecessors the iudges in all ages with holy fathers , councels , and parliaments , retract , and alter their opinion according to their conscience and knowledge , and the matter and circumstances of the cause as it shall appeare in judgement before them , it being most certayne that no generall case , may be so put , but a circumstance in the matter or manner may alter a resolution concerning the same . . fourthly , the succeeding iudges , and age notwithstanding any answer given by the now iudges , may be of another opinion then the now iudges are , without disparagment to themselves , or the now iudges , in regard that many particular circumstances , in many particular cases may fall out , that may alter the reason of the lawes , in such a case ; which could not be included or foreseene in a generall question , or answer thereunto : and therefore they desire your lordships to consider of what use such answers may be , to the present and future times . . fifthly , many of the said questions , as they are propounded ( as the said iudges humbly conceive ) doe concerne his majesty in a high degree , in his regall and prerogative power , in his government , in his revenue , in the iurisdiction of his courts , in his martiall affaires , and in his ministers of state , so that the said iudges considering their oathes , & the duty which by their places they owe unto his majesty humbly conceive they may not with safety give answer thereunto , without speciall licence from his majesty , and therefore they still humbly pray your lordships ( as formerly they did ) not to presse any answers from them untill his majesties princely pleasure , therein be signified . . sixtly , if the matters of these questions which ayme at some abuses of former times , were reduced into bils , they conceive it were the speedy way to have such a reformation which might bind the present times , and posteritie , and in such proceeding they ought and would most cheerefully contribute their opinions & best endevors , but in such a course ( as they apprehend it ) which points at punishment they have reason to bee sparing in giving any opinion further then the duty of their places doth command from them . . seventhly , although it may be conceived , that the answering of such and so many generall questions , by the now iudges may contribute some helpe to the reformation now so much desired , yet no man knoweth but this new president in propounding of such questions to iudges in succeeding times ( as the iudges & frame & constitution of the common-wealth may be ) may fall out to bee most prejudiciall to the state and common-wealth . . eightly , most of the matters in severall of the said questions , are already by your lordships and the said house of commons voted and represented to his majesty for grievances , and therefore no opinions of the iudges , under favour are needfull or to bee required thereunto , unlesse the same shall come in further agitation and discussion in this honorable house . . the iudges opinions are not usually called upon in parliament , but when upon debate great and difficulte points in law doe arise , where , this most honorable house doth thinke fit to command their opinions , but no resolutions , doe belong unto the said iudges , in parliament , but unto your lordships ; yet in the front and preamble of the said questions , the resolution of the said questions by the iudges , is forthwith desired , to be required by your lordships in writing , although the first question , viz. whether the subjects of this kingdome be a free people , &c. be positively , resolved by the preamble to the said questions , in which it is likewise declared that the said iudges answers thereunto , are not desired for any doubt or ambiguitie which may be conceived or thought of , for , or concerning the premisses , nor of the said questions ; but for manifestation and declaration of a cleere truth , and of the lawes and statutes already planted and setled in this kingdome : and they say that it is impossible , to make any manifestation or declaration of law , or statutes , which may hold or be usefull , upon such generall questions as most of these are , namely . by what law ? in what cases ? of what ? and which of them ? of what power ? of what force ? how ? where ? by whom ? why ? wherefore ? what punishment ? by what rule of policy ? in what condition of persons ? in regard that the next succeeding iudges may be of another opinion , and that a circumstance may alter the reason of this law , in many particular cases , which the wit of man is not able to forsee , or give a generall rule in . and they say that to give answers unto such questions as might give any satisfaction to your lordships , or to the honorable house of commons , would make up a great volume , and require more time than your lordships have afforded unto the said iudges , considering their great toyle , in their circuites the last short vacation , their other imployments in the common-wealth , and their daily attendance on your lordships in parliament , and the ordinary courts of iustice : and yet least they might seeme to come any way short in performance of that duty , which they confesse to be due unto your lordships , or be wanting in promoting or advancing the common-wealth , which they beleeve to be aymed at by the said questions , though it may seeme to drawe damage or prejudice upon their particulars , they doe in all humblenesse present unto your lordships , the ensuing answers unto the said questions which is as much as by their oathes or in the duty they owe unto his sacred majesty ( before his princely pleasure bee therein signified ) they can answer thereunto . . to the first , they answer , that the subjects of this kingdome are a free people and are , for the generall to bee governed onely by the common-lawes of england and statutes of force in this kingdome , yet they say that as in england , many statutes are growen obsolete , and out of use , and some particular ancient lawes ( aswell in criminall as in civill causes ) have beene changed by interpretation of the iudges there , as they found it most agreeable to the generall good of the common-wealth , and as the times did require it ; so , our predecessors the iudges of this kingdome as the necessitie of the times did move them , did declare the law in some particular cases otherwise than the same is practised in england , which the now iudges cannot alter , without apparent diminution of a great part of his majesties standing revenue , and opening a gap for the shaking and questioning of the estates of many of his majesties subjects , and the overthrowing of severall iudgements , orders , decrees , which depend thereupon . for example , if it be found by office of record , sufficient for forme that a man was killed in actuall rebellion , and at the time of his death was seized of lands , hereditaments , goods , or chattels , by the constant declaration of law , and practise of former times here , the crown was intituled to such lands , goods , and chattels , and many mens estates depend thereupon , and yet the law is not so taken in england , so if one or more commit felony , and then stand out upon his or their keeping , and hee or they will not submit themselves to be tryed by the law , but being in that state doe robbe or spoyle and terrifie his majesties people , wherby the countrie is disquieted , this by the constant opinion of our predecessors in this kingdome hath beene adjudged a leavying of warre within the statute . edw. . and so consequently treason . also by the common received opinion & practise in this kingdome , the vvife is to have a third of all the goods , chatels and credits of her husband ( the debts being payed ) although he dispose of all by his will from her : and yet the constant practise is otherwise in england , and other instances of that kind , might be made , so that the words ( onely ) must receive a benigne exposition before the first question can receive a generall answer , in the affirmative . secondly , many causes of great weight and consequence in this kingdome , are to bee decreed and ordered by equitie in the proper courts of equitie , and in course of state at the councell-board , and by particular customes , and contrary to law , for which the common-law and statutes of force in this kingdome give no remedie . thirdly , there are severall other lawes of force in england , and ireland so farre as they have been received , which though some would have to be part of the common-law of england , yet we find them particularly distinguished from it in our printed bookes in parliament rolles in england , as lex est consuetudo parliamenti , jura belli , ecclesiasticall or canon law in certaine cases , civill law in some cases not onely in ecclesiasticall courts , but in the courts of constable and marshall , and of the admiralty , and upon particular occasions , in the other courts lex mercatoria , &c. . to the second , they say that the iudges of this kingdome doe take the oath of iudges , which oath is specified amongst the statutes in . edw. . and is after explaned by the statute of . edw. . and that they may not stay , hinder , or delay the suite of any subject , or his judgement , or execution thereupon ( otherwise then according to the law and course of the court , where they sit ) under pretence of any act of state , proclamation , writ , letter , or direction under the great or privy seale , or privie signet , or letter , or other commandement from the lord lieutenant , lord deputy , iustice , iustices , or other chiefe governor of this kingdome , most of which , doth appeare by their oath expressed in the said statutes , and the said statute of ● . edw. . cap. . and the statute of . edw. . cap. . as to barons of the exchequer . and that as they know no punishment due to iudges , for their deviations & transgressions , without other aggravation ; so they know no punishment layd downe by any law against them for their deviations and transgressions , in hindering staying , or delaying of iustice , contrary to their said oath , other then what is declared in their said oath , and the statute of . edw. . . to the third , they say that it is part of their said oath , as iudges , that they shall not counsell or assent to any thing that may turne to the damage or disherison of our soveraigne lord the kings most excellent majestie , by any manner of way or colour . and that they shall give no advice or counsell to any man great or small in no cases , wherein the king is a party , and they shall doe and procure the profit of the king and his crowne , in all things where they may reasonably doe the same ; and that in the explanation of their said oathes , by the statute of . edw. ▪ cap. . it is declared that they shall give no counsell to great men , nor small , in case where the king is party , or which doth or may touch the king in any point . and as your lordships have beene honorably pleased by an order of this honorable house , bearing date the first of march anno dom. . annoque regni caroli decimo sexto to give way , that they should not be compelled to answer any part of those questions , which did concerne his majesties prerogatives or were against their oathes so they humbly represent unto your lordships , that they conceive that the answering of the particulars of this question , doth concerne both , for that the kings privie counsell as the question tearmes it , or the councell-board , is a court of his majesties high prerogative , where all proceedings are before him , and his counsell , or before his governor ( who doth immediately , to many purposes represent his majesties person ) and the counsell . and where the great affaires of state concerning his majesties honor , government , profit , and of great persons and causes concerning the common-wealth , which , may not conveniently be remedied by the ordinary rules of common-law , and many other causes have beene treated , of , and managed . and as his majesty is the fountayne of all iustice , with in his kingdomes and may grant cognizance of pleas unto his subjects , and corporations , and may by his commission authorize whom he shall thinke fit , to execute many branches of his authoritie , so they humbly conceive , it doth not stand with their oathes or duties of their places , who are but iudges of the ordinary courts of iustice , before his majesties pleasure signified in that behalfe , to search into the commissions or instructions of the chiefe governor and counsell , or to give any opinion concerning the limits , jurisdiction , orders , decrees , proceedings , or members of that high court , and that the king hath a prerogative for the hearing some of the matters in this question specified before his chiefe governor ; we beseech your lordships to cast your eyes on the statute of . h. . cap. . in this kingdome , where after m●●ters are directed to be sent to the ordinary courts , yet the kings prerogative is expressely saved , notwithstanding all which his gracious majesty ( for whom it is most proper ) hath of late beene pleased to limit the proceedings of that board by his instructions in print . . to the fourth , they answer as to the third . . to the fift they say that generally all grants of monopolies , whereby trading , manufacture , or commerce is restrayned , & the profit which should goe to many hindred & brought into a few hands , are against law , the liberty of the subject and the good of the common-wealth , though they carrie never so faire a pretence of reforming abuses , and that the pretended transgressors against such grants are not at all punishable by any rule of law , that they know of , and yet they say , that they conceive that his majestie , that is , the head and father of the common-wealth may restrayne the use and importation and exportation of certaine commodities , or confine the same into a few hands for a time where there may be likelyhood of his majesties profit , ( which is the profit of the common-wealth , ) and no apparent prejudice to the common-wealth doth appeare , and that when time shall discover such prejudice , then such restraints ought to cease ; so if a man by his owne invention at home , or travell , observation , or charge abroade doth introduce a new profitable , and usefull trade or profession into the common-wealth , in such cases his majesty may lawfully grant & licence the only making of such commoditie or teaching or using of such trade for a certayne time , and the transgressors against such warrantable grants , may be punished by payment of damages unto the patentee , in an ordinary course of iustice , or otherwise , as the nature of the offence and matter doth deserve ; and as the consequence and importance of the matter may be to the king , state , or common-wealth . and they say that the matter , manner , restrictions , limitations , reservations , and other clauses contayned in such grants or licences , and the commissions or proclamations , thereupon and undue execution thereof , and severall circumstances may make the same lawfull or unlawfull , whereof they are not able to give any certayne resolution ( before some particular commes in judgement before them ) neyther are they otherwise able to answer the generall in the particulars of the said question , of what , in what cases , how , where , and by whom , or which of them , wherein whosoever desireth further satisfaction he may please to have recourse unto the knowne cases of monoplies , printed authorities , and written reports , and unto the statute of . ia. in england concerning monopolies , and the severall exceptions and limitations therein . . to the sixt , they say they can no otherwise answer then they have already in their answer to the third question , for the reasons therein setforth . . to the seventh , they say , that a proclamation or act of state cannot alter the common-law , and yet proclamations are acts of his majesties prerogative , and are , and alwayes have beene of great use , and that the contemners of such of them as are not against the law , are and by the constant practise of the star-chamber in england have beene punished , according the nature of the contempt , and course of the said court , and although acts of state , are not of force to bind the goods , possessions , or inheritance of the subject , yet they have beene of great use for the setling of the estates of very many subjects in this kingdome , as may appeare in the report of the case of irish gavelkind in print . and further to that question they cannot answer for the reasons in their answer unto the third question set forth . . to the eight , they say , that they know no ordinary rule of law , by which the subjects of this kingdome are made subject to marshall-law in time of peace , and that they find the use thereof in time of peace , in england , complayned off , in the petition of right , exhibited to his majestie in the third yeare of his raigne , and that they conceive the granting of authority and commission for execution thereof , is derived out of his majesties regall and prerogative power , for suppressing of suddaine and great insolencies and insurrections , among armies , or multitudes of armed men lawfully or unlawfully convented together , ( the right use wherof in all times hath beene found most necessary in this kingdome ) and further to that question they cannot answer , for that as they conceive , it doth concerne his majesties regall power , and that the answering of the other part of the question doth properly belong to another profession , whereof they have no cognizance . . to the ninth they say , that as the taking of any oath before any but such iudges or persons as have power to give or demaund an oath , for decision of controversies , is by most divin● in most cases counted to be a rash oath , and so an offence against god , within the third commandement , so the prescribing and demaunding of a set oath by any that cannot derive power so to doe from the crowne ( where the fountaine of iustice under god doth reside ) is an offence against the law of the land , and as for voluntary and extra judiciall oathes , although freely taken before arbitrators or others , they say ( as this kingdome is composed in many particulars , as the nature & consequence of the cause , or the quality of the person who taketh , or before whom the same is taken , may concerne the common-wealth , or the members therof ) such taking of such oathes or proceeding or grounding on such oath in deciding of controversies , according to the severall circumstances , that may occurre therein , or the prejudice , it may introduce to the common-wealth , may be punishable by the common-law , or ( if it grow unto an height or generall inconvenience to the common-wealth or members thereof ) in the castle-chamber ; for though such an oath be voluntary , yet in most cases , it is received by him , that doth intend to ground his iudgment thereon , and after the oath is taken , the arbitrator , or he that intends to yeeld faith to the party , that tooke the oath , doth examine him upon one or more questions , upon the said oath , unto the answer whereof , hee doth give faith and assent , trusting on the said oath . and whereas oathes by gods institution were chiefly allowed to bee taken before lawfull magistrates , for ending of controversies , yet common experience doth teach in this kingdome , that oftentimes orders and acts grounded on such voluntary oathes , beget strife , and suits ; and commonly such orders when they come to bee measured by rules of law , or equitie in the kings courts become voyde , after much expence of time , and charge that we say nothing of that , that thereby many causes proper to the kings courts are drawn ad aliud examen , and thereby the kings justice and courts often defrauded and declined . . to the tenth , they say , that they are not iudges of rules of policie , but of law , and that they know no certayne rule of law , concerning reducement of fines . the same being matters of his majesties own meere grace , after a man is censured for any offence : and that they know no law , that none shall be admitted to reducement of his fines or other penalties in the courts in the question specified , untill he confesse the fact for which he was censured . but forasmuch as the admittance to a reducement after conviction , for an offence , is matter of grace and not iustice ; it hath beene the constant course of these courts both here and in england , for cleering of his majesties justice ( where the partie will not goe about to cleere himselfe , by reversall of the censure or decree ) not to admit him to that grace , untill he hath confessed the justnesse , of the sentence pronounced by the court against him . and that the rather for that commonly the ability and disabilitie of the partie doth not appeare in judgement before them but the nature and circumstances of the offence , according to which , they give sentence against him or them , in terrorem after which , when the partie shall make the weaknesse of his estate appeare , or that the court is otherwise ascerteyned , that they doe of course proportion the censure , or penaltie , having regard to his estate . . to the eleventh , they say , that neither the iudges of the kings bench ( as they informe us , that are of that court ) or iustices of gaole delivery , or of any other court , doe or can by any law they know , deny the copies of indictments , of felony , or treason , to the partie only accused as by the said question is demanded . . to the twelfth , they say , that where lands are holden of the king by the knights service , in capite , the tenant by the strict course of law ought in person to doe his homage to the king , and untill he hath done his homage , the ancient course of the exchequer hath beene & yet is , to issue processe of distringas out of the second remembrance office , to distrayne the tenants ad faciendum homagium or pro homagio suo respectuādo , upon which processe , the shiriffes returneth issues . and if the tenant doe not therupon appeare and compound with the king , to give a fine for respite of homage , then the issues are forfeyted to the king for his contempt , but if he appeare , then the court of exchequer doth agree with him to respite his homage for a small fine , wherein they regulate themselves ▪ under the rate expressed and set downe in england by vertue of a privie scale in the . yeare of queene elizabeth , whereby the rates are particularly set downe , according to the yearely value of the lands , which rates are confirmed by act of parliament in . iacob . regis cap. . in england , before which time there was not any such certayntie , but the same rested in the discretion of the court by the rule of common-law , and so it doth at this day in ireland , howbeit we conceive that the court of exchequer here doe well to regulate their discretions by those rates in england , and rather to be under then to exceede the same , which the barons there doe , as they doe informe us , that are iudges of the other courts . . to the . they say , that they know no rule of law or statute , by which it should be cēsurable , in the subjects of this kingdome to repayre into england , to appeale unto his majesty for redresse of injuries , or for other their lawfull occasions , unles they be prohibited by his majesties writ , or proclamation or , other his command . but they find that by the statute of . rich. . the passage of the subject out of the realme , is prohibited without speciall licence , excepting noblemen , & others in the said statute specially excepted , & some inference to that purpose may be made upon the statute of . hen cap. . in this kingdome . . to the . they say , that some deanries & dignities , not deanes or dignitaries ( as the question propounds it ) are properly , & de mero jure donative by the king , some elective , & some collative , according to the first foundation & usuage of such churches , & they humbly desire that they may not be required to give any further answer to this question ; for that it may concerne many mens estates which may come judcially in question before them . to the . they say , that they conceive that where priviledges are claymed by any body politicke , or other , the kings counsell may exhibite à quo-warranto to cause the parties clayming such priviledges , to shew by what warrant they clayme the same , & that the court cannot hinder the issuing of processe at the instance of the kings atturney , or hinder the kings atturney to exhibite such informations . but when the case shall upon the proceedings be brought to judgment , then & not before the court is to take notice and give judg●ment , upon the merite & circūstances of the cause , as upon due consideration shal be conceived to be according to law , in which case the iudges or the kings atturney ( as they conceive ) ought not to be punished by any ordinary rule of law or statute that they know . but for the particular case of quo-warranto for that it hath beene a great question in this present parliament , & so concernes the highest court of justice in this kingdome , & also concernes two other of his majesties courts of justice , & therin his majesties prerogative in those courts , they say that they cannot safely deliver any opinion therein , before it comes judicially before them , and that they heare it argued and debated by learned counsell on both sides . . to the sixteenth they say , that although the iurors be sole iudges of the matter of fact , yet the iudges of the court are iudges of the validitie of the evidence , and of the matters of law arising out of the same , wherein the iury ought to be guided by them . and if the iury in any criminall cause betweene the king and party , give their verdict contrary to cleere and apparent evidence delivered in court , they have beene constantly , and still ought to be censured in the star-chamber in england , and castle-chamber here , for this misdemeanor in perverting the right course of justice , in such fines and other punishment as the merites & circumstances of the cause doth deserve , according to the course of the said courts , for that their consciences ought to be directed by the evidence , and not to bee misguided by their wills or affections . and if the iury know any matter of fact , which may eyther better or blemish their evidence , they may take advantage thereof , but they ought to discover the same to the iudges . and they say that this proceeding in the court of castle-chamber is out of the same grounds , that writs of attaint are against a iury that gives a false verdict , in a court of record at the common-law betwixt partie and partie , which false verdict being found by a iury of twenty foure , notwithstanding that the first iurie were iudges of the fact , yet that infamous judgement was pronounced against the first iury , which is next or rather worse then judgment to death , and did lay a perpetuall brand of perjury upon them , for which reason it was anciently called the villanous judgement , and they say that the law to direct the punishment for such offences is the course of the said court , which is a law as to that purpose , & the statute of . henr. . cap. . and other statutes in force in this kingdome . . to the seventeenth , they say , they can answer no otherwise , then they have in their answer to the next precedent question . . to the eighteenth , they say , that in a legall construction the statute of magna charta in which the words salvo contenemento are mentioned is only to be understood of amerciaments & not of fines , yet where great fines are imposed in terrorem upon the reducement of them regard is to be had to the abilitie of the persons . . to the nineteenth , they say , that if one doth steale a sheepe or commit any other felony , and after flyeth the course of justice , or lyeth in woods , or mountaynes upon his keeping , yet doth he not thereby become a traytor , neyther doth a proclamation make him so , the chiefe use whereof in such a case is , to invite the partie so standing out to submit himselfe to justice , or to forewarne others of the danger they may runne into by keeping him company , or giving him mayntenance , and reliefe whereby he may the rather submit to iustice . . to the twentieth , they say , that the testimony of rebels , or traytors under protection of theeves , or other infamous persons is not to bee used or pressed as convincing evidence upon the tryall of any man for his life , and so is his majesties printed instructions , as to persons condemned , or under protectiō , yet the testimony of such persons not condemned & being fortified with other concurring proofe , or apparant circumstances may be pressed upon any tryall , and for discovering of their fellowes , abetors , or relievers as the circumstances may offer themselves in their examinations , especially if before they confesse themselves guiltie of the offence in imitation of the approver at the common-law , whereof no certaine rule may be given . and it neede not be made a question here , whether the iurors or iudges ought to be iudges of the matter of fact , it being positively layd downe in the sixteenth question that they are . and though their false verdict doth convince , or not convince the prisoner , yet they may be questioned , and punished for a false verdict , as in their answer to the sixteenth is already declared . . to the twentie one , they say , that that question is now judicially depending , and hath beene already solemnely argued in his majesties court of vvardes , in which court their assistance for declaration of the law therein is already required . and therefore they humbly desire they may not be compelled to give any opinion touching that point untill it be resolved there . . to the twentie two , they say , that they doe conceive , that there is no matter of law contayned in the said question , yet for the further satisfaction of your lordships , they say that upon view of an act of state , bearing date at his majesties castle of dublin the twenty fourth of december . grounded upon his majesties letters of the fift of iuly then last past , it appeared unto them that foure shillings in the pound , as of his majesties free gift and reward , out of the first payment of the increase of rent reserved to his majestie , was allowed to the iudges that were commissioners and attended that service . and we humbly conceive that the receiving of that foure shillings in the pound , of his majesties bountie , stands well with the integrity of a iudge , and those iudges did informe them that they did not avoyde any letters-patents upon the commission of defective titles but received such to compound as submitted for the strengthning of their defective patents and titles , and such as would stand upon the validity of their grants were left to the tryall at law . and that the compositions made after the said grants of the foure shillings in the pound were made according to rules and rates agreed upon by all the commissioners before his majesties said letters or the said act of state , and not otherwise . george shurley . hu. cressy . vvilliam hilton . edw. bolton . iames barry . sa. mayars . iam. donellan copia vera . extract per phil ▪ percivall . mr darcies reply to the answer of the ivdges . my lords , his majesties most humble and faithfull subjects , the knights , citizens , and burgesses in parliament assembled representing the whole commons of this realme calling to mind the late invasion made upon the lawes and just rights , have heretofore presented unto the lords house certaine questions of great weight and moment , to the end their lordships might thereunto require the answer of the iudges in writing , which being long sithence accordingly commaunded by their lordships , the iudges have of late delivered in , a writing to the lords house by them styled , an answer unto the said questions , which being sent to the commons house to be taken into consideration , and the same & all the partes thereof being weighed in the ballance of the grave judgement , and knowledge of the said house of commons , the said answer was upon question voted to be ( minus pondus habens ) and not to merit the name of an answer . this my lords being the occasion of this conference , the house of commons appointed me , a feeble organ , to utter part of their sense of the style and manner of this writing , and to declare part of those reasons which satisfied their judgements ; that , the said writing was short and insufficient ( o utinam ) that were all . my lords , the iudges had divers moneths time to answer plaine questions ( plaine , i speake of those who would be plaine ) the house of commons a few dayes onely to consider of that intricate writing . my powers are weake , and the infirmities of my body are visible , both in part occasioned by an high hand , i should therefore faint under the weight of this burden ; but that the taske is not great , i doe represent to your lordships by way of rehearseall onely some partes of those reasons and authorities which were gathered and ripened to my hands by the house of commons . my lords in matters of importance the course hath beene ancient and not yet deserted , to begin with prologues or exordiums , the worke is not mine i will onely ( in nomine sanctissimae trinitatis ) make my entrance upon the matter of this conference which is a generall concernment ; a great concernment of the whole kingdome : and to that purpose i will declare the causes and reasons which moved or rather inforced the house of commons , for to disgest and propound the said questions , and to make it appeare that none of them is ( idea platonica ) none of them circumventing , and all depending now or of late . to mantayne the preamble to questions ( viz. ) that this nation ought to bee governed by the common-lawes of england , that the great charter and many other beneficiall statutes of england are here of force , by reasoning or argumentation , were to alter a foundation layd . yeares past , and to shake a stately building thereon erected by the providence and industrie of all the ensuing times and ages : this is so unanswerable a truth and a principle so cleere , that it proveth all , it needeth not to be proved or reasoned . reasons why the questions were propounded . the reason for the first was , the late introduction of an arbitrary government in many cases by some ministers of estate contrary to the lawes and statutes aforesaid , a government contrary to the just freedome & property of his majesties people , in their lives , estates and liberties , whereas the subjects governed by the lawes of england are and ought to be free subjects , the late disuse therefore of those lawes in execution , and the measure of justice being squared by the lesbian line of uncertaintie , as contrary to the lawes aforesaid , as any ( oppositum is in objecto ) produced the first question , and i hope not improperly . the reason for the second in part ariseth out of the oath of a iudge . edw. . to be found among the printed statutes polton fol. . and out of the statutes of . edw. . cap. . . & . polton fol. . this oath is comprehensive and extends to the iudges , the barons of the exchequer , and iustices of gaole-delivery , and their associats . this great and sacred oath contaynes severall branches . first , well & lawfully to serve the king & his people in the office of a iustice . secondly , not to counsell or consent unto any thing tending to the kings damage or disinherison . thirdly , to warne the king of his damage when hee knowes it , fourthly , to doe equall iustice to rich and poore , &c. without respect of persons . fiftly , to receive no reward . sixtly , to take no fee of any other then the king . seventhly , to commit such as breake the peace in the face of iustice . eightly , not to mantayne any suite . ninthly , not to deny iustice notwithstanding the kings letters or commandements , and in that case to certifie the king of the truth . tenthly , by reasonable wages to procure the profits of the crowne . eleventhly , if he be found in default , in any the matters aforesaid , to bee in the kings mercie , body , lands , and goods . the second reason principally moveth from the following particulars ; in the kings bench the major-part of the iudges denyed his majesties writ of prohibition to the late court called the high commission , in a cause meerely temporall . the foure courts of iustice durst not proceede in any cause depending before the chiefe governor , or at the counsell-board upon paper petitions , or rather voyde petitions , these paper-petitions being the oblique lines aforesaid , grave iudges of the law were commonly assistants , and more commonly referrees in the proceedings upon these paper-petitions , in what causes ? in all causes proper for the cognizance of the common-law , and determinable by writs of right , and petitions of right , and so to the most inferior action , the like of the courts of equitie , whether this be lawfully to serve the king and his people , or whether the king , was at losse by the non-prosecuting of the causes aforesaid in their proper orbes , by originall writs , which might afford the king a lawfull revenue , and likewise by the losse of fines , and amerciaments , naturall to actions at the common-law , or whether the losse aforesaid was made knowne to his majestie , or who consented to the kings damage therein , or whether this be a denyall of justice ? to deferre it upon paper orders or commaunds , be conformable to that oath , i will pretermit ; yet your lordships may even in this mist discerne a cleere ground for the second question . the motive which in part stirred the third , and fourth questions , was the infinity of civill causes , of all natures without exception of persons , without limitation of time proceeded in , ordered , decreed , and determined upon paper-petitions at counsell-board , & by the chiefe governor alone ; the commons of this kingdome observing the iudges of the law who were counsellors of estate , to have agreed and signed unto such orders , the iudges of the foure courts , and iustices of assize in all the partes of the kingdome to bee referrees upon such proceedings , wherby these new devises , were become so notorious , that as all men heavily groaned under them , so no man could bee ignorant of them . by the colour of proclamations more & more frequent , and of the orders , and acts of state at counsell-board , which were in a manner infinite , and other proceedings mentioned in these questions , these effects were produced ; first imprisonment , close imprisonment , of such numbers , that a great defeate in a battle could hardly fill more gaoles and prisons , then by these meanes were surcharged in ireland , secondly by seizures made by crewes of catchpoles and caterpillers , his majesties leige people lost their goods , as if lost in a battaile , nay worse without hope of ransome ; thirdly possessions were altered , and that so often , and so many , that more possessions were lost by these courses in a few yeares , then in all the courts of iustice in ireland in an age or two ; the fourth effect was this , after liberty was taken away , propertie altered , and possession lost , by the wayes aforesaid , that was not sufficient , the subject must be pillored , papered , stigmatized , and the image of god so defaced with indignities , that his life became a continuing death the worse of punishments , in these feates were advising , and concurring some grave and learned iudges of the land , who were counsellors of estate , as by their signatures may appeare . the house of commons finding as yet no warrant of president , nor countenance of example in the law of england , to beare up the courses aforesaid , have drawne the said questions from the effects aforesaid . my lords , the liberty , estate in lands or goods , the person of the subject ; nay his honor and spirit being invaded , altered , and debased in manner aforesaid , there remayned yet one thing , his life : see how this is brought into play , nothing must escape , were not the gates of ianus shut up , was not the kings peace universall in his three kingdomes , when a peere of this realme , a counsellor of the kings , a great officer of state was sentenced to be shot to death in a court marshall , what the cause was , what defence was permitted , what time given , and what losse sustayned ? i submit to your lordships , as therein most neerely concerned , were not others actually executed by marshall law , at such time as the kings iustice in his courts of law , was not to be avoyded by any person whatsoever . this was in part the ground of the eight question . this question is plaine , a late introduced practise here , contrary to former use , and no appearing president to warrant such prosecution for a voluntary oath , and the great benefit , and quiet accrewed to his majesties people by arbiterments conceived by consent of parties , hath in part occasioned this question . heretofore this confession was not required , for the iustnesse of the iudgements was then able enough to beare them up , and if the judgement in some case had beene otherwise , what force can the confession of a delinquent add to a iudiciall act , this is part of the reason for this question . a complaint exhibited in the house of commons touching the denyall of the copy of a record , which the complaynant undertooke to iustifie , in part raised this question . in king iames his time , by an order conceived in the court of exchequer upon great debate , and warranted by ancient presidents the respite of homage was reduced to a certaintie , viz. two shillings sixe pence sterling ▪ for a mannor yearly , and so for townes , and other portions of land , this course was alwayes held untill now of late the respite is arbitrarily raysed as appeares by the second remembrances certificate , viz. i finde that anciently before the beginning of king iames his raigne , every mannor payed three shillings foure pence irish per annum , & every towne-land , twentie pence irish per ànnum , as a fine for respite of homage , but cannot finde any order or warrant for it , untill the fifth yeare of the said kings raigne , and there , in easter terme . i finde an order entred directing what homage every man should pay a copy whereof you have already from mee , the preamble of which orders sheweth that , that matter had beene long depending in the court undecided , which induceth me , to beleeve that there was no former president or order in it . about three yeares after , the freeholders of the countie of antrim as it should seeme , finding this rate to be too heavy for them , they petitioned to the lord chichester then lord deputy for reliefe therein , & i finde his lordships opinion to the court thus recorded . i know much of the petitioners . lands is waste , and no part of it improved by any manner of husbandrie , other then in grazing of cattle , and in sowing of little oates . and the proprietors of the land , to be for the most part very poore , and needie , and the two children of neale mac hugh to be yet under age ; wherefore i thinke it fit that the court of exchequer should consider thereof , and rate the respite of homage accordingly for a time , untill the countie be better inhabited , and these men made to understand that it is not an imposition , but a lawfull duty and payment due to his majestie . this is my advise and opinion for the present , xxx . die april . . arthur chichester . vpon this the said freeholders were admitted to pay but foure pence irish every twogh of land , it consisting of sixteene towne-lands , and according to this rate they still payed untill the yeare . and then the court taking notice of the unequalitie of it , made this order , . febr. . after this i finde that all his majesties tenants did conforme themselves to the said order of . untill easter terme . in which terme this ensuing order was made which is the last that i can finde recorded in my office . henry vvarren . i finde by the payments made in the late queen elizabeths time that the rates of homage payed was according to the said order of . henr. vvarren . divers were actually imprisoned and long kept in close restraint , for none other cause then in dutifull manner & be seeming termes to have made knowne their particular complaints to his sacred majesty imprisonment of this kind was frequent , therefore it is not improper to demaund by what law it was done . many have lost great estates and possessions by orders of the counsel-bord , although the deanes elected , or actuall deanes confirmed their estates , if no donation from the crown were found upon record to the confirming deane , and this after that by verdict at the common-law the deanrie was found to be elective , this question therefore is not improper . after such time as this parliament was agreed upon at counsell-board to bee summoned ; some persons having prepared bloudy and destroying bils to be past as lawes , and intending to defeate by act of parliament very many of his majesties faithfull subjects of this kingdome of their estates and liberties , and having obtayned some undue elections by threates or intreaties , & mistrusting that all should run cleere before them , have caused twenty foure corporations to bee seized , upon the returne of the first summons in severall quowarrantees procured by sir richard osbalston late atturney generall to shew cause why they sent burgesses to the parliament , the said corporations having formerly sent burgesses to the parliament , even to the last parliament , by meanes whereof the said corporations sent no burgesses in the beginning of this parliament , from this act being done in a legall court against the high court of parliament sprung this question , which my lords is of consequence , if parliaments be so as without question they are . the faith which the common-law giveth to verdicts , the iurors being iudges of the fact , the late usage of that great court growing to the punishment of iurors , and others in greater numbers by heavier fines , and more shamefull punishments without respect to estate , age , sex or qualitie then was or can be observed in all precedent times , and the just sense thereof , moved the house of commons to propound these questions . my lords , a poore fellow stole or was accused to have stolne a sheepe , feare , or guilt , or both brought him to the mountaynes , another relieved him , the reliever was executed as a traytor , and after the principall submits to tryall and judgment , and was acquited , this example my lords i hope may warrant the question . the testimony of such infamous persons , have brought men of qualitie to their tryall , for their lives and being acquited the iurors being of very good ranke , were heavily censured in the castle-chamber , aswell by fines surmounting their abilities , as by most reprochfull punishments , upon these acts , the question is grounded . there being no warrant in the printed law , or otherwise for ought yet appearing for to make this a tenure in capite , the constant course of the court of wards taking it to be no tenure in capite , since the erection of that court untill trinitie terme . it was then and not before certified a tenure in capite by the then atturney of that court , who said that the iudges concurred with him in that opinion , by which meanes counsell did not then argue , and the next terme after were denyed to be heard , ne aliquid contra responsum prudentum this being done in the court of wards , the question did spring from thence . the two and twentieth question was not yet agitated in the house of commons nor brought thither , therefore my lords that may be deferred to a further conference ; by this which i have opened being the smaller part of those weighty reasons delivered unto mee by the house of commons , yet the best i can for the present remember , i hope your lordships are satisfied that those questions were not intrapping , fayned , or circumventing , or phantazies , as formerly i touched . in the next place i will labour to give your lordships a more cleere satisfaction , that those questions grounded upon sufficient and apparant reasons , and causes doe deserve cleare and satisfactorie answers , and to remove all doubts , the questions i will no more call questions , i will humbly style them causes of weight and consequence , wherein the lords and commons of this realme on the behalfe of themselves and their posteritie in after times , are plaintifes , and only delinquents of an high nature are defendants , in this high court of parliament . it is not unworthy your lordships consideration ; to whom the questions were put , i answer unto the iudges of the land , who are , and sure i am ought to be first etate graves , secondly , eruditione praestantes , thirdly , usu rerum prudentes , fourthly , publica authoritate constituti . the persons unto whom being thus qualified , the place where , is most considerable , it is the high court of parliament , the iudges are called thither ( circa ardua & urgentia negotia regni ) of the whole kingdome what to doe ( quod personaliter intersint , cum rege ac cum caeteris de consilio suo super dictis negotijs tractaturi consiliumque impensuri . ) therefore they are not called thither to bee ciphers in augurisme , or tell clockes , no , those great causes are mentioned in their writ , and upon that great oath , they are to give faithfull counsell and make direct answers to your lordships in all things wherein ( ardua & urgentia regni ) are concerned , and whether ? that concernment doe comprehend the matters aforesaid . i doe humbly offer to your lordships great consideration most of the matters included in those questions are solemnely voted in both houses as grievances , as may appeare by the petition of remonstrance , the iudges could not be ignorant of this , and do take notice of the same in their preamble . my lords , in the third place no man is more unwilling to discover the nakednesse of my fathers , if any be , then i am , yet the question being not whether the arke should be rescued from the philistines , but whether it should be preserved against the negligence of some ophni and phines in their hands that have the custodie of it , therefore i must obey , and as i am commanded i will offer unto your lordships , how the preamble and answers of the iudges might bee sufficient , and wherein they are both defective and dangerous . the iudges in the first reason of their preamble , insist much upon the want of president in this kinde , onely one president in the raigne of king richard the seconds time , which they pray may not be drawne into example . my lords , this reason requires a more cleere explanation which wee hope shall be demaunded in due time . it urgeth us to this just protestation , that before the best flower in his majesties royall garland should wither , wee shall be ready to water the same with showers of our bloud , even to the last drop in his majesties service , and with our lives and substance will mantayne the just prerogative of our gracious lord king charles and his posteritie , whom wee pray god to flourish on earth over us and ours , untill all flesh bee convoked before the last great tribunall ; yet my lords that president might be spared by the iudges , of this no more for the present , i will not exasperate , had they pleased , more naturall presidents might be stood upon , and easily found , and even in that ill remembred president ; if the iudges in richard the seconds time had made direct and lawfull answers , they had escaped punishment and prevented many inconveniences which ensued . my lords , if presidents be necessarie , of many i will enumerate a few , deutronomy cap. vers. . si difficile & ambiguum , &c. almightie god directs us the way to truth , deutronom . cap. . vers. . interroga patrem tuum , &c. the romanes sent to greece for a declaration of their lawes , in causes like to happen , tit. liv. decad. . fol. . g. lancelotus de ecclesiasticis constitutionibus tit. . canonum alij sunt decreta concjliorum , alij statut ' îalij dicta sanctorum , rottoman de iure civili tit. . praetorum dicta & responsa prudentum , which cannot bee without questions , venerable bede lib. . cap. . s. augustine demaunded generall questions ; m. sleiden super eadmerum , fol. . vvilliam the conqueror did call to the iudges , to declare and compile edgars lawes , and s. edwards lawes , which were buried , and forgotten , by the interruption of the danish governement . in the time of king henr. . certaine knights of ireland , desired resolutions in england concerning coparcenerie and received resolutions according to the lawes of england , and this in parliament , as appeares in the statute called statut . de hiber . . henr. . in the printed booke . ordinationes factae de statut ' terr' hiberniae at large in the roll of . edw. . parte prima , memb. . & . rot ' claus. anno . edw. . membr. . rex concedit quod ad primum parliamentum omnes hiberni qui volue●int legibus utantur angliae sine cartis inde fiendis . rot. claus. anno . edw. . parte prima membr. . the same law in case of wardships . ordinationes pro regimine hiberniae . edw. . pat ' membr. . & . edw. . parte prima , memb . which consilium ought to bee understood of the parliament as hereafter i will declare . ordinatio facta de ministris regis in hibernia claus. . edw. . parte secunda memb. . & . & ann. edw. . parte prima in dorso , & anno . edward . . membr. . my lords , i have not yet learned how sillogismes can be made , or answers cathegoricall , without propositions . i am as ignorant after what manner ordinances or reformation could bee made without questions or propositions . it may be objected that the word quere or question is new , that word was nothing strange in edward the thirds time , rot. parliament , . edw. . num . . the commons in parliament prayed that it may be inquired how , it comes to passe that the king hath no benefit of his land of ireland , considering hee had more there then any of his ancestors , may it not be as lawfull to inquire in this parliament , wherefore the king is in debt , and yet his people here gave him more supplies then to any of his ancestors , or wherefore his lawes are not observed , i find no difference . in the printed yeare booke . rich. . fol. . the king propounded severall questions to the iudges in the star-chamber in cases not then depending . their second reason , is fully answered to the first , and for more cleare satisfaction , the words of the writ , which bring them hither , are viz. to give counsell circa ardua & urgentia negotia regni , the matters now in agitation are maxime ardua , maxime urgentia . the yeare bookes of law doe prove provisiones & ordinationes , and no cause is said to bee depending f. n. b. . d. . edw. . . b. thorp . the lords being assembled can make ordinances as strong as a statute , by the opinion of that iudge such ordinances cannot be avoyded , but in parliament , an act or statute may bee avoyded or repealed in parliament . where they say that the questions though in number but twenty two , yet they include fifty two questions , that all the affaires of church & common-wealth may bee included in the resolution thereof , and that they will not bee concluded by their answers to the same . my lords , the house of commons made the questions so many as they are for the more cleare explanation of their candid intentions , and not for difficultie , whereas they might reduce them to fewer , but to the end the answers might be the more punctuall , and satisfactorie unto positive points , and knowne law , and the custody of the law , the great treasure of the land , being committed by his sacred majesty to their trust , to the end they should declare how ? and after what manner , they issued and dispensed that treasure , and discharged that great trust ? and not to bee bound by their resolutions in parliament ; for iudges are and ought to bee bound by resolutions in parliament , and not parliaments by them . to their fourth reason , what succeeding ages will doe , we do well hope , they will not do amisse , that no occasion shall bee administred hereafter which may inforce the house of commons to propound the like questions . that by reason the kings prerogative and the concernment of his other interests they cannot answer without his majesties especiall direction , considering the duties of their places and their oathes . my lords , it is manifest that by their oathes they are bound to interprete the lawes truely betweene the king and his people , and betweene partie and partie , and if in any case granted , it cannot be denyed when the common-wealth desires a declaration of the law in certaine points , wherein they conceive their just liberties to have beene invaded , least under colour of prerogative which the parliament holds to be sacred , some ministers may presume ( as of late they have endevored ) to destroy the peoples just liberties . in the ordinarie courts of iustice , the iudges upon oath are bound to afford the subject iustice against the king , and all others , and are appointed by his majesty for that purpose , all writs are in his majesties name in the kings bench , the pleas are styled coram rege , letters-patents and writs originall are teste me ipso , the king is therefore present in parliament , being the highest tribunall , where in truely he sits in the exaltation of royaltie and greatnesse . therefore the commands of all his ordinary courts are the commands of the king , much more commands in parliament , where his presence is more apparant and essentiall then in all other courts of this kingdome . it appeares copiously by the great charter , and by constant practise of all parliaments since that time , that all courts and iudges were regulated by parliaments , as for the kings prerogative , or revenue , the iudges cannot bee ignorant , but the parliament is and ever hath beene the best mantayner of his just prerogatives , the best overseer of his revenue , which if it fall short , they onely are able and willing to supply . it is true , that the abuses of former times might be reformed for the future by bils to bee past as statutes yet that is away about , and we may not loose the possession of our lawes , and just liberties nor by new statutes admitt impunitie , or give countenance to past offences , statutes of this kind sufficient were already enacted and passed in former ages . the declaration of a knowne law , and the manifestation of wholesome statutes already established well may helpe the common-wealth , for the present , but cannot in any probabilitie fall out hereafter to be prejudiciall to the state or commonwealth , and there is no president or example of any such prejudice . it is confessed that most of the matters contayned in the questions are alreadie voted for grievances in both houses , and that very justly , but how the law is therein , remaynes yet to be declared , as to this present parliament , which i hope in due time shall bee declared , according to law and justice , as in many parliaments before the same or the like hath beene often done . where they doe againe insist upon the want of president , and withall that in the preamble to the questions , the protestation cleares the law . this word president strikes close unto us , i have answered it before by presidents , yet some more presidents i will offer as often as they speake the word president . . elizabeth dy. fol. . b. placit. . the kings atturney demanded the opinion of the iudges , . elizab. dy. . placit. , casus hiber . where the iudges of england signed their opinions to questions propounded by the iudges of ireland , . eliz. dy. fol. . b , plac . . casus hiber . . & . elizab. dy. . the case of arraignement of a peere , the like . càroli by all the iudges of england ; the earle of ormonds case , and yet in none of these cases the matter was depending before them . notwithstanding the protestation may cleare the law , yet in all precedent ages , lawes cleare in themselves , for their greater honor and countenance , they have beene declared and enacted in parliament . the law declared by magna charta was cleare before , yet it was enacted . henr. . and in thirty parliaments since cooke . . b. primes case the statute of praerog . regis . and the statute of . edw. . of treasons , is declarative and so are many other statutes . adam eate the forbidden fruite , cain killed his brother , god demaunded whether this was done , yet he could not be ignorant of the fact . the first article in the civill and canon law courts , is , whether there is such a law all this is done for illustrations sake . my lords , the ground of the questions , and the preamble to the writing styled an answer , kept me so long , that i feare much to have trespassed upon your patience ; and yet the importance of the cause urgeth me to importune your lordships favour a little further . this question is short and yet comprehensive , that we are a free people , is confessed to my hands , to that part of the answer i doe not except , the second part of the question is , whether wee are to be governed by the lawes of england and statutes of force in ireland onely . first though i need not prove it , yet it is cleare we ought to bee so governed , matth. paris . historia maiori fol , . sir iohn davis discovery of ireland fol. . king henry the second held a parliament at lismore in ireland , in which parliament leges & consuetudines angliae fuerunt gratanter acceptae by the representative body of this whole nation , magna charta and other beneficiall statutes of england , are here in the red booke of the exchequer in , and since king iohns time , and so is gervasius tilberiensis of the course and officers of the exchequer , in the white booke of the exchequer of ireland , leges & consuetudines angliae received in ireland by parliament & otherwise this appeares , . iohn . pat membr. . . henr. . pat . memb. . . hen. . pat . membr. . . henr. . claus. membr. . by which words , and by the constant practise of all ages since , this kingdome was governed , and ought to be so by the law of england , as the law of the land , which law as it was alwayes here received , consists of three parts . first , the common-law . secondly , the generall customes of england . thirdly , statutes here received . the common-law that is cleared already , customes as tenant by the curtesie . inne-keepers to be responsible for things within their houses , or the like when we speake of a custome in the law , it must be intended a generall custome over the realme , and no particular custome . and this appeares by the yeare bookes of . henr. . fol. . . henr. . . . particular customes , as gavelki●d , boreugh , english-tenant right , or the like are not to be intended when wee speake generally of custome , and these customes are warranted by the common-law of england , being not contrary to the same , but praeter legem , so there may bee and are particular customes here praeter legem , and yet not contrary to law , as in many corporations and countries , so the wives third of goods is good in england , by the custome of many counties and places , f. n. b. . . edward . . . . edw. . . . edw . f. detinue . therefore it is not contrary to law , that such a custome is here , over all the kingdome , and yet if any man aske the question ; by what law wee are governed , there is no proper answer , other then by the law of england . and for the statutes of england generall statutes were received in this kingdome , some at one time , some at another , and all generall statutes by poynings act , anno . henr. . but no other statute , or new introducting law , untill the same be first received and enacted in parliament in this kingdome , and this may appeare by two declarative statutes the one . henr. . the other . of henr. . the law of england as it is the best humane law , so it is a noble and sociable law , and for the more cleere discerning of the truth and equall administration of iustice it referres many causes to their genuyn and naturall proceedings as maritime causes to the court of admiralty , co. institutes . . stamford . . b. co. . . , constables case , and there the proceeding is by the civill law , co . b. matters beyond the seas are determined in the court of constable and marshall ; cookes institutes . b. matters of latin the law referres to grammarians , com. fol. . matters meerely ecclesiasticall to bee tryed and determined in the proper courts coke . b . co. . . co. . . r. . . matters of merchandize to marchants , . henr. . dy , & . many other cases upon this learning are to be found ; co. . fol. . . . strat. marclads case , yet in all these and the like cases the tryall and determination thereof , are bounded and controuled by the rules of the common-law , they are as rivers which are necessary to run through the land , to helpe the inhabitants thereof , but if they overflow the bankes , the bankes are made higher and stronger to suppresse their violent current , so in all the cases aforesaid , and the like . the common-law hath limitted the proceedings , if they exceede their bounds , witnesse the prohibitions in all our bookes , and the statutes of provision and praemunire , and cases there upon in many ages , by which it is manifest that the supreame , and governing law , are the common-law , common-customes , and statutes of the realme , and the rest , but ministers and servants unto it , brevia remediana are onely by the common-law , mandatoria , may bee in the said other cases , . co. calvins case dy. . so that the answer as to the words ( in the generall ) is short and ought to be positive . as to the courtes of equitie they have beene ancient in england , and the courts of eqnity here , ought to bee guided by the constant proceedings in england in ages past , i meane not , by this or that chancellor but by that naturall and just equity in the courts here observed . this equitie is of absolute necessitie in many cases ( ipsae etenim leges capiunt ut jure regantur ) and therefore is included within the law of the land , and not to bee devided from it , as out of this writing it may bee inferred . as to the case of killing in rebellion to operate an attaynder , if this bee no law in england it cannot bee law here , vide dame-hales case com . . a. . edw. . . fitz dower . cromptons iurisdiction fol. . a. by which it may be urged , that it is an attaynder for that hee prevented the judgement of law by fighting against the crowne , and by his killing therein , which ensued his unlawfull and trayterous act , but i observe to the contrary , the books of . henr. . b. & cook . . . sadlers case . i doe confesse that in england statutes may be obsolete as the statute of vvilliam butler , by which the heire may have an action of wast , rastall . . all the books are contrary , and so is the statute of merton of disparagment as to an action to bee brought for the same , so are some antiquated lawes , . edw. . . . ass . . & . one present & aiding to murder was accessary , but now is principall . hen. . . com. . & . a vicar could not anciently have an action against a parson , . edw. . . finchden the law is now otherwise , and so of an entry upon a feoffee with warranty sit fol. . . in the case of disparagement , give the reason , because that those statutes and lawes were never used , therfore obsolete , our case is nothing like , for life , liberty , and propertie being in debate , but an obsolete law is no law in force . therefore the answer as to that is defective . as to the case of a fellon upon his keeping and terrifying of the people , i conceive the answer is uncertaine and dangerous , if such a fellon raise an armed power against the crowne and terrifie that way no doubt this is treason within the statute of . edw. . or the equity of it , and by the statute of . hen. . cap. . in ireland , statuto hiberniae fol. . but if such terrifying be without raising armes , or by committing the same or the like fellonies , it is no more then the case of purse-takers by force in the high wayes of england , many a man was terrified thereby in salisbury-plaine , and yet no treason ; and if there be no statute here , which is not in england , to make it treason certainly it cannot be treason ; since the conquest , writ of error have been brought for to reverse iudgments given in the kings bench here , in the court of kings bench in england , no course here which is contrary to law , can alter the law of england , therefore , to what purpose is a declaration of iudges here , contrary to the law there . this writ of error is a writ framed in the register and appeares by common experience . i will offer a notable case which i saw adjudged in the kings bench in england , pasc . . iacobi for stafford against stafford in a writ of error for to reverse a iudgment given in the kings bench in ireland when sir vvilliam iones was chiefe iustice here , in an ejectione firme , for that in the declaration there was contained among other things ducentas acras montani . sir vvilliam iones being in england , affirmed the course here , to have been so , and vouched many notable presidents , thereupon an order was conceived that sir iames ley , sir humphry vvinch , and sir iohn denham knights , who were formerly chiefe iustices here should certifie the course , who made report that the course in ireland was and ought to be , in writts originall and iudiciall to be directed by the register , in pleading to be guided by the books of entries , and thereupon the iudgement was reversed , and the chiefe iustice mountague said , that if they did not proceed in ireland according to law , they should learne it , and so i conclude that the answer to the first question , is insufficient . as touching the second question , which is concerning the oath which this iudges doe take , the question is whether the iudges of the land doe take the oath of iudges ? and if so , &c. the answer of the iudges to the first part is , that they confesse they take the oath of iudges , which is specified amongst the statutes in ● . edw. . and . edward . as i said before , and that they may not stay , hinder , or delay the suite of any subject or his judgement or execution there upon , otherwise then according to the law and course of the court , where they sit under pretence of any act of state , proclamation , writ , letter , or direction under the great seale , or privie seale , or privie signet , or letter , or other commandement from the lord lieutenant , lord deputy iustice , iustices or other , chiefe governor of this kingdome , most of which doth appeare by their oath expressed , expressed in the said statutes , and the statute of . edw. . c. . and the statute of . edw. . as to the barons of the exchequer , and as they know no punishments due to the iudges for their deviations and transgressions without other aggravation , so they know no punishment layd downe by any law against them for their deviations and transgressions , in hindering , staying , or delaying of iustice , contrary to their said oath other then what is declared in their said oath , and the statute of . edw. . i conceive the answer is not a full and perfect answer to the question . for where the question is whether the iudges under pretext of any act of state , proclamation , writ , letter or direction under the great , or privie seale , or privie signet , or letter , or other commandement from the lord lieutenant , lord deputie , iustice , or iustices , or other chiefe governor or governors of this kingdome , they may hinder , stay , or delay the suite of any subject , or his judgement , or execution thereupon ; if so , in what cases , and whether , if they doe hinder , stay , or delay such suite , judgement , or execution thereupon , what punishment doe they incurre for their deviations and transgressions therein . to this they answer , that they may not stay , hinder , or delay the suite of any subject , or his judgement , or execution therupon otherwise then according to the law , & course of the court , where they sit , under pretence of any act of state , proclamation , writ , letter , or direction , under the great or privie seale , or privie signet , or letter , or other commandement from the lord lieutenant , lord deputy , iustice , or iustices , or other chiefe governor , or governors of this kingdome , whereas they ought to have expressed the particular of this exception , for by that clause , it is supposed , or may be strongly implyed , that in some cases they may hinder , stay , or delay the suite of any subject , or his judgement , or execution therupon , under pretext of any act of state , proclamation , letter , or direction under the great or privie seale , or privie signet , or other commandement from the lord lieutenant , lord deputy , iustice , iustices , or other chiefe governor , or governors of this kingdome , which they ought to have expressely layd downe , the question being if they may stay , hinder , or delay the suite of any subject upon any such pretext , then to set forth in what cases , which ought to be particularly answered unto . in the next place the question is , if they doe stay , hinder , or delay such suite , judgement , or execution therupon , then to set forth what punishment they doe incurre for their deviation , or transgression therein . vnto this they answer , they know no punishment due to the iudges for their deviation , and transgressions without other aggravation , this i conceive is an implication , that there is a punishment where there is matter of aggravation , and therefore it ought to be expressed what matter of aggravation they intend the same to be . they further say , they know no punishment : layd downe by any law against them , for their deviations or transgressions in hindering , staying or delaying of iustice contrary to their oath , other then what is declared in their said oath , and the statute of ● . edw. . this i conceive not to bee a full answer , in respect the punishment layd downe in that oath , is in a generality ; viz. that the iudges so offending contrary to their oath , are to be at the kings will of body lands and goods , which they should declare , and expresse how farre that punishment extendeth in their bodies , lands , and goods . whether imprisonment of their bodies , or in their lives , and whether in forfeiture of their lands goods , or how else ? the breach of an oath is a very high offence , and the higher it is , that the matter it doth concerne is the greater , and therefore it is much , secundum subjectam materiam . it is to be considered to whom the oath of a iudge is made , and what matter it doth concerne . to the first the oath is made to god , the king and to the common-wealth . for the matter , it is concerning the true and equall administration and distribution of iustice to the people . if the iudge doe offend contrary to his oath , he commits breach of the trust reposed in him by the king , besides the violation of his oath . looke upon trust betweene common persons . a man makes a lease for yeares , the lessee makes a scoffment , this is a forfeyture of his estate by the common-law , by reason of the breach of trust . lessee for life in an action brought against him prayes in ayde of a stranger : this is a forfeyture of his estate . a quid iuris clamat brought against lessee for life , he claymes a fee , which is found against him , this is a forfeyture of his estate . so much for breach of trust . to come unto a false verdict given by a iurie , which is a breach of their oath , they being sworne ad veritatem dicendam . for this false verdict an attaynt lyeth at common law against the petit iury . the judgement at the common-law in an attaynt importeth eight grievous punishments . . quod amittat liberam legem in perpetuum . . quod forisfaciat omnia bona & catalla sua , . quod terrae & tenementa in manus domini regis capiantur , . quod uxores & liberi extradomus suas eijoiantur , . quod domus suae prostrentur , . quod arbores suae extirpentur , . quod prata sua arentur , & quod corpora sua carceri mancipentur . so odious is perjurie in the eye of the common-law . it followeth therefore that the breach of the oath of a iudge , materia considerata , in regard it tends to the subversion of iustice , is an offence of an higher nature deserving a farre greater punishment in his body , lands , and goods , as i conceive . this question is very short and as plaine , it is no more then whether the councell-table be a iudicatorie , in civill causes betweene subject and subject for lands , goods , or chattels , and by what law . the answer is wholly ad aliud . but it is answered fully by the great charter capit . . . henr. . communia placita non sequantur curiam nostram , common-pleas , which are the pleas in question shall not follow the kings court , againe cap. . no freeman shall be taken , imprisoned , put off his freehold , liberties & free customes , &c. other then by the lawfull judgement of his peeres , as by the law of the land . this great assurance in the . chap. of the same statute was granted for the king and his successors to all his people , and was confirmed in thirty parliaments as i said before cooke . . the princes case . by the statute of . edw. . cap. . . edw. . cap. . . edw. ● ; cap. ● . . edw. . cap. & ● . the great charter is againe confirmed , and not onely so but proceedings contrary to the same , before the king or his counsell are declared voyde . the king is to observe and mantayne the law , the iudge by his oath , . edward . ● . is bound to doe right betweene the king and his people , and that right strengthens the kings prerogative , presidents or practise contrary to so many statutes are of no use , in many ages past encroachments were made upon these just liberties , which were alwayes removed by parliaments . yet i must confesse that of all antiquity some pleas have beene held in the kings royall house , as in the court held by the marshall of the kings houshold for things arising within the verge , fleta , lib. . cap. . but when that court exceeds its due bounds , declaratory statutes were alwayes made to meete them as mischiefes in the common-wealth , when they medled with land or the like , as appeares by the statute of articule super chartam . edw. . . r. . cap. . all these statutes my lords , and many more to this purpose are undenyably of force in this kingdome , and none of them can be with impunitie said to be obsolete or antiquated . my lords , they raise another doubt , viz that as the king may grant cognizance of pleas to corporations , or the like , and therefore to the councell-table ; if this neede an answer , i will answer it thus , that a grant of cognizance never was , neyther can it be otherwise , then to proceede per legem terrae , or per judicium parium , & in the same manner as courts doe proceede at common-law , and not upon paper petitions , or summary hearings such cognizance was never granted , the king is at losse by such proceedings , he looseth fines upon originals , he looseth amerciaments , and fines incident to every judgement at common-law , as i said before , i he subject undergoeth an inconvenience . first the law will decline , writs originall will by disuse be forgotten , clerks who should draw them discouraged to learne , legall proceedings out of doores being the foundation of the law , and in stead of regular and orderly proceeding , rudenesse and barbarisme introduced , the subject will loose the benefit of his attaynte and writ of error ; by which the law might relieve him against false verdicts or erroneous judgments he will loose the benefit of his warranty , which might repaire a purchaser , in case his acquired purchase were not good . whereas if a iudge or iuror doe wrong , the remedy is at hand , but against the lord deputy and councell , who will seeke for it ? therefore the countenance of this iudicature in common-pleas , is against the kings prerogative , and the peoples just rights : both which the iudges ought to maintaine , and likewise against the intent of your lordships order . my lords , as in england , the said severall statutes were made to prevent the inconveniences aforesaid , one good statute was made in ireland , . henr. . cap. . irish statut . fol. . which directs matters of interest to be determined in the common-pleas , matters of the crowne in the kings-bench , matters of equity in the chancery : this law , if there were no more , regulates the proceedings in this kingdome . the iudges insist upon the words in the end of that statute , viz. saving the kings prerogative . my lords , this was stood upon at the late great tryall in england , and easily answered , for by the common-law , the king may by his prerogative , sue in any of the foure courts , for his particular interest , although it be contrary to the nature of that court , for he may sue à quare impedit in the kings bench , & the like , yet so as the said suite be bounded by the rules of law , i will demaund a question whether the king may bring à quare impedit in paper , at the councell-board , the kings now atturney , i am confident will answer me , he cannot ▪ the word salvo or saving is in construction of law of a thing in esse or existente , and no creative word , . ass . pla . . and cannot in the kings case be construed to overthrow the law , nor many expresse , and positive acts of parliament . my lords , in all humblenesse and dutie i will and must acknowledge his majesties sacred and lawfull prerogative , whereof the king himselfe is the best expositor , in his answer to the petition of right , poltons stat . fol. . he declares that his prerogative is to defend the peoples libertie , and the peoples libertie strenghtens the kings prerogative , the answer was a kingly answer , and ( more ●ajorum ) this is conformable to the great charter , and to all the statutes before recited . the government of england being the best in the world , was not onely royall , but also politicke , some other princes like cain , nemrod , esau , and the like hunters of men , subverted lawes ; the kings of england maintayned them , and did never assume the power to change or alter the lawes , as appeares by fortescue that grave and learned lord chancellor in king henry the sixts time de laudibus legum angliae cap. . fol. . and in the same booke cap. . fol. . nor to take his peoples goods , nor to lay taxe , nor tallage upon them , other then by their free consent in parliament , this appeares by the booke cases in ● . henr. . fol. . . . the great case of the awlnage of london , and in the case of toll-travers and toll-through . henr. . . henr. . . . henr. . all agreeing , nor to alter the nature of land as by converting land at common-law to gavelkind , or borrough english or e conuerso ; as to the estate , otherwise as to the person of the king ple. com. the lord barclyes case fol. . . yet it is most true that the law of the land gives the king many naturall and great prerogatives , farre beyond all other men , as may appeare in the said case fol. . but not to doe wrong to any subject , com. . the person of the king is too sacred to doe a wrong in the intention of law ; if any wrongs bee done his minister● are authors and not the king ; and the kings just prerogatives , by the kings royall assent in parliament were bounded , limited and qualified , by severall acts of parliament , as if tenant in cap. did alien at common-law without licence , this was a forfeyture of his estate plo : com. case of mines fol. . the statutes of . edw. . cap ▪ . makes this only finable , & the statute of magna charta cap. . takes away the kings prerogative , for cutting woodes where he pleased : many other cases there are upon this learning . by this great iustice and bounty of the kings of england , the kings grew still greater and more permanent . the people became free and wealthy , no king so great as a king of rich & free people . if the councell-table may retaine cognizance of causes cōtrary to the law , & to so many acts of parliament , why may they not avoyde all acts of parliament aswell ? this no man will affirme , nor they intend . my lords , two objections seeme to stand in my way . first , the multitude of presidents countenancing the cognizance of the councell-board in the matter aforesaid , some in ancient times , and of late in great clusters & throngs . secondly , that in book cases it appeares , the iudges of law did take advice in their iudgements with the kings counsell , as ed. . fol. . . ass . placito primo . edw. . fol. . . edw. . fitz . iudgement . . in answer to the first , as for the multitude of presidents ( hinc illae lachrymae ) there is our griefe , i find in our bookes that presidents against law , doe never bind , there is no downe right mischiefe . but a president may be called upon , to beare it up ; iudicandum est legibus non exemplis , cooke , . fol. . mit●ons case cooke . fol. . magdalen colledges case cooke . . fol. . slades case , multitudo errantium non parit errori patrocinium . i answer to the second that in those yeare books of edw. . it is true , that the iudges appealed to the kings councell for advice in law , but who gave the iudgment ? the iudges , and what iudgement ? a legall iudgement , and no paper or arbitrary iudgment . if this objection were materiall , i might answer further , that the councell here may bee understood , the great councell ( viz. ) the parliament ( propter excellentiam ) vide cooke , . . . gregories case . by the stat . of . edw. cap. . . and . edw. . c. . rastall , fol. . parliaments were then to be held once a yeare , the booke of . edw. . fol. . in the case of a formedon ; may well warrant this explanation of those books , the bishops , abbots , earles and barons mentioned in the said books , may be well taken to be the lords house , which might sit by adjournements in those times of frequent parliaments , my lords , i kept you too long upon this question , i will be as short in the next . and so i conclude the answer as to this point is no answer , and whether the matters therein comprized be of dangerous consequence i submit to your lordships . if the chiefe governor and councell of this kingdome cannot heare or determine the causes aforesaid , surely the chiefe governor alone cannot doe it , all i have said to the third i doe apply to this question , together with one president worthy your observation in . edw. . claus. m. . where i have an authenticke coppie ( viz. ) claus. vicessimo quinto eaw primi m. . rex dilecto & fideli suo iohanni vvogan . iusticiario suo hiberniae salutem ; cum intellexerimus quod vos comunia placita quae totis temporibus retroactis , per brevia originalia de cancellaria nostra hiberniae placitari , deberent , & consueverunt , per billas & petitiones vacuas jam de novo coram vobis deduci facitis , & etiam terminari , per quod , feodum sigilli nostri quo utimur in hibernia , & fines pro breuibus dandis ad alia commoda quae nobis inde solent accrescere di versimode subtrabuntur , in nostri & incolarum partium , illarum , damnum non modicum , & gravamen . nolentes igitur hujusmodi novitates fieri per quas nobis damna gravia , poterunt evenire , vobis mandamus quod si ita est , tunc aliqua placita comunia , quae per brevia originalia de cancellaria nostra praedict● de jure & consuetudine , hucusque visitata habent terminari per petitiones & billas coram vobis deduci , placitari , aut terminari de caetero nullatenus praesumatis , per quod vobis imputari debeat aut possit novum , incommodum , in hac parte . teste rege apud shestoniam , xxiij . die martij . convenit cum recorda , vvilliam collet . your lordships , may see that in edward the firsts time the king took notice , first , that the said petitions were void . secondly , that his revenues were thereby impaired . thirdly , that it was against the custome of the land of ireland . fourthly , that it was to the grievance of the people of ireland . fifthly , he comanded iohn vvogan , then chiefe governor , not to presume to deale in the like proceedings thereafter ; i marvaile not a little , wherefore the iudges in our time after so many acts of parliament since . edw. . should make any doubt or question to answer this cleerly . my lords , i humbly desire not to be misconstrued in the debate of this question , my meaning is not to pry into his majesties just prerogatives . qui enim majestatem scrutatur principis , corruet spelndore ejus , the old saying in english is as good , he that hewes a block above his head , the chipps will fall into his eyes . the question warrants no such scrutinie , i may not officiously search into it . the question is onely , whether grants made of monopolies to a subject be good in law , and whether by pretext of such grants the kings free people may loose their goods by seisures , or may be fined , imprisoned , pillored , & papered , &c. those things have been done and acted in many cases , where the monopolites were iudges and parties , in which case if an act of parliament did erect such a iudicatorie , it were void , as against naturall iustice , cooke . . a doctor bonhams case ; i speake to that thing , that odious thing , monopolie , which in law is detestable cooke . . b. the taylors of ipswich case , by which any subject is hindered to exercise his lawfull trade , or lawfully to acquire his living , and the condition of a bond being to restraine any man from his trade , the bond is void in law , hen. . . b. in this case the iudge hull swoare ( par dieu ) if hee who tooke this bond , were present he would fine him to the king , and commit him to prison , by which case i observe , that the consent of the partie cannot make it good ; that a patent of any such monopolies is a grievance against the common wealth , and consequently voyd in law , the case was of cards which is observable cook . . . &c. & darcy & allens case there is a condition tacite or expresse in every grant of the kings , ita quod patriamagis solito non gravetur vel oneretur , vid. fitz. n. br . fol. . cod. ad quod damnum . this learning is so cleare as to monopolies thus stated , that i will dwell no longer upon them , as i hope they may no longer reside among us . the answer is insufficient ; as in the case of a new invention of manufactory or the like ; in such cases a patent may be good they say for certaine yeares , whereas the yeares ought to be competent , ten thousand years are certaine , but not competent , and they who offend are to give damage in an ordinary court of iustice to the patentee , unto which they adde ( or otherwise ) oh , this arbitrary word ) the like arbitrary advice of others ( i feare ) hath occasioned this question . where monopolies were clearly voyde , punishments were inflicted upon . the honest man , and the monopolist escaped , they answer nothing to the losse of goods , heavy fines , mutillation of members , the before recited statutes direct cleare answers to these particulars . my lords , the statute of magna charta cap. . ( quod omnes mercatores tam indigenae quam alienigenae ) have free passage sine omnibus malis tolnetis , & consuetudinibus ex anglia & in anglia , nisiantea publicè prohibiti fuerunt , the subsequent statutes declaring many oppressions and grievances occasioned by restraints in trade and commerce made trade free for victuall and merchandises , and in them nisi , &c. is omitted as the statute of . edw. . c. . . edw. . cap. . . rich. . cap. . . rich. . cap. . . rich. . cap. . these statutes give double damage to the party and the offender to be imprisoned . the statute of . iacob , c. . in england , against monopolies , in the exception of new inventions limits the time to a reasonable number of yeares , viz. fourteene yeares or under , whether the heavie punishments aforesaid , can be in this case especially the private interest of a subject being therein onely or mainly concerned , magna charta cap. . gives me a cleere answer and satisfactory ; nullus liber homo capiatur , imprisonetur , disseifietur vel aliquo modo destruatur , &c. nisi per judicium parium & legem terrae , if this be law or a lawfull statute as no doubt it is , the question is soone answered . my lords , by this time you know , how the innocent was actually punished , in these cases ; now it is time , and not improper to shew how the nocent ought to be punished , who tooke unlawfull monopolies , & seised the subjects goods by violence , imprisoned , fined , mutilated , and destroyed the kings people , and caused all the evils that depended therevpon ; for that , my lords , it is not within my charge , yet i hope it shall not remaine unrepresented by the house of commons , nor unremembred by your lordships in due time . to this the iudges answered nothing , but with a reference to their answer to the third , whereas in truth this comprehends two matters besides of great weight and consideration , first whereas the third question concerneth the decision at counsell-board of matters of interest onely , this question is of matters of punishment , in an extrajudiciall way , secondly this question demands knowledge of the punishment due to such as vote for such extrajudiciall punishments , to these mayne matters there is no answer at all . my lords , the statutes and authorities before mentioned upon the third and fourth questions against the determination at councell-board , or before the chiefe governor in matters of interest , do cleare this businesse , as to the punishments depending upon those interests , although not è converso . and as for such as voted , and acted therein if they besworne iudges of the law , the before recited oath of . edw. . declares enough . his majesty at his coronation is bound by oath to execute justice to his people according to the lawes , this great trust the king commits to his iudges , who take a great oath to discharge this trust , if they fayle therein . sir vvilliam thorp in edward the . time for breaking this oath in poore things , was indicted thus . quia praedictus vvillielmus thorp habuit sacramentum domini regis erga populum suum , ad custodiendum , illud fregit malitiosè , falsé & rebellitèr , quantum in ipso fuit , this extends to a iudge onely who tooke that oath , & habuit leges terrae ad custodiendum . the trust betweene the king and his people is threefold ; first as betweene soveraigne and subject , secondly , as betweene a father and his children , under pater patriae ; thirdly , as betweene husband and wife , this trust is comprehensive of the whole body politicke , and for any magistrate or private person to advise , or contrive the breach of this trust in any part , is of all things in this world the most dangerous ( vae homini illi . ) first , i doe conceive that an act of state or proclamation cannot alter the common-law , nor restrayne the old , nor introduce a new law , and that the same hath no power , or force to bind the goods lands , possessions , or inheritance of the subject , but that the infringing thereof is onely a contempt , which may bee punished in the person of the delinquent , where the proclamation is consonant , and agreeable to the lawes , and statutes of the kingdome , or for the publicke good , and not against law , and not otherwise punishable . i do conceive , that a proclamation is a branch of the kings prerogative , and that the same is usefull and necessary in some cases , where it is not against the law , wherein the publicke weale is interested , or concerned , but that any clause therein , contayning forfeyture of the goods , lands , or inheritance of the subjects , is meerely voyde ; for otherwise this inconvenience will ensue , that proclamations or acts of state , may bee made in all cases , and in all matters to bind the libertie , goods , and lands of the subjects ; and then the courts of iustice that have flourished for so many ages may be shut up , for want of use of the law , or execution thereof , and there is no case where an offence is committed against law , but the law will find out away to punish the delinquent . the king by his proclamation , may inhibit his subject that he shall not goe beyond sea out of this realme without his licence , and this without any writt , or other commandement to his subject . for perchance the king may not finde his subject , or know where he is , and if the subject will goe out of the kings realmes contrary to this proclamation , this is a contempt , and he shall be fined to the king for the same , as saith fitz-herbert , that such a proclamation can prohibit the kings subjects to repayre into england , for england is our mother , and though the sea divide us , that sea is the kings , and therefore it is not pars extra in this sense . it seemes by the lord chauncellor egertons argument upon the case of post nati , that a proclamation cannot binde the goods , lands , or inheritance of the subjects . a provision was made in haec verba , promissum est coram domino rege archiepiscopus , comitibus , & baronibus quod nulla assis ultimae praesentationis de caetero capiatur de ecclesiasticis praebendatis , nec de praebendis , but i doe not finde any forfeyture or penaltie upon the libertie , goods , or lands of him that would bring an assize of daren , presentment for a prebendary . i doe finde that a provision was made in haec verba promissum est à consilio regis quod nullus de potestate regis franciae respondeat in anglia antequam anglici de jure suo in terra regis franciae , &c. yet by that provision no forfeyture upon the lands , or goods of him who sued a frenchman in england at that time . it is true that a custome may bee contrary to the law , and yet allowable , because that it may have a lawfull commencement , and continuall usage hath given it the force of a law , consuetudo ex certa rationabili causa vsitata privat communem legem , but no proclamation or act of state may alter law . for example sake , at common-law a proclamation cannot make lands devisable , which are not devisable by the law , nor alter the course of descent . the king by his letters-patents cannot doe the same , nor grant lands to bee ancient demesne at this day , nor make lands to be descendible according the course of gavelkind or borrough english , unlesse that the custome of the place doth warrant the same , nor gavelkind land to be descendible according the course of law , à fortiori an act of state , or proclamation , which i hold to bee of lesse force then the kings patent under the great seale cannot doe it . and in the case of irish gavelkind , it is not the proclamation , or act of state , that did abolish , or alter it , but the very custome was held to be unreasonable and repugnant to law . if an act of state bee made , that none within the kingdome shall make cards but iohn at stile , this act is voyde , for the king himselfe , cannot grant a patent under his great seale , to any one man for the sole feazance of cards ; so it is of all proclamations or acts of state , that are to the prejudice of trafficke , trade or merchant affaires , or for raysing of monopolies , or against the freedome and libertie of the subjects , or the publicke good , as i said before . also if proclamations , or acts of state may alter the law , or bind the libertie , goods , or lands of the subjects , then will acts of parliaments bee to no purpose , which doe represent the whole body of the kingdome , and are commonly for creating of good and wholesome lawes . therefore i conceive , that all proclamations made against law , are absolutely voyde , and that the infringers thereof ought not to loose , or forfeyte their liberty , goods , or lands . and for the punishment of such iudges that vote herein , i referre to the sixt , they deny to answer to this question . this answer is generall and dangerous withall , it is generall , viz. they know no ordinary rule of law for it , they ought to declare the law against it , the right use of it here they commend , and yet they doe not describe that right use , therefore they commend two things , the one the life of a subject to be left to marshall law in time of peace , the other they leave it likewise discretionary when they describe not the right use , their last resort is to the kings prerogative . i have said before , that lawyers write the king can doe no wrong , and sure i am our king meanes no wrong , the kings of england did never make use of their prerogative to the destruction of the subject , nor to take away his life nor libertie , but by lawfull meanes . i conceive this advise should become the iudges , other advise they find not in their law bookes ; the statute of magna charta cap. . and . edw. . cap. . the petition of right , the third of king charles in full parliament declared , tell them , nay doe convince them , that no man in time of peace can bee executed by marshall law . my lords , i could wish the iudges had timely stood in the right opposition to the drawing of causes proper for the kings courts to an aliud examen , the improper and unlawfull examen thereof on paper petitions , whereby the kings iustice , and courts were most defrauded , whereas an arbitrement being a principall meane to compose differences arising betweene neighbours , and to settle amitie betweene them , without expence , of time or money was a course approved by law , all our bookes are full of this . it is by consent of parties by arbitrators indifferently chosen , bonds for performance thereof are not voyde in law , and iudgements given upon arbitrements , and such bonds in our bookes without question or contradiction to the lawfullnesse of an arbitrement or bond in proper cases , the principall good wrought by them , was the hindering of suites , & debates at law , therfore that exception fals of it selfe , then i am to consider , how far an oath in the particular is punishable , i will not speake of an oath exacted , or tendered , that is not the question , the question is of a voluntary oath , which the arbitrator cannot hinder , i speake not to the commendation of any such oath , nor doe i approve of any oath , other then that which is taken before a magistrate , who derives his authoritie from the king , the fountaine of iustice , but onely how farre this oath is punishable by the late statute , . caroli fol. . a prophane oath is punished by the payment of twelve pence , & no more , vide stat . of : marl. cap . . hen. . viz. nullus de caetero possit distringere liber ' tenentes suos &c. nec jurare faciat libere tenentes suos contra voluntatem suam , quia nullus facere potest sine praecepto domini regis , which statute teacheth us , that an exacted or compulsive oath , is by the kings authority , a voluntarie oath is not reprehended , . edw. . . a. it was not reprehended in the case of an arbitrement , this voluntarie oath is punishable in the star-chamber , as the iudges would affirme , which i conceive to bee against the law : first , for that wee cannot learne any president in england for it , it was but lately introduced here , therefore the house of commons is unsatisfied with the answer to this question , in boyton and leonards case in the star-chamber in ireland , boyton was dismissed in a case to this purpose about the yeare . or . it hath beene the late introduced course of the castle-chamber , and councell-table not to admit the party censured to the reducement of his fine , before hee acknowledged the justnesse of the sentence pronounced against him , and that for divers reasons , first , the course of a court being as ancient , as the court , and standing with law is curiae lex , as appeareth by our bookes , . co. . b. lanes case . long . edw. . . but if it be a course introduced de novo in mans memorie , or a course that is against law , it cannot be said to be lex curiae , for consuetudo licet sit magnae authoritatis nunquam tamen praejudicat manifestae veritati . let us therefore examine the course alleadged here , in both those points , and if it be found to faile in eyther of them it is to be rejected . as to the first , i cannot find or read any president of it untill of late , and the usage of it for a few yeares cannot make it to be cursus curiae which ought to bee a custome used time beyond the memory of man . as to the second , it is confessed by the iudges , that they know no law to warrant this course , let us see then whether it be against law , or standeth with the law , and i conceive it is against law for divers reasons . first , by the common-law , if a judgement be given against a man after a verdict of twelve men , which is the chiefe and cleare proofe which the law looketh upon , or upon a demurrer after solemne argument he shall in the one case have an attainte against the iury , & in the other a writ of error to reverse the judgement ; but in this case by the confession of the justnesse of the sentence all the meanes to reverse the sentence is taken away , and therefore contrary to law , and reason . whereas by the common-law , fines ought to bee moderate secundum quantitatem delicti in reformationem & non in destructionem , of late times , the fines have beene so high in destruction of the party in the castle-chamber , as his whole family and himselfe , if hee did pay the fine should bee driven to begge , and without performance of the sentence hee could not be admitted to reverse the sentence , in respect of all which , howbeit in his conscience he is not guiltie , yet to gaine his libertie , and save part of his estate , hee is necessitated to acknowledge the justnesse of the sentence , so that the confession is extorted from him , and consequently is against law . third reason if the fine were secundum quantitatem delicti , as it ought to be without danger of destruction , the reducement of the fine had not been so necessarie : and therefore no just ground for this confession . lastly , the confession of the party after sentence doth rather blemish the sentence then any way cleare it , for the confession comming after the sentence , which ought to be just in it selfe can adde nothing to it but draw suspition upon it , and in that respect a confession is strayned , the racke used by the course of the civill law in criminall causes , to cleare the conscience of the iudge to proceede to sentence , is intollerable in our common-law . and therefore this course being an innovation against law , & without any reasonable ground ; the said iudges ought in their said answer to declare so much , to the end a course might bee taken for abolishing the same . this answer i will not now draw into question , i could wish the rest were answered no worse . what power have the barons of the court of exchequer to rayse the respite of homage arbitrarily , &c. vnto this they answer , that untill the kings tenant by knights service in capite hath done his homage , the ancient course of the exchequer hath beene , and still is , to issue processe , to distrayne the tenants ad faciendum homagium , or ad faciendum finem pro homagio suo respectuando , upon which processe the sheriffe returnes issues , and if the tenant doe not appeare , and compound with the king to give a fine for respite of homage , then the issues are forfeyted to the king . but if the kings tenant will appeare , the court of the exchequer doth agree with him to respite his homage for a small fine . they say further , that it resteth in the discretion of the court by the rule of the common-law to lay downe a fine for respite of homage , according to the yearely value of the said lands , which i conceive to be very unreasonable and inconvenient , that it should lye in the power of any to assesse a fine for respite of homage , such as to him shall be thought meete in discretion , for if so hee may raise the fine to such a summe , as may exceed the very value of the lands . neyther hath the same beene the ancient course , for it appeares by severall ancient records , and by an order of the court of exchequer made termino pascae . that there should be payed for respiting of homage for every towneship xx . d. irish , and for every mannor xxxx . d. irish , and that such as hold severall houses , acres , or parcels of land , which are not mannors , nor towneship shall pay for everie hundred and twentie acres of land , meadow , and pasture , or of any of them xx . d. irish , and no more , and according to that rate , and proportion if a greater , or lesser number of acres , and for every house without ground iiij . d. irish , and of cottages , or farme houses which bee upon the lands , no fine to bee payed for them solely alone . and i conceive where a man holdeth severall parcels of land of the king by severall homages , that in such case he is to pay but for one respite of homage onely and no more , for that a man is to doe homage but once , and consequently to pay for one respite of homage onely . the late course in the exchequer here hath been contrary , whereas in their answer they goe in the exchequer , according to the statute of primo iacobi cap. . in england , under their favour they goe cleare contrary , for that statute was made in confirmation , and pursuance of former orders in the exchequer : whereas the barons here goe directly contrary to the ancient course and order of the exchequer in this kingdome , more of this in my reason or ground for this question . so i conclude their answer to this is short . my lords , the question contaynes two points , first , whether the subject of this kingdome is censurable for to repayre into england , to appeale to his majesty for redresse of injuries , or for his lawfull occasions ; secondly why , what condition of persons , and by what law ? the first part of the iudges their answer is positive and full , viz. they know no law or statute for such censure ( nor i neyther ) and could wish they had stayed there . in the second part of their answer , they come with an if , viz. unlesse they be prohibited by his majesties writ , proclamation , or command , and make mention of the statute of . rich. . cap. . in england , and . henr. . cap. . in ireland , i will onely speake to the second part of this answer . my lords , the house of commons in the discussion of this point tooke two things into consideration , first what the common-law was in such cases ; secondly , what alteration was made of the common-law by the statute of . rich. . cap. . in england , and . henr. . cap. . in ireland , as to the subjects of ireland . as for the first the register hath a writ framed in the point , viz. the writ de securitate in venienda quod se non divertat ad partes extras sine licentia domini regis , fitz. natur. br . fol. the words of this writ cleares the common-law in the point , it begins with a datum est nobis intelligi , &c. the king being informed that such person or persons in particular doe intend to goe , whether ad partes exteras , viz. foraigne countries , to what purpose , to prosecute matters to the prejudice of the king & his crowne , the king in such a case by his writ , warrant , or command under the great seale , privie seale , privy signet or by proclamation , may command any subject not to depart the kingdome without the kings licence ; this writ is worthy to be observed , for the causes aforesaid therein expressed , the writ extendeth only to particular person or persons , & not to all the subjects of the kingdome , no man can affirme that england is pars extera as to us , ireland is annexed to the crowne of england , and governed by the lawes of england : our question set forth the cause , viz. to appeale to the king for iustice , or to goe to england , for other lawfull causes , whereas the said writ intends practises with foraigne princes to the prejudice of the king and his crowne ; at the common-law , if a subject in contempt of this command went ad partes exteras , his lands , and goods ought to be seized , . & . philip . & mary dy. . b. and yet if the subject went to the parts beyond the seas before any such speciall inhibition , this was not punishable before the statute of . rich. . cap. . as appeares , . & . elizab. dy. . a. so that before the inhibition , the law was indifferent , now the question is at common-law , whether the subject of ireland having no office , can be hindered to appeale or goe to the king for iustice : the king is the fountaine of iustice , and as his power is great to command , so the scepter of his iustice is as great , nay the scepter hath the priority , if any be , for at his coronation , his scepter is on his right side , & his sword on his left side to his iustice he is sworne , therefore if any writ , commandement or proclamation bee obtayned from him , or published contrary to his iustice , it is not the act of the king , but the act of him that misinformed him , then will i adde the other words of the question , viz. or other his lawfull occasions , as i said before in the case of a writ of error in the kings bench of england , or in the parliament of england , which are remedies given by the law , therefore the common-law doth not hinder any man to prosecute those remedies which are given to everie subject by the same a scire facias may be brought by the king in england to repeale a patent under the great seale of ireland of lands in ireland , . henr. . fol. a. an exchange of lands in england for lands in ireland is a good exchange in law , . ass . placit. . . edw. . fol. . tempor . edw. . fitz voucher . what law therefore can prohibit any subject for to attend this scire facias in england , or to make use of his freehold got by exchange . the law being thus , then it was considered , what alteration was wrought by one branch of the statute of rich. . cap. . by which the passage is stopped out of the kingdome ( lords , notable marchants , and the kings souldiers excepted ) i conceive this statute doth not include ireland , i never heard any irishman questioned upon this statute for going into england , nor any englishman for comming into ireland untill the late proclamation by the statute . edw. . c. . in england , all persons which have their heritage or possessions in ireland , may come with their beasts , corne , &c. to and fro , paying the kings dues . the statute of . rich. . did never intend by implication to avoyde the said expresse statute of edw. . betweene the kings two kingdomes , being governed by one law , & in effect the same people , the words of the statute of . rich. . are observable , the principall scope of it is against the exportation of bullion , in the later part there is a clause for licences to be had in particular portes , by which i conceive that the customers of those portes may grant a let passe in such cases . it is therefore to be considered , whether that branch of the said statute of . rich. . was received in ireland , i thinke it is cleare it was not , for by the statute . henr. . cap. . in ireland , all the generall statutes of england were received in ireland with this qualification , viz. such as were for the common and publicke weale , &c. and surely it cannot be for the weale of this kingdome , that the subjects here be stayed from obtayning of iustice , or following other lawfull causes in england . the statute of . henr. . cap. . in ireland , excuseth absentes by the kings command , and imposeth no other penaltie ; so that upon the whole matter , this question is not answered . for so much as they doe answer of this question , the answer is good , for there is no doubt to be made but deaneries are some donative , some elective , and some may be presentative according to the respective foundations . i will only speake of a deane de facto , if a deane bee made a bishop and hath a dispensation decanatus dignitatem in commenda in the retinere , the confirmation of such a deane is good in law . this was the case of evans and acough in the kings bench in england ter. . caroli , where doctor thornbow deane of yorke was made bishop of limmericke with a dispensation to hold in the retinere after his patent , and before consecration it was adjudged his confirmation was good ; and yet if a deane be made a bishop in any part of the world , this is a cession , co. . . a. vvindsors case , davis rep. . . &c. the deane of fernes his case , & . elizab. dy. . the confirmation of a meere laicus being deane is good , though he be after deprived , . eliz. dy. . . & . elizab. dy. . although the deane be after deprived by sentence declaratorie , yet his precedent confirmations are good . so i conceive that a deane , who hath stallum in choro & vocem in capitulo during all the time of his life , and never questioned , and usually confirmed all leases without interruption is good ; and to question all such acts , . . . yeares after , is without president especially in ireland , untill of late yeares , and in this kingdome few or no foundations of bishopricks or deaneries can bee found upon any record , therefore i conceive the iudges ought to answer this part of the question . my lords , i know you cannot forget the grounds i layd before for this question , nor the time nor the occasion of the issuing of quo warrantoes , nor what was done thereupon in the court of exchequer . now remayneth to consider of the answer to this positive question , the answer is too generall , viz the parliament is concerned therein , and so are two other courts of iustice , and likewise the kings prerogative is interested therein , wherefore they cannot answer till the matter come in debate and be argued before them . the consideration of the court of parliament will much conduce to the clearing of this question , co. preface to the fourth reporte , the exposition of lawes ordinarily belongeth to the iudges , but ( in maximis difficillimisque causis ad supremum parliament ' iudicium ) cooke preface to the ninth report , describes that supreame court in this manner ( si vetustatem spectes est antiquissima , si dignitatem , est honoratissima , si jurisdictionem , est capacissima ) of this enough , the learning is too manifest , that it is the supreame court , nay the primitive of all other courts ; to that court belongs the making , altering or regulating of lawes and the correction of all courts and ministers . looke upon the members of it , first the king is the head , who is never so great nor so strong , as in parliament where he sits insconced with the hearts of his people ; the second are all the lords spirituall & temporall ▪ the third the knights , citizens & burgesses , these three doe represent the whole common-wealth . looke upon the causes for which they are called ( circa ardua & urgentia negotia regni ) looke upon the priviledges of it , if any member or members servant thereof bee questioned , or any thing ordered against him , in any other court sitting the parliament , or within forty dayes before or after , all the proceedings are voyde by the lawes and statutes of this realme , the not clearing of this question is against the kings prerogative , which is never in greater splendor or majestie then in parliament , and against the whole common-wealth therein concerned as aforesaid , the king hath foure councels , the first is commune concilium , which is this councell , secondly magnum concilium , which is the councell of his lords ; thirdly the privie councell for matters of estate ; fourthly the iudges of his law , co. institut . . a. then by what law or use can the inferiour of these foure councels question the first supreame and mother councell , i know not , the state of the question considered , which is of burroughs , who anciently and recently sent to the parliament , by the same law , that one member may bee questioned , forty eight members may bee questioned as was done in our case in one day , six such dayes may take away the whole house of commons , and consequently parliaments , especially as this case was , for upon the returne of the first summons foure and twenty corporations were seized , the learning therefore is new , that it should rest in the discretion of the sheriffes , who might make unfaithfull returnes , and of three barons in the exchequer , who have no infallibilitie , to overthrow parliaments , the best constitutions in the world . search hath beene made in the two bookes of entries , in old natura brevium , and in all the yeare bookes that are printed , there is not one president that in any time ever so badde , such à quo-warranto was brought in , co. entries . a à quo-warranto was brought against christopher helden , and others to shew cause , why they claymed such a borrough , &c. which is nothing to our purpose , the quo-warrantoes in the question , and those which were in the exchequer , did admit them borroughs , and yet required them to shew cause why they sent burgesses to the parliament , this is oppositum in objecto , to admit them burgesses , and to question their power to send burgesses , which were formerly , both anciently and recently so admitted in parliament , master littleton , the first booke we reade cleares this question , sectione . there are ancient townes called borroughs , the most ancient townes of england , all cities were borroughs in the beginning , and from them come burgesses to the parliament , so that in effect if an ancient borrough , ergo , they sent burgesses to the parliament ; all these ancient townes in england , did remayne of record in the exchequer , . ass . plac . . in ireland they doe remayne of record in the parliament rolles , the tryall of them is by the record it selfe , and not otherwise ; if a towne send burgesses once or twice , it is title enough to send ever after , . henr. . . so if a peere called once by writ , and once sitting as a peere , co. institut . fol. . b. hee is a baron ever after . in the foure ordinary courts they have priviledge for the meanest of their members , or servants , why not the parliament . it was the custome of the ancient grave iudges to consult with parliaments in causes of difficultie & weight , a parliament was then to be at hand , they did not stay to advise with them in a point which concerned the parliament , so neerely and which was of the greatest weight of any cause that ever was agitated in the kingdome : in our books , & all the entries it is true and cleare , that quo-warrantoes are brought and ought to bee brought against such as clayme priviledges , franchises , royalties , or the like flowers of the crowne : but to question burgesses in this nature is to question the kings prerogative in an high degree ; priviledges take from the king , parliaments adde , and give unto him greatnesse and profit , in parliaments he sits essentially , in other courts not altogether so , but by representation , what greater disservice could bee done the king , then to overthrow parliaments , how shall subsidies bee granted , or the kingdome defended , how shall ardua regni be considered ? oh the barons of the exchequer , i wot will salve all these doubts . i may not forget my lords , how the law of the land , & the whole common-wealth is herein concerned , and upon that i will offer a case or two , if a statute be made wherein the private interest of a subject , or the generall interest of the common-wealth be enacted , the king by his letters-patents cannot dispence with this statute , co. . . a. princes case , though they be with à non obstaute , nor make any grant , non obstante of the common-law , therefore i conclude this question . first , that it is against the kings prerogative , to issue such à quo-warranto , as is here stated . secondly it is against the common-wealth , as destructive of parliaments , and consequently of government . thirdly this is no priviledge but a service done to the king & whole common-wealth , which cannot receive so much as a debate but in parliament . fourthly all the proceedings in the excheqver , touching this parliament were coram non judice , as was already voted in both houses , as for the punishment , we come not to urge your lordships to punish other then with reference to that which i said before , viz. the oath . these two questions have so neere a relation , the one to the other meeting in the center of the castle-chamber , that i will speake to them at once or as to one question . my lords , if that golden meane , and mediocritie which regulated the power of that great court in former times had not beene of late converted and strayned unto that excesse wee saw , these questions had never beene stirred , but many things being extended to their uttermost spheare , or i feare beyond the same enforce mee , although unwillingly and slowly , to looke upon our lawes and just rights . the answer to the sixteenth , viz. whether iurors giving their verdicts according to their conscience , may be punished in the castle-chamber by fines excessive , mutillation of members , &c. i finde in my lord barcklayes case , placit. com. . from the beginning , the usuall tryall at common-law was devided betweene the iudges and the iurors , matters of fact were and are tryable by the iurors , and matters in law by the iudges , the antiquitie of this tryall appeares , glan . fol. . b. in henr. the seconds time , bracton . briton , fol. . a. fortescue , de laudibus legum angliae , fol . & . so much being cleared they being , iurati ad dicendum veritatem , are iudges of the fact , co. . . a. dowmans case , & . &c. strata marcellas case , and infinite other authorities , they are so farre iudges of the fact , that although the partes bee estopped to averre the truth , yet these iudges of the fact shall not be so estopped , because they are upon their oath , co. . . b. goddards case , co. . . a. raw-hins case , . henr. . . a. &c. they are so far iudges of the fact , that they are not to leave any part of the truth of the evidence to the court , co. . . b. chauncellor of oxfords case , nay they may finde releases and other things of their knowledge not given in evidence , . ass . plac . . co. . . b. doctor leyfields case , what is done by iudges , shall not bee tryed by iurors , co . strata marcellas case . ergo è converso ; but if any doubt in law ariseth upon the evidence , there is a proper remedie by bill of exception by the statute of vv. . cap. . which co. dowmans case , fol. . a. saith to be in affirmance of the ancient common-law , as to this point of law , the iudges of the law are iudges of the validitie of the evidence , but under favour not of the truth of the fact , as it is set forth in the answer ; if the iudges of the law doe erre in matter of law , the party grieved hath his remedie by writ of error , but hee is not punishable if practise or misdemeanor doe not appeare , . rich. . fol . . fitz natur. br . . e. . ass . . . henr. . and other bookes by the same reason the iudges of the fact , if they goe according to their conscience as our question is stated , if the iury in this case goe contrary to their evidence , the common-law gives a full remedy by attainte , wherein the judgement is ●ost heavie if the iurors have done amisse as i said before to another question , yet in this action the law gives credit to the verdict before it be falsified , for if a judgement be given upon this verdict and after an attainte is brought , no super sedeas can bee in this writ to hinder the partie who recovered from his execution , . henr. . . b. . henr. . . otherwise in a writ of error . your lordships therefore may see what faith is given to verdicts at common-law , i observe the notable case of . henr. b. where gascoigne answereth the king that would give judgement contrary to his private knowledge . as for the next part of these two questions , it was the late height of punishments , and the drawing of more causes to that court , then in former times , moved this debate , out of the statute of henr. . cap. . concerning this court . i make these observations , first , that the iudges of that court according their discretion may examen great offences , secondly , that they may punish according to the demerits of delinquents after the forme of the statute thereof made , thirdly , in like manner & forme as they should or ought to be punished if they were convict by the due order of the common-law for the first , what discretion this is , we finde in our books , co. . fol. . rookes case , discretion is to proceede within the bounds of law and reason , at common-law a man in a leete is fined but in ten groats for a light bloudshed ; in the castle-chamber a noble-man for an offer of a switch to a person inferior to him , upon provocation perhaps given , was fined in foure thousand pound , committed to long imprisonment , and low acknowledgements were imposed on him . for the second and third observations , if men of quality and ranke were pillored , papered , stigmatized , and fined to their destruction , in cases where if they had beene convicted by due order of law , they could not be so punished by any law or statute , i humbly offer to your lordships sad and grave consideration . and whether these courses be warranted by the said statute of . henr. . cap. . or by any other law or statute of force in this realme , and if all iurors bee brought to the castle-chamber , what shall become of that great and noble tryall , by which all the matters of our law regularly are tryable ; and so i conclude that the answers to these two questions are not satisfactorie . whether in the censures in the castle-chamber , regard be to be had to the words of the great charter , viz. salvo contenemento , &c. i conceive that in the censures in the castle-chamber , regard is to bee had to the words of the great charter , viz. salvo contenemento , &c although in the great charter , and in the statute of vvestminst . . cap. . amerciamentum and misericordia are expressed and not fines or redemptio , because a fine and an amerciament are in the old yeare bookes used promiscuously as synonima , for one and the same thing , and therefore in . edw. . fol. . & . the iurors of the abbot of ramseis leete , being sworne , and refusing to present the articles of the leete , were amerced and there it is resolved , because all did refuse to present , all shall be amerced , but when the same shal be imposed or affeared , shall bee imposed severally upon each of them secundum quantitatem delicti salvo contenemento suo , yet the summe there imposed was revera à fine , and not an amerciament as an amerciament is now taken , and here with agrees , . eliz. dy. . b. in these words ( if the iurors of a leete refuse to present the articles of the leete , according to their oath , the steward shall assesse a fine upon every of them ) and godfries case , . rept ' . fol. . b. . a. secondly if by intendment of law , as the law was conceived at the time of the making of the statutes of magna charta and vvestm. . fines and amerciaments had not beene or taken to be synonyma , the feazors of those acts would not have so carefully provided remedy in case of amerciaments , which were alwayes moderate , and wherein à moderata misericordia did lie for all men , ab enumeratione partium , viz. comites & barones non amercientur & miles & liber homo amercientur & salvo contenemento suo , mercator salva merchandiza sua , villanus salvo vvainagio , clericus salvo laico , feoudo , &c. and have thought of no redresse or moderation of fines , which are more grievous , and of late times infinitely swolne above amerciaments , for in . edw. . fol. . and . edw. . fol. . the amerciament of an earle baron , &c. is but five pounds , and of a duke ten pounds , yet a barons ancient fee or livelyhood consisteth of foure hundred marks land per annum , an earles of foure hundred pounds , a dukes of eight hundred pounds per annum . thirdly , amerciaments imposed upon those that have the administration of iustice executiō of the kings writs , for their commission or omission , contrary to their dutie are out of the letter of magna charta , are indeede fines and to bee imposed and taxed by the iudges , yet are they called misericordiae , because great moderation and mercy must be used in taxing of them , grisleyes case , . rep. fol. . a. b. fourthly , in case fines bee not within these words of magna charta , amercietur salvo contenemento , &c. yet ought they by law to be reasonable and not excessive , for every excesse is against law , excessus in requalibet , jure reprobatur communi , as excessive distresse is prohibited by the common-law . edw. . fol. . so is excessive and outragious ayde , as appeares by the statute of vvestm. . cap. . and by glanv . l. . fol. . an assize lies for often distrayning because it is excessive , and therefore against law an excessive fine , at the will of the lord is an oppression of the people , . henr. . fol. . if tenant in dower have rich villains or tenants at will and shee by excessive taxes or fines make them mendicants , it is waste in the eye of the law , . henr. . fitz. waste . register ' iudiciale , fol. . if the fines of coppy-holders be uncertaine , the lord of the mannor , cannot exact unreasonable and excessive fines , & the unreasonablenesse of the fines shall bee determined by the iudges having respect to the value of the coppy-hold , . rep. fol. . b. the king before the making of magna charta had rationabile reliuum of noblemen and it was not reduced to any certaintie , yet ought it to have beene reasonable and not excessive , co. institut . . b. they say that in a legall construction , the statute of magna charta , in which the words salvo contenemento are mentioned , is onely to be understood of amerciaments and not of fines , yet where great fines are imposed in terrorem , upon the reducements of them , regard is to bee had to the ability of the persons . now whereas they alleage that upon the reducements of fines , regard is to bee had to the estate of persons , i humbly conceive that makes but little , eyther for the ease or securitie of the subject , or the providence or wisedome of the law , for that such reducements are not grounded upon any rule of law , but rest meerely in the kings grace and bountie , which if the prince should withdraw , and leave the subject to the law , in what case he is in , i leave it to your lordships . if there bee no rule in this case , it may rest in the arbitrarie will of foure or five persons in that court to destroy any man , & in their will to reduce as they please , but never to reduce before confession of the sentence which is destructive , wherein perhaps therei 's no infallibilitie , magna charta , cap. . nullus liber homo aliquo modo destruatur , & e. and so i conclude as to this answer . this answer as it is here is sufficient , yet contrary to their answer ; to the first question upon the same point , and so contrary , that both are incompatible . my lords , i am come to the life of man , after that god concluded the worke of the whole world saying to every particular & erant valde bona , to make the worke compleat creavit hominem ad imaginem & similitudinem suam . aristotle in his treatise de natura animalium saith that unum vivens est magis dignum ; which is man , that creature which alone is more perfect and noble then all the world besides . the common-law of the land hath three darlings , life , libertie , and dower , the former recited statutes give protection to three things , to life , estate , and libertie , the life of man is the eldest child admitted to the favour of the law , and the first and chiefe within the protection of these statutes , the other two are but ministers and servants unto it , the tryall of this life by the law and statutes aforesaid is regularly judicium parium , to multiply cases upon so plaine a learning , were but passe time , or wast time , your lordships have other businesse of weight and consequence : the proofe which taketh away this life with infamy , which corrupts the bloud of him and his posterity , defeates the wife and innocent children of their fame and substance , surely ought to be cleare and convincing proofe . the case of an approver is the onely case wee finde in our law , where a person infamous may accuse another for his life , this accusation cannot take away the life of any man , otherwise then by a legall tryall , viz. by a tryall of iurors , who ought to have other good proofe before they finde a subject guilty , or by both , wherein the approver hazards his owne life , which is sacred unto him by the law . this approver is not received in another felony , or treason then he himselfe is guiltie of by confession , of the fact , nor for his reliefe , after hee commits the crime confessed , stamford pleas of the crowne , fol. . . for notorious rebels or malefactors , i finde not any booke in law to give countenance unto such testimony . i finde in the fourth article of the kings printed booke of instructions , that such testimony shall not be pressed when any man stands upon tryall of his life . the iudges doe answer well to one part , viz. that such testimony is not convincing , but they goe further that the testimony of such persons , not condemned concurring with other proofe or apparant circumstance may bee pressed upon the tryall of a man for his life ; the said article in the instructions saith it shall not be pressed at all , no law warrants such pressure . it is quite different from the case of an approver , who confesseth himselfe guiltie , and who is limitted to the crime whereof he is guiltie , a rebell is left at large to prove any crime , nay the reliefe of himselfe . the testimony mentioned in the question differs in all things from the approver , therefore they cannot bee resembled ; the concurrence of such testimonie with other proofes is not materiall , for other proofe will doe the deede without this bad concurrence , and so will a violent presumption , as if two goe safe into a roome , one of them is found stabbed to death the other may suffer , this presumption is inevitable the law of god , the lawes and statutes of the realme protect and preserve the life of man , it were therefore hard to take away by circumstance such a reall and noble essence . this concurrence marrs the evidence , it helps it not . if one gives false testimonie once by the ancient law , his testimonie shall never be received againe , leges canuti regis , lamb . saxons lawss , fol. . p. . much lesse where they are notorious ill doers , this and the reason and ground of this question already opened , will i hope give your lordships satisfaction . for this question , i will state it without any tenure reserved by expresse words as the question is put , whether the reservation of rent , or annuall summe will rayse this to bee a tenure in capite ; i conceive it will not for sundrie reasons . first from the beginning there have beene fayres and markets , and no president , booke-case , or record , to warrant the new opinion in this case before trinitie terme . in the court of wards . secondly the practise of that court was alwayes before to the contrary in the same , and the like cases . thirdly , it is a thing as the question is of new creation , and never in esse before , for this see the bookes of . henr. . . . henr. . . . e. . . . e. . . . henr. . . stamford prerogative . therefore there is no necessitie of a tenure thereof ; upon the conquest it was necessarie that all lands should be held by some tenure for the defence of the kingdome . . the statute of quia emptores terrarum , &c. praerogativa regis speake of feoffator , feoffatores , &c. therefore a tenure i meane this tacite or implyed tenure was originally onely intended of land . . the king may reserve a tenure in all things not mainerable by expresse reservation or covenant , . edw. . . fitz. natur . brevium , . &c. but that is not our case . . heere it is left to construction of law , which is aequissimus iudex , and lookes upon the nature of things , and therefore in cases that include land , or where land may come in liew therof , a tenure may be by implication , as a mesnalty a reversion expectant upon an intayle & the like , . edw. . a. . edw . . fitz. grants , . and divers other bookes . . no tenure can be implyed by reason of a rent , if the rent be not distreynable by some possibility of its owne nature upon the thing granted , as appeares by . henr. . . . henr. . . . ed. . . . henr. . . . . fitz-cessabit . . . the distresse upon other land is the kings meere prerogative like the case of buts co. . . a distresse may be for rent in other land by covenant . . this is no rent because it issueth not out of land . . if the patentee here had no land , there can be no distresse in this case . . this is a meere priviledge , it issueth out of no lands , and participates nothing of the nature of land , all the cases of tenures in our bookes are eyther of land or things arising out of land , or some way or other of the nature of land , or that may result into land , or that land by some possibilitie may result into it ; therefore i humbly conceive that new opinion is not warranted by law or president . these my lords , are in part the things , which satisfied the house of commons in all the matters aforesaid , they are now left to the judgement and iustice of your lordships . qvestions propovnded in parliament and declarations of the law thereupon in parliament . whither the subjects of this kingdome bee a free people , and to be governed onely by the common-lawes of england , and statutes of force in this kingdome . the subjects of this his majesties kingdome of ireland , are a free people , and to be governed onely according to the common-law of england , and statutes made & established by parliament in this kingdome of ireland , and according to the lawfull customes used in the same . vvhither the iudges of this land doe take the oath of iudges , and if so , whether under pretext of any act of state , proclamation , writ , letter or direction under the great or privie seale or privie signet or letter or other commandment from the lord lieutnant , lord deputy , iustice , or other chiefe governor , or governors of this kingdome , they may hinder , stay , or delay the suite of any subject , or his iudgement or execution thereupon , if so , in what cases , and whether if they doe hinder , stay or delay such suite , judgement or execution thereupon , what punishment doe they incurre for their deviation and transgression therein ? that iudges in ireland ought to take the oath of the iustices or iudges declared and established in severall parliaments of force in this kingdome and the said iudges or any of them , by colour , or under pretext of any act of state , or proclamation or under colour , or pretext of any writ , letter , or direction under the great seale , privie seale , or privie signet from the kings most excellent majestie , or by colour or pretext of any letter or commandement from the chiefe governor or governors of this kingdome ought not to hinder or delay the suite of any subject , or his judgement , or execution thereupon and if any letters , writs , or commaunds come from his majestie or any other , or for any other cause to the iustices , or to other deputed to doe the law and right according to the usage of the realme in disturbance of the law , or of the execution of the same , or of right to the parties , the iustices and other aforesaid ought to proceed , and hold their courts , and processes where the pleas and matters bee depending before them , as if no such letters , writs , or commaundments were come to them , and in case any iudge , or iudges , iustice , or iustices bee found in default therein , he or they so found in default ought to incurre and undergoe due punishment according the law , and the former declarations and provisions in parliament in the case made and of force in this kingdome , or as shall be ordered , adjudged , or declared in parliament . and the barons of the exchequer , iustices of assize , and goale-delivery if they be found in default as aforesaid , it is hereby declared that they ought to undergoe the punishment aforesaid . vvhether the kings majesties privie councell eyther with the chiefe governor , or governors of the kingdome , or without him or them , be a place of iudicature , by the common-lawes , and wherein causes betweene party , and party for debts , trespasses , accompts , possession , or title of lands , or any of them , and which of them may bee heard and determined , and of what civill causes they have jurisdiction , and by what law , and of what force is their order or decree , in such cause or any of them ? that the councell-table of this realme eyther with the chiefe governor or governors is no iudicatorie wherein any action reall , personall , popular , or mixt , or any suite in the nature of the said actions or any of them can or ought to bee commenced , heard , or determined , and all proceedings at the councell-table , in any suite in the nature of any of the said actions are voyde ( especially causes particularly provided for ) by expresse acts of parliament of force in this kingdome onely exempted . the like of the chiefe governor above . the proceedings before the chiefe governor , or governors alone in any action , reall , personall , popular , or mixt , or in any suite in the nature of any of the said actions are coram non iudice and voyde . vvhether grants of monopolies be warranted by the law , and of what , and in what cases , and how and where , and by whome are the pretended transgressors against such grants punishable ? and whether by fine , mutillation of members , imprisonment , losse and forfeyture of goods or otherwise and which of them ? all grants of monopolies are contrary to the lawes of this realme , and therefore voyde , and no subject of the said realme ought to bee fined , imprisoned , or otherwise punished for exercising or using their lawfull liberty of a subject , contrary to such grants . in what cases the lord lieutenant , lord deputie , or other chiefe governor or governors of this kingdome and councell may punish by fine , imprisonment , mutillation of members , pillory or otherwise , and whether they may sentence any to such , the same , or the like punishment for infringing the commaunds of or concerning any proclamation , of and concerning monopolies , and what punishment doe they incurre that vote for the same ? the lord lieutenant , lord deputy , or other chiefe governor or governors , and councell of this realme , or any of them , ought not to imprison any of his majesties subjects , but onely in cases where the common-lawes or statutes of the realme doe enable and warrant them so to doe , & they ought not to fine , or to censure any subjects in mutillation of members , standing on the pillory , or other shamefull punishment in any case , at the councell-table , and no subject ought to be imprisoned , fined , or otherwise punished for infringing any commaunds , or proclamation for the support , or countenance of monopolies : and if in any case , any person or persons shall bee committed by the commaund or warrant of the chiefe governor , or governors and privie councell of this realme , or any of them , that in every such case , every such person or persons so committed , restrayned of his , or their libertie , or suffering imprisonment upon demaund , or motion made by his or their councell , or other imployed by him or them for that purpose unto the iudges of the court of kings-bench , or common-pleas , in open court , shall without delay upon any pretence whatsoever , for the ordinarie fees usually payed for the same have forthwith granted unto them , or him a writ or writts of habeas corpus , to be directed generally to all , and every sheriffe , gaoler-minister , officer or other person , in whose custody the party or parties so committed or restrayned shall be , shall at the returne of the said writ , or writs , and according to the commaund thereof upon due and convenient notice thereof given , unto him at the charge of the party or parties who requireth or procureth such writ or writs , and upon securitie by his or their owne bond , or bonds given to pay the charge of carrying backe the prisoner , or prisoners , if hee or they shall bee remanded by the court , to which he or they shal be brought , as in like causes hath beene used , such charges of bringing up and carrying backe the prisoner or prisoners to be alwayes ordered by the court , if any difference shall arise there about , to bring , or cause to be brought the body , or bodies of the said partie , or parties so committed , or restrayned unto & before the iudges , & iustices of the said court from whence the same writ or writs shall issue in open court , & shall then likewise certifie , the true cause of such his , or their detayner , or imprisonment , & and thereupon the court after such returne made , and delivered in open court , shall proceed to examine and determine , whether the cause of such commitment , appearing upon the said returne be just and legall or not , and shall thereupon doe what to justice shall appertayne , eyther by delivering , bayling , or remanding the prisoner , or prisoners . of what force is an act of state , or proclamation in this kingdome to bind the libertie , goods , possessions , or inheritance of the natives thereof , whether they or any of them can alter the common law or the infringers of them , loose their goods , chattels , or leases , or forfeyte the same by infringing any such act of state , proclamation or both , and what punishment doe the sworne iudges of the law , that are privy councellors , incurre that vote for such acts and execution thereof ? an act of state , or proclamation in this kingdom , cannot bind the libertie , inheritance , possession , or goods of the subjects of the said kingdome , nor alter the common-law , and the infringers of any such act of state , or proclamation ought not to forfeyte lands , leases , goods , or chatels for the infringing of any such act of state or proclamation . and the iudges of the law who doe vote for such acts of state , or proclamation are punishable , as breakers and violaters of their oathes of iudges . are the subjects of this kingdome , subject to the marshall law , & whether any man in time of peace , no enemie being in the field , with banner displaid , can be sentenced to death , if so , by whom , and in what causes ? if not , what punishment doe they incurre , that in time of peace execute marshall law ? no subject of this kingdome ought to bee sentenced to death , or executed by marshall-law in time of peace , and if any subject be so sentenced , or executed by marshall-law , in time of peace , the authors & actors of any such sentence or execution , are punishable by the law of the land for their so doing , as doers of their owne wrong , and contrarie to the said law of the land . vvhether voluntary oathes taken freely before arbitrators for affirmance , or disaffirmance of any thing , or for the true performance of any thing be punishable in the castle-chamber , or any other court , & why or wherfore ? no man ought to bee punished in the castle-chamber , or in any other court , for taking a voluntary oath before arbitrators for affirmance or disaffirmance of any thing , or the true performance of any thing in civill causes , nor are the arbitrators before whom such voluntary oathes shall be taken punishable . vvhy and by what law , or by what rule of policie is it that none is admitted to reducement of fines , and other penalty in the castle-chamber or councell-table untill he confesse the offence for which he is censured ; when as revera hee might bee innocent thereof , though suborned proofes , or circumstance might induce a censure ? by the lawes and statutes of the realme , no man is bound , or ought to be compelled to acknowledg the offence layd to his charge , or the justnesse of any censure past against him in the castle-chamber , or at the councell-table , nor ought to bee detayned in prison , or abridged of his liberty , or the reducement of his fine , stayed or delayed , untill he doe acknowledge such offence or the iustnesse of such censure . and it is further declared that no such inforced or wrested cōfession , or acknowledgment can or ought to debarre , or hinder any subject from his bill of reversall , or review of any sentence or decree past , or conceived against him in the castle-chamber , or in any other court . vvhether the iudges of the kings-bench , or any other iudge of gaole-delivery , or of any other court , and by what law , doe or can deny the copies of indictments of felony or treason , to the parties accused contrary to the law . the iudges of the kings-bench , or iustices of gaole-delivery , or the iudges of any other court , ought not to deny copies of indictments of felonies , or treason to the parties indicted . vvhat power hath the barons of the court of exchequer , to rayse the respite of homage arbitrarily , to what rate they please , to what value they may rayse it , by what law they may distinguish betweene the respite of homage upon the diversitie of the true value of the fees , when as escuage is the same for great and small fees and are proportionable by parliament ? the barons of the exchequer ought not to rayse the respite of homage above the usuall rates appearing in and by the course and presidents of that court continued untill the yeare of our lord god , . and the raysing thereof since that time was arbitrary and against the law , and the barons of the exchequer , ought not to distinguish between the respite of homage upon any diversity of the true values of the knights fees . vvhether it be censurable in the subjects of this kingdome to repaire into england to appeale to his majesty for redresse of injuries , or for other lawfull occasions ; if so , why , & what condition of persons and by what law ? the subjects of this kingdome may lawfully repayre into england , to appeale to his majesty for redresse of injuries , or for other their lawful occasions ; & for their so doing , ought not to be punished or questioned upon the statute of . of k. rich. the . nor by any other law , or statute of force in this kingdome ( eminent officers & ministers of state , commanders & souldiers of his majesties army . the iudges and ministers of his majesties courts of iustice , and of his highnesse revenue and customes , whose attendance is necessary requisite , by the lawes & statutes of the realme only excepted . ) vvhether deanes or other dignitaries of cathedrall churches be properly and de mero jure donatiue by the king , and not elective or collative ; if so , why , and by what law , and whether the confirmation of a deane de facto of the bishops grant be good and vallid in law , or no ? if not , by what law ? deaneries or other ecclesiasticall dignities of this realme , are not de mero jure donative , but some are donative , and some elective , and some are collative , according to their respective foundations , and the confirmation of the bishops grant by a deane de facto having actually stallum in choro , & vocem in capitulo , together with the chapter is good in law . vvhether the issuing of quo-warrantoes , out of the kings-bench , or exchequer against borroughs , that anciently and recently sent burgesses to the parliament to shew cause why they sent burgesses to the parliament , be legall ? if not what punishment ought to be inflicted on those that are or hath beene the occasioners , procurers , and iudges of , and in such quo-warrantoes ? the issuing of quo-warrantoes out of the court of kings-bench , court of exchequer , or any other court against boroughs , that anciently or recently sent burgesses to the parliament , to shew cause why they sent burgesses to the parliament , and all the proceedings therein are , coram non iudice , illegal and voyde , and the right of sending burgesses to the parliament is questionable in parliament onely , and the occasioners , procurers , and iudges in such quo-warrantoes and proceedings are punishable as in parliament shall be thought consonant to law and iustice . by what law are iurors , that give verdict according their conscience , and are the sole iudges of the fact , censured in the castle-chamber in great fines , and sometimes pillored with losse of eares , & boared through the tongue , and marked sometimes in the forehead with a hot iron , and other like infamous punishment ? iurors are the sole iudges of the matter in fact , and they ought not for giving their verdict to bee bound over to the court of castle-chamber , by the iudge or iudges , before whom the verdict was , or shall be given . by what law are men censurable in the castle-chamber , with the mutillation of members , or any other brand of infamy , and in what cases , and what punishment in each case there is due , without respect of the qualitie of the person or persons ? no man ought to bee censured in the castle-chamber , in the mutillation of members , or any other brand of infamy , otherwise , or in other cases then is expressely limitted by the statutes of this realme in such cases provided ? vvhether in the censures in the castle-chamber , regard be to be had , to the words of the great charter , viz. salvo contenemento , &c. in the censures of the castle-chamber , especially regard ought to bee had to the words of the great charter , viz. salvo contenemento , &c. vvhether if one that steales a sheepe , or commits any other felony , and after slieth the course of iustice , or lieth in woods or mountaines upon his keeping , be a traytor , if not , whether a proclamation can make him so . a felon who flies the course of iustice , & lieth in woods , mountaines , or elsewhere upon his keeping is no traytor , and a proclamation cannot make him a traytor . vvhether the testimonie or evidence of rebels , traytors , protected theeves , or other infamous persons bee good evidence in law , to be pressed upon the tryals of men for their lifes , or whether the iudges , or iurors ought to be iudge of the matter in fact ? the testimony of convicted , or protected rebels , traytors , or fellons , is no sufficient evidence in law upon the tryall of any person for his life , and the credit of the testimony of persons accused or impeached , and not convicted of felony or treason , ought to be left to the iury who are sole iudges of the truth , and validity of the said testimony . by what law are fayres and markets to bee held in capite , when no other expresse tenure bee mentioned , in his majesties letters-patents , or grants of the same fayres and markets , although the rent or yearely summe be reserved thereout ? the king grants lands to be held in free and common-soccage , as of a castle , or mannor by letters-patents under the great seale , and by the same letters-patents , or by other letters-patents , grants a fayre and market , reserving a yearly rent or summe without expressing any tenure as to the said fayre or market , the said fayre or market , is not held by knights-service in capite or otherwise in capite . copia vera , ex ' per phil : fern : cleric . parl. com. finis . faults escaped . pag. . l. . insteed of causes reade cases , p. . l. . for the , reade their , p. . l. . for wages , reade wayes , p. . l. . for best , reade least , p. , lin , . for rottoman , reade hotoman , ibid. l. . for master sleyden , say selden , p . l. . & is omitted before that p. . l. . for strike , r. stick , p. . l. , for primes case say princes case , p. , l , ultima for strata marclad , say strata marcella . p. . l , vlt. for here , say there . p , , l , , for sit , say litt. ibid. l , , for give say gives . p , , l , , for writ , say writs . p , , l , . for this , the , p , ● , l , . for as say or . p , . for willielmi collet ▪ say willielmus collet . p. , l , , for monopolites , monopolists . p , , l , , for cod. say c. p , , l , , for promissum est , say provisum est , p , , l , , for promissum , say provisum p , , l , , for the say this . p , ▪ l. , for thornbow , say thorn borow , pag , . l. . for placit. com. say plo. com. ibid. l , ▪ for partes say parties , p , , l , , non is omitted , p , , l , vltim , for relivuum , say relevium . notes, typically marginal, from the original text notes for div a e- preamble to the questions . . q. . rat . . q. . rat . . & . q. . & . ratio . . . . q. . . . rat . . q. . rat . . q. . rat . . quest . . ratio . . quest . . ratio . . q. . rat . the second remembrancers certificate . . iunii , . quest . . ratio . . quest . . ratio . . q. . rat . . quest . . ratio . . quest . . ratio . . q. . rat . . quest . . rat . . que . . rat . . quest . . rat . hopperus de vera iuris prudentia . pag. . lord chancel . egerton de postnat . fol. . ● . ratio . poltons stat . fol. . atchi . tu●ris lond. cambd. anals hibern . . ratio . . ratio . . ratio . . ratio . . ratio . . ratio . . ratio . . ratio . genes . c. . vers. . &c. . vers. . . quest . . answer archi. turris london . stat. hiberniae . . a. . quest . . answe . . ed. . . . hen. . . . hen. . . . quest . . answ. sir thomas tempest knight . . object . . object . . resp. . resp. ad . object . . quest . answer archiv . turris londin . de comunibus placitis per billas coram iusticiariis hiberniae nequaquam terminandis . . quest . . answer . quest . . answer ▪ . quest . . answer ▪ natura br. fol. . in se briefe de securitate inveniend . quod non se divertat ad partes extras pars extra cannot be intended the kings dominions . fol. . & . natura br. . . hen. . fitz her. darien presentment . ● . hen. . fitz her. dower . . . henr. , . . hen. . . . edw. . . . co. . . quest . . answer ▪ . quest . . answer . quest . . answ . . quest . . answ . . quest . . answ . vide . henr. . . a. prescription to impound cattle untill amends be done according to his will , not good . this appeares by severall records in hen. . & hen. ▪ time in the secōd remembrancers office in ireland . . hen. ▪ b fealty ▪ & homage . . quest . . answ . quest . . answ . vide . & . phil. & ma 〈…〉 e . b. . quest . . answ . co. inst. . stat. hib. . edw. . cap. . co. . . bozoons case . . quest . . answ . : quest . . answ . verba statut. lo. visc . clanmoris . . quest . . answ . . quest . . answ . . quest . answ . gen. cap. . v. . gen cap. . v. . . quest . . answ . . edw. . . . h. . . . hen. . . co. . ● co. . . question . declaraon . question . declaraon . question . declaraon . questio● . declaration . question . declaraon . question . declaration . question . declaration . question . declaration . question . declaration . question . declaration . question . declaration . question . declaration . question . declaration . question . declaration . question . declaration . question . declaraon . question . declaraon . question . declaration . question . declaration . question . declaration . question . declaiation . the reverse or back-face of the english janus to-wit, all that is met with in story concerning the common and statute-law of english britanny, from the first memoirs of the two nations, to the decease of king henry ii. set down and tackt together succinctly by way of narrative : designed, devoted and dedicated to the most illustrious the earl of salisbury / written in latin by john selden ... ; and rendred into english by redman westcot, gent. jani anglorum facies altera. english selden, john, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the reverse or back-face of the english janus to-wit, all that is met with in story concerning the common and statute-law of english britanny, from the first memoirs of the two nations, to the decease of king henry ii. set down and tackt together succinctly by way of narrative : designed, devoted and dedicated to the most illustrious the earl of salisbury / written in latin by john selden ... ; and rendred into english by redman westcot, gent. jani anglorum facies altera. english selden, john, - . littleton, adam, - . white, robert, - . [ ], , [ ] p., [ ] leaf of plates : port. printed for thomas basset, and richard chiswell, london : mdclxxxii [ ] translation of the author's jani anglorum facies altera. running title: janus anglorum, or, the english janus. each part has special t.p. and separate paging. engraved frontispiece portrait of the author signed: r: white sculpsit. error in paging: p. misnumbered . errata: p. 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ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- england -- history and criticism. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion johannes selden●s . armig. r. white sculpsit the reverse or back-face of the english janus . to-wit , all that is met with in story concerning the common and statute-law of english britanny , from the first memoirs of the two nations , to the decease of king henry ii. set down and tackt together succinctly by way of narrative . designed , devoted and dedicated to the most illustrious the earl of salisbury . written in latin by john selden of salvinton , student of the inner-temple in london ; and rendred into english by redman westcot , gent. haec facies populum spectat ; at illa larem . london , printed for thomas basset , and richard chiswell . mdclxxxii . to the right honourable and truly noble lord , robert earl of salisbury , viscount cranborn , baron cecil of essenden , knight of the illustrious order of the garter , lord high treasurer of england , master of the court of wards , and privy counsellor to his most excellent majesty , james , king of great britain , france and ireland , heartily according to his high desert , i devote and dedicate , and as it were with consecrated flowr , and crackling grain of salt , i offer up in sacrifice . i am not in condition to do it with a costly victim , or a full censer . great sir , deign with favour to receive these scraps of collection ; relating intirely , what they are , and as far as the present age may be supposed to be concerned in ancient stories and customes , to the english-british state and government ; and so far forth to your most honoured name . which name of yours , whilest i , one of the lowermost bench , do with dazzled eye-sight look upon ( most noble lord , and great support of your country ) i devoutly lay down upon its altar this small earnest and pledge of my obedience and duty . the translator's preface to the reader . reader , thou canst not be such a stranger to thy own countrey , as to need my commendation of the learned , worthy and famous author of these following sheets ; or that i should tell thee , what a scholar , a philologer , a humanist , a linguist , a lawyer , a critick , an antiquary , and ( which proves him an absolute master of all these and many other knowledges ) what a writer , the great selden was . since it is liberally acknowledged by every body , that knows any thing ( not only at home , but abroad also among foreigners ) that europe seldom hath brought forth his fellow for exquisite endowments of nature , attainments of study , and accomplishments of ingenuity , sagacity and industry . and indeed , to save me the labour of saying any more concerning this non-pareil in all kinds of learning , his own works , which are now under a review , and will e're long be made publick in several volumes , will sufficiently speak his character , and be a more prevailing argument to indear him to thy good opinion and firm acquaintance , than mine or any other words can . my business now is only to give thee some account of the author's design in this little treatise , and of those measures i took in translating him , that is , in restoring him to his own native language ; though his great genius had made the latin and several other tongues , as natural and familiar to himself , as the english was . to speak first of the author , i do take this piece to have been one of his first essays , if not the very first ; wherein he launched into the world , and did not so much try the judgement , as deservedly gain the approbation of the learned : which was certainly one reason , why , though the whole matter of the book be of an english complexion and concern , yet he thought fit to put it forth in a latin dress . that this was his first specimen , or at least one of the first , i gather from the time of his writing it , viz. in the six and twentieth year of his age ; when i suppose he was not of any very long standing in the temple ; i mean , in all likelihood , whilst he was on this side the bar. for having fraught himself with all kind of learning , which the university could afford him ( which could be , we must imagine , no small time neither ; as i may be allowed to guess from that passage of his in this book , where he so affectionately recognizeth his duty and gratitude to his dear mother oxford ; who , if she had no other antiquity to boast of , is and ever will be famous for this her scholar , our great antiquary ; who hath also such a monument to be seen in her publick library , as will make her glory and his memory ever to flourish ) i say , having after some competent time taken leave of academical institutions , and being now engaged into the study of law , he thought he could not do his profession a better service , than by looking back into former times , and making a faithful collection of what might be pertinent and useful , to bring down , along through all changes and vicissitudes of state , the light and strength , the evidence and reputation of old institutes and precedents to our present establishments under our gracious and happy monarchy . may it , as it is in its constitution to the english people gracious ; so be ever in its success to it self , and consequently to us all , happy ! here then thou wilt find the rights of government through all ages , so far as our histories will help us ; here thou wilt see , from the first , our king setled in his just power , even in his ecclesiastical surisdiction against the papal usurpation ; one shrewd instance whereof is , the forbidding appeals to the pope , at such a time when the popish religion was at its zenith in this island ; that is , when people in all probability were most ignorant . here thou wilt easily be brought to acknowledge the antiquity and usefulness of parliaments ( though under other names till after the conquest ) when all the barons , that is , as that title did at first import , all lords of mannors , all men of estate assembled together for the determination of publick affairs : which usage , because it produced too numerous and cumbersome a confluence , was afterwards for better convenience retrenched into a popular election by the kings writ to chuse some of the chiefest to act for all the rest . and sure enough , if we in duty keep up the royal prerogative , and our kings , as ever they have done , and ever , i hope , will , in grace and clemency oblige the peoples consent in their representatives ; we shall alwayes have such laws , such a government , such a correspondence betwixt prince and subjects , as must ( according to the rules of humane prudence , adding our piety to it ) make this kingdom of great britanny ( maugre the malice of the devil and his agents whatever , jesuits or fanaticks ) a flourishing and impregnable kingdom . having said this in general of the author's design , i shall not descend to particulars , which i leave to thy self , reader , to find out , in the perusal , that may be of good use and great consequence to the publick ; but fearing , thou maist think i am so much taken up with the author , that i have forgot my self , i have two or three words to speak of that sorry subject , before i leave thee . as to the translator ; i confess , it is no great credit for any one to appear in that figure ; a remark , which i have learn't from one , who hath translated another excellent piece of this noble author , ( noble i call him , sith nobility is rais'd by parts and merits , no less than continued by birth and descent ) it was his mare clausum , wherein he , i spoke of , hath acquitted himself very well , abating for his villanous dedication to the rump-parliament , which was then setting up for a republick ; in which dedication of his , he hath vilely and like himself ( i speak in charity , as to his interest , i mean , not his judgement or conscience at least , if there were any ) aspersed the royal family with weakness and collusion , to have lower'd the british renown . i am bid by him , who puts this into thy hands , to tell thee , that when he was embark'd into this employ ; whatever it was , upon the coasting of it over , he was surprized to find , he had undertaken such a difficult and hazardous voyage , and did presently conclude , that none but a selden ( that is , a person of omnifarious reading ) was fit to be a selden's interpreter . for no other person , but one so qualified , can be master of his sense , master of his expression . his ordinary style , where he delivers himself plainest , is as to the matter of it , so full of historical and poetical allusions , and as to the method ( and hath that of crabbed in it besides ) so intricate and perplex , that he seems , even where he pretends to teach and instruct , to have intended only to amuse and confound the reader . in very deed , it is such a style , as became a learned antiquary , which is to be antique and oracular ; that one would think , the very paper , he wrote upon , was made of the sibyll's old-worn sheets , and that his meaning could not be fisht out without the assistance of a delian diver . however the translator ( though so much inferiour to the undertaking , as to be almost unacquainted with some considerable parts of it ) did presume ( whether rightly or no , must be left to thy judgement ) that he was not utterly unfurnished with those skills and helps , which might make the work intelligible and acceptable even to plebeians . for though it was at first designed by the excellent author in his latin for such as were meerly lawyers and scholars ( they must be both , that mean to understand it as he wrote it ) yet now it being done into english , it was to be calculated to the meridian of common capacities and vulgar understandings . which end he hath , he hopes , in some good measure answered ; and in order to which end , he hath , to supply the defects of his translation , at the end of the book subjoyned some annotations , which may serve partly to clear the author's meaning , and partly to vindicate himself in the interpretation . he did think once to have affixt those annotations to the places they belong to ; but upon second and better thoughts , he consider'd , that the authors quotations would be enow of themselves to charge the margin with , and a further superfoetation would but cloy and surbate the reader ; though in the body of the work , there are up and down many explanations inserted , to excuse him from the trouble of having recourse to those notes , which are added out of pure necessity , and not from any vanity of ostentation , since the whole , if it had its due , might seem to require a perpetual comment . in the main , which is enough for a translator , be his author what he will , he doth assure thee , that the meanest subject of england may now read one of her greatest champions and writers ( for learned pens sometimes do as good and as great service as valiant swords do ) so understandingly , that he may edifie and learn , what duty and deference he ought to have for the best of governments . and now , reader , excuse me in a digression , and do not impute it as a levity to me , that i follow my grave author . it is my duty so to do ; it is my happiness , if i can : he doth not despair , now he appears in english , to have female-readers too , to court him so far at least as to peruse his translation , who hath so highly courted them with noble caresses in that chapter , wherein he hath so learnedly pleaded the excellencies and rights of that angelical sex , ( if angels have any sex ) to the abashment and overthrow of the salick law. to what purpose did the author write so much in their commendation , if they were not to know it ? which , if the poor translator hath any obligations upon the sex , he hopes they will own this as an addition : not to mention that other chapter of his , where , like a gentleman and a lawyer both , he maintains that freedom peculiar to our english ladies , and which with lawyers leave , i may call the courtesie of england , in receiving of salutes , against the censure of rudeness on the one hand , and the suspicion of wantonness on the other . though i must confess also , that some of his citations in that defence , are so free , that i thought fit rather to leave them as i found them , than by putting them into english , to expose the modesty of the sex. i have no more to say , reader , but to beg thy excuse , for any thing , wherein i may appear to have come short of the weighty and abstruse senses of our great and worthy author , and that i may detain thee no longer from his conversation , to bid thee farewell . the author's preface to the reader . and that the tutelar or guardian of my threshold may not entertain thee with unlucky or ill-boding terms , he doth freely bespeak thee health and greeting , whoever thou art , dear reader . moreover , he is in the humour to declare both the occasion of drawing the first furrow of this enterprize , and also the model and frame of the whole work , what it is , finished and compleated . it is a long while ago , considering how young a man i am , since from the first i have made it my hearty wish , that the ancient original and procedure of our civil law might more fairly and clearly be made out ; as far , i mean , as the thing will bear , and as what store we have of publick records affords assistance . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for several men with several things are pleas'd , as said archilochus of old ; and i do own for my self , what seneca the declaimer saith , that i take pleasure in going back to studies of antiquity , and in looking behind me to our grand-sires better times . which , to say truth , they who do too much , slight , ardua dum metuunt , amittunt vera viai . that is , whilst lofty passes they do fear , through sloth they lose the certain tracks and paths of troth . and , so may the muses alway favour me , they are such things as are — anteiqua , sepolta , vetusta , quai faciunt mores veterésque novosque tenentem moltarum veterum legum , divômque hominumque prudentem . — as saith another old latin poet ; that is , such stories as are antique , buried in rubbish , old and musty , which make one verst in customs old and new , and of laws , gods and men giving a view , render the careful student skill'd and trusty . some spare hours have been spent by me in reading over historians , chronologers , antiquaries , foreigners and our own countrey-men , those of ancient date and the more polite of the modern sort : those especially who seem'd to make out the quickest course to that goal and design i spoke of . i have carefully cull'd out whatsoever i met with , that lookt like the orders and decisions of praetors or lord chief justices , and whatsoever concerns the civil or prophane law. ( prophane i call that , which is not held by the religion of the church ; as ●●xtus pompeius hath taught me . ) i did judge that there were a great many things in those writers worth the knowing , and which might deserve to be digested into a kind of volume according to order of chronology , i did in the first place advise , and took that special order with my self , that as to this undertaking , i might with the greater ease have my attendants ready at hand to wait upon my studies . i went about to 〈…〉 and cement , such as it is , ( i. e. some method and connexion ) to the scattered and disjointed bulk , and i brought it to a conclusion ; and assoon as it came into my mind to publish it , i endeavoured according to that meanness , which it appears in , to finish it ( that i may make use of a mathematick term ) with its complement . i have set the model and frame upon a sure account ( not upon mine own credit neither , who am too apt to take on trust things suspected ) and in a compendious way : i have writ my self compendiously and succinctly ; i have transcribed out of others faithfully . i do on set purpose vouch the credit , i go upon , to be none of mine , but the authors , i have taken out of , that i may not be accused of false dealing by unskilful or careless readers . i have applyed my self not only to the meaning of the writers , or to their historical account , but even to the very words and syllables , which they spoke , and have inserted them printed in a different character ; those , i confess , unless it be from them of the middle age , many times sufficiently barbarous , that miserably want polishing , such as criticks cannot away with , and do very well agree with the records and reports of law , which we converse with . however i would not have thee disdain in the mean time brimful and wholsome draughts of liquor , because the bowl was not made in a potters shop of colias a place in athens , or in cold winter to slight a garment which is not made of attick wooll ; as plutarch hath admonished the hearers of philosophy . let young ladies speak finically with their golden flower-amours , and let them , who have store and leave at once , court the graces of words and beauties of expression . 't is true , the care of exact speaking , is a thing befits the muses , yet how the most abstruse mysteries even of the highest urania , of divinity it self , are laid open without it , the thomists , the scotists , and what other sects and parties of school-men there are , know well enough . and there are some others also , that think they know ; i mean the inquirers into heavenly calculations ( astrologers ) and the weather-wise-men ( almanack-makers ) who in good deed for the most part rely too much upon the trifling stories of their masters . now they , and not without good reason , have preferred the arab writers barbarously translated , and slovenly bonatus before julius firmicus and modern pontanus , as spruce as they are . these two may rather be termed grammarians , than astrologers . nor do aristotle's crabbed lectures of natural p●●losophy discourage interpreters or procure to themselves any discredit , ●y reason of the affected obscurity of speech , they are delivered in : and as to neatness of poetry , apollo himself hath been out-done by sappho , homer , hesiod . though the matter doth often surpass the workmanship ; yet who is there is so rigid or so fond a censurer , as to disparage and debase the matter upon the account of the workmanship ? which i would not have be said only of those passages , which i have brought into this piece out of those fore-mentioned authors , but also of the whole body of our common-law . i have , i hope , not unluckily begun with the very first inhabitants of this isle , as far as we can come to the knowledge of them . those authors , whom i have followed in the original of story , i have , as it was meet , set down and remark'd , adding the judgement and censure of the learned . afterward , besides caesar and tacitus there are but few that afford us any help , and that ●ut in few things too . for the name of brittany was known but of late to the greeks , but of late to the romans ; and the britans were truly for a long while divided from all the world besides . but among ●●reigners the latter ages have enquired after them . i speak of strabo , pliny , ptolomy , others ; and a certain writer of asia , marcianus heracl●otes , not y●t , that i know of , turned into latin , saith thus , albion the brittish isle hath in it thirty three nations , fifty nine remarkable cities ; and then he sub●●us other things concerning the number of rivers , promontories , havens and creeks or bays . i have stretched out this piece to the death of king henry the son of mawd the empress by jeoffrey the count of anger 's in france . in whose time , or near thereabout , are the first beginnings of our law , as our lawyers now account . there come in by the way richard called coeur de lion and king john ; but there is scarce any thing in that interim to our purpose . i have on purpose passed by mr. lambard's archaeonomia ( or antiquites of law ) without medling with it at all , only when some obvious accasion did sometimes suggest it for the explaining of what is set down by us . i have divided the whole into two books ; the first closes with the saxons ; the second begins with the norman conquest , the most famous aera or date of the english government in the reckonings of time . but however to refer the original of our english laws to that conquest ( as some make bold to do ) is a huge mistake ; forasmuch as they are of a far more ancient date . for it is a remark amongst statesmen , that new acquired empires , do run some hazard by attempting to make new laws : and the norman did warily provide against this danger , by bestowing upon the yielding conquered nation the requital of their ancient law : a requital , i say , but more , as it should seem , for shew than use ; and rather to curry favour with the people at the present , than in good deed for the advantage of the english name . wherein he in some measure followed well near the practice of alaricus , who having conquered the romans , and finding that they took it in dudgeon to be bound up by the laws of the goths , though in other things they were compliant enough , restored to them the roman laws , but by sly interpretations against the sense and meaning of the roman laws he drew these laws back again to the gothish . for the times on this side the normans entrance , are so full of new laws , especially such as belong to the right of tenancy or vassalage ; though other laws have been carefully enough kept up from the time of the saxons , and perhaps from an earlier date . for neither did the gliding decrees of that blazing-star , which appeared in the easter of that year , so well known for this victory , prognosticate , as the change of the kingdom ( a thing which astrologers affirm ) so the abolition of our laws ; and yet in some sense peradventure an alteration of them both ; at that rate , i mean , as jerom 〈…〉 , that the comet in the year . which appeared in aries ( to which sign , our island according to ptolomies doctrine is lyable ) under the north side of the milky way , being of a jovial , martial and mercurial force and efficacy , was the fore-teller or fore-runner of the change of religion ; which happened three years after in henry the eighth's time . but whatever may be thought in other cases , christianity is exempt from the laws and over-ruling power of the stars , and i do but too well perceive , that cardan's piety is wanting in this and in other instances , and particularly in casting our saviours nativity . and why do i too much besides my purpose , trouble my self about these things here ? go thy wayes to our janus , ( for thou canst hardly chuse but own him having two faces ) where to speak of our english brittish law ( 't is no treason i trow so to call it ) nobilitas nec origo later , sed luce sequente vincitur . — that is , it 's noble rise doth not lye hid , but light attending makes it far more clear and bright . for , si nobilitas cunctis exordia pandit laudibus , atque omnes redeunt in semina causae . that is , if nobleness doth first commence all praise , and all things from their feeds do themselves raise . however it does not at all boast of its rom●lus's , its numa's , its decemviri , it s . books , it s . and . and . verses ; and the like ; which having been digested long since ( as it were — non hos quaesitum munus in usus , that is , a boon not purchas'd for such use as this ) do far and near bear sway in courts of law throughout all europe ; yet is not the rise and original of our laws also less to be regarded ; nor is it perchance for distance of time further from iapetus than they . but go thy wayes , i say , and see that thou dost not undertake without reason and good advice , to fit any thing to the present age , otherwise than the changes , the repeals and cancelling parts of laws , and new emergencies and vicissitudes of affairs , which were frequent , will give thee leave . remember lucretius in this case alike as in others . quod fuit in pretio , fit nullo denique honore ; porrò aliud succedit , & è contemtibus exit , inque dies magis appetitur , floretque repertum laudibus , & miro'st mortaleis inter honore . that is , what was in price , at last hath no esteem ; whilst somewhat else starts up , and gains repute , and every day grows more in vogue and brute , and mortals strangely do it highly deem . according to what that other , and the greatest philosopher among the poets saith , multa dies , variusque labor mutabilis aevi rettulit in melius . — that is , time and the various toyl of changing age many things betters , and reforms the stage . and the greek sentence , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . for time to laws themselves gives law full oft . without a world of rubs in the way and slips or distances of years , i saw i was not able to put upon the work the face of a history , and to muster up all things that are wanting . very many things are so effaced by injury of time , several things have been lost through neglect , nor is the learned world under a small discontent , or at small variance by reason of this loss . these remains , which are left us , to be handled upon occasion , i have alwayes accounted pleasant researches : i , and perhaps one may say , that those learned pieces , which pomponius , rivallius , zasius , oldendorp , brissonius , and others , have published concerning the twelve tables , and the laws written upon oaken planks , upon elephants skins , and in former ages upon brass , are not of more use and advantage for the city spire in germany , than these collections may be for westminster-hall amongst us . we have said enough and to spare , concerning the model and frame of the work. for me now to beg the readers pardon , that i may speak a little concerning my self , seeing it was at my own choice , whether i would give him trouble or no , would be silly . i so be that any one shall shew himself more busie or pragmatical in these writings of mine , than becomes him ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not knowing ( as we say ) a pig from a dog. i would not have him ignorant , that i value it no more than a rush , to be lashed with the flouts of prattle-boxes or tittle-tatlers , and sch creatures as carry the goddess nemesis on pickpack . nor does any one that is in his wits , when an ass kicks and flings at him to little or no purpose , regard an idle oafish affront so as to requite it . i paint upon my weather-boards averrunca , i.e. god forefend , ( as they did of old arse verse upon houses , to preserve them from fire . ) may intercedona , pilumnus , and deverra , drive away silvanus , and keep him off from doing this tender infant any harm . well! let asses and silly animals commend , find fault , tune their pipes , how they will : let the envious and ill natured with their sneerings , prate and talk ; let snotty nosed fellows and clowns , that feed upon cockle bread , approve what i write , or let them flout and fleer , or let them play jack of both sides ; it 's all fiddle faddle to me , nor would i put a straw between . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . brow-benders , making nose and chin to meet , with dangling beards like sacks down to your feet . ye rigid cato's and severe criticks , do ye take in good part , what i have done ; nor let me be altogether slighted , if by chance ye shall vouchsafe to look this way , nor with your skew looks fore-speak my harvest in the blade . i shall readily and willingly yield the conquest to him that fairly gets it , and rightfully corrects me . but whoever thou art of that sort of men , per meos fines & aprica rura lenis incedas , abeasque parvis aequus alumnis . o're my bounds and sunny plain take a gentle walk or twain ; then depart with friendly mind , to me and my lambkins kind . you , that are candid and courteous , know , that 't is a very hard matter to brighten things that are grown out of use , to furnish things obscure with light , to set off things that are disdained , with credit , to make things doubtful pass for probable , to assign to every thing it s own nature , and every thing to its own nature ; and that it is a very brave and gallant thing , as he sayes , for those that have not attained their design , yet to have endeavoured it ; when the will ( as we say ) is accepted for the deed. but i know too , that every cone or point of vision in the opticks differs from a right angle ; and i know how odious a thing a train or solemn procession is in the publick games . therefore , dear reader , i bid thee heartily farewel ; and with a fortunate endeavour , fetch out hence , what may make for thy turn . why do i delay all this while to let thee in ? 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . go thy wayes in , o' gods name . laudamus veteres , sed nostris utimur annis : mos tamen est aeque dignus uterque coli . we praise old times , but make use of our own ; and yet 't is fit they both alike be known . go in and welcome heartily ; and be not unkind to thy entertainer . from the inner temple london , decemb. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . in laudem dignissimi authoris , & politioris literaturae candidati , carmen . cum jovis effoeti pallas foret orta cerebro , vagitus teneros virgo patrima dedit . accurrit , tacitéque novam subducere prolem tentat , & abstrusis abdere juno locis . jupiter ingenuam solerti indagine natam quaeritat , & celeri permeat astra pede ; stat , cerebrique tuam cernens , seldene , minervam in natae amplexus irruit ille tuae . atque suam credit ; parilique ab imagine formae illa fuit suavis , suavis & illa fuit . lisque foret , nisi quae quondam lucina fuisset , musarum testis turba novena fuit . quam cognata jovis tua casta minerva minervae est , cum tantum fallax lusit imago deum ? aliud . dum tuus ambiguâ janus , facieque biformi respicit antiqua , & posteriora videt : archivos themidis canos , monumentaque legum vindicat à veteri semi-sopita situ . hinc duplex te jane manet veterane corona , gratia canitie , posteritate decus . gulielmus bakerus oxon. astraeae brit . ultima caelicolûm terras astraea reliquit . tu tamen alma redi & terras astraea revise : astraea alma redi tuis britannis : et diva alma fave tuis britannis : et diva alma fove tuos britannos : et diva alma regas tuos britannos : cantemus tibi sic tui britanni : foelices nimium ô tui britanni : tu tandem alma redis divum postrema britannis : ultima coelicolûm terras astraea revisit . alma redi . sacro redolent altaria sumo et tibi sacratis ignibus . alma redi . alma redi . posuit liber hic primordia juris anglos quo poteris tu regere . alma redi . alma redi . tibi templa struit seldenus : at aram qui tibi nil potuit sanctius . alma redi . e. heyward . in epigraphen libri carmen . quisnam iò mussat ? posuisti enyo arma ; jam doctos iber haùt batavos marte turbat ; foedere jam britannus continet orbem . clusium audax quis reserat latentem ? falleris . diae themidis recludo intima . haec portâ meliùs feratâ pandit eanus . i. s. the contents of the chapters . book i. chap. i. the counterfeit berosus with the monk that put him forth , both censured . the story of samothes the first celtick king. the bounds of celtica . from samothes , say they , the britans and gauls were called samothei . for which diogenes laertius is falsly quoted ; the word in him , being semnothei , page . chap. ii. an account of the semnothei . why so called ; the opinion of h. stephen , and of the author . old heroes and philosophers went by the names of demy-gods . the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or venerable goddesses , the same as eumenides , dispensers of justice . and by plutarch and orpheus they are set for civil magistrates . judges in scripture so called elohim , i. e. gods. these semnai theai the same as deae matres in an old british inscription , p. chap. iii. one law of samothes out of basingstoke concerning the reckoning of time by nights . bodinus his censure of astrologers for otherwise computing their planetary hours . a brief account of some of samothes his successors , magus , sarron , druis , from whom the druids , &c. p. chap. iv. k. phranicus . years after samothes being to reside in pannonia , intrusts the druids with the government . in the mean time brutus , aeneas his grand-son , arrives and is owned king by the britans , and builds troynovant , i. e. london . dunvallo molmutius . years after is king , and makes laws concerning sanctuaries , roads or high-wayes and plow-lands . k. belin his son confirms those laws , and casts up four great cause-wayes through the island . a further account of molmutius . p. chap. v. a brief account of q. regent martia , and of merchenlage , whether so called from her , or from the mercians . annius again censured for a forger , and his berosus for a fabulous writer , p. chap. vi. the story of brutus canvast and taken to be a poetick fiction of the bards . jeoffry of monmouth's credit called in question . antiquaries at a loss in their judgements of these frivolous stories , p. chap. vii . what the trojan laws were , which brutus brought in . that concerning the eldest sons inheriting the whole estate , confuted . in the first times there were no positive laws ; yet mention made of them in some very ancient authors , notwithstanding a remark of some ancient writers to the contrary , p. chap. viii . an account of the druids out of caesar's commentaries , whence they were so called . their determining in point of law , and passing sentence in case of crime . their award binds all parties . their way of excommunicating or outlawing . they have a chief over them . how he is chosen . their priviledge and immunity , p. chap. ix . the menage of their schools without writing . on other occasions they might use the greek letters , as caesar saith , yet not have the language . the greek letters then were others than what they are now . these borrowed from the gauls , as those from the phoenicians . ceregy-drudion , or the druids stones in wales . this place of caesar's suspected . lipsius his judgement of the whole book , p. chap. x. the druids reckoning of time . an age consists of thirty years . what authors treat of the druids . their doctrines and customs savour of pythagoras and the cabbalists . they were the eldest philosophers and lawyers among the gentiles . some odd images of theirs in stone , in an abby near voitland , described , p. chap. xi . the britans and gauls had laws and customs much alike , and whence that came . some things common to them both , set down ; in relation to the breeding of their children , the marrying of their wives , the governing of their families , burning women that killed their husbands , and burning some servants with the dead master for company . together with some remarks of their publick government , p. chap. xii . women admitted to publick debates . a large commendation of the sex , together with a vindication of their fitness to govern ; against the salick law , made out by several examples of most nations , p. chap. xiii . their putting themselves under protection by going into great mens service . their coins of money , and their weighing of it . some sorts of flesh not lawful to be eaten by them , p. chap. xiv . community of wives among the britans , used formerly by other nations also . chalcondylas his mistake from our civil custom of saluting . a rebuke of the foolish humour of jealousie , p. chap. xv. an account of the british state under the romans . claudius wins a battel , and returns to rome in triumph , and leaves a. plautius to order affairs . a colony is sent to maldon in essex , and to several other places . the nature of these colonies out of lipsius . julius agricola's government here in vespasian's time , p. chap. xvi . in commodus his time king lucy embraces the christian religion , and desires eleutherius then pope , to send him the roman laws . in stead of heathen priests , he makes three arch-bishops and twenty eight bishops . he endows the churches , and makes them sanctuaries . the manner of government in constantine's time , where ends the roman account . p. chap. xvii . the saxons are sent for in by vortigern against the scots and picts , who usurping the government , set up the heptarchy . the angles , jutes , frisons , all called saxons . an account of them and their laws , taken out of adam of bremen , p. chap. xviii . the saxons division of their people into four ranks . no person to marry out of his own rank . what proportion to be observed in marriages according to policy . like to like the old rule . now matrimony is made a matter of money , p. chap. xix . the saxons way of judging the event of war with an enemy . their manner of approving a proposal in council , by clattering their arms. the original of hundred-courts . their dubbing their youth into men. the priviledge of young lads nobly born . the morganheb or wedding-dowry , p. chap. xx. their severe punishments of adultery , by maiming some parts of the body . the reason of it given by bracton . the like practised by danes and normans , p. chap. xxi . the manner of inheriting among them . of deadly feuds . of wergild or head-money for murder . the nature of country-tenures and knights fees , p. chap. xxii . since the return of christianity into the island . king ethelbert's law against sacriledge . thieves formerly amerced in cattel . a blot upon theodred the good , bishop of london , for hanging thieves . the country called engelond by order of king egbert , and why so called . the laws of king ina , alfred , ethelred , &c. are still to be met with in saxon. those of edward the confessor , and king knute the dane , were put forth by mr. lambard in his archaeonomia , p. chap. xxiii . king alfred divides england into counties or shires , and into hundreds and tythings . the original of decenna or court-leet , friburg , and mainpast . forms of law , how people were to answer for those whom they had in borgh or mainpast , p. chap. xxiv . king alfred first appointed sheriffs . by duns scotus his advice , he gave order for the breeding up of youth in learning . by the way , what a hide of land is . king edgar's law for drinking . prelates investiture by the kings ring and staff. king knute's law against any english-man that should kill a dane . hence englescyre . the manner of subscribing and sealing till edward the confessor's time . king harold's law , that no welch-man should come on this side offa's dike with a weapon , p. chap. vxx . the royal consorts great priviledge of granting . felons estates forfeited to the king. estates granted by the king with three exceptions of expedition , bridge , and castle . the ceremony of the kings presenting a turf at the altar of that church , to which he gave land. such a grant of king ethelbald comprized in old verse , p. the contetns . book ii. chap. i. william the conquerour's title . he bestows lands upon his followers , and brings bishops and abbots under military service . an account of the old english laws , called merchenlage , dan●lage , and westsaxen-lage . he is prevailed upon by the barons , to govern according to king edward's laws , and at s. albans takes his oath so to do . yet some new laws were added to those old ones , p. chap. ii. the whole country inrolled in dooms-day book . why that book so called . robert of glocester's verses to prove it . the original of charters and seals from the normans , practised of old among the french. who among the romans had the priviledge of using rings to seal with , and who not , p. chap. iii. other wayes of granting and conveying estates , by a sword , &c. particularly by a horn. godwin's trick to get boseham of the arch-bishop of canterbury . pleadings in french. the french language and hand when came in fashion . coverse● . laws against taking of deer , against murder ; against rape , p. chap. iv. sheriffs and juries were before this time . the four terms . judges to act without appeal . justices of peace . the kings payments made at first in provisions . afterwards changed into mony , which the sheriff of each county was to pay in to the exchequer . the constable of dover and warder of the cinque ports why made ▪ a disorder in church-affairs reformed , p. chap. v. william rufus succeeds . annats now paid to the king. why claimed by the pope . no one to go out of the land without leave . hunting of deer made felony . p. chap. vi. henry the first why called beauclerk . his letters of repeal . an order for the relief of lands . what a hereot was . of the marriage of the kings homagers daughter , &c. of an orphans marriage . of the widows dowry . of other homagers the like . coynage-money remitted . of the disposal of estates . the goods of those that dye intestate , now and long since , in the churches jurisdiction ; as also the business of wills. of forfeitures . of misdemeanors . of forests . of the fee de hauberk . king edward's law restored , p. chap. vii . his order for the restraint of his courtiers . what the punishment of theft . coyners to lose their hands and privy members . guelding a kind of death . what half-pence and farthings to pass . the right measure of the eln. the kings price set for provisions , p. chap. viii . the regality claim'd by the pope , but within a while resumed by the king. the coverfe● dispensed with . a subsidy for marrying the kings daughter . the courtesie of england . concerning shipwrack . a tax levied to raise and carry on a war , p. chap. ix . in king stephen's reign all was to pieces . abundance of castles built . of the priviledge of coining . appeals to the court of rome now set on foot . the roman laws brought in , but disowned . an instance in the wonder-working parliament , p. chap. x. in king henry the seconds time , the castles demolished . a parliament held at clarendon . of the advowson and presentation of churches . estates not to be given to monasteries without the kings leave . clergymen to answer in the kings court. a clergyman convict , out of the churches protection . none to go out of the realm , without the kings leave . this repealed by king john. excommunicate persons to find surety . laymen how to be impleaded in the ecclesiastical court. a lay-jury to swear there , in what case . no homager or officer of the kings to be excommunicated , till he or his justice be acquainted , p. chap. xi . other laws of church affairs . concerning appeals . a suit betwixt a clergy-man and a lay-man , where to be tryed . in what case one , who relates to the king , may be put under an interdict . the difference betwixt that and excommunication . bishops to be present at the tryals of criminals , until sentence of death , &c. pass . profits of vacant bishopricks , &c. belong to the king. the next bishop to be chosen in the kings chappel , and to do homage before consecration . deforcements to the bishop , to be righted by the king. and on the contrary , chattels forfeit to the king , not to be detained by the church . pleas of debts whatsoever in the kings court. yeomens sons not to go into orders without the lords leave , p. chap. xii . the statutes of clarendon mis-reported in matthew paris , amended in quadrilegus . these laws occasioned a quarrel between the king and thomas a becket . witness robert of glocester , whom he calls yumen . the same as rusticks , i. e. villains . why a bishop of dublin called scorch-uillein . villanage before the normans time , p. chap. xiii . the poet gives account which of those laws were granted by thomas a becket , which withstood . leudemen signifies lay-men , and more generally all illiterate persons , p. chap. xiv . the pope absolves thomas a becket from his oath , and damns the laws of clarendon . the king resents it , writes to his sheriffs , orders a seisure . penalties inflicted on kindred . he provides against an interdict from rome . he summons the bishops of london and norwich . an account of peter pence , p. chap. xv. a parliament at northampton . six circuits ordered . a list of the then justices . the jury to be of twelve knights . several sorts of knights . in what cases honorary knights to serve in juries . those who come to parliament by right of peerage , sit as barons . those who come by letters of summons , are styled chevaliers , p. chap. xvi . the person convict by ordeal , to quit the realm within forty dayes . why forty dayes allowed . an account of the ordeals by fire and water . lady emme clear'd by going over burning coulters . two sorts of tryal by water . learned conjectures at the rise and reason of these customs . these ordeals , as also that of single combat condemned by the church , p. chap. xvii . other laws : of entertaining of strangers . an uncuth , a gust , a hogenhine ; what of him who confesseth the murder , &c. of frank pledge . of an heir under age . of a widows dowry . of taking the kings fealty . of setting a time to do homage . of the justices duty . of their demolishing of castles . of felons to be put into the sheriffs hands . of those who have departed the realm , p. chap. xviii . some laws in favour of the clergy . of forfeitures on the account of forest or hunting . of knights fees . who to bear arms , and what arms. arms not to be alienated . no jew to bear arms. arms not to be carryed out of england . rich men under suspicion to clear themselves by oath . who allowed to swear against a free-man . timber for building of ships not to be carryed out of england . none but free-men to bear arms. free-men who . rusticks or villains not such , p. chap. xix . of law-makers . our kings not monarchs at first . several of them in the same county . the druids meeting-place where . under the saxons , laws made in a general assembly of the states . several instances . this assembly under the normans called parliament . the thing taken from a custome of the ancient germans . who had right to sit in parliament . the harmony of the three estates , p. chap. xx. the guardians of the laws , who . in the saxons time seven chief . one of the kings among the heptarchs styled monarch of all england . the office of lord high constable . of lord chancellor , ancient . the lord treasurer . alderman of england , what . why one called healfkoning . aldermen of provinces and graves , the same as counts or earls and viscounts or sheriffs . of the county court , and the court of inquests , called tourn le viscount . when this court kept , and the original of it , p. chap. xxi . of the norman earls . their fee. their power of making laws . of the barons , i. e. lords of manours . of the court-baron . it s rise . an instance of it out of hoveden . other offices much alike with the saxons . p. the first book of the english janus . from the beginning of the british story down to the norman conquest . chap. i. the counterfeit berosus with the monk that put him forth , both censured . the story of samothes the first celtick king. the bounds of celtica . from samothes , say they , the britans and gauls were called samothei . for which diogenes laertius is falsly quoted ; the word in him , being semnothei . there came forth , and in buskins too ( i mean , with pomp and state ) some parcels of years ago , and is still handed about every where , an author , called berosus a chaldee priest ( take heed how you suffer your self to believe him to be the same that flavius josephus so often up and down quotes for a witness ) with a commentary of viterbiensis . or , rather to say that which is the very truth , john annius of viterbium ( a city of tuscany ) a dominican frier , playing the leger-de-main , having counterfeited berosus , to put off his own strange stories , hath put a cheat upon the lady muse who is the governess of antiquities , and has hung a bantling at her back . after the genealogies of the hebrews drawn down by that author , whoever he be , according to his own humour and method , for fear he should not be thought to take in the kingdoms and kings of the whole universe , and the etymologies of proper names by whole-sale , as we say ; as if he had been born the next day after grandam ops was delivered of jupiter , he subjoyns samothes ( the very same who is yeleped dis ) the founder of the celtick colonies , stuffing up odd patcheries of story to entertain and abuse the reader . now , this i thought fit by the by , not to conceal , that all that space which is bounded with the river rhine , the alpes , the mediterranean sea , the pyrenean hills , and lastly , the gascoin and the british oceans , was formerly termed celtogalatia ; nay , that p●olomy hath comprized all europe under the name of celtica . well , as the commentary of annius has it , this samothes was brother to gomar and tubal by their father japhet , from whom first the britans , then the gauls were called samothei ; and especially the philosophers and divines that were his followers . and out of laertius he tells us , for it is evident , that among the persians the magi flourished , among the babylonians and assyrians the chaldeans were famous , among the celts and gauls the druids , and those who were called samothei ; who , as aristotle in his magick , and sotion in his three and twentieth book of successions do witness , were men very well skilled in laws divine and humane , and upon that account were much addicted to religion ; and were for that reason termed samothei . these very words you meet with in annius . the name of laertius is pretended , and the beginning of his volume concerning the lives of philosophers . why then let us read laertius himself ; and amongst the celts and gauls ( saith he ) the semnothei as saith aristotle in his book of magick , and sotion in his three and twentieth of succession . concerning the samothei any other wayes there is not so much as one syllable . that they were men well skilled in laws divine and humane , or that they had their name given them upon that account , only the latin and foisted edition of b. brognol the venetian has told us : whereas in truth , in all the ancient greek copies of laertius , which that great scholar harry stephen saw and consulted with ( and he sayes he perused eight or nine ) there is no mention at all made of that business . and yet for all that , i cannot perswade my self , that it was only for want of care , or by meer chance , that this slipt into the glosses : it does appear , that there have been able lawyers and master philosophers not only among the greeks , the gauls , and those of italy ; but also among the northern nations , however barbarous . witness the druids among us , and among the goths , as jornandes tells us , besides cosmicus , one diceneus , who , being at once king of men , and priest of phoebus , did together with natural philosophy and other parts of good learning , transmit to posterity a body of laws , which they called bellagines ; that is , by-laws . there are some , who in laertius read samothei ; which is a device of those men , who with too much easiness ( they are isaac casaubon's words ) that i may say no worse , suffer themselves to be led by the nose by that counterfeit berosus . chap. ii. an account of the semnothei . why so called ; the opinion of h. stephen , and of the author . old heroes and philosophers went by the names of demy-gods . the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or venerable goddesses , the same as eumenides , dispensers of justice . and by plutarch and orpheus they are set for civil magistrates . judges in scripture so called elohim , i. e. gods. these semnai theai the same as deae matres in an old british inscription . and indeed if the samothei had any thing to do with truth , or the semnothei any thing to do with the ancient law of the celts ( in as much as they write , that britany was once in subjection to the celtick kings ) i should judge it not much beside the design of my intended method to inquire into the name and nature of them both . but they being both one and t'other past all hope , except such a one as lucian returning from the inhabitants of the sun , or those of the moon , would write their history , to speak of them would be more than to lose ones labour . i dare not to say much of them . i imagine , sayes harry stephen , they were so called , for having the gods often in their mouths , and that in these words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , the worshipful gods ; or for that they themselves were accounted amongst men as a kind of worshipful gods : but , writes he , this latter i do not take to be so likely as the former . but say i for my part , if i might venture my opinion against the judgement of so great a person , i guess this latter to be the likelier of the two . that the old heroes went by the names of gods , is a thing we read every where ; nor did antiquity grudge the bestowal of this honour even upon philosophers . not upon amphiaraus the prophet ; not upon aesculapius , not upon hippocrates , renowned physicians ; they are reckoned among the middle sort of gods. thus plato also was accounted by antistius labeo for a demy-god , and tyrtamus for his divine eloquence , had the name of theophrastus ( that is , god-like speaker ) given him by his master aristotle . no wonder then , if thereupon thence forward great philosophers were called semnothei , and as it were worshipful gods. these instances incline me , whilst i only take a view of their philosophy ; whom , if either the authority of annius , or the interpretation of brognol had sufficiently and fairly made out to have been also at the same time students and masters of law , i should hardly stick almost to affirm , that i had found out in what places the true natural spring and source both of their name , and as i may say , of their delegated power is to be met with . for i have it in pausanias ( forbear your flouts , because i waft over into greece , from whence the most ancient customs both sacred and prophane of the gentiles came ) i say in pausanias the most diligent searcher of the greek antiquities , i meet upon mars his hill at athens , and also in his achaicks ( or survey of achaia ) with chappels of the goddesses whom the athenians styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , worshipful . he himself also in his corinthiacks makes mention of a grove set thick with a sort of oaks on the left side of asopus a river in sicyon ( a countrey of peleponnesus ) where there stood a little chappel of the goddesses , whom the athenians termed semnai , the sicyomans called eumenides . the story of orestes and the eumenides or furies that haunted him is known to every body , nor can you tell me of any little smatterer in poetry , who doth not know , that they , together with adrastia , ramnusia , nem●sis , and other goddesses of the same stamp , are pretended to be the avengers of villanies , and continually to assist jupiter the great god in punishing the wicked actions of mortals . they were black ones that met with orestes , but that there were white ones too , to whom together with the graces the ancients paid their devotions ; the same pausanias has left written in his survey of arcadia . i let pass that in the same author , she whom some called erinnys , that is a fury ; others called themis the goddess of justice . to be brief and plain ; the furies , that is , the avenging goddesses sit upon the skirts of the wicked ; but the eumenides , that is , the kind goddesses , as sophocles interprets them ( for that they were so called properly without the figure of antiphrasis or contradiction he is our author ) do attend the good and such as are blameless and faultless , and poor suppliants . nay , moreover plutarch writes in a poetick strain , that alcmaeon fled from these eumenides ; meaning in very deed , that he made his escape from the civil magistrates . in a word , the whole business we have been aiming at , orpheus compriseth in two verses of that hymn he has made upon those goddesses . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . which in a short paraphrase speaks thus ; but ye with eye of justice , and a face of majesty survey all humane race , judges commission'd to all time and place . see here plainly out of the most ancient divine among the heathens , how judges and the dispensers of law pass under the notion of these venerable goddesses : and it was a thing of custom to term the right of the infernal powers , as well as the doctrine of the heavenly ones , a thing holy and sacred . what hinders then i pray , but that one may guess , that the name , and title , and attributes or characters of the semnothei sprang forth and flowed from hence ; to wit , from the semnai theai or venerable goddesses ? homer in his poems calls kings 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , persons bred and nourished by jove ; yea , the eternal and sacred scriptures themselves do more than once call judges by that most holy name elohim , that is , gods. the judgement is gods , not mans ; and ( as munster remarks out of rabbi kimchi ) whatsoever thing scripture designs to magnifie or express with height , it subjoyns to it the name of god. god ( as plutarch has it out of plato , who in his attick style imitates our moses ) hath set himself out as a pattern of the good , the dreadful syllables of whose very notto be uttered name ( though we take no notice of the cahalists art ) do strike , move and twitch the ears of mortals , and one while when thorough ignorance they straggle out of the way , do bring them back into the path or track of justice ; another while when they are stopt up with prejudice , and are overcast with gloomy darkness , do with a stupendous , dismal and continual trembling shake the poor wretches , and put them into ague-fits . nor let that be any hindrance , that so splendid and so manly a name is taken from the weaker sex , to wit , the goddesses . let us more especially have to do with the britans , as those amongst whom are those choice and singular altars , not any where else to be met with in the whole world , with this inscription , deis matribus , to the mother-goddesses . concerning these mother-goddesses , that excellent learned man ( that i may hint it by the by ) confesses he could with all his search find out nothing ; but if such a mean person as i , may have leave , what if one should imagine , that those goddesses , whom pausanias in his attick stories calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , were the same as these mother goddesses ? for so those names import . the mother of the gods is a title well known ; wherewith not only berecynthia , but also juno , cybele , tellus , ceres , and other shee s among mythologists are celebrated and made famous . be this , if you will , a thing by the by and out of the way ; as he tells us , no great wit ever pleased without a pardon . relying upon that ( the readers pardon i mean ) i undertook this job , whatever it is ; and upon confidence of that , i come back to the business . chap. iii. one law of samothes out of basingstoke concerning the reckoning of time by nights . bodinus his censure of astrologers for otherwise computing their planetary hours . a brief account of some of samothes his successors , magus , sarron , druis , from whom the druids , &c. we do not any where meet with any law enacted by samothes his authority . yet one only one concerning the account of times , basingstoke the count palatine , a very modern historian , attributes to him . he defined , sayes he , the spaces or intervals of all time , not by the number of dayes , but of nights ( the same thing , saith caesar of the gauls , and tacitus of the germans ) and he observed birth-dayes , and the commencements of months and years in that order , that the day should come after the night . truth is , the britans do at this time observe that fashion , which is most ancient , and highly agreeable to nature . and the evening and the morning was the first day , and so on , sayes the hebrew writer , whose countrey-men the jews also followed this custom . the peripateticks ( i. e. the followers of aristotle ) do also at this rate reckon privation in the number of their three principles ; and hereupon john bodin adventures to censure the common astrologers , that they , according to the course of the planets as they order it , and repeat it over and over , begin their unequal hours , from the rising , rather than the setting of the sun. they write , that after this samothes , there came in play magus , sarran , druis , bardus , and others more than a good many , in order of succession . sarron was not addicted to make laws ( 't is stephanus forcatulus helps us to this ) but to compose them , to put them into order , and to recommend them to practice , as one who reduced those laws , which his grand-father samothes , and afterward his father magus had made , into one volume , and with severe menaces gave order for the keeping of them . from druis or druides they will have the druids so called , a sort of philosophers so much famed and talked of in caesar , pliny and others : believe it who list for me . the whole business of the druids at present i put off till caesar's times . chap. iv. k. phranicus . years after samothes being to reside in pannonia , intrusts the druids with the government . in the mean time brutus , aeneas his grand-son , arrives and is owned king by the britans , and builds troynovant , i. e. london . dunvallo molmutius . years after is king , and makes laws concerning sanctuaries , roads or high-wayes and plow-lands . k. belin his son confirms those laws , and casts up four great cause-wayes through the island . a further account of molmutius . about nine hundred years after samothes , king phranicus ( take it from the british story , and upon the credit of our jeoffry ) intrusts the druids with the management of affairs , whilst he himself resided in pannonia or hungary . in the mean time brutus , the son of sylvius posthumus king of the latines , and grand-child to aeneas ( for servius honoratus in his comment upon virgil , makes sylvius to be the son of aeneas , not of ascanius ) being happily arrived by shipping , with corinus one of the chief of his company , and coming to land at totnes in devonshire , the britans salute and own him king. he after he had built new troy ( that is , london ) gave laws to his citizens and subjects ; those such as the trojans had , or a copy of theirs . a matter of six hundred years after dunvallo molmutius being king , ordained ( my authors besides jeoffry of monmouth , are ralph of chester in his polychronicon , and florilegus ) that their ploughs , temples and roads that led to cities , should have the priviledge to be places of refuge . but because some time after there arose a difference concerning the roads or high-wayes , they being not distinguished by certain limits and bounds , king belin son of the foresaid molmutius , to remove all doubt , caused to be made throughout the island four royal high-wayes to which that priviledge might belong ; to wit , the fosse or dike , watlingstrete , ermingstrete , and ikeniltstrete . ( but our learned countrey-man and the great light of britan , william camden , clarenceaux king at arms is of opinion , these cause-wayes were cast up by the romans ; a thing that tacitus , b●de and others do more than intimate . ) moreover , so sayes jeoffry , he ordained those laws , which were called molmutius his laws , which to this very time are so famed amongst the english. forasmuch as amongst other things , which a long time after , gildas set down in writing , he ordained , that the temples of the gods , and that cities should have that respect and veneration , that whatsoever runagate servant , or guilty person should fly to them for refuge , he should have pardon in the presence of his enemy or prosecutor . he ordained also , that the wayes or roads which led to the aforesaid temples and cities , as also the ploughs of husbandmen should be confirmed by the same law : afterwards having reigned forty years in peace , he dyed and was buried in the city of london , then called troynovant , near the temple of concord ( by which temple , there are not wanting those who understand that illustrious colledge on the bank of thames , consecrated to the study of our common law , now called the temple and ) which he himself had built for the confirmation of his laws . at this rate jeoffry tells the story ; but behold also those things which polydore virgil hath gathered out of ancient writers , whereof he wanted no store . he first used a golden crown , appointed weights and measures for selling and buying of things , punisht thieves and all mischievous sorts of men with the greatest severity ; made a great many high-wayes ; and gave order , how broad they should be , and ordained by law , that the right of those wayes belonged only to the prince ; and set dreadful penalties upon their heads , who should violate that right , alike as upon theirs who should commit any misdemeanour in those wayes . moreover , that the land might not lye barren , nor the people be frequently oppressed or lessened through dearth or want of corn , if cattle alone should possess the fields , which ought to be tilled by men , he appointed how many ploughs every county should have , and set a penalty upon them by whose means that number should he diminished : and he made a law , that labouring beasts which attended the plough , should not be distrained by officers , nor assigned over to creditors for money that was owing , if the debtor had any other goods left . thus much polydore . chap. v. a brief account of q. regent martia , and of merchenlage , whether so called from her , or from the mercians . annius again censured for a forger , and his berosus , for a fabulous writer . the female government of martia , widow to king quintiline , who had undertaken the tuition of sisillius son to them both , he being not as yet fit for the government , by reason of his nonage ; found out a law , which the britons called the martian law. this also among the rest ( i tell you but what jeoffry of monmouth tells me ) king alfred translated , which in the saxon tongue he called merchenlage . whereas nevertheless in that most elaborate work of camden , wherein he gives account of our countrey , merchenlage is more appositely and fitly derived from the mercians , and they so called from the saxon word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , a limit , bound or border . these are the stories , which writers have delivered to us concerning those times , which were more ancient than the history of the romans ; but such as are of suspected , of doubtful , that i may not say of no credit at all . among the more learned , there is hardly any critick , who does not set down annius in the list of forgers . and should one go to draw up the account of times , and to observe that difference which is so apparent in that berosus of viterbium from sacred scriptures , and the monuments of the hebrews , one would perhaps think , that he were no more to be believed , than another of the same name , who from a perpendicular position of the wandring stars to the center of the world in the sign of cancer , adventured to foretel , that all things should be burnt ; and from a like congress of them in capricorn , to say , there would be an universal deluge . the story is in seneca . chap. vi. the story of brutus canvast and taken to be a poetick fiction of the bards . jeoffry of monmouth's credit called in question . antiquaries at a loss in their judgements of these frivolous stories . some have in like manner made enquiry concerning our british history , and stumbled at it . from hence we had brutus , dunvallo and queen martia : there are some both very learned and very judicious persons , who suspect , that that story is patched up out of bards songs and poetick fictions taken upon trust , like talmudical traditions , on purpose to raise the british name out of the trojan ashes . for though antiquity , as one has it , is credited for a great witness ; yet however 't is a wonder , that this brutus , who is reported to have killed his father with an arrow unluckily aimed , and to have been fatal to his mother at her very delivery of him ( for which reason richard vitus now after so many ages makes his true name to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , mortal ) should be mentioned by none of the romans : a wonder , i say , that the latin writers should not be acquainted with the name of a latin prince , who gave both name and government to britany . did euemerus messenius alone ever since the world began , fail to the panchoans and the triphyllians ? indeed it is an ordinary thing for poets , to ingraft those whom they celebrate in their poems , into noble stocks and illustrious families , and by the assistance of their muses heightning every thing above the truth , to feign and devise a great many stories . and what else were the bards , as athenaeus tells us out of possidonius ; but poets reciting mens praises in song ? how many things are there in that fabulous age ( which in joseph scaliger's account would more aptly be called the heroick age of the world , i mean ) down from that much talked of deluge of pyrrha to the beginning of iphitus his olympiads ; how many idle stories are there mixt with true ones , and afterwards drest up and brought upon the stage ? very many nations , sayes trithemius , as well in europe as in asia , pretend they took their original from the trojans ; to whom i have thought good to lend so much faith , as they shall be able to perswade me of truth by sufficient testimony . they are frivolous things , which they bring concerning their own nobility and antiquity , having a mind as it were openly to boast , as if there had been no people in europe before the destruction of troy ; and as if there had been no one among the trojans themselves of ignoble birth . he who made the alphabetical index to jeoffry of monmouth ( who was bishop of st. asaph too ) as he is printed and put forth by ascensius , propt up the authors credit upon this account , that , as he sayes , he makes no mention any where in his book , of the franks ; by reason forsooth , that all those things almost , which he has written of , were done and past before the franks arrival in france . this was a slip surely more than of memory . go to jeoffry himself , and in his nineteenth chapter of his first book you meet with the franks in the time of brennus and belinus among the senones , a people of france : a gross misreckoning of i know not how many hundred years . for the franks are not known to have taken up their quarters on this side the river rhine , till some centuries of years after christs incarnation . for howbeit by poetick license and rhetorical figure aeneas be said to have come to the lavinian shores , ( which had not that name till some time after ) yet it were much better , that , both in verse and prose , those things which appertain to history , should be expressed according to that form of ovid ; where at the burning of rhemus his funeral pile he sayes , tunc juvenes nondum facti flevere quirites ; that is , the young men then not yet quirites made , wept as the body on the pile they laid . and at this rate jeoffry might and ought to have made his translation , if he would have been a faithful interpreter . but as to our brutus whence the britans , saxo whence the saxons , bruno whence those of brunswick , freso whence those of friseland , and bato whence the batavians had their rise and name , take notice what pontus heuterus observes , as others have done before him . songs or ballads , sayes he , and rhymes made in an unlearned age , with ease obtruded falshoods for truths upon simple people , or mingling falsehoods with truths imposed upon them . for three or four hundred years ago there was nothing that our ancestors heard with greater glee , than that they were descended from the adulterous trojans , from alexander of macedonia the overthrower of kingdoms , from that manqueller hercules of greece , or from some other disturber of the world. and indeed that is too true which he sayes , — mensuraque fictis crescit , & auditis aliquid novus adjicit auctor . which in plain english speaks this sence . thus stories nothing in the telling lose , the next relater adding still to th' news . but i will not inlarge . to clear these points aright , antiquaries , who are at see-saw about them , will perhaps eternally be at loss , like the hebrews in their mysterious debates , for want of some elias to come and resolve their doubts . chap. vii . what the trojan laws were , which brutus brought in . that concerning the eldest sons inheriting the whole estate , confuted . in the first times there were no positive laws ; yet mention made of them in some very ancient authors , notwithstanding a remark of some ancient writers to the contrary . well ! suppose we grant there was such a person ever in the world as brutus : he made laws , they say , and those taken out of the trojan laws ; but what i pray were those trojan laws themselves ? there is one , i know well enough , they speak of , concerning the prerogative of the eldest sons , by which they inherited the whole right and estate of their deceased father . herodotus writes it of hector , son and heir to king priam , and jeoffry mentions it ; but did this law cross the sea with brutus into brittany ? how then came it , that the kingdom was divided betwixt the three brothers , locrinus , camber , and albanactus ? betwixt the two , ferrix and porrix ? betwixt brennus and belinus ? and the like of some others . how came it , that in a parliament of henry the eighth , provision was made , that the free-holds of wales should not thence-forward pass according to that custom , which they call gavelkind ? and anciently , if i be not mistaken , most inheritances were parted among the children , as we find in hesiods works . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . — i. e. we had already parted the estate . and to the same purpose many like passages there are in old poets , and in holy writ . but , as i said , what are those trojan laws ? perhaps the same with those , by which nephelococcygia , the city of the birds in aristophanes , ( or , as we use to say , vtopia ) is governed . the gravest writers do acknowledge , that those most ancient times were for the most part free from positive laws . the people , so says justin , wee held by no laws : the pleasures and resolves of their princes past for laws , or were instead of laws . natural equity , like the lesbian rule in aristotle , being adapted , applied , and fitted to the variety of emergent quarrels , as strifes , ordered , over-ruled , and decided all controversies . and indeed at the beginning of the roman state , as pomponius writes , the people resolved to live without any certain law or right , and all things were governed by the hand and power of the king : for they were but at a little distance from the golden age , when — vindice nullo sponte suâ sine lege fidem rectumque colebant . that is to say , when — people did not grudge to be plain honest without law or judge . that which the heresie of the chiliasts heretofore affirmed , concerning the sabbatick or seventh millenary , or thousand years of the world. and those shepherds or governors of the people , to whom — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 — that is , — into whose hand jove trusts his laws and scepter for command . did govern them by the guidance of vertue , and of those laws which the platonicks call the laws of second venus . not out of the ambition of rule , as st. austin hath it , but out of duty of counsel ; nor out of a domineering pride , but out of a provident tenderness . do you think the trojans had any other laws ? only except the worship of their gods and those things which belong to religion . it was duty , says seneca , not dignity , to reign and govern : and an eye and a scepter among the aegyptians , were the absolute hieroglyphicks of kings . what ? that there is not so much as the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is law , to be met with in those old poets , orpheus , musaeus , or homer , ( who was about an hundred and fifty years after the destruction of troy ) as josephus against appio , plutarch , and several modern writers have remarked : i confess , if one well consider it , this remark of theirs is not very accurate . for we very often read in homer and hesiod , the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies laws ; and in both of them the goddess eunomia from the same theme as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . — which being interpreted , is but they by legal methods bear the sway i' th' city fam'd for beauties . — which is a passage in homers hymn to mother tellus , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. the law of song , ( which musicians might not transgress ) is mentioned in his hymn to apollo . nay great plato , one beyond all exception , has left it in writing , that talus ( who had the management of the cretan common-wealth committed to him , together with rhadamauthus , the son of jupiter , by king minos ) that he did thrice every year go the circuit through the whole island ( which was the first country , as polyhistor tells us , that joyned the practice of laws with the study of letters ) and kept assizes , giving judgment according to laws engraven in brass . i say nothing of phoroneus king of the argives , or of nomio the arcadian ; and in good time leave this subject . i could wish i might peruse jupiters register , wherein he has recorded humane affairs . i could wish , that the censure of some breathing library and living study ( which might have power over the ancients , as we read in eunapius that longinus had ) or that the memory of some aethalides might help us sufficiently to clear and make out the truth . hence our next passage is to the classick writers of the latin style and story . chap. viii . an account of the druids out of caesar's commentaries , whence they were so called . their determining in point of law , and passing sentence in ease of crinie . their award binds all parties . their way of excommunicating or outlawing . they have a chief over them . how he is chosen . their priviledge and immunity . cajus julius caesar was the first of the romans , who has committed to writing the religious rites , the laws and the philosophy of the drvids . their name is of a doubtful origination , by no means were they so called from that druis or druides we meet with in berosus : but whether they were so termed from a greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that signifies an oak , in that they performed none of their devotions without oaken leaves , as pliny and those that follow him are of opinion ; or from the dutch true-wise , as goropius becanus will have it ; or from trutin , a word which with the ancient germans signified god , as paulus merula quotes it out of the gospel of othfred ( though in the angels salutation , in the magnificat , in zachariahs song and elsewhere , trutin rather denotes lord than god ; and see whether there does not lye somewhat of the druid in the name of st. truien , among the people of liege , some having exploded st. drudo ) whencesoever they had their name , these gownmen among the gauls , i and the britans too , were the interpreters and guardians of the laws . the discipline of these druids was first found in britany , and so far as it regards the civil court , we shall faithfully subjoyn it out of the forenamed caesar. . they order matters concerning all controversie , public and private . so in the laws of the twelve tables at the same rate the knowledg of cases , of precedents , of interpreting was in the colledge of pontiffs or high priests , and such plainly our druids were . if any ill prank had been played , if murder committed , if there were a controversie about inheritance , about bounds of land , these were the men that determined it , these amerced rewards and punishments . . if any private person or body of men do not stand to their award , they excommunicate him , that is , forbid him to come to sacrifice , which among them is the most grievous punishment . . those who are thus excommunicated , are accounted wicked and ungodly wretches , every body goes out of their way , and shuns their company and conversation for fear of getting any harm by contagion . neither have they the benefit of the law when they desire it , nor is any respect shown to them . . the druids have one over them , who has the chiefest authority amongst them . . when he dies , if there be any one that is eminent above the rest he succeeds in place : but if there be several of equal merit , one is chosen by majority of votes . . the druids were wont to be excused from personal attendance in war , nor did they pay taxes with the rest ; they were freed from military employ , and had an immunity of all things . the levites among the hebrews , who were the most ancient priests in the world , injoyed the same priviledge . chap. ix . the menage of their schools without writing . on other occasions they might use the greek letters , as caesar saith , yet not have the language . the greek letters then were others than what they are now . these borrowed from the gauls , as those from the phoenicians . ceregy-drudion , or the druids stones in wales . this place of caesar's suspected . lipsius his judgment of the whole book . . upon the account of that priviledge , they had in their schools ( which were most of them in britany ) a great confluence of youth . they are said to learn without book , says caesar , a great number of verses : therefore some of them spend twenty years in the discipline . nor do they judge it meet to commit such things to writing , whereas generally in all other , whether publick affairs or private accompts , they make use of greek letters . what ? greek letters so we read greek ones . why ! marseilles , a city of france , which was a greek colony of the phocians , had made the gauls such lovers of greeks , that , as strabo the geographer tells us , they writ their very contracts and covenants , bargains and agreements , in greek . the fore-mentioned julius caesar also writes , that there were tablets found in the camp of the switzers , made up of greek letters . but , for all that , i would not have any one from hence rashly to gather , that the greek language was in use to that age and people , or to these philosophers and lawyers . they made use of greek letters , therefore they had the greek tongue too ; this truly were a pitiful consequence . at this rate the ●argum or chaldee paraphrase , as paulus merula has it , and gorepius before him , would consist of the hebrew language , because 't is printed in hebrew characters : and the like may be said of the new testament in syriack , done in hebrew letters . what ? that those very letters of the greeks in caesars time , and as we now write them , are rather gallick ( as borrowed from the gauls ) than greek ? he was acquainted with those greek letters , but did not yet know the gallick ones , which learned men do think the greeks took for their copy , after the phoenician letters , which were not altogether unlike the hebrew , were grown out of use . consult for this wol●gangus lazius his celtae , becanus his gallica , and if thou hast a mind , annius his archilochus , xenophons aequivoca , and what others write concerning linus , cadmus , palam●des , and simonides , the first inventors of the alphabet . in the mean time take this from me , that those ancient and rude gothick characters , which bonaventure vulcanius of bruges , lately put forth , with a little comentary of one without a name , do very much resemble the greek ones ( as also the russian characters do at this day ) and that those which are now latin letters , were at first brought over into italy out of arcadia , along with nicostrata the mother of evander , who was banished his country . but that which seems to put the matter out of all dispute , caesar being about to write to quintus cicero , who was then besieged somewhere in flanders , among the nervians , by great rewards perswades a chevalier , that was a gaul , to carry the letter for him : he sends it written in greek , lest peradventure it being intercepted , the enemy should come to know their design . to what purpose should he have done this , if that chevalier , who was a gaul , or if the gauls , or if the very druids themselves , who had the management of state , had been skilled in greek ? among the western hills of denbeigh , a county in north-wales , there is a place , as i read in our famous chorographer , commonly called ceregy-drudion , that is , the druids stones , and some small pillars are seen at yvoellas , inscribed with foreign characters , which some suspect to have been those of the druids . who if they have reason so to suspect , i would to god , time , with his rusty teeth , had spared those pillars , that so some light might shine from thence to clear this quarrel if so be our interpretation of that form of caesars speaking , which we brought , do not please ( as to strabo's testimony , that respects somewhat later times , and perhaps mainly concerns those who lived near the sea-side ) why mayst not thou , with that great scholar francis hotoman be of opinion , that the word graecis crept into this story , either by the carelesness or confidence of transcribers ? for elsewhere in that very author , where it is said , dextris humeris exertis , justus lipsius , the prince of criticks , remarks , that the word humeris is plainly redundant , thrust in perchance by the vamper of that story , julius celsus . and what so great a man , of so great a judgment as he was , did censure of those commentaries of caesar , in his book called electa , or choice piece , take from himself thus . i see many patches stitched into that purple ; nor doth the expression it self there every where breath to my nostrils that golden ( as i may so say ) gum , or liquid myrrh , of pure antiquity . read it , read it over again , you will find many things idly said , disjoynted , intricate , vampt , said over and over , that it is not unreasonable to think , but that some novel and unskilful hand was added to this , as it were , statue of ancient work . therefore we may be easily cheated , if we stand upon such little scruples of words , as we shall meet with in one julius or other , caesar or celsus . chap. x. the druids reckoning of time . an age consists of thirty years . what authors treat of the druids . their doctrines and customs savour of pythagoras and the cabalists . they were the eldest philosophers and lawyers among the gentiles . some odd images of theirs in stone , in an abby near voitland , described . . the druids begun their months and years from the sixth moon ( so says pliny ) and that which they called an age after the thirtieth year . in the attick account an age or generation , and that of a man in his prime and strength , was comprized within the same terms , according to the opinion of heraclitus , and as it is in herodotus ; not had nestor's triple age a larger compass , if one may believe eustathius , tiberius drove these druids out of the two gallia's , claudius banisht them out of rome , and the worship of the true god christ , sped them out of britany . what further appertains to the sacred rites and doctrine of the druids , ( not to speak further of caesar ) strabo , pliny , diodorus siculus , ( by the way his latin version we do not owe to poggius of florence , as the books published would make us believe , but to john frea formerly fellow of baliol colledge in oxford , if we may believe an original copy in the library of the said colledge . ) beside these , lucan , pomponius mela , ammianus marcellinus , and very lately otho heurnius , in his antiquities of barbarous philosophy , and others have , with sufficient plainness , delivered , yet so , that every thing they say savours of pythagoras ( and yet i am ne're a whit the more perswaded that pythagoras ever taught in merton-hall at oxford , or anaxagor as at cambridge , as cantilep and lidgate have it ) i and of the cabalists too ( for john reuchlin hath compared the discipline of pythagoras , and that of the cabalists , as not much unlike . ) whether the druids , says lipsius , had their metempsychosis or transmigration of souls , from pythagoras , or he from them , i cannot tell . the very same thing is alike to be said , concerning their laws , and the common-wealths which they both of them managed : they have both the same features as like as may be , as it was with cneius pompey , and caius vibius . for the samian philosopher did not only teach those secrets of philosophy which are reserved , and kept up close in the inner shrine ; but also returning from egypt he went to croton , a city of italy , and there gave laws to the italians , ( my author is laertius ) and with near upon three hundred scholars , governed at the rate , as it were of an aristocracy . the laws of zale●cus and charondas are commended and had in request . these men , says seneca , did not in a hall of justice , nor in an inns of court , but in that secret and holy retirement of pythagoras , learn those institutes of law , which they might propose to sicily and to greece , all over italy , both at that time flourishing . that holy and silent recess was perchance borrowed of the druids : forasmuch as what clement of alexandria witnesses , heretofore the more secret and mysterious arts were derived from the barbarians to the greeks . however the business be , it appears hence plainly , that the druids were of the oldest standing among the philosophers of the gentiles , and the most ancient among their guardians of laws . for grant they were of pythagoras his school , yet even at that rate they are brought back at least to the fiftieth or sixtieth olympiad , or if thou wilt , to the tyranny of the tarquins , which is about two and twenty hundred years ago . 't is true , pliny , cicero , austin , eusebius disagree in this point ; nor will i catch that mistake by the handle , which draws him , meaning pythagoras , back to numa's time . to what hath been said , i shall not grudge to subjoyn a surplage out of conradus celtes . he is speaking of some ancient images of stone , which he had seen in a certain abby at the foot of a hill that bears pines , commonly called vichtelberg , in the neighbourhood of voitland , which he conceives did by way of statue represent the druids . they were six in number , says he , at the door of the temple niched into the wall , of seven foot apiece in height , bare-footed , having their heads uncovered , with a greekish cloak on , and that hooded , and a satchel or scrip by their side , their beard hanging down to their very privities , and forked or parted in two about their nostrils ; in their hands a book and a staff like that of diogenes , with a severe forehead and a melancholy brow , stooping down with their head , and fastening their eyes on the ground . which description , how it agrees with those things which are recounted by caesar and strabo , concerning the golden adornments , the dyed and coloured vestures , the bracelets , the shaved cheeks and chin of the britans , and other things of the like kind , let them who are concerned look to that . chap. xi . the britans and gauls had laws and customs much alike , and whence that came , some things common to them both , set down ; in relation to the breeding of their children , the marrying of their wives , the governing of their families , burning women that killed their husbands , and burning some servants with the dead master for company . together with some remarks of their publick government . but forasmuch as britanny gave the beginnings and improvements to the discipline of these druids , and both britans and gauls had their government , customs , language , rites sacred and profane , every thing almost the same , or much alike , as mr. william camden hath some while since most learnedly made out , o mr. camden , with what respect shall i name thee ! in freta dum fluvii current , dum montibus umbrae lustrabunt convext , ac dum cynosura britannos , semper honos , noménque tuum , laudesque manebunt . which in hearty english makes this acknowledgment of his worth , as long as rivers run into the main . whilst shades on mountains shall the welkin hide , and britans shall behold the northern wain , thy honour , name , and praise shall still abide . and it is evident , that a great part of britany was once under the government of divitiacus king of the soissons , a people of france . therefore these following remarks i thought not amiss to set down as british , whether they were imparted to this isle by the ancient gauls ( by reason of its nearness ) or whether the gauls owed them to the britans . . they do not suffer their children to come to them in open sight , ( they are caesar's words ) but when they are grown up to that age , that they may be able to undergo military duty and to serve in war. . the men , what mony they receive with their wives upon account of portion , they lay down so much out of their own estate upon an appraisement made to make a joint stock with the portion . there is an account jointly kept of all this mony , and the profits of it are reserved ; the longer liver is to have both shares , with the profits of the former times . . the men have power of life and death over their wives , as well as over their children . hereupon bodin charges justinian with a falshood , for affirming that other people had not the same fatherly power as the romans had . . when a master of a family , who is of higher birth and quality , dies , his kindred meet together , that if the manner of his death were suspicious , they may by torture , as servants were used , examine the wife concerning the business , and if she be found guilty , they torment her miserably and burn her alive . to this story that most excellent lawyer , and worthy lord chief justice of the common pleas , sir ed●ward coke , refers the antiquity of the law , which we at this day use of devoting to the flames those wicked baggages , who stain their hands with the nefarious murder of their husbands . . those servants and dependents , who were known to have been beloved by their master in his life time , were , when the funeral rites were prepared , burnt with him for company . . it was ordered , that if any one by flying report or common same had heard any thing from the borders , that might concern the common-wealth , he was to make it known to some magistrate , and not impart it to any body else . . the magistrates conceal those things they think fit , and what they judge may be of use to the publick , they discover to the populace . . no body has leave to speak of the common-wealth , or of publick affairs , but in council or parliament . . they came armed into the council or to parliament . so the custom of the nation was , saith livy ; and tacitus , the like of the germans . chap. xii . women admitted to publick debates . a large commendation of the sex , together with a vindication of their fitness to govern ; against the salick law , made out by several examples of most nations . . it was grown a custom amongst them ( we meet with this in plutarch ) that they treated of peace and war with their women in company , and if any questions arose betwixt them and their allies , they lest it to them to determine . the same custom the cecropians , ( that is , the people of athens ) once had , as austin relates it out of varro , before the women by majority of vote carried it for minerva against neptune . away with you , simonides , and whosoever you are , scoundrels , that unworthily abuse the finer and brighter sex. good angerona , thou goddess of silence , wash , nay stop enbulus his foul mouth , who denies there were ever any good women more than two in the world , to wit , chast penelope , and alcestis , who died in her husbands stead . how large an honour was paid to the counsels , the prudence , the virtue of the gaulish ladies in their chiefest affairs , and not without their desert ? how much honour even at this day , is yearly paid at orleance , on the eighth of may , to the statue of joan darcy of lorain , that stands on the bank of the river loir ; who obliged her dear country with a victory wonderfully got , when all had been lost . to pass by other arguments , antiquity holds this sex to be equally divine as the male. in heaven , sea , earth , together with jupiter , neptune , pluto , who were the gods that shared the world , there governed juno , salacia , proserpina , their goddesses . marry ! in varro's three fold divinity , there are more she-gods than he-gods . ipsa quoque & cultu est , & nomine foemina virtus . virtue her self , howe're it came , is female both in dress and name . but i do not go to act over caius agrippa's part , by declaiming upon female excellency . the thing it self speaks more than i can , and the subject is its own best orator . i must add one thing which cornelius tacitus tells us of the britans , that they were wont to war under the conduct of women , and to make no difference of sex in places of command and government . which places yet there are some who stiffiy deny , that women by right should have the charge of ; as being , what euripides says of them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . that is , but ill for the stout feats of war , who scarce to look on iron dare . but those authors especially , who , propped up with the salick law ( as they call it ) write , that males only are by right of inheritance capable of the government of the french , they do hold and maintain this argument tooth and nail , with all the unkindness and spite as may be to the english law , which admits of women to the throne . they urge , that not only the laws of pharamond , but nature her self is on their side . the government of women ( 't is bodin of anjou sayes it ) is contrary to the laws of nature , which hath bestowed upon men discretion , strength of body , courage and greatness of spirit , with the power of rule , and hath taken these things from women . but , sweet mr. bodin , are not discretion , strength , courage and the arts of government , more to be desired and required in those who have the tuition of kings in their minority , than in the kings themselves till they are come to age ? truly i am of that mind . for why then , pray tell me , did not that reason of yours wring the guardianship of st. louis out of the hands of the queen-mother blanch ? why not out of isabella's hands under charles the sixth ? why not of catharine de medicis , whilst the two brothers francis and charles her pupils were incircled with the crown ? why not out of the hands of mary , louis the thirteenth being at this very time king ? were the jews , that i may go back to stories more ancient , blind , that they could not see the defects of womens nature , in the government of debora , who triumphed over sisera , and is sufficiently commended in holy writ ? were the italians blind under the government of the most prudent amalasincta ? the halicarnassians , under that of the most gallant artemisia ? the egyptians , among whom heretofore their women managed law-courts and business abroad , and the men lookt to home and minded huswifery ? and the aethiopians under their nicaula , whom being very desirous of wisdom , king solomon , the wisest man that has been ever since the world was , honourably entertain'd ? were the assyrians , under the government of their magnificent semiramis ? the massagetes , under that of the revengeful dame thomyris ? the palmyre●es , under that of the most chaste zenobia ? and that i may make an end once , under that of other excellent women , all nations whatever , none excepted but the franks ? who , as goropius will have it , came to throw off and slight female government upon this account , that in vespaesian's time they had seen the affairs of their neighbours the bructeri in east friseland , whilst that scornful hag velleda ruled the roast , came to no good issue . i do very well know , that our perjured barons , when they resolved to exclude queen mawd from the english throne , made this shameful pretence , that it would be a shame , for so many nobles to be subject to a woman . and yet you shall not read , that the iceni ( our essexmen , &c. ) got any shame by that boadicia , whom gildas terms a lioness , or that the brigantes ( i. e. york-shire-men , &c. ) got any by chartismandua . you will read , that they got glory and renown by them both . reader , thou canst not here chuse but think of our late soveraign of ever blessed memory , the darling of britan , q. elizabeth , nor canst thou , whosoever thou art , but acknowledge , that there was not wanting to a woman ( what malmesbury writes of sexburga the queen dowager of cenwalch king of the west saxons ) a great spirit to discharge the duties of the kingdom ; she levied new armies , kept the old ones to duty ; she governed her subjects with clemency , kept her enemies quiet with threats ; and in a word , did every thing at that rate , that there was no other difference betwixt her and any king in management , but her sex. of whose ( i mean elizabeths ) superlative and truly royal vertues a rare poet , and otherwise a very learned man , hath sung excellently well , si quasdam tacuisse velim , quamcunque tacebo major erit : primos actus veteresque labores pros●quar ? ad sese revocant praesentia mentem . justitiam dicam ? magis at clementia splendet . victrices referam vires ? plus vicit inermis . 't is pity these are not well rendred into english. however take them as they are in blank verse . should i in silence some her uertues pass , which e're i so pass o're , will greater be : shall i her first deeds and old facts pursue ? present affairs to them call back my mind . shall i her justice in due numbers sing ? but then her clemency far brighter shines . or shall i her victorious arms relate ? in peace unarm'd she hath got more to th' state. what did the germans our ancestors ? they thought there was in that sex something of sanctity and foresight , nor did they slight their counsels , nor neglect the answers they gave , when questions were put to them about matters of business ; and as superstition increased , held most of them for goddesses . let him then , whatever dirty fellow it was , be condemned to the crows ( and be hang'd to him ) who is not ashamed out of ancient scrolls , to publish to the world , that they ( women ) agree with soldiers ( bully-rocks and hectors ) mainly in this , that they are continually very much taken up with looking after their body , and are given to lust , that souldiers themselves are not , nor endeavour to be more quick and sudden in their cheats and over-reachings , that soldiers deceive people at some distances of time , but women lye alwayes at catch , chouse and pillage their gallants all the wayes they can ; bring them into consumptions with unreasonable sittings up ; and other such like mad rude expressions he useth , not unfitting for a professor in bedlam colledge . plato allowed women to govern , nor did aristotle , ( whatever the interpreters of his politicks foolishly say ) take from them that priviledge . vertue shuts no door against any body , any sex , but freely admits all . and hermes trismegistus that thrice great man in his poemander according to his knowledge of heavenly concerns ( and that sure was great in comparison of what the owl-ey'd philosophers had ) he ascribes the mystical name of male-female to the great understanding , to wit , god , the governour of the universe . they ( the good women i have been speaking of ) from their cradle ( at this rate men commonly talk of them ) do too much love to have the reins of government , and to be uppermost . well! be it so , that they do love to govern ? and who is it doth not love them ? now a sin and shame be it for lovers to grudge to their beloved , that which is most desired and wished by them : nor could i forbear out of conscience with my suffrage , to assist as far as i could , that sex , which is so great and comfortable an importance to mankind , so sweet a refreshment amidst our sharpest toils , and the vicissitudes of life ; and in a word , is the dearest gift that dame nature could bestow upon man. but let us now return to caesar's gauls again . chap. xiii . their putting themselves under protection by going into great mens service . their coins of money , and their weighing of it . some sorts of flesh not lawful to be eaten by them . . very many of them , when they are opprest with debt or with great taxes , or with the injurious oppression of great men , put themselves out to service to the nobles . over such they have the same right or authority , as masters have over their servants or slaves . these things following are expresly related also of the britans themselves . . they use brass coin or rings ( some read it , plates ) of iron proportion'd to a certain weight , instead of money . but , ( saith solinus , a more modern historian ) they dislike and disallow of markets or fairs or money ; they give and take commodities by way of barter . camden is of opinion , that the custom of coining money , came in along with the romans among the cattieuchlani , that is , the people of buckinghamshire , bedfordshire and hartfordshire . he takes notice out of william the conqueror's book of rates or dooms-day book ( which is seasonable to mention upon this head of coins ) that as amongst the old romans , so amongst our ancestors , money was weighed ( as gervase of tilbury also tells us ) and so told out and paid down . now they paid customs to the romans ; and for this purpose they had coins stamped and marked with various shapes of living creatures and vegetables , which ever and anon are digged up out of the ground . and we read in a very ancient chronicle of the monastery of abendon , which had two kings cissa and ina for its founders , that at the laying the first foundations , there were found very old coins engraven with the pictures of devils and satyrs . one may very well suppose them to be british coins . . they do not think it lawful to taste of the flesh of hare , or hen , or goose , and yet they keep these creatures for pleasure and divertisement sake . why they forbore only hare , and hen , and goose , i am not able to give the reason . i perceive something of pythagoras , and something of the jewish discipline mixt . for that philosopher of samos abstained from the eating of flesh , not in general from all , but with a certain choice from that of some particular creatures . chap. xiv . community of wives among the britans , used formerly by other nations also . chalcondylas his mistake from our civil custom of saluting . a rebuke of the foolish humour of jealousie . . they have ten or twelve of them wives in common amongst them , and especially brothers with brothers , and fathers with their sons , but what children are born of such mothers , they are fathered upon them by whom they were first lain with , when they were maids . o villany and strange confusion of the rights of nature ! dii meliora piis , erroremque hostibus istum ! which in christian english speaks thus . good god! for th' pious better things devise , such ill as this i wish not t' enemies . however let not this platonick community of wives be more reproach to the britans , than that promiscuous copulation which was used by the thuscans , and before cecrops his time ( who for appointing marriage , that is , joyning one man and one woman together , was termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i.e. as one may say two-shaped ) by the athenians , ( as theopompus , suidas and athenaeus report it ) was to them . besides , eusebius in his evangelical preparation writes , that our people for the most part were contented with one single marriage . did not , may one think , chalcondylas mistake caesar's meaning , who a hundred years ago and upwards setting himself to write history at athens , and peradventure over-carelesly drawing ancient customs down to the last age , ventured to affirm of the britans his contemporaries , that when any one upon invitation enters the house of a friend , the custom is , that he first lye with his friends wife , and after that he is kindly entertained ? or did that officious kiss , the earnest of welcome , which is so freely admitted by our women from strangers and guests , which some take particular notice of as the custom of our countrey , put a trick upon chalcondylas , and bring him into that mistake ? 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sayes theocritus of old , that is , in empty kisses there is swéet delight . and , qui vult cubare , pangit saltem suavium , sayes the servant in plautus , he that would a woman win , with a kiss he doth begin . and that other fellow , quaero deinde illecebr●m stupri , principio eam suavium posco . and et jam illud non placet principium de osculo , sayes jealous amphitruo to his wife alcumena . and agesilaus mistrusting his wanton genius , refused the buss or salute of a handsome beautiful youth . for as he sayes , — parva leves capiunt animos , that is , small matters kindle the desire ▪ and a loose spirit 's soon on fire . this our grecian knew well enough , and perchance thought of that unlucky hint , — si non & caetera sumpsit , haec quoque , quae sumpsit , perdere dignus erat . moreover , that great philosopher of lawyers baldus , hath set it down for a rule , that the fathers consent and betrothal is ratified and made good by the daughters admitting the wooer to kiss her . which point of law it would be very ridiculous to imagine should concern us , with whom both maids and married women do easily afford , and civilly too , them that salute them a kiss , not such as catullus speaks of billing like doves , hard busses or wanton smacks , but slight modest chaste ones , and such as sisters give to brothers . these civilities , when omitted , are alwayes signs of clownishness ; when afforded , seldom are accounted signs of whorishness . nor do the husbands in this case ( unless it be perhaps some horn mad-cuckold ) with a wrinkled forehead shake their bull-feathers , or so much as mistrust any thing as upon jealousie of this custom . it may be chalcondylas being a little pur-blind , saw these passages as it were through a grated lattice , and made ill use of his mistake : i mean , whilst he compared our britans , who upon a matrimonial confidence trust their mates honesty , with the jealous italians , venetians , spaniards , and even his own countrey-men . which people , it is a wonder to me , they should so warily , with so much diligence and mistrust set pinfolds , cunning spies and close attendance , locks and keys , and bats and bolts upon their madonna 's chastity ( most commonly in my conscience all to no purpose ) when that which he has said is as good as oracle , though a wanton one . quod licet , ingratum est : quod non licet , acriùs urit . ferreus est , siquis , quod siuit alter , amat . siqua , metu dempto , casta est , ea denique casta est : quae , quia non liceat , non facit , illa facit . qui timet , ut sua sit , nequis sibi subtrahat illam ; ille machaoniâ vix ope sanus erit . in english thus , what 's frée , 's unpleasant ; what 's not , moves desire . he 's thick skull'd , who doth things allow'd admire . who , fear aside , is chaste , she 's chaste indéed ; who , cause she can't , forbears , commits the deed . who 's wife mistrusts , and plays the jealous whelp , is mad beyond physicians art and help . who does not know , that natures byass runs to things forbidden ? and he who attempts unlawful things , does more often lose those which are lawful . marry ! that free usage of the hot baths of baden in germany , men and women together , is much safer than being jealous . — quis non bonus omnia malit credere , quàm tanto sceleri damnare puellam ? that is , what good man would not take all in best sense , rather by living undisturb'd and frée ; than by distrustful foolish jealousie his lady force to quit her innocence ? but we have taken that pains upon a thing by the by , as if it were our proper business . chap. xv. an account of the british state under the romans . claudius wins a battel , and returns to rome in triumph , and leaves a. plautius to order affairs . a colony is sent to maldon in essex , and to several other places . the nature of these colonies out of lipsius . julius agricola's government here in vespasian's time . jvlius caesar gave a sight of britanny to posterity , rather than made a full discovery or a delivery of it . however malmsbury sayes , that he compelled them to swear obedience to the latin laws , certainly he did scarce so much as abridge the inhabitants from the free use of their own laws ; for the very tributes that were imposed upon them , they in a short time shook off , by revolting from the roman yoke . the same liberty they used and enjoyed to all intents and purposes during augustus , tiberius and caligula's reigns . aulus plautius as general by order of claudius caesar , brought an army into britany . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( so saith dio ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is , the inhabitants at that time were subject to divers kings of their own . he overcame in battel prince cradock and togodunus the two sons of king cunobellinus ; afterwards claudius himself came over into the island , fought a set battel ; and having obtained the victory , he took maldon in essex , the royal city of cunobellinus , disarmed the inhabitants , left the government of them , and the subduing of the rest of the people to plautius , and went back himself to ro●e , where he was honoured with a most splendid and stately triumph . for this was he , of whom seneca the tragoedian speaks : cuique britanni terga dedêre , ducibus nostris ante ignoti , jurisque sui . — which may be thus englished , to whom bold britans turn'd their back , t' our captains formerly unknown , and govern'd by laws of their own . the island being reduced great part under the romans power , and into a lieutenancy , a colony is brought down to maldon ( in essex ) as tacitus and dio has it , with a strong party of veterans , and is planted up and down in the countrey they had taken , as a supply against those that would rebel , and to train up their fellows or allies to the duties of the laws . and old stone speaks thus of that colony , cn . munatius m. f. pal . aurelius . bassus proc . aug . praef . fabro . praef . coh . iii. sagitariorum . praef . coh . iterum . ii. asturum . censitor . civium . romanorum . coloniae . victricensis . quae . est. in. britannia . camaloduni . besides , there was a temple built and dedicated to claudius ara ( or as lipsius reads it arra ) aeternae dominationis ; that is , the altar or earnest of an eternal government . but you will say , all this makes little to our purpose : yes , very much ; as that which brings from abroad the roman orders , laws , fashions , and every thing into britany . near st. albans , a town in hartfordshire , there was sure enough the seat of cassibellinus called verulams , and the burghers , as we learn from agellius , were citizens of rome infranchized , out of their corporations , using their own laws and customs , only partaking the same honorary priviledge with the people of rome : but we have the colony of maldon in essex , which upon another nearer account had all the rights and orders of the people of rome derived to it from the freedom of that city , and was not at its own disposal , or to use its own laws . and the like was practised in this island in more than one place . the reverse of sev●rus the emperours coyn shews it . col . eboracum . leg . vi. victrix . and the coyn of septimius geta on either side . col . divana . leg . xx. victrix . this old divana ( which is the very same with deunana in ptolomy ) if you make it english , is chester the chief city of the cornavians , that is , the people of cheshire , staffordshire , shropshire , &c. again , there is a piece of and old stone in the walls of bath in somersetshire near the north gate has this inscription upon it , dec . coloniae . glev. vixit . ann. lxxxvi . glevum was that then which glocester is now . it may be colchester had the same right of priviledge , unless you had rather derive its name from the river coln that runs aside it . in a word ( sayes seneca to albina ) how many colonies has this people of ours sent into all provinces ? where ever the roman conquers , he dwells . see what abundance there was of them in british province ; whose form of government , and other laws , that they were different from that of the britans , we may plainly perceive from that very form of their constitution after their detachment ; which i shall present you with out of that famous antiquary , and every way most learned and celebrious person justus lipsius . their manner and method was ( sayes he ) that the lands should be divided to man by man , and that by three grave discreet persons , whom they used to chuse for this purpose , who did set out their particular seats and grounds , and the town it self ( if there were one to be built ) and prescribed them rules and rights , and the form as it were of a new common-wealth : yet in that manner , that all things might bear a resemblance of rome and the mother city ; and that in the very places themselves the courts of law , the capitols , the temples , the state-houses or town-halls might be according to that model , and that there might be in the government or magistracy two persons as bailiffs in most places , like the two consuls at rome ; in like manner surveyors and scavengers , aldermen of the wards and headboroughs , instead of a senate or common council as we may call it . this is lipsius his account ; so that beatus gildas is not much out of the way , when he sayes , it was reckoned not britannia , but romania . and an ancient copy of verses , which joseph scaliger has rescued out of its rust and mouldiness , has it : mars pater , & nostrae gentis tutela quirine , et magno positus caesar uterque polo ; cernitis ignotos latiâ sub lege britannos , &c. that is , in english , sire mars , and guardian of our state quirinus hight after thy fate , and caesars both plac'd near the pole with your bright stars ye do behold , and th' unknown britans aw , t' observe the roman law. the stately seraglio or building for the emperours women at venta belgarum ( a city at this day called winchester ) and other things of that kind i let pass . in the time of the emperours v●spasian , titus and domitian , julius agricola , tacitus his wives father , was lord deputy lieutenant here . he encouraged the barbarous people to civil fashions , insomuch that they took the roman habit for an honour , and almost every body wore a gown ; and as juvenal has it in his satyr , gallia causidicos docuit facunda britannos . the british lawyers learnt of yore , from the well-spoken french their lore : t' imply , hereafter we should sée our laws themselves in french would be . chap. xvi . in commodus his time king lucy embraces the christian religion , and desires eleutherius then pope , to send him the roman laws . in stead of heathen priests , he makes three arch-bishops and twenty eight bishops . he endows the churches , and makes them sanctuaries . the manner of government in constantine's time , where ends the roman account . in commodus the emperours time the light of the gospel shone afresh upon the britans . lucius the first king of the christians ( for the romans , as in other places , so in britany , made use of even kings for their instruments of slavery ) by the procurement of fugatius and damianus did happily receive from pope eleutherius the seal of regeneration ( that is , baptism ) and the sacred laws of eternal salvation . he had a mind also to have the civil laws thence , and desired them too . ovid long since had so prophesied of rome : juráque ab hàc terrâ caetera terra petet . that is , and from this countrey every other land their laws shall fetch , and be at her command . now eleutherius wrote him this answer : you have desired of us , that the roman and caesarean laws may be sent over to you ; that you may , as you desire , use them in your kingdom of britanny . the roman and caesarean laws we may at all times disprove of , but by no means the laws of god. for you have lately through divine mercy taken upon you in the kingdom of britanny the law and faith of christ ; you have with you in the kingdom both pages of holy writ , ( to wit , the old and new testament ) . out of them , in the name and by the favour of god , with the advice of your kingdom , take your law , and by it through gods permission , you may govern your kingdom of britanny . now you for your part are gods vicegerent in your kingdom . howsoever by injury of time the memory of this great and illustrious prince king lucy hath been imbezill'd and smuggled , this upon the credit of the ancient writers appears plainly , that the pitiful fopperies of the pagans , and the worship of their idol-devils did begin to flag , and within a short time would have given place to the worship of the true god , and that three arch-flamens and twenty eight flamens , i. e. arch-priests , being driven out , there were as many arch-bishops and bishops put into their rooms ( the seats of the arch-bishops were at london , at york and at caerleon in wales ) to whom , as also to other religious persons , the king granted possessions and territories in abundance , and confirmed his grants by charters and patents . but he ordered the churches ( as he of monmouth and florilegus tell us ) to be so free , that whatsoever malefactor should fly thither for refuge , there he might abide secure , and no body hurt him . in the time of constantine the emperour ( whose pedigree most people do refer to the british and royal blood ) the lord president of france was governour of britanny . he together with the rest , those of illyricum or slavonia , of the east and of italy , were appointed by the emperour . in his time the lord deputy of britanny , ( whose blazonry was a book shut with a green cover ) was honoured with the title of spectabilis . there were also under him two magistrates of consular dignity , and three chief justices ( according to the division of the province into five parts ) who heard and determined civil and criminal causes . and here i set up my last pillar concerning the britans and the roman laws in britanny , so far forth as those writers which i have , do supply me with matter . chap. xvii . the saxons are sent for in by vortigern against the scots and picts , who usurping the government , set up the heptarchy . the angles , jutes , frisons , all called saxons . an account of them and their laws , taken out of adam of bremen . afterwards the scots and picts making incursions on the north , and daily havock and waste of the lands of the provincials , ( that is , those who were under the roman government ) they send to desire of the romans some auxiliary forces . in the mean time , rome by a like misfortune , was threatned with imminent danger , by the fury of the goths : all italy was in a fright , in an uproar . for the maintaining of whose liberty , the empire being them more then sinking , was with all its united strength engaged and ready prepared . so this way the britans met with a disappointment . wherefore vortigern , who was governour in chief , sent for supplies from the neighbouring germans , and invited them in . but according to the proverb , carpathius leporem ; he caught a tartar : for he had better have let them alone where they were . upon this account , the saxons , the angles , the jutes , the frieslanders arrive here in their gally-foists in the time of theodosius the younger . at length being taken with the sweetness of the soil ( a great number of their countrey-men flocking over after them , as there were at that time fatal flittings and shiftings of quarters all the world over ) and spurred on with the desire of the chief command and rule , having struck up a league with the picts , they raise a sad and lamentable war against their new entertainers , in whose service they had lately received pay : and to make short , in the end having turned the britans out of their ancestors seats they advanced themselves into an heptarchy of england , so called from them . albeit they pass by various names , yet in very deed they were all of them none other but saxons . a name at that time of a large extent in germany ; which was not , as later geographers make it , bounded with the rivers of the elb , of the rhine and the oder , and with the confines of hessen and duringen , and with the ocean ; but reached as far as into the cimbrian chersonesus now called jutland . it is most likely , that those of them that dwelt by the sea-side , came over by ship into britanny . to wit , at first hors●s and hengistus came over out of batavia , or the low countreys , with a great company of saxons along with them ; after that out of jutland the jutes ( for janus douza proves , that the danes under that appellation seised our shores , in the very beginning of the saxon empire : ) out of angela , according to camden about flemsburg a city of sleswick , came the angles ; out of friseland ( procopius is my author ) the frizons . one may without any wrong call them all saxons ; unless fabius quastor aethelwerd also did his nation injury , by calling them so . he flourished six hundred and fifty years ago , being the grand-child or nephew of king aethelulph , and in his own words discourses , that there was also a people of the saxons all along the sea-coast from the river rhine up to the city donia , which is now commonly called denmark . for it is not proper here to think of denmark in the neighbouring territories of vtrecht and amsterdam , by reason of the narrowness of that tract . those few observes then , which adam of bremen hath copied out of einhard concerning the saxons , forasmuch as our ancient saxons i suppose , are concerned in them , i here set down in this manner and order . chap. xviii . the saxons division of their people into four ranks . no person to marry out of his own rank . what proportion to be observed in marriages according to policy . like to like the old rule . now matrimony is made a matter of money . . the whole nation consists of four different degrees or ranks of men ; to wit , of nobles , of free-men born , of free-men made so , and of servants or slaves . and nithard speaking of his own time , has divided them into ethelings , that is , nobles , frilings , that is , free-men , and lazzos , that is , servants or slaves . it was enacted by laws , that no rank in cases of matrimony do pass the bounds of their own quality ; but that a noble-man marry a noble-woman , a free-man take a free-woman , a bond-man made free be joyned to a bond-woman of the same condition , and a man-servant match with a maid-servant . and thus in the laws of henry duke of saxony , emperour elect , concerning justs and tournaments , when any noble-man had taken a citizen or countrey-woman to wife , he was forbid the exercise of that sport to the third generation , as sebastian munster relates it . the twelve tables also forbad the marriage of the patricii or nobles with the plebeians or commons ; which was afterwards voided and nulled by a law which canuleius made , when he was tribune of the people . for both politicians and lawyers are of opinion , that in marriages we should make use of not an arithmetical proportion , which consists of equals ; nor of a geometrical one , which is made up of likes ; but of a musical one , which proceeds from unlike notes agreeing together in sound . let a noble-man that is decayed in his estate , marry a commoner with a good fortune ; if he be rich and wealthy , let him take one without a fortune : and thus let love , which was begot betwixt wealth and poverty , suite this unlikeness of conditions into a sweet harmony ; and thus this disagreeing agreement will be fit for procreation and breed . for he had need have a good portion of his own , and be nearer to crassus than irus in his fortunes , who , by reason of the many inconveniencies and intolerable charges of women , which bring great dowries , doth , with megadorus in plautus , court a wife without a portion ; according to that which martial sayes to priscus : vxorem quare locupletem ducere nolim quaeritis ? vxori nubere nolo meae . inferior matrona suo sit , prisce , marito : non aliter fiunt foemina virque pares . which at a looser rate of translation take thus , should i a wife with a great fortune wed , you 'l say , i should be swéetly brought to bed . such fortune will my liberty undo . who brings estate , will wear the bréeches too . unhappy match ! where e're the potent bride hath the advantage wholly on her side . blest pairs ! when the men sway , the women truckle , there 's good agréement , as 'twixt thong and buckle . and according to that of the greek poet , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . take , if you 'l be rul'd by me , a wife of your own degrée . but there is little of our age fashioned to the model of this sense : height of birth , vertue , beauty , and whatsoever there was in pandora of good and fair , do too too often give place to wealth ; and that i may use the comedians word , to a purse crammed with money . and as the merry greek poet sayes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . to be noble or high-born , is no argument for love : good parts of bréeding lye forlorn ; 't is money only they approve . i come back now to my friend adam . chap. xix . the saxons way of judging the event of war with an enemy . their manner of approving a proposal in council , by clattering their arms. the original of hundred-courts . their dubbing their youth into men. the priviledge of young lads nobly born . the morganheb or wedding-dowry . . they take a prisoner of that nation , with which they are to have a war , by what way soever they can catch him , and chose out one of their own countrey-men ; and putting on each of them the arms of their own countrey , make them two fight together , and judge of the victory , according as the one or the other of them shall overcome . this very thing also tacitus himself hath , to whom einhard sends his reader . for though he treat in general of the germans , yet nevertheless without any question , our saxons brought over along with them into this island very many of those things , which are delivered to us by those who have wrote concerning the customs of the germans . among which , take these following . . in councils or publick assemblies , the king or prince , ( i. e. a chief person ) according as every ones age is , according to his nobility , according to his reputation in arms , according to his eloquence , has audience given him , where they use the authority of perswading , rather than the power of commanding . if they dislike what he sayes , they disapprove it with a hum and a rude noise . if they like the proposal , they shake and rustle their spears or partisans together . it is the most honourable kind of assent , to commend the speaker with the clattering of their arms. from hence perhaps arose the ancient right of wapentakes . . there are also chosen at the same councils or meetings , chief persons ( as justices ) to administer law in the several villages and hamlets . each of those have a hundred associates out of the commonalty for their counsel and authority . this is plainly the pourtraict of our hundreds , which we still have throughout the counties of england . . they do nothing of publick or private affair , but with their arms on ; but it is not the custom for any one to wear arms , before the city or community approve of him as sufficient for it . then in the council it self , either some one of the princes or chief persons , or the father of the young man or some kinsman of his in token of respect , give him a shield and a partisan . this with them stands for the ceremony of the gown ; this the first honour of youth arriving at manhood ; before this be done , they seem but a part of the family : but after this is over , they are a part of the common-wealth . the right ancient pattern of dubbing knights , if any where else to be found . julius caesar sayes almost the very same thing of the gauls . they do not suffer their children , to come in publick to them , till they be come to age , that they be able to undergo the duties of war. . a remarkable nobleness of descent , or the high merits of their fathers , procure even to young lads the dignity and esteem of a prince . for , as the philosopher sayes , we owe this regard to vertues , that we respect them , not only whilst present , but also when they are taken away out of our sight ; and in the wife mans account , the glory of parents , is the honour of their children . . the wife doth not bring the husband a portion , but the husband gives the wife a dowry . contrary to what the roman law saith , that custom is still in use with the english , as morgangheb in other places . chap. xx. their severe punishments of adultery , by maiming some parts of the body . the reason of it given by bracton . the like practised by danes and normans . . the husband if his wife playes the whore , cuts off her hair , strips her naked , and turns her out of doors in presence of her kindred , and drives her through the streets , lashing or beating her as she goes along . they were formerly in this northern part of the world , most severe punishers of adultery , and they ahd such laws as were — ipsis marti venerique timenda ; that is , such as would put mars and venus in a trance of fear , amidst their dalliance . king knute ordered , that a wife , who took another passenger on board her than her husband , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . oft times i th' nights away she hies , and into other harbour flyes . ( well speed thee and thine , fair venus ; nor do i willingly bring these ill tidings to thy tender ducklings . ) should have her nose and ears cut off . i remember , antinous in homer threatens irus with the chopping off his nose , ears and privities ; and vlysses inflicts that very punishment upon his goat-herd melanthius , for his having been too officious in his pimping attendance upon the gallants , that haunted the house in his absence . how any one should deserve this penalty , which so disfigures nature , i do not yet sufficiently understand . heraclid●s ponticus informs us , that law-makers were wont to maim that part especially which committed the misdemeanour . in testimony of this , he mentions tytius his liver as the shop and work-house of lust ; and it were not hard matter to bring in other more pertinent instances ; and pereant partes , quae nocuere . saith some poet , the parts that did the hurt , let them e'en suffer for 't . however it was not melanthius his ears , and by no means his nose that offended ; no nor the good wives neither that commits the fact : as martial the merry wag tells a certain husband , quis tibi persuasit nares abscindere moecho ? non hàc peccata est parte , marite , tibi . that is , with modesty to render it , what made thee , angry man , to cut the nose of him , that went to rut ? 't was not that part , that did th' offence : therefore to punish that , what sense ? but who doth not see , that a woman hath no other parts of her body so lyable to maiming or cutting off ? both those parts make much for the setting her off ; nor are there any others in the whole outward frame of the microcosm , which being cut off , do either more disparage beauty , or withal less afflict the animal vertue , as they call it , by which life is maintain'd . now for those , who of old time did unluckily , that is , without the favour of those heathen gods prema and mutinus , to whose service they were so addicted , offer violence to untainted chastity ; the loss of members did await the lust of such persons , that there might be member for member ( they are the words of henry bracton , a very ancient writer of our law , and they are clear testimonies , that the english have practised the law of like for like ) quia virgo , cùm corrumpitur , membrum amittit , & ideò corruptor puniatur in eo in quo deliquit : oculos igitur amittat propter aspectum decoris , quo virginem concupivit ; amittat & testiculos , qui calorem stupri induxerunt . so long ago , aut linguam aut oculos aut quae tibi membra pudorem abstulerant , ferro rapiam . sayes progne to her sister philomele , speaking of the filthy villain tereus , who had ravished her , i 'le cut out his eyes or tongue , or those parts which did thée the wrong . and plautus in his play called paenulus , sy. facio quod manifesto moechi haud ferme solent . mi. ruid id est ? sy. referovasa salva . i remember i have read that jeoffry de millers a nobleman of norfolk , for having inticed the daughter of john briton to an assignation , and ingaged her with venereal pledges ; being betrayed and trepann'd by the baggage , underwent this execution ; and suffered besides , whatso●ver a fathers fury in such a case would prompt him to do : but withal , that king henry the third was grievously offended at it , dis-inherited briton , banished him , and gave order by proclamation , that no one should presume , unless it were in his wives case , to do the like . but these passages are of later date , and since the normans time and from them ; unless you will bring hither that which we meet with in alured's law concerning a man and a maid-servant . from whence we slide back again to tacitus . chap. xxi . the manner of inheriting among them . of deadly feuds . of wergild or head-mony for murder . the nature of country-tenures and knights fees. . every ones children are their heirs and successors , and there was no will to be . nor was it lawful with us down to our grandfathers time , to dispose of country farms or estates by will , unless it were in some burroughs , that had a peculiar right and priviledge of their own . if there be no children , then , says he , the next of kin shall inherit ; brethren , or uncles by the fathers or mothers side . those of the ascending line are excluded from inheritances , and here appears the preference of the fathers side : a law at this very day usual with the english. . to undertake the enmities rather than the friendships , whether of ones father or kinsman , is more necessary . capital enmities , which they call deadly feuds , are well known to our northern people . nor do they hold on never to be appeased : for even murder is expiated by a certain number of some head of cattel , and the whole family of the murdered person receives satisfaction . murders formerly were bought off with head-mony called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; though one had killed a nobleman , nay the king himself , as we may see in athelstan's constitutions : but good manners , i suppose , have prevailed above laws . . the lord imposes upon his tenant a certain quantity of corn or cattel , or clothes . we see here clearly enough the nature of country land-holders , fees or tenures . as to military or knights fees , give me leave to set that down too . dionysius halicarnasseus gives us a very ancient draught and model of them in the trojans and aborigines : florus in the cymbrians , and lampridius in alexander severus . both the northern people and the italians do owe them to the huns and lombards ; but these later according to a more modern form . let these things suffice out of cornelius tacitus , which belong to this head. chap. xxii . since the return of christianity into the island , king ethelbert's law against sacriledge . thieves formerly amerced in cattel . a blot upon theodred the good , bishop of london , for hanging thieves . the country called engelond by order of king egbert , and why so called . the laws of king ina , alfred , ethelred , &c. are still to be met with in saxon. those of edward the confessor , and king knute the dane , were put forth by mr. lambard in his archaeonomia . before that the christian doctrine had driven out and banished the saxon idolatry , all these things i have hitherto been speaking of , were in use . ethelbert ( he that was the first king , not only of kent , but of all england , except northumberland ) having been baptized by austin the monk , the apostle , as some call him , of the english ) amongst other good things which by counsel and grant he did to his nation , ( 't is venerable bede speaks these words ) he did also with the advice of wise men , appoint for his peoples use the orders of their proceedings at law , according to the examples of the romans . which having been written in the english tongue ( says he ) are hitherto , or to this time kept and observed by them . among which orders or decrees he set down in the first place , after what manner such an one should make amends , who should convey away by stealth any of those things that belonged to the church , or to a bishop , or to the rest of the orders . in the laws of some that came after him , as those of king alured ( who cull'd out of ethelbert's acts to make up his own ) and those of king athelstan , thieves make satisfaction with mony ; accordingly as tacitus says of the germans , that for lighter offences those that were convicted are at the rate of their penalties amerced such a number of horses or other cattel . for , as festus hath it , before brass and silver were coyned , by ancient custom they were fined for their faults so much cattel : but those who medled with any thing sacred , we read had that hand cut off with which they committed the theft . well! but am i mistaken , or was sacriledge even in the time of the saxon government punisht as a capital crime ? there is a passage of william of malmsbury , in his book de gestis pontificum , that inclines me to think so . speaking of theodred , the bishop of london when athelstan was king , he says , that he had among the common people got the sirname of theodred the good ; for the eminence of his virtues : only in one thing he fell short , which was rather a mistake than a crime , that those thieves which were taken at st. edmunds , whom the holy martyr had upon their vain attempts tied with an invisible knot ( he means st. edmundsbury in suffolk ; which church these fellows having a design to rob , are said by miracle to have stood still in the place , as if they had been tied with cords : these thieves isay ) were by his means or sufferance given up to the severity of the laws , and condemned to the gallows or gibbet . let not any one think that in this middle age , this gallows or gibb●t i spoke of , was any other thing than the roman furca , upon which people hang and are strangled till they die . . egbert king of the west-saxons ( i make use of camdens words ) having gotten in four kingdoms by conquest , and devour'd the other two also in hope , that what had come under the government of one , might likewise go under one name ; and that he might keep up the memory of his own people the angles , he gave order by proclamation , that the heptarchy which the saxons had possest , should be called engelond . john carnotensis writes , that it was so called from the first coming in of the angles ; and another some body says it was so named from hengist a saxon prince . there are a great many laws of king ina , alfred , edward , athelstan , edmund , edgar , ethelred , and knute the dane , written in the saxon language ; which have lasted till these very times . for king knute gave order ( 't is william of malmsbury speaks ) that all the laws which had been made by former kings , and especially by his predecessor ethelred , should under pain of his displeasure and a fine , be constantly observed : for the keeping of which , even now in the time of those who are called the good , people swear in the name of king edward ; not that he appointed them , but that he observed them . the laws of edward , who for his piety has the sirname of confessor , are in readers hands . these of the confessor were in latin ; those others of knute were not long since put into latin by william lambard a learned man , and one very well vers'd in antiquity ; who had recovered them both , and published the saxon original with his translation over against it , printed by john day at london , anno . under the title of archaeonomia , or a book concerning the ancient laws of the english. may he have a good harvest of it as he deserves . from historians let us borrow some other helps for this service . chap. xxiii . king alfred divides england into countyes or shires , and into hundreds and tythings . the original of decenna or court-leet , friburg , and mainpast . forms of law , how people were to answer for those whom they had in borgh or mainpast . . ingulph the abbot of crowland , writing of king alfred says : that he was the first of all that changed the villages or lordships and provinces of all england into counties or shires . before that it was reckoned and divided according to the number of hides or plough-lands by little districts or quarters . he divided the counties into hundreds and tythings ; ( it was long before that honorius , arch-bishop of canterbury , had parted the country into parishes ; to wit , anno . ) that every native home-born lawful man , might be in some hundred and tything ( i mean whosoever was full twelve years of age ) and if any one should be suspected of larceny or theft , he might in his own hundred or ward , being either condemned or giving security ( in some manuscripts it is being acquitted ) he might either incur or avoid the deserved penalty . william of malmsbury adds to this , that he that could not find security was afraid of the severity of the laws ; and if any guilty person , either before his giving security or after , should make his escape , all of that hundred and tything should incur the kings fine . here we have the original of decenna or a court-leet , of friburg , and perhaps of mainpast : which things though grown out of use in the present age ; yet are very often mentioned , not only in the confessors laws , but also in bracton and in other records of our law. what decenna was , the word it self does almost shew : and ingulph makes out , that is , a dousin or courtleet . friburg or borgh signifies a surety ; for fri is all one as free . he who passes his word for anothers good behaviour , or good abearing , and is become his security ; is said to have such a one in his borgh : being ingaged upon this account to the government , to answer for him if he misbehave himself . and hence it is , that our people in the country call those that live near them , or as i may say at the next door , neighbours : when yet those that would find out the reason why the people of liege in the low countries are called eburones , do understand that burgh , which is the same as borgh , to stand for a neighbour ; and this is plainly affirmed by pontus heuterus , in other originations of the like kind . manupastus is the same thing as a family : as if one would say , fed by hand . just in the like sence julius pollux , in greek terms a master of a family , trophimos ; that is , the feeder of it . that the rights of friburg and manupast were in use with the english some five or six generations ago , is manifest . curio a priest is fined by edward the third , because there had been one of his family a murderer . and the ancient sheets concerning the progress or survey of kent under edward the second , do give some light this way . ralph a milner of sandon , and roger a boy of the said ralph in borgh of * twicham ; ( critick whoever you are , i would not have you to laugh at this home spun dialect ) came by night to the mill of harghes , and then and there murdered william the milner ; and carried away his goods and chattels and presently fled : it is not known whither they are gone , and the jury mistrusts them the said ralph and roger concerning the death of the aforesaid william ; therefore let them be driven out and out-lawed . they had no chattels , but the aforesaid ralph was in borgh of simon godwin of tw●cham , who at present has him not ; and therefore lies at mercy : and roger was not in borgh , but was of the mainpast of robert arch-bishop of canterbury deceased ; there being no engleshire presented , the verdit is , the murder upon the hundred . the first discoverer of it and three neighbours are since dead ; and thomas broks , one of the neighbours , comes and is not mistrusted ; and the villages of wimesbugewelle and egestoun did not come fully to the coroners inquest and are therefore at mercy . and about the same time , solomon ro● of ickham came to the house of alice the daughter of dennis w●●nes , and beat her and struck her upon the belly with a staff ; so that she dyed presently . and the foresaid solomon presently fled , and the jury mistrust him concerning the death aforesaid ; therefore let him be driven out and be outlawed . he had no chattels , nor was he in borgh because a vagrant : the verdit , the murder lies upon the hundred . &c. and according to this form more such instances . but let it suffice to have hinted at these things , adding out of henry bracton ; if out of frank-pledge an offender be received in any village , the village shall be at mercy ; unless he that fled be such an one , that he ought not to be in leet and frank-pledge ; as nobles , knights , and their parents ( their eldest sons it is in the yearly records of law in edward the first 's time ; and we may take in daughters too ) a clergy-man , a freeman , ( i fear this word has crept in ) and the like , according to the custom of the country ; and in which case he , of whose family and mainpast they were , shall be bound in some parts , and shall answer for them ; unless the custom of the country be otherways , that he ought not to answer for his mainpast , as it is in the county of hertford , where a man does not answer for his mainpast for any offence , unless he return after felony , or he receive him after the offence committed , as in the circuit of m. de pateshull in the county of hertford , in such a year of king henry the fifth . in sooth these usages do partly remain in our tythings and hundreds , not at all hitherto repealed or worn out of fashion . chap. xxiv . king alfred first appointed sheriffs . by duns scotus his advice , he gave order for the breeding up of youth in learning . by the way , what a hide of land is . king edgar's law for drinking . prelates investiture by the kings ring and staff. king knute's law against any english-man that should kill a dane . hence englescyre . the manner of subscribing and sealing till edward the confessor's time . king harald's law that no welch-man should come on this side offa's dike with a weapon . . the governors of provinces who before were styled deputy-lieutenants ( we return to ingulph and king alfred ) he divided into two offices ; that is , into judges , whom we now call justices , and into sheriffs , who do still retain the same name . away then with polydore virgil , who fetches the first sheriffs from the norman conqueror . . john scot erigena advised the king , that he would have his subjects instructed in good letters ; and that to that end he would by his edict take care of that which might be for the benefit of learning . whereupon he gave strict order to all freemen of the whole kingdom , who did at least possess two hides of land , that they should hold and keep their children till the time of fifteen years of their age , to learning ; and should in the mean time diligently instruct them to know god. a hide of land , that i may note it once for all , and a plough - land ( that is as much land as can be well turned up and tilled with one plough every year ) are read as synonymous terms of the same sence , in huntingdon , matthew paris , thomas walsingham ; and expresly in a very old charter of dunstan . although some take a hide for an hundred acres , and others otherwise ; do thou , if thou hadst rather so do , fansie it to be as much ground as one can compass about with a bull-hide cut into thongs , as queen dido did at carthage : there are some who are not unwilling to have it so understood . . king edgar like a king of good fellows , or master of revels , made a law for drinking . he gave order that studs or knobs of silver or gold ( so malmsbury tells us ) should be fastned to the sides of their cups or drinking vessels , that when every one knew his mark or boundary , he should out of modesty , not either himself covet or force another to desire more than his stint . this is the only law before the first parliament under king james , has been made against those swill-bowls , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , swabbers of drunken feasts and lusty rowers , in full brimm'd rummers that do ply their dars . who by their carowses ( tipling up nestor's years , as if they were celebrating the goddess anna perenna ) do at the same time drink others healths , and mischief and spoil their own and the publick . . there was no choice of prelates ( these are the words of ingulph again ) that was merely free and canonical ; but the court conferred all dignities , as well of bishops as of abbots , by the kings ring and staff , according to his good pleasure . the election or choice was in the clergy and the monks ; but they desired him whom they had chosen , of the king. edmund , in king ethelred's time , was after this manner made bishop of the holy island on the coast of northumberland : and king edgar in his patent , which he signed to the abby of glastenbury , retained to himself and his heirs , the power of bestowing the pastoral staff to the brother elect. . to as many as king knute retained with him in england ( to wit , to the danes ; for by their hands also was the scepter of this kingdom managed ) it was granted , that they should have a firm peace all over ; so that if any of the english killed any of those men , whom the king had brought along with him ; if he could not clear himself by the judgment of god ( that is , by ordeal ) to wit , by water and burning hot iron , justice should be done upon him : but if he run away and could not be taken , there should be paid for him sixty six marks ; and they were gathered in the village where the party was slain , and therefore because they had not the murderer forth coming ; and if in such village by reason of their poverty , they could not be gathered , then they should be gathered in the hundred , to be paid into the kings treasure . in this manner writes henry bracton , who observes that hence the business of englishshire came into fashion in the inquests of murder . . hand-writings ( i.e. patents and grants ) till edward the confessors time , were confirmed by the subscriptions of faithful persons pres●nt ; a thing practised too among the britans in king arthur's time , as john price informs us out of a very ancient book of the church of landaff . those subscriptions were accompanied with golden crosses , and other sacred seals or like stamps . . king harald made a law , that whosoever of the welch should be found with a weapon about him without the bound which he had set them , to wit , offa's dike ; he should have his right hand cut off by the kings officers . this dike our chorographer tells us was cut by offa king of the mercians , and drawn along from the mouth of the river dee to the mouth of the river wye for about eighty miles in length , on purpose to keep the english and welch asunder . chap. xxv . the royal consorts great priviledge of granting . felons estates forfeited to the king. estates granted by the king with three exceptions of expedition , bridge , and castle . the ceremony of the kings presenting a turf at the altar of that church , to which he gave land. such a grant of king ethelbald comprized in old verse . the donations or grants of the royal consort , though not by the kings authority , contrary to what the priviledge of any other wife is , were ratified also in that age , as they were by the roman law : which by the patent of aethelswith , wife to burghred king of the mercians , granted to cuthwuls in the year . hath been long since made out by sir edward coke , lord chief justice of the common pleas : where also king ethelred's ancient charter proves , that the estates of felons ( those i mean who concern themselves in burglaries and robberies ) are forfeited to the king. having already mentioned those hand-writings or grants , which are from one hand and t'other , conveyances of tenure ( the fewel of quarrels ) i have a mind , over and above what has been said , to set down also these remarks , as being to our purpose ; and taken from the saxons . as for instance , that those are most frequent whereby estates are conveyed to be held with the best and fairest right ; yet most commonly these three things excepted , to wit , expedition , repairing of bridges , and building of castles : and that those to whom the grants were made , were very seldom acquitted upon this account . these three exceptions are noted by the term of a three-knotted necessity in an old charter , wherein king cedwalla granted to wilfrid ( the first bishop of shelsey in sussex ) the village of paganham in the said county . for though in the grants of king ethelulph the church be free ( says ingulph ) and there be a concession of all things for the release of our souls , and pardon of our sins to serve god alone without expedition , and building of bridge , and fortifying of castle ; to the intent that the clergy might wholly attend divine service : yet in that publick debate of parliament , in the reign of henry the third , concerning the ancient state , freedom , and government of the english church ; and concerning the hourly exactions of the pope and the leeches , jugglers and decoys of rome , that strolled up and down the country to pick peoples pockets , to the great prejudice of the common-wealth ; they did indeed stand for the priviledge of the church , and produced as witnesses thereof the instruments and grants of kings ; who nevertheless were not so much inclined to countenance that liberty of the church , but that , as matthew paris observes , they always reserved to themselves for the publick advantage of the kingdom , three things ; to wit , expedition , and the repairing or making up of bridge or castle ; that by them they might withstand the incursions of the enemy . and king e●helbald hath this form : i grant that all the monasteries and churches of my kingdom be discharged from publick customs or taxes , works or services , and burdens or payments or attendances , unless it be the building and repairing of castles or bridges , which cannot be released to any one . i take no notice how king ethelred the twelfth perhaps ( but by no means the fifteenth , wherein an historian of ours has blundred ) hath signed the third year of his reign by the term of an olympiad , after the manner of the greek computation or reckoning : as likewise i pass other things of the like kind , which are many times used and practised according to the fancy of the clerks or notaries . however the last words , which are the close of these grants and patents , are not to be slighted . these we may see in that of cedwalla , king of the south-saxons , made to theadore arch-bishop of canterbury , in the year . thus . for a further confirmation of my grant , i cedwalla have laid a turf of the land aforesaid upon the holy altar of my saviour : and with my own hand , being ignorant of letters , have set down and expressed the mark or sign of the holy cross. concerning withred and a turf of land in kent , camden has the same thing ; and king ethelulph is said to have offered his patent , or deed of gift , on the altar of the holy apostle st. peter . for a conclusion , i know no reason why i may not set underneath , the verses of an old poet , wherein he hath comprised the instrument or grant of founding an abby , which ethelbald , king of the mercians , gave to kenulph abbot of crowland : verses , i say , but such as were made without apollo's consent or knowledge . istum kenulphum si quis vexaverit anglus , rex condemno mihi cuncta catella sua . inde meis monachis de damnis omnibus ultrà vsque satisfaciat ; carcere clausus erit . adsunt ante deum testes hujus dationis anglorum proceres pontificesque mei . sanctus * guthlacus confessor & anachorita hic jacet , in cujus auribus ista loqu●r . oret pro nobis sanctissimus iste sacerdos , ad tumbam cujus haec mea don● dedi . which in rhyme dogrel will run much after this hobling rate . if any english vex this kenulph , shall i king condemn to me his chattels all . thenceforth , until my monks he satisfie , for damages , in prison he shall lye . witnesses of this gift here in gods fight are english peers and prelates of my right ▪ saint guthlac confessor and anchoret , lies here , in whose ears these words i speak yet . may he pray for us that most holy priest , at whose tomb these my gifts i have addrest . thus they closed their donations or grants ; thus we our remarks of the saxons , being now to pass to the normans . the second book of the english janus . from the norman conquest , to the death of king henry ii. chap. i. william the conquerour's title . he bestows lands upon his followers , and brings bishops and abbots under military service . an account of the old english laws , called merchenlage , danelage and westsaxen-lage . he is prevailed upon by the barons , to govern according to king edward's laws , and at s. albans takes his oath so to do . yet some new laws were added to those old ones . william duke of normandy upon pretence of a double right , both that of blood ( inasmuch as emme the mother of edward the confessor , was daughter to richard the first duke of the normans ) and withal that of adoption , having in battel worsted harald the son of godwin earl of kent , obtain'd a large inheritance , and took possession of the royal government over all england . after his inauguration he liberally bestowed the lands and estates of the english upon his fellow-soldiers ; that little which remained ( so saith matthew paris ) he put under the yoke of a perpetual servitude . upon which account , some while since the coming in of the normans , there was not in england except the king himself , any one , who held land by right of free-hold ( as they term it : ) since in sooth one may well call all others to a man only lords in trust of what they had ; as those who by swearing fealty , and doing homage , did perpetually own and acknowledge a superior lord , of whom they held , and by whom they were invested into their estates . all bishopricks and abbacies , which held baronies , and so far forth had freedom from all secular service ( the fore-cited matthew is my author ) he brought them under military service , enrolling every bishoprick and abbacy according to his own pleasure , how many souldiers he would have each of them find him and his successors in time of hostility or war. having thus according to this model ordered the agrarian law for the division and settlement of lands , he resolved to govern his subjects ( we have it from gervase of tilbury ) by laws and ordinances in writing : to which purpose he proposed also the english laws according to their tripartite or threefold distinction ; that is to say , merchenlage , danlage and westsaxenlage . merchenlage , that is , the law of the mercians ; which was in force in the counties of glocester , worcester , hereford , warwick , oxford , chester , salop and stafford . danlage , that is , the law of the danes ; which bore sway in yorkshire , derby , nottingham , leicester , lincoln , northampton , bedford , buckingham , hertford , essex , middlesex , norfolk , suffolk , cambridge , huntingdon . westsaxenlage , that is , the law of the west-saxons ; to which all the rest of the thirty two counties ( which are all that malmesbury reckons up in ethelred's time ) did belong ; to wit , kent , sussex , surrey , berks , southampton , winton , somerset , dorset and devon. some of these english laws he disliked and laid aside ; others he approved of , and added to them , some from beyond sea out of neustria ( he means normandy , which they did of old , term neustria corruptly , instead of westrich , as being the more western kingdom of the franks , and given by charles the simple to rollo for his daughter gilla her portion ) such of them as seemed most effectual for the preserving of the kingdoms peace . this saith he of tilbury . now this is no rare thing among writers for them to devise , that william the conqueror brought in as it were a clear new face of laws to all intents and purposes . 't is true , this must be acknowledg'd , that he did make some new ones ( part whereof you may see in lambard's archaeonomia , and part of them here subjoyned ) but so however that they take their denomination from the english , rather than from the normans ; although one may truly say , according to what lawyers dispute , that the english empire and government was overthrown by him . that he did more especially affect the laws of the danes ( which were not much unlike to those of the norwegians , to whom william was by his grand-father allied in blood ) i read in the annals of roger hoveden . and that he openly declared , that he would rule by them ; at hearing of which , all the great men of the countrey , who had enacted the english laws , were presently struck into dumps , and did unanimously petition him , that he would permit them to have their own laws and ancient customs ; in which their fathers had lived , and they themselves had been born and bred up in ; forasmuch as it would be very hard for them to take up laws that they knew not , and to give judgement according to them . but the king appearing unwilling and uneasie to be moved , they at length prosecuted their purpose , beseeching him , that for the soul of king edward , who had after his death given up the crown and kingdom to him ▪ and whose the laws were , and not any others that were strangers , he would hearken to them and grant that they might continue under their own countrey laws . whereupon calling a council , he did at the last yield to the request of the barons . from that day forward therefore the laws of king edward , which had before been made and appointed by his grand-father adgar , seeing their authority , were before the rest of the laws of the countrey respected , confirmed and observed all over england . but what then ? doth it follow that all things in william's time were new ? how can a man chuse but believe it ? the abbot of crowland sayes this of it , i have brought with me from london into my monastery the laws of the most righteous king edward , which my renowned lord king william hath by proclamation ordered , under most grievous penalties , to be authentick and perpetual , to be kept inviolably throughout the whole kingdom of england , and hath recommended them to his justices , in the same language wherein they were at first set forth and published . and in the life of fretherick abbot of s. albans you have this account : after many debates , arch-bishop lanfrank being then present ( at berkhamstead in hartfordshire ) the king did for the good of peace , take his oath upon all the reliques of the church of s. alban , and by touching the holy gospels , fretherick the abbot administring the oath , that he would inviolably observe the good and approved ancient laws of the kingdom , which the holy and pious kings of england his predecessors , and especially king edward had appointed . but you will much more wonder at that passage of william le rouille of alençon in his preface to the norman customs . that vulgar chronicle , saith he , which is intitled the chronicle of chronicles , bears witness , that s. edward king of england , was the maker or founder of this custom ; where he speaks of william the bastard duke of normandy , alias king of england , saying , that whereas the foresaid s. edward had no heirs of his own body , he made william heir of the kingdom , who after the defeat and death of harald the usurper of the kingdom , did freely obtain and enjoy the kingdom upon this condition , to wit , that he would keep the laws which had before been made by the fore-mentioned edward ; which edward truly had also given laws to the normans , as having been a long time also brought up himself in normandy . where then , i pray you , is the making of new laws ? why ! without doubt , according to tilbury , we are to think , that together with the ratifying of old laws , there was mingled the making of some new ones : and in this case one may say truly with the poet in his panegyrick : firmatur senium juris , priscamque resumunt canitiem leges , emendanturque vetustae , acceduntque novae . — which in english speaks to this sense ; the laws old age stands firm by royal care , statutes resume their ancient gray hair . old ones are mended with a fresh repair ; and for supply some new ones added are . see here ! we impart unto thee , reader , these new laws , with other things , which thou maist justly look for at my hands in this place . chap. ii. the whole country inrolled in dooms-day book . why that book so called . robert of glocester's verses to prove it . the original of charters and seals from the normans , practised of old among the french. who among the romans had the priviledge of using rings to seal with , and who not . . he caused all england to be described , and inrolled ( a whole company of monks are of equal authority in this business , but we make use of florentius of worcester for our witness at this time ) how much land every one of his barons was possessed of , how many soldiers in fee , how many ploughs , how many villains , how many living creatures or cattel , i , and how much ready mony every one was master of throughout all his kingdom , from the greatest to the least ; and how much revenue or rent every possession or estate was able to yield . that breviary or present state of the kingdom being lodged in the archives for the generality of it , containing intirely all the tenements or tenures of the whole country or land was called dooms-day , as if one would say , the day of doom or judgment . for this reason , saith he of tilbury , we call the same dooms-day book : not that there is in it sentence given concerning any doubtful cases proposed ; but because it is not lawful upon any account , to depart from the doom or judgment aforesaid . reader , if it will not make thy nice stomach wamble , let me bring in here an old fashioned rhyme , which will hardly go down with our dainty finical verse-wrights , of an historical poet robert of glocester : one whom , for his antiquity , i must not slight concerning this book . the k. w. vor to wite the worth of his londe let enqueri streitliche thoru al engelonde , hou moni plou lond , and hou moni hiden also were in everich sire , and wat hii were wurth yereto : and the rents of each toun , and of the waters echone , that wurth , and of woods eke , that there ne bileved none , but that he wist wat hii were wurth of al engelonde , and wite al clene that wurth thereof ich understond and let it write clene inou , and that scrit dude iwis in the tresorie at westminster there it yut is . so that vre kings suth , when hii ransome toke and redy wat folc might give , hii fond there in yor boke . considering how the english language is every day more and more refined , this is but a rude piece , and looks scurvily enough . but yet let us not be unmindful neither , that even the fine trim artifices of our quaint masters of expression , will themselves perhaps one day , in future ages , that shall be more critical , run the same risk of censure , and undergo the like misfortune : and that , multa renascentur quae nunc cecidere , cadentque quae nunc sunt in honore ; — as horace the poet born at venusium , tells us : that is , several words which now are fal'n full low , shall up again to place of honour start ; and words that now in great esteem , i trow , are held , shall shortly with their honour part . . the normans called their writings given under their hand , charters ( i speak this out of ingulph ) and they ordered the confirmation of such charters with an impression of wax , by every ones particular seal , under the testimony and subscription of three or four witnesses standing by . but edward the confessor had also his seal , though that too from normandy . for in his time , as the same writer saith , many of the english began to let slip and lay aside the english fashions , bringing in those of the normans in their stead , and in many things to follow the customs of the franks ; all great persons to speak the french tongue in their courts , looking upon it as a great piece of gentility , to make their charters and writings alamode of france ; and to be ashamed of their own country usages in these and other like cases . nay , and if leland , an eye-witness , may be believed , our great prince arthur had his seal also , which he saith he saw in the church of westminster with this very inscription . patritius . arthurius . britanniae . galliae . germaniae . daciae . imperator . that is , the right noble , arthur , emperor of britanny , france , germany , and transylvania . but that the saxons had this from the normans , is a thing out of all question . their grants or letters patents signed with crosses , and subscribed with witnesses names , do give an undoubted credit and assurance to what i have said . john ross informs us that henry beauclerk was the first that made use of one of wax ; and matthew of canterbury , that edward the first did first hang it at the bottom of his royal writings by way of label ; whereas before , his predecessors fastned it to the left side . such a writing of henry the first in favour of anselm , the last author makes mention of ; and such an one of william's duke of the normans , though a very short one and very small written ; brian-twine in his apology for the antiquity of the famous university of oxford ( the great study and support of england , and my ever highly honoured mother ) saith , he had seen in the library of the right honourable my lord lumley . but let a circumcised jew , or who else will for me , believe that story concerning the first seal of wax , and the first fastning of it to the writing : a great many waxen ones of the french peers ( that i may say something of those in wax ) and golden ones of their kings ( to wit , betwixt the years and ) we meet with fashioned like scutcheons or coats of arms in those patterns or copies which francis de rosieres has in his first tome of the pedigree or blazonry of the dukes of lorain , set down by way of preface . nor was it possible that the normans should not have that in use , which had been so anciently practised by the french. let me add this out of the ancient register of abendon : that richard earl of chester ( who flourished in the time of henry the first ) ordered to sign a certain writing with the seal of his mother ermentrude ; seeing that ( being not girt with a soldiers belt , i. e. not yet made knight ) all sorts of letters directed by him , were inclosed with his mothers seal . how ? what is that i hear ? had the knightly dignity and order the singular priviledge , as it was once at rome , to wear gold-rings ? for rings ( as 't is related out of ateius capito ) were especially designed and ingraven for seals : let phoebus , who knows all things , out of his oracle tell us . for servants or slaves ( so says justus lipsius , and remarks it from those that had been dug up in holland ) and common soldiers were allowed iron ones to sign or to seal with ( which therefore flavius vopiscus calls annulos sigillaricios , i. e. seal-rings ) and so your ordinary masters of families had such , with a key hanging at it to seal and lock up their provision and utensils . but , saith ateius of the ancient time , neither was it lawful to have more than one ring , nor for any one to have one neither but for freemen , whom alone trust might become , which is preserved under seal ; and therefore the servants of a family had not the right and priviledge of rings . i come home to our selves now . chap. iii. other ways of granting and conveying estates , by a sword , &c. particularly by a horn. godwin's trick to get boseham of the arch-bishop of canterbury . pleadings in french. the french language and hand when came in fashion . coverfeu . laws against taking of deer , against murder , against rape . . at first many lands and estates were collated or bestowed by bare word of mouth , without writing or charter , only with the lords sword or helmet , or a horn or a cup ; and very many tenements with a spur , with a currycomb , with a bow , and some with an arrow : but these things were in the beginning of the norman reign , in after times this fashion was altered , says ingulph . i , and these things were before the normans government . let king edgar his staff cut in the middle , and given to glastenbury abbey for a testimony of his grant , be also here for a testimony . and our antiquary has it of pusey in berkshire , that those who go by the name of pusey do still hold by a horn , which heretofore had been bestowed upon their ancestors by knute the danish king. in like manner , to the same purpose an old book tells this story : that one vlphus the son of toraldus , turned aside into york , and filled the horn that he was used to drink out of , with wine ; and before the altar upon his bended knees , drinking it , gave away to god and to st. peter , the prince of the apostles , all his lands and revenues . which horn of his , saith camden , we have been told was kept or reserved down to our fathers memory . we may see the conveyance of estate , how easie it was in those days , and clear from the punctilio's of law , and withal how free from the captious malice of those petty-foggers who would intangle titles and find flaws in them , and from the swelling bundles and rolls of parchments now in use . but commend me to godwin earl of kent , who was , to use h●gesander's word , too great a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , catcher at syllables , and as the comedian says , more shifting than a potters wheel : give me ( saith he to the arch-bishop of canterbury ) boseham . the arch-bishop admiring what it was he would be at in that question , saith , i give you boseham . he straight upon the confidence of this deceit , without any more ado entred upon an estate of the arch bishops of that name on the sea-coasts of sussex , as if it had been his own by inheritance : and with the testimony of his people about him , spoke of the arch-bishop before the king as the donor of it , and quietly enjoyed it . those things i spoke of before ( to wit , of sword , horn , &c. ) smell of that way of investing into fees which we meet with in obertus de orto ; but are very unlike to that solemn ceremony which is from ancient time even still used in conveying of an estate and delivering possession , wherein a green turf or the bough of a growing tree is required . . they did so much abhor the english tongue ( 't is the abbot of crowland saith it ) that the laws of the land , and the statutes of the english kings , were handled or pleaded in the french language . for till the thirty sixth year of edward the third , all businesses of law were pleaded in french. that also in schools the rudiments of grammatical institution , were delivered to boys in french and not in english. also that the english way and manner of writing was laid aside , and the french mode was made use of in all charters or instruments and books . indeed it was such a fault to be ignorant in the french , or not to be able to speak it ; that mainly upon this account , in the reign of william rufus , vlstan bishop of worcester was censured as unworthy of his place , and deprived of his dignity , who as to other things according to the simplicity of that age , was scholar enough . the abbot whom i quoted , speaks thus of the french character : the saxon hand was used by all the saxons and mercians in all their hand-writings , till the time of king alfred , who had by french tutors been very well trained up in all literature ; but from the time of the said king , it did by disuse come to be of little account ; and the french hand , because it being more legible and more delightful to sight , had the preheminence , grew more and more every day in vogue and use among all the english. nevertheless however this business went , we are told that in the memory of our fathers , and that by an ancient order , there were lectures of the english-saxon language , read at tavistock abby in devonshire . . that his new kingdom might not be disturbed by riots and disorders in the night , he ordered that at the ringing of a bell ( which they called the curfew-bell ) all the lights and fires should in every little cottage , a little after the dusk of the evening , be put out . . he that should take a deer , or aprum , a boar ( so says huntingdon , but perhaps 't is caprum , a buck ) or a roe , was to have his eyes thrust or plucked out , saith matthew paris . . if any one had slain any one ( 't is huntingdon writes this ) be it upon what cause or occasion soever , he was sentenced to a capital punishment , he was to die for it . if one had forced any woman ( so i read aliquam any woman , not aliquem any man , as 't is in the common prints ) he was to have his privities cut off . forced her ? i , sure enough ; and perhaps he that lay with a woman with her consent , was notwithstanding that , served in the same kind too . and in this case i would have you hear what that great lawyer albericus gentilis , his opinion is . this i say , saith he , that a man hath a greater injury done him , if the woman were not ravished per force , but were debauched and made willing : because in this case her mind is estranged from her husband ; but in that other , not . chap. iv. sheriffs and ihries were before this time . tha four terms . judges to act without appeal . justices of peace . the kingr payments made at first in provisions . afterwards ehanged into mony , which the sheriff of each county was to pay in to the exchequer . the constable of dover and warder of the cinque ports why made . a disorder in church-affairs reformed . polydore virgil brings in at this time the first sheriffs of counties , and here places the beginning of juries , or determining of tryals by the judgment of twelve ; but is out in them both . this of juries is convinced by a law of ethelred in lambard's explications of law-terms , and by those irrefragable arguments which the famous sir edward coke brings against it . that other mistake of sheriffs is confuted by what we have formerly noted out of ingulph , and by what we shall hereafter somewhere have occasion to remark . mars being impleaded in the areopagus , the place of judgment at athens , for the murder of halirothius the son of neptune , whom he had slain for ravishing his daughter alcippa ; upon his tryal by twelve gods , was acquitted by six sentences or votes : for if the number were equal and no majority , the person was not condemned but discharged . my meaning why i put in this story , is to shew the most ancient use of this number of twelve in tryals elsewhere , as well as amongst us . an italian might well mistake in a concern of england ; yet take it not ill at my hands , that i have given you this upon his credit . . he appointed that four times every year , there should be kept conventions or meetings for several days , in such place as he himself should give order : in which meetings the judges sitting apart by themselves , should keep court and do justice . these are our four tserms . . he appointed other judges , who without appeal should exercise jurisdiction and judgment ; from whom as from the bosom of the prince , all that were ingaged in quarrels , addressing thither , might have right done them , and refer their controverlies to them . . he appointed other rulers or magistrates , who might take care to see misdemeanors punished ; these he called justices of peace . now one may well imagine , that this name of office is most certainly of a later date , and a foreign writer is to be excused by those rights which are afforded to guests and strangers ( since acting a busiris his part against them , would be downright barbarous ) i say he is to be excused so far , as not to have his mistakes in the history of the english nation , too heavily charged upon him . . in the primitive state of the kingdom after the conquest ( gervase of tilbury in his dialogue of the exchequer , saith , this is a thing handled down from our forefathers ) the kings had payments made them out of their lands , not in sums of gold or silver , but only in victuals or provisions : out of which the kings house was supplied with necessaries for daily use ; and they who were deputed to this service ( the purveyors ) knew what quantity arose from each several land . but yet as to soldiers pay or donatives , and for other necessaries concerning the pleas of the kingdom , or conventions , as also from cities and castles where they did not exercise husbandry or tillage ; in such instances , payments were made in ready mony . wherefore this institution lasted all the time of william the first , to the time of king henry his son , so that i my self ( gervase flourished in the reign of henry the second ) have seen some people , who did at set times carry from the kings lands , victuals or provisions of food to court. and the officers also of the kings house knew very well , having it upon account , which counties were to send in wheat , which to send in several sorts of flesh , and provender for the horses . these things being paid according to the appointed manner and proportion of every thing , the kings officers reckoned to the sheriffs by reducing it into a sum of pence ; to wit , for a measure of wheat to make bread for a hundred men , one shilling ; for the body of a pasture-fed beef , one shilling ; for a ram or a sheep four pence ; for the allowance of twenty horses likewise four pence : but in process of time , when as the said king was busie in remote parts beyond sea to appease tumults and insurrections ; it so happened , that ready mony was highly necessary for him to supply his occasions . in the mean time , there came in multitudes , a great company of husbandmen with complaints to the kings court , or which troubled him more , they frequently came in his way as he was passing by , holding up their ploughshares , in token that their husbandry was running to decay ; for they were put to a world of trouble , upon occasion of the provisions which they carried from their own quarters through several parts of the kingdom . thereupon the king being moved with their complaints , did by the resolved advice of his lords , appoint throughout the kingdom such persons , as he knew were , for their prudence and discretion , fit for the service . these persons going about , and that they might believe their own eyes , taking a view of the several lands , having made an estimate of the provisions which were paid out of them , they reduced it into a sum of pence . but for the total sum , which arose out of all the lands in one county , they ordered , that the sheriff of that county should be bound to the exchequer : adding this withal , that he should pay it at the scale . now the manner of paying , the tryal of the weight and of the metal by chymical operation , the melter or coyner , and the surveyor of the mint , are more largely handled and explained by my self in some other work of mine . . that he might the more firmly retain kent to himself , that being accounted as it were the key of england ; ( 't is the famous mr. camden tells the story ) he set a constable over dover-castle , and made the same person warden of the cinque ports , according to the old usage of the romans . those are hastings , dover , hith , rumney , and sandwich ; to which are joyned winchelsey and rye as principals , and other little towns as members . . to put the last hand to william , i add out of the archives , this law , not to be accounted among the last or least of his . william , by the grace of god , king of the english , to all counts or earls , viscounts or sheriffs , and to all french born , and english men , who have lands in the bishoprick of remigius , greeting . this remigius was the first who translated the episcopal see from dorchester to lincoln . be it known unto you all , and the rest of my liege subjects , who abide in england ; that i , by the common advice of my arch-bishops , and the rest of the bishops and abbots , and all the princes of my kingdom , have thought fit to order the amendment of the episcopal laws , which have been down to my time , in the kingdom of the angles , not well , nor according to the precepts of the holy canons , ordained or administred : wherefore i do command , and by my royal authority strictly charge ; that no bishop or arch-deacon , do henceforth hold pleas in the hundred concerning episcopal laws ; nor bring any cause which belongs to the government of souls ( i. e. to spiritual affairs ) to the judgment of secular men ; but that whosoever , according to the episcopal laws , shall for what cause or fault soever be summoned , shall come to a place which the bishop shall chuse and name for this purpose ; and there make answer concerning his cause , and do right to god and his bishop , not according to the hundred , but according to the canons and episcopal laws . for in the time of the saxon empire , there were wont to be present at those country meetings ( the hundred courts ) an alderman and a bishop , the one for spirituals , the other for temporals , as appears by king edgar's laws . chap. v. william rufus succeeds . annats now paid to the king. why claimed by the pope . no one to go out of the land without leave . hunting of deer made felony . after the death of william , his second son william sirnamed rvfvs succeeded in his room . all justice of laws ( as florentius of worcester tells us ) was now husht in silence , and causes being put under a vacation without hearing , money alone bore sway among the great ones , ipsaque majestas auro corrupta jacebat . that is , and majesty it self being brib'd with gold , lay , as a prostitute , expos'd to th' hold . . the right or duty of first-fruits , or , as they are commonly called , the annats , which our kings claimed from vacant abbies and bishopricks , polydor virgil will have to have had its first original from rufus . now the popes of rome laid claim to them anciently ; a sort of tribute , which upon what right it was grounded , the council of basil will inform us , and by what opinion and resolution of divines and lawyers confirmed , francis duarenus in his sacred offices of the church will instruct us . 't is certain , that chronologers make mention , that at his death the bishopricks of canterbury , winchester and salisbury , and twelve monasteries beside , being without prelates and abbots , paid in their revenues to the exchequer . . he forbad by publick edict or proclamation ( sayes the same author ) that any one should go out of england without his leave and passport . we read , that he forbad anselm the arch-bishop , that he should not go to wait upon pope vrban ; but that he comprehended all subjects whatsoever in this his royal order , i confess i have not met with any where in my reading , but in polydor. . he did so severely forbid hunting of deer ( saith william of malmesbury ) that it was felony , and a hanging matter to have taken a stag or buck. chap. vi. henry the first why called beauclerk . his letters of repeal . an order for the relief of lands . what a hereot was . of the marriage of the kings homagers daughter , &c. of an orphans marriage . of the widows dowry . of other homagers the like . coynage-money remitted . of the disposal of estates . the goods of those that dye intestate , now and long since , in the churches jurisdiction ; as also the business of wills. of forfeitures . of misdemeanors . of forests . of the fee de hanberk . king edward's law restored . william , who had by direful fates been shewn to the world , was followed by his brother henry , who for his singular learning , which was to him instead of a royal name , was called beau-clerk . he took care of the common-wealth , by amending and making good what had slipt far aside from the bounds of justice , and by softning with wholsome remedies those new unheard of , and most grievous injuries , which ralph afterwards bishop of durham ( being lord chief justice of the whole kingdom ) plagued the people with . he sends letters of repeal to the high sheriffs , to the intent , that the citizens and people might enjoy their liberty and free rights again . see here a copy of them , as they are set down in matthew paris . henry by the grace of god king of england , to hugh of bockland , high sheriff , and to all his liege people , as well french as english in herefordshire , greeting . know ye , that i through the mercy of god , and by the common advice of the barons of the kingdom of england have been crowned king. and because the kingdom was opprest with unjust exactions , i out of regard to god , and that love which i bear towards you all , do make the holy church of god free , so that i will neither sell it , nor will i put it to farm , nor upon the death of arch-bishop , or bishop , or abbot , will i take any thing of the domain of the church , or of the men thereof , till a successor enter upon it . and all evil customs , wherewith the kingdom of england was unjustly oppressed , i do henceforward take away ; which evil usages i do here in part set down . . if any one of my barons , counts or others that hold of me , shall dye , his heir shall not redeem his land , as he was wont to do in the time of my father , but relieve it with a lawful and due relief . in like manner also shall the homagers or tenants of my barons relieve their lands from their lords with a lawful and just relief . it appears , that in the times of the saxons a hereot was paid to the lord at a tenants death , upon the account of provision for war ( for here in saxon signifies an army : ) and that which in our memory now in french is called a relief ( henry of bracton sayes , 't is an engagement to recognize the lord ) doth bear a resemblance of the ancient hereot . thereupon it is a guess , saith william lambard , that the normans being conquerors , did remit the hereot to the angles whom they had conquered and stripped of all kind of armour , and that for it they exacted money of the poor wretches . to this agrees that which is mentioned in the state of england concerning the nobles of berkshire . a tain or knight of the kings holding of him , did at his death for a relief part with all his arms to the king , and one horse with a saddle and another without a saddle . and if he had hounds or hawks , they were presented to the king , that if he pleased he might take them . and in an ancient sanction of conrade the first , emperour of germany , if a souldier that is tenant or lessee happen to dye , let his heir have the fee , so that he observe the use of the greater vavasors , in giving his horses and arms to the seniors or lords . john mariana takes notice , that the word seniors in the vular languages , spanish , italian and french , signifies lords , and that to have been in use from the time of charlemain's reign . but these things you may have in more plenty from the feudists , those who write concerning tenures . . if any of my barons or other men ( homagers or tenants ) of mine ( i return to king henry's charter ) shall have a mind to give his daughter , or sister , or niece , or kinswoman in marriage , let him speak with me about it . but neither will i take any thing of his for this leave and licence , nor will i hinder him from betrothing her , except he shall have a design of giving her to an enemy of mine . . if upon the death of a baron , or any other homager of mine , there be left a daughter that is an heiress , i will bestow her with the advice of my barons together with her land. . if upon the death of the husband , his wife be left without children , she shall have her dowry and right of marriage , as long as she shall keep her body according to law ; and i will not bestow her , but according to her own liking . and if there be children , either the wife , or some one else near of kin shall be their guardian and trustee of their land , who ought to be just . . i give order , that my homagers do in like manner regulate themselves towards the sons and daughters and wives of their homagers . . the common duty of money or coinage , which was taken through all cities and counties , which was not in the time of king edward , i do utterly forbid that henceforward this be no more done . . if any one of my barons or homagers shall be sick and weak , according as he himself shall give or order any one to give his money , i grant it so to be given ; but if he himself being prevented either by arms or by sickness , hath neither given his money , nor disposed of it to give , then let his wife , or children , or parents , and his lawful homagers for his souls health divide it , as to them shall seem best . and in canutus his laws , let the lord or owner at his own discretion make a just distribution of what he hath to his wife and children and the next of kin . but at this time , and long since , church-men have been as it were the distributors and awarders of the goods of such persons as dye intestate , or without making their wills , and every bishop as ordinary in his own diocess , is the chief judge in these cases . john stratford arch-bishop of canterbury saith it , and it is averred in the records of our law , that this jurisdiction also concerning wills , was of old long time ago in an ancient constitution , intrusted to the church by the consent of the king and peers . however , in what kings time this was done , neither does he relate , nor do i any where find , as william lindwood in his provincial acknowledgeth . it is a thing very well known , that after tryal of right , wills were wont to be opened in the ecclesiastical court even in the reign of henry the second ( ralph glanvill is my witness ) contrary to what order was taken in the imperial decrees of the romans . and peradventure it will appear so to have been before glanvill , as he will tell you , if you go to him ; although you have , quoted by my self some where , a royal rescript or order to a high sheriff , that he do justly and without delay cause to stand ( i. e. appoint and confirm ) a reasonable share to such an one ; that is , that the legatee may obtain and enjoy his right , what was bequested to him by the sheriffs help . i come back now to my track again . . if any one of my barons or homagers shall make a forfeit , he shall not give a pawn in the scarcity of his money , as he did in the time of my brother or my father , but according to the quality of his forfeiture : nor shall he make amends , as he would have done heretofore in my brothers or fathers time . . if he shall be convicted of perfidiousness or of foul misdemeanors , as his fault shall be , so let him make amends . . the forests by the common advice of my barons , i have kept in mine own hand , in the same manner as my father had them . . to those souldiers or knights who hold and maintain their lands by coats of male ( that is , per fee de hauberke , that they may be ready to attend their lords with habergeons or coats of male compleatly armed cap a pee ) i grant the plough-lands of their domainsacquitted from all gelds , and from every proper gift of mine , that , as they are eased from so great a charge and grievance , so they may furnish themselves well with horse and arms , that they may be fit and ready for my service , and for the defence of my realm . . i restore unto you the law of king edward , with other amendments , wherewith my father amended it . those amendments are put forth by lambard . hitherto out of those royal and general letters , directed to all the subjects . chap. vii . his order for restraint of his courtiers . what the punishment of theft . coyners to lose their hands and privy-members . guelding a kind of death . what half-pence and farthings to pass . the right measure of the eln. the kings price set for provisions . . he did by his edict or proclamation , restrain the rapines , thefts , and rogueries of the courtiers ; ordering , that those who were caught in such pranks , should have their eyes with their stones pulled out . this malmesbury supplies us with . but florentius of worcester and roger hoveden give the account , that he punished thieves with death and hanging , otherwise than that pleasant and curious man thomas moor in his vtopia would have his people to be dealt with . yet i am inclined rather to believe malmesbury ; not only upon the authority of the man , in comparison of whose rose-beds ( if you well weigh the learning of that age ) the other pack of writers are but sorry low shrubs ; but also upon the account of a nameless monk , who in his book of the miracles of s. thomas of canterbury , tells us a story of one eilward , a poor mean fellow of kingsweston in berkshire , who being in the reign of king henry the second condemned of theft ( he had it seems stoln a pair of countrey gloves and a whetstone ) was punished by losing his eyes and privities ; who coming with devotion to s. thomas his tomb , got an intire restitution of his disappearing members and faculties , and was as good a man as ever he was . perchance in this he is no witness of infallible credit . let the story of iphis and ianthis , and that of ceneus try masteries with this for the wherstone ; to our purpose the writer is trusty enough . but in the first times of the normans , i perceive , that the halter was the ill consequence of theft . let it be lawful for the abbot of that church , if he chance to come in in the god speed , to acquit an high-way-man or thief from the gallows . they are the words of the patent with which william the conquerour , to expiate the slaughter of harald , consecrated a monastery to s. martin near hastings on the sea-coast of sussex , and priviledged it with choice and singular rights . . against cheats , whom they commonly call coyners ( 't is malmesbury speaks again ) he shewed his particular diligence , permitting no cheating fellow to escape scot-free , without losing his fist or hand , who had been understood to have put tricks upon silly people with the traffick of their falshood . for all that , he who hath tackt a supplement to florentius of worcester , and william gemeticensis give out , that the counterfeiters and imbasers of coin had , over and above those parts cut off , which galen accounts to be the principal instruments for propagating of the kind . to whom hoveden agrees , who writes in the life of henry the first , that coyners by the kings order being taken , had their right hands and their privy-members cut off . upon this account sure , that he that was guilty of such a wicked crime , should have no hope left him of posterity , nor the common-wealth be in any further fear of those who draw villainous principles from the loins of those that beget them . now at this very time and in former ages too , this piece of treason was punished with halter and gallows ; and that also of theft not only in england , but almost in all countreys , especially robbery upon the high-way , which is committed by those who lay wait to surprize passengers as they travel along upon one or other side of them ; whence not only in the latin , but in the holy language also , a high-way-man hath his name . and truly among the ancients guelding was lookt upon as a kind of death . the apostles canons give him the character and censure of a manslayer , who cuts off his own privities ( who lives all his life a batchelor , say the talmudists ) and he who cuts off another mans , is in danger of the cornelian law concerning murderers and cut-throats ; and so was it heretofore among the english. . he ordered ( they are hoveden's words ) that no half-penny , which also he commanded should be made round , or farthing also , if it were intire , should be refused . . he corrected the merchants false eln ( so sayes the monk of malmesbury ) applying the measure of his arm , and proposing that to all people over england . . he gave order to the courtiers , in whatsoever cities or villages he were , how much they were to take of the countrey people gratis , and at what price to buy things ; punishing offendors herein either with a great fine of money , or with loss of life . chap. viii . the regality claimed by the pope , but within a while resumed by the king. the coverfeu dispensed with . a subsidy for marrying the kings daughter . the courtesie of england . concerning shipwrack . a tax levied to raise and carry on a war. . anselm arch-bishop of canterbury labours earnestly with the pope and his party , and at length obtains it with much ado , that from that time forward ( you have it in florilegus after other writers ) never any one should be invested with a pastoral staff or a ring into a bishoprick or abbacy by the king , or any lay-person whatsoever in england , ( added out of malmesbury ) retaining however the priviledge of election and regality . there was a sharp bickering about this business betwixt the king and anselm ; and so between the popes paschalis and calixtus and henry about that time emperour . both of them at least pretendedly quit their right ; our king humouring the scene according to the present occasion . for after anselm's death , he did invest rodulphus that came in his room by a ring and a pastoral staff. . he restored the night-torches or lights which william the first had forbidden ; forasmuch as he now had less reason to apprehend any danger from them , the kingdom being in a better and firmer posture . . to make up a portion for mawd the kings daughter , married to henry the emperour , every hide of land paid a tribute of three shillings . here polydore makes his descant . afterward , sayes he , the rest of the kings followed that course of raising portions for the bestowal of their daughters ; so tenacious hath posterity alway been of their own advantages . it is scarce to be doubted , that the right of raising money for the marrying of the lords daughters by way of aid or subsidy upon the tenants or dependants , is of a more ancient original . neither would i fetch it from the mutual engagement of romulus his patrons and clients , or landlords and tenants , or from suetonius his caligula : rather from the old customs of the normans , more ancient than king henry ; where that threefold tribute is explained by the name of aid , which the patent granted by king john in favour of publick liberty mentions in these words : i will impose no escuage or aid in our realm , but by the common advice of our realm ; unless it be to ransom our body , and to make our first-born son a soldier or knight , and to marry our eldest daughter once . . some ascribe that law to henry , which lawyers call the courtesie of england ; whereby a man having had a child by his wife , when she dyes , enjoyes her estate for his life . . he made a law , that poor shipwrackt persons should have their goods restored to them , if there were any living creature on ship-board , that escaped drowning . forasmuch as before that time , whatsoever through the misfortune of shipwrack was cast on shoar , was adjudged to the exchequer ; except that the persons who suffered shipwrack and had escaped alive , did themselves within such a time refit and repair the vessel . so the chronicle of the monastery of s. martin de bello . this right is called wreck , or if you will , uareck , of the sea. how agreeable to the law of nations , i trouble not my self to enquire . that more ancient custom , is as it were suitable to the norman usage . now at this time our lawyers ( and that the more modern law of edward the first ) pass judgement according to the more correct copy of king henry . and they reckon it too among the most ancient customs of the kingdom . did therefore king richard order , or did hoveden relate this to no purpose , or without any need ? if one who suffers shipwrack dye in the ship , let his sons or daughters , his brethren or sisters have what he left , according as they can shew and make out that they are his next heirs . or if the deceased have neither sons nor daughters , nor brothers nor sisters , the king is to have his chattels . can one imagine , that this law he made at messina , when he was engaged in war , was calculated only for that time or place ? certainly in the archives there is elsewhere to be met with as much as this . . that he might with a stout army bear the brunt of baldwin earl of flanders and louis king of france , who had conspired , being bound by mutual oaths to one another with the duke of anjou , to take away from king henry by force of arms the dutchy of normandy , he first of all ( t is polydore avers it ) laid a heavy tax upon the people , to carry on the new war ; which thing with the kings that followed after , grew to be a custom . he was the last of the normans of a male descent , and as to the method of our undertaking , here we treat of him last . chap. ix . in king stephen's reign all was to pieces . abundance of castles buili . of the priviledge of coming . appeals to the court of rome now set on foot . the roman laws brought in , but disowned . an instance in the wonder-working parliament . as of old , unless the shields were laid up , there was no dancing at weddings ; so except arms be put aside , there is no pleading of laws . that antipathy betwixt arms and laws , england was all over sensible of , if ever at any time , in the reign of k. stephen , count of blois , king henry's nephew by his sister adela . for he did not only break the law and his oath too to get a kingdom , but also being saluted king , by those who perfidiously opposed mawd the right and true heir of king henry , he reigned with an improved wickedness . for he did so strangely and odly chop and change every thing ( it is malmsbury speaks it ) as if he had sworn only for this intent , that he might shew himself to the whole kingdom , a dodger and shammer of his oath . but , as he saith , — perjuros merito perjuria fallunt ? that is , such men as perjuries do make their trade , by their own perjuries most justly are betray'd . they are things of custom to which he swore , and such as whereby former priviledges are ratified , rather than new ones granted . however , some things there are , that may be worth the transcribing . . castles were frequently raised ( 'tis nubrigensis relates it ) in the several counties by the bandying of parties ; and there were in england in a manner as many kings , or rather as many tyrants , as lords of castles , having severally the stamping of their own coin , and a power of giving law to the subjects after a royal manner . then was the kingdom plainly torn to pieces , and the right of majesty shattered , which gains to it self not the least lustre from stamping of money . though i know very well , that before the normans , in the city of rochester , canterbury , and in other corporations and towns , abbots and bishops had by right of priviledge their stampers and coiners of money . . next to the king , theobald arch-bishop of canterbury presided over the council of london ( where there were also present the peers of the realm ) which buzzed with new appeals . for in england ( t is henry of huntington sayes it ) appeals were not in use , till henry bishop of winchester , when he was legate , cruelly intruded them to his own mischief . wherefore what cardinal bellarmin has writ , beginning at the synod of sardis , concerning the no body knows how old time of the universal right of appealing to the pope of rome , does not at all , as to matter of fact , seem to touch upon this kingdom of ours by many and many a fair mile . . in the time of king stephen ( fo 't is in the polycraticon of john of salisbury ) the roman laws were banisht the realm , which the house of the right reverend theobald lord primate of britanny had fetcht or sent for over into britanny . besides , it was forbidden by royal proclamation , that no one should retain or keep by him the books . if you understand the laws of the empire ( i rather take them to be the decrees of the popes ) it will not be much amiss , out of the parliament records to adjoyn these things of later date . in the parliament holden by richard of bourdeaux , which is said to have wrought wonders , upon the impeachment of alexander nevil arch-bishop of canterbury , robert uere duke of ireland , michael pole earl of suffolk , thomas duke of glocester , richard earl of arundel , thomas beauchamp earl of warwick , and others , that they being intrusted with the management of the kingdom , by soothing up the easie and youthful temper of the king , did assist one another for their own private interest , more than the publick , well near to the ruine and overthrow of the government it self ; the common lawyers and civilians are consulted with , about the form of drawing up the charge ; which they answer all as one man , was not agreeable to the rule of the laws . but the barons of parliament reply , that they would be tyed up to no rules , nor be led by the punctilioes of the roman law , but would by their own authority pass judgement ; pur ce que la royalme d' angleterre n' estoit devant ces heures , n'y à l' entent de nostre dit seigneur le roy & seigneurs de parlament unque ne serra rules ne gouvernes per la loy civil : that is , inasmuch as the realm of england was not before this time , nor in the intention of our said lord the king and the lords of parliament ever shall be ruled or governed by the civil law. and hereupon the persons impleaded are sentenced to be banished . but here is an end of stephen : he fairly dyed . chap. x. in king henry the seconds time , the castles demolished . a parliament held at clarendon . of the advowson and presentation of churches . estates not to be given to monasteries without the kings leave . clergymen to answer in the kings court. a clergyman convict , out of the churches protection . none to go out of the realm , without the kings leave . this repealed by king john. excommunicate persons to find surety . laymen how to be impleaded in the ecclesiastical court. a lay-jury to swear there , in what case . no homager or officer of the kings to be excommunicated , till he or his justice be acquainted . at length , though late first , henry the son of jeoffry plantagenet , count of anger 's by the empress mawd , came to his grandfatherrs inheritance . having demolished and levelled to the ground , the castles which had , in king stephen's time , been built , to the number of eleven hundred and fifteen ; and having retrieved the right of majesty into its due bounds , he confirmed the laws of his grandfather . moreover , at clarendon in wiltshire , near salisbury , john of oxford being president , by the kings own mandate , there being also present the arch-bishops , bishops , abbots , priors , earls , barons , and peers of the realm , other laws are recognized and passed ; whilst at first those who were for the king on one side , those who were for the pope on the other , with might and main stickle to have it go their way ; these latter pleading , that the secular court of justice did not at all suit with them , upon pretence that they had a priviledge of immunity . but this would not serve their turn ; for such kind of constitutions as we are now setting down , had the vogue . . if any controversie concerning the advowson and presentation of churches , arise betwixt laymen , or betwixt laymen and clergymen , or betwixt clergymen among themselves ; let it be handled and determined in the court of the lord our king. . the churches which are in the kings fee , cannot be given to perpetuity without his assent and concession . even in the saxons times it seems it was not lawful , without the kings favour first obtained , to give away estates to monasteries ; for so the old book of abington says . a servant of king ethelred's called vlfric spot , built the abby of burton in staffordshire , and gave to it all his paternal estate , appraised at seven hundred pounds ; and that this donation might be good in law , he gave king ethelred three hundred marks of gold for his confirmation of it , and to every bishop five marks , and over and above to alfric arch-bishop of canterbury , the village of dumbleton . . clergymen being arighted and accused of any matter whatsoever , having been summoned by the kings justice , let them come into his court , there to make answer to that , of which it shall be thought fit that there answer ought to be made : so that the kings justice send into the court of holy church , to see after what manner the business there shall be handled . . if a clergyman shall be convicted , or shall confess the fact ; the church ought not from thenceforth to give him protection . . it is not lawful for arch-bishops , bishops , and persons of the kingdom , to go out of the realm without leave of our lord the king : and if they do go out , if the king please , they shall give him security , that neither in going , nor in returning , or in making stay , they seek or devise any mischief or damage against our lord the king. whether you refer that writ , we meet with in the register or record , ne exeas regnvm , for subjects not to depart the kingdom to this time or instance , or with polydore virgil to william rufus , or to later times , is no very great matter : nor will it be worth our while , curiously to handle that question : for who , in things of such uncertainty , is able to fetch out the truth ? nor will i abuse my leasure , or spend time about things unapproachable . an sit & hic dubito , sed & hic tamen auguror esse . says the poet in another case : and so say i. whether it be here or no , is a question , i confess : and yet for all that , i trow , here it is too , as i guess . out of king john's great charter , as they call it , you may also compare or make up this repeal of that law in part . let it be lawful henceforward for any one to go out of our realm , and to return safely and securely by land and by water , upon our royal word ; unless in time of war , for some short time , for the common advantage of the kingdom ; excepting those that are imprisoned and out-lawed according to the law of the kingdom , and any people or nation , that are in actual war against us : and merchants , concerning whom let such order be taken , as is afore directed . i return to king henry . . excommunicate persons ought not to give suretiship for the remainder , nor to take an oath ; but only to find surety and pledge , to stand to the judgment of the church , that they may be absolved . . persons of the laity ought not to be accused or impleaded but by certain and legal accusers and witnesses , in the presence of the arch-bishop or bishop : so that the arch-deacon may not lose his right , nor any thing which he ought to have therefrom . . if they be such persons who are in fault , as no one will or dare to accuse ; let the sheriff being thereunto required by him , cause twelve legal men of the voisinage or of the village , to swear before the bishop , that they will manifest or make known the truth of the matter according to their conscience . . let no one who holds of the king in capite , nor any one of the kings officers or servants of his domain , be excommunicated ; nor the lands of any of them be put under an interdict or prohibition ; unless first our lord the king , if he be in the land , be spoke with ; or his justice , if he be out of the land , that they may do right by him : and so that what shall appertain to the kings court , may be determined there ; and as to what shall belong to the ecclesiastical court , it may be sent thither and there treated of . chap. xi . other laws of church affairs . concerning appeals . a suit betwixt a clergyman and a layman , where to be tryed . in what case one , who relates to the king , may be put under an interdict . the difference betwixt that and excommunication . bishops to be present at tryals of criminals , until sentence of death , &c. pass . profits of vacant bishopricks , &c. belong to the king. the next bishop to be chosen in the kings chappel , and to do homage before consecration . deforcements to the bishop , to be righted by the king. and on the contrary , chattels forfeit to the king , not to be detained by the church . pleas of debts whatsoever in the kings court. yeomens sons not to go into orders without the lords leave . . concerning appeals , if at any time there shall be occasion for them , they are to proceed from the arch-deacon to the bishop , and from the bishop to the arch-bishop ; and if the arch-bishop shall be wanting in doing of justice , they must come in the last place to our lord the king ; that by his precept or order , the controversie may be determined in the arch-bishops court , so as that it ought not to proceed any further without the kings assent . this law , long since , the famous sir edward coke made use of , to assert and maintain the kings ecclesiastical jurisdiction , as a thing not of late taken up by him , but anciently to him belonging . . if a claim or suit shall arise betwixt a clergyman and a lay-man , or betwixt a layman and a clergyman , concerning any tenement which the clergyman would draw to the church , and the lay-man to a lay-fee ; it shall by the recognizance of twelve legal men , upon the consideration and advisement of the lord chief justice , be determined , whether the tenement do appertain to alms ( i. e. to the church ) or to lay-estate , before the kings own justice . and if it shall be recognized or adjudged to appertain to alms ; it shall be a plea in the ecclesiastical court : but if to a lay-fee , unless they both avow or avouch the tenement from the same bishop or baron , it shall be a plea in the kings court. but if each of them shall for that fee avouch the same bishop or ●aron , it shall be a plea in that bishops or barons court ; so that he who was formerly seised , shall not , by reason of the recognizance made , lose the seisin , till it shall by plea be deraigned . . he who shall be of a city , or a castle , or a burrough , or a manner of the kings domain , if he shall be cited by an arch-deacon or a bishop , upon any misdemeanour , upon which he ought to make answer to him , and refuse to satisfie upon their summons or citations ; they may well and lawfully put him under an interdict or prohibition ; but he ought not to be excommunicated . ( by the way ) seasonably remark out of the pontificial law , that that excommunication , they call the greater , removes a man and turns him out from the very communion and fellowship of the faithful ; and that an interdict , as the lesser excommunication , separates a man , and lays him aside only , forbidding him to be present at divine offices , and the use of the sacraments . ) i say he ought not to be excommunicated , before that the kings chief justice of that village or city be spoken with , that he may order him to come to satisfaction : and if the kings justice fail therein , he shall be at the kings mercy , and thereupon or after that the bishop may punish him upon his impleadment , with the justice of the church . . arch-bishops , bishops , and all persons whatsoever of the kingdom , who hold of the king in capite , and have their possessions from our lord the king in nature of a barony , and thereupon make answer to the kings justices and officers , and perform all rights and customs due to the king as other barons do ; they ought to be present at the tryals of the court of our lord the king with his barons , until the losing of limbs or death , be adjudged to the party tried . . when an arch-bishoprick or bishoprick , or abbacy , or priory of the kings domain shall be void ; it ought to be in his hand , and thereof shall he receive all the profits and issues as belonging to his domain : and when the church is to be provided for , our lord the king is to order some choice persons of the church , and the election is to be made in the kings own chappel , by the assent of our lord the king , and by the advice of those persons of the kingdom , whom he shall call for that purpose ; and there shall the person elect ( saving his order ) before he be consecrated , do homage and fealty to our lord the king , as to his liege lord , for his life and limbs , and for his earthly honour . . if any one of the nobles or peers do deforce to do justice to an arch-bishop , bishop , or arch-deacon , for themselves or those that belong to them ; the king in this case is to do justice . . if peradventure any one shall deforce to the lord the king his right ; the arch-bishop , bishop , and arch-deacon , ought then in that case to do justice ( or to take a course with him ) that he may give the king satisfaction . . the chattels of those who are in the kings forfeit , let not the church or church-yard detain or keep back against the justice of the king ; because they are the kings own , whether they shall be found in churches or without . . pleas of debts which are owing , either with security given , or without giving security , let them be in the kings court. . the sons of yeomen or country people , ought not to be ordained or go into holy orders , without the assent of the lord , of whose land they are known to have been born . chap. xii . the statutes of clarendon mis-reported in matthew paris , amended in quadrilegus . these laws occasioned a quarrel between the king and thomas a becket . witness robert of glocester , whom he calls yumen . the same as rusticks , i. e. villains . why a bishop of dublin called scorch-uillein . villanage before the normans time . i confess there is a great difference between these laws and the statutes of clarendon , put forth in the larger history of matthew paris , i mean those mangled ones : and in some places , what through great gaps of sence , disjointings of sentences , and misplacings of words , much depraved ones , whose misfortune i ascribe to the carelesness of transcribers . but the latter end of a manuscript book commonly called quadrilegus , ( wherein the life of thomas , arch bishop of canterbury , is out of four writers , to wit , hubert of boseham , john of salisbury , william of canterbury , and alan , abbot of tewksbury , digested into one volume ) hath holp us to them amended as you may see here , and set to rights . it is none of our business to touch upon those quarrels , which arose upon the account of these laws betwixt the king and thomas of canterbury : our historians do sufficiently declare them . in the mean time , may our poet of glocester have leave to return upon the stage , and may his verses written in ancient dialect , comprising the matter which we have in hand , be favourably entertained . no man ne might thenche the love that there was bitwene the k. h. and the good man s. thomas ; the diuel had enui therto , and sed bitwen them feu , alas , alas thulke stond , vor all to well it greu . uor there had ere ibe kings of luther dede as w. bastard , and his son w. the rede . that luther laws made inou , and held in al the lond the k. nold not beleue the lawes that he fond , ne that his elderne hulde , ne the godeman s. thomas thought that thing age right neuer law nas . ne sothnes and custom mid strength up i●old , and he wist that vre dere lourd in the gospel told that he himselfe was sothnes , and custum nought , theruore luther custumes he nould graent nought . ne the k. nould bileue that is elderne ad i●old , so that conteke sprung bituene them manifold . the k. drou to right law mani luther custume , s. thomas they withsed , and granted some . the lawes that icholle now tell he granted vawe . zuf a yuman hath a sone to clergi idraw he ne sall without is lourdes icrouned nought be uor yuman ne mai nought be made agen is lourds will free . those that are born slaves , or that other sort of servants termed villains , he calls by the name of yumen . we call free born commoners , alike as servants , as it were with a badg of ignobleness or ungentility , yeomen ; and those who of that number are married men , gommen ; for it was gomman in the old dutch , not goodman , as we vulgarly pronounce it , which signified a married man. words , as i am verily perswaded , made from the latin , homines ; which very word , by ennius and festus , according to the oscan idiom , is written hemones , and in our language , which comes pretty near that spelling of the poet , yeomen . and the etymon or origination of the word it self , is very much confirmed by the opinion of some of our own country lawyers , who take ( but with a mistake ) homines , i. e. men that do homage , and nativos , i. e. born slaves , in ancient pleas to be terms equipollent , and of the same importance . the constitution of clarendon style those rusticks or countrymen , whom he calls yumen ; and rusticks and villains ( those among the english were slaves or servants ) were anciently synonymous words , meaning the same thing . for whereas henry londres , arch bishop of dublin , had treacherously committed to the flames , the charters of his rustick tenants , the free tenants called him , as we read in the annals of ireland , scorch-uillein ; as if one would say , the burner or firer of villains . nor should i think it unseasonable in this place , to take notice of a mistake or oversight of thomas spott , a monk of canterbury ; who writes , that the english , before the norman conquest , knew nothing of private servitude or bondage ; i. e. had no such thing as villanage among them : for he is convinced both by the maid of andover , king edgar's miss , as also by the laws signed and sealed by king ina , and by that donation or grant torald of bukenhale made to walgate , abbot of crowland : wherein among other things a great many servants are mentioned , with their whole suits and services . take it also out of the synod of london , anselme being president of it ) since here belike there is mention made of servants ) that no one henceforward presume to use that ungodly practice , which hitherto they were wont in england to do , to sell , or put to sale , men , ( that is , servants ) like brute beasts . but we do not do civilly to interrupt the poet : we must begin again with him ; he once more tunes his pipes . another thing he granted eke as ye mow novise ; yuf a man of holi chirch hath eni lay see , parson , other what he be , he ssal do therevore kings service that there valth , that is right ne be vorlore , in plaiding and in assise be and in judgement also . bote war man ssal be bilemed , other to deth ido . be granted eke yuf eni man the kings traitor were , and eni man is chateux to holi chirch here that holi chirch ne solde nought the chateux there let that the k. there other is as is owne is ne wette . uor all that the felon hath the kings it is and eche man mai in holi church is owne take iwis . he granted eke that a chirche of the kings fe in none stede ene and ever ne ssold igiue be as to hous of religion , without the kings leve , and that he other the patron the gift first gave . s. thomas granted well these and other mo and these other he withsede that did him well woe . . yuf bituene twei leud men were eni striving , other bituene a leud and a clerc , for holi chirch thing as vor vouson of chirch whether shold the chirch giue , the k. wold that in his court the ple ssold be driue ; uor as much as a leud man that the o parti was chanliche was under the k. & under no bishop nas . chap. xiii . the poet gives account which of those laws were granted by thomas a becket , which withstood . leudemen signifies laymen , and more generally all illiterate persons . that which this author of ours calls leudemen , the interpreters of law , both our common and the canon law call laicks , or laymen . for as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. people , as it is derived by caesar germanicus , upon araetus his phaenomena after pindar , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. from a stone , denotes a hard and promiscuous kind of men ; so the word leudes imports the illiterate herd , the multitude or rabble , and all those who are not taken into holy orders . justus lipsiu● in his poliorceticks , discourses this at large ; where he searches out the origination of leodium or liege , the chief city of the eburones in the netherlands . as to what concerns our language , john gowes and jeoffry chaucer , who were the reformers and improvers of the same in verse , do both make it good . thus jeoffry . no wonder is a leude man to rust if a priest be foule on whom we trust . however , that it signifies an illiterate or unlearned person , as well as one not yet in orders ; what he saith elsewhere , informs us . this every leud uicar and parson can say . and peter of blois , and others , use this expression ; as well laymen as scholars . but let not chaucer take it ill , that here he must give way to our glocester muse. ii. another was that no clere , ne bishop nath mo , ne ssolde without kings leue out of the lond go . and that hii ssolde suere up the boke ywis . that hii ne sold purchas no uvel the k. ne none of is . iii. the third was yuf eni man in mausing were i brought , and suth come to amendment , ne age were nought that he ne suore vp the boc , ac borowes find solde to stand to that holy chirch there of him toky wold . iv. the verth was that no man that of the k. buld ought in cheife or in eni servise in mausing were ibrought , bote the wardeins of holy chirch that brought him thereto , the k. sede or is bailifes wat he ad misdo , and loked verst were thei to amendment it bring , and bote hii wolde by their leue do the mausing . v. the vift was , that bishoprikes and abbeis also that vacans were of prelas in the k. hand were ido , and that the k. sold all the land as is owne take , uort at last that him lust eni prelat there make . and than thulke prelat sould in is chapel ichose be . of is clarks which he wuld to such prelace bise . and than wan he were ichose in is chapel right yere , homage he solde him do ar he confirmed were . vi. the sixt was yuf eni play to chapitle wore idraw , and eni man made is appele , yuf me dude him unlaw , that to the bishop from ercedeken is appele sold make , and from bishop to arcebissop and suth none other take , and but the ercebisops court to right him wold bring , that he sold from him be cluthe biuore the king. and from the k. non other mo so that attan end plaining of holi chirch to the k. shold wend. and the k. amend solde the ercebissops dede , and be as in the popes stude , and s. thomas it withsede . vii . the seuethe was that plaiding that of det were to yeld wel thoru truth i●light , and nought i●old nere althei thoru truth it were , that ple sold be ibrought biuore the k. and is bailies and to holy chirch nought . viii . the eighth that in the lond citation none nere thoru bull of the pope of rome , and clene bileued were . ix . the nithe was that peters pence that me gadereth manion the pope nere nought on isend , ac the k. echone . x. the tethe was yuf eni clarke as felon were itake , and vor felon iproved and ne might it not forsake , that me sold him verst disordein and suth thoru there law . and thoru judgement of the land hong him other to draw . uor these and vor other mo the godeman s. thomas fleu verst out of england and eke imartred was , uor he sei there nas hote o way other he must stiffe be other holy chirch was isent , that of right was so fre . chap. xiv . the pope absolves thoms a becket from his oath , and damns the laws of clarendon . the king resents it , writes to his sheriffs , orders a scisure . penalties inflicted on kindred . he provides against an interdict from rome . he summons the bishops of london and norwich . an account of peter pence . to the laws of clarendon , which i spoke of , the states of the kingdom ( the baronage ) and with them the arch-bishop of canterbury , took their oaths in solemn manner , calling upon god. there were embassadors sent to pope alexander the third , that there might be that bottom also , that he would further confirm and ratifie them . but he was so far from doing that , that he did not only pretend that they did too much derogate from the priviledge of the clergy , and wholly refuse to give his assent to them ; but also having absolved thomas the arch-bishop , at his own request , from the obligation of that oath he had bound himself with , he condemned them as impious , and such as made against the interest and honour of holy church . king henry , as soon as he heard of it , took it , as it was fit he should , very much in dudgeon ; grievously and most deservedly storming at the insolence of the roman court , and the treachery of the bishop of canterbury . immediately letters were dispatcht to the several sheriffs of the respective counties , that if any clerk or layman in their bayliwicks , should appeal to the court of rome , they should seise him and take him into firm custody ; till the king give order what his pleasure is : and that they should seise into the kings hand , and for his use , all the revenues and possessions of the arch-bishops clerks ; and of all the clerks that are with the arch-bishop ; they should put by way of safe pledge the fathers , mothers , and sisters , nephews and neeces , and their chattels , till the king give order what his pleasure is . i have told the story out of matthew paris . you see in this instance a penalty , where there is no fault : it affects or reaches to their kindred both by marriage and blood ? a thing not unusual in the declension of the roman empire after angust●●s his time . but let misdemeanors hold or oblige those who are the authors of them ( was the order of arcali●s and honorius , emperors , to the lord chief justice e●t●chianus ) nor let the fear of punishment proceed further than the offence is found . a very usual right among the english , whereby bating the taking away the civil rights of blood and nobility , none of the posterity or family of those who lose their honours , do for the most hainous crimes of their parents , undergo any penalties . but this was not all , in those letters i mentioned , he added threats also . . if any one shall be sound carrying letters or a mandate from the pope , or thomas , arch-bishop of canterbury , containing an interdiction of christian religion in england , let him be seised and kept in hold , and let justice be done upon him without delay , as a traitor against the king and kingdom . this roger of hoveden stands by , ready to witness . . let the bishops of london and norwich be summon'd , that they may be before the kings justices to do right ( i. e. to answer to their charge , and to make satisfaction ) that they have contrary to the statutes of the kingdom , interdicted the land of earl hugh , and have inflicted a sentence of excommunication upon him . this was hugh bigod , earl of norfolk . . let st. peters pence be collected , or gathered , and kept safe . those pence were a tribute or alms granted first by ina king of the west-saxons ; yearly at lammas to be gathered from as many as had thirty pence ( as we read it in the confessor's laws ) of live-mony in their house . these were duly , at a set time , paid in , till the time of henry the eighth , when he set the government free from the papal tyranny : about which time polydore virgil was upon that account in england , treasurer , or receiver general . i thought fit to set down an ancient brief account of these pence , out of a rescript of pope gregory to the arch-bishops of canterbury and york , in the time of king edward the second . diocess li. s. d. canterbury london rochester norwich ely lincoln coventry chester winchester exceter worcester hereford bath york salisbury it amounts to three hundred marks and a noble ; that is , two hundred pounds sterling , and six shillings and eight pence . you are not to expect here the murder of thomas a becket , and the story how king henry was purged of the crime , having been absolved upon hard terms . conveniunt cymbae vela minora me● . my little skiff bears not so great a sail. chap. xv. a parliament at northampton . six circuits ordered . a list of the then justices . the jury to be of twelve knights . several sorts of knights . in what cases honorary knights to serve in juries . those who come to parliament by right of peerage , sit as barons . those who come by letters of summons , are styled chevaliers . not long after , the king and the barons meet at northampton . they treat concerning the laws and the administration of justice : at length the kingdom being divided into six provinces or circuits , there are chosen from among the lawyers , some , who in every of those provinces might preside in the seat of justice , commissioned by the name of itinerant justices , or justices in eyre . see here the list and names of those justices out of hoveden . hugh de cressi . walter fitz-robert . robert mantel . for norfolk . suffolk . cambridge . huntington . bedford . buckingham . essex . hertford . hugh de gundeville . william fitz-ralph . william basset . for lincoln . nottingham . darby . stafford . warwick . northampton . leicester . robert fitz-bernard . richard gifford . roger fitz - reinfrai . for kent . surrey . southampton . sussex . barkshire . oxford . william fitz-steeven . bertam de uerdun . turstan eitz-simon . for hereford . glocester . worcester . shropshire . ralph fitz-steeven . william ruffus . gilbert pipard . for wiltshire . dorsetshire . somersetshire . devonshire . cornwall . robert de wals. ralph de glanville . robert pikenot . for york . richmond . lancashire . copland . westmoreland . northumberland . cumberland . these he made to take an oath , that they would themselves , bona fide , in good faith , and without any deceit or trick , ( 't is the same author whose words i make use of ) keep the under-written assizes , and cause them inviolably to be kept by the men of the kingdom . he mentions them under this specious title . the assises of king henry , made at clarendon , and renewed at northampton . . if any one be called to do right ( or be served with a writ ) before the justices of our lord the king , concerning murder , or theft , or robbery , or the receiving and harbouring of those who do any such thing ; or concerning forgery , or wicked setting fire of houses , &c. let him upon the oath of twelve knights of the hundred ; or if there be no knights there , then upon the oath of twelve free and lawful men , and upon the oath of four men out of each village of the hundred , let him go to the ordeal of water , and if he perish , i. e. sink , let him lose one foot . the knights who are wanting here , are perhaps those who hold by knights service , or if you had rather , that hold by fee ; betwixt whom , and those who served in war for wages or pay , which in the books of fees are called solidatae ( the same peradventure as by caesar are termed soldurii , that is , soldiers ; by nicolaus damascenus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by our monks , bracton , otho frisingensis , and radevicus , in the camp laws of barbarossa , are styled servientes , that is , serjeants ) there is an apparent difference ; both of them being placed far below the dignity of those honorary knights , who are called equites aurati . but yet i do very well know , that these honorary knights also were of old time , and are now by a most certain right called forth to some tryals by jury . to the kings great or grand assise ( i say ) and to a suit of law contested , when a baron of parliament is party on one side , i. e. plaintiff or defendant . to the assise , in that it is the most solemn and honourable way of tryal , and that which puts an utter end to the claim of the party that is cast . to such an unequal suit , that there may be some equality of name or title as to some one , at least , of the judges ( for the jury or twelve men are upon such occasion judges made ) and as to the more honourable of the two parties , whether plaintiff or defendant . for the peers of parliament , who are the greater nobles ( amongst whom by reason of their baronies , arch-bishops and bishops , heretofore a great many abbots ) such as are dukes , marquesses , earls , viscounts , and barons ; who though they be distinguished by order and honorary titles , yet nevertheless they sit in parliament , only as they are barons of the realm . and those who at the kings pleasure are called in by letters of summons , as lawyers term it , are styled chevaliers , not barons . for that of chevalier was a title of dignity ; this of baron anciently rather of wealth , and great estate . which title only such writs of summons bestowed till richard the seconds time , who was the first that by patent made john bea●champ of holt , baron of kiderminster : now both ways are in fashion . chap. xvi . the person convict by ordeal , to quit the realm within forty dayes . why forty dayes allowed . an account of the ordeals by fire and water . lady emme clear'd by going over burning coulters . two sorts of tryal by water . learned conjectures at the rise and reason of these customs . these ordeals , as also that of single combat condemned by the church . . at northampton it was added for the rigour of justice , ( remember what was said in the foregoing chapter ) that he should in like manner lose his right hand or fist with his foot , and forswear the realm , and within forty dayes go out of the kingdom into banishment . ( he had the favour of forty dayes allowed him , so saith bracton , that in the mean time he might get help of his friends to make provision for his passage and exile . ) and if upon the tryal by water he be clean , i. e. innocent , let him find pledges , and remain in the realm , unless he be arighted for murder , or any base felony , by the community or body of the county , and of the legal knights of the countrey , concerning which , if he be arighted in manner aforesaid , although he be clean by the tryal of water ; nevertheless let him quit the realm within forty dayes , and carry away his chattels along with him , saving the right of his lords , and let him forswear the realm at the mercy of our lord the king. here let me say a little concerning the tryal by fire and water , or the ordeals . it is granted , that these were the saxons wayes of tryal , rashly and unadvisedly grounded upon divine miracle . they do more appertain to sacred rites , than to civil customs ; for which reason we past them by in the former book , and this place seemed not unseasonable to put the reader in mind of them . he who is accused , is bound to clear himself ( 't is ralph glanvill writes this ) by the judgement of god , to wit , by hot burning iron , or by water , according to the different condition of men : by burning hot iron , if it be a free-man ; by water , if he be a countrey-man or villain . the party accused did carry in his hand a piece of iron glowing hot , going for the most part two or three steps or paces along , or else with the soles of his feet did walk upon red hot plough-shares or coulters , and those , according to the laws of the franks and lombards , nine in number . the lady emme the confessor's mother being impeached of adultery with aldwin bishop of winton , was wonderfully cleared by treading upon so many , and is famous for it in our histories , being preserved safe from burning , and proved innocent from the crime . there were two sorts of watery ordeal or tryal by water ; to wit , cold or scalding hot . the party was thrown into the cold water , as in some places at this day witches are used : he who did not by little and little sink to the bottom , was condemned as guilty of the crime , as one whom that element , which is the outward sign in the sacrament of regeneration , did not admit into its bosome . as to scalding water , ones arm in that manner thrust in up to the elbow , made a discovery of the truth ; and aelstan a monk of abendon , afterward bishop of shirburn , thrusting in his bare hand into a boiling cauldron , shewed himself with some pride to his abbot . but that they say , that rusticks or vassals only were tryed by water , ( for water is ascribed to the earthly and ignoble nature , fire to the heavenly ; so that from the use of fire peculiar to man , firmianus lactantius hath fetcht an argument for the immortality of the soul ) that this is not altogether so true , is made out by that one example of john , a noble and rich old man , who in the time of king henry the second , when , being charged with the death of his brother the earl of ferrers , he could not acquit himself by the watery tryal , was hang'd on a gallows . whence or by what means both these customs were brought in among christians , 't is none of my business to make an over strait inquiry . i remember that fire among the ancients was accounted purgative ; and there is one in a tragedy of sophocles intitled antigone , who of his own accord profest to king creon , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 — that in his hands be red-hot gads would kéep , and over burning gleads would bare-foot créep . ●o shew himself innocent as to the burial of polynices . i pass by in silence that pythagorical opinion , which placeth fire in the centre of the universe , where jupiter hath his prison ; which fire some , however the peripateticks stiffly oppose it , would have to be in plain terms the sun , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . who all things overlooks , and all things hears . yet i shall not omit this , that in the holy bible the great and gracious god hath of a truth discovered himself to mortal conception in the very name of fire , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as a thing agreeable to divinity , as saith john reuchlin ; and that s. paul hath , according to the psalmists mind , stiled the ministers of god , a flame of fire . and indeed to abuse the holy scriptures , by mis-interpreting them , is a custom too ancient and too too common . homer and virgil both sing of — imperjuratam stygiamque paludem , dii cujus jurare timent & fallere numen . that is , — th' unperjur'd stygian lake , whose name the gods do fear in vain to take . we read of the infants of the celts , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . try'd in the streams of sacred flood , whether of right or of ba●e blood ; as it is in the greek epigrams : of the fountains of sardinia , in solinus : of the moist februa , or purifications by water , in ovids fastorum : and of those rivers that fell from heaven , and their most wonderful and hidden natures , among natural philosophers . but most of these things were not known peradventure in our ordeals . yet martin del rio , a man of various reading and exquisite learning , hath in his magical inquiries offered a conjecture , that the tryal by water crept into use from a paltry imitation of the jews cup of jealousie . truth is , a great many instances both of this way of trying by water and of that by fire , are afforded by the histories of the danes , saxons , germans , franks , spaniards , in a word , of the whole christian world. an quia cunctarum concordia semina rerum , sunt duo discordes ignis & vnda dei , junxerunt elementa patres ? was it , saith the poet , 'cause the two diff'ring gods , alwayes at ods , that of water , that of fire , which yet in harmony conspire the seeds of all things fitly joyn'd ; therefore our fathers have these two combin'd . or was it , because that the etymologie of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hashamaim , that is , heaven , ( for the heavens themselves were the feigned gods of the gentiles ) some are pleased with the deriving it from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 esh , i. e. fire and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 maim , i. e. water : let some more knowing janus tell you . — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . for my part i shall not this game pursue ; why should i lose my time and labour too ? the superstitions and fopperies , the rites and usages , the lustrations and purifyings , the prayers and litanies , and the solemn preparations ( in consecrating and conjuring the water , &c. ) you have in will. lambard in his explications of law terms , and in matthew parker arch-bishop of canterbury in his antiquities of the brittish church . both of them together , with that other of single combat or duel ( for that also was reckoned among the ordeals ) were judged by the church of rome to be impious customs ; and it is long since that they have been laid aside , and not put in practice among the common ordinary wayes of peoples purging and clearing themselves . well , now let me come back to my own country again , and return to northampton . chap. xvii . other laws : of entertaining of strangers . an uncuth , a gust , a hogenhine ; what of him who confesseth the murder , &c. of frank pledge . of an heir under age . of a widows dowry . of taking the kings fealty . of setting a time to do homage . of the justices duty . of their demolishing of castles . of felons to be put into the sheriffs hands . of those who have departed the realm . . let it be lawful for no man , neither in borough nor in village or place of entertainment , to have or keep in his house , beyond one night , any stranger , whom he will not hold to right , ( that is , answer for his good behaviour ) unless the person entertain'd shall have a reasonable essoin or excuse , which the master or host of the house is to shew to his neighbours ; and when the guest departs , let him depart in presence of the neighbours , and in the day time . hither belongs that of bracton . he may be said to be of ones family , who shall have lodged with another for the space of three nights ; in that the first night he may be called uncuth , i. e. unknown , a stranger ; but the second night gust , i. e. a guest or lodger ; the third night hogenhine ( i read hawan man ) i. e. in greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in latin familiaris , one of the family . . if any one shall be seised for murder , or for theft , or robbery , or forgery , and be knowing thereof , ( i. e. shall confess it ) or for any other felony which he shall have done , before the provost ( the master or bailiff of the hundred or borough , and before lawful men , he cannot deny it afterwards before the justices . and if the same person without seisin ( with seisin in this place is the same as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as we commonly say in our language , taken with the manner ) shall recognize or acknowledge any thing of this nature before them , this also in like manner he shall not be able to deny before the justices . . if any one shall dye holding in frank pledge ( i. e. having a free tenure ) let his heirs remain in such seisin , as their father had on the day he was alive and dyed , of his fee , and let them have his chattels , out of which they may make also the devise or partition of the deceased , ( that is , the sharing of his goods according to his will ) and afterwards may require of their lord , and do for their relief and other things , which they ought to do as touching their fee ( i. e. in order to their entring upon the estate . ) . if the heir be under age , let the lord of the fee take his homage , and have him in custody or keeping for as long time as he ought ; let the other lords , if there be more of them , take his homage , and let him do to them that which he ought to do . . let the wife of the deceased have her dowry , and that part of his chattels , which of right comes to her . in former times peradventure it was a like generally practised by the english , that the wife and children should have each their lawful thirds of the estate ; ( each of them , i say , if they were in being ; but half to the wife , if there were no issue ; and as much to the children , if the wife did not survive her husband : ) as it was practised by the romans of old according to the falcidian law , and of later time by the novells of justinian , that they should have their quarter ▪ part . for i see that those of normandy , of arras , of ireland , people that lay round about them , had the same custom . of this you are to see glanvill , bracton , the register of briefs or writs , and william lindwood , beside the records or yearly reports of our law. . let the justices take the fealties of our lord the king before the close of easter , and at furthest before the close of pentecost ; namely , of all earls , barons , knights and free-holders , and even of rusticks or vassals , such as have a mind to stay in the realm ; and he who will not do featly , let him be taken into custody as an enemy of our lord the king. . the justices have also this to give in charge , that all those , who have not as yet done their homage and allegiance to our lord the king , do at a term of time ; which they shall name to them , come in and do homage and allegiance to the king as to their liege lord. . let the justices do all acts of justice and rights belonging to our lord the king by a writ of our lord the king , or of them who shall be in his place or stead , as to a half-knights fee and under ; ( a knights ' fee in an old book , which pretends to more antiquity by far than it ought , concerning the manner of holding parliaments , is said to be twenty pounds worth of land in yearly revenue , but the number prefixt before the red book of the exchequer goes at the rate of six hundred and eighty acres : ) unless the complaint be of that great concern , that it cannot be determined without our lord the king , or of that nature that the justices by reason of their own doubting refer it to him , or to those who shall be in his place and stead . nevertheless let them to the utmost of their ability intend and endeavour the service and advantage of our lord the king. . let the justices provide and take care , that the castles already demolisht , be utterly demolished , and that those that are to be demolished , be well levelled to the ground . and if they shall not do this , our lord the king may please to have the judgement of his court against them , as against those who shew contempt of his precept . . a thief or robber , as soon as he is taken , let him be put into the sheriffs hands to be kept in safe custody ; and if the sheriff shall be out of the way , let him be carried or brought to the next constable of a castle , and let him have him in custody , until he deliver him up to the sheriff . . let the justices according to the custom of the land , cause inquiry to be made of those , who have departed or gone out of the realm . and if they shall refuse to return within a term of time that shall be named , and to stand to right in the kings court ( i. e. to make their appearance , and there to answer , if any thing shall be brought in against them ) let them after that be outlawed , and the names of the outlaws be brought at easter and at the feast of st. michael to the exchequer , and from thence be sent to our lord the king. these laws were agreed upon at northampton . chap. xviii . some laws in favour of the clergy . of forfeitures on the account of forest or hunting . of knights fees . who to bear arms , and what arms. arms not to be alienated . no jew to bear arms. arms not to be carryed out of england . rich men under suspicion to clear themselves by oath . who allowed to swear against a free-man . timber for building of ships not to be carryed out of england . none but free-men to bear arms. free-men who . rusticks or villains not such . . that henceforth a clergy-man be not dragg'd and drawn before a secular judge personally for any crime or transgression , unless it be for forest or a lay-fee , out of which a lay-service is due to the king , or to some other secular lord. this priviledge of the clergy the king granted to hugh the popes cardinal legate , by the title of s. michael à petra , who arrived here on purpose to advance the popish interest . . furthermore , that arch-bishopricks , bishopricks or abbacies be not held in the kings hand above a year , unless there be an evident cause , or an urgent necessity for it . . that the murderers or slayers of clergy-men being convicted , or having confest before a justice or judge of the realm , be punished in the presence of the bishop . . that clergy-men be not obliged to make duel : i. e. not to clear themselves , as others upon some occasion did , by single combat . . he ordained at woodstock ( we transcribe these words out of hoveden ) that whosoever should make a forfeit to him concerning his forest , or his hunting once , he should be tyed to find safe pledges or sureties ; and if he should make a second forfeit , in like manner safe pledges should be taken of him ; but if the same person should forfeit the third time , then for his third forfeit , no pledges should be taken , but the proper body of him who made the forfeit . moreover , we meet with these military laws , or laws of knights fees , made for tenants and other people of the common sort . . he who hath one knights fee ( 't is the aforesaid hoveden speaks ) let him have an habergeon or coat of male , and a helmet or head ▪ piece and a buckler or target and a lance : and let every knight have so many habergeons , and helmets , and targets , and lances , as he shall have knights fees in his demeans . . whatsoever free-holder that is a lay-man , shall have in chattel or in rent and revenue to the value of sixteen marks , let him have a coat of male , and a head-piece , and a buckler , and a lance. . whatsoever lay person being a free-man , shall have in chattel to the value of ten marks , let him have a little habergeon , or coat of male , and a capelet of iron , and a lance. . let all burghers or towns-men of a corporation , and the whole communities of free-men have a wambais , and a capelet of iron , and a lance. . let no one , after he hath once had these arms , sell them , nor pawn them , nor lend them , nor by any other way alienate them from himself , or part with them : nor let his lord alienate them by any manner of way from his man ( i. e. his tenant that holds under him ) neither by forfeit , nor by gift , nor by pledge , nor by any other way . . if any one shall dye having these arms , let them remain to his heir ; and if the heir be not of such estate or age , that he may use the arms , if there shall be need , ● let that person ▪ who shall have them ( the heir ) in custody , have likewise the keeping of the arms , and let him find a man , who may use the arms in the service of our lord the king , if there shall be need , until the heir shall be of such estate , that he may bear arms , and then let him have them . . whatsoever burgher shall have more arms , than it shall behove him to have , according to this assize , let him sell them , or give them away , or so dispose of them from himself to some other man , who may retain them in england in the service of our lord the king. . let no one of them keep by him more arms , than if shall behove him according to this assize to have . . let no jew keep in his possession a coat of male or an habergeon , but let him sell them , or give them , or in some other manner put them away , in that wise that they may remain in the service of the king of england . . let no man bear or carry arms out of england , unless it be by special order of our lord the king ; nor let any one sell arms to any one , who may carry them from england ; nor let merchant or other carry or convey them from england . . they who are suspected by reason of their wealth or great estate , do free or acquit themselves by giving their oaths . the justices have power or jurisdiction given them in the case for this purpose . if there shall be any , who shall not comply with them ( the justices ) the king shall take himself to the members or limbs of such persons , and shall by no means take from them their lands or chattels . . let no one swear upon lawful and free-men , ( i.e. in any matter against or concerning them ) who hath not to the value of sixteen or ten marks in chattel . . let no one , as he loves himself and all that he hath , buy or sell any ship to be brought from england ; nor let any one carry , or cause to be carryed out of england timber for the building of ships . . let no one be received or admitted to the oath of bearing arms but a free-man . to bring once for all something concerning a free man , that may not be beside the purpose . the ancient law of england bestowed that name only upon such persons , as many as , either being honoured by the nobility of their ancestors , or else out of the commonalty being of ingenuous birth ( to wit , of the yeomanry ) did not hold that rustick fee or tenure of villenage ) dedicated to stercutius ( the god of dunghils ) and necessarily charged and burthened with the plough tail , the wain , and the dray , which are the hard countrey-folks arms and implements . to this purpose makes the term of rustick or countrey-man above mentioned in the statutes of clarendon , and the place of glanvill cited in the tryal of ordeal . that the business may be more clearly asserted ; a suit of law being waged in the time of edward the first , betwixt john levin plaintiff and the prior of bernwell defendant ( i have taken the story out of an old manuscript , and the reports of our law , and the collection or body of the royal rescripts do agree to it ) it was then , after several disputes bandied to and fro , and with earnestness enough , decided by the judgement of the court , that those tenants which hold in fee from the ancient domain of the crown , as they call it , are by no means comprehended under the title of free-men ; as those who driving their labour around throughout the year pay their daily vows to ceres the goddess of corn , to pales the goddess of shepherds , and to triptolemus the inventer of husbandry or tillage , and keep a quarter with their gee hoes about their chattel . and now death hath put an end to king henry's reign . and i also having made an end of his laws , so far as histories do help me out , do at the last muster and arm my bands for the guard of my frontiers . i wish they may be of force enough against back-biters . chap. xix . of law-makers . our kings not monarchs at first . several of them in the same county . the druids meeting-place where . under the saxons , laws made in a general assembly of the states . several instances . this assembly under the normans called parliament . the thing taken from a custome of the ancient germans . who had right to sit in parliament . the harmony of the three estates . but however laws are not without their makers and their guardians , or they are to no purpose . it remaineth therefore that we say somewhat in general of them . they are made either by use and custom ( for things that are approved by long use , do obtain the force of law ) or by the sanction and authority of law-givers . of ancient time the semnothei , the kings and the druids were law-givers ; amongst the britans i mean. concerning the semnothei whatsoever doth occurr you had before . the kings were neither monarchs of the whole island , nor so much as of that part of brittany that belonged to the angles . for there were at the same time over the single county of kent four kings ; to wit , cyngetorix , carvilius , taximagulus , and segonax ; and at the same rate in other counties . wherefore we have no reason to make any question , but that part wherein we live , now called england , was governed by several persons , and was subject to an aristocracy : according to what polydore virgil , john twine , david powell and others have informed us . the druids were wont to meet , to explain the laws in being , and to make new ones as occasion required , as is most likely , in some certain place designed for that purpose ; as now at this very time all matters of law go to be decided at spire in germany , at westminster-hall in england , and paris in france . their publick convention or meeting-place was constantly , as julius caesar tells us , in the borders of the carnutes the middle region of all france . some think that a town at eight miles distance from the metropolis of those people commonly called dreux , was designed for that use . whilst the saxons governed , the laws were made in the general assembly of the states or parliament . in the front of king ina's laws ( 't is above eight hundred and eighty years that he first reigned ) we read thus , it ine mid godes gift west-saxna cyning mid getbeat a mid lere cenredes mines fader a hedde a erconwald mine hiscops a mid eallum minum , ealdor mannum , & tham yldestan witan mines theode be beodeth , &c. which in our present . english speaks thus , i ina by the grace of god king of the west-saxons , by the advice and order of kenred my father , and of hedda and erconwald my bishops , and of all my aldermen , and of the elders and wise men of my people , do command , &c. there are a great many instances of this kind in other places . moreover witlaf and bertulph , who were kings of the mercians near upon eight hundred years ago , do in their instruments under their hands make mention of synods and councils of the prelates and peers convened for the affairs of the kingdom . and an ancient book has this passage of abendon , here was the royal seat , hither when they were to treat of the principal and difficult points of state , and affairs of the kingdom , the people were used to meet and flock together . to this may be added that which malmesbury sayes of king edward in the year of our lord . the king gathered a synod or assembly of the senators of the english nation , over which did preside pleimund arch-bishop of canterbury interpreting expresly the words of the apostolical embassy . these assemblies were termed by the saxons , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. meetings of the wise men , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. the great assemblies . at length we borrowed of the french the name of parliaments , which before the time of henry the first , polydore virgil sayes , were very rarely held . an usage , that not without good reason seems to have come from the ancient germans . so tacitus sayes of them , concerning smaller matters the princes only , concerning things of greater concern , they do all the whole body of them consult ; yet in that manner , that those things also , which it was in the peoples power to determine , were treated of by the princes too . and i have one that hath left it in writing , that when there was neither bishop , nor earl , nor baron , yet then kings held their parliaments : and in king arthur's patent to the university of cambridge ( for ye have my leave , if you can find in your heart , to give credit to it , as john key does ) by the counsel and assent of all and singular the prelats and princes of this realm , i decree . there were present at parliaments , about the beginning of the normans times , as many as were invested with thirteen fees of knights service , and a third part of one fee , called baron's , from their large estates : for which reason perhaps john cochleius of mentz , in his epistle dedicatory to our most renowned sir thomas more , prefixt before the chronicle of aurelius cassiodorus , calls him baron of england . but henry the third , the number of them growing over big , ordered by proclamation , that those only should come there , whom he should think sit to summon by writ . these assemblies do now sit in great state , which with a wonderful harmony of the three estates , the king , the lords and the commons , or deputies of the people , are joyned together , to a most firm security of the publick , and are by a very learned man in allusion to that made word in livy , panaetolium from the aetolians , most rightly called pananglium , that is , all england . as in musical instruments and pipes and in singing it self , and in voices ( sayes scipio in tully's books of the common-wealth ) there is a kind of harmony to be kept out of distinct sounds , which learned and skilful ears cannot endure to hear changed and jarring ; and that consort or harmony , from the tuning and ordering of voices most unlike ; yet is rendred agreeing and suitable : so of the highest and middlemost and lowermost states shuffled together , like different sounds , by fair proportion doth a city agree by the consent of persons most unlike ; and that which by musicians in singing is called harmony : that in a city is concord , the straightest and surest bond of safety in every common-wealth , and such as can by no means be without justice . but let this suffice for law-makers . chap. xx. the guardians of the laws , who . in the saxons time seven chief . one of the kings among the heptarchs styled monarch of all england . the office of lord high constable . of lord chancellor , ancient . the lord treasurer . alderman of england , what . why one called healfkoning . aldermen of provinces and graves , the same as counts or earls and viscounts or sheriffs . of the county court , and the court of inquests , called tourn le viscount . when this court kept , and the original of it . i do scarce meet before the saxons times with any guardians of the laws different from these law-makers . in their time they were variously divided , whose neither name nor office are as yet grown out of use . the number is made up , to give you only the heads , by these ; to wit , the king , the lord highconstable , the chancellor , the treasurer , the alderman of england , the aldermen of provinces and the graves . those of later date and of meaner notice i pass by , meaning to speak but briefly of the rest . the king was alwayes one amongst the heptarchs or seven rulers , who was accounted ( i have beda to vouch it ) the monarch of all england . ella king of the south-saxons ( so sayes ethelwerd ) was the first that was dignified with so high a title and empire , who was owner of as large a jurisdiction as ecbright ; the second was ce●lin king of the west-angles ; the third aethelbrith king of the kentish-men ; the fourth redwald king of the easterlings ; the fifth edwin king of northumberland ; the sixth oswald ; the seventh osweo , oswald's brother ; after whom the eighth was ecbright . his west-saxon kingdom took in the rest for the greatest part . the office of lord high constable , which disappeared in edward duke of buckingham , who in henry the eighth's time lost his head for high-treason , was not seen till the latter end of the saxons . one alfgar staller is reported by richard of ely monk , to have been constable to edward the confessor , and mr. camden mentions a dwelling of his upon this account called plaissy in the county of middlesex . he of ely sets him out for a great and mighty man in the kingdom . and indeed formerly that magistrate had great power , which was formidable even to kings themselves . they who deny there were any chancellors before the coming in of the normans , are hugely mistaken . nor are they disproved only out of the grant of edward the confessor to the abbot of westminster , which i am beholden to mr. lambard for , at the bottom of which these words are set down : i syward publick notary , instead of rembald the kings majesties chancellor , have written and subscribed this paper ; but also out of ingulph , who makes mention of turketulus , some while after that abbot of crowland , chancellor of king edred , by whose decree and counsel were to be handled & treated whatsoever businesses they were , temporal or spiritual , that did await the judgement of the king ; and being thus treated of by him , might irrefragably stand good . and francis thinn , that learned antiquary has reckoned up several , who have discharged this office ; as turketill to king ethelbald , swithin bishop of winchester to king egbert , vlfin to king athelstan , adulph to king edgar , alsy abbot and prelate of ely to king ethelred . concerning which office and the seals , which the chancellor in old time had the keeping of , i had rather you would consult with camden's tribunals or seats of justice , and those things which john budden at wainfleet doctor of laws has brought out of the archives into his palingenesia , than seek them at my hands . as for treasurers , dunstan was so to king edred , and hugolin to the confessor . but that fifth title of alderman of england , is an unusual one . yet , if i don't mistake my self , he was the chief president in tryals at law , and an officer to keep all quiet at home ; the same as now perhaps is commonly called the lord chief justice of england . this remarkable name i do not meet with , neither in the monkish chronologers , which are to be had at the shops , nor in the records of our laws . but a private history of the abbey of ramsey in huntingdon-shire has given us notice of one ailwins tomb with this inscription , hic . requiescit . ailwinus . incliti . regis . eadgari . cognatus . totius . angliae . aldermannus . et . hujus . sacri . coenobii . miraculosus . fundator . that is , here resteth ailwin kinsman of the renowned king edgar , alderman of all england , and the miraculous founder of this sacred monastery . and by reason of his great authority and favour which he had with the king , by a nick name they called him healfkoning , i. e. half-king . now h●nry of huntingdon sayes , that tostius earl ( or to use his phrase consul ) of northumberland , and harald sons of godwin earl of kent were justices of the realm . aldermen may aptly be termed by the word senators . those judges did exercise a delegated power throughout the provinces , called counties or shires , and the graves and under-delegated power from them . the word is as much as governours , and is the same thing , as in high dutch grave in landgrave , burgrave , palsgrave , &c. and what amongst some of our own people reev . we shall call them both , as that age did , in a latin term , the one comites , i. e. counts or earls , the other vicecomites , that is , viscounts or sheriffs . the name of count is every where met with amongst the most ancient of the monks , which yet does very often pass into that of duke in the subscription of witnesses . and in the charter of the foundation of chertsey abby in surrey , frithwald stiles himself subregulus , i.e. an under kingling or petty vice-roy to wulpher king of the mercians ; make no question of it , he meant he was a count. a viscount and a vice-lord are more than very like , they are the very same . ingulph sayes it above . and in the last hand-writing of king edred we have , i bingulph vice-lord advised it , i alfer viscount heard it . these counts and viscounts , or earls and sheriffs had in their counties their several courts both for private and for publick matters . for private affairs they had every month a meeting called the county court. let every grave , as we have it in edward the elder 's laws , every fourth week convene and meet the people in assembly ; let him do equal right to every one , and determine and put an end to all suits and quarrels , when the appointed days shall come . for publick business king edgar ordered the court of inquests or inquiries , called tourn le uiscount . let a convention or meeting be held twice every year out of every county , at which let the bishop of that diocess , and the senator , ( i. e. the alderman ) be present ; the one to teach the people the laws of god ; the other the laws of the land. what i have set down in william the first at the end of the fourth chapter of this second book , you ought to consider of here again in this place . the inhabitants did not meet at this court of inquests at any season promiscuously and indifferently , but as it is very well known by the use and ancient constitutions of the realm , within a month either after easter , or after michaelmas . in which court , seeing that not only the count , as now a dayes the viscount or sheriff does , but also the bishop did preside ; it does not at all seem difficult to trace the very original of this temporary law. that peradventure was the synod of antioch held in pope julius the first 's time , and acknowledged in the sixth general council held at constantinople . in this latter there are expresly and plainly two councils or meetings of the bishops to be kept every year within three weeks after easter , and about the middle of october , ( if there be any small difference in the time , it can be no great matter of mistake ) . you may help your self to more other things of meaner note out of what has been said before about hundreds , bourghs and the like . and this may serve in brief for the saxons , who were entrusted with the care of their laws . chap. xxi . of the norman earls . their fee. their power of making laws . of the barons , i.e. lords of manours . of the court-baron . it s rise . an instance of it out of hoveden . other offices much alike with the saxons . i shall be briefer concerning the normans , i mean their earls and barons . their counts or earls before the conquest , except those of leicester , and perchance some others , were but officers , and not as yet hereditary . when william bore the sway , they began to have a certain fee and a descent of patrimony ; having together with their title assigned to them a third part of the revenues or rents , which did arise out of the whole county to the exchequer . this custom is clear enough in gervase of tilbury in the case of richard de red●eriis made earl of devonshire by henry the first , & jeoffrey de magna villa made earl of essex by mawd the empress . it seems that the saxon earls had the self-same right of sharing with the king. so in doomsday book we find it ; the queen edeua had two parts from ipswich in suffolk , and the earl or count guert the third : and so of norwich , that it paid twenty pound to the king , and to the earl ten pound : so of the revenues of the borough of lewes in sussex , the king had two shares , and the earl the third . and oxford paid for toll and gable , and other customary duties twenty pound a year to the king , besides six quarts of honey , and to earl algar ten pound . to conclude , it appears also that these norman earls or counts had some power of making laws to the people of their counties . for instance , the monk of malmesbury tells us , that the laws of william fitz-osborn earl of hereford remained still in force in the said county , that no souldier for whatsoever offence should pay above seven shillings . the writings and patents of the men of cornwall concerning their stannaries or tinn-mines do prove as much ; nor need i tell the story , how godiva lady to the earl leofrick rid on horse-back through the streets of coventry with her hair disshevelled , all hanging about her at full length , that by this means she might discharge them of those taxes and payments , which the earl had imposed upon them . out of the countreys ( wherein all estates were subject to military service ) the barons had their territories , as we call them mannors ; and in them their courts to call their tenants together , at the end of every three weeks , and to hear and determine their causes . a civilian , one vdalricus zazius , would have the original of these courts among other nations , to have come by way of imitation from romulus his making of lords or patrons , and their clanns or tenants . the use of them at this day is common and ordinarily known . but to shew how it was of old , we will borrow out of hoveden this spark of light . john marshall complained to henry the second , that whereas he had claimed or challenged in the arch-bishops court a piece of land to be held from him by right of inheritance , and had a long time pleaded upon it , he could obtain no justice in the case , and that he had by oath falsified the arch-bishops court , ( that is , proved it to be false by oath , according to the custom of the realm : to whom the arch-bishop made answer , there has been no justice wanting to john in my court ; but he , i know not by whose advice , or whether of his own head , brought in my court a certain toper , and swore upon it , that he went away from my court for default of justice ; and it seemed to the justices of my court , that he did me the injury , by withdrawing in that manner from my court ; seeing it is ordained in your realm , that he who would falsifie anothers court must swear upon the holy gospels . the king not regarding these words , swore , that he would have justice and judgement of him ; and the barons of the kings court did judge him to be in the kings mercy ; and moreover they fined him five hundred pound . as to doing justice in all other cases , and managing of publick affairs , the normans had almost the same names and titles of officers and offices as the saxons had . finis . a brief chronology to attend and assist the history . in the year of the world .   . samothes , if there ever were such a man , bears rule . . brutus makes a descent , ( that is , lands with his trojans ) in cornwall or devonshire . . dunvallo molmutius swayes the scepter . . martia , dowager of king quintilen , is queen regent during the minority of her son sisillius the first . . caius julius caesar arrives at deal on the sea-coast of kent , and territa quaesitis ostendit terga britannis , that is , having inquiry made , after the britans bold , he turn'd his back , 't is said , his courage would not hold : and was the first that discover'd britanny to the romans . in the year of christ .   . claudius caesar emperour sends over aulus plautius with an army as his lieutenant general , and by degrees reduceth the countrey into the form of a roman province . . a colony of veterans or old roman souldiers is sent down to maldon in essex . . britanny is subdued or brought under the yoke by the conduct of junius agricola , in the time of domitian the emperour . . lucius or king lucy was the first christian king. forasmuch as he was of the same standing with pope eleutherius and the emperour commodus . whence it appears , that beda makes others mistake , and is himself mistaken in his wrong account of time in this affair . . the saxons , angles , jutes , danes , frisons , or friselanders arrive here from germany , taurus and felix then consuls , in the one and twentieth year of theodosius the younger . the common or ordinary account of writers sets it down the four hundred forty ninth year : but that great man both for authority and judgement william camden clarenceaux king at arms hath , upon the credit of ancient records , closed this epoch or date of time within that term of years , which i have set in the margin . . king ethelbert the first king of the english saxons , who profest christianity . . king egbert . . king alured or alfred . . king edgar . . canute or king knute the dane . . harold , eldest son to king knute , called for his swiftness harefoot . . edward the confessor , after whom harold son to godwin earl of kent usurp't the throne , where he continued only nine months . . william duke of normandy , after a battel fought upon the plain near hastings , got the dominion or soveraignty of the british island . . william rufus , second son of the conquerour . . henry the first , younger brothor to rufus . . king stephen , count of blois in france , nephew to henry by his sister adela . . henry the second , grand-child to henry the first by his daughter mawd the empress , and jeoffrey count of anger 's in france . finis . brief notes upon some of the more difficult passages in the title-page . common and statute law ] so i render jus prophanum , as prophane is opposed to sacred and ecclesiastical , as himself explains the term in his preface out of festus . otherwise it might have been render'd civil law , as relating to civil affairs and the government of state , not medling with the canons and rules of the church ; but that the civil law with us is taken generally in another sense for the imperial law , which however practised in several other nations , hath little to do in england , unless in some particular cases . of english britanny ] that is , that part of britain , which was inhabited by the angles , in latin called anglo-britannia , by us strictly england ; as for distinction , the other part of the island , wales , whither the welsh , the true and ancient britans , were driven by the saxons , is called cambro-britannia , that is , welsh britanny ; and scotland possest by the scots , is in like manner called scoto-britannia , that is scotch-britanny , which now together with england , since the union of the two kingdoms , goes under the name of great britain . in the author's preface . the guardian of my threshold ] so 〈◊〉 among the romans was the god of the threshold , qui limentis , i. e. liminibus pr●est ; but it may be taken for the officer of the gate , the porter , who gives admission to strangers . in a different character ] accordingly in the latin the author's citations are printed in italick ; which , because they are so frequent , i thought fit rather to notifie by a distinction , as usual , in the margin ; thus , intercidona , pilumnus & deverra ] these were heathen deities , to whom they attributed the care of their children , who else they thought silvanus migh● ▪ like oberon king of the fairies , surprize or do some other mischief to . in the first book . chap. . pag. . lin . . among the celts and gauls ] who are reckoned for one and the same people ; as for instance , those gauls , who removed into the lesser asia , mixing with the greeks , were called gallo-graeci , but by the greeks were styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whence by contraction , i suppose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . l. . bellagines , that is , by-laws . ] from by , that is , a village , town or city , and lagen , which in gothish is a law ; so that it signifies such laws , as corporations are govern'd by . the scots call them burlaws , that is , borough-laws . so that bellagines is put for bil●gines or burlagines . this kind of laws obtains in courts leet and courts baron , and in other occasions , where the people of the place make their own laws . chap. ii. pag. . l. . adrastia , rhamnusia & nemesis . ] which is all but nemesis the goddess of revenge , called adrastria from king adrastus , who first built her a temple ; and rhamnusia from rhamnus a village in the athenian territory , where she was worshipped . l. . elohim , that is , gods. ] and so judges are properly called according to the original notation of the word , whose root 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ala● , though in hebrew it signifie to curse , yet in the arabick language , a descendent of the hebrew , it betokens to judge . thus 't is said in the psalms , god standeth in the congregation of the gods , and i have said , ye are gods , &c. l. . it subjoins to it the name of god. ] to wit , that name of his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 el , which signifies a mighty god. in this sense the cedars of god ar● lofty stately cedars ; and by moses his being fair to god , is meant , that he was exceeding fair . pag. . lin . . not only berecynthia , but also juno , cybele . ] why ! cybele is the very same goddess , who was called berecynthia from berecynthus a hill of phrygia ( as also cybelus was another ) where she was worshipped . and she had several such names given her from the places of her worship , as dindymene , pessinuntia , idaea , phrygia . this then was a slip of our worthy author's memory or his haste . chap. iii. pag. . lin . . not by the number of dayes , but of nights . ] thus in our common reckoning we say a sennight , that is , seven nights ; septinoctium , for what in latin they say septimana , seven mornings ; and a fortnight , that is , fourteen nights . again for sundayes and holy-dayes , the evening , which concludes the fore-going day , is said to be their eve , that is , evening . and the grecians agree with us in setting the night before the day , in that they call the natural day , which is the space of twenty four hours , comprehending day and night , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 night-day , not day-night . chap. iv. pag. . lin . . king phranicus . ] it is so ordinary a matter for historians , when they treat of things at great distance of time , to devise fables of their own , or take them up from others , that i doubt not but this phranicus was designed to give name to france ; whereas it was so called from the franks , who came to plant there out of franconia a countrey of germany , called east-france . l. . with corinus one of the chief of his company . ] from whom cornwall had its name , formerly called in latin corinia or cornavia ( say some ) now cornubia . and possibly if that were so , corinium also or cirencester , a town in glocestershire , and corinus too , the river churne , that runs by it , own their appellations to the same noble person . l. . new troy , that is , london . ] called also troynovant , and the people about it called trinobantes or trinovantes , from whom also the city it self was styled augusta trinobantum , that is , the royal seat of the new trojans . l. . king belin. ] who gave name to billinsgate , that is , belin's gate , as king lud to ludgate . pag. . lin . . eumerus messenius . ] some such fabulous writer as our sir john mandevil , who tells us of people and countreys , that are no where to be found in the world. chap. vi. pag. . lin . . in the time of brennus and belinus . ] the first of these was general of the gauls , who were called senones , and going into italy with them , sackt rome . there he built the city verona , called by his name brennona ; as he had done brennoburgum now brandenburg in germany . from his prowess and famed exploits , it is supposed that the britans or welsh do to this day call a king brennin . of the other , viz. belinus , some mention hath been made already . chap. vii . pag. . lin . . locrinus , camber and albanactus . ] from the first of these three brethren , to wit , locrinus , it is said , that the welsh call england lboegr , that falling to the eldest sons share ; from the second camber , that a welsh-man is named cumra , and the countrey cambria ; and from the third albanactus , that scotland , or at least good part of it retains the term of albania , a title still belonging to the king of britain's second brother , the duke of york . though for my part for this last name of albanactus i am somewhat of opinion , that it might be devised by some smattering monk purposely in favour of the trojan story , as much as to say in a mungrel word albae 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 king of alba , a city of italy built by one of aeneas his sons . l. . gavelkind . ] from the saxon gafel or gafol , a debt or tribute , and tyn or kynd , the kindred or children ; or , as mr. lambard , gif eal tyn i. e. , given to all who are next of kin ; or , as vorstegan , give all kind i. e. , give to each child his part . an ancient custom of the saxons , whereby the fathers estate was equally divided amongst his sons ; as it is still amongst the daughters , if there be no sons . it obtains still in several places , especially in kent by the concessions of the conqueror . pag. . lin . . the laws of second venus . ] not having plato by me , nor any other means to inform my self better , i imagine that by the first venus they mean the force of lust and beauty , which doth so naturally incline people to a desire of union and copulation ; and by the second venus consequently is intended that prudential reason , by which men according to wholsome and equal laws easily suffer themselves to be gathered into societies , and to comply with one another in mutual indearments . p. . lin . . jupiter's register . ] 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the greek proverb , is the skin of that goat , which nursed him in his childhood , of which after her death in honour of her memory , and reward of her services , he made his register , to enroll therein and set down upon record all the concerns of mankind . lin. . of some aethalides . ] he was the son of mercury , and had the priviledge allowed him to be one while among the living , another while among the dead , and by that means knew all that was done among either of them . the moral is plain , that he was a great scholar , who what with his resin'd meditation and study of books , which is being among the dead , and what by his conversation with men , had attained great knowledge and prudence : so that pythagoras himself , as modest as he was to refuse the title of wise man , and to content himself with that of a philosopher , that is , a lover of wisdom , yet was fond of the counterfeit reputation of being thought to be he , giving out according to his own doctrine of transmigration , that he was the man. chap. ix . p. . lin . . what ? that those very letters , &c. ] the authors expression here may seem somewhat obscure ; wheresore i think fit to set down this by way of explication . he sayes , that the letters which the greeks used in caesar's time , and which we now use , are rather such as the greeks borrowed from the gauls than what they had originally of their own . this he proves in the end of this paragraph by the judgement of several learned men. so then , if this were so , caesar , who without all question was well enough acquainted with the greek letters then in use , yet in all likelihood did not so well know what the true odl gallick letters were , the people being strangers to the romans , and he having but lately had any converse with them , and so might very probably mistake , in thinking that , because the letters were the same , the gauls might borrow the greek letters to make use of ; whereas the contrary ( to wit , that the greeks , after the disuse of the phoenician letters , which cadmus had brought over into greece , took the gallick in their stead ) is averr'd by lazins , becanus , &c. chap. x. pag. . lin . . from the sixth moon . ] whether that were from the sixth month they began their reckoning , which among the romans , was august , therefore called formerly sextilis , as the rest that follow according to order , are styled september , october , &c. or whether it were from the sixth day of the moon 's age , ( as they apply by way of proverb quartâ lunâ nati to the unfortunate , hercules having been born on such a day of the moon ) is none of my business to determine , but to leave it to the readers own inquiry and judgement . lin. . nestor's triple age . ] which if it be reckoned according to this account of thirty years to an age , makes but ninety years in all . and though that also be a great age for a man to handle arms , and to attend the duty and service of war , yet that is not so extraordinary a case , but that others may be found in story to stand in competition with him . besides it falls short of that description , which homer hath given of him , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which implyes , that he had out-lived two generations ( to wit , the fathers which had been bred up with him , and the sons which had grown up into his acquaintance ) and that now he reigned among the grand-children , the third generation , the two former having been swept off the stage . and in this sense the latins took it , as appears by horace , who sayes of him ter a●vo functus , that he had gone through the course of nature , lived out the life of man , three times over ; and in that he is styled by another old poet triseclisenex , that is , the three hundred years old gentleman ; for as aevum in the one signifies the whole space of humane life , so seculum in the other is constantly taken for a hundred years . pag. . lin . . greece , all over italy . ] for all the lower part of italy was at that time inhabited by the greeks , and from them called magna graecia , or graecia major , in opposition , i suppose , only to sicily the neighbouring isle , as being alike inhabited by greeks , but of less extent . lin. . voitland . ] a province of germany , in the upper saxony . lin. . having their heads uncovered . ] that as they were bare-footed , so they were bare-headed also , perfect gymnosophists . the latin is nudis pedibus , capita intecta , graecanico pallio & c●cullato , perulàque , and may be rendred indeed , having their heads covered or muffled . but how ? with a pall hooded and a satchell . i , but what had the satchell to do with their heads , that hung at their side , and so they are pictured . but to pass this , reader , thou art at thy own choice , to take which interpretation of the two thou wilt ; for the latin word intectae , as i said , admits of either . chap. xii . pag. . lin . . the women carried it for minerva against neptune . ] there is another account given of this story , that these two gods being in a contest , which of them should be intitled to the presidence of this city athens , they did each of them , to oblige the community in their favour , by a miracle cause to rise out of the ground , the one ( neptune ) an horse , to denote prowess and warlike courage , the other ( minerva ) an olive-tree loaden with fruit , an emblem of peace and fruitfulness ; and that the citizens preferr'd the latter , as the greater merit and more welcome blessing . lin. . juno , salacia , proserpina . ] juno was jove the thunderer's consort , as proserpine was the forc'd mate of grim pluto ; the infernal queen . the third , salacia , lady of the sea , was wife to neptuneas , s. austin hath it out of some of the old roman writers : though among the poets she generally pass by the name of amphitrite . pag. . lin . . amalasincta , artemisia , nicaula , &c. ] these brave ladies or she heroes are famous upon record , and need not any thing further for their commendation , but their name . this artemisia mentioned here , was not the wife of mausolus , a vertuous and magnificent woman too , but another who lived in xerxes's time , a great commandress , in alliance with him . nicaula , it seems , though whence he learn't her name , i cannot tell , for scripture gives it us not ; was she , who is there called the queen of the south , a great admirer of solomon's wisdom . chap. xv. pag. , . the inscriptions , which are left un-englished , are only brought in , to evidence , that there were several roman colonies , beside that at maldon , called colonia victricensis , planted up and down in britain ; to wit , at york , at chester , at glocester , and i doubt not but at colchester too , no less than there was one at cullen in germany , as the very name of them both imports , colonia . and that ours hath an addition of chester to it , is usual to some other cities : colchester for colnchester , which in latin would be colonia gastri , or rather coloniae castrum , the castle or garrison of the colony . chap. xvi . pag. . lin . . now you for your part are gods vicegerent in the kingdom . ] they are the words of pope eleutherius in his letter to lucy , the first christian king , which was in the year of our lord . from whence we may fairly conclude , that in those early dayes , the pope of rome according to his own acknowledgement had no such pretensions as now for several ages since they have made , upon the rights of princes , to the great disturbance of the world , and reproach of christian religion . and indeed this is the more considerable , in that such was the simplicity of devotion in those early converts , and such the deference , which princes who embraced the christian faith , especially from the missionaries of rome , had for that holy see , as appears by this one single instance ; that it had been no hard matter , nor could be judged an unreasonable thing , for them to lay claim to a right , and assert a power , which was so voluntarily offered . further i add , that seeing the donation of constantine , besides that it was alwayes look't upon as a piece of forgery , was at best , supposing it true , but an imperial grant and concession , which would not be of authority enough to bear up the popes supremacy in all other kingdoms of the earth ; and seeing pope boniface , who was the first that with bare face own'd it , his complyance with phocas was so grosly wicked , that none of their own writers but are ashamed to make that transaction betwixt those two , an argument for the papal pretence : seeing , i say , it is so , if the pope be intitled , as their canonists pretend , to an universal dominion by vertue of his office , and by commission from christ and his chief apostle s. peter , how came it to pass , that the bishops of rome all along till boniface , were so modest , as not to challenge any such rights or powers ; nay , upon occasion to declare against such pretences , as antichristian ; which , if that be true , that the pope is by his office , and by a divine commission instated into a supremacy , was in effect no less , than to betray the cause of christ and his church : how came it to pass , that eleutherius should neglect such a seasonable and exemplary opportunity of maintaining and exercising his right , and should rather chuse to return it in a complement back to the king his convert ? vicarivs verò dei estis in regno , sayes he , you are god's vicar in your kingdom : which title now the pope doth with as much arrogance challenge to himself , as here one of his predecessors doth with modesty ascribe to the king. lin. . with the title of spectabilis . ] towards the declension of the roman empire , it was usual so to distinguish great offices with peculiar titles , as spectabilis , clarissimus , &c. so among the italians , magnifico to a senator of venice , illustrissimo to any gentleman , eminenti●●●mo to a cardinal : so with us the term of highness is given to a prince of the blood , excellence to a vice-roy or a lord lieutenant and to a general of an army , grace to an arch-bishop and to a duke , honour to a lord , worship to an esquire , &c. chap. xvii . p. . lin . . fabius quaestor aethe●verd . ] why he calls him fabius quaestor , is at present past my understanding . did he take upon him a roman name ? was he in any such office as quaestor , i. e. treasurer or receiver general , wherein he behaved himself like a fabius ? or did he intitle his book by that name ? i am to seek . chap. xviii . pag. . lin . . whatsoever there was in pandora of good and fair. ] she was a woman made by jupiter's own order , and designed to be the pattern of female perfection : to which end all the gods contributed to the making of her several gifts , one wisdom , another beauty , a third eloquence , a fourth musick , &c. chap. xix . p. . lin . . wapentakes . ] which in some of our northern countreys is the same as we call other-where a hundred , from the s●xon word waepen , i. e. arms , and tac , i. e. touch ; as one should say , a touching or shaking of their arms. for , as we read it in king edward's laws , when any one came to take upon him the government of a wapentake , upon a day appointed all that owed suit and service to that hundred , came to meet their new governour at the usual place of their rendezvouz . he upon his arrival , lighting off his horse , set up his lance an end ( a custom used also among the romans by the prator at the meetings of the centumviri ) and according to custom took fealty of them . the ceremony of which was , that all who were present , touch't the governours lance with their lances , in token of a confirmation : whereupon that whole meeting was called a wapentake , inasmuch as by the mutual touch of one anothers arms , they had entred into a confederacy and agreement to stand by one another . this fashion , they say , the saxons took up from the macedonians their progenitors . others will have it from tac to take , and give this account of it , that the lord of the hundred at his first entrance upon the place was used to take the tenants arms , surrendred and delivered up to him by themselves , in token of subjection by way of homage . sir thomas smith differs from both these ; for he sayes , that at the hundred meeting , there was a muster taken of their weapons or arms ; and that those who could not find sufficient pledges for their good abearing , had their weapons taken away ; so that in his sense a wapentake is properly armilustrium , and so called from taking away their weapons or arms , who were found unfit to be trusted with them . l. . for the ceremony of the gown . ] he alludes to the roman custom , with whom the youth , when they arrived at mans estate , were then allowed to wear togam virilem , to put on a gown , the habit of men ; whereas before that , they were obliged to wear a coat peculiar to the age of childhood , called praetexta : whence papyrius , though yet a child , being admitted into the senate house for his extraordinary secrecy and manly constancy , was called papyrius praetextatus . pag. . lin . . morgangheb . ] or morgingah , from morgin , which in high dutch signifies the morning , and gab , a gift ; to wit , that present , which a man makes to his wife , that morning he marries her . chap. xx. pag. . lin . . tityus his liver . ] a gyant , who for ravishing of latona was adjudged to have his liver after death prey'd upon continually by a vulture , which grew up again as fast as it was wasted . the equity of which punishment lay in this , that the liver is reputed the source and seat of all lusts and unlawful desires , and doth naturally , as some physicians hold , receive the first taint of venereal distempers ( the rewards of impure mixtures ) according to that of solomon , speaking of an adulterer , till a dart strike thorough his liver ; from whence they gather , that that , which we now call the french pox , was not unknow even in that age of the world. l. . prema and mutinus . ] this latter a title given to priapus , much-what such a god , as baal peor was ; the other a goddess forsooth much to the same purpose . for the old romans had gods and goddesses , as the present romans have saints , for every thing , for every action of life . but their offices were such , as the modest reader will easily excuse the want of explaining them . lin. . sayes progne to her sister philomel . ] tereus king of thrace having married progne daughter of pandion king of athens , when he went to fetch her sister philomel , ravished her by the way on ship-board ; which occasioned a bloody revenge in the murder of his son itys . at last they were turned all four into so many several sorts of birds ; progne into a swallow , philomel into a nightingale , tereus into a lapwing , and itys into a pheasant . chap. xxi . pag. . lin . . with head-money called wergild . ] a word compounded of the saxon wert , the price or value or worth of a man , and geld or gild , a payment . that is , he that had killed another , was to buy off his life , by paying the full value of the person slain . the prizes or rates are set down in ethelstan's laws , by thrimsa's , a kind of coyn , or piece of money , of the value of three shillings , saith mr. lambard ; which being reduced to our sterling stand thus . a peasant , l. s. a thane , or one in orders , l. a general , or chieftain , l. a bishop , or alderman , l. an arch bishop , or peer , l. and a king , l. half of which last summ was to go to the kindred , and the other half to the publick . and these rates are set , he sayes , by the common law of the english. the reason of this pecuniary compensation , was their tenderness of life , that two men might not dye upon the account of the same mischance , according to that saying in an ancient law , nulla sit culpa tam gravis , ut vita non concedatur , propter timorem dei. but yet withal in some cases of premeditated or clandestine murder , they were not excused from making satisfaction with their life ; or in case one were not able to pay the were , or fine , he was punished with death . i called this head-money , because in latine it is termed capitis aestimatio , the value or price of a mans head : not in that sense as either chevage or poll-money is so called . chap. xxii . pag. . lin . . in the margin caxton is quoted , a book , it seems , rare ; of which he saith , that book , that goes up and down by this name , mr. warin townsend of lincolns-inn , a gentleman noble by his descent and learning both , very friendly lent me for my use in a very fair manuscript ; which courtesie of his , i cannot but think it a foul shame for me , not to own and acknowledge with all thankfulness . pag. . lin . , . even now in the time of those that are called the good. 't is william of malmesbury , whom he quotes ; etiam nunc tempore bonorum . whether he mean good princes , who would have those laws observed , or honest subjects , who would observe them , or whether there were any sort of men in his time that went by that character of boni , good men , is more than i have to say . there was at one time a sort of religious persons , that went by the name of bon hommes ; but that can have nothing to do in this business . chap. xxiii . pag. . lin . . every native home-born lawful man. ] in the latin it is indigena legalis , in the saxon law-term it is inlaughe or inlaugh , that is , one that is under the law , inlagatus , who is in frank pledge , or belongs to some court leet : as all males from twelve years old and upwards were obliged to be . so bracton tells us . lin. . decenna . ] the same as decuria , which is generally rendred a tithing , i. e. a company of ten men with their families , all of them bound to the king to answer for one anothers good and peaceable behaviour . from the latin word it is called a dozein , and the people that belong to it are called deciners or dozeniers , that is , decennarii . the chief of them is termed decurio or decanus friburgi , the tithingman or headborough . and all males of twelve years age and upwards ( except nobles and religious persons ) were obliged to be of some dozein or other . but now there are no other dozeins but leets , and no other security there given for the kings peace , but the persons own oath . lin. . friborgh . ] from the saxon sreo free , , and borgh , a surety or security : or , as some write it , fridburgh , from frid , peace , and burgh , a surety . if it be taken for the person , it is the same that a deciner ( we now spoke of ; ) if for the action , it is their being sureties for one another : if for the company of these mutual ingagers , 't is the same as decuria , a tything , in saxon tienmannatale i. e. , the number of ten men . the normans retained the same custom , but altered the name , calling it frankpledg , from the french , frank , i. e. free , and pledg , i. e. surety . and the compass or circuit of this frankpledg the same as that of friburg , to wit , the decenna or dozein , i. e. ten housholds . lin. . manupastus . ] of this bracton sets down a rule for law , that every person , whether free-man or servant , either is or ought to be in frank-pledge or of some bodies mainpast . now he is of ones mainpast , saith he , who is allowed victuals and clothes , or victuals only and wages . and this was the reason , why great men were not obliged to be of any ordinary dozein , because bishops , earls and barons , as the same bracton informs us , ought to have their menial servants in their own friborgh , and to answer to the king for their behaviour , and to pay what forseits they should make , if they had not the persons themselves forth-coming . and this , sayes he , is the case of all those who are of any ones mainpast . chap. xxiv . p. . lin . . john scot erigena . ] a school-man famous for his subtilty , called in latin , johannes duns scotus . whether duns were the name of his family , as it might be , johannes de dunis , which in english would be john downs ; or whether it were a nickname given him for his slovenliness and seeming blockishness , from the word dunce , which in barbarous latin is dunsa , ( for so in camden's remains we find the emperour charles , as i take it , putting that question to him , as he sate at table over against him , quid interest inter scotum & sotum , what difference between a scot and a sot ? to which he as freely replyed , mensa , the table , sir ) i shall not determine . but scotus or scot , is the name of his countrey , he being a scotch-man , and for that reason called also erigena , that is , irish born , to wit , a highlander ; for those people were originally irish , and came out of that island over into the north parts of scotland . now ireland is by several authors greek and latin called ierna , and by the inhabitants themselves erin . l. . the goddess anna perenna . ] the lady president of the year , anna ab anno ; to whom they addrest their devotions , that she would per●nnare , that is , preserve and continue health and plenty and prosperity from year to year ; for which reason she was called anna perenna . now our author here brings in long-lived nestor and this goddess , to shew that those good fellows in quaffing of healths , do wish muchos annos , as the spaniard saith , many and many a years life to their absent friends , while in the mean time by tossing off so many bowsing canns , they shorten their own lives . pag. . lin . . englescyre . ] or englecerie , that is , the being an english-man . for there was a law made by king knute in favour of his danes ( and so afterward it was interpreted in behalf of the francigenae , french-men , or whatever foreigners ) that if any such were privily murdered or slain , the village , where the fact was done , should be amerced in a lusty fine to the king , unless they could prove englecerie , that is , that the murdered person was an english-man , one born of english parents , in which case there was no fine levied . so that the danes and french , when they governed here , provided they might secure themselves from the english , were well enough content to let them destroy one another . chap. xxv . pag. . lin . . an olympiad . ] an account of time used by the greeks , consisting of four years , so called from the olympick games , which were celebrated in honour of jupiter olympius every fifth year . this reckoning began first in the year of the world three thousand one hundred seventy four . in the second book . chap. i. pag. . l. . by right of fréehold . ] allodii jure , that is , by a mans own right , without acknowledgment of service or fealty , or payment of rent to any other as a superiour lord. in which respect it is opposed to an estate in fée , wherein though a man hath a perpetual right to him and to his heirs for ever , yet seeing he owes a duty and service for it , it cannot be said properly and simply to be his own . and such are all mens estates here in england , but the kings in the right of his crown , who cannot be supposed to hold of another , or to owe fealty to any superiour , but to god only . lin. . vnder military service . ] or knights service , that is , to find the king such a number of men and arms in time of war , as it is here expressed . see cowell in the word chivalry . indeed the clergy before the conquerour in the time of the saxons ( as we find it in the five and twentieth chapter of the first book ) were allowed to be free from secular services , but with an exception and reserve however of these things , to wit , expedition , repairing of castles and building of bridges , from which last duty the high-priests among the romans were called pontifices , i. e. bridge-makers . now this bringing of the bishops baronies under knights service , was sure enough design'd to engage them into a close dependence upon the crown , and to take them off from hankering after any forreign power , to which they might pretend to owe any subordination ; as all along the times of popery , out of reverence to the holy see , they were forward enough upon occasion to think themselves obliged to do , even to the high discontent and great disservice of their kings . chap. ii. pag. . lin . . ready money . ] so i render viva pecunia : which though spelman saith it is so called , that it may the more expresly signifie pecudes , i. e. cattle ; yet he doth not to me , i confess , make out by any fair instance that it doth ever so signifie ; and that it cannot be taken in that sense here , is plain from what immediately goes before , quot animalia , imò quantum vivae pecuniae quisque possidebat : where animalia living creatures include pecudes the cattle . chap. iii. pag. . lin . . boseham . ] what earl godwin's trick was , or wherein the conceit lay , i cannot at present well imagine , unless it were in the equivocation or misunderstanding of the word boseham , as it falls in with the word bosom in the pronunciation and sound of it ; thus . supposing the earl at meeting of the arch-bishop , coming up to him upon pretence of saluting him said , give me your boseham , my lord ; to which the arch-bishop thinking belike , he might , by way of desiring his pastoral embrace , mean only his bosom , readily made answer , i give you my bosom ; which the earl with a cunning fetch interpreted a grant of his estate of boseham . pardon , reader , my mistake , if it be one ; since i have no better account , from my own guess , to give , meeting with no help from our law-dictionaries . chap. iv. p. . lin . . the first sheriffs of counties . ] a sheriff or shyrereev signifies the governour of a county , called in latin vice-comes , as deputy to the count or lord or chief man of the county ; though even in the confessor's time he was reckoned the kings officer , and not the counts . this office , as mr. camden tells us , was first set up by king alfred , who also divided england into counties , and those counties again into hundreds and tythings . lin. . other judges without appeal . ] this should seem to be the court of chancery : for which reason the lord chancellor is said to keep the kings conscience , as here these judges are compared to the kings bosom . lin. . acting a busiris his part . ] i. e. treating strangers ill ; he being a cruel tyrant of egypt , who slew strangers , and sacrificed them to his gods : whence the proverb , busiridis arae . pag. . lin . . that he should pay it at the scale . ] that is , should pay it by weight , or according to full weight . chap. vi. pag. . lin . . being lord chief justice of the whole kingdom . ] in the latin it is thus expressed ; totius regni placitator & exactor : where i confess the former title of the two gave me the occasion of my mistake , as if he had been chief justice of the common pleas : whereas i should rather have rendred it thus ; who had been ( to wit , in king rufus his time ) pleader or demander and receiver of the kings duties throughout the whole kingdom . for such an officer this exactor regius was , otherwise called grafio . see spelman upon both those words . lin . in the times of the saxons a hereot . ] this at first was atribute given to the lord for his better preparation towards war ; but afterward though the name were kept , the thing was altered , being taken for the best chattle , that the tenant hath at the hour of his death , due to the lord by custom , be it horse , ox , &c. that hereot and relief do not signifie the same thing , appears by this , that they are both often found to be paid out of one and the same tenure , and again that the heir alway succeeds into the estate upon the payment of the relief , but not alwayes upon the payment of the hereot . lin. . in french is called a relief . ] from the verb relever , to raise again and take up the estate which had faln into the lords hand by the death of the ancestor . it is a summ of money , which the new homager , when he is come to age , payes to the lord for his admission or at his entrance into the estate . whence by the old civilians 't is called introitus , and in greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . this summ was moderately set ; wherein it differed from ransom , which was much more severe . the kings rates upon his homagers were thus : an earls heir was to give an hundred pounds , a barons an hundred marks , a knights an hundred shillings at most ; and those of lesser estate less , according to the ancient custom of their tenures : as spelman quotes it out of the charter of henry the third . pag. . lin . . of the greater uavasors . ] they were a sort of gentlemen next in degree to the barons . they did not hold immediately of the king , but of some duke , marquess or earl. and those that held from them again , were called valvasini , or the lesser vavasors . there is little certainty what their offices or priviledges were , or indeed whence they were so called ; whether qu. ad valvas stantes , or valvae assidentes , for their sitting or standing at their lords door , ( if those of that quality did so ) as some would have it ; or that they kept the doors or entrances of the kingdom against the enemies , as spelman sayes ; or whether from vassalli , as the feudists derive the name , from that inferiour tenure they had mediately from the king by his great lords ; which seems the more likely , because these greater vavasors , who did so hold , are sometimes termed valvasores regii and vassi dominici , that is , the kings vassals . lin. . her dowry and right of marriage . ] in the latin it is dotem suam & maritagium . now dos is otherwise taken in the english , than in the roman laws ; not for that which the man receives with his wife at marriage , a portion : but for that which the woman hath left her by her husband at his death , a dowry . and maritagium is that which is given to a man with his wife , so that 't is the same as dos among the romans , saith spelman . but that is too general , i think , that the man should be obliged to return at his death all to his wife that he had with her , beside leaving her a dowry . i am therefore rather inclined to cowell , who tells us , maritagium signifies land bestowed in marriage ; which , it seems , by this law was to return to the wife , if her husband dyed before her . the word hath another sense also , which doth not belong to this place , being sometime taken for that which wards were to pay to the lord for his leave and consent that they might marry themselves , which if they did against his consent , it was called forfeiture of marriage . lin. . the common duty of money or coinage . ] so i render the word monetagium . for it appears , that in ancient times the kings of england had mints in most of the countreys and cities of this realm . see cowell in the word moniers . for which priviledge , 't is likely , they paid some duty to the chief place of the mint . thus in doomesday we read , as spelman quotes it , that in the city winecestre every monyer paid twenty shillings to london ; and the reason given , pro cuneis monetae accipiendis , for having stamps or coins of money . for from this latin word cuneus ( which our lawyers have turned into cuna , from whence the verb cunaere ) comes our english word coyn. now it is more than probable , that the officers of the chief mint might by their exactions upon the inferiour mints give occasion for the making of this law. lin. . or children or parents . ] by parent here we are to understand not a father or mother , but a cousin , one a-kin ; as the word signifies in french , and as it is used in our laws . and indeed the latin word it self began to have that sense put upon it in vulgar speech , toward the declension of the empire , as lampridius informs us . pag. . lin . . a pawn in the scarcity of his money . ] that is , if he were not able to pay his forfeit in specie , i. e. to lay down the money , he was to give security by a pawn of some of his goods or chattels . see cowell in the word gage . this in latin is called vadium , a pawn or pledge , from vas , vadis , a surety . hence invadiare , to pawn or ingage a thing by way of security , till a debt be paid . lin. . nor shall he made amends . ] from the french amende , in our law-latin emenda : which differs from a fine ( or mulct ) in this that the fine was given to the judge , but amends was to be made to the party aggriev'd . now there were three sorts of this amende , the greater which was like a full forfeiture , the mid-one at reasonable terms , and the least or lowest which was like a gentle amercement . this distinction will help to explain the meaning of this law. l. . per sée de hauberke . ] this in latin is called feudum hauberticum , i. e. loricatum , sayes hotoman , from the french word haubert , that is , a coat of mail , when a vassal holds land of the lord on this condition , that when he is called , he be ready to attend his lord with a coat of mail or compleat armour on . now haubert , as spelman tells us , properly signifies a high lord or baron , from haut or hault , high , and ber ( the same as baro ) a man or baron . and because these great lords were obliged by their place and service to wait upon the king in his wars on horse-back with compleat armour , and particularly with a coat of mail on : hence it came , sayes he , that the coat of mail it self was also called haubert ; though he doth afterward acknowledge that the word is extended to all other vassals , who are under that kind of tenure . but then at last he inclines to think , that the true ancient writing of the word is hauberk ( not haubert ) as it were hautberg , i. e. the chief or principal piece of armour ; and berg he will have to signifie armour , as he makes out in some of its compounds , bainberg armour for the legs and halsberg armour for the neck and breast : and derives it from the saxon beorgan i. e. , to arm , to defend . add to this , saith he , that the french themselves ( and we from them ) call it an haubergeon , as it were haubergium . lin. . from all gelds . ] the saxon word geld or gild signifies a tribute or tax , an amercement , a payment of money , and money it self : whence i doubt not , but the best sort of money was called gold. it is from the verb geldan or gyldan , to pay . in latin it is geldum , and not gilda , as cowell writes it . for this signifies quite another thing , a fraternity or company of merchants or the like . whence a gild-hall , that is the hall of the gild or society : such as was once the stilyard , called gildhalla tentonicorum , the gild-hall for the dutch merchants from the hanse-towns . chap. vii . pag. . lin . . iphis and ianthis and ceneus . ] persons mention'd by ovid , who changed their sex , from female to male. iphis was a maid of creet , who after her metamorphosis when she turn'd to man , took ianthe to wife : and canis ( for that was her maiden name ) was a thessalian girl , whom neptune made a whore of first , and then at her request a man , who thenceforward went by the name of caeneus . lin. . cheats , whom they commonly call coyners . ] in malmesbury's latin , trapezitas , quos vulgò monetarios vocant . which bare citation is all the account , that spelman gives of the word monetarius . it doth properly signifie an officer of the mint , that makes and coyns the kings money ; a monier . but here by the historian's implying that such fellows , as this law was made against , were falsarii , cheats , and by our author 's terming of them adulteratores monetae , counterfeiters of coyn : we must understand them to be false coyners , clippers , washers , imbasers of the kings coyn , and the like . and therefore i render'd trapezitas ( which otherwise is a word of innocent meaning for money-changers , bankers , &c. ) in the historian's sense cheats . chap. viii . pag. . lin . . every hide of land. ] it is so called from the saxon word hyden , to cover ; so that thus it would be the same as tectum in latin , a dwelling-house . and thus i question not , but there are several houses called the hide : for i know one or two my self so called , that is , the capital messuage of the estate . nor is it so consined to this sense , but that it takes in all the lands belonging to the messuage or manour-house , which the old saxons called hidelandes , and upon some such account no doubt hidepark had its name , as a park belonging to some great house . now as to the quantity , how much a hide of land is , it is not well agreed . some reckon it an hundred acres , others thereabouts , by making it contain four yardlands , every yardland consisting of twenty four acres . the general opinion is , that it was as much as could be ploughed with one plow in a year , terra unius aratri culturae sufficiens . and thus it should be muchwhat the same as carrucata terrae , i. e. a plough-land . from bede , who translates it familia , they gather it was so much as could maintain a family . there is mention made of these hides in the laws of king ina , an hundred years before king alfred , who divided the countrey into counties or shires . and taxes and assessments were wont to be made according to these hides ; up as high as king ethelred's time in the year of our lord . since the conquest , william the first had six shillings for every hide in england , rufus four , henry the first here three for the marriage of his daughter . pag. . lin . . this right is called wreck . ] i. e. by which the king claims shipwrack't goods cast on shoar . for though by the law of nature such things , as being nullius in bonis , having no owner , every one that finds them may seem to have a right to them ; yet by the law of nations they are adjudged to the prince as a special priviledge by reason of his dignity . now wreck ( or as the french call it varec ) properly signifies any thing that is cast on shoar , as amber , precious stones , fishes , &c. as well as shipwrack't goods : from the saxon wraet i. e. , any thing that is flung away and left forlorn ; though use hath limited the word to the later sense . chap. ix . pag. . lin . . the roman laws were banisht the realm . ] i suppose there may be some word missing or mistaken in the latin , à regno jussae sunt leges romanae : but that which follows , the forbidding of the books , obliged me to that interpretation : for why should the books of those laws be prohibited , if the laws themselves were ( as the latin reading seems to import ) ordered and ratified by the realm . wherefore i suppose some mistake , or omission , and for à regno jussae , read à regno pulsae or exulare jussae , &c. unless you would like to have it thus rendred , commanded out of the kingdom : which i confess would be a very odd unusual construction . chap. x. pag. . lin . . three hundred marks of gold. ] a mark weigh'd eight ounces , and as cowell states it out of stow , it came to the value of l. s. d. at this rate three hundred marks of gold come to five thousand pound ; and to every bishop five marks , supposing only ten bishops , come to l. s. d. which is a very unlikely summ in this business . 't is true , the value of it , as of other coyns and summs , might vary . and so we find in spelman , that an uncertain author reckons a mark of gold to be worth fifty marks of silver . but then 't is as uncertain , what marks of silver he means . for if they be such as ours are ( and as they were in king john's time ) at s. d. then a mark of gold will be of the value of l. s. d. which is just double to the former value of l. s. d. ( which being resolved into marks of silver , makes but . ) but in ancient times a mark of silver was only s. d. so that fifty of them will make but l. s. another instance we meet with , where one mark of gold is accounted equivalent to ten marks of silver ; which taking a mark for s. d. comes to l. s. d. another , where nine marks of silver pass for one mark of gold , in a payment to the king : which is just six pound . and these three last accounts agree pretty well together . taking the middlemost of the three , viz. a mark of gold at ten marks of silver ; thus the above named summ of three hundred marks of gold , that is , three thousand marks of silver amounts to two thousand pound ; and the five marks to every bishop ( supposing but ten bishops ) come to l. s. d. but if we take these marks of silver at s. d. the account will grow much less . for ten such marks are but l. s. so that the three hundred marks of gold at this rate will come but to l. sterling . but that these marks of the ancient and lower estimate are not here intended , may probably enough be gathered from one passage more we find there , centum solidi dentur vel marca auri , where , if solidi stand for shillings ( for they may be taken for soulx as the french call them ) a mark of gold is made of equal value with l. sterling . and thus three hundred marks of gold come to fifteen hundred pound . i confess after all , most of these accounts of the mark , gold or silver , may be admitted of , as having possibly at sometime or other been true ; since mony , both in its coyns and summs , hath in several ages of the world , risen , and fallen according to its plenty or scarcity . lin. . being arighted and accused of any matter . ] or rather in the law-spelling arrested ; in latin rectatus , that is , ad rectum vocatus , convened before a magistrate and charged with a crime . thus ad rectum habere , is in bracton , to have a man forth coming , so as he may be charged and put upon his tryal . it may be also rendred , taken upon suspicion . it is written sometime retatus and irretitus . pag. . lin . . to give suretiship for the remainder . ] i confess i do not well know how to apply to this place that sense , which our common law takes the word remainder in , for a power or hope to enjoy lands , tenements or rents after anothers estate or term expired ; when an estate doth not revert to the lord or granter of it , but remains to be enjoyed by some third person . what if we say , that as bishops could not ( because their estates are of alms ) grant any part of their demeans ad remanentiam , for ever or to perpetuity , so here excommunicate persons were not obliged dare vadium ad remanentiam , to find sureties for continuance or for perpetuity , that is , for their future good behaviour , but only to stand to the judgement of the church in that particular case for which they were at present sentenced . chap. xi . pag. . lin . . if a claim or suit shall arise . ] in the latin , si calumnia emerserit , a known and frequent word in our law , which signifies a claim or challenge , otherwise termed clameum . lin. . till it shall by plea be deraigned . ] or dereyned : which is in french dereyné , in the latin , disrationatum , which as it hath several significations in law , so here it imports , after a full debate and fair hearing , the determination of the matter by the judgement of the court. chap. xii . pag. . lin . . by the name of yumen . ] the same say some , as the danes call yong men . others derive the word from the saxon geman , or the old dutch gemen , that is , common , and so it signifies a commoner . sir tho. smith calls him yoman , whom our laws term legalem hominem , a free-man born ( so camden renders it by ingenuus ) who is able to spend of his own free land in yearly revenue to the summ of forty shillings , such as we now , i suppose , call free-holders , who have a voice at the election of parliament-men . but here the word is taken in a larger sense , so as to include servile tenure also or villenage . chap. xiii . pag. . lin . . leude - men . ] from the saxon leod , the common people . it signified in law a subject , a liege man , a vassal , a tenant : hence in high-dutch a servant was called leute , in old english a lout . but in common acception lewd was formerly taken for a lay-man , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , one of the people , or for any illiterate person . now it is used to denote one who is wicked or loose and debauched . chap. xiv . pag. . lin . . the states of the kingdom , the baronage . ] he means the whole parliament , and not only the house of lords by the word baronage . for though by barons , now we properly understand the peers of the realm ; yet anciently all lords of manours , those who kept court-baron , were styled barons : nay spelman tells us , that all free-holders went by that name before the free-holds were quit letted out into such small pittances , as now they are , while noble-men kept their lands in their own hands , and managed them by their vassals . cowell gives this further account of those lords of manours , that he had heard by men very learned in our antiquities , that near after the conquest all such came to parliament , and sate as nobles in the upper house . but , as he goes on , when by experience it appeared , that the parliament was too much pestered with such multitudes , it grew to a custom , that none should come but such as the king , for their extraordinary wisdom or quality , thought good to call by writ , which writ ran hâc vice tantùm , that is , only for this turn . so that then it depended wholly upon the kings pleasure . and then he proceeds to shew , how after that they came to be made barons by letters patents , and the honour to descend to their posterity . lin. . by way of safe pledge . ] that is , to oblige them to give security for the parties appearance against the day assigned ; who in case of default were to undergo the dammage and peril of it . pag. . lin . . st. peter's pence . ] these peter-pence were also called in saxon , romescot and romefeoh ( that is , a tribute or fee due to rome ) and rome-penny and hearth-penny . it was paid yearly by every family ( a penny a house ) at the feast of s. peter ad vincula on the first day of august . it was granted first , sayes our author out of malmesbury , by ina or inas king of the west-saxons , when he went on pilgrimage to rome , in the year of our lord . but there is a more clear account given by spelman ( in the word romascot ) that it was done by offa king of the mercians , out of an author that wrote his life . and it is this , that offa after thirty six years reign having vowed to build a stately monastery to the memory of st. alban the british protomartyr , he went on pilgrimage to rome , adrian the first then pope , to beg indulgences and more than ordinary priviledges for the intended work . he was kindly received , and got what he came for ; and the next day going to see an english school , that had been set up at rome , he for the maintenance of the poor english in that school , gave a penny for every house , to be paid every year throughout his dominion , ( which was no less than three and twenty shires at that time ) only the lands of s. alban excepted . and this to be paid at the feast of s. peter , because he found the body of the martyr on that day , for which reason it was also called s. peter's penny. and although at last these peter-pence were claim'd by the pope as his own due and an apostolical right , yet we find , that beside the maintenance of a school here mentioned , for which they were first given , they have by other kings been appropriated to other uses . thus we read that athelwolf father to king alured , who was the first monarch of this isle , granted three hundred marks ( the summ total of the peter-pence here , bating only an odd noble ) to be paid yearly at rome . one hundred for the honour of s. peter , to find lights for his church : another hundred for the honour of s. paul on the like occasion : and the third hundred for the pope's use to enlarge his alms. this was done in the year . when leo the fourth was pope . lin. . thirty pence of live money . ] possibly the worth or value of thirty pence in goods and chattels . king offa , in his grant thus words it , quibus sors tantum contulit extra domos in pascuis , ut triginta argenteorum pretium excederet ; who had an estate besides houses in lands , which might exceed the value of thirty silver pence . lin. . out of a rescript of pope gregory . ] we have the whole letter set down in spelman , which speaks in english thus , gregory the bishop , servant of the servants of god , to his worshipful brethren the arch-bishops of canterbury and york , and to their suffragans , and to his beloved sons the abbots , priors , arch-deacons and their officials , appointed throughout the kingdom of england , unto whom these letters shall come , greeting and apostolical benediction . in what manner the pence of s. peter , which are due or owing to our chamber , are to be gathered in england , and in what bishopricks and dioceses they are owing , that there may arise no doubt on this occasion , we have caused it to be set down in this present writing , according as it is contained in the register of the apostolick see. out of the diocess of canterbury seven pounds and eighteen shillings sterling : out of the diocess of london sixteen pounds , ten shillings . and so of the rest . yeoven at the old city , april . in the second year of our popedom . there is some difference though in the account of the dioceses . for after lincoln he leaves out coventry and puts chichester for chester , l. and then after bath he puts in salisbury and coventry ( with a mistake l. s. for s. ) and leaves york last . besides every body knows there are more dioceses now than were then . this was gregory the fifth that wrote this , and it was ( our author tells us ) in the time of king edward the second . but edward the third in the year of the lord . and of his reign . forbad these peter-pence to be paid any more at rome , or to be gathered any longer in england . chap. xv. pag. . lin . . into six provinces or circuits . ] as they are for number still , with two judges a piece , though at first three . how these differ from what they now are , as to the counties , the reader may easily satisfie himself . here are thirty seven of them , as we now reckon : only with this difference , that monmouth and rutland are left out , and richmond and copland are put in . pag. . lin . . and if he perish , i. e. sink , let him lose one foot . ] for that in this tryal by water , was the sign and proof of guilt , if the party thrown in did not swim , which is quite contrary in the tryal of witches : as you will find in the next chapter , which treats of ordeals . lin. . the kings great assise . ] assise is a word , that hath many significations in our law. it is here in the title taken for a statute ; the assises ( i. e. the statutes and ordinances ) of king henry made at clarendon . but in this place it is used for a jury ; and it is either the great or grand assise , which serv'd for the right of property , and was to consist of twelve knights ; or the petty assise , which served for the right of possession only , and was made up of twelve lawful men . chap. xvi . pag. . lin . . the superstitions and fopperies . ] these you have also in sir h. spelman , with an incipit missa judicii , which shews that the church of rome did once approve of these customs , which since she hath condemned , notwithstanding her pretence of being infallible . i would to god , she would deal as ingenuously in throwing off those other errors and corruptions , we do so justly charge her with . chap. xvii . pag. . lin . . hogenhine . ] or agen-hyne , that is , ones own servant . it is written also home-hyne , that is , a servant of the house . lin. . holding in frank pledge . ] the latin is francus tenens . wherefore amend the mistake , and read holding in frank fee. for frank pledg is a thing of another nature , as belonging to a mans behaviour and not to his tenure . now frank fee is that which is free from all service , when a man holds an estate at the common law to himself and his heirs , and not by such service as is required in ancient demesne . pag. . lin . . the falcidian law. ] so named from one falcidius , who being tribune of the people in augustus his time , was the maker of this law. lin. . twenty pounds worth of land in yearly revenue . ] so i render . libratae terrae . for although cowell in proportion to quadrantata , or fardingdeal of land , which he saith is the fourth part of an acre , seems at first to gather that obolata then must be half an acre , denariata a whole acre , and by consequence solidata twelve acres , and librata twenty times twelve , that is , two hundred and forty acres : yet this was but a conceit of his own . for by having found the word used with reference to rent as well as land , thus . libratas terrae vel reditûs , he is forced to acknowledge , that it must signifie so much land as may yield twenty shillings per annum . to which opinion spelman also gives his assent . but what quantity of land this librata terrae is , cannot so easily be determined . cowell out of skene tells us , it contains four oxgangs , and every oxgang thirteen acres : if so , then it is fifty two acres , and twenty of them , which make a knights fee , come to one thousand and forty acres , which somewhat exceeds the account here set down of six hundred and eighty out of the red book of the exchequer . but there is a great deal of more difference still , as the account of the knights fée is given by others . in one manuscript we read , that a yardland contains twenty four acres , four yard-lands make one hide , ( that is , ninety six acres ) , and five hides make a knights fee , ( that is , four hundred and eighty acres ) the relief whereof is a hundred shillings . another manuscript hath it thus , ten acres according to ancient custom make one fardel , and four fardels ( that is , forty acres ) make a yardland , and four yardlands ( that is , one hundred and sixty acres ) make one hide , and four hides ( that is , six hundred and forty acres ) make one knights fee. a third reckons it otherwise , that sixteen yard-lands make a whole knights fee ; which if we make a yard-land to be twenty four acres ( according to the first account ) comes to three hundred eighty four acres ; but if ( according to the second ) we take it for forty acres , it amounts to six hundred and forty acres . and , saith he , when they are taxed at six shillings four pence ( that is , every of the sixteen yard-lands , which make up the fee , at so much ) they make the summ of one hundred shillings ( or five pound , which was the ancient relief of a knights fee. ) but this is a mistake either of the author or the citation ; it is six shillings three pence , which makes that just summ ; from whence we learn also what proportion was observed by the lord in setting and demanding of the relief upon the next heir after his ancestor's decease . further in the kings writ , as glanvil cites it , it is said , that twelve plough-lands make one knights fee : which , allowing to a plough-land one hundred & twenty acres , amounts to one thousand four hundred and forty acres . in the main , as to the value of a knights fee , 't is enough what cowell tells us , that it was so much inheritance , as was sufficient yearly to maintain a knight with convenient revenue , which in henry the thirds dayes , camden sayes , was fifteen pounds , and sir thomas smith rates at forty . but to confirm the account , which our author here gives us , we find in the statute for knights in the first of edward the second , that such as had twenty pounds in fee , or for term of life per annum , might be compelled to be knights . and as to the various measure of land ( of which we have had a remarkable instance in this business before us ) spelman hath given us good reasons for it ; since where the land was good , they might probably reckon the fewer acres to a yard-land , a hide , a knights fee , &c. and where it was barren , they might allow the more . beside , that some lords , who lett these fees , might be more bountiful and profuse , others more parsimonious and severe to their dependents ; and that the services which were imposed upon these fees , might in some mannors according to custom be lighter , in others upon agreement and covenant more heavy . all which might strangely diversifie the account , as to the quantity or measure of those lands , which were to make up a knights fee. chap. xviii . pag. . lin . . a little habergeon or coat of mail. ] in latin halbergellum , a diminutive from the saxon halsberg , armour for the neck and breast . it is written also haubergellum and hambergellum . they mistake themselves , who translate it a halbert , in french halebarde , anoffensive weapon , for a coat of mail , which is armour of defence , in french haubert or hauberk ; whence fée de hauberk , which we have already explained somewhere before . lin. . a capelet of iron . ] a little iron or steel cap instead of a head-piece or helmet , which the better sort wore . for by comparing this with the two fore-going sections , we find they were to have a difference of arms according to their different quality and estate . lin. . a wambais . wambasium ] or wambasia , so called , i suppose , because it reached over the belly or womb , was a jacket or coat of defence , used in stead of the coat of mail , perhaps like unto our buff-coats , though probably not of leather only , but of any other material , as the wearer should think fit . pag. . lin . . timber for the building of ships . ] in latin here , mairemia ; written also meremia and meremium and maremium and muremium , from the french meresme , timber to build with . lin. . stercutius . ] saturn so called , as being the first inventer of dunging land. lin. . vnder the title of free-men . ] here the author himself hath in the latin added a marginal note , which i thought fit to remove to this place . he saith , that among the ancient germans the alway free , the middlemost free , and the lowermost free were , as it were , the classes and several ranks of the lesser nobles , i. e. of their gentry . for the title of nobless ( as also in our vulgar language ) was given only to princes and great men. and for this he quotes munster , cosmog . lib. . chap. xix . pag. . l. . in the borders of the carnutes . ] a people of france , whose countrey is called chartrain , and their chief city chartres , about eighteen leagues from paris eastward . that town eight miles off , called dreux ( in latin drocum ) was so named from the druids , who dwelt there at first , and likely enough afterward often resorted thither . p. . l. . of the three estates , the king , the lords , and the commons . ] there are indeed three orders or estates acknowledged by true divines and sound lawyers in the english government ; to wit , the lords spiritual , the lords temporal , and the commons of england . but the fundamental mistake of our learned author is , that he hath joyned those two sorts of lords ( whose very character shews them to be of a distinct species , though as to the publick welfare and the kings service they ought to be of one and the same interest ) into one estate , and to make up the third estate , thought himself obliged to bring in the king himself for one , who is lord paramount over all the three ; and by this means ipsam majestatem in ordinem redigere . i call this a fundamental mistake , as a most probable ground of rebellion ( as it was in the barons wars , and in our late civil broils ) inasmuch as if the king make one of the three estates , as they fancy he doth , and hath ( as they do from thence conclude he hath no more ) but a co-ordinate power with both or either of the other two estates ; that then it is lawful for both or either of those estates , in case of publick grievances to quarrel the king ( their co-ordinate ) if he will not give way to their redress ; that is , if he will not consent to do what they would have him to do ; and upon his refusal of so doing , to raise war against him , to sequester and murder his loyal adherents , to destroy his royal person ; and finally , if he escape the hazards of battel , when they get him into their hands , to bring him to account for a pretended male administration , and the violation of a trust , which god and not the people put into his hands ; and having gone so far , that they may , if possible , secure themselves , to put the monarch to death , and to extirpate monarchy it self . this was the ground and method of our late republican policy and practice . wherein yet they did not foresee what examples they set against themselves , supposing this doctrine of the three estates in their sense to be true , and that king , lords and commons had an equality of trust and parity of power , that the same outrage , which the rump-commoners acted against the king , to the destroying of him , and against the lords , to the outing of them , and voting them useless and dangerous ( as to their share of government ) might one time or other be more plausibly promoted , and more effectually put in execution by one or both of the other two estates , with the help and assistance of great numbers of the commoners ( as there ever will be in such national divisions ) against themselves and all men whatever of such pernicious and destructive principles . no. this false doctrine , i hope , will never obtain among us ; and our english government is so well constituted , that our lords spiritual and temporal and our worthy commoners , will find it the interest of themselves and their posterities , that they will ever have that duty and deference to our soveraign , as may secure him and us , and discourage the designs , and defeat the attempts of all such as wish ill to his honour and safety , or to the publick peace . besides , is it rational to imagine , that the king , whose absolute right by law it is , to convene the estates , when and where he thinks fit , to call and dissolve parliaments , as he pleases : in a word , that he , in whose name all justice is administred , in whose hands the militia is , and by whose authority alone the subjects can take up arms , should stand only in a co-ordination of power with any other persons whatsoever or however assembled or associated within his dominions ? this flaw i could not but take notice of in our great author , and that only with an intention to undeceive the unwary reader , and not to reflect upon his memory , who though he kept along a great while with the long parliament , yet never appeared in action for them , that ever i heard , much less used or owned that virulence and violence , which many others of that ill body of men judged necessary for their proceedings . chap. xx. pag. . lin . . alderman of england . ] the word alderman , in saxon , ealdorman , hath various acceptions , so as to signifie all sorts almost of governours and magistrates . so matth. . . the princes of the gentiles , in the saxon translation are called ealdormen ; and holofernes , i remember , the general of the assyrian army , is in an old english translation called the alderman of the army . so aethelstan ( whose younger son this ailwin was ) being duke or captain general of the east-saxons is in this book of ramsey styled alderman . the most proper importance of the word bears up with the latin senator , i. e. parliament-man ; as the laws of s. edward make out . in like manner , say they , heretofore among the britons , in the times of the romans , in this kingdom of britanny they were called senators , who afterwards in the times of the saxons were called aldermen ; not so much in respect of their age , as by reason of their wisdom and dignity , in that some of them were but young men , yet were skilled in the law , and beside that , were experienced persons . now that alderman of england , as ailwin here was , had to do in affairs of justice , appears by the foresaid book of ramsey , where it is said , that ailwin the alderman and aedric the kings provost sate judges in a certain court. the alderman of the county our author makes to be the same as the earl or lord of the county , and spelman saith , it is hard to distinguish , but at length placeth him in the middle betwixt the count and viscount . he and the bishop kept court together , the one for temporals , the other for spirituals . the title goes lower still , to denote a mayor or bailiff of a corporation , a bailiff of a hundred , &c. lin. . healf-koning . ] it was an oversight or slip of memory in our author , to say , that ailwin was so called ; when the book of ramsey tells us , it was his father aethelstan , who was of that great power and diligence , that all the business of the kingdom went through his hands , and was managed as he pleased , that had that nick name given him therefore . lin. . the graves . ] our author makes them subordinate to the aldermen of counties : but in the laws of the confessor they appear to be muchwhat the same . there we read , and as they are now called greves , who are put in places of rule over others , so they were anciently among the english called ealdermen . indeed , the word greve or reev ( for it is all one ) is of as various use , as that other of alderman is . in saxon it is gerefa , from gerefen and reafen , to take or carry away , to exact or gather . whence this officer ( graphio or gravius from the saxon ) is in other latin called exactor regius ; and by reason that the sheriff gathered the kings fines and other duties , and returned them to the exchequer , he was called the shire-greve or shire-reev , that is , the gatherer of the county . but the truth is , that greve or reev came at last in general to signifie any ruler or governour set over any place almost whatever ; as the same word grave doth among the dutch. so a shire-greve , or bihgerefa , the high sheriff of a county ; a port-greve , the governour of a city or port. so the lord mayor of london was called formerly . tun-greve , the bailiff of a town or mannor . sometime greve is taken for a count or earl , as alderman is . chap. xxi . pag. . lin . . for toll and gabell . ] in the latin pro theolonio & gablo . now telonium , from the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , properly signifies the place where the officers of the customs receive the kings duties ; but is used also for a duty paid for the maintenance of bridges and river-banks . so hotoman . but in our law it is taken for the toll of a market or fair. and gablum or gabellum , a gabell , from the saxon gafol or gafel , signifies any impost upon goods ; as that in france , upon salt , &c. also tribute , custom , any kind of tax or payment , &c. lin. . through the streets of coventry . ] there is a famous tradition among the people of that town concerning this matter , that the lady being to ride naked , only covered all over with her hair , had given order for the more decent performance of her procession , that all the inhabitants should that day keep their shops and doors and windows shut . but that two men tempted by their curiosity to do what fools are wont to do , had some such penalty , i know not what it was , inflicted upon them , as actaon had for the like offence . and they now stand in some publick place cut out of wood or stone , to be shewn to any stranger that comes thither , like the sign of the two logger-heads , with the same motto belike , nous sommes trois . pag. . lin . . brought in my court a certain toper . ] in the latin , attulit in curiâ meâ quandam toper . i know what the adverb toper signifies among the ancient latines ; but what the word means here , i confess , i am in the dark . it doth certainly stand for some thing ( i was thinking a taper ) which he brought with him into court , and sware upon it , as he should have done upon the holy gospels . i cannot imagine , that by quandam toper , shold be intended some woman or girl , whose name was toper , whom he brought along with him , and in defiance to the court , laying his hand upon her , took his oath as formally , as if he had done it upon the holy evangelists . reader , one thing i forgot to acquaint thee with in the preface , that , whereas the author himself had divided each book into several sections , which were very unequal and incommodious , i thought it much more convenient for thy ease and profit , to distribute them into chapters ; together with the argument or contents of each chapter at the beginning ; and withal , that no one may complain , that i have injured the author , by altering his method , i have left his sections also marked with a numeral note , , , &c. on the side of the inner or outer margin . finis . errata . in the translator ' s preface , p. . l. . r. ( and hath that of crabbed in it beside ) and as to the method is so intricate . pag. . l. . r. and strifes : p. . l. . r. pieces : p. . l. . r. borderers : p. . l. . for facts , r. toils : p. . l. . r. and money : p. . l. , r. lazzes : p. . l. . r. and breeding : p. . l. . r. peccatum : l. . r. or his eyes : p. . l. . r. quid : p. . l. . r. sorry old verse : p. . l. . r. too truly : p. . l. . r. warden : p. . l. . r. vulgar : l. . r. bestowing her : p. . l. . r. misdemeanour : p. . l. . r. add : p. . l. . r. seasonably : p. . l. . r. glocester . whom : p. . l. . r. strict : p. . l. . r. that in the : p. . l. . r. what. of him : p. . l. . r. him : p. . l. . r. cattle : p. . l. . r. turned : p. . l. . r. retired : p. . l. . r. neptune , as : p. . l. . r. unknown : p. . l. . r. inlagh : p. . l. . r. three things : p. . l. . r. found : p. . l. . r. arretted : p. . l. . r. quilleted . finis . notes, typically marginal, from the original text notes for div a -e senec. controv . ●ucret . l. . enn. annal. l. . plutar. de audiend● . plutar. lib. orac . pyth. 〈…〉 philip. honor . thes. politic . lat. & ital. machiavell in principe & comment . ad ●iv . l. . c. . & . cujacius . alber. gentil . l. . c. . de jure bell . h. cardan . in prolem . l. . judic . astron . text . . stat. . silv. claudian . in laud. serenae u●or . stili● . l. . sect. . omnia . c. de vet . jur . enuel . virg. aen. . lucret. l. . de re● . nat . virg. l. . aeneld . aristoph . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . hegesand . delphus ap . athen. dipnos . horat. carm. . od. . plin. epist. ad nat. hist. senec. praf . ad controver . ovid. fast. . notes for div a -e p●ol . . geogr. & . quadrip . & pausan. l. . jornand . de th . goth. c. . steph. ad la●rt . aug. de civ . dei , l. . c. . laert. lib. . soph. in oedip . in colon. plut. in lib. de exilio . nat. com●s , myt●ol . l. . c. . plut. de iside & osiride . odyss . . exod. . psal. . paral. ● . munst. ad gen. c. . plut. de serâ dei vindicta . camden . senec. epist. . gen. . bodin . l. . damonoman . 〈◊〉 . l. . 〈◊〉 gall. imp. serv. ad . aeneid . norden in brit. s●e . ul . senec. nat. quast . l. c. athen. dip . nos . l. . jos. scal. in elench . o●at . chron. d. par. trithem . lib. de s●cundis . ovid. . fast. heuter . de vet. belgio . l. . c. . ovid. metam . . herodot . in euterpe . stat. hen. . c. . justin hist. l. . arist. . et● . ff . de orig. jur . l. . meram . . & lucr. l. . cum poetarumturb● . august . de civ . dei. l. . c. . hom. iliad . . senec. ep . . plut. de isid. & osirid . joseph . adv . app. l. a. plut. in lib. de homero . plut. lib. de musica . plato in minoc . sol. polyhist . cap. . 〈◊〉 in vit . p●●phyr . plin. nat . hist. l. . c. . gorop . in gal. paul. merula , in cosmogr . part . . lib. . num . . ezra . . strab. geogr. lib. . caes. de bello gall. l. . vulcan . in app . ad jornand . goth. munst. cosm. l. . cas. bell . gal. l. . hotoman c. . franco gallae . cas. bell . gal. l. . lips. elect. lib. . cap. . & quast . epi. ●●olic . l. . c. . plin. nat . hist. l. . c. . plut. de orac . def . herod . euterp . eustath . ad . iliad . senec. in apocol . plin. l. . c. . br. tuin . apolog antiq . academ . oxon. l. . §. . ● . reuch l. . de . arte cabalist . lips. ●to●c . physolog l . dissert . & vide forcatulum l. . de gall. imperio . laert. l. . & plut orat ●●le esu carnium . senec. epist. . clem l. . s●●om . apud p. merulam in cosmogr . part . lib. . camden . bodin . de repub . l. . c. . in praefat . ad l. . relat. lir. lib. . ●●ut . de vir●t● . mul●●● . aug. de ●iv . d. ●i l. . c . athenaus . paul. aemil. hist. franc. l. . ovid. de arte amandi l. . tac. in vlt. agric . & annal. l. . eurip. in mede● . bodin . de repub . l. . c. . pomp. mela , l. . c. . gorop . in francicis . malmesb. gest . reg . l. . c. . connu● ta●● . & l●●s . plato de rep . lib. . arist. polit. l. . c. ult . trismegist . solin . polyhist . cap. . v. plut. quaest . centuriat . rom. . br. tuin . apolog . oxon. l. . § ▪ . v. plut. sympos . l. . c. . laert. l. . plut. symp . l. . c. . georgic . . athen. dip . nos . l. . & . suid. in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 euseb. praepar . evang. l. . apud abrah . o●tel . in theat . mundi . munsler . boëmus , &c. theocr. eidyll . . plau. 〈◊〉 . id. amphitr . id. casinâ . plut. de aud . poct . ovid. de art . am . l. . bald. l. . consil . . alber. gentil de nupt . l. . c. . orid . amor . l . clep . . id. l. . cleg . . ld . de remed . amor . l. . virg. in ceiri . malmesb. de● gest . reg . l. . c. . dio hist. rom. l. . senec. in octav. act . tac. annal . l. . dio hist. l. . camden . & lips. ad l. . tac. num . . agell . l. . c. . can●len . colonia cas●ri , whence the river called coln . senec. ad alb. c. . lips. de mag . rom. l. . c. . gild. in epist. de excid . brit. noti●ia provine . tacit. vit . agric. juvenal . sat. . pla●●n . in vi● . eleutherii . ovid. fast. l. . jo. fox hist. eccles. l. . zofim . l. . notlt . provinc . utr . imper. l. . comm . c. . & l. . comm . pancit . c. . ja. douz . annal . holland . l. . & . procop. bell . goth. l. . aethelwerd . lib. . fo . . adam brem . hist. eccles . brem . & hamburg . c. . ex bibliothecâ henr. ranzovii . nithard . l. . munst. cos●og . l. . plut. in sympos . plaut . ●n aulul . act . . martial . l. . epig. . callimach . epig. . plaut . in as●nar . anacreon . carm . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . et tacit. cas. de bell . gall. l. . senec. de benefic . l. . c. . proverb . ● . juvenal . s●● . canut . leg . can . . theognis . odyss . . & . in allegoriis ●omeric . martial . l. . epig. . bracton . de coronâ l. . c. . an. ed. . fol. . à briton . cap. . ovid. metamor . l. . matth. parls in h. . pag. . vid. l. . art . . alured . leg . can . . dion . halic . lib. . flor. hist. rom. l. . c. . lamprld . v. bodin . de rep . l. . c. . & franc. hotom . disp . ●eud . cap. . bed. hist. eccles . l. . c. . fest. verbo pecul . & verbo ovibus . v. inae leg . cap. . malmsb. de gest . pontif. l. . ranulph . higden in polychron . joan. car●otensis de nugis curial . l. . c. . caxt. cap. ▪ rotulus wintoniae . hist. cantu●ri●nsis . canu● . leg . . leg. edw. confess . cap. . bract. de coron● , l. . c. . pont. heut . de vet . belg. l. . c. . jul. pollux . l. . c. . . edw. iii. itin. north. tit . coron . . edw. . itin. can● . * perhaps it should be t●●cham . b●act . lib. . de caroni c. . a● . . ed. . alured . rhivallens . ap . tuin . apol. ant . oxon. l. . §. . dionysius . aeneus . malmsb. lib. . de pontif. & de gest . reg. . bract. lib. . decoron . cap. . ingulphus . joh. pris. detc●s . hist. brit. camdenus è sarisburiensi . c. de donat . inter virum & uxorem . l. . in epist. ad l. . relat. anno dom. . ingulph . matth. pari● hist. major . pag. . ingulph . ralph holinshed in hen. . chart. archi●p . cant. see the charter of edw. conf. in english rhyme , camden in essex . ingulph . ingulph . * the saint , to whom the monastery was dedicated . notes for div a -e gerv. tilb. d● sca●c . cap. . camden . guil. lè rouille alencon . claudian . in . cons. honorli . dooms-day . horat. art . poetic . leland . matth. cantu . in antiq. eccles . britan. tuin . apol . an t oxon. lib. . §. . camden i● ord. angl. macrob. saturn . lib. . cap. . vopisc . in aurel. lips. ad . annal. tacit. num . . ingulph . malmsb. lib. . cap. . a. ch. . guil. mapaus . can●len . 〈◊〉 ●eud . . 〈◊〉 . . stat. . ed. . cap. . mi●h . p●ri . polydorus . coverfeu . alberic . gentil . de jure bell . lib. . c. . august . de civ . dei. l. . c. . pausan. atticis . terms . justices of peace . a. m. . in bot. chart . rich. . pro decan . & capit . ec●●s . lincoln . leg. edgar . cap. . petron. arbl● . basil. concil sess . . duaren . de benes . l. . c. . vid. platin. in joh. . vit● . canut . leg . cap. . & ed. confess . bracton . lib. . cap. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in novell . lev. . hotoman . in verbo fe●dal . releu . carol. sigon . de reg . ital. lib. . v. hocom . comm . ad . lib. feud . mariana hist. hispan . lib. . cap. . canut . cap. ● rich. . tit . testament . . lind provin . ●●nstit . de testa●● . c. sta●utum & de ●umum . eccles. c. accidit . verb. abolim . glanvil . l. . c. . c. de testam . l consulta divalia . hotom . feud . haubertic . in diction . morus in utopi● , l. . de mirac . thom. ap . fox hist. eccles . lib. . guli . gemetic . de ducib . norm . lib. . cap. . fest. latro. heb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 latro à 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 latus . bodin . de rep . l. . c. . dist. . c. . ff . ad leg . corn. de sicar . l. . § ult . bract. lib. . tract . . c. . & stamf. plac . coron . l. . c. . stow , & v. malmesb. l. . de gest . reg . fol. . spec. just. cap. des articles , &c. lamb. itinerat . cant. west . . c. . pat. lid . . ovid. art. am. lib. . v. leg. athelstan . . bellarm. l. . de rom. pontif . c. . polycrat . l. . c. . rot. parl. rich. . camden . a. . metamor . l. . v. rog. hovedeu . fol. . coke prafat . ad lib. . assis. pl . & . ed. . 〈◊〉 . barr. . annal. hiber . . sub henr. . malmsb. l. . de gest . reg . c. . & ingulph . fol. . malmsb. l. . de gest . pont. caes. germ. ad arat. in aquario . pindar . olym. . lips. poliorcet . lib. . dissert . . chauc . in prolog . of the sumners tale . pet. blesens . app . ad ingulph . c. de poenis . l. . sancimus . v. canut . leg . . fox . in hist. eccles. ed. . rescript . dat . . kal. maii ap . veterem urbem , pontificat . . ca●s . comm . l. . ath. dipn. l. . feud . l. . tit . . otho fris. lib. de frederic . . radevic . l. . c. . bract. l. . de esson●is , c. . & ed. . fo . . a. ed. . fol. . . v. ed. . tit . attaint . . ● ed. . tit . challenge . . plo. com . fol. . h. . fol. . bract. tract . de coron . l. . glanv . l. . c. . polydor. hist. l. . matth. park . in vit . rob. archiep. cant. malmesh . l. . de gest . pontif . lact. instit. l. . de divin . praem . c. . hoveden . annal . l. . coel. rhod. antiq . sect . l. . c. . sophocles in antigone . arist. . de coelo . iliad . . deut. . zanch. de nat . dei , l. . c. . reuchl . de verb. m●rif . l. . c. . psalm . hebr. . . aeneld . . anthol . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . epigr. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . polyhist . l. . c. . ovid. fast. . senec. ep. . mart. del rio disq mag . l. . sect . . & . ovid. fast. . pic. mirandula in heptaplo . pindar . olymp. . vit● roberti . decret . tit . de vulgar . purgat . ●●us . . qu●st . . bract. l. . tract . . c. . & canuti leges . matth. paris . v. britton . cap. d' appe●les , and temp . ed. . 〈◊〉 . quod permittat . . temp. ed. . tit . attorney , . polyd. hist. angl. . tuin . com. de . reb . albion . dav. pouel . in epist. guli . flèetwode . cas. l. . de bell . gall. paul. merula . in●ulph . camden . polyd. hist. angl. l. . mod. ten . parl. jo. caius antiq . cantabrig . l. . v. ● . ed. . fol. . august . de clv. dei , l. a. c. ● . ethelw●●d . l. . c. . hist. eliens . camd. in northampt. v. kel . relat . hen. . fol. . stat. rich. . c. matth. paris , pag. . brook tit . prerogative . . fr. thin . in contin . chr. eliz. matth. cant. in odonis severi vita . camden . huntingd. hist. l. . camden . leg. edw. . & canut . . leg. edgat . cap. . synod . antioch . c. . dist . c. . malmesb. de gest . reg . l. . ad leg . . de origin . jur . roger de hoveden in h. . notes for div a -e lucan . les termes de la ley; or, certain difficult and obscure words and terms of the common laws and statutes of this realm now in use, expounded and explained now corrected and enlarged. with very great additions throughout the whole book, never printed in any other impression. expositiones terminorum legum anglorum. english and french. rastell, john, d. . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing r estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) les termes de la ley; or, certain difficult and obscure words and terms of the common laws and statutes of this realm now in use, expounded and explained now corrected and enlarged. with very great additions throughout the whole book, never printed in any other impression. expositiones terminorum legum anglorum. english and french. rastell, john, d. . [ ], , - , [ ] p. printed by w. rawlins, s. roycroft and m. flesher, assigns of richard and edward atkins esquires. for g. walbanke, s. heyrick, j. place, j. poole, and r. sare, london : . english and french in parallel columns. running title reads: an exposition of the law-terms. text is continuous despite pagination. reproduction of the original in the british library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- dictionaries -- early works to . - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion les termes de la ley ; or , certain difficult and obscure words and terms of the common laws and statutes of this realm now in use , expounded and explained . now corrected and enlarged . with very great additions throughout the whole book , never printed in any other impression . hor. multa renascentur quae jam cecidere , cadentque quae nunc sunt in honore vocabula , si volet usus . london , printed by w. rawlins , s. roycroft and m. flesher , assigns of richard and edward atkins esquires . for g. walbanke , s. heyrick , j. place , j. poole , and r. sare . . to the reader . i need not strive much to prove the necessity of this book , if you consider , that the most accomplished pleader that ever charm'd his author with eloquence and reason , began with it ; much less shall i have difficulty to shew its profitableness to any who looks about and sees how many fair estates are every day gained by the professors of this noble science , to which this little book must open the door and let them in : but least of all need i suspect , that whoever is convinced of these two points , its necessity and profitableness , will fail to peruse and esteem it . though no name of any authour appears to it , yet my lord cook in his preface to his tenth report ascribes it to william rastal , that reverend judge ; who was eminently knowing both in the common and statute law of this land , as appears by the many leraned expositions and excellent cases , which every where occur in it . and we may probably guess it to be written by him originally in french only , having some cause to suspect the translation to be done by a less skilful hand : for though by the many impressions of it , and carelesness of printers , it has suffered much ( as other books of like nature daily do ) yet some objection lay against the translator himself as ( to omit others ) chapter is defined to be locum in quo fiunt communes tractatus collegiatorum , which was englished thus odly , a place wherein common tracts of men collegiate are made . and for errors of the press , they were very numerous and strangely unhappy : as disseised for die seized , common law for canon law , deep for deer , necessary for accessary , tiel for viel , rather , for either , owner for power , &c. in devastaverunt , sans compulsion , was englished by compulsion , in the word gild two whole lines were omitted in the english , and the french imperfect ; so likewise in garranty , and other words . there was also a mistake in geography in the word pape , where rome was said to be miles from hence , full too much . and still as impressions were iterated , errat's increased . besides the very many faults which were thus crept into this book , it was so extreamly misalphabeted , that some words could not be found without much difficulty , i had almost said not at all : for if the reader finds not the word he seeks in its true place , he commonly lays by the book with despair . to remedy these encreasing evils , i was willing to bestow my endeavour : first , by adding above an hundred words with explications in their proper places , and making references to others , where needful . secondly , by correcting the whole work in what i found amiss , and retrenching some antiquated and tautological expressions as they occurred . thirdly , by adding to some old words such late statutes as alter or concern the law established by them . and lastly , by digesting the whole into an exact alphabet , and taking care to prevent errors of the press . that i intended well , i can give you but my word : how i have performed , i make my reader judge . inner temple , t. b. terms of the law expounded . abate . abate seems to come from the french abbatre , is to destroy or defeat utterly , and has several significations . as , to abate a castle or fortlet ( old natura brev . fo . . ) which ( in westem . . cap. . ) is interpreted to beat down . and to abate a writ , is to defeat or overthrow it , by some error or exception . britton cap. . and , he that steps in between the former possessor and his heir , is said to abate in the lands . see abatement . abatement of a writ or plaint . abatement of a writ or plaint is , when an action is brought by writ or plaint , wherein is want of sufficient and good matter , or else the matter alledged is not certainly set down , or if the plaintiff or defendant , or place are misnamed , or if there appear variance between the writ and the specialty or record , or that the writ or the declaration be uncertain , or for death of the plaintiff or defendant , and for divers other like causes ; then upon those defaults the defendant may pray that the writ or plaint may abate , that is to say , that the plaintiffs suit against him may cease for that time , and that he shall begin again his suit , and bring a new writ or plaint , if he be so disposed . but if the defendant in any action plead a matter in bar to annul the action for ever , he shall not come afterwards to plead in abatement of the writ ; but if after it appear in the record , that there is some matter apparent for which the writ ought to be abated ; then the defendant or any person , as a friend to the court , may well plead and shew it in arrest of iudgement . see the titles of writ , misnosmer and variance , in the abridgements , and the book called the digests of writs , in which this matter especially is very well handled . there are also other matters which abate and stay actions and writs , that is to say , variance between the writ and the count. if the plaintiff be an alien enemy . for want of naming the defendant of what town , trade , or degree he is where the suit is by writ . that a woman plaintiff is married before , or hanging the suit. that the plaintiff hath another action depending for the same cause . that the writ is dated before the action accrued . for that the defendant ought to be sued in another court of which he is an attorney or officer . for that the land is ancient demesne . for that the matter in suit was done upon the high sea , in which case the admiral hath iurisdiction . these csuses underneath do not abate the writ or action but suspend the prosecution for a time . if the plaintiff in action personal be out-law'd , or convicted of recusancy , or excommunicated . vpon a scire facias against ter ' tenants for debt , plea that there are other lands liable to the same debt , which are not returned , doth stay the proceedings until they be also returned ; abatement in lands . abatement in lands or tenements is , when a man dies seised of lands or tenements , and one that hath no right enters into the same before the heir ; this entry is called an abatement , and he an abator . but if the heir enter first after the death of his ancestor , and the other enter upon the possession of the heir , this last entry is a disseisin to the heir . look in the book of entries fo . c. & . d. & . c. where this word abatement is called in latin intrusio . and i think it better to call it in latin interpositio , ot intratio per interpos ● ionem , make a difference between this word and intrusio after the death of the tenant for life . abbot . abbot was the sovereign head or chief of those houses which when they stood were called abbies ; and this abbot with the monks of the same house , who were called the covent , made a corporation . such a sovereign of any such house shall not be charged by the act of his predecessor , if it be not by common seal , nor for such things which come to the use of his house . also an abbot shall not be charged for the debt of his monk before his entry in religion , though the creditor have an especialty thereof , except it have come to the use of his house : but the executors of the monk shall be charged therewith . look for this in the abridgements , the same title , under which you shall see that some of them were elective , some presentative ; and how they were made governours , and their authority . and in this title are also comprehended all other corporations spiritual , as prior and his covent , friers and canons , dean and chapter . abettors . abettors are in divers cases diversly taken . one kind of abettors are they that maliciously , without just cause or desert , do procure others to sue false appeals of murther , or felony against men , to the intent to trouble and grieve them , and to bring them to infamy and slander . abettors in murthers are those that command or procure counsel , or comfort others to murther . and in some case abettors shall be taken as principals , and in some case but as accessories : so in other felonies . and their presence at the deed doing , and their absence makes a difference in the case : there are abettors also in treason , but they are as principals , for in treason there are no accessories . see more in the book called pleas of the crown , made by the reverend judge sir w. stamford , in the titles of accessories , and dammages in appeal . abeyance . abeyance is , when a lease is made for term of life , the remainder to the right heirs of j. s. who is living at the time of the grant : now by this grant the remainder passes from the grantor presently , yet it vests not presently , nor takes hold in the grantee , that is , the right heir of j. s. but is said to be in abeyance , or , as the logicians term it , in posle , or in understanding , and , as we say , in the clouds , that is , in the consideration of the law , that if j. s. die , having a right heir , and living the lessee for life , then this is a good remainder , and now vests and comes to the right heir , in such sort as , that he may grant , forfeit , or otherwise dispose the same , and ceases to be any more in abeyance , for that there is one now of ability to take it , because j. s. is dead , and hath left a right heir in life ; which could not be living j. s. for that during his life none could properly be said to be his heir . also if a man be patron of a church , and presents one to the same , now the fee of the lands and tenements pertaining to the rectory is in the parson : but if the parson die , and the church become void , then is the fee in abeyance , until there be a new parson presented , admitted and inducted ; for the patron hath not the fee , but only the right to present , and the fee is in the incumbent that is presented , and after his death it is in no body , but in abeyance , till there be a new incumbent , as is aforesaid . see litt. lib. cap. . fo . . and perkins fol. . abishersing . abishersing ( and in some copies mishersing ) is , to be quit of amerciaments before whomsoever of transgression proved . abjuration . abjuration is an oath that a man or woman shall take when they have committed felony , and fly to the church , or church-yard , or to any other place priviledged for safeguard or their lives , chusing rather perpetual banishment out of the realm , than to stand to the law , and be tryed for the felony : in which case , before the coroner he shall make such confession which may make a sufficient indictment of felony : then the coroner at the common law shall make him forswear the realm , and assign to him what port he shall go , and shall swear him that he go not out of the high way , and that he abide not at the port ( if he may have good passage ) above one flood and one ebb ; and if he cannot have passage , then he shall go every day during xl . days , in the sea to the knees . but if such a felon as abjures goes out of the high way , and flies to another place , if he be taken , he shall be brought before the iudge , and there shall have iudgment to be hanged . and if he who so prays the privilege will not abjure , then he shall have the priviledge for xl . days , and every man may give him meat and drink . and if any give him sustenance after xl . days , although it be his wife , such giving is felony . also he that doth abjure shall be delivered from one constable to another , and from one franchise to another , till he come to his port : and if the constable will not receive him , he shall be grievously amerced . see the oath in the treatise de abjuratione latronum . this law was instituted by s. edward the confessor , a king of this realm before the conquest , and was grounded upon the law of mercy , and for the love and reverence he and others his successors did bear unto the house of god , or place of prayer and administration of his word and sacraments , which we call the church . note , this law is now changed by the statutes h . cap. . h. . cap. . and h. . cap. . by which it appears , that he at this day shall not abjure the realm , but all his liberty of this realm , and all his liberal and free habitations , resorts , and passages from all places of this realm , to one certain place in this realm thereto limited by h. . cap. . and h. . c. . see more in stamf. li. . c. . and see the statutes jac. c. . and jac. c. . for the repeal of all statutes concerning abjured persons , and the taking away of all sanctuaries . see the statutes of el. chap. . for the abjuration of recusants , and stat. jac. c. . abridgement of a plaint or demand . abridgement of a plaint or demand is , where one brings an assise , writ of dower , writ of ward , or such like : in which cases , for that the writ of assise is , de libero tenemento , as in a writ of dower , the writ is , rationabilem dotem quae contingit de libero tenemento w. her husband , and in a writ of ward the writ is , custo ● terrarum & haeredis , &c. without shewing any certainty in these writs ; bnt in the plaint of the assise , or demand in the writ of dower , and in the count in the writ of ward , the plaintiff or demandant is to shew the certainty of the acres or parcels of land : then if the tenant pleads nontenure , or ioyntenancy , or some other such like plea , to parcel of the land demanded , in abatement of the writ , the plaintiff or demandant may abridge his plaint or demand to that parcel , that is , he may leave out that part , and pray that the tenant may answer the rest , to which he hath not yet pleaded any thing . the cause is , for that in such writs the certainty is not set down , but is generally : and notwithstanding the demandant hath abridged his plaint or demand in part , yet the writ remains good still for the rest . accedas ad curiam . accedas ad curiam is a writ directed to the sheriff , commanding him to go to such a court of some lord , or franchise , where a plaint is sued for taking of beasts as a distress , or any false iudgment is supposed to be made in any suit in such a court , which is not of record ; and that the sheriff shall there make record of the said suit , in presence of the suitors of the same court , and of four other knights of the county , and certiffe it into the kings court , and at the day that is limited in the writ . this writ is made out of chancery , and returnable into the kings bench or common pleas. accedas ad vicecomitem . accedas ad vicecomitem is a writ directed to the coroner , commanding him to deliver a writ to the sheriff , who having a pone delivered him , suppresses it . regist . orig . . . acceptance . acceptance is a taking in good part , and as it were an agreeing unto some act done before , which might have been undone and avoided ( if such acceptance had not been ) by him or them that so accepted : for example , if a bishop , before the statute made eliz. lease part of the possessions of his bishoprick for term of years , reserving rent , and dies , and after another is made bishop , who accepts , that is , takes or receives the rent when it is due and ought to be paid ; now by this acceptance the lease is made perfect and good , which else the new bishop might very well have avoided . the like law is , if a man and his wife seised of land in right of the wife , joyn and make a lease or feoffment by deed , reserving rent , and the husband dies , she accepts or receives the rent ; by this the feoffment or lease is made perfect and good , and shall bar her of bringing a cui in vita . accessories . accessories are of two sorts by the common law , and by the statute law. accessory by the common law is also of two sorts , the one before the offence is done , the other after . accessory before the fact is he that commends or procures another to do felony , and is not there present himself when the other does it ; but if he be present , then he is called principal . accessory after the offence is he that receives , favours , aids , assists , or comforts any man that hath done any murther or felony , whereof he hath knowledge . such an accessory shall be punished , and shall have judgment of life and member , as well as the principal which did the felony : but such an accessory shall never be put to answer that till the principal be attaint or convict , or be outlawed thereupon . in manslaughter a man cannot be accessory before the fact , for manslaughter ought to ensue upon a sudden debate or affray ; for if it be premeditated , it is murther , co. l. . fo . . ● . but a woman in such case shall not be accessory for helping her husband . in great or high treason , as well the commanders as the assisters and receivers are always principals . if a man councels a woman to murther the child in her body , and after the child is born , and then is murthered by the woman in the absence of him that so gave the counsel ; yet he is accessory by his counselling before the birth of the infant , and not countermanding it . dyer fo . . pl. . also one may be accessory to an accessory ; as if one feloniously receive another that is accessory to felony , there the receiver is an accessory . accessory by the statute is such an one as abets , counsels or receives any may who commits , or hath committed any offence made felony by statute : for although the statute doth not make mention of accessories , abettors , &c. yet they are included by the interpretation of the said statutes . stamf. pl. cor . li. . c. , , , . see more of accessory in the said book of plees , lib. . cap. , , & . accompt . accompt is a writ , and it lies where a bailiff or receiver to any lord , or other man , who ought to render accompt , will not give his accompt ; then he to whom the accompt ought to be given shall have this writ . and by the statute of westm . . c. . if the accomptant be found in arrerages , the auditors that are assigned to him have power to award him to prison , there to abide till he have made satisfaction to the party . but if the auditors will not allow reasonable expence and costs , or if they charge him with more receipts than they ought , then his next friend that will sue for him shall sue a writ of ex parte talis out of the chancery directed to the sheriff , to take four mainpernors to bring his body before the barons of the exchequer at a certain day , and to warn the lord to appear there the same day . accord . accord is an agreement between two at the least , to satisfie an offence or trespass that the one hath made to the other , for which he hath agreed to satisfie and content him with some recompence ; which if it be executed and performed , then , because this recompence is a full satisfaction for the offence , it shall be a good bar in law , if the other after the accord performed , should sue again any action for the same trespass . note , that the first is properly called an accord , the other a contract . acquital . acquital is where there is a lord , mesne , and tenant , and the tenant holds of the mesne certain lands or tenements in frank-almoign , frank-marriage , or such like and the mesne holds over also of the lord paramount , or above him . now ought the mesne to acquit or discharge the tenant of all and every manner of service that any other would have and demand of him concerning the same lands or tenements , because the tenant must do his service to the mesne only , and not to divers lords , for one tenement or parcel of land. the same law is where there is lord , mesne , and tenant , as aforesaid , and the mesne grants to the tenant ( upon the tenure made between them ) to acquit and discharge him of all rents , services and such like . this discharge is called acquital . like law is , if the tenant holds of his mesne by like service . as the mesne holds over of the lord , and the tenant doth , or pays his services to the mesne , but the mesne doth not his services to the chief lord , wherefore he distrains the beasts of the tenant . in this case the mesne , for the equalness of the services , ought to acquit the tenant of the service due unto the lord. also there is acquital in law , & acquital in fact . acquital in law is , when two are appealed or indicted of felony , the one as principal , the other as accessory ; the principal being discharged , the accessory by consequence is also acquitted : and in this case , as the accessory is acquitted by the law , so is the principal in fact. stamf. pl. cor . fol. . acquittance . acquittance is a discharge in writting of a sum of money , other duty which ought to be paid or done . as if one be bound to pay money upon obligation , or rent reserved upon a lease , or such like , and the party to whom the money or duty should be paid or done , upon the receipt thereof , or upon other agreement between them had , makes a writing or bill of his hand in discharge thereof , witnessing that he is paid , or otherwise contented , and therefore doth acquit and discharge him of the same . which acquittance is such a discharge and bar in the law , that he cannot demand and recover the sum or duty again , if he produce the acquittance . this word differs from that which in the civil law is called acceptation , because that may be by word without writting , and is nothing but a feigned payment and discharge . though no payment be had : nor can it be said to be apocha , which is a witnessing the payment or delivery of money , whch disscharges not unless the money be paid . acre . acre is a certain parcel of land that contains in length forty perches , and in breadth four perches , or of this quantity , be the length more or less . and if a man will erect a new cottage , he ought to lay four acres of land unto it , according to this measure , eliz. cap. . and with this measure agrees master crompton in his jurisdiction of courts , fol. . yet he saith , that according to divers customs of several countries , the perch differs , being in some places ( and most usually ) but sixteen foot and an half : but in the county of stafford the perch is twenty four foot , as was heretofore adjudged in the exchequer . in the stat. made an . h. . c. for the sowing of flax perches make au acre . the ordinance of measuring of land made an . e. . st. . agrees with this account . action . action is the form of a suit given by the law to recover a thing ; as an action of debt and such like ; or as it is co. . f. a. an action is a right of prosecuting to judgment that which is due to any one . see the lexicon of the law , for action . action of a writ . action of a writ is a phrase of speech used when one pleads some matter , by which he shews that the plaintiff had no cause to have the writ which he brought , and yet it may be that he may have another writ or action for the same matter . such a plea is called a plea to the action of the writ : whereas if by the plea it should appear that the plaintiff hath no cause to have an action for the thing demanded , then it shall be called a plea to the action . action upon the case . action upon the case is a writ brought against one for an offence done without force , as for not performing promise made by the defendant to the plaintiff , or for speaking of words by which the plaintiff is defamed , or for other misdemaenour or deceit ; where the whole case shall be contained in the writ . trover , nusance , slander of the person , trade , title , escape on mesne process ; for negligent keeping fire , for inartificial performing work , for turning an ancient water-course , for a commoner against one who digs the soil of his common , or puts his cattel into it without right , or incloses part of the cemmon . action mixt . action mixt is a suit given by the law to recover the thing demanded , and damages for the wrong done ; as in ass of novel dis . which writ ( if the disseisor make a feoffm . to another ) the diseissce shall have against the disseissor and the feoffee or other tertenant , and thereby shall recover his seissn of the land , and his damages for the mean profits , and for the wrong done him . and so is an action of waste & quare impedit . but an action of detinue is not called an action mixt , although by it the thing withheld is demanded , and shall be recovered if it may be found , and damages for the withholding ; and if it cannot be found , then damages for the thing and the detaining . but that is called only an action personal , because it should be brought only for goods and chattels , or charters . action upon the statute . action upon the statute is a writ founded upon any statute whereby an action is given to one in any case where no action was before : as where one commits perjury to the prejudice of another , who is indamaged shall have a writ upon the statute , and his case . and the difference between an action upon the statute and action popular is , that where the statute gives the suit or action to the party grieved , or otherwise to one person certain , that is called action upon the statute : but where by the statute authority is given to every one that will to sue , that is termed action popular . actions personal . actions personal are such actions whereby a man claims debt , or other goods and chattels , or damage for them , or damages for wrong done to his person , and it is properly that which in the civil law is called actio in personam , which is brought against him who is bound by covenant or default to give or grant any thing . action popular . action popular is an action given upon the breach of some penal statute , which action every man that will may sue for himself and the king , by information or otherwise , as the statute allows , and the case requires . aud of these actions there are an infinite number ; but one for example : as when any of the iury , that are impannelled and sworn to pass between party and party indifferently , do take any thing of the one side or other or of both parties , to say their verdicts on that side , then any man that will , within the year following the offence , may sue a writ called decies tantum against him or them that so did take to give his verdict . and because this action is not given to one especially , but generally to any of the kings people that will sue , it is called an action popular . but in this case when one hath begun to pursue an action , no other may sue it ; and in this , as it seems , it varies from an action popular by the civil law. actions real . actions real are such actions whereby the demandant claims title to any lands or tenements , rents or commons , in fee simple , fee-tail , or for term of life . every action real is either possessory , that is , of his own possession or seisin ; or ancestrel , scil of the seisin or possession of his ancestor . co. lib. . fol. . acts. acts of parliament are positive laws , which consist of two parts , that is to say , of the words of the act , and of the sense ; and they both joyned together make the law. additions . addition is that which is given to a man besides his proper name and surname , that is to shew of what estate , degree , or mystery he is , and of what town , hamlet , or county . additions of estate are these , yeoman , gentleman , esquire , and such like . additions of degree are these which we call names of dignity ; as knight , earl , marquess , duke . additions of mystery , are scrivener , painter , mason , carpenter , and all other of like nature : for mystery is the craft or occupation whereby a man gets his living . additions of town , as sale , dale ; and so of the rest . and where a man hath a houshold in two places , he shall be said to dwell in both of them ; so that his addition in one of them doth sufice . by the statute an. h. . c. . it was or dained that in suits or actions where process of vtlagary lies , such additions should be to the name of the defendant , to shew his estate , mystery , and place where he dwells ; and that such writs shall abate , if they have not such additions , if the defendant take exception thereto ; but they shall not abate by the office of the court. also duke , marquess , earl , or knight , are none of those additions , but names of dignity , which should have been given before the statute . and this was ordained by the said statute , to the iutent that one man might not be grieved nor troubled by the vtlary of another : but that by reason of the certain addition every man might be certainly known , and bear his own burthen . adjournment . adjournment is , when any court is dissolved and determined for the present , and afsigned to be kept again at another place or time , and ( methinks ) is compounded of two words ( ad , or al , and jour . ) admeasurement of dower . admeasurement of dower is a writ that lies where a woman is endowed by an infant or by a gardian of more than she ought to have ; the heir in such case shall have this writ , whereby the woman shall be admeasured , and the heir restored to the overplus . but if one abate , that is , one who hath no right enter after the death of the husband , and indow the wife of him that is dead , of more than she ought to have , the heir shall not have this writ , but assise ● mort dancestor , against the woman : and if she plead that she was indowed of the land as of the free-hold of her husband , the heir shall shew how she was indowed by the abator , and that she had more than she ought to have , and shall pray that he may be restored to the surplusage ; and if it be found , he shall be restored . admeasurement of pasture . admeasurement of pasture is a writ that lies where many tenants have common appendant in another ground , and one overcharges the common with many beasts : then the other commoners may have this writ against him . and also it may be brought by one commoner only : but then it ought to be brought against all the other commoners , & against him that surcharged , for that all the commoners shall be admeasured . and this writ lies not against him nor for him that hath common appurtenant . or common in gross ; but those who have common appendant , or common because of vicinage . see the diversity of all these commons afterwards in the title of common . also this writ lies not for the lord , nor against the lord , but the lord may distrain the beasts of the tenant that are surplusage . but if the lord overcharge the common , the commoner hath no remedy by the common law , but an assise of his common . administrator . administrator is he to whom the ordinary commits the administration of the goods of a dead man for default of an executor , and an action shall lie against him , and for him , as for an executor , and he shall be charged to the value of the goods of the dead man , and no further , unless it be by his own false plea , or by wasting the goods of the dead . if the administrator die , his executors are not administrators , but it behoves the ordinary to commit a new administration . and if a stranger that is not administrator nor executor take the goods of the dead , and administer of his own wrong , he shall be charged and sued as an executor , and not as administrator , in any action brought against him by any creditor . but if the ordinary make a letter ad colligendum bona defuncti , he that hath such a letter is not administrator , but the action lieth against the ordinary , as well as if he take the goods in his own hand , or by the hand of any of his servants by any other commandment . there is also another sort of administrator , where one makes his will and makes an infant under the age of his executor . the bishop commits administration to some friend during the nonage of the executor , which administrator if he sue , does not declare that the deceased died intestate . which administration ceases when the infant is years old . admiral . admiral is a high officer that has the government of the kings navy , and the hearing and determining of all causes , as well civil as criminal belonging to the sea ; and to that purpose hath his court called the admiralty . he may cause his citation to be served upon the land , and take the paries body or goods in execution upon the land. also he hath cognizance of the death or maihem of a man , committed in any great ship fleeting in great rivers in the realm , beneath the bridges of the same next the sea. also to arrest ships in the great streams for the voiages of the king and realm ; and hath iurisdiction in the said streams during the same voiages . ad quod damnum . ad quod damnum is a writ which ought to be sued before the king grant certain liberties , as a fair , market , or such like , which may be prejudicial to others . and thereby it shall be required if it should be a prejudice to grant them , and to whom it shall be prejudicial , and what prejudice shall come thereby there is also another writ of ad quod damnum , if any one will turn a common high-way and lay out another way as veneficial . both which ( though found to be prejudicial ) may be traversed in another action , although the king hath made his grant pursuant to the verdicts of the iury. advent . advent is a time which contains about a month next before the feast of the nativity of our saviour christ . in which our ancestors repossed great reverence for the nearness of that solemn feast ; so that all suits in law were then remitted for a season : wherefore there was a statute ordained , westm . . cap. . that , not withstanding the said solemnity , it might be lawful , in respect of iustice and charity , to take assies of novel disseisin and darreigne presentment , in the times of advent , septuagesima , and lent. this is one of the times from the beginning of which until the octaves of epiphany the solemnizing of marriages is prohibited to be solemnized without special licence , according to the verses : advent all marriage forbids , hilarys feast to nuptials tends : and septuagint no wedding rids , yet easters octaves that amends . rogation hinders hasty loves , but trinity that lett removes . but the bishop may dispense with a marriage within these times , and it is good . advowson . advowson is , where a man and his heirs have a right to present their clerk to a personage , or other spiritual benefice , when it becomes void . and he which hath such right to present is called patron . in gross is when one is seised of it only by it self . and there is an advowson appendant to a mannor , or to a rectory ; and this may be sold by it self and then it is in gross , and is severed from the mannor and rectory . affeerors . affeerors are such as be appointed in court-leets , &c. to mulct those who have committed any fault which is arbitrably punishable , and for which no express penalty is prescribed by statute , you may see the form of their oath in kitchin fol. . if the iurors in the leet receive the articles , and being commanded to answer to them and present , they refuse so to do , then they shall be amerced ; yet the amerciament of every iuror shall be affeered according to his offence . so in assise of novel disseisin all the disseisors shall be amerced , and every one shall be affeered by himself . but if a town be amerced , there the afferance shall be general , for there is not any certain person named , as in the cases aforesaid . and if a iury in a leet tax an amerciament , this suffices without any affeerment ; for the amerciament is the act of the court , and the affeerment is the act of the iury. coke lib. . fol. , . b. affiance . affiance is , the plighting of troth betwixt a man and a woman upon an agreement of a marriage to be had between them ; and affidare , from whence this word is derived , is as much as fidem ad alium dare . and this word affiance is used by littleton , chap. dower sect. . afforest . afforest is , to turn ground into forest . charta de foreseta , cap. . & . anno hen. . affray . affray comes of the french word ( effrayer ) which signifies to affright or scare ; therefore an affray may be without word or blow given , and so this word is used in the statute of north. . e. . cap. . but it is in our books many times confounded with the word assault , as it appears by lambert in his eirenarch lib. . cap. . yet , as it is there said , they differ in this , that an assault is but a wrong to the party , but an affray is a wrong to the common-wealth : and therefore an affray is inquirable and punishable in a leet . also an assault is made most commonly but on one side ; but an affray is the fighting of many together . age prier . age prier is , when an action is brought against an infant for land which he hath by descent , there he shall shew the matter to the court , and shall pray that the action may stay till his full age of years , and so by award of the court the suit shall surcease . but in a writ of dower and in assise , and also in such actions where the infant is supposed to come to the land demanded by his own wrong , he shall not have his age . and note well , that there are many diversities of ages . for the lord shall have aide of his tenant in socage to marry his daughter , when the daughter is of the age of years , and aid to make his son and heir a knight , when he is of the age of years . a woman who is married at the age of years , if her husband die seised , shall have dower , and not before . and years is the age of a woman , who shall not be in ward , if she were of such age at the time of the death of her ancestor ; but if she were within the age of years , and in ward of the lord , then she shall be in ward till the age of years . and years is the age of the heir male to be in ward , and after that out of ward . also that is the age of male and female to sue and to be sued for lands , which they have or claim by descent , and to make all manner of contracts and bargains , and not before : but if such an infant within the age of years give his goods , and the donee take them , the infant may have an action of trespass : but otherwise it is if he deliver them himself . see coke lib. . fol . a. l. . f. . agent & patient . agent & patient is , when a man is the doer of a thing and the party to whom it is done ; as where a woman endows her self of the fairest possession of her husband . so if a man hath ten pounds issuing out of certain land , and he disseises the tenant of the land in an assise brought by the disseisee , the disseisor shall recoup the rent in the damages ; so that where the mean profits of the land in such case were to the value of l. the disseisee shall recover but three pounds . also if a man be indebted to another , and after makes the party to whom he is so indebted his executor , and dies , the executor may retain so much of the goods of the dead in his hands as his own debt amounts to ; and by this retainer he is the agent and the patient , that is , the party to whom the debt is due , and the party that pays the same . but a man shall not be judge in his own case , as is resolved , coke lib. . fol. . in bonham's case , that the censors cannot be iudges . ministers , and parties . iudges to give sentence or judgment , ministers to make summons , and parties to have the half of the forfeiture . and although an act of parliament yields to any one , to hold or to have conusance of all manner of pleas arising before him within his mannor of d. yet he shall hold no plea to which he himself is party ; quia iniquum est aliquem suae rei esse judicem . agist . agist seems to come of the french giser ( i jacere ) or of gister , ( i. stabulari ) a word proper to deer ; and therefore budaeus lib. poster . philologiae , says that gist idem est quod lustrum vel cubile and agist in our common law signifies to take in and feed the cattel of a stranger in the kings forests ; and therefore those officers in the forest that thus take in cattel , and gather the money for the feed of them , are called agistors , and the feed or herbage of the cattel is called agistment ; which in a large signification extends to all manner of common of herbage of any kind of ground , or land , or woods , or the money that is due or received for the same , as well out of forests as within them . see manwood's forest laws . c. . fol. . agreement . agreement is thus defined or expounded in plowdens's commentaries : aggreamentum is compounded of two words , namely , aggregatio and mentium , that is , agreement of minds . so that agreement is a consent of minds in some things done or to be done ; and by drawing together the two words , aggregatio and mentium , and by the hasty and short pronouncing of them , they are made one word , to wit , aggreamentum , which is no other than a joyning , coupling , and knitting together of two or more minds in any thing done or to be done . ( see after in testament . ) and this agreement is in three manners . the first is an agreement executed already at the beginning . the second is an agreement after an act done by another , and is an agreement executed also . the third is an agreement executory , or to be done in time yet to come . the first , which is an agreement executed already at the beginning , is such whereof mention is made in the stat. of e. . c . of clothes , in the th sat. which saith , that the goods and things bought by forestallers , being thereof attainted , shall be forfeit to the king , if the buyer have made gree with the seller . in which case the word ( gree ) which is otherwise called agreement , shall be extended to agreement executed , that is , payment for the things . the second manner of agreement is , where one doth a thing or act , and another agrees or assents thereunto afterwards : as if one make a disseisin to my use , & afterwards i agree to it , now i shall be a disseisor from the beginning . and such agreement is an agreement after an act done . the third agreement is , when both parties at one time are agreed that such a thing shall be done in time to come : and this agreement is executory , in as much as the thing shall be done after , and yet there their minds agreed at one time . but because the performance shall be afterward , and the thing upon which the agreement was made remains to be done , that agreement shall be called executory . and that the stat. of h. . c. . doth prove , which saith , that every vicar , parson , and such liks , &c. before their actual possession or medling with the profits of their benefices , shall satisfie , content , &c. or agree to pay the king the first-fruits , &c. & if any such parson or vicar , &c. enter in actual possession , &c. this agreement is to be understood executory , as common usage proves : for it is used , that he , with one or two with him , do make two or three obligations , for it is to be paid at certain days after . and this agreement executory is divideded into two points : one is an agreement executory which is certain at the beginning , as is said last before of the first-fruits . the other is , when the certainty doth not appear at the first , and the parties are agreed that the thing shall be performed or payed upon the certainty known : as if one sell to another all his wheat in such a bay of his barn unthres ed , and it is agreed between them , that he shall pay for every bushel s . when it is threshed clean and measured . aid . aid is when a tenant for term of life , tenant in dower , tenant by courtesie , or tenant in tail after possibility of issue extinct , is impleaded ; then , for that they have no estate but for term of life , they shall pray in aid of them in the reversion , and process shall be made by writ against him , to come and plead with the tenant in the defence of the land , if he will : but it behoves that they agree in the plea ; for if they vary , the plea of the tenant shall be taken , and then the aid-prayer is void : but if he come not at the second writ , then the tenant shall answer sole . also tenant for years , tenant at will , tenant by elegit , and tenant by statute-merchant , shall have aid of him in the reversion ; and the servant and bailiff of their master , when they have done any thing lawfully in the right of their master , shall have aid . this word is sometimes applied to subsidies , as in e. . stat. . cap. . other times to a prestation due from the tenants to their lords ; as for relief due to the lord paramount or for the making of his son a knight , or for marrying of his daughter . glan . lib. . c. . this aid the k. or other lord by the ancient law of england , may lay upon their tenants , to make his son knight at the age of years , and to marry his daughter at the age of years , regist . orig . fol. . a. and that at what rate they please . but the stat. of west . . made an. . ed. . ordained a restraint for any great or large demand made by common persons , being lords , in this case , and hath tied them to a certain rate ; and the stat. of ed. . stat. . c. . provides that the rate which is appointed by the former stat. shall be held in the king as well as in other lords . aid of the king. aid of the king is in like case as it is said before of a common person , & also in many other cases where the king may have loss , although the tenant be tenant in fee-simple , he shall have aid ; as if a rent be demanded against the kings tenant who holds in chief , he shall have aid , so he shall nor of a common person . and where a city or borough hath a fee-farm of the king , and any thing is demanded against them which belongs to the fee-farm they shall have aid for it of the king. also a man shall have aid of the king in the stead of voucher . and the kings baliff , the collector and the purveyor shall have aid of the king , as well as the officers of other persons . aile . aile is a writ which lies where land descends from the grandfather to his nephews , sc . the son or daughter of the son of the grandfather ; the father being dead before the entry by him , and one abates , the heir shall have against the abator this writ . aler sans jour . aler sans jour is , ( word for word ) to go without day , that is , to be dismist the court , because there is no day of farther appearance assigned . ale-taster . ale-taster is an officer appointed and sworn in every leet , to look that the due assise be kept of all the bread , ale and beer sold within the iurisdiction of the leet . alien . alien is a subject born out of the liegeance of our king , and he cannot have any real or personal action concerning land , but in every such action the tenant or defendant may plead that he was born in such a place , which is not within the kings liegeance , and demand judgment if he shall be answered . every alien friend may by the common law have and get within this realm , by gift , trade , or other lawful ways , any treasure or personal goods whatsoever , as well as any englishman , and may maintain any action for the same . but land within this realm or houses ( if not for their dwelling only ) alien friends connot have nor get , nor maintain any action real or personal for any land or house , unless the house be for their necessary dwelling . an alien enemy cannot maintain any action , nor get any thing within this realm . and the reasons why aliens born are not capable of inheritance within england , are ; . the secrets of the realm may by this be discovered . . the revenues of the realm shall be taken and injoyed by strangers born . . this will tend to the destruction of the realm . first , in the time of war , for then strangers may fortifie themselves in the heart of the realm , and set in combustion the common-wealth . secondly , in the time of peace , for by such means many aliens born may get a great part of the inheritance and free-hold of the realm , by which there would ensue a want of iustice , the supporter of the common-wealth , for this that aliens cannot be returned of iuries , nor sworn for the tryal of issues between the king and subject , or between subject and subject . vide coke lib. . calvins case . alienation . alienation is as much to say as to make a thing another mans , or to alter or put the possession of lands or other things from one man to another . and in some cases a man hath power in himself so to do , without the assent or licence of any other , and in some not . as if tenant in chief alien his estate without the kings licence , then by the st. of ed. . c. . a reasonadle fine shall be taken , where at the common law before the said st. the lands and tenements held in chief of the k. and aliened without licence , have been held forfeited . and if the k's tenant that holds in chief intended to alien unto c. to the use of d. and hereupon if he purchase licence to alien to c. and accordingly aliens to c. to the use of d. which use is not mentioned in the licence ; in this case he shall pay but one fiue , for it is but one alienation . coke lib. fol. . but if a man will alien lands in fee-simple to an house of religion , or to a body incorporate , it behoves him to have the kings licence to make this grant or alienation , and the chief lords of whom such lands are held , &c. otherwise the land so alienated in mortmain shall be forfeited by the statute of r. . cap. . allay . allay is the temper or mixture of gold and silver with baser metal , for the increasing the weight of it so much as might countervail the kings charge in the coyning . this word is used in the statute of h. . cap. . for the payment of english gold by the kings weight . almner . almner is an officer of the kings house , whose office is to distribute the kings alms every day ; and to that purpose he hath the collecting of all forfeitures of deodands , and of the goods of felons de se , which the king allows him to dispose in alms to the poor . and of his office , see flets , lib. . cap. . almoin . almoin , see aumone . alnager . alnager is an officer of the kings , who by himself , or by his deputy looks to the assise of all cloth made of wool throughout the land , and to put a seal , for that purpose ordained , unto them . e. . stat. . c. . anno . r. . c. . and he is to be accomptable to tae king for every cloth that is so sealed in a fee or custom hppertaining to it . altarage . altarage in latin , altaragium , signifie duties and offerings to holy altars mention'd cro. rep. . that a vicarage was endowed with it and small tythes . ambidexter . ambidexter is he that , when a matter is in suit between men , takes money of the one side and of the other , either to labour the suit , or such like ; or if he be of the iury , to give his verdict . amendment . amendment is , when error is in the process , the iustices may amend it after iudgment . but if there be error in giving iudgment , they may not amend it , but the party is put to his writ of error . and in many cases , where the default appears in the clerks that writ the record , it shall be amended : but such things as come by information of the party , as the town , mystery , and such like , shall not be amended , for he must inform true upon his peril . amercement . amercement most properly is a penalty assessed by the peers or equals of the party amerced , for an offence done ; as for want of suit of court , or for not amending someting that he was appointed to redress by a certain time before , or for such like cause ; in which case the party who offends puts himself in the mercy of the king or lord , and thereupon this penalty is called amerciament . and there is a difference between amerciaments and fines , kitch . . for fines are punishments certain , which grow expressy from some statute ; and amerciaments are such which are arbitrarity imposed by the affeerors , which kitchin seems to confirm fol ● . in these words , the amerciament is affeered by equals . also it appears , coke lib. . fol. . that a fine is always imposed and assessed by the court , but amerciament , which is called in latin misericordia , is assessed by the country . another diversity there is : as if a man be convict before the sheriff of the county of a recaption , he shall be only amerced , but if he be convict of this in the common bench , he shall be fined . and the reason of this diversity is , that the county court is not a court of record , and therefore cannot impose a fine , for no court can impose a fine but such a court as is of record , cok. lib. . fol. . a. if the defendant or tenant plead a false deed to him , or deny his own deed , and this is found against him , or he , leaving his own verification , acknowledges the action ; he shall be fined for his falsity , because we ought to be sure of our own acts. but if one deny the deed of his ancestor , and this is found against him , yet he shall not be fined , but amerced only , because it was the act of a stranger . co. lib. . fol. . a. see more there . amercement royal . amercement royal is , when a sheriff , coroner , or other such officer of the king , is amerced by the iustices for his abuse in the office. learn if it should not be called a fine . amoveas manus . amoveas manus . see ouster le mayne . an , jour , & wast . an , jour , & wast , is a forfeiture when a man hath committed petit treason or felony , and hath lands holders of some common person , which shall be seised for the king , and remain in his hands by the space of one year and a day next after the attainder ; and then the trees shall be pulled up , the houses razed and pulled down , and the pastures and meadows eyred and plowed up ; unless he to whom the lands should come by escheat or forfeiture redeem it of the king. a thing the more to grieve the offendors , and terrifie others to fall into the like , in shewing how the law doth detest the offence so farr forth , as that it doth execute judgment and punishment even upon their dumb and dead things . aniente . aniente comes from the french aneantir , that is , annihiliare ; for aniente in our law-language signifies as much as frustrated or made void , and is used by littleton in his . section . annates . anates is a word used in the statute of hen. . cap. . and seems to all one with first-fruits : for so pol. virgil. de inventione rerum , lib. . cap. . says , that annatarum usus multo antiquior est quam recentiores quidam scriptores suspicantur , & annatas ( more suo ) appellant primos fructus unius anni sacerdotii vacantis , aut dimidiam eorum partem . annua pensione . annua pensione is a writ by which the king , having due unto him an annual pension from any abbot or prior for any of his chaplains which he will name , who is not provided of a competent living , demands it of the said abbot or prior for one that is named in the same writ , until , &c. and also commands him , for the better certainty of his chaplain , to give his letters patents to him for the same . see fitzherb . nat. brē fol , . where you may also see the names of all the abbies and priories which were bound to this in respect of their foundation or creation , and also for the form of the letters patents usually granted upon such a writ . annuity . annuity is a certain sum of money granted to another in fee-simple , fee-tail , for term of life , or for term of years , to receive of the grantor , or of his heirs , so that no free-hold is charged therewith , whereof a man shall never have assise nor other action , but a writ of annuity ; and it is no assets to the heir of the grantee , to whom it shall descend . there are many differences between annuities and rents : for every rent is issuing out of land , but an annuity is not , but charges the person , that is , the grantor or his heirs , which have assets by descent , if some special proviso be not to the contrary : as littl. sect. . also for an annuity no action lies , but only a writ of annuity against the grantor , his heirs or successors : and this writ of annuity never lies against the taker of the profits , but only against the grantor , or his heirs . whereas for a rent the same actions he against the tenant of the land , and sometimes against him that is taker of the rent , that is , against him that takes the rent wrongfully . also au annuity is not to be taken for assets , because it is not any free-hold in law. and it shall not be put in execution upon a statute-merchant , or statute-staple , or elegit , as a rent may . doct. & stud. cap. . see dyer fol . pla . . also an annuity cannot be fevered , co. l. . fol. . b. according to the verse there : let no judge himself endeavour annuities or debts to sever . anoysance . anoysance is a word used in the statute of hen. . cap. and signifies no more than nusance , and therefore see title nusance . apostata capiendo . apostata capiendo is a writ directed to the sheriff , for the taking of the body of one who , having entred into , and professed some order of religion , leaves his said order , and departs from his house , and wanders in the country : vpon a certificate of this matter made by the soveraign of the house in the chancery , and the praying of the said writ , he shall have it directed to the sheriff for the apprehending of him , and redelivery of him to the said sovereign of the house , or his lawful attorney . see the form of it in fitz. nat. br. . c. appeal . appeal is where one hath done a murther , robbery , or maihem , then the wife of him that is slain shall have an action of appeal against the murtherer ; but if he have no wife , then his next heir-male shall have the appeal at any time within a year and a day after the deed . also he that is so robbed or maimed shall have his appeal : and if the defendant be acquitted , he shall recover damages against the appealer and the abettors , and they shall have the imprisonment of a year , and shall make fine to the king. an appeal of mathem is in manner but a trespass , for he shail only recover damages . appeals are commenced two ways , either by writ or by bill . by writ , when a writ is purchased out of the chancery by one man against another , commanding him that he shall appeal a third man of some felony or other offence by him committed , and to find pledges that he shall do this with effect ; and this writ is to be delivered to the sheriff to be recorded . appeal by bill is , when a man of himself gives his accusation of another man in writing to the sheriff or coroner , and takes upon himself the burthen of appealing him that is named in the said writing . appellant is the plaintiff in the appeal . appendant & appurtenant . appendant & appurtenant are things that by time of prescription have belonged , appertained , and are joyned to another principal thing , by which they pass and go as accessary to the same special thing , by virtue of these words , pertinentiis , as lands , advowsons , commons , piscaries , ways , courts , and divers such like to a mannor , house , office , or such others . apportionment . apportionment is a dividing into parts a rent which is dividable , and not entire or whole ; and forasmuch as the thing out of which it was to be paid is separated and divided , the rent also shall be divided , having respect to the parts , as if a man have a rent-service issuing out of land , and he purchases parcel of the land , the rent shall be apportioned according to the value of the land. so if a man hold his land of another by homage , fealty , escuage , and certain rent , if the lord of whom the land is holden purchase parcel of the land , the rent shall be apportioned . and if a man let lands for years , reserving rent , and after a stranger recover part of the land ; then the rent shall be apportioned , that is , divided , and the lessee shall pay , having respect to that which is recovered , & to that which yet remains in his hands , according to the value . but a rent-charge cannot be apportioned , nor things that are entire : as if one hold land by service to pay to his lord yearly at such a feast an horse , an hawk , a rose , a cherry , or such like ; there if the lord purchase parcel of the land , this service is gone absolutely , because an horse , an hawk , a rose , a cherry , and such other , cannot be divided or apportioned , without damage to the whole . in some cases rent-charge shall be apportioned : as if a man hath a rent-charge issuing out of land , and his father purchases parcel of the lands charged in fee , and dies , and this parcel descends to his son who hath the rent-charge ; there this charge shall be apportioned according to the value of the land , because such portion of the land purchased by the father , comes not to the son by his own act , but by descent and course of law. common appendant is of a common right and severable ; and although the commoner in such case purchase parcel of the land wherein the common is appendant , yet the common shall be apportioned : but in this case common appurtenant and not appendant by such purchase is extinct . coke lib. . fol. . appropriations . appropriations were , when those houses of religion , and those religious persons , as abbots , priors , and such like had the advowson of any parsonage to them and their successors , and obtained licence of the pope , ordinary , and king , that they themselves and their successors from thenceforth should be parsons there , and that it should be from thanceforth a vicarage , and the vicar should serve the cure. and so at the beginning appropriations were made only to those persons spiritual that could administer the sacraments and say divine service , as abbots , priors , deans , and such like . after by little and little they were enlarged and made to others , as namely to a dean and chapter , which is a body corporate , consssting of many , which body together could not say divine service ; and ( which was more ) to nuns that were prioresses of some nunnery , which was a wicked thing , in regard that they could neither administer sacraments , nor preach , nor say divine service to the parishioners . and all this was upon pretence of hospitality and maintenance thereof . and to supply these defects a vicar was devised , who should be deputy to the priors or to the dean and chapter , and also at the last to the said abbots , and others to say divine service , and should have for his labour but a little portion , and they to whom the appropriations were made should retain the greater revenues ; and they did nothing for it , by means whereof hospitality decayed in the place where it ought to have been chiefly maintained , namely , in the parish where the benefice was , and where the profits grew : and so it continues to this day , if not worse , since not only friers and nuns , but lay-men and seculer women are possessed of them , to the great hinderance of learning , impoverishment of the ministry , and infamy of the gospel and professors thereof . the vicar shall have a certain portion of the benefice , and the abbot and the covent shall be parsons , and shall have the other profits . this is called appropriation , and then the abbot and covent shall be parsons emparsonees : but such appropriation may not be made to begin in the life of the parson , without his assent . and after the church was appropriated , then was it an incident inseparable to the house of religion to which it was so appropriated . and therefore where the lands of the templars in england were given by the general words of an act of parliament of e. . to the hospitallers , it was adjudged , that the hospitaliers by the said act should not have the appropriation , for it was inseparably annexed to the corporation of the templars : which thing consisting in an inseparable privity , by the general words of an act of parliament shall not be transferred to others . coke lib. . fol. . a. but if such advowsons of the parsonage be recovered by ancient title , then the appropriation is adnulled . and it is called appropriation , for that they hold the profits to their own proper use . approvement . approvement is , where a man hath common in the lords waste ground , and the lord incloses part of the waste for himself leaving nevertheless sufficient common , with egress and regress , for the comm●ners . this inclosing is called approvement . see reg. jud. fol. , & . approver . approver or appellor is he who hath committed some felony , which he confesses , and now appeals or approves , that is , accuses others who were coadjuters or helpers with him in doing the same or other felonies , which thing he will approve . and this proof is to be either by battel , or by the countrey , at his election that appealed . this accusation is often done defore the coroner , who either is assigned to the felon by the court to take and record that which he saith ; or is called by the felon himself , and required , for the good of the prince and common wealth , to record that which he shall say . the oath of the approver when he begins the combate , as also the proclamation by the heraulds , appear in crompt . pag. ult . if a man of good fame be appealed by an approver , by which he is taken and kept in prison , yet he may have a writ to be directed to the sheriff , commanding him to suffer the party appealed to be bailed by good sureties . but if a man appealed by an approver be kept in prison , and afterwards the approver dies , there he may sue a writ directed to the sheriff , to suffer him to be bailed upon good surety , if he be not a notorious felon , although he be not of good fame . fitz. n. b. . d. the kings approvers . the kings approvers are those that have the letting of the kings demeans in small mannors for the kings greater advantage . and for such approvers you may read in the stat. e. . c. . that they were men s ● nt into divers countries to increase the farms of hundreds and wapentakes . and you may see in the statute made in e. . c. . that the sheriffs call themselves the kings approvers . arbitrement . arbitrement is an award , determination , or iudgement , which one or more makes at the request of two parties at the least , for and upon some debt , trespass , or other controversie had between them . and this is called in latin arbitratus , and arbitrium ; and they tha ● make the award or arbitrement are called arbitri , in english arbitrators to every arbitrement five things are incident ; sc . matter of controversie , submission , parties to the submission , arbitrors , and giving up of the arbitrement . dyer . pl. . if the arbitrement be made , that the one party shall go quit of all actions which the other hath against him , and nothing is said of the actions which he hath against the other ; this arbitrement is void because it was made of the one part , and not of the other . h. . ca. . when a submission to an arbitrement is general of all actions , &c. and the arbitrator makes an award only of one ; yet this may well stand with the generality of the words , that there was but one cause depending between them ; for , a generality implies no certainty . and if the arbitrement should be for this avoided , then many arbitrements might be avoided ; for the one might conceal a trespass done , or other cause of action given him , and so avoid the arbitrement . also no party to any arbitrement shall be by it bound , unless the award be delivered unto him , as it is in co. lib. . f. . see co. l. . fol. . arches . arches ( or the court of the arches ) is the chief and most ancient consistory belonging unto the archbishop of canterb. and , it is called from the arches of the church where the court is kept , namely , bow-church in london . and of this cour ● mention is made in stat. h. . cap. . touching appeals . arms. arms , in the understanding of the law , is extended to any thing that a man , in his anger or fury takes into his hand to cast at , or strike another . cromp. justice of peace . fol. . a. array . array is the taking or ordering a iury or enquest of men that are impannelled upon any cause , h. . cap. . from whence comes the verb , to array a pannel , old n. b. f. . that is , to set forth one by another the men that are impannelled . the array shall be quashed , ibid. by statute every array in assise ought to be made four dayes before . brook tit . pannel . num . . to challenge the array . kitch . . arrain . arrain is to put a thing in order or in his place : as one is said to arrain an assise of novel disseisin in the county in which it ought to be brought for trial before the iustices of that circuit , old n. b. fol. . and in such sense litt. hath used the same word , the lessee attains an assese of novel disseisin . also a prisoner is said to be arraigned , when he is indicted and put to his trial . arrerages . arrerages are duties behind unpaid after the days and times in which they were due , and ought to have been paid , whether they be rents of a manor ; or any other thing reserved . arrest . arrest is when one is taken and restrained for his liberty . none shall be arrested for debt , trespass , detinue , or other cause of action , but by virtue of a precept or commandment out of some court. but for treason felony , or breaking of the peace , every man hath authority to arrest without warrant or precept . and where one shall be arrested for felony , it behoves that some felony be done , and that he be suspected of the same felony ; or otherwise he may have against him that did so arrest him a writ of false imprisonment . and when any man shall be arrested for felony , he shall be brought to the goal , there to abide till the next sessions , to be indicted or delivered by proclamation . arretted . arretted is he that is convented before any iudge , and charged with a crime . sometimes it is used for imputed or laid unto : as no folly can be arretted to him that is within age , lit. cap. remit . this word may come of the latiu word rectus , for bacton hath this phrase , ad rectum habere malefactorem , so that he may be charged and put to his trial . and in another place he saith , rectarus de morte hominis . assach . assach seems to be a brittish word , and to signifie a strange kind of excuse or purgation by the oaths of . men . anno h. . cap. . assart . assart is an offence committed in the forest , by pulling up by the roots the woods which are thickets or coverts of the forest , and by making them as plain as the arable land. this assart of the forest is the greatest offence or trespass that can be done in the forest to vert or venison , containing in it waste , or more : for where waste of the forest is nothing but the felling and cutting down of the covert wood , which may in time grow again ; an assart is a pulling up by the root , by which they can never grow again . man. part . . c. . num . . a writ of ad quod damnum may be awarded , where a man will sue licence to assart his land within the forest , and make it several for tillage ; so that it is no offence if it be done by licence . regist . orig . fol. . assault . assault ( from the french assaillir ) signifies a violent kind of injury offered to a mans person , of a more large extent than battery ; for it may be committed by offering a blow , or by a terrifying speech . lamb. eiren. lib. . cap. . assayer . assayer is an officer of the mint appointed by the stat. of h. . c. . to be present at the taking in of the bullion as a party indifferent between the master of the mint and the merchant , to set the true value of the bullion according to the law. assets . assets is in two sorts ; the one called assets per discent , the other , assets enter maines . assets ● discent is , where a man is bound in an obligation , and dies secised of lands in fee-simple , which descend to his heir , then his land shall be called assets , that is , enough or sufficient to pay the same debt ; and by that means the heir shall be charged as far as the land so to him descended will stretch . but if he have aliened before the obligation be put in suit , he is discharged . also when a man seised of lands in tail , or in the right of his wife , aliens the same with warranty , and hath in value as much lands in fee-simple , which descends to his heir , who is also heir in tail , or heir to the woman : now if the heir , after the decease of his ancestor , bring a writ of formedon , or sur cui in vita , for the land so aliened ; then he shall be barred , by reason of the warranty , and the land so descended , which is as much in value as that which was sold , and so thereby he hath received no prejudice . therefore this land is called assets per discent . assets enter maines is , when a man indebted ( as before is said ) makes executors , and leaves them sufficient to pay , or some commodity or profit is come unto them in right of their testator ; this is called assets in their hands . assignee . assignee is he to whom a thing is appointed or assigned to be used , paid , or done ; and is always such a person who occupres or hath the thing so assigned in his own right , and for himself . and of assignees there are two sorts , namely , assignee in deed , and assignee in law. assignee in deed is , when a lease is granted to a man and his assignees , or without that word , assignees , and the grantee gives , grants , or sells the same lease to another , he is his assignee in deed. assignee in law is every executor named by the testator in his testament . as if a lease be made to a man and his assignees ( as is aforesaid ) and he makes his executors , and dies without assignment of the lease to any other ; the executors shall have the lease , because they are his assignees in law. and so it is in other cases . assise . assise is a writ that lies where any man is pur out of his lands tenements , or of any profit to be taken in a certain place , and so disseised of his free-hold . free-hold to any man is , where he is seised of lands and tenements , or profit to be taken in fee-simple , fee-tail . for term of his own or another mans life . but tenant by elegit , tenant by stat merchant and stat. staple may have assise , though they have no free-hold ; and this is ordained by divers statutes . in an assise it is needful always that there be one disseisor and one tenant , or otherwise the writ shall abate . also where a man is disseised and recovers by assise of novel disseisin , and afterward is again disseised by the same disseisor , he shall have against him a writ of redisteisin directed to the sheriff to make inquisition ; and if the redisseisin be found , he shall be sent to prison . also if one recover by assise of mortduncaster , or by other iury , or default , or by reddition , and if he be another time disseised , then he shall have a writ of post disseisin ; and he who is taken and imprisoned for redisseisin , shall not be delivered without special commandment of the king. see the statutes merton c. . marlebridge cap. . and westminster . c. . there is also another assise , called assise of fresh force , and lies where a man is disseised of tenements which are devisable , as in the city of london , or other boroughs or towns that are franchises ; then the defendant shall come unto the court of the said town , and enter his plaint , and shall have a writ directed to the mayor or batleffs , &c. and thereupon shall pass a iury in manner of assise of novel disseisin . but he must enter his plaint within forty days , as it is said , or otherwise he shall be sent to the common law. and if the officers delay the execution , then the plaintiff shall have another writ to have execution , and a sicut alias , and a pluries , &c. see littleton cap. rents . assise de darrain presentment . assise de darrain presentment . see quare impedit . also there is an assise of nusance called assisa nocumenti . assise of the last presentation . assise de mortdancestor . assise de mortdancastor , look in the title of cosinage . association . association is a patent sent by the king , either of his own motion , or at the suit of the party plaintiff to the iustices of assise , to have other persons associated to them to take the assise : and upon this patent of association , the king will send his writ to the iustices of assise , by it commanding them to admit them that are so sent . if the king makes three iustices of assise , and afterwards one of them dies , there the king may make a patent of association to another , to associate him to the two , in place of him that is dead ; and a writ which shall be close , directed to the two iustices that are alive , to admit him . f. n. b. . assoil . assoil comes from the latin absolvere , and signifies to deliver or discharge a man of an excommunication ; and so it is used by stamford , in his plcas of the crown , lib. . cap . fol. . b. assumpsit . see nude contract . assumpsit is a voluntary promise made by word , by which a man assumes and takes upon him to perform or pay any thing to another . this word contains in it any verbal promise made upon consideration , which the civilians express by several words , according to the nature of the promise ; calling it sometimes pactum , promissionem , other times sponsionem , pollicitationem , or constitutum . attach . attach is a taking or apprehending by command or writ . there are some differences between an arrest and an attachment ; for an arrest proceeds out of the inferiour courts by precept , and attachment out of the superior courts by precept or writ . lamb. eiren. lib. . cap. . also an arrest lies only upon the body of a man , whereas an attachment is sometimes upon the goods only ; as kitch . fol. . b. saith , a man may attach a cow , and in another case , that a man may be attached by an hundred sheep ; and it is sometimes awarded upon the body and goods together at one and the same . attachment differs from a capias , for kit. fol. . b. hath these words , note that in a court of baron a man shall be attached by goods , and a capias shall not go out thence : by which it seems attachment is more general , extending to the taking of goods , where a capias extends to the taking of the body only . an attachment differs from a distress , as appears by kit. fol. . a. where he saith , process in court baron is summons attachment , and distress , which are process at the common law. there is also an attachment of priviledge : and this is twofold ; either giving power to apprehend a man in a place priviledged , or by vertue of an office or priviledge ; as to call another to that court to which he himself belongs , and in respect of which he is priviledged . new book of entries , fol. . a. and there is a process called a foreign attachment , which is used to attach the goods of foreigners found within any liberty or city , for a debt due to the party himself . and , by the custome of some places , a man may attach goods in the hands of a stranger : as if a. ows to b. ten pounds , and c owes a. another summe of money , b. may attach the goods of a. in the hands of c. to satisfie himself in part or all , as the debt is . also there is attachment of the forest , which is a court there held every forty days throughout the year : in which the verderors have not any authority . but to receive and inrol the attachment of offenders against vert and venison taken by the other officers , that they may be presented at the next iustice seat in eyre . manwood , part . pag. . cap. . attainder . attainder is a conviction of of any person of a crime or fault whereof he was not convict before : as if a man have committed felony , treason , or such like , and thereof is convicted , arraigned , and found guilty , and hath iudgment , then he is said to be attainted . and this may be two ways ; the one upon appearance , the other upon default . the attainder upon appearance is by confession , batrail , or verdict : the attainder upon default is by process until he be outlawed . attaint . attaint is a writ that lies where false verdict is given by twelve men , and iudgment given thereon , then the party against whom they have passed , shall have a writ against the twelve men , and when they are at issue , it shall be tried by twenty four iurors , and if the false verdict be found , the twelve men are attaint ; and then the iudgment shall be , that their meadows shall be eyred , their houses broken down , their woods turned up , and all their lands and tenements forfeited to the king : but if it pass against him that brought that attaint , he shall be imprisoned , and grievously ransomed at the kings will. see the statute hen. ● . cap. . attaint also is when iudgment is given in treason or felony . attendant . attendant is where one ows a duty or service to another , or as it were depends upon another : as if there be lord , mesne , and tenant , the tenant holds of the mesne by a peny , the mesne holds over by two pence , the mesne releases to the tenant all the right which he hath in the land , & the tenant dies ; his wife shall be endowed of the land and she shall be attendant to the heir of the third part of one peny , and not of the third part of two pence ; for she shall be endowed of the best possession of her husband . also where the wife is endowed by the gardian , she shall be attendant to the gardian and to the heir at his full age . attournment . attournment is , when one is tenant for term of life , and he in reversion or remainder grants his right or estate to another , then it behoves the tenant for life to agree thereto ; and this agreement is called an attournment . for if he in the reversion grant his estate and right to another , if the tenant for life attourn not , nothing passes by the grant . but if it be granted by fine in court of record , he shall be compelled to attourn . and see thereof after , title quid juris c ● mat , and in littl. lib. . cap. . atturney . atturney is one appointed by another man to do something in his stead , whom west hath defined thus , attorneys are such persons as by consent , commandment or request , take care of , see to , and undertake the charge of other mens business in their absence . and where in ancient time those of authority in courts have had it in their dispose , when they would permit men to appear or sue by any other than themselves as appears by f. n. b. . in the writ of dedimus potestatem đ attornato faciendo , where it is shewed , that men were driven to procure the writs , or letters patents of the king to appoint atturneys for them ; it is now provided by divers stat. that it shall be lawful so to do without any such circuity . and there is great diversity of writs in the table of the register , by which the king commands his iudges to admit of atturneys . by which means at last there were so many unskilful atturneys , and so many mischiefs by them , that an act was h. c. . ordained for their restraint , that the iustices should examine them , and put out the unskilful : and an. h. . c. . that there should be but a certain number of them in norfolk and suffolk . in what cases a man at this day may have an atturney , and in what not , see f. n. b. in the place before cited . atturney is either general , or special , atturney general , is he that is appointed to all our affairs or suits ; as the atturney general of the king. atturney general of the duke , cromp. . atturney special or particular is he that is imploi ● d in one or more things particularly specifyed . atturneys general are made two ways , either by the kings letters patents , or by our own appointment , before iustices in eyre in open court. see glan . lib. . cap. . brit. . audience court. audience court ( curia audientiae canturiensis ) is a court belonging to the archbishop of canterbury , of equal authority with the arches court , though inferior both in dignity and antiquity . of which you may read more in a book entituled , de antiquitate ecclesiae britannicae historia . audita querela . audita querela is a writ that lies where one is bound in a statute-merchant , statute-staple , or recognisance , or where iudgment is given against him for debt , and his body in execution thereupon ; then if he have a release , or other matter sufficient to be discharged of execution , but hath no day in court there to plead it , then he shall have this writ against him which hath recovered , or against his executors . auditor . auditor is an officer of the king , or some other great person , who , by yearly examining the accounts of all under-officers accountable , makes up a general book , that shews the difference between their receipts or charge , and their payments or allowances . see the statute h. . c. . there is also another sort of auditor assigned by any court wherein a defendant is adjudged to account , who take the account and put it in form into writing , and then it is inrolled , and the plaintiff pleads to it , and the defendant replies , if occasion be , and so go to issue upon divers points and particulars of the account . average . average is that service which the tenant owes his lord , to be done by the beasts of the tenant : and it seems to be deriv'd from the word averia , because it is the service which the tenants beasts perform for the lord by carriage or otherwise . this word also hath another signification , and is much used in the statute h. . c. . for a certain contribution , which merchants and others pay proportionably towards their losses that have their goods cast out in a tempest for the saving of the ship , or of the goods or lives of them that are therein . averment . averment is , where a man pleads a plea in abatement of the writ , or bar of the action , which he saith he is ready to prove as the court will award . this offer to prove the plea is called an averment . also there is a writ called a writ of averment , which is made out of any of the law courts of westminster-hall when the action is depending , when the sheriff upon a distringas returns small issues ; then the iudges of assise may cause it to be enquired by a iury if the sheriff could return more issues of the lands of the defendant , and if it be found he may , then he must return more issues to force the defendant to appear to the plaintiffs suite , or to do what the distringas required him to do . averpeny . averpeny is , to be quit of divers sums of money for the kings arrerages . augmentation . augmentation was the name of a court erected in the year of king henry the eighth . and the cause thereof was , that the king might be iustly used touching the profits of such religious houses and their lands as were given him by act of parliament the same year , not printed . for dissolving which court there was an act made in the parliament held in the first year of the reign of queen mary , sess . . cap. . which she afterward put in execution by her letters patents . the name of the court arises from this , that the revenues of the crown were so much augmented by the suppression of the said houses as the king reserved to the crown , and neither gave nor sold to others . but the office of augmentation remains to this day , wherein there are many records of great use and importance . aumone . aumone , or tenure in almoin , is tenure by divine service ; for so says britton fol. . tenure in aumone is land or tenements given for aims , whereof some service is reserved to the feoffer or donor . auncel weight . auncel weight was an ancient manner of weighing in england , by the hanging of balances or hooks at each end of a staff , which the party lifted up upon his finger , or with his hand , and so discerned the equality or difference of the things weighed . but this weight being subject to much deceit , many statutes were made to out it ; as the stat. of e. . c. . & e. . c. . & h. . c. . and others . and it was called auncel weight , as much as to say handsale weight . ancient or ancient demesne . ancient demesne is a certain tenure whereby all those manors that were in the hands of s. edward the confessor , and which he caused to be written in a book called dooms-day , sub titulo regis . and all the lands holden of the said manors , are held ; and the tenants shall not be impleaded out of the said manors ; and if they be , they may shew the matter , and abate the writ : but if they answer to the writ , and iudgment be given , then the lands become frank-free for ever , until that iudgment be reversed by writ of disceit . ra. ent. , . r. . h. . . e. . . also the tenants in ancient demesne are free of t ● ll for all things concerning their sustenance and husbandry in ancient demesne , and for such lands they shall not be put or impannelled upon any enquest . but all the lands in ancient demes ● e that are in the kings hands are frank-free , and pleadable at the common law. see more after in the title sokmans . avoir de pois . avoir de pois is as much as to say , true or just weight : and it signifies in our law two things ; first a kind of weight diverse from that which is called troy weight , which hath but ounces to the pound , whereas avoir de pois hath . secondly , it signifies such merchandises as are weighed by this weight , and not by troy weight . as you may see in the statute of york , . e. . & e. . c. , stat. . c. . and the statute of glocester , r. . c. . avowry . avowry is , where one takes a distress for rent or other thing , and the other sues replevin ; then he that hath taken it shall iustifie in his plea for what cause he took it : and if he took it in his own right he ought to shew that , and so avow the taking , and that is called his avowry . but if he took it in or for the right of another , then when he hath shewed the cause , he shall make conusance of the taking , as bailiff or servant to whom in whose right took it . avowterer . avowterer is an adulterer with whom a married woman continues in adultery , the crime is called avowtry , e. . . awme . awme is a vessel that contains galons of rhen ● sh wine , and is mentioned in the statute made jac. c. . b backberind thief . backberind thief is a thief taken with the manner , that is , having that found upon him ( being followed with a hue and cry ) which he hath stollen , whether it be money , linnen , wollen , or other stuff : but it is most properly said , when he is taken carrying those things that he hath stolen in a bundle or fardel upon his back . manwood in part . notes this for one of the circumstances or cases in which a forester may arrest the body of any offender against vert or venison in the forest ; which are , dog-draw , stable-stand , back-berind , and bloody-hand . badger . badger is as much as to say bagger , of the french word baggage , id est , sarcina : and it is used with us for one that is licenced to buy corn or other victuals in one place , and carry them to another ; and such a one is exempted in the statute made in the and of e. . cap. from the punishment of an ingrosser within that statute . bail. bail is , when a man is taken or arrested for felony , suspicion of felony , indicted of felony , or any such case , so that he is restrained of his liberty , and being by law bailable , offers surcties to those who have authority to bail him ; which sureties are bound for him to the kings use in a certain sum of money , or body for body , that he shall appear before the iustices of goal-delivery at the next sessions , &c. then upon the bonds of these sureties , as is aforesaid , he is bailed , that is set at liberty , until the day appointed for his appearance . manwood in the first part of his forest law , pag. . says , there is a great diversity between bail and mainprise ; for he that is mainprised is always said to be at large , and to go at his own liberty out of ward , after he is put to mainprise , until the day of his appearance , by reason of common summons or otherwise . but it is not so where a man is put to bail by four or two men , by my lord chief iustice in eyre of the forest , until a certain day : for there he is always accounted by the law to be in their ward and custody for the time ; and they may , if they will , hold him in ward or in prison till that time , or otherwise at their will : so that he that is bail'd ● hall not be said by the law to be at large , or at his own liberty . bailement . bailement is a delivery of things , whether writings , goods , or stuff , to another , sometimes to be delivered back to the bailor , that is , to him that so delivered it ; sometimes to the use of the bailee , that is , of him to whom it is delivered ; and sometimes also it is delivered to a third person . this delivery is called a bailment . bailiff . bailiff is an officer that belongs to a mannor , to order the husbandry , and hath authority to pay quit-rents issuing out of the mannor , fei ● trees , repair houses , make pales , hedges , distrain beasts doing hurt upon the ground , and divers such like . this officer is he whom the ancient saxons called a reeve , for the name bailiff was not then known amongst them , but came in with the normans , and is called in latin villicus . there are two other sorts of bailiffs , that is bailiffs errant , and bailiffs of franchises . bailiffs errant are those that the sheriff makes and appoints to go about the country to execute writs , to summon the county sessions , assises , and such like : bailiffs of franchises are those that are appointed by every lord within his liberty , to do such offices within his precincts , as the bailiff errant doth abroad in the county . this bailiff distrains for amerciaments in courts held within the mannor of which he is bailiff . but if such court is by prescription to be held within one month after a feast , and the steward holds it after the month , and in this court assess a fine or amerciament , and the bailiff distrains for it ; the party that is so distrained may have an action of trespass against the bailiff . bank. bank ( in french banque , i. mensa ) is most usually taken for a seat or bench of iudgment ; as bank le roy , the kings bench , bank de common pleas , the bench of common pleas , or common bench. kitchin fol. . called also in latin bancus regius , and bancus communium placitorum . cromp. jur. f. , & . kings bench. kings bench is a court at westminster where pleas of the crown , debts , trespasses , and personal actions , errors , audita querela's , &c. are determined . bankrupt . bankrupt , by the statute jac. c. . is thus described ; all and every such person and persons , using , or that shall use the trade of merchandise by way of bargaining , exchange , bartery , chevisance , or otherwise in gross , or by seeking his , her , or their trade of living by buying and selling , and being a subject born of this realm , or any of the kings dominions , or denizon , which at any time since the first day of this present parliament , or at any time hereafter shall depart the realm , or begin to keep his or her house or houses , or otherwise to absent him or her self , or take sanctuary , or suffer him or her self willingly to be arrested for any debt , or other thing not grown or due for money delivered , ware sold , or any other just or lawful cause , or good considerations or purposes , or hath or will suffer him or her self to be outlawed , or yield him or her self to prison , or willingly or fraudulently hath or shall procure him or her self to be arrested , or him or her goods , money or chattels , to be attached or sequestred , or depart from his or her dwelling-house , or make or cause to be made any fraudulent grant or conveyance of his , her , or their lands , tenements , goods , or chattels , to the intent or wherehy his , her , or their creditors , being subjects born , as aforesaid , shall or may be defeated or delayed for the recovery of their just and true debt , or being arrested for debt , shall after his or her arrest lie in prison six months or more upon that arrest or detention in prison for debt , and shall lie in prison six months upon such arrest or detention , shall be accounted and adjudged a bankrupt to all intents and purposes . see the stat. car. . ca. . banneret . banneret is a knight made in the field , with the ceremony of cutting off the point of his standard ' , and making it as it were a banner . and such are allowed to display their names in a banner in the kings army , as barons ● o. and that such were next unto barons in dignity , appears by the statute made in the year of r. . stat. . cap. . by which statute it seems , such bannerets were anciently called by summons to the parliament . banns . banns is a word common a ● d ordinary among the feudists , and signifies a proclamation , or any publick notice given of any thing . eract . lib. . tra . . cap. . makes mention of bannus regis for a proclamation or silence made by the crier before the meeting of the champions in a combat . but we use this word banns especially for the publication of matrimonial contracts in the church before marriage . bargain & sale. bargain and sale is , when a recompence is given by both the parties to the bargain : as if one bargain and sell his land to another for money , here the land is a recompence to him for the money , and the money is a recompence to the other for the land ; and this is a good contract and bargain . and by such a bargain & sale lands may pass without livery or seisin , if the bargain and sale be by deed indented , sealed and inrolled either in the county where the land lies , or in one of the kings courts of record at westminster , within six months next after the date of the same writing indented , according to the statute in that behalf made in the year of h. . cap. . barcary . barcary signifies a farm house as it seems , rast . ent. tit. assise en corps politique . barmote . barmote are divers courts not of record within the hundred of the peak in derby-shire for the regulation of groves , possessions , and trade of the myners and lead . barony . barony is a certain royal lordship where the kings writ tunneth not , and held of the king. rast . ent. tit. assise en office. . barr. barr is when the defendant in any action pleads a plea which is a sufficient answer , and destroys the action of the plaintiff for ever . and it may be divided into barr to common intendment , and barr special . barr to common intendment is an ordinary or general barr , which commonly disables the declaration or plea of the plaintiff . barr special is that which more than ordinary , and falls out in the case in question , upon some special circumstance of the fact : as an executor , being sued for the debt of his testator , pleads , that he hath nothing in his hands at the day of the writ purchased ; this is a good barr to common intendment , or at first sight : but yet the case may be such , that more goods may come to his hands after that time , which if the plaintiff can shew by way of replication , then , except the defendant hath a more special plea or barr to alledge , he is to be condemned in the action . see plow . fol. , . and in the same sense barr is also divided into barr material or special , and barr at large . kit. fol. . barr is also in regard of the effect divided into barr perpetual , and bar temporary . perpetual is that which overthows the action for ever : temporary is that which is good for the present , and may afterwards fail ; as , fully administred is a good barr , until it appear that more goods came afterward to the hands of the executors : which also holds for the heir , who in an action for his ancestors debt pleads nothing by discent . see brook tit. bar. nu . . barre fee. barr fee is a fee of twenty pence , which every prisoner , acquitted of felony , pays to the sheriff or goaler : of which see h. . . b. barretry . is a word used in pollices of insurance , and signifies dissentions and quarrels among the officers and seamen . barretor . barretor is a common mover , stirrer up , or maintainer of suits , quarrels , or parts , either in courts , or in country : in courts of record , and in the county , hundred , and other inferior courts : in country in three manners ; first , in disturbing the peace ; secondly , in taking or detaining the possessions of houses , lands , or goods , &c. that are in question or controversie , not only by force , but by subtilty and deceit , and more usually in suppression of truth and right ; thirdly , by false inventing and sowing of calumnies , rumors and reports , making discord and disquiet to rise between his neighbours . see more of this , co. lib. . fol. , . barter . barter seems to come of the french word barater , which signifies to circumvent , and this word is used with us for the exchange of wares for wares ▪ and it is mentioned in the statutes of r. . cap. . & eliz. cap. . base fee. to hold in fee base is , to hold at the will of the lord. and a base fee is also where any hath an estate in land so long as another shall have heirs of his body ; of which estate see plow . in walsingham's case fol. . a. bastard . bastard is he that is born of any woman not married , so that his father is not known by order of law , and therefore is reputed the child of the people . when special bastardy is alledged , it shall be tried by the country , and not by the bishop . but generally bastardy alledged shall be tried by certificate of the bishop . and if a woman be great with child by her husband , who dies , and she takes another husband , and after the child is born ; this child shall be esteemed the child of the first husband . but if she were privily with child at the time of the death of her first husband , then it shall be reputed the child of the second husband . but enquire farther , and see the opinion of thorp . e. . . also if a man take a wife who is great with child by another who was not her husband , and after the child is born within the espousals ; then it shall be deemed the child of the husband , though it were born but one day after the espousals solemnized . baston . baston is a french word , and signifies a staff ; but in our satutes it is taken for one of the warden of the fleet 's men , that attends the king's courts with a painted staff , for the taking of such to ward as are committed by the court , and for the attending upon such prisoners as go at large by licence . and so it is used in the statutes r. . ca. . & eliz. cap. . battail . battail is an ancient trial in our law , which the defendant in appeal of murther , robbery , or felony , may chuse , that is , to sight with the appellant , for proof whether he be culpable of the felony or not : which combat , if it fall out so well on the part of the defendant , that he doth vanquish the appellant , he shall go quit , and barr him of his appeal for ever . but if one be indicted of felony , and an appeal is brought upon the same indictment , there the defendant shall not wage battail . battail also may be in a writ of right , as in paramour's case , dyer . pla . , . where the champions chosen , and the battail awarded , and the champions were by sureties and oath to perform the battel at totchil in westminster ; but by default of appearance in the demandant nothing was done therein . batterie . batterie is an act that tends to the breach of the peace of the realm ; as when a man assaults and beats another , this is against the law and peace of the realm , which ordeins , that no man shall be his own iudge , or revenger of his own private wrong , but shall leave this to the censure of the law , which is always ready to hear and redress the rightfull and just complaints of every man ; wherefore he that is so beaten may either indict the other party who upon it shall be fined to the king , or have his action of trespass of assault and battery against him ( for every battery implies an assault ) and recover so much in costs and damages as the iury will give him by their verdict ; and the defendant shall upon the indictment be fined to the king , and the action of trespass will lie as well before as after the indiment . but if the plaintiff in such action makes the first assault , then the defendant shall go quit , and the plaintiff shall be amerced to the king for his false suit. and it is to be observed , that the record of the conviction of the party by indictment may serve for evidence in the action of trespass brought upon the same assault & battery . but notwithstanding that the party shall have a twofold punishment for such offence , that is , shall be punished to the king and to the party ; yet some there are who in respect of their natural , and others who in respect of their civil power and authrority over others , in a reasonable and moderate manner may chastise , correct and beat them , as the parents their child , the master his servant or apprentice , the goaler or his servant , the unruly prisoners , the officer him that is arrested , and will not otherwise obey . also a man may justifie the beating another in defence of his own person , or of the person of his wife , father , mother , or master . and a man may justifie the beating of another in defence of his goods , and in maintenance of iustice . but it is to be noted , that in these cases , if a man be not urged and constrained by a necessary cause , he cannot justifie the deed . beacons and sea-marks . are fires maintained on the coasts of the seas to prevent shipwracks and invasions , co. . inst . . ordered by the kings commissioners . bedell . bedell is derived from the french word bedeau , which significes a messenger or an apparitor of a court , that cites men to the court to appear and answer . and manw. c. . f. . a. says , that a bedell of a forest is an officer that goes through all the forest , like a sheriffs special bailiff . is also a collector of rents for the king. plo. com. , . benefice . benefice ( beneficium ) is generally taken for any ecclesiastical living , be it dignity or other : as an. r. . stat. . c. . where benefices are divided into elective , and of gift . besaile . besaile is a writ that lies for the heir ; where his great-grand-father was seised the day that he died , or died seised of land in fee-simple , and a stranger enters the day of the death of the great-grand-father , or abates after his death , the heir shall have his writ against such a disseisor or abator : of which see fitzh . n. b. . d. bewpleader . bewpleader is a writ upon the statute of marlebridge , and lies where the sheriff or other bailiff in his court will take a fine of the party plaintiff or defendant , to the end that he shall not plead fairly , &c. and the writ shall be directed to the sheriff himself , or to the bailiff or him that will demand this fine , & it is as a prohibition to him , commanding him that he shall not demand such , a fine , and may be sued by all the hundred , or by all the county , ( as it seems ) where he will demand such manner of fine of them . fitzh . n. b. . a. bigamie . bigamie was a counterplea objected when the prisoner demanded the benefit of the clergie , to wit , his book , as namely , that he who demands the priviledge of the clergie was married to such a woman at such a place , within such a diocess , and that she is dead , and that he hath married another woman within the same diocess , or within some other diocess , and so is bigamus . or if he have been but once married , then to say , that she whom he hath married is , or was a widow , that is , the relict of such a one , &c. which shall be tried by the bishop of the diocess where the marriages are alledged . and being so certified by the bishop , the prisoner shall lose the benefit of the clergy . but at this day , by force of the act made e. . ca. . this is no plea , but he may have his clergy notwithstanding . so is brook , titulo clergie , placito . to the same purpose . by-laws . by-laws are orders made in court-leets or court-barons by a common consent for the good of them that are the makers of them . and they are called by-laws , quasi birlaws , or bawrlaws , of the dutch word bawr , that is , a countrey-man ; and so bawrlaws or by-laws is as much as the laws of country-men . bilinguis . bilinguis in general is a man with a double tongue ; but is commonly used for that iury which passes between an english man and an alien , whereof part ought to be englishmen , and part strangers . and for this cause it is enacted by the statute of e. . cap. . that if any variance chance to be about the packing of wooll before the mayor of the staple , between the merchants or ministers of the same , thereupon , to try the truth thereof , enquest shall be taken : and if the one party and the other be denizons , it shall be tried by denizons ; or if the one party be denison , and the other alien , the half of the enquest or of the proof shall be denizons , and the other half aliens . bill . bill is all one with an obligation , saving that when it is in english , it is commonly called a bill , in latin an obligation . also a declaration in writing that expresses either the grievance and wrong which the complainant has suffered by the party complained of , or else some fault by him committed against some law or statute of the realm . by a bill we now ordinarily understand a single bond without a condition ; by an obligation , a bond with a penalty and condition . west . part . . symbol . tit . supplications , sect . . billa vera . billa vera is the indorsement of the grand inquest upon any presentment or indictment which they find to be probably true . blackmail . blackmail is a word used in the statute of eliz. c. . and signifies a certainty of money , corn , cattel , or other consideration , given by the poor people in the north of england , to men of great name and alliance in those parts , to be by them protected from such as usually rob and steal there . black rod. black rod is the huissier belonging to the most noble order of the garter ; so called of the black rod he carries in his hand . he is also huissier of the lords house in parliament . bloodwit . bloodwit is to be quit of amerciaments for blood-shedding ; and what pleas are holden in your court , you shall have the amerciaments thereof coming ; because ( wit ) in english , is misericordia in latin. bloody hand . bloody hand is the apprehension of a trespasser in the forest against venison , with his hands or other part bloody , though he be not found chasing or hunting . of which see manwood , part . c. . bockland . bockland in the saxons time was that we at this day cail free-hold land , or land held by charter ; and it was by that name distinguished from folkland , which was copy-hold land. bona notabilia . bona notabilia is where a man dies having goods to the value of five pound in divers diocesses , then the archbishop ought to grant administration ; and if any inferior bishop do grant it , it is void , h. . . ▪ h. . . dyer . bordlands . bordlands signifie the demesns which lords keep in their own hand ● for he maintenance of their bord or table . bracton l. . tract . . c. . num . . borow . borow ( which with us signifies an ancient town , as appears by littleton . sect . . ) is a word derived either of the french burg , id est pagus , or of the saxon borhoe , id est , ● ignus , for that anciently the neighbours of a town became pledges one for another : and from thence comes headborow , for the chief pledge or borhoe-aldere , with us now called the borow-holder or bursholder . borow english . borow english is a customary descent of lands or tenements in some places , whereby they come to the youngest son , or if the owner have no issue , to his youngest brother , as in edmunton , kitchin fol. . borowhead . borohead . see head-borow . bote. bote is an old word signifying help , succor , aid , or advantage , and is commonly joyned with another word , whose signification is doth augment ; as these , bridgebote , burgbote , firebote , hedgebote , plowbote , & divers other , for whose significations look in their proper titles . bottomry vulgo bomry . is when a master of a ship in case of necessity doth engage his ship for money for use of the ship. bribor . bribor ( fr. bribeur , i. mendicus ) seems to signifie one that pilfers other mans goods . anno e. . stat. . brief . brief ( breve ) signifies most properly in our law , the process that issues out of the chancery or other court , commanding the sheriff to summon or attach a. to answer to the suit of b. &c. but more largely it is taken for any precept of the king in writing under seal , issuing out of any court , whereby he commands any thing to be done for the furtherance of iustice and good order . and they are therefore called briefs , because they briessy comprehend the cause of the action . and some of them are original , and some judicial , as you may see at large in the register of writs . broadhalpeny . broadhalpeny in some copies broadhalfpeny , that is , to be quit of a certain custome exacted for setting up of tables or boards in fairs or markets ; and those that were freed by the kings charter of this custome had this word put in their letters patents : by reason whereof , at this day the freedom it self ( for brevity of speech ) is called broadhalfpeny . broker . broker seems to come of the french word broieur , id est , tritor , he that grinds or breaks a thing into small pieces . and the true trade of a broker , as it appears in the statute made jac. c. . is to beat , contrive , make and conclude bargains between merchants and tradesmen . but the word is now also appropriated to those that buy and sell old and broken apparel and houshold-stuff . brugbote . brugbote ( and in some copies bridgebote ) is , to be quit of giving aid to the repair of bridges . bull. bull is an instrument so called , granted by the bishop of rome , and sealed with a seal of lead , containing in it his decrees , commandments , or other acts , according to the nature of the thing for which it is granted . and these instruments have been heretofore used and of force in this land : but by the statute of h. . c. . it was e ● acted , that all bulls , breves , faculties , and dispensations of whatsoever name or nature that it was , had or obtained from the b. of rome , should be altogether void and of no effect . see rastal . . c. d. bullion . bullion comes from the french word billon , which is the place where gold is tryed . and so bullion is taken in the statutes made in . e. . stat . c. . and in h . stat. . c. . for the place whither gold or silver is brought to be tryed or exchanged . but bullion is also taken in the stat. e. . stat. . c. . for gold or silver in the mass or billet . burbreach . burbreach is , to be quit of trespasses done in city or borough against the peace . burgage . to hold in burgage is , to hold as the burgagers hold of the king , or of another lord , lands or tenements yielding him a certain rent yearly , or else where another man then burgers holds of any lord , lands or tenements in burgage , yielding him a certain rent . burghbote . burghbote is , to be quit of giving aid to make a burrough , castle , city , or walls thrown down . burgh english . burgh english or borough english , is a custome in some ancient borough , that if a man hath issue divers sons , and dies , yet the youngest son only shall inherit , and have all the lands and tenements that were his fathers , whereof he died seised within the same borough , by descent , as heir to his father by force of the custome of the same borough . this tenure is also of copyhold estates by custome of divers mannors . burglary . burglary is , when one breaks and enters into the house of another in the night , with felonious intent to rob or kill , or to do some other felony ; in which cases , although he carry away nothing , yet it is felony , for which he shall suffer death . otherwise it is if it be in the day-time , or that he break the house in the night , and enter no therein at that time . but if a servant conspire with other men to rob his master , and to that intent opens his masters doors and windows in the night for them , and they come into the house by that way ; this is burglary in the strangers ; and the servant is a thief , but no burglar . and this was the opinion of sir roger manwood , knight , lord chief baron of the cxchequer , at the quarter sessions holden at canterbury in jannary . eliz. buttlerage . is an old duty to the kings of this realm for wine imported by aliens . moor rep. . c cablish . cablish among the writers of the forest laws , signifies brushwood . manwood pag. . cromp. jur. fol. . cantred . cantred is as much in wales as an hundred in england ; for cantre in the british tongue signifies centum . the word is used an. . h. . c. . capacity . capacity is , when a man , or body politick or corporate is able to give or take lands or other things , or sue actions : as an alien born hath sufficient capacity to sue in any personal action ; but in a real action it is a good plea to say , he is an alien born , and pray if he shall be answered . dyer . f. . pla . . if a man enfeoff an alien and another man to the use of themselves , or , &c. it seems that the king shall have the moiety of the land for ever , by reason of the incapacity of the alien . dyer f. . pla . by the common law no man hath capacity to take tythes but spiritual persons , and the king , who is a person mixt : but a lay-man , who is not capable of taking tithes , was yet capable of discharge of tithes in the common law in his own land as well as a spiritual man. see coke l. . f. . cape . cape is a writ judicial touching plea of lands or tenements , so called ( as the most part of writs are ) of that word which in it self carries the especiallest intention or end thereof . and this writ is divided into grand cape and petit cape ; both which take hold of things immovable , and seem to differ in these points . first , because grand cape lies before apparance , and petit cape after . secondly , by the grand cape the tenant is summoned to answer to the default , and over to the demandant ; petit cape summons the tenant to answer to the default only , and therefore it is called petit cape in the old n. b. , . yet ingham saith , that it is not called petit cape because it is of small force , but because it is a little writ in words . this writ seems to contain in it a process , with the civilians called missio in possessionem ex primo & secundo decreto : for as the first decree seises the thing , and the second gives it from him that made the second default in his appearance ; so this capias seises the land , and also assigns over to the party a day of appearance , at which if he comes not in , the land is forfeited . yet there is difference between these two courses of the common and civil law ; for this missio in possessionem extends to touch as well goods movable as immovable , where a cape extends only to the immovable . secondly , in this , that the party being satisfied of his demand , the residue is restored to him that defaulted : but by the cape all is seised without restitution . thirdly , that is to the use of the party agent , the cape is to the use of the king. see bract. l. . tract . . c. . num . , , & , regist . judic . fol. . a. cape ad valentiam . cape ad valentiam is a writ or execution , and is thus defined in the old nat. brev. fo . . . this writ lies where the tenant is impleaded of certain lands , and he vouches to warranty another , against whom the summons ad warrantizan ● hath been awarded , and the vouchee comes not in at the day given : then if the demandant recover against the tenant , he shall have this writ against the vouchee , and shall recover so much in value of the vouchees land , if he have so much ; and if he hath not so much , then the tenant shall have execution by this writ of such lands and tenements as descend to him in fee-simple ; or if he purchase afterwards , the tenant shall have against him a resummons , and if he can say nothing , he shall recover the value . and know , that this writ lies before apparance . of these and their divers uses , see the table of the reg. jud . the word cape . capias . capias is of two sorts . the one before iudgment , called capias ad respondendum , in an action personal , if the sheriff return upon the first writ , nihil habet in balliva nostra . and the other is a writ of execution after iudgment , which also is of divers natures , which see in the title process . capite . capite is a tenure that holds immediately of the king , as of his crown , be it by knights service or soccage , and not of any honor , castle , or mannor ; and for this it is also called a tenure which holds meerly of the king. for as the crown is a corporation , a seignory in gross ; so the king who possesses the crown is in the eye of the law perpetually king , never in his minority , and dies no more than populus doth , whose authority he bears . see fitz , n. brē fol. . yet note , that a man may hold of the king. and yet not in capite , that is , not immediately of the crown in gross , but by means of some honor , castle , or manor belonging to the crown , whereof he holds his land. of this kitchin saith well , that a man may hold of the king by knight's service , and yet not in capite , because it may be he holds of some honour by knights service , that is in the kings hands , by descent from his ancestors , and not immediately of the king , as of his crown , fol. . with which agrees fitzh . nat. brē fol. . k. whose words are to this effect ; it plainly appears , that lands which are held of the king as of an honor , castle , or manor , are not held in capite of the king , because a writ of right iu this case shall be directed to the bailiff of the honor , castle , or manor , &c. but when the lands are held of the king as of his crown , then they are not held of an honor , castle , or manor , but meerly of the king as king , as of his crown , as of a seignory of it self in gross , and the chief of all other seigniories . and this tenure in capite is otherwise called tenure holding of the person of the king. dyer fol. . brook titulo tenures , num . , . and yet ki ● chen , fol. . saith , that a man may hold of the person of the king , and yet not in capite . his case is this ; if the king purchase a manor that j. s. holds , the tenant shall hold as he did before , and he shall not render livery , nor primer seisin , nor hold in capite . and if the king grants his manor to w. n. in fee , excepting the services of j. s. then j. s. holds as of the person of the king , and yet holds not in capite , but as he held before . by which it seems , that tenure holding of the person of the king , and tenure in capite , are two divers tenures . to take away which difference , it may be said , that this place of kitchen is to be taken as if he had said ; not in capite by knights service , but by socage , following the usual speech , because most commonly , where we speak of tenure in capite , we intend tenure by knight's service . see the stat. car. . c. . by which all tenures are now turned into free and common socage . cark . cark seems to be a quantity of wooll , whereof make a sarplar . h. . cap. . see sarplar . carno . carno is an immunity , as appears in cromp. jurisd . f. . where it is said , that the prior of malton made claim for him and his men , to be quit of all amerciaments within the forest , and also to be quit of escapes , and of all manner of gelds , and of foot-gelds , buckstall , trites , carno , and summage , &c. carrack or carrick . carrack , alias carrick , is a ship of burthen , and is so called of the italian word carico or carco , which signifies a burthen . this word is mentioned in the statute , jac. c. . carue of land. carue , or carucate of land is a certain quantity of land by which the subjects have been heretofore taxed : whereupon the tribute so levied is called caruage . bract. l. . c. . num . . lit. sect. . saith , that soca is the same with caruca , sc . a soke or plow . stow in his annals . p. . hath these words ; the same time h. the king took caruage , that is to say , two marks of silver for every knight's fee , to the marriage of his sister isabel to the empereur . by which it seems there was raised of every plow-land so much , and so consequently of every knight's free two marks of silver . rastal , in his exposition of words , saith , that caruage is to be quit , if the king shall tax all the land by plows , that is , a priviledge by which a man is freed from caruage . skene saith , that it contains as great a portion of land as may be eyred or tilled in a year and a day with one plow ; which also is called a hild , or hide of land . castellain . castellain is a keeper or captain , sometimes called a constable of a castle . bracton , l. . c. . cap. . in the same manner it is used an̄ e. . c. . in the book of feudis you shall find guastaldus to be of like signification , but more large , because it is also extended to those that have the custody of the king's mansion-houses , called courts , notwithstanding they are not places of defence or force . manwood part . of the laws of the forest , p. . saith , that there is an officer of the forest called castellanus . castle-guard . castle-guard is an imposition laid upon such of the kings subjects as dwell within a certain compass of any castle , to the maintenance of such as watch and ward it . mag. chart. cap. . & an . h. . ca. . it is sometimes used for the circuit it self which is inhabited by such as arc subject to this service . see chivalry . casu consimili . casu consimili is writ of entry , granted where the tenant by courtesie , or tenant for term of life or for the life of another , aliens in fee , or in tail , or for the life of another . and it hath this name , because the clerks of the chaucery have framed it by their common consent like the writ called in casu ꝓviso according to the authority given them by the stat. of west . . cap. . which wills , that as often as it shall happen in chancery , that in one case a writ is found , and in the like case a remedy is wanting , the clerks of the chancery should agree to make a writ , &c. and this writ is granted to him in reversion against the party to whom the said tenant so aliened to his prejudice , and in the life of the tenant . see more of this , f. n. b. fol. . casu proviso . casu proviso is given by the stat , of gloucester cap. . this writ lies where tenant in dower aliens in fee , or for life , or in tail , the land which she holds in dower ; there he that hath the reversion fee , or in tail , or for term of life , shall presently have this writ against the alienee , or him that is tenant of the free-hold of the land , and that during the life of the tenant in dower . f. n. b. . n. catals . catals or chatels comprehend all goods movable and immovable , except such as are in nature of free-hold , or parcel of it , as may be collected out of stamf. praer . cap. . and anno eliz. cap. . yet kitch : fol. . saith , that money is not to be accounted goods or catals , nor hawks , nor hounds , for they are ferae naturae . but it seems that money is not a chattel , because it is not in it self valuable , but rather in imagination than in deed. catals are either real or personal . catals real are either such as do not immediately appertain to the person , but to some other thing by way of dependance ; as a box with writings of laud , the body of a ward , the apples upon the tree , or the tree it self growing upon the ground . crom. fol. . b. or else such as are issuing out of some thing immovable to the person , as a lease for rent or term of years . personal may be so called in two respects . the one , because they belong immediately to the person of a man ; as a horse , &c. the other , because when they are wrongfully detained , we have no other means for their recovery but personal actions . the civilians comprehend these things , and also lands of all natures and tenures , under the word goods , which are by them divided into moveable and immovable . see bract. lib. . c. . num . , & . cepi corpus . cepi corpus is a return made by the sheriff , that , upon an exigend or other writ , he has taken the body of the party , f n. b. fol. . certificate . certificate is a writing made in some court , to give notice to another court of something done there ; as a certificate of the cause of attaint is a transcript briefly made by the clerks of the crown , clerks of the peace , or clerks of assise , to the court of kings bench , containing the tenor and effect of every indictment , outlawry , or conviction , and clerk attainted , made or declared in any other court. but note , that this certificate ought to be made by him that is the immediate officer to the court ; and therefore if the commissary or official of the bishop certifie an excommunication in bar of an action at the common law , this is not good , ( as was resolved in coke , lib. . fol. . ) but such excommunication ought to be certified by the bishop himself . yet the certificate of an excommunication by special commissioners delegates under their common seal was allowed , and held good enough in the common-place . dyer fol. . pla . . certification of assise . certification of assise of novel disseisin , &c. is a writ awarded to re-examine or review a matter passed hy assise before any iustices ; and is used when a man appears by his bailiff to an assise brought by another , and loses the day , and having some other matter to plead farther for himself , as a deed of release , or &c. which the bailiff did not plead , or might not plead for him , desires a better examination of the cause , either before the same or other iustices , and obtains letters pa ● ents , ( see their form f. n. b. . ) and then brings a writ to the sheriff to call the party for whom the assise had passed , and also the iury which was impannelled upon the same assise , before the said iustices , at a day and place certain . and it is called a certificate , because therein mention is made to the sheriff , that upon the parties complaint of the defective examination or doubts remaining yet upon the assise passed , the king hath directed his letters patents to the iustices for the better certifying of themselves , whether all the points of the said assise were duly examined or not . certiorari . certiorari is a writ that lies where a man is impleaded in a base court , that is of record , and he purposes that he may not have equal iustice there ; then upon a bill in the chancery , comprising some matter of conscience , he shall have this writ to remove all the record into the chancery , there to be determined by conscience , but if he prove not his bill , then the other party shall have a writ of procedendo , to send again the record into the base court , and there to be determined . and it lies in many other cases , to remove records for the king , as indictments and others . this writ is also granted out of the court of kings bench or common pleas to remove any action thither out of inferior courts of record ; and so the plaintiff must declare and proceed in the superior court. also to certifie original writs or proceedings out of any courts of record into the kings bench , where nullum tale recordum is pleaded . also upon writs of error of a iudgment in the common pleas , each party may have this writ to bring any of the proceedings into the kings bench upon alledging diminution , as appears , coke entr. , , . cro. , & . cessavit . cessavit is a writ that lies where my very tenant holds of me certain lands or tenements , yielding certain rent by the year , and the rent is behind for two years , and no sufficient distress may be found upon the land ; then i shall have this writ , by which i shall recover the land : but if the tenant come into the court before iudgment given , and tender the arrearges and damages , and find surety that he shall cease no more in payment of the said rent , i shall be compelled to take the arrerages and the damages , and then the tenant shall not lose the land. the heir may not maintain this writ for cessure made in the time of his ancestor : and it lies not but for annual service , as rent , and such other , and not for homage and fealty . also there is another writ called cessavit de cantaria , which lies where a man gives land to a house of religion , to find for the soul of him , his ancestors , and his heirs , yearly a candle or lamp in the church , or to say divine service , feed the poor , or other alms , or to do some other thing ; then if the said services be not done in two years , the donor or his heirs shall have this writ against whosoever holds the things given after such cessure . see the statute w. . cap. . cession . cession is , when an ecclesiastical person is created bishop , or when a parson of a parsonage takes another benefice without dispensation or otherwise not qualified , &c. in both cases their first benefices are become void , and are said to become void by cession . and to those that he had who was created bishop the king shall present for that time , whosoever is patron of them : and in the other case the patron may present . see e. . . & h. . . cestuy a que vie , & cestuy a que use . cestuy a que vie , is he for whose life another holds an estate ; and cestuy a que use is he who is a feoffee for the use of another . challenge . challenge is an exception taken either against persons or things . persons , as in an assise the iurors , or any one , or more of them ; or in case of felony , by the prisoner at the bar against things , as a declaration . old. n. b. . challenge made to the jurors is either made to the array , or to the polls . challenge to the array is , where exception is taken to the whole number , as impannelled partially : challenge to or by the poll is , where exception is taken to any one or more , as not indifferent . challenge to the iurors is also divided into challenge principal , and challenge for cause , that is , upon cause or reason . challenge principal , or peremptory , is that which the law allows without cause alledged , or examination : as a prisoner at the bar , arraigned upon felony , may peremptorily challenge to the number of twenty , one after another , of the iury impanuelled upon him , not alledging any cause at all , but his own dislike , and they shall be discharged , and new put into their places : and this is in favor of life . but in the case of high treason no peremptory challenge is allowed . see h. . cap. . and a difference may be observed between challenge principal and challenge peremptory , because challenge peremptory seems only to be used in matters criminal , and meerly without any cause alledged , more than only the prisoner's fansie , stamf. pl. cor. fol. . and principal for the most part in civil actions , and with the namning of some exception , which being found true the law presently allows . as for example , if any party saith that one of the iurors is the son , brother , cousin , or tenant to the other party , or married to his daughter , this is a good and strong exception , if it be true , without farther examination of the credit of the party challenged . and of how large extent this challenge of kindred is , does well appear in plow . fol. . also in the plea of the death of any man , and in every action real , and also in every action personal , where the debt or damages amounts to marks , it is a good challenge to any of the iury impanelled , that he cannot dispend forty shillings by the year of his own free-hold , an. h. . cap. . challenge upon reason or cause is , when the party alledges any such exception against one or more of the iurors , which is not forthwith sufficient upon acknowledgment of the truth , thereof , but rather arbitrable , and consiverable by the rest of the iurors ; as if the son of the iuror had married the daughter of the adverse party . this challenge by cause seems to be termed by kitch . fo . . challenge for favor ; or rather challenge for favor is there said to be a species of challenge by cause : where you may also read what challenges are commonly accounted for principal , and what not . chamberdekins . chamberdekins are irish beggars , which by the statute of h. . c. . were by a certain time , within the said statute limited , to avoid this land. champertie . champertie is a writ that lies where two men are impleading , and one gives the half or part of a thing in plea to a stranger , to maintain him against the other ; then the party grieved shall have this writ against the stranger . and it seems that this hath been an ancient grievance in our realm : for notwithstanding divers statutes , and a form of a writ framed unto them , yet anno e. . c. . it was enacted that where the former statutes provided redresse for this only in the king's bench , which then followed the court ; it should be lawful for the iustices of the common pleas likewise and iustices of assise in their circuits , to enquire , hear and determine these and such cases , as well at the kings suit , as at the suit of the party . also it was ordained by the statute of h. . ( which was confirmed by the statute of h. . c. . ) that iustices of peace at their quarter sessions should have authority to enquire , as well by the oaths of men , as by the information given to them by any person or persons , of the defaults , contempts and offences committed against the laws and statutes made and provided touching champerty , maintenance , &c. and to hear and determine the said faults and offences . champertors are they that move pleas and suits , or cause to be moved by their own or oothers procurement , and sue them at their own costs , to have part of the lands or gains in variance . see the stat. articuli suꝑ chartas , c. . chance-medley . chance medley is , when a man without any evil intent doth a lawful thing , or that is not prohibited by law , and yet another is slain or comes to his death thereby : as if a man casts a stone , which hits a man or woman , who after dies thereof ; or if a man shoots an arrow , and another that passes by is killed , and such like ; this manner of killing is man-slaughter by misadventure , or chance-medley , for which the offendor shall have his pardon of course , as appears by the statute of e. . c. . and he shall forfeit his goods in such manner as he that kills a man in his own defence . but in this case it is to be considered , whether he that commits this man-slaughter by chance-medley was in doing a lawfull thing : for if the act was unlawfull , as to fight at barriers , or run at tilt without the kings commandment , or cast stones in a high-way where men usually pass , or shoot arrows in a market-place , or such like , whereby a man is killed ; in all these cases it is felony at least , that is , manssaughter , if not murther ; for the offendor being doing an unlawful act of his own will , the law shall construe his meaning and will herein by the success of the act . as if two are fighting together , and a third man comes to part them , and is killed by one of the two , without any malice forethought , or evil intent in him that killed the man , yet this is murther in him , and not man-slaughter by chance-medley or misadventure , because they two that fought together were in doing an unlawful act . and if they were met with prepensed malice , the one intending to kill the other , then it is murther in them both . chancery . chancery is a court of law at westminster for suits for and against attorneys , clerks , and officers of this court , this part of it and also the intelments of deeds , & patents , is of record . and there is also a court for equity , and their proceedings therein are entred in english , and the lord chancellor , or keeper of the great seal , and master of the rolls are iudges , and the writs are returnable there coram rege in cancellaria . co. . instit . . chapiter . chapiter is a summary or content of all such matters as are enquirable before iustices in eyre , iustices of assise , or of the peace in their sessions : so it is used e. . c. . in these words , and that no clerk of any iustice , escheator , or commissioner in eyre , shall take any thing for delivery of chapiters , but only clerks of iustices in their circuits ; and likewise e. . c. . in these words , and when the time comes , the sheriff shall certifie the chapiters before the iustices in eyre how many writs he hath . also britton uses it in the same signification , cap. . and at this day chapiters are called articles , for the most part , and are delivered as well by the mouth of the iustice in his charge , as by the clerks in writing , to the enquest , where in ancient time they were ( after an exhortation given by the iustices , for the observation of the laws of the kings peace ) first read distinctly and openly in the full court , and then delivered in writing to the grand enquest . an example of these chapiters there is in the book of assises fol. . pla . . chaplain . chaplain is he that performs divine service in a chappel , and therefore is commonly used for him that depends upon the king or other man of worth , for the instruction of him and his family , the reading of prayers , and preaching in his private house , where usually they have a chappel for that purpose . and for that they are retained by letters under the seal of their patron , and thereby by intendment are to be resident with them , the law hath given liberty for their non-residency upon their benefices . if an earl or baron retains a chaplain , and before his advancement is attainted of treason , there the retainer is determined , and after the attainder such chaplain cannot take a second benefice , because he that is attainted is by his attainder a dead person in law. what and how many chaplains noblemen and others may respectively retain , the statute of h. . c. . doth well declare . the wife of a baron during the coverture cannot retain a chaplain ; yet when a baronnesse dowager retains one or two , according to the proviso of the said statute , the retainer is the principal matter , and as long as the retainer is in force , and the baronness continues a baronness , the chaplains may well take two benefices by the express letter of the statute ; for it suffices , if at the time of the retainer the baronness were a widow . and herein this rule is to be observed of a woman that attains nobility by marriage , as by marriage of a duke , earl , or baron , &c. for in such case , if she afterward marry under the degree of nobility , by such marriage she loses the dignity she had attained , and after such latter marriage the power to retain a chaplain is determined . but otherwise it is where a woman is noble by discent , for there her retainer before or after the marriage with one that is not noble shall be in force , and is not countermanded by the marriage , nor determined by her taking a husband under her degree . coke lib . fol. , . chapter . chapter in latine is defined to be an assembly of clerks in a church-cathedral , conventual , regular , or collegiate ; and in another signification , a place wherein the members of that community treat of their common affairs : and it hath other significations which appertain not to our purpose . it may be said that this collegiate company is termed chapter metaphorically , the word originally implying a little head ; for this company or corporation is as a head , not only to rule and govern the diocesse in the vacation of the bishoprick , but also in many things to advise the bishop when the see is full . charge . charge is where a man grants a rent issuing out of his land , and that , if the rent be behind , it shall be lawfull for him , his heirs and assigns , to distrain till the rent be paid : this is called a rent-charge . but if one grant a rent-charge out of the land of another , though after he purchase the land , yet the grant is void . charter land . charter-land is such as a man holds by charter , that is , by evidence in writing , which otherwise is called free-hold , copyhold-lands before the conquest were by the saxons called folkland , and the charter-lands bockland . and lambert in the explication of saxon words , saith , that this land was held with more easie and commodious conditions then folkland and copyhold-land held without writing : and his reason is , because it is a free and absolute inheritance ; whereas land without writing is charged with payment and bondage ; so that for the most part noblemen and persons of quality possess the former , and rusticks the other . the first we call free-hold and by charter ; the other , land at the will of the lord. if a riot , rout , or vnlawful assembly be committed , then by the statute of h. . c. . twenty men inhabiting within the county where the riot , &c. is made ( whereof every of them shall have lands and tenements within the same county to the yearly value of twenty shillings of charter-hold or free-hold , or twenty six shillings of copyhold ) shall make enquiry thereof . charter-party . charter-party is an indenture of covenants and agreements made between merchants or mariners concerning their sea-affairs : and of this you may read in the statute , now out of use , made h. . cap. . charters . charters of lands are writings , deeds , evidences , and instruments , made from one man to another , upon some estate conveyed or passed between them of lands or tenements , shewing the names , place , and quantity of the land , the estate , time , and manner of the doing thereof , the parties to the estate , delivered and taken , the witnesses present at the same , with other circumstances . chartis reddendis . chartis reddendis is a writ which lies against him that has charters of feoffment delivered him to be kept , and refuses to deliver them . old nat. brev. fol. . reg. orig . fol. . chase . chase is taken two wayes : first , to drive cattel , as to chase a distress to a castle ; secondly , for a receit for deer and beasts of the forest : and it is of a middle nature between a forest and a park , being commonly less then a forest , and not endued with so many liberties , as with courts of attachment , swainmore , and justice seat ; and yet of a larger compass , and having greater diversity of keepers and game then a park . crompt . in his book of iurisdictions , fol. . saith , that a forest may not be in the hands of a subject , but it presently looses the name , and becomes a chase ; and yet fol. . he saith , that a subject may be lord and owner of a forest ; which though they seem contradictory , yet are both his sayings in some sense true : for the king may give or alienate a forest to a subject , yet so , that when it is once in the subject , it loses the true property of a forest , because the courts of swainmote , justice seat and attachment , presently vanish , none being able to make a lord chief iustice in eyre of the forest but the king , as manwood hath well shewed , as his book of forest laws , cap. . & . yet it may be granted in such large manner , that there may be attachment and swainmote , and a court equivalent to a justice seat , as appears by him in the same chapter , numb . . so that a chase differs from a forest in this , because it may be in the hands of a subject , which a forest in its proper nature cannot be ; and from a park in this , that it is not inclosed , and hath not only a larger compasse , and more store of game , but of keepers also and overseers . see forest . chatels . chatels . see catals . chauntry . chauntry is a church or chappel indued with lands or other yearly revenues for the maintenance of one or more priests , to sing mass daily for the souls of the donors , and such others as they appoint . and of these you may read in the statutes made h. . c. . & e. . cap. . chevage . chevage is a summe of money paid by villains to their lords in acknowledgement of their slavery , which bracton lib. . cap. . thus defines ; chevagium dicitur recognitio in signum subjectionis & dominil de capre suo . it seems also to be used for a sum of money given by one man to another of power and might for his avowment , maintenance and protection , as to their head and leader . lambert writes it chivage , or rather chiefage . chievisance . chevisance comes from the french word chevir , that is , to come to the end or head of a business . and because the perfecting of a bargaine is the drawing of the matter to the head , this word chevisance is used for bargaining in the statutes of h. . cap. . & eliz cap. , & . childwit . childwit , that is , that you may take a fine of your bondwoman , defiled and gotten with child without your licence . chimin . chimin is the high-way where every man goes , which is called via regia ; and yet the king hath no other thing there but the passage for him and his people ; for the free-hold is in the lord of the soile , and the profits growing there , as trees and other things . and it is divided into two sorts , the king's way , of which is spoken before , and a private way , or private passage ; and this is the way by which one man or more have liberty to pass , either by prescription , or by writing , through the land of another : and this is divided into a way in gross , and a way appendant , kitch . fol. . chimin in gross is that way which a man holds principally and solely in it self : chimin appendant is that which a man hath adjoyned to some other thing , as appertaining thereunto ; for example , if a man hires a close or pasture , and hath a covenant for ingress and egress , to and from the said close , through the ground of some other , through which otherwise he might not pass . or a way in gross may he that which the civilians call personal ; as when one covenants for a way through the ground of another man for himself and his heirs : a way appendant on the other side , may be that which they call real , as when a man purchases a way through the ground of another man , for such as do or shall dwe ● in this or that house , or that are the owners of such a manor , for ever . chiminage . chiminage is a toll paid for a mans passage through a forest , to the disquiet of the wild beasts of the forest . chirographer . chirographer is he that in the common-bench-office , ingrosses fines acknowledged in that court into a perpetual record , ( after they are acknowledged and fully passed by those officers by whom they are first examined ) and that writes and delivers the indentures , one for the buyer , and another for him that sells , and makes another indented piece , containing also the effect of the fine , which he delivers over to the custos brevium , which is called the foot of the fine . the chirographer also , or his deputy , proclaims all the fines in the court every term , according to the statutes , and then repairing to the office of the custos brevium , there endorses the proclamations upon the backside of the foot thereof , and always keeps the writ of covenant , as also the note of the fine . chivage . chivage . see chevage . chivalrie . chivalrie is a tenure of land by knights service : for the better understanding whereof it is to be known , that there is no land but is held mediately or immediately of the crown by some service or other ; and therefore all our free-holds that are to us and our heirs are called fees , as proceeding from the bounty of the king for some small yearly rent , and the performance of such services as originally were imposed upon the land at the githing thereof : for as the king gave to his nobles , his immediate tenants , great possessions for ever , to hold of him for such or such rent and service ; so they again in time parcelled out , to such as pleased them , their lands so received of the kings bounty , for such rents and services as to them seemed good . and the services are all by littleton divided into two sorts , chivalry and socage : the one material and military ; the other clownish and rustical . chivalry therefore is a tenure whereby the tenant is bound to perform some noble or military office to his lord ; and is of two kinds , either regal , that is , such as may be held onely of the king , or such as may also be held of a common person as well as of the king , that which may be held onely of the king , is properly called s ● rvitium or sergeantia , and is also again divided into grand and petit serjeanty grand serjeanty is that , where a man holds lands of the king by service which he ought to do in his own person , as to carry the kings banner or his spear , to lead his army , to be his marshal , to blow a horn when he sees his enemies invade the land , or to find an armed man to fight within the four seas , or to do it himself , or to carry the kings sword before him at his coronation , or at that day to be his sewer . carver , butler , or chamverlain . petit serjeanty is , where a man holds land of the king to pay him yearly a bow , a sword , a dagger , a knife , a spear , a pair of gloves of maile , a pair of spurs of gold , or to give such other small things concerning the war. chivalrie that may hold of a common person as well as of the king is called escuage , service of the shield ; and this is either uncertain , or certain . escurage uncertain is also of two kinds ; first , where the tenant by his tenure is bound to follow his lord going in person to the kings wars against his enemies , either himself , or to send a sufficient man in his place , there to be maintained at his costs so many dayes as were agreed upon between the lord and his tenant at the granting of the fee. and the dayes of such service seem to have been rated by the quantity of the land so held : as if it extends to a whole knight's fee , then the tenant was bound so to attend his lord days ; and a knight's fee was so much land as in those days was accounted a sufficient living for a knight , and this was acres , by the opinion of some , or eight hundred , as others think ; or fifteen pounds by the year . cambden's brit. fol. . if the land extends but to the moiety of a knight's fee , then the tenant is bound to follow his lord but days ; if a fourth part , then days . fitzh . nat. brev fol. . c. & . c e. the other kind of escuage uncertain is called castleward , where the tenant by his land is bound , either by himself or some other , to defend a castle as often as it shall come to his turn . escuage certain is , where the tenant is assessed to a certain summe of money to be paid instead of such uncertain service ; as that a man shall pay yearly for a knights fee shillings , for the half shillings , or any such rate . and this service , because it is drawn to a certain rent , comes to be of a mixt nature , not meerly socage , for it smells not of the plow ; and yet socage in effect , being now neither personal service , nor incertain . chivalry hath other conditions annexed thereunto : as homage , fealty , wardship , relief , and marriage , bract. l. . c. . and what they signifie see in their several places . chivalry is either general , or special , dyer fol. . plac . . general seems to be , where it is only said in the feoffment , that the tenant holds by knights service , without any specification of sergeanty , escuage , &c. special is that which is declared particularly what kind of knights service he holds by . see the statute car. . c. thing in action . thing in action is , when a man hath cause , or may bring an action for some duty due to him ; as an action of debt upon an obligation , annuity , or rent , action of covenant , or ward , trespasse of goods taken away , beating , or such like : and because they are things whereof a man is not possessed , but for recovery of them is driven to his action , they are called things in action . and those things in action that are certain , the king may grant , and the grantee may have an action for them in his own name only : but a common person cannot grant his thing in action , nor the king himself his thing in action , which is uncertain , as trespass , and such like . but of late times it is used in london , that merchants and others there , who have bills without seals for payment of money assign them to others , who bring actions in their own names . churchesset . churchesset is a word whereof flet. l. . c. . in the end thus writes : it signifies a certain measure of wheat , which in times past every man on st. martins day gave to holy church , as well in the time of the britains as of the english . yet many great persons , after the coming of the romans , gave that contribution , according to the ancient law of moses , in the name of the first-fruits , as in the work of king kanutus sent unto the pope is contained ; in which they call the contribution chirchsed , as one would say , church-seed . church-wardens . church-wardens are officers yearly chosen by the consent of the minister and the parishioners , according to the custom of every several place , to see to the church , church-yard , and such things as belong to both , and to observe the behaviour of the parishioners , for such crimes as appertain to the jurisdiction or censure of the ecclesiastical court. these are a kind of corporation , and are enabled by law to sue for any thing belonging to their church , or the poor of the parish . see lambert's duty of church-wardens . cinque port. cinque port are five haven-towns , that is , hastings , romney , hythe , dover , and sandwich , to which have been granted long time since many liverties ( which other port-towns haue not , ) and that first in the time of king edward the confessor ; which have been increased since , and that chiefly in the days of the three edwards , the first , the second , and third , as appears in dooms-day book , and other old monuments , too long to recite . circuity of action . circuity of action is , when an action is rightfully brought for a duty , but yet about the bush , as it were , for that it might as well have been otherwise answered and determined , and the suit saved : and because the same action was more then needful , it is called circuity of action . as if a man grant a rent-charge of x. li . out of his mannor of dale , and after the grantee disseises the grantor of the same manor , and he brings an assise , and recovers the land , and xxli . damages , which xx.li. being paid , the grantee of the rent sues his action for x. li . of his rent due during the time of the disseisin , which if no disseisin had been he must have had : this is called circuity of action , because it might have been more shortly answered ; for whereas the grantor shall receive xx.li. damages , and pay x. li . rent , he may haue received but the x. li . only for the damages , and the grantee might have cut off and kept back the other x. li . in his hands , by way of deteiner for his rent , and so thereby might have saved his action . circumstantibus . circumstantibus is a word of art , signifying the supply and making up the number of iurors , if any impannelled do not appear , or are challenged by either party , by adding to them as many others of those that are present and standers by . see h. . c. . & el. c. . city . city is such a town corporate as hath a bishop and a cathedral church , whereof such words are found : the same place is called urbs , civitas , and oppidum . it is called civitas in regard it is governed in justice and order of magistracy ; oppidum for that there are therein great plenty of inhabitants ; and urbs , because it is in due form begirt about with walls . but that place is commonly called civitas which hath a bishop . yet crompton in his jurisdictions reckons up all the cities , and leaves out ely , although it hath a bishop and a cathedral church , and puts in westminster , notwithstanding it now hath no bishop . and el. . westminster is called a city : and anno ejusd . c. ( of statutes not printed ) westminster is alternative called a city or borough . it appears by the stat. h. . c. . that then there was a bishop of westm . cassanaeus writes , that france hath within its territories cities , and gives this reason , because there are so many sees of archbishops and bishops . clack . clack , as to clack , force , and bard wool , h . cap. . whereof the first , viz. to clack wool is , to cut off the mark of the sheep , which makes it to weigh lesse , and so to pay the less custome to the king : to force wool is , to clip the upper and most hairy part of it : to bard or beard wool is , to cut the head and neck from the other part of the fleece . claim . claim is a challenge by any man of the property or ownership of a thing which he hath not in possession , but is withholden from him wrongfully : and the party that so makes this claim shall have thereby a great advantage ; for by it , in some cases , he may avoid a discent of lands ; and by it , in other cases , he may save his title , which otherwise should be lost . as if a man be disseised , and the disseisee makes a continual claim , that is , if he claim the lands whereof he is disseised within the year and day before the death of the disseisor , then may he enter , notwithstanding the discent . also , if a fine be levied of another mans land , then he that hath right thereunto ought to make his claim within five years after the proclamation had , made , or certified , by the statute of hen. . cap . but a stranger that hath no right cannot of his own head enter , or make claim in the name of him that hath right to avoid the fine within the five years , without commandment precedent or assent subsequent : yet gardian for education , or in socage , may enter or make claim in the name of the infant that hath right to enter or make claim ; and this shall help the estate of the infant , without commandment or assent , for there is privity between them . claim of libertie . is a suit or petition to the king , in the court of exchequer to have liberties and franchises confirmed there by the kings attorney general , co. ent. . clergie . clergie is taken divers wayes ; sometimes for the whole number of religious men , sometimes for a plea to an indictment or appeal : and is defined to be an ancient liberty of the church , confirmed in divers parliaments . and it is , when a man is arraigned of felony , or such like , before a temporal iudge , &c. and the prisoner prayes his clergy , that is , to have his book , which in ancient time was as much as if he desired to be dismissed from the temporal iudge , and to be d●livered to the ordinary to purge himself of the same offence . and then the iudge shall command the ordinary to trie if he can read as a clerke , in such a book and place as the iudge shall appoint . and if the ordinary certifie the iudge that he can , then the prisoner shall not have judgment to lose his life . but this libertie of the clergie is restrained by the statute of el. c. . an . ejusd . c. . an . ejusd . c. , , . & ejusd . cap. . & . ejusd . cap. & ejusd . cap. . & ejusd . cap. , & . see crompt . just . of peace , fo . , &c. and stamf. lib. . cap. . and the stat. of eliz. cap. . by which clerks are not to be delivered to their ordinaries to be purged , but now every man , though not within orders , is put to read at the bar , being found guilty , and convicted of such felony , for which this benefit is still granted , and so burned in the hand , and set free the first time , if the ordinary's comissary or deputy saith , he readeth as a clerk ; or otherwise he suffers death for his transgression . clerk. clerk hath two significations , one as it is the title of him that belongs to the holy ministery of the church , that is , in these dayes , either minister or deacon of what other degree or dignity soever ; although that in ancient time not only sacerdotes and diaconi , but also subdiaconi , can ● ores , acoluthi , exorcistae and ostiarii were within this account , as they are at this day where the canon law hath full power . and in this signification a clerk is either religious , ( otherwise called regular ) or secular . h. . cap. . the other signification of this word denotes such as by their function or course of life use their pen in any court , or otherwise ; as namely the clerk of the rolls of parliament , clerks of the chancery , and such like . clerico admittendo . clerico admittendo is a writ directed to the bishop for the admitting a clerk to a benefice upon a ne admittas tried and found for the party that procures the writ . beg. orig . f. . clerk attaint . clerk attaint is he who prayes his clergy after judgment given upon him of the felony , and hath his clergy allowed ; such a clerk might not make his purgation . clerk convict . clerk convict is he who prayes his clergy before judgment given upon him of the felony , and hath his clergy granted , such a clerk might make his purgation . note , that this purgation was made when he was dismissed to the ordinary , there to be tried by the enquest of clerks : and therefore now by the stat. of eliz. cap. . no such is put to the ordinary . closh . closh is an unlawfull game forbidden by the statute made in the year of e. cap. . and it is inhibited also by the statute of h. . cap. . but there it is more properly called clash ; for it is the throwing of a bowl at nine pins of wood or nine shank-bones of an oxe or horse : and it is now ordinarily called kailes , or nine-pins . coadjutor . coadjutor to the disseisin is he who with another disseises one of his free-hold to the use of the other , and he shall be punished as a disseisor ; but he is not such a disseisor who gaines the freehold , but the free-hold vests and is wholly in him to whose use the disseisin was committed , as appears in littleton . l. . cap. of jointenants . cocket . cocket is a seal pertaining to the king's custome-house , and it signifies also a scrowl of parchment , sealed and delivered by the officers of the custome-house to merchants , as a warrant that their merchandize are customed . this word is used in the old statutes now expired , of e. . stat. . c. . & h. . cap. . codicil . codicil is the will or testament of a man concerning that which he would have done after his death without the appointing of an executor . or it is an addition or supplement added unto a will or testament after the finishing of it , for the supply of something which the testator had forgotten , or to help some defect in the will. of this you may read more in swinbourn's wills and testaments , part . . sect. . num . , , &c. coin. coin is a word collective , which contains in it all manner of the several stamps & pourtraitures of money . and this is one of the royal prerogatives belonging to every prince , that he alone in his own dominions may order & dispose the quantity , and fashions of his coin. and though this is the sinew of all traffick and commerce , yet the coin of one king is not currant in the realms of another king , commonly , unless at great loss . if a man binds himself to pay an hundred pounds of lawfull money of england to another , and at the day of payment some of the money chances to be spanish or french coin , there the obligation is well performed , if those coins are by proclamation made currant money of england : for the king by his absolute prerogative may make any forein coin lawful money of england at his pleasure by his proclamation . in case where a man is to pay rent to his lessor upon condition of re-entry , and the lessee pays the rent to the lessor , and he receives it , and puts it in his purse , and afterwards upon review of it at the same time he finds that he hath received some counterfeit pieces , aud thereupon refuses to take away the money , but re-enters for the condition broken ; there his entry is not lawful , for when he hath accepted the money , this was at his peril , and after this allowance he shall not take exception to any of it . collateral . collateral is that which comes in , or adheres to the side of any thing ; as collateral assurance is that which is made over and beside the deed it self : for example , if a man covenants with another , and enters bond for the performance , the bond is called collateral assurance , because it is external , and without the nature and essence of the covenant . and crompton , fol. . saith , that to be subject to feeding the kings deer is collateral to the soil within the forest . in like manner we may say , that the liberty to pitch sheds or standing for a fair in the soil of another man is collateral to the land . the private woods of a common person within the forest cannot be cut down without the kings license , for it is a prerogative collateral to the soil . man. part . . pag. . collateral warranty ; see tit . warrantie . collation . collation is properly the bestowing of a benefice by the bishop , that hath it in his own gift or patronage ; and differs from institution in this , for that institution into a benefice is performed by the bishop at the motion and presentation of another , who is patron of the same church , or hath the patrons right for that time : yet collation is used for presentation in e. . stat. . and there is a writ in the regist . . b. called de collatione facta uni post mortem alterius &c. directed by the iustices of the common pleas , commanding them to direct their writ to the bishop , for the admitting a clerk in the place of another presented by the king , who during the suit between the king and the bishops clerk deceased ; for judgment once passed for the kings clerk , and he dying before he be admitted , the king may give his presentation to another . collusion . collusion is , where an action is brought against another by his own agreement , if the plaintiff recover , then such recovery is called by collusion . and in some cases the collusion shall be enquired of , as in quare impedit , and assise , and such like , which any corporation or body politick brings against another , to the intent to have the land or advowson whereof the writ is brought in mortmain . but in avowry , nor in any action personal , the collusion shall not be inquired . see the stat. of westm . . c. . which gives the quale jus and enquiry in such cases . colour . colour is feigned matter , which the defendant or tenant uses in his barre when an action of trespass or an assise is brought against him , in which he gives the demandant or plaintiff a shew at first sight that he hath good cause of action , where in truth it is no just cause , but only a colour and face of a cause : and it is used to the intent that the determination of the action should be by the iudges , and not by an ignorant iury of twelve men . and therefore a colour ought to be a matter in law doubtfull to the common people . as for example , a. brings and assise of land against b. and b. saith he himself did let the same land to one c. for term of life , and afterward did grant the reversion to a. the demandant , and after c. the tenant for term of life died , after whose decease , a. the demandant , claiming the reversion by force of the grant , ( whereto c. the tenant for life did never atturn ) entred , upon whom b. entred , against whom a. for that entry brings this assise , &c. this is a good colour , because the common people think the land will pass by the grant without atturnment , where indeed it will not pass , &c. also in an action of trespass colour must be given , of which there are an infinite number , one forexample : in an action of trespass for taking away the plaintiffs beasts , the defendant saith , that before the plaintiff had any thing in them , he himself was possessed of them as of his proper goods , and delivered them to a. b. to deliver them to him again when , &c. and a. b. gave them unto the plaintiff , and the plaintiff supposing the property to be in a. b. at the time of the gift , took them and and the defendant took them from the plaintiff , whereupon the plaintiff brings an action : that is a good colour , and a good plea. see more hereof in doctor and student l. . c. . colour is for this cause viz. where the defendant justifies by title in trespass or assize , if he do not give the plaintiff colour , his plea amounteth only to not guilty , for if the defendant hath title he is not guilty co. . . colour of office. colour of office is always taken in the worst part , and signifies an act evilly done by the countenance of an office , and it bears a dissembling face of the right of the office , whereas the office is but a vail to the falshood , and the thing is grounded upon vice , and the office is as a shadow to it . but by reason of the office , and by virtute of the office , are taken always in the best part , and where the office is the just cause of the thing , and the thing is pursuing the office , plo. in dive & man. case , sol . . a. combat . combat , in our ancient law , was a formal trial of a doubtful cause or quarrel by the sword or bastons of two champions . see glanvile l. . c. . britton c. . and dyer fol. . num . . commandment . commandment is taken in divers significations : sometimes for the commandment of the king , when by his mere motion and from his own mouth he casts any man into prison , stamf. plac. coron . fol. . or of the iustices : and this commandment of the iustices is either absolute or ordinary . absolute , as when upon their own authority , or wisdom and discretion , they commit any man to prison for a punishment . ordinary is , when they commit one rather to be safely kept , then for punishmenr ; and a man committed by such ordinary commandment is bailable , placit . cor. fol. . commandment is again used for the offence of him that wills another man to transgresse the law , or to do any such thing as is contrary to the law , as murther , theft , or such like , bract. l. . tract . . c. . the civilians call this commandment , angelus de maleficiis . commendrie . commandrie was the name of a manor or chief messuage , with which lands or tenements were used belonging to the late priory of s. john of jerusalem , untill they were given to king henry the eighth by statute made in the year of his reign . and he who had the government of any such manor or house was called the commander , who had nothing to do to dispose of it , but to the use of the priory , and to have only his sustenance from it according to his degree , which was usually a brother of the same priory , who had been made knight in the wars against infidels ; and they were lately called knights of the rhodes , or knights of malta , of the places where their grand master did dwell . see the said statute , and the old statute intituled de templariis , whose decay was , a great increase of this order . and many of these commandries are called in the country by the name of temple . commandam . commendam is a benefice that , being void , is commended to the care of some sufficient clerk , to be supplied untill it may be conveniently provided of a pastor . and the true original of these commendams was either evident profit , or necessity . he to whom the church is commended hath the fruits and profits thereof only for a certain time , and the nature of the church is not changed thereby , but is as a thing deposited in the hands of him to whom it is commended , who hath nothing but the custody thereof , which may be revoked . commissary . commissary is a title of ecclesiastical iurisdiction , appertaining to him that exercises spiritual iurisdiction in places of the diocess so far distant from the chief city , that the chancellor cannot call the subjects to the bishop's principal consistory without their great trouble . this commissary is called by the canonists commissary , or officialis foraneus ; and is ordained to this special end , that he should supply the office and iurisdiction of the bishop in the out-places of the diocess , or in such parishes as are peculiars to the bishop and exempted from the archdeacon's iurisdiction : for where by prescription , or by composition , there are archdeacons ; who have iurisdiction in their archdeaconries , as in most places they have , there this commissary is superfluous , and rather to the prejudice then good of the people . commission . commission is as much in the common law as the word delegate in the civil , and is taken for the warrant or letters patents which all men , using iurisdiction , either ordinary or extraordinary , have for their power to hear or determine any matter or action . yet this word sometimes extends more largely then to matters of iudgement ; as the commission of purveyors or cakers , h. . c. . but with this epithete high , it is most commonly used for the high-commission court , instituted and founded upon the stat. of eliz. c. . for the ordering and reforming of all offences in any thing appertaining to the iurisdiction ecclesiastical , but especially such as are of highest nature , or at least require greater puishment then the ordinary iurisdiction call afford . see the statutes car. . c. . and car. . c. . by which the said court is wholly abolished . commission of rebellion . com̄ission of rebellion , otherwise called a writ of rebellion , is used when a man after proclamation made by the sheriff , upon an order or process of the chancery , under penalty of allegeance to present himself to the court by a day certain , appears not . and this commission is directed by way of command to certain persons , to the end they , three , two , or one of them , shall apprehend or cause to be apprehended the party , as a rebell and contemner of the kings laws , in what place s ● ever they shall find him within the kingdom , and bring or cause him to be brought to the court upon a day therein assigned . committee . committee is he or they to whom the consideration or ordering of any matter is referred , either by some court , or consent of the parties to whom it appertains : as in parliament a bill being read , is either consented unto and passed , or denied , and referred to the consideration of some certain man appointed by the house , who hereupon are called a committee . but this word is otherwise used by kitchen . f. . where the widdow of the kings tenant is called the committee of the king , that is , one committed by the ancient law of the land to the kings care and protection . common . common is the right that a man hath to put his beasts to pasture , or to use the ground that is not his own . and note that there are divers commons , that is , common in grosse , common appendant , cōmon appurtenant , and common because of neighbourhood . common in gross is , where i , by my deed , grant to another that he shall have common in my land. common appendant is , where a man is seised of certain land , to which he hath common in anothers ground , only for those beasts which compost the land to which it is appendant , excepting geese , goats , and h ● gs ; which common is by prescription , and of common right , and appendant to arable land only . common appurtenant is of the same nature with common appendant ; but with all manner of beasts , as well hogs and goats , as horses , kine , and such as compost the ground . and this common may be made at this day , and severed from the land to which it is appurtenant , but so cannot common appendant . common because of neighbourhood is , where the tenants of two lords are seised of two mannors adjoyning to each other ; and the tenants have time out of mind intercommoned each with other with all manner of beasts commonable . yet the one may not put his cattel in the others ground , for so they of the other town may distrain them dammage fesant , or have an action of trespass : but they may put them into their own fields , and if they stray into the fields of the other town , there they ough to suffer them . and the inhabitants of the one town ought not to put in as many beasts as they will , but with regard to the inhabitants of the other , for otherwise it were no good neighbourhood , upon which all this depends . common fine . common fine is a certain summe of money which the resiants in a leet pay unto the lord of the leet ; and it is called in some places head-silver , in some places certum letae , and was ( as it seems ) first granted to the lord towards the charge of his purchase of the leet , whereby the resiants had now an ease to do their suit royal within the mannor , and not be compelled to go to the sherifs tourn to do it . and for this common fine the lord must prescribe , and cannot distrain for it without a prescription , as it appears in godfrey's case , in . rep. fo . . b. common law. common law is for the most part taken three ways . first , for the laws of this realm simply , without any other law , as customary , civil , spiritual , or whatever other law joyned to it ; as when it is disputed in our laws of england , what ought of right to be determined by the common law , and what by the spiritual law , or admirals court , or such like . secondly , it is taken for the kings courts , as the kings bench , or common place , only to shew a difference between them and base courts ; as customary courts , court-barons , county courts , pipowders , and such like : as when a plea of land is removed out of ancient demesne , because the land is frank-fee , and pleadable at the common law , that is to say , in the kings court , and not in ancient demesne , or in any other base court. thirdly , and most usually , by common law is understood such laws as were generally taken and holden for law before any statute was made to alter the same : as for example , tenant for life , nor for years , were not to be punished for doing waste at the common law , till the statute of gloucester cap. . which gives an action of waste against them . but tenant by the courtesie and tenant in dower were punishable for waste at the common law , that is , by the usual and common received laws of the realm , before the said statute was made . common pleas. common pleas is the kings court now held in westminster-hall , but in ancient time moveable , as appears by magna charta , cap. . but gwyn , in the preface to his reading , saith , that untill the time that henry the third granted the great charter , there were but two courts , only called the kings courts , the exchequer , and kings bench which was called aula regia , because it followed the court ; and that upon the grant of that charter the court of common pleas was erected and setled in a place certain , viz. at westminster ; and therefore all the writs were made with this return , quid sit coram justiciariis meis apud westmonasteriū , where before the partie was commanded by them to appear coram me vel justiciariis meis , without any addition of any place certain . all civil causes , as well real as personal , are , or were in ancient time , tried in this court , according to the strict law of the kingdom : and by fortescue , cap. . it seems to have been the only court for real causes . the thief iudge thereof is called the lord chief justice of the common pleas , accompanied with three or four assistants or associates , who are created by the kings letters patents , and as it were installed or placed upon the bench by the lord chancellor and lord chief iustice of the court , as appears by fortescue , cap. . who expresses all the circumstances of this admission . the rest of the officers appertaining to this court are these : the custos brevium , three prothenataries , chirographer , fourteen philasers , four exigenters , clerk of the warrants , clerk of the iuries , clerk of the treasurie , clerk of the kings silver , clerk of the essoines , clerk of the outlawries . common day in plea of land . common day in plea of land , anno r. . stat. . cap. . signifies an ordinary day in the court , as octabis michaelis , quindena paschae , &c. as you may see in the statute ● hen. . concerning general days in the bench. commotes . commotes seems to be a compound word , of the preposition con , and motio , that is , dictio , verbum , and signifies in wales part of a county or hundred , an. h. . cap. . it is written commoithes , anno h. . cap. . and is used for a gathering made upon the people of this or that hundred by welsh minstrels . communi custodia . communi custodia is a writ which didlie for that lord , whose tenant holding by knights service dies , his eldest son within age , against a stranger who entred the land , and obtained the ward of the body . it seems to take name from the common custome or right in this case , which is , that the lord shall have the wardship of his tenant untill his full age ; or because that it is common for the recovery both of the land and tenant , as appears by the form thereof , old n. b. . regist . orig. . compromise . compromise is a mutual promise of two or more parties that are at controversie , to submit themselves and all differences between them unto the award , arbitrement , or iudgment of one or more arbitrators , indifferently chosen between them , to determine and adjudge upon all matters referred , and upon which the parties differ . computation . computation is used in the common law for the true and indifferent construction of time , so that neither the one party shall do wrong to the other , nor the determination of times , referred at large , be taken one way or other , but computed according to the just censure of the law. as if indentures of demise are ingrossed , bearing date the eleventh day of may , . to have and to hold the land in s. for three years from henceforth , and the indentures are delivered the fourth day of june in the year aforesaid : in this case , from henceforth , shall be accounted from the day of the delivery of the indentures , and not by any computation from the date . and if the said indenture be delivered at four of the clock in the afternoon of the said fourth day , this lease shall end the third day of june in the third year ; for the law in this computation rejects all fractions or divisions of the day for the incertainty , which alwayes is the mother of contention . so where the statute of inrollments made anno henr. . cap. . is , that the writings shall be inrolled within six moneths after the date of the same writings indented ; if such writings have date , the six months shall be accounted from the date , and not from the delivery ; but if they want date , then it shall be accounted from the delivery . co. li. . fol. . if any deed be shewed to a court at westminster , the deed by iudgment of the law shall remain in court all the term in which it is shewed ; for all the term in law is but one day . co. lib. . fol. . if a church be void , and the true patron doth not present within six months , then the bishop of the diocess may collate his chaplain : but these six months shall not be computed according to days to the month , but according to the kalendar . and there is great diversity in our common speech in the singular number , as a twelve-moneth , which includes all the year , according to the kalendar , and twelve-months , which shall be computed according to days to every month . see coke lib. . f. . b. computo . computo is a writ so called of the effect , because it compells a bayliff , chamberlain , or receiver , to yield his account , old nat. brev. fol. . it is founded upon the statute of westm . . cap . which you may for your better understanding read . and it also lies for executors , of executors , ed. . star. de provis . victual cap. . thirdly , against the gardian in secage , for waste made in the minority of the heir , malbr . cap. . and see farther in what other cases it lies , reg. orig. fol. . old n. b. fol. . & f. n. b. fol. . concealers . concealers are such as find out lands concealed , that is , such lands as are secretly detained from the king by common persons , having nothing to shew for them , anno eliz. cap. . they are so called a concelando , as mons a movendo , by antiphrasis . conclusion . conclusion is , when a man by his own act upon record hath charged himself with a duty or other thing : as if a free-man confesse himself to be the villain of a ●● upon record , and afterward a. takes his goods , he shall be concluded to say in any action or plea afterwards that he is free , by reason of his own confession . so if the sheriff , upon a capias to him directed , returns that he hath taken the body , and yet hath not the body in court at the day of the return , he shall be amerced : and if it were upon a capias ad satisfac ' , the plaintiff may have his action against the sherif for the escape ; for by such return the sherif hath concluded himself . and this word conclusion is taken in another sense , as for the end or later part of any de●● aration , barre , replication , &c. as where to the barre there ought to be a replication , the conclusion of his plea shall be , and this he is ready to affirm . if in dower the tenant pleads , that he was never seised so as to tender dower , the conclusion shall be , and upon this he puts himself upon the country . and in what manner the conclusion shall be according to the nature of several actions , see kitch . f. , , &c. concord . concord is defined to be the very agreement between parties that intend the levying a fine of lands one to another , how and in what manner the lands shall be passed ; for in the form thereof many things are to be considered . see west . part . tit . fines & concords , sect . . concord is also an agreement made upon any trespasse committed between two or more , and is divided into a concord executory , and executed . see plowd . in reniger and fogasie's case , fol. , & . where it appears by the opinion of some , that the one doth not bind , as being imperfect ; the other , being absolute , binds the parties . and yet by the opinion of others , in the same case , it is affirmed , that concords executory are perfect , and do no less bind then concords executed , fol. . b. it is lately held , that in as much as actions on assumpsits are now in use , which were rarely before the reign of king h. . that now an accord with an assumpsit upon which an action lyes is a good plea in all those actions to which it was formerly a good plea if executed . concubinage . concubinage is an exception against her that brings an action for her dower , whereby it is alledged , that she was not lawfully married to the party in whose lands she seeks to be endowed , but his concubine . brit. cap. . bract. lib. . tract . . cap. . conders . conders are those that stand upon high places near the sea-coast , at the time of herring-fishing , to make signs with boughs , &c. in their hands to the fishers , which way the shole of herrings passes : for they who stand upon some high cliffe may see it better then those that are in their ships . these are otherwise called huers and balkers , as appears by the statute of jac. cap. . condition . condition is a restraint or bridle annexed to a thing , so that by the not performance , or not doing of it , the party to the condition shall receive prejudice and loss , and by the performance and doing of it , commodity and advantage . all conditions are either conditions actual and expressed , which are called concitions in deed ; or else implied or covert , and not expressed , which are conditions in law. also all conditions are either conditions precedent and going before the estate , and are executed ; or else subsequent and following after the estate , and executory . condition precedent doth get and gain the thing or estate made upon condition , by the performance of it . condition subsequent keeps and continues the thing or estate made upon condition , by the performance of it . actual and expresse condition , which is called a condition in deed , is a condition annexed by express words to the feoffment , lease , or grant , either in writing , or without writing : as if i infeoff a man in lands , reserving a rent to be paid at such a feast , upon condition , that if the feoffee fail of payment at the day , then it shall be lawfull for me to re-enter . condition implied or covert is , when a man grants to another the office to be keeper of a park , steward , bedle , bayliff , or such like , for term of life ; and though there be no condition at all expressed in the grant , yet the law speaks covertly of a condition , which is , that if the grantee doth not execute all points appertaining to his office , by himself or his sufficient deputy , then it shall be lawfull for the grantor to enter , and discharge him of his office. condition precedent is , when a lease is made to one for life , upon condition , that if the lessee will pay to the lessor xx . li. at such a day then he shall have fee-simple : here the condition preceeds the estate in fee-simple , and upon the performance of the condition doth gain the fee-simple . condition subsequent , and coming after , is , when one grants to j. s. his manor of dale in fee-simple , upon condition , that the grantee shall pay to him at such a day xx . li. or else that his estate shall cease : here the condition is subsequent and following the estate in fee , and upon the performance thereof doth continue the estate . see more of this in cok. lib. . fol. . and in lit. li. . cap. . and perkins in the last title of conditions . confederacy . confederacy is , when two or more confederate themselves to do any hurt or damages to another , or to do any unlawfull thing . and though a writ of conspiracy doth not lie , if the party be not indicted , and in lawfull manner acquitted , for so are the words of the writ ; yet false confederacy between divers persons shall he punished , though nothing be put in ure : and this appears by the book of assis . placit . . where there is a note , that two were indicted of confederacy , each of them to maintain other , whether their matter were true or false , and though nothing was supposed to be put in use , the parties were put to answer , because this thing is forbidden in the law. so in the next article in the same book , enquiry shall be made of conspirators and confederators , which bind themselves together , &c. falsly to endite or acquit , &c. the manner of their binding , and between whom : which proves also , that confederacy to indite or acquit , although nothing be done , is punishable by the law. and it is to be observed , that this confederacy punishable by law before it be executed , ought to have four incidents : first , to be declared by some matter of prosecution , as by making of bonds or promises the one to the other ; secondly , to be malicious , or for unjust revenge ; thirdly , to be false against on innocent ; and lastly , to be out of court , voluntarily . confession of offence . confession of offence is , when a prisoner is appealed or indicted of treason or felony , and broughe to the bar to be arraigned ; and his indictment is read unto him , and he is demanded by the court what he can say thereto ; then either he confesses the offence and the indictment to be true , or he estranges himself from the offence , and pleads not guilty , or else gives an indirect answer , and so in effect stands mute . confession may be made in two sorts , and to two several ends . the one is , he may confesse the offence whereof he is indicted openly in the court before the iudge , and submit himself to the censure and judgement of the law : which confession is the most certain answer and best satisfaction that may be given to the iudge to condemn the offendor , so that it proceeds freely and of his own accord , without any threats , force , or extremity used ; for if the confession arise from any of these causes , it ought not to be recorded . as a woman was indicted for the felonious taking of bread to the value of two shillings , and being thereof arraigned , she confessed the felony , and said , that she did it by the commandment of her husband ; and the iudges in pity would not record her confession , but caused her to plead not guilty to the felony : whereupon the iury found , that she stole the bread by the compulsion of her husband against her will , for which cause she was discharged . assis . pla . . the other kind of confession is , when the prisoner confesses the indictment to be true , and that he hath committed the offence whereof he is indicted , and then becomes an approver , that is , an accuser of others who have committed the same offence whereof he is indicted , or other offences with him ; and then prayes the iudge to have a coroner assigned him , to whom he may make relation of those offences , and the full circumstances thereof . there is also a third kind of confession made by an offendor in felony , which is not in court before the iudge , as the other two are , but before a coroner in a church or other priviledged place , upon which the offendor by the ancient law of the realm is to abjure the realm . confirmation . confirmation is , when one who hath right to any lands or tenements makes a deed to another who hath the possession or some estate , with these words , ratificasse , approbasse , confirmasse , with intent to enlarge his estate , or make his possession perfect , and not defesible by him that makes the confirmation , nor by any other that may have his right . whereof see more in littl. l. . cap. . of confirmation . confiscate . confiscate is derived from the latine fiscus , which originally signifies a hamper or basket , but metonymically the princes treasure , because in ancient time it was put in the hampers or frails . and though our king doth not put his treasure in such things , yet as the romans have said , that such goods as were forfeited to the emperors treasury were bona confiscata , in like manner do we say of such goods as are forfeited to the kings exchequer . and the title to have these goods is given to the king by the law , when they are not claimed by some other : as if a man be indicted , that he feloniously stole the goods of another man , where in truth they are the proper goods of him indicted , and they are brought in court against him as the manner , and he there asked what he says to the said goods ; to which he disclaimes : by this disclaimer he shall lose the goods , although that afterwards he be acquitted of the felony , and the king shall have them as confiscated . but otherwise it is , if he doth not disclaim them . the same law is where goods are found in the felons possession , which he disavows , and afterwards is attainted of other goods , and not of them ; there the goods which he disavows are confiscate to the king : but had he been attainted of the same goods , they should have been said to be forfeited , and not confiscate , notwithstanding his disavowment . so if an appeal of robbery be brought , and the plaintiff leaves out some of his goods , he shall not be received to enlarge his appeal ; and forasmuch as there is none to have the goods so left out , the king shall have them as confiscate , according to the old rule , quod non capit christus , capit fiscus . and as in the case aforesaid the law punishes the owner for his negligence and connivency , so the law abhors malice , in seeking the bloud of any without just cause . and therefore if a. hath the goods of b. by delivery , or finding , and b. brings an appeal against a. for taking them feloniously , and it is found that they were the plaintiffs goods , and that the defendant came lawfully by them ; in this case these goods are confiscate to the king , because of the false and malicious appeal . congeable . congeable comes of the french word conge , id est , venia , and signifies in our common law as much as lawfull , or lawfully done ; and so littleton uses it in his . sect . where he says , that the entry of the dis● elsee is congeable . conged ' eslire . conge đ eslire ( i leave to chuse , or power of chusing ) is the kings royal permission to any dean and chapter in time of vacancy to chuse a bishop ; or to an abbey or priory of his own foundation , to chuse their abbot or prior. fitzh . nat. brev. fol. . b. . b. c. &c. master gwin in the preface to his readings saith , that the king of england , as soveraign patron of all archbishopricks , bishopricks , and other ecclesiastical benefices , had of ancient time free disposition of all ecclesiastical dignities whensoever they happen'd to be void , investing them first per baculum & annulum , and afterwards by his letters patents ; and that in progress of time they gave power to others to make election under certain forms and conditions ; as namely , that they upon e ● ery vacation should beg of the k. conge de eslire , that is , licence to proceed to election , and after to crave his royal assent , &c. and farther he affirms by good proof out of the common-law books , that king john was the first that granted it , and that it was afterward confirmed by westm . . c. . which statute was made anno e. . and again by the statute de art. cleri , c. . which was ordained anno e. stat. . conjuration . conjuration is a compact or plot made by men combining themselves together by oath or promise to do any publick harm . but it is more commonly used for such as have personal conference with the devil or evil spirit , to know any secret , or to effect any purpose . anno eliz. c . and the difference between conjuration and witchcraft may be this : because the one seems by prayers and invocation upon the powerful name of god , to compell the devil to say or do what he commands ; and the other doth it rather by a friendly and voluntary conference or agreement between him or her , and the devil or familiar , to have his or her desires and purposes effected , instead of blood or other gift offered him , especially of his or her soul. and both these differ from enchantments or sorceries , because they are personal conferences with the devil , as is said ; but these are but medicines and ceremonial forms of words , commonly called charms , without apparition . conservator of the peace . conservator of the peace is he that hath an especial charge by virtue of his office to see the kings peace kept . which peace in effect is defined to be , a with-holding or abstinence from that injurious force and violence that unruly and boisterous men are in their natures prone to use towards others , were they not restrained by laws and fear of punishment . of these conservators lambert farther saith , that before the time of king e. who first appointed iustices of peace , there were sundry persons who by the common law had interest in keeping of the peace . of those some had that charge as incident to their offices , and so included within the same , and yet notwithstanding were called by the name of their office only : others had it simply , as of it self , and were thereof named custodes pacis , wardens or conservators of the peace . and both these sorts are again subdivided by lambert in his eirenarcha , l. . c. . conservator of the truce . conservator of the truce was an officer appointed in every port of the sea under the kings letters patents , and had li. for his yearly stipend at the least . his charge was to enquire of all offences done against the kings truce and sa ● e conducts upon the main sea , out of the countries and liberties of the cinque-ports of the king , as the admirals have accustomedly done ; and such other things as are declared anno h. . cap. . touching this matter you may read the other statute of anno h. . c. . consideration . consideration is the material cause of a contract , without which no contract can bind the party . this consideration is either expressed , as when a man bargains to give twenty shillings for an horse : or is implied , as when the law it self inforces a consideration ; as if a man comes into a common inne , and there staying some time , takes meat or lodging , or either , for himself or his horse , the law presumes he intends to pay for both , notwithstanding that nothing be covenanted between him and his host , and therefore if he discharges not the house , the host may stay his horse . also there is consideration of nature and blood , and valuable consideration : and therefore if a man be indebted to divers others , and yet , in consideration of natural affection , gives all his goods to his son or cousin , this shall be construed a fraudulent gift within the act of eliz. c. . because this act intends a valuable consideration . consistory . consistory is a word borrowed of the italians , or rather lombards , and signifies as much as tribunal . it is vocabulum utriusque juris , and is used for the place of iustice in the courts christian or spiritual . consolidation . consolidation is used for the combining and uniting of two benefices in one : and this word is taken from the civil law , where it properly signifies an vniting of the possession , occupation , or profit , with the property . as if a man hath by legacy usum fructum fundi , and after purchases the property or fee-simple of the heir ; in this case a consolidation is made of the profits and property . vide brook , tit . union . conspiracie . conspiracie , notwithstanding that in latine and french it is used for an agreement of men to do a good or evil thing , yet it is commonly taken in our law in the evil part ; and is defined in e. . stat. . to be an agreement of such as confeder or bind themselves by oath , covenant , or other alliance , that every of them shall bear and aid the other falsly and maliciously , to indict , or falsly to move or maintain pleas ; and also such as cause children within age to appeal men of felony , whereby they are imprisoned and sore grieved ; and such as maintain men in the country with liveries and fees to maintain their malicious enterprises : and this extends as well to the takers , as to the givers . also stewards and bayliffs of great lords , who by their selgniory , office or power , undertake to bear or maintain quarrels , pleas or debates , that concern other parties then such as touch the estate of their lords , or of themselves . anno e. . c. . h. . c. and hereof see more , h. . c. . h. . c. . also in the old book of entries , word conspiracie . this word in the place before rehearsed is taken more generally , and is confounded with maintenance and champerty ; but in a more special signification it is taken for a confederacy between two or more , falsly to indict one , or to procure one to be indicted of felony . and the punishment of conspiracy upon an indictment of felony at the suit of the king is , that the party attainted shall lose his frank law , so that he shall not be impanelled upon iuries or assises , or such like imployments , for testifying of the truth : and if he hath to do in the kings court , he shall make his attorney ; and his lands , goods and chattels shall be seised into the kings hands , his lands estreaped , his trees digged up , and his body committed to prison . lib. assise crompton . b. this is called villanous judgement . but if the party grieved will sue a writ of conspiracy , then see fitzh . nat. brev. . d. . i. &c. constable . constable is diversely used in the common law. and first , the constable of england , who is also called marshal , stanf. pl. cor. fol. . of whose authority and dignity a man may find many arguments and signs , as well in the statutes , as in the chronicles of this realm . his power consists in the care of the common peace of the land , in deeds of arms , and matters of war , lamb. duties of constables , num . wherewith agrees the statute of r. . c. . stat. . of this officer or magistrate , gwyn , in the preface to his readings , saith to this purpose ; the court of the coustable and marshal determines contracts touching deeds of arms out of the realm , and handles things concerning wars within the realm , as combats , blazons of armory , and suth like ; but he hath nothing to do with battel in appeal , nor generally with any other thing that may be tried by the law of the land. see fortesc ' cap. . this office heretofore was appertaining to the lords of certain manors jure feudi ; and why it is discontinued , see dyer . pl. . out of this magistracie ( saith lambert ) were drawn these inferior constables , which we call constables of hundreds and liberties , and first ordained by the statute of winchester edw. . which appoints for the conservation of the peace , and view of armour , two constables in every hundred and liberty ; and these are at this day called high constables , because the increase of people and offences hath again under these made others in every town , called pe ● ie constables , who are of the like nature , but of inferiour authority to the other . besides these , there are officers of particular places called by this name ; as constable of the tower , stan. . h. . . constable of the exchequer , h. . stat. . constable of dover castle , camb. brit. pag. . f. n. b. otherwise called castellain . manw. part . . cap. . of his forest law , makes mention of a constable of the forest . customes and services . see prescription . customes and services is a writ , and lies where i or my ancestors , after the limitation of assise , ( for which see the title of limitation in the collection of statutes ) were not seised of the customes or services of the tenant before ; then i shall have this writ to recover those services . also the tenant may have this writ against his lord , but after the tenant hath declared , the lord shall defend the words of the declaration , and replying shall say , that he distrained not for the customes whereof the declaration is ; and then he shall declare all the declaration of the customes and services ; and then the tenant , who was plaintiff , shall become defendant , and shall defend by battel or great assise . consultation . consultation is a writ , whereby a cause being formerly removed by prohibition out of the ecclesiastical court , or court christian , to the kings court , is returned thither again ; for if the iudges of the kings court , comparing the libell with the suggestion of the party , find the suggestion false , or not proved , and therefore the cause to be wrongfully called from the court christian ; then , upon this consultation or deliberation , they decree it to be returned again ; whereupon the writ in this case obtained is called a consultation . of this you may read the regist . orig. fol. . untill fol. . old. nat. brev. fol. . & fitzh . nat. brev. fol. . contenement . contenement seems to be the freehold-land that lies to the tenement or dwelling-house that is in his own occupation : for in magna charta , cap. . there are these words ; a free-man shall not be amerced for a small fault , but according to the quantity of the fault , and for a great fault , according to the manner thereof , saving unto him his conteuement or free-hold : and a merchant shall also be amerced , saving to him his merchandizes ; and a villain , saving to him his wainage . continual claime . continual claim is , where a man hath right to e ● ter into certain lands whereof another is seised in fee , or fee-tail , and dares not enter for fear of death or beating , but approaches as nigh as he dares , and makes claim thereto within the year and day before the death of him that hath the lands ; if that he who hath the land die seised , and his heir is in by discent , yet he that makes such claim may enter upon the heir , notwithstanding such discent , because he hath made such continual claim . but such claim must always be made within the year and the day before the death of the tenant ; for if such tenant do not die seised within a year and a day after such claim made , and yet he that hath right dares not enter , then it behoves him that hath such right , to make another claim within the year and day after the first claim , and after such second claim , to make the third claim within the year and day , if he will be sure to save his entry . but if the disseisor die seised within the year and day after the disseisin , and no claim made , then the entrie of the disseisee is taken away , for the year and day shall not be taken from the time of the title of the entry to him grown , but only from the time of the last claim by him made , as is aforesaid . see more hereof in littl. li. . c. . and see the stat. h. . cap. . continuance . continuance in the common law is of the same signification with prorogatio in the civil : as continuance until the next assise , fitzh . nat. brev. . f and . d. in both which places it is said , that if a record in the treasury be alledged by the one party , and denyed by the other , a certiorari shall be sued to the treasurer and the chamherlain of the exchequer ; and if they do not certifie in the chancery that such record is there , or that it is like to be in the tower , the king shall send to the iustices , repeating the said certificate , and commanding them to continue the assise . in this signification it is also used by kitchen , . and . also anno h. . cap. . contract . contract is a bargain or covenant between two parties , where one thing is given for another , which is called quid pro quo ; as if i sell my horse for money , or if i covenant to make you a lease of my mannor of dale , in consideration of twenty pound that you shall give me , these are good contracts , because there is one thing for another . but if a man make promise to me , that i shall have xx . s. and that he will be debtor to me thereof , and after i ask the xx s. and he will not deliver it ; yet i shall never have any action to recover this xx s. because this promise was no contract , but a bare promise , and ex nudo pacto non oritur actio . but if any thing were given for the twenty shillings , though it were but to the value of a peny , then it had been a good contract . contra forma collationis . contra formam collationis is a writ that lies where a man hath given lands in perpetual almes to any of the late houses of religion , as to an abbot and convent , or other soveraign , or to the warden or master of any hospital and his covent , to find certain poor men , and to do other divine service , if they alien the lands , then the donor or his heirs shall have the said writ to recover the land. but this writ shall be alway brought against the abbot or his successor , and not against the alienee , although he be tenant : but in all other actions where a man demands free-hold , the writ shall be brought against the tenant of the land. see the stat. west . . cap. . contra formam feoffamenti . contra formā feoffamenti is a writ that lies where a man before the statute of quia emptores terrarum , made edw. . infeoffed another by deed to do certain service ; if the feoffor or his heirs distrain him to do other service then is comprised in the deed , then the tenant shall have this writ , commanding him not to distrain him to do other service then is comprised in the deed. but this writ lies not for the plaintiff who claims by purchase from the first feoffee , but for the heir to the first feoffee . contributione facienda . contributione facienda is a writ that lies where there are divers parceners , and he who hath the part of the eldest makes all the suit to the lord , the others ought to make contribution to him , and if they will not , he shall have against them this writ . in some cases the heir shall have contribution , and in others not , but shall be alone charged : for if a man be seised of three acres of land , and acknowledges a recognizance or statute , &c. and infeoffs a. of one acre , and b. of another acre , and the third discends to his heir ; if execution be sued against the heir only , he shall not have contribution against any purchasor , yet he is charged as terre-tenant , and not as heir ; for the land , and not himself , is charged . yet if a man be seised of two acres , the one of the nature of borough-english , and binds himself as before , and dies , having issue two daughters , who make partition ; in this case , if the one be charged , he shall have contribution : for as one purchasor shall have contribution against others , and against the heir of the conusee also ; so one heir shall have contribution against another heir , for they are in equal degree . also if a man be so bound , and after his death some of his land descends to the heir of the part of the father , and some to the heir of the part of the mother ; the one alone shall not be charged , but if he be , he shall have contribution . in dower , if the tenant vouches the heir in ward to three several lords , each of them shall be equally charged . if two , four , or more men be severally seized of land , and they all joyn in a recognisance ; in this case the conusee cannot extend the land of any of the conusors alone , but all ought equally to be charged : for though the land of the conusor himself may be only extended when divers men have purchased any of the land subject to the recognisance , because the purchasor is in another degree then the conusor himself ; yet one of the conusors shall not be solely charged , for he stands in equal degree with the other conusors : also the tertenant of a debtor upon an extent shall have contribution of the heir of the debtor , which see cro. eyer against taunton . if iudgement be given against two disseisors in assise for the land and damages , and one disseisor dies , the execution shall not be awarded against the surviving disseisor that was party to the wrong , but as well the heir as the disseisor shall be equally charged . but otherwise it is in personal binding ; as if two are bound in an obligation , there the charge shall survive . and where it is said , that the one purchasor shall have contribution , it is not thereby intended , that the others shall give or allow unto him any thing by way of contribution ; but it ought to be intended , that the party that is solely extended for all may by an audita querela , or scire facias , as the case requires , defeat the execution , and thereby shall be restored to all the mean profits , and force the conusee to sue execution of all the land : so in this manner every one shall be contributory , viz. the land of every terre-tenant shall be equally extended . convocation . convocation is commonly taken for the assembly of all the clergy to consult of exclesiastical matters in time of parliament : and as there are two houses of parliament , so there are two places called convocation-houses ; the one called the higher convocation-house , where the archbishops and bishops sit severally by themselves ; the other , the lower convocation-house ; where all the rest of the clergy sit . vide prolocutor . conusance . conusance of plea is a priviledge that a city or tenant hath by the kings grant , to hold plea of all contracts , and of lands within the precinct of the franchise , and that when any man is impleaded for any such thing in the court of the king at westm . the mayors or bayliffs of such franchises , or their atturneys , may ask conusance of the plea , that is to say , that the plea and the matter shall be pleaded a ● d determined before them . but if the court at westminster be lawfully seised of the plea before conusance be demanded , then they shall not have conusance for that suit , because they have neglected their time of demand thereof : but this shall be no bar to them to have conusance in another action ; for they may demand conusance in one action , and omit it in another , at their pleasure . and note : that conusance lies not in prescription , but it behoves to shew the kings letters patents for it . coparceners . coparceners . see parceners . copyhold . copyhold is a tenure for which the tenant hath nothing to shew but the copies of the rolls made by the steward of his lord's court : for the steward , as he inrolls all other things done in his lords court , so he doth also such tenants as are admitted in the court to any parcel of land or tenements belonging to the manor ; and the transcript of this is called the court-roll , the copy whereof the tenant takes from him , and keeps as his only evidence . coke l. . fol. . this tenure is called a base tenure , because it holds at the will of the lord , kitchen , fol. . fitzh . nat. brev. f. . b. c. who saith , it was wont to be called tenure in villenage , and that this copyhold is but a new name . yet it is not simply at the will of the lord , but according to the custome of the manor ; so that if a copiholder break not the custome of the manor , and thereby forfeit his tenure , he seems not so much to stand at his lords courtesie for his right , as to be displaced when he pleases . the customes of manors are infinite , varying in one point or other almost in every several manor . first , some copyhold is fineable , and some certain . that which is fineable the lord rates at what fine he pleases , when the tenant is admitted unto it : that which is certain is a kind of inheritauce , and called in many places customary , because the tenant dying , and the hold being void , the next of bloud , paying the customary fine , cannot be denied admittance . secondly , some copyholders have by custome the woods growing upon their own land , which by the law they cannot have . thirdly , there are copy-holders that hold by the vierge in ancient demesne , and although they hold by copy , yet they are in nature of free-holders ; for if such a one commit felony , the king hath the year , day , and waste , as in case of free-hold . some others hold by common tenure called mere copyhold , and if they commit felony , their land presently escheats to the lord of the manor . west . part . l. . sect . . defines a copyholder thus ; tenant by copy of court-roll is he who is admitted tenant of any lands or tenements within a manor , which time without the memory of man , by use and custome of the said manor , have been dimisable to such as will take the same in fee , fee-tail , for life , years , or at will , according to the custom of the said manor , by copy of court-roll . coraage . coraage is an imposition extraordinary , growing upon some unusual occasion , and seems to be of certain measures of corn. bract. l. . c. . num . . uses corus tritici for a measure of corn ; and in the same chapter , numb . . hath these words : there are certain common protestations , which are not called services , neither do they arise from custom , unless some necessary occasion happen , or that the king comes : such are hidage , coraage , and caruage , and many others which are performed in cases of necessity , by the common consent of the whole kingdom , and which appertain not to the lord of the fee ; nor is he bound to acquit his tenant thereof , unless he hath especially tied himself thereto by his own deed. cordwayner . cordiner or cordwayner comes from the french cordvannier , that is , a shoomaker , from a kind of leather which the french-men call cordovan . and it is a word much used in our statutes , as in those of h. c. . h. . c. . & . jac. c. . cornage . cornage is a kind of grand serjeanty ; the service of which tenure is , to blow an horn when any invasion of the northern enemy is perceived . and by this many northward held their land , about the wall commonly called the picts wall. cambdens brit. ꝑag . . see littleton fol. . where he saith , that in the marches of scotland some hold of the king by cornage , that is to say , by blowing a horn ; to warn the country when they hear that the enemies will come ; which service is grand serjeanty . corodie . corodie is an allowance of meat , bread , drink , money , cloathing , lodging , and such like necessaries for sustenance . it is sometimes certain where the certainty of things is set down ; sometimes uncettain , where the certainty is not set down which he shall have . and some of them began by grant made by one man to another , and it may be for life , years , in tail , or in fee : and some corodies are of common right , as every founder of abbeys and other houses of religion had authority to assign such in the same houses , for father , brother , cousin , or other that he would appoint , if it were a house of monks ; and if he were founder of a house of nuns , then for his mother , sister , or other woman : and always this was provided for , that he that had a corodie in a house of monks might not send a woman to take it ; nor where corodie was due in a nunnery , there it was not lawful to appoint a man to receive it ; for in both cases such presentation was to be rejected . and this corodie was due as well to a common person founder , as where the king himself was founder . but where the house was holden in frankalmoigne , there the tenure it self was a discharge of corodie against all men , except it were afterward charged voluntarily ; as when the king would send his writ to the abbot for a corodie for such a one , whom they admit , there the house should be thereby charged for ever , whether the king were founder or not . see the writ of corodio habendo in fitzh . nat. brev. fol. . coroner . coroner is an ancient officer of trust , and of great authority , ordained to be a principal conservator or keeper of the peace , to bear record of the pleas of the crown , and of his own view , and of divers other things , &c. and therefore in the time of ed. . it was enacted that , forasmuch as mean men and indiscreet now of late are commonly chosen to the office of coroner , where it is requisite that wise men , lawful , and able , should execute such offices ; it is provided , that through all shires sufficient men shall be chosen to be coroners , out of the most wise and discreet knights which best know , can and will attend this office , and which faithfully will make and represent the pleas of the crown . and although the letter of this statute be not precisely observed , yet at least the intent should be followed as nigh as might be ; so that for the default of knights and gentlemen , furnished with such qualities as the statute sets down , ( of which sort there are many ) others might be chosen , with this addition , that they be vertuous and good christians . see hereof in the writ de coronatore eligendo , in fitzh . nat. brev. fol. . when the coroner is to enquire of the death of any person , or to do other thing concerning his office , he ought to do it in person : and upon the sudden death of any one , he himself ought to see the dead body when he makes enquiry , or otherwise the enquiry is not good ; for if he will enquire of any dead person without view , this is without authority , and so void . and if the body be buried before his coming , he ought to record it in his rolls , to the intent that the town where the burying was should be amerced for it before the iustices in eyre , upon the sight of the coroners rolls . and nevertheless the coroner ought to take up the body out of the ground , and make the enquiry upon view of the body , as he should do if it had not been buryed : and the town shall also be amerced , if they suffer it tol ● e on the ground to putrifie or stink , without sending to the coroner . and if the coroner be negligent in coming to do his office , after the bayliffs or countrey-men have sent for him , he shall be punished . although by the law the coroner cannot enquire of any felony , but the death of a man ; yet it hath been said , that in northumberland they enquire of all felonies ; but this authority they maintain by prescription . if a man be killed or drowned in the arms or creeks of the sea , where a man may see land from the one part to the other , the coroner shall enquire thereof , and not the admiral , for that the countrey may well have knowledge thereof . but the coroner of the kings house hath an exempt jurisdiction within the verge , and the coroner of the county cannot intermeddle within it ; as the coroner of the house cannot intermeddle within the county out of the verege . if the demandant or plaintiff be non-suited , or if iudgement be given against the tenant or defendant , or such like , the iustices never assess any amerciament , but the clerk of the warrants makes estreats thereof , and delivers them to the clerks of assise within every circuit , to deliver them to the coroners in every county , to affeere or assess the amerciaments , because they are thought most indifferent , forasmuch as they are chosen by the whole county . if an approver saith , that he began his appeal before the coroner by duresse , this shall be tried by the coroner ; and if the coroner denies it , the approver shall be hanged . by which cases it appears , that the law gives much credit and authority to coroners . corporation . corporation is a permanent thing , that may have succession : and it is an assembly and joyning together of many into one fellowship , brotherhood , and mind , whereof one is head and chief , the rest are the body ; and this head and body knit together make the corporation . and of corporations , some are spiritual , some temporal : and of spiritual some are corporations of dead persons in law , and some otherwise ; and some are by authority of the king only , and some have been of a mixt authority . and of those that are temporal , some are by the authority of the king also , and some by the common law of the realm . corporation spiritual , and of dead persons in the law , is where the corporation consists of an abbot and covent , which had beginning of the king , and the pope when he had to do here . corporation spiritual , and of able persons in law , is , where the corporation consists of a dean and chapter , master of a colledge or hospital ; and this corporation had beginning of the king only . corporation temporal by the king is , where there is a mayor and commonalty . corporation temporal by authority of the common law is the assembly in parliament , which consists of the king , the head of the corporation ; the lords spiritual and temporal , and the commons of the realm , the body of the corporation . bodies politick . bodies politick are bishops abbots , priors , deans , parsons of churches , and such like ; which have succession in one person only . if land be given to a maior and commonalty for their lives , they have an estate by intendment not determinable . so it is if a feoffment be made of land to a dean and chapter , without speaking of successors . release of a mayor for any summ of money due to the corporation in his own name is not good in law. in case of a sole corporation , or body politick , as bishop , parson , vicar , master of hospital , &c. no chattel either in action or possession shall go in succession , but the executors or administrators of the bishop , parson , &c. shall have them ; for succession in a body politick is as inheritance in case of a body private . but otherwise is in case of a corporation composed of many , as a dean and chapter , mayor and commonalty , and such like ; for there they in judgement of the law never die . yet the case of the chamberlain of london differs from all these , and his successors may in his own name have execution of a recognisance acknowledged to his predecessor for orphanagemoney : and the reason is , because in this case the corporation of the chamberlain is by custome , and the same custome that hath created him , and made a corporation in succession , as to the said special purpose concerning orphanage , hath enabled the successor to take such recognisances , obligations , &c. that are made to his predecessor . and this custom is founded upon great reason ; for the executors or administrators of the chamberlain ought not to intermeddle with such recognisances , obligations , &c. which by the said custom are taken in the corporate capacity of the chamberlain , and not in his private . but a bishop , parson , &c. or any sole corporation , that are bodies politick by prescription ; cannot take a recognisance or obligation , but only to their private , and not in their politick capacity : for they want custome to take a chattel in their politick or corporate capacity . corpus cum causa , or habeas corpus . corpus cum causa is a writ issuing out of the chancery , to remove both the body and the record of the cause of any man lying in execution upon ▪ a iudgement for debt , into the kings bench , &c. there to lie till he have satisfied the iudgement . fitzh . nat. brev. fol. . e. it lies also to remove any action from inferiour courts of record into any of the courts in westm . corruption of blood. corruption of blood is , when any one is attainted of felony or treason , then his bloud is said to be corrupt ; by means whereof neither his children , nor any of his bloud , can be heirs to him , or to any other ancestor , for which they ought to claim by him . and if he were a noble or gentleman before , he and all his children are made thereby ignoble and ungentle , having regard to the nobility or gentry they claim by their father , which cannot be restored by the kings grant , without authority of parliament . but if the king will pardon the offendor , it will cleanse the corruption of the blood of those children which are born after the pardon , and they may inherit the land of their ancestor purchased at the time of the pardon , or afterwards ; but so cannot they who were born before the pardon . also he that is attainted of treason or felony shall not be heir to his father : but this disability shall hinder others to be heir , so that during his life the land shall rather escheat to the lord of the fee , then discend to another . but if he who is attainted , dies without issue of his body , during the life of his ancestor , then his younger brother , sister , or cousin shall inherit : for if the eldest son be hanged , or abjure the realm for felony , during the life of the father , it is no impediment but that the youngest son may inherit . edw. . c. . and if he who is attaint of treason or felony in the life of his ancestor , purchase the kings pardon before the death of his ancestor , yet he shall not be heir to the said ancestor , but the land shall rather escheat to the lord of the fee by the corruption of bloud ass . pla . . but if the eldest son be a clerk convict in the life of his father , and after his father dies ; in this case he shall inherit his fathers land , because he was not attainted of felony ; for by the common law he should inherit after he had made his purgation . and now by the statute of el. cap. . he shall be forthwith enlarged after burning in the hand , and delivered out of prison , and not committed to the ordinary to make his purgation ; but he is in the same case as if he had made his purgation . if a man that hath land in right of his wife hath issue , and his bloud is corrupt by attainder of felony , and the king pardons him ; in this case , if the wife dies before him , he shall not be tenant by the courtesse , for the corruption of the blood of that issue . but it is otherwise if he hath issue after the pardon ; for then he shall be tenant , although the issue which he had before the pardon be not inheritable . h. . c. . if a man seised of land hath issue two sons , and the eldest is attainted in the life of his father of felony , and therefore executed , or otherwise dies during the life of his father , and after the father dies seised ; the land shall descend to the youngest son , as heir unto his father , if the eldest son hath no issue then alive . but if the eldest son , who was attaint , hath any issue 〈◊〉 , which should have inherited but for the attainder , the 〈◊〉 shall escheat to the lord , and shall not discend to the youngest brother , because the bloud of the eldest brother is corrupt . h. . dy. . but it is to be noted , that there are divers things made treason by act of parliament , whereof although a man be attainted , yet his bloud is not corrupt , neither shall he forfeit any thing , but that which he hath for his own life ; as if a man be attainted upon the statute of eliz. cap. . ordained against the maintaining of the authority of the bishop and see of rome , this shall not extend to make any corruption of bloud , the disheritance of any heir , forfeiture of any dower ; nor to the prejudice of the right or title of any person , other then the offendor during his natural life only . so if a man be attainted by force of the statute of eliz. cap. . provided against the clipping , washing , filing , and rounding of money , yet there is no corruption of bloud . in the same manner is it of the statute of eliz. cap. . jac. cap. . mar. cap. . against vnlawfull assemblies , and eliz. cap. . against the forging of evidence ; and the statute of eliz. c. . against the embezilling of the queens ordnance , armour , or artillery . corse present . corse present are words signifying a mortuary ; and the reason why the mortuary is so termed , is , because where a mortuary was wont to be due , the body of the best beast was , according to the law or custome , offered or presented to the priest . see anno hen. . ca. . where among other things it is enacted , that no corse present , nor any summe of money , or other thing , for any mortuary or corse present , shall be demanded , received , or had but only in such places and towns where mortuaries have been accustomed to be taken and paid . cosinage . cosinage is a writ that lies where my great grandfather , my grandfathers grandfather , or other cousin , dies seised in fee-simple , and a stranger abates , viz. enters into the lands ; then i shall have against him this writ or against his heir , or his alienee , or against whosoever comes after to the said lands : but if my grandfather die seised , and a stranger abates ; then i shall have a writ of ayel . but if my father , mother , brother , sister , vncle , or aunt die seised , and a stranger abates ; then i shall have an assise of mortdauncester . cottage . cottage is a little house for habitation of poor men , without any land belonging to it , whereof mention is made in the first statute made in e. . and the inhabitant of such a house is called a cottager . but by a statute made in the year of queen eliz. cap. . no man may build such a cottage for habitation , unless he lay unto it four acres of freehold-land ; except in market-towns or cities , or within a mile of the sea , or for habitation of labourers in mines , sailors , foresters , shepherds , &c. coucher . coucher is a factor who continues in some place or country for traffick . an . e. . c. . it is also used for the general book into which any corporation enters their particular acts for a perpetual remembrance of them . covenable . covenable is a french word signifying convenient or suteable ; as covenably endowed , anno h. . ca. . it is anciently written convenable , as in the stat. ed. . stat. . ca. . covenant . covenant is an agreement made by deed in writing , and sealed between two persons , where each of them is bound to the other to perform certain covenants for his part ; and if the one performs not his covenant , the other shall have thereupon a writ of covenant . and covenants are either in law , or in fact , cok. lib. . fol. . or covenant expressed , and covenant in law , cok. lib. . fol. . a covenant in law is that which the law intends to be done , though it be not expressed in words : as if a man demise any thing to another for a certain term , the law intends a covenant of the part of the lessor , that the lessee shall hold all his term against all lawfull incumbrances . covenant in fact is that which is expresly agreed between the parties . also there is a covenant meerly personal : and covenant real . fitzh . nat. brev. f. . seems to say , that covenant real is , whereby a man ties himself to pass a thing real , as lands or tenements ; as a covenant to levy a fine of land : covenant meerly personal is , where a man covenants with another by deed , to build a house , or to serve him . see the old book of entries , the word covenant . but note well , that no writ of covenant shall be maintainable without especialty , except in the city of london , or in some other place priviledged by custome and use . coverture . coverture is , when a man and a woman are married together ; now whatsoever is done concerning the wife in the time of the continuance of this marriage , is said to be done during the coverture , and the wife is called a woman covert , and thereby is disabled to contract with any one , to the prejudice of her self or her husband , without his consent and privity , at the least without his allowance and confirmation . see brook this title . and bract. saith that all things that are the wife's , are the husbands , neither hath the wife power of her self , but the husband , lib. . cap. . and the husband is the head of his wife , lib. . cap. . and again , that in any law-matter she cannot answer without her husband , lib. . tract . . cap. . and if the husband alien his wife's land during the coverture , she cannot gain-say it during his life . covin . covin is a secret assent determined in the hearts of two or more , to the prejudice of another : as if a tenant for term of life , or tenant in tail , will secretly conspire with another , that the other shall recover against the tenant for life the land which he holds , &c. in prejudice of him in the reversion . or if an executor or administrator permit iudgments to be entred against him by fraud , and plead them to a bond , or any fraudulent assignment or conveyance be made , the party grieved may plead covin and relieve himself . vid. stat. r. . cap. . h. . ca. . el. c. . and el. . count. count is as much as the original declaration in a processe , though more used in real than personal actions ; as declaration is more applied to personal than real . f. n. b. . a. . d. n. . a. . e. . a libel with the civilians comprehends both . yet count and declaration are confounded sometimes ; as count in debt , kitch . . count or declaration in appeal , pl. cor. . count in trespasse , brit. cap. . count in action of trespasse upon the case for a slander , kitch . . contours have been taken for such as a man retains to speak for him in any court , as advocates ; and pledeurs to be another sort , as attorneys for one that is present himself , but suffers another to speak for him . countours , according to m. horne , are such sergeants skilful in the law , which serve the common people to defend their actions in iudicature for their fee. countee . countee ( so called a comitando , because they accompany the king ) was the most eminent and high dignity from the conquest , untill the year of king ed. . when the black prince was created duke of cornwall : and those who of ancient time were created countees , were of the blood-royal ; aud at this day the king in all his appellations stiles them by the name of our most dear cousin . and for these causes the law gives them high and great priviledges ; and therefore their body shall not be arrested for debt , trespasse , &c. because the law intends that they assist the king with their counsel for the publick good , and keep the realm by their prowesse and valour . also for the same cause they shall not be put in iuries , although it be for the service of the country . and if issue be taken , whether the plaintiff or defendant be a countee or not , this shall not be tried by the countrey , but by the kings writ . also the defendant shall not have a day of favour against a lord of the parliament , because he is intended to attend the publick . and of ancient time the countee was praefectus , or praepositus comitatus , and had the charge and custody of the county : and now the sheriff hath all the authority for administration and execution of iustice which the countee had , cok. lib. . fol. . and therefore he is called viscount . countenance . countenance seems to be used for credit or estimation . old. nat. brev. . in these words ; the attaint shall be granted to poor men that will take their oaths they have not any thing whereof to make their fine , saving their countenance . in the same manner it is used edw. . stat. . cap. . in these words ; sheriffs shall charge the kings debtors with as much as they may levy with their oaths , without abating the debtors countenance . countermand . countermand is , where a thing formerly executed is afterward by some act or ceremony made void by the party that hath first done it . as if a man hath made his last will , whereby he devises his land to j. s. and afterwards he infeoffs another of the same land , there this feoffment is a countermand to the will , and the will as to the disposition of the land is void . if a woman seised of land in fee makes a will in writing , and devises that if a. of b. survives her , then she devises and bequeaths to him and his heirs her land , and afterward she entermarries with the said a. of b. there , by taking him to husband and coverture at the time of her death , the will is countermanded . but if a baroness widow retains two chaplains according to the statute , and takes one of the nobility to husband , and afterwards the husband dies , the reteiner of those two chaplains remains , and they without new reteiner may take two benefices , for their reteiner was not determined nor countermanded by such marriage . if a woman makes a lease at will , and afterwards takes an husband , this marriage is no countermand to the lease , without express matter done by the husband after the marriage to determine the will. also if a lease be made at will to a woman , and she takes an husband , the lease continues notwithstanding the marriage , and is no countermand thereunto . counterplea . counterplea is , when one brings an action , and the tenant in his answer and plea vouches or calls any man to warrant his title , or prayes in aid of another who hath better estate than he , as of him that is in the reversion ; or if one that is a stranger to the action come and pray to be received to save his estate ; if the demandant reply thereto , and shew cause that he ought not to vouch such a one , or of such a one to have aid , or that such a one ought not to be received ; this plea is called a counterplea to the voucher , aid , or resceit , as the case is . but when the voucher is allowed , and the vouchee comes in and demands what cause the tenant hath , and the tenant shews his cause , and the vouchee pleads any thing to avoid the warranty ; that is called a counterplea in the warranty . countie . countie signifies as much as shire , both containing a compasse or portion of the realm , into which all its land is divided , for the better government thereof , and more easie administring of iustice ; so that there is not any part of the kingdom that lies not within some county : and every county is governed by a yearly officer , whom we call sheriff , who , among other duties belonging to his office , puts in execution all the commandments and iudgments of the kings courts , that are to be executed within the compasse . fortesc ' cap. of these counties there are four more remarkable than others , called county palatines , as lancaster , chester , durham , and ely , an . . el. c. . there was also the county palatine of hexam , an . h. . cap. . but thereof quaere . a county palatine is of so high a nature , that whereas all pleas touching the life or maihem of a man , called pleas of the crown , are usually held and sped in the kings name , and cannot be passed in the name of any other ; the chief governours of these , by special charter from the king , heretofore did send out all writs in their own name , and did all things touching iustice as absolutely as the prince himself in other counties , onely acknowledging him to be their superiour and soveraigne . but by the statute of h. . cap. . this power was much abridged , which fee , and cromp. jurisdict . . besides these two sorts of counties , there are also counties corporate , as appears by the statute of ed. . . and these are certain cities or ancient boroughs of the land , upon whom the princes of this nation have bestowed such extraordinary liberties , as london , york , chester , gloucester , and many others . county in another signification is used for the county court which the sheriff keeps every moneth within his charge , either by himself or his deputy . see for this dal ● on s office of sheriffs . of these counties or shires there are reckoned to be in england , besides the twelve in wales . court. court is diversly taken : sometimes for the house where the king remains with his ordinary retinue ; and also the place where iustice is judicially ministred , of which you may find several sorts in cromp. jurisd . well described . and of those the greater part are courts of record ; some are not , and therefore accounted base courts in comparison of the others . besides these , there are also courts christian , so called , because they handle matters chiefly appertaining to christianity , and such as without good knowledge in divinty cannot be well judged of ; being heretofore held by archbishops and bishops , as from the pope of rome ; but after his ejection they held them by the kings authority , by virtue of his magistracy , as the admiral of england holds his court : whence it proceeds , that they send out their precepts in their own names , and not in the kings , as the iustices of the kings courts do ; and therefore as the appeal from those courts did lie to rome , now by the stat. of h. . cap. . it lies to the king in his chancery . court-baron . court-baron is a court that every lord of a mannor hath within his own precincts . of this court and court-leet kitch . hath writ a learned book . this court , as it seems in cok. lib. . fol. . fs twofold : and therefore if a man having a mannor in a town grants the inheritance of all the copyholds therein to another , this grantee may hold a court for the customary tenants , and accept of surrenders to the use of others , and make admittances and grants . the other court is of free-holders , which is properly called the court-baron , wherein the suitors , that is , the free-holders , are iudges ; whereas of the other court the lord or his steward is iudge . coutheutlaugh . coutheutlaugh is he that wittingly receives a man utlawed , and cherishes or hides him ; in which case he was in ancient time subject to the same punishment as the man utlawed was . br. l. . tr . . c. . nu . . it is compounded of couth , i. known , and utlaw , outlawed , as we now call them . cranage . cranage is a liberty to use a crane for drawing up wares or goods out of any ship , boat , or barge , at any creek or wharf , and to make profit of it . it is used also for the money that is taken for that work . creditor . creansor or creditor comes of the french coryance , that is , confidence or perswasion ; and it signifies him that trusts another with any debt , be it money , wares , or other things . this word is used in the old n. b. in the writ of audita querela . f. . a. creek . creek is that part of a haven from whence any thing is landed or disburthened out of the sea. and this word is used in the stat. el. cap. . and h. . cap. . &c. croft . croft is a little close or pightle adjoyning to an house , used either for pasture or arable , as the owner pleases . and it seems to be derived from the old word creaft , that is handicraft , because these lands are for the most part manured with the best skill of the owner . cucking-stool . cucking-stool is an engin invented for the punishment of scolds and unquiet women ; and it was called in old time a tumbrell , as appears by lamb. in his eirenarc . l. . c. . and by the cases and iudgements in eire , in the time of ed. . a pillory and a tumbrell are appendant to a leet , without which right cannot be administred to the parties within the view . keloway , fol. . b. and in the stat. h. . ca. . it is called trebuchett . cui ante divortium . cui ante divortium is a writ that lies when alienation is made by the husband of the wifes land , and after divorce is had between them ; then the woman shall have this writ , and the writ shall say , whom she before the divorce might not gain-say . cui in vita . cui in vita is a writ that lies where a man is seised of lands in fee-simple , fee-tail , or for life , in right of his wife , and aliens the same , and dies ; then she shall have this writ to recover the land. and note , that in this writ her title must be shewed , whether it be of the purchase , or inheritance of the woman . but if the husband alien the right of his wife , and the husband and the wife die , the wifes heir may have a writ of sur cui in vita . cuinage . cuinage . see cuynage . cuntey . cuntey cuntey is a kind of trial , as appears by bract. in these words ; the matter in this case shall be ended by cuntey cuntey , as between coheirs , l. . tr . . cap. . and again in the same place ; in a writ of right the business shall be determined by cuntey cuntey . and thirdly , l. . tr . . c. . the cause shall be tried by writ of right , neither by battel , nor by the great assise , but by cuntey cuntey only ; which seems to be as much as by ordinary iury. curfew . curfew comes of two french words , couvrir , to cover , and feu , fire . it is used with us for an evening peal , by which the conqueror willed every man to take warning for the taking up his fire , and putting out his light : so that in many places at this day , when a bell is customably rung toward bed-time , it is said to ring curfew . curia avisare vult . curia avisare vult is a deliberation which the court purposes to take upon any difficult point of a cause , before iudgement be resolved on . for which see the new book of entries , verbo curia , &c. curia claudenda . is a writ or action to compell another to make a fence or wall , which the defendant ought to make between his land and the plaintiffs . currier . currier is one that dresses or liquors leather , and is so called of the french word cuir , id est , corium , leather . the word is used in all the statutes made for the good making of leather , as in jac cap. . &c. cursiter . cursiter is an officer or clerk belonging to the chancery , who makes out original writs . & h. . cap. . they are called clerks of course in the oath of clerks of the chancery , appointed anno ed. . stat. . there are of them twenty four , to each of whom is allotted certain shires , into which they make out such original writs as are by the subject required , and are a corporation among themselves . curtesie of england . curtesie of england is , where a man takes a wife seised in fee-simple , or fee-tail general , or seised as heir of the tail special , and hath issue by her , male or female ; be the issue dead or alive , if the wife die , the husband shall hold the land during his life , by the law of england . and it is called tenant by the curtesie of england , because this is not used in any other realm but only in england . if the infant was never alive , then the husband shall not be tenant by the curtesie ; but if the issue be born alive , it suffices . if the woman be delivered of a monster , which hath not the shape of mankind , this is not issue in law : but though the issue hath some deformity or defect in the hand or foot , and yet hath humane shape , if suffices to make the husband tenant by the curtesie . and in some cases the time of the birth is material , and in some not . therefore , if a man marries a woman inheritrix , who is great with child by him , and the issue is ●● pt forth of her belly alive ; there he shall not be tenant by the curtesie , for this ought to begin by the issue , and consummate by the death of the woman , and the estate of the tenant by the curtesie ought to avoid the immediate discent . but if the husband hath issue by his wife , and after land discends to the woman , be the issue then dead or alive , he shall be tenant by the curtesie ; for the time of the birth of the issue is not material , if it be in the life of the woman . if lands be given to a woman and the heirs males of her body , and she takes an hu ● band , and hath issue a daughter , and dies ; the husband shall not be tenant by the curtesie , for the issue cannot by any possibility inherit the same tenements . also as a woman alien , marrying one of the kings subjects , shall not be endowed , in the same manner a man alien shall not be tenant by the curtesie . also if a man seised of land in right of his wife be attainted of felony , having issue , and then purchases the kings pardon , and after his wife dies ; there he shall not be tenant by the curtesie : but if he hath issue by his wife born after the pardon , in such case he shall . curtilage . curtilage is a garden , yard , field , or piece of void ground lying near and belonging to the messuage , west . part . . sect . . and so it is used h. . c. . eliz. coke l. . fol. . customary tenants . customary tenants are such tenants as hold by the custome of the mannor , as their special evidence . custome . custome may be defined to be a law or right not written , which being established by long use , and consent of our ancestors , hath been and dayly is put in practice . custome is either general or particular . general is that which is current through england , whereof you may read in doctor and student , l. . c. . many very worthy to be known . particular is that which belongs to this or that county , as gavelkind to kent ; or to this or that lordship , city , or town . custome differs from prescription , because custome is common to many , and prescription , by the opinion of some , is particular to this or that man. again , prescription may be for a shorter time than custome , sc . for five years , or less : as if a fine be duly levied of lands or tenements , and be not gainsaid within five years , this is a bar to all claim for ever . if a man omits his continual claim for a year and a day then the tenant in possession prescribes an immunity against the entry of the demandant and his heir , fitzh . nat. brev. . out of our statutes you may have greater diversity ; so that this seems to be a true saying , that prescription is an exception founded upon so long time gone and past as the law limits for the pursuit of any action . an example may be taken out of the statute of h. . c. . which enacts that in all actions popular information shall be made within three years after the offence committed , otherwise to be of no force . custome is also used for the tribute or toll that merchants pay to the king , to carry in and out merchandizes , e. . stat. . c. . in which signification it is called custuma in latine , reg. orig. . a. . a. and lastly , for such services as tenants of a manor owe unto their lord. old book of entries , word custome . see consuetud . & servitiis . custos brevium . custos brevium is the chief clerk belonging to the court of common pleas or kings bench , whose office is to receive and keep all the writs , and to put them upon files , every return by it self , and at the end of every term to receive of the prothonotaries all the records of nisi prius , called the postea . the custos brevium also makes entry of writs of covenant , and the concord upon every fine , and makes out exemplifications and copies of all the writs and records in his office , and of all the fines levied . the parts of the fines , after they are ingrossed , are divided between the custos brevium and the chirographer : whereof the chirographer keeps always the writ of covenant , and the note ; the custos brevium keeps the concord , and the foot of the fine , upon which foot the chirographer causes the proclamations to be indorsed when they are all proclaimed . custos rotulorum . custos rotulorum is he that hath the keeping of the rolls or records of the sessions of the peace , and , as some think , of the commission of the peace it self , lam. l. . c. . p. . he is always iustice of the peace and quorum in the county where he hath his office ; and by his office he is rather termed an officer or minister , then a iudge , because the commission of the peace lays this special charge by express words upon him , that he should cause the writs , precepts process and indictments aforesaid to come and be before him and his fellow-justices at the days and places aforesaid . gardian of the spiritualties . gardian of the spiritualties is he that exercises the spiritual and ecclesiastical iurisdiction of any diocess during the vacancy of the see ; the appointment of whom by the canon law pertains to the dean and chapter , lest in the vacancie of the see some innovation should be introduced . but in engl. the archbishop of the province hath it by prescription . howbeit many deans and chapters ( a ● m. gwyn saith in his preface to his readings ) challenge this by ancient charters from the kings of this land. cuynage . cuynage is a word used in the statute of h. . c. . for the making up of tinne into that fashion as it is used to be framed , for the better carriage of it into other parts . d. dammage . dammage is part of that which the iurors are to enquire of , in giving their verdict for the complainant or demandant in an action real or personal . for after the verdict given upon the principal matter , they are also asked their consciences touching costs , which are the expences of the suit , and dammages , which contain the prejudice which the plaintiff or demandant hath suffered by means of the wrong doue him by the defendant or tenant . and forasmuch as iustice and reason require , that when the life , credit , lands , goods , corruption of bloud , and all that a man hath to forfeit in this world , are put in peril without just cause , but only upon the malicious accusation of another by appeal , that the appellee should have satisfaction therefore against his false accuser , and if he hath not sufficient , then against him or them that abbetted or procured him to pursue the appeal : therefore the common law gave dammages to the defendant in an appeal , and assigned him a means for the recovery thereof , when he was acquitted of the felony , as it is e. . . but forasmuch as the dammages against the procurors and abbettors were to be recovered by original writ , that is , by writ of conspiracy , and not otherwise , which was not so speedy remedy as the heinous quality of the wrong required ; the statute of westm . the . an. ed. . cap. . for the more expeditious redress thereof was ordained . but if the defendant barrs the plaintiff of his appeal then he cannot recover dammages by the said statute against the plaintiff , except the barr be such as acquits the defendant of the felony . and if the defendant pleads that the appellant is a bastard , or hath an elder brother , or like pleas in barre , and thereby barrs the plaintiff ; yet he shall not recover dammages against him , because the defendant may be indicted again of the same felony , and attainted , notwithstanding any of those pleas ; for by them the innocency of the defendant is not tried , and therefore he shall not have dammages . ass . pl. . the same law is , if the defendant barrs the appellant by demurrer in law : and so it is , if in appeal of the death of a man the defendant pleads to the issue , and it is found by verdict that he killed the man in his own defence , or by chance-m ● dley ; in these cases he shall not recover dammages . but if the defendant in appeal hath the release of the appellant , or the kings pardon , and will wave them , and plead not guilty , and is acquitted ; in this case he shall recover dammages . this word dammage is taken in the law in two several significations ; the one properly and generally , the other strictly and relatively . properly , as it is in cases where dammages are founded upon the statute of hen. . cap. . and hen. . cap. . where costs are included within this word dammages ; for damnum in its proper and general signification is said a demendo , when a thing by diminution is made worse ; and in this sense costs of suit are dammages to the plaintiff , for by them his substance is diminished . but when the plaintiff declares the wrong done to him to the dammage of such a summe , this is to be taken relatively for the wrong which is passed before the writ brought , and are assessed by reason of the trespass aforesaid , and cannot extend to costs of suit which are future , and of another nature . see co. l. . f. , . dammage fesant . dammage fesant is , when a stranger's beasts are in another mans ground , without licence of the tenant of the ground , and there do feed , tread and otherwise spoil the corn , grass , woods , and such like : in which case the tenant whom they dammage may therefore take , distrain and impound them , as well in the night as in the day . but in other cases , as for rent and services , and such like , none may distrain in the night . danegeld . danegeld is , to be quit of a certain tribute which the danes did levie in england : also the tribute it self . this began first in the time of king etheldred , who being sore distressed by the continual inivasson of the danes , to purchase peace , was compelled to charge his county and people with great payments ; for he first gave them at five several payments lib and afterwards granted them lib. yearly . darreine presentment . darreine presentment ; an assise thereof lies where i or mine ancestors have presented a clerk to a church , and after , the church being void by the death of the said clerk , or otherwise , a stranger presents his clerk to the same church in disturbance of me . and how it is otherwise used , see bract. lib. . tract . . regist . orig . fol. . if a husband and wife present to an advowson in right of the wife , which is appendant to the mannor of the wife , and after the husband aliens an acre , parcel of the manor , with the advowson in fee , to a stranger , and dies , and after the stranger presents , and then aliens the acre to another in fee , saving the advowson to himself , and after the church is void ; there the wife shall present , and if she be disturbed , she shall have an assise of darreine presentment ; because the advowson was severed from the acre . but if the advowson was appendant to the acre , then the wife ought to recover the acre before she presents to the advowson . fitz. nat. brev. . darrein continuance . is when the defendant or tenant ( pendente placito ) pleads new matter done after the last continuance of the plea. see thelwel . . & . cro. . dean and chapter . dean and chapter is a body corporate spiritual , consisting of many able persons , as namely the dean ( who is chief ) and his prebends , and they together make the corporation . and as this corporation may jointly purchase lands and tenements to the use of their church and successors ; so likewise every of them severally may purchase to the use of himself and his heirs . and as there are two foundations of cathedral churches in england , the old and the new ; ( the new are those that king henry the eighth , upon suppression of abbeys , transformed from an abbot , or prior and covent , to dean and chapter : ) so there are two means of creation of these deans : for those of the old foundation are brought to their dignity like bishops ; the king first sending his congee deslire to the chapter ; the chapter then chusing , the king yeilding his royal assent ; and the bishop confirming , and giving his mandate to instal him . those of the new foundation are by a shorter course enstalled by the king's letters patents , without other election or confirmation . this word is also applyed to divers that are the chief of certain peculiar churches or chappels , as the dean of the kings chappel , the dean of the arches , the dean of saint george's chappel in windsor , &c. debet & solet , see custom & prescription . debet & solet are words used in the old natura brevium , fol. . the writ of secta molendini , being in the debet & solet , is a writ of right , &c. and again , fol. . a writ of quod permittat may be pleaded in the county before the sheriff , and may be in the debet & solet , or the debet only , as the demandant claims . wherefore note , that these writs that are brought in such sort have these words in them , as formal words not to be omitted . and according to the diversity of the case , the debet & solet are used , or the debet only , as if a man by writ sues to recover any right , whereof his ancestor was disseised by the tenant or his ancestor ; then he uses only the word debet in his writ , and it is not apt to use solet , because his ancestor was disscised , and the custom discontinued : but if he sues for any thing that is first denied him , then he hath both these words , debet & solet ; because his ancestor before him and himself have usually enjoyed the thing for which he sues , as suit to the mill , or common of pasture , until this present refusal of the tenant . reg. orig . fol. . a. debet & detinet . debet & detinet : much may be said of these words that hath been spoken of the words next afore . as , if a man be bound to another , and makes his executor and dies , and the mony grows due in the time of the testator , and afterward the executor pays it not ; the action brought against him therefore shall be in the detinet only : and so in all actions brought by executors as executors , the writ shall be in the detinet only , although the duty accrued in their own time , because the thing or damages recovered shall be assets . but if lessee for years rendring rent makes his executors , and dies , and the rent incurs after the death of the testator ; there an action of debt shall be brought in the debet & detinet : for when an executor or administrator takes the profits , nothing shall be assets but the profits above the rent . as if the land is worth ten pound by the year , and five pound is reserved ; in this cas ● nothing shall be assets but the five pound above the rent , and therefore the writ shall be for the rent in the debet & detinet . cokel . . fol. . decem tales . decem tales . see tales . decies tantum . decies tantum is a writ that lies where a iuror in any enquest takes money of the one part or other , to give his verdict ; then he shall pay ten times as much as he hath received : a ● d every one that will sue may have action , and shall have the one half , and the king the other . but if the king in such case release by his pardon to such a iuror , yet that shall be no bar against him that brings the action , who shall recover the other half , if this action be commenced before the pardon of the king ; but if the pardon be before any action , it is a bar against all men . and the same law is of all other actions popular , where one part is to the king , the other to the party that sues . and the embracers , who procure such enquests , shall be punished in the same manner , and they shall have imprisonment a year . but no iustice shall enquire thereof ex officio , but only at the suit of the party . deciners . deciners are such as were wont to have the oversight and command of ten free burgs , for preserving the kings peace ; and the limits or circuit of their iurisdiction was called decenna . bracton l. . tract . . c. . also you may read flet. l. . c. . and reg. orig . fol. . b. these seemed to have large authority in the saxons time , taking knowledge of causes within their circuit , and redressing wrongs by way of iudgment ; as you may read in the laws of king edward , set out by lambert , num . . also there is mention of these in britton cap. . who saith in the kings person ( as he writes his whole book ) in this manner : we will that all such as are fourteen years of age shall make oath that they shall be sufficient and loyal unto vs , and that they will not be felons , nor assenting to felons , and that all be professed to be of this or that dozein , and make or offer surety of their behaviour by these or those deciners : except religious persons , clerks , knights , and their eldest sons , and women . yet the same author in his . chap. near the end saith , that all at the age of years or above are punishable for not coming to the sheriffs tourn , excepting earls , prelates , barons , religious persons , and women . the same law is where the deciners make presentment , that a felon is taken for theft , and delivered to the sheriff . and kitchen out of the register , and britton saith thus , religious persons , clerks , knights or women , shall not be deciners , fol. . whence it may be gathered , that this word implies nothiny else but such a one as by his oath of loyalty to his prince is settled in the combination or society of a dozein , for it is not usual at this day to find surety so to do . and now a dozeine seems to extend so far as the lcet extends , because in leets only this oath is administred by the steward , and taken by such as are of the age of twelve years and upward , dwelling within the precinct of the leet where they are sworn . fitzh . nat. brev. . a. the particulars of this oath you may read in bracton , l. . tract . . c. . num . . where he puts dwon fifteen years for the age of those that are sworn to the kings peace ; but l. . tract . . c. . num . he names twelve years . see inlaugh . from which premisses may be observed the difference detween the ancient and these our times in this point of law and government , as well for the age of those that are to be sworn , as also that deciner is not now used for the chief man of a dozein , but for him that is sworn to the kings peace ; and lastly , that now there are not any dozeins , but leets ; and that ordinarily no man gives other security for keeping the kings peace but his own oath , and therefore no one shall answer for the transgression of another , but every one for himself . declaration . declaration is a shewing in writing the grief and complaint of the demandant or plaintiff against the tenant or defendant , wherein he supposes to have received wrong . and this declaration ought to be plain and certain , both because it impeaches the defendant , and also compels him to make answer thereto . but note , that such declaration made by the demandant against the tenant in an action real is properly called a count. note , that the count or declaration ought to contain demonstration , declaration , and conclusion . and in demonstration are contained three things , ( that is ) him who complains , against whom , and for what matter . and in the declaration there ought to be comprised , how and in what manner the action rose between the parties , and when , and what day , year , and place , and to whom the action shall be given . and in the conclusion he ought to averre and profer to prove his suit , and shew the dammages which he hath sustained by the wrong done him . de deoneranda pro rata . portionis . de deoneranda , &c. is a writ that lies where one one is distreined for rent , that ought to be paid by others proportionably with him . fitz. nat. brev. fol. . dedimus potestatem . dedimus potestatem is a writ that lies where a man sues in the kings court , or is sued , and cannot well travel , then he shall have this writ directed to some iustice , or other discreet person in the countrey , to give him power to admit some man for his atturney , or to levy a fine , or to take his confession , or his answer , or other examination , as the matter requires . defalt . defalt is an offence in omitting that which we ought to do ; and most commonly taken for non-appearance in court at a day assigned . bract. lib. . tract . . and fleta lib. . cap. . defamation . defamation is when a man speaks slanderous words of any other man , court of iustice , magistracy , or title of land : for which the party shall be punished according to the nature and quality of his offence ; sometimes by action upon the case for slander , at the common law , and other times in the ecclesiastical court. as if a man contrive any false news , or horrible and false lies of prelates , dukes , earls , &c. then an action de scandalis magnatum will lie against him by the statute of r. . cap. . and this being proved , the party offending shall be grievously punished . but for words of defamation against a private man , there the party grieved ▪ shall have his action upon the case for the slander , and shall recover in dammages according to the quality of the fault : wherein the quality of the person who is so defamed is much to be considered . but for defamations determinable in the spiritual court , they ought to have three incidents : first it ought to concern matter meerly spiritual , and determinable in the ecclesiastical court ; as for calling him heretick , schismatick , adulterer , fornicator , &c. secondly , that it concern matter meerly spiritual only : for if such defamation concern any thing determinable at the common law , the ecclesiastical iudge shall not have conusance thereof : as if a divine is to be presented to a benefice , and one ( to defeat him thereof ) saith to the patron , that he is an heretick , or a bastard , or that he is excommunicated , whereby the patron refuses to present him , and he loses his preferment ; he shall have an action upon the case for these defamations , tending to such an end . also if a woman be bound that she shall live continent , for if a lease be made to her so long as she shall live chaste ; in these cases incontinency shall be tryed by the common law. thirdly , although such defamation be meerly and only spiritual , yet he that is defamed cannot sue there for amends or dammages , but the suit ought to be only for punishment of the fault , for the soul's health of him that so offends . and as for the slander of a title to land , if a. saith that b. hath right in the lands of c. whereby c. is damnified , then he may have an action upon the case for the defamation of his title , against a. and although b. hath a colourable title , yet a. shall be punished , forasmuch as he hath taken upon him knowledge of the law , and medled in a matter which concerned him not . but if a man saith , that he himself hath right to the land of another ; in this case no action for defamation lies , although he knows his title to be false , cok lib. . fol. . defeisance . defeisance is a condition relating to a deed , as an obligation , recognisance , or statute , which being performed by the obligor , or recognisor , the act is disabled and made void , as if it had never been done . and there is no warrantie , recognisance , rent-charge . annuity , covenant , lease for years , or such like , but that they may by a defeasance , made with the mutual consent of all those who were parties to the creation thereof , by deed be adnulled , discharged , and defeated . and the difference between a proviso or condition in deed and a defeasance is in this , that the proviso or condition is annexed or inserted in the deed or grant ; whereas a defeasance is usually a deed by it self concluded and agreed on between the parties , and having relation to another deed. and therefore if the condition of an obligation be repugnant to the deed , the condition is void , and the obligation good : as if the condition be , that he shall not sue the obligation , this is void , as well as it is of a feoffment , upon condition that the feoffee shall not take the profits . but a defeasance is a grant that is made after the obligation , to defeat the same obligation ; and this is good though it be repugnant , and so not like a condition . h. . fol. . b. for the form and manner of defeasances according to the diversity of the case , see west . part . . symb. lib. . sect . , , &c. defence . defence is that which the defendant ought to make immediately after the count or declaration made , that is , that he defends all the wrong , force and dammage , where and when he ought ; and then to proceed farther to his plea , or to imparl . and note , that by defending the force and wrong he doth excuse himself of the wrong against him surmised , and makes himself party to the plea ; and by defending the dammage , he affirms the plaintiff able to be answered unto . and for the residue of the defence , he accepts the power of the court to hear and determine their pleas of this matter . for if he will plead to the iurisdiction , he ought to omit in his defence these words , ( ou & quant il devera : ) and if he will shew any disability in the plaintiff , and demand iudgment if the party shall be answered unto ; then he ought to omit the defence of the dammage . defendant . defendant is he that is sued in action personal , who is called tenant in an action real . defendemus . defendemus is an ordinary word in a feoffment or donation , and hath this force , that it binds the donor ▪ and his heirs to defend the donee , if any man go about to lay any servitude upon the thing given , other then is contained in the donation . braction lib. . cap. . num . . see also warrantizantibus . defender of the faith. defender of the faith is a peculiar title given to the king of england by the pope , as catholicus to the king of spain , and christianissimus to the french king. it was first given by leo. x. to k. hen. . for writing against martin luther , in behalf of the church of rome stow's annals p. . deforceor . deforceor is he that overcomes and casts out with force ; who differs from a disseisor , first in this , that a man may disseise another without force , which act is called simple dissesin , britton cap. . then because a man may deforce another that never was in possession ; as if many have right to lands as common heirs , and one keeps them out , the law saith , that he deforces them , though he never disseised them . old nat. brev. fol. . if tenant in tail makes a feoffment in fee by which the feoffee is in , and afterward the tenant in tail dies , and his issue sues a writ of formedon against the feoffee ; the writ shall say , and also the count , &c. that the feoffee wrongfully deforced him &c. though he did not disseise him , because he entred in the life of the tenant in tail , and the heir had no present right . lit fol. . and a deforceor differs from an intrudor , because a deforceor keeps out the right heir , as aforesaid ; and a man is made an intrudor by a wrongful entry only in lands or tentments void of a possessor . bract. lib. . cap. . and because force and forcible entry into lands is so opposite to the peace and iustice of the realm , and a dishonour of the king and his crown , and discredit of the law , that any person by birth and oath obliged to the obedience of the king and his laws , should presume of his own authority by force and strong hand to resist them both , by violent intrusion into the possession of another before the law hath decided his tttle therein ; therefore divers statutes have been made for the restraint and reformation of these abuses ; as , among others , the stat. of r. . ca. . where the king defends any entry into lands or tenements ; but in case where entry is given by the law , and then not with strong hand , or with a multitude of people , but onely in a peaceable manner . see more of this in po ● lt . de pace reg. f. . , &c. degrading . degrading . see disgrading . delegates . are commissioners appointed by letters patents to determine appeals upon things testamentary or matrimonial , in which sentence was given . demaines . demaines or demesnes , generally speaking , are all the parts of any mannor which are not in the hands of freeholders , though they be held by copy-holders , lessees for years or for life , as well as tenants at will. and the reason why copyhold is accounted demesnes is , because they who are tenants to it are adjudged in law to have no other estate but at the will of the lord , so that it is still reputed to be in a manner in the lords hands : yet in common speech that is ordinarily called demesnes which is neither free nor copy . and this word demesne is sometimes used in a more special signification , and is opposite to frank-fee ; as those lands which were in the possession of edward the confessor , are called ancient demesne , and all others are called franck-fee , kitch . fol. . and the tenants which hold any of those lands are called tenants in ancient demesn , the other tenants in frank-fee . and no common person hath any demesnes in the simple acceptation of the word , because there is no land but depends mediately or immediately of the crown , that is , of some honor or other belonging to the crown , and not granted in fee to any inferiour person ; and therefore when a man in pleading will signifie his land to be his own , he saith , that he is or was seised thereof in his demesne as of fee , littleton , f. . whereby it appears , that though his land be to him and his heirs for ever , yet it is not true demesne , but depending upon a superiour lord , and holding by service , or rent in lieu of service , or by service and rent together . demaines ; according to the common speech , are only understood the lords chief mannor-place , which he and his ancestors have time out of mind kept in their own hands , with all buildings and houses , meadows , pastures , woods , arable lands , and such like therewith occupied . demand . demand is a word of art , and if one release to another all demands , this is , ( as littleton , fol. . a. saith ) the best release to him to whom the release is made that he can have , and shall most enure to his advantage ; for by it not onely all demands , but also all causes of demands are released . and there are two manner of demands , that is , in deed , and in law. in deed , as in every praecipe there is expresse demand ; and therefore in real actions he is called demandant , in personal plaintiff . in law , as every entry in land , distresse for rent , taking or seisure of goods , and such like acts in the countrey , which may be done without any words or demands in law. as a release of suits is more large then a release of quarrels or of actions ; so a release of demands is more large and beneficial than either of them , for by it is released all that which by the others is released , and more . by release of all demands , all freeholds and inheritances executory are released : by release of all demands to the dissetsor , the right of the entry in the land , and all that is contained therein , is released : by release of all demands , all executions are released ; and he that releases all demands , excludes himself from all actions , entries , and seisures . littleton , fol. . holds , that if tenant in tail enfeoffs his vncle , who enfeoffs another in fee with warranty ; if after the feoffee by his deed releases to the vncle all manner of demands , by such release the warranty , which is a covenant real and executory , is extinct : and the reason is , because that by release of demands all the means and remedies , and their causes , which any hath to lands , tenements , goods , chattels , &c. are extinct , and , by consequence , the right and interest it self unto the thing . yet a release of all demands doth not extend to such writs by which nothing is demanded , neither in deed nor in law , but lie only to relieve the plaintiff by way of discharge , and not by way of demand ; as a release of all demands is no bar in a writ of error to reverse an outlawry , and so of such like . see edw. . . coke . lib. . fol. , . demandant . demandant is he that sues or complains in an action real for title of land ; and he is called plaintiff in an assise , and in an action personal , for debt , trespass , deceit , detinue and such like . demurrage . is called the time when a shi ● lies idle in a port or harbour or on the sea in a calm . demurrer . demurrer is when any action is brought , and the defendant pleads a plea , to which the plaintiff says that he will not answer , for that it is not a sufficient plea in the law ; and the defendant avers the contrary , that it is a sufficient plea ; and thereupon both parties submit the cause to the iudgement of the court : which is called a demurrer , for that they go not forward in pleading , but rest upon iudgement in that point ; and is called in latine records , moratur in lege . for in every action the difference consists either in deed or in law. if in fact , it is tried by the iury ; if in law , then the matter is either plain , or difficult and rare : if it be plain , then iudgment is presently given ; but when it is hard and doubtfull , then is stay made , and time taken either to consider farther thereupon by the iudges , to agree if they can , or otherwise for all the iustices to meet together in the exchequer-chamber , and , upon hearing of that which the serjeants shall say unto both parts , to advise and determine what is law ; and that which is there concluded on by them shall stand firm , without further remedy . there is also a demurrer to evidence given to a iury upon tryal of an issue , plo. com. . rast . entr. . half bloud . half bloud is , when a man marries a wife , and hath issue by her a son or daughter , and the wife dies , and then he takes another woman , and hath by her also a son or daughter : now these two sons are after a sort brothers , or as they are termed , half-brothers , or brothers of the half bloud , that is , brothers by the fathers side , because they had both one father , and are both of his bloud , and not brothers at all by the mothers side , nor of bloud nor kin that way ; and therefore the one of them cannot be heir to the other : for he that will claim as heir to one by discent , must be of whole ● bloud to him from whom he claims . in the same manner it is , if a woman have divers issues by divers husbands , who are called brothers by one mother . denariata terrae . denariata terrae . see fardingdeal . denelage . denelage is the law that the danes made here in england , cut of which and merchenlage and westsaxonlage william the conquerour composed certain ordinances to be observed by his subjects . denizen . denizen , or donaison , is , where au alien born becomes the kings subject , and obtains the kings letters patents to enjoy all priviledges as an english-man : but if one be made denizen , he shall pay customes and divers other things as alien , as it appears by divers statutes thereof made . it seems that donaison is the true name , so called , because that his legitimation is given to him , and not denizen , as derived from deins nee . and the law is so precise in the making of denizens , that the king cannot grant power to any other to make aliens born denizens , it is by the law so inseparably and individually annexed to his royal person ; for the law esteems it an high prerogative , to make aliens subjects of the realm , and capable of lands and inheritances , as natural born subjects are . and therefore the statute of h. . c. . which reunites many of the most ancient prerogatives and regal flowers of the crown , makes no mention of any authority to make letters of denization to be resumed , for that never any claimed it be any pretext whatsoever , it being so high a point of prerogative . see cok. l. . calvins case . deodand . deodand is , when any man by misfortune is slain by a horse , cart , or any other thing that moves to further his death ; such thing which at the time of his misfortune did move ▪ or cause his death shall be sorfeit to the king , and that is called deodand ; and that pertains to the kings almoner , for to dispose in alms and deeds of charity . but it is not forfeited untill the matter be found of record , and therefore they cannot be claimed by prescription : and the iury that finds or presents the death by such misadventure , ought also to find and appraise the deodand . co. l. . f. . if a horse strikes one , and afterwards the owner sells the horse , and then the party that was stricken dies of the stroke ; in this case the horse shall be forfeited as a deodand , notwithstanding the sale ; for relation shall be had to the stroke which was before the sale . plow . com. . b. what move to death , or kill the dead , are deodand and forfeited . departure from a plea or matter . departure from a plea or matter is , where a man pleads a plea in bar , and the plaintiff replies thereto , and he after in his rejoynder pleads or shews another matter , contrary , or not pursuing to his first plea ; that is called a departure from his bar. as if a man pleads a general agreement in bar , and in the rejoynder he alledges an especial agreement ; this shall be adjudged a departure in pleading . so in trespass , if the defendant will plead a discent to him , and the plaintiff saith , that after this the defendant enfeoffed him , and the defendant saith , that this feoffment was upon condition , for the breach whereof he entred , this is a departure from the bar , for it is a new matter . see plow . com. f. . & . departure in despight of the court. departure in despight of the court is , when the tenant or defendant appears to an action , and hath a day over in the same term , or is called after , though he had no day given him , so that it be in the same term , if he do not appear , but make default , it is a departure in despight of the court , and therefore he shall be condemned . and it is to be observed , that departure in despight of the court is always of the part of the tenant or defendant , and the entry thereof is , quod praedictus a , licet solenniter exactus , non revenit , sed in contemptum curiae recessit , & defaltam fecit : and this is when in judgement of the law he is present in court , and being demanded , departs in despight of the court ; this amounts to a bar in respect of the despight and contempt of the court. see cok. lib. . f. . deprivation . deprivation is , when an abbot , bishop , parson , vicar , prebend , &c. is deprived or deposed from his preferment for any matter in fact or in law. as if a miscreant or schismatick be presented , admitted , and inducted , there is good cause of deprivation : so if a meer lay-man be presented , admitted , instituted , and inducted , yet he shall be deprived : or if the incumbent hath plurality of benefices ; or subscribe not to the articles of religion , according to the stat. of eliz. cap. . by the statute of h. . cap. . it is enacted , that if any person , having a benefice with cure of souls of the yearly value of eight pounds , or more accepts or takes any other with cure of souls , and be instituted and inducted into the possession thereof ; the first benefice shall be void , and the incumbent in this case is outed or deprived by cession . in which case the bishop needs not give notice to the patron , because the deprivation is by act of parliament , to which every one is party , and ought to take notice at his peril . but otherwise it is if the first church be not of the yearly value of eight pounds , for then it is void meerly by the ecclesiastical law. see co. l. . f. . and l. . b deputie . deputie is he that exercises in another mans right either office or any other thing ; and his forfeiture or misdemeanor shall cause the officer , or him whose deputy he is , to lose his office. but a man cannot make his deputy in all cases , except the grant so be : as if it be with these or such like words , to exercise or use by himself or his sufficient deputy ; or if the words go farther , to himself or his deputy , or the deputy of his deputy , then he may make a deputy , and his deputy also may make a deputy , or else not . as if the office of a parkership be granted to one , he cannot grant this over to another , because it is an office of trust and confidence , and shall not be forfeited . and there is great diversity between deputy and assignee of an office : for an assignee is a person that hath an estate or interest in the office it self ; and doth all things in his own name , for whom his grantor shall not answer , unless it be in especial cases ; and a deputy hath not any estate or interest in the office ; but is only the shadow of the officer , and doth all things in the name of the officer himself , and nothing in his own name , and for which his grantor shall answer : and where an officer hath power to make assigns , he may implicitely make deputies , for , he that may do more it ought not to be held unlawful for him to do less ; and therefore when an office is granted to one and to his heirs , by this he may make assigns , and by consequence he may make deputies . the king by his letters pattents commits to the sheriff the custody of the county , without express words of making deputy ; and yet he may make an vnder sheriff , viz. his deputy . so where before the statute of quia emptores terrarum , the king or other lord had given lands to a knight , to hold of him by knights service , that is , to go with his lord ( when the king makes a voyage royal to subdue his enemies ) for days , well and conveniently arrayed for the war ; yet he may find another able person : howbeit in the one case it concerns the publick administration and execution of iustice in time of peace ; and in the other , the publick defence of the realm in time of war. see cok. l. . le countee de salops case . dereine . dereine is taken in divers senses , and seems to come from the french disarrayer , that is , to confound or put out of order ; or else the norman word desrene , which is the denial of a mans own act ; and lex deraisnia was the proof of a thing which one denies to be done by himself , and his adversary affirms it , defeating and confounding the assertion of his adversary , and shewing it to be without and against reason or probability . and in our law it is diversly used . first generally , to prove ; as , dirationabit jus suum haeres propinquior , glanvile l. . c. . and he , l. ▪ c. . saith , habeo probos homines qui viderunt & audiverunt , & parati sunt hoc dirationare . in the same manner bracton uses it , habeo sufficientem disratiocinationem & probationem ▪ by the statute of h. . cap. . ioyntenants and tenants in common shall have aid , to the intent to deraigne the garranty paramount . so plo. in manxels case , fol. . b. hath this case , if a man hath an estate in fee with warranty , and enfeoffs a stranger with warranty , and dies , and the feoffee vouches his heir ; the heir shall deraigne the first warranty . also this word is used when religious men forsake their orders and professions ; as in kitch . fol. . b. if a man makes a lease for life upon condition , that if the lessor dies without issue , then the lessee shall have fee , the lessee enters in religion , and then the lessor dies without issue , and after the lessee is deraigned ; he shall not have fee , insomuch as at the time of the condition the fee cannot vast in him . de son tort demesne . de son tort demesne seem to be certain words of form in an action of trespasse , used by way of reply to the plea of the defendant : as if a sues b in an action of trespasse , and b answers for himself , that he did this which a calls trespass by the commandment of c his master ; a saith again , that b did this of his own wrong , without that that c commanded him in such manner and form , &c. debt . debt is a writ that lies where any summ of money is due to a man by reason of account , bargain , contract , obligation , or other especialty , to be paid at a certain day , which is not paid ; then he shall have this writ . but if any money be due to any lord by his tenant for any rent-service , the lord shall never have action of debt for that , but he must distrain for it . also for rent-charge or rent-seek , which any man hath for life , in tail , or in see : he shall not have any action of debt as long as the rent continues ; but his executors may have an action of debt for the arrearages due in the life of their testator , by the statute h. . c. . for arrearages of rent reserved upon a lease for term of years , the lessor is at his election to have an action of debt , or to distrain : but if the lease be determined , then he shall not distrain after for that rent , but he must have an action of debt for the arrerages . and note , that by the law of the realm debt is only taken to arise upon some contract or penalty imposed upon some statute or pain , and not by other offences , as in the civil law , debitum ex delicto . if a man enter into a tavern to drink , and when he hath drank , goes away , and will not pay the vintner ; the vintner shall not have an action of trespass against him for his entry , but shall have an action of debt for the wine . if i deliver cloth to a tailor to make a gown , if the price be not agreed on in certain before , how much i shall pay for the making ; he shall not have against me a general action of debt , but a special one , and shall declare specially , and it shall be put to the iury how much he deserves . but if a tailor make a bill , and himself rates the making and the necessaries thereunto ; he shall not have an action of debt for his own values , unless it was so specially agreed ; but in such case he may detain the garment until he be paid , as an hostler may his guests horse for his meat . cok. l . . also debt lyeth for fines of copyholds , and for amerciaments in court leet , and court baron , and upon awards , and upon recoveries in base courts , or courts of record . detinue . detinue is a writ that lies against him , who having goods and chattels delivered to him to keep , refuses to re-deliver them . see hereof . f. n. b. . devastaverunt bona testatoris . devastaverunt bona testatoris is , when the executors will deliver legacies , or make restitution for wrongs done by their testator , or pay his debts due upon contracts or specialties , whose days of payment are not yet come , &c. and keep not sufficient in their hands to discharge those debts upon records or specialties which they are compellable by the law to satisfie in the first place ; then they shall be constrained to pay these out of their own goods , according to the value of what they voluntarily delivered or paid : for such irregular and illegal payments are accounted in the law a wasting of the goods of the testator , as much as if they had given them away without cause , or sold them , and converted them to their own use . and therefore if a be bound in a recognisance , or in a statute merchant , or staple , and after recovery is had against him in an action of debt ; and he makes his executors , and dies ; his executors are bound by the law to pay the debt due upon the recovery , although it be later in time , before the debt due by recognisance or statute , because though both are records , yet the iudgment in the kings court upon judicial and ordinary proceeding is more notorious and conspicuous , and of a more high and eminent degree , then a statute or recognisance taken in private , and by consent of parties , and is therefore preferred in judgment of the law before recognisance or statute : and if the executors do not satisfie this first , then if they have no goods of the dead in their hands , they shall pay it of their own . so the ordinary having goods of one that dies intestate in his hands by sequestration , and an action of debt upon an obligation to the value of the said goods is brought against him as ordinary ; he shall not dispose or administer any parcell of the said goods to the other creditors at his pleasure , but is bound to satisfie the debt first for which an action is brought against him . dyer , fol. . placit . . if a sheriff retorne ex officio without inquest , that the executor hath wasted goods , the execution goes de bonis propriis of the executor , and if the retorn be false , then the executor may have an action upon the case against the sheriff for his false retorn , because the executor hath no day to plead . but if the sheriff retorn a devastavit upon an inquiry by a iury , the executor may appear and traverse , quod non devastavit , and try it , cro. mounson and bourn , & proctor versus chamberlain . devenerunt . devenerunt is a writ directed to the escheator , when any of the kings tenants holding in capite dies , and when his son and heir , within age , and in the kings custody , dies , then shall this writ go forth , commanding the escheator , that he by the oath of good and lawful men enquire what lands or tenements by the death of the tenant come to the king , &c. see dyer , f. . pla . . but see the stat. . car. . cap. . devest . devest is a word contrary to invest ; for as invest signifies to deliver the possession of a thing , so devest signifies the taking it away . devise . devise is , where a man in his testament gives or bequeaths his goods or lands to another after his decease . and where such devise is made of goods , if the executors will nor deliver them to the devisee he hath no remedy by the common law , but it behoves him to have a citation against the executors of the testator , to appear before the ordinary , to shew why he performs not the will of the testator : for the devisee may not take the legacy and serve himself , but it must be delivered to him by the executors . see the stat. h. . ca. . & h. . ca. . & car. . ca. . by which last statute the law of testameuts is altered . but by the common law if a man be sole seised of lands in fee , and devises them by testament ; this devise was void , unless the lands were in city or borough where lands are devisable by custome . but if any man were infeoffed to the use of another and his heirs , and he to whose use he was so seised did make devise of his lands ; this devise was good , though it were not in a town where lands are devisable . also if any man devise lands in city , town , or borough , devisable , and the devisor dies ; if his heir or any other abate in the lands , then the devisee shall have a writ of ex gravi querela . but this writ shall never be pleaded before the kings iustice , but always before the maior or bailiffs in the same town . and here , to the end to shew how much the laws of this realm , and the discreet iudges of the same , who are the interpreters of it , do favour wills and testaments , and devises , in yielding to them such a reasonable construction as they think might best agree with the minds of the dead , considering that wills and testaments are for the most part , and by common intendment , made when the testatour is very sick , weak , and past all hope of recovery : for it is a received opinion in the countrey amongst most , that if a man should chance to be so wise as to make his will in his good health , when he is strong , of good memory , and hath time and leisure to ask counsell ( if any doubt were ) of the learned , that then he should not live long after ; and therefore they deferre it to such time when it were more convenient to apply themselves to the dispositions of their souls , than of their lands or goods , except it were that by the fresh memory and recital of them at that time , it might be a cause to put them in mind of some of their goods or lands falsly gotten , and so move them to restitution , &c. and at that time the penning of such wills is commonly committed to the minister of the parish , or to some other more ignorant , who knows not what words are necessary to make an estate in fee-simple , fee-tail , for term of life , or such like , besides many other mischiefs : i will therefore here set down some of those cases that are most common in ignorant mens mouths , and carry , by the wise interpretations of the judges , a larger and more favourable sense in wills , than in deeds . first therefore , if one devise to j. s. by his will all his lands and tenements ; here not only all those lands that he hath in possession do pass , but all those that he hath in reversion , by virtue of those words , tenements . and if lands be devised to a man to have to him for ever , or to have to him and his assigns ; in these two cases the devisee shall have a fee-simple . but if it be given by feoffment in such manner , he hath but an estate for term of life . and if a man devise his land to another , to give , sell , or do therewith at his pleasure or will ; this is fee-simple a devise made to one and to his heirs males doth make an estate-tail : but if such words be put in a deed of feoffment , it shall be taken for fee-simple , because it doth not appear of what body the heirs males shall be begotten . if lands be given by deed to j. s. and to the heirs males of his body , &c. who hath issue a daughter , who hath issue a son , and dies ; there the land shall return to the donor , and the son of the daughter shall nor have it , because he cannot convey himself by heirs males , for his mother is a let thereto : but otherwise it is of such a devise , for there the son of the daughter shall have it , rather then the will shall be void . if one devise to an infant in his mothers belly , it is a good devise ; but otherwise by feoffment , grant , or gift ; for in those cases there ought to be one of ability to take presently , or otherwise it is void . see . el. dy. . a devise made in fee-simple without expresse words of heirs , is good in fee-simple . but if a devise be made to j. n. he shall have the land but for term of life ; for those words will carry no greater estate . if one will that his son j. shall have his land after the death of his wife ; here the wife of the devisor shall have the land first for term of life . so likewise if a man devise his goods to his wife , and that after the decease of his wife , his son and heir shall have the house where the goods are ; there the son shall not have the house during the life of the wife : for it doth appear that his intent was , that his wife should have the house also for her life , notwithstanding it were not devised to her by express words . if a devise be to j. n. and to the heirs females of his body begotten , after the devisee hath issue a son and daughter , and dies ; here the daughter shall have the land , and not the son , and yet he is the most worthy person , and heir to his father : but because the will of the dead is , that the daughter should have it , law and conscience will so also . and herein the very heathens were precise , as appears by those verses of octavius augustus , which donatus reports he made after virgil at his death gave commandment that his books should be burnt , because they were imperfect , and yet some perswaded that they should be saved ; as indeed they happily were ; to whom he answered thus : let faith and law be kept ; and what last will commandeth to be done , we must fulfill . devoire . devoire is as much as to say a duty . it is used in the statute of r. . ca. . where it is provided ▪ that all the western merchants , being of the kings amity , shall pay all manner customs and subsidies , and other devoires of caleis . see the stat. ejusdē regis cap. . devorce . devorce or divorce , divortium , dictum est diversitate mentium , quia in diversas partes eunt qui distrahunt matrimonium or else from the verb diverto , which signifies to return back , because after the devorce between the husband and wife , he returns her again to her father , or other friends , or to the place from whence he had her . and though devorce was never approved of by the divine law , but contrariwise prohibited , as appears by this precept , let no man separate that which god hath joyned together ; yet in all ages and well-governed common-wealths it hath been used and permitted : as at this day with us there are divers causes for which the husband and wife may be devorced , as first causa praecontractus . therefore if a man marry with a woman precontracted , and hath issue by her , this issue in law and in truth bears the surname of his father : but if after the husband and wife be devorced for the precontract , there the issue hath lost his surname , and is become a bastard , and nullius filius . cok. lib. . fol. . devorce may be causa frigiditatis : and therefore if a man be married to a woman , and after they are devorced causa frigiditatis , and then the man takes another wife , and hath issue by her ; yet this issue is lawfull , because that a man may be habilis & inhabilis diversis temporibus , and by the devorce causa frigiditatis the marriage was dissolved a vinculo matrimonii , and by consequence either of them might marry again . cok. lib. . fol. . b. also a man may be devorced causa impubertatis , or minoris aetatis : and in this case if two are married infra annos nubiles , and after full age devorce is had between them ; this dissolves the marriage , and the woman may arraign an assise against the husband for the lands or tenements given with her in frank-marriage , lib. assise , pla. . so devorce may be had causa professionis , causa consanguinitatis , causa fornicationis , and for many other causes , too long to be now recited . it is requisite that in the sentence of devorce the cause thereof be shewed , because some devorce dissolves the matrimony , that is to say , a vinculo matrimonii , bastards the issue , and barrs the wife of dower ; and some a mensa & thoro , the which dissolves not the matrimony , nor barrs the woman of dower , nor bastards the issue . devorce is a iudgement spiritual , and therefore , if there be cause , ought to be reversed in the spiritual court. see cok. lib. . kenns case . if a woman copiholder of certain land , durante viduitate sua , according to the custome of the mannor , sows the land , and before the severance of the corn takes a husband ; the lord shall have the emblements , and not the husband : but if a lease be made to the husband and wife during the coverture , and the husband sows the land , and afterward they are devorced causa praecontractus ; the husband shall have the emblements , and not the lessor . dicker . dicker is a word used in the statute of jacobi , cap. . and it signifies the quantity of ten hides of leather . and it seems to come from the greek word decas , which signifies ten. diem clausit extremum . diem clausit extremum is a writ that lies where the kings tenant that hold in chief dies ; then this writ shall be directed to the escheator , to enquire of what estate he was seised , who is next heir , and his age , and of the certainty and value of the land , and of whom it is holden ; and the inquisition shall be returned into the chancery , which is commonly called the office after the death of that persō . and there is another writ of diem clausit extremum awarded out of the exchequer , after the death of an accountant or debtor of his majestie , to levy the debt of his heir , executor , administrators lands or goods . dietus datus . dies datus is a respite given to the tenant or defendant before the court. brook tit. continuance . dieta rationabilis . dieta rationabilis is sometimes used for a reasonable days journey , as bract. l. . patt . . cap. . it hath in the civil law other significations , which need not be here mentioned . see vocabul . utriusque juris . dieu son act . dieu son act , these are words oftentimes used in our law , and it is a maxime , that the act of god shall prejudice no man : and therefore if a house fall down by tempest , or other act of god the lessee for life or years shall not only be quit in an action of waste brought against him , but hath by the law a special interest to take timber to build the house again , if he will , for his habitation . cok. lib. . . & lib. . . a. in like manner , when the condition of an obligation consists of two parts in the disjunctive , and both are possible at the time of the obligation made , and afterwards one of them becomes impossible by the act of god ; the obligor is not bound to perform the other part , for the condition shall be taken beneficially for him . coke lib. . . dignitie ecclesiastical . dignitie ecclesiastical is a phrase of speech used in the statute of hen. . cap. . and by the canonists is defined to be administration conjoyned with power and jurisdiction . diminution . is when the plaintiff or defendant in a writ of error alledges to the court , that part of the record remains in the inferiour court not certifyed , and prays that it be certifyed by certiorari , co. ent. . . cr. john versus thomas , cro. . . rolls abridg. . . diocesse . diocesse is the circuit of the iurisdiction of every bishop : for this realm hath two kinds of divisions ; the one in shires or counties , in respect of the temporal politie ; the other in diocesses , in respect of the ecclesiastical iurisdiction . disability . disabilitie is , when a man by any act or thing , by himself or his ancestor done or committed , or for or by any other cause , is disabled or made incapable to do , inherit , or take benefit or advantage of a thing , which otherwise he might have had or done . there are many things by which a man may be disabled ; and those are ordinarily either by the act of the party , or his ancestor , or by the act of the law , or of god. disability by the act of the ancestor ; as if a man be attainted of treason or felony , by this attainder his blood is corrupt , and thereby himself and his children disabled to inherit . disability by the act of the party himself ; as if a man makes a feoffment to another man that then is sole , upon condition , that he shall infeoff a third man before m. and before m. or the feoffment made , the feoffee takes a wife ; he hath by that disabled himself to perform the condition according to the trust in him reposed , and therefore the feoffor may enter and out him , as it is littl. sect . . so if the feoffee charges the land , or enters into a statute-staple or statute-merchant ; by these acts he hath disabled himself , and therefore the feoffor may enter as in the former case . so if i bind my self , that upon surrender of a lease i will grant a new estate to the lessee , and afterwards i grant over my reversion : in this case , though i afterwards repurchase , and get the whole reversion to me again , yet i have forfeited my obligation , because i was once disabled to perform it . co. l. f. . also if a man be excommunicated , he cannot during that time sue any action , but shall be thereby disabled , coke , l. . f. . and so in many other cases . disability by act of law is , most properly , when a man by the sole act of the law , without any former thing by him done , is disabled ; and so is alien born . and therefore , if a man born out of the ligeance of our lord the king will sue any action , the tenant or defendant may say , that he was born in such a country forth of the kings liegeance , and demand judgment if he shall be answered ; for the law is our birth-right , to which an alien is collateral and a stranger , and therefore disabled to take any benefit thereby . by the act of god ; as not to be of whole memory is a disability in some cases , and in others not ; for which it seems this difference may be taken : that in all cases where a man of no whole memory gives or passes any thing or estate out of him , this after his death may be disanulled and avoided ; but where a man non sanae memoriae doth a thing whereby nothing passes out of him , there he may in some special cases be bound : as if he be lessee for years , rendring rent , and the lessor grants the reversion ; there the lessee non sanae memoriae cannot make attornment , for he that is amens , or without mind , cannot make attornment , which is agreement ; and yet in such case if the lessor ejects him , and makes a feoffment , and afterwards the lessee non sanae memoriae re-enters , this act of re-entry doth subject him to the distress and action of waste . and it is a maxim in law , that a man of full age shall never be received to disable his own person . and this incapacity to disable himself , as to some persons is personal , and extends only to the party himself ; and as to others it is not personal , but shall bind them also . there are four manner of privities : scil . privies in bloud , as heir ; privies in representation , as executors or administrators , privies in estate , as donee in tail , the reversion or remainder in fee , &c. and privies in tenure , as the lord and tenant : and two of these may disable the person of the dead , which was non sanae memoriae , or , &c. and shall avoid his grants or feoffments , and two of them not . for privies in bloud may shew the disability of the ancestor , and privies in representation the infirmity of their testator or intestate ; but neither privy in estate , nor privy in tenure can so do , co. l. . f. , . see lit. sect . . & co. l. . fol. . disalt . disalt signifies as much as to disable . litleton cap. discontinuance . disceit . disceit is a writ , sometime original , and sometime iudicial . when it is original , it lies where any disceit is done to a man by another , by not performance of a bargain or promise , then he that is in such manner deceived shall have this writ . when it is judicial , it lies where a scire facias is sued out of any record against a man , and the sheriff returns that he is warned , where he was not ; or where a praecipe quod reddat , of a plea or lands . or a quare impedit , of the presenting to a church , is sued against one , and the sheriff returns that the defendant is summoned , where he was not ; by which disceit and false return the demandant or plaintiff recovers : then the party grieved shall have this writ against him that recovered , and against the summoners , and against the sheriff ; and the writ shall be directed to the coroners of the same county , if he continue sheriff that made the return . so if a man makes an attorney in an action real brought against him , and afterwards it is agreed by disceit between the demandant and the said attorney , that the said attorney shall make default , who doth so accordingly , whereby the tenant loses his land ; then the same tenant that loses the land may have a writ of disceit against the attorney . also if a man brings an action of trespasse against two others , and the plaintiff and an attorney by disceit , cause two strangers , not parties to the writ , to come into court , and say that they are the same two defendants named in the writ , and that they appoint the same man to be their attorney in that suit , whereupon the same attorney , as attorney to the defendants named in the writ , pleads to the issue , and after suffers the enquest to pass by his default , by which means the plaintiff recovers : in this case those that are indeed defendants may have a writ of desceit against the same attorney , and shall recover their dammages . fitzh . nat. brev. . and as the law punishes her officers , as serjeants , pleaders , philizers , exigenters , attornies , and others , so she renounces and condemns all acts of greatest importance , if they be intermixt with disceit and falshood . as if a fine be levied by disceit , and five years past ; by the statute of h. . c. . all persons and their rights shall be barred thereby : yet for that it was by disceit , th ● fine shall be avoided , as is a ●● dged in cok. lib. . fol. . 〈◊〉 the same manner , if one ●● cover land by disceit , the ●●● overy for this shall be fru ●●● ated and made void , ed. . ● . so if a woman , that hath good cause to be endowed , will by disceit have the tenant to be disseised , and after recovers her dower by a writ of dower against the disseisor ; yet she shall be adjudged in possession against the disseis ● e but as a disseisoresse , in respect of the disceit . cok. lib. . fol. . there is another manner of writ of disceit , where land which is auncient demesn is impleaded by the kings writ at westm ▪ then the lord of the mannor may have this writ , and reverse all the former proceedings , and iudgment , as it appears rast . ent. , . r. . , & h. . . discent . discent or descent is in two sorts , either lineal or collateral . lineal discent is , when a discent is conveyed in the same liue of the whole bloud ; as grandfather , father , son , sons son , and so downward . collateral discent is out in another branch drawn from above of the whole bloud , as grandfathers brother , fathers brother , and so downward . note , that if one die seised in fee or in tail of land in which another hath right to enter , and that discends to his heir , such discent shall take away the entry of him who hath right to enter , for that the heir hath it by discent from his father , and so by act of the law ; and he that hath right cannot put him out by entring upon him , but is put to sue his writ , to demand the land according to the nature of his title . see hereof in littl. lib. . cap. . and stat. . h. . cap. . disclaimer . disclaimer is , where the lord distrains his tenant , and he sues a replevin , and the lord avows the taking , by reason he holds of him ; if the tenant say , that he disclaims to hold of him , this is called a disclaimer ; and if the lord thereupon bring in a writ of right sur disclaimer , and it be found against the tenant , he shall lose his land. also if one brings a praecipe against two others for the land , and the tenant disclaims , and saith that he is not thereof tenant , nor claims any thing therein ; then the other shall have the whole land : but if the praecipe be brought against one alone , and he disclaims , as aforesaid , the writ shall abate ; yet the demandant may enter in the land , and hold it in his rightfull estate , though his entry was not lawful . and after the tenant in an action brought against him disclaims , he shall not have a writ of error against his own disclaimer , because by it he hath barred himself of his right to the land ; for the words of the disclaimer are , he hath nothing neither claims he to have in the land , neither at the day of the bringing of the original writ aforesaid , &c. had or claimed , but any thing in the same land to have he disavows and disclaims : and against this he shall not have restitution by a writ of error . see cok. lib. . fol. . so if a lord , in case where he may , disclaims his seigniory in court of record , his seigniory by this is extinct , and the tenant shall hold of the lord next above him that so disclaimed . lit. sect . . if lands be given to the husband and wife in tail or in fee , and the husband dies , the wife cannot devest the freehold cut of her by any verbal waver or disclaimer in the countrey : as if before any entry made by her she saith , that she altogether waves and disclaims the said estate , and will never take nor accept thereof ; yet the free-hold remains in her , and she may enter when she pleases . so a charter of feoffment was made to four , and seisin was delivered to three in the name of all , and after the seisin was delivered , the fourth coming sees the deed , and saith by word that he will have nothing of the land , nor agree to the deed , but disclaims : and it was adjudged , that this disclaimer by word in the countrey shall not devest the freehold out of him . cok. lib. . fol. . discontinuance . discontinuance is , when a man alienates to another lands or tenements , and dies , and another hath right to the same lands , and may not enter into them because of this alienation : as if an abbot alien the lands of his house to another in fee , fee-tail , or sor life , or if a man alien the lands that he hath in right of his wife , or if tenant in tail makes , of the lands given to him and the heirs of his body , any feoffment , gift in tail , or lease for life , not warranted by the statute hen. . by fine or livery of seisin ; then such alienations are called discontinuances , for such estates passe away by livery and seisin : in these cases the successors of the abbot , or the woman after the death of her husband , or the issue in tail after the death of the tenant in tail , and they that have any remainder or reversion after the end of the estate-tail , may not enter , but every of them is put to his action . and as there is discontinuance of possession , as is said before ; so also is there discontinuance of process or plea : and this is when the instant is lost , and may not be regained , but by a new writ to begin the suit afresh ; for to be discontinued and to be put without day is all one , and nothing else but finally to be dismissed the court for that time . west part . . tit . fines , sect . . so crompton , in his jurisdictions , fol. . uses it in these words ; if a justice-seat be discontinued by the not coming of the justices , the king may renew it by his writ . and if the iustices of any court do not meet at the day and place appointed , then the cause shall be discontinued unto another day ; as in cok. lib. fol. . so if a man hath an action in the court of the marshalsea , and the king removes forth of the vierge , the pleas shall be discontinued , cok. lib. . fol. . see more hereof in litt. lib. . cap. . and h. . cap. . which takes away discontinuances by the husband seised in right of his wife . disgrading . disgrading , or degrading , is when a man having taken upon him a dignity temporal or spiritual , is afterwards thereof deprived , be he knight , clerk , or other . whereof if a clerk be delivered to his ordinary , and cannot clear himself of the offence whereof he is convicted by the iury , he shall be disgraded for it ; which is nothing else but the deprivation of him from those orders he hath taken upon him , as priesthood , deaconship , or otherwise . stamf. pl. cor. fol. , . in like manner there is disgrading of a knight , as is aforesaid . see stow annal. pag. . and it is worthy the observation , that by the canon law there are two kinds of disgradings ; the one summary , by word only , and the other solemn , by devesting the party disgraded from those ornaments and rites which are the ensigns of his order or degree . see e. . , . tithes . tithes are the tenth parts of any thing , but properly of those things that increase , which for the most part belong to ministers of the church for their maintenance ; and they are of three sorts , to wit , predial , personal , and mixt . predial tithes are tithes that are paid of things that come of the ground onely ; as corn , hay , fruits of trees , and such like . personal tithes are tithes paid of such profits as come by the labour and industry of a mans person ; as by buying and seiling , gains of merchandize , and of handy-crafts men , labourers , and such as work for hire , as carpenters , masons , and such like . mixt tithes are tithes of calves , lambs , pigs , and such like , that increase partly of the ground they are fed upon , and partly of the keeping , industry and diligence of the owner . disparagement . disparagement is a shame , disgrace , or villany done by the gardian in chivalrie to his ward within age , in point of his marriage . as when the gardian marries his ward within age of fourteen years , and within such time as he cannot consent to marriage , to a bond-woman ; or to the daughter of one that dwels in a borough , ( which is to be understood such whose fathers profess handicrafts , and those baser arts of buying and selling to get their living ) or to one that is lame , or deformed , or hath some horrible disease , as the leprosie , french-pox , falling-sickness , or such like ; or marries him to a woman that is past child-bearing , and divers such other ; then , upon complaint made by the friends of such heir , the lord or gardian shall lose the wardship , and the profits during the nonage of the heir , for the disparagement done him . see littl. lib. . cap. . disseisin . disseisin is , when a men enters into any lands or tenements where his entry is not lawful , and puts him out that hath the freehold . disseisin upon disseisin . disseisin upon disseisin is , when the disseisor is disseised by another . disseisor and disseisee . disseisor is he who puts a man out of his land without order of law. but the king cannot be said to be a disseisor ; and with this is a note in e. f. . that it was held , the king could not be termed one that did wrong for if one will disseise another to the use of the king , where the king hath no right , the king cannot be said a disseisor . disseisee is he that is put out of his land ; and if such disseisee levy a fine of the land whereof he is disseised to a stranger , the disseisor shall keep the land for ever , for the disseisee against his own fine cannot claim , and the conusee cannot enter , for the right which the disseisee had was extinct by the fine , whereof the disseisor shall take advantage : and so was the opinion , cok. lib . fol. . distress . distress is the thing taken and distrained upon any land for rent behind , or other duty , or for hurt done , although the property of the thing belongs to a stranger : but if they are beasts that belong to a stranger , it behoves that they were levant and couchant upon the same ground , that is to say , that the beasts have been upon the ground a certain space , that they have themselves well rested there , or else they are not distrainable for rent or service . if one distrain for rent or other thing without lawfull cause , then the party grieved shal have a replevin , and upon surety found to pursue his action , shall have the distress re-delivered . but there are divers things that are not distrainable ; viz. another mans gown in the house of a tailor , or cloth in the house of a fuller , sheerman , or weaver , they being common artificers , and the common presumption is , that such things belong not to the artificers , but to other persons who put them there to be wrought . victual is not distrainable , nor corn in sheaves , unless they are in a cart ; because a distress ought to be always of such things whereof the sheriff may make replevin , and deliver again in as good case as they were at the taking . a man may distrain for homage of his tenant , for fealty and escuage , and other services and for fines and amerciaments which are assessed in a leet , but not in a court-baron ; and for dammage-feasant , that is , when he finds the beasts or goods of any other doing hurt , or incumbring his ground . but a man may not distrain for any rent , or thing due for any land , but upon the same land that is charged therewith . and in case where i come to distrain , and the other , seeing my purpose , cases the beasts , or bears the th ● ng out , to the intent that i shall not take it for a distresse upon the ground ; then i may well pursue ; and if i take it presently in the high-way , or in anothers ground , the taking is lawful as well there as upon the land charged , to whomsoever the property of the goods belongs . also for fines and amerciaments assessed in a leet , one may always take the goods of him that is so amerced , in whose ground soever they be within the iurisdiction of the court , as it is said . also when one ha ● h taken a distresse , it behoves him to bring it to the common pound , or else he may keep it in an open place , so that he give notice to the party , that he ( if the distress be a quick beast ) may give it food ; and then if the beast die for want of food , he that was distrained shall be at the loss , and the other may distrain again for the same rent or duty : but if he carry the distresse to an hold , or out of the county , that the sheriff may not make deliverance upon the replevin ; then the party ( upon return of the sheriff ) shall have a writ of withernam directed to the sheriff , what he take as many beasts or as much goods of the other into his keeping , till deliverance be made of the first distresse . and also if they be in a fortlet or castle , the sheriff may take with him the power of the county , and beat down the castle , as appears by the statute of west . . c. . therefore see the statute . district . district is sometimes used for the circuit or territory within which a man may be compelled to appear , brit. c. . and so also is districtio in the reg orig . fol. . v. distresse in the former signification is divided first into finite and infinite . finite is that which is limited by law , how often it shall be made , to bring the party to trial of the action , as once or twice , old. nat. brev. f. . distresse infinite is without limitation untill the party comes ; as against a iury that refuses to appear upon certificate of assise , the process is a venire facias , habeas corpora , and distresse infinite . old. nar . brev. f. . then it is divided into the grand distresse , as anno h. . c. . which fitzh . calls in latine magnam districtionem , nat. brev. . a. and an ordinary distresse . a grand distresse is that which is made of all the goods and chattels which the party had within the county , brit. c. . f. . but see whether it be not sometimes all one with distresse infinite , idem fol. . with whom also the statute of marlbridge seems to agree , anno h. . c. . , & . see the old. nat. brev. . b. distringas . distringas is a writ directed to the sheriff , or any other officer , commanding him to distrain for a debt to the king , &c. or for his appearing at a day . see the great diversity of this writ in the table of the reg. judic verbo distringas . also there is a writ to distrein iurors to try an issue in a suit at common law. and also another writ to distrein the adjacent villages to make good hedges and fences thrown down in the night by unknown men . of which see cro. rep. . & in t ' reg. & inhabit ' de epworth . dividend . dividend is a word used in the statute of rutland , anno e. . where it seems to signifie one part of an indenture . see anno ejusdem , stat. . c. . divorce . divorce . see devorce . docket . docket is a little piece of payer or parchment written , that contains in it the effect of a greater writing . see the statute & p. & m. c. . m. west . part . tit . fines , sect . . calls it dogget . dog-draw . dog-draw is an apparent deprehension of an offendor against venison in the forrest . there are four kinds of them observed by manwood , part . c. . num . . of his forest laws , that is , dog-draw , stable stand , back-bear , and bloudy-hand , dog-draw is , when one is found drawing after a deer by the sent of a hound led in his hand . dogger . dogger is a kind of ship , anno e. . stat. . c. . dogger-fish , ib. c. seems to be fish brought in those ships to blackney haven , &c. doggermen , anno h. . c. . dole-fish . dolefish seems to be those fishes which the fishermen yearly imployed in the north seas do of custome receive for their allowance . see the statute anno h. . c. . dominus litis . is the advocate in the civil law , who after the death of his client , prosecutes a suit to sentence for the executors use . domo reparan ●● domo reparanda is a vr. that lies for one against his neighbour , by the fall of whose house he fears some hurt will come to his own . reg. orig . fol. . doom . doom ( from the saxon dom ) signifies iudgment ; a word much used in references to arbitrators . dooms-day . dooms-day is a book that was written in the time of s. edward the confessor , as the author of old nat. brev. saith , fol. . and before in the title of ancient demesne , containing in it not only all the lands through england , but also all the names of those in whose hands they were at that time when the book was made . lambert proves that this book was made in the time of william the conquerour , with whom cambden in his britan. pag. . agrees , proving it out of ingulphus that flourished the same time , who touching the contents thereof hath these words : it describes the whole land ; neither was there one hide in all england whose value and possessour was unknown , nor any pool or place not describ'd in the kings roll , and the rent , profits , possession it self and possessor not made known to the king , according to the fidelity of the taxers , who described the same country wherein they were elected that roll is called rotulus wint. and by the english , for its generality , in that it contains all the tenements contained throughout the land , it is surnamed dooms-day , and this book is sometimes called liber judicatorius , because in it is contained a diligent description of the kingdom , and it expresses the value of all the ground thereof , as well in the time of king edward , as in the time of king william , under whom it was compiled . doomsman . seem to be suitors in a court of a mannor in auntient demesne , who are iudges there . donative donative is a benefice meerly given and collated by the patron to a man , without either presentation to , or institution by the ordinary , or induction by his commandment , f. n. b. . e. see the statute of . r. . c. . peter gregory de beneficiis , c. . num . . hath these words : but if chappels founded by lay-men were not approved of the diocesan , and , as they term it , spiritualized , they are not accounted benefices , neither can they be conferred by the bishop , but remain to the pious disposition of the founders . wherefore the founders and their heirs may give such chappels , if they will , without the bishop . m. gwyn , in the preface to his readings , saith , that the king might of antient time found a free chappel , and exempt it from the iurisdiction of the diocesan : so also he may by his letters patents give licence to a common person to found such a chappel , and to ordain that it shall be donative , and not presentable , and that the chaplain shall be deprivable by the founder or his heir , and not by the bishop : and this seems to be the original of donatives in england . fitzherbert saith , fol. . c. that there are some chauntries which a man may give by his letters patents . and all bishopricks were of the foundation of the kings of england , and therefore in the antient time they were donative , and given by the kings ; yet now the bishopricks are become , by the grants of the kings , eligible by their chapter , coke , l. . f. . donor and donee . donor is he who gives lands or tenements to another in tail ; and he to whom the same is given is called donee . dorture . dorture is a common room , place , or chamber , where all the religious of one covent slept , and lay all night . anno h. . cap. . double plea. double plea is , where the defendant or tenant in any action pleads a plea in which two matters are comprehended , and each one by it self is a sufficient bar or answer to the action , then such double plea shall not be admitted for a plea , except one depend upon another ; and in such case if he may not have the last plea without the first , then such a double plea shall be well received . double quarel . double quarel is a complaint made by any clerk or other to the archbishop of the province against any inferiour ordinary , for delaying iustice in any cause ecclesiastical , as to give sentence , or to institute a clerk presented , or such like : the effect of which is , that the archbishop , taking knowledge of such delay , directs his letters under his authentical seal to all and singular clerks of his province , thereby commanding and giving authority to them and every of them , to admonish the said ordinary within nine days to do the iustice required , or otherwise to cite him to appear before him or his official at a day in the said letters prefixed , and there to alledge the cause of his delay ; and lastly , to intimate to the said ordinary , that if he performs not the thing injoyned nor appears at the day assigned , he himself without other delay will proceed to perform the iustice required . and it seems to be called a double quarel , because it is most commonly made against the iudge , and him at whose request iustice is delayed . dower . dower , by the law of the realm , is a portion which a widow hath of the lands of her husband , which by the common law is the third part ; but by her husbands assignment by his fathers assent at the church-door , she may have so much of his fathers land as is so assigned , and so of the husbands assignment of part of his own land. and dower , by the custome of some places , is to have half the husbands land. dower is also a writ that lies where a man is sole seised , during the coverture between him and his wife , of lands or tenements in fee-simple or fee-tail , where by possibility the issue between them may inherit ; if such a man die , his wife shall recover the third part of all the lands whereof the husband was sole seised any time during the coverture , by a writ of dower unde nihil habet , though he died not seised , and though he made alienation thereof in his life . but if a man , before the statute of vses , h. . had lands in which another man or other men were seised to his use always during the coverture , and he to whose use they were seised died before the said statute , his wife should not be endowed . and if before the said statute two men were seised of lands to the use of one of them , and he to whose use , &c. died before the said statute , his wife should not be endowed . also if a woman bring a writ of dower , she should recover dammages for the profit run after the death of her husband , if he died seised thereof : but if any alienation or estate were made during the coverture , so that the husband died not seised ; then though she should recover the land , yet no dammages . also there is another writ of dower called a writ of right of dower , which lies where a woman hath recovered part of her dower in one town , and the other part she is to recover . but in divers cases a woman shall not have dower , as if the husband commit treason , for which he is attainted , then his wife shall have no dower . and if she elope from her husband with another man in adultery , and be not reconciled to him of her own will without coercion of the church , she shall not be endowed . see lit. l. . cap. . and note , where in the civil law dower is that which the husband hath with his wife in marriage , to maintain the married estate ; by the laws of this realm the word ( dower ) signifies such portion as the wife after her husbands death shall have to live on . dozeine . dozeine . see deciners . drie exchange . drie exchange ( anno h. . cap. . ) seems to be a subtile term , invented to disguise vsury , in which something is pretended to pass on both sides , whereas in truth nothing passes on the one side . drift of the forest . drift of the forrest is nothing else but an exact view or examination taken once , twice , or oftner in a year , as occasion shall require , what beasts there are in the forrest , to the end that the common in the forrest be not over-charged , that the beasts of foreiners that have no common there be not permitted , and that beasts not commonable may be put out . see for this the statute of h. . cap. . and manwoods forrest laws , cap. . right . right is , where one hath a thing that was taken from another wrongfully , as by disseisin , discontinuance , or such like ; the challenge or claim of him that ought to have it is called right . if a woman release all her right to him in reversion , her dower is extinct ; for when the right , which is the foundation and principal , is released , by consequence the action , which is but the means to recover , is also released . by release of all title to the land all his right is extinct . so when a man hath title either by condition , or by alienation in mortmain , the release of all his right shall extinguish this title , cok. lib. . fol. , . right of entry . right of entrie is , when one seised of land in fee is thereof disseised ; now the disseisee hath right to enter into the land , and may so do when he will , or else may have a writ of right against the disseisor . duces tecum . duces tecum is a writ out of the chancery , commanding a man to appear there , and to bring with him some piece of evidence , or other thing that the court would have a sight of . dum fuit infra aetatem . dum fuit infra aetatem is a writ that lies where an infant aliens his land in fee-simple , or for term of life ; when he comes to his full age he shall have this writ , or he may enter if he will , but he must be of full age the day of his writ brought . also if an infant alien his land , and die , his issue at his full age shall have this writ , or he may enter ; but the issue shall not have this writ within his age . dum non fuit compos mentis . dum non fuit compos mentis is a writ that lies when a man that is out of his wit , viz. mad or lunatick , aliens his land in fee-simple , and dies ; then his heir after his decease shall have this writ , but he himself shall not have it , for that a man shall not be received to disable himself . also this writ may be made in the per , cui , and post duplicat . duplicat is a second letters patents granted by the lord chancellour , in case where he hath granted the same before ; and therefore they are held void by crompton in his jur. of courts , fol. . duresse . duresse is , where one is kept in prison , or restrained from his liberty , contrary to the order of law , or threatned to be killed , maimed , or greatly beaten : and if such person so in prison , or in fear of such threatnings , make any specialty or obligation by reason of such imprisonment , such a deed is void in law ; and in an action brought upon such a specialty , he may say , it was made by duresse of imprisonment . but if a man be arrested upon an action at the suit of another , though the cause of action be not good nor true , if he make an obligation to a stranger being in prison by such arrest , yet it shall not be said by duresse . but if he make an obligation to him at whose suit he was arrested , to be discharged of such imprisenment , then it shall be said duresse . duchy . is a court in the duchy chamber of lancaster at west . before the chancellor del duchy de lanc̄ for matters concerning the lands and franchises of the duchy and their proceedings are by english bill , as in chancery , co. . inst . . e. earlderman . ealderman among the saxons was as much as earl among the danes camb. brit. . and at this day we call them aldermen , who are associates to the chief officer in the common council of the town , h. . c. . and in some places the chief officer himself is called alderman . earle . earle . see countee . easement . easement is a priviledge that one neighbour hath of another , by writing or prescription , without profit ; as a way or a sink through his land , or such like , kitch . f. . egiptians . egiptians , commonly called gipsies , are counterfeit rogues , welsh or english , that disguise themselves in speech and apparel , and wander up and down the country , pretending to have skill in telling fortunes , and to deceive the common people , but live chiefly by filching and stealing ; and therefore the statutes of & mar. c. . & eliz. c. . were made to punish such as felons , if they departed not the realm , or continued so a mouth . ejectione firmae . ejectione firmae . look for that in the title quare ejecit infra terminum . ejectment de gard. ejectment de gard. see that in the title gards . eigne . eigne is a french word , and signifies the eldest or first-born . see enitia pars . einecia einecia signifies eldership , stat. of ireland , anno h. . see enitia pars . eire justices . eire justices , or itinerant , as we call them , were iustices that used to ride from place to place throughout the realm , to administer iustice . and these iustices had authority in ancient times to grant land that was seised for the king for alienation without licence ; for then iustices in eire might have granted such land in fee , rendring rent , as iustices of the forrest ( who in effect , as to this purpose , are iustices in eire ) at this day may of lands iuclosed within a forrest , without the kings licence , coke , l. . fol. . election . election is , when a man is left to his own free will , to take or do one thing or another , which he pleases : as if a covenants to pay b a pound of pepper or saffron before whitsontide , it is at the election of a at all times before whitsontide , which of them he will pay ; but if he pays it not before the said feast , then afterward it is at the election of b of have his action for which he pleases . dyer , f. . pl. . so if a man gives to another his horse or cow , the donee may take the one or the other at his election : but if it be that he will give , in the future tense , then the donee cannot take the one nor other , for then the election is in the donor . h. . . also if a iustice of peace direct his warrant to a constable , to bring the party apprehended before him or another iustice , it is in the election of the constable to go to what iustice he pleases , coke lib. . fol. . and so in many other cases . elegit . to hold by elegit is , where a man hath recovered debt or dammage by a writ against another by confession , or in other manner , he shall have within the year against him a writ judicial , called elegit , to have execution of the half of all his lands and chattels , ( except oxen and beasts of the plow ) till the debt and dammages be wholly levied and paid him ; and during this term he is tenant by elegit . if he be put out within the term , he shall have assise of novel disseisin , and after a redisselsin , if need be ; and this is given by the statute of wes ● m. . c. . and by the equity of the said statute , he that hath this estate , if he be put out , shall have assise and redisseisin , if need be . and also if he make his executors , and die , and his executors enter , and after are put out , they shall have such action as he himself . and if he be put out , and after make his executors , and die , his executors may enter ; and , if they be stopped of their entry , they shall have a writ of trespasse upon their case . if he do waste in all the land , or parcel , the other shall have against him immediately a writ judicial out of the first record , called venire facias ad computandum , by which it shall be enquired if he have levied all the money , or parcel ; and if he have not levied the money , then it shall be enquired to how much the waste amounts ; and if the waste amount but to parcel , then as much of the money as the waste amounts unto shall be abridged of the aforesaid money which was to be levied . but if he have done more waste then the aforesaid summ of money which was to be levied amounts to , the other shall be discharged forthwith of all the said money , and shall recover the land. and for the superfluity of the waste made above the said summ , he shall recover his dammages single . the same law is of his executors , and of him that hath his estate . or if the debtor be satisfied by digging coals , load , tyn , or oeher casual profits . see the stat. h. . c. . if all the lands extended be evicted from the debtor by a better title he may take a new execution , co. . rep. . if he alien in fee , for term of life , or in tail , all or parcel of the land which he holds by elegit , if the alienation be made within the term or after , he who hath right shall have against him an assise of novel disseisin . and they both must be put in the assise , the alienor and the alience : and though the alienor d ● e presently , yet he who hath right shall have assise against the alienee alone , as if the alienee had been a plain tenant for term of years . and that is by the equity of the statute of westm . cap. . for that he hath but a chattel in effect . and the same law is of his executors , and of him who hath his estate , as is aforesaid . in elegit , if the sherif return that the party hath nothing the day of the recognizance made , but that he purchased lands after the time , then the plaintiff shall have a new writ to have execution thereof . the same law is of a statute-merchant . after a fieri facias a man may have the elegit , but not contrariwise ; for that the elegit is of a higher nature then the fieri facias . if a man recover by a writ of debt , and sue a fieri facias , and the sheriff return that the defendant hath nothing whereof he may satisfie the debt to the party ; then the plaintiff shall have elegit , or capias sicut alias , and a pluries . and if the sheriff return at the caplas , mitto vobis corpus , and he have nothing whereof he may make satisfaction to the party , he shall be sent to the prison of the fleet , and there abide untill he have made agreement with the party : and if the sheriff return non est inventus , then there shall go forth an exigent against him . note well , that in a writ of debt brought against a parson , who hath nothing of lay-fee , and the sheriff returns that he may not be summoned ; then shall the plaintiff sue a writ to the bishop , to cause his clerk to come , and the bishop shall make him come by sequestration of the church . and if a man bring a writ of debt , and recover , and make his executors , and die ; they shall not have execution , notwithstanding it be within the year , be a fieri facias . there is another sort of elegit upon adjudging execution against terr-tenants , which elegits recite the lands against which execution is adjudged , and commands the sheriff to deliver to the creditor a moyty of those lands , and nothing is therein mentioned of any goods or chattels as in the other elegits , elopement . elopement is , when a married woman departs from her husband , and dwells with an adulterer , for which , without voluntary reconcilement to her husband , she shall lose her dower , by the statute of west . . cap. . whereupon is this old verse , the woman that her husband leaves , and with adult'ry is defil'd . her dower she shall want , unless she first to him be reconcil'd . embleaments . embleaments are the profits of the land which have been sowed ; and in some cases he who sowed them shall have them , and in some not : as if tenant for life sow the land , and afterwards die , the executors of the tenant for life shall have the embleaments , and not he in reversion . but if tenant for years sow the land , and before that he hath reap'd his term expires ; there the lessor or he in reversion shall have the embleaments . if one desseises me , and cuts the embleaments growing upon the land , and afterwards i re-enter ; i shall have an action of trespasse against him for the embleaments : but if my disseisor makes a feoffment in fee , or leases the land whereof he disseised me , and the feoffee or lessee takes the embleaments , and after i re-enter ; i shall not have trespass vi & armis against them who come in by title , but against my disseisor . cok. lib. . f. . if a woman copiholder , during her widowhood , according to the custome of the mannor , sows the land , and before severance of the embleaments she takes a husband ; the lord shall have the embleaments . so if a woman seised of land during her widowhood makes a lease for years , and the lessee sows the land , and the woman takes a husband ; there the lessee shall not have the embleaments , although his estate be determined by the act of a stranger . and although it is commonly held in our books , that if a man leases lands at will , and after the lessee sows the land , and then the will is determined , that the lessee shall have the embleaments ; yet if the lessee himself determines the will before the severance of the corn. he shall not have the embleaments . see cok. lib. . fol. . embrasour , or embraceour . embrasour , or embraceour , is he that , when a matter is in trial between party and party , comes to the barrs with one of the parties ( having received some reward so to do ) and speaks in the case , or privily labours the iury , or stands there to survey or overlook them , thereby to put them in fear and doubt of the matter . but persons learned in the law may speak in the case for their clients . emparlance . emparlance is , when a man being to answer to a suit or action , desires some time of respite , to advise himself the better what he shall answer : and it is nothing else but a continuance of the cause untill a fatther day . and though the plaintiff ( in the kings bench ) after the barre pleaded , hath time to reply two or three terms after ; yet no mention shall be made in the roll of any emparlance or continuance , but the entry shall be general , and so intended to be the same term. but it is otherwise with a barre , for it contains the emparlance or continuance , and is in this manner : and now at this day , that is , friday , &c in the same term ▪ untill which day the aforesaid a had licence to imparle , &c. but there is no such entry upon any replication or rejoynder . see coke lib. . fol. . brit. cap. . uses this word for the conference of a iury upon the business to them committed . there is a special imparlance also for a defendant salvis sibi omnibus & omnimodis exceptionibus ad breve & narrationem , or ad billam which is of use where the defendant is to plead some matters which cannot be pleaded after a general imparlance . encheson . encheson is a french word much used in our law books , as in the statute of e. . cap. and it signifies as much as the occasion , cause , or reason for which any thing is done . so it is used by stamford , lib. . cap. . in his description of a deodand . encrochment . encrochment comes from the french word acrocher , that is , to pull or draw to : and it signifies an vnlawfull gaining upon the right or possession of another . and so a rent is said to be encroched , when the lord by distresse or otherwise compells the tenant to pay more rent then he ought , or then he need . see bucknal's case , rep ' fol. . so when a man sees his hedge or his wall too far into the land or ground of his neighbour that lies next him , he is said to incroach upon him . enditement , or indictment . indictment comes of the french enditer , that is , to set a man out as he is . and it is a bill or declaration in form of law , exhibited by way of accusation against one for some offence either criminal or penal , and preferred to iurors , and by their verdict found and presented to be true before a iudge or officer that hath power to punish or certifie the offence . endowment . endowment ( dotatio ) signifies properly the giving or assuring of dower to a woman . but it is sometimes by a metaphor used for the setting out or severing of a sufficient part or portion to a vicar for his perpetual maintenance , when the benefice is appropriated . and so it is used in the statutes of r. . cap. . and h. . cap. . endowment de la pluis . belle part . endowment de la , &c. is , when a man dies seeised of some lands held in knights-service and others in soccage , the widow is sped of her dower rather in the soccage-lands , as the fairest part . of this see littl. lib. . cap. . enfranchisement . enfranchisement is , when a man is incorporated into any society or body politick . so if an alien born be made denizon of england , he is said to be enfranchised ; and he that is made a citizen of london , or other town corporate ; because he is made partaker of those liberties which belong to the corporation whereinto he is enfranchised . and when a man is enfranchised into a city or borough , he hath a free-hold in his freedome for his life , and with others in their politick capacity , hath inheritance in the land of the said corporation : wherefore the thing which shall be the cause of his dis-infranchisement ought to be an act or deed , and not only an endeavouring or enterprising , whereof he may repent before it be put in execution . and what shall be sufficient cause to dis-infranchise a free-man , and what not , see cok. lib. . in bagg's case , fol. . englesherie . englesherie , or englecerie , is an old word , which signifies the being an englishman : for in ancient time , as appears by bracton lib. . tract . . cap. . fol. . if a man had been slain or murthered , he was accounted to be francigena ; which word implies every alien , until englesherie were proved , that is , until it was made manifest that he was an enlish-man : the original whereof was this : kanotus , the danish king , having established his estate here in peace , at the request of our barons , discharged the land of his armies , wherein he reposed his greatest safety , upon this condition , that the barons would give consent to a law , that whosoever should ● ill an alien , and was apprehanded , and could not acquit himself should be liable to iustice ● but if the man-slaier escayed , the town where the man was slain should forfeit sixty six marks to the king ; and if ● he town was not able to pay it , then the hundred should forfeit and pay this to the king 's own tteasury : and farther , that every man murthered should be accounted francigena , unless englesherie were proved ; and how it should be proved , see bracton in the same chap. num . . also see horn's mirrour of justices , l. . cap. of the office of coroners , and fleta , l. . c. . this englesherie , for the abuses and grievances which were afterwards perceived to arise therefrom , was utterly abolished by stat. an. . e. . c. . see coke , l. . f. . calvin's cafe . enheritance . enheritance is such estate in lands or tenements , or other things , as may be inherited by the heir ; whether it be estate in fee-simple , or tail by discent from any of his ancestors , or by his own purchase . and it is divided into enheritance corporate , and enheritance incorporate . enheritance corporate are mesuages , lands , meadows , pastures , rents , and such like , that have substance in themselves , and may continue always : and these are called corporal things . enheritance incorporate are advowsons , villains , ways , commons , courts , fishings , and such like , that are or may be appendant or appurtenant to enheritance incorporate . the eldest part . enitia or einecia pars is that part which , upon partition among coparceners , falls to the eldest sister or ancientest coparcener , as it appears by littleton , sect . . and it is called enitia pars from the french word eigne or aisne , that is , the first-born . enquest . enquest is that inquiry which is made by iurors in all causes civil or criminal touching the matter in fact. and such inquiry is either ex officio , which are called inquests of office and are traversable , or at the mise of the parties . this word is used in the statutes of e . c. . e. . c . and almost in all statutes that speak of trials by iurors . entendment . entendment is an usual word in our law , when a thing is in doubt , then by entendment it shall sometimes be made good . as if an inquisition be found before a coroner , that a man was murthered at a. which is a liberty , and is not said in the inquisition at a within the liberty of a , yet it shall be good by entendment ; for peradventure the liberty may extend beyond the town , but that the town if self shall be presumed to be out of the liberty of the town , is a captious construction : wherefore the inquisition shall be good by entendment . coke , l. . f. . see kitch . f. . enterpleader . enterpleader is , when in any cause a matter happens which of necessity ought to be discussed before the principal cause can be determined : for example , two persons be found heir to land by two several offices in one county , by this the king is in doubt to whom he shall make livery , for which cause , before livery made , he will have them interplead , and thereby determine who is the right heir . see coke , l. . f. . stam. prer . c. . brooke , tit . enterpleader . also there is another sort of interpleader in detinue in divers cases , which see rast . entries . entire tenancie . entire tenancie is that which is contrary to several tenancy , and signifies a sole possession in one man , where the other signifies ioynt or common in more . see brooke , several tenancies , and the old book of entries , under this title . entrie . entrie is , where a man enters into any lands or tenements , or takes possession of them . also there are divers writs of entry which are in divers manners . one is a writ of entrie sur disseisin , which lies where a man is disseised , he or his heir shall have this writ against the disseisor , or any other after tenant of the land. and if the disseisor alien , and die seised , then the writ of entrie shall be against the heir and the alienee in the per ; viz. in which the tenant hath no entry but by such a one , naming the disseisor , who him hath disseised , &c. if the heir or alienee die seised , or alien to another , then the writ shall be in the per and cui ; viz. to which the tenant hath no entry but by such a one , naming the heir or alienee of the disseisor . to whom such a one ( naming the disseisor ) did let it , who by force disseised him , &c. and if land be conveyed over to many , or if the first disseisor be disseised , then the writ of entry shall be in the post ; viz. that the tenant hath no entry but after the disseisin , which the first disseisor made to the demandant or his ancestor . see entre en le per. entrie in the per , cui , and post . a writ of entrie in the per lies where a man is disseised of his free-hold , and the disseisor aliens , or dies seised , and his heir enters , then the disseisee or his heir shall have the said writ against the heir of the disseisor , or against the alienee of the disseisor ; but living the disseisor , he may have an assise , if he will , and the writ of entry shall say , in quod a non habet ingressum nisi per b , qui illud ei dimisit , qui inde eum injuste disseisivit , &c. but if the disseisor alien , and the alienee dies seised , or aliens over to another , or if the disseisor dies , and his heir enters , and that heir aliens or dies , and his heir enters ; then the disseisee or his heir shall have a writ of entre sur disseisin in the per and cui , and the writ shall say , in quod idem a non habet ingressum nisi per b cui c illud ei dimisit , qui inde injuste , &c. a writ of entry in the per and cui shall be maintainable against none , but where the tenant is in by purchase or discent : for if the alienation or discent be put out of the degrees , upon which no writ may be made in the per , or in the per and cui , then it shall be made in the post , and the writ shall say , in quod a non habet ingressum nisi post disseis ● nam quam b inde injuste & sine judicio fecit praef . t. n. vel m. proavo n. cujus haeres ipse est . also there are five things which put the wri ● of entrie out of the degrees ; viz. intrus●on , succession , disseisin upon disseisin , iudgment , and escheat . . intrusion is , when the disseisor dies seised , and a stranger abates . . diss ● isin upon disseisin is , when the disseisor is disseised by another . . succession is , when the disseisor is a man of religion , and dies , or is deposed , and his successor enters . . judgment is , when one recovers against the disseisor . . escheat is , when the disseisor dies without heir , or doth felony , whereby he is attaint , by which the lord enters as in his escheat . in all these cases the disseisee or his heir shall not have a writ of entrie within the degrees of the per , but in the post , because in those cases they are not in by discent , nor by purchase . entrie ad communem legem . also there is a writ of entrie ad communem legem , which lies where tenant for term of life , tenant for term of anothers life , tenant by the curtesie , or tenant in dower , aliens and dies , he in the revetsion shall have this writ against whomsoever is in after in the tenement . entrie in the case provided . a writ of entrie in casu proviso lies , if tenant in dower alien in fee , or for term of life , or for anothers life , living the tenant in dower ; he in the reversion shall have this writ , which is provided by the stat. of gloc. c. . entrie in casu consimili . a writ of entrie in casu consimili , lies where tenant for life or tenant by the courtesie , aliens in fee ; he in reversion shall have this writ , by the statute of westmin . . cap. . entrie ad terminum qui praeteriit . the writ of entrie ad terminum qui praeteriit , lies where a man leases land to another for term of years , and the tenant holds over his term ; the lessor shall have this writ . and if lands be leased to a man for term of anothers life , and he for whose life the lands are leased dies , and the lessee holds over ; then the lessor shall have this writ . entrie without assent of the chapter . a writ of entrie sine assensu capituli lies where an abbot , prior , or such as hath covent or common seal , aliens lands or tenements of the right of his church , without the assent of the covent or chapter , and dies ; then the successor shall have this writ . entrie for marriage in speech . a writ of entrie causa matrimonii praeloquuti lies where lands or tenements are given to a man upon condition , that he shall take the donor to his wife within a certain time , and he does not espouse her within the said term , or espouses another woman , or makes himself priest , or enters in religion , or disables himself so that he cannot take her , according to the said condition ; then the donor and her heirs shall have the said writ against him , or against whosoever is in the said land. but this condition must be made by indenture , otherwise this writ doth not lie . and all these , and other writs of entry , may be made in the per , cui , and post . entrusion . entrusion , is a writ that lies where a tenant for life dies seised of certain lands or tenements , and a stranger enters ; he in the reversion shall have this writ against the abator , or whosoever is in after their entrusion . also a writ of entrusion shall be maintainable by the successour of an abbot against the abator , who shall enter in lands or tenements in the time of vacation that belong to the church , by the statute of marlebridge , the last chapter . and it seems the difference between an intrudor and an abator is this ; that an abator is he that enters into lands void by the death of a tenant in fee , and an intrudor is he that enters into lands void by the death of a tenant for life or years . see f. n. b. fol. . entrusion de gard. entrusion de gard , is a writ which lies where the heir within age enters in his lands , and holds out his lord ; for in such case the lord shall not have the writ de communi custodia , but this writ of entrusion of the ward . old n. b. enure . enure signifies to take place or effect , to be available . as a release shall enure by way of extinguishment . lit. cha. release . equity . equity is in two sorts , and those of contrary effects ; for the one doth abridge and take from the letter of the law , the other doth enlarge and add thereunto . the first is thus defined ; equity is the correction of a law , generally made in that part wherein it fails ; which correction of the general words is much used in our law. as for example , when an act of parliament is made , that whosoever doth such a thing shall be a feion , and shall suffer death ; yet if a mad-man or an infant that hath no discretion do the same they shall be no felons , nor suffer death ther fore . also if a statute were made , that all persons that shall receive , or giv ● me ● t and drink , or other succor to any that shall do any such thing , shall be accessary to his offence , and shall suffer death , if they knew of the fact ; yet one doth such an act , and comes to his wife , who knowing thereof doth receive him , and gives him meat and drink , she shall not be accessary nor felon ; for by the generality of the said words , neither the m ● d-man , infant nor wife , were included in the intent of the law. and thus equity doth correct the generality of the law in those cases , and the general words are by equity abridged . the other equity is defined to be an extension of the words of the law to cases unexpressed , yet having the same reason . so that when the words enact one thing , they enact all other things that are of like degree . as the statute which ordains , that in an action of debt against executors , he that doth appear by distress shall answer , doth extend by equity to administrators ; for such of them as appear first by distress , shall answer by equity of the said act ; because they are of the like kind . so likewise the statutes of gloucester gives the action of waste , and the penalty of it against him that holds for life or years ; and by the equity thereof a man shall have an action of waste against him that holds but for one year or half a year , yet this is without the words of the statute ; for he that holds but for half a year or one year , doth not hold for years ; but that is the meaning , and the words that enact the one , by equity enact the other . errant . errant , id est , itenerans , comes from the french word errer , id est , errare , or if the old word erre , id est , iter ; and is appropriated unto iustices that go circuit , and to the bailiffs at large , who are therefore called justices errants , and bailiffs errants , because they go and travel from place to place , the one to do iustice , and the other to execute process . see eire . error . error is a fault in iudgement , or in the process , or proceeding to iudgment , or in the execution upon the same in a court of record ; which in the civil law is called , a nullitie . error is also the name of a writ that lies where iudgment is given in the common place , or before the iustice in assise , or oyer and terminer , or before the major and sheriffs of london , or in other court of record , against the law , or upon undue and ill process ; then the party grieved shall have this wrft , and thereupon cause the record and process to be removed before the iustices of the kings bench , and if the error be found , it shall be reversed . but if an erroneous iudgment be given in the kings bench , then it could not be reversed but by parliament , until the statute of eliz. cap. . also if such a default in iudgment be given in a court not of record , as in a county , hundred , or court-baron , the party shall have a writ of false iudgment , to cause the record to be brought before a iustice of the common-place . also if error be found in the exchequer , it shall be redressed by the chancellor and treasurer , as it appeas by the statute e. . an . . c. . & el. c. . also there is another writ of error upon a iudgment in the kings bench ; and that is , where the plaintiff assign matter of fact for error : and this lies in the same court for this court , can redress their errors in fact , ( but not their errors in law ) but the court of common b. cannot do so . escape . escape is , where one that is arrested comes to his liberty before he be delivered by award of any iustice , or by order of law. escape is in two sorts ; voluntary , and negligent . voluntary escape is , when one doth arrest another for felony or other crime , and after he in whose custody he is lets him go where he will. and if the arrest were for felony , then shall it be felony in him that suffered the escape ; if for treason , then treason in him ; and if for trespass , then trespass ; and so in all other . when one is arrested , after escapes against the will of him that did arrest him , and is not freshly pursued , and taken before the pursuer loses the sight of him ; this shall be said a negligent escape , notwithstanding that he out of whose possession he escaped do take him after he lost sight of him . a so if one be arrested , and after escape , and is at his liberty , and he in whose ward he was take him afterward , and bring him to the prison ; yet it is an escape in him . if a felon be arrested by the constable , and brought to the goal in the county , and the goaler will not receive him , and the constable lets him go , and the goaler also , and so he escapes ; this is an escape in the goaler , for that in such case the goaler is bound to receive him by the hand of the constable , without any precept of the iustice of peace . but otherwise it is , if a common person arrest another upon suspicion of felony , there the goaler is not bound to receive him without a precept of some iustice of peace . there is an escape also without an arrest : as if murder be made in the day , and the murderer be not taken , then it is an escape , for which the town where the murder was done shall be amerced . and it is to be observed , that a man may be said to escape , notwithstanding he always continues in prison . as , if a man be in prison upon two executions at the suit of two several men , and the old sheriff delivers over this prisoner to the new sheriff by indenture according to the usual course , and in the said indenture makes no mention of one of the said executions ; this omission shall be said an escape in law instantly , for which the old sheriff shall answer , although the execution was matter of record , whereof the new sheriff might have taken notice . but otherwise it is where the old sheriff dies , for in such case it behoves the new sheriff at his peril to take notice of all the executions that are against any person that he finds in the gaol : but in the said case , where the sheriff dies , and before another is made , one that is in execution breaks the gaol , and goes at large , this is no escape ; for when a sheriff dies , all the prisoners are in the custody of the law , until a new sheriff be made . see coke , lib. . fol. . if the sheriff upon a capias ad satisfaciendum to him directed , makes return , that he hath taken the body , and yet hath not the body in court at the day of the return ; the plaintiff may have his action against the sheriff for the escape , although the party so taken be in the gaol . see h. . . br. . escheat . escheat is , where a tenant in fee-simple commits felony , for which he is hanged , or abjured the realm , or outlawed of felony , murder , or pety treason , or if the tenant die without heir general or special ; then the lord of whom the tenant held the land , may enter by way of escheat ; or if any other enter , the lord shall have against him a writ called a writ of escheat . escheator . escheator is the name of an officer that observes the escheats of the king in the county whereof he is escheator , and certifies them into the exchequer . this officer is appointed by the l. treasurer , and by letters patents from him , and continues in his office but one year ; neither can any be escheator but once in three years . an. . h. . cap. . and an . ejusdem cap. . see more of this officer and his authority , in crompton's justice of peace . see an. ed. . the form of the oath of the escheator see in the regist . orig . fol. . b. and the escheator is an officer of record , and may ordain an under-escheator , as the sheriff may an under-sheriff ; yet the escheator cannot return any office by vertue of his office , but he shall be punished . see f. n. b. . office escaetriae is the escheatorship . reg. orig . fol. . exchequer . exchequer ( scaccarium ) comes of the french word eschequier , id est , abacus , which in one signification is taken for a counting-table , or for the art or skill of counting . and from thence ( as some think ) the place or court of the receits and accounts of the revenues of the crown is called the exchequer . others have otherwise derived the name . but the exchequer is defined by crompton in his jurisd . of courts , fol. . to be a court of record , wherein all causes touching the revenues of the crown are handled . escrow . an escrow is a deed delivered to a third person to be the deed of the party upon a future condition , and is called in latine schedula . rast . ent. . escuage . escuage , in latine scutagium , that is , service of the shield , and he that held by escuage , held by knight-service ; and to that did belong ward , marriage , and relief , &c. but see the stat. car. . c. . for taking away the court of wards and liveries , and turning all tenures into free and common soccage . escuage was a certain sum of mony levied by the lord of his tenant , after the quantity of his tenure , when escuage ran through all england , and was ordained by all the council of england , how much every tenant should give his lord ; and that was properly to maintain the wars against scotland or wales , and not against other lands , for that those lands did of right belong to the realm of england . see lit. lib. . cap. . eslisors . are persons nominated by a court of law , to whom a venire facias is directed ( by challenge to the sheriff and coroners ) who return the writ in their own names , with a panel of the iurors names . e. . . pl. . esnecy . esnecy is a priviledge given the eldest coparcener , to choose first after the inheritance is divided . flet. lib. . cap. . esplees . esplees is the profit or commodity that is to be taken of a thing : as of a common , the taking of the grass by the mouths of the beasts that common there ; of an advowson , the taking of gross tithes by the parson ; of wood , the ● elling of wood ; of an orchard , the selling of apples and other fruit growing there ; of a mill , the taking of toll , are the esplees , and of such like . and note , that in a writ of right of land , advowson , or such like , the demandant ought to alledge in his count , that he or his ancestors took the esplees of the thing in demand , otherwise the pleading is not good . essendi quietum de tolonio . esendi quietum de tolonio , is a writ to be quit of toll , and lies in case where the citizens or burgesses of any city or borough have been acquitted of toll by the grant of the kings progenitors throughout the whole realm , or by prescription ; then if any man of the said cities or boroughs come with his merchandises to any town , fair , or market , and there put them to sale , or buy any merchandises , if the officers of the said town will demand any toll of him against the kings charter , or against the vsage and custom , he may sue and have such a writ . fitz. n. b. fol. . regist . original , fol. . essoine . essoine : where an action is brought , and the plaintiff or defendant may not well appear at the day in court , for one of the five causes under specified , he shall be essomed to save his default . there are five manner of essoins : viz. essoine de ouster le mere , by which the defendant shall have a day by forty days . the second is , de terra sancta , and upon this the defendant shall have a day by a year and a day ; and these two shall be laid in the beginning of the plea. the third essoin is , de male vener , and that shall be adjourned to a common day , as the action requires ; and this is called the common essoine : and when and how this essoine shall be , see the statutes , and the abridgment of statutes , where it is well declared . the fourth is , de malo lecti , and that is only in a writ of right , and thereupon there shall a writ go out of the chancery directed to the sheriff , that he shall send four knights to see the tenant , and if he be sick , to give a day after a year and a day . the fifth essoine is , de service del roy , and it lies in all actions , except i ● assise de novel disseisin , writ of dower , darreine presentment , and in appeal of murther : but in this essoine it behoves at the day to shew his warrant , or else it shall turn to a default , if it be in a plea real ; or else he shall lose xx s. for the journey , or more , by the discretion of the iustice , if it be in a plea personal , as it appears by the statute of gloucest . cap. . essoino de malo lecti . essoino de malo lecti , is a writ directed to the sheriff , to send four lawful knights to view one that hath essoined himself de malo lecti . reg. orig. fol. . b. establishment de dower . establishment de dower seems to be the assurance of dower made by the husband or his friends before or at the time of the marriage : and assignment of dower is the setting it out by the heir afterward , according to the establishment . brit. cap. , . estandard . estandard or standard signifies an ensign in war ; but is also used for the principal or standing measure of the king , to the proportion whereof all the measures through the land are and ought to be framed by the clerk of the market , aulneger or other officer , according to their function . for it was established by magna charta , ann . h. . c. . that there should be but one scantling of weights and measures through all the realm : which is since confirmed by an. ed. . cap. . and many other statutes ; as also that all should be ● itted to the standard sealed with the kings seal . and there is good reason that it should be called a standard , because it stands constant and immoveable , and hath all other measures coming towards it for their conformity ; as souldiers in the field have their standard or colours for their direction in their march or skirmish . of these standards and measures read britton . cap. . see the statute car. . cap. . estate . estate , is that title or interest that a man hath in lands and tenements ; as estate simple , otherwise called fee-simple , and estate conditional or upon condition ; which is either upon condition in deed , or upon condition in law. see littleton , lib. . cap. . estoppel . estoppel is , when one is concluded and forbidden in law to speak against his own act or deed , yea , though it be to say the truth . and of estoppels there are divers . one for example is , when j. s. is bound in obligation by the name of t. s. or any other name , and is sued afterward according to the name in the obligation ; now he shall not be received to say that he is misnamed , but shall be driven to answer according to the name put in the obligation , that is , t. s ; for peradventure the obligee did not know his name but by the report of the obligor himself : and inasmuch as he is the same man that was bound , he shall be estopped , and forbidden in law to say contrary to his own deed ; for otherwise he might take advantage of his own wrong , which the law will not suffer a man to do . if the daughter who is heir to her father will sue livery with her sister who is a bastard , she shall not afterward be received to say that her sister is a bastard , insomuch as if her bastard-sister take half the land , there is no remedy by the law. also if a man seised of lands in fee-simple will take a lease for years of the same land of a stranger by deed indented ; this is an estoppel during the term of years , and the lessee is thereby barred to say the truth , which is , that he that leased the land had nothing in it at the time of the lease made , and that the fee-simple was in the lessee : but this he shall not be received to say till after the years are determined , because it appears that he hath an estate of years , and it was his folly to take a lease of his own lands , and therefore shal thus be punished for his folly . estovers . estovers are nourishment or maintenance : and bract. l. . tract . . c. . num . . uses it for such sustenance as a man , taken for felony , is to have out of his lands or goods for himself and his family during his imprisonment . and the statute of e . c. . uses it for an allowance in meat or cloth. it is also used for certain allowances of wood to be taken out of another mans wood ; westm . . c. . anno . . west . part . . tit . fines , sect . . saith , that the name estovers comprehends house-boot ; hedge-boot , and plow-boot ; as if one hath in his grant these general words , reasonable estovers in the woods , &c. he may thereby claim those three . estrangers . estrangers are sometimes taken for those that are not parties or privies to the levying of a fine , or making of a deed ; sometimes those that are born beyond sea. estray . estray is , where any beast or cattel is in any lordship , and none knows its owner ; then it shall be seised to the use of the king , or of the lord that hath such estray by the kings grant , or by prescription : and if the owner make claim thereto within a year and a day , he shall have it again ; otherwise after the year , the property thereof shall be to the lord , provided he make proclamation of it according to law. estreat . estreat is a figure or resemblance , and is commonly used for the copy or true note of an original writing ; as estreats of amerciaments imposed in the rolls of a court , to be levied by the balliff , or some other officer , of every man that hath offended . see f. n. b. & . and so it is used in westm . . c. . estrepment . estrepment is a writ that lies where one is impleaded by a praecipe quod reddat for certain land ; if the demandant suppose that the tenant will do waste depending the plea , he shall have against him this writ , which is a prohibition , commanding him to do no waste , depending the plea. and this writ lies properly where a man demands lands by formedon , or writ of right , or such writs where he shall not recover dammages ; for in such writs where he shall recover dammages , he shall have his dammages , with regard to the waste done . etate probanda . etate probanda is a writ of office , and it lies for the heir of the tenant that held of the king in chief , to prove he is of full age , directed to the sheriff to enquire of his age ; and then he shall become tenant to the king by the same services that his ancestors made to the king. but it is said , that every one that shall pass in this enquest , shall be of the age of xlii . years at least . but see the stat. car. c. . for abolishing the court of wards and liveries , &c. evesdroppers . evesdroppers are such as stand under walls or windows by night or day to hear news , and to carry them to others , to make strife and debate amongst their neighbors : those are evil members in the common-wealth , and therefore by the stat. of westm . . c. . are to be punished . and this misdemeanor is presentable and punishable in the court-leet , kitch . f. . evidence . evidence is generally used for any proof , be it by the testimony of men , or by writing . sir tho. smith , l. . c. . uses it in both senses , in these words ; evidence is authentical writings of contracts , according to the manner of england , that is , written , sealed , and delivered . and l. . c. . speaking of the prisoner that stands at the bar to plead for his life , and of those that charge him with felony , thus ; then he tells what he can say ; after him also all those who were at the apprehension of the prisoner , or who can give any signs or tokens , which we call in our language , evidence against the malefactor . exaction . exaction is a wrong done by an officer , or by one pretending to have authority , in demanding or taking any reward or fee for that matter , cause or thing , which the law allows not . the difference between exaction and extortion , is this : extortion is , where an officer demands and extorts a greater sum or reward then his just fee : and exaction is , where an officer or other man demands and wrests a fee or reward , where no fee or reward is due at all . see extortion . exception . exception is a bar or stay to an action ; and is divided into exception dilatory , and peremptory . of these two see bracton , l. . tract . . and britton , c. , . exchange . exchange is , where a man is seised of certain land , and another is seised of other land , if they by a deed indented , or without deed , if the lands be in one county , exchange their lands , so that each of them shall have other lands to him so exchanged in fee , fee-tail , or for term of life , that is called an exchange , and is good without livery and seisin . in exchange the estates to them limited must be egal ; for if one should have an estate in fee in his land , and the other an estate in the other land but for term of life , or in tail , such exchange is void ; but if the estates be egal , though the lands be not of egal value , yet the exchange is good . also an exchange of rent for land is good . and an exchange between rent and common is good , and that ought to be by deed. also it behoves alway that this word exchange be in the deed , or else nothing passes by it , except he have livery and seisin . exchequer . exchequer , see exchequer . excommengement . excommengement is to say in latine , excommunicatio , and it is where a man by judgment in court christian is excommenged , by which he is disabled to sue any action in the kings court ; and if he remain excommunicate xl . days , and will not be justified by his ordinary , then the bishop shall send his letter patent to the chancellour to certifie this excommunication or contempt ; and thereupon the sheriff shall be commanded to take the body of him that is accursed , by a writ called , de excommunicato capiendo , till he hath made satisfaction to holy church for the contempt and wrong : and when he is justified , the bishop shall send his letters to the king , certifying the same ; and then the sheriff shall be commanded to deliver him by a writ called excommunicato deliberando . see the statute eliz. cap. . excommunication . excommunication . see excommengement . execution . execution is , where iudgment is given to any action , that the plaintiff shall recover the land , debt , or dammages , as the case is ; and when any writ is awarded to put him in possession , or to do any other thing whereby the plaintiff should the better be satisfied his debt or dammages , that is called a writ of extention ; and when he hath the possession of the land , or is paid the debt or damages , or hath the body of the defendant awarded to prison , then he hath execution . and if the plea be in the county , or court-baron , or hundred , and they defer the execution of the iudgment in favor of the party , or for other cause ; the demandant shall have a writ de executione judicii . note , that in a writ of debt a man shall not have recovery of any lands , but of those which the defendant hath the day of the iudgment yielded . and of chattels , a man shall have execution only of the chattels which he hath the day of the execution sued . executione facienda . executione facienda , is a writ commanding execution of a iudgment ; the divers uses whereof see in the table of the reg. judic . executor . executor is , when a man makes his testament and last will , and therein names the person that shall execute his testament , that is his executor , and is as much in the civil law as haeres designatus , or testamentarius , as to debts , goods and chattels of his testator : and such an executor shall have an action against every debtor of his testator ; and if the executor hath assets , every one to whom the testator was in debt , shall have an action against him , if he have an obligation or specialty ; but in every case where the testator might wage his law , no action lies against the executor . see hereof before in the title administrators . and if any other person not made executor , take or sell the goods of the deceased , he may be sued as executor of his own wrong , in the same form as other executor . see the statute of car. . cap. . exemplification . exemplification is , when a man will have any original record written out and exemplified forth of the court where it remains , to which purpose he may have a writ , as appiert by the reg. orig . f. . and if a man will plead a record in other court then where it remains , it behoves him to have it exemplified under the great seal of england ; for if it be exemplified under the seal of the common pleas , exchequer , or such like , it will not serve , unless in evidence to a iury. see coke l. . f. . see the statute of eliz. cap. . and el. . the force and use of exemplifications of patents , &c. exemption . exemption is a priviledge to be free from service or apparance : and therefore a baron & baronness , by reason of their dignity , are exempted to be sworn upon any inquest . coke l. . f. . also knights , clerks , and women are exempted to appear at leets , or the sheriffs tourn : and that is by the statute of marlebridge , c. . and a man may be exempted from being put upon enquests and iuries by the kings letters patents ; as the president and colledge or commonalty of physicians in london , were by the letters patents of king h. . coke l. . f. . ex gravi querela . ex gravi querela . see before in the title devise . exigent . exigent is a writ that lies where a man sues an action personal , and the defendant cannot be found , nor hath any thing within the county whereby he may be attached or distrained : then this writ shall go forth to the sheriff , to make proclamation at five counties , every one after another , that he appear , or else that he shall be out-lawed : and if he be outlawed , then all his goods and chattels are forfeit to the king. in an indictment of felony the exigent shall go forth after the first capias . and in a capias ad computandum , or ad satisfaciendum , and in every capias that goes forth after iudgment , the exigent shall go forth after the first capias . and also in appeal of death ; but not in an appeal of robbery or mayhem . with this exigent issueth also a writ by the statute of el. cap. . to make three proclamations against the defendant , which is not in exigents after iudgment . exigenter . exigenter , is an officer of the common pleas , of which there are four . they make out all exigents and proclamations in all actions , in which process of outlawry lies . and they make writs of supersedeas , as well as the preignotaries upon such exigents as were made in their office. of this officer there is mention made in the statutes of h. . c. . & h. . c. . ex mero motu . ex mero motu are words frequently used in the kings charters , whereby he signifies , that he doth that which is contained in the charter of his own will and motion , without petition or suggestion made by any other : and the effect of these words is , to bar all exceptions that might be taken to the instrument wherein they are contained , by alledging , that the king in passing that charter was abused by any false suggestion . kitch . f. . and when the kings charter hath therein these words , it shall be taken most strongly against the king ; therefore if the king , ex mero motu , pardon to b. all his debts , all the debts that b. ows as sheriff are by this pardoned ; and in like manner it is in many other cases , where these words shall be taken as strongly against the kings , as if a common person had made the grant. see coke , l. . f. . ex parte talis . ex parte talis . see before , tit. account . expeditate . expeditate is a word often used in the forrest , signifying to cut out the balls of great dogs feet , for preservation of the kings game . and one of the articles to be enquired touching the forrest , is , if all great dogs or mastives in the forest are expeditated , according to the laws of the forrest ; and if any be not , the owner of every such dog shall forfeit to the king three shillings and four pence , cromp. jurisd . fol. . manwood uses the same word , and ( part . . of his forrest law , fol. . ) sets down the manner of expeditating dogs heretofore , which was , that the three claws of the fore-foot on the right side shall be cut off by the skin ; whereunto he also adds out of the ordinance called the assise of the forrest , that the same manner of expeditating dogs shall be still used and kept , and none other . quaere whence it arises that crompton and he differ ; the one saying the ball of the foot is cut out ; the other , that the three fore-claws are cut off by the skin . expensis militum levandis . expensis militum levandis , is a writ directed to the sheriff for levying the allowance for the knights of the parliament , regist . orig . fol. . b. and expensis militum non levandis de hominibus de antiquo dominico , nec a nativis , is a writ to prohibit the sheriff to levy any allowance for the knights of the county upon such as hold in ancient demesne , &c. ibidem fol. . b. extend . extend is , to value the lands or tenements of one bound by statute , &c. that hath forfeited it , and to deliver them to the conusee at such indifferent rates , as that by the yearly profits the conusee in time may be satisfied his debt . see fitz. nat. b. fol. . and coke , lib. . fol. . fulwoods case . extent . extent has two significations : the one is a writ or commission to the sheriff for the valuing of lands or tenements ; the other , the act of the sheriff or other commissioner upon that writ . broke , tit . extent . fol. . extinguishment . extinguishment is , where a lord , or any other , hath any rent or service going out of any land , and he purchases the same land , so that he hath such estate in the land as he hath in the rent ; then the rent is extinct , for that one may not have rent going out of his own land. also when any rent shall be extinct , the land and the rent must be in one hand , the estate indefesible , and he have as good estate in the land as in the rent ; for if he have estate in the land but for life or years , and hath fee-simple in the rent , then the rent is not extinct , but in suspence for that time , and after the term the rent is revided . if there be lord , mesne , and tenant , and the lord purchase the tenancy , the mesnalty is extinct ; but the mesne shall have the surplusage of the rent , if there be any , as rent-seck . also if a man have a high-way appendant , and after purchase the land wherein the high-way is , then the way is extinct : and so it is of a common appendant . extortion . extortion is wrong done by any officer , ordinary , archdeacon , official , major , bailiff , sheriff , escheator , coroner , under-sheriff , goaler , or other officer , by colour of his office , by taking excessive reward or fee for execution of his office , or otherwise ; and is no other thing indeed then plain robbery , or rather more odious then robbery : for robbery is apparent , and always hath with it the countenance of vice : but extortion , being as great a vice as robbery is , carries with it a countenance of vertue , by means whereof it is the more hard to be tried or discerned , and therefore the more odious . and yet some there are that will not stick to stretch their office , credit , and conscience , to purchase mony , as well by extortion as otherwise , according to the saying of the poet virgil , what is it that the greedy thirst of gol ● doth not constrain mortals to attempt ? f. faculty . faculty is a word often used in the statute of hen. . cap. . and it signifies a priviledge or special dispensation granted unto a man by favour and indulgence , to do that which by the law he cannot do ; as to eat flesh upon days forbidden , or to hold two or more ecclesiastical livings , and the like . and for the granting of these faculties , there is a special officer under the arch-bishop of canterbury , called , the master of the faculties . failing of record . failing of record is , when an action is brought against one , who pleads any matter of record , and avers to prove it by record ; and the plaintiff saith there is no such record ; whereupon the defendant hath day given him to bring in the record ; at which day he fails , or brings in such a one as is no bar to this action : then he is said to fail of his record ; and thereupon the plaintiff shall have iudgment to recover , &c. faint action . faint pleading . faint action ( as littleton , fol. . saith ) is as much as to say in english , a fained action , that is , such action , as though the words of the writ be true , yet for certain causes he hath no title by the law to recover by the same action : and a false action is , where the words of the writ are false . so faint pleading is a covinous , false , and collusory manner of pleading , to the deceit of a third party . and against such faint pleading , amongst other things , the old statute in e. . cap. . seems to be made . deed. deed is a writing sealed and delivered , to prove and testifie the agreement of the party whose deed it is to the thing contained in the deed : as a deed of feoffment is a proof of the livery of seisin , for the land passes by the livery of seisin ; but when the deed and the delivery are joyned together , that is a proof of the livery , and that the feoffor is contented that the feoffee shall have the land. all deeds are either indented , whereof there are two , three , or more parts , as the ease requires ; of which the feoffor , grantor , or lessor hath one ; the feoffee , grantee , or lessee another ; and peradventure some other body a third , &c. or else they are poll deeđs , single , and but one , which the feoffee , grantee or lessee hath . &c. and every deed consists of three principal points , ( without which it is no perfect deed to bind the parties ) namely , writing , sealing , and delivery . . by writing is shewed the parties names to the deed , their dwelling-places , their degrees , the thing granted , upon what considerations , the estate limited , the time when it was granted , and whether simply , or upon condition , with other such like circumstances . but whether the parties to the deed write in the end their names , or set to their marks , ( as it is commonly used ) it matters not at all , ( as i think ) for that is not meant , where it is said , that every deed ought to have writing . . sealing is a farther testimony of their consents to what is contained in the deed ; as it appears in these words , in witness whereof , &c. or to such effect , always put in the latter end of deeds , without which words the deed is insufficient . and because we are about sealing and signing of deeds , it shall not be much amiss here to shew you , for antiquities sake , the manner of signing and subscribing deeds in our ancestors the saxons time , a fashion differing from that we use now , in this , that they to their deeds subscribed their names , ( commonly adding the sign of the cross ) and in the end did set down a great number of witnesses , not using at that time any kind of seal : and we at this day , for more surety , both subscribe our names , ( though that be not very necessary ) and put to our seals , and use the help of witnesses besides . that former fashion continued absolute until the time of the conquest by the normans , whose manners by little and little at the length prevailed amongst us ; for the first sealed charter in england , is thought to be that of king edward the confessour , to the abbey of westminster , who being educated in normandy , brought into this realm that and some other of their fashions with him . and after the coming of william the conquerour , the normans liking their own country custom , ( as naturally all nations do ) rejected the manner that they found here , and retained their own , as ingulphus the abbot of croiland , who came in with the conquest , witnesses , saying ; the normans do change the making of writings ( which were wont to be firmed in england with crosses of gold , and other holy signs ) into an impression of wax , and reject also the manner of the english writing . howbeit , this was not done all at once , but it increased and came forward by certain degrees : so that first and for a season the king only , or a few other of the nobility , used to seal ; then the noble-men , for the most part , and none other . which thing a man may see in the history of battel abbey , where richard lucie chief iustice of england , in the time of king henry the second , is reported to have blamed a mean subject , for that he used a private seal , whereas that pertained , ( as he said ) to the king and nobility only . at which time also ( as j. rosse notes it ) they used to ingrave in their seals their own pictures and counterfeits , covered with a long coat over their armors . but after this , the gentlemen of the better sort took up the fashion , and because they were not all warriors , they made seals ingraven with their several coats or shields of arms , for difference sake , as the same author reports . at length , about the time of king edward the third , seals became very common ; so that not only such as bare arms used to seal , but other men also fashioned to themselves signers of their own devices , some taking the letters of their own names , some flowers , some knots and flourishes , some birds and beasts , and some other things , as we now yet daily see used . some other manners of sealing besides these have been heard of among us ; as namely , that of king edward the third , by which he gave to norman the hunter , the hop and the hop-town , with all the bounds upside down : and in witness that it was sooth , he bit the wax with his foretooth , the like to this was shewed me by one of my friends in a loose paper , but not very anciently written , and therefore he willed me to esteem of it as i thought good : it was as follows . i william king , give to thee powlen royden my hop and my hop-lands , with all the bounds up and down , from heaven to earth , from earth to hell , for thee and thine to dwell , from me and mine , to thee and thine , for a bow and a broad arrow , when i come to hunt upon yartow . in witness that this is sooth , i bit this wax with my tooth , in the presence of magge , maud , and margery , and my third son henry , also that of alberick de vere , containing the donation of hatfield , to which he affixed a short black-hafted knife , like an old half-peny whittle , instead of a seal : with divers such like . but some peradventure will think , that these were received in common use and custom and that they were not the devices and pleasures of a few singular persons : such are no less deceived then they that deem every charter and writing , that hath no seal annexed , to be as ancient as the conquest ; whereas indeed sealing was not commonly used till the time of king edw. . as hath been already said . . delivery , though it be set last , is not the least ; for after a deed is written and sealed , if it be not delivered , all the rest is to no purpose . and this delivery ought to be done by the party himself , or his sufficient warrant ; and so it will binde him whosoever wrote or sealed the same : and by this last act the deed is made perfect , according to the intent and effect of it ; and therefore in deeds the delivery is to be proved , &c. thus you see , writing and sealing , without delivery , is nothing to purpose : sealing and delivery , where there is no writing : work nothing : and writing and delivery , without sealing , make no deed , therefore they all ought joyntly to concur to make a perfect deed. faitour . faitour is a word used in the old repealed statute of r. . cap. . and it is there taken in the worser sense , for an evil doer , or an idle companion , and it seems there to be a synomymon to vagabond . fardingdeale . fardingdeal , otherwise farundel , of land , signifies the fourth part of an acre , cromptons jurisd . fol. . b. quadrantata terrae is read in the reg. orig fol. b where you may have denariata and obolata , solidata and librata terrae , which by probability must rise in proportion of quantity from fardingdeal , as a half-peny , peny , shilling , or pound , rise in value or estimation ; then must obolata be half an acre , denariata the acre , solidata twelve acres , and librata twelve score acres . yet in the reg. orig . fol. , and . you may find viginti libratas terrae vel reditus ; whereby it seems that librata terrae is as much as yields twenty shillings by the year ; and centum solidatas terrarum , tenementorum , & redituum , fol. . and in f. n. b. f. . there are these words , viginti libratas terrae vel reditus , which proves this to be so much land as is rated at twenty shillings by the year . see furlong . farm , or ferm . farm , or ferm , is usually the chief messuage in a village or town , whereto belongs great demeans of all sorts , and hath been used to be let for term of life , years , or at will. the rent that is reserved upon such a lease , or the like , is called farm , or ferm . and farmor or fermor , is he that tenants the farm or ferm , or is lessee thereof . also generally every lessee for life , years , or at will , is called farmor , or fermor . and note , that they are calltd farms , or ferms , of the saxon word feormian , which signifies to feed ; or yield victual : for in ancient time their reservations were as well in victuals as money ; until at the last , and that chiefly in the time of king henry the first , by agreement , the reservation of victuals was turned into ready money , and so hitherto hath continued amongst most men . fate , or fatt . fate , or fatt , is a measure mentioned in the statutes of h. . cap. . and h. . cap. . to contain eight bushels : but the citzens and merchants of london ( as it appears by those statutes ) and the kings purveyors would have that measure and a bushel over for one quarter ; and so they had nine bushels for one quarter of corn. faux imprisonment . faux imprisonment is a writ that lies where a man is arrested and restrained from his liberty by another against the order of the law ; then he shall have against him this writ , whereby he shall recover dammages . see more thereof before , tit , arrest . faux judgment . faux judgment . see thereof before , tit . error . fealty . fealty is a service , called in latine fidelitas , and shall be done in this manner ; viz. the tenant shall hold his right hand upon a book , and shall say to his lord ; i shall be to you faithful and true , and shall bear to you faith for the lands and tenements which i claim to hold of you , and truly shall do you the customs and services that i ought to do to you at the terms assigned ; so help me god : and shall kiss the book : but he shall not kneel , as in doing homage . and thereof see after in the title homage . also fealty is incident to all manner of tenures . fee. fee ( feodum ) is in our law an equivocal word of divers significations : for it is most usually taken for an estate of inheritance in lands and tenements to one and his heirs , or to one and the heirs of his body . but it is used also for the compass , circuit or extent of a lordship or mannor . and from thence comes the ordinary plea in bar to an avowry , that the land upon which he avows is out of his fee. and thirdly , it is taken for a reward or wages given to one for the execu ● 〈◊〉 of his office ; as the fee of a forrester , or the keeper of a park , or a sheriffs fee sor ● erving an execution , lim ●● s by the statute of eliz. cap . and it is also taken for that consideration which is given a sergeant at law , or a councellor , or a physitian , for their counsel or advice in their profession , which ( as it is well observed by sir jo. davies , in his preface to his reports ) is not properly merces , but honorarium , yet in our law-language it is called his fee. fee expectant . fee expectant : where lands are given to a man and his wife in frank-marriage , to have and to hold to them and their heirs , in this case they have fee-simple ; but if they are given to them and the heirs of their body , &c. they have tail and fee-expectant , kitch . fol. . fee farm. fee farm is , when a tenant holds of his lord in fee-simple , paying to him the value of half , or of the third , fourth , or other part of the land by the year . and he that holds by fee-farm , ought not to pay relief , or do any other thing that is not contained in the feoffment , but fealty , for that belongs to all kind of tanures . fee-simple . fee-simple is , when any person holds lands or rent , or other thing , inheritable to him and his heirs for evermore ; and these words , his heirs , make the estate of inheritance ; for if the land be given to a man for ever , yet he hath but an estate for life . also if tenant in fee-simple die , his first son shall be his heir ; but if he have no son , then all his daughters shall be his heirs , and every one shall have her part by partition : but if he have no son nor daughter , then his next coufin collateral of the whole blood shall be his heir . fel de se . felo de se , is he that commits felony by murthering himself . see crompt . justice of peace , fol. . felony . felony is a general term , which comprehends divers hainous offences , for which the offenders ought to suffer death , and lose their lands . and it seems that they are called felonies , of the latine word fel , which is in english , gall , in french , fiel ; or of the ancient english word , fell , or fierce , because they are intended to be done with a fell , fierce , or mischievous mind . when a man without any colour of law steals the goods of another , amounting to the value of twelve pence or more , that is larceny : but if he approaches the person of another in the high-way , and robs him of his goods , although it be but to the value of one peny , it is felony ; and that is called robbery , and therefore he shall be hanged . fence-moneth . fence-moneth is a forrest word , and signifies the time of days in the year , that is to say , days before midsummer , and days after , in which time it is forbidden for any man to hunt in the forrest , or to go into it to disturb the wild beasts . the reason of which is , because the female deer do then fawn . and therefore this moneth is called the fence-moneth , or defence-moneth , for that the deer are then to be defended from scare or fear . see manwood . forrest laws , cap. . fol. . b. feodarie . feodarie was an officer in the court of wards , appointed by the master of that court , by virtue of the statute h. . c. . to be present with the escheator in every county at the finding of offices , and to give in evidence for the king as well for the value as the tenure . and his office was also to survey the lands of the ward after the office found , & to return the true value thereof into the court ; to assign dower unto the kings widows ; to receive all the rents of the wards lands within his circuit , and to answer them to the receiver of the court. but see the stat. c ● r. . c. . for abolishing the said court. feoffment . feoffment is , where a man gives lands , houses , or other corporal things which are heritable to another in fee-simple , and thereof delivers seisin and possession . also if one make a gift in tail , or a lease for life , livery and seisin must be given , or else nothing shall pass by the grant. feoffor and feoffee . feoffor is he that infeoffs or makes a feoffment to another of lands or tenements in fee-simple : and feoffee is he who is infeoffed , or to whom the feoffment is so made . ferdfare . ferdfare is , to be quit from going to war , flet. lib. . c. . ferdwit . ferdwit is , to be quit of murther committed in the army , flet. l. . c. . ferry . is a liberty by prescription , or the kings grant , to have a boat for passage upon a great stream for cariage of horses and men for reasonable toll . feude . feude , or deadly feude , is a german word , and signifies implacable hatred , not to be satisfied but with the death of the enemy : such is that amongst the people in scotland and in the northern parts of england , which is a combination of all the kindred to revenge the death of any of the blood upon the slayer and all his race . and this word is mentioned in the stat. of eliz. c. . fieri facias . fieri facias is a writ judicial , and lies where a ●● an recovers debt or da ●● nages in the kings court ; 〈◊〉 a he shall have this writ to the sheriff , commanding him that he levy the debt and dammages of the goods of him against whom the recovery is had : and it lies only within a year and a day , and after the year he must sue a scire facias ; and if the party be warned , and doth not come at the day , &c. or if he come , and can say nothing , then he who recovers shall have a writ of fieri facias directed to the sheriff , that he make execution of iudgment . but if a man recover against a woman , and she takes a husband within the year and the day ; then he that recovers must have a scire facias against the husband . so it is if an abbot or prior recover and die , his successor , within the year shall have a scire facias . see thereof more in the title scire facias , and title execution . there is also another manner of fieri facias against a rector , where upon a general fieri facias the sheriff returns , quod nulla habet bona seu catalla , and thereupon a writ is directed to the bishop of the diocess where he is rector , and thereupon the bishop levies the debt of the profits of the gleab & tithes of the rectory . fifteenth . fifteent ● see quinzisme . f ● lazer . filazer ( of the french word filace , id est , a thread ) is the name of an officer in the common pleas , of which there are . they make dut all the original process there , and the distress infinite upon summons returned in personal actions , and the capias upon the return of nihil , and all writs of view , in cases where the view is prayed . and where the appearance is with them , they enter the impariance , and the general issue in common actions , and iudgments by confession before issue joyned , and make out writs of execution upon them . and they make writs of supersedeas after a capias awarded , when the defendant appears in their office. and this officer is mentioned in the statutes of h . c. . & h. . c. . file . file ( filacium ) is a thread or wire upon which writs and other exhibits in courts are put , for the safer keeping of them together . finders . finders is a word used in many statutes , as in r. . c. . r. . c. . h. c. . and h. . c. . and seems to be all one with those officers which we now call searchers , imployed for the discovery of goods which are imported or exported without paying custom . fine . fine sometimes is taken for a sum of money which one is to pay to the king for any contempt or offence ; which fine every one that commits any trespass , or is convict that he falsly denies his own deed , or did any thing in contempt of law , shall pay to the king : which is called fine to the king. sometime a fine is taken for a final agreement which is had between any persons concerning any land or rent , or other thing , whereof any suit or writ is between them hanging in any court ; which may be divers ways : one is , when any party acknowledges that to be the right of the other , as that he hath of the gift of him that made the recognizance , which always supposes a feoffment going before , and is called a fine executed : or if he acknowledged that to be the right of another , omitting these words ( cōe ceo que il eit de son done ) this being a fine upon acknowledging of ● ight only , if it be levied to him which hath the freehold of the land , is a fine upon a release . if he that acknowledged it is seised , and he to whom it is levied hath not the free-hold of the land , then it is called a fine executory , which he to whom the land is acknowledged may execute by entry , or scire facias . sometime such a fine sur conusance de droit only is to make a surrender : wherein is rehearsed , that the reconusor hath an estate for life , and the other a reversion . sometime it is taken to pass a reversion , where a particular estate is recited to be in another , and that the reconusor will that the other shall have the reversion , or that the land shall remain to another after the particular estate spent . and sometime he to whom the right is acknowledged , as that which he hath of the gift of the reconusor , shall yield the land , or a rent out thereof to the conusor . and that sometime for the whole fee ; sometime for one particular estate with remainder or remainders over ; and sometime with reversion of rents with distress and grant thereof over by the said fine . it is called a fine , because thereby the suit is ended ; and if it be recorded with proclamation , according to the statute h. . it bars strangers . fine force . fine force , signifies an absolute necessity ; as when a man is compelled to do that which he can no way avoid , we say he doth it de fine force . so this word is used in perk. sect . . in mantel and woodlands case , in plowden , f. . b. and in eatons case cited in foxly's case in the rep. f. . a. finors . finors are those that purifie gold and silver , and part them by fire and water from courser metals ; and therefore in the statute of h. . c. . they are also called parters . fire-bote . fire-bote is necessary wood to burn , which , by the common law , lessee for years or for life may take in his ground , although it be not expressed in his lease ; and although it be a lease by word only , without writing : but if he take more then is needful , he shall be punished in waste . first-fruits . first-fruits ( primitiae ) are the profits of every spiritual living for a year , which were anciently given to the pope ; but by the statute of h. . ● . . are now transferred to the king. fledwite . fledwite is , to be quit from amerciaments , when an outlawed fugitive comes to the kings peace of his own will , or being licensed . flemeswite . flemeswite is , that you may have the cattel or amerciaments of your fugitive man. fletwit . fletwit , or flitwit , is , to be quit from contention and convicts , and that you may have a plea thereof in your court , and the amerciaments ; for flit in english is treason in french. floatsam . floatsam , or flotson , is , when a ship is sunk , or otherwise perished , and the goods float upon the sea , and they are given to the lord admiral by his letters patents . see cok. lib. . fol. . fold , fould-course . fold , fould-course , in latine falda , & faldae , is common for sheep . see shack. co. ent. , . coke . rep. . cro. rep. spooner and day . folkmoot . folkmoot signifies ( according to lambert in his exposition of saxon words ) two kinds of courts ; one now called the county court , the other the sheriffs tourne . and in london it signifies at this day celebrem ex omni civitate conventū . stows survey . footgeld . footgeld is an amerciament for not cutting out the balls of great dogs feet in the forrest , for which see expeditate : and to be quit of footgeld is a priviledge to keep dogs within the forrest unlawed without punishment or controll . cromp. jurisd . fol. . manwood , part . . pag. . forcible entry . forcible entry is a violent actual entry into house or land ; or taking a distress weaponed , whether he offer violence or no. west , part . symb. tit . inditements , sect. . forest , or forrest . forest is a place priviledged by royal authority , or by prescription , for the peaceable abiding and nourishment of the beasts or birds of the forrest , for disport of the king : for which there have been in ancient time certain peculiar officers , laws and orders , part of which appear in the great charter of the forrest . forester . forester is an officer of the forest , sworn to preserve the vert and venison of the forest , to attend upon the wild beasts within his bailywick , to watch and keep them safe by day and by night , to apprehend all offenders there in vert or venison , and to present them at the courts of the forest , to the end they may be punished according to their offences . forfeiture of marriage . forfeiture of marriage was a writ that lay for the lord by knights service against his ward , who refused a convenient marriage offered him by his lord , and married another within age without the assent of his lord. and see for this fitz. n. b. fol. . g. &c. forger of false deeds . forger of false deeds comes of the french word forger , which signifies to frame or fashion a thing , as the smith doth his work upon his anvil . and it is used in our law for the fraudulent making and publishing of false writings to the prejudice of another mans right . fitz. in his f. n. b. f. . b. c. says that a writ of deceit lies against him that thus forges any deed. forjudger . forjudger is a iudgment given in a writ of mesne , brought by a tenant against a mesne lord , who should acquit the tenant of services demanded by the lord above , of whom the tenement is holden , and the mesne will not appear ; then iudgment shall be given , that the mesne lord shall lose his seignory , and that the tenant from thenceforth shall hold of the lord above by such su ●● as the mesne held before , and shall be discharged of the services which he yielded to the mesne , by the statute of westm . . ca. . which is called a forjudger . also if an attorney or other officer in any court be put out and forbidden to use the same , he is said to be forjudged the court. formedon . formedon is a writ that lies where tenant in tail infeoffs a stranger , or is disseised , and dies ; his heir shall have a writ of formedon to recover the land. but there are three manner of formedons . one is in the discender , and that is in the case before said . and if one give land in the taile , and for default of issue the remainder to another in the taile , and that for default of such issue the land shall revert to the donor ; if the first tenant in tail die without issue , he in the remainder shall have a formedon in the remainder : but if the tenant in the tail die without issue , and he in the remainder also die without issue , then the donor or his heirs shall have a formedon in the reverter . forrein . forrein is a word adjectively used , and joyned with divers substantives : as forrein matter triable in another county , pl. cor. or matter done in another county , kitch . fol. . forrein plea is a refusal of the iudge as incompetent , because the matter in hand was not within his precincts , kitch . fol. . & anno h. . cap. . & anno ejusdem cap. . & . forrein answer is such an answer as is not triable in the county where it is made , anno h. cap. . forrein service is such service whereby a mean lord holds over of another without the compass of his own fee , bro. tit . tenures , fol. . num . . & . and kitch . fol. . or else that which a tenant performs either to his own lord , or to the lord above him out of the fee. for of such services bracton . lib. . cap. . num . . speaks thus : also there are certain services which are called forrein , though they be named and express'd in the charter of feoffment , and may therefore be called forrein , because they appertain to our lord the king , and not to the chief lord , unless when he goes in service in person , or that he satisfies our lord the king for the service by some kind of means ; and they are performed at certain times , when occasion and necessity require , and they have divers & sundry names : for sometime they are called forrein , the word taken largely as to the kings service , somtime escuage , somtime service of the king ; and it may therefore be called forrein , because it is done and taken without , or beside service done to the lord paramount . see broke , tenures , . forrein service seems to be knights service , or escuage uncertain , perkins , sect . . forrein attachment is an attachment of the goods of forreiners within any liberty or city , for the satisfaction of any citizen to whom the said forreigner owes money . forrein apposer is an officer in the exchequer , to whom all sheriffs and bailiffs do repair , by him to be apposed of their green wax : and from thence he draws down a charge upon the sheriff or bailiff to the clerk of the pipe. forsechoke . forsechoke seems to signifie as much as forsaken , in our modern language : it is especially used anno edw. . cap. unico , for lands or tenements seised by the lord , for want of services due from his tenant , and so quietly held and possessed beyond the year and day . forestaller . forestaller , is he that buys corn , cattel , or other merchandize whatsoever , by the way as it comes to markets , fairs , or such like places to be sold , to the intent to sell the same again at a more high and dear price , in prejudice of the common-wealth and people , &c. the pain for such as are convict thereof is , for the first time , two months imprisonment , and loss of the value of the thing sold . the second time , imprisonment by the space of half a year , and loss of double value of the goods , &c. the third time , imprisonment during the kings pleasure , and iudgment of the pillory , and to forfeit all his goods and chattels . see the statute ed. . cap. . forestall . forestall is , to be quit of amerciaments and cattels arrested within your land , and the amerciaments thereof coming . founder . founder is he that uses the art of melting or dissolving metals , and making any thing thereof by casting in molds . he seems to have his name from the latine word fundere , and is mentioned in the statute of r. . cap. . fourcher . fourcher is a device used to delay the plaintiff or demandant in a suit against two , who thereto are not to answer till they both appear , and the appearance or essoin of one will excuse the others default at that day ; and they agree , that the one shall be essoined or appear one day , and for lack of the appearance of the other , have day over to appear , and the other party shall have the same day ; and at that day the other will appear or be essoined , and he that appeared or was essoined before will not then appear , because he hoped to have another day by the adjournment of the party who then appeared or was essoined . this is called fourcher , and in some cases the mischief thereby is remedied by the statute of gloucest . cap. . and westm̄ . . cap. . franchise . franchise is a french word , and signifies in our law an immunity or exemption from ordinary iurisdiction ; as for a corporation to hold pleas within themselves to such a value , and the like . see of this in the old nat. brev. fol. . a , b. franchise royal. franchise royal is , where the king grants to one and his heirs that they shall be quit of toll , or such like . free almes . free almes is , where in ancient times lands were given to an abbot and his covent , or to a dean and his chapter , and to their successors , in pure and perpetual almes , without expressing any service certain ; this is frank-almoigne ; and such are bound before god to make oraisons and prayers for the donor and his heirs , and therefore they do no fealty ; and if such as have lands in frank-almoigne perform no prayers nor divine service for the souls of the donors , they shall not be compelled by the donors to do it , but the donors may complain to the ordinary , praying him that such negligence be no more , and the ordinary of right ought to redress it . but if an abbot , &c. holds lands of his lord for certain divine service to be done , as to sing every friday a mass , or do some other thing ; if such divine service be not done , the lord may distrain , and in such case the abbot ought to do fealty to the lord : and therefore it is not said tenure in frank-almoign , but tenure by divine-service ; for none can hold by frank-almoign , if any certain service be expressed . frank bank. frank bank , or free bench , are copihold-lands , which the wife being married a virgin , hath after the decease of her husband for her dower , kitch . f. . bract lib. . tract . . cap. . num . . hath these words ; there is a custom in those parts , that the wives , their husbands being dead , should have frank bank of lands of sockmans , and hold it in name of dower . fitzh . calls this a custome by which in some cities the wife shall have all the lands of her husband for dower , n. b. fol. . see plow . fol. . frank chase . frank chase is a liberty , by which all men having land within this compass are prohibited to cut down the wood , or discover , &c. without the view of the forrester , although it be his own . crom. jur. f. . frank fee. to hold in frank fee , is , to hold in fee-simple lands pleadable at the common law , and not in ancient demesne . frank law. frank law : see crom. just . of peace , f. . where you may find what this is by the contrary : for he that for an offence , as conspiracy , loses his frank law , is said to fall into these mischiefs . first , that he shall never be impanelled upon any iury or assize , or otherwise used in saying any truth : also , if he have any thing to do in the kings court , he shall not approach thither in person , but must appoint his attourney : his lands , goods and chattels are to be seised into the kings hands , and his lands must be estrepped , his trees rooted up , and his body committed to prison . free marriage . free marriage is , when a man seised of land in fee-simple gives it to another man and his wife , who is the daughter sister , or otherwise of kin to the donor in free marriage by virtue of which wards they have an estate in special tail , and shall hold the land of the donor quit of all manner of services , until the fourth degree be past , accounting themselves in the first degree ; except fealty , which they shall do , because it is incident to all tenures , saving free alms . and such gift may be made as well after marriage solemnized , as before . and a man may give lands to his soir in free marriage , as well as to his daughter , by the opinion of fitzh . in his writ of champertie , h. but it appears otherwise in littleton , and in broke , tit . frank-marriage , pla . . and so it was holden clear in grays-inne in lent , an . . eliz. by m. rhodes , then reader there . frank-plege . frank-plege . signifies a pledge or surety for free-men , according to the ancient custom of england , for preservation of the publick peace . see the statute for view of frank-pledge , anno ed. . and see view of frank-pledge . free-hold . free-hold is an estate that a man hath in lands or tenements , or profit to be taken in fee-simple , tail , for term of his own or anothers life , in dower , or by the courtesse of england : and under that there is no free-hold ; for he that hath estate for years , or holds at will , hath no free-hōld , but they are called chatels . and of free-holds there are two sorts ; viz. free-hold in deed , and free-hold in law. free-hold in deed is , when a man hath entred into lands or tenements , and is seised thereof really and actually : as if the father seised of lands or teuements in fee-simple dies , and his son enters into the same as heir to his father , then he hath a free-hold in deed by his entry . free-hold in law is , when lands or tenements are discended to a man , and he may enter into them when he will , but hath not yet made his entry in deed : as in the case aforesaid , if the father , being seised of lands in fee , die seised , and they discend to his son , but the son hath not entred into them in deed , now befo rt his entry he hath a free-hold in law. french-man . french-man was wont to be used for every outlandish-man , bracton , lib. . tract . . cap. . see engleshery . frendless man. frendless man was the old saxon word for him we call an outlaw ; nam forisfecit amcos suos . bracton , lib. . tract . . cap. . fresh force . fresh force ( frisca forcia ) is a force committed in any city or borough , as by disseisin , abatement , intrusion , or deforcement of any lands or tenements within the said city or borough . for the redressing of which wrong , he that hath right may by the vsage of the said city or borough have his remedy without writ , by an assise or bill of fresh force brought within days after the force committed , or title to him accrued . in which action he may make his protestation to sue in the nature of what writ he will. and see for this matter fitzh . nat. bre. f. . c. and old n. b. f. . a. fresh suit. fresh suit is , when a man is robbed , and the party so robbed follows the felon immediately , and takes him with the manner , or therwise , and then brings an appeal against him , and doth convict him of the felony by verdict ; which thing being enquired of for the king , and found , the party robbed shall have restitution of his goods again . also it may be said , that the party made fresh suit , although he take not the thief presently , but that it be half a year or a year after the robbery done before he be taken ; if so be the party robbed do what lies in him , by diligent enquiry and search , to take him ; yea , although he be taken by some other body , yet this shall be said fresh suit. fresh suit is also , when the lord comes to distrain for rent or service , and the owner of the beasts makes rescous , and drives them into anothers ground not holden of the lord , and the lord follows presently and takes them . and so in other like cases . friperer . friperer is a word used in the statute of jac. c. . for a kind of broker . and it seems to be a word taken from the french word fripier , to trick up old things ; and therefore a friperer is one that uses to dress old clothes to sell again . frumgyld . frumgyld is an old saxon word , which signifies the first payment made to the kindred of a slain person , in recompence of his murder , l. l. edmundi , c. ult . fugitives goods . fugitives goods are the proper goods of him that flies upon felony , which , after the flight lawfully found , do belong to the king. coke , vol. . f. . b. g. gable . gable , gablum , in ancient records is an old word that signifies a rent , duty , custom , or service yielded or done to the king , or any other lord see the comment upon littl. fol. . a. gager de deliverance . gager de deliverance is , where one sues a repleven of goods taken , but he hath not the goods delivered , and the other avows , and the plaintiff shews that the defendant is yet possessed of the goods , &c. and prays , that the defendant may gage the deliverance ; then he shall put in surety or pledges for the redeliverance , and a writ shall go forth to the sheriff to redeliver the goods , &c , but if a man claim property , he shall not gage deliverance . and if he say that the beasts are dead in the pound , he shall not gage , &c. also a man shall never gage the deliverance before they are at issue , or demurter in the law , as it is said . gainage . gainage ( wainagium ) seems to come from the french word gaignage , id est , gain or profit ; but in our law it signifies the profit most properly that comes by the tillage of land. and therefore in the statute of mag. chart. c. . it is enacted , that a villain shall be amerced , saving his gainage ; and in west . . c. . saving his gainure ; and in c. . it is enacted , that he that deforces any of the deliverances of his beasts by replevin , shall render unto the plaintiff his double dammages which he hath sustained in his beasts , or in his gainage disturbed , &c. and by the statute of distress of the exchequer made in h. . it is enacted , that no man of religion , or other , shall be distrained by the beasts that gain his land. galli-halpens . galli-halpens were a certain coin prohibited by the stat. an. . h. . c. . gaole . gaole , or gayle , comes of the french word geole , which signifies a cage for birds , but metaphorically is used for a prison . and from thence the keeper of the prison is called a gaoler or gayler . garbe . garbe comes of the french garbe vel gerbe , which signifies a bundle or sheaf . this word is used in the old stat. called charta de foresta , cap. . where herbas in the latine is translated garbe in english . garble . garble , is is to sort and chuse the good from the bad , as the garbling of bow-staves , anno r. . c. . and the garbling of spice is nothing else but to purifie it from the dross with which it is mixed . see of this at large in the statute of jac. c. . gard. gard , or ward , is , when an infant , whose ancestor held by knights service , is in the ward or keeping of the lord of whom those lands were holden . and if the tenant hold of divers lords , divers lands , the lord of whom the land is holden by priority , that is , by the more elder tenure , shall hade the wardship : but if one tenure be as old as the other , then he that first gets the ward of the body shall keep it : but every lord shall have the ward of the land that is holden of him . and if the tenant hold any land of the king in chief , he by his prerogative shall have the ward of the body , and of all the land that is holden of him , and of every other lord. also there are divers writs of ward . one is a writ of right of ward , and that lies where the tenant dies , his heir within age , and a stranger enters into the land , and happens to have the ward of the body of the infant . a writ of ejectment of ward lies , where a man is put out of the ward of the land , without the body of the infant . a writ of ravishment of ward lies , where the body is taken from him only , and not the land. but see the stat. car. . c. . for abolishing the court of wards , &c. gardian . gardian or wardein most properly is he that hath the wardship or keeping of an heir , and of his land holden by knights service , or of one of them , to his own use , during the nonage of the heir ; and within that time hath the bestowing of the body of the heir in marriage at his pleasure , without disparagement . and of wa ●● ens there are two sorts ; namely gardian in right , and gardian in deed. gardian in right is he that by reason of his seigniory is seised of the wardship or keeping of the land and heir , during his nonage . gardian in deed is , where the lord after his seifin , as aforesaid , grants by deed , or without deed , the wardship of the land , or heir , or both , to another , by force of which grant the grantee is in possession : the grantee is called gardian in deed. and this gardian in deed may grant the heir to another also : but that other is not properly called gardian in deed , but grantee of the gardian in right only . but the gardian in socage hath the profit only to the use of the heir , until he accomplish the age of years , and must yield therefore an account to the heir . see more hereof , littleton , lib. . cap. , & . and stamford upon the statute of prerogat . cap. , , & . church-wardens . church-wardens are officers chosen in every parish , to have the care and custody of the church goods ; and they may have an action for the goods of the church , and divers other things they may do for the benefit of the church : and by the statute of eliz. cap. . they are to joyn with the overseers for the making of rates and other provisions for the poor of the parish . gardian of the spiritualties . gardian of the spiritualties , by the general law is the dean and chapter of the diocess , unless there be a custom that the arch-bishop of the province should be the gardein , sede vacante , his office is to hold courts , prove wills , grant administrations , and supply the bishops room . garnishment . garnishment : if an action of detinue of charters be brought against one , and the defendant saith , that the charters were delivered to him by the plaintiff and by another upon certain conditions , and prays . that the other may be warned to plead with the plaintiff , if the conditions be performed or no , and thereupon a writ of scire facias shall go forth against him ; this is called garnishment : and the other , when he comes , shall plead with the plaintiff ; and that is called enterpleader . garranty . garranty is , when one is bound to another who hath land , to warrant the same to him ; which may be two ways : that is , by deed of law ; as if one and his ancestors hath held land of another and his ancestors , time out of mind , by homage , which is called homage auncestrel : or by deed of the party , who grants by deed or fine to the tenant of the land to warrant it to him ; upon which , if the tenant be impleaded by him who ought to warrant or his heirs , the tenant shall bar the demandant by pleading the warranty against him , which is called rebutter ; or if he be impleaded by another in an action wherein he may vouch , he shall vouch him who warranted ; or his heirs , and if the plaintiff recover , the tenant shall recover in value against the voucher . garranty is of three sorts ; that is , garranty lineal , garranty collateral , and garranty that begins by disseisin . warranty lineal , is , where a man seised in fee or in tail , makes a feoffment to another , and binds him and his heirs to warranty , and hath issue a son , and dies , and the warranty disceuds to his son . for if no deed with warranty had been made , then the right of the lands should have discended to the son , as heir to his father , and he shall convey the discent from the father to the son . but if tenant in tail discontinues the tail , and hath issue , and dies , and the vncle of the issue releases to the discontinuee with warranty , &c. and dies without issue ; this is a collateral warranty to issue in tail , for that the warranty discends upon the issue , who may not convey himself to the tail by mean of his vncle. and in every case where a man demands lands in fee-tail by writ of formedon , if any ancestor of the issue in tail makes a warranty , and he that sues a writ of formedon , by possibility of matter that may be done , conveys to him title by force of his gift that made the warranty , &c. that is then a lineal warranty , whereby the issue in tail shall not be barred , except he have assets to him discended in fee-simple . but if he may not by any possibility convey to him title by force of his gift that made the warranty , then that is a collateral warranty , and thereby the issue in tail shall be barred without any assets . and the cause that such a collateral warranty is a bar to the issue in the tail is , for that all warranties , before the statute of gloucester , which discended to those who are heirs to the warrantors , were bars to the same heirs to demand any lands , except the warranties that began by disseisin ; and for that the said statute hath ordained , that the warranty of the father shall be no bar to his son for the lands which come by the heritage of the mother , nor the warranty of the mother shall be no bar to the son for the lands which come by the heritage of the father ; and neither the stat. h. . cap. . nor any other statute , hath ordained any remedy against any other collateral warranty ; therefore such warranty is yet in force , and shall be a bar to the issue in tail , as it was before the statute . and it behoves that every warranty , whereby the heir shall be barred , discend by course of the common law to him who is heir to the warrantor ; else it shall be no bar : for if the tenant in tail of lands in borough english , where the youngest son shall inherit by the custome , discontinues the tail , and hath issue two sons , and the vncle releases to the discontinuee with warranty , and dies , and the younger son brings a formedon ; yet he shall not be barred by such warranty , causa qua supra . and if any man make a deed with warranty , whereby his heir should be barred , and after the warrantor be attaint of felony ; his heir shall not be barred by such warranty , for that such warranty cannot discend upon him , the blood being corrupt . warranty beginning by disfeisin is , if the son purchase lands , and let them to his father for years , and the father by the deed infeoffs a stranger , and binds him and his heirs to warranty , and the father dies , whereby the warranty discends to the son ; yet this warranty shall not bar the son , but the son may well enter notwithstanding , because this warranty began by disseisin , when the father made the feoffment , which was a disseisin to the son . and as it is said of the father , so it may be said of every other ancestor . and the same law is , if the ancestor be tenant by elegit , or by statute-merchant , and make a feoffment with warranty , such warranties shall be no bars , because they begin by disseisin . garranty of charters . garranty of charters , is a writ that lies where any deed is made that comprehends a clause of warranty , that is to say , dedi or concessi , or this word warrantizabo ; and if the tenant be impleaded by a stranger in assise or such action where he may not vouch to warranty , then he shall hate this writ against his feoffor or his heir ; and if the land be recovered against him , he shall recover as much land in value against him that made the warranty . but this writ ought to be sued depending the first writ against him , else he hath lost his advantage . also upon a warranty in the law , as upon homage auncestrel , or upon rent reserved upon a lease for life , or a gift in the tail , a man shall have a writ of warrantia chartae , but not upon escuage . garrantie del jour . garranty del jour . see for that warrantia diei . gavelet . gavelet is a special and ancient kind of cessavit , used in kent , where the custom of gavelkinde continues , whereby the tenant shall forfeit his lands or tenements to the lord of whom they are holden , if he withdraw from his lord his due rents and services , after this manner : if any tenant in gavelkind withhold his rent and services of the tenement he holds of his lord , let the lord seek by the award of his court , from three weeks to three weeks , to find some distress upon the tenement until the fourth court , always with witnesses . and if within that time he can find no distress on that tenement , whereby he may have iustice of his tenant , then at the fourth court let it be awarded , that he take that tenement into his hand in name of a distress , as if it were an ox or cow , and let him keep it a year and a day in his hand without manuring it : within which term , if the tenant come and pay his arrerages , and make reasonable amends for the withholding , then let him have and enjoy his tenement , as his ancestors and he before held it : and if he do not come before the year and day past , then let the lord go to the next county-court with his witnesses of his own court , and pronounce there this process to have farther witnesses ; and by the award of his court ( after the county-court holden ) he shall enter and manure in those lands and tenements as in his own . and if the tenant come afterward , and will re-have his tenements , and hold them as he did before , let him make agreement with the lord , according as it is anciently said , hath he not since any thing given , nor hath he not since any thing payed ? then let him pay v. li. for his were , before he become tenant , or holder again . see hereof h. . fitzh . cessavit . and stat. ed. : of gavelet in london , in the collection of statutes , london . matter much tending to this purpose , that by this word gavelet , the lord shall have the land for the cessing of the tenant . and see westm . . ca. . which gives cessavit . there be some copies which have the first verse thus written ; nisith yelde , and nisith gelde : and others thus ; nighesith yeld , and nighesith geld . but these differ not in signification . other copies have it thus ; nigondsith seld , and nigondsith geld : that is , let him nine times pay , and nine times repay . gavel-kinde . gavel-kinde is a custom annexed and going with lands in kent , called gavel-kind-lands , holden by ancient socage tenure . and it is thought by the skilful in antiquities , to be called gavel-kinde , of give all kinne , that is , to all the kindred in one line , according as it is used among the germans , from whom we english-men , and chiefly of kent , come . or else it is called gavel-kine , of give all kinde , that is , to all the male-children , for kinde in dutch signifies a male-childe . and divers other like conjectures are made touching gavel-kinde , which i omit . the most usual customes are , that the land is dividable between the heirs-male ; and that the heir of the age of fifteen years may give and sell his land ; and shall inherit , although his father be attainted and hanged for felony ; and his wife shall be endowed of half the land whereof her husband died seised ; and the husband shall be tenant by the curtesse of the half , although he have no issue by his wife ; but the estate of the husband and wife ceases by their second marriage . and divers other customes are used in kent of the lands in gavel-kinde , for which see lambert's perambulation of kent . gawgeour . gawgeour is an officer of the king appointed to search all tuns , hogsheads , pipes , barrels and tertians of wine , oyl , honey , butter , and to give them a mark of allowance before they are sold in any place . and because this mark is a circle made with an iron instrument for that purpose , it seems he takes his name from thence . touching this office there have been made many statutes : the first is an. e. . cap. . and the others are , r. . cap. . h. . c. . h. . c. . r. . cap. . and h. . c. . gersuma . gersuma is an obsolete word , for a fine or summe of mony ; it is often found in ancient records . see sir hen. spelmans glossarium . gild. gild , alias geld , has divers significations : as sometimes a tribute ; othertimes an amerciament ; thirdly , a fraternity or company combined together by orders and laws made amongst themselves with the kings licence . cambden cites many antiquities , whereby it appears to signifie a tribute or tax ; as pag. , , , , . crompton , in his jurisdictions , fol. . shews it to be an amerciament , as footgeld ; yet fol. . he says , to be quit of all manner of gelds , is to be discharged of all manner of prestations to be made for gathering of sheaves of corn , young lambs , and wool , to the use of the foresters . also cambden , pag. . dividing suffolk into three parts , calls the first gildable , because tribute is thence gathered . and the statutes anno edw. . stat. . cap. . and anno h. . cap. . use gildable in the same sense ; and so the statute anno h. . cap. . hence lambert in the word contubernalis is perswaded that the common word gild or gild-hall proceeds , being a fraternity or communalty of men gathered in one combination , supporting their common charge by a mutual contribution . and in the reg. orig. fol. . b. there is gildam mercatoriam , which seems to be a certain liberty or priviledge appertaining to merchants , whereby they are enabled to hold certain pleas of land within their own precincts . this word gilds or guilds is so used anno e. . cap. . and anno r. . c. . and guildhalda teutonicorum is used for the fraternity of easterling merchants in london called the stillyard , anno h. . c. . see coke , l. . f. . gisarms . gisarms was a certain weapon , mentioned e. . stat. . c. . fleta writes it sisarmes , l. . cap. . glebe . glebe , are lands of which the rector or vicar are seised in jurae ecclesiae . gors . gors ( gurges ) is a pool or or pit of water to keep fish in , by the grant whereof the soil it self passes ; and a praecipe quod reddat lies of it , as you may see in ed. . . b. and e. . . a. and f. n. b. . h. granage . granage , is a duty in london , viz. the twentieth part of salt imported by an alien , and due to the mayor , dyer . grand cape . grand cape . look for it after in the title petit cape . grand distress . grand distress . see of that before in the title distress . grand serjeanty . grand serjeanty is , where a man holds of the king certain land by the service of carrying his banner or launce , or to lead his host , or to be his carver or butler at his coronation , or the like ; and that is the most honorable service that a tenant may do , and for that it is called grand serjeanty . but petit serjeanty is , when one holds of the king , paying him yearly a bow , a sword , a spear , or such like ; and that is but socage in effect : but a man cannot hold in grand serjeanty or petit serjeanty but of the king. also if a tenant by grand serjeanty dies , his heir , being of full age , shall pay to the king for relief the value of the lands , besides the charges that he pays to the king by grand serjeanty : but he that holds by escuage shall pay for his relief but c. . those that are in the marches of scotland , who hold of the king by cornage , that is , to blow an horn when the scots enter england , are tenants in grand serjeanty . also where a man holds of the king to find a man in his wars within the realm , that is called grand serjeanty , because it is done by a mans body : and if the tenant cannot find a man to do it , he is bound to do it himself . but see the stat. car. . c. . whereby all tenures are now turned into free and common socage . gree. gree comes of the french word ( gre ) good liking ; and it signifies in our law , contentment or satisfaction : as in the statute of r. . c. . to make gree to the parties is to give them contentment or satisfaction for an offence done unto them . green hew . green hew is all one with vert , as appears by manwood in his forest laws , cap. . sect . . and for it see vert. green wax . green wax is a word used in the statutes of e. . c. . and h. . c. . and signifies the estreats of issues , fines and amerciaments in the exchequer , and delivered out to the sheriffs under the seal of the court , to be levied by them in their several counties . grithbreach . grithbreach , that is , the kings peace broken ; because grith in english is pax in latine . gule of august . gule of august is the first day or the calends of august , which in the time of e. . and e. . was called ordinarily the gule of august , as appears by f. n. b. f. . l. and plowdens com. f. . b. it is the very day of s. peter ad vincula ; and the reason why it was called the gule of august , is conceived upon a story recorded by durandus in his rationale divinorum , l. . c. . of a miracle wrought by s. peter's chain upon the daughter of one quirinus a tribune of rome , who by the kissing of that chain was healed of the kings evil in her throat ( gula . ) and see hospinian . de origine festornm , f. . b. gultwit . gultwit is an amends for trespass , according to saxton in his description of england , c. . h. habeas corpus . habeas corpus is a writ which a man indited of any trespass before iustices of the peace , or in a court of any franchise , and upon his apprehenston being laid in prisost for the same , may have out of the kings bench , thereby to remove himself hither at his own costs , and to answer the cause there . f. n. b. f. . h. and the order in this case is , first to procure a certiorari out of the chancery , directed to the said iustices , for the removing of the indictment into the kings bench ; and upon that to procure this writ to the sheriff , to cause his body to be brought at a day , reg. judic . f. . where you may find many cases wherein this writ shall be used . habeas corpora . habeas corpora , is a writ which lies against a iury , or any of them that refuse to come upon the venire facias , for the trial of a cause brought to issue . habendum . habendum is a word of form in a conveyance , to the true understanding whereof it is to be observed , that in every deed or conveyance there are two principal parts , the premisse , and the habendum . the office of the premisses is , to express the name of the grantor , the grantee , and the thing to be granted . the office of the habendum is , to limit the estate , so that the general implication of the estate , which by construction of law passes in the premisses , is by the habendum controlled and qualified : as in a lease to two men , habendum to the one for life , the remainder to the other for life , alters the general implication of the joynt-tenancy in the free-hold , which passes by the premisses , if the habendum were not . see coke , l. . c. . habere facias seisinam . habere facias seisinam is a writ iudicial , that lies where one hath recovered certain lands in the kings court ; then he shall have this writ directed to the sheriff , commanding him to give him seisin of that land , and it shall not be retornable . habere facias visum . habere facias visum is a writ that lies in divers cases , where view is to be taken of the lands or tenements in question . see f. n. b. in indice , verbo view ; & bract. l. . tract . . c. . half-blood . half blood . see demysank . half seal . half seal is a seal used in chancery for the sealing of commissions to delegates upon an appeal in a cause civil or marine , as it appears by the statute made in eliz. c. . halymote . halymote is a court-baron , as appears by manwood in his forest laws , c. . f. . a. and it is called halymote , that is , the meeting of the tenants of one hall or mannor . hambling , or hoxing of dogs . hambling , or hoxing , or hock-sinewing of dogs , are old forrest terms for the lawing of dogs , when the custom was ( as appears in manwood's forrest laws , c. . sect . . ) to cut or gash dogs in the hamms ; but now they use to do it in their feet . of which see expeditate . hand-gun . hand-gun is an engine which is prohibited to be used and carryed about by the statute of h. . c. . and though a dag was invented of late time , and after the making of the said act , and is not known by the name of hand-gun , but a special name ; yet the carrying of a dag is within the said act , and comprehended within the word hand-gun . so whereas cross-bows are forbidden by the said act , thereby stone-bows are also forbidden . see coke , l. . f. , . hangwit . hangwit is , to be quit of a thief or felon hanged without iudgment , or escaped out of your custody . hanper . hanper of the chancery , anno , r. . c. . seems to signifie as fiscus originally does in latine . haque . haque is a little hand-gun of three quarters of a yard long , and it is mentioned in the statutes of h. . c. . and & e. . c. . there is also mention made of an half haque . haquebut . haquebut is a gun mentioned in the statute of & e. . c. . and it is all one with an harquebuze . hariot , or heriot . hariot is of two sorts ; hariot custome , and hariot service . hariot service is often expressed in a mans grant or deed , that he holds by such service to pay hariot at the time of his death . and this hariot is payable after the death of the tenant in fee-simple . hariot custom is , where hariots have been paid time out of mind by custom . and this may be after the death of the tenant for life , &c. but to speak thereof generally : hariot is the best beast ( whether it be horse , ox , or cow ) that the tenant had at the time of his death . and a distress may be either seised or taken for it , whether it be hariot service , or hariot custom , to the lords use of whom the tenant held , by his bayliff or other officers . but of right neither the lord nor his officer should take hariot , before it be presented at the next court holden after the tenant is dead , that such a beast is due for his hariot . haward . haward , or hayward , is an officer appointed in every town to be the common herd of the town : and he is so called , either for that it is one part of his office to keep the hedges of inclosed grounds , so that they be not cropped or broken down ; or because he keeps the grass from hurt and destruction of cattel , so that hay may be made thereof . he is an officer sworn in the lords court : for which oath , see kitch . fol. . hawkers . hawkers is a word used in the statutes h. . cap. . and hen. . cap. . for tinkers that go from place to place through the country , and by colour of the kings letters patents or placards buy and sell brass and pewter , and cozens the kings people both in the weight and in the stuff . hey-bote , or hedge-bote . hey-bote , ou hedge-bote , is necessary stuff to make and mend hedges , which the lessee for years or for life of common right may take upon the ground to him leased , although it be not expressed in his lease , and although it be a lease by word , without writing . heybote also may be taken for necessary stuff to make rakes , forks , and such like instruments , wherewith men use in summer to redde and make hay . and so lessee for years took it , and it was allowed him by his lessor , the rather , as i suppose , for that such instruments are commonly made of slendtr vnder-wood , which by the common law the lessee for years may cut and take as aforesaid . head-borow . head-borow is compounded of two words , heofed , id est , head , and borhe , id est , pledge . so that head-borow signifies the chief of the three pledges in a decennary within a lect , or he that had the government of those that are within his own pledge . and he was called head-borough , or borow-head , or boroughs-holder , or third-borough , or tithing-man , or chief-pledge , or borow-elder , according to the diversity of speech in divers places . and to this day he is now called a constable . head-silver . headsilver . see common fine . heireloome . heireloome , is any piece of houshold-stuff , which , by the custom of some countries , having belonged to a house for certain discents , goes with the house ( after the death of the owner ) unto the heir , and not to the executors . herbage . herbage is the fruit of the earth provided by nature for the bit or mouth of the cattel : but it is commonly used for a liberty to feed ones cattel in anothers mans ground , as in the forest , &c. cromp. juris . fol. . heretico , or haeretico comburendo . haeretico comburendo is a writ that lies against him who is an heretick , that is , who having been once convicted of heresie by the bishop , and having abjured it , afterwards falls into it again , or into some other , and is thereupon committed to the secular power . and brit. lib. . cap. . saith . that by the common law those persons who feloniously burn the corn or houses of others , sorcerers and sorcecesses , sodomitical persons and hereticks , should be burnt and consumed . this writ is taken away by the statute of k. c. . hermitage & hermite . hermite is a religious man , who devotes himself to live solitary in any private place , church , monastery , &c. and his place is called an hermitage . and of it a prohibition lies , nat. br. . g. hidage . hidage is to be quit , if the king shall tax all the land by hides . note , that a hide of land is a whole plough-land . and this kind of taxing by hides was much used in old time , as well for provision of armour , as payments of money ; and that chiefly in king etheldred's days , who in the year of christ , . when the danes landed at sandwich in kent , taxed all his land by hides thus ; that every hides of land should find one ship furnished , and every eight hides should find one iack and one saddle , for the defence of the realm . hoblers . hoblers are mentioned in the statute of e. . stat. . cap. . to be such men as by their tenure are bound to keep a little nag , to give notice of any invasion , or other danger that happens near the sea-side where they dwell . hoghenhine . hoghenhine , is he who comes guest-wise to a house , and there lies the third night , after which time he is accounted one of his family in whose house he lies ; and if he offend the kings peace , his host must be answerable for him . bract. lib. . tract . . cap. . in the laws of king e●ward , set forth by lambert , he is called agenhine , where you may read more of this matter . homage . homage in our books is twofold . viz. homagium ligeum , and that is as much as ligeance , of which bracton speaks , lib. . cap. . fol. . soli regi debetur sine dominio seu servitio . and the other is homagium feudale , which hath his original by tenure . in fitzh . n. b. fol. . there is a writ for respiting this later homage , which is due by reason of the fee or tenure . but homagium ligeum is inherent and inseparable , and cannot be respited . homage , by reason of fee or tenure is defined to be a service which shall be made in this manner : the tenant in fee or fee-tail that holds by homage , shall kneel upon both his knees ungirded , and the lord shall sit , and hold the hands of his tenant between his hands , and the tenant shall say , i become your man from this day forward of life and member , and of earthly honor , and to you shall be faithful and true , and shall bear to you faith for the lands that i claim to hold of you , saving that faith i owe to our lord the king : and then the lord so sitting shall kiss him . how fealty shall be done , look before in fealty . the steward of the lord may take fealty , but not homage . see the statute car. . cap. . homage auncestrel . homage auncestrel is , where a man and his ancestors , time out of mind , held their land of their lord by homage . and if such lord hath received homage , he is bound to acquit the tenant against all other lords above him of every manner service . and if the tenant hath done homage to his lord , and is impleaded , and vouches the lord to warranty ; the lord is bound to warrant him : and if the tenant lose , he shall recover in value against the lord so much of the lands as he had at the time of the voucher , or at any time after . also if a man that holds his land by homage auncestrel alien the land in fee , then the alienee shall do homage to his lord ; but he shall not hold by homage auncestrel , for that the continuance of the tenancy in the blood of the first tenant is discontinued . homagio respectuando . homagio respectuando is a writ directed to the escheatour , commanding him to deliver seisin to the heir of his lands at his full age , although he hath not made his homage . of which see fitz. n. b. f. . a. homesoken . homesoken , or hamesoken , is , to be quit of amerciaments for entring into houses violently and without licence , and contrary to the peace of the king : and that you hold plea of such trespass done in your court , and in your land. homicide , or man-slaughter . homicide , or man-slaughter , is the killing of a man felonioussy , without malice fore-thought it is also defined thus , homicide is the killing of a man by a man. but if it be done by a dog , ox , or other thing , it is not properly called homicide . it is called homicidium , ab homine & cado , quasi hominis caedium . homine capto in withernamium . homine capto in withernamium , is a writ to take him that hath taken any bond-man or woman , and led him or her out of the county , so that he or she cannot be replevied according to law. reg. orig. fol. . a. homine replegiando . homine replegiando is a writ to deliver men out of prison upon bail. in what cases it lies , and in what not , see in fitz. n. b. f. . e. and see here in the title of replevin in the end . see replevin . honour . honour , besides the general signification , is used specially for the most noble sort of lordships , whereof other inferiour lordships or mannors depend by performance of customes and services , some or other , to those that are lords of them . and it seems there are no honours but those which originally appertained to the king ; yet they may afterward be given in fee to noblemen . the manner of creating these honors , may in part be collected out of the statutes of anno hen. . chapter . where hampton court is made an honour ; and anno ejusd . cap. , & . whereby amptil and grafton are likewise made honours ; and anno ejusd . cap. . whereby the king hath power given him by his letters patents to erect four several honours , westminster , kingston upon hull , s. osithes in essex , and dodington in barkshire . hornegeld . hornegeld is , to the quit of certain custome exacted by tillage through all the land , of whatsoever horn'd beast . hors de son fee. hors de son fee , is an exception to avoid an action for rent issuing out of certain land , by him who pretends to be the lord , or for some customes or services ; for if he can justifie that the land is without the compass of his fee , the action falls . broke hoc tit. , . and institut . . b. hospitallers . hospitallers ( hospitularii ) an order of knights first founded at jerusalem , and called the joannites or knights of st. john of jerusalem ; and they were called hospitallers , for that they built an hospital at jerusalem for the entertainment of all such as from any part of the world came to visit the holy places , and did guard and protect such pilgrims in their iourneys . the institution of their order was first allowed by pope gelasius the second , about the year . and they had many priviledges granted them , as immunities from payment of tithes , &c. and for these they are often mentioned in our books . you shall find their priviledges reserved to them in magna charta , cap . and you shall see the right of the kings subjects vindicated from the vsurpation of their iurisdiction by the statute of westm . . cap. . their chief abode is now in the island of melita , commonly called malta , given them by the emperor charles the fifth : and for that they are now called knights of malta . all the lands and goods of these knights here in england were put in the disposition of the king by the stat. of h. . cap. . hosteler . hosteler is an inholder . coke entr. . hotchpot . hotchpot , is a blending or mixing together , and a partition of lands given in frank-marriage , with other lands in fee-simple discended . for example , a man seised of thirty acres of land in fee hath issue two daughters , and gives with one of his daughters , to a man that marries her , ten acres of the same land in frank-marriage , and dies seised of the other twenty acres . now if she that is thus married will have any part of the twenty acres whereof her father died seised , she must put her lands given in frank-marriage in hotchpot , that is , she must refuse to take the sole profits of the land given in frank-marriage , and suffer the land to be commixt and mingled together with the other land whereof her father died seised , so that an equal division may be made of the whole between her and her sister . and thus for her x acres she shall have xv ; else her sister will have the xx acres of which their father died seised . housebote . housebote is necessary timber that the lessee for years or for life , of common right , may take upon the ground , to repair the houses upon the same ground to him leased , although it be not exprest in the lease , and though it be a lease by word , without deed. but if he take more then is needful , he may be punisht by an action of waste . hue and cry. hue and cry , is a pursuit of one having committed felony by the high-way : for if the party robbed , or any in the company of one that was murthered or robbed , comes to the constable of the next town , and wills him to raise hue and cry , or to make pursuit after the offendor , describing the party , and shewing , as near as he can , which way he is gone ; the constable ought forthwith to call upon the parish for aid in seeking the felon ; and if he be not found there , then to give warning to the next constable , and he to the next to him , until the offendor be apprehended , or at least until he be so pursued to the sea-side . of this see bract. lib. . tract . . cap. . smith de repub . angl. lib. . cap. . and the statute of winchester , made anno e. . and the statute of e. . cap. . and an. el. cap. . huers . huers . see conders . hundred . hundreds were divided by king alfred , after he had divided the whole realm into certain parts or sections , which of the saxon word scyran , signifying to cut , he termed shires , or ( as we yet spake ) shares and portious . these shires be also dividid into smaller parts ; whereof some were called lathes , of the word gelathian , which is to assemble together : others tithings , because there were in each of them to the number of ten persons , whereof each one was surety and pledge for others good abearing : others hundreds , because they contained iurisdiction over one hundred men or pledges , dwelling peradventure in two , or three , or more parishes , boroughs , or towns , lying and adjoyning nevertheless somewhat near together , in which he appointed administration of iustice to be exercised severally among them of the same hundred , and not that one should run out disorderly into anothers hundred , lathe , or tithing , wherein he dwells not . these hundreds continue to this day in force , although not altogether to the same purpose whereunto at first they were appointed , yet still to very needful , both in time of peace for good order of government divers ways , and in war for certainty of levying men ; as also for the more ready collection of payments granted in parliament to the kings of this realm . hundred-lagh . hundred-lagh signifies the hundred-court , from which all the officers of the kings forrest were freed by the charter of canutus , cap. . hundredum . hundredum is , to be quit of money or customs to be paid to governors and hundredors . husfastene . husfastene ( quasi domi fixus ) is he that holds house and land. bract. lib. . tract . . c. . hustings . hustings ( hustingum ) is a court of common-pleas held before the major and aldermen of london , and it is the highest court they have , for error or attaint lies there of a iudgment or saise verdict in the sheriffs court , as it appears by fitzh . n. b. h. &c. and the statute of h. . cap. . and other cities and towns have had a court of the same name , as winchester , lincoln , york , and sheppy . so called from the saxon hus , domus , and thing , causa ; quasi , domus causarum . i. idemptitate , or identitate nominis . idemptiatis nominis , is a writ that lies where a writ of debt , covenant , or account , or such other writ is brought against a man , and another that hath the same name with the defendant , is taken for him ; then he shall have this writ , by which the sheriff shall make inquiry before the iustice assigned in the same county , if he be the same person or not ; and if he be not sound to be the party , then he shall go without day in peace . ideot . ideot is he that is a natural fool from his birth , and knows not how to count twenty pence , or name his father or mother , nor tell his own age , or such like easie and common matters , so that it appears he hath no manner of vnderstanding , reason , or government of himself . but if he can read , or learn to read by instruction and information of others , or can measure an ell of cloth , or name the days of the week , or beget a child , or such like , whereby it may appear he hath some light of reason ; such a one is no ideot naturally . jeofaile . jeofaile is , when the parties to any suit in pleading have proceeded so far that they have joyned issue , which shall be tried , or is tried by a iury or enquest ; and this pleading or issue is so badly pleaded or joyned that it will be error if they proceed : then some of the said parties may by their councel shew it to the court , as well after verdict given and before iudgment , as before the iury is charged . and the councel shall say , this enquest ye ought not to take . and if it be after verdict , then he may say , to judgment you ought not to go . and because such niceties occassioned many delays in suits , divers statutes are made to redress them , as well in the time of king h. . an . . c. . as of queen eliz. whereof we may say as the civilians , that although constantine the emperor commāded the forms of the law to be cut off , yet the daily use of pleading doth seem again to recal them , or rather , some of them increase as the heads of hydra . see also now a new statute of jeofailes , made in jac. c. . jetsam . jetsam is , when a ship is in danger to be cast away , and to disburthen the ship , the mariners cast the goods into the sea : and although afterward the ship perish , none of those goods called jetsam , floatsam , or lagan , are called wreck , as long as they remain in or upon the sea ; but if any of them are driven to land by the sea , there they shall be reputed wreck , and pass by the grant of wreck . coke , l. . f. . jettezoons . jettezoons , this is mentioned in policies of insurance , and signifies goods thrown into the sea in a great storm . unlawful assembly . unlawful assembly is , where people assemble themselves together to do some unlawful thing against the peace , although they execute not their purpose in deed . imparlance . imparlance . see emparlance . impeachment of waste . impeachment of waste ( impetitio vasti ) is as much as to say as a demand made or to be made of recompence for waste done by a tenant that hath but a particular estate for life or years . and therefore he that hath such a lease without impeachment of waste , hath by that a property or interest given him in the houses and trees , and may make waste in them , without being impeached for it , that is , without being questioned or demanded any recompence for the waste done . see coke , l. . bowles case , f. . b. implements . implements comes either from the french word ( employer , to imploy ) or from the latine ( implere , to fill up ) and is used for things of necessary use in any trade or mystery , which are imployed in the practice of the said trade , or without which the work cannot be accomplished . also for furniture with which the house is filled . and in that sense you shall find the word often in wills and conveyances of moveables . impost . impost is a french word that signifies tribute , but with us it is taken for the tax that is paid the king for any merchandise brought into any haven from places beyond the seas . and it is used in the statute of eliz. c. . as a word of the same signification with custom which merchants pay . imprisonment . imprisonment is the restraint of a mans liberty , whether it be in the open field , or in the steeks or cage in the streets , or in a man 's own house , as well as in the common geal . and in all these places the party so restrained is said to be a prisoner , so long as he hath not his liberty freely to go at all times to all places whether he will , without bail or mainprise . incumbent . incumbent comes of the latine ( incumbere ) and signifies him that is presented , admitted and instituted to any church or benefice with cure ; who is therefore called the incumbent of that church , because he doth bend all his study to the discharge of the cure there . indicavit . indicavit is a writ or prohibition that lies for the patron of a church , whose clerk is defendant in court-christian in an action for tithes , commenced by another clerk , and extending to the fourth part of the church , or of its tithes ; in which case the suit belongs to the kings court , by westm . . c. . wherefore the defendants patron ( being like to be prejudiced in his church and advowson , if the plaintiff obtain in the court-christian ) has this means to remove it to the kings court. reg. orig . fol. . and britton , c. . this writ is not returnable ; but if they cease not their suit , he shall have an attachment . inditement . inditement . see enditement . indorsement . indorsement is that which is written upon the back of a deed , as the condition of an obligation is said to be indorsed , because it is commonly written on the back of the obligation . induction . induction is a lay act made by prescept of the ordinary , by which , actual possession of the church is given to the rector or vicar after his presentation and institution to it . infangtheef . infangtheef is a priviledge or liberty granted to lords of certain mannors , to judge any thief taken within their fee. information . information for the king is that which for a common person is called a declaration ; and is not always done directly by the king or his attorney , but rather by some other man , who sues as well for the king as for himself , upon the breach of some penal law or statute , wherein a penalty is given to the party that will sue for the same ; but no action of debt to recover it , therefore it must be had by information . ingrosser . ingrosser comes of the french word grosier , that is , one that sells by whole-sale . but in our law an ingrosser is one that buys corn , grain , butter , cheese , fish , or other dead victuals , with an intent to sell the same again . and so he is defined in the stat. of e. . c. . made against such ingrossing . inheritance . inheritance . see enheritance . inhibition . inhibition is a writ to inhibit a iudge to proceed farther in the cause depending before him . and there is another writ , where after the kings presentment to a benefice , he presents another , and inhibiteth the bishop to give induction to the first presentee . plo. com. . see f. n. b. f. . where he puts prohibition and inhibition together . inhibition is most commonly a writ issuing forth of an higher court-cheistian to a lower and inferiour , upon an appeal , anno h. . c. . and prohibition out of the kings court of record at westminster to a court-christian , or to an inferiour temporal court. injunction . injunction is an interlocutory decree out of the chancery , sometimes to give possession to the plaintiff for defect of apparance in the defendant ; sometimes to the ordinary courts of the king , and sometimes to the court-christian , to stay proceeding in a cause upon suggestiou made , that if the rigor of the law take place , it is against equity and conscience in that case , see west , part . . tit . proceedings in chancery , sect . . inlagary . inlagary or inlagation , is a restitution of one outlawed to the kings protection , or to the benefit & condition of a subject . inlaugh . inlaugh signifies him that is sub lege , in some frank-pledge , not out-lawed ; of whom see bract. l. . tract . . c. . inmates . inmates are those persons of one family that are suffered to come and dwell in one cottage together with another family , by which the poor of the parish will be increased . and therefore by the statute of eliz. c. . there is a penalty of ten shillings a month set upon every one that shall receive or continue such an iumate . inquisition . inquisition . see enquest . inrolment . inrolment is the registring , recording , or entring of any act or deed in the chancery , or elsewhere , as of a recognizance , fine , statute , or deed indented by the statute of h. . c. . by which a freehold shall pass . instant . instant ( in latine , instans ) is defined by the logicians , a thing not dividable in time , which is not any time , nor part of time , to which yet the parts of time are conjoyned , and much considered in the law : and though it cannot be actually divided , yet in consideration and conceit it may be divided and applied to several purposes , as if they were several times ; whereof see in plowdens commentaries in the case between fulmerston and stuard , where the statute of h. . ( which enacted , that if an abbot within a year before the statute had letten lands to one , who at the time of making that lease had the same land to farm for a term of years , then not expired that the lessee should have that land only for twenty one years ) is expounded . and there it is debated , that when the termor takes the second lease , he surrenders his former term ; and so at the same instant of taking the second lease , the former term is expired . and in the case between petit and hales , he who kills himself , commits not felony till he be dead , and when dead , he is not in being , so as to be termed a felon , but at the instant is in the law so adjudged . and there are many other cases in law , where the instant time , that is not dividable in nature ; in the consideration of the mind and understanding of the sages of the law is divided ; upon which arise many arguments of great use and profound learning . institution . institution , is a faculty made by the ordinary , by which a vicar or rector is approved to be inducted to a rectory or vicarage . interdiction . interdiction has the same signification in the common as in the canon law , where it is thus defined , interdictio est censura ecclesiastica prohibens administrationem divinorum . and so it is used , h. . cap. . intrusion . intrusion is a writ that lies against him that enters after the death of tenant in dower , or other tenant for life , and holds out him in the reversion or remainder ; for which see fitz. n. b. fol. . e. and every entry upon the possession of the king is called an intrusion ; as where the heir of the kings tenant enters after office , and before livery , this is called an intrusion upon the king , as appears in stanf. prerog . fol. . and many other books . intrusion . intrusion . see entrusion . inventary . an inventary is a catalogue or recital in writing of all the goods and chattels of one that is dead , with the valuation of them by four several persons , which every executor and administrator ought to exhibit to the ordinary at the time appointed . jointenans . jointenants are , where two men come to any lands and tenements by one joynt title ; as if a man give lands to two men , and to their heirs . tenants in common are , where two have lands by several titles , or by feoffment to two , to have and tohold the one half to one and his heirs , aud the other half to another and his heirs : in all these cases none of them knows his several . if there be two or three ioyntenants , and one hath issue and dies , then he or those ioyntenants that overlive shall have the whole by survivorship . if two iointenants by agreement make partition between them by deed , then they are several tenants : but if one ioyntenant grant that which belongs to him to a strang ●● , then the other ioyntenantand the stranger are tenants in common . and though two tenants in common be seised throughly and of the whole , and none knows his several ; yet if one die , the other shall not make the whole by survivorship , but the heir of him that dies shall have the half . and so if there be three ioyntenants , and one of them makes a feoffment of his part to another , and the feoffee dies ; then his heir shall have the third part , and the other two are ioyntenants as they were , because they two are seised by one joynt title . also if lands be given to the baron and his wife , and the husband aliens and dies , the wife shall recover the whole : but if they were ioyntenants before the coverture , then he shall recover but the half . if land be given to the husband and his wife , and a third person , if the third person grant that which belongs to him , the one half passes by this grant ; for that the baron and his wife are but one person in law , and in this case they have right but to half . also if two ioyntenants are of lands in a town that is borough-english , where land is devisable , and one by his testament devises that which belongs to him to a stranger , and dies ; this devise is void , and the other shall have the whole by sutviver , for that the devise may not take effect till after the death of the devisor ; and immediately after the death of the devisor , the right comes to the other ioyntenant by surviver , who claims nothing by the devisor , but in his own right by surviver . but otherwise it is of parceners seised of lands devisable , causa qua supra . journies accounts . journies accounts ( dietae computatae ) is a term in the law which is understood thus : if a writ be abated without the default of the plaintiff or demandant , he may purchase a new writ , which if it be purchased by journies accounts , ( that is , within as little time as he possibly can after the abatement of the first writ ) then this second writ shall be as a continuance of the first , and so shall ouste the tenant or defendant of his voucher , plea of non-tenure , ioyntenancy fully administred , &c. or any other plea which arises upon matter hapning after the date of the first writ . and fifteen days have been held a convenient time for the purchase of the new writ . see for this writ by journies accounts , spencers case , coke , lib. . fol. . b. joynture . joynture is an estate and assurance made to a woman in consideration of marriage , for term of her life , or otherwise ; as is mentioned in the statute of h. . cap. . whether it be before or after marriage . and if it be after , then she may at her liberty after the death of her husband refuse to take or have the lands so assured for her ioynture , and demand her dower at the common law : but if it be made before marriage , then she may not refuse such ioynture , nor have dower according to the common law , unless that when she brings her writ of dower , the defendant pleads such a plea as will not bar her of her dower ; as if he say in bar , that her husband was not seised of such estate whereof she might be endowed , or any such plea , and doth not shew that she hath a ioynture made , &c. and therefore demands iudgment of that action , or any such like plea , &c. and this was the opinion of master brograve at his reading in grays-inn in summer , an. . eliz. upon a branch of the statute made h. . cap. . concerning joyntures and dowers . and of those things whereof a woman may be endowed , she may have ioynture ; as of mines , vesturam terrae , woods , towns , is ● es , meadows , and such like . also of an advowson , reversion depending upon an estate for life , wind-mill , high chamber , rectory , and such other ; and they are called tenements . also of a villain , for he is an hereditament . and of all these profit may come to the woman . but of those things whereof no profit will come , but rather a charge , a ioynture cannot be made . see coke , lib. . fol. . vernons case . jurisdiction . jurisdiction is a dignity which a man hath by a power to do iustice in causes of complaint made before him . juris utrum . juris utrum is a writ that lies for the succeeding incumbent of a benefice , to recover the lands or tenements belonging to the church , which were aliened by his predecessor . and see of this fitz. n. b. fol. . r. and see after in the title utrum . juror . juror is one of those or men which are sworn to deliver a truth upon such evidence as shall be given them touching the matter in question : of which see fitz. nat. b. fol. . d. and the statute and car. . cap. for returning able and sufficient jurors . justice seat . justice seat is the highest court that is held in a forrest , and it is always held before the lord chief iustice ●● eyre of the forrest , upon m●●ning ● ays before . and 〈◊〉 the iudgments are always given , and the fines see for offences that were presented at the courts of attachments , and the offenders indicted at the swainmotes . see concerning this court manwoods forrest laws , cap ● . fol. . b. justices in eire . justices in eire . see eire . justicies . justicies is a writ directed to the sheriff for the dispatch of justice in some special cases in his county-court of which he cannot by his ordinary power hold plea there . and of this you may see precedents in fitzh . n. b. fol. . c. in account , and fol. . b. in annuity , and fol. . g. in debt , and many others . and it is called a justicies , because it is a commission to the sheriff to do a man right ; and it requires no return or certificate of what he hath done . k. keelage . keelage , in latine killagium , is a custom paid at hartlepool in durham for every ship coming into that port. r of parl. e. . kiddle . kiddle or kidel , is a dam or wear in a river . all kidels shall from henceforth be utterly put down in the thames and medway , and throughout all england , except upon the sea-coast . mag. char. cap. . kings silver . kings silver is the money which is due to the king in the court of common pleas , for a license there granted to any man to pass a fine . coke , lib. . fol. , & . kintal . kintal is a weight , commonly of one hundred pounds , more or less , according to the vsage of sundry nations . mr. plowden in the case of reniger and fogassa makes mention of this word . knights service . knights service was a tenure by which several lands in this nation were held of the king. but it is abolished by statute car. . cap. . l. laches . laches or lasches is an old french word signifying slacknesse or negligence , as it appears in lit. sect . . & . where laches of entry is nothing else but a neglect in the infant to enter . so that i think it may be an old english word . and when we say , there is laches of entry , it is as much as to say , there l ● ok is of entry , or there is lack of entry . yet i find that ( lascher ) in french is to loyter , and ( lasche ) signifies one that is idle or lazy : and therefore it may also come from the french. for etymoligies are divers , and many times ad placitum . lagan . lagan is such a parcel of goods as the mariners in a danger of shipwreck cast out of the ship ; and because they know they are heavy , and will sink , they fasten to them a boigh or cork , that so they may find them , and have them again . if the ship be drowned , or otherwise perish , these goods are called lagan or ligan , a ligando : and so long as they continue upon the sea , they belong to the admiral ; but if they are cast upon the land , they are then called a wreck , and belong to him that hath the wreck , as it appears in coke , l. . f. . lageman . lageman est homo legalis seu legitimus , such as we call good men of the jury . the word is found in dooms-day-book . land-cheap . land-cheap is a payment of d. in the purchase-mony for every mark thereof , for all the lands within the borough of maldon in essex , by prescription , which see h. , . car. . roll . in b. r. lapse . lapse ( lapsus ) is the omission of a patron to present to a church of his patronage within six months after an avoidance by death , or taking of another benefice without qualification , or notice to him given of the resignation or deprivation of the present incumbent ; by which neglect title is given to the ordinary to collate to the said church . larcenie . larceny is a wrongful taking away another mans goods , but not from his person , with a mind to steal them . and theft is in two sorts ; the one so called simply , and the other petit or little theft . the first is where the thing stolen exceeds the value of d. and this is felony . the other ( called little or petit theft ) is where the thing stolen doth not exceed the value of d. and that is not felony . last . last signifies a certain wright or burthen ; as a last of herring is ten thousand , anno e. . stat. . cap. . a last of hides is twelve dozen , anno jae . c. . lastage . lastage is , to be quit of a certain custom exacted in fairs and markets , for carrying of things where a man will. latitat . latitat is a writ by which all men in personal actions are originally called in the kings bench to answer . and it is called latitat , because it is supposed by the writ that the defendant cannot be found in the county of middlesex , as it appears by the return of the sheriff of that county , but that he lurks in another county : and therefore to the sheriff of that county is this writ directed to apprehend him . law. law . see ley. law-day . law-day signifies a leet or sheriffs tourn , as it appears by the statute of e. . c. . where the sheriffs tourn is so called , and h. . f. . b. and many other books , where a leet is so called . see smiths commonwealth , l. . c. . lawing of dogs . lawing of dogs . see expeditate . lawless man. lawless man is the who is extra legem , an outlaw . bract. l. . tract . . c. . num . . leases . leases are grants or demises , by one that hath any estate in any hereditaments , of those hereditaments to another for the lesser time . and they are in divers manners ; viz. for term of life , for years , for anothers life , and at will. also a lease of land is as good without deed , as with deed. but in a lease for term of life it behoves to give livery and seisin upon the land , or else nothing shall pass by the grant , because they are called free-holds . also a lease of a common or rent may not be good without deed. but of a parsonage that hath glebe it is good without deed , for that the glebe of the church , which is the principal , may well enough pass without deed ; and so the dismes and offerings , which are as accessary to the church . but dismes and offerings by themselves may not be let without deed , as it is said . leet . leet is a court derived out of the sheriffs tourne , and inquires of all offences under the degree of high treason that are committed against the crown and dignity of the king. but those offences which are to be punished with loss of life or member , are only inquirable there , and to be certified over to the iustices of assise . see stat. . e. . c. . legacy . legacy ( legatum ) is a term of the civil law , and it is that which we in our law call a devise , viz. lands or goods given unto any man by the will or testament of another . see more , tit. devise before . lessor and lessee . lessor is he that leases lands or tenements to another for term of life , years , or at will : and he to whom the lease is made is called lessee . levant and couchant . levant and couchant is said , when the beasts or cattel of a stranger are come into another mans ground , and there have remained a certain good space of time . levari facias . levari facias is a writ directed to the sheriff for the levying of a sum of mony upon the lands , tenements and chattels of him that hath forfeited a recognizance . see f. n. b. fol. . d. law. law is , when an action of debt is brought against one upon some secret agreement or contract had between the parties without especialty shewed , or other matter of records ; as in an action of detinue for some goods or chattels lent or left with the defendant ; then the defendant may wage his law , if he will , that is , swear upon a book , and certain persons with him , that he detains not the goods , or ows nothing to the plaintiff , in manner and form as he hath declared and it is allowed only in cases of secrecy , where the plaintiff cannot prove the surmise of his suit by any deed or open act : for the defendant might discharge it privily between them without any acquittance or publick act . and therefore in an action of debt upon a lease for years , or upon arrearages of accompt before auditors assigned , a man shall not wage his law. but when one shall wage his law , he shall bring with him vj , viij , or xij of his neighbors , as the court shall assign him , to swear with him , much like the oath which they make who are used in the civil law , to purge others of any crime laid against them , who are called compurgators . note , that the offer to make the oath is called wager of law ; and when it is accomplished , then it is called the doing of your law. and if the sheriff in any action return , that he hath summoned the defendant to appear in court at any day to answer the plaintiff , at which day he makes default ; process shall be awarded against him , to come and save , or excuse his default ; which is as much to say , as to excuse the delay , or otherwise to lose the thing demanded : and the defendant comes , and swears he was not summoned , which is called waging of law ; then he ought to do it at the day assigned , with xij others . and in doing of his law he ought upon his oath to affirm directly the contrary of that which is imputed to him : but the others shall onely say , they think he saith the truth . libel . libel ( libellus ) is a term of the civil law , signifying the original declaration in any action ; and so it is used in the statutes of h. . cap. . and e. . cap. . and an infamous libel signifies properly in our law a scandalous report of any man unlawfully published in writing : of which see cok. lib. . fol. . a. liberate . liberate is a warrant issuing out of the chancery to the treasurer , chamberlains , and barons of the exchequer , or clerk of the hamper , &c. for the payment of any yearly pension or other sum granted under the great seal , regist . orig . . sometimes to the sheriffs , &c. fitzh . n. b. fol. . for the delivery of lands or goods taken upon forfeiture of a recognizance , f. n. b. , . cok. lib. . fulwoods case , fol. , , . also to a gaoler from the justices , for the delivery of a prisoner that hath put in bail for his appearance . there is also another writ made out of the petry-bag office in chancery , upon a statute staple , after an extent thereupon retorned ; by which the sheriff retorns he has delivered the land extended to the cognizee ; which being filed , he may then ( & not before ) bring his action of ejectment to recover possession of the lands extended . libertate probanda . libertate probanda . look for that in the title nativo habendo . librata terrae . librata terrae contains four ox-gangs , and every oxgang acres of land. skene de verb. signif . verbo bovata terrae . lien . lien is a word of two significations , personal lien , and come being , covenant or contract : and real lien , as judgment , statute , recognizance , or an original against an heir which oblige and affect the land. ligeance . ligeance is a true and faithful obedience of the subject due to his soveraign ; and this ligeance , which is an incident inseparable to every subject , is in four manners : the first is natural , the second acquired , the third local , and the fourth legal . of all which you may read much excellent learning in cok. lib. . calvins case . limitation . limitation is an assignment of a space or time , within which he that will sue for any lands or hereditaments ought to prove , that he or his ancestor was seised of the thing demanded , or otherwise he shall not maintain his suit or action ; which assignments are made by divers statutes : as the statute of merton . cap. . westm . . cap. . hen. . cap. . &c. livery of seisin . livery of seisin is a ceremony used in conveyance of lands and tenements , where an estate in fee-simple , fee-tail , or a free-hold shall pass . and it is a testimonial of the willing departing of him who makes the livery from the thing whereof livery is made . and the receiving of the livery is a willing acceptance by the other party of all that whereof the other hath devested himself . and it was invented as an open and notorious thing , by means whereof the common people might have knowledge of the passing or alteration of estates from man to man , that thereby they might be the better able to try in whom the right and possession of lands and tenements were , if they should be impanelled in juries , or otherwise have to do concerning the same . the common manner of delivery of seisin is thus : if it be in the open field , where is no building or house , then one that can read takes the writing in his hand , if the estate pass by deed , and declares to the standers by the cause of their meeting there together , &c. and then openly reads the deed , or declares the effect thereof ; and after that is sealed , the party who is to depart from the ground takes the deed in his hands , with a clod of the earth , and a twig or bough , if any be there , which he delivers to the other party in the name of possession or seisin , according to the form and effect of the deed there read or declared . but if there be a dwelling-house or building upon the land , then this is done at the door of the same , none being left at that time within the house ; and the party delivers all aforesaid , with the ring of the door , in the name of seisin or possession ; and he that receives the livery enters in first alone , and shuts the door , and presently opens it again , and lets them in , &c. if it be a house whereto is no land or ground , the livery is made and possession taken by the delivery of the ring of the door and deed only . and where it is without deed , either of lands or tenements , there the party declares by word of mouth , before witness , the estate that he means to depart with , and then delivers seisin or possession in manner aforesaid ; and so the land or tenement doth pass as well as by deed , and that by force of the livery of seisin . it was agreed in gray's inne by master snagge , at his reading there in summer , anno . that if a feoffor deliver the deed in view of the land , in name of seisin , that is good , because he hath a possession in himself . but otherwise it is of an attorney , for he must go to the land , and take possession himself , before he can give possession to another , according to the words of his warrant , &c. and where livery of seisin is by view , if the feoffee do not enter after , &c. nothi ● g passes , for he ought to enter in deed. lollards . lollards were dogmatists in religion in the times of e. . and h. . and in those times were reputed hereticks ; as appears by the statutes in . r. . cap. . and h. . cap. . which statutes you shall find repealed in e. . cap. . and el. cap. . they had their name ( as some think ) from one gualter lolhard a german , who lived about the year . and was the first author of this sect. lord in grosse . lord in grosse is he who is lord without a mannor , as the king in respect of his crown , fitz. nat. brev. fol. . a man makes a gift in tail of all his land , to hold of him , and dies ; his heir hath nothing but a seignory in gross . lotherwit . lotherwit is , that you may take amends of him who doth deffle your bondwoman without your licence . lushburgh . lushburgh was a counterfeit coin in the time of e. . made beyond seas , in likeness of english moneys , and brought in to deceive the king and his subjects . and therefore it is declared to be treason by the stat. of e. . stat. . cap. . for any man to bring it into the realm , knowing it to be false . m. maegbote . maegbote was a a recompence for a kinsman slain . maihem or maime . maihem or maime is , where by the wrongful act of another any member is hurt or taken away , whereby the party is made unperfect to fight : as if a bone be taken out of the head , or broken in any other part of the body , or foot , or hand , or finger , or joynt of a foot ; or any member be cut ; or by some wound the sinews be made to shrink , or the fingers made crooked ; or if an eye be put out , fore-teeth broken , or any other thing hurt in a mans body ; by means whereof he is made the less able to defend himself , or offend his enemy . but the cutting off of an ear or nose , or breaking of the hinder-teeth , or such like , is no maihem , because it is rather a deformity of body then diminishing of strength ; and that is commonly tryed by the justices beholding the party . and if the justices stand in doubt whether the hurt be a maihem or not , they use and will of their own discretion take the help and opinion of some skilful chirurgeon , to consider thereof , before they determine upon the cause . mainpernable . mainpernable : that may be mainprised or delivered to mainpernors . see the statute of westm . . cap. . what persons may be mainpernable , what not . mainprise . mainprise is , when a man is arrested by capias , the iudge may deliver his body to certain men to keep , and to bring before him at a certain day ; and these are called mainpernors : and if the party appear not at the day assigned , the mainpernors shall be amerced . maintenance . maintenance is , where any man gives or delivers to another , that is plaintif or defendant in any action , any sum of money or other thing to maintain his plea , or takes great pains for him when he hath nothing therewith to do ; then the party grieved shall have against him a writ called a writ of maintenance . manbote . manbote signifies a pecuniary compensation for the killing a man. lambert . mandamus . mandamus is a writ that goes to the escheator for the finding of an dffice after the death of one that died the kings tenant ; and it is all one with the writ of diem clausit extremum , but that the diem clausit extremum goes out within the year after the death , and the mandamus goes not out till after the year , and in case where there was never any diem clausit extremum sued out , or was not sued out with effect . fitz. n. b. . b. c. see the stat. car. . cap. . also there is another sort of mandamus granted upon motion in the kings bench , one to the bishop to admit an executor to prove a will , or to grant administration . stiles reports , . another to command corporations to restore aldermen , and others , to offices out of which they are unjustly put out . look report , james bag 's case . mannor . mannor is compounded of divers things ; as of a house , arable land , pasture , meadow , wood , rent , advowson , court-baron , and such like , which make a mannor . and this ought to be by long continuance of time , the contrary whereof mans memory cannot discern : for at this day a mannor cannot be made , because a court-baron cannot now be made , and a mannor cannot be without a court-baron , and suiters and freeholders , two at the least ; for if all the free-holds except one escheat to the lord , or if he purchase all except one , there his mannor is gon , for that it cannot be a mannor without a court-baron , ( as is aforesaid ; ) and a court-baron cannot be holden but before suiters , and not before one suiter : and therefore where but one free-hold or freeholder is , there cannot be a mannor properly , although in common speech it may be so called . mansion . mansion ( mansio ) is most commonly taken for the chief messuage or habitation of the lord of a mannor , the mannor-house where he doth most reside , his capital messuage , as it is called ; of which the wife by the statute of mag. chart cap. . shall have her quarentine . munucaptio . manucaptio is a writ that lies for him who is arrested or indicted of felony , and offers sufficient sureties for his appearance ; but the sheriff , or he whom it concerns , will not suffer him to be bailed : then he shall have his writ , to command them to suffer him to be bailed . see of this fitz. n. b. fol. . g. manumission . manumission is the making a bond-man free , and may be in two sorts ; the one is a manumission expressed , the other a manumission implied . manumission expressed is , where the lord makes a deed to his villain to infranchise him by this word ( manumittere ) which is as much to say , as to let one go out of another mans hands or power . the manner of manumitting or infranchising in old time , most usually was thus : the lord ( in presence of his neighbors ) took the bondman by the head , saying , i will that this man be free ; and therewith shoved him forward out of his hand , and by this he was free . manumission implied without this word ( manumitere ) is , when the lord makes an obligation to his villain to pay him money at a certain day , or sues him where he might enter without suit , or grants him an annuity , or leases lands to him by deed for years , or life , and in divers like cases the villain thereby is made free . marchers . marchers are the noble-men dwelling on the marches of wales or scotland , who in ● imes past had their private laws , as if they had been kings ; and therefore in the statutes of h. . c. . h. . cap. . h. . cap. . and e. . cap. . they are called lord marchers . marches . marches are the bounds and limits betwixt us and wales or scotland , so called either from the german word ( march ) which signifies a frontire or border ; or else from the french word ( marque ) that is , a sign or token of distinction , these being the notorious distinctions of two divers countries . of these you shall read in the statutes of h. . cap. . e. . cap. . h. . cap. . and others . marshal . marshal is a general word for many officers in england : as the lord or earl marshal , of whom mention is made in the statutes of r. . cap. . and h. . c. . & . the marshal of the kings house , of whom you may read f. n. b. f. . b. and in the statute of artic. sup . chart. c. . e. . c. . h. . c. . h . c. . and others . there are also other inferior marshals mentioned in our books : as the marshal of the kings bench in the statute of e. . c. . and f. n. b. f. . l. who hath the custody of all the prisoners of that court ; and the marshal of the exchequer , mentioned in the statute of h. . stat. . called the statute of the exchequer . marshal is a french word , and is as much to say as master of the horse : for it seems to come of the german ( marschalk ) which hath that signification . marshalsea . marshalsea is the court or seat of the marshal of the kings house , of which you may read at large in coke l. . f. . b. & l. . f. . b. it is also taken for the prison belonging to the court of the kings bench , of which the marshal of that court is the keeper : for so are the forms of the bills there , that a complains of b in the custody of the marshal of the marshalsea of our lord the king , &c. maugre . maugre is a word compound of two french words ( mal ) and ( gree ; ) so that it is as much as to say , with an unwilling mind , or in despight of another . and so it is used in littleton , sect . . where it is said , that the husband and wife shall be remitted maugre the husband , that is , in despight or against the will of the husband . maximes . maximes are the foundations of the law , and the conclusions of reason , and are causes efficient , and certain universal propositions so sure and perfect , that they may not be at any time impeached or impugned , but ought always to be observed , and holden as strong principles and authorities of themselves , although they cannot be proved by force of argument or demonstrations logical , but are known by induction by the way of sense and memory . for example , it is a maxime , that if a man have issue two sons by divers women , and the one purchases lands in fee , and dies without issue , the other shall never be his heir , &c. and it is another maxime , that lands shall discend from the father to the son , but not from the son to the father , for that is an ascension , &c. and divers such there are , whereof see doctor and student . maynour . maynour is , when a thief hath stollen , and is followed with hue and cry , and taken , having that found about him which he stole , that is called maynour . and so we commonly use to say , when we find one doing of an unlawful act , that we took him with the maynour or manner . meane . meane . see mesne . mease . mease or messuage seems to come from the french word maison or mansion , which is no other but a place of abiding or habitation . and yet messuage in our law contains more then the very place of habitation : for a house and a messuage differ , in that a house cannot be intended other then the matter of building ; but a messuage shall be said all the mansion-place , and the curtelage shall be taken as parcel of the messuage , h. . keloway , fol. . a. and by the name of a messuage the garden and curtelage shall pass , plowden , fol. . a. measondue . measondue is an appellation of divers hospitals in this kingdom , which are so named , anno & p. & m. cap. . & car. . c. . and it comes of the french ( maison de dieu ) and is no more but gods house in english . medietas linguae . medietas linguae is an inquest impannelled upon any cause , whereof the one half is of denizens , the other strangers ; and it is used in pleas between parties , whereof one is a denizen and the other a stranger . and this manner of trial was first given by the statute of e. . stat. . cap. . and by the statute of e. . c. . it was granted in cases where the king himself was party with an alien . melius inquirendo . melius inquirendo is a writ directed to the escheator for a second inquiry to be made , when there is any doubt made of partiality in an inquiry made upon a diem clausit extremum after the death of the kings tenant . see f. n. b. f. . c. merchenlage . merchenlage is one of those three laws out of which william the conqueror framed our common laws with a mixture of the laws of normandy . and it was the law of the mercians , when they had the government of the third part of this realm . mesnalty . mesnalty is the right of the mesne , as the mesnalty is extinct . old nat. br. f. . mesne . mesne is , where the owner of lands or tenements holds of one by certain services , and he holds them of another by like or other services ; then he who holds the lands is called tenant paravail , and he of whom it is held is called mesne , and he of whom the mesue holds is called chief lord , or lord paramount . and in this case , if the lord above distrains the tenant for the service of the mesne , who ought to aequit him to the chief lord , then the tenant shall have a writ of mesne , so called , against the mesne ; and if he acquit not the tenant , then the mesne shall lose the service of the tenant , and shall be forejudged of his seigniory , and the tenant shall be immediate tenant to the chief lord , and shall do him the same service and suits as the mesne did . messuage . messuage . see mease . metropolitane . metropolitane , signifies the arch-bishops , of whom centerbury is stiled , totius angliae primas & metropol and york the like title , without the word totius . miscreant . miscreant is one who is perverted to heresie , or a faise religion . bro. presentation , . mise . mise is a french word , and signifies as much as expensum in latine ; and it is so ordinarily used in the entries of iudgments in personal actions : when the plaintiff recovers , the entry is , that recuperet damna sua to such a value , and pro misis & custagis , for costs and charges , so much . there is also another acception or signification of this word in the law , where it is taken for the issue to be tried by battail of grand assise . and so it is used in littleton , sect . . . and divers others , where joyning of the mise upon the meer right is putting it in issue , who hath the best or clearest right . misericordia . misericordia is used in the common law for an amerciament or mulct set upon any for an offence ; as where the plaintiff or defendant in any action are amerced , the entry is always , ideo in misericordia , &c. and it is therefore called misericordia , as fitzh . says , n. b. fol. . h. for that it should be but small and less then the fault , and saving his contenement , as the statute of mag. charta , cap. . speaks . and therefore if a man be outragiously amerced in a court not of record , as in a court-baron , &c. there is a writ called moderata misericordia to be directed to the lord or his baily , commanding them that they take moderate amerciaments according to the quantity of the fault . and of that see fitzh . n. b. fol. . a. and moderata misericordia after . misnomer . misnomer is the mistake of a name , or the using of one name for another . see broke , tit . misnomer . misprision . misprision is , when one knows that another hath committed treason or felony , and will not discover him to the king , or his council , or to any magistrate , but conceals the same . divers other offences are called misprision : as when a chaplain had fixed an old seal of a patent to a new patent of non-residence , this was held to be misprision of treason only , and no counterfeiting of the kings seal . so it is holden in h. . bro. tit . treason . in fine : but h. . f. . a. it is adjudged contrary ; and stamf. pl. cor . fol. . b. cites it treason ; and so it is holden at this day . and if a man know money to be counterfeit , and bring the same from out of ireland hither , and utter it in payment , yet this is but misprision of treason , and no treason : and so it is in divers like cases . in all cases of misprision of treason , the party offendor shall forfeit his goods for ever , and the profits of his lands for his life , and his body to prison at the kings pleasure . and for misprision of felony or trespass , the offendor shall be committed to prison , until he have found sureties or pledges for his fine , which shall be assessed by the discretion of the iustices before whom he was convict . and note , that in every treason or felony is included misprision ; and where any man hath committed treason or felony , the king may cause him to be indicted and arraigned of misprision only , if he will. see more hereof , stamf. lib. . cap. . mittimus . mittimus is a writ by which records are transferred from one court to another : sometimes immediately , as it appears in the statute of . r. . cap. . as out of the kings bench into the exchequer ; and sometimes by a certiorari into the chancery , and from thence by a mittimus into another court , as you may see in h. . dyer , fol. . a , b. & h. . dyer , fol. . a , b. this word is used also for the precept that is directed by a iustice of peace to a goaler for the receiving and safe keeping of a felon , or other offendor , committed by the said iustice to the goal . moderata misericordia . moderata misericordia is a writ that lies where a man is amerced in court-baton or county more then he ought to be ; then he shall have this writ directed to the sheriff , if it be in the county , or to the bayliff , if it be in court-baron , commanding them that they amerce him not but with regard to the quantity of the trespass : and if they obey not this writ , then shall go forth against them a sicut alias , and causam nobis significes , and after that an attachment . modus decimandi . modus decimandi is , mony or other thing of value given annually in lie ● of tithes : the tryal of which appertains to the common law , and not to any court-christian . ridley's view del civil law , . in which he says , there was one modus decimandi pro omnibus rebus per totum regnum . monstrans de droit . monstrans de droit is a suit in chancery for the subject to be restored to lands and tenements which he shews to be his right , but are by office found to be in the possession of another that is lately dead , by which office the king is intitled to a chattel , free-hold , or inheritance in the said lands . and this monstrans de droit is give by the statutes of e. . cap. . and e. . cap. . see coke , lib. . fol. . b. in the case of the wardens and commonalty of sadlers . shewing of deeds or records . shewing of deeds or records is thus : an action of debt is brought against a upon an obligation by b , or by executors , &c. after the plaintiff hath declared , he ought to shew his obligation , and the executor the testament , to the court. and so it is of records . and the diversity between shewing of deeds or records , and hearing of deeds or records , is this : he that pleads the deed or record , or declares upon it , ought to shew the same ; and the other against whom such deed or record is pleaded or declared , and is thereby to be charged , may demand hearing of the same deed or record , which his adversary brings or pleads against him . monstraverunt . monstraverunt is a writ that lies for the tenants in ancient demesne , and is directed to the lord , him commanding not to distain his tenant to do other service then he ought : and they may have this writ directed to the sheriff , that he suffer not the lord to distrain the said tenant to do other service . if the tenants cannot be in quiet , they may have an attachment against the lord , to appear before the iustices ; and all the names of the tenants shall be put in the writ though but one of them be grieved . also if any land in ancient demesne be in variance between the tenants , then the tenant so grieved shall have against the other a writ which is called of right close , after the custome of the mannor ; and that shall be alway brought in the lords court , and thereupon he shall declare in the nature of what writ he will , as his case lies : and this writ shall not be removed , but for a great cause , or non-power of the court. also if the lord in another place out of ancient demesne distrain his tenant , to do other service then he ought , he shall have a writ of right , called ne injuste vexes ; and it is a writ of right patent , which shall be tried by battel or grand assise . mortdancester . mortdancester . see before in the title cosinage . mortgage , or morgage . mortgage , or morgage is , when a man makes a feoffment to another on such condition , that if the feoffor pay the feoffee at a certain day li. of money , then the feoffor may re-enter , &c. in this case the feoffee is called tenant in morgage . and as a man may make a feoffment in fee in morgage , so he may make a gift in tail , or a lease for life or years in morgage . and it seems the cause why it is called morgage is , for that it stands it doubt whether the feoffoe will pay the mony at the day appointed or not ; and if he fail , then the land which he laid in gage upon condition of payment of the money is gone from him for ever , and so dead to him upon condition : but if he pay the mony , then is the gage dead as to the tenant , that is , the feoffee . and for this cause it is called in latine , mortuum vadium , as littleton saith ; or rather mortuum vas , as i think . also if a feoffment be made in morgage upon condition , that if the feoffor pay such a sum at such a day , &c. and the feoffor dies before the day , yet if the heir of the feoffor pay the sum at the same day to the feoffee , and the feoffee refuses it , the heir of the feoffor may enter . but in such case if there be no day of payment expressed , then such tender of the heir is void , because when the feoffor dies , the time of tender is past ; otherwise the heirs of the feoffor shall have time of tender for ever , which would be inconvenient , that one shall have a fee-simple to him and his heirs defeasible always at the pleasure and will of others . but in the first case the time of tender was not expired by the death of the feoffor . mortmain . mortmain : where lands are given to a house of religion , or to other company incorporate by the kings grant , the land is come into mortmain , that is in english ; a dead hand ; and then the king or the lord of whom the land is holden may enter , as appears by the statute de religiosis . and if one make a feoffment upon trust to certain persons to the use of a house of religion , or to the use of any guild or fraternity corporate , it shall be said mortmain , and he shall incur the same penalty , as appears by the statute , anno r. . mortuary . mortuary is that beast or other chattel moveable , which , after the death of the owner , by the custom of some places , became due to the parson , vicar , or priest of the parish , in lieu or satisfaction of tithes or offerings forgot , or not well and truly paid by him that is dead . see now the statute of h. . cap. . which ● imits the course and order of the payment of these mortuaries , or of money for them . mulier . mulier is a word used in our law , but how aptly i cannot say : for , according to the proper signification , mulier is a defiled woman , as it is used in ulpianus thus ; si ego me virginem emere putarem , cum esset mulier , emptio non valebat . whereby you may see , mulier is a woman that hath had the company of a man. but to leave the right signification , mulier is taken in our law for one that is lawfully begotten and born ; and is always contra-distinguished with bastard , only to shew a difference between them ; as thus : a man hath a son of a woman before marriage ; that is , a bastard , and vnlawful : and after he marries the mother of the bastard , and they have another son ; this second son is called mulier , that is to say , lawful , and shall be heir to his father ; but the other cannot be heir to any man , because it is not known nor certain in the iudgment of the law who was his father , and for that cause is said to be , no mans son , or the son of the people , and so without father . according to these old verses ; to whom the people father is , to him is father none and all : to whom the people father is , well fatherless we may him call . and always you shall find this addition to them , [ bastard eldest , and mulier youngest ] when they are compared together . muniments . muniments are evidences or writings concerning a mans possession or inheritance , whereby he is able to defend the estate which he hath . and they are fo called from the latin word munio , which signisies to defend or fortifie . and h. . fol. . b. wangford says , that this word muniment includes all manner of evidences , viz. charters , releases , and others . murage . murage is a toll or tribute , levied for the repairing or building of publick walls . see fitz. nat. brev. fol. . d. and the statute of e. . cap. . murder . murder is a wilful killing a man upon malice forethought , and seems to come of the saxon word mordren , which so signifies . and mordridus is the murderer even until this day among them in saxony , from whence we have most of our words , as hath been often said . or it may be derived of mort and dire , as mors dira . see stanf. pleas of the crown , lib. . muster . muster comes of the french word monstrer , that is , to shew ; for to muster , is nothing but to shew men and their arms and to in ● ol them in a book , as appears by the statute of h. . cap. . n. naam . naam is the attaching or taking of the moveable goods of another man : and is either lawful , or unlawful . lawful naam is a reasonable distress according to the value of the thing for which the distress is made . see mo ● e of this in horn's mirror of justices , lib. . nativo habendo . nativo habendo is a writ that lies where the villain or nief of the lord is gone from him ; then the lord shall have this writ directed to the sheriff , to cause the lord to have his villain or nief , with all his goods . in this writ more villians or niefs may not be demanded then two ; but as many villains or niefs as will may jointly bring a writ de libertate probanda . and if a villain or nief bring his writ de libertate probanda before the lord bring this writ , then the villain plaintiff shall be in peace till the coming of the iustices , or else his writ shall not help him . also if a villain have tarried in ancient demesne one year and a day without claim of the lord , then he cannot seise him in the said franchise . naturalization . naturalization . see denizen . ne admittas . ne admittas is a writ directed to the bishop at the suit of one who is patron of any church , and he doubts that the bishop will collate one his clerk , or admit another clerk presented by another man to the same benefice : then he that doubts it shall have this writ , to forbid the sheriff to collate or admit any to that church . negative pregnant . negative pregnant is , when an action , information , or such like , is brought against one , and the defendant pleads in bar of the action or otherwise a negative plea , which is not so special an answer to the action , but that it includes also an affirmative . as for example ; if a writ of entrie en casu proviso be brought by him in the reversion of an alienation by the tenant for life , supposing that he hath aliened in fee , ( which is a forfeiture of his estate ) and the tenant to the writ saith , he hath not alienated in fee ; this is a negative , wherein is included an affirmative ; for though it be true that he hath not aliened in fee , yet it may be he hath made an estate in tail , ( which is also a forfeiture ) and then the entry of him in the reversion is lawful , &c. also in a quare impedit , the king makes title to present to a prebend , for that the temporalties of the bishoprick were in his hands by the death of w. late bishop , &c. the defendant saith that it was not void , the temporalties being in the kings hand by the death of w. this is a negative pregnant ; for it may be in the kings hands otherwise then by the death of w. and it suffices the king if it be in his hands by any means , &c. so is it where an information was brought in the exchequer against j. s. for that he bought wool of j. n. between shearing-time and the assūmption such a year . the defendant saith he did not buy any of j. n. as it is alledged , &c. this is called a negative pregnant ; for if he bought it of any other , yet he is culpable for the buying . neif , or nief . nief is a woman that is bound , or a villain woman : but if she marry a freeman , she is thereby made free , because she and her husband are but one person in law , and she ought to be of the same nature and condition in law to all intents as her husband is ; but her husband is free to all intents without any condition in law , or otherwise ; and so by consequence the wife ought to be , and is free according to the nature of her free husband . and then if she were once free , and clearly discharged of bondage to all intents , she cannot be nief after without special act done by her , as divorce , or confession in court of record , and that is in savor of liberty . and therefore a free woman shall not be bound by taking of a villain to her husband ; but their issue shall be villains as their father was : which is contrary to the civil law , for there it is said , the birth follows the belly . bondage or villainage had beginning amongst the hebrews , and its original of chanaan the son of cham , who , because he had mocked his father noe to scorn , lying dissolutely when he was drunk , was punished in his son chanaan with penalty of bondage . ne. injuste vexes . ne injuste vexes . look in the title monstraverunt . next friend . next friend . see prochein amy. nihil dicit . nihil dicit is , when an action is brought against a man , and the defendant appears , the plaintiff declares , and the defendant will not answer , or pleads to the action , and doth not maintain his plea , but makes default ; now upon this default he shall be condemned , because he saith nothing . nisi prius . nisi prius is a writ judicial , and lies where an enquest is empanelled and returned before the iustices of the bench ; then the plaintiff or defendant may have this writ directed to the sheriff , commanding him to cause the enquest to come before the iustices in the same county at their coming , and that for the ease of the enquest . nomination . nomination is , where one may in right of his mannor or otherwise , nominate and appoint a worthy clerk or man to a parsonage , vicarage , or such like spiritual promotion . 〈◊〉 note , that this nomination ought to be another then the ordinary , which other shall present him to the ordinary . non-ability . non-ability is , where an action is brought against one , and the defendant says , that the plaintiff is disable to sue an action , and demands iudgment if he shall be answered . there are six causes of non-ability in the plaintiff : as if he be an outlaw , or an alien born , ( but that disability is in actions real and mixt only , and not in actions personal , except he be an alien enemy ) or condemned in praemunire , or professed into an abby , priory , or friety , or excommunicate , or a villain , aud sues his lord. but this last is no plea for another that is not lord to the villain . see more hereof , littl. l. . c. . non-age . non-age is all that time of a mans age under years in some cases , and in others , as marriage . see broke tit. age. non-claim . non-claim is the omission or neglect of him that ought to challenge his right within a time limitted , by which neglect he is either barred of his right , as at this day upon non claim within five years after a fine and right to him accrued by the statute of h. . c. . or of his entry by a discent for want of claim within five years after the disseisin made , by the statute of h . cap. . non omittas propter libertatem . non omittas propter libertatem is a writ that lies where the sheriff returns upon a writ to him directed , that he hath sent to the bailiff of such a franchise which hath return of writs , and he hath not served the writ ; then the plaintiff shall have this writ directed to the sheriff , that he himself enter into the franchise , and execute the kings writ . also the sheriff shall warn the bayliff that he be before the iustices at the day contained in the writ ; and if he come not and excuse himself , then all the writs judicial which shall pass out of the kings court during the same plea shall be writs de non omittas , &c. and the sheriff shall make execution of them depending that plea. non-suit . non-suit is the renouncing of a suit by the plaintiff or defendant , when the matter is in probability to proceed , after the tenant or defendant hath appeared , &c. and see the statute of h. . c. . in what cases a man cannot be non-suit ; and h . cap. . and eliz. c. . and jac. c. . where he that is non-suit shall pay costs to the defendant . non sum informatus . non sum informatus is a formal answer made by an attorny , who is commanded by the court to say something in defence of his client , by which he is deemed to leave his client undefended , and so iudgement passes for the other party . novel assignment . novel assignment is , where a man brings trespass for breaking his close : and the defendant justifies in a place where no trespass was done , then the plaintiff assigns the close where it was ; to which the defendant may plead , not guilty , or justifie by title . and there are other replications in battery , and other trespasses ; as if the defendant in battery justifies by a writ : the plaintiff replies , that after the retorn of it , the plaintiff in that suit discharged the plaintiff out of prison , and that the defendant after that imprisoned him , now the defendant must answer to that replication . bare or naked contract . bare contract , or naked promise , is where a man bargains or sells lands or goods , or promises to give one money , or a horse , or to build a house , or do such a thing at such a day , and there is no recompence appointed to him for the doing thereof ; as if one say to another , i sell or give to you all my lands or goods , and there is nothing appointed , assigned , or agreed upon what the other shall give or pay for it , so that there is not one thing for another : this is a naked contract , and void in law , and for not performance thereof no action lies , for , ex nudo pacto non oritur actio . nuper obiit . nuper obiit is a writ , and it lies where one hath many heirs , that is , many daughters , or many sons , if it be in gavelkind in kent , and dies seised , and one heir enters into all the land ; then the others whom he holds out shall have this writ against the coheir that is in . but a writ of ● ationabili parte lies in such ca ● e where the ancestor was once seised , and died not seised of the possession , but in revertion . nusance . nusance is , where any man raises any wall , or stops any water , or doth any thing upon his own ground to the unlawful hurt or annoyance of his neighbor ; he that is grieved may have thereof an assise of nusance : and if he that makes the nusance aliens the land to another , then this writ shall be brought against them both , as it appears by the stat. of westm . . c. . it may be also by stopping lights in an house , or causing water to run over house or lands , for remedy whereof , an action upon the case or assise lyeth . o. oblations . oblations are what things soever are offered to god and his church by pious and faithful christians . occupant . occupant , is when a man makes a lease to another , for the term of the life of a third person : the lessee dies , he who first enters shall hold the land as occupant during the life of the third person ; to prevent which such leases are now made to the lessee his heirs nnd assigns , cro. . co. . r. . odio & atia . odio & atia is an old writ mentioned in the statute of westm . . made in e. . cap. . and it was directed to the sheriff , to inquire whether a man committed to prison upon suspicion of murther were committed upon just cause of suspicion , or for malice only . and if upon an inquisition it were found that he were not guilty , then there came another writ to the sheriff to bail him . but now that course is taken away by the statute of e. . cap. . as it appears in stamford's pl. of the crown , fol. . g. aud see coke , lib. . fol. . a. b. ordael . ordael is as much as to say as not guilty , and was an ancient manner of trial in criminal causes : for when the defendant , being arraigned , pleaded not guilty , he might chuse whether he would put himself upon god and the country , which is upon the verdict of twelve men , as they are at this day , or upon god onely , and therefore it was called the judgment of god , presuming that god would deliver the innocent ; and that was , if he were of free estate , by fire , that is to say , to go bare-footed over nine plow-shares fire-hot : and if he escaped unhurt , he should be acquitted , and if not , then he should be condemned . and if the party were of servile condition , then he should be tried by water , which was in divers manners : for which see lambert , in the word ordalium . but now this trial is prohibited by parliament . see coke , lib. . fol. . b. ordelfe . ordelfe is , where one claims to have the ore that is sound in his soil or ground . ordinary . ordinary is a term of the civil law , and there signifies any iudge that hath authority to take conusance of causes in his own right , and not by deputation . but in the common law it is properly taken for the bishop of the diocess , who is the true ordinary to certifie excommunications , lawful marriages , and such ecclesiastical and spiritual acts within his diocess , to the iudges of the common law ; for he is the party to whom the court ought to write upon such occasions . and yet the word ordinary is usually taken in the common law and statutes for every commissary or official of the bishop or other iudge ecclesiastical that hath iudicial authority within his iurisdictio ● , as appears in coke l. . hensloe's c. fol. . b. and the statute of westm . . cap. . & e. . cap. . and many others . orfgild . orfgild signifies a payment or restoring of cattel , from the sax. orf. pecus , and guild solut ● o , redditio . ouster le maine . ouster le maine is a writ directed to the escheator , to deliver seisin or possession out of the kings hands unto the party that sues the writ , for that the lands seised are not holden of the king , or for that he ought not to have the wardship of them , or for that the kings title is determined , &c. it is also the iudgement given in a monstrans de droit , or upon a traverse or petition : for when it appears upon the matter discussed that the king hath no right or title to the thing that he seised , then iudgment shall be given that the kings hand be amoved ; and thereupon an amoveas manum shall be awarded to the escheator ; which is as much as if iudgment were given that the party should have his lands again . and see for this stamf. prerog . cap. . outfangtheef . outfangtheef is , that thieves or felons belonging to your land or fee , but taken out of it , shall be brought back to your court , and there judged . outlary . outlary . see utlary . owelty . owelty is , when there is lord , mesne , and tenant , and the tenant holds of the mesne by the same service that the mesne holds over of the lord above him : as if the tenant holds of the mesne by homage , fealty , and xx s. rent , and the mesne holds over of the lord above by homage , fealty , and xx s. rent also ; this is called owelty of services . hearing of records and deeds , &c. hearing of records and deeds is , where an action of debt is brought against a man upon an obligation , and the defendant appears , and then prays that he may hear the obligation wherewith the plaintiff charges him . so it is when executors bring an action of debt , and the defendant demands to hear the testament ; upon this demand it shall be read unto him . but if it be in another term , or after the defendant hath imparled , then he shall not hear it . and so as is said of deeds , is to be understood of records that are alledged against him . but in the kings bench the defendant may at any time before plea , and the plaintiff have oyer of deed and record . see the title monstrans de fait . oyer and terminer . oyer and terminer is a writ called in latine , de audiendo & terminando , and it lies where any great or sudden insurrection is made , or any other sudden trespass , which requires hasty reformation ; then the king shall direct a commission to certain iustices to hear and to determine the same . note , that the iustices of assise have also one commission of oyer and terminer directed to them , and divers other inhabitants within the shires whereunto their circuit extends , whereof each of the iustices of assise are of the quorum , for the hearing and determining of divers offences which may happen in their circuit , which without this commission they could not do . see fitzh . n. b. fol. . b. p. paine fort & dure . paine fort & dure is an especial punishment for such as , being arraigned for felony , refuse to put themselves upon the common trial of god and the country , and thereby are mute , or as mute in law. see this at large in stamford pl. cor. fol. . palace court. palace-court , is a court of record , erect by king james by his letters patents , and held at southwark , and is a court of common law. see marshalsea . pannage . pannage . see paunage . pannel . pannel comes of the french word panne , that is , a skin , & signifies in our common law a schedule or roll containing the names of the iurors which the sheriff hath returned to pass upon any trial. and therefore the empannelling of the iury is nothing but the entring of their names into the sheriffs roll. pape , or pope . pape ( papa ) is a name that signifies father , and anciently was applyed to other clergy-men in the greek church ; but by usage is particularly appropriated in the latine church to the bishop of rome : a name very frequent in our ancient year-books , especially in the times of those kings , who , too much abandoning their imperial authority , and abasing themselves beneath their estate , suffered an alien , an outhlandish bishop that dwelt miles off , to take from them the disposition of many spiritual preferments , sometimes by lapse , sometimes by provision , or otherwise . for redress whereof divers statutes were made while the kingdom was of the roman communion , but his whole poer was not taken away till towards the latter end of henry the eighths reign , paramount . paramount is compounded of two french words , ( par and monter ; ) and it signifies in our law the highest lord of the fee. for the better understanding of this , see f. n. b. f. . m. in his writ of mesne . paraphernalia . paraphernalia , in greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 praeter , & 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dos . they are goods which a wife challengeth above her dower . cro. lord hastings against douglas . paravaile . paravaile is also compounded of two french words , ( par , and availer ; ) and signifies in our law the lowest tenant of the fee , who is tenant to one that helds over of another . see for the use of this word , f. n. b. in his writ of mesne , f. . m. parceners . parceners are according to the course of the common law , and according to custom . parceners according to the common law are , where one seised of an estate of inheritance of tenements hath no issue but daughters , and dies , and the tenements descend to the daughters ; then they are called parceners , and are but as one heir . the same law is , if he have not any issue , and that his sisters should be his heirs . but if a man hath but one daughter , she is not called parcener , but the daughter and heir . and if there are no daughters nor sisters , the land shall discend to the aunts , and they are called parceners . when lands discend to divers parceners , they may make partition between themselves by agreement ; but if any of them will not make partition , then the others shall have a writ de partitione facienda directed to the sheriff , who shall make partition between them by the oath of xij . lawful men of the bailywick . also partition by agreement may be made by the law , as well by word without deed , as by deed. and if they are of full age , the partition shall remain for ever , and shall never be defeated . but if the lands be to them in tail , though they are concluded during their lives , yet the issue of him who hath the lesser part in value may disagree from the partition ; and enter and occupy in common with the other part . and if the husbands of the parceners make partition , when the husband dies the wife may disagree from the partition . also if the parcener who is within age makes partition , when she comes to full age she may disagree . but she must take good heed when she comes to her full age , that she take not all the profits to her own use of the lands which were to her allotted ; for then she agrees to the partition : and the age shall alway be intended the age of one and twenty years . if there be divers parceners that have made partition between them , and one of their parts is recovered by lawful title ; then she shall compel the other to make a new partition . parceners according to custom are , where a man is seised of lands in gavelkind , as in kent , and other places franchised , and hath issue divers sons , and dies ; then the sons are parceners by custom . parco fracto . parco fracto is a writ that lies against him that breaks any pound , and takes out the beasts which are there lawfully impounded . see of this f. n. b. . e. park . park is a place in which by prescription or by the kings grant , a subject preservs his game of beasts ferae naturae . see stat. w. . e. . cap. . parliament . parliament , see the lord cook 's th institutes , and mr. cowels interpreter , title parliament . parson imparsonee . parson imparsonee is he that is in possession of a church appropriate or presentative ; for so it is used in both cases in dyer , f. . b. and f. . b. parties . parties to a fine or deed are those which are named in a deed or fine as parties to it ; as those that levy the fine , and they to whom the fine is levied . and they that make a deed of feoffment , and they to whom it is made , are called parties to the deed : and so in many other like cases . note , that if an iudenture be made between two as parties thereto in the beginning , and in the deed one of them grants or lets a thing to another who is not named in the beginning , he is not party to the deed , nor shall take any thing thereby . partition . partition is a dividing of lands descended by the common law , or by custome among co-heirs or parceners , where there are two at least , whether they be sons , daughters , sisters , aunts , or otherwise of kin to the ancestor from whom the land descended to them . and this partition is made four ways for the most part ; whereof three are at pleasure and by agreement among them , the fourth is by compulsion . one partition by agreement is , when they themselves divide the land equally into so many parts as there are of them coparceners , and each to chuse one share or part , the eldest first , and so the one after the other , as they be of age ; except that the eldest by consent made the partition , then the choice belongs to the next , and so the eldest last , according as it is said , who makes the partition , the other must have the choice . another partition by agreement is , when they chuse certain of their friends to make division for them . the third partition by agreement is , by drawing lots , thus : first , to divide the land into so many parts as there are parceners ; then to write every part severally in a little scroll , or piece of paper , or parchment , and put the same scroll up close into a hat , or cap , or other such like thing ; and then each parcener , one after another as they are in age , to draw one piece or scroll wherein is written a part of the land which by this drawing is now severally alloted to them in fee-simple . the fourth partition , which is by compulsion , is , when one or some of the coparceners would have partition , and other some will not agree thereto ; then they that so would have partition may bring a writ de partitione facienda against the others that would not make partition , by virtue whereof they shall be compelled to part , &c. in kent , where the lands are of gavelkind-nature , they call at this day their partition shifting , even the same word that the saxons used , namely shiftan , which signifies to make partition between coheirs , and to assign to each of them their portion . in latin it is called herciscere . partition also may be made by ioyntenants or tenants in common by their assent , by deed between them , or by writ , by the statutes of h. . cap. . and h. . cap. . pasport . pasport is a word mentioned in the statute of e. . cap. . and signifies a licence made by any that hath authority , for the safe passage of any man from one place to another . patron . patron is he that hath the advowson of a parsonage , vicarage , free-chappel , or such like spiritual promotion , belonging to his manor , or otherwise in gross , and thereby may or ought to give the same benefice , or present thereto , when and as often as it becomes void . and this being patron , or patronage , had beginning for the most part by one of these three ways : namely , either by reason of the foundation , for that the patron or his ancestors , or those from whom he claims , were founders or builders of the church ; or by reason of donation , for that they did endow or give lands to the same for maintenance thereof ; or else by reason of the ground , because the church was set or built upon their soil or ground : and many times by reason of all three . paunage or pannage . paunage , or pannage , is that mony which the agistors of forests do gather for the feeding of hoggs within the forrest : and it is also taken for all manner of mast of trees within the forest on which the hogs do feed . see manw. for. laws , chap. . fol. . a. peers . peers are those that are impannelled in an enquest upon any man , for the convicting or clearing him of any offence for which he is called in question . the reason of which appellation of the iury is , for that peers comes from the latin pares , that is , equals ; and the custome of our nation is , to try every man by his equals , that is to say , by his peers . and so it appears by the statutes of magna charta , cap. . & west . . cap. . this word is also used for the nobility of the realm and lords of the parliament , who are called the peers of the realm . and of that see stamf. pl. of the crown , lib. . cap. . fol. . perambulatione facienda . perambulatione facienda is a writ that lies where two lordships lie one nigh another , & some encroachment is made by long time ; then , by assent of both lords , the sheriff shall take with him the parties and the neighbours , and shall make perambulation , and shall make the bounds as they were before . but if a lord encroach upon another , and he will not make perambulation , then the lord so grieved shall have a writ against the other , which is called de rationalibus divisis . perjury . perjury is a corrupt or voluntary false oath given in chancery or in evidence to a iury upon tryal of an issue at common law. see stat. el. cap. . perinde valere . perinde valere is a term that belongs to the ecclesiastical law , and signifies a dispensation granted to a clerk who not being capable of a benefice or other ecclesiastical function is de facto admitted to it . and it hath the name from the words which make the faculty as effectual to the party , as if he were actually capable of the thing for which he hath his dispensation at the time of his admittance . pernor of profits . pernor of profits is he that takes the profits . pernor of profits and cestuy que use is all one , coke , lib. . casu chudley , fol. . but one may be pernor of , &c. and not cestuy que use by title , but by coven , which see co. . , . co. entr. . leo. rep . . anderson . . stat. . h. . . perpetuity . perpetuity is used in law where an estate is so designed to be settled in tail , &c. that it cannot be undone or made void . which the state cannot bear , as is said in the end of the case . moo . rep . , . co. . . . co. . . & l. . . per quae servitia . per quae servitia is a writ iudicial , and goes out upon the note of a fine ; and it lies for the conusee of a mannor or seigniory , to compel him that is tenant of the land at the time of the fine levied to attourn to him . and of this writ see the old n. b. f. . a. perquisites . perquisites are advantages and profits that come to a mannor by casualty , and not yearly ; as escheats , harriots , reliefs , waifes , estrays , forfeitures , amerciaments in courts , goods and lands purchased by villains of the same mannor , fines of copiholds , and divers other like things that are not certain , but come by chance , sometimes more often than at other times . see perkins , fol. , & . personalty personalty : as the action is in the personalty , that is , to say , brought against the right person , or the person against whom in law it lies . petit cape . petit cape is a writ that lies when any actios real , that is to say , of plea of land , is brought , and the tenant appears , and afterward makes default ; then this petit cape shall go forth to seise the lands into the kings hands . but if he appears not at the first summons , then a grand cape shall go forth ; and for such defalt the tenant shall lose the land. but if he wage his law of non-summons , he shall save his default , and then he may plead with the demandant . and in grand cape the tenant shall be summoned to answer to the default , and farther to the demandant : but in petit cape he shall be summoned to answer to the default only , and not to the demandant . and it is called petit cape , for that there is less in this writ than in the other . pettybag . pettybag is an office in the court of chancery , for suits for and against attorneys and officers of that court ; and for process and proceedings by extents on statutes , recognizances , ad quod dampnum , &c. parva baga dicitur . petit serjeantie . to hold by petit serjeantie is as if a man held lands or tenements of the king , yielding him a knife , a buckler , an arrow , a bow without string , or other like service , at the will of the first feoffor ; and there belongs not ward , marriage or relief . and mark well , that a man may not hold by grand or petit serjeanty , but of the king. see the stat. . car. . cap. . piccage . piccage is the payment of money , or the money paid for the breaking of the ground to set up booths and standings in fairs . picle or pitle . picle , or pitle , seems to come from the italian picco ● o , parvus , and signifies with us a little small close or inclosure . pillory . pillory is an engine of punishment ordained by the statute of h. . for the punishment of bakers ; but now used for many other offendors , and is called in latine collistrigium . pipowders . pipowders is a court which is incident to every fair , for the determination of differences upon bargains and disorders therein . see more hereof crom. jurisd . fol. . coke , lib. . fol. . piscary . piscary is a liberty of fishing in another mans waters , or his own . placard . placard is word used in the statutes of h. . cap. . & & ma. cap. . and it signifies a licence to use unlawful games , or to shoot in a gun. plaintiff . plaintiff is he that sues or complains in an assise , or in an action personal ; as in an action of debt , trespass , disceit , detinue , and such other . pledges . pledges are sureties either real or formal which the plaintiff finds to prosecute his suit . pleading . pleadings are all the sayings of the parties to suits after the count or declaration ; namely , that which is contained in the bar , replication , and rejoynder ; and not that contained in the count it self : and therefore defaults in the matter of count are not comprised within mispleading , or insufficient pleading , nor are remedied by the statute of jeofails , h. . but only the mispleading or insufficient pleading committed in the bar , replication and rejoynder , are there provided for . but see those now remedied also by the statute of eliz. cap. . plenartie . plenartie is , when a benefice is full , directly contrary to vacation , which signifies the being void of a benefice , stamf. prerog . cap. . fol. . plevyn . see replevyn . pluralities . pluralities are where a uicar or rector has two or more ecclesiastical benefices , for which see stat. . h. . cap. . policy of assurance . policy of assurance is a course taken by merchants for the assuring of their adventures upon the sea , by giving a certain proportion in the hundred for securing the safe return of the ship , and so much merchandize as is agreed upon . and of this you may read in the statute of eliz. cap. . vpon which an action lies at the common law , or in the court ( by the kings patent ) sitting at the royal exchange in london , the iudges of which are civilians , common lawyers and merchants . pone . pone is a writ whereby a cause depending in the county-court is removed into the common-pleas . see for this old n. b. fol. . a. pontage . pontage is a word mentioned in many statutes : as in westm . . cap. . h. . cap . & eliz. cap. . and it signifies sometimes the contribution that is gathered for the repairing of a bridge ; sometimes the toll paid by the passengers to that purpose . portgreve , see viscount portmoot . portmoot is a word used in the statute of eliz. cap. . and signifies a court kept in a haven-town . possessio fratris . possessio fratris , is where a man hath a son and a daughter by one woman , and a son by another venter , and dies ; the first son enters and dies without issue , the daughter shall have the land as heir to her brother , although the second son is heir to the father . litt. sect. . possession . possession is twofold ; either actual , or in law. actual possession is , when a man actually enters into lands or tenements to him discended , or otherwise . possession in law is , when lands or tenements are descended to a man , and he hath not as yet really , actually , and in deed entred into them . and it is called possession in law , because in the eye and consideration of the law he is deemed to be in possession , since he is tenant to every mans action that will sue concerning the same lands or tenements . post diem . post diem is the return of a writ after the day assigned for its return . postd ● sseisin . postdisseisin . look for that before in the title assise . postea . postea is the record of the proceedings upon a trial by a writ of nisi prius , which is returned after the trial by the iudge before whom it was tried into the court where the first suit began , to have iudgment there given upon the verdict : and it is called the postea , because it begins with postea die & loco , &c. poundage . poundage is a subsidie to the value of d. in the pound , which is granted to the king by every merchant , as well denizen as alien , for all manner of merchandize carried out and brought in . and of such subsidies see the statute & ed. . cap. . & jac. cap. . & car. . cap. . also by stat. el. cap. . every sheriff is allowed poundage for levying debt or damages by execution . pounds . pounds are in two sorts ; the one pound open , the other close . pound open , is every place wherein a distress is put , whether it be common pound , or back-side , court , yard , pasture , or else whatsoever whereto the owner of the distress may come to give them meat , without offence for their being there , or his coming thither . pound close is such a place where the owner of the distress may not come to give them meat without offence ; as in a close house , or whatsoever else place . preamble . preamble takes his name of the preposition ( prae ) before , and the verb ( ambulo ) to go ; so joyned together , they make the compound verb ( praembulo ) to go before ; and hereof the first part or beginning of an act is called the preamble of the act , which is a key to open the minds of the makers of the act , and the mischiefs which they intend to remedy by the same . as for example , the statute made at westm . the first , the chap. which gives an attaint , the preamble of which is thus : forasmuch as certain people of the realm doubt very little to give false verdicts or oaths , which they ought not to do , whereby many people are disherited , and lose their right ; it is provided , &c. prebend and prebendary . prebend and prebendary are terms often used in our books , and they come of the latine ( praebeo ) prebend is that portion which every member or canon of the cathedral church receives in right of his place for his maintenance : and prebendary is he that hath such a prebend . precipe or praecipe in capite . precipe in capite is a writ that lies where the tenant holds of the king in chief as of his crown , and he is deforced , that is , put out of his land ; then he shall have this writ , and it shall be close , and shall be pleaded in the common pleas. also if any tenant that holds of any lord be deforced , it behoves him to sue a writ of right patent , which shall be determined in the lords court. but if the land be holden of the king , the writ of right patent shall be brought to the kings court : and the writ may be removed from the lords court unto the county by a to ● t , and from the county into the common place by a pone . look therefore before in the title drolt . praecipe . praecipe are of divers sorts : quod reddat terras , as dower , formedon , &c. debitum , bona & catalla . quod teneat conventionem , quod faciat sectam ad molendinum , quod permittat , &c. preignotary . preignotary is compounded of two latine words ( prae and notarius ; ) and is used in our law for the chief clerks of the kings courts , whereof there is one in the kings bench , and three in the common pleas. he in the kings bench records all actions civil sued in that court : and they of the common pleas inrol all declarations , pleadings , and iudgments , and make out all iudicial writs , they inroll all fines and recognisances , and exemplifie all records the same term before the rolls are delivered out of their hands . in e. . b. this officer is called praesignator : and one of the three in the common bench , praesignator pauperum . premisses . premisses . see habendum . praemunire . praemunire is a writ that lies where any man sues another in the spiritual court for any thing that is determinable in the kings court ; for which great punishment is ordained by divers statutes ; viz. that he shall be out of the kings protection , and put in prison without bail or mainprise , till he have made fine at the kings will , and that his lands and goods shall be forfeited if he come not within two months . and his provisors , procurators , atturneys , executors , notaries and maintainers , shall be punished in the same manner . therefore look the statute . also some say , if a clerk sue another man in the court of rome for a thing spiritual , where he may have remedy within the realm in the court of his ordinary , that he shall be within the case of the statute . and upon divers other offences is imposed , by statutes lately made , the penalty that they incur who are attainted in praemunire : as by eliz. cap . they who are aiding to make a corrupt bargain whereupon vsury is reserved above x. l. in the hundred for a year , &c. prender . prender is the power or right of taking a thing before it be offered ; from the french prendre , i. accipere . prescription . prescription is , when a man claims any thing , because he , his ancestors or predecessors , or they whose estate he hath , have had or used it all the time whereof no memory is to the contrary . but one may not prescribe against a statute , except he have another statute that serves for him . presentment . presentment is of two significations . one is to a church ; as when a man hath right to give any benefice spiritual , and names the person to the bishop to whom he will give it , and makes a writing to the bishop for him , that is a presentation or presentment . if divers coheirs cannot agree in presentment , the presentee of the eldest shall be admitted . but if ioyntenants and tenants in common agree not within six moneths , the bishop shall present by lapse . the other is a presentment or information by a iury in a court , before any officer who hath authority to punish any offence done contrary to the law. pretensed right or title . pretensed right or title is , where one is in possession of lands or tenements , and another who is out , claims it , and sues for it : now the pretensed right or title is said in him who so doth sue & claim . and if he afterward come to the possession , his right or title is annexed to the land and possession , and not then called right . primer seisin . primer seisin is used in the common law for a branch of the kings prerogative , by which he hath the first possession , that is , the intire profits for a year of all the lands and tenements whereof his tenant ( that held of him in capite ) died seised in his demesne as of fee , his heir then being at full age : and thus the king takes in lieu of the intire profits which he may take , if he will , until livery be sued , or at the least tendered . prerog . reg. c. . & stamf. f. . b. see the stat. car. . c. . prisage . prisage is that part or portion that belongs to the king of such merchandizes as are taken at sea by way of lawful prise . and this word you shall find in the statute of ell ● . cap. . prisage of wines . prisage of wines , mentioned in the stat. h. . c. . is a custom by which the king out of every bark laden with wine under tun , claims to have two tun at his own price . privie or privities . privie or privities is , where a lease is made to hold at will , for years , for life , or a feoffment in fee , and in divers other cases ; now because of this that hath passed between these parties , they are called privies , in respect of strangers , between whom no such conveyantes have been . also if there be lord and tenant , and the tenant holds of the lord by certain service , there is a privity between them , because of the tenure : and if the tenant be disseised by a stranger , there is no privity between the disseisor and the lord , but the privity still remains between the lord and the tenant that is disseised , and the lord shall avow upon him , for that he is his tenant in right , and in iudgment of the law. privies are in divers sorts ; as namely , privies in estate , privies in deed , privies in law , privies in right , and privies in blood. privies in estate is , where a lease is made of the mannor of dale to a for life , the remainder to b in fee ; there both a and b are privies in estate , for their estates were both made at one time . and so it is in the first case here , where a lease is made at will , for life , or years , or a feoffment in fee , the lessees or feoffees are called privies in estate , and so are their hairs , &c. privies in deed is , where a lease is made for life , and afterward by another deed the reversion is granted to a stranger in fee , this grantee of the reversion is called privy in deed , because he hath the reversion by deed. privy in law is , where there is lord and tenant , the tenant leases the tenancy for life , and dies without heir , and the reversion escheats to the lord ; he is said privy in law , because he hath his estate only by the law , that is to say , by escheat . privy in right is , where one possessed of a term for years grants his estate to another upon condition , and makes his executors , and dies ; now these executors are privies in right ; for if the condition be broken , and they enter into the land , they have it in right of their testator , and to his use . privy of blood is the heir of the feoffor or donor , &c. also if a fine be levied , the heirs of them that levied the fine are called privies . privileges . privileges are liberties and franchises granted to an office , place , town , or mannor by the kings great charter , letter patents , or act of parliament : as toll , sake , socke , infangtheef , outfangtheef , tourne , ordelfe , and divers such like ; for which look in their proper titles and places . also there are other privileges which the law takes notice of , that is to say , the privileges of the commons & peers of the parliament , & the privileges of attornies & officers of the courts at westm . that they shall not be sued or impleaded in another court , but in that where they are attornies or officers . procedendo . procedendo is a writ that lies where any action is sued in one court , which is removed to another more high , as to the chancery , kings bench , or common place , by a writ of priviledge or certiorari : and if the defendant , upon the matter shewed , have no cause of priviledge , or if the matter in the bill whereupon the certiorari issued be not well proved , then the plaintiff shall have this procedendo , to send again the matter unto the first base court , there to be determined . proces . proces are the writs and precepts that go forth upon the original . and in actions real and personal there are sundry sorts of proces : for in actions real the proces i ● grand cape before appearance : therefore see of that in the 〈◊〉 petit cape . but in actions personal , as in debt , trespass , or detinue , the proces is a distress : and if the sheriff return nihil habet in balliva , &c. then the proces is alias capias , and pluries and an exigent ; and they are called capias ad respondendum . also the exigent shall be proclaimed five times ; and if the party do not appear , he shall be outlawed . but in divers actions there are divers manners of proces , which at large is declared in n. b. and there are divers other proces after appearance , when the parties are at issue , to make the enquest appear : as a writ of venire facias ; and if they do not appear at the day , then a writ of habeas corpora jurat ' , and after a writ of dist ● ingas jurat ' . and there are divers other proces after iudgment ; as capias ad satisfaciendum , and capias utlagatum , &c. capias ad satisfaciendum lies where a man is condemned in any debt or dammage , then he shall be arrested by this writ , and put in prison without bail or mainprise , till he hath paid the debt and the dammages . capias utlagatum lies where one is outlawed , then he shall be taken by this writ , and put in prison without bail or mainprise , for that he had the law in contempt . and there are other proces and writs iudicial , as capias ad valentiam , fieri facias , scire facias , and many other : and therefore look for them in their titles . next friend . next friend is commonly taken for gardian in soccage , and is where a man seised of land holden in socage dies , his issue within age of years , then the next friend , or next of kin , to whom the lands cannot discend , shall have the keeping of the heir , and of the land , to the only use of the heir until he come to the age of years ; and then he may enter , and put the gardian out , and bring him to accompt : but in that accompt he shall be allowed for all reasonable costs and expences bestowed either upon the heir or his land. the next friend , or next of kin , to whom the inheritance cannot discend , is thus to be understood : if the lands discend to the heir from his father , or any of the kin of his fathers side , then the mother , or other of the mothers side , are called the next of kin , to whom the inheritance cannot discend ; for before it shall so diseend , it shall rather escheat to the lord of whom it is holden . and where the lands come to the heir from his mother , or any of her side , then the father , or other of the fathers side , are called the next of kin , to whom the inheritance cannot discend , but shall rather escheat to the lord of whom it is holden . otherwise prochein amy is he who appears in any court for an infant who sues any action , and aids the infant to pursue his suit : whereof see the statutes of westm . . cap. . and westm . . cap. . that an infant may not make an atturney , but the court may admit the next friend for the plaintiff , and a gardian for the infant defendant as his atturney . proclamation . proclamation , is notice publickly given of any thing whereof the king thinks good to advertise his subjects : so it is used anno . r. . c. . proclamation of rebellion , is an open notice given by an officer , that a man not appearing upon a subpoena or attachment in the chancery , shall be reputed a rebell , except he render himself at the day assigned . crompt . jurisdict . fol. . and it is to be noted , that no man may make proclamation but by authority of the king , or majors , and such like as have proviledges in cities and boroughs so to do , or have it by custom . and therefore where an executor made proclamations in certain market-towns , that the creditors should come by a certain day , and claim and prove their debts due by the testator , and because he did this without authority , he was committed to the fleet , and fined . brook proclamation . procurator . procurator is used for him who gathers the fruits of a benefice for another man , anno ric. . stat. . cap. . prohibition . prohibition is a writ that lies where a man is impleaded in the spiritual court of a thing that touches not matrimony , nor testament , nor meerly tithes , but the kings crown . this writ shall be directed as well to the party , as to the iudge , or his official , to prohibit them that they pursue no farther . but if it appear afterward to the iudges temporal , that the matter is fit to be determined in the spiritual court , and not in the court temporal , then the party shall have a writ of consultation , commanding the iudges of the court spiritual to proceed in the first plea. also there are many other prohibitions to the admiralty , and to other courts of common-law if they exceed their power . properite . propertie is the highest right that a man hath or can have to any thing , which no way depends upon another mans courtesie : and this none in this kingdom can be said to have in any lands or tenements , but only the king in right of his crown , because all the lands through the realm are in nature of fee , and hold mediately or immediately of the town . this word nevertheless is used for such right in lands and tenements as common persons have in the same . and there are three manner of rights of property : that is , property absolute , property qualified , and property possessory : of which see at large cok. lib. . case de swans , fol. . proprietary . proprietary is he that hath a property in any thing ; but is most commonly used for him who hath the profits of a benefice to him and his heirs , or to himself and his successors . as in times past abbots and priors had . protection . protection is a writ that lies where a man will pass over the sea in the kings service , then he shall have this writ , whereby he shall be quit of all manner of pleas between him and any other person . except pleas of dower , quare impedit , assise of novel disseisin , darrein presentment and attaints , and pleas before iustices in eyre . but there are two writs of protection , one cum clausula volumus , and another cum clau ● ula nolumus , as appears in the register . but a protectiou shall not be allowed in any plea begun before the date of it , if it be 〈◊〉 in veyages where the king himself shall pass , or other voyages royal , or in messages of the king of affairs of the realm . nor shall a protection be allowed for victual brought for the voyage whereof the protection makes mention , nor in pleas of trespass , or of contracts made after the date of the protection . note , that any may attach or begin any action real against him that hath such protection , and therein proceed , until the defendant comes and shews his protection in the court , and hath it allowed ; and then his plea or suit shall go without day . but if after it appears that the party who hath the protection goes not about the affairs for which he hath it , then the demandant shall have a repeal thereof . and if he go , and return after the business ended , the demandant shall have a resummons to recontinue the former suit. protestation . protestation is a form of pleading , when any will not directly affirm , nor directly deny anything that is alledged by another , or which he himself alledges . and it is in two sorts . one is , when one pleads any thing which he dare not directly affirm , or cannot plead for doubt to make his plea double : as if in conveying to himself a title to any land , he ought to plead divers discents by divers persons , and he dare not affirm that all they were seised at the time of their death , or although he could do it , it shall be double to plead two discents ; of both which each by it self may be a good bar. then the defendant ought to plead and alledged the matter , interlacing this word protestando , as to say , that such a one died ( by protestation ) seised , &c. and that is to be alledged by protestation , and not to be traversed by the other . another protestation is , when one is to answer to two matters , and yet by the law he ought to plead but to one ; then in the first part of the plea he shall say to the one matter , protestando , and non cognoscendo this matter to be true , and makes his plea farther by these words , sed pro placito dicit , &c. and this is for saving to the party ( that so pleads by protestation ) the being concluded by any matter alledged or objected against him , upon which he cannot joyn issue ; and is no other but an exclusion of the conclusion ; for he that takes the protestation excludes the other party to conclude him . and the protestation ought to stand with the sequel of the plea , and not to be repugnant , or otherwise contrary . provendry . provendry in the church of sarum , is called the lesser part of the altar in the church of st. mary , e. . . b. provision . provision is used with us as it is in the common law , for providing of a bishop or other ecclesiastical person of an ecclesiastical living by the pope before the incumbent of it be dead ; the great abuse whereof appears by several statutes that have been made from the time of e. . to the reign of h. . for the avoiding of such provisions . rast . entries . quare impedit . roy . . proviso . proviso is a condition inserted in any deed , upon the performance whereof the validity of the deed consists . sometimes it is only a covenant , whereof see coke , lib . in the lord cromwels case . it hath also another signification in matters judicial : as if the plaintiff or demandant desists from prosecuting an action , and brings it not to trial , then the defendant or tenant may take forth the venire facias to the sheriff , which hath in it these words , proviso quod , &c. to this end , that if the plaintiff takes out any writ to this purpose , the sheriff shall summon but one iury upon them both . see old natura brevium in the writ nisi prius , fol. . prov ● sor . see praemunire . proxy . procuratio . proxy . procuratio is a payment to a bishop by a religious house , for the charges of his visitation of such houses , davies rep . . purchase . purchase is the possession that a man hath in lands or tenements by his own act , means or agreement , and not by title of discent from any of his ancestors . see littl. l. . c. . purlue . purlue is all the ground near any forrest , which being made forest by henry the second , richard the first , or king john , was by perambulations granted by henry the third severed again from the same . manwood part . of his forrest laws , c. . and it seems that this word is composed either of pouralle , that is , to go or walk about ; or purelieu , that is , a pure place , because such lands as were by those kings subjected to the laws and ordinances of the forrest , are now cleared and freed from the same : as the civilians call that a pure place , which is not subject unto burials ; fo ●● kewise this may be called a pure place , because it is exempted from the servitude and thraldom which was formerly laid upon it . purlue man is he that hath lands within the purlieu , and being able to dispenh forty shillings by the year of free-hold , is upon these two points licensed to hunt in his own purlieu . manwood , part . p. . & . see now the stat. made jac. c. . purpresture . purpresture is a wo ●● derived from the french ● ourpr ●● , which signifies to take from another , and to app ●● priate to himself : and therefore a purpresture in a general sense is taken for any such wrong done by one man to another . purpresture in a forrest is every incroachment upon the kings forrest , be it by building , inclosing , or using of any liberty without a lawful warrant so to do . and of this see manwood in his forrest laws , c. . f. . a. purveyors . purveyors were ancient officers to provide victuals for the king , which office is mentioned in the statute , e. . cap. . & e. . cap. . & e. . cap. . but it is abolished by the stat. car. . cap. . q. quadrantata terrae . quadrantata terrae is the fourth part of an acre . quae plura . quae plura is a writ that lies in case where the escheator hath found an office after the death of the kings tenant virtute officii , and hath not found all the lands of which he died seised ; then this writ shall issue in nature of a melius inquirendo ; to find what lands he had more . see f. n. b. f. . a. quale jus . quale jus is a writ that lies where an abbot , prior , or such other , should have iudgment to recover land by default of the tenant against whom the land is demanded ; then before iudgment given , or execution awarded , this writ shall go forth to the escheator , to enquire what right he hath to recover : and if it be found that he hath not right , then the lord who should have the land if the tenant had aliened in mortmain may enter as into land aliended in mortmain , for this losing by default is like an alienation . see the stat. westm . . c. . but where one will give lands to a house of religion , an ad quod damnū shall go forth to the escheator , to enquire of what value the land is , and what prejudice is shall be to the king. quare ejecit infra terminum . quare ejecit infra terminum is a writ that lies where one makes a lease to another for term of years , and the lessor infeoffs another , and the feoffee puts out the termour ; then the termour shall have this writ against the feoffee . but if another stranger put out the termour , then he shall have a writ de ejectione firmae against him . and in these two writs he shall recover the term and his dammages . quare impedit . quare impedit is a writ that lies where i have an addowson , and the parson dies , and another presents a clerk , or disturbs me to present ; then i shall have the said writ . but assise de darrein presentment lies where i or my ancestors have preseuted before . and where a man may have art assise de darrene presentment , he may have a quare impedit , but not contratiwise . also if the plea be depending between two parties , and be not discussed within fix moneths , the bishop may present by lapse , and he that hath right to present shall recover his dammages , as appears by the statute of westm . . c . and if he that hath right to present after the death of the parson brings no quare impedit , nor darreine presentment , but suffers a stranger to usurp upon him , yet he shall have a writ of right of advowson : but this writ lies not , unless he claim to have the advowson to him and his heirs in fee. quare incumbravit . quare incumbravit is a writ that lies where two are in plea for the advowson , and the bishop admits the clerk of one of them within the six moneths ; then he shall have this writ against the bishop . but this writ lies always depending the plea. quare intrusit matrimonio non satisfacto . quare intrusit matrimonio non satisfacto is a writ that lies where the lord profers convenable marriage to his ward , and he refuses , and enters into the land , and marries himself to another ; then the lord shall have this writ against him . quare non admifit . quare non admifit is a writ that lies where a man hath recovered an advowson , and sends his convenable clerk to the bishop to be admitted , and the bishop will not receive him ; then he shall have the said writ against the bishop . but a writ of ne admittas lies where two are in plea ; if the plaintiff suppose the bishop will admit the clerk of the defendant , then he may have this writ to the bishop , commanding him not to admit him hanging the plea. quarels . quarels is derived from querendo , and extends not only to actions as well real as personal , but also to the causes of actions and suits ; so that by the release of all quarels , not only actions depending in suit ; but causes of action and suit also are released ; and quarels , controversies and debates , are words of one sense , and of one and the same signification , coke , lib. . fol. . quarentine . quarentine is , where a man dies seised of a mannour-place and other lands , whereof the wife ought to be endowed ; then the woman may abide in the mannour-place , and there live of the store and profits thereof the space of sorty days , within-which time her dower shall be assigned : as it appears in magna charta , cap. . que estate . que estate is a term in pleading to avoid prolixity ; as if a man pleads a feoffment in fee to a. cujus statum idem b. modo habet , and no one can plead it but tenant of the fee ; nor can it be pleaded of things which pass meerly by grant as advowsons franchises , &c. quid juris clamat . quid juris clamat is a writ that lies where i grant the reversion of my tenant for life by fine in the kings court , and the tenant will not attorn ; then the grantee shall have this writ to compel him . but a writ of quem redditum reddit lies where i grant by fine a rent charge , or another rent which is not rent service , which my tenant holds of me , and the tenant will not attorn ; then the grantee shall have this writ . and a writ of per quae servitia lies in like case for rent service . also if i grant four divers rents to one man , and the tenant of the land attourns to the grantee by payment of a peny , or of a half peny , in the name of attournment of all the rents ; this attournment shall put him in seisin of all the rent . but these three writs ought to be brought against those who are tenants at the day of the fine levied , and against no other . fifteenth . fifteenth is a payment granted in parliament to the king by the temporalty , namely , the fifteenth part of their goods : and it was used in ancient time to be levied upon their cattel going in their grounds , which thing was very troublesome ; and therefore now for the most part that way is altered , and they use to levie the same by the yard or acre , or other measure of land ; by means whereof it is now less troublesome and more certain than before , and every town and country know what sum is to be paid among them , and how the same shall be raised . we read that moses was the first that numbred the people , for he numbred the israelites ; and the first tax , subsidy , tribute or fifteenth , was invented by him among the hebrews , as polydore virgil thinks . quit claim . quit claim is a release or acquitting of a man for any action that he hath or might have against him , bracton l. . tract . . ca. . nu . . quo jure . quo jure is a writ that lies where a man hath had common of pasture in anothers several within the time of memory ; then he to whom the several belongs shall have this writ to charge him to shew by what title he claims the common . quo minus . quo minus is a writ that lies where a man hath granted to another housebote and heybote in his wood , and the grantor makes such waste and destruction that the grantee cannot have his reasonable estovers ; then the grantee shall have the aforesaid writ , which is in nature of a writ of waste . and note that housebote is certain estovers to mend the house ; and heybote certain estovers to mend heyes and hedges . there is another writ called a quo ● inus in the exchequer , which any termor or debtor to the king shall have against any other for debt or trespass in the excheques office called the common pleas , by which the plaintiff shall surmise , that for the wrong which the defendant doth him , he is less able to pay the king his debt or term ; which is surmised to give iurisdiction to the court of exchequer to hear and determine the cause of the suit between them , which otherwise should be determined in another court. quo warranto . quo warranto is a writ that lies where a man usurps to have any franchise upon the king ; then the king shall have this writ , to make him come before his iustices , to shew by what title he claims such franchise . quod ei deforceat . quod ei deforceat is a writ that lies where tenant in tail , tenant in dower , or tenant for life loses by default in any action ; then he shall have this writ against him that recovers , or against his heir , if he think he hath better right than he who recovered . see the statute west . . cap. . quod permittat . quod permittat is a writ that lies where a man is disseised of his common of pasture , and the disseisor aliens or dies seised , and his heir enters ; then if the disseisee die , his heir shall have this writ quod permittat . habere chiminum . rast . entr. . co. entr. . estoverium turbarum . f. n. b. . passagium ꝑ aquam . rast . entr. . liberam chaceam . institut . . liberum raurum . f. n. b. . liberam faldam . ibid. & . e. . . liberam piscar . &c. ibidem . prosternere domum , murum , sepem , coke . ripam , &c. coke . r. ran. ran signifies so open a spoiling of a man , that it cannot be denied lambert arch. fol. . ranger . ranger comes from the french word rang , ( that is , ordo vel series ) and signifies an officer of the forrest that is appointed to walk every day through the purlieu whereof he is ranger , to drive back the wilde beasts into the forrest again ; to see , hear , and inquire of offenders there , and to present their offences . see manwood , cap. . fol. . &c. ransome . ransome signifies properly the sum that is paid for the redeeming of one that is taken captive in war. but it is also for a sum of money paid for the pardoning of some great offence ; as in the statute of h. . cap. . and in other statutes : fine and ransome going together ; h. . cap. . and elsewhere . rape . rape hath two significations : the first is when it is taken for part of a county ; as sussex is divided into six parts , which by a peculiar name are called rapes , cambd. britan. pag. . and these parts in other countries are called hundreds , tithings , lathes , or wapentakes . in the other sense it is the violent deflouring a woman against her will : and this offence is felony , as well in the principal as in his aidors . see h. . c. . ed. . c. . west . . c. . crōpt . just of peace , f. , . rationabili parte bonorum . rationabili parte bonorum is a writ that lies for the wife against the executors of her husband , to have the third part of his goods after debts paid and funeral expences discharged . but whether this writ lies by the common law , or only by the custom of some countries , is a question in our books , see f. n. b. fol. . l. rationabilibus divisis . rationabilibus divisis is a writ that lies where there are two lordships in divers towns , and one nigh the other , and any parcel of one lordship , or waste , hath been incroched by little parcels ; then the said lord from whom the parcel of ground or waste hath been incroched shall have this writ against the lord that hath so incroched . ravishment de gard. ravishment de gard , is a writ that lies for the gardian by knights service , or in soccage , against him that takes from him the body of his ward . and of this see f. n. b. fol. . e. &c. rebutter . rebut ● er is , when one by deed or fine grants to warrant any land or hereditament to another , and he who made the warranty , or his heir , s ● es him to whom the warranty is made , or his heir , or assignee , for the same thing : now if he who is so sued pleads the said deed or fine with warranty , and demands iudgment , if the plaintiff shall be received to demand the thing which he ought to warrant , against that warranty , by fine or deed aforesaid , comprehending such warranty , such pleading of the warranty is called a rebutter . this word is also a denomination of a plea which followeth a rejoynder : and after the rebutter followeth the surrebutter . see cokes entries fol. . recaption . recaption is a second distress of one former distrained for the self-same cause , and that during the plea grounded upon the former distress . it is also the name of the writ or remedy that the law gives him who is thus twice distrained for one thing : the form and use of which writ you may see in fitz. n. b. fol. . e. &c. recluse . recluse is one that by reason of his order in religion may not stir or depart out of his house or cloister . and of such littleton speaks , sect . . recognizance . recognizance is an obligation made before a master of the court of chancery for a debt , or to perform covenants , or an order or decree of the court , upon which an extent issues if the condition be not performed ; but no capias lies upon it against the cognizors or his executors , quaere & vide len. . recordare . recordare is a writ directed to the sheriff , to remove a cause out of an inferior court , as a court of ancient demesne , hundred court , or county court , into the kings bench , or common pleas. and of this , see fitz. n. b. fol. . b. record . record is a writing or parchment , wherein are enrolled pleas of land , or common pleas , deeds or criminal proceedings in any court of record : but in courts not of record , as admiralty , courts christian , courts baron , &c. their registry of proceedings are not properly called records : but courts of law held by the kings grant , are courts of record . recovery . recovery is commonly intended a common recovery by assent of parties to dock an intail , and is founded upon a writ of entry . also every iudgment is a recovery by the words ideo consideratum est quod recuperet . recusants . recusants are all those who separate from the church and congregation , by the laws and statutes established in this realm , of what opinion or sect they are of . as all the iudges have expounded the statute eliz. cap. . and divers other stat. redisseisin . redisseisin . look of that before in the title assise . reextent . reextent is a second extent made upon lands or tenements , open complaint made that the former extent was partially performed . broke tit . extent , fol. . regarder . regarder comes of the french regardeur , ( id est , spectator ) and signifies an officer of the kings forest , sworn to take care of the verr and venison , and to view and inquire of all the offences committed within the forrest , and of all the concealments of them ; and if all the officers of the forrest do well execute their offices or no. see manwood's forrest laws , cap. . fol. . b. regrator . regrator is he that hath corn , victuals , or other things sufficient for his own necessary use or spending , and doth nevertheless ingross and buy up into his hands more corn , victuals , or other such things , to the intent to sell the same again at a higher and dearer price , in fairs , markets , or other such like places : whereof see the statute e. . cap. . he shall be punished as a forestaller . rejoynder . rejoynder is , when the desendant makes answer to the replication of the plaintiff . and every rejoynder ought to have these two properties specially ; that is , it ought to be a sufficient answer to the replication , and to follow and enforce the matter of the barre . relation . relation is , where , in consideration of law , two times or other things are considered so as if they were all one , and by this the thing subsequent is said to take his effect by relation at the time preceding : as if one deliver a writing to another to be delivered to a third person , as the deed of him who delivered it , when the other , to whom it should be delivered , hath paid a summ of mony ; now when the money is paid and the writing delivered , this shall be taken as the deed of him who delivered it at the time when it was first delivered . so petitions of parliament , to which the king assents on the last day of parliament , shall relate and be of force from the first day of the beginning of the parliament . and so it is of divers other like things . release . release is the giving or discharging of the right or action which any hath or claims against another , or his land. and a release of right is commonly made when one makes a deed to another by these or the like words , remised , released , and utterly for me and my heirs quite claimed to a. b. all my right that i had , have , or by any means may have hereafter , in one messuage , &c. but these words ( whatsoever i may have hereafter ) are void : for if the father be disseised , and the son release by his deed without warranty all his right , by those words ( whatsoever i may have hereafter , &c. ) and the father dies ; the son may lawfully enter in the possession of the disseisor . also in a release of right it is needful , that he to whom the release is made have a freehold or a possession in the lands in deed or in a law , or a reverston at the time of the release made ; for if he have nothing in the land at the time of the release made , the release shall not be to him available . see more hereof in littl. lib. . cap. . relicta verificatione . relicta verificatione is when a defendant hath pleaded , and the issue is entred of record . and after that , the defendant relicta verificatione ( que est son plea ) acknowledges the action , and thereupon iudgment is entred for the plaintiff . relief . relief is sometimes a certain summ of mony that the heir shall pay to the lord of whom his lands are holden , which after the decease of his ancestor are to him descended as next heir . sometimes it is the payment of another thing , and not mony . and therefore relief is not certain and alike for all tenures , but every several tenure hath ( for the most part ) his special relief certain in it self . neither is it to be paid always at a certain age , but varies according to the tenure . as if the tenant have lands holden by knights service , ( except grand serjeanty ) and dies , his heir being at full age , and holding his lands by the service of a whole knights fee ; the lord of whom these lands are so holden shall have of the heir an hundred shillings in the name of the relief : and if he held by less than a knights fee , he shall pay less , and if more , then more ; having respect always to the rate for every knights fee cs. and if he held by grand serjeanty , ( which is always of the king , and is also knights service ) then the relief shall be the value of the land by the year , besides all charges issuing out of the same . and if the land be holden in petit serjeantie or in socage , then for the relief the heir shall pay at one time as much as he ought to pay yearly for his service ; which is commonly called the doubling of the rent . and if a man hold of the king in chief , and of other lords , the king shall have the ward of all the lands , and the heir shall pay relief to all the lords at his full age : but the lords shall sue to the king by petition , and shall have the rent for the time that the infant was in ward . but see now that by the statute of e. . cap. . the mesne lords are not put unto their petition , but shall have all the rents paid them by the kings officers upon request yearly during the kings possession . and note , that always when the relief is due , it must be paid at one whole payment , and not by parts , although the rent be to be paid at several feasts . see the statute car. . cap. . remainder . remainder of land is the land that shall remain after the particular estate determined : as if one grant land for term of years , or for life , the reinainder to j. s. that is to say , when the lease for years is determined ; or the lessee for life is dead ; then the land shall remain or abide with , to , or in j. s. see reversion . remembrancer del eschequer . remembrancer del eschequer : there are three officers or clerks there called by that name ; one is called the remembrancer of the king , the other of the lord treasurer , and the third of the first fruits . the kings remembrancer enters in his office all recognisances for the kings debts , apparances , and for observing of orders : also he takes all obligations for any of the kings debts , for apparances , and observing of orders , and makes out process upon them for the breaking of them . the lord treasurers remembrancer makes out process against all sheriffs , escheators , receivers and bailiffs , for their accounts : he makes the process of fieri sacias , and exteut for any debts due to the king , either in the pipe , or with the auditors ; and he makes process for all such revenue as is due to the king by reason of his tenures . the remembrancer of the first fruits takes all compositions for first fruits and tenths , and makes process against such as pay not the same . of these officers see more in dalton's book of the office and authority of sheriffs , f. . remitter . remitter is , when a man hath two titles to any land , and he comes to the land by the tast title ; yet he shall be judged in by force of his elder title , and that shall be said to him a remitter . as if tenant in tail discontinue the tail , and after disseises his discontinuee , and dies thereof seised , and the lands discend to his issue or cousin inheritable by force of the tail ; in that case he is in his remitter , that is to say , seised by force of the tail and the title of the discontinuee is utterly adnulled and defeated . and the reason and cause of such remitter is , for that such an heir is tenant of the land , and there is no person tenant against whom he may sue his writ of formedon to recover the estate tail : for he may not have an action against himself . also if tenant in tail infeoff his son or heir apparent who is within age , and after dies ; that is a remitter to the heir : but if he were full of age at the time of such feoffment , it is no remitter , because it was his folly , that he being of full age would take such a feoffment . if the husband alien lands that he hath in right of his wife , and after take an estate again to him and to his wife for term of their lives ; that is a remitter to the woman , because this alienation is the act of the husband , and not of the woman ; for no folly may be adjudged in the woman during the life of her husband . but if such alienation be by fine in court of record , such a taking again afterward to the husband and wife for term of their lives shall not make the woman to be in her remitter ; for that in such a fine the woman shall be examined by the iudge , and such examination in fines shall exclude such women for ever . also when the entry of any man is lawful , and he takes an estate to him when he is of full age , if it be not by deed indented , or matter of record , which shall estop him , that shall be to him a good remitter . rents . rents are of divers kinds ; that is , rent-service , rent-charge , and rent-secke . rent-service is , where the tenant in fee-simple holds his land of his lord by fealty and certain rent , or by other service and rent ; and theu if the rent be behind , the lord may distrain , but shall not have an action of debt for it . also if i give land in tail to a man , paying to me certain rent , that is rent-service . but in such case it behoves that the reversion be in the donor : for if a man make a feoffment in fee , or a gift in tail , the remainder over in fee , without deed , reserving to him a certain rent , such reservation is void , and that is by the statute quia emprores terrarum ; and then he shall hold of the lord of whom his donour held . but if a man by deed indented at this day make such gift in tail , the remainder over in fee , or lease for term of life , the remainder over , or a feoffment , and by the same indenture reserve to him rent , and that if the rent be behind , it shall be lawful for him to distrain ; that is rent-chage . but in such case , if there be no clause of distress in the deed , then such a rent is called rent-seck , for which he shall never distrain ; but if he were once seised , he shall have assise ; and if he were not seised , he is without remedy . and if one grant a rent going out of his land , with clause of distress , that is , a rēt-charge ; and if the rent be behind , the grantee may chuse to distrain , or sue a writ of annuity , but he cannot have both ; for if he bring a writ of annuity , then the land is discharged . and if he destrain , and avow the taking in court of record , then the land is charged , and the person of the grantor discharged . also if one grant a rent charge , and the grantee-purchases half , or any other part or parcel of the land , all the rent is extinct . but in rent service , if the lord purchase parcel of the land , the rent shall be apportioned . if one hath a rent charge , and his father purchase parcel of the land , and that parcel discends to the son , who hath the rent charge ; then the rent shall be apportioned according to the value of the land , as it is said of rent-service ; because the son comes to that not by his own act , but by discent . also if i make a lease for term of years , reserving to me a certain rent , that is called a rent service , for which it is at my liberty to distrain , or to have an action of debt : but if the lease be determined , and the rent behind , i cannot distrain , but shall be put to my action of debt . and note well , that if the lord be seised of the service and rent aforesaid , and they be behind , and he distrain , and the tenant rescues the distress , he may have assise , or a writ of rescous ; but it is not more necessary for him to have assise , then a writ of rescous ; for that by assise he shall recover his rent and his dammages ; but by a writ of rescous he shall recover only dammages , and the thing distrained shall be reprised . if the lord be not seised of the rent and service , and they be behind , and he distrain for them , and the tenant take again the distress ; he shall not have assise , but a writ of rescous , and the lord shall not need to shew his right . if the lord cannot find a distress in two years , he shall have against the tenant a writ of cessavit per biennium , as it appears by the statute of westm . . cap. . and if the tenant die in the mean time , and his issue enter , the lord shall have against the issue a writ of entry upon cessavit ; or if the tenant alien , the lord shall have against the alienee the foresaid writ . but if the lord have issue , and die , and the tenant be in arrearages of the said rent and service in the time of the father , and not in the time of the issue ; he may not distrain for the arrearages in the time of his father , and he shall have be no other recovery against the tenant or any other , because such advantage is given by the law to the tenant . and note , that fealty of common right belongs to rent service , but not to rent charge nor rent seck . if a man distrain for rent charge , and the distress be rescued from him , and he was never seised before , he hath no recovery but by writ of rescous ; for the distress first taken gives not seis ● to him , unless he had the rent before : for if he were seised of the rent before , and after the rent be behind , and he distrain , and rescous be made , he shall have assise , or a writ of rescous . in every assise of rent charge , and annual rent , or in a writ of annuity , it behoves him that brings the writ to shew an especialty , or else he shall not maintain the assise . but in an assise of mortdancestor or formedon in the discender or other writs ( in which title is given or comprised ) brought of rent charge or annual rent the especialty need not be shewn . and note well , that if a man grant a rent charge to another , and the grantee release to the grantor parcel of the rent , yet all that rent is not extinct . if rent charge be granted to two joyntly , and the one release , yet the other shall have the half of the rent . and if the one purchase the half of the land whereout the rent is going , the other shall have the half of the rent of his companion . and if the disseisor charge the land to a stranger , and the disseisee bring an assise and recover ; the charge is defeated . but if he that hath right charges the land , and a stranger feign a false action against him who hath no right , and recovers by default , the charge abides . in case partition be between two parceners , and more land be allowed to one then to the other , and she that hath most of the land charges her land to the other , and she happeth the rent ; she shall maintain assise without especialty . and it is a rent seck , where a man holds of me by homage , fealty , and other services , yielding to me a certain yearly rent , which i grant to another , reserving to me the other services . if rent seck be granted to a man and to his heirs , and the rent be behind , and the grantor die , the heir may not distrain , nor shall recover the arrearages of the time of his father , as it is said before of rent services . and in the same manner it is of rent charge , or annual rent . but in all these rents the heir may have for the arrerages in his own time such advantage as his father had in his life . see the statute h. . cap. . and note well , that in rent seck , if a man be not seised of the rent , and it be behind , he is without recovery , for that it was his own folly at the beginning , when the rent was granted him or reserved , that he took not seisin of it , as a peny or two pence . a man may not have a cessavit per biennium , or any other writ of entry sur cessavit , for any rent seck behind by two years , but only for rent service , as it appears in the stat. west . . cap. . it behoves him that sues for rent seck to shew a deed to the tenant , cise the tenant shall not be charged with the rent , except where the rent seck was rent service before ; as in this case : lord , mesne , and tenant , and every of them holds of other by homage and fealty , and the tenant of the mesne by s. rent ; the lord paramount purchases the lands or tenements of the tenant , all the seigniory of the mesne , but the rent is extinct : and for this cause this rent is become rent seck , and the rent service changed , for he may not distrain for this rent ; and in this case he that demands the rent shall never be charged to shew a deed. also in a writ of mordint-cestor , ayle or besayle , of rent seck , it needs not to shew a specialty , for that these writs of possession comprehend a title within themselves , that is to say , that the ancestor was seised of the same rent , and centinued his possession , in respect of which seisin the law supposes that it is also averrable by the countrey . yet learn , for some suppose a necessity to shew forth a deed , because rent seck is a thing against common right , as well as rent charge . but in assise of novel disseisin , and in a writ of entry sur disseisin brought of rent seck , it is needful to shew forth a deed ; for that rent seck is a thing against common right , except in the case aforesaid , where it was rent service before , and by the act of law it is become rent seck . and assise of novel disseisin and a writ of entry sur disseisin contain within them no title , but suppose a disseisin to be done to the plaintiff ; and by the intendment of the law the disseisin gives no cause of averment against common right , but there is a necessity to shew forth a deed. repleader . repleader is , where the plea of the plaintiff or defendant , or both are ill , or an impertinent issue joyned , then the court makes void all the pleas which are ill , and awards the parties to replead . coke entr. . and , . replevin . replevin is a writ that lies where a man is distrained for rent or other thing , then he shall have this writ to the sheriff , to deliver to him the distress , and shall find surety to pursue his action ; and if he pursue it not , or if it be found or judged against him , then he that tooks the distress shall have again the distress , which is called the return of the beasts ; and he shall have in such case a writ called returno habendo . but if the defendant avow for rent , he may have iudgment for the value of the cattel , by the statute of car. . cap. . if it be in any franchise or bailiwick , the party shall have a replevin of the sheriff directed to the bailiff of the same franchise , to deliver them again , and he shall find surety to pursue his action at the next county . and this replevin may be removed out of the county unto the common place by writ of recordare . see more of replevin in the title distress . also see mich. e. . pl. . & e. . . pl. . the word plevin , where land was taken out of the kings hands , and are afterwards delivered or replevied out of the kings hands . for which see stat. . . cap. . the writ of homine replegiando lies where a man is in prison , and not by special commandment of the king , nor of his iustices , nor for the death of a man , nor for the kings forest , nor for such cause which is not replevisable ; then he shall have this writ directed to the sheriff , that he cause him to be replevied . this writ is a justcies , and not retornable . and if the sheriff do it not , then there shall go forth another writ , sicut alias ; and afterward another writ , sicut pluries , vel causam nobis significes , which shall be retornable . and if the sheriff yet make no replevin , then there shall issue an attachment directed to the coroners to attach the sheriff , and to bring him before the iustices at a certain day ; and farther , that they make execution of the first writ . replication . replication is , when the defendant in any action makes an answer , and the plaintiff replies to that ; that is called the replication of the plaintiff . reprises . reprises are deductions , payments and duties that go yearly and are paid out of a mannor ; as rent chare , rent seck , pensions , corrodies , annuities , fees of stewards or bailiffts , and such like . reprieve . reprieve comes from the french repris , that is , taken back ; so that to reprieve is properly to take back or suspe ● d a prisoner from the execution and proceedings of the law for that time . requests . requests is a court held in the kings palace before the master of the requests by petition , and it seems is a court of equity . rere county . rere county is a word used in the statutes of westm . . cap. . and e. . c. . and seems by those statutes to be some publick place which the sheriff appointed for the receiving of the kings mony after his county court was done . resceit . resceit is , when any action is brought against the tenant for term of life or years , and he in the reversion comes in , and prays to be received to defend the land , and plead with the demandant : and when he comes , it behoves that he be alway ready to plead with the demandant . in the same manner a wife shall be received for the default of her husband in an action brought against them both . and tenant for years shall be received to defend his right , where , in an action brought against the tenant of the free-hold , he pleads faintly . rescous . rescous is a writ that lies when any man takes a distress , and another takes it again from him , and will not suffer him to carry the disress away ; this is a rescous , upon which he may have this writ , and shall recover dammages . also if one distrain beasts for dammage feasant in his ground , and drives them in the high way to impound them , and in going they enter into the house of the owner , and he withholds them there , and will not suffer the other to impound them ; that withholding is a rescous . also if a sheriff takes my debtor by an execution , or by mesne process , and j. s. rescue him out of the custody of the sheriff , i may have an action of rescous against j. s. for this wrong , and recover dammages and debt . reservation . reservation is taken divers ways , and hath divers natures . as sometimes by way of exception , to keep that which a man had before in him : as if a lease be made for years of ground , reserving the great trees growing upon the same , now the lessee may not meddle with them , nor with any thing that comes of them , so long as it abides in or upon the trees , as mast of oak , chesnut , apples , or such like ; but if they fall from the trees to the ground , then they are by right the lessees ; for the ground is let to him , and all thereupon not reserved , &c. sometimes a reservation doth produce and bring forth another thing which was not before : as if a man lease his lands , reserving yearly for the same xxli . &c. and divers other such reservations there be . and note , that in ancient time their reservations were as well in victuals , whether flesh , fish , corn , bread , drink , or what else , as in money , until at last , and that chiefly in the reign of king henry . by agreement the reservation of victuals was changed into ready money , as it hath hitherto continued . residence . residence comes from the latine residere , and is all one with resiance , but that this word residence is oftner appropriated to the continuance of a parson or vicar upon his church or benefice ; and so it is used in the statute of h. . cap. . resignation . resignation is , where an incumbent of a church resigns or leaves it to the ordinary , who did admit him to it , or to his successors ; which differs from surrender , since by that he to whom the resignation is made hath no interest in the thing so resigned , but he to whom the surrender is made hath by that the thing it self . restitution . restitution is , when a iudgment is reversed by error , then a writ of restitution shall issue , to restore to the defendant in the action what he hath lost . and there is a writ of restitution of stolen goods , upon conviction of the thief which is made at the sessions or assises , on the statute of h. . . noy rep . . resummons . resummons is a second summons of a man to answer an action , where the first summons is defeated by the demise of the king , or such other cause . and of this see coke , lib. . fol. . b. also if a terr-tenant returned upon a scire facias , or defendant in another action plead non-age , and the plea stays until , &c. when he comes of full age , the plaintiff , upon a suggestion , may have a scire facias or resummons : and so when a plea is staid by pleadiny protection , excommunication , or such other disability . resumption . resumption is a word used in the statute of h . c. . and is there taken for the taking again into the kings hands such lands or tenements as upon false suggestion or other error he had made livery of to an heir , or granted by patent to any man. retraxit . retraxit is the preterperfect tense of retraho , to pull back ; and is , when the party plaintiff or demandant comes in proper person into the court where his plea is , and saith he will not proceed any farther in the same , &c. this will be a bar to the action for ever . reve , or reeve . reeve is an officer more known in ancient time then at this day : for almost every mannor had then a reeve , and yet still in many copyhold-mannors ( where the old custom prevails ) the name and office is not altogether forgotten . and it is in effect that which now every bayliff of a mannor practises , although the name of bayliff was not then in use amongst us , being siuce brought in by the normans . but the name of reeve , anciently called greeve , ( which particle ( ge ) in continuance of time was altogether left out and lost ) came from the saxon word geresa , which signifies a ruler : and so indeed his rule and authority was large within the compass of his lords mannor , and among his men and tenants , as well in matters of government in peace and war , as in the skilful use and trade of husbandry . for as he did gather his lords rents , pay reprises or duties issuing out of the manor , set the servants to work , fell and cut down trees to repair the buildings and inclosures , with divers such like , for his lords commodity ; so also he had authority to govern and keep the tenants in peace , and , if need required , to lead them forth to war. reversion . reversion of a land is a certain estate remaining in the lessor or donor , after the particular estate and possession conveyed to another by lease for life or years , or gift in tail . and it is called a reversion in respect of the possession separated from it : so that he that hath the one , hath not the other at the same time ; for in one body at the same time there cannot be said a reversion , because by the uniting the one of them is drowned in the other . and so the reversion of land is the land it self when it falls . ribaud . ribaud seem to be sturdy vagabonds . rot. par. e. . . right , & right of entrie . right , and right of entry . see in droit . riot . riot is , when three ( at the least ) or more do some unlawful act ; as to beat a man , enter upon the possession of another , or such like . robbery . robbery is , when a man takes any thing from the person of another feloniously ; although the thing so taken be to the value but of a penny , yet it is felony , for which the offendor shall suffer death . rood of land. rood of land is a certain quantity of land containing the fourth part of an aere . anno eliz. c. . rout. rout is , when people assemble themselves together , and after proceed , or ride , or go forth , or move by the instigation of one or more , who is their leader . this is called a rout , because they move and proceed in routs and numbers . also where many assemble themselves together upon their own quarrels and brawls ; as if the inhabitants of a town will gather themselves together to break hedges , walls , ditches , pales , or such like , to have common there , or to beat another that hath done them a common displeasure , or such like ; that is a rout , and against the law , although they have not done or put in execution their mischievous intent . see the stat. mar. c. . s. sac , or sake . sake is a plea and correction of trespass in your court ; because sake in english is encheson in french , and sake is put for sick . see keloway in his cases incerti temporis , f. . a. that the privilege called sake is , for a man to have the amerciaments of his tenants in his own court. sacrilege . sacrilege is , when one steals any vessels , ornaments , or goods of holy church , which is felony , cro. , . salary . salary is a word often used in our books , and it signifies a recompence or consideration given a man for his pains bestowed upon another mans business . and it is so called , as pliny says in the book of his nat. hist . cap. . because it is as necessary for a man as salt , and makes his labor relish as salt doth his meat . sanctuary . sanctuary is a priviledged place by the prince for the safeguard of mens lives who are offendors , being founded upon the law of mercy , and upon the great reverence , honor and devotion which the prince bears to the place whereunto he grants such a privilege ; which was heretofore so great , that the princes have granted the same in cases of treason committed against themselves , murder , rape , or other crime whatsoever . hereof see stamf. pl. of the crown , l. . c. . satisfaction . satisfaction is , when a defendant hath paid a debt or dammages recovered against him , it behoveth him to have satisfaction , to be entred upon the record of the iudgment . sarpler . sarpler is , a quantity of wool , which in scotland is called serplath , and contains stone ; and with us in england a load of wool contains ( by the opinion of some ) fourscore tod , and every tod two stone , and every stone fourteen pounds ; and that a sack of wool is in common account equal with a load , and a sarpler the one half of a sack. scandalum magnatum . scandalum magnatum is an evil report invented or dispersed to the prejudice or slander of any great personage or officer of the realm . the punishment of which is enacted by divers statutes , viz westm . . c. . r. . c. . & r. . c. . scavage . scavage or shewage is a toll exacted by the mayors , sheriffs and bayliffs of cities and towns corporate , for wares or merchandise shewed to be sold within their precincts or jurisdiction : which exaction , being against the priviledge of the kings subjects , was prohibited by a statute made in h. . c. . see h. . f. . a. and see the statute of h. . c. in the end thereof . the mayor , &c. of london brought debt for this duty , by these words , pro supervisu a ꝑcionis h. , c. . b. r. roll . scire facias . scire facias is a writ judicial going out of the record , and lies where one hath recovered debt or dammages in the kings court , and sues not to have execution within the year and the day ; then after the year and the day he shall have the said writ to warn the party : and if the party come not , or if he come and say nothing to discharge or stay the execution , then he shall have a writ of fieri facias directed to the sheriff , commanding him to levy the debt or dammages of the goods of him that hath lost . the writ of fieri facias lies within the year , without any scire facias sued . also if the summ of the same debt or dammages may not be levied of the goods of him that hath lost them , he may have a writ of elegit , commanding the sheriff to deliver him the one half of his lands and goods , except his oxen and implements of plow . when one hath recovered debt or dammages in an action personal , ( where the preces is a capias ) he may have another writ of execution , called a capias ad satisfaciendum , to take the body of him that is so condemned , which shall be committed to prison , there to abide without bail or mainprise , till he hath satisfied the party . and when one hath iudgment to recover any lands or tenements , he shall have a writ called habere facias seisinam , directed to the sheriff , commanding him to deliver to him seisin of the same land so recovered . see more of that in the titles fieri facias , and execution . the writ abovesaid is given by the statute of westm . . cap. . but there are also other manner of scire facias ; scil. upon audita querela , writs of error as well to hear errors , as wherefore the plaintiff ought to have execution , against terrtenants upon iudgments , and the like . scot. scot is , to be quit of a certain custom , as of common tallage made to the use of the sheriff or bayliff . scotale . scotale is an extortion prohibited by the statute of charta de forresta , cap. . and it is where any officer of the forrest keeps an ale-house , to the intent that he may have the custom of the inhabitants within the forrest , to come and spend their mony with him , and for that he shall wink at their offences committed within the forrest . second deliverance . second deliverance , is a writ made by the filacer , to deliver cattle distreined , after the plaintiff is non-suit in replevin , plow . com. . dyer . se defendendo . se defendendo is a plea for him that is charged with the death of another , saying , that he was driven unto that which he did , in his own defence . stamf. pl. cor. lib. . cap. . seigniory in gross . seigniory in gross . see lord in gross . selion . selion comes of the french sellon ; that is , the ground rising between two furrows , in latine parca a ridge ; and it is not of any certain quantity , but sometimes more , and sometimes less . and therefore crompton in his jurisdiction of courts , fol. . saith , that a selion cannot be demanded , because it is uncertain . seneshal . seneshal ( steward ) is a french word borrowed of the germans , and signifies one that hath the dispensing of iustice in some particular cases : as stamf. pl. of the cor. fol. . b. the high steward of england , or of the affairs of a family , as cromptons jurisdiction , fol. . steward of the kings houshold , and e. . stat. . cap. . and others . he is also a learned man appointed by the lord of a mannor to hold courts leet or baron . co. inst . . . sequestration . sequestration is the setting aside of a thing in controversie from the possessson of both those that courend for it . it is used also for the act of an ordinary , when no man will meddle with the goods and chattels of one deceased , as & m. dyer fol. . b. & eliz. dyer . a. and so it is used also for the gathering of fruits and profits of a benefice void , for the use of the next incumbent , by the statute of h. . cap. . knights service . to hold by knights service is , to hold by homage , fealty , and escuage ; and it draws to it ward , marriage , and relief . and note , that knights service is service of lands or tenements , to bear arms in war in defence of this realm ; and it owes ward and marriage , by reason that none is able , nor of power , nor may have knowledge to bear arms , before he be of the age of xxi . years . and to the end that the lord shall not lose that which of right he ought to have , and that the power of the realm be nothing weakned , the law wills , because of his tender age , that the lord have him and his lands in his ward till full age , that is to say , xxi years . but see the stat. car. . cap. . whereby all tenures are turned into free and common soccage . sessions . sessions is a sitting of iustices in court upon their commission : as the sessions of oyer and terminer , stamf. pl. cor. fol. . quarter sessions , otherwise called general sessions or open sessions , el. c. . opposite whereunto are privy or especial sessions , which are procured upon some especial occasion , for the speedy expedition of iustice , cromp. justice of p. fol. . what things are enquirable in general sessions , see cromp. as above , and fol. . petit sessions , or statute sessions , are held by the high constables of every hundred , for the placing of servants . an. . el. cap. . in the end , severance . severance is the singling of two or more that are joyned in a writ : as if two are joyned in a writ de liberate probanda , and the one afterward is non-suited , in this case seveance is permitted , so that notwithstanding the nonsuit of the one , the other may alone proceed . f. n. b. fol. . see of this brook , tit . severance & summons , fol. . for it is harder to know in what cases severance is permitted , then what it is . there is also severance in assise , old book of entries , fol. . col . and severance in attaint , fol. . col . . and severance in debt , fol. . col . . and severance in quare impedit , coke , l ● b. . fol. . sewers . sewers seems to be a word compounded of two french words , seoir , to sit , and eau , water , for that the sewers are commissioners that sit , by virtue of their commission and authority grounded upon divers statutes , to enquire of all nusances and offences committed by the stopping of rivers , erecting of mills , not repairing of banks and bridges , &c. and to tax and rate all whom it may concern , for the amending of all defaults which tend to the hindrance of the free passage of the water through her old and ancient courses . see the statute of h. . cap. . & h. . cap. . for the form of their commission . shack. shack is a peculiar name of common used in the county of norfolk , and cattel go to shack , is as much to say as to go at liberty , or to go at large . and this common called shack , which in the beginning was but in nature of a feeding , because of vicinage , for avoiding of suits , in some places within this county is by custom altered into the nature of common appendant or appurtenant , and in some places it retains its original nature . coke , lib. . fol. . shewing . shewing is , to be quit with attachment in any court , and before whomsoever , in plaints shewed , and not allowed . soc. soc is : suit of men in your court , according to the custom of the realm . soccage . to holo in soccage is , to hold of any lord lands or tenements , yeelding him a certain rent by the year for all manner of services . to hold by soccage is not to hold by knights service , nor doth ward , marriage , or relief belong to it : but they shall double once their rent after the death of their ancestor , according to that that they be wont to pay to their lord. and they shall not be above measure grieved , as it appears in the treatise of wards and relief . and note well , that soccage is in manners ; that is to say , soccage in free tenure , soccage in ancient tenure , and soccage in base tenure . soccage in free tenure is , when one holds of another by fealty and certain rent for all manner of services , as is before said . and of all lands holden in soccage the next of kin shall have the ward , to whom the heritage may not discend till the age of xiv years : that is to say , if the heritage come by the part of the father , they of the part of the mother shall have the ward ; and contrariwise . if the gardian in soccage make waste , he shall not be impeached of waste , but he shall yield accompt to the heir when he shall come to his full age of years ; for which see the statutes of marlebr . ca. . soccage of ancient tenure is that where the people held in ancient demesne , who were wont to have no other writ than the writ of right close , which was determined according to the ● ustome of the mannor , and the monstraverunt , to discharge them when their lord distrains them to do other services than they ought . this writ of monstraverunt ought to be brought against their lord : and these tenants hold all by one certain service , and are free tenants of ancient demesne . soccage in base tenure is , where a man holds in ancient demesne , that may not have the monstraverunt , and for that it is called the base tenure . sockmans . sockmans are the tenants in ancient demesne , that held their lands by soccage , that is , by service with the plow , and therefore they are called sockmans , which is as much to say , as tenants or men that hold by service of the plow , or plow-men : for sok signifies a plow . and these sockmans , or tenants in ancient demesne , have many and divers liberties given and granted them by the law , as well those tenants that hold of a common person , as those that hold of the king in ancient demesne ; as namely to be free from paying toll in every market , fair , town and city , throughout the whole realm , as well for their goods and chartels that they sell to others , as for those things that they buy for their provision . and thereupon every of them may sue to have letters patents under the kings seal , directed to his officers , and to the mayors , bayitffs , and other officers in the realm , to suffer them to be toll-free : to be exempt from leets and sheriffs turns : also to be quit of pontage , murage , and passage ; as also of taxes and tallages granted by parliament , except that the king tax ancient demesne , as he may at his pleasure , for some great cause : to be free from payments toward the expences of the knights of the shire that come to the parliament . and if the sheriff will distrain them or any of them , to be contributary for their lands in ancient demesne , then one of them , or all , as the case requires , may sue a writ directed to the sheriff , commanding him that he do not compel them to be contributary to the expences of the knights . and the same writ doth command him also , that if he have already distrained them therefore , that he redeliver the same distress . also that they ought not to be impannelled , nor put in iuries and enquests in the country out of their mannor or lordship of ancient demesne , for the lands that they held there , ( except that they have other lands at the common law , for which they ought to be charged . ) and if the sheriff do return in pannels , then they may have a writ directed to him , de non ponendis in assisis & juratis : and if he do the contrary , there lies an attachment against him . and so it is also if the bailiffs of franchises , that have return of writs , will return any of the tenants which hold in ancient demesue in assises or iuries . sodomy . sodomy , in the indictment for this offence it is said , rem veneream habuit & peccatum illud sodomiticum ( inter christianos non nominandum ) felonice commisit . spoliation . spoliation is a suit for the fruits of a church , or for the church it self ; & it is to be sued in the spiritual court , and not in the temporal . and this suit lies for one incumbent against another , where they both claim by one patron , and where the right of the patronage doth not come in question or debate . as if a parson be created a bishop , and hath dispensation to keep his benefice , and afterward the patron presents another incumbent , which is instituted and inducted : now the bishop may have against that incumbent a spoliation in the spiritual court , because they claim both by one patron , and the right of the patronage doth not come in debate , and because the other incumbent came to the possession of the benefice by the course of the spiritual law , that is to say , by institution and induction , so that he hath c ● lour to have it , and to be parson by the spiritual law : for otherwise , if he be not instituted and inducted &c. spoliation lies not against him , but rather a writ of trespass , or an assise of novel disseisin , &c. so it is also where a parson who hath a plurality doth accept another benefice , by reason whereof the patron presents another clerk , who is instituted and inducted : now the one of them may have spoliation against the other , and then shall come in debate whether he has a sufficiene plurality or not . and so it is of deprivation , &c. the same law is , where one saith to the patron , that his clerk is dead , whereupon he presents another : there the first incumbent , who was supposed to be dead , may have a spoliation against the other . and so it is in divers other like cases , whereof see fitz. natura br. f. . g. &c. stablestand . stablestand is a term of the forrest laws , when one is sound standing in the forrest with his bow bent ready to shoot at any deer , or with his grey-hounds in a lease ready to slip . see manw. forest laws . cap. . fol. . b. stallage . stallage signifies money paid for pitching stalls in fairs or markets , or the right of doing it . standard . standard see estandard . stannary . stannary are courts by ancient custom held in cornwal for suits concerning the trade of tin. statute-merchant . to hold by statute-merchant is , where a man acknowledges to pay mony to another at a certain day before the mayor , bailif , or other warden of any town that hath power to make execution of the same statute , and if the obligor pay not the debt at the day , and nothing of his goods , lands or tenements may be found within the ward of the mayor or warden aforesaid , but in other places without , then the recognisee shall sue the recognisance and obligation with a certification to the chancery under the kings seal , and he shall have out of the chancery a capias to the sheriff of the county where he is , to take him , and to put him in prison , if he be not a clerk , till he have made satisfaction for the debt . and one quarter of a year after he is taken , he shall have his land delivered to himself , to make gree to the party for the debt : and he may sell his land while he is in prison , and his sale shall be good . and if he do not make satisfaction within a quarter of a year , or if it be returned that he is not found , and if he be not a clerk , then the recognisee may have a writ out of the chancery , called extendi facias , directed to any sheriff , to extend his lands and goods , and to deliver the goods to him , and to scise him in his lands , to hold them to him , his heirs and assigns , till the debt be levied or payed ; and for that tune he is tenant by statute-merchant . note , that in a statute-merchant the recognisee shall have execution of all the lands which the recognisor had the day of the recognisance made , and any time after , by force of the same statute . and when any waste or destruction is made by the recognisee , his executors , or him that hath his estate , the recognisor or his heirs shall have the same law , as is before said of the tenant by elegit . if tenant by statute-merchant hold over his term , he that hath right may sue against him a venire fac ' ad computandum , or else enter immediately , as upon tenant by elegit . see the statute e. . and of acton burnel , and e. . de mercatoribus starr-chamber . starr-chamber was an high court held in the star-chamber at westm . before the king , peers and iudges , abolished per stat. car. cap. . sterbrech . sterbrech , alias strebrech , is the breaking , obstructing , or or making less of a way . stilyard . stilyard is a word used in the statute of h. . chap. . where the ha ● se-merchants are called the merchants of the sti yard , which is a place in london where these merchants or their brotherhood had their thode . and the house is said to be so called , because bullt upon a court-yard near the thames , where steel was wont to be much sold . sub poena . sub poena is the name of a writ made in divers courts of law and equity ; viz. in chancery , and all other courts , to summon witnesses , and in that court and in the exchequer in law and equity , and in the common pleas upon informations , qui tam , &c. to summon defendants and in the crown office upon informations . suffragan . suffragan is a word used in the statut of h. . cap. . and signifies a titular bishop appointed to aid and assist the bishop of the diocess in his spiritual function . and he is called suffraganeus in latin , because by his suffrage ecclesiastical causes are to be adjudged . suggestion . suggestion , is an information drawn in writing , shewing cause to have a prohibition , which is left in court , and is mentioned in the statute e. . cap. . sumage . sumage seems to be toll for carriage on horseback . cro. jurisd . f. . summons ad warrantizandum , &c. summons ad warrantizandum , and sequatur sub suo periculo : see of them after in the title voucher . supercargo , ou supracargo . supercargo , ou supracargo , is a factor or agent which goes with a ship beyond the seas , by order of the owner of the wares therein , and disposes thereof : and the master of the ship is obliged to perform the orders of such factor or supereargo . supersedeas . supersedeas is a writ that lies in divers cases , as appears by f. n. b. f. . a. but it is always a command to stay some ordinary proceedings in law , which ought otherwise to proceed . supplicavit . supplicavit is a writ issuing out of the chaucery , directed to the sheriff and some iustices of the peace in the county , or to one or more iustices without the sheriff , for taking surety of such a one as it is prayed against , that he should keep the peace : and this is by the statute of e. . c. . see f. n. b. f. . c and see the stat. jac. c. . sur cui in vita . sur cui in vita is a writ that lies for the heir of an inheritrix , whose husband aliened the inheritance of his wife , and the wife died before she recovered in a cui in vita . see for this f. n. b. . c. surplusage . surplusage comes of the french surplus , that is an overplus , and signifies in the law an addition of more then needs , which sometimes is the cause that a writ shall abate , but in pleading many times it is absolutely void , and the residue of the plea shall stand good . surrejoynder . surrejoynder is an answer to the defendants rejoynder , or a second inforcing of the plaintiffs declaration . surrender . surrender is the consent of a particular tenant , that he in the reversion or the remainder shall presently have the possession . and this is either surrender in deed by an actual yielding up of the estate ; or in law , by the taking of the new lease , or such other act . see of this , perkins c. . also it is an act done to the lord of a mannor , or his steward , of a copy-hold estate , or done by special custom of some mannors to two copy-hold tenants of mannors , which surrender , ought to be presented at the next court baron . swainmote . swainmote , or swannimote , is a court held thrice in a year within a forrest , by the statute of charta de foresta , c. . for all the free-holders of the forrest , for so much the etymology of the word imports ; mote in the norman speech signifying a court , and swain in the saxon a charterer , or free-holder : so that swannimore is the court of the free-holder . see of this manwoods forrest laws , cap. . f. , &c. at large . swainmote , in this court , presentments of offences done to the forrest or game are made ▪ given into the iustices in eyre . syb & som. syb & som , i. peace and security . l. l. eccles. canuti regis , c. . symony . symony is an unlawful contract made to have a man presented to a rectory or vicarage , which is prohibited by stat. eliz. cap. . t. fee-tail . to hold in the tail is , where a man holds certain lands or tenements to him and to his heirs of his body begotten . if the land be given to a man and to his heires males , and he hath issue male , he hath fee-simple ; which was adjudged in parliament . but where lands are given to a man and to his heirs males of his body begotten , then he hath fee-tale , and the issue female shall not inherit , as appears in the year of e. . in an assise e. . . fee-tail is , where the land is given to a man and the heirs of his body begotten ; and he is called , tenant in taile general . if lands are given to the husband and wife , and the heirs of their two bodies begotten , then the husband and the wife are tenants in tail especial . and if one of them die , he that survives is tenant in tail after possibility of issue extinct ; and if he make waste , he shall not be impeached for it . see littleton . but if the king give lands to a man & to his heires males , and the donee dies without issue male , then the cousin collateral of the donee shall not inherit , but the king shall re-enter : and so it was adjudged in the exchequer-chamber , h. . in an information made against the heir of sir t. lovel knight . tail after possibility . to hold in the tail after possibility of issue extinct is , where land is given to a man and his wife , and the heirs of their two bodies engendred , and one of them overlives the other without issue between them begotten ; he shall hold the land for term of his own life , as tenant in the tail after possibility of issue extinct : and notwithstanding that he do waste , he shall never be impeached of it . and if he alien , he in the reversion shall not have a writ of entry in consimili casu , but he may enter , and his entry is lawful , by r. thorpe , chief justice , e. . . & e. . . tales . tales is a supply of men impannelled upon a iury or inquest , and not appearing , or at their appearance challenged for the plaintiff or defendant as not indifferent , and in this case the iudge upon petition grants a supply to be made by the sheriff , of some nien there present , equal in reputation to those that are impanneled : and hereupon the very act of supplying is called a tales de circumstantibus . this supply may be one or more , and of as many as shall either make default , or else be challenged by each party . stamf. plac. cor. l. . c. . howbeit he that hath had one tales , either upon default or challenge , though he may have another , yet he may not have the latter to contain so many as the former : for the first tales ought to be under the number of the principal pannel , except in a cause of appeal , and so every tales less then other , until the number be made up of men present in court , and such as are without exception to the party or parties . see stamford in the place before , where you may find some exceptions to this general rule . see brook , f. . and coke , l. . f. . bewfages case . talwood . talwood is a term used in the statutes of & h. c. . and e. . c. . and eliz. cap. . and signifies such wood as is cut into shore billets , for the sizing whereof those statutes were made . tax and tallage . tax and tallage are payments , as tenths , fifteens , subsidies , or such like , granted to the king by parliament . the tenants in ancient demesne are quit of these taxes and tallages granted by parliament ; except the king to tax ancient demesne , as he may when he thinks good for some great cause . see ancient demesne . tenant paravail . tenant paravail . see paravail . tender . tender , is an act done to save a penalty of a bond , and of mony for rent or contract before distress or action brought , and where it may be pleaded , and where refusal is , peremptory . vide coke , institut . , , . & uncore prist . tenure in capite . tenure in capite is , where any hold of the king as of his person being king , and of his crown , as of a lordship by it self in gross , and in chief above all other lordships : and not where they hold of him as of any mannor , honor , or castle , except certain ancient honors ; which appears in the exchequer . see the stat. car. . cap. . term of years . to hold for term of years is but a chattel in effect : 〈◊〉 no action is maintainable against the termour for recovery of the free-hold , no free-hold being in him . a lease for term of years is a chattel real , and all goods which are removeable are chattels personal . testament . testament is thus defined in plowdens commentaries ; a testament is a witness of the mind , and is compounded of these two words , testatio and mentis , which so signifie . truth it is , that a testament is witness of the mind , but that it is a compound word , aulus gelius , lib. . cap. . doth deny to an excellent lawyer , servius sulpitius , and saith , it is a simple word , as are these , calceamentum , paludamentum , paviamentum , and divers such like . and much less is agreeamentum , a compound word of aggregatio and mentium , as is said before in the title of agreement ; for there is no such latine word , simple or compound : but it may nevertheless serve well for a law-latine word . and therefore thus it may better be defined ; a testament is the true declaration of our last will , in that we would to be done after our death , &c. of testaments there are two sorts , namely , a testament in writing , and a testament in words , which is called a nuncupative testament ; which is , when a man being sick , and for fear lest death , want of memory , or speech , should come so suddenly upon him , that he should be prevented , if he staid the writing of his testament , desires his neighbors and friends to bear witness of his last will , and then declares the same presently by words before them , which after his decease is proved by witnesses , and put in writing by the ordinary , and then stands in as good force as if it had at the first in the life of the testator been put in writing : except onely for lands , which are not devisable , but by a testament put in writing in the life of the testator . thanus . thanus is a word which sometimes signifies a noble-man , sometimes a free-man , a magistrate , an officer or minister , lambert in the word thanus skene saith , it is a name of dignity , and appears to be equal with the son of an earl. and thanus was a free-holder , holding his lands of the king : and a man taken with the manner accused of larceny , no sufficient proof being brought against him , must purge himself by the oath of men , or thanes . the kings thanage signifies a certain part of the kings lands or property , whereof the rule and government appertains unto him , who therefore is called thanus : for the kings demains , and the kings thanage signifies one and the same thing . theftbote . theftbote is , when a man takes any goods of a thief , to favor and maintain him : and not when a man takes his own goods , that were stoln from him , &c. the punishment in ancient time of theftbote was of life and member : but now at this day stamford saith it is punished by ransom and imprisonment . but enquire farther , for i think it is felony . them. them , that is , that you shall have all the generations of your villains , with their suits and cattel , wheresoever they shall be found in england , except that if any bond-man shall remain quiet one year and a day in any priviledged town , so that he shall be received into their communalty or guild , as one of them , by that means he is delivered from villenage . tithes . tithes . see dismes . title . title is , where a lawful cause is come upon a man to have a thing which another hath , and he hath no action for the same ; as title of mortmain , or to enter for breach of condition . title of entry . title of entry is , when one seised of land in fee makes a feoffment thereof upon condition , and the condition is broken : after which , the feoffor hath title to enter into the land , and may so do at his pleasure , and by his entry the free-hold shall be said to be in him presently . and it is called title of entry , because he cannot have a writ of right against his feoffee upon condition , for his right was out of him by the feoffment , which cannot be reduced without entry , and the entry must be for the breach of the condition . toft . toft is a place wherein a house once stood , but is now all fallen or pulled down . tol , or tolne . tol , or tolne , is most properly a payment used in cities , towns , markets , and fairs , for goods and cattel brought thither to be brought and sold : and is always to be paid by the buyer , and not by the seller , except there be some custom otherwise . there are divers other tols ; as turn tol , which is where tol is paid for beasts that are driven to be sold , although they be not sold indeed . tol travers is , where one claims to have a half peny , or such like tol , of every beast driven over his ground . through toll is , where a town prescribes to have certain toll for every beast that goes through their town , or for every score or hundred : which seems not to be so unreasonable a prescription or custome as some have thought , though it be through the kings high-way , ( as they call it ) where every man may lawfully go ; if there be one thing for another : as if there be a bridge , or such like commodity , provided at the cosls and charges of the town , for the ease of travellers that drive that way , whereby their iourney is either shortned or bettered , why then may not toll be lawfully and with good reason demanded of them ? &c. but divers citizens and townsmen are free from paying toll , by grant of the king or his ancestors , or do claim the same by prescription or custom . so also spiritual persons and religious men were quit of paying toll for their goods and merchandizes bought and sold , &c. but now the statute of h . cap. . wills , that they shall not merchandize . also tenants in ancient demesne ought to be quit throughout the whole realm of paying tol , as appears before in the title sockmans . and in all cases where tol is demanded of them that should go , buy , and sell toll-free , there the party or parties grieved may have a writ de essendo quietum de tolonio , directed to him or them that so demand toll contrary to the grant of the king or his progenitors , or contrary to custom or prescription . tolt . tolt comes from the latine tollo , and is a writ by which a cause depending in a court-baron may be from thence removed into the county court before the sheriff . see of this fitz. nat. brev. fol. . f. and old natura brevium , fol. . a. tonnage . tonnage is a custom or impost paid unto the king for merchandize carried out or brought in in tuns , or such like vessels , according to a certain rate in every tun ▪ and of this you may read in the statutes of e. . cap. . h. . c. . e. . c. and jac. c. . but especially car. . cap. . totted . totted is a term used in the statute of e. . c. . and signifies a note to be made in the estreat-roll that goes out of the exchequer to the sheriff , of all such debts as are paid unto the sheriff , to that they be not again demanded of the party , nor the king deceived . see the statute . transcript . transcript , this most commonly signifies the certification of a record upon a writ of error from the kings bench in ireland unto the k. b. in england , or from that court unto the exchequer chamber , for the record it self is not certified , but a transcript : but out of c. b. and other inferior courts , the record is quite taken away by the writ of error , and remains in b. r. co. ent. . , . travers . travers sometimes signifies to deny , sometimes to overthrow or undo a thing done . for the first , westm . p. . sect . . speaking of an answer to a bill in the chancery , saith , it is that which the defendant pleads or says in bar to avoid the plaintiffs bill or action , either by confession and avoiding , or by denying and traversing the material points of it : and again , sect. a replication is the plaintiffs speech or reply to the defendants answer , which must affirm and pursue his bill , and confess , and avoid , deny , or traverse the defendants answer ; and the formal words of this travers are , without that , ● in latine , absque hoc . see kitch . fol. . the other signification is found in stamf. prerog . cap. . the whole chapter , who speaking of traversing an office , saith , that it is nothing else , but to prove that an inquisition taken of goods or lands by the escheator in defective , and untruly mads . so traversing an indictment is , to take issue upon the chief matter of it , which is nothing else but to make contradiction or deny the point of the indictment : as in a presentment against a for a high-way overflows with water , for default of scowring of a ditch which he and they whose estate he hath in certain land there have used to scowr and cleanse , a may traverse either the matter , that is to say , that there is not any high-way there , or that the ditch is sufficiently scowred ; or otherwise he may traverse the cause , that he hath not the land , &c. or that he and those whose estate , &c. have used to scowr the ditch , lamb. eiren. lib. . pag. . of travers see the whole chapter , kitch ● ol . . and the old book of entries , the word travers . treason . treason is in two manners , that is to say , grand treason , and petit treason , as it is ordai● ed by the statutes . and therefore look the statutes , and stamford , lib. . cap. . treasure trove . treasure trove ( i. treasure found ) is , when any money , gold , silver , plate , or bullion is found in any place , and no man knows to whom it belongs ; then the property thereof appertains to the king. but if any mine of metal be found in any ground , that alway pertains to the lord of the soil , except it be a mine of gold or silver , which shall be alway to the king , in whose ground soever it be found . trespass . trespass is a writ or action of trespass , whereof there are two sorts . the one vicountiel , so called , because it is directed to the sheriff , and is not returnable , but to be determined in the county : the form whereof differs from the other , because it hath not these words , quare vi & armis , &c. fitz n. b. fol. . g. the other is directed to the sheriff also but is returnable in the king bench or common plea , and hath always in it their words , quare vi & armis , or else it shall abate , as it appears in fitz. n. b. fol. . h : if it be not a trespass upon the case , and then the words vi & armis are left out , and in lieu thereof the writ shall say in the end of it , contra pacem , &c as appears in fitz. nat. brev. fol . c. and yet in some cases trespass upon the case shall be vi & armis also , though not in the point of the action , or the causa causata , yet in the conveyance to the action , or the causa causante , as is well distinguisht in the count de salops case , in coke lib. . fol. . b. trial. trial , there are many kinds of it : as of matters in fact , which shall be tried by the iurors ; matters in law , by the iustices ; matters of record , by the record it self . a lord of parliament , upon an indictment of treason or felony , shall be tried by his peers , without any oath , upon their honors and allegiance ; but in appeal at the suit of any subject they shall be tried per probos & legales homines . if ancient demesne be pleaded of a mannor , and denied , this shall be tried by the record of the book of dooms-day in the exchequer . an apostata shall be certified by the abbot or other religious governor to whom he owed obedience . general bastardy , excommengement , lawfulness of marriage , profession , and divers other matters ecclesiastical , shall be tried by the bishops certificate . and a great number of other trials there are , whereof see coke lib . the case of the abbot of scrata marcella , fol. . by witnesses de morte viri in dower , where the tenant pleads , that the husband of the demandant is alive . ra ● en. . tronage . tronage is a certain toll taken for weighing . westm . . cap. . & edw. . trover . trover is an action which a man hath against another , that having found any of his goods , refuses to deliver them upon demand . see the old book of entries , word trover . tumbrel . tumbrel , see in the title cuckingstool ; and see the statute of h. . cap. . for the use of it . turbary . turbary ( from the old latine word turba , which was use ● for a turf ) is an interest of digging turfs upon a common : and you shall find an assise brought of such a common of turbary , in ass . pl. . & e. . fol. . b. sheriffs turn . sheriffs turne , is a court of record in all things that pertain to the turn , and it is the kings leet through all the county , and the sheriff is iudge . and whosoever hath a leet , hath the same authority within the precinct as the sheriff hath within the turn . this court is to be kept twice in every year , once after easter , and again after michaelmas , and that within one moneth after each feast , anno edw. . cap . from this court are exempted only archbishops , bishops , abbots , priors , earls , barons , all religious men and women , and all such as have hundreds of their own to be kept . this court is appertaining and incident to the office of the sheriff , and ought not to be reserved therefrom ; and the sheriff is to appoint clerks under him in this court , such as he will at his peril answer for : but he cannot prescribe to take any thing for the keeping of his turn , because he is an officer removeable . see coke , l. . . & l. . . and daltons book of sheriffs , tit . sheriffs turn . v. vacation . vacation . see plenartie . vagabonds . vagabonds , are idle and unprofitable men , punishable by the statute eliz. . & jac. . & . value of marriage . valore maritagii is a writ that lay for the lord against his ward , to recover against him the value of his marriage at his full age , for that he was not married by his lord within age . and this writ lay although the lord never rendered unto the ward any convenient marriage . see palmers case , coke . l. . f. . b. and the stat. car. . c. . venditioni exponas . venditioni exponas , is a iudicial writ directed to the sheriff , to sell goods seised by a fleri facias . venew , or visne . vene ● , or visne , is a term used in the statute of h. . c. . and often in our books , and signifies a place next to that where any thing that comes to be tried is supposed to be done . and therefore for the better discovery of the truth of the matter in fact upon every trial , some of the iury must be of the same hundred , or sometimes of the same parish or neighborhood , in which the thing is supposed to be done , who by intendment may have the best knowledge of the matter . see coke , book , f. . a. arundels case . venire facias . venire facias , it is a process directed to the sheriff , or to the coroners ( if the sheriff be challenged ) to summon a iury to try an issue joined between party and party , or the king and a subject ; and it is also a process upon an audita querela , or upon an indictment in the kings bench , or venire facias ad computandum , against tenant by elegit . verderor . verderor is an officer in the kings forrest , chosen by the free-holders of the county where the forrest is , by a writ directed to the sheriff to do it , as appears by the books of the register , and of the nature of writs : and they are called in latine , viridarli , of the word viridis , in english green , in french verd ; for a great part of their office is touching the verd , to wit , the wood and grass growing in the forrest ; for which see more in the charter and laws of the forrest . verge . verge is the compass about the kings court , their bounds , the iurisdiction of the lord steward , and of the coroner of the kings house , so that he cannot intermeddle in the county forth of the verge , because his office extends not thereunto ; as the coroner of the county cannot intermeddle within the verge , which is exempted out of his office by the common law. and it seems against reason , that their offices and iurisdictions being several , should intermeddle one within the iurisdiction of the other . and this verge seems to be twelve miles . see r. . stat. . c. . f. n. b. f. . britton f. . fleta , l. . c. . coke , l. . f. . h. . c. . verge in another signification is used for a stick or rod by which one is admitted tenant , and holding it in his hand , takes the oath of fealty to the lord of the mannor , and for that cause is called tenant by the verge . see old n. b. f. . & littl. l. . c. . vert or verd. vert comes of the french verd , and signifies with us in the forrest laws every thing that doth grow and bears a green leaf within the forrest : and it is divided into over vert and neather vert. over vert is the great woods , and neather vert is the vnder woods . there is also in forrests a vert called special vert , and that is all trees that grow in the kings own woods within the forrest ; and all trees that grow there in other mans woods , if they be such trees as bear fruit to feed the deer : which are called special vert , because the destroying of such vert is more grievoufly punished then the destruction of other vert is . see manwoods forrest laws , c. . f. . a. vicountiels . vicountiels are farms so called , for which the sheriff pays certain rent to the king , and makes the best profit he can of them . see the stat. & h. . c. . view . view is , when an action real is brought , and the tenane knows not well what land it is that the demandant asks ; then the tenant shall pray the view , that is , that he may see the land which he claims . but if the tenant hath had a view in one writ , and after the writ is abated in misnaming the town , or by ioyntenure , and after the demandant brings another writ against the tenant ; then the tenant shall not have the view in the second writ . view of frank pledge . view of frank pledge ( visus franci plegii ) is the power to hold a turn or leet , in which courts every free-man in ancient time became bound with sureties at the age of fourteen years for his truth to the king and his subjects : and thereupon those courts were called the view of the free pledges , that is , of such free-men as were pledges or sureties one for another . see deciners . vi laica removenda . vi laica removenda is a writ that lies where debate is between two parsons or provisors for a church , and one of them enters into the church with great power of lay-men , and holds the other out with force and arms ; he that is holden out shall have this writ directed to the sheriff , that he remove the power which is within the church : and the sheriff shall be commanded , that , if he find any men there withstanding , he take with him the power of his county , if need be , and arrest the bodies of all those that resist , and put them in prison , so that he have their bodies before the king at a certain day , to answer the contempt . and this writ is returnable , and shall not be granted , before the bishop of the place where such church is , hath certified in the chancery such resisting and force . villain and villainage . to hold in pure villainage is , to do all that that the lord will him command . the division of villainage is , villain of blood , and of tenure . and he is a villain of whom the lord takes redemption to marry his daughter , and to make him free : and it is he whom the lord may put out of his lands or tenements at his will , and also of all his goods and chattels . a sockman is no pure villain , nor does a villain owe ward , marriage , or relief , nor does he any other services real . tenure in villainage shall make no free-man villain , if it be not continued time out of mind : nor shall villain land make a free-man villain , nor free-land make villain free ; except the tenant have continued free beyond the time of memory . but a villain shall make free-land villain by seisin , or by claim of the lord. if a villain purchase land , and take a wife , and alien , and dies before the claim of seisin of the lord , the wife shall be endowed . in case the lord bring a praecipe quod reddat against the alience of his villain ▪ who vouches to warrant the issue of the villain which is villain to the lord , he shall have the voucher . and by protestation the lord may ( notwithstanding he plead with his villain ) save his villain from being infranchised . a bastard shall not be judged villain , but by knowledge in court of record . if debt be due by a lord to a free-man , and he makes two men his executors who are villains to the said lord , and dies , the villains shall have an action of debt against their lord. and notwithstanding that he plead with them , and if he make protestation , they shall not be thereby infranchised ; for that they are to recover the debt to the use of another person , that is to say , their testator , and not to their own use . and if the tenant in dower have a villain who purchases certain land in fee , and after the tenant in dower enters ; she shall have the land to her and her heirs for ever . and the same law is of tenant for term of years of a villain . the lord may rob , beat , and chastise his villain at his will : save only that he ● ay not maim him , for then he shall have an appeal of maihem against him . a villain may have three actions against his lord ; that is to say , an appeal of the death of his ancestor , an appeal of rape done to his wife , and an appeal of miahem . if two parteners bring a writ of niefty , and one of them be nonsuit , the nonsuit of him shall be judged the nonsuit of both , so that if that nonsuit be after appearance , they shall be barred from that action for ever ; for such is the law in favor of liberty . if two have a villain in common , and one of them makes him a manumission , he shall not be made free against both . in a writ de nativo habendo , it behoves that the lord shew how the defendant comes to be privy of the blood of the villain of whom he is lord , &c. and if he nor any of his aucestors were seised of any of his blood , he shall not gain by his action , if the villain have not acknowledged himself in court of record to be his villain . in a writ of niefty may not be put more niefs then two ; and this was first introduc'd in hatred of bondage . but in a writ de libertate probanda , may be put as many niefes as the plaintiff will. if the villain be fled into ancient demesne of the king , or other town priviledged , within a year and a day the lord may seise him ; and if he dwell in the same town , or other place franchised by a year and a day , without seisin of the lord , he hath no power to seise him after , if he go not out of the foresaid franchise . some are villains by title , of prescription , that is to say , that all their blood have been villains regardants to the mannor of the lord from time out of mind . and some are made villains by their confession in a court of record . also the lord may make a manumission to his villain , and enfranchise him for ever . if a villain bring any action against his lord , other then an appeal of maihem , and the lord without protestation make answer to it , by this the villain is made free . also if a villain purchase land , and hath goods , and sell the goods and lands before any entry or seisin made by the lord , the sale is good . but the king , lord of a villain , in such case may enter and seise the land after such sale made : for no time runs against the king. note , that this title and tenure are abolished by the statute of car. . r. villanous judgement . villanous judgment is that which is given upon an indictment of conspiracy , viz. that the party found guilty shall lose the benefit of the law , shall never more be sworn in iuries or assises , nor admitted to give any testimony cise where : and if he have to do in the kings courts , he shall come by attorney , and not in person : that his lands , goods and chattels shall be seised in the kings hands , and estreaped , if he find not the more favor , and his trees digg'd up , and his body imprisoned . see e. . fol. . b. & ass . pl. . virgata terrae . virgata terrae . see yard-land . viscount . viscount is either the name of a degree or state of honour under an earl , and above a baron ; or else the name of a magistrate and an officer of great authority , whom we commonly call ( sheriff , ) or , to speak more truly , ( shire reve , ) and was at the first called ( shire gereve ) that is , the keeper of the shire , or the reeve or ruler of the shire ; for ( gereve ) is derived of the saxon word gerefa , i. a ruler . and hereof comes ( portreve , or portgreve ) a name in old time given to the head officer of a town , and signifies the ruler of the town ; for that ( port ) coming of the latine word ( portus ) signifies a port-town , and ( greve ) being derived as aforesaid , signifies a ruler : so that portgreve , or , as we now shorter speak , a portreve , is the ruler of the town . and thus was the head officer or governor of the city of london long since ( before they had the name of mijor or bayliffs ) called , as it doth appear in divers old menuments , but chiefly in the saxon charter of william the conquerour , which begins thus : william the king greeteh william the bishop , and godfrey the portreve , and also the citizens that in london be , &c. so also they of germany ( from whom we and our language first came ) call one governor burgreeve , another margreeve , and another lansgreeve , with such like , &c. thus much is said only to shew the right etymon and antiquity of the word ( sheriff ; ) to which officer our common law hath always given so great trust and authority , as to be a special preserver of the peace . and therefore all obligations that he takes to that end , are recognisances in law. he is a iudge of record when he holds the leets or turns , which are courts of record . also he hath the execution and return of writs , and impannelling of iuries , and such like , &c. uncore prist . uncore prist is a plea for the defendant in debt upon an obligation , who being sued because he did not pay the debt at the day , pleads , to save the forfeiture , that he rendred the money at the day and place , and that no body was there to receive it ; and says over , that he is yet ready to pay it . and where a man ought to plead over , that he is yet ready , and where not , see in perkins , sect . , & . & coke book , fol. . a , b , in peyto's case . volunt . volunt is , when the tenant holds at the will of the lessor , or lord : and that is in two manners . one is , when i make a lease to a man of lands , to hold at my will , then i may put him out at my pleasure : but if he sow the ground , and i put him out , then he shall have his corn , with egress and regress till it be ripe , to cut and carry it out of the ground . such tenant at will is not bound to sustain and repair the house , as tenant for years is : but if he make wilful waste , the lessor shall have against him an action of trespass . also there is another tenant at will of the lord , by copy of court-roll , according to the custome of the mannor : and such a tenant may surrender the land into the hands of the lord , according to the custom , to the use of another for life , in fee , or in tail ; and then he shall take the land of the lord , or his steward , by copy , and shall make fine to the lord. but if the lord put out such a tenant , he hath no remedy but to sue by petition . and if such a tenant will implead another of the lands , &c. he ought to enter a plaint in the court , and shall declare in the nature of what writ he will , as the case lies . voucher . voucher is , when a praecipe quod reddat of land is brought against a man , and another ought to warrant the land to the tenant ; then the tenant shall vouch him to warranty , and thereupon he shall have a writ called summoneas ad warrantizandum . and if the sheriff return that he hath nothing by which he may be summoned , then there shall go forth a writ called sequatur sub suo periculo . and when he comes , he shall plead with the demandant . and if he come not , or if he come , and cannot bar the demandant , then the demandant shall recover the land against the tenant , and the tenant shall recover as much land in value against the vouchee ; and thereupon shall have a writ called capias ad valentiam against the vouchee . see more of voucher before , in the title of garranty . uses . uses of land had beginning after the custom of property began amongst men : as where one being seised of lands in fee-simple , made a feoffment to another without any consideration , but only meaning that the other should be seised to his use , and that he himself would take the profits of the lands , and that the feoffee should have the possession and franktenement thereof to the same use , &c. now after this , upon good considerations , and to avoid divers mischiefs and inconveniences , was the statute of an. h. . c. . provided , which unites the use and possession together , so that he who hath the use of the land , hath the possession thereof , according to the vse he hath therein , by virtue of that statute . usurpation . usurpation , is most commonly used when any one presents a rector or vicar to a church without a good title . stat. westm . . cap. . co. . rep. . & rep. . usury . usury is a gain of any thing above the principal , or that which was lent , exacted only in consideration of the loan , be it as well corn , meat , apparel , wares , or such like , as money . and here much might be said , and many cases put concerning vsury , which of purpose i omit : only i wish they who account themselves religious and good christians , would not deceive themselves by colour of the statute of usury , because the statute saith , that it shall not be lawful for any to take above xi . pound in the c. l. for a year , &c. whereby they gather ( though falsly ) that they may therefore take six pounds for the loan of an hundred pounds with a good conscience , because the statute doth after a sort dispense with it ( because it doth not punish such taking . ) for god will have his decrees to be kept inviolable , who saith , lend , looking for nothing thereby , &c. by which words is excluded either the taking of vi . l. v. l. yea or one peny above the principal . but rather let such think , that statute was moved upon like cause that moved moses to give a bill of divorce to the israelites , as namely to avoid a greater mischief , and for the hardness of their hearts . and the statute of jac. cap. . hath expresly ordained , that no word in that law shall be construed and expounded to allow the practice of vsury in point of religion or conscience . by the statute of eliz. c. . the loan of money was at l. per cent. by jac. cap. . at l. per cent. and now by the statute of car. . c. . it is reduced to l. per cent. utlary . utlary is , when an exigent goes forth against any man , to appear in any court to make answer to any action or indictment , and proclamation made in five counties ; then if the defendant appear not , the coroner shall give iudgment that he shall be out of the protection of the king , and out of the aid of the law. by such an utlary in actions personal , the party outlawed shall forfeit all his goods and chattels to the king. and by an utlary in felony , he shall forfeit as well all his lands and tenements that he hath in fee-simple , or for term of his life , as his goods and chattels . also though a man be outlawed , yet if any error or discontinuance be in the suit of the proces , the party shall have advantage thereof , and for such cause the vtlary shall be reversed and adnulled . if the party defendant be over the sea at the time of the vtlary pronounced , that is a good cause of reversal . if an exigent be awarded against a man in one county , where he dwells not , yet an exigent with proclamation shall go forth to the county where he dwells ; or else if he be thereupon outlawed , the utlary may be reversed , as it appears by the statute an & h. c. . and if a man be outlawed in action personal at the suit of another , and after he purchase his chatter of pardon of the king , such charter shall never be allowed , till he hath sued a writ of scire facias to warn the party plaintiff ; and if he appear , then the defendant shall answer him , and bar him of his action , or else make agreement with him . utlaw . utlaw . see waive . utlepe . utlepe signifies the escape of theives . fleta , lib. . cap. . utrum . utrum is a writ that lies when the right of any church is allened and holden in lay-fee , or translated into the possession of any other church , and the alienor dies ; then his successor shall have the said writ , whereof an enquest shall be charged to try whether it be the free alms of the church , or lay-fee . and note well , that none that have covent or common seal may maintain this writ , but a writ of entre sine assensu capitull , for the alienation made by his predecessor . w. wage . wage is the giving security for the performing of any thing : as to wage law , and to wage deliverance , which see before in gage . none wages law against the king , brook , tit . chose en action , num . . see law. waife . waife is , when a thief hath feloniously stolen goods , and being nearly followed with hue and cry , or else overcharged with the burthen or trouble of the goods , for his ease sake and more speedy travelling , without hue and cry , flies away , and leaves the goods or any part of them behind him , &c. then the kings officer , or the reeve or bayliff to the lord of the mannor , ( within whose iurisdiction or circuit they were left ) who by prescription or grant from the king hath the franchise of waife , may seise the goods so waived to their lords use , who may keep them as his own proper goods , except the owner come with fresh suit after the felon , and sue an appeal , or give in evidence against him at his arraignment upon the indictment , and he be attainted thereof , &c. in which cases the first . owner shall have restitution of his goods so stollen and waived . and though , as hath been said , waife is properly of goods stollen , yet it may be also of goods not stollen : as if a man be pursued with hue and cry as a felon , and he flies and leaves his own goods , &c. these shall be taken as goods waived , and forfeit as if they had been stollen . but see foxleys case , coke l. . l. . b. that these are not goods waived , but goods of fugitives , which are not forfeited till it be found before the coroner , or otherwise of record , that he fled for the felony . waive . waive is a woman that is outlawed ; and she is called waive , as left out or forsaken of the law , and not an outlaw , as a man is : for women are not sworn in leets to the king , nor to the law , as men are , who therefore are within the law ; whereas women are not , and for that cause they cannot be said outlawed , insomuch as they never were within it . see fitz. n. b. fol. . a. but a man is called utlaw , because he was once sworn to the law : and now for contempt he is put out of the law , and is called utlaw , as one should say , without benefit of the law. wapentake . wapentake is all one with that which we call hundred , as appears by bract. lib. . tract . . cap. . num . . in the end . lambert , in his explication of saxon words , word centuria , saith , that this word wapentake is more especially used at this day in the countries beyond the river trent : and in the laws of king edward ( by him set forth ) num . . it is most plain in these words , and what the english term hundred , the foresaid counties call wapentake . the statutes an. h. . cap. . and an. h. . cap. . and an. h. . cap. . make mention of stainctife wapentake , and friendless wapentake in craven in the county of york . see roger hoveden , part . poster . annal. fol. . warden . warden is of the same signification with the french gardein , and therefore of this see more in the title gardein : but it is the most usual word in english , for him that hath the custody and charge of any person or thing by office ; as wardens of the fellowships in london , anno h. . cap. . warden courts , an. h. . c. . warden of the marches , an. h. . cap. . ferry warden , an. eliz. c. . & an. eliz. c. . wardens of the peace , anno edw. . c. . wardens of the west marches , cambden brit. p. . warden of the forrest , manwood , part . . p. , . warden of the alnage , an. h. . c. . warden of the kings armor in the tower , an. e. . c. . chief warden of the forrest , manwood part . . pag. , . warden of the kings wardrove , anno hen. . stat. . wardens of the tables of the kings exchange , anno ed. . stat. . c. . and anno hen. . stat. . cap. . warden of the rolls of the chancery , anno edw. . cap. , & . wardens and communalty of lands contributory to rochester bridge , anno eliz. cap. . and wardens of the stannary courts , instit . . wardmote . wardmote is a term mentioned in the stat. of h. . c. . and signifies a court that is kept in every ward in london , and is usually called the warmote-court , or the wardmote-inquest . warrantie . warrantie . see garrantie . warrantia chartae . warrantia chartae is a writ that lies for him that is infeoffed with warranty , and is afterward impleaded in an assise or other action in which he cannot vouch ; then he may have this writ against the feoffor or his heir , to compel them to warrant the land unto him . and see of this fitz. n. b. f. . d. see garrantie of charters . warrantia diei . warrantia diei is a writ the lies in case where a man hath a day in any action sue ● against him to appear in prope ● person , and the king at that day or before imploys him i ● some service , so that he cann ●● appear at the day in court ; the ● he may have this writ direct ● to the iuistices , that they shal ● not record them to be in defau ●● for his not appearing . and see 〈◊〉 this fitz n. b. fol. . a. and ●● the form of the writ , see g 〈◊〉 vile , lib. . cap. . warren . warren is a place priviledged by prescription or grant of the king , for the preservation of hares , conies , partridges and pheasants , or any of them . warwit . warwit , ( or wardwit , as some copies have it ) is to be quit of giving money for keeping of wards . wast . wast is , where tenant for term or years , tenant for life , or tenant for term of anothers life , tenant in dower , or tenant by the curtesse , or gardian in chivalry , doth make wast or destruction upon the land , that is to say , pulls down the house , or cuts down timber , or suffers the house willingly to fall , or digs the ground ; then he in the reversion shall have a writ for that wast , and shall recover the place where the wast is done , and treble dammages . and if a man cut down timber without licence , and therewith repairs old houses , yet that is no wast . but if he with the timber build a new house , the cutting down of such timber is wast . also the cutting down of vnder-wood or willows , which is no timber , shall not be said to be wast , unless they grow in the sight or shadow of the house . wast , by the civil law , is call'd dilapidation , and for that the executor of a rector or vicar are answerable in the court christian . there is also a writ of wast , permittendo messuagium vel domum fore in decasu & ruinosum . co. ent. . wharf . wharf is a word used in the statute of eliz. cap. . and other statutes and is a broad place near a crock or hithe of water , upon which goods and wares are laid which are to be ship'd and transported from place to place . withernam . withernam is the taking or driving of a distress to a hold , or out of the county , so that the sheriff cannot upon replevin make delivery thereof to the party distrained ; in which case a writ of withernam is directed to the sheriff for the taking of as many of his beasts that did thus unlawfully distrain , or as much goods of his , into his keeping , until he hath made deliverance of the first distress . also if the beasts ( be in a fortier or castle , the sheriff may take with him the power of the county , and bear down the castle , as appears by the statute of westm . . cap. . brit. cap. . woodgeld . woodgeld seems to be the gathering or cutting of wood within the forrest , or money paid for the same to the foresters . and the immunity from this by the kings grant is by crompt . fol. . called woodgeld . woodmote . woodmote is the old name of that court of the forrest which is now , since the statute of charta de foresta , called the court of attachments , and by the statute is held every forty days ; but was wont to be held at the will of the chief officers of the forrest , and at no certain time . see manwoods forrest laws , cap. . fol. . a. woolferthfod . woolferthfod is the condition of such who were outlawed in the saxons time , for not submitting themselves to iustice : for if they could be taken alive , they should be brought to the king ; and if they in fear of apprehension did defend themselves , they might be slain , and their heads brought to the king ; for they carried a woolfs head , that is to say , their head was no more to be accounted of than a woolfs head , being a beast so hurtful to man. see the laws of king edward by lambert , f. . num . . & bract. lib. . tract . . cap. . this is written wulve-sheaved by roger hoveden , part . poster . annal. fol. . wreck . wreck , or varech , ( as the normans , from whom it came , call it ) is , where a ship is perished on the sea , and no man escapes alive out of it , and the ship , or part of it so perished , or the goods of the ship , come to the land of any lord , the lord shall have that as a wreck of the sea. but if a man , or a dog , or a cat , escape alive , so that the party to whom the goods belong , come within a year and a day , and prove the goods to be his , he shall have them again , by provision of the statute of westm . . cap. . made in king edw. . days , who therein followed the decree of h. . before whose days , if a ship had been cast on shore , torn with tempest , and were not repaired by such as escaped alive within a certain time , that then was taken for wreck . y. yard-land . yard-land ( virgata terrae ) in some counties contains acres , in some , and in some acres of land. abate . abate semble de vener del francois abbatre , i. rescindere , destruere , & ad pleuseurs significations . come , abater un chesteau ou fortlet . ( vet. nat. br . fo . . ) que ( en westm . . ca. . ) est enterprete to beat down . et , abater un brief est pur le defaire ou renverser , per ascun erreur , ou exception . britton ca. . et luy que s'enterpose enter le prieur possesseur & son heir , est dit abater en les terres . veies abatement . abatement de brief ou plaint . abatement de brief ou plaint est , quant un action est port per brief ou plaint , en que fault sufficient & bone matter , ou auterment le matter alledge nest certainment alledge , ou si le plaintiff ou defendant , ou lieu sont misnosme , ou si la appear varience perenter le brief & le specialty ou record , ou que le brief , ou declaration sont uncertain , ou pur mort del plaintiff ou defendant , ou pur divers auters semblable causes ; donques sur ceux defaults le defendant poit prier que le brief ou plaint abatera , cest adire , que le suit del plaintiff envers luy cessera pur cest temps , & que il commencera auter temps son suit , & port ū novel brief ou plaint , sil soit issint dispose . mes si le defendant en ascun action plede un matter en bar ' pur adnuller de action a touts jours , il ne viendra apres a pleader en abatement de brief ; mes si apres il appiert in le record , que est ascun matter apparāt pur que le brief doit estre abate , donque le defendant ou asc̄ auter person , ut amicus curiae , poiet bien plede & monstre ceo in arrest de judgment . veies les titles de brief , misnosmer & variance , en les abridgements , & le livre appel les digests del briefs , en queux cest matter especialment est fort bien entreat . sont auxi auters matters queux abate & stay actions & briefs , cestaseavour : variance ent ' brief & count. si le plaintiff soit alien enemy . ( titulo alien . ) pur default de nosmer le defendant de quel vil , ou trade , ou degree il est , ou le suit est per brief . que le feme plaintiff est covert devant , ou pendant la suit. que le plaintiff ad auter action pendant pur mesme le cause . que le brie ● est date devant le action accrue . pur ceo que le ●● fendant doit estre sue euauter court de quel il est attorney ou officer . pur ceo que la ter ' est ancient demesne . que le matt ' en suit fuit fait sur le haut mere , en quel case l' admiral ad jurisdiction . ceux cases suisdits n' abate le brief ou action mes suspend le prosecution pur temps . si le plaintiff en action personel soit utlage ou convict de recusancy , o ● excomenge . sur scire facias versus ter-tenants pur debt , plea que sont auters tenant queux oūt terrs liable a mesme le debt , queux ne sont return , siay proceeding tanque sont auxi return . causes de abatement de brief ou plaint . fault de sufficient ou bone matter . le matter nest certainment alledge . plaintiff , defendant . ou lieu. misnosme . variance enter brief , & specialty , ou record . uncertainty del brief , & count , ou declaration . mort plaintiff , ou defendant . abatement en terres . abatement en terres ou tenements est , quant un hom ' morust seisie de ter ' ou tenements , & un que nad droit entra en mesmes devāt le heir ; cest entry d'luy est appel un abatement , & il un abator . mes si le heir enter primes apres le mort de son ancestor , & le auter enter sur le possession del heir , cest dernier entry estun disseism al heir . vide livre de entries , fol. . c. & . d. & . c. lou cest abatmēt est appel en latin intrusio . et jeo extend destre melius d' appel ceo en latin interpositio , ou intratio per interpositionem , de fair difference enter ceo parol , & intrusion puis le mort de le tenant pur vie . abbe . abbe fuit le sovereign teste ou principale de ceux measons queux quant ils estoient fuerōt appel abbeys ; & cest abbe ove les moigns de mesme le meason , queux fueront appel le covent , fiere un corporal ' . et tiel soveraign de ascun tiel meason ne serra charge pur le act de son predecessor , sil ne soit per common seal , ● e pur tiel chose que vient al use de son meason . auxy ū abbe ne serra charge pur le det en que son commoign fuit en det devant son entre en religion , mesque le creditor ad de ceo un especialty , si non que il avoit devenus al use d' son meason : mes les executors del commoigne serra charge ove ceo . vide que ceo en le abridgment , mesme title , desouth quel veies coment ascuns de ceux fueront elective , ascuns presentative ; & coment fueront prefects , & lour authority . et en cel title sont auxy comprehend touts auters corporations spiritual , come prior & son covent , friers & canons , dean & chapter . abettors . abettors sont in divers cases diversment prise . un kind de abbetters sont ceux que maliciousment , sans droit cause ou desert , procur ' aut ' de suer faux appeals de murder ou felony envers homes , al entent de troubler & griever eux , & pur fair eux en infamy & slander . abettors en murd ' sont ceux que command , procur ' , counsel , ou comfort aut ' de murder . et en ascun case tiel abettors serront prise come principals , & en ascun case forsque come accessories : issint en auter felonies . et lour presence a le chose fait , & lour absence d'la fuit ū difference en le case . il y ad abettors auxy en treason , mes ils sont come principals , car en treason il ny ad ascun accessories . vies pluis de ceo en le livre appelle les pleas del co ● one , compile per le tres reverend judge sir w. stamf. en les titles de accessor ● es , & damages en appeal . abeyance . abeyance est quant un lease est fait pur term de vie , le remainder al droit heirs de j. s. que est en vie al temps del grant : ore per cest grant le remainder passa hors del grantor maintenāt , unc ' il ne vesta maintenant , ne prist effect en le grantee cest a dire , le droit heir d' j s. mes est dit destre en abeyance , cu , come les logiciens appelle ceo , in potentia , ou in intellectu , & , come nous dicimus , in nubibus , cestascavoir , en le consideration de ley , que si j. s. morust , ayant un droit heir en vie , & vivant le lessee pur vie , donques ceo est un bone remainder , & a ore veste , & vient en le dit droit heir , en tiel sort , que il poit grant , forfeit , ou auterment dispose ceo , & cessa destre ore en abeyance pur ceo que il est un a ore de ability pur prēder ceo , pur ceo que j. s. est mort , & ad relinquish un droit heir en vie ; le quel ne poit estre vivant j. s. car durant son vie nul poit ꝓꝑmēt eē dit son heir . item si un hom ' soit patron dun esglis , & present aut ' a ceo , or est le fees des ter ' ou tenem̄ts perteignant al rectory en le parson : mes si le parson morust , & le esglise est devenus void , donque est le fee en abeyance , tanque il soit un novel parson present , admit & induct ; car le patron nad le fee , mes solement le droit de presenter , & le fee est en le incumbent que est present , & puis son mort il nest en ascun , mes en abeyance , tanque il soit un novel incumbent , come est avant dit . vies litt ' lib , . c. . fo . . & perk. fo . . abishersing . abishersing ( & en ascun copies mishersing ) est , quiet ' esse de amerciamentis coram quibuscunque de transgressione probata . abjuration . abjuration est un serement que home ou feme pregnount quant ils ount commisse felony , & fue al esglise , ou cimitory , ou auter lieu priviledge , pur tuition de lour vies , eslisant pluistost perpetual banishment hors de royalm , que a estoyer a le ley , & destre trie del felony : en cel case , devant le coroner il ferra tiel confession que poit faire sufficient enditement de felony : donques le coroner al common ley luy ferra de abjure la realm , & assignera a luy a quel il alera , & luy jura , que il ne va hors del haut chimin , & que il ne demurra a le port ( si il poit aver bone passage ) forsque un flood & un ebb ; & si il ne poit aver passage , que il alera chescun jour , durant xl . jours , en le mere a son genue . mes si tiel felon que abjure ala hors de la chimin & fua a auter lieu , si il soit prise , il serra amesne devant le judge , & la avera judgment destre pendus . et sil que issint pria la priviledge ne voile abjure , donques il avera priviledge pur xl . jours , & chescun poit luy doner viand . et si ascun done luy viand apres xl . jours , mesque il soit sa feme , tiel doner est felony . auxy cestuy que abjure serra deliver per un constable al auter , & de un franchise al auter tanque il vient a son port : et si le constable ne voit receive luy , il serra grievousment amercie . vide juramentum in tractatu de abjuratione latronum . cest ley fuit institute per st. edward le confessor , un roy de cest realm devant le conquest , & fuit ground de le ley de merce , & pur le amour & reverence que il & auters ses successors porteront al meason de dieu , ou lieu de prayers & administration de son parol & sacraments , le quel nous appellon ● s esglise . nota , ces ley est ore change per statutes h. . cap. . h. . cap. . & h. . cap. . per queux appiert , que il a cel jour ne abjurera le realm , mes tout son liberty de cest realm & tout son liberal & frank habitations , resorts , & passage de touts lieux de cest realm , a un certain lieu en cel realm a ceo limit per . h. . ● . . & h. . c. . vide plus in stamf. li. . c. . & vide ore le stat. jac. c. . & jac. c. . pur repeal de touts statues que concern persons que abjure , & le toller des touts sanctuaries . veies stat. de el. cap. , . pur abjuration de recusants , & stat. jac. cap. . abridgement de plaint ou demand . abridgement de plaint ou demand est lou un port un assise , brief de dower , brief de gard , ou tiel semblables : en queux cases pur ceoque le brief de assise est , de libero tenemento , come en brief de dower , le brief est , rationabilem dotem quae contingit de libero tenemento w. son baron , & en un brief de gard le brief est , custod ' terrarum & haeredis , &c. sans monstre ascun auter certainty en les briefs ; mes en le plaint del assise , ou demand en le brief de dower , & en le count en brief de gard , le plaintiff ou demandant monstra le certainty des acres ou parcels de terre : la si le tenant plead nontenure , ou joyntenancy , ou ascun auter tiel semblable plea , a parcel del ter ' demād , ē abatem̄t del brēle plaintst ou demandant poit abridger son plaint ou demand al cest parcel , cest adire , il poit omit hors cest part , & prie que le tenant responder̄ al rest , aq̄ il ne ad unc̄ plede ascun chose . le cause est , p̄ ceo q̄ en tielx briefs le certainty nest mis , mes est generalment : & nient obstant le demandant ad abridge son plaint ou demand en part , uncore le brief demurre bone pur le residue . accedas ad curiam . accedas ad curiam est un brief direct al vicount , luy commandant de aler a tiel court đ ascun seignior ou franchise , lou un plaint est sue pur prisel del avers come distress , ou ascun faux judgment est suppose destre fait en asc̄ suit ē tiel court , quel nest đ record ; & q̄ le vicont la ferra record del dit suit ē presence del suitors ● mesme le court , & de quatuor auters chivalers de le county , & ceo record certifera al court le roy , & a cel jour quel est assigne en le brief . cest brē est fait hors del chancery , & returnable in banco regis ou en le common pleas. accedas ad vicecomitem . accedas ad vicecomitem est un brief direct al coroner , luy commandant a deliver un brief al vicont , q̄ aiant un pone a luy deliver , ceo suppresse . regist orig . . acceptance . acceptance est un prendrance en bone gree , & come un agreement al ascun chose fait devant , le quel puit aver este ūfait & avoid ( si tiel acceptance nad estre ) per luy ou ceux que issint accepta : p̄ example , si un evesque , devant statute fait anno primo eliz. lesse part del possessions de son evesquery pur ans , reservant rent , & morust , & puis un auter est fair evesque le quel accept ' , cest adire , prist ou receive le rent quāt il est due & doit estre pay ; ore ꝑ cest acceptance le lease est fait perfect & bone , le quel auterment le novel evesque poit assers bien avoid . semblable ley est , si un home & sa feme , scisie đ ter̄ en droit del feme , joyn & sont lease ou feoffment per fait reservant rent , & le baron morust , el accepta ou receive le rent : ꝑ cel le feoffment ou lease est fait perfect & bone , & serra bar̄ a luy de porter cui in vita . accessories . accessories sont en deux sorts ꝑ le common ley , & ꝑ le statute ley. accessory ꝑe le common ley est auxy en deux sorts , lun avant le fact est fait , le auter puis . accessory devant le fait est celuy que commanda ou procura auter đ fair felony , & nest la present luy mesme quant lauter le fait ; mes sil soit presēt donques il est auxy principal . accessory puis le fait est celuy que receiva , favour , alda , assist , ou comfort ascun home que ad fait ascun murder ou felony dont il ad conusans . tiel accessory serra punish , & avera judgment đ vie & đ member , auxy biē come le principal q̄ fist le felony : mes tiel accessory ne serra jammes mis a respondu a ceo tanque le principal soit cōvict ou attaint , ou soit utlage de ceo . manslaughter home ne poit eē accessory devāt le fait , car manslaughter coviēt ensuer sur sodain debate ou affray ; car si soit premeditate ceo est murdr̄ . co. l. . f. . a. mes un feme en tiel case ne serra accessory p̄ le aider de son baron . en grand ou hault treason , cibien les cōmanders come les assisters & receivers sont tout foits principals . si home counsel un feme a murder lenfant en sa venter , & apres lenfant est nee , & donque est murder per le feme en le absence de cestuy que issint done le councel ; uncore il est accessory ꝑson counselling devāt le nestr̄ del ensant , & nient ceo countermandant dyer fo . . pl. . auxy un poit estre accessory al accessor̄ ; si come un feloniousm̄t receive un aut ' q̄ est accessory al felony , la le receivor est un accessory . accessory per le statute est tiel que aber , counsel ou receive ascun home que commit , ou ad commit ascun offence fait felony pe statute : car coment que le statute ne fait mention đ accessories , abettors , &c. ūcore ils sont include ꝑ le interpretation des dits stat. stamf. pl. cor l. . c. , , , . vies pluis del accessory in le dit livre de les plees , l. . cap. , , & . accompt . accompt est un brief , & gist lou bailiff ou receiver dascun seign̄r , ou daut ' hom̄ , q̄ doit render accompt , ne vnit render son accompt ; donques celuy aq̄ l' accompt doit estre render avera cest brief . et per le statute de westm . . c. . si le accomptant soit trove en arrearges , les auditors q̄ sont a luy assignes ont power de agarder luy a prison , la a demurrer tanque il ad fait gree al party . mes si les auditors ne voyllont allower reasonable expence & costage , ou sils chargeront luy ove plusors receipts quant ne duissent , donques son ꝓchein amy q̄ voit suer pur luy , suera un brief ● ex parte talis hors del chancery , direct al vic̄ đ prēder mainpernors de render son corps devant les barons del exchequer a certain jour , & ● garner le seignior de appear̄ la a mesme le jour . accord . accord est un agreement parent ' deux al meins , p̄ satisfie un offence ou trespass que le un ad fait al aut ' , p̄ le quel il ad agree de satisfier & content luy ove recompence ; quel si soit execut ' & performe , donques p̄ ceo que cest recompence est un plene satisfaction pur le offence , serra un bone bar̄ en le ley , si lauter , apres l' acord perform , voit suer arrere un action p̄ mesme le trespass . nota , q̄ le primer est properment appelle un accord , le auter est un contract . acquital . acquital est quant la est seignior , mesne , & tenant , & le tenant tient de le mesne certain ter̄s ou tenements en frank-almoign , frank-marriage , ou tielx semblables , & le mesne tiēt oustr̄ auxy de seignior paramount , ou desuis luy . ore doit le mesne acquit ou discharge le tenant đ tout & chescun man̄ de service q̄ ascun auter voit aver ou demand đ luy concernāt mesmes les terres ou tenements , pur ceo q̄ le tenant doit fair le service a le mesme tant solem̄t , & nemy al divers seigniors , p̄ un tenement ou parcel del terre . mesme le ley est ou il est seigū , mesne , & tenant come avant dit , & le mesne grāt al tenant ( sur le tenur̄ fait ꝑēt eux ) p̄ acquit & discharge luy de touts rents , services , & tiel semblables . ceo discharge est appel acquital . mesme le ley est , si tenānt tient de son mesne ꝑ autiels services , come le mesne tient ouster del seignior , & le tenant fait ou paya services al mesne , mes le mesne ne fesait ses services al seignior paramount , p̄ que il distrain les beasts del tenant . en cel case le mesne , per le oveltie des services , doit acquit le tenant del services due al seign̄r . auxi la est acquital en ley , & acquital en fart . acquital ē ley est , ou deux sont appeal ou endict de felony , lun cōe principal . lauter cōe accessory , le principal esteant discharge , le accessory ꝑ consequent est auxy acquit : et en cest case , si come l' accessory est acquit per le ley , issint est le principal ē fait , stamf. pl. cor . fol. . acquittance . acquittance est un discharge en escript d ●● sum de money , ou auter duty q̄ dolt estre pay ou fait . sicome un soit oblige de payer money sur un obligation , ou rent reserve sur un lease , ou tiel semblable , & le party a que le money ou duty doit estre pay ou fait sur le receit de ceo , ou sur auter agreement perenter eux ewe , fait escript ou bill de son mayne en discharge de ceo , testimoignant q̄ il est , pay , ou auterment content , & pur ceo acquit & discharge luy de ceo . le quel acquittance est tiel discharge & bar en la ley , q̄ il ne poit demand & recover m̄ le sum ou duty aut ' foits , fil poit monstre le acquittance . cest parol differe ab hoc quod in jure civili acceptitatio dicitur , quia illud fi●ri potest verbo sine scripto , & nihil aliud est quam ficta solutio & liberatio , lice ● solutio non sit : nec apocha dici potest , quae cautio est solutae dataeve pecuniae , quae non liberat nisi pecunia soluta sit . acre . acre est un certain parcel de terre que contain en longeur perches , & en latitude perches , ou a cest quantity soit le longeur pluis ou meines . et si un hōe voile erect un novel cottage , il devoit amitter quarter acrers de terre a ceo , solonq̄ cest measure , eliz. cap. . et ove cest measure agree mounsieur crompton ē son jurisdiction de courts fol. . uncore il dit que , solonque les divers customs de several pais , le perch differt esteāt en asc̄ lieux ( & plus usualm̄t ) forsque dixsize pees & demi : mes en le countie de staff. le perch est vint quat ' pees com̄ fuit cy devāt adjudge en le exchequer . en stat ' fait an̄ h. . ca. . p̄ ēbleem̄t đ flax , perches font ū acre , le ordinance de admeasurement de terre fait ann . e. . stat. . agree ove cest account . action . action est le forme de un suit dōe per le ley de recover chose , come actiō de dett , & tielx semblabe ; ou come est co. . f. . a. actio est jus prosequendi in judic ' quod alicui debetur . vide lexicon juris , pur action . action del brief . action del brief est un phrase del parlance use quant un plead ascun matter , per que il monstre que le plaintiff nad cause daver le brē q̄ il port , & unc̄ poit estre q̄ il poit aver aurer brief ou action p̄ mesme le matter . tiel plea est appel plea al action del brief : lou si ꝑ la plea appiert q̄ le plaint ' naveroit asc̄ cause de aver ascun action pur le chose demand , donques ceo serra ult plea al action . action sur le case . action sur le case est brief port envers un pur ascun offence fait sans force , come p̄ nient ꝑformāce del promise fait ꝑ le defendāt al plaintiff , ou pur parlance des parols ꝑ queux le plaintiff est defame , ou pur aut ' misdemeanor ou deceit ; lou tout le case serra contenus en le brief . trover , nusance slander de person , trade , de title , escape fur mesne process , p̄ negligent garder de son feu , pur inartificiasm̄t performando opera , pro divertendo antiquum cursum aquae , pro commoner vers un q̄ foder le soil del common ou enjetta ses avers en ceo sance droit on inclose parcel de le common . action mixt . action mixt est un suit done per le ley de recover le chose demand , & demages p̄ le tort fait ; come en assise de nov ' disseisin . quel brē ( si le disseissor fait feostm̄t al auter ) le disseissee avera vers le diseissior & le feoffee ou aut ' ter-tenāt , & en ceo recovera son seisin del ter̄ , & ses damages p̄ le mean ꝓfits , & p̄ le tort a ●● uy fait . et issint est un action đ wast & quare impedit . mes ū action de detinue nest appel action mixt , comment ꝑ ceo le chose detenus est demand , & serra recover si poit eē trove , & damages p̄ le detain̄ ; & si ne poit estre trove , donque damages p̄ la chose & le detainer . mes ceo est appel solement action personal , que serra port solement pur biens , ou chattels ou charters . action sur le statute . action sur le statute est brief foundu sur ascun statute , lou per ascun statute action est done a un en ascun case lou nul tiel action fuit devant : come lou un commit perjury al prejudice dū auter celuy q̄ est damnifie avera brief sur le statute & son case . et le difference enter actiō sur le statute & action popular est , que lou le statute done le suit ou actiō al party grieve , ou auterment a un person certain , ceo est appel action sur le statute : mes lou per le statute authority est done a chescun que voile de suer , ceo est appel action popular . actions personal . actions personal sont tiels actions ꝑ queux home claime dette , ou auter biens & chateux , ou damag ' p̄ eux , ou damage p̄ tort fait a son ꝑson : & est properment cē q̄ ē le civil ley est appel actio in personam , quae adversus eum intenditur qui ex contractu vel delicto obligatus est aliquid dare vel concedere . action popular . action popular est un actiō que est done sur le breach dascun penal statute , le quel action chescun home que voit polt suer per luy mesme & le roy , per information ou auterment , come le statute allow , & le case require . et ● ceux actions il y ad infinite number ; mes un pur example est : quant ascun del jury , que sont impannel & jurus de passer perenter party & party indifferentment prist ascun chose de lun part ou lauter , ou de ambideux parties pur lour verdict dire al ceo part , donques ascun hom̄ q̄ voit , deins lan procheine ensuant le offence , poit suer un ● rief appel decits tantum envers luy ou ceux que issint prist p̄ lour verdict dire . et pur ceo q̄ cest action nest done al un home specialment , mes generalm̄ al ascun des le ; people del roy q̄ voit suer , il est appel ū act popular . mes en cel case quāt ū avoit com̄ence ● p̄suer cel act ' , nul aut ' point c̄ suer , & ē c̄ , cōe seē , cel vaty ● l act ' popul ' ꝑ le civil ley . actions real . actions real sont tiels actions ꝑ queux le demādāt claime title al ascun ter̄s ou tenements , rents , ou cōmōs , en fee-simple , fee-tail , ou p̄ terme đ vie . chescū actiō real est ou possessor̄ , cestascavoir , de son possession ou seisin demesne ; ou ancestrel , 〈◊〉 . del seisin ou possession de son ancestor . co. l. . f. . acts. acts đ parliament , sont leys positive , que consist de deux parts , cest adire , de les parolx del act , & del sense ● ceo ; & ils ambideux jonyt ensemble font la ley. additions . addition est ceo que est done al home ouster son proper nosme & surnosme , cē adire , p̄ monstrer de quel estate , degree , ou mystery il est , & de quel vill , hamlet , ou county . additiōs đestate sōt ceux , yeoman , gentleman , esquire , & tiels samblables . additiōs đ degree s̄ot ceux q̄ nous appelomus nosmes đ dignity ; come chivaller , count , marquess , duc. additions de mystery sont ceux , scriven̄ , painter , mason , carpent ' , & touts aut's đ sēblable nature : car mystery est le craft ou occupation ꝑ que home gain son living . additiō đ villes , cōe sale , dale ; & issint de les auters . et lou un home ad houshold en deux lieux , il serra dit demurrer en ambideux ; issint que son addition en un de eux suffist . fuit ordeine per le statute an. h . c. . que en suits ou actions ou process đ utlagary gist , tiels additions serra nosme del defend ' , a declarer son estate , mystery , & lieu ou il inhabit ; & que tiels briefs abateront , sils ne ount tiels additions , si le defendant prist exception a ceo ; mes ils ne abateront ꝑ office del court. auxy , duke , marq̄ss , coūte , ou chivaler , ne sont pas de ceux additiōs , mes nosmes ● dignity , queux duisloint aver estre done devant le statute . et ceo fuit ordeine per le dit statute , al intent que un home ne serroit grieve ne trouble per le utlegarie de un auter : mes que per reason ● le certain addition , chescun home poit estre certainment conus , & porter̄ sa burden demesne . adjournment . adjournment est , quant ascun court est dissolve & determin a present , & assigne destre garde arreare al auter lieu ou temps , & ( moy semble ) est compound de deux par ● ls ( ad , ou al , & jour . ) admeasurement de dower . admeasurement de dower est un brief que gist lou un feme est endow per un infant ou per un gardein de pluis q̄ devoit aver ; le heir en tiel case avera cest brief , per quel la feme serra admeasure , & le heir restore a le su ● plusage . mes si un abate , cest adire , un que nad droit enter apres le mort de baron , & endow le feme de cestuy que est mort de pluis que doit ayer , le heir navera cest brief , mes assise de mort dancestor , vers la feme : & si el plede que el fuit endow de ceo terre come del franktenement sa baron , le heir monstre coment el suit endow per le abator , & que el ad pluis que devoit aver , & priera que il soit restore al surplusage ; & si soit trove , il serra restore . admeasurement de pasture . admeasurement de pasture est un brief , & gist lou plusors tenants on t common appen ● en auter ter̄ , & un surcharge le com̄on ove plusors avers : donques lauters commoners poient aver cest brief vers luy . et auxy poit eē port ꝑ un com̄on solement : mes donques covient estre port vers touts lauters commoners & vers cestuy que surcharge , p̄ ceo que touts les com̄oners serront admeasures . et ceo brē ne gist vers luy ne pur luy que ad common appurtenant , ou common in gross ; mes ceux q̄ ont common appendant , ou common per cause de vicinage . vide le diversity de tout ceux commons apres en le title de common . auxy cest brief ne gist p̄ le seignior , ne vers le seignior , mes le seignior poit distrain les avers le tenant q̄ sont surplusage . mes si le seignior surcharge le common , les commoners nont remedy per le common ley , mes un assise de son common . administrator . addministrator est celuy a que le ordinary commit le administration des biens le mort pur default de executor , & un action giser ' vers luy , & p̄ luy , come pur executor , & serra charge jesques al value des biens le mort , & nient ouster , sil ne sont ꝑ son faux plea , ou p̄ ceo que il ad wast les biens le mort . si le administrator devie , ses executors ne sont administrators , mes covient al ordinary de comitter novel administration . et si un estrange , que nest administrator ne executor , prists ' les biens del mort , & administer de son tort demesne , il serra charge & sue come executor , & nemy come administrat ' , en ascun action que est port vers luy per ascun creditor . mes si le ordinary fait un brief ad colligendum bona defuncti , celuy q̄ ad tiel lett ' nest administrator , mes le action gist vers le ordinary , auxy bien come sil priest le biens en son main demesne , ou ꝑ le main de ascun de des servants per ascun auter commandement . est auxy un auter sort de administrator , lou un fist son volunt , & fist un infant deins age de son executor . le evesque commit administration al ascun amy durant le nonage de le executor , quel administrator sil sue , ne count q̄ le mort devy intestate , quel administration cessa quant l' enfant est ans đ age . admiral . admiral est un haut officer que ad le regiment de la navy del roy , & l' audition & termination de tout causes cybien civil com̄ criminel appurtenant al mere ; & pur cest purpose il ad son court appel le admiralty . il poit causer son citation destr̄ serve sur le ter̄ , & prender le corps del party ou biens en execut ' sur terre . item il ad cognisance del mort ou maihem de un home , fait en ascun grand nief fleetant en grand rivers en le realm , debase les ponts de eux prochein al mere. auxy p̄ arrest niefs en les grand streams pur les voiages del roy & realm ; & ad jurisdiction en les dits streams durant mesmes voiages . ad quod dampnum . ad quod dampnum est un brief q̄ doit estr̄ sue devant le roy grant certain liberties , come faire , market , ou tielx semblables , q̄ux poiet estr̄ prejudicial al auters . et ꝑ ceo serra inquire si serroit prejudice a granter eux , & a que serra prejudicial , & que prejudice ent aviendra . est auxy un auter brief de ad quod damnum , si un voil divert un common chymin , & faire un novel chymin cy beneficial . ambideux queux ( coment trove destre nient prejudicial ) poient estre travers en auter action , coment que le roy ad fait son grant pursuant al verdict del jury . advent . advent est un temps que contein environ un moys ꝓchein devant le feast del nestr̄ de nostre saviour christ . en que nr̄e ancestors on t repose grand reverence p̄ le propinquity de cel solemn feast , issint que touts suits en ley fuer̄ donques remit pur un season . pur quoy la fuit un statute ordein , west . . c. . que nient obstant le dit solemnity , puit estre loyal , en respect đ justice & charity a prender assises de novel disseisin & darreine presentment , en le temps de advent , septuagisima , & quadragesima . cest un des temps de le commencement đ q̄l usque a les octaves de l' epiphany le solemnizing đ espousals sont ꝓhibit destre solempne sans especial licence , accordant a les verses : conjugium adventus prohibet , hilarique relaxat : septuagena vetat , sed paschae octava reducet . rogatio vetitat , concedit trina potestas . mes l' evesque poit dispense ove un marriage deins ceux temps & ceo est bien . advowson . advowson est , lou un home & ses heirs ont droit de presenter lour clerk al un parsonage , ou aut ' espiritual benefice qn̄t il devient void . et celuy q̄ ad tiel droit de presenter est appel patron . en gross est lou home est seisie de ceo est solement per luy mesme . et est advowson appendant al un mannor ou al un rectory , &c. poit estre vend a ꝑ luy , & tunc est en gross & sever del mannor & rectory . affeerors . affeerors sont tiels que sont designe en court-leets , &c. a mulcter tiels que ont commit ascun peche que est arbitrablem̄t punishable , & p̄ quel nul expresse penalty est prescribe per statute . poies veier le form de lour serem̄t en kitch . so . . si les jurors en un leet recevont les articles , & esteant command a respon ● al eux & present , ils refuse isint a faire , donque ils serront amercie ; uncore l' amerciam̄t de chescun juior serra affeere solonque a son offence . issint en assise ● novel disseisin touts les disseisors serront amercie , & chescun ser̄a affeera ꝑ luy . mes si un ville soit amercie , la l' affeer̄ace ser̄a general , car la nest asc̄ certain person nosm̄ , come en les cases ꝑavant dit . et si un jury en un leet taxe un amerciam̄t , ceo suffist sans asc̄ affeerm̄t , car le amerclam̄t est le act del court , & le affeerm̄t le act del jury . co. lib. . f. , . b. affiance . affiance est le plight del foy ent ' home & feme sur un agreement dun marriage deē sclemnize ent ' eux ; & affidare , de quel cest parol est derive , est tant a dire come fidem ad alium dare . et cest parol assiance est use per littleton , chap. de dower , sect. . afforest . afforest est , converter terre en forest . charta de forest . cap. . & . an. h. . affray . affray venust del parol francois ( effrayer ) que signifie terrere sive horrificare ; & issint un affray poit estre sans parol ou buffe done & issint cest parol est use ēile stat ' ● north. . e. . c. . mes en nostre livres c̄ parol est plus foits confound ove le parol assault , come appiert per lambert en son eirenarch . lib. . c. . mes uncore , come est la dit , ils differont en ceo , q̄ un assault nest forsque un tort al party , mes un affray est un tort al bien publique : & pur ceo un affray est inquirable & punishable en ū leet . auxy un assault est fait plus tost forsque sur lun part : mes un affray est le combatre de plusors ensemble . age prier . age prier est , quant action est port vers un enfant de terre que il ad ꝑ discent , la il monstra le matter al court , & prayera que le action demur tanque a son plein age de ans , & issint ꝑ agarde de court le suit surcessera . mes en brief de dower & en assise , & auxy en tiels actions lou le infant est suppose a vener al terre en demand de son tort demesne , il navera sa age . auxy nota , que sont plusors diversities de ages . car le seignior avera aide de son tenant en socage pur marrier sa file , quant la file est del age de sept ans ; & aide pur faire son fits & heir chivaler , quant il est del age de sept ans . feme que est espouse al age de ans , si sa baron morust seisie , avera dower , & nemy devant . auxy ans est le age de feme , que ne serra en gard , si el fuit de tiel age al temps del mort son ancestor ; mes si el fuit deins age de ans , & en gard son seignior , donques el serra en gard tanque al age de ans . et ans est le age de heir male destre en gard , & apres ceo hors de gard. et auxy il est le age đ male & female de suer & destr̄ sue des terres que ils ont claim̄ per descent , & đ faire touts . manners de contracts & bargains , nient dev ● nt : m s si tiel enfant deins age de ans don̄ ses biens , & le donee eux prist , le enfant poit aver un action de trespass : mes auterment il est sil deliver eux . vide coke l. . fol. . a. l. . f . agent & patient . agent & patient est , quant un home est le feasor de un chose , & le partie a que il est fait ; come lou fe ●̄● endow luy mesme de la pluis belle part de possession de sa baron . issint si home ad dixe livers issuant hors de certain ter̄ , & il disseise le tenant del ter̄ en assise port ꝑ le disseisee , le disseisor recoupera le rent en le damages ; issint que ou le mesne ꝓfits del ter̄ en tiel case fueront al value ● livres , le disseisee recovera forsque trois livres . auxy si un home endette a un auter , & puis fait le partie a que il est issint endette son executor , & morust , le executor poit retain tant des biens del mort en ses mains come son dette demesne amountera ; & ꝑ ceo deteiner il ● st le agent & le patient , cesiacavoir , le partie a que le dette est due , & le partie que ceo paya . mes home ne serra judge en son cause demesne , com̄ est resolve , cok. lib. . fo . . en bonhams case , que les censors ne povent estre judges , ministers , & parties ; judges a doner sentence ou judgment , ministers a fair summons , & partie de aver le moiety del forfeiture . et com̄t q̄ act de parliam̄t done a asc̄ , a tener ou de aver conusans de touts manners des pleas devant luy surdāt deins son mannor de d uncore il tener̄ nul plea a q̄ il mesme est party ; quia iniquam est aliquem suae rei esse juaicem . agist . agist semble de vener del francois giser ( i. jacere ) ou del g ● ster ( i. stabulari ) un parol ꝓper as dames ; & p̄ ceo budaeus lib. poster . philologiae , dit q̄ gist idem est quod lustr ' vel cub ● le . et agist en nor̄e com̄on ley signifie đ prēder eins & de pasture les avers dun estranger deias les forests le roy ; & p̄ ceo les officers en le forest q̄ en tiel manner prent eins avers , & collect les deniers p̄ le pasturage ● eux , sont appelle agistors , & le pasturage & herbage de avers est appel agistment ; q̄ en un large signification extend al touts man̄ers del com̄on del herbage de ascun kind đ ter̄ , ou bois , ou les deniers que sont due & receive pur ceo cybien hors de forests come deins eux . vide manw. forest leys , cap. . fo . . agreement . agreement est en cest manner define ou expounde en plowden's commentaries : aggreamentum est compound de deux parolx , cestascavoir , de aggregatio & mentium , cest adire , agreement de ments . issint q̄ aggreamentum est aggregatio mentium in re aliqua fac̄ta vel facienda ; & ꝑ le contraction de les deux parolx , aggregatio & mentium , & ꝑ le corrupt & brief parlance ● eux , ils sont fait un parol , cestasc̄ , aggreament ' , le quel nest aut ' chose que un union , copulation , & conjunction ● deux ou plusors ments in asc̄ chose fait ou destr̄ fait . ( veies apres en testament . ) et cest agreement est en manners . le prim̄ est un agreement execut ' en fait al com̄encem̄t . le second est un agreem̄t puis un act fait ꝑ auter , & est un agreem̄t executed auxy . le tierce est un agreem̄t executory , ou destre fait en temps uncore a ven̄ . le prim̄ q̄ est un agreem̄t executed en fait al com̄encement est tiel de que mention est fait en le star. de . e. . cap. . de pannis , en le quart star. q̄ dit que les biens & choses achates , ꝑ forestallers , que de ceo serront attaints , soient forfeits al roy , si le achator ent ust fait gree al vendor . en quel case cest parol ( gree ) que est auterm̄t appel agreem̄t , serra entende agreement execute , viz. payment pur les choses . le second man̄er đ agreement est , lou un fait un chose ou act , & un auter agree ou assent a ceo apres : come si ū fait disseisin a mon use , & apres jeo agree a ceo , ore jeo serra disseisor ab initio . et tiel agreement est un agreement puis un act fait . le tierce agreem̄t est , q ●̄t ambideux parties a un temps , sont accords que tiel chose serra fait en temps a ven̄ : & ceo agreement est executorie , entant q̄ le chose serra fait apres , & uncore la lour ments accord a un temps . mes entant que le performance serra apres , & issint le chose sur q̄ l'agreement fuit fait remaine a faire , ceo agreem̄t serra dit executorie . et ceo le stat. h. . stat. . prove , ou il dit , que chescun vicar , parson , & autiels , &c. devant lour actual possession ou medling ove les profits de lour benefice , satisfiera , cōtentera , &c. ou agre era a payer al use le roy les prim̄ fruits , &c. et si ascun tiel parson , vicar , &c ent ' en actual possession , &c. ceo agreement est destre entend executorie , come le cōmō usage prove : car est use q̄ il , ove un ou deux ove luy , fait deux vel trois obligations p̄ ceo destre pay en certain iours apr̄s et cest agreement executory est divide en deux points : un est agreement executory q̄ est certain al com̄encement , come est dit darrein devant del primier-fruits . lauter est , lou le certaintie ne appiert al primes , & les parties sont accords que le chose serra perform ou pay sur le certainty conus : come si un ven ● al auter tout son wheat ē tiel tasse en son barn nient thresh , & il est agree parent ' eux , que il payera p̄ chescun bushel s. quant il est thresh clean & measure . aide . aid est , quant tenant a term de vie , tenant en dower , tenant ꝑ le curtesie , ou ten̄t en taile apres possibility ● issue extinct , est emplede ; dōques p̄ ceo q̄ ils nōt estare forsque p̄ term đ vie , ils prieront aide đ cestuy en le reversion , & process serra fait per brief vers luy , de vener & pleder ove le tenā in defence del terre , si voile , mes ils covient que ils accord en plea , car sils varie , le plea le tenant serra prise , & donques l' aid-prier est en vain ; mes sil ne vient al secōd brief , le tenant respondera sole . aux ' tenant p̄ ans , tenāt a volunt , tenant ꝑ elegit , & tenant per statute-merchant averont aid de cestuy en le reversion ; & le servāt & baily de lour master , quant ils ont fait asc cho ● e loyalm̄t en le droit lour master , averont aid . cest parol est asc̄ foits apply al subsidies , cōe en e. . stat. . cap. . auter foits a un prestation due de les tenants a lour seigniors ; come p̄ relief due al seignior paramount , ou p̄ le feisance de son fits chival . ou p̄ l' espousing de sa file . glan . l. . c. . cest aide le roy , ou auter seign̄ ꝑ l'ancient ley đ anglit●rre , puit giser sur lour tenants , p̄ fair son fit ; chival ' al age đ ans , & espouser sa file al age đ sept an● , reg. orig . f. . a. & a quel rateils pleiront . mes le stat. de uest . . fait an. . e. . ordein un restraint p̄ ascun grād ou large demand fait ꝑ common persons , esteant seigniors , en cest case , & ad lie eux a un ceartain rate . et le statute ● e. . stat. . c. . provide , que le rate que est mise ꝑ le prim̄ stat. serra tenus en le roy cybien come en auters seigniors . aide de roy. aide de roy est en semble case come est dit devāt de common ꝑson , & auxy en plusors aut ' cases lou le roy puit aver ꝑde , com̄t q̄ le tenāt soit tenant en see simple , il avera aide ; come si un rent soit demand vers tenant le roy que tient en chief , il avera aide , & issint navera de aut ' person . auxy lou un city ou borough ad un fee-farme del roy , & asc̄ chose est demand vers eux que appertain al fee-farme , ils averont aide pur ceo del roy. auxy home avera aide de roy en lieu de voucher . auxy le bayliff , collector & purveyor del roy averont aide del roy , auxibien come les officers de auters persons . aile . aile est un brief que gift lou terre descende de layel a son nephews , viz. fitz ou file del fitz del ayel ; le pier esteant mort devant entry per luy , & un abate , le heir avera vers le abater cel brief . aler sans jour . aler sans jour est , ( verbatim ) ire sine die , cestascavoir , deē dismisse hors del court , p̄ ceo que nest asc̄ aut ' jour del appearance assigne . ale-taster . ale-taster est un officer appoint & jure deins chesc̄ leet , de veier q̄ le due assise soit observe de tout le pane , ale & cervoise vendus deius le jurisdiction đ leet . alien . alien est un subject nee hors del ligeance de nostre roy. et il ne poit aver ascun real ou personal action concernant ter̄ , mes en cheseū tiel actiō le tenāt ou desēdāt puit plede que il fuit nee en tiel pais q̄ nest deins le ligeance del roy , & demād judgment , fil serra respondu . chesc̄ alien amie puit per le com̄on ley aver & acquirer deins cest realm , ꝑdone , chivi ●● ns , ou aut ' loyal voyes , as ● treasure ou biens personal quecunque cybien cōe asc̄ hōe englois , & puit maintain asc̄ actiō p̄ y cel mes teīs deins cest realm ou measons , si nō solem̄t p̄ lour habitation , aliē amies ne poiēt aver ne acquirer , ne maintain asc action real ou ꝑsonal p̄ ascun terre ou meason , sinon q̄ le meason soit pur lour necessary habitation . un aliē enemie ne poit maintain asc̄ act ' , ou acquir̄ asc̄ chose deins cest realm . et les reasons p̄ q̄ aliens nee ne sont capable de inheritāce deins angleterre , sont ; primerm̄t , les secrets del royalm poiēt ꝑ ceo eē cō . secundment , les revenues del royalm serront prise & enjoy ꝑ estrangers nee . tiercem̄t , ceo voile tend al destruct ' del royalm . primerm̄t en le temps de guerr̄ , car donq̄s estrāgers poiēt fortifie eux mesmes en le euer ● l royalm , & cōbuster le commonweale . secundm̄t , en le tēps đ peace , car ꝑ tiels meās plusors asiēs nee poiēt acquirer un grand part del inheritance & franktenement del royalm , ꝑ q̄ la voile ensue un failer đ justice , le supporter ● l common-weale , p̄ ceo q̄ aliens ne poient estre returne ● juries , ne jure p̄ le trial de issues perent ' le roy & le subject , ou perenter subject & subject . vide coke lib. . calvins case . alienation . alienation idem est quod alienum facere , ou de alter ou mitt ' le possession ● terres ou auter chose de lun home al auter . et en ascun cases home ad poier en luy . mesme issint a faire , sans lassent ou licence dascun auter & en ascun nemy , come si tenant en capite alien son estate sans cōge le roy. donq̄ ꝑ le stat. de ed. . cap . un reasonable fine serra prise , ou al common ley devant le dit stat. les terres & tenem̄ts tenus en chief del roy , & aliē sās , cōgee , ōt este tenus forfeit . et si tenant le roy q̄ teigne ē capite intend de aliener al c. al use de d. & sur ceo si il purchase licence de aliener al c. & accordant il alien a c. al use de d. quel use nest mentiō e le licence : en cest case il payer̄ forsque ū fin̄ , car est forsque un alienation , cok. lib. . fol. . mes si home voile alien̄ terr̄ en fee-simple a un meason de religion , ou a un corps incorporate , covient a luy daver conge le roy de faire cest grant ou alienation , & le chief seigniors đ queux tiels terr̄ sont tenus , &c. auterm̄t le terr̄ issint alien en mortmaine serra forfeit ꝑ le stat. de r. . cap. . allay . allay est le temper ou mixture de or & argent ove plus base metal , pur l'augmenter del pois de ceo entant que poit countervaile le charge del roy en le coynage . cest parol est use en le statute h. . cap. . pur le payment del or anglois per le pois le roy. almner . almner est un officer del hostel le roy , & son office est pur dispence les alms le roy chescun jour ; & a cest purpose il ad le collect ' des touts forfeitures des deodands , & des biens des felons de se , que le roy luy allow p̄ disposer ē alms as povers . et de son office , vide fletam , l. . c. . almoin . almoin , veies aumone . alnageor . alnageor est un officer del roy que per luy mesme ou ꝑ son deputy vey al assise de tout le pane que est fait de lane per tout le terre , & a mitter signets , pur tiel purpose ordeignes , al eux e. . stat. . c. . anno . r. . c. . et il est destre accomptable al roy pur chescun pane que est issint seale en un fee ou custome a ceo apperteignant . altarage . altarage en latin , altaragium , signify duties & offerings al sainct altars , mention cro. rep. . que un vicarage fuit endow ove ceo & petit disms . ambidexter . ambidexter est celuy que , quant un matter est en suit ꝑnter homes , prist argent de lun part & del aut ' , ou pur labour le suit , ou tiels semblables ; ou sil soit del jury , pur dire son verdict . amendment . amendment est , quant error est en le process , les justices poiēt c̄ amen ● apres judgment . mes si error soit ē judgment done , ils ne poiēt amender ceo , mes le party est mis al brē de error . et en plusors cases lou le default appiert en le clerk q̄ escria le record , il serra amend : mes tiels choses que vient ꝑ information del party , come le ville , mysterie , & hujusmodi , ne serra amend , car il doit informer uray a son peril . amercement . amercement pluis properment est un penalty assess per les peers ou pares del partie am̄cie , pur un offence fait ; come p̄ default ● suit de court , ou pur non amend đ asc̄ chose q̄ il fuit appoint de redresser devant , ou pur tiel semblable cause : en quel case le party que offend soy mist en le mercie del roy ou seignior , & sur ceo cel penalty est appel amerciament . et la est un difference perenter amerciam̄ts & fines , kitch . . car fines sont punishments certain , que cresceront expresment de ascun statute ; & amerciaments sont tiels que sont arbitrablement impose per les aff ● eerors , quel kitch . semble a confirm̄ fol. . en ceux parolx , amerciament est affere per pares . auxy il appiert , coke lib. . f. . que un fine est touts foits impo ● e & assesse per le court ; mes amerciament q̄ est appel en latin misericordia , est assesse ꝑ pays . auter diversity la est : come si home soit convict devant le vicount en le county ● un recaption , il serra forsque amercie , mes sil soit convict de ceo en le common bank , il serra fine . et le reason de cest diversity est , que le county-court nest pas court de record , & pur ceo ne poit imposer un fine , car nul court poit imposer fine mes tiel court q̄ est de record , coke lib. . fo . . a. si le defendant ou tenant plead un faux fait a luy , ou deny son fait demesn̄ , & ceo est trove vers luy , ou sil , relicta verificatione , cognoscit actionem ; il serra fine pur fauxism , quia certi debemus esse de proprio facto . mes si ua deny le fait son ancestor , & ceo est trove vers luy , uncore il ne serra fine , mes amercie solement , quia de alieno facto . co. lib. . fol. . a. vide pluis la. amercemement royal . amercement royal est , quāt un vicount , coroner , ou auter tiel officer del roy , est amercy per les justices pur son misdemeaning en le office , quaere si ne serra dit fine . amoveas manus . amoveas manus . veies ouster le mayn . an jour , & waste . an jour , & wast , est un forfeiture quant un home ad fait petit treason ou felony , & ad terres queux il tient de ascun common person , queux serra seisi pur le roy , & remaine en son maines per la space de un an & un jour prochein apres le attain ● ; & donques les arbres serront defosse , les measons rases , & le pastures & prees ayres & plowed ; si non que il a que terre devenera per leschete ou forfeiture ne ceo redeem̄ del roy. un chose le pluis de greever le offendors , & terrifie auters de cader en autiel , en demonstrance coment le ley detest lour offence cy avant , issint que il execute judgment & punishment sur lour mute & mort chosez ; aniente . aniente venust del francois aneantir , ( id est ) annihilare ; car aniente en nostre ley signifie tant come frustrate ou defeat , & est use per littleton , sect. . annates . annates est un parol use en le stat. hen. . cap. . & semble deē tout un ove primitiae : car issint pol. virgil. de inventione rerum , lib. . cap. . dit , quod annatarum usus multo antiquior est quam recentiores q ● idam scriptores suspicantur , & annatas ( more suo ) appellant primos fructus unius anni sacerdotii vacantis , aut dimidiam eorum partem . annua pensione . annua pensione est un brief per que le roy , aiant due a luy un annual pension de ascun abbot ou prior pur ascun de ses chapleins que il voile nosmera , que nest provide dun competent benefice , ceo demand del dit abbot ou prior pur un que est nosme en mesme le brief , jesque , &c. & auxy luy comman ● , pur le meux assurance de son chaplein , a doner ses letters patents a luy pur icel . vide fitzh . nat. brev. fol. . ou poyes auxy veyer les nosmes de touts les abbeys & priories que fueront lie a ceo en respect de lour foundation ou creation , & auxy pur le forme des letters patents usualment grant sur tiel brief . annuitie . anauitie est un certain sum de money grant a un auter en fee-simple , fee-tail , pur term de vie , ou pur term de ans , a receiver del grantor , ou ses heirs , issint que nul franktenement est charge de ceo , de que home navera unques assise ou auter action , forsque brief de annuity ; & nest ascun assers al heire le grantee , a que il descendera . la sont plusors differences perenter annuities & rents : car chescun rent est issuant hors de ter̄ , mes un annuity nest , mes chargera le person , cestascavoir , le grantor ou ses heirs , que ont assets per descent , sinon que special proviso soit al contrary : come littl. sect. . auxy pur un annuity nul action gist● , forsque solem̄t un brief de annuity vers le grantor , ses heirs ou successors : & cest brief de annuity ne unques gist vers le pernor des profits , mes solem̄t vers le grantor ou ses heirs . lou pur un rent mesmes les actions gisont envers le tenant del ter̄ , & ascun foits envers celuy q̄ est pernor del rent , cestascavoir , vers luy que prist le rent torciousm̄t . auxy un annuity nest destr̄ prise pur assets , pur ceo q̄ nest asc̄ franktenemēt en ley. et ne serra mis in execution sur un stat. merchāt , stat. staple , ou elegit , sicome un rent puit . doct. & stud. cap. . vide dyer fol. . pla . . auxy un annuity ne poit estre sever , co. li. . f. . b. accordant al metre la : annale aut debitum judex nec separet ipse . anoysance . anoysance est un parol use en le statute h. . cap. . & signifie nient plus que nusance , & pur ceo vid. tit. nusance . apostata capiendo . apostata capiendo est un brē direct al viscount , pur le pren ● del corps dū q̄ , aiant ent ' & professe asc̄ order de religion , relinquy le dit order , & wave son meason , & est vagrant en le pais : & sur un certificate đ ceo matter ꝑ le soveraign del dit meason de religion fait en le chancery , & le prier del dit brē , il avera ceo direct al viscount p̄ la apprehender đ luy , & redeliver al dit soveraign del mease ou son loyal attorny . vid. le form del brē en fitz. nat. bre. . c. appeal . appeal est lou un ad fait murder , robbery , ou mayhē , donq̄s le feme cestuy q̄ est tue avera un action de appeal vers le murderer ; mes fil nad feme adonques son prochein heir male avera le appeal a ascun temps deins lan & jour apres le fact . auxy cestuy que est issint rob ' ou maimed avera son appeal : & si le defendant soit acquite , il recovera damages vers le appellour & l' abettors , & ils averont imprisonm̄t dū an , & ferra fin al roy. appeal de maihem nest en manner forsque action de trespass , car il ne recovera forsque damages . appeals sont com̄ence deux voyes , ou ꝑ brief , ou ꝑ bill . per brief , quant un brief est purchase hors del chancery ꝑ un hōe vers aut ' , luy com̄andant q̄ il appealera un tierce home dasc̄ felony ou auter ● f ● ence per luy commit , & a trover pledges que il ceo ferra ove effect ; & cest brief est destre deliver al vicount destre record . appeal per bill est , quant u ● home de luy mesme done son accusation dauter home en escript al vicount ou coroner , & prist sur luy le burden ● appealing cestuy que est nosme en le dit escript . appellant est le plaintiff en le appeal . appendant & appurtenant . appendant & appurtenant sont choses que per temps de prescription on t belōg , appertain , & sont joyn al ū aut ' principal chose , ove que ils passont & va com̄ accessar̄ al m̄ principal chose , 〈◊〉 virtue ● ceux parols , pertinentiis , cōe ter̄ , advowsons , com̄ons , piscaries , chimins , courts , & divers tiels sēblables , al ū man̄ , meason , office , ou tiels aut ' . apportionment . apportionment est un dividing en parts un rent le quel est dividable , & nient entire ou whole ; & entant q̄ le chose hors de quel il fuit destre pay est separate & divide , le rent auxy ser̄ divide , aiant respect a les parts . sicōe un home ad un rent-service issuant hors de terres , & il purchase parcel de le terre , le rent serra apportion accordant al value del terre . issint si hōe tient son terre dun aut ' 〈◊〉 homage , fealty , escuage , & certain rent , si le seign̄r de q̄ terre est tenus purchase parcel del terre , le rent serra apportion . item si home lessa terres p̄ ans , reservant rent , & apres un estrange recover part de le ter̄ donques le rent serra apportion , cest adire , divide , & le lessee paiera , aiant respect a ceo q̄ est recover , & a ceo que ore remain en ses maines accordant al value . mes ū rent-charge ne poit eē apportion , ne choses q̄ sont entire : sicome un tient ter̄s per service de payer a son sūr annuelment a tiel feast un chival , esperver , ū rose , un cherry , ou tiels semblables ; la si le sūr purchase parcel de la ter̄ , cest service est tout ale , pur ceo que un chival , esperver , rose , ou un cherry , & tielx auters , ne poyent estre divide on apportion , sans damage al entierty . en asc̄ cases rent-charge serra apportion : come si home ad rent-charge issuant hors delter̄ , & son pere purchase parcel de les terres charges en fee , & morust , & cel parcel discend a son fits que ad le rent-charge ; ore cel charge serra apportion solonque le value de la terre , p̄ ceo que tiel portion de la ter̄ purchase 〈◊〉 le pere ne vient al fits 〈◊〉 son fait demesne , mes 〈◊〉 discent , & 〈◊〉 course de ley. common appendant est de common droit & severable ; & coment que le commoner en tiel case purchase parcel del terre en que le common est eppendant , unc̄ le common serra apportion : mes en tiel case common appurtenant & nemy appendant per purchase est extinct . coke lib. . fol. . appropriations . appropriations fuer̄ , quant ceux measons 〈◊〉 religion , & ceux religious ● sons , come abbots , priors , & tiels semblables , avoiēt le advowson ● ascun parsonage al eux & a lour successors , & obtain licence de le pape , ordinary , & roy , q̄ ils mesmes & lour successors de ceo en avant doient estre parsons la , & il serra en avant un vicarage , & q̄ le vicar servera le cure. et issint al com̄encem̄t appropriations fueront faits solement a ceux persons spirituals que puissoient minister les sacraments , & dire divine service , come abbes , priors , deans , & tiels semblables . apres per petit & petit ils fueront enlarge & fait as auters , come nosment al dean & chapter , quel est corps corporat , consisting ● plusors , and corps ensemble ne puissont dire divine service ; & , que pluis fuit , al nuns que fueront prioresses ● asc̄ nunnery quel fuit chose horrible , entant que ils ne puissoient minister sacram̄ts , ne preach , ne dire divine service al parochians . et tout ceo fuit sur pretence de hospitality & maintenance de ycel . et de supplier ses defects , un vicar fuit devise , quel serroit deputy al priors , ou dean & chapter , & auxy al darrein al dit abbes , & auters a dire divine service , & il averoit pur son labour forsque petit portion , & ils a quel le appropriations fueront fait reteigneront le grand revenues ; & ils feloyent riens p̄ ceo , 〈◊〉 means de quel hospitality decay en le lieu ou il doit estre chiefment gard , nosmement ē le parish ou le benefice fuit , & ou les profits cressoyent : & issint il continue tanque a cest jour , si non pis , ven que non seulment les freres & les nuns , mais les laiques tant homes q̄ femes en ont la possession , al grand hinderance del erudition , ai impoverishment de le ministery , & le infamy de la gospel & les professors de ycel . le vicar avera un certain portion del benefice , & le abbe & le covent ferront parsons , & averont les auters profits . cest appelle un appropriation , & donques le abbe , & le covent serront parsons imparsonees : mes tiel appropriation ne poit eē fait a commencer en le vie le parson , sans son assent . et apres l' esglise fuit appropriate , donques fuit ceo un incident inseparable al meason de religion a q̄ ceo fuit issint appropriate . et p̄ ceo ou les terres des templars en angleterre fueront done 〈◊〉 les general parols dun act 〈◊〉 parliament 〈◊〉 e. . al hospitallers , fuit adjudge , que les hospitallers per le dit act naveront l' appropriation , car ceo fuit inseparablement annex al corporation des templars : quel chose consistent en inseparable privity , per general parols dun act de parliament ne serra transferre al auters . coke lib. . fol. . a. mes si tiel advowson del parsonage soit recover 〈◊〉 ancient title , donques l' appropriation est adnulle . et est appelle appropriation , p̄ ceo q̄ ils teigne les profis a lour ꝓper use . approvement . approvement est , lou un home ad common en le waste terre 〈◊〉 seignior , & le sn̄r enclose part del waste ter̄ p̄ luy mesme , relinquishant niēt obstāt sufficient com̄on , ove egresse & regresse , pur les com̄oners . cest inclosure est appel approvement . vide ● e reg. jadic . fol. , & . approver . approver ou appel ●● est cestuy que ad fait ascun felony , le quel il confesse , & a ore appel ou approve , cest adire , accuse auters que fueront coadjutors ou a●dors ove luy en fesans , 〈◊〉 ceo ou aut ' felonies , le q̄l chose il voile approver . et cest proof est destre ou 〈◊〉 battail , ou per le pais , a son election que approve . cest accusation est plusors fo ● t s fait devāt le coroner , que ou est assigne al fe ● on per le court a prēder & recorder c̄ q̄ il dit ; ou est appel 〈◊〉 le felon luy mesme , & require pur le bone del prince & publique weale , a recorder ceo q̄ il dirra . le serement del approver quant ● il com̄ence le comba ● , cōe auxy le proclamation per les heraulds , appearont en crompt . pag. ult . si home que est de bone same foit appeal 〈◊〉 un approver , ● q̄ il est prise & deteign en prison , uncore il poit aver un brief destre direct al vicount luy com̄andāt a ● mitter le party appeal deē bail ● bone mainpernors . mes si home appeal 〈◊〉 un approver soit deteign en prison , & apres le approver devie , la il puit sue un brief direct al visc̄ , a ● mitter l ● y de aler a mainprise sur bone surety , fil ne soit notorious felon , com̄t q̄ il ne soit 〈◊〉 bone fame . fitz. n. b. . d. approvers le roy. approvers le roy sont ceux que ont le demiser des demeans le roy deins petits manors le roy pur le plus availe le roy. et des tiels approvers poies veier en le stat. . e. . c. . que fuerōt homes mises en divers counties p̄ encrease les farmes des hundreds & wapentakes . et est a veier en le stat. e. . c. . que les visc̄ appel eux mesmes les approvers le roy. arbitement . arbitrement est un award , determination ou judgement , quel un ou plusors sont al request de deux parties al meines , pur & sur ascun det , trespass , ou auter controversie ewe ● enter eux . et cest appel en latin arbitratus , & arbitrium ; & ils que font le award ou arbitrement sont appel arbitri , en anglois arbitrators . a chesc̄ arbitrement cinq̄ choses sont incident ; sc . matter de controversie , submission , parties al submission , arbitors , & render suis del arbitrement . dier . pl. . si l' arbitrement soit fait , q̄ lun partie alera quit de touts actions que lauter ad vers luy , & riens est dit des actions que il ad vers lauter ; cest arbitrement est void , p̄ ceo que fuit fair de lun part , & nemy de lauter h. . c. . quant un submission a un arbitrem̄t est general 〈◊〉 touts actions , &c. & le arbitrat ' fait un award solement de un , uncore ceo bien poit estoyer ove le generality des parols q̄ la ne fuit forsque un cause dependant ● ent ' eux ; car , generale nihil certi implicat . et si le arbitrem̄t serroit p̄ ceo avoid , donques plusors arbitrem̄ts poient eē void ; car lun poit conceal un trespass fait , ou aut ' cause de action done a luy , & issint avoid l' arbitrem̄t . auxy nul party al asc̄ arbitrem̄t ser̄● ceo lye , finon 〈◊〉 le agard foit a luy deliver , coe est cok. l. . f. . vide cok. l. . f. . arches . arches ( sive curia de arcubus ) est le principal & plus ācient consistory q̄ ap● tain al archevesque de can. & est appel de les arches del e ● glise lou le dit court est tenus , viz. ecclesia b. mariae de arcub e londres . et de cest court mention est fait en stat : h. . c. . touchant appeals . arms. armes , en le intelligence del ley , est extend a toutes choses q̄ un home , en son ire ou furie , prend en sa main pur jetter ou ferier un autre . crom. just . p. f. . a. array . array est le disposing ou ordering du jury ou enquest de hom̄s q̄ sont impannel sur asc̄ cause , h. . c. . de q̄ veint le verb , al arrayer un pannel . vet. n. b. f. . cest adire , a mitter hors un ● aut ' les homes q̄ sont impanel . le array serra quash , ib. per statute chesc̄ array en assise devoit destr̄ fait quater jours devant . brook. tit . panel , num . . a challenge le array , kitch . . arrain . arrain est a mitter un chose en or ● ou en son lieu : sicom̄ il est dit arrain un brē de novel disseisin en un county en que il devoit estre port 〈◊〉 trial devant les justices de cel cireuit . vit. n. b. fol. . et en tiel sense litt. ad use mesme l' parol , le lessee arraign̄ un assise de novel disseisin . auxy un prison̄ est dit destre arraign̄ , quant il est indict & mis a son trial . arrerages . arrerages sont duties arere nient pay apres le jours & temps en que ils fueront dues , & doyent aver estre payes , soyent ils rents de manor , ou ascun auter chose reserve . arrest . arest est quant un est pris & restrain a son liberty . nul serra arrest p̄ det , trespass , detinue , ou auter cause de action , mes 〈◊〉 vertue dun precept ou com̄andment hors de asc̄ court. mes p̄ treason , felonie , ou debruser del peace , chesc̄ hom̄ ad auctoritie ● arrester sans garrantie on precept . et lou serra arrest p̄ felonie , il covient , q̄ ascun felonie soit fait , & que il soit suspect de m̄ le felonie ; ou auterment il poit aver envers luy que issmt luy arrest ū brief 〈◊〉 faux imprisonment . et quant asc̄ hōe est arrest pur felonie , il serra amesne a le goale , la a demurre tanque al ꝓchein session , p̄ estre indict , ou deliver 〈◊〉 proclamation . arretted . arretted est cestuy q̄ est appel devant ascun judge , & charge ove un crime . asc foits cest use pur impute ou laid unto : sicome nul folly puit estre arret a luy que est deins age , lit. cap. remit . cest parol poit vener 〈◊〉 latin parol rectus , car bracton ad cest phrase , ad rectum habere malefactorem , issint que il poit estre charge & mis a son trial . et en aut ' lieu il dit , rectatus de morte hominis . assach . assach semble estre un british parol , & signifie un estrange espece 〈◊〉 excuse ou purgation per les sacraments de trois cents homes . an. . h. c. . assart . assart est un offence commit en le forest per attachment le boys que sont thickets ou coverts del forest & 〈◊〉 feasance de eux cy plain com̄ le ter̄ arable . cest assart del forest est pluis grād offence ou trespass q̄ puit estr̄ fait en le forest al vert ou venison conteignont en ceo wast , ou pluis : car ou waste del forest nest forsq̄ le felling & succiding del covert boys , q̄ poit en temps recrescer ; un assart est un arrachm̄t 〈◊〉 le root , 〈◊〉 q̄ ils ne unques poiēt crescer . manw. part . . cap. . n ● . . un brief 〈◊〉 ad quod dampnum poit estre agard , lou un home voile sue pur un licence dassart son ter̄ deins le forest , & faire c̄ several pur agriculture ; issint que nest asc̄ offence sil soit fait per licence . regist . orig . f. . assault . assault ( du francois assaillir ) signifie un violent facōn de injurie offer a la person de un hōe , 〈◊〉 un nature plus extēdue q̄ battery ; per ceo q̄ il poit estre cōmis en offrant un coup , ou 〈◊〉 les parols menaceants . lamb. eiren. l. . cap. . assayer . assayer est un officer del mint appoint per le statute h. . c. . destre present al receit del bulliō , come un party indifferent enter le master del mint de le merchant pur determine le uray value de bullion solonque le ley. assets . assets est en deux sorts ; lun appel assets per deseent , laut ' assets enter maines . assets per des ● ent est , lou un home est oblige en un obligation , & morust seisie de terres en fee-simple , queux descend a son heir , donques cest ter̄ serra appel assets , cest adire , sufficient de payer cest dett ; & 〈◊〉 cest means le heir serra charge cy avant q̄ le ter̄ issint a luy descēd voil stretch . mes sil alien devant que le obligation soit mise en suit , il est discharge . auxy quant un home seisie de ter̄ en tail , ou en droit ● son feme , alien ceo ove garranty , & ad en value tant terre en fee-simple , que descend a son heir , q̄ est auxy heir en tail , ou heir al feme : ore le heir , apres le mort son ancestor , port ū brief de formedon , ou sur cui in vita , p̄ le terre issint alien ; donques il serra barr̄ , per reason dun garranty , & terre issint descend , que est tant en value come ceo que fuit vende , & issint per ceo il nad receive ascun ● judice . pur ceo cest terre est appel assets per descent . assets enter maines , est quāt un home en dett ( com̄ devāt est dit ) fait executors , & relinquist a eux sufficient de payer ou ascun com̄odity ou ꝓfit est venus al eux en droit lour testator ; cest appel asets en lour maines . assignee . assignee est celuy a que un chose est appoint ou assign̄ destre occupy , pay , ou fait ; & est touts foits tiel person que occupy ou ad le chose issint assigne en son droit demesne , & p̄ luy mesme . et ● assignees il y sont deux sorts , nosment , assignee en fait , & assignee en ley. assignee en fait est , quant un lease est grant al un & a ses assignees , ou sans cest parol , assignees , & le grant ' done , grant , ou vend le dit lease al aut ' , il est son assign̄ en fait . assignee en ley est chesc̄ executor nosme per le testator en son testam̄t . cōe si un lease soit fait al ū home & a ses assignees , ( sicome est avantdit ) & il fait ses executors , & morust sans assignm̄t del lease al asc̄ auter ; les executors avera mesme le lease , p̄ ceo q̄ ils sont ses assignees en ley. et issint est en autors semblables cases . assise . assise est un brē que gist ou asc̄ hoane est mis hors de son ter̄ ou tenements , ou 〈◊〉 asc̄ ꝓfit & prender en certain lieu & issint disseisie 〈◊〉 son franktenem̄t . franktenem̄t a asc̄ hōe est , lou il est seisie 〈◊〉 terr̄ ou tenem̄ts , ou ꝓfit a prē● er en fee-simple , fee-tail , pur term de son vie demesne ou p̄ aut ' vie . mes tenant ꝓ elegit tenant 〈◊〉 stat. merchant & stat. staple poiēt aver assise , com̄t que ils nont franktenement ; & cest ordein per divers statutes . en assise il covient touts ● oits que il soit un disseisor & un tenant , ou auterment le brief abatera . auxi lou un hōe est disseisie , & recovera 〈◊〉 assise de novel disseisin , & puis est auter folts disseisie 〈◊〉 mesme le disselsor , il avera vers luy un brief 〈◊〉 redisseisin directe al visc̄ de faire inquisition ; & si trove soit le redisseisin , il serra mis en prison . aux ' si home recovera per assise de mortdauncastor , ou 〈◊〉 aut ' jury , ou 〈◊〉 default , ou 〈◊〉 reddition , & sil soit auterfoits disseisie , il avera donques ū brief de post d ● sseisin ; & cestuy q̄ est pris & imprison p̄ redisseisin , ne serra deliver sans especial com̄andm̄t le roy. vides les statutes mert ● n c. . mar ●● bridge c. . & westminster . c. . auxi il est un aut ' assise , nosm assise de fresh force , & gist lou hōe est disseisie 〈◊〉 tenem̄ts queux sont devisables , cōe en le city de londres , ou auter boroughs ou villes que sont enfranchises ; donques le defendant viendra ē le court del dit ville , & enter son plaint , & avera un brē direct al major ou bailiffs &c. & sur ceo passera un jury en manner de assise de novel disseisin . mes il covient q̄ il ent ' son plaint deins quadragint jours , ut dicitur , ou aut'm̄t , il serra misse a le com̄on ley. et si les ministers delay execution , donques le plaintiff avera un auter brief daver execution , & sicut alias , & un plures , &c. vide littleton cap. . assise de darreine presentment . assise de darrain presentment . vide quare impedit . auxi est un assise de nusance appel assisa nucumenti . assisa ultimae praesentationis . assise de mortdancestor . assise de mortdancesior , vid. tit. cosinage . association . association est un patent mis 〈◊〉 le roy , ou de son motion demesn̄ , ou al suit del party plaintiff , al justices de assise , pur aver auters ꝑsons associes al eux de prender le assise : et sur ceo patent de association , le roy mander̄ son brē as justices de assise , eux com̄andant ꝑ icel de eux admitter q̄ sont issint mis. si le roy fait trois justices đ assise , & puis un de ceux devie , ore le roy poit faire un patent a un auter de association , de associer luy a les deux , en lieu de cestuy que est mort ; & un brief , que serra close , direct a les deux justices que sont en vie , đ luy admitter . f. n. b. . assoyl . assoyl venust del latine absalvere , & signifie pur bail ou discharge ascun del excommunication ; & issint est use per stamford , pleas de coron . lib. . cap. . fol. . b. assumpsit . vide nude contract . assumpsit est un voluntary promise fait per parol , ꝑ q̄ home assume ou prist sur luy a payer ascun chose al auter . cest parol contein en ycel ascun verbal promise fait sur consideration , que les civilians expresse per plusors parols , accordant al nature del promise ; ceo appellant asc̄ foits pactum , promissionem , auter foits sponsionem , pollicitationem , ou constitutum . attach . attatch est un prisure ou apprehending 〈◊〉 com̄and ou brief . la sont ascuns d ● fferences perenter un arrest & un attachment ; car un arrest proceed hors del inferiour courts per precept , & attachment hors del superior courts 〈◊〉 precept ou brief . lamb. eiren. lib. . cap. . auxy un arrest gist solement sur le corps 〈◊〉 un home , lou uu attachment est ascun foits sur ses biens solement ; come kitch fol. . b. dit , que home poit attach un vache , & en auter lieu , que home poit estre attach per . barbits ; & il est ascun foits agard sur le corps & biens ensemble al un & m̄ le temps . attachment differ a un capias , car kitchin fol. . b. ad ceux parols , nota que en court baron home serra attach per biens , & ne issera capias la : per que il semble attachment est pluis general , extendant al prisure des biens , lou capias extend al prisure del corps solement . un attachment differ a un distress , come appiert per kitch . fol. . a. ou il dit , process en court baron est summons , attachment , & distress , que sont processe al common ley. la est auxi un attachment de priviledge : & ceo est en deux mann̄s ; ou donant poyer ● apprehender un hom̄ en un lieu priviledge , ou 〈◊〉 vertue dun office ou priviledge ; com̄ de appeller un aut ' a cel court a q̄ il mesm̄ est attendant , ct en respect de quel il est priviledge . novel livre de entries , fol. . a. et la est process appel foreign attachment , q̄ est use al attacher les biens del foreigners trove diens ascun liberty ou city , pur un dett due al party mesme . et 〈◊〉 le customs dascūs lieus , hom̄ poit attach biens en les maines dun estranger : come si a. devoit al b. livres , &c. devoit al a. un auter sum de argent , b. poit attacher les biens de a. en les maines de c. a luy satisfier ou en part ou en tout , come le dett est . auxy la est attachment del forest , que est un court la tenus chescun jours per tout le an : en que le verderors nont ascun auctority , forsque de receiver & inroller les attachments del offenders encounter vert & venison prise per les auters officers , q̄ ils poiēt eē present al prochein justice seat ē eyre manwood part . p. . cap. . attainder . attainder est un conviction dascun person dun crime ou fault dont il ne fuit convict devant : sicome un home fait felony , treason , ou tiels semblables , & de ceo est indi ● , arrain̄ , & trove guilty , & ad judgment , donques il est dit destre attaint . et ceo poit estre deux voyes ; le un sur appearance , le auter sur default . le atta nder sur appearance est per confession , battel , ou verdict : le attainder sur default est per process tanque il soit utlage . attaint . attaint est un brief que gist lou faux verdict est done per douze homes , & judgment done sur ceo , donques le party vers que ils avoient pas , avera cest brief vers les douzes homes ; & quant ils sont a issue , il ferra trie per vint quarter jurers , & si faux verdict soit trove , les douz jurors sont attaint ; & donques le judgment serra , que lour prees serront eyrs , lour measons debruses , lour bois subvertes , & touts lour terres & tenements fo ● feit al roy : mes sil passa encounter celuy que port cest attaint , il serra imprison , & grievousment ransom al volunt le roy. vide le stat ● hin . . cap. . attaint auxy est quant judgment est done en treason ou felony . attendant . attendant est ou un doit un duty ou service al a ● ter , ou cōe il fuit depend sur auter : come si la soit seignior , mesme , & tenant , le tenant tient del mesne pur ū denier , le mesne tient ouster 〈◊〉 deux deniers , le mesne release al tenant tout le droit que il ad en le terre , & le tenent morust ; sa feme serra endow del terre , & el serra attendant al heir del tierce part dun denier , & nemy del tierce part del deux deniers ; car el serra endow del mieux possession de sa baren auxi ou le feme est endow 〈◊〉 le gardian , el serra attenaant al gardian , & al heir a son plein age . attournment . attournment est , quant un est tenant pur term de vie , & cestuy en l'reversion ou remainder grā● a son droit ou estate a un aut ' , donques il coviēt q̄● e tenāt p̄ vie agree a ceo ; & cest agreement est appel attournment . car si cest ● y en le reversion grant son estate & son droit a ū auter , si le tenant p̄ vie ne attourna , riens pas 〈◊〉 le grant . mes sil soit grant per fine en court de record , il serra compel 〈◊〉 attourne . et vide de ceo apres , titulo quid ●● ris clamat , & littl. lib. . cap. . atturney . atturney est un designe per auter home a faire ascun chose en son lieu , le quel ● est issint ad define , atturneys sont tiels persons q̄ per consent , commandment , ou request , caveont , veieront al , & prendront sur eux le charge de besoigns de au ● ers homes en lour absence . et lou en ancient temps ceux 〈◊〉 authority ē courts ōt aver ceo ē lour arb trem̄t , ou ils voilent ● mitter homes de appearer ou suer 〈◊〉 ascun aut ' q̄ eux mesmes , come appiert ● f. n. b. . en le brief de dedimus potestatem de attornato faciendo , ou il est monstre , q̄ hom̄s fuer̄ chase a procurer les briefs ou letters patents del roy , al appointer atturneys pur eux ; il est ore provide ● divers stat. q̄ il serra loyal issint a faire sans asc̄ tiel circuit . et la est grād diversity de briefs ē le table del register , ● q̄ le roy com̄and ces judges al admit ' 〈◊〉 atturnys . per quel meās al darrein la fueront cy plusors imperite atturneys , & cy plusors mischiefs ● eux , q̄ un act fuit h. . . ordeigne p̄ lour restraint que les justices examineront eux , & mittront hors le imperites : & an. h. . c. . q̄ la ne serront mes un certain number de eux en norfolk & suffolk . en queux cas ● s home a cest jour poit aver ū atturney & en queux nemy , veies f. n. b. en le lieu devant cite . atturney est ou general , ou special , atturney general est cestuy que est designe a touts nostre affaires ou suits , com̄ le atturney general del roy , atturney general del duke , crom. . atturney special ou particular est cestuy que est imploy en un ou plusors choses particularm̄t specifies . atturneys gēeral sont faits deux voyes , ou per les letters patents del roy , on per nostre appointment devant justices en eyre en overt court. veies glan . l. . c. . brit. . curia de audience . curia de audience est un cur̄ appertient al archevesque de canterbury , de legal authority ; avec le curia de arches , bien q̄ inferieur en digni ● y & antiquity . de quel vous pois lire pluseurs en un livre entitule , de antiquitate ecclesiae britannicae historia . audita querela . audita querela est un brief que gist lou un est oblige en un estatute-merchant , estatute-staple , ou recognisance , on lou judgm̄t est done vers luy p̄ dett , & son corps en execution sur c̄ ; donques sil ad un releas , ou aut ' sufficient matter destr̄ discharge del execution , mes nad jour en court de ceo pleader , donques il avera cest brief vers cestuy que ad recover , ou vers ses executors . auditeur . auditeur est un officer del roy ou del auter grand person , que per annuel examination del accounts de tout inferior officers accountable , fait un general livre , que monstre le difference perenter lour receptions ou charge , & lour payments ou allocations . veies le stat. h. . c. . est auxy un auter sort ● auditors assigne 〈◊〉 asc̄ court en quel un defendant est adjudge ● accounter , queux pristeront l'account , & mise ceo en form en escript , & donque ceo est enrol , & le plaintiff plede a ceo , & le defendant reply si mistier soit , & issint aleront al issue sur divers points & particulars del account . average . average est le service que le tenant doit a son seign̄ , destre fait 〈◊〉 les avers le tenant : & semble destre derive del parol averia , p̄ ceo que est le service que les avers le tenant ● form pur le seignior 〈◊〉 carriage ou auterment . auxy ceo parol ad un auter signification , & est mult use en le statute h. . c. . pur un certain contribution , que merchants & auters payont proportionalment pur les perdes de eux que ont leur biens ejects en un tempest p̄ le safe-guard del niefe ou des biens & vifes de eux que sont en le niefe . averment . averment est , lou un home plead un plea en abatement del brief , ou barr̄ de action , que il dit est prist de prover come le court voit agard . cest offer de prover son plea est appel un averment . auxy est un brief appel brief de averment , que est fait hors ● ascun court del ley a westminster sale , ou un action depend quant le viscount sur un distringas returne petits issues donques les judges al assises poit cause ceo destre enquise 〈◊〉 un jery si le viscount poit returne pluis issues des terres le defendant , & si soit trove q̄ il poit , donques il doit returne pluis issues a compel le defendant de appear al suit del plaintiff , ou a faire ceo que le distringas require luy a faire . averpeny . averpeny est , quietum esse de diversis denariis pro arreragiis domini regis . augmentation . augmentation suit le nosme de un court erect en le an. del roy henry le huict . et le cause de ceo fuit , q̄ le roy puit estre vierment use touchant les ꝓfits de tiels religious measons & lour terr̄ que fueront done a luy 〈◊〉 act ● parliam̄t mesme le an . nient imprimee . pur le dissolving le quel court le fuit un act sait en le parliament tenus en le prim̄ an del reign del roign mary , sess . . cap. . que el puis mis en execution per sa letters patents . le nosme del court surde 〈◊〉 ceo , que les revenues del corone fueront tant augment ● le suppression des dit measons quant le roy reserve al corone , & nient done ou vende al auters . mes le office de augmentation remain a cest jour , en que la sont plusors records de grand use & importance . aumone . aumone , ou tenure en almoin , est tenure per divine service ; car issint brit. dit , fol. . tenure en aumone est terre ou tenements do ● e a aumone , dont ascun service est retenue al feoffor ou donor . auneel weight . auncel weight fuit un ancient manner de poiser en angleterre , 〈◊〉 le pender des balences hooks al chescun fine ● un baston , le quel le party elevate sur son digit , ou ove sa main , & issint discerne le equality & difference des choses poises . mes ceo weight esteant subject al mult deceit , divers statutes fueront faits q̄ ceo ouster , com̄ le statute e. . c. . & e. c. . & h. . c. . & auters . et fuit appel auncel weight , quasi handsale weight . auncient ou ancient demesne . ancient demesne est un certain tenure per quel touts ceux manors queux fueront en maines de s edward le confessor , & les queux il fist escrier en un livre appel dooms-day sub tit ● lo regis , & touts les ter̄ tenus de dit manors sont tenus ; & les tenāts ne serra implead hors del di ● mannors , & sil soyent , ils poyent monstre le matter , & abater le brief : mes sil responder al brief , & plead , & judgment soit done , donques les terre sont devenus frank-see a touts jours , tantque ceo judgment est reverse per brē de disceit . rast . ent. , . r. . . h. . . e. . . auxy touts tenants ē ancient demesne sont frank 〈◊〉 tolle p̄ touts choses concernont lour viand & husbandrie en aucient demesne , & p̄ tiels terres ils ne serra mis ne empan̄el sur asē enquest . mes touts les terres en anciēt demesn̄ queux sont en maines le roy sont frank-fee , & pleadable al com̄ ley. veies plus apres en le title sokmans . avoir de pois . avoir de pois est tant adire , veri sive justi ponderis ; et signifie en nostr̄ ley deux choses ; primerment , un kind 〈◊〉 pois different 〈◊〉 ceo q̄ est appel troy weight , que nad forsque ounces al liver , lou le avoir de pois contein . secondment , signifie tiel merchandises queux sont poises ● cest weight , & nemy per troy weight . come est a veier en le stat. de york , e. . & e. . c. . stat. . c. . & le stat. 〈◊〉 glocester , r. . c. . avowrie . avowrie est lou un prist distress pur rent ou auter chose , & lauter sua replevin ; donques celuy que avoit ceo prise justifiera ē son plea pur quel cause il prist ceo : & si il prist ceo en son droit demesne , il doit ceo monstre , & issint avow a le prisel , & ceo est appel son avowrie . mes sil ceo prist en ou p̄ droit ● un auter , donques quant il avoit monstre le cause , il ferra conusance del prisel , come bailif ● ou servant a celuy en q̄ droit il prist ceo . avowterer . avowterer est un adulterer ove que un feme covert continue en adulterie , le crime est appel avowtry . e. . . awme . awme est un vessel que conteine broces de vine rhenish & est mention en statute fait jac. . b backberind thief . backberind thief est un laron prise ove le man̄ , cest adire , aiant ceo trove sur luy ( esteant pursue ove le hue & cry ) le quel il ad emblee , soit il mo ● ey , linen , woollen , ou aut ● stuff : mes il est pluis ꝓpermm̄t dit , quant il est prise portant tielx choses q̄ il ad emblee en un bundle ou fardel sur son dorse . manwood en part . ceo note 〈◊〉 un des quater circumstances ou cases en que un forester poit arrest le corps ● asc̄ offender encounter vert ou venison en le forest ; q̄ux sont , dog-draw , s ● able-stand , back-berind , & bloody-hand . badger . badger est tant adire com̄ bagger , del francois parol baggage , id est , sarcina : et est use ove nous p̄ un que est licence de achater corn ou auters victuals en un lieu , & de eux transporter al auter ; & tiel home est exempt en le statute fait an. & e. . cap. . del punishment ● un ingrosser deins ceo statute . baile . bail est , quant ū hom̄ est prise ou arrest p̄ felony , suspition 〈◊〉 felony , indict ● felony , ou asc̄ tiel case , issint que il est restraine 〈◊〉 son libertie , & esteant 〈◊〉 le ley bailable , offera surety al eux q̄ ont auctority de luy bailer ; queux sureties sont oblige p̄ luy al use le roy en certain sum̄ 〈◊〉 argēt , ou corps p̄ corps , q̄ il appiera devant les justices ● goal-delivery al prochein sessions , &c. donques sur les bonds 〈◊〉 ceux sureties ( come est avantdit ) il est bail , cest adire mis al liberty , tanque le jour appoint p̄ son appearance . manwood in le prim̄ part ● son forest ley , pag. . dit , que la est ū grand diversity ● ent ' bail & mainprise ; car ceftuy que est mainprise est touts foits dit destre a large , & daler a son liberty demesn̄ hors de gard , puis q̄ il est mis al mainprise , jesque le jour ● son appearāce , 〈◊〉 reason 〈◊〉 cōmon sum̄ons , ou auterm̄t mes nest issint ou home est mis al bail 〈◊〉 quat ' ou deux homes , ● le sn̄r chief justice en eyre del forest , jesque un certain jour : car la il est touts foits account 〈◊〉 le ley deē en lour gard & custody p̄ le temps , & ils poient , sils voilont , tener luy en gard ou en prison au c̄ temps , ou auterm̄t a lour volunt : issint q̄ il q̄ est bail ne serr̄ dit 〈◊〉 le ley deē a large , ou a son liberty demesne . bailement . bailment est un delivery de choses , soyent ils escrips , biens , ou stuff , al auter , ascun foits destre redeliver arrere al bailor , cest adire , al celuy q̄ issint deliver , ceo asc̄ foits al use del bailee , cest adire , de luy a q̄ il est deliver ; & asc̄ foits auxy il est deliver a ū tierce person . cest delivery est appel un bailment . bailiff . bailiff est un officer que appertient a un mannor , p̄ order le husbandry , & ad authority de payer quit-rents issuant hors del man̄or , succider arbres , repair les measōs , faire pales , haies , distrain avers damage feasant sur le terr̄ , & divers tiels semblables . cest offic̄ est celuy que les ancient saxons appel ū reeve , car le nosme bailiff ne fuit donques conus enter eux , mes vient ' eins ove les normans , & est appel en latin villicus . la sont deux aut ' sorts de bailiffs , cest adire , bailiffs errant , & bailiffs de franchises . bailiffs errant sont ils q̄ le vicount fait & design daler ēviron le county a executer briefs , a summon le county sessions , assises , & tiels s ●● blables . bailiffs de franch ●● sont tiels que sont desig ●● chescun sn̄r deins son 〈◊〉 berty , a faire tiels offices deins son precincts q̄ le 〈◊〉 errant fait a large en le county . cest bailiff distrain pur amerciaments assesse en les courts tenus deins le mannor de quel il est bailiff . mes si ti ●● court est 〈◊〉 prescription 〈◊〉 tenus deins un mois apres 〈◊〉 feast , & le seneschal 〈◊〉 ceo apres le mois , & en 〈◊〉 court assesse un fine ou amerciament , & le bailiff distrain p̄ ceo ; le party q̄ est 〈◊〉 sint distrein puit aver ū 〈◊〉 de trespass vers le bailiff . bank. bank ( en francois banque , ● . mensa ) est usualment pri ● pur un selle ou bank 〈◊〉 judgment ; come bank le rey , bank de common pleas , 〈◊〉 common bank , kitchin fol. . appel auxy en latin bancus regius , & bancus communium placitorum . crompt . jur. fol. , & . bank le roy. bank le roy est un court a westminster lou les pleas del corone , debts , trespasses & personel actions , errors , audita quer ● la , &c. sont determine . bankrupt . bankrupt , per le statute jac. c. . est issint describe ; touts & chescun tiel ● son & persons , usāt , ou q̄ useroit le trade de merchandise ● voye 〈◊〉 exchanges , barterie , chevisāce , ou auterm̄t ē gross , ou 〈◊〉 queront son , sa , ou lour trade de viver 〈◊〉 emption eu vēditiō , & esteant un subject nee de cest realm , ou asc̄ des dominion del roy , ou denizē , q̄ al ascun temps citra le p ● im̄ jour 〈◊〉 cest pre ● ēnt parliam̄t , ou al asc̄ tēps ē apres departer a le royalm , ou com̄ence a retain̄ son ou sa meason ou measons , ou auterm̄t 〈◊〉 absent ' luy ou sa m̄ , ou prendra sanctuarie , ou suffer luy , ou sa mesme volūtarim̄t destr̄ arrest 〈◊〉 asc̄ debt , ou asc̄ chose niēt cressant ou due p̄ argent deliver , wares vend , ou asc̄ aut ' just ou loyal cause , ou bō cōsiderac̄ ou purposes , cu ad ou voile suffer luy ou sa m̄ destre utlage , ou dō luy ousa m̄ al prison , ou volūtarim̄t ou fraudulētm̄t ad ou ꝓcurera luy ou sa mesme deē arrest , ou ses ou sa biens , argent ou chattels , destre attach ou sequestre , ou departera de son ou sa meason inhabit , ou faiera ou causera destre fait ascun fraudulent grant ou conveyance de son , sa , ou lour terr̄s , tenements , biens ou chattels , al entent ou 〈◊〉 q̄ son , sa , ou lour creditors , esteant subjects nee , come avantdit , serra ou poient estre defeat ou delay per le recovery de lour just & voyer dett , ou esteant arrest p̄ dett , apres son ou sa arrest gisera in prison siz moys ou pl ' sur cē arrest , ou ascun aut ' arrest ou detenc̄ en prison pur dett , & gisera en prison size moys sur tiel arrest ou detention , serra accōpt & adjudge ū bankrupt a chescū intents & p̄poses . veies le stat. car. . ca. . banneret . banneret est un chivaler fait en le campe , ove le ceremony del amputer le point de son standard , & feasant ceo sicome un banner . et tiels sont allows pur display lour armes en un banner en le army le roy , come barons font . et que tiels fueront ꝓcheins as barons en dignity , appiert ꝑ le statute fait en le an đ r. . state. . ca. . ꝑ quel statute semble que tiels bannerets fueront ancientment appels per summons al parliament . bannum . bannus sive bannum est un parol frequent & ordinary enter les feudists , & signifie un proclamation , ou asc̄ publiq̄ notice don̄ đ asc̄ chose . bra. l. . tra . . cap. . fait . mention de banno regis p̄ un proclamation , ou silence fait ꝑ le crier devāt le congresse des champions en un combat . mes nous nosm̄ cest parol banns principalm̄t p̄ le publication des contracts matrimonial en les esglise devant marriage . bargain & sale. bargain & sale est , quant un recompence est done ꝑ ambideux les parties al bargain : com̄ si un bargain & vend son ter̄ al auter p̄ argēt , icy le ter̄ est un recompence a luy p̄ le argent , & le argēt est un recompence al aut ' p̄ le terre ; & ceo est un bone contract & bargain . et per tiel bargain & sale terres poient passe sans livrie de seisin , si le bargain & sale soit per fait indent , seal & inrolle , ou en le county lou le terre gist , ou en un des courts del roy de record al westminster , deins size moys prochein apres le date de mesme le escript indent , &c. accordant al statute en ceo case fait en le an . ● h. . cap. . barcary . barcary signifie un farm meason come semble , rast . ent. tit. assise en corps politique barmote . barmote sont divers courts nient de record deins le hundred del peak in derbyshire pur le regulation des groves , possessions & trade del miners & plumb . barony . barony est quoddam dominium regale ubi breve domini regis non currit , & tentum de domino rege . rast . ent. tit. assise en office . barr. barr est , quant le defendant en ascun actiō pleade ū plea q̄ est un sufficient respons , & ceo adnulle l'action de plaintiff a touts jours . et ceo poit estre divide en barr al common intendment , & barr special . barr al common intendment est un ordinary ou general barr , que communement disable le count ou plea del plaintiff . barr special est ceo que est pluis que ordinary , & happa en le case en question , sur ascun special circumstance del fact : come un executor , esteant sue p̄ le dett de son testator , plede que il ad riens en ses maines al jour quant le brief fuit purchase ; ceo est un bone barr al common intendm̄t , ou prima facie : mes uncore le case poit estre tiel , que plusors biens poient ven̄ a ses maines puis cel temps , que si le plaintiff poit monstre per voy de replication , donq̄ sinon que le defendant ad un pluis special plea ou bar 〈◊〉 alledger , il est desire condempne ē l' action . veies plow , fo . , . et en mesme le sense bar̄ est auxy divide ē barr material ou special , & barr alarge . kit. fo . . barr est auxy en regard del effect divide en barr perpetual , & barr temporary . perpetual est ceo que quash le action a touts jours : temporary est ceo que est bone pur le present , & puit apres faller : come , plene administravit est bone barr jesque puit appearer q̄ plusors biens viens puis al maines des executors : queux auxy tient p̄ le heir , que en un acc̄ de son ancestors dett plede reins p ● r discent . veies brook tit . barr. nu . . barr fee. barr fee est un fee de vint deniers , q̄ chescū prisoner q̄ est acquit de felony , paler̄ al viscount ou gaolar : & de ceo veies h. . . b. barretry . est un parol use en pollices 〈◊〉 insurance , & signifie dissentions & quar̄els ꝑenter les offic̄ & seamen . barretor . barretor est common mover , excitor , ou maintainer de suits , quarrels , ou parts , ou en courts ou en pays : en courts de record , & en le county , hundred , & aut ' inferior courts : en pays , en trois manners ; primerm̄t , en disturbance del peace , secondm̄t , en prisel ou deteiner des possessions des measons , terr̄ , ou biens , &c. q̄ sont en question ou controversie , non solem̄t ꝑ force , mes auxy ꝑ subtilty & deceit , & pluistost en suppression de verity & droyt ; tercem̄t , ꝑ faux invētion & sowing 〈◊〉 calumniations , rumors , & reports , faisant discord & disquiet surg ' inter ses vicines . veies pluis ● ceo , co. lib. . fol. , . barter . barter semble de vener del francols parol barate ( i. e. ) circumvenire : & cest parol est use ove nous pur le exchange des wares pur wares , & est mention en les statutes r. . cap. . & ; eliz. cap. . base fee. tener en fee base est , a tener a volunt le seignior . et un base fee est auxy lou ascun ad estate en terre ꝑ cy longe temps come auter avera heirs de son corps ; de quel estate veies plow . en walsinghams case fol. . bastard . bastard est celuy que est nee de ascun feme nient espouse , issint que son pere nest conus per le order del ley , & pur ceo il est dit filius populi . quant especial bastardie est alledge , il serra trie ꝑ le pays , & nemy per l'evesque . mes generalment bastardie alledge serra trie per le certificate del evesque . et si un feme soit grosse de enfant per son baron , que morust , & el prist auter baron , & apres le enfant est nee , cest enfant serra dit le enfant de primer baron . mes si el fuit privement enseint al tēps del mort sa primer baron , donques il serra dit le enfant de second baron . sed quaere , & veies le opinion de thorp , e. . . auxy si hom̄ prent feme que soit grossement enseint ꝑ ascun auter que ne fuit sa baron , & apres le enfant est nee deins les espousels ; donques il serra dit le enfant de baron , mesque il fuit nee forsque un jour apres les espousals . baston . baston est un parol francois , & significat baculum ; mes en nr̄e statutes est prise pur un des servants del gardein le fleet , q̄ attend les courts le roy ove un colored baston , pur le prender 〈◊〉 eux al gard que sont com̄ise 〈◊〉 le court , & pur le attender sur eux q̄ esteāts prisōners sōt ꝑmises ꝑ aler alarge 〈◊〉 licēce . et issint est use en le statutes r. . c. . & eliz. c. . battail . battail est un ancient trial en nostr̄ ley , q̄ le defendant en ū appeal 〈◊〉 murder , robbery , ou felōy , poit eslier cestascovoir , a combater ove l' appellant , pur proof sil soit culpable del felony ou non : quel combate sil succeed cybien del part le defendant , que il vanquish le appellant , il alera quit , & luy barrera de son appeal a rout jours . mes si un soit indict de felony . & un appeal est port sur mesme le indictment , la le defendant ne gagera le bartall . battail auxy poit estre en un brief de droit , come est en paramour's case , dyer , . pla . , . ou les champions fueront eslies , & la battel agard , & les champions fueront 〈◊〉 mainprise & jures de performer le battel al totchil en westminister ; mes per default de appearance en le demandant riens fuit fait en ceo . batterie . batterie est un act que tend al breach del peace del royalm ; sicom quant un home assault & batter ū auter , ceo est encounter le ley & peace del royalm , le quel ordeigne , que nul hom̄ serra son judge demesne , ou revēger de son private tort , mes ceo laisera al censure del ley , que est touts foits prist de oyer & redresser les droitural & just querels de chescun hom̄ : pur q̄ cestuy q̄ est issint assault poit ou inditer lauter party , que sur ceo serra sin̄ al roy , ou aver son actiō● trespass de assault & battery vers luy ( car chescun battery imply un assault ) & recover tant en costs & damages que le jury voile doner a luy per lour verdit ; & le defendant sur cest indictm̄t ferra fine al roy , & le action ● trespass voile giser cybien devant come apres le indictment . mes si le plaintiff en tiel action fist le prim̄ asfault , donques le defendant alera quit , & le plaintiff serra amerce al roy pur son faux suit. et est destre observe que le record del conviction del party per indictment poit serve p̄ evidence en le action de trespass port sur mesme le assault & battery . mes nient obstant que le party avera un double punishm̄t p̄ tiel offence , cest adire , serra , punish al roy & al party ; uncore ascuns y sont que en respect de lour natural , & auters q̄ en respect ● lour civil power & auctority ouster aut ' , ē un reasonable & moderate man̄er poiēt eux chastiser , correcter , & batter ; come le parent lour puer , le master son servant ou apprentice , le goaler ou son servant les turbulent prisōers , le offic̄ cestuy q̄ est arrest , & ne voile autm̄t obeyer . auxi hom̄ poit justifie le batture dū auter ē defence 〈◊〉 son persō demesn̄ , ou 〈◊〉 l' quesō 〈◊〉 sō fem̄ , pere , mier̄ , ou maister . et hom̄ poit justifie le batture que ū aut ' en defence 〈◊〉 ses biens , & en maintenance de justice . mes est destre note , que en ceux cases , si hom̄ ne soit urge & constrain per un necessary cause , il ne poit justifie le fait . beacons & seamarks . sont fews maintain sur les coasts del mere a preventer shipwracks & invasions . co. . inst . . order ● commissioners del roy. bedell . bedell est derive del francols parol bedeau , q̄ signifie le messenger dum court , ou un q̄ cite homes a ceo pur appear & responder . et manwood ca. . f. . a. dit , que un bedell del forest est un officer que ala per tout le forest semble al special bailiff le viscount . est auxy un collector des rent p̄ le roy. plo. com. . . benefice . benefice ( beneficium ) est generalm̄t pris pur ascun living ecclesiastiq̄ , soit dignitie ou aut ' : come an. . r. stat. . c. . ou benefices sont devise en elective , & de don . besaile . besaile est un brief que gist pur le heir ; lou son besaile fuit seisie jour que il morust , ou morust seisie de terre en fee-simple , & un estranger enter jour del mort le besaile , ou abate apres son mort , le heir avera cest brief vers tiel disseisor ou abator : & veies de ceo fitzh . n. b. . d. bewpleadre . bewpleader est un brief sur le statute de marlebridge , & gist ou le viscount ou auter bailiff en son court voile prender ū fine del party plaintiff ou defendant , p̄ ceo que il ne pleadera bellement , &c. et le brief serra direct al viscount mesme , ou al bailiff , ou cestuy q̄ voil demand cest fine ; & est come un prohibition a luy , com̄andant luy que il ne demandera tiel fine , & puit estre sue ꝑ tout he hundred , ou per tout le county , come semble , lon il voile demand tiel manner ● fine 〈◊〉 eux . fitz. n. b. . a. bigamie . bigamie fuit un counterplea object quant le prisoner demand le benefit del clergie , cestascavoir , son livre come nosmement , que il que demand le priviledge del clergie fuit marrie a tiel feme en tiel lieu , deins riel diocesse , & que el est mort , & q̄ il ad apres marrie un auter feme deins mesme le diocesse , ou deins ascun auter diocesse , & issine bigamus . ou sil nad estre forsque un temps marrie , dōques adire , q̄ el que il espouse est , ou fuit un viefe , cest adire , la relict dun tiel , &c. le quel chose serra trie per le evesque de le diocesse ou le epousels sont alledge . et esteant issint certifie ꝑ le evesque , le prisoner ꝑdera le benefit del clergie . mes al cest jour , per force de le act fait e. . c. . cest nul plea , mes que il puit aver son clergie ceo nient obstant . lisint est brook. titulo clergie , placito , . al mesme purpose . by-laws . by-laws sont orders faits en court-leets ou court-barons ꝑ le com̄on consent p̄ le bien 〈◊〉 eux . et sont les feasors de eux q̄ sont appels by-laws , quasi birlaws , ou bawrlaws , de parol germanols bawr , id est , rusticus ; issint que bawrlaws ou by-laws est tant adire com̄ leges rusticorum . bilinguis . bilinguis en general est un hom̄ ove ū double langu ; un ●̄ il est com̄unem̄t use pur cest jury q̄ passont perenter un home 〈◊〉 angleterre , & un alien de que part convient ● ē homes de angleterre , & part estrangers . et p̄c ● o est enact ꝑ le statute 〈◊〉 e. . c. . que si asc̄ debate happa destr̄ sur le packing de lane devant le major del staple , ent ' les merchants ou ministers del mesme , sur ceo , de prover la veritie de ceo , enquest serra prise : & si lun partie & laut ' soit denizen , il serra trie per denizens ; ou si lun partie soit denizen , & lauter al ● en le moiety 〈◊〉 l'enquest ou del proof serra d●nizens , & lauter moiety d ● aliens . bill . bill est la mesme chose ove un obligation , f ● rsque quant il est en anglois , il est com̄unement appel un 〈◊〉 en latin , un obligation . auxy un declaration en escript , q̄ expresse ou le grievance & injury que le plaintiff ad su ●● er ꝑ le partie de q̄ le plaint est fait , ou asc̄ fault ꝑ luy com̄se contre asc̄ ley ou statute de le royalm . per un bill nous maintenant entendons un single bond sans condition ; ꝑ un obligation , un bond ove un penalty & condition , west . part . . symbol . tit . supplications , sect . . billa vera . billa vera est le endorsement del grand inquest sur ascū presentm̄t ou indictment q̄ ils trovont estre probablement voyer . blackmail . blackmail est un parol use en le stat. eliz. c. . & signifie ū certain rate des deniers , blees , cattel , ou auter cōsideration , don̄ ꝑ les povers homes en le north parts de angleterre , as homes 〈◊〉 grand nosm̄ & alliance en ceux parts destre ꝑ eux ꝑtects del eux q̄ usualm̄t robbe & embler la. black rod. black rod est le huissier appurtein a tres noble order ● jarter ; issint appel de la black rod q̄ il port en son main . il est auxi huissier 〈◊〉 la meason des peers en parlam̄t . bloodwit . bloodwit est , quietum ess as amerciamentis de sanguine fuso ; & quae teneantur placita in curia vestra , habebitis amerciamenta inde provenientia ; quia ( wit ) en anglois est misericordia en latin. bloody hand . bloody hand est l' apprehension ● un trespasser en le forest vers venison , ove ses maines ou asc̄ part 〈◊〉 luy embrues en sank , com̄t q̄ il ne soit trove chasing ou hunting . de quel veies manw. par . . c. . bockland . bockland en temps de saxons fuit ceo terr̄ q̄ nous a ceo jour appellom̄ franktenem̄t , ou ter̄ tenus ꝑ charter ; & fuit ꝑ ceo nosme distinguish del folkland , q̄ fuit terre tenus ꝑ copy . bona notabilia . bona notabilia lou un home devy ayant biens al value de l. en divers diocesses , donque le archievesque doit commit administration ; & si ascun inferior evesque grāt ceo , est void . h. . , . & h. . . dyer . bordlands . bordlands signifie le demesnes que seigniors tenent en leur maines demesne , p̄ le maintenance de leur bords ou tables . bracton l. . tract . . c. . num . . borow . borow ( q̄ ovesque nous signifie un ancient ville , com̄ appiert ꝑ littleton , sect . . ) en ū parol derive ou del frācois burg , id est pagus , ou del saxon parol bo hoe , id est , pignus , p̄ ceo q̄ en ancient temps vicines dun ville deveignont pledges lun p̄ lauter : & 〈◊〉 ceo venust headborow , p̄ le chief pledge ou borhoe-aldere , que nous appellomus le borow-holder ou le bursholder . borow e ● glish . borow english est un custumary descent del terres ou tenements en quelques lieus , ꝑ la quel ils vient a la pluis june fits , ou si le ꝓprieteur ad nul issue , a le pluis june frere ; com̄ en edmunton . kitch . in fol. . borowhead . borowhead . veies headborow . bote. bote est un veil parol , & signifie help , succor , aid , ou advantage ; & est com̄unem̄t joyn ove un aut ' parol , q̄ significatiō il augm̄t ; cōe ceux , bridgebote , burgbote , firebote , hedgebote , plowbote , & divers tiels semblables , p̄ queux significations veies ē lour proper titles . bottomry vulgo bomry . est quant un master ● un neise en case de necessity gage ceo p̄ denyers p̄ le use de le neife . bribor . brribor ( fr. bribeur , i. mendicus ) semble 〈◊〉 signifier luy q̄ pilfer les biens des aut ' hom̄s . an. e. . stat. . brief . brief ( breve ) signifie plus ꝓproperm̄t ē nostre ley , le process que issuist hors del chancery ou auter court , commandant le visc̄ de summoner ou attacher a. p̄ responder al suit b. &c. mes pius largem̄t est prise p̄ ascun precept del roy en escript south seal , isiuant hors 〈◊〉 asc̄ court , ꝑ q̄ il com̄and ascun chose deē fait pur le furtherance del justice & bone order . et ils font appel briefs ( brevia ) p̄ ceo q̄ ils briefm̄t cōprehend l' cause del actiō , & rem brevit ' enarrāt . er asc̄ ● eux sont originals , & ascū judicials , come poies veier alarge en le register des brēs . broadhalpeny . broadhalpeny en ascun copies broadhalfpeny , hoc est , quietum esse de q ● adam consuetudine exacta pro tabulis levie ou boords en faires ou markets ; & ceux q̄ esteont enfranchised ꝑ le charter le roy de cest cust ● m ont cest parol mise ē lour let ' patents : ꝑ reason 〈◊〉 quel , a cest jour le enfranchisem̄t mesme ( p̄● le brevity 〈◊〉 elocution ) est appel broadhalfpeny . broker . broker semble de vener del parol francois broieur , id est , tritor , cestuy q̄ grinde ou rumper un chose en petit parcels . et le voyer office dun broker , come appiert ꝑ le stat. falt jac. c. . est de bar̄ , contriver , faire & concluder bargains ent ' merchants & tradesmen . mes le parol est ore auxi appropriate as eux que achate & vende vieux & broken apparel & houshold-stuff . brugbote . brugbote ( & en ascuns copies bridgebote ) est quietum esse de auxilio dando ad reficiendum pontes . bull. bull est un instrum̄t issint appel , grant ꝑ l'evesque ● rome , enseal ove un seal de plumbe , & conteinent en c̄ ses decrees , com̄andments , ou aut ' acts , accordant al nature del chose p̄ que il est grant . et ceux instruments ont estre cy devant use & de force en cest terre : mes ꝑ le statute de h. . c. . fuit enact , que touts bulls , breves , faculties , & dispensations , de quelque nosme ou nature que il fuit , ad ou obtaine del evesque de rome , serront tout ousterment void , & del nul effect . vide rastal . . c. d. bullion . bullion venust del parol francois billon , que est le lieu lou or est trie . et issint bullion est prise en les statutes faits en e. . st. . c. . & en h. . st. . c. . p̄ le lieu a que or ou argent est port destr̄ trie ou exchāge . mes bullion est auxy prise en le statute e. . stat. . c. . p̄ or ou argent en le masse ou billet . burbreach . burbreach est , quiet ' esse de transgressionibus factis in civitate vel b ● rgo contra pa ● e ● . burgage . ten̄ ē burgage , est a ten̄ sicome les burgers teign̄t ● roy ou 〈◊〉 auter seign̄r , terres , ou tenem̄ts re ● dāt a luy un certain rent ꝑ an ; ou auterm̄t lou un aut ' hom̄ q̄ burgers tient dasc̄ seign̄r terres ou tenem̄ts en burgage rendant a luy un certain rent . burghbote . burghbote est , quietum esse de auxilio dan ● o ad faciendum burgum , casirum , civitatem , muros prostrat ' . burgh english . burgh english , ou borough english , est ū custome en un ancient borough , que si un hom̄ ad issue divers fits , & morust , uncore le puisne fits solem̄t inherit ' , & avera touts les terr̄s & tenements q̄ sueront de son pere , 〈◊〉 que il morust seisie deins mesm̄ le burgh , ꝑ discent , come heir a son pere , ꝑ force del custome de le mesme le burgh . ceo tenure est auxy de copyhold estates ꝑ custom de divers mannors . burglarie . burglarie est , quant un debruse & enter en le meason đ un auter en le nuit , ove felonious intent de robber ou occider , ou de faire auter felonie ; en queux cases , nient obstant il import riens , uncore il est felony , p̄ que il serra pendue . auterm̄t est sil soit en le jour , ou que il debruse le meason ē le nuit , & ne entra pas en ceo a cest temps . mes si un servant conspire ove auters de robber son master , & a ●cel entent il over les doors & senestres de son master en le nuit p̄ eux , & ils vient en le measō ꝑ cest voy ; cest burglarie en les estrangers , & le servant est un laron , mes nemy un burgler . et ceo fuit le opinion de sir roger manwood , chivaler , seignior chief baron de le exchequer , a la quarter sessions tenus en canterbury en january . eliz. buttlerage . est un veiel duty a roys de cest royalm p̄ vine import ꝑ aliens . moor rep. . c cablish . cablish entre les escrivers des les forest leys signifie brush-wood . man. p. . cromp. ju. fol. . cantred . cantred est cybien en gaul come un hundred en angleterre ; car cantre en le british league signifie centum . le parol use an . h. . c. . capicitie . capacitie est , quant home , ou corps politique ou corporate , est capable a don̄ ou prender ter̄s ou auter choses , ou a suer action : sicom̄ un alien nee ad sufficiēt capacitie a suer ē asc̄ personal actiō ; mes ē real action est bō plea. adir̄ il est alien nee , & prier sil serra respondu . dy. f. . pl. . si home enfeoffe un alien & un auter home al use de luy , ou &c. semble q̄ le roy avera l' moiety del ter̄ a touts jours , ꝑ reason del incapacity del alien . dyer fo . . pla . . per le common ley nul home ad capacity 〈◊〉 prender dismes forsque spiritual persōs , & le roy , q ● i est persona mixta : mes lay-home , q̄ nest capable ● dismes ē ꝑnāce , fuit uncore capable 〈◊〉 discharge de dismes al common ley ē son ter̄ demesne cybien cōe spiritual hōo . vi. cok. l. . f. . cape . cape est un brē judicial touchant plea 〈◊〉 terres ou tenements , issint appel ( sicōe les plusors 〈◊〉 briefs sont ) de cest parol q̄ en luy m̄ port le pluis especial intentiō ou fine de ceo . et cest brē est divide ē grād cape & petit cape ; q̄ux ambideux prendōr des choses im̄ovables , & semble a disagree en ceux points . primerment , p̄ ceo q̄ grand cape gift devant apparance , & petit cape puis . secundment , ꝑ le grand cape le tenant est summon a respon ● al default , & ouster al demandant ; petit cape sum̄on le tenant a respon ● al default solem̄t , & p̄ c̄ est appel petit cape en le veil n. b. , . uncore ingham dit , que il nest appel petit cape p̄ ceo q̄ il est 〈◊〉 petit force , mes p̄ ceo q̄ il est petit brief en parols . cest brief semble a cōtein ē c̄ un process ove les civilians appel missio in possessionem ex primo & secund ● decreto : car sicom̄le prim̄ decree seisist le chose , & le secōd donast ceo 〈◊〉 luy q̄ fist le second default en son apparance ; issint cest cape seisist le ter̄ , & auxy assign ousler al party un jour ● apparance , a quel sil ne vient eins , le ter̄ est forfeir . uncore la est difference ꝑrēt ceux deux courses del common & civil ley ; car cest misseo in possessionem extend a toucher cybien biens movables come immovables , lou un cape extend solement al immoveables . secondment , en ceo , que le party esteant satisfie de son demand , le residue est restore a luy que defaulta : mes ꝑ le cape tout est selfie sans restitution . tiercem̄t , cestuy est al use del party agent , le cape est al use le roy. veies bract. l. . tract . c. . num . , , & . regist . judic . f. . a. cape ad valentiam . cape ad valentiam est un brē 〈◊〉 execution , & est issint define en le veil nat. brev ' f. , . cest brief gist ou le tenāt est impleade de certain terres , & il vouche a garrantie un auter , vers que les summons ad warrantizandum ad este agarde , & le vouchee ne vient eins al jour done : donques si le demandant recover vers le tenant , il avera cest brief envers le vouchee , & recovera tant en value de terre del vouchee , sil tant ad ; & sil nad tant , donque le tenant avera execution per cest brief de tiels terres & tenements que descend a luy en fee-simple ; ou sil purchase apres , le tenant avera vers luy un resummons , & sil riens poit dire , il recovera le value . et saches , que cest brief gist devant apparance . de ceux & leur diuers uses , vei ● s le table rel reg. jud . le parol cape . capias . capias est del deux sorts , lun devant judgment , appel capias ad respondendum , en un action ꝑsonal , si le visc̄ sur le primer brief return , nihil habet in billiva nostra . et laut ' est un brief 〈◊〉 execution apres judgm̄t , q̄ auxi est ● divers natures , queux veies en le title process . capite . capite est un tenure q̄ tiēt immediatemet del roy , cōe 〈◊〉 son corone , soit ceo ꝑ service 〈◊〉 chivaler , ou socage , & nient dasc̄ honor , castle , ou mannor ; & p̄ c̄ il est auxi appel ū tēnureq̄ tiēt meerem̄t del roy. car com̄ le corone est un corporation , un seigūry en gross ; issint le roy q̄ possess le corone est en le oyel ● l ley perpetualm̄t roy , & ne unques est en son minority , ou morust , nient pluis q̄ populus fait , l' authority ● queux il port . veies fitz. nat. brev. f. . uncore nota . que un hom̄ poit tener del roy , & uncore nient en capite , cest adire , nient im̄ediatem̄t del corone en gross , mes ꝑ means dascun honor , castle , ou manor appurteināt al corone , 〈◊〉 q̄ il tient sa ter̄ . de ceo kitchen bien dit , que hom̄ poit ten̄● l roy ꝑ servic ' ● chival ' , & unc̄ nient ē capite , p̄ ceo q̄ poit eē q̄ il tient dasc̄ honor ꝑ service 〈◊〉 chival ' , q̄ est ē le mains ● l roy , ꝑ discent 〈◊〉 son ancestors , & niēt im̄ediatem̄t ● l roy , com̄● sō coron̄ , fol. . ove que agree fitz. nat. bre. fol. . k. queux parols sont a cest effect ; il plainm̄t appiert , q̄ terres queux sont tenus del roy come 〈◊〉 un honor , castle , ou manor , ne sont tenus en capite del roy p̄ ceo que un brē de droit en cel case serr̄ direct al bailiff del honor , castle ou manor , &c. mes quantles terres sont tenus del roy com̄ 〈◊〉 son corone , donq̄ ils ne sont tenus de ū honor , castle , ou manor , mes meerem̄t del roy com̄ roy & 〈◊〉 son coron , com̄ de un seign̄re de luy mesm̄ en gross , & le chief ● touts auters seigniories . et cest tenure en capite est auterment appel tenure tiendrant del person del roy , dyer fol. . brook tit . tenures , num . , . et uncore kitch . fol. . dit . que hom̄e poit tener dei person del roy , & uncore nient en capite . son case est tiel ; si le roy purchase manor que j. s. tient , le tenant tiendra come il teignoit devant , & il ne rendra liverie , ne prim̄ seisin , ne tiendra en capite . et si le roy grant son manor al w. n. en fee , exceptant les services de j. s. donques j. s. tient del roy come del person del roy , & uncore ne tient ē capite , mes come il tenoit devāt . per q̄ il semble , q̄ tenure tiendrant del person del roy , & tenure ē capite sont deux divers terr̄ . a toller quel differēce poit cē dit , q̄ ceo lieu ● kitch . est deē prise com̄ sil ad dit , nemy en capite ꝑ service ● chivaler , mes ꝑ socage , pursuant le usual parlance , p̄ ceo q̄ pluis communement , ou nous ꝑleroms 〈◊〉 tenure ē capite , nous intendom̄ tenure ꝑ service 〈◊〉 chivaler . vies le star. car. . c. . per quel touts tenures sont ore vers ē frāk & com̄ socage . cark . cark semble destre un quantity de lane , de que troysiem̄ font un sarpler . h. . c. . vid. sarpler . carno . carno est un immunitie , come appiert en cromp. jur. fol. . ou est dit , que le prior de malton fait claim p̄ luy & ses homes , de ē quit de touts amerciam̄ts deins le forest , & auxi destr̄ frank de scapes , & de touts man̄ers de gelds , & 〈◊〉 pecgelds , buckstall , trites , carno , & summage , &c. carrack ou carrick . carrack , alias carrick , est un niefe de faix , & est issint appel del parol italionis ca ● ico vel carco , id est , onus . cest parol est mention en le statute jac. c. . carue de terre . carue ou carucat de terre est un certain quantitie de terre per que les subjects ont este cydevāt taxe : sur q̄ le tribute issint levie est appel caruage , bract. l. . c. . num . . littleton sect. . dit , que soca est mesme ove caruca , sc . un soke ou carue . stow en sō annals , p. . ad ceux ꝑols ; mesme le tēps h. le roy prist caruage , cest adire , deux marks d' argent d' chesc ' fee dun chivaler , al marriage de son soer isabel al emperor . per que il semble que la fuit raise de chescun carue de terre tāt , & isiint ꝑ consequent de chesc ' fee de chivaler deux marks 〈◊〉 argent . rast . en son exposition de parols dit , que caruage est destre quit , si le roy taxera tout le terre ꝑ carues , cest adire , ū priviledge ꝑ que un home est exempt de caruage . skene dit , que c̄ containe cv grand portion de terre q̄ poit estre eyred ou tilled en un an & jour ove un carue ; que auxy est appel hilda ou hida terrae . castellaine . castellaine est un keeper ou captain , asc ' soits appel u constable 〈◊〉 un castle . bra. l. . tra . c. . en mesm̄ le man̄ est use an . e. . c. . en les livers de feudis vous troveres guastaldus destre de tiel signification , mes pluis large , pur c̄ que il est aux ' extend a ceux q̄ ont le custodie de les mansion-measons del roy , appel courts , nient obstant q̄ ils ne sont lieus de defence ou force . manw. part . . del leys del forest , p. . dit , que la est un officer del forest appel castellanus . castle-guard . castle-guard est un imposition impose sur tiels subjects del roy queux inhabitant deins un certain compas dasc̄ castle , al maintenance de tielx q̄ux vigilōt & gardōt l' castle . mag. cha. c. . & an . . h. . c. . il est asc̄ foits use p̄ le circuit m̄ q̄ est inhabit ꝑ tiels q̄ux sont subject a cest service . veies chivalry . casu consimili . casu consimili est un brief de entrie , grantus ou le tenāt ꝑ courtesie , ou tenant p̄ term 〈◊〉 vie , ou p̄ aut ' vie , alien en fee , ou en tail , ou pur term daut ' vie . et il ad cest nosme , p̄ ceo que les clerks del chancery ont ceo fram̄ ꝑ lour com̄on consent ensemble al brief appel in casu proviso , accordant al auctority done al eux ꝑ le statute de westminister . cap. . que voit , quotiescunque evenerit in cancellaria , quod in uno casu reperitur breve , & in consimili casu indigente remedio , concordent clerici de cancellari a de brevi faciendo , &c. et cest brief est grāt al cestuy en reversion vers le party a q̄ le dit tenant issint alien a son prejudice , & en le vie del dit tenant . veies pluis de ceo , f. n. b. f. . casu proviso . casu proviso est done per le stat. de gloucester , c. cest brief gift lou tenant en dower alien en fee , ou a term de vie , ou en tail , la terre que el t̄ient en dower ; ore cestuy que ad le reversiō en fee , ou en tail , ou a term̄● vie , maintenant avera cest br ● ve vers le alienee , ou cestuy q̄ est tenant del franktenement del terre , & c̄ durant la vie le tenant ē dower . f. n. b. fol. . n. catals . catals ou chattels comprehend touts biens movable & immovable , forsque tiels que sont en nature de franktenem̄t , ou parcel de c̄ , com̄ poit estre collect hors stamf. praerog . ca. . & an . el. c. . unc̄ kitch . fol. . dit , que mony nest deē account biens ou catals , ne espervers , ne chiēs , car ils sont ferae naturae . mes il semble q̄ money nest catal , p̄ ceo q̄ nest de luy m̄ chose valuable , mes pluis en imagination q̄ en fait . catals sont ou real ou personal . catals real sont ou tiels que ne apperteinont immediatement al person , mes al asc̄ auter chose ꝑ voy 〈◊〉 dependancie ; come un boxe ove chartes de terre , le corps dun gard , les pom̄s sur l' arbr̄ , ou l' arbre mesme cressant sur le terre . crom. f. . b. ou auterm̄t tiels q̄ sont issuant hors ● asc̄ chose immoveable al person , cōe ū lease pur rent ou terme 〈◊〉 ans . personal polent estr̄ issint appel en deux respects . le un p̄ c̄ que ils appent immediatement al ꝑson 〈◊〉 ū hōe ; cōe ū chival , &c. lautr̄ , p̄ c̄ que quant ils sōt tortiousmēt deteigne , nous ne avom̄ pas asc̄ aut ' means pur lour recoverie forsque per ꝑsonal actions . les civilians comprehendont ceux choses , & aux ' tr̄s de touts natures ou tenures , desouth le parol bona , que est ꝑ eux divide in mobilia & immobilia . vid. br. lib. . c. . num . , & . cepi corpus . cepi corpus est un return fait per le viscount , que , sur un exigend ou auter brief . il a pris le corps del partie . fitzb. nat. br . f. . certificate . certificate est un escript fait en ascun court , a doner notice al auter court dasc̄ chose fait la ; come un certificate del cause de attaint est un trāscript briefm̄t fait ꝑ les clerks del corone , clerke del peace , ou clerke de assise , al court del bank le roy , conteinant le tenor & effect de chesc̄ indictment , utlagarie , ou conviction , & clerk attaint , fait ou declare en asc̄ auter court. mes nota , que cest certificate doit estre falt ꝑ cestuy que est i'immediate officer al court ; & p̄ c̄ si le commissarie ou official del evesque certifie un excommengement en barr̄ de un action al common ley , ceo nest bon̄ , ( come fuit resolve en coke lib. . fol. . ) mes tiel excommengement doit estre certifie ꝑ le evesque mesme . uncore le certificate dun excommengement ꝑ special commission̄s delegates desouth lour common seal fuit allow , & tenus assets bon̄e ē le common banke dyer , fol. . pla . . certification de assise . certification d'un assise d' novel disseisin , &c. est un brief agard a re-examin̄ ou reviser ū chose passe ꝑ assise devant asc̄ justices ; & est use quant home appiert ꝑ sō bailife al un assise port ꝑ un aut ' & ꝑde le jour , & ayant asc̄ aut ' chose ouster a plea ● ꝑ luy mesme , com̄ un fait ● release ou , &c. que le bailiff ne plederoit , cu ne puit pleader p̄ luy apris , un mieux examination del cause , ou devant mesme les justices ou auters , & acquire letters patents , ( vide lour forme f. n. b. . ) & donque port un brē al vicount 〈◊〉 appeller le party p̄ que le assise ad pass , & auxi le jury que suit impannel sur mesme le assise , devant les dits justices , a un jour & lieu certain . et est appel un certificate , p̄ ceo que en ceo mention est fait al vicount , que sur le partles cōplaint del defective examination , ou awrust uncore remainant lur le assise passe , le roy ad direct ses letters patents a les justic . s , p̄ le mieux certification 〈◊〉 lour mesmes , ou touts les points del dit assise fueront examin ou nemy . certiorari . certiorari est un brief que gist lou un est implead en un base court , que est de record , & il suppose q̄ il ne poit aver equal justice la ; donques sur un bill en le chancery , comprisant ascun matter en conscience , il avera cest brief p̄ remover tout le record en le chancery , & la destre determine ꝑ conscience ; mes fil ne proya son bill , donques l' auter party avera un brief de procdendo , a reman ● le record en le base court , & la destre determine . auxy il gist en plusors auters cases , pur remover records pur le roy com̄ indictments & auters cest brief est auxy grant hors del court del bank le roy ou common pleas a remover ascun action al eux hors de inferior courts de record ; & issint le plaintiff doit declare & proceed en le superior court. auxy a certifyer original briefs ou proceeds hors dascū courts de record en bank le roy ou nullum tale recordum est plede . auxy sur briefs de error dun judgment en le common pleas , chescun party poit aver cest brief , a remover ascun proceedings en bank le roy sur alleger diminution , com̄ appiert co. ent. , , . cro. , & cessavit . cessavit est un brief que gist lou mon verie tenant tient de moy certain terres ou tenements , rendant certain rent per an , & le rēt est arrere ꝑ deux ans , & nul sufficient distress poit estre trove sur le terre ; donques jeo avera cest brief , per que jeo recovera le tetre : mes si le tenant vient en court devant judgment , & tendra les arrerages & les damages , & trove surety que il ne cessera pluis en payment de dit rent , jeo serra compel de prender les arrerages & les damages , & donques le tenant ne perdera la terr̄ . le heir ne poit maintaine cel brief pur cesser fait en temps son ancestor : auxy ne gist mes pur annual service , come rent , & huju ● nodi , & nient pur homage & fealry . auxy il y ad auter brief appel cessavit de cantaria , & gist ou un done terr̄s a meason de religion , a trover pur lalme de luy , de ses ancestors , & de ses heires , an̄ualn̄it un chandel ou lampe ē esglise , ou p̄ faire divine service , de paster les povers , ou auters almes , ou auter tiel chose faire ; donque si les di ● s services ne sont pas fait per ans , le donor ou ses heires aver̄ ces brief vers quecunque est eins apres tiel cesser . vide le statute w. . cap. . cession . cession est , quant un ecclesiastical ꝑson est cree evesque , cu quant un parson ● un parsonage prist un auter benefice sans dispensation , ou autern̄it nient qualified , &c. en ambideux cases lour primer benefices sont devenus void , & sont appelle destre void ꝑ cession . et al ceux que il ad que fuit cree evesque le roy presentera pro illa vice , quicunque soit patron de eux : et en lauter case le patron poit presenter . vies e. . . & h. . . cestuy a que vie , & cestuy a que use . cestuy a que vie est il pur quel vie un auter teigne un estate , & cestuy a que use est il q̄ est un feoffee pur le use ● un auter . challenge . challenge est un exception prise ou envers persons ou choses . persons , cōe en un assise , les jurors , ou asc̄ un , ou pluis de eux ; ou en case 〈◊〉 felony , ꝑ le prison̄ al barre vers choses , com̄ un declaration . vet. n. b. fol. . challenge faits a les jurors est fait ou al array , ou a les polls challenge al array est , ou exception est prise al entire nomber , come impanel ꝑtialment : challenge al ou per le poll est , ou exception est prise al ascun un ou pluis , come nient indifferent . challenge a les jurors est aux ' divide en challenge principal , & challenge pur cause , ces ● adire , sur cause ou reason . challenge principal , ou peremptory , est ceo que le ley allows sans cause alledge , ou examination , com un prison̄ al barr , arraine sur felony , poit peremptoriment chalenge al nombre de vint , un apres auter , del jury impanel sur luy , nient alledgant d ● sc̄ cause , mes son dislike demesne , & ils serront discharge , & novels mise en lour lieus : & ceo est in favorem vitae . mes en le case de hault treason nul peremptory challenge est allow . vide h. . cap. . et un difference poit estre observe perent ' challenge principal & challenge ꝑemptory p̄ ceo que challenge ꝑemptory semble solem̄t destre use ē choses criminal , & merement sans ascun cause alledge , pluis que le sole phantasie del prisoner , stamf. pl. co. f. . & principal p̄ le greinder part en civil actions , & ove le nosmant de ascun exception , q̄ esteant trove voyer , le ● ey maintenant allowe . come p̄ example , si ascun party dit que un des jurors est le fits , frere , cousin , ou tenant al auter party , ou espouse son file , ceo est un bone & fort exception , fil soit voyer , sans pluis examination del credit del party challenge . et de q̄ large extent cest challenge , de consanguinity est , bien applert , plow . fol. . auxi en le plea del mort de ascun home , & en chescun action real , & auxy en chescun action personal , ou le dett ou damages amount al marks , il est bone challenge al ascun del jurie impannel , qui il ne poit dispender s. per le an de son franktenement demesne . an. h. . cap. . challenge sur reason ou cause est , quant le party alledge asc̄ tiel exception vers un ou pluis del jurie , que nest immediatem̄t sufficiēt sur conusance del voierty de ceo , mes arbitrable & considerable per le residue de jurors ; com̄ si le fits le juror ad espouse le file del adverse party . cest challenge pur cause semble per kitch . fol. . destre dit challenge pur favor ; ou potius challenge p̄ favor est la dit destre un species de challenge per cause : ou poies auxy lier queux challenges sont communement account pur principal , & queux nemy . chamberdekins . chamberdekins sont irish beggars , que ꝑ le statute de h. . c. . fueront ꝑ un certain temps , deins mesme le statute express , 〈◊〉 avoid cest terre . champerty . champertie est un brē , & gist lou deux homes sont impleadants , & l'un done la moietie ou part del chose en plee a un estranger , pur luy mainteiner encounter l'auter ; donques le party grieve avera cest brē devers l'estranger . et semble que ceo ad este un ancient grievance en nostre terre : car nient obstant divers statutes , & un forme de un brē frame a ceux , uncore anno e. . c. . fuit enact , que ou les primer statutes ꝓvide redresse pur ceo solement en bank le roy , que donques attend le court , il serroit loyal pur les justices del common plees ensement & justices đ assises en lour circuits , đ enquirer , oyer & determiner ceux & tiels cases , cybien al suit le roy , come al suit del party . auxy fuit ordelgne per le statute de h. . ( que fuit confirm ꝑ le statute de h. . c. . ) que justices đl peace a lour quarter sessions averont authority đ enquirer , cybien ꝑ les serem̄ts đ homes , come ꝑ l' enformation done a eux per ascun person ou ꝑsons , des defaults , contempts & offences com̄ise encount ' les leys & statutes fait & purview touchant chamꝑty , maintenance &c. & a oyer & determiner les ditsfaults & offences . champertors sont ceux que mova plees & suits , ou cause destre move ꝑ lour ou auters ꝓcurem̄t , & sue a lour costages & charge demesne , p̄ aver part del terre ou gaines ē variance . veies le stat. articuli super chartas , c. . chance-medley . chance-medley est , quant un home sans asc̄ male entent fait un loyal chose , ou q̄ nest ꝓhibit ꝑ ley , & uncore auter est tue ou vient a son mort ꝑ ceo : sicome hōe jet un pierre , q̄ percusse hōe ou feme , q̄ apres de ceo morust ; ou si home sagitte un fle ● ch , & auter q̄ passe est occide , & tiels semblables ; cest manner 〈◊〉 occision est homicide ꝑ misadventure , ou chance-medley , pur que l' offendor avera son pardon de course , come appiert ꝑ le statute de e. . c. . & il forfeitera ses biens en tiel manner come cestuy q̄ tuera un home ē son defence . mes ē c̄ case est desir̄ consider , ou cestuy q̄ commit cest homicide per chance-medley fuit ē feasās 〈◊〉 un loyal chose ; car ● sil ' act fuit illoyal , cōe a pugner al barriers , ou currer a ti ● te sans com̄andem̄t le roy , ou jett ' pierres en ū hault-voy ou hōes usualm̄t passe , ou sagittāt flerches en ū market-lieu , ou tiels semblables , ꝑ q̄ ū hom̄ est occide ; en touts ceux cases il est felony al meins , cestascavoir , homicide , sinon mur ● ; car l' offendor esteāt feasant de un illoyal act ꝑ son volunt demesne , le ley construa son meaning & volunt ē c̄ ꝑ le success del act . com̄ si deux sont pugnā● s ensemble , & ū tierce hom̄ vient a severer eux , & est occide ꝑ ū 〈◊〉 eux deux , sans asc̄ malice ꝓpence ou male entent ē luy q̄ occide le hom̄ , uncore ceo est murder en luy , & nemy homicide per chance-medly ou misadventure , p̄ c̄ q̄ ils deux que cōbateront ensemble fueront ē feasance 〈◊〉 ū illoyal act . et si ils fueront assemble ove malice propense , lun intendant de occide laut ' , donque il est mur ● en eux ambideux . chancery , chancery est un court a westminster de ley pur suits p̄ & envers attornies , clerks , & officers 〈◊〉 cel court , & ceo part de ceo & auxy inrolments de faits & patents est de record . et est auxy ū court p̄ equity & lour proceedings en ceo sont enter en anglois , & le seignior chancellor ou keeper del grand seal , & master des rolls sont judges , & les briefs sont returnable coram rege in cancellaria . coke inst . . chapiter . chapiter est un summarie ou content de touts tiels choses que sont destr̄ enquire devāt justices ē eyre , justices ● assise , ou del peace en lour sessons : issint est use e. . c. . en ceux parols , et q̄ nul clerk dasc̄ justice , escheator , ou com̄issioner en eyre , prendre asc̄ chose p̄ delivery de chapiters , mes solement clerks de justices en lour circuits ; & ensem̄t e. . c. . en ceux parols , et quant le temps vient , le vicount certifera les chapiters devant les justices en eyre quel nombre des brēs il ad . auxy britton en mesme significatiō use cest parol , cap. . et a cest jour chapiters sont appelles articles , pur le grien ● part , & sont deliver cybien per la bouche del justice en son charge , com̄ ꝑ les clerks en escript , al enquest , ou en ancient temps ils fueront ( apres ū exhortation done ꝑ les justices p̄ le bone observation del leys & peace del roy ) primerm̄t lie distinctm̄t & apertm̄t en le plein court , & donq̄ deliver en escript al grand enquest . un example ● ceux chapters la est ē livr̄● assises , fol. . pla . . chaplain . chaplain est celuy q̄ fait divine service en un chappel , & pur ceo est communm̄t use p̄ celuy q̄ depēd fur le roy ou auter home de qualitie , p̄ l' enstruction de luy & son familie , le lection de orisons & sermons ē son private meason , ou com̄unemēt ils ont en chappel pur cel purpose . et p̄ ceo q̄ ils sont reteine per letters desouth le signet ● lour patrons , & per ceo sont ꝑ entendment destre resiant ove eux , le ley ad done libertie p̄ lour non-resiance sur lour benefices . si un count ou baron reteigne ū chaplein , & devant son advancem̄t soit attaint de treason , la le reteigner est determine , & ap̄s l' attainder tiel chaplein ne poit accept ū second benefice , p̄ ceo que cestuy q̄ est attaint est ꝑ son attain ● ū mort ꝑson ē ley. et queux ꝑsons 〈◊〉 nobilitie & auters poient reteiner , & quant chapleins ils severalm̄t poyent reteine , l' act de h. . c. . bein declare . la feme 〈◊〉 un barō durāt le coverture ne poit reteigne ū chaplein , uncore quant un baron̄esse dotate reteigne un ou deux , solonque le proviso del dit act , cest retigner est le principal matt ' , & si longe come le reteigner est ē force , & le baron̄esse continue un baron̄esse , les chapleins bien poyent accept ' deux benefices ꝑ l' expresse letter del act ; car il suffist , si al temps del reteigner le baronnesse fuit widow . et en ceo cest rule est destr̄ extend 〈◊〉 un feme q̄ atteigne nobilitie ꝑ marriage , come ꝑ marriage 〈◊〉 un duke , count , ou baron , &c. car en tiel case , si el apres marrie desouth le degree de nobilitie , per tiel marriage el perde le dignitie a que el ad attaine , & apres tiel darreine marriage le poyar de reteiner un chaplein est determine . mes auterment est ou feme est noble ꝑ discēt , car la sa reteigner devant ou apres le marriage ove ū que est ignoble serra en force , & nemy countermaund per le marriage , ne determine per sa pris l 〈◊〉 un baron desouth sa degree , coke lib. . fol. , . chapter . chapter en latine est define destre congregation ● clericorum in ecclesia cathedrali , conventuali , regulari , vel collegiata ; & en aut ' signification , locum , in quo fiunt communes tractatus collegiatorum : & il ad auters significations q̄ ne pas appent a nr̄e purpose . poit estre dit que cest collegiate society est appell chapter metaphorice , le parol originalm̄t impliont un petit teste ; car cest society ou corporation est sicome un teste ; non solem̄t a gar ● & govern̄ le diocesse en le vacation del evesquery , mes aux ' ē plusors choses 〈◊〉 ad ● iser l' evesque quant le see est pleine . charge . charge est lou un home granta un rent issuant hors de son tr̄e , & q̄ , si le rēt soit arere , que serra loyal a luy , ses heirs & assigns , a distrein̄ tanq̄ le rent soit pay : cest appel un rent-charge . mes si ū grant ū rent-charge hors del terre d'un aut ' , com̄t puis il purchase la terre , uncore le grant est void . charter-terre . charter-terre est tiel que home tient ꝑ charter , cest adire per evidence en escript , q̄ auterment est appel franktenem̄t . copihold terres devant le conquest fueront ꝑ les saxons appel folkland , & les charter-terres , bockland . et lambert , en son explication de saxon parols , dit , que cest terre fuit tenus ove pluis sacile & com̄odius conditions q̄ folkland ou copihold tr̄e tenus sans escript : et son reason est , pur ceo q̄ il est un frank & im̄une inheritance , ou t're sans escript est charge ove paym̄ts & servitude issint que le griend ' part 〈◊〉 hōes de nobilitie & bone qualitie possessont le primer , laut ' rustick homes . le prim̄ nous appellomus franketenem̄t , & ꝑ charter ; lauter , terre al volunt del seignior . si riot , rout , ou illoyal assembly soit commise , donques per le act de h. . c. . vint homes inhabitant deins le county ou le riot , &c. est fait ( de que chescun de eux avera terres & tenem̄ts deins mesm̄ le county al annuel value de vint soulz de charter-hold ou franktenem̄t , ou vint & siz soulz ● copihold ) ferront enquiry de ceo . charter-party . charter-partie est un indenture des covenants & agreements faits ent ' merchants ou mariners touchant lour maritime affairs : et de ceo poyes lierē le statute , ore obsolete , fait h. . cap. . charters . charters de terres sont escripts , faits , evidences & instruments , fait 〈◊〉 un home al auter , sur asc̄ estate conveyed ou passed parenter eux 〈◊〉 terres 〈◊〉 senements , 〈◊〉 le nosmes , lieu , & 〈…〉 le estate , 〈◊〉 & manner del feasans 〈◊〉 el , les parties a l' 〈◊〉 , deliver & prise , les te ● moignes p̄sent al ceo , ove auters circumstances . chartis reddendis . chartis reddendis est un br̄e q̄ gist envers luy q̄ ad charters del feofmēt deliver al luy p̄ conserve , & il refuse deliver ceuxs . veil nat. brev. fol. . reg. orig. f. . chase . chase est prise deux voyes : primerm̄t a driver cattel , s ● cōe a chaser ū distress a un fortlet ; secondem̄t , est use p̄ un receit p̄ dames & avers del forest : & est dun nature parent ' un forest & un park , esteant cōmunem̄t meins q̄ ū forest , & nēy ēdow ove touts liberties , cōe ove courts de attachment , swainmote , & justice seat ; & unc̄ dun pluis large cōpas , & ayāt pluis diversitie del gardiās & game q̄ ū park . crompt . en son liv ' de jurisdictions , fo . . dit , que ū forest ne poit estre ē les maines dū subject , mes il immediatm̄t ꝑde le nosme , & devient ū chase : & unc ' fo . . il dit , que un subject poit estr̄ sn̄r & own̄ dun forest ; le quels nient obstāt que semble contrary , uncore sont ambideux ses dits ē asc ' sense voyer : car le roy poit done ou aliener un fore st a ū subject , uncore issint q̄ quāt il est ū folts ē le subject , il ꝑde le voyer ꝓpertie dun forest , p̄ ceo q̄ les courts de swainmote , justice seat & attachment , immediatm̄t vanie , nul esteant able de faire un sn̄r chief justice en eyre del forest forsq̄ le roy , sicōe manwood ad bien monstre ē son liver de forest leyes , c. . & . uncore poit estre grantus en tiel large man̄er , que la poit estre attachment & swainmote , & un court equivalent a un justice seat , come appiert ꝑ luy en m̄ le cap. numb . . issint q̄ un chase differt de un forest en ceo , pur ceo que poit estr̄ en les maines dun subject , que un forest en son proper & voyer nature ne poit estre ; & de un park en ceo , q̄ nest inclose , & ad non solemēt un pluis large cōpas , & pluis stor̄● game , mes de gardiās aux ' & supervisors . vide forest . chatels . chatels . veies catals . chauntry . chauntry , cantaria , est ū esglise ou chappel ēdow ove t'res ou auter annual revenews p̄ le maintenance dun ou plusors priests , de chaunt ' massee de jour en jour pur les ames des donor , & tiels auters q̄ ils appint et 〈◊〉 ceux poyes lier en les statutes h. . c. . & e. . c. . chevage . chevage est un sum de argent pay per villeins a lour sn̄rs en conusans 〈◊〉 lour villenage , le quel bract. l. . c. . issint define ē latin ; chevagium dicitur recognitio in signum subjectionis & dominii de capite suo . sēble aux ' destr̄ use pur un summe 〈◊〉 argent don̄ ꝑ ū home al aut ' 〈◊〉 poyer & potencia ꝑ son avowment , maintenance & ꝓtection , sicome a lour teste ou conductor . lambert ceo escrie chivage , ou potius chiefage . chevisance . chevisance venust del parol francois chevir , id est , devener al chief de quelque chose . et pur ceo que le perfection dun bargaine est le porter del matter al fine , c̄ parol chevisance est use pur bargainer en le statures h. . cap. . & eliz. cap. , & . childwit . childwit , hoc est , quod capiatis gersumam de nativa vestra , corrupta & praegnata sine licentia vestra . chimin . chimin est le haut voy lou chescun hōe passa , q̄ est appel via regia ; & uncore le roy nad aut ' chose la forsq̄ le passage pur luy & son people ; car le franktenement est en le seignior del soile , & touts les profits cressans la , come arbres & auters choses . et ceo est divide en deux sorts , via regia , de que est parle devant , & via private , ou chiminus privatus ; & ceo est un voy per que home ou pluis ont libertie a passer , ou ꝑ prescription , ou ꝑ charter , sur le terre dun aut ' home : et ceo est divide en chimin en gross , & chimin appendant , kitch . f. . chimin en gross , est ceo voy que home tient principalm̄t & solem̄t en luy m̄ : chimin appendant est ceo que home ad adjoin̄ a ascun auter chose , come appertināt a ceo ; pur example , si home prist un close ou pasture , & ad covenant pur ingresse & egresse , al & de mesme le dit close , ꝑ ascun auter terre , p̄ que auterm̄t il ne poit passer . ou chimin en grosse poit estre ceo q̄ les civiliās appel personal ; come quant un covenant p̄ un voy sur le terre dun auter home pur luy mesme & ses heires : chimin appendant , e converso , poit estre ceo que ils appel real ; sicome quant home purchase un voy ꝑ le soile dun auter home , pur tiels que inhabitont ou inhabiteront en cest ou cest measō , ou que sōt les owners de tiel manor , a touts jours . chiminage . chiminage est un toll done pur passage per un forest , en disturbance des feres del forest . chirographer . chirographer est celuy que en le office del common bank engrosse fines conus en cest court , en un perpetual record , ( puis que ils sont conus & pleinment passe per ceux officers per queux ils sont primermēt examine ) & que escrie & deliver les indentures , un pur le purchasor , & auter pur le vendor , & fait un auter escrow endented , conteinant auxy le effect del fine , que il deliver ouster al custos brevium , que est appel le pee del fine . le chirographer auxy , ou son deputy , proclaime touts les fines en le court chescun terme , accordant al statute , & donques en alant al office del custos brevium la endorse les proclamations sur le dorse del pee de ceo , & touts foits retaine le brief de covenant , come auxy le note del fine . chivage . chivage . veies chevage . chivalrie . chivalrie est ū tenure de tr̄e ꝑ service 〈◊〉 chivaler : p̄ le meux intelligence 〈◊〉 que est destre conus , que la nest ascun terre mes il est tenus mediatement ou immediatement del corone per ascun service ou auter ; & pur ceo touts nostr̄ franktenements que sont a nous & a nostr̄ heires sont appel fees , come ensuants de le bountie del roy pur petit an̄ual rent , & le performance de tiels services que originalment fueront impose sur le terre al donation de ceo : car sicome le roy done a ses nobles , ses immediate tenants , graund possessions a touts jours , a tener de luy pur celuy ou tiel rent & service ; issint ils arere en tēps divide ouster , a tiels que pleist a eux , lour terres issint receive del boūtie le roy , p̄ rents & services come a eux semble biē . et ceux services sont touts ꝑ liitleton divide en deux sorts , chivalrie & socage , lū martial & militarie , le auter rural & rustical . chivalrie pur ceo est un tenure per que le tenant est lie a performer ascun noble ou militarie office a son seignior ; & est de eux sorts , ou regal , cestascav ' tiel que poit estre tenus solement del roy , ou tiel que poit auxy estre tenus dun cōmon person cybien come del roy. ceo que poit tener solement del roy , est properm̄t appel servitium ou serjeantia , & est auxy arer̄ divide en grand & petit serjeantie . grand serjeanty est ceo , ou hōe tient terres del roy ꝑ service q̄ il devoit fair en son ꝑson demesne , come a porter le banner le roy ou son lance , ou de amesner son hoast , ou destre son marshal , ou a ventier un cornu quant il veit ses enemies invade le tr̄e , ou de trover un hōe array de pugn̄ deins le quater meres , ou de fair ceo luy m̄ , ou 〈◊〉 port l espee le roy devāt luy a son coronatiō , ou a cel jour destr̄ sō sewer , carver , butler , ou chamberlain . petit serjeanty est , ou un hōe tient tr̄e del roy 〈◊〉 render a luy annuelm̄t un arc , un espee , un dagger , un cuttel , un launce , un paire de gants de ferre , un paire 〈◊〉 spors ● ore , ou de render auters tiels petit choses touchant le guerre chivalrie q̄ poit tener 〈◊〉 un common ꝑson cybien cōe del roy est appel escuage , servitium s ● uti ; & cest ou uncertain , ou certain . escuage uncertain est auxy de deux sorts ; primerm̄t , ou le tenant per son tenure est lie ● attender son seignior alant ē ꝑson al guerres le roy envers ses enemies , ou luy mesme , ou mitter un sufficient home en son lieu , la destre maintain a ses costs tants des jours come fuer ' agree ꝑent ' le sn̄r & son primer tenāt al grant ' del fee. et les jours ● tiel service semble destr̄ assesse ꝑ le quantity del tr̄e issint tenus , come si ceo extend a un ent ● e ● fee de chivaler , donq̄ le tenant fuit lie issint ● attender son sn̄r jours ; & un fee de chivaler fuit tant 〈◊〉 tr̄re come ē ceux jours fuit account un sufficient viver p̄ un chivaler , & ceo fuit acres , ꝑ l'opinion de asc̄ , ou come aut's semblont , ou livers ꝑ l' an cambde ● brit. fol. . si le tr̄e extende forsque al moiety 〈◊〉 un fee 〈◊〉 chivaler , donq̄ le tenant est lie 〈◊〉 atten ● son sn̄r mes j urs ; si a un quart ꝑt , donq̄ jours . fitzh . nat. brev. fol. . c. & . c. e. laut ' kind 〈◊〉 escuage uncertain est appel castle-gard , ou le tenāt ꝑ son tr̄e est lie , ou ꝑ luy mesme ou ꝑasc ' aut ' , a defēder un castle si toft cōe aven̄a a son course . escuage certain est , ou le tenāt est assesse a un certain sum 〈◊〉 argēt destre pay ē lieu de tiel uncertain service ; cōe q̄ un hōe payera annua●m̄t p̄ un fee chivaler s. p̄ le moiety s. ou asc ' tiel rate . et cest service , p̄ ceo q̄ est trahe a un certain rent , vient destre 〈◊〉 un mixt nature ; nient meermēt socage , car ne olet pas del carue ; & uncore socage ē effect , esteāt jammes neq̄ ꝑsonal service , neque uncertain . chivalrie ad auters conditions annexe a ceo ; come homage , fealtie , gardship , reliefe , & marriage , bract. l. . c. . & q̄ ils signifies veies ē lour several lieus . chivalrie est ou general , ou special , dyer fo . . pla . . general semble destr̄ , ou est solemēt dit ē le feoffmēt , q̄ le tenant tient ꝑ servitium militare , sans asc ' specification ● sergeantie , escuage , &c. special est ceo q̄ est declare particularmēt ꝑ quel kind de service de chivalrie il tient . veies le statute car. . cap. ● . chose en action . chose en action est , quant un home ad cause , ou poit porter un action p̄ asc ' duty due a luy ; cōe un action de dett sur un obligation , annuitie , ou rent , action de covenant , ou gard , trespas des biens import , battery , ou tielx semblables : & p̄ ceo q̄ ils sont choses 〈◊〉 queux ū hōe nest possesse , mes p̄ recoverie ● eux est mis a son action , ils sont appelles choses en action . et ceux choses en action que sont certain , le roy poit graunter , & le grauntee poit user un action p̄ eux en son nosme demesme solemēt : mes un cōmon ꝑson ne poit graunt son chose en action , ne roy luy m̄ son chose en action , quel est uncertain , cōe trespasse ▪ & tiels semblables . mes de tardiffe temps est use en londre , q̄ merchants & auters la queux ont bills sans seals pur paym̄t 〈◊〉 argent eux assigne al autersqueux assignes porteront actions en lour nosmes demesnes . churchesset . churchesset est un parol de q̄ flet. l. . c. . ē le fine issint escrie : certam mensuram bladi tritici significat , quā quilibet olim sanctae ecclesiae die s. martini , tempore tam britonum quam anglorum , contribuerunt . plures tamen magnates , post romanorum adventum , illam contributionem , secundum vet . legem moysi , nomine primitiarum dabant , prout in brevi regis kanuti ad summum pontificem transmisso continetur ; in quo illam contributionem chirchsed appellant , quasi semen ecclesiae . gardians d' esglise . gardians d' esglise sont officers annualm̄t elect ꝑ le consent del minister & les parochians , accordant al custom de chesc̄ several lieu , a veier al esglise , cemiter , & tiels choses queux appent al ambideux , & 〈◊〉 observer le gesture des parochiās , p̄ tiels crimes q̄ appertain al jurisdiction ou censure del court ecclesiastical . ceux sont un kind de corporation , & sont enable ꝑ ley de suer p̄ ascun chose apperteignant a lour esglise , ou les povers ● l paroche . veies lambert del dutie des gardians del esglise . cinque ports . cinque ports sont cinque haven-villes , cestascavoir , hastings , romney , hyth , dover , & sandwich , a queux ad este grant long temps passe mult liberties ( q̄ aut'rs fort-villes nont , ) & ceo primerm̄t en le temps del roy edovart appel le confessor ; & fuer̄ encrease apres , & ceo especialm̄t en les jours del troys edovart , le prim̄ , secōd , & le tierce , cōe appiert ē le livre đ dooms-day & aut ' vieux monumēts , trop longe đ recite . circuitie de action . circuitie de action est , quant un action est droituralm̄t port p̄ un dutie , mes uncore circum le bush , come semble , p̄ ceo q̄ ceo poet ciblē estre auterm̄t respondue & determine , & le suit save : & p̄ ceo q̄ mesme l'action fuit pluis q̄ besoigne , il est appel circuitie de action , come fi un home grant un rent charge de xli . hors de son manor đ dale , & apres le grantee disseisist le grantor de mesme le manor , & il port un assise , & recover le terre & xx.l. damages , le quel xx.li. esteant pay , le grantee del rent sue son action p̄ x. li . đ son rent due durāt le tēps đ le disseisin , le q̄ final disseisin ad esse il doit aver ewe : cest appel circuitie de action , p̄ ceo q̄ il poit aver este pluis briefment respondue ; car lou le grantor doit receive xx.li. damages , & pay x. li rent , il puit aver receive forsq̄ le xli . solem̄t p̄ les damages , & le grantee puit aver recoup . & retaine arere le aut ' x.l. ē ses maines ꝑ voy de deteiner pur son rent , & issint ꝑ ycel poet aver save son action . circnmstantibus . circumstantibus est un ꝑol ● art , expressent le supply & addition del nombre ● jurors , si asc ' impan̄el ne appearont pas , ou sont challenge ꝑ asc ' ꝑtie , ꝑ adding a eux cy plasors auters de eux q̄ sont p̄sent & circumstantes . veies h. . c. . & eliz. . city . city est tiel ville corporate q̄ ad un evesq̄ & un esglise cathedral , & de c ' tiels parols sont trove : idem locus urbs , civitas , & oppidum appellatur . civitas enim dicitur , quatenus cum justitia & magistratuum ordine gubernatur ; oppidum , quatenus est ibi copia incolarum ; & urbs , quatenus muris debito modo cingitur . proprie autem dicitur civitas quae habet episcopum . uncore crompton en son jurisdictions mention touts les cities , & omit ely , nient obstant q̄ ad un evesque & un esglise cathedral , & mitta eins westminster , nient obstant que jammes nad asc ' evesq̄ . et el. c. . westminster est appel ū city : & anno ejusd . c. . ( ● statutes niēt imprime ) westminster est equalm̄t appel ū city ou borough il appiert ꝑ l' st. h. . c. . q̄ dōq̄s la fuit ū eves ●● westm . cassanaeus escrie , q̄ france ad deins les territories cities , & il ren ● c̄ reasō , p̄ ceo q̄ la sont cy plusors sees 〈◊〉 archievesq̄s & evesq̄s . clack . clack , sicome a clacker , forcer , & bard ' lane h. . c. . de q̄ le prim̄ , viz. de clacker lane , est , 〈◊〉 scinder les marks des barbits , q̄ fait ceo destre 〈◊〉 mein ● poys , & issint ● payer le mein ● custom al roy : de sorcer lane est , de clip ꝑ le ouster & pluis crineous part 〈◊〉 ceo : de bard ou beard lane est , 〈◊〉 scin ● l' ● este & coile del aut ' p̄te ● l toisō . claime . claime est un challenge ꝑ ascun home de le ꝓpertie ou ownership de un chose que il nad en possession , mes est deteigne de luy tortiousment : & le party que issint fait son claim p̄dra per ceo un grand advantage ; car en ascun cases il poit per ceo avoider un discent 〈◊〉 terres ; & en ascun cases il per ceo savera son title , que auterment serroit perde . come si home soit disseisie , & le disseisee fait continual claim̄ , cest adire , sil claimer les terres dont il est disseisie deins le an & jour devant le mort le disseisor , donque poit il enter , nient obstant le discent . auxy si fine soit levie del terre a un auter home , donq̄ cestuy que ad droit a ceo doit faire son claime deins cinq̄ ; ans apres le proclamation ad , fait , ou certifie , per le statute de h. . c. . mes un estranger que nul droit ad ne poit de son teste demesne enter , our faire clam̄ en le no ● m̄ de cestuy q̄ droit ad de avoider le fines deins les cinque ans , sans com̄andm̄t precedent ou assent subsequent : uncore gardian pur nurture , ou en socage , poit enter ou faire claim ' en le nosme del enfant que ad droit de enter ou faire claime ; & c ' aydera le estate del enfant , sans ascun cōmmandment ou assent , car la est privitie enter eux . claim de liberties estū suit ou petition al roy en le court 〈◊〉 exchequer ● aver liberties , & franchises ● estre confirm la ꝑ l'attorney geneneralle roy. coke ent. . clergie . clergie est prise divers voyes ; ascun foits p̄ tout le nombre de homes de religion , asc ' foits p̄ un plee a un indictment on appeal : & est define destre un ancient liberty de esg ● i se , confirm en divers parliamēt . et est , quāt un home est arraign̄ de felony , ou tiels semblables , devant un temporal judge , &c. & le prisoner pria sō clergie , cest adir̄ , p̄ aver sō liver , q̄l ē ancient temps fuit autant sicome il ust prie destre dismisse del temporal judge , & destre deliver al ordinary de purger luy mesm de m̄ offence . et donques le judge com̄ander̄ le ordinar̄ 〈◊〉 trier sil poit lier come ū clerk , en tiel livre & lie come le judge assignera . et si le ordinary certisie le judge q̄ il poit , donq̄s le prisoner navera judgmēt de ꝑder sō vie . mes c ● st libertie de clergie est restrain ꝑ les stat. de el. cap. . an . . ejusd . c. . an . ejusd cap. , . & ejusd . c. . & ejusd . c. . & . ejusd c. . & ejusd . ca. . & . veies crompt . justice de peace , fol. . &c. & stam. li. . ca. . & stat. de el. cap. . p̄ que clerks ne sont destr̄ deliv ' a lour ordinaries destr ' purg ' , mes jam̄es chesc ' hō● , com̄t niēt deins orders , est mis a lier al barre , esteant trove culpable , & convict de tiel felony , p̄ q̄ cest benefit uncore grāt , & issint arse en le main , & enlarge p̄ le primer tēps , si l' com̄issary ou deputy del ordinar̄ dit , legit ut clericus ; ou auterm̄t il suffre mort pur son peche . clerk. clerk ad deux significations , un com̄ est l' title de celuy q̄ ap ꝑtiēt al sāct ministerie de le esglise , cestascavoir ē ceux jours , ou minister ou deacō de quecūq̄ aut ' degree ou dignity , niēt obstāt q̄ en pristin̄ tēps nō solem̄ sacerdotes & diaconi , mes aux ' subdiaconi , cantores , acoluthi , exorcistae & ostiarii fueront deins cest accom̄t , si cōe ils sōt a cest jour ou le ley canon ad pleine poyar . et ē cest signification clerk est ou religious ( auterm̄t appel regular ) ou secular . h. . c. . laut ' signifi a ● ion ● cest parol denote tiels q̄ ꝑ lour function ou course ● vie usont lour plum ' ē asc ' court , ou aut m̄t ; come nosmemēt le clerk des rotules ● l parliam̄t , clerks del chancery , & tiels sēbles . clerico admittendo . clerico admittendo est un brief direct al evesque p̄ l' admittance de un clerk a un benefice , sur un ne admittas trie & found p̄ le party q̄ ꝓcure le brief . reg. orig . f. . clerk attaint . clerk attaint est celuy q̄ pria son clergie apres judgemēt sur luy done de felony , & ad son clergy allow ; tiel clerk ne poit faire son purgation . clerk convict . clerk convict est celuy q̄ pris son clergie devant judgmēt done sur luy 〈◊〉 le felony , & ad le clergie grant ; tiel clerk puit fair son purgation . nota , q̄ cel purgation fuit fait quant il fuit dimisse al ordinarie , la destre trie del enquest del clerks : & pur ceo ore per le stat. eliz. cap. . nul tiel est misse al ordinarie . closh . closh ou closse est un illoyal game prohibit per le stat ' fait en l' an e. c. . & est inhibit aux ' per le statute de h. c. . mes icy est plus ꝓperm̄t appel clash ; car est le mitter dun boul as neuf espingles de boys , ou neuf shank bones 〈◊〉 un beefe ou chival : & est ore usualm̄t appel kailes , ou nine-pins . coadjutor . coadjutor al disseisin est celuy que ove auter disseise un de son franktenemēt al use del aut ' & il serr̄ punie come un disseisor ; mes il nest tiel disseisor que gaine le franktenemēt , mes le franktenem̄t vest & est tout en celuy a que use le disseisin fuist com̄it , cōe appiert ē littleton l. . c. . de joyntenants . cocket . cocket est un seal ' q̄ apperteln̄ al custome-house le roy , & signifie auxy un escrowle del parchment , seal & deliver per les officers del custom-house as merchants , come un garrant q̄ lour merchandizes sont customes . cest ꝑol est use ē les veux stat. ore expires , faits e. . stat. . c. . & h. . c. . codicil . codicil est le volunt ou testam̄t dun home touchāt c̄ que il voit aver destre fait apres son mort sās l' nomination dasc̄ executor : ou auterm̄t il est un addition ou supplem̄t adde al ū volunt ou testamēt ap̄s le fini de c ● o , p̄ le supply dasc chose que le testa ● or ad oblie , ou p̄ ayder asc ' defect en le testament . de ceo poyes lier plus en swinbourne des volunts & testaments , part . . sect. . num . , , &c. coigne . coigne est un ꝑol collective , q̄ cōtain ē c̄ touts manners del several stāps & portraitures ● numm̄ . et c̄ est un des royalx preroga ● ives appēdāt a chesc ' prince , q̄ il solem̄t ē ses tr̄es demesū poit order & dispose le quantitie , & fashions de son coigne . et coment que ceo est le nerve 〈◊〉 tout merchandise & commerce , uncore le coigne ● un roy nest currant ē les royalms 〈◊〉 un aut ' roy com̄unem̄t , sinon al grand perde . si home oblige luy mesme ● render cent livers de loyal coigne 〈◊〉 angleterre a un auter , & al jour 〈◊〉 paym̄t ascun ● argent happa destr̄ coigne de espaigne ou de francois , ore l'obligation est bien performe , si ꝑ proclamation ils sont faits currant mony de angleterre . car le roy per son absolute prerogative poit faire ascun foreign coigne loyal coigne de angleterre a son pleasure ꝑ son proclamation . en case ou home est de pay rent a son lessor sur condition de re-entry , & le lessee paya le rent a son lessor , & il ceo receive , & mitta ceo en son burse , & puis en reviewant de ceo a mesme le temps il trova q̄ il ad receive asc ' counterfeit peeces , & sur ceo i ● refuse de emport ' les deniers , mes re-enter pur le condition enfreint ; ore son entrie nest loyal , car quant il ad accept les deniers , ceo fuit a son peril , & puis cest allowance il ne prendra exception al ascun de eux . collateral . collateral est ceo que vient eins , ou adhere al later ' ● un chose ; come collateral assurance est ceo q̄ est fait ouster & p̄ter le fait mesme : pur example , si home covenant ove un auter , & luy oblige p̄ le performance , l'obligatiō est appel collateral assurance , p̄ ceo q̄ est external , & sans le nature & essence del covenant . et cromp ● o ● fol. , dit q̄ destre subject al de pasturing des dāes le roy est collateral al soyle deins le forest . en mesme le man̄er poyomus nous dire , que libertie a pitcher sheds ou stalls pur un faire ē le soile ● un au ● ' home est collateral al terre . le private bois 〈◊〉 un com̄on ꝑson deins le forest ne poit estre succide sans le licence del roy , car il est un prerogative collateral al soile . man. part . . pag. . collateral garrantie ; veies tit . garranty . collation . collation est ꝓperment le donation de un benefice ꝑ l'evesque , q̄ ceo ad en son done ou patronage demesne ; & differ ● de institution en ceo , pur ceo que institution en un benefice est performe ꝑ l'evesque al motion & presentation ● un auter , q̄ est patron de mesme esglise , ou ad le droit del patron ꝓ hac vice : uncore collatio est use p̄ presentation en e. . stat. . & la est un brief en le regist . . b. appel de collatione facta uni post mortem alterius , &c. direct al justices del com̄on bank , eux commandant a directer lour br̄e al evesq̄ , p̄ l'admittance 〈◊〉 un clerk en le lieu 〈◊〉 un auter p̄sent ꝑ le roy , que devant le suit perenter le roy & le clerk del evesque morust ; car judgement un foits p ● sse p̄ le clerk le roy , & il morant devant q̄ il soit admit , le roy poit done son presentation al auter . collusion . collusion est , lou un action est port vers un auter per son agreement demesne , si le plaintife recover , tiel recoverie est dit per collusion . et en ascun cases le collusion serra inquire , come en un quare impedit , & assise , & tiels semblables , queux ascun corporation ou corps politique port envers aut ' al entent ● aver le tr̄e ou advowson dont le br̄e est port en mortmain . mes en avowrie , ne en asc ' action personal , le collusion ne serra enquire . veies le stat. de westm . . c. . que done le quale jus & enquirie en tiel case . colour . colour est un fained matter le quel le defendant ou tenant use en son barre quāt un action de trespasse ou un assise est port envers luy , en le quel il done le demandāt ou plaintiff un shew prima facie que il ad bone cause de action , lou en veritie il nest just cause , mes tantfolemēt un colour & visour 〈◊〉 un cause : & il est use al entent que le determination del actiō doit este ꝑ les judges , & nemy ꝑ un ignorant jurie de douze homes . e p̄ ceo un colour doit estre un matter en ley difficult al lay gentes . come p̄ example , a. port ū assise ● terre envers b. & b. dit que il mesme lesse mesme le terre al un c. p̄ terme de vie , & apres grant le reversion al a. le demandant , & puis c. tenant p̄ terme de vie morust , apres que decease , a. le demandant , claimant le reversion ꝑ force del grant , ( ou c. le tenāt p̄ vie ne unques attourne ) entra , sur q̄ b. entra , envers que a. pur mesme entrie port cest assise , &c. cest un bone colour , q̄ ceo que les lay gentes pensant q̄ le terre voile passe per le grant sans atturnment , lou en fait il ne voile passe , &c. auxy ē un action 〈◊〉 trespasse colour doit estre done , & ● eux sont ū infinite number , un pur example : en un action de trespasse pur prise de avers del plaintiff , le defendant dit , que devant le plaintiff reins avoit en eux , il mesme fuit possesse de eux come de les propter biens , & eux deliver al a. b. pur eux rebailer a luy quando , &c. & a. b. eux dona al plaintiff , & le plaintiff supposant le property destre en a. b. al temps del don̄ , prist eux , & le defendant eux reprist del plaintiff , sur que le plaintiff port l' action : cest un bone colour , & un bon plea. veies de ceo pluis en doctor & student , l. . c. . colour est pur ceo cause , viz. lou le deft . justifie ꝑ title en transgr̄ ou assize , sil ne done le plaintiff colour son plea amount tanq̄ al general issue , car si le defendant ad title il n'est culpable , co. . . colour de office. colour de office est touts foits prist in malam partem , & signifie un act malement fait per le countenance ● un office , & il port un dissimulant visage del droit del office , lou le office nest que vaile del fauxitie , le chose est ground sur vice , & le office est come ū shadow al ceo . mes ratione officii , & virtute officii , sont prises touts foits in bonam partem , & lou le office est le just cause del chose , & le chose est pursuant al office. plo. en dive & man. case . a. combat . combat , ē nr̄e antiq̄ ley , estoit un formal trial ● un ambigieux case ou controversie ꝑ l'ense ou bastons ● deux champions . veies glanvile l. . c. . britton c. . & dyer fol. . numb . . commandment . commandment est prise ꝑ divers significations : alc ' foits p̄ le commandment le roy , quāt ꝑ son mere motion & de son bouche demesne il jette asc ' hōe ē prison , stamf. plac. cor. fol. . ou des justices : et ceo commandm̄t des justices est ou absolute , ou ordinarie . absolute , sicome quant sur lour authoritie demesne , ou lour sapiēce & prudence , ils com̄ittont asc ' hōc a prison p̄ ū punishm̄t . ordinarie est , quant ils com̄ittont un pluis destre safem̄t gard , q̄ p̄ punishm̄t ; & hōe com̄it ꝑ tiel ordinarie com̄andm̄t est mainpernable , placit . cor. fol. . commandm̄t est use arere p̄ l'offence 〈◊〉 celuy q̄ com̄and aut ' home 〈◊〉 transgresser le ley , ou 〈◊〉 faire asc ' tiel chose que est encounter le ley , come murder , larcenie , ou tiels semb'ables , bract. l. . tract . . c. . les civillians appel cest commandm̄t , angelus de maleficiis . commandrie . commandrie fuit le nosme ● un manor ou chief messuage , ove q̄ tr̄es ou tenem̄ts fueront occupies ꝑteignont al priorie ꝑ s. johan de jerusalem , tanque fueront done al roy henry le huict ● statute fait en l'an de son reigne . et cestuy q̄ avoit le governm̄t 〈◊〉 asc ' tiel manor ou messuage fuit appel le commander , q̄ navoit rien a faire ou disposer de ceo , forsq̄ al use del priorie , & ● aver solem̄t son sustenance de ceo solonque son degree , q̄ fuit usualm̄t un frere de mesme le priorie , que eust este fait chivaler en les guerres encount ' infidels : & fueront jades appel knights de le rhodes , ou knights de malta , de lieus lou leur grand master inhabite . veies le dit statute , & le statute entituled de templaris , le decay des queux fuit grand encrease de cel order . et plusors de ceux commandries sont ē le pais nosmes le temple . commendam . commendam est un benefice q̄ esteant void , est commend al care 〈◊〉 asc ' sufficient clerk , destre supplie jesque il poit estr̄ convenim̄t ꝓvide 〈◊〉 ū pastor . et le voyer original de ceux commendams fuit ou pur cause de evident utilitie , ou necessitie cestuy a que l'esglise est com̄end ad les fruits & ꝓfits de ceo solement ꝑ un ● certain temps , & le nature del esglise nest alter ꝑ ceo , mes est sicome un chose deposite en les maines ꝑ cestuy a que il est com̄end , que nad forsq̄ le custody de ceo , que poit estre revoke . commissary . commissary est un nosme de ecclesiastical jurisdiction , apꝑteinant a cestuy que exercise jurisdictiō spiritual en lieus del diocesse de cy grand distance del principal ci ● y , q̄ le chancellor ne poit appeller les subjects al chief consistorie del evesque sans lour grand molestation . cest commissarie est appel ꝑ les canonists commissarius , ou officialis foraneus ; & est ordeigne a cel special fine , q̄ il executera l'office & jurisdiction del evesq̄ ē les boundaries del diocess , ou ē tiels paroches que sōt peculiars al evesque , & exempt del jurisdiction del archdeacon : car ou ꝑ prescription , ou per composition , la sont archdeacons que ont jurisdiction en lour archdeaconries , sicome en plusors lieus ils ont , la cest commissarie est superfluous , & pluis al detriment que al bone des gents . commission . commission est tant en le com̄on ley come le parol delegate ē l' civil , & est prise p̄ le garrant ou letters patents que touts homes , ayant jurisdiction , ou ordinarie ou extraordinarie , ont pur lour poyar de oyer ou termin̄ asc ' cause ou action . uncore cest parol est asc ' foits extend pluis largem̄t que al choses 〈◊〉 judicature ; sicome le commission ● purveyors ou prisors , h. . c. . mes ove cest epitheton alt , il est pluis cōmunem̄t use p̄ le alt-commission court , institute & foundue sur le stat. de el. c. . p̄ l'ordināce & reformation de touts offences en asc ' chose appertinent al jurisdiction ecclesiastical , mes especialm̄t tiels q̄ sōt 〈◊〉 pluis alt nature , ou al meins requir̄ pluis grād punishmēt q̄ ordinarie jurisdiction poit afford . veies les stat. car. . c. . & car. . c. . ꝑ q̄l l'avātdit court est ꝑ tout abolie . commission de rebellion . commission de rebellion , autermēt appel un brief de rebellion , est use quant ū hōe apres proclamation fait ꝑ le viscount , sur ū or ● ou proces del chancerie , south penal , y 〈◊〉 sō allegeāce a p̄ sent ' luy mesme al court ꝑ ū jour certain , ne appiert pas . et cest com̄ission est direct per voy de command al certain persons , a fine que ils , ou trois , 〈◊〉 ux , ou un de eux , apprehendont ou causont destre apprehend le partie , come un reb ● l & contemner de leys le roy , en quelcunque lieu que ils luy troveront deins le royalme , & de presenter luy ou luy cause destre present al court sur un jour en ceo assigne . committee . committee est cestuy ou ils a que le consideratiō ou ordinance 〈◊〉 asc ' chose est refer , ou ꝑ ascun court , ou consent des parties a que il appertient : sicome ē parlm̄t un bill esteant lie , est ou admit & pas , ou denie , ou refer al consideration 〈◊〉 asc ' certein hōes appoint ꝑ le meason , les queux sur ceo sont appelles un committee . mes cest parol est autermēt use ꝑ kitchen , fol. . ou le relict del tenant le roy est appel le committee le roy cest ascavoir , un cōmise ꝑ l' ancient ley del terre al care & protection le roy. common . common est le droit q̄ home ad de mitter se● beasts a pasture , ou de user le terre que nest son ꝓper soile . et nota q̄ sont divers commons , cest adire , common en grosse , common appendant , common appurtenant , & common per cause de vicinage . common en grosse est , lou jeo , ꝑ mon fait , grant a un auter que il avera common en ma terre . common appendant est , lou home est seisie de certaine terre , a que il ad common en auter soile , solement ꝑ ceux beasts que compost la terre a que il est appendant , except oysons , chivers , & porceaux ; quel common est ꝑ prescription , & de common droit , & li est appendant al ter̄e arable solement . common appartenant est de mesme nature ove common appendāt ; mes est ovesque touts manners des avers , cybien porceaux & chivers , come chival● , vaches , & tiels que compost le terre . et tiel cōmon poit estre fait a ceo jour , & several del terre a que il est appurtenant , mes issint ne poit common appendant . common pur cause de vicinage est , lou les ten●nts de deux seigniors sont seisies de deux seigniories dont l'un gist p̄s l' auter , & chescun de eux ont use de temps dont memorie ne courr̄ de aver common en aut ' ville ovesque touts beasts commonable . mes l'un ne poit mitter ses avers en le terre ● ' auter , car la ceux de l'auter ville poient eux distraine dam̄age feasant , ou aver action de trespasse : mes ils eux mittera en lour camps demesne , & si ils estray en les cāps del aut ' ville , ils doint eux sufferer . et les inhabitrāts de l' ū ville ne doient mitter eins beasts tants cōe ils voile , mes ayant regard al frākerenem̄t del inhabitants de le auter , car aut'ment il ne serroit bone vicinity , sur que tout depend . common fine . common fine est un certain sum̄ des deniers q̄ les resiants deins un leet payont al sn̄r del leet ; & est appel en ascuns lieus capitagium vel capitale argentum , en ascuns lieus certum letae , & fuit al primes ( come semble ) grant al sn̄r vers le charge de son purchase del leet , ꝑ que les resiants avoyent ore un aise p̄ faire lour suit royal deins l' man̄or , & nemy destre compells 〈◊〉 alter al tourne le viscount de fair̄ ceo . et p̄ cest cōmon fine le sn̄r doit prescriber , & ne poit distre ● n p̄ ceo sans prescription , come appiert en godfrey's case , en r ● p. fo . . b. common ley. common ley est p̄ le pluis part prise , voyes . prime ● m̄t , p̄ les leyes de cest realm̄ simply , sans ascū aut ' ley , cōe customarie , civil , spiritual , ou quecunque auter ley joyne a ceo ; come quant est dispute en nostre leyes de engleterre , quid doit de droit estr̄ determine ꝑ le common ley , & quid ꝑ spiritual ley , ou le court del admiral , ou tielx semblables . secondarim̄t , il est pris p̄ les courts le roy , come le bank le roy , ou com̄on place , tātsolem̄t p̄ monstre un difference perent ' eux & less base courts ; come customary courts , court-barons , county courts , pipowders , & tielx semblables : come quant un plee de terre est remove hors de anciēt demesne , p̄ ceo que le terre est frank-fee , & pleadable al common ley , cest adire , en le court le roy , & nemy en ancient demesne , ou en ascun aut base court. tiercem̄t , & pluis usualm̄ , ● common ley est enten due tielx leyes q̄ fueront generalm̄t prise & tenus p̄ ley devant q̄ asc ' stat. fuit fait p̄ alt ' ceo : cōe p̄ example , tenant p̄ vie , ● e p̄ ans , ne fueront destre punish p̄ fesans wast al common ley , tanq̄ le statute de glouc. c. . le quel don̄ ū action de wast envers eux . mes tenant ꝑ le curtesie & t ● nant en dower fu ● ront punishable pur wast al common ley , cest adire , per le usual & common received leys le realm , devant le dit sta ● ute fuit fait . common pleas. common pleas est le court le roy jam̄es tenus en le sale de westminster , mes en ancient tēps moveable , sicōe appiert ꝑ mag. char. c. . mes gwyn , en le preface a son lecture , dit , que jesque le temps que henry le tierce grant le grand charter , la fuer̄ forsq̄ deux courts solem̄t appel les courts le roy , de que ū fuit l'eschequer , & l'auter le banke le roy , quel fuit appel auxly aula regia , p̄ ceo que el ensue le court ; & q̄ sur le grant de cel chart ' le court 〈◊〉 common pl ● es fuit erect & settle ē un lieu certain viz. al weminster ; & p̄ ceo touts les briefs fueront faits ove cest returne , quod sit coram justificariis meis apud westmonasterium , ou devant le party fuit commaund per eux de appearer coram me vel justiciariis meis , sans ascun addition de ascun lieu certein . touts civil causes , cybien real come personal , sont , ou fueront ē ancient temps , trye en cest court , accordant al strict ley del royalm̄ : et ꝑ fortescue , cap. . il semble daver este le sole court pur real causes . le primer judge de ceo est appelle seigniour chiefe justice del common plees , accompany ove trols ou quater assistants ● u associates , que sont create per letters patents del roy , & sicome fuit enstalle ou place sur le ● ank ꝑ le seigniour chancellor & seigniour chiefe justice del court , come appiert ꝑ fortescue ca. . que expresse touts les circumstances de cel admission . le residue des officers appertinant a cel court sont ceux ; le custos brevium , trois prothonotaries , chirographer , dixe quater philasers , quater exigenters , clerk des garrants , clerk des juries , clerk del treasury , clerk de argent le roy , clerk des essoines , clerk des utlagaries . common jour en plee de terre . common jour en plee de terre , anno r. . stat. cap. . signifie un ordinarie jour en le court , come octabis michaelis , quindena paschae , &c. come poies veier en le statute h. . concernant gener . l jours eu le bank. c ● mm ● tes . commotes semble destre un parol composit , del preposition c ●● , & motio , i. e. dictio verbum , & signifie en gales le part dun countie ou hundred , anno h. cap. . il est escrie commoithes , an. . h. . ca. . & est use pur un collection fait sur les gents de ce ● ou cest hundred ꝑ minstrels de gales . communi custodia . communi custodia est un brief que gisoit pur cel seigniour , le tenant de quel reindrant p ● r service de chivaler morust , son eigne fils deins age , envers un estranger , que enter le terre , & obtaine le gard del corps . il semble de prender le nosme del common custome ou droit en ceo case , que est , que le seigniour avera le gard de son tenant jesque son pleine age ; ou p̄ ceo , que est common pur recoverie ● l terre & tenant , come appiert ꝑ le forme de ceo , v ●● l n. b. . regist . orig. . compromise . compromise est un mutual promise de deux ou plusors parties que sont al controversie , pur submitter eux mesmes & touts differēces ent ' eux al agard , arbitremēt , ou judgmēt ● l ua ou plusors arbitrators , ent ' eux indifferentment essi ● u , p̄ determiner & ad ● udger des touts matt's refe ● es , & sur que les parties differont . computation . computation est use en le common ley pur le voyer & indiff ● rent construction de temps , issint que ne le un partie ferra tort al auter , ne le determination de termes referr̄ a large , deste prise un voy ou auter , mes compute accordant al droitural censure de la ley. come si indentures de demise sont i ● grosse , portont date le unisme jour de may , . de aver & tener le terre en s. pur tro ● s ans de cest temps , & les indentures sont deliver le quart jour de june en le an avantdit : en cest case , de cest temps , serra account del jour del deliverie des indentures , & nemy ꝑ asc ' computation del date . et ● i le dit indenture soit deliver al quart de la horologe puis meridie le dit quart jour , cest leas finiera le tierce jour de june en le tierce an ; car la ley en cest computation reject touts fractions ou divisions del jour , pur le incertainty , que touts foits est le mere de contention . issine ou le statute de enrolments fait anno henr. . cap. . est , que les escripts serront inrolle deins size moyes apres le date de mesme les escripts indent , si tiels escripts on t date , les size moyes serront account del date , & nemy del deliverie : mes si fault date , donque il serra account del deliverie . cok ● li. . fol. . si ascun fait est monstre a un court al westminster . le fait per judgement del ley remain en court tout le terme en que ceo est monstre ; car tout le term en ley nest que un jour . coke l. . f. . si un esglise happa void , & le veray patron ne p̄senta deins size moyes , donques le evesque del dioces poit collate son chaplein : mes ceux size moyes ne serra account accordant al vine huict jours al moyes , mes accordant al kalen ● . et la est grand diversitie en nostre common parlance en le singular numbre ; come un twelve-month , que enclude tout lan solonq̄ le kalendar , & twelve-moneths , que serra compute solonque vint huict jours a chescun moyes . veies co. l. . f. . b. computo . computo est un brief issint appel del effect ▪ pur ceo q̄ il enforce un bailif , chāberlain , ou receiver , a render son account . veil n. b. f. . il est foundue sur le statute de west . . c. . le quel pour vostre mieux intelligence vous poyes lier . et il auxy gist p̄ executors de executors . ed. . stat. de provis . victual . cap. . tiercemēt , envers le gardein en socage , pur wast fait en le minority del heir̄ , marl. cap. . et veies pluis en queux auters cases il gist , reg. orig. f. : veil n. b. f. . & f. n. b. . concealers . concealers sont tiels q̄ trovont terres conceal , ceo est , tiels terresq̄ sont privimēt detein̄ del roy per common ꝑsons , ne ayant pas ascū chose de monstre p̄ eux , an. . el. c. . ils sont issint appel a concelando , come mors a movendo , ꝑ antiphrasin . conclusion . conclusion est , quant home ꝑ lon fait demesne sur record ad charge luy m̄ ove ascun duty ou auter chose ; cōe si home que est frank confesse luy m̄ destr̄ villain de a. sur record , & ap̄s a. prist ses biēs , il serra conclude adire ē ascū action ou plea en ap̄s que il est frank , per reason de son confession demesne . issint si le viscount , sur un capi as a luy direct , return quod cepit corpus , & uncore nad le corps ē court al jour del retorn , ill serra amercie : & sil fuist sur un capias ad satisfaciend ' , le plaintif poit aver son action envers le viscount pur le escape ; car per tiel retourn le viscount ad conclude luy mesme . et cest parol conclusion est prist en un auter sense , cōe p̄ le fine ou darrein ꝑt de ascun declaration , barre , replication , &c. come ou al barre covient estre un replication , le conclusion de son plea serra , et hoc paratus est verificare . si en dower le tenant pleda , ne unques seisie que dower doit render , le conclusion serra , et de hoc ponit se super patriam . et en quel manner le conclusion serra accordant al nature des several actions , veies kitch . f. , , &c. concord . concord est define destre le voyer agreem̄t ent ' ꝑties que entendont le levying ● un fine de terres un al auter , quel voy & en quel manner les terres serront passe : car en le form ' de ceo plusors choses sont destre cōsider . vide west . part . . tit . fines & concords , sect . . concord est auxy un agreem̄t fait sur ascun trespasse commit perent ' deux ou plusors , & est divide en un concord executorie , & execute . vid. plow . casu reniger & fogasse , fo . , & . ou il appear ' ꝑ le opinion ● ascuns , que l'un ne lia pas , come esteant defective ; l' aut ' , esteant absolute , oblige le ꝑties . et uncore ꝑ le opinion de auters , en m̄ le case , il est affirm , que concords executorie sont perfect , & ne meynes lyeront pas q̄ concords executed , fol. . b. est teign de tardiff temps , q̄ entant que actions sur assumpsits sont ore en use queux sueront rare devant le reigne de roy h. . que ou un accord ove un assumpsit sur quel un action gist est bone plea en touts ceux actions , a queux ceo devant fuit bone plea si fuit execute . concubinage . concubinage est un exception vers luy q̄ port action pur sa dower , ꝑ q̄ il est alledge , que el ne fuit loyalment espouse al partie en queux terres el quere destr̄ endowe , mes son concubine . brit. cap. . bract. li. . tract . . cap. . conders . conders sont tiels q̄ estoiāt sur les alt lieus prochein al coast del mere , al tēps del piscary p̄ haleques , a faire signes ove ramaus , &c. en lour maines al piscarers , quel voy le troupe des haleques passont ; car ils q̄ estoyant sur ascun alt petre poyent ceo mieux veier q̄ tiels que sont en lour neifes . ceux sont auterment appel huers & balkers , come appiert ꝑ le statute de jac. cap. . condition . condition est un restraint ou bridle annex al chose , issint q̄ ꝑ le non ꝑformance , ou feasans de ceo , le partie al condition receivera prejudice & perde , & per le performance & fair̄ de ceo , commoditie & advantage . touts conditions sont ou conditions actual & expresse , q̄ux sont appel conditions en fait : ou ils sont implicit ou tacit ' , & nient expresse les queux sont conditions en ley. auxy touts conditions sont ou conditions precedent & vaiant devant l'estate , & sont execute ● ; ou subsequent & venient apres l' estate , & executorie . le condition precedent gain & obtain le chose ou estate fait sur condition , ꝑ le ꝑformance de le condition . le condition subsequent garde & continue le chose ou estate fait sur condition , per le performance del ycel . actual & expresse condition , q̄ est appelle un condition en fait , est un condition annexe per expresse parols a feoffm̄t , lease , ou graunt , ou ē escript , ou sauns escript ; si come jeo enfeoffe un hōe ē terres , reservant rent destre payed a tiel feast , sur condition , que si le feoffee faile de payment al jour donques il serra loyal pur moy de re-enter . condition implicite ou tacit ' est , quant hōe graunt al aut ' le office destre g ● rde in 〈◊〉 un park , seneschal , bedle , bailif , ou tiels semblables , p̄ terme de vie : & nient obstant que la ne soit ascun condition expresse en le graunt , uncor ' le ley parle covertmēt 〈◊〉 un condition , quel est , que si le grantee ne executa pas tou ● s points apperteignont a son office , per luy mesme ou son sufficient deputy , donque serra loyal pur le grantor de ent ' , & discharge luy de son office. condition precedent est , quāc un lease est fait al un pur vie , sur condition , que si le lessee voyle payer al lessor xx . li. a tiel jour , donques il avera fee-simple : icy le condition precede l' estate en fee-simple , & sur le performance de condition gain fee simple . condition subseq ● ent , & veniens apres , est , quant un grant a j. s. son manor de dale en fee-simple , sur condition , que le grauntee payer a luy a tiel jour xx . l. ou auterment que son estate cessera : icy le condition est subsequent & ensuant le estate en fee , & sur le performāce ● y ● el continue l'estate . veies pluis de ceo en cok. li. . fo . . & en lit. li. . cap. . & perkins titulo ultimo ● conditions . confederacy . confederacy est , quant deux ou plusors luy mesmes confedre de fair̄ ascn̄ male ou damage al auter , ou de faire ascun chose illoyal . et coment q̄ br̄ de conspiracy ne gist , sinon q̄ le ꝑtie soit endite , & en loyal manner acquite , car issint sont les ꝑols del breve ; uncore faux confederacie inter divers persons serr̄ punie , com̄t que nul chose soit mise en ure : & ceo appiert ꝑ le livre de assis . pla . . ou la est un note , que deux sueront endire de confedracie , chescun de eux a mainta ● n auter , le q̄ lour meistre soit veray ou faux ; & nient obstant que nul chose fuit suppose destre mise en ure , les parties fueront mis a responder , pur ceo que cē chose est defendue en la ley. issint en le prochein article en m̄ le livre , enquirie serr̄ fait de couspirato ● s & confederators , q̄ soy enter eux illiount , &c. de fauxemēt endit ' ou acquitt ' , &c. le manner del alliance , & ent ' queux : q̄l ꝓve auxy , que confederacie de enditor ou acquitt ' , com̄t que rien soit execute , est punishable ꝑ la ley. et est d ● str̄ observe , que ceux confederacies punishable ꝑ ley devant que ils sont execute , covient de aver quater incidents ; primerment , estre declare ꝑ ascun matter de ꝓsecutiō , cōe ꝑ f ● asant de bōds ou promises l'un al aut ' ; seconderm̄t , estr̄ malicious , cōe pur unjust revenge ; tiercement , estre faux encont ' un innocent ; & dernierm̄t , estr̄ hors de court , voluntarimēt . confession del offence . confession del offence est ● quant un prisoner est appeal ou indite de treason ou felonie , & trahe al barre destr̄ arraigne , & son indictment est lie a luy , & il est demande per le court que il voyle dire a ceo ; donque ou il confesse le offence & le enditement destre voyer , ou il estrange luy m̄ del offence , & plede nient culpable , ou auterment done un indirect respons , & issint en effect estoia mute . confession poit estre fait en deux sorts , & a deux several fines , l'un est , il poit confesse le offence de que il est indict appiertment en le court devant le judge , & submit luy mesme al censure & judgement de ley ; quel confession est le pluis certain respons & meux satisfaction que poit estr̄ deliver al judge a condemuer le offendor , issint q̄ il proceda frankment & de son volunt demesne , sans ascun menace , force , ou extremicie use ; car si le confession surde de ascun de ceux causes , il ne doit estre recorder . come feme fuit indict pur le felonious embleer de pane al value de . & esteant de ceo arraigne , el confesse le felonie , & dit que el ceo fait ꝑ le commandemēt 〈◊〉 sa baron ; & les judges en co●passion ne voillent recorder sa confession , mes cause luy le pleader non culpable al felonie : sur que le jurie trove que el emblee le pane per le compulsion de sa baron encounter sa volunt , p ● r quel meistre el fuit discharge . ass . pl. . l' auter sort de confession est , quant le prisoner confesse l' endictm̄t destre voyer , & q̄ il ad commit le offence de q̄ il est endict , & donq̄ devient un approver cest adire , un accuser de auters queux ont commit m̄ le offence de q̄ il est endict , ou auters offences ove luy ; & donq̄ pria le judge daver un coroner assigne a luy , a que il poit faire relation de ceux offences , & del pleine circumstances de eux . la est auxy un tierce sort ● confession fait ꝑ un offendor en felonie , q̄ nest en court devant le judge , come l' auters deux sont , mes devant l' coroner en un esglise ou aut ' lieu priviledge , sur que l' offendor ꝑ l' ancient ley del roialm est de faire son abjuration hors del royalme . confirmation . confirmation est , quant un que avoit droit al ascun terres ou tenements fait un fait a un auter que voit ent le possession ou ascun estate , ovesque ceux parolx , ratificasse , approbasse , confirmasse , ove entent de enlarger son estate , ou fair ' son possession ꝑfect , & niēt defeasible ꝑ luy que fait le confirmation , ne ꝑ ascun auter q̄ poit aveigner a son droit . dont veies pluis ē lit. lib. . cap. . de confirmation . confiscate . confiscate , cest parol est prise del latin ꝑol fiscus , que originalment signifie un hanaꝑ ou fraile , mes ꝑ implication le treasure del soveraigne , p̄ ceo q̄ en veiel temps il fuit mis en hanaꝑs ou frailes . et nient obstant que nostre roy ne mis so ● treasure en t ● els choses , uncore cōe les romans ont dit , que tiels biens q̄ fueront forfeit al treasure del emperor esteant bona confiscata en mesme le manner nous diomus de tiels biens que sont forfeit al eschequer de nostre roy. et le title de aver ceux biens est done al roy ꝑ le ley , quant ils ne sont claime ꝑ ascun aut ' ; come si home soit indite , q̄ il felonyousmēt emblee les biens dun aut ' home , lou en veritie ils fontles ꝓper biens l' endltee , & ils sont mises en court vers luy come maneur , & la demād est de luy , que il dit as dits biens ; as queux il disclaima : per cel disclaimer il perdra les biens , coment que apres ils soit acquite del felonie , & le roy eux avera come confisq̄ . mes auterment est , sil ne disclayma en eux . mesm̄ le ley est ou biens sont troves en le possession dun laron , queux il disavowa , & puis est attaint de aut's biens , & nemy de ceux ; icy les biens queux il disavowa sont al roy confisques : mes ussoit il attaint de mesmes les biens , ils serroient aver este appelles forfeits , & nemy confisques , nient obstant son disavowment . issint si appeal de robberie soit port , & le plaintiff interlessa ascun de ses biens , il ne serra receive de enlarger son appeale ; & entant que nul est icy daver les biens issint interlessee , le roy eux avera come confisque , accordant al veil dit , quod non capit christus , capit fiscus . et come en le ease avantdit le ley punie l' owner p̄ son negligence ou connivencie , issint le ley abhorre malice , en querance le sanke dascun sans just cause . et p̄ ceo si a. ad l' biens de b. ꝑ bailm̄t , ou trover , & b. port appeale vers a. p̄ prender eux feloniousmēt , & est trove q̄ eux fueront les biens le plaintiff , & que le defendant vient a ceux loyalment ; en cest case ceux biens serrōt confisque al roy p̄ le faux & malicious appeale . congeable . congeable veigne del ꝑol francois conge , id est , venia , & signifie en nr̄e cōmon ley tant come loyal , ou loyalm̄t fait ; & issint est use ꝑ littleton en son . sect . lou il dit q̄ l' entry del disseisee est congeable . conge de eslire . conge de eslire , venia eligendi , est le permission royal de roy a asc ' deane & chapter ē temps de vacation đ eslire un evesq̄ , ou a ū abbey ou priorie đ son foundation demesn̄ , đ eslire lour abbot ou prior. fitzh . nat. breu. fol. . b. . b. c. &c. monsieur gwyn ē le preface a ses lectures dit , que le roy đ angleterre , come soveraine patrō đ touts archievesqueries , evesqueries , & aut's benefices ecclesiastical , ad de antient temps frank disposition de touts dignities ecclesiastical , oucunque ils happa destre void , investant eux primerm̄t per baculum & annul ' & puis ꝑ ses letters patents ; & q̄ en ꝓgresse de temps ils dōe poyer as ● aut's a fair election south asc ' formes & cōditions ; cōe nosmem̄t , q̄ ils a chesc ' vacation demāderont del roy conge de eslire , cestascavoir , licence a ꝓce ● al election , & puis de obsecrer son royal assent , &c. et ouster il affirm ꝑ bone ꝓbation hors des livres del common ley , q̄ le roy joan fuit le primer que granta ceo , & que il suit puis confirme per westm . . c. . quel statute suit fait anno . e. . & arere per le statute de art. cleri , c. . q̄ fuit ordaine anno e. . stat. . conjuration . conjuration est un compact ou piot fait ꝑ homes combinant eux mesmes ensemble per serement ou parol a fa ● r asc ' publique leide . mes il est pluis communem̄t use p̄ tiels queux o ● t personal parlance ove le diable ou male esperit , a cognostre ascun secret , ou de faire asc ' chose . anno eliz. c. . et le difference ꝑenter conjuration & witchcraft poit este ceo : pur ceo q̄ l' un semble ꝑ orizons & invocation sur le potent nosme ● dieu , 〈◊〉 compeller l' diable a dire ou faire q̄ il luy command ; & l' aut ' fait plus ꝑ un amicable & voluntarie parlance ou concord ꝑenter luy ou el , & le diable ou esperit , daver sa ou sō volunt & choses effect ē lieu de sangue ou aut ' don̄ offer a luy , p̄merm̄t 〈◊〉 sō ou sa soul. et ambideux ceux differont de enchantments ou sorceries , pur ceo q̄ sont ꝑsonal parlances ove le diable , com est dit ; mes ceux sont forsque medicines & ceremonial formes de parols , communemēt appel charms , sans apparition . conservator del peace . conservator del peace est celuy que ad un especial charge ꝑ vertue 〈◊〉 son office a veier le peace le roy observe . quel peace ē effect est define destre , un detention ou abstinence 〈◊〉 cel injurious force & violence q̄ homes irregular & indomit sont ē lour natures apt 〈◊〉 user envers auters , sinon q̄ ils fuer̄ restrain ꝑ leys & pavor 〈◊〉 castigac ' . de ceux conservators lambert ouster dit , que devant le temps del roy e. . q̄ primerment constitute justices del peace , la suer̄ divers ꝑsons q̄ ꝑ le common ley aver̄ interest ē le gardiancy del peace . de ceux , ascun ont ceo charge come incident a lour offices , & issint include deins m̄ , niēt obstāt ils fuer̄ appel ꝑ l' nosm̄ de ● our office solemēt : asc ' aut's ont ceo folem̄t , cōe 〈◊〉 luy m̄ , & fuer̄ de c̄ nosm̄ custodes pacis , gardians ou conservators del peace . et ceux ambideux sorts sont areres subdivide ꝑ lambert en son eirenarcha , l. . c. . conservator del truce . conservator del truce fuit un officer constitute en chescun port del mere south les letters patents le roy , & ad l. p̄ son annual salarie al meins . son charge fuit ● enquirer de touts offences saits envers le truce & safe conducts del roy sur le plein mere , hors des pais & hors des franchises del cinque-ports le roy , come les admirals de custome ont use de faire : & tiels aut ' choses cōe sont declare anno h. . c. . touchant cest chose poyes lier l' auter statute de anno h. . c. . consideration . consideration est l' essential cause 〈◊〉 un contract , sans le quel nul contract poit lier le parties . ceo consideration est ou expresse , sicōe quāt un hōe bargaine a done vint soulz p̄ ū chival : ou est imply , sicōe qu ● le ley m̄ enforce ū consideration ; cōe si un hōe vient ē ū cōmon hostel , & la cōmorant asc ' tēps , prist viands & gisure ; ou asc ' , p̄ luy mesme ou son chival , le ley presume q̄ il entend a payer p̄ ambideux , nient obstant riens soit covenant perenter luy & son hostler , & p̄ c̄ sil ne discharge pas le meason , le hostler poit retain̄ son chival . auxy la est consideration ● nature & sanke , & valuable consideration : & p̄ ceo si hōe soit endet a divers , aut's , & nien obstant , ē consideration ● natural affection , done touts ses biens a son fits ou cousin , ceo serra entend destre un fraudulent done deins l' act de eliz. c. . p̄ ceo q̄ cest act entend ū valuable consideration . consistory . consistory est ū parol emprent del italianois , ou pluis tost lombards , & signifie tant come praetorium . est vocabulum utriusque juris , & est use p̄ le lieu del justice ē les courts espirituals eu christians . consistory . consolidation est use p̄ le combinancie & unificence ꝑ deux benefices ē un : & cest ꝑol est pris de le ley civile , ou il ꝓꝑm̄t signifie ū uniting del possession , occupation , ou ꝓfit , ove le ꝓpertie . come si home ad ꝑ legacie usum fructum fundi , & puis purchase le propertie ou fee-simple del heir ; en cest case un consolidation est fait des profits & property . vide brook tit . union . conspiracie . conspiracie , nient obstant q̄ ē latine & francois est use p̄ ū agreemēt des hōes a faire un chose bone ou male , uncore il est cōmunem̄t prise ē nr̄e ley ē le male part ; & est define en e. . stat. . destre un agreement 〈◊〉 tiels q̄ confederont ou lieront eux mesmes ꝑ serem̄t , covenant , ou aut ' alliance , q̄ chesc ' de cux portera & aidera lauter fauxm̄t & maliciousm̄t , 〈◊〉 enditer , on fauxm̄t a mover ou maintainer plees ; & aux ' tiels q̄ causant enfants deins age ● appealer hōes 〈◊〉 felony , ꝑ q̄ ils sont imprison & duremēt grieve ; & tiels q̄ reteignout gentes ē le pais ove liveries ou fees de maintainer lour actions malicious : & ceo extend cybien a les prisors , cōe les donors . aux ' seneschals & reeves 〈◊〉 grand sn̄s , q̄ ꝑ lour seign̄rie , office , ou poyar , assume 〈◊〉 port ' ou maintainer quarrels , plees ou debares , q̄ concernout aut ' parties que tiels que touchāt l'estate de lour sn̄rs , ou de eux mesmes . anno . e. . c. . . h. . c. . et de ceo veies pluis , h. . c. . h. . c. . auxy en le veiel livre de entries , verb ' conspiracie . cest ꝑol en les lieus devāt rehearse est prise pluis generalmēt , & est confound ove maintenance & champerty ; mes en ū pluis special significatiō il est prise p̄ un confederacie ꝑent ' deux ou plusors , fauxm̄t endit ' ū , ou 〈◊〉 ꝓeurer un destre endict ' 〈◊〉 felony . et le punishm̄t ● conspiracie sur un indictm̄t de felony al suit le roy est , que le party attaint ꝑdera sont frank ley , al entēt q̄ il ne soit impannel sur juries ou assises , ou tiels semblables employm̄ts , p̄ le testification del voyertie : & sil ad a fair ē le court le roy , q̄ il fait son attorney ; & q̄ ses t'res , biēs & chattels sont seisie ē les mains le roy , ses t'res estreape , ses arbres defosse , & son corps commise al prison . lib. assise . crompton . b. ceo est appel villanous judgement . mes si si le partie grieve voyle suer un brief de conspiracie , donque veies fitzh . natur. brev. . d. . i , &c. constable . constable est diversement use ē le cōmon ley. et primerm̄t , le constable 〈◊〉 angleter ' q̄ est auxy appel marshal , stanf. pl. cor. fol. . de l' authoritie & dignitie de quel home poit trover plusors arguments & signes , cybien ē les statutes , come les chronicles ● c'royalm son poyer consist en le care del common peace del ter̄e , ē faits marshal , & choses de chivalry , lamb. dutie de constab . numb . . ove que agree le statute de r. . cap . stat. . de ceo officer ou magistrate , gwyn , en le preface a ces lectures , dit a tiel effect ; le court de constable & marshal finist contracts touchant faits de chivalrie hors del royalme , & treat choses concernont guerres deins le royalme , come combats , blasons de armory , & tiels semblables ; mes il nad a fair̄ ove battel en appeale , ne gen̄almēt ove ascun aut ' chose que poit estr̄ trie per les leyes de ter̄e . veies fortescue cap. . cest office en temps par devant fuit apperteynant al sn̄rs de certain manors jure feudi ; & pur quel cause ceo discontinue veies dyer . pl. . hors de cel magistracie ( dit lambert ) ● uer̄ trahe ceux south constables , les quels nous appellomus constables des hundreds & franchises , & primerm̄t ordein ꝑ l'statute de winchest . e. . le quel appoint p̄ le conservation del peace , & view 〈◊〉 armor , deux constables ē chesc ' hundred & franchise ; & ceux sont a cest jour appel alt constables , p̄ ceo que le encrease des gents & peches ad arrere south ceux fait aut's en chesc ' vill ' , appel petit constables , queux sont de semblable nature , mes de inferior authority al auter . ouster ceux , la sont officers de particular lieux appel ' per cest nosme ; come constable ● l tower , stanf. . h. . . constable de exchequer , h. . st. . constable de dover castle , camb. brit. p. . f. n. b. aut'mēt appelle castellaine . manwood part . c . . de ● es leys del forest , fait mention 〈◊〉 un constable del forest . consuetudinibus & servitiis . vide prescription . consuetudinibus & servitiis est un breve , & gist lou jeo ou mes ancestors , depuis le limitation 〈◊〉 assise , ( p̄ quel veies le title 〈◊〉 limitation en le collection de statutes ) ne fueront seises des customes ou services de mon tenant devant ; donques jeo aver cest br̄e p̄ recover ' ceux services . anxy le tenant poit aver cest br̄e vers son seigniour ; mes apres que le tenant ad count , le seigniour defendera les motes del count , & repliant dirra , que il ne distreina pas pur les customes dont le count est ; & donques il countera tout le count de les customes & services ; & donques le tenant , que fuit plaintiff , deviendra defendant , & defendra per battaile ou grand assise . consultation . consultation est un breve , ꝑ q̄ ū cause esteant ꝑ devant remove per prohibition hors del court ecclesiastical , ou court christian , al court le roy , est la returne arere : car si les judges del court le roy , comparont le libell ove le suggestion del partie , trovant le suggestion faux , ou nient prove , & pur ceo le cause destre tortiousment appel del court christien ; donque , sur ceo consultation ou deliberation , ● s decree ceo destr̄ returne arere ; sur que le brief en ceo case obtaine est appel un consultation . de ceo vous poyes lier le regist . orig. fo . . jesque fol. . vet. nat. br. fo . . & f. n. b. fol. . contenement . contenement semble destre le franktenemēt terre q̄ gist al tenemēt ou meason q̄ est en son occupatiō demesne : car en magna charta , cap. . la sont ceux parols ; un frank home ne serra amercie pur un petit offence , mes accordant al quantitie del offence , & pur un petit offence , mes accordant al manner de ceo , savant a luy son contenement ou franktenement : et un merchant serra auxy amercy , savant a luy ses merchandizes ; & un villein , savant a luy son gainage . continual claime . continual claime est , lou home ad droit de enter en certain terres dont un aut ' est seisie en fee , ou fee-taile , & il ne osast enter pur pavour de mort ou batterie , mes approche cy pres come il osast , & fait claime a ceo deins le an & jour devant le mort de cestuy que ad le terre ; si apres cestuy que ad le terre devie seisie , & son heire est eins per discent , uncore cestuy que fait tiel claime poit enter sur le heire , nient contristeant tiel discent , p̄ ceo q̄ il ad fait tiel continual claime . mes il covient que cest claime touts foits soit fait deins l' an & jour devant le mort le tenant ; car si tiel tenant ne morust seisie deins l' an & jour apres tiel ● claime fait , & uncore il que ad droit nosast enter , donques covient al cestuy que ad tiel droit de faire auter claime deins l' an & jour apres l'primer claim̄ , & apres tiel second claime , de faire le tierce claime deins l' an & jour , si il voit este sure de saver son entry . mes si le disseisor devie seisie deins l' an & jour apres le disseisin , & nul claime fait , donques le entrie le disseisee est tolle , car l' an & jour ne serra prise de le temps del title de entrie a luy accrue , mes solem̄t de le temps del darrain̄ claime ꝑ luy fait , come est avantdit . veies pluis de c'en littl. l. . c. . & veies le stat. h. . cap. . continuance . continuance en le common ley est de mesme signification ove prorogation en le civile ; come continuance jesq̄ le ꝓcheine , assise , f. n. b. . f. & . d. ē queux ambideux lieus il est dit , que si un record en le treasurie soit alledge ꝑ l'un party , & denie ꝑ lautēr , un certiorari serra sue al treasurer & le chamberleine de exchequer ; & sils ne certifie pas en le chancerie que tiel record est la , ou que est semblable destre en le tower , le roy mittera al justices , recitant le dit certificate , & commandant eux de continue ● le assise . en ceo signification est auxy use per kitchen . . & . auxy an. h. . cap. . contract . contract est ū bargain ou covenant perent ' deux parties , lou un chose est done pur auter , que est appel quid pro quo ; come si jeo vende mon chival pur argent , ou si jeo covenant de fair lease a vous de mon mannor de dale , en consideration de xx . l. q̄ vous dones a moy , ceux sont bone contracts , pur ceo q̄ il ad un chose pur auter . mes si un home fait ꝓmise a moy , q̄ jeo avera xx . s. & q̄ il voile este dettour a moy de ceo , & puis jeo demande xx . s. & il ne voyle a moy deliver ; uncore jeo navera jam̄es action pur recover cest xx . s. pur ceo que cest promise ne fuit contract , mes nudum pactum , & ex nudo pacto non oritur actio . mes si ascun chose fuit done pur le xx . s. mesque il fuit forsque al value ● un denier , donques il fuit bone contract . contra formam collationis . contra formam collationis est un brief q̄ gist lou home done terres en perpetual almoigne a ascun meason de religion , come a un abbe & la covent , ou auter soveraigne , ou al gardien ou master de ascun hospital & sont covent , de trover certain pover hime , & de faire aut ' divine service ; fils alien̄ les terres , donq̄s le donor ou ses heires averont le dit brief p̄ recover le terre . mes cest brief serra touts foits port vers le abbot ou sō successor , & nemy vers l'alience , com̄t que il soit tenant : mes en touts auters actions lou hōe demand franktenement , le brief serra port vers le tenant del terre . vide le stat. west . . cap. . contra formam feoffamenti . contra formam feoffamenti est un brief q̄ gist lou un hom̄ devant le statute de quia emptores terrarum , fait ed. . infeoffe aut ' ꝑ fait de faire certain service ; si le feoffor ou ses heires distrain luy de faire auter service que est comprise en le fait , donques le tenant avera cest br̄e , luy commandant que il ne distrain luy de fair̄ auter service que nest comprise deins le fait . mes cest brief ne gist pur le plaintiff que claim per purchase del primer feoffee , mes pur le heire al primer feoffee . contributione facienda . contributione facienda est un brief , & gist lou sont divers parceners , & celuy que ad le part del eigne fait tout le suit al seigniour , les auters doyent faire contribution a luy , & sils ne voylent , il avera vers eux le dit breve . en ascuns cases le heire avera contribution , & en auter nemy , mes serra solement charge : car si home soit seisie de troys acres de terre , & conust un recognizance ou statute , &c. & enfeoffe a. d'un acre , & b. 〈◊〉 un auter acre , & le tierce discend a son heire ; si execution soit sue solement vers le heire , il ne avera contribution vers purchasor , uncore il est charge come terre-tenant , & nemy come heire ; car le terre , & nemy luy mesm̄ , est lie . uncore si home soit seisie de deux acres , l'un de nature de borough-english , & lye luy mesm̄ come devant , & morust , ayant issue deux files , queux font partition ; en cest case , si l' un soit charge , el avera contribution ; car sicome un purchasor avera contribution vers auters , & vers le heire le conusee auxy ; issint un heire avera contribution vers auter heire , car ils sont in aequ ● li gradu . auxy si home soit issint lie , & puis son mort asc ' de son terre discend al heir del part le pere , & ascun al heire del part le mere , l'un solement ne serra charge , mes sil soit , il avera contribution . en dower , si le tenant vouch le heire en gard a troys several seigniors , chescun serra owelmēt charge . si deux , quat ' , ou plusors homes soyēt severalm̄t se ● sie ● terre , & ils touts joyn̄ ē un recognisance ; en cest case le conusee ne poit extend le terre del asc ' des conusors solement , mes touts doient owelment estre charge : car com̄t que le terre del conusor mesme poit este solement extend q̄nt divers hōes ont purchase ascun del terre subject al recognisance , pur ceo q̄ le purchasor est en auter degree ● ue le conusor mesme ; uncore un de les conusors ne serra solement charge , car il estoyt en owel degree ove les auters conusors . auxy le terrenant d'un debtor sur un extent avera contribution de l'heir del debtor , quel veies cro. eyer versus taunton . si judgment soit done vers deux disseisors en assise pur le terre & damages , & lun disseisor morust , l' execut ' ne serra agard vers le surviving disse●sor que fuit party al tort , mes cybien le heir come le disseisor serra owelment charge . mes auterment est en personal lien ; cōe si sont lie en ū obligat ' , la le charge survivera et ou est dit , que l' un purchasor avera contribution , nest per ceo entend , q̄ les auters doneront ou alloweront a luy ascun chose ꝑ voy de contribution ; mes doit estre entend , q̄ le ꝑtie q̄ est solem̄t extend ꝑ tout poit per audita querela , ou scire facias , come le case require , defeat le execution , & per ceo serra restore a touts les mesne ꝑfits , & chaser le conusee de suer execution de tout le terre : issint en cest manner chesc ' serr̄ contributorie , cestascavoire , le terre de chesc ' terre-tenant serra owelment extend . convocation . convocation est communement prise pur le assembly de clerks p̄ consult ' ● choses ecclesiastical ē tēps de parlem̄t : et sicōe la sont deux measons de parlement , issint la sont deux lieus appel measons de convocation l' ū appel le pluis alt meason ● cnvocation , ou les archiovesq̄s & evesques sedont , severalment per eux mesm̄s ; laut ' l'inferior meason de cōvocation , ou tout le residue des clerks sedot . v. prolocutor . conusance . conusance de plee est un priviledge que un citie ou ville ad per grant le roy , de ten̄ plee de touts contracts , & des terres deins le precinct del franchise , & q̄ quant ascū home est impleade p̄ asc̄ tiel chose en le court le roy al westmin ' , les maiors ou bayliffs de tiels franchises , ou lour attornies , poient demander conusance del plee , cestascovoir̄ , que le plee & le matter serra plead & determine devant eux . mes si le court al westminster soit loyalment seisie del plee devant que conusance soit demand , donques ils ne averont conusance pur cest suit , p̄ c̄ que ils ont neglige lour temps 〈◊〉 deman ● c̄ : mes cest ne serra barre al eux ● aver conusāce ē aut ' action ; car ils poyent demand conusance en un action , & omit ceo ē un auter , a lour pleasure . et notes , que conusance ne gist en prescription mes il covient monstre letters patents le roy pur ceo . coparceners . coparceners . veics parceners . copyhold . copyhold est un tenure pur quel le tenant ad riens a monstre forsq̄ les copies des rolles fait ꝑ le seneschal del court son sn̄r : car le seneschal , sicome il enroll ' touts aut's choses faits en le court le sn̄r , issint il auxy fait tiels tenants q̄ sont admitte ē le court a asc ' parcel de tr̄e ou tenements apperteynant al manor ; & le transcript 〈◊〉 c̄ est appel court-roll , le copie de q̄ le tenant prist de luy , & detinet cōe son sole evidēce . co. li. . fol. . cest tenure est appel base tenure , p̄ ceo q̄ tient al volunt le sn̄r . kitchen , fol. . fith. nat. brev. fol. b. c. que dit , q̄ fuit accustome destre appel tenure en villenage , & que cest copyhold nest forsque un novel nosme . uncore nest meerement al volunt le sn̄r , mes accordant al custome del manor ; issint q̄ si un copyholder ne pas infreint le custome del manor , & ꝑ se forfeit son tenure , ne semble tant destoyar al volunt son sn̄r pur son droit , cōe destre dislieu quant a luy pleist . les customes đ manors sont infinite variant en un point ou auter fere en chesc ' several manor . primerm̄t , ascun copyhold est fineable , & ascun certain . ceo q̄ est fineable le seign̄r assesse a quel fine q̄ il voyle , quant le tenant est a ceo admit : ceo q̄ est certain est un sort đ enheritance , & appel ē plusors lieus customary , p̄ c̄ q̄ le tenant morant , & le tenure esteant void , le ꝓchein du sangue , payāt le customary fine , ne polt estr̄ denie destre admit . secondm̄t , asc ' copyholders ont per custome les boys crescant sur lour t're demesn̄ , quel per le ley ils ne poyent aver . tiercement , la sont copy-holders que tient ꝑ le verge en ancient demesne , & nient obstant ils tient per copy , uncore ils sont en nature de franktenants ; car si tiel home fait felony , le roy ad an , jour , & vast , come en case de franktenemēt ascun aut's tient per common tenure , appell mere copyhold , & sils commit felony , lour terre jammes escheatera al sn̄r del manor . west . part . . l. . sect . . issint define un copyholder ; tenant per copy de court-roll est celuy q̄ est admit tenant đ ascun tr̄es ou tenements deins un manor , que temps ouster le memorie du home , ꝑ use & custom del dir manor , ont este dimisable as tiels q̄ p̄nderōt mesme ē fee , fee-taile , p̄ vie , ans , ou a volunt , accordant al custome del dit manor , per copy de court roll . coraage . coraage est un imposition nient ordinary , foundue sur asc ' nient usual chose & semble destre de certain measures de grain . ● ract . l. . c. . numb . . use ceux parols , corus tritici , destre ū measure ● graine ; & ē mesme le capit ' , num . . ad ceux parols : sunt enim quaedam communes praestationes , quae servitia non dicuntur , nec de consuetudine veniunt , nisi cum necessitas intervenerit , vel cum rex venerit : sicut sunt hidagia , coraagia , & caruagia , & alia plura de necessitate , & ex consensu communi totius ▪ regni introducta , & quae ad dominum feudi non pertinent ; & de quibus nullus tenetur tenent ' suum acquietare , nisi se ad hoc specialiter obligaverit in charta sua . cordwayner . cordiner vel cordwayner venust cel francois cordvannier , id est , sutor calcearius , a corti genere quod cordovan apud gallos nominat ● r. et est ū ꝑol mult use ē nostre statutes , cōe ē h . c. . & h. . c. . & jac c. . cornage . cornage est un sort de grand-serjeanty , le service ● quel tenure est , 〈◊〉 vētier ū cornu quāt asc ' invasion des enemies del pais artiq̄ est discrie . et 〈◊〉 c̄ plusors kōes tiendront lour t're ē les ꝑts septentrionals , environ le pariet cōmunem̄t appel l' pariet des picts . cam. bri. p. . veies littleton , fol. . ou dit , que en le marches de escoce asc ' teignont del roy ꝑ cornage , cestascovoir , per ventier ū cornu , pur garner homes 〈◊〉 pais quant ils oyent que enemies veignont ; quel service est grand serjeanty . corodie . corodie est un all ● wance de meat , pane , boyer , argent , vestments , lodging , & ● iels choses necessary pur sustenāce . ceo asc ' soits est certain , ou le certainty des choses limit ; asc ' foits uncertain , lou nest l ● mit certaintie que il aver . et asc ' de eux commence ● graunt fait ꝑ asc ' home al aut ' , & poet estre p̄ vie , ans , c taile ou fee : & asc̄ corodies sont de cōmon droit , sicome chesc̄ founder 〈◊〉 abbyes & aut's measons 〈◊〉 religion papistick avoyent authoritie ● assigner ē mesme les son pere , frere , cousin , ou aut ' q̄ il voit , sil fuit un meason de moignes ; & si il soit founder del meason de nuns , donques ceo p̄ sa mere , soer , ou aut ' mulier : & touts jours cest proviso fuit , q̄ il q̄ ad corodie ē un meason de moignes , ne duist mitter un feme de prender ceo , ne ou corodie fuit due en un nunnerie , la il ne fuit loyal 〈◊〉 appointer un home de receiver ceo ; car en ambideux cases tiel presentation fuit destre reject . et cest corodie fuit due cybien a un cōmon ꝑson founder , sicome ou le roy m̄ fuit founder . mes ou le meafon fuit tenus en frankalmoigne , la le tenure m̄ fuit un discharge 〈◊〉 corodie encounter touts homes , sinon q̄ il fuit ap̄s charge voluntarlm̄t ; cōe ou le roy voit mitter son br̄e al abbey p̄ un corodie p̄ un tiel , le que ils admit , la le meason doit este charge ꝑ ceo a touts jours , si le roy soit founder ou nemy . veies brief de corodio habendo en fitzh . nat. brev. fol. . coroners . coroner est un ancient officer de trust , & de grand authority , ordeine destre un principal cōservator ou gardian ● le peace , a port ' record des plees del corone , & del son view demesne , & de divers aut's choses , &c. et p̄ ceo en temps de ed. . fuit enact q̄ , pur ceo q̄ petit gentes meins sages soyent eslieus ore 〈◊〉 novei communem̄t al office del coroner , ou mestier serroit q̄ ꝑbes hōes , loyalx , & sages , se entermellant 〈◊〉 cel office ; purview est que ꝑ ● ou ts les counties soient eslieus sufficient hōes coroners , 〈◊〉 pluis loyalx & pluis sages chivalers , q̄ mieulx sachant , puissent & voilent a cel office entender , & q̄ loyalm̄t attachent & representent les plees del corone . et nient obstant le letter de cest statute ne soit p̄cisement observe , uncor ' al meins l' entent doit estre pursue cy pres come poit ; issint q̄ pur le default des chivalers & gentlehomes , furnished ove tiels qualities sicōe le statute parle , ( de que ils y ad divers ) auters poient este eslieu , ove cest addition , que ils soyent vertuous & bone christians . veies de ceo en le br̄e de coronatore eligendo , in fitzh . n. b. fol. . quant le coroner est d'enquirer del mort 〈◊〉 ascun person , ou faire aut ' chose concernant son office , il doit ceo faire en person : & sur le subit mort ' d' ascun , il mesme doit veyer le mort corps quāt il fait enquirie , ou auterment l' enquirie nest bone ; car sil voile enquirer 〈◊〉 ascun mort ꝑson sans luy veyer , cest sans authoritie , & issint void . et si le corps soit enterre devant son venu , il doit ceo recorder en ses rolles , al entent q̄ le ville ou l'enterrement fuist fait serra amerce pur ceo devant les justices en eyre , sur le view des rolles del coroner . et nient meins le coroner doit defover le corps hors ● l terre , & prendre l'enquirie sur view del corps , come il ferroit sil navoit este enterre : & la ville serra aux ' amerce , sils suffront luy giser sur la terre a putrefaction ou grand ordeur , sans mander al coroner . et si le coroner soit negligent en venir a faire son office , apres que les bayliffs , ou homes de pais ont mande p̄ luy , il serra punie . com̄t ꝑ le ley q̄ coroner ne puit enquirer 〈◊〉 asc ' felonie , forsq̄ de mort de home ; tamen ad este dit , que ē northumberland ils enquiront de touts felon̄ ; mes cel authoritie ils maintenont per prescription . si hōe foit occise ou merge ē les braches ou sauses del mere , lou home poit veier terre de un part & de auter , le coroner enquirera de ceo , & nemy l' admiral , pur ceo que le pais poit bien de ceo aver conusance . mes le coroner del hostel le roy ad un exempt jurisdiction deins le veirge , & le coroner del countie ne poit entermeddle deins c̄ ; sicome le coroner del hostel ne poit entermeddle deins le countie hors del vierge . si le demandant ou plaintiff soit non-sute , ou si judgem̄t soit done vers le tenant ou defendant , ou semblables , les justices ne unques assesseront asc̄ amerciamēt , mes le clerks des garrants fait estreats de eux , & deliver eux aux clerks de assise deins chesc ' circuit , a deliver eux al coroners en chesc̄ countie , ● afferer ou assesser l'amerciamēts , p̄ ceo q̄ ils sont pense pluis indifferent , entant q̄ ils sont elect ꝑ tout le countie . si un approver dit , que il commence son appeale devāt le coroner ꝑ dures , ceo serra trie ꝑ le coroner ; & si le coroner ceo denie , l'approver serra pendus . per queux cases il appiert , q̄ le ley done grand credance & authoritie al coroners . corporation . corporation est ū chose ꝑmanent , q̄ poit avera succession : et est un assembly & joyning ensemble 〈◊〉 divers en ū fellowship , fraternitie , & ment , de q̄ un est le teste & principal , les aut's sont le corps ; & cest teste & corps joynt ensemble font le corporation . et de corporations , asc̄ sont spirituals , ascuns temporals ; & 〈◊〉 spirituals , asc̄ fueront corporations de mort ꝑsons en ley , & ascuns auterment ; & asc̄ sont ꝑ authority del roy solement , ascuns ont este ● un mixt authoritie . et de ceux queux son tēporal , ascuns sont per authoritie de roy auxy , & ascuns per le common ley del royalm . corporation spiritual , & de mort persons en le ley , est lou le corporation consist ● ū abbe & covent , queux ont lour commencem̄t del roy , & le pape , quant il y ad a faire cy . corporation spiritual , & del able persons en ley , est , lou le corporation consist 〈◊〉 un dean & chapter , master del colledge ou hospital ; & cest corporation ad com̄encemēt de roy solement . corporation temporal per le roy est un mayor & com̄unaltie . corporation temporal ꝑ authoritie del common ley est le assembly en parliament , le quel consist del roy , le teste del corporation ; les seigniours spirituals & temporals , & les commons del royalm , le corps del corporation . corps politique . corps politique sont evesq̄s , abbes , priors , deans , parsons d'un esglise , & tiels semblables , queux ont succession en un ꝑson solem̄t . si terre soit done al maior & communaltie p̄ lour vies , ils ont estate ꝑ entendment nient determinable . issint est si feoffm̄t soit fait de terre al deane & chapter , sans parlance de successors . release d'un maior p̄ ascun summe de argent due al corporation en son nosme demesne nest bone en ley. en case de un sole corporation , ou corps politique come evesque , parson , vicar , master 〈◊〉 hospital , &c. nul chattel ou en action ou possession alera en succession , mes les executors ou administrators del evesq̄ , parson , &c. eux avera ; car succession ē corps politiq̄ est cōe enheritance en case d'un corps private . mes auterm̄t est en case ● un corporation aggregate de plusors , come deane & chapter , maior & com̄unaltie , & semblables ; car la ils ē judgment del ley ne unques deviont . uncor̄ le case del chāberlain ● londres differt 〈◊〉 touts ceux , & son successor poit ē sō nosme demesne aver execution ● un recognisance conust a son predecessor p̄ orphanage money : & le reason est , p̄ ceo q̄ ē cest case le corporarion del chamberlain est per custome , & m̄ le custom q̄ ad luy create , & fait ū corporation ē succession quāt al dit special purpose concernāt orphanage , ad enable le successor a p̄nder tiels recognisances , ob ● igations , &c. que sont faits a son predecessor . et tiel custome est foundue sur grand reason ; car les executors ou administrators del chamberlain ne doient ent'meddle ove tiels recognisances , obligations , &c. queux ꝑ le dit custome sont prise ē le corporate capacity del chamberlain , & nemy ē son private . mes evesque , parson , &c. ou asc ' sole corporation , q̄ sont corps politique ꝑ p̄scription ne poyent prender recognisance ou obligation , mes solem̄t a lour private , & nemy ē lour politique capacity ; car la fault custome a prender chattel en lour politique o ● corporate capacitie . corpus cum causa , vel habeas corpus . corpus cum causa est un brief issuant hors del chancery , a remover tant le corps q̄ le record del cause ● ascun home en execution sur judgement pur dett , en banque le roy , &c. cy remaner donque il ad satisfie le judgement . fitzh . nat. brev. fol. . e. ceo gist auxi a remover un accō hors des inferior courts de record en ascuns court del ley en westm . corruption de sanke . corruption de sanke est , quant asc ' est attaint de felony ou treason , donques son sanke est dit destr̄ corrupt ; ꝑ reason de quel ses enfants , ne asc ' 〈◊〉 son sanke , ne poient estre heires a luy , ne al ascun auter ancestor , pur ceo q̄ ils doyent claime per luy . et sil fuit noble ou gentlehome devant , il & touts ses enfants ꝑ ceo sont faits ignoble & ungentle , ayant regard al nobilitie ou gentrie ils claime ꝑ lour pere , q̄ ne poit este fait sane arere ꝑ grant le roy sans authoritie 〈◊〉 parliament . mes si le roy voile pardon l'offendor , il voile purger le corruption del sanke des tiels issues queux sont nee puis le pardon , & ils poyent inherit le terre de lour ancestor purchase al temps del pardon , ou apres ; mes issint ne poyent ils queux fueront nee devant le pardon . auxy il q̄ est attaint de treason ou felonie ne serra heir a son pere : mes cest disabilitie estoppera auters destre son heire , issint que durant son vie le terre potius eschetera al seigniour del fee , que discen ● al auter mes si il que est attaint morust sans issue de son corps , durant le vie son ancestor , donque son puisne frete , soer , ou cousin inheritera : car si leigne fits soit pendus , ou abjure le terre p̄ felonie , durant le vie le pere il nest impedim̄t mes que le puisn̄ fits puit inheriter . ed. . c. . et sil que est attaint de treason ou felonie en le vle de son ancestor , purchase le pardon le roy devant le mort son ancestor , uncore il ne serra heire al dit ancestor , mes la terre potius eschetera al seigniour del fee per le corruption del sanke , ass . placit . . mes si leigne fits soit clerk convict en le vie son pere , & puis son pere morust ; en cest case il inheritera la terre son pere , pur ceo que il ne fuit attaint de felonie ; car ꝑ le common ley il serroit inherit puis q̄ il ad fait son purgation . et jammes per le stat. de eliz. cap. . il serra subit enlarge puis le arser en le maiue , & deliver hors de prison , & nient commit al ordinary a fair son purgation ; mes il est en mesme plite come il ad fait son purgation . si home que ad terre en droit la feme ad issue , & son sank est corrupt per attainder de felony , & le roy luy pardon ; en cest case , si le feme morust devant luy , il ne serra tenant per le curtesie , pur le corruption del sank de cel issue . mes auterment est sil ad issue puis le pardon ; car donque il serra tenant , nient obstant que le issue que il avoit devant le pardon ne soit inheritable . h. . c. . si home seisie de terre ad issue deux fits , & leigne est attaint en le vie son pere de felonie , & pur ceo execute , ou auterment morust durant le vie de son pere , & puis le pere morust seisie ; le terre discendra al puisne fits , come heire a son pere , si leigne fits nad issue donques en vie . mes si le eigne fits , que fuit attaint , ad ascun issue en vie , que inheritera mes pur le attainder ; le terre escheatera al seigniour , & ne discendera al puisue frere , pur ceo que le sank del eigne frere est corrupt , h. . dy. . mes est destre observe , que la sont ascuns choses fair treason per act de parlement , de queux com̄t q̄ hōe soit attaint , uncore son sanke nest corrupt , & il forfeitera riens , forsque ceo que il ad pur son vie demesne : come si home soit attaint sur le stat. de eliz. cap. . ordeigne envers le maintenance del authoritie del evesque & see de rome , ceo ne extendera a faire ascun corruption de sanke , le disheritance dasc ' heire , forfeiture dasc ' dower , ne al ꝑjudice del droit ou title dasc ' ꝑson , aut ' q̄ le offendor durāt son natural vie solement . issint si home soit attaint per force del statute de el. ca. . ꝓvide encounter le clipping , washing , filing , & rounding de argent , uncore la nest ascun corruption de sanke . en m̄ le manner est del stat. de el. cap. . jac. cap. . mar. ca. . encounter illoyal assemblies ; & el. ca. . encounter le forger de faits ; & le stat. de eliz. cap. . encounter le embeasilling le ordnance . armour , & artillerie le roigne . corse present . corse present sont parols significant un mortuarie ; & le reason p̄ q̄ le mortuarie est issint appel est , pur ceo q̄ ou un mortuarie soloit destre due , le corps del mieux des avers fuit , solonque le ley ou custome , offer̄ ou present al priestre . veies an . . h. . c. . ou enter aut ' choses est enact , que nul mortuary ne corse present , ne ascun sum ● argent ou auter chose , pur ascun mortuarie ou corse present , serra demaund , receive , ou ad , mes solement en tiels lieus & villes ou mortuaries ont estre accustome desire prise & pay . cosinage . cosinage est un brief q̄ gist lou mon besayel , mon tresayel , ou aut ' cousin , devie seisie in fee-simple , & un estranger abata , cest adire , ent ' en les tr̄es ; donques jeo avera vers luy cest brief , ou envers son heire , ou son alienee , ou envers q̄cunque que aveign̄ apres a les dits t ● rres . mes si mon ayel devie seisie , & un estranger abate ; donques jeo avera un brief de ayel . mes si mon pere , mere , frere , soer , uncle , ou aunt , devie seisie , & un estranger abata ; donques jeo avera un assise de mortdancester . cottage . cottage ( cotagium ) est un petite meason pur le habitation des povers homes , sans asc ' terre a ceo apꝑteinant , dōt mētion est fait en le prim̄t stat. fait ē e. . et le inhabitant en tiel meason est appelle un cottager . mes ꝑ un stat. fait en le roigne eliz. ca. . nul hōe poit edifier tiel cottage pur habitation , sinon q̄ il fait giser a ceo quat ' acres de terre de franktenem̄t ; except ē cities & market-boroughs , ou deins un mille ● l mere , ou p̄ le habitation des laborers en mines , sailers , foresters , pastors , &c. coucher . coucher est un factor que remain en asc ' lieu ou pais p̄ chivisance . an. e. . c. . il est auxy use p̄ le common livre en que ascun corporat ' entrast lour particular faits pur un perpetual register de eux . covenable . covenable est un ꝑol francois q̄ signifie convenient ou suteable , come covenably endowed , an. . h. . c. . ceo est antiq̄mēt escri convenable , cōe ē le stat. ed. . st. . c. . covenant . covenant est un agreem̄t fait ꝑ fait en escript , & ensele ꝑenter ● eux persons , lou chesc ' de eux est tenus al auter de performes certaine covenants pur son part ; & si lun de eux ne tient passe son covenant , le auter ● aera ent un brief de covenant . et covenants sont ou en ley , ou en fait , cok. lib. . fol. . ou covenant expresse , & covenant en ley , cok. lib. . fol. . un covenant en ley est ceo q̄ le ley entend destre fait , nient contresteant que en parols ne soit expresse : cōe si home demise un chose al aut ' p̄ un certain t' me , le ley entende un covenant del ꝑt le lessor , que le lessee tiendra tout son terme enconter tout loyal encumbrance . covenant en fait est ceo que expressement est agree ꝑenter les parties . auxy la est covenāt meerm̄t ꝑsonal , & covenāt real . fitz. nat. brev. fol. . semble adire , que covenant real est , ꝑ q̄ hōe luy oblige de passer un chose real , come terres ou tenements ; sicome covenāt d' levier un fine de tr̄e , covenant meerment personal est , ou home covenant ove auter per fait , de edifier un meason , ou de server luy . veies le veil livre de entries , verbo covenant . mes nota bien , que nal br̄e de covenant serra mainteinable sans especialty , sinon en le city de londres , ou en ascun auter tiel liue privilege ꝑ custome & use . coverture . coverture est , quāt un home & un feme sont espouse ensēble ; ore asc ' chose que est fait concernount la feme en le temps de le continuance 〈◊〉 cest marriage , est dit destre fait durant le coverture , & le feme espouse est appel un feme covert , & ꝑ ceo disable ● contracter ove ascun , al ꝑjudice d ● sa mesm̄ ou sa baron , sans son consent ou privitie , al meins sans son allowance ou confirmation . veies brook cest title . et bracton dit , que touts choses q̄ sont la femes , sont le barons , nec ad la feme poyar de sa mesme , mes le baron , lib. . cap. . & que le baron est le teste sa feme , lib. . cap. . & arere , que en ascun chose legal el ne poit responder sans sa baron , lib. . tract . . cap. . et si le baron alien le terre fa feme durant le coverture , el ne poit ceo dedire ē le vie sa baron . covin . covin est un secret assent determine en le les coeurs de deux ou plusors , al prejudice dun auter : come si tenant p̄ terme de vie , ou tenant en le taile , secretm̄t conspire ove un auter , que lauter recovera vers le tenant pur vie le terre que il tient &c. en prejudice de celuy en le reversion . ou si executor ou administrator ꝑmit judgm̄ts ● estre enter envers luy ꝑ fraud & plead eux al obligation , ou si ascun fraudulent assignm̄t ou conveiance soit fait , la party greive poet plead covin & releive luy mesm̄ . see the stat. . r. . c. . h. . c. . . el. c. . & el. c. . count. count est tant come l'original declaratiō ē un proces , uncor̄ pluis toft use ē real q̄ ꝑsonal actiōs ; come declaratiō est pluis apply al ꝑsonal que real . f. n. b. . a . d. n. . a. . e. . a. libel ove les civilians comprehend ābidexu . et uncor̄ count & declaration sont asc ' foits confound ; cōe count en det , kit. . count ou declaration en appeal , pl. cor. . count en trespas , brit. c. . count ē action de trn̄s sur le case p̄ slander , kitch . . conteurs ad este prise pur tiels queux home receive de ꝑler p̄ luy en asc ' court , come advocates ; & pledeurs destr̄ un auter sort , come artornies pur un que est present en ꝑson , mes souffre un auter a dire pur luy . countours , ꝑ m. horne , sont tiels sergeāts erudite ē les leyes , que servont les laye gents de defender lour actions en judicature pur lour fee. countee . countee dicitur a comitando , quia comitantur regem ; & fuit le pluis eminēt & supreme dignitie del conquest , jesque le unzisme an del roy ed. . ou le black prince fuit create duke de cornwal : & ceux q̄ de anciēt temps fuerōt create coūtees , fueront de sanke-royal ; & jesque a cest jour le roy en touts ses appellations stile eux ꝑ le nosme charissimi consanguinei nostri . et p̄ ceux causes le ley dōe a eux haut & grād privileges ; & pur ceo lour corps ne serra arrest p̄ det , trn̄s , &c. p̄ ceo q̄ le ley entend q̄ ils assistont le roy ove lour counsell p̄ le weale publique , & gardont le royalm en safetie per lour prowesse & valour . auxy pur mesme le cause ils ne serr̄ mise en juries , coment q̄ ceo soit pur le service del pais . et si issue soit prise , si le plaintiff ou defendant soit un countee ou nemy , ceo ne serra trie ꝑ pais , mes ꝑ le brief le roy. auxy le defendant navera jour de grace vers le seigniour del parliament , pur ceo que il est intend 〈◊〉 attender le publique . et 〈◊〉 ancient temps le countee fuist praefectus , seu praepositus comitatus , & ad le charge & custodie del countie : & ore le viscount ad tout l'authoritie p̄ administration & execution de justice que le countee avoit , cok. lib. . fol. . & p̄ ceo est appelle viscount . countenance . countenance semble destre use pur credance ou esteeme . veil n. b. . in ceux ꝑols ; l' attaint serra grantus as povers hōes q̄ p̄ndront lour serem̄t que ils ont reins de q̄ ils poyent faire lour fine , ouster lour countenance . en mesm̄ le manner est use ed. . stat. . cap. . en ceux ꝑols ; visconts chargeront le dettors le roy ove tant q̄ ils poyēt levier ove lour serem̄ts , sans abatement del countenance des dettors . countermand . countermand est , quant chose execute per devant est apres per ascun act ou ceremony frustrate per le party que ad ceo primes fait . come si home ad fait son darreine volunt , per que il devise son terre al j. s. & puls il enfeoffe auter home 〈◊〉 mem̄ le terre ; ore ceo feoffm̄t est un countermand al volunt , & le volunt quant al dispositiō del terre est voide . si feme seisie de terre en fee fist sa volunt en escript , & per ceo devisa que si a. de b. luy survivera , donque el devise & bequeath a luy & a ses heires sa terre , & apres el entermarrie ove le dit a. de b. ore , pur prisel de luy a baron & coverture al temps de sa mort , le volunt est countermand . mes si un baroness widow retaine deux chapleins solonque le statute , & prist un de nobility a baron , & puis le baron mo rust , le reteiner de ceux deux chapleins remaine , & ils sans novel reteiner poient prender deux benefices ; car lour reteiner ne fuit determine ne countermand per tiel marriage . si feme fist lease a volunt , & puis prist baron , ceo marriage nest countermand al lease , sans expresse matter fait per le baron apres le marriage a determiner le volunt . auxy si lease soit fait al feme a volunt , & el prist baron , le lease continue nient obstant le marriage , & il nest countermand al ceo . counterplee . counterplee est , lou un port un action , & le tenant en son respons & plee vouch ou appel asc ' home pur garrant son title , ou prayer ayd de auter que ad melior estate come de cestuy en la reversion ; ou si un estrange al action vient & priera destre rescev ' de saver son estate ; si le demandant reply a ceo , & monstr̄ cause que il ne doit tiel home voucher , ou de tiel home aid aver , ou que tiel home ne doit este rescev ' cest plee est appel ū counterplee al voucher , ayde , ou resceit , come le case est . mes quant le voucher soit allow , & le vouchee vient eius & demande quel chose le tenant ad de luy voucher , & le tenant monstr̄ son cause , & le vouchee plede ascun matter de avoid le garrantie ; c̄ est appel counterplee del garrantie . countie . countie est tant en significat ' come shire , ambideux continent un circuit ou portion del royalm̄ , en q̄ tout le terre est apporc ' , p̄ le mieux governance de c̄ , & pluis facile administrat ' de just ' issint q̄ la nest ascun ꝑt ● l royalm q̄ ne pas gist deins asc ' county : & chesc ' county est governe ꝑ un annual officer , le quel nous appellomus vic' q̄ ent ' aut's duties apꝑteinant a son office , mit en execut ' touts les mandats & judgments des courts l' roy , q̄ux sōt destr̄ execute deins le circuit . fort. ca. . de ceux counties la sont . pluis observe q̄ auters , appel countie palatines ; come lancast . chester , durham , & ely , an . el. cap. . la fuit auxy le countie palat ' de hexam , an . h. . cap. . mes de ceo quaere . countie palat ' est jurisdiction de cy alt nature , q̄ ou touts plees touchāt le vie ou maihē dū hōe , appel plees ● l corone , sont usualment tenus & execute ē le nosm̄ le roy , & ne poit estre fait en le nosm̄ dascun aut ' ; le primer gardian de ceux , ꝑ especial charter del roy , en temps par devant mitteront hors touts briefs en lour nosm̄ demesne , & fairont touts choses touchant justice cy absolutement come le roy mesme en aut's counties , solem̄t conusant luy destre lour superiour & soveraigne mes ꝑ le statute de h. . cap. . cest poyar fuit mult abridge , le q̄l veies , & cro. jurisdict . . ouster ceux deux sorts de counties , la sont aux ' counties corporate , come appiert ꝑ le statute de ed. . . & ceux sont ascun cities ou veil burghs del terre , sur queux les roys de cest gent ● nt don tiel franchises extraordinaries ; come londres , eborum , chester , gloucester , & plusors auters . countie en un auter signification est use p̄ le countie court que le viscount tient chescun moys deins son libertie , ou per luy mesme ou ꝑ son deputie . veies p̄ ceo dalton's officium vicecom ' . de ceux counties ou shires la sont account destre en angleterre , ouster les en gales . court. court est diversm̄t prise : asc̄ foits p̄ le meason ou le roy est p̄sent ove son ordinary attendants ; & auxy le lieu ou justice est judicialment ministre , 〈◊〉 q̄ux vous poies trover several sorts en cromp. jurisd . bien describe . et de ceux le greinder sort sont courts de record ; ascuns ne sont , & p̄c̄ esteem base courts en respect des auters . ouster ceux auxy la sont courts christein , issint appel p̄ c̄ q̄ ils treat choses especialment apꝑteln̄t al christianisme , & tiels que sans boā science en theologie ne poiēt estre pas bien decide ; esieant tenus cydevant ꝑ archievesq̄ ; & evesq̄s , cōe ● l pape de rome ; mes ap̄s son ejectmēt ils tiendront eux ꝑ l' authoritie le roy , virtute magistratus sui , cōe l' admiral ● angleterre tient son court : sur q̄ ils ꝓceed , q̄ ils mittont hors lour citations en lour nosmes demesne , & nemy en le nosme le roy , come les just , des courts le roy font ; & p̄ c̄ com̄ l' appeal de ceux courts gisera al rome , jamm̄s per le stat. de h. . cap. . il gist al roy en son chancery . court-baron . court-baron est ū court q̄ chescun sn̄r dun man̄or ad deins son precincts demesn̄ . de c̄ court & court-leet kitch . ad escrie un livre plein̄ de bon erudition . cest court , cōe semble ē cok. l. . f. . est double : et p̄ c̄ si home ayant un man̄or en un vil ' granta le inheritance des touts les copyholds a ceo apꝑtenants a un aut ' , ceo grantee poit tener̄ un court p̄ le customary tenants , & accepter surrenders al use 〈◊〉 auters , & fair admittances & grants . l' auter court est del franktenants , q̄ est ꝓperm̄t appel le court-baron , en q̄ les suitors , cest adire , les franktenants , sont judges ; ou de aut ' court le sn̄r ou son seneschal est judge . coutheutlaugh . coutheutlaugh est celuy q̄ voluntarim̄t receive hōe utlage , & relieva ou cacha luy ; ē quel case il fuit ē veil tēps liable al m̄ le punishmēt que le hōe utlage m̄ fuit . br. l. . tra . . c. . n. . il est compose 〈◊〉 ● outh , i. conus & utlaw , utlage , come nous ● am̄es eux appellomus . cranage . cranage est un liberty p̄ user un crane p̄ le extrair̄ des wares ou biens hors dun niefe , bareau , ou nassele , al ascun creek ou wharf , & de fair̄ benefit de c̄ . est use auxy p̄ les deniers q̄ux sont prises p̄ ceo labor . creansor . creansor venust del francois cariance , id est , persuasio ; & signifie cestuy que confist auter ove ascun det , soit c̄ en deniers , wares , ou auters choses . ceo parol est use en le veil n. b. en le br̄e de audita querela , fol. . a. creek . creek est c̄ ꝑt dun havr̄● quel asc ' chose est discharge ou disburden hors del mere. et cest ꝑol est use en le stat. . an del roigne el. c. . & h. . cap. . &c. croft . croft est un petite clause ou p ● ghtle adjoynant al un mease , use ou p̄ pastur̄ ou arable , come c̄ pleist le owner . et semble destre derive del veux parol creaft , id est , handicraft , p̄ ceo que ceux terres sont p̄ le plus part manures ove le principal craft del owner . cucking-stool . cucking-stool est un engin̄ invent pur le punishment des scolds & inquiet femes ; & suit appel en ancient tēps un tumbrel , cōe appiert ꝑ lamb. en son eirenarch . l. . c. . et ꝑ les cases & judgement en eire , en le temps e. . pillory & tumbrel sont appendant al un leet , sans queux droit ne poit estr̄ sait as parties deins l' view . keloway fol. . b. et en le stat. h. . ca. . ceo est appel trebuchet . cui ante divortium . cui ante divortium est un br̄ que gist quant alienation est fait ꝑ le baron del terre la feme , & puis divorce est ew inter eux ; donques la feme avera cest brief , & le brief dirra , cui ipsa ante divortium contradicere non potuit . cui in vita . cui in vita est un br̄e que gist lou home est seisie ● terres en fee-simple , fee-taile , ou pur vie , en droit sa feme , & aliena mesme le terre & dev ● e ; donques el avera cest brief pur recoverer la terre . et nota , que en cest brief son title doir estre monstre , si soit de purchase , ou inheritance le feme . mes si le baron alien le droit sa feme , & le baron & la feme deviont , le heire la feme avera un brief de sur cui in vita . cuinage . cuinage . veies cuynage . cuntey . cuntey cuntey est un kind ● trial , come appiert ꝑ bract. en ceux parols ; negotium in hoc casu terminabitur per cuntey cuntey , sicut inter cohaeredes , l. . tr . . c. . et arer ē m̄ le lieu ; in brevi de recto negotium terminabitur per cuntey cuntey . et tiercem̄t , l. . tr . . c. . terminabitur negotium per breve de recto , ubi nec duellum , nec magna assisa , sed per cuntey cuntey omnino ; le quel semble destr̄ tant come per l' ordinary jury . curfew . curfew viēt des deux parols francois courir , cover , & feu , fire . est use ove nous p̄ un peale vespre , ꝑ q̄ le conqueror com̄and chesc ' home de prender garnie p̄ le coverture de son feu , & l' extinguishmēt de son lumen : issint que en plusors lieus a cest jour un campan̄ est usualment tinta prochein temps du lect , il est dit de ● inter curfew . curia avisare vult . curia avisarē vult est un deliberation q̄ le court entēd prēdre sur asc ' difficile point ● un cause , devant judgm̄t soit resolve . pur q̄l veies le novel livre de entries , verbo curia , &c. curia claudenda . est un breif ou action a compeller auter a fair un fence ou mure q̄ le def ' doit fair ent ' son terr' & la terr' del plaintiff . currieur ou courroieur . couroieur est un que dresse & liquor cuir , & est issint appel del francois parol cuir , id est , corium . cest ꝑol currier est frequent en touts les statutes faits p̄ le bon feasance de cuir , come en jac. cap. . &c. cursiter . cursiter est un officer ou clerk apperteynant al chancerie , que fait hors original briefs , & h. . cap. . sont appel clerks del course ē le serem̄t des clerks del chancerie , appoint an . ed. . stat. . la sont de ceux vint quat ' , q̄ ont allotta a chescun 〈◊〉 eux ascun counties , en le quel ils font hors tiel original breves que iont per le subject require , & sont un corporation in t ' eux mesmes . curtesie de angleterre . curtesie de angleterre est , lou home prent feme seisie ē fee-simple , ou fee-tail general , on seisie cōe heir de la taile special , & ad issue ꝑ la feme , male ou female ; soit issue mort ou ē vie , si la feme devie , le baron tiendra le tr̄e durāt sa vie , ꝑ la ley 〈◊〉 angleter ' et est appel tenant per le curtesied ' angleterre , p̄ c̄ q̄ est use ē nul auter royalme forsq̄ tātsolem̄t ē angleterre . si l ● enfant ne unques soit vise , donque la baron ne serra tenant per le curtesie ; mes si le issue soit nee en vie , ceo suffist . si la feme soit deliver 〈◊〉 un monster , que nad le shape de homes , ceo nest pas issue en ley ; mes coment le issue ad ascun deformitie ou defect en le maine ou pee , & uncore ad humane shape , ceo suffist de faire le baron tenant per le curtesie . et en ascun cases le temps del nestre est material , & en ascun nemy . pur ceo , si home prist feme enheretrix , q̄ est grandment enseint per luy , & le issue est rippe hors 〈◊〉 sa vēter en vie ; ore il ne serra tenant per le curtesie , car ceo doit commencer per le issue , & consummate per le mort la feme , & le estate de tenant per le curtesie covient a toller le immediate discent . mes si baron ad issue per sa feme , & puis tr̄e discend al feme , soit le issue donque mort ou en vie , il serra tenant per le curtesie ; car le temps del nestre del issue nest mat●rial si ceo soit en la vie sa seme . si terres sont dones al seme & al heires males de sa corps , & el prist baron , & ad issue file , & morust ; le baron ne serra tenant per le curtesie , car le issue ne poit ꝑ asc ' possibilitie enherit ' mesme les tenements . auxy come un feme alien , espousant ū subject ● roy , ne serra endowe ; en mesme le manner un home alien ne serra tenant per le curtesie . auxy si home seisie de tr̄e en droit sa feme soit attaint ● felony , ayant issue , & donque purchase le pardon le roy , & puis son seme morust ; la il ne serra tenant ꝑ le curtesie : mes sil ad issue per son feme nee puis le pardon , en tiel case il serra . curtilage . curtilage est un garden , yard , camp , ou piece de vacant tr̄e gisant ꝓchein & apperteināt al messuage , west . part . . sect . . et issint est use h. . c. . eliz. . coke l. . fol. . customary tenants . customary tenants sont tiel tenants que tient de la custome del man̄or , cōe lieur special evidence . custome . custome poit este define deē un ley ' ou droit nient escrie , q̄ esteant estable ꝑ veil use , & le consent de nostre ancestors , ad este & jourem̄t mise en ure . custome est ou general ou particular . general est ceo q̄ est approve ꝑ tout angleterre , de queux vous poyes lier ē doctor & student , l. . c. . plusors fort digne destre conus . particular est c̄ q̄ apꝑtient a ceo ou tiel countie , cōe gavelkind al kent ; ou a c̄ ou tiel sn̄rie , citie , ou ville . custome differt del prescription , p̄ ceo q̄ custome est cōmon a plusors , & prescription , ꝑ l' opinion 〈◊〉 ascun , est particular a celou tiel home auxy prescription poit estre p̄ un pluis curt temps q̄ custome , sc . pur cinque ans ou meins . come si fine soit duement levie 〈◊〉 tr̄es ou tenements , & ne soit dedit deins cinque ans , c̄ est barr̄ a chesc̄ claime a touts jours . si home omitra son continual claime pur un an & jour , donque le tenant en possession prescribe ū priviledge envers l' entrie le demandant & son heire , fitzh . nat. brev. . hors de nostre statutes vous poyes aver pluis grand diversitie : issint que ceo semble destre un voyer dit , que prescription est un exceptiō foundue sur tant temps ale & passe que le ley limita p̄ le pursuance 〈◊〉 ascun actlon . un example poit este prise hors del statute 〈◊〉 h. . c. . que enact , que ē touts actlons populars informatiō serra fait deins trois ans puls l' offence commi , auterm̄t destre de nul vigour . custome est auxy use p̄ le tribute ou toll que merchants payont al roy de porter eins & hors merchandizes , e. . stat. . c. . en quel significatiō est appel custuma en latine , reg. orig. . a. . a. et de ● erm̄t , p̄ tiels services que tenants de un manor doiont a lour sn̄r . veiel livre ● entries , verb ' custome . veies consuetud . & servitiis . custos brevium . custos brevium est le primer clerk apperteinant al court 〈◊〉 com̄on pleas ; ou bank le roy , l' office de quel est de receive & tener touts les briefs & mitter eux sur files , chescun return ꝑ luy mesme , & al fine 〈◊〉 chesc̄ terme 〈◊〉 receiver del prothonotaries touts les records de nisiprius , appel le postea . le custos brevium aux ' fait entrie des br̄es ● covenant , & le concord sur chesc ' fine , & fait hors exemplifications & transcripts de touts les br̄es & records en son office , & de touts les fines levie . les fines , puis q̄ ils sont engrosse , les parts de ceo sont divide ꝑent ' le custos brevium & le chirographer : ● q̄ le chirographer reteigna touts foits le brief de covenant & le note ; le custos brevium , reteina le cōcord , & pee del fine , sur quel pee le chirograph ' causa le proclamations destre indorse quāt ils touts sont ꝑclaime . custos rotulorum . custos rotulorum est celuy q̄ ad le custody ● s rolls ou records des sessions del peace , & , cōe ascuns semble , del commission del peace mesme , lam. l. . c. . p. . il est touts foits justice del peace & quorum en le countie ou il ad son office ; & ꝑ son office il est piuistoft appel un officer ou minister , que un judge , pur ceo que le commission del peace impose ceo especial charge per expresse parols sur luy , quod ad dies & loca predicta brevia , praecepta , processus & indictamenta praedicta coram te & dictis sociis tuis venire facias . custos des spiritualities . custos des spiritualties est celuy q̄ exercisa le spiritual & ecclesiastical jurisdiction ● ascun diocesse durant le vacancie del see ; l'appointment de quel per le ley canon appertein̄ al dean & chapiter , ne sede vacante aliquid innovetur . mes en angleterre l' archievesque del province ad ceo per prescription . uncore plusors deanes & chapiters ( come dit m. gwyn en le preface a son lectures ) demande ceo ꝑ veils charters des roys de cest terre . cuynage . cuynage est un parol use ē le statute h. . c. . p̄ le framer 〈◊〉 estaigne en tiel forme come solont 〈◊〉 ceo framer , p̄ le pluis apt portage de ceo en auters lieus . d. dammage . dammage est un part ꝑ ceo q̄ les jurors sont đ enquir̄ , donant lour verdict , p̄ le plaintiff ou demandant en ū action real ou ꝑsonal . car puis le verdict done sur le principal cause , ils sont auxy demaund lour consciences touchant costs , queux sont les expences del suit , & dammages , que cōtein le parde q̄ le plaintiff ou demandant ad susteine per cause del tort a luy fait ꝑ le defendant ou tenant . et entāt q̄ justice & reason vollont , q̄ quant le vie , le credit , les tres , les beins , le eorruption de son sanke , & tout ceo q̄ home ad a forfeit ' ē cest monde , sont mise ē peril sans voyer cause , mes solem̄t sur le malicious accusation dun aut ' ꝑ appeal , q̄ l'appellee averoit satisfaction p̄ ceo envers son faux accuser , & sil nad sufficient , donque vers luy ou ceux que luy abbetta ou procura de pursuer le appeale : pur ceo le common ley donast dam̄ages al defendant en un appeal , & assigne a luy un meane pur le recoverie de eux , quant il fuist acquite del felony , cōe est edw. . mes entant que les dam̄ages vers le procurors & abbettors fueront destre recover per original brief , cestascavoir , ꝑ brief de conspiracy , & nient auterment , que ne fuist cy curt remedie come le heinous degree del tort require , le statute de westminster le . an. . ed. . cap. . pur le pluis subite redresse fuit ordaine . mes si le defendant barre le plaintiffe de son appeale , donque il ne poit recover dam̄ages ꝑ le dit stat. envers le plaintiff , forsque le barre soit tiel q̄ acquite le defend ' ● l felonie . et si le defendant plead que le appellant est ou bastard , ou ad un eigne frere , ou tiels pleas en barre , & per eux barre le plaintiff ; uncore il ne recovera dammages vers luy , pur ceo que le defendant poit estre endite arere de mesme le felonie , & attaint , nient obstant ascun de ceux pleas ; car per eux le innocencie del defendant nest pas trie , & pur ceo il navera dam̄age . ass . pla . . mesme le ley est , si le defendant barre le appellant ꝑ demurrer en ley : et issint est , si en appeal del mort dū home le defendant plead al issue , & est trove ꝑ verdict que il occide le hōe en sō defence demesne , ou per misadventure ; en ceux cases il ne recovera dam̄ages . mes si le defendant en appeale ad le release del appellant , ou le pardon le roy , & voile eux waiver , & pled ' nient culpable , & est acquite ; en cest case il recovera dam̄ages . cest parol damna est prise en la ley en deux several significations ; l'un properm̄t & generalment , l' auter relative & stricte . properment , come est en cases ou dam̄ages sont foundue sur le stat. de h. . cap. . & h. . c. . ou costs sont enclude deins cest parol dam̄ages ; car damnum en son proper & general signification dicitur a demendo , cum diminutione res deterior fit : & en cest sense costs de suit sont dammages al plaintiff , car per eux res sua diminuit ' . mes quant le plaintiff monstr̄ le tort fait a luy a dammage de tiel summe , ceo est destre prise relative pur le tort que est passe devant le brief port , & sont assesse occasione transgressionis praedict & ne poit extender al costs del suit que sont future , & d' un auter nature . veies co. l. . f. , . dammage fesant . dammage fesant est , quant les beasts de un estrang ' sont en auters ter̄s , sans licēce del ten̄t d' la tr̄e , & la mangeront , trea ● ou auterment spoilont les blees , grasse , bois , ou tiels semblables : en quel case le tenant que ils issint dammage poit pur ceo prender , distrain̄ & impound eux , cybien en le nuict come en le jour . mes en auters cases , come pur rent & services , & tiels sembles , nul poit distrainer en le nuict . danegeld . danegeld est quiet ' esse de quodam tributo q ● quidē dani levaverūt in anglia : auxy le tribute mesme . ceo com̄ence primerment en tēps le roy etheldred , q̄l esteant en grand distress per le continual invasion de les danes , p̄ purchaser paix , fuit compell ' 〈◊〉 charge son pais & people ove grand payments ; car il primerm̄t done eux al cinque several paim̄ts . li. & puis grant al eux li. annualment . darreine presentment . darreine presentment , assise de ceo gist ou jeo ou mon ancestors ad p̄sent un clerk al un esglise , & puis , le esglise esteant voyde ꝑ le mort del dit clerke , ou auterment , un estranger present son clerke al mesme esglise en disturbance de moy . et coment ceo est auterment use , veies bract. lib. . tract . . regist . orig . fol. . si baron & feme present al advowson en droit la feme , que est appendant al man̄or la feme , & puis le baron alien un acre , parcel de man̄or , ove le advowson en fee , a un estranger , & devie , & puis le estranger presenta , & puis alien le acre a un auter en fee , savant le advowson a luy mesme , & puis le esglise voida ; ore la feme presentera , & s'el soit disturbe , el avera assise de darreine presentment ; p̄ ceo que le advowson suit sever del acre . mes si le advowson fuit appendant . al acre , donque covient al fem̄ a recover le acre avant que el presentera al advowson . f. n. b. . darreine continuance . est quant defendant ou tenant pendant le suit plead novel matter fait post ultimam continuationem placiti . v. thelwel . . & . cr. dean & chapter . dean & chapter est un corps corpor̄ spiritual , cōsistāt 〈◊〉 plusors able ꝑsons , come nosmem̄t de deane ( q̄ est principal ) & ses prebends , & ils ensemble font le corporation . et sicome cest corporation poyēt joyntment purchase terres & tenements al use de lour esglise & successors ; issint auxy chescun de eux severalment poit purchase al use de luy & ses heires . et sicome la sont deux foundations ● esglises cathedral ē angleterre , le veiel & l'novel , ( l'novel sōt ceux queux le roy henry le huict , sur suppression 〈◊〉 abbies , transform̄ de abbot , ou prior & covent , al dean̄ & chapter : ) issint la sont deux means del creation de ceux deanes : car ceux del veiel foundation sont conferr̄ a lour dignity semble al evesques ; le roy primerment mittant hors son conge desltire al chapter , le chapter donque esliant , le roy rendāt son royal assent , & l'evesque luy confirmant , & donāt son mandate de luy installer . ceux del novel foūdatiō sōt ꝑ un voy pluis curt enstall ' ꝑ les letters pat ' del roy , sans aut ' electiō ou confirmatiō . cest parol est auxy apply aux divers q̄ sont les prim̄s de certain peculiar esglises ou chappels ; come le dean del chappel del roy , le dean del arches , le dean del chappel de s. george en windsor , &c. debet & solet , vide custom & prescription . debet & solet sont parols use en le veiel natura brevium , fol. . le brief de secta molendini , esteant en le debet & solet , est un br̄e de droit , &c. et arrere , fol. . un brief de quod permittat poit estr̄ plead en le county devant le visc ' , & poit ēe en le debet & solet , ou le debet solement , come le demandāt claim̄ . pur q̄ nota , que ceux br̄es q̄ sōt port ē tiel sort ont ceux ꝑolx ē eux , cōe formal parolx nient destre omit . et accordant al div ● rsity del case ▪ le debet & solet sont use , ou le debet tentum . cōe si hōe ꝑ br̄e sue de recover̄ asc ' droit de que son ancestor suist disꝑeꝑse 〈◊〉 le tenant ou son ancestor ; donque il use solement le parol debet en son br̄e , & nest apt de user solet , p̄ ceo q̄ son ancestor fuist disseise , & l' usage discontinue : mes sil sue p̄ asc ' chose que est primerment denie a luy , donque il ad ambideux ceux parols , debet & solet ; p̄ ceo que ses ancestors devant luy & luy mesme ont usualm̄t enjoy le chose p̄ q̄ il suist , cōe suit al molin , ou com̄on de pasture , jesque cest p̄sent refusal del tenant . reg. orig . fol. . a. debet & detinet . debet & detinet : mult poit estre dit 〈◊〉 ceux parols que ad estre dit des ꝑols ꝓchein adevant . come , si home soit oblige a un auter , & fait son executor , & morust , & l'argent fuist due ē le temps del testator , & apres l'executor ceo ne renda pas ; la l' action port vers luy pur ceo serra ē le detinet tantū : & issint en touts actions port ꝑ exec ● tors come executors , le br̄e serra ē le detinet tantum , com̄t̄ q̄ le dutie acrue en lour temps demesne , p̄ c̄ que le chose ou dammages recover serra assets . mes si lessee pur ans rendant rent fait ses executors , & morust , & le rent incurre puis le mort del testator ; ore action 〈◊〉 debt serra port en le debet & detinet : car quant executor ou administrator prist les profits , rien serra assets mes les profits ouster le rent . come si le terre vault dixe livers per an , & cinqúe livers est reserve ; en cest case rien serra assets forsque le cinque livers ouster le rent , & pur ceo le br̄e serra pur le rent en le debet & detinet . coke lib. . fol. . decem tales . decem tales . veies tales . decies tantum . decies tantum est un brief q̄ gist lou ū juror ē asc ' enquest prist argēt 〈◊〉 un ꝑtie cu 〈◊〉 aut ' , p̄ done son verdict ' donques il payera dixe foits a tant ' q̄ il ad receive : & chescun que voile suer poit aver l'action , & avera l'un moietie , & le roy l'auter . mes si le roy en tiel case release ꝑ son pardon a tiel juror , uncore ceo ne serra barre ves cestuy que port l'action q̄ recover l'aut ' moietie , si non action soit cōmēce devant le pardon le roy : mes si le pardon soit devant asc ' action , il est barre encounter touts gents . et mesme le ley est 〈◊〉 touts actions populars , lou un part est al roy , l'auter al partie q̄ suera . auxy les embracers , que ꝑcuront tiels enquests , serront punie en mesme le man̄er , & ils averont imprisonment ● un an . mes nul justice enquirera de ceo de office , mes solement al suit del partie . deciners . deciners sont tiels queux soloyent d'aver le survey & check de dixe friburgs , p̄ le maintenance del peace le roy ; & les limits ou circuit de lour jurisdiction fuit appel decenna . bract. l. . tract . . c. . aux'poyes lier flet. l. . c. . & reg. orig . fol. . b. ceux semble d'aver grand authoritie en le temps des saxons , p̄ndant conusance de causes deins lour circuit , & reformant torts per voy de judgem̄r , cōe poyes lier ē les leyes del roy edw. publie ꝑ lambert , num . . auxy la est mention fait de ceux en britton , b. . q̄ dit ē le ꝑson le roy ( come il escria tout son livre ) en tiel manner : nous voillomus q̄ touts tiels que sont ans d'age fairont serem̄t q̄ ils serront sufficient & loyal a nous , & q̄ ils ne voilent estr̄ larons , ne assentant a larons , & q̄ touts soyent ꝓfesse destr̄ de c̄ ou tiel dozeine , & fair ou offer bail de lour behaviour per ceux ou cels deciners ; exceptant religious persons , clerks , chivalers , & lour eigne fits , & femes . uncore mesme le author ē sō . chap. ꝓchein al fine dit , que touts al age ● ans & desuis sont punishable p̄ nient vener al tourn de visc ' , exceptant countees , prelates , barons , religious ꝑsons , & femes . mesme le ley est ou les deciners font presentment , que un laron est prise pur larcinie , & deliver al visc ' . et kitchen hors del regist . & britton issint dit , religious persons , clerks , chivalers , ou femes ne serront deciners , fol. . hors de quel poit estre collct , q̄ cest ꝑol riens auterm̄t implie mes tiel q̄ ꝑ son serem̄t de loyaltie a son prince est settle ē le fraternitie ou society dun dozeine , car nest usual a cest jour ● trover suretie issint a fair̄ . et jam̄es un dozeine semble ● exten ● cy tant cōe le leet extenda , p̄ ceo q̄ ē leets solem̄t cest serm̄t est administer ꝑ le seneschal , & prise ꝑ tiels q̄ sont ● age 〈◊〉 ans & desuis resident deins le compass del leet ou ils sont jurus . fitzh . nat. brev. . a. les particulars de cest serement poyes lier ē bract. l. . tract . . c. . num . ou il mitta eins quindixe ans pour l' age de ceux q̄ sont jurus al peace le roy ; mes l. . tract . . c. . num . il nosme douze ans . vles inlaugh . hors de queux premisses poit estre observe le diversity ꝑenter l'ancient & ceux de nr̄e temps ē cest point 〈◊〉 ley & government , cybien p̄ le age 〈◊〉 ceux q̄ sont destre jure , cōe aux ' q̄ deciner nest james use pur le primer home ● un dozeine , mes pur luy que est jure al peace le roy ; & denierment , q̄ jammes la ne sont asc ' dozeines , forsque leets ; & q̄ nul home communem̄t done aut ' securitie p̄ gar ● le peace le roy mes son serem̄t demesne , & que pur c̄ nul respondera pur l'offence ● un auter , mes chescun pur luy mesme . declaration . declaration est un monstrance en escript de le grief & complaint de le demandāt ou plaintif envers le tenant ou defendant , en q̄ il suppose 〈◊〉 aver receive tort . et cest declaration doit estre plain & certain , pur ceo q̄ il impeach le defendant , & auxy chose celuy a responder . mes nota , que tiel declaration fait ꝑ le demandant vers le tenant en action real est ꝓperm̄t appel un count. nota. que le count ou declaration doit conteine demonstration , declaration , & conclusion . et en demonstration sont conteynes troys choses , ( cest adire ) que se pleynte , envers que , & de quel chose . et en le declaration doit estre comprise , coment & en quel manner le cause del action surdit enter les parties , & quant , & quel jour , an , & lieu , & a que l'action serra done . et en perclose il doit averre & profer de prover son suit , & monstr̄ les dammages queux il susteine per le tort a luy fait . de deoneranda pro rata portionis . de deoneranda , &c. est un brief q̄ gist lou ū est distrein p̄ rent , doit estre paia ꝑ auters proportionablement ove luy . fitzh . nat. brev. fol. . dedimus potestatem dedimus potestatem est un br̄e quel gist lou un hōe sua en le court le roy , ou est sue , & ne puit bien traveiler , donques il avera cest br̄e direct a ascun justice , ou aut ' discreet ꝑson en le pays , de doner a luy power pur admitte ascun p̄ son atturny , ou ● levie fine , ou de prender son confession , ou son respons , ou auter examination , cōe le matter require . defaut . defaut est un offence en omitting ceo que doit estre fair ; & pluis com̄unement pris p̄ non-apparence en court a jour assigne . br. lib. . tract . . & fleta lib. . cap. . defamation . defamation est quant home ꝑle scandalous ꝑols de asc ' auter hōe , court de justice , magistracie , ou title ● t're : p̄ quel le partie serra punie accordant al nature & qualitie 〈◊〉 son offence ; ascun foits per action sur le case pur slander , al commō ley , & auter foits en le court christian . come si home contrive ascun faux novels , & horribles & faux messoinges de prelates , dukes , counts , &c. donq̄ un action de scandalis magnatum gisera vers luy per le statute ● r. . cap. . & ceo esteant ꝑve , le partie offendant serra grievousment punie . mes p̄ parols de defamation vers un private home , la le partie grieve avera son action sur le case pur le slander , & recovera en dammages accordant al qualitie del peche ; en que le qualitie del person que est issint defam̄ est destre fort considre . mes pur defamations determinable en le court christian , ils coviēt de aver trois incidēts : prim̄mēt , coviēt concern̄ matt ' meerm̄t spiritual , & determinable ē le ecclesiastical court ; come p̄ appell ' luy heritique schismatique advouterer , fornicator , &c. secundem̄t , q̄ il concern̄ matt ' meerm̄t spiritual solement : car si tiel defamation concern̄ ascun chose determinable al common ley , le ecclesiastical judge navera conusans de ceo : come si un divin̄ est destre present a un benefice , & un ( a defeater luy de ceo ) dit al patron , que il est un heritique , ou un bastard , ou que il est excommenge , per q̄ le patron refuse a presenter luy , & il parde son preferment ; il avera action sur le case pur ceux defamations , tendant tiel fine . auxy si feme soit oblige que el vivera continēt , ou si lease soit fait a luy quamdiu casta vixerit ; en ceux cases incōtinēcie serr̄ trye ꝑ le com̄on ley. tiercem̄t , com̄t q̄ tiel defamation soit meerment & solement spiritual , uncore cestuy que est defame ne poit suer la pur amends ou dammages , mes le suit covient estre solement pur punishment del peche , pro falute animae cestuy que issint offend . et quant al slander de un title al terre , fi a. dit q̄ b. ad droit en les terres de c. per que c. est damnifie , donque il poit aver action sur le case , p̄ le defamatiō de son title , vers a. et nient obstant q̄ b ad un colourable title , uncore a. serra punie , entant q̄ il ad imprise sur luy notice del ley , & intromit en un matr̄ q̄ ne luy pas concerna . mes si home dit , q̄ il mesme ad droit al terre de un auter ; en cest case nul action p̄ defamation gist , nient obstant que il conust que son title est faux , coke lib. . fol. . defeisance . defeisance est un condition q̄ relate a un fair , come a un obligation , recognisance , ou statute , q̄ esteāt ꝑform ꝑ le obligor ou recognisor , le act est disable & fait voide , sicōe sil ne unques pas ad este fait . et la est nul garranty , recognisance , rent-charge , annuity , covenant , lease p̄ ans , use al common ley , ou tiels semblables , mes q̄ ils poyent ꝑ ū defesance , fait ove le mutual consent de touts ceux q̄ sueront ꝑties a le creation de eux , ꝑ fait estre adnul , discharge , & defeat . et le differēce ꝑent ' ū proviso ou cōdition en fait & un defeasance est ē c̄ , que le proviso ou condition est annexe ou ensert ē le fait ou grant ; ou un defeasance est usualment un fait ꝑ luy m̄ conclude & agree ꝑent ' les ꝑties , & ayant relation a un auter fait . et pur ceo si le condition de un obligation soit repugnant al fait , l' condition est void , & l' obligation bone : come si le condition soit , que il ne suera obligation , c̄ est void , auxy bien come est 〈◊〉 un feoffment , sur condition que le feoffee ne prendra my les profits . mes un defeasance est un grant q̄ est fait apres le obligation , pur defeat ' m̄ le obligation ; & c̄ est bon̄ , com̄t que il soit repugnant , & issint nient semble a un cōdition , h. . f. . b. pur le forme & man̄er de defeasances accordant al diversitie ● l case veies west . part . . symb. lib. . sect . , , &c. defence . defence est ceo que le defendāt doit fair immediatemēt apres le count ou declaration fait , cest adire , que il defenda tout le tort , force & dammage , lou & quant il devera ; & donques de proceed ouster a son plee , ou de imparler . et nota , que entant que il defend tort & force , il se excuse del tort vers luy surmise , & fait se partie al plee ; & per tant que il defend les dammages , il affirme le plaintiff able destre respondue . et pur le residue del defence , il accept le power del court de oyer & determiner les plees de cel matter . car sil voil pleader al jurisdiction , il doit omitter en son defence les parols ( ou & quant il devera . ) & sil voil ' monstre asc ' disabilitie en le plaintiff , & demand judgment si le partie serra respondue ; donques il doit omitter le defence del dammage . defendant . defendant est celuy que est sue en action personel q̄ est appel tenant en un action real . defendemus . defendemus est un usual parol en un feoffment ou donation , & ad cest force , q̄ il lia le donor & ses heires a defender le donee , si ascun hōe endeavor de imposer asc ' servitude sur le chose done , auter que est contein en le donation . bract. lib. . cap. . nu . . veies auxy warrantizabimus . defensor fidei . defendeur de la foy est un peculiar title don a roy 〈◊〉 angeleterre ꝑ le pape , come catholicus a roy 〈◊〉 espaigne , & christianissimus a roy 〈◊〉 france . il fuit primermēt don ꝑ leo x. a roy h. p̄ escrivā vers mart. luther , en part del esglise de rome . stow's annals , p. . deforsour . deforsour est celuy que prevail & ject hors ove force ; que differt ● un disseisor , primerment en c̄ , que hom̄ poit disseise un aut ' sās force , quel act est appel simple desseisin , brit. cap. . donque pur ceo q̄ hom̄ poit deforce un auter q̄ ne unques fuit en possession ; come si plusors ont droit al terres come common heirs , & un tient eux hors , le ley dit , q̄ il eux deforce , nient obstant q̄ il ne eux disseisa pas . veiel n. b. fol. . si tenant en taile fait feoffment en fee , ꝑ que le feoffee est eins , & puis le tenant en taile morust , & son issue suist br̄e de formedon envers le feoffee ; le br̄e dirr̄ , & auxy le coū● , &c. que le feoffee a tort luy deforce , &c. com̄t q̄ il ne luy disseisa , pur ceo que il ent ' en le vie le tenant en tail , & le heire ad nul present droi● . littl●ton f. . et un deforsor differt de un intrudor , p̄ ceo que un deforsor tient hors le droit heire , come avantdit : & home est fait un intrudor ꝑ son tortious entrie solement en terres ou tenements voide de un possessor , bract. lib. . c. . et pur ceo que force & forcible entrie en terres est cy opposite al peace & justice del royalm̄ , & ū dishonour del roy & son corone , & le scandal de ley , que ascun pers●n p●r nestre & serement oblige al ob●dience del roy & ses leyes , presumera de son authoritie per force & fort main̄ đ resister eux a noideux , per violent intrusion enl le possession đ un auter devant le ley ad deciđ son title ea ceo ; p̄ ceo divers statutes on este faits p̄ le restraint & reformation de ceux abuses ; come , ent ' auters , le stat. de r. . cap. . ou le roy defend asc̄ entrie en terres ou tenements ; mes en case ou entrie est done ꝓ le ley , & donq̄ nemy ove fort main̄ , ou ove multitude de gents , mes solem̄t en un peaceable manner ▪ veies plus de ceo 〈◊〉 p●ul . de pac . reg. f. . . &c. degrading . degrading . veis disgrading . delegates . sont com̄issioners appoint ꝑ letters pat ' a determiner appeal sur choses testamentary ou matrimonial , en q̄ sentence fuit rendue . demaines . demaines ou demesnes , generalment a parler , sont touts les parts de asc ' man̄ q̄l ne sont en mains del freeholders , com̄t soyent occupie ꝑ tenant copie 〈◊〉 court rol ' , lessees pur ans ou p̄ vie , cybien com̄ ten̄ts a volūt . et le reason que copihold est accoūt demesns est , p̄ ceo que ils q̄ sont ten̄ts a ceo sont adjudge en ley ● aver nul auter estate forsque al volūt del sn̄r , issint que il est jamm̄s repute destre ē ū manner ē les mains le sn̄r : uncore en comm̄ ꝑlāce il est usualm̄t appell demesnes que nest ou free ou copie . et cest parol demesne est asc ' soits use ē un pluis special signification , & est opposite al frank-fee ; sicome ceux terres q̄ux fueront en l'possessiō de ed. le confessor sont appel antient demesne , & touts auters sont appel frank-fee , kitch . fol. . & les tenants q̄ tient asc ' 〈◊〉 ceux terres sont appel tenants en ancient demesne , les auters tenants en frank-fee . et nul com̄on ꝑson ad asc ' demesnes en le simple prisance del ꝑol , p̄ ceo que la nest asc̄ terre mes depend mediatem̄t ou immediatem̄t del corone , ceo est , de asc̄ honor ou auter appertiēt al corone ; & nemy grant en fee al asc ' inferior ꝑson ; & p̄ c̄ quant un hōe en pledant voile enferre son terre destre son demesne , il dit , que il est ou fuit seise de ceo ē son demesne cōe de fee , littleton , fol. . ꝑ que appiert , q̄ nient obstāt son terre soit a luy & ses heirs a touts jours , uncore il nest voyer demesne , mes dependant sur un seignior paramount , & tiendrant ꝑ service , ou rent en lieu de service , ou ꝑ service & rent ensemble . demaines , solonq̄ le common ꝑlance , sont solem̄t entend le principal man̄or-place del seignior , q̄ il & ses ancestors ontewe de temps hors de memorie en lour maines demesne , ove touts edifices & measōs , prees , pastures , boys , terres eyrable , & tiels semblables ove ceo occupie . demand . demand est vocabulum artis , & si un release a ū auter touts demands , ceo est ( sicome littl. fol. . a. dit ) le pluis melior release a luy a q̄ le release est fait que il poit aver , & plus enurera a son advantage ; car ꝑ c ' non solem̄t touts demands , mes aux ' touts causes de demands sōt release . et sōt deux man̄s ● demands , cestascavoire , en fait , & en ley. en fait , cōe en chescun praecipe la est expresse demand ; & p̄ c̄ ē real action il est appell demandant , en ꝑsonal plaintiff . en ley , come chescun entrie en terre , distresse p̄ rent , prisel ou seisure des biens , & semblable acts ē pays , q̄ poient estr̄ fait sans asc ' ꝑols ou demāds ē ley. sicōe release de suits est pluis large q̄ release des querels ou de actions ; issint release des demands est pluis large & beneficial q̄ asc ' de eux , car ꝑ e'est release tout ceo q̄ ꝑ les auters est release , & pluis . per release de touts demands , touts franktenements & enheritances executorie sont release : per release de touts demands al disseisor , le droit de entrie en le terre , & tout q̄ est conteine deins ceo , est release : per release de touts demands , touts executions sont release : & cestuy que release touts demands , exclude luy m̄ de touts actions , entries , & seisures . lit. f. . teign̄ , que si tenant en taile enfeoffe son uncle , l'q̄l enfeoffe un aut ' ē fee ove garrantie ; si apres le feoffee per son fait relessa a son uncle touts man̄ers 〈◊〉 demands , ꝑ tiel release le garrantie , que est covenant real & executorie , est extinct : & le reason est , p̄ ceo que ꝑ release des demands touts les meanes & remedies , & les causes de eux , que ascun ad al tr̄es . tenem̄ts , biens , chattels , &c. sont extinct , & ꝑ consequence , le droit & interest m̄ al chose . uncore releas ● touts demands ne extend a tiels br̄s per queux riens est demand , neque en fait neque en ley , mes gisont solement a reliever le plaintiff per voy de discharge , & nemy ꝑ voy 〈◊〉 demand ; come releas 〈◊〉 tout demands nest barr̄ in br̄e de error de reverser un utlagarie , & issint des semblables . veies ed. . . cok. lib. . fol. , . demandant . demandant est celuy que sue ou complain̄ ē action real p̄ title de terre ; & il est appel plaintiff ē un assise , & ē un action ꝑsonal , p̄ det , trn̄s , disceit , detinue , & tiels semblables . demurrage . est dit le temps que un neif gist idle en un port ou harbour ou sur le mere en un calm . demurrer . demurrer est , quant ascun action est port , & le defendant plead un plee , a q̄ le plaintiff dit q̄ ne voile respon ● , p̄ ceo que il n'est sufficient plee en ley ; & le defendant aver le contrarie , que il est sufficient plee ; & sur ceo ambideux mitteront le cause al judgm̄t del court : que est appel un demurrer , p̄ c o que ils ne vaont ouster en pleading , mes demurrer sur judgement de cel point ; & dicitur en latine records , moratur in lege . car en chesc ' action le difference consist ou en fait , ou en ley. si en fait , il est trie per le pais : si en ley , donque le matter est ou facile , ou dure & rare : si il soit facile , donque judgement est immediatement done ; mes qn̄t il est dure & en awrust , donque la est demurrer fait , & temps prise ou de consider ouster sur c̄ ꝑ les judges , 〈◊〉 agreer si ils poyent , ou auterment ꝑ touts les justic ' 〈◊〉 vener ensemble en le exchequer-chamber , & , sur oyer de ceo que les sergeants dieront de ambideux parts , 〈◊〉 adviser & determiner que est ley ; & ceo que est la conclude per eux estoyera firme , sans auter remedie . est auxy un demurrer al evidence done a un jury sur tryal ● un issue , plow . com. . . rast . entr. . demy sanke , ou sangue . demy sanke est , quant un home marie un feme , & ad issue per luy un fitz ou file , & le feme morust , & donques il prist un aut ' feme , & ad ꝑ luy auxy un fitz ou file : ore ceux fitz sont solonque un man̄er freres , ou , come ils sont appells demy-freres , ou freres del demy sanke , cest adire , freres per le part de pere , pur ceo que ils ont ambideux un pere , & sont ambideux de son sangue , & nemy freres ꝑ le part le mere , ne de ascun sanke ou kinne cest voy : & pur ceo le un de eux ne po ● t estre heire al auter : ear il que voile claime come heire al un per discent , doit esire de entire sanke a luy de que il claime . en mesme le manner est , si ● eme eyte divers issues per divers barons , qui fratres uterini dicuntor . denariata terrae . denariata terrae . veies fardingdeal . denelage . deneloge est le ley que les danes fesoient icy en ● rgleterre , hors de q̄ & mer● h ● nlage & wastsaxonlage gulielme le conqueror compose certain ordinances desire observe ꝑ ses subjects . denizen . denizen , ou donaison , est , lou alien nee devient le subject le roy , & obtain les letters patents le roy pur injoy touts priviledges come un home anglois : mes si un soit fait denizen , il payer̄ customes & divers auters choses come alien , come appiert per divers sta● utes de ceo fait . il semble que donaison est le voyer nosme , issint appel , pur ceo que son legitimation est dona a luy ; & nemy denizen , come derive de deins nee . et le ley est cy precise ē le feasans de donaisons , que le roy ne poit grant ' al ascū auter a faire de aliens nee donaisons , il est ꝑ la ley cy inseperablem̄t & individualm̄t an̄ex asō royal person ; car le ley esteem c ' un hault prerogative , a faire aliens subjects del royalme , & capable de terres & inheritances , come natural subjects nee sont . et p̄ ceo le stat. de h. . c. . q̄ reunite plusors del pluis ancient prerogatives & regal flowers del coron̄ , ne pas mention ascun authority de faire letters de donaisation destr̄ resume , pur c̄ q̄ asc ' ne unque ceo claim̄ pas per asc ' p̄text quecunque , il esteant cy hault point 〈◊〉 prerogative . veies co. lib. . calvins case . deodand . deodand est , quant ascun home ꝑ misfortune est occi ● ꝑ un chival , charret , ou auter chose moveant ou aydant son mort ; cel chose que est le cause de son mort , & que al temps de la misfortune mova , serra forfeit al roy , & ceo est appel deodand ; & ceo perteine al almon ' le roy , pur disposer en almes & overs de charitie . mes il nest forfeit tanque le chose soit trove 〈◊〉 record , & pur ceo ils ne poyent este claime ꝑ prescription : & le jurie que trove ou present le mort per tiel misadventure , doient auxy trover & apprise le deodand . co. l. . f. . si un chival percust un home , & puis le owner vend le chival , & donq̄ le partie q̄ fuit ꝑcusse morust del stroke ; en ceo case le chival serra forfeit come deodand , nient obstant le vendition ; car relation serra al stroke que fuit paravant le vendition . plow . com. fo . . b. omnia quae movent ad mortem sunt deodanda . departure de son plee ou matter . departure de son plee ou matter est lō un hōe plede un plee e ● barr̄ , & le plaintiff reply a ceo , & il apres en son rejoynder plede ou monstre auter matter , contrarie , ou nient pursuant a son primer plee en barr̄ ; ceo est appel un departure de son barre . come si home plead ū gen̄al agreem̄t en barr̄ , & en le rejoynder il alledge un especial agreement ; ceo serra adjudge un departure en pleading . issint en trespasse , si le defendant voil ' pleader discent a luy , & le plaintiff dit , que puis ceo le defendant infeoffe luy , & le defendant dit , que ceo feoffment fuit sur condition , pur le enfrien ● de que il enter ; ceo est departure del barre , car est novel chose . veies plow . com. f. , & . departure en spite del court. departure en spite del court est , quant le tenant ou defendant appeare al action , & ad jour ouster en mesme le terme , ou est demand apres , coment nul jour soit en mesme le terme , sil ne appear̄ , mes fait default , cest un departure en despite de court , & pur ceo il serra condemne . et est destre observe , que departure en despite del court est touts soits del part del tenant ou defendant , & le entry de ceo est , quod praedictus a , licet solenniter exactus , non revenit , sed in contemptum curiae recessit , & defaltam fecit : & ceo est quant en judgement del ley il est present en court , & esteant demand , depart en despite del court ; ceo amount a un barre en respect del despight & contempt al court. veies co. l f. . deprivation . deprivation est , quant un abbe , evesque , parson , vicar , preben ● . &c. est deprive ou depose de son preferm̄t pur ascun chose en fait ou en ley. come si un miscreant ou schismatique soit p̄sent , admit , & induct , la est bone cause de deprivation : issint si mere lasius soit p̄sent , admit , institute , & induct , uncore il serra deprive : ou fi l'incumbent ad plurality des benefices ; ou ne subscribe a les articles de religion , solonque l' statute de eliz. cap. . per le statute de h. . cap. . est enact , que si asc . person , ayont un benefice ove cura animarum del annuel value 〈◊〉 huict livers ou ouster , accepta ou p̄ndra ascun aut ' ove cure des ames , & soit institute & induct en le possession de ceo ; le prim̄ benefice serra void , & le incumbent en ceo case est ouste ou deprive ꝑ cession . en q̄l case ne besoigne al evesque a doner notice al patron , p̄ ceo que le deprivation est ꝑ act ● parliam̄t , a que chescun est partie , & doit prender notice a son peril . mes aut'ment est si le primer esglise ne soit de annuel value de huict livers , car donq̄ ceo est voide merem̄nt ꝑ l' ecclesiastical ley. veies cok. lib. . f. . & lib. . . b. deputie . deputie est celuy que exercise en aut ' droit , soit ceo office ou asc ' aut ' chose : & son forfeiture ou misdemeanour causer̄ l' officer , ou celuy q̄l deputie il est , de ꝑder son office. mes ū ne poit faire son deputie en touts cases , nisi le graunt soit issint : sicome silsoit ove ceux ou tiels sēblables parolx , exercendo per se , vel sufficientem deputatum suum ; ou si les parolx ouster , per se , vel deputatum suum , aut deputat . deputati , donq̄s il poit faire un deputie , & son deputie auxy poit faire ū deput ' aut'm̄t nemy . cōe si l' office de parkership soit grant a un , il ne poit grant ' ceo ouster a un auter , pur ceo q̄ est office de trust & confidence , & ne serra forfeit . et la est grand diversitie inter deputie & assignee 〈◊〉 un office : car un assignee est person que ad estate ou interest en l' office m̄ , & fait touts choses ē son nosme demesne , p̄ que son grantor ne respondera , si non que soit en especial cases ; & un deputie nad ascun estate ou interest en l' office , mes est forsque l' umbre del officer , & fait touts choses en le nosme del officer mesme , & rien en son nosme demesne , & pur que son grantor respondera : & quant un officer ad power a faire assignes , il poit implicite saire deputies , car , cui licet quod majus est , non debet quod minus est non licere ; & pur ceo quant office est grant a un & a ses heires , per ceo il poit faire assignes , & ꝑ consequence il poit faire deputies . le roy ꝑ ses letters patents com̄it al vis ' custodiam comitatus , sans expresse parols de faire deputie ; & uncore il poit faire un southvisc ' , cestascavoire , son deputie . issint quant devant le statute de quia emptores terrarum , le roy ou aut ' sn̄r ad done terres a un chivaler , a ten̄ de luy ꝑ service de chivalre , cest adire , 〈◊〉 aler ove son seign̄r ( quant le roy fait voyage royal a subduer ses enemies ) pur jours , bien & covenablement array p̄ le guerre ; ore il poit trover aut ' able ꝑson ; uncore ē l'un case il concerna le publique administration & execution del justice ē temps de peace ; & ē l'aut ' le publique defence ● l royalme ē temps de guerre . veies coke l. . le countee de salops case . dereine . dereine ou deraigne est prise en divers senses , & semble a vener del francois disarrayer , ceo est , confounder ou mitter hors 〈◊〉 or ● , ou aut'm̄t del norman ꝑol desrene , q̄ est le denial del ꝓꝑ fait ● un home ; & lex deraisnia fuist le proof 〈◊〉 un chose que ū denia destre fait ꝑ luy mesme , & son adversarie affirme , defeatant & confoundant le assertion de son adversarie , & monstrant ceo destre sans & envers reason ou ꝓbabilitie . et ē nr̄e ley il est variousm̄t ufe . primerm̄t generalm̄t , de ꝓver ; cōe , dirationabit jus suum haeres propinquior , glan . l. . c. . & il l. . c. . dit , habeo probos homines qui hoc viderunt & audiverunt , & parati sunt hoc dirationare . en m̄ le mann̄ bract. c̄ use , habeo sufficientem disratiocinationem & probat ' . per le statute de h. . c. . joyntenants & tenants en common averont ayde , al entent a deraigner le garrantie paramount . issint plo. in manxels case fol. . b. ad cest case , si home ad estate en fee ove garrantie , & enfeoffe estranger ove garrantie , & morust , & le feoffee vouch son heire ; le heire deraignera le primer garrantie . auxy cest parol est use quāt religious homes waiva lour orders & professions : come en kitch . fol. . b. si home fait lease p̄ vie sur condition , q̄ si le lessor devie sans issue , que donques le lessee avera fee , le lessee enter en religion , & puis le lessor devie sans issue , & puis le lessee est deraigne ; il navera fee , entant , q̄ al temps del condition le fee ne poit vest en luy . de son tort demesne . de son tort demesne semble destr̄ certein ꝑols ● form̄ ē un actiō 〈◊〉 trespasse , usa ꝑ voy 〈◊〉 reply al plee ● l defēdant : cōe si a suist b ē un action de trespasse , b respōdue p̄ luy mesme , que il ad c ' fait q̄ a appel trespass ꝑ le commandm̄t 〈◊〉 c son master ; a dit arere , q̄ b ad ceo fait de son tort demesne , sans ceo que c luy cōmanda modo & forma , &c. det. det est un brief que gist lou asc ' summe 〈◊〉 argēt est due a un ꝑ reason 〈◊〉 accompt , bargain , contract , obligat ' , ou aut ' especialtie , a estre pay a asc ' certain jour , le quel nest paya ; donques il aver̄ cest br̄e . mes si asc ' argent soit due a asc ' sn̄r ꝑ son tenant p̄ asc̄ rent-service , le sn̄r ne unques avera actiō de det p̄ ceo , mes il faut distrein p̄ ceo . auxy p̄ rent-charge ou rent-seck , quel home ad p̄ terme de son vie , en taile , ou en fee , il navera action de det cy longe come le rent endure ; mes ses executors poyent aver un action de det p̄ les arrerages due ē le vie lour testator , ꝑ le statute h. . c. . pur arrerages de rent reserve sur ū lease p̄ terme ● ans , le lessor est a son election ● aver action de det , ou pur distreiner : mes si le lease soit determin̄ , donques il ne distreinera ap̄s p̄ cel rent , mes covient luy ● aver un action de det p̄ les arrerages . et nota , que ꝑ le ley del realme det est solemēt prise de surder sur asc ' contract ou penaltie impose ꝑ asc ' statute ou paine , & nemy p̄ aut ' offences , cōe en le civil ley , debitum ex delicto . si home enter taverne a boyer , & quant il ad boya , il de ala , & ne voet pay le taverner ; le taverner navera action de trespasse vers luy pur son entrie , me ● avera action de det pur le vine . si jeo deliver drape a un tailor a fai ● e un toge , si le price ne soit agree en certain devant , come bein jeo payera pur le feasance ; ● l navera vers moy un general action de det , mes un special action ū debt , & countera specialm̄t , & il serra mis al jurie quant il deserve . mes si ū tailor fait ū bill , & il m̄ rate le feasance & les necessaries a ceo ; il navera action 〈◊〉 det p̄ ses values demesn̄ , si non q̄ fuit issint especialm̄t agree ; mes en tiel case il poit detein̄ le garm̄t tanq̄ il soit satisfi ● , cōe un hostler poit le chival do son guest p̄ son viands . cok. l ● . . auxi det gist pur fines de copyholds & p̄ amerciaments en courts leet , & court baron & sur agards & sur recoveries , en base court ou coverts de record . detinue . detinue est un br̄e q̄ gist vers luy , q̄ ayant biens & chattels deliver a luy de gar ● , refusa de restorer eux arere , vide 〈◊〉 c̄ f. n. b. . devastaverunt bona testatoris . devastaverunt bona testatoris est quāt les executors voil ' deliver legacies , ou faire restitution pur torts faits ꝑ lour testator , ou pay ses debts deu sur contract ou specialties , q̄ux jours 〈◊〉 paym̄t ne sōt uncor̄ venus , &c. & ne gard sufficiēt ē lour mains p̄ discharg ' ceux dets sur records ou specialties q̄ ils sont compellable primerm̄t per le ley de satisfier ; donques ils serront constraine de payer ● lour biens demesne ceux duties , accordant al value 〈◊〉 c̄ q̄ ils deliveront ou pay sans cōpulsion : car tiel irregular & illoyal paym̄ts sont account en le ley ū vastant des biens del testator , cy tant come si ils ad done eux sans cause , ou vend eux , & convert a lour proper use . et pur ceo si a soit lie en recognisance , cu en statute merchant ou staple , & puis recoverie est ewe vers luy en action de det , & il fait ses executors , & morust ; ses executors sont tenus per la ley a payer le det due sur le recoverie , com̄t q̄ soit puisne , devant le det due ꝑ recognisance ou statute , p̄ ceo q̄ coment q̄ ambideux sont records , uncore le judgm̄ ē le court le roy sur judicial & ordinary proceeding est pluis notorious & conspicuous , & de pluis hauit & eminent degree . q̄ ū statute ou recognisance prise en private , & ꝑ consent des parties , & p̄ ceo p̄ferre en jugem̄t del ley devāt recognisance ou statute : & si l'executors ne ceo primerm̄t satisfie , donq̄ s ● ls nont ● s biēs le mort ē lour mains , ils responderont ceo de lour biens demesn̄ . issint l'ordinarie ayant biens 〈◊〉 un q̄ mo● st intest ' ē ses mains ꝑ sequestration , questration , & un action de det fur un obligation al value des dits biens soit port vers luy come ordinarie ; il ne disposera ou administera ascun ꝑcel de les dits biens a les auters creditors a son pleasure , mes est tenus a satisfier le det primes de que un action ē attempt vers luy . dyer , fol. . placito . . si un viscount retorne ex officio sans enquest q̄ l'executor ad degast biens , l'execution issue envers les ꝓꝑ biens del executor . et si le retorn soit faux , donques l'executor poit aver un action sur le case versus le viscount pur son faux retorne , pur ceo q̄ l'executor ad nul jour a pleder . mes si le viscount retorn devastavit sur un enquest ꝑ jury , l'executor poit appear & traverse quod ipse non devastavit & try ceo , cr. mounson & bourne , & proctor versus chamberlaine . devenerunt . devenerunt est un br̄e direct al escheator , quāt ascun tenants le roy q̄ tient en capite morust , & qn̄t son fi●s & heir̄ , deins age , & en custodie le roy , morust , donq̄ cest brief isiera , com̄andant l' escheator , que il per le serement de ꝓbes & loyals homes enquire q̄ terres ou tenements ꝑ le mort le tenant deve ● gne al roy , &c. veies dyer . fol. . pla . . mes veies le stat. car. . cap. . devest . devest est un ꝑol contrary al invest ; car come invest signifie a trader le possession d'un chose , issint devest signifie lauferance 〈◊〉 ceo . devise . devise est , lou un en son testament done ou grant ses biens ou ses terres a un aut ' apres son decease . et lou tiel devise est fait des biens , si les executors ne voylent deliver eux a le devisee , il nad remedie ꝑ le common ley ; mes il covient de aver un citation vers les executors le testator , de appearer devant le ordinary , de monstrer p̄ que il ne ꝑforme le volunt le testator : car le devisee ne poit prender le legacie & luy m̄ server , mes il doit estr̄ deliver a luy per les executors . vide stat. h. . cap. . & h. . . & car. . cap. . ꝑ quel darreine stat. le ley des testaments est alter . mes ꝑ le common ley , si home fuit sole seisie 〈◊〉 terres en fee , & devisa eux ꝑ son testam̄t ; cest devise fuit voyde ; si non les terres fueront en un citie ou borough lou terres son devisable per custome . mes si asc ' home fuissoit enfeoffe al use 〈◊〉 un aut ' & ses heir̄s , & cestuy a q̄ use il fuit issint sel ● ie fesoit devise 〈◊〉 ses terres ; cest devise suit bon̄ , com̄t que il ne fuit en ville lou terres sont devisable . aux ' si asc ' home devise terres en citie , ville , ou borough , devisable , & le devisor devie ; si son heire ou asc ' aut ' abate en les terres , donq̄s le devisee avera br̄e de ex gravi querela . mes cest br̄e ne serra jamm̄s plede devant le justice le roy , mes touts foits devant le maior ou bailife en le dit ville . et ore , al fine de monstre q̄nt les leys de cest royalm , & les discreet judges de ceo , queux sont les interpreters , ont favour volunts & testaments , & issin ● devises , en yeelding al eux tiel reasonable construction come ils pensent poit bien agree ove les mentes de les morts , considerantes que volunts & testaments sont p̄ le pluis part , & per common intendment , fait quant le testator est ore en grand languor , feeble , & passa tout sperans de recoverie : car il est un opinion en le pays inter le greinder nombre , que si un home perchance soit cy prudent com̄ de fair̄ son volunt en son bon̄ sanitie , quāt il est strong , 〈◊〉 bon̄ memorie , & ad temps & opportunitie deman ● counsel ( si asc̄ doubt soit ) de l' learned , q̄ donq̄s il ne doit viver long apres ; & p̄ c ' ils c̄ deferre tanq̄ tiel temps quant ceo soit pluis cōveniēt de applier eux mesmes a le disposition de lour ames , q̄ de lour tr̄s & biens , si non q̄ il soit q̄ 〈◊〉 fresh memorie & recital ꝑ eux a cest temps , il poit un estre cause de mitt ' eux en m̄t de asc ' ● lour biens ou t'res fauxem̄t purchase , & issint move eux al restitution , &c. et a cest tēps l' escriptur ' 〈◊〉 tiels volunts est cōmunem̄t cōmit al minister del paroch , ou al ascun auter pluis ignorant , que ne scavoit queux ꝑols sont necessarie p̄ fair̄ un estate en fee-simple , fee-taile , p̄ t' me de vie , ou tiels sēblables , preter divers auters mischiefs : jeo voile pur ceo mis cy ascūs 〈◊〉 ceux cases queux sont pluis cōmon ē les bouches de les ignorāt hōes , & portant , ꝑ le scavient interpretations de les judges , un large & pluis favourable sense en volunts , que en faits . et pur ceo primerm̄t , si un devise al j. s. ꝑ son volunt touts ses terres & tenem̄ts ; icy non solemēt tous ceux terres que il ad en possessiō passōt , mes auxy touts ceux q̄ il ad en reversion , ꝑ vertue de ceux parols , tenem̄ts . et si terres sont devise a un hōe a aver a luy imꝑpetuum , ou aver a luy & ses assignes ; en ceux deux cases le devisee avera fee-simple . mes si soit done ꝑ feoffment en tiel man̄er , il nad forsque estate pur terme de vie . auxy si un home devise ses tr̄s al ● ut ' , pur doner , vender , ou faire de ceo a son volunt & pleasure ; c ' est fee-simple . un devise fait alun & a ses heir̄s males fait un estate taile : mes si tiels parolx sōt mis en un fait del feoffmēt , il serra prise p̄fee-simple , pur ceo que il nappiert de que corps les heires males serra engender . si terres sont done ꝑ fait al j. s. & a les heires mal ● s de son corps , &c. que ad issue file , que ad issue fits , & morust ; la le terre revertera al donour , & le fits de file navera ceo , pur ceo que il ne poi ● a luy mesme conveyer ꝑ heires males , car la mere est un obstacle a ceo : mes auterment est de tiel devise , car la le fitz del file ceo avera , plustoft que le volunt serra void . si un devise al enfant en ventre matris suae , cest bone devise ; mes auterm̄t ꝑ feoffem̄t , graunt , ou done ; car en ceux cases il doit estre un del habilitie p̄ prender maintenant , auterment il est void . veis el. dy. . un devise fait en fee-simple sans expresse parols del heires , est bone en fee-simple . mes si ū devise soit al j. n. il avera les terres forsque pur terme 〈◊〉 vie ; car ceux parols ne voilent porter greinder estate . si un voile que son fits j. avera son terre puis le mort sa feme ; icy le feme le devisor avera le terre primes pur terme de sa vie . issint si home devise ses biens a sa feme , & que apres le decease de son feme , son fits & heire avera le meason ou les biens sont ; la le fits navera le meason durant le vie de le feme : car il appiert que son intent fult , que sa feme doit aver le meason auxy pur sa vie , nient obstant il ne fuit devise a luy ꝑ expresse parols . si un devise soit al j. n. & a les heires females de son corps engendres , apres le devisee ad issue fits & file , & morust ; icy le file avera le terre , & nemy le fits , & uncore il est pluis digne person , & heire al son pere : mes pur ceo que volunt del mort est , que le file doit ceo aver , ley & conscience voet issint auxy . et en cest point les heathens fuerōt p̄cise , cōe app●ert ꝑ ceux verses 〈◊〉 octavius augustus , q̄ donatus report il fesoit apres q̄ virgil a son mort donoit com̄andem̄t que ses livres doint estre combure , p̄ ceo q̄ ils fueront imperfect , & uncor̄ ascūs ꝑsuadont que ils doient estre save , cōe en fait ils happim̄t fueront ; a que il respō● issint ; sed legum servanaa fides ; suprema voluntas . quod mandat , fierique jubet , parere necesse est . devoire . devoire est tāt adire cōe dutie . ceo est use en le statute de r. . cap. . ou est purview , que touts merchants del west , esteant del amitie le roy , payera touts man̄ers des customes & subsidies , & auters devoires de caleis . veies le stat. ejusd . regis cap. . devorce . devorce , divortium , dict' est a diversitate mentium , quia in diversas partes eunt qui distrahunt matrimonium ; ou auterm̄t del verbe diverto , q̄ signifie de returner arere , pur ceo q̄ puis le devorce parent ' le baron & feme , il luy returne arere a sa pere , ou auter amies , ou al lieu de que il luy prist . et com̄t q̄ devorce ne unq̄s fuit approve ꝑ le divine ley , mes al contrarie prohibite , cōe appiert ꝑ cest mandat , quod deus conjunxit homo non separet ; uncor̄ ē touts ages & bien dispose com̄onweales il ad este use & ꝑmit : et issint a cest jour ove nous la sont divers causes pur q̄ux baron & feme poient estre devorce , come primerment causa praecontractus . pur ceo si home marrie ove feme precontract , & ad issue ꝑ luy , cest issue en ley & en veritie port le surnosm̄ de sō pere . mes si puis le baron & fem̄ sont devorce pur le precontract , ore le issue ad ꝑde son surnosm̄ , & est devenus bastard , & nullius filius . cok. lib. . fol. . devorce poit estre causa frigiditatis : & pur ceo si hōe soit espouse a un fem̄ , & puis ils sont devorce causa frigiditatis , & donque le home prist auter feme , & ad issue per luy ; uncore cest issue est legitimate , pur ceo q̄ hōe poit estre habilis & inhabilis diversis temporibus , & ꝑ le devorce causa frigiditatis le marriage fuit dissolve a vinculo matrimonii ▪ & ꝑ consequence chescun de eux poit marrie arere . co. l. . f. . b. auxy hōe poit estre devorce causa impubertatis , ou minoris aetatis : & en ceo case si deux sont espouse infra annos nubiles , & apres le pleine age devorce soit prise inter eux ; ceo dissolve l'espousals , & le fem̄ poit suer ū assise vers le baron pur terres ou tenem̄ts don̄ ove luy en frank-marriage , lib. assis pla. . issint devorce poit estre causa professionis , causa consanguinitatis , causa fornicationis , & pur plusors aut's meistres , pluis tedious destr̄ jamm̄s recite . covient q̄ en le sentence de devorce le cause de ceo soit monstre , pur ceo que ascun devorce dissolve le matrimonie , cest adire , a vinculo matrimonii , bastard le issue , & barre le feme de dower ; & ascun a mensa & thoro , le quel ne dissolve le matrimonie , ne barre le feme de dower , ne bastard le issue . devorce est judgment spiritual , & pur ceo , sil soit cause , covient estre reverse en le spiritual court. veies cok. lib. . kenne's case . si feme copiholder de certeine terre , durante viduitate sua , solonque le custome del man̄or , emblea le terre , & devant le severance des emblements prist baron ; ore le seigniour avera l' emblements , & nemy le baron : mes si lease soit fait al baron & feme durant le coverture , & le baron emblea le terre , & puis ils sont devorce causa praecontractus ; le baron avera les emblements , & nemy le lessor . dicker . dicker est un parol use en l' statute jacobi cap. . & signifie le quantitie des dize hides de cuir . et semble de vener del greeke parol decas , que signifie dize . diem clausit extremum . diem clausit extremum est un brief que gist lou le tenant le roy que tient en chief morust ; donque cest brief serr̄ direct al escheator , d' enquirer de quel estate il fuit seisie , que est prochein heire , & de quel age , & de la certaintie & value del terre , & de que c ' est tenus ; & cel inquisitiō serra returne en le chancerie , & est communement appel le office apres le mort del tiel person . et est auter brief de diem clausit extremum agard hors del exchequer , apres mort del un accomptant ou dettor al roy , a levier le dett de son heire , executor , administrators terres ou biens . dies datus . dies datus est un respite done al tenant ou defendant devant le court. brook tit. continuance . dieta rationabilis . dieta ranionabilis est ascun foits use pur le reasonable journey 〈◊〉 un jour , cōe bra. l. . part . . c. . il ad ē le civile ley auters interpretations , q̄ ne besoigne destre cy insert , veies vocab . utriusque juris . dieu son act . dieu de son act , ceux sont parols plusors foits use ē nostre ley , & la est ū maxim̄ , que le act de dieu serra prejud ce a nulluy : et pur ceo si meason eschiust per tempest , ou auter act de dieu , le lessee p̄ vie ou pur ans non solem̄t serra quit en action de waste port vers luy , mes ad ꝑ le ley ū special interest a p̄nder l' merism̄ p̄ edifier l' meason arer̄ , sil voit , p̄ son habitat ' co. li. . . & lib . . a. en mesm̄ le manner , quant le condition dun obligation estoya sur deux parts ē le disjunctive , & ambideux sont possible al temps del obligation fait , & puis lun de eux deveigne impossible per le act de dieu ; le obligor nest tenus a ꝑformer l'auter part , car le condition serra prise beneficialment pur luy . cok. lib. . . dignitie ecclesiastical . dignitie ecclesiastical est un phrase de parlance use en l' stat. de h. . c. . & per les canonists est define destr̄ administratio cum jurisdictione & potestate aliqua conjuncta . diminution . est quant le plaintiff ou defendant en un breif d error allege al court q̄ part del record remaine en l' inferiour court nient certifie , & prie q̄ ceo serra certifie ꝑ cerciorari , co. ent. , . cro. john versus thomas cr. , . rolls abridg. , . diocesse . diocesse est le circuit del jurisdiction de chescun evesque : car est royalme ad deux sorts de divisions , l' un en shires on counties , en respect del temporal policy ; l'aut ' en diocesses , en respect del jurisdictiō ecclesiastical . disabilitie . disabilitie est , quāt hōe per asc ' chose ou act ꝑ luy m̄ ou son ancestor fait ou cōmit , ou ꝑ asc ' aut ' cause , est disabbe ou fait incapable a fair̄ , de inheriter , ou de prender benefit ou advantage d' ū chose , que auterment il puit aver dōe ou fait . la sont plusors choses per queux hōe poit estre disable ; & ceux sont communemēt ou ꝑ le act del partie , ou son ancestor , ou ꝑ l'act del ley , ou de dieu . disabilitie per act del ancestor ; cōe si home soit attaint de treason ou felonie ꝑ cest attainder son sangue est corrupt , & ꝑ ceo luy mesme & ses issues disable d' inherit ' disabilitie per le act del partie mesme ; come si ū home fait feoffment al aut ' home q̄ adonque est sole ; sur condition , q̄ il enseoffer̄ un tierce home devant m. & devāt m. ou le feoffm̄t fait , le feoffee prist feme ; il ad per ceo luy disable de performer le condition accordant al trust en luy repose , & p̄ ceo le feoffor poit enter , & luy ousta , come est lit. sect . . issint si le feoffee charge le terre , ou enter en statute-staple ou statute-merchaut ; ꝑ ceux acts il ad luy mesme disable , & le feoffor p̄ ceo poit enter , come en le prim̄ case . issint si jeo moy oblige , q̄ sur surrender ● un lease jeo voile faire un novel estate al lessee , & puis jeo gran ● a ouster mon reversion ; en ceo case , com̄t que jeo en apres ceo repurchase , & acquire tout le reversion a moy arere , uncore jeo aye forfeit mon obligat ' , p̄ c ' q̄ jeo fuy un foits disable de ceo ꝑforme , cok. l. . f. . aux ' si hōe soit excom̄enge , il ne poit durant ceo temps suer asc ' action , mes serra per ceo disable , co. l. . f. . & issint en plusors auters cases . disabilitie per act del ley est , puis ꝓperm̄t , quant hōe per le sole act del ley , sans ascun original ou prim̄ chose per luy fait , est disable ; & issint est alien nee . et pur ceo , si home nee hors de la liegeance de nostre seignior le roy voile suer asc ' action , le tenant ou defendant poit dire , q̄ il fuit nee en tiel pays hors de la liegeance le roy , & demand judgment sil serra respondue ; car le ley est nr̄e birthright , a q̄ un alien est collateral & estrang ' , & p̄ ceo disable pur prender ascū benefit ꝑ ceo . per le act de dieu ; come destre non compos mentis est un disabilitie ē asc ' cases , & en asc ' nemy ; p̄ q̄ semble que ces̄t difference poit estr̄ prise : que en tours cases un home non compos mentis done ou passe asc ' chose ou estate hors de luy , ceo poit apres son mort estr̄ anient & fait void ; mes ou home uon sanae memoriae fait un chose ꝑ que riens passe hors de luy , la il poit en ascuns especial cases estr̄ lie : cōe si il soit lessee p̄ ans , rendāt rent , & le lessor grāta le reversiō ; ore le lessee non compos mentis ne poit fair̄ attorn̄ment , car cestuy q̄ est amens , ou sans ment , ne poit faire attornem̄t , que est agreem̄t ; & uncore en tiel case si le lessor eject luy , & fait feoffment , & puis le lessee non sanae memoriae re-enter ▪ cest act de re-entrie subject luy mesme al distresse & action de waste . et il est ū maxim̄ ē la ley , que hōe 〈◊〉 plein age ne unq̄s serra receive a disabler son ꝑson demesne . et cest incapacitie a disabler luy mesme , quant al ascun ꝑsons est ꝑ`onal , & extend solem̄t al ꝑtie mesme ; & quant al aut's nest ꝑsonal , mes liera eux auxy . sont quater man̄er de privities ; scil . privies en sank , cōe heir ; privies en representation , come executors ou administrators ; privies ē estare , coms donee en tail , le reversion ou remainder en fee , &c. & privies ē tenure , cōe sn̄r & tenant : & deux de ceux poient disabler le ꝑson del mort , que ne fuit compos mentis , ou &c. & avoidera ses grāts ou feoffmēts , & deux nemy . car privies en sanke poient monstre le disabilitie del ancestor , & privies en representation l' infirmitie de lour testator ou intestate ; mes neque privie en estate neque privie ē tenure ceo ferra . coke , l. . f. , . veies lit. sect . . & coke , l. . f. . disalt . disalt signifie auxy mult cōe disable . littleton cap. discontinuance . disceit . disceit est un breif , ascun foits original , & ascun foits judicial . quant il est original , gist lou asc ' disceit est fait a asc ' home ꝑ un aut ' ꝑ non ꝑformance ● un bargain ou promise , donq̄s celuy q̄ est ē tiel man̄ disceive avera cest brief . quant il est judicial , il gist ou scire facias est sue hors d'ascun record vers un , & le viscount returne que il est garnie , ou il ne fuit garnie ; ou lou un praecipe quod reddat , de plee de tr̄es , ou quare impedit , del presentment al esglise , est sue vers un , & le viscount returne que le defendant est summon , lou il ne fuit ; ꝑ quel disceit & faux returne le demandant ou plaintiffe recover : donques le partie greeve avera cest brief vers luy que recovera , & vers les summoners & vers le viscount : & le brief serra direct al coroners de mesme le countie , si il continue viscount que fist le returne . issint si home fait attorney en un action reall port vers luy , & puis est agree ꝑ covin perenter le demaundant & le dit attorney , que l' attorney fayera default , que issint fait accordant , per q̄ le tenant perde son tr̄e ; donque mesme le tenant que perda le terre poit aver un brief de disceit envers l'attorney . auxy si home port action ● trespass vers deux auters , & le plaintiff & un attorney ꝑ covin causant deux estrangers , nient parties al br̄e , a vener en le court , & dire q̄ ils sont mesm̄ les deux defendants nosme en le brief , & q̄ ils designe mesme le hōe dest ● e lour attorney ē cel suit , sur q̄ mesme l' attorney , cōe attorney al defendāts nosm̄ en le ● r̄e , pledont al issue , & puis suffront l'enquest a pa●ser ꝑ son default , per quel means le plaintife recover : en cest case ceux q̄ sont voyerm̄t defendants poyēt aver ū● r̄e 〈◊〉 disceit envers mesm̄ le attorney , & recuperont lour damages . fitzh . nat. brev. . et sicome le ley punie son officers , cōe sergeants , pleadors philisers , exigenters , attornies , & aut's ; issint il reject & dampne touts acts del pluis grād importance , sils sont enterlayse ove disceit & fauxitie , cōe si un fine soit levie ꝑ disceit , & cinq̄ ans passe ; ꝑ le statute de h. . c. . touts persons & lour droits serr ● nt per ceo barre : uncore p ● r ceo que fuit per disceit , le fine serra avoide , come est adjudge en cok. lib. . fol. . en mesme le manner , si un recover terre per disceit , le recoverie pur ceo serra aniēt & sait void , ed. . . issint si feme , q̄ ad bon̄ cause destr̄ endow , voile ꝑ disceit aver l' ten̄t destr̄ disseisie , & puis recover sa dower ꝑ br̄e de dower envers le disseisor ; uncore il serra adjudge en possession envers le disseisee lorsque come un disseisoresse , en respect del dissceit . cok. lib. . fol. . et est auter manner de br̄e de disceit , ou terre q̄ est auncient demesn est implede ꝑ br̄e del roy al westm . donque le seignior del mannor avera ceo br̄e & reverse touts les form ' proceedings & judgm̄t come appiert rast . entr. , & . r. . . . h. . . discent . discent est an deux sorts , ou lineal ou collateral . lineal discent est , q̄nt l' discent est convey en mesme le line de entire sanke ; come ayei , pere , fits , fits del fits , & issint debassa . collateral discent est dehors en un auter branch dehault dentier sangue ; come le frere del ayel , frere del pere , & issint debassa . nota , que si un devie seisie en fee ou en taile de terre en que aut ' ad droit de ent ' , & ceo discend a son heire , tiel discent tollera l'entrie de cestuy que droit avoit ● enter , p̄ c ' que le heire ad ceux ꝑ le discent 〈◊〉 son pere , & issint per act de ley ; & cestuy que droit ad ne puit luy ouster ꝑ entrie sur luy , mes est mise de suer son br̄e , a demander le terre solonq̄ le nature de son title . veies de c ' littl. . cap. . & stat. hen. . cap. . disclaimer . disclaimer est , lou le seignior distreine son tenant , & il sua replevin , & le seignior avowa le prisel , per reason que il tient de luy ; si le tenant dit , q̄ il disclaime de teū 〈◊〉 luy , cest appelle un disclaimer , & si ie sn̄r sur ceo port brief de droit sur disclaimer , & il soit trove encounter le tenant , il ꝑdra le terre . auxy si un port un praecipe vers deux auters p̄ terre , & le tenant disclaime , & dit que il nest de c ' tenant , ne claime rien en ceo ; donques lauter avera tout le terre . mes si le praecipe soit envers un sole , & il disclaime , come avant est dit , le brief abatera ; uncore le demandant poit enter en le terre , & ceo tener en son droitural estate , com̄t son entrie ne fuit loyal . et apres q̄ le ten̄t ē un actiō port vers luy disclaime , il navera brief de error encount ' son disclaimer , p̄ ceo q̄ ꝑ son disclaimer il ad barre luy mesme del droit del terre ; car les parols del disclaimer sont , nihil habet , nec habere clamat in terra illa , nec die impetrationis brevis originalis predictae , &c. habuit sive clamavit , sed aliquid in terra illa habere deadvocat & disclamat : & encounter ceo il navera restitution per brief de error . veies cok. lib. . fol. . issint si ū sn̄r , en case ou il poit , disclaim son sn̄rie en court de record , son sn̄rie ꝑ ceo est extinct , & le tenāt tiēdra del sn̄r prochein paramount cestuy que issint disclaim . lit. sect . . si terres sont don̄ al barō & feme en taile ou ē fee , & le baron morust , la l' feme ne poit devest le frank-tenem̄t hors de luy per ascun verbal waiver ou disclaimer en pais : come si devant ascun entrie fait per luy el dit , que el ousterment waive & disclaime die esta ● e , & ne unques voile prender ou accepter de ceo ; uncore le franktenement remaine en luy , & el poit ent ' quant a luy pleist . issint un charter 〈◊〉 feoffm̄t fuit fait a quarter , & seisin fuit deliver a trois en nosme de touts , & apres le seisin fuit deliver , le quater veignāt view le fait , & dit ꝑ ꝑol que il voi ● e aver riens del terre , ne agrea al fait , mes disclaima : & fuit adjudge , que cest disclaimer per parol en pais ne devestera le frank-tenement hors de luy . cok. lib. . fol. . discontinuance . discontinuance est , quant un home alien a un auter terres ou tenements , & morust , & un auter ad droit a mesme les terres , & ne puit enter en eux ꝑ cause de cel alienation ; si come un abbot alien les terres de son meason a un auter ē fee , see-taile , ou pur vie , ou si un hōe alien les terres que il ad en droit sa feme , ou si tenant en taile fait , de les terres done a luy & a ses heires de son corps , asc̄ feoffm̄t , don̄ en taile , ou leas p̄ vie , nient garrant ꝑ statute h. . ꝑ fine ou liverie 〈◊〉 seisin ; dōque tiels alienat ons sont appel ' discontinuances , car tiels estates passont touts foits per liverie & seisin : en ceux cases les successors del abbe , ne la feme apres le mort sa baron , ne l' issue en le taile apres le mort le tenant en le taile , & ceux en remainder ou reversion puis le fine del estate taile , no po ● ent entre , mes chescun de eux est mise a son action . et sicōe la est discontinuance de possession , come est dit avant ; issint auxy la est discontinuance de processe ou plee ; & ceo est quant l' instant est perde , & ne poit estre prise arere , mes per novel brief a cōmencer le suit a novel ; car destre discontinue & destr̄ mis sans jour est tout un , & nient auterment que destre finalment dismisse l' court de cel instāt . west part . . tit . fines , sect . . issint crompton , en son jurisdictions , fol. . ceo use en ceux ꝑolx ; si un justice-seat soit discontinue per le nient vener des justices , le roy poit c'renuer per son brief . auxy si les justices de asc̄ court ne viendront al jour & lieu appoint , donque le cause serra discontinue tanque al aut ' jour ; come est en cok. lib. . fol. . issint si home ad un action en le court del marshalsea , & le roy remove hors del vierge , les pleas serront discontinue , cok. lib. . fol. . veies pluis de ceo en lit. lib. . cap. . & h. . cap. . que tolle discontinuances ꝑ baron seise en droit son feme . disgrading . disgrading est , quant un hom̄ ayant prise sur luy un dignity temporal ou ecclesiastical , est enap̄ 〈◊〉 ceo deprive , soit il chivaler ; clerk , ou auter home . pur que si un clerk soit deliver a son ordinarie , & ne poit acquit ' luy mesme del peche ● que il fuit convict ꝑ le jurie , il serra pur ceo disgraded ; q̄ riens aut ' est forsque le deprivation ● luy de ceux orders que il ad sur luy prise , com̄ priesthood , deaconship , ou auterment stanf. pla. co. fol. , . et en mesme le man̄ la est disgrading un chivaler , come est avantdit . veies stow. annal. pag. . et est digne l' observation , q̄ ꝑ le canon ley la sont deux sorts 〈◊〉 disgradings ; l'un summarie , ꝑ parol solem̄t , & laut ' solemn̄ , per devestant le partie disgrade de ceux ornaments & rites que sont les ensignes ● son order ou degree . veies e. . , . dismes . dismes sont les disme parts de ascun chose , mes ꝓperment de ceux choses que encrease , queux pur le pluis part perteign̄ al ministers ● esglise p̄ lour maintenance ; & ils sont divides en sorts , nosmement , predial , personal , & mixt . predial dismes sont dismes q̄ sont paid de choses queux viēt 〈◊〉 de terr̄ solemēt ; come blees , fene , fruits del arbres , & tiels semblables . personal dismes sont les dismes que sont paid de tiels ꝓfits que veign̄ ꝑ le labor & industry del ꝑson 〈◊〉 un hōe ; come ꝑ emption & vendition , gain 〈◊〉 merchandise , & de manuel-crafts homes , laborers , & tiels que labor pur salary , come carpenters , masons , & tiels sembables . mixt dismes sont les dismes ● vitels , agnes , porcels , & tiels semblables , que encrease partment del terre sur q̄ ils sont depasture , & partm̄t ● l garding , industry & diligence del owner . disparagement . disparagement est ū hōte , disgrace , ou villanie fait ꝑ le gardeln̄ ē chivalrie a son gard deins age , ꝑ reason de son marriage . come quant le gardein marrie son warde deins age de xiv . ans , & deins tiel temps q̄ il ne poit consent al marriage , al un niese , ou al file 〈◊〉 un q̄ demurt en un borough , ( q̄ est destre entend tiels queux peres ꝑfesse maincrafts , & tiels baser arts de emption & vendition p̄ gaine lour viver ) ou al un que est decrepit , ou deform̄ , ou ayāt horrible disease , come le leprosie , les pocks de franks , falling-sickness , ou tiels semblables , ou marrie luy a un feme q̄ est pas le age de infanter , & divers tiels aut's ; donques , sur le complaint fait ꝑ les amies de tiel heire , le seignior ou gardein perdera le gardship , & les profits durant le nonage de le heire , pur le disparagement fait a luy . veies litt. lib. . cap. . disseisin . disseisin est , quant un home enter en ascun terres ou tenements lou son entrie nest pas congeable , & ousta celuy que ad le franktenement . disseisin sur disseisin . disseisin sur disseisin est , quant disseisor est disseisie per un auter . disseisor & disseisee . disseisor est celuy que mist ascun home hors de son terre sans order le ley. mes le roy ne serra dit destr̄ un disseisor ; & ove ceo est un note en e. . fol. . que fuit tenus , le roy ne poit estre dit un que fist tor ● , car si un voet disseise un aut ' al oeps le roy , lou le roy nad droit , le roy ne poit estre dit disseisor . disseisee est cestuy que est mis hors 〈◊〉 sō terr̄ ; & si tiel disseisee levie fine del terre de que il est disseisie al un estranger , l' disseisor retein̄ l' terr̄ a touts jours , carl ' disseisee encont ' sō fine demesne ne poit claime , & le conusee ne poit ent ' , car l' droit que le disseises ad fuit extinct ꝑ le fine , dont l' disseisor prendra advantage : & issint fuit le opinion , co. l. . fol. . distresse . distresse est le chose prise & distreine sur asc ' terr̄ pur rent arere , ou pur auter dutie , ou pur tort fait , com̄t que le propertie de chose soit perteigne al stranger : mes si sont avers q̄ perteigne al estrange ' , il covient que ils sont levant & couchant sur mesm̄ le terr̄ , cest adire , que les avers avoient este sur le terre ꝑ certain space , que ils ont eux bien repose sur la terre , ou auterment ils ne sont distreinable pur rent ou service . si ū distreine pur rent ou auter chose sans cause loyal , donques le partie grieve avera un replevin , & sur suretie trove de pursuer son action , avera le distresse re-deliver . mes sont divers choses q̄ ne sont distreinable , viz. robe de auter home en le meason de un taylour , ou drape en le meason de ū fuller , sheerman , ou weaver , p̄ ceo que fls sont common artificers , & le common presumption est , que tiels choses ne sont perteignont al artificer , mes al auters persons q̄ eux mittont la a overer . vian ● nest pas distreinable , ne blees en sheaves , sinō q̄ ils sont en un chariot ; p̄ c̄ q̄ distress coviēt estr̄ touts foits de tiel chose dont l' viscount poit fair̄ replevin , & redeliver en auxy bone case que il fuit al prisel . home poit ● istreine pur homage de son tenant , p̄ fealtie & escuage , & auters services , & p̄ fines & amerciaments que sont assesse en un leet , mes nemy en un court-baron ; & p̄ dammage feasant , cestascavoire , qn̄t il trove les beasts ou biens ● s aut's feasons tort , ou incumbrant son terre . mes home ne poit distreine p̄ asc ' rent , ou chose due p̄ ascun terre , mes sur mesme le terre que est charge ovesque ceo . et en case lou jeo veigne a distreiner , & lauter , veyant mon purpose , chase les beasts , ou port le chose dehors , al entent que jeo ne prendra ceo p̄ un distresse sur le terre ; donq̄s jeo poy bien pursue ; & si jeo prise ceo maintenant en l'hault chimin , ou en aut ' soile , le prisel est loyal auxybn̄ la come sur la terre charge , a quecunque la propertie des biens sont . auxy p̄ fines & amerciaments assesse en un leet , un poit touts foits prender les biens celuy que est issint amerce , en quecunque soyle que ils sont deins le jurisdiction del court , ut dicitur . et quant un ad prise un distresse , il covient luy de amesn̄ ceo al common pound . ou auterment il poit garderē overt licu , issint que il done notice al partie , que il ( si le distresse soit vive avers ) poit done a luy viand ; & donques fi l'avers morust p̄ default ● viand , celuy q̄ fuit distreine serra a le pard , & donques laut ' poit distrein auterfoits pur m̄ le rent ou dutie . mes sil amesna le distresse a ū fortlet , ou hors del countie , q̄ le vise ' ne poit biē fair̄ deliverance sur replevin ; donq̄s le ꝑtie ( sur le return del visc ' ) avera ū br̄e 〈◊〉 withernam direct al visc , q̄ il prendra tant des avers ou tant des biens lauter en son garde , tanque il ad fait deliverance de le prim̄ distresse . auxy si sont en un fortlet ou castle , le vise ' poit prender ove luy le power del countie , & abat ' le castle , cōe appiert ꝑ le statute de west . . c. . ideo vide statut. districtus . districtus est asc ' foits use p̄ le circuit ou territorie deins quel hōe poit estr̄ compel 〈◊〉 appear̄ , brit. c. . & issint auxy est districtio ē le reg. orig . f. . b. distresse ē le prim̄ significatiō est divide primermēt ē finite & infinite . finite est c̄ q̄ est limit 〈◊〉 ley , q̄ tost il serra fait , a traher le ꝑtie al trial del action , cōe ū foits ou deux foits , veil . nat. brev. f. . distresse infinite est sans limitation tanque le partie vient ; come vers un jurie que refuse 〈◊〉 appearer sur le certificate 〈◊〉 assise , le proces est un venire facias , habeas corpora , & distresse infinite . veil nat. bre. f. . donque il est divine en le grand distresse , come anno h. . c. ● . q̄ fitzberbet appelē latine magnam districtionem ; nat. brev. . a. & un ordinarie distresse . un grand distresse est ceo que est fait de touts les biens & chattels que le partie ad deins le countie , brit. c. . f. . mes quaere ou il ne soit asc ' foits tout ū ove ū distresse infinite , idem fol. . ove que auxy le statute ● marlbridge semble 〈◊〉 agreer , anno h. . c. , , & . veies le veil nat. br. . b. distringas . distringas est un br̄e direct al visc ' ou as ● aut ' officer , luy cōmandant a distreine ū p̄ ū det al roy , &c. ou p̄ son appearāce al ū jour . veies le grand diverfitie de cest br̄e ē le table del reg. judic . verbo distringas . auxi est un writ ad distringendū juratores ad triandū exitum en un suit al com̄on ley . auxy est un aut ' brief de distringas villatas circumjacentes ad levandū sepes & fensuras noctanter ꝑ ignotos ꝓstrata . de quel v. cro. rep . f. . et in t ' reg. & inhabit ' de epworth . dividend . dividend est un parol use en le stat. de roteland , anno e. . ou il semble signifier un part 〈◊〉 un indenture . veies anno ejusdem , stat. . c. . divorce . divorce . vies devorce . docket . docket est un petit quantitie ● pa ● ou parchm̄t escrie , q̄ contein ē luy l'effect de plus grand escript . veies le stat. 〈◊〉 & p. & m. c. . m. west . part . tit . fines , sect . . appelle ceo dogget . dog-draw . dog-draw est un manifest dep̄hension 〈◊〉 un offen ● envers venison en le forrest . la sont quater sorts de ceux note ꝑ manwood , part . . c. . num . . de ses forrest leys , cestascavoire , dog-draw , stablestand , backbear , & bloudy-hand . dog-draw est , quāt ū est trove trahāt ap̄s ū dame ꝑ le sent 〈◊〉 un brache tient en son maine . dogger . dogger est ū sort 〈◊〉 neife , anno e. . stat. . c. . dogger-fish , ibid. c . semble destre pissons port en ceux niefes al blackney haven , &c. doggermen , anno . h. . c. . dolefish . dole-fish semble destr̄ ceux pissons que les fisherhomes annualmēt employ ē le north mere 〈◊〉 custome receivont p̄ lour allowance . veies le statute anno h. . c. . dominus litis . est un advocate en le civil ley que puis le mort de son client prosecute un suit al sentence pur l' use del executor . domo reparanda . domo reparanda est un brief q̄ gist p̄ un envers ● on vicine , ꝑ le chier 〈◊〉 quel meason il suppose ascun leid vo ●● happer a son meason demesn reg. orig . fol. . doom . doom ( del saxon dom ) signifie judgm̄t ; un parol mult use en references al arbitrateurs . dooms-day . dooms-day est ū livre q̄ fuit escrie ē le temps de s. e ● ward le confessor , cōe le autheur de veil nat. brev. dit , fol. . & devāt ē le title antient demesne , conteinant ē ceo non solem̄t touts les tr̄es ꝓ angleterre , mes aux ' touts les nosmes 〈◊〉 ceux ē queux mains ils fueront a cel temps quant le livre fuit fait . lamb. ꝓva q̄ cest livre fuit fait en le temps de gulielme le conqueror , ove q̄ cambden en so ● britain . pag. . agreea , ceo ꝓvāt hors 〈◊〉 ingulphus q̄ flourie mesme le temps , q̄ touchant les contents 〈◊〉 ceo ad ceux parolx : totam terram descripsit ; nec erat hida in tota anglia , quin valorem ejus & possessorem scivit , nec lacus nec locus aliquis quin in regis rotulo extitit descriptus , ac ejus redditus & prove ● tus , ipsa possessio & ejus possessor regiae notitiae manifestatus , juxta taxator ' fidem , qui electi de qualivet patria territorium proprium describebant . iste rotulus vocat ' est rotulus win. toniae ; & ab anglis , pro suae generalitate , quod omnia tenementa totius terrae continuit , dooms-day cognominatur . et cest livre est asc foits appel liber judicatorius , qui in eo regni descriptio diligens conti ● etur , & tam de tempore regis edwardi , quam de tempore regis gulielmi , sub quo factus est , singulorum fundorum valentia exprimitur . doomsman , semble destre suitors en le court ● un mannor en auncient demesne queux sont judges la. donative . donative est un benefice merement done & collate per le patrona un home , sans ou presentation al , ou institution per le ordinarie , ou induction per son commandment , f. n. b. . e. veies le statute de . r. . c. . peter gregor . de beneficiis , c. . num . . ad ceux parols : si tamen capellae fundatae per laicos non fuerint a diocesano approbatae , & , ut loquuntur , spiritualizatae , non censentur beneficia , nec ab episcopo conferri possunt , sed sunt sub pia dispositione fundatoris . pur que les founder & lour heires poient doner tiels chappels , sils voilont , sans le evesque . m. gwyn , en le preface a ses lectures , dit , que le roy puit do veil temps founder un frank chappel , & ceo exempter del jurisdiction del diocesan : issint auxy il puit ꝑ ses letters patents doner congee a un common ꝑson de founder tiel chappel , & de ordeigner q̄ il serra donative , & nient presentable , & q̄ le chapleine serra deprivable ꝑ le founder & ses heir , & nemy ꝑ l'evesque : & ceo semble destre le original de donatives en angleterre . fitzherbert dit , fol. . c. que la sont ascuns chauntries q̄ hōe poit doner ꝑ ses letters patents . et touts evesqueries fueront del foundation 〈◊〉 roys ● angleterre , & p̄ ceo en ancient temps ils fueront donative , & dones 〈◊〉 les roys ; uncore jam̄es l'evesqueries sont deveigne , 〈◊〉 les grants del roys , eligible per lour chapter . coke l. . f. . donor & donee . donor est celuy que done terres ou tenem̄ al aut ' en taile ; & celuy a q̄ il est done est appel le donee . dorture . dorture est un common roome , lieu , ou chābre , lou touts les religieux d' un covent dormont , & giseront tout le nuit . an. h. . c. . double plee . double plee est , lou le defendant ou tenāt en ascun actiō plede un plee ē q̄ deux matters sōt comprehendus , & chescun ꝑ luy mesme est un sufficiēt barre ou respons al action , donq̄s tiel double plee ne serra admit pur plee , sinon que un depēd sur l'auter ; & en tiel case si il ne poit aver le darraine plee sans le primer plee , donques tiel double plee serra bien recev ' . double quarrel , ou querele . double quarel est ū complaint fait ꝑ asc ' clerk out aut ' al archievesq̄● l province ēvers asc̄ inferiour ordinarie p̄ delaier ● e justice ē asc̄ cause ecclesiastical , cōe a doner sentence , ou dinstitut ' un clerk presentus , ou tiels semblables : l'effect de q̄ est , que l'archievesque , prendant conusance de tiel delay , directa ses letters south son seale authentiq̄ a tout & singular clerks de son provinee , per ceo eux commandant & donant eux authoritie & chesc ' de eux , de admonisher le dit ordinarie deins neufe jours a fair̄ le justice demād , ou auterm̄t de citer luy 〈◊〉 appearer devant luy ou son official al un jour en les dits letters prefixe , & la 〈◊〉 alledger le meistre 〈◊〉 son delay ; & dernierment de intimat ' al dit ordinarie , que sil ne performa pas le chose enjoyn̄ , ne apparust al jour assigne , il luy mesme sans auter delay procederoit de performer le justice require . et ceo semble destre terme un double querele , pur ceo que est pluis communement fait envers le judge , & celuy a que petition justice est delay . dower . dower , per le ley del realme , est un portion que ferne ad del terres del baron , quel ꝑ common ley est le tierce part ; mes ꝑ assignement del baron 〈◊〉 assent son pere al huis del esglise , poit aver tant del terre son pere come est issint assigne , & issint del assignement son baron de part son terre demesne . et dower , per custome ● ascun lieux , est de aver le moietle del terre le baron . dower est auxy un brief que gist lou home est sole seisie , durant le coverture perenter luy & sa feme , de terres ou tenements en fee-simple ou fee-taile , lou per possibilitie le issue ent ' eux poyōt enheriter si tiel home devie , sa feme recovera le tierce part de touts les terres dont le baron fuit sole seisie ascun temps durant le coverture , per brief de dower unde nihil habet , mesque il ne morust seisie , & mesque il ad fait alienation de ceo en sa vie . mes si home , devant le statute de uses , h. . ad ter̄s en queux auter hōe ou auters homes fuerent seisies a son oeps touts foits durant le coverture , & cestuy a q̄ oeps ils fueront seisies devie devant le dit statute , sa feme ne serroit endow . et auxy si devant le dit statute deux homes sont seisies de terr̄s al oeps de un ● eux , & cestuy a que oeps , &c. devie devant le dit statute , sa feme ne serra endowe . auxy si feme port brief de dower , el recovera dāmages pur le profit incurrus apres le mort la baron , sil morust de ceo seisie : mes si ascun alienation ou estate soit fait durant le coverture , issint que le baron ne morust seisie ; donque mesque el recovera la terre , uncore el ne recovera dāmages . auxy il est un auter brief de dower appel brief de droit de dower , que gist lou feme ad recover part de sa dower en mesme le ville , & auter part el est a recover . mes en divers cases feme navera dower ; sicome le baron fait treason , pur que il est attaint , donque sa feme navera dower . et si el elopa de sa baron ovesque un auter home in advoutry , & si el ne soit reconcile a son baron de son bone volunt sans coercion del esglise , el ne serra endow . veies lit. l. . c. . et nota , que lou per civil ley dower est ceo que le baron eyt ove sa feme pur le marriage , de mainteiner lour joyned estate ; per les leyes del realm per le parol ( dower ) est intende le portion que le feme puis le mort del baron avera pur sa viver . dozeine . dozeine . veies deeiners . drie exchange . drie exchange ( an. . h. . ca. . ) semble estre un subtile terme invente a disguiser usury , en quel quelque chose est pretendu a passer en ambideux partie lou en veritie rien passa sur l' un partie . drift del forest . drift del forrest nest riens forsque un exact v ● ew & examination prise un foits , deux foits , ou pluis foits en un an , come occasion require , queux avers sont deins le forest , al intent que le common en le forrest ne soit surcha ● ge , que les avers des forreiners ne sont permits de commoner la , & que avers que ne sōt cōmonables poient estr̄ expell ' . veies p̄ c̄ l'statute h. . cap. . & manwoods forrest leys , c. . droit . droit est , lou un ad chose que fuit tolle ● auter ꝑ tort , come per disseisin , discontinuance , ou tiels semblables ; le challenge ou claim de luy que doit aver est terme droit . si feme release tout sa droit a cestuy en reversion , sa dower est extinct ; car qua ● le droit , que est le foundation & le principal , est release , ꝑ consequence le action , que nest forsque le mean a recover ceo , est auxy release . per release de tour title al terre tout sont droit est extinct . issint quant home ad title ou per condition , ou ꝑ alienation en mortmaine , le release de tout son droit extinctera cest title , cok. lib. f. , . droit de entrie . droit de entrie est , quant un seisie de terre en fee est de ceo disseisie ; ore le disseisee ad droit d' entre en le terre , & poit quant il voile , ou il poit aver brief de droit envers le disseisor . duces tecum . duces tecum est un brief hors del chācery , commaundant home pur appeare la , & de porter ove luy ascun piece de evidence , ou auter chose que le court voiloit veier . dum fuit infra aetatem . dum fuit infra aetatem est un bries q̄ gist lou enfant alien son terre en fee-simple , ou pur terme de vie ; quant il vient a son pleine age il avera cest brief , ou il puit ent ' sil voile , mes il covient que il soit de pleine age jour de son brief purchase . auxy si enfant alien son terre , & devie , son issue a son pleine age avera cest brief , ou poit enter ; mes le issue navera cest brief deins son age . dum non fuit compos mentis . dum non fuit compos mentis est un brief q̄ gist lou home que est hors de son bone memory , cest adire , insane ou lunatick , alien ses terres en fee-simple , & devie ; donques son heire ap̄s son decease avera cest br̄e , mes il m̄ navera cest br̄e , p̄ c̄ q̄ home ne serra receive a disable luy mesme . auxy cest brief puit este fait en le per , cui , & post . duplicat . duplicat est un second letters patents grantus per le sn̄r chancellor , en case lou il ad grant le mesme devant ; & pur ceo sont tenus voyds per crompton en son jur. des courts , fo . . duresse . duresse est , lon un home est garde en prison , ou restraine 〈◊〉 son liberty , contrarie al order de ley , ou menasse destre occide , mayheme , ou graundement batue : & si tiel ꝑson issint en prison , ou pavor pur tiel menasse , fait asc ' especialty ou obligation ꝑ reason del tiel imprisonm̄t , tiel fait est void en le ley ; & en action port sur tiel especialty poit dire , q̄ il fuit fait ꝑ duresse de son imprisonment . mes si home soit arrest sur asc̄ action al suit ● un auter , mesque le cause del action ne soit bone ne voier , sil fait asc̄ obligation al un estraunge esteant ē prison ꝑ tiel arrest , uncore il ne serra dit per duresse . mes sil fait obligation a luy a q̄ suit il fuit arrest , destre discharge de tiel imprisonm̄t , donques il serra dit duresse . duchy . est un court en le duchy chamber de lancaster a westm . devant le chancellor del duchy de lancaster pur matters concernant les terres , & franchises del duchy , & leur procedure est ꝑ english bill come en chancery , coke . inst . . e. ealderman . ealderman enter les saxons fu ● st tant cōe count ent ' les danes , camb. brit. p. . et a cest jour nous appellomus ceux aldermen , q̄ sont associats al prim̄ officer en le common councel del ville , h. . c. . et en asc̄ lieus le prim̄ officer luy m̄ est appel alderman . earle . earle . veies countee . easement . easement est ū immunitie q̄ un vicine ad ● un auter , per charter ou prescription , sans ꝓfit ; come un voy ou ū chanel ꝑ son terre , ou tiels semblables , kitch . f. . egiptians . egiptians , vulgarit ' vocati gipsi ● s , sont counterfeit vagabonds , wallois ou anglois , q̄ eux mesmes disguise ē roabes & language , & vagueront rōt ꝑ le pais , ꝑtendant daver science ē palmestry , & issint deceive le vulgar , mes vivont principalm̄t ꝑ embler & embeasiler des b ens ; & p̄ ceo le statutes & mar. c. . & eliz. c. . fueront faits p̄ le punishm̄t de tiels ꝑsons cōe felons , sils ne departont le realme , ou issint continue ꝑ un moys . ejectione firmae . ejectione firmae . vide de ceo ē le title quare ejecit infra terminum . ejectment de gard. ejectment de gard. veis ● ceo ē le title gards . eigne . eigne est ū parol francois , & signifie le eldest ou prim̄ nee . veies enitia pars . einecia . einecia signifie primogenitur ou eldership , s ● at . de hib. an. h. . v. enitia pars . eire justices . eire justices , ou itinerant , cōe nous appel ' eux fueront justices q̄ use 〈◊〉 equitate de lieu al lieu per tout le realm , p̄ administer justice . et ceux justices avoyent authoritie en ancient temps a granter tr̄e que fuit seisie p̄ le roy pur alienation sans licence ; car adonq̄s justices ē eire puissoyent aver graunt tiel tr̄e ē fee , rendant rent , cōe justices del forrest ( q̄ ē effect , quant a cest purpose , sont justices en eire ) a cest jour poyent de tr̄es enclose deins un forrest , sans conge le roy. coke l. . fol. . election . election est quant home est laise a son frank arbiterm̄t demesne , de p̄nder ou faire un chose ou auter , q̄ il voile . come si a covenant ● payer al b un liver de pepper ou saffron devant pentecost , est al election de a tout temps devant pentecost , q̄ de eux il voile payer ; mes sil ne ceo paya devant le dit feast , donque enapres est al election de b p̄ aver son action p̄ quel a luy pleist . dyer , f. . pl. . issint si hōe done a un aut ' son chival ou vache , le donee poit p̄der l'un ou l' aut ' a son election : mes si soit q̄ il donera , en le future temps , la le donee ne poit prender l' un ou l'auter , car donque l' election est en le donor . h . . aux ' si un justice 〈◊〉 peace direct son garrant a un constable , ademes ● le party attach devant luy ou aut ' justice , est al election del constable de al' a quel justice que a luy pleist , coke l. f. . et en mesme le man̄er est ē plusors auters cases . elegit . tener per elegit est , lou home ad recover det ou dammage ꝑ br̄e devers un auter ꝑ conusance , ou en aut ' manner , il avera deins l' an devers luy un br̄e judicial , nosme elegit , ● aver execution de moiet ● e de touts ses terres & chattels , ( except boe ● s & avers a la carue ) tanque le det ou dammages soyent ousterment levies ou payes a luy ; & durant cest terme il est tenant per elegit . sil soit ousta deins le t' me , il avera assise 〈◊〉 novel disseisin , & apres un redisseisin , si besoigne soit ; & cest done p ● r le statute de west . . c. . et per l' equitie de mesme l'statute , celuy q̄ ad c̄ estate , sil soit ousta , avera assise & redisseisin , si besoigne soit . et auxy sil face ses executors , & devie , & ses executors entront , & puis soyent oustes , ils averont tiel action come luy mesme . mes sil soit ouste , & puis fait ses executors , & devie , ses executors puront enter ; & sils soient estoppes de lour entrie , ils averont ū br̄e de trespass sur lour case . sil face waste en tout le tr̄e , ou ē parcel , lauter avera envers luy maintenant un br̄e judicial hors 〈◊〉 le primer recorde , appelle venire facias ad computandum , per force de quel serra inquise sil ad levie touts les deniers , ou parcel ; & sil nad levie les deniers , donques serra inquise a quant le waste amount ; & si le waste amount si non a parcel , donques tants des deniers que le waste amounte serra abridge de les suisdits deniers queux fueront destre levies . mes sil ad fait pluis waste q̄ l' avantdit summe d' argent que fuit estre levie amount , lauter serra discharge maintenant de touts les deniers suisdits , & recovera le terre . et p̄ la superfluitie 〈◊〉 waste fait ouster le dit summe , il recovera ses dammages single . mesme le ley est de les executors , & de cestuy que ad son estate . ou si le dettor soit satisfie ꝑ foder de coals , lead , tyn , ou auters casual ꝓfits . vide stat. h. . c. si touts les terres extend sont evict del debtor ꝑ mieulx title , il poit prender novel execution , co. rep. . sil a ●● en ē fee , ou a terme ꝑ vie , ou ē taile , tout le tr̄e ou parcel de le tr̄e q̄ il tient ꝑ e ● egit , si l alienatiō soit fait deins le terme ou ap̄es , cestuy que ad droit avera vers luy un assise de novel disseisin . et covient que ils soient mis en l assise ambid ● ux , auxybien l' alienor come l' alienee : & non obstant que l'alienor devie mai ● tenant , uncore cestuy que ad droit avera vers l' alienee sole assise , cōe sil ust este son simple te● a ̄t a term 〈◊〉 ans et ceo est ꝑ l'equitie del statute de west . . cap. . pur ceo que il ad forsque chattel en effect . et mesme l' ley est de ses executors , & de cestuy que ad son estate cōe est s ●● sdit . en elegit , si le viscount retourne que le partie avoit riens jour de la recognisance fait , mes que il purchase terres puis le temps ; adonq̄s le plaintiff avera novel br̄e de aver execution de ceo . mesme le ley est sur un statute-merchant . apres le fieri facias un home poit aver le elegit , ● es non c ● nt ' , ● ntant que elegit est 〈◊〉 pluis hault nature que le fieri facia ● . si home recover per briefe de de ● & sue un fieri facias , & le viscount return que le defendant nad riens dont il poit fair gree a le partie ; donques le plaintiff avera un elegit , ou un capias sicut alias , & pluries . et si viscount returne a le capias , mitto vobis corpus , & il nad riens dont il poit fair̄ gree al partie ; il serra maund al gaole del fleet , & illonques demurre tanque il ad ● ait gree al partie : & si le viscount returne non est inve●tus , adonques issera l' exigent envers luy . nota , que en brief de det port devers parson , q̄ nad rien de lay-fee , & le viscount returne que il nad riēs per que il poit estre summon̄ ; adonques le plaintiff suera brief al evesque , que il face v ● ner son clerk , & l'evesque luy ferra vener per sequestration del esglise . et si home port brief de det , & recover , & face ses executors , & devie ; ils naveront execution , non obstant que il soit deins l' an , per un fieri facias . est un aut ' so ● t 〈◊〉 elegit for adjudgant 〈◊〉 execution envers terr-tenants , quel el ● git recite les terres enve ●● queux execution est adjudge & maund al viscou ●● deliver al creditor un moyety de ceux terres & rien enc̄ est mention des biens ou chateaux come en auters elegits . elopement . elopement est , quant feme espouse departa de son baron ove un adulterer , & ove le adulterer demurra , sans voluntarie reconcilem̄t a sa baron , per ceo el perdra sa dower , per le statute de westm . . cap. . sur que cest veil verse , sponte virum mulier fugiens , & adultera facta , dote sua carea● , nisi sponso sponte retracta . emblements . emblements sont les profits de terre q̄ ad estā semy ; & en ascuns cases cestuy que ceo emblea eux avers . & en ascuns nemy . come si tenāt pur vie emblea le terre , & apres morust , les executors del tenant pur vie avera les emblements , & nemy cestuy en reversion . mes si tenant pur ans emblea le terre , & devant que il ad sever , son terme expire ; ore le lessor ou cestuy ē reversion avera les emblem̄ts . si un disseise moy , & succide les emblem̄ts cressans sur le terre , & puls jeo re-enter ; jeo avera action de trespasse verts luy pur les emblements : mes si mon disseisor fait feoffment en fee , ou lessa le terre dont il moy disseisist , & le feoffee ou lessee prist les emblesments , & puis jeo re-enter ; jeo navera trespasse vi & armis vers eux queux veignont eins per title , mes vers mon disseisor , cok. lib. . fol. . si feme copiholder , durante viduitate sua , solonque le custome del man̄or , emblea le terr̄ , & devant le severāce des emblem̄ts el prist baron ; le sn̄r avera les emblements . issint si feme seisie de terre durante viduitate fait un lease pur ans , & l ● lessee emblea le terre , & puis la fem̄ prist baron ; ore le lessee navera les emblements , coment que son estate est determine ꝑ l'act ● un estranger . et niēt obstāt q̄ est communem̄t tenus ē nostr̄ livr̄s . que si home lessa terres a volunt , & puis le lessee emblea le terre , & puis le volunt est determine , que le lessee avera les emblements ; uncor̄ si le lessee luy mesme determine le volunt devant le severance des blees , il navera les emblements . veies cok. lib. . fol. . embrasour , ou embraceour . embrasour , ou embraceour , est celuy que , quant un matt ' est ē trial ꝑent ' ꝑtle & ꝑtie , vient al barre ove ū● l ꝑties , ( ayant receive ascun reward pur issint faire ) & ꝑle en le case , ou privim̄t labor le jurie , ou estola la pur surveier ou surview eux , per cest meanes de mitter eux en pavor & dout del matt ' . mes hōes erudite ē ley polēt ꝑler en le case p̄ lour cliēts . emparlance . emparlance est , quant home esteant a responder al action ou suit , pria ascun temps de respite , de luy mesme adviser le meux que il respondera : & nest aut ' forsq̄ continuance del cause al un jour ouster . et coment le plaintiff ( en ban ● e le roy ) apres le bar ● e plede , ad jour de reply deux ou trois termes ap̄s ; uncor̄ nul mention serra fait en le rolle ● ascun em ꝑlance ou continuance , mes l' entry serra generalment , & entēd ● estr̄ mesm̄ le term̄ . mes auterm̄t est de un barre , car ceo containe 〈◊〉 imparlāce ou continuance , & est en tiel forme : et modo ad hunc diem , scilicet , diem veneris &c. isto eodem termino , usque ad quem diem praedictus a habuit licentiam interloquendi , &c. mes nul tiel entrie est la fait sur ascun replication ou rejoynder . veies cok. lib. . fol. . brit. cap. ● . usa cest ꝑol pur le conference ● un jurie sur le cause a eux commise . est un special imparlance auxi pur un defendant salvis sivi omnibus & omnimodis exceptionibus ad breve & narrationem , ou ad billam , quel est use lou le defendant doit plede ascun matters queux ne poient estre plede puis general imparlance . encheson . encheson est un ꝑol francois mult use ē les livres de nr̄e ley , cōe ē le statute e. . cap. . & signifie tant come occasion , cause , ou reason pur que ascun chose est fait . issint est use ꝑ stamford , lib. . cap. . en son description dun deodand . encrochment . encrochment venust ● l parol franco ● s acrocher , id est , apprehendere : et signifie un illoyal gainer sur le droit ou possessiō● un aut ' . et issint un rent est dit estr̄ encroch , qn̄t le sn̄r per coercion del distres ● e ou auterment compel le tenant pur paier plus rent que besoigne , ou que doit . veies bucknal's case , rep. fol. . issint quant home mist son hay ou mure en le terre son vicine que gist prochein a luy , il est dit pur incrocher sur luy . enditement . enditement venust del francois enditer , id est , indicare . et est un bill ou declaration in forme del ley , exhibit ꝑ voy del accusatiō vers hōe pur ascun offence ou criminal ou penall , & preferre as jurors , & per lour verdict trove & presentus destre voyer devant ū judge ou officer que ad poyar de punier ou certifier l' offence . endowment . endowment ( dotatio ) signifie properm̄t le doner ou assurer del dower al fem̄ . mes est ascun foits use ꝑ un metaphor pur le mitter hors ou severance dun suffieient part ou portion al un vicar pur son perpetual maintenance , quant le benefice est approprie . et issint est use en les statutes r. . cap. . & h. . cap. . endowment de la pluis belle part . endowment de la , &c. est , quant un home morust seise de ascun terres tien en chivalry & de auters ē soccage , la vidue est accōmode de sō dower ē les tr̄s tiem en soccage , come le pluis belle part . veies littl. lib. . cap. . enfranchisement . enfranchisement est , quant hōe est ēcorporate ē ascun societie ou corps politiq̄ . issint si alien nee soit fait denison ● angleterre , il est dit destre enfranchise ; & cestuy q̄ est fait un citizen de londres , ou aut ' ville corporate ; pur ceo que il est fait ꝑnour de ceux franchises queux appent al corporation en que il est enfranchise . et quānt home est enfranchise ē un citie ou borough , il ad frank-tenement en son freedom pur son vie , & ove auters en lour politique capacitie , ad enheritance en les terres del dit corporation : pur que le matter que serra cause 〈◊〉 son dis-infranchisement covient estre un act ou fait , & nemy conation ou enterprise , dont il poit repent devant l'execu ● ion ● ceo . et que serra sufficient cause de dis-infranchiser un frank home , & que nemy , veies cok. lib. . en bagg's case , fol. . englesherie . englesherie , ou englecerie , est un veil parol , q̄ riens aut ' imply forsque destr̄ ū home anglois : car en aunciēnt tēps , come appiert ꝑ bracton , lib. . tract . . cap. . fol. . si ū home ad este tue ou murdre il fuit account destr̄ francigena ; quel ꝑol emplia chesc ' alien , jesque englesherie fuit prove , ceo est , jesque il fuit fait manifest que il fuit un home anglois : le commencement de quel fuit tiel : kanutus , le roy des danes , ayant establie son estate cy en peace , al prier de nostre barons discharga le terre de ses armies , en que il reposa son greinder safetie , sur cest condition , que les barons voilent doner consent a un lev , que quecunque tuera un alien , & fuit attache , & ne puit luy mesm̄ acquiter , serroit subject al justice : mes si le homicide escap ● , le ville ou le home fuit 〈◊〉 forfeitera . merques al roy : & si le ville ne fuit able de ceo paier , donque le hundred forfeitera & paiera ceo al trea ure le roy : & ouster , que chescun home murdre serroit account francigena , sinon que englesherie fuit prove ; & coment il serroit ꝓve , veies bracton ē mesme le chap. num . . aux ' veies horn's mirrour de justices , l. . cap. đl office del coroner , & fleta , l. . c. . cest englisherie , p̄ les abuses & torts q̄ fuerōt enap̄s ꝑceive a surđ đ ceo , fuit tout ousterment abolish ꝑ statute anno . e. . c. . veies coke , l. . f. . calvins case . enheritance . enheritance est tiel estate en tr̄es ou tenem̄ts , ou autres choses , q̄ poēt estre inherit ꝑ le heir ; soit ceo d'estate ē fee-simple , ou taile , ꝑ discēt d'asc ' đ ses ancest ' , ou ꝑ son purchase demesne . et est divide en enheritance corporate , & enheritance incorporate . enheritance corporate sont mesuages , terres , prees , pastures , rents , & tiels semblables , que ont substance en eux mesmes , & point continuer tout temps : et ceux sont appel choses corporal . enheritance incorporate sōt advowsons , velleines , ways , com̄ons , courts , piscaries , & tiels sēblables , q̄ sōnt ou poient estr̄ ap ꝑendant ou appurtenāt al enheritance iocorporate . enitia pars . enitia aut einecia pars est ceo part que , sur partition enter coparceners , eschue al eigne soer ou eigne coparcener , cōe appiert ꝑ littleton , sect . . est appeile enitia pars del parol francois eigne ou aisne , id est , primogenitus . enquest . enquest est ceo inquirie q̄ est fait ꝑ jurors en touts causes civil ou criminal touchant le matter en fait . et tiel enquest est ascun foits ex officio , queux font appells enquests 〈◊〉 office & sont traversable , & ascun foits ex prece partium . cest parol est use en les statutes de e. . c. . e. . c. . & fere en touts statutes queux parlont des trials per jurors . entendment . entendment est un common parol en nr̄e ley , quant ascun chose est en aurust , donque ꝑ entendment il serra ascun foits fait bone . come si inquisitiō soit trove devant le coroner , q̄ un ● ōe fuit murdre al a , q̄ est un franchise , & nest dit en le inquisition al a deins le franchise de a , uncore ceo serra bone ꝑ extendment ; car ꝑadventure le franchise poit exten ● ouster le ville , mes q̄ le ville mesm̄ serra presume destre hors del franchise ● l ville , est ū captious construction : p̄ q̄ l'inquisition serra bone per entendm̄t . coke l. . f. . veies kitch . f. . enterpleader . enterpleader est , quant en ascun cause un chose eschia q̄ de necessitie doit estre discusse devāt le principal cause poit estre determine : pur example , deux ꝑsons sont trove heire al tr̄e ꝑ deux several offices en un countie , ꝑ ceo le roy est en aurust a q̄ il serra liverie , p̄ quel cause , devant q̄ liverie soit fait , il voile eux aver enterpleader , & ꝑ ceo determine que est le droit heir . veies coke l. . f. . stam. prer . c. . brooke , tit . enterpleader . auxi est un auter sort de enterpleder en detinue en diverse cases queux veies en rast . entr. . entire tenancie . entire tenancie est ceo que est contrarie al several tenancie , & implie un sole possession en un hōe , ou laut ' impiia joynt ou common en plusors . veies brooke , several tenancy , & le ve ● l livre de en ● ries , south cest title . entre . entre est , lou un home enter en ascun tr̄es ou tenements , ou prist possession ● ceux . auxy sont divers br̄es d' entre quex sont en divers manners . un est br̄e d' entre sur disseisin . que gist lou home est disseise , il ou son heir l'avant dit brief avera vers mesme le disseisor , ou asc ' auter apres tenant del terre . et si le disseisor alien , ou devie seisie , donques le br̄e d' entre serra vers l'heir ovesq̄ l'alienee ē le per ; cest adire , ē q̄ le tenant non habet ingressum nisi per tiel , nosmant le disseisor , q̄ luy avoit disseisie , &c. si l'hier ou alienee devie seisie , ou aliena al auter , donques le br̄e serra en le per & cui ; cest adire , en q̄ le tenant non habet ingressum nisi per tiel ( nosmant l'heire ou l' alienee del disseisor ) cui tiel ( nosmant le disseisor ) il dimisit , q̄ luy ꝑ tort disseisie , &c. et si tr̄e soit convey ouster al plusors , ou si le primer disseisor soit disseisie , donq̄s le br̄e d' entre serra ē le post ; cest adire , q̄ le tenant non habet ingressum nisi post disseisinam , quel le prim̄ disseisor fait al demandant ou son ancestor . veies entre en le per. entre en le per , cui & post . brief d' entre en le per gist lou hōe est disseise 〈◊〉 son frank-tenement , & le disseisor alien , ou devie seisie , & son heire entra , donques le disseisee ou son heir avera le dit br̄e vers l'heire le disseisor , ou vers l'alienee le disseisor ; mes vivant le disseisor , il poit aver assise , si il voile , & le br̄e d'entre dirra , in quod a non habet ingressum nisi per b , qui illud ei dimisit , qui inde eum injuste disseisivit , &c. mes si le d ● sseisor alien , & l'alienee devie seisie , ou alien ouster a un aut ' , ou si le disseisor devie , & son heire entra , & celuy heire aliena ou devie , & son heire entra ; donques le disseisee ou son heire avera br̄e d' entre sur disseisin en le per & cui , & le br̄e dirra , in quod idem a non habet ingressum nisi per b , cui c illud ei dimisit , & inde injuste , &c. brief d'entre en le per & cui serra mainteinable vers nulluy , me lou le tenant soit eins ꝑ purchase ou per discent : car si l'alienation ou discent soit devenus hors des degrees , sur quel nul br̄e poit estre sait en le per , ne en le per & cui , donques serra fait ē le post , & le br̄e dirra , in quod a non habet ingressum nisi post disseisinam , quam b inde injust ● , & sine judicio fecit praef . n. vel m. proavo n. cujus haeres ipse est . auxy sont cinque choses q̄ mittont le br̄e d' en ● re hors des degrees ; cest adire , intrusion , succession , disseisin sur disseisin , judgment , ou escheat . . intrusion est , quant le di ●● e ● sor d ● vie seisie , & un estranger abata . . disseisin sur disseisin est , quant le disseisor est disseisie , ꝑ ū aut ' . . succession est , lou le disseisor est un home de r ● ligion , & devie , ou est depose , & so ● successor entra . . judgment est , quant un recover vers le disseisor . escheat est , quant le disseisor devie sans heire , ou fait felonie , per q̄ il est attaint , ꝑ q̄ le seignior entra come ē son escheat . en touts ceux cases le disseisie ou son heire navera brief d' entrie deins les degrees ē le per , mes en le post , p̄ ceo q̄ en ceux cases ils ne sont eins per discent , ne per purchase . entre ad communem legem . auxy il y ad un brief del entre ad communem legem , & gist lou tenant a terme de vie , tenant a terme d'auter vie , tenant ꝑ le curtesie , ou tenant en dower , alien & devie ; celuy en le reversion avera cest br̄e devers quecunque q̄ soiteins apres en le tenement . entre en casu proviso . brief d' entre en casu proviso gist , si tenant en dower alien en fee , ou p̄ terme de vie , ou p̄ aut ' vie , vivant le tenant en dower ; celuy en le reversion avera cest br̄e , q̄ est purview ꝑ le statute de gloc. c. . entre in casu consimili . brief de entre in casu consimili gist , si tenant pur vie ou tenant pur la curtesie alien en fee ; celuy en le reversion avera cest brief per l'stat . de west . . cap. . entre ad terminum qui praeteriit . brief de entrie ad terminum qui praeteriit gist , si un home lessa terres a un auter pur terme de ans , & le tenant tient ouster son terme ; le lessor avera cest brief . et si terres sont lesses a un home p̄ terme d'aut ' vie , & cestoy p̄ que vie les terres sont lessees devie , & le lessee tient ouster ; donques le lessor avera cest brief . entre sine assensu capituli . brief de entre sine assensu capituli gist lou un abbe , prior , on tiel que ad covent ou common seal , aliena terres ou tenements del droit de son esglise , sans le assent del covent ou chapter , & devie ; donques son successor avera cest brief . entre causa matrimonii praeloquuti . briefe de entre causa matrimonii praeloquuti gist ou terres ou tenements sont done a un home sur condition , que il prendra la donour a sa feme deins certein temps , & il ne luy espousa deins la dit temps , ou espouse aut ' feme , ou luy fait priestre , ou enter en religion , ou luy disable issint que il ne puit luy prender , accordant a le dit condition ; donques la feme donour & ses heirs avera le dit brief vers lui , ou vers quecunque est eins en le dit terre . mes cest condition doit estre fait per endenture , auterment cest brief ne gist . et touts ceux & auters briefs 〈◊〉 entre poient este fait en le per , cui , & post . entrusion . entrusion est un brief que gist lou tenant pur vie devie seisie de certain terres ou tenements , & un estrange entra ; celuy en ia reversion avera cest brief vers l'abator , ou quecunque que soit eins apres lour entrusion . auxy un brief de entrusion serra maintainable pur le successor de un abbe vers l'abator , que enter en ascun terres ou tenements tempore vocationis que appent a la esglise , per le statute de marlebridge , cap. u●timo . et il semble que le difference perenter un entrudor & un abator est en ceo ; que un abator est celuy que entra en terres void per le mort de un tenant en fee , & un entru ● or est celuy que entra en terres void per le mort de un tenant p̄ vie ou ans . veies f. n. b. fol. . entrusion de gard. entrusion de gard , est un brief que gist ou le heir deins age entra en ses terres , & tient hors son seignior ; car en ti ● l case le seignior navera le brief de commun . custodia , mes cest brief de entrusion 〈◊〉 gard. veil . n. b. fol. . enure . enure signifie prendre place ou effect , estre available . come un release enura per voy d'entinguishment . lit. ca. release . equitie . equitie est en deux manners , & ceux de contrarie effects ; car un abri ● ge & ● ol le letter del ley , l' auter enlarge , & adde a eo . le primer est issint define ; equilas est correctio legis generatim latae qua parte deficit ; le quel correction del general ● ols est mult use en nr̄e ley. sicome pur exampleo quant act de parliament est fait , quecunque q̄ fait tiel act serra felon , & serra mise al mort ; uncor̄ si home de non sane memorie ou enfant que nad discretion le fait , is ne serront felons , ne mise al mort . auxy si statute soit fait , que touts persons que receiveront , ou donerōt maunger ou boyer ou aut ' aid a cestuy que fera tiel act , serront accessary a son offenc , & serront mise al mort , si ils conusteront del fact ; uncor̄ l'un fait tiel act ▪ & veigne a sa proꝑfem̄ , q̄ sciāt ceo luy receive , & done maunger & boyer a luy ; el ne serra accessary , ne felon ; car ꝑ le generalitie ● les dits parols cestuy de non sane memorie , enfant , ne feme fueront enclude en entent de ley. et issint equitie correct le generaltie del ley ē ceux cases , & les parols generals sōt ꝑ equitie abridge . laut ' equit ● e est defin̄ estre un extension des parols de la ley al cases non exprimez , ayant neantmoins la mesm ● raison . ainsi qn̄t les parols enact un chose , ils enact touts choses que sont ē semblables degrees . sicōe le statute que ordeigne , que en action de det vers executors , cestuy que vient per distresse respondera , extenda per equite al administratours ; car cestuy de eu ● que vient primes ꝑ distresse , respondera per equitie del dit act ; quia sunt in aequali genere . issint le statute de gloucester done l' action de waste & le punishment de ceo vers cestuy que tient pur vie ou ans ; & per l' equitie de ceo home avera action de waste vers cestuy que tient sorsque pur un an ou demy an , uncore ceo est hors del parols del statute ; car cestuy que tient sorsque pur demy an ou un an , ne tient pur ans ; mes ceo est l' entent , & les parol : quel enact l'un , per equitie enacteront l' auter . errant . errant , id est , intinerans , ven ● st del parol francois errer , id est , errare , ou del vieux parol erre , id est , iter ; & est appropriate as justices que alont en circuit , & as bailies a large , que pur ceo sunt appelle justices errants , & bailies errants , eo q̄ ils alont & travailont del un lieu al auter , l' un pur faire justice , & auter per executer proces . veies eire . error . error est un fau ● t en un judgment , ou en le proceste ou proceeding al judgment , ou ē execution sur ceo en court de record ; quel fault en le civil ley est appel ū nullitie . auxy error est le nosm̄ 〈◊〉 ū brief , & gist lou judgm̄t est don̄ ē le com̄on banke , ou devant justice en assise , ou devant justice de oyer & terminer , ou devāt le maior ou viscoūt de londres , ou en aut ' court de record , contra le ley , ou sur undue ou male proces ; donques le ꝑtie grieve avera cel brief , & ꝑ ceo causera le record & proces destr̄ remove devāt les justices de bank le roy ; & ia fil error soit trove , il serra reverse . mes si erroneous judgment soit done en bank le roy , donques il ne poit este reverse forsque per parliament , tanque le statute eliz cap. . auxy si tiel default soit en judgment don̄ ē court q̄ nest de record , com̄ en countie , hundred , ou court-baron , donque le ꝑtie avera brief de faux judgment , pur faire le record vener devant justice de com̄on bank. auxy si error soit trove en i'exchequer , il serra redresse per le chauncelor & treasurer , ut patet ꝑ statute ed. . an . . c. & eliz. c. . est auxi un aut ' breif d'error sur judgm̄t en bank le roy : et cest ou le plaint ' voil assigne matter ē fait pur error . et c̄ gist ē mesme le court car cest court poit redress lour errors ē fait ( mes nemy lour lour errors en ley ) mes le court de com. b. ne poit issint fair . escape . escape est , lou un que est arrest deveigne a son liberty devant que il soit deliver ꝑ agard de ascū justice , ou ꝑ order de ley. escape est en deux sorts ; voluntarie & negligent . voluntarie escape est , qn̄t un arrest auter pur felonie ou auter crime , & puis celuy en que custodie il soit luy lesser aler lou il voit . et si l'arrest fuit pur felonie , ceo serra dit felonie ē cestuy que luy lesser 〈◊〉 escaper ; si pur treason , il serra treason en luy ; & si pur un trespasse , donque trespasse ; & sic d ● singulis . quant un est arrest , & puis escape encounter le volunt de cestuy que luy arrest , & ne foit freshment pursu ● , & reprise devant que le pursuor perdra le view de luy ; ceo serra dit negligent escape , non obstant que cestuy hors de que possession il escape luy reprist apres le vieu perdu . aux y si un soit arrest , & puis escape , & est a son libertie , & cestuy en que garde il fuist luy reprise apres , & luy amesne a le prison ; uncore il est escape en luy . si un felon soit arrest per le constable , & amesne a le gaol en le countie , & le gaoler ne voit luy receiver , & le cōstabl luy demit , & le gaoler auxy , & issint il escape ; cest est un escape en le gaoler pur ceo q̄ en tiel case le gao ● er est tenus de luy receiver per le main del constable , sans ascun precept de le justice de peace mes auterm̄t est , si un com̄on ꝑson arrest auter pur suspicion de felony , la le gaoler nest tenus de luy receiver sans precept de ascun des justices de peace ▪ il y ad un e ● cape auxy sans arrest : come si murder soit fait en le jour , & le muderer ne soit prise , d ● nque il est escape , pur que le ville ou le murder fuit fait serra amercie . et est destre observe , que home poit estre dit 〈◊〉 escaper , nient obstant q̄ il touts foits remain en prison . come , si home soit en prison sur deux executiōs a suit de deux several homes , & l' ancient viscount deliver ouster cest prisoner al novel viscount ꝑ indenture , accordant al usual manner , & en le dit indēture ne fait ascun mentiō 〈◊〉 un des dits executions , cest omissiō serra dit ū escape ē ley immediatment , p̄ que le ancient viscount respondera , nient obstant que l' execution fuit matt ' de record , de que le novel viscoūt puit aver prise notice . mes aut'm̄t est lou l'anciēt viscount morust , car en tiel case coviēt al novel viscount a sō peril de prēder notice de tout les executions que sont vers ascun person que il trova en le gaole : mes en le dit case , ou le viscount morust , & devant que auter est fait , un que est en execution enfreint ie gaole , & depart a large , ceo est nul escape ; car qn̄t un viscount morust , tout les prisoners sont en le custodie del ley , tanque novel viscount soit fait . veies co. lib. . fol. . si le viscount , sur un capias ad satisfaciendum a luy direct , fait retorne quod cepit corpus , & uncore nad le corps en court al jour de le retorne ; le plaintiff poit aver son action vers le viscount pur l' escape , nient obstant que le partie issint prise soit en le gaole . veies h. . . br. . escheat . escheat est , lou un tenant en fee-simple face felonie , pur que il pendue , ou abjure le realme , ou utlage de felonie , murder , ou pe ● it treason , ou si le tenant morust sans heire general ou special ; donque le sn̄r de que le terre est tenus ꝑ le tenant poit enter ꝑ voy de escheat ; ou si ascun auter home enter , le seignior avera vers luy un brief appel brief de escheat . escheator . escheator est le nosme del officer que regarda les escheats del roy en l'countie de que il est escheator , & certifia , ceux en le exchequer . cest officer est designe ꝑ le sn̄r treasurer , & ꝑ letters patents de luy , & continua en son office forsque un an ; neque poit asc ' estr̄ escheator forsque un foits en trois ans . anno . h. . cap. . & an . . ejusdem , cap. . veies pluis de cest officer & son authority en cromptons justice de peace . veies an. edw. . le forme del serem̄t del escheator veies en l' reg. orig . fol. . b. et l escheator est un officer de record , & puit ordein un south-escheat cōe le visc ' poit un south-vise ' ; unc ' l' escheator ne poit returne asc ' office virtute officii , mes il serra punie . veies f. n. b. fol. . officium escaetriae est l' escheatorship . reg. orig . fol. . eschequer . eschequer scaccarium venust del ꝑol francis eschequier , id est , abacus , q̄ en un signification est prise p̄ un counting table , ou pur l' art ou science del compt ' . et de ceo ( cōe ascuns pensoient ) le lieu ou court des receits ou accounts des revenews del corone est appel l' eschequer . auters on t auterm̄t derive le nosme de ceo . mes l' eschequer est define per crompton en son jurisd . des courts , fol. . destre un court del record , en q̄ touts les causes que concern̄ les revenews l' corō sōt tracts . escrowle . un escrow est un fait deliver al tierce person d'estre le fait del party sur future condicion , et est appell en latine schedula . rast . entr. fol. . escuage . escuage , en latine scutagium , cest adire , servitium scuti , & cestuy que tient per escuage , tient per servic ● de chival ; & a ceo appēt gard , marriage , & relief , &c mes veies le stat. car. . cap. . p̄ abolishing le court de gards & liveries , & turning touts les tenures en frank & com̄on soccage . escuage fuit un certein summe de argent levie ꝑ le sn̄r de ses tenants , solonque l' quantitie de son tenure , qn̄t l' escuage courge per tout angleterre , & fuit ordeigne per tout le council d' angleterre , qn̄t chesc ' tenant don̄a a son sn̄r ; & ceo fuit properm̄it pur susteiner le guerr̄ cōtre escoce ou gales , & nō pas cōtre aut's tr̄s , pur ceo q' les avantdit tr̄s serrōt de droit appendāt a le realm̄ d' angleterre . vide lit. l. . c. . eslisors . sont persons nominate ꝑ ū court del com̄on ley , al queux un venire facias serroit direct ( ꝑ challeng al viscount & coroners ; queux retorne le br̄e en lour nosmes ove , un pannel ces nosmes des jurors . e. . . fol. . esnecy . esnecy ē un im̄unitie don̄ al pluis eigne coparcen̄ , de eslier primerment puis l' inheritance est divide . flet. l. . c. . esplees . esplees est le profit ou commoditie que est a prender dun chose : come de un common , l' prender đl grasse ꝑ les bouches de les beasts que cōmon la ; de un advowson , le prenđ de gros dismes per le parson ; de bois , ie vender de bois ; d'un orchard , le vender de pomes & auters fruits cressant la ; d'un molin , le prisel de tolle , sont les esplees , & de tiels semblables . et nota , que en brief de droit de terre , advowson , ou tiels semblables , le demaundant doit alledge en son count , que il ou ses auncestors prise les esplees đ chose ē demād ▪ auterment l' count nest bon̄ . essendi quietum de tolonio . essendi quietum de tolonio , est un brief destre quit đ tolle , & gist en case ou les citizens ou burgesses de ascun citie ou borough ount estr̄ quit de tolle ꝑ graunt des progenitours del roy per tout le royalme , ou per prescriptiō ; donque si asc ' hōe des dits cities ou boroughs veignōt oves ses merchādises a asc ' ville , fair , ou market , & la eux mitt ' a vender , ou achatont ascuns merchandises , si les officers del di ● ville voile demaunder ascun tolle de luy encount ' l'charter le roy , ou encounter le usage & custome , il puit suer & aver tiel br̄e . f. n. b. f. . regist . orig . fol. . essoine . essoine : lou un action est port , & le plaintife ou defendant ne poit bien appear̄ al jour en court pur un de cinque causes desouth expresse , il serra essoine de saver son default . sont cinque mann̄s de essoines : cest adire , essoine , de ouster le mere , ꝑ quel le defendant avera jour per xl . jours . le second est , de terrae sancta , & sur ceo le defendant avera jour per un an & un jour ; & ces deux serront gist al commencement del plee . le tierce essoine est ; de male vener , & ceo serra adjourne al common jour , come action require ; & cest appel ' le common essoine : & quant & coment cest essoine serra , veies les statutes , & livre de abridgement de statutes , lou il est bene declare . le quater est , de malo lecti , & ceo est solement en brief de droit , & sur ceo issera brief hors del chauncerie direct al viscount , que il mandera quat ' chivalers de veier le tenant , & sil il soit mala ● , de don̄ a luy jour ap̄s un an & jour . le cinq ' essoine est , de service del roy , & gist en touts actions , forsque en assise de novel disseisin , brief de dower , darreine presentment , & en appeal de murder : mes en cest essoine il covient al jour de monstre son garrant , ou auterment il turnera a un default , si soit en plee real : ou auterment il perdera xx s. pur le journey , ou pluis per le discretion del justice , si soit en plee personel , ut patet per le statute de gloucest . cap. . essoino de malo lecti . essoine de malo lecti , est un brief direct al viscount , pur le mitt ' quat ' loyal chivaliers a veyer un que ad essoin luy mesme de malo lecti . reg. orig. fol. . b. establishment de dower . establishment de dower . semble destre l' assurance de dower fait per le baron ou ses amies devant ou al temps del espousels : et assignment de dower est le mittant ceo hors per le heire ap̄s , accordant al establishment . brit. cap. , . estandard . estandard ou standard implia ū ensigne en l' guerre ; mes est auxy use p̄ le prlm̄ ou certaine measure del roy , ꝓprortion del que touts les measures per le terre devoient estre fait per le clerke del market , aulneageor , ou auter officer , accordant a lour function . car il fuit estable ꝑ magna charta , an . h. . ca. . que la serroit forsque un assise de poys & measures per tout le royalme ; le quel est jammes confirme ꝑ an. ed. . c. . & plusors aut's statutes ; cōe auxy que touts serroyent fait al estandard seale ove le seale le roy et bone cause la est que il serroit appel estandard , p̄ ceo que il estoia constant & immove , & ad touts auters measures vient a icel pur lour conformitie ; en mesme le man̄er come souldiers en le champe on t lour estandard ou colours pur lour direction en lour march ou battel . de eux estandards & measures lies brit. cap. . veies le stat. . car. . c. . estate . estate est cel title ou interest que home ad en terres ou tenements ; come estate simple , auterment appell fee-simple , & estate conditional ou sur condition ; que est ou sur condition en fait , ou sur condition en ley. veies littl. lib. . cap. . estoppel . estoppel est , quant un est conclude & denie en ley 〈◊〉 ● arlar encounter son act ou fait dem̄ , nient obstant il soit p̄ dire le veritie . et de estoppels il y ad un grand number . un pur example est , quant j. s. est oblige en un obligation per le nosme de t. s. ou ascun aut ' nosm̄ , & est sue apres accordāt al mesme le nosme mis en l' obligation , ore il ne serra receive a dire que il est misnosme , mes ferra chase a respon ● accor ● al nosme mis ē l'obligation , cest adire , t. s ; car peradventure l' obligee ne scavoit pas son nosme mes ꝑ le report tantsolement del . obligor mesm̄ . & entant q̄ il , est m̄ le hōe que fuit oblige , il , serra estoppe , & denie en ley , p̄ adire le contrarie encont ' son fait demesne ; car auterm̄ il poit prend advantage 〈◊〉 son tort demesne , le quel le ley ne voit suffer ū hōne de faire . si le file que est heire a son pere voit suer liverie ove sa soer que est un bastard , el ne serra apres receive pur dire que sa soer est un bastard , entant que si la bastard soer prist le moietie del terre , il nad remedie per le ley. auxy si un home seisie de tr̄e en fee-simple voit prender un lease p̄ ans de mesme le tr̄e d'un estranger ꝑ fait indent , cest un estoppel durant le terme d'ans , & le lessee est per ceo barre a dire le veritie , car le veritie est , que il que lessa le tr̄e nad riens en ceo al temps le lease fait , & q' le fee-simple fuit ē le lessee : mes ceo il ne serra receive adire tanque ap̄s les ans serra determine , p̄ ceo que il appiert que il ad estate pur ans , & il fuit son folly de prender un lease de ses tr̄es demesne , & pur ceo serra issint punie p̄ son follie . estovers . estovers sont nutriment ou maintenance : et bract. l. . tract . . c. . num . . ceo usa pur tiel nutrim̄t q' home , attach p̄ felonie , est d' aver hors de ses tr̄es ou biens pur luy mesme & son familie durant son dures . et le statute ● e. . c. . ceo usa p̄ ū allowance en viands ou panne . il est anxy use pur certain allowances de boys destre prise hors del boys d'un auter hōe , westm . . c. . anno e. . west . part . . tit . fines , sect . . dit , que le nosme d' estovers conteigne house-bote , heybote , & carue-bote ; cōe sil ad en son grant ceux general parols , de rationabili estoverio in boscis , &c. il poer ꝑ ceo claimer ceux trois . estrangers . estrangers sont ascun foits prise pur ils q̄ ne sont parties ne privies al fine levie , ou feasans d'un fait ; ascuns foits ils que sont nee ouster le mere . estray . estray est , lou ascun beast ou cattel est en ascun sn̄tie , & nul conust l'owner ● ceo ; donques ceo serra seisie al oeps le roy , ou de le sn̄r que ad tiel estray ꝑ grant le roy , ou per prescription : & si l' owner fait claim a ceo deins an & jour , il ceo reavera ; ou auterment apres l' an le propertie de ceo serra al snr̄ , issint que le sn̄r face proclamation de ceo accordant a le ley. estreat . estreat est ū embleme ou resemblance , & est communen̄it use pur le copie ou vioer note d'un original escripture ; cōe estreates de amerciaments impos enles rolls d'un court , destr̄ levie ꝑ le reeve , ou aut ' officer , de chesc ' home p̄ son peeche . veies f. n. b. , & . et issnt il est use ē westm . . c. . estrepment . estrepment est un br̄e que gist lou un est emplede ꝑ un praecipe quod reddat p̄ certaine tr̄e ; si le demandant suppose que le tenant voile faire waste pendant le plee , il avera vers luy cest brief , q̄ est un prohibition , luy com̄andant ne fair̄ wast pendant le plee . et cest brief gist properment lou un home demande tr̄es ꝑ formedon , ou brief de droit , ou tiels briess lou il ne recover dammages ; car en riels briefs lou il recovera dammages , il avera ses dammages , oves regard al wast fait . etate probanda . etate probanda est un br̄e d'office , & gift p̄ l'heir le tenant que tient del roy en capite , p̄ prove que il est de plein age , direct al viscount pur inquirer de son age ; & donques il deviendra tenant al roy per mesme les services que son ancestors fist al roy. mes il est dit , q' chesc ' que passer en cest enquest serra del age de xlii . ans al meins . mes veies le stat. car. . pur abolition del court de wards & liveries , &c. evesdroppers . evesdroppers , sont tiels queux estoyent desouth mures ou fenestres ꝑ nuict ou jour a oyer novels , & a carrier eux al auters , a faire strife & debate in t ' lour vicines : ceux sont male members en le com̄on-wealth , & p̄ ceo ꝑ le stat. ꝑ westm . . c. . sont destre punie . et cest misdemeanour est ● sentable & punishable en le court-leet , kitch . f. . evidence . evidence est use gen̄alm̄t p̄ asc ' proof , soit il per le testimonie 〈◊〉 hōes , ou ꝑ escript sir too . smith , l. . c. . ceo usa ē ambideux senses en ceux ꝑols ; evidence est authentique escripts de contracts , solonque le man ' d angleterre , cest adire , escrie , enseale , & deliver . et l. . c. ꝑlant del prisoner q̄ estoia al barr̄ a plead p̄ son vie , & de ceux q' charga luy ove felonie , issint ; donque il monstre qui il poit dire ; puit luy auxi touts ceux queux fueront al apprehension del prisoner , ou que poient doner ascuus indices ou tokens , queux nous appellomusen nostre parlance evidence envers le malefactor . exaction . exaction est un tort fait ꝑ ū officer , ou ꝑ un p̄tendant d'aver authoritie , ē demaundant ou prendant ascun reward ou fee p̄ cell matter , cause , ou chose , q̄ le ley ne pas allowa . le difference ꝑenter exaction & extortion est ceo : extortion est , lou un officer demanda & extorta ū greinder summe ou reward que son voier fee : & exaction est , lou un officer ou auter home demaunda & urger un fee ou reward , lou nul man̄er 〈◊〉 fee ou reward est due . veies extortion . exception . exception est un barre ou stoppe a ū action ; & est divide ū exceptiō dilatorie , & ꝑēptorie . de ceux ambideux veies bracton , l. . tract . . & britton , c. , . exchange . exchange est , lou ū hōe est seise de certaine tr̄e & un auter est seisie d'auter tr̄e ; siils ꝑ un fait indent , ou sans fait , si le terres sont en un countie , exchange lour tr̄es , issint q̄ chescun d'eux avera auters tr̄es a luy issint exchange en fee , en fee-taile , ou a terme de vie , ceo est appel un exchange , & est bone sans liverie & seisin . en exchange il convient q̄ les estates a eux limit sont egalls ; car si ū averoit estate en fee en sa terre , & l'auter estate ē auter terre forsque p̄ terme de vie , ou en taile , tiel exchange est void ; mes fi les estates sont egal & les terres ne sont d' egal value , uncore l exchange est bone . auxy un exchange de rent p̄ tr̄e est bone . et exchange in t ' rent & com̄on est bone , & ceo covient estre per fait . auxy il covient touts foits q̄ cest parol exchange soit en le fait , ou auterment rien passa per la , sinon q̄ il ayt liverie & seisin . exchequer . exchequer . veies eschequ ● r. excommengement . excommengement est adire en latine excommunicatio , & est lou un home ꝑ la judgem̄t en court christian est excommenge , p̄ quel il est disable de suer asc ' action en court le roy ; & sil remaine excommenge xl . jours , & ne voile este justifie ꝑ son ordinarie , donques l' evesque mandera son letter al chancellour , de certifier l'excommunication ou contempt ; & sur ceo serra commaund al viscount de prendre le corps le excommenge , per un brief appel de excommunicato capiendo , jesque il ad fait gree al saint esglise pur le contempt & tort : & quant il est justice , l' evesque maundera ses letters al roy , certificant ceo ; & donques serra maunde al visc ' de luy deliver , per un brief appel excommunicato deliberando . veies le statute eliz. cap. . excommunication . excommunication . veies excommengement . execution . execution est , lou judgement est done en ascun action , que le plaintife recovera le tre , le det , ou dammages , come le case est ; & quant asc ' bri ● f est agard de luy mitter en possession , ou ● faire ascun chose per que le plaintife serra le mieux satisfie son det ou dam̄ages , ceo est appel brief d' execution , & quant il ad le possession de le terre , ou est pay le det ou dammages , ou ad le corps le defendant agard al prison , donques il ad execution . et si le plee soit en countie , ou court-baron , ou hundred , & ils delaiont l'execution del judgm̄t en favour de partie , ou p̄ auter encheason ; le demandant avera brief de executione judicii . nota , que en brief de det home navera recoverie de nul terre , mes de ceux que le defendant avoit jour de judgment rendue . et de chateux , home avera execution solement des chateux queux il avoit jour d' execution sue . executione facienda . executione f ● cienda est un brief commandant execution d'un judgment ; le divers uses de quel veies en le table de reg. judic . executor . executor est , quant un hōe fait son testament & darreine volunt , & en ceo nosma le person que executera son testament , il est son executor , & est a tant en le civil-ley come haeres designatus , vel testamentarius , come al det , biens & chattels son testator : & tiei executor avera action vers chescun dettor de son testator ; & si l' executor ad assers , chescun a que le testator fuit indett avera action vers l' executor , si ad obligation ou especialtie ; mes en chescū case lou le testat ' puissoit gager son ley , nul action gist vers executor . veres pluis de ceo devāt titulo administrators . etsi ascun aut ' person niēt fait executor , prist ou vend les biens del mort p̄ estre fue cōe executor de son tort en mesme le forme come auters executors . vide stat. car. . cap. . exemplification . exemplification est , ou hōe vo ● le aver asc ' o ● iginal record transcript & exemplifie hors del court lou il remaine , a quel purpose il poit aver un brief , come appiert ꝑ le reg. orig . fol. . et si hōe voile leader un record en auter court q' ceo lou il remain̄ , il covient a luy d'aver exemeplifie south le grand seale d' angleterre ; car sil soit exemplifie south le seale 〈◊〉 com̄on banke , excheq ' , ou tiels semblables , ceo ne servera , forsꝑ ē evidence al jurie . veies coke l. . f. . veies le stat. eliz. cap. . & el. . le force & use d' exemplifications de patents , &c. exemption . exemption est un privilege destre franke de service ou a ●● arance . & p̄ ceo un baron & baronesse , ꝑ reason de lour dignitie , sont exempts destre jure sur asc ' enques ● . coke l. . f. . aux ' chivalers , clerks & femes sont exempts d' appearer al leets ou tourne del visc ' : et ceo est ꝑ le statute de marlebridge , c. . et home poit estre exempt destre mis sur enquests ou juries per les letters patents le roy ; come le president & colledge ou communaltie de physicians ē londres fueront ꝑ les letters patents del roy , h. . coke , l. . f . ex gravi querela . ex gravi querela . veies devant tit. devise . exigent . exigent est un br̄e q̄ gist lo ● hō● sue action personal , & le defendant ne ● oit este trove , ne ad ● iens deins le countie ꝑ que il puit este attach ou distreine ; donques cest brief issera al viscount , de faire proclamatiō al cinq ' counties , chescun apres auter , que il appeare , ou auterm̄t il serra utlage : & si soit utlage , donques touts ses biens & chateux sont forfeits al roy. en un endictment de felonie l' exigent issera apres le primer capias . et en capias ad computandum ou ad satisfaciendum , & en chescun capias que issist apres judgment , l' exigent issera apres le primer capias . et auxy en appeal de mort ; mes nemy en appeal de robberie ou mayhem . ove ceo exigent issuist un br̄e per le stat. el. cap. . a fait trois proclamations envers le defendant , quel n' est en exigents puis judgment . exigenter . exigenter est ū officer del cōmon plees , & 〈◊〉 ceux sont quarre . ils font touts exigents & proclamations en touts actions ē queux ꝓces d' utlagarie gist . et ils font br̄es de supersedeas cybyen come les protonotaries sur tiels exigents come fueront faits en lour office. et ● cest officer mention est fait en les statutes 〈◊〉 h. . c. . & h. . c. . ex mero motu . ex mero motu sont parols usualm̄t mis ē les charters le roy , per q̄ux il implie , que il fait ceo q̄ est conteine en le charter de son volunt & motion demesne , sans prier ou suggestion fait per ascun auter . et l' effect de ceux parols est , d'ou ● er touts exceptions q' poierōt este prise al instrument en que ils sont conteinus , ꝑ alledger , que le roy en donont de c ' charter fuit abuse ꝑ ascun faux allegation . kitcb . f. . et quant ū charter le roy ad ē ceo ceux parols , il serra prise pluis fortment vers le roy ; p̄ que si le roy pardon a b touts ● es dets ex mero motu , touts dets que b doit cōe viscount sont ꝑ ceo pardon ; & en mesme le manner est en plusors auters cases , lou ceux ● arols serra prise cy fort vers le roy , cōe si un common ꝑson ad fait le graunt . veies coke l. . f. . ex parte talis . ex parte talis . veies devant tit. account . expeditate . expeditate est un ꝑol piusors foits use ē le forrest , impliant de pren ● hors les balls des pees de grād chiēs , pur le preservation de sporte l' roy. et un des articles destre enquire concernant le forrest est , si touts grand chiens ou mastives deins le forrest sont expeditate , accordāt al leys del forrest ; & si ascuns ne sont , l' owner de chesc ' tiel chien forfeitera al roy trois souls & quat ' deniers , crompt . jurisd . fol. . manwood ufast mesm̄ le ꝑol , & ( part . . de son forrest ley , fol. . ) relata le ancient manner de expeditating de chiens , que fuit , que les trois ortelles del primer pee del dext ' latere serrōt abscindus ꝑ le pelle ; a que il auxy adde hors del ordināce appel l' assise del forrest , que m̄ le manner de expeditating des chiēs serra jamm̄s use & observe , & nul auter . quaere de que il surde que crompton & il differont ; l'un disant que le ball del pee est abscinde ; l' aut ' , q' les trois primer ortilles sōt desumus ꝑ le pelle . expensis militum levandis . expensis militum levandis , est un br̄e direct al viscount pur levier le allowance pur chivalers del parliam̄t , regist . orig . fo . . b. et expensis militum non levandis ab hominibus de antiquo dominico , nec a nativis , est un brief de ꝑhibit l' viscount ● levier ascun allowance pur les chivalers del county sur tiels queux tiendront en ancient demesne , &c. ● bidem , fol. . b. extend . extend est , appraiser les terre ● ou tenements ● un oblige per statute , &c. que ad ceo forfeite , & deliverer eux al conusee a tiel endifferent rate , come per l' annuel profits le conusee en temps poit estr̄ satisfie son det. veies fitz. n. b fol. . & cok. lib. . fol. . f ● lwoods case . extent extent ad deux significatiōs : l'un est un br̄e ou com̄ission al viscount pur le valuing del terres ou tenements ; l' auter , l' act del viscount ou auter comissioner sur m̄ brief . broke , tit . extent , fol. . extinguishment . extinguishment est , lou un sn̄r ou asc ' aut ' ad ascun rent ou service issuāt dascū terr̄ , & il p̄chase m̄ le terr̄ , issint q̄ il ad tiel estate en le terr̄ cōe il avoit ē le rent ; donques le rent est extinct , p̄ ceo que un ne poit aver rent issuant hors đ son terr̄ demesn̄ . auxy qn̄t ascun rent seera extinct , il covient q̄ le terr̄ & le rent sont en un main̄ , & auxy q̄ l'estate q̄ il ad ne soit defeasible , & auxy q̄ il ayt auxi bon̄ estate en le terr̄ com̄ en le rent ; car sil ad estate ē le terr̄ forsque p̄ vie ou pur ans , & ad un fee-simple en le rent , donques le rent nest extinct , mes est en suspence pur cel tēps , & apres le terme le rent est revive . si soit sn̄r , mesne , & tenant , & le seignior purchase le tenancie , l' mesnaltie est extinct ; mes le mesne avera le surplusage del rent , si ascun soit , come rent secke ; auxy si home ad chimin appendant , & puis purchase le terre en que le chimin est , donques le chimin est extinct ; & issint est de un common appendant . extortion . extortion est un tort fait per un officer , ordinary , archdeacon , official , major , bailife , viscount , escheator , south-viscount , coroner , gaoler , ou auter officer , colore officii sui , en prendant excessive reward ou fee p̄ execution de son office , ou auterm̄t ; & nest auter chose en fait que plain̄ robberie , mes pluis odible q̄ robberie : car robberie est apparant , & tout temps ad ove luy le countenance de vice ; mes extortion , esteant cy hault vice q̄ robberie est , port ove luy ū countenance del vertue , ꝑ reasō● quel il est le pluis dure destr̄ trie ou discerne , & pur ceo le pluis odible . et uncor̄ ascūs il y ad que ne voiloient demurī mes stretch lour office , credit , & conscience , p̄ purchaser money , cybiē ꝑ extortiō come auterm̄t , accordant al disans de le poet virgil , quid non mortalia pectora cogis , auri sacra fames ? f. faculty . facultie est un ꝑol plusors soits use ē le statute de h. . c. . & il signifie un priviledge ou special dispensation grant al home per favor & indulgence , ● fair̄ ceo q̄ per le ley il ne puit fair̄ ; sicōe de manger chair̄ ē jours prohibits , ou p̄ tener deux ou plusors ecclesiastical benefices ensemble , &c. et p̄ le grant ' de ceux faculties la est un especial officer desouth l' archevesque de canterburie , que est appel le master des faculties . failer de record . failer de record est , qn̄t un action est port envers un , que plede ascun matter de record , & averre de ceo prove per le record ; & le plaintife dit nul tiel record ; sur que le defēdāt ad jour don a luy p̄ amesn̄ eins le record ; a quel jour il faile , ou amesn̄ eins un tiel que nest barre al cest action : donques il est dit pur failer de son record ; & sur ceo le plaintife avera judgment de recoverer . faint action . faint pleader . faint action ( come littleton , fol. . dit ) est autāt adire en ang ois , un fained action , cestascavoire , tiel action , que com̄t que les ꝑols de le br̄e sont voyers , uncore pur certain causes il nad title per la ley de recover per mesm̄ l' action : et faux action est , iou les parols del brief sont faux . issint faint pleader est un covinous , faux & collusorie manner de pleading , al deceipt 〈◊〉 un tierce ꝑtie . et encounter tiel faint pleader , ent ' auters choses , le vieux statute en e. . c. . semble destre fait . fait . fait est un escript enseale & deliver , a prover & testifier l' agreement del partie quel fait il est al chose containe en le fait : come un fait de feo ●● ment est un prove del liverie de seisin , car le terre passe per le liverie de seisin ; mes quant le fait & le liverie est joynte en ● emble , cest un prove del liverie , & que le feoffor est cont ● nt que le feoffee avera le terre . touts faits s ● nt ou ●● aint , de quel sont de ● x , trois ou plusors partes , come le case require ; de que le feoffor , grantor , ou lessor ad un ; le feoffee , grantee , ou lessee , un auter ; & ꝑadventure asc ' aut ' ꝑerson auxy un tierce &c. ou auterm̄t ils sont faies poll , single & forsque un , le quel le feoffee , grantee , ou lessee ad , &c. et chescun fait consist de trois principal choses , ( sans quel il nest perfect fait de lier les parties ) nosmement , escripture , sigillation , & deliverie . . per escripture est declare les nosmes del parties al fait , lour habitations , lour degrees , le chose grauntus , sur queux considerations , l' estate limit , le temps qn̄t il fuit grauntus , & si simplem̄t , ou sur condition , ove auters tiels semblables circumstances . mes si les parties al fait escript en le fine escriont lour nosmes , ou mis a ceo lour markes , ( come il est communement use ) il ne fait ascun matter , ( come jeo suppose ) car ceo nest entende , ou il est dit , que chescun fait covient de aver escripture . . sigillation est pluis testimonie de lour consents al ceo containe ē le fait ; come appiert ꝑ ceux ● arols , in cujus rei testimonium , &c. ou a tiel effect , mis en le fine de faits , sans queux ● arols le fait est insufficient . et pur ceo que nous sumus en sigillation & signing de faits , il ne serra dehors icy a monstre a vous , pur l'amour del antiquitie , le manner del signing & subscribing de faits en nostre ancestors le saxons temps , un fashion disferent ● ceo que nous use en ceux nostre jours , en ceo , que ils a lour faits subscribe lour noimes , ( communement adding le signe del crosse ) & en le fine mis ; ū graund number de testmoignes , nient usant a cel temps ascun man̄● sigil : et nous a cest jour , pur pluis suretie , auxybien subscribe nostre nosm̄ , ( niēt obstāt ceo nest mult necessarie ) & mis nostre sigille , & use le aide des testmoignes auxy . cest primer fashion continue per tout tanque al temps del conquest per les normans , quel manners per petite & petite al darreine prevaile enter nous ; car le primer charter sigil en angleterre est pense destre ceo del roy edward le confessor , al abbey de westminster , que esteāt educate en normandie , port ē cest realme ceo & ascun auter de lour guises . et apres le veniens de guilliam le conquerour . les normans estimants de le custome d' lour pays , ( come naturalme ● touts nations font ) reject le man̄er que i ● s trovont cy , & rereignont lour proper , come ingulphus l' abbot de croiland , que vient eins o ● e l' conquest , resmoigne , dicens ; normanni chirographorum confectionem , ( cum crucibus aureis & aliis signaculis sacris in anglia firmari solitam ) in ceram impressam mutant , modumque scribend ' anglicum rejiciunt . mes nient obstant ceo ne fuit fait tout al un temps , mes il increase & vient eins per certain degrees : issint que primes & pur un season le roy solem̄t , ou un peu aut ' ● le nobilitie , use de sigiller ; donques le noble-homes p̄ le pluis part , & nul auters . quel chose un home poit veier en le historie de battel abbey , lou rich. lucie chief justice de angleterre , en la temps del roy hen. le second , est report de aver blame un meane subject , p̄ ceo que il use un private sigile , quant ceo pertain ( come il dit ) al roy & nobility solement . a quel tēps auxy ( come j. rosse note ceo ) ils use de ingrave en lour sigils lour pictures demesne & coūterfeits , cover ove longe tunicle super lour armours . mes apres ceo les gentlehomes ● l meliour sort prist l' fashiō , & p̄ ceo q̄ ils ne fuerōt touts guerriours , ils fesoient sigills ingrave ove lour several coats ou shields de armes , p̄ difference , come mesme l' authour report . al darreine , en temps del roy ed. le . sigils fueront mult common ; issint que non solement tiels que portant armes use de sigiller , mes auters hōes auxy ●● soiēt al eux mesm̄s signets de lour devises demesne , ascūs p̄ndrants les letters de lour nosmes demesne , ascuns flowers , ascuns knots & flourishes , ascuns oyseaux & beasts & ascūs auters choses , come nous ore unc ' journalment veiomus en use . ascuns auters manners de sigillation ouster ceux ad este oye euter nous ; come nosmement ceo del roy edward le tierce , ꝑ que il done al norman le hunter , le hop , & le hop-ville , ove touts les bounds upside down : et en testimoign ' que il soit verie , i l mord ' le cere ove son fore dent . le semblable d cest fuit mōstre a moy ꝑ un de mes amies ē un loose chart ' , mes nō mult ancientm̄t escript , & p̄ ceo il voile moy q̄ jeo esteema 〈◊〉 c ' come jeo penie bien : il fuit come enfuist . jeo guilliam king done a vous powlen royden ma hop & ma hop-terres , ove touts les bounds up & down , de coelo al terre , de terre ad infernum , pur toy & vestres a demurrer d' moy & mes , al toy & vestres , pur un arc & un broad sagit , quant jeo veign ' pur hunt 〈◊〉 yarrow , in testimaign ' que ceo est veray , jeo morde cest cere ove mon dent , en presence de magge , maud , & margery , & mon tierce fitz henry . itē ceo d' alberick d' vere , conteignont le donation de hatfield , al quel il fixe ū curt noyer-haft cuttle , semblable al ū vieux demy-denier whittle , en steed de un seal : ove divers tiels semblables . mes asc ' peradventure voilent pense que ceux fueront receive en common use & custome , & que ils ne fueront les devises & pleasures 〈◊〉 un peu singular ꝑsōs : tiels ne sōt meines deceive que ils que pensont chescun charter & escript , que ne ad sigille annexe , destre cy auntient come l'conquest ; lou ē veritie sigillation ne fuit communem̄t use tanque al temps del roy ed. . come ad este dit . . deliverie , niēt obst ' il soit mis darreign , nest l' meanest ; car ap̄s q̄ ū fait soit escript & sigille , si ne soit deliver , tout le residue est a nul purpose . et cest deliverie doit estre fait ꝑ le partie luy mesme , ou son sufficient garrant ; & issint il luy liera quecunque escript ou sigil ceo : & per cest darreine act le fait est fait perfect , accordant al entent & effect de ceo ; & p̄ c ' en faits le liverie est destre prove , &c. issint poyes veyer , escripture & sigillation , sans deliverie , est a nul purpose : sigillation & deliverie , lou est asc ' escripture work nul chose : et escripture & deliverie , sans sigillation , auxy fait nul fait . et pur ceo ils touts doient jointm̄t concur p̄ faire un perfect fait . faitour . faitour est ū parol q̄ est use en le vieux repeale statute de r. . cap. & est la prise ē l' pire sense , p̄ ū male feasor , ou un oisif companiō , & semble icy destr̄ un synonymon al vagabond . fardingdeale . fardingdeale , auterment farundel , de terr̄ , implia le quart part ● ū acre , crompt . jurisd . fol. . b. quadrantata terrae est lie en le regist . orig . fol. . b. lou vous aves auxy denariata & obolata , solidata & librata terrae , que per probabilitie surderoit en proportion de quantitie de fardengdeal , come un male , denier , soulz , ou liver surdont en value & estimation ; donque obolata est un demy acre , denariata l' acre , solidata douze acres , & librata douze score acres . uncor̄ ē l' reg. orig . fol. . & . vous poyes trove viginti libratas terrae vel reditus ; ꝑ q̄ il semble que librata terrae est tant que dona vigint soulx per l' an ; & centum solidatas terrarum , tenementorum , & redituum , fol. . et en f. n. b. fol. . la sont ceux parols , viginti libratas terrae vel reditus , que prova ceo destre tant terre cōe est rate al vigint soulz ꝑ l' an . veies furlong . farme , ou ferme . farme , ou ferme , est usualment le chief messuage ē ū village ou town , a que apertinent grād demeans de touts sorts , & ad este use destre lesse pur terme de vie , ans , ou a volunt . le rent que est reserve sur tiel lease , ou semble est appelle farme ou ferme . et farmour ou fermour est celuy que occupia le farme ou ferme , ou est lessee de ceo . auxy gen̄alm̄t chesc ' lessee p̄ vie , ans , ou al volunt , est appel farmour , ou fermour . et nota , que ils sont appelles farmes , ou fermes , del saxon parol feormian , que signifie pur feed , ou rend victuall : car en ancient temps lour reservations fueront cybien en victual come argent ; tanque al darrein̄ , & ceo ● rincipalm̄t ē le tēps de roy h. . per agreem̄t , le reservation de victuals , fuit convert en redie argent , & issint uncore ad continue ent ' plusors homes . fate , ou fatt . fane , ou fatt , est un measure mention en les statutes de h. . cap. . & h. . cap. . pur conteiner huict boisseaus : mes les citizens & merchants de londres ( com̄ appiert ꝑ ceux statutes ) & les purveiors le roy voilont aver ceo measure & un boissean ouster pur un quartier ; & issint il avoient neufe boisteaus pur un quartier de blee . faux imprisonment . faux imprisonment est un brief que gift lou home est arrest & restraine de son libertie per un auter encounter order de ley ; donques il avera vers luy cest brief , per que il recovera dammages . veies pluis de ceo devant , tit . arrest . faux judgment . faux judgment . veies de ceo devant , tit . error . fealty . fealtie est un service , appelle en latine fidelitas , & serra fait en tiel manner ; cestascovoire , le ten̄t tiendr̄ la mam̄ dextre sur un livre & dirra a son sn̄r , jeo a vous serra foyal & loyal , & foy a vous portera des tenements que jeo claim de tener de vous , & verament a vous ferra les customes & services que fair vous doy al termes assignes ; si come moy ayde dieu : & basera le livre : mes il ne genuler̄ , come en fesant homage . et de ceo veies apres en le title homage . auxy fealty est incident a touts manners de tenures . fee. fee ( feodum ) est en nostre ley vox aequivoca des divers significations : car est plus communement prise pur un estate del inheritance en terres ou tenements al un & ses heires , ou al un & les heirs 〈◊〉 son corps , mes est use auxy pur le compass , circuit ou extent 〈◊〉 un seigniorie ou mannor . et de ceo venust l' ordinarie plee ē barre al un avowry , que le terre sur que il avow est hors de son fee. et tiercem̄t , il est prise pur le reward ou salarie don̄ al ū pur l' execution de son office ; cōe le fee dun forrester , ou le gardein̄ dun parke , ou le fee dun visc ' pur l'server dun execution , come est limit per l'statute el. c. . et issint est auxy prise pur ceo consideratiō q̄ est don̄ al un sergeāt al ley , ou al un pleader , ou un physitian , pur lour counsel ou advise en lour ꝓfession , que ( come est bien observe per sir j. davies , en son preface a ses reports ) nest ꝓperm̄t merces , forsque honorarium . mes uncore en le dialect de nr̄e ley c ' est appel son fee. fee expectant . fee expectant : lou terres sont don̄ al home & son feme en frank-marriage , a aver & tener al eux & lour heires , en cest case ont fee-simple ; mes si sont don̄ a eux & les heires de lour corps , &c. ont taile & fee expectant . kitch . fol. . fee ferm . fee ferm est , quant un tenant tient de son seignior en fee-simple , rendant a luy value del moietie , ou de tierce , pr̄t , ou auter part đel terre ꝑ an . et il que tient en fee ferme ne doit payer relief , ou faire auter chose , me ficome est contein̄ en le feoffment , forsque fealtie , car c ' appent a touts manners tenures . fee-simple . fee-simple est , quant ascun person tient terre ou rent , ou auter chose , inheritable a luy a & ses heires a touts jours ; & ceux ꝑols , ses heires , font l'estate 〈◊〉 inheritāce ; car si terre soit done a hōe a touts jours , unc ' il nad forsque estat ' p̄ vie . auxy si tennant en fee-simple devie , son primer fits serra son heire ; mes sil nad fits , donque touts les files fetront son heire , & chescun avera son part ꝑ partl c ' : mes sil nad fits ne file , donques son prochein cousin collateral de l' entire sanke serra son heire . felo de se . felo de se est il que commit felony per murdering soy mesme . veies cromp. justic , de paix , fol. . felonie . felonie est un general terme , que comprehend divers heinous offences , pur que l'offendors dolent suffer mort , & perder lour terres . et semble que eux sone appelles felonies , del latine parol fel , que est en anglois gall , en francois , fiel ; ou del ancient parol anglois , fell , ou fierce pur ceo que sont entends destr̄ faits f ● lleo animo , ove fell , fierce , ou mischievous mind . quant home sans asc ' colour de ley emblea les biens 〈◊〉 un aut ' , amountant al value de xii deniers ou pluis , ceo est larceny : mes si un approcha a le person 〈◊〉 un aut ' en le haultchimin , & luy robba de ses biens , mesque ils ne sont sorsque al value de un denier , il est felonie ; & ceo est appel robberie , & pur ceo il serra pendue . fence-moys . fence-moys est un parol del forrest , & signifie le space ● jours en l' an , cestascavoire , jours devant midsummer , & jours apres , en quel temps est prohibit pur ascun home de chaser en l ● forrest , ou de passer en ceo pur disturber les feres . le reason de que est , pur ceo que a ceo temps parturiunt damae . et p̄ ceo cest moys est appel le fence-moys , ou defence-moys , co que les dames sont adōque destre defends del fright ou terror . veies manw. forrest leys , c. . fol. . b. feodarie . feodarie fuit un officer en le court de gards , appoint ꝑ le mr. de ceo court , ꝑ vertue del statute h. . cap. . destre present ovesque l escheator en chesc ' countie al trover des offices , & a doner evidence pur le roy cybien pur le value come pur le tenure . et son office fuit auxy pur survey les tr̄● s le gard apres l'office trove , & pur retourne le verie value d'eux en le court , ●̄ assigner dower as vefues le roy ; pur receiver touts les rents des terres les gardes deins fon circuit , & pur eux responder al receiver le court. mes veies le stat. car. . c. . p̄ abolir le dit court. feoffment . feoffment est , lou un done terre , measons ou tiel choses corporal heriditable , a un aut ' en fee-simple , & de ceo deliver seisin & possession . aux ' si un fait done en le taile , ou lease de vie , il covient de done liverie & seisin , ou auterment riens passera per le grant. feoffor & feoffee . feoffor est ce ● uy que enfeoffee ou fait feoffment al aut ' de tr̄es ou tenem̄ts en fee-simple : et feoffee est celuy que est enfeoffe , ou a que le feoffm̄t est issint fait . ferdfare . ferdfare , hoc est , quietum esse de eundo in exercitum , flet. l. . c. , ferdwit . ferdwit , hoc est , quietum esse de murdro in exercitu facto , flet. l. . c. . ferrie . est un liberty ꝑ prescription ou grant del roy d'aver boat pur passage sur un grand stream de caryages ou chivals & homes pur reasonable toll . feude . feude , ou mortal feude , est un parol germanois , & signifie ū haine emplacable , q̄ ne poit estre satisfie forsque ove le mort del enemie : tiel est ceo ent ' les hōes 〈◊〉 scotland & en le nord parts d' angleterre , q̄ est ū cōbinatiō de tout le consanguinity p̄ le vengeance del mort d' asc ' 〈◊〉 lour sanke sur l'homicide & tout son race . et cest ꝑol est mention ē le stat ' 〈◊〉 el. c. . fieri facias . fieri facias est un brief judicial , & gist lou home recovera det ou dammages en court le roy ; donques il avera cest brief al viscount , luy commandant que il levie le det & les dammages des biens celuy vers que le recoverie est ewe , & gist solement deins l'an & jour , & apres l'an luy covient suer un scire facias ; & si le partie soit garnie , & ne vient al jour , &c. ou sil vient , & ne scavoit rien dire , donques celuy que recovera avera brief de fieri facias direct al viscount , que il face execution de judgment . mes si home recovera vers un feme , & el prist baron deins l'an & jour ; donques il covient que cestuy que recovera avera scire facias vers le baron . auxy est si abbot ou prior recover & devie , son successor deins l'an avera scire facias . vide de ceo pluis en le title scire facias , & title execution . auxy est un auter manner de fieri facias versus rector , lou sur un general fieri facias le viscount retorne sur ceo , quod nulla habet bona seu catalla , & sur ceo brief est direct al evesque del diocess ou il est rector . et sur ceo le evesque levy le debt des profits del gleab & dismes del rectory . fifteenth . fifteenth . veies quinzisme . filazer . filazer del ( parol francois fi●ace , id est , filum ) est le nosme dun officer en le common plees , des queux sont icy . ils fonts touts les original process la , & le distresse infinite sur summons retourne en actions ꝑsonals , & le capias sur le retourne del nihil , & touts briefs de view en cases lou le view est prie . et lou le appearance est ove eux , ils enter l' imparlance , & le general issue en common actions , & judgments per confession devant issue j●yne , & font briefs d'execution sur eux . et ils font briefs de s●pers●deas apres capias agard , quant le defendant appeare en lour office. et cest officer est mention en les statutes de h. . c. . & h. . c. . file . file ( filacium ) est fi●um vel chorda qua brevia & ali ● curiis exhibita trajiciuntur , pro meliori conservatione eorundem . finders . finders est un ꝑol mention ē mults statutes , come en r. . c. . r. . c. . h. . c. . & h. c. . & semble destr̄ tōut un ove ceux officere queux ore nous appellomus scrutatores , imployes p̄ le trover des biens imports ou exports sans prayer del custō . fine . fine asc ' foits est prise pur un summe d'argent quel asc ' est de payer al roy p̄ ascū contempt ou offence ; quel fine chesc ' que com̄it asc ' trespass , ou que est cōvict que il fauxmēt denie son fait , ou fesoit ascun chose en contempt de ley , payera al roy : que l est appel fine al roy. ascun foits fine est prise pur un final concord quel est ewe enter ascuns persons touchant asc ' tr̄e ou rent , ou auter chose , dont asc ' suit ou brief est enter eux pendant en asc ' court ; quel poit este en divers manners . l'un est , quant l'un partie r ● conust ceo estr̄ le droit del aut ' , cōe ceo que il eit del done cestuy que fesoit le reconusans , quel touts foits suppose un feoffment precedent , & est dit fine execute : ou si il reconust ceo destre le droit del auter , omittant les parols ( come ceo que il eit de son done ) c ' esteant fine sur conusans de droit tant ' , si soit levie a cestuy que eit le franktenement del terre , est fine sur r ● lease . si cestuy que ceo conust est seisie , & celuy a que est levie n'eit le frank-tenement del tr̄e , donques est dit fine executorie , quel cestuy a que le tr̄e est conus poit executer per entrie , ou scire ● acias . ascun foits tiel fine sur conusance de droit tantum est p̄ faire un surrender : lou en ceo est repeat , q' le reconusor eit estate p̄ vie , & l' aut ' en reversion . ascun foits ceo est ewe de passer un reversion , lou particular estate est recite destr̄ en auter , & que le reconusor voit que l' auter avera le reversion , ou que le terre remaine al auter apres le particular estate finie . et ascun foits celuy a que le droit est conus , come ce ● q̄ il ad del done le reconusor , rendra 〈◊〉 ū rent hors de ceo al conu ●● r. 〈◊〉 ceo asc ' foits pur l'entire fee ▪ ascun foits pur un particular estate , ove remainder ou remainders ouster ; & asc ' foits ove reservation 〈◊〉 rents ove distresse & graunt 〈◊〉 ceo oust ● r per mesme fine . est appel fine , quia ꝑ ceo le suit est determine ; & si ceo soit record ove proclamation , solonque le statute h. . ceo barre estrangers . fine force . fine force , signifie un absolute necessitie ; ficōe lou hōe est constreine 〈◊〉 faire asc ' chose le q̄l ne poit ꝑ asc ' voy avoi ● , nous disō q̄ il fist c ' 〈◊〉 fine force . et issint cest ꝑol est use ē perk. sect . . ē woodland & mantels case , ē plow f. . b. & ē eatons case cite en foxlys case ē le . re. f. . a. finors . finors sont ceux que purifiont or & argent , & eux sever per feu & eau del metals plus base & vile ; & pur ceo en le statute de h. . c. . sont auxy appels parters . fire-bote . fire-bote est necessary boys p̄ arder , quel , ꝑ le common ley , lessee pur ans ou pur vie poit prender en son terre , nient obstant il ne soit expresse en son lease ; & nient obstant il soit un lease ꝑ parol tantum sans fait : mes sil prist pluis que besoigne , il serra punie en waste . first-fruits . first-fruits ( primitiae ) sont les revenues de chescun spiritual benefice pur un an , queux ē auncient temps fueront dones al pape , mes ꝑ le statute de h . c. . sont ore transferres al roy. f ● edwite fledwite est , quietum esse de amerciamentis , cū quis utlagatus fugitivus veniat ad pacem domini regis sponte vel licenciatus . flemeswite . flemeswite est , quod habeatis catalla five amerciam̄ hominis vestri fugitivi . fletwit . fletwit , ou flitwit , est , quietum esse de contententione & cōvictis , & quod habeatis placitum inde in curia vestra , & amerciamenta ; car flit anglice est treason gallice . floatsam . floatsam , ou flotson est , quant un niefe est submerge ou auterment perish , & les biens float sur la mere , & ils sont dones al seigniour admiral ꝑ ses letters patents . veies coke lib. . fol. . fold , fould-course . fold , fould-course , en latine falda , & faldae cursus , est com̄on ꝑ barbits , vid. shack. & co. ent. , . co. . rep. . cro. rep. spooner & day . folkmoot . folkmoot signifie ( selon lambert en son exposition del saxon parols ) deux kinds del courts ; l'un ore appel le county court , l' auter le sheriffs tourne . et en londres il signifie a cest jour celebrem ex omni civitate conventum . stows survey . footgeld . footgeld est un amerciam̄t p̄ nient prendrant hors les bals des pees d'graūd chiens ē l' forrest , p̄ que veies expeditate : et destr̄ quit de footgeld est un priviledge de aver chiēs irregular deins l' forrest sans paine ou controlle crompt . jurisd . fol. . manwood , part . . pag. . forcible entry . forcible entry est un violent actual entrie en meason ou terre ; ou prend distres oves armes , soit q̄ il offer violence ou nemy . west , par . . symb. tit . inditement , sect. . forest , on forrest . forest est un lieu priviu ledge ꝑ authoritie royal , ou per prescription , pur le peaceable abode & nourishment del beasts , ou oiseaux del forrest , pur le disport del roy : pur q̄x ont este en antient temps certaine peculiar officers , leyes & orders , part de q̄x appearont en le graund charter de le forrest . forester . forest ● r est un officer del forest , que est jure pur ꝑserve le vert & venison del forest , pur attend ● r sur les feres deins son bayliwick ● eux veiller & safement garde ● per jour & per nuict pur attacher touts offendors la ou en vert ou en venison , & eux de pretenter as courts del forest , al intent ꝑ poient estre la punies solonque lour delicts . forfeiture del marriage . forfeiture del marriage fuit un brief que gisoit p̄ le seignior en chivalry vers son gard , ꝑ refuse un convenable marriage tender a luy per son seignior , & deins age marrie un auter sans l' assent son seignior . et veies pur ceo fitzh . n. b. fol. . g. &c. forger des fauxs faits . forger des faux faits venust de ꝑol francois forger , que signifie fabricare , framer & fashioner , come un forgeron son overage sur le enclume . et est use in nostre ley , pur l' fraudulent feasance & publisher de faux faits al prejudice del droit dun auter . fitz. en son n. b. fol. . b. c. dit que brief d' disceit gist vers celuy que issint forge ascun fait . forjudger . forjudger est un judgment done en un brief de mesne , port per un tenant envers le mesne seignior , ꝑ doit acquiter le tenant des services demandes per le seignior paramount , de que le tenem̄t est tenus , & le mesne ne voile appear ; donques judgment serra done , que l' mesne sn̄r perdra son seigniorie , & que le tenant dillonques tiendra del seignior paramount per tiels services come le mesne tenoit devant , & serroit discharge del services q̄ux il rendoit al mesne , per le statute de west . . cap. . q̄ est appel un forjudger . et auxy si un attorney ou auter officer en ascun court soite ouste & prohibite de user ceo , il est dit destre forjudge le court. formedon . formedon est un brief , & gist lou tenant en le taile infeoffa un estrang ' , ou est disseisie , & devie ; son heire avera brief de formedon p̄ recover le terre . mes sont trois briefs ● e formedon . un est en le discender , & ceo est en le case avantdit . auxy si un done terre en le taile , & pur default de issue le remainder a un aut ' en le taile , & que pur default de tlel issue le terre revertera al donor ; si le primer tenant en le taile ● evie sans issue , cesty en le remainder avera un brief de formedon en le remainder : mes si le tenant en le taile devie sans issue , & cestuy en le remainder auxy devie sans issue , donques l'donor ou ses heires avera un formedon en le reverter . forrein . forrein est un parol adjective use , & joyne ove divers substantives : come forrein matter triable en aut ' countie , pl. cor. . ou matt ' fait en auter countie , kitch . fol. . forrein plee est un refusal del judge come incompetent , pur ceo que le matter dependant ne fuit deins ses limits , kitch . fol. . & anno h. . cap. . & an. ejusdem c. , & . forrein respons est tiel respons que nest triable en le countie ou il est fait , anno h. . cap. . forrein service est tiel service ꝑ q̄ un mesne sn̄r tient ouster ● un aut ' dehors le circuit ● son fee demesn̄ , bro. tit . tenures , fol. . num . , & . & kitch . fol. . ou auterm̄t ceo que un tenant performe ou a son sn̄r demesne , ou al sn̄r paramount hors del fee. car de tiels services bract. lib. . cap. . num . . issint parle : item sunt quaedam serv. quae dicuntur forinseca , quamvis sunt in charta de feoffamento expressa & nominata , & quae ideo dici possunt forinseca , quia pertinent ad dom. regem , & non ad dominum capitalem , nisi cum in propria persona profect ' fuerit in servitio , vel nisi cum pro serv. suo satisfecerit domino regi quocunque modo ; & fiunt in certis temporibus , cum casus & necessitas evenerit , & varia nomina habent & diversa : quandoque enim nominatur forinesca , large sumpto vocabulo , quod servitium domini regis , quandoque scutagium , quandoq ●● servitium domini regis ; & ideo forinsecum dici potest , quia fit & capitur foris , five extra servitium quod fit domino capitali . veies bro. tenures , . forraine service semble destre service de chivaler , ou escuage non certain , perkins , sect . . forrein attachment est un attachment des biens de forreiners deins ascun franchise ou citie , p̄ le satisfaction de asc ' citizen a que le dit forreiner doit argent . forreine apposer est un officer en le exchequer , a que touts viscounts & balliffs viendront , ꝑ luy destre appose de lour greene wax : et de ceo il treit un charge sut le viscount ou balliff al clerk del pipe. forsechoke . forsechoke semble de signifier fi moult come forsaken , en nostre modern̄ language : il est especialment use anno ed. . c. unico , p̄ tr̄es ou tenements seisie ꝑ le sn̄r , p̄ defalt del services due a son tenant , & issint quiete ten̄ & possesse passe le an & jour . forestaller . forestaller , est celuy que achat ' blees , avers , ou aut ' merchandize quecunque , ꝑ le chimin qn̄t il vient al markets , faires ou tiels semble lieux destre vende , al entent a vender ceo al un pluis hault & chare price , en prejudice de le commonweale & gents , &c. le penaltie p̄ ceux queux sont convict de ceo est , le primer temps , imprisonment p̄ deux moys , & ꝑ ● de le value del chose vende . le second temps , imprisonment per le space de demy an , & per ● de double value des biens , &c. le tierce temps , imprisonment durant le pleasure le roy , & judgem̄t del pillory , & forfeit ' 〈◊〉 touts ses biens & chateux . veies le statute ed. . cap. . forestall . forestall est , quietum esse de amerciamentis & catal ' arrestatis infra terram vestram , & amerciam̄ta inde provenientia . founder . founder est celuy que use l'art ● l amolir ou dissolver metals , & de fair ascuu choses d' eux per jecter en molds . semble daver son nosme del latine parol fandere , & est mention en le stat. de r. . cap. . fourcher . fourcher est un devise use a delayer l' plaintiff ou demandant en un suit envers deux , q̄ux a ceo ne sont 〈◊〉 respon ● tanque ils ambideux appeare , & l'appearance ou elsoin̄● ū de eux voile excuser le defalt del aut ' a cel jour ; & eux agrea , que l'un de eux solement serra essoine ou appearera al un jour , & pur default del appearance del aut ' , avoit jour ouster de appearer , & l' aut ' ꝑtie avera mesme le jour ; & a c ' jour lauter voile appearer ou estre essoine , & cestuy q' devant ap caro ● t ou fuit essoin̄ ne voile donques appear̄ , p̄ ceo que il esperoit daver aut ' jour ꝑ le adjournm̄t del partie q' donques appiert ou est essoine . ceo est appel fou ● cher , & en ascuns cases le mischiefe ꝑ ceo est remedie ꝑ le statute de gloucest . cap. . & westm . . cap. . franchise . franchise est un ꝑol francois , & signifie ē nr̄e ley 〈◊〉 im̄unitie ou exemption ● l ordinarie jurisdiction ; cōe p̄ un corporation de ten̄ pleas deins eux mesmes a tiel value , &c. veies de ceo en - vieux n. b. fol. . a , b. franches royal. franches royal est , lou le roy grant al un & a ses heires que ils serr̄ quit de toln̄ , vel hujusmodi . frank-almoigne . frank-almoigne est , lou en antient temps terres fueront dones a un abbot & son covent , ou a un deane & a le chapt ' , & a lour successors , en pure & ꝑpetual almoigne , sans expresser ascun service certain̄ ; ceo est frank-almoigne ; & ils sont tenus devant dieu , de fair oraisons & prayers pur la donor & ces helres , & pur ceo ils ne ferront fealtie : & si tiels que ont terres en frank-almoigne ne font ascun prayers ne divine service pur les ames le donors , ils ne serront ꝑ les donors a ceo compelles , mes les donors poyent complaine al ordinarie , luy preyant que tiel negligence ne soit pluis avant , & l'ordinarie 〈◊〉 droit c ' doit faire . mes si ū abbe , &c. tiēt tr̄s de son sn̄r pur certa ● n̄ divine service destr̄ fait , cōe 〈◊〉 chāter chesc ' venderdie ū masse , ou de faire auter chose certain̄ ; si tiel divine service ne soit fait , le sn̄r poit distrein , & en tiel case l' abbe doit faire a le sn̄r fealtie : & p̄ ceo il nest pas dit tēure en frank-almoigne , mes tenure per divine service ; car nul poit tener en frank-almoigne , si soit expresse ascun certain service . franke bank. franke banke sont copihold-terres que le feme , esteant espouse un virgin , ad apres le mort sa baron p̄ sa dower , kitch . fol. . bract. lib. . tract . . cap. . num . . ad ceux ꝑols ; consuetudo est in partibus illis , quod uxores maritorum defunctorum habeant . francum bancum de terris sockmannorum , & teneant nomine dotis . fitz. appel c ' un custome , ꝑ q̄ en ascuns cities le feme avera touts les terres de sa baron p̄ sa dower , n. b. fol. . veies plow . fol. . franke chase . franke chase est un franchise , ꝑ q̄ touts homes ayant tr̄e deins cel cōpasse sōt ꝓhibit de succider le bois , ou discover , &c. sans le view del forrester , niēt obstant q̄ soit sō demesn̄ . crom. jaris . f. . frank fee. tener in frank fee est , a ten̄ en fee-simple tr̄s pleadable a la common ley , & nient en ancient demesne . frank ley. franke ley : veies crom just . de peace , f. . ou vous poys trove q̄ c ' est per le contrarie : car celuy q̄ p̄ un offence , come conspiracie , perde son frank ley , est dit de ca ● en ceux males . . que il ne unques serra impanel fur asc ' jurie ou assise , ou auterm̄t use en disant asc ' voiertie : auxy sil ad asc ' chose a faire en le court le roy , il ne ceo ven̄a en person , mes covient a ● esign̄ son atturnie : . ses terres , biens & chateux sont destre seise en les maines le roy , & ses terres serroint estreape , ses arbres radicate , & son corps commise al prison . franke marriage . franke marriage est , qn̄t un home seisie de terre en fee-simple dōe ceo al aut ' home & sa feme , q̄ est file , soer , ou auterment de kin al donor , in frank-marriage , per vertue de queux parols ils ont un estate en special taile , & tiendr̄ le terre del donor quitte 〈◊〉 touts man̄ers des services , tanque le quart degree soit passe , accountant eux mesmes ē l'prim̄ degree ; fi non fealtie , queux ils serront , ● ur ceo q̄ est incident a touts tenures , sorsque frankalmoigne . et tiel done poit estre fait cybien apres marriage solemnize , come devant . et home poit done ter̄s a son fits en frank marriage , cybien come a son file , per le opinion de fitzherbert en son br̄e de champerty , h. mes il appiert auterment en littleon , & en broke , tit . frank-marriage , pla . . et issint il fuit tenus clere en greys inne en lent , an. . el. per m. rhodes , donques lector la. frank-plege . frank-plege signifie un plege ou suretie pur frank homes , solonque le ancient custom d' angleterre , pur preservation del publique paix . veies le stat. pur vieu de frank-plege , anno ed. . & veies vieu de frank-plege . frank-tenement . frank-tenement est un estate que home ad en terr̄s ou tenements , ou profit a prender en fee-simple , taile , p̄ terme de son vie demesne ou daut ' vie , en dower , ou ꝑ le curte ●● e d' angleterre : & south ceo il nest frank tenemente ; car il que ad estate p̄ ans , ou tient a vol ' , nad asc ' frank-tenement , mes ils sont appels chatels . et de frank-tenement il y ad deux sorts , viz. frank-tenement en fait , & frank-tenement en ley. frank-tenement en fait est , q̄nt un home ad entre de terres ou tenements , & est seisie de ceo realment & actualment . sicome le pere seisie de terres ou tenements en fee-simple devie , & son fits enter en eux come heir a son pere , donques il ad ū frank-tenement en fait ꝑ son entrie . frank-tenement in ley est , qn̄t terres ou tenements sont discendus al un home , & il poit enter en eux quant a luy pleist , mes nad unc ' fait son entrie en fait : come en le case avantdit , si le pere , esteant seisie de terr̄s en fee , devie seisie , & ils discend a son fits , mes l' fits and unc ' enter en fait en eux ; ore devant son entrie il ad un frank-tenement en ley. french-man . french man fuit use pur chescun alien . bracton , lib. . tract . . cap. . veies engleshery . frendless man. frendless man fuit le veil saxon ꝑrol p̄ luy que nous appel ' ū o ● tlaw ; nam forisfecit amicos suos . bracton , lib. . tract . . cap. . fresh force . fresh force ( frisca forcia ) est un force comise deins asc ' citie ou borough , come per disseisin , abatement , intrusion , ou deforcement des ascuns terres ou tenements deins le dit citie ou borough . pur redresser de q̄l tort , cestui q , droit ad poit p̄ l'usage del dit citie ou borough aver son remedie sans brief , per un assise ou bill ● e fresh force port deins jours apres le force cōmise , ou title a luy accrue . en quel action il poit faire son protestation de suer en le nature ● quel brief que il voit . et veies p̄ ceo matter fitzh . n. b. f. . c. & vi ● ux n. b. f. . a. fresh suit. fresh suit est , quant un home est robbe , & le partie issint robbe pursua le felon immediatement , & luy prist ove le manner , ou auterment , & donques port ū appeale envers luy , & luy convince del felonie ꝑ verdict ; le quel chose esteant enquire pur le roy & trove , le partie robbe avera restitution de ses bi ● ns arere . item il poit este dit que le partie fait fresh suit , nient obstant que il ne prist le felon presentment , mes que il soit demy an ou ū an apres le robberie fait devant que il soit prise ; si soit issint que le partie robbe fait tant q̄ en luy est per diligent enquirie & search , đ luy prender ; nient obstant que il est prise ꝑ un auter home , uncore c'serra dit fresh suit. fresh suit est auxy , quant le sn̄r vient pur distreine pur rent ou service , & l'owner des beasts fait rescous , & enchase eux en auters terres que nest tenus del seignior , & le seignior ensue ꝑsentm̄nt , & reprist eux . et issint en auter semblables cases . friperer . friperer est un parol use en le statute de jac. c. . pur un sort des brokers . et semble destre un parol prise del francois fripier , interpolar ; & p̄ ceo un friperer est un que use de polir vieux vestiments p̄ vender arere . frumgyld . frumgyld est un veil saxon parol , que signifie le prime payment fait al kindred de un person occise , en recompence de son murder . l. l. edmundi c. ult . fugitives goods . fugitives goods sont les ꝓper goods de luy que sue sur felonle , le quel , apres le flight loyalm̄t trove , apꝑtein a roy. coke , vol. . f. . b. g. gable . gable , gablum , est en anciēt records un vieux ꝑol ꝑ signifie ū rent , dutie , custome , ou service yield ou fait al roy ou asc ' auter sn̄r . veies le com̄ent in littl. f. . a. gager de deliverance . gager de deliverance est , lou un sua replevin de biens prise , mes il n'ad deliverie des biens , & l'auter avowa , & le plaintiff monstra q'le defendant est uncor̄ possesse des biens , &c. & pria q' defendant gagera deliverance ; donques il mittera eins suretie ou plege pur le redeliverances , & un brief issera al viscount pur redeliverer les biens , &c. mes si home claime propertie , il ne gagera deliverance . auxy sil dit que l'avers sont morts en le pound , il ne gagera , &c. auxy home ne gagera jammes l'deliverance avant q̄ ils soient a issue , ou demurrer en ley , ut dicitur . gainage . gainage ( wainagium ) semble de vener del parol francois gaignage , id est , questus sive lucrum ; mes en nostre ley il signifie le profit plus ꝓperment que venust del tillage del tr̄e . et p̄ ceo en le statute 〈◊〉 mag. chart. c. . est enact , que un villain serra amerce salvo wainagio suo ; & en west . . c. . save son gainage ; & c. . est enact , que celuy q̄ deforce asc ' del deliverance des avers per replevin , rendra al plaintiff le double des dam̄ages queux il ad receive de ses avers , ou de son gainage disturbe , &c. et ꝑ le statute de districtione scaccaria falt en h. . est enact , que nul home de religion ou aut ' serroit distreine per les avers que gaine son terre . galli-halpens . galli-halpens fueront certain coine ꝓhibit ꝑ le stat. anno h. . c. . gaole . gaole , ou gayle , venust de parol francois geole , id est , caveola , mes metaphorice est use pur un prison . et de ceo le gardian del prison est appel un gaoler ou gayler . garbe . garbe venust del francois garbe ou gerbe , id est , fascis . cest parol est use en le vieux stat. appel charta de foresta c. . lou herbas en le latine est , translate garbe en anglois . garble . garble est de sorter & selecter le bone chose de le male ; come le garbling de bow-staves , anno r. . c. . & le garbling 〈◊〉 spice est riens auter forsque 〈◊〉 purifie ceo del drosse ove q̄ il est mixe . veies de ceo a large en le statute jac. c. . garde . gard est , quant un enfant , quel ancestor tient per service de chivalri , est en le gard & custodie de le seignior de que ils fueront tenus . et si le tenant tient de divers seigniors divers tr̄es , celuy seignior de que il tient ꝑ prioritie , cestascavoire , per le pluis ancient tenure , avera le gard : mes fi un tenure soit auxy antient q̄ l'auter , donques celuy q̄ primes gain̄ le gard de le corps gardera ceo : mes chescun seignior avera le gard del tr̄e que est tenus de luy . et si le tenant tient ascun tr̄e del roy en chief , le roy per son prerogative avera le gard del corps , & de tout le tr̄e que est tenus de luy , & de chescun auter seignior . auxy sont divers briefs de gard. un est brief de droit de gard , & gist lou le tenant devie , son heire deins age , & un estranger entra en le terre , & happa d'aver le gard le corps de l' enfant . brief 〈◊〉 ejectment de gard gist , lou home est ouste de le gard de terre , sans le corps ● l'enfant . brief de ravishment de gard gist , lou le corps est prise 〈◊〉 luy solement , & nient le terre . mes veies le stat. car. . cap. . pur abolishing le court del wards , &c. gardeine . gardein ou wardein plus ꝓperment est celuy que ad le gard ou custodie d'un heire , & de son tr̄e tenus ꝑ service de chivaltie , ou d'un d'eux , a son use demesne , durant le nonage del heire ; & deins cest temps ad le bestowing del cor ● s del heire ; en marriage al son vol ' , sans disparagement . et de gardeins il y ad deux sorts ; nosmem̄● , gardein en droit , & gardein en fait . gardein en droit est celuy que ꝑ reason de son seigniorie est seisie del gardship ou custodie del terre & del heire , durant le nonage del heir̄ . gardein en fait est , lou le seigniour apres son seisin , come avantdit , granta per fait , ou sans fait , le gardship del terre , ou del heire , ou de ambideux , a un auter , ꝑforce de quel grant le grantee est en possession : le grantee est appel gardein en fait . et cest gardein en fait poit grāt le heir̄ al aut ' auxy : mes cest auter nest ꝓperment appel gardein en fait , mes grantee del gardein en droit solement . mes le gardein en socage ad le profit solement ad use del heire , jesque il ad accomplish l'age de ans , & rendr ' pur ceo account al heire . vide pluis de ceo , littl. lib. . cap. , & . & stamford . sur statute de prerogat . cap. , , & . gardeins del esglise . gardeins del esglise sont officers elects en chescun paroisse , pur aver l' care & custodie des biens del esglise ; & ils poient aver un action p̄ les biens del esglise & divers auters chose ● ils poient faire p̄ l'benefit l'esglise & ꝑl statute de el. cap. . ils doient joinder ovesque les surveyors en le feasance des rates & auters provisions pur les povres del paroisse . gardein des spiritualties . gardein des spiritualties per la general ley est le deane & chapter del diocesse , si ne soit un custome q̄ l' archivesque del province soit le gardein sede vacante ; son office est a tener court , prover testamēts , granter administrations & a supplie le lieu del evesque . garnishment . garnishment : sicome un action 〈◊〉 detinue des charters est port vers un , & le defendant dit , que les charters fueront deliver a luy per le plaintife & per un auter sur certain conditionss . & prie que l' auter soit garnie de pleader ove le plaintife , si les conditions sont perimple , ou nemy , & sur ceo un brief de scire facias issera vers luy ; ceo est appel garnishment : & l'auter quant il vient eins pledera ove le plaintife ; & c ' est appel enterpleader . garranty . garranty est qn̄t un est lie al aut ' que ad terre , de garrant le m̄ a luy ; le q'l poit estr̄ ꝑ deux meanes : cestasea voir̄ per act del ley , come si un & ses ancestors out tenus terre del auter & ses ancestors per temps dont memorie ne court per homage , que est appelle homage auncestrel : ou per l' act del partie , que grant per fait ou fine al tenant del terre de garrant ceo a luy ; sur quel si le tenant soit impleade per luy que doit garrant ou ses heires , le tenant barra le demandant per pleader de garranty vers luy , que est appel rebutter , ou si soit emplede per auter en action en que il poit vouch , il vouchera cestuy que garrant ' , ou ses heires , & si le plaintiff recover , le tenant recovera en value vers le vouchee . garrantie est en trois manners ; cestascavoir̄ , garrantie lineal , garranty collateral , & que commence per disseisin , garrantie lineal est , lou home seisie en fee , ou en tail fait feoffment a un auter , & oblige luy & ses heires a garrantie , & ad issue fitz , & morust , & le garrantie discend a son fitz . car si nul fait ove garrantie ust esse fait , donques le droit des terres disceuderoit al fitz , come heire a son pere , & il conveicroit le discent de le pere a le fitz . mes si tenant en le taile discontinua le taile , & ad issue , & devie , & le uncle del issue relessa al discontinuee ove garrantie , &c. & morust sans issue ; ceo est collateral garrantie al issue en le tail , p̄ ceo que le garrantie discend sur le issue , le quel ne poit soy conveyer a le taile ꝑ le mean de son uncle . et en chescun case lou hōe demanda terres en fee-tail ꝑ brief de formedon , si asc ' ancestor del issue en le taile fait un garrantie , & cestuy q' sue le brief de formedon , per possibilitie ● l matt ' q' puissoit estre fait , convey a luy title ꝑ force del son done q' fist le garrantie , &c. ceo est donq̄s un lineal garrantie , ꝑ quel le issue en le taile ne serra barre , sinon que il ad assets a luy descendus en fee-simple . mes si il ne poit ꝑ asc ' possibilitie convey a luy title ꝑ force ● l don̄ 〈◊〉 celuy que fist le garrantie , dōques ceo est un collateral garrantie , & per la le issue ē le taile serra barre sans ascuns assets . et le cause que tiel collateral garrantie est un barre al issue en le taile est , p̄ ceo que touts garranties , devant le statute 〈◊〉 gloucester , q'ux discendant a ceux queux sont heir̄s a ceux que fesoient les garranties , fueront barres a mesm̄ les heir̄s a demander asc ' terres , forsprise les garranties que cōmence per disseisin ; & pur ceo que le dit statute ad ordaine , que le garrantie del pere ne serra barre a son fits p̄ les tr̄s que veigne del heritage le mere , ne le garrantie de le mere les serra barre al fits pur les terres que veigne del heritage del pere ; & le statute de hen. . cap. . & nul de les statutes , ad ordain̄ ascun remedie encounter asc ' auter collateral garrantie ; ideo tiel garrantie est uncor̄ en sa force , & serra barre al issue en le raile , come il fuit devant le statute . auxy il convient que touts garranties , per que ascun heire serra barre , discend per course del common ley a celuy que est heire a garrantor ; ou auterment il ne serra barre : car si le tenant en le tail des terres en borough english , lou le puisne fits inheritera ꝑ le custome , discontinua le taile , & ad issue deux fits , & le uncle relessa al discoctinuee ove garrantie , & devie , & le puisne fits port formeaon ; uncore il ne serra barre per t ● el garrantie , causa qua supra . auxy si ascun home fait un fait ove garrantie , ꝑ quel son heir serrolte barre , & celuy que sist le garrantie soit att ● in t de felonie ; son heire ne serra barre per tiel garrantie , p̄ ceo que tiel garrātie , ne puit discender sur luy , le sanke esteant corrupt . garrantie commenceant per disseisin est , si le fits purchase terres ; & lessa les terres a son pere pur ans , & le pere per son fait c ' de enfeoffa un estrang ' & oblige luy & ses heires a garrantie , & le pere devie , per quel le garrantie discend al fits ; uncore cest garrantie ne barrera my le fits , mes le fits bien poit ent ' nient obstant , pur ceo que cest garrantie commensast per disseisin , quant le pere fist le feoffem̄t , que fuit un disseisin al fits . et come est dit de pere , issint poit estre dit de chesc ' aut ' ancestor . et mesm̄ le ley est , si l' ancestor soit tenant per elegit , ou per statute-merchant , & fait ascun feoffement ove garrantie , tiels garranties ne serront barres , pur ceo que ils commenceont per disseisin . garrantie des charters . garrantie des charters est un brief quel gist lou asc ' fait est fait que comprehende clause de garrantie , cestascavoir̄ , dedi ou concessi , ou cest parol warrantizabo ; & si le tenant soit implead per un estrang ' en assise ou tiel acc ' lou il ne poit vouch a garrantie , donques il avera cest br̄e vers son feoffor ou son heir̄ ; & si le terre soit recover vers luy , il recovera tant del terre en value vers cestuy que fist le garrantie . mes cest brief coviēt estr̄ sue pendant le primer brief vers luy , auterment il ad perde son advantage . auxy sur garrantie en ley , come sur homage auncestrel , ou sur rent reserve sur lease de vie ou done en le taile , home avera brief de garrantie de charters , mes nemy sur escuage . garrantie del jour . garrantie del jour . veies p̄ ceo warrantia diel . gavelate . gavelate est un special & antient kind de cessavit , use en kent , lou le custom̄ de gavelkind continue , per quel le tenant forfeitera fes terres & tenements al seigniour de que ils font tenus , sil deteine de son seignior ses due rents & services , solonque cest mann̄ : si ascun tenant en gavelkind retain sa rent & ses services de le tenement que jl tient de son seigniour , querge le seigniour pur agarde de sa court , de trois semaign̄s en trois semaignes , de trover distresse sur cel tenement iesque a le quart court , a touts foits per testmoignes . et si deins cel temps ne trove distresse en cel tenement , per queux il puisse son tenant justifier , donques a la quart court soit agarde , que il preigne cel tenem̄t en sa main̄ en nosm̄ de distresse , auxy come fuit boefe ou vache , & le tient un an & un jour en sa maine sans mainoverer : deins quel terme si le tenant vient , & ren ● ses arrearages , & fait reasonable amends de la reteigner , adonque eyt & enjoy sont tenement , sicome ses auncestors & luy avant tiendront : & sil ne vient devant l' an & le jour passe , donque aler ' le seigniour al prochein county-court suivant ove testmoignes de sa court , & face la pronuncer cel processe pur testmoignage aver ; & ꝑ agard de sa court ( apres ceo county tenus ) ent ' & maineovera en cels terres & tenements sicome en son demesne . et si le tenant vient apres , & voile re-aver ses tenements , & tener sicome il fist devant , face agree al seigniour , si come il est antientment dir , neghesith selde , & neghesith gelde , & v. li. for the were , er he become healder . vide de ceo henrie . fitzberlert , cessavit . & statute edward . de gavelet en l ● ido ● , en le collection del statutes , london . matter tendant mult a cei 〈◊〉 que per cel parol cave ● t le seigniour avera le terre pur cesser le tenant . et veies westmonast . . cap. . que done cessavit . il y ad ascuns copies que ad le primer verse issint escript ; nisith yelde , & nisith gelde : et auters issint ; nigesith yeld , & nighesith geld . mes ceux ne differ en signification . auters copies ōnt ceo solonque cest sort ; nigondsith seld , & nigonth geld : cest adire , payera il novies foits , & novies foites repay . gavel-kinde . gavel-kinde est un custome annexe & currant ove terres en kent , appel gacel-kinde-terres , tenus en antient socage tenure . et est pense ꝑ les erudite en antiquities , destre appel gavel-kinde de give all kinne , cest adire , a touts les kinne en un line , accordant come est use enter les germans , de que nous anglois , & especialment de kent , venomus . ou est appel gavel-kinde de give all kinde , cest adire , al touts les males , car kinde en dutch signifie un male. et divers auters semble conjectures sont fait touchant gavel-kinde , le quel jeo omit . les pluis usual customes sont , que le terre est dividable enter les heires-males ; & que le heire al age de ans poit done & ven ● sa terre ; & serra inherit ' , coment son perre soit attaint & pendue pur felonie ; & sa feme serra endowe del demie del terre dont son baron devie seisie ; & le baron serra tenant per le courtesie del demie , coment ne avoit issue per sa feme ; mes l'estate del baron & feme cease per lour second marriage . et divers auters customes sont uses en kent de terres en gavel-kinde , pur queux veyes lambert's perambulation de kent . gawgeour . gawgeour est un officer ● l roy defigne de searcher touts tuns , hogsheads , pipes , barrels & tertians de vine , oyle , honey , butter , & a don̄ eux un note 〈◊〉 allowance devant ils sont vendus en ascun leiu . et p̄ ceo que est marke est un circle fait ove un instrument de ferre pur cel purpose , il semble q̄ il prist son nosme de ceo . de cest office la ad este fait plusors statutes : le primer est an. e. . cap. . & les auters sont r. . cap. . h. . cap. . h. . cap. . r. . cap. . & h. . cap. . gersuma . gersuma est un obsolete parol , pur un fine ou summe d' argent ; il est sovent trove en veil records . veies sir hen. spel. glossarium . gild. gild , alias geld , ad divers significations : come ascun foits un tribute ; auter foits un amerciament ; tiercem̄t , un fraternitie ou companie combine ensemble per orders & leys fait in t ' eux mesmes ove le congee le roy. cambden cita plusors antiquities per que il appiert de signifier un tribute ou tax ; come pag. , , , , . crompton , en ses jurisdictions , f. . monstre ceo destre un amerciament , come footgeld ; uncore fol. . il dit , destre quit de touts manners de gelds est , destre discharge de touts manners de prestations destre fait pur le prisure de garbes de corne , ● juvene barbits , & de lane , al use del forresters . auxy cambden , pag. . dividant suffolk en trois parts , appel le primer gildable , p̄ ceo que tribute est de ceo collect . et les statutes anno edw. . stat. . c. . & anno hen. . cap. . usont gildable en m̄ le sense ; & issint stat. anno h. . cap. . de ceo monsieur lambert verbo contubernalis est ꝑswade que l' common ꝑol gild ou gild hall preceda , esteant un fraternitie ou communaltie de homes aggregated en un combination , supportant lour common charge ꝑ un mutual contribution . et en le reg. orig. f. . b. la est gildam mercatoriam , que semble destre un certaine libertie ou privilege apꝑtinent al merchants , ꝑ que ils sont enable de tener certain plees de terre deins lour precincts demesne . cest ꝑol gilds ou guilde est issint use anno e. . c. . & an. r. . c. . et guildhalda tentonicorum est use p̄ le fraternitie de easterling merchants en londres appel le still-yard , anno h. . c. . veies coke , l. . f. . gisarms . gisarms fuit un certeine weapon , mention e. . stat. . c. . fleta escrie le m̄ sisarmes l. . c. . glebe . glebe , sōt les terrs de queux un rector ou viccar est seisie in jure ecclesiae . gors . gors ( gurges ) est un estange ou gulfe d'eau p̄ le p̄server des pessons , per le grant de que le soile m̄ passer̄ ; & un praecipe quod reddat gist de ceo , come est a veir en e. . . b. & e. . . a. & f. n. b. . h. granage . granage , duty en londres , viz. le th . part de salt import per un alien , due al mayor , dyer , . grand cape . grand cape . veies de ceo apres en le title petit cape . grand distress . grand distress . veies de ceo devant en le title distress . grand serjeanty . grand serjeantie est , lou un home tient del roy certaine terres ꝑ le service de porter son banner ou launce , ou amesner son hoste , ou destre son carver ou butler a son coronm̄t , & tiels semblables ; & ceo est la pluis digne service q̄ le tenant poit fair̄ , & p̄ ceo est appel grand serjeantie . mes petit serjeanty est , quant ū tient đ roy , rendant a luy annualm̄t un arc , un coteau , un launce , ou tiel semblable ; & ceo nest forsque socage en effect : mes hōe ne poit tener ē grand serjean●ie ne ꝑ petit serjeantie si non de roy. auxy si tenant ꝑ grand serjeantie morust , son heir , esteant đ plein age , payera al roy pur relief le value des tr̄es , oust ' les charges que il pay al roy , p̄ grād serjeanty : mes cestuy q' tient ꝑ escuage payera p̄ son rel ● ef forsque . c. s. ceux que sont en les marches de scotland , que tient del roy ꝑ cornage , ceo est , p̄ ventiler un cornu quant les scots entront angleterre , sont tenants ꝑ grand serjeantie . aux ' ou un home tient del roy p̄ trover un home en sa guerre deins le realm , c'est dit grand serjeantie , p̄ ceo que il est fait ꝑ corps d'ū home : et si le tenant ne poit trover home de faire ceo , il est tenus de faire ceo luy mesme . mes veies le stat. car. . c. . ꝑ quel touts les tenures sent ore turne ē frank & common socage . gree. gree venust del francois parol ( g●e ) beneplacitum ; & signifie en nostre ley contentment ou satisfaction : come en le statute r. . c. . de faire gree as parties est a doner eux contentment ou satisfaction pur un offence as eux fait . green hew . green hew est tout un ove vert , cōeappiert ꝑ manwood en ses leys del forrest , c . sect . . et p̄● c veies virt. green wax . green wax est un parol use en les statutes 〈◊〉 e. . c. . & h. . c. . & sign fie les estreats des issues , fines & amerciaments en l' eschequer , & bailes hors as viscounts south le seale del court , destre ꝑ eux levies en lour several counties . grithbreach . grithbreach , hoc est , pax domini regis fracta ; quia grith anglice , pax latine . gule de august . gule de august est le prim̄ jour ou les calends del august , q̄ en le temps e. . & e. . fuit usualment appel de gule de august , come appiert ꝑ f. n. b. f. . l. & plowden com. f. . b. est le verie jour s. petri ad vineula ; & le reason pur que est appel le gule de august est conceive sur un historie recorde per durandus en son rationale divinorum , l. . c. . d'un miracle effect per le chaine de s. peter sur le file d'un quirine un tribune del rome , que ꝑ le baiser del dit chaine fuit cure des escrovel en sa gule ( gula . ) et veies hospin : de origine festorum , f. . b. gultwit . gvltwit est un amends pur trespasse , solonque saxton en son description del angleterre , c. . h. habeas corpus . habeas corpus est un br̄e le quel home endite d'asc ' trespasse devant justices del peace , ou en un court d'asc ' franchise , & sur son prisure esteant gist en prison pur m̄ , poit aver hors del banke le roy , ꝑ c ' d'amesner luy mesme la a ses costs demesne , & de respon ● le cause ley f. n. b. f. . h. l'order ● n ceo case est , primerment 〈◊〉 ꝓcurer un certiorari hors del chancerie , direct al dits justices , pur le remover del endictment ē le banke le roy ; & sur ceo de ꝓcurer cest bre al visc ' , de causer son corps destre amesne al un jour reg. judic . f. . ou vous poies trover plusors cases ē queux cest brief serra use . habeas corpora . habeas corpora est un br̄e que gist contre un jurie ou ascun d'eux que refusont de venur sur le venire facias , pur le trial d'un meistre port al issue . habendum . habendum est un parol de forme en un conveyance , al voyer intelligence de que est destre observe , que en chesc ' fait de conveyance la sont deux principal darts , le premisses & l' habendum . le office des premisses est , d' expresser le nosme del grauntor , le grantee , & le chose destre grauntee . l' office del habendum est , 〈◊〉 limitter l'estate , issint que le general implication del estate , que per construction del ley passa en les premisses , est ꝑ le habendum controlle & qualifie : sicōe en un lease a deux homes , habendum a l'un p̄ vie , ie remainder al auter pur vie , alter le gen̄al implication del joynt-tenancie en le franktenem̄t , que passera ꝑ les premisses , si l' habendum ad este omis . veies coke , l. . f. . habere facias seisinam . habere facias seisinam est un brief judicial que gist lou un ad recover certaine terres en court le roy ; donques il avera cest brief direct al viscount , luy commandment de done a luy seisin del terre , & ne serra retournable . habere facias visum . habere facias visum est un br̄e que gist en pluseurs cases , lou view est estre pris del tr̄es ou tenements ē question . veies . f. n. b. in indice , verbo view ; & br. l. . tra . . c. . half-bloud . half-bloud . veies demysank . demy seal . demy seal est un seal use ē le chācerie p̄ le sealer de ● commissions as delegates sur un appeal en un cause civil ou marine , come appiert ꝑ le stat. fait en eliz. c. . halymote . halymote est un court-baron , cōe appiert per manwood , ē ses forrest leys , c. . f. . a. et est appel halymote , cestascavoit , le concurse des tenāts d'un hall ou man̄or . hambling , ou hoxing des chiens . hambling , ou hoxing , ou hock-sinewing des chiens , sont antient t'mes del forrest p̄ le lawing des chiens , quant le custom̄ fuit , ( cōe appiert ꝑ manw. fo. leys , c. . sect . . ) ● couꝑ ou berluffer chiens ē lour jareds ; mes ore est use destre fait en lour pieds . de q̄ veies expeditate . hand-gun . hand-gun est un engine q̄ est ꝑhibite destre use & emport per le statute de h. . c. . et com't que un dagge fuit envent de tardife tēps , & puis le fesans del dit act , & nest conust ꝑ le nosm̄● hand-gun , mes ꝑ ū especial nosme ; uncore le carrying d'un dagge est deins le dit act , & comprehend deins le parol hand-gun . issint ou crosse-bowes sont ꝑhibite ꝑ le dit act , ꝑ ceo stone-bowes sont auxy prohibite . veies coke , . f. , . hangwit . hangwit est , quietum esse de latrone suspenso sine judicio , vel extra custodiam vestram evaso . hanper . hamper del chancerie , anno r. . c. . semble de signifier come fiscus originalment en latine . haque . haque est un petit hand-gun al longeur des trois quartiers d' un verge , & est mention ē le stat. 〈◊〉 h. . c. . & & e. . c. . la est aux ' parle d'un demy haque . haquebut . haquebut est un gunne mention en le stat. de & e. . c. . & est tout un ove un arquebuse . hariot . hariot est on deux sorts ; l'un hariot custome , l' auter hariot service . hariot service est mult fo ● t s expresse ē le grant d'un hōe ou ē son fait , que il tient ꝑ tiel service pur payer hariot al tēps 〈◊〉 son mort . et cest harior est payable apres le mort del tenant en fee simple . hariot custome est , lou hariots ont este payes tēps hors de memory ꝑ custome . et ceo poit este apres le mort ● l tenant p̄ vie , &c. mes a parler de ceo genera ● ment : hariot est le melieur beast ( soit il chival , boefe , ou vache ) que le tenant ad al temps de son mort . et ū distress poit estr̄ seisie ou pris p̄ ceo , soit il hariot service , ou hariot custome , al use del seignior de q̄ le tenāt tient , ꝑ son bailiff ou auters officers . mes de droit le seignior ne son officer ne doit prender hariot , devant que il soit present al ꝑehein court tenus apres le tenant est mort que tiel beast est due p̄ son ' hariot . haward . haward , ou hayward , est un officer designe en chescun ville ● estre le common herd del ville : & il est issint appel , ou pur ceo que un part de son office est pur gar ● er les hayes de terres enclose , issint que ils ne soient croppe ne enfringe ; ou pur ceo que il garde le grasse del parde & destruction des avers , issint que hay poit estre fait de ceo . il est un officer jurus en le court del seignior : pur que serement , veies kitch . fol. . haukers . haukers est un terme use en les statutes de h. . c. . & h. . cap. . pur tinkers quieux alont de lieu en lieu per le pais , & per color des letters patents le roy ou plachards achatont & vendont airain & peweter , & deceive les lieges le roy & en le poise & en le substance . heybote , ou hedgebote . heybote , ou hedgebote , est necessarie stuff pur fair̄ & amend haies , q̄ lessee pur ans ou p̄ vie de common droit poit prender sur le tr̄e a luy lesse , nient obstant il ne soit expresse en son lease , & nient obstant que il soit un lease ꝑ parol , sans escript . heybote auxy poit estre prise pur necessarie stuff pur fair̄ rakes , forks , & tiels sēbl ' instrum̄ts , ove queux hōes usōt ē somm̄ ꝑ tedder & fair̄ felne . et issint un lessee pur ans prist c ' , & fuist luy allow per son lessor , pluis tost , come jeo suppose , pur ceo que tiels instruments sont faits de slend subbois , que ꝑ le common ley , l'lessee p̄ ans poit succider & prender , come est avantdit . head-borow . head-borow est compound des deux parols heofed , id est , caput , & borhe , id est , pignus . issint que headborow , signifie le chiefe des frank-pledges en un decennarie deins un leet , ou celuy que avoit l'governance des eux q̄ sōt deins sō pledge demesne ; & il fuit appel headborough , ou borow-head , ou borough-holder , ou third-borow , ou tithing-man , ou chief-pledge , ou borow-elder , solōq . le diversite des dialects des divers lieus . et a ceo jour est ore appel un constable . head-silver . head-silver . veies com. fine . heireloome . heireloome est ascun parcel des utensils dū mease , que , ꝑ le custome del asc ' pais , esteant apperteināt al un mease pur certaine discents , ala ove le mease ( apres le mort del owner ) al heire , & nemy as executors . herbage . herbage est le fruit del terre provise per nature pur le bit ou bouch del cattel : mes il est com̄unem̄ use pur ū liberty a pascer le cattel d'un hom̄ en le fund del aut ' , come en le forrest , &c. crom. jurisd . fol. . heretico , ou haeretico comburendo . haeretico comburendo est un brief que gist vers luy que est un heretique , ceo est , que ayant estre un foits convince de heresie per l' evesque , & ayant c ' adjure , puis en ceo relapse arere , ou en ascun auter , & est sur ceo commise al lay poyar . et brit. lib. . cap. . dit , que per le common ley ceux persons queux seloniousment arseront auters blees ou auters measons , sorciers & sorcieresses , sodomites , & hereticks , serront combures & arses . cest brief est toll per stat. car. . hermitage , & hermite . hermite est un religious home que devote luy mesme a viver solitary ē ascū private lieu ē un esglise on mōastery , &c. & son liē est appel hermitage . et de ceo prohibition gist . nat. br. . g. hidage . hidage est quietum esse , si dominus rex talliaverit totam terrum ꝑ hidas. nota , que un hide de tr̄e est un entire plough-land . et cest kinde de taxing per hides fuit mult use en veile temps , cybien pur provision de armour , come payments de argent ; & c ' principalm̄t en les jours del roy etheldred , que en l' an de christ . qn̄t les danes pristera terre al sandwich en kent , tax tout son tr̄e ꝑ hides en cest man̄ ; que chesc ' hides 〈◊〉 tr̄e doiēt trover un nief furnish , & chesc ' hides doient trover un jacke & un sallet , pur le defence del realme . hoblers . hoblers sont mention en le statute de e. . stat. . cap. . estre tiels queux ꝑ lour tenure sont lies de maintainer un petit chival , pur doner notice ● l asc ' invasion ou aut ' ꝑil que happa ꝓchein al mere lou ils demurront . hoghenhine . hoghenhine est celuy que vient a un meason en l' guise dun guest , & la reposa l'tierce nuict , puis quel temps il est accompt un 〈◊〉 son familie en que meason il reposa ; & sil offend le peace l' roy , son host covient de respond p̄ luy . bract. lib. tract . . cap. . en l'leys 〈◊〉 roy edward , edite ꝑ monsieur lambert , il est appell ' agenhine , ou vous poyes lier pluis de cest meistre . homage . homage en nostre livres est deux-fold . cest adire , homagium ligeum , & c'est tant come ligeance , ●que bract. parle , l. . c. . f. . soli regi debetur sine dominio seu servitio . et lauter est homagium feudale , que ad son original ꝑ tenure . en fitz. nat. brev. f. . la est un brief p̄ respecture de cest darreine homage , que est due ꝑ reason del feud ou tenure . mes homagium ligeum est inherent & inseparable , & ne poit estre respectus . homagium ratione feodi sive tenurae est define destre un service que serra fait en tlel manner : le tenant en fee ou fee-taile que tient per homages , genulera sur ambideux genues discincte , & le seigniour serra seate , & tiendra les maines son tenant enter ses maines , & le tenant dire , jeo devigne vostre home de cest jour en avant de vie & de member , & de terrene honour , & a vous serra foyall & loyall , & foy vous portera des terres que jeo claime de ten ' de vous , salve le foy que jeo doy a nostre seigniour le roy : & donques le seigniour issint seant luy basera . com̄t fealtie serra fait , veies devant en fealtie . le seneschal le sen̄r poit p̄der fealty , mes nemy homage . veies le stat. car. . cap. . homage auncestrel . homage auncestrel est , lou un home & ses ancestors ● temps dont memorie ne courge ont tenus le terr̄● l seignior ꝑ homage . et si tiel sn̄r ad receive homage , il est ten ' 〈◊〉 acquiter le tenant vers touts auters seigniors paramount luy 〈◊〉 chescun man̄ service . et si l'tenant ad fait homage a son sn̄r , & soit implead , & vouche le seignior a garrantie ; le seigniour est tenus de luy garrant ' : & si le tenant perde , il recovera en value vers son seignior tant des terres que il avoit al temps de la voucher , ou unques puis . auxy si home que tient sont terre ꝑ homage auncestrel alien l' terr̄ en fee , donques l' alienee ferra homage a son seignior ; mes il ne tiendra per homage auncestrel , pur ceo que le continuance dei tenancie en ● e sanke ● l primer tenant est discontinue . homagio respectuando . homagio respectuando est un brief direct al escheatour , luy mandant pur deliver seisin al heire de ses terres a son plein age , coment que son homage ne soit fait . de que veies fitzh . n. b. fol. . a. homesoken . homesoken , ou hamesoken , est , quietum esse de amerciamentis de ingressu hospitiorum violenter & sine licentia , & contra pacem dom̄ regis : et quod teneatis placit ' de hm̄di transgres . facta in curia vestra , & in terris vestris . homicide , ou man-slaughter . homicide ou man-slaughter , est l' occider de un home seloniousment , sans malice perpense . il est auxy define issint , homicidium est hominis occisi ab homine facta . si autem a cane , bove , aut alia re fiat , non dicitur proprie homicid ' . dicitur homicidium ab homine & caedo , quasi hominis cadium . homine capto in withernamium . homine capto iu withernam . est un brief 〈◊〉 ꝑ ● der luy que ad prise ascun villaine ou nief , & trahe luy ou el hors ● l countie , issint que il ou el ne poit estre replevie accordant al ley. reg. orig. f. . a. homine replegiando . homine replegiando est un brief pur le bailer des homes hors del prison . en queux cases gist , & en queux nemy , veies fitz. n. b. f. . e. & veies hic tit. replevin , in fine . vide replevin . honour . honour , pret ' le gen̄al signification , est use specialm̄t p̄ le pluis noble sort de seignorie , de que auter inferiour seigniories ou mannors dependant per performance des customes & services , un ou auter , al ceux que sont seigniours de ceux . et semble que la sont nuls honours sorsque ceux que originalment apperteinont al roy ; uncore ils poient en ap̄s estre done en fee al noble-homes . le manner del creation de ceux honours poit en part estre collect hors des statutes de an. hen. . cap. . lou hamton-court est fait un honour ; & anno ejusd . cap. . & per que amp ● il & grafton sont auxy faits honours ; & anno ejusd . cap. . per que le roy ad poyar done a luy per ses letters patents de erecte quater several honours , westminster , kingston sur hull , s. osithes en essex , & dodington en barkshire . hornegeld . hornegeld est , quietum esse ● quadam consuetu ● exacta per tallagium ꝑ totam terram , de quacunque bestia cornuta . hors de son fee. hors de son fee est un exception pur avoider un action pur rent issuant hors del certein terre , ꝑ luy que pretend de estre sn̄r , ou pur quelque customs ou services ; car si il poit justifie que le terre est hors de son fee , le action morust . broke , hoc tit. , . & institut . . b. hospitallers . hospitallers ( hospitularii ) un order des chivalers primes foundue al jerusalem , & appelles joannites ou chivalers 〈◊〉 s. john de jerusalem ; & fueront appelles hospitallers , p̄ ceo que ils edifie un hospital al jerusalem p̄ l'interteinment de ceux que vignōt ● s touts parts ● l munde pur visiter les sacred lieus , & ils guardōt & defend tiels pilgrims en lour journies . le institution de cest order fuit primes allow ꝑ pape gelasius . entour l'an . et ils avoient mults privileges grantus as eux , come im̄unities ● l paym̄t des dismes , &c. et ꝑ ceux ils sont plusors foits mētions en nostre livres . trovers lour privileges as eux reserves in mag. char. cap. . et poies veier l'droit des subjects l' roy vindicate ● l usurpation de lour jurisdiction per l' s ● atute westm . . cap. . lour chief residence est ore en le isle de melita , usualment appel malta , done as eux per l'emperor charles le cinquiesm̄ : et p̄ ceo sont appels ore chivalers d'malta . touts les tetres en biens de ceux chivalers icy en angeleterre fueront mises en le disposition le roy , per le stat. de h. . cap. . hostler . hostler est un inholder . coke entr. . hotchpot . hotchpot est un medling ou mixing ensemble , & & un partition , de terres done en frank-marriage , ovesque auters terr̄ ē fee-simple discendus . pur example , un hōe seifie de acres de terre en fee ad issue deux files , & done ovesque un 〈◊〉 ses files , al un home que luy marrie , acres de c ' terre en frank-marriage , & morust seisie de les auters acres . ore si el que est issint marrie voilloit aver asc ' part d' les acres d' que sa pere morust seisie , el doit mit ' ses terres done en frank-marriage en hotchpot , c ' est adire , el doit refuser d' p̄der les sole profits ● l terre dona en frank-marriage , & suffer le terre de estre commixt & mingle ensemble ovesque le aut ' terre de que sa pere morust seisie , issint que un equal division poit estre fait 〈◊〉 lentire perenter luy & sa soer . et issint p̄ sa x acres el avera xv ; auterment sa soer voit aver les les xx acres de queux lour pere morust seisie . housebote . housebote est necessaire merisme q̄ le lessee pur ans ou pur vie , de common droit , poit prender sur le terre , a repairer les measons sur m̄ le terre a luy lessa , nient obstant il ne soit expresse en l' lease & nient obstant il soit un lease ꝑ parol , sans fait . mes si il prist pluis q̄ besoign̄ , il poit estre punish ꝑ un action de waste . hue and cry. hue & crie , est un pursuit de ū aiant com̄it felonie per le haut chimin : car si le partie rob , ou ascun en l' cōpanie de ūque fuit murdr̄ ou rob , vient al constable del ꝓchein ville , & luy commanda de faire hue & crie , ou de faire pursuit puis l'offendor , describant le partie , & cy pres q̄ il poit , monstrās quel voy il est ale ; le constable doit immediatement de appeller sur le paroche p̄ aiđ en querance le felon ; & si il ne soit trove la , donque de doner garrein al ꝑchein cōstable , & il ad prochein a luy , jesque le offendor soit apprehend , ou al meins jesque il soit este pursue al latere de mere. de ceo veies bract. l. . tr . . c. . smith de repub. angl. l. . c. . & le statute de winchest . fait , an. e. . & le stat. de . e. . c. . & an. . el. c. . huers . huers . veies conders . hundred . hundreds fueront divide ꝑ alfred le roy , apres q̄ il ad divide le entire realm̄ en certain̄ ꝑts ou sectiōs , le q' l ● le saxon ꝑol scyran , significā● scinder , il terme shires , ou ( sicōe nous uncor̄ ꝑle ) shares & portions . ceux shires il auxy divide en petlts ꝑts ; ● queux ascuns fueront appelles lathes , de le ꝑol gelathian , q̄ est de assembier ensemble : aut's tithings , pur ceo q̄ la fuerōt en chesc ' de eux al number ● dize ꝑsons ; 〈◊〉 que chesc ' fuit suretie & pledge pur auters bone behaviour : auters hundreds , p̄ ceo que ils contain̄ jurisdiction sur un hundred hōes ou pledges , ● murrāt ꝑadvent ' en deux , ou trois , ou pluis paroches , boroughs , ou villes , esteant & adjoynant niens meines procheine ensemble , en le quel il appoint administration de justice destre exercise severalment enter eux de mesme le hundred , & nemy q̄ l'un irra hors disorderment en l'auter hundred , lathe , ou tithing , en que il ne demurt . ceux hundreds continue a cest jour en force , nient obstant ne en tout al m̄ le purpose pur que al primer ils fueront ordeine , uncore a ore mult necessarie , & en tem̄ps de peace pur bon̄ order de governm̄t divers voies , & en guerre p̄ certaintie de levying de hōes ; come auterm̄t p̄ le pluis speedie collection des payments grant en parliament a les roys de ceo realme . hundred-lagh . hundred-lagh signifie le hundred-court , de quel touts les officers ● l forrest l' roy fueront exempt per le chartre de canutus , cap. . hundredum . hundredum est , quietum esse de denariis vel consuetudinibus faciendis praepositis & hundredariis . husfastene . husfastene ( quasi domi fixus ) est il q̄ tient meason & tr̄e . br. l. . tr . . c. . hustings . hustings ( hustingium ) est un court de common-plees tenus devant le maior & aldermen de londres , & est le plus hault court que ils ont , car error ou attaint gist la dun judgement ou faux verdict en le court le viscount , come appiert per fitzh . n. b. h. &c. & ꝑ le statute de h. . c. . et auters cities & boroughs o ̄t ew ū court de m̄ le nosm̄ , cōe winchester , lincoln , york , & sheppy . issint appel ' 〈◊〉 le saxon hus , domus , & thing , causa , quasi , domus causarum . i. idemptitate , ou identitate nominis . idemptitate nominis est un brief q̄ gist loū brief de det , covenant , accompt , ou tiel semblable brief est port vers un home , & un auter que ad mesme le nosme ove le defendant est pris pur luy ; donques il avera cest brief , per que le viscount ferra inquirie devant le jestice assigne in mesme le countie , si soit mesme le ꝑson ou memy ; & ● i ne soit trove le partie , donques il alera sans jour en peace . ideot . ideot est celuy que est un sot natural de sa neisture , & ne scavoit d' accompter xx . d. ou nosme son pere ou mere , ne de quel age luy mesme est , ou tiel semblable plaine & common choses , issint q' il appiert que il nad ascun man̄er d'intendment , reason , ou governm̄t ● luy mesm̄ . mes si il poit lier , ou apprehender de lier ꝑ instruction & information des auters , ou poit measure un ulne ● e drape , ou nosme les jours en le semaigne , ou engen ● un enfant , ou tiel semblable , ꝑ q̄ il poit appear que il ad asc ' lumen de reason ; tiel nest ideot naturalmēt . jeofaile . jeofaile est , quant les parties al ascun suit en pleadant ont a tant ꝓceed que ils ayant joyne issue , quel serra trie , ou est trie ꝑ un jurie ou enquest ; & cel pleading ou issue est cy malement plede ou joyne , que il serra error si eux ꝓceed : donque ascun del dits parties poit per lour councel monstre c ' al court , auxy bien apres verdict done & devant judgment , come devant le jurie soit charge , et le councel dirra , cest enquest ne doit prend ' . et si soit apres verdict , donques il poit dire , al judgment ne deves aler . et p̄ ceo que ꝑ tiels niceties mults delaies fueront en suits , divers statutes sōt faits de redresser ceo , auxy bien en temps 〈◊〉 roy h. . an . . c. . come en le temps le roigne eliz. de queux come piot dire cōe les civilians , quod tametsi juris formulas amputari jusserit constantinus imperator , quotidianus tamen forensis usus eas revocasse videtur , vel potius quod crescunt ut hydrae capita . veies auxy ore un novel statute de jeofailes , fait en jac. c. . jetsam . jetsam est , quant un niefe est en peril destre merge , & p̄ disburden le neife les mariners jetta les biens en le mer : & puis nient obstant le niefe perish , nul 〈◊〉 ceux biens que sont appel jetsam , floatsam , ou lagan , sont appel wreck , cy long come ils remain en ou sur le mer ; mes si asc ' d' eux sont mise al tr̄e ꝑ l'mer , donque ils serront dit wreck , & passe ꝑ le graunt ● wreck . coke , l. . f. . jettezoons . jettezoons , ceo est mention ē policies d' insurance , & signifie biens eject en le mere , en un grand storm . illoyal assembly . iloyal assemblie est , lou people eux assemble insimul p̄ faire illoyal chose enconter le peace , nient obstant que ils ne execute lour purpose en fait . imparlance . imparlance . veies emparlance . impeachment de waste . impeachment de waste . ( impetitio vasti ) est tant adire come un demand fait ou destre fait p̄ waste fait p̄ ū tenant que nad forsque un particular estate p̄ vie ou p̄ ans . et p̄ ceo cestuy que ad tiel lease sans impeachment de waste , ad ꝑ ceo ū ꝓpertie ou interest a luy done ē les measons & arbres , & poit faire waste en eux sans estre impeach p̄ ceo , cestascavoir , sans estre question ou ascun recompence ● luy demand p̄ le waste fait . veies coke , l. . en bowles case , f. . b. implements . implements venust ou del parol francois ( employer ) ou del latine ( implere ) & est use p̄ choses necessarie destre use en asc ' trade ou mysterie , queux sont imployes en le practice del dit trade , ou sans queux l'ouvrage ne poit estre accomplish . auxy p̄ le furniture quibus impletur domus . et en ceo sense vous trovers le paro ● plusors foits ē darreine velunts & auters conveyances des moveables . impost . impost est un parol francois q̄ sign ● fie tribute , mes ove nous est prise pur le tax pay al roy pur ascun merchandise emport en ascun havre hors des lieus ouster le mer. et est use en le statute de eliz. cap. . come un synonymon ove custome que merchants payont . imprisonment . imprisonment est le restraint del libertie d'un home , soit c ' ē l'over champs , ou en le cippes ou cage en les streets , ou en le ꝓoper meason d' un home , cybien cōe en le common coal . et en touts ceux lieus le partie issint restrain est dit destre un prisoner , cy longement come il nad son libertie frankm̄t d' ire a touts tēps & lieus lou il voit , sans baile ou mainprise . incumbent . incumbent venust del latine ( incumbere ) & signifie cestuy que est ꝑsent , admit , & institute al ascon esglise ou benefice ove cure ; que est p̄ ceo appel l' incumbent de ceo esglise , eo quod incumbit ad curam animarum ibid. omni studio . indicavit . indicavit est un br̄e ou prohibition q̄ gist p̄ un patron d'un esglise , quel clerk est defendant en court-christian ē un action p̄ tithes , commence ꝑ un aut ' clerk , & extendant al quart part del esglise , ou ses tithes ; en quel case le suit appertein al court le roy , ꝑ westm . . c. . et p̄ cest cause le patron del defendant ( esteant en ꝑil destre ꝑjudice en son esglise & advowson , si le plaintife gaine ē le court-christian ) al cel means il remover al court de roy , reg. orig . f , . & brit. c. . cest brief nest retornable ; mes sils ne cestont lour suit , il avera un attachment . inditement . indictment . veies enditement . indorsement . indorsement , est c ' q̄ est escr̄ sur le dorse d'un escript ; come le condition d'un obligation est dit destre indorse . p̄ ceo que est communem̄t escrie sur le dorse del obligation . induction . induction est un lay act fait per precept del ordinary ꝑ quel actual possession de esglise est done al rector ou viccar puis son presentation & institution a ceo . infangtheef . infangtheef est un privilege ou libertie concede al sn̄rs del certein mannors , p̄ juger ascun larons prife deins lour fee. information . information pur le roy est ceo q̄ p̄ un com̄on ꝑson est appel un declaration ; & nest touts foits fait directm̄t ꝑ le roy ou son attorney , mes ꝑ un auter home , qui tam pro domino rege quam pro seipso sequitur , sur le breach d'ascun penal ley ou statute , en que un penaltie est done al partie que voit suer pur ceo ; mes nul action de det p̄ recover c ' , donque il doit estre ew per information . ingrosser . ingrosser venust del parol francois grosier , id est , solidarius venditor . mes en nr̄e ley ū ingrosser est ūque achare blees , graine , butre , formage , poisson , ou auter mort victuals , ove un intent p̄ ceux ven ● arrere . et issint il est define en le stat. de e. . c. . fait encounter tiel ingrosser . inheritance . inheritance . veies enheritance . inhibition . iinhibition est un br̄e d' inhibit ' un judge de ꝓceder ouster en le cause dependant devant luy . et ē auter brief lou puis presentment le roy al benefice il present auter & inhibite l' evesque a faire induction al primer presentee . plo. com. . veies f. n. b. f. . ou il mitta prohibition & inhibition ensemble . inhibition est pluis communement un br̄e issuant hors d'un pluis haut court-christian a un pluis base & inferior , sur un appeal , anno h. . c. . & prohibition hors del court le roy de record al westminster a ū court-christian , ou a un inferior court temporal . injunction . injunction est un interlocutorie decree hors del chācerie , ascun foits a done possession al plaintife pur defect de apparance en le defendant , asc ' foits al ordinar e court del roy , & ascun foits al court-christian , d'estop proceeding en un causesur suggestion fait , q̄ si le rigour del ley prend lieu , est encounter equitie & conscience en cel case . veies westm part . . tit . proceedings in chancerie , sect . . inlagarie . inlagarie ou inlagation est je restitution d'un utlawe al protection del roy ou al benefit ou condition d'un subject . inlaugh . inlaugh signifie luy que est sub lege , en quelque frank-plege , nemy utlaw ; 〈◊〉 quel veies bract. l. . tract . . c. . inmates . inmates sont ceux persons d'un familie que sont ꝑmittes p̄ vener & inhabiter en ū cottage ensemble ove un auter familie , per q̄ les povers del parish serront increase . et p̄ ceo per le statute de eliz. c. . la est ū penaltie 〈◊〉 dize souls ꝑ mois impose per ehescun que receivera ou continuera tiel inmate . inquisition . inquisition . veies enquest . inrolement . inrolment est le register , recorder , ou entrer d'asc ' act ou fait en le chancerie ou auters , come d'un recognisance . fine , statute , on fait indent ꝑ le statute de h. c. . per q̄ un frank-tenement passera . instant . instant ( en latine , instans ) est define ꝑ les logicians , unum indivisible in temp ' , quod non est tempus , nec pars temporis , ad quod tamen partes temporis copulantar , & mult consider en ley : & com̄t ne poit actualment estr̄ divide , uncore en considerat ' & conceit il poit estre divide , & apply al several purposes , sicome fueront several temps ; de quel veies en plowden's commentaries en le case enter fulmerston & stuard , lou le statute h. . ( que enact , que si abbe deins an devant cest statute lessa terre al un , que al temps del feasance de mesme le lease eyt mesme le terre al ferme pur terme de ans , donque nient expire , que le lessee avera cest terre solement pur vint un ans ) est expound . et la est debate , que quant termor prent ie second lease , il surrender son form ' terme , & sic al mesme temps del prisel del second lease le former terme est expire . et en le case enter petit & hales , cestuy que occide luy mesme , tanque soit mort ne fesoit felonie , & quant fuit mort , ne est en esse , issint que poit estre dit felon , mes al instant est en ley adjudge felon . et sont mults auters cases en ley , lou l' instant temps , que est indivisible en nature , ● n consideration del ment & intendment del sages del ley est divide ; sur queux surde mults arguments de grand use & profound learning . institution . institution est un faculty fait ꝑ l'ordinarie per quel un vicar ou rector est approve de estre induct al rectorie ou vicarage . interdiction . interdiction ad le m̄ signification en le cōmon cōe en le canon ley , ou il est issint define , interdictio est censura ecclesiastica prohibens administrationem divinorum . et issint il en use , h. . c. . intrusion . intrusion est un brief que gist vers celny que enter apres le mort tenant en dower , ou ascun auter tenant pur vie , & tenust hors celuy en le reversion ou remainder . veies p̄ ceo fitz. n. b. fol. . e. et chescun entry sur le possession le roy est appel un intrusion ; come lou le heir̄ le tenant le roy enter apres office , & devant liverie , ceo est dit un intrusion sur l'roy , come appiert en stanf. prerog . fol. . & mults auters livres . intrusion . intrusion . veies entrusion . inventary . inventarie est un catalogue ou recital en escript des touts les biens & chattels dun que est mort , ove le valuation de eux ꝑ quat ' credible ꝑsōs , le quel chesc ' executor & administrator doit exhibit al ordinarie al temps appoint . joyntenants . joyntenants sont , lou deux homes vient a asc ' tr̄es ou tenements ꝑ un joynt title ; come si home done terres a deux homes & lour heires . tenants en common sont , lou deux ont terres per several titles , ou per feoffment al deux , a aver & tener l'un moyetie al un & ses heires , & lauter moyetie al auter & ses heires : en touts ceux tases nul de eux scavoit son several . si sont deux ou trois joyntenants , & un ad issue & devie , ● onques cestuy ou ceux joyntenants que surviv ' avera lentiertie per surviver . si deux joytenants font partic ' enter eux per fait ꝑ agreement , donques ils sont several tenants . mes si un joyntenant grāt c ' que a luy appent a un estranger , donques l'auter joyntenant & l'estrange ' sont tenants en common . et mesque deux tenants en common sont seise per my & per tout , & nul conust son several ; uncore si un devie , lauter ne avera l'entiretie per surviver , mes l'heire de celuy que devie avera le moyetle . et issint fi sont trois joyntenants , & un de eux fait feoffment de son parte a un auter , & le feoffee devie ; dōques son heir̄ avera le tierce part , & les auters deux sont joyntenants come ils fueront , p̄ ceo que eux deux sont seisies ꝑ un joynt title . auxy si terre soit done al baron & sa feme , & le baron alien & devie , le feme recovera lentiertie : mes si ils fueront joyntenants devant le coverture dōques en tiel case il recovera forsque le moietie . si terre soit done al baron & sa feme , & al tierce person , si le tierce person grant ceo que a luy appent , la mo ● tie passa per cel grant ; p̄ ceo que le baron & sa feme sont forsque un ꝑson en le ley , & en cest case ils nount en droit forsque le moietie . auxy si deux joyntenants sont des terres en vilie que est borough-english , lou terre est devisable ; & l'un ꝑ son testament devisa ceo que a luy appent a un estranger , & devie ; cest devise est void , & le auter avera lentiertie per surviver , pur ceo que le devise ne poit p̄nder effect tanque apres le mort le devisor ; & im̄ediatem̄t apres le mort le devisor le droit devient al auter joyntenant per surviver , que ne claime riens ꝑ le devisor , mes en son droit demesne ꝑ surviver . mes auterm̄t est de parceners seisies des terres devisables , causa qua supra . journies accounts . journies accounts ( dietae computatae ) est un terme en le ley que est entendu en cest mann̄ : si un brief soit abate sans le default le plaintif on demandant , il poit purchase un novel br̄e , que si soit purchase per journies accounts , ( cestascavoire , deins cy petite temps come il poit apres l'abatem̄t ● l primer br̄e , ) donque cest second br̄e serra come ū continuāce del prim̄ br̄e , & issint oustera l'tenant ou defendant de son voucher , plee de non-tenure , joyntenancy pleinment administer , &c. ou ascun aut ' plee que accrue sur matter apres le date del prim̄ brief . et quinze jours ont estr̄ reputes un convenient temps pur le purchase del novel brief . veies pur cest brief per journies accounts , spencers case , coke lib. . fol. . b. joynture . joynture est un estate & assurance fait al un feme en consideration de marriage , p̄ terme de sa vie , ou auterm̄t ; come est mention en l'statute hen. . cap. . soit il devant ou apres marriage . et si soit apres , donques el poit a sa libertie apres le mort de sa baron refuser d'prender ou aver les terres issint assure p̄ sa joynture , & demaūd sa dower a le common ley : mes si il soit fait devant marriage , donque el ne poit refuse tiel joynture , ne aver dower accordant al common ley , si non que quant el port sa brief de dower , le defendant pleade tiel plee que ne voile luy barre de sa dower ; sicome il d t en barre , que sa baron ne fuit seisie de tiel estate de que il poit estre endowe , ou ascun tiel plee , & ne monstre que el ad un joynture fait , &c. & pur ceo demaund judgement de cel action , ou ascun tiel semblable plee , &c. et ceo fult le opinionn de monsieur brograve al son lecture en grays-inne en summer , an. . eliz. sur un branch del statute fait , an. h. b. cap. . concernant joyntures & dowers . et de ceux choses de que un feme poite este endowe , el poit aver un joynture ; come de mines , vesturam terrae , boys , villes , isles , meadows , & tiels semblables . item de un advowson , reversion dependant sur un estate pur vie , wind-mill , hault chamber , rectory , & tiels auters ; & ils sont appels tenements . item dun villeine , car il est hereditament . et de touts ceux profit poit ven̄ al feme . mes de ceux choses de que nul profit poit vener , mes plustoit un charge , un joynture ne poit estre fait . veies p̄ c ' matter co. lib. . fol. . vernon's case . jurisdiction . jurisdiction est un dignity q̄ un home ad per un povoir fair . justice en causes de complaint fait devant luy . juris utrum . juris utrum est un brief q̄ gist pur le successor incumbent dun benefice , pur recover les terres ou tenem̄ts apperteinants al esglise , que fueront aliens per son predecessor . et veies de ceo fitz. n. b. fol. . r. & veies ap̄s tit. utrum . juror . juror est un de ceux ou homes q̄ sont jure al ● eliver le volerty sur tiel evidence cōe ils serra don touchant le matter en question : de queux veies fitz n. b. fol. . d. & l' stat. & car. . cap. for returning able and sufficient jurors . justice seat . justice seat est le plus hault court q̄ est 〈◊〉 ē un forrest , & cest touts temps tēus devant le sn̄r chief justice en eyre del forrest , 〈◊〉 un 〈◊〉 mons ꝑ jou ● s devant . et la les judgments sont touts soits dones , & fines assesses p̄ offences que fueront present as courts del attachments , & les offendors indicts as swainmotes . veies de cest court manw. forrest leys , cap. . fol. . b. justices en eire . justices en eire . veies eire . justicies . justicies est un brief direct al viscount pur l' dispatch del justice en ascuns special cases en son county-court , des queu ● , il ne poit ꝑ son ordinarie poyar tener plee la. et de ceo poies veier precedents en fitzh . n. b. fol. . c. en account , & fol. . b. en annuity , & fol. . g. en det , & plusors auters . et est appel un justicies , pur ceo que est un com̄ission al viscount ad justiciandum aliquem ; & ne require ascun returne ou certificate de c ' que il ad fait . k. keelage . keelage , en latine killagium , est un custome pay al hartlepoole en durham , pur chescun neif veignant en ceo port. rot. parl. . e. . kiddle . kiddle ou kidel , est un dam ou wear en un river . omnes kidalli deponantur de caetero penitus per thamesiam & medweyam & per totam angliam , nisi per costeram maris . magna char. cap. . kings silver . kings silver est , l' argent que est debite al roy en le court de common plees , p̄ un licence y concesse al ascun home a passer un fine . coke , . fol. , & . kintal . kintal est un pois , communement d'cent livres , greinder ou meins , selon le usage de divers nations . monsieur plowden en l' case de reniger & fogassa fait mention de c ' parol . knight-service . knight-service fuit un tenure per quel pleusures terres en cest nation fuer̄ tenus del roy. mes il est abolie ꝑ statute car. . cap. . l. laches . laches ou lasches , est un veil parol francois , que signifie negligence , come appiert en littl. sect . , & . lou laches del entrie nest riens forsque un neglect en le infant p̄ enter . issint que moy semble que poit estre un vieux parol anglois . et qōt nous diomus , icy est laches d'entrie , est tant adire come , ley est lache del entrie . uncore jeo trove que ( lascher ) en francois est laxare , & ( lasche ) significat ignavum vel flaccidum : & pur ceo poit vener auxy del francois . car etymoligies sōt divers , & plusors foits ad placitum . lagan . lagan est tiel parcel des biens come les mariners en le peril del naufrage jectont hors del niefe ; & p̄ ceo que ils scavoient que les biens sont ponderous , & voilont sinke , ils liont as eux un boy ou corke , al intent que poient eux trover , & re-aver . si l' niefe soit merge , ou auterm̄t perish , ceux biens sont appels lagan ou ligan , a ligando : & cy longem̄t come ils continue sur le mer , ils appertinent al admiral ; mes sils sont jects sur le tr̄e , adonque ils sont appels wreck , & apperteinent a celuy que avoit le wreck , come appiert en coke , l. . f. . lageman . lageman est homo legalis seu legitimus , tiel que nous appellom ' , good men of the iury. le parol est trove en dooms day-book . land-cheap . land-cheap est un payment de d. les deniers pur chescu ● mark del purchase des terrs deins le borough de maldon ē essex , ꝑ ꝑscription . quel vide h. , . car. . roll . en . b. r. lapse . lapse ( lapsus ) est l'omission del patron p̄ presenter al esgilse de son patronage deins size mois apres voydance per mort , ou prisel del auter benefice sans qualification , ou notice a luy done del resignation ou deprivation del present incumbent ; per que neglect title accrue al ordinarie pur collater al dit esglise . larcenie . larcenie est un tortius prisel des biens d'un auter hōe , mes nemy de son ꝑson , ove un ment d'eux embi . et larcenie est en deux sorts ; l'un issint appel simplem̄t , & l'auter petit larcenie . le primer est lou le chose emblee exceeda le value de d. & ceo est felonie . l' auter ( que e ● t appel petit larcenie ) est lou le chose emble ne exceda le value de d. & ceo nest felonie . last . last signifie un certeine pois ou burden ; come un last de herring est , anno e. . stat. . c. . un last de hides est douze dozen , anno jac. c. . lastage . lastage est , quietum esse de quadam consuetudine exacta in nundin ' & mercat , pro rebus cariandis ubi homo vult . latitat . latitat est un br̄e per que touts homes en personal actions sont orig ● nalment appels en banke le roy ● e responder . et est appel latitat , p̄ ceo que est suppose ꝑ le br̄e que le defendant ne poit estre trove en le countie del middlesex , come appiert per le retourne del viscount de c ' countie , mes que latitat ē a ● ' countie : & p̄ ceo al visc ' de ceo countie est cest br̄e direct p̄ luy prender . law. law . veies ley. law-day . law-day signifie un leet ou tourne del visc ' , cōe appiert per le stat. e. . c. . lou le tourne le visc ' est issint appel , & h. . f. . b. & plusors aut's livres , lou ū leet est issint appel . veies smith de repub. anglorum , l. . c. . lawing of dogs . lawing of dogs . veies expeditate . lawless man. lawless man est il q̄ est extra legem , un outlaw . br. l. . tract . . c. . num . . leases . leasis sont graunts ou demises , ꝑ un q̄ ad ascun estate ē hereditaments , 〈◊〉 ceux hereditaments al auter p̄ mein ● temps . et c ' sont en divers manners ; cestascavoire , p̄ terme de vie , p̄ ans , p̄ auter vie , & a volunt . auxy un lease de tr̄e est auxy bone sans fait , come ꝑ fait . mes en ū lease p̄ terme de vie il covient de done liverie & seisin sur le terre , ou auterment riens passera ꝑ le grant , p̄ ceo q̄ ils sont appelles frank-tenements . auxy ū lease d'un com̄on ou rent ne poit este bone sans fait . mes d'un parsonage que ad glebe il est bone sans fait , pur ceo q̄ le glebe del esglise , que est le principal , poit assets bien passer sans fait ; & issint les dismes & offerings , que sont come accessorie al esglise . mes dismes & offerings per soy ne poient este lesses sans fait , ut dicitur . leet . leet est un court derive hors del tourne le visc ' , & inquire des touts offences south l'degree 〈◊〉 hault treason qu'x sont com̄ises encont ' le corōe & dignitie le roy. mes ceux offences queux sont punies ꝑ perde de vie ou member sont solement inquirables la , & destre certifies ouster as justices del assise . veies stat. e. . c. . legacie . legacie ( legatum ) est un t' me del civil ley , & est ceo q̄ nous en nostre ley appellomus un devise , viz. tr̄es ou biens done al asc ' ꝑ le volunt ou testament d'un auter . veies pius tit. devise devant . lessor & lessee . lessor est celuy que lessa tr̄es ou tenements al aut ' pur terme devie , ans , ou a volunt : et celuy a que le lease est fait est appel lessee . levant & couchant . levant & couchant est dit , quant les beasts ou cattel d'un estranger sont venue ē le tr̄e d'un aut ' home , & la ont remaine un certein bone space de temps . levari facias . levari facias est un brief direct al viscount p̄ le levier d'un summe des deniers sur les tr̄es , tenem̄ts , & chattels cestuy que ad forfeit un recognisance , veies f. n. b. f. . d. ley. ley est , quant action de det est port vers un sur asc ' secret agreem̄t ou contract ewe ꝑent ' les parties sans especialtie mōstre , ou aut ' mtter de record ; cōe en un action de detinue per ascuns biens ou chattels accommoda ou relinque ove le defendant ; donques le defendant poit gager son ley , sil voile , cestascavoire , jurer sur un livre , & certeine persons ove luy , q̄ il ne detain les biens , ou doit riens al plaintise , en manner & forme come il ad declare . et c'est allowe solement en cases de secrecie , ou le plaintife ne poit prover le surmise de son suit ꝑ ascun fait on overt actiō : car le defendant poit ceo discharge secretment ꝑenter eux , sans asc ' acquittance ou publique act . et p̄ ceo en action 〈◊〉 det sur un lease per ans , ou sur arrearages d' accompt devant auditors assigne , home ne gagera son ley. mes quant un gagera son ley , il amesnera ovesque luy vj , viij , ou xij de ces vicines , come le court luy assignera , de jurer ovesque luy ; mult semble al serem̄t que eux fesoient que son uses en le civil ley , de purger auters d'ascun crime al eux impute , que sont appel compurgators . nota que l' offer de faire le serem̄t est appel le gager del ley , & quant il est accomplish , donques est appel le fesans del ley. et si le viscount en ascun action returne , que il eyt summon le defendant d'appeare en court a ascun jour a responder le plaintife , a quel jour il fait default ; processe serra agard vers luy , de vener & save , ou excuse son default ; que est tant adire , come a purgare moram , ou auterment de perder le chose demand : et le defendant vient , & jure que il ne fuit summon , que est appel gager del ley , donques il doit ceo faire al jour assigne , ove ● ij auters . et en fesans del ley il doit sur son serement affirmer directment al contrarie de c'q̄ est impute a luy : mes les auters dirra seulm̄t , que eux entende que il dit le veritie . libel . libel ( libellus ) est un terme del civil ley , & signifie l' original declaration en ascun action ; & issint est use en les statutes , hen. . cap. . & e. . cap. . et famosus libellus signifie ꝓperment en nostre ley ū scandalous report ● l asc ' home illoyalment publie en escript . veies 〈◊〉 ceo coke l. . f. . a. liberate . liberate est un garrant issuant hors del chancerie al treasurer , chamberlains , & barōs ● l exchequer , ou clerke del hamper , &c. p̄ le paym̄t d' ascun annual pension , ou auter summe graunte south le grand seal , regist . orig . . ou ascun foles al viscount , &c. f. n. b. fol. . pur le deliverie ● terres on biens prise sur forfeiture dun recognisance , fitz. n. b. , . coke , lib. . fulwoods case , fol. , , . auxy a un gaoler del justices , pur le deliverie ● un prisoner que ad mitta eins baile pur son appearance . est auxi un auter brief fait hors del petty-bag office en chancery , sur stat ' staple , puis ū extent sur ceo retorne ; per quel le viscount retorne q̄ il aver liver la terr extend , al conuzee : quel esteant file , il poit donques ( & nient devant ) porter son action d ejectment a recover possession des terrs extend . libertate probanda . libertate probanda . vi ● de ceo en le title nativo habendo . librata terrae . librata terrae contein̄ quater ox-gangs , & chescun ox-gang acres 〈◊〉 ter̄ . skene deverb . signif . verbo bovatae terrae . lien . lien est paroll de deux significations , personal lien come bond , covenant ou contract . et real lien come judgment , statute , recognizance , ou original br̄e versus un heir queux oblige & affect la trree . ligeance . ligeance est un voir̄ & loyal obedience del subject due a son soveraigne ; & cest ligeance , ligeance que est un incident inseperable a chesc ' subject , est en quater manners : le primer est natural , le second acquirus , le tierce local , & le quart legal . de touts queux vous poies lier mult bone erudition en coke lib. . calvins case . limitation . limitation est un assignment de space ou temps , deins quel cestuy que voil ' suer p̄ ascuns terres ou hereditements doit ꝓver , que il ou son ancestor fuit feisie del chose demaund , ou auterment ne mainteinera son suit ou action ; quel assignments sont faits per divers statutes : com̄ le stat. de merton , cap. . westm . . cap. . . hen. . cap. . &c. liverie de seisin . liverie de seisin est un ceremonie use en conveyance de terres ou tenements , lou un estate en fee-simple , fee-taile , ou ū franktenement passera . et il est un testmoigne de le voluntarie departing 〈◊〉 luy que fait le liverie del chose de que liverie est fait . et le resceit del liverie est un voluntarie acceptance per le auter partie de tout ceo de que auter ad luy deveste . et fuit invent come un overt & notorious chose , per meanes de que le common people poient aver intelligence de passing ou alteration de estates de hōe al home , que ꝑ ceo ils poient estre le melieur able pur trier en que le droit & possession de terres & tenements fueront , sils doient estre empanel en jures , ou auterment one a faire concernant ceo . le com̄on manner de liverie de seisin est en cest sort si il foit en l'overt champe , ou ne sont edifices ou meason , donques un que poit lier prist le fait en son main̄ si l' estate passera ꝑ fait , & declara al eux que la soit le cause de lour vener la ensemble , &c. & donq's overtm̄t lia le fait , ou declare l'effect de ceo ; & apres que il est seale , le partie que est a departer ove le terre prist le fait en sa main̄s ovesque un clod del terre , & ū twigge ou bough , si y ad ascun la , q̄ il deliver al auter partie en le nosme de possession ou seisin , accordant al forme & effect del fait la lie ou declare . mes sil soit un habitation ou edifiee sur le terre , donques ceo est fait a door de ceo , nul edeant relinquish a cest temps deins le meason ; & le partie deliver touts les avantdits , ovesque l' annuel de le door , en nosme de seisin ou possession ; & il que receiva le liverie entra primes sole , & shutta le doore , & presentment overt ceo , & lessa eux eins , &c. sil soit de un meason a que est nul terre , le liverie est fait & possession prise per le deliverie del annuel de le door & fait solement . et lou il est sans fait , de terres ou tenements , la le partie declare ꝑ parol , devant resmoignes , l' estate ovesquell entende de departer , & donques deliver seisin ou possession en manner avantdit : et issint le terre ou tenement passera cybien cōe per fait , & ceo per force de liverie de scisin . il suit agree en gray's inne per master snagge , al son lecture la en summer , anno . que si un feoffor deliver la fait en view del terre , en nosme de seism , que il est bone , pur ceo que il ad un possession en luy mesme . mes auterment est dun attorney , car il doit aler al terre , & prise possession luy mesme ● devant que il poit doner possession al auter , accordant al parols de son garrant , &c. et lou liverie ● e seisin est ꝑ le view , si le feoffee ne entra pas puis , &c. nul ohose passa , car il doit enter en fait . lollards . lollards fueront dogmatists en religion en le temps e. . & h. . en ceux temps fueront reputes heretiques ; cōe appiert ꝑ le stat. en r. . cap. . & h. . cap. . queux stat. vous troveres repealed en e. . c. . & el. cap. . avoient lour denomination ( come ascuns pensolent ) del un gualt . lolhard un garmanois , qui vixit circa an. dom. . & fuit l' prim̄ author 〈◊〉 cest sect. lord en grosse . lord en grosse ē il que ē sn̄r sans man̄or , cōe le roy ē respect de son coron̄ , f. n. b. fol. . un hōe fait don̄ en taile de tout son terre , a tener de luy , & morust ; son heire nad rien forsque seigniorie en grosse . lotherwit . lotherwit est , quod capiatis emendas ab ipso qui corrumpit vestram nativam sine licencia vestra . lushborow . lushborow fuit un counterseitde coin̄ en le tēps e. . fait ouster le mer , en similitu ● es deniers anglois , & port eins pur deceiver le roy & ses subjects . et p̄ ceo est declare destre treason ꝑ le statute e. . stat. . c. . p̄ ascun home de ceo porter deins le realme , sil scavoit q̄ est faux . m. maegbote . maegbote compensation pro cognato interfecto . maihem ou maime . maihem est , lou ꝑ l' cortious act 〈◊〉 auter ascun member est damnifie ou tolle ; per que le partie est fait imperfect a combate : come si un osse soit prise hors del test , ou un debruise en ascun auter ꝑt del corps , ou un pee , ou main̄ , ou digit , ou joynt ● un pee ; ou asc ' member soit scy ; ou ꝑ asc ' plage les nerves sont fait 〈◊〉 shrinker , ou les digits fait curve ; ou si un oyel soit mise hors , anterior dents ● bruise , ou asc ' auter chose en le corps dun home ; ꝑ reason de quel il est fait le meins able pur defender luy mesme , ou offend son enemy . mes le scier de un orial ou nase , ou lenfriendrer ● l dēts moliers , ou tiels semblables , nest asc ' maihem , p̄ ceo q̄ il est plus un deformitie de le corps q̄ ū defect ● l strength ; & ceo est communement try ꝑ l' inspection del partie ꝑ les justices . et fi les justices sont en doubt si le damage soit un maihem ou nemy , lls use & voilent de lour grand discretion prender ' aide & opinion de ascun credite surgeon , pur consider de ceo , devant que ils determine sur le case . mainpernable . mainpernable : q̄ poit estr̄ mainprise ou delivered al mainpernors . veies le statute de westm . . cap. . queux persons sont mainpernable , queux nemy . mainprise . mainprise est , quant un home est arrest per capias , les judges poient deliver son corps a certain homes pur garder , & de luy mesne devant eux a certain jour ; & eux sont appelles mainpernors : & si le partie ne appear al jour assigne , l' mainpernors serrōt amercie . maintenance . maintenance est , lou asc ' home don̄ ou ● liver a ū aut ' , que est plaintife ou defendant en asc ' action , asc ' snmme d' argent ou aut ' chose pur maintainer son plee , ou fait extreme labour pur luy qn̄t il nad riens a ceo faire ; donq's laut ' ꝑtie grieve avera vers luy un brief appelle br̄e de maintenance . manbote . manbote signifie ū pecuniarie cōpensation p̄ le occider d'un hōe . lambert . mandamus . mandamus est un br̄e que issuist al escheator p̄ le trover dun office apres le mort dun que morust tenāt le roy ; & est tant ū ove le br̄e de diem clausit extremum , sinon que le br̄e de diem clausit extremum issuist deins l' an apres le mort , & le mandamus ne issuist tanque apres le an , & en case lou ne fuit ascun diem clausit extremum sue hors , ou al meins nient sue cum effectu . fitz. n. b. fol . b. c. veies le stat. car. . cap. . sont auxi auter sort de mandamus , grant sur motion en b. le roy , al evesque d'admit executor a prover un testament , ou a granter administration . stiles rep. . et ū auter a maunder al corporatiōs a restituer aldermen , & auters al officers hors de qu'x ils sont illoyalm̄t expel . veies rep. james bag 's case . mannor . mannor est compound de divers choses , come de un meason , terre arable , pasture , pree , boys , rents , advowson , court-barou , & tiels semblables , queux font ū mannor . et ceo doit estre ꝑ antient continuance de temps , cujus con ● rarium memoria hominum non existat : car a ceo jour un mannor ne poit estr̄ fait , p̄ ceo q̄ un court-baron ne poit estr̄ fait ore , & ū mannor ne poit estr̄ sans ū court-baron , & suiters ou franktenants , deux al ● meins ; car si touts les frank-ten ● ments forsque un escheate al seignior , ou sil purchase touts preter un , la son mannor est ale , pur ceo que il ne poit estre ū mannor sans un court-baron , ( come avantdit ; ) & un court-baron ne poit estre tenus mes devant suiters , & nemy devant un suiter ; & ideo lou forsque un frank-tenem̄t ou frank-tenāt est , la ne poit este mannor propermēt , com̄t en com̄on parlant ceo poit estr̄ issint appel . mansion . mansion ( mansio ) est plus usualment prise pur le chief messuage ou habitation del senior dun mannor , le mease del mannor en que il plustoft reside , capital messuagium , come est appel ; de que le feme per le statute de mag. chart. cap. . avera sa quarentine . manucaptio . manucaptio est un brief que gist pur ce ●● uy que est arrest ou indire d' felonie , & offer sufficient sureties pur son appearance ; mes le viscount , ou cestuy que concerne , ne voit luy admit destre baile : donque il avera cest brief , eux mandant de luy lesser a manprise . veies de ceo fitz. n. b. fol. . g. manumission . manumission est le fesans dun villein destre franhe , & puit estre en deux sorts ; le un est un manumission explicita , lauter un manumission implicata . manumission explicita est quant le sn̄r fait un fai ● al son villein pur luy enfranchiser per cest parol ( manumittere , ) quod idem est quod extra manum vel extra po ●● statem al ● erius ponere . le manner de manumitting ou enfranchising en rēps passe plus usualment fuit issint : le sn̄r ( en presence de ses vicines ) prist le villeine per le test , disant , jeo voile que cest home soit franke ; & ove ceo il luy mise avant hors de ses maines , & per c'il fuit franke . manumiffion implicita sans cest parol ( manumittere ) est , quant le s ● r fait un obligation a son villein a payer a luy money al un certaine jour , ou luy sue lou il poit enter sans suit , ou grant luy un annuitie , ou lessa terre a luy per fait pur ans , ou vie , & en divers semblables cases ; le villein per ceo est fait franke . marchers . marchers sont les noble-homes inhabitants sur les marches d' gales & escose , q̄ ē tēps devāt avoiēt lour private leys , sicome fuissent roys ; & pur ceo en statutes d' h. . c. . h. . c. . h. . c. c . & e. . c. . ●● s sōt appels seigniors marchers . marches . marches sont les limits enter nous & gales ou escose , issint appels ou del parol german ● is ( march ) que signifie li ●● tem , ou del parol francois ( marque ) cest ascavoire , un signe del distinction , ceux esteants le notorious distinctions de deux divers regions . de ceux poies lier en les statutes de hen. . cap. . e. . cap. . h. . cap. . & 〈◊〉 . marshall . marshall est un gen̄al ꝑol pur mults officers en angleter ' : cōe l' sn̄r ou count marshal , de q l mētiō est fait ē les statutes 〈◊〉 r. . c. . & h. . c. , & . le marshal del hostel le roy , de que poies lier en f. n. b. f. . b. & en le stat. de artic. sup . chart. c. . e. . c. . h . c. . h . c. . & auters . sont auxy auters inferiour marshals mentions ē nr̄e livres : come le marshall de banke le roy , en le statute e. . c. . & en f. n. b. f. . l. que avoit le custodie ● s touts les prisoners de ceo court ; & le marshal del exchequer , mention en le statute de h. . stat. . appel le statute del eschequer . marshall est un parol francois , & est tant a dire come magister equitum : car semble que venust del parol germanois ( marschalk ) que ad ceo signification . marshalsea . marshalsea est le court ou seat del marshal del hostel le roy , de que poies lier a large en coke , l. . f. . b. & l. . f. . b. est auxy prise pur le prison pertinant al court del bank le roy , de que le marshal de ceo court est le gardian ; car issint sont les formes des bills la , que a queritur de b in custodia marescalli marescalciae domini regis , &c. maugre . maugre est un parol compound des deux parols francois ( mal ) & ( gree : ) issint q̄ est tant adire cōe invito animo , ou en despight d' ū auter . et issint est use en littleton , sect . . lou est dit , q̄ le baron & feme serront remits maugre le baron , cestacavoire , en despight ou enconter le volunt le baron . maximes . maximes sont les foundations del ley , & les conclusions 〈◊〉 reason , & sont causes efficient , & certeine universal propositions cy sure & ꝑfect , q̄ ils ne poient estr̄ a ascun temps impeach ou impugne , mes doient touts foits estr̄ observe , & tenus cōe fort principles & authorities de luy mesmes , nient obstant ils ne point estr̄ ꝓve ꝑ force d' argument ou demonstration logical , mes sont conus ꝑ induction ꝑ le voy de sense & memorie . pur example , il est un max. q̄ si un hom . ad issue deux fits per divers venters , & l'un purchase terres en fee , & morust sans issue , l' auter ne unques serra son hei ● , &c. item il est un aut ' maxime , que terres discendera del pere al fits , mes nemy del fits al pere , car ceo est un ascension , &c. et divers tiels semblables il y ad , dont veies le doctor & student . maynour . maynour est , quant un laron ad emblee , est p̄sue ove hue & crie , & prise , ayant ceo trove ovesque luy que il ad emblee , ceo est appelle maynour . et issint nous communem̄t use p̄ dire , quant nous trovomus un fesant d'un illoyal act , que nous luy prist ovesque le maynour ou manner . meane . meane . see mesne . mease . mease ( m ● ssuagium ) semble de vener del parol francois maison ou mansion , q̄ nest aut ' forsque ū lieu de abider ou habitation . et unc ' messuage en nr̄e ley comprehend plus q̄ le verie lieu del habitation : car domus & messuagium differ en ceo que domus ne poit estre intend aut ' que les choses en building ; mes messuagium serra dit tout le mansion-lieu , & le curtelage serra prise come parcel d'un messuage , h. . keloway , f. . a. et ꝑ le nosme d'un messuage le garden & le curtelage passera , plowden , f. . a. measondue . measondue est un appellation done as divers hospitals en cest realme , que issint sōt appel , an. & p. & m. c. . & car. . c. . et venust 〈◊〉 francois ( maison de dieu ) & nest plus que dom. dei ou gods house ē anglois . medietas linguae . medietas linguae est un inquest impannel sur ascun cause , de que l'un moietie est des denizens , l'auter a ● iens ; & est use en plees enter parties , dont l'un est un denizen , & auter un alien . et cest manner de trial fuit primes done per le stat. de e. . stat. . cap. . et per le statute de e. . cap. . fuit graunt en cases lou le roy mesme fuit partie ove un alien . melius inquirendo . melius inquirendo est un br̄e que est direct al escheator pur un second inquisition destre fait , quant est asc ' suspition del partialitie en un inquisition fait sur un diem clausit extremum ap̄s le mort le tenant le roy. veies f. n. b. fol. . c. merchenlage . merchenlage est un de ceux trois leys hors des queux gulielme le conqueror frame nostre common ley , ove le mixture des leys de normandie . et fuit le ley des mercians , quant ils avoient le regiment del tierce part de cest realme . mesnaltie . mesnaltie est le droit de mesne ; cōe le mesnaltie est extinct . veil n. b. f. . mesne . mesne est , lou l'owner del terres ou tenements ceux teigne d'un per certaine services , & il ceux tenoit dun auter ꝑ autiels ou auter services ; la cestuy que tient les tr̄es est appel tenant peravail , & cestuy de que il reigne est appel mesne , & cestuy de que le mesne tenoit est appel seignior paramount . et ē cest case , si le seignior paramount distraine le tenant pur le service le mesne , que luy doit acquite al seignior paramount , donques le tenant , avera un br̄e vers le mesne , q̄ est appel brief de mesne ; & si il ne acquit ' le tenant donques le mesne ꝑdra le service le tenāt , & serra forejudge 〈◊〉 son seigniorie , & le tenant serra tenant immediate al chiefe seignior , & ferra luy mesmes les services & suits come le mesne fist . messuage . messuage . veies mease . metropolitane . metropolitane , signifie les archievesques , de queux canterburie , est nosme totius anglicae primas & metropol . et york semble sans le parol , totius . miscreant . miscreant est , un q̄ est pervert al heresie ou faux religion . bro. presentation . mise . mise est un parol francois , & signifie tant come expensum en latine ; & issint est frequentment use en les entries des ju ● gments ou personal actions : quant le plaintiff recover , l' entrie est , quod recuperet damna sua a tiel value , & tant pro misis & custagiis la est auxy un auter acception ou signification de cest parol en ley , lou est prise pur l' issue ● estre trie per battaile ou grand assise . et issint est use en littleton , sect . , . & divers auters , lou joinder del mise sur le m ● re droit est mitter ceo en issue , que avoit le melieur ou plus cleere droit . misericordia . misericordia est use en le common ley pur un amerciament ou peine mife sur asc ' p̄ un offence ; cōe lou le plaintiff ou defendant en asc ' action est amerce , l' entrie est touts foits , ideo in misericordia , &c. et est p̄ c'appel misericordia , come fitzh . dit n. b. fol. h. eo que doit estr̄ forsque petite & meins que le offence , & salvo contenemento , come le statute de mag. chart. cap. . ꝑle . et pur ceo si home soit outragiousment amercie en un court que est de record , come en court-baron , &c. la est un br̄e appel moderata misericordia destre direct al sn̄r ou baily , eux commandant que ils prenderont moderates amerciaments solonque le quantitie del trespas . et de ceo veies fitz. n. b. fol. . a. & moderata misericordia apres . misnomer . misnomer est le mistake ● un nom̄ , ou le using de un nom̄ p̄ un auter . veies broke , tit . misnomer . misprision . misprision est , qn̄t ascun sciet que un auter ad fait treason ou felonie , & il ne voile luy discover al roy , ou son councel , ou a asc ' magistrate , mes conceala son offence . divers auters offences sont appelle misprision : sicom̄ un chaplein ad fixe un antient seal dun patent a un novel patent de non-residence , ceo fuit tenus des ● re misprision de treason tantum , & nul counter ● eit del seal del roy. issint ē tenus en h. . bro. tit . treason . in fine : mes h. . fol. . a. est adjudge contra ; & stamf. pl. cor . fol. . b. cite ceo p̄ treason ; & issint est tenus a cest jour . item si un auter sc ● et money destre faux , & port ceo hors de ireland en angleterre , & utter ceo en paym̄t , ceo est forsque misprision de treason , & nemy treason : & issint est en divers semblables cases . en touts cases de misprision de treason , le partie offendor forfeitera ses biens a touts jours , & les profits de ses terres pur son vie , & son corps al prison al pleasure del roy. et pur misprision de felonie ou trespasse , l' offendor serra commit al prison , tanque il ad trove sureties ou pledges p̄ son fine , que serra assesse per le discretion de les justices devant que il fuit convict . et nota , que en chescun treason ou felonie est include misprision ; & lou asc ' ad fait treason ou felonie , le roy poit causer luy destre endicte & arraigne forsque de misprision solement , si il voile . vide plus de ceo stamf. lib. . cap. . mittimus . mittimus est un brief per q̄ records sont transfer̄ del un court al auter : ascun foits immediatement , come appiert en le stat. r. . cap. . come hors del bank le roy en l' exchequer ; & asc ' foits per un certiorari en le chancerie , & dillonques per un mittimus en auter court , come poies veier en h. . dyer , fol. . a , b. & h. . dyer , fol. . a , b. cest parol est auxy use pur le precept que est direct per un justice del peace al gaoler p̄ le receiver & safement garder dun felon , ou auter offendor , commit per le dit justice al gaole . moderata misericordia . moderata misericordia est un brief que gist lou come est amercie en court-baron ou countie plus que devoit est re : donques il avera cest brief direct al viscount , si soit en le countie , ou al bailiff , si soit en court-baron , eux commandant que ils ne luy amerciont mes eyent regard al quantitie del trespasse : sils ne obey cel br̄e , donques issera vers eux un sicut alias , & causam nobis significes , & apres ceo un attachment . modus decimandi . modus decimandi est , denyers on auter chose de value done antiuaiment en lieu de dismes : le tryal de quel appertaine al common ley , & nemy al ascun court christian . ridleys view of the civil law , . en quel il dit que en le temps de william le primer roy fuit un modus decimandi per totum regnum pro omnibus rebus . monstrans de droit . monstrans de droit est un suit en le chancery p̄ le subject destr̄ restore as tr̄s & tenements queux il monstre destr̄ son droit , mes sont ꝑ office troves destre en le possession dun q̄ darreinment morust , ꝑ quel office le roy est entitle al un chattel , frank - ● enement , ou inheritance en les dits terres . et cest monstrance de droit est don̄ ꝑ les statutes 〈◊〉 e. . cap. . & e. . cap. . veies coke , lib. . fol. . b. en le case del wardens & communaltie des sadlers . monstrans de faits ou records . monstrans de faits ou records est sicome , pur example , un action 〈◊〉 det soit port envers a sur un obligation ꝑ b , ou ꝑ executors , &c. apres le plaintife ad delcare , il doit monstre son obligation , & le executor le testament , al court. et issint est de records , et le diversitie perenter monstrance de faits ou records ; & oyer de faits ou records , est issint : il que pleade le fait ou record ; ou declare sur ceo , doit monstre ceo ; & lauter vers que tiel fait ou record est pleade ou declare , & est per ceo destre charge , poit demand oyer de ceo fait ou record , que son adversarie port ou plead vers luy . monstraverunt . monstraverunt est un brief que gist pur l' tenants en ancient demesne , & est direct al seignour , luy commandant que il ne distraine son tenant p̄ fair auter service que il doit : & ils poient aver cest brief direct al vic' , que il ne suffer le seigniour a distraine les dits tenant pur faire auter service . si les tenants ne poient estre en quiet , ils poient aver un attachment vers le sn̄r , de appearer devant les justices ; & touts les nosmes des tenāts serront mise en le brief , coment que forsque un de eux foit grieve . auxy si a ● cun terre en ancient demesne soit en variance enter les fenants , donques le tenant issint grieve avera vers auter brief quod vocatur droit close , secundum confuetudinem manerit ; & ceo serra touts foits port en le court le seigniour , & sur ceo il countera en le nature de quel brief il voit , come son case gist : & cest brief ne serra remove , si non p̄ grand cause , ou non-power de le court. auxy si le sn̄r en auter lien hors de ancient demesne distraine son tenant de faire auter service que il doit , il avera brief de droit , appelle ne injuste vexes ; & cest un brief de droit patent , que serra trie per battel ou grand assise . mortdancester . mortdanc st ● r ● vide devant en le title cosinage . mortagage , ou morgage . mortgage , ou morgage est , quant un fait un feoffment a un auter sur tiel condition , que si le feoffor paya al feoffee a certain jour l. ● argent , que adonque le feoffor poit re-enter , &c. en ceo case le feoffee est appel tenant en morgage . et ficome un home poit faire feoffment en fee en morgage , issint il poit faire don̄ en taile , ou lease p̄ vie ou p̄ ans en morgage . et il semble que la cause p̄ que il est appel morgage est , pur ceo que il estdit en anrust si le feoffor voile payer al jour limit l' argent ou non ; & si il ne paya pas , donque le terre que il mist en gage sur condition 〈◊〉 paym̄t ● le money est ale de luy a touts jours , & issint mort a luy sur cōdition : mes si il paya le money , donques est le gage mort qn̄t a le tenant , cestascavoit , le feoffee . et p̄ cest cause il est appel en latine mortuum vadium , come littleton dit ; ou mortuum vas , come jeo pense . auxy si feoffm̄t soit fait ē morgage sur condition , que si le feoffor paya tiel summe a tiel jour , &c. & le feoffor . morust devant le jour , unco ● si le heire le feoffor paya le summe a mesme le jour al feoffee , & le feoffee ceo refusa , le heire le feoffee poit enter , mes en tiel case , si n ● soit ascun jour de payment expresse , donques tiel tender del heire est voide , pur ceo que quant le feoffor morust , le temps del tender est passe ; auterm̄t les heires le feoffor averont temps del ten ● a touts jours , que serra inconvenient , q̄ un avera un fee-simple a luy & ses heir̄s defeasible touts foits a le pleasure & volunt de auters . mes en le primer case l' tēps del sender ne fuit expire per la mort le feoffor . mortmaine . mortmaine : lou terres sont dones a meason 〈◊〉 religion ou a un auter companie q̄ sont corporate ꝑ le grant le roy , cest trē est devenus ē mortmaine , cest adire en anglois , a dead hand ; & donque le roy ou le sn̄r de que le tr̄e est tenus poit entre , come appiert per le statute de religiosis . auxy cy un fait feoffment sur confidence a certain persons al oeps de un meason de religion , ou al oeps de ascun g ● ld ou fraternity corporate , il serra dit mortmain , & il encourage mesm̄ le pain , ut patet per l' statute , anno r. . mortuary . mortuary ( mortuarium ) est ceo aver ou auter chattel moveable , que , apres le mort del owner , per le custome des ascuns lieus , accrue al parson , vicar , ou priest del paroche , en lieu ou satisfaction des dismes ou oblations oblites on nient duement payes ꝑ cestuy que est mort , veies ore l' statute de h. . cap. . que limit le course & order del payment de ceux mortuaries , ou de deniers pur eux . mulier . mulier est up ꝑol use en nostre ley , mes cōe aptm̄t jeo nepoy dier : car , accordāt al ꝓper significatiō , mulier est foemina corrupta , sicome il est use ꝑ ulpianus en tiel man̄ ; si ego me virgin̄ emere putarem , cum esset mulier , emptio non valebat . per c ' poyes veir , que mulier est un feme que ad ew le cōpanie ● ū hōe . mes a relinquisher l' droit significant , mulier est prise en nostre ley pur ū que est loyalment engēder & nee ; & est touts foits contradistinguished ovesque ū bastard , solem̄t p̄ monstre un differēce pent ' eux ; cōe p̄ example : un hōe ad un fitz ꝑ un feme devant marriage ; cest issue est un bastard , & illoyal : & ap̄s il marrie ove le mere del bastard , & ont un aut ' fitz ; cest second fitz est appelle mulier , cest adire , loyal , & serra heire a son pere ; mes le auter ne poit estre heire al ascun home , pur ceo que il nest conus ne certaine en le judgement del ley que fuit son pere , & pur cest cause est dit destre nullius filius , ou filius populi , & issint sans pere , accordant al cestuy veil verses ; cui pater populus , pater est sibi nullus & omnis : cui pater est populus , non habet ipse patrem . et touts foits vous troves cest addition al eux ( bastard eigne , & mulier puisne ] quant ils sont compare ensemble . muniments . muniments ( munimenta ) sont evidēces ou escripts touchants le possession ou inheritance dascun home , per queux il est able pur def●nd ' l'e●●ate que il ad et ils sont issint appels del latin parol muvio , que signifie pur defender ou fortifier . et h. . f. . b. wangford dit , que cest parol muniment include touts manners des evidences , viz. charters , releases , & auters . murage . murage ( muragium ) est un tolle ou tribute levie pur l' repairer ou edifier des publique mures . veies fitzh . n. b. fol . d. & l' stat. e. . cap. . murder . murder est un voluntarie occider 〈◊〉 un home sur malice prepense , & semble ● e vener de le saxon parol mordren , que issint signifie . et mordridus ē le murderer tanque al cest jour ent ' eux in saxony , ●que nous avomus mults 〈◊〉 nostr̄ parolx , come ad estre sovent dit . ou poit estre derive de mort & dire , quasi mors dira . veies stanf. plees del coron . lib. . muster . muster venust del parol francois monstrer , id est , monstrare ; car de muster nest riens forsque de monstre homes & lour armes , & d'eux inroller en un livre , come appiert ꝑ l'stat . de h. . cap. . n. naam . naam est le pursuer on apprehension des biens moveables de un auter home : & il est ou loyal , ou illoyal . naam loyal est un reasonable distresse accordant al value del chose pur que distresse est fait . veies puis de ceo en hornes mirrour de justices , lib. . nativo habendo . nativo habendo est un brief que gist lou le villeine ou nief de un seigniour est ale ● luy ; donques le seigniour avera cest brief direct al vic' , que il face le sn̄r aver son villein ou niefe , ovesque touts ses chateux . en cest brief plusors villeins ou nieses ne purront estr̄ demandes que deux ; mes cy tant des villeins ou niefes que voilent joyntm̄t poiēt porter br̄e de libertate probanda . et si un nief port brief de libertate probanda avant que le seigniour port cest brief , donques le villein plaintif ou niefe serra en peace jesque al venue des iustices , ou auterm̄t son brief ne luy aidera . au ● y si un villein ad demur en antient demesne per un an & jour sans claime del seigniour , donques il ne poit luy seiser deins le dit franchise . naturalization . naturalization . veies denizen . ne admittas . ne admittas est un brief direct al evesque al suit de un que est patron de ascun esglise , & il doubta que l'evesque voit collate un son clerk , ou admit un auter clerk p̄sent ꝑ auter home al dit benefice : donques il q̄ c ' doubta avera cest brief , de inhibiter le viscount de collater ou admitter ascun a son esglise . negativa pregnans . negativa pregnans est , quant un action , information , ou tiel semblable suite , est port envers un , & le defendant plead en barre del actiō ou auterment un negative plee , que nest cy special aunswer al action , mes que il enclude auxy un affirmat ● ve . come p̄ example ; si ū br̄e de entre en casu proviso soit port per cestuy en le reversion sur alienation ꝑ le tenant pur vie , supposant que il ad alien en fee , ( que est un forselture de son estate ) & le tenant al brief dit que il nad alien en fee ; cest un negative , en que est include un affirmative : car nient obstant il soit veray que il nad alien en fee , uncore il poit estre q' il ad fait un estate en taile . ( le q̄l est auxy un forfeiture ) & donques l' entry de celuy en l'reversion est loyal , &c. item en un quare impedit , l'roy fist title de presenter a un prebend , ratione que les temporalties de l'evesquerle fueront en sa mains ꝑ le mort ● w. nuꝑ episcopum , &c. le defendant dit que ne voida pas , esteants les temportalties ē les maines ● l roy ꝑ le mort de w. cest un negative pregnant ; car il poit estre en les maines del roy auterment que per le mort de w. & il suffist al roy si soit en sa maines , &c. issint est lou un information fuit port in scaccario vers j. s. pur ceo que il achate lanes perēter sheringtemps & assumption tali anno de j n. le defendant dit quod non emit de j. n. come il est alleadge , &c. ceo est appelle un negative pregnant ; car sil ceo achate de auter , uncore il est culpable pur achater . neif , ou nief . nief est un feme que est bonde , ou ū villein feme : mes si el marrie un frankhome , el est ꝑ ceo fait frank , pur ceo que el & sa baron sont forsque un person en ley , & el covient estre de mesme le nature & condition en ley a touts entents cōe sa baron ; mes sa baron est frank a touts entents sans ascun condition en ley , ou auterm̄t ; & issint per consequens le feme covient estre , & est frank accordant al nature son frank baron . et donques si el soit un foits franke & cleerement discharge de villenage a touts entents , el ne poit estre niefe apres sans especial act fait per luy , come divorce , ou conusans en court de record , & c ' est en favour de libertie . et p̄ ceo un franke feme ne serra villeine per prisel del villein a sa baron ; mes lour issue serra villeines come lour pere fuit : que est contrary a le ley civile , car la est dit , partus sequitur ventrem . bondage ou villeinage ad son cōmencem̄t enter les hebrews , & son original de chanaan le fits de cham , q̄ , p̄ ceo que il avoit derise son pere noe , gisant dissolutement quant il fuit ebrle , fuit punie en son fits chanaan ovesque penaltie d'bondage . ne injuste vexes . ne injuste vexes . vide titulo monstraverunt . next friend . next friend . veies prochein amy. nihil dicit . nihil dicit est , quant un action est pore envers un home , & le defendant appeare , & le plaintife declare , & le defendant ne voile responder , ou pleade al action , & ne maintaine son plee , mes fait default ; ore sur cest default il serra condemne , quia nihil dicit . nisi prius . nisi prius est un br̄e judicial , & gist quant l'enquest est impanell ' & retorne devant les justices en banke ; donques le plaintife ou defendant poit aver cest br̄e direct al vil ● ' , luy commandant q̄ il face vener la enquest devant les justices en m̄ le countie a lourvener , & ceo p̄ easement del enquest . nomination . nomination est , lou un poit , en droit de son mannor ou auterment , nominate & appoint un able clerk ou hōe al un parsonage , vicarage , on tiel spiritual promotion . et nota que cest nomination poit estre al auter que l' ordinarie , que auter luy presenter̄ al ordinarie . non-ability . non-abilitie est , lou un action est port vers un , & le defendant dit , que le plaintiff est non able de suer asc ' action , & demand judgment sil serra responde . il y ad causes de non-abilitie en le plaintiff : come sil soit utlage , ou alien nee , ( mes cest disabilitie est en actions reals & mix solement , & non en actions personals , si non que il solt un alien enemie ) ou condemne en praemunire , ou ꝓfesse en un abbie , priorie , ou frierie , ou excommenge , ou un villeine , & sue son seignoir . mes cest darreine nest plee pur auter que nest seignior al villeine . vide de ceo littl. l. . c. . non-age . non-age est tout les temps de l'age del home desouth ans en ascun cases , & en auter , come marriage . veies broke , tit. age. non-claime . non-claime est l' omissiō ou neglect de cestuy que doit challenger son droit deins un temps limitte ' per quel neglect il est ou barre de son droit , come a cest jour sur non-claime deins cinque ans apres un fine & droit a luy accrue , per le statute de h. . c. . ou de son entrie per un discent pur default del claim deins cinque ans ap̄s le disseisin fait , ꝑ le statute de h. . c. . non omittas propter libertatem . non omittas propter libertatem , est un brief que gift lou le viscount retorne sur brief a luy direct , que il ad maund al bailiff de tiel franchise que aver retorne des briefs , & il nad serv ● e le brief ; donques le plaintiff avera cest brief direct al viscount , que il luy mesme enter en le franchise , & execute le brief le roy. auxy le viscount garnera le bailiff , que il soit devant les justices al jour contenus en le brief ; & sil ne vient & luy acquite , donques touts les briefs judicial que passeront hors del court le roy durant mesme le plee serront briefs de non omittas , &c. & le viscount ferra execution d' eux pendant cel plee . non-suit . non-suit est le renouncer del suit per le plaintiff on demandant ; quant le matter est en probability p̄ proceed , apres le tenant ou defendant ad appear , &c. et vide le statute h. . c. . en queux cases hōe ne poit estre non-suit ; & h c. . & eliz. c. . & jac. c. . lou cestul qui est non-suit payera costs al defendant . non sum informatus . non sum informatus est un formal response fait per un attorny , que est cōmand per le court dire ascun chose en defence 〈◊〉 son cliēt , per quel il est adjudge lascher son client sans defence , & issint judgement passe p̄ l' auter partie . novel assignment . novel assignment est , ou home port trespasse de son close debruse : et le defendant justifie en un lien on nul trespass ● fuit fait , donque plaintif assigne le close ou c ' fuit , a q'l le defendant poit plead , de rien culpable ou justifie per title . et auxi sont aut's replications en battery , & aut's trespasses ; come si def. en battery justifie per un brief , le plaintif reply que puis le retorne de ceo le plaintif en ceo suit discharge le plaintif hors de prison , & puis le defendant luy prist & imprison , ore le defendant respond a ceo replication . nude contract . nude contract , ou nude promise , est , lou un hōe bargaine ou vende ses terres ou biens , ou ꝓmise p̄ don̄ al auter monie , ou un chival , ou ed fier un meason , ou faire tiel chose a tiel jour , & la est nul recompence appoint a luy p̄ le faire de ceo ; come si un dit al auter , jeo vende ou done a vous touts mes terres ou biens , & la est nul chose appoint , assigne , ou agree , que l' auter donera ou payera pur ceo , issint que il nad quid pro quo : cest ū nude cantract , & void en ley , & p̄ non-performance de ceo nul action gist , car , ex nudo pacto non oritur actio . nuper obiit . nuper obiit est un brief , & gist lou un ad plusors helrs , cestascavoir , plusors files , ou plusors fits , sil foit en gavelkind en kent , & devie seisie , & un heire entra en tout la terre ; donques les auters que sont tenus dehors averont cest brief vers le coheir que est deins . mes brief de rationabili parte gist en tiel case ou l'ancestor fuit un foits seisie , & ne morust ● elsie de possession , mes del ● reversion . nusans . nusance est , lou asc ' home levie ascun mure , ou estoppe ascun ewe , ou fait ascun chose sur son tr̄es demesne al annoya ● ce son ꝓchein ; cestuy que est grieve avera un brief appel assise de nusans : auxy si il que fist le nusans alien le terre a un auter , donques cest brief serra port envers ambideux , come appiert ꝑ le statute de westm . . c. . poit estre auxi ꝑ estopper de luminers en ū mese , ou p̄ causer d'ewe de flow sur mese auters pur remedy de quel un action sur le case ou assise gist . o. oblations . oblationes sunt quaecunque a piis fidelibusque christianis offeruntur deo & ecclesiae . occupant . occupant , est quant un home fist un lease al auter pur term del vie de tierce persō : le lessee morust , il que primes enter , tener la terr come occupant durant ' la vie del tierce person ; quel a preventer tiels leases sont ore faits al lessee ses heirs & assigns . cro. . co. . rep. . odio & atia . odio & atia est ū vieux brief mention ē le statu ● e de westm . . fait en e. . cap. . & fuit direct al viscount , pur inquire si hōe commise al prison sur suspicion del murder fuit commise sur un just suspicion , ou pur malice solement . et si sur enquiry fuit trove que ne fuit culpable , adonques un auter brief venust al viscount p̄ luy bailer . mes cest course est ore tolle per le statute de e. . cap. . come appiert en stamford's pl. cor. fol. . g. et veies coke , lib. . fol. . a. b. ordael . ordael est tant adire come expers criminis ; & fuit antient manner de trial en criminal causes : car quant le defendant , esteant arraine , plede rien culpable , il puit es ● ier le quel il voet mitter luy mesme sur dieu & le pais , que est sur le verdict de douze homes , cōe il sont jesque a cest jour , ou sur dieu solement ; & pur ceo fuit appel judicium dei , presumant q̄ dieu voille deliver le innocent ; cestascavoir̄ , sil fuit de franke estate , donq̄s ꝑ feu , cestascavoir̄ , a passera ouster novem vomeres ignitos nudis pedibus : & sil escape illaesus , il serra acquite ; & sil nemy , il serra condemne . et si le partie fuit 〈◊〉 ū servile condition , donque il serra trie per ewe , que fuit en divers man̄ers : pur queux veies lambert , verbo ordalium . mes jammes cest trial est ouste ꝑ parlemente . veies coke , lib. . fol. . b. ordelfe . ordelfe est , lou un claim̄ de aver le ore que est trove en son soile ou terre . ordinary . ordinary ( ordinarius ) est ū term̄ del civil ley , & en ceo signifie ascun judge q̄ ad authority p̄ prender conusance de causes ē son droit dem̄ , & nemy ꝑ deputation . mes en le com̄on ley est ꝓperm̄t prise p̄ l' evesque de chesc̄ dioces , q̄ est le voier ordinary p̄ certifier excommengement , loyal matrimony , & tiels ecclesiastical & spiritual acts deins ses dioces , as judges ● l com̄on ley ; car il est le party a q̄ le court doit escrier sur tiels occasions . et uncore cest parol ordinary est usualment prise en le common ley & les statutes p̄ chescun commissarie ou official ● l evesque ou auter judge ecclesiastic̄al que ad judicial authority deins son jurisdiction , come appiert en coke , l. . henfloe's c. fol. . b. & le statute westm . . c. . & e. . c. . & plusors auters . orfgild . orfgild est pecudis solutio vel redditio , de sax. orf. pecus , & gild , solutio , redditio . ouster le maine . ouster le maine ( amoveas manum ) est un brief direct al escheator , pur deliver seisin ou possession hors des maines le royal partie que sue le brief , pur ceo que les terres seisies ne sont tenus del roy , ou pur ceo que il ne doit aver le gard de eux , ou pur ceo que le title le roy est determin̄ , &c. est auxy le judgment done en un monstrance de droit , ou sur un travers ou petition : car quant appie ● t sur le matter discusse q̄ le roy nad droit ou title al chose que il seise , adonque judgment serra done que l ● s maines le roy sont oustes ; & sur ceo un amoveas manum serr̄ agard al escheator ; que est tant sicome judgment fuit done que le party averoit son terre arere . et veies pur ceo stamford praerog . cap. . outfangtheef . outfangth ● ef est , quod latrones de terra vestra vel feodo vestro extra terram vestram vel feodum vestrum capti , ad curiam vestr̄ revettantur , & ibidem judicentur . outlary . outlary . veies utlary . owelty . owelty est , quant il y ad seignlour , mesne , & tenant , & le tenant tient del mesne ꝑ mesme les services que le mesne tient ouster de le sn̄r paramount : come si le tenant tient del mesne per homage , fealty , & xx s. de rent annuelment , & le mesn̄ tient ouster de l' sn̄r paramount ꝑ homage , fealty , & xx s. rent auxy ; cest appelle owelty de services . oyer de records & faits , &c. oyer de records & faits est , ou un action de det est port envers un home sur un obligation , & le defendant appeare , & donques prie que il poit oyer le obligation ovesque que le plaintife charge luy . issint est quant executors port un action de det , & le defendāt demād oyer del testament ; sur cest demand il serra lie al luy . mes si soit en un auter terme , ou apres que le defendant ad imparle , donq̄s il navera le oyer . et issint come est dit de faits , est destr̄ entende de records que sont alledge envers luy . mes en b. r. le defendant poit al ascun temps devant plea , & le plaintife aver oyer del fait ou record . veies le title monstrans de faits . oyer & terminer . oyer & terminer est brief appel en latin de audiendo & terminando , & gist qn̄t asc ' grand ou sodain̄ insurrection est fait , ou asc ' auter sodain transgression , que requir̄ hasty reformation ; donque le roy directera un commission a certain justices de audiendo & terminando . nota que les justices de assise ont un commission de oyer & terminer direct al eux , & divers auters inhabitants deins les counties as queux ● ut circuit extende , dont chesc ' de les justices de assile sont del quorum , pur le meulx oyer & determiner de divers offences queux poient avener en lour circuit , quel sans cel commission cux ne poient fair ' . veis fitzh . n. b. fol. . b. p. paine fort & dure . paine fort & dure est un particular punishment pur tiels que esteant arraign̄ pur felony , refusont de mitter eux mesmes fur le usual trial de dieu & le pais , & per ceo sont mute , ou come mute en ley. veies ceo a large en stamford . pl. cor. fol. . palace-court . palace-court est un court de record erect per le roy james , per ses letters pattents teigne a southwark , & est un court de common ley. veies marshalsea . pannage . pannage . veies paunage . pannel . pannel venust del parol francois panne , id est , pellis , & signifie en nostre com̄on ley un schedule ou rolle que conteine les nosm̄s des jurors queux l' viscount ad retorn de passer sur ascun trial. et pur ceo le impanneller del jury nest riens forsque le entry de lour nosmes en le rolle le viscount . pape . pape ( papa ) est un nosme q̄ signifie pater , & ancientment fuit apply al auter clergy-men en le grec esglise ; m. s. ꝑ usage est particulerment approprie en le latin esglise al evesque de rome : nn nosme mult frequent en nostre ancient annuels livres , specialm̄t en le temps de ceux roys , queux , grandm̄t abandonants leur imperial authoritie , & abasans eux mesmes debase lour estate , suffer un alien , un outlandish evesque , que inhabit miles d'eux , ne toller d'eux le disposition de pluseurs spiritual preferm̄ts , ascun temps ꝑ lapse , & ascun temps per provision , ou auterm̄t . pur redresse 〈◊〉 quel divers statutes ont este fait pendant que le royalme fuit de la roman communion ; mes tout son povoir ne suit tolle iesque vers la fin del roigne de roy henry le huict . paramount . paramount est un ꝑol compoūd ● s deux ꝑols francois , ( par , i.e. per , & monter , i. e. ascendere ; ) & signifie ē nr̄e ley le plus hault s ●̄t del fee. pur le melieur entelligence de ceo , veies f. n. b. f. m. en son br̄e 〈◊〉 mesne . paraphernalia . paraphernalia , graece 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 praeter , & 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dos . quare paraphernalia sunt bona que sponsa secū fert praetercōstitutā dotē . cro. d. hastengs vers . douglas . paravaile . paravaile est ū ꝑol q̄ auxy est cōpound de deux ꝑols francois , ( par i. e. per , & availer , i.e. dimittere ; ) & signifie en nr̄e ley le plus base tenant del free , que est tenāt al ūque tenust oust ' del aut ' veies p̄ l use de cest ꝑol f. n. b. en son br̄e de mesne , f. . m. parceners . parceners sont solonque le course de common ley , & solonque le custome . parceners solonque le common ley sont , lou un seisie d'un estate d'enheritance des tenements ad issue forsque files , & devie , & les tenements discendont a les files ; donque ils sont appel parceners , & sont forsque un heire . mesme le ley est , si neyt ascun issue , & que ses sores serroint ses heires . mes si home ad frrsque un file , el nest dit parcener , mes ● a file & la heire . et fi ne sont files ne sores , les terres descenderont a les aunts , & els sont parceners . quant tr̄es discendont a divers parceners , els poient faire partition enter eux per agreement ; mes si asc ' d'eux ne voilent faire partition , donque les auters averont un brief de partitione facienda direct al viscount , que ferra partition enter eux per le serement de xij . loyals homes de sa bailywike . auxy partition per agreement poiet estre fait ꝑ le ● ey , auxy bien per parol sans fait , come per fait . et si ils sont ● pleine age , la partitiō touts jours demurrera , & ne serra unques defete . mes si les tr̄es sont a eux en le taile , com̄t que ils sont concludes durant lour vies , uncore l' issue cestuy que ad le meinder part en value poit disagree a la partition , & ent ' & occupier ē common ovesque l' auter part . et si les barons des parceners sont partition , quant le baron devie la feme poir disagreer a la partition . aux ' si le parcenerque e ● deins age fait partition , quant el vient a son pleine age el poit disagreer . mes el covient b ● en garder quant el vient a son pleinage , q̄ el ne preigne routs les profits a sou use demesne des tr̄es que fueront a luy alottes ; car donques el soy agree al le partition : & le pleine age serra touts foits entende al age de ans . auxy si sont divers parceners que ont fait partition enter eux , & le part d'un soit recover vers luy ꝑ title loyal ; donques el compellera les auters de faire novel partition . parceners solonque le custome sont , lou home est seisie de tr̄es en gavelkind , come en kent , & auters lieux franchises , & ad issue divers fits , & devie ; donque les fits sont parceners per le custom . parco fracto . parco fracto est ū br̄e que gist vers cestuy q̄ enfreint asc ' poūd , & prist hors 〈◊〉 ceo ascuns avers queux sont la loyalment impounds . veies de ceo f. n. b. fo . . e. park . park est un lieu en q̄ per perscripc̄on ou ꝑ grant de roy , un subject preserve son game des avers ferae naturae . veies stat. westm . . e. . cap. . parliament . parliament , veies le sn̄● cooks institut . & monsieur cowels interpreter , title parliament . parson imparsonee . parson imparsonee est cestui q' est ē possession dun esglise appropr ou ꝑsentative ● car issint est use ē ābideux cases ē dyer , f. . b. & f. . b. parties . parties al fine on fait sōt ceux queux sont nosmes en faits ou fines come parties a ceo ; come ceux queux levie le fine , & ils a que le fine est levie . et ils que sont un fait de f ● offm̄t , & ils a que il est fait , sont appelles parties al fait : & issint en auters semblables cases . nota , que si un indenture soit fait enter deux cōe parties a ceo ē le cōmencement , & en le fait un d' eux grant ' ou lessa un chose al un auter que nest nosme en le cōmencement , il nest partie al fait , ne prendra riens per ceo . partition . partition est un division de terres descendus per se common ley , ou per custome , perenter coheirs ou parceners , ou ils sont deux al meines , soient ils fitz , fils soers , aunts , ou autenment de kin al an ● e our de que le terre discende al eux . et cest partition est sait quater voies p̄ le pluis part ; de que trois sont al pleasure & ꝑ agreement ꝑenter eux , le quart est per compulsion . un partition per agreement est , quāt ils mesmes divide le tr̄e equalment en tants parts cōe la sont d'eux coparceners , & chesc ' d' eslier un share ou part , l'eigne primerm̄t , & issint l'un apres l'auter , cōe ils sont d'age ; si non que le eigne per consent fait le partition , donques l'election appertiēt al ꝓcheine , & issint al eigne darreinement , accordant cōe il est dit , cujus est partitio , alterius est elictio . un aut ' partition per agreement est , quant ils essiont certain de lour amies de faire division pur eux . le tierce partition per agreement est , per trahens de lots , issint : primerm̄t de divider le tr̄re en tants des ꝑts come la sont parceners ; donques a scriber chesc ' part severalmēt ē ū petit scroll , ou peece 〈◊〉 paper ou parchm̄t , & ● mitter ceux scrolls close en un hat , cap , ou auter tiel semblable chose ; & donq̄s chesc ' parcener , un ap̄s auter , come ils sont d' age , a traher un peece ou scroll ēque est escript un part del tr̄e , que per cest trahens est ore severalment allotte al eux en fee-simple . le quart partition , que est per compulsion , est , lou un ou ascuns d' les coparceners violent aver partition , & auters ne voilent agreer a ceo ; donques ceux que issint voilent aver partitiō poyent porter un brief de partitione facienda envers les auters queux ne voilent faire partition , per vertue 〈◊〉 quel ils serront compel ● parter , &c. en kent , lou les terres sōt d' gavelkind-nature , ils appel a cest jour lour partition shifting , il mesme parol que les saxons use , nosmem̄t shiftan , que signifie pur fair partition perenter coheires , & p̄ assigner a chescun 〈◊〉 eux lour portion . en latin est appelle herciscere . partition auxy poit estr̄ fait per joyntenants ou tenants en common per lour assent , ꝑ fait enter eux , ou ꝑ brief , ꝑ les statutes 〈◊〉 h. . cap. . & . h. . cap. . pasport . pasport est un parol mention en le statute e. . cap. . & signifie un licence fait per asc ' que ad authority , pur le safe passage ● ascun hōe del un lieu al auter . patron . patron est celuy q̄ ad l'advowson d' ū parsonage , vicarage , frāk-chappel , ou tiels sēbl ' spiritual promotiōs , appertient a son mannor , ou auterment en grosse , & per ceo poit ou doit doner mesme l' benefice , ou present a ceo , quant & cy toft q̄ il devient voide . et cest esteant patron , ou patronage , ad commencement pur l' pluis part per un 〈◊〉 ceux troies voyes : nosmem̄t , ou ratione fundationis , pur ceo quel ' patron ou ses auncestors , ou ceux 〈◊〉 q̄ il claime , fueront founders ou edifiers de l' esglise ; ou ratione donationis , pur ceo q̄ ils endowe ou done terres al ceo pur maintenance ; ou auterm̄t ratione fundi , pur ceo q̄ le esglise fuit mis ou edifie sur lour soile ou terre : & divers temps ꝑ reason de touts trois . paunage ou pannage . paunage ou pannage , ( pannagium ) est ceo argent que les agistors des forrests collect pur l' feeder des porcels deins l' forrest , & est auxy prise pur touts manners del mast des arbres deins l' forrest , ● q̄ les porcels feed . veies manw. for. leys , c. . f. . a. peers . peers sont ceux q̄ sont impan̄els en un enquest sur ascun home , pur l' convicter ou acquiter d' luy d' asc ' offence pur que il est en question . le reasō d' ql ' appellation de jury est p̄ ceo , que peers venust del latin pares , id est , egals ; & le custome 〈◊〉 nostr̄ nation est , pur trier chescun home per ses egals , cestascavoire , per ses peers . et issint appiert ꝑ l' statutes de mag. charta , cap. . & west . . cap. . cest parol est auxy use pur le nobility del realm & les seigniours del parliament , queux sont appelles les peers del realm . et de ceo veies stamf. pl. coron . lib. . cap . fol. . perambulatione facienda . perambulatione facienda est un br̄e q̄ gist lou sn̄ries gisont un pres lauter , & ascun encrochment est fait ꝑ long tēps ; donq̄s ꝑ assent 〈◊〉 ambi ● seigniours , l' viscount prendera ovesq , luy les parties & les vicines , & fieront perambulation , & fieront les meres come ils fueront a devant . mes si un seigniour encroach sur lauter , & ne voile faire perambulation , donques le seigniour issint grieve avera brief vers lauter , que est appelle de rationalibus divisis . perjury . perjury est ū corrupt ou voluntary faux serement done en chancery ou en evidence al enquest sur tryal ● un issue al common ley . vide stat. el. cap. . perinde valere . perinde valere est ū terme que appent al ley ecclesiastical , & signifie un dispēsation graunt al ū clerk , que nesteant capable ● un benefice ou auter ecclesiastical function est de facto a ceo admit . et avoit cest appellation des parols que sont l' faculty cy effectual al party , sicōe il fuit actualment capable del chose pur que il ad son dispensation al temps de son admittance . pernor de profits . pernor de profits est il que pren ● les profits . pernor de profits & cestuy que use est tout mesme , coke , lib. . casu chudley , fol. . mes un poit . ēe pernor , &c. & non cestuy q̄ use per title mes per covyn , quel veies coke . , . co. ent. . leo. rep . . anderson . . stat. . h. . . perpetuity . perpetuity est use en ley ou un estate est issint design destre settle en tall , &c. q̄ ceo ne poet ēe defait ou anient . quel le state angleterr ne poit porter , come est dit in fine casus , moo . rep . , . cok. . . . co. . . & lib. . . per quae servitia . per quae servitia est un brief judicial , q̄ issuist del note ● un fine ; & gist pur l'conusee d'un man̄or ou seigniory , pur compel cestuy que est tenant del terre al tēps del fine levy p̄ attourne a luy . et de cest brief veies vieux n. b. fol. . a. perquisites . perquisites sont advantages & profits queux vient al un man̄or ꝑ casualty , & non annuelment ; come escheats , harriots , reliefes , walfes , estrayes , forfeitures , amerciam̄ts ē courts , biēs & terres purchase ꝑ villeins de m̄ l' man̄or , fine del copiholds , & divers semblables choses queux ne sont certaine , mes happe per chance , ascun temps pluis often que a auter temps . vide perkins fol. & . personalty . personalty : come le action est ē personalty , cest ascavoir , port envers le droit ꝑson , ou le person envers q̄l en ley il gist . petit cape . petit cape est un brief q̄ gist quant ascun action real , cestascavoire , de plee de terre , est port , & le tenant appeare , & puis fait default ; donques issera cest petit cape , de seiser les terr̄s in maines le roy. mes sil ne apper ' al primer sum̄ons , donques issera un graund cape ; & pur tiel default le tenaunt perdra la terre . mes sil gage son ley de non-summons , i le saver son default , & donques il poit pleade ovesque le demandant . et in graund cape , le tenant serra summon pur responder al default , & ouster al demandant : mes en petit cape il serra summon pur responder al default solement , & nemy al demandant . et est appelle petit cape , pur ceo que il ad minus en cel brief que en lauter . pettybag . pettybag est un office en le court de chancery pur suits , pur & envers les attornies & officers de cel court. et pur process & proceedings ꝑ extents sur statutes & recognisances : ad quod damnum , &c. parva baga dicitur . petit serjeantie . tener ꝑ petit serjeantie est sicome un home tiēt de roy terres ou tenemēts , rendant a luy un cuttel , un escue , un setr ' , un arc sans cord , ou aut ' semb ' service , a la volunt le primer feoffor ; & la nappent gard , marriage ne relief . et nota , que hom̄ ne poit tener per grand serjeantie ne per petit serjeantie , si non del roy. veies le stat. . car. . cap. . piccage . piccage ( piccagium ) est le payment des deniers , ou les deniers paies pur le infriender del soile p̄ erecter tents ou settles en faires . picle ou pitle . picle ou pitle , semb ' de ven̄ del italian piccolo , parvus , & signifie ovesque nous un petit close ou inclosure . pillory . pillory est ū engine ● l penance ordein̄ ꝑ le statute de h. . p̄ le punishm̄t des pistors ; mes a ore use p̄ plusors auters offendors . et est appel en latine collistrigium . pipowders . pipowders est un court que est incident a chesc ' fair̄ , p̄ le determination de differences sur cōtract & routs disorders en c̄ commise . veies pluis de ceo cromp. jurisd . fol. . coke . lib. . fol. . piscary . piscary est un liberty del pischer en le ewe ● un auter , ou de soy mesme . placard . placard est un parol use en les statutes de h. . cap. . & & m. cap. . & signifie un licence pur user illoyal games , ou de shooter en un bombarde . plaintiff . plaintiff est celuy que sue ou complain en un assise , ou en un action personal , come en un action de det , trespas , disceit & detinue , & tiels semblables . pledges . pledges sont sureties 〈◊〉 real ou formal queux le plaintiff trove a prosecuter son suit . pleading . pleadings sont touts acts del parties al suits apres le count ou declaration ; nosemement ceo que est containe en le barr , replicat ' , & rejoyn ● , & non ceo conteiū en le count m̄ : & p̄ ceo defaults ē le matt ' del coūt ne sont comprise deins mispleading , ou insufficient pleading , ne sont remedie per le statute de jeosailes , h. . mes sole ● t ceo mispleading ou insufficient pleading commit en le barre , replication , & rejoynder , sont la provide . mes veies ceux auxy ore remedies per le statute eliz. cap. . plenartie . plenartie est qn̄t un benefice est plene , directm̄t opposite al vacation , q̄ signifie l' avoidance ● ' un benefice . stamf. prerog cap. . fol. . plevyn , see replevyu . pluralities . pluralties sont ou vicar ou rector avoit deux ou plusors ecclesiastical benefices pur ● quel vide statute , h. . cap. . policy del assurance . policy del assurance est un course prise ꝑ merchants pur l' assurer des lour advētures sur le mer , ꝑ doner un certain proportion ꝓ centum pur le securer del safe retourn̄ del neife & tant des merchandizes sur que est agree . et de ceo poies lier ē le statute de eliz. cap. . sur quel un action gist al common ley ou en le court ( ꝑ literes patents le roy ) seant a le royal exchange en londre , les judges de quel sont civilians , common lawyers & merchants . pone . pone est un brief per que un case q̄ depend en le county-court est remove en le commen plees . veies pur ceo veil . n. b. fol. . a. pontage . pontage est un parol mention en divers statutes : com̄ ē westm . cap. . h. . cap. . & eliz. cap. . & signifie asc ' soits le contribution collect pur le reparation dun pont ; ascun foits le tolle pay per passengers a ceo purpose . portgreve , veies viscount , portmoot . portmoot est un parol use en le statute de eliz. c. . & signifie un court tenus en un port-ville . possessio fratris . possessio fratris , est ou un home ad fits & file per un venter , & un fits per auter venter , & morust , le primer fits enter & devy sans issue , la file avera la terr' cōe heire a son frere coment q̄ le second fits est heir a son pere . litt. sect. . possession . possession est deux voies ; ou actual , ou en ley. actual possession est , quāt un home enter en fait en terres ou tenements a luy discende , ou auterment . possession en ley est , quant terres ou tenements sōt discende al un home , & il nad uncore realment , actualment , & en fait enter en eux . et il est appell ' possession en ley , pur ceo que en le oiel & consideration del ley il est pense destr̄ en possession , entant que il est tenant a chescun actiō que asc ' voit suer concernant mesm̄s les tr̄es ou tenem̄ts . post diem . post diem est le returne d' un brief apres le jour assign p̄ le returne de ceo . postdisseisin . postdisseisin . vide de ceo devant en le title assise . postea . postea est le record des ꝓceedings sur un trial per un brief de nisi prius que est returne apres le trial per le judge devant que fuit trie en le court lou l' action primerment commence , daver judgement la done sur le verdict : & est appelle le postea pur ceo que , &c. poundage . poundage est un subsidy al value de duodize deniers en le liver , q̄ est grant al roy ꝑ chescun merchant cy● iē denizen cōe alien , p̄ touts manners des merchandizes exports & imports . et des tiels subsidies veies le statutes de & e. . c. . & jac. c. . & car. . c. . auxi ꝑ le statute de el. cap. . chescun viscount est allow poundage p̄ levier debt ou damages ꝑ execution . pounds . pounds sont en deux sorts ; lun pound overt , le auter pound close . pound overt est chescun lieu en que un distresse est mis , soit ceo common pound , ou back-side , court , yard , pasture , ou auterment quecunque lou le owner del distresse poit vener a doner eux viand , sans offence pur lour esteant la , ou son vener la. pound close est tiel lieu lou le owner del distresse ne poit vener a doner eux viand sans offence ; come en un close meason , ou quecunque auter lieu . preamble . preamble ad son nosme de le preposition ( prae ) devant , & le verb ( ambulo ) pur vaer ; issint joynt ensemble , ils sont un compound verb ( praeambulo ) p̄ vaer devant ; & de ceo le primer ꝑt ou cōmencement de un act est appelle le preamble de le act , le quel est un cliffe de overer les ments del feasors del act , & les mischiefs que ils entende de remedie per ceo . come p̄ example , le statute fait al westm . le primer , le cap. que doū attaint , le preamble de q̄ est issint : pur ceo que ascuns gents de la terre doutant meins faux serement fair̄ , que faite ne duissent , per que multes des gents sont disherites , & perdent lour droir purvey , &c. prebend & prebendary . prebend & prebendary sont parols piusors soits uses en nr̄e livres , & ils veignont del latine ( praebeo ) prebend est ceo part ou portion que chescun member ou canon dun cathedral esglise receive en le droit son lieu pur son maintenance : & prebendary est cestuy q̄ avoit tiel prebend . praecipe ou praecipe in capite . precipe in capite est un brief que gist lou le tenant tient del roy en chiefe come de sa corone , & il est deforce , cest adire , ouste de son terre ; donques il avera cest brief , & il serra close , & serra plede en le common banke . auxy si ascun tenant que tient de ascun seignior soit deforce , luy covient suer brief de droit patent , que serra determine en le court le seignior . mes fi le terre soit tenus del roy , le brief de droit patent serra port al court le roy : & cest brief poit estre remove de la court de seignior en le countie per un tolt , & de le countie en common banke per un pone . ideo veies devant titulo droit . praecipe . praecipe sont de divers sorts , quod reddat terras , come dower , formedon , &c. debitum , bona & catalla . quod teneat conventionem , quod faciat sectam ad molendinum , quod permittat , &c. preignotary . preignotary est compound des deux parol ' latinois ( prae & notarius ; ) & est use en nostre ley pur le chief clerks des courts le roy , dont la est un ē bank le roy , & trois en le common bank , cestuy en bank le roy record touts actions civils sues en ceo court : & ceux ● l common banke inrolle touts declarations , pleadings & judgments , & font hors touts judicial briefs , ils inrolle touts fines & recognisances , & exemplifiont touts records m̄ le term̄ devant que les rolles sont ball hors de lour malūs . en e. . b. cest officer est appel praesignator : et un des trois ē common bank , praesignator pauperum . premisses . premisses . veies habendum . praemunire . praemunire est un brief q̄ gist lou ascun home sue ascun auter ē court christian pur ascun chose que est determinable en le court le roy ; ꝑ quel grand punishment est ordain per pleuseurs statutes ; cestascavoire , que il serra hors de protection le roy , & mis en prison sans baile ou mainprise , tanque il ad fait fine al volunt le roy , & que ses terres & chateux serront forfeits si il ne veigne deins deux mois . et son provisors , procurators , attornies , executors , notaries , & maintainers , serront punish en mesme le manner . ideo vide statutum . auxy ascuns diont , que si un clerke sue auter home en court de rome pur chose spiritual , lou il poit aver remedie deins cest realme en court son ordinarie , que il serra en le case de le statute . et sur divers aut's offences est impose , ꝑ statutes depuis fait , le penaltie que eux incurre queux fueront attaints en praemunire : come per el. cap. . ceux que aidont a fair̄ corrupt bargain , sur que usurie est reserve ouster l. en le hundred pur l'an &c. prender . prender est potestas aut jus quicquid accipiendi antequam offertur ; a francois prendre , i. accipere . prescription . prescription est , quant un person claime asc ' chose , pur ceo que il , ses ancestors ou predecessors , ou eux que estate il ad , ont ew ou use ceo dont nul memorie curt al contrary . mes un ne poit p̄scribe encounter un statute , si non que il ad auter statute que serve pur luy . presentment . presentment est aequivocum . l'un est al esglise : comēt quant ascun home ad droit a doner ascun benefice spiritual , & nosme le ꝑson al evesque a que il voet le doner , & fait un letter al evesque pur luy , ceo est un presentation ou presentment . si divers coheirs ne poyent accorder en presentment , le presentee de l'eigne serra admitte . mes si joyntenants & tenants en common ne accordant deins les size moys , l'evesque presentera per laps . l'auter est un presentment ou information ꝑ ascun jurie en un court , devant asc ' officer la q̄ ad authorite de punisher asc ' offence fait contrarie al ley. pretensed droit ou title . pretensed droit ou title est , lou un est en possession de terres ou tenements , & un auter que est hors claime ceo , ou sue pur ceo : ore le pretensed droit ou title est dit en luy que issent sue ou claime . et si il pluis vient a le possession , son droit ou title est annexe al terre & possession , & nient donque appel droit . primer seisin . primer seisin est use en le cōmon ley p̄ un branch del prerogative le roy , ꝑ que il ad le prim̄ possession , cestascavoir̄ , les intire profits p̄ un an des touts les terres & tenements dont son tenant ( que tenus de luy ē chief ) morust seisie en son demesne cōe de fee , son heire adonque esteant ● plein age : & c ' le roy prist en lieu des intire profits queux il poit p̄nder , sil voit , tanques liverie soit sue , ou al meins tender . prerog reg. c. . & stanf. f. . b. veies le stat. car. . c . prisage . prisage est ceo part ou portion que appertein al roy hors des tiel merchandises queux sont prises al mer ꝑ voy le loyal prise et cest parol vous trovers en le statute eliz. c. . prisage des vins . prisage des vins , mention ē le stat. h. . c. . est ū custome ꝑ que le roy hors chesc ' barke lade ove vine , south tun , claime d' aver deux tun a son prise demesne . privie , ou privities . privie ou privities est , lou un lease est fait a tener a volunt , p̄ ans , p̄ vie , ou un feoffment en fee , & en divers auters cases ; ore ꝑ cause ● ceo que a ● passe ꝑenter ceux parties , ils sont appellus privies , en respect de strangers , ꝑenter queux nul tiel conveyances ad estre . auxy si soit seignior & tenant , & le tenant tient del seignior per certaine service , il y ad un privitie perenter eux , ꝑ cause 〈◊〉 tenure : & si le tenant soit disseise ꝑ un estranger , il ad nul privitie perenter le disseisor & le seignior , mes le privitie uncore demurt perenter le seignior & le tenant que est disseisie , & le seignior avowra sur luy , p̄ ceo que il est son tenant en droit , & en le judgment del ley. privies sont en divers sorts , come nosment , privies en estate , privies en fait , privies en ley , privies en droit , & privies en sanke . privies en estate est , lou un lease est fait del mannor de dale , al a p̄ vie , le remaind ' al b en see ; la & a & b sont privies en estate , car lour estates fuer̄ faits ambideux al un temps . et issint est en le prim̄ case cy , ou un lease est fait al volunt , pur vie , ou ans , ou un feoffment en fee , les lessees ou feoffees sōt appels privies en estate , & issint sont lour heirs , &c. privies en fait est , lou un lease est fait pur vie , & ap̄s ꝑ un auter fait le reversion est grant al un stranger en fee ▪ cest grantee del reversion est appel privie en fait , pur ceo que il ad le reversion ꝑ fait . privie en l ● y est , lou il est seignior & tenant , le tenant lessa le tenancie p̄ vie , & morust sans heir , & le reversion escheat al seignior ; il est dit privie en ley , p̄ ceo que il nad son estate solem̄t per le ley , cest adire , per escheat . privie en droit est , lou un possesse d' un terme pur ans granta son estate al un auter sur condition , & fait ses executors , & morust ; ore ceux executors sōt privies en droit ; car si le condition soit enfreint , & ils entront en le tr̄e , ils averont ceo ē le droit de lour testator , & a son use . privie de sanke est l' heir de le feoffor ou donor , &c. item si un fine soit levie , les heires de celuy que levie le fine sont appel privies . privileges . privileges sont liberties & franchises grant al un office , lieu , ville , ou mannor per le grand charter del roy , letters patents , ou act de parliamēt : cōe toll , sake , socke , infangtheefe , outfangtheefe , turne , ordelf , & divers tielx , semblables ; p̄ q̄ux veies en lour ꝓper titles & lieus . auxi sont auters privileges d'ont le ley prist cognuzance cest ascavoir , les privileges des commons , & peers del parliament , & privileges des attorneys & officers des courts a westm . q̄ ils ne serront sue ou implead en auter court , q̄ en ceux ou ils sont artorneys ou officers . procedendo . procedendo est un brief que gist lou ascun action est sue en un court , que est remove a un pluis hault , cōe al chancerie , banke le roy , ou common banke , per brief de privilege ou certiorari : & si le defendant , sur le matter monstre , nad cause de privilege , ou si le matter en le bill sur que le certiorari issu st ne soit bien prove , donques le plaintiff avera cest procedendo pur remaunder le matter al primer base court , la destre determine . proces . proces sont les briefs & precepts que issuont sur l'original . et en actions real & personal sont divers sorts de proces : car en actions real le proces est grand cape d ● vant appearance : ideo vide de ceo en le title petit cape . mes en actions personal come en dette trespasse , ou , detinue , le proces est ū distresse : & si le visc ' return nihil habet in balliva , &c. donques le proces est alias capias & plures , & un exigent ; & ils sont appelles capias ad respondendum . auxy le exigent serra cinque soits ꝓclaime ; & si le partie n' appeare , il serra utlage . mes en divers actions sont divers manners de proces , que est pluis alarge declare en n. b. auxy sont divers auters proces apres appearance , quant les ꝑ ● ies sont al issue , pur faire l'enquest appearer : come un venire facias ; & sils ne appearont al jour , donques un briefe de habeas corpora jurat ' & apres un brief de distringas jurat ' . auxy sont divers auters proces apres judgm̄t ; come capias ad satisfaciendum , & capias utlagatum , &c. capias ad satisfaciendum gist lou home est condemne en ascun det ou dammages donques il serra arrest per cest brief , & mis en prison sans bail ou mainpr ● se , tanque il ad pay le det & les dammages . capias utlagatum gist lou un est utlag ● , donq's il serra prise per tiel brief , & mis en prison sans baile ou mainprise , p̄ ceo que il ad fait contempt encounter le ley. auxy sont auters proces & briefs judicials , come capias ad valentiam , fieri facias , scire facias , & plusors auters : & ideo vide c'en lour titles . prochein amy . prochein amy est communement prise pur gardian en soccage , & est lou un home seisie de terres tenus en socage morust , son issue deins age de ans , donques le ꝓcheind ' sank , a que les tr̄es ne poient discender , avera le gard del heire , & del terre , al use solem̄t del heire tanque il vient al age d' an̄s ; & donques le heire poit enter , & luy ouste , & amesner luy de accompter : mes en cest accompt il avera allowance p̄ touts reasonable costs & expences bestow ou sur le heire ou son terre . le prochein amy , ou prochein de sanke , a que le inheritance ne poit discend , est issint destre entende : si les terres discenda al heire de son pere , ou ascun del sanke del part son pere , donques l' mere , ou aut ' del part l'mere , sont appelle ꝓchein de sanke , a q̄ le inheritance ne poit discender ; car devant que il issint discendra , il pluis tost escheater̄ al sn̄r d' que il est ten̄ . et lou les terres vient al heire de sa mere , ou ascun del sa part , donque le pere , ou auter del part son pere ; sont appelle le prochein de sanke , a que le inheritance ne poit ● iscend , mes pluis tost escheatr̄ al seignior 〈◊〉 que il est tenus . auterment prochein amy est celuy que appiert en ascun court pur un enfant que sue ascun action , & que ayde le enfant de pursuer son suit : dont vide les statutes de westm . . c. c. . & westm . . cap. . que un enfant ne poit faire attourney , mes le court poit admitter le prochein amy pur le plaintiff , & un gardian pur le enfant defendant cōe son attorney . proclamation . proclamation est un notice appertment done de ascū chose de que le roy soi pleirot d' advertiser ses subjects : issint il est an. . r. c. . proclamation de rebellion est un overt notice done ꝑ l' officer , que un home nient apparent sur un subpoena ou attachm̄t en le chancery , serra repute destre un rebel , sinon que il loy mesme render al jour assigne , crompt . jurisd . fol. . et est destre observe , que nul poit faire proclamation mes ꝑ authoritie del roy , ou majors , & hujusmodi que ont privileges en cities ou boroughs de ceo faire , ou ont ceo use per custome . et pur c ' ou un executor fist proclamation en certain marketvilles , que les creditors veigneta , ꝑ certain jour , & claim & provera ● our dets due per le testator , & pur ceo que il ceo fist sans authority , il fuit commit al fleet , & mise a un fine . broke proclamation . procurator . procurator est use pur luy que collige les fruits de un benefice pur un auter home . anno ric. . stat. . cap. . prohibition . prohibition est un brief q̄ gist lou hōe est emplede en court christian de chose q̄ ne touch matrimonie , ne testam̄t , ne merem̄t dismes , mes l' coron̄ nostr̄ seigniour le roy. cest brief serra direct auxybien al ꝑtie , come al judge , ou son official , de eux prohibite q̄ ils ne pursue ouster . mes si il appeare apres a les judges temporal , que le matter est destre determine en l'spiritual court , & nemy en le court temporal , donque le party aver̄ un br̄e de consultation , commandant les judges de le court spiritual de proceeder en la primer plee . auxi sont mults auters prohibic̄ons sicome al admiralty , & la ascun court de common ley s'ils exceed lour poiar . property . property est le pluis halt droit q̄ hōe ait ou poit aver al asc ' chose , q̄ riens depēd sur l' courtesie dasc ' auter home : et ceo nulluy en cest realm poit estre dit daver en ascun terres ou tenemēts , forsq̄ solem̄t le roy ē le droit de son corone , pur ceo que touts les terres ꝑ le realm sont en le nature de fee , & tiendront mediatem̄t ou immediatem̄t del coron̄ . cest parol nient obstant est ufe pur tiel droit ē terres & tanem̄ts q̄ cōmon ꝑsons ont en m̄ . et la sont trois man̄ers de droits de property ; cestascavoire , property absolute , property qualified , & property possessory : de q̄x veies a large cok. l. . case de swans , f. . proprietary . proprietary est celuy q̄ ad ū property en asc̄ chose : mes il est pluis cōmunement use pur luy que ad les profits dun benefice a luy & ses heirs , ou a luy m̄ & ses successors , cōe en tēps par devāt abbots & priors avolent . protection . protection est un brief q̄ gist lou home voit passer ouster le me in le service le roy , donq̄s il avera cest br̄● e. & ꝑ cest br̄ē il serra quite de touts manner des pleas enter luy & ascun auter ꝑson , except plees de dower , quere impedit , assise de novel disseisin , ultime praesentationis , & attaints , & plees devant justices en eyre . mes sont deux briefs de protection ; un cum clausula volumus , & lauter cum clausula nolumus , cōe appiert en le register . mes protection ne serra allow en ascun plee commence devant le date de ceo , si ne soit en voyages ou le roy mesme passa , ou auters voyages royals , ou en messages le roy pur besoignes de realme . protection ne serra allow pur vitailes achates pur voyage dont le protection fait mention , ne in plees de trespasse , ou de contracts fait puis le date de mesme le protection . nota , que ascun poit attacher ou commencer ascun actiōn real vers cestuy q̄ayt tiel protection , & en ceo proceder , tanque le defendantveigne & monstre son protection en le court , & ayt ceo allow , & donque son plee ou suit serra mis ians jour . mes si ap̄s il appierit que le party que ad le protection ne ala entour le besoigne pur que il ayt ceo , donq̄s le demandant avēr un repeal de ceo . et sil va , & return apres le besoigne finie , le deman ● an t avera un resummons de recontinue le former suit. protection . protestation est un form̄ d' pleading , qn̄t ascun ne voit directm̄t affirmer , ne directment denier ascun chose q̄l est alledge ꝑpauter , ou que il m̄ alledge . et est en deux manners . l'un est , qn̄t un pleade ascun chose que il ne ofast directment affirmer , ou ne poit pleader pur doubt de fair̄ son plee double . cōe si en conveying a luy title a ascun terre , il doit pleader divers discents ꝑ divers ꝑsons , & il nosast affirmer que eux touts fueront seisies al tēps de lour mort , ou coment il ceo purroit , ceo serra double a plead deux discents ; de queux ambideux chescun per luy poit estre bone barr. donques le defendant doit pleader & alledges le matter , enterlacing cest parol protestando , come adire , que tiel obiit ( protestando ) seisie , &c. et ceo est destr̄ alledge ꝑ protestation , & nemy traversable ꝑ lauter . auter protestatiō est , qn̄t ū est de responder al deux choses , & tamen per le ley il doit plead forsque al un ; donq̄s en le primer ꝑt del plee il dirra al un matter , protestando , & non cognoscendo cel matter estre voyer , & faire son plee ouster ꝑ ceux parols , sed pro placito dicit , &c. et ceo est pur salvation al partie ( que issint plead ꝑ protestation ) destre conclude ꝑ asc matter alledge ou object encounter luy , sur que il ne poit joyner issue ; & fiest auter chose mes un exclusion del conclusion ; car il que prist protestation exclud ' laut ' ꝑtie de cōcluder luy . et cest protestation doit estoyer ove le sequel del plee , & nemy destr̄ repugnāt , ou auterment contrarie . provendry . provendry ē l'esglise de sarum est appel minor pars altaris in ecclesia beatae maria sarum , e. . . b. provision . provision est use ovesque nous com̄ est ē le canon ley , pur le provider dun evesque ou auter ecclesiastical person dun ecclesiastial benefice ꝑ le pape devāt q̄l incumbent de ceo soit mort ; le grād abuse 〈◊〉 q̄ appiert ꝑ pluseurs statutes q̄ ont este faits en touts ages del temps e. . tanque le reigne h. . per le avoid ' des tiels provisions . ra. entr. qua. impedite roy . . priviso . proviso est un cōdition ensert en asc ' fait , sur le ꝑformance de q̄ tout le vigour del fait consista . ascun foits il solem̄t est ū covenāt de que veies cok. lib. . en le sn̄r cromwels case . il ad aux ' ū aut ' significatiō ē choses judicial : cōe si le plaintiff ou demandant delaya de ꝓsecuter un actiō , & ne ceo port al trial , donque le defendant ou tenant poit prender hors le venire facias al viscount , que ad ē ceo ceux parols , proviso quod , &c. a cest fine , que si le plaintiff prist hors ascun br̄e a cel purpose , le viscount ne garnera forsque un jurie sur euk ambideux . veies vet. nat. br. en le br̄e nisi prius , fol. . provisors . veies praemunire . proxy . procuratio . proxy . procuratio , est un payment al evesque per un religious meason p̄ ses charges de son visitac̄on de tiels measons , davies rep . . purchase . purch ● se est le possession q̄ ū hōe ad en tr̄es ou tenements ꝑ son act demesne , meanes , ou agreem̄t , & nemy ꝑ title de discent ● ascun de fes ancestors . veies littl. l. . c. . purlue . purlue est tout cest terre ꝓchein ascun forrest , q̄ esteant fait forrest ꝑ henry le second , richard l' printer , ou joan le roy , fuist ꝑ perambulations grantus ꝑ henry le tierce sever̄ arer̄ del mesm̄ . manwood part . de ses forrest leys , c. . et semble , q̄ cest parol est fait ou de pouralle , ceo est , perambulare , ou purelieu , ceo est , purus locus , p̄ ceo que tiels tr̄es queux fueront ꝑ ceux roys subject al leys & ordinances del forrest , sont jammes ciere & franke del mesme : come les civilians appel ceo purum locum , qui sepulchrorum religioni non est obstructus ; en meim̄ le man̄er e ' puit estr̄ appeal pure lieu , p̄ ceo q̄ est exempt del servitude ou thraldom q̄ fuist par devant sur ceo impose . purlue home est cestuy que ad tr̄es deins le purlieu , & esteant able a dispender soulz per l'an de franktene . ment , est sur ceux deux choses licence de chaser en son purlieu demesne . manwood , part . . p. . & . veies le statute jac. . purpresture . purpresture est un ●● arol derive de franco ● pourpris , q̄ signifie de pre ● der del auter , & p̄ approp ●●● a luy mesme : & p̄ ceo un purpresture ē un general sense est prise p̄ asc̄ tiel tort sait ꝑ un home al auter . purpresture en un forrest est chescun encrochment sur le forrest le roy , soit ceo per edifier , incloser ou ꝑ user d' ascun libertie ou privilege sans un loyal garrant issint faire . et de ceo veies manw. for. leys , c. . f. . a. purveyors . purveyors suer ' auncient offices a ꝓvider victuals pur le roy quel office est menc̄on en stat. ed. . cap. . & ed. . cap. . & ed. . cap. . mes est aboly ꝑ stat. car. . cap. . q. quadrantata terrae . quadrantata terrae est le quarte part d'un acre . quae plura . quae plura est un briefe que gist en case lou le escheator ad trove un office virtute officii apres le mort le tenant le roy , & nad trove touts les tr̄es des queux il morust selsie , adōques cest br̄e issera ē nature d'un melius inquirendo , p̄ trover q̄ux tr̄es il avoit plusors . veies f. n. b. . a. quale jus . quale jus est un brief q̄ gist lou ascun abbot , prior , ou tiels auters , averont judgment de recover tr̄e ꝑ le default del tenant vers q̄ le terre est demaunde ; donque devant judgment done , ou execution agard , cest br̄e isse ra al escheator , p̄ enquirer quel droit il ad a recover : et si soit trove que il nad droit , donques le seignior q̄ duist aver le terre le tenant ust alien en mortmain̄ poit enter come en terre alien en mortmaine , car cel perder ꝑ default est semble a un alienation . vide le statute de westm . . c. . mes lou un voile doner terres ad meason de religion , un ad quod damnum issera al escheator , pur enquirer de que value le terre est , & quel prejudice il serra al roy. quare ejecit infra terminum . quare ejecit infra terminum est un br̄e que gist lou un fait lease a un auter pur terme d' ans , & le lessor enfeoffa un auter , & le feoffee ousta le termour ; donques le termour avera cest brief vers le feoffee . mes si un auter estranger ouste le termour , donques il avera brief de ejectione firmae vers luy . et en ceux deux br̄es il recovera le terme & ses dammages . quare impedit . quare impedit est un br̄e que gist lou jeo ay advowson , & le parson devie , & un auter present son clerk , ou disturbe de presenter ; donq̄s jeo avera le dit brief . mes assise de darrein presentment gist lou jeo ou mon ancestors ount present devant . et lou home poit aver assise de darrein presentment , il poit aver un quare impedit , mes nemy contrarie . auxy si l' plee solt dependant enter deux parties , & ne soit discusse deins size moys , l' evesque presentera per laps , & cestuy que ad droit de presenter recovera dammages , come appiert per le statute de westm . . c. . et si cestuy que ad droit de presenter ap̄s le mort del parson ne porta quare impedit , ne darreine presentment , mes suffer un estranger d'usurper sur luy , uncore il avera un brief de droit d' advowson . mes cest brief ne gist si il ne claime ● aver le advowson a luy & ses heirs en fee. quare incumbravit . quare incumbravit est un brief que gist lour deux sont en plee pur l' advowson , & l' evesque admit le clerk d'un d'eux deins le size moys ; donques il avera ceo br̄e vers l' evesque . mes ceo brief gist touts soits pendant le plee . quare intrusit matrimonio non satisfacto . quare intrusit matrimonio non satisfacto est un brief que gist lou le seignior ꝓfera convenable marriage a son garde , & il refusa , & entra ē le terre , & soy marry a un auter ; donques le seignior avera cest brief vers luy . quare non admisit . quare non admisit est un brief que gist lou home ad recover un advowson , & il manda son convenable clerke al evesque pur admit , & l' evesque ne voile luy receiver ; donques il avera le dit brief vers l' evesque . mes brief de ne admittas gist lou deux sont en plee ; si le plaintiff suppose que l' evesque voit admit le clerk le defendant , donques il poit aver cest br̄e al evesque , luy comman ● ane que il ne luy admitte pendant le plee . quarels . quarels est derive a querendo , & extend non solem̄t al actions cybien real come personal , mes auxy al causes de actions & suits : issint que ꝑ release de touts quarels , non solement actions dependant en suit , mes causes 〈◊〉 action & suit auxy sont release ; & quarels , controversies & debates sōt synonyma , & de un mesme signification . coke , lib. . fol. . quarentine . quarentine est , lou home devie seisie 〈◊〉 un man̄or-place , & de auters terres , dont sa feme doit estre endow , donques la feme tiendra se en le mannour-place , & la vive de le store & profits de ceo per quarant jours , deins quel temps sa dower serra a luy assigne : come appiert en magna charta , cap. . que estate . que estate est un terme en pleading p̄ avoider prolixity , si come un plead un feoffment en see al a. cujus quidem a. statum idem b. modo habet , & null poet ceo plead forsque tenant dei fee , nec poit estree plead de choies queux passont merement ꝑ grant come advowsons ou franchises , &c. quid juris clamat . quid juris clamat est un br̄e q̄ gist lou jeo graunt le reversiō de mon tenant a terme de vie ꝑ fine en court le roy , & le tenant ne voit atturner ; donques le grantee avera cest br̄e p̄ luy chaser , mes brief de quem redditum reddit gist lou jeo grant per fine un rent charge , ou auter rent que nest rent service , quel mon tenant tient de moy , & le tenant ne voit attorner ; donques le grantee avera cest brief . et br̄e de per quae servitia gist en semble case pur rent service . auxy si jeo graunt iv . divers rents a un home , & le tenant de terre attourna al grauntee per payment de un denier , ou un maile , en nosme de attournment de touts ceux rents ; cest attournm̄t luy mittera en seisin de tout cest rent . mes ceux trois briefs covient estr̄ port vers eux que sont tenants a jour del fine levie , & vers nul auters . quinzisme . quinzisme est un payment grant en parliem̄t al roy les layes gents , cestascavoir , l' quinzisme part de lour biens : et fuit use en ancient temps destre levie sur lour avers esteaunts en lour terres , que chose fuit mult troublous ; & p̄ ceo a ore pur le pluis part cest voy est alter , & ils use de levie ceo per le verge ou acre , ou auter measure de terre ; per reason de que il est a ore meins troublous & plus certain q̄ devant , & chesc̄ ville & pays scient q̄l summe est destre pay perenter eux , & comment ceo serra raise . nous legemus que moses fuit le pri ● et q̄ number le people , car il number les israelites ; & pur c̄ le primer tax , subsidie , tribute , ou quinzisme , fuit invent per luy enter les hebrews , come polydore virgil suppose . quit claim . quit claim est ū release ou acquitting d un hōe p̄ asc ● n action q̄ il ou poit aver envers luy . bracton l. . tract . . ca. . nu . . quo jure . quo jure est un brief que gist lou home ad ewe common de pasture en auter several deins le tēps de memorie ; donques celuy a que appertient l' several avera cest brief , a charge luy de monstrer ꝑ quel title il claim le common . quo minus . quo minus est un br̄e que gist lou home ad grant a un auter housebote & heybote en son boys , & le grantor fait tiel wast & destruction que le grantee ne poit aver sō reasonable estovers ; donque l'grātee avera le avant dit brief , que est en natura de brief de wast . et nota que housebote est certain estovers pur amender le meason ; & heybote est certain estovers p̄ amender heyes & hedges . est auter brief appelle qu ● minus en l' exchequer , quel ascun termour ou dettour al roy avera vers ascun auter pur debt ou trespasse en le exchequer office appelle le common pleas , pur que le plaintiff surmittera , que pur le tort que le defendant fait a luy , il est meynes able a payer le roy son dett ou terme ; quel est surmise a doner jurisdiction al court d' exchequer d' oyer a terminer la cause del suit enter eux , quel auterment serroit determine en auter court. quo warranto . quo warranto est un brief q̄ gist lou home usurpe daver aseun franchise sut le roy ; donques le roy avera cest brief , de faire luy vener devant ces justices , pur monstre per quel title il claime tiel franchise . quod ei deforceat . quod ei deforceat est ū br̄e que gist lou tenant en tail , tenant en dower , ou tenant a vie perde ꝑ default en ascun action ; dōques cestuy avera cest brief vers celuy que recovera , ou vers son heire , si il entende que il avoit melior droit q̄ i ● q̄ recovera . veies l' stat. west . . c. . quod permittat . quod permittat est un brief q̄ gist lou home est disseise de son common de pasture , & l' disseisor alien ou devie seisie , & son heire entr̄ ; donques si l' disseisee devie , son heire avera cest brief . r. ran. ran significat tam apertam rapinam , quae negari non potest . lamb. arch. fol . ranger . ranger venust del parol francois range , ( id est ordo , vel series ) & signifie un officer del forrest que est appoint se pourmen ● r chesc ' jour ꝑ le purlieu dont il est le ranger , pur rechaser les feres hors ceo en le forrest arrere ; de veier , oyer & enquire des offenders la , & de presenter lour offences . veies manw. cap. . fol. . &c. ransome . ransome signifie properment ceo summe que est pay pur le redemption dun q̄ est pr ● se captive en guerre , mes est auxy use use pur un summe des deniers paye pur le pardoner dascun grand offence ; come en le statute de h. . cap. . & en auters stat. fine & ransome alants insemble ; h. . cap. . & aylors . rape . rape ad deux significations : le primer est quant il est prise p̄ le part del county ; come southsex est divide en size parts , que ꝑ un peculiar nōe sont appel ' rapes , cambd. britan. p. & ceux parts en auters pays so ● t app ' hundreds , tythings , lath , ou wapentakes . en laut ' sense il est l' violēt conusance dū● ēe encount ' sa volunt : & cest offence est eelōie , cybiē ē l principal cōe ē les accessories . v. h. . c. . ed . c. . westm . . c. . cromptons just . de peace , f. , . rationabili parte bonorum . ratsonabili parte bonorum est ū br̄e que gist p̄ ū feme vers les executors sa baron , daver le tierce part de ses beins apres detts payes & funeral expences discharge . mes si cest brief gisera al common ley , ou solem̄t per le custom dascun pais , est un question en nostre livres . veies f. n. b. . l. rationabilibus divisis . rationabilibus divisis est un brief que gist lou sont deux seigniories en divers villes , & un pres de auter , & ascun parcel de un sn̄rie , ou de wast , ad este encroche ꝑ petits parcele ; donques celuy seignior de que le parcel de terre ou le wast ad este encroche avert cest brief envers le seignior que ad issint encroche . ravishment de gard. ravishment de gard est un brief que gist pur le gardian en chivalry , ou soccage , vers cestuy que prist de luy le corps son gard. et de c ' veies f. n. b. fol. . e. &c. rebutter . rebutter est , quant un per fait ou fine grant d' garranter ascun terre ou hereditamēt a un auter , & cestuy que fist le garrantie , oy son heir̄ , sua celuy a que le garrantie est fait , ou son heire , ou assignee : guee : si celuy que issint sue pleade le dit falt ou fine ove garrantie , & demand judgement , si le plaintiff serra receive a demander le chose que il doit garrant ' , enconter cel garrantie , per le fait ou fine avant dit , compernant tiel garrantie , tiel pleader en garrantie est appelle un rebutter . cest paroll est auxi un denomination d'un plea q̄ succeed le plea appel surrejoinder , & puis le rebutter succeed surrebutter . queux veies cokes entries , fol. . recaption . recaption est un second distresse dun que fuit auterfoits distrein devant p̄ m̄ le cause , & c ' durant le plea ground sur le former distresse . est auxy le nosme del brief ou remedy que le ley don̄ p̄ cestuy q' est issint deux foits distrein p̄ ū chose : le form̄ & use 〈◊〉 q̄l br ' poies veier en f. n. b. f. . e. &c. recluse . recluse est cestuy que ꝑ le reason de son order en religion ne poit mover ou departer hors de son meason ou cloister . et dun tiel , littleton parle sect . . recognizance . recognizance est un obligation fait devant un master del court de chauncery pur un debt , ou a performer covenants , ou uu order ou decree del court sur q̄ un elegit issue si les conditions ne sont ꝑforme , mes nul capias sur ceo gist versus le cognisor ou ses executors . quaere & vide len. . recordare . recordare est un brief direct al viscount , p̄ remover un cause hors dū inferior court , com̄ court ● l anciēt dēesne , hūdred court , ou county court , en bank le roy , ou common bank. et de c'veies f. n. b. f. . b. record . record est un esctipt en parchment , ou sont enroll pleas de terre , ou common pleas , faits , ou criminal proceedings en ascun court de record ; mes en courts nient de record come admiraltie , courts christian , courts baron , &c. lour registrie de procedure ne sont ꝓprement dits records : mes courts de ley teign ꝑ grant ● l roy sōt courts de record . recovery . recovery est commenm̄t intend un common recocovery ꝑ assent des parties a docker un entaile , & est foundue sur un brief ● entry auxi chescun judgment est recovery ꝑ les parols ideo consideratum est quod recuperet . recusants . recusants sont touts ceux queux separate de l'esglise & congregac̄on ꝑ ley & statutes establies en cest roialm de q̄l opinion ou sect lis sont , come touts judges ont ceo expound suꝑ statute el. cap. . & divers auters stat. redisseisin . redisseisin . veies de ceo devant en le title de assise . reextent . reextent est un second extent fait sur terres ou tenements , sur complaint fait que le prieur extent fuit partialment performe broke , tit . extent . fol. . regarder . regarder venust del francois regardeur , ( i. e. spectator ) & signifie un officer del forrest le roy , jure de prender le regard del vert & venison , & de veier & inquire des touts offences cōmises deins le forrest , & des touts les cōcealm̄ts 〈◊〉 eux ; & si touts les officers del forrest bien executōt lour offices ou nemy . veies manw. for. leys . c. . f. . b. regrator . regrator est ce uy que ad blees , victuals , on auters choses sufficient pur son necessary ops ou expences , & nient obstant engress & achate en ses mains plus blees , victuals , ou auters tielx choses , al entent de ven ● c̄ arere al un pluis hault & chare price , en faires , markets , ou tiels semblable lieux : de que veies le stat. e. . cap. . il serra punie come forestaller . rejoynder . rejoynder est , qn̄t le defendant fait respons al replication del plainriff . et chescun rejoynder doit aver ceux deux properties specialment : cestaseavoire , il doit estre sufficient respons ad replication , & de subsequent & ēforce le matter del barr. relation . relation est , lou , en consideration del ley , deux temps ou auters choses sont consideres tielment come si fueront tout un , & per ceo le chose subsequent est dit de prendr ' son force per relation al temps precedent ' : sicome un deliver un escript al un destre deliver al auter , come fait cestuy q̄ ceo deliver , qn̄t lauter , a que serroit deliver , ad pay ascun summe de money ; ore quant le money est pay , & l' escript deliver , ceo serra repute come fait cestuy q̄ ceo delivera al temps quant fuit primes delivera . issint petitions de parliament , as q̄x le roy assent al darrein̄ jout đ parliam̄t , averōt relation & prendront lour force del prim̄ jour del commencem̄t đl parliament et issint est divers auters choses semblables . release . release est le done on discharge del droit ou action q̄ ascun eyt ou claime envers auter , ou son terre . et un release de droit est cōmunemēt fait qn̄t un fesoit ū fait a ū auter ꝑ ceux ou tiels parolx , remisisse , relaxasse , & omnino pro me & hered ' meis quiet ' clamasse a. b. totum jus meum quod habui , habeo , seu quovismodo in f ● turo habere potero , in uno messuagio , &c. mes ceux parols ( quovismodo habere potero ● ) sont voids : car si le pere soit disseisie , & le fits release ꝑ son fait sans garrantie tout son droit , ꝑ ceux ꝑols ( quovismodo in fut . habere potero , &c. ) & le pere morust ; le fits poit loyalment enter sur le possess . le disseisor . auxy en un release de droit il covient que il a que le release est fait ad un frank ● enement ou possession en les terres en fait ou en ley , ou un reversion al temps del release fait ; car sil ad riens en le terre al temps del release fait , le release ne serra a luy availeable . veies pluis de ceo . littl. lib. . cap. . relicta verificatione . relicta verificatione est quant un defendant ad plead , & l' issue est enter de record . et puis ceo le defendant relicta verificatione ( que est son plea ) cognoscit actionem , & sur ceo judgment est enter pur le plaintiff . relief . relief est ascun foits un certaine summ de money que l'heir payera la sn̄r ● que ceux terres sont tenus , queux apres le decease de son ancestor sont a luy discende come prochein̄ heir . ascun foits il est le paym̄t d' ū auter chose , & nemy money . et pur ceo relief nest certain & semblable pur touts tenures , mes chescun sundry tenure ad ( pur le pluis part ) son special relief certain en luy mesme . neque est c̄ destre paye touts foits al un certain age , mes il varie accordant al tenure . come si le tenant ad terr ● tenus per service de chivaler , ( forspris grand serjeantle ) & morust , son heire esteant de pleine age , & tient ses terres per le service de un entier fee de chivaler , le seignior de que ceux terres sont issint renus avera del heire c s. nomine relevii : & si il tient per meins q̄ un fee de chivaler , il payera meins , & si pluis , donques pluis ; aiant respect touts foits al rate p̄ chesc ' fee de chivaler un cent soulz . et si tient ꝑ grand serjeantie , ( que est touts foits del roy , & est auxy service de chivaler ) donq̄s le relief serra le value del terre per an , preter touts charges issuant hors de c ' . et si l' terre soit tenus en petit serjeantie ou ē socage ' donques p̄ le relief le heire payera al un foits tāt que il doit payera an̄uelment p̄ son service ; q̄ est cōmunement appelle le doubling ● l rent . auxy si un home tient del roy en chief , & des auters sn̄rs , le roy avera le garde de touts les terres , & le heir̄ payera relief a touts les seigniours a son plein age : mes les seigniours suera al roy ꝑ petition , & avera le rent pur le temps que le enfant fuit en gard. mes veies ore que per le statute de e. . cap. . les mesne sn̄rs ne sont mises a lour petition , mes averont touts les rents as eux payes per les officers le roy sur request annuelment durant le possession le roy. et nota , q̄ touts foits qn̄t le relief est due , il doit estre pay al un entier payment , & nemy per parts , nient obstant que le rent soit destre payer al several feasts . veies le statute car. . cap. . remainder . remainder de terre est l' terre que remainera apres le particular estate determine : come si un grant terre p̄ terme de ans , ou p̄ vie , le remainder al j. s. cest adire , quant le lease p̄ ans est determin̄ , ou le lessee pur vie est mort , donques le terre remainera ou abide ove , al , ou en j. s. veies reversion . remembrancer del eschequer . remembrancer del eschequer : la sont trois officers ou clerks la appel per tiel nosme ; l' un est appelle remembrancer del roy , l' auter del seignior treasurer , & le tierce del primer fruicts . le remembrancer del roy enter en son office touts recognisances pur les dets le roy , apparances , & pur observer orders : auxy il prist touts obligations pur ascun des dets le roy , pur apparances , & observances d' orders , & fist proces sur eux p̄ le enfreinder de eux . le remembrancer del seignior treasurer fist proces vers touts viscounts , escheators , receivers , & bailifes pur lour accounts ; il fist le proces de fieri facias , & extent pur ascun dets due al roy , ou en le pipe , ou ove les auditors : & il fist proces pur tout tiel revenue que est due al roy per reason de ses tenures . le remembrancer de les primer fruicts prist touts compositions p̄ primer fruicts & dismes , & fait proces envers ceux q̄ ne pas paya m̄ . de ceux officers veies pluis ē da. livre del office & authoritie de viscounts , f. . remitter . remitter est , quant un home ad deux titles a ascun terre , & il vient al terre ꝑ le darreine title ; uncore il serra adjudge ein s per force de son pluis eigne title , & ceo serra dit a luy ū remitter . come si tenant ē le taile discontinua le taile , & puis disseisie son discontinuee , & morust ent selsie , & les terres discendont a son issue ou cosin enheritable ꝑ force del taile ; en ceo case il est ē son remitter , cestascavoir , seisie del ꝑ force del tail , & le title del discontinuee est ousterment anient & defete . et le reason & cause de tiel remitter est , p̄ ceo q̄ tiel heire est tenant del tr̄e , & nest ascun ꝑson tenant vers que il poit suer son brief de formedon p̄ recover l' estate taile : car il ne puit aver action vers luy mesme . auxy si tenant en le taile enseoffa son fitz ou heire apparent q̄ est deins age , & puis devie : ceo est ū remitter al heire , mes si il fuit 〈◊〉 plein age al temps de tiel feoffm̄t , il nest remitter , p̄ c̄ q̄ il fuit son follie , q̄ il esteant 〈◊〉 plein age voile p̄nder tiel feoffm̄t . si le baron alien terre que il ad en le droit son feme , & puis reprist estate a luy & a son feme p̄ terme de lour vies ; ceo est un remitter al feme , pur ceo que cest alienqtion est l'act lē baron , & nemy l' act de la feme ; car nul follie poit estre adjudge en feme durant le vie le baron . mes si tiel alienation soit per fine en court de record , tiel reprisel apres al baron & feme pur terme de lour vies ne ferra la feme destre en sa remitter ; pur ceo que en 〈…〉 la feme serra examine 〈◊〉 judge , & tiels examina ●● on s en fines excluderont tiels femes a touts jours . auxy quant l' entrie d'asc ' home est congeable , & il prist estate a luy quant il est de plene age , si ne soit per fait indent ' , ou matter de record , que luy estoppera , ceo serra a luy bone remitter . rents . rentssōt 〈◊〉 divers kinds ; ces ● ascav ' , rent-service , rent-charge , & rent-secke . rent-service est , lou le tenant in fee-simple tient sa tr̄e de son sn̄r ꝑ fealtie & certaine rent , ou ꝑ auter service & rent ; & donques si le rent soit arere , le sn̄r poit distraine , mes il jammais navera action de det pur ceo . auxy si jeo done tr̄es en le rail a ū hōe , payāt moy certain rent , ceo est rent-service . mes en tiel case il covient que le reversion soit en le donour : car si home fait feoffment en fee , ou un done en taile , le remainder ouster en fee , sans fait , reservant a luy un rent , tiel reservation est voide , & ceo est per force del statute quia emptores terrarum ; & donques il tiendra de le sn̄r de q̄ son donour tenoit . mes si home ꝑ fait indent a cel jour fait tiel done ē le taile , le remainder ouster en fee , ou lessa pur term de vie , le remainder ouster ; ou un feoffm̄t , & ꝑ m̄ l' endenture reserva a luy un rent , & q̄ si le rent soit arrere , que bien lirroit a luy a distrainer ; ore tiel rent est rent-charge . mes en tiel case , si la ne soit clause de distress en le fait donques tiel rent est appel rent-seck , p̄ quel il ne jammais distrainera ; mes si fuit un foits seisie , il avera assise ; & si il jammais ne suit seisie , est sans remedie . aux ' si ū grant ū rent issuāt hors 〈◊〉 sa tr̄e , ove clause ● distress , cest ū rent-charge , & si le rent soit arrere , le grantee poit es ● ier 〈◊〉 distrainer , ou suer ' ū br̄e 〈◊〉 annuitie , mes il ne poit aver ambideux ; car sil port br̄e d'anuitie , donques le tr̄e est discharge . et si il distr̄ , & avow le prisel en court de record , donque , le tr̄e est charge , & ie ꝑson ● l grantor discharge . auxy si un grant un rent charge , & le grantee p̄chase le moietie , ou asc ' auter part ou parcel de le terre , tout le rent est extinct . mes ē rent service , si le seign or p̄chase parcel del terre , le rēt serra apportion . si un ad un rent charge , & son pere purchase parcel del terre , & cel parcel discenda a le fitz , q̄ ad le rent charge ; ore cel rent serra apportion solonque le value del tr̄e , come est dit de rent service ; p̄ ceo que le fitz ne vient a ceo p̄ son act demesn̄ , mes ꝑ discent . aux'si jeo face un lease p̄ term d' ans , reservant a moy un certain rent , cest appel ū rent service , pur quel il est mon libertie a distrainer p̄ le rent , ou aver un action de det : mes si le lease soit determine , & le rent soit arer̄ , jeo ne puisse distraine , mes serr̄ mis a mon actiō 〈◊〉 det. et nota , que si le seignior soit seisie de service & rent avandits , & ils soyent aderere , & il distrain , & le tenant rescue le distress , il poit aver assise , ou brief de rescous ; mes il est pluis necessarie pur luy d' aver assise , que brief de rescous : pur tant que per assise il recovera son rent & ses dammages ; mes per cest brief de rescous il ne recovera mes dammages , & le chose distraine serra reprise . si le seigniour ne soit my seise del rent & service , & ils sont aderere , & il distrein pur eux , & le tenant reprent le distresse ; il ne poit my aver assise , mes brief de rescous , & ne covient my al sn̄r de mr̄e son droit . si le seignior ne poit my trover distresse per deux ans , il avera vers le tenant brief de cessavit per biennium , ut patet per le statute de westm . . cap. . et si le tenant devie en le mean temps , & son issue enter , le sn̄r avera vers le issue br̄e de entry sur cessavit ; ou si le tenant alien , le sn̄r avera vers le ali ● nee le avantdit brief . mes si le sn̄r ad issue & devie , & le tenant soit en arrearages del dit rent & services en le temps le pere , & nemy en le temps del issue ; il ne poit my distrein pur arrearages en temps son pere , & navera ascun auter recoverle vers le tenant ou ascun auter , pur ceo que tiel advantage est done per le ley al tenant . et nota q̄ fealty appent de common droit a rent-service , mes nemy a rent charge ne rent seck . si home distrein pur rent charge , & le distresse soit rescue de luy , & il ne fuit my seisie adevant , il ne ad my recoverie forsque ꝑ br̄e 〈◊〉 rescous ; car le distresse primerm̄t fait ne don̄ a luy seisiu , forsque sil nad le rent adevant : car si il fuit seisie del rent adevant , & puis le rent soit adecere , & il distrein , & rescous soit fait , il avera assise , ou brief de rescous . en chescun assise de rent charge , & annual rent , ou en un brief de annuity , covient a celuy que port le brief de monstre avant un especialty , ou auterm̄t il ne maintainera le assise . mes en assise de mortdācester ou formedon ē le discender , & auters briefs ( en les queux title est don̄ ou cōprise ) port de rent charge ou de annual rent , nest besoigne de monstre especialty . et nota bien , que si home grant rent charge a un auter , & le grātee relessa al grantor parcel de le rent , uncore tout le rent nest extinct . si rent charge soit grant a deux joyntment , & le un relessa , uncore le auter avera le moietie del rent . et si l'un p̄chace le moietie de le ter̄ dont le rent est issuant , lauter avera le moietie del rent de son compaignion . et si le disseisor charge la terre a un estranger , & le disseiscee port le assise & recover ; le charge est defeate . mes si celuy que ad droit charge la terre , & un estranger faine un faux action envers luy que nad dro ● t , & recover per default ; le charge demurra . en case purparty soit ꝑent ' deux parceners , & pluis terre soite allotte a lun que a lauter , & el que ad pluis del terre charge sa terre al auter , & el happe le rent ; el maintainera assise sans especialty . et est un rent seck , lou hōe tient de moy per homage , fealty , & auter services , rendant a moy un certain rent per an , q' jeo grant a un auter , reservant a moy les auters services . si rent seck soit grant a un home & ses heirs , & le rent soit arere , & le grantor devie ; le heire ne purra my distrainer , ne recoverales arrearages de temps son pere , sicome est avantdit de rent service . et in m̄ le manner est de rent charge ou annual rent . mes ē touts ces rents le heire pro ● t aver p̄arrearages en son temps demesne tiel advantage come avoit son pere en sa vie . vide statute h . cap. . et nota bien , que en rent seck si home ne soit seisie del rent , & il soit aderere , il est sans recovery , pur c ' que il fuit son folly demesne al primer , quant le rent fuit grant a luy ou reserve , que il ne prist my seisin del rent , sicome un denier ou deux . hom̄ ne poit aver̄ cessavit per biennium , ou un auter br̄e d'entry sur cessavit , p̄ ascun rent seck aderere per deux ans , mes il p̄roit tant solement p̄ rent service , ut patet in le stat. westm . . cap. . il covient p̄ luy que sue p̄ rent seck monstr̄ fait al tenant , auterm̄t le le tenant ne serra my charge del rent , sorsque lou le rent seck fuit rent service adevant ; come en cest case : sn̄r , mesne , & tenant , & chesc ' de eux tient de auter per homage & fealtie , & le tenant de mesne per ● . de rent ; le seignior paramount p̄chase les terres ou tenements 〈◊〉 tenant , tout le seigniorie del mesne , forsprise le rent extinct : & pur cest cause cest rent est devenus rent seck , & le rent service change , car il ne poit distraine pur cest rent ; & en cest case celuy q̄ demāda le rent ne serra jammes charge de monstre fait . auxy en brief 〈◊〉 mortdancestor , ayle ou besayle , de rent seck , il ne besoigne de monstre especialtie , pur ceo que ceux briefs de possession comprehendont un tir'e delns eux mesmes , cestascavoire , que le ancestor fuit seifie de mesme le rent , & continua son possession ; per cause de quel seisin le ley suppose q̄ est auxy averrable per le pays . tamē quaere , car ascūs supposant ū fine sorce a mōstr̄ avāt fait , p̄ ceo que rent seck est ū chose ēcount ' cōmon droit , auxy bien come rent charge . mes en assise de novel disseisin , & en brief de entrie sur disseisin port de rent seck , il covient de fine fore mr̄e avant fait ; p̄ ceo que rent seck est un chose encounter cōmon droit sinon en le case suisdit , ou il fuit rent service adevāt , & ꝑ le act del ley est devenus rent seck . et assise de novel disseisin , & brief de entrie sur disseisin ne conteigne deins eux nul title , mes supposant un disseisin dēe fait en le plaintiff ; & de entendment del ley le disseisin ne done nul cause de averment encounter common droit , mes de fine force il monstre avant especialy . repleader . repleader est , ou le plees de plaintiff ou defendant , ou ambi-deux sont male , ou un impertinent issue joyne , donque le court annul touts ceux pleas queux sont male , & agard quod partes replacitent co. en. . , . replevin . replevin est un brief que gist quant un home est distreine pur rent ou auter chose , donques il avera cest brief al viscount , pur deliver a luy le distresse , & trovere surety de pursuer son action ; & si il ne pursua , ou si soit trove & judged encounter luy , donques cestuy que prist le distresse re-avera distresse , que est appel ' retourne des avers ; & il avera en tiel case brief appel returno habendo . mes si le defendant avow pur rent il poit aver judgement pur le value des avers per le statute car. . cap. . si soit en ascun franchise ou bailiwicke , le party avera un replevin del viscount directe al bailiff de m̄ le franchise , pur eux redeliver , & il trovera surety de pursuer son action al prochein county . et cest replevin poit estre remove hors del county en le common banke ꝑ brief de recordare . vide plus de replevin devant title distress . auxi vide mic. . e. . pl. . & e. . pl. . un parol plevin , ou terr' fuit prist en la main le roy. et puis sont deliver ou replevy hors des mains le roy , per que veies stat. e. . cap. . brief de homine replegiando gist lou un home est en prison , & nemy per especial commandement le roy , ne de ses justices , ne p̄ le mort de home , ne pur le forrest le roy , ne pur tiel cause que nest replevisable ; donques il avera cest brief direct al vicount , que il luy faire estre replevy . et cest brief est un justicies , & nient retournable . et si vicount ne ceo face , donques issera auter brief , sicut alias ; & apres auter brief , sicut pluries , vel causam nobis significes , que serra retornable . et si le viscount uncore ne face replevin ; donques issera un attachment directed al coronors dattacher le vicount , & de luy amesner devant les justices a un certain jour , & ouster ceo que ils facent execution del prim̄ brief . replication . replication est , quant le defen ● en ascun action fait respons , & le plaintiff replie a ceo , ceo est appel le replication del plaintiff . reprises . reprises sont deductions , payments & duties que va annuelm̄t & sent pay hors de un mannour ; come rent charge , rent seck , pensions , corrodies , annulties , fees de seneschals ou baylifes , & tiels semblables . reprieve . reprieve venust del francois repris , resumptus ; issint que repriver est ꝓperment ● resumer un prisoner soner del execution & proceeding del ley pur ceo temps . requests . requests est un court teigne en le palace del roy , devant le master de requests ꝑ petition , & semble estre un court d' equity . rere county . rere county ( retrocomitatus ) est un ꝑol use en les stat. westm . . c. . & e. . c. . & semble ꝑ ceux stat. destre asc ' publique lieu que l' viscount appoint p̄ le receit des deniers le roy apres le fine de son county court. resceit . resceit est , quant ascun action est port vers tenant pur terme de vie ou de ans , & cestuy en le reversion vient eins , & pria destre receive p̄ defen ● le terre , & p̄ pleader ovesque le demandant : auxy quant il vient , il covient que il soit touts foits prist a pleader ove le demandant . en mesme le manner un feme serra receive pur default sa baron en action port vers ambideux . et tenant pur ans serra receive a defend ' son droit , lou , en un action port vers tenant del frank-tenement , il plede faintment . rescous . rescous est un brief que gist quant ascun home prent distress , & un auter repriss distress de luy , & ne voile suffer luy amesner l' distress ; ceo est un rescous , sur quel il poit aver cest brief , & recovera dammages . auxy si un distrein beasts pur dammage feasant en sa terre , & les enchasea per le hault chimin pur eux enparker , & en alant ils entront en le meason de celuy a que ils sont , & il eux detient la , & ne voile suffer le auter de eux enparker ; ceo detainer est rescous . auxi si le viscount prist mon dettor per execution ou mesne process , & j. s. rescue luy hors del custody del viscount , jeo avera acc̄on de rescous versus j. s. pur cest tort & recovera damages & debt . reservation . reservation est prise divers voyes , & ad divers natures . cōe ascū foits ꝑ voy de exception , 〈◊〉 reserve ceo que un home ad devant en luy : come si ū leafe soit fait pur ans de terre , reservant les grand arbors cressant sur ceo , ore le lessee ne poit meddle ovesque eux , ne ovesque asc ' chose q' vient 〈◊〉 eux , cy longe come il demurt ē ou sur les arbors , come mast ● oake , chesnut , pomes , ou tiels semblables : mes sils chient del arbors al terre , donq s ils sont en droit l'lessees , car le terre est lesse a luy , & tout sur c ' nient reserve , &c. ascun foi ● s un res ● rvation obtaine & port hors un auter chose que ne fuit devant : cōe fi un home lessa ses terres reservant annualm̄t pur c ' xx . l. &c. et divers auters tielx reservations y sont . et nota , que en ancient temps lour reserv ● tions fuerōt cybien en victuals , soit ceo carne , pishe , b ● ees , pane , boyer , ou auterment , come ē money , tanque al darreine , & specialment en le temps del roy henry le . per agreement le reservation de victuals fuit change en prist money , come il ad tanque cy continue . residence . residence venust ● l latine residere , & est tout un ove resiance , si non que cest parol residence est plus tost appropriate al continuance dun parson ou vicar sur son esglise ou benefice ; & issint est use en le stat. de h. . cap. . resignation . resignation est , lou un incumbent de un esglise resigne ou relinquish ceo al ordinarie , que luy ait admit a ceo , ou a ses successors ; que differ del surrender , quant ꝑ cel il a que le resignation est fait nad ascun interest en le chose issint resigne , mes cestuy a que surrender est fait avoit per ceo le chose mesme . restitution . restitution est quant un judgment est reverse per error donque brief de restitution issera p̄ le defendant en l' action a restorer a luy tout ceo q̄ il ad ꝓdus . est auxi un brief de restitution de biens emblees sur conviction d'un larō , quel est fait al session on assizes . sur stat. h. . . noy rep . . resummons . resummons est un second summons d'un home p̄ responder al un action , lou le primer summons est defeat ꝑ le demise le roy , ou tiel semblable cause . et de ceo veies coke , lib. . fol. . b. auxi si terr-tenant retorne sur scire facias , ou auter action plead non-age , & le parol demurr tanque , &c. quant il veign de p'ein age , le plaintif , sur suggestion p̄ aver scire facias ou resum : et issint ou plea est stay per pleder de protection , excomengement , ou auter tiel disability . resumption . resumption est un parol use en le stat. de h. . c. . & est la prise p̄ le reprendre en les maines le roy de tiels terres ou tenements come sur faux suggestion ou auter error le roy ussoit deliver al un heire , ou grant per patent al ascun home . retraxit . retraxit est le preterperfect tense de retraho , pur evulser arere ; & est , quant le plaintif ou ꝑtie demandant veient ē ꝓper ꝑson ē le court lou son suit est , & dit que il ne voit ulterius prosequi in placito illo , &c. ceo serra un barre al action a touts jours . reve , ou reeve . reeve est un officer pluis conous en ancient tēps q̄ a cest jour : car chesc ' mannor ad donques un reeve , & uncore en divers copihold-mannors ( ou le veiele custom p̄vaile ) le nosme & office nest en tout oblie . et est en effect ceo q̄ a ore chesc ' bailiff d'un man̄or practise , nient obstant le nosme de bailiff ne fuit donq̄s ē ure enter nous , esteant puis port eins ꝑ les normans . mes le nosme de reeve , ancientment appel greeve , ( quel particle ( ge ) en continuance del temps fuit ousterment omise & perde ) vient del saxon parol gerefa , que signifie un ruler : et issint verament son rule & auctoritie fuit large deins le compass del man̄or son seignior , & enter ses homes & tenants , cybien en choses de governm̄t en peace & guerre , cōe en le skilful use & trade de husbandry . car sicome il collect ses rents del sn̄r , pay reprises ou duties issuant hors del mannor , appoint les servants de worker , succide & decoupe arbres p̄ repairer les edifices & enclosures , ovesque divers tiels semblables , p̄ le commoditie del seign̄t ; issint auxy il ad auctoritie de governer & gard les tenants en paix , & , sil besoigne , 〈◊〉 conducter eux en guerre . reversion . reversion de terre est un certaine estate remainant en le lessor ou donor , apres le particular estate & possession convey al un auter per lease p̄ vie ou ans , ou done en taile . et est appel un reversion en respect de le possession separate de ceo : issint que il que ad l' un nad l' auter a mesme le temps ; car en un corps simul la ne poit estre dit un reversion , pur ceo que per l'uniting l' un est merge en l' auter . et issint le reversion del terre est le tr̄e mesm̄ quant il eschuest . ribaud . ribaud semble d'estre sturdy vagabonds , rot. parl. e. . . right , & right de entrie . right , & right de entry . veies en droit . riot . riot est , ioutrois , ( al meins ) ou plures font asc ' illoyal act , come de bater un hōe , enter sur le possession d'un auter , vel hujusmodi . robbery . robberie est , quant un home prent asc ' chose del ꝑson d'un auter feloniousm̄t ; coment q̄ la chose prise soit al value sorsque d'un denier , uncore il est felonie , p̄ quel l' offendor suffera mort . rood de terre . rood de terre est un certaine quantitie 〈◊〉 terre contein̄ le quatre part d'un acre . anno eliz. c. . rout. rout est , quant people assemble eux m̄ , & puis ꝓcedant ou chivauchant , ou alant avant , ou movent ꝑ instigation d'un ou plusors , que est conductor d'eux . cest appel un rout , p̄ c ' q̄ ils movent & ꝓceed en routs & numbers . item ou plures assemble eux sur lour quarrels & braules demesne ; come si les inhabitants d'un ville voille ass ● mbler eux p̄ disbruiser heys , mures , fosses , pales , ou tiels semblables , d'aver common l ● , ou de bater un auter que ad fait eux un common displeasure , vel hujusmodi ; cest un rout , & encounter le ley , coment q̄ ils nont fait ou mis en execution lour male entent . veies le statute mar. c. . s. sac , ou sake . sake est placitum & emenda de transgr̄ hominum in cnria vestra ; quia sake anglice est encheson gallice , & sake est mis pur sick . veies keloway casus incerti temporis , f. . a. que le privilege appel sake est , d' aver les amerciaments de ses tenants en son court demesne . sacrilege . sacrilege est quant un emblee ascun vessels , ornaments ou biens de saint esglise q̄ est felony , cro. , . salary . salarie ( salarium ) est un parol mult use en nr̄e livres , & signifie un recompence ou consideration done al asc ' pur son labour implie sur les besoign ' d'un aut ' . et est issint appel , come plinie dit l. . nat. hist . c. . quia tam necessarium est quam sal homini , & labores suos sapit ut sal cibos . sanctuary . sanctuary est un lieu privilege ꝑ le soveraigne p̄ le garder des vies des homes queux sont pechers , esteant foundue sur le ley de mercy , & sur le grand reverence , honour & devotion q̄ le soveraigne port al lieu a que il granta tiel privilege : q sult st grand en temps passe q̄ les soveraignes on t grant mesm̄ en cases de treason ꝑpetres encounter eux mesmes , murder , rape , ou auter crime quecunque . de ceo veies stamf. pl. del cor. l. . c. . satisfaction . satisfaction est , quant un defendant ad pay debt ou damages versus luy recover , il covient a luy d' aver satisfaction d' estre enter sur le record del judgment . sarpler . sarpler est un quantitie de lane , que en escose est appel serplath , & containe stone ; & ove nous en angleterre un corde de lane consista ( per l' opinion d' ascuns ) de todde , & chesc ' todde containa deux stone , & chescun stone livers ; & que ū sack ● lane est en usual estimation egal ove ū corde , & un sarpler le moietie d'un sack. scandalum magnatum . scandalum magnatum est un male report invēt ou disperse al prejudice ou slander d' ascun grand personage ou officer ● l realm . le punishm̄t p̄ que est enact ꝑ divers statutes , viz. westm . . c. . r. . c. . & r. . c. . scavage . scavage ou shewage est un tolle exact ꝑ les maiors , viscounts & bailiffs des cities & boroughs corporate , pur wares ou merchandise monstres destre vendus deins lour p̄cincts & jurisdiction : quel exaction , esteāt encont ' le privilege des subjects le roy , suit inhibite per un statute fait h. . c. . veies h. . f ● . a. & veies le stat. de h. . c. . in fine . major , &c. de london port dett p̄ cel duty , hiis verbis pro supervisu apertionis h. , . c. . b. r. roll. . scire facias . scire facias est un brief judicial issuant hors de record , & gist lou un ad recover dette ou dammages en court le roy , & il ne sue pas d' aver execution deins l' an & le jour ; donq̄s apres l' an & jour l' avera il dir brief a garner le partie : & si le partia ne vient , ou sil vient & ne scavoit riens dire encounter execution , donques il avera un brief de fieri facias direct al viscount , luy commandant que il levie le dette ou les dammages des biens 〈◊〉 celuy q̄ avoit perdue . le br̄e de fieri facias gist deins l' an , sans ascun scire facias suer . auxy si le sum̄e 〈◊〉 mesme le dette ou dammages ne poit estre levie des biens de celuy q̄ avoit ꝑdue , donques il poit aver un br̄e d' elegit , direct al viscount , que il face luy deliver la moietie de sa terre & biens , except ses boves & affries de sa carue . quant un ad recover det ou dammages en action ꝑsonal , ( lou le proces est ū capias ) il poit aver ū auter br̄e d' execution , appel capias ad satisfaciendum , pur prender le corps celuy q̄ est issint condempne , que serra commit al prison , illonques a demurrer sans baile ou mainprise , tanque il ad satisfie le partie . auxy quant ū ad judgm̄t de recover ascun terres ou tenements , il avera un br̄e appel habere facias scisinam , direct al viscount , luy commandant deliver a luy seisin de mesme le terre issint recover . veies pluis de ceo en les titles fieri facias , & execution . le brief supra est done ꝑ statute westm . . cap. . mes auxi sont auters manners de scire facias ; scil . super audita querela brevia de erroribus corrigendis , tam ad audiendos errores , q̄ quare executionē habere non debeat , & versus terrtenent super juditiis & hujusmodi . scot. scot est , quietum esse de quadam consuetudine , sicut de communi tallagio facto ad opus vic' vel balliv ' ejus . scotale . scotale est un extortion prohibit per le charta del forrest , cap. . & est lou ascun officer del forrest tenust un alehouse , al intent que poit aver le custome des inhabitants deins le forrest , de vener & expender lour deniers ove luy , & pur ceo il coniver̄ a lour offences commise deins le forrest . second deliverance . second deliverance , est un brief fait ꝑ le filacer a reliver avers distreine puis q̄ le plaintiff est non-suit en un replevin . plo. com. . dyer . se defendendo . se defendendo est un plee p̄ luy que est charge ove mort de un auter , disant que il fuit compelle a ceo que il faisoit , en son defence m ● sme . stamf. pl. cor. lib. . cap. . seigniorie en grosse . seigniorie en grosse . veies lord en grosse . selion . selion ( selio ) venust del francois sellon , id est , terra elata inter duos fulcos , en latine parca ; & nest dascun certain quantitie , mes ascun foits containe plus , & ascun foits meins . et p̄ c ' crompton en son jurisdiction des courts , fol . dit q̄ un selion ne poit estre demand , eo que est uncertain . seneshal . seneshal ( seneschallus ) est ū ꝑol francois emprant del germonois , & signifie ū q̄ avoit le dispensation del justice ē asc ' ꝑticular cases ; cōe stamf. pl. cor. fo . . b. le grand seneschal del angleterre , ou des affaires dun familie cōe cromptons jurisdiction , f. . seneschal de hostel le roy , & le stat. de e. . stat. . c. & auters . est auxi home erudite appoint ꝑ le seignieur de un mannor a tener courts leet ou baron , coke inst . f. . . sequestration . sequestration est le mitter apart dū chose in controversie del possession 〈◊〉 ambideux q̄ contend pur ceo . est use auxy p̄ le act dun ordinary , qn̄t nul voit intromitter oves les biens & chat ' dun q̄ est mort , come en . & . m. dyer fol. . b. & el. dyer fo . . a. et issint est use auxy p̄ le collect ' des fruits & profits dun benefice q̄ est void , al use del prochein incumbent , per le statute de h . cap. . service de chivaler . tener per service de chivaler est , a tener ꝑ homage , fealty , & escuage ; & treit a luy gard , marriage , & reliefe . et nota , q̄ service de chivaler est service 〈◊〉 terres ou tenements , pur armes porter en guerre en defence del royalm̄ ; & doit garde & marriage appent , ꝑ reason q̄ nul est able , ne de power , & ne poit aver conusās de arm̄s porter , devant q̄ il soit del age de ans . et al fine que le sn̄r ne perdera ceo que de droit il poit aver , & q̄ la power de la royalme en rien ne soit enfeeble , la le ley voet , ꝑ cause de son tender age , q̄ le sn̄r luy avera en la gard tanque al pleine age de luy , cestascavoire , ans . mes veies le stat. car. . cap. . ꝑ quel tout ' tenures sont verie en free & common soccage . sessions . sessions est un seiance des justices en court sur lour commission : come les sessions de oyer & terminer , pl. cor. fo . . quarter sessions . auterm̄t appel ' general sessions , ou overt sessions , el. c. . encounter q̄ux sont private ou especial sessiōs , queux sont ꝓcure p̄ asc ' especial occasion , p̄ le pluis subite fesāce de justice , cromp. just . de p. fo . . queux choses sont enquirable en general sessions , veies cromp. ut supra , & fo . . petit sessions , ou statute sessions , sont tenus ꝑ le hault cōstable de chesc ' hundred , pur le placing de servants . an. . el. c. . in fine . severance . severance est le mitt ' hors de un ou plusors que sont joyne en un brief : come si deux sont joyn̄ en un br̄e de libertate probanda , & puis lun soit nonsuit , en cest case severance est permit , issint q̄ nient obstant le nonsuit de lun le auter poit severalm̄t ꝓceed , f. n. b. fol. . de c ' veies brook tit . severance & summons , f. . car est pluis dur̄ a cognostre en queux cases severance est ꝑmit , q̄ quel y est . la est auxy severance en assise , veil livre d' entries , f. . col . . et severance en attaint , f. . col . . et severance en det , f. . col . . et severance en quare impedit , coke , lib. . f. . sewers . sewers semble destre un parol compound des deux parols francois , seoir , sedere , & eau , aqua , pur ceo que les sewers sont commissioners que seont , per virtue de lour commission & authority foundue sur divers statutes , d' inquire de touts nusances & offences faits per lestopper des rivers , erecter des molins , non repairer des banks & bridges , &c. & pur taxer & rat ' touts queux poit concern , p̄ le amēder des touts defaults que sont al hindrance del frank passage del eau per ses vieux & ancient currants . veies le stat. h. . cap. . & h . cap. . pur le forme de lour commission . shack. shack est un peculiar nosm̄ de com̄on use en le pays de norfolk , & avers , de aler a shack , est rant adire come de aler a libertie , ou de aler alarge . et cest common appelle shack , q̄ en le commencem̄t fuit forsque en nature de un feeding , pur cause de vicinage , p̄ avoiding 〈◊〉 suits , en ascun lieus dein cest pays est ꝑ custom alter en nature dun common appendant ou appurtenant , & en ascun lieu ● c ' retaine son original nature . coke l. . f. . shewing . shewing est , quietum esse cum attachiamento in allqua curia , & coram quibuscunque , in querelis ostensis , & non advocatis . soc. soc est secta de homin̄ in curia vestra , secundum cōsuetud regni . soccage . tener en soccage est , a tener ● ascun seigniour terres ou tenements , rendant a luy un certaine rent ꝑ an p̄ touts man̄ers des services . tener per soccage nest pas ten̄ per service de chivaler , ne la appent gard , marriage , ne relief : mes ils doubleront un foits lour rent apres le mort lour ancestor , solonque ceo q̄ soloyent payer a lour seigniour . et ils ne serront ouster measure greeves , come il appiert en le treatise de gards & relief . et nota , que soccage est , en trois manners ; cestasc ' soccage en frank tenure , soccage en ancient tenure , & soccage en base tenure . soccage en frank tenure est quant un tient de un ꝑ fealty & certain rent pur touts manners d' services , come devant est dit . et de touts terres tenus en soccage le procheine amy avera le garde , a que le heritage ne purra my discender tanque al age le heire del ans : cestascavoir , si le heritage veign̄ per le part le pere , ceux del part le mere averont le gard ; & contra . si gardian en soccage fait waste , il ne ferra my impeache de waste , mes il rendra accompt al heire quant il viendra al pleine age 〈◊〉 ans . et veies l' stat. de marlebridge ca. . pur cest matter . soccage de ancient tenure est ceo lou les genes tenoyent en ancient demesne , que ne soloyent auter br̄e avoir q̄ le br̄e de droit close , que fuit determine secundum consuetudinem manerii , & l' monstraverunt ; pur eux discharge quant lour sn̄r eux distreine pur faire auter services que duissent . cest breif d' monstraverunt doit estre port envers lour sn̄r : & ceux tenants teignent touts per un certaine service , & sont franke tenants de ancient demesne . soccage en base tenure est , lou home tient en ancient demesne , que ne poit aver le monstraverunt , & pur ceo il est appel le base tenure . sockmans . sockmans sont les tenants ē anciēt demesne , queux tient lour terres ꝑ soccage , cest adire , ꝑ service ● l carue , & p̄ ceo ils sont appelle sockmans , que est tant adire come tenāts ou homes queux tient per service del carue , ou hōes del carue : car sok signifie un carue . et ceux sockmaus , ou tenants en ancient demesne , ont plusors & divers liberties done & grant a eux ꝑ l' ley , cybien ceux tenants q̄ux tient de un cōmon person , come ceux q̄ux tient del roy ē ancient demesne ; come nosmement destre quite de payer toll en chescun market , fair , ville , citie , per tout le royalme , cybien p̄ lour biens & chattels que ils vende as auters , come pur ceux choses que ils achateront p̄ lour provision . et sur ceo chescun de eux poit suer de aver letters patents desouth le seale le roy , directe a ses officers , & al maiors , bailiffs , & auters officers en le royalme , de suffer eux destre quit de tolle : destre exempt del leers & 〈◊〉 turns de vic' : item destre quit de pontage , murage , & passage ; & auxy de taxes & tallages grant per parliament , s ●● on que l' roy taxe ancient demesne , come il poit a son pleasure , pur grand cause : destre quit de payment a les expences del chivalers del shire , queux vient al parliament . et si le viscount voil distreyner eux ● ou ascun de eux , destre contributorie pur lour terres en ancient demeine , donques l' un de eux , ou touts , come le case require , poir suer un brief directe al viscount , luy commanda ● t que il ne compelle eux destre co tributories al expences de chivalers et m ● sme le brief luy command auxy , que si il ad distrain eux pur ceo , que il redeliver m̄ le distresse . item que ils ne deveront estre impannel , ne mis en juries & enquests en le pays h ● rs de lour mannor ou seigniory de ancient demesne , p̄ les terres queux ils teigne la , s ● non que ils out auters terres al common ley , pur queux ils deveront estre charge . ) et si le viscount retourne eux en pannels , donques ils poyent aver un brief direct a luy de non ponendis in assisis & juratis : et sil face al contrary , y gist attachment envers luy . et issint est auxy si les bailiffs des franchises , queux ont retorn des briefs , voile returne ascun del tenants queux reigne en ancient demesne en assises ou juries . sodomy . sodomy , en le indictment p̄ ceo offence est dit , rem veneream habuit & peccatum illud sodomiticum ( inter christianos non nominandum ) felonice commisit . spoliation . spoliation est un suit p̄ les fruits dun esglise , ou pur le esglise mesm̄ ; & est destre sue en le spiritual court , & nemy en le temporal . et cest suit gist pur un encumbent envers un auter , lou i ● s ambideux claime per un patron , & lou le droit del patronage ne vient en question ou debate . cōe si un parson soit cree ū evesque , & ad dispensation de ten̄ son rectorie , & puis l' patron ꝑsent aut ' encumbēt , q̄ est institute & induct : ore evesque poit aver envers cestuy encumbēt un spoliati●n en le spiritual court , pur ceo que ils ambideux claime ꝑ un patron , & le droit del patronage ne viēt en debate , & p̄ ceo q̄ le auter encumbent vient al possession del benefice per le course del ley spiritual , cestascavoir , per institution & induction , issint que il ad colour de aver ceo , & destre parson ꝑ le spiritual ley : car anterment , sil ne soit institute & induct , &c. spoliation ne gist envers luy , mes pluistost un brief de trespass , ou un assise de novel disseisin , &c. issint auxy est lou un parson que ad pluralitie accept auter benefice , per reason de que le patron present un aut ' clerk a que est institute & induct : ore le un de eux poit aver spoliation envers le auter , & donques viendra en debate si il ad un sufficient pluralitie ou non . et issint est de deprivation , &c. mesme le ley est , ou un dit a le patron , que son clerke est mort , sur que il present un auter : la le primer encumbent , que fuit surmise destre mort , poit aver un spoliation envers le auter . et issint en divers auters sēblables cases , de ques veies fitz. nat. br. fo . . ● . &c. stablestand . stablestand est un terme del forrest leys , quant un est trove esteant en le forrest ove son arc tend prist de escocher , al un dame , ou ovesque ses levriers en un lesse prist de glisser . veies manw. for. leys , ca. . fo . . b. stallage . stallage signifie argent pay pur pitching stalles in nundinis & mercat ' , ou le droit de ceo faisant . standard . standard . veies estandard . stannary . stannary sont courts ꝑ ancient custom teigne en cornwal p̄ suits concernant le trade de tin. statute-merchant . tener per statute-merchant est , lou hōe conust a payer deniers a un auter a certain jour devant l' maior , bailiff , ou auter gardein de ascun ville que ad poyar de faire execution de mesme le statute , & si le obligor ne pay a le det a le jour , & rien de ses biens , terres ou tenements ne purront estre troves deins le gard le maior ou gardein avantdit , mes en auters lieux dehors , donques le recognisee suera le recognisance & obligation ove un certification a la chancerie desouth le seale le roy , & il avera hors de la chancerie un capias al viscount del county lou il est , de luy prender , & mitter luy en prison , si il ne soit clerke , tanque il ad fait gree de la dette . et un quarter de le an apres ceo que il serra prise , il avera sa terre deliver a luy mesme , pur faire gree a le partie de le dette : & il poit vender sa terre tanque il est en prison , & son vendition serra bone . et si il ne face gr ● e deins le quarter dun an , ou sil soit returne que il nest trove , & sil ne soit clerke , adonques le recognisee , poit aver brief de le chancery , appel extendi facias , direct al ascun viscount , de ● extender les terres & biens , & les biens a luy deliver , & luy seiser en ses terres , a tener eux a luy , ses heires & assignes , tanque le dett soit levie ou pay ; & pur cel temps il est tenant ꝑ statute-merchant . nota , que en un statute-merchant le recognisee avera execution de touts les terres que le recog●● sor avoit jour de la recognisance fait , & ascun temps puis , per force de m̄ le statute . et quant ascun wast ou destruction est fait per le recognisee , ses executors , ou celuy que ad son estate , le reconisor ou ses heires averont mesme la ley , come est suisdit ● le tenant ꝑ elegit . si le tenant per le statute-merchant rient ouster son terme , cestuy que ad droit poit suer envers luy un venire fac ' ad computandum , ou enter tantost , sicome sur tenant ꝑ elegit . veies l' statute ● e. . & de acton burnel , & e. . de mercatoribus . starr-chamber . star-chamber fuit un haut court teigne in camera stellata a westm . devāt le roy , les peers & judges , abolish ꝑ stat. . car. . cap. . sterbrech . sterbrech , alias strebrech , i. viae fractio , obstructio , vel diminutio . stilyard . stilyard est un parol use en le statute de h. . cap. . lou les merchants teutonicks sont appelles les merchants del stilyard , que est un lieu ē londres lou ceux merchants ou le fraternity deux ad lour abode . et c ' mease est dit destre issint appel , p̄ c ' q̄ edefie sur un court pres le thames , ou aeier soloit destre usualment vendus . sub poena . sub poena est le nosm de un brief fait en divers courts de ley & equity ; viz. in chancery & touts auters courts a sūmoner tesmoins , & en ceo court & en le exchequer en ley & equity , & in le common pleas sur informatiōs , qui tam , &c. & issint en le crown office sur informations . suffragan . suffragan est un parol use en le statute de h. . cap. . & signifie un titular evesque , ordeine de ayder & assister l' evesque des dioces en son spiritual function . et est appel suffraganeus en latine , pur ceo q̄ per son suffrage ecclesiastical causes sont estr̄ adjudges . suggestion . suggestion est , un information trahe en escript , monstrans cause per aver un prohibiton , quel est relinque en court , & est mention en le sat. ed. . cap. . sumage . sumage semble destre toll pur carriage per chival . crompt . jurisd . f. . summons ad warrantizandum , &c. summons ad warrantizandum , & sequatur sub suo periculo : veies de ceux apres en le title voucher . supercargo ou supracargo . supercargo ou supracargo , est un factor ou agent q̄ ale ove un neif ouster le mere per order del proprietor des merchandizes en ceo , & dispose d'eux : et le master del neif est oblige a performer les orders de tiel factor ou supercargo . supersedeas . supersedeas est un br̄e que gist en divers cases , come appiert ꝑ f. n. b. f. . a. mes est touts foits un precept p̄ tarier asc ' processe en ley , q̄ auterm̄t doit ordinariment queceder . supplicavit . supplicavit est un brief issuant hors del chancery direct al viscount & ascons justices del peace en le countie , ou al un ou pluis justices del peace sans le visc ' p̄ le prender del suretie d'un tiel vers que est prie , que il gardera le peace : & ceo est ꝑ le scatute e. . c. . veies f. n. b. f. . c. & veies ore le statute de jac. c. . sur cui in vita . sur cui in vita est ū br̄e q̄ gist p̄ l' heir d' un inheritrix , lou le baron alien l'inheritāce sa feme , & le feme morust devant que el ad ceo recover en un cui in vita . veies de ceo f. n. b. f. . c. surplusage . surplusage venust del francois surplus , id est , additamentum , & signifie ē le ley , ū addition plus q̄ besoigne , que ascun foits est le cause que ū br̄e abater̄ , mes en pleader mults foi ● s est absolutement void , & le residue del plea estoyera bon . surrej ● ynder . surrej ● ynder est un respons al rejoin ● del defendāt , ou un second enforcemēt del declaration le plaintif . surrender . surrender ( sursumre ● ditio ) est le consent d'un particular tenant , que cestuy en le reversion ou le remainder viendr̄ maintenant al possession . et ceo est ou ū surren ● ē fait ꝑ un actual redoner ● l estate ; on ē ley , ꝑ acceptance d'un novel lease , ou tiel aut ' act . veies de ceo perkins , c. . auxi est un act fait al seineur del mannor ou son senescal de estate copy-hold , ou fait per special custome d'ascun mannors , a deux copy-hold tenants del mannors , quel surrender , doit estre present al ꝑcheine court baron . swainmote . swainmote , ou swannimote , est un court tenus trois toits en un deins un forrest , ꝑ le statute de charta de foresta , c. . p̄ touts les frāktenants del forrest ; car issint l' etymologie del parol monstr̄ , mote en le language norma ● nis significant un court , & swain en le saxon un charterer , ou franktenant : issint que swainmote est le court des franktenants . veies 〈◊〉 c ' 〈◊〉 . fo. l ● ys , c. . 〈◊〉 ● 〈◊〉 & c. ● large . swainmote , ē cest court , presentm̄ts ● offēces al forestou game sont faits & dones eins justices en eyr . syb & som. syyb & som , i. pax & securitas . l. l. eccles . canuti regis , c. . symony . symony est un contract illoyal fait p̄ aver un home present al rectory ou vicarage , quel est prohibite ꝑ stat. eliz. cap. . t. fee-tail . tener en le taile est , lou home tient certain terres ou tenements a luy & a ses heires de son corps engendres . si le terre soit done a un home & a ses heires males , & il ad issue male , il ad fee-simple ; que fuit adjudge ē parliam̄t . mes lou tr̄s ou tenements sont dones a un hōe & a ses heires males de son corps engendres , il ad fee-tail , & l'issue female ne serra inherite ; ut patet anno e. . en un assise , e. . . fee-taile est , lou terre est done a ū home & a ses heires de son corps engendres ; & il est dit tenant en le taile gen ral . si terre soit done al baron & feme , & al heires de lour deux corps engendres , ore le baron & la feme sont tenants en le taile especial . et si un d'eux devie , cestuy q̄ survive est tenant en le taile apres possibilitie d' issue extinct ; & si il face waste , il ne serra impeach de ceo . vide littleton . mes si le roy done terres a un home a fes heires males , & le donee devie sans issue male ; donques le cosin collateral del donee ne enheritera , mes le roy re-entra : & issint fuit adjuge en l'exchequer-chamber h. . en un information fait vers l' heire de sir t. lovel chivaler . taile apres possibilitie . tener en le taile apres possibilitie d' issue extinct est , lou terre est done a un home & sa feme , & a les heirs de lour deux corps engendres , & l' un d'eux survive l' auter sans issue enter eux issuant ; il tiendra le terre a terme de sa vie demesne , come tenant en le tail ap̄s possibilitie d' issue extinct : & non obstāt que il fait waste , il ne serra jammes impeach de ceo . et si il alien , celuy en le reversion ne avera brief d' entre in consimili casu , mes il poit enter , & son entre est congeable , per r. thorpe chief iues ; tice , e. . . & e. . . tales . tales est un supplie de homes impannel ' sur un josie ou enquest , & nient apparant , ou a ● lour apparance challenge pur le plaintiff ou defendant cōe nient indifferent , & en ce ● t case le judge sur petition granta an supplie destre fait ꝑ le vic' , d'ascuns homes la ꝑsent , egal en reputation ove ceux que fueront impannel : & sur c ' le verie act ● suppliant est appel tales de circumstantibus . cest supplie puit estre d'un ou pluis , & de cy plusors cōe ou ferront default ou serront challenge ꝑ asc ' ꝑ ●● e. stamf. plac. cor. l. . c. . uncore cestuy q̄ avoit ad un tales , ou sur default ou challēge , com̄t il ne poit aver un aut ' uncor̄ il ne poit aver le darreine de container cy plusors cōe le prim̄ : cur le prim̄ tales doit estre desouth le nōbre del principal pan̄el , sinon en un cause d' appeale ; & issint chesc ' tal ' meins que aut ' , jesque le nombre soit repleit d homes present en court , & tiels que sont sans exception al partie ou parties . veies stamford ē le lieu devant , ou vous poyes trover ascuns exceptiōs , al cest general rule . veies brook , f. . & coke , l. . f. . bewfages case . talwood . talwood est un terme use en les statutes & h. . c. . & e. . c. . & el. c. . & signifie tiel bois q̄ est coup en brief billers , pur le sizer des queux ceux statutes fueront ordeines . tax & tallage . tax & tallage sont paym̄ts , come dismes , quinzisms , subsid , ou tiels sēblables , grant al roy ꝑ parliam̄t . les tenants en ancient demesne sont quites de ceux taxes & tallages grants per parliament ; sinon que le roy taxe ancient demesne , come il poit quant a luy pleist pur grand cause . veies ancient demesne . tenant paravail . tenant paravail . veies paravail . tender . tender est un act fait a saver un penalty d'obligation , & des denyers due p̄ rent ou contract devant distresse ou action port , & ou doit estre plead , & ou refusal est ꝑemptory . vide coke , instit . , , . & uncore prist . tenure in capite . tenure in capite est , lou asc ' tient del roy come de son person esteant roy , & de son corone , come dun seigniorie per luy mesme en grosse , & en chiefe desuis touts auters seigniories : et nemy lou i ● s tient de luy come de ascun mannor , honor , ou castle , sinon certaine ancient honors ; ut patet in s ●● ccario . veies le stat. car. . cap. . terme dans . tener a terme dans nest forsque chattel en effect ; car nul action est maintainable envers termor qn̄t a recoverer le franktenement , nul franktenement esteant en luy . lease a terme dans est chattel real , & tou ● s biens moveables sont chattels personal . testament . testament est issint define ou expound en plowdens commentaries ; testamentum est testatio mentis , & est compound de ceux deux parols , testatio & mentis , que issint signifie . veray il est , que un testament est testatio mentis , mes que il est un compound parol , aulus gellius , lib. . cap. . denie ceo al un excellent lawyer , servius sulpitius , & dit , q̄ il est un simple parol , come sont ceux , calceamentum , paludamentum , paviamentum , & divers tiels semblables . et mult meins est agreementum un compound parol de aggregatio & mentium , com̄ est dit en le title de agreement ; car il ny ad nul tiel latine parol , simple ou compound : mes il poit nient obstant serve bien pur un ley - latine parol . et p̄ c ' il poit issint estre melior define ; testamentum est ultimae voluntatis justa sententia , eo quod quis post mortem suam fieri vult , &c. de testaments il y ad deux sorts , sc . un testament en escript , & un testament per parol , q̄ est appelle un nuncupative testament ; q̄ est , quant un home esteant malade , & pur pavor que mort , ou fault de memorie , ou de parler , voyt vener cy sodainment sur luy , que il serra prevent , si il demurt le scripture de son testament , request ses vicines ou amies de porter testmoigne de son darreigne volunt , & donques declare ceo presentm̄t per parols devant eux , q̄ apres son decease est prove per testmoignes , & mis en script per le ordinary , & donques il est ē cy bone force come si c ' ad al prim̄ en le vie del testator e ● r̄ mis en escript : except solem̄t p̄ terres , que ne sont devisable forsque ꝑ un testament mis en escript en la vie del testator . thanus . thanus est un perol q̄ asc ' foits implya un noble hom̄ , asc ' foits un frank-hōe , un magistrate , un officer ou minister , lambert verbo thanus skene dit , que est ū nosm̄● dignity , & appiert desire equal ove le fitz de un count. et thanus fuit un frank-tenant tiendront ses terres del roy : & un hom̄ prise ove le frang accuse de larcenie , null bon̄ testmoign̄ esteant port vers luy , devoit purger luy m̄ per le serement de hōes , ou de thanes . thanagium regis implia un certain ꝑt des terres le roy ou propertie , de que le rule & government appertient a luy q̄ p̄ ceo est appel thanus ; car demania d ● gis & thanagia significant un & mesme le chose . theftbote . theftbote est , quant home prist ascun biens dun laron , de luy favourer & maintainer : & nemy quant home prist ses biens demesūque fueront emblees de luy , &c. le punishment en ancient temps de theftbote fuit de vie & de member : mes a ore stamf dit que il est punish ꝑ ransome & imprisonment . sed quaere , car jeo pense ceo estre felonie . them. them , hoc est , quod habeatis totam generationem villanorum vestrorum cum eorum sectis & catallis , ubicunque in anglia fuerint inventa ; excepto quod si aliquis nativus quiet ' ꝑ unum annū & diem in aliqua villa privilegiata manserit , ita quod in eorū communiam vel gildam , tanquam unus illorum , receptus fuerit , eo ipso a villenagio liberatus est . tithes . tithes . veies dismes . title . title est , lou loyal cause est veigne a un home de aver chose que auter ad , & il nad ascun action pur ceo ; come title de mortmain , ou de enter pur condition enfreint . title de entre . title de entre est , quant un seisie de terre en fee fait feoffment de ceo sur cōdition , & le condition est enfreint : apres quel , le feoffor ad title de entre en le terre , & issint poit quāt a luy pleist , & per son entrie le franktenement serra dit en luy maintenant . et est appel title de entre pur ceo que il ne poit aver br ● ef de droit envers son feoffee sur condition , car son droit fuit hors de luy per le feoffment , le quel ne poit estre reduce sans entr̄ , & le entr̄ doit estr̄ pur le enfreinder de le condition . toft . toft est un lieu en que un mease fuit un foits esteant , mes est ore tout eschue ou erase . tol , ou tolne . tol ou tolne est pluis proper ● ent un payment use en cities , villes , markets & fairs , pur biens & cattals port la destre achate ou vende : & est touts foits destre pay per le achatour , & nemy per le vendor , finon que soit ascun custome al contrarie . il y ad divers auters tols ; come turn tol , que est lou tol est pay pur avers queux sont drives destre vendus , coment que ils ne sont vendus . tol travers est , lou un claime daver un ob . ou tiel semble tol , de chescun beast drive sur son terre . through tol est , lou un ville prescribe de aver certain tol pur chescun beast que ale through lour ville , ou pur chescun vint ou cent : que ne appiert destre cy unreasonable prescription ou custome , come ascuns on t suppose , nient obstant il soit per le hault chimin del roy , ( sicome ils ceo appel ) lou chesc ' poit loyalm̄t pass , si y ad quid pro quo : come si la soit un pont , ou tiel semblable commodity , purvey al costs & charges del ville , pur le ease ● travailers que chase mesme voy , per que lour journey est ou abridge ou fait le melieur , pur que donques ne poit tol estre demand loyalm̄t & ove bone reason de eux ? &c. mes divers citizens & burgesses sont quite de payer tol , per le grant del roy ou ses ancestors , ou claime c ' per prescription ou custome . issint auxy spiritual persons & religious homes fueront quite de tol pur lour biens & merchandizes achate & vendus , &c. mes ore le statute del h. . c. . voit que ils ne merchandisera . item ten̄ts en ancient demesne doient estre quite per toute le realme 〈◊〉 payer tol , cōe appiert devāt en le title sockman . et en touts cases ou tol est demand de eux que doyent aler , achate , & vende quire de tol , la le party ou parties greeve poyent aver un brief de essendo quietum de totonio , direct a luy ou ceux que issint demand tol contra al grant le roy ou ses progenitors , ou contra al custome cu prescription . tolt . tolt ( tolta ) venust del latine tollo , & est un brief ꝑ que un cause dependant en un court-baron poit estre illonques remove en le county court devant le viscount veies de ceo fitz nat. brev. fol. . f. & veil . n. b. f l. . a. tonnage . tonnage est un custom̄ ou impost pay al roy pur merchandize import ou export en tuns ; ou asc ' tiels vessels , solonque un certaine rate en chesc ' tun. et de c ' poies lier en les statutes de e. . c. . h. . c. . e. . c. . & jac. c. . mes especialment car. . c. . totted . totted est un term̄ use en le statute de e. . cap. . & signifie un note destre fait en le rolle des estreats que issuit hors del exchequer al visc ' , des touts tiels debts come sont payes al visc ' issint que ne poyēt estr̄ aut ' foits deman ● del party , ne le roy deceive . veies le statute . transcript . transcript , ceo pluis com̄unem̄t signifie le certification d'un record sur br̄e d' error hors de b. le roy en ireland en b. r. en angl ' , & de cel court en la court de exchequer chambre , car le record mesme nest certifie , mes un transcript : mes hors de c. b. & auters inferiour courts le record , est tout oustrement toll ꝑ le br̄e d' error , & remain in b. r. coke entr. . , . travers . travers asc ' foits implia a denyer , ascun foits a subverter ou defaire un chose fait . pur le prim̄ , westm . p. . sect . . parlante d'un respons a un bill en le chācery , dit , que il est c ' q̄ le defendant pleade ou dit en barre de avoider le bill del pl ' ou action , ou ꝑ confession & avoydance , ou per deniant & traversant des material points du yeel ; et arere sect. un replication est le parlance del pl ' ou reply al respons del defendant , q̄ doit de affirmer & pursuer son bill , & conusire , & avoyder , denyer , ou traverser le respōs del defendant ; & les formal parols de cest travers sont , sans ceo , ou en latine , absque hoc . veies kitch . fol. . l'auter significatiō est trove en stamf. prerog . cap. . per tout le chapter , que parlāt del traversing d'un office , dit , que c ' est ● lens auter forsque approver que un inquisition fait de biens ou terres per le esch aror est defective , & fauxment fair . issint traversing d'un indictment est , a prender issue sur le prim̄ matter du yeel , que est riens auter que a faire contradiction , ou denyer le point ● l endictment : com̄ en presentment vers a ● ur un hauit chimin surround ove eau , pur defaulte de escourance d'un fosie que il & ceux que estate il ad en certain̄ terres l ● on t use d' escowrer & clenser , a poit traverser ou le matter , cest adire , que la nest asc ' hault chimin la , ou que le fosse est sufficient escowre , ou auterment il poit traverser le cause , que il nad le terre , &c. ou que il & ceux que estate , &c. on t use de ● scowrer le foste , lamb. ● t eirenarci ● . l ● b. . pag. . de travers . veies tout le chapter en kitch . fol. . & le veil livre de entries , verbo travers . treason . treason est en deux manners , cestascavoire , hault treason , & petit treason , com̄ est ordeine per les statutes . et ideo vide statuta , & stamford , lib. . cap. . treasure trove . treasure trove est , quant asc ' money , ore , argent , plate , ou bullion est trove en asc ' lieu , & nul conust a que le property est ; donques le property de c'appertient al roy. mes si ascun mineral de metal soit trove en ascun terre , ceo touts foits pertient al seignior del soile , forsque que il soit mineral del ore ou argent , queux serroit touts foits al roy , en quecunque soile q̄ il soit trove . trespas , transgressio . transgressio est un brief ou action de trespas , de queux la sont deux sorts . l' un vicountiel , issint appel , pur ceo q̄ il est direct al visc ' , & nest returnable , mes destr̄ determine en le countie : le forme de que differt ● l auter , p̄ c ' que nad ceux parols , quare vi & armis , &c. f. n. b. fol. . g. l' auter est direct al visc ' auxy , mes est returnable en bank le roy ou le common bank , & avoit touts foits en ceo ceux parols , quare vi & armis , ou auterment il abatera , come appiert en fitz. n. b. fol. . h ; sinon que soit un trespasse sur le case , & adonq ' les parols , vi & armis sont waive hors , & en lieu d'eux le brief dirra en le fine de c ' , contra pacem , &c. come appiert en f. n. b. fol. . c. et uncore en ascuns cases trespasse sur le cise serra vi & armis auxy , coment que nemy en le point del action , ou le causa causata , uncore en le conveyance al action , & le causa causante , come est bi ● n distinguish ē le count de salops case , in coke , l. . . b. trial. trial , la sont plusors mannersd ceo : come des matters en fact , que serront trie ꝑ les jurors ; matters en ley , per les justices ; matters de record , per record m̄ un seignior de parliament , sur indictment de treason ou felonie , serra trie per ses peers , sans ascun s ● rement , sur lour honours & allegiances ; mes en appeale al suit de ascun subjects is serra trie per pro● os , & legales homines . si ancient demesne soit pleade de un mannor , & denie , c ' serra trie per le record del 〈◊〉 de 〈◊〉 en l' eschequer . un apostata serra certifie per le abbot ou auter rel ● g ● ous governour a que il doit obedience . general bastardie , excon mengement , ● oyaltie de matrimonie , profession , & divers auters matters ecclesiastical , serront tries per le certificate del evesque . et un grand number des auters trials la sont , de queux veies coke lib. . le case 〈◊〉 le abbot del strata marcella . fol. . per testes de morte viri in dower , ou le tenāt plead q̄ le baron del demandant est vivant . rast . entr. . tronage . tronage , est un certaine toll prise p̄ weighing . westm . c. . & edw. . trover . trover est un action que home ad vers un auter , que aiant trove ascun de ses biens , refusa a deliver eux sur demande . veies le veil livre de entries , parol trover . tumbrel . tumbrel , veies en le title cuckingstool ; & veies le statute de h. . cap. . pur le use de ceo . turbary . turbary ( turburia , del vieux latine ꝑol turba , q̄ fuit use pur un turf ) est un interest de foder turfs sur un common : et trovers un assise port dun tiel common de turbary en assise , pl. . & e. . fol. . b. turne del viscount . turne del v ● scount est un court de record en touts choses que ꝑtain̄ al turn , & est le leet le roy per tout le countie , & le visc ' est judge . et quecunque ad un leet , ad mesme le authority deins le precinct sicome le viscount ad deins le turne . ce ●● court est destre tenus deux foits chescun an , un foits apres pasche , & arere puis michaelm̄ , & c ' deins un mois apres chesc ' feast , an. e. . cap. . de cest court sont exempt solement archievesques , evesques , abbots , priors ; countes , barons , religious homes & femes , & touts ceux queux ont hundreds de lour demesne destre tenus . cest court est apperteinant & incident al office ● l visc ' & ne doit estre sever de ceo ; & le vise ' est de constituer clerk south luy en c ' court , tiels p̄ que il voile a son peril responder : mes il ne poit ꝑscriber de prender asc ' chose p̄ le tener 〈◊〉 son turne , p̄ ceo que il est un officer removeable . veies coke , l. a. & l . . & daltons livre de viscounts . tit . sheriffs turne . v. vacation . vacation . veies plenartie . vagabonds . vagabonds , sont idle & inutile homes , puniable per stat. el. . & jac. . & . value del marriage . valore maritagii est un br̄e que gisoit p̄ le sn̄r vers son gard , p̄ recover vers luy le value de son marriage a son plein age , p̄ ceo que ne fuit marrie ꝑ son sn̄r deins age . et ceo br̄e gisoit coment que le seignior ne unques tender al gard ascun convenable marriage . veies palmers case , coke l. . f. . b. & le stat. ● car. . c. . venditioni exponas . venditioni exponds , est un judicial brief direct al viscount a vender biens seize ꝑ un fieri facias . venew . venew ( vicinetum ) est un terme use en le stat. 〈◊〉 h. . c. . & frequentm̄t ē nr̄e livres , & signifie un lieu prochein a ceo lou ascun chose que venust destre trie est suppose destre fait . et pur ceo pur le mellor discoverie del veritie del matter en fait sur chesc ' trial , ascun des jurors serront del mesme le hundred , ou asc ' foits de mesme le parish ou neighbourhood , en que le chose est suppose destr̄ fait , queux per entendment poient aver le melieux conusance ● l chose . veies arundels case , coke , l. . f. a. venire facias . venire facias est un proces direct al viscount , ou as coroners ( si le viscount est estallenge ) a summon un jury a tryer un issue joine ꝑenter partie & partie , ou le roy & un subject ; & est auxy un proces super audita querela , ou sur indictment en bank le roy , & venire facias ad computandum vers tenent per elecit . verderor . verderor est un officer ē les forrests del roy , essieu ꝑ les franktenants del countie lou le forrest est , ꝑ brief direct al visc ' 〈◊〉 c ' faire , come appiert per les livres del register , & del natura des briefs : & sont appelles en latine viridarii , de le parol viridis , en anglois green , en francoes verd ; car ū grand ꝑt de lour office est touchant le verd , cestascavoir , le boies & herbes cressant en le forrest ; p̄ quel veies pluis en le charter & leys del forrest . verge . verge est le compass environ le court le roy q̄ limit le jurisdiction del seignior seneschal & del coroner del hostel le roy issint q' il ne poit intermeddle deins le countie hors del verge , p̄ ceo que son office ne extende a ceo ; come le coroner del coūtie ne entermedler̄ deins le verge , que est exempt hors de son office ꝑ le common ley. et semble enconter reason , que lour offices & jurisdictions esteant several , l' un entermedlera deins le jurisdiction del auter . et cel verge semble destre douze milliares . veies r. . stat. . c. . f. n. b. f. . britton , f. . fleta , l. . c. . coke , l. . f. . h. . c. . verge en un auter signification est use p̄ un stick ou rod ꝑ que un est admit tenant & tiendront ceo en son maine , fait serement de fealtie al seignior del mannor , & pur ceo est appel tenant per le verge . veies veil n. b. f. . & littl. l. . c. . vert. vert venust de francois verd , & signifie ovesque nous en les leys del forrest chescun chose que cresce & port un fueille verde deins le forrest : & est divide en over vert & nether vert. over vert est le hault bois , & nether vert est le south bois . la est auxy en forrests un vert appel special vert , & c'est touts arbres crescants en les demesne bois le roy deins le forrest , & touts arbres queux crescōt ley ē les bois ● s aut's , sils sont tiels arbres queux portont fruicts p̄ le fod ● des dames : & ceux sont dits special vert , p̄ ceo q̄ le destroyer de tiel vert est pluis grandm̄e punie q̄ le destruction d' auter vert est . veies manwoods for. leys , c. . f. . a. vicountiels . vicountiels sont fermes issint appelle , p̄ quel le visc ' paye certien rent al roy , & fait le melieur ꝓfit ● ceux q̄ il poit . vies le stat. & h. . c. . view . view est , quant ascun action real est port , & le tenant ne scavoit bien quel terre il est que le demandant demand ; donques le tenant priera le view , sc . que il poit veier le terre q̄ il claima . mes si le tenanc ad ew le view en un brief , & puis le brief est abatus per misnosmer de le ville , ou pur joyntenure , & puis le demandant port un auter brief vers le tenant ; donques le tenant navera le view en le second brief . view de frank pledge . view de frank pledge ( visus franci plegii ) est le poyar ● ten̄ un tourn̄ ou leet , en queux courts chesc ' frāke-hōe en ancient temps deveigne lye ove sureties al age de ans pur son fidelitie al roy & ses subjects . et sur ceo ceux courts fueront appels le view de frank pledges , cestascavoir , des tiels frank-homes queux deveignont icy pledges ou sureties l'un p̄ l'auter . veies deciners . vi laicaremovenda . vi laica removinda est un brief que gist lou debate est perenter deux parsons ou provisors d'un esglise , & l'un enter en l'esgllse ove grand power 〈◊〉 lay-hōes , & tient l' auterdehors ove force & arms ; celuy que est tenus deliors aver̄ le dit brief direct al visc ' , que il remova cest power que est deins l'esglise : & serra command al visc ' , q̄ sil trove asc ' hōes luy resistant , q̄ il p̄ndra ovesque luy la poyar de son countie , si besoigne soit , & ferra attache per lour corps touts ceux luy resistants , & les mittera en prison , issint q̄ il eyt lour corps devant le roy a certeine jour , de responder del contempt . et cest brief est retournable , & ne serra grant , devant que l' evesque del lieu lou tiel esglise est eyt certifie en le chancerie tiel resistence & force . villein & villeinage . tener en pure villeinage est , a fair̄ tout ceo que le sn̄r luy voit commander . le division de villainage est , villeine de sanke , & de tenure . et il est villein de que son sn̄r prent redemptiō de sa file marrier , & soy mesm̄ enfranchise : & le seigniour puit luy ouste de ses terres ou tenements a sa volunt , & auxy de touts ses biens & chateux . sockman nest pas puer villein , ne villein doit pas garde , marriage , ne relief , ne fair auters services reals . tenure en velleinage ne ferra frank home villein , sil ne soit continue ouster le tēps de memory : ne villein terre ferra frank home villein , ne frank terre ferra villein frank ; sinon que le tenant avoit cōtinue frank ouster le temps de memory . mes un villein ferra frank terre villein per seisin , ou ꝑ claime de son seignior . si villein purchase terre , & prent feme , & alien , & devy devant le claime ou seisin de son seigniour , la feme serra endowe . en case le seigniour port praecipe quod reddat envers le alienee son villein , le quel vouch a garranter le issue de le villein q̄ est villein al seigniour il avera le voucher . et per protestation le seigniour poit ( non obstant que il plede ove son villein ) save que son villein ne ferra my enfranchise . bastard ne serra jammes adjudge villein , sinon ꝑ conusans en court de record . si det soit due per un sn̄r a un frank home , & il face deux homes ses executors les queux sont villeins al dit seigniour , & devie , les villeins averont action de det envers lour seigniour . et nient obstant que il plede ovesque eux , & if face protestation , ils ne serront pur tant enfranchise ; pur ceo que ils sont de recover le det al use de ū auter person , cestascavoir , lour , testatour , & nient a lour use demesne . et si le tenant en dower eyt un villein , le quel purchase certain terre en fee , & puis le tenant en dower enter ; el avera le terre a luy & fes heires a touts jours . et mesme le ley est de tenant a terme de ans de un villein . le seigniour poit rob , nau frer , & chastifer son villein a son volunt : salve que il ne poit luy maim , car donques il avera appel de maihem envers luy . un villein poit aver trois actions envers son seigniour ; cestascavoir un appeale de mort son ancestor , un appeale de rape fait a sa fem̄ , & un appeale 〈◊〉 maime . si deux parceners port brief de n ● efty , & l'un de cuu soit nonsuit , le nonsuit de luy serra adjudge le non-suit ● ambideux , issint que si le nonsuit soit ap̄s appearāce , ils serront barre de cest actiō a touts jours ; car le ley est tiel in favorem libertatis . si deux ount un villein en common , & l' un 〈◊〉 eux fait a luy manumission , il ne serra my infranchise envers ambideux . en brief de nativo habendo , il covient que le sn̄r monstre coment le defendant aveigne privy de sank a celuy villein de que il est seigniour , &c. et si il ne nul de ces ancestors ne soit seisie de nul de son sanke , il ne gainera per son action , si le villein nad pas conus en court de record luy estre son villein . en un brief de niefty ne purōt estr̄ mis plusors niefesque deux ; & hoc introductum fuit prius in odium servitutis . mes en br̄e de libertate probanda , purront estre mis tants niefes come le plaint voudera . si le villein soit fue en ancient demesne del roy , ou auter viile priviledge , deins lan & jour le seignior poit luy seiser ; & sil demurt en la dit ville ou lies franchise per un an & jour , sans le seisine de son seignior , il nad my power 〈◊〉 luy seisie apres , si il ne va dehors de suisdit franchise . ascuns sont villeins per title de prescription , cestascavoire , que tout lour sanke on t este villeins regardants a le mannor du sn̄r de temps dont memory ne eurr . et ascuns sont fait villeins per lour confession ē ū court de record . auxy le sn̄r poit faire un manumission a son villein , & luy infrachise a tout jours . si le villein port ascun action vers son sn̄r , si ne soit appeale de maihem , & le seignior a ceo sans protestation fait respons , per ceo le villein est franches . auxy si un villein p̄chase terre , & ad biens , & vend les terres & biens devant ascun entre ou seism fait ꝑ le sn̄r , la vender est bon̄ . mes le roy. sn̄r de villein en tiel case poit enter & seisier le terre apres tiel ven itiō fait : quia nullum tempus occurrit regi . note , que cel title & tenure sont abolie ꝑ statute car. secundi r. villenous judgement . villenous judgment est ceo que est done sur un indictment del conspiracy , scilicet , que le party trove culpable perdera son franke ley , ne serra plus mise en juries ou assises , ne aylors en testmoignance del veritie : & sil ad a faire en courts le roy , que face son attourney , & nemy vien̄ en son person demesn̄ : que ses terres , biens & chattels sont seisies en maines le roy , & estrepes , sil ne poit melior grace aver , & ses arbres erases , & son corps imprison . veies e. . fol. . b. & ass . pl. . virgata terrae . virgata terrae . veies yard-land . viscount . viscount est ou le nosme de ū degree ou state de honor soubs ū coūtee , & paramount ū baron ; ou le nosm̄ 〈◊〉 ū magistrate & officer del grand authority , que nous communement apellom̄ ( sheriff ) ou , de parler pluis veraimēt , ( shire reve , ) & fuit al prim̄ appel ( shire gereve ) cest adire , custos comitat ' , ou le reve ou ruler del countie ; car ( gereve ) est derive de saxon ꝑol ( gerefa ) i. un ruler . et de c ' vient ( portreve ou portgreve , ) un nosme en veil tēps don̄ al chief officer d'un ville , & signifie le governor del ville ; p̄ ceo que ( port ) veniens de latine ꝑol ( portus ) signifie un port-ville , & ( gereve ) esteant derive cōe est avantdit signifie ū ruler : issint que portgreve , ou , come nous a ore briefment ꝑle e ' , portreve est le governor del ville . et iffint fuit le chief officer ou governor del citie de londres long temps past ( devant que ils ad le nosme del maior ou bailiffs ) appel cōe il appiert en divers vieulx minuments ; mes principalm̄t en le saxon charter de guilliam le conquerour , que issint commence : william le king greit william biscop , & godfrey ges portgerefant , & dalle tha burwatren theon lon ● , beon , &c. issint is de germany ( de que nous & nour̄ language primerm̄t vient ) appel un governor burgreeve , ū auter margreve , & ū auter landsgreeve , ove tielx semblables , &c. cest tant est dit tant solement p̄ monstre le droit etymon & antiquity de parol ( sheriff ; ) a quel officer nostr̄ common ley ad touts foits done si grand confidence & authority , cōe destre un special preserver del peace . et p̄ ceo touts obligation que il prist a m̄ le purpose , sont cōe recognisances en ley. il est un judge de record quant il tient les leets ou turnes , les queux sont courts de record . item il ad le execution & return des bri ● fs , & impannelling des juries , & tiels sēblables , &c. vncore prist . uncore prist est un plee pur le defendant en det sur obligation , que esteant sue pur ceo , que ne paya le det al jour , plead , pur saver le forfeiture , q̄ il render , les deniers al jour & lieu , & que nul fuit la pur receiver , & dit ouster , que il est uncore prist , de payer . et lou home doit pleader ouster uncore prist , & lou nemy , veies en perkins , sect . , & . & coke , lib. . fol. . a , b. en peytor's case . volunt . volunt est , quant le tenant tient a le volunt del lessor , ou sn̄r : & ceo est ē deux manners . un est quant jeo face leafe a un hom̄ de terres , a ten̄ a ma volunt , donques jeo puisse luy oust ' a mon pleasure : mes si il emblee le tr̄e , & jeo luy ousta , donques il avera son embleement , & egresse & regresse jesques ils sont mature , pur eux scier & carier hors del terre . tiel tenant a volunt rest pas tenus de sustainer & repairer le meason , sicome tenant a terme de ans est tenus : mes si il fait voluntary waste , le lessor avera vers luy un action de trespasse . auxy la est auter tenant a volunt del seigniour , per copy de court-roll , solouque le custome de mannor : & tiel tenant poit surrender le terre en les main̄s le sn̄r , per le custome , al use d'un auter p̄ vie , en fee , ou fee taile ; & donques il prendra le terre del seigniour , ou son seneschal , per copy , & ferra fine al seigniour . mes si le seignior ousta tiel tenant . il nad remedy mes de suer per petition . et si tiel tenant voile impleade un auter des terres , &c. il covient enter un plaint en le court , & countera en le nature del quel brief il voit , sicome le case gist . voucher . voucher est , quant un praecipe quod reddat de terre est port vers un home , & un auter doit garrant le terre al tenant ; donques le tenant luy vouchera a garrantie , & ● ur ceo il avera un brief appel summoneas ad warrantizandum . et si le viscount retourne que il nad ri ens per que il poit estre summon , donques issera , brief appel sequatur sub suo periculo . et quant il vie ● , il pleadera ovesque le demandant . et sil ne vient , ou vient , & ne poit barre le demandant , donques le demandant recovera le terre vers le tenant , & le tenant recovera tant de tr̄e en value vers le vouchee ; & sur ceo il avera un brief appel capias ad valentiam vers le vouchee . vide plus de voucher devant , tit. garrantie . vses . uses de terre ad son commencement apres que le custome de propertie commence enter homes : cōe ou un esteant seisie de terres en fee-simple , fait un feoffm̄t al un auter sans asc ' consideration , mes solem̄t meaning que l' auter serroit seisie al son use , & que il mesm̄ voile p̄nder les profits de les tr̄es , & que le feoffee doit aver le possession & franktenem̄t de ceo al mesme le use , &c. ore ap̄s ceo , sur bone considerations , & p̄ avoider divers mischiefs & inconveniences , fuit le statute de an. h. . c. . purview , quel unite le use & possession ensemble , issint que il que ad le use de terre , ad le possession de ceo , accordant al use q̄ il avoit en ceo , ꝑ vertue de cest statute . vsurpation . usurpation est , pluis communement use quant ascun present un rector ou vicar al esglise sans bon title . stat. westm . . cap. . co. . rep. . & rep. . vsury . usury est un gaine d'asc ' chose ouster le principal , ou ceo que fuit lent , exact solem̄t en consideration de le loan , soit il 〈◊〉 corne , viand , apparel , wares , ou tiels semblables , come de monie . et icy mult poit estre dit , & divers cases mis concernants usurie , le q'ux 〈◊〉 p̄pose jeo omit : solem̄t jeo pria , q̄ ceux que accompt eux mesmes religious & bone christians ne voilent deceive eux mesm̄s per colour de le statute de usury , p̄ ceo q̄ le statute dit , q̄ il ne serra loyal p̄ ascun de prender ouster vi . l. en le c. l. pur un an , &c. ꝑ que ils collect ( mes fauxment ) que ils poyent per ceo prender vj. l. pur le loan d' un c. l. ove un bone conscience , pur ceo que le statute solonque un manner dispense ove ceo , ( p̄ ceo q̄ il ne punishe tielx prēdors . ) car dieu voile aver ses decrees observe inviolable , q̄ dit , lend , expectant nul chose pur ceo , &c. per queux ꝑolx est exclude le prisel de vj. l. v. l. ou de un denier ouster le principal . mes plus pensant tiels , q̄ cest statute fuit fait sur tiel semblable cause que movant moses de doner uu bill de divorce a les israelites , come nosmem̄t p̄ avoider un greinder mischief , & p̄ le duritie de lour coeurs . et le statute de jac. c. . ad ordeine expressement , que nul parol en cest ley serr̄ construe ou expound p̄ allower le practice del usurie en point de religion ou conscience . per le statute de eliz. c. . le loan monie fuit . l. per cent. per jac. c. . . l. per cent. & ore per le statute car. . c. . ceo est reduce al . per cent. vtlary . utlary est , quant exigent issist vers ascun home , d' appearer en asc ' court de faire respons al asc ' action ou indictment , & proclamation fait en cinque counties ; si le defendant ne appeare , donques le coroner donera judgm̄t que il serra hors de ꝓtection de roy , & hors del aide le ley. per tiel utlary en actions personals , le partie utlage forfeiter̄ touts ces biens & chateux al roy. et per utlarie en felonie , il forfeitera auxybien touts ses tr̄es & tenem̄ts que il ad en fee-simple , ou pur terme de sa vie , come ses biens & chateux . auxy mesque un home soit utlage , uncore si asc ' discontinuance ou errour soit en la suit del proces , le partie de ceo avera l' advantage , & per tiel cause l' utlagarie serra reverse & adnulle . si le partie defendant soit ouster la mer al temps del utlagarie pronounce , ceo est bone cause de reversal . si un exigent soit agard vers un home en un countie lou il ne demurrer pas , uncore un exigent ove proclamation issera al countie lou il demurre ; ou auterment sil soit sur ceo utlage , utlagarie poit estre reverse , come appiert ꝑ le statute fait an. . & a h. . cap. . auxy si un soit utlage en action personal al suit d'un auter , & puis il purchase son charter de pardon de roy , tiel charter ne serra jam̄ais allowe , tanque il ad sue un brief de scire facias de garner le ꝑtie plaintiff ; & sil appeare , donques le defendant respondera a luy , & luy barrer̄ 〈◊〉 sa action , ou auterment ferra agreement ovesque luy . vtlaw . utlaw . veies wave . vtlepe . utlepe significat escapium ( hoc est evasionem ) latronum . fleta lib. . cap. . vtrum . utrum est un brief que gist quant le droit d'ascun esgllse est aliene & tenus en lay-fee , ou translate en possession d'auter esgllse , & alienor devie ; donques son successor avera le dit brief per que un enquest serra charge de trier , utrum sit libera eleemosina ecclesia , vel laicum feodum . et nota , que nul que ad covent ou common seale poit mainteiner cest brief , mes brief d' entre fine assensu capituli , d' alienation fait ꝑ son predecessor . w. wage . wage est le donant securitie pur le performance d' asc ' chose : come a gager ley , & a gager deliverance , queux veies devant en gage . nul gagera ley encounter le roy , brook tit chose en action , num . . veies l ● y. waife . waife est , quant un laron ad felouioufment emblee biens , & esteant neerment pursue ove hue & crie , ou auterment surcharge ove le burden ou trouble des biens , p̄ son ease & plus speedie travaile , sans hue & crie , fua , & waiva les biens ou asc ' part d'eux arere luy , &c. donques l'officer del roy , ou le reeve ou bailiff al seignior del mannor , ( deins que jurisdiction ou circuit ils fueront waife ) que per prescription ou grant de roy ad le franchise de waife , poyent seiser les biens issint waife al use de lour seignio ● s , que poyent retaine eux come ses ꝓper biens , sinon que l'owner vient ovesque fresh suit apres le felon , & sue un appeal , ou done en evidence envers luy al son arraignmēt sur l'indictment , & il est attaint de ceo , &c. en queux cases le primer owner avera restitution de ses biens issint emblee & waife . mes niēt obst ' comēt ad este dit , waife est ꝓperm̄t 〈◊〉 biens emblees , unc ' waife poit estr̄ auxy de biens nient emblees : cōe si un hōe soit p̄sue ovesque hue & cry come un felon , & il sue & relinquish ses biens demesne , &c. ceux serr̄ prise come biens waife , & forfeit come sils ad este emblees . mes veies foxley's case , coke l. . f. . b. que ceux ne sont bona waviata , sed bona fugitivorum , queux ne sont forforfeits tanque soit trove devāt le coroner , ou auterm̄t 〈◊〉 record , que il fua p̄ le felonie . waive . waive est un feme que est utlage ; & il est appelle waive , quasi relicta a lege , & nemy utlage , come home est : car femes ne sont jures en leets al roy , ne al ley ; come homes sont , que pur ceo sont deins le ley ; & pur cest cause ils ne poyent estre dit utlage , entant que ils ne unques fueront deins ceo . veies fitz. n. b. fol. . a. mes un home est die utlage , pur ceo que il fuit un foits jure a le ley : et a ore pur contempt il est mis hors del ley , & dictus utlagatus , quasi extra legem positus . wapentake . wapentake est tout un ove c ' q̄ nons appellomus hundred , come appiert per bract. l. . tract . . c. . num . . in fine . lembers , en son explication ● saxon ꝑols , verbo centuria , ● it , que cest parol wapentake est plus especialmēt use a cest jour en les pays ouster le fluve de trent : et en les leyes del roy edw. ( per luy publie ) num . . il est fore plaine en ceux parols , et quod angli vocant hundredum , suprad ' comitat ' vocant wapentakium . les statutes an. h. . c. . & an. h. . c. . & anno h. c. . sont mention ● stainctise wapentake , & friendless wapentake en craven en le county 〈◊〉 everwicke . veies roger hoveden , part . poster . annal. fol. . warden . warden est de mesme signification come est le parol fran ● ois gardeine , & p̄ c ' veies pluis en le title gardein : mes il est le pluis usual parol in anglois , pur luy q̄ ad le custodie ou charge de ascun person ou chose ꝑ office ; come wardens 〈◊〉 fraternities en londres , anno h. . c. . warden courts , an. h. . c. . warden del marches , anno h. . cap. . ferry warden , an. eliz. c. . & an. eliz. cap. . wardens del peace , an. ed. . cap. . wardens del west-marches , cambden brit. pag. . warden del forrest , manwood part . p. , . warden del alnage , an. h. . cap. . warden del armour le roy en l' tower , an. . e. . c. . chiefe warden del forrest , manwood part . . pag. , . warden del wardrobe le roy , an. h. . stat. . wardens des tables del exchange le roy , an. ed. . stat. . c. . & an. h. . stat. . c. . wardens des rolles del chancery , an. e. . c. , & . wardens & communaltie des terres contributory ad rochester bridge , an. eliz. c. . et wardens des courts de stannaries , instit . . wardmote . wardmote est un terme mention en l' stat. d h. . c. . & signifie ū court que est ten ' ē chescun ward en londres , & est usualment appel wardmote-court , ou l' wardmote-inquest . warrantie . warrantie . veies garrantie . warrantia chartae . warrantia chartae est un brief q̄ gist pur cestuy que est infeoffe ove garrāty , & est apres implead en ū assise ouauter action ē q̄ ne poit vouch ; donques il avera cest brief vers le feoffor ou son heir , pur compell eux de garranter le terre a luy . et vies 〈◊〉 ceo fitz. n. b. fol. . d. vies garranty des charters . warrantia diei . warrantia diei est un brief que gist en case lou home ad jour en asc ' action sue vers luy 〈◊〉 appeare en proper ꝑson , & le roy a cest jour ou devant luy maund en asc ' service , issint que ne poit appeare al jour en court ; donques il poit aver cest brief direct as justices , que ils ne record luy destre en default p̄ son non appearance . et veies de ceo fiz . n. b. fol. . a. & pur le forme del br̄e veies glanvile lib. . cap. . warren . warren est un lieu privileged per prescription , ou grant del roy , p̄ le ꝑservation del leverers , cunicles , perdices , & phesants , ou ascun de eux . warwit . warwit , ( ou wardwit cōe asc ' copies ad c ' ) est quietum esse de denariis dandis ꝓ wardis faciendis . wast . wast est , ou tenant a terme dans , tenant de vie , ou tenant pur terme dauter vie , tenant ē dower , ou tenant per le curtesie , ou gardein en chivalry , fait wast ou destruction sur al terre , cestascavoir , sil debrusa meason , ou coupe merisme , ou suffer le meason voluntariment p̄ eschier , ou foder la terre ; donques cestuy en le reversion avera un brief pur cest wast , & recovera le lieu ou le wast fuit fait , & treble dammages . et si home coupe merisme sans licence , & ovesque ceo repair les ancient measons , uncore ceo n'est pas wast . e me ● si il ovesque le merismeun difiun novel meason , le couper de tiel merisme est wast . auxy le couper ce subboys ou willows , que nest pas merisme , ne serra dit wast , sinon que cressont en le view ou seit del meason . wast per le ley civile est appel dilapidation : & pur c ' l'executor d'un rector ou vicar & sont respoignable en court christian . est auxi un brief de wast permittendo messuagium vel domum , &c. fore in decasu & ruinosum . co. ent. . wharf . wharf est un parol use en le statute de eliz. c. . & auters statutes , & est un ample lieu procheine al creek ou hithe del eau , sur que biens & wares sont jects queux sont destre eskipts & transports del un lieu al auter . withernam . withernam est le prisure ou chaser dun distresse a un fortresse , ou hors del county , issint que le viscount ne poit sur replevin fair deliverance de ceo al party distraine en q'l case un brief de withernam est direct al viscount p̄ le prise 〈◊〉 tants de ses avers que issint illoyalment distraine , ou tants de les biens , en son custody , jesque il ad fait deliverance de le primer distress . auxy si les avers sont en un fortlet ou castle , le viscount puit prender ove luy le power del county , & debruser le castle , come appiert per le statute de westm . . cap. . brit. cap. . woodgeld . woodgeld semble destr̄ l' collection ou succider d' boys deins le forrest , ou argent prise p̄ m̄ al use de forresters . et le privilege de ceo per le grant l'roy , est per crompt . fol. . appel woodgeld . woodmote . woodmote est le veil , nosme de ceo court del forrest que a ore , apres le statute de charta de foresta , est appel le court des attachments , & ꝑ ceo statute est tenus chescun jours ; mes soloit destre tenus al volunt des chief officers del forrest , & nemy al ascun temps certain . veies manw. for. leys , c. . fol. . a. woolferthfod . woolferthfod est le condition de tiel que fueront utlage en le temps dels saxons p̄ nient submitterant eux m̄s al justice : car sils poyent estre prise en vise , ils serroient port al roy ; & sils en pavor de apprehension eux mesmes defenderont , ils poient estre tue , & lour testes port al roy ; car ils porteront le teste dun woolf , cest adire , lour teste ne fuit plus destre regard q̄ le teste d' un woolf , q̄ fuit un beast cy tortious al home . veies l'leys de roy edovart per lamb ' si . 〈◊〉 . & bracton . lib. . tract . c. . ceo est escrie . vulvesheaved per roger hoveden , part . poster . annal. fol. . wreck . wreck , ou varech , ( come les normans , de que il vient , appellont ceo ) est quant un niese est perish , sur le mer , & nul home escape vive hors de ceo , & le nief ou part del ceo issint perish , ou les biens del nief , vient al terre de ascun sn̄r , le sn̄r les avera com̄ un wreck de l' mer. mes si un hom̄ , ou un chien , ou chatte , escape vive , issint que le party a q̄ les biens sont veign̄ dans lan & jour , & ꝓve les biens destre ses , il avera arere , ꝑ provision del statute de westm . . cap. . fait en les jours del roy edw. . que en ceo followed le decree de h. . devant que jours , si un nief ad estre ject sur l'shore , torne ove tempest , & nemy repaire per eux que escapont en vie deins un certain temps , donques ceo fuit prise come wreck . y. yard-land . yard-land ( virgata terrae ) en asc ' counties contein acres , en asc ' , & en asc ' acres de terre . finis . notes, typically marginal, from the original text notes for div a -e v. j. cow. interpreter . reports of certain cases arising in the severall courts of record at westminster in the raignes of q. elizabeth, k. james, and the late king charles with the resolutions of the judges of the said courts upon debate and solemn arguments / collected by very good hands, and lately re-viewed, examined, and approved by justice godbolt ; and now published by w. hughes. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing g wing h _cancelled estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : or : ) reports of certain cases arising in the severall courts of record at westminster in the raignes of q. elizabeth, k. james, and the late king charles with the resolutions of the judges of the said courts upon debate and solemn arguments / collected by very good hands, and lately re-viewed, examined, and approved by justice godbolt ; and now published by w. hughes. godbolt, john, d. . hughes, william, of gray's inn. [ ], , [ ] p. printed by t.n. for w. lee, d. pakeman, and gabriell bedell, london : m.dc.lii [ ] "with two tables, one of the cases, the other of the principall matter therein contain'd." item at reel : identified as wing h (number cancelled). reproduction of originals in the british library and harvard law school library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy 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proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion reports of certain cases , arising in the severall courts of record at westminster ; in the raignes of q. elizabeth , k. james , and the late king charles . with the resolutions of the judges of the said courts , upon debate and solemn arguments . collected by very good hands , and lately re-viewed , examined , and approved of by the late learned justice godbolt . and now published by w : hughes of grays-inne esquire . with two tables , one of the cases , the other of the principall matter therein contain'd . quid juvat humanos scire & cognoscere casus ; si fugienda facis , & facienda fugis . london , printed by t. n. for w. lee , d. pakeman , and gabriell bedell , m.dc.lii . an alphabeticall table of the cases . a allen and patshals case , adams and wilsons case althams case ayliff and browns case astley and webs case arnolds case ashfield and ashfields case b bvshies case braches case barker and treswells case bilford and deddingtons case bonefant and sir richard grenfields case brayes case ib. barber and topseils case bare and mounslowes case braggs case buckhursts case burton and edmunds case blagrave and woods case burton and harvyes case birryes case basset and bassets case barker and finches case bridges case bristow and bristows case boswells case berryes case bury and taylors case browns case bond and greens case bagnall and plots case bradley and jones case brookers case baldwyne and girryes case buggs case blithman and martins case bagnall and harvies case blanfords case brooke and gregories case bisse and tyters case barnwell and palsies case bret and cumberlands case bishop and turnors case blackston and heaps case brown and pells case bronkers case bridges and mills case butlers case bowen and jones case bullen and shoters case bridges and nichols case brown and greens case bendloes and hollydayes case busher and murryes case baspool and longs case bellamy and balthorps case brookers case buckleys case bowden and jones case baker and blackmoors case bailiffs of yarmouth and cowper , baxter and the king beles case blands case brownloes case barker and taylors case butcher and richmonds case barrel and vvheelers case c carter and crofts case cropps case cotsill and hastings case countess of darbies case sir jarvis cliftons case costard and vvickfields case culpepers case conyers case crosse and casons case candict and plomers case chalk and peters case cullingworth● case claypoole & vvhestons case colgat and blythes case ibid. carles case coxe and grayes case cook and fishers case cottons case cookes case charkes case chawner and bowes case cunden and symmons case clay and barnets case cowper and andrews case colt and gilberts case cross and stanhops case cartwrights case crooke and averins case claydon and sir jerome horseys case cloathworkers of ipswiches case cowley and legats case clarkes case d dike and dunstons case dighton and clarkes case denny and turnors case duke and smiths case doylyes case dethick and stokes case dean of vvinsors case dockwray and beales case dudleys case davers case dean of carliles case dayes case dcane and steels case done and knots case e edelses case earl of kents case eglinton and aunsels case sir ralph egertons case edwards and dentons case evesque de york and sedgwicks case evesque de chichester and strodwicks case evesque de salisburies case east and hardings case erish and iues case euers and owens case earl of pembrook and bostocks case eveley and estons case edwards case edwyn and wottons case f fvtter and bosomes case fullers case fraunces and powels case fortescue and cookes case fleetwood and gotts case fial and variars case foxe and medcalfs case froswel and welshes case franklins case fines case favels case farthing and duppers case fleetwoods case fish and wisemans case fryer and dewes case fisher and warners case floyd and cannons case g gomersal and gomersals case giles case green and harris case giles and newmans case gage and peacocks case grissel and sir christopher hodsdayes case grivel and stapletons case goodman and goors case greenway and barkers case garven and pyms case gage and smiths case gippes case grubs case greenway and barkers case l● gerards case godfrey and dixons case grayes case garrawayes case gorge and sir robert lanes case godbolts case glede and wallis case gunter and gunters case green and moodies case god and winches case guyn and guyns case h harwood and highams case herolds case hobbies case hollinshead and kings case hoody and winscombs case hardings case haltons case harlow and woods case heydon and smiths case hughes and keens case hardings case herrenden and taylors case hutchinsons case hatch and capels case hughes case hill and grubhams case sir christopher heydons case hurlston and woodroofs case hill and wades case hobbies case hewet and byes case hawksworth & davies case haddon & arrowsmiths case hardings case holmes and wingraves case heninghams case hoskins case ● hern and webbs case hunts case harvy and reignolds case hill and farlies case hill and wades case huet and overies case hemsers case hye and dr. wells case humfries & studfields case hawkford and russels case i joyces case johnsons case james and ratcliffs case jennour and alexanders case ireland and barkers case jurks and cavendishes case jugin and p●ynes case jermyn and coopers case jones and ballards case k kitleys case kingston & hulls case kerchers case kirby and walters case killigrew and harpers case knollys and dobbins case kite and smiths case kellawayes case knights case l lvddingdon & amners case lovell and gulstons case leeds and cromptons case knightleys case lewknor and fords case leonard and stephens case langley and colsons case lee and swons case lee and lees case leighton and greens case lee and colshills case laistons case lamberts case lynsey and ashtons case lambert and slingbyes case londons case ludlow and stacies case loxe case lee and grissels case leonards case lone and hills case litfield and melhers case langley and stotes case lancaster and kigleys case lovegrave and brewens case m mountjoyes case macrowes case marsh and palfords case megods case miller and gores case mayes case mannocks case me●r and ridouts case marriots case morris case mounteagle and pemeddocks case meades case miller and reignolds case manwoods case maior of yorks case mildmays case morgans case morris and clarks case mellon and herns case mills case marshes case manns case mutle and does case mole and carters case monk and butchers case moor and hawkins case n norris and salisburies case newton and richards case newmans case newman and babbingtons case norton and lysters case norton and symms case o osborne and trittels case occoulds case owen alias collins case owfield and sheirts case ognels case offlies case p poles case prideaux case plymptons case proctors case pinders case peto and chitties case perepoints case piggot and goddens case pitts and wardels case prrrot and kebles case porters case paynes case piggot and pigots case prat and lord nor●hs case paginton and huets case plotts case pollyes case sir iohn parkingtons case pritchard & williams case philpot and fielders case pye and bonners case peters case pits and horkley's case proctor and cliffords case payn and colleges case parks case palmers case perpoynt & thimblebys case pages case plats case l. pagets case q quodds case r roots case rushwels case royley and dormes case read and hewes case rosse● and walshes cass reorsbies and cuffs case roe and gloves case roberts and hills case randal and harveys case royden and moulstons case roper and roydons case roy and hills case s skipwiths case savel and cordels case sydenham & worlingtons case savacres case stargies case smith and smiths case shotbolts case stransam and colborns case strangden and barcels case sayland and ridlers case skipwith and sheffields case stowels case sir john spencer and poyntz case stebbings case stones case sancford and havels case sprat and nicholsons case seymors case stowhridge & archers case smiths case sherloes case sheriff and bridges case simpsons case smith and staffords case slyes case spicer and spicers case stewry and stewryes case l. sheffield & ratcliffs case sadlers case snell and bennets case shooter and emets case stone and roberts case sely and flayles case seignior and wolmers case stanton and barneys case sherrington & worsleys case , suttons case symmes case samson and gatefields case scots case sommers case , shortridge and hills cases shirtford and berrowes case syms and smiths case simpsons case shackbolts spurlings case t. throgmorton and terringhams case taylor and ribera's case taylor and james case traherns case totnam and hoskins case , taylor and askies case , tollyn and taylors case tanfield and hirons case treventries case tucker and carrs case taylor and tomlyns case tennants case tompsons case u. vicar of pancras case vernon and grays case vaughans case veseys case vrry and bowyers case vinior and viniors case w. vvebb & potters case windsmore & hulberts case wiseman and wallmyers case , wood and ashes case warrens case widdal & sir john ashtons , case winkefields case warners case whitlock and hartwells case , wilson and wormels case woolseys case wekers case wright and wrights case wetherell and greens case wedlock and hardings case , wheelers case wormleighton and hunters case , whorewoods case , white and moores case , wrotesley & candishes case winscomb and dunches case webb and tucks case waite and inhabitants of stokes case webb and paternosters case williams and gibbs case white and edwards case wiseman and denhams case waterer & montagues case , wheeler & appletons case , waterman and cropps case whittie and westons case vvillis case vvilliams and floyds case vvaldrons case y. yarram and bradshawes case , yate and alexanders case young and englesfields case , z. zouch and bramports case , zouch and mitchels case zouch and moores case mich. . eliz. in the kings bench. . this case was moved to the court. if an abby hath a parsonage appropriate in d. which is discharged of payment of tithes , and afterward the abbot purchaseth part of the lands in the same town and parish where the parsonage is : that this land so purchased is discharged of tithes in the hands of the abbot ; for the tithes were suspended , during the possession of the abbot , in his own hands . but after that , the abby was surrendred into the hands of the king , anno . h. . and afterwards the same possessions &c. were given to king h. . by the statute of . h. . cap. . as they were in the hands of the abbot . the question was , whether the land so purchased by the abbot before the surrender , were discharged of payment of tithes by the statute , or not . and the opinion of mr. plowden was , that they were not discharged of tithes by the statute : for that no lands are discharged by the statute , but such lands as were lawfully discharged in right , by composition , or other lawfull thing . and the lands in this case were not discharged in right , but suspended during the possession of the abbot , in his own hands . and so hee said it is , when the land is purchased by one , and the parsonage by another , the right of tithes is revived , and the lands charged as before the purchase of the abbot . and so , he said , it had been adjudged . pasc . . eliz. in the common pleas. . a man makes a lease for life , and afterwards makes a lease unto another for years , to begin after the death of tenant for life ; the lessee for yeers dieth intestate ; the ordinary commits administration ; the administrators and the tenant for life joyn in the purchase of the fee-simple : two questions were moved ; the first was , whether the fee were executed in the tenant for life for any part ? . whether the term were gone in part , or in all ? and the opinion of the justices was , that the fee was executed for a moitie . manwood . if the land be to one for life , the remainder for yeers , the remainder to the first tenant for life in fee , there the fee is executed ; so as if he lose by default , he shall have a writ of right , and not quod ei deforceat ; for the term shall be no impediment that the fee shall not be executed : as a man may make a lease to begin after his death , it is good , and the lessor hath fee in possession , and his wife shall be endowed after the lease . and i conceive , in the principall case , that the term shall not be extinct ; for that it is not a term , but interesse termini , which cannot be granted nor surrendred : mounson . if he had had the term in his own right , then by the purchase of the fee , the term should be extinct . but here he hath it in the right of another as administrator . dyer . if an executor hath a term , and purchaseth the fee , the term is determined : so , if a woman hath a term , and takes an husband who purchaseth the fee , the term is extinct . manwood . the law may be so in such case , because the husband hath done an act which destroyes the term , viz. the purchase . but if the woman had entermarried with him in the reversion , there the term should not be extinguished ; for the husband hath not done any act to destroy the term ; but the marriage is the act of law. dyer . that difference hath some colour . but i conceive , in the first case , that they are tenants in common of the fee. manwood . the case is a good point in law . but i conceive the opinion of manwood was , that if a lease for yeares were to begin after the death , surrender , forfeiture or determination of the first lease for yeares , that it shall not begin in that part , for then perhaps the term in that part shall be ended , before the other should begin . pasc . . eliz. in the common pleas. . a man seised of copyhold land descendable to the youngest son by custome ; and of other lands descendable to the eldest son by the common law ; leaseth both for yeers : the lessee covenanteth , that if the lessor , his wife and his heirs will have back the land , that then upon a yeers warning given by the lessor , his wife or his heirs , that the lease shall be void . the lessor dieth ; the reversion of the customary land descends to the younger son , and the other to the eldest , who granteth it to the younger ; and he gives a yeers warning according to the covenant . fenner . the interest of the term is not determined , because a speciall heir , as the youngest son is , is not comprehended under the word [ heir ; ] but the heir at common law , is the person who is to give the warning to avoid the estate by the meaning of the covenant . but manwood and mounson , justices , were cleer of opinion , that the interest of the term for a moity is avoyded ; for the condition , although it be an entire thing , by the descent , which is the act of law , is divided and apportioned ; and the warning of any of them shall defeat the estate for a moity , because to him the moity of the condition doth belong : but for the other moity , he shall not take advantage by the warning , because that the warning is by the words of the condition appointed to be done by the lessor , his wife , or his heirs : and in that clause of the deed the assignee is not contained . and they agreed , that if a feoffment of lands in borough-english be made upon condition , that the heir at common law shall take advantage of it . and manwood said , that hee would put another question , whether the younger son should enter upon him or not ? but all actions in right of the land , the younger son should have ; as a writ of error to reverse a judgment , attaint , and the like . quod nota . pasc . . eliz. in the common pleas. it was holden by meade and windham , justices of the common pleas , that a parsonage may be a mannor : as , if before the statute of quia emptores terrarum , the parson , with the patron and ordinary , grant parcel of the glebe to divers persons , to hold of the parson by divers services , the same makes the parsonage a manor . also they held , that a rent-charge by prescription , might be parcel of a manor , and shall passe without the words cum pertinentiis . as , if two coparceners be of a manor and other lands , and they make partition , by which the eldest sister hath the manor , and the other hath the other lands ; and she who hath the lands grants a rent-charge to her sister who hath the manor , for equality of partition . anderson and fenner srjeants , were against it . hill. eliz. in the common pleas. . this case was moved by serjeant periam ; that if a parson hath common appendant to his parsonage , out of the lands of an abby , and afterwards the abbot hath the parsonage appropriated to him and his successors : whether the common be extinct ? dyer , that it is : because he hath as high an estate in the common as he hath in the land. as in the case of h. . . where it is holden , that if a prior hath an annuity out of a parsonage , and afterwards purchaseth the advowson , and then obtains an appropriation thereof , that the annuity is extinct . but windham and meade justices , conceived , that the abbot hath not as perdurable estate in the one as in the other ; for the parsonage may be disappropriated , and then the parson shall have the common again . as if a man hath a seignorie in fee , and afterwards lands descend to him on the part of the mother ; in that case the seignory is not extinguished , but suspended : for if the lord to whom the land descends dies without issue , the seignorie shall go to the heir on the part of the father , and the tenancy to the heir on the part of the mother ; and yet the father had as high an estate in the tenancy as in the seignory . and in e. . . where an assize of nusance was brought for straightning of a way which the plaintif ought to have to his mill : the defendant did alledg unity of possession of the land , and of the mill in w. and demanded judgment , if &c. the plaintif said , that after that , w. had two daughters , and died seised ; and the mill was allotted to one of them in partition , and the land to the other , and the way was reserved to her who had the mill : and the assize was awarded . and so by the partition the way was revived , and appendant as it was before : and yet w. the father had as high an estate in the land , as he had in the way . hill. eliz. in the common pleas. . a man makes a feoffment in fee of a manor , to the use of himself and his wife , and his heirs : in which manor there are underwoods usually to be cut every one and twenty yeers ; and afterward the husband suffers the wood to grow five and twenty yeers , and afterwards hee dieth . the question was , whether the wife , being tenant for life , might cut that underwood ? and it was moved , what shall be said seasonable underwood , that a termor or tenant for life might cut ? dyer chief justice , and all the other justices held , that a termor or tenant for life , might cut all underwood which had been usually cut within twenty yeers . in . h. . . issue was taken , if they were of the age of twenty yeers , or no. but in the wood-countries they may fell seasonable wood which is called sylva caedua , at six and twenty , eight and twenty , thirty years , by the custome of the country . and so the usage makes the law in severall countries . and so it is holden in the books of . h. . and . e. . but they agreed , that the cutting of oakes of the age of eight yeers , or ten years , is waste . but by meade justice , the cutting of hornbeams , hasels , willows , or sallows of the age of forty yeares , is no waste , because at no time they will be timber . another question which was moved was , that at the time of the feoffment it was seasonable wood , and but of the growth of fourteen or fifteen yeers : if this suffering of the husband of it to grow to years , during the coverture , should bind the wife , so as she cannot cut the woods . gaudy serjeant said , that it should not bind the wife ; for if a warranty descend upon a feme covert , it shall not bind her . so if a man seized of land in the right of his wife be disseised , and a descent be cast during the coverture , it shall not bind the wife , but that she may enter after the death of the husband : but by dyer chief justice , and all the other justices , this permission of the husband shall bind the wife , notwithstanding the coverture ; for that the time is limited by the law , which cannot be altered , if it be not the custome of the country . as in the case of . e. . where a man makes a lease for years , and grants that the lessee shall have as great commoditie of the land as hee might have . notwithstanding these words , he cannot dig the land for a mine of cole or stone ; because that the law forbids him to dig the land . so in the principall case , the wife cannot fell the wood , notwithstanding that at the time of her estate she might ; and afterwards by the permission of the husband , during the coverture ; the time is incurred , so as she cannot fell it , because the law doth appoint a time , which if it be not felled before such time , that it shall not be felled by a termor , or a tenant for life , but it shall be waste . hill. . eliz. in the common pleas. . a man makes a lease of a garden , containing three roodes of land , and the lessee is ousted , and he brings an ejectione firme , and declares that he was ejected of three roods of land ; rodes serjeant , moved , that by this declaration it shall be intended , that he was ejected of the garden , of which the lease was made , and so the ejectione firme would lie . and it was holden by the lord chief justice dyer , that a garden is a thing which ought to be demanded by the same name in all precipes ; as the register and fitz. n. brevium is . and this action is greater then an action of trespasse , because by recovery in this action , he shall be put into possession . but meade and windham justices , contrary : and they agreed , that in all reall actions , a garden shall be demanded by the name gardinum ; otherwise not . but this action of ejectione firme is in the nature of trespasse ; and it is in the election of the party to declare , as here he doth ; or for to declare of the ejectment of a garden ; for a garden may be used at one time for a garden ; and at another time be ploughed and sowed with corn. but they conceived that the better order of pleading had been , if he had declared that he was ejected of a garden containing three roodes of land , as in the lease it is specified . hill. . eliz. in the common pleas. . sergeant fenner moved this case . that land is given to the wife in tail for her joynture , according to the statute of . h. . the husband dieth , the wife accepts a fine , sur conusans de droit come ceo , &c. of a stranger : and by the same fine grants and renders the land to him for an hundred years ; whether this acceptance of a fine and render by the wife were a forfeiture of her estate , so as he in the reversion or remainder might enter by the statute . mead and dyer justices ; it is a forfeiture , and mead resembled it to the case in h. . . where it is holden , that if tenant for life do accept of a fine sur conusans de droit come ceo , &c. that it is a forfeiture , and the lessor may enter . but fenner asked their opinions , what they thought of the principall case , but haesitavernut , because they said it was a dangerous case , and is done to defraud the statute of . h. . pasch . . eliz. in the common pleas. . a man made a feoffment in fee to two , to the use of himself and his wife , for the term of their lives , without impeachment of waste during the life of the husband ; the remainder after their decease to the use of i. his son , for the term of his life . and further by the same deed , vult & concedit , that after their three lives , viz. of the husband , wife , and son , that i. s. and i. d. two other feoffees , shall be seized of the same land , to them , and their heirs , to the use of the right heirs of the body of the son begotten . it was moved , that by this deed , the two later feoffees should be seized to the use of the right heirs of the body of the son begotten , after the death of the husband , wife , and the son. but it was holden by all the justices , that the second feoffees had not the fee , because by the first part of the deed , the fee-simple was given to the first feoffees ; and one fee-simple cannot depend upon another fee-simple : notwithstanding , that after the determination of the former uses for life , the fee-simple should be vested again in the heires of the feoffer ; and that the words , that the second feoffees should be seized , should be void . but dyer chief justice , and the other justices , were against that , because there wanted apt words to raise the later use : as if a man bargain , and sell his reversion of tenant for life , by words of bargain and sale only , and the deed is not enrolled within the six months , but afterwards the tenant for life doth attorne , yet notwithstanding that , the reversion shall not passe , because [ bargain and sell ] are not apt words to make a grant : and that case was so adjudged in the common pleas as the lord dyer said . so in the principall case , and therefore the later use was utterly void , and shall not be raised by intendment . but otherwise it had been , if it had been by devise . pasch . . eliz. in the common pleas. . it was holden by all the justices of the common pleas , that the queen might be put out of her possession of an advowson by two usurpations ; and she shall be put to her writ of right of advowson , as a common person shall be , because it is a transitory thing ; and that the grant of that advowson made by the queen after the two usurpations , should be void ; and that was so adjudged upon a demurrer in the point . and so it is holden in e. . . b. psch . . eliz. in the common pleas. . an indenture of covenant was made betwixt i. s. and i. d. in which i. s. did covenant to enfeoffe i. d. of his manor of d. in consideration of which , i. d. by the same indenture , did covenant with the said i. s. to pay him li. the question is , if i. s. will not make the feoffment , whether i. d. be bound to pay the money ? it was holden by the lord dyer chief justice , and justice mead , that he is not , because the money is covenanted to be paid executory to have the feoffment made ; and therefore if he will not make the feoffment , he shall not have the money . as if i covenant with one , that i will marry his daughter ; and he covenants with me , that for the same cause , he will make an estate to me and his daughter , and to the heirs of our two bodies begotten , of his manor of d ; he shall not make it untill we are married . but if i covenant with a man , that i will marry his daughter ; and he covenants with me , to make an estate to me and his daughter ; if i marry another woman , or if the daughter marryeth another man , yet i shall have an action of covenant to compell him to make the estate , because in this later case , the covenant was made for another cause . and this difference was so taken by the whole court , h. . . so if a. grant to b. all the ancient pale , and for that , b. grants , that he will make a new pale ; it is holden in . e. . . by catesby , and affirmed by littleton , that if b. cannot have the ancient pale , that he shall be excused from making the new pale . but if two things are given by two persons , one for the other , there if one of them detain the one , the other cannot detain the other , as is e. . . and e. . . it is holden , that if one grant tithes in fee , by one deed , and by the same deed , for the same grant , the grantee grant to the same person an annuity of li ; that if the grantor of the tithes , enter into the tithes , yet the grantee cannot detaine the annuity , because the grant of the tithes is executed in him , and he may have an action for them , if the other enter upon them . but in the principall case ; the covenant was but executory for the other , and then if one be not performed , the other shall never be performed : windham and periam justices , conceived the contrary : and therefore the case was adjourned , and a demurrer in law upon it . pasch . eliz. in the common pleas. . tenant in taile , the remainder in fee ; the tenant in taile makes a lease for life according to the statute of h. . and afterwards dieth without issue : and before any entrie , he in the remainder grants his remainder by fine : whether the conusee of the fine may enter upon the tenant for life , and avoid his lease , was the question . fenner serjeant , hee cannot : because when a free-hold is given by livery , it cannot be defeated without entrie , as , if a parson make a lease for life , rendring rent , and dieth , and his successor accept the rent , the lease is affirmed , as it is holden in . e. . and . e. . the case was , that a man made a lease for life , the remainder in fee ; tenant for life granted over his estate : and then a formedon was brought against the grantee , and then the first tenant for life died : and by all the justices ( except littleton , and divers serjeants ) the writ shall not abate , if he in the remainder hath not entred . so in the principall case , when he had made a lease for life , and afterwards died without issue , living the tenant for life , ; his estate is not defeated before entrie of him in the remainder : and then , when before entrie , he in the remainder grants his remainder , the grantee shall have it but as a remainder ; for so is his grant : and so the estate of tenant for life which was but voidable , is made good : and so was it holden by windham and periam , justices : but meade , and dyer chief justice did conceive , that by the death of tenant in taile without issue , his lease made to him for life , was void , and not voidable ; because by the death of tenant in tail , his estate , out of which the estate of the tenant for life was derived , is determined ; and therefore the estate for life is determined also ; et cessante causâ cessat effectus . and meade compared it to the case of . h. . , where it was holden , that if a man do make a lease for life upon condition , that if he pay unto the lessee ten pounds at such a day , that his estate shall cease . now by the performance of the condition , the estate is determined without entrie . mich. . eliz. in the common pleas. . poles case . thomas pole one of the clerks of the chancery , married a woman who was executrix to her husband : and in an action of debt brought against them in the common pleas , the said pole brought a writ of priviledg , to have removed the said action into the chancery : and by all the justices the writ was disallowed , and the defendants ruled to answer there , because the wife was joyned in the action with the husband ; and she could not have the priviledg , and therefore not the husband . and so it is adjudged by the whole court , . h. . . and . h. . . but see . h. . . where the case was , that a man brought an action in the common pleas against husband , and at the pluries returned , he and his wife were arrested into an inferiour court veniendo to westminster ; and because the husband hath priviledg , therefore his wife shall be in the same condition . but dyer said , that the reason there was , because the wife came in aid of her husband to follow his suit : and therefore it is not like the principall case at the bar. mich. . eliz. in the common pleas. . in debt upon a bond of forty pound , for the payment of twenty pound at a day and place certain : the defendant pleaded , that he had paid the said twenty pound , according to the condition , upon which they are at issue ; and at the nisi prius , the defendant gave in evidence , that he had paid the money to the plaintiff before the day , and that the plaintiff had accepted of it ; all which matter the jury found specially , and referred the same to the justices : and it was said by the whole court , that that payment before the day was a sufficient discharge of the bond ; but because the defendant had not pleaded the same specially , but generally , that he had paid the money according to the condition ; the opinion was , that they must find against the desendant , for that the speciall matter would not prove the issue : and the lord dyer chief justice said , that the plaintiffs councel might have demurred upon the evidence . mich. . eliz. in the common pleas. an action was brought upon the statute of & phil. & mar. and the statute is , that no distresse shall be driven out of the rape , hundred , wapentake or laith , where such distresse is , or shall be taken , except it be to the pound overt within the said county , not exceeding three miles distant from the place where the distresse was taken ; and the plaintiff declared of a distresse taken in a hundred , in such a county , and that he drove it six miles out of the county ; and because a hundred may be in diverse counties , and the statute is , that the driving ought not be more then miles out of the hundred ; and that it might be that the driving was six miles from the place where the distresse was taken in another county , and yet not three miles from the hundred where the taking was , for that cause it was not adjudged against the party ; and that was after verdict , in arrest of judgment . pasch . . eliz. in the common pleas. . a feme sole seized of a manor to which there were copyholds ; one of the copyholders did entermarry with the woman , and afterwards he and his wife did suffer a recovery of the manor , unto the use of themselves for their lives , and afterwards to the use of the heires of the wife . the question was , whether the copyhold were extinct ; and anderson the chief justice said , that if a copyholder will joyn with his lord in a feoffment of the mannor , that thereby the copy-hold is extinct . the same law is , if a copyholder do accept a lease for years of his copyhold : which was agreed by the whole court. pasc . . eliz. in the common pleas. . i. n. doth covenant with i. s. by indenture , to pay him forty pounds yearly for one and twenty years , and afterwards i. s. doth release to i. n. all actions . the question was , whether the whole covenant were discharged . and it was holden by all the justices , that only the arrerages were discharged , because the covenant is executory , yearly to be executed during the term of one and twenty years , for he may have several actions of covenant for every time that it is behind ; and if it be behind the second year , he may have a new action for that , and so of every year during the term , several actions : for nothing shall be discharged by the release of all actions , but that which was in action , or a dutie at the time of the release made , as in . e. . and l. . e. . . in debt for arrerages of an annuity ; the defendant pleaded a release of all actions , which bore date before any arrerages were behind ; and the opinion of the justices was there , that it was no plea , and so it was adjudged ; for it is not a thing in action , nor a duty , untill the day of paiment comes . and it is there holden by arden , that if a man make a lease for two years rendring rent , and that the tenant shall forfeit twenty shillings nomine poenae ▪ for not paiment at the day , there a release of all actions personals made to the tenant before the penalty be forfeited , is no bar ; for it is neither duty , nor thing in action before the failer of paiment . and in . e. . . a man did release to his tenant for term of life all his right for the term of the life of the same tenant for life ; and that he nor his heirs might any right demand , nor challenge , or claim for the life of the tenant for life , in the said land ; and afterwards he died , and the tenant committed waste , and the heir brought an action of waste , and the tenant pleaded the same release , and it was holden no plea , for nothing was extinct by the same release but that which was in action at the time of the release made , and that the waste was not . rhodes serjant put a case , which he vouched to be adjudged . . eliz. which was , that if a man covenant with i. s. that if he will marry his daughter , that then he will pay him twenty pounds ; if a release were made by i. s. before the marriage , the same will not determine the twenty pounds if he marry her afterwards , because it was not a duty before the marriage : so in the principal case , notwithstanding that the covenant was once broken for the non-paiment at the first day ; yet because a several action of covenant lieth for every day that it was arreare , the release shall extinguish but only that which was arreare at the time of the release made : and so note , that a release doth not discharge a covenant which is not broken . pasch . . eliz. in the common pleas. . upon a special verdict in an action of debt ; the case was this : i. s. and i. n. did submit themselves to the award , order , rule and judgemant of a. and b. for all matters , quarrels and debates , and the bond was made to perform the award , order , rule and judgement ment made by them : and they award , order , rule and adjudge , that i. s. shall pay to w. n. who was a stranger , twenty shillings . the first question was , whether the award were good : and it was holden by anderson chief justice , meade and periam justices , that the award was void , because it was out of their submission , for they cannot award a man to do a thing which doth not lye in his power , for in this case w. n. to whom the money is to be paid , is a stranger , and it is in his election , if he will accept of the money or not . and so it is holden in . h. . . and . e. . . but vid. cont . . h. . . then if the award be void , the second question was , if yet the bond to performe it be good or not ; and it was holden by the whole court , that it was void also , against the book of . h. . . because that the condition was to performe that which was against the law ( quaere that case , for it seemes not to be law at this day . ) and it was then holden , that awards concerning acts to be performed by them which have not submitted , are void : and in all cases where each of the parties which submit have not some thing , the award is void . pasch . . eliz. in the kings bench. . in an action upon the case upon a promise , the consideration was ▪ where i. s. had granted a term to i. d. that afterwards upon the request of i. s. i. d. did make to w. an estate for four years , upon which w. brought his action : and after verdict it was moved in stay of judgement , that there was no good consideration , and a difference taken , where the promise was upon the grant ; and where afterwards : if it were before , then the condition was good ; but if it were afterwards , it was not good : and it was adjudged , that the plaintiffe , nihil capiat per billam . pasch . . eliz. in the kings bench. . an action upon the case upon a promise was : the consideration was , that in consideration that the plaintiffe daret di●m solutionis , the defendant super se assumpsit ; and because he doth not say in facto , that he had given day , it was adjudged that no sufficient consideration was alledged : but if the consideration were quod cum indebitatus , &c. the same had been a good consideration without any more ; for that implies a consideration in it self . pasch . . eliz. in the kings bench. . it was said by cooke , that the chancellor , or any judge of any of the courts of record at westminster , may bring a record one to another without a writ of certiorare , because one judge is sufficiently known one to the other , as . h. . . where a certificate was by the chancellor alone ; and to this purpose is . h. . but that other judges of base courts cannot do , nor justices of the peace , as . h. . where the certificate by suitors was held void . pasch . . eliz. in the common pleas. . skipwith's case . it was found upon a speciall verdict in an action of trespass , that the place where , &c. was copy-hold land : and that the custome is , that quaelibet foemina viro cooperta poterit devise lands whereof she is seised in fee , according to the custome of the manor , to her husband , and surrender it in the presence of the reeve and six other persons . and that i. s. was seised of the land , where , &c. and had issue two daughters , and died , and that they married husbands ; and that one of them devised her part to her husband by will in writing , in the presence of the reeve and six other persons : and afterwards at another day shee surrendred to the husband , and he was admitted ; and she died , and her husband continued the possession . and the husband of the other daughter brought an action of trespasse . rodes serjeant , the custome is not good , neither for the surrender , nor for the will , for two causes : one ; for the uncertainty of what estate shee might make a devise , and because it is against reason , that the wife should surrender to the husband . where the custome shall not be good , if it be uncertain , he vouched . e. . fitz. dum fuit infra aetatem . . the tenant saith , that the lands are in dorset , where the custome is , that an enfant may make a grant or feoffment , when he can number twelve pence . and it was holden , that because it is uncertain when he can so do , the custome is not good . . e. . in a ravishment of ward , the defendant pleaded , that the custome is , that when the enfant can measure an ell of cloth , or tell twelve pence , as before , that he should be out of ward : and it is holden no good custom for the cause aforesaid . . h. . . a. there a man prescribed , that the lord of d. had used to have common for him and all his tenants ; and because it is not shewed , what lord ; whether the lord mediate or immediate , it is adjudged no good custome . and as to the surrender , it is against reason , that the wife should give to the husband ; for a wife hath not any will but the will of her husband : for if the husband seised in the right of his wife , make a feoffment in fee , and the wife being upon the land , doth disagree unto it , saying , that shee will never depart with it during her life ; yet the feoffment is good , and shall binde during the life of the husband , as it is holden in . e. . and therefore it is holden in . e. . tit. devise , br. . that a feme covert cannot devise to her husband ; for that should be the act of the husband to convey the land to himself . and in the old natura brevium , in the additions of ex gravi quaerela , it is holden so accordingly . and the case in . e. . differs much from this case : for there a woman seised of lands devisable , took an husband , and had issue ; and devised the lands to the husband for his life , and died , and a writ of waste was brought against him as tenant by the courtesie ; and it was holden that it did lie , and that he is not in by the devise ; for the reason there is , because he was in before by the courtesie : but as i conceive , that case will disprove the surrender ; for in as much as he had it in the right of his wife , he could not take it in his own right . also he took another exception in the principal case , because that the wife was not examined upon the surrender ; but none of the justices spake to that exception : but when the record was viewed , it appeared , that it was so pleaded : further , he said , that the devise was void by the statute of . h. . cap. . where it is said , it is enacted , that wills and testaments made of any lands , tenements , &c. by women coverts , or &c. shall not be taken to be good , or effectual in law. and he said , that this statute doth extend to customary lands ; and as to that all the justices did agree , that it is not within the statute . and as to the statute of limitations , and●rson chief justice said , that if a lease for years , which perhaps will not indure sixty years , shall be taken strong , this shall . anderson moved , that if the lord lease copyhold land by word , whether the lessee might maintain an ejectione firme : and he conceived not ; for in an ejectione firm● , there ought to be a right in fact : and although it be by conclusion , it is not sufficient , for that the jury or judge are not estopped or concluded : and he conceived , that if tenant at will make a lease for years , that it is no good lease betwixt him and the lessor ; but that he may well plead , that he had nothing in the land : meade contrary ; but they both agreed , that the book of . e. . which saith , that if tenant at will make a lease for years , that he shall be a disseisor , is not law. anderson said , that the prescription in the principal case was not good , for it is quod quaelibet foemina viro cooperta poterit , &c. and it ought to be , that feme coverts possunt , and by the custome have used to devise to the husband , and therefore the prescription is not good , that potest ponere retes upon the land of another upon the custome of the sea ; for prescription must be in a thing done : also by him the devise is not good according to the custome , for that is , that she may devise and surrender ; and that ought to be all at one time , and that in the presence of the reeve and six other persons , as well as the surrenderer ; and the words of a custome shall be so far performed as they may be . meade contrary : and that these witnesses shall be referred to the surrender onely , for a devise may be without witnesses . and he said , that sometimes the latter clause shall not refer to all the precedent matter , but unto the latter onely , as . h. . is , where a praecipe was brought of lands in a. b. and c. in insula de ely : the clause ( in insula de ely ) is referred onely to c. and it was said , that if in the principal case the will were good , that then the husbands are tenants in common ; and then the action of trespass is not maintainable . pasch . . eliz. in the common pleas. . this case was moved by serjant gawdy . thomas heigham had an hundred acres of lands , called jacks , usually occupied with a house ; and he leased the house and forty acres , parcel of the said hundred acres , to i. s. for life , and reserved the other to himself , and made his will , by which he doth devise the house and all his lands , called jacks , now in the occupation of i. s. to his wife for life ; and that after her decease , the remainder of that , and all his other lands pertaining to jacks , to r. who was his second son ; whether the wife shall have that of which her husband died seised for her life , or whether the eldest son should have it , and what estate he shall have in it . meade . the wife shall not have it ; for , because that he hath expressed his will that the wife shall have part , it shall not be taken by implication , that she shall have the whole or the other part , for then he would have devised the same to her ; and therefore it hath been adjudged in this court betwixt glover and tracy ; that if lands be devised to one and his heirs males ; and if he die without heirs of his body , that then the land shall remain over , that he had no greater estate then to him and his special heirs , viz. heirs males : and the reason was , because the will took effect by the first words . anderson chief justice ; it was holden in the time of brown , that if lands were devised to one after the death of his wife , that the wife should have for life : but if a man seised of two acres , deviseth one unto his wife ; and that i. s. shall have the other after the death of the wife , she takes nothing in that acre for the cause aforesaid : for the second matter , if the reversion shall pass after the death of the wife to the second son ; we are to consider what shall be said land usually occupied with the other , and that is the land leased with it . but this land is not now leased with it , and therefore it cannot pass . windham . the second son shall have the reversion ; for although it doth not pass by these words , usualy occupied ; ( as anderson held ) yet because the devise cannot take other effect , and it appeareth that his intent was to pass the land , the yonger son shall have it anderson . jacks is the intire name of the house and lands ; and that word when it hath reference unto an intire thing called jacks , and is known by the name of jacks , shall pass to the second son ; for words are as we shall construe them : and therefore , if a man hath land called mannor of dale , and he deviseth his mannor of dale to one , the land shall pass , although it be not a mannor : and if i be known by the name of edward williamson ; where my name is edward anderson , and lands are given unto me by the name of edward williamson ; the same is a good name of purchase . and the opinion of the court was , that the reversion of the land should pass to the second son . pasc . . eliz. in the common pleas. . the lord mountjoy , and the earle of huntington's case . note , by anderson chief justice , and periam justice . if a man seised of any entrie franchises , as to have goods of felons within such a hundred , or mannor ; or goods of outlaws , waifes , strares , &c. which are causual ; there are not inheritances deviseable by the statute of . h. . for they are not of any yearly value , and peradventure no profit shall be to the lord for three or four years , or perhaps for a longer time . and such a thing which is deviseable ought to be of annual value , as appeareth by the words of the statute . and also they agreed , that the said franchises could not be divided ; and therefore if they descend to two coparceners , no partition can be made of them . and the words of the statute of . h. . are , that it shall be lawful , &c. to divise two parts , &c. and then a thing which canot be divided , is not diviseable . and they said , that if a man had three manors , and in each of the three such liberties , and every manor is of equal value , that yet he cannot devise one mannor and the liberties which he hath to it , causá , quâ supra : but by them an advowson is deviseable , because it may be of annual value . but the lord chancellor , smiling , said , that the case of the three manors may be doubted . and there also it was agreed by the said two justices , upon conference had with the other justices , that where the lord mountjoy by deed , indented and inrolled , did bargaine and sell the manor of ●amford to brown in fee ; and in the indenture this clause is contained , provided alwayes , and the said brown covenants , and grants to , and with the lord mountjoy , his heirs and assigns , that the lord mountjoy his heirs and assigns , may digg for ore within the land in camford , which was a great waste ; and also to digg turffe there to make allome and coperess , without any contradiction of the said brown , his heirs and assigns . they agreed , that the lord mountjoy could not devide the said interest , viz. to grant to one to digg within a parcel of the said waste . and they also agreed , that notwithstanding that grant , that brown , his heirs and assigns , owners of the soile , might digg there also , like to the case of common sans number . the case went further , that the lord mountjoy had devised this interest to one laicott for one and twenty years , and that laicott assigned the same over to two other men : and whether this assignment were good or not , was the question ; forasmuch that if the assignement might be good to them , it might be to twenty ; and that might be a surcharge to the tenant of the soile . and as to that the justices did agree , that the assignement was good ; but that the two assignees could not work severally , but together with one stock , or such workmen as belonged to them both . and cook , who reported the opinions of the justices , was of counsel with the lord mountjoy . and note , in that case it was said , that proviso being coupled with other words of covenant and grant , doth not create a condition ; but shall be of the same nature as the other words with which it is coupled . pasch . . eliz. in the common pleas. . webbe and potter's case . in an ejectione firme the case was this : john harris gave land in frankmarriage to one white : and the words of the deed were , dedi & concessi i. w. in liberum maritagium joannae filiae suae , habendum eidem j. w. & haeredibus suis in perpetuum , tenendum de capitalibus dominis f●odi , &c. with warranty to the husband and his heirs : periam justice , although the usuall words of gift in frankmarriage are not observed ; yet the frankmarriage shall not be destroyed ( for the usuall words are , in liberum maritagium cum joanna filia mea ; in the ablative case ) : and it was holden by all the justices , that notwithstanding that , the frankmarriage was good . also a gift in frankmarriage after the espousals , is good , as it was holden by all the justices . and see fitz. tit. taile . e. . and . h. . dower . and he said , that a gift in frankmarriage before the stat. of donis , &c. was a feesimple , but now it is but a special tail : and if it should not be in law a gift in frankmarriage , then the husband and wife have an estate but for their lives ; for they cannot have an estate taile , for that there are not words of limitation of such estate in the gift . and hee cited . e. . and . e. . . to prove his opinion : and hee much relyed upon the intent of the donor , which ought to be observed in construction of such gifts according to the statute . and because the habendum is repugnant to the premisses , and would destroy the frank-marriage , it is void , and the premisses shall stand good : and to prove that , he cited . e. . . e. . . e. . tit. taile , . . h. . by hill. and he took this difference ; where a remainder is limited upon a gift in frankmarriage to a stranger , and where it is limited to one of the donees ; for in the first case , the remainder is good for the benefit of the stranger ; but in the second case it is void . and he said , that if a rent be reserved upon such a gift , that it should be void during the four degrees , but afterwards the reservation should be good . and if the donor grant the reversion over , and the donee in frank-marriage attourn , now he shall pay rent to the grantee ; for by littleton , he hath lost the priviledg of frankmarriage , viz. the aquitall ; and no privitie is betwixt the grantee and the donees . . ass . . & . h. . that it is not any taile , if it be not frankmarriage , windham justice : although it be no estate in frankmarriage , yet is it an estate taile : and he cited . e. . although there want the word heirs . also if a man give lands to another & semini suo , it is good ; . e. : statham , taile . if it be not frankmarriage , yet it is a good estate in taile . . ass land was given to husband and wife in frank-marriage , infra annos nubiles , and afterwards they are divorced ; the wife hath an estate in taile . meade justice did agree with windham , and said , that although there be not any tenure , nor any aquitall , yet it may be a good frankmarriage ; as if a rent , common , or reversion be given in frankmarriage , it is good ; and yet there is not any tenure nor aquitall . dyer chief justice conceived , that it is not frankmarriage ; because that the usuall words in such gifts are not observed : for he said , that the gift ought to be in liberum maritagium , and not joannae filiae suae ; for that is not the usuall form of the words : and he said , that if the word [ liberum ] be omitted , that it is not frankmarriage ; for that he said , is as it were a maxime : and therefore the usuall words ought to be observed . and by the same reason such a gift cannot be with a man , but ought to be with a woman : also such a gift ought to be with one of the blood of the donor , who by possibilitie might be his heir . also there ought to be a tenure betwixt the donor and donee , and also an aquitall . and if these grounds and ceremonies be not observed , it is not frankmarriage . also if it once take effect as a frankmarriage , and afterwards the donor granteth the reversion over , or if the reversion doth descend to the donees , yet it shall not be utterly destroyed , but shall remaine as an estate taile , and not as an estate for life ; because it once took effect in the donees and their issues as a frankmarriage , . e. . taile . if a man give lands in frankmarriage , the remainder to the donees and the heirs of their bodies ; yet it is a good frankmarriage . and if a man give lands in frankmarriage , the remainder to another in taile , it shall not destroy the frankmarriage , because that the donor hath the reversion in fee in himself , and the donees shall hold of him , and not of him in the remainder in taile ; but if the remainder had been limited to another in fee simple , then it had been otherwise . also if the donor grant the services of the donees in frankmarriage , reserving the reversion to himself , it is no good grant , although that the donees attourne ; for that the services are incident to the reversion : but if he grant the reversion , then they do passe . and he concluded , that the husband had the whole , and that the wife had nothing : for she was no purchaser of the premisses , because that the gift did not take effect as a gift in frankmariage : and he said , that he doth not construe it so by the intent of the gift ; for here is an expresse limitation of the fee to the husband and his heirs , which shall not be contradicted by any intendment ; for an intendment ought to give way to an expresse limitation , as a consideration implyed ought to give place to a consideration expressed . and afterwards this yeer it was adjudged , that it was not a frankmarriage , nor a gift in taile , but that it was a fee simple . and the justices said , that although the old books are , that where it takes not effect as a frankmarriage , that yet it shall take effect as an estate taile , those books are against law. but they agreed , that where once the gift doth take effect as a frankmarriage , that by matter ex post facto , it might be turned to an estate in taile . pasch . . eliz. in the common pleas. . meade and windham ( the other justices being absent ) were of opinion , that a copyholder in fee , who by the custome might surrender in fee , might make a surrender in taile , without any speciall custome so to doe : and he who may prescribe to make a feoffment in fee , might make a lease for life , and it should be good , quia omne majus continet in se minus . pasch . eliz. in communi banco . in a writ of dower , the defendant made her demand de tertia parte liberae faldae : and serjeant gaudy moved if it were good , without setting in certain for what cattell : and it was held not good ; for if it be not of a certain number , she shall not be thereof endowed , no more then of a common uncertain . and if she do demand common which is certain , yet she shall not be endowed , if she do not shew the certaintie of it . windham said , that if the common be uncertain , that the woman shall be allowed for it : but meade said , he doth not know how the allowance shall be made . pasch . eliz. in the exchequer chamber . it was holden in the exchequer chamber , before the treasurer and the barons , in the case of one pelham , that whereas the queen had granted to him by letters patents , that he should not be bailiff , constable , nor other officer or minister , licet eligatur : that if the queen make him sheriff of a county , that he shall not be discharged by that patent , for that such offices do not extend to royal offices : as a grant of amerciaments shall not extend to amerciaments royal. and also the making of a sheriff is not by election , but onely by denomination of the queen . so that if he have not these words besides ( licet eligatur per nos ) he shall be sheriff . and that they said was also the opinion of bromley lord chancellour . mich. eliz. in the king 's bench. it was holden by the court , that if a man binde himself to perform the last will of i. s. and he is made executor , that hee is bounden to pay legacies without any demands . vide . e. . . a. . e. . . a. . e. . . yet it was said , that pasch . . eliz. they put a difference , where a man is bound to perform the last will , and when to perform the legacies ; for in the later case the law is ut suprà . hill. eliz. in the common pleas. . if i be bound , that my lessee shall take , reap , and carry his corn peaceably without interruption : and afterward in harvest , when he is reaping , i come upon the land , and say to him , that he shall not reap any corn there ; but otherwise i do not disturb him : the opinion of all the justices was , that for these words spoken by me upon the land , that i have forfeited my bond. and yet it was urged by serjeant puckering , that i was bound to suffer him to do three things , scil . to take , to reap , and to carry , and all these things he hath done . see the case . e. . . where the saying to a tenant by one coparcener , that he ought not to pay any thing to the other , was a disseisin . pasch . . eliz. in the common pleas. a man was bound in a recognizance for his good behaviour : and it was shewed , that he was arrested for suspicion of felony by a constable , and that he escaped from him ; to which he pleaded , not guilty : exception was taken , because it was not shewed that a felony was committed , which might cause suspicion , for that is traversable : and per curiam it need not ; for although no such felony was committed , and although the arrest were tortious , yet the recognizor had forfeited his recognizance , by making an escape , which is a misbehaviour . pasch . eliz. in the common pleas. bushey's case . paul bushey vicar of pancras leased his vicarage to doctor clark , the glebe land , and the church , and all things to the same belonging ( excepting the housing ) reserving twenty pound rent yeerly , at lammas , and sancti petri advincula , by equall portions : and if the rent be behinde by the space of a month , that then it should be lawfull for the vicar to distrein : and the lessee was bound to peform all covenants , articles and agreements contained or recited within the same indenture . and 〈◊〉 rent not paid the of august . eliz the vicar brought debt upon the bond : to which the defendant pleaded , that the rent was not demanded the day of august : upon which they were at issue : and the jury being ready at the bar , walmesley said , that the enquest ought not to be taken for three causes : first , he hath made a lease of the vicarage except the housing , and the plaintiff hath alledged the demand to be generall super terras glebales , and hath not shewed where . to that the justices said , it had been better to have said , at such a gate , or hedg , or high-way ; but notwithstanding they did not allow of that exception ; for if it were not well demanded , it ought to be shewed of the other side . the second exception was , because the enquest were all de vicincto de pancras , and it might be that some of the lands appertaining to the vicarage did extend to islington : but that exception was disallowed also . the third exception was , because that the v●nire facias did not well recite the issue , for the exception of the housing was left out : and per curiam , it is not needfull that all be recited : but if another issue then that upon which they were at issue had been recited , it had not been good . and afterwards the enquest was taken , and found for the plaintiff . but nothing was spoken , whether there needed any demand in such case , or not . pasch . eliz. in the common pleas. if a man be presented unto a benefice , which is not above the value of six pound per annum , and afterwards he is presented unto another of twenty pounds ; and afterwards is deprived for cause of plurality : the ordinary must give notice to the patron ; for that is at the common law : and untill deprivation it is no cession . trinity elizab. in the common pleas. throgmorton and terringham's case . in a replevin , the defendant did avow the taking of the cattell , by reason that one a. held of him an acre of land in the place where , &c. by fealty , and sixteen shillings rent , the rent payable at two feasts of the year , &c. and the plaintiffe said , that he held the same acre , and two others of the avowant by fealty , and sixteen shillings payable at one day , absque hoc that he held the said 〈◊〉 by the services payable at two dayes , &c. snagg . the tenure cannot be traversed : and e. the last case is the same case ; where the avowry is made for pence at four days ; and the plaintiff said , that he held by twelve pence payable at one day , without that that he held by the services payable at four dayes . and there it is holden , that the same cannot be an encroachment , because they agree in the services . walmesley , he shall have the traverse for the mischief which otherwise would follow : for if he should traverse the seisin , thereby he should confesse the tenure . periam concessit , and said , that the difference which is commonly taken in our books , is , that where they agree in the tenure , there the seisin is traversable ; but where they do not agree in the tenure , there the tenure is traversable . so is . h. . . . e. . . . e. . . . e. . . and he conceived here , that the payment at two dayes doth alter the tenure ; so as now it is another tenure then before . also he said , that if wh. acre and bl. acre be adjoyning , and are holden the one of i. s. and the other of i. d. and i. s. distrein and avow for both acres , that he may well traverse the tenure . meade . . h. . . a. it is said by brian , that if avowry be made for a tenure of two acres by twenty shillings , and the plaintiffe saith , that he holdeth these two and two other acres by twelve shillings , without that , that he holdeth the two acres by twenty shillings : that that is good , for that he cannot do otherwise . and it is no reason , that for a false avowry , the plaintiffe should be at a mischief . but the book is not ruled , for keble is contrary . vide librum . trinit . eliz. in the kings bench. savell and cordell's case . henry savell lessee for years of the manor of m. grants the same manor , habendum for so many years , which should be to come after his death , to cordell master of the rolls , if dorothy his wife so long should live : and afterward henry savell , and he in the reversion levied a fine . the case went by many conveyances further . but two points were here moved : . if it were a good grant for so many yeers , &c. shuttleworth argued that it was . but cooke contrary . and cooke said to that which hath been said , that leases which have uncertain beginning , may be by act of matter ex post facto , made certain , and so good . as a lease for so many years as i. s. shall name ; if he name , it is a certain lease : but if the lessor die before i. s. name , and after hee name , all is void , as it is in the commentaries put by weston , and granted by dyer . and the reason is , that it behoves that the interest passe out of the lessor during his life , and the deed ought to have its perfection in the life of the lessor . but in our case here , the lessor or grantor is dead before the certaintie of the beginning is known , and before any perfection of interest out of him : and therefore the reason in the common case , ass . and . e. . that there behoveth to be attornment in the life of the lessor , proves our case : for the reason of that is , that it behoveth that some interest passe out of the lessor or grantor during his life ; and that perfection of his grant be in his life or else the grant is void . vide . e. . alb . . and . e. . confirmation . if the chapter confirm the grant of the bishop after his death , it is void ; for it ought to have perfection in the life of the bishop , otherwise it is void . and upon that reason is the case put by popham , com. . b. that where a man grants all his term which shall be to come after his death ; that it is a void grant , because no interest passeth during the life of the grantor . and to this purpose is . e. . br. leases . . temps . h. . . if a man will take by livery within the view , it behoves the feoffee to enter during the life of the feoffor : and yet that is a more strong case ; for by the livery , being a ceremony of the law , it is presumed that the land passed ; and yet there ought to be an entry to fortifie the grant , otherwise it is void . the second point was , if by the fine levyed , the possibilitie aswell as the right of possession of the term did passe : and i conceive , that it doth ; therefore we see in many cases , a man may grant by his deed a possibility to come . as . h. . . where a man seised in the right of his wife , made a feoffment in see , and after they had issue , and the wife died ; that he should not be tenant by the courtesie , and yet the wife was remitted : but by his own grant he had granted from him the possibility he might have had to be tenant by the courtesie . and here , if cordell had entered , and made a feoffment in fee , or levied a fine , the possibility which he had to have the term , had been cleerly gone . . h. . . if i disseise my eather , and make a feoffment in fee , and afterwards my father dieth ; although that a new right descends unto me , yet i shall be barred of this possibilitie which i had at the time of the grant : but otherwise it had been , if this discontinuance or grant had been defeated by entry or otherwise , in my life , by my father or any other ; in that case i may shew the speciall matter , as . e. . . is , and so avoid my own deed. and . e. . . is , that tenant for years and he in the reversion disclaim , and it is holden a good disclaimer ; which proves , that a possibility may also pass by disclaimer . and . e. . and . h. . is , that if he who hath cause to have a writ of error , if he enter into the land , and make a feoffment , the writ of error is gon for ever ; so by these cases it is proved , and appeareth , that a possibility may passe by grant : and so in the principall case , the possibility to have the terme , is by this fine granted ; and the grant is a good grant , and it was adjourned . pasch . . eliz. in the kings beneh . . luddington and amner's case . intratur mich. . eliz. rott . . in a writ of error , the case was this ; perepoynt possessed of a lease for years , devised the same unto his wife for life ; and that after her decease , that it should go to his children unpreferred ; the wife took sir thomas fulster to her husband , and the lease was put in execution by fiery facias for the debt of sir thomas fulster , and afterwards sir thomas died , and the wife died : the administrators of sir thomas fulster did reverse the judgement , upon which the lease was taken in execution : and afterwards a. the daughter of perepoynt entred , supposing her selfe to be the only daughter of perepoynt alive , unpreferred by her father in his life time . and the pleading was , that the wife of perepoynt was his executrix , and that she entred into the lease after the death of perepoynt , virtute legationis & donationis praedict . cook. there is a difference in our books , that the devise of the occupation of a term , may be with the remainder over , but not a devise of the term with the remainder over . and the devisee of the occupation of a term hath one speciall property , and the remainder another property : as if a lease be extended upon a statute , the conusee during the extent hath one property , and he who is to have it afterwards , another property , and the reason of the difference is apparent , when the occupation is devised , and when the terme is devised ; for in the first case , he puts but only a confidence in the devisee , as it appears in welkdens case . but in the other case all the property goes , and there is no confidence reposed in the devisee . and there is a case in the very point , with which i was of councell , and was decreed in the court of chancery ; it was one edolf's case ; where the devise was of a terme , the remainder to another , and he made the devisee his executor , and he entred virtute donationis ; as in this case ; and it was decreed , that the executor might alien the terme , and that the remainder could not be good : and to this purpose vid. . h. . e. . h. . . but if there might be a remainder , yet incertae personae nulla donation , for if all the children be preferred , then the remainder is void ; and then the property of the lease is in the wife ; and she might preferre her at any time during her life , and the generall property cannot be in another , but in the executor , for the legatee cannot enter , although that h. . seemeth to be contrary . and if the whole property be in the wife , her husband might alien it , and therefore it may be extended for his debt , as . h. . . is . but it may bee objected , that the cases before put , are of a devise of a term , and this is of a lease . that makes no difference , for in wro●●sl●y's case , lease there is said to contain , not only a terme , but also the years to come in the terme . then the question is , if by the sale of the sheriff upon the fieri facias , if the term be so gone , that the wife shall not have it by the reversall of the judgment by error ? for the judgement is , that the party shall be restored to all that which he hath lost : it is very cleer that it shall never return , for if it should be so , then no sale made by the sheriffe might be good , unlesse the judgement be without error , which would be a very great damage to the common wealth . and also by reason , and by the judgment in the writ of error it should not be so restored , for the judgment is , that he shall be restored to all that which he hath lost , ratione judicii ; and here the defendant hath not lost any thing by force of the judgment , but by force of the execution : for the judgment was to have execution of li and of the li. he shall be restored again , and not of the lease : and therefore in . h. . if a manor be recovered , and the villains of the manor purchase lands , and afterwards the judgment is reversed by error , the recover or shall have the perquisite , and the other shall not be restored to it : and . h . a statute was delivered in owell maine , and a recovery was by the conusee upon garnishment of the conusor , and the conusee had execution ; and afterwards the judgement is reversed by error ; yet the conusor shall not be restored to the land taken in execution , but only the statute shall be redelivered back where it was before : and in this case if the party should be restored to the term , it should be great inconvenience . also if i give one an authority upon condition , and the party doth execute the authority , and after the condition is broken , the act is lawfull by him who had authority upon condition . and so was the lord of arundels case , where the feoffee upon condition of a manor , granted coppies ; it was holden , that the grants made by him were good , notwithstanding the condition was afterwards broken . and in e. . barr . that a recovery was erroneous , and the party being in execution , the gaoler suffered him to escape , and after the recovery was reversed for error , yet the action lay against the gaoler . also by him , the jury have given an imperfect verdict , so as we cannot tell whether the party were preferred or not , for the will was ( unpreferred generally ) and the jury find that she , viz. a. the daughter , was not preferred by her father in his life time , so as the preferment by the taile is limited generally ; so as if any other prefer her , she shall not have the remainder . and the jury have found , that she was not preferred by one certain , viz. by her father ; nor in a certain time , in his life time ; which is as much as to say , that she was preferred by the uncle , aunt or mother ; and if it were so , then the remainder is not good to her . also they find no preferment in the life of the father , and it may be that the father hath given her preferment by will , and that was no preferment in his life , but is consummate only by his death ; and so she might be preferred by him by implication , by his will. so as upon the whole matter , i conceive , that the judgement ought to be reversed . note , that this case was afterwards adjudged at hertford terme ; and the judgement was , that the issue of the wife had judgement for her terme ; and that the judgement upon which the execution was , was erroneous , and reversed by the writ of error ; and that the opinion of the justices was , that the term was not to be restored , but so much for which it was sold upon the execution . and the daughter of perepoynt brought an action for it , and had judgement . eliz. in the common pleas. . one had certain minerall lands leased to him for years , with liberty to dig , and make his profit of the mine . the lessee afterwards digged for mine , and sold the gravell which came of it : and by the opinion of the whole court , this sale was no waste , for no sale is waste , if the first act be not waste : as the sale of trees by tenant for life or years is not waste , if the cutting and felling down of them was not waste before , for the vendition is but a secondary act , and but subsequent to the act precedent ; which act , if it were lawfull , the sale also is lawfull , for the sale alone is not waste . but they said , that if the lessee fell or cut timber trees , and sell them , it is waste non quia vendebat , sed quia scindebat ; for if he suffer them to be upon the ground , without doing any thing with them ; yet it is waste ; but he may use them for the reparation of his house , and then it is no waste : and yet when he fels them with an intent for reparations , and afterwards sells them , it is waste non propter venditionem only , but for the felling ; for by this act done , it is plaine from the beginning to be unlawfull , for the sale is only a declaration of his ill intent , and a means that his meaning was , by felling of the trees , to benefit himself by the hurt and injury of another . but in the principall case , because he ought to digge the land , and that was lawfull for him to do , the act subsequent cannot be unlawfull : and so it was adjudged . . eliz. in the common pleas. . macrowe's case . macrowe brought debt upon a bond which was endorced upon condition to pay a lesse sum : the defendant pleaded the statute of . eliz. that all covenants , contracts and bonds , made for the enjoying of leases made of spirituall livings , by parsons , &c. were void ; and averred , that that bond was made for enjoying of such a lease : but because the condition expressed of the bond , was for payment of monie , the justices held it cleer for law , that the bond was good , and out of the statute : and so it was adjudged . . eliz. in the common pleas . kittley's case . an action of debt was brought against eustace kittley , and charls kittley , executors of the will of francis kittley : the defendants pleaded , that they had fully administred ; and upon a speciall verdict the case was this , francis kittley made the defendats his executors , who being within age , administration was committed unto another untill they came of full age ; and after they were of full age , the jury found , that in the hands of the administrator fuerunt bo●a & debita testatoris , to the value of .li. to which administrator the defendants executors did release at their full age all demands ; the which release , whether it were assets in the hands of the executors or not , the jurours prayed the opinion of the court. puckering the queens sergeant ; it is not assets , for a release of a thing which is not assets in the hand of an executor cannot be said assets , and things in action before they come in possession , cannot be said assets : but a gift of goods in posssession is assets , and a devastavit of the goods of the dead . also there is a difference betwixt a certain thing released and a thing uncertain ; of a certain it is assets , for by such means he hath given such a thing which is assets ; but contrary , of an uncertain . a●● this difference is proved by . e. . execut. . where it is holden , that if executors release to the debtor , he shall account for such sum before the ordinary ; by parne . but trew , he shall not account : but the whole court was against puckering . and first anderson , it is a cleer case , that this release is assets , for he hath thereby given away that which might have been assets : and the law doth intend , that when he release● , that he hath recompence and satisfaction from the party to whom the release is made : and he denyed the difference of certain and uncertain , put by puckering ; and be it in account or trespasse , a release is assets . and it is not requisite that every assets be a thing in possession , or in the hands of the testator ; for a thing may be assets , which never was in the testators hands , if those things 〈◊〉 in 〈◊〉 of the thing which was in the hands of the testaor , as money for land or other goods so●d : or if they came by reason of another thing which was in the hands of the testator , as increase of goods by the executors in their hands , by merchandizing with the goods of the testator , or goods purchased by the villain of the testator after his death , shall be assets . so money received by the executor of the 〈◊〉 of the testator after his death , shall be said assets . windham justice , so it is , if the testator have sheep , swine , or cowes , and dieth , and they have young lambs , pigs , or calves , they are assets for the reason aforesaid : and he agreed , that the release is assets ; and he said , it had been so here adjudged , and he denyed also the difference taken by puckering . periam agreed with the rest in all , and also denyed the difference . and by him , things in action or possession certain or uncertain , if they be released , they are assets : and he said , that the uncertainty must be such , that the same cannot be proved to the court , or unto a jury ; that the thing released might not by possibility have been assets . for if trespasse be done to the testa●●● by taking his goods and he dieth , and the executors release all actions , the same is assets , because 〈◊〉 might be proved to the jury , that had they not released but had brought their action of trespasse , de bont● asportatis in vita testatoris , &c. that they might have recovered damages , which would have satisfied the debts or legaces of the testator , and therefore it shall be assets : and yet the thing recovered was not in the testator , or a thing in possession , or certain in the hands of the executors ▪ with whom rodes agreed . and periam conceived , that such administrators made durante minori aetate of the executor , could not by our law , neither sue nor be sued ; for , as he conceived , the infant was the executor , and an infant executor may either sue or be sued , and may release if there be a sufficient consideration given him : and therefore administration for such defect is but idle : wherefore , he said , that if an infant doth release where he hath no cause , nor good consideration , he shall be answerable of his own goods , when he cometh of full age , for the wasting of the estate ; and such release shall be assets : and it was holden , that a release before probate of the will , is good ▪ and it is assets also . and the same term judgment was given , that the release of the enfant executor was assets . . eliz. in the common pleas. . sydenham and worlington's case . sydenham brought an action upon the case upon an assumps●t against worlington for li , and alledged for consideration , that he , at the request of the defendant , was surety and bail for j. s. who was arrested into the kings bench upon an action of li , and that afterwards , for the default of j. s. he was constrained to pay the said pounds . after which , the defendant meeting with the plaintiff , promised him for the same consideration , that he would repay that pound : upon which promise and consideration , the plaintiff brought this action . walmesley . this consideration will not maintain this action , because the consideration and the promise did not concur and go together ; for the consideration was long before executed , so as now it cannot be intended that the promise was for the same consideration . as if one give to me an horse , and a month after i promise him for the said horse ten pounds ; for that he shall neither have debt nor assumpsit , for it is neither a contract nor a sufficient consideration , because it is executed . anderson . the action will not lie , for it is but nudum pa●●●● because the supposed contract was determined , and not in esse at the time of promise . but he said it was otherwise upon a consideration of marriage , for that is alwayes a present consideration , and alwayes a consideration , because the party is alwayes married . windham to the same intent ; and compared it to the case of . h. . if one sell an horse to another , and after at another day will war●ant him to be good and sound of limb and member , it is void warranty ; for it ought to have been at the same time that the horse was ●old peri●m justice contrary : for he said , this case is not like to any of the cases which have been put ; because there is a great difference betwixt contracts and this action ; for in contracts , the consideration , and promise , and sale ought to concur , because a contract is derived of con & trahere , which is a drawing together : so as in contracts every thing requisite ought to concur ; as the consideration of the one side , and the promise or sale of the other side . but to maintain an assumpsit , it is not requisite , for it is sufficient if there be any moving cause or consideration precedent , for which cause or consideration the promise was made ; and that is the common practice at this day : for in assumpsit , the declaration is , that the defendant , for and in consideration of ten pounds to him paid ( post●a , silicet , ) a day or two after , super se assumpsit , &c. and that is good ; and yet there the consideration is executed . and he said , that hunt and baker's case ( which see . eliz. dyer . ) would prove it . the case was this : the apprentice of hunt was arrested when hunt was in the country ; and baker one of hunts neighbours , to keep the apprentice out of the counter , became his baile , and paid the debt . afterwards hunt returning out of the country , thanked baker for his neighbourly part , and promised him to repay him the said summ : upon which baker brought an action upon the case upon the promise : and it was adjudged that the action would not lie ; not because the consideration was precedent to the promise , but because it was executed and determined long before . but there the justices held , that if hunt had requested baker to have been surety , or to pay the debt , and upon that request baker paid the debt , and afterwards hunt promiseth for that consideration , the same is good ; for the consideration precedes , and was at the instance and request of the defendant . so here , sydenham became bail at the request of the defendant , and therefore it is reason , that if he be at losse by his request , that he ought to satitfie him . and he conceived the law to be cleer , that it was a good consideration , and that the request is a great help in the case . rodes justice agreed with periam , for the same reasons , and denyed the case put by anderson . and he said , that if one serve me for a year , and hath nothing for his service , and afterwards , at the end of the year , i promise him ten pounds for his good and faithfull service ended ; he may maintain an assumpsit , for it is a good consideration : but if the servant hath wages given him , and the master , ex abundantia , as he said , promiseth him ten pounds after his service ended , the same promise shall not maintain an assumpsit ; for there is not any new cause or consideration preceding the assumpsit . and periam agreed to that difference , and it was not denyed by the other justices : but they said that the principall case was a good case to be advised upon ; and at length , after good advice and deliberation had of the cause , they gave judgment for the plaintiff , that the action would lie . and note , that they very much relyed upon hunt and bakers case before cited . see hunt and baker's case in . eliz. dyer . pasc . . eliz. in the common pleas. carter and crost's case . carter brought an action of detinue of a chaine against crosts , and declared , that thomas carter his brother , was thereof possessed , and died intestate ; for which cause the bishop of cork granted him letters of administration ; and that the chain came to the defendants hands by trover , &c. and declared also , that he was as administrator thereof , possessed in london : to which the defendant crosts pleaded the generall issue ; and the jury gave a speciall verdict , and found that the administration was committed to carter in london by the bishop of cork in ireland here , and did not find that carter was possessed of the chain in london . and upon this special verdict , first it was moved , that the bishop of cork in ireland , being in england , might commit administration of things in ireland ; and it was held cleerly by the court , that he might of things within his diocesse in ireland , because it is an authority , power , or matter that followes his person ; and wheresoever his person is , there is his authority : as the bishop of london may commit administration , being at york ; but it ought to be alwaies of things within his diocesse ; and therefore they held , that the declaration was good in that point , that the bishop of cork did commit administration in london , although there be no such bishop of england . the second point was , if an aministrator made by a bishop of ireland , might bring an action here as administrator ; and it was holden , that he could not , because of the letters of the administration granted in ireland , there could be no triall here in england ; although that rodes justice said , that acts done in spirituall courts in forrain places , as at rome , or elsewhere , the law saith , that a jury may take notice of them ; because such courts , and the spirituall courts here , make but one court ; and he proved it by the case of the miscreancy in . r. . tryall . where a quare impedit was brought by the king against the clerk of a church , within the bishopprick of durham , and counted that the bishop who is dead , presented his clerk , and that the clerk died , and the chapter collated a cardinall , who for miscreancy and schisme , was deprived , the temporalties being in the kings hands . burgh , he hath counted of an avoidance for miscreancy at the court of rome , which thing is not tryable here . belknap chief justice , i say for certain , that this court shall have conusans of the plea , and that i will prove by reason ; for all spirituall courts are but one court ; and if a man in the arches , be deprived for a crime , and appeal to rome , and is also there deprived , that deprivavation is triable in the kings court , in the arches . and if a man be adhering unto the kings enemies in france , his lands are forfeitable , and his adherence shall be tryed where his land is , as oftentimes it hath been for adherence to the kings enemies in scotland : and so ( by my faith ) if one be miscreant , his land is forfeitable , and the lord thereof shall have the escheat , and that is good reason . for if a man who is out of the faith of the king , shall forfeit his land for the same ; à for●iori , he who is out of the faith of god ; and that he swore to be law , whereupon burgh said , respondes ouster : and so saith fitzherbert , tryal . by that plea and judgement , miscreancy and deprivation at rome shall bee tryed here : and there the venire facias was awarded to the sheriffe where the church was , and not to the bishop of durham ; and so the miscreancy and deprivation shall bee tryed where the church is . the third point was , whether an administrator might count of his own possession , although he was never possessed : and the whole court were of opinion that he might , if the intestate at the time of his death was possessed ; the administrator may declare of goods taken out of his owne possession , although he was never possessed ; for of transitory things , the law casts upon him a sufficient possession to maintain an action possessory , as the lord before seisin may have a ravishment of ward , &c. but otherwise it is , if one take the goods of the intestate out of his possession before he dieth , for then but only a bare right comes to the administrator . and that is to bee meant when the goods are taken transgressivè , and not destrictivè . the fourth point was , whether the jury might find matter done out of the realme ; and if that should abate the writ or not . and they held also cleerly , that upon a generall issue , the jury may find a forrain matter , as a thing done out of the realme ; but it shall not abate the writ , if it be not matter of substance , and pleaded before : but here the finding of the letters of administration , is more then they had in issue ; and also is but matter of evidence ; for the substance in this case was the possession , and not the administration , for he might have an action of his possession without shewing the letters of administration : and afterwards judgement was given for carter the plaintiffe . mich. . eliz. in the kings bench. . futter aud booromes case . the case was , that the queen by her letters patents anno . of reign , ex certa scientia & mero motu , &c. did grant to b. totam illam portionem decimarum & garbarum in l. in com. norf. unà cum omnibus aliis decimis suis cujuscunque generis & speci●i fu●rint in l. nuper in possessione johannis corbet , or his assigns , nuper abath . d● wenly , pertinent . &c. and in facto the parsonage of l. was parcell of the abby of wenly , and out thereof was a portion appertaining to another church ; and this rectorie came unto the queen by the statute of dissolution of abbyes : the question was , whether the rectorie do pass by the grant , totam illam portionem : there being also words in the patent , viz. non obstante any misnosmer , misrecital , or other such things which are recited in the statute for confirmation of patents . hamon : the grant is good ; for this word ( portion ) shall not be said a thing severed from the church and rectorie ; and all the tythes are parcel of the rectorie : for as . e. . . is , before the councel of lateran , a man might give his tythes to what church he pleased ; and when any thing is given to the church , it is a portion belonging to the church ; as the glebe is , which is but a clod of earth , which is parcel of the rectorie and a portion of it . and a case in this court in the time of this queen , was argued , and there in a rectorie there were many priests , and each of them knew his portion , so as they were called portionary priests , which was in respect they had each of them interest in the church , and not because their portions were severed each from the other . and . e. . . by pigot it is said , if a parson hath any tythes in another parish , as appertaining to his church , it is called a portion ; so as portion is not meant that which is severed by it self as in gross ; but by portion is meant all the tythes appertaining to the rectorie , or the rectorie it self . for as . ass . . is , if the king have tythes of those lands which lie out of any parish , if he grant totam portionem decimarum , &c. i conceive , that the tythes shall pass thereby : and yet it is a thing severed from other tythes ; but it doth contain all the qualitie of tythes in that place . and also if the king grant his rectorie of d. to j. s. saving to him the tythes , and afterwards grants totam portionem decimarum , &c. i conceive cleerly ( under correction ) that the tythes shall pass . and in the principal case , if the tythes shall not pass by this word ( portion ; ) yet the non obstante in the letters patents de male nominando , &c. shall make it to be a good grant , and that so the tythes shall pass thereby . we are also to consider , if by any words subsequent in the patent , the grant be not good . viz. by these words , cum omnibus aliis decimis &c. in tenura & occupatione johannis corbet &c. whereas in truth john corbet was never occupier of them : and as to that , i conceive , that the words before , cum●omnibus , &c. passe the tithes ; and that the words after , shall not abridge or controle the largeness of the precedent words ; and to that purpose is the case . e. . . of the grant of the king to the earle of salisbury , &c. in the end of which grant were these words , quas nuper concessimus patri , &c. although that the thing granted , was never granted to the father ; yet the grant was good , and not restreined by those words coming after . . e. . a release was pleaded of a right which the party had in lands of the part of his father , &c. there , although he had the land from the part of his mother , yet the release was good . in the case of the bishop of bath and wells , which was lately argued in the exchequer chamber ; there it was agreed , that if the king grant a faire in such a place , or elsewhere in the county of somerset ; if he mistake the county , in putting one county for another , yet the grant is good , and all that coming after the alibi shall be void . he further argued , that all the matter appearing by speciall verdict , is not well found ; for the jury find , that no tithes were in the occupation of john corbet at the time of the grant ; and no mention is in it , that they were not in his occupation nor in the occupation of his assignes ; for they might be in the occupation of his assigns , although that they were not in his own occupation : for in a verdict , if it strongly imply any thing not expressed ( as in the case of trivilian : where the jury found a devise of land , without saying , that the land was holden in socage ) it is a good finding of the jury ; for no devise could be , if it were not of land holden in socage , and therefore that tenure is implyed . contrary , when a man is to plead a devise ; but where the verdict doth not strongly imply a thing , it shall not be good ; as in scolasticas case , plo. com. . exception was taken that the jury did not find , that the devisor had not any heir male alive praeter the said john and francis ; for if he had , the wife of the plaintiffe had no cause of action . and it was there holden by harper , that it was not a good verdict for the incertainty ; so in our case . cook contrary : . the grant is not good , and the rectory is no part of it ; nor can they passe by the word [ portion . ] . by the etimology of the word ; for portion is a thing in grosse by it selfe , and cannot passe by that thing which is intended nomen collectivum , as a rectory is . so of a manor ; if a man grant totam illam portionem manerii , hee being seised of a manor , nothing passeth ; for portio is no more then partio , as the latinists say ; and then if a man grant all that part of his manor , or part of his tithes in d. and he be seised of the whole manor of d. or of the rectory of d. nothing passeth . also the words after expound the queens mind , for the words precedent are coupled with a cum ) after , scil . cum omnibus aliis , &c. so as the first part shews the grant of tithes , and the later part shews what tithes ; viz. those which were in the occupation of john corbet ▪ so as but part is granted : and in the kings grant , a part shall not be taken for the whole ; and so in no case , if not by the figure synecdoche , which cannot be in cases of grants at the common law. also the words are , totam illam portionem , &c. and not totam meam portionem , &c. and the word [ illa ] or [ that , ] ought to have a word [ what ; ] which is a word shewing in whose possession the portion was . also the kings letters patents ought for the most part be taken according to the meaning of the king ; for the case was in the exchequer : that where the king granted all his tenements in d. that nothing passed by that grant , but the houses . otherwise it is in the case of a common person . so . ass . where the king grants goods of felons quorumcunque damnatorum , it shall not extend to treason , nor to murder of the kings messenger . so . h. . . if the grant be of all the goods of those who pro aliqua transgressione sive delicto , &c. forisfacere deberent ; it shall not extend to those who are felo de se . also the non obstante doth not help the matter ; for i take this difference , when nothing passeth by the words precedent , ex vi termini , there nothing is helped by the non obstante : but if any thing passe by the precedent words , ex vi termini , there a non obstante may make the thing good , which otherwise should be void : as if the king grant to j. s. the manor of d. non obstante that he is seised for the term of life thereof ; it is a void grant : but if the grant were of the manor of d. notwithstanding that i. s. hath it for life , here the non obstante makes the grant good ; which otherwise should be the ignorance of the king to make a grant of that of which he is excluded by the non obstante ; because thereby he takes knowledg of the particular estate , and so he is not deceived . as to the matter moved against the verdict , i conceive , that it makes against the other side ; for it was on his part to prove the occupation : and if there be no occupation at the time of the lease , the grant is void : and he was to prove it , being in the affirmative . and then , in re dubia majus inficiatio quàm affirmatio intelligenda : and [ a may be ] may be intended in every case . and if such construction should be in speciall verdicts , i dare affirm , that by such [ may bees ] all speciall verdicts shall be quashed : but the law is , to give a favourable construction of them , according to the meaning of the jurours . snagg contrary : and by him these words , [ cum omnibus aliis , &c. ] are void in the kings case : and vouched the case of . e. . . before vouched ; where the king had granted to the earl of salisbury the custody of the lands of the prior of mountague , being seised into the kings hands as a prior alien : and afterwards the earl died , his heir within age , whereby the said lands , and others , and advowsons , came to the kings hand by reason of minority ; and afterwards the king granted to the son all the lands and advowsons which were patris sui , ac omnes terras , ac omnes advocationes of the said prior , which the king had before given to the father of the said son . and it was there holden , that although that the advowsons passed not to the father , yet by that grant they did passe ; and that these woads [ which he granted to his father ] were meerly void . cl●nche justice . nothing passeth by this word [ portion ] for it is a thing in gross , and a thing in gross cannot contain another thing , and a word which signifies a thing in grosse cannot passe another thing : as if a man grant all his services in d. it is to be intended services in grosse ; and if he have not any services , but those which are parcell of a manor , nothing shall passe by those words . but i conceive , that those tithes which are parcell of the rectory shall passe by these words , cum aliis , &c. for although that the words are , in the tenure of john corbet , yet if they were not in his tenure , the non obstante will help it ; for it is , non obstante any misnaming of the tenants , or of the quantity or quality of the tithes ; so as these words imply as much as if the grant had been in the tenure of john corbet , or of any other in l. or elsewhere . gaudy justice , if the words totam illam portionem were left out of the book , the other words , cum omnibus aliis , shall passe nothing ; and those words totam illam portionem , are as nothing to passe a thing not in grosse ; and by consequence nothing shall passe by the other words : and afterwards judgement was given , that nothing passed by the letters patents . hill. eliz. in the kings bench. . cropp's case . cropp made a lease for years , reserving rent at mich. upon condition , that if the rent be behind at mich. and a month after , that he might enter . the lessee after mich. and before the month ended , sent his servant to the house of cropp , to pay the money to cropp ; the servant coming to cropps house ; found him not , for he was not at the house ; the servant delivered the rent to one margery briggs , who was his daughter in law , to deliver the same to cropp the lessor . and the same margery at one or two dayes before the payment of the said rent , had received the rent in the like manner , and had paid it to cropp , and he had accepted of it : but now he refused to receive it of her , but at the last day of the month he went to the land , and there demanded the rent , and because it was not paid , he entred . laiton argued for the lessor . that his entry was lawfull , for , he said , that the tender made by margery briggs to the lessor was not sufficient : . because the servant of the lessee had authority to deliver it to the lessor ; therefore when he delivers it to another , he hath not pursued his authority . . h. . & . h. . letter of atturney made to diverse to give livery of seisin . if one make livery alone , it is void ; . h. . if a capias be to many coroners , and one execute it , it is void ; . e. . if one hath a letter of atturney to make livery , he cannot transfer this authority to another to make livery for him . also , if in this case a stranger had tendered the rent , the lessor was not bound to receive it ; as upon a mortgage , if a stranger tender the money , the mortgagee is not bound to accept of it . . e. . in case of corporall service , as homage or fealty , the demand is to be made of the person ; but of rent , the demand is to be made upon the land , because the land is the debtor . clenche justice conceived , that if the lessee himselfe had delivered the rent to margery briggs , that it had been good , but it is a doubt if good , made by the servant , for he could not transfer his authority to another . wray chief justice , if it were upon a bond , the obligee was not bound to accept of it before the day ; so if it were payable at mich. only , there the lessor is not bound to accept of it before the day : but in as much as 't is after the day , the month is a liberty and benefit for the lessee ; and it was due at mich. therefore i conceive , that being tendred to him within any part of the month , that he is bound to accept of it . and as to that , that his servant cannot transfer his authority over , and therefore margery briggs is but a stranger in that act : that is not so , for now she is a servant in that , to the lessor himself ; and therefore there is privity enough : also she hath received the rent for him before . what then , said laiton ? we can prove a speciall commandment for the time before that she received it . at another day the case was moved again ▪ and it was ruled against cropp the lessor , because the rent was due at mich. and the month after was given because of the penalty of re-entry ; and the tender and refusall after the rent was due , and within the month , saves the penalty ; and also lawes ought to be expounded secundùm ●quum & bonum , and good conscience ; and the lessor was at no prejudice , if he had accepted of it , when his daughter in law tendred it unto him ; and therefore it was conceived , that he had an intent to defraud the lessee of his lease ; and the law doth not favour frauds ; and therefore it was adjudged against cropp the lessor . hill. eliz. in the king 's bench. prideaux's case . in this case it was moved , where a man marrieth a woman who is an administratrix , so as the suit is to be in both their names , whether they shall be named in the writ administrators or not ? wray chief justice , they shall be ; for by the entermarriage , the husband hath authority to entermeddle with the goods , as well as the wife ▪ but in the declaration , all the speciall matter ought to be set forth ; and so some said is the book of entries , that both of them shall be named administrators . hill. . eliz. in the king 's bench. . an action upon the case was brought for these words , viz. thou art a cozener and a bankrupt , and hast an occupation to deceive men by ; the words were spoken of a gentleman , who had one hundred pound land per annum to live upon ; and therefore although he used to buy and sell iron , yet because he was not a merchant , nor did not live by his trade , the better opinion of the court was , that the words were not actionable , and so adjudged . hill. . eliz ▪ in the king 's bench. harwood and higham's case . one had houses and lands which had been in the tenures of those which had the houses : and he devised his houses with the appurtenances ; and it was holden , and so adjudged by the whole court , that the lands did passe by the words , [ with the appurtenances : ] for it was in a will , in which the intent of the devisor shall be observed . trinit . . eliz. rot. . in the common pleas. the queen and savacre's case . in a quare impedit by the queen against savacre clerk , the case was this ; the queen presented to a parsonage which was void , by the taking of another benefice by the said savacre ; and the said savacre for to enable him to have two benefices , pleaded , that he was the chaplain of sir james a crosts , controller of the queens house , who , by the statute of . h. . cap. . might have two chaplains , and might qualifie them to take two benefices ; to which it was replied , that the said sir james a crost had two other chaplains , which are qualified to have two benefices , and have also two benefices by reason of that qualification , and also are alive ; so as he is a third chaplain , who could not be qualified by that statute . to which it was answered ; that one of those two chaplains is removed and discharged by the said sir james a crost to be his domesticall chaplain : scil . capellanum familiarem , as it was pleaded , and so he hath now but two chaplains , of which the defendant was one ; upon which there was demurrer joyned . three points were in the case : . if the qualification , sub sigillo , be sufficient within the statute , without the signature or name of sir james a crost . . when two chaplains are qualified , and one is removed out of service , if he might qualifie another by the statute , the party being alive who was qualified . . whether he remain his chaplain , notwithstanding such removall during his life . upon which points , after perusall of the statute , it was agreed by the whole court , that the queen ought to have judgement , and so they gave judgement presently : and the reasons of their judgement were , for the first point , because that the defendant s●v●cre was not qualified , sub signo & sigillo praedict . jacobi a crost , but only sub sigillo ; and the words of the statute are , viz. under the sign and seal of the king or other their lord or master , &c. which words , or other their lord or master , shall be referred to sign and seal , which is limited to the king. and as to the second point , they held the law to be cleer , that after that he hath retained as many as by the law he may retaine , and they are sub signo and sigillo testified to bee his chaplains , and by reason thereof have qualification to have two benefices , and have two benefices by vertue thereof , although that afterwards they are removed for displeasure or otherwise out of service ; yet during their lives , their master cannot take other chaplains , which may by this statute be qualified ; for so every baron might have infinite of chaplains which might be qualified , which was not the meaning of the statute ; and of that opinion is the lord dyer in his reports . and as to the third point , they held , that although he were removed from the domesticall service of the family , yet hee did remaine chaplain at large ; and so a chaplain within the statute : and further , the opinion of the court was in this case , that if the party qualified to die , the queen , or other master mentioned in the statute , might qualifie another againe : quod nota . the case was entred pasch . . eliz. rot. . scot. mich. , . eliz. in the king 's bench. . one made a deed in this forme , noverinit , &c. that i have demised and to farme letten all my lands in d. to i. s. and his wife , and to the heirs of their two bodies for thirteen years . and it was moved , that it was an estate in taile , and . e. . and . h. . were vouched . but clenche justice ( who was only present in court ) was of opinion , that it is but a lease for years , although it was put that livery was made secundùm formam chartae : and his said , that if one make a lease for forty years to another , and his heirs , and makes livery , that it is but a lease for years ; and he said , it is no livery , but rather a giving of possession . but he would have it moved again when the other justices came . mich. , . eliz. in the king 's bench. an action upon the case was brought against an inn-keeper upon the custome of england , for the safe keeping of the things and goods of their guests ; and he brought his action in another county then where the inn was ; and it was said by clench justice , that if it be an action upon the case , upon a contract , or for words , and the like transitory things , that it may be brought in any county ; but in this case he said , it ought to be brought where the inn is . mich. , . eliz. in the king 's bench. . one charged two men as receivers ; the question was , whether one of them might plead , ne unque son receiver ; and it was moved , that he could not , but ought to say , n● unque son receiver , absque hoc , that he and his companion were receivers . clenchè and suit justices held , that it was well without traverse , and vide . e. . . where an account was brought against one , supposing the receipt of two hundred marks by the hands of i. p. and r. c. the defendant ( as to one hundred marks ) pleaded , that he received it by the hands of i. p. tantùm , without that , that he received it by the hands of i. p. and r. c. and as to the other one hundred marks , he received them from the hands of r. c. only , without that that he received i. p. and r. c. and there it was doubted , whether it be good or not . but in the end of the case , by fitz. accompt . . if an account be brought against two , and one saith ▪ he was sole his receiver , and hath accounted before such an auditor , if the plaintiffe answer unto his bar , he shall abate his writ , because the receipt is supposed to be a joint receipt : and it is not like unto a praecipe quod reddat against two . mich. , . eliz. in the king 's bench. . an action upon the case was brought against one , for that he said to another , i will give thee ten pound to kill such a one ; and the question was , whether the action would lie . it was said , by sir thomas co●kaine , that such a lady had given poyson to such a one to kill her child within her ; that the words were not actionable . also one said , that another had put gun-powder in the window of a house , to fire such a house , and the house was not fired ; adjudged that the words were not actionable . the case was betwixt ramsey of buckinghamshire and another , who said , that he lay in wait to have killed him ; it was found for the plaintiffe , and he had forty pound damages given him . but of the principall case the court would advise . mich. , . eliz. in the kings bench. it was holden by the court , that the habeas corpus shall be alwayes directed to him who hath the custody of the body : therefore whereas in the case of one wickham , it was directed to the maior , bailiffs , and burgesses , exception was taken unto it , because the pleas were holden before the maior , bailiff and steward : but the exception was dissallowed : but otherwise it is in a writ of error ; for that shall be directed to those before whom the judgment was given . in london the habeas corpus shall be directed majori & vicecomit . london , because they have the custodie , and not to the whole corporation : but i conceive , that the course is , that the writ is directed majori , aldermannis , & vicecomitibus , &c. mich. & eliz. in the common pleas. marsh and palford's case . owen moved this case , that one had an upper chamber in fee , and another had the neather or lower part of the same house in fee ; and he who had the upper chamber pulled it down , and he which had the lower room , would not suffer him to build it up again . but the opinion of the justices was , that he might build it up again , if he did it within convenient time . and there it was said , that it had been a question , whether a man might have a free-hold in an upper chamber ? mich. , eliz. in the kings bench. . a question was moved to the court , whether tithe should be paid of heath , turf , and broom ? and the opinion of suit justice was , that if they have paid tithe wool , milk , calves , &c. for their cattell which have gone upon the land , that they should not pay tithe of them . but some doubted of it , and conceived , that they ought to say , that they have used to pay those tithes for all other tithes ; otherwise they should pay tithe for heath , turf , broom , &c. mich. , . eliz. in the kings bench. . two parsons were of two severall parishes , and the one claimed certain tithes within the parish of the other , and said , that he and all his predecessors , parsons of such a church , scil . of d. had used to have the tithes of such lands within the parish of s. and that was pleaded in the spiritual court : and the court was moved for to grant a prohibition : and suit and clenche justices , he shall have a prohibition , for he claims onely a portion of tithes , and that by prescription , and not meerly as parson , or by reason of the parsonage , but by a collaterall cause , viz. by prescription , which is a temporall cause and thing . and it is not materiall , whether it be betwixt two parsons . vide . h. . . br. jurisdiction . and . h. . and . h. . . br. jurisdiction . where in trespasse for taking of tithes , the defendant claimed them as parson , and within his parish : and the plaintiffe prescribed , that he and his predecessors , vicars there , had had the tithes of that place time out of minde , &c. and the opinion of the court was , that the right of tithes came in debate betwixt the vicar and the parson , who were spirituall persons , who might try the right of tithes : and therfore there the temporall court should not have the jurisdiction . mich. , eliz. in the kings bench. in an indictment upon the statute of . h. . of forcible entry , the case was this : one was lessee for yeers , and the reversion did belong unto the company of goldsmiths : and one was indicted for a forcible entry , and the words of the indictment were , that expulit & disseisivit the company of goldsmiths , & quendam i. s. tenentem expulit . cooke took exception to the indictment , and said , that a disseisin might be to one although not in possession , as to a reversioner upon a term for yeers , or upon a wardship ; but he could not be expulsed if he were not in possession , for privati● praesupponit habitum : and after it saith , that the tenant was expulsed ; and two cannot be expulsed where one onely was in possession : therefore it ought to have said , that the tenant of the free-hold was disseised , and the termor expelled ; and it applyes the word expulit to both . and fuller took another exception , that the cart is set before the horse : for he who had the free-hold could not be disseised , if his termor were not first ousted : and the indictment is ▪ that the tenant of the free-hold was expulsed and disseised , and then the termor was expelled . but sui justice , as to that , said , that the later clause , scil . et quendam i. s. tenentem , &c. is but surplusage : for if one enter with force , and expell the tenant of the free-hold , it is within the statute of . h. . then fuller moved , that the indictment doth not shew the place where he expelled him . but cle●ch justice said , that that was not material , for he could not expell him at another place then upon the land : as a man cannot make a feoffment by livery and seisin at another place , but upon the land , unless a feoffment with livery within the view . and as to the objection of cook , that the indictment is , that he disseised and expelled the tenant of the free-hold out of the possession of the free-hold : to that he answered , that the possession of the termor is the possession of him in the reversion . mich. , . eliz. in the king 's bench. a man seised of a copy-hold in fee , made his will , and thereby he devised the same unto his wife for her life ; and that after her death , his wife or her executors should sell the land : he surrendred to the use of his wife , which was entred in hac forma ; viz. to the use of his wife for life , secundùm formam ultimae voluntatis . the woman sold the land during her life : the question was , whether she might sell or not ? suit justice said , that the intent doth appear that she might sell during her life ; for when it saith , that she or her executors should sell after her death , it is meant the estate which is to come after her death , for the wife after her death could not sell . the second point was , when the surrender is to the wife for life , secundùm formam ultimae voluntatis , whether here she have the land for life , and the fee also to sell . clenche , if she had not the fee to sell , then the words secundùm formam ultimae voluntatis , should be void ; for the surrender to the use of the wife for life , gives her an estate for life , without any other words . suit , if it were ad usum ultimae voluntatis , without speaking , what estate the wife should have ; no doubt but shee should have for her own use for life ; and that afterwards she might sell the land ; but he said , as the case is put , it is a pretty case : and it was adjourned . mich. , . eliz. in the kings bench. this case was moved in court. a copy-holder committed waste , by which a forfeiture accrued to the lord , who afterwards did accept of the rent : the question was , whether by this acceptance he were concluded of his entrie for the forfeiture . cook said , he was not , for it is not as the case e. . where a lease is made upon condition that the lessee shall not do waste , and he commits waste , and then the lessor accepts the rent , there he cannot enter ; but otherwise is it of a copy-hold , for there is a condition in law , and here in fait ; and a condition in fait may save the land by an acceptance , but a condition in law cannot ; for by the condition in law broken , the estate of the copyholder is meerly void . and the court agreed , that when such a forfeiture is presented , it is not to entitle the lord , but to give him notice ; for the copy-hold is in him by the forfeiture presently without any presentment . a man made a lease for years , upon condition that he should not assign over his lease , and it was reserving rent ; and after he did assign it , and then the lessor accepted the rent , there he shall not enter for the condition broken . lessee for years , upon condition , that he should not do waste , and the lessor accepts of the rent for the quarter in which the waste was done , yet he may enter ; but if he do accept of a second payment of the rent , then it is otherwise ; but if it were upon condition , that if he do waste , that his estate shall cease : there no acceptance of the rent by the lessor can make the lease good . it was adjourned . mich. , . eliz. in the kings bench. the lord admirall did grant the office of clark or register of the admirall court , to one parker and herold for their lives , & eorum diu●ius viventi : and herold bound himself in a bond of five hundred pound to parker , that the said parker should enjoy the office , cum omnibus proficuis during his life ; and afterwards herold did interrupt the said parker in his office ; upon which he brought an action of debt upon the bond. the defendant pleaded , that such is the custome , that the admirall might grant the same office for the life of the admirall only ; and that he is dead , and so the office void ; and that he did interrupt him , as it was lawfull for him to do ; and demanded judgement of the action . upon which cook did demur in law ; and he took divers exceptions to herolds plea. . that hee hath pleaded a custome , and hath so pleaded it , that no issue can be taken upon it ; for he saith , quod vsitatum est , quod admirallis pro tempore existens non potest concedere officium praedict . nisi pro termino vitae suae ; and doth not shew where the court is holden ; and doth not say quod ●alis habetur consuetudo in curia , as he ought , and as it is in . & phil. & mar. dyer . in an assize brought of the same office of registership of the admiralty : for there he brought assize de libero tenemento suo in ratcliffe ; and alledged , quod per consuetudinem in curia admiral . à tempore , &c. and he said , that the court hath been used to be holden time out of mind , &c as well at ratcliffe as elsewhere . and if the place be not alledged , then it cannot be known from what place the visn● shall come : see also that forme observed in the book of entries . b. so in an assize of the office of philizer in the common pleas it was alledged where the bench was , viz. in com' midd ' as it is in my lord dyers reports . also . he doth not say , that curia admirallis is an ancient court , &c. as he ought ; for in . h. . it is said , that where a prescription is alledged and pleaded in a court , he ought to say , that is is an ancient court , in qua habetur talis consuetudo , &c. for a prescription cannot be in any court , if it be not an ancient court. the third matter was , because that in the condition of the bond it is said , that they are seised of that office to them for their lives , & eorum diutius viventi : therefore he shall be estopped to say , that it is good only for the life of the admirall , as in . e. . . he cannot speak against the condition of the bond , although it be but a supposal or recital . the fourth matter was , because he hath bound himself , that the other should enjoy the same all his life without interruption : although that the office become void by forfeiture or otherwise , yet he cannot have it against his own bond. and cook said , there is a case in my lord dyers reports ; where , if the lessor warrant the estate of the lessee , if he be ousted by a stranger without title , he shall have no action of covenant : but if the covenant be , that he shall quietly enjoy it against him , although that the lease become void ; yet the lessor shall not take advantage against him . clenche justice , if the party occupy the office by right or by wrong , it is not materiall ; he is not to interrupt him against his owne bond. mich. , . eliz. in the kings bench. an action of debt was brought for an amerciment in a court baron : and the plaintiffe declared , that the defendant was amerced at the court baron of the farmor , of the manor of cinkford : and exception was taken , because it might be that he was amerced at another court of the farmor ; and therefore he ought to have said ; at the court baron of the manor , and not at the court of the farmor of the manor . another exception was , that hee said , that at such a court holden before the steward there , he was amerced : whereas , in truth , the court baron is holden before the suitors , because they are the judges , and not the steward ; and for that was vouched . h. . and fitz nat. in the writ of moderata misericordia . suit justice . true it is , that the suitors are judges in real causes , not in personal . another exception was taken , that he doth not shew , that he had requested or demanded the amercement . but to that it was answered , that [ licet sepius requisitas ] was in the declaration , and that is sufficient , because it was a duty before the request ; but if it first begin upon the request to be a duty , then it ought to be alledged in facto that there was a request . another exception was , that no custome was alledged that they might amerce , for it is not incident of common right unto a court baron ●or to amerce , but to distrain or seise ; therefore custome ought to warrant it . the case was adjourned . mich. , . eliz. in the kings bench. . an action of debt was brought upon a concessit solvera , according to the law merchant , and the custome of the city of bristow , and exception was taken , because the plaintiff did not make mention in the declaration of the custome : but because in the end of his plea he said , protestand● , se s●qui querelam secundùm consuetudinem civitatis bristow ; the same was awarded to be good ; and the exception disallowed . mich. , . eliz. in the king 's bench. . svit justice said , that if the custome of a manor be , that the homage might make by-lawes , it shall bind the tenants , as well free-holders , as copy-holders : but tanfi●ld , of councell in the case , said , that it is no good nor reasonable custome : but such by-lawes may be made by the greater number of the tenants , otherwise they shall not bind them mich. , . eliz. in the king 's bench. the vicar of pancras case . the vicar of pancras sued one in the spirituall court for tithes ; and he pleaded , that some of them , for which the vicar did sue , did belong to the parson ; and that he had paid them to the parson , and prayed a prohibition . cook , he shall not have a prohibition ; for by this plea he hath put in debate the controversie of the tithes , betwixt the parson and vicar ; and then when both are spiritual persons , the common law shall not hold plea of them , as is . h. . . and . h . also by this plea a modus decimandi is not in question , but the right of the tithes , and that doth appertain to the common law. and there cook said , that is holden in . h. . that unions and endowments of vicarages do appertain to the spirituall law. also the prescription of the defendant was , that he had used , time out of mind , &c. to have for horses a gi●tment , her bage , .d. ob . q. and after that they had used to pay for every cow to the vicar .d. and for the calfe and milk of every cow , .d. and cook took exception that such prescription was double and repugnant in it self , for he prescribes that he paies for herbage ; and then he prescribes , that he paies for every cow d. which cannot be meant but for herbage of the cow , for it is not for milk or calfe of the cow , for he prescribes to pay for them .d. he took another exception , that he prescribes that he hath used to pay , but doth not shew that he hath paid ; for so he ought to do , for otherwise he shall out the spirituall court of jurisdiction , and yet not give any remedy in this court. also , he saith , that he hath paid , but doth not shew where ; and the other may say , n●n solvit , and so an issue shall be , and no place from whence the visne shall come . godfrey contrary . if one be a lay man , and the other a spirituall man , then the tryall shall be at the common law , as it is holden . h . and . e. . and the defendant here is a lay man , who makes prescription of a modus decimandi , for the discharge of tithes in kind . as to that which cook said , that he prescribes that he hath used to pay to the parson , and doth not say , that it was due to the parson ; and if he pay the vicars tithes to the parson , he doth wrong to the vicar ; he saith , that he hath paid , and used to pay d. to the parson in full satisfaction , &c. and redd●ndo singula sing●lis ▪ it is good enough . as to the doublenesse or repugnancy of the prescription , he said , that the prescription is set forth according to the truth of the matter . as to the place , for that , no issue can be taken upon it ; he answered , that he conceived the issue will bee upon the custome or modus decimandi . and gawdy justice agreed to that . suit justice , there is no modus decimandi alledged ; for when he saith , that he hath paid to the parson that which the vicar demands , that is no answer . gaud● justice , the prescription is repugnant , as cook said ; and he said , that the herbage is for all kine , as well for those which have calves , as those which have not . no prohibition granted . mich. , . eliz. in the kings bench. . windsmore and hulbord's case . the case was this . a man gave lands to j. s. habendum to him , and to three other for their lives , ●t eorum diutius viventi successivè : the question was , what estate j. s. had : and if after his life there were any occupancy in the case ? cooke , that j. s. had an estate but for his life onely , because he cannot have an estate for his life , and for the life of another , where the interest commenceth both in praesenti : but he may have an estate for his own life in present interest , and the remainder thereof for anothers life : but this habendum by no means can create a remainder . and he said , that as a lease to one for life , habendum to him & primog●nito filio suo , was no remainder primogenito filio ( although some held to the contrary . ) so a lease for years , habendum to him and to another , was no remainder to the other . also the word successivè doth not make a remainder , as . h. . br. joyn●ts . where a lease for life to three , or for yeers to three , habendum successivè ; yet they have a joynt estate : and successivè is void : for he said , it is uncertain who shall have it first , and who secondly . also one cannot have an estate for his own life , and for the life of another at the same time in present interest ; for the greater will drown the lesser : but if the greater be in praesenti , and the lesse in futuro , as a lease for his own life , the remainder to him for another mans life , it is otherwise . as a lease for his own life , the remainder for yeers , is good . but if i make a lease to you for your own life , and years , both to begin at the same time , the lease for yeers is drowned : and an estate for his own life is greater then an estate for anothers life , and shall drown the estate for anothers life . vide . e. . surr. . where tenant for life of a manor did surrender to tenant for life in reversion . and . h. . . and perkins . that if there be a lease for life to one , the remainder to another for life , and the lessee for life doth surrender to him in the remainder , it is good . so dyers reports . a lease is made to one for the term of another mans life , without impeachment of waste , the remainder to him for his own life ; he is now punishable for waste , for the first estate is surrendred . gaudy justice , if a lease be made to one for his life , and so long as another man shall live , quaere what estate he hath . . if there can be any occupancy in the case : for if the estate be void , the limitation upon the estate is void : therefore if the estate for the other mans life be drowned in the estate for his own life , that can be no occupancy . also the occupancy is pleaded , that such a one entred , and doth not say , claiming as occupant . for if one come hawking upon the land , he shall not by such entry be an occupant ; and in the book of entries it is pleaded that he entred clayming as occupant . clenche justice , every occupancy ought to be in possession ; for otherwise the law casts the interest of it upon him in the reversion . but gaudy and suit justices were utterly against him in that ; for then they said , there should be no occupancy , if the party were not in by lease , or such like means . mich. , . eliz. in the kings bench. . dike and dunston's case . in an action of trespasse brought , the defendant did justifie as lessee to the lord mountagu , and said , that the lord mountagu for him and his farmors , had used to have a way over the land in which the trespass is supposed to be done : and that by rooting of a cart wheel the way was so digged and drowned , that he could not so wel use his way as before , and that therefore he did fill up the cart roots , and digged a trench to let out the water : upon which the plaintiffe did demur in law : for . h. . is , that a commoner cannot meddle with the soil : so is . & . h. . so he who hath warren in the land of another man cannot meddle with the soile : and as to that , that he could not use his way so well as before , it is not good : for he ought to have said , that he could not use his way at all : otherwise the plea is not good . as . e. . one is to lop his tree , and he cannot do it unless it fall upon the land of another , there he may well justifie the felling of it upon the others land , because otherwise he could not lop it at all . so if i give to one all the fish in my pond , he cannot dig a trench to draw out the water , unlesse he cannot otherwise take the fish , as with nets , &c. also he justifies , by reason that the lord mountagu for him and his farmors , &c. and he was a lessee and paid no rent , therefore no farmor . cowper contrary , he shall not have an action of trespass , for it is no losse or hinderance unto him , but it is for his profit , for the land is the worse being drowned with water . if a man do disseise me , and fells trees upon the land , and doth repair the houses ; in an assize brought against him , the same shall be recowped in damages ; because that which was done was for his commodity : also it is incident to one who hath a way for to mend it . all prescriptions at the first did begin by grants . and if one grant to me his trees , the law saith , that i may come upon the land to fell them and carry them away off from the land , and i shall not be a trespassor : and by . e. . and perkins , if one grant to me liberty to lay a conduit pipe in his land , i may afterwards mend it toties quoties it shall want mending . e. . if one grant to me a way , if he will interrupt me in it , i may resist him ; and if he dig trenches in the way to my hinderance in my way , i may fill them up again : the books of & . h. . are not adjudged . if lessee for years be of a meadow , he may dig to avoid the water , and may justifie so doing in waste brought against him . but it was said , that in that case the lessee hath an interest in the soil ; so hath not he who claims the way in this case . clenche justice held , that he could not dig the soile . then the defendant demanded , what remedy he should have . suit justice , if he went that way before in his shooes , let him now pluck on his boots . gawdy , the pleading is not good , for he saith , that he could not use his way so well as before , which is not good ; but he ought to plead , that he could not use the way at all . mich. , . eliz. in the kings bench. in an ejectione firme the party ought to set forth the number of the acres ; for although he give a name to the close , as green close , or the like , it is not sufficient ; because an habere facias seisinam shall be awarded : but in trespasse the same may be quare clausum suum fregit , &c. without naming the number of the acres : and so it was said it was adjudged in a shropshire case . mich. , . eliz. in the kings bench. . in an action upon the case , because that the defendant had made a gate in one towne , for which he could not go to his close in another town . cook took exception that the writ was vi & armis ; and it was agreed per curiam , that for that cause it was not good : also the visne was of one towne only , whereas it should have been of both ; for he said , that in hankford and russels case , the nusance was laid in one town per quod his mill in another town could not grinde ; and upon not guilty pleaded , the visne came from one town only , and it was adjudged , that it was not good . mich. , . eliz. in the king bench. john joyce's case . an action upon the case was brought against john joyce , inn-keeper of the bell at maidstone in kent , for not scowring of a ditch which ran betwixt the house of the said john joyce and of another man ; and judgement was given for the plaintiffe against the defendant joyce , and a writ of error was brought to reverse the judgement , and divers errors were assigned . the first error which was assigned was , that the plaintiffe doth prescribe , that all the inhabitants of the bell &c. had used to scowre the gutter , &c. and it was said , that that was no good forme of prescription , as in . h. . . br. pres●ription . where the plaintiffe said , that the defendant , & omnes alii tenuram illam priushabentes , mundare debuere & consuevere talem fossatam ; and therefore the writ was abated , for it ought to have been quod ipsi & praedecessores sui de tempere cujus contrarium , &c. or that such a one and his ancestors or predecessors , whose estate the defendant hath , &c. also if a copy-holder prescribe , that he and all his tenants tenementi praedict ' have used to have estovers in such a wood , &c. it is not good : but he ought to prescribe in the manor . the second error was , that the prescription was uncertain , for it is , that all tenants , &c. which extendeth to tenants in fee , in taile , for life , or years ; and the prescription is the foundation and ground of the action , and therefore it ought to be certain : as if one make title for entry for mortmaine , he ought to shew that he hath entred within the year and day . . e. . br. prescription . it is holden , that tenant for years or at will cannot prescribe for common ; for the prescription ought to be alledged in the tenant of the free hold : or to alledge a corporation , or the like : in reason , tenant for years cannot prescribe , for his estate hath a certain beginning , and a certain end , therefore it is not of long continuance . the third error was , that the plaintiffe hath not alledged , that the defendant was tenant at the time of the action brought , as in the case of clerkenwell and black-fri●rs ; where the plaintiffe brought his action upon the case , for that the defendant had turned the course of the water of a conduit pipe , and the declaration was , quod cum querens seis●●us existat , and doth not say existitit ; and so the plaintiffe was not supposed owner of the scite and messuage of black-friers , but only at the time of the action brought , and not at the time of the diversion of the water : but judgement was given , and error brought upon it . the fourth error was , because it was for scowring a gutter betwixt the houses , &c. and doth not say , that the house was contigue adjacens to his house . . h. . where cattell escape into the plaintiffs close , and thereupon trespasse brought , the defendant said , that it was for want of fence of the plaintiffs close , and it was holden no plea , if he do not say that the plaintiffes close was adjacens . clench justice . the prescription ought to be , that such a one , and all those whose estate he hath , &c. have used for them and their farmors to repair the gutter . cowper . when the prescription runs with the land , then he may prescribe in the land , as all those who have holden such lands , have used to scowre such a ditch , and the same is good . gawdy justice . if he had said , all those who had occupied such a house , had used to scowre , it had been good . godfrey , if a man will alledge a prescription or custome , he ought to set forth , that it was put in use within time of memory . in the prescription of gavelkind , the party ought to shew , that the land is partable , and so hath been parted . also he prescribed that omn●● illi qui tenuerunt , and doth not alledge a seisin , but by way of argument . suit justice held the pleading not good , because the words were not contigue adjacens . and for these causes the first judgment was reversed . mich. , . eliz. in the kings bench. gomersall and gomersalls case . in an action of account the plaintiffe charged the defendant as bailiffe of his shop , curam habens & administrationem b●norum . the defendant answered as to the goods only , and said nothing to the shop . and tanfield moved the same for error in arrest or judgment , as . h. . . one charged another as bailiffe of his house , & cu●am habens bonorum in ●●●existentium , the traverse was , that he was not balivus of the house prout : that is good , and goeth to all ; but he cannot answer to the goods , and say nothing to the house . so . e. . . br. accompt . . a man brought an account against the bailiffe of his manor habens curam of twenty oxen and cowes , and certain quarters of corne. and by belknap , if he have the manor and no goods , yet he shall account for the manor , and it shall be no plea to say , that the plaintiffe sold him the goods without traversing , without that , that he was his bailiffe to render account ; and as to the manor , he may say , that the plaintiffe leased the same to him for years , without that , that he was his bailiffe . and he took another exception , that the plaintiffe chargeth him with monies ad merchandizandum ; and he traverseth that he was not his receiver denariorum ad computandum prout . and so he doth not meet with the plaintiffe , and so it is no issue ; and if it be no issue , it is not helped by the statute of jeofailes , . h. . but mis-joyning of issue is helped by that statute . . eliz. w. atturney of the common pleas did charge another atturney of the same pleas with a covenant to have three years board in marriage with the defendants daughter ; and he pleaded , that he did not promise two years board , and so issue was joyned and tryed ; and the same could not be helped by the statute , because it was no issue , and did not meet with the plaintiffe . so if one charge one with debet & detinet , and he answer to the debet only , it is no issue , and therefore it is not helped . in . h. . in trespasse for entring into his house and taking of his goods , the defendant pleaded non intravit , and the issue was tried , and damages given ; and because the taking of the goods was not also in issue , all was void , . e. . one shall not account by parcells , because the action is entire . vid. . e. . . acc . lib. deut. . a president . h . that the verdict was not full , and did not go to the whole , and therefore was not good . hel● contrary . and he said , as to the first , that there is a case . e. . accompt . where the plaintiffe chargeth the defendant in account as bailiffe of his house , and that he had administration of his goods , viz. forty sacks of wool : and the jury found that he was not bailiffe or his house , but they found that he had received the sacks of wooll to render account &c. and he had judgement for the goods , although it was not found for the house . vide . h. . . a. where if a jury be charged with several issue , and the one is found , and the other not , it makes no discontinuance ; or if one be discontinued , yet it is no discontinuance of the whole . but if the same be not helped by the common law , yet it is helped by the statute of . h. . which sayes , non obstante discontinuance or miscontinuance . daniel ad idem . and he said , that the books before of . h. . and . e. . were not ruled ; in the one book , the defendant pleaded , that the plaintiff gave the goods to him ; in the other , that he sold them to him , and demanded judgement of the action ; and it is no good answer , for they are pleas only before the auditors , and not in an action of account ; and although the verdict be found for part only , yet it is good , for no damages are to be recovered in an account . in trespasse it is true , if one be found and not the other , and joint damages be given , the verdict is naught for all ; but if severall damages be given , it is good , as it is ruled in . h. . cook . h. . is , that he cannot declare generally of an house , curam habens & administrationem bonorum ; but he ought further to say , viz. twenty quarters of corn , and the like , &c. in the principal case it is a joint charge , and one charge for the shop and goods , and he answers unto one only ; but he ought to answer to all ; or else it is no answer at all : see . e. . . but cook found another thing , scil . that there is thing put in issue which is not in the verdict , nor found , nor touched in the verdict ; and that makes all that which is found , not good , and that is not helped by any statute . i grant that discontinuances are helped by the statute of . h. . of jeofailes , but imperfections in verdicts are not helped . it was a great case argued upon a writ of error in the exchequer chamber ; and it was 〈◊〉 case . an information was against brache for entring into a house and one hundred acres of land in stepney ; he pleaded , not guilty ; the jury found him guilty for the one hundred acres , and said nothing for the house ; upon which error was brought , and the judgement reversed ; and he said , that it was not a discontinuance ; but no verdict for part . daniel that was the fault of the clark , who did not enter it ; and it hath been the usge to amend the default of the clark in another terme . all the justices said , true , if the postea be in , and not entred : but here it is entred in the roll in this forme . daniel , where i charge one in accompt with so much by the hands of such a one , and with so much by thehands of such a one ; although there be one absque hoc to them all , yet they are severall issues . the court answered , not so , unlesse there be severall issue joyned to every one of them . but by gaudy justice , if there be severall issues , yet if one be found and the other not , no judgement shall be given . clenche justice , it is not a charge of the goods , but in respect of the shop , therefore that ought to be traversed . suit justice , the traverse of the shop alone is not good . the queens solicitor said , that the books might be reconciled , and that there needed not a traverse to the goods , for the traverse of the shop prout answers to all : but now he charges him as bailiffe of his shop and goods , and he takes issue upon the goods only , which issue is not warranted by the declaration . and he said , that if one charge me as bailiffe of his goods ad merchandizandum , i shall answer for the encrease , and shall be punished for my negligence . but if he charge me as his receiver , ad computandum , i shall not be answerable but for the bare money , or thing which was delivered . mich. , . eliz. in the king 's bench. gile's case . a writ of error was brought to reverse a judgement given in an action upon the case . the action upon the case was brought against one , quare exaltavit stagnum , per quod suum pratum fuit inundatum ; and he pleaded not guilty ; and the jury found quod erexit stagnum ; and if errectio be exaltatio , then the jury find , that the defendant is guilty ; and thereupon judgement was given for the plaintiffe . glanvile alledged the generall error , that judgement was given for the plaintiffe , where it ought to have been given for the defendant . and he said , that erigere stagnum , est de novo facere : exaltare , est erectum majoris altitudinis facere ; deexaltare is ad pristinam altitudinem adducere : prosternere stagnum , est penitus tollere . and the precise and apt word according to his case , in an action upon the case , ought to be observed ; that he may have judgement according to his damage and his complaint , viz. either deexaltare or posternere , &c. . e. . . an assize of nusans , quare exaltavit stagnum ad nocumentum liberi tenementi sui ; the defendant pleaded , that he had not inhaunced it after it was first levyed . and by trew , there is not any other writ in the chancery , but quare exaltavit stagnum . herle said , that he might have a writ quare levavit stagnum ; and there by that book levare stagnum , & exaltare stagnum do differ : and therefore he conceived , that the writ should abate , for using one word for another , . e. . . nusans . by chauntrell . in a writ of nusans quare levavit , if it be found that it was tortiously levied , the whole shall be destroyed : but in a writ quare exaltavit , nothing shall be pulled down if it be found for the plaintiffe , but the inhauncing shall be abated only : so . ass . . br. nusans . the same case and difference is put , and . e. . fitz. nusans . if the nusans be found in any other forme then the plaintiffe hath supposed , he shall not recover . and in . e. . . br. nusans . the writ was quare divertit cursum aquae : &c. and shewed that he had put piles and such things in the water , by which the course of the water was streitned ; wherefore , because he might have had a writ quare coarctavit cursum qquae , the writ was holden not to be good . cook took another exception , viz. that the assize of nusans ought to be against the tenant of the free-hold , and therefore it cannot be ( as it was here ) brought against the workmen , and it is not shewed here , that the defendant was tenant of the soil ; for . h. . . by moile , if a way be streitned and impaired , an action upon the case ; lieth ; but if it be altogether stop'd , an assize of nusans lieth . but prisoit said , if the stopping be by the terr-tenant , an assize of nusans lieth ; but if it be by a stranger , then an action upon the case ; but for common nusanses no action lieth , but they ought to be presented in the leet or turne . drew , we have shewed that he who brought the assize of nusans hath a free-hold in the land ; and if the tenant be named , it is sufficient , although it be not shewed that he is tenant of the free-hold . and to that , all the justices seemed to incline . but then it was shewed to the court , that one of the plaintiffes in the writ of error had released . and if that should bar his companions , was another question ? and it was holden , that the writ of error shall follow the nature of the first action ; and that summons and severance lieth in an assize of nusans ; and therefore it was holden , that it did the like in this action ; therefore the release of the one was the release of the other . but then it was asked by glanvile , what should become of the damages , which were entire ? note , pasch . . eliz. the case was moved again , and drew held exaltare and erigere all one ; and that erigere is not de novo facere , for that is levare . but the justices were against him , who all held , that erigere is de novo facere , and exaltare is in majorem altitudinem attollere , and at length the judgment was affirmed , that erectio and exaltatio were all one : for the chief justice had turned all his companions when he came to be of opinion , that it was all one . and so the case passed against glanviles client . mich. , . eliz. in the kings bench. the lady gresham was indicted for stopping the high-way ; and the indictment was not laid to be contra pacem . and cook said , that for a mis-feasance it ought to be contra pacem ; but for a non-feasance of a thing , it was otherwise ; and the indictment was for setting up a gate in osterly park : and exception also was taken to the indictment for want of addition ; for vidus was no addition of the lady gresham ; and also vi & armis was left out of the indictment : and for these causes she was discharged , and the indictment quashed . mich. , . eliz. in the king 's bench. . in an ejectione firme , exception was taken because the plaintiffe in his declaration did not say , extratenet : for in every case where a man is to recover a possession , he ought to say , extra tenet . and in debt he ought to say , debet & d●tinet : and in a replevin , averia cepit , & injustè detinet . but all the justices agreed , that in an ejectione firme those words were not materiall : for if the defendant do put out the plaintiff , it is sufficient to maintain this action . and kempe secondary , said , that so were all the ancient presidents ; although of late times it hath been used to say in the declaration , extra tenet : and the declaration was holden to be good without those words . mich. , . eliz. in the king 's bench. in a case for tithes , the defendant did prescribe to pay but ob . q for the tithes of all willows cut down by him in such a parish . cooke , it is no good prescription ; for thereby , if he cut down all the willows of other men also , but ob . q. should be paid for them all . but he ought to have prescribed for all willows cut down upon his own land , and then it had been good : but as the prescription is , it is unreasonable ; and of that opinion was the whole court. mich. , . eliz. in the king 's bench. deighton and clark's case . in an action of debt upon a bond , the condition of the bond was , that whereas the plaintiff was in possession of such lands , if i. s. nor i. d. nor i. g. did disturb him by any indirect means , but by due course of law , that then , &c. the defendant pleaded , that nec i s. nec i. d. nec i. g. did disturb him by any indirect means , but by due course of law. godfrey , the plea in bar is not good : for it is a negative pregnans , viz. such a negative which implyes an affirmative , which yet seems to be repugnant to a negative , as in . h. . . in a writ of entrie , the defendant pleaded the deed of the demandant after the darrein continuance : the demandant said , it was not his deed after the darrein continuance : and that was holden a negative pregnans : wherefore he was compelled to plead and say , he made it by dures , before the darrein continuance such a day , absque hoc , that he made it after the darrein continuance , and then issue was taken upon it . the same case is in . h . . but there it is said , that in debt upon a bond to perform an arbitrement , non fecerunt arbitrementum per diem is no negative pregnans : the same law , that non deliberavit arbitrium in script . . h . in formedon ne dona pas in taile is a negative pregnans . vide h. . the case of the dean and chapter . the second exception was , that he hath pleaded neque such , nor such , nor such had disturbed him by any indirect means , but onely by due course of law : and that cannot be tryed , neither by jury , nor by the judges . not by the jury ; because it is not to be put to them , whether they had disturbed him by indirect means , or by due course of law : for they shall not take upon them the construction , what is an indirect means , and what is the due course of law ; for it appertaineth to the justices to adjudg that . not by the judges , because hee hath not put it certain , that it was a due course of law by which he disturbed him . as . e. . . in debt upon a bond , the defendant saith , that it is upon condition , that if the defendant , or any for him , came to bristow such a day , and there shewed to the plaintiff or his councell a sufficient discharge of an annuity of forty shillings per annum , which the plaintiff claims out of two messuages of the defendant in d , that then , &c. the defendant said , that a. and b. by the assignement of the defendant , came the same day to bristow , and tendered to shew to n ▪ and w. of the plaintiffs councell , a sufficient discharge of the annuity , and that they did refuse to see it , and demanded judgment of the action . the plaintiff did demur upon the plea. and after a long argument , it was adjudged by all the justices to be no plea , &c. because it lay in the judgment of the court to judg of it : and he did not shew in certain , what discharge he tendered , as a release . unitie of possession , &c. if a man be bound to plead a sufficient plea before such a day , in debt upon such a bond ; it is no plea to say , that he hath pleaded a sufficient plea before the day ; but hee ought to shew what plea he hath pleaded : for the court cannot tell whether it be a sufficient plea or not , if it do not appear what manner of plea it is . h. . . the condition of a bond was , that where the plaintiff was indebted to j. s. in one hundred pounds ; if the defendant acquit and discharge the plaintiffe , that then , &c. the defendant pleaded , that hee had discharged him &c. and the plaintiffe did demurre upon the plea , because hee did not shew how ; and it was holden no good plea. so . h. . br. condition . per curiam in the kings bench ; where a man pleaded , that he had saved him harmlesse ; it was no plea , without shewing how , because he pleaded in the affirmative ; contrary , if he had pleaded in the negative , as non damnificatus est . suit and clenche justices said , that if he had pleaded , that he was not disturbed by any indirect means , it had been good enough . gaudy , if he had said , that he was not disturbed contra formam conditionis praedict ' , it had been good ; as upon a pleading of a statute , ne entra pas contra formam statuti . clench , if i be bound to suffer i. s. to have my house , but not i. d. i ought to answer , that i have suffered the one , and not the other to have it . suit justice , they are both severall issues , and one shall not be repugnant to the other . mich. , eliz. in the kings bench. sturgie's case . a case was moved upon the statute of . eliz. cap. . the case ( as i conceive ) was thus : grandfather , father and daughter ; land descended from the grandfather to the father , who made a lease for one hundred years ; the father died , and the daughter forged a will of the grandfather , by which he gave the land to the father for life , the remainder to the daughter in fee ; and the same was forged to have avoided an execution of a statute staple , the lease being defeated ; and if it were within the statute of . eliz. was the question . solicitor , that it was within the statute , and within the first branch ; viz. if any shall forge any deed , &c. to the intent that the estate of free-hold , or inheritance of any person , &c. in or to any lands , tenements , or hereditaments , freehold or copyhold , or the right title or interest of any &c. of , in , or to the same , or any of them ; shall or may be molested , &c. lessee for years hath a title , hath an interest , hath a right ; therefore within the words of the statute ; and those words shall be referred to the words lands , tenements , &c. but cook said , they shall be referred to the words precedent , viz. estate of freehold or inheritance ; and then a lease for years is not within them . also by the solicitor , a testament in writing is within the words of the statute , and therefore he recited a clause in the end of the statute ; viz. and if any person plead , publish , or shew forth , &c. to the intent to have or claime thereby any estate of inheritance , freehold , or lease for years : and also he said a statute staple is an estate for years , although it be not a lease for years , because it is not certain . cook. if she should be within both branches , then she should be twice punished , which law will not suffer . and the statute is , whereby any estate for years shall be claimed ; and she would not claim , but defeat an estate for years ; and a statute staple is not a lease for years ; and the statute is not to be taken by equity , because it is a penall law. solicitor , when the statute is extended , then it is an estate for years , although it be uncertain . if a man forge a lease for years , it is directly within the statute . but if a man have a lease , and another is forged to defeat it , it is a question whether it be within the statute : and all the doubt of this case is upon the reference of these words , right , title , interest : and it was adjourned . mich. , . eliz. in the kings bench. the vicar of pancras case was argued again by godfrey : and he said , that no plea shall be allowed in the ecclesiasticall court which tends in discharge of tithes : and to prove that , he cited . e. . . br. tithes . and a case in . & . e. . dier . d. but admit the plea should be allowed in the ecclesiasticall court ( as many of the doctors have certified the justices ) yet because the modus decimandi is a thing pertaining to the common law , the prohibition will lie . by fitz. herb. and the register , if a parson grant to one of his parishoners , that he shall be discharged of tithes , he may peradventure plead the same in the spirituall court , yet there is good cause that a prohibition do lie : so . e. . . br. prohibition . the abbot of saint albans kept the wife of i. s. in his house two houres against her will , to have made her his harlot , and the husband spake of it ; for which cause the abbot sued him for slander in the spirituall court ; and because the husband for that act might have a false imprisonment , therefore a prohibition was granted so if i swear to pay i. s. ● . and he sues for it in the spirituall court , a prohibition lieth ; for hee may have an action of debt in the common law for it ; for where the common law may have jurisdiction , there the spirituall court shall not intermeddle with the matter . so if an abbot rob i. s. and he speaks of it , and the abbot sues him in the spirituall court , a prohibtion will lie . he said further , that the case was betwixt the vicar and a parishoner , and therefore one of them a temporall person . if the suit be betwixt the farmer of the parson and another , a prohibition shall be granted . also he said , the right of the tithes doth not come in question , but only the modus dicimandi . c●●k . the modus decimandi doth not come in question there , therfore it cannot be traversed ; for if it be due to the parson , that is the question , as in . e. , . in a replevin , the defendant saith , that the place where &c. is ancient demesne , and pleads to the jurisdiction ; char l' , that is a trespasse , and personall action , and therefore it is no plea ; and yet it was agreed by the court to be a good plea : for by the avowry , the realty might come in debate in the replevin , atkins , if there be contention de jure decimarum originum , habens de jur● patronatus , tunc spectat ac legem civilem . and in this case , it was said , that de mero jure , the parson is to have all the tythes , if there be not any endowment of the vicarage . mich. , . eliz. in the kings bench. . megod's ▪ case . the case was , that a feoffment was made unto another man , ad eam intentionem , that he should convey the same to such a one , to whom he sold it ; and he sold the same to another , and did refuse to convey it , and therefore the other brought an action upon the case . and gaudy justice held , that the action would lie . but suit justice held the contrary . wray chiefe justice did agree with gaudy : for he said , it was a trust , that he should assure it to another . and it is a good consideration in the chancery : the conveyance of a trust , and thereupon , an action upon the case will lie . mich. & eliz. in the kings bench. . altham of grays-inne , took many exceptions to an indictment of murder . the first was , because the indictment said , quod capta fuit inquisitio coram coronatore in comitatu , &c. and doth not say , de comitatu . and a crowner in a county is a crowner in every county in england , as it is holden , . h. . . b. also de and in do much differ , as in . e. . . where a scire facias was brought against the master and scholers beatae mariae , & sancti nicholai in cantabrigia , where the foundation was de cantabrigia , and not in cantabri●gia , and the writ was abated ; for there is a difference betwixt [ in ] and [ de . ] for a thing may be [ in ] and not [ of , ] as saint sepulchres is in london , but not of london . a second exception was , because it said , inquisitio capta per sacramentum , &c. and did not say , jurati ; and therefore the partie is not charged upon it ; and by . e. . if jury be charged upon one , and they find another felon , it is void ; because they were not charged upon him . and . r. . . by hassey . if in assize the record be such , viz. quod jurati exacti comperuerunt , quorum . supra sacramentum suum dicunt , and give their verdict , if it doth not say , quorum . electi & jurati , it is errour . for it doth not say in facto , that they were sworn , and yet it is implyed by the words sacramentum suum , that they were sworn . the third exception was , that it doth not say , that he was in pace dei , & dict' dominae reginae ; for it might be that the partie was a traitour , and that he was flying , and in such case he might justifie the killing of him ; and perhaps also it was se defendendo ; therefore those words are very necessary . an other exception was , because the indictment is , percussi● , and it is not said , ex malitia praecogitata , for so an indictment of murder ought to be , as in . e. . the indictment was , quod cepit & abduxit fel●nicè , where it ought to have said , felonicè cepit & abduxit ; and therefore it did abate . a fifth exception was , because it saith , ●t dedit ei plagam mortalem ; and doth not say , cum gladio p●aedicto . and in the statute de coronatore , there is a charge given him , that hee finde what weapon it was which gave the stroke . see the statute of . e. . rastall coroners . . the sixth exception was , that the indictment was , that the pan of the knee was cut out , and it doth not shew , the length , depth , and breadth of the wound : he granted that if one single member be cut off , it is not necessary to shew the breadth , &c. but here was no amputation of any member , nor a cutting off , but the cutting of the pan of the knee . sa●g to the same purpose , and he finds there is a great difference betwixt cut off , and cut out . and he said , that as to that which the solicitour hath answered unto , to the difference of [ in ] and [ de , ] viz. that it is all one , as if i grant a thing percipiena ' de man●rio , or in maneri● , that is all one . to that he answered , that that cannot be ; and in w●mbish●s case , in plo. co● . . the same exception was taken in a writ . but in our case , he said , it is an indictment , which is favoured , because the life is in question . and he took another exception , because that the indictment saies ▪ tempore feloniae & murdredi praedict ' , and there is no such word murdredum : to that the sollicitour said , that it was in equall degree , murdum and murdredum , for none of them are found amongst the latinists . snag said , what then ? yet one is a word which is received in the law , and is vox artis , but the other not ; and therefore it is not in the same degree . also he said , that when the indictment comes to the accessories , it said , felonicè praesentes , abb●ttentes , & assistentes : and felonicè cannot be applied to ( praesente● . ) also when it comes to the accessories , it doth not say , ex malitia praecogitata abbet●entes & assistentes , &c. cook contrary ; and he said , that if indictments have sufficient substance , they are not to be overthrown for trifles : as to the first he said , if you will have it to be ( coram coronatore de comitatu , ) perhaps it was a liberty ; and then coram coronatore of the liberty , cannot be coram coronatore of the county . gaudy justice said , that was no answer . but as to this point , the justices desired that presidents might be searched ; and said , that they would follow the greater number of them . clenche , if one say , that such a one is a justice of peace in hertfordshire ; it is all one , as if he had said a justice of peace of hertfordshire . as to the d. jurati , that is no exception ; for it is true , that it must be so in an assize , but not in an indictment : also no president can be shewed , where ex malitia propensa sua shall be applied to every word , when it runs in sense to all by conjunctions copulative . as to the exception , that there ought to be the length , breadth , &c. kempe the secondary said , that it was not worth the standing upon : and as to the word murdredi , if it had been left out , the indictment had been sufficient , and that shall not make the indictment void ; for if it be left out , it doth no hurt to it : for if many come together to make an assault , ex malitia praecogitata ; and one of them onely strikes the partie mortally , and he dieth , it is murder in them all . and that was doctor ellis case in the commentaries ; and the indictment needs not say , that they were praesentes , abbettantes & auxiliantes : and as to the word felonicè , it goes to all the words , although not particularly applied . note , all the justices did incline that the indictment was good notwithstanding the exceptions ; but yet they said , they would advise of it , and look upon presidents . mich. , . eliz. in the king 's bench. . a writ of error was brought against two , upon a recovery in a precipe quod reddat , &c. and one of them died . the question was , whether the writ should abate ? cook moved , that it might not abate ; for he said , that the writ of error is but a commission for to examine the record , and the partie shall recover nothing therby , but shall be onely discharged from the first recovery : and he said , it is not like unto a precipe . then the justices demanded of him , if the recovery were in a reall action ; and he said , that it was : then they said , that . h. . . is , that if error be brought upon a recovery in a personall action , that death shall not abate the writ ; but otherwise , if it were upon a reall action : for there the judgement shall be , that he shall be restored to the land. quere . mich. , . eliz. in the king 's bench. an appeal of mayheme was , that percussit super manum dextram viz. inter manum dextram & brachium dextrum . and exception was taken to it , that it was repugnant ; for if it was inter brachium & manum dextram ; therefore it could not be super manum dextram ; for the word [ inter ] excludes both . cook. it is certain enough , because it saith , super manum dextram , and an indictment shall not abate for forme , if it be sufficient in substance of matter ; and also being upon the wrist , it was upon the rising of the hand . mich. , eliz. in the kings bench. a man made a lease for years , rendring rent at the feast of saint michael th'arch-angel ; and if it were behind by ten days after , being in the mean time lawfully demanded , and no sufficient distresse to be found upon the land , that then it might be lawfull for the lessor to re-enter . the last of the ten dayes at the hour of two afternoon the rent was demanded , and there was a sufficient distresse upon the land before the demand , but not after ; and whether the lessor might enter or not ? was the question . daniel , these words [ sufficient distresse ] ought to be referred to the time of the demand , viz. to the last instant , at which time the demand is only materiall : upon a cessavit , if there be a sufficient distresse , the last instant of the two years , it is sufficient . clenche justice held , that there ought to be a sufficient distresse upon the land for all the ten dayes . but suit justice held . that it was sufficient if there were a distresse for a reasonable time , so as it might be presumed , that the lessor might have knowledge of it . but if a distresse be put upon the land only for an hour , or by nights , he held it was not a sufficient distresse . mich. , . eliz. in the kings bench. sir edward hobbye's case . in this case the question was , whether the death of one of the defendants , should abate the whole writ of error . cook , the writ shall not abate , for no defendant is to be named in the writ ; which see in the forme of the writ of error ; and r. . . it is holden , that the writ shall not abate , for it is in its nature but a certiorari , and judgement only is to be reversed . atkins , although that the defendants have not day in court by the writ of error , yet by the scire facias which is sued upon it , as in our case it is , they have day ; and see . h. . and . h. . a difference , where it is a writ of error upon a reall action , and where upon a personall . cook. that holds , where the first writ is abated , and so is . h. . see the case a little before , gaudy and clench justices , bring a new writ of error for that is the surest way . mich. , . eliz. in the king 's bench. lovell and golston's case . in a writ of error brought upon a record removed out of the court of kingston , where the first judgement was given in an action of debt for an amercement in a court baron : the first error which was assigned , was , that he in the action of debt did declare , that whereas at a court holden before william fleetwood steward , &c. whereas it ought to have been holden before the suitors , for they are the judges . the second error was , that the presentment upon which the amercement is grounded , saith , that golston the defendant had cut down more trees quam debuit , extra boscum domini . . that it is repugnant ; for he could not cut wood extra boscum , but in b●sco . . when it saith many , and doth not shew what trees , nor how many he might cut , and that he hath cut down more then he ought , and also he doth not shew when the cutting of them was . vide . e. . by prescription they may prescribe to hold a court before the steward ; but if there be no custome or prescription to warrant it , then as . h. . is , it is coram senescalio , & sectatoribus . gaudy , every court baron is to be holden before the suitors , if there be no prescription to the contrary : but a leet alwayes before the steward . the action of debt was upon the presentment ; and the error is brought upon the defects in the presentment ; for if that be not good , all is naught . notwithstanding it was said by one at the bar , that the forme of pleading in the book of entries is , that the court was holden before the steward , if the action be for debt or trespass for amercements or such personall things : but if the action be brought for reall things , then it is before the suitors . but notwithstanding that , the judgement for the causes aforesaid was reversed . mich. , . eliz. in the kings bench. barker and fletwel's case . barker of ipswich brought an action of covenant against the assignee of his lessee for years , one fletwell . and set forth , that whereas he had made a lease for years reserving rent , with re-entry for non-payment of the rent ; and that the lessee did covenant to build a house upon the land within the first ten years ; and that he assigned over his terme : and he brought the action against the assignee , who pleaded , that the lessor did enter , and had the possession for part of the ninth year ; and if thereby the covenant were discharged , was the demurrer in law. godfrey , who argued for the lessor , said , that by this entrie of the lessor , the covenant was not suspended . as . e. . by. extinguishment . the abbot of d. did grant to w. s. a corrodie ; viz. so much bread , &c. for the term of his life , faciend ' talia servitia prout j. n. & alii usi sunt focere ; the grantee leased back again the corrodie unto the abbot for . years , rendring ● . rent per annum , and he brought debt for the rent ; and the abbot said , that he did not the services ; and the grantee said , that he was not bound to do them , for that by the lease the corrodie was suspended : and it was holden , that it was not suspended . godf●●y held the reason to be , because that the service is a collaterall thing : and therefore he said , he ought to do it , notwithstanding that the abbot had the corrodie : so in . h. . . br. conditions . where tenant in taile makes a feoffment in fee , and takes back an estate in fee , and afterwards was bounden in a statute merchant , and then made a feoffment in fee upon condition , and died , his issue within age , who enters for the condition broken ; he was remitted notwithstanding that execution upon the statute was sued against the father in his life . so if lease be made of a manor , except herriots , fines , and amercements ; and that the lessee shall collect them during the term , although that the lessor entreth , yet the lessee ought to collect them during the term . also he pleades here , that barker did enter , and that generall pleading is doubtfull ; and the plea shall be taken strictly against him that pleadeth it ; and it may be that he entred by wrong ; and so it may be that he entred by right , viz. for not payment of the rent , as in truth his entry was : and if barker did enter lawfully , then it was no suspension or extinguishment of the covenant : as . r. . if lessee for life commit waste , and afterwards alieneth , and the lessor entreth for the alienation , yet after his entry he shall have an action of waste against the lessee : so . h. . . waste . but with this difference , if the lessor enter wrongfully , there , although waste be done before , he shall not have waste to punish it ; but otherwise if he enter for the forfeiture done by the tenant . also if the covenant was suspended , it was only for the time that the lessor had the possession , and the party hath not answered for the time before or after . as . h. . if one be bound to find a chaplain to say divine service within such a chappel , and the chappel fall down , it is a good excuse for the time ; but if it be built again , he must find a chaplain there . clarke contrary ; if lessee for years covenanteth to repair the houses , i grant that the same shall charge his assignee . but a collateral thing , ( as if the lessee covenant to pay such a sum in gross , or to enfeoffe him of the manor of d ) the same shall not charge the assignee ; no more shall a covenant to build a new house : but here it was said , that he had time to build it both before and after the entry of the lessor barker . to that he answered , not so ; for if he once disturbed , the covenant is destroyed . godfrey , this case was this terme in the common pleas. lessee for five years covenanted to build a mill within the terme ; and because he had not done it , the lessor brought an action of covenant , and the defendant pleaded , that within the last three years , the lessor forcibly held him out , &c. so as he could not build it ; and by the opinion of all the justices , he ought to plead , that the lessor with force held him out , otherwise it would be no plea. cook , as amicus curiae , vouched . h. . tit. barr. if one be bounden to enfeoffe me of such land before michaelmas , there the obliger in debt brought upon the bond , pleaded , that the obligee ( before the day ) had entred with force into the land , so as he could not enfeoffe him ; and there it was holden , that he ought to prove that he was holden out by force . gaudy , in the principall case he ought to have shewed , that he would not suffer him to build : and the other justices seemed to be of the same opinion ; but yet they said , that they would advise upon the case . mich. , . eliz. in the kings bench. owen took exception to a declaration in an ejectione firme , because it was à possessione sua ejecit ; where it ought to be , according to the supposal of the writ , quod à firma sua ejecit . also it was of three closes , naming them with a videlicet , containing , by estimation , . acres ; and that , he said , did contain no certainty ; where he ought to have alledged in fact , that they did contain so many acres . but it was holden by all the justices , that although he doth not put in the declaration the certainty of the acres ; if he give a certain name to them , as green-close , &c. that it is good . and as to the other exception , viz. ejecit à possessione [ inde ] , that the word [ inde ] had relation to the farme ; and shall be as much as if he had said , à possessione firmae ; and the declaration was ruled to be good , notwithstanding the exceptions . mich. , . eliz. in the kings bench. a man was indicted upon the statute of . elizab. of perjury , in a court leet ; and the indictment was , that hee at the court leet of the earle o● bathe , super sacramentum suum coram senescallo , &c. and exception was taken , because it said , at the leet of the earle of bathe , whereas every leet is the king's court , although that another hath the profit and commodity of it : and it was said , that the steward of a leet was an officer of record ; and also his oath was , if he had made any rescous or not , with which he was charged . drew , it is not within the statute of . eliz. for then it ought to be before a jury in giving of evidence , or upon some articles : but the court was clear of opinion against him . mich. , . eliz. in the kings bench. the earle of kent's case . the case was this , three severall persons did occupie three severall houses in brackley , to which another man had right ; and he who had right , went to one of the houses , and entred , and afterwards went away , leaving him who occupied the said house upon the land ; and then he entred into another of the houses , and then went from that , leaving him who occupied the same before , upon the land ; and then he entred into the third house , and there sealed a lease for years unto another man of that house , and naming the two other houses and the lessee brought an ejectione firme for the two houses in which the lease was not delivered , and the opinion of the court was against him , that he was barred in the action ; for the entrie or continuance of him who occupied the same before , did defeat the entrie of the plaintiffe or lessor ; and the plaintiffe was forced to be non-suit . mich. , . eliz. in the kings bench. smith and smith's case . one i. s. did assume and promise , that whereas i. n. was indebted to j. d in forty pounds by bond , that if j. d. ne implacitaret the said j. n. that if the money be not paid such a day , that j. s would pay it to j. d. the money was not paid : and after the day , j. d. brought an action upon the case , upon the promise , and shewed quod ipse non implecitavit , &c. kingsmill , he cannot have his action upon the case till j. n. be dead , for during his life there is a time in which he might implead him . as if i promise unto another , that if he will be nonsuit in his action , which he hath against a third person , that if he doth not pay the money before such a day , that then he will pay the money there ; if the day of payment be before the time that he can be non-suit , as before the terme beginneth , yet he cannot presently have his action before that he is non-suit . and therefore in the principall case he ought to shew ; that he hath discharged the other of the bond , and then the action lieth , for then he cannot implead him ; but as this case is pleaded , though he hath not yet impleaded pleaded him , yet in posterum he may implead him . clench justice , that is implied , that he will never implead him , and then he ought to shew the bond discharged . suit , that is not so : for if hereafter he sue him against his promise , then the other to whom the promise was made shall have his action upon the case , and shall recover to the value of the sum in the bond. mich. , . eliz. in the king 's bench. bilford and doddington's case . a writ of error was brought by richard bilford against robert doddington , to reverse a common recovery in the city of worcester , upon a writ of right patent : and for error it was assigned , . that no warrant of atturney was entred , but that such a one posuit loco suo w. h. and did not write the name at length , but in the plea roll it was at length . the second error was , that the writ was , de tribus messuagiis sive tenementis , and that doth containe no certainty , for [ sive ] is a word uncertaine . the third error : it was in the time philippi & mariae , and petit processum domini regis & reginae : and it was ●orundum regis , and that was in the default of voucher , that the recovery was had ; but if it were in the recovery , in which he did appear and plead , it was otherwise . the counsell of the other side , as to the first , said , that all the records of the city are of the same form , viz. that such a one po●uit loco suo w. h. &c. and if it were not good , they should be all overthrown and avoided ; and if it should be otherwise , it should be contrary to the ancient custome of the city . as to the second , quod petit processum corundum regis the same is the misrecitall of the clark ; for the writ upon which it is grounded is well ; and as to the process , the party did appear gratis . as to the word [ sive ] the same is good , for tenementum is but surplusage ; as in an action of waste , if the party do expresse some things which are not waste , and some things which are ; those which are not waste , are but surplusage . also he said , that the writ of error by which the record is removed , is insufficient ; for the writ is , that there is error manefestus . and doth not say [ ut dicitur , ] and therefore it is not good , for otherwise the king should forejudge us ; and also in the writ , it doth not say errorem siquis fuerit ; and it ought not precisely to say , that there is error . also the writ of error is to certifie a record de tribus messuagiis & tenementis ; and the record is , de tribus messuagiis sive tenementis ; and therefore the record is not well removed ; for it is not such record . as . ass . . in attaint , exception was taken , that the writ of attaint did not agree with the first originall ; but because it did agree with the record , it was good , although it did not agree with the first originall ; for the first originall was of the manor of ansti , and the attaint was of anesti , and so was the whole record . but if the attaint had disagreed with the record ; it had been error . also the writ was good , although tenementis were out of the writ , for it is but surplusage . and also tenementum is not a thing demandable ; as . h. . . it is said , that tenementum is not a name to demand a messuage by : but in trespass , of nusance to it , there tenementum is sufficient . suit justice , the record is now before us , and therefore the writ of error is not materiall : for if my lord anderson bring before us a record , although no writ of error be awarded , yet wee may proceed to examine whether there be error in it or not . also hee said , that the warrant of atturney was not good , although it was usuall , for that they ought to follow the course of the common law. clenche justice , there ought to be writ of error before that any judgement upon the errors can be given for to reverse the first record . the reason wherefore the certain name of the atturney ought to be put , is , because if one appeare as my atturney without my authority , i may have my action of the case against him , which i cannot have against w. h. it was adjourned . mich. , . eliz. in the kings bench. taylor against rebera . taylor brought an action of debt upon a bond of l l , against rebera ; which bond was endorsed with this condition , that if the plaintiff did bring such a ship to such a place in greece , and at the same place should stay for the space of forty dayes , or so long of the forty dayes as should please the defendant , so as he might freight the ship ; the defendant should freight the ship within forty dayes , and should bring it to such a port in england : and because he had not freighted the ship , and the ship was there by the space of forty dayes , he brought his action upon the bond : the defendant pleaded , that within those forty dayes , viz. by the space of four and twenty dayes , the said ship was laden with hoops , so as the defendant could not freight it : and the plaintiff did demurr in law upon the plea. clark for the plaintiffe : the defendant hath not answered to all the time , but to part onely ; and he had sufficient time , although the ship were laden with hoops for the space of four and twenty dayes : as . h. . barr. the master of s. katherines leased three houses by one indenture , upon condition that the lessee should not suffer nor harbour any lewd woman within the same houses , if he were warned thereof by the master or his servant for the time , &c. and if he did not put her out within six weeks after such warning , that then it should be lawfull for the master and his successors to enter . and it was shewed , that the lessee did suffer a lewd woman there to continue : wherefore such a one , servant of the master , gave him warning , &c. and the lessee did not put her out of the house , and that therefore the master did enter : which matter , &c. the lessee said , that after the said warning given , that the master commanded her to enter , and to dwell there for six weeks after , without that , that she continued there by the defendant . and it was ruled by the whole court , that the replication was not good , because the indenture is , that he should not suffer any lewd woman , &c. as if i be bound to enfeoff you of an acre of la●d by such a time , within which time you disseise me , the same is no plea , for that the feoffer hath not colour to enter ; therefore i may enter upon him , and make the feoffment . so in that case , the master had no colour to put her into possession , therefore it was no plea , without shewing the speciall matter : wherefore he said , that he did put her out , and that the master with force , &c. against the will of the lessee , did put her in ; and there made her to stay with force and violence , against the will of the lessee , for the six weeks &c. and that was holden to be a good plea. so in the principall case , he doth not shew , that he was kept out with force , but that he might cast out the hoops ; and therefore the plea is not good . so . h. . . br. condition . there was a covenant betwixt the lessor and lessee , that the lessor during the lease might be four dayes in a yeer in the house without being put out , upon pain of one hundred pounds : and the lessor came to enter , and the lessee shut the doors and the windows ; it was held , that was no breach of the covenant , without saying , that the lessee put him out . atkins contrary : the ship was to remain there to be freighted , for so many dayes as it should please the defendant of the forty dayes for to freight her : therefore the first act is to arise on the plaintiffs side ; and the same ought to be shewed specially to have been done . as . h. . . br. condition . debt upon a bond , upon condition that if the defendant resigne the benefice of d. unto the plaintiff upon a pension , as they may agree by a certain day , that then , &c. the defendant said , that he was always ready to resigne to him the benefice , and yet is , in case the plaintiff would assure him the pension . it was no replication for the plaintiff , that he offered him a pension , unlesse he shew , that he offered him a deed thereof . so . h. . a condition was , that if i may enjoy such goods , i will give to you such a summ of money ; i ought first to enjoy the goods , before that i shall pay any money . also in the principall case , it is not shewed , that the ship was ready there by the space of forty daies ; and it is a generall rule in conditions , that if the plaintiffe himselfe be the cause of disablement , so as the condition cannot be performed , that he shall not take advantage of a condition ; as in the case of . h. . where one is bounden to enfeoffe such a woman before such a day , and the obligee before the day doth marry the woman : . h. . and . h. . if i be bounden to pay a pension to one , untill he be promoted to a benefice , and he disables himselfe to take the benefice , i shall no longer pay the pension . besides , he said , that in the principall case , the matter could not be tryed here ; for the jury cannot take notice of a thing done ultra mare : but . h. . . a difference is taken : if the thing be all to be done beyond the sea , then it cannot be tried here ; but if part be to be done here , and part beyond sea ; so as it is mixed , it may be tried here ; as a bond with condition , that if the obligor bring the merchandizes of the obligee from norway beyond the sea , to lynn here , that then , &c. so contrary , if to carry goods delivered here , to burdeaux , &c. it was adjourned . mich. , . eliz. in the kings bench. . shotbolts case . a man brought an action upon the case against another , because he caused him to be indicted , and arraigned , &c. to his damage , &c. and it was for a robbery ; and the plaintiffe did not shew in his declaration , that he was legitimo modo acquietatus ; the defendant by way of barre said , that he was acquitted modo & forma , as the plaintiffe had said ; and in truth , he doth not say that he was acquitted . cook , if the declaration be insufficient , and wanteth substance , then there is no cause of action . clench justice , a man shall not have an action without cause ; and if he were convicted , then there is no cause of action : and he hath not shewed whether he was convicted or acquitted . and he said , that there was no difference betwixt an action on the case , and a conspiracie , in such case , but onely this , that a conspiracy ought to be by two at the least ; and an action upon the case may lie against one ; and he said , that in both , he ought to shew , that he was legitimo modo acquietatus . see . h. . . an action of conspiracy founded upon the statute of . h . cap. . where it is grounded upon a writ of trespasse brought against one onely ; but such a conspiracy which is grounded upon an indictment of felony , must be against two at the least ; for the same is an action founded upon the common law. mich. , . eliz. in the kings bench. . bonefant against sir ric. greinfield . bonefant brought an action of trespasse against sir richard greinfield : the case was this : a man made his will , and made a. e. i. o. his executors , and devised his lands to a. e. i. and o. by their speciall names , and to their heirs , and further willed that his devisees should sell the land to i. d. if he would give for the same before such a day an hundred pound ; and if not , that then they should sell to any other to the performance of his will , scil . the payment of his debts ; i. d. would not give the hundred pound . one of the devisees refused to entermeddle , and the other three sold the land ; and if the sale were good , or not , was the question . cooke . the sale is not good . . let us see what the common law is , at the common law it is a plain case , that the sale is not good , because it is a speciall trust , and a joynt trust , and shall never survive : for perhaps , the devisor who is dead , reposed more confidence in him who refused , then in the others . vide eliz. the case of the lord bray , who covenanted , that if his son marry with the consent of four , whom he especially named : viz. a. b. c. and d. that then he would stand seised to the use of his son , and his wife , and to the heirs of their two bodies begotten ; one of the four was attainted and executed ; the other did consent that he should marry such a one ; he married her , yet no estate passed , because the fourth did not consent , and it was a joynt trust . . h. . br. devises . a man willeth that his lands deviseable shall be sold by his executors , and makes four executors : all of them ought to sell ; for the trust which is put upon them , is a joynt trust . but brook conceiveth , that if one of them dieth , that the others may sell the lands . the case betwixt vincent and lee , was this ; a man devised , that if such a one dieth without issue of his body , that then his sons in law should sell such lands : and there were five sons in law when the testatour died ; and when the other man died without issue , there were but three sons in law , and they sold the lands , and it was holden that the sale was good ; because the land was not presently to be sold . also he said , that in the principall case here , they have an interest in the lands , and each of them hath a part ; therefore the one cannot sell without the other . but if the devise were , that four should sell ; they have not an interest , but onely an authority . as to the statute of . h. . cap. . he said , that that left our case to the common law : for that statute , as it appeareth by the preamble , speaks onely of such devises by which the land is devised to be sold by the executors , and not devised to the executors to sell . and goes further , and saith , any such testament , &c. of any such person , &c. therefore it is meant of such a devise made unto the executors ; and then no interest passeth , but onely an authority , or a bare trust : but in our case , they have an interest , for he who refused , had a fourth part ; then when the other sell the whole , the same is a disseisin to him of his part . if a feoffment be made to four , upon condition that they make a feoffment over ; and two of them make the feoffment , it is not good . also the words of the will prove , that they have an interest ; for it is , that his devisees shall sell , &c. laiton contrary , and he said , that although the devise be to them by their proper names , and not by the name executors ; yet the intent appeareth that they were to sell as executors , because it was to the performance of his last will ; and that may be performed as well by the three , although that the other doth refuse ; and the sale of the land doth referre to the performance of his will , in which there are divers debts and legacies appointed to be paid . . h. . and . h. . a man devised his lands to be sold for the payment of his debts , and doth not name who shall sell the same , the lands shall be sold by his executors . . ass . a devise is of lands unto executors , to sell for the performance of his will , the profits of the lands before the sale shall be assets in the executors hands . . h. . . is , that if a man devise , that his lands shall be sold , they shall be sold by his executors . also if i devise that my executors shall sell my lands , and they sell , it is an administration , and afterwards they cannot plead , that they never were executors , nor never administred as executors ; and although there are divers authorities to be executed , yet it is but one trust . . ass . . is our very case . a man seised of lands deviseable , devised them to his executors to sell , and died , having two executors , and one of them died , and the other entred and sold the land ; and the sale was good . . e. . . isabell goodcheapes case ; where a man devised , that after an estate in taile determined , that his executors should sell the lands , and made three executors , and one died , and another refused , the third after the taile determined , sold the land ; and the sale was holden good , and that it should not escheate to the lord , for the land was bound with a devise , as with a condition ; as to the statute of . h. . cap. . the preamble of the statute is , as it hath been recited : and although for exmaple , the lands in use are only put , yet the statute is not tied only to that ; as in the statute of collusion of malbridge ; examples are put only of feoffments and leases for years , yet there is no doubt but that a lease for life , or a gift in taile to defraud the lord , is within the statute . so the statute of donis conditionalibus puts onely three manner of estate tailes . but littleton saith , that there are many other estate tailes , which are not recited in the statute : so here , our case is within the mischiefe of the statute of . h. . cap. . although it be not within the example . so the statute of west . . is , that if the gardien or lessee for years , maketh a feoffment in fee , tam feofator quam feofatus habeantur pro disseisoribus : yet . ass . is , that if tenant by elegit make a feoffment , it is within the statute . also it may be a doubt , whether land devisable onely by custome bee intended in the statute of . h. . cap. . and whether land devisable by the statute of . h. . be within it or not , viz. if a statute of a pu●sne time shall be taken by equity within a more ancient statute : and i conceive it may ; as . h. . the statue of . h. . which sayes that the heire of cestuy que use shall be in ward , shall extend to the statute of praerogativa regis ; for if he be in ward to the king , he shall have prerogative in the lands , to have other lands by reason thereof . gaudy justice did rely very much upon the word [ devisees , ] viz. that they have an interest , and that the sale was not good . suit justice , they are both executors and devisees of the lands ; devisees of the lands , and executors to performe the will. cook , he who refused to sell , cannot waive the freehold , which is in him by a refusall in pars , as . h. . and . e. . but ought to waive it in a court of record ; therefore he hath an interest remaining in him . clenche justice ; what if he had devised the lands to four , and made one of them his executors , and willed that he should sell ; could not he sell ? all the court agreed that he might . cook , when a man deviseth that his executors shall sell , the fee descends to the heir ; yet they may sell that which is in another : but the same is not like to our case . it was adjourned . mich. , . eliz. in the king 's bench. . a judgement was given upon a bond for four thousand pound ; and the scire facias was sued for three thousand pound , and he did not acknowledge satisfaction of the other thousand pound . haughton moved , that the scire facias should abate . as if a man brings debt upon a bond of twenty pound , and shews a bond for forty pound , and doth not acknowledge satisfaction for l l , it is not good : the justices would advise of it . and at another day it was moved againe , whether the scire facias was good ; because it doth recite quod cum nuper such a one , recuperasset four thousand pound , and doth not shew in what action , or at what day the judgment was given , or the recovery had . piggot , that is not material , for such is the form in an audita querela , or redisseisin . as to the other , that he doth not acknowledge satisfaction , as in the case before cited by haughton , which case is in . h. . that is not like to an execution , for an execution is joint , or severall , at the will of him who sues it forth ; as in . r. . execution . hee may have part of his execution against one in his life time , and if he dieth , other part against his heir or executor . note , the execution was of the whole , but because the defendant had not so much , he had but part against him who had no more ; and therefore of the residue he had execution against the heir . gawdy justice , i conceive that he cannot have an execution , unlesse he acknowledge satisfaction . there is no difference , as to that betwixt the action of debt upon a bond and a scire facias ; and the intendment , viz. that it shall be intended that he was paid , because he sued but for three thousand pound , will not help him . piggot , as to that , vouched a case out of & . mary , in dyer , which i cannot find . suit justice said , that if the defendant in the scire facias say nothing by such a day , that judgement should be entred for the plaintiffe . quod executio fiet . mich. , . eliz. in the kings bench. judgement was given against an infant by default in a reall action of land : and a writ of error was thereupon brought ; and it was argued , that it is not error ; for in many cases an infant shall be bound by a judicious act , as . e. . infant . where an infant and a feme covert bring a formedon ; and the woman was summoned and severed : and it was pleaded , that where the writ doth suppose the woman was sole , she was covert ; and judgment was demanded of the writ , and that the infant could not gainsay it , but confessed it ; this confession of the plea which abated his writ , was taken . and . h. . . br. saver default . an infant shall not save his default , for he shall not wage his law ; see there , that the default shall not be taken against him ; therefore that book seems rather against it , then for it . vide . h. . br. saver default . that error lieth upon a recovery by default against an infant : otherwise , if it be upon an action tried , so is mar. br. judgment . it was said , that a generall act of parliament shall bind an infant , if he be not excepted . the justices did seem to incline , that if judgement be given by default , that it shall bind an infant ; but there was no rule given in the case . mich. , . eliz. in the kings bench. a clark of the king's bench , sued an officer of the common pleas , and he of the common pleas claimed his priviledge , and could not have it granted to him ; for it is a generall rule , that where each of the persons is a person able to have priviledge ; he who first claimes it , viz. the plaintiffe , shall have it , and not the defendant ; as if an atturney of the common pleas sueth one of the clarks of the kings bench ; yet he of the kings bench shall not have priviledge , although the kings bench be a more high court , because the other is plaintiffe , and first claimeth it . mich. , . eliz. in the kings bench. am action upon the case upon a promise was brought ; but the case was so long that i could not take it : but in that case , tanfield , who argued for the defendant , said , that it is not lawfull for any man to meddle in the cause of another , if he have not an interest in the thing , for otherwise it will be maintenance . but if a custome be in question betwixt the lord of the manor and copy-holder ; all the other copy-holders of the manor may expend their money in maintenance of the other and the custome ; and the master may expend the money of the servant in maintenance of the servant : so he in the remainder may maintain him who hath the particular estate . maintenance is an odious thing in the law , for it doth encrease troubles and suites . he argued also , how that bonds , obligations , and specialties , might be assigned over , how not . . h. . . br. maintenance . if j. s. be indebted to me , and i be indebted to j. d. i may assign that debt to j. d. with the assent of j. s. otherwise not , as i conceive . and there also another difference is taken , that damages which are to be recovered for trespass , battery , &c. cannot be assigned over , because they are as yet uncertain ; and perhaps the assignee may be a man of great power , who might procure a jury to give him the greator damages . if a bond be for performance of covenants contained in an indenture of lease , if he assign the lease , he may assign the bond also , because they are concomitants ; and he hath an interest in the lease , and therefore he may sue the bond : but if the covenants be first broken , and afterwards he assign over the lease , if the assgnee sue the bond , it is directly maintenance : but if he assign over the lease , and afterwards the covenants are broken , if he sue there it is no maintenance : but if he assign over the bond , and reserve the lease in his own hands , and then the covenants are broken , and the other sue the bond for the performance of covenants , it is maintenance : and to all that cook agreed . the second point ; an elegit is awarded to the sheriffe , and he extends the lands , and doth not returne it ; whether it be a lawfull execution to the party or not ? is the question . it is a good execution , unlesse the words of the writ be conditionall , for then there must be a returne of the writ ; as a fieri facias must be returned , otherwise the execution is not well done , for it is conditionall , viz. ita quod habeas pecuniam in curia , &c. so is it of a capias ad satisfaciendum , ita quod habeas corpus hîc . but an elegit is not conditionall . yet kemp the secondary said , that in the end of the elegit is , et de eo quod inde feceris nobis in dicta cancellaria tali die ubicunque tunc fuerit sub sigillo distinctè & apertè constare facias , &c. and so is the forme of the writ in fitz. nat. br. . tanfield . that is true , but it doth not make the writ conditionall : but that is the entry of the court and the sheriffe , and not the entry of the party and the sheriff . . h. . . by hankford , who was a man of great knowledge , and lived in learned times . if the recognisee of a statute merchant sueth execution of it , although the writ be not returned , and the recognisee hath execution , and afterwards the recognisor purchaseth other lands ; and afterwards the recognisee comes and saies , that the writ is not returned , and sues forth another writ , the recognisor shall have an audita querela in that case , and shall surmise in fact , how that execution was done by the first writ , and yet there is no record that execution was done by the first writ . so . e. . briefe . a writ issued to have execution in forty towns , and an extent was made , and delivered of lands in forty towns ; and the return made mention but of execution in eight towns , and therefore the party would have had a new writ ; and the other party was received to averre against the record of the returne , that the extent was in forty towns. . e. . scire facias . upon an elegit the sheriffe returned extendi feci , and did not say , deliberavi ; and in truth , he did deliver the lands in extent , and therefore he could not have a new execution . . eliz. betwixt colsill and hastings . colsill had an extent upon the lands of hastings , and the sheriffe being a friend to hastings , did not deliver full possession to colsill , but gave him possession in one part in the name of all the others . hastings continued possession of all the rest , and being upon election of new sheriffs , colsill was not over hasty to put him out , for he was in hope to have a more favourable sheriffe ; and the first writ was not returned , and there being a new sheriff , he sued forth a new writ to have execution . the defendant said , that he had before sued forth the like writ , and had execution . and colsill said , that the first writ was not returned ; and yet the opinion of the whole court was , that it was a good execution , and so it was ruled ; but the case was overthrown afterwards upon another point . so the earle of leicester had a statute extended upon the land of mr. tanfields mother ; and it was not returned ; and yet when he would have sued forth another execution , he could not have it allowed him by the rule of the court , because the first execution was a good execution , although it were not returned . eliz. it was the case of the countesse of derby , who married the earle of kent : in an habere facias seisinam in a writ of dower , execution was served , but not returned , and therefore she prayed a new writ , but could not obtain it , because the first was well executed , although it was not returned . so also was the lord morleyes case in the kings bench , in . eliz. the writ was not returned , and yet the execution was well done : and therefore he concluded , that the execution was good , although the writ was not returned . cook contrary , an elegit ought to be returned , and it is void if it be not returned . as to the case before cited of . e. . which began . e. . . and all the other cases put out of the old books , they are upon extents of statutes ; and there is a great difference betwixt an elegit and extents upon statutes ; as . h. . . it was agreed , that where a man recovers debt or damages , or hath a recognisance forfeit unto him , his executors shall not have execution , without a scire facias first sued ; contrary upon a statute staple or merchant ; and the like if the defendant dieth , the plaintiffe shall not have an execution by fieri facias against his executors , but he must first have a scire facias : so if the court change , as if the record cometh into the kings bench by error , and judgement be affirmed ; the plaintiffe who recovered , shall not have a fieri facias against the defendant , but must first have a scire facias : but otherwise it is of a statute , like the case of . h. . . br : execution . the case of . e. . doth not speak of elegit , but of statutes and extents . also the elegit and the extent differ in the entrie ; for the elegit hath a speciall and precise entry , as elegit sibi executionem , &c. and a man shall not have a capias after an elegit ; as . h. . is : and being a speciall entry of record , it ought to be returned ; for otherwise it doth not appear that execution is done ; and so there shall be great mischiefe , because infinite executions may issue forth . there is not any book in the law directly in the point : but i will put you as strong a case : a judgement is given upon an exigent by the coronor ; yet by . ass . . if there be no returne of the exigent , it is no sufficient out-lawry ; and one pleaded the same in the plainplaintiffe , and said , that it appeared by the record , and vouched the record : and because the exigent was not returned , it was not allowed . and so was the case of procter and lambert , & . philip and marie adjudged . as to the reports which are not printed , vouched by tanfield , eâdem facilitate negantur quâ affirmantur . upon an elegit , if there be goods sufficient , the sheriff is not to meddle with the lands ; and if there be not sufficient goods , yet hee is not to meddle with the beasts of the plough . if a man have an authoritie , and he doth lesse then his authoritie , all is void ; as here the return of the writ is part of his authority . as . ass . . if a man have a letter of atturney to make livery and seisin to two , and he makes it to one , all is void , and he is a disseisor to the feoffor . so . h. . if he have a letter of atturney to make livery of three acres , and he makes onely livery of two acres , and not of the third acre , it is void for the whole . also the elegit is , quod extendi facias & liberari , quousque the debt be satisfied : and therefore if the land be extended onely , and there be no delivery made of the land , ut tenementum suum liberum , according to the writ , then there is no execution duly done . and in the principall case , there was no delivery made of the land . it was adjourned . mich. , . eliz. in the king 's bench. stransam against colburn . stransam brought a writ of error against colburne , upon a judgment given in a writ of partitione facienda ; and divers errors were assigned . the first error assigned was , that the party doth not shew in his writ , nor in his declaration , upon what statute of partition hee grounds his action . and there are two statutes ; viz. the statute of . h. . chap. . and the statute of . h. . chap. . and yet hee groundeth his action upon one of the statutes . as . h. . . where the servants of the bishop of lincoln were indicted of murder , eo quod ipsi in festo sancti petri ( . h. . ) felonicè apud d. murdraverunt &c. and because there are two feasts of saint peter , viz. cathedrae , & ad vincula , therefore the indictment was not good . . e. . one brought a cessavit by severall precipes , viz. of one acre in d. and of another in s. and of the third in villa praedicta : and because it was uncertain to which , praedict . shall be referred , it was not good . . h. . br. action upon the statute . an information was in the exchequer for giving of liveries , and the partie did not declare upon what statute of liveries ; and exception was taken to it , and the exception was not allowed , because that the best shall be taken for the king ; but if it had been in the case of a common person , it had not been good . so , if a man bring an action against another , for entry into his land against the forme of the statute , it is not good , because hee doth not shew upon what statute hee grounds his action : whether . h. . which gives treble damages ; or . h. . which gives imprisonment , and single damages . the second error which was assigned by weston , was , that the declaration doth shew quod tenet pro indiviso ; and doth not shew what estate they held pro indiviso . and there is a statute ▪ which gives partition of an estate of an inheritance . viz. . h. . cap. . and another which gives partition for years , or for life ; and he doth not shew in which of the statutes it is . as if one claime by a feoffment of cestuy que use , as . h. . is , he ought to shew , that the cestuy que use was of full age at the time of the feoffment , &c. for it is not a good feoffment , if he be not of full age . so here he ought to shew , that he is seized of such an estate , of which by the statute he may have a writ of partition . for in many cases there shall be joynt-tenants , and yet the one shall not have a writ of partition against the other by any statute . as if a statute merchant be acknowledged to two ; and they sue for the execution upon it , i conceive , that the one shall not have partition against the other . so if two joynt-tenants bee of a seignorie , and the tenant dieth without heir , so as the lands escheat to them , they are joynt-tenants , and yet partition doth not lye betwixt them by any statute : therefore one may be seised pro indiviso , and yet the same shall not entitle him to a writ of partition . shuttleworth , contrary . the statute doth not give any forme of writ , but the writ which was at the common law before ; and therefore it is not to be recited , what kind of writ he is to have . as to the second point , it is not necessary to shew the estate , because it cannot be intended , that he hath knowledge of the estate of the defendant . for ▪ if one plead joynt-tenancy on the part of the plaintiffe , hee shall not shew of whose gift : but if the defendant or tenant plead joynt-tenancy of his part , he ought to shew of whose gift , and how , . e. . plo. com. partridges case . in a case upon the statute of maintenance . the plaintiffe may say , that he accepted a lease , and shall not be forced to shew the beginning or the end of it , or for what years it is . in the case of the indictment before : and the case of severall precipes of severall acres in severall towns , that lyeth in the plaintiffs cognisance . but here , how can the plaintiffe know the defendants estate , because he may change it as often as he pleaseth ; and therefore it is uncertain ; for if before he had a fee , hee might passe away the same unto another , and take back an estate for years . also the plaintiffe hath appeared , and pleaded to the declaration ; and therefore he shall not have a writ of error . gaudy justice , that is not so . shuttleworth ; true , if there be matter of error apparant . gaudy justice , cannot you take notice of your own estate ? cook. the declaration is not good ; therefore the writ of error is maintainable . by the common law , no partition lieth betwixt tenants in common , as these are . and the statute of . h. . gives partition onely of an estate of inheritance , and prescribes also that the writ shall be devised in the chancery : there he conceived the ancient writ is not to be used . i grant for a generall rule , that if a statute in a new case give an old writ ; he shall not say contra formam statuti , because it is not needfull to recite the statute , or make mention of it . and the statute of . h. . cap. . sayes , that the writ shall bee devised upon his , or their case , or cases ; if one bring a writ upon the statute of . h. . it is not necessary to shew of what estate he is seised , but de haereditate generally . but upon . h. . he ought to shew of what estate , viz. for years , or for life . as it was in the case where sir anthony cook , and temple , and wood were parties ; which case is in bendloes reports , mich. . & . eliz. which was a great case twice stood upon , and argued . and the reason there is given , that every case is not within the statute ; and if at the common law , and not within the statute , the writ shall not be grounded upon the statute . for in the case before , they might have partition at the common law , as one co-parcener against the alienee of the other co-parcener may have . also he said , that severall judgements are to be given as the case is , upon the severall statutes : for the judgement upon the first statute of . h. . of inheritances is , sit firma partitio in perpetuum ; but upon the statute of . h. . it is not so ; for judgment given upon that statute shall not bind him in the reversion ; for there is a proviso in the statute in the end of it , that partition made by force of that statute shall not be prejudiciall or hurtfull to any persons , other then such who be parties to the said partition , their executors , or assignes . but here it is observed , that by intendment he cannot have knowledge of his estate . answ . that is at his perill : for if he cannot have knowledge of his estate , there cannot be any partition upon any of the statutes . if he will have benefit of the statute , he ought to shew that he is within the statute ; and if he cannot shew it , then it must remaine at the common law. but it hath been objected , that we have confessed the declaration to bee good , because we have appeared and pleaded : i answer , that if the declaration want substance , it shall never bee made good by plea , or confession . but if it want circumstance , that perhaps may bee made good by pleading , or confession . tanfield contrary . two principall things are alleadged for errour ; that the declaration is uncertaine in the estate , and that it is uncertaine in the statute . i may know my own estate , but not the estate of my companion , for it is uncertain , and he may secretly change it when he pleaseth . but then cook said , it must remaine as at the common law. itane ? then farewell statute ; for it may easily be defrauded , and no use of it ; for if i cannot know the estate , i cannot have an action upon the statute ; but our case is better , for our case is , that recusat facere partitionem contra formam statuti in hoc casu provisam : and that is according to the statute ; for be the estate an estate of inheritance , free-hold , or lease for years , we leave it indifferent to be referred to the consideration of the law ; and according as our case shall fall out . also it is but an incertainty , and you have pleaded to it , and therefore it is no error ; but i grant that if it were matter of substance , that it were error . yet fitz. nat. br. . d. in a writ of entrie sur disseisin , if the originall writ want these words , viz. quam clamat esse jus & haereditatem suam : if the tenant do admit of the writ , and plead to the action , and loseth , he shall not assigne the same for error , because he hath admitted the writ to be good by his plea. so in detinue of charters concerning lands , if the plaintiffe in his count or declaration doth not declare the certainty of the land , &c. if the defendant doth admit of the count or declaration , and plead , the declaration is made good . as to the judgement , if the word inperpetuum be in it , either in the one case or in the other , it shall be construed , to be but during the estate . in a writ of partition there are two judgements ; the first , that fiet partitio ; secondly , when the partition is made and returned ; the judgement is , that stet firma & stabilis partitio . gawdy justice , the writ is to be devised upon his or their case or cases , therefore the party ought to shew his case in speciall , and what estate he hath . and it is no answer , that he cannot know the estate of the defendant : for in a precipe at the common law , he ought to take notice of the estate of the tenant , or otherwise his writ shall abate for the misprision of it ; for if he bring it against a termor it is not good . and if the statute of . h. . had only been made , and not the statute of . h. . if he had brought a writ of partition upon the statute ; he ought to have shewed that he had an estate of inheritance against whom he brought the writ . suit justice agreed with tanfield in the whole . gawdy was strongly of the other side , that he ought to shew within the purview of which statute he was ; and if he will enable himself by law to bring the writ , he must enable himselfe to be within the law. and he said , that temples case was adjudged , as it was accordingly vouched by cook before . mich. , . eliz. in the king 's bench. dennie and turner's case . an action was brought upon the statute of . eliz. for perjury ; and the plaintiffe did declare , that where an action of debt was brought hill. ultimo praeterito , . elizabeth whereas in truth the action in which he was perjured was , hill. . eliz. and so the recitall did misse the record . bartlet argued upon the case put in leicester and heydons case , in plowdens commentaries , where time , place , and number , ought to be observed , otherwise all is void ; also he said , that if the party should recover here , upon a perjury , committed upon a record of . eliz. and should also recover in another action upon the statute of . eliz. for a perjury in an action begun . eliz. that he should be double charged . cook , he cannot bee double charged , for it is betwixt the same parties , and in the same cause ; and only a circumstance is mistaken . clench justice , it is needfull to shew in what action the first perjury was committed ; for if hee say in trespasse , whereas in truth it was in debt , all is naught . gaudy justice , if no action be alledged , he cannot sue upon the statute of . eliz. but the case was upon a speciall verdict , and the verdict did find that the action was brought at another time then any of the parties had alledged : and that variance was first found by verdict , and no mention made of it before ; and therefore cook said it was void ; for he said , that by the book of . ass . . the jury cannot find any other thing then the parties have alledged : for there the jury found a dying seised after judgement in a recovery ; whereas a dying seised was alledged , and did not say after a recovery . mich. , . eliz. in the kings bench. eglinton and aunsell's case . in an action upon the case for words ; the words were these , thou art a cosening knave , crowner , and hast cosened many of thy kindred of their lands . cook , it is adjudged , that cosener will bear no action ; for the words are too generall . and the word [ cosener ] doth not go to the office in the principall case : also the word [ cosening ] is a word abused ; . h. . br. action upon the case . false perjured man bears an action ; but false man without [ perjured ] will bear no action , and is nothing else but false and fraudulent . there was a case , as cook said , betwixt osborne and frittell ; you did robb me , and took away my evidences and a sub pena . and it was ruled , that no action did lie for them : and there it was holden , that the word [ and ] was a copulative . kir●y●'s case , thou art a crafty cosening knave , and hast cosened many of thy kindred : adjudged not actionable . snagg serjeant contrary , that the action lieth ; for he said , that a crowner is sworn to do his office ; and if he be false and deceitfull in his office , then he is forsworn ; and the word [ and ] here begins a new sentence , and doth not expound the precedent words , as the words [ because ] or [ in that ] &c. clench justice if the word cosener had been left out , it had been a cleer case that the words would not have born an action : and if one do call him cosening crowner , it is cleer , the words are actionable . gaudy justice , we are to go strongly against these kind of actions : if the words [ cosening ] shall go and extend to the word crowner , then cleerly an action doth lie , in respect of the office : and then if [ and ] and all the subsequent words had been left out , yet the action would lie . suit justice , if there were words sufficient before the word [ and ] to maintain an action , the subsequent words shall not overthrow those that went before : but if the words had been , thou art a cosening knave , crowner , in cosening of thy kindred ; the action had not been maintainable : but the word [ and ] is not a word explantory as the word [ in ] is . the better opinion of the court was , that the words were not actionable . mich. , eliz. in the kings bench. a man brought an action upon the case for speaking these words of him , viz. he hath aided pirats , contrary to the lawes of the realme , and against a proclamation in that behalfe . snag said that the words are not actionable , because there wants the word [ scienter ] for an honest man may unwittingly do so : and if a man chargeth one in an action upon the statute of . elizabeth , and declare that he said , that he was perjured , contrary to the forme of the statute ; hee also ought to say , that hee did it willingly and corruptly . cook , true , if a man bring an action upon the statute of . elizabeth . but if he saith , such a one is a perjured man generally , an action upon the case will lie , without saying willingly and corruptly . also those words , viz. [ contrary to the lawes of the realm ) do imply scienter ; for if it were not scienter , it could not be contrary to the lawes of the realme . clenche justice , i conceive that the word [ scienter ] is a materiall word in this case ; and vouched the lord shandoes case , where one said , that he was a maintainer of theeves , and it was adjudged that the action would lie . it was one sidenhams case , where one said , that a robbery was done , and that such a one smelt of it ; and an action was brought for the words , and adjudged , that an action would lie . and the words here are as forcible , as if he had said scienter ; and the case was adjourned for the search of presidents untill the next terme . mich. , . eliz. in the kings bench. if two men be partners of merchandizes in one ship ; and one of them appoints and makes a factor of all the merchandizes ; it was moved by godfrey , and not denyed by the justices , that both of them may have severall writs of account against him , or they may joine in one writ of account , if they please . quaere of that . mich. , . eliz. in the kings bench a man made a contract with another man , when he dwelt in the city of london ; and afterwards he who made the contract went from the city and dwelt within the cinque ports ; and he being afterward impleaded in the kings bench upon the contract , claimed the priviledg of the cinque ports ; which according to . e. . is , that those of the cinque ports shall not be sued elswhere then within the cinque ports . suit justice said , that that was true , for any matter or cause arising within the cinque ports : but otherwise , if a man do enter upon a bond of one hundred , or one thousand pound , and then go and dwell in the cinque ports ; perhaps so the obligee might lose his debt . and it was adjudged : that the defendant should not have priviledge . mich. , . eliz. in the kings bench. . sir jervis clifton's case . in a quo warranto . the information was , that where the defendant was seised of a mannor , and of a house within it , that he claimed to have a court or view of frankpledge infra messuagium praedictum ; and further it was , that sine aliqua concessione sive authoritate usurpavit libertates praedictas . the defendant pleaded , that non usurpavit libertates praedict ' infra messuagium praedictum , modo & forma . piggot , the plea is not good ; for the naturall answer to a quo warranto is , either to claime or disclaime , and he doth do neither of them ; and if a man will tender a generall issue , he ought so to tender it as the nature of the action doth require . that he was never seised after time of memory is no plea in rescous . in debt rein arere , is no plea , but he ought to answer to the debet . the speciall matter alledged in the action , ought to be answered , and the generall not to be pleaded ; as it is pleaded here , non usurpavit , &c. as in . e. . detinue of charters was pleaded in a writ of dower ; and she said . that such a one was seised , and did enfeoffe her , and her husband ; and so the deeds did belong unto her . the partie shall not traverse , that they did not belong unto her ; but must answer unto the especiall matter ; viz. the feoffment . also he said , quod non usurpavit , &c. infra messuagium praedictum ; where he ought to have said , infra manerium praedictum . an account was brought upon a receipt for seven years , and the defendant pleaded to two of the years ; and issue was joyned upon it : and it was adjudged error . godfrey . he ought to say , non usurpavit libertates praedictas , nec earum aliquam : for he ought to answer singulatim , as . h. . where one was bounden that hee , and his servants should keep the peace ; he shall not say generally , that he and his servants have kept the peace ; but he ought to answer for every one particularly ; so here he ought not to answer generally , non usurpavit libertates praedicts , &c. without saying , nec earum aliquam . also it is naught , because he saith , non usurpavit infra messuagium praedictum , &c. for although it be sufficient for us to say , quod usurpavit infra messuagium praedictum ; because if hee hath usurped upon any part of the mannor , vsurpavit infra manerium ; yet it is not good for him to answer so : for if he hath usurped in any part of the mannor , although not in the messuage , it is sufficient for us : as . h. . br. traver● sans ceo . . information was in the exchequer , eo quod the defendant had bought certaine wools of w. n. contra formam statuti , where he is not a draper , nor was a draper . it is no issue , that he did not buy them of w. n. but hee ought for to answer , that he did not buy them modo & forma . for whether he bought them of w. n. or of i s. it is not materiall , for that is not traversable ; but the buying contrary to the forme of the statute is the matter traversable : besides , he doth not answer , that he hath these liberties concessione , or authoritate regia . and it followes , necessarily , that if he hath them not by royall authority , that then he hath usurped them : as . h. . and . h. . one alledged a devise , that the lands were devisable in such a town , &c. and the other pleads , that the lands are not devisable ; it is no plea , because he doth not answer to the custome of the town . so here hee pleads , non usurpavit , but he doth not answer , whether he hath them authoritate regia , or not . cook , the queen demands quo warranto ? he sayes , non usurpavit , doth not that answer the question ? doubtlesse it is a direct answer : as . e. . itin. north , if he doth not use any liberty , a quo warranto , doth not lie . and as to that objection , that he ought to answer directly to your question , it is not so ; for . e. . voucher . i may vouch in a quo warranto , yet there i do not directly answer to your question . so in tempore e. . ibidem , in a juris utrum , is a question , who hath right : yet he is not bound directly to answer the question . . e. . he may plead the generall issue . and it is a generall rule : where a thing is materiall , without which you cannot have an action ; that there i may traverse it ; as . h. . and . h. . upon the statute of maintenance . ne mainteina pas , is a good plea , and yet it doth not answer to the speciall matter alledged . and upon non usurpavit , all the speciall matter may be given in evidence . . h. . where one is charged as bayly of a manor , curam habens & administrationem bonorum ; there it is a good plea to say , that he was not his receivor modo & forma ; and that shall go to the goods as well as to the mannor : and so is . e. . but it was objected , that the issue is multiplex and uncertain , for he might usurp by misuser , or non user ; because it had been used , and now it is not used ; to that i answer ; that upon non intrusit , or not guilty ; he may give in evidences . titles ; and the court might be enveigled therewith as well as in this issue . but then it was objected , that he ought to say , non usurpavit libertates praedictas , nec earum aliquam . i answer , that he ought not so to do ; for if a quo warranto be brought of . manors , or liberties : non usurpavit modo & forma goes to them all . and he shall not say , non usurpavit in hoc , nec in illo , nec in illo ; the book before vouched by godfrey . . h. . of buying of wools of i. s. is not law ; but then it was further objected , that he doth not answer whether he hath them authoritate regia , or not ? to that i answer , that is answered in these words , modo & forma . but now let us see if the information be good , or not . for it was shewed , that the defendant was seised of a manor , within which there is an house , within which house he claims to have a court with view of frankpledg , and to summon the tenants ad ●and●m curiam ; and this is uncertain , where he saith , ad eandem curiam : for there are two alledged before , and therefore it is uncertain to which it shall be referred . also he saith , that he claimeth to have a court , and it may be it is a court of pipowders , or torne ; as . e. . . where it is said , that an indictment was taken at the court or view of frankpledg , and there holden it was not good ; for it cannot be intended what court. and as to that , that he sayes , that he clayms to have a court &c. infra messuagium praedictum , &c. and to call twelve men to it , and that these twelve men ought to be of the jury : there is an ancient reading which goes under the name of frowicks reading upon the statute of quo warranto : and there it is holden , that a quo warranto doth not lie of the claim of a thing which cannot be claimed ; as to claim felons goods , or to pardon felons : for those are things which lie onely in point of charter . if the claim be within the messuage , then he cannot call men out of the messuage : as if he claime within the manor , hee cannot call men out of the manor . but a man may have a leet belonging to a house , or within a house . suit justice , it is habere & tenere infra messuagium praedictum : and that he may well do . a quo warranto contains but two things in it : first , it is demanded quo warranto hee claymes such liberties . secondly , it chargeth him with a tortious usurpation of them . and here in the principall case he hath answered to the usurpation of them ; but hee doth not answer , nor shew by what title he clayms them . and the like case was adjudged here in this court ; that non usurpavit modo & forma was no sufficient answer . the case was adjourned mich. , . eliz. in the common pleas. intratur trinit . . el. rot. . leedes and crompton's case . a lease was made to a. b. and c. upon condition that they nor any of them should alien without licence : and the lessor made a licence that a. b. or c. might alien : the same is a good licence , notwithstanding the uncertainty ; and thereby they have severall authorities to alien : as a letter of atturney to a. or b. to make livery ; but a gift to a. or b. is void for the uncertainty . but if a licence be to a. and b. or c. some conceived that a. or b. might alien ; but not c. et è●converso . mich. , . eliz. in the common pleas. it was agreed by the whole court , that a partition made by word betwixt joyntenants , is not good . see dyer . pl. . and . pl . doth agree ; and see there the reason of it . mich. , . eliz. in the common pleas. it was holden by the whole court , that if the father do devise lands unto his son and heir apparant , and to a stranger , that it is a good devise ; and that they are joyntenants for the benefit of the stranger . mich. , . eliz. in the common pleas. fuller's case . a. promises unto the eldest son , that if he will give his consent that his father shall make an assurance unto him of his lands , that he will give him ten pounds : if he give his assent , although no assurance be made , yet he shall maintain an action upon the promise . but at another day periam justice said , that in that case the son ought to promise to give his assent , or otherwise a. had nothing , if his son would not give his consent . and so where each hath remedy against the other , it is a good consideration . in hillary term after , fenner spake in arrest of judgment upon the speciall verdict , that because that the assumpsit is but of one part , and the other is at liberty , whether he will give his consent or not ; that therefore although that hee do consent , that hee shall not recover the ten pounds . also he said , that the promise was , that if hee would give consent that his father should make assurance to him : and here the assurance is made to a. to the use of the defendant and his wife in taile , so as it varies from the first communication ; and also it is in tail . shuttleworth contrary ; in as much as he hath performed it by the giving of consent , then when he hath performed . it is not to the purpose , that he was not tyed by a crosse assumpsit to do it ; but if he had not given his consent , he should have nothing . at length judgment was given for the plaintiff . and periam justice said in this case , that if a covenant be to make an estate to a. and it is made to b. to the use of a. that he doubted whether that were good or not . mich. , eliz. in the common pleas. intratur hill. . eliz. rot. . wiseman and wallinger's case . a man seised of two closes called bl. acre , makes a lease of them rendring ten shillings rent : the lessee grants all his estate in one of them to a. and in the other to b. the lessor doth devise all his land called bl. acre in the tenure of a. and dieth . the devisee brings an action of debt for the whole rent against the first lessee . and the opinion of the whole court was , that the action would not lie , because they conceived , that but the reversion of one close passed , and also that the rent should not be apportioned in that case , because a terme is out of the statute ; and a rent reserved upon a lease for years shall not be apportioned by the act of the lessor ; as where he takes a surrender of part of it . but otherwise by act in law ; as where the tenant maketh a feoffment in fee of part of the land , and the lessor entreth . and at another day anderson chief justice said , that if the lessor of two acres granteth the reversion of one acre , that the whole rent is extinct . mich. , . eliz. in the common pleas a lease for years is made of land by deed rendring rent ; the lessee binds himselfe in a bond of ten pound to perform all covenants and agreements contained in the deed ; the rent is behind , and the lessor brings an action of debt upon the bond for not payment of the rent ; the obligor pleads performance of all covenants and agreements ; the lessor saie , that the rent is behind ; it was holden , that it is no plea for the obligor to say , that the rent was never demanded : but in this bar he ought to have pleaded , that he had performed all covenants and agreements , except the payment of the rents . and as to that , that he was alwayes ready to have paid it , if any had come to demand it ; but as the first plea is , it was held not to be good . and as to the demand of the rent , the court was of opinion , that it was to be demanded , for the payment of the rent is contained in the word [ agreements ] and not in the word [ covenants ] : and then if he be not to performe the agreements in other manner then is contained in the deed ; of that agreement the law saith , that there shall be a demand of the rent : but if the lessee be particularly expressed by covenant to pay the rent , there he is bound to do it without any demand . mich. , . eliz. in the common pleas. hollenshead against king . thomas hollenshead brought debt against ralph king upon a recovery in a scire f●cias in london , upon a recognizance taken in the inner or ouster chamber of london ; and doth not shew , that it is a court of record ; and that they have used to take recognisances and exception was taken unto the declaration , and a demurrer upon it ; and divers cases put , that although that the judgement be void , that yet the execution shall be awarded by scire facias , and the party shall not plead the same in a writ of error . but periam justice took this difference , where execution is sued upon such a judgement , and where debt is brought upon it : for in debt it behoves the party that he have a good warrant and ground for his action , otherwise he shall not recover ; but upon a voidable judgement he shall recover , before it be reversed . mich. & eliz. in the common pleas. intratur trinit . . eliz. rot. . costard and wingfield's case . in a replevin , the defendant did avow for damage feasans by the commandment of his master the lord cromwell : the plaintiffe by way of replication did justifie the putting in of his cattell into the land , in which , &c. by reason that the towne of n. is an ancient town , and that there hath been a usage , time out of mind , that every inhabitant of the same towne had had common for all his cattel levant and couchant in the same town ; and so justified the putting in of his cattell . the defendant said , that the house in which the plaintiffe did inhabite in the same towne , and by reason of residency in which house he claimed common , was a new house built within years , and within that time there had not been any house there ; and upon that plea , the plaintiffe did demurr in law. shuttleworth serdeant for the plaintiffe , that he shall have common for cause of resiance in that new house ; and the resiancy is the cause and not the land , nor the person ; and to that purpose he cited e. . . and he agreed the case , that if the lord improve part of the common , that he shall not have common for the residue , because of the same land newly improved ; for he cannot prescribe for that which is improved by . ass . but here he doth prescribe not in the person , or in , or for a new thing ; but that the usage of the towne hath been , that the inhabitants shall have common , and that common is not appendent , nor appertinent , nor in grosse , by needham h. . . b. besides he said , that if the house of a freeholder who hath used to have such common fall down , and he build it up again in another place of the land , that he shall have common as before . and he put a difference betwixt the case of estovers , and this case ; where a new chimney is set up , for that makes a new matter of charge : and he much stood upon the manner of the prescription . gaudy serjeant contrary , and he took exception to the prescription ; for he saith , that it is antiqua villa , and doth not say time out of mind ; and such is the prescription in . e. . . a. and if it be not a town time out of mind , &c. he cannot prescribe that he hath used time out of mind , &c. and he said , that if it should be law , that every one who builds a new house should have common , it should be prejudiciall to the ancient tenants , or impaire the common : and so one who hath but a little land might build houses , and so an infinite number , and every house should have common , which were not reason anderson chief justice , he who builds a new house cannot prescribe in common , for then a prescription might begin at this day , which cannot be ; and he insisted upon the generall loss to the ancient tenants . p●riam justice , if it should be law , that he should have common , then the benefit of improvement which the statute giveth to the lord shall be taken away by this means by such new buildings , which is not reason : so as all the justices were of opinion , that he should not have common : but judgement was respited untill they had copies of the record . and hillary term following , the case was moved again ; and anderson and periam were of opinion as they were before , and for the same reasons . but windham justice did incline to the contrary : but they did all allow , that he who new bulids an old chimney shall have estovers , so a house common . so if a house fall down , and the tenant build it up again in another place . periam , if a man hath a mill and a watercourse time out of mind , which he hath used to cleanse ; if the mill fall down , and he set up a new mill , he shall have the liberty to cleanse the watercourse as he had before . and that terme judgement was given for the defendant , to which windham agreed . mich. , . eliz. in the common pleas. in a replevin , the parties were at issue upon the property , and it was found for the plaintiff , and damages intire were assessed ; and not for the taking by it self , and for the value of the cattell by themselves ; for the judgement upon that is absolute and not conditionall ; and also if the plaintiffe had the cattell , the defendant might have given the same in evidence to the jury , and then they would have assessed damages accordingly , viz. but for the taking . mich. , . eliz. in the common pleas. a. bargaines with b. for twenty loads of wood , and b. promises to deliver them at d. if he fail , an action upon the case lieth . but periam justice said , that upon a simple contract for wood upon an implicative promise , an action upon the case doth not lie . rodes justice , if by failer of performance the plaintiff be damnified , to such a sum ; this action lieth . mich. , eliz. in the common pleas. a lease of lands is made excepting timber-woods , and under-woods . and the question was , whether trees sparsim growing in hedge rowes and pastures , did passe . and difference was taken , betwixt timber-wood being one wood , and timber woods being severall words ( although it bee arbor dum crescit , lignum dum crescere nescit ) yet in common speech that is said timber , which is fit to make timber . then it was moved , who should have the lops and fruits of them , and the soile after the cutting of them downe ; and also the soile after the under woods ; and as to that , a difference was taken , where the words are generally , all woods ; and where they are his woods growing . and in speaking of that case , another case was moved : viz. if a stranger cut down woods in a forrest , and there is no fraud or collusion betwixt him , and the owner of the land ; whether the king should have them , or the owner of the soile ? and it was holden , that the owner of the soile should have them ; and yet the owner could not cut them downe , but is to take them by the livery of one appointed by the statute . mich. , . eliz. in the common pleas. . a. makes a lease of lands to b. for ten years , rendring rent . and b. covenants to repaire , &c. afterwards a. by his will , deviseth , that b. shall have the lands for thirty years after the ten years , under the like covenants as are comprised in the lease . fenner moved it as a question , if by the devise those which were covenants in the first lease , should be conditions in the second ; for they cannot bee covenants for want of a deed ; and if they should not be conditions the heir of the lessor were without remedie , if they were not performed . a devise for years paying ten pounds to a stranger , is a condition , because the stranger hath no other remedy . gaudy justice , by the devise to him to do such things as he was to do by the lease , makes it to be a condition : which was in a manner agreed by all the other justices . yet periam and rodes justices , said , that the first lease was not defeisable for not performance of the covenants ; nor was it the intent of the devisor , that the second should be so , notwithstanding that his meaning was , that he should do the same things : periam , the covenant is in the third person , viz. conventum , & aggreatum est . and see . h. . dyer , where the words , non licet to the lessee to assigne , make a condition . mich. , . eliz. in the common pleas. . barber and topesfeild's case . a. being tenant in taile of certain lands , exchanged the same with b. b. entred , and being seised in fee of other lands , devised severall parcels thereof to others , and amongst the rest a particular estate unto his heir ; proviso , that he do not re-enter nor claim any of his other lands in the destruction of his will and if he do , that then the estate in the lands devised to him to cease . a. dieth , his issue entreth into the lands in taile , and waives the lands taken in exchange ; and before any other entry , the heir of b. enters upon the land which was given in exchange ; and the opinion of the whole court was , that it was no breach of the condition , because that was not the land of the devifor at the time of the devise ; therefore , it was out of the condition . mich. , . eliz. in the common pleas. . plympton's case . an action of debt was brought by one plympton and his wife , executors of one dorrington , upon a bond with condition to perform covenants , of an indenture of lease , whereof one covenant was , that he should pay forty shillings yearly at the feast of the annunciation , or within fourteen days after . and the breach assigned was for not payment at such a feast in such a year . the defendant said , that hee paid it at the feast ; upon which they were at issue . and upon evidence given to the jury , it appeared , that the same was not paid at the feast , but in eight dayes after it was paid . and the opinion of the court was , that by his pleading , that hee had paid it at such a day certain , and tendring that for a speciall issue , that hee had made the day part of the issue , and then the ▪ defendant ought to have proved the payment upon the very day . but if the defendant had pleaded ▪ that hee paid it within the fourteen dayes , viz. the eighth day , &c. that had not made the day parcell of the issue ; but then hee might have given evidence , that he paid it at another day , within the fourteene dayes : then for the defendant it was moved , that the plaintiffe had not well assigned the breach ; in saying that he had not paid it at the feast ; without saying , nor within the fourteen dayes . but the court said , that the jury was sworn at the barre , and bid the councell proceed and give in their evidence ; for the time to take exception was past . mich. , . eliz. in the common pleas. . it was the opinion of anderson chiefe justice , and so entred by the court , that if a copie-holder doth surrender to him who hath a lease for years of the mannor , to the use of the same lessee , that the copie-hold estate is extinct : for the estate in the copie-hold is not of right , but an estate at will , although that custome and prescription had fortified it . and wray said , that it had been resolved by good opinion , that if a copie-holder accept a lease for years of the mannor , that the copie-hold estate is extinct for ever . mich. , . eliz. in the common pleas. . anderson chiefe justice , and periam justice , being absent in a commission upon the queen of scots , shuttleworth moved this case to the court. if the queen give lands in taile to hold in capite , and afterwards granteth the reversion , how the donee shall hold ? windham justice , and fenner serjant , the tenure in this case is not incident to the reversion ; and the donee shall hold of the queen , as in grosse ; and so two tenures in capite , for one and the same land. and thereupon , windham justice cited . h. . dyer , . that the queen by no way can sever the tenure in chiefe from the crown . and therefore , if the queen do release to her tenant in capite , to hold by a penny , and not in capite , it is a void release ; for the same is meerly incident to the person and crown of the queen . but rodes justice , held the contrary , viz. that the tenure in capite doth not remain . but it was said by windham , that if the queen had reserved a rent upon the gift in tail , the grantee of the reversion should have it ; also he said , that the queen might have made the tenure in such manner : viz. to hold of the mannor , or of the honor of d. shuttleworth . if lands holden of the mannor of d. come to the king , may he give them to be holden of the mannor of s ? that should be hard . windham , i did not say , that lands holden of one mannor may be given to be holden of another mannor ; perhaps that may not bee , but lands which is parcell of any mannor , may be given vt supra . mich. , ▪ eliz. in the common pleas. serjeant fenner moved case : if lands be given to the husband and wife , and to the heirs of their two bodies , and the husband dieth leaving issue by his wife , and the wife makes a lease of the lands , according to the statute of . h. . if the lease be good by the statute ? windham and rodes justices , conceived , that it is a good lease . fenner , the statute saith , that such lease shall be good against the lessor and his heirs ▪ and the issue doth not claim as heir to the wife onely , but it ought to be heir to them both : and he cited the case , that the statute of r. . makes feoffments good against no heirs but those which claim onely as heirs to the same feoffors , &c. so here . rodes justice , there the word [ only ] is a word efficacy ; and windham agreed cleerly , that the lease should binde the issue by the said statute of . h. . mich. , . eliz. in the common pleas. walmesley serjeant moved this case , if a man deviseth lands in taile , with divers remainders over , upon condition that if any of them alien , or &c. that then he who is next heir to him to whom the land ought to come after his decease , if the said alienation had not been made , might enter , and enjoy the land as if he had been dead . ( but ady of the temple said , that the words of the devise are , viz. that if any of them alien , or &c. that then his estate to cease , and hee in the next remainder to enter and retain the land untill the aliener were dead . ) rodes justice , the devise is good ; and an estate may cease in such manner , so as it shall not be determined for ever , but that his heir after him shall have it . and he put the case of scholastica , plow . com. . where ( weston fo . . . ) was in some doubt , that if the tenant in talle had had issue , if the issue should be excluded from the land ; or whether hee should have the land by the intent of the devisor ? and therefore if it were necessary to shew that the tenant in taile had not tssue ? but dyer said , that the words of the will were , that such person and his heirs who alien , or &c. should be excluded presently ; so as the estate by expresse words is to be determined for ever . but it is otherwise in this case . windham doubted of the devise . fenner cited the case , . e. . . where a rent was granted , and that it should ce●se during the nonage of the heir of the grantee , and it was good . windham , when a thing is newly created , he who creates it may limit it in such manner as he pleaseth . fenner . e. . . det. . a feoffment was made , rendring rent , upon condition that if the rent be behinde , the feoffor might enter , and retain quousque : there the estate shall be determined pro tempore , and afterwards revived again . windham , there the feoffor shall have the land as a distress , and the free-hold is not out of the feoffee . fenner : the book proves the contrary ; for the feoffor had an action of debt for the rent . mich. , . eliz. in the common pleas. in a formedon , the tenant pleaded a fine with proclamations : the plaintiff replyed , no such record . it was moved , that the record of the fine which remained with the chyrographer , did warrant the plea ; and the record which did remain with the custos brevium did not warrant the plea : and both the records were shewed in court ; and to which the court should hold , was the question ? shuttleworth , to that which was shewed by the custos brevium : and he cited the case of fish and brocket , where the proclamations were reversed because that it appeared by the record which was shewed by the custos brevium , that the third proclamation was alledged to be made the seventh day of june ; which seventh day of june was the sunday : and yet hee said , it appeared by the record certified by the chyrographer , that it was well done , and yet the judgment reversed . rodes justice there is no such matter in the same case . and . el. by all the justices and barons of the exchequer , in such case the record which remains with the custos brevium shall be amended , and made according as it is in the record of the office of chyrographer . windham agreed . and afterwards the said president was shewed , in which all the matter and order of proceedings was shewed and contained , and all the names of the justices who made the order . and by the command of the justices it was appointed , that the said president should be written out , and should remain in perpetuam rei memoriam . and the reason of the said order is there given , because the note which remains with the chyrographer is principale recordum . mich. , . eliz. in the common pleas. . an infant was made executor , and administration was committed unto another , durante minore aetate of the executor ; and that administrator brought an action of debt for money due to the testator , and recovered , and had the defendant in execution ; and now the executour is come of full age . fenner moved that the defendant might be discharged out of execution , because the authority of the administrator is now determined ; and he cannot acknowledge satisfaction , nor make acquittances &c. windham justice , although the authority ▪ of the plaintiffe bee determined ; yet the recovery and the judgement do remaine in force . but perhaps you may have an audita querela . but i conceive , that such an administrator cannot have an action ; for he is rather as a bayliff to the infant executor , then an administrator . rodes agreed ▪ with him , and he said , i have seen such a case before this time , viz. where one was bound to such a one to pay a certaine sum of money to him , his ▪ heirs , executors , or assignes : and the obligee made an infant his executor , and administration was committed during his minority , and the obligor paid the money to that administrator ; and it was a doubt whether the same was sufficient , and should excuse him , or not . and whether he ought not to have tendred the money to them both . fenner , that is a stronger case then our case : one who is executor of his own wrong , may pay legacies , and receive debts , but he cannot bring an action . windham , doth it appear by the record , when the infant was made executor , and that administration was committed as before ? fenner , no truely . windham , then you may have an audita querela upon it . fenner said , so we will. note hil. . eliz. in the exchequer . miller and gores case , an infant pleaded in a scire facias upon an assignement of bonds to the queen , that saint-johns and eley were administrators during his minority . and it was holden by the court to be no plea. but he ruled to answer as executor . mich. , . eliz. in the common pleas. suggestion was made , that a coroner had not sufficient lands within the hundred ; for which a writ issued forth to choose another ; and one was chosen . it was moved by serjeant snag , if the●eby the first coroner did cease to be coroner presently , untill he be discharged by writ . rodes and windham justices , he ceases presently , for otherwise there should be two officers of one coronership , which cannot be . also the writ is quod loco i. s. eligi facias , &c. unum coronatorem ; and he cannot be in place of the first , if the first do not cease to be coroner . so if any be made commissioners , and afterwards others are made commissioners in the same cause , the first commission is determined . snagg said , that in the chancery they are of the same opinion ; but fitz. nat. brevium . n. is , that hee ought to be discharged by writ . mich. , eliz in the common pleas. in an action of debt brought against lessee for years for rent ; he pleaded , that the plaintiff had granted to him the reversion in fee , which was found against him . walmesley serjeant moved , whether by that plea he had forfeited his terme or not . rodes and windham justices , he shall not forfeit his term ; and rodes cited . e. . judgement . where in a writ of waste the tenant claimed fee , and it was found against him , that he had but an estate for life , and yet it was no forfeiture . fenner and windham , it is a strong case , for there the land it selfe is in demand , but not so in our case . rodes , the tenant shall not forfeit his estate in any action by claiming of the fee-simple , but in a quid juris clamat . walmesley and fennèr , where he claimes in fee generally , and it is found against him , there perhaps hee shall forfeit his estate ; but where he shewes a speciall conveyance , which rests doubtfull in law , it is no reason that his estate thereby should bee forfeited , although it be found against him . rodes , . r. . quid juris clamat . the tenant claimed by speciall conveyance , and yet it was a forfeiture . but in the principall case at bar , he and windham did agree cleerly , that it was no forfeiture . mich. , eliz. in the common pleas. an action upon the case was brought , because that the defendant had spoken these words , viz. that the plaintiffe hath said many a masse to j. s. &c. anderson chief justice , primâ facie , did seem to incline , that no action would lie for the words , although that a penalty is given by the statute against such masse-mongers . for he said , that no action lieth for saying , that one hath transgressed against a penall law. periam justice contrary . anderson , if i say to one , that he is a disobedient subject , no action lieth for the words . windham justice , that is by reason of the generality . puckering , no action lieth for the slandering of one in a thing , which is but malum prohibitum . periam , the saying of masse is malum in se . puckering , if i say to one , that he hath eaten flesh on fridayes , an action doth not lie for that . periam , is that like this case ? note , the declaration was uncertaine , viz. the places where the masses were said , &c. were not alledged , nor the day when they were said , &c. and therefore periam said , that the action did not lie , for it might be that the masses were celebrated in france , or some other place out of the kingdom : and the statute doth not appoint any penalty , if they be not indicted thereof within the year and a day , &c. mich. , . eliz. in the common pleas. an act of common councell , according to the custome of the city of london , was , by which it was decreed , that none should bring any sand , nor sell , nor use any within the city or suburbs of london , but that only which was taken out of the river of thames , &c. and that if any did the contrary , that he should forfeit for the first fault five pound , and for the second fault ten pound , to be recovered in an action of debt , wherein no essoine , protection , or wager of law should be allowed . and such a plaint , for the forfeiture of one hundred and twenty pound , was removed out of london into the common pleas by a writ of priviledge : and it was debated amongst the justices and serjeants , whether the plaint should be remanded or not . anderson chief justice , windham and periam justices , did greatly speak against the said act , not only for the matter and substance of the act , but also for the forme of it . . they were informed by snagg serjeant , that the said thames sand was a great deal worse then the land sand , and yet the price of the same was greater , and the measure of it lesse : for of the thames sand there were but eleven bushels to make a load : and of the other sand there were eighteen bushels , which , he said , was a very great deceit and mischief . and . they said , that is against reason , that any freeman should be so restrained from merchandizing and selling . and also it might concerne the inheritances of some who might have sand in their lands . also the said justices said , that they were very presumptuous in making acts so parliament-like , viz. that no essoine , protection or wager of law should be allowed , &c. and that they did arrogate to themselves too high authority : and they stirred up the plaintiffe at the next parliament to exhibite a bill against them for it , and to sue them in the king's bench for their presumption and insolency in that their dealing ; and said , that it would shake their liberties , and grow to a greater matter then they thought or were aware of . and thereupon anderson cited the case . h. . where sir edward knightly , executor of sir william spencer , made certain proclamations in certain townes , that creditors coming in , and proving their debts ; that they should be paid ; and for that presumption hee was committed to the fleet , and was fined five hundred marks . and hee said , that such were the misdemeanors of empson and dudl●y . mich. , . eliz. in the common pleas. boxe and mounslowe's case . thomas boxe brought an action upon the case against john mounslowe , that the defendant had slandred him , in saying , that the said thomas boxe is a perjured knave , and that he would prove , that he the said thomas boxe had forsworne himselfe in the exchequer , &c. and supposed the said words to be spoken in london . feb. . el. et praedict ' john. mounslowe , per johannem lutrich , atturnat ' suum venit & defendit vim & injuriam quando , &c. et dicit quod praedict ' thomas boxe actionem suam versus cum habere non debet , quia dicit , quod praedict ' thomas boxe being one of the collectors of the subsidies before the speaking of the said words , viz. m. . and . eliz. in curia scaccarii apud westminst ' . did exhibit a bill against the said john mounslow , containing , that the said john being assessed in ten pounds in goods , the said thomas boxe came to him , and demanded sixteen shillings eight pence , which the said john monuslow did refuse to pay , &c. and that demand and refusall was supposed to be in london in breadstreet . et pro verificatione praemissorum ad tunc & ibidem sacrament ' corporale per barones praefat ' thomas boxe praestito . the said thomas boxe swore the said bill in substance was true , ubi revera the said john mounslow did not refuse , &c. per quod the said john mounslow postea , viz. praedicto tempore quo &c. dixit de praefato thoma boxe praedicta verba , &c. prout ei bene licuit . the plaintiffe replied , that the defendant spake the words de injuria sua propria , absque causa per praefat ' johannem mounslow superius allegata , &c. et hoc petit quod inquiratur per curiam : praedict ' defendens similiter . and a venire facias was awarded to the sheriffe of london , and it was found for the plaintiffe , and damages four hundred pound . and now it was moved in arrest of judgement , that there was no good triall , nor the issue well joyned ; for the issue doth consist upon two points tryable in severall counties : viz. the oath which was in the exchequer , and that ought to have been tried in middlesex , and the matter which he affirmed by his oath to be , viz. the demand and refusall to pay the subsidie , &c. and that was alledged to be in london , and therefore is there is to be tried . and the issue viz. de injuria sua propria absque tali causa goeth to both ; for the ubi revera will not mend the case , as periam justice said , and both are materiall ; for the defendant ought to prove , that the plaintiffe made such oath , and also that the substance and matter of the oath was not true , for otherwise the plaintiffe cannot be proved perjured . and therefore the counties here ( if they might ) should have joyned in the triall . and the opinion of the court was against the plaintiffe ; for anderson and windham said , that if this issue could have been tried by any one of the counties without the other , it should be most properly and naturally tried in middlesex , where the oath was made ; for the perjury ( if any were ) was in the exchequer . but they said , that the issue here was ill joyned , because it did arise upon two points triable in severall countries , which could not joyne : whereas the plaintiffe might have taken issue upon one of them well enough , for each of them did go to the whole ; and if any of them were found for the plaintiffe , that he had sufficient cause to recover . gaudy moved , that it should be helped by the statute of jeofailes , which speakes of mis-joyning of issues . anderson , the issue here is not mis-joyned ; for if the counties could joyne , the issue were good : but because that the counties cannot joyne , it cannot be well tried : but the issue it selfe is well enough . windham and rodes were of the same opinion , that it was not helped by the statute : but periam doubted it . anderson said , that if an issue triable in one countie be tried in another , and judgement given upon it , it is errour . and afterwards lutrich the atturney said , that it was awarded , that they should re-plead , nota quia mirum : for . the statute of . h. . cap. . speaks of mis-joyning of processe , and mis-joyning of issues ; and admit that this case is not within any of those clauses , each of them being considered by it selfe ; yet i conceive , it is contained within the substance and effect of them , being considered together . also i conceive , that it is within the meaning of both statutes viz. . h. . cap. . and . eliz. cap. . for i conceive the meaning of both the statutes was to oust delayes , circuits of actions and molestations , and that the partie might have his judgement , notwithstanding any defect , if it were so , that notwithstanding that defect sufficient title and cause did appeare to the court. and here the plaintiffe hath sufficient cause to recover , if any of the points of the issue be found for him . for if it bee found , that the matter and substance of the oath be found true ( which might be tried well enough by those in london ) the plaintiffe hath cause to recover ; wherefore i conceive , that the verdict in london is good enough , and effectuall : and note , that rodes said that hee was of councell in suh a case in the kings bench betwixt nevell and dent. mich. , . eliz. in the common pleas. in an action of trespasse , the defendant pleaded , that at another time before the trespasse , he did recover against the same plaintiffe in an ejectione firme , and demanded judgement . and the opinion of the whole court was , that it is a good plea , primâ faci● , and that the possession is bound by it ; for otherwise the recovery should be in vaine and uneffectuall . and anderson chiefe justice , said , that if two claime one and the same land by severall leases , and the one recovereth in an ejectione firme against the other ; that if afterwards the other bring an ejectione firme of the same land , the first recovery shall be a barre against him . rodes said , that hee can shew authority , that a recovery in an ad terminum quem praeteriit shall bind the possession . mich. , . eliz. in the common pleas. in trespasse , the defendant did justifie as bailiffe unto another , the plaintiffe replied that he took his cattell of his own wrong ; without that that he was his bailiffe . anderson chiefe justice , if one have cause to distreine my goods , and a stranger of his own wrong , without any warrant or authority given him by the other , take my goods not as bailiff , or servant to the other . and i bring an action of trespasse against him ; can he excuse himself , by saying , that he did it as my bailiffe or servant ? can he so father his mis-demeanours upon another ? he cannot ; for once he was a trespasser , and his intent was manifest . but if one distrein as bailiffe , although in truth , he is not bailiffe ; if after he in whose right he doth it , doth assent to it , he shall not be punished as a trespassour ; for that assent shall have relation unto the time of the distresse taken ; and so is the book of . h. . and all that was agreed by periam . shuttleworth , what if hee distraine generally , not shewing his intent , nor the cause wherefore he distrained ? &c. ad hoc non fuit responsum . rodes came to anderson , and said unto him , if i having cause to distrain , come to the land , and distraine , and another ask the cause why i do so ? if i assigne a cause not true or insufficient , yet when an action is brought against me , i may avow or justifie , and assigne any other cause . anderson , that is another case ; but in the principall case clearly the taking is not good ; to which rodes agreed . mich. , . eliz. in the common pleas. hoodie and winscomb's case . in an attaint brought by hoodie against winscombe , &c. one of the grand jury was challenged , because he was a captain , and one of the petie jury , was his lieutenant ; and it was holden by the whole court , that that was no principall challenge . windham , it hath been holden no principall challenge , notwithstanding that one of the jurours was master of the game , and one of the petit jury was keeper of his park . and in that case , it was holden by all the justices , that if a man make a lease , rendring rent upon condition , that if the rent be behind , and no sufficient distresse upon the land , that then the lessor may re-enter ; if the rent be behind , and there be a piece of lead , or other thing hidden in the land , and no other thing there to be distrained , the lessor may re-enter ; for the distresse ought to be open , and to be come by ; for if it should be otherwise said a sufficient distresse , one might inclose money , or other things within a wall ; and thereby the lessor should be excluded of his re-entry . mich. , . eliz. in the common pleas. in a quare impedit , the plaintiffe counted , that the defendant being parson of the church in question , was presented to another benefice , and inducted aprilis , and that the other church became void , &c. the defendant said , that he was qualified at such a day , which was after aprilis , without that , that he was inducted aprilis . and the court was of opinion ( anderson being absent ) that it was no good traverse , for he ought to have said generally ; without that , that he was inducted before the day in which he is alledged to be qualified . as if one declare in trespasse done aprilis , and the defendant plead a release . feb. he ought to traverse without that , that the trespasse was done before the release , by periam justice . mich. , . eliz. in the common pleas. hales and home's case . in an avowry for damage feasance , one pleaded a lease made unto him by i. s. the other said , that before the lease , ● . s. did enfeoff him ; the other replied and maintained the said lease absque hoc quod j. s. sei●itus feoffavit . gawdy , the traverse is not formall , for the word seisitus is idle , and ought to be left out ▪ for he cannot enfeoff if that he were not seised ; and it hath never been seen that the seisin in such case hath been traversed ; but generally in pleading the traverse hath been absque hoc , that feoffavit , without speaking of seisin , which is superfluous . and so was the opinion of the whole court. mich. , . eliz. in the common pleas. the queen granted lands unto the earle of leicester by her letters patents ; the patentee made a lease of the land unto another . shuttleworth moved it to the court , whether the patentee ought to shew the letters patents ; and he conceived , he need not , because he hath not any interest in them , but the same do belong only to the earle . as if a rent be granted to one in fee , and he taketh a wife and dieth , and the wife bringeth a writ of dower , she is not bound to shew the first deed by which the rent was granted to her husband , because the deed doth not belong unto her . so hee who sues for a legacie , is not tied to shew the will , because the same belongs to the executor , and not him . periam justice , the cases are not alike , for they are strangers and not privies , but the lessee in the principall case deriveth his interest from the letters patents , and therefore he ought to shew them . rodes justice remembred throgmorton's case , com. . a. where a lease was made by an abbot to j. s. and afterwards the same abbot made a lease unto another to begin after the determination of the first lease made to j. s. and exception was taken , that he ought to have shewed the deed of the first lease , and the exception was disallowed by the court. periam , that case , is not like this case ; and he said , that , as he conceived , the lessee in this case ought to shew forth the letters patents ; and if any books were against his opinion , it was marvellous . mich. , eliz. in the common pleas. one intruded after the death of tenant for life , and died seised , and the land descended to his heire ; and a writ of intrusion was brought in the per against the heir ; and gawdy serjeant prayed a writ of estrepment against the tenant . and first the court was in doubt what to do ; but afterwards when they had considered of the statute of gloucester , cap. . in the end of it , anderson said , if the writ be in the per , take the writ of estrepment ; but if the writ be not in the per , we doubt whether a writ of estrepment will lie or not . mich. & eliz. in the common pleas. wood against ash and foster . certain lands with a stock of sheep was leased by indenture ; and the lessee did covenant by the same indenture , to restore unto the lessor at the end of the terme , so many sheep in number as he took in lease , and that they should be betwixt the age of two and four years . afterwards the lessee granted the same stock unto a stranger , viz. to elizabeth winsor , who was the wife of ashe ; whereas in truth , all the ancient stock was spent . and it was holden by all the justices upon an evidence given unto a jury at the bar , that when such a stock of sheep is leased for years , the principall property doth remain in the lessor , as long as those sheep which were in esse at the time of the lease , should live ; but if any of them do die , and other come in their roomes , then the property of those new sheep doth belong to the lessee ; and therefore they held , that the second lessee should have so many of the sheep as were left , and did remaine at the end of the lease , and no other . and yet it was objected by walmesley , that the stock was entire , and that as soon as any other came in the room of the ancient sheep which were dead , that they were accounted part of the same stock ; and although they be all dead , and so changed successively two or three times ; yet ( he said ) it shall be said the same stock . and he resembled the same to the case of a corporation , which although all the corporation die , and other new men come in their places , it shall be said the same corporation . but notwithstanding his opinion , all the justices were of opinion as before . walmesley said , that agreeing with his opinion was the opinion of all the civill lawyers : but the court was angry , and rebuked him , that he did in such manner crosse their opinions , and that he cited the opinion of civilians in our law ; and they resolved the contrary ; and they said , there is a difference betwixt the lease of other goods ; and a lease of live cattel ; for in the first case if any thing be added for mending , repairing , or otherwise by the lessee , at the end the lessor shall have the additions , for of them he hath alwayes the property , and they are annexed to the principall ; but lambs , calves , &c. are severed from the principall , and are the profits arising of the principall , which the lessee ought to have , else he should pay his rent for nothing : and as to the issue upon the cepit by foster , it was shewed , that he did but stay the sheep in his manor , where he had fellons goods , waifes , and strayes , and that the sheep were stayed upon a huy and cry ; and that he had taken bond of one , to whom he had delivered the sheep , to render them to him who had the right of them . and that stay was holden by the court to be out of the point of the issue ; for that he who doth stay , doth not take . mich. , . eliz. in the common pleas. . the heirs of sir roger lewknor and ford's case . intratur pasch . . el. rot. . sir roger lewknor , seised of wallingford park , made a lease thereof unto ford for years , and died : the lessee granted over his term to another , excepting the wood : the term expired ; and now an action of waste was brought against the second lessee by the two coparceners and the heir of the third coparcener , her husband being tenant by the courtesie . and shuttleworth and snag serjeants did argue , that the action would not lie in the form as it was brought . and the first exception which was taken by them was , because the action was generall , viz. quod fecit vastum in terris quas sir roger lewknor pater praedict ' the plaintiffs , cujus haeredes ipsae sunt , praefat ' defend ' demisit , &c. and the count was , that the reversion was entailed by parliament unto the heirs of the body of sir roger lewknor ; and so they conceived , that the writ ought to have been speciall , viz. cujus haeredes de corpore ipsae sunt . for they said , that although there is not any such form in the register , yet in novo casu novum remedium est apponendum : and therefore they compared this case to the case in fitz. nat. brevium . c. viz. if land be given to husband and wife , and to the heirs of the body of the wife , and the wife hath issue and dieth , and the husband committeth waste , the writ in that case and the like , shall be speciall , and shall make speciall recitall of the estate : and so is the case . h. . . where cestuy que use makes a lease , and the lessee commits waste : the action was brought by the feoffees , containing the speciall matter ; and it was good , although there were not any such writ in the register , cujus haeredes de corpore : and we are not to devise a new form in such case , but it is sufficient to shew the speciall matter to the court. also the words of the writ are true ; for they are heirs to sir roger lewknor : and the count is sufficient pursuant and agreeing to their writ : for they are heirs , although they are not speciall heirs of the body : and so the court was of opinion that the writ was good , notwithstanding that exception . and anderson and periam justices , said , that the case is not to be compared to the case in f. nat. br. . c. for there he cannot shew by whose demise the tenant holdeth , if he doth not shew the speciall conveyance ; viz. that the land was given to the husband and wife , and the heirs of the body of the wife : nor is it like unto the case of . h. ● . . for the same cause : for alwayes the demise of the tenant ought to be especially shewed and certainly ; which it cannot be in these two cases , but by the disclosing of the title also to the reversion . another exception was taken , because that the writ doth suppose quod tenuerunt , which ( as they conceived ) is to be meant , that tenuerunt joyntly ; whereas in truth they were tenants in common . walmesley contrary ; because there is not any other form of writ : for there is not any writ which doth contain two tenuerunts . and the words of the writ are true , quod tenuerunt , although tenuerunt in common . but although they were not true , yet because there is no other form of writ , it is good enough . as littleton , if a lease be made for half a year , and the lessee doth waste , yet the writ shall suppose , quod tenet ad terminum annorum : and the count shall be speciall , . ed. . . e. . . if the lessee doth commit waste , and granteth over his term , the writ shall be brought against the grantor , and shall suppose , quod tenet ; and yet in truth , he doth not hold the land. . ed. . and fitz. if one make divers leases of divers lands , and the lessee doth waste in them all , the lessor shall have one writ of waste supposing quod tenet ; and the writ shall not contain two tenets : and such was also the opinion of the court. the third exception was because that the writ was brought by the two coparceners , and the heir of the third coparcener , without naming of the tenant by the courtesie . and thereupon snagg cited the case of . ed. . that where a lease is made for life , the remainder for life , and the tenant for life doth waste , he in the reversion cannot have an action of waste during the life of him in the remainder . so in this case , the heir of the third coparcener cannot have waste , because the mean estate for life is in the tenant by the courtesie : and to prove that the tenant by the courtesie ought to joyn , he cited . e. . which he had seen in the book it self at large , where the reversion of a tenant in dower was granted to the husband , and to the heirs of the husband , and the tenant in dower did waste , and they did joyn in an action of waste , and not good . and so is . e. . . f. n. b. . f. and . h. . . a. walmesley contrary : for here in our case there is nothing to be recovered by the tenant by the courtesie , for he cannot recover damages , because the disinheresin is not to him ; and the term is expired , and therefore no place wasted is to be recovered : and therefore it is not like unto the books which have been cited ; for in all those the tenant was in possession , and the place wasted was to be recovered , which ought to go to both according to their estates in reversion . but it is not so here ; for in as much as the term is expired , the land is in the tenant by the courtesie , and so he hath no cause to complain . and such also was the opinion of the whole court , viz. that because the term was ended , that the writ was good notwithstanding the said exception . then concerning the principall matter in law , which was , whether the writ were well brought against the second lessee , or whether it ought to have been brought against the first lessee ; it was argued by shuttleworth , that it ought to have been brought against the first lessee ; for when he granted over his term , excepting the trees , the exception was good : ergo , &c. for when the land upon which the trees are growing , is leased out to another , the trees passe with the lease as well as the land , and the property of them is in the lessee during the term ; and therefore when he grants his term , hee may well except the trees , as well as the first lessor might have done . and that is proved by the statute of marlebridge , cap. . for before that statute the lessee was not punishable for cutting downe the trees , and that statute doth not alter the properties of the trees , but onely that the lessee shall render damages if he cut them down , &c. also the words of the writ of wast proveth the same , which are , viz. in terris , domibus &c. sibi dimissis . also the lessee might have cut them down for reparations , &c. and for fire-wood , if there were not sufficient underwoods ; which he could not have done , if the trees had been excepted . and in . h ▪ . in brooke , it is holden , that the excepting of the trees , is the excepting of the soile . and so is . e. . . where one made a lease , excepting the woods , and afterwards the lessee did cut them down , and the lessor brought an action of trespasse quare vi & armis clausum fregit , &c. and it was good , notwithstanding that exception was taken to it . and it is holden in . e. . . by fairfax and littieton , that if the lessee cut the trees , that the lessor cannot carry them away , but he is put to his action of waste . fenner and walmesley serjeants contrary : and they conceived , that the lessee hath but a speciall property in the trees , viz. for fire-boot , plough-boot , house-boot , &c. and if he passe over the lands unto another , that he cannot reserve unto himselfe that speciall property in the trees , no more then he who hath common appendant can grant the principall , excepting and reserving the common ; or grant the land , excepting the foldage . the grand property of the trees doth remain in the lessor , and it is proved by . h. . . and . h. ▪ . &c. if tenant for life , and he in the reversion , joyne in a lease ; and the lessee doth wast , they shall joyne in an action of wast , and tenant for life shall recover the free-hold , and the first lessor the damages ; which proves that the property of the trees is in him . as to that that he was dispunishable at the common law , that was the folly of the lessor ; and although it was so at the common law , yet it is otherwise at this day . for when the statute sayes , that the lessor shall recover damages for the wast , that proves sufficiently that the property of the trees is in him , as the statute of merton cap. . enacts . that if the lessor do approve part of the wast , leaving sufficient for the commoners ; and they notwithstanding , that bring an assize , they shall be barred in that case ; and the lord may have an action of trespass against them if they break the hedges by force of that statute , as it hath been adjudged ; for the intent of the statute was , to settle the inheritance of the land approved without interruption of the commoners : and so in this case . but note , that by the statute of marlebridge , the lessor shall recover damages for the houses , &c. which are wasted , &c. and yet a man cannot inferre thereupon , that therefore the lessee hath no interest or property in them ; and such interest hath he in the trees , notwithstanding the words of the statute , ( which is contrary to this meaning , as it seems . ) and therefore quaere , if there be any difference betwixt them , and what shall be meant by this word [ property . ] but the damages are given by the statute in respect of the property which the lessor is to have in reversion , after the lease determined . anderson chiefe justice , the lessor hath no greater property in the trees , then the commoner hath in the soile . walmesley , . h. . . and . h. . . the lessor may give leave to the lessee to cut the trees , and the same shall be a good plea in an action of wast ; and the reason of both the books , is , because the property of them is in the lessor ; and to this purpose the difference is taken in . h. . betwixt gravell and trees . . h. . if a prior licence the lessee to cut trees , the same shall discharge him in wast , brought by the successour . but if the lessee cutteth down the trees , and then the prior doth release unto him , the same shall not barre the successour ; and so is . h. . also he cited culpepers case , eliz. and . e. . statham , and . ass . . to prove that the lessor shall have the wind-falls . if a stranger cutteth down trees , and the lessee bringeth an action of trespasse , he shall recover but according to his losse , viz. for lopping and topping . as to that which was said , that if the lessee cut down trees , that the lessor cannot take them away , that is true ▪ for that there is a contract of the law , that if the lessee doth cut them down , that he shall have the trees ; and the lessor shall have treble damages for them . also he said , that the trees are no part of the thing demised , but are as servants , and shall be for reparations . as if one hath a piscarie in the land of another man , the land adjoyning is as it were a servant , viz. to drie the nets ; so , if one have conduit-pipes lying in the land of ather , he may dig the land for to mend the pipes , and yet he hath no interest , nor free-hold ; to that which was said , that by the excepting of the trees , the land upon which they stood is excepted ; it is true , as a servant to the trees , for their nourishment , but not otherwise ; for if the lessor selleth the trees , he afterwards shall not meddle with the land , but it shall be wholly in the lessee , quia sublata causa , tollitur eff●ctus ; and if the lessee tieth a horse upon the land , where the trees stood the lessor may distraine the same for his rent , and avow as upon land within his distress , and fee , and holden of him ; and he said , that the lessor may grant the trees , but so cannot the lessee ; and therefore he said , that the property is in the lessor , and not in the lessee : also if the lessor granteth them , they passe without atturnment : but contrary , if the lessor had but a reversion in them : also if the lessor cutteth them down , his rent shall not be apportioned , and therefore they are no part of the thing demised : for . h. . and temps e. . fitz. waste , in two or three places it is holden , that if the waste be done sparsim in a close or grove , the lessor shall recover the whole : then admit that the trees excepted are cut down sparsim ; if the exception shall be good , how shall the thing wasted be recovered , and against whom ? quod nota . anderson chief justice did conceive that the exception was void , and that the action was well brought ; and he said , it was a knavish and foolish demise ; and if it should be good , many mischiefs would follow , which he would not remember . windham justice was of the same opinion , and he said , the lessor might have excepted them , and so take from the lessee his fire wood and plough bote , &c. but the lessee could not grant his estate excepting the trees , because he had but a speciall interest in them , viz. for his fire-bote , &c. which shall go with the land . periam justice agreed , that as to such a speciall property , none can have it , but such a one who hath the land ; and therefore the exception of the wood by the lessee was void . but as to the other things , perhaps if they were apple trees , or other fruit-trees , the exception had been good . also although the trees are not let directly , yet they are after a sort by a mean , as annexed to the land ; and if the action be brought against him who made the exception , he cannot plead that they were let unto him , and therefore he doubted of the exception . rodes justice also said , that he doubted of the exception ▪ and he said , that the book of ▪ e. . is , that the lessee should have the wind-falls , and he did not much regard the opinion of statham . but anderson chief justice was of opinion , that the lessor should have the wind-falls . note , the case was not adjudged at this time . hill. . eliz. in the king's bench exceptions were taken by fuller to an indictment upon the statute of . eliz. cap. . for the omitting of the crossing of a child in baptising of him . the case was , that a minister out of his cure , at another church , viz. at chelmesford in essex , did baptize a child without the sign of the crosse ; for which he was indicted . the first exception was , that the statute speaks of ministers which do not use the administring of the sacrament in such cathedrall churches , or parish churches , as he should use to administer the same ; that this was not the parish church in which he should use the same . suit justice was of opinion , that it was good , notwithstanding that ; for otherwise the statute might be greatly defrauded . the words of the statute are farther [ or shall wilfully or obstinately , standing in the same , use any other rule , ceremony , order , forme , &c. ] . he took another exception upon those words ; for the omitting of the crossing only is put , and it is not shewed that he used any other rite or ceremony , &c. for there ought to be some positive thing . . he doth not shew the place or parish where he persisted in it , and that is materiall and issuable . the fourth exception was , because it was inquisitio c●pta coram johanne peter , waltero mildmay , and so named four of them , by vertue of a commission directed to them and to others , and doth not shew what others , nec quod illi fuerunt praesentes ; and then if the commission were to them all jointly , and two only were present , then it was coram non judice , and so void . . the statute saies , that if any parson or vicar ; but doth not say , being minister dei. the sixth was , that it was at another church , &c. wray chief justice , if this evasion should be allowed , the statute were not to the purpose . the seventh was , that it doth not shew where the persisting was , for that is a speciall thing , and materiall and issuable . wray chief justice conceived , that that only was a materiall exception , and that the other exceptions were but frivolous ; and were not good . hill. . eliz. in the kings bench. warren's case . one warren demanded by a writ of debt in the common pleas forty pound , and upon his declaration did confess himselfe satisfied of twenty pound , and thereupon error was brought in the king's bench : and the judgement reversed , because by his declaration he had abated his writ ; and he ought to have judgement according to his writ , and not according to his declaration . the error assigned was in the outlawry ; and it was holden by all the justices , that if the principall record be reversed for error , that the outlawry which is grounded upon it shall be reversed also . hill. . eliz. in the kings bench. roote 's case . the case was in a prohibition touching tithes ; and the libell in the spirituall court was for corn and hay , and other things : and the tenant of the land did prescribe to pay in one part of the land , the third part of the tenth ; and in another part , the moity of the tenth of corn , for all manner of tithes . and the court did incline that the same was a good prescription . and a prohibition was granted to the ecclesiasticall court. hill. . eliz. in the king 's bench. a man was possessed for the terme of six years of a tavern in london , and leased the same unto another for three years ; and it was convenanted betwixt them , that during the three years , quolibet mense , monthly the lessee should give an account to the lessor of the wine which he sold , and should pay unto him for every tun sold , so much money . and afterwards the lessor granted the three years which were remaining of the six years to another ; and he did request the lessee to account , and he would not ; whereupon he brought an action of covenant ; and the defendant pleaded , that he had accounted to the assignee of the three years : and upon that there was a demurrer joyned . and the better opinion of the court was , that it was no plea , because it was not a covenant , which did go with the land , or the reversion ; but was a collaterall thing , and did not pass by the assignment of the three years . hill. . eliz. in the king 's bench. it was adjudged . that the bringing of a writ of error to reverse a fine by an infant , during his nonage , is not sufficient ; but the fine by judgement in the writ of error must be reversed during his nonage . hill. . eliz. in the common pleas. widall and sr. john ashton's case . a writ of error was brought by widall , against sr. john ashston , because in the other action being an action of wast : the plaintiff there did declare , that he was seised , and so seised demisit pro termino annorum , &c. and did not shew of what estate he was seised ; and yet he did suppose that it was ad exhaeredationem ejus , &c. and the same by beamount was taken for an exception : as . h. . a man pleaded a feoffment to two & haeredibus , and doth not say , suis , it is uncertain : and in the principal case it shall be supposed , that he hath but an estate for life , for it shall not be intended that he hath an estate of inheritance , without expressing of words to carry an inheritance . as . ass . if i grant a rent to i. s. and do not name what estate he shall have in it , he shall have but an estate for life . but he said , that the presidents are , that if the word [ seised ] had been left out , it had been good enough ; for by the book of entries , a man may say [ demisit ] without saying that he was seised & demisit : but if a man will plead a thing which is not necessary to be pleaded , and mistake it , it shall make his plea naught : as in patridges case : where a suite was upon the statute of maintenance , it is sufficent to say , contra formam statuti . but if he will plead specially , the day and place of the statute , and mis-plead it , it makes all naught . suit justice , i conceive that , that is a fault incurable . but upon the other side it was argued , that in . h. . it is holden , that he might plead quod demisit , without that , that he was seised and demisit , as there in an action of debt . and therefore it is but surplusage in the principal case . vide . e. . a good case , where surplusage shall not hurt , because it is not traversable : and he urged that by the statute of . el. the declaration doth not abate for matter of form : and he said that counts and declarations shall be taken by intendment ; and it shall be intended , that if bringeth wast , that he hath such an estate , that he may maintain such action . in adams case , in the commentaries , one shewed that such an abbot was seised , and that the land came unto the king by dissolution , and that the king being seised , did grant the same , and did not shew of what estate the king was seised , and yet it was holden good . see a good case to this purpose , . e. . formedon . and he said that the defendant had pleaded nul wast fait , and therefore he had by his plea affirmed the declaration to be good . beamount , he ought to have said , reversione inde sibi & haeredibus , &c. clenche justice , i conceive that the statute of . el. helps that . suit justice , no truly . it was adjourned . hill. . eliz. in the common pleas. an action of covenant was brought by a man , against another who had been his apprentize . the defendant pleaded that he was within age . the plaintiff did maintain his action by the custome of london : where one by covenant may binde himself within age ; and exception was taken to it , that that was a departure . daniel , it is no departure , for by . r. . an infant brought an action against gardian in socage , and the gardian pleaded , that the plaintiff was within age ; and the plaintiff did maintain his declaration , that by the custome of such a place , an insant of . yeares might bring an action of account against his gardian in socage , and it was there holden to be no departure . i conceive , that an infant cannot have an account against his gardian , before his full age : but i conceive that they held , that it was by statute , that an infant should not have an account against gardian in socage , until he was of the age of . yeares . wray chief justice was of opinion , that it was no departure ; for he said , it should be frivolous to shew the whole in his declaration . viz. that he was an infant ; and that by custome he might make a covenant which should beinde him ; but quaere of his opinion , for that many doubt of it . vide the case . r. . hill. eliz. in the king's bench coney's case an action of trespass was brought against john coney , for digging of the plaintiffs close , and killing of . coneys there : the defendant pleaded as to all the trespas , but killing of two coneys , not guilty ; and as to them he said , that the place where &c. the trespass is supposed , is a heath in which he hath common of pasture , and that he found them eating of the grass , and that he killed them and carried them away , as it was lawfull for him to do , &c. cook , the point is ; whether a commoner having common of pasture , may kill the coneys which are upon the ground ; and he said , hemight not . and first he said , it is to be considered what interest he who hath the freehold , may have in such things as are ferae naturae . secondly , what authority a commoner hath in the ground in which he hath common : to the first , he said , that although such beasts are ferae naturae , yet they are reduced to such propertie when they are in my ground , by reason of my possession , which i then have in them , that i may have an action of trespass against him who takes them , as . e. . . if one have deer in his park , & another taketh them away , he may have an action of trespas forthe taking . . h. . if a forrester follow a buck , which is chased out of the park or forrest , although that he who hunteth him , killeth him in his own ground , yet the forrester or keeper may enter into his ground , & retake the deer , for the propertie and possession which he hath in it by the pursuit . . h. . . it is holden , that if a wilde beast go out of the park , then the owner of the ground hath lost the propertie in it . brook thereupon collects , that he had a propertie in it whilest it was in his park . . e. . . it is doubted whether a man can have propertie in things which are ferae naturae ; but . h. . . it is holden , that an account lieth for things ferae naturae . vide . h. . . the bishop of londons case , and . h. . . as long as they are in his ground , they are in his possession , and he shall have an action of trespass for the taking of them , and the writ shall be damas suas , by newton . and in the register . it is quare ducent's cuniculos suos precij &c. cepit . but it is said , that he hath common there : what then ? yet he cannot meddle with the wood , sand , grass , but by taking of the same with the mouthes of his cattel : if he who hath the freehold bring an action against the commoner for entring into his land ; if he plead , not guilty , he cannot give in evidence , that he hath common there . ▪ ass . a commoner cannot put in cattel to agist : so is . h. . and of late it was holden in this court , that where the commoners did prescribe , that the lord had used to put but so many of his cattel upon the lands ; that it was a void prescription . godfrey , contrary . that it is lawfull for the commoner to kill them : and he agreed the cases which were put by cook and he said , that the owner of the ground had not the very propertie , but a kind of propertie in them . . h. . and f. n. b. if the writ of trespass be , quare cuniculos suos , &c. the writ shall abate ; and yet he hath a propertie in them , or rather a possession of them . i grant , that against a stranger he might have this action of trespas , but not against the commoner : for he hath a wrong done unto him , by their being upon the land , and therefore he may kill them , although he may not meddle with the land , because he hath not an interest in it ; and yet he may meddle with the profit of it : as . h. . a commoner may distrain damage feasant . e. . coneys dig the ground and eate the grass of the commoner , &c. i grant , that it is not lawfull for the tenant for life for to kill the coneys of him , who hath a free warren in the ground . for if a man bring an action of trespas , quare warranem suum intravit & cuniculos suos cepit , &c. it is no plea , that it is his free-hold . l. . e. . in trespass , quare clausum fregit & cuniculos cepit . the defendant said , that the plaintiff made a lease at will unto such a man , of the land ; and he as his servant did kill the coneys , and it was holden no plea , and yet it is there said , that by the grant of the land the coneys doth not pass ; but the reason ( as i conceive ) is , because it tends to his damage , and therefore that he may kill them . and so in this case , . h. . and . e. . if i have common of pasture in land , and the tenant plougheth the land , i shall have my action upon the case in the nature of a quod permittat . . e. . if one hath land adjoyning to my land , and levy a nusans , i may enter upon his land and abate the nusans . so if a man take my goods and carrie them into his own land , i may enter thereupon and retake my goods . so if a tenant of the freehold plough the land , and sow the same with corn , the commoner may put in his cattel , and there whit eate the corn growing upon the land , and may justifie the same , because the wrong first begins by the tenant ; so if a man do falsly imprison me , and put me in his house , i may break his house to get forth . . h. . in trespass , all the inhabitants of such a town do prescribe to have common in such a field every year after harvest : and one froward fellow amongst the rest will not gather in his corn within convenient time , if the townsmen put in their cattel , and they eate the corn , he hath no remedie for it ; and he asked what remedie the commoner should have for the eating of the grass , which his cattel is to have , if he should not kill the coneys ? he cannot take them damage feasants , for he cannot impound them ; nor doth a replevin lye of them . . e. . and f. n. b. if the lord surcharge the common , the commoner may have an action against him : but in this case , he can have no action . gaudy , chief justice . he cannot kill the coneys , because he may have other remedie . suit justice , a commoner cannot take or distrain the cattel of a freeholder damage feasants ; and therefore he cannot kill or destroy the coneys , and he hath a remedy ; for he may have an action upon the case , or an assize against him for putting in of the coneys , if he do not leave sufficient common , for the commoner . judgment was afterwards given for the plaintiff . hill. . eliz. in the king 's bench. yarram and bradshawe's case . yarram and wilkenson , sheriffs of the city of norwich , brought an action upon the case against bradshawe , because that they being sheriffs of n. a capias ad satisfaciendum ( and shewed at whose suit , and in what action ) was awarded unto them ; and they , . feb. anno . el. directed their warrant in writing to three sergeants of the same city to arrest him ; by force of which the sergeants the . of feb. in the same year , did arrest him in execution , and that he was rescued and escaped : and that they had spent divers summs of money in enquiring after him , ad grave damnum eorum , &c. the defendant pleaded , not guilty ; and upon tryal of the issue , a special verdict was found , that about . feb. anno . such a warrant was made by them unto the sergeants , but not . feb. and that the sergeans by force thereof , about . feb. did arrest him , but not the . of feb. and upon the whole matter , there was a demurrer in law. tanfield , for the defendant , and he said , it was no lawfull arrest . for by . e. . a bailiff without a warrant in writing may take goods in execution , and it is good , if it be by commandment , by word onely of the sheriff ; but he cannot arrest the body of a man without a warrant in writing , & sigillo signatum , which is not shewed here in the plaintiffs declaration : if one in debt declare per factum suum obligatorium , and doth not say , sigillo suo sigillatum , it is not good . quaere of that , for the book of entries is not so . secondly , he said , it must be a present loss or damage to the plaintiffs , or else they cannot maintain the action : they are chargeable , but not charged ; for if the sheriffs dye before he begin any suit against them , their executors shall not be charged : but if the plaintiffs have been arrested , then they are endamaged . thirdly , as to the verdict , the foot and foundation of the action is the wrong ; and the wrong here is not found certain ; for it is supposed to be . feb. and also that the warrant was circa . feb. but not . feb. and if it were any day before , then the action is maintainable ; but not , if it were any day after . a man brings an action , of trespass , supposing by his writ the same to be done . may ; if in truth the trespass was before , then it is good , but if it were . may or at any time after . may , then it is not good . it was a great case betwixt vernon and gray , in an ejectione firme , the ejectment was supposed . may , and the jury did finde the ejectment to be circa first may , and adjudged not good . if an ejectione firme be brought upon a lease made . may , and the jury finde the ejectment to be circa . may , it is not good . also here they could not take him in execution again , although they had found him . for if a man be once out of execution by ▪ h. . he shall not be taken again in execution for the same cause . the court held it not material whether he shewed or not that the warrant was sub sigillo sigillat ' , and therefore thy did not speak to it . godfrey , for the plaintiff , what if they be not charged , but chargeable ? yet they shall have their action upon the case , for the wrong done . viz. the rescous and the escape , because the defendant shall not take advantage of his own wrong ; and so is the opinion of frowick . h. . . reporter . quaere , for frowick saith , he shall have an action upon the case or trespas for breaking of prison , against him , and shall recover in damage as much as he lost by the escape , and so he shall be helped , and not by taking of him again : and fitzherbert , in his natura brevium , in the writ of ex parte talis , holds , that upon an escape the gaoler shall have a special writ upon the case against the prisoner to answer for the escape , and the damages which the gaoler shall sustain thereby : and it was holden in a great case , viz. one holts case : that it is not necessary to shew that there was a recovery against them . tanfeild , but there it was after a suit begun , although before recovery . godfrey , they have also put it in their declaration , that they have expended great sums of money in looking for him ; therefore they have shewed that they were damnified . tanfeild , it was foolish for them to spend their money , for they could not have taken him again , although they had found him . godfrey , a man shall have an action for fear of vexation , or trouble , or charge , as one shall have a warrantia charta , before he be impleaded . a man shall have a curia claudenda , before any breach of the enclosure : as to the verdict , it is certain enough , for it saith , quod tunc & ibidem seipsum recussit ; and that cannot but be referred to a time certain before . viz. . feb. tanfeild , it shall be referred to circa , and therefore ad tunc & ibidem do remain uncertain . suit justice , presently by the escape , there was a wrong done , therefore for that he may have an action . clenche justice said , that he had experience in a case of trespas : and it was the opinion of almost all the judges of england , that if the trespass should be done after the day wherein it is supposed to be done by the writ ; yet the writ shall not abate , and therefore he said , that the difference of the trespas done before and after the day supposed by the writ , is to no purpose : further he said , that it standeth them upon to have their action before they be sued by the party , at whose suit he was in execution : for perhaps , he who was in execution might dye , and other changes might happen , so as they might lose all . tanfeild , what damages shall the sheriffs have here , if they shall recover before any action be brought against them , when as it is uncerrain whether ever they shall be sued or not ; and so uncertain how much they shall be damnified ? but notwithstanding all which was said by tanfeild , judgment was given for the plaintiffs . hill. . eliz. in the common pleas. london doth prescribe to have a custom , that after verdict given in any of the sheriffs courts , or such like court there , that the maior may remove any such suit before himself , and as chancellor secundùm bonam & sanam conscientiam moderate it , and it was moved , whether it were a reasonable custom or not , because that after tryal by ordinary course at law , he should thereby stay judgment . gaudy justice , it ought to be before judgment , otherwise it cannot be , for the statute of . h. . is , that judgment given in any court shall not be reversed , but by error or attaint ; vide rastal , tit. judgment . mich. . eliz. in the common pleas. rot. . greene and harris case . in an ejectione firme upon a special verdict , it was found , that one john brenne was seised of a manor where there were copyholders for life , and by indenture leased a copyhold called harris tenure , parcel of the land in question , to peter and john blackborow , for eight years , to begin after the death of brenne & his wife ; and by the same indenture leased all the manor to them as before : the copyholder did surrender , and brenne granted a copy to hold according to the custom of the manor . brenne and his wife died : so as the lease of blackborow was to begin ; peter entred and granted all his interest unto a stranger , and died . john entred into the whole as survivor , and made a lease thereof to the plaintiff , and the copyholder entred , and he brought the action . shuttleworth for the plaintiff : the question is , whether the plaintiff shall have harris tenure , as in gross , or as parcel of the manor ? and he conceived , that because it is named by it self , that it shall pass as in gross ; for so their intent appeareth to be . in . h. . dyer . a feoffment was made of a manor to which a villein was regardant , by these words , viz. dedi unam acram , &c. and further , dedi & concessi villanum meum : and there it was holden that the villein should pass as in gross , and that they were several gifts , although there was but one deed. the same law shall be of an advowson appendant . . and . el. dyers ▪ husband and wife were joint-tenants in fee of a manor out of which the queen had a rent of twenty pound per annum , and she by her letters patents , in consideration of money paid by the husband , did give , grant , release , and remise unto the husband and his heirs the said twenty pound rent , habendum & percipiendum to him and his heirs ; the husband did devise the rent unto another and his heirs , and dyed : there it is debated , whether the wife should pay the rent or not ; and it was holden that she should pay it , for the deed having words of grant and release , it shall be referred to the election of the husband , and for his best avail how he will take it ; and there is no necessity that the rent be extinguished in his possession ; for it is a maxime in law , that every grant shall be taken beneficially for the grantee : so is it , if it contain words of two intents , he may take that which makes best for him . . and . h. . a deed comprehending dedi & concessi , was pleaded as a feoffment . in . e. . a rent issuing out of lands in fee was granted to tenant by the courtesie , to have and to hold to him and his heirs ; it shall not be taken as extinct , but the rent shall go to his heires , although he himself could not have it ; then in our case , because it is more beneficial for the termor , he shall have it in gross ; and so he shall avoid the estate of the copyholder afterwards ; and here is an election made by peter so to have it by the grant of his interest over . our case is not like unto the case of . e. . . where a cessavit was brought , supposing that the house was holden of the plaintiff by five shillings , and the defendant pleaded , that the ancestor of the plaintiff , by his deed , which he shewed forth , gave the house to him and a shop , which are holden by one intire service , and demanded judgment , &c. and there it was holden , that that deed did not prove , but that the shop might be parcel of the house , and not a shop in gross by it self . and there finchdon saith , that if a man grant the manor of f. to which an advowson is appendant , and the advowson of the church of f. so as it is named in gross , yet it shall pass as appendant ; i yeild to that , for there it is not more beneficial for him the one way or the other , as it is in our case . it may be perhaps objected , that the plaintiff here shall not recover at all for the cause alleadged in plo. comm. . in bracebridges case , because that the action is brought for a certain number of acres , as one hundred acres , and it is found that the plaintiff hath right but to a moyty of them : but it hath been ruled against that ; viz. that he shall recover . walmesley sergeant contrary . notwithstanding that this copy-hold be twice named ; yet it shall pass as parcel of the manor , and not as a thing in gross , and there is but one rent , one tenure , and one reversion of both . . e. . a fine was levyed of a manor unto which an advowson was appendant , wherein a third part was rendred back to one for life , with divers remainders over , and so of the other two parts , with the advowson of every third part , as abovesaid ; and there it is debated who shall have the first avoidance . and it is holden notwithstanding the division as aforesaid , and the naming of one before the other , that they are all tenants in common of it : so as if they cannot agree to present , that lapse shall incurre to the bishop ; and there no prerogative is given to him who is first named , nor any prejudice to the last named ; for being by one deed , it shall passe uno flatu . . h. . . a lease was made for a year , et sic de anno in annum , &c. and there it was debated , whether it were a severall lease for every year ; and it was ruled , that an action might be brought , supposing that he held for one and twenty years , if in truth by force of the same demise the lessee occupy the land so long : and if i by my deed grant unto a. and b. the services of i. d. and by the same deed the services of i. s. are also granted unto them , they are joyn-tenants of the services or seignories : so if i lease a manor , reciting every parcell of the land of the manor , for the whole consists in severall parcels ; in . h. . ( before remembred , ) it is said , that the advowson shall be appendant , if the whole manor be granted , &c. but if it be admitted that there be severall leases , and that it passeth as a thing in grosse ; yet in the interim during the life of brenne , and his wife , it is one entire manor . for if blackborow had levied a fine thereof before entry , his interest in the land had not passed . and if a fine be levied of the manor , and the conusee render back part to one for life , and another part to another for life , the remainder of the whole to a third ; until the two enter , it is one entire manor in the hands of the conusee . if i devise that my executors shall sell such lands which are parcell of a manor , and dye ; untill they sell , it remains parcell of the manor : so if the heir selleth the manor , that land shall passe , for it is but executory , and remains parcell untill it be executed . wherefore in the principall case here , the copy-hold is good . the reason of the case . h. . dyer . is , because before the grant , the advowson was not appendant to that acre onely , but to the whole manor , and to that acre as parcell of it . also he said , that the copy-hold shall be good against the lessee , being granted before execution of his term , when as the manor was entire : for he who hath a manor but for one year , may grant copies , and the grant shall be good to bind him in the reversion . and if one recovereth an acre , parcell of a manor before execution , it is parcell of the manor , and by grant of the manor shall passe . periam justice , but yet now being executed by the death of the lessor and his wife , it is no part of the manor if they be severall leases . walmesley , but the defendant is in by custome , by one who is dominus pro tempore . anderson chief justice , the case of . e. . is like our case . and i conceive clearly here is no severance ; but if there had been any severance , it had been otherwise ; but i doubt of the other point . periam justice , in . h. . the difference is taken betwixt a grant of a manor una cum advocatione ; and a grant of a manor , et ulterius , a grant of the advowson . in . eliz. dyer . in the case of the lord cromwell and andrews , it is moved , if a man bargain and sell , give and grant a manor and advowson to one , and afterwards levieth a fine , or inrolleth the deed , dyer held , that the advowson shall passe by the bargain and sale , as in gross before that the deed be enrolled . but i conceive , that it cannot pass if the deed be not enrolled , and then it shall pass as appendant , by reason of the intent of the parties : and so in this case . and for the last matter , i conceive , very strongly , that when the lease which is executory takes effect , that it shall avoid the copy-hold ; for although at once , viz. during the expectancy of the said lease , to begin at a day to come , the copy-hold be not extinct ; yet now he may say , that all times , as in respect to him , the copy-hold custome was broken . i hold , that a tenant in dower shall not avoid a copy-hold made during the coverture ; and so it hath been adjudged in the kings bench. but i conceive , there is a difference betwixt that case , and the case in question ; for in that case the title of the wife to have dower is not consummate till the death of the husband . anderson chief justice , i can shew you an authority , that if i grant unto you such land ▪ and the manor of d. there the land shall pass as parcell of the manor ▪ periam , true there , for it doth enforce the first grant . but here the intent of the parties doth appear , and the same is to be respected . anderson , but their intent ought to be according to the law : as in . h. . it is holden it shall be in a devise . anderson , upon the argument of this case , said , that if a warranty be to a whole manor , and also to an advowson , the party cannot have two warrantia chartae . periam , if he had further said in the deed , that his intent was that it should be severall , the same had altered the case . anderson , no truely ; because his intent did not stand with the rule of law. as if a man devise that his lands shall be sold , and doth not say by whom , it is void , and yet the intent is expressed . if the lease had been by severall deeds , periam said , the copy-hold had beene severed . windham denied that , if both the deeds bee delivered at one time . it was adjourned . hill. . eliz. in the common pleas. an information was upon the statute of . & . e. . for buying of seed corn , having sufficient of his own , and not bringing so much unto the market of his own corn ; and a generall issue was found upon it . and it was delivered for law to the jury by the justices , that a contract in market , for corn not in the market , or which was not there that day , is not within the branch of the statute . but if corn or graine be in the market , although that the contract be made in a house out of the market , and delivered to the vendee out of the market , yet it is within the statute . and in the argument of that case , anderson said , that the market , shall be said , the place in the town where it hath used to be kept , and not every place of the town : and a sale in market overt in london , ought to be in a shop which is open to the street , and not in chambers or inward rooms , otherwise the property is not altered . and so it is of all statutes in open markets . and the recorder of london said , that such was their custome in london . hill. . eliz. in the common pleas. it was holden by anderson chiefe justice , that if one deviseth lands to the heirs of i. s. and the clerk writes it to i. s. and his heirs , that the same may be holpen by averrment , because the intent of the devisor is written , and more ; and it shall be naught for that which is against his intent , and against his will , and good for the residue . but if a devise be to i. s. and his heirs , and it is written but to the heirs of i. s. there an averrment shall not make it good to i. s. because it is not in writing , which the statute requires : an● so an averrment to take away surplusage is good , but not to encrease that which is defective in the will of the testator . mich. . eliz. in the common pleas. a feoffment was made unto a. unto the use of him , and his wife , dis-punishable of wast during their lives ; one died , and the survivor committed wast ; it was the opinion of the whole court , that an action of wast would not lie by him in the reversion ; for it is a priviledge which is annexed to the estate , which shall continue as long as the estate doth continue . mich. eliz. in the common pleas. a. grants annualem redditum out of lands in which he hath nothing . the opinion of the court was , that it is a good grant of an annuity by these words ( annualem redditum . ) but whether the husband shall have a writ of annuity after the death of the wife for an annuity , during the coverture , they were in some doubt ; because it is but a thing in action , as is an obligation : otherwise were it of a rent which she had for life : note , in pleading for a rent , he shall plead , that he was seised , &c. mich. . eliz. in the common pleas. winkfeild's case . winkfeild devised land in norfolk , to one winkfeild of london , goldsmith , and to his heirs in fee. and afterwards , he made a deed of feoffment thereof to divers persons unto the use of himselfe for life , without impeachment of waste , the remainder unto the devisee in fee. but before he sealed the deed of feoffment , he asked one , if it would be any prejudice to his will ; who answered , no. and the devisor asked again , if it would be any prejudice , because he conceived that he should not live untill livery was made . and it was answered , no. then he said , that he would seale it , for his intent was , that his will should stand ; and afterwards livery was executed upon part of the land , and the devisor died . rodes and periam justices ; the feoffment is no countermand of the will , because it was to one person : but perhaps it had been otherwise , if it had been to the use of a stranger , although it were not executed . anderson chiefe justice , and others , the will is revoked in that part where the livery is executed . and he said , it would have been a question , if he had said nothing . and all the justices agreed , that a man may revoke his will in part , and in other part not . and he may revoke it by word ; and that a will in writing may he revoked by word . periam said , it is no revocation by the party himselfe , but the law doth revoke it ; to which windham agreed . but he said , that if the party had said nothing when he sealed the feoffment , it had been a revocation of the party , and not of the law. periam , if the witnesses dye , so as he cannot prove the words spoken at the sealing of the feoffment , the feoffment will destroy the will ; and so he spake to anderson , who did not deny it . all this was delivered by the justices upon an evidence given to a jury at the barre . mich. . eliz. in the common pleas. note ; that it was said by anderson chiefe justice . that if one intrude upon the possession of the king , and another man entreth upon him , that he shall not have an action of trespasse ; for he who is to have trespasse , ought to have a possession ; and in this case he had not , for that every intruder shall answer the king for his time ; and therefore he shal not answer to the other party : to which , walmesley and fenner , serjeants agreed . periam doubted of it ; for he conceived , that he had a possession against every stranger . snagg serjeant conceived , that he might maintain an action of trespasse ; but windham and rodes justices , were of opinion that he could not maintain trespass . walmesley , he cannot say in the writ , quare clausam fr●git , &c. rodes vouched . e. . to maintain his opinion . mich. . eliz. in the common pleas. norris and salisburie's case . in an action of debt upon a bond , the case was this , norris was possessed of wools , for which there was a contention betwixt the defendant , and one a. and norris promised a. in consideration that the goods were his ; and also that he should serve processe upon salisbury out of the admiral court , that he would deliver the goods to a. and afterwards he delivered the goods to salisbury the defendant , who gave him bond with condition to keep him harmlesse from all losses , charges and hinderances , concerning and touching the said wools . afterwards a. served processe upon him , and he did not deliver to him the goods : for which a. brought his action upon the case against norris , who pleaded , that he made no such promise , which was found against him . and afterwards , norris brought an action of debt upon the bond against salisbury , because he did not save him harmlesse in that action upon the case . and the opinion of the whole court was , that the action of debt would not lie , because that the action upon the case did not concern the wools directly ; for the action is not brought but for breach of the promise ; and that is a thing of which the defendant had not notice , and it was a secret thing not concerning the wools . but by circumstances , and so out of the condition . anderson chiefe justice said , that if a. promise b. in consideration , that b. is owner of goods , and hath them , to deliver them to c. the same may be a good consideration ; yet he somewhat doubted of it . but walmesley did affirme it to be a good consideration . mich. eliz in the common pleas. it was holden by the whole court , that in an action of trespasse , it is a good plea in barre , that the plaintiffe was barred in an assize , brought by him against the defendant , and issue joyned upon the title ; but otherwise , if it were upon the generall issue ; viz. nul tort , nul disseisin ; for then it might be that the plaintiffe was never ousted nor disseised ; and so no cause to recover : in which case , it was no reason to put him from his writ of right . mich. . eliz. in the common pleas. intratur mich. . rot. . bragg's case . a woman having cause to be endowed of a manor in which are copy-holders , doth demand her dower by the name of certain messuages , certain acres of land , and certain rents ; and not by the name of the third part of the manor , and she doth recover , and keeps courts , and grants copy-holds : it was holden by the whole court , that in such case that the grants were void , for she hath not a manor , because she hath made her demand as of a thing in grosse . otherwise , if the demand had been of the third part of the manor , for then she had a manor , and might have kept courts and granted copies . and the pleading in that case was , that she did recover the third part of the manor per nomen of certain messuages , and acres , and rents ; which was holden to be no recovery of the third part of the manor . hill. . eliz. in the common pleas. note , it was holden for law , that the justices may increase , but not decrease damages , because the party may have an attaint , and so is not without remedy . but note , contrary by anderson and periam justices . hill. . eliz. in the common pleas. serjeant fenner moved this case , that the lord of a manor doth prescribe , that if the tenant do a rescous , or drive his cattel off from the land when the lord comes to distrain , that the tenant shall be amerced by the homage ; and that the lord may distrain for the same . anderson chief justice did conceive it might be a good custome : and so also was the opinion of rodes justice ; and he vouched h. . where the lord had three pound for pound-breach . fenner , it is extortion , if the amercement be not for a thing which is a common nusans ; and cited h. . to prove it . periam justice said , that hee said well . pasch . eliz. in the common pleas. rot. . gile's and newton's case . the case was , that the queen seised of the manor of gascoigne , and of the graunge called gascoigne graunge in d. did grant all her lands , tenements , and hereditaments in d. and it was adjudged by the whole court , that the manor did not pass . and so anderson chief justice said it is , if it were in the case of a common person ; but an advowson shall passe by the feoffment of the manor without deed , without the words cum pertinentiis , for that is parcell of the manor ; which the whole court granted . pasch . . eliz. in the common pleas. j. s. was arrested by force of a latitat out of the king's bench , at the suit of j. d. and the sheriffe took an obligation of him with two sureties , upon condition that he appear such a day in the king's bench , and also that ad tunc & ibidem he answer the said j. d. in a plea of trespass . it was moved by rodes serjeant , that the obligation was void by the statute of . h. . by which statute no obligation shall be said to be good , if not for appearance only ; and this obligation is for appearance , and also that he shall answer to j. d. which is another thing then is contained in the statute , and therefore it is void . but all the justices were of opinion , that the obligation was good , notwithstanding that ; because that the words of the writ directed to the sheriffe , are quod capias such a man , it a quod habeas corpus ejus hîc , such a day , ad respondendum tali , in a plea of trespasse ; and so nothing is contained in the bond , which is not comprised within the writ directed unto him , but if any other collaterall thing be put into the obligation , then the bond shall be void for the whole . . eliz. in the common pleas. buckhurst's case . lessee for ten years granted a rent charge unto his lessor for the years : afterwards the lessor granted the remainder in fee to the lessee . it was the opinion of the whole court that the rent was gone and extinct , because the lessor who had the rent , is a party to the destruction of the lease , which is the ground of the rent . . eliz. in the king 's bench. allen and patshall's case . a copy-holder doth surrender unto the use of a stranger for ever ; and the lord admits the surrendree to have and to hold to him and his heirs . it was adjudged in this case ; that if it were upon a devise , that such a one should have the copyhold in fee ; and afterwards a surrender is made unto the lord to grant the copy-hold according to the will ; and he grants it in fee to him and his heirs , that the grant is good . but quaere in the first case , for it was there but a bare surrender only . mich. , . eliz. in the king 's bench. strangden and barnell's case . an action of trover and conversion was brought of goods in ipswich ; the defendant pleaded , that the goods came to his hand in dunwich in the same county ; and that the plaintiffe gave unto him the goods which came to his hands in dunwich , absque hoc that he is guilty of any trover , and conversion of goods in ipswich . and by the opinion of the court , the same is a good manner of pleading by reason of the speciall justification . vide . h. . but when the justification is generall , the county is not traversable at this day . vide . h. . , & . mich. . eliz. in the kings bench. barton and edmond's case . an infant and another were bounden in a bond for the debt of the infant : the infant at his full age did assume to save the other man harmelesse against the said bond ; afterwards the infant died . it was resolved by the whole court , that upon this assumpsit an action upon the case would lie against the executors of the infant . but if a feme covert , and another at her request had been bounden in such a bond , and after the death of her husband , she had assumed to have saved the other harmelesse against such bond , such assumpsit should not have bound the wife . trinit . . eliz. in the common pleas. zouch and bamport's case this case was moved , when the defendant pleads in bar to the action , and the plaintiffe replies , and the defendant doth demur specially upon the replication , and the bar is insufficient , whether the justices shall give judgment upon the replication , or shall resort unto the insufficient bar , the replication being also insufficient ? and the opinion of the court was , that when the action is of such a nature , that the writ and the count doth comprehend the title , as in a formedon and the like , then because there is a sufficient title for the demandant by the writ and the count , so as the judges may safely proceed to judgement for the plaintiffe , there they shall resort to the barr. contrary in cases where the title doth commence only by the replication , as in assize , trespass , and the like . . eliz. in the exchequer . note , it was said by sir francis bacon the king's solicitor , that it was adjudged . eliz. in the exchequer , that where the king had made a lease for life , who was ousted by a stranger , that the same should be said a disseisin of the particular estate , against the common ground , which is , that a man cannot be disseised of lesse estate then of a fee-simple . . eliz. in the kings bench. it was holden and adjudged by popham chief justice of the kings bench , that where a lease was made unto the husband and wife for their lives , the remainder to the heirs of the survivor , that the same was a good remainder , notwithstanding the uncertainty , and that in that case the husband after the death of the wife should have judgement to recover the land ▪ . eliz. in the common pleas. procter's case . it was adjudged in this case , that the lachess of the clark in not entring of the kings silver , shall not prejudice the king or the crowne . ▪ eliz. in the kings bench. harding's case . it was holden by the whole court of kings bench ( as it was reported by sir robert hitcham knight ) that if a man make a lease of copy-hold land , and of free-hold land , rendring rent ; and the ▪ copy-hold descends to one , and the free-hold to another , that the rent shall be apportioned . trinit . . eliz. in the common pleas. rot. . leonard and stephen's case . in trespass , the issue joyned was , whether it were a feoffment or not ; and upon evidence to the jury , the case appeared to be , viz. that there was lessee for years , and afterwards the lessor made a deed of feoffment , in which were words of confirmation , and in the end of the deed , there was a special letter of atturney to make livery to the lessee for years , and his heirs . and it was agreed by all the justices , that the lessee for years had election to take the same by way of confirmation , or by feoffment ; and that the law doth suspend and expect untill he hath declared his pleasure . and it was further adjudged , that when he hath made his election , to take it by livery , that it shall be a feoffment , ab initio ; and by the delivery of the deed in the mean time , nihil operatur . mich. . eliz. in the common pleas. a copy-holder did alledge the custome to be , that the lord of the manor might grant copies in remainder with the assent of the tenants , and not otherwise : and that copies in remainder otherwise granted should be meerly void . the question was , whether it were a good custome ? the justices did not deliver any opinion in the point . but walmesley ▪ serjeant , said , that it was a void custome ; for a copy-hold estate is an estate of which the law doth not take notice , and copy-holders are meer tenants at will by the common law ; and therefore to say , that he who hath not an interest should have me at his pleasure , aswell as i who am interessed should have him at my pleasure , is preposterous and repugnant to reason : as . h. . . a custome that the commoner shall not use his common before that the lord hath put in his cattel , is not good , for the commoner hath an interest in the common , which is not reasonable to be restrained at the pleasure of another ; and . eliz ▪ dy●r . a custome that a man shall not demise or lease but for six years is a void custome . shuttleworth serjeant contrary , and he said , that the reason that this copy-hold is not within littletons estates by copy , is no reason ; for by the same reason you may overthrow all copy-hold estates . and he said , that this custome might have a lawfull beginning , and it seems to bee grounded upon the reason of the common law , that a remainder should not be without the assent of the particular tenant , and therefore it is a good custome . and so is the custome , that a woman shall not have dower if she do not claim it within a year and a day . and a custome , that a free tenant shall not alien without a surrender in the court of the lord , is a good custome . it was adjourned . . eliz. in the king 's bench. sir ralph egerton's case . upon a speciall verdict the case was this , a man being tenant for life in the right of his wife , he made a deed of feoffment habendum to the feoffee and his heirs , ad solum opus & usum of the feoffee and his heirs for the life of the wife ; and the court was cleer of opinion , that it was a forfeiture , because the habendum is absolute ; and the use is another clause ; and although he doth not limit the use but for life , yet the law limits the remainder of the use to the party who maketh the feoffment . trinit . . eliz. in the king 's bench. maye's case . if a man sendeth a letter by a carrier to a merchant for certain merchandizes to send them to him by the carrier , receiving certain monies ; and the merchant sendeth the goods by the carrier , without the receipt of the money , the same shall not bind the buyer ( as it was holden by the court ) because it was but a conditionall bargain , and it was the folly of the merchant to trust the carrier ; and therefore in that case the vendee was admitted to wage his law. and so if one writeth for wares , and the party sends them by the same carrier , yet if the carrier doth not deliver them , the other may wage his law in such case . mich. . eliz. in the common pleas. halton's case . the case was , that a recognizance was acknowleged before sir n. read , one of the masters of the chancery . the recognizee died before the same was enrolled . and whether it might be enrolled at the petition of the executors of the recognizee was the question ? and it was agreed by all the justices , that the same might be enrolled ; for it was like unto the conusans of a fine before a judge , which might be removed out of the hands of the judge by a certiorari , and yet it is no record untill it be perfected . and at that time , it was doubted whether the chancery might help a man who was a purchaser for valuable consideration , where there wanteth the word [ heirs ] in the deed of purchase : but it was agreed by all the justices , that after a fine is levied of land , that the chancery may compell the tenant to attorne . trinit . . eliz. in the common pleas. rot. . blagrove and wood's case . in trespass , the question was , if a copy-hold was surrendred , or not . and the custome was alledged to be , that a copy-holder might surrender out of the court to the steward out of the manor ▪ and the steward was retained onely by word , but had no patent . walmesley , he may be steward by word well enough . but windham and anderson held , that he might be steward by word onely in possession , that is , when he holds a court in possession ; but he cannot be steward out of court without a patent , because he is then out of possession ; and therefore , it was the opinion of the whole court , that the surrender out of court to the steward by word , was not good . hill. . eliz. in the common pleas. the summons of a copy-holder to appear at the lords court was at the church ; and thereupon the copy-holder did not appear : and it was the opinion of the whole court , that the same was no cause of forfeiture of the copy-hold , because it was not especially shewed to be the custome : and it shall be hard to make it a forfeiture ; for perhaps the copy-holder had not notice of it ; and to that purpose was vouched the lord dacres and harlesto●s case . and they held , that notice ought to be given to the person ; and the refusall must be willfull ; for if a copy-holder be demanded his rent , and he saith , that he hath it not , the same is no forfeiture , but the deniall ought to be a wilfull deniall ; and so it was said to have been adjudged in one winters case . trinit . . jacobi in the common pleas. rot. . sapland and ridler's case . after long arguments on both sides , it was adjudged by all the justices in this case : that where the custome of a copy-hold manor was to admit for life , and in remainder for life , at any time when there was but one copy-holder for life in possession ; and during the minority of the heir within fourteen years , the gardian in socage in his own name did admit a copy-holder in remainder for life , that the same was a good admittance according to the custome : and that he was a sufficient dominus pro tempore as to this purpose . although it was objected by walmesley , that the gardian is but servus , and not ▪ dominus . but because it was agreed that he had a lawfull interest , the admittance was good , and so it was adjudged . . eliz. in the common pleas. shipwith and sheffield's case . the custome of a copy-hold manor was , that a feme covert might give lands to her husband . and if it were a good custome , or not , was the question ? fleetwood . the custom is good , and vouched . e ▪ . that in york there is such a custome , that the husband might give the land of his own purchase to his wife during the coverture ; and it is a good custome , that an infant at the age of fifteen years may make a feoffment , . e. . and the same is good at the common law ; and yet the same all began by custome . but the court was of opinion , that the custome is unreasonable , because it cannot have a lawfull commencement . and anderson chiefe justice said , that a custome that an infant at the age of seven years might make a feoffment , is no good custome ; because he is not of age of discretion . and in this case at barre , it shall be intended that the wife being sub potestate viri , did it by the ▪ coherison of her husband ; the same law is of a custome , that the wife may lease to her husband . fleetwood urged , that the custome might be good , because the wife was to be examined by the steward of the court ; as the manner is upon a fine , to be examined by a judge . to which the court said nothing . . eliz. in the king's bench an action upon the case upon an assumpsit was brought . and the plaintiff layed his action , that such a one did promise him , in respect of his labour in another realme , &c. to pay him his contentment . and he said , that twenty five pound is his contentment , and that he had required the same of the defendant . cook moved in arrest of judgement ; it being found for the plaintiffe , upon non assumpsit pleaded , that no place was alledged where the contentment was shewed : and the opinion of the court was against him ; for gawdy and wray were of opinion , that he might shew his contentment in any action ; and so it is , where it is to have so much as he can prove , he might prove it in the same action . cook said , that it had been moved in stay of judgement in this court upon an assumpsit , because the request was not certain . and that case was agreed by the justices , because the request is parcell of the assumpsit ; and the entire assumpsit together in such case is the cause of the action ; but in this case , that he should content him , is not the cause of the assumpsit , but only a circumstance of the matter ; and it was resembled to the case of . h. . where a writ of annuity was brought for arrerages against an abbot pro consilio , &c. and the plaintiffe declared that the councel was ad proficuum domus , and was not alledged in certain ; and it was holden that the same was not materiall , although it were uncertain , because it was but an induction and necessary circumstance to the action : and so the plaintiffe recovered and had judgement . mich. eliz. in the king 's bench. the statute of . eliz. cap. . is , quod non licuit alicui to engrosse barley , &c. and in the statute there is a proviso , that he may so do , so as he convert it into malt. the question was , if in an information upon that statute , that the defendant had converted it to malt , he might plead the generall issue , not guilty , and give in evidence the speciall matter , or whether he ought to plead the speciall matter . clench justice , he may plead , not guilty , &c. for the proviso is parcel , and within the body of the statute , as . h. . . where , upon an information upon the statute of farmors , it is holden by fitzherbert , that the vicar may plead , non habuit seu tenuit ad firmam , contra formam statuti , &c. and yet the statute in the premises of it , restrains every spirituall person to take in farme any lands , &c. and afterwards by a proviso gives him liberty to take lands for the maintenance of his house , &c. as upon the statute of r. . if he do plead , that he did not enter contra formam statuti , he may give in ▪ evidence that he entred by title , as that his father was seised and died : and the same is not like unto the condition of a bond , for that is a severall thing ; but the proviso and the statute is but one act. mich. . eliz. in the king 's bench. note ; it was said by master kemp secondary of the king's bench , that there is a court within the tower of london , but he said , that it was but a court baron ; and said , that he can shew a judgement , that no writ of error lieth of a judgement given there . and it was a question , whether process might be awarded to the lieutenant of the tower for execution upon a judgment given in the kings bench , because the defendant was removed and dwelt within the liberty of the tower ? and it was said , it could not ; but the writ ought to be awarded to the sheriffs of london ; and if they returne the liberties of the tower , then a non omittas shall be awarded . but some counsellors said , that although a non omittas be awarded , yet the sheriffs durst not go unto the liberties of the tower to serve the process . jacobi , in the common pleas. the lady stowell's case . it was adjudged in this case , that the wife who is divorced causa adulterii , shall have her dower . . jacobi , in the common pleas. warner's cafe . lessee for twenty years doth surrender , rendring rent during the term . it was adjudged a good rent for so many years as the term might have continued . . jacobi , in the king 's bench. whitlock and hartwell's case . two joint-tenants for life , the one demised and granted the moyty unto his companion for certain years to begin after his death . adjudged void , because it is but a possibility . and so is it of a covenant to stand seised to the use , &c. as it was adjudged in barton and harvey's case , . eliz. . jacobi , in the kings bench. pinder's case . a. devised lands in fee to his son , and many other lands in tail : and afterwards he said , i will that if my son die without issue , within age , that the lands in fee shall go to such a one . item , i will that the other lands in tail shall go to others ; and doth not say in the second item , if the son dieth without issue , within age . it was adjudged , that the second . item should be without condition . jacobi , in the star-chamber . ruswell's case . a man took away corne in the night time to which he had a right , and was punished for a riot in the star-chamber , because of his company only . hillar . . jacobi . kingston and hill's case . an action upon the case was brought for saying these words , viz. thou art an arrant papist , and it were no matter if such were hanged ; and thou , and such as thou , would pull the king out of his seat if they durst . adjudged that the words were not actionable : et quod querens nihil capiat per billam . pasch . ▪ jacobi , in the common pleas. note ; it was holden by the court , that if a fierifacias go to the sheriffe to do execution , and he levieth the money , and delivereth the same to the party ; yet if it be not paid here in the court , the party may have a new execution ; and it shall not be any plea to say , that he hath paid the same to the party ; for it is not of record without bringing of the money in court. vide . h. . . ar . pasch . . jacobi , in the common pleas. duke and smith's case . note ; that if he in the reversion suffer a recovery to divers uses , his heirs cannot plead , that his father had nothing in the land at the time of the recovery ; for he is estopped to say , that he was not tenant to the praecipe . and it was agreed , ●that it was a good recovery against him by estoppel . quaere this case . mich. . jacobi , in the king's bench ▪ birry's case . birry was committed by the high commissioners , and removed by habeas corpus into the kings bench : they returned the writ with a certificate , that they did commit him for certain causes ecclesiasticall ; which generall cause the court did not allow of . they certified at another time , that it was for unreverent carriage and sawcie speeches to doctor newman . the court also disallowed of that cause . birry put in bail to appear de die in diem , and was discharged . it was holden . that if birry did not put off his hat to him , or not give him the wall , the same were not sufficient causes for them to commit him . and it was agreed by the whole court , that whereas the said commissioners took bonds of such as they cited to appear before them , to answer unto articles , before that the party had seen the articles , that such bonds were void bonds . mich. . jacobi , in the king 's bench. ann mannock's case . ann mannock was indicted in suffolk , upon the statute of . el. cap. . for not coming to church twelve sundayes together ; which indictment was removed into the kings bench ; and exceptions taken unto it . . that the statute is , that all inhabitants within the realme , &c. and it is not averred in facto , that she did inhabit within the realme ; and the exception was disallowed , for if it were otherwise , it ought to be shewed on the defendants part . the second exception , that by a proviso of the statute of . eliz. cap. . it is ordained , that none shall be impeached for such offence , if he be not indicted at the next sessions ; and it appears by the indictment , that the offence was almost a year before the indictment , and in the mean time many sessions were , or debuerunt to have been . and that exception was also disallowed , for perhaps the truth is , that there was not any sessions in the mean time , although there ought to have been . the third exception , that the indictment was , that she was indicted coram a. b. & sociis ▪ justices of peace , and it doth not name them particularly . the exception was disallowed , for that it doth not appear that there were any other justices there , and what was their names . and therefore it was said , that it differs from the case of . h. . of a fine levied c●ra● a. b. & ●●●iis suis , the fourth exception was , that the words of the statute are , ought to abide in the church till the end of common prayer , preaching , or other service of god in the disjunctive : and the indictment was in the conjunctive . the exception was disallowed , for although the words are in the disjunctive , yet a man cannot depart so soon as the service is ended if there be preaching but he ought to continue there for the whole time . pasch . . jacobi , in the king 's bench. an enfant did acknowledge a statute , and during his nonage brought an audita querela ▪ to avoid the statute , and had judgment ; the conusee at the fall age of the enfant brought a writ of error and reversed the judgment given in the audita querela , and the enfant the conusor prayed a new audita querela ; but it was denyed by the whole court. mich. . jacobi , in the common pleas. peto and chittie's case . it was adjudged in the court of common pleas in this case ; that concord with satisfaction is a good plea in barre in an ejectione firme . mich. . jacobi , in the king 's bench. two men were bound joyntly in a bond , one as principal and the other as surety ; the principal dyed intestate , the surety took administration of his goods ; and the principal having forfeited the bond , the surety made an agreement with the creditor , and took upon him to discharge the debt : in debt brought by another creditor , the question was upon fully administred , pleaded by the administrator , if by shewing of the bond , and that he had contented it with his own proper mony , whether he might retain so much of the intestates estate : and it was adjudged that he might not : for flemming chief justice said , that by joyning in the bond with the principal , it became his own debt . pasch . . jacobi , in the common pleas. taylor and jame's case . in a replevin by john taylor , against richard james , for taking of a mare and a colt in long sutton , in a place called h. in the county of somerset ; the defendant did avow the taking , and shewed . that sir john spencer was seised of the manor of long sutton , whereof the place where &c. is parcel , and that he and all those whose estate he hath in the said manor &c. have had all estrayes within in the said manor ; and shewed that the bailiff of sir john spencer seised the said mare and colt as an estray , and proclaimed them in the three next market towns , and afterwards the bai●iff did deliver them to the defendant to keep in the place where &c. and if any came and challenged them , and could prove that the same did belong to him , and pay him for their meate , that he should deliver them unto him ; and then shewed how that the plaintiff came , and claimed them for his own ; and because he would not prove that they did belong unto him , nor pay him for their meate &c. he would not deliver them ; upon which plea there was a demurrer in law. after argument by the serjeants , cook chief justice , said , that it was a plain case for the plaintiff : the reason of estrayes was , because when there is none that can make title to the thing , the law gives it to the king , if the owner doth not claim it within a year and a day ; and also because the cattel might not perish , which are called animalia vagantia &c. but the defendants plea is not good , because the defendant is to keep them until proof be made unto him , and the law doth not take notice of any proof , but by twelve men , which the defendant cannot take , . h. . barre ▪ . but if the owner can make any reasonable proof , as if he shew the markes &c. it is sufficient , and the party suo periculo ought to deliver to him the estray . secondly , it is not sufficient to keep the estray within the manor , but it ought to be kept in a place parcel of the manor . thirdly , it ought to be in land in the possession of sir john spencer , and not of any other ; and it doth not appear that that land was in his possession . fourthly , if they do go in the land of sir john spencer ; yet it is absurd to maintain that the bailff might delegate his power to another to keep them until he be satisfied . walmesley justice , agreeeth ; for when it is spoken generally of proof , it shall be taken for judicial proof , which needeth not in his case , for these vagrant beasts ; and the party shall not be his own judge , but as it hath been remembred upon the statute of wrecke , si docere poterit , if he can instruct him , and give him any reason wherefore the estray doth appertain unto him , he ought to deliver it suo periculo . also it is cleer , that agreement ought to be made with the party for the victual , and the quantity thereof shall be tryed in this court if it come in question , as the quantity of amends in a replevin . warbarton agreed , and said , that an estray ought not to be wrought , but the party must agree for his meate ; also the lord cannot put the owner to his oath ; but if the party doth tell the marks , it is sufficient , and he ought to deliver it at his peril : and if he require more then belongs to him for the meate , it is at his peril , for this court shall jugde of that . daniel agreed , and said , that the lord ought to proclaim them , and in his proclamation ought to shew of what kinde the estray is , whether sheep , oxe , horse , &c. and ought to tell his name who seised them , so as the owner might know whither he might resort for his cattel ; and then it ought to be kept within the lordship and manor , which may extend into several counties . cook said , that the owner ought not to be pressed to his oath , pr. cases . . pasch . . jacobi , in the common pleas. langley and colson's case . an action upon the case was brought by langley against colson , for these words , viz. richard langley is a bankrupt rogue , i may well say it , for i have payed for it : and it was adjudged for the plaintiff ; for by all the justices the first words are actionable , although the word bankrupt be spoken adjectivè , because they scandalize the plaintiff in his trade . at the same time another action was brought by another man for speaking these words , viz. thou art a bankruptly knave , and canst not be trusted in london for a groat ; and it was adjudged that the words were not actionable , because the words were spoken adjectivè and adverbialitèr , and are not so much as if he had called him bankrupt knave , but bankruptly , viz. like a bankrupt . pasch . . jacobi , in the common pleas. ballet and balle'ts case . awarrantia charta was brought by thomas ballet the younger , against thomas ballet the elder ; and the writ was of two messuages and the moytie of an acre of land , unde chartam habet &c. and declared , whereas himself and the defendant and one francis ballet were seised in the new buildings , and of one piece of land adjoyning &c. in the tenure &c. containing from the east to the west twenty foot by assize , and from the north part to the south thirty foot , and the said thomas the elder , and francis did release unto him all their right in &c. the said thomas the elder for him and his heirs , did warrant tenementa praedict ' to the said thomas the younger and his heirs : the defendant did demand oyer of the deed , and thereby it appeared that the said thomas and francis and one r. did release to him all their right in , &c. and that thomas the elder for him and his heirs did warrant tenementa praedict ' to thomas the younger & his heirs , and that francis by another clause for him and his heirs did warrant tenementa praedict ' to thomas the younger and his heirs : upon which it was demurred in law , and after argument by the serjeants , some matters were unanimously agreed by all the justices . first , that upon such a release with warranty , contra omnes gentes , a writ of warrantia charta lyeth . secondly , although that every one passeth his part onely , viz. a third part , yet every one of them doth warrant the whole : and because they may so do , and the words are general without restraint by themselves , the law will not restrain them . the words are , that they do warrant tenementa praedict ' , which is , all the premisses . thirdly , for the reason aforesaid , it needs not to be shewed how they hold in jointure . fourthly , that the writ is well brought against one onely , because the warranties are several ; but if they had been joint warranties , then it ought to have been brought against them both so against the survivor & the heir of one of them ; and if they had both dyed , against both their heirs ; so as it differs from an obligation personal which onely binds the survivor . fifthly , that the writ was well brought for the things as they are in truth , without naming of them according to the deed. sixthly , that if there be new buildings of which the warranty is demanded which were not at the time of the warranty made , and after the deed is shewed , the defendant shall not have any benefit by demurring upon it ; but if he will be aided , he ought for to shew the special matter , and enter into the warranty for so much as was at the time of the making of the deed , and not for the residue : vide fitz. warrantia charta . seventhly , that a warrantia charta doth not lye of a piece of land , no more then a praecipe quod reddat , nor of a selion of land. mich. . jacobi , in the kings bench. an action upon the case was brought for these words , viz. thou hast spoken words that are treason , and i will hang thee for them . it was adjudged by the whole court , that the words were actionable . mich. . jacobi , in the kings bench. a man was bound to pay twenty pound to another , when he should be out of his apprentiship , and he died within the time , the executors shall not have the money ; otherwise , if the bond had been to pay money , after the expiration of ten years . adjudged . mich. . jacobi , in the kings bench. gage and peacock's case . it was adjudged in this case : that if lessee for years of a manor take a lease of the bailiwick of the manor , that it is no surrender of his term , because it is of a thing which is collaterall . mich. . jacobi , in the common pleas. if a parson have a benefice above the yearly value of eight pound ; and afterwards he taketh another benefice with a dispensation , and afterwards he taketh a third benefice ; his first benefice is onely void . adjudged per curiam . mich. . jacobi , in the common pleas. a man , in consideration of marriage , doth assure and promise to do three severall things : for the not performance of one of them , the party to whom the promise is made , bringeth an action upon the case ; and to enable him to the action , sayes , that the defendant in consideration of marriage , did promise him to performe the said thing , for which the action is brought , without speaking of the other two things : the defendant by plea in barre said , non assumpsit modo & formâ . and the opinion of the court was , that it was a good issue ; for the contract being entire , if it be not a good plea , the defendant might be charged for the severall things ; which cannot be , being but one contract by word : but it is otherwise of severall contracts in writing . trinit . . jacobi , in the kings bench. sir john spencer and poynt's case . sir john spencer made a lease for years unto sir john poynts , rendring rent by indenture : the lessee covenants , that if the rent be behind at any time of payment according to the forme of the indenture , that the lessor shall have two hundred pound nomine poenae , for such default . the rent is behind , sir john spencer brought debt for the nomine poenae . the question was , whether without demand of the rent , debt did not lie for the nomine poenae : and the better opinion of the court was , that the action of debt did not lie . vide : fitz n. b. . seems contrary . . jacobi , at the sessions at newgate . it was adjudged upon the statute of jacobi , of desperate stabbing to be felony without clergy , that because that the party had a cudgell in his hand , that that was a weapon drawn within the intent of the statute . and the party was thereupon arraigned of felony , and not of murder , and admitted to his clergy . mich. jacobi , in the kings bench. note , it was holden by the whole court , that if a man appeareth upon a scire facias , that he shall not have an audita quereba , because he had notice in facto ; otherwise if he had appeared upon the . nichil returned , which amounts to a scire feci , for there he hath not notice in fact ; but it was said , that the course is otherwise in the common pleas. mich. . jacobi , in the kings bench. johnson's case . in an accompt , the defendant was adjudged to account ; and the parties were at issue before auditors , and the plaintiffe was non-suit : the question was , whether he should have a scire facias against the defendant to account upon the first originall ; and the better opinion of the court was , that he should not ; but should be put to a new writ of account according to the opinion of townsend , in . h. . against . e. . and . h. . mich. . jacobi , in the king 's bench. note , it was holden by justice williams , and not denied by any other of the justices , that if lands be given to one , and his heir , that the same is a fee-simple , because the word ( heir ) is collectivum . mich. . jacobi , in the kings bench. harlow and wood's case . in an action of trover and conversion , the case was , a stranger delivered the horse of harlow to an inholder : harlow came to him , and demanded his horse , who refused to deliver it to him if hee would not save him harmelesse and indamnified . but because the pleading was , quod quidem homo did deliver to him , and did not shew his name certain ; the plea was adjudged not to be good . mich. . jacobi , in the kings bench. sir robert barker and finche's case . a man made a lease for years rendring rent at michaelmas and the annunciation of our lady ; he in the reversion bargained and sold the same to a stranger , who gave notice thereof to the lessee ; the day of the payment came , the lessee paid the rent to the bargainor , and then the deed was enrolled . the question was , whether the bargainee should have the rent by relation , so as the bargainor should be charged in account to the lessee for the rent first paid . and the court was of opinion , that the bargainee should not have the rent . dodderidge serjeant , if the rent be paid to an administrator who hath right for a time , and afterwards a will is found and proved , so as it appeareth upon the matter that there was an executor , and by consequence no administration could be ; the rent shall be paid by him again to the executors . quaere . mich. . jacobi , in the kings bench. grissell and sir christopher hodsdens case . in this case it was agreed for law , that if two lords be tenants in common of a waste , and each of them hath a court , in which are divers by-lawes made ; it ought to be presented by the homage , that such a one hath not any thing in the common ad exhaeredationem domini , and no dominorum , notwithstanding that they are tenants in common . mich. . jacobi , in the kings bench. lee and swan's case . an action upon the case was brought for speaking of these words , viz. the plaintiffe being a town clark , took forty shillings for a bribe . and by the whole court the words adjudged actionable . mich. . jacobi , in the king 's bench. brigg's case . action for the case for words , you have bought a roan stollen horse , knowing him to be stollen . it was adjudged , that the words were actionable . mich. . jacobi , in the kings bench. it was adjudged in this court , that an ejectione firme doth lie de aquae cursu . mich. . jacobi , in the kings bench. a man was indicted for a common barrator , anno regni domini nostri jacobi sexto ; and the word [ regis ] was left out of the indictment , and for that cause the indictment was quashed . it was nelson and toyes case . mich. . jacobi , in the kings bench. it was adjudged in this court , that if the wife of a lessee for years doth assent a to livery made of the house in the absence of her husband , although that the servants and children be , and continue in the house , that it is a good livery . quaere , if the wife notwithstanding her assent doth continue in the house . but if a man doth commit his house to his servants , and the one doth assent to the livery , and departeth the house , if the other do continue there , and livery be made , it is no good livery of seisin . mich. . jacobi , in the kings bench. it was holden for law in this court , that if a man do offend against any penal law , the informer ought to begin his suit within one year after the offence done , otherwise he shall not have the moity of the penalty . and if the informer hath put in his information , although that the party be not served with process to answer it , yet the same doth appropriate the penalty unto him . hill. . jacobi , in the common pleas. perepoynt's case . perepoynt procured one to convey the daughter of a gentleman , and to marry her to a ploughman in the night , and procured a priest to marry them , and was there present , for which matter he was excommunicate by the ordinary of the diocess ; and after absolution he was for the same committed to prison by the high commissioners . it was holden by the court , that matters concerning tithes , marriage , or testaments , are not examinable before them : yet because that he had suffered imprisonment for such things ; and that neither the statute of . h. . nor the cannon doth extend to the high commissioners ; it was resolved , that if upon submission to the commissioners , they would not set him at liberty , that this court would do it . mich . jacobi , in the star-chamber . it was resolved by the whole court of star-chamber , that if a man doth assist one who is a plaintiffe in that court , that it is not maintenance , because that it is for the benefit and advantage of the king : but if a man do assist an informer in another court , in an information upon a penall law ; the same is such a maintenance for which he may be punished in this court. . jacobi in the common pleas. it was adjudged in this court , that if land which was sowed be leased to one for life , the remainder to another for 〈◊〉 that if the tenant for life dieth before the severance of the corn , 〈…〉 in the remainder shall have the corn. mich. . jacobi , in the king 's bench. the lessee of a copy-holder was distrained for rent behind in the time of his lessor ; and the lessee did assume and promise , that he would satisfie the lord his rent , if he would surcease the suing of him . it was adjudged by the whole court , that it was a good assumpsit , and a good consideration . mich. . jacobi , in the king 's bench. piggot and godden's case . note ; it was in this case agreed by the whole court , and so adjudged , that in an ejectione firme a man shall not give colour , because the plaintiffe shall be adjudged in by title . mich. . jacobi , in the king 's bench. two tenants in common brought an action upon the case for stopping of a water course against a stranger , whereby the profits of their lands were lost , and it was shewed in pleading that the water had run time out of minde , & ante diem obstructionis : and judgment was given for the plaintiffs : and two exceptions were taken by coventry . first , that tenants in common ought to have several actions , and not have joyned . secondly , that the custom ought to have been pleaded to continue ante & usque die obstructionis , and both the exceptions were dissallowed by the court ; and it is not like the case of falsefails ; in which action they must join because the same is in the realty . mich. . jacobi , in the king 's bench. crosse and cason's case . an action of debt was brought upon due obligation , the condition of which was , that the obligee the . of august anno . jacobi , should go from algate in london to the parish church of stow-market in suffolk , within . hours ; and the obligee shewed , that he went from algate to the said place , and because he did not shew in his declaration in what ward algate was : it was holden not to be good . mich. . jacobi , in the king 's bench. note , that it was adjudged to be law by the whole court , that if a man bail goods to another at such a day to rebail , and before the day the bailee doth sell the goods in market overt : yet at the day the baylor may seise the goods , for that the property of the goods was alwaies in him ; and not altered by the sale in market overt . mich. . jacobi , in the common pleas. zouch and michil's case . an enfant tenant in tail did suffer a recovery by his gardian ; it was holden by the court , that the same should binde him , because he might have remedy over against the gardian by action upon the case : but otherwise if he suffer a recovery by attorney , for that is void , because he hath not any remedy over against him , as it was adjudged . jacobi , in holland and lees case . pasch . . jacobi , in the common pleas. wilson and wormal's case . in an evidence given to a jury , it was admitted without contradiction , that if judgment in an action of debt be given against lessee for years , and afterwards the lessee alieneth his term , and after the year the plaintiff sueth forth a scire facias , and hath execution ; that the terme is not lyable to the execution , if the assignement were made bona fide . also in that cook chief justice said , that if lessee for years assignee over his terme by fraud to defeat the execution : and the assignee assigneth the same over unto another bona fide , that in the hands of the second assignee , it is not lyable to execution : also in this case it was said for law , that if a man who hath goods but of the value of . pound , be endebted unto two men , viz. to one in . pound , and to another in . pound : and the debtor assignes to him who is in his debt . pound , all the goods which are worth . pound , to the intent that for the residue above the . pound debt , he shall be favourable unto him : this assignement is altogether void , because it is fraudulent in part . but foster justice said , that it shall not be void for the whole , but onely for the surplusage , as twynes case , c. . part . . quaere . pasch . . jacobi , in the common pleas. bristow and bristowe's case . in an action of covenant , the case was this , lessee for . years made an assignement for part of the term , viz. for . years , and the assignee covenated to repair &c. the first lessee devised the reversion of the term , and dyed ; the devisee of the reversion brought an action of covenant against the assignee for . years ; and the question was , if the devisee of the reversion being but a termor , were within the statute of . h. of conditions ? secondly , whether the action would lye , because no notice was given of the grant of the reversion . dodderidge serjeant , to the first point said , that this grant of the reversion was not within the statute ; for the statute is , that the grantee shall have such remedy as the said lessors or grantors themselves or their heirs or successors should have had , so as the statute shall be intended of a reversion in fee ; for the statute doth not provide , but in case where heirs or successors shall have action , and not in case where the action doth belong to executors . for the second point , he relyed upon mallories case , where it is said , that the tenant is to have notice of the assignement of the reversion . cook chief justice , i hold that the assignee of the reversion for years in this case shall have an action of covenant by the statute : it was leonards case in the time of the lord dyer , when i was a reporter in this court in leonards case lessee for years leased over part of the term upon condition ( which is so much as a covenant , ) and afterwards granted the reversion : and it was ruled , that the grantee might enter for the condition broken , and the reason ( as i remember ) was , because that executors are named in the statute ; ( but i will not charge my memory with the reason , ) but i am well assured that the case was ruled as i have said . dodderidge , it is so , that within the statute executors are named , but not the executors of him ▪ who hath the reversion , but onely the executors of the lessee , and therefore the naming of executors in the statute doth not make against us . but the lord cook said , what answer you to leonards case ? for the third point , cook chief justice , and foster justice held , that there needed not any notice in this case ; because there is not any penalty in the case , as was in mallories case : for there was a condition . warbarton justice , i doubt the first point , for he who bringeth the action upon the statute , ought to have the whole reversion : and so is winters case , in dyer . cook and foster said , it needs not that he who is to take advantage by this statute , should have the whole reversion ; for it hath been adjudged , that if the reversion be granted in tail , that the grantee shall take advantage of this statute , and shall enter for the condition broken . pasch . . iacobi , in the common pleas. candict and plomer's case . the parishoners had used time out of memory of man , &c. to chuse the parish clark of the church of st. austins in canterbury ; and the old clark being dead ; they chose a new clark , and the parson by force of a new canon chose another man for the clark : upon which , the clark chosen by the parishoners was sued in the spiritual court , and he had a prohibition : and afterwards he was sued again in the spiritual court , for setting of the bread upon the communion table , and for singing in another tune then the parishoners and the other clark did , and was deprived by sentence there . haughton serjeant moved for a prohibition , and said , that although the last suit in the spiritual court was not directly for the using of the office of clark , yet by the matters contained in the libell , it is drawn in question , whether he were lawfull clark or not , and therefore prayed a prohibition . cook , you shall have a prohibition , for the canon is against the common law. for particular customs are part of the common law : and said , that the canon law would not endure gun-shot . and he said , that by the suit in the spiritual court , they would examine whether he were a lawfull clark or not : for if he be a lawfull clark , then he hath good authority to set the bread upon the communion table . haughton , but what shall we do ? for we are deprived by sentence given there ▪ cook , there is no question ; but that the prohibition lyeth notwithstanding the sentence there ; and for the deprivation , it is meerly void . for the clarkship is a lay office , and may be executed by a lay man , and therefore the ordinary hath no power to deprive him . but he may have an action as clark notwithstanding the deprivation , for so is the book in . ass . . for an hospital . and i wish , that an information be drawn against them for holding plea of a thing , which is a meer lay thing : as it was in temps . h. . br. cases . walmesley justice , the office is lay , and the deprivation by the ordinary is void ; for he cannot deprive him because he hath nothing to do in the election : and a prohibition was granted . at another day , the case was moved again , and the court was of the same opinion , that the clark could not be deprived , because the clarkship was a lay office. and . e. tit . annuity . was cited , and . f. . where a formedon was brought of the office of serjeancy of the church of l. but cook said , the same day in another case , which was moved in court , and gave it for a rule , that after sentence given in the spiritual court , he would not grant a prohibition , if there were not matter apparent within the proceedings ; for i will not allow , that the party shall ( to have a prohibition ) shew any thing not grounded on the sentence to have a prohibition , because he hath admitted of the jurisdiction ; and there is no reason for him to try if the spirituall court will help him , and afterwards at the common law to sue forth a prohibition . all which was agreed by the whole court. pasch . . jacobi , in the common pleas. a writ of estrepment was granted in waste , because that for waste done pendant the writ , the plaintiffe cannot recover damages . per totam curiam . pasch . . jacobi , in the common pleas. pits and wardal's case . pits the butler of lincolnes-inne brought an action of debt against wardall ; and declared upon a bond with condition indorsed for the performance of an arbitrement : the defendant pleads in barre , that the arbitrators nullum fecerunt arbitramentum ; the plaintiffe replied , that they did make an arbitrement : viz. that the defendant and one of the arbitrators should enter into a bond of eight pound to the plaintiffe ; and that after the bond entred into , that the plaintiffe and defendant should release all actions each to other , and said , that the defendant and the arbitrator did not enter the bond to the plaintiffe ; the defendant did maintain his barre ; viz. quod nullum fecerunt arbitramentum ; upon which issue was joyned , and it was found for the plaintiffe . dodderidge for stay of judgement , said , that upon the plaintiffes own shewing , it appeareth , that the arbitrament is void ; for the arbitrament is , that a stranger , viz. one of the arbitrators , should enter bond , and also that after the bond entred into , that the plaintiffe should release all actions , whereby the bond should be released , and therefore it was void ; and a void arbitrament is no arbitrament . it was admitted by the court , that the arbitrament was void as to the bond , to be entred into by the arbitrator , and also that it was void as to the extinguishment of the bond , by the release of all actions : but the court conceived , that the arbibitrament did consist of two matters which were distinct , and might be severed . for although that the arbitrament be void as to one matter , yet it shall stand good , and shall be a good arbitrament for the other matter . and foster justice said , that in that case , the award to make the release might be severed ; viz. that it should be good for all actions except the bond. cook contrary , and said , that it is so entire that it cannot be divided . but the court conceived , that the arbitrament was good as to the bond to be made by the defendant , although it were void as to the arbitrator . at another day dodderidge said , that the plaintiffe had not alledged any breach of the arbitrament : for he hath put it , that the defendant and the arbitrator had not entred into the bond ; and although they two joyntly had not entred into the bond ; yet it might be that the defendant alone had entred into the bond , and it needed not that the arbitrator enter the bond ; for as to him , the arbitrament was void . and that exception was allowed as a good exception by the whole court. for they said , that the plaintiffe ought for to shew , and alledge a breach according to the book of l. . e. . . and they said , that although it be after verdict , yet it is not remedied by the statute . pasch . . jacobi , in the common pleas. foliambes case . in a writ of dower brought by the lady foliambe , it was agreed by the whole court. that if the husband maketh a lease for years , rendring rent , and dieth ; the wife shall recover her dower , and shall have present execution of the land , and thereby she shall have the third part of the reversion , and of the rent , and execution shall not cease : and all the justices said , that the sheriffe should serve execution of the land as if there were not any lease for years , for it may be that the lease for years is void ; and although it be shewed in pleading , that there is a lease for years , the wife cannot answer to it ; and it may be there is not any lease , and therefore the execution shall be generall ; and he who claimes the lease for years , may re-enter into the land , notwithstanding the recovery and the execution of the dower . and if he be ousted , he shall have his action : nichols serjeant , who was of councell against the demandant , said , that he would agree that the case in perkins . was not law. but the justices said , that there is a difference betwixt the case of perkins , and this case : for in the case in perkins , the husband had but an estate in remainder , so as no rent or attendancy was due ; so as the wife during that term could not have any benefit . also in this case , it was agreed by the court , that after judgement for part , the demandant might be non-suit for the residue , and yet have execution of that part for which he had judgment . pasch . . jacobi , in the common pleas. rapley and chaplein's case . it was ruled by the whole court , that if a custome be alledged , that the eldest daughter shall solely inherit , that the eldest sister shall not inherit by force of that custome . so if the custome be , that the eldest daughter and the eldest sister shall inherit , the eldest aunt shall not inherit by that custome ; and so if the custome be that the youngest son shall inherit , the youngest brother shall not inherit by the custome . and foster justice said , that so it was adjudged in one denton's case . pasch . . jacobi , in the common pleas. seaman's case . barker serjeant prayed the opinion of the court in this case . lessee for an hundred years made a lease for forty years to thomas seaman , if he should live so long ; and afterwards he leased the same to john his son , habendum after the term of thomas for . years , to be accounted from the date of these presents : the question is , if the lease to john shall be said to begin presently , or after the term of thomas . and the justices were cleer of opinion , that the lease to john shall not be accounted from the time of the date , but from the end of the term of thomas , because , that when by the first words of the limitation , it is a good lease to begin after the term of thomas ; it shall not be made void by any subsequent words . and cook chiefe justice said , that this is no new reason , for there is the same reason given in . e. . grants . and he put the case in dyer . eliz. . and said , that if the limitation be not certain when the term shall begin , it shall be taken most beneficiall for the lessee . pasch . . jacobi , in the common pleas. ward and pool's case . an action upon the case was brought for speaking these words , thou mayest well be richer then i am , for thou hast coined thirty shillings in a day , thou art a coiner of money , &c. i will justifie it : it was moved in arrest of judgment , that the words were not actionable , because he might have a good authority to coine money ; for men who work in the mint , are said to coine money , and are called coiners of money ; and so it was adjudged , quod querens nihil capiat per billam . pasch . . jacobi , in the common pleas. chalk and peter's case . chalk brought a replevin against peter ; the defendant did avow the taking as bailiff of sir francis barrington in sixteen acres of wood in hatfield chase ; and shewed that an arbitrament was made by the lord burghley late lord treasurer , betwixt the lord rich and the ancestors of sir francis ; by which it was awarded , that the said ancestors of the said sir francis barrington and his heirs should have the herbage of a certain number of acres within the said chase ; and also that he should have to him and his heirs the trees and bushes of the said number of acres within the said chase ; and that he might fell and cut sixteen acres every year of the said acres ; and that he should enclose them according to the laws and statutes of the realm ; and that assurance was made by the lord rich accordingly ; and that the same was confirmed by a speciall act of parliament , with a saving of the right and interest of all strangers ; and said , that sir francis barrington did inclose and cut down sixteen acres , and did enclose the same , and there took the defendants cattel damage feasants ; upon which the defendant did demurr in law. the question in the case was , if by the statute of . e. . cap. . or the statute of . h. . c●p . . which give authority to make inclosures of woods , the commoner shall be excluded . harris serjeant , i conceive , that the commoner shall be excluded by the statute of . e. . cap. . which gives authority to inclose and exclude all beasts , and therefore the commoner shal be excluded : but it will be objected , that the statute is , that the owners of the ground may enclose : but sir francis barrington is not owner , for the lord rich is the owner of the ground ; i say , that sir francis barrington is the owner , for he hath the herbage and the trees , so as he hath all the profit , and he who hath the profit shall be said to have the land it self : and he vouched paramour and yardleys case in plow . com. & dyer . and . h. . . and . e. . . also the statute is in the disjunctive , viz. the owner , or the vendee : and although he be not owner of the soil ; yet he is vendee of the trees . secondly , it will be objected , that the same is not a general law of which the judges are to take notice , and therefore he ought to plead it : i hold it to be general enough , of which you are to take knowledge although it be not pleaded : & he cited hollands case . thirdly , it will be objected , that by such general law the particular interest of a private man shall not be destroyed . to that i say , that such general statutes will include such particular interests , and therefore the case betwixt sir foulke grevill and stapleton was adjudged , that where willoughby , lord brookes had lands to him by act of parliament , with authority to make leases for one life , and no more . by the statute of . h. . of leases , that authority is enlarged , and he might make leases for three lives . haughton serjeant , although he be owner of the profits , he is not owner of the soil , and there is a difference betwixt the same and the soil . and the statute speaks of trees growing in his own soil . foster justice , the arbitrament , the assurance , and the especial act of parliament is nothing to the purpose in this case , and to plead them was more then was needfull ; for by the arbitrament and the assurance , the commoner being a third person , cannot be bounden in which he was not a party ; and by the special act of parliament he shall not be bound , because the act is against the lord rich , and his heirs , so as a stranger shall not be bound by the act : and therefore upon the statute of . eliz. cap. . of patents , the case was , that the queen made a lease for years , which was void for not reciting of a former lease ; and afterwards she granted the inheritance unto another . and then came the statute of . eliz. which confirmed all patents against her , her heirs and successors ; by that statute the grantee in fee was not bounden , but he might avoid the lease for years , for the statute is against the queen and her successors ; and that case was adjudged . but our case is without doubt , as to that point , for the right and interest of estrangers is saved by the act : then all rests upon the statute of . e. . and i conceive that the same is a speciall act , and ought to be pleaded ; for it is not generally of all woods , but only of woods in forrests and chases . but admitting it to be a generall act , yet i conceive , that it was not the meaning of it to exclude a commoner ; and that appears fully by the later words of the statute , viz , without licence of &c. which excludes only the owners of the forrest ; and it was not the meaning that he might inclose without the leave of the commoner . one thing hath troubled me in the statute , because it is said that before that time he could not inclose more then for . years ; so as before that statute he might enclose for years , as it seems , without licence , and now by the statute , for years . also for another cause i conceive , that the defendant shall not take advantage of the statute as he hath pleaded ; for he hath pleaded that he did enclose and cut , whereas the statute saies , that he shall enclose after the cutting : so as i hold cleerely , that he hath not pursued the authority of the stat. for upon the st. of . h. . which is penned contrary to this stat. scil . that the owner of the wood shall make enclosure and division for the cōmoner , and then he is to cut , i hold cleerly that after the felling he cannot make any enclosure . also admitting that by the stat. the cōmoner shall be excluded , i hold that by the stat. of . h. . that that stat. is repealed in that point ; for the stat. of . h. . is , that no man shall fell woods wherein commoners have interest by prescription until he hath divided the fourth part : so that the authority , if any were , is restrained by that stat. if he be a cōmoner by prescription , as he is in our case . but if it had been a common by grant , it had not been within the clause of restraint . and leges posteriores priores contrarias abrogant , especially the stat. being in the negative , as it is here : for by a negative statute the cōmon law shall be restrained : otherwise , if the stat. were in the affirmative : & for these reasons i conclude , that the plaintiff ought to have judgment . warburton justice contrary . all the matter rests upon the statute of . e. . first , i hold that the same is a general act , although it be particular in some things . so you may say of all statutes , which are particular in some one point or other . i hold also , that the stat. of . e. . is not repealed in this point by the stat. of h. . because they were made to several purposes : the one was for forrests and chases , the other onely for other particular woods : and i hold , that the cōmoner shall be excluded ; for otherwise the stat. should be void and contrary ; viz. to give power to one to enclose and exclude all beasts ; and yet to permit another to put in his cattel . and by the words of the statute , which exclude all beasts and cattell , the deer shall not be excluded or intended , for they shall not be said beasts or cattel . as in . e. . one who chaseth a cow in a park shall be said within the statute de malefactoribus in parcis : and then if the authority of enclosure be not to exclude the deer , it shall be to exclude the cattell of the commoner , and other the like estrangers , or otherwise it should be to no purpose . as to that which hath been said , that there is not a person who may inclose by the statute ; the statute is , that the owner shall inclose , or he to whom the wood shall be sold : so that although that hee be not owner , yet he is to have the trees and the profits ; and the statute doth intend , that he may inclose who ought to have the profit : and although the sale be not for monie , yet such a person may be said vendee well enough ; wherefore i conclude , that judgment ought to be for the defendant . walmesley justice , i hold , that he hath not authoritie by the statute to enclose : for the statute is , when any man fels trees in his proper soile : so that he not being owner of the ground , he is not within the statute : and that was the effect of his argument . and as to the other point , he did not speak at all . cook chief justice : i hold , that the plaintiffe ought to have judgment : all the matter doth consist upon the statute of . e. . which is to be considered . and first is to be considered , what was the common law before that statute ; and that was , that one who had a wood within a forrest , might fell it , as it appeareth by the statute de forresta : and the statnte of e. . . by licence : and also he might enclose it for three yeers , as it appeareth by the statute of . e. . but the enclosure was to be cum parvo fossato & haia bassa , as it appeareth by the register in the writ of ad quod damnum : so as before that statute , there was an enclosure . but the law is cleer , that before that statute , by the enclosure , the commoner shall not be excluded . then wee are to consider of the statute : and first , of the persons to whom the statute doth extend : and that appeareth by the preamble , to be betwixt the king and other owners of forrests and chases , and the owners of the soil : so as a commoner is not any person within the meaning of the statute . and for the body of the statute , you ought to intend , that the sentence is continued , and not perfected untill the end of the statute ; and the words [ without licence , &c. ] prove , that no persons were meant to be bounden by the statute , but the owners of the forrests and chases , and not the commoners : like the case in dyer . and although you will expound the words of the bodie of the statute generally ; yet they shall be taken according to the intent of the preamble ; and therefore the case of . h. . . of the prior of castleacre , although it be not adjudged in the book , yet judgment is entred upon the roll ; which case is pasch . . h. . rot. . by which case it appeareth , that although that a statute be made which giveth lands to the king ; yet by that statute the annuity of a stranger shall not be extinguished . and the case which hath been put by justice foster upon the statute of . eliz. was the case of boswel , for the parsonage of bridgwater , that although that one who hath a lease for years of the king , which was void for misrecitall , might by the said statute hold it against the king ; yet the patentee in fee shall not be prejudiced by the said statute : so i conclude , that the commoner is not a person within this statute of . e. secondly , it is to be considered , if a wood , in which any one hath common , be within the statute : and i hold , it is not , but onely severall woods : for ( as i have said ) the wood which before the statute might be enclosed for three years , was onely a severall wood , and not such a wood in which any one had common . and the statute of . e. . doth extend onely to such woods which might be felled and enclosed for three yeers : and i conceive ( contrary to my brother warburton ) that the deer of the forrest shall well enough be said to be beasts and cattell . and whereas by the common law , before this statute , the enclosure was onely to be ( as i have said ) cum parvo fossato & haia bassa , by which the deer were not excluded : now by this statute i hold , that they may make great hedges , to exclude aswell the deer as other beasts . and i agree with justice foster , that if he will take advantage of the statute , that hee ought to have pleaded , that first hee felled , and afterwards enclosed ; and è contrà , upon the statute of . h. . scil . that hee ought first to divide , and afterwards to fell , &c. and also i agree with him , that in that point the statute of . h. . being contrary , doth repeal the statute of . e. . if by that statute the commoner shall be excluded . but i am of opinion with my brother warburton cleerly , that hee is a vendee of the trees , and so within the statute : for it is not neeessary , that in the grant there be the word [ sell , ] or that money by given , nor that it be a contract for a time onely , and not to have cantinuance , as it is in our case . but he who hath the trees to him and his heirs , shall be said to be a vendee well enough . as to the other matter which hath been moved , whether the statute of . e. be a generall law or not : i hold cleerly , that we are to take knowledg of it although it be not pleaded , because it concerneth the king ; for it is made for the kings forrests : and of all the acts made between the king and his subjects , wee ought to take knowledg : for so was stowel's case . and also it was adjudged , that wee ought to take knowledg of the act concerning the creation of the prince , because it concerneth the king. and cook in his argument said , that if there had not been a speciall proviosin for the commoner in the statute of . h. . the commoner had not been excluded by that statute . and afterwards judgment was entred for the plaintiffe . pasch . . jacobi , in the common pleas. note , that it was holden by three of the justices , viz. walm●sley , warburton and foster ( cook and daniel being ab●ent ) for law cleerly , that a tenant at will cannot by any custome make a lease for life by licence of the lord : and that there cannot be any such custome for a lease for life , as there is for a lease for years . pasch . . jacobi , in the common pleas. berry's case . note , that upon an evidence given to a jury , in a case betwixt berry and new colledg in oxford , it was ruled by walmesley , warburton & foster , justices , in an action of trespass , if it appear upon the evidence that the plaintiff hath nothing in the land but in common with a stranger ; yet the jury ought to finde with the plaintiff ; and if the defendant will have advantage of the tenancy in common in the plaintiff , he ought to have pleaded it . nichols serjeant was very earnest to the contrary , and took a difference , where the plaintiffe and defendant are tenants in common , and where the plaintiff is tenant in common with a stranger . but he was over-ruled ; the action was an action of trespass , quare clausum fregit , &c. cook and daniel were absent . pasch . . jacobi , in the common pleas. it was holden by walmesley , warburton , and foster , justices , that if a rent be granted to one and his heirs for the life of another man , and the grantee dieth ; that his heir shall not be an occupant of the rent . and foster said , that the reason was , because he cannot plead a que estate of a rent . and warburton held , that the heir should have the rent as a freehold descended ; and for that he cited . h. . statham recognizance . but foster said , that he should not have the rent at all . warburton and walmesley doubted whether the rent were devisable by the statute ; and they said , that although the heir should have it by descent , yet it should not be in the nature of a descent of inheritance ; for he should not have his age. cook and daniel were absent . pasch . . iacobi , in the common pleas. heydon and smith's case . in an action of trespass the plaintiff declared of breaking of his close , and cutting down of a tree , viz. an oak . the defendant pleaded , that it was his free-hold ; the plaintiff in his replication shewed that he held of the defendant by coppy of court roll a tenement , whereof the place in question is parcell : and that the custome of the manor is , that all the copy-holders within the manor have used to take wood for house-bote , hay-bote , &c. et pro ligno combustibili in dicto tenemento . and said , that he had alwayes preserved the wood and trees growing upon the said tenement ; and that he had nourished and fostered the said oake ; and that sufficient wood was not left upon the said tenement for house-bote &c. upon which , the defendant did demurre in law. foster justice , judgment ought to bee given for the plaintiff ; i hold that a copy-holder , of common right , without any custome , shall have wood for reparations and for fire-bote , and so is . h. . fitz. wast . the opinion of hall ; and i hold that the plaintiff hath an interest in the trees , according to palmers case . c. . part . and . h. . . is , that a coppy-holder may bring an action of trespass for the trees . and i hold , that without a custome , the lord cannot fell the trees growing upon the copy-hold no more then upon a lease for years . but in this case by implication of custome , the lord may take the trees , if he leave sufficient for reparations , &c. for the custome is , that a copy-holder shall have sufficient for reparations ; by which is implyed , that he shall not have more , and then the rest the lord shall have . and i am of opinion , that in this case , and in case where the trees are excepted upon a lease , that the lord and the lessor may enter and take the trees , although there be not any clause of ingresse , or regresse . but in the principall case , because there are not more trees then are sufficient for reparation , the lord cannot take them , but trespasse lieth against him . warburton justice , the matter of prescription is not materiall in this case : for of common right a copyholder ought to have trees for reparations , and to that purpose , he hath a speciall propertie . but the onely question in this case ( as i conceive ) is , if one who hath a speciall property , may bring an action of trespasse against him who hath the generall propertie ? and i conceive , that he may well enough . as if i lend my horse for a week , and within the week i take him again , trespasse lieth . walmesley justice , for the substance , i am of opinion for the plaintiff , but i doubt ; for i would not that copyholders have so great libertie ; and he hath prescribed to take all trees : and to take them ad libitum , is too great a liberty . and i hold , that a copyholder hath no greater property then one who ought to have estovers : and in this case hee ought to have said , quando opus fuerit : and he ought to have shewed , that the houses were in decay for want of reparations , for which cause opus fuerat , &c. and so for the pleading , i hold that it is not sufficient . cook chief justice , the plaintiff ought to have judgment : for i hold cleerly , that the lord cannot take trees without leaving sufficient for reparations , no more then he can pull down or overthrow the house of the copyholder . for of common right , without custome or prescription , the trees do belong unto the copyholder for reparations , and for that purpose hee may take them without any custome ; and the lord cannot take the trees without leaving sufficient for the copyholder , if there be not a speciall custome so to do . but i hold , that without any custome the lord may take the trees , if he leave sufficient to the copyholder for the reparations . mich. . & . eliz . doylies case . a copyholder , who hath used to take timber for reparations , brought an action of trespasse . trinit . . eliz. an action of trespasse was brought by a copyholder against the lord. pasch . . eliz. the case of mutford wood. trinit . . eliz. stebbings case ; but there the action was an action upon the case . to the exceptions taken by justice walmesley , that the plaintiff ought to have shewed that the houses wanted reparations ; i hold , as hee said , that if the action had been brought against him , and hee justifie the cutting , hee ought to have shewed that the houses wanted reparations . but in our case he brings the action against another , which lyeth , although that the houses were not then in decay . and for the signification of the word house-boot , &c. bote is an ancient saxon word , which signifies in some case recompence , and in some case reparatio . for the manner of prescription , that all the tenants may take wood pro ligno combustibili in dicto tenemento , the same is no good prescription , that all shall take to burn in that tenement . but for the reasons beforesaid , judgment was given for the plaintiffe . pasch . . jacobi , in the common pleas. newton and richard's case . it was ruled by the whole court in an action of trespasse , quare clausum fregit , & cuniculos suos vel ipsius a. &c. cepit , &c. was good . pasch . . jacobi , in the common pleas. meeres and kidout's case . upon an evidence to a jury in this case , it was ruled by the whole court , that if there be copyholder for life , and the lord leaseth for years , and the copy-holder commit a forfeiture , that the lessee may enter for the forfeiture . and cooke cheife justice said , that if there be tenant for life , the remainder for life ; if the tenant for life committeth a forfeiture , he in the remainder for life may enter ; and that the case . ass . . is not law. for the particular estate in possession is determined by the forfeiture . and if hee in the remainder could not enter , then it should be at the will of the lessor whether hee should ever have it . the same law is , if the remainder be for yeers . foster justice , the reason that is given for an entrie for a forfeiture , is , because that the reversion or remainder is devested by the feoffment . but in this case , because it is but interesse termini , nothing is devested : for notwithstanding the feoffment , the interesse termini may be granted : to which cook agreed . but foster said , that hee did agree in opinion with cook , because that the particular estate was determined . the cause of forfeiture was , because that the copiholder had made a lease for life . pasch . . iacobi , in the common pleas. dr. newman's case . in this case it was said by cook chief justice , that it had of late time been twice adjudged , that if timber trees be oftentimes topped and lopped for fuell , yet the tops and lops are not tithable ; for the body of the trees being by law discharged of tithes , so shall be the branches : and therefore he that cutteth them , may convert them to his own use , if he please . pasch . . jacobi . in the exchequer chamber . kercher's case . an action upon the case was brought in the common pleas , upon a simple contract made by the testator ; which afterwards came into the exchequer chamber before all the judges . cook in the common pleas was of opinion , that the action would lie . tanfield chief baron , said , that in these cases of equitie it were most reason to enlarge and affirme the authoritie of the common law , then to abridge it , and the rather , because the like case had been oftentimes adjudged in the kings bench , and there was no reason ( as he said ) that there should be a difference betwixt the courts ; and that it would be a scandall to the common law , that they differed in opinion . afterwards at another day the case was moved in this court ; and walmesley justice doubted if as before . but foster held that the action was maintainable ; and cooke desired that presidents might be searched ; and he said , that he could not be perswaded , but if the executor be adverred to have assetts in his hands sufficient to pay the specialties , but that he should answer the debt . note , the money demanded was for a marriage portion promised by the testator . pasch . . jacobi , in the common pleas. adams and wilsons case . note , it was said , that when a false judgement passeth against the defendant , he may pray the court that it be entred at a day peremtory ; so as he may have attaint , or a writ of error . and cook chief justice said ; that if judgment in the principall action be reversed , the judgment given upon the scire facias shall also be reversed , because the one doth depend upon the other . walmesley in this case said , that it had been the usual course of this court , that if one deliver a plea unto an aturney of the court as the last terme , and it is not entred , that now at another terme the defendant might give in a new plea if he would , because the first is not upon record . pasch . . iacobi , in the common pleas. cullingworth's case . if one be bounden in an obligation , that he will give to j. s. all the goods which were devised to him by his father ; in debt brought upon such an obligation , the defendant cannot plead , that he had not any goods devised unto him , for the bond shall conclude him to say the contrary ; vide . eliz. dyer rainsford case . pasch . . iacobi , in the common pleas. quod's case . qvod had judgement in an action upon the case at the assizes , and damages were given him to thirty pound . hutton serjeant moved in arrest of judgement , that the venire facias was de duodecim , and that one of them did not appear , so as there was one taken de circumstantibus ; and the entry in the roll was , that the said jurour exactos venit ; but the word juratus was omitted : and for that cause the judgement was stayed . mich. . jacobi , in the common pleas. stone 's case . stone an atturney of the court was in execution in norfolk for one thousand pound , and by practice procured himself to be removed by habeas corpus before cook chief justice at the assizes in lent. and escaped to london ; and in easter terme the bailiffe took him again , and he brought an action of false imprisonment against the bailiffe : and it was holden by the court , that the fresh suit had been good although he had not taken him in the end of the year , if enquiry were made after him ; and so by consequence the action was not maintainable . mich. . jacobi , in the star-chamber . marriot's case . note : it was agreed in this case for law , that the sheriffe cannot collect fines or issues after a generall pardon by parliament ; and therefore one thorald , the under sheriffe of n. who did so , was questioned and punished in the star-chamber . mich. jacobi , in the common pleas. jolly woolsey's case . jolly woolsey of norfolk brought an action of trespass against a constable , of assault and battery , and imprisonment : the defendant as to the assault and battery pleaded , not guilty , and justified the imprisonment by reason of a warrant directed unto him by a justice of peace for the taking , and to imprison the plaintiffe for the keeping of an ale-house , contrary to the statute feb. . el. whereas the statute was feb. . ed. . and the matter was found by speciall verdict . and it was holden by all the justices , that the misrecitall of the act was not materiall , for it being a generall act , the justices ought to take knowledge of it . and cook chief justice said , that a man cannot plead nul tiel record against an act of parliament , although that in truth the record be imbezelled if the act be generall , because every man is privy to it . mich. . iacobi , in the common pleas. newman and babbington's case . it was resolved in this case , that if debt be brought against an executor , who pleads , that he hath fully administred ; and it is found that he hath assets to l. whereas the debt is l l , that a judgement shall be given for the l. against the defendant ; and upon that judgment , if more assets come after to the executors hand , the plaintiffe may have a scire facias . mich. . jacobi , in the common pleas. waller's case . note ; it was said by cook chief justice , that if the king present one to a benefice , and afterwards presenteth another , who is admitted , instituted , and inducted , the same is a good repeal of the first presentation . and he said , that if the lord doth present his villain to the church , the same is no enfranchisement of him , for that presentation is but his commendation . and if the king will present a french man , or a spaniard , they shall not hold the benefice within this realm , for that the same is contrary to a special act of parliament . mich. . jacobi , in the common pleas. note ; it was holden by all the justices , that perjury cannot be commited in the court of the lord of copy-holds , or in any court which is holden by usurpation ; otherwise is it in a court leet , or court baron , which is holden by title . trinit . . jacobi , in the common pleas. bury and taylor's case . in an ejectione firme brought upon not guilty , pleaded by the defendant , it was given in evidence to the jury to this effect ; viz. that one j. s. who did intend to entermarry with alice s. by indenture did covenant with j. d that he would marry the said alice , being then of the age of seventeen years ; and that after the marriage had betwixt them ; that they would levy a fine of divers lands , which said fine should bee unto the use of the said j. d. and his heirs ; and accordingly after the entermarriage the said j. s. and alice his wife did levy a fine unto the said j. d. and his heirs , without any other use implied or expressed , but what was contained in the said indenture before marriage ; and according to the said fine , the conusee continued the possession of the said lands for a long time : viz. for thirty years . cook chiefe justice said , that this continuance of possession was a strong proofe , and could not otherwise be intended , but that the conusee came to the possession of the said lands by the said fine , which was so levied to him , and his heirs . and he said , that it was adjudged in this court in the case betwixt claypoole and whestone , that in a recovery , the covenant did not lead the use of the recovery , for that it was but an evidence that such was the intent of the parties . and in this case it was agreed by the whole court , and was so said to be resolved in clogat and blythes case , . eliz. that when no use is expressed or implyed by indenture , or other agreement , that it shall be to the ancient use , viz. to the use of the conusor . as if husband and wife be seised of one moytie of the land in the right of the wife , and the husband of the other moytie by himselfe ; and they joyne in a fine generally , the conusee shall be seised to the former uses , as it is agreed in beckwiths case , c. . part . and so it was agreed , that if the husband doth declare the use , and the wife doth not disagree , or vary from it , that the declaration of the husband shall bind the wife . and cook said , that it is not alwayes necessary that the wives name be set to the indenture , which doth declare an use . and further cook said , that if a fine be levied of lands , yet the uses may be declared by subsequent indentures . and it was said ( obiter ) in this case , that if a man for valuable consideration doth purchase a lease for years ; and hee nameth two of his servants as joynt-purchasers with him in the deed ; and afterwards the master would sell the lands alone , and the servants do interrupt the sale , or will not joyne with him ; that he hath no remedy to compell them to do it , but by a bill of chancery . trinit . . jacobi , in the common pleas. a vicar was endowed in the time of king henry the d. of divers tithes ; and afterwards he libelled for those tithes in the spirituall court ; the defendant alledged a m●dus decimandi , and prayed a prohibition , and day was given to the party to shew cause , why the same should not be granted ; and at the day the deed of endowment was produced , and shewed in court. by which it did appear , that the vicar was endowed of hay . viz. of the tenth part of it ; and so of the remnant of the tithes for which he libelled ; whereupon the court refused to award a prohibition ; quaere causam . for as i conceive , a modus decimandi may accrue after the endowment . trinit . . jacobi , in the common pleas. sir w. dethick and stoke's case . stokes libelled against sir william dethick in the spirituall court , for calling of him bald priest , rascally priest , and for striking of him ; and for those offences he was fined by the spirituall court an hundred pound , and imprisoned . and the opinion of the whole court was , that neither the fine nor imprisonment were justifiable , because the statute of articuli cleri , is , non imponant poenam pecuniariam , nisi propter redemptionem , &c. and cook said , they might onely excommunicate : and thereupon a writ de excommunicat● capiendo , might be awarded ; and that is their onely course , and then the party may have his cautione admittenda ; and the court said , that if the spirituall court would not enlarge the party upon sufficient caution offered them , that then the sheriffe should deliver him . trinit . . jacobi , in the common pleas. it was the opinion of the whole court , that if a man have a judgment against two men upon a joynt bond ; that he cannot have severall executions ; viz. a capias ad satisfaciendum against the one , and an elegit against the other ; for he ought to have but unicam satisfactionem , although he sue them by severall actions . and if he sue forth severall executions , an audita querela will lye . mich. . jacobi , in the common pleas. carle's case . note , it was adjudged in this case , that if a man say of another , that he hath killed a man , an action upon the case will not lie for those words ; for he may do it as executioner of the law , or se def●nde●do ; so if one say of another , that he is a cutpurse , an action will not lie ; for that a glover doth , and a man may cut his own purse , and the same term it was holden in the kings bench , that an action will not lie for calling one witch . mich. . jacobi , in the common pleas. it was holden by the whole court , that a commoner cannot generally justifie the cutting and taking away of bushes off from the common ; but by a speciall prescription he may justifie the same . so he may say , that the commoners have used time out of mind to dig the land , to let out the water , that he may the better take his common with his cattell ; and it was agreed , that if the lord of the waste doth surcharge the common , that the commoner cannot drive his cattell off the common , or distraine them damage feasance , as he may the cattell of a stranger . but the remedy against the lord , is either an assize , or an action upon the case . mich. . jacobi , in the common pleas. it was agreed by the whole court , that if a man deviseth unto his daughter an hundred pound when she shall marry , or to his son , when he shall be of full age , and they die before the time appointed , that their executors shall not have the money ; otherwise , if the devise were to them to be paid at their full ages , and they die before that time , and make executors ; there the executors may recover the legacy in the spirituall court. hill. . jacobi , in the kings bench. royley and dormer's case . two boyes did contend and fight near unto their houses , and the one stroke the other , so as he did bleed ; who went and complained to his father , who having a rod with him , came to the other boy , and beat him ; upon which he died . and the opinion of the whole court was , that it was not murder . mich. . jacobi , in the king 's bench. edwards and denton's case . upon a special verdict , the case was , that a man was seised of the manor of d. and of a house called w. in d. and also of a lease for years in d. and he did bargain and sell unto another his manor of d. and all other his lands and tenements in dale ; and in the indenture did covenant that he was seised of the premisses in fee ( which was left out of the verdict ) and if the lease for years should pass by the general words , was the question ; quaere of the case , because trinit . . jacobi , the court was divided in opinion in this case . mich. . iacobi , in the king 's bench. hughes and keene's case . the plaintiff declared , that whereas he was possessed of a messuage for years which had ancient lights , and the defendant possessed of another house adjoyning , and a yard , that the defendant upon the said yard had built a house , and stopped his lights ; the defendant pleaded , that the custom of london was , that every man might build upon his old foundation , and if there be not any agreement , might stop up the windows of his neighbour ; upon which the plaintiff did demurre in law : and it was adjudged for the plaintiff , because that the defendant did not answer the plaintiffs charge , that he had built upon the new , and not upon the old foundation . and it was holden by the whole court in this case , that a man may build upon an old foundation by such a custom , and stop up the lights of his neighbour , which are adjoyning unto him , and if he make new windows higher ; the other may build up his house higher to destroy those new windows : but a man cannot build a house upon a place where there was none before , as in a yard , and so stop his neighbours lights : and so it was adjudged in the time of queen elizabeth , in althans case , upon such a custom in the city of york . and it was said by cook chief justice ; that one prescription may be pleaded against another , where the one may stand with the other , as it was adjudged in wright and wrights case . that a copy-holder of a bishop did prescribe , that all copy-holders within the manor have been discharged of tithes : but not where one prescription is contrary to the other ; whereas one prescribes to have lights , and the other prescribes to stop the same lights . quaere . hill. . iacobi , in the king 's bench. samford and havel's case . in an action of trespass for . hares , and . coneys hunted in his warren , taken and carried away , which trespass was layd with a continuando , from such a time , till such a time : the defendant justified , because he had common in the place where , &c. to a messuage , six yard lands for . sheep , and that he and all those whose estate he hath , time out of mind , have used at such time as the common was surcharged with coneys , to hunt them , kill and carry them , as to his messuage appertaining : upon which the plaintiff did demurre in law , because a man cannot make such a prescription in the free-warren , and free-hold of another man : and secondly , because a man cannot so prescribe to hunt , kill , and carry away his coneys , as pertaining to his messuage : but a man may prescribe to have so many coneys to spend in his house : and for these causes in the principal case , the prescription was holden for a void prescription ; and judgment was given for the plaintiff . hill. . jacobi , in the common pleas. cox and gray's case . it was adjudged upon a writ of error , brought upon a judgment given in the marshalsey , in an action of trover and conversion of goods : that if none of the parties be of the kings houshold , and judgment be given there that the same is error , and for that cause the judgment was reversed . hill. . iacobi , in the common pleas. morris's case . in an action upon the case for putting of cattel upon the common , it was adjudged ; that if the cattel of a stranger escape into the common , the commoner may distrain them damage feasance , as wel as where the cattel are put into the common by the stranger . pasch . . jacobi , in the common pleas. the lord mounteagle and penruddock's case . it was holden by the whole court in this case , and agreed by all the serjeants at the barre , that if two men submit themselves to the arbitrament of i. s. and the arbitrator doth award , that one of them shall pay ten pound , and that the other shall make a release unto him , that the same is a void award , if the submission be not by deed ; and hee to whom the release is to be made by the award , may have remedy for it , for otherwise the one should have the ten pound , and the other without remedy for the release . and it was resolved , that upon submission and arbitrament , that the party may have an action upon the case for not making of the release . and cook chief justice said , that it was wisely done by manwood chiefe baron , when he made such award , that a lease or such like collaterall thing should be done , to make his award , that he should make the release , or pay such a sum of money , for which the party might have a remedy . i conceive , that the reason is , that no action upon the case upon an arbitrament lieth ; because it is in the nature of a judgement . at another day , the opinion of the court was with cook , and . h. . and . e. , . cited to the purpose , that there ought to be reciprocall remedy . it was also said in this case , that by the statute of . h. . a man cannot be nonsuit after verdict . pasch . . jacobi , in the common pleas. cook and fisher's case . in a replevin , the defendant did avow for rent granted to him by a private act of parliament . the plaintiffe did demand oyer of the act ; and the opinion of the court was , that he ought to have oyer : for they held , that the oyer of no record shall be denied to any person , in case he will demurre . and the record of the act shall be entred in haec verba . pasch . . jacobi , in the common pleas. the bakers case of gray's-inne against occould . an action of debt was brought in london against occould late steward of gray's-inne : upon a generall indebitatas assumpsit , without shewing the particulars , which plea was removed into the common pleas. and it was holden by the court , that the action as it was brought , would not lie , for the inconvenience which might follow . for the defendant should be driven to be ready to give an answer to the plaintiffe to the generality . and therefore the plaintiffe ought to bring a speciall action for the particular things ; the like case was in the marshalsey ; and because they did not declare in a speciall manner , exception was taken to it , and adjudged , the action upon a generall indebitatas assumpsit did not lie . quaere . trinit . . jacobi , in the common pleas. read and hawe's case . in a replevin , trinit . . jacobi , r●t . . the plaintiff counted , that the defendant , cepit avena of the plaintiff apud occould : and doth not say , in quodam loco , &c. upon which the defendant did demurre in law. hutton serjeant argued for the plaintiffe , and said , that notwithstanding the many presidents which had been shewed , that yet the declaration was well enough : for he said , that the presidents did not prove , that it was necessary that it should be therein shewed , in quodam loco vocat ' , because the defendant upon the matter is the actor ; and therefore he best knows the place where he took the cattel . and in . e. . in a homine replegiando , the towne onely was named ; and it is not there debated whether the same were good without mentioning in quodam loco . . e. . . and . . h. . and . h. . there the traverse was of the taking at dale , sans ceo , &c. that the same was at sale , and in quodam loco is not expressed , cook chief justice said , that there is no book which taketh this exception : and said , that notwithstanding the presidents cited , that it was well enough : for hee said , there is a difference betwixt presidents , which are the inventions of clarks , and of judiciall presidents : and the effect of the suit in this case , is not the shewing of the place , but the having of the cattel ; and it is on the part of the defendant to shew where hee took the cattel , for perhaps the plaintiffe doth not know where he took them : and if he did know the place where they were taken , yet perhaps hee hath not witnesses to prove the same ; and so by this means the plaintiffe should be at a great mischiefe , and delayed in his suit. whereas a replevin is festinum remedium , to have his cattel again , which perhaps are his plough cattel . warburton justice said , that there is a difference betwixt actions brought in the king's bench , and in this court : for there in an action of trespasse the same may be abutted , because it is no originall writ as it is here , and hee said , that there although the place bee not certainly abutted , yet it may be good . and he compared the case at barre , to the pleading of a joynt-tenancy ; for he said , in case it bee pleaded of the part of the tenant himselfe , hee is to shew how the joynt-tenancy came , because it lyeth in his knowledge ; but contrary , if it were on the plaintiffs part . and in this case , he who best knowes when the taking was , ought to shew it , and that is the avowant ; for it is no reason that the plaintiffe for missing of the place , not being the substance , should be triced . cook , if one in the night drive my cattel into his land , and afterwards doth distrein them , it is no lawfull distresse . at another day , cook said , that in the book nov. narration ' , it is said , that the town , place , and collour of the beasts ought to bee shewed by the plaintiffe in the replevin ; and he said , if the colour had been left out , he would have given credit to the book ; but because it is clear that the colour is not needfull to be shewed , therefore he did not approve of the authority for the place . and he cited . e. . . where the defendant said , it was in the hamlet . and . e. . . e. . and e. . . where the towns only are mentioned . and it was said , that in an ejectione firme brought in the kings's bench , the usuall course is to abutt the land , yet he said , it might be omitted in trespasse , although the same be the usuall forme of that court ; and it may be generall : but if a place be alledged , then the same is materiall , and the plaintiffe doth thereby give an advantage unto his adversary . at another day haughton serjeant argued for the defendant , that the expressing of the place where the taking was , is materiall in the declaration ; and he said , that as the register is the rule for originall writs , from which forme a man may not vary ; so , he said , the book of entries and presidents of the courts , were rules for pleadings , from which there ought to be no variance ; and therefore he cited . h. . . where in a writ of entry , in the nature of an assize , the demandant counted , how that a. gave lands unto j. s. his cosen , whose heir he is in tail , and shewed the descent . and exception was taken unto the count , because it was not the forme of the pleading in that court ; wherefore it was awarded , that he should count , that ipse fuit seisitus ut de libero tenemento , which is not repugnant , although that he had an estate in tail , because the same was the ancient form used in the court. so he said in the principall case , the ancient used forme of the court ought to bee observed , which was to expresse in the count the place in which the taking was ; and hee cited . h. . . where exception was taken by the defendant , because the plaintiff in the replevin did not alledge the place where the taking was ; and therefore per curiam the plaintiffe took nothing by his writ : and he denyed the opinion of . e. . . and said , that in reason the place ought to be shewed , because if the defendant would plead any matter to the jurisdiction of the court , the place must be shewed ; and he said , that those records which were shewed on the other side were but of later times ; and the point in question , in none of those cases came in debate judicially ; wherefore he concluded for the defendant . hutton serjeant argued again , and said , that the formes of originall writs are certain , from which a man is not to vary ; but he said , that counts and declarations are to be according to the matter . and in the principall case he conceived , that it was not necessary that the place where the taking was , be shewed ; and hee cited . ed. . . in a replevin , the plaintiff declared of the taking of his cattel in holme , without saying , in quodam loco vocat ' , &c. and it was holden good , because the towne or hamlet is sufficient certain ; and . h. . . a. in a replevin , the plaintiffe declared of a taking at d. the defendant said , that he took them at s. and not at d. and avowed , and no exception was taken thereunto for want of expressing the place in quo , &c. and he said , that in . ed. . . and . it is said , that in a replevin the use is to declare in a certain place ; but if the place be omitted , yet it is good enough ; and that book is after . h. . . and hee said , that the cause of the judgement in . h. . might be , because there were blanks left for the place ; and the plaintiff had begun to alledge the certain place ; for the record is , in quodam loco vocat ' , without expressing the place , but blank , which he could not affirme ; and therefore it was adjudged against the plaintiffe ; as in a valore maritagii ; if the defendant will shew that hee tendered a mariage , whereas it is not needfull for him so to do , yet if the same be not true , and issue be taken upon it , judgement shall be given against him ; wherefore hee concluded for the plaintiffe . the principall case was adjourned . trinit . jacobi , in the common pleas. goodman and gore 's case . goodman brought an assize against gore and others , for erecting of two houses at the west end of bis wind-mill per quod ventus impeditur , &c. and it was given in evidence , that the said houses were situate about eighty feet from the said mill ; and that in height it did extend above the top of the mill , and in length it was twelve yards from the mill ; and notwithstanding this neernesse , the court directed the jury to find for the defendant . and in that evidence it appeared by a deed , procured by the plaintiff himself , that his wife was joint-tenant with him ; and therefore it was holden by the court , that the assize brought in his own name alone , was not well brought . and cook chief justice also said , that the count was not good , by reason of these words , viz. per quod ventus impeditur ; for he said , that these were the words of an action upon the case , and not of an assize . but the clarks said , that such was the usuall forme , ad quod non fuit responsum : and in that case it was said obiter by cook chief justice , that if the husband and wife be joint-tenants , and the husband sowes the land and dieth , and the wife doth survive , that she shall have the embleements . trinit . . jacobi , in the common pleas. hardingham's case . in an action of trespass , quare clausum fregit , the defendant did justifie , that he did enter and distrain for an amercement in the sheriffs torne , which was imposed upon the plaintiffe for enchroaching upon the kings high-way , without shewing that the same was presented before the justices of peace at their sessions , as the statute of . e. . cap. . requireth . haughton serjeant for stay of judgement in this case , said , that the statute is , that the justices of peace shall award process against the person who is so indicted before the sheriffe , which was not done in this case . and he said , that the statute did not extend to amercements only in trespasses , quare vi & armis , but to every other trespass ; for the statute speaks of trespasses , and other things , which shall be extended to all trespasses . cook chief justice said , that the statute of . e. . cap. . did not extend to trespasses which were not contra pacem ( as the encroachment in this case is ) for otherwise the lord of a leet could not distrain for an amercement without such presentmennt before justices of the peace . and although the statute speaks of felony , trespass , &c. the same is to be meant of other things of the same nature ; which is proved by the clause in the statute , viz. that they shall be imprisoned ; which cannot be in the principall case at bar. warburton and winch justices , agreed in opinion with cook chief justice . trinit . . iacobi , in the common pleas. fraunces and powell's case . it was moved for a prohibition to the spirituall court , for citing the plaintiffe out of his diocess upon the statute of . h. . and by the libel it appeared , that powell the defendant had complained against the plaintiffe in the court of arches , for scandalous words spoken in the parish of saint sepulchers , london . cook chief justice held , that a prohibition would lie , unlesse the bishop of london had given liberty to the arch-bishop of canterbury to entermeddle with matters within london ; for , he said , that in the statute of . h. . there is a clause of exception in case where such liberty is given by the inferior diocesan ; and therefore a day was given by the court to procure a certificate of the opinion of the civilians , whether such authority given by the inferiour ordinary to the arch-bishop , were warranted by there law or not ; for the statute of . h. . is so ; and then if the authority be lawfully granted , no prohibition will lye . and cook said ; that the statute of . h. . was made but in affirmance of the common law , as appears by the books of . h. . and . h. . for there it is said , that if one be excomenge in a forrain dioces , that the same is void , & coram non judice ; and he said , that the principal cause of making of the said statute , was to maintain the jurisdiction of inferiour diocesses . but it was holden , that if the plaintiff had defamed the defendant within the peculiar of the arch-bishop , that in such case he might be punished there , although that he did inhabit within any remote place out of the peculiar of the arch-bishop : and in this case it was said , that the arch-bishop had in thirteen parishes in london peculiar jurisdiction . it was adjorned . trinit . . jacobi , in the court of wards . cottons case . sir john tirrel tenant in capite , made a lease unto carrel for . years ; and further covenanted with carrel and his heirs , that upon payment of five shillings , that he and his heirs would stand seised of the same lands unto the use of carrel , and his heirs : and in the deed there were all the ordinary clauses of a conveyance bona fide ; viz. that the lessee should enjoy the lands discharged of all incumbrances , and that he would make further assurance , &c. carrel assigned this lease to cotton , who died in possession , his heir within age ; and in two offices , the jury would not find a tenure , because it was but a lease for years . and in a que plura , the matter came in question in the court of wards : and cook chief justice of the common pleas , and tanfeild chief baron of the exchequer , were called for assistants to the court of wards , and they were of opinion , that because it was found by the offices , that cotton died in possession , that the same was sufficient to entitle the king to wardship of the lands . but before the judges delivered there opinions , the lessee was compelled to prove the sealing of the lease by witnesses , which was dated . years before : for if they have no sufficient witnesses to prove the sealing of the lease , without all doubt , there was sufficient matter found to entitle the king , viz. that the party died in possession ; which shall be intended of an estate in fee simple , till the contrarie be proved ; but the two justices moved the attorney , that he would not trouble himself with the proof of a matter in fact : for they said , it was confessed on all sides , that there was such a lease , and that the assignee of it died in possession of the land : and therefore they said , that they were cleer of opinion , that the heir of such a lessee who died in possession should be in ward : for cook chief justice said , that all offices which are found to deceive the crown of such an ancient flower of the crown as wardship , should be void , as to that purpose , and most beneficial for the king. and he cited the case in . h. . where the kings tenant made a feoffment , and took back an estate unto himself for life , the remainder to his grand-child for . years , and died ; that in that case the heir was in ward : and they said , that in the case at barre the heir had power of the inheritance upon payment of five shillings ; and if the lease for years be found , and proved by witnesses , yet it carrieth with it the badges of fraud . and tanfeild chief baron said , that if a lease for . years shall be accounted mortmain , à fortiori this lease for . years , shall be taken to be made by fraud and collusion : and cook said , that the lord chancellour of england would not relieve such a lessee in court of equity , because the begining and ground of it is apparant fraud . note , the lands did lye in springfield in essex . trinit . . jacobi , in the common pleas. meades case . an action of debt was brought upon a bond against meade , who pleaded , that the bond was upon condition , that if he paid ten pound to him whom the obligee should name by his last will , that then &c. and said , that the obligee made his will , and made executors thereof , but did not thereby name any person certain to take the ten pound . sherley serjeant moved , that the executors should have the ten pound , because they are assignees in law , as it is holden in . h. . . but the whole court was of opinion , that the executors were not named in the will for such a purpose . viz. to take the ten pound ; for they said , it is requisite that there be an express naming who shall take the ten pound , otherwise the bond is saved , and not forfeited . and cook put this case , if i be bounden to pay ten pound to the assignee of the obligee , and his assignee makes an executor , and dieth , the executor shall not have the ten pound . but if i be bounden to pay ten pound to the obligee , or his assignees , there the executor shall have it , because it was a duty in the obligee himself ; the same law , if i be bound to enfeoffe your assignees , &c. wherefore it it was adjudged for the defendant . trinit . . jacobi , in the common pleas. greenway and baker's case . it was moved , and afterwards resolved in the case of a prohibition , prayed to the court of admiralty , that if a pirat taketh goods upon the sea , and selleth them ; that the property of them is changed no more , then if a theife upon the land steales them , and selleth them . and in this case it appeared by the libell , that bona piratica fuerint infra portam argier super altum mare . and for that cause a prohibition was denied , because argier being a forrain port , the court could not take notice whether there were such a place of the sea called the port , or whether it were within the land , or not : afterwards upon the mediation of the justices , the parties agreed to try the cause in the guild-hall in london , before the lord chiefe justice cook. trinit . jacobi , in the common pleas. . sir francis fortescue , and coake's case . upon an evidence in an ejectione firme betwixt the plaintiffe and defendant , the court would not suffer depositions of witnesses taken in the court of chancery , or exchequer , to be given in evidence , unlesse affidavit be made , that the witnesses who deposed were dead . and cook chiefe justice said ( nullo contradicente ) that it is a principall challenge to a jurour , that he was an arbitrator before in the same case , because it is intended , that he will incline to that partie to which he inclined before : but contrary is it of a commissioner , because he is elected indifferent . and it was also said in this case , that one who had been solicitor in the cause , is not a fit person to be a commissioner in the same cause . trinit . . jacobi , in the common pleas. barker serjeant , in arrest of judgement , moved , that the venire facias did vary from the roll in the plaintiffs name ; for the roll was peter percy , and the venire facias , john percy , and the postea was according to the roll , which was his true name . the court doubted whether it might be amended , or whether it should be accounted as if no venire facias had issued , because it is betwixt other parties . but it was holden , that in case no venire facias issueth , the same is holpen by the statute of jeofailes , and in this case it is in effect as if no venire facias had issued forth ; and so it was adjudged . and cook chiefe justice said , that if there be no venire facias , nor habeas corpora , yet if the sheriffe do return a jury , the same is helped by the statute of jeofailes . warburton justice contrary , vide c. . part bishops case . and harris serjeant vouched trinit . . jacobi , rot. . in the exchequer , herenden and taylors case to be adjudged as this case is . trinit . . jacobi , in the common pleas. brown's case . it was holden by the whole court in this case , that if a man hath a modus decimandi for hay in black-acre ; and he soweth the said acre seven years together with corn , that the same doth not destroy the modus decimandi , but the same shall continue when it is again made into hay . and when it is sowed with corn , the parson shall have tithe in kind ; and when the same is hay , the vicar shall have the tithe hay , if he be endowed of hay . trinit . . jacobi , in the common pleas. james and ratcliff's case . in debt upon a bond to perform such an agreement , the defendant pleaded quod nulla fuit conclusio-sive agreeamentum : the plaintiff said , quod fuit talis conclusio & agreeamentum , & de hoc ponit se super patriam . the court held the same was no good issue , because a negative and an affirmative . trinit . . jacobi , in the common pleas. wetherell and green's case . it was said by the pronothories , that if a nihil dicit be entred in trinity term , and a writ of enquiry of damages issueth the same term , that there needs not any continuance ; but if it be in another term , it is otherwise . the court said , if it were not the course of the court , they would not allow of it ; but they would not alter the course of the court : the words of continuance were , quia vicecomos non misit brev . trinit . . jacobi , in the common pleas. parrot and keble's case . a man levied a fine unto the use of himself for life , the remainder in tail , &c. with power reserved to the conusor to make leases for eighty years in possession or reversion , if a. b. and c. did so long live , reserving the ancient rent ; afterwards he granted the reversion for eighty years , reserving the ancient rent : the question was , whether he had pursued his authority , because by the meaning of the proviso a power was , that the conusor should have the rent presently , or when the term did begin . but the opinion of the court was , that he had done lesse then by the proviso he might have done , for this grant of the reversion doth expire with the particular estates for life . but if he had made a lease to begin after the death of the tenants for life , the same had been more then this grant of the reversion . and cook chief justice said , that the grantor may presently have an action of debt against the grantee of the reversion for the rent . but because it was not averred that any of the cestuy que viei were alive at the time when the grantor did distrain for the rent , judgement in the principall case was respited . trinit . . jacobi , in the common pleas. upon the statute of bankrupts , this case was moved to the court , if a bankrupt be endebted unto one in twenty pounds , and to another in ten pounds ; and he hath a debt due to him by bond of twenty pounds ; whether the commissioners may assigne this bond to the two creditors jointly ; or whether they must divide it , and assigne twenty marks to the one , and twenty marks to the other . and the court was of opinion , that it was so to be divided as the words of the statute are , viz , to every creditor a portion , rate and rate like , &c. and then it was moved , how they might sue the bond , whether they might joine in the suit or not ? ad quod non fuit responsum by cook. warburton justice said , that when part of the bond is assigned to one , and part to another , that now the act of parliament doth operate upon it , and therefore they shall sue severally ; for he said , that by the custome of london , part of a debt might be attached : and therefore he conceived part might be sued for . trinit . . jacobi , in the common pleas. sprat and nicholson's case . sprat sub-deacon of exeter , did libel in the spiritual court against nicholson parson of a. pro annuali pensione , of thirty pound , issuing out of the parsonage of a. and in his libel shewed , how that tam per realem compositionem , quam per antiquam & laudabilem consuetudinem , ipse & predecessores sui habuerunt & habere consueverunt praedictam annualem penfionem out of his parsonage of a. dodderidge serjeant moved for a prohibition in this case , because he demands the said pension upon temporall grounds ; viz. prescription and reall composition . but cook chief justice , and the other justices were of opinion , that in this case no prohibition should be granted ; for they said , that the party had election to sue for the same in the spirituall court , or at the common law , because both the parties were spirituall persons ; but if the parson had been made a party to the suit , then a prohibition should have been granted ; vide fitz. nat. brev. . b. acc . and they further said , that if the party sueth once at the common law for the said pension ; that if he afterwards sue in the spirituall court for the same , that a prohibition will lie , because by the first suit he hath determined his election . and cook cited . e. . . where the parson brought an action of trespass against the vicar for taking of under-woods , and each of them claimed the tithes of the under-woods by prescription to belong unto him ; and in that case , because the right of the tithes came in question , and the persons were both of them spirituall persons , and capable to sue in the spirituall court ; the temporal court was ousted of jurisdiction . but he said , that if an issue be joined , whether a chappel be donative or presentative , the same shall be tryed by a jury at the common law. and in this case it was said by the justices , that the statute of . h. . doth authorize spiritual persons to sue lay-men for pensions in the spiritual courts ; but yet they said , that it was resolved by all the judges in sir anthony ropers case , that such spiritual persons could not sue before the high commissioners for such pensions ; for that suits there must be for enormious offences only : and in the principall case the prohibition was denyed . trinit . . jacobi , in the common pleas. sir baptist hix , and fleetwood and got's case . fleetwood and gots by deed indented , did bargain and sell weston park , being three hundred acres of lands , unto sir baptist hix , at eleven pound for every acre , which did amount in the whole to two thousand five hundred and thirty pounds : and in the beginning of the indenture of bargain and sale , it was agreed betwixt the parties , that the said park , being much of it wood-land , should be measured by a pole of eighteen foot and a halfe . and further it was covenanted , that fleetwood and gots should appoint one measurer , and sir baptist hixe another , who should measure the said park ; and if upon the measuring it did exceed the number of acres mentioned in the indenture of sale ; that then s. baptist hixe should pay to them acording to the proportion of l. for every acre ; and if it wanted of the acres in the deed , that then fleet ' and gots should pay back to s. baptist the surplusage of the mony according to the proportion of . l. for every acre . and upon this indenture sir baptist hixe brought an action of covenant against fleetwood and gots , and assigned a breach , that upon the measuring of it , it wanted of the acres mentioned in the deed acres : and upon the declaration , the defendants did demurre in law ; and the cause of the demurrer was , because the plaintiff did not shew by what measure it was measured . and therefore sherley serjeant , who was of councel with the defendants , said , that although it was agreed in the beginning of the deed , that the measure should be made by a pole of feet and a half : yet when they come to the covenants , there it is not spoken of any measure at all ; and therefore ( he said ) it shall be taken to be such a measure which the statute concerning the measuring of lands speaks of , viz. a measure of sixteen foot and a half to the pole ; and he said , that by such measure there did not want any of the said three hundred acres mentioned in the deed. dodderidge serjeant contrary for the plaintiff , and he layed this for a ground : that if a certainty doth once appeare in a deed , & afterwards in the same deed it is spoken indefinitely , the same shall be referred to the first certainty , and to that purpose he vouched the case in dyer : lands were given by a deed to a man , & haeredibus masculis ; and afterwards in the same indenture it appeared , that it was haeredibus masculis de corpore , and therefore it was holden but an estate in tail , because the first words were indefinite , and the later words were certain , by which his intent did appeare to pass but an estate in tail . he also cited . e. . . b. the words of an obligation were noverint universi per praesentes , me i. s. teneri , &c. w. b. in ten pound solvendum eidem i. and it was holden by the whole court , that the same did not make the bond to be void , because it appeared by the promises of the bond , to whom the mony was in law to be paid , and the intent so appearing , the plaintiff might declare of a solvendum to himself ; and the word ( i ) should be surplusage . and . e. . . a. b. the abbot of selbyes case : where the abbot of selby did grant annualem pensionem to b. ad rogatum i. e. illam scilicet quam i. e. habuit ad terminum vitae suae , solvendum quousque sibi , &c. de beneficio provisum fuerit , and it was holden by the whole court in a writ of annuity brought , that [ sibi ] did referre to b. the grantee , and not to i. e. and cook chief justice said , that the original contract doth leade the measure in this case ; and to that purpose he cited kiddwellies case in the commentaries , where a lease was made rendring rent at mich. at d. and if it were behind by a month after demand , that the lessor might reenter ; the demand must be at the first place , which is in that case alledged to be certain : viz. at d. the case was adjorned . trinit . . jacobi , in the common pleas. sir henry lea and henry leas case . sir henry lea was committed to the fleet , for the disobeying of a decree made in the court of requests : and having suits depending in the court of common pleas , he prayed a writ of hab●as corpus , which was granted ; and upon the return of the writ , the cause of his commitment appeared to be for a contempt for not performing of the said decree , and no other cause appeared in the return : and the court were of opinion , that they could not deliver him , because that no cause appeared in the return to warrant their delivery of him : and the court said , that if the return be false , yet they cannot deliver the party ; but the party may have his action of false imprisonment , if the imprisonment be not lawfull : but then it was shewed by mountague serjeant to the court , that the decree was made in the court of requests upon a bill containing this matter , viz. that henry lea pretending title unto lands which sir henry lea held by descent from his unkle sir henry lea ; shewed his title to the kings majestie , and thereupon the king upon the petition of henry lea , sends for sir henry lea , and had speech with him , that he would give unto the said henry lea some recompence for his title which he pretended to have to the said lands : and that thereupon the said sir henry lea , at the instance of the kings majestie , did promise the king , that if the said henry lea would not molest him for any of the said lands , which he had by descent from his said unkle ; that then he the said sir henry lea would give unto the said henry lea two hundred pound per annum : and for not performance of this promise made to the king , henry lea exhibited his bill in the court of requests , upon which the said decree was grounded : the said sir henry lea answered , that he did not know of any such promise he made to the kings majestie ; and pleaded to the jurisdiction of the court : but upon a certificate made by the kings majestie , that he made such a promise unto him , the court of requests made the said decree , which certificate was mentioned in the body of the said decree : and mountegue prayed , that because it appeared that the said henry lea had remedy by way of action upon the case at the common law , upon the said promise , that this court would grant a prohibition in this case unto the court of requests , and deliver the party from his imprisonment . but the court said , that they would advise of the case , because they never had heard of the like case . but cook chief justice advised sir henry lea to agree the matter betwixt him , and his kinsman henry lea ; for he said , that he had learned a rule in his youth , which was this , viz. cum pare luctare dubium , cum principe stultum est ; cum puero poena ; cum muliere pudor . trinit . . jacobi , in the common pleas. garven and pym's case . garven libelled against pym for a seat in the church before the bishop of exeter , in the spiritual court there ; which by appeal was removed into the court of arches ; and the defendant did surmise in the court of common pleas , that he and his ancestors have used time out of mind , &c. to have an isle with a seat in the said church , for himself and his family ; and thereupon prayed a prohibition . but because it did appear upon examination of the party himself , that the parish have alwayes used to repair the said isle and seat , the court would not grant a prohibition in this case , for that proves that his ancestors were not the founders of the said isle and seat ; also another man hath alwayes used to sit with him in the same seat , which also proves that it doth not belong to him alone . cook chief justice said , that if a gentleman with the assent of the ordinary , hath built an isle juxta ecclesiam , for to set convenient seats for him and his family , and hath alwayes repaired the same at his own costs and charges ; in such case , if the ordinary place another man with the founder , without his consent , in the same seat , that he may have his action upon the case against the ordinary : and if he be impleaded in the spirituall court for such seat , that a prohibition will lie : and he said , that the heydons in norfolk have built such an isle next to the church , and placed convenient seats there for them , and their family . but he said , that if a man with the assent of the ordinary , set up a seat in navi ecclesiae for himselfe , and another man doth pull up the same , or defaceth it , trespas vi & armis will not lie against him , because the freehold is in the parson ; and he hath no remedy for the same , but to sue the party in the ecclesiastical court. and . e. . . the dame wiches case was vouched , where she brought an action of trespasse against the parson , for taking away her husbands coat-armour , which was fixed to the church at his funerall , and it was adjudged that the action would lie ; and so will an action in such case brought by the heir . and cook said , that the ordinary hath the onely disposing of seats in the body of the church ; with which agrees the opinion of hassey , in . h. . and if the ordinary long time past hath granted to a man and his heirs such seat , and he and his heirs have used to repair the said seat : if another will libell against him in the spirituall court for the same seat , he shall have a prohibition . and he said , that he had seen a judgement in . e. . that if executors lay a grave stone upon the testator in the church , or set up his coat-armour in the church ; if the parson or vicar doth remove them , or carry them away , that they , or the heir , may have their action upon the case against the parson or vicar . note , in the principall , no prohibition for the reasons before . trinit . . jacobi , in the common pleas. the archbishop of york & sedgwick's case . the archbishop of york and doctor ingram , brought and exhibited a bill in the exchequer at york , upon an obligation of seven hundred pound , and declared in their bill , in the nature of an action of debt brought at the common law : which matter being shewed unto the court of common pleas by sedgwick , the defendant there ; a prohibition was awarded to the archbishop , and to the said court at york . and cook chief justice gave the reasons , wherefore the court granted the prohibition . . he said , because the matter was meerly determinable at the common law ; and therefore ought to be proceeded in according to the course of the common law. . although the king hath granted to the lord president , and the councel of york to hold pleas of all personall actions ; yet ( he said ) they cannot alter the form of the proceedings . for as . h. . . is , the king by his grant cannot make that inquirable in a leet , which was not inquirable there by the law ; nor a leet to be of other nature then it was at the common law. and in . h. . it is holden , that the pope , nor any other person can change the common law , without a parliament . and cook vouched a record in . h. . that the king granted to both the universities , that they should hold plea of all causes arising within the universities , according to the course of the civil law ; and all the judges of england were then of opinion , that that grant was not good , because the king could not by his grant alter the law of the land ; with which case agrees . h. . . . e. . . and . h. . but at this day , by a speciall act of parliament , made . eliz. not printed . the universities have now power to proceed and judge according to the civil law. . he said , that the oath of judges , is , viz. you shall do and procure the profit of the king , and his crown , in all things wherein you may reasonably effect and do the same . and he said , that upon every judgement upon debt of forty pound , the king was to have ten shillings paid to the hamper , and if the debt were more , then more . but he said , by this manner of proceeding by english bill , the king should lose his fine . . he said , that if it was against the statute of magna charta , viz. nec super eum ibimus , nec super eum mittemus , nisi per legale judicium parium suorum , vel per legem terrae . and the law of the land , is , that matters of fact shall be tried by verdict of twelve men ; but by their proceedings by english bill , the partie should be examined upon his oath ; and it is a rule in law , that nemo tenetur seipsum prodere : and also he said , that upon their judgement there , no writ of error lyeth : so , as the subject should by such means be deprived of his birth-right . . it was said by all the justices , with which the justices of the king's bench did agree ; that such proceedings were illegall . and the lord chancellor of england would have cast such a bill out of the court of chancery : and they advised the court of york so to do : and a prohibition was awarded accordingly . trinit . . jacobi , in the common pleas. doctor hutchinson's case . doctor hutchinson libelled in the spirituall court against one of his parishioners for tithes ; the defendant there shewed , that the doctor came to the parsonage by symony and corruption : and upon suggestion thereof made in the common pleas , prayed a prohibition . doctor hutchinson alledged that he had his pardon , and pleaded the same in the spirituall court. and notwithstanding that , the court granted a prohibition , because the pardon doth not make the church to be plena , but maketh the offence onely dispunishable . but in such case , if the king doth present , his presentee shall have the tithes . trinit . . jacobi , in the common pleas. note , by cook chief justice , that these words , viz. thou wouldest have taken my purse from me on the high way , are not actionable ; but thou hast taken my money , and i will carry thee before a justice , lay felony to thy charge , are actionable . mich. . jacobi , in the common pleas. hatch and capel's case . in an action upon the case upon an assumpsit brought against the defendant , the plaintiffe declared , how that one hallingworth who was the defendants husband , was indebted unto the plaintiffe eight pound ten shillings for beer ; and that he died , and that after his death the plaintiff demanded the said mony of the defendant his wife ; and she , in consideration that he would serve her withbeer , promised that she would pay unto the said plaintiff eight pound ten shillings , and for the rest of the beer , at such a day certain . and the plaintiffe did averr , that he did sell and deliver to her beer , and gave her day for the payment of the other money , as also for the beer delivered unto her ; and that at the day she did not pay the money . cook and all the other justices agreed , that the action would well lie , and that it was a good assumpsit , and a good consideration ; for they said , that the forbearance of the money is a good consideration of it selfe ; and they said , that in every assumpsit , he who makes the promise ought to have benefit thereby ; and the other is to sustain some losse . and judgement was given for the plaintiff . mich. . jacobi , in the common pleas. norton and lysters case . in the case of a prohibition , the case was this , queen elizabeth was seised of the manor of nammington , which did extend into four parishes , viz. stangrave and three other . and the plaintiff shewed , that he was seised of three closes in stangrave ; and prescribed , that the said queen , and all those whose estate he hath in the said closes , had a modus decimandi for the said three closes , and for all the demeanes of the said manor in stangrave . and whether the venire facias should be de parochia de stangrave , or of the manor , was the question . and it was resolved by the whole court , that the visne should be of the parish of stangrave and not of the manor . and the difference was taken , when one claimes any thing which goes unto the whole manor , and when only to parcel of it ; for in the one case the visne shall be of the manor , in the other not ; vide . eliz. dyer . ar . but it was said , that in this case the modus did extend only to things in stangrave , and therefore the visne should be of stangrave only . nichols justice said , that although the parish be a town , and of one name , yet the visne shall be from the parish , to which the court agreed . and in the principall case , the pleading was , that the manor was in parochia , and the modus alledged to be in parochia , and the prohibition de parochia ; and therefore the venire facias ought to be de parochia , and not de manerio , or de vill●● . cook cited . e. . and . e. . that in trespass de parochia is a good addition , for it shall not be intended , that there are two towns in one parish : and it was said by the court in this case , that before the statute of . e. . all prohibitions to the spirituall court were quia secutus est de laico feodo : for when a man had a modus dicimandi , the corn and other things were lay things . then it was moved by a serjeant at bar , that at the assizes where the tryall of the modus decimandi was , one of the principal panel did appear only upon the venire facias ; and the question was , if in such case a tales might be awarded de circumstantibus . and it was holden by the court , that such tales might be well awarded ; and . eliz. dyer vouched to prove the same . it was also said by the court , that at the common law ( if not in appeal ) the tales might be of odd number , as quinque tales , or novem tales ; but now since the statute of . h. . the tales may be even or odd , as pleaseth the party . but it was adjudged in this case , that in no case where a triall is at the bar , shall any tales de circumstantibus be awarded . and so are all the presidents . mich. . jacobi , in the common pleas. leighton against green and garret . thomas leighton an administrator durante minori 〈◊〉 of j. s. did libell in the court of admiralty against the defendants ; and shewed in the libel , that there were covenants made betwixt them by a charter party , they being owners of the ship called the mary and john of lynn , that the defendants should victuall the said ship for a voyage into denmark ; and that the ship should be staunch and without leak . and shewed in his libel , that the ship being upon the seas did spring a leak , by reason of which the plaintiff did lose a great part of the freight of the said ship , consisting in divers commodities , viz. coney skins . the defendant pleaded , that the covenants were made infra portum de lynn : and further pleaded , that the plaintiffe had before that time brought an action of covenants against the same defendant , upon the same deed , in which action the plaintiffe was non-suit ; and it was adjudged , that it was a good plea in bar ; and thereupon a prohibition was awarded to the court of admiralty . cook chief justice in this case said , that charter party , est charta partita , and is all one in the civil law , as an indenture is in the common law. and in this case it was adjudged , that the triall should be there where the contract was made ; and so was it adjudged in constantine and gynns case . where the originall act was in england , and the subsequent matter upon the sea , the tryall shall be where the originall act is done . and so it was agreed in this case , that the tryal should be . mich. . jacobi , in the star-chamber . miller against reignolds and basset . sir henry mountagu the kings serjeant did informe the lords in the star-chamber , how that the defendants had conspired and practised malitiosè to draw the plaintiffs life in question , being a man of one thousand pounds per annum , and otherwise very rich . the case was shortly thus , basset the defendant was tenant unto the plaintiffe of a house in r. in kent , rendring a rent ; the rent was behind , and the plaintiff demanded his rent of him ; the defendant told him , that he was not able to satisfie him the rent , but he promised to give unto the plaintiffe all his goods in satisfaction of the rent , or so many of them as should countervaile the rent ; and it was agreed betwixt the plaintiff and the defendant basset , that the goods should be apprised by two men , which was done accordingly , and the plaintiff came to the defendants house at the time the said goods were apprised , but it was deposed and proved , did not go out of the room where the apprisement was made at the time he was in the said house , which was the of may . jacobi , ar . afterwards the defendants , reignolds ( being an atturny at law ) and basset , did conspire to accuse the plaintiffe , because that when he came to the defendant bassets house at the time of the apprising of the said goods , that the plaintiffe went up into an upper chamber in the said house , and broke up a chest , and out of the same took a gold ring , . s. in money , and the defendant bassets lease of his house ; and thereupon brought the plaintiff before divers justices of the peace , who upon examination of the matter , found no ground of suspicion against the plaintiff , and therefore they did not bind him over to the sessions to answer the same accusation . after this the defendants made severall motions to the plaintiff that he would give unto them l. and so he should be acquitted , and there should be no proceeding against him ; and because the plaintiffe refused so to do , they told him that divers courtiers had begged his estate of the king , and that the same was granted unto them ; when as in truth , there was not any thing moved to any courtier of any such matter , but all this was said in a shew only , to the end they might get great sums ef mony from him . and in that matter they layed the scandall upon s. rob. car then viscount rochester , that he was made privy to it , who then was the kings maj. great favorite . and when all this could not prevail to gain any composition from the plaintiff , the defendants did prefer a bill of indictment at the assizes in kent against the plaintiff ; and there , upon evidence given unto the grand jury , they found an ignoramus upon the bill : and divers other plots and divises were contrived by the defendants , & all to the end , the plaintiff might lose his life & his estate . and this matter came to sentence before the lords , and the bill proved in every point and circumstance , as well by the confession of the defendants themselves , as by divers writings , depositions of witnesses , and letters read and shewed in open court ; and it was said by the whole court of lords in this case , that this was a very great offence , and an offence in capite ▪ and that if such practices should be suffered and go unpunished , that no mans life was in safety , but in continual jeopardy : and therefore in this case , it was said , that pregnant presumption had been sufficient to have acquited the plaintiff ; but here the case was very cleer , because the matter was confessed by the parties defendants themselves . and in this case , cook chief justice , and the lord chancellour said , that a conspiracy ought not to be onely false , but malitiose contrived , otherwise it will not be a conspiracy , and such malice ought to be proved ▪ for if a poor man travelling upon the high-way , be robbed by another man , and he knows not the party , if afterwards he do accuse such a one of the robbery , and the party accused be found not guilty ; he shall not have an action of conspiracy against the accuser ; for although he was falsly accused , yet he was not malitiously accused ; and it might be , that he took him to be the offender , because he was like unto him who robbed him . secondly , it was said by them , that by the law , no man may begg the lands or goods of another man upon such an accusation , until the party be convict of the fact ; and that for divers causes . . because before conviction , the king hath not an interest in them ; for the goods are not forfeit . and . because the party till his conviction , ought to have his goods to maintain himself with them . and . because the goods cannot be seised upon for the kings use before conviction , although they may be put in salva custodia ; and therefore they said , that this was a very great slander which the defendants layed upon the lord viscount rochester , viz. that he had begged the plaintiffs goods of the king before he was convicted ; and it was said , that if such goods should be begged before conviction of the party , that the same would be a main cause , that the jury will not find the indictment against the party , when they are sure his lands , goods , and other estate shall be in anothers person , and so by consequence should be a great cause that the king might be defrauded of the forfeiture of the goods of fellons : and further , it would be a great cause of rebellion , if such lands and goods should be seised upon and given away before conviction of the party accused . and as the lord chancellour said , the same was the cause of the great rebellion in the time of king henry the sixth , because the goods of divers were given away to other men before the parties were convicted : and cook said , that it appeareth , that this was not onely a scandal of divers gentlemen of worship whom the defendants had abused in this thing , but even of the king himself : and it was not onely scandalum magnatum : but scandalum magistr . magnatum : and he said , that it appears in britton , that if a rebel or base fellow do strike a man of dignity , that he shall lose his right hand : à fortiori , in such case when they defame and scandalize them by such impudent practices , that they be grievously punished : and it should be a very unhappy estate to be a rich-man , if such offences should not severely be punished , & multi delicti propter inopiam . the sentence against the said defendants was this : reignolds being an attorney to be degraded , cast over the common pleas barre , and both the defendants to lose their eares ; to be marked in the face with a c. for conspirators , to stand upon the pillory with papers of there offences , to be whipped , and each of them fined to the king in . pound : and according to this sentence , reignolds the same mich. term was cast over the common pleas barre by the cryers of the court ; and the other part of the sentence executed on them both . mich. . jacobi , in the common pleas. cookes case . in a writ , quare intrusit , maritagio non satisfacto : it was found for the plaintiff , but no damages were assessed by the jury ; and the value of the marriage was found to be . pound . and now the question was , whether the same might be supplied by a writ of enquire of damages , and the court primâ facie seemed to doubt of the case : for where the party may have an attaintment , there no damages shall be assessed by the court , if the same be not found by the jury ; and therefore the court would be advised of it : but afterwards in the same term it was adjudged , that no writ of enquire of damages should issue ; but a venire facias de novo was granted to try the issue again . vide . e. . the opinion of thorpe acc . note , this was the last case that cook chief justice did speak to in the common pleas , for this day he was removed from that court , and made chief justice of the kings bench. mich. . jacobi , in the common pleas. wedlock and harding's case . the case was this : a man seised of a messuage holden in socage in fee , by his will in writing devised the same to his cosen by these words , viz. i devise my messuage where i dwell to my cosen harding , and her assignes , for eight years . and also my cosen harding shall have all my inheritances . if the law will. and it was adjudged by the whole court without argument , that this was a devise of the messuage in fee by these words , and that all his other inheritances passed by the said will by those generall words . mich. . jacobi , in the common pleas. rosser against welch and kemmis . in an action of debt brought against the defendants , upon severall praecipes one judgement is given ; and the plaintiffe takes forth a capias against one of them , and arrests his body , and afterwards hee takes a fieri facias against the others : and the question was , whether the severall executions should be allowed ? and the court was of opinion , they should not ; for that a man shall have but one satisfaction . and therefore in the principall case , because that upon the fieri facias twenty five pounds was levied ; if the other who is in prison upon the execution will pay the other twenty five pound , ( the whole judgment being but fifty pound ) the court awarded that the prisoner should be discharged : and the court was clear of opinion , that the partie cannot have a fieri facias against one , and a capias ad satisfaciendum against the other : but it was agreed , that he might have a capias against them both . as if a man hath one judgement against seven persons , he may take all their bodies in execution , because the body is no satisfaction , but onely a gage for the debt ; and therewith agreeth . h. . . e. . . and c. . part bamfeild's case . mich. . jacobi , in the common pleas. jenoar and alexander's case . it was moved for a prohibition to the court of requests , because that the court held plea of an attornment ; for the complaint there was to compel a man to attorn upon a covenant to stand seised to uses . and per curiam a prohibition shal be awarded . and cook chief justice said , that there were three causes in the bill , for which a prohibition should be granted , which he reduced to three questions . . if a copy-holder payeth his rent , and the lord maketh a feoffment of the manor , whether the copy-holder shall be compelled to attorn ? . if a man be seised of freehold land , and covenants to stand seised to an use , whether in such case an attornment be needfull ? . if a feoffment be made of a manor by deed , whether the feoffee shall compell the tenants to attorn in a court of equity ? and for all these questions , it was said , that the tenants shall not be compelled to attorn ; for upon a bargain and sale , and a covenant to stand seised , there needs no attronement . and cook in this case said , that in . e. . the justices said , that all causes may be so contrived , that there needed to be no suit in courts of equity ; and it appears by our books , that a prohibition lies to a court of equity , when the matter hath been once determined by law. and . e. . tit. prohibition , and the book called the diversity of courts , which was written in the time of king henry the eighth , was vouched to that purpose : and the case was , that a man did recover in a quare impedi● by default ; and the patron sued in a court of equity , viz. in the chancery : and a prohibition was awarded to the court of chancery . mich. : jacobi , in the common pleas. sir john gage and smith's case . an action of waste was brought , and the plaintiffe did declare , that contrary to the statute , the lessee had committed waste and destruction in uncovering of a barn , by which the timber thereof was become rotten and decayed ; and in the destroying of the stocks of elmes , ashes , whitethorn and blackthorn , to his damage of three hundred pound . and for title shewed , that his father was seised of the land , where &c. in fee , and leased the same to the defendant for one and twenty years , and died ; and that the land descended to him as his son and heir ; and shewed , that the waste was done in his time , and that the lease is now expired the defendant pleaded the generall issue , and it was found for the plaintiffe , and damages were assessed by the jury to fifty pound . and in this case it was agreed by the whole court , . that if six of the jury are examined upon a voyer dire , if they have seen the place wasted , that it is sufficient , and the rest of the jury need not be examined upon a voyer dire , but onely to the principall . . it was agreed , if the jury be sworn that they know the place , it is sufficient , although they be not sworn that they saw it ; and although that the place wasted be shewed to the jury by the plaintiff's servants , yet if it be by the commandment of the sheriffe , it is as sufficient , as if the same had been shewed unto them by the sheriff himselfe . . it was resolved , that the eradicating of whitethorn is waste , but not of the blackthorn ; according to the books in . e. . and . h. . but if the blackthorn grow in a hedg , and the whole hedg be destroyed the same is waste by cook chief justice . it was holden also so , that it is not wast to cut quick-set hedges , but it shall be accounted rather good husbandry , because they will grow the better . . it was agreed , that if a man hath under-woods of hasell , willowes , thornes , if he useth to cut them , and sell them every ten years ; if the lessee fell them , the same is no wast ; but if he dig them up by the roots , or suffereth the germinds to be bitten with cattel after they are felled , so as they will not grow again , the same is a destruction of the inheritance , and an action of wast will lie for it . but if he mow the stocks with a wood-sythe , ( as he did in the principall case ) the same is a malicious wast ; and continuall mowing and biting is destruction . . it was said , that in an action of wast a man shall not have costs of suit , because the law doth give the party treble damages . and when the generall issue ( nul . wast ) is pleaded , and the plaintiff counted to his damages l. the court doubted whether they could mitigate the damage . but . it was agreed , that in the principal case , ( although the issue were found for the plaintiff ; ) that he could not have judgment , because he declared of wast done in . several closes , to his damage of l. generally , and did not sever the damages . and the jury found , that in some of the said closes there was no wast committed . wherefore the court said , he could not have judgement through his own default . but afterwards at another day , hobart then chief justice , and warburton justice , said , that the verdict was sufficient , and good enough ; and so was also the declaration , and that the plaintiffe might have judgment thereupon . but yet the same was adjourned by the court untill the next term. mich. . jacobi , in the common pleas. clark's case . note , it was said by cook , chief justice , and agreed by the whole court , and . and . e. . &c that if a man deliver money unto i. s. to my use , that i may have an action of debt , or account against him for the same , at my election . and it was agreed also , that an action of trover lieth for money , although it be not in bags : but not an action of detinue . mich. . jacobi , in the common pleas. ireland and barker's case . in an action of wast brought , the writ was , that the abbot and covent had made a lease for years , &c. and it was holden by the court that it was good , although it had been better , if the writ had been , that the abbot with the assent of the covent made the lease , for that is the usuall form ; but in substance the writ is good , because the covent being dead sons in law , by no intendment can be said to make a lease ; but the dean and chapter ought of necessity to joyne in making of a lease , because they are all persons able ; and if the dean make a lease without the chapter , the same is not good , per curiam , if it be of the chapter lands . and in adams and w●o●●stey's case , harris serjeant observed , that the lease is said to be made by the abbot and covent ; and it is not pleaded to be made by the abbot with the assent of the covent . mich. iacobi , in the common pleas. the dean and canons of winsor and webb's case . in this case it was holden by the court , that if a man give lands unto dean and canons , and to their successors , and they be dissolved ; or unto any other corporations ; that the donor shall have back the lands again , for the same is a condition in law annexed to the gift ; and in such case no writ of escheat lieth , yet the land is in him in the nature of an escheat . and the principall case was , that a prescription was shewed of a discharge of tithes in an abbot , prior , and covent , and that the corporation was afterwards dissolved , because all the monks died , and the abbot also . and it was holden by the court , that he who is now owner of it , and holdeth the lands , shall pay tithes ; for a lay man cannot prescribe in non decimando ; and the prescription continues no longer then the lands continued in the abbot and covents hands . and in this case it was said by cook. that there are only three manner of escheats : . abjurat regnum . . quia suspensus per collum . . quia utlagatus : but because they sued for the treble value in the spiritual court , a prohibition was awarded ; but the parson may sue for the double value in the spirituall court , and no prohibition will lie , for that is given by the expresse words of the statute of . e. . and so it was adjudged in manwoods case in the exchequer . and the word [ forfeiture ] in the statute doth not give the treble value to the king , but to the parson himself . also it was holden by cook and warburton , justices , that if a rent be granted to one and his successors , and the corporation be dissolved , that the rent shall revert to the donor : and there is no difference as to the matter , betwixt things which lie in prender , and things which lie in render nichols justice contrary , that the rent extinguishes in the land it sel● ▪ and in the principall case , because they sued in the spirituall co●● for the treble value , a prohibition was granted 〈…〉 mich. . jacobi , in the common pleas. porter's case . in a writ of dower brought , the defendant was essoygned , and had the view , and afterwards pleads tout temps prist to render dower ; and they were at issue , which was found for the plaintiff , and judgment was given for the plaintiff . it was holden by the whole court , that before execution be awarded , the plaintiff in dower may aver , that her husband was seised to have damages ; and therewith agrees the books . h. . . . h. . . b. mich. . jacobi , in the common pleas. sir daniel norton and symm's case . an action of debt was brought upon a bond , which was conditioned to performe covenants in an indenture ; and it was shewed there were divers covenants in the deed , some of which were covenants against the law , and some not ; and for breach , the plaintiff alledged , that it was covenanted by the indenture , that chamberlain , for whom the defendant was a surety , being under sheriff to the plaintiffe , should save the plaintiffe harmelesse , and should discharge all manner of escapes , and should also save him harmeless from all fines and amercements to which he should be liable by reason of any escape . and shewed , ●ow that one was arrested in execution by the said chamberlain , & evasit . and another covenant was , that hee should not serve any execution above twenty pounds , without warrant from the plaintiffe ; and also that he should not return any juries without his privity . hutton serjeant argued for the defendant and said , that this indenture of covenants was against the law , for it is as much as if he had said , that he should not he under sheriff . and by the statute of . el. under sheriffs are ●●orn to return juries ▪ and process of courts , and therefore these covenants are both against the common law and statute law ; also the covenants are in delay of justice ; for non constat when the sheriffe will give him warrant to return juries , or to execute the kings writs . also the covenant is too generall , viz. that he shall save him harmelesse from all escapes , and of any other matters whatsoever ; and there the bond taken to performe such covenants is void . vide . h. . and . ● . . . where a bond taken to save ●●man harmelesse against all men , is vo●id : but contrary if it be to save ●●rmelesse against one particular person : so here , to save harmeless from all matters whatsoever , is void ; but if it had been only from escapes , then it had been good . vide . h. . . if a man be bound to save another harmlesse against all the world , the bond is void , vide . h. . . will. rices case . and he compared these covenants against the law to perpetuities which kill themselves . then he argued , that although some of the covenants were lawfull , yet the bond was void in all ; and that , he said , is the better opinion of the book in . h. . . and if a. be bounden to enfeoff j. s. of the manor of d. and to disease j. n. of another manor , the bond is void for the whole . . he said , that there was not a sufficient breach laid by the plaintiffe ; for it is only layed , that such a one in execution evasit ; and it is not said , that the under sheriff did suffer him to escape . . it is not layed , that the plaintiff did request the under sheriffe to pay the money upon the escape , but he went and paid the money voluntarily of himself , and request and notice are needfull ; . e. . . . e. . . . e. . non damnificatus is a good plea generally ; and the other side ought to come and shew specially how he is damnified . . it is not layed , that he gave him warning to arrest the party in execution for fifty pounds ; and therefore as to that , he was not under sheriff , because as sheriff , without warning , by his former covenants , hee was not to serve any executions , but such as were under twenty pounds ; and therefore he ought to have layed it , that he gave him a warrant to arrest the party upon this execution , otherwise there is no breach . harris serjeant contrary , and he said , the covenants are sufficient in part , and ought to be performed ; and so the bond good . and as k●ble said in . h. . . so he said , that there are three conditions which are not allowable , but the case at bar is not within the compasse of any of them ; and the words here [ discharge and save harmelesse ] shall be meant from all escapes suffered by the under sheriff himself ; and the words [ from all amercements whatsoever ] shall be intended by reason of his office : and he said , that when an indenture of covenants is good in part , and void in part , those covenants which are good shall stand and ought to be performed ; and the book of . h. by four justices , is , that all legal and lawful covenants ought to be performed : and he vouched lee and golshills case . eliz. which vide c. . part . to that purpose ; and he said , that this case is not like the case in . eliz. dyer , of rai●ure : also , he said , that the defendant hath pleaded , that he hath performed all the covenants ; and if these covenants be void , and no covenants , then the defendants plea is not good . also there are divers covenants in the negative , and to those he ought in pleading to shew in certain that he hath not broken them . the court said , nothing at all to the case ; but yet cook chief justice seemed to be cleer or opinion ; that the bond was void ; and so he said , he conceived it had been adjudged before in this court in the same sir daniel nortons case against chamberlain , 〈◊〉 . . jacob● . 〈◊〉 . and it was adjourned . mich. . jacobi , in the common pleas. an action upon the case was brought by an attorney of the court against another man , for speaking these words of him , viz. thou art an ambodexter ; and the words were adjudged actionable , because the same slandred him in his profession , for it is as much in effect as if he had said , that he was corrupt in his office. mich. . jacobi , in the common pleas. it was ruled by the whole court , that a fieri facias , or capias ad satisfaciendum , or other judicial process did not run into wales ; but it was agreed that a capias utlagatum did run into wales : and brownloe , one of the pronothories , said , that an extent hath gon into wales . mich. . jacobi , in the common pleas. hughe's case : a man who dwelt in somersetshire made his will , and by his said will did bequeath to each of his children being enfants , a legacy of . pound a piece : the procurators of the enfants did libel in the court of arches against the executors of the testator , for the said legacies , being out of the diocess , and a prohibition was awarded : and in this case it was said by justice warburton , to have been agreed by all the justices , that the exception in the statute of . h. cap. . doth extend onely to probate of wills. it was also holden in this case , that an averrment might be , that the parties were sued out of there proper deocess , if the same doth not appeare in the libel : as it may be in like case where one sueth in the court of admiralty for a thing done upon the land ; and averrment may be , that the contract was made infra corpus comitatus . and in this case it was also agreed by the court , that if an infant bringeth an action against his gardian for mony , and recovereth , and he bringeth the mony into court , and there deposite it , that the same is a good discharge against the enfant , and he shall not answer the suit again in an account . mich. . jacobi , in the common pleas. sir thomas seymore's case . mountague serjeant shewed to the court , that the wife of sir thomas seymore did libel against her husband in the spiritual court , for that he did threaten her , and beat her ; and in the end of the libel she prayed allowance of allimony ; and a prohibition was prayed by him , because the suit in that court was for a force , which was not triable in that court ; and to that purpose he remembred the case of , h. . . where a clark sued in the spiritual court for a battery , and laying of violent hands upon him , and because in such case an action of trespas of assault and battery did lye at the common law , a prohibition was awarded , vide. . e. . . pl. . the abbot of st. albans case , and . h. . . cook chief justice agreed all those cases : and said , that if a clark sueth in the spiritual court for damages , a prohibition shall be awarded ; and no damages are given in the spiritual court , if not for repairing of the church , as appeareth by the statute of articuli cleri . quaere & vide. . e. . . professione fidei , &c. and linwood saith , that if a clark walketh in his doublet and hose , & non habet habitam clericalem , but goeth in colours ; if another man doth beat him , he shall not sue for the same in the spiritual court : but in the principal case it was agreed by the whole court , that no prohibition should be awarded , because the wife cannot have remedy against the husband at the common law for the beating of her , because she is sub virga viri ; and also because the suit there is , but by way of inducement , to have a divorce causâ metus . and warburton said , that she should recover there expensas litis against her husband . cook held , that the husband could not give correction to his wife : but nicols and warburton justices , held the contrary ; and that the wife may have a writ de securitate pacis against the husband , as appeareth by f. n. b. . f. quod benè & honestè tractabit & gubernabit , nec malum aliquod ei aliter quàm ad virum suum causa regiminis & castigationis vxoris suae , licitè & rationabiliter pertinet , non faciet &c. and f. n. b. . s . acc . cook vouched . e. . fitz. tit. attachment for prohibition . where the wife libelled against her husband in the spiritual court for beating and imprisoning of her , and no prohibition was granted , and the suit in the spiritual court was there as an inducement to have a divorce . mich . jacobi , in the common pleas. payne's case . it was moved by hutton serjeant , for a prohibition to the court of requests : the case was this , a man in consideration , that alice s. would obtain the good will of his master , that hee the defendant might have a shop in his masters house , did promise her , that when she was married , that he would give unto her ten pound ; and the plaintiff shewed , that she did get the good will of her master , and that the defendant had a shop in his masters house , and that she the said alice was afterwards married to the plaintiff payn. and the opinion of the whole court was , that a good action upon the case would lie upon such promise . and a prohibition was awarded unto the court of requests ; a suit being there brought for the same matter ; which matter being a thing meerly triable at law , and not in a court of equity , that court had no jurisdiction of it . mich. . jacobi , in the common pleas. mountague serjeant , demanded the opinion of the justices in a case upon the statute of . jacobi , of recusants , in the behalfe of the university of oxford . viz. that if a recusant convict do avoid , the said statute doth grant his patronage for years to one of his friends in trust ; whether the same were void , or not within the said statute ? the justices did deny to deliver any opinion in the case , for they said , perhaps it might be that that point and case might come judicially before them ; and such they said was the answer of hussey in . h. . in humfrey staffords case , which was , king henry the seventh came in bance , and demanded a queston of the justices . but yet the court tacitè seemed to agree , that such a lease of the patronage was void by the said statute of . jacobi . and they said , that they would not have the university discouraged in the case , which implyed their opinions to be for the universitie . and . h. . was vouched , that the patronage was only matter of favour , and was not a thing valuable ; and in this case cook chief justice said , that apertus haereticus melius est quam fictus catholicus . mich. . jacobi , in the common pleas. bond and green's case . an action of debt was brought against an administrator , the defendant shewed how that there were divers judgments had against him in 〈◊〉 a●d ●●so that there was another debt due by the testator , which was assigned over unto the kings majesty , and so pleaded , that he had fully administred . barker serjeant took exception to the pleading , because it was not therein shewed that the king did assent to the assignment ; and also because it was not shewed , that the assignment was enrolled . the court said nothing to the exceptions ; but whereas he defendant as administrator , did alledge a retayner in his own hands for a debt due to himselfe ; the opinion of the whole court was , that the same was good , and that an administrator might retayne to satisfie a debt due to himselfe . but it was agreed by the court , that an excecutor of his own wrong , should not retayne to satisfie his own debt ; see to this purpose , c. . part coulters case . mich. . jacobi , in the common pleas. strowbridg and archers case . in an action of debt upon a bond the defendant was outlawed . and the writ of exigent was , viz. ita quod habeas corpus ejus hîc &c. whereas it ought to be coram justiciariis nostris apud westminster : and for that defect the utlagary was reversed , and it was said , that it was as much as if no exigent had been awarded at all : and upon the reversall of the utlagary , a supersedeas was awarded ; and the party restored to his goods which were taken in execution upon the capias utlagatum . it was also resolved in this case , that if the sheriffe , upon a writ of execution served , doth deliver the mony or goods which are taken in execution to the plaintiffs atturney , it is as well as if he had delivered the same to the plaintiff himself ; for the receipt by his atturney is in law his own receipt . but if the sheriff taketh goods in execution , if he keep them , and do not deliver them to the pa●● at whose suit they are taken in execution , the party may have a new execution , ( as it was in the principal case ) because the other was not an execution with satisfaction . mich. . jacobi , in the common pleas. chavvner and bovves case . bowes sold three licences to sell wine unto chawner ; who covenanted to give him ten pounds for them ; and bowes covenanted that the other should enjoy the licences . it was moved in this case , whether the one might have an action of covenant against the other in such case : and the opinion of warburton and nichols justices , was , that if a man covenant to pay ten pound at a day certain , that an action of debt lyeth for the money , and not an action of covenant . barker serjeant , said , he might have the one or the other : but in the principall case the said justices delivered no opinion . note , that this day cooke chief justice of the common pleas , was removed to the kings bench , and made lord chief justice of england . and sir henry hobart , who was the kings aturney generall , was the day following made lord chief justice of the court of common pleas. sir francis bakon knight , who before was the kings solicitor , was made atturney generall . and mr henry yelverton of grays-inn was made the kings solicitor : and this was in october , term. mich. jacobi . . mich. . jacobi , in the common pleas. this case was put by mountague the kings serjeant , unto the lord chief justice hobart , when he took his place of lord chief justice in the common pleas ; viz. tenant in tail the remainder in taile , the remainder in fee ; tenant in tail is attainted of treason , offence is found : the king by his letters patents granteth the lands to a , who bargaineth and selleth the land by deed unto b. b. suffers a common recovery , in which the tenant in tail is vouched , and afterwards th● deed is enrolled . and the question was , whether it was a good bar of the remainder ? and the lord chief justice hobart was of opinion , that it was no barre of the remainder , because before enrollment nothing passed but only by way of conclusion . and the bargainee was no lawfull tenant to the precipe . mich. . jacobi , in the common pleas. wheeler's case . it was moved for a prohibition upon the statute of . e. . for working upon holy days ; and the case was , that a man was presented in the spirituall court for working , viz. carriage of hay , upon the feast day of saint john the baptist , when the minister preached and read divine service ; and it was holden by the whole court of common pleas , that the same was out of the statute by the words of the act it self , because it was for necessity ; and the book of h. . was vouched , that the church hath authority to appoint holy days , and therefore if such days be broken in not keeping of them holy , that the church may punish the breakers therof ; but yet the court said , that this day , viz. the feast day of sr john the baptist was a holy day by act of parliament , and therefore it doth belong unto the judges of the law , whether the same be broken by doing of such work upon that day , or not . and a prohibition was awarded . mich. jacobi , in the common pleas. rearsby and cuffer's case . it was moved for a prohibition to the court of requests , because that a man sued there by english bill for money which he had layd out for an enfant within age for his meat , drink & necessary apparel ; and set forth by his bill that the enfant being within age , did promise him to pay the same . and a prohibition was awarded , because as it was said , he might have an action of debt at the common law , upon the contract for the same , because they were things for his necessary livelihood and maintenance . and it was agreed by the court , that if an infant be bounden in an obligation for things necessary within age , the same is not good , but voidable . quaere , for a difference is commonly taken , when the assumpsit is made within age , and when he comes to full age . for if he make a promise when he cometh of full age , or enters into an obligation for necessaries which he had when he was within age , the law is now taken to be , that the same shall binde him . but see . eliz. randals case , adjudged , that an obligation with a penaltie for money borrowed within age , is absolutely void . mich. . jacobi , in the common pleas. smith's case . smith , one of the officers of the court of admiralty , was committed by the court of common pleas to the prison of the fleet , because he had made return of a writ , contrary to what he had said in the same court the day before : and . h. . was vouched by warburton justice , that if the sheriff do return that one is languidus in prisona , whereas in truth he is not languidus , the sheriff shall be sued for his false return : which was agreed by the whole court. quod nota . mich. . jacobi , in the common pleas. warburton justice asked the pronothories this question , if in trespass the plaintiff might discontinue his action within the yeer ? to which the pronothories answered , that if it be before any plea be pleaded , that he might : but the justices were of a contrary opinion , that he could not ▪ because then costs which are given by the statute should be lost . mich. . jacobi , in the common pleas. laiston's case . in trespass for a w●y , the defendant pleaded a plea in bar which was insufficient ; and afterwards the plaintiff was non-suit ; yet it was resolved by the court , that the defendant should have his costs against the plaintiff . but if a default be in the originall writ ; and afterwards the plaintiff is non-suit there , the defendant shall not have costs ; because that when the original is abated , it is as if no suit had been . and so was the opinion of the whole court. mich. . iacobi , in the common pleas. hill and grubham's case . the case was this a lease was made unto grubham by a deed paroll , habendum to him , his wife , and his daughter successivè , sicut scribuntur et nominantur in ordine : afterwards grubham dyed and then his wife dyed ; and if it were a good estate in remainder to his daughter , was the question . harris serjeant , the remainder is void , and not good by way of remainder for the incertainty . c. . part in corbets case . in all contracts and bargains there ought to bee certainty . and therefore . h. . is , that if a feoffment be made to two et haeredibus , it is void although it be with warranty to them and their heirs . vide . h. ▪ . where renun●iavit totam communiam doth not amount unto a release , because it is not shewed to whom the release is : and so in . eliz. in the kings bench , in windsmere & hulbards case . where an indenture was to one , habendum to him and to his wife , and to a third person successive , it was holden that it was void by way of remainder to any of them . and there it was resolved , . that they did not take presently . . that they could not take by way of remainder : and . that they could not take as occupants , because that the intent of the lessor was , that they should take but as one estate . but the court was of opinion against harris ; and resolved , that the daughter had a good estate in remainder , and that the same did not differ from the case in dyer , where a lease was made by indenture to one , habendum to him & to another successivè , sicut nominantur in charta , for that those words sicut nominantur in charta , maketh the estate to be certain enough . and so they said in this case , sicut scribuntur et nominantur in ordine , is certain enough , and shall be taken to be sicut scribuntur et nominantur in eadem charta . but they agreed according to the case in brooks cases , that a lease to three , habendum 〈…〉 . mich. . jacobi , in the common-pleas . . traherns case . an assize of nusans was brought against the defendant , because that levavit quandam domum ad nocumentum , &c. and the plaintiff shewed how that he had a windmil , and that the defendant had built the said house , so as it hindred his mill : and the jury found that the defendant levavit domum ; and that but two feet of it did hinder the plaintiffs mill , and is ad nocumentum . and how judgment should be given , was the question . and the court was of opinion , that judgment should be , that but part of the house should be abated , viz. that which was found to be ad nocumentum . and it was said by some , that the assise is such a writ which extends to the whole house ; and therefore that the whole house should be abated according to the writ . but a difference was taken betwixt the words erexit and levavit : for , erexit is but when parcel of a house is set up ad nocumentum ; but levavit is when an entire house is levied from the ground . and it was said by hobart chief justice , that if the defendant had not levied the house so high by two yards , it had been no nusans : for the jury find , that the two yards only are ad nocumentum . and therefore he conceived that the writ was answered well enough ; and that but part of the house should be abated : for the writ is , quod levavit quandam domum , &c. and the verdict is , quod levavit domum ; but that but two yards of it is ad nocumentum : and therefore he said , the writ is answered well enough ; and that the judgment should be given , that that only should be abated which was ad nocumentum , &c. quaere ; for the case was not resolved ; and vid. batten & sympsons case , c. par . . to this purpose . mich. . jacobi , in the common-pleas . . bagnall and pots case . it was resolved by the court in this case , that when an issue is joyned upon non concessit , that the issue shall be tryed where the land is : but if a lease be in question , and non concessit be pleaded to it , it shall be tryed where the lease was made . . it was resolved , that if copy-hold land be given to superstitious uses , and the same cometh unto the king by the statute ; that the copyhold is destroyed , and the uses shall be accompted void : but it was resolved , that in such case by the statute which giveth this land so given to superstitious uses to the king , that the king hath not thereby gained the freehold of the copyhold , but that the same remaineth in the lord of the mannor . mich. . jacobi , in the common-pleas . . jucks & sir charls cavendish's case . a parson sued for the substraction of predial tythes , upon the statute of ▪ e. . in the spiritual court. the defendant made his suggestion , that for such a farm upon which the tythes did arise , there was this custom ; that when the tythes of the lands were set forth , that the owners of the said lands had used time out of mind to take back thirty sheafs of the tythe-corn : and shewed that he was the owner of the said farm ; and that according to the said custom , after the tythes were set forth , that he did take back thirty sheafs thereof , and thereupon prayed a prohibition . and in this case it was said by the court , that it ought to be averred , that the farm was a great farm , for otherwise it should be the impoverishing of the church , and would take away a great part of the profit of the parson . and it was further said by the court , that if there were but thirty tythe-sheafs in all , that the owner should not have them , for then the custom should be unreasonable : and day was given to the other side , to shew cause why the prohibition should not be awarded . mich. . jacobi , in the common-pleas . . ganden and symmon's case . note , that where a juror is not challenged by one party , who had sufficient cause of challenge ; and afterwards is challenged by the other side , and afterwards the party doth release his challenge ; in that case , the first party cannot challenge the same juror again , because he did foreslow his time of challenge , and he had admitted the party for to be indifferent at the first . mich. . jacobi , in the common-pleas . . the bishop of chichester and strodwick's case . in an action of trespass for taking away of timber , and the boughs of trees felled : the defendant , as to the timber , pleaded not guilty ; and as to the boughs , he made a special justification , that there is a custom within the mannor of ashenhurst in the county of sussex , that when the lord fels or sels timber-trees , that the lord is to have only the timber , and that the poor tenants in coscagio parte manerii , time out of mind have used to have the branches of the trees for necessary estovers to be burnt in necessario focali in terris & tenementis . and the opinion of the court was , that the custom was not well expressed , to have estovers to burn in terris & tenementis ; for that estovers cannot be appertaining to lands , but to houses only : and therefore whereas the defendant in the case did entitle himself to a house and lands , and gave in evidence that the custom did extend to lands , it was holden that the evidence did not maintain the issue ; and the custom was alleadged to be , that the lord should have quicquid valeret ad maremium , and that the freeholders should have ramillos . which as hobart chief justice said , is to be meant all the arms and boughs ; for whatsoever is not maremium , is ramillum . . it was holden in this case , that the non-use or negligence in not taking of the boughs , did not extinguish nor take away the custom , as it hath been oftentimes resolved in the like case . and note that in this case , to confirm the said custom , the book-case was cited , which is in . e. . fitz. t' bar. . and the same was given in and avowed for good evidence : where the case was , that the bishop of c. ( which shall be intended the bishop of chichester ) brought an action of trespass for felling of trees , and carrying them away : where the defendant pleaded , that he held a messuage and a verge of land of the bishop ; and that all the tenants of the bishop within the manor of a. ought to have all the windfals of trees , and all the boughs and branches , &c. which case , as harris serjeant conceived , was the case of the very mannor now in question ; and the tenant there ( as in this case ) made a special justification , and there it was holden that it was good , and adjudged for the defendant : also in that case it was adjudged , that the lord should have maremium , and that the tenants should have residuum , which shall be intended the boughs and branches . and the custom in the case was adjudged good . but because the defendant alleadged the custom to be , to have the same as estovers to be burned in terris , and gave evidence only to the messuage , it was found against the defendant , for that the evidence did not maintain the issue . mich. . jacobi , in the common-pleas . . vaughan's case . in a formedon in the discender , the tenant had been essoined upon the summons , and also upon the view . and after was pleaded ne dona pas , the general issue ; and thereupon issue was joyned : and if he might be essoined again after issue joyned , was the question : and the court was of opinion , that in a real action the tenant may be essioned after issue joyned , but not in a personal action , by the statute of marlebridge . and hobart chief justice said that the statute of marlebridge gave not any essoin , but only did restrain essoins : and therefore in real actions the same is left as it was at the common law ; and by the common law the tenant might be essoined after issue joyned . and note , per totam curiam , that if an essoin be not taken the first day , it shall never after be taken . mich. . iacobi , in the common-pleas . . clay and barnets case . in an ejectione firme , the case was this ▪ sir godfrey foliamb had issue james his son , who had issue francis : and sir godfrey foliamb was seized in fee of divers lands as well by purchase as by discent , in sundry towns , viz. chesterfield , brampton , &c. in the tenures of a. b. c. &c. and dyed , james foliamb his son , ▪ e. . made a conveyance of divers lands to francis foliamb being his younger son , in haec verba , viz. omnia mea mesuagia , terras , & tentam in chesterfield , brampton , &c. modo in tenuri of the said a. b. c. quae pater meus galfrid : foliamb perquesivit from divers men , whom he named in certain : and also convey a house called the hart to the same francis , which came to him by discent , by the same conveyance which was in the occupation of one celie , and not in the tenures of the said a. b. c. and the great question upon the whole conveyance was , whether all the lands which he had by discent in the said towns , and in the occupations and tenures of the said a. b. & c. did pass , or only the purchased lands . and it was resolved by the whole court , that the conveyance did pass only the lands which he had by purchase , except only the said house which was precisely named and conveyed ; and did not pass the lands which he had by discent . for if all the lands which he had by discent should pass by the general words , then the special words which passed the house which he had by discent should be idle and frivolous ; and that was one reason ex visceribus causae , that only the purchased lands did pass . . it was said by justice warburton , that if a man giveth all his lands in d. in the tenures of a. & b. and he hath lands in d. but not in their tenures , that in that case all his lands in d. passeth : so if a man give all his lands in d. which he had by discent , from his son , there all his lands whatsoever shall pass . hobart acc ' and said , that if a man gives all his lands in the county of kent , if he have lands within the county , they do pass . and he said , that in a conveyance every restriction hath his proper operation ; and in the conveyance in the principal case there were three restrictions : . all his ●ands in such towns , viz. chesterfield , brampton , &c. . all his lands in the tenures of such men , viz. a. b. c. . all his lands which he had by purchase , &c. and the words ( all my lands ) are to be intended all those my lands which are within the restrictions . and he said , that the word ( et ) being in the copulative , was not material ; for all was but one sentence , and it did not make several sentences and the word et is but the conclusion of the sentence . . they resolved , that general words in a grant may be overthrown by words restrictive ; as is ▪ e. . and plow . com. hill. & granges case . and therefore if a man giveth all his lands in d. which he hath by discent from his father ; if he have no lands by discent from his father , nothing passeth . . they agreed , that a restriction may be in a special grant , as in c. . par . ognels case : but they said , that if the restriction doth not concur and meet with the grant , that then the restriction is void . note , the principal case was adjudged according to these resolutions . mich. . iacobi , in the common-pleas . . cooper and andrews case . to have a prohibition to the spiritual court , suggestion was made , that the lord de la ware was seised of acres of lands in the county of sussex , which were parcel of a park . and a modus decimandi by prescription was said to be , that the tenants of the said acres for the time being had used to pay for the tythes of the said acres two shillings in mony , and a shoulder of every third deer which was killed in the same park , in consideration of all tythes of the said park : and it was shewed , how that the lord de la ware had enfeoffed one cumber of the said acres of land ; who bargained and sold the said acres of land to the plaintiffe who prayed the prohibition . the defendant said , that the said park is disparked , and that the same is now converted into arable lands and pasture-grounds , and so demanded tythes in kind ; upon which the plaintiffe in the prohibition did demur . hutton serjeant . by the disparking of the park , the prescription is not gone nor extinct ; because the prescription is said to be to acres of lands , and not to the park : and although the shoulder of the deer , being but casual and at the pleasure of the party , be gone , yet the same shall not make void the prescription . . he said , that the act of the party shall not destroy the prescription : and although it be not a park now in form and reputation , yet in law the same still remains a park . and he compared the case unto lutterels case , c. . par . . where a prescription was to fulling-mils , and afterwards the mils were converted to corn-mils , yet the prescription remained . . he said , admit it is not now a park , yet there is a possibility that it may be a park again , and that deer may be killed there again . for the disparking in the principal case is only alleadged to be , that the pale is thrown down ; which may be amended : for although that all the park-pale , or parcel of it be cast down , yet the same doth still remain in law a park : and a park is but a liberty ; and the not using of a liberty doth not determine it , nor any prescription which goes with it . and if a man have estovers in a wood by prescription , if the lord felleth down all the wood , yet the right of estovers doth remain ; and the owner shall have an assise for the estovers , or an action upon the case . vid. c. . par . . in grayes case , the case vouched by popham . further he said , that in the beginning a modus decimandi did commence by temporal act , and spiritual ; and the mony is now the tythe , for which the parson may sue in the spiritual court : and a case mich. . jacobi was vouched , where a prescription to pay a buck or a doe in consideration of all tythes , was adjudged to be a good prescription . and the case mich. . jacobi , of skipton-park , was remembred : where the difference was taken , when the prescription runs to land , and when to a park . in the one case , although the park be disparked , the prescription doth remain ; in the other not . and ▪ e. . dyer . was vouched : that although the park be disparked , yet the fee doth remain . and so in the case at bar , although the casual profit be gone , yet the certain profit , which is the two shillings , doth remain . harris serjeant contrary . and he said , that the conveyance was executory , and the agreement executory , and not like unto a conveyance or agreement executed : and said , that tythes are due jure divino ; and that the party should not take advantage of his own wrong , but that now the parson should have the tythes in kind . and upon the difference of executory and executed , he vouched many authorities , viz. ▪ eliz. dyer . calthrops case , e. . . e. . . & e. . anuitie . and in this case he said , that the parson hath no remedy for the shoulder of the deer ; and therefore he prayed a consultation . hobart chief justice said , that the pleading was too short , and it was not sufficiently pleaded : for it is not pleaded , that the park is so disparked that all the benefit thereof is lost . but he agreed it , that if a man doth pull down his park-pale , that the same is a disparking without any seisure of the liberty into the kings hands , by a quo warranto . but yet all the court agreed , that it doth yet remain a park in habit : and they were all also of opinion that the disparking the park of the deer , was not any disparking of the park as to take away the prescription . the case was adjourned till another day . mich. . iacobi , in the common-pleas . . piggot and piggot's case . in a writ of right , the donee in tail did joyn the mise upon the meer right ; and final judgment was given against the donee , in which case the gift in tail was given in evidence . afterwards the donee in tail brought a formedon in the discender : and it was adjudged by the whole court , that the writ would not lie : for when final judgment is given against the donee in tail upon issue joyned upon the meer right , it is as strong against him as a fine with proclamations : and the court did agree , that after a year and day , where final judgment is given , the party is barred ; and also that such final judgment should bar the issue in tail . mich. iacobi , in the exchequer-chamber . ▪ an action upon the case was brought for speaking these words : thou doest lead a life in manner of a rogue : i doubt not but to see thee hanged for striking mr. sydenhams man who was murdered . and it was resolved by all the justices in the exchequer-chamber , that the words were not actionable . at the same day in the same court , a judgment was reversed in the exchequer-chamber , because the words were not actionable : the words were these , viz. thou usest me now , as thy wife did when she stole my goods . mich. . iacobi , in the common-pleas . . roes and glove 's case . an action of debt was brought upon a bond in mich. term jac and in hillary term after the parties were at issue upon the statute of usurie , and it was found against the defendant . afterwards ter. trin. a writ of error was brought retornable mich. . jacobi . in which term no errors were assigned . and afterwards in hillary term following two errors were assigned : the one , that there was no such statute as the statute of h. . of usurie , which was against what he had before confessed by his plea ; the second error was , that whereas j. s. of exeter was retorned of the jury , it was assigned for error , that j. s. of another place was sworn upon the inquest : and in this case the court advised the defendant in the writ of error to plead in nullo erratum est . by which the court did seem to incline , that they were no errors . mich. . iacobi , in the common-pleas . . bradley and jones case . in an action upon the case , the case was , that the defendant did exhibite articles against the plaintiff in the chancery before dr. cary , and there swore the articles ; and afterwards he sued in the kings bench , and had process out of that court upon the articles sworn in chancery : and for this an action upon the case was brought , and it was adjudged that the action would lie . the articles exhibited in the chancery were , that the plaintiff being an attorney at law , was a mainteinor of juries and causes , and a barretor : and the defendant prayed the peace against him in the kings bench. and in this case it was resolved , . that a man might pray the peace or good behaviour of any other man in any of the kings courts : but then it must be done in due form of law : and if he do it so , no action upon the case will lie , as it was resolved eliz. in cutler and dixons case in the kings bench. but it was agreed , that if a man sueth in a court which hath not jurisdiction of the cause , an action upon the cause will lie , but not where the court hath jurisdiction of the cause . . it was resolved , that the action did lie in the case at bar , because he did exhibite the articles in chancery , and did not pursue them there ; for when he had sworn the articles in the chancery , he could not have a supplicavit out of the kings bench ; and the oath and affidavit in the chancery doth remain as a scandal upon record . and hobart chief justice said , that every court ought to intermeddle with their own proper causes ; and that two courts are not to joyn in one punishment , for punishment is not to be by parcels . and he said , that if a man claimeth right to the land of another , he is not punishable for it ; but if he make title vnto a stranger , then he shall be punished : for every one ought to meddle with his own business . . it was resolved , that when a thing doth concern the commonwealth , the same doth concern every one in particular . and so it is lawful for any man to require the good behaviour of another , for the publique good : interest etenim reipublicae ut maleficia punientur . . it was resolved , that the action did lie ; because the defendant made the articles in chancery but a colour of the good behaviour ▪ and although that the kings bench might grant the good behaviour without any articles preferred , yet when first they begin in another court , they ought to follow the cause there : and hobart the chief justice , in this case said , that an attorney may not labour jurors in the behalf of his client , for that is imbracery . mich. . iacobi , in the common-pleas . . fial and varier's case . in an action upon the case , upon an assumpsit , the case was this . a man did promise to stand to the arbitrement of j. s. & j. d. if they made their arbitrement and award within ten dayes : and if they do not make their award within ten dayes , that if they nominate an umpier , and he make an award within the said ten dayes , that then , &c. j. s. & j. d. did not make any award within ten dayes : but the fourth day after the submission they did nominate j. n. to be umpier , who made an award within the said ten dayes ; and the defendant would not perform the award , wherefore the plaintiffe brought the action . sherley serjeant . it is repugnant : for the first arbitrators had the whole ten dayes to make their award , and then cannot the umpier make an award within the said ten dayes . but the opinion of the whole court was , that the action would lie ; and that it should be construed thus , viz. that if an arbitrement and award be made within ten dayes by the first arbitrators or by the umpier : for the first arbitrators may examine the matter for two or three dayes ; and if they cannot make any award , then the umpier shall have the rest of the ten dayes to make the award : and so it was adjudged . mich. . iacobi , in the common-pleas . . colt and gilbert's case . an action upon the case brought for these words , he is a thief , and stole a tree : adjudged that the action would lie ; for the later words do not extenuate the former : but , thou art a thief , for thou hast robbed my orchard , are not actionable , v. c. par . bretridges case . mich. . iacobi , in the common-pleas . . brook's case . an action upon the case was brought for words . the plaintiffe set forth in his declaration , that he was a mercer by his trade , and did sell wares and commodities in his shop , and did keep divers books of his trade , and debt-books : and that the defendant said unto mr. palmer , being the plaintiffs father-in-law , these words of the plaintiffe , viz. your son-in-law brooks deceived me in a reckoning , and he keepeth in his shop a false debt-book , and i will shame him in his calling . nichols justice , and hobart chief justice were of opinion , that the action would not lie for those words : . because the words single of themselves are not any ●lander ; and when words will bear an action , it ought to be out of the force and strength of the words themselves . . the first words , thou hast deceived me in a reckoning will bear no action , because it is impossible but that tradesmen and merchants which keep debt-books will sometimes mistake one figure for another , and so the same doth turn to the prejudice and damage of another against the will of the party himself . and so the subsequent words , he keepeth a false debt-book , are not actionable , because it may be falsified by the servants of the party , and not by the defendant himself ; and also it may be false written . et interest reipublicae ut sit finis litium : and it should be a cause of many suits , if such a nice construction should be made of words as to make them actionable ; and words shall be taken in mitiori sensu , if there be no particular description and declaration that the words were spoken maliciously . and therefore general words which of themselves are actionable , by construction shall be taken to bear no action ; as c. . par . stanhops case . and so if a man saith of another , that he hath the pox , they shall be taken in mitiori sensu , because they are not described by any subsequent words which declares malice in the party . and nichols vouched a case which was in this court this term , where an action was brought for these words ; thou usest me now , as thy wife did when she stole my cushions : that the words were not actionable . warburton justice . when words are spoken which scandal a man in his trade or profession , they are actionable : as if one say of an attorney , thou cosenest mr. winsor of his fees : and so if words are spoken maliciously . and therefore an action was brought by one who was a jury-man , for these words , viz. thou hast deceived me any my children of eight hundred pounds ; they were adjudged actionable . and so hill. . jacobi . rot . . thou art a jury-man , and hast been the death of a hundred men by thy false means : being maliciously spoken , ( although in themselves they are not actionable ) yet they will bear an action . but it was adjudged in the principal case , for the reasons given by the two other justices , that the words would bear no action ; to which warburton justice in the end did seem to agree . hill. . iacobi , in the common-pleas . . ayliffe and browns case . a woman who was possessed of a term for divers years , had issue two daughters ; the one married to ayliffe , and the other to brown. ayliffe had issue four daughters , and brown had also issue ; and the woman did demise legacies to the children of ayliffe out of the rent reserved upon the lease , and made brown her executor , and dyed . ayliffe required brown in the behalf of his children to pay the money to him , that he might imploy the same for the benefit of the children : which he refused to do , and thereupon he sued him in the spiritual court , and there sentence was given for the plaintiffe . brown the executor moved for a prohibition , and alleadged for ground of it , that he was executor , and chargeable in an accompt for the money . but because he came after sentence , and also after he had appealed to the court of delegates , and after a sentence given there also against him , the court refused to grant a prohibition in the cause ; and also because he did refuse to give security for the payment of the legacies to the children . hill. . iacobi , in the common-pleas . . wormleighton and hunters case . two men are bounden with j. s. as sureties in an obligation . one of the sureties , viz. wormleighton , was sued upon the bond , and the whole penalty recovered against him . he exhibited an english bill into the court of requests against the defendant , being the other surety , to have contribution : and it was moved to the court for a prohibition to the court of request , and the same was granted , because by entring into the obligation it became the debt of each of them jointly and severally , and the obligee had his election to sue which of them he pleased and take forth execution against him : and the court said , that if one surety should have contribution against the other , it would be a great cause of suits , and therefore the prohibition was awarded ; and so it was said it was lately adjudged and granted in the like case , in sir william wh●rwoods case . hill. . iacobi , in the common-pleas . . lamberts case . two men were partners in goods : the one of the partners sold unto j. s. at several times goods to the value of l. and for the goods at one time bought he paid the money according to the time ▪ afterwards an action was brought by one of the partners for the rest of the money , and the plaintiff declared upon one contract for the whole goods whereas in truth they were sold upon several contracts made , and the defendant in that case would have waged his law : but the court advised the plaintiff to be non-suit , and to bring a new action , because that action was not well brought , for it ought to have been a several action upon the several contract . and in this case it was agreed by the court , that the sale of one partner is the sale of them both ; and therefore although that one of them selleth the goods , or merchandizeth with them , yet the action must be brought in both their names ; and in such case the defendant shall not be received to wage his law , that the other partner did not sell the goods unto him , as is supposed in the declaration . hill. . jacobi , in the common-pleas . . white and moors case . a man did recover in an action of debt brought in the common-pleas , and had judgment ; and afterwards before execution was taken forth , the defendant in the debt exhibited an english bill into the court of requests to overthrow the judgment and to stay execution , pretending in his bill that there was a parol agreement betwixt him and the other , that he should not be charged with that judgment nor the payment of the money . it was moved for a prohibition in this case , which was granted by the court , because the plaintiffe there by practice did endeavour to subvert a judgment given at the common-law . and in speaking of this case , the court did very much condemn the course used in the court of requests in taking bonds of the parties to perform their decrees made there ; for it was said that such bonds were against law , and so it had been oftentimes adjudged . hill. jacobi , in the common-pleas . . baldwyn and girries case . a parson did libel in the spiritual court for tythes ▪ and the substraction of them ; and grounded his libel upon the statute of e. . the defendant alleaged that he was to be discharged from the payment of tythes , by reason of priviledge within the statute of h. . of dissolutions : and the plaintiffe here had a prohibition . and afterwards they were at issue here , whether he ought to be discharged hy priviledge or not ; and after issue joyned , the plaintiffe in the prohibition was non-suit : and thereupon the parson had a consultation , and proceeded ▪ in the spiritual court , and there obtained a sentence ; and the sentence there was , that he should recover the single damages , and the same was set in certain ; and ulterius that recuperet duplicem valorem , which was also by the said sentence set in certain . and it was resolved in that case by the whole court , that a prohibition should be granted grounded upon the sentence ▪ because the spiritual court in their sentence did exceed the damages which was to be given by the statute in that court : and it was said ▪ that although the sentence there given be not expressly that he recover treble damages , yet because it did amount to so much , if the words of the sentence be joyned together , it was directed that a special prohibition , in which the statute and the whole matter is to be mentioned , be awarded . and in this case it was agreed by the whole court , that the statute of ● . . for substraction of tythes meerly , doth not give any damages : but if the tythe be first set forth , and then they are substracted , there because the parson had once an interest in them , he shall recover treble damages . and the principal case was resembled by warburton justice to the case of waste ; that if the jury give damages l l ▪ there the court shall treble the damages and make the same l ▪ and so it was done in the principal case . hill iacobi , in the common-pleas . . gippe's case . a man libelled for tythes in the spiritual court : the defendant alleadged a modus decimandi , and thereupon had a prohibition ; and afterwards the plaintiffe in the prohibition did not prove his suggestion within six months : and therefore the court granted a consultation , because the law hath appointed a certain time within which time the suggestion is to be proved , otherwise the parson should be delayed and prejudiced in his tythes ; and so it was adjudged in parson bugs case , mich. . jacobi , in this court. hill. jacobi , in the kings bench. . crosse and stanhop's case . an action of false imprisonment was brought against the defendant and two other justices of peace of the county of york . the defendants justified the imprisonment , by reason of the statute of m. cap. that it should not be lawful for any maliciously and contumeliously to molest or disquiet any person or persons which are preachers , or after should be preachers . and the plaintiffe demurred upon the plea in bar generally ; and two exceptions were taken to the pleading : . because the words of the statute were misrecited ; for the words of the statute are in the disjunctive , maliciously or contumeliously : and the opinion of the court was , that when the precedent & subsequent words disjunctive are all of one sense , that the word ( or ) is all one with the copulative ; but where they are of divers natures ( as by word or deed ) it is otherwise . the second exception was , that where the words were ( by the greater part of the justices ) the recital was ( by the better part of the justices . ) but notwithstanding these exceptions , it was adjudged against the plaintiffe . pasch . iacobi , in the kings bench. . cartwright's case . cartwright prayed a prohibition ; and the case was this . a. lying sick upon his bed , made his will ; and afterwards said unto his executors named in the will , i will , that b ▪ shall have twenty pounds more , if you can spare it . and the executor answered and said , yes forsooth : but no codicil was made of the same legacie . and a bill was preferred in the spiritual court for the legacie : whereupon the executor prayed a prohibition . and it was holden by this court , that although this court hath not power to hold plea of the thing libelled for there in the spiritual court , yet it hath power to limit the jurisdictions of other courts ; and if they abuse their authority , to grant a prohibition . vid. h. . . but it was doubted whether the spiritual court , as this case is , might give remedy to the person for the legacie : for the same not being annexed to the will by a codicil , it was but fidei commissum : and so the doubt was , whether the spiritual court might hold plea of it : for if they cannot hold plea of it , then in this case a prohibition may be lawfully granted , although that this court have not power nor jurisdiction of the thing it self . the court would be advised of it , and therefore it was adjourned . pasch . iacobi , in the kings bench. . sir christopher heydon's case . godsall , shepard & smith brought an assise of novel disseisin against sir christopher heydon , which was tryed at the assises in norfolk before sir tho. fleming lord chief justice of england , and justice dodderidge , which was found for the plaintiffs , and judgment was given for them in the court of common-pleas . and thereupon sir christopher heydon brought a writ of error in the kings bench ; and assigned for error , that whereas the judgment was given upon his own confession , the judgment was entred , that the plaintiffs did recover per visum recognitorum assise predict . and after argument in the kings-bench , it was adjudged by the whole court , that the judgment given in the common-pleas should be affirmed , notwithstanding the error assigned . and now to reverse the judgment given in the kings bench , he brought another writ of error in parliament . cook chief justice said , that the clarks of the chancery ought not to make a writ of error to the parliament , unlesse they have the kings licence so to do . and it was agreed by the whole court , that a writ of error lieth in parliament upon the transcript of the record , without bringing of the record it self in parliament : for the parliament is holden at the kings pleasure , and may be dissolved before the errors be discussed ; and so the record it self cannot be brought here again , because the parliament which is a higher court was once possessed of it . h. . error . the same law in error upon a judgment given in ireland , e. . error . where only the transcript of the judgment is removed : for if the record it self should be brought into england , it might be that before it came hither it shall be drowned in the sea ; and it is dangerous to commit a record to the mercy of the winds and sea . and error lieth to reverse a fine upon the tenor of the record : and it is not necessary to bring the fine it self , because there is not any chirographer in this court to examine it . at another day the same term , george crook and noy took five exceptions to the said writ of error : the first was , because the writ doth recite the judgment to be in assis . capt . coram tho. fleming capital . justiciar . ad placita , & johannem dodderidge milit . unum justic . ad placit . coram nobis tent . and the exception was , because that this latter addition was not to them both . dodderidge justice held , that the same was no good exception to abate the writ of error , because the omission is only in the addition of honour which is surplusage , and the person is certain , and his power appears to take the assise : and that exception is not in point of jurisdiction , but of denoting of the person ; and therefore is like the case in eliz. dyer , . which is a stronger case , and e. . dyer . haughton and cook contr . but crook justice did agree with dodderidge , that the addition of the same was but surplusage , and that the writ had been well enough without it . cook chief justice held the contrary : for then he varieth from their commission , which is their authority ; but if it had been left out in their commission , then the writ had been good enough . and he said , that when a man meddles with a thing which is but surplusage , which he needed not to do , he must recite the same substantially , otherwise his plea will be vitious . c. par . palmers case . and when he maketh tho. fleming capit. justic . ad placita indefinitely , he varieth from the truth : for the stile is , tho. fleming capit. justic . ad placita coram rege tent . haughton justice acc ' and he said , that in every writ of error which is to remove a record three things ought to be expressed . . mention is to be made before what person it was taken , as the book is in h. . . . it is to mention betwixt whom it was , h. . . . the manner of the caption is to be mentioned , whether by writ or without writ , r. . & . and this writ faileth in the first of them , therefore he concluded that the vvrit should abate . cook chief justice was of the same opinion , and agreed that misnosmer and variance are not to be favoured , if they be not substantial and essential , quae dant esse rebus : and he said that the variance in this case is of such nature ; for in many records yet extant , and in the time of king h. . it is to be found , that the chief justice of england did sit and give judgment in the common-pleas and in the exchequer ; and so then capital . justic . ad placita is too general , because he might sit and give judgment in any of the said courts . the second exception was , because that the vvrit saith , assisa capta , &c. and doth not say per breve , nor sine breve , nor doth say secundum legem & consuetudinem , &c. for in eliz. in the case betwixt cromwell and andrews , it was adjudged not good to say , that such an action came into the common-pleas out of the country , and doth not shew that it came by adjournment , or by certlorari , or mittimus . to which it was answered by damport councellor for the plaintiff , that it is a strong intendment that the assise was taken per breve , and therefore it needed not to be expressed , because it is a general , and not a special assise . crook justice . the exception is good ; for it is so general , that it cannot be intended which assise it was : for put case there were two assises betwixt the same parties , it cannot be known which assise is intended . and of the same opinion was haughton justice . dodderidge contrary ; and he said , notwithstanding the exception the record ought to be removed by the writ : for the judges conscience may be well satisfied which record is to be removed ; and here the record which is to be removed is so precisely shewed , that no body can doubt of it which ought to be certified : and there are records removed by writs of error which are more dubious then this is , v. eliz. dyer . e. . but in this case the writ is much enforced by the words sommon . & capt. for in every assise there are four commands to the sheriffe . . facere tenementum esse in pace , to quiet the possession . . facere recognitionem , or recognit . videre tentam . . summoneas . . ponas eos per vadios , &c. for which cause of necessity it must be meant an assise per breve . the third exception was , because in the writ it was not shewed who was plaintiffe , and who defendant . dodderidge . it is generally to be agreed , that the writ of error ought to agree with the record : which rule is taken in h. . . c. . par . the marquess of wincbesters case . but yet every variance doth not abate this vvrit : for if the variance be only in matter of circumstance ▪ as it is in this case , the vvrit shall not abate . vid. h. . . & phil. & ma. dyer . eliz. dyer . & . h. . . & . the fourth exception was , because it doth not shew the place of the caption of this assise , but sayes generall in com. norfolk . haughton held that rather to be examinable in the parliament then here . the last exception was , because the vvrit is directed to cook chief justice , that he certifie the record sub sigillo suo : whereas it was said the record it self was to come in parliament , and there a transcript thereof is to be made , and the record to be remanded . v. e. . eliz. dyer . h. . . against the book of entries . to which it was answered , that it is at the pleasure of the parliament to have either the one or the other , e. . . h. . error . to which cook agreed . and note , that upon this vvrit of error a supersedeas was fraudulently procured , and a vvrit of attachment issued forth against bacon who procured it ; and the supersedeas was disallowed , because that another supersedeas was granted in the first vvrit of error , and a man can have but one supersedeas . but the question in this case was , admitting that the vvrit of error be good and not abateable , if the same be a supersedeas in it self ? and the court doubted of that point : for cook chief justice said , that he had viewed or vvrits of error which were brought in parliament , where the first judgment was disaffirmed , and but one where the judgment was affirmed ; and that is in eliz. dyer . the record of which cannot be found : et quod in praxi est inusitatum , in jure est suspectum . the books where error was brought in parliament are e. . & in the old print . e. . . ass . pl. . h. . . h. . . eliz. dyer . and it should be mischievous for delay , for a parliament is only to be summoned at the kings pleasure . haughton , dodderidge and crook held cleerly , that this vvrit of error was a supersedeas in it self , and that upon the book of e. . error . & h. . . where it is said , that the justices did proceed to execution after the judgment affirmed in parliament , and therefore ex consequente sequitur not before : and therefore the vvrit of error is a supersedeas that they cannot proceed . but there is no president of it in the register , but a scire facias , fo . . and the court held , that if a supersedeas be once granted and determined in default of the party himself , that he shall never have another supersedeas : but otherwise if it fail by not coming of the justices . also cook chief justice held , that by this vvrit of error in parliament sir christopher heydon could not have the effect of his suit , because it is to reverse a judgment coram rege , and so the judgment given in the common-pleas stands firm , and sir christopher heydon is put to a new vvrit of error in this court : for the judgment in the kings bench is , judicium affirmetur , & stet in pleno robore & effectu : and it is not as the judgment is in e. . judicium stet in aeternum . and so that not being the fundamental judgment , the reversal thereof is but the beginning of another suit , h. . . and admit that the vvrit of error be a supersedeas for the second judgment , yet it is a question whether it shall be for the first which is not touched by the vvrit : and whether they may grant execution upon it or not . vide e. . : e. . . h. . . and therefore the court advised sir christopher heydon to sue unto the kings majesty by petition to have a new writ of error , for without petition he cannot have the writ , e. . e . error . and the justices gave him warning to do it in time convenient , otherwise they would award execution if they did perceive the same to be meerly for delay , according to the cases in h . & ● . . and afterwards the parliament being upon a sudden dissolved without any thing done therein , execution was awarded . pasch . iacobi , in the kings bench. . blithman and martin's case . iohn blithman brought an action upon the case against martin upon an assumpsit , and recovered . and it was moved , that because the consideration which was the cause of the action was against law , that the judgment might be stayed . for the plaintiffe did alleadge the same to be in consideration , that if the plaintiff being goaler of such a prison in dev●nshire , would deliver one who was in execution for debt , he promised to give him twenty pounds : and he alleadged in facto , that he did deliver him , the debt not being satisfied : and because the consideration was to do a thing which was against the law , the opinion of the court was that it was void , and that the plaintiffe should not have judgment . pasch . iacobi , in the kings bench. . sherloe's case . sherloe brought an action of assault and battery , and declared quod eum the defendant verberavit : and did not shew certain , nor alleadge precisely in his declaration , that the defendant did beat him . exception was taken unto it : for there is a difference betwixt a declaration in an ejectione firme , debt , and this action ; for in those actions such declaration is good , but not in this action . and to prove the same , one sheriffe and bridges case in eliz. was cited , where such declaration was adjudged void . but yet the opinion of the justices was , that the declaration was good enough notwithstanding the said judgment in eliz. pasch . iacobi , in the kings bench. . grube's case . it was moved in arrest of judgment upon issue joyned inter mathiam grub , and in the venire facias he was called matheum grub. and cook chief justice said , that the venire facias was vitious : but because that the jury did appear upon the habeas corpora , the trial was well enough . pasch . iacobi , in the kings bench. . crook and averin's case . crook merchant brought an action upon the case against averine for speaking these words , viz. mr. crook came into cornwal with a blue coat : but now he hath gotten much wealth by trading with pirats , and by cosening by tale of pilchers , and by extortion . and cook chief justice said , that the law giveth no favour to those verbal actions , and we see there is not any such action brought in our old law-books . and therefore he said , words ought to be certain : and he examined the words in this case by themselves ; and said , that the first words are not actionable , because they are not material ; and the other words ( by trading with pyrats ) are too general ; for an honest man might trade with a pyrate , not knowing him to be a pyrate , and so no damage might come to him . but as to the other words he gave no opinion . pasch . jacobi , in the kings bench. . claydon & sir jerom horsey's case . claydon brought an action upon the case against sir jerom horsey for erecting of a house in a certain place called risborough common : and alleadged in certain , that every one who had common in risborough pred . &c. and did not alleadge , that the common is in the mannor of risborough : but he declared , that there is such a custome within the mannor of risborough . and the opinion of the court was , that the declaration was good , because there is but one risborough alleadged , and therefore of necessity it must be meant de manerio . pasch . iacobi , in the kings bench. . the clothworkers of ipswich case . the masters and wardens of the clothworkers of ipswich in the county of suffolk , brought an action of debt for l. s. d. against d. and declared , that the king who now is had incorporated them by the same name , &c. and had granted unto them by charter , quod nullus exerceat artem sive occupationem in aliqua shoppa , domo sive camera infra villam predict . of a clothworker or tailor , nisi ante eos vel duos eorum probationem faceret quod apprentic . fuit per spacium annorum , & per eos sive duos eorum sit approbat . sub paena l. s. d. pro qualibet septimana qua exerceat predict . artem contra hanc constitutionem . and layed in facto , that the defendant had used the trade of a tailor for the space , &c. against &c. the defendant pleaded , that he was retained in service with one mr. pennel gen : of ipswich , and had been an apprentice for the space of seven years in tali loco , &c. and that he made garments for his said master and his wife and their children , infra &c. quae quidem exercitio est eadem exercitio artis which is supposed by the plaintiffs in their declaration . upon which the plaintiffs did demur in law. goldsmith for the plaintiffs , that the plea in bar is void : for every plea in bar ought to confesse and avoid , traverse or deny that which is alleadged in the plaintiffs declaration : but this plea in bar had not done any of them , and therefore was void : for the exercising of the trade which he hath confessed in his bar , cannot be intended the same matter with which the plaintiffs have charged him in their declaration , and therefore it is no good bar at all : and to prove the same , vide h. . . h. . . h. . . h. . . sir robert hitcham for the defendant : and he held that the matter is well confessed and avoided ; because that usage which he hath confessed in the bar is colourable the same usage with which the plaintiffs have charged him in their declaration . as in a writ of maintenance , the defendant saith that he was of councel with the party , being a serjeant at law , &c. which is the same maintenance which is supposed by the plaintiffe : vide h. . . & . h. . . e. . . h. . . also he said , when a declaration is general , the defendant need not traverse , e. . . e. . . and further he said , that the statute of eliz. cap. . of demurs helped that defect , for that it is but only in matter of form . but the justices did not argue that point : but the question which they made was , whether the constitution or ordinance were lawful or not : and as to that it was holden by the whole court , that the said ordinance was unlawful : and it was agreed by the court , that the king might make corporations , and grant to them that they may make ordinances for the ordering and government of any trade ; but thereby they cannot make a monopoly , for that is to take away free-trade , which is the birthright of every subject . and therefore the case was in h. . . in debt upon a bond upon condition , that one should not use his trade of a dyer in the town where the plaintiffe did inhabit for one year : and there said , that the obligation was void , because the condition was against the law ; and he swore ( by god ) if the plaintiffe were present , that he should go to prison till he had paid a fine to the king : yet regularly , modus & conventio vincunt legem . . it was resolved , that although such clause was contained in the kings letters patents , yet it was void : but where it is either by prescription or by custome confirmed by parliament , there such an ordinance may be good ; quia consuetudo legalis plus valet quam concessio regalis . the king granted unto the abbot of whitny the custody of a port which is as it were a key of the kingdom ; and therefore the grant was void and so adjudged : and such grants are expresly against the statute of e . cap. . and the charter granted by king henry the . to the physitians of london hath the same clause in it : but if it had not been confirmed by act of parliament made h. . it had been void . the king granted unto b. that none besides himself should make ordnances for battery in the time of war : such grant was adjudged void . but if a man hath brought in a new invention and a new trade within the kingdom , in peril of his life , and consumption of his estate or stock , &c. or if a man hath made a new discovery of any thing , in such cases the king of his grace and favour , in recompence of his costs and travail , may grant by charter unto him , that he only shall use such a trade or trafique for a certain time , because at first the people of the kingdom are ignorant , and have not the knowledge or skill to use it : but when that patent is expired , the king cannot make a new grant thereof : for when the trade is become common , and others have been bound apprentices in the same trade , there is no reason that such should be forbidden to use it . and cook chief justice put this case : the king granted to b. that he solely should make and carry kersies out of the realm ; and the grant was adjudged void , which crook concessit . . it was resolved , that this charter was void , because of the words , viz. nisi ante eos vel duos eorum probationem fecerit , &c. and therefore it was considered what proof should be sufficient for the party : and as to that it was agreed , that the proof cannot be upon oath ; for such a corporation cannot admidister an oath unto the party : and then the proof must be by his indentures and witnesses ; and perhaps the corporation will not allow of any of them : for which the party hath no remedy against the said corporation , but by his action at the common law ; and in the mean time he should be barred of his trade which is all his living and maintenance , and to which he had been apprentice for seven years . another reason was given , because that by this way they should be judges in their own cause , which is against the law : and the king cannot grant unto another to do a thing which is against the law. and afterwards trin. jacobi , judgment was entred , quod querentes nihil capiant per billam . and judgment was then given for the defendant . pasch . iacobi , in the kings bench. . linsey and ashton's case . linsey brought an action of debt against ashton upon a bond , the condition of which was to perform an award . the defendant said that the award was , that the defendant should surcease all suits depending betwixt them , which he had done : the plaintiffe in his replication said , that the arbitrators made such award ut supra , and also that the defendant should pay unto the plaintiffe l. at the house of j. s. absque hoc , that they made the other award only . upon which the defendant did rejoyn and said , that well and true it is that they made those awards , &c. but they further awarded that the plaintiffe should release unto the defendant , which he had not done . and upon the rejoynder the plaintiffe did demur in law. and the opinion of the court was without question , that the plea was a departure , h. . . but it was argued by finch , that the replication was insufficient : for the plaintiffe ought not to have traversed , as this case is , because that a man ought not to traverse a thing alleadged by implication , but ought to traverse that which is alleadged de facto , upon which there may be an issue joyned . and to prove the traverse void , the case in h. . . was put : but the exception was not allowed by the court. another exception was taken , because the award it self was void , because it was to do a thing upon the land of another man , which he might not lawfully do : and although the arbitrators might award him to do the thing which is inconvenient , yet they cannot award him to do a thing which is impossible and against the law : as in e. , . two were bound to stand to the arbitrement of j. s. of all trespasses ; who awarded that the one should pay unto the other . and that he find sureties to be bounden for the payment of it . and by the opinion of the justices the award was void , because he could not award a man to do that which did not lie in his power , and he hath no means to compel the stranger to be bound for him . but the opinion of the whole court was against finch ▪ for first , the mony is to be paid apud domum j. s. and not in domo ; and it might be , for any thing that appeareth , that the said house is adjoyning to the high-way , so as every stranger might lawfully come unto it , although he might not come into it without being a trespassor : but admit it be not adjoyning to the high-way , yet he might come as neer unto the house as he could , or he might get leave to come thither . secondly , it was resolved , that although the award was void as to that part , yet for the residue it stood good , and therefore for not performance of the same the bond is forfeited . as if j. be bounden to perform the award of j. s. for white-acre , and that he award that i enfeoffe another of white-acre , and that he give unto me ten pounds : if i tender unto him a feoffment of white-acre , and he refuseth it , and will not give to me the l. i shall have an action of debt upon the bond , as it is adjudged in osborn's case c. . par . . the same law , if j. s. and j. n. submit themselves unto the award of j. d. who awardeth that j. s. shall surcease all suits , and procure j. n. to be bounden with a stranger , and make a feoffment of his mannor of d. which is a thing out of the submission : in that case there are three things enforcing the arbitrement ; the first is only good , the second is against the law , and the other is out of the submission : yet being in part good , it ought to be performed in that , otherwise the bond is forfeited . but this case was put : if j. be bounden to stand to the award of a. ita quod it be made de & super premissis , and afterwards . a. maketh an award but of part of the premises , there it is void in all , because it is not according to the authority given unto him . and afterwards in the principal case judgment was given for the plaintiffe . pasch . jacobi , in the kings bench. . dockwary and beal's case . in an essex jury , the opinion of the court was , that wood will passe by the name of land , if there be no other land whereby the words may be otherwise supplied . also it was agreed , that the tenant for years might fell underwoods of years growth , if the same hath used to be felled . pasch . jacobi , in the kings bench. . wrotesiey and candish's case . elizabeth wrotesley did recover dower jacobi in the common-pleas ; in which writ she demanded tertiam partem manerii de d. eum pertinaciis , nec non tertiam partem quarundam terrarum jacent . in hovelan . and upon ne unque seise que dower the parties were at issue , and the venire facias awarded de hovelan : and it was found for the plaintiffe , and judgment was given for her . and candish the defendant brought a writ of error in the kings bench ; and assigned for error , that it was a mis-trial : for that the venire facias ought to have been de manerio , and not of hovelan , h. . . h. . . c. par . ● . h. . . e. . . yet the councel of the defendant moved , that the trial was good for the land in hovelan : and it being found that the husband was seised of the mannor of d. that now the trial was good for the whole . pasch . jacobi , in the kings bench. . cowley and legat's case . cowley brought an audita quaerela against legat , and the case was this : cowley and bates bound themselves in a bond of l. jointly and severally to legat ; and afterwards jacobi , legat brought an action of debt upon the bond against bates , and had judgment ; and jacobi the said legat brought debt against cowley in the kings bench upon the same bond , and obtained judgment ; and afterwards he sued forth execution upon the first judgment by elegit , and had the land of bates , who was tenant thereof only for another mans life , in execution ; and afterwards he took forth a capias ad satisfaciendum against cowley upon the judgment in the kings bench : and thereupon cowley brought an audita quaerela , containing in it all the whole matter . and the opinion of all the justices was , that the audita quaerela was well brought . and first it was holden , that when a man may plead the matter in bar , he shall not have an audita quaerela upon the matter , because it was his lachess that he did not take advantage of it by way of plea. but secondly in this case it was said , that he could not have pleaded the special matter ; and therefore as to that point the audita quaerela was well brought . but the onely doubt in the case was , whether legat the defendant might have a new execution by capias ad satisfaciendum , after that he had execution against one of the obligers by elegit : and the doubt was , because the judgments upon which he grounded his executions were given at several times , and in several courts , and against several persons : for it was agreed by the whole court , that a capias doth not lie after execution sued by elegit against the same person ; but after a capias an elegit is grantable : and the reason of the difference is , because upon the prayer to have an elegit , it is entred in the roll , elegit sibi executionem per medietatem terrae , so as he is estopped by the record to have another execution ; but upon a capias nothing at all is entred upon record . yet cook chief justice said , that it is the common practice of a good attorney to deferre the entry in the roll of execution upon an elegit , until the sheriffe hath retorned it served : and in such case it was agreed , that if the sheriffe retorn upon the elegit , that the party hath not lands , &c. then the party may take forth a capias . also the elegit is in it self a satisfactory execution ; and by the common-law a man shall have but one execution with satisfaction . and therefore at the common-law , if after execution the land had been evicted , the party had no remedy : and cook said , if part of the land be evicted , the party shall not have remedy upon the statute of h. . cap. . to which crook justice agreed . and the court held it to be no difference , although that the judgments were given in several courts against persons several , and at several times , and where it is but one judgment against one person . vide the case e. . . where in debt the defendant said , that the plaintiffe had another action for the same debt depending in the exchequer by bill , judgment , &c. and by mowbray and finchden cleerly it is a good plea , although it be in another court : and dodderidge justice said , that in the first case the said legat might sue the said cowley and bates severally , and after judgment he might choose his execution against which of them he pleased : but he could not have execution by elegit against them both . and therefore he said , that although there be an eviction of the land , or that the judgment be reversed by error after that he hath execution against one by elegit , yet legat could not have execution against the other : for by the first execution he had determined his election , and he could not sue the other : which cook agreed . mich. iacobi , in the kings bench. . fox and medcalf's case . in a writ of accompt brought in the court of york , the plaintiffe had judgment that the defendant should accompt : and upon that judgment the defendant in the court there brought a writ of error in the kings bench. and it was adjudged , that no writ of error lay in that case , because the judgment to accompt is but the conveyance , and the plaintiffe hath not any benefit until he be satisfied by the award of the auditors ; for upon their award the final judgment shall be given . mich. iacobi , in the kings bench. . the bishop of salisbury's case . it was holden in this case , that if a bishop , parson , or other ecclesiastical person do cut down trees upon the lands , unless it be for reparations of their ecclesiastical houses ; and do or suffer to be done any delapidations : that they may be punished for the same in the ecclesiastical court , and a prohibition will not lie in the case ; and that the same is a good cause of deprivation of them of their ecclesiastical livings and dignities . but yet for such wastes done they may be also punished by the common law , if the party will sue there , vide h. . . trin. iacobi , in the kings bench. . prat and the lord north's case . a man was distreined by the bailiffe of the lord north , for s. imposed upon him in the court-leet for the erecting and storing of a dove-cote : and it was said , that it cannot properly be called a nusance , but for the destroying of corn , which cannot be but at certain times of the year : and therefore it was conceived , that the party who was presented might traverse the nusance to be with his pidgeons ; and it was said that a man might keep pidgeons within his new house all the year , or put them out at such a time as they could not destroy the corn : and cook chief justice said , that there is not any reason that the lord should have a dove-cote more then the tenant ; and he asked the question , where the statute of e. . saith , inquiratur de dove-cotes erected without licence , who should give the licence ? ad quod non fuit responsum . in mich. term following the case was argued by damport , who said , that the erecting of a dove-cote by a freeholder was no nusance : for a writ of right lieth of a dove-cote , and in the register it is preferred and named before land , garden , &c. but he said that there was a fatal defect in the plea : which was , that the presentment at the leet was . that prat had erected a dove-cote unlawfully , and did not say ad commune nocumentum , as it ought to be , otherwise it is not presentable in the leet : and therefore although it was otherwise in the plea , that it was ad commune nocumentum , the same did not help the defective presentment . mich. jacobi , in the common pleas. . greenway and barker's case . betwixt greenway and barker , it was moved for a prohibition to the court of admiralty ; and the cause was for taking of a recognisance in which the principal and his sureties , his heirs , goods and lands were bounden : and it was in the nature of an execution at the common-law ▪ and thereupon they in the admiral court made out a warrant to arrest the body of the defendant there . dodderidge serjeant said , that it was not a recognisance at the common-law , but only a stipulation , in the nature of a bail at the common-law ; and he said , that it was the usual course to pledge goods there in court to answer the party if sentence were given against him . nichols serjeant : they cannot take a recognisance ; and by the civil law , if the party render his body the sureties are discharged ; and execution ought to be only of the goods , for the ship is only arrested ; and the libel ought to be only against the ship and goods and not against the party , h. . acc ' . and afterwards dr. steward and dr. james were desired by the court to deliver their opinions what the civil law was in this case : and doctor steward said , he would not rest upon the etymologie of the word ; for if it be a recognisance , bail , or stipulation , it is all one in the civil law ; and in such case he said by their law execution might be against the sureties . and he argued , . that ex necessitate it must be agreed that there is an admiral court. . that that court hath a jurisdiction : and by a statute made in henry the . time , and by another in the time of queen elizabeth , divers things as appeals , &c. were triable by the civil law. and he said , that every court hath his several form of proceedings ; and in every court that form is to be followed which it hath antiently used : and as to the proceedings he said , that first they do arrest the goods ; . that afterwards the party ought to enter caution , which is not a bond , but only a surety or security , which doth bind the parties . and he said , that the word haeredes was necessary in the instrument , for for the most part the sureties were strangers : and he said , that court took no notice of the word ( executors ) and therefore the word haeredes is used , which extends as well to executors and administrators as to heirs : and he said , that upon a judgment given in the court of admiraltie , they may sue forth an execution of it in forein parts , as in france , &c. and he said , that if contracts be made according to other laws , the same must be tryed according to the law of that country the contract is made . dr. james said , that in the same court there are two manners of proceedings ; the manner , the customs of the court are to be observed . and he said , that stipulation ought to be in the court by coertion , which word is derived ( à stipite ) by which the party is tyed ( as he said ) as a bear to the stake , or as vlisses to the mast of the ship . and he said , in a judicial stipulation four things are considerable : the judicial sistem ; . reparratum habere ; . judicatum solvere ; . de expensis solvendis , as appeareth in justinians institutes cap de satisdationibus : for satisdatio and stipulatio are all one in the civil law. and after cook chief justice said , that it ought to be confessed that there hath been a court of admiralty ; . that their proceedings there ought to be according to the civil law. and he observed four things , . the necessity of the court , . the antiquity of it , . the law by which they proceed , and lastly the place to which they are confined . and as to the necessity of the court he said , that the jurisdiction of that court ought to be maintained by reason of trade and traffique betwixt kingdom and kingdom ; for trade and traffique is as it were the life of every kingdom . . a mans life is in danger by reason of traffique , and merchants venture all their estates ; and therefore it is but reasonable that they have a place for the trial of contracts made upon the sea by them or their factors . and for the antiquity of the court , v. t' e. . sitz . t' annuity . r. . t' trespas in statham . and so long as there hath been any commerce and traffique by this kingdom , so long there hath been a court of admiralty . . he said , the court of admiralty is no court of record in which a writ of error lieth , h. . acc ' . . he considered the place : and that he said was of things super altum mare only , as appeareth by the stat. of r. . and he said , that all the ports and havens within england are infra corpus comitatus ; and vouched h. . & h. . hollands case , who was earl of exeter and admiral of england : who because he held plea in the court of admiralty of a thing done infra portam de hull , damages were recovered against him of l . and he said , that if the court and civil law be allowed , then he said the customs of that court ought to be allowed ; and he said , that the custome of the civil law is , that in no case the surety is chargeable , when the principal is sufficient : and he agreed with the doctors , that the word haeredes ought to be in the stipulation , because those beyond the seas did not take any cognisance of the word executors . also he said , that they may take the body in execution , which are for the most part the masters of the ships and merchants , who are transeuntes , and therefore if they could not arrest their bodies they might perhaps many times lose the benefit of their suits . but he said that in no case they might take forth execution upon lands . and he said , that if a contract be made in paris in france , it shall be tryed either by the common law , or by the law of france : and if it be tryed here , then those of france shall write to the justices of england , and shall certifie the same unto them . and he said , that in sir robert dudley's case it was allowed for good law ; where a fine was levied and acknowledged in orleance in france , which was certified and allowed for good by the common law here in england : but he said , that the civil law could not determine of the fine . and to conclude , he said , that no custome can be good which is against an act of parliament . the principal case was adjourned . mich. jacobi , in the kings bench. . the maior of york's case . in an action of false imprisonment brought , it was holden by the whole court , . that no man can claim to hold a court of equity , viz of chancery , by prescription ; because every prescription is against common right , and a chancery-court is founded upon common right , and is by the common law. . it was holden per curiam , that the king by his charter cannot grant to another any of the customs of london : but the like liberties , franchises and customs as london holdeth or useth , the king by his letters patents may grant . quaere , because the customs in london are confirmed by act of parliament . mich. jacobi , in the kings bench. . lambert and slingby's case . a man brought an action of debt as administrator , and took the defendants body in execution . the sheriffe suffered him to escape . and afterwards a will was found , by which will the said administrator is nominated executor . the question now was , whether he might maintain an action against the sheriffe for the escape as executor when he was but administrator at the time : and it was the opinion of the court that the action of debt against the sheriff upon the escape would lie , and that the same debt should be assets in the executors hands . and it was holden cleer , that the executor of an executor might have debt upon the escape , for that he is executor to the first testator ; and therefore à fortiori the action in the principal case would lie . mich. iacobi , in the common-pleas . . it was holden by the court , that if a man present by usurpation to my advowson , within six moneths i may have a quare impedit : but after the six moneths past , if the church become void , i cannot present , but am put to my writ of right of advowson . and that if a man usurpeth upon the king , he is put to his quare impedit within the six moneths . and it was holden , that a double usurpation upon the king doth put him to his writ of right . v. & e. ac● . pasch . iacobi , in the kings bench. . owen alias collin's case . john owen alias collins of godstow in the county of oxford , was indicted and arraigned of high-treason , for speaking these traiterous english words at sandwich in the county of kent , viz. if the king be excommunicate by the pope , it is lawfull for every man to kill him , and it is no murder : for as it is lawfull to put to death a man that is condemned by a temporal judge , so it is lawfull to kill the king if he be excommunicate by the pope : for that is the execution of the law , and this of the popes supreme sentence ; the pope being the greater , includes the king being the lesser . to which words he pleaded not guilty . and the evidence to the jury was , the major of sandwich , a parson of the same town , and the servant of the town-clark . and this was the sum of the evidence , that the said owen coming from s. lucar in spain , spake the said words to divers persons , who told them to the major : whereupon the said major had conference with owen , and then he spake the like words unto the major ; and thereupon the major tendred unto him the oath of allegiance , which he refused to take , and he put his hand to awriting containing the said words as his opinion ; and further said , that if he had twenty hands he would put them all to it . the exception which owen took unto the evidence given against him was , that he did not speak of the king of england but the same was said to be a simple exception : for before he spake the words to the major , the major asked him if he were an englishman , or not ? to which he answered , that he was ; and then after , he spake the said words to the major , which must necessarily have reference to the speeches which were before betwixt him and the major . and cook chief justice said , that if he had not spoken of the king of england , but of the king generally , yet it had included the king of england . the matter of his indictment of treason was not grounded upon the statute of supremacie , but upon the common-law , of which the statute of ● . . is but an expl●nation ; which was , his intent to compass the death of the king. and he said , that notwithstanding that the words as to this purpose were but conditional , viz. if he were excommunicate , yet ( he said ) it was high-treason . for proof of which two cases were cited . the duke of buckingham , in the time of king henry the . said , that if the king should arrest him of high-treason , that he would stab him with his dagger : and it was adjudged a present treason . so was it also adjudged in the lord stanley's case , in the time of king henry the . who seeing a young-man , said , that if he knew him to be one of the sons of e. . that he would aid him against the king. in the like manner a woman in the time of hen. . said , that if henry the . would not take again his wife queen katherine , that he should not live a year , but should die like a dog . so if discontented persons with inclosures say , that they will petition unto the king about them , and ( if ) he will not redress the same , that then they will assemble together in such a place and rebell : in these cases it is a present treason : and he said , that in point of allegiance none must serve the king with ifs and ands. further cook chief justice said , that faux the gunpowder traitor being brought before king james , the king said to him , wherefore would you have killed me ? faux answered him , viz. because you are excommunicated by the pope . how ? said the king. he answered , every maunday-thursday the pope doth excommunicate all her●tiques who are not of the faith of the church of rome ; and you are within the same excommunication . and afterwards owen was found guilty , and judgment of treason was given against him . mich. jacobi , in the kings bench. . simpson's case . richard simpson a copy-holder in fee , jacens in extremis , made a surrender of his copyhold habendum to an enfant in ventrefamier and his heirs ; and if such enfant die before his full age or marriage , then to john simpson his brother and his heirs . the enfant is born , and dieth within two moneths : upon which john was admitted , and a woman as heir-general to the devisor and to the enfant is also admitted and entreth into the land , against whom john simpson brought an action of trespasse , and it was adjudged against the plaintiffe . and two points were resolved in this case . . that a surrender cannot begin at a day to come , no more then a livery , as it was adjudged eliz : in this court in clarks case . . that the remaindor to john simpson cannot be good , because it was to commence upon a condition precedent , which was never performed : and therefore the surrender into the hands of the lord was void ; for the lord doth not take but as an instrument to convey the same to another . and it was therefore said , that if a copy-holder in fee doth surrender unto the use of himself and his heirs , because that the limitation of the use is void to him who had it before , the surrender to the lord is void . trin. jacobi , in the chancery . . the lord gerard's case . it was holden in the chancery in the lord gerards case against his copyholds of a●dley in the county of stafford , that where by antient rolls of court it appeareth that the fines of the copyholds had been uncertain from the time of king hen. the to the of h. the . and from thence to this day had been certain , except twenty or thirty : that these few antient rolls did destroy the custome for certainty of fine . but if from h. . all are certain except a few , and so incertain rolls before , the few shall be intended to have escaped , and should not destroy the custome for certain fines . hill jacobi , in the common-pleas . . bagnal and harvey's case . in a writ of partition it was found for the plaintiffe : and a writ was awarded to the sheriffe , that he should make the partition : and the sheriffe did thereupon allot part of the lands in severalty ; and for other part of the lands , the jurors would not assist him to make the partition . all which appeared upon the retorn of the sheriffe . and an attachment was prayed against the jurors who refused to make the partition ; and a new writ was prayed unto the sheriffe . and the court doubted what to do in the case , whether to grant an attachment or not , and whether a new writ to the sheriffe might be awarded ; and took time to advise upon it , and to see presidents in the case . hill. iacobi , in the kings bench. . blanford's case . a man seised of lands in fee devised them unto his wife for life , and afterwards to his two sons , if they had not issue males , for their lives ; and if they had issue males , then to their issue males ; and if they had not issue males , then if any of them had issue male , to the said issue male . the wife died , the sons entred into the lands , and then the eldest son had issue male who afterwards entred , and the younger son entred upon the issue and did trespasse and the issue brought an action of trespasse : and it was adjudged by the whole court , that the action was maintainable , because by the birth of the issue male the lands were devised out of the two sons , and vested in the issue male of the eldest . crook justice was against the three other justices . hill iacobi , in the kings bench. . brook and gregory's case . in a replevin the defendant did avow the taking of the cattle damage feasants . and upon issue joyned it was found for the plaintiffe in the court at winsor , being a three-weeks court. and the defendant brought a writ of error , and assigned for error , that the entry of the plaint in the said court was the . day of may , and the plaintiffe afterwards did declare there of a taking of the cattel the . day of may. and whether the same was error , being in a three-weeks court , was the question ▪ and e. . . was alleadged by harris , that it was no error . but the court held the same to be error , because no plaint can be entred but at a court ; and this entry of the plaint was mesne betwixt the court dayes , and so the declaration is not warranted , no ●ustome being alleadged to maintain such an entry . . it was holden by the court in this case , that 〈…〉 est erratum is pleaded , the defendant cannot alleadge dim●●●tion because there is a perfect issue before . . it was holden , that a 〈◊〉 cannot alleadge diminution of any thing which appeareth in the r●●●d to be 〈◊〉 . and because the defendant ●id alleadge diminution 〈◊〉 case of the record , and by the record it was certified that the 〈◊〉 was entred the day of may , the same was not good after issue joyned , and after judgment is given upon the ●●● record upon the first d●●●aration and pleading in the said court of winsor . and therefore the judgment was reversed by the opinion of all the justices . hill. iacobi , in the kings bench. . bisse and tyler's case . in an action of trover and conversion of goods , the defendant said , that j. s. was possessed of the said goods , and sold them unto him in open market . ●uaere whether it be a good plea , because it doth amount to the general issue of not guilty . curia avisare vult . and v. tompsons case , jac. in the kings bench , it was adjudged that it was no good plea. hill. jacobi , in the common pleas. . paginton and huet's case . in an ejectione firme the case was this , that the custome of a manor in worcestershire was , that if any copyholder do commit felony , and the same be presented by twelve homagers , that the tenant should forfeit his ●opyhold : and it was presented in the court of the mannor by the homage , that h●●t the defendant had committed felony . but afterwards at the as●ises he was acquitted : and afterwards the lord seised the copyhold . and it was adjudged by the court that it was no good custom , because in judgment of law before attaindor it is not felony . the second point was , whether the special verdict agreeing with the presentment of the homage , that the party had committed felony , did entitle the lord to the copyhold notwithstanding his acquital . quaere , for it was not resolved . mich. iacobi , in the common pleas. . the custom of a mannor was , that the heirs which claimed copy-hold by discent , ought to come at the first , second , or third court upon proclamations made , and take up their estates ▪ or else that they should forfeit them . and a tenant of the mannor having issue inheritable beyond the seas , dyed : the proclamations passed , and the issue did not return in twenty years . but at his coming over he required the lord to admit him to the copyhold , and proffered to pay the lord his fine : and the lord , who had seised the copyhold for a forfeiture , refused to admit him . and it was adjudged by the whole court , that it was no forfeiture , because that the heir was beyond the seas at the time of the proclamations , and also because the lord was at no prejudice because he received the profits of the lands in the mean time . mich. iacobi , in the kings bench. . a copyholder in fee did surrender his copyhold unto the use of another and his heirs , which surrender was into the hands of two tenants according to the custome of the mannor to be presented at the next court. and no court was holden for the mannor by the space of thirty years ; within which time the surrenderor , surrenderee , and the two tenants all dyed : the heir of the surrenderor entred , and made a lease for years of the copyhold according to the custome of the mannor ; and it was adjudged per curia●● , that the lease was good . mich. iacobi , in the common-pleas . . froswel and weiches case . it was adjudged , that where a copyholder doth surrender into the hands of copy-tenants , that before presentment the heir of the surrenderor may take the profits of the lands against the surrenderee : for no person can have a copyhold but by admittance of the lord. as if a man maketh livery within the view , although it cannot be countermanded , yet the feoffee takes nothing before his entry : but it was agreed , that if the lord doth take knowledge of the surrender , and doth accept of the customary rent as rent due from the tenant being admitted , that the same shall amount unto an admittance , but otherwise if he accept of it as a duty generally . mich. iacobi , in the exchequer . . it was adjudged in the exchequer , that where the king was lord of a mannor , and a copyholder within the said mannor made a lease for three lives , and made livery ; and afterwards the survivor of the three continued in possession forty years : and in that case because that no livery did appear to be made upon the endorsment of the deed , ( although in truth there was livery made ) that the same was no forfeiture of which the king should take any advantage . and in that case it was cited to be adjudged in londons case , that if a copy-tenant doth bargain and sell his copy-tenement by deed indented and enrolled , that the same is no forfeiture of the copyhold of which the lord can take any advantage . and so was it holden in this case . pasch . iacobi , in the kings bench . franklin's case . lands were given unto one and to the heirs of his body , habendum unto the donee , unto the use of him , his heirs and assignes for ever . in this ●ase two points were resolved . . that the limitation in the habendum did not increase or alter the estate contained in the premisses of the deed. . that tenant in tail might stand seised to an use expressed , but such use cannot be averred ▪ hill. iacobi , in the chancery . winscomb and dunches case . vvinscomb having issue two sons , conveyed a mannor unto his eldest son , and to the daughter of dunch for life , for the joynture of the wife , the remainder to the 〈…〉 . the son having no issue his father-in-law dunch procured him by deed indented , to bargain and sell to him the manner . the barg●ynor being sick , who died before enrolment of the deed within the 〈…〉 deed ●ot being acknowledged : and 〈◊〉 the 〈◊〉 coming to be enrolled , the clark who enrolled the same , did pro●●●e . wa●●●nt from the master of the rolls , who under-●●● upon the de●● , 〈◊〉 the deed be enrolled upon affidavit made of the delivery of the deed by one of the witnesses to the same . and afterwards the deed was e●●●●d within the six moneths . and the opinion of the court was● that 〈◊〉 conveyance was a good conveyance in law. and therefore the younger brother exhibited his bill in chanchery , pretending the conveyance to be made by practice , without any consideration . mich. iacobi , in the kings bench. ludlow and staci●s case . a man bargained and sold land by deed indented , bearing date junii jacobi . afterwards junii . the same year common was granted ●nto the bargainee for all manner of cattell commonable upon the land. junii the● deed of bargain and sale was enrolled . and it was adjudged a good grant of the common . and the enrolment shall have relation as to that , although for collaterall things it shall not have relation . hill. iacobi , in the kings bench. . note that it was held by dodderidge justice , and mountagu chief justice , against the opinion of haughton justice , that if lessee for years covenanteth to repair and sustein the houses in as good plight as they were at the time of the lease made ; and afterwards the lessee assigneth over his term , and the lessor his reversion : that the assignee of the reversion shall maintain an action of covenant for the breach of the covenants against the first lessee . hill. jacobi , in the common-pleas . . smith and stafford's case . a man promised a woman , that if she would marry with him , that if he dyed , and she did survive him , that he would leave unto her ● . they entermarried ; and then the husband dyed , not performing his promise . the wife sued the executor of her husband upon the said promise . and whether the duty did survive with the wife , or were extinguished by the entermarriage , was the question . and h●bart chief justice and warburton were against winch and hutton justices , that the marriage was a release or discharge of the ● . quaere . hill. jacobi , in the kings bench . plot' 's case . an en●ant brought an assise in the kings bench for lands in mich depending which , the tenant in the same assise brought an assise for the same lands in the common-pleas ; which last writ bore date and was recornable after the first writ . and the demandant in the second writ did recover against the enfant by default , by the a●●●se who found the seisin and disseisin . and upon a plea in 〈◊〉 of the first assise of that recovery , the enfant by way of replication set forth all the special matter , and that the de●andant at the time of the second writ brought was tenant of the land : and prayed that he might 〈◊〉 the recovery . and it was adjudged , that he might falsifie the recovery . for in all cases where a man shall not have error , no●●●taint , he may falsifie : but in this case he could not have error nor attaint , because the judgment in the common-pleas was not given only upon the default , but also upon the verdict . and it should be in vain for him to bring an attaint , because he shall not be 〈◊〉 to give other evidence then what was given at the first trial. also he shall falsifie the recovery , because it was a practise to defeat and take away the right of the enfant , and to leave him without any remedy whatsoever . pasch iacobi , in the kings bench. , ingin and payn's case . lessee for years was bounden in a bond to deliver the possession of a house unto the lessor , his heirs and assignes upon demand at the end of the term . the lessor did bargain and sell the rendition by deed enrolled to two : one of the bargainees at the end of the term demanded the delivery of the possession : the lessee refused , pretending that he had no notice of the bargain and sale . it was adjudged that the bond was forfeited . pasch . iacobi , in the common-pleas . . jermyn and cooper's case . a man by deed gave lands to a. and to a feme sole , and to their heirs and assigns for ever ; habendum to them and to the heirs of their bodies , the remainder to them and the survivor of them for ever . and it was adjudged by the court , that they had an estate in tail , with the fee-simple expectant pasch . jacobi , in the kings bench. . a man was indicted de verberationem & vulnerationem of j. s. and the words ( vi & armis ) were left out of the indictment . and the same was adjudged to be helped by the statute , and that the indictment was good . mich. jacobi , in the kings bench. . barnwel and pelsie's case . a parson did covenant and grant by deed with one of his parishioners , that in consideration of six pounds thirteen shillings and four pence per annum be paid unto him , that the said parishioner should be discharged of all tythes upon condition to be voyd upon default of payment . afterwards the parson against his grant did sue the parishioner in the spirituall court for tythes in kind ; and it was moved for a prohibition . but the court would not grant it , because that the originall , viz. the tythes , do belong to spirituall jurisdiction . but it was said , that the parishioner might have an action of covenant against the parson upon the deed in the temporall court. . posch : jacobi , in the kings bench. an action upon the case was brought for speaking of these words , viz. j. s. years since had two bastards , and hath paid for the nursing of them . and the plaintiff shewed , that by reason of these words , contention grew betwixt him and his wife , almost to a divorce . and it was adjudged , that an action would not lye for the words . and the chief justice said , that an action upon the case doth not lye for every ill word , but for words by speaking of which the plaintiff is damnified , and that cannot be in this case , the time being so long past . and the causes wherefore a man shall be punished for saying that a man hath a bastard , are two● the one , because by the statute of eliz. the offender is to be punished for the same : and secondly , because the party by such means is discredited , or hindered in his preferment . hill iacobi in the kings bench. hurlston and wodrofs case . henry hurlston was plaintiff against robert wodroffe in an action of debt upon a demise of a messuage with a sheep-walk , the latin word being ( ovile . ) and it was moved in arrest of judgement after a verdict found for the plaintiff , that the sheepwalk was not alledged to be appurtenant nor pleaded to be by grant by deed. but notwithstanding that it vvas ruled by the vvhole court , because it rested indifferent whether there was a grant by deed or not : that when the jury find that the sheep-walk did passe , it shall be intended that there was a deed. dodderidge justice in the argument of this case did hold , that by the word ( ovile ) although it be translated in english a sheep-walk , yet a sheep-walk did not passe by it but a sheep-cote , and by that the land it self did passe . hill. iacobi , in the kings bench. . hill and wade's case . hill brought an action upon the case against wade , and declared upon an assumpsit to pay mony upon request ; and did not alleadge the request certain : but issue was joyned upon another point , and found for the plaintiffe , that the failing of certain alleadging of the request in the declaration made the same insufficient . and so it was adjudged by the court with this difference , where it was a duty in the plaintiffe before , and where the request makes it a duty : for in the first case the plaintiffe need not alleadge the request precisely , but otherwise in the later . dodderidge justice put this case . if i promise j. s. in consideration that he will marry my daughter , to give him ● . upon request , there the day and place of the request ought to be alleadged in the declaration . montagu chief justice cited e. . and h. . to be contrary , viz. that the finding of the jury made the declaration which was vitious to be good : as if executors plead , that they have nothing in their hands the day of the action brought , it is insufficient ; but if the jury find assets it is good , and so by consequence the verdict shall supply the defect of pleading . but the court held these books to be good law , and not to be contrary , and well reconciled with this difference : for there the plea was naught only in matter of circumstance ; but otherwise it is where it is vitious in substance , as in this case it is . and a difference also was taken where the verdict doth perfect all which is material and ought to be expressed , and where not : for in the principal case , notwithstanding that the jury find the assumpsit yet the same doth not reach to the request , and without that the assumpsit is void , dodderidge justice cited e. . that if the declaration be vitious in a point material , and issue is taken upon another point , there the finding of it by the jury doth not make the declaration to be good . and so in the principal case judgment was given for the defendant . in this case it was agreed , that if a man bring an action of trover and conversion , and not alleadge a place where the conversion was although the issue for the trover be found for the plaintiff , yet he shall not have judgment . hill. iacobi , in the kings bench. . godfrey and dixon's case . cornelius godfrey brought an action of debt upon a lease against dixon , and declared , that cornelius godfrey his father being an alien , had issue daniel godfrey born in flanders : the father is made a denizen , and hath issue the plaintiffe his second son born in england . the father dieth : daniel is naturalized by act of parliament , and made the lease to dixon for years rendring rent and dyed without issue : and the plaintiffe his brother brought an action of debt for the arrearages as heire , and upon that it was demurred in law. and george crook in his argument said , that inheritance is by the common-law , or by act of parliament : and that three persons cannot have heirs in travnsersali linea , but in recta linea , viz. . a bastard , . a person attainted , . an alien ; see for that e. . plow . dom. . . e. . . h. . . e. . sitz . t' cousinage . & dr. & student . and he said , that denization by the kings charter doth not make the heir inheritable , h. . br. to denizen , and c. . part . . and he said , that he who inheriteth ought to be , . next of blood , . of the whole blood , and . he ought to derive his pedigree and discent from the stock and root , bracton lib. . fol. . and he said , that if a man doth covenant to stand seised to the use of his brother being an alien , that the same is not good and the use will not rise : but that was denyed by the court. and he said , that an alien should not have an appeal of the death of his brother : and he took a difference betwixt an alien and a person attainted ; and said , that the one was of corrupt blood , the other of no blood , and cited e. . . & eliz. hobby's case . dodderidge upon the argument of this case said , that if a man claim as cousin and heir , he must shew how he is cousin and heir ; but not when he claims as brother , or son and heir . the case was adjourned . hill. iacobi , in the kings bench gray's case . an action of debt was brought upon a bond with condition to stand to an arbitrement , and also that he should not begin proceed in , or prosecute any suit against the obliger before such a feast . the obliger did continue a suit formerly brought . george crook said , that the bond was forfeited , because it is the act of the obliger to continue or discontinue a suit , and profit accrues to him , therefore it shall be adjudged his act : but it is otherwise of an essoin , because that that may be cast by a stranger . and he cited the books of h. . . h. . e. . h. . . and he held , that it was a good award to continue , or discontinue a suit , because it is in the power of the party to do it , or not . hill. jacobi , in the kings bench. slye's case : in a scire facias to have execution , the sheriffe retorned , that by vertue of a writ of fieri facias he took the goods in execution ad valentiam of l. which remained in his custody for want of buyers , and that they were rescued out of his possession . mountagu chief justice and dodderidge justice , the plaintiffe shall have an execution against the sheriff ; & relyed upon the book of e. . . & e. . faulconbridge case . eliz. dyer . e. . t' execution , & c. . par . pettifers case . and dodderidge said , that by this retorn he had concluded himself , and was liable to the value of l. and he took this difference , where the sheriffe by vertue of the writ venditioni exponas sels the thing under the value , there he shall be discharged , but otherwise where he sels the goods ex officio . crook . and haughton justices , the plaintiffe shall not have a scire facias against the sheriffe , but where he hath the money in his purse : and they said , that the plaintiffe must have a distringas directed to the new sheriffe , or a venditioni exponas . note , the court was divided in opinion : but the law seems to be with crook and haughton ; and the books before cited prove their difference , and warrant it . hill iacobi , in the kings bench. sir john bret and cumberland's case . in an action of covenant brought by sir john bret against cumberland executor of i. c. the case was this . q. eliz. by her letters patents did demise a mill unto the testator for years reserving rent ; and these words were in the letters-patents viz. that the lessee , his executors and assignes should repair the mill during the term. the lessee assigned over all his interest unto fish , who attorned tenant and paid the rent to the queen ; and afterwards the queen granted the reversion to sir john bret and margaret his wife . the assignee is accepted tenant ; the mill came to decay for want of reparations , and sir john bret brought an action of covenant against the executor of the first lessee ; and it was adjudged for the plaintiffe . and dodderidge justice gave the reasons of the judgment , . because that by the statute of h. . all the benefit which the queen had was transferred to the grantee of the reversion . . it might be parcel of the consideration , to have the covenant against the lessee ; for a mill is a thing which without continual reparations will be ruinous and perish and decay : and he said ▪ that the assignee had his election to bring his action against the lessee or against the assignee , because it was a covenant which did run with the land. mountagu chief justice said , that the reason of the three cases put in walkers case is in respect of the interest : and took a difference where there is privity of contract , and where not . it was adjourned . hill. jacobi , in the kings bench. . webb and tuck's case . in an action of false imprisonment it was agreed , that a fine may be assessed for vert and venison . and it was said in this case by the justices , that a regarder is an officer of whom the law takes knowledge ; and so are justices in eyre . . it was agreed , that such things of which the law takes notice ought to be pleaded . that if a man in his pleading is to set forth the jurisdiction of the court of justices in eyre , if he say curia tent . &c. he need not set forth all the formalities of it . and mountagu chief justice in this case said , that if a man do justifie for divers causes , and some of the causes are not good , the same doth not make the whole justification to be void , but it is void for that only , and good for the residue ▪ hill. iacobi , in the kings bench. , cullifords case . cvlliford and his wife brought an action upon the case against knight for words : and declared upon these words viz. thou art luscombs hackney , a pockey whore , and a theevish whore , and i will prove thee to be so ; which was found for the plaintiffe ; and in arrest of judgment it was moved that the words were not actionable , which was agreed by the whole court quia verba accipienda sunt in mitiori sens●●● and judgment was staied accordingly . hill. . jacobi , in the kings bench. . in an action upon the case for words : the plaintiffe did relate that he was brought up in the studie of a mathematition , and a measurer of land : and that he was a surveyor : and that the defendant spake these words of him , viz. thou art a cosener and a cheating knave , and that i can prove . and the opinion of the court was , that the words were actionable : and montague chief justice , said that it was ruled accordingly in eliz. rot. . betwixt kirby and walter . and a surveyor is an officer of whom the statute of . e. . takes notice : and he said , that verba de persona intelligenda sunt de conditione personae : and he said that the words are actionable in regard it is a faculty to be a measuror of lands . but dodderidg justice put it with a difference , viz. betwixt a measurer of land by the pole , and one who useth the art of geometrie or any of the mathematicks ; for he said that in the first case it is no scandal , for that his credit is not impeached thereby ; but it is contrary in the other case , because to be a geometritian or mathematitian is an art or faculty which every man doth not attain unto . and he put this case : if a man be bailiffe of my mannor , there no such words can discredit him ; and by consequence he shall not have an action for the words , because the words do not found in discredit of his office ; because the same is not an office of skill , but an office of labour , quod nota . hill. jacobi , in the kings bench. . bishop and turners case . in a prohibition it was holden by the whole court , that for such things as a church-warden doth ratione officii no action will lie by his successor against him in the spiritual court ; and a churchwarden is not an officer but a minister to the spiritual court ; but it was holden that a churchwarden by the common law may maintain an action upon the case for defacing of a monument in the church . trin. jacobi , in the kings bench. . blackston and heap's case . in an action of debt for rent , the case was this : a man possessed of a tearm for years in the right of his wife made a lease for years , rendring rent to him his executors and assignes and died . the question was , whether the executors or the wife should have the rent : haughton and crook , justices against montague chief justice ( doddridg being absent ) that the rent was gon : but it was agreed by them all that the executors of the husband should not have it ; but montague held that the wife should have it . but it was agreed that if lessee for years maketh a lease for years , and afterwards surrendreth his tearm , that the rent is gon : and yet the tearm for years continues . and in the principal case , if the husband after the lease made had granted over the reversion , his grantee should not have the rent . but montague said , that in that case the wife in chancery might be releived for the rent . mich. iacobi , in the kings bench. . wait and the inhabitants of stoke's case . wayte a clothier of nubery was robbed in the hundred of stoke of l . upon the saboth day in the time of divine service . the question was whether the hundred were chargeable or not for not making out hue and cry. and of the justices were against montague chief justice , that they were chargeable , for they said that the apprehending of theeves was a good work , and fit for the saboth day , and also fit for the commonwealth . montague chief justice agreed that it was bonum opus ; and that it might be lawfully done : but he said that no man might be compelled upon any penalty to do it upon that day : for he said , that if he hath a judgment against i. s. and he comes to the parish-church where i. s. is with the sheriffe , and shews unto the sheriffe i. s. upon the saboth day , and commandeth the sheriffe to do his office , if the sheriffe do arrest i. s. in execution upon that day , it is good , but if he doth not arrest him it is no escape in the sheriffe . and he took a difference betwixt ministerial acts and judicial acts , for the first might be done upon the saboth day ; but judicial acts might not . but the case was adjudged according to the opinion of the three other justices . pasch . iacobi , in the kings bench. . spicer and spice's case . upon a special verdict the case was this : a man seised of gavil-kind land , devised the same to his wife for life , paying out of it l . per annum to his eldest son , and also devised the land to his second son paying l . per annum to his third son , and s to such a one his daughter ▪ and whether the second son had the land for his life or in fee , was the question . and it was adjudged that he had a fee-simple in it by reason of the payment of the collateral sums of l . and s . to his brother and sister : which charge to the brother might continue af-after the death of the devisee ; and if he should have but an estate for life , his charge should continue longer then his own estate : and so it was adjudged . mich. iacobi , in the kings bench. . in a habeas corpora , which was to remove two men who were imprisoned in norwich , the case was this , that within norwich there was a custom that two men of the said place should be chosen yearly to make a feast for the bailiffs ; and upon refusal for to do it , that they should be fined and imprisoned , which two men brought to the barr by the habeas corpra were imprisoned for the same cause ; it was urged and much stood upon , that the custom was no good custom for the causes and reasons which are delivered in baggs case in c. . part . but yet at the last the court did remand them , and held that the custom might be good . mich. jacobi , in the kings bench. . in an evidence , in an ejectione firme for land in the countie of hartford the case was this , a man was married unto a woman and died . the wife after weeks and days was delivered with child of a daughter ; and whether the said daughter should be heir to her father , or should be bastard , was the question ; and sir william padde knight , and dr montford physitians , were commanded by the , court to attend and to deliver their opinions in the case ; who being upon their oaths , delivered their opinions , that such a child might be a lawfull daughter and heir to her father ; for as wellas an antenatus might be heir , viz. a child born at the end of months , so they said might a postnatus , viz. child born after the weeks , although that weeks be the ordinary time : and if it be objected that our saviour christ was born at months and five days end , who had the perfection of nature , to that it may be answered , that that was miraeulum , & amplias . and they held that by many authorities and by their own experiences a child might be legitimate , although it be born the last day of the ●h month after the conception of it , accounting the months , per menses solares , & non lunares . hill. iacobi , in the kings bench. . webb and paternosters case . a man gave licence unto another to set a cock of hay upon his medow , and to remove the same in reasonable time ; and afterwards he who gave the licence , made a lease of the medow to the defendant , who put his cattel into the medow , which did eat the hay : and for that the paintiffe brought his action of trespass . and upon demurrer joyned , the court was of opinion against the plaintiffe : for upon the whole matter it appeared , that the said hay had stood upon the said ground or medow for years : which the court held to be an unreasonable time . mich. iacobi , in the kings bench. . brown and pell's case . in an ejectione firme upon a special verdict found , the case was this browne had issue two sons , and devised his lands to his youngest son and his heirs ; and if it shall happen his said youngest son to die without issue living his eldest son , that then his eldest son should have the lands to him and his heirs in as ample manner as the youngest son had them ; the youngest son suffered a common recovery , and died without issue living the eldest son ; the question was whether the eldest son or the recoverer should have the ●ands ; montague , haughton and chamberlain justices ; the same is a fee-simple conditional , and no estate tail in the youngest son , doddridge justice contrarie . mich. . jacobi in the kings bench. . pollyes case . in an action of trespass , it was agreed by the court : if tenants in common be of lands upon which trees are growing , and one of them felleth the trees and layeth them upon his freehold , if the other entreth into the ●and and carrieth them away , an action of trespasse quaere clausum fregit lyeth against him ; because the taking away of the trees by the first was not wrongfull , but that which he might well do by law : and yet the other tenant in common might have seized them before they were carried off from the land ; but if a man do wrongfully take my goods , as a horse , &c. and putteth the same upon his land , i may enter into his land and seize my horse again ; but if he put the goods into his house , in such case i cannot enter into his house and retake my goods ; because every mans house is his castle , into which another man may not enter without special li●ence . hill. iacobi , in the kings bench. . the case was , that two tenants in common of lands made a lease thereof for years rendring rent , and then one of them died : and the question was , who should have the rent ; and if the executor of him who died and the other might joyn in an action for the rent ; and as this case was , the opinion of the whole court was , that the executor and the other might joyn in one action for the rent , or sever in action at their pleasures . but if the lease had been made for life rendring rent ; the court was cleer of opinion that they ought to sever in actions . trin. jacobi , in the kings bench. . a man was bounden in a bond by the name of edmond , and his true name was edward ▪ and an action of debt was brought against the executors of edmond upon the said bond , who demanded oyer of the bond , and then pleaded that it was not the deed of their testator ; and issue being thereupon joyned , it was found by inquest in london to be his deed , viz. the deed of edmond ; and it was moved in arrest of judgment , quod querens nihil caperet per billam and so it was resolved and adjudged by the court ( doddridge only being absent ) and a case was vouched by henage finch recorder of london , to prove this case , that it was so adjudged in a case of writ of ererror brought in the exchequer-chamber ; in which case the party himself upon such a misnosmer , and after a verdict and judgment given in the same case , did reverse the judgment for this error . mich. iacobi , in the kings bench. . vesey's case . vvilliam vesey was indicted for erecting of a dove-house . and serjeant harvey moved , that the indictment was insufficient . the words were , that the defendant erexit columbare vi & armis ad commune nocumentum , &c. and that he was not dominus manerii nes rector ecclesiae . and the indictment was quashed , because it was not contained in the indictment that there were doves in the dove-cote : for the meer erecting of a dove-cote , if there be no doves kept in it , it is no nusans , as it was holden by the justices . mich. iacobi , in the kings bench. sir william bronker's case . sir william bronker brought an action upon the case for slanderous words : and he shewed in his declaration how that he was a knight , and one of the gentlemen of his majesties privy-chamber ; and that the defendant spake of him these scandalous words , viz. sir william bronker is a cosening knave , and lives by cosenage . which was found for the plaintiffe . in arrest of judgment it was moved that the words were not actionable , and so it was adjudged per curiam . pasch . iacobi , in the kings bench. . yate and alexander's case . yate brought an action upon the case against alexander attorney of the kings bench ; and declared , that the plaintiffe in an action of debt brought against alexander the defendant who was executor to his father , had judgment to recover against him as executor , and that he sued forth a fieri facias to the sheriffe to have execution : and that before the sheriffe could come to levy the debt and serve the execution , the defendant a secretè & fraudulenter vendidit , amovit & disposuit of all the testators goods , for which cause the sheriffe was constrained to retorn nulla bona , &c. ley chief justice said , that the action would well lie , because the sheriffe could not retorn a devastavit , because the goods were secretly conveyed away , so as the sheriffe could not tell whether he had sold or otherwise disposed of the said goods , and also because the plaintiffe is destitute of all remedy by any other action . to which dodderidge justice did agree ▪ but haughton justice was against it : for he said , that if one be to bring an action of debt against the heir , if the heir selleth the land which he hath by discent from his ancestors before the action brought , an action upon the case will not lie against him for so doing . dodderidge said , that the case which was put by haughton was not like to this case : for in this case if the sheriffe had , or could have retorned a devastavit , the action upon the case would not have lien ; but here the sheriffe hath not retorned any devastavit : and the sale being secretly made , the sheriffe could not safely retorn a devastavit , for so perhaps he might be in danger of an action upon the case to be brought against him for making of such a retorn . the case was adjourned till another day . pasch . jacobi , in the kings bench. . williams and gibb's case . note in this case it was said by ley chief justice , that whatsoever is allowed for divine service , or whatsoever cometh in lieu of tythes and offerings , the same is now become a thing ecclesiastical . and dodderidge justice also said , that no law doth appoint that the vicar or parson should read divine service in two several parish-churches , but only the ecclesiastical law. pasch . iacobi , in the kings bench. . stewry and stewry's case . a bill was exhibited into the court of chancery for the traversing of an office , who found one to be in ward to the king : and the parties were at issue super seperales exitus ; and a venire facias was awarded out of the chancery retornable in the kings bench , directed to the sheriffe quod venire faciat homines triare ( placita traversiae ) super seperales exitus . and it was moved , that the several issues ought to be expressed in the venire facias . dodderidge justice , it ought not to be ( placita traversiae ) for it shall never be called placitum , but when it is at 〈◊〉 kings suit . and the opinion of the court was , that the venire facias should be amended , and that the several issues should be expressed therein ; and young's case jacobi was cited for a president in the very point . pasch . jacobi , in the kings bench. . astley and webb's case . in an ejectione firme the words ( vi & armis ) were omitted out of the plaintiffs declaration : and although this was the default of the clark , yet the same could not be amended , but it made the declaration not to be good . pasch . jacobi , in the kings bench. . white and edward's case . in trespasse , edwards the defendant being a clark of the chancery , after an imparlance could not be suffered to plead his priviledge . it was moved in this case , that the declaration was viginti opali vocatè wythies ; and it was said it should have been ( anglicè ) and not vocatè : but the opinion of the court was , that ( vocatè ) was as good as anglicè . then it was moved , that the declaration was , that the defendant had felled twenty pearches of hedging whereas it ought to have been , that the defendant had felled a hedge containing twenty pearches ; for a man cannot cut a mathematical pole. but the court said , that the declaration was good notwithstanding that ; and cited e. . . where a man sells twenty acres of corn , and there exception was taken to it as it is here , viz. that it ought to have been twenty acres sowed with corn : but it was no good exception there , no more was it as the court said in this case ; for it is the common speech to say , twenty perches of hedging , a pint of wine , an acre of corn , &c. and therefore the declaration was ruled to be good , notwithstanding these exceptions which were taken to it by serjeant headley . pasch . jacobi , in the kings bench. . bridges and mill's case . an action upon the case was brought for speaking of these words , viz. thou ( inuendo the plaintiffe ) hast ravished a woman twice , and i will make thee stand in a white sheet for it . henden serjeant moved in arrest of judgment , that the action would not lie for the words : for he said , that by the common-law rape was not felony , but trespass , v. stamford . . but now by the statute of west . . cap. . it is made felony : and he said , that the later words , viz. ( stand in a white sheet ) doth mitigate the former words , by reason that in the former words the word ( felonice ) was omitted ; as the case is in c. . par . . barhams case , where the words thou didst burn my barn , and did not say , my barn full of corn , nor that it was parcel of his mansion-house , and therefore the action would not lie : for unlesse the barn were full with corn , or part of a dwelling-house , it is not felony . like unto humfries case adjudged in the common-pleas , where an action upon the case was brought for these words , thou hast pick'd my pocket and taken away ten shillings : and it was adjudged that the action would not lie , for he did not say that he had stollen ten shillings ; but if he had said nothing but thou hast pick'd my pocket , then the action would have been maintainable . ley and dodderidge justices , by the common-law rape was felony , and in the said statute the word felony is not , although it be used in the indictment . it was adjourned : but the opinion of the court seemed to be , that the action would lie for the words . pasch . iacobi , in the star-chamber . . sir henry fines case . in the case of sir henry fines in the star-chamber , exception was taken to one of the witnesses , viz. to dr. spicer , because that he stole plate , and had been pardoned for it . but notwithstanding the exception , the court did allow of the testimony of the said dr. spicer . and then hobart chief justice of the common-pleas cited cuddingtons case hill. jacobi , to be adjudged . cuddington brought an action upon the case for calling him thief : the defendant justified that such a day and year he stole a horse : the plaintiffe replied , that the king had given him a pardon for all felonies : and it was adjudged that the action did lie . afterwards at another day jones and dodderidge justices put the case more largely , viz. cuddington committed felony eliz. and jacobi by the general pardon he was pardoned . and they said , that he who procures a pardon , confesseth himself to be guilty of the offence : but by the general pardon it is not known whether he be guilty or not ; and in cuddingtons case it was a general pardon , and that was the cause that the action did lie , for that it is not known whether he committed the felony or not . but they conceived that if it had been a particular pardon , that then in that case the action would not have been maintainable : for the procuring of a special pardon doth presuppose , and it is a strong presumption that the party is guilty of the offence . note , it did not appear in the case of fines the principal case , whether the pardon by which dr. spicer was pardoned were a general pardon , or whether it were a particular and special pardon . pasch . iacobi , in the kings bench. . daver's case . in davers case who was arraigned for the death of william dutton , ley chief justice delivered it for law , that if two men voluntarily fight together , and the one killeth the other , if it be upon a sudden quarrel , that the same is but man-slaughter . and if two men fight together , and the one flieth as far as he can , and he which flieth killeth him who doth pursue him , the same is se defendendo . also if one man assaulteth another upon the high-way , and he who is assaulted killeth the other , he shall forfeit neither life , nor lands nor goods , if he that killed the other fled so far as he could . quod nota . pasch : jacobi , ●n the court of wards . . sir edward coke's case . this case being of great consequence and concernment , the master of the court of wards was assisted by four of the judges in the hearing and debating of it : and after many arguments at the barr , the said four judges argued the same in court , viz. dodderidge one of the justices of the kings bench , tanfield lord chief baron of the exchequer , hobart lord chief justice of the court of common pleas , and ley lord chief justice of his majesties court of kings bench : the case in effect was this : queen elizabeth by her letters patents did grant to sir christopher hatton the office of remembrancer and collector of the first fruits for his life , habendum to him after the death or surrender of one godfrey who held the said office then in possession ; sir christopher hatton being thus estated in the said office in reversion , and being seised in fee-simple of diverse mannors , lands and tenements , did covenant to stand seised of his said lands , &c. unto the use of himself for life , and afterwards to the use of j. hatton his son in tail , and so to his other sons intail ; with the remainder to the right heirs , of j. hatton in fee , with proviso of revocation at his pleasure during his life . godfrey the officer in possession died , and sir christopher hatton became officer and was possessed of the office , and afterwards he became indebted to the queen by reason of his said office ; and the question in this great case was , whether the mannors and lands which were so conveyed and setled by sir christopher hatton , might be extended for the said debt due to the queen , by reason of the proviso and revocation in the said conveyance of assurance of the said mannors and lands , the debt due to the queen was assign'd over , and the lands extended , and the extent came to sir edward coke , and the heir of john hatton sued in the court of wards to make void the extent : and it was agreed by the said four justices , and so it was afterwards decreed by cranfield master of the court of wards , and the whole court , that the said mannors and lands were liable to the said extent . and dodderidge justice who argued first , said that the kings majestie had sundry prerogatives for the recovery of debts and other duties owing unto him : first he had this prerogative , ab origine legis , that he might have the lands , the goods , and the body of the person his debtor in execution for his debt . but at the common law a common person ; a common person could not have taken the body of his debtor in execution for his debt : but the same priviledg was given unto him by the statute of . e. . cap. . at the common law he said that a common person debtee might have had a levari facias for the recovery of his debt , by which writ the sheriffe was commanded quod de terris & catallis ipsius , the debtor , &c. levari faciat , &c. but in such case the debtee did not meddle with the land , but the sheriffe did collect the debt and pay the same over to the debtor : but by the statute of west . . cap . the debtee might have an elegit , and so have the moyetie of the lands of his debtor in execution for his debt , as it appeareth in c. . part . . in sir william harberts case . secondly , he said , that the king had another prerogative , and that was , to have his debt paid before the debt of any subject , as it appeareth . e. . execution . and pasc . . elizabeth . dyer . . in the lord dacres and lassels case , and in m. . e. . dyer , , stringfellows case ; for there the sheriffe was amerced , because the king ought to have his debt first paid , and ought to be preferred before a subject vid. dyer , there the words of the writ of priviledg shew that the king is to be preferred before other creditors : by the statute of . h. . cap. . the execution of the subject shall be first served , if his judgment be before any processe be awarded for the kings debt . in the statute of . e. . cap. . i find that by the common law , the king might grant a protection to his debtor that no other might sue him before that the king was satisfied his debt . see the writ of protection , register ● . . b. the words of which are , et quia nolumus solutionem debitorum nostrorum caeteris omnibus prout ratione perogativae nostrae totis temporibus retroactis usitatae , &c. but that grew such a grievance to the subject , that the statute of . e. . cap. . was made . and now by that statute a common person may lawfully sue to judgment , but he cannot proceed to execution ( and so the kings prerogative is saved ) unless the plaintiffe who sueth will give security to pay first the kings debt ; for otherwise if the paty doth take forth execution upon his judgment and doth levy the money , the same money may be seized upon to satisfie the kings debt , as appeareth in . e. . title decies tantum . the third prerogative which the king hath , is that the king shall have the debt of the debtor to the kings debtor paid unto him . v. h. . . the abbot of ramseys case . the prior of ramsey was indebted . to the king , and another prior was indebted to the prior of ramsey : and then it was pleaded in barr , that he had paid the same debt to the king , and the plea holden for a good plea. and if rent be due and payable unto me by my lessee for years , the same may be taken for the kings debt , and the special matter shall be a good barr in an avowry for the rent , . e. . . a prior alien was indebted to the king for his farm rent : and being sued for the same , he shewed , that there was a parson who held a certain portion of tythes from him which were part of the possessions of the same priory , which he kept in his hands , so as he could not pay the king his farm-rent unlesse he might have those tythes which were in the parsons hands wherefore a writ was awarded against the parson to appear in the exchequer , and to shew cause why he should not pay the same to the king for the satisfying of the kings rent : and there skipwith justice said , that for any thing which toucheth the king and may turn to his advantage to hasten the kings business , that the exchequer had jurisdiction of it , were it a thing spiritual or temporal . v. e. . , . the like case , but there it is of a pension ; and the case of ass . . was the case for tythes : see also e. . swalds case to the same purpose . if two coparceners be in ward to the king , upon a suggestion that one of them is indebted to the king , the staying of his livery shall be for his moytie untill the king be satisfied his debt ; but the other sister shall have livery of the other moytie which belongs unto her , fitz. n. . . a. mich e. . and hill. . e. . which was one and the same case . the kings debtor brought a quo minus in the exchequer against his debtor : the defendant appeared , and the plaintiffe afterwards would have been nonsuit , but the court would not suffer him so to be : and it was there said , that a release by the kings debtor unto his debtor would not discharge the kings debtor as to that debt . in a quo minus in the exchequer upon a debt upon a simple contract , the defendant cannot wage his law , because the king is to have a benefit by the suit , although the king be no party to the suit , c. . par . . the fourth prerogative which the king hath , is , that the king shall have an accompt against executors , because the law there maketh a privity ; it being found by matter of record , that the testator was indebted to the king , which record cannot be denied . but in the case of a common person an accompt will not lie against executors for want of privity . the accompt which the king brings is ad computandum ad dominum regem , &c. without setting forth how the party came liable to accompt : but a common person in his accompt brought ought to shew how that the party was receiver , bailiff , &c. if a man doth entermeddle with the kings treasure ( the king pretending a title to it ) he shall be chargeable for the same to the king , c. . part . the earl of devonshire's case . the master of the ordnance pretending that the old broken and unserviceable ordnance belonged unto him by reason of his office , procured a privy-seal , &c. and afterwards disposed of them to his own use , and dyed : and his executor was forced to accompt for them . sir walter mildmay's case , mich. . & eliz. rot. . in the exchequer . sir walter mildmay was chancellor of the exchequer , and suggested unto the lord treasurer of england , that his office was of great attendance , and desired the lord treasurer that he would be pleased to allow unto him l. for his dyet , and l. per annum for his attendance ; which the lord treasurer did grant unto him , and he enjoyed it accordingly , and afterwards dyed , and his executors were forced to accompt for it , and to pay back the mony for all the time that their testator received it . c. . part . , . there is cited , that sir william cavendish was treasurer of the chamber of king h. . e. . and queen mary , and that he was indebted to k. e. . and to q. mary ; and that being so indebted he purchased divers lands , and afterwards aliened them , and took back an estate therein to himself and his wife , and afterwards dyed without rendring any accompt : the terre-tenants of the land were charged to answer to q. elizabeth for the monies , to which they pleaded the queens special pardon ; and it was in conclusion said , that the pardon was a matter of grace ex gratia , but in law the terre-tenants were chargeable to the said queen for the monies , v. com. . eliz. dyer , . in the exchequer , mich. . e. . rot. . ex parte rememb . regis . thomas farel collector of the fifteenths and tenths , being seised of lands in fee , and being possessed of divers goods and chattels , at the time when he entred into the said office ( being then indebted to the king ) did alien them all , and afterwards dyed without heir or executor : and a writ went out unto the sheriffe to enquire what lands and tenements goods and chattels he had at the time he entred into the said office ; and processe issued forth against the terre-tenants and the possessors of his goods and chattels ad computand . pro collectione predict . & ad respondendum & satisfaciendum inde domino regi , v. dyer , , ass . . a notable case to this purpose , mich. . e. . rot . . william porter mint-master did covenant with the king by indenture enrolled , that for all the bullion which should be delivered ad cambium regis pro moneta faciend . that mony should be delivered for it within eight dayes : which covenant he had broken , and therefore the king paid the subject for the bullion : and afterwards because john walweyen and richard piccard duxerunt & praesentaverant dict . william porter in officium illud tanquam sufficientem , ( and that they offered to be sureties for him , but were not accepted of ) which they did confesse ; ideo consideratum est quod predict . walweyen & piccard onerentur erga dominum regem : and they afterwards were charged to satisfie the king for all the monies which the king had paid for the said porter : and although that none of the kings treasure came to their hands , nor they had not any benefit as appeared by any matter in the case , yet because they were the means and causers that the king sustained damage and losse , they were adjudged to be chargeable to the king , c. . par . . this case is there cited . upon these cases vouched by me , i make divers observations . . i observe , that from age to age what care the judges had for the advancing and the recovering of the kings debts ; because thesaurus regis est vinculum pacis & bellorum nervus , and it is the slowing fountain of all bounty unto the subject . . i observe , that the king hath a prerogative for the recovery of debts due unto him . . i observe , that although the debt due to the king be puisne or the lesser debt , and although the debtor be able and sufficient to pay both debts , viz. the kings debt and the debt owing to the subject , yet the kings debt is to be first paid . now to apply these cases to the case in question here is a subject who is indebted to the king ; and i say , that the lands which such a debtor hath in his power and dispose ( although he hath not any estate in the lands ) shall be liable to pay the debt to the king : and i say , that sir christopher hatton had a fee in the mannors and lands in this case ; and although he did convey them bona fide , yet untill his death by reason of the proviso of revocation they were extendable . trin. . e. . rot. . walter de chirton customer , who was indebted to the king for the customs , purchased lands with the kings monies ; and caused the feoffor of the lands to enfeoffe certain of his friends , with an intent to defraud and deceive the king ; and notwithstanding he himself took the profits of the lands to his own use : and those lands upon an inquisition were found , and the values of them , and retorned into the exchequer ; and there by judgment given by the court the lands were seized into the kings hands , to remain there untill he was satisfied the debt due unto him ; and yet the estate of the lands was never in him : but because he had a power , viz. by subpena in chancery to compell his friends to settle the estate of the lands upon him , therefore they were chargeable to the debt . you will say perhaps , there was covin in that case : but i say , that neither fraud , covin , nor collusion is mentioned in the report in dyer . c. . par . . and that case was a harder case then our case is : for walter de chirton in that case was never seised of the said lands : but in our case sir christopher hatton himself had the lands ; and when he had the lands he was assured of the office , although he had not the possession of it , for he was sure that no other could have it from him , and no other could have it but himself . and for another cause , our case is a stronger case then the case of walter de chirton : for chirton had no remedy in law to have the lands ; but his remedy was only in a court of equity , and a remedy in consc ' onely : but in our case , sir christopher hatton had a time in which he might let the land to passe , and yet he had a power to pull it back again at his pleasure : so as he had the disposition of it ; but before the alteration of the uses he dyed : and if he had been living ( being indebted to the king ) the king might have extended the lands , because that then he had the possession of them . there were two considerations which moved sir christopher hatton to convey the lands : the first was honorable , viz. for the payment of his debts ; the second was natural , viz. for the preferment of his children . although the conveyance of the lands for payment of his debts was but for years , yet the same was too short , like unto a plaister which is too short for the sore : for the covenanters were not his executors , and so they were not liable to debts : and although he be now dead and cannot revoke the former uses , yet he had the power to revoke the uses during his life ; and so he was chargeable for the debt due to the king. tanfield chief baron agreed with justice dodderidge in all as before : and he said , that all powerful and speedy courses are given unto the king for the getting in of his revenues ; and therefore he said he had the said prerogatives as have been recited : and in e. . in libro rubro in the exchequer , there the foundations of the said prerogatives do appear . if a common person arrest the body in execution , he shall not resort to the lands , contr . to blumfields case , c. . par . the course of the exchequer makes a law every where for the king. if any officer be indebted unto the king and dyeth , the course of the exchequer is , for to call in his executors or the heir , or the terre-tenants to answer the debt ; and if he hath no lands , then a writ issueth out of the exchequer to know what goods he had , and to whose hands they be come . all inquisitions concerning lands in the like cases are , habuit vel seisitus ; and not that he was seised onely . the word habuit is a large word , and in it is contained a disposing power . but in this case sir christopher hatton had a power every day to revoke the uses ; and when he had once revoked them , then was he again as before seisitus . h. . in the exchequer , the kings farmor had feoffees to his use , and dyed indebted to the king : and upon an inquisition it was found that ( habuit ) for he had them in his power by compelling his feoffees by equity in chancery ; and therefore it was adjudged that the king should have the lands in the feoffees hands in extent . but in this case sir christopher hatton might have had the lands in him again without compulsion by a court of equity , for that he had power to revoke the uses in the conveyance at his pleasure . mich. . h. . rot . in the exchequer : a clark of the court was assigned to receive monies for the king , who had feoffees of lands to his use : and the lands were found and seised for the kings monies , by force of the word habuit . h. . philip butler's case , who was sheriffe of a county , being indebted to the king ; his feoffees were chargeable to the kings debt by force of the word habuit , for habuit the lands in his power . e. . bowes case acc ' . h. . a widow being indebted to the king , her feoffees were chargeable to pay the kings debt , because she had power of the lands , it being found by inquisition that habuit . r. . the like case . and eliz. in morgan's case it was adjudged , that lands purchased in the names of his friends for his use , were extended for a debt due by him to the king. hobart lord chief justice of the common pleas argued to the same purpose , and agreed with the other justices ; and he said in this case it was not material whether the inquisition find the deed to be with power of revocation ; for he said that the land is extended , and that the extent remains good untill it be avoided : and he said that a revocable conveyance is sufficient to bind the parties themselves , but not to bind the king ; but the lands are lyable into whose hands soever they come . when a man is said to forfeit his body , it is not to be intended his life , but the freedom of his body , imprisonment at the common law a common person could neither take the bodie nor the lands in execution ; but yet at the common law a capias lay upon a force , although it did not lie in case of debt , agreement , &c. the king is parens legum , because the laws flowed from him : he is maritus legum , for the law is as it were under covert baron ; he is tutor legum , for he is to direct the laws , and they desire aid of him : and he said that all the land of the kings debtor are liable to his debt . the word ( debitor ) is nomen equivocum , and he is a debtor who is any ways chargeable for debt , damages , dutie , rent behind , &c. the law amplifies evry thing which is for the kings benefit , or made for the king. if the king releaseth all his debts , he releases only debts by recognizance . judgment , obligation , specialtie or contract : every thing for the benefit of the king shall be taken largely , as every thing against the king shall be taken strictly ; and the reason why they shall be taken for his benefit is because the king cannot so nearly look to his particular , because he 〈◊〉 , intended to consider ardua regni pro bono publico . the prerogative laws is not the exchequer law , but is the law of the realm for the king , as the common law is the law of the realm for the subject : the kings bench is a court for the pleas of the crown , the common pleas is for pleas betwixt subject and subject , and the exchequer is the proper court for the kings revenues , . e. . . if the king hath a rent-charge , he by his prerogative may distrein in any the lands of the tenant , besides in the lands charged with the rent , . e. . . although that the partie purchaseth the lands after the grant made to the king , but then it is not for a rent , but as for a dutie to the king : and the king in such case may take the body . lands and goods in execution . see the lord norths case , dyer , . where a man became debtor to the king upon a simple contract . n. when he was chancellor of the augmentation received a warrant from the privy councel , testifying the pleasure of king e. . that whereas he had sold to r. &c. that the said chancellor should take order and see the delivery of &c. and should take bond and sureties for the king for the payment of the money ; by force of which warrant , he sent one t. his clark to take a bond of w. for the payment of the money , and he took bond for the king accordingly , and brought the same to the chancellor his master , and delivered the same to him to the kings use ; and presently after he deliverd the same back to t. to deliver over to the clark of the court , who had the charge of the keeping of all the kings bonds and specialties : and when t. had received the same back , he practised with r. and w. to deliver them the bond to be cancelled , and so it was done , and cancelled : and it was holden in that case , because that the said bond was once in the power and possession of n. that he was chargeable with the debt : but the queen required the debt of r. and w. who were able to satisfie the queen for the same . in mildmay's case cited before , there it was holden , that the queen might take her remedy either against the parties who gave the insufficient warrant , or against mildmay himself at her election . so a man ( he said ) shall be lyable for damages to the king , for that is taken to be within the word ( debita . ) in porters case cited before , there was neither fraud , covin , nor negligence ; and yet the persons who presented porter to the king to hold the office were chargeable for his negligence , whom they preferred to be master of the mint . but in that case , the bodie and goods of porter were delivered to his sureties as in execution , to repay them the monie which the king had levied of them . these cases prove that the word ( debitor ) is taken in a large sence : that the king shall have for the debts due to him , the bodie , goods and lands in execution . the word ( goods ) doth extend to whatsoever he hath , . h. . . the king shall have the debt which is due to his debtor upon a simple contract , and therein the debtor of the debtor shall not wage his law : for after you say that you sue for the king , it is the kings debt , and the king if he please may have evecution of it . an ejectione firme was brought in the exchequer by garraway against r. t. upon an ejectment of lands in wales ; and it was maintainable in the exchequer , as well as a suit shall be maintainable here for an intrusion upon lands in wales upon the king himself : and the king shall have execution of the thing , and recover damages , as he shall in a quo minus , in satisfaction of a debt which is due by his debtor to the king : . h. . . there the kings debtor could not have quo minus in the exchequer ; the case there was , that a man indebted to the king was made executor , and by a quo minus sued one in the exchequer who was indebted unto his testator upon a simple contract , as for his proper debt ; and the quo minus would not lie , because the king in that case could not sue forth execution : and every quo minus is the kings suit , and is in the name of the king , . ass . . a prior alien was arrear in rent to the king , the prior brought a quo minus in the exchequer against a parson for detaining of tythes , ( here is a variance of the law and the court ; for the right of tythes ought to be determined by the ecclesiastical law ) and it was found by verdict for the prior. a serjeant moved , that the court had not jurisdiction of the cause ; to whom it was answered , that they had and ought to have jurisdiction of it : for that when a thing may turn to the advantage of the king and hasten his business , that court had jurisdiction of it : and divers times the said court did hold jurisdiction in the like case : and thereupon issue was joyned there , and the reporter made a mirum of it ; but it seems the reporter did not understand the kings prerogative : for it is true , that such suit for tythes doth not fall into the jurisdiction of the kings bench , or common pleas ; but in the exchequer it is otherwise ; and if the suit be by quo minus , it is the kings suit. at a common persons suit the officer cannot break the house and enter , but at the kings suit he may : and a common person cannot enter into a liberty , but the king may if it be a common liberty : but for the most part when the king granteth any liberty , there is a clause of exception in the grant ; that when it shall turn to the prejudice of the king , as it may do in a special case , there the king may enter the liberty ; and a house is a common liberty , and the execution of justice is no wrong when it is for the king. the king hath the precedency for the payment of his debts to him , as it appeareth in stringfellows case cited before by justice dodderidge : and when lands are once lyable to the payment of the kings debts , let the lands come to whom you will , yet the land is lyable ●o his debt , as it appeareth in cavendishes case , dyer , . which was entred pasc . ● . eliz. rot. . in the exchequer , . ass . . a man bindeth himself and his heirs and dieth , and the heir alieneth the land ; the land is discharged of the debt as to the debtee ; but in the kings case , if at any time the land and debt meet together , you cannot sever them without payment of the kings debt . vid. littleton : executors , and soe administrators are chargeable in an account to the king : and the saying of mr littleton are adjudged for law , and are judgments : a sale in market over , nor a fine and nonclaim shall not bind the king ; and so it is of things bought of the kings villeyn , because nullum tempus occurrit regi : a common person in london , by custom may attach a debt in anothers hands : as he may come into court and shew that his debtor hath not any thing in his hand to satisfie his debt , but only that debt which is in the hands of another man ; and that custom is allowable and reasonable : and if it shall be reasonable for a subject so to attach a debt , will you have it unreasonable for the king ? before the statute of . e. . cap. . the king might protect his debtor as it appeareth by the register . and fitz. . . but the statute of . e. . gave the partie a liberty to proceed to judgement , but doth barr him from taking forth of execution upon the judgment , untill the king be satisfied his debt . in dyer , & . a man condemned in the exchequer for a debt due to the queen , was committed to the fleet , and being in execution he was also condemned in the kings bench at the suit of a subject upon a bill of debt in custodia mariscalli maris●alciae : afterwards upon prayer of the partie , a habeas corpus cum causa was awarded out of the kings bench to the warden of the fleet , who retorned the cause ut supra , and he was remanded to the fleet in execution for the debt : afterwards a command was given by the lord treasurer upon the queens behalf , to suffer the prisoner to go into the countrie to collect and levie monie , the sooner to pay the queen her debt : in that case the subject brought an action of debt against the warden of the fleet upon the escape , who justified the escape by the said commandment ; it was holden in that case , that although the partie was in execution for both the debts , yet before the queen was satisfied , the execution for the subject did not begin , for the king cannot have equall to have interest in the body of the prisoner simul cum illo : but if the case were as lassels case , . eliz dyer , then he might be in execution for the king , and for the subject . lassels was taken in execution at the suit of a subject , and before the writ was retorned , a writ for the queen came to the sheriffe , and lassels was kept in execution for the queen : in that case lassels was in execution for them both , viz. the queen and the subject . so there is a difference where the partie is first taken for the king , and where he is first taken for the subject . now i will consider of the case at barr ; whether the land might be extended notwithstanding the conveyance made . the kings debt is to be taken largely , and so goods in such case are to be taken largely , and so is it likewise of lands , viz. any land , be it land in use , upon trust , by revocation . by the law , debts are first to be paid , then legacies , then childrens preferments ; there is a difference where the land was never in the man , and where it was once in him , c. . part. . mights case : might purchased lands to him and to his heir ; it was resolved that this original purchase could not be averred to be by collusion , to take away the wardship , which might accrue after the death of might , for they were joynts , and the survivor shall have the whole : note , that there was no fraud , for that it was never in him ; but if it had once been the lands only of might , and then might had made the conveyance to him and his heir , then it would have been fraud to have deceived the king of the wardship . in the case at barr , hatton hath not aliened the land , for an alienation is , alienum facere , and here he hath not made it the land of another , having a power of revocation . sir john packington mortgaged his lands for l . the mortgagee enfeoffed w. and within the time of redemtion , packington and he to whom the money was to be paid , agreed that packington should pay him l . of the said l . and no more ; and yet in appearance for the better performance of the condition , it was agreed that the whole l . should be paid ; and that the residue above l . should be repaid back to packington , which was done accordingly . it was resolved in that case , that the same was no performance of the condition , because it was not a payment animo solvendi : and so in this case there was not any allienation animo 〈◊〉 ; for sir christopher hatton gave the lands , but yet he kept the possession . and received the profits of them ; and if sir christopher hatton had given the land with power of revocation , or reserving as in this case he did an estate for his own life , it had been all one . if a man deviseth the profits of such lands , the lands themselves do pass . and a conveyance of lands upon condition not to take the profits , is a void condition in law , lit. , . a feoffment is made upon confidence , and the feoffor doth occupie the land at the will of the feoffees , and the feoffees do release unto the feoffor all their right , litt. . there it was said that such a feoffor shall be sworn upon an inquest , if the lands be of the value of s . per annum , and that by the common law ; therefore it seemeth that the law doth intend , that when a man hath feoffees in trust , that the lands are his own ; and then if in such case the commonwealth shall be served , shall not the king who is pater reipublicae be served , so as he may be satisfied his debts ? if the case of walter de chirton had never been , yet i should now have the same opinion of the law in such case as the judges then had . the king is not bound by estopels , nor recoveris had betwixt strangers , nor by the fundamental jurisdiction of courts , as appeareth . ass . . where a suit was for tythes in the exchequer , being a meer spiritual thing ; and shall he be bound by a conveyance ? anno. . h. . then in the time of civil war uses began ; and of lands in use the lord chief baron tanfield in his argument hath cited diverse cases where the lands in use were subject and lyable to the debt of cestuy que use in the kings case , and so was it untill the statute of . h. . of uses was made . babbington , an officer in the exchequer , had lands in the hands of feoffees upon trust , and a writ issued out , and the lands were extended for the debt of babbington in the hands of his feoffees sir robert dudley having lands in other mens hands upon trusts , the lands were seized into the kings hands for a contempt ( and not for debt or damages to the king ; ) and in this case although that the ●nquisition do find the conveyance , but have not found it to be with power of revocation , ; yet the land being extended , it is well extended untill the contrary doth appear , and untill the extent be avoided by matter of record , viz. by plea , as the lord chief baron hath said before . ley chief justice of the kings bench argued the same day , and his argument in effect did agree with the other justices in all things , and therefore i have forborne to report the same at length . and it was adjudged , that the extent was good , and the land well decreed accordingly . pasch . jacobi , in the exchequer chamber . . the lord sheffield and ratcliff's case . in a writ of error brought to reverse a judgment given in a monstrans de droit in the court of pleas , the case was put by glanvile who argued for ratcliffe the defendant , to be this . e. . malew being seised of the mannor of mulgrave in fee , gave the same to a. bigot in tail , which by divers discents came to sir ralph bigot in tail , who jannarii h. . made a feoffment unto the use of ●is last will , and thereby after his debts paid declared the use unto his right heirs in fee , and . h. . dyed . the will was performed : francis bigot entred being tenant in tail , and h. . made a feoffment unto the use of himself and katherine his wife , and to the use of the heirs of their two bodies . then came the statute of h. . cap. . by which tenant in tail for treason is to forfeit the land which he hath in tail . then the statute of h. . of uses is made . then h. . francis bigot did commit treason , and h. . he was attainted and executed for the same . anno h. . a private act of parliament was made , which did confirm the attaindor of francis bigot , and that he should forfeit unto the king ( word for word as the statute of h. . is ) saving to all strangers except the offendor and his heirs , &c. e. . the heir of francis bigot is restored in blood , katherine entred into the mannor and dyed seised . eliz. their issue entred , and married with francis ratcliffe , and had issue roger ratcliffe , who is heri in tail unto ralph bigot , and they continue possession untill . eliz. and then all is found by office and the land seised upon for the queen , who granted the same unto the lord sheffield . francis bigot and dorothy die , and roger ratcliffe sued a monstrans de droit to remove the kings hands from off the lands , and a scire facias issued forth against the lord sheffield as one of the terre-tenants , who pleaded all this special matter ; and judgment was thereupon given in the court of pleas for roger ratcliffe ; and then the lord sheffield brought a writ of error in the exchequer-chamber to reverse the said judgment : and finch serjeant argued for the lord sheffield that the judgment ought to be reversed ; and now this term glanvile argued for roger ratcliffe , that the judgment given in the court of pleas ought to be affirmed . there are two points : the first , if there were a right remaining in francis bigot , and if the same were given unto the king by the attaindor and the statute of h. . second . if a monstrans de droit be a proper action upon this matter , which depends upon a remitter ; for if it be a remitter , then is the action a proper action . the feoffment by ralph bigot h. . was a discontinuance , and he had a new use in himself , to the use of his will , and then to the use of his heirs : then h. . ralph bigot dyed , and then francis bigot had a right to bring a formedon in the discendor to recover his estate tail . h ▪ . ( then the point ariseth ) francis bigot having a right of formedon , and an use by force of the statute of r. . cap. . before the statute of h. . by the feoffment he had so setled it , that he could not commit a forfeiture of the estate tail . when a man maketh a feoffment , every right , action , &c. is given away in the livery and seisin , because every one who giveth livery giveth all circumstances which belongs to it : for a livery is of that force , that it excludes the feoffor not only of all present rights , but of all future rights and tytles , v. c. . par . . and there good cases put to this purpose . h. . . by livery , the husband who was in hope to be tenant by courtesie , is as if he were never sised . h. . . the son disseiseth his father , and makes a feoffment of the lands ; the father dyeth , the hope of the heir is given away by the livery . it was objected by serjeant finch , . where a man hath a right of action to recover land in fee or an estate for life which may be conveyed to another , there a livery doth give away such a right , and shall there bind him : but an estate in tail cannot be transferred to another by any manner of conveyance , and therefore cannot be bound by such a livery given . i answer , it is no good rule , that that which doth not passe by livery , doth remain in the person which giveth the livery . h. . tenant in tail is attainted , office is found ; the estate tail is not in the king , is not in the person attainted , but is in abeyance : so it is no good rule which hath been put . when tenant in tail maketh a feoffment , non habet jus in re , neque ad rem : if he have a right , then it is a right of entre , or action ▪ but he cannot enter nor have any action against his own feoffment , h. . . dyer . if discontinuee of tenant in tail levieth a fine with proclamations , and the five years passe , and afterward tenant in tail dyeth , his issue shall have other five years , and shall be helped by the statute , for he is the first to whom the right doth accrue after the fine levied ; for tenant in tail himself after his fine with proclamations hath not any right : but if tenant in tail be disseised , and the disseisor levieth a fine with proclamations , and five years passe , and afterwards tenant in tail dyeth ▪ there the issue in tail is barred ; for there after the fine levied the tenant in tail himself had right , so as the issue in tail was not the first to whom the right did accrue after the fine levied , c. . part . com. . a. when ralph bigot made the feoffment h. . francis bigot had a right ; by his own feoffment h. . his right was extinguished . the second objection was upon the form of pleading in a formedon , viz. post cujus mortem discendere debet to him , viz. the issue . then the ancestor had such a right , which after his death might have discended to his issue ; then that proveth that the ancestor by his feoffment hath not given away all the right . i answer , the form is not post cujus mortem , but per cujus mortem ; and the post cujus mortem discendere debet is not traversable ; and therefore it is but matterof form , and not of substance . old entres . one dum non fuit compos mentis maketh a feoffment , he shall not avoid the feoffment , because that the law doth not allow a man to stultifie himself , c. . part . but his heir after his death may avoid the feoffment of his ancestor ; for de ipso discendit jus , although the father had not a right in his life . it was thirdly objected out of c. . part . b. where it is said , that if an ideot maketh a feoffment , the king shall avoid the same after office found . i answer , that the book it self doth cleer the objection : for it is in regard of the statute of prerogativa regis , cap. . ita quod nullatenus per eosdem fatuos alienentur , &c. and not in respect of any right which the party hath who maketh the feoffment . by the common law , tenant in tail , viz. he who had a fee-simple conditional , had not any right after his feoffment : then the act of west cap. . makes such a fee an estate in tail , and provides for the issue in tail , for him in the remaindor or in reversion , but not for the party who made the feoffment or grant ; for a grant of tenant in tail is not void as to himself . magdalen-colledge case ; a lease by a parson is good against himself , but voidable against his successor : and so the same is no exception , discendit jus post mortem , &c. the fourth objection was , that although tenant in tail had made a feoffment , yet he remained tenant to the avowry of the donor , and therfore some right of the old estate tail did remain in him . i answer , e. . a. e. . . b. h. . . h. . . b. c. . part . a. the matter of the avowry doth not arise out of the right or interest which a man hath in the land , but out of the privity : as when the tenant maketh a feoffment , he hath neither right nor interest in the land , yet the lord is not compellable to avow upon the alienee before notice . in a precipe quod reddat the tenant alieneth , yet he remaineth tenant as to the plaintiffe , and yet he hath not either a right or any estate as to the alienee . the fifth objection was upon the statute of r. . cap. . all feoffments &c. by cestuy que use shall be effectual to him to whom it was made against the feoffor and his heirs . i answer , the words of the statute are to be considered , all feoffments , &c : i desire to know how this affirmative law doth take away the power of the feoffees : and the feoffees are bound by the feoffment of cestuy que use , and are seised to the use of such alienees . h. . . b. by fitzherbert : if cestuy que use enter and maketh a feoffment with warrantie , &c. but there are not words that the old rights are given away . the feoffees to use before the statute of r. . c. . might only make feoffments ; but after that statute cestuy que use might also make feoffments of the lands : and so the statute of r. . did not take away the power of the feoffees , for they yet may make feoffments ; but it did enlarge the power of cestuy que use , com. , ● . then the question further riseth : if francis bigot had any right in the tail which might be forfeited by the statutes , by h. . and h. . a particular act made for the attaindor of the said francis bigot . from the time of west . . cap. ● untill the statute of h. . cap. . there were many bills preferred in parliament to make lands which were entailed to be forfeited for high treason ; but as long as such bils were unmasked , they were still rejected : but anno h. . then at a parliament a bill was preferred , that all inheritances might be forfeited for treason ; ( so that as under a vail ) lands in tail were forfeited for treason ) which was accepted of . the statutes of h. . & h. . are not to be taken or extended beyond the words of the statute , which are , that every offender hereafter lawfully convict of any manner of high treason , by presentment , confession , verdict or process of outlawry , shall forfeit , &c. it doth not appear that francis bigot was attainted in any of these wayes ; for the inquisition is , that he was indicted and convicted , but non sequitur that he was convict by any of those wayes , viz. verdict , confession , or outlawry ; and one may be attainted by other means : e. . in placito parliamenti , mortimer was attainted by parliament ; r. . alice percy was attainted by judgment of the lords and peers of the house of lords in parliament . it was objected , that after an indictment verdict ought to follow : i answer , non sequitur : for it may be without verdict , viz. by standing mute ; and then the statute of h. . doth not extend unto it , c. . part , . admit it were an attaindor within the statute of ● h. . yet francis bigot had not such lands which might be forfeited , c. . part . for this statute doth not extend to conditions or rights , and c. . part . this act of h. . doth not extend to rights and titles : and it is cleer that francis bigot had not any estate within the letter of the act. it was objected , that if we have not set forth the full title of the king in the monstrans de droit , then is the monstrans de droit naught , and void . i answer ▪ e. . . e. . . i find no book that in a monstrans de droit we should be put to observe that rule : for a petition were a going about ; the statute of e. . cap. . gives the monstrans de droit : e. . . if a petition be void for want of instructing the king , and if all his title be not set forth in it , then the court is to abate the petition ; but after judgment to find such a fault , he must have a scire facias , and not a new petition ; and in our case there was none who gave in such matter for the king. now i come to the statute of . h. . the particular act for the attainder of francis bigot , and that he should forfeit all such lands , &c. conditions , rights , &c. in fee , and fee tail saving , &c. and as the lands of francis bigott stood stated at the time of the making of this act of . h. . the statute did not extend to him to make him forfeit any thing in the statute of . h. . cap. . there were as many words as in this statute of . h. . and many cases upon the statute of . h. . are adjudged upon the words , shall lose and forfeit . there is a difference betwixt an act of assurance , and an act of forfeiture : if the words be , that the king shall enjoy and have , it is then an act of assurance , and the lands are given to the king without office ; but by an act of forfeiture the lands are not in the king without office found . exceptio firmat regulam , but our case is out of the rule . savings in acts of parliaments were but of late days : . e. . there was a private act : a petition was preferred against divers in parliament for sundry misdemeanours , and it was enacted that they should forfeit unto the king and his heirs , &c. in that act there was no exception of saving for it was but a forfeiture of their rights , and savings were but of late times , trin. . h. . rot. . a petition of right in the chancery , upon that was a plea which was after the attainder of the duke of suffolk ) that the duke did disseise him ; it was shewed that the attainder was by parliament , and he shewed no saving to be in the statute in the petition ; and yet it was well enough , com. . wyat tenant in tail of the gift of the king , made a feoffment , and by act of parliament mariae was attainted of treason , by which he was to forfeit , &c. as in our case . i answer , that within two years after that judgment , upon solemn argument it was adjudged contrarie , com. . it was objected that in that case a writ of error was brought , com. . and that the judgement was affirmed in the case of walsingham . i answer , that the same was by reason of the plea in barr : and com . there plowden confesseth that the judges were not agreed of the matter in law , and the lands in question in walsingams case do remain with moulton , and at this day are enjoy'd contrary to the judgment given in walsinghams case : it was objected , that although this act of . h. . was made after the attainder , yet that it should relate to all the lands which francis bigot had at the time of the treason committed . i answer , that this act of . h. : is but a description what lands he shall forfeit , viz. all the lands which he had at the time of the treason committed . the second point is upon the remitter of roger ratcliff before the inquisition , for there was a discent to roger ratcliff . when tenant in tail is attainted of treason , his blood is not corrupted , c. . part . . lumleys case . and the statute of . h. . is the first statute which vests lands forfeit for treason in the king without office found : so as according to the lord lumley's case , c. . part . . before this statute of h. . the land did discend to the issue in tail . the rule of nullum tempus occurrit regi , is to be meant for the preserving of the kings right , but not to make the king to do wrong . com. . there the remitter is preferred before the king. . e. . . there the devise of a common person was preferred before the right of the king. . h. . . the lord greistock's case : the dean of york did recover against him , and before execution the lord died , his heir within age ; the dean shall have his execution , notwithstanding that the king hath right to have the ward : a fortiori a remitter shall be preferred before the kings title . c. . part . . the rule nullum tempus occurrit regi , is to be intended when the king hath an estate or interest certain and permanent , and not when his interest is specially limited , when and how he shall take it , and not otherwise . the third point was , whether ratcliff hath brought his proper action . the words of the act of e. . cap. . which giveth the monstrans de droit , are to be considered : a remitter is within the words of the act. divers errors were assigned by the other side for matter of form. . because the venire facias want these words ( tam milites quam alios . ) sheffield being a noble man , and a peer of the realm , it appeareth by the register . that the same was the ancient form in every common persons case ; but of late that form was left . . admit that it were a good exception , then it ought to have been taken by way of challenge , as it appeareth . e. . challenge . dyer . . . the statute of . h. . cap. . makes a new law , and prescribes a form. precipimus , &c. quod venire facias coram , &c. liberos & legales homines , &c. and then if it ought to be by the register ( tam milites quam alios ) yet here is a new statute against it : and by the statute of . e. . cap. . this statute of h. . is made perpetual . and by the statute of . eliz. cap. . the statute of . h. . is altered in parvo , and augmented in the worth of the jurors : and by the statute of . eliz. cap. . it is enacted , that after verdict , &c. the judgment thereupon shall not be stayed or reversed by reason of any default in form , or lack of form , or variance from the register . the second error assigned was , because that there are two venire facias , and two distringas , after that issue was joyned . the lord sheffield sueth unto the king to have the first venire facias , and first distringas quashed , and it was quashed with ratcliff's consent . secondly , admit there were two venire facias , yet it ought to be intended that the proceedings was but upon one of them , and that the best : m. . jacobi , in the common pleas , bowen and jones's case : in error upon a recovery in debt , there were two originals certified , and there the one was good , and the other naught ; the judges did take it that the judgment and proceedings were upon the good original , and the judgment was affirmed in the kings bench : m. h. . rott . . the same case . two originals , one bearing date after the judgment , the other before the judgment : and upon a writ of error brought , the judgement was affirmed , for by intendment the judgment was given upon the first original , which bore date before the iudgment . another error was assigned , because the plea was , that such a one was seised of the castle and mannor of mulgrave predictis in the plural number : i answer , that there is not any colour for that error , for the word ( predictis ) doth shew that the mannor and castle are not one and the same thing : so upon the whole matter , i pray that the iudgment given in the court of pleas may be affirmed . sir henry yelverton argued for the lord sheffield , that the iudgment might be reversed . there are three things considerable in the case : first , if any right of the ancient estate tail was in francis bigot who was attainted , at the time of his attainder : secondly , admit that there was an ancient right , if it might be forfeited being a right coupled with a possession , and not a right in gross : thirdly , whether such a possession discend to francis bigot , that he shall be remitted , and if this remitter be not overreached by the office. first , if by the feoffment of francis bigot , . h. . when he was cestuy que use , and by the livery the right of the ancient entail be destroyed ; and i conceive it is not , but that the same continues , and is not gone by the livery and seisin made : there is a difference , when cestuy que use makes a feoffment before the statute of r : . and when cestuy que use makes a feoffment after the said statute of r : ▪ for , before the statute hee gives away all , com . but after the statute of r. . cestuy que use by his feoffment gives away no right . in h. , . is our very case almost ; for , there the tenant in tail made a feoffment unto the use of his will ( so in our case , ) and thereby did declare that it should be for the payment of his debts , and afterwards to the use of himself and the heirs of his body , and died ; the heir entred before the debts paid ( but in our case he entred after the debts paid ) there it is said that the feoffment is made as by cestuy que use at the common law , for his entrie was not lawfull before the debts paid . but when francis bigot made a feoffment h. . he was cestuy que use in fee , and then is the right of the estate tail saved by the statute of . r. . and by the statute of . r. . he gives the land as servant , and not as owner of the land , and so gives nothing but a possession , and no right . h. . . cestuy que use since the statute of r. . is but as a servant , or as an executor to make a feoffment . and if an executor maketh a feoffment by force of the will of the testator , he passeth nothing of his own right , but only as an executor or servant : h. . . proves that cestuy que use since the statute of r. hath but only an authority to make a feoffment , for cestuy que use cannot make a letter of attorney to make livery for him , for he hath but a bare authority , which cannot be transferred to another : cestuy que use hath a rent out of land , and by force of the statute of r. . he maketh a feoffment of the land , yet the rent doth remain to him , for he giveth but a bare possession : so in our case , the right of the estate tail doth remain in francis bigot , notwithstanding his feoffment as cestuy que use by the statute of r. . if cestuy que use by force of the statute of r. . maketh a feoffment without warranty , the vouchee shall not vouch by force of that warranty ; for as fitzherbert saith , cestuy que use had no possession before the statute of . h. . cap. . h. . . if feoffees to use make a letter of attorney to cestuy que use to make a feoffment , he giveth nothing but as a servant . the consequent of this point is , that the right of the old estate tail was in francis bigot at the time of his attainder , and was not gone by the feoffment made h. . the second point is , whether a right mixt with a possession of francis bigot might be forfeited by the statutes of . h. . and the private act of . h. . the statute of . h. . doth not save this right no more then the statute of . h. . for they are all one in words . i say that he hath such a right as may be lost and forfeited by the words of the statute of . h. . cap. . for that statute giveth three things . first , it gives the forfeiture of lands , and not of estates . secondly , how long doth that statute give the lands to the king ? for ever , viz. to the king his heirs and successors . thirdly , it gives the lands of any estate of inheritance , in use or possession , by any right , title or means . this estate tail is an estate of inheritance , which he hath by the right , by the title , and by the means of coming to the right it is forfeited . these two statutes were made for the punishment of the child , for the common law was strict enough against the father , viz. he who committed the treason ; and shall the same law which was made to punish the child , be undermined to help the child ? the ancient right shall be displaced from the land , rather then it shall be taken from the crown , which is to remain to the crown for ever . and this statute of h. . was made pro bono● publico , and it was the best law that ever was to preserve the king and his successors from treason , for it is as it were a hedg about the king ; for before this statute , tenant in tail had no regard to commit treason , for he forfeited his lands but during his own life , and then the lands went to the issue in tail : but this statute doth punish the child for the fathers offence , and so maketh men more careful not to offend , least their posterity may beg . i take two grounds which are frequent in our law : first , that the king is favoured in the exposition of any statute . com. , . the second , that upon the construction of any statute , nothing shall be taken by equity against the king. com. , . here in this case although the right were not in possession , yet it was mixed with the possession , from anno . e. . untill . h. . tenant in tail feared not to commit treason , for the statute of west . . did preserve the estate tail , so as the father could not prejudice his issue per factum suum : and therefore the commonwealth considering that a wicked man did not care what became of himself , so as his issue might be safe , provided this statute of . h. . cap. . although the statute of . r. . cap. . which giveth the premunire , doth enact that all lands and tenements of one attainted in a premunire shall be forfeited to the king : yet tenant in tail in such case did not forfeit his lands : c. . part . . b. as the statute of west . . cap. . saith in particular words , that tenant in tail shall not prejudice his issue ; therefore the statute of . h. . in particular words saith , that tenant in tail shall forfeit his lands for treason . the right of francis bigot is not a right in gross , but a right mixed with a possession . the statute of west . . cap. . brought with it many mischiefs ; for by that statute , the ancestor being tenant in tail , could not redeem himself out of prison , nor help his wife , nor his younger children ; and that mischief continued untill . e. . taltaram's case , and then the judges found a means to avoid those mischiefs by a common recovery ; and this invention of a common recovery was a great help to the subject . then came the statute of . h. . cap. . which enacted , that fines levied by tenant in tail , should be a good barr to the issue of any estate , any way entailed . if the son , issue in tail , levieth a fine in the life of his father who is tenant in tail , it shall be a barr to him who levieth the fine , and to his issues ▪ and both these , viz. the common recovery , and the said statute did help the purchaser ; and shall not this statute of . h. . help the king ? the statute of . h. . cap. . hath not any strength against the ancestor , but against the child . for the construction of statutes i take three rules ; first , when a case hapneth which is not within the letter , then it is within the intent and equity of the statute , com. . . secondly , all things which may be taken within the mischief of the statute , shall be taken within the equity of the statute . h. . . per martin . thirdly , when any thing is provided for by a statute , every thing within the same mischief is within the same statute , . h. . . the estate tail of francis● bigot and katharine his wife is forfeited by the statute of h. . there is a difference when the statute doth fix the forfeiture upon the person , as where it is enacted that j. s. shall forfeit his lands which he had at the time of his attaindor ; the judges ought expound that statute only to j. s. but the statute of h. . doth not fix the forfeiture upon the person , but upon the land it self : and exposition of statutes ought to extend to all the mischiefs . eliz. sir ralph sadler's case in b. r. where an act of parliament did enact , that all the lands of sadler should be forfeited to the king , of whomsoever they were holden : sadler held some lands of the king ; in that case the king had that land by escheat by the common-law , and not by the said statute . com. , the law shall say , that all the rights of the tail are joyned together to strengthen the estate of the king. tenant in tail , before the statute of e. . cap. . of chauntries , gave lands to superstitious uses , which were enjoyed five years before the said statute of e. . made ; yet it was adjudged that the right of the issue was not saved , but that the land was given to the crown ; for the issue is excluded by the saving in the said statute . if tenant in tail give the lands to charitable uses ; the issue is barred , for the saving of the statute of eliz. cap. . excludes him , and he is bound by the statute of donis . so the statute of h. . cap. . and the private act of h. . do save to all but the heirs of the offenders . the third objection was , that ratcliffe was not excluded by the saving ; for it was said , that the same doth not extend but to that which is forfeited by his ancestors body : and here ratcliffe had but a right , and that was saved ; and the statute doth not give rights . i answer , first , the statute of h. . is not to be expounded by the letter , for then nothing should be forfeited but that only which he had in possession and use . tenant in tail is disseised and attainted for treason : by the words of the said statute of h. . he forfeits nothing , yet the issue in tail shall forfeit the lands ; for the issue in tail hath a right of entrie which may be forfeited , h. . . a right of entrie may escheat , and then it may be forfeited . secondly , the statute is not to be construed to the possession ; but if he hath a mixt right with the possession , it is forfeited , but a right in grosse is not forfeited . tenant in tail of a rent or seignorie purchaseth the tenancie or the land out of which the rent is issuing , and is attainted ; he shall forfeit the seignorie and rent , or the land , for the king shall have the land for ever , and then the seignorie or rent shall be discharged , for otherwise the king should not have the land for ever ; for the king cannot hold of any lord a seignorie , h. . . the heir of tenant in tail shall be in ward for a meanaltie descended unto him , the meanaltie not being in esse ; and yet it shall be said to be in esse , because of the king , c. part . cars case : although the rent was extinguished , yet as to the king it shall be in esse . the difference is betwixt a right clothed with a possession , and a right in grosse , viz. where the right is severed from the possession , there it is in grosse , for there the right lieth only in action ; and therefore neither by the statute of h. . nor by the private act of h. . such a right is not forfeited , c. . part . c. . part , . right of action by the common-law nor by statute-law shall escheat , and therefore it is not forfeited : for no right of action is forfeitable , because the right is in one , and the possession in another . perkins . a right per se cannot be charged . h. . . by mountague , a man cannot give a right by a fine , unless it be to him who hath the possession ; c. . part lampits case ; sever the possibility from the right , and it doth not lie in grant or forfeiture ; but unite them ( as they are in our case ) and then the right may be granted or forfeited , for that right clothed with a possession may be forfeited . a right clothed with the possession , . it tastes of the possession , . it waits upon the possession , . it changes the possession . the bishop of durham hath all forfeitures for treason by the common-law within his diocess , viz. the bishoprick of durham : and if tenant in tail within the bishoprick commits treason and dyeth , the issue in tail shall enjoy the land against the bishop , dyer a. pl. . for the bishop hath not the land for ever , but the issue in tail may have a formedon against the bishop : but in our case it is otherwise : tenant in tail maketh a feoffment , and takes back an estate unto himself in tail , the remainder in fee to his right heirs ; the bishop in such case shall not have the land forfeited for treason , because that the bishop cannot have the estate tail ; but in such case the king shall have the land by the statute of h. . cap. . and the bishop in such case shall not have the fee , because it is one estate , and the king shall not wait upon the subject , viz the bishop . the right waits upon the possession : for h. . . if the son and a stranger disseiseth the father , and the father dyeth , this right infuseth it self into the possession , and changeth the possession , and it is a release in fact by the father to the son , h. . . br ' droit . a disseisor dyeth seised , and his heir enters and is disseised by a. the first disseisee doth release unto a. all his right ; all the right is now in the second disseisor , viz. a. because the right and the possession meet together in a. e. . . b. tenant in tail makes a lease for life with warranty : if tenant for life be impleaded by the heir to whom the warranty doth discend , he shall rebut the right in tail being annexed with the possession , for that is in case of a saving of the land by that right : but where one demands land , there all the right ought to be shewed . h. . if a man be to bring an action to recover , then he ought to make a good title by his best right , if he hath many rights : but if a man be in possession , and an action be brought against him , then he may defend himself by any of his rights , or by all his rights . h. . . tenant in tail maketh a feoffment to his use upon condition , and afterwards upon his recognisance the land is extended , and afterwards the condition is performed , yet the interest of the conusee shall not be avoided ; for although the extent come upon the fee , and not upon the tail , yet when the extent was , it was extracted out of all the rights . c. . part . a tenant in tail makes a lease for life , now he hath gained a new fee by wrong ; and afterwards he makes a lease for years , and tenant for life dyeth ; he shall not avoid his lease for years , although he be in of another estate , because he had a defeicible title and an ancient right , the which if they were in several hands shall be good , as the lease of the one , and the confirmation of the other ; and being in one hand , it shall be as much in law as a saving of the right . in our case , the right and possession both were in francis bigot ; and ratcliffe is entitled to the old estate tail , and to the new also . there is a difference betwixt him who claims the land so forfeited to the king ; and the heir of the body of the person attainted : litt● . land is given to a and the issue males of his body , the remainder to the heirs females of his body : if the father commit treason , both heir male and female are barred , for they both claim by the father ; but if the heir male after the death of his father be attainted of treason , the king shall have the lands as long as he hath issue male of his body , and then the heir female shall have the lands , for she shall not forfeit them , because she claimeth not by the brother , but by the father . com. in manxels case , a man hath three several rights of estate tails , and comes in as vouchee ; if the recovery pass , it shall bar all his rights for one recompence , and they shall be all bound by one possession . there is a difference where the kings title is by conveyance of the party , and where for forfeiture for treason by this statute of h. . cap. . v. the abbot of colchesters case : the abbot seised in the right of his house , did commit treason , and made a lease for years , and then surrendred his house to the king after the statute of h. . the question was whether the king should avoid the lease : it was adjudged , that the king was in by the surrender , and should not avoid the lease , and not by the statute of h. . but if the king had had it by force of the statute , then the king should have avoided the lease . com. . tenant in tail , the reversion to the king : tenant in tail maketh a lease for years , and is attainted of treason ; the king shall avoid the lease upon the construction of the statute of h. . which gives the lands unto the king for ever . the third point is upon the remitter . this point had been argued by way of admittance : for as i have argued ▪ the ancient right is given away unto the king ; and then there is no ancient right , and so no remitter . there is a difference where the issue in tail is forced to make a title , and where not : in point of defence he is not so precisely forced to make his title , as he is in case of demand . whereas the defendant demands the lands from the king , the discent will not help him , because the attaindor of the ancestor of ratcliffe hinders him in point of title to make a demand , dyer b. in this case he ought to make himself heir of the body of francis bigot and katharine . c. . part . c. . part , . there cook couples the case of fine levied , and the case of attaindor together . c. . part . land is given to husband and wife , and to the heirs of their two bodies : the husband alone levies a fine with proclamations , or is attainted of treason and dyeth : the wife before entry dyeth : the issue is barred ; and the conusee , or king hath right unto the land , because the issue cannot claim as heir to them both , viz. father and mother , for by the father he is barred . h. . , . c. . part . husband and wife tenants in tail ; if one of them be attainted of treason ( as it was in our case ) the lands shall not discend to the issue , because he cannot make title . and there cook puts the case , that if lands be given to an alien and his wife , they have a good estate tail , and yet it is not discendable to the issue . the consequence then of all this is , that if ratcliffe cannot take advantage of the discent by reason of the disability by attaindor , à fortiori he shall not be remitted : and yet i confess that in some cases one may be remitted against the king , com. , , . but that is where the king is in by matter of law by conveyance ; but in this case the king is in by an act of parliament , and there shall be no remitter against a matter of record . another reason is , because that the possession is bound by the judgment of attaindor and the act of parliament . h. . . h. . . h. . . a discent of land shall not make a title against the king or any other who hath the land by an act of parliament . but then in our case , if there should be a remitter , yet the same is overreached by the office. 〈◊〉 - part . before the statute of h. . cap. . there ought to have been an office found in the case of attaindor of treason , br. cases . brook office devant , &c. . i do not mean an office of intitling , but an office declaratory of a conspicuous title . c. . part . there are two manner of offices ; one which vesteth the estate and possession of the land &c. in the king ; another which is an office of instruction ; and that is when the estate of the land is lawfully in the king , but the particularity thereof doth not appear upon record : and the office of instruction shall relate to the time of the attaindor , not to make queen elizabeth in our case in by discent , but to avoid all me●ne incombrances ; and is not this remitter an incombrance ? and for that purpose the office shall relate : for in things of continuance nullum tempus occurrit regi , c. . part . for so the rule of nullum tempus &c. is to be understood of a thing of continuance , and not a thing unica vice , v. fitz. entre congeable , . trav. . where it is said , where the king hath cause to seise for the forfeiture of tenant for life , if the tenant for life dyeth , the reversion may enter ; for in that case tempus occurrit regi , and the king cannot seize after the death of the tenant for life . h. . . there is no discent against the king ▪ and if there be no discent , then there is no remitter . the consequence of all this is , that the office doth relate to the right , and that the monstrans de droit doth not lie : and the want of office found for all this time , was the fault of the kings officers , and shall not prejudice the king. but if the office should not relate , then the monstrans de droit would lie , because then the king was in but by one single matter of record . we shew in the office , eliz. that there issued forth a commission directed to certain of the privy-councel to enquire of the treason ; and if francis bigot upon the treason were indicted . and in our case we shew immediately another commission was directed to the lord chancellor and the two chief justices &c. to arraign francis bigot . and all that is confessed by ratcliffe himself , viz. modo & forma . and therefore the objection which glanvile made was frivolous , viz. that it did not appear that francis bigot was attainted by verdict , by confession , or by outlawry . and so he concluded , that for these causes the judgment given in the court of common-pleas ought to be reversed . george crook argued for ratcliffe , and he prayed that the judgment might be affirmed . i will argue only these points following . . that francis bigot had not so much as a right of action at the time of his attaindor , for he had not any right at all . . admit that he had a right of action , if this right of action be given to the king by the said statutes of & h. . it was objected , that the right being clothed with a possession , that the same is given to the king : but i will prove the contrary . . when francis bigot being tenant in tail , and being attainted and executed for treason , and then katherine his wife dyeth being one of the donees in tail , h. . and the lands discend to ratcliff , if the office afterwards found shall relate to take away the remitter . i say it doth not , but that his remitter doth remain to maintain his monstrans de droit , and he is not put to his petition . the chief point is , what right francis bigot had at the time of his attaindor . . when ralph bigot being tenant in tail , h. . made a feoffment in fee , what right remained in francis his son ? the right is in abeyance , viz. in nubibus , that is in custodia legis : and then francis bigot had no right of that entail h. . when he made the feoffment . com. . there jus is divided , viz. jus recuperandi , jus in randi , jus habendi , jus retinendi , jus percipiendi , jus possedendi ; but here francis bigot had not any of these rights . com. . if the discontinuee of tenant in tail levieth a fine with proclamations , and five years passe , and tenant in tail dyeth , the issue in ▪ tail shall have other five years , because he is the first to the right . h. . . c. . part . if donee in tail maketh a feoffment in fee , in rei veritate the donee hath not jus in re , neque ad rem . c. . part . litt. . there it appeareth that the right to an estate tail may be in abeyance . com. . walsinghams case : there the king gave land in tail to wyat , who made a feoffment unto walsingham ; afterwards wyat was attainted of treason , and there the estate tail of wyat was forfeited ; but the cause there was , because that the reversion was in the crown , and so no discontinuance by his feoffment , because that the reversion was in the crown . in our case , no right of the estate tail was in francis bigot after the feoffment unto his own use , but the right is in abeyance . it was objected , that the writ of formedon is discendit jus , and the monstrans de droit was so : i answer ▪ it is so in point of form in the writ , but not in substance . c. . part . tenant in tail makes a lease for life , and tenant for life dyeth : now he hath an ancient right , and the donor may avow upon the tenant in tail notwithstanding his feoffment , but that is by reason of privity , and not by reason of any right he hath . jus recuperandi did discend to the issue in tail , viz. francis bigot , h. . he who hath a right of action giveth the same away by his livery and feoffment , as appeareth by the cases put in c. . part . it was objected , that cestuy que use was an attorney or servant , therefore he doth not passe his own right , for he cannot make an attorney to make livery ; and h. . . was cited to be adjudged so : but it is adjudged to the contrary , m. h. . in the kings bench , rot . . betwixt the bishop of london and kellet , as it appeareth in dyer . and bendloe's reports , and c. . part . for there it is expresse , that cestuy que use may make a letter of attorney to make livery ; which proves that he makes not the feoffment as a servant , but as owner of the land. it was objected , that cuesty que use was as an executor : but that i deny . e. a. persay : executors cannot make a feoffment , but they ought to make a sale ; and the vendee , viz. the bargainee is in without livery and seisin : but if they do make a feoffment by the livery , all their right is given away : but if an attorney giveth livery in the name of his master , nothing of his own right to the same land is given away by the livery and seisin ; but if he maketh livery in his own name , then he giveth away his own right ; and the statute of r. . cap. . maketh the feoffment good which is made by cestuy que use against him and his heirs . c. . pt . . by livery and seisin his whole right is given away . com. . the feoffees of cestuy que use are disseised ; the disseisor enfeoffeth cestuy que use , who enfeoffs a stranger . and the question was , if by this feoffment made by cestuy que use the right of the first feoffees were determined and extinct . fitzherbert held that the right was gone ; and in that case the uses were raised after r. . and before h. . cap. . although yelverton held that it was meant of a feoffment before the statute of r. . jus recuperandi was in francis bigot . then the question is , whether this right were given away by the statutes of & h. . the statute of h. . & h. . are several and distinct statutes : the words of the statute of h. . are , that the party offending shall forfeit all his possession and vse ; but there is no word of right in the statute ; and that statute doth not extend to give any land but that which was in possession or use : and the cause was , because before that statute of h. . uses were not given unto the king for attaindor for treason , they being but a trust and confidence . c. . part b. the statute sayes , by any wayes , title , or means : but observe when this statute was made ; it is a penal statute , and therefore shall be taken strictly , stamford b. c. . part b. the statute of & e. . takes away clergy ; but if a stranger be in the house by licence of the owner , the party shall have his clergy , because out of the words , and being a penal law , it shall be taken strictly . the statute of h. . cap. . forfeits for treason right to the land , viz. right of entry ; but the statute of h . giveth not any right . before the statute of h. . a right of entry was not given to the king for treason ; à fortiori a right of action was not forfeited to the king. it is the statute of h. . the private act which hurteth us , which expresly gave rights : but this right in our case is not forfeited by this statute , which giveth rights which a man hath ; but in our case francis bigot had not the right , but the right was in abeyance . statutes in points of forfeiture forfeit no more then a man hath : but yet a statute may give to the king that which a man hath not . c. . part . the statute of monasteries gave that to the king which was not , viz. monasteries in reputation , saving to none but strangers , no not to the donors . hussies case : tenant in tail doth bargain and sell to the king ; and a statute gave it to the king , saving to strangers ; but neither the donor nor his issue were within the saving . old entries , . b , c , d. it was enacted , that the duke of suffolk should forfeit for treason all his lands , rights , and tenements , and all such rights and titles of entry which he had : but thereby rights of action were not given to the king , but only rights of entries . the statutes of & h. . are alike in words : if tenant in tail , the remainder over , forfeit &c. the remainder is saved without words of saving : but if the statute giveth the land by name unto the king , then the remainder is not saved , but is destroyed . if a right of action be given unto the king , the statutes of limitation and fines are destroyed , for he is not bound by them . c. , . in point of forfeiture , stamf. , . there is a difference betwixt real and personal rights given to the king. c. . part . a right of action concerning inheritances are not forfeited by attaindor , &c. but obligations , statutes &c. are forfeited by attaindor . c. . part . a right of action is not given to the king by general words of an act , because it lieth in privity , and it would be a vexation to the subject if they should be given . c. . pt . . although that a non compos mentis cannot commit felony ; yet he may commit treason ; for the king is caput & salus reipublicae . if non compos mentis maketh a feoffment , and then committeth treason , the king shall not have an action to recover the land of the non compos mentis , as the party himself may have : but if non compos mentis be disseised , and then be attainted of treason , then the king may enter into the lands , because the party himself had a right of entry which is given to the king. it was objected , that a right of action clothed with a possession might be given to the king. tenant in tail discontinues , and takes back an estate , and is attainted of treason : this right of action shall not be forfeited to the king , for his right of action was to the estate tail . in our case the right of action was to katherine , for she was tenant for life . the attaindor was h . and the act which forfeited the right was made h. . and then the right and possession were divided . h. . grants . the king may grant the temporalties of a bishop before they happen to be void , and so he may grant a ward : but the king cannot grant the lands of j. s. when he shall be attainted of treason ; for the law doth not presume that j. s. will commit treason . the devise of a term , the remainder over is good : but if the devise be of a term to one in tail , the remainder over , the remainder is void , because the law doth presume that an estate in tail may continue for ever . c. . part , . the law did not presume that digby at the time of the conveyance intended to commit treason . it was objected , that whatsoever may be granted , may be forfeited : i deny that , c. . part . by lumley's case : if the issue in tail in the life of his father be attainted of high treason and dyeth , it is no forfeiture of the estate tail : but if the issue in tail levieth a fine in the life of his father , it is a bar to his issues . c. . part . sir george brown's case , e. . . there executors may give away the goods of the testator , but they cannot forfeit the goods of their testator . com. . osborns case , guardian in soccage may grant the ward , but he cannot forfeit him . c. . part . right of actions reals , because they are in privity by general words of a statute , are not given to the king , v. dyer . string fellow's case : that which is in custodia legis cannot be taken as a distress in a pound overt , cannot be taken out of the pound upon another distress . the third point is , if he were remitted ; and i conceive that he was remitted : when tenant in tail is attainted of treason , the issue at the common law should inherit as if he had not been attainted , lit. . c. . part . for as to the estate tail , there was no corruption of blood . c. . part . . if tenant in tail before the statute of . h. . commit treason , the land shall discend to his issue , for the issue doth not claim by the father , but per formam doni● c. . part . such a discent shall take away entrie ; but in our case ratcliff had both possession and right , and therefore is remitted ; the speciall verdict finds that he was remitted , and the judgment given in the court of pleas in the exchequer was , that he was remitted . it was objected , that the remitter was destroyed by the relation of the office ; but the same is not so , for the office relates only to avoid incombrances , viz. acts done by himself : but to devest the freehold , and to settle the same in the king , the office shall not relate : and if it should relate , then the king should lose many lands which he now hath : com. nichols case . tenant for life upon condition to have fee &c. if the office shall relate , then the same takes away the freehold out of the person attainted , à principio . and then the fee cannot accrue ; and so by that means the king should lose the lands . a remitter is no incombrance , for it is an ancient right , and the act of the king cannot do wrong . c. . part . b. ass . . there tenant for life with clause of re-entrie is attainted the reversioner entreth , the office shall not relate to take the freehold out of the reversioner , c. . part . relatio est fictio juris , and shall never prejudice a third person ; and the office found in the life of katherine shal not prejudice him , c. . part , beamounts case ; the husband and wife are tenants in tail , the husband is attainted of treason and dyeth , yet the wife is tenant in tail , when it is not to the damage or prejudice of the king , there tempus occurrit regi : c. . part . baskervile's case . from h. . untill h. . katherine ; and afterwards ratcliff had the possession ; and then the law was taken to be , that ratcliff had a lawfull possession . for these reasons he concluded , that the judgment ought to be affirmed . in trinity term following , viz. trin. . jacobi regis , the case was argued again : and then coventry the kings attorney general , argued for the lord sheffield , that the judgment given in the court of pleas in the exchequer , ought to be reversed . he said , i will insist only upon the right of the case , whether upon the right of the case ratcliff may maintain a monstrans de droit . first , if by the attainder , the right of the old estate tail , as well as of the new estate tail be forfeited : secondly , admitting that the old right of entail be not forfeited , then if the office do overreach the remitter , for then a monstrans de droit doth not lie , but a petition for the reason of the discontinuance : first it is evident , that when ralph bigot tenant in tail in possession h. . made ▪ a feoffment , that that was a discontinuance , and it is as clear that the right of the old estate tail vested in francis bigot . the feoffment made by francis bigot , h. . did not devest the right of the old tail : first for the weaknesse of the feoffment ; secondly for the inseparableness of the estate tail , which is incommunicable , and not to be displaced by weak assurance . that feoffment was made according to the statute of r. . and not by the common law , but only by force of the said statute . the feoffment is without deed , and so nothing passeth but only by way of livery , or else nothing at all . also at the time of the feoffment in h. . the feoffees were in seisin of the lands ; and ratcliff shews in his monstrans de droit , that francis bigot did disseise the feoffees , and so the feoffment had no force as a feoffment at the common law , but only by the statute of r. . for at the common-law , if cestuy que use had entred upon the feoffees , and made a feoffment , nothing had passed . there is a difference betwixt a feoffment at the common law , and a feoffment according to the statute of r. . which operates sub modo feoffments are the ancient conveyances of lands , but feoffments according to the statute of r. . are upstarts and have not had continuance above years . in case of feoffments at the common law , the feoffor ought to be seised of the lands at the time of the feoffment ; but if a feoffment be according to the statute of r. . in such case the feoffor needeth not be in possession : feoffments at the common law give away both estates and rights ; but feoffments by the statute of r. , give the estates , but not the rights . in case of feoffment at the common law , the feoffee is in the per , viz. by the feoffor ; but in case of feoffments by the statute of r. . the feoffees are in in the post , viz by the first feoffees , h. . brudnel says , that a feoffment by cestuy que use by the statute of r. , is like to fire out of a flint , so as all the fire which cometh out of the flint will not fasten upon any thing but tinder or gunpowder : so a feoffment by cestuy que use by force of the statute of r. , will not fasten upon any thing but what the statute requires , h. . . h. . . h. , . h. . . . by these books it appeareth , that if cestuy que use maketh a leafe for life , during the lease he gaines nothing , and after the lease he gains no reversion ; for the lessee shall hold of the feoffees , and of them he shall have aid , and unless it be by deed indented , in such a case a reservation of rent is void , and the lessor in such a case cannot punish the lessee for waste ; for he makes the lease meerly by the power which the statute gives him . . h. . . cestuy que use makes the feoffment as servant to the feoffees , and if not as servant to the feoffees , yet at least as servant to the statute of r. . if a man entreth upon another , and maketh a lease for life , he gains a reversion to himself , and shall maintain an action of waste ; but cestuy que use , when he entreth and maketh a lease , he hath no reversion , nor shall punish waste . and as it is in the creation , so is it in the continuance , h. . . if cestuy que use for life or in tail maketh a lease for life , it is warranted during his own life , by the statute of r. . but if tenant for life at the common law , maketh a feoffment , or a lease for life : there the first lessor ought to avoid this forfeiture by entrie , and it is not void by the death of the second lessor , viz. the tenant for life , h. . . a feme covers is cestuy que use , the husband maketh a feoffment and dieth , the feoffment is void by his death : br. feoffments to uses . if cestuy que use for life levieth a fine , it is no forfeiture , but good by the statute of r. . during his own life . and if in such case proclamations pass , there needeth no claim nor entrie within five years ; but the law is contrarie of tenant for life by the common law : for if tenant for life at the common law levieth a fine , it is a forfeiture . dyer . cestuy que use for life or in tail , maketh a lease for life , the lease is determined by the death of cestuy que use , and the lessee is become tenant at sufferance ; but a lease for life by tenant for life at the common law , is not determined by the death of lessee for life who was lessor , and his tenant is tenant for life , and not at sufferance , as in the case before , and the first lessor ought to avoid it by entrie . br. feoffments to uses . a recovery by cestuy que use in tail or in fee , is ended by his death . by these cases appears a main difference betwixt the validitie of a feoffment by cestuy que use , and the feoffment at the common law : the statute of h. . of uses , doth not execute uses which are in abeyance , c. . part , chudleigh's case h. . by the common law , the devise to an enfant in ventre samier is good but by the statutes of , and h. . of wills such a devise is not good , for the statute law doth not provide for the putting of lands in abeyance . by the statute of r. . all feoffments and releases , &c. shall be good and effectual to those to whom they are made to their uses . and this feoffment in our case , was not made to a man in nubibus . cestuy que use by this statute of r. . makes a lease for years , the remainder over to the right heirs of i. s. the remainder is not good , for the statute doth not put it in abeyance , for the remainder ought to be limited to one in esse . h. . cap. . giveth power to executors to sell : that executor who proveth the will , shall sell , and when he selleth , if he have any right to the land , the right of the said executor is not gone by that statute . so if commissioners upon the statute of bankrupts , sell the lands of the bankrupt , and one of the commissioners hath right to the land so sold , his right is not extinct : and so in this case the statute limits what shall pass . upon the statute of ● eliz. cap. . which makes the lands of receivers liable for their debts , if the king selleth , the right of the accomptant passeth , but not the kings right e. . . an abbot having occasion to go beyond the seas , made another abbot his procurator , to present to such benefices which became void in his absence . that abbot presents in the name of him who made him procurator , to one of his own advowsons , the right of his own advowson doth not pass ; but yet it is an usurpation of the abbot which went beyond sea , to that church . what is the nature of this right ? all rights are not gi●en away by feoffments at the common law , lit. . land is given unto husband and wife in tail , the husband maketh a feoffment , and takes back an estate to him and his wife , both of them are remitted . which case proveth that the husband hath left in himself a right notwithstanding the feoffment . e. . . ass . . john at lee's case . so at the common law a feoffment doth not give away all the right ; this right doth stick so fast in the issue , as the statute of west . . cap. . can back it unto him . e. . . e. . . at the common law , if tenant in tail had offered to levie a fine , the judges ought not to receive it , but ought to have refused it , if it had appeared unto them that the conusor was tenant in tail : the same was before the statute of h. . which gave power to tenant in tail to levie a fine ; for the statute of west . . cap. . saies , quod finis sit nullus . . e. . age . e. . . e. . . e . . if donee in tail levie●h a fine , yet there is no remedie against his tenant , for he shall not be compelled to attorn , for that the right is in the donor . ● e. . avowry . e. . . avowry was made upon the donee in tail , notwithstanding that he made a feoffment : and avowry is in the realtie and right . e. . . h. . . h. . . in a replevin , ancient demesne is a good plea , because the avowry is in the realtie : the donor shall know for homage upon the donee , after that the donee hath made a feoffment . e. . . the donee shall do homage . and litt. . saith , that none shall do homage , but such as is seised in his own right , or in the right of another . e. . avowry . e . . e. . gard. . the issue shall be in ward notwithstanding a feoffment by tenant in tail , com. . tenant in tail maketh a feoffment , yet the right of the tail doth remain in the tenant in tail . h. . . tenant in tail of a rent , grants the same in fee ; if an ancestor collateral releaseth with warranty , the same bindeth the tenant in tail . there is a common rule , that a warranty doth not bind when a man hath not a right : the cases cited in c. . part , albonies case , where feoffments give rights , i agree . barton and ewers case , a man made a feoffment of land , of which he had cause to have a writ of error , he gave away his writ of error by the feoffment ; i agree all those cases , for that is in cases of feoffments at the common law ; but in our case the feoffment is by the statute of r. . in our case there is jus habendi , possedendi , & recuperandi : it is like unto a plant in winter , which seemeth to be dead , yet there is in it anima vegitativa , which in due time brings forth fruit : so the right in our case is not given away , nor is it in abeyance , but in francis bigot , which may be regained in due time . dyer . there was scintilla juris , as here in our case . h. . . where tenant in tail maketh a feoffment , and the feoffee levieth a fine , and five years pass , there it is said that the issue in tail shall have five years after the death of tenant in tail who made the feoffment ; and the reason is , because he is the first to whom the right doth discend . this case was objected against me : yet i answer , that tenant in tail in that case hath right , but he cannot claim it by reason of his own feoffment ; he cannot say he hath right , but another may say he hath right . in our case francis bigot cannot say he hath a right in him , but another may say he hath a right . it is like where tenant in fee taketh a lease for years by deed indented of his own lands ; he , during the years cannot say that he hath fee , yet all other may say that he hath the fee. c. . part . the king shall avoid the feoffment for the benefit of a lunatique , which feoffment the lunatique had made ; and shall not the king avoid a feoffment which a lunatique hath made , for his own benefit , viz for the benefit of the king himself ? i conceive that he shall . secondly , admit the right be in the person , viz. in francis bigot ; yet they object that it is a right of action , and so not forfeited . if this right be in the person at the time of the attainder , it shall be forfeited ; if it be not in his person , but in nubibus , yet it shall be forfeited . tenant in tail makes a feoffment unto the use of himself and his wife in tail ▪ if the old right of entail rest , or not , in his person , it is forfeited to the king. eliz. this very point was then adjudged , where tenant in tail before the statute of h. . of uses , made a feoffment unto the use of himself and his wife in tail . it was resolved upon mature deliberation by all the judges of england , that the old estate tail was in such case forfeited for treason . set this judgment aside , yet it rests upon the statute of h. . a general act for forfeiture for treason , and the particular act of h. . which was made for the particular attaindor of francis bigot . i will argue argue only upon the statute h. . which hath three clauses . first , to take away sanctuary ; secondly , to provide that no treason be committed , and the offender punished ; the third , which clause i am to deal with , which giveth the forfeiture of lands of inheritance , &c these three clauses do depend upon the preamble . it was high time to make this statute : for when h. . excluded the pope , he was to stand upon his guard : and that year of h. . there were five several insurrections against the king , therefore it was great wisdom to bridle such persons : king ed. . and queen mary repealed divers statutes for treason and felony , yet left this statute of h. . to stand in force . anno e. . cap. . this statute of h. . somewhat too strict was in part repealed , viz. that the church lands should not be forfeited for the treason of the parson . this third branch doth insist upon a purview , a●d a saving , and both agree with the preamble : the purview is ample ; every offender , and offenders of any manner of high treason , shall forfeit and lose , &c. i observe these two words in the statute , shall ( forfeit ) those things which are forfeitable , and ( lose ) those things which are not forfeitable . but it shall be lost , that the heir of the offender shall not find it , shall forfeit and l●se to the king his heirs and successors for ever , so it is a perpetual forfeiture ; shall forfeit all his lands , which includes , use , estate and right , by any right , title or means : so you have estate , right , title and use . here francis bigot shal forfeit the castle and mannor of mulgrave unto the king , his heirs and successors , and he must forfeit the land , right ▪ title and use , otherwise it cannot be to the king for ever ; and what is saved to strangers , all shall be saved ; and what will you not save to the offender and his heirs , all his lands , right , &c. as was saved to strangers . it was objected , that it was not an act of assurance , but an act of forfeiture , which is not so strong as an act of assurance . i do not doubt of the difference ; but how much will that difference make to this case ? doth the statute goe by way of escheat ? it doth not ; but in case of petty treason land shall escheat ; but when the statute of e. . speaketh of high treason , the words of the said statute are , shall forfeit the escheat to the king : but is the right devided from the king ? truely no ; the word ( forfeit ) take it in nomine , or in natura , is as strong a word , as any word of assurance . alienare in the statute of west . . cap. . non habeant illi potestatem alienandi ; so non habent illi potestatem forisfaciendi , is in the nature of a gift . com. . forfeiture is a gift in law , et fortior est dispositio legis quam hominis , and so as strong as any assurance of the partie . , if a statute give the land to the king , then there needeth not any office , h. . br. office. com. . the right vests before office. it was objected that the statute of h ▪ . doth not extend to a right of action , but to a right of entrie . the purpose of this act of h. . is not to attaint any particular person , as the statute of h. . was made for the particular attaindor of francis bigot . e. . . cestuy que use at the common law , did not forfeit for felony or treason ; but by this act of . h. . cestuy que use shall forfeit both use and lands , out of the hands of the feoffees . e. . . ass . . the husband seised in the right of his wife at the common law for treason shall not forfeit but the profits of the lands of his wife during his life , and not the freehold it self ; but by this act of h. . the freehold it self is forfeited . eliz. in the common pleas , wyats case , c. . lib. entries . and if the statute of h. . had had no saving , all had been forfeited from the wife . h. . . there it is no forfeiture , yet by this statute it is a forfeiture . a right of action shall not escheat , e , . entre cong . c. part the marquess of winchesters case , and bowti●s case , and c . part . inglefield●s case ▪ a right of action per se shall not be forfeited by the rules of the common law , nor by any statute can a right of action be transferred to another , but by the common law a right of action may be quashed , and exonerated , and discharged in the possession of the king. for it is out of the rule which is in c. , part , for the cause of quieting and repose of the terre-tenants , otherwise it would be a cause of suits ; but all rights , tythes , actions , &c. might for the same reasons , viz. for the quiet of the terre-tenants , and the avoidance of suits and controversies , be released to the terre-tennants . by the same reason here the right of action of francis bigot shall be discharged and exonerated by this forfeiture , viz. for the quiet and repose of the terre-tenants ; for the law delights in the quiet and repose of the terre-tenants . if francis bigot had granted a rent , the ancient right of the tail had been charged . c. . part . where tenant in tail makes a lease for life , and grants a rent charge , and tenant for life dieth , he shall not avoid his charge , although he be in of another estate , because he had a defeisible possession , and an ancient right , the which , &c. so as they could not be severed by way of conveyance and charge , and no lawfull act ; then i admire how he will sever this from himself by his unlawfull act , viz. the feoffment , the discontinuance : lit. . if a man commit treason , he shall forfeit the dower of his wife , yet he doth not give the dower of his wife , but it goes by way of discharge in those lands . h. . . tenant by the curtesie in the life of his wife , cannot grant his estate of tenant by the curtesie to another , but yet he for felony or treason may forfeit it , viz. by way of discharge . a keeper of a park commits treason , there the king shall not have the office of keeper for a forfeiture , because it is an office of trust ; but if he had been keeper of the kings park , and had been attainted , there he should forfeit his office by way of discharge and exoneration . this statute of h. . hath been adjudged to make land to revert , and not strictly to forfeit . austin's case cited in walsingham's case . tenant in tail , the reversion in the king , the tenant makes a lease for years and dies , the issue accepts of the rent , and commits treason , the lease is avoided , for the king is not in by forfeiture by the statute of h. . but by way of reveter by the statute of h. . it was objected , that if tenant in tail maketh a feoffment , and takes back an estate for life , and is attainted of treason , that he shall not forfeit his old right , i agree that case : for indeed it is out of the statute of h. . which speaks of inheritance , and in that case the tenant hath but a freehold . the statute of h ▪ . saith , that it shall be forfeited to the king , his heirs and successors ; and if in our case the old right should remain , then it should be a forfeiture but during the life of the testator . when the common law , or statute law giveth lands , it gives the means to keep them , as the evidences ; so here the king is to have by force of this statute of h. . the evidences . the forfeiture of right is expresly within the statute of h. . as the forfeiture of estate , as by any right , title or means , for the old estate tail is the means of estates since h. . and if you will take away the foundation , the building will fall : for all the estates are drawn out of the old estate tail . the statute of h. . is not an act of attaindor , for none in particular is attainted by the act ; but the act of h. . doth attaint francis bigo● in particular . it was objected , that here in this case there needed not to be any express saving . i answer , that there are divers statutes of forfeitures : yet the statutes have savings in them , so as it seems a saving in such acts were not superfluous , but necessary . the act of h. . for the attainder of queen katharine , there is a saving in the act , and yet an act of forfeiture . dyer . there the land vested in him in the remainder by force of a saving in the act , so the saving is not void , but operative . c. . part dowlies case , vid. the earl of arundels case , there the saving did help the wife , so it appears savings are in acts of parliaments of forfeiture , and acts of attaindor . dyer , . the bishop of durham had jura regalia within his diocese , and then the statute of h. . came : now whether the forfeiture for treason should be taken away from the bishop , by reason of that statute , and given to the king , was the doubt ? it was holden , that of new treasons the bishop should not have the forfeitures , for those were not at the common law , as the forfeitures of tenant in tail ; but that he should have the forfeitures of lands in fee within his diocese ; and that he had by force of the saving in the statute ; so that a saving is necessary and operative . com. nichols's case , there harpers opinion , that there needs no saving to strangers ; but yet a saving is necessary for the partie and the issue , if they have any thing , as well as strangers . vid. c. . part lincoln colledg case . it is the office of a good interpreter , to make all the parts of a statute to stand together . com. . by these general words ( lose and forfeit ) and by excluding of the heir in the saving , the heir is bound ; so the judges have made use of a saving , for it is operative . ma. austin's case cited in walsinghams case . tenant in tail the reversion in the crown : tenant in tail made a lease for years , and levied a fine to the king , the king shall not avoid the lease , for the king came in in the reverter ; but in such case , if he be attainted of treason , then the king shall avoid the lease . so a statute of forfeiture is stronger then a statute of conveyance . by this statute of h. . church land was forfeited , for so i find in the statute of monasteries which excepts such church lands to be forfeited for treason , dyer . cardinal poole being attained , did forfeit his deanary , and yet he was not seised thereof in jure suo proprio , for it was jus ecclesiae . e. . . a writ of right of advowson by a dean , and he counteth that it is jus ecclesiae , and exception that it is not jus suae ecclesiae ; but the exception was disallowed , for the jus is not in his natural capacitie , but in his politique capacitie ; and yet by this statute of h. . such church land was forfeited for treason : this is a stronger case then our case . vide c. . part . beaumont's case : land is given to husband and wife in tail , and the husband is attainted of treason ; the wife is then tenant in tail , yet the land is forfeited against the issue , although it be but a possibility for the whole estate is in the wife ; but the cause thereof is , because it was once coupled with a possession . c. . part , nevils case , there was a question whether an earldom might be entailed and forfeited for treason , which is a thing which he hath not in possession nor use , but is inherent in the blood : and there resolved that the same cannot be forfeited as to be transferred to the king , but it is forfeited by way of discharge and exoneration . eliz. dyer , the bishop of durhams case : there , if it had not been for the saving , the regal jurisdiction of the bishop had been given to the king by the statute of h. . this statute of h. . was made for the dread of the traitor : for the times past saw how dangerous traitors were , who did not regard their lives , so as their lands might discend to their issue ; it was then desperate for the king , prince , and subject ; for the time to come it was worse . the law doth not presume that a man would commit so horrid an act as treason : so it was cited by mr. crook , who cited the case , that the king cannot grant the goods and lands of one when he shall be attainted of treason , because the law doth not presume that he will commit treason : if the law will not presume it , wherefore then were the statutes made against it ? if the land be forfeited by the statute of h. . much stronger is it by the statute of h. . but then admit there were a remitter in the case , yet by the office found the same is defeated : without office the right is in the king , com. . c. . part where it is said , there are two manner of offices , the one which vests the estate and possession of the land &c. in the king , where he had but a right , as in the case of attaindor the right is in the king by the act of parliament , and relates by the office. com. . that an office doth relate . e. . . the king shall have the mean profits . the office found was found in eliz. and the same is to put the king in by the force of the attaindor which was h. . and so the same devests the remitter . tenant in tail levieth a fine , and disseiseth the conusee and dyeth , the issue is remitted , then proclamations pass ; now the fine doth devest the remitter . c. . part tenant in tail suffereth a common recovery , and dyeth before execution ; the issue entreth , and then execution is sued ; the estate tail is devested by the execution ; and so here in our case it is by the office. c. . part . tenant in tail maketh a lease and dyeth ( his wife priviment ensient ) without issue ; the donor entreth , the lease is avoided , afterwards a son is born , the lease is revived . com. . tenant in capite makes a lease for life rendring rent , and for non-payment a re-entry , and dyeth : the rent is behind , the heir entreth for non-payment of the rent , and afterwards office is found of the dying seised , and that the land is ho●den in capite , and that the heir was within age : in the case the entry for the condition broken was revived , and the estate for life revived ▪ e. . . a disseisor is attainted of felony , the land is holden of the crown ; the disseisee entreth into the land , and afterwards office is found that the disseisor was seised , the remitter is taken out of the disseisee : which is a stronger case then our case ; for there was a right of entire , and in our case it is but a right of action , which is not so strong against the king. and for these causes he concluded , that the judgment given in the court of pleas ought to be reversed , and so prayed judgment for the lord of sheffield plaintiffe in the writ of error . this great case came afterwards to be argued by all the judges of england : and upon the argument of the case the court was divided in opinions , as many having argued for the defendant ratcliffe as for the plaintiffe : but then one new judge being made , viz. sir henry yelverton , who was before the kings sollicitor , his opinion and argument swayed the even ballance before , and made the opinion the greater for his side which he argued for , which was for the plaintiffe the lord sheffield ; and thereupon judgment was afterwards given , that the judgment given in the court of pleas should be reversed and was reversed accordingly : and the earl lord sheffield , now earl of mulgrave , holdeth the said castle and mannor of mulgrave at this day according to the said judgment . note , i have not set here the arguments of the judges , because they contained nothing almost but what was before in this case said , by the councel who argued the case at the bar. pasch . jacobi , in the kings bench. . it was the opinion of ley chief justice , chamberlain and dodderidge justices , that a defendants answer in an english court is a good evidence to be given to a jury against the defendant himself ; but it is no good evidence against other parties . if an action be brought against two , and at the assises the plaintiffe proceeds only against one of them , in that case he against whom the plaintiffe did surcease his suit may be allowed a witnesse in the cause . and the judges said , that if the defendants answer be read to the jury , it is not binding to the jury ; and it may be read to them by assent of the parties . and it was further said by the court , that if the party cannot find a witnesse , then he is as it were dead unto him ; and his deposition in an english court in a cause betwixt the same parties plaintiffe and defendant may be allowed to be read to the jury , so as the party make oath that he did his endeavour to find his witnesse , but that he could not see him nor hear of him . pasch . iacobi , in the kings bench. . the husband , a wife seised of lands , in the right of the wife levied a fine unto the use of themselves for their lives , and afterwards to the use of the heirs of the wife ; proviso that it shall and may be lawfull to and for the husband and wife at any time during their lives to make leases for years or lives . the wife being covert made a lease for years ; and it was adjudged a good lease against the husband , although it was made when she was a feme covert , and although it was made by her alone , by reason of the proviso . pasch . jacobi , in the common-pleas . . note that hobart chief justice said , that it was adjudged mich. jacobi in the common-pleas , that in an action of debt brought upon a contract , the defendant cannot wage his law for part , and confesse the action for the other part . and it was also said , that so it was adjudged in tart's case upon a shop-book . and vide h. . br. contract . a contract cannot be divided . h. . . if the law doth not lie for parcel , then it is suspended for the whole where the debt is an entire debt . and so it was adjudged in this case . pasch . jacobi , in the kings bench. . note it was cited by chamberlain justice , jacobi , to be adjudged , that where a man brought an action upon the case against another man for calling of him bastard , that the action was maintainable . the defendant brought a writ of error , and shewed for error , that the plaintiffe did not claim any inheritance ▪ or to be heir to any person certain : but notwithstanding that error assigned , the judgment was affirmed . and he said , that if one saith of j. s. that his father is an alien , that an action upon the case will lie , because it is a disability to the son. quaere . trin. jacobi , in the kings bench. . young and englefield's case . intratur , pasch . jac. rot. . young brought an action of trespass for entring his close , &c. abutted upon one side with pancras , and butted on the other side with grayes-inne-lane . upon not guilty pleaded , the parties were at issue : aud the record of nisi prius was graves-inne-lane ; and thereupon the party was nonsuit . and now it was moved to have a venire facias de novo . and a case was cited expresse in the point , betwixt farthing and dupper , jacobi rot. . where in an action upon the case upon assumpsit , the plea-roll was six weeks , and the record of nisi prius six moneths : and the jury being sworn , the plaintiffe was nonsuit ; and a venire facias de novo was awarded , and the nonsuit was recorded . ley chief justice , you cannot have a new venire facias if the nonsuit be recorded : and if the record of nisi prius varieth from the record , then it can be no nonsuit , because there is no record upon which the nonsuit can be , and the nisi prius was prosecuted without warrant . judicial procss are of record , because they are by the award of the court : but if the transcript of a record be mistaken by a clark , it issueth out by the award of the court ; and if it vary , then it is no record . the president cited is direct in the point : there was a venire facias de novo ; but i conceive there is a difference where the jury is sworn , as it is in the president , and then the plaintiffe is non-suit ; but in our case the plaintiffe was nonsuit before the jury was sworn . but per curiam the case is the stronger to have a new trial . trin. iacobi , in the kings bench. . pritchard and williams case . in an ejectione firme , the jury found for the defendant . now it was moved for the plaintiffe , that the defendant might not have costs , because the venire facias is mistaken . and the defendants councel cited a president in the case , viz. mich : jacobi , betwixt done and knot ; where the defendant had judgment for his costs , notwithstanding that the plaintiffe mistooke his venire facias in an ejectione firme , where the jury found for the defendant . trin. iacobi , in the kings bench. . wiseman and denham's case . wiseman brought an action upon the case against denham parson , and declared that there is a custom within the town and parish of landone , of which the defendant is the parson . that every parishoner who keeps so many kyne within the said parish , should give and pay to the parson , for his tythe-milk , so many cheeses at michaelmas : and shewed how that he kept so many kyne , viz. , &c. within the said parish , and that he did tender apud landone so many cheeses at michaelmas to denham the defendant , being parson , who refused them , and to take them away , but suffered them to be and continue in the plaintiffs house , for which cause he brought the action : the defendant did demur upon the declaration . george crook , the action will lie ; for the plaintiffe hath a damage , by reason that the parson doth not take away his tythe-cheese . and it is like unto the case in h. . action sur le case . where a man sold unto another hay , and because that the vendee took not away his hay , an action upon the case did lie , for it was a damage to the plaintiffe to let it stand upon his ground , for he durst not put his cattel into his ground to feed , lest they should eat the hay and spoil it , and so he should be lyable to an action to be brought by the vendee : so if tythe be lawfully se●forth , and the parson refuseth the tythe , but will sue in the spiritual court for the tythe , an action upon the case will lie : à fortiori in this case , for the cheeses may be cumbersome and troublesome to the partie , so as he cannot make the best use or benefit of his house . paul crook ▪ contrarie : and he took exception because the tender is alledged to be apud landone , and it is not shewed that it was at his house at landone , or in any place certain ; and he said that the action will not lie , because here is no damage to the plaintiffe : and it is like the case when a man makes a lease rendring rent , cheese , or corn , and the tenant tendreth it , and the lessor refuseth it ; the lessee cannot have an action upon the case against his lessor , but he may plead the matter in barr , in an action brought by the lessor . and the case of h. . before put , is not to the purpose , for there it was part of the bargain to take it away by such a time : and in our case the plaintiffe may plead the matter in barr to the plaint ' . eliz. betwixt crispe and jackson , an action upon the case was brought for suing in the ecclesiatical court for tythes which were due , and he recovered damages . secondly , admit that the action doth lie , then it is because it is a damage unto him that they remain in his house ; but it doth not appear that the tender was made at his house , but apud landone , which might be a mile from the house ; and so because it was his own fault , the action will not lie as this case is , by reason of the tender . george crook , it was adjudged in a cornish case , that an action upon the case lieth against a parson which doth not take away his tythe corn , or hay , because it spoyles the ground upon which it stands , and because the partie cannot have the free use of his land : so in our case , he cannot have the free a●e of his house , the cheeses cumbring his house , and offending him with their smell . haughton justice , if the action were well laid , it would lie for the cause , but in this case it is not well laid : if any thing makes the action to lie , it is the damage which the plaintiffe doth sustain by the cheeses being in his house ; but here it is laid to be tendred apud landone , and it is not said at his house , and non constat how the cheeses came to his house ; for if they were brought back by the plaintiffe , or by his commandment , then the action will not lie ; but if he had laid his action , that he gave notice to the parson that he had so many cheeses ready for him for his tythe , and had required him to send for them , then if the parson had not carried them away , the action would have lien ; but for the reason before the action as it is laid is not maintainable . dodderidge justice , there are two matters in this case : first , if the action will lie for the matter . secondly , if the action will lie by reason of the tender : as to the first , i put this difference , that in some case it will lie , and in some case it will not lie ; in this case the action is not maintainable . where a tender is of a thing which the partie ought to have , by the tender the property is changed ; and there a damage may arise by reason that he will not take it away , as in the case of h. . put before ; there the plaintiffe had damage by the standing of the hay upon the ground , for he could not put in his cattel , for then he might be in danger of an action , because the cattel might eat the hay . if one setteth forth his tythe , and the parson having notice thereof will not take it away , an action lyeth , because it as a damage to the land : but in our case , admit the tender were at his house , yet this tender doth not alter the property in the person , and they being his own cheeses , he hath no loss ; so the difference is , where the partie hath damage and loss , and where he hath none , as here in our case he hath no damage ; the tender of the rent saves from the penaltie , but doth not discharge the dutie ; but admit that the action will lie , yet in this case the declaration is insufficient , for the tender is not alledged to be at any place certain in the village , for it may be that he tendred them to the parson in the church-yard of landone , and then by the carrying of them home to his house again , he hath lost the action which he might have had if he had tendred them at his house . ley chief justice , there is a difference in the case of tenders : if i tender such a thing which is due , and the other refuseth it , and i must pay the same thing in kinde , if by the keeping of it i be endamaged , i may have an action upon the case : and that is our case . if a man setteth out his tythe hay , or corn ( the tender in our case is a setting forth of the tythe cheese ) and the parson refuseth to take it away , and it perish in keeping , i am excused for the perishing of it ; but i may have an action against the parson , for letting it stay upon my land to my anoyance . so if a. commit goods to me to keep in my house , and i require him to take them away and he refuseth to do it , i may have an action upon the case against him , for it is a trouble to me to remove them for him : and so in our case ; but it is otherwise where i pay rent-corn , and the lessor doth refuse it , i may pay him in other corn . if one be to pay so much corn , and the other will not receive it being tendred unto him , untill it be dearer , an ●ction upon the case will lie , for he is thereby endamaged . in our case the partie is damnified , for his house is anoyed by the smell , and also encombred therewith , and the rooms of his house are valuable , and he cannot make use of them at his pleasure : the tender ought to be , where by the ordinary course the thing hath its beeing : as at the place of the shearing of the sheep , the parson is to demand his tythe wool , and there it is to be paid , if there be be a person who hath power to deliver it ; the things which are ordinarily in the house , as butter , cheese , &c. are to be tendred there , and there they are to be demanded , and thereof notice is to be given to the parson ; and the partie is not bound to carry them to the parsons house . the cheeses which are to be paid by this custom , are to be paid of cheeses made upon that land , and not of cheeses which the parishoner shall buy elsewhere : the tender is alledged to be in the town of landone , and the law intends the cheeses to be in the parishoners house and this general tender is to be understood at the place where the cheeses by intendment of law are to be ; and on the other side it ought to be alledged , that the tender was not at the house : so as i conceive that the tender is good . dodderidge , the intendment is not good in this case ; for in every declaration there ought to be certainty and verity ; but in a plea in bar , there if it be a common intendment , it is sufficient . if a man speak generally of a town , it is to be meant at the hamlet where the church stands . ley , when a tender is pleaded , it is supposed to be at the place where the tender ought to be by the law. as a man is bound to pay money , if he plead that he tendred it at d. it shall be intended that d. is the place where it ought to be paid . if the partie goeth to the parsons house , and tells the parson that he hath at his house such tythe cheeses for him , and requires the parson to send for them ; here the notification is at the parsons house , but the real tender is at the parties own house : and the partie plaintiffe in our case cannot plead it otherwise then at landone . haughton , in this case the law requires a special place of tender expressed , or else he shews no cause of action : for if it were at any place out of his house , the action will not lie , and the cheeses ought to be personally tendred . ley chief justice ; that would be inconvenient , for then he must carry them to him , and so he should be forced to wait upon the parson . dodderidge , e. . if i tender to one a marriage , or a ward , the woman , or ward ought to be present at the time of the tender . tender of money in a bag , as to say , i have money for you , is no good tender : and so it is of cheeses ; to say , i have cheeses for you , is but a verbal tender , and it is not good ; but it ought to be tendred personally and in kinde . you will intend that the parson was at the plaintiffs house at the time of this tender , and here is nothing in the case to direct you so to think . ley , the place is but circumstance , for the parson is tyed to demand them at the house , being the proper place of tender , by reason of their being there . dodderidge , the cheese must be shewed the parson , and that proves that he must be present : ley , if he were present , then the tender is good : but if he be not there , but at another place , the notice is sufficient dodderidge , the law requires certainty in a declaration , and the matter cannot be taken by intendment ; so we ought to have a certainty set forth , otherwise no certain judgment can be given . it was adjourned , for dodderidge and haughton justices were against ley chief justice : but as i have heard , the case was afterwards adjudged for the plaintiffe . there quaere the record of the judgment . trin. iacobi , in the kings bench. . a man made a lease for life , and covenanted for him and his heirs , that he would save the lessee harmless from any claiming by , from or under him . the lessor dyed , and his wife brought a writ of dower against the lessee , and recovered ; and the lessee brought an action of covenant against the heir . and it was adjudged against the heir , because the wife claimed under her husband , who was the lessor : but if the woman had been mother of the lessor who demanded dower , the action would not have layen against the heir , because she did not claim by , from , or under the lessor . and so it was adjudged , v. . h. . . b. trin. iacobi , in the kings bench. . snell and bennet's case . a parson did contract with a. his executors and assigns , that for ten shillings paid to him every year by a. his executors and assigns , that he , his executors or assigns should be quit from the payment of tythes for such lands during his life , viz. the life of the parson . a. paid unto the parson ten shillings , which the parson accepted of ; and made b. an enfant his executor , and dyed . the mother of the enfant took letters of administration durante minori aetate of the enfant , and made a lease at will of the lands . the parson libelled in the ecclesiastical court for tythes of the same lands against the tenant at will ; who thereupon moved for a prohibition . dodderidge , during the life of the parson the contract is a foot ; but the assignee cannot sue the parson upon this contract , yet he may have a prohibition to stay the suit in the ecclesiastical court , and put the parson to his right remedy , and that is to sue here . this agreement is not by deed , and so no lease of the tythes . the parson shall have his remedy against the executor for the ten shillings , but not against the tenant at will : and the executor hath his remedy against the tenant at will. crook , h. . a lease of tythes without deed is good for one , but not for more years , v. h. . and afterwards a prohibition was granted . trin. jacobi , in the kings bench. . philpot and feilder's case . the parties are at issue in the chancery , and a venire facias is awarded out of the chancery to try the issue ; and the venire facias was , quod venire facias coram &c. duodecim liberos & legales homines de vicineto de &c. quorum quilibet habeat quatuor lib. terrae , tenementorum , vel reddituum per annum ad minus , per quos rei veritas melius sciri poterit &c. and it was moved in arrest of judgment , that the venire facias is not well awarded ; for it ought to be quorum quilibet habeat quadraginta solidos terrae , tentorum vel reddit . per an . ad minus , according to the statute of h. . cap. . which appoints that every one of the jurors ought by law to expend forty shillings per annum of freehold , and it ought not to be quatuor libras terrae &c. according to the statute of eliz cap. . which statute of elizabeth doth not speak of the chancery , but only of the kings bench , common-pleas , and the exchequer , or before justices of assise . before the statute of h. . no certain land of jurors was named in the venire facias ; but since the statute of h. . it was quadragint . solidos , untill the said statute of eliz. and now it is quatuor libras in the kings bench , common-pleas , and exchequer . it was adjourned . at another day the case was moved again , that the venire facias ought to be solidos &c. according to the statute of h. . cap. . and h. . . & were vouched , that if a statute appoint that the king shall do an act in this form , the king ought to do it in the same form and manner : so if a letter of attorney be to make a bill in english , and the same is made in latine , it is not good , although it be the same in form and matter . cook lib entries . waldrons case is , that in the chancery the venire facias was but ▪ but that case was between h. . and eliz. cap : . dodderidge and haughton justices , it is a plain case , for the venire facias ought to be according to h. . cap. . because the statute of eliz. cap. . speaks nothing of the chancery , quod nota . trin. iacobi , in the kings bench. . hewet and bye's case . in an ejectione firme of a house in winchester , the ejectment was laid to be of a house which was in australi parte vici , anglice the high-street . ley chief justice , if it had been ex australi parte vici , then the south part had been but a boundary : but here it is well laid . then it was moved , that the venire facias is duodecim liberos & legales homines de winton , and doth not say of any parish in winton . but notwithstanding it was holden good : for dodderidge justice said , that it is not like unto arundels case , c. . part . for there the offence was laid to be done in paroechiae sanctae margaret de westminster , therefore the visne ought to be of the parish ; but in this case it being laid generally in winton it is sufficient that the visne come out of winton . judgment was given for the plaintiffe . trin. iacobi , in the kings bench. waterer and mountague's case . a man made a lease for six years ; and the lessor covenanted , that if he were disposed to lease the said lands after the expiration of the said term of six years , that the lessee should have the refusal of it . the lessee within the six years made a lease thereof to j. s. for years . dodderidge , haughton , and ley chief justice , the covenant is not broken , because it is out of the words of the covenant . but dodderidge said , temp. e. . covenant . the lessee covenanted to leave the houses , trees and woods at the end of the term in as good plight as he found them ; and afterwards the lessee cut down a tree , that in that case the covenant was broken , and the lessor shall not stay untill the end of the term to bring his action of covenant , because it is apparant that the tree cannot grow again and be in as good plight as it was when he took the lease . trin. iacobi , in the kings bench. . owfield against shiert . a writ of error was brought to reverse a judgment given in an action of debt ; the action of debt was upon a concessit solvere , &c. pro diversis summis pecuniae ; and the opinion of the court was , that debt doth not lie upon concessit solvere pro diversis summis , &c. because it is incertainty : but the same term in another case , viz. stacies case , that by custom of london , it was holden that debt doth lie upon a concessit solvere pro diversis summis : and it was then said , that in an action upon the case , it was good to say , that in consideration de diversis summis concessit solvere : and so it hath been adjudged . trin : jacobi , in the kings bench. hawkswith and davies case . intratur . . pasch . . jur. rot. . lessee for years of divers parcels of lands , reservant rent , and for not payment a reentrie : the lessee assignes part of the land to a. and other part to b. and keeps a part to himself : afterwards the lessee levies a fine of all the lands unto the use of the conusee and his heirs ; afterwards the lessee paies the rent for the whole unto the conusee , and afterwards the rent becomes behind ; and the conusee enters for the condition broken , and made a lease to the plaintiffe , who thereupon brought an ejectione firme ; and all this matter was found by special verdict : and it was moved , that by the assigning of the lessee of part of the lands to one , and part to another , that the condition was gone and destroyed ; but notwithstanding , it was agreed by all the justices , that the condition did remain , and was not gone nor destroyed . and they said that this case was not like unto winters case , in dyer , & . where the lessor did assigne over part of the reversion to one , and part unto another ; for that in that case the lessor by his own act had destroyed the condition , but in this case it is the act of the lessee , and therefore no colour that the condition be gone and destroyed . and so it was resolved for the plaintiffe , and judgment given accordingly . trin. jacobi , in the kings bench. . killigrew and harper's case . harper in consideration of l. doth assume and promise to killigrew , that the lady weston and her son shall sell to killigrew such lands , proviso that killigrew such a day certain pay to the said lady and her son l . at which time the lady and her son shall be ready to assure and convey to killigrew the said lands ; and for want of payment of the said l . at the said day , that killigrew shall lose the said l. and that the contract for the land shall be void . killigrew brought an action upon the case sur assumpsit against harper , and all this matter was found by special verdict . athow serjeant argued that the action would lie , because the lady and her son were to do the first act , viz. to make the assurance . h. . . rent is reserved upon a lease for years in which are divers covenants , and a bond is given for the performance of all the covenants within such indenture of lease : the rent is behind , the bond is not forfeited unlesse the lessor doth make a demand of the rent , because the lessor is to do the first act , viz. to demand the rent . yelverton contr ' that the action will not lie . the question is , of whose part is the breach ? the assumpsit is grounded upon the consideration , and not upon the promise : the jury find that killigrew was not ready to pay the l. and that the lady and her son were not ready to assure the land . the agreement was ( for which not time is expressed ) that the lady and her son should convey such lands : then the agreement was , that killigrew should pay at such a day certain , at which day the lady should be ready , &c. and if killigrew made default of the payment of the l. then he was to lose the said l. which he gave to harper to procure the bargain , and also that the bargain should be void . ley chief justice , if killigrew had paid or tendred the l. at the said day , and the lady and her son had not been ready at that time to have assured the lands , killigrew should have had an action upon the case for the l. and recovered damages : if the lady had been to have done the first action , then the action would have been maintainable ; but in this case killigrew is to do the first act , and therefore the action will not lie . dodderidge , if it had been indefinite , then the assurance and conveyance is to be before the payment ; but here the bargain is to pay the mony first . harper promiseth to killigrew in consideration of l. that killigrew shall buy such lands ; then comes the time of payment , and assurance of the land at that time shall be made ; proviso , that if he do not pay the l . then killigrew to lose the l. and the contract to be void : so there are two penalties ; so as of necessity the l . must first be paid , for otherwise how can the contract be void for not payment ? for if the conveyance shall be first made , then it was present before the mony paid , and so the clause ( viz. ) then the contract to be void , should be of no effect . haughton justice agreed . chamberlain justice , you have bound your self with a penalty , and the bargain ought to be performed as it was made . and so being made , that the mony should be first paid , at which time the conveyance shall be made ; and for want of payment , that killigrew should lose the l. and also the contract to be void : the opinion of the whole court was against the plaintiffe , that the action would not lie ; and so judgment was given quod nihil capint per billam . trin. jacobi , in the kings bench. . sir arthur gorge and sir robert lane's case . an action of debt was brought upon a bond for not performance of covenants . the case was : lane did marry with the daughter of gorge ; and in consideration of marriage , and also of l . portion given in marriage by gorge , lane did covenant , that he within one year would make a jointure of lands within england then of the value of l . per annum over and above all reprises , to his said wife , so as sir henry yelverton and sir john walter councellors at law should devise and advise . in debt for the breach of these covenants , lane pleaded , that he did inform gorge of lands which he was determined should be for her jointure , but neither yelverton nor walter did devise the assurance . paul crook did demur upon the plea ; and first shewed , that lane did not give notice to yelverton and walter , as he ought to have done by law : for in this case it is not sufficient to give notice to gorge , but the notice ought to be to the councellors , otherwise how could they devise the assurance for her jointure ? . heer is no place named where the notice was , for it is issuable whether he gave notice or not ; and then there being no certain place named , no visne can be upon it . . he doth not shew where the lands are ; for it might be ( as in truth it was ) the lands were out of england , and by the covenant they ought to be within england . . he doth not shew that the lands were of the value of l . per annum over and above all reprises , as they ought to be by the articles ▪ . he sheweth that they were his freehold , but doth not shew that the lands were his lands of inheritance of which a jointure might be made . the opinion of the whole court was , that the exceptions were good , and that the plea in bar was no good plea. dodderidge , if the word had been ( such as his councel shall devise ) then the notice ought to have been given to the party himself , and he is to inform his councel of it , h. . . but here two councellors were named in certain , and therefore the notice ought to be given to them , for he hath appointed councellors . the whole plea in bar is naught ; for if he hath an estate in tail , then there ought to be a fine in making of the jointure ; and if there be a remainder upon it , then there ought to be a recovery : so because that lane hath not informed the party what estate he had in the lands , they could not make the assurance . ley chief justice . where a man is bound to make such assurance of lands as j. s. shall advise , here he need not shew his evidences , but he ought to shew to the party what the land is , and where it lieth , and the obligee is to seek out the estate at his peril : and then j. s. may advise the assurance conditionally , viz. that if he hath fee , then to have such an assurance ; and if an estate in tail , then such an assurance ; and if there be a remainder over , then to devise a recovery . curia , all the errors are material . the bail for lane , before any judgment given against him , brought lane into court , and prayed that they might be discharged , and lane taken into custody ▪ dodderidge justice said , there is a difference betwixt manucaptors , which are that the party shall appear at the day , for there the court will not excuse them to bring the party in court before the day : but in case of bail , there they may discharge themselves if they bring the body of the defendant into court at any time before the retorn of the . scire facias : against the defendant . for when one goeth upon bail , it is intended that he notwithstanding that is in ●●stodia mariscalli ; for the declarations are in custodia mariscalli marschalsiae . quod hota , so is the difference . trin. jacobi , in the kings bench. . wheeler and appleton's case an action upon the case was brought for these scandalous words , viz. thou hast stollen my peece , and i will charge thee with suspition of felony : which were found for the plaintiffe . it was moved for the staying of judgment , that the action was not maintainable : for the declaration is a peece , innuendo a gun : and here the innuendo doth not do its part ; for it might be a peece of an oak , or a . peece of gold , which is commonly called a peece ; and in this case the words may be intended such a peece . . jacobi in the kings bench , betwixt palmer and r●ve : thou hast the pox , and one may turn his finger in the holes of his legs : adjudged that for these words the action would lie , because it cannot be meant otherwise then of the french pox . eliz. in the kings bench , the defendant said of the plaintiffe , thou art forsworn , and thou hast hanged an honester man then thy self : the action did lie . for the first words , thou art forsworn , no action will lie , c. . part . but the later words prove that it was in course of justice , and that he was perjured . so in this case , admitting that the first words will not bear an action , yet the later words make them actionable ; for the first words ought to be meant of a thing which is felony . heck's case , c. . part . there it was adjudged for the plaintiffe , although the first words would not bear action , yet the later words make them actionable . i will charge thee with suspition , or flat felony , an action doth not lie , hecks case proves it . another councellor argued that the action would not lie : the first words are not actionable ; for so many things as there are in the world , so many peeces there may be , and here it might be a peece of a thing which could not be felony . betwixt roberts and hill , jacobi in the kings bench it was adjudged , roberts hath stollen my wood , the words were not actionable ; for it might be wood standing , and then to cut and take it away it is not felony , but trespass . ley chief justice , i charge thee with flat felony , if the words be spoken privately to a man no action lieth for them ; but if they be spoken before an officer , as a constable , or in a court which hath conusance of such pleas , then the action will lie , for the party by reason of such words may come into trouble : but if a man charge one with flat felony , and chargeth the constable with him , then an action will not lie , because it is in the ordinary course of justice . c. . part . if a man maketh a bargain with another to pay him twenty peeces for such a thing , it shall be taken by common intendment twenty s. peeces of gold , which vulgarly are called peeces ▪ but to endite a man for peeces is not certain , and therefore such indictment is not good ; and the action in our case will not lie , for ( my peece ) is an incertain word . dodderidge . thou hast stollen my peece , what is that ? for we call s. in gold a peece . you ought to tell it in certain : and here the innuendo will not make the scandal , but the words of scandal ought to proceed out of the parties own mouth ; and an innuendo cannot make that certain , which was uncertain in the words of the speaker : and therefore the action here will not lie . haughton justice , if the whole matter had been set forth in the declaration , as to have shewed that the parties before this speech had had speeches of a gun , then the action in this case would have been maintainable ; but here , the word ( peece ) is incertain , and the action will not lie . chamberlain justice , if the speeches had been concerning a gun lost , then upon these words spoken the action would have lien , but not as they are here spoken ; for the two words there , ought to have been matter subsequent , as upon the charging with felony , to have delivered him to an officer . and so by the whole court it was adjudged , quod querens nihil capiat per billam . trin. jacobi , in the kings bench. . shoeter against emet and his wife . the plaintif being a midwife , the defendants wife said to the plaintif , thou art a witch , and wert the death of such a mans child , at whose birth thou wert midwife . in an action upon the case in arrest of judgment it was moved , that the words were not actionable . hill jacobi , in the common pleas : stone and roberts case adjudged , that an action upon the case doth not lie for saying thou art a sorcerer , jac. godbolds case in the kings bench , thou art a sorcerer or an inchanter . eliz. betwixt morris and clark , for saying , thou art a witch , no action will lie ; for of the words witch , or sorcerer , the common law takes no notice ; but a witch is punishable by the statute of jacobi , cap. . pasch . eliz lowes case , thou hast bewitched my cattel , or my child ; there because an act is supposed to be done , an action upon the case will lie for the words . . jacobi , sir miles fleetwoods case , he was receiver for the king in the court of wards ; and auditor curle said of him , thou hast deceived the king : and it was adjudged , that an action upon the case would lie for the words , because it was in his calling by which he got his living . chamberlain justice , since the statute jacobi , for calling one witch generally an action will lie ; for , for the hurting of any thing , a witch is punishable by shame , viz. pillory in an open place . dodderidge justice , thief or witch will bear action ; and the reason of the case before cited by the councel is , because that the common law doth not take notice of a witch : but punishment is inflicted upon a witch by the statute of jacobi , and by that statute a witch is punishable . trin. jacobi , betwixt mellon and her● , judgment was stayed where the words were , thou art a witch , and hast bewitched my child , because that the words shall be taken in mitiori sensu , as thou hast bewitched him with pleasure . and in that sense saint paul said , who hath bewitched you , o galatians ! that case was adjudged in the common pleas. trin. iacobi in the kings bench. . knollis and dobbine's case . knollis did assume and promise apud london , within such a parish that he would cast so much lead and cover a church in ipswich in suffolk , and one scrivener promised him to give him l . for his costs and pains : scrivener died , knollis brought an action upon the case against dobbins who was administrator of scrivener , and declared that he such a day did cast the lead and cover the said church , apud london . the defendant pretended that the intestator made no such promise , and it was found for the plaintiffe : and in arrest of judgment it was moved , that the declaration was not good , by reason that the agreement was to cover a church in ipswich , and he declared he had covered such a church apud london , which is impossible , being miles asunder ; and so the declaration is not pursuing the promise . dyer eliz. . in avowry for rent upon a lease for life , &c. that the prior and covent of &c. at bathe , demiserunt lands which was out of bathe , it was void ; for they being at bathe , could not make livery of land which was out of bathe . vi. dyer . the second exception to the declaration was , that the commissary of the bishop of norwich apud london , did commit administration of the goods and chattels of scrivener to dobbins apud london , which was said not to be good , because he had not power in london to execute any power which appertained unto him at norwich . dodderidge justice , the plaintiffe declares that apud london he did cover the said church , that is not good , and makes the declaration to be insufficient , because it is not according to the promise . the place where the commissary of the bishop of norwich did grant the administration is not material ; for if the bishop of norwich be in london , yet his power as to granting of letters of administration , and making of deacons and clarks in his own diocese , doth follow the person of the bishop , although his other jurisdiction be local , to which the court agree . and it was adjudged that the declaration was not good , and therefore judgment was given quod querens nihil capiat per billam . trin. iacobi , in the kings bench. . bullen and sheene's case . sheene brought a writ of error upon a judgment given in the common pleas. the case was , bullen being a commoner , intituling himself by those whose estate he had in the land , brought an action upon the case against sheene , because he had digged clay in the land where the plaintiffe had common , and had carried away the same over the common , per quod he lost his common , and by that could not use his common in as ample manner as he did before . sheene entitled himself to be a commoner , and have common in the said land also , and so justified the entrie , and set forth a prescription , that every commoner had used to dig clay there , and the first issue was found for the defendant sheene , viz. that he was a commoner ; but the other issue was found for the plaintiffe bullen , viz. that there was no such prescription , that a commoner might dig clay : and the jury did assesse damages to the plaintiffe generally ; and the same was moved to be error , because that the plaintiffe had not damage by carrying away of the clay , because the same did not belong to him , for that he was but a commoner ; and so the judgment given in the court of common pleas was erroneous . ley chief justice , by the digging of a pit the commoner is prejudiced , by the laying of the clay upon the common the commoner is prejudiced , and so the damages are given for the digging and carrying away of the clay , per quod commoniam suam amisit , and the damages are not given for the clay . chamberlain justice , if he had suffered the clay to lie by the pit , it had been damage to the commoner . if the owner of the soil plough up or maketh conyburies in the land , an action upon the case lyeth against him by the commoner , for thereby the common is much the worse , and the commoner prejudiceds if the pit be deep , it is dangerous to the commoner , and so a damage unto him , for it is dangerous lest his cattel should fall into it , and it will not suddenly be filled up again , and so no grass there for a long time , and the longer , because that which should fill up the pit is carried away . haughton justice , the proceedings are erroneous , both plaintiffe and defendant are commoners , the wrong is in two points . first , that the defendant had with his cattell fed the common : secondly , that the defendant had digged clay there , and carried the same away ; the defendant makes title to both : first he prescribes to have common there ; secondly , that the commoners by prescription have used to have and dig clay there . the first point is found for the defendant , and the last issue is found against the defendant , and damages are given generally : all the question is upon the declaration coepit & asportavit the clay , which implies a propertie and interest in the clay to be to the plaintiffe . it is not said that the clay was carried over the land ; i conceive that the property of the clay is in issue , and the commoner hath nothing to do with that : so damages being given to him for that which doth not belong unto him , i hold the judgment to be erroneous , and that it ought to be reversed . dodderidge , the declaration is well enough , and of necessity it cannot be otherwise : here the plaintiffe challengeth nothing but common ; in an action upon the case there ought to be injurie and damage , which is the consequent upon injurie ; for an action upon the case will not lie for an injurie without damage . here bullen doth not complain for any thing but the loss of his common , which is the first wrong : the second wrong is the digging of the pit , in the which his cattel may fall and perish : the third wrong is , for carrying away of six loads of clay over the common , which is a great detriment to the common , to carrie it either by carts or otherwise : and for these three wrongs he concludes his damages , ratione cujus he could not have his common in as ample manner as before he was used to have it , and he doth not conclude any damage for the clay : every one of these injuries doth increase the damages , and so it would have been if he had left the clay to lie upon the land by the pit , for thereby so much common would have been lost . here he makes himself title only to the common , and these acts do increase the damages only . . e. . & e. . where one was unlawfully and falsly imprisoned , and being imprisoned , compelled to levie a fine or make a feoffment , or other deed. in an action of false imprisonment the jurie gave damages , by reason of his restraint of his liberty , and increased them by reason of the levying of the fine , or making the feoffment or other deed , which he then made . the jurie found that he is not to have any clay , and coepit & asportavit doth not alter the case ; for that is a special action of trespass . and by three of the justices against haughton , the judgment given in the court of common pleas was affirmed . trin. iacobi , in the kings bench. . calthrope councellor , cited this case to have been adjudged , eliz. the husband seised in the right of his wife of copyhold land , made a lease for years ; and it was holden by the court then , that by the death of the husband the forfeiture of the copyhold was purged , and that the wife should have the land again , notwithstanding this forfeiture by the husband , by making a lease for years , without licence : and the court seemed to allow of the said case to be law. and afterwards , this very term the like case came in question in this court , betwixt severn and smith , where in an ejectione firme , a special verdict found , that a copyholder seised in the right of his wife , made a lease for years ; and it was a question whether it were a forfeiture of the inheritance of the wife . hitcham serjeant said it was no forfeiture : dodderidg justice took this difference , where a feme sole is a copyholder , and she takes a husband , who makes a lease for years without licence , the same is a forfeiture , because it is her folly to take such a husband as will forfeit her land : but where a copyhold is granted to a feme covert , and the husband maketh a lease without licence , in such case it is no forfeiture ; and so in the case of a feme lessee for life at the common law , against whitinghams case , c. . part . it was adjourned . trin. iacobi , in the kings bench. . note , it was the opinion of all the justices , and so declared , that if the plaintiffe in an ejectione firme doth mistake his declaration , that the defendant in such case shall have his costs of the plaintiffe , by reason of his unjust vexation . trin. iacobi , in the kings bench. . four several men were joyntly indicted for erecting and keeping of four several inns in bathe ; it was moved that the indictment was insufficient , because the offence of the one is not the offence of the other , like unto the case in dyer . where two joyn in an action upon the case for words , 't is not good , but they ought for to sever in their actions , because the wrong to the one , is no wrong to the other . dodderidge iustice , one indictment may comprehend several offences , if they be particularly laid , and then it is in law several indictments : it may be intended that the inns were lawfull inns ; for it is not laid to be ad nocumentum , and therefore not punishable ; but if they be an anoyance and inconvenient for the inhabitants , then the same ought particularly to appear , otherwise it is a thing lawfull to erect an inn. an action upon the case lyeth against an inn-keeper who denies lodging to a travailer for his money , if he hath spare lodging , because he hath subjected himself to keep a common inn. and in an action upon the case against an inn-keeper , he needeth not to shew that he hath a licence to keep the inn. if an inn-keeper taketh down his signe , and yet keepeth an hosterie , an action upon the case will lie against him , if he do deny lodging unto a travailer for his money ; but if he taketh down his signe , and giveth over the keeping of an inn , then he is discharged from giving lodging . the indictment in the principal case is not good , for want of the words ( ad nocumentum . ) haughton and ley iustices argreed . ley , if an indictment be for an offence which the court ex officio , ought to take notice to be ad nocumentum , there the indictment being general , ad nocumentum & contra coronam & dignitatem , is sufficient ▪ without shewing in what it is ad nocumentum . but for inns , it is lawfull for to erect them , if it be not ad nocumentum , &c. and therefore in such indictments , it ought to be expressed that the erecting of them is ad nocumentum , &c. and because in this case there wants the words ad nocumentum , the indictment was quashed . vi. the lord north and prat's case before to this purpose . trin. iacobi , in the kings bench. . bridges and nichols's case . they were indicted for the not repairing of such a bridg , and the indictment was , debent & solent reparare pontem , &c. it was moved that the indictment was insufficient , because it is not alledged in the indictment , that the the bridg was over a water , and no needfull that it be amended , secondly , it did not appear in the indictment , that at the time of the indictment the said bridg was ruinous and decayed . thirdly , the indictment is , that bridges and nichols , debent & solent reparare po●tem , and it is not shewed that their charge of repairing of the same is ratione tenare . e. . . where it is said , that a prescription cannot be , that a common person ought to repair a bridg , unless it be said to be by reason of his tenure ; but it is otherwise in case of a corporation . for these errors the indictment was quashed by iudgment of the court. trin : jacobi , in the kings bench. intratur , trin. . rot. . . sir thomas lee and grissel's case . grissel brought an action upon the case against lee in the common pleas , and shewed that diu fuit , & adhuc seisitus existens of a house &c. and he did prescribe that he and all those whose estate he hath in the said house , &c. had used to have common in the waste of l. and that lee in jacobi , made coniburies in the waste , quorum quidem premissorum he lost his common . the action was brought jacobi , and iudgment given in the common pleas for the plaintiffe there : and thereupon a writ of error was brought in the kings bench , and it was assigned for error , first , that ( diu seisitus ) is not good , because it hath not any limitation of time , for it may contain as well forty years as one year : he laid the wrong to be jacobi , and doth not shew that at that time he was seised , for ( diu ) doth not express any certain time ; and then it is like unto the case of waste , where the grantee of a reversion brings an action of waste , and doth not shew that he committed waste to his dis●heresin , but doth not shew when the waste was done ; for it might be that it was done betwixt the grant and the attornment , and then he had no cause to have waste ; or otherwise it might be that the waste was done in the time of the grantor , and then the grantee had no cause of action ; but in such case he ought to have shewed that he was seised of the reversion at the time of the waste done . e. . . there trespass was brought upon the statute of r. . and the writ was , that he did enter in diversa terras & tenementa , there it was holden that the writ being insufficient , the court should not make it good , because it is too general . in our case it ought to have been , that he was ( diu ) & adhuc est seisitus et , seisitus , that the defendant did do the wrong . another error was assigned because he doth not conclude , quorum quidem premissorum praetextu , he lost his common ; but he saies quorum quidem premissorum he lost his common ; and leaves out the word ( pr●textu ) which word ought to have been in the declaration . the action is brought three years after the wrong done , and he ought to have shewed , that he jacobi ( which was the time of the wrong done ) fuit seisitus , & diu ante fuit seisitus in dominico ut de feodo . all before the clause , quorum quidem , &c. is but collection ; and he ought to have concluded with a cause of grievance , viz. quorum quidem premissorum praetextu , he lost his common . h. . . there it is said that this word ( praetextu ) is a conclusion that the particular wrong doth contain , and doth affirm that which went before ; but in this case the word ( praetextu ) is wanting , and a seisin first ought to be laid , and then praetextu quorum is good . vi. bullen and sheenes case before , where the plaintiffe first made him title to the common , viz. that he was such a time seised in fee , & adhuc seisitus existens , that the defendant did dig clay : vi. brown and greens case in the common pleas. eliz. where a man pleaded a feoffment and livery , virtute cujus he was seised in fee , and did not shew that he entred , and yet the same was good , because the virtute cujus was a good conclusion . ley chief justice , ( diu ) doth not denote any time certain ; if in a case it had been postea , or sic inde seisitus , the defendant did the wrong , then the declaration had been good ; but here is nothing to which diu , may have reference : if he had said , that he being ( diu seisitus ) that the defendant had such a day done the wrong , it had been good . secondly , here ought to have been either quorum quidem premissorum ratione , or praetextu , he lost his common : here the latine is good , viz. quorum quidem premissorum commoniam perdidit , but it is not good in law. dodderidge justice , you ought to have coupled the damage and the wrong ; and in this case there wants the coupling , for want of the word ( praetextu ) for the word ( praetextu ) is the application of the precedent matter : the matter of wrong is the making of the conyburies , by reason of which he lost his common : and the quorum quidem here hath not any sense : the declaration wants matter of form also ; diu fuit seisitus & adhuc seisitus existens . might you not have purchased this common after the wrong done by the making of the conyburies ? for it doth not appear otherwise by the declaration ; for as well as ( diu ) may comprehend forty years , so it may but one moneth . if it had been diu seisitus & sic seisitus ) that he made the conyburies , then the declaration had been well ; but as this case is , it is not good . haughton justice , your action ought to have contained your matter of time , as well as your matter of wrong . ( diu ) includes no certainty of time ; and quorum quidem premissorum , &c. is a speech without sense . if a man maketh title to have common pro omnibus averiis , and the word ( suis ) is omitted , it is not good . ley chief justice , here the wrong and damage are not knit together by these words ; and it might be that in this case he had lost his common by some other means : for he doth alleadge that he lost his common ; but how he lost it , that doth not appear to us . if he had said , virtute cujus , or per quod , or ratione cujus he had lost his common , then the declaration had been certain , and had been well enough : but here it being incertain , both in the seisitus , and also in the alleadging the damage , the judgment given in the court of common-pleas for these errors was reversed . trin. iacobi , in the kings bench. . pye and bonner's case . an information was in the common-pleas by pye against bonner , for buying of cattel & selling of them again in the same market , against the satute . which was found against the defendant ; and the judgment was entred quod sit in misericordia , whereas it ought to have been capiatur , being upon an information ; for it is a contempt , and punishable by imprisonment . and in this case upon a writ of error brought in the kings bench , by the opinion of the whole court the judgment was reversed . trin. jacobi , intratur hill. jac. rot. . in the kings bench. . kite and smith's case . one recovered by erronious judgment ; and the defendant did promise unto the plaintiffe , that if he would forbear to take forth execution , that at such a day certain he would pay him the debt and damages and action upon the case was brought upon that promise . and now it was moved by the defendants councel , that there was not any consideration upon which the promise could be made , because the judgment was an erronious judgment . it was adjourned . but i conceive , that because it doth not appear to the court but that the judgment is a good judgment , that it is a good consideration : otherwise , if the judgment had been reversed by a writ of error before the action upon the case brought upon the promise ; for there it doth appear judicially to the court , that the judgment was erronious . trin. jacobi , in the kings bench. . totnam and hopkin's case . an action upon the case was brought upon an assumpsit : and the plaintiff did declare , that in consideration of &c. the defendant martii did promise to pay and deliver to the plaintiffe quarters of barley the next seed-time . upon non assumpsit pleaded it was found for the plaintiffe . it was moved for the defendant , that the plaintiffe ought to have shewed in his declaration when the seed-time was , which he hath not done . but it was answered , that he needeth not so to do , because he brings his action half a year after the promise , for not payment of the same at seed-time , which was betwixt the promise and the assumpsit . dodderidge justice , if i promise to pay you so much corn at harvest next , if it appeareth that the harvest is ended before the action brought , it is good without shewing the time of the harvest , for it is apparent to the court that the harvest is past : and here the action being brought at michaelmas , it sufficiently appears that the harvest is past . and judgment was given for the ●laintiffe . trin. iacobi , iatratur hill ● iacobi , rot. . inter hard & foy , in the kings bench. . kellaway's case . in an ejectione firme brought for the mannor of lillington upon a lease made by kellaway to fey , it was found by a special verdict , that m. kellaway seised of the mannor of lillington in fee , holden in soccage , did devise the same by his will in writing in these words , viz. for the good will i bear unto the name of the kellawayes , i give all my lands to john kellaway in tail , the remainder to my right heirs , so long as they keep the true intent and meaning of this my will. to have to the said john kellaway and the heirs of his body , untill john kellaway or any of his issues go about to alter and change the intent and meaning of this my will. then , and in such case it shall be lawfull to and for h. kellaway to enter and have the land in tail with the like limitation . and so the lands was put in remainder to five several persons , the remainder to the right heirs of the devisor . m. kellaway dyed without issue , john kellaway is heir , and entred and demised the same to r. k. for years , and afterwards granted all his estate to hard. afterwards john kellaway did agree by deed indented with w. k. to levy a fine of the reversion to w. and his heirs . h. kellaway entred according to the words of the proviso in the will , and made the lease to foy , who brought an ejectione firme against hard. and whether h. kellaway might lawfully enter or no was the question . it was objected , that in the case there is not any forfeiture , because the fine was without proclamations , and so it was a discontinuance only . the first question is , if the remainder doth continue : the second is , if it be a perpetuity , or a limitation . john kellaway is tenant in tail by devise , untill such time as john kellaway or any of his issues agree or go about to alter or change the estate tail mentioned in the will ; with proviso to make leases for years , lives , or to make jointures : then his will is , that it shall be lawfull for h. k. to enter and to have the land with the same limitations . if it be a perpetuity , then it is for the plaintiffe ; but if it be but a limitation , then it is for the defendant . the fine was levied without proclamations , and h. k. entreth for the forfeiture . damport , it is no perpetuity , but a limitation , which is not restrained by the law as perpetuities are , untill such time as &c. shall discontinue &c. the jury find an agreement by indenture : the act which is alleadged to be the breach , is , conclusivit & agreavit , not to levy a fine with proclamations , but to levy a fine without proclamations , which is but a discontinuance . yelverton , if the fine had been with proclamations , then without doubt he in the remainder during the life of him who levied it had been barred . the devise was , to have to them and to the heirs of their bodies , so long as they and every of their issues do observe , perform , fulfill and keep the true meaning of this my will touching the entailed lands in form following , and no otherwise . and therfore i m. kellaway do devise unto john kellaway & the issue of his body the remainder & c. ●o have to the said john kellaway and the issue of his body , untill he or any of his issue shall go about to conclude , do , or make any act or acts to alien , discontinue , or change the true meaning of this my will. that then my will is , and i do give and bequeath to h ▪ k ▪ in tail , and that it shall be lawfull for him the said h. k. or his issue to enter immediately upon such assent , conclusion , or going about to conclude &c. and that h. k. and his issue shall leave it untill he or any of them go about &c. c. part , sundayes case , . where it was resolved , that no condition or limitation , be it by act executed , or by limitation of an use , or by a devise , can bar tenant in tail to alien by a common recovery , v. c. . part acc . the case was not resolved , but it was adjourned to another day to be argued , and then the court to deliver their opinions in it . trin. . intratur trin. jacobi , rot. . in the kings bench. . knight's case . in this case george crook said , that land could not belong to land : yet in a will , such land which had been enjoyed with other , might pass by the words cum pertinaciis . as where a. hath two houses adjoyning , viz. the swan and the red-lyon ; and a. hath the swan in his own possession , and occupieth a parlour or hall ( which belongs in truth to the red-lyon ) with the swan-house , and then leaseth the red-lyon house , and then by his will deviseth his houses called the swan : the rooms of the lyon which a. occupied with the swan shall pass by the devise , although of right those rooms do belong to the lyon-house . pasc . eliz. ewer and heydon's case . a man hath a house and divers lands in w. and also a house and lands in d. and by his will he deviseth his house and all his lands in w. & d. there the house which is in d. doth not pass , for his intent and meaning plainly appears that his house in d. doth not pass : but if he had devised all his lands in w. and had not spoken of the house , the house had passed . a case was in the common-pleas betwixt hyam and baker : the devisor had two farms , and occupied parcel of one of the farms with the other farm , and devised the farm which he had in his possession ; the part of the other farm which he occupied with it , did pass with the farm devised . dodderidge justice , the devise is in the case at bar : all his farm called locks to his eldest son , and all his farm called brocks to his younger son ; and the land in question was purchased long after that the devisor purchased brocks ; but that land newly purchased was not expresly named in the will , and therefore it shall discend to the heir , viz. the eldest son. land is not parcel of a house , and in strictness of law cannot appertain to a house : yet land is appertaining to the office of the fleet and the rolls ; but that is to the office , which is in another nature then the land is . for the land newly purchased , ( the jury did not find the same to be usually occupied with brocks ) it shall not pass with brocks , although it be occupied together with brocks . i do occupie several farms together , and then i devise one of the farms called d. and all the lands to the same belonging ; the other farms shall not pass with it , although they be occupied all together . haughton justice , what time will make lands to belong unto a house ? all the profits of the lands used with the house for a small time will serve the turn . ley chief justice , there are two manner of belongings ; one belonging in course of right , and another belonging in case of occupation . to the first belonging there ought to be prescription , viz. time out of mind : but in our case , belonging doth borrow some sense from occupying for a year , or a time ; and then another year to occupie it will not make it belonging in the later sense . in strictness of law , land cannot be said to belong to a house , or land ; but in vulgar reputation it may be said belonging : and in such case , in case of grant , the land will not pass as appertaining to land , c. . part . terringham's case . but in our case , it is in case of a will. usually occupied , is not to be meant time out of mind . here other lands were belonging to brocks ; and so the words of the will are satisfied . but it might have been a question , if there had been no other lands belonging to it . dodderidge justice , if the devisor had turned all the profits thereof to brocks , then it had passed by the will. ley chief justice , this occupying of it promiscuously doth make it belong to neither . at another day , ley chief justice said , here is nothing which makes it appear to us that this land doth belong to brocks : for the jury find not that it was occupied either with brocks or locks ; and so this land belongs to neither of them . dodderidge , there is not any question in the case : it is not found that it doth belong ; and then we must not judge it belonging . the ground of this question ariseth out of the matter of fact ; and it ought to be found at the least , that it is appertaining in reputation . haughton , the jury find that knight was seised of brocks and of lands belonging to it , and that he was seised of locks and of lands belonging to that , and lastly they find that he was seised of this land in question , but they do not find that it was any wayes belonging to brocks or locks . it was adjudged for the plaintiff , and that the land did not pass by the devise , but that it did discend to the heir . trin. jacobi , in the kings bench. . sely against flayle and farthing . in an ejection firme the verdict was found for the defendant . three of the jurors had sweet-meats in their pockets ; and those three were for the plaintiffe , untill they were searched and the sweet-meats found with them , and then they did agree with the other nine , and gave their verdict for the defendant . haughton justice , it doth not appear that these sweet-meats were provided for them by the plaintiffe or defendant ; and it doth not appear that the said three jurors did eat of the sweet-meats before the verdict given : and so i conceive there is not any cause to make void the verdict given ; but the said three jurors are fineable . dodderidge justice , whether they eat or not , they are fineable for the having of the sweet-meats with them , for it is a very great misdemeanour . and now we cannot tell which of the jurors the three were ; and because it was not moved before the jurors departed from the bar , it is now too late to examine the jurors , for we do not know for which three to send for . the nine drew the three which had the sweet-meats to their opinions ▪ and therefore there is no cause to stay judgment : but if the three jurors had drawn the nine other to them , then there had been sufficient cause to have stayed the judgment ; but as this case is there is no cause . and therefore per curiam judgment was given for the defendant according to the verdict . trin. iacobi , in the kings bench . note , it was vouched by george crook , and so was also the opinion of the whole court , that by way of agreement tythes may pass for years without deed , but not by way of lease without a deed. but a lease for one year may be of tythes without deed. trin. iacobi , in the kings bench. . the plaintiffe recovered in debt in the kings bench , and a capias ad satisfaciendum was awarded ; and immediately upon the awarding of the capias the defendant dyed . quaere if in such case an action of debt lieth against the special bail. ( the executors having nothing , a scire-facias doth not lie against the bail. ) and in the common-pleas in that case the court was divided , two judges being against the other two judges . ideo quare . trin. jacobi , in the kings bench. . leonard's case . in a scire facias to have execution of a recognizance , the case was , that a special supplicavit for the peace was directed out of the chancery to a. and b. justices of the peace , and to the sheriffe of the county of &c. to take a recognizance of l. m. & n. for the peace and good behaviour ; and the commission was to a. b. and the sheriff , & cuilibet eorum . the supplicavit was delivered to the two iustices , who took a recognizance from l. but m. & n. could not be found : the sheriffe was afterwards out of his office , because his year of sheriffwick expired . the new sheriffe made a retorn , that m. & n. non sunt inventi in balliva mea ; and also retorned , that a. & b. had taken a recognizance of l. as appeareth per quandam schedulam huic annex . in haec verba &c. this case was argued , and h. . . & . vouched , that if the writ be first delivered to the sheriffe , then he only is for to execute the writ , and retorn the supplicavit : but if it be first delivered to the iustices , then they ought to execute it and retorn it . e. . . a supplicavit is a iudicial writ , and cannot be executed by a deputy ; but a ministerial writ may be executed by a deputy . in this case the succeeding sheriffe did retorn the writ , and it was not directed unto him : and the same being delivered to the chancellor , whether the same should be a record or not was the question . h. . . debt was brought upon an obligation ; the kings serjeant prayed the bond for the king , because that the plaintiffe was a person outlawed . bryan iustice , you ought to bring a writ of detinue to recover the bond , which is a legal course for the king : and so in this case here is no record for the king , because the recognizance comes not in by a legal course , viz. a lawful retorn ; for it was retorned by the new sheriffe , and also by him who did not execute the commission . heath said cleerly , there was no record for the king ▪ and vouched h. . , . note the whole case there . . where it is said , in casu superiori ipse justiciarius qui primo illud breve de supplicavit recepit , tota executione ejusdem brevis tantummodo tenetur , & reliqui sociorum suorum tangent . dictum breve exonerentur , & justiciarius hanc recipiens nomine suo proprio illud retornabit . and in our case it was directed to the sheriffe and iustices ; and being delivered to the iustices , the sheriffe had not to do to make certificate of it , and in this case he is but as a private man. this suit is a scire facias to have execution upon the said recognizance . a dedimus potestatem is directed to two , and one of them doth execute it ; the other cannot certifie it , for the execution of it ought to be upon his own knowledge . a record taken by one cannot be certified by another ; for if it be , it is not any record upon which a scirefacias can be awarded . in our case , the justices made the record , and the sheriffe did certifie it . ley chief justice , when the recognizance is put to writing , or notes of remembrance taken of the recognizance before the commissioners , it is immediately a record . one takes notes of a recognizance , and dyeth . he to whose hands the notes come may certifie the same , for it is a perfect record by the taking of the notes of remembrance : but that is to be understood when no writ is directed to commissioners , but when a justice takes is . in our case the sheriffe may retorn the writ ex officio , and also retorn , that executio istius brevis patet in quadam schedula annexa . and it doth not appear but that the now sheriffe was at the execution of this commission : but admit that he was not , yet now the writ being retorned into the chancery , your pleading and taking issue upon another matter hath made it a good record : and therefore i hold that the judgment ought to be given for the king according to the verdict . haughton justice , judgment cannot be for king : if the record doth not come duly into the chancery according to course of law , it is not any record upon which there can be any procution . if a judge take a fine and dyeth before it be certified , a certiorari ought to be directed to the executors of the judge , v. h. . . but the certiorari ought not to be to a stranger . if two iustices of peace have commission to take a recognizance , and one of them taketh it and dyeth , the certiorari must be to his executors , and not to the other iustice . in this case the record came into the chancery by undue course : the commission was several , cuilibet eorum ; and those who took upon them the execution thereof are now made officers by the express words of the writ ; and it is not so here retorned , and therefore iudgment ought to be against the king. a dedimus potestatem is directed to four to take a fine of lands in several counties : two of them take it in one county , and they certifie it and the two other take it in another county , and they certifie it : none of the certificates are good . dodderidge iustice , iudgment ought to be against the king. there are two questions in the case . . whether the sheriffe , as this case is , may onely make the retorn . . admitting that he cannot , but the same being retorned , and the chancery accepting of it , and sending it to this court , whether we can damn the record . . this is a special recognizance upon the grievance of the party ; and by the kings commission they are made especial iudges in this case : and when the party who sues delivers the same to the two justices , the sheriff cannot entermeddle therewith ; for then the justices ought to retorn the recognizance by vertue of that commission . h. . , . there the case is direct in the point , that they to whom the writ is first delivered , they only are to execute it , and retorn it ; for they only have power by vertue of the special commission . the writ was against three , and two of them are not to be found , the sheriff cannot retorn non sunt inventi , for the two by force of this commission : and he is not to make his retorn as a minister or officer to the other , because the writ is judicial . if a challenge be to the sheriff and coroners , and process is directed to esliors ; they are to execute the process as particular officers , by vertue of the writ , and they are to retorn the same , and not the sheriff , because their authority is by vertue of a special writ . to the . point it hath been said , that the record is in the chancery ▪ and the partie hath pleaded to it to issue , and it is now sent into this court , and now fault is found with it but not before . though all this be so , yet we cannot accept of it here , if it have not due proceedings : if process be directed to the coronors for challenge to the sheriff , and then a new sheriff is made , against whom there is no cause of challenge , yet the coronors must execute and finish the process , and not the new sheriff ; for the law will not endure that offficers do make a mingling of their offices , vi. e. & e. . by hill and herle . for trials out of the chancery : the chancery and kings bench are but as one court , and if the record come not in duely as it should , the court was never well seised of the record . ley chief justice , the coming of the writ to the hands of one or two of the commissioners , shall not stay the commission , but the receipt of the one of them , is the receit of them all having notice of it ; and the others may joyn with him to whom the commission is delivered : so it is in all cases , every one of the commissioners are interessed therein upon notice , and not he only to whom the commission is delivered . if one justice of peace taketh a recognizance , and dieth before it be certified , the certiorari shall be directed to the other justice to certifie it , if it come to his hands , and he may retorn the recognizance , and it shall not be directed to the executors of the iustice , who have not the recognizance ; for the certiorari is but the hand for the court to receive it , for otherwise the king might lose the benefit of the recognizance : and in our case the sheriff by a special commission hath authority to take the recognizance , and to retorn it upon record . one may do part of the office , as to make and take the recognizance , and the other may retorn it ; but one cannot execute a thing in part , and another in another part ; the taking of the recognizance by the two justices , doth exclude the sheriff from medling with the taking or making of it , but it doth not hinder him but that he may retorn it well enough ; and the writ or commission is general , vicecomiti , which may extend as well to the new sheriff as to the old sheriff . the case was adjourned : for by two iudges , the supplicavit and recognizance were not well retorned by the new sheriff ; but ley chief justice was against them . quaere . trin. iacobi in the kings bench. . randal and harvey's case . the case was , harvey , in consideration that brown might go at large , who was arrested at the suit of randal , gave his word that brown should pay the money at such a day certain ; and for non-payment of the money , randal brought his action against harvey , and being at issue upon the promise , it was found for the plaintiff . yelverton moved in arrest of iudgment , that the arrest of brown was not warrantable by law ; and that being the consideration , the promise was void : and he said , a man cannot make another his attorney to arrest another man without deed , neither can the sheriff give warrant to his baylie to arrest another without a deed sealed . and in the principal case , randal gave one a vvarrant to t. being an attorney , to demand , receive , and recover money from brown ; but it did not appear by the declaration , that the vvarrant was by deed in writing . george crook , said that it was no exception ; for , be the arrest lawfull or unlawfull , yet he said the consideration was good . randal gave to his attornie authority to receive , demand , and recover , thereby he gave him authority to arrest brown , because the arrest is incident to the recoverie . r. . grants , one grants to another , all the fish in his pond , he may fish with nets : for when he giveth the principal , the incidents do follow . vvhen brown had yieldded himself to be lawfully arrested ; and then harvey , in consideration that brown might go at liberty , made the promise , the same was good : the declaration was , that randal gave authority to t. being an attorney , to receive , deliver , and recover the debt , by force of which letter of attorney t. did arrest brown ; and so in the declaration it is shewed that the warrant was a letter of attorney , yelverton , h. . in debt upon a recoverie in the ports : if a man will declare and set forth a thing in particular , if he faileth in any thing , it overthroweth his action ; but if a man alledge generally a recoverie in the ports , then the same is good enough . i agree the case of e. . where a man gives leave to another to lay pipes of lead through his lands , that he may dig the ground to lay them there , because it is incident to it . and i agree the case of r. . for there the one thing cannot be done without the other , viz. the fish cannot be taken without nets ; but in this case , the partie might have come by his money by outlawrie , and so there needed no arresting of the partie . ley chief justice , if he had declared debito modo arrestatus , it had been generally good , and it must be intended that the arrest was by vertue of a letter of attorney : for he alledges that he gave him authority to recover ; and then he shall have and use the means to recover , as to arrest the partie , or to outlaw him . haughton justice , things incident and accessary may be comprehended in the principal , as to dig for to mend the pipe e. . because he grants him leave to lay them in the ground ; and so he may dig , and justifie the same for the amending of the pipes . if a. licence b. to hunt in his park , and to kill a deer , yet b. cannot carry away the deer , for that is not incident to the thing granted . in this case the declaration is not good , for he ought to set forth that the vvarrant was by deed in writing ; and yet one may plead a judgment generally , quod debito modo he recovered , and the same is good ; but here in this case he ought to set forth and shew the vvarrant and authority by which he was arrested ; but not so in the case of pleading of a judgment , because there it doth refer to matter of record . dodderidge justice , the promise was to free him from the arrest , and if the arrest was unlawfull , then there was no consideration , and so by consequent the promise was void : it ought to be shewed that brown was lawfully arrest ; and if the arrest had been only matter of inducement , and no cause of the action , then it had been sufficient to have said debito modo arrestatus , but in this case the arrest it self is material ; and the plaintiff hath shewed that the arrest was ( per debitum legis cursum ) by vertue of a vvarrant of attorney , and it doth not appear but that it was a letter of attorney to deliver seisin : and so because the plaintiff hath not shewed the arrest to be lawfull , there was no good consideration whereupon to ground the promise , and so no cause of action . yelverton took another exception , viz. that the plaintiff doth not shew that the arrest was per breve regis , or how it was . chamberlain justice , if the partie had brought an action of false imprisonment , this plea had not been good , and in this case there appeareth to be no good consideration , for it doth not appear that it was a lawfull arrest , for no time is shewed , nor no place , nor how it was done . ley , the jury have found it to be debito modo , and in this case the arrest is not in question by matter of plea , but by declaration , and the finding of the jury hath made the same to be good . dodderidge justice , if a. be indebted to b. b may have either an action upon the case , or an action of debt for the money ; but in an action of debt , unless it be in london by the custome , concessit solvere is no good plea : but in an action upon the case , the plaintiff may declare , that whereas a. was indebted to him in a certain sum of money , that concessit solvere , and there he needeth not to shew how he became indebted unto him , as he ought to do in an action of debt . chamberlain justice , if a man be arrested upon a void arrest , and another in consideration of setting him at liberty doth promise to pay the debt , there it is a thing collateral , and an action will lie : but if the arrest cometh in question , then in that case the action will not lie , but he may avoid it by special pleading ; for the arrest being unlawfull , there is no consideration whereupon to ground the promise . yelverton , if the plaintiff had said in the declaration , that in consideration that he would forbear his debt , that he would pay , &c. there for not payment , the action would have been maintainable : but in this case , the consideration is the setting him at liberty , and so it is collateral . at another day , ley chief justice , if i arrest a man generally , and the party promise for the discharge of the arrest , to give l. it is no good consideration , if i do not shew that he had cause to arrest him ; for if the arrest be upon an ill ground , the consideration is not good . haughton justice , to make it a lawfull arrest , the partie ought to shew the process , the letter of attorney , and the proceedings ; and an agreement afterwards made , will not make the arrest good . legitimo & debito modo arrestatus is too general ; for he ought to shew how he became indebted to him : for if i be bounden to make unto i. s. a lawfull assurance or conveyance of such lands , it is too general for me to say that i have made him a lawfull assurance ; but i ought to shew what manner of assurance it is , that the court may judge whether it be a lawfull and good assurance or not . in mich. term followinging jacobi , it was adjudged , that judgment should be arrested . trin. jacobi , in the kings bench. intratur , mich. . rot. ● . seignior and wolmer's case . in an action upon the case upon an assumpsit , the declaration was general , that the defendant assumpsit to the plaintiff ; and the jury found that the promise was made to i. n. who seignior the plaintif sent and appointed ad componendum & agreandum the debt of wolmer the defendant . it was argued , that the promise made to the servant , was a promise to the master . vi. ● e. . where the sale of the servant is the sale of the master . h. . in trespas , the defendant said that the prior of &c. was seised , &c. and that such a one his steward made a demise unto him ; there it was ruled that he ought to have pleaded that the prior did demise , v. h. . jorden and tatams case , which is express in the point : jorden brought an action upon the case against tatam , and declared that he did assume to him ( as the words of the book are . ) the evidence was , that tatam came in the absence of jorden the husband , and assumed to the wife of jorden , ( and our case is a stronger case then that , for there the husband gave no authority to the wife to take such assumpsit ; but in our case he did authorize i. n. ) and it was adjudged that the agreement of the husband afterwards , made the assumpsit to be good to the husband : but in our case , i. n. had authority to take the assumpsit , viz. seignior sent i. n. ad componendum & agreandum the debt : and wolmer assumed to pay the money , &c. and i. n gave notice thereof to seignior , and he agreed unto . dodderidge justice , an assumpsit to the servant for the master , is good to the master : and an assumpsit by the appointment of the master of the servant , shall bind the master , and is his assumpsit . ass . if my baily of my mannor buy cattel to stock my grounds , i shall be chargeable in an action of debt : and if my baily sell corn or cattel , i shall have an action of debt for the money ; for whatsoever comes within the compass of the servants service , i shall be chargeable with , and likewise shall have advantage of the same . if a servant selleth a horse with warranty , it is the sale and contract of the master , but it is the warranty of the servant unless the master giveth him authority to warrant it , for a warranty is void which is not made and annexed to the contract ; but there it is the warranty of the servant , and the contract of the master : but if the master do agree unto it after , it shall be said that he did agree to it ab initio . as where a servant doth a disseisin to the use of his master , the master not knowing of it , and then the servant makes a lease for years , and then the master agrees , the master shall not avoid the lease for years ; for now he is in by reason of his agreement ab initio . when the servant promiseth for the master , that the master shall forbear to sue . &c. and shall by such a day deliver to the defendant the obligation , &c. and the defendant promiseth to pay the money at such a day ; and the master having notice thereof agreeth to it , it is now the promise of the master ab initio , for it is included in his authority that he should agree , compound , &c. and he hath power to make a promise . judgment in the principal case was given for the plaintiff . trin. jacobi , in the kings bench. intratur , pasch . . rot. . . gleede and wallis case . a writ of error was brought to reverse a judgment given in the court of northampton in an action upon the case , upon a promise : the error which was assigned was , because that it appeareth that the action was brought before the plaintiff had made request . the case was , a contract was made betwixt gleede and wallis , and wallis was to pay to gleede l . when gleede should require him . gleede brought an action in the said court martii , jacobi ; and the request is laid to be martii jacobi following . where a contract is made , and no time is expressed for payment of the money , if the partie bring his action before he make his request , he shall not have damages ; but if he maketh an actual request , and the defendant doth not pay the money , there he shall recover damages besides the dutie : here the action was brought before the request made , and so no damage to the plaintiff ; and the judgment was , that the plaintiff recuperet damna predict , viz. the damages laid in the declaration . dodderidge justice , the judgment ought to be consideratum est quod gleede recuperet damna quae sustinuit , and not damna predict , which are mentioned in the declaration , and then a writ is awarded to enquire of the damages quae sustinuit . the judgment was reversed per curiam . mich. caroli , in the kings bench. rot. . . taylor and hodskin's case . in an ejectione firme upon a special verdict it was found , that one moyle was seised of divers lands in fee , holden in socage ; and having issue four daughters , viz. a , b , c , & d. a. had issue n. and died : and afterwards moyle devised the said lands unto his wife for life , and after her decease , then the same equally to be divided amongst his daughters or their heirs : moyle died , and afterwards his wife died ; and hodskins in the right of b , c , & d. three of the daughters , did enter upon the lands ; n. the daughter of a. married f. who entred and leased the lands to the plaintiff taylor . whitfield for the plaintiff , the only point is , whether n. the daughter of a. one of the sisters shall have the fourth part of the lands or not , by reason of the word ( or ) in the will. it is apparent in our books , c. . part , the chancellor of oxfords case . c. . part , butler and bakers case , that wills shall be construed and taken to be according to the intent of the devisor : and therefore br. devise . a devise to one to sell , to give , or do with at his will and pleasure , is a fee-simple . and in our case if n. shall not take a fourth part , the word ( heirs ) should be of no effect . c. . part in shellies case , all the words in a deed shall take effect , without rejecting any of them ; and if it be so in a deed , à fortiori in a will , which is most commonly made by a sick man who hath not councell with him to inform or direct him . in this case the three sisters who were living at the time of the devise , took presently by way of remainder ; and the word ( heirs ) was added only to shew the intent of the devisor , that if any of the three sisters had died before his wife , that then her heir should take by discent , because her mother had taken by purchase . and by reason of the word ( heirs ) the heir of a. shall take by purchase ; and the disjunctive word ( or ) shall be taken for ( and ) as in mallories case , c. . part . a reservation of a rent to an abbot or his successors ; there the word ( or ) shall be taken for ( and ) reddendo singula singulis . trin. . jacobi , in the common pleas , arnold was bound in a bond upon condition , that he suffer his wife to devise lands of the value of l . to her son or her daughter ; and she devised the lands to her son and her daughter : and it was resolved that it was a good performance of the condition . and there the word ( or ) was taken for ( and ) : and there justice warburton put this case ▪ if i do devise all my goods in dale or sale , it shall be a devise of all my goods in both places ; and ( or ) shall be taken for ( and. ) in this case the word ( heirs ) was not added of necessity for the heir of any of the sisters to take by purchase ; but only to make the heir of a. to take part of the lands . the court was of opinion that it was stronger for the plaintiff to have it ( or ) in the disjunctive ; for they said that if it were ( and ) then it would give the three sisters the fee , and not give the heir of a. a fourth part ; but being ( or ) there is more colour that she shall take a fourth part by force of the devise . it was adjourned . trin : caroli , rot ▪ . in the kings bench. . ashfield and ashfield's case . the case was , an enfant copyholder made a lease for years by word , not warranted by the custome ▪ rendring rent ; the enfant at his full age was admitted to the copyhold , and afterwards accepted of the rent : the question was , whether this lease , and the acception of the rent should bind , or conclude the enfant . crawley serjeant argued , that it was a void lease , and that the acception should not bar him . it is a ground in law , that an enfant can do no act by bare contract by word , or by writing can do any act which is a wrong either to himself or unto another person , or to his prejudice . in this case , if the lease should be effectual , it were a wrong unto a stranger , viz. the lord , and a prejudice unto himself , to make a forfeiture of the inheritance . if an enfant commandeth a. to enter into the land of i. s. and afterwards the enfant entreth upon a. a is the disseisor and tenant , and the enfant gaineth nothing . so if a ▪ entreth to the use of the enfant , and the enfant afterwards agreeth to it , in this case here is but a bare contract ; and an agreement will not make an enfant a disseisor : no more shall he be bound by a bare deed , or matter in writing without livery . h. . . an enfant granteth an advowson , and at full age confirmeth it , all is void . br. releases . two joynt-tenants , one being an enfant releaseth to his companion , it is a void release . e. . . an enfant makes a lease without reserving rent , or makes a deed of grant of goods , yet he shall maintain trespass ; nay though he deliver the goods , or lease with his own hand , the same will not excuse the trespass , nor will it perfect the lease , or make the grant of the goods good . if the contract have but a mixture of prejudice to the enfant , it shall be void . ● jacobi in the kings bench , bendloes and holydaies case . an obligation made by an enfant with a condition to pay so much for his apparel ; because the bond was with a penaltie , it was adjudged void . if tenant at will make a lease for years , he was a disseisor at the common law , before the statute of west . . cap. . e. ▪ . tenant at will makes a lease for years ▪ e. . . e. . . but if an enfant be tenant at will , and he maketh a lease , he is no disseisor . in our case , if he had made livery , then i confess it had been a defeisible forfeiture , and he mignt have been remitted by his entrie upon the lord. farrer for the plaintiff , the lease is not void , but voidable e. . . brian . e. . . h. . . an enfant makes a lease for years , and at full age accepts of the rent , the lease is good , because the law saith that he hath a recompence . com. . a lease for years , the remainder for years rendring rent by an enfant , and afterwards at his full age he accepts the rent of the particular tenant , it is a good comfirmation of the estate of him in the remainder . litt. . if he at full age confirm , it is good ; which could not be if the lease were void : and yet in that case it doth not appear that there was any rent reserved : the enfant being a copyholder makes no difference in the case . and in murrels case , c. . part , it is said , that if a copyholder make a lease not warrantable by the custome , it is a forfeiture , which proves it is a good lease , otherwise it could not be a forfeiture . hill. eliz. in the kings bench , rot. . east and hardings case . a copyholder makes a lease for three years by word , to begin at michaelmas next ensuing ; it is a forfeiture of the copyhold , and a good lease betwixt the parties . hill jacobi , haddon and arrowsmiths case one licensed his copyholder for life , to make a lease for . if he should so long live ; and he made a lease for years , and left out the words ( if he should so long live ) yet because he was a copyholder for life , and so the lease did determine by his death , and so he did no more then by law he might do , it was adjudged a good lease , and no forfeiture ; otherwise if he had been a copyholder in fee. all conditions in fact shall bind an enfant , but not conditions in law. c. . part . whittinghams case , an enfant , tenant for life or years , makes a feoffment in fee , it is no forfeture ; for if the lessor entreth , the enfant may enter upon him again ; yet it is a good feoffment , but he shall avoid it by enfancy ; but if it be by matter of record , then it is otherwise : for if an enfant be lessee for life , and levieth a fine , it is a forfeiture ; and in that case if the lessor enter for the forfeiture , the enfant shall not enter again . the same law if an enfant committeth waste which is against a statute , it is a forfeiture ; and if the lessor recovereth the place wasted , the enfant shall not enter again . h. ▪ . a woman an enfant , who hath right to enter into lands , taketh a husband , and a discent is cast , yet she shall avoid the discent after the death of her husband . the court said , that if in the case at barr the enfant had been tenant in fee at the common law , and made a lease without deed , and had accepted the rent at his full age , that the same had been good , for that there he had a recompence ; but being a copyholder it is a question . jones justice , it was adjudged in the common pleas in peters case , that if a copyholder without licence maketh a lease not warranted by the custome , that such lessee should maintain an ejectione firme . the councel against the enfant in the case at barr said , that the enfant made the lease as tenant by the common-law , for that he made it by conveyance of the common-law : and so the lease was voidable , and not void ; and then the acceptance of the rent had made the lease to be good . it was adjourned to another day . hill. . caroli , rot. ▪ in the kings bench. . george busher against murray earl tillibarn . a scire facias was brought dated junii retornable in mich. term car. regis , why execution should not be awarded against the defendant upon a iudgment had against him in this court. the defendant pleaded , that king charles , octob. in the second year of his reign , did take him into his protection for a year , and did grant unto him that during that time he should be free from all manner of plaints but dower , quare impedit , and placit . coram justiciariis itinerantibus . it was said that this protection was not warrantable by law for three causes . . because it is after the purchase of the scire facias , and before the retorn . h. . . h. . . a protection depending the suit is not allowable , although it make mention that the party is to go a voyage with the kings son. . because he doth not specifie any particular cause why the protection was granted unto him . all our books do express a cause , viz. quia moratur &c. quia profecturus &c. register , . there three protections are quia incarceratus . h. . , , . per curiam , the protection ought to express a special cause , otherwise it is not good . fitz. . a. b. the cause is expressed . . r. . cap. . the particular cause ought to be in the protection . a protection being general , the party hath no remedy against him to traverse it , or to procure it to be repealed . . this court is greater then a iustice in eyre , and he is excepted in placitis itinerantibus . that court was of opinion that there was no colour for allowing of the protection . a safe-conduct will only keep the party safe from harm , but will not protect him from actions . mich. caroli , intratur pasch . . jur. rot. . in the common pleas. . royden and moulster's case . in trespass for entring into his close called dipson in suffolk , upon not guilty pleaded , the jury gave a special verdict , that the said close was parcel of the mannor of movedon , and demisable by copy of court-roll ; and that the same was granted to g. starling in fee by copy of court-roll , who had issue two sons , john and henry : and that eliz. george starling did surrender the same to the use of his will , and thereby demised the same to john and the heirs males of his body , with divers remainders over , and dyed seised : and that the surrender was presented according to the custom ; and that john was admitted to have to him & his heirs ; and that the said john had issue sons , harry , george and nicholas ; and that the said john eliz. did surrender to the use of his will and thereby devised the same to katherine his wife and dyed , and that the said surrender martii t eliz. was presented , and the said katherine was admitted : harry , george and nicholas dyed without issue . they further found , that the custom of the mannor is , that the youngest brother is to have the copyhold by discent . and also that no copyholder by the custome could make any estate in feodo , and that the said katherine took to her husband francis robinson , who sept , iacobi leased the same to royden the plaintiffe for one year , who entred and was thereof possessed , untill moulster the defendant by the commandment of &c. did out him &c. in which case , the only question was , whether a copyhold be within the statute of west . . so as an estate thereof so limited should be a fee tail , or a fee conditional and by the opinion of the justices of the common-pleas it was adjudged , that a copyhold could not be entituled within the statute of west . . first they said , that copyholds are not within the letter of the statute , which speaks onely de tenementis per chartam datis , &c. secondly , they are not within the meaning of it : . because they were not untill e. . . of any accompt in law , because they were but estates at will. . the statute of west . . provides against those who might make● a dissen heresin by fine or feoffment , which copyholders could not do . . because if copyholders might give lands in tail by the statute , then the reversion should be left in themselves , which cannot be , . the makers of the statute did not intend any thing to be within the statute of donis whereof a fine could not be levied ; for the statute provides quod sinis ipso jure sit nullus . . great mischiefs would follow , if copyholds should be within the statute of west . . because there is no means to dock the estate , and no customary conveyance can extend to a copyhold created at this day . eliz ▪ lane and hills case adjudged in the common-pleas was cited by justice harvey , where a surrender was unto the use of one in tail , with divers remainders over in tail : the first surrenderee dyed without issue ; and first it was agreed and adjudged , that it was no discontinuance . . if it were a discontinuance , yet a formedon in the remainder did not lie , because there ought to be a custom to warrant the remainder as well as the first estate tail : for when a copyholder in fee maketh such a gift , no reversion is left in him , but only a possibility ; and the lord ought to avow upon the donee , and not upon the donor . and there is a difference when he maketh or giveth an estate of inheritance , and when he maketh a lease for life or years ; for in the one case he hath a reversion , in the other not . . a recovery shall not be without a special custom , as it was agreed in the case of the mannor of stepney , because the warrantie cannot be knit to such an estate without a custom . and for express authority in the principal case he cited pits and hockle●'s ase , which was ter : pasc . eliz. rot . . in the common-pleas ; where it was resolved , that copyholds were not within the statute of donis for the weakness and meanness of their estates : for if they were within the statute of west . . the lord could not enter for felony , but the donor ; and the services should be done to the donor , and not to the lord of the mannor . and so , and for these mischiefs he conceived , that neither the meaning nor the words of the said statute did extend to copyholds . hill. eliz. rot. . in the kings bench , stanton and barney's case . a surrender was made of a copyhold within the mannor of stiversden unto one and the heirs of his body ; and after issue he surrendred unto another : and it was agreed by all the justices , that the issue was barred . and popham did not deny that case , but that it was a fee conditional at the common-law and that post prolem suscitatam he might alien . and so it was agreed in decrew and higdens case , trin. . eliz. rot . ● . in the kings bench ; and in erish and ives case & eliz. in the common-pleas , in an evidence for the mannor of istleworth that no estate tail might be of ▪ copyhold without a custom to warrant it . mich. & eliz. in the kings bench it was adjudged , that a copyholder could not suffer a common recovery ; and the reason was , because that the recovery in value is by reason of the warrantie annexed to the estate at the common-law , which could not be annexed to a customary estate : and another reason was given , because that he who recovers in value , shall be in by the recovery , and the copy of the court-roll only should not be his evidence , as littleton and other books say it ought to be . and crook said , that the statute of donis was made in restraint of the common-law . and it should be very disadvantagious to the lord , if copyhold should be construed to be within that statute . and therefore he conceived that the said statute did not extend to copyholds by any equitable construction . and such difference was taken by popham chief justice , eliz. in the kings bench , rot . . in baspool and long 's case : for he said , that a custom which did conduce to maintain copyholds , did extend to them ; but a statute or a custom which did deprave or destroy them , did not . as if one surrender to the use of one for life , the remainder in fee , where the custom is to surrender in fee , the custom doth not extend thereunto , because a custom which goes in destruction of a copyhold shall be taken strictly . but if a man be copyholder in fee , he may grant a fee conditional . harvey justice put some cases to prove the small account the law had of copyholds at the time of the making of that statute , as e. . . h. . br . copyhold . and he said , that there is not any book in the law but only mancels case in plow . comment . that the statute of west . . doth extend to copyholds . hill. caroli , rot . in the kings bench. . litfield and his wife against melherse . a writ of error was brought upon a judgment given in an action upon the case brought by husband and wife in the common-pleas for words spoken of the plaintiffs wife : and the judgment in the common-pleas was , that the husband and wife should recover . and that was assigned for error in this court , because the husband only is to have the damages ; and the judgment ought to be , that the husband alone should recover . but notwithstanding this error assigned , the judgment was affirmed by the opinion of the whole court. pasch . caroli , rot . . in the kings bench. holmes and wingreeve's case . a writ of error was brought to reverse a judgment given in the court at lincoln , in an action of trespass there brought for taking away a box with writings . and four errors were assigned . . because the plaintiffe did not appear by attorney or in person at the retorn of the attachment against the defendant ; so as there was a discontinuance , for the plaintiffe ought to appear de die in diem . . because in his declaration there he saith , that the defendant took a box with writings , and doth not make any title to the box , nor shews that the same was lockt , nailed , or sealed . h. . . a. the certainty of the writings ought to be shewed , that a certain issue may be taken thereupon . com. . h. . . h. . . e. . he ought to shew the certainty of the writings . h. . charters in a box sealed . c. . part , bedingfields case . c. . part , playters case ; the declaration was insufficient , because the plaintiffe therein did not name the certain number of the fishes . . he pleaded , that he made a bill obligatory , and doth not shew that it was delivered . dyer . per scriptum suum gerens datum , and doth not say primò deliberatum , is not good . the fourth error was , that in the replication the plaintiffe saith ( dixit ) whereas it ought to be dicit in present tense . h. . . the title to the assise took exception to the plaintiffs title , because that he said ( fuit seitus ) of a messuage , whereas he ought to have said ( est seitus ) but yet it was there holden good , because he saith , that all those whose title he hath , &c. by which words the possession shall be intented to continue . h. . . . vi . . a writ a false judgment directed to the sheriffe , recordare loquelam ( que est ) and the form , and the presidents are ( quae fuit ) h. . . the sheriff retorns non est ( inveni ) whereas it ought to be ( nom est inventus ) and adjudged error . and he said , that detinue is only to be brought when it self is to be recovered in as good plight , and no other action . it doth appear by the record , that in this case at trial were only retorned upon the pannel , wheras there ought to have been retorned . by the statute of west . . cap. . ought to be retorned on the pannel . h. . . more then . shall not be retorned . h. . . the sheriffe retorned but . and it was ruled to be an insufficient retorn , because ought to have been retorned . h. . . trespass is brought for a box and charters which concerned the plaintiffs lands , and damages were given entirely ; and there it was adjudged not to be good , because the plaintiffe did not make any title to the box , nor did shew that the same was locked or sealed : for the box may belong to one , and the charters to another , as the evidences to the heir , and the box to the executors , unless the box be first locked . note , the opinion of the whole court was , because that the issue was particular , that he was not guilty of the trespass and detaining untill the plaintiff had entred into a bond. and the jury found him guilty of the trespass generally , that the verdict was not good to make the defendant guilty by implication . and justice dodderidge said , that the plaintiff hath brought his action of trespass , and doth not lay any possession of the box ; and trespass is a possessory action . also he said , that the plaintiff did not set forth the quality of the evidences , viz. whether they were releases , deeds of feoffments , or other particular evidences . and for these causes , and for the causes before alleadged , the judgment given in the court at lincoln was reversed . pasch . caroli , in the kings bench. . sir william fish and wiseman's case . judgment was given in the common-pleas against sir william fish ; and after the year and day execution was awarded by capias , where it ought to have been by a scire facias first : and the plaintiff was taken in execution , and brought a writ of error in this court , where the judgment was affirmed ; but the execution was reversed , because the execution was not warrantable , the process being erronious . and out of the kings bench another execution was awarded by capias sicut alias , within the year of the affirmance of the judgment in the kings bench. and it was moved by banks , that the execution was erronious , because he ought to have a scire facias , because the year is past after the judgment in the common-pleas ; and although that the court be changed , yet the plaintiffe ought to have the same process for execution as he ought to have in the first court. h. . . the first process was reversed for error ; and then he cannot have a sicut alias , but ought to have a new original . we pray a supersedeas of the execution for sir william fish the plaintiffe , and that he may be delivered out of execution . sir william fish had a release , and that was the cause that wiseman would not take a scirefacias . sir william fish upon the judgment in the common-pleas was taken in execution ; and upon a writ of error brought , bail was put in to proceed with effect , and then he was delivered out of execution ; and then he cannot now be taken in execution again upon the same judgment . h. ▪ . per curiam , if one be in execution upon condemnation in the common-pleas , and the record and the body is removed into the kings bench by error ; then the party shall find collateral securities by their recognisance to pay the condemnation in case the judgment be affirmed , and further to proceed with effect . in this case the body is discharged of execution as to any process to take the body , unless he render himself to prison of his own accord to discharge his sureties : and if he will not do it , he who recovereth hath no remedy but to make the sureties to pay the condemnation by reason of their recognisance . e. . . a man is condemned in london tempore vacationis , and hath execution in the term ; and the defendant sueth a corpus cum causa , and had his priviledge in the common-pleas . danby , the plantiffe shall not have debt , for at the beginning when the defendant was in execution , the action of debt was gone ; and then he being discharged , here the action of debt doth not lie . to which needham agreed . and choke said , he did not know any remedy that the party had , and conceived that he could not have a new execution . h. . . if one escape out of execution , the plaintiffe cannot take him again in execution , but his remedy is against the gaoler . the court may supersedeat this execution , because it is erronious : h. . . b. an action of debt was brought against an executor , who pleaded that he had fully administred ; and it was found that he had assets , and judgment was given against the defendant , and a capias was awarded against him , and after that an exigent : and the court granted a supersedeas , to supersede that erronious process ; for a capias doth not lie against an executor where he pleads , &c. but a fieri facias . and therefore in the principal case banks prayed a supersedeas . jones justice , if error be brought within the year of the judgment in the common-pleas , and the judgment be affirmed here , the party shall have a capias although the judgment be affirmed two years after the bringing of the writ of error : for he shall take the same execution in the kings bench , as in the common-pleas ; and the altering of the court makes no difference in it . and so was garnon's case : the writ of error was brought within the year of the judgment in the common-pleas , but it was not affirmed in two years after , and yet there he had the same process in the kings-bench as he was to have had in the common-pleas . dodderidge justice ▪ if the execution be lawfull and upon lawfull process , and the party be delivered out of execution , then he shall not be taken again in execution : but if he be taken in execution upon an erronious process , if he be delivered out , he may be taken again in execution ; for the first execution was erronious , and is no record being reversed . hyde chief justice , if a man recover in debt upon an obligation , and the judgment be reversed by error , he is restored to his first action , and may plead nul tiel record . dyer , . triwingards case , a man in execution had a vvrit of priviledg out of the parliament ; upon which the sheriff sets him at liberty by law for a time , yet he shall be in execution again , and the law saves the others right . broome secondarie of the kings bench , if error be brought after the year of the judgment in the common pleas , and the judgment be affirmed here , the partie may take forth a capias within the year of the judgment affirmed ; although in the common pleas he cannot have a capias , because the year is past : for we are not to respect what process he ought to have in the common pleas ; but after the year of the judgment affirmed here , the partie is to have a scire facias . jones justice said , that when he was a reporter , the judges delivered their opinions in garnons case , c. . part . that if after the year and day he bring error , and the judgment be affirmed , that he ought to have the like process here as in the common pleas : and that was a scire facias , because that the year was past in the common pleas , although it were within the year of the judgement affirmed here . dodderidge justice , the cases which banks cited are law , but are not well applyed . the whole court was of opinion , that if the common pleas award erronious process , the court cannot award a supersedeas ; but the partie is put to his vvrit of error here : and upon that erroneous process we cannot grant a supersedeas , but the partie is put to his new vvrit of error . and according to the opinion of the court , sir william fish brought a new vvrit of error . mich. caroli , rot. ▪ in the kings bench. . bellamy and balthorp's case . in an action of trover and conversion , the plaintiff did lay it , that he was possessed of twenty loads of wheat , and that he lost them , and that they came to the defendants hands , who converted the same to his own use . the defendant did justifie and said , that the parish of o. is an ancient parish , in which there is a rectorie impropriate , &c. and the earl of clare was seised of the rectorie , and made a lease unto him of the tythes of that parish for one year , by force of which he was possessed ; and that the corn was set forth by the parishoners , and that one t. gathered the tythe , and delivered the same to the plaintiff , and that the defendant his servant took away the tythe as it was lawfull for him to do : upon which the plaintiff did demurr ; first because the plea did amount to no more then the general issue , viz. not guilty : and if the plea do amount to no more then the general issue , then it is no good plea ; but he ought to have taken the general issue . h. . . ass . for if in an assise the tenant saith that the plaintiff did disseise him , and that he entred upon him , the plea is not good , because it amounts but to the general issue , viz. nul lort nul disseisin , and the other party may demurr upon it . e. . . in trespass for batterie , it is no plea to say that he did not beat him , because it is but not guilty by argument . h. ▪ . b. if i bring trespass for breaking of my close , it is no good plea to say that i have no close ; or if it be for carrying away my goods , to say that i had not any goods ; but the party ought to have pleaded not guilty . it may be objected , that in this case the defendant makes title to the corn. to that we say , he derives a title to tythes without a deed , which gives no title to them ; for tythes do not pass by demise alone without deed ; but by the demise of the rectorie without deed they will pass : so by a feoffment of a mannor without deed the services will pass ; but the services alone will not pass without a deed. h. . . h. . . a warren may be demised without deed. e. . . but the profits of courts will not pass without deed. h. . . b. by way of contract a demise may be of tythes without deed , but in pleading it ought to be set forth that there was a deed. c. . part . where the deed ought to be shewed ; which proves that there ought to be a deed. in the common-pleas in an action of trover and conversion of certain goods , the defendant said , that a. was possessed of them , and made him executor , &c. and the plaintiff did demurre , and had judgment , because it amounted but to the generall issue . dodderidge justice ; the parson may demise his tythe to the owner of the land without deed ; but he cannot grant them to a stranger without deed. if the defendant make title from a stranger , then it doth amount to the generall issue ; but if both plaintiff and defendant make title from one person or donor , then the plea is a good plea. otherwise , per curiam , it doth amount to the generall issue . but the opinion of the court was , because that the defendant did make a title of tythes without a deed ; therefore judgment in the principall case was given for the plaintiff . trin. caroli , in the kings bench. . the dean and chapter of carlisle's case . a writ of error was directed unto the city of carlisle , to remove the record of a judgment given there in curia nostra , whereas the judgment was given tempore jacobi : and the opinion of the court was , that it was not good , nor the record thereby well removed . dy●r . eliz : b. there was a certiorari to remove a record cujusdam inquisitionis capt . &c. in curia nostra ; whereas in truth it was taken in the time of the predecessor of the king , and so thereby the record was not well removed . dodderidge justice , if a writ of error doth abate upon the plea to the writ , and the record be well removed , the partie may have a new writ of error , coram vobis residet , &c. but if the record be not well removed , as in this case at barr it is not , then the partie shall not have a new writ of error here . we do many times grant a scire facias to sue forth execution in the inferior court , which proves that the record by an ill and insufficient writ of error is not removed , but doth remain there still . if there be variance betwixt the record and the vvrit of error , the record is not well removed ; but if the vvrit of error want only form , but is sufficient for the matter in substance , the vvrit shall not abate , but the partie may have a new vvrit of error coram vobis residet , &c. trin. caroli , in the kings bench. . mill's case . action upon the case for these words , thou hast coyned gold , and art a coyner of gold ; adjudged the action will not lie , for it may be he had authority to coyn ; and words shall be taken in mitiori sensu ▪ pasch . car ▪ in the kings bench. . brooker's case . the question was , vvhether the feoffee of the land might maintain a vvrit of error to reverse an attaindor by vtglary : and the case was this , william isley seised in fee of the mannor of sundridge in kent , had issue henry isley , who was indicted of felony eliz. and . eliz. the record of the indictment was brought into this court ; and thereupon eliz. henry isley was outlawed , william isley died seised , henry isley entred into the mannor and land as son and heir , and being seised of the same , devised the mannor and lands to c. in fee , who conveyed the same to brooker , and brooker brought a writ of error to reverse the outlawry against henry isley . holborn argued for the king , and said that brooker was no way privy to the attaindor of henry isley , but a meer stranger , and therefore could not maintain a writ of error ; and first he said , and took exception , that he had not set himself down terre-tenant in possession . secondly , he saith in his writ of error , that the mannor and lands descended to henry isley as son and heir , when as he was attainted . the third exception was , that he saith that henry isley did devise the lands , and that he could not do because he was a person attainted . fourthly , he said that brooker was not tenant so much as in posse . h. . . if it were not for the words of restitution , the partie could not have the mean profits after the judgment reversed . ass . . lessee for years pleaded to a precipe , and reversed it ; the question was , whether he should be in statu quo ? vi . librum , for it is obscure . if this attaindor of henry isley were reversed , yet it cannot make the devise good ; for there is a difference betwixt relations by parliament which nullifie acts , and other relations . vi. h. . sentlegers case , petition . the violent relation of acts of parliament . if a bargain and sale be , the inrollment after will make acts before good ; but a relation by common law , will not make an act good , which was before void . c. . part , butler and bakers case , a gift is made to the king by deed enrolled , and before the enrollment the king granteth away the land , the grant is void ; yet the enrollment by relation makes the lands to pass to the king from the beginning . admit in this case that brooker were terre-tenant , yet he is not a party privy to bring a writ of error to reverse the attaindor of him who was tenant of the land ; and i have proved , that although the attaindor were reversed , yet he hath nothing , because the devise was void , and is not made good by relation . it is a rule in our books , that no man can bring a vvrit of error but a partie or privy . e. . . e. . , . h. . . b. ass . : c. . part , in the marquiss of winchesters case , the heir of the part of the mother cannot have the vvrit of error , but the heir of the part of the father may . so if erronious judgment be given in the time of profession of the eldest son , and afterwards he is dereigned , he shall have the writ of error . in h. . . the heir in special taile , or by custom , cannot have error : but yet m. eliz. in sir arthur henninghams case it was adjudged , that the special heir in tail might have a writ of error : the baile cannot maintain a writ of error upon a judgment given against the principal , because he was not privy unto the judgment , therefore it shall be allowed him by way of plea in a scire facias . i never find that an executor can have error to reverse an attaindor ; but for the misawarding of the exigent , marshes case was cited , c. . part . fitz : . feoffee at the common law could not have an audita quaerela , in regard he was not privy . ass . . . ke●laway . there the terre-tenant brought a writ of error in the name of the heir , and not in his own name . h. . dyer . there it is said , that he who is a stranger to the record shall have error . to that i answer , that he in the reversion , and the particular tenant , are but one tenant ; for the fee is demanded and drawn out of him : but in the principal case at barr , no land is demanded , but a personal attaindor is to be reversed . also there it is put , that if the conusee extend before the day , there it is said that the feoffee may have error . ass . . e. . . fitz. . to that i answer , that the feoffee is privy to that which chargeth him , for the land is extended in his hands ; and if the feoffee there should not have a writ of error , the law should give him no manner of remedy ; for there the conusor himself cannot have error , because the lands are not extended in his hands . also it is there said , that the feoffee brought a scirefacias against him who had execution of the land. to that i answer , that that is by special act of parliament . also there it is said , that if the parson of a church hath an annuity and recovereth , and afterwards the benefice is appropriated to a religious house , the soveraign of the house shall have a scirefacias . i answer , that in that case he is no stranger , for that he is perpetual parson , and so the successor of the parson who recovered . h. . . there a recovery was against a parson , and there pollard said that the patron might have error . i answer , that pollard was deceived there ; for it is said before that the parson hath but an estate for life , and then he , viz. the patron is as a recoverer who shall have a writ of error . dyer . but the parson hath the fee , and therefore pollard was mistaken as it appeareth by brook fauxi fier de recovery . h. . ▪ newton , a false verdict is had against a parson , the patron cannot have an attaint : there is a difference if one be partie to the writ , although not partie to the judgment . error . a quare impedit was brought by the king against the patron and the incumbent , and judgment only was had against the patron and the incumbent parson brought a writ of error ; but if he had not been partie to the writ , he could not have maintained error . so in attaint , the partie to the writ , though not to the judgment , shall have attaint . e. . b. . but if he be not partie to the writ , he shall not maintain . attaint ; as if he pretend joynt-tenancy with a stranger who is not named , and the verdict pass against him , he shall not have attaint . but jones justice said that he might have attaint . admit the first feoffee , viz. c. might have a writ of error , yet brooker in this case cannot because he is the second feoffee ; and a writ of error is a thing in action , and not transferable over . c. . part , the marquiss of winchesters case . c. . part , albanies case . one recovers against a. who makes a feoffment to b. neither the feoffee nor feoffor shall have error , for he , viz. b. comes in after the title of error , and the feoffor shall not have the writ of error , because he is not a partie griev'd . eliz. in the common pleas. sherrington and worsleys case , sherrington had judgment against worsley , and afterwards acknowledged a statute to b. sherrington sued forth execution , b. brought error upon the judgment , and it was adjudged that it would not lie ; first because he was a stranger , secondly because he came in under and after the title of error . see the reason c. . part , the marquiss of winchesters case , where it is said that a writ of error is not transferrable . this attaindor doth not work upon the land ; and so it doth not make the terre-tenant privy , but it works upon the person and blood of henry isley , the land is not touched : for henry isley was attainted in the life of his father , and so it did not touch the land. for if henry isley had died without issue in the life of his father , the youngest son should have had the land by discent ; which proves that it works not upon the land , but upon the person . bankes for the plaintiff , and he desired that the outlawrie might be reversed : as this case is , there is no other person who can maintain error . henry isley had his pardon before the outlawrie , but he came not in to plead it ; and now having enjoyed it so long a time , we hope a purchasor shall be favoured before him who beggs a concealed title . the first exception was taken : to the devise by a person attainted . i answer , that that is but the conveyance to the writ of error . secondly it was said , that none but privies or parties could maintain error ; and the adverse partie would disable the heir on the part of the mother , and by custome . thirdly , he would disable the feoffees and make them as strangers . first the outlawrie was eliz. against henry isley , which was after the seisin of the land ; and brooker is a party able to bring a writ of error , being the heir of the purchasor : error and attaint go with the land , h. . dyer . br. cases . but estopels and conditions go to the heir , fitz. . error brought by a special heir . it is not necessary that alwaies the heir and partie to the record have the writ of error , but sometimes he who is grieved by the record . a scirefacias is a judicial writ founded upon a record , and hath as much in privity is error ; and yet a stranger to the record shall have it . h. . . the heir of the purchasor brought a scirefacias to execute a fine ; it was objected that he was not a partie to the record ; but it was resolved in respect he was to have the benefit , that he was a sufficient person to maintain the writ . ass . . e. . . execution was upon a statute before the time that it ought to have been , and a feoffee brought error ; it was objected that he was not partie , nor privie to the record ; yet because he was was grieved by the execution , he did maintain the writ of error . trin. eliz. in the kings bench , sherrington and worsleys case , ( not rightly remembred ) sherrington did recover in debt against worsley , who aliened the land to charnock ; afterwards an elegit is awarded upon the roll ; and charnock brought error , and it was admitted good , and sherrington forced to plead to it : now in the principal case we are the partie grieved by the outlawrie , and therefore may maintain the writ . h. . . a reversioner , or he in the remainder without aid , prayer , or resc ' . shall have a writ of error , because they are damnified , although they be not parties to the record . i agree , that where one is not grieved by the judgment , there a stranger shall not have error . e. . . a recovery is in debt , and the defendant is taken and escapes , the sheriff shall not have a writ of error , for he is not grieved by the record , but by the escape . r. . . the principal is outlawed in felony , afterwards the accessory is condemned , he shall not have a writ of error to reverse the outlawrie of the principal ; for he is not grieved by that outlawrie , but by his own condemnation . another objection was , because here was an outlawrie against him , and therefore he shall be disabled to sue : i answer , our writ of error is brought to reverse that outlawrie ; and we shall not be rebutted by that outlawrie , when we are to reverse it . h. , . error brought to reverse an outlawrie , the defendant would have disabled the plainfiff by another outlawrie , and it was not allowed because he seeks to avoid it . h. . . for the mastership of an hospital , exception was taken to the writ , because the assise is brought to undoe the name of master ; and therefore he ought not to name him master . h. . . abbot and covent , the abbot is preferred , and the covent elected another abbot ; and the patron brought a quare impedit to defeat the election : it was ruled , because he goes about to overthrow the election , he need not name him abbot . garranty . and e. . . ●o the same purpose . the matter of devise is but conveyance to the writ of error , and the writ shall not be abated for surplusage . e. . . e. . . surplusage is no barr nor estopel . the outlawri● was against henry isley and peckham , and wants these words . nec eorum alter comparuit . dodderidge justice , to say where a feoffee shall have a writ of error , is a large field : if this feoffee bring error and reverse the judgment , he must restore the heir in blood , and who can have a writ of error to restore blood ; but he who is privie in blood , and that is the heir . jones justice , marshes case , c. . part . was never adjudged ; there an executor could not reverse an attaindor by outlawrie , because it doth restore the blood . the case of sherrington and charnock was to reverse the execution and not the judgment : an executor shall have a general writ of error to reverse an outlawrie . it was adjourned . pasch . . car. in the kings bench. . gunter and gunter's case . a writ of error was brought to reverse a judgment in the court of ely , and divers errors were assigned : first that he did not shew in the stile of the court , how ely hath power to hold plea , either by charter or by prescription : secondly because he said , that at such a place in ely he did promise ; but did not shew that it was within the jurisdiction of ely : thirdly , that it was upon a consideration to ●ur●ease a suit in the chancery that the defendant did promise ; but did not shew that at the time of the promise there was a suit depending : fourthly it was said , that the defendant did promise to surrender certain customary lands , and it is not shewn what the lands were ; and so no certainty for the jurie to give damages . jermyn argued for the defendant in writ of error , and said , the declaration is good in substance , diversas terras customarias proxim . adjacend . lib. tenem ' of the defendant ; and the defendant pleaded that he had offered predict . tenem ' customaria , and so no difference is betwixt them ; for that tenement is sufficiently known , and although it be not so certainly laid as it ought to be in a real action , yet it is certain enough in an action upon the case . dyer , . only who was sollicitor to the councel of d. did spend l . circa diversa secta & negotia , there the declaration was sufficient by two judges , there the lands are certain , viz. proxim ' lib. tenem ' secondly , ely is in the margent , which is as much as the county in the margent ; and then when no county is named in the declaration wherein the land doth lie , it shall be intended to lie in the county which is in the margent . hetley , our case differs from onlyes case in dyer . for there l . was received . but if i bring an action upon the case pro diversis merchandisis , the same is not good ; but if i bring the action for ● . pro diversis merchandisis , then it is good . jones justice , chester and durham are generally known , and therefore it is good to say placita tent , apud chester , &c. and the party need not shew how chester hath jurisdiction : but it is not so of ely. whitlock justice , ely hath jura regalia ; and we read in our books , that they have had conusans of pleas. hyde chief justice . in all particular and private jurisdictions , if they come to be certified here in a writ of error , you must set out their power : but if they have their power by a statute , as wales , then it need not be set forth . a writ of error doth not lie upon a judgment in london but when the plea is before commissioners . curia , we cannot grant a new certiorare to an inferior court , but only to the common-pleas , or wales . the writ of error to remove the record out of the court of ely is directed justiciario nostro , which proves that this court takes notice of him as the kings justice : and in other courts it is senescallo curiae , and not senescallo nostro . whitlock justice , it is since the statute of h. . that it is directed justiciario nostro de ely ; for before it was justiciario episc . hyde chief justice , it is a book-case : if midd. be in the margent , and you say apud d. and name no county , d. shall be intended to be in midd. the judgment was reversed . pasch . caroli , in the kings bench . waterman and cropp's case . intratur m. car. rot. . an action of trespass for battery and imprisonment . the defendant did justifie the imprisonment , &c. if it be not a court of record , they cannot fine and imprison ; but if it be a court of record , then they may , for it is curia domini regis . . in a writ of error , error was assigned , that an action was laid in lanceston , and the venire facias was awarded de vicineto de lanceston . and it was said , that the neighbourhood might be of those of which the maior and bailiffs had no power over , viz. those out of their juridiction ? and therefore error was assigned in the mis-awarding of the venire facias . jacobi in the common-pleas , buckley's case , there the venire facias was de vicineto civitatis eborum , and well enough , for ( vicineto ) shall imply those within the jurisdiction , and not the neighbours . jacobi , procter and cliffords case adjudged contrary , where it was , that the venire facias was de vicineto civitatis coventry , and adjudged not good , for it ought to have been de civitate coventry . dodderidge ( vicineto ) goeth about the precinct . when i was a councellor , then i moved for bristol , and to maintain it good de vicinet● de bristol : but it was ruled not good , but ought to be de civitate bristol . pasch . caroli , in the kings bench. . tollyn and taylor's case . an action upon the case was brought in the common-pleas by an enfant who declared by attorney . the defendant brought a writ of error in the kings bench , and assigned the same for error , for he ought to have declared per prochyn amy , and not by attorney . if an action be brought , and the defendant plead that he is an enfant , the enfancie is to be tryed where the writ is brought . here he assigns the error in fact that he was an enfant , and shewed no place where he was an enfant , and so no place set where to prove it . to this error the plaintiffe pleaded , that he was at full age . and upon that they are at issue upon this matter in fact . and it was tryed at halsworth in suffolk , whereas it ought to have been in this court where the enfancie is pleaded , because he names no place where he was of full age . and notwithstanding that it was found that he was of full age , yet the trial was not good . the first action was brought before the statute of jacobi , cap. . hitcham serjeant , age or not age is not local ; and a place must be set down for formalitie sake , and so it is no matter of substance . and the venire facias might be awarded from the place where the first action was , viz. at halsworth in suffolk : for that is a matter dependant and pursuant the first action , and now since the statute is helped . denny contrary , it hath no dependance upon the first action , but is a new thing sprung up . if any place had been set down , and the venire facias had been mistaken , that is helped by the statute , and not where no place is set down at all . whitlock justice , every venire facias properly is to be from the place where the writ is brought , unless it be drawn away by plea. he ought to have alleadged a place ; for this is a new matter in this court , and not helped by the statute of jacobi , nor any other , for the venire facias is totally mistaken . dodderidge justice , the statute of jeofaites have ever been taken strictly according to the letter : for if they had been taken by equity , what need had there been of more statutes to have been made ? the want of a letter out of a word , is out of the statutes c. . part . you should have alleadged some place . the statute of jacobi is not of any venire facias which is misawarded generally : but the statute helpeth when there are two places , and the visne ought to come from both places , and the visne comes but from one place ; and when there is but one place , and the visne comes from two places . if enfancie be to be tryed ( sc . ) if he were at such a time within age , it ought to be tryed by the country . this matter is collateral to the first record , and it is a new record ( sc . ) upon error . the whole court was of opinion that it was out of the statute , and a repleader was granted . whitlock justice , there is no trial at all , for there is no venire facias at all . dodderidge justice , if the defendant in error plead an ill plea , he shall replead : but if in this action he had alleadged a place of his enfancie ( sc . ) at dale , and the venire facias had been of sale , there it had been good trial ; and there he should not replead , for that he hath pleaded well ; but there he shall have a venire facias de novo . pasch . caroli , in the kings bench. . day 's case . day was indicted for erecting of a cottage . it was moved , that the indictment was insufficient , for that the words of the statute of eliz. cap. , are , ( shall willingly uphold , maintain , and continue ) and the indictment is only , that he continued , and so wants the words ( voluntarily upheld ) according to the statute . . it did not appear in the indictment that it was newly erected ; for it is only that he continued , but not that he erected . the indictment was quashed , because being a penal law , it was not pursued . pasch . caroli , in the kings bench. . man's case . man was indicted , that he fuit & adh●●c est a common barrettor , and no place is expressed where he was a barrettor , so as no trial can be . dodderidge justice , if he be a barrettor in one place , he is a barrettor in all places . the indictment was , per quod he did stir up contentions , jurgia ; and no place alleadged where he did stir up jurgia , contentions . and it was said that in that case the place was very material : and so the indictment was quashed for want of setting forth the place where he did stir up many contentions , jurgia &c. pasch . caroli , in the kings bench. . green and moody's case . an action of debt was brought for rent ; and it was found for the plaintiff . thyn serjeant moved in arrest of judgment , and set forth the case to be , that a lease was made for years to begin at micha●lma● after ; and the plaintiff in the action of debt for the rent did declare , virtu●e cujus the lessee did enter , and did not shew what day , according to cliffords case e. . dyer . but the court said , it is said in this case , virtute cujus dimissionis he did enter and was possessed ; and that must be intended at michaelmas . alexander and dyer's case , eliz. was resolved accordingly . and cliffords case , dyer . is not virtute cujus dimissionis . and the court held a difference betwixt debt and ejectione firme : cliffords case was an ejectione firme , but here it is debt . jones justice , if he did enter before michaelmas , yet debt will lie for the rent upon the privity of contract ; for the lessee cannot destroy the contract , unless he make a feoffment . it was adjudged for the plaintiff . quaere , if when the lessor in the case which jones put hath brought his action and recovered when the lessee hath entred before the day , if the lessor shall put him out as a disseisor by reason of the recovery in the action of debt , in which he hath admitted him to be lessee for years : or if the lessor after he hath recovered in debt dyeth , whether his heir shall be estopped by the record to say otherwise then that he is in by the lease ; or whether the recovery in debt hath purged the wrong . like unto the case h. . . by carret . if one entreth into my lands , and claims years therein , and i suffer him to continue there and accept of the rent , and afterwards he committeth waste , i shall maintain an action of waste , and declare upon the special matter . if one entreth into my land claiming a lease for years , per curiam he is a disseisor , and he cannot qualifie his own wrong , dyer . traps case . but sir henry yelverton said , that i may admit him to be tenant for years , if i accept of the rent , or bring waste , as carret said h. . but he hath not but for years , in respect of his claim : but i am concluded by acceptance of the rent , or by bringing of the action of waste . so here by the bringing of the action of debt , the lessor is concluded . but quaere if it shall bind his heir . it was conceived it shall , because it is by record , the strongest conclusion that is . pasch . caroli , in the kings bench. . smith's case . a lease for years was made of lands in middlesex , and the lessor brought debt in london against the assignee . the opinion of the whole court was , that it was not well brought , but the action ought to have been brought in midd. jones justice , debt for rent upon the privity of contract may be brought in another county ; but if it be brought upon the privity of estate , as by the grantee of the reversion , or against the assignee of the lessee , then it ought to be brought in the county where the land is . quod nota . pasch . caroli , in the kings bench. . cremer and tookley's case . an action of debt was brought for suing in the court of admiralty against the statutes of r. . cap. . & r. . cap. . whereby it is enacted , that of manner of contracts , pleas and complaints arising within the body of the counties as well by land as by water , the admiral shall in no wise have conusans : and the statute gives damages , part to the party , and part to the king. and the plaintiff in the action of debt did declare . that the defendant tookley did implead cremer the plaintiff in the court of admiralty ; and in his declaration set forth , that one mull●beck was master of a ship , &c. and that the contract was made in london ▪ and that tookley the defendant did force the plaintiff to appear , and prosecuted the suit upon the contract in the admiral court. and by special verdict it was found , that a charter-party was made betwixt mullibeck and cremer at dunkirk , and that tookley did prosecute cremer in the admiral court by vertue of a letter of attorney ; and so that he as attorney to mullibeck did prosecute the suit there . the case was argued by andrewes for the plaintiff . there are two points : the first upon the jurisdiction of the admiralty , the contract being made at dunkirk , but to be performed in england : the second , if tookley being the attorney , be such a party prosecutor as is within the statutes . the ancient law of the admirals jurisdiction appears in our books . e. . corone . staunton justice , it shall not be accounted the sea , where a man may see the land over the water : and the coroners were to do their office in such case , and the county was to take notice thereof , ass . . stamford . this commission was at the common-law before the statutes of pyracie . e. . tras . . statham it is pleaded that the defendant took the goods as pyracie , &c. i infer thereupon that it was a good justification . r. . tras . stat●am , trespass was brought for a ship and merchandises taken upon the sea , and holden good ; which proves that the common-law had jurisdiction upon the sea , and not the admiral . r. . protection . protection quia profecturus super altum mare . belknap , the sea is within the kings jurisdiction ; and the sea is as well in the kings protection as is the land. it may be objected , that the contract was made at dunkirk , and so out of the body of the county , and so our law cannot take notice of it ; and if the admiral shall not have jurisdiction in such case , it should remain undetermined . to that i answer , if all the matter were to be done at dunkirk , then all were a marine case , and the admiral should have jurisdiction ; but if any part were to be done in england , then it is otherwise . m. , eliz. c. : part . in dowdalos case . in an action upon the case upon assumpsit , the plaintiff did declare , that the defendant at london did assume that such a ship should sail from melcomb regis in suffolk to abvile in france : the issue was tryed in london , because the contract was made in england . pasch . eliz. gynne and constantines case : there because it was part upon the sea , and part upon the land , the tryal was at the common-law , and not in the admiral court. e. . . one did retein three esquires to serve in france ; there because the reteiner was here , the tryal was here . if a mariner contract with me for wages to sail in such a ship , he shall demand his wages at the common-law , and not in the admiral court. vi . h. . . there a protection super vetilationem calisiae , &c. cannot be moraturus , because that the sea is ever ebbing and flowing , and doth not stand still . so that if any part of the contract be to be done upon the land , then common-law shall have the jurisdiction . wreck of the sea shall be tryed at the common-law , because it is cast upon the land. dyer . t' e. . avowry . a replevin was brought of a ship taken upon the coast of scarborough , and carried into norfolk ; and it was alleadged to be within the statute of malebridge for taking a distress in one county , and carrying of it into another county . bereford , the king wills that the peace be kept as well upon the sea as upon the land. and our case differs from lacy's case , c. . part : fo● in that case of felony it is meer local ; but contracts are not so local . the second point , whether this be a prosecution within the statutes , because it was done by vertue of a letter of attorney from mullibeck . e. . barr . . annuity . qui per alium facit , per seipsum facere videtur . the statute of merton cap. . gave power to make attorneys in any court , com. . but the attorney must look at his peril that that which he doth be a lawful act . here mullibeck himself could not have justified this prosecution , nor shall his attorney , ● h. . . h. . . quod per me non possum , per alium non possum . if an enfant make a letter of attorney to make livery and seisin , and the attorney maketh livery accordingly , he is a disseisor . c. . part . if the court have not jurisdiction of the cause , the minister must look to it at his peril , otherwise he is punishable . tras . . one may do that himself , which he cannot do by attorney : the lord may beat his villein , but a stranger cannot do it for the lord : the lord may distrein for rent when it is not behind , and the tenant shall not have trespass ; but if the bailiff distrein when no rent is arrear , trespass lieth against him . h. . . h. . . in trespass all are principals . then the attorney here and mullibeck are both trespassors against the statutes : and the doing of the attorney at the command of the master shall not avail him . vi . dyer . doth conduce to the reason , that the attorney shall be punished . it seems this suing in the court of admiralty is a contempt , for it is malum prohibitum ; and so either mullibeck or the attorney are punishable . and in this case the plaintiff hath his election to sue mullibeck or the attorney ; and therefore having sued the attorney , the action brought against him will well lie . calthrop for the defendant . it was objected , that the court of admiralty did begin but in the time of king edw. . but dyer . proves the contrary : for there in an assise brought of the office of admiralty , the plaintiff doth declare the same to be an office time out of mind &c. which proves it to be a more ancient office : and in the statute of h. . cap. . there the words are to enquire of all offences &c. as the admirals after the old custom ; which proves that it is an ancient office. it 's true , avowry . makes against me ; but the notes of that case in writing proves that the book is misprinted . i confess , if part of the thing be to be done here upon the land , that it is triable at the common-law . the defendant in this our case is not liable to the penalty , because at the time of the making of these statutes it was not known that any charter-partie was made beyond the seas . e. . oblig . . debt was brought upon an obligation made at barwick ; where becaus this court had not jurisdiction , it was adjudged , that the plaintiff nihil capiat per breve . testament . a testament bore date at cane in normandy , which was proved in england : pole , upon an obligation which bears date in normandy , a man shall not have an action here ; but it is good in case of a will proved here . e. . , . the abbot of crowband granted an annuity , and the deed was made in scotland : if the deed had been the ground of the action , then the action would not have lien ; but because the deed bore date before time of memory , the annuity did lie ; for the action was not brought upon the deed , but upon the prescription . e. . . . e. . . it is ruled , where the title is made by a deed which bears date beyond sea , that the action will not lie . h. . & . an obligation bore date in france , and was made according to the law of france . r. cap. . where the specialtie bears date , there the action shall be brought . the first book that speaks of deeds bearing date out of england , h. . , . e. . . e . . you must suppose then , that it was at a place in england ; and that is but a fiction of law , and you shall never make a man subject to the penalty of a statute upon a fiction of law. c. . part . a disseisor makes a lease for life or years ; the disseisee shall not not have an action of trespass vi & armis against him , because he comes in by title : for this fiction of law , that the frank-tenement hath always been in the disseisee , shall not have relation to make him who comes in by title to be a trespassor vi & armis . h. . . a reversion is expectant upon an estate for life ; and in the mean time betwixt the grant and the attornment the lessee commits waste : yet although the attornment relate to make the grant good ab initio , yet the relation being a fiction of law will not make the lessee punishable for waste . then in this our case , the deed bears date beyond the sea ; and then to make dunkirk to be in england by a fiction in law , shall not be prejudicial to the defendant . com. . the preamble of a statute is the best interpreter of the statute . in the statute of r. . the preamble saith , because the admirals and their deputies do hold their sessions &c. in prejudice of the king and of the common-law , and in destruction of the common people , &c. but this deed bearing date beyond the sea , is no prejudice to the king , nor to his franchises , nor to his people to be sued in the admiralty . h. . cap. . the suit within the admiralty ought to concern charter-partie , and fraighting of a ship. for by that statute it was enacted , that if any merchant-stranger ( as mullibeck was ) by long delaying and protracting of time ( as in our case ) otherwise then was agreed between the said merchants in or by the said charter-partie , &c. shall have his remedy before the admiral ▪ which lord admiral shall take such order , &c. in our case at bar , it was a charter-partie made beyond sea. . it was for the freighting of a ship. . for the breach of it was the the suit in the court of admiralty . but admit that this point be against me , then for the second point i do conceive ▪ that he who is punishable by the statutes must be prosecutor , which the defendant is not ; for what he hath done , he did by vertue of a letter of attorney , and he did it in the name of another , and it is the act of the other . c. . part . combes case , if a man have power to do an act by force of a letter of attorney , it ought to be done in the name of him who gives the power . ma. dyer . if surveyors have power to make leases , if they make the leases in their own names , it is not good ; but they ought to be made in his name who giveth the power . eliz. dyer the statute of r. . giveth power to cestuy que use to make leases , and he makes a letter of attorney , the attorney must make the leases in the name of cestuy que use , who hath the power by the statute . c . part . a copyholder may surrender by attorney , because it is his own surrender . vi perkins . . a feoffment with a letter of attorney to the wife to make livery , is good ; but then the wife must make the livery in the name of her husband . secondly , in this case at barr , the beginning and the prosecution of the suit was altogether for the benefit of mullibeck , and so it appears by the records of the court , and no notice is there taken of the attorney but of the master . l. . e. . a writ is directed to the sheriff , and the under-sheriff makes a false retorn , the sheriff shall be amerced ; and not the under-sheriff , for the law doth not take notice of him . eliz. dyer . the customer himself and not his deputie , shall be charged . and so in our case mullibeck being partie to the whole , ought to be accounted the partie prosecuting within the words of the statutes . the statute of h. . cap. . is so as they pursue their claims within five years ; such prosecuting or pursuing ought to be by the partie himself . c. . part . if one of his own head make claim , it is not good claim for to avoid the fine , &c. the statute of ● r. ● . cap. . of premunire makes against me ; for there the procurours , councellors , sollicitors , abettors and attorneys are named by the express words of the statute , and there is an express provision against them : but in our case it is not so ; for if our statute had intended to extend to councellors , attornies , &c. it would have expresly named them . there are divers exceptions which i take to the verdict first , there is variance in the place , betwixt the declaration and the special verdict ; for the declaration layeth the contract to be made at dunkirk in england , and the special verdict finds it to be made at dunkirk extra partes transmarinas . secondly , the declaration is to take in mariners , and the special verdict is to take in men. thirdly the declaration is , a ship to be prepared , and the verdict is to be in readiness . fourthly , the statute of r. . and h. . gives the action by way of vvrit ; and here it is by bill . ass . . there one was taken in execution and escaped , and there a bill was exhibited for the escape : and it was holden because the statute of west . . gave a writ of debt , it shall not be extended by equity to a bill of debt . com. . a. and com. , . plats case , there the judgment is given upon a bill for an escape ; but mr plowden said that it seemed to divers a hard case . the statute of ● eliz. cap. . of informers is in the negative , viz. that none shall be admitted or received to pursue any person upon any penal law , but by way of information , or original action , and not otherwise . mich. eliz. in clarks case it was resolved , that the statute of eliz. was a penal law , and the partie must not be sued by bill , but as the statute hath prescribed . h. . . there upon premunire facias , it was adjudged good by bill ; but there the action was not directed so precisely by the statute , viz. in what manner the partie should proceed . there are no presidents that an action of debt hath been brought for pursuing in the court of admiralty , but in such case a prohibition granted only : and for these causes he prayed judgment for the defendant . observe reader , the argument of calthrope ; he doth not speak to the point , where part of the thing or contract is upon the sea , and part upon the land , as it was urged by andrews who argued on the other side . the case was adjourned . pasch . caroli , rot . . in the kings bench. . it was cited to be adjudged , that if a man purchase the next avoidance of a church , with an intent to present his son , and afterwards he present him , that it is symony within the statute . pasch . caroli , in the kings bench. . sutton the chancellor of gloucester's case . in the case of sutton who was chancellor of gloucester , and put out of his place for insufficiency in the ecclesiastical court , trotman moved for a prohibition to the spiritual court , and said that the bishop had power to make his chancellor , and he only hath the examination of him , and the allowance of him , as it is in the case of a parson who is presented to the bishop , and said , that if his sufficiency should be afterwards reexamined , it would be very perilous . doddridg justice , if an office of skill be granted to one for life who hath no skill to execute the office , the grant is void , and he hath no frank-tenement in it . a prohibition is for two causes : first to give to us jurisdiction of that which doth belong unto us : and secondly , when a thing is done against the law , and in breach of the law , then we use to grant a prohibition . jones justice , brook had a grant of the office of a herald at arms for life ; and the earl marshal did suspend him from the execution of his office , because he was ignorant in his profession , and full of error contrary to the records : and it was the opinion of the justices , that because he was ignorant in such his office of skill , that he had no freehold in the office. in the principall case , the prohibition was denyed : and afterwards sutton was put out of his office by sentence in the spiritual court , for his insufficiency . pasch . caroli , in the kings bench. . symm's case . two men having speech together of john symms and william symms , one of them said the symmses make half-crown peeces , and john symms did carrie a cloak-bag full of clippings . and whether the action would lie was the question , because it was incertain in the person ; for he did not say these symmses , but the symmses : like unto the case where one farrer being slain , and certain persons being defendants in the star-chumber , one having speech of them , said , these defendants did murder farrer ; and it was adjudged that the action would not lie , for two causes : first because the words ( these ) was uncertain in the person : and secondly it was incertain in the thing ; for it might be that they had authority to do it , as in mills case jac. in the kings bench , thou hast coyned gold , and art a coyner of gold thirdly , a cloakbag of clippings , that is also uncertain ; for it might be clippings of wooll , or other things , or it might be clippings of silver from the goldsmith ; for the goldsmith that maketh plate , maketh clippings . and fourthly , it is not shewed any certain time when the words were spoken : and for these causes it was adjudged that the action would not lie . pasch . caroli , in the kings bench. . whittie and weston's case . an action of debt was brought upon the statute of e. . and the plaintiff declared , that at the time of the action brought , he was parson of merrel , and that weston the defendant did occupie such lands , and sowed them with corn . anno jac. and that he did not fet forth his tythe-corn , &c. the defendant pleaded in barr of the action , that w. w. prior of the hospital of st john of jerusalem , was of the order of hospitalers , &c. and that he held the said lands free from the payment of tythes , and that the priory came by the statute of . h. . to the king : by vertue of which statute the king was seised thereof , and that the same descended to queen elizabeth , who granted the lands unto weston to hold as amply as the late prior held , and that he was seised of the lands by vertue of that grant , et propriis manibus suis excolebat . upon this plea the plaintiff did demurr in law. noy argued for the plantiff , there are three points in the case . first , if these lands the possessions of the hospitalers of st john , which they held in their own hands were discharged of tythes . secondly , if there be any thing in the statute of h. . by which the purchasor of the king should be discharged . thirdly , admitting that it shall be a discharge , if the defendant hath well entitled himself to such discharge or priviledg . first it is not within the statute of h. : cap. . for that statute did not extend to the order of st john. secondly , the statute of h. . cap. . doth not discharge any but what was then dissolved . thirdly , the statute of h. cap. . gives the possessions of the hospitalers of st johns to the king , and not the statute of h. . note that the defendant did recite the branch of the statute of h. . cap . that as well the king , his heirs and successors , as all and every such person and persons their heirs and assignes , which have or hereafter shall have any monasterie , &c. or other religious or ecclesiastical houses or places shall hold , &c ▪ according to their estates and titles discharged and acquitted of the payment of tythes , as freely and in as large and ample manner as the said abbots , &c. had or used : also he recited the statute of h. . cap. which enacts that none shall pay tythes , who by law , statute , or priviledg ought to be discharged . the statute of h. . recites that divers abbies , &c. and other religious and ecclesiastical houses and places have been granted and given up to the king : the statute ena●ts that the king shall have in possession for ever all such late monasteries , &c. and other religious houses and places , &c. and also enacts that the king shal have not only the said monasteries , &c. but also all other monasteries , &c. and all other religious and ecclesiastical houses which hereafter shall happen to be dissolved , suppressed , renounced , relinquished , forfeited , given up , or by any other means come to the king ; and shall be deemed , adjudged , vested by authority of this present parliament , in the very actual possession and seisin of the king for ever , in the state and condition they now be . vi. the statute . and shall have all priviledges , &c. in as ample manner and form as the late abbots , &c. had , held or occupied , &c. the question then is . whether the men of the hospital of st john at jerusalem , are intended to be within the said statute of h. . and i conceive that they are not : it doth not appear in the pleading , that the priory of st john was an ecclesiastical house , therefore it ought to have been averred . it is true , to plead that such a man hath entred into religion , is intended that he is a person dead in law. they were never ecclesiastical , nor so accounted ; they must be both religious and ecclesiastical , who are within the statute of h. . for the said statute doth not extend to religious houses unless they be ecclesiastical . tryal . proves that they were religious , h. . . and the statute of templers , e. . do shew that they were canonized ( which is ) admitted unto a rule of their own law , and not that they were made saints , or that they were ecclesiastical , e. . . nonability . they were dead persons in law. feoffments . proves that they were religious ; but whether they were lay or ecclesiastical , i have not read . in the difference of summons to parliaments unto the templers , the summons is , vobis mandamus in fide & legeanti●s ; but the summons to a spiritual lord is , in fide & electione ; and so was the summons to the prior of st johns of jerusalem , but that was because he held in frankalmoign , but that doth not prove him to be ecclesiastical ; for first they exercised themselves in arms , it was part of their order , armis se exercere ; and that is against the rule of the common law , to meddle with blood . secondly , they used no imposition of hands , but only a robe , nor had they so much ceremony as a knight of the bath ; and yet the knights of the bath are not ecclesiasticall . so there is nothing in their creation or order , that makes them ecclesiastical ; for they were lay-monks of the order of st anthony . the jesuites have lay-brethren , and not ecclesiastical . . ass . . there the defendant pleaded in barr , that the prior was a lay-man , and so not under any rule ; and it is there admitted that he was a lay-man , and yet that he might be prior , and bring the action in his own name , and not as prior with his brethren , which proves that the residue were dead persons in law. if there be professions alledged in one of the hospitals of st john of jerusalem , how shall it be tryed ? by the country . tryal . profession was alleadged in the plaintiff , who was a knight of the order of the templers , and it was commanded to certifie it : and the bishop could not enquire of it , because the order of a knight templer was exempted by the pope : but tryal . there it was certified by the bishop ; yet all our books are contrary to it . . r. . . si profissio allegata sit in quodam militi sancti johannis jerusalem , quia immediate sub papa sunt , non habere cuiscribere possunt , &c. h. . . selden . in his history of tythes , that they were accounted no part of the clergy , but meerly lay. with us they were accounted lay , and therefore it is not material what they were accounted of in other places . a colledg is a lay corporation : if they be disseised , an assise must be brought . the statute of . and . philip and mary is , that men might devise to spiritual corporations , notwithstanding the statute de terris ad manum mortuum nonpo●●nd ▪ 〈◊〉 or any other statute to the contrary . dyer . there a devise was unto a colledg and grammar-school , and holden a good devise , because the statute of philip and mary ought to be favourably expounded , being for the benefit of the corporation . i take another reason from the manner of payment of tythes : ecclesiastical persons payed tythes ; but no tythes were paid by the hospitalers of st johns of jerusalem the statute of h. . dissolves abbies , &c. but doth not relate to any formerly given up , &c. and the reason was , because they were but petty abbies . the statute of h. . dissolves none ; but recites that whereas divers have given up , &c. or were to be given up , but shews no reason ; for divers inquisitions issued forth to enquire of their lands ; but the statute of h. . doth not shew any such reasons , but other reasons ; because that rodes was taken away , and that they held of the pope . and if they were dissolved by the statute of h. . then what need a statute the next year after , viz h. . to dissolve the corporation ? by the statute of h. . cap. . the king hath the first fruits and tenths of all that shall be promoted to any benefice or promotion spiritual . this doth not extend to st john of jerusalem ; and therefore afterwards in the same statute it is enacted , that every one which shall be elected , or by other means appointed to the dignity of the prior of st johns of jerusalem , shall before their real and actual entrie into the dignity or medling with the profits , satisfie the king , &c. now if they were intended in the words spiritual promotion , it was in vain a new to enact for them . the act of . h. . extends to ireland , and so doth not the statute of h. . the statute of h. . extends only to eccelesiastical and religious ; so they were not intended within the statute of h. . next , if they were intended within the statute of h. ● . then the statute of h. . gives them absolutely by name to the king : the statute of h. . gives nothing to the king , but those that are or were to be given up , forfeited , surrendred , or otherwise given up ; but gives nothing to the king but by the help of some other act , viz. forfeiture , surrender , or otherwise given up . the word ( otherwise ) never intended dissolution by act of parliament ; for that is paramount the particulars recited . the statute of malebridg cap. . n. provisum est quod si depredationes vel rapini aliqui fi●nt abbatibus , &c. vel aliis prelatis ecclesiasticis , &c. that statute never intended , to extend to bishops , who are paramount and superior to abbots : the word ( aliis ) will bear no such sense , to make the superior to be intended , when as the inferior is recited . the statute of eliz. recites , that no colledg , dean and chapter , parsons , vicars , &c. may make a new lease , unless within a year of the end of the lease in being . now a bishop is superior and above these particularly named , and may make concurrant leases : so here the word ( otherwise ) doth not intend that otherwise ) to be by act of parliament , and to extend to greater then the particulars recited . the statute of h. . sayes that the corporation shall be dissolved and void ; but the statute of h. . doth not say that the corporation shall be dissolved and void . the statute of h. . sayes that the corporation and possessions shall be in the king by vertue of that act ; then not in the king by vertue of the act of h. . a feoffment in fee is made unto the use of a. in tail , he hath the use by the statute of west . ● . cap. . now when the statute of h. . cap. . came , he hath the possession by force of that act , viz. of h. . and not by force of the statute of west . . if the king be not in by the statute of ▪ h. . then he shall not have every of the priviledges which the act of h. . giveth . c. . part , the bishop of canterburies case . the colledg of maidstone was religious , but not ecclesiastical ; and it was adjudged that the purchasors of the lands of the said colledg were not discharged from the payment of tythes , because the colledg was not ecclesiastical , but religious only ; and religious and not ecclesiastical , came not to the king by the statute of h. . jacobi , in the common pleas , wrights case ; the priory of hatfield being of small value , viz. not having lands of the value of l . per annum was dissolved by the statute of h. . and the lands were not tythe-free in the hands of the purchasors , because the priory came not to the king by the statute of h. . and yet they were tythe-free in the hands of the prior himself . the second point upon the statute of h. . the words are , that the king shall have all rights , interests and priviledg , as it was in the hands of the abbots , priors , &c. it is objected , to be free from payment of tythes is a priviledg : i answer , that neither right , interest , nor priviledg do free him from the payment of tythes : first , there is no discharge of tythes by the word ( interest ) in the statute , for that is plain ; then the question is , if the word priveledg will discharge the lands from the payment of tythes ; and if that word would have sufficed to have discharged the tythe ▪ what need was there of the special clause to discharge tythes ? the statute of h. . dissolves chaunteries , and there it is said , that the king shall have and enjoy , &c. and there also all priviledges are given ; then the statute of e. . came , and gave all chauntries to the king , and there the word ( priviledg ) was not in the act ; yet by those words the lands were not discharged from the payment of tythes : the statute of h. . is , conditions and rights of entrie ; yet there was another act made to give conditions to the king. but admit that the king himself be discharged , yet his patentees are not discharged . the priviledg was personal , and personal priviledges are not transferrable . h. . . a statute dissolve● the templers , and gives the lands to the hospitalers to hold by the same service as the templers did , which was frankalmoign ; yet the grantee held by fealty , for that frankalmoign is a personal priviledg , and cannot be transferred by general words . the king ( it's true ) shall have the priviledg , for he is a priviledged person : for of his goods he shall not pay tythes , if he do not grant them over : and the grants prove , that unless he had granted them , he should have paid no tythes . the statute of h. . sayes , all conditions which the abbots , &c. have ; yet untill the statute of h ▪ . no purchasor could take advantage of a condition . hill. . eliz. in the common pleas , rot. . spurlings case . the purchasors of lands of the hospital of st johns of jerusalem , were not priviledged from the payment of tythes . pasch . . jacobi in the common pleas , vrry and bowyers case , in a prohibition it was holden by cook and nichols , that the purchasor of st johns of jerusalem should pay tythes ; but winch and warburton cont . jacobi , in the common pleas , all the judges but warburton , held that the purchasor should pay tythes . eliz. dyer , there it doth not appear whether they were of the order of templers or cistertians . the third point in this case , the defendant doth make no title to the discharge , for he hath not averred that the priory were ecclesiastical persons . if a man plead that a. is professed , the court cannot take notice of it that he is a dead person in law ; but if he saith that he was of such an order , he ought to set forth of what rule the order is . secondly ▪ the manner of their discharge was , when they did till and sow ▪ their lands , propriis sumptibus & manibus . if they grub up roots , and make the lands fit for tillage ; but if their tenants sow the lands , they shall pay tythes , for they had the priviledg in respect they should not be idle ; unless all these do concur , they shall pay tythes , viz. plough , sow , reap , and carrie the corn. these priviledges are to be taken stritly , because they are to defeat the church of her endowment ; and therefore in this case the defendant doth not well entitle himself to the discharge , unless he do shew that he did occupie the land for one whole year before , and that he did plow , sow , and ●eap the corn ; but he ought for to have shewed , that such time he pl●●ed the land , such a time he sowed it , and such a time he reaped the 〈◊〉 otherwise the court will intend that another man did plow and sow the land , and that he only reaped it : for if lessee of the hospital doth plow the land , and sow it , and afterwards doth surrender to the prior of the hospital who reaps the same , he shall pay tythe of the same , for the priviledge was granted unto them who were labourers . and the defendant perhaps might have the lands to halfs : that is to say , to have half the corn growing upon the lands . the pleading is not good . when you plead two bars , each bar must stand of it self , and the surplusage of the one bar shall not help the defect of the other bar. the word ( priviledge ) in the act of h. . doth not extend to tythes : if it doth , yet the purchasor shall not have the priviledge . dodderidge justice , the statute of h. . was made , because that those of s. johns of jerusalem said , that they could not surrender their hospital , because they had a supreme head over them , viz. their great master the pope . crawley serjeant argued for weston the defendant . the pleading was over-ruled to be good , the last day the case was argued . we have well entitled our selves to the discharge : for we have pleaded that we had the occupation of the lands for one whole year ; and that weston the defendant plowed , sowed , and reaped the corn upon the lands at his own costs and charges ; and the plaintiff hath not shewed that any other plowed , sowed , or reaped the same . our title is by prescription , which is confessed . this society was erected in the time of king henry the . and it continued untill h. . eliz. in spurlings case , there were two reasons of the judgment . . there the statute of h. . was not found , and so the king was not entitled to rights and priviledges , and by consequence so was not his pattentee . . it did not appear that the councel of lateran ( johannis ) did extend to these orders , which was said to have been created e. . whereas indeed it was created in the time of henry the . regularly this priviledge is not transferrable , for it is ratione ordinis : as when the king makes a duke , and gives to him possessions , those possessions annexed to the dukedom are not transferrable over but by special act of parliament . h. . . moile , there if there had been special words in the act of parliament , it had been frankalmoigne . this priviledge is transferred to the king by the act of h. . and that statute requires no aid of regular or ecclesiastical persons . secondly , the words are special , and all other things of theirs . this case opposeth not the bishop of canterbury's case , c. part ; for that refers to the statute of e. . which had not so large words . the intent of an act shall be taken largely and beneficially to inlarge the kings possessions ; as the grants of the king shall be taken largely and beneficially for the king. there is a difference betwixt this statute of h. . and the statute of h. . the copulative words of the statute of h. . are , to have all rights and interests , and hereditaments . c. . part . pro omnibus demandis , &c. there the demand shall extend to temporal demand ; so , all rights and interest , and inheritance , shall be construed , all temporal rights , &c. but the statute of h. . is larger , viz. of what name and nature soever . if by the words of the statute of h. . ( priviledges ) tythes had been given to the king without especial provision after made , then what needed the special clause after ? was the objection which hath been made . i answer , the special clause was necessary : for in pleading otherwise he ought to have shewed what priviledge and discharge it was in particular ; and so the clause was added for the case of pleading ▪ c. . part , the abbot of strata mercellos case ; there it is said , that if a man plead to have such priviledges as such a one had , he ought to shew in particular what those priviledges were : but this provision in the statute of h. . was made for the benefit of pleading . the statute of e. . which gave the tythes to the hospitalers , give them by the word of priviledges , for they had their possessions as it were by a new purchase . cook entries . there the case much differs from this : so then the general word ( priviledges ) doth extend to tythes . h. . . by a grant of all trees , apple-trees will not pass ; yet if it be of all trees cujuscunque generis , naturae , nominis aut qualitatis , then they will pass . c. . part . by grant of all goods , apparel will not pass . here are special words in the statute , cujuscunque naturae , nominis , &c. nominla sunt symboa rerum : and then call them what you will they are given to the king , and intended to be transferred to the king ; and so there needs no special provision for the discharge of the tythes ; for to say , that the priory was of the order of the cistertians , is sufficient . admit then that the king shall have the tythes , as i have argued he shall ; then his pattentee shall have them . it is a real discharge in the king , and not a discharge in respect of his person only . priviledges of discharge may be transferred as well as priviledges of profit . then the question further is , whether they of s. johns of jerusalem were ecclesiastical ? they were regular , as appeareth by the statute of h. . for that saith that they shall be free from obedience . trin. . jacobi in the common-pleas , bowyers case : whore cook , nichols , warburton and winch did agree that they were ecclesiastical priests . the prior had parsonages ; and none could have parsonages but ecclesiastical persons ▪ e. . . they had appropriations , which could not be unto lay-men . e. . . there a writ of annuity was brought against the prior of s. johns of jerusalem ; and it was ruled there that he ought to be named parson , which proves that he was ecclesiastical . h. . cap. . there it is said , that he shall pay first-fruits as other parsons ; which proves that he was parson . e. . . there they are called ecclesiastical . h. . . they were seised in the right of the church . linwood lib. cap. . de judiciis . that they were ecclesiastical . it was objected , that knight-hood cannot be given to ecclesiastical persons ; and they were knights . popham once chief justice of this court said , that he had seen a commission directed unto a bishop to knight all the parsons within his diocese ; and that was the cause that they were called sir john , sir thomas ; and so they continued to be called untill the reign of queen elizabeth . jones and dodderidge justices , they were ecclesiastical persons , although they were divided from the jurisdiction of the bishop . the case was adjourned to be further argued . pasch ▪ caroli , in the kings bench. . langley and stote's case . in an ejectione firme , the plaintiff declared of an ejectment martii jacobi , contra pacem dicti domini regis nunc : which could not be , because king james dyed the of march , and so it was not contra pacem caroli regis . h. . . an appeal of maheim was brought ; and the plaintiff declared , that he meyhemed in the time of the king that now is ; and the writ did suppose the same to be in the time of king r. . and for that cause it was adjudged , quod nihil capiat per breve . pasch . caroli , in the kings bench. . mutle and doe's case . debt was brought upon a bond ; aud the plaintiff in his declaration doth not say , hic in curio prolat . it was holden by the court , that although it be in the election of the defendant to demand oyer of it , yet the plaintiff ought to shew it . the judgment also was entred , concessum est ; whereas it ought to have been , ideo consideratum est . and for these causes the judgment was reversed : so was it adjudged also the same term in this court , in barret and wheeler's case . pasch . caroli , in the kings bench. . serjeant hoskin's case . he was indicted for nor paving of the kings high-way in the county of middlesex in s. johns street , ante tenementa● sua : and in the indictment it was not shewed , how he came chargeable to pay the same ; nor was it shewed that he was seised of any house there , nor that he dwelt there , nor was it averred that he had any tenement there . the opinion of the court was , that the indictment was incertain ; for it might be that his lessee dwelt in the house , and so the lessee ought to have repaired it , and also mended the high-way . and for these incertainties the indictment was quashed . pasch . caroli , in the kings bench. . samson and gatefield's case . error was brought to reverse a judgment given in the court of virge in an action upon the case ; where the original process fuit a sommons , whereas it ought to have been an attachment . pasch . caroli , in the kings bench. . hern and stub's case . in an action of detinue , the plaintiff did declare upon the bailment of a cloak of the value of l. to the defendant to be safely kept , and to be redelivered unto him upon request ; and shewed , that he did request the defendant to redeliver it , and that yet he doth detain it to his damage , &c. the defendant justified the detainer by reason of a forain attachment in london : and said , that london is an ancient city ; and that there is a custom in london &c. that if any one be indebted unto another , that if he will enter his suit or plaint into the counter of the sheriff of london , that a precept shall be awarded unto a sergeant at mace to summon the defendant ; and if he retorn nihil● viz. that he hath nothing within the city by which he may be summoned , and non est inventus ; and if he be solemnly called at the next court , and makes default , that then if he can shew that the defendant hath goods in the hands of one within the liberty of the city , that the said goods shall be attached : and if the defendant make default at four court-dayes , being solemnly called , that then if the plaintiff will swear his debt , and put in bail for the goods , viz. that if the debt be disproved within one year and a day , or the judgment be reversed , that he he shall have judgment for the said goods . and he shewed , that he entred his plaint against the now plaintiff in the counter of woodstreet for the debt of l. and that a precept was awarded to a sergeant at mace to summon him ; and because he had not any thing by which he could be summoned , he shewed that the now plaintiff had goods in his the defendants hands , which were attached in his hands : and that he sware his debt , and put in bail for the goods , and had judgment thereupon . upon which plea the plaintiff did demur in law. ward argued for the plaintiff . there are four reasons of the demurrer . . he sets forth , that j. s. did levy a plaint against the now plaintiff for the debt of l. but doth not set forth expresly that he did owe him l. and he ought to have set down how the debt grew due ; for that is traversable by the plaintiff , and now hee cannot traverse it . c. . part . the generall count in an action upon the case , quod cum indebitatus fuit in such a summe , super se assumpsit , without shewing the cause of the debt is insufficient . h. . . trespass was brought for taking of a chain of gold ; the defendant said , that the plaintiff before the trespass supposed did license him to take the same chain , and to retain it untill he paid him marks , which he ought to pay him . keble took exception , because the defendant did not alledge for what cause the marks was due , which cause the plaintiff might traverse : to which brian acc ' . e. . . trespass for taking a bagg with money ; the defendant said , that the plaintiff was indebted unto him in a certain summ , and delivered unto him the bagg of money in satisfaction . littleton , the plea is not good , for he ought to shew how he was indebted unto him . old entries , . there in a forraign attachment the certainty of the debt was expressed and averred . . he pleads a custom , and doth not prosecute his case according to custom . the custom is , that if the sergeant retorn , that he hath nothing within the city whereby he may be summoned ; and non est inventus . and at the next court day he be solemnly demanded , and make default , &c. and he saith , that because he had nothing by which he could bee summoned ; but doth not say , that the officer did return that he had not any thing whereby to be summoned , nor that he was not to be found , nor doth he plead or say , that at the next court day he was solemnly demanded . dyer . . b. where this case of forraign attachment was ; there the custom is set forth , viz. that the debt ought to be affirmed by the oath of the party in curia guildhall ; and this was pleaded to be in curia vicecomit in computatorio . also he doth not averr , that he had found pledges according to the custom , and therefore the plea is insufficient , because he hath not purchased the custom . . he sheweth that the goods were attached in the defendants hands , but he doth not shew that it was within the liberty of the city and it might be out of the liberty of the city , and all the presidents are infra jurisdictionem &c. and the plea of every person shall be taken strongest against the pleader . and he ought to have shewed that it was within the liberty of the city , because it is a peculiar jurisdiction . e. . breve . debt was brought in the common pleas ; the defendant said , that the plaintiff had a bill for the same debt depending in the exchequer ; and demanded judgment of the writ , & non allocatur : for it doth not appear by the plea that the plaintiff or defendant were priviledged in the exchequer ▪ and then by the statute of articuli super chart ▪ as , cap. . it is provided , that no common plea shall be holden in the exchequer . e. . a , in trespass for imprisonment , the defendant doth justifie , &c. there he ought to shew that the tower of london hath priviledges &c. for where a man will take advantage of a particular priviledge and liberty , he ought to shew that he was within the priviledge of liberty . mi● . . car-willis was indicted before the justices of northampton for frequenting of a bawdy-house in northampton ; and the indictment was quashed , for it might be within northampton , and yet out of the liberties and jurisdiction of northampton . . he doth not shew in his plea that his debt was a due debt : and it was pleaded dyer . that it was a due debt , vi entries , . it is not enough to swear his debt , but he must sweat his debt to be a due debt . stone for the defendant . . i agree , that if the action had been brought in that court to recover a debt , then he ought to set forth how it became due : but here he pleads to bar him , and not to recover , and so the debt is not traversable . h. . there brian took the exception ; but two judges are against him , because he brought not debt , but another action for the chain . e. . . it is good by moile , without shewing the debt , because it is by way of excuse . h. . . is ruled in the point : there the attachment is in his own hands ; there the other pleaded there was no debt : it is there ruled , that the debt is not traversable ; for if there be no debt , then he shall have restitution in london upon the pledges . it was objected , that he is to swear his debt to be a true debt . i answer , it ought to be so intended : and then if he lay a custom to swear the debt , and we say we have sworn our debt , then we have pursued the custom . . it was objected , that it is not shewed where the goods were , whether within the jurisdiction of the city . e. . . there the place came not in question : but in our case we lay , that the custom is , that the goods must be in london . old entries , , . there it is not alleadged that the goods were within the city of london at the time of the attachment ▪ if a precept be awarded to the officer , who retorns that he hath not any thing within the city ; and upon the allegation of the plaintiff that such a one hath goods of the defendant in his hands , was the objection . i answer , if we have not proceeded well , yet the process is well enough ; for here is a judgment against him in london : then so long as the judgment is in force against him , he cannot have the goods : e. . b. it is a rule , that a stranger unto a plaint shall not be received to alleadge discontinuance in the process : so the sheriff shall not excuse himself upon an escape , that there was error in the judgment nor a privy shall not take advantage of it . ognels case trim. eliz. there lies no process of capias by the law upon a recognisance , but extent , or levari facias : yet there a capias was awarded ; and if the party taken escape , the sheriff shall not take advantage of the erronious process . so i desire judgment for the defendant . and he took an exception to the declaration : in detinue , if the declaration be general , it is good , ( sc . ) licet sepius requisitu , &c. but here he shews that he delivered the cloak to be redelivered upon request , and he doth not shew any particular request , but sayes generally licet sepius requisitus . ward , there is a difference betwixt detinue , and action upon the case : for in an action upon the case he ought to shew a particular request . h. . if i bail goods to redeliver upon request , yet i may seise them without request . dodderidge justice , the reseisure of the goods is a request in law , a request with a witness , a request with effect ; and untill request , he hath just cause to keep them . jones justice , in debt and detinue the very bringing of the action and demand of the writ is a demand and request : and if he appear at the first summons , then he excuses himself , otherwise he shall be subject to damages : but the request ought not to be so precisely alleadged . but if a collateral thing be to be done upon request , there to say sepius requisitus , is not sufficient . so if i sell a horse for ● . to be paid upon request , there the request must be precisely laid , for it is parcel of the contract : and in action upon the case , and upon debt , you must lay a request , dodderidge justice , the request is no part of the debt : for the debt is presently due ; but if i make the request to be part of the contract , there it is otherwise : as if i deliver goods to redeliver to me , there needeth no precise request : but if it be to redeliver upon request there the request ought to be alleadged , for there the request is part of the contract . the case was adjourned till the next term. pasch . caroli , in the kings bench. . mole and carter's case . in an action upon the case upon an assumpsit , it was moved in arrest of judgment , that the plaintiff declares that he was possessed of certain goods ( viz. such , &c. ) at london , and that in consideration of two shillings , that the defendant at london did promise to carrie the said goods aboard such a ship , if the plaintiff would deliver the goods to him ; and he shewed that he did deliver the goods to him , and that he had not carried them aboard . he shewed that he was possessed of the goods , but did not shew when or where he delivered the said goods to the defendant ; but said only deliberavit , &c. and then the law saith that they were not delivered . jones justice , the same is but matter of inducement to the promise , and ought not to be shewed so precisely . pasch . caroli , in the kings bench. . fryer and dew's case . dew being sued , prayed his priviledg , because he is a commoner in exeter colledg in oxford , and brought letters under the seal of the chancellor of oxford , certifying their priviledg : and he certifies that dew is a commoner , as appeareth by the certificate of doctor prideaux , rector of the said colledg , whereas he ought to certifie that he is a commoner upon his own knowledg , and not upon the certificate of another . but afterwards certificate was made of his own knowledg , and then it was allowed as good . the declaration came in hill. caroli . the certificate bore date in the vacation , and he prayed his priviledg this easter term. after imparlance he comes too late to pray his priviledg : the certificate is not , that at the time of the action brought he was a commoner in exeter colledg , but that now he is a commoner . and the certificate bears date after the action brought ; he ought to have said that at the time of the action brought , and now he is a commoner in exeter colledg . the priviledg was allowed per curiam . trin. jacobi , in the kings bench. . tanfield and hiron's case . the plaintiff brought an action upon the case against the defendant , for delivering of a scandalous writing to the prince , and in his declaration he set forth what place he held in the commonwealth , and that the defendant seeking to extenuate and draw the love and favour of the king , prince , and subjects from him , did complain that the plaintiff did much oppress the inhabitants of michel tue in the county of oxford , and that he did cause meerstones to be digged up which might be a cause of great contention amongst the inhabitants of tue. the plaintiffe denyed the oppression alledged against him ; and the defendant did justifie , and said that i. s. being seised of the mannor of tue , did demise certain lands , parcel thereof unto i. f. for eighty years ; who made a lease of the same at will ; and afterwards i. s. did enfeoff tanfield the plaintiff of the said mannor , to whom the tenants did attorn tenants : and the defendant shewed , that time out of mind , the inhabitants of the town of tue had common in the waste of the said mannor , and that a great part of the said mannor was inclosed , and the meerstones removed ( but doth not shew by whom : ) and shewed that the lands inclosed , out of which the inhabitants had their common . and said , that there were divers other grievances to the inhabitants of tue , ( but did not shew by whom they were , nor what they were ) and shewed , that at a parliament the defendant did deliver such a writing to the prince , as one of the peers of parliament , supposing that the grievances were set upon the inhabitants by the plaintiff , by reason the plaintiff occupied the lands so inclosed ; and for reformation thereof , that he delivered the writing to the prince absque hoc , that he did deliver it in any other manner . and upon this plea in barr , tanfield the plaintiff did demurr in law. noy for the plaintiff said , that the defendant complains of wrong , and doth not shew any wrong to be done by tanfield the plaintiff ; it is a grievous scandal to deliver this writing ; for it is a scandalous writing , and no petition : for therein he doth not desire any reformation , but complains generally . betwixt john frisel and the bishop of norwich , the case touched in e. . was , that frisel brought a prohibition to the bishop , and the bishop excommunicated him for the delivering of it unto him ; the bishop was fined : and there it is said , as reverence is due to the king , so it is due to his ministers . our action is brought at the common law , and not upon the statute of r. . de scandalis magnatum . m. e. . rot. . thomas badbrook sent a letter to ferris , one of the kings councel , the effect of which was , that scot chief justice of the kings bench , and his companions of the same bench , would not do a vain thing at the command of the king ; yet because he sent such a letter to the kings councel , although he spake no ill , yet because it might incense the king against the judges , he was punished , for it might be a means to make the king against his judges . we are to see here , if the defendant hath made any good justification ; if there were no wrong , then there was no cause to complain . secondly , if he had demeaned himself as he ought , he ought to have had the wrong ( if there were any ) reformed , and that he did not do . h. . h. . a voice of fame is a good cause for to arrest a man of felony ; but then some felony ought to be committed . h. . . a certain person came and said to one , that there were certain oxen stoln , and that he did suspect such a one who he arrested upon the suspition : it is a good cause of justification if any oxen were stoln ; but if no fellony was committed , if one be arrested upon suspicion that he hath committed fellony , it is not good : if fellony be done , then a good cause to suspect him ; but if no fellony be done , nor he knoweth nor heareth of any fellony committed , there is no cause for to suspect that the partie hath committed fellony ; but there ought to be suspition that the partie hath committed such a particular fellony : where fellony is committed certainly , one may be arrested upon suspition , but unless a fellony be committed he cannot be arrested : for where no fellony is committed at all , he shall not be drawn to a tryal to clear himself of the suspition ; but if a fellony be certainly committed , and he be arrested upon the suspition , there he being forced to answer to the fellony , he may clear and purge himself of the infamy upon his tryal , and so the infamy is not permanent , as in case when no fellony is committed ; for there he may bring his action upon the case . here he saith that parcel of the waste is inclosed , and doth not shew what parcel , so as no certain issue can be taken upon it . moor and hawkins case in an ejectione firme , it was alledged that he entred into parcel of the land , and the land was alledged to lie in two several towns ; and it was not good , because no certain issue could be thereupon : he saith the same was inclosed , but doth not shew by whom it was inclosed , viz. whether by the feoffor , or tanfield the feoffee : he complains of many grievances , but doth not shew what they are , and he ought not to be his own judge . secondly , he hath not demeaned himself as he ought ; for he hath not desired in the letter any reformation , but only he complains of the oppression of tanfield : he ought to have directed the writing unto the parliament , and he directed the same unto the prince by name ; in the letter he doth not shew that tanfield the plaintiff did oppress , but that the plaintiff was an oppressor , but he doth not shew in what thing . the case was adjourned . trin. iacobi in the kings bench. . scot's case . proborum & legalium hominum is omitted in the certificate of an indictment by the clark of the sessions : curia , if it had been in trespass , the omission of the said words had vitiated the indictment ; but not in case of felony . quaere the reason . trin. iacobi , in the kings bench. intratur , m. jac. rot. . . crouch and hayne's case . in a writ of error the record is removed out of the common pleas : the defendant pleads in nullo est erratum , and a demurrer is joyned ; and the defendant afterwards alledgeth diminution of the original . e. . . the assignement of errors is in lieu of the declaration . e. . error . after that in nullo est erratum is pleaded , the defendant shall not alledg diminution ; for they are agreed before , that that is the record . the writ of error was general , and did not shew when the judgment was , when the ejectment was , what the lands were ; and nothing is certain in the writ of error , but the persons and the action : he shall not be concluded by the general retorn of the record by the chief judg of the common pleas. fitz. . a. c. . entr. . the record was removed , and a scire facias awarded ex recorde ; and diminution was alledged for omitting of certain words ; yet the retorn there was of the record , & omnia ea tangentia . dyer . the court certifie that the partie was not essoigned ; there then cannot be any certificate of the chief justice to the contrary . the principal case was , an original bore date in june jacobi , and another original in september jacobi , and both were retornable s. mich. and the trespass was done after the first original sued forth , and before the later , and both the writs are in court : the question was , upon which of the originals the judges should judge . e. . , , . there it is holden that the judges ought not to suppose any error . e. . : error was brought to reverse a judgment in a writ of dower , and the error assigned was , that there was not any issue joyned ; but because there was sufficient matter upon which the judges might give their verdict , therefore the judgment was affirmed : for the judgment was not given upon the verdict . pasch . h. . rot. . plot and his wife against treventry in a writ of error , after the record removed , diminution of the original was alledged ; and there it was pretended that the judgment was given upon another original , and one of the originals was before , and the other after the judgment ; and there the judgment was reversed , because it cannot appear to the contrary but that the judgment was given upon the later original . trin. jacobi , rot. . bowen and jones's case , in an action upon the case brought upon assumpsit , error assigned was , because that no place was limited where the payment should be made : the original was , that the promise was in consideration that the plaintiff did lend to the defendant so much , he at london did promise to pay the same to him again ; there were two originals which bore date the same day , judgment was in that case for the plaintiff : and the defendant brought a writ of error , and alledged diminution of the original , then the other original was certified ; the defendant in the writ of error said , that the original upon which the recoverie was grounded , was an original which had a place certain ; the judges did affirm the same to be the true original which did maintain the judgment , and agree with the proceedings , otherwise great mischief would ●ollow . george crook contrarie , and recited the case , viz. hayns brought a writ of error against crouch , and the writ of error is to reverse a record upon a judgment which was given in the common pleas ; the original which is certified , bears date trin. jacobi ; and the ejectione firme is brought trin. jacobi , for an ejectment which is made in september following ; and now upon this errour assigned , the partie had a certiorari to remove the record upon which you alledge diminution : for you say , that the originall upon which the judgment was given , bore date in september . jacobi , which was after the ejectment . the bodie of the record is trin. . contrary to this record , you say that there was an originall mich. jacobi , and so that is contrary to the record . error . upon the record , the originall is not part of the record ; but you ought to assigne errour in that which is alledged in diminution . h. . fitz. a. to alledge any thing against a record , is void : the ejectment was after the originall which warrants the record , and it was after the action brought . they alledge that the originall was not truely certified , and that then after an imparlance , an originall writ is made to warrant the action ▪ jones and bow●ns case before cited , there a vitious originall was certified , and then upon the complaint of the defendant , the true originall was certified ; both were retornable at the same day . and in the case before cited of plott and treventris , the originall which was first certified did not bear date according to the record which was certified : but in our case the last originall doth not agree with the record , but the first : but in the case of plott the judgement was reversed for another error . the diminution when it stands with the record shall be allowed , but when it differs from the record , then it shall not be allowed . the ejectment was layed after the first originall purchased , which agrees with the record , and after the action brought . quod nota . it was adjuorned till another terme , viz. mich. . jacobi . trin. . jacobi in the kings bench. . sommers case . the case was between sommers and mary his wife plaintiffs ; who traversed an office found after the death of one roberts : the parties were at issue upon one point in the traverse ; and it was found against the king. henden serjeant moved : the office finds , that roberts dyed seised of two acres in soccage , and four foot of lands holden in capite : ( which was alledged roberts had by encroachment . ) sommers and his wife pleaded , that roberts in his life time did enfeoffe them of one of the acres , absque hoc that that acre did discend . and for the other acre they pleaded and entitled themselves by the will of roberts , absque hoc , that roberts was seised thereof . that i take to be an insufficient traverse . first , it is found by the office , that roberts dyed seised ▪ and that the same discended to four daughters , and one of the daughters is the wife of sommers : and hee and his wife traverse the office , and confesse that the ancestor died seised , absque hoc that the same discended . the traverse is repugnant in it self , for if he did devise it , then untill entry by the devisee it doth discend ▪ but if they had pleaded the devise only , and entry by force thereof , it might have been a good traverse . the office findes that it did discend to four daughters , and the wife of sommers is one of the four daughters , and he and his wife traverse the discent , and that is not good , for one cannot traverse that which makes a title to himself . ass . . the rule there put is ; that a man cannot traverse the office by which he is intitled ; but in point of tenure he may traverse it : wherewith agrees stamford prerogat . . & . ass . . one came and traversed an office , and thereby it appeared that two there had occasion to traverse it , and it was holden that , they all ought to joyne in the traverse . finch recorder of london , contr ' . the office found generally , that roberts had four daughters , and had two acres and four foot of lands , and that the same discended to four daughters : sommers and his wife traverse the office , and plead , that as to one acre ; roberts made a feoffment thereof unto them , absque hoc that he died seised thereof . . that roberts devised the other acre to them absque hoc that the same did discend . eliz. dyer : bishops case , there it is resolved , that a devise doth prevent a remitter ; and then by consequent , it shall prevent a discent . e. , . there a devise did prevent an escheat to the king. as to the four foot ( gained by encroachment ) which is holden of the king in capite , they traverse absque hoc that roberts was seised thereof ; i agree that where their title is joynt , there all must traverse ; but in our case we traverse for our selves , and deny any thing to be due to the three other sisters . the four foot of waste , was part of the mannor of bayhall ; and the venire facias was out of that mannor , and the towns where the other lands lay . e. . a. disseises b. of a mannor and a. severs the demeasnes from the services . now b. shall demand the mannor as in truth it now is : henden contr ' . it is no part of the mannor of bayhall , for it is encroached out of it ; therefore the venire facias ought not to be of the mannor of bayhall . the jury finde that he had encroached four foot ex vasto manerii , &c. dodderige justice , the encroachment doth not make it to be no parcell of the mannor . ley chief justice , it is not layed to be a disseisin , but an encroachment , and therefore it is not so strong as a disseisin with a discent , but in right it belongs to the mannor : tenant in tail makes a feoffment to the use of himself , and deviseth the lands to a. the devise doth prevent the remitter . haughton justice the discent is traversed : the father dieth seised , and hath issue two sons ; and that the lands discended to him ; the other may say , that the land is borough english , and that the lands discend unto him absque hoc that they discended to the eldest . dodderidge justice , regularly , you shall not traverse the discent but by the dying seised ; but in this case it ought to be of necessity ( sc . ● in case of a devise , the traverse must be of the discent ; for here they cannot traverse the dying seised , for if they traverse the dying seised , then they overthrow their own title , sc . the devise ; but here in case of a will , the partie shall traverse the discent , for he cannot say that it is true that the lands did discend , and that he devised it , &c. the heir cannot traverse that which entitles him by discent ; but here his title is by the devise , and not as heir . finch recorder , the devise is not of the four foot , for if we confess the dying seised of the four foot which was holden in capite , then we should overthrow our own devise . the office finds that he died seised of the whole , and therefore of the four foot . he being never seised , we traverse the dying seised thereof , and we deny that he ever had it ; so the traverse is good without making of us any title unto it , for we desire not to have it . dodderidge justice , if a man deviseth to his heir , it is a void devise ; for the discent shall be preferred : but if one hath issue four daughters , and he deviseth to one of them , it is good for the whole land so devised to her ; and no part of the land so devised shall discend to the other , the lands being holden in socage . ley chief justice and the whole court did agree , that they might deny and traverse the four foot , if the ancestor had no title unto it : and judgment was given accordingly against the king , quod nota . trin. jac. in the kings bench. . payne and colledges case . an agreement was made between payne and colledg , that if payne ( being chirurgion ) did cure colledg of a great disease , viz. a noli me tangere , that then he should have l . and that if he did not cure him , that then for his pains and endeavours , colledg would give him l . in an action upon the case brought by payne , he doth not shew in his declaration in what place he used his endeavour and industry : and there is a difference where the plaintiff is to do any thing of skill and industry , for there he may do the same at several times , and in several places ; and so this case differs from the cases in our books , h. . accord : . is expresly in the point , there the defendant pleaded an accord , that if the defendant by his industry , &c. and exception was taken because that he did not shew a place . e. . . debt brought by a servant , and declares that he was reteined by the predecessor of the defendant , &c. and that he had performed his service , &c. it was moved in arrest of judgment , and exception taken as in our case , because he did not shew where he did the service , for that is issuable : and denly there said , that he need not shew the place , because he might do it in several places . bridgeman serjeant contrarie , if the issue had been upon a collateral matter , it had been good enough ; but here the issue is taken upon an endeavour , and you ought to alleadg a place for the tryal of it . dodderidge justice , the jury was from the place where the agreement was made , the verdict will not make good the declaration , although the jury have found the whole matter of fact ; for it doth not appear to us , that that was the jury which could try his endeavour . the case of e. . of the servant was to serve him seaven years , and there he need not shew any place where he did his service , but only that he obeyed his master in his service for the seaven years : if the plaintiff in this case had shewed but any one place of doing , his endeavour in it , had been sufficient ; but here he sheweth no place at all : and therefore judgment was given , that querens nihil capiat per billam . trin. jacobi , in the kings bench. . the lord zouch and moores case . in an action of trespass for cutting down of trees in odiham park in hampshire , it was found by special verdict , that king henry the eighth was seised of the mannor and park of odiham , and by his letters patents of his reign , did grant unto genny the office of stewardship of the said mannor , and the office of parkership of the said park , with reasonable herbage ; and by the same letters patents did grant unto him the mannor of odiham cum pertinaciis , and . loads of wood , excepting the park , the deer , and the wood , for fifty years , if he should so long live . then they found , that after that genny did surrender and restore the letters patents in the chancery to be cancelled , and that in truth they were cancelled , and that the said surrender was made to the intent to make a new lease thereof unto pawlet ; and that this lease of h. . being surrendred , that king henry the . anno . of his reign , reciting the letters patents made to genny to be dated anno h. . ( whereas in truth they were dated h. . ) and that they were surrendred , and that the intent of the surrender was to make a new lease to pawlet ; did grant the same to pawlet , as before they were granted to genny , excepting as before . they further found , that king philip and queen mary , & of their reigns , being seised of the said mannor and park in jnro coronae , reciting that henry the . anno of his reign had granted unto paulet as before , omitting the proviso which was for years if he should so long live ) and the exceptions before ; and reciting that those letters-patents were surrendred ea intentione to make a new lease in forma sequente they in consideration of good service and l . paid did grant the office as before , and by those letters-patents did grant herbage generally ( whereas the first patent was reasonable herbage ) and by these letters-patents did grant to him the mannor cum pertinaciis ( except the grand trees and woods in the park ) and felons goods which were granted by the first letters patents for years : and here was a rent reserved ; and a proviso that for doing of waste that the letters-patents should be be void : and there was no such proviso in the first letters-patents . eliz. queen elizabeth reciting the letters-patents of & phil. & mary verbatim and truly , did grant the parkership unto secretary walsingham , and leased the mannor unto him with the appurtenances , with power to take loads of wood , excepting the deer , habendum from the end of the lease to pawlet either by surrender or forfeiture for years rendring rent , and for not payment a re-entry . walsingham granted the same to h. who granted to the same to moor and others defendants . king james anno . of his reign granted the said mannor , and the offices of stewardship and parkership all by one letters-patents to the lord zouch , who thereupon entred . moore entred upon him and cut down the trees ; and the lord zouch brought the action of trespass . sir henry yelverton argued for the plaintiff , and said , . the lease made unto pawlet h. . is a void lease in law. . the second lease unto pawlet made by king philip and queen mary & . is also void in law. . the lease made by queen elizabeth to walsingham , anno of her reign , is also void in law. and that the lease made by king james is good in law ; and the action of trespass brought by him will well lie . the first lease is void ; for it is granted upon a false suggestion made by genny , scil . a supposed surrender : for the lease which he did surrender did not bear date . but h. . and the surrender to the king was false ; for the lease supposed to be surrendred by genny beareth date h. . whereas there was no such lease made to genny : and therefore both being the suggestions of the party , the king was deceived ; for what lease genny had , the king could not know but by the suggestion of genny ; and upon his information the king was contented to accept of a surrender , which was but a shew of a surrender . the king could not know with what genny treated him , but by his information ; and in both the king was deceived : for it was not the kings intent to charge the lands but with one lease . c. . part , the lord shandoe's case ; the reason of the judgment there proves our case : for there all which grew by the information of the party was true , and then the king made a wrong collection thereupon ; but that which he collected was not upon the information of the party . and there it was agreed , that if in any part the party had mis-informed the king , that the whole had been void . dyer ● . lessee for ● years of the queen made lease for years ; the years expire ; the assignee doth surrender unto the queen his lease for years , ea intentione that the queen shall make unto him a new lease for years . the queen reciting that the said lessee did surrender a lease for years , did grant to him a lease for years : the lease for years was adjudged void ; for he did surrender no lease unto the queen . and there dyer said , that it is all one where the consideration is false , and where the information is false ; there , and here is but a shew of a surrender , and it was not the queens intent to pass more then she took by the surrender . henry the . recites , that genny hath surrendred up the patent which bore date h . and there was not any such patent . genny suggested that he had given up the patent , dated h. . when he had not any such patent . so the king was deceived in the suggestion . a difference hath been taken betwixt consideration and information : here the consideration was service , and two hundred pounds paid ; and it was objected , that he took here by the consideration , and not by force of the information . but i say that the information was the ground upon which the patent was made . for it was not the kings intent to charge the lands with two leases , c. . part . there it is cited , that in a patent of king henry the . four letters , viz. h r. f. h. of the first words were left out , intending afterwards propter honorem to be set out with gold : but the great seal was put to the patent , leaving out the said four letters ; and yet the patent was adjudged good being referred to the inrollment , privy-seal &c. for thereby it appeareth that it was the grant of the king. if queen elizabeth recite , that whereas her father made such a lease , and doth not recite it by the name of henry the . her father , it is good enough , if henry the . made such a lease : but in such case , if henry the . made the lease , then the lease of the queen had not been good , for that she mistook her ancestor , for henry the . was her grandfather . h. . . h. . , . the kings patent may be without date ; for he may resort to the inrolment and privy-seal , and so help it : but in such case if he doth surmise a false date , the same makes the patent void . e. . . misrecital of the year of the reign of the king will make void a patent : and in our case , by the misrecital of the year of the king there is a year gained . it was objected , that it shall be helped by the statute of h. . which helps mis-recital , and non-recital : but in our case it is not a mis-recital : for mis-recital is when part of that which is recited is true , and part false ; but non-recital is , when nothing at all is recited . but in our case , it is a false recital of the subject in the thing which is surrendred ; genny surrendred nothing , and the king took nothing ▪ trin. jacobi , roper and roden's cases . henry the . reciting by his grant , that where he had a reversion expectant upon a demise made unto m. whereas in truth it was made unto n : he granted the reversion unto roden . it was adjudged , that that recital was not helped by the statute of h. . for that the king had not any such reversion . jacobi , tucker and carr's case was adjudged upon the same point , doddington's case , c. . part , there a general grant is not helped by the statute of h. . in our case here is a mistaking of the thing it self : if he had recited the same to be h. . and then had mistaken any thing in it , it had been helped by the statute of h. . dyer . kemp was nonsuit , ( there h. . was mistaken for h. . ) there the surrender was of a patent bearing date h. . whereas in truth it bore date h. . and there it is adjudged , that the patent of h. . cannot be the patent of h. . by which the office was granted to him : and therefore it was adjudged void , notwithstanding the act of h. . and other statutes of misrecital . so in our case h. . is mistaken , and it is . whereas in truth it was h. . the second point then is , if the lease of . h. . be void , then of necessity the lease of . & . philip and mary is void , for therein is falsity of three things . . the thing recited is the custody of the park , with reasonable herbage and the patentee would have nothing but pramissa , and he trusts the king to give that ; and he takes from the queen herbage ( leaving out reasonable ) and so hee takes more then was intended him , and therefore hee hath deceived the queen ; and if you are to have reasonable herbage ; the king may put one to be overseer , that you have that which is fitting and reasonable , and the queen may agister cattel there ; but in our case the queen can neither set any overseer , nor can she agist cattel there . dyer . . h. . killaway . he who hath reasonable herbage cannot inclose , but hee which hath herbage may inclose . then forasmuch as here the patent is larger then it was before , scil . that which was surrendred , the patent is void ; for the queen grants more then she took by the surrender : for hee did surrender eâ intentione , that the queen should regrant him praemissa ; and by this new grant he hath more . . he recites , that hee had a lease for fifty years absolutely , whereas it was determinable upon death ; and the queen grants the same for fifty years absolutely , and that was by reason of his false suggestion . it may be objected , that the queen is not deceived , for the limitation for life is not annexed to the habendum . . eliz. in the kings bench , hunts case ; the queen made a lease to begin at a day to come , and afterwards the queen by the suggestion of the party , and for the surrender of the present lease , did make a new lease unto the party ; it was adjudged , that the new lease was void . so here , the queen was deceived in the quality of the lease . . e. . . baggots case ; the king reciting that baggot was born in normandy ( whereas in truth he was born in france ) made him a denizen ; and the patent , notwithstanding this false recital of the party , was adjudged good , for the intent was to make him a denizen : that case was objected against me . but put the case a little further , and it is otherwise ; for if at that time edward the fourth had had wars with france , then the patent had been void , for it was not the kings intent to protect a man who was an enemy , and to nourish him in his own bosom . if the queen had made the new lease to begin after the first fifty years , then it had been void . c. . part the rector of chedington's case ; it is not the years , but the death of the patentee which determins the lease . c. . part . in a deed there is not any proper place where the proviso shall be inserted , then if it come in any place , so as it doth not lean upon a covenant , it is a good condition . . eliz. betwixt throgmorton and sir moile finch . queen mary made a lease unto throgmorton for years , and in the end of the lease there is a proviso , that the lease shall cease if the rent be behind . popham chief justice said , that throgmorton hath such a lease which is absolute , but shortned by limitation in the end of the lease ; and he might plead it generally and absolutely , that those who will take advantage of the proviso , ought to shew where the proviso comes in another clause . so here pawlet should have informed the queen of the proviso , for hee trusts the queen , and the queen trusts him . the third falsity is , it is pretended , that the park of odiham doth passe with the manor ; for the manor is granted by king philip and queen mary , cum pertinentiis ; and it is found by the jury that the park is parcel of the manor . he hath deceived and mis-informed the queen ; for in the lease which he surrendred , the park is excepted , and now he would steal it in by the general words , cum pertinentiis . if the park doth not passe , then the defendants are trespassors to the plaintiffe ; and if the manor doth not passe , then they are trespassors ; so as they are in a dilemma . this park ( admit the manor passeth ) doth not passe : for queen mary , shortly after , made pawlet a marquess , and then she granted unto him by letters patents . the custody of the park , and the interest of the park cannot stand together in one person ; and he cannot be the queens parker , when as it is his own park . c. part . the best expositor of letters patents , are the letters patents themselves , joyning one part of the letters patents with the other . and here in one clause the custodie of the park is granted by express name ; and the general words , viz. grant of the manor cum pertinentiis doth not convey it . there is a difference betwixt the custody of a park , and the interest of the park . in com. . if a parker be attainted and pardoned , hee loseth not his park , but hee may be a parker notwithstanding such attainder ; but if the owner of a park be attainted and pardoned , he loseth his park ; a parker is a matter of service , and cannot be forfeited ; but an interest may . . h. . . the keeper shall render account for the hawks , for it is parcel of the profits of the park ; but lessee for years of a park shall not render account for them : so there is a difference betwixt the interest in a park , and a parkership . . h. . . lessee for years of a park suffereth the pale to fall down or decay , waste lieth ; but if a parker suffereth the pale to decay , he can onely lose his office. dyer . the owner of a park may dispark it , but he who hath only the herbage of it , cannot . a man hath the custody of a house , and afterwards he becomes the owner of the house ; his custodie therein ceaseth . there are four mischiefs in our case : . by expressing himselfe to be parker , hee excludes himselfe from being owner . . the keeper is accountable , but lessee for years is not . . if he be only keeper of it , then the queen might dispark : but if he were lessee , the queen could not . . where he is keeper , all will rest upon account , as well the deer which hee findes there when hee became keeper , as those which came after . but that makes the queen in doubt , whether the exception should extend to the deer ; then whether to those deer which came after : the third point was concerning walsingham's lease ; it is of the manor , and custodiam parci . first , this lease hath one of the wounds of the former leases : for the parkership is granted expresly . secondly , the leases before being void , then this lease must needs be void also . thirdly , this lease is to take effect upon the end , surrender , or forfeiture of the lease to pawlet , which was made . & . philip and mary , and that lease had not any beginning , and therefore was void ; and so the three limitations , end , surrender or forfeiture cannot happen . dyer , . from the death of the father the lease which is made to the son shall begin the father being dead , it is a void lease to the son. c. part . enumeration of particular times , if it do not happen within the particular , then it shall never begin : and so it is of this lease to walsingham in our case . note , it was said by sir henry yelvertor , that it was the opinion of the judges in this case , that he had but the custody of the park , and not the interest of the park ; for by the acceptance of the custody of a park , when he hath a lease of the park it selfe before , it is a surrender of his lease . davenport argued for the defendant more . the question which is made of the lease of . eliz. rests upon the lease made to genny . h. . which was determined upon the surrender of the lessee . . it rests upon the lease made to pawlet . . h. . which was for fifty years , determinable by two provisoes ; the one for not payment of a sum in gross . . it rests upon the lease made to pawlet . & . ph. & m. for years from mich ▪ last past , upon the death of pawlet , or committing of waste . the lease of . eliz. is a lease in reversion for years , to begin after the surrender , forfeiture or expiration of the lease made & ph. & m. to pawlet . exception is taken to the lease . h . because it hath two falsities ; the first , because it mis-recites the lease of h. . reciting the same to be dated h. . whereas in truth it was dated h. . and that varies the term of years , and that lease is not good at the common law , nor as they objected , is it helped by the statute of . h. . of mis-recitalls . secondly , because it is upon a false suggesstion of the patentee , and therefore it is void . it was also obejected , that the lease of & philip and mary was void for two causes ; first , because that that recites the lease of . h. . to bee for fifty years , without the proviso of determination by the death of pawlet . . the king is deceived in his grant ; for they objected , that it was recited to be surrendred 〈◊〉 intentione to regrant eadem praemissa ; and there are other things granted which were not surrendred ; they say , that the lease is said to be of the parkership , and not of the park ; for that doth not passe by the generall words cum pertinentiis ; for by expresse words the parkership is granted , and then not the park it selfe . the lease of . h. . was truly surrendred ; but the king reciting that the patent bearing date . h. . was surrendred in consideration of service , did grant the office of parkership , &c. and insuper the manor for fifty years , &c. the question is , if this misrecitall be helped by the common law : if it be not , then if the statute of . h. . doth help it ? the lease which was mis-recited was not in esse ; and there is a difference when the lease which is recited , is not in esse , but determined ; and when former leasus are recited , as leases in esse . there are three things in which misrecitall is materiall , and doth vitiate the patent , . misrecitall of the tenant to whom the lease was made or of the tenant which was last possessed . misrecitall of the thing demised . . of the estate in esse , and the limitation . if in such case of misrecitall , there be not a non obstante , then the patent is void at the common law , c. . part . the king by the law ought to be truely informed of estates in esse , and also of his rents and revenue ; but by the common law , if the former leases be recited to be determined , ( and in truth , they are , ) and the new grant is upon another consideration , then it is not materiall , if they be misrecited ; for that it is not any part of the consideration . vide . h. . . darby . if the misrecitall be in any thing not materiall , which need not to be recited : and no part of the consideration of the new lease , then it shall not make void the patent ; for that the misrecitall was not of any thing materiall . if the misrecitall be of a thing determined , and the second patent depend thereupon , then the second patent is void ; for if the king recite a lease made to i. s. which is determined , and demise tenementa praedict ' sic ut praefertur ; and in truth the lease recited was made to i. d. the second lease is void : . h. . br. patents l . the king tenant in taile makes a lease for life , the successour king may make a new lease without recitall , and if he do misrecite the lease which is determined , it is not materiall . if our lease should be void at the common law , yet it is helped by the statute of . h. . cap. . by expresse words , the same extends to all leases , with , or without consideration , notwithstanding misrecitall , or non-recitall ; yet all misrecitals are not helped by that statute : if the misrecitall be of leases , which are not the guide of the second patent , and need not to be recited , such misrecitall is helped by the statute . but if the former patent begetteth the later , then the statute doth not extend unto it , for then the last is void , for that the king is deceived , and not by reason of the misrecitall . dyer . . the case there is direct to prove our case ; for there the recitall was of the grant of an office , . h. . whereas it was dated , . h. . et quia omnia , &c. and there was not any surrender , for in truth it was not surrendred to the master of the rolls , who died before it was entred : there it is resolved , that it is not helped by the statute of queen mary : for in that act there is an expresse clause , that it extend not to the grant of an office , ( as in the case of dier it was ) and then it was left at the common law , and the queen was deceived , because the surrender was not good . the defect of the second patent was , that it was not in the crown by the surrender , but if it had been well surrendred , the misrecitall had been helped by the statute of . h. . for it was the misrecitall of the year , that the patent bore date . ● . . part , doddingtons case , dyer . upon the statute of . h. . the misrecitall of the town is not helped ; for it doth not appear unto the court what land was intended to be granted : but if the thing had been certainly and particularly named , so as it might appear to the court what land was intended to passe ; then the mis-recitall of the town had been helped by the statute of . h. . a thing granted generally with reference to a misrecited patent , is not helped by the act of . h. . but when the thing granted is particularized with reference to a thing which is determined in a misrecited patent , then the statute of . h. . will help it ; but in our case , the misrecitall is of a thing which needed not to be recited . the second objection which hath been made , is , that the king is deceived , by reason of the false suggestion : and then the letters patents made by reason thereof are void . i answer , that if the false suggestion tendeth to the detriment of the crowne , and to the apparant prejudice of the king , then the letters patents may bee avoided : but where the suggestion is of a thing not materiall , and doth not tend either to the deceit of the crowne , or to the kings prejudice , neither in his profit , nor his inheritance , there it shall not make void the letters patents . dyer . where an abbot lessee for sixty years of the queen , made a lease for eighty yeares ; the sixty years expired , the lessee for eighty years surrendred to the crown , and in consideration of that surrender , to have a new lease ; there the second patent was void , for the king was deceived in the reall consideration . and dyer there said , that it was but the suggestion of the party , and the collection of the queen . c. . part . . where lessee for yeares of the king did assigne part of his terme and land to another , and then surrendred , the surrender there was the consideration ; and that was not good . if the recital be made of a thing which needeth not to be recited , and the patent is made upon another consideration , there the misrecital shall not hurt it , c. . part . where henry the seventh , reciting cum p●st &c. virtute cuj●s , &c. the estate is recited , as determined ; the reversion shall passe ; for the king was certified of the estate : and in our case it is determined . where the falsitie of the suggestion is not in deceit , nor to the prejudice of the king ; if the thing misrecited be not materiall , it shall not make void the patent . c. part . legates case . quae quidem &c. the false suggestion shall make void the patent ; for the king did not intend to abate his revenue . fitz. nat. brev. grants . falsitie of tenure of the king shall make void the kings licence : for the falsitie of suggestion which came from the party , did tend to the prejudice of the king in his tenure . c. . part quod quidem manibus &c. ratione escheatae &c. it shall make void the grant by this suggestion of the party which doth prejudice the king in his title . but where the suggestion is not to the prejudice of the king in his revenue , tenure , nor title , it shall not make the letters patents void . c. . part . markham's case . the king grants the office of parker , quod quidem officium the earle of rutlan'd late had ; and the said earl never had it ; the suggestion was of a thing not materiall to the second patentee , nor to the kings prejudice , therefore it was good . . h. . . quod quidem manerium seisitus fuit in manus nostras ; the false suggestion there shall not make void the patent , because it was not of a thing materiall . if the king grant a manor , quod quidem manerium nuper fuit in tenura i. s. and in truth it was not in the tenure of i. s. yet it was adjudged good : for nuper is a recitall of the thing that was ▪ and not of a thing that is . for if it had not been in the possession of i. s. whereas in truth he was not seised or possessed thereof , there it had not been good . it is found in our case , that the lease is actually surrendred , and so the misrecitall is of a thing that was , scil . nuper ; and not of a thing that is , or in esse . the next exception is to the letters patents of philip and mary . first , because thereby the lease of . h. . is not fully recited ; for there was a proviso , that if he did not pay a summe , in grosse , that it should be void ; and that it should determine by the death of pawlet the patentee . the misrecitall of that collaterall matter by the common law , shall not make void the grant. there are three things necessary in recitalls : first , the certainty of the particular estate in esse , with the limitations . secondly , the tenant to whome the particular estate was made , or the tenant which then is in possession . thirdly , the thing granted , by the same name as it is granted in the first patent . but covenants , reservations , provisions , conditions , and the like , need not to be recited . the recitall ought to be of a thing in esse : avowry . a towne was granted by the king. and afterwards he granted unto another a leet in the same towne ; the king in this case needed not to recite the grant of the said towne . secondly , the recitall ought to bee in the same name as it was granted in the first patent . and cannot be helped by averment , if it be misrecited . thirdly , the tenant of the land , or the tenant which was before the grant , ought to be recited , scil . that such a man habuit , to whom the first patent was granted ; or , that he now hath the lands , or lately had the thing granted in possession . brook pat. . such things ought to be recited as ought to be pleaded against the king in an information of instruction . in our case , the misrecitall being of a thing determined and not materiall , and not to be the guide of the second patent , doth not make void the grant to pawlet . it was objected , that queen mary was deceived : for the grant was de ●isdem praemissis : and in the former patent the park was excepted ; but so it was not in the letters patents to pawlet : in the first patent reasonable herbage was granted ; but in the second to pawlet , the grant was of herbage generally . if the king except the deer , as hee doth in this case , then hee ought to have sufficient herbage for his deer : the jury finde , that the letters patents of . h. . were absolutely surrendred eâ intentione , that the king might make a new lease in forma s●quente , which is not de praemissis , sed de praementionatis . now the king for two hundred pounds fine , is pleased to grant , tam in consideration of the surrender , quàm for the fine of two hundred pounds : and here the king took knowledg , that it ought to be in forma sequente : and then by reason of the fine and surrender , hee is pleased to vary from the former patent , and it is to the prejudice of the patentee : the first was reasonable herbage ; and here it is herbage , and in the kings case it amounts to as much , as if hee had said , reasonable herbage : for because the king excepts the deer , it is implyed , that the patentee is but to have reasonable herbage . here the grant is not de omnibus grossis arboribus , bonis & catellis felonum ; and of the goods of felons themselves : and in the former patent these were granted , and so the grant is for the kings benefit , and to the prejudice of the patentee . also this patent is ad proficuum domini regis : for here is a rent reserved , and here is a proviso for the committing of waste in the premisses , which were not in the first letters patents ; and in these letters patents there are divers covenants which were not in the former patents : and so it is in forma sequente : and so the lease of philip and mary is good . the king seised of a manor to which he hath a park , doth grant the stewardship of the manor , and the custodie of the said park , with reasonable herbage : afterwards in the same letters patents hee grants the said manor of o. and all the lands in o. excepting grosse trees in the park . if this grant be not good for the manor , it is not good for the park that was the objection : it is good for the manor , and also for the park . it was objected , that the king grants the custody of the park , and so not the park it selfe ; for how can the king grant the custody of the park , if he grant the park it selfe ; it is dangerous , that upon an implication in one part of a patent , the expresse words which follow should be made void ; the subsequent words in this case , are , the king grants the manor , and all the lands to the same belonging ; now the park doth belong to it , and the king excepts only the deer , c. part . the king at this day grants a manor unto a man , as entirely as such a one held the same before it came into his hands , &c. the advowson doth passe without words of grant of the advowson ; for the kings meaning is , that the advowson shall passe : the meaning of the king is manifest in our case ; c. . part , . carr's case , there the rent was extinct betwixt the parties ▪ yet for the benefit of the king for his tenure , it hath continuance ; for a thing may be extinct , as to one purpose , and in esse as to another purpose . . ass . . a rent extinct , yet mortmain . dyer , . the exception ought to be of the thing demised . in our case the park doth passe , but the king shall have the liberties in it ; and so here the park shall passe , and the exception is of the liberties ; com. . the exception ought to be of that which is contained in the former words , in the former patents ; the offices were first granted ; and in the same letters patents the manor was afterwards granted . but now king james grants the manor first , and then the offices . construction of statutes ought to be secuncundùm intentionem of the makers of them ; and construction of patents secundùm intentionem domini regis , c. . part . you ought to make such a construction , as to uphold the letters patents , c. . part . . auditor kings case ; there the letters patents were construed secundùm intentionem domini regis , and adjudged good : but to make void the patent , they shall not be construed secundùm intentionem , but to make a patent good , they shall be construed secundùm intentionem domini regis . the case was adjourned till michaelmas terme next . note , i have heard sir henry yelverton say , that it was the opinion of the judges in this case , that he had but the custody of the park , and not the interest of the park ; for that by the acceptance of the custody of the park , when he had a lease of the park before , it was a surrender of his lease . trinit . . jacobi , in the kings bench. shortridge and hill's case . shortridge brought an action upon the case against hill for ravishing of his ward ; and the writ was contra pacem , without the words vi & armis , lib. dent. . where three presidents are of actions upon the case , without vi & armis : an action upon the case for doing of any thing against a statute , must be contra pacem . ley chief justice , recovery in this action may be pleaded in barre in a writ of ravishment of ward brought . dodderidge justice , the action of trespasse at the common law , is only for the taking away of the ward ; and here he hath elected his action at the common law , and then he shall not have an action upon the statute , viz. a ravishment of ward ; but here the action upon the case is brought for the taking and detaining of the ward , so as he cannot preferr him in marriage ; and upon this speciall matter the action upon the case lieth without the words vi & armis . a writ of ravishment of ward ought to be brought in the common pleas ; but yet you may bring a writ of ravishment of ward in this court , if the defendant be in the custody of the marshal of the marshalsey , for in such special case it shall be brought in this court : if there be an extraordinary matter besides the trespass , then an action upon the case lieth ; as when a. contracts with b. to make an estate unto b. of bl. acre at michaelmas , if c. enter into bl. acre , a. may have an action upon the case against c. for the speciall damage which may happen to him , by reason that he is not able to perform that contract by reason of the entry of c. and he shall declare contra pacem , but not vi & armis . trinit . . jacobi , in the king 's bench. baker and blakamore's case . in trespass , the defendant pleaded , that j. s. being seised in fee , gave the lands unto baker and the heirs of his body , and conveyed the lands , by descent , to four daughters ; and blakamore the defendant , as servant to one of the daughters , did justifie . the plaintiff did reply , that the said j. s. was seised in fee , and gave the same to baker and the heirs males of his body , and conveyed the land by descent to himself , as heir male , absque hoc , that j. s. was seised in fee. henden serjeant did demur in law upon the replication ; and took exception to the traverse , for that here he traverseth the seisin of j. s. whereas he ought to have traversed the gift in tail made by j. s. for the being seised is but an inducement not traverseable , and therefore he ought to have traversed the gift in taile , for then he had traversed the seisin ; for he could not give the lands in tail , if that he were not seised thereof in fee , l. . e. . there in formedon , the tenant would have traversed the seisin of the donor , but the book is ruled , that the traverse ought to be of the gift in tail , and that includes the seisin . bridgment for the plaintiffe , and said , that the serjeant is of opinion contrary to the books , when he saith positively , that you ought to traverse the gift in tail , and not the seisin of the donor . the case shortly is , a. being seised in fee , makes a gift in tail to b. and that descends to four daughters , &c. and the plaintiff replies , that a. was seised in fee , and gave the lands to b. and to his heirs males ; and the plaintiffe claimes the entail as heir male : and the defendants under the generall tail , absque hoc that a. was seised in fee , . h. . . by englefield , if in trespass the defendant plead the feoffment of a stranger , and the plaintiff saith , that he was seised in fee , and made a lease for years to the said stranger , who enfeoffed the defendant , he need not to traverse , absque hoc , that he was seised in fee , c. . part . the seisin in fee is traversable , br. travers . . acc . dodderidge justice , the seisin in this case is traverseable . ley chief justice , take away the seisin and then no gift , and therefore the seisin here is traverseable . haughton and chamberlain justices agreed . the court resolved , that either the seisin in fee , or the gift in tail , is traverseable . dodderidge justice , if you both convey from one and the same person , then you must traverse the conveyance . it is a rule c. . part . there the books are cited , which warrants the traverse of either . quod nota . it was adjudged for the plaintiff . trinit . . jacobi , in the kings bench. sir edward fisher and warner's case . the testator being indebted unto fisher , made warner his executor : and warner in consideration that fisher would forbear suing of him upon the assumpsit of the testator , did promise to pay him fifty pounds ; and in an action upon the case upon this promise , warner pleaded non assumpsit in the common pleas , and it was found for the plaintiff . and a writ of error was brought in this court , because it was not shewed for what consideration the testator did promise . . because it was not shewed , that warner the executor had assets in his hands . it was said by the councel of sir edward fisher , that they need not shew that he hath assets , because the defendant warner was sued upon his own promise . c. . part . the testator made a promise to pay to fisher fifty pound , and died ; the executor in consideration of the forbearance of a suit upon that promise of the testator , doth assume to pay , &c. the jury find for the plaintiff . the error is , that no time is limited , nor no place where the promise was made ; and also it is not shewed when the testator died , and so it is not shewed whether the promise were made in the life time of the testator , or not ? for if it were in the life time of the testator , then the promise was void . nor is the time of the forbearance shewed : and so no good consideration . hill. . jacobi , a consideration to forbear paululum tempus , is no good consideration by cook. and the like case was adjudged , . eliz. rot. . sackbdos case . we do alledge de facto , that we have forborn our suit , and that the defendant hath not paid us the money : dodderidge justice , it is alledged , that the plaintiff paid money to the testator , upon which he promised ; and the action now brought , is upon the promise of the executor : part of the promise , is , that he paid the fifty pound to the testator , and that ought to be proved in evidence to the jury : c. . part gregories case , if it be not specially named how he shall prove it . haughton , to forbear to sue him , is for all his life time , and not paululum tempus . dodderidge justice , exception was taken , that he doth not shew that the testator was dead at the time of the promise by the executor : it was shewed , that after the death of the testator , that he took upon him the execution of the will , and then promised ; and that of necessity must be after the death of the testator . trinit . . jacobi , in the king 's bench. william's and floyd's case . in an ejectione firme , the array was challenged , because it was made at the nomination of the plaintiffe : and by consent of the parties , two atturneys of the court did try the array : the question was , whether the triall of the array was good ? it was said by the councel which argued for the defendant , that it was not good . if one of the four knights be challenged , the three other knights shall try that challenge ; and if he be found favourable , he shall be drawn ; and if another of the knights be challenged , hee shall be tried by the other two ; and if one of the two be challenged , then a new writ shall issue forth to cause three knights to appear . . e. . . the two which quash the array ought to try the array of the tales ; for that they are strangers to them . the assent of the parties in this case is to no purpose ; for the consent of the parties cannot alter the law , neither can the king alter the law , but an act of parliament may alter the law. . ass . . h. . . by newton . . h. . . where a triall cannot be out of the county by the assent of the parties ; and if it be , it is errour . by the councel of the other side , contrary ▪ this triall of the array is much in the discretion of the judges ; for sometimes it is tried by the coroners , and they are strangers to the array . . ass . . . ass . . there the judges at their discretion appointed one of the array , and the coroners to try it ; . ass . . there , upon such a challenge it was tried by the coroners : and shard said , that the triall by any of them was sufficient , and by forriners de circumstantibus , . ass . . so as it rests much in the discretion of the judges . . ass . . there it was denied : but note , that that was in oyer and terminer ; and there it did not appear that the array was made at the nomination of one of the parties : but in other challenges it may be tried by one of the panell . but in our case , they were all challenged , was the objection . . e. . . billing . for if one of the parties will nominate all of the jurours to the sheriffe , it is presumed that they are all partiall : and 〈◊〉 ●his case , the whole array is challenged : but in other cases he may challenge one or two of the array , and yet the others may be indifferent . but admit it had been errour , yet being by the assent of the parties , it is no errour . baynams case in dyer . a venire facias by assent of the parties was awarded to one of the coroners , and good : dyer . . e. . office of court , . one of the twelve doth depart ; if the justices do appoint one of the panell to supply his place , it is erroneus ; but yet if it be with the assent of the parties , it is good ; so in our case , . e. . . brian saith , that he hath not seen more then two to try the array , yet by assent of the parties more may try it , . e. . . or . e. . . in a writ of right , processe issued to the sheriff to return four knights ; he returns two knights , and two esquires , without making any mention that there were no more knights in the county , the same is errour ; yet if two knights and two esquires had been returned by the assent of the parties , it had been good . . e. . dyer . a man cannot enter for non-payment of rent without a demand , yet by assent of the parties it may be good . . h. . . the triall in favour of liberty ought to be in the same county where the action is brought , and not where the manor is : but . e. . . by the assent of the parties it is sufficient . in the abridgement of the book of assizes . the books are cited to the contrary ; there it is said to be no law , where the coroners ●ry the panell : i agree , that where it is not against a fundamentall point of the common law , that the consent of the parties tollit errores : dodderidg justice , two questions are in this case , . if this tryall be good . . admitting it be not good , whether the assent of the parties doth make it good . first it is a meer matter in the discretion of the justices , which is not tied to any strict rule in law : in the book of the assizes it was tried by the coroners , because it was in the discretion of the justices : and the coroners are ministers to the court , and ought to attend at the assizes . the book of the assizes is the report of the cases which happened at the assizes in the circuits of the justices ; and they are not term cases . for the exception which is taken by him who made the abridgment of the book of assizes , is of no moment ; for the authour thereof was but a student , and no councellor at law. in these courts the coroners do not attend ; therefore sometimes two , four , or six of the panell are chosen to try those who are challenged , as the court shall think fit ; and if the triers cannot agree , we put them together into a room , and swear one to keep them , ( as a jury is kept : ) so as you see it rests much in the discretion of the justices , & court : and if there were a certain rule to try it , then it ought to be strictly observed . . ass . . there the triall was de circumstantibus . . the assent of the parties doth make it good . it is not a triall in point of the right of the cause , but only of the indifferency of the ministers : the array was challenged , because the sheriffe made it at the request of one of the parties ; and the sheriffe hath confessed it upon his examination . the principal array shal be first tried ; and if that be quashed , then the tales shall not be tried ; but if it be affirmed , then two of the panell shall try the panell , and two of the tales shall try the tales . this is a triall only of indifference , and not of the fundamentall point of the cause . if the plaintiffe require the venire facias to the coroners , because that the sheriffe is chosen ; the defendant shall be examined if he will agree to it : if he will not agree , but the sheriffe returneth the jury , the defendant in that case shall not challenge the jury , or any of the array : the four knights in the writ of right shall choose the other twenty of the grand assize , who shall be joyned with them , and they shall be the judges of the twenty , when they are named by them , . e. . . haughton justice , the appearance by atturney by assent of the parties , is not errour , although by the law the plaintiffe ought for to appear in proper person . chamberlain justice would be advised , because he had not seen the books . ley chief justice , when the whole panel , as in this case , comes to be challenged , then it is in the discretion of the justices to choose triers ; and chiefly in this case , because all the array is partiall . if the coroners be absent , 〈◊〉 is good to take two atturneys of the court , who the court know to be honest by their honest carriage , and fair practice . the assent of the parties strengthens this case . it is a rule , that the assent of the parties cannot make that good which is against any fundamentall point of the law : therefore it is best to view the presidents , and to draw a jurour ; but that we cannot do of our selves by the law , yet with the assent of parties we may do it . it is a contempt and a deceit to the court , if his assent be entred upon record , and notwithstanding that the defendant will question the matter by a writ of error , or otherwise relinquish his consent ; and for such contempt the court may commit him , and fine him also : but if the matter be not a matter of record , but be onely by a rule of the court , then we may award an attachment onely against the party . in this case , the triall of the panell was good , and so was it afterwards adjudged by the whole court. quod nota . pasch . . caroli , in the king 's bench. evers and owen's case . samson evers the guardian of compton evers , did sue owen the executor of the lady anne evers for a legacy , before the councell of the marches of wales . henden serjeant moved for a prohibition , and said , that by law , no intent of a will ought to be averred contrary to the words of the will , c. . part . cheyneys case : and so no equity shall be taken upon a forrain intent , contrary to that which is in the will. . he said , that the party might not sue in the marches of wales for a legacie ; for that the party ought to sue for the same in the ecclesiasticall court. banks ▪ contrary , they may proceed there in an ecclesiasticall cause , wherein there is cause of equity : the statute of . h. . cap. . giveth power unto them to proceed as they proceeded heretofore by commission . and before that statute they proceeded there in case of a legacy ; and so are divers presidents ; therefore no prohibition is to issue . samson evers is the kings atturney for the marches of wales , and his personall attendance is requisite there : and this court cannot grant a prohibition to stay a suit , when he cannot sue in this court for the same thing . finch recorder contrary . if you shew presidents , yet they will not bind this court , and give power unto them to hold plea of that which they ought not to hold plea of . it is usuall to grant a prohibition , if the court of requests holds plea of a legacy , if it be not by reason of some speciall circumstance ; and it is usuall to dismisse legacies out of the chancery : and no priviledges shal be granted unto an executor , administrator , or guardian . hyde chief justice : two have an obligation as executors , and the one releaseth ; it is good , and a good cause of equity against him who releaseth : a will is made , and a. is made executor , and no trust is declared in the will ; and at his death the testator declares , that his will is for the benefit of his children : may not this intent be averred ? there is nothing more common . dodderidg justice , for the making of an estate , you cannot averre otherwise then the will is ; but as to the disposition of the estate , you may averre . jones justice , there are two executors ; one commits wast , or releaseth , &c. the other hath no remedy at the common law , for that breach of trust . the reason of chenyes case , c. . part is , whosoever will devise lands , ought to do it by writing ; and if it be without the writing , it is out of the will , although his intent appeareth to be otherwise . before the statute of . h. . cap. . the marches of wales held plea of all things , for things were not then setled . but the said statute gave them power and authority to hear and determine such causes and matters as are , or afterwards shall be assigned to them by the king , as heretofore had been used , and accustomed : now if it be assigned by the king , yet if it be not a thing accustomed and used to be pleaded there , it is not there pleadable . so if it be within the instructions made by the king , yet if it be not used and accustomed , it is not pleadable there ; but it ought to be within the instructions , and also accustomed and usuall ; adultery , symony , and incontinency , are within their instructions , and are accustomed . the things being accustomed to be pleaded there , have the strength of an act of parliament ; but by the instructions they have no power to proceed in case of legacy . then let us see if the same be included within the generall words ( things of equity ) within the instructions : and then i will be tender in delivering of my opinion , if a legacy be pleadable there or not ? whitlock justice : the clergy desired that they might forbear to intermeddle with legacies : five bishops one after the other , were presidents of the marshes there : and they draw into the marches spirituall businesse : but originally it was not so ; their power was larger then now it is , for they had power in criminall causes , but now they are restrained in that power . there is a common law ecclesiasticall , as well as of our common law. jus commune ecclesiasticum , as well as jus commune la●cum . the whole court was of opinion , that the kings atturney in the marches being out , we ought to have priviledge there . in the chancery , there is a latine court for the officers of the court , and the clarks of the court for to sue in . but in the principal case , a prohibition was not granted , because there was much matter of equity concerning the legacy . it was adjourned . pasch . . caroli , in the kings bench. harley and reynold's case . harvey brought an action of debt upon an escape against reynolds ( hill. . car. ) reynolds pleaded , that before the day of escape , scil . the twentieth day of january . car. that the prisoner brake prison and escaped ; and that he afterwards , viz. before the bringing of this action ; viz. . die maii . car. took the prisoner again upon fresh suit. anderws for the plaintiff , reynolds is bound to the last day . viz. . maii , and not the day before the bringing of the action ; for the bill bears date , hill. . car. and the terme is but one day in law , c. ▪ part . and so no certain day is set for the jury to find . the day which reynolds sets that he retook the prisoner is the eighth day of may , and he shall be bound by that , com. . a. . h. . . where a day is uncertain , a day ought to be set down , for a day is material for to draw things in issue , c. . part . the plaintiff shewed , that . maii . eliz. by deed indented and inrolled in the common pleas ter. pasc . in the said thirtieth year ( within six monthes according to the statute ) for the consideration of one hundred pounds , did bargain and sell : but he further said , that after the said seventh day of may , in the said thirtieth year , he levied a fine of the lands to the now plaintiff ; after which fine , viz. . aprilis , in the said thirtieth year , the said deed indented was enrolled in the common pleas. note , that another day more certain was expressed , therefore the mistaking of the day shall not hurt : and there it was helped by averment , . h. . . repleader . in waste , the defendant said , that such a day , before the writ brought , the plaintiff entred upon him , before which entry no waste was done , &c. strange , it might be that he entred again ; wherefore the court awarded that he should recover . co. entries . in dower the tenant vouched a stranger in another county , who appeared ; and there the replication is , viz. die lunae , &c. so the day ought to be certain . . h. . . in a formedon , if the defendant plead a thing which by the law he is not compelled to do ; and the plaintiffe reply , that she is a feme sole and not covert , it is good ; but if he plead , that such a day , year and place , there the trial shall be at the particular place , otherwise the trial shall be at the place where the writ bears date . c. part , palmers case ; if the sheriff sell a term upon an extent , and puts a date to it , scil . recites the date , and mistakes it , the sale is not good , for there is no such lease , dyer . then it is said . octobris , and there by the computation of time it was impossible ; and so here the time is impossible , scil . that . maii . car. should be before hill. . caroli ; for the taking is after the action brought , and so naught to bar the plaintiff : it is the substanre of his bar upon which he relieth , and so no matter of form : . h. . there upon an escape , the defendant said , that such a day , ante impetrationem billae in this court ; scil . such a day , he retook him ; and the day after the scilicet , is after the purchase of the writ : there the scilicet and the day expressed shall be void , and it shall be taken according to the first day expressed : if the sheriff had retaken him before the filing of the writ , it had been a good plea in bar , otherwise not ▪ calthrope contrary , h. brought debt , hill. . jacobi against cropley ; and . junii . jacobi , cropley was taken in execution , and delivered in execution to r. by habeas corpus ; afterwards . caroli , cropley escaped , and h. brought debt against r. who pleaded a special plea , and shewed , that . januarii . caroli . cropley brake prison and escaped , and that he made fresh suit untill he took him ; and that before the purchase of the bill ; scil . maii . caroli , he was retaken , . e. . if he retake him before the action brought , it is a good bar ; so if the taking be before the action brought , r. is excused . we say , that postea , & antè the purchasing of the bill ; and i suppose we need not lay down any day , but the postea , & antè makes it certain enough . if the viz. be repugnant to our allegation , it is surplusage . . eliz. in communi banco , bishops case , trespass is brought for a trespass supposed to be done . maii . el. it is ruled in that case , that the videlicet doth not vitiate the premises ; because it is surplusage ▪ trinit . . el. in the kings bench , garford and gray's case , in an avowry : it was shewed , that such an abbot surrendred , . h. . and that the king was seised of the possessions of the said abby ; and that postea , scilicit . h. . the king did demise , and that the same descended to king ed. . there it was ruled that postea had been sufficient , though he had not shewed the year of the demise of the king ; so here , postea , & ante do expresse that he was taken before the bill brought . dodderidge justice , if the day had been certain at the first , and then he cometh and sueth , that postea , videlicet such a day , and alledgeth another day which is wrong , there the videlicet is not material ; but if the first day be uncertain , then the videlicet ought to be at a certain day , otherwise it is not good . curia , if you had left out your time , ( your videlicet ) it had been good , for you must expresse a certain time ; for when the time is material , it ought to be certain . if you had layed down a certain day of the purchase of his bill , then the ante would have been well enough . dodderidge justice , if a thing is alledged to be done in the beginning of the term , quaere if that shall be intended the first day of the term ; if you can make it appear that it must be intended of necessity of the first day of the term , then you say somewhat , and then the videlicet is void and surplusage ▪ judgement was given for the plaintiff . pasch . . caroli , in the kings bench. dean and steele's case . an action upon the case for words , was brought for words spoken in the court of sudbury ; and it was layed , that he did speak the words at sudbury , but did not say infra jurisdictionem curiae . . the judgement in the action upon the case was , capiatur : and for these two errors the judgement was reversed . pasch . . caroli , in the kings bench. god and winche's . this case was put by serjeant astley : a lease is made for life by husband and wife ; and the covenants were , that he should make such reasonable assurance as the counsel of the lessee should advise ; and the counsel advised a fine with warranty by the husband and wife , with warranty against the husband and his heirs ; and the defendant did refuse to make the assurance ; in an action of covenant brought , it was moved , that it was not a reasonable assurance to have a fine with warranty , because the warranty did trench to other land. but the court did over-rule it , and said , that it is the ordinary course in every fine to have a warranty , and the party may rebut the warranty . pasch . . caroli , in the kings bench. it was cited to be adjudged , that if a man purchase the next avoidance of a church with an intent to present his son , and afterwards he doth present his son , that it is symony within the statute of . eliz. ter. mich. . caroli , in the king 's bench. hill and farley's case . in debt brought upon a bond , the case was , a man was bound in a bond , that he should perform , observe , and keep the rule , order , and finall end of the councel of the marches of wales . and in debt brought upon the bond , the defendant pleaded , that the councel of the marches of wales nullum fecerunt ordinem . the plaintiffe replied , that concilium fecerunt ordinem , that the defendant should pay unto the plaintiffe an hundred pound . the defendant did demurre in law upon the replication : and the only question was , if the plaintiffe in his replication ought to name those of the councel of wales , who made the award by their particular names . jermyn , who argued for the plaintiffe , said , that he ought not to name the councellors by their proper names ; and therefore he said , that if a man be bounden to perform the order that the privy councel shall make , or the order which the councel should make , that in debt upon the same bond , if the defendant saith that he hath performed consilium generally of the councel , without shewing the particular names of the councellors , it is good . and he vouched . h. . . . e. . . and com. . sir richard buckleys case , that the number of the esliors ought not to be particularly shewed : but in an action brought upon the statute of . h. . he may declare generally , that he was chosen per majorem numerum , and that is good . and . e. . . in debt upon a bond , that the defendant shall serve the plaintiffe for a year , in omnibus mandatis suis licitis : the defendant said , that he did truely serve the plaintiff untill such a day as he was discharged ; and it is there holden , that he is not compellable to shew the certainty of the services . banks contrary , and said , that he ought to name the councel by their particular names : and therefore in this case he ought to have pleaded specially , as in . e. . . if a man will plead a divorce , deprivation , or a deraignment , he ought to shew before what judge the divorce , deprivation , or deraignment was : so . h. . . if a man will plead a fine , he must shew before what judges the fine was levied , although they be judges of record . and he took this difference , that the judges ought to take notice of the jurisdiction of generall courts , which are courts of record , and of the customes of those courts : but of particular courts which have but particular jurisdictions , and particular customes , the judges are not to take notice of them , nor of the lawes and customes of such courts , if they be not specially shewed unto them . and therefore although it was alledged , that it was the generall usage to plead awards , or orders made before the councel of the marches of wales , as in the principall case , yet he held that the judges were not to take notice thereof . and therefore the councellors who made the order , ought to be particularly named . . he said that the replication was not good , because the plaintiffe in his replication doth not shew that the order was made by the president , and the councel ; for by the statute of . h. . it ought to be made by the president , and the councel . . he said , that the replication was not good , because the plaintiffe doth not shew within the record , that the matter of which the order was made , was a matter which was within their jurisdiction . it was adjourned . mich. . caroli , in the king 's bench. shutford and borough's case . in an action upon the case upon a promise , the case was this , the defendant had a dog which did kill five of the plaintiff's sheep , and the defendant in consideration the plaintiffe would not sue him for the said sheep ; and also in consideration that the plaintiff would suffer the defendant to do away the sheep , promised to give him recompence for the said sheep upon request : and the plaintiffe alledged the promise to be made , . jacobi , and that afterwards . caroli , he did request so much of the defendant for the said sheep : the defendant pleaded in bar the statute of . jacobi , cap . of limitation of actions , and alledged , that the action was not brought within six years after the cause of action accrued : which was the promise . and it was adjudged that the plea in bar was not good ; for it was resolved , that where a thing is to be done upon request , that there , untill request , there is no cause of action ; and the time and place of the request is issuable . and so was resolved , . caroli , in the kings bench in peck's case : and hill. . jacobi , in the same court in hill and wades case ; and in the principall case the request was , . caroli , and that was within the time limited by the statute of . jacobi . and the meaning of the statute was , but to barre the plaintiffe but from the time that he had compleat cause of action , and that was not untill the request made . and when divers things are to be done and performed before a man can have an action , there all these things ought to be compleated before the action can be brought . and therefore , if a man promise to pay i. s. ten pound when he is married , or when he is returned from rome , and ten years after the promise , i. s. marrieth , or returneth from rome , because the marriage , or the returne from rome are the causes of the action , that the party shall have six years after his marriage , or return to bring his action , although that the promise was made ten years before . and in the principall case , the cause of action is the breach , and that cannot be untill after the request made ; and where a request is material , it ought to be shewed in pleading ▪ and so it was resolved by the whole court , ( nemine contradicente ) that the action was well brought , and within the time limited by the statute . and judgement was entred for the plaintiffe . mich. . caroli , in the star-chamber . floyd and sr tho. cannon's case . it was agreed by the lord keeper coventry , and the whole court in this case , that if a man did exhibite a bill against another for oppression ; and layeth in this bill , that the defendant did oppress a. b. and c. particularly , and an hundred men generally ; that the plaintiffe by his witnesses must prove that the defendant hath oppressed a. b. and c. particularly , and shall not be allowed to proceed against the defendant upon the oppression of the others layed generally , before his particular oppression of a. b. and c. be proved . but if the charge layed be generall , and not particular , as if the plaintiffe in his bill saith , that the defendant hath oppressed an hundred men generally , there he may proceed and examine the oppression of any of them . and richardson chief justice of the common pleas said , that if a man exhibiteth a bill against another for extortion , there the sum certaine which he did extort , must be laid particularly in the bill . and he cannot say , that the defendant did extort divers sums from divers men generally . and so was it adjudged in reignolds case in this court. also in every oppression there ought to be a threatning of the party , for the voluntary payment of a greater sum where a lesser is due , cannot be said extortion . and afterwards the bill of sir thomas cannon was dismissed for want of proofs ex parte querentis . mich. . caroli , in the star-chamber . huet and overie's case . in a ryot for cutting of corn , it was agreed by the whole court , that if a man hath title to corn , although that he cometh with a great number to cut it with sickles , it is no riot ; but if he hath not any title , although that he doth not come with other weapons then with sickles , and cutteth down the corn , it is a riot . and it was agreed by the whole court in this case , that witnesses which were defendants , and which are suppressed by order of the court , although that afterwards there he no proceedings against them , yet they shall not be allowed of at the hearing of the cause in that court. and this was declared to be the constant rule of that court. trinit . . caroli , in the kings bench. the earle of pembroke and bostock's case . in a quare impedit judgment was given ; and the same term a writ of error is delivered to the same court , before a writ to the bishop is awarded to admit the clark. it was holden by the whole court , that the writ of error ought to have been allowed , without any other supersedeas , because a writ of error is a supersedeas in it self ▪ whitlock justice , if in this writ of error the judgement be affirmed , the defendant in the writ of error shall have damage . the bailiffs , aldermen , burgesses , and commonalty of yarmouth and cowper's case . in a quo warranto brought against the bailiffs , aldermen , &c. they did appear by warrant of atturney ; and one of the bailiffs named in the warrant did not appear nor agree to it . it was holden by the whole court , that the appearance of the major or greater part , being recorded , was sufficient . and it was also holden , per curiam , that although the warrant of atturney was under another seal , then their common seal , yet being under seal , and recorded , it cannot be annulled ; vide . h. . if two coroners be , and one maketh a return , the same is good ; but if the other doth deny it , then it is void . mich. . caroli , in the kings bench. lancaster's case against kightley and sinews . judgement was given in a scire facias against the bail. a writ of error was brought by the defendant in the principall action and the bail. and the opinion of the court was , that a writ of error would not lie , hecause the judgements against them were severall , but they ought to have severall writs of error . and the books of . h. . . . e. . . and . eliz. dyer . were vouched . and so was it adjudged , hill. . jacobi , rot. . in the exchequer chamber , in doctor tennants case . where a writ of error was brought by the defendant and the bail ; and it was adjudged , that they could not joine in an writ of error , but ought to have severall writs . mich. . caroli , in the kings bench. eveley and eston's case . in trespass ; it was found , that a man was tenant in tail of certain farme lands called estons ; and that a fine was levied of lands in eslington , eston and chilford , whereas eston lay in another parish , appell d. calthrope argued , that the land in eston did passe by the fine , although the parish was not named , for that the writ of covenant is a personall action , and will lie of lands in a hamlet or lieu conus , . e. : . vide . e. . . . ass . . . e. . . . e. . . . e. . brev. . . he said , that it was good , for that the plea went only to the writ in abatement ; but when a concord is upon it , which admits it good , it shall not be avoided afterwards . . he said , that a fine being a common assurance , and made by assent of the parties , will passe the lands well enough , e. . . . e. . . and he vouched pasch . . jacobi , in the kings bench , rot. . monk and butlers case . where it was adjudged that a fine being but an arbitrary assurance , would passe lands in a lieu conus ; and so he said it would do in a common recovery . and richardson said , that if a scire facias be brought to execute such a recovery , nul tiel ville ou hamlet , is no plea , and the fine or recovery stands good , vide . e. . . e. . stone . and the opinion of the court was , that the lands did well passe by the fine . mich. . caroli , in the kings bench ▪ cawdry aud tetley's case . cawdry being a doctor of physick , the defendant praemissorum non ignorans , to discredit the plaintiff with his patients , as appeared by the evidence , spake these words to the plaintiffe , viz. thou art a drunken fool , and an asse ; thou wert never a scholer , nor ever able to speak like a scholer . the opinions of jones and crook justices , were , that the words were actionable , because they did discredit him in his profession ; and hee hath particular losse , when by reason of those words , others do not come to him . and palmers case was vouched : where one said of a lawyer , thou hast no more law then a jackanapes ; that an action did lie for the words : contrary , if he had said , no more wit. and william waldrons case was also vouched ; where one said , i am a true subject , thy master is none ; that the words were actionable . mich. . caroli , in the kings bench. the king , and baxter & simmon's case . the case was this , tenant in tail the remainder in taile , the remainder in fee to tenant in tail in possession : tenant in tail in remainder by deed enrolled , reciting that he had an estate tail in remainder , granted his remainder and all his estate and right unto the king and his heirs , proviso , that if he pay ten shillings at the receipt of the exchequer , that then the grant shall be void . tenant in tail in possession suffers a common recovery , and afterwards deviseth the lands to i. s. and dieth without issue . jacobi . afterwards . jac. he in the remainder in tail dieth without issue ; but no seisure is made , nor offence found , that the lands were in the kings hands . noy , who argued for the king : the first point is , when tenant in taile recites his estate , and grants all his estate and right to the king and his heirs , what estate the king hath ? and if by the death of tenant in tail without issue , the estate of the king be so absolutly determined , that the kings possession needs not to be removed by amoveas manum : and he argued , that when the lands are once in the king , that they cannot be out of him again , but by matter of record . . e. . . com. . and a bare entry upon the king , doth not put the king out of possession of that which was once in him : and so was it adjudged . eliz. in the lord paget's case ▪ as walter chief baron said . and noy took this difference , . h. . traverse . and . e. . traverse . if a particular estate doth determine before that the king seise , there the king cannot afterwards seise the lands . but if the king hath once the lands in his hands or possession , there they cannot be devested out of him but by matter of record . so f. nat. br. . if a man be seised of lands in the right of his wife , and be outlawed for felonie , for which the lands come into the kings hands , and afterwards hee who is outlawed dieth ; there a writ of diem clausit extremum shall issue forth : which proveth , that by the death of the husband the lands are not immediately out of the king , and setled in the wife againe . . e. . fitz. petition . tenant in taile is attainted of treason , and the lands seised into the kings hands ; and afterwards tenant in taile dieth without issue , he in the remainder is put to his petition : which proveth , that the lands are not presently after the death of tenant in taile without issue , out of the king. but he agreed the cases : if tenant in taile acknowledgeth a statute , or granteth a rent charge , and dieth , that the rent is gone and determined by his death , as it is agreed in . assisarum . the second point argued by noy , was ; that although that there was not any seizure or offence found which entituled the king , yet the deed enrolled in the chancery which is returned in this court , did make sufficient title for the king : & as . e. . p. . is , the judges of courts ought to judge upon the records of the same courts . in . h. . . a bayliff shewed , that a lease was made to t. his master for life , the remainder to the king in fee , and prayed in ayd of the king : and the plaintiff in chancery prayed a procedendo : and it was ruled that a procedendo should not be granted without examination of the kings title . thirdly , he said , that in this case he who will have the lands out of the possession of the king , ought to shew forth his title ; and in the principall case it doth not appear that the defendant had any title . vide . h. . . athowe serjeant argued for the defendant , & he said , that in this case the king had an estate but for the life of tenant in tail . and therefore he said , that if tenant in tail grant totum statum suum , that an estate but for his own life passeth , as litt. is , . and . h. . . acc . so if tenant for life the remainder in taile bee , and he in the remainder releaseth to tenant for life in possession , nothing passeth but for the life of tenant in tail . . h. . . if tenant in tail be attainted of treason or felonie , and offence is found , and the king seiseth the lands , he hath an estate but for the life of tenant in tail . and he cited . eliz. c. part . blithmans case . where tenant in tail covenanted to stand seized to the use of himself for his own life , and after his death to the use of his eldest son in tail , and afterwards he married a wife and died ; that the wife should not be endowed : for when he had limited the use to himself for his life , he could not limit ar● remainder over . and edwards case , adjudged in the court of wards , which was , that there was tenant for life the remainder in tail , he in the remainder granted his remainder to i. s. and his heirs ; and afterwards tenant for life dyed , and then the grantee dyed , his heirs within age , & it was adjudged that the heir of the garntee should not be in ward , because the tenant in tail could not by his grant grant a greater estate then for his own life . but he said , that in the principall case it appeareth , that the tenant in tail in remainder hath particularly recited his estate . and where it appeareth in the conveyance it self , that he hath but an estate in tail , a greater estate shall not passe . as if tenant for life granteth a rent to one and his heirs , the same at the first sight seems to be a good rent in fee ; but when it appeareth in the conveyance that the grantor was but tenant for life , there , upon the construction of the deed it self , it cannot be intended that he granted a fee , but that an estate for life passed only in the rent . secondly , he argued , that although the estate in tail in the principall case was an abeyance ; yet a common recovery would barr such estate tail in abeyance . and therewith agreeth c. . part sr hugh cholmleys case . . he said , that the estate was out of the king , and vested in the party without any offence found , as . e. . isabell goodcheaps case . a man devised houses in london holden of the king in tail , and if the donee dyed without issue , that the lands should be sold by his executors . the devisee died without issue , the bargain and sale of the lands by the executor doth divert the estate out of the king without petition , or monstrans de droit . so , if there be tenant in tail the remainder in tail , and tenant in tail ●n remainder levieth a fine of his remainder to the king , and afterwards dyeth without issue , the kings estate is determined , and there needs no petition or monstrans de droit . . he said , that in the principall case , nothing was in the king , because it doth not appeare that there was any seisure , or offence found to entitle the king. and the tenant in tail in the remainder died in the life of king james ; and then if the kings estate were then determined as before by the death of the tenant in taile , the king which now is never had any title . and hee said , that he needed not to shew a greater title then he had . and hee took a difference when tenant in taile doth onely defend or make defence , and when he makes title to lands ; in the one case he ought for to shew , that the tenant in taile died without issue , and in the other case not : and therefore in the principall case he demanded judgment for the defendant . the case was adjourned to another day . mich. . caroli , in the star-chamber . tailor and towlin's case . a bill was preferred against the defendant , for a conspiracy to indict the plaintiff of a rape . and the plaintiff aleadged in his bill , that an indictment was preferred by the defendant against the plaintiff before the justices of assise and nisi prius in the county of suffolk ; and did not lay it in his bill , that the indictment was preferred before the justices of oyer and terminer , and gaole delivery : and the same was holden by the court to be a good exception to the bill , for that the justices of assise and nisi prius , have not power to take indictments . but afterwards upon veiw of the bill , because the conspiracy was the principall thing tryable and examinable in this court , and that was well layd in the bill , the bill was retayned , and the court proceded to sentence . and in this case richardson justice said , that in conspiracy the matter must bee layed to be falsè et malitiosè : and if it be layed for a rape , it must be layd , that there was recens persecutio of it , otherwise it will argue a consent . and therefore , because the defendant did not preferre an indictment of rape , in convenient time after the rape supposed to be done , but concealed the same for half a years time , and then would have preferred a bill of indictment against the plaintiff for the same rape , he held that the indictment was false and malitious . and hyde chief justice said , that upon probable proof a man might accuse another before any justice of peace , of an offence ; and although his accusation be false , yet the accuser shall not be punished for it . but where the accusation is malitious and false , it is otherwise ; and for such accusation he shall be punished in this court. trinit . . caroli , in the king bench. jones and ballard's case . an action upon the case was brought for these words , viz these jones are proper witnesses , they will sweare any thing ; they care not what they say ; they have already forsworn themselves in the chancery , and the lord keeper committed them for it . jermyn . took exceptions , because it was not said to be in the court of chancery ; nor that it was in any deposition there taken upon oath . but it was adjudged per curiam , that the action would lie ; and jones justice said , that the addition [ in the chauncery ] was as much as if he had said , he was perjured there . and h●msies case was vou●hed by him : where one said of a witness , presently after a tryall at the guild hall in london , you have now forsworn your self , that it was adjudged that the words were actionable . trinit . . caroli , in the kings bench. . symme's and smith's case . a woman being entituled to copyhold lands of the manor of d , did covenant , upon reasonable request to be made unto her , to surrender the copy-hold land according to the custome of the manor . and it was found that the custome of the manor is , that a surrender may be made either in person , or by letter of atturney : and that the plaintiff did request the woman to make the surrender by a letter of atturney ; which shee refused to do . and whether shee ought to surrender presently , or might first advise with her councell , was the question . it was argued for the plaintiff , that shee ought to do it presently : and munser's case , c. . part , and . eliz. dyer . . sir anthonie cooks case were vouched , that she was to do it at her perill : and the election in this case was given to the covenantee ; and hee might require it to be done either in court in person , or by letter of atturney : and c. . part , sir rowland heywards case : and c. . part , hallings case was vouched to that purpose . rolls contrary , for the defendant : and he said , that the woman was to have convenient time to do it : and the words are upon reasonable request , which implies a reasonable time to consider of it : and there might be many occasions , both in respect of her self and of the common wealth , that she could not at that ●ime do it . and hill. . eliz. in the common pleas , perpoynt and thimbelbyes case : a man covenants to make assurances ; it was adjudged hee shall have reasonable time to do it : in . eliz. the opinion of popham was ▪ that if a man be bounden to make such an assurance as councell shall advise : there , if councell advise an assurance , he is bound to make it . but if it were such [ reasonable assurance ] as councell shall advise ; there , if the councell do advise , that he shall enter into , seale and deliver a bond of a thousand pound for the payment of an hundred pound at a day ; hee is not bound to doe it , because it is not reasonable . vide . ed . . cap. . part bookers case . doct. & stud. . . h. . . secondly , he said , that the request in the principall case was not according to the covenant : for the election in this case was on the womans part , and not on the covenantees part , and shee was to doe the act , viz. to surrender : and where election is given of two things , the same cannot be taken from the party : and if it should be so in the principall case , the covenantee should take away the election of the covenanter . and where the manner of assurance is set down by the parties , there they cannot vary from it ; and in this case the manner is set down , in which the covenanter hath the election , because shee is to do the act . and hee said , that the woman was not bounden afterwards to surrender in court upon this request , because the request was as it were a void request : and it is implyed by the words , that shee in person ought to make the surrender : and so hee prayed judgment for the defendant . it was adjourned . trinit . . caroli , in the king 's bench. . hye and dr. wells case . doctor william wells sued hye in the ecclesiasticall court for defamation , for saying to him , that hee lyed : and the plaintiffe prayed a prohibition : it was argued for the defendant , that in this case no prohibition should goe ; for it was said , that by the statute of . edw. . of consultation ; when there is no writ given in the chancery for the party grieved in the temporall court , there the spirituall court shall have the jurisdiction : and in this case there is no writ given by law. and fitzherbert natura brevium . h. a consultation doth not lie properly , but in case where a man cannot have his recovery by the common law in the kings courts : for the words of the writ of consultation are , viz. proviso quod quicquid in juris nostri regii derogationem cedere valcat aliqualiter per vos nullatenus attemptetur : and vide register . falsarius is to be punished in the spirituall court. and fitzherb . nat. brev. . i. a man may sue in the spirituall court , where a man defames him , and publisheth him for false . vide linwood in cap. de foro comp●tenti . acc . trin. . jacobi , in the common pleas , boles case , rot. . a man called a poor vicar , poor rascally knave ; for which the vicar sued him in the spirituall court : and by the opinion of the whole court , after a prohibition had been granted , upon further advice a consultation was granted . . it was objected , that the party might be punished by the temporall judges and justices for the words . to which it was answered , that although it might be so , ( which in truth was denied , ) yet the party might sue for the same in the spirituall court. and many cases put , that where the party might be punished by either lawes , that the partie had his election in what court he would sue . and therefore it was said , that if a man were a drunkard , he might be sued in the ecclesiastical court for his drunkennesse ; and yet he might be bounden to his good behaviour for the same by the justices : so the imputed father of a bastard child , may be sued for the offence either in the spirituall court , or at the common law by the statute of . eliz. and . jacobi . so f. n. b. . k. if a man sue in the spirituall court for taking and detaining his wife from him to whom he was lawfully married ; if the other party sue a prohibition for the same , yet he shall have a consultation quatenus , pro restitutione uxoris suae duntaxat prosequitur ; and yet he may have an action at the common law de uxore abducta cum bonis viri ; or an action of trespasse . maynard , contrary . by the statute of articuli cl●ri , although that the words be generall , yet they do not extend to all defamations . and by register . where the suit is for defamation , there the cause ought to be expressed & ought to be wholly spirituall , as the book is in . e. . and c. . part in kenn's case : and in the principal case , it is not a matter affirmative which is directly spirituall : and therefore . jacobi , where a suit was in the ecclesiasticall court for these words ; thou art a base and paultery rogue , a prohibition was awarded . and so vinor and vinors case , trinit . . jacobi , in the king's bench , thou art a drunken woman , thou art drunk over night , and mad in the morning . . hee said , that crimen falsi in the spirituall court , is meant of counterfeiting of the seal , or of forgery : and crimen falsi cannot be intended a lie . if in ordinary speech one sayes , that 's a lie ; if the other reply , you lie ; that is no defamation : for qui primum peccat ille facit rixam . trinit . . eliz. lovegrove and br●wens case . a man said to a clark , a spirituall person , thou art a woodcock , and a foole : for which words he sued him in the spirituall court ; and in that case , a prohibition was awarded . it was adjourned . trinit . . caroli , in the kings bench. gwyn and gwyn's case . a quod ei deforceat was brought against two , they appeared and pleaded severall pleas , and the issues were found against both of them , and a joint judgement was given against them both ; and they brought a writ of error thereupon in the kings bench. and the opinion was , that the judgement was erroneous , and that the writ of error would well lie . so in a writ of dower brought against two tenants in common , who plead severall pleas , the judgement must be according to the writ . but barkley said , that if in a writ of right by two , the mise is joyned but in one issue , where severall issues are , the judgment ought to be severall . quaere , quia obscurè . trinit . . caroli , in the kings bench. bland's case . the case was this , thomas , spence was a lessee of lands for one hundred years ; and he and jane his wife , by indenture , for valuable consideration , did assign over to tisdale , yeilding and paying to thomas spence and his wife and the survivor , the rent of seventeen pounds yearly , and every year during the terme ; proviso , that if the rent be arrere by forty daies , that thomas and his wife , or the survivor of them should enter . thomas spence died , his administrator did demand the rent , and being denied , entred for the condition broken . calthrope argued , that the reservation to the wife was void because she had not any interest in the land , and also never sealed the indenture of assignment , but was as a stranger to the deed , and so he said that the wife could not enter for the condition broken , nor make any demand of the rent . the l l point was , admitting that the wife could not enter , nor demand the rent ; whether the administrator of the husband might demand it and enter for the condition broken ; because the words are , yeilding and paying to thomas spence and jane his wife , and the survivor of them during the term , and no words of executors or assigns are in the case : and he conceived the administrator could not ; and so he said it had been resolved in one butcher and richmonds case , about . jacobi . banks contrary , and he said , it was a good rent and well demanded , and the reservation is good during the term , to the husband and wife ; and although the word reddendo doth not create a rent to the wife , because the husband cannot give to the wife ; yet the solvendo shall gain a good rent to the wife , during the life of the wife ; and the reservation shall be a good reservation to him and his administrators during the survivor . vide c. . part goodales case . e. . . . e. . . and admitting that the rent shall be paid to the wife , yet the condition shall go to the administrator . . the word solvendo makes the rent good to the wife , and amounts to an agreement of the lessee to pay the rent to them , and the survivor of them ; and that which cannot be good by way of reservation , yet is good by way of grant and agreement ; and many times words of reservation or preception , shall enure by way of grant . vide e. . . ass . . h. . . richard colingbrooks case . . e. . . . e. , feasts and fasts . richardson justice , the reservation being during the term , is good , and shall go to the administrator . jones justice contrary , it is good only during the life of the lessor ; and so was it adjudged in edwyn and wottons case , . jacobi . crook justice accorded , the administrator hath no title , and the wife is no party to the deed , and therefore the rent is gone by the death of the husband . if it had been durante termino generally , perhaps it had been good ; but durante termino praedicto to him and his wife , it ceaseth by his death . and the words durante termino , couple it to him and his wife , and the survivor ; and it cannot be good to the wife who is no party , nor sealed the deed ; neither can it inure to the wife by way of grant. and the words reddendo and solvendo are synonima ; and the administrator is no assignee of the survivor , for she cannot assign because she hath no right in the rent . barkley justice , the intention of the parties was , that it should be a continuing rent , and judges are to make such exposition of deeds , as that the meaning of the parties may take effect . i do agree , that the wife could not have the rent , neither by way of reservation , nor by way of grant , if she were not a party to the indenture : but here she is a party to the deed ; for it is by deed indented made by the husband and wife , and the husband hath set his seal to it . and . the solvendo doth work by way of grant by the intent of the parties : the reddendo shall go and relate as to the husband , and the solvendo to the wife ; and he agreed the case . h. . br. cases : because there expressum facit cessare tacitum ; but in case of a lease for years , the words , [ reserving rent to him ] shall go to the executor , who represents the person of the testator ; and . el. it was adjudged in constables case ; and littleton agrees with it , that the executor shall be possessed and is possessed in the right of his testator . and therefore if an alien be made an executor , in an action brought by him the tryal shall not be per med●●tatem l●nguae . and this case is the stronger , because the reservation is during the term. and c. . part in malleries case , that the law shall make such a construction upon reservation of rent upon a lease as may stand with the intent and meaning of the parties ; and therefore in that , where an abbot and covent made a lease for years , rendring rent yearly during the term , to the abbot and covent or to his successors , it is all one as if it had been to him and his successors ; and although the words be joint or in the copulative , yet by construction of law , the rent shall be well reserved during the terme ; for if the reservation had been only annually during the terme , it had been sufficient , and his successors should have had the rent . quaere the principall case , for the judges differed much in their opinions . hill. . caroli , in the kings bench. the king against hill . an information was by the kings atturney against hill and others , upon the statute of . h. . of maintenance . where the point was , a man was out of possession , and recovered in an ejectione firme in may . car. and habere possessionem was awarded ; and . sept. . car. he sold the land : and whether he might sell presently , or not ? was the question . and it was determined , that he being put in possession by a writ of habere facias possessionem , that he might sell presently . vide com. crookers case ; and c. littl. acc . and so was it holden in sir john offley's case . car. in this court. barkley justice , if a disseisor doth recover in an ejectione firme , if he afterwards sell the land , it is a pretended title . jones justice , it was adjudged . el. in the common pleas , in pages case , in the case of a formedon , that if a man be out of possession for seven years , and afterwards he recover , that he may sell the lands presently . crook justice , there is a difference where the recovery is in a reall action , and where it is in an ejectione firme . it was master browneloes case in the star-chamber , resolved by all the judges of england , that a suit in chancery cannot make a title pretended nor maintenance . barkley justice put this case , if husband and wife bargaineth and selleth , whereas the wife hath nothing in the land , and afterwards a fine is levied of the same lands by the husband and wife , it shall have a relation to conclude the wife , and to make the wife to have a title ab initio . it was adjourned . pasch . . caroli , in the kings bench. barker and taylor's case . in an ejectione firme , the case upon the evidence was this , two coparceners , copy-holders in possession ; the one did surrender his reversion in the moity after his death . charles jones moved , that nothing did passe , because he had nothing in reversion . vide c. . part saffyns case , if a man surrendreth a reversion , the possession shall not passe . . it is not good after his death ; so was it adjudged in c. . part buckler and harvey's case . curia , the surrender is void , and the same is all one , as well in the case of copy-hold as of free-hold : and so was it adjudged . el. in plats case ; and so also was it adjudged in this court , . caroli in simpsons case . pasch . . caroli , in the kings bench. humfreys and studfield's case . in an action upon the case for words , the plaintiff did declare , that he was heir apparant to his father , and also to his younger brother , who had purchased lands , but had no issue , either male or female ; and that the defendant , with an intent to bring him in disgrace with his father , and also with his younger brother ; and thereby to make the father and younger brother to give away their lands from the plaintiff , did maliciously speak these words to the plaintiff , thou art a bastard , which words were spoken in the presence of the father and younger brother ; by reason of speaking which words , the father and younger brother did intend , and afterwards did give their lands from the plaintiff . and by the opinion of the whole court it was adjudged , that the words were actionable , and judgement entred accordingly . finis . i have perused this collection of reports , and think them fit to be printed . per me johannem godbolt , unum justiciar ' de banco . jun. . an alphabetical table . a abatement of writs by death for surplusage abeyance acc●ptance when a man is bound to accept , &c. accessary accusation before a justice acts which purge the wrong before act subsequent , where lawfull first act action another action hanging in what county see county , there where it bears date possessory before seisin , &c. special accord see arbitrament . account as bai●y ad merchandizandum against executors acquittal acquittance addition , de parochia administrator is found to be an executor surety in debt is administrator , &c. administrator counts of his own possession before he be possessed see retains for his own debt administration durante minori , &c. sues to execution , the executor comes of age . admiralty upon a stipulation or bill , there the body of the stipulators , who are , for the most part , masters of ships and merchants transeuntes , may be taken , no execution can be upon lands . it s jurisdiction admiralty court its jurisdiction , things partly done on land adv●wson passes in grants equity in statutes agreement , disagreement after an ar●est after assumpsit alien amendment amercement distress for it without presentment annuity ancient demesn pleaded appeal appendant appurtenant apportionment of rent apprentices bound by covenants though infants appropriation ● approvement of common arbitrement in part good arreers array , triers of it arrests lawful assault and battery assent of parties assets averred assignment of debts &c. assignee assize for erecting houses assurance — as counsel shall advise bound to assure assumpsit the arrest is void to the servant attachment of debts by custome attainder attaint atturnment atturney for livery atturney must not do acts unlawful what he may do receipt by him audita querela averment of uses in a devise that cestuy que vie is alive avowry upon whom authority must be persued naked to recover a debt without more ayde b bail debt against them bailment of goods bankrupts — one commissioner hath right to the land division where but one bond bargain and sale bar : pleas in bar insufficient two bars barretor bastard battery : a base fellow strikes a man of dignity benches bill : suits by bill bill for oppression or extortion by-lawes bishops , their acts borough english c capias case action of , &c. li●s against an inn-keeper see slander . vi & armis , &c. trover , &c. challenge to the sheriff and coronets chancery chaplains charge charters things in point of charter church-wardens cessavit certainty , incertainty once in a deed certiorari , certificate citation out of the diocess claim of the lessee clark of a parish colledges are corporations collusion , covin colour commission , commissioners ▪ high commissioners common surcharged digging in the common , &c making coney boroughs where woods are inclosed what the commoner may do upon the ground ● conclusion by the word praetextu , condition assignee &c. against law void lessee assignes rent broken , acceptance by rent after performance that neither a. b. or c. shall disturb &c. not to implead a. to assure lands as councel shall advise confession to save harmlesse , &c. confirmation consideration against law to forbear a debt see assumpsit conspiracy consultation contract intire continuance to some intents in courts contribution for one surety against another conviction ; before it , lands not to be begged nor seised , there copy-hold admittance extinguished statutes extend to it tailed fines leases forfeiture felling trees trespasse brought corporation dissolved : the donor shall have his land again sues costs covenant assignee executors ibid. & & to build a mill &c. there to surrender performed the indenture is void in part covenant cause of things must appear in the court , countermand county , where actions shall be brought , of trials courts-baron leet tower court of requests kings bench and chancery acts done in spiritual courts curia claudenda custom ▪ of descents that the wife may devise to the husband particular customes d day in court day materiall to be set down damages recowping in them jonyt , severed assessed not assessed : writ of enquiry not recoverable in account treble to be severed damage feasan . date of a patent declaration in an action upon & . p. & m. of distresses upon an assumpsit custome particularly insufficient mistakes deed : things passe by one deed by deed debt who liable the kings debt default defamation delivery of deeds of money to anothers use demand where to be by writ the word demurrer denizen made departure depositions deprivation detaining detinue declaration in it devastation by executors devastavit devise to a colledge &c. prevents a remitter , &c. to a mans heir to one daughter , heir of land held by knights service , &c. to sell to the son and heir ▪ dilapidation diminution alledged disability , the plaintiff cause of it discharge ought to shew what discent ● disclam discontinuance , one issue only found within a year discontinuance by tenant in taile disseisin of a particular estate acts of disseisor , disseisor sues &c. distresse justified driven out of the countrey sufficient upon the land divorce dove-coat , a writ of right lies of it erected dower a lease is for years forfeitable by the husband averment of seisin of the husband for damage e ejectione firmae ● extra tenet unnecessary . lyes plea election to sue . determined ibid. elegit ely : jurisdiction there emblements enclosure in forrests entry into one house to defeat an estate to fortifie it for forfeiture no trespasse error lyes not . brought . directed . things uncertaine . severall escape fresh suite escheat for miscreancy right of action essoine estates a lease for time determined the lesse drowned voidable estoppel estranger to a plaint erroneous , &c. estovers custome pleaded . see estrepment , estrey eviction evidence maintaines not the issue see execution assignment after judgement taking ▪ . severall executors see right of his own wrong , reteines order in payment pleads fully administred , exception in a grant time past to take it one releases ex●hange exigent excommunication . unjust exposition of lawes of statutes . and patents extent extinguishment lands given by statute to the king , annuity not extinguished f fals●fying a rec●very falsely imprisoned fee executed ●● one cannot depend of another ●● fee-simple felony , not before attainder , cause of arrest for it , feoffments , , , fieri facias , , , fine for vert , &c. . what courts may fine , &c. fine levied by tenor of it , parish not named , record of it , , , , , , first fruits , forceable entry forfeiture of lessor , , . of a right , , see treason . forgery , , , form commanded by statute , must be observed , , , formedon , , , forrests , chases , &c. frankalmoigne , franchises , , usurped , frankmarriage , , , franktenement , rule of it , in an upper chamber , forfeiture , , in case of treason , , , , , fraudulent conveyances and acts , , , , , , g. gardian in soccage , gardens , gavel-kind plea , grants , words apt , of a common person , , , , , , , , restriction , rule , to dig in his waste , generall words , one thing passes with another , things passe in grosse , . by one deed , . of the king , , where a mistake shall not abridge the fulnesse of words precedent , favoured , , , , , . see , , , , , , , of a possibility , h. habeas corpus directed , . see habendum , , , habendum successive , holidayes , heire-speciall , . force of the word , ib. , , , homage , husband and wife , acts of both , or either , , , , , , , wifes lease good , gives land to her husband , execution of the wives lease , see reservation . husband may forfeit the wives copy-hold , may correct his wife , i. ideot , jeofailes , , , imbracery , imprisonment , , , . see fine . improvement of common , incidents , ingrossers of corn , innkeepers , , incroachment , , inquisitions , , indictment , , , , , , , , , for erecting a cottage , for omitting the crosse in baptisme , , joynt contra pacem , when infant , , in his mothers belly , , , , . may grant , &c. brings error to reverse a fine , may release , , acknowledges a statute , &c. appears , &c. promises to pay for his meat , &c. . sues his guardian , discharges , information , , , inrollment , , , intent , intendment : , , common , interest not dividable , , , interesse termini , , , interruption , , joyning in action , , , , , , . husband and wife , joint-charge , . . joint-tenants , . join●ture forfeited by h. . . . issue l●gi●tim are born after ten moneths &c. . issue not proved by the special matter , . of issues see . . . . . . a thing in issue not in the verdict , . m●● joyned no issue , . several issues , . repugnant , . negative and affirmative , . tried , . jury . their finding things , . . . . . . . examined , sworn , . forein matter , ibid. strongly imply a thing , . three with sweet-meats in their pocke●s , . returned , . judges sworn to procure the kings profit , . judgment in a writ of error , , . in account , . husband and wife . false , . depending on another , . staid , . joint , . voidable , . entred concessum est , . justification , . . jurisdiction of courts , . . . . . . shewing how , , . k. king usurped upon , . . adhering to his enemies in france , . to direct the lawes , . his prerogatives , . . . . . . . . . . prerogative-law common-law , . lands once in the king , . . devest without office , . intrusion upon the king , . knights of s. johns of jerusalem , . lay , . their possessions ecclesiastick , . . . . . . templars , . l. laches in not entring the kings silver , . laps , . l●w , against the rule of the common-law to meddle with blood , . the law preserves things in its custody , . not alterable by grant , . leases , term extinguished , . . . . . on continge ●ie , rule , . . exception of timber-woods and underwoods , , . in certain beginning , . . . may be avoided , . . and revive , . within h. . . joining to lease , . lease for life by copyholder , . of an infant copyholder , . of a stock of sheep , . windfals ▪ , . by a parson , . by tenant in tail , . wants a beginning , . legacies for children , security to be given , . a verbal legacie after the will made , . . to be paid at full age , . suit for them , . liberty to cleanse a water-course , , licence to erect dove-cotes , . . . limitation , by law & statute . limitation of an estate , . . of time for actions according to . jac. . livery , . . . . . . right extinguished by it , . london , insolency of the common-councel : , . custome there : . lunatick . m ma●hem , maintenance , , . . hem mannor . market , . marsha●sey , judgment there , . marriage , is a release , . master and servants acts , of and to the servant mines , . . misnaming , . . . mir●cital , . . in the kings grant : , . , , . of a statute , . mistake of the day : , . of the date . monasteries : . , . what houses within the stat. h. . there ▪ monstrance of deeds , &c. . , , , . how things are done : . . of the place : , . . , . time : . of letters of administration : . of a bond must be , . in what ward , &c. . of more then needs , and that false : . that the place is within the jurisdiction , &c. that he ought to be priviledged , &c. . inducement to a matter need not be showne precisely . number and names to be shown : . before whom , &c. . monstrance of right : . . mortmain : . murder , manslaughter , se defendendo . . within the stat. of king james . . n name , . in a writ . . . nihil dicit nisi prius : . . nomine poenae : . . non compos : . . . non obstante in the kings grants : . nonsuit : . . non use : . no such record : see record . notice : . . , nusance : . . , . . then when an action upon the case , when an assise of nusance , part of an house in assise abated : o oath , putting to a mans oath , . obligation , the condition against law , . see . . see . to save harmless . not within eliz. . by the high commissioners , . bond to deliver possession , the assignee of reversion demands it , . taken by the sheriff , . , . to pay when out of his apprenticeship , &c. . occupant , occupancy , ▪ . . offices , officers , . , . insufficient , . coroners , , . . regarder , . steward of the leet , . office found , , . . rights vest without office , . void if in deceit of the king , omission of word in a certificate , . ordinarie , . . ordinances , . , . over-sea , outlawry , . . oyer of a record not to be denied , . p payment before the day , parceners , . , . parceney , . park-keeper , for what things accountable , forfeits , . parker forfeits not his office by attainder , . parks , . . chasing , . beasts of it there , . pardon , . parliament summoned at the kings pleasure only , . held at the kings pleasure , writ of error there must be the kings licence , by petition parsons heretofore knights parsonage , partition , , . . , , , . by word , partners in trade . . patents , . . exposition of them , . void , perjury , , . . perpetuity by devise , . , . perquisite , . petition of right , . place to be alleadged , . , , . . plaint entred , . pleas , . . . , . . . certainty , . in debt , , . amount to a general issue . general where they should be specially . taken strictly , . mistaken , not entred new plea , . plwalit●es , . . porti●n of tythes , . p●ss●ssion , unity , possibility , . . may pass by a grant , . premunire , , . praecipe , , . . . pre●ogative , see king , presentation , . as precurator , . p●●se●●ments●n ●n courts , &c. . 〈◊〉 , , , . . rules of it there , and . ● . in a court , . one against another . principal and accessory , pr●vily , . to sue , . . prviledg , . . . . priviledges not transferrable , . of discharge , . pleaded , . time to pray it , . probate of wills. exception of the h . . proceedings of law , the form must be kept , . procedendo , . proclamation , . proces , . erronious , . judicial . a summons for an attachment , . proof , . profession , trial of it , . prohibition , . . . . . . . . . . . . . . . . . promise , . , . . . . . . property , , , . . . changed by tender , . . in things 〈◊〉 naturae , . protection , . . proviso , . gives power to lease , . no proper place for it , . purchase by tenant for life , and the administrator of lessee for years , where the term was to begin after death of tenant for life , , . two named as joint-purchasers , . taking by purchase , . q. qvare impedit , . quae plura , . que estate , . quod ei deforceat , . . quo minus , , , quo warranto . , , . r. rape , the indictment must be preferred in convenient time , . ra●●shment of ward , . . . rebutter , . by that which is sued to be reversed . . recognisance . . notes only taken , . for good behaviour . . . recital of a statute , . of the particular estate &c. . rec●rd , . . no such record pleaded there . . . removed well or not . . brought from one court to another . . transcript in parliament , . see . recovery common , an invention of the judges found out in ed. his time , . all the rights barred . before inrolment of the bargain , . estoppes , . by an infant , recovery in actions , . ba●s ; . . erronious , . rectory , glebe &c. recusancie , . recusant convict his advowson , . relation , . . . . . to avoid mean acts , makes acts good before . . release of all actions . . . of all his right . ibid. where a covenant is not broken . ibid. . . . . with warranty . . relief . remainder . . . . . . acts by him in remainder . . good , yet incertain . . of a term . . . remitter . . . . . rent . . . . . to cease during minority , &c. paid to one who has but a right for a time . . to a. and his heirs for life of b. . the word 〈◊〉 . replevin . . . replication insufficient . reputation . . request . . . ● . in an action of the case upon promise . resceit rescuous . . plea in it . reservation . . . husband leases his wifes lease reserving rent ▪ . reservation to the wife , , . restitution upon a iudgment reversed , . . retraxit retorn , . . . . . . by coroners one denies , . general retorn of a record , . reviving . of estates and rights , . revocation , , . riot . rights . . . forfeited , . . . given away by conveyance , . . see livery . executor sels the land , hath right &c. . robbery on sunday , no hue and cry . . s sale . by executors . in a market . . of goods taken by pyrats . satisfaction acknowledged . scire fac . . . . . . seats in a church . sin to be shown . . seigni●ry , services , ● . . sheriffe collects fines &c. after a pardon , . simony . . . slander . . . . . malitiously spoken there , . . . . . . . . . . . . . . . . . . . . . . . of a physitian , lawyer &c. . for●sworn your self , . . calling one bistard , statute-merch &c. general statutes , particular interests : . a third person there . statutes : h . of jointures forfei●ed : . , . p , and m. of distresses : . the statute of wi●●es h. ex●ends not to copyholds : h. . of mistakes : . of h. . h. . of leases . eliz. of covenants , &c. for enjoying spiritual livings : m. concerning preachers : h . heir of cestuy que use : west . . of feoffments there eliz. of per jury : . h. . of estates tail forfeited for treason : , , . h. . statu●e of fermors e. h. of inclosure of woods statutes extend not to superiors unnamed general statutes bind insants some particular in some points construction where the king is concerned such statutes are general of penal statutes savings in statutes . steward of a mannor-court surety in debt to pay the condemnation , &c. suit for part . in temporal and spiritual courts sum●o●s and severance sunday supersed●●s , supplicavit for the peace surp●us●ge . . . surrender , , . . . . . surrender to the use of a. for ever , the lord admits him in fee surrender , &c. after his death suspension ● ▪ t tail-tenant his acts , leases . , . . . could not levie a fine at the common law estate-tail without the word heirs tenant grants rent , acknowledges a statute tenant in tail , the remainder in tail to another who grants his estate to the king , &c. . . tot stat. suum forfeited for treason , , shewing that the tenant died without issue the tenant cannot be barred to alien by common recovery tales de circumstantib . . tried tenant in common . . , . . two lords tenants in common of a waste tenant by curtesie . cannot grant his right living his wife in dower . see dower . in tail after possibility , &c. at will , leases . &c. , . . tender . , , tenure . things in action in grols trade , travers . , of a debt . to an office . of discents . rule . . of seisin in fee , or the gift in tail treason , a papist who after refussing to take the oath of allegiance , spake these words , it is lawfull for any man to kill the king , &c. , . in the point of allegiance none must serve the king with ifs and ands , ibid. forfeitures for treason , a mad man may commit treason presumed in law no man will commit treason trespass . . . . . , . barr by one who has special property for taking conies medling with the soil , pleas rule tro●er trust not conveyed . joynt , feoffment in trust broken tryal . . , . , . things done in a forrein port of things done beyond sea . . see admiralty tythes , lands discharged by the statute h. . l. . . , discharged by grant . . , , . , , . modus . the parson to have all , where prescription . , . after tythes set out , that the owner may carry away sheafs substraction leased by deed not modus after endowment . s . of lopping the king to pay no tythes , priviledges of discharge to be taken strictly , , v va●iance . . valore maritagii writ of error . venditioni expon●s venire facias . . . . , . , , . none verdict . vnperfect incertain special favoured villein presented to a benefice by the lord vis●e . . , , void acts and voidable . , vou vsage vse . acts of cestu que use . , . , makes attorney to make livery tenant in tail cannot stand seised to an use expressed superstitious vsurpation , . w wager of law , , not for part waife waining estates , wales , what process runs into wales the marches president and councel ward , warre● , warrant of attorney , apparence by it warrant to receive mony &c. warranting an horse sold a lease warranty , , , entring into it warrantia chartae . lies there . waste , , , , , , , , , , , . when done must be shewn way drowned wills construed witnesses , , , , woods , underwoods , inclosed in forrests according to statutes , , ● , , words for a grant , the word portio , . successive ovile , . omitted in a writ or writs not formal , divertit for coarctavit the true words not used admitted good demands in them insufficient two originals , , , trespas after the first purchased . of right &c. writ mistakes the time of one king for another of right of advowson , writ untrue , yet good writing scandalous words , under pretence of a petition delivered to the king . finis . plowden's quaeries, or, a moot-book of choice cases useful for the young students of the common law / englished, methodized, and enlarged by h.b. plowden, edmund, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing p estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) plowden's quaeries, or, a moot-book of choice cases useful for the young students of the common law / englished, methodized, and enlarged by h.b. plowden, edmund, - . h. b., esquire of lincolns-inne. 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ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- great britain. common law -- great britain. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - olivia bottum sampled and proofread - olivia bottum text and markup reviewed and edited - pfs batch review (qc) and xml conversion plovvdens quaeries : or , a moot-book of choice cases , useful for the young students of the common law : englished , methodized , and enlarged , by h. b. esquire of lincolns-inne . london , printed for ch. adams , j. starkey , and tho. basset , at their shops in fleet street . . to the reader . this piece which now entertains your eie , was originally ( if i may so term it ) a rhapsody of cases , wherein the author did not so much consult his method , as the choice of his matter : for as they proceeded from his hand they had no coherence amongst themselves , except such as were voucht to warrant the reasons of others : and most of them too more naturally referring to their own proper heads and divisions , under which it was necessary to reduce them , according to that form i had propounded to my self . so that it was not difficult to presage how great a trouble must be encountred in the attempt to contrive so great a confusion into any considerable order . but imagining the effects of my labour might reward my pains , i was easily prompted to undertake it for my own private accomodation , and not out of any vain glorious design to obtrude it upon the world ; for it is very well known i opposed a three years importunity to render it publick ; yet in fine considering that my own reputation stood responsible no further , than for giving it this shape into which you now see it form'd , i thought i might with the greater freedom comply with the desires of those who so long , and so earnestly , had invited it to the press . for the work it self , it hath gained a very fair reputation ; for i know no book that depends meerly upon the strength of its own reason as this doth , that ever was entertained with so great an esteem as this hath been by all persons that pretend to the knowledge of the law. but the most signal mark of its worth was set upon it by that person who in the fabrick of those everlasting monuments of his fame , his reports and institutes hath vouchsafed to honour this treatise so far as to make himself indebted to it for many of his materials , as will be obvious and visible to any mans observation that hath the least acquaintance with them . you will find upon a serious perusall , that few of the cases herein contained are any where else to be found , unlesse they were borrowed from hence . that the author was a person of a most refined theory : and that the work it self is a systeme of the sublimest speculations in the law ; wherein there is nothing vulgar , trite , or usuall , and yet every thing usefull . you will perceive that in the cases that are controverted , as some of them be , the arguments on both sides are derived from such apt and natural topicks , and the contest managed with so even and equall a strength of reason , that it is often left a measuring cast . besides the generall benefit , this piece will oblige the students of the law with a more particular advantage ; for out of it they may furnish themselves , not onely with quaeres and moot points for their exercises in their respective societies , the want whoreof is so generally lamented ; but they will also find many of these problemes debated upon either side . so that they are not onely accommodated with subjects for their quarrels ; but are also arm'd with weapons both offensive and defensive . it would too much resemble flattery for any man to assert the infallibility of his treatise in every particular . it is a prerogative to which few books in the law , i had almost said none , ever arrived ; for littleton who no doubt , as he writ in the quality of a father , was most accurate in his composition , lest the judgement of his son might derive a blot from his own pen. and notwithstanding the work is considered as the most accomplished piece of that nature that was ever yet extant , and his honourable interpreter makes his name and the law equivocall ; yet he himself shuts up that discourse with so modest an epiphonema , that it plainly implies his own esteem of it was very different from that which the world hath since bestowed upon it : and the same learned commentator , although he was sufficiently positive and peremptory in vindicating the authority of his author : yet when he comes to reflect upon his own labours , he is found to make use of the same epilogue for those truths which depend meerly upon fancie and opinion , without the assistance of any known principle to support them , as many cases in the law do ; have a certain fatal period beyond which they seldom survive : and from hence it is , that what was reason an age since ceaseth to be so now : and some decisions have a shorter date ; for the judgements that are given in one court , and that too upon the most solemn debates , are often times reverst in another before the breath is cold that pronounced them : for when the determination of a case must be fetcht out of its self , there is nothing so uncertain and mutable as the conclusions that are made thereupon . and thus it fares with many of these cases , being govern'd by some particular circumstance which leads them out of the common road , and distinguisheth them from others . so that when i consider the niceties that are contained in it , and how critically they are decided , i cannot but admire so many of them are reputed for law. i confesse you will meet with some passages that are not agreeable to the received opinions of this age , but most that are , which puts me in mind of a character that was given it by an ingenuous and intelligent person in the law , that there are in it multa falsa , plura vera , plurima ingeniosa . to conclude , although my particular interest in this piece be so inconsiderable , that i cannot rationally affect any reputation by it : yet if there be any thing that relates to my own endeavours that may accidentally purchase a generous reception from any ingenuous spirit , it shall be an ample compensation for the labour and pains that have been bestowed upon it . farewell . errata . pag. . l. . after life add the remainder for life . p. . i. . r. parol . l. . add for . p. . l. . dele not . p. . l. . r. pur auter vye . l. . r. pur . p. . l. . for confirmation r. freehold , p. . l. . r. did . p. . l. . r. his p. . l. . r. estovers . . l. . r. acre . p. . l. . r. by . p. . l. . r. some think . p. . . dele if. l. . for heard r. hard . p. . l. . for deluge r. delayd . p. . l. . for suing r. saving . p. . l. . r. vested . p. . for disablement r. disability . an alphabeticall table of all the principal heads contained in this book . a   pag. absence . acceptance ib. administrator . advantage . agreement . aid . alien . ibid. annuity . appendant . apporcionment . arrerages . assent . ibid. assetts . assignee . attainder . atturnment . avoid . avowry . authority . b barr . bargain and sale. ibid. baron & fem. bastard . bonafelonnm , &c. borough english . ibid. c charge . claim . capacity . cessavit . ibid. cessante causa , &c. common , vide apporcionment .   condition confirmation continuall claim . covenant , videvse .   d damages daughter ib. deed debt . devastavit , vide executor .   devise disablement . disagreement discharge dissent discontinuance disceisor divorce dower . e election emblements . entry escheat estate estoppple estovers exchange execution executors . extinguishment f feoffment fem covert fem sole fine ibid. forfeiture frankmarriage . g grant gavel kind . h habendum harriot ibid. heir i incertainty infant joinder in action jointenants judgement l leease limitation livexyy & seisin m market overt n nusance o obligation occupant outlawry p parceners & partition particeps criminis payment place ibid. pleas ibid. possession possessio fratris . q quaere impedit r recognizance , vide statute .   record relation ibid. release remainder remitter rent reservation reversion reviver s seisin severance of the jointure ibid. statutes ibid. surrender t tail tenants in common tenant by the curtesie tenures testament v villain voucher w wast . warranty . absence . if one in the absence of i. s. disseiseth another to his use , or in his absence surrenders to his steward , or gives goods to him in his absence ; his subsequent agreement will make all good . but a disagreement cannot be in his absence . acceptance . tenant in tail grants a rent-charge in fee , and then makes a lease for forty years rendring a rent , and dies . the issue , after his death , accepts the rent ; the grantee shall have the rent during the lease , and also during the life of the issue ; though the lessee surrenders q. for the reversion is discharged . a. makes a lease for life , rendring a rent , with a clause of re-entry ; after he has title of entry he accepts the rent : now he cannot enter for the condition broken ; for , when he accepted the rent , he did not receive it as a debt ; ( for an action of debt would not lie in that case ) but as a rent . and it cannot be a rent unless the lease continues . so if a woman , issue in tail , or an infant accept a rent reserved by the husbund , &c. but in the principal case , if the lease had been for years , there the rent is said to be a debt during the lease as well as after . a fem sole , being lessee for life , takes husband , then they make a lease to i. for his life , rendring a rent ; the husband dies , the wife accepts the rent in pais ; the lessor may enter , and she is barr'd of her cui in vita ; for , by her acceptance she hath agreed to the forfeiture . if the issue in tail accepts the rent , with a proviso , that it shall not be prejudicial to his entry to avoid the lease , yet he shall never defeat the lease . the husband and wife make a lease for life , reserving a rent ; the husband dies , the wife accepts the rent from the lessee : she shall not avoid the remainder ; for they are both but one estate , and an agreement cannot be to parcel of an estate . so if a lease be made to two by husband and wife for their lives , rendering a rent during the life of one of them : if the wife , after the death of her husband accepts the rent , she shall not oust the survivor . the husband and wife , being tenants in tail , the husband makes a lease for years , reserving a rent , and dies , the wife dies also . quaere , if the acceptance of the rent by the issue will make the lease good ? a man makes a feofment upon condition ; the feoffee makes a lease for life , and grants the reversion to the feoffor . if he hath cause to have a writ of right , or other real action , he cannot have it against the lessee for life ; for the reversion is in him by his own acceptance . a gift in tail is made to the donee , and the heirs males of his body : and for want of such issue , the remainder to him and the heirs females of his body ; the donee makes a lease for years , reserving a rent , and dies without issue male . if the heir female accepts the rent , she shall be bound ; for the lease issued out of both the estates . but if the heir male had made the lease , the heir female cannot make it good by acceptance . if tenant in tail dies , his heir within age , and the guardian avoids it during the minority ; yet the heir at his full age , by his acceptance , may affirm it . so if the wife of tenant in tail avoids a lease by a recovery in dower ; yet , after her death , if the issue accepts the rent , he hath made good the lease . administrator . after the death of the intestate , a : gets the goods , and gives them to b : and after letters of administration are granted to a : he shall not take the goods out of the possession of b : for the law saies , by the first taking the goods , he had them to the use of the intestate ; for he shall be charged as executor de son tort . and he is to have the goods in the same capacity . but it is otherwise if a : takes the goods of b : tortiously and gives them to c : and then b : makes a : his executor . but in the principal case , if a : releaseth to a debtor of the intestate after administration committed to him , he may have an action ; for of a chose in action a man cannot gain a possession . if a lease is made to begin at easter , and before easter a : grants it over , and before easter the lessee dies , and a : takes administration to the lessee , and grants it over to another , the second grantee shall enjoy it . if a rent charge is granted for years , and a : compels the tenant to pay it to him , and then he grants it over , and takes letters of administration to the first grantee , he shall avoid his own grant : for the possession which he had usurped shall not be esteemed the possession of the same term ; but it shall be said a voluntary payment of the tenant : for none can be said to have the rent but he that had right to it . advantage . three joint-tenants , one gives his part to his daughter in frank-marriage to one of his companions , and makes livery . this is a good frank-marriage ; for , though one joynt-tenant cannot enfeoffe another , yet his companion , and a stranger he may ; because 't is for the advantage of a third person ; and the livery being made to the third person shall vest the estate in both , h. . . h. . . but others think the contrary : for , the husband cannot take it immediately from his companion : therefore , for him it is void , and good for the wife . as if a feofment be made to a stranger , and the wife of the feoffor . the husband is bound in a statute , and after he and his wife levy a fine of the wife's land to a : the husband dies . the statute shall not be extended during the wife's life ; for nothing passed from the husband , but the estate which he had in right of his wife : and a : shall have the same advantage which the heir of the wife should have had . tenant in tail enfeoffs one daughter within age , and dies : she is remitted ; but the other daughter shall not take advantage of it . agreement . if i disseise one to the use of my self and a : who after agrees to the disseisin , we are joint-tenants , ass . . if one sister in tail enters upon the discontinuee of her father , claiming to her and her sister ; and the discontinuee ousts her , and she recovers in an assise , the other sister shall have the moyty by her agreement . but if i disseise one to the use of a. after twenty pounds received by me of the profits ; or to the use of my self for life , and after to his use in fee ; there he shall have nothing by his agreement : for i cannot apportion the wrong . if i disseise my tenant for life to the use of a : he shall have but a free-hold by his agreement . if the issue in tail within age , by covin commands a : to disseise the discontinuee of his father . a : disseises him to the use of b : for life ; and after to the use of his own right heirs . b : agrees , a : dies , b : dies , the heir of a : enters , and enfeoffs the issue , he is remitted because of his minority . an agreement cannot be to parcel of an estate . aid . if coparceners make partition , and one has the seignority , and a tenancy escheats , and she is impleaded of that ; she shall not have aid of the other coparcener ; for aid cannot be granted but of land descended . if one acre is given to the eldest daughter in frank-marriage , and another in fee descends to the youngest ; if she shall have aid is the question ? alien . if a reversion be granted to an alien , and after he is made a denizen , and then the tenant atturns , he shall not take to his own use . a lease for years is made to an alien upon condition to have fee ; he is indenized , and hath license to purchase , and then performs the condition . the king shall not have the fee , for it hath not a relation as to the devesting of the fee , further than the performance ; although that for charges and incumbrances it hath a larger relation . if an alien disseisor be made a denizen , the king shall not have the land , if the disseisee doth after release unto him ; but if an alien had been the feoffee of a disseisor , it had altered the case , for it is a new purchase in one case , and but an extinguishment of a right in the other : and it seems that the issue of such an alien born within the realm shall be in ward for land descended to him on the part of the mother , during the life of the alien , if he be not heir apparent . and a man born in england cannot make himself heir in special tail to a baron & fem , whereof one is an alien , neither shall he have an appeal for the death of such a father or mother alien . if land be devised to an alien , and he is made a denizen , and after the devisor dies , there he shall take by the will ; for all takes effect by the death of the divisor . but in the case above , if when the office is found the lease should be adjudged in the king from the beginning , then it takes away the condition , and then he could not acquire a fee by his performance . if a man seised in fee marries an alien , and makes a feofment , and she is made a denizen , and the husband dies , she shall not recover her dower . annuity . if an annuity be granted for the life of i : and the grantee releaseth all actions of annuity to the grantor ; it seems he shall not have an action of debt for the arrerages after the release , and after the death of i. for when they were due he had no remedy . if a rent charge is granted out of land in fee , the heir of the grantee shall have his election to bring his . writ of annuity , and so shall the executor of the grantee , if the grant were for years . and if the wife brings dower , the heir shall not say , that he will take it as an annuity ; for it must be determined by the bringing of his action : and if she be once endowed , the heir shall not have an annuity of the other two parts ; for his writ ought to be grounded upon the deed , and that for all , or for none : for there can be no apporcionment of an annuity , or personal thing . appendant . if an advowson be appendant to a mannor , and the advowson is granted to one for life , and then the grantee is enfeoffed of the mannor cum pertinentiis ; yet the free-hold of the advowson is not appendant . but if the grantee had regranted it to the grantor , it had been appendant . but if a. makes a lease of his mannor for life , saving the advowson , and after grants the reversion of the mannor una cum advocatione , the advowson shall never be appendant to the mannor again . husband and wife make a feoffment of the mannor of the wife , to which an advowson is appendant ; the feoffee makes a feofment of one acre with the advowson ; the husband dies , the wife recontinues the mannor ; she shall present without any recontinuance of the acre : for it was not appendant to the acre ; for if a man makes a feofment of an acre , parcel of a mannor , cum pentinentiis , nothing of the advowson , which is appendant to the mannor , passes . if one hath a mannor , and makes a lease for life of all the mannor , except one acre ; now the fee of the acre is divided from the mannor during the lease for life , but after the determination of the lease it shall be appendant again . apporcionment . two joint-tenants by twelve-pence , the one grants what belongs to him upon condition ; the lord grants the services of one , and atturnment is had : the condition is broken , the grantor enters ; he shall hold by twelve-pence also , for by the grant no apporcionment is made , and then by the grant twelve-pence passed , and twelve-pence remain . if tenant for years enfeoffs the lord of one acre , the seignory shall be apporcioned . a rent is granted in fee out of land in borough-english , and at common law ; the grantee dies , leaving two sons , the eldest shall have all , for the rent being entire cannot be apporcioned , and the eldest , being heir , shall have all . if a rent charge be granted in fee , and the grantee dies , and his wife recovers her dower of the third part of the rent , the heir cannot have an annuity of the two parts ; for it must be for all , or none , for it cannot be apporcioned . if the obligor for twenty pound makes the obligee his executor , and leaves but ten pound , he may retain that ten pound , and sue the heir for the rest . so that a duty may be apporcioned by act in law. if a lease be made of two acres for years rendring a rent , and the reversion of one of them is granted over , the rent shall be apporcioned : for as the contract is made in respect of the reversion , so it shall be severed in respect of the reversion . if a lease be made of two acres , rendring a rent , with a clause of re-entry into one for not payment of the rent , it seems reason that the rent shall be apporcioned : and so if the condition had been that he should have fee in one acre . and if a man makes a lease of a flock of sheep , and land , rendring a rent , if either of them be evicted , the rent shall be apporcioned . but if i have a term of twenty years , and i grant it over with a stock of cattle , rendring a rent by indenture , and if the rent be arrear that i shall distrein ; there , if the stock be recovered , the rent shall be apporcioned ; for before my recovery my remedy was by distress , and not by action of debt , and so no apporcionment for a chattle devested . if one enters lawfully upon tenant for life , by title paramount , into one acre , for a condition broken , though he has the same title to all the land ; or enters into one acre by a title upon an alienation in mortmain , or consent to a ravisher , &c. or if the lessor himself enters into one acre , by reason of a condition broken , or because he was within age at the time of the making the lease , and peradventure part is good by custome which enables an infant to make a lease ; or if the lessor takes a surrender of parcel , or recovers parcel in wast . h. . . or if one joint-tenant enters , for a condition broken , into his moity : in all these cases the rent shall be apporcioned . but if the land at the time of the lease was discharged of a rent , which after revived , so that the value of the land is impaired to the lessee , there the rent shall not be apporcioned ; for the land out of which the rent issues , remains intire to the lessee . but if one hath title to enter upon his tenant for life into twenty acres in two several counties , and he enters but into one acre only , quaere if the rent shall be apporcioned ? there is no apporcionment upon the grant of a seignory , but only by the feofment of the tenancy . if i disseise one to the use of a. after twenty pounds advanced by me out of the profits , or to the use of my selfe for life , and after to his use in fee ; he shall have nothing by his agreement , for the wrong cannot be apporcioned . if a man has common sans number granted to him in tail out of two acres , and he purchaseth one acre and dies , which descends to his issue in tail , there can be no apporcionment ; for either it is gone in all , or revived in the residue for all ; for common sans number is a thing intire which cannot be severed . but if it were common certain it were otherwise . but being the common was intailed , the act of the tenant in tail shall not prejudice the issue , where a rent is suspended in part there can be no apporcionment during the suspention , but afterwards there may . if the tenant holds of the lord by fealty , and twenty shillings of the mannor of dale , and the lord makes a lease of the mannor , reserving forty shillings with atturnment , and after releaseth to his tenant all his right . if the rent of forty shillings shall be apportioned ? first it seems by the release the tenant is discharged of twenty shillings , as well against the lessee as against the lessor , because now the tenant holds it of the lord paramount , and so not of the lessee . also the rent of forty shillings was as well payable for the services as for the demesns , although a distress cannot be taken in the demesns . but yet being the twenty shillings is lost , not by a title paramount , but by the lessor , if now it shall be apportioned or not ? h. . . there be three daughters , two by one venter , and the third by another . the youngest being seised of three acres of equal value , grants a rent of three shillings to the father in fee , and makes a feofment to the second daughter of one acre , who dies without issue , so that it descends to the eldest , the father dies : by this descent the rent shal be apporcioned . if a man hath a rent of twenty shillings out of twenty acres of equal value , and one acre descends to his wife , the whole rent is suspended ; for it cannot be apporcioned when he is seised of part of the land in auter droit . but if she dies , and he is tenant by the curtesie , it shall be apporcioned ; for the land continues in him by act in law , which is equal to a descent : and if the rent be in tail , and part of the land descend in fee ; or if the rent be in fee , and part of the land descend in tail , there shall be no apporcionment . arrerages . if a seignory be granted for years , upon condition to have fee , and after the fee is vested by the performance of the condition ; the arrerages due before are extinguished , for the term is extinct . assent . if the patron and ordinary give leave to the parson to grant a rent in fee , it will bind the successor , h. . . for an assent may be before the act is done . if the patron assent to the charge of the parson upon condition , it is good : but if he had the patronage but for life , &c. after his estate ended , the assent will not bind the second patron . if a parson be patron of a church , and the parson , with the assent of the ordinary , grants a rent charge , or makes a lease for yeares ; the assent will not make it to endure , no more than the assent of a bishop who is patron , without the assent of his chapter . nor the assent of tenant in tail , or for life , who is patron cannot make it endure for ever . if the bishop grants in fee to the king by deed , confirm'd by the dean and chapter , and the deed of the bishop is inrolled , and the other not , it seemes it shall bind the successor ; for the assent is to the deed of the bishop , not as a confirmation . as the abbot may make livery where it is the deed of him and his covent , so in this case the bishop may deliver the deed of him , and of the dean and chapter . assets . land is given to two women quam diu simul vixerint , the remainder to the heirs of her that first dies : one hath issue , and dies ; it seems this remainder shall not be assets in the heir in a formedon , or debt ; for the remainder was never in the mother ; for it commenced after her death . but if a rent charge be granted to i. to commence after his death , 't is otherwise , for the heir takes it by descent . if executors have a villains in right of their testator , and enter into land purchased by him , it shall be assetts although they have a fee , as land descended to the heir shall be assetts to a chattle , viz. to a debt of a stranger . the grantor of a rent charge in taile einfeoffes the grantee of the land , who makes a gift in tail of the land , rendring so much of the services as he pay● over to the lord paramount : it seems that these services shall be assetts in the heir ; for they are particularly reserved for the land. assignee . if a feoffment be made with warranty to the feoffee , his heirs and assigns , if he makes a feoffment over , and the second feoffee re-enfeoffes the first feoffee , he shall vouch ; for he may be assignee of his father , being he does not claim as heir . and the lord by escheat , or mortmain , or of a villaine , or who enters for a consent to a ravisher , shall not be said assignees , and yet they shall rebutt . if tenant in tail be with warranty to him , his heirs and assignes , his feoffee in fee shall not be said assignee ; for he hath no part of the estate tail . if land be given to one and his assignes for ever , and it is ganted to him and his assignes , that they shall have twenty load of wood yearly for ever , tenant for life grants over his estate , and dies ; the assignee shall not have the wood , because his estate is now determined . attainder . a. dyes , leaving two daughters , the one is attainted of fellony , a lease is made the remainder to the right heirs of a. the other shall not take the daughter ( that was attainted ) being living , for one is not heir alone ; but if the father dies seised of land , a moity shall escheat . if the mesne grants the mesnalty upon condition , that if the grantee pays a certain sum of money to the grantor , that he shall have fee ; and before the day the grantor is attainted of felony and executed ; yet the grantee shall have fee , for the condition is become impossible to be performed by the act of the grantor . but if a jointenant makes a lease for five yeares , upon condition , that if the lessee does such an act , he shall have it for twenty years ; and before the day the lessor dies : now the condition is void by the surviver . if a man grants a rent charge to begin at a day to come , and before the day the grantor is attainted of felony , yet the charge is good . if a remainder be limited to the right heirs of a. who hath a daughter , and dies , who enters , and after a son is born , and attainted ; yet the remainder shall not be devested out of the daughter . the son endowes his wife ex assensu patris , the son is attainted of felony , it seems that the wife should not retain her dower , for 't is the dower of the son , for she claimes it from the son , and if she brings a writ of dower of it , ne unques accouple in loyall matrimony is a good plea , and if there had been a disseisin of it , a collateral warranty shall be no bar to the wife , for she pretends no title to it but by the death of her husband , and then the warranty descends before her title , for if it descends after her title it shall be a good bar . and if she , after her dower so assigned , be attainted of felony , and after hath her charter of pardon for her life , and after the husband dies , she shall retain her dower ; for her interest in it commenced after her pardon . and yet by her attainder she forfeited all her inheritance , free hold and chattles real . if an attainted person be enfeoffed to the use of another , the possession cannot vest in the other , but must escheat ; but he which is attainted may be an atturny . grandfather , father , and son , the father is attainted of treason and dies , and after the grandfather dies seised of land , the lord of whom the land is holden shall have it by escheat , and not the king : for the father had it not at the time of attainder ; and being that the grandfather dyed without heir the land shall escheat . so it is if the father be attainted of treason , and the grandfather dies leaving the father . the issue in tail is attainted of felony , and is pardoned , and his father , dies , and a stranger having cause of action ; against whom he shall bring his action , is the question ? some say that the donor hath the free-hold in law ; as if tenant in tail dies leaving his wife enseint . others say there is none against whom the action may be brought ; as if tenant for life grants over his estate to b. who dies , now before entry there is none against whom the action may be brought . tenant in tail makes a feoffment within age , and is attainted of felony , his issue shall not enter , for he is disabled in blood to take advantage of the infancy , because the infant had no heir . a. covenants upon a marriage to stand seised to the vse of another , and before the marriage the covenantee is attainted of felony , yet upon the marriage the vse will rise ; as a lease for life with a condition of accruer , if the lessor be attainted , yet the estate shall enlarge . tenant is tail is disseised , and releaseth to the disseisor with warranty , and then is attainted of felony , and hath a pardon and dies : this is a discontinuance ; for if he had purchased land after his pardon , it should descend to his heir ; then the warranty being in esse at the time of his death , there is no impediment but that it should descend . but if tenant in tail , who hath a warranty annexed to his estate , be attainted of felony and executed , his issue shall not inherit the voucher by reason of the warranty , although he hath the land ; for the warranty is our of the statute de donis , &c. which speaks of lands and tenements . but some think that by the equity of the statute it is preserved as well as charters , h. . . p. markham & h. . . cott. p. charters . tenant in tail makes a lease not warranted by the statute , and dies : the issue accepts the rent , and is attainted of treason ; if the king shall avoid it , quaere ? if the grandfather be tenant in tail , and the father is attainted of treason , and executed , yet the son shall inherit as heir to the grandfather . if a. commits felony , and the lord grants his seignory , and after a. makes a feoffment upon condition , and is attainted , and hath a charter of pardon , and after re-enters for breach of the condition , and dies . if an occupant shall have the land , the issue , or the lord , is the question ? atturnment . tenant in tail holds by rent , the donor grants the services , the donee atturns ; nothing passes , for the rent cannot passe , but as a rent service ; and the atturnment shall not prejudice him , for the law will not have land to be holden of two several persons . tenant for life grants a rent in fee , and then he and the reversioner join in a feoffment ; by the delivery of the deed the tenant did atturn if the lord grants his seignory by fine , and before atturnment the tenant makes a feoffment of the tenancy ; if the feoffee atturnes it is well enough , and yet he is not compellable : so if tenant in tail atturns 't is good , and yet he was not compellable . if a lease be made for years , and the lessor makes a lease to another for life to commence after the term : atturnment will not make the second lease good ; for the freehold cannot passe out of any one who hath a greater estate , reserving to himself a mesne estate . if a man makes a lease of a mannor which is ten pound in demesnes , and ten pounds in service , rendring twenty pound rent , if the tenants do not atturn he shall pay but ten pounds in rent , being he hath no remedy to compell them to atturn . tenant for life of three acres , and the reversion of them is granted , and tenant for life surrenders one acre to the grantee that countervails an atturnment for that acre only ; for it is but an atturnment in law , but an atturnment for one acre by parcell is good for all ; so if he had atturned to one grantee it had been good to both . if one brings a quid juris clamat , and pending his writ he enters into one acre , he hath not abated his writ for the remnant . if a fem sole makes a lease for life , and then grants the reversion to two , one dies , and she marries the other . tenant for life pays a penny to the bayliffe , of the grantee in the name of atturnment , and dies , the husband enters and makes a feoffment and dies , she brings her cui in vita . if a seignory be assigned in dower ex assensu patris , there needs no atturnment . a reversion is granted by deed to a man and a fem sole , they marry , the tenant atturns , the particular estate life determines : the husband and wife shall take it by moities ; for the atturnment is grounded upon the deed , and reduces the inheritance according to the course of deed. if a reversion be granted to on infant , and atturnment is had at his full age , yet when he is in possession he may disagree to the estate , being the grant was during his infancy , which is the principal . a reversion is granted to one for life , and before atturnment it is granted to him in fee ; the tenant atturns , the grantee may choose which estate he will take . but if a reversion be granted to one , and after to another , and the tenant comes to both , and says i atturn unto you , neither of them shall take for the incertainty . if a reversion be granted to one and his heirs , and after it is granted to him and his successors , and the tenant atturnes , quaere in what capacity he shall take ? if the reversion of black acre or white acre be granted , quaere if atturnment will make it good ? some think it is void for the incertainty . a. makes a lease for life and grants a rent out of the reversion , if the grantee grants it over , the grantor ought to atturn , and not the tenant for life ; for it hath no relation to him : for a release made to him by the grantee will not extinguish the rent . the reversion of tenant for life with the rent is granted ; tenant for life grants his estate to another , to hold of the grantee : this is an atturnment ; for when he granted it to hold it of him , the tenant for life took notice of the grant. if an atturnment be upon condition , which is broken , yet the reversion is not devested , for he doth not claim the reversion from him that atturned , and an atturnment cannot be upon condition . if the reversion be granted to tenant for life and another , or a signory be granted to the tenant and another , this acceptance shall be a sufficient atturnment . but if there be two tenants for years , and the reversion is granted to one of them , quaere if he takes but a moity without atturnment of his companion , for the jointure is severed by the grant. if a fem tenant for life takes husband , who atturns to the grantee of the reversion , and after is devorced , yet the atturnment shall bind the wife , and if a feoffee upon condition atturns to the grant of a seignory , and the feoffor enters for the condition broken , yet the atturnment stands good . if a mulier atturn to the grant of a signory , though the bastard dies seised , so that the mulier can never be heir , yet the atturnment remaines good . if the reversion of tenant in tail , or for life , the remainder for life is granted , and the issue in tail , or he in remainder atturn , ( having nothing but the possession in law ) it is void . but he that hath but a possession in law may atturn to the grant of a seignory , for none can atturne but he that was tenant at the time of the grant. the lord grants the seignory , the tenant is disseised , and after atturns , that is good ; but if the lord grants the rent saving the seignory , and she is after disseised and atturns , that is void ; for it is now a rent seck , in which there is no attendency , but a charge of the land. if a man grants a rent reserved upon a lease for life , saving the reversion , that is a good rent seck , if the tenant atturns . grandfather , father and son jointenants , the grandfather grants a rent charge in fee to the father , upon condition , who grants it to his son and his wife ; the grandfather releases to the father and son , the son dies , the condition is broke , the grandfather claims the rent ; the wife shal hold it discharg'd of the condition , if the possession of her husband shall be an atturnment in law ; but it seems it is not , for his atturnment alone without the atturnment of the father ( who was a jointenant ) is not sufficient , for both ought to atturn . but if the grandfather should have the rent by the condition , then he shall be in of his own grant , and be both grantor , and grantee . but if the father had died in the life of the son , then that had been a good atturnment in law. avoid . tenant in tail makes a lease for forty years , and dies ; the issue in tail marries and dies , if she shall avoid the lease by her recovery in dower quaere ? if tenant in tail makes a lease for years to commence at easter , rendring a rent , and dies ; the issue in tail enters and makes a feoffment before easter , the feoffee shall not avoid the lease , for the lease was not avoided by the entry of the issue . so if baron & fem make a lease to begin , &c. and before the time the baron dies , and the fem makes a feoffment , the feoffee shall not avoid it . so if an infant makes a lease ut supra , and before the time ( he being within age , or at full age ) makes a feoffment , the feoffee shall never avoid the lease , &c. but many are of a contrary opinion ; for they say that an infant , or issue in tail , by their own , or the acts of their ancestors , shall never be prejudiced by any thing that is executory ; for if he shall not avoid it by his possession before the commencement of the term , he hath no means to avoid it , &c. before , &c. but it is cleer enough , that if tenant in tail dies after he hath discontinued , and the discontinue makes a lease for yeares to begin ut supra , and dies ; the heir in tail , being his heir who enters , and he enters and makes a feoffment , there the lease is avoided , because the issue is remitted , and hath another estate than the discontinuee had , and not any privity of that estate which is avoided . if an infant delivers a writing , as an esorowle , to be delivered as his deed when he arrives at his full age , and receives the money of the party to whose use the deed was to be delivered , yet he shall avoid the deed. if husband and wife make a lease , or grant a rent charge in fee out of the wives land , and then they joyn in a fine to a. he shall not avoid the lease or charge , because they are executed , but otherwise of things executory as a statute , &c. before execution . avowry . land is given to one habendum , a moity to him and his heirs , and the other moity to him and the heirs of his body , the remainder to his right heirs ; the land is holden by two pence , the donee dies without issue , and his brother enters , severall avowries must be made upon him , one for one penny , and another for the other . but if land be given the one moity in tail , the other in fee , there shall be but one avowry , for that inures as a joint gift , but in the first case it did inure severally at the beginning . if there be three jointenants , and one releases to one of his companions , and he to whom the release was made hath the part of the other by survivor , yet for a third part one avowry shall be made upon him ; in the principal case the fee simple was never severed , if it had , the donee should hold each moity by two pence a peice , and the avowry shall be made upon the collateral heir for two pence in one moity . a. makes a gift in tail of one acre which he holds in socage , and of another which he holds in chivalry , saying nothing , the donor shall make severall avowries , although he hath but one reversion ; for the law makes the avowry in respect of the tenure over , and the severall acres must severally escheat . if a disseisor makes a lease for life and dies , it seems the lord is compellable to avow upon the heir of the disseisor . but if he had made a gift in tail , and the donee dies and his issue enters , there he shall not avow upon the donor . if one parcener makes a lease for life , yet the lord shall avow upon them both , but if one jointenant makes a lease for life , the lord must make severall avowries upon them , for the jointure is severed . if there be two fem parceners mesnes , and one marries the tenant , yet the avowry of the lord is not severed . but if there had been two jointenants , it had been otherwise , for by the marriage the moity of the mesnalty is suspended , and cannot be in jointure with the other moity which is not in esse . and if one holds a mannor of another , and makes a feoffment of all , except one acre , now the fee of the acre is disappendant from the mannor , and the lord ought to make two severall avowries . authority . if i devisethat my executors shall sel my land , and one sells one moity , and another the other ; this is not warranted by the authority , for it was to be jointly executed ; as a letter of atturny to two to make livery , it ought to be performed jointly . but if the land had been devised to them , then such a sale had been good , for they had an interest , and the intent was performed . if one makes two atturnies conjunctim , or the king makes two commissioners of oyer & terminer , if one dies , the authority of the other is determined , ass . p. . two jointenants make a feoffment with a letter of atturny to deliver seisin , and the one delivers seisin in person , this is a countermand of the whole livery , for the authority was not severall for either of them , but joint for both , and therefore being countermanded for one it shall be void against the other . barr. if the plaintiffe be barr'd in an entry sur disseisin , yet he shall have a cessavit , if he had cause to have it at that time , for it is another title . if the heir brings a formedon in descender and is nonsuite , quaere if he shall enter , because he had title of entry for a condition broke . if a woman hath cause of dower of one and the same acre , as wife to a. and b. if she be barred of it , as wife to a. yet she shall have it as wife to b. if baron & fem make a feoffment upon condition , if the wife be barr'd in her cui in vita , yet she may enter for the condition broken . e. . , . p. . bargaine & saile . a bargains and sells land to b. and after they both grant a rent charge to c. and then the deed is inrolled , the rent is gone ; for it is the grant of a. and the inrolment hath relation to the delivery , which avoids the grant , though it was the confirmation of b. for he had nothing at that time . the issue in tail within age takes from the discontinuee a bargaine and sale. he shall not be remitted ; for he is in , by reason of the possession conveyed to the vse , and so he must have it in the same degree as he had the vse . and so if he were within age at the time of the bargain & sale , and the other dies , and after the deed is inrolled , he shall not be remitted . if the bishop makes a grant to the k. in fee , confirm'd by the dean and chapter , and the deed of the bishop is inrolled , and the other not , it shall bind the successor ; for it is but as an assent , and not a confirmation . baron & fem. if a fem lessee for life marries , and she and her husband make a lease for life , rendring a rent , and the fem avowes , for the rent after the death of her husband , the lessor may enter ; for by her avowry she hath agreed by matter of record , and so it had been if she had entred for a condition made by her and her husband . if a. infeoffes his wife and a stranger , it is void as to the wife , and good to the stranger , though the livery were made to the stranger in the name of both . three jointenants , and one gives his part with his daughter to his companion in franckmarriage , and by the same deed releases to them in frankmarriage , and makes livery , this is a good gift in franckmarriage by some , for notwithstanding one jointenant cannot enfeoffe his companion , yet he may enfeoffe his companion and another , and the livery made to the other shall vest the land in both , and that is for the advantage of a third person . as in gascoignes case , h. . . it was not a surrender for the advantage of the third ; neither in h. . . for the advantage of the husband ; so it shall not be void here for the advantage of the third person . but others are of a contrary opinion , and they say the husband cannot take it immediately from his companion , and therefore it is void as to him , and good as to the wife , & the other part of the deed , viz. the release , will inure to the husband . and here both the things make the frankmarriage good , for the livery and the deed may be delivered both at one time . if the husband be tenant for life , and the reversion be granted to him and his wife , the fee remaines in them in jointure ; for there be no moities between them . land is let to baron & fem habendum , the one moity to the husband , the other to the wife , the land is confirmed to them in speciall tail , rendring a hawk , the lessor shall have two ; for the baron shall have one moity of the inheritance ; for his possession was severed from the possession of the wife , viz. in the one moity ; so that of that moity the husband is seised in speciall tail , and the wife hath nothing . of the other , whereof the wife was tenant in common with the husband , the baron was thereof seised , in right of his wife , then he had a sufficient estate , whereupon a confirmation might inure jointly to them . if land be given to the baron for life , the remainder to the wife for life ; and their estates are confirmed in tail . the baron shall have one moity in tail only , he and his wife the other moity , and yet the tail is not executed for any part . quaere , for this is a good case . if husband and wife make a lease of the wives land , rendring a rent , the husband distreins , and avowes , and dies , the cattle are discharged ; for they do not belong to the executor , being they are but a pledge , and the wife is to have the duty , and therefore the executor cannot detain the pledge , and it is not like the case where the husband recovers upon an obligation made to him and his wife , h. . . although the husband can give nothing to his wife immediately , yet if a disseisoress makes a lease for life , the remainder to her self in tail , the remainder to a. in fee , and after marries the disseisee , who releases to the tenant for life , this shall inure to the wife . a reversion is granted to baron & fem and to a single man and woman in fee , the single persons marry , and the tenant atturns , then the single man and woman are divorced , the baron & fem shall have but a third part . if a man makes a feoffment to a. and a fem sole , with a letter of atturny to deliver seisin , and before livery they entermarry , they shall take by moities . land is given to a. and b. his wife , and to another baron & fem in fee , they are disseised , and a. releases to the disseisor , and then a. and b. are divorced for cause which hath relation . b. and the baron & fem bring an assise , leaving out a. and some think it is maintainable ; for when a. and b. are divorced , yet the other baron & fem shall hold the moity to them ; for being the purchase took effect , and vested by the livery , and at that time the baron & fem not being divorced , took a moity , that remaines still ; for to all strangers a. and b. shall be said to continue husband and wife ; for if a stranger had bought the goods of the wife , and then they had been divorced , yet he shall retain the goods , as it is held in h. . and if the husband had made a feoffment , the wife could not have an assise against the feoffee , but must bring her cui ante divortium . a reversion is granted to a man and a fem sole , and they marry , and the tenant atturns , they take by moities , for the atturnment does operate upon the deed ; so if they marry before livery is made . if baron & fem make a lease for life , and pray to be received , and the husband makes default , and upon his default the wife is received , now she admits the discontinuance , yet if she be barred she shall have her cui in vita , for she had not title then to have a cui in vita ; for that accrues by the death of her husband . if a feoffment with warranty be made to a man and a fem sole , and they marry , and are impleaded , and recover in value , the husband dies , they did not take by moities . if land be bargained and sold to a man and a fem sole , and they marry , and the deed is inrolled , there they take by moities , for it hath relation . but if baron & fem , tenants for life , before the coverture , recover in value , by reason of the reversion with the rent , they shall take the value by moities . but if a lease be made to a man and a woman for life , upon condition to have fee , they marry , and after performe the condition , they shall not have moities in the fee , if a man be seised of land in right of his wife , and warranty is made to them , and the heirs of the husband , and they recover in value , there shall be no moities ; for the recovery in value must be according to the nature of the estate . if a fem , being tenant for life marries , and the husband atturns to the grant of the reversion , and then he is divorced , yet it will binde the wife . if a woman hath a lease for twenty years , and the lessor confirmes to the husband for forty yeares , who dies , she shall have the residue of the twenty years . the husband hath a term in right of his wife , and grants so many years as shall be behind at the death of him and his wife , quaere if this be a good grant ? the husband is bound in a statute , and after he and his wife levy a fine of the land of the wife to a. the husband dies , the land shall not be extended in the hands of a. for nothing passed from the husband , but the estate which he had during the coverture , and a. shall have the same benefit the heir of the wife should have had . but if the husband had made a lease for yeares , or granted a rent charge , before the fine levied , there the conisee should never have avoided it , because they had been executed at the time of the levying the fine . if husband and wife accept of a fine sur conusans de dvoit come ceo , &c. from b. of the wives land , and they render it to him in tail , yet the reversion is in the wife onely , and the husband hath nothing but by reason of the coverture , ass . p. . a fem covert is infeoffed , the husband being beyond sea , who , upon his return , disagrees ; yet the freehold shall not be devested without an entry ; and if the husband dies before his entry , the wife is remitted , and the title of entry which the feoffor had is taken away . if a fem tenant for life marries , the husband makes a feoffment , the lessor enters , the husband dies , she cannot avoid the forfeiture . if a fem covert be infeoffed , and disseised by a stranger , the husband disagrees to the first estate , and dies , the wife may enter , and retain against the first feoffor , for the disagreement was frivolous , the wife having only a right quod not a. if a fem jointenant for years marries , the survivor shall have all the term. so if an obligation be made to a fem sole and another , and she takes husband and dies , the survivor shall have all ; for 't is a chose in action . if a fem hath a term , and marries , and dies , the ordinary may commit administration of it to a stranger . but the law seems to contradict this ; for the marriage is a gift in law , the wife dying first . if a fem hath a lease for years , and marries the villaine of the lessor , he may enter into the land as a perquisite . the husband is tenant for life , the remainder to the wife for life , the remainder to the husband in tail , how the husband might discontinue the estate in tail , without barring of it , was the question ? the intention was this , that the husband and wife should make a lease to a. for the life of the husband and wife , and the survivor of them , and that a. should grant his estate to the husband , and then he should make a feoffment , and that would prove a discontinuance . land is given to a. and a fem sole , and to the heirs of the body of the woman begotten by a. they marry , and have issue , the husband aliens a moity , and dies , the issue dies without issue . if the woman may enter into the moity for the forfeiture ? being she could not enter at the time of the alienation . and also she is tenant in tail after possibility , &c. in which case she hath but a freehold in remainder , as she had before ; but otherwise , if it had been an estate in tail , in remainder after the estate vide ass . . the husband makes his will and devises out of his mannor of dale a certain rent to his wife , for her life , in consideration , that she should not have her dower , and dies . the wife recovers by default in dower the third part of the land , she shall have the whole rent out of the two parts ; for the recovery is upon a good title . and a devise cannot be averr'd to be a jointure within the statute ; for at that time , neither land , nor rent were devisable , and therefore she was discovert when the devise took effect : and so both out of the words of the act , and also out of the equity ; and then from that time the title of the land relates paramount , the title to the whole rent shall remain . vide leases , atturnment remitter . bastard . if the bastard enters into the mannor , and recovers in a cessavit , being the mulier dis-approves the estate of the bastard , he shall not take benefit of the recovery . if the bastard dies seis'd , the mulier within age , some think the right is gone , no more than if the mulier had been born after the descent . so if the bastard enters , and the mulier dies , his wife enseint , and before the birth the bastard dies , and his issue enters , the mulier is not bound by that , and others think the contrary . if a bastard dies , seised of land , his wife enseint , and before the birth the mulier enters , the issue of the bastard ; when he is born shall be bound ; for by a dying seised onely without a discent to the issue , his right of entry was not taken away : for if a disseisor dies without heir , the disseisee may enter upon the lord by escheat , because there was no heir to make it a descent : so in this case . if a bastard puisne enters into land in borough english , and dies seised , and his issue enters , the mulier is bound . but such a bastard puisne , is intended , where the first wife , by whom he had the mulier , dies , and then he hath a bastard , and marries the same woman ; for if a man marries the woman by whom he hath a bastard , and she dies , and after he hath a mulier by another wife , though they be not by the same mother , yet such a bastard gaines the inheritance to his issue , if he dies without interruption : by the same reason the bastard puisne . if the mulier ou ts the bastard , who recovers against him in an assise , where the mulier pleads ne unques seise , &c. and after dies , that descent shall take away the right of the mulier ; for the possession which he had is defeated by the recovery : for he shall have an assise of mortdancester , or scire fa●ias , where such a possession is removed . but otherwise it had been if he had entered . if a bastard dies , living the father , and leaves issue , his issue shall be in the same case against the mulier , as the father should have been , if he dies seised without interruption . if the heir of the bastard be in by descent , he shall gain the land from the collaterall heir , or against the lord by escheat , as well as against the mulier puisne . if the issue of the bastard be the first that enters , and dies seised , his issue shall retain against the mulier . if the bastard dies , and his issue endowes the wife of the bastard , quaere , if the right of the mulier be bound ? but if the wife of a common ancestor be endow'd , the dissent of the reversion shall be to the mulier . quaere . if a remainder be directed to the right heirs of a. and he dies , and the remainder vests , and after the right heir is proved a bastard , or is made so by act of parliament , yet he shall hold the land for ever , because he takes by purchase . if there be bastard eigne & mulier puisne , the father makes a lease for yeares , and dies , the yeares expire , the bastard enters , and dies seised , his issue enters , the right of the mulier is not bound ; for the possession of the lessee for years , was the possession of the mulier ; and being that he was once seised , so that he may have an assise , or mortdancester , his right shall not be taken away . if there be bastard eigne & mulier puisne , and the father dies seised of a mannor , the bastard enters , and gets the services of all the tenants , and after one of the tenants makes a lease for life to the bastard , who dies seised , and the issue enters into the mannor ; the mulier may distrain the tenant who made the lease for life , for all the services due after the death of the father , for his entry was not taken away , as to the services of that tenancy , the seignory of that tenancy being suspended in the estate for life , and so no descent ; but if there had been a lease for yeares it had been otherwise . grandfather , father , and son , the father a bastard , the grandfather seised in tail . quaere if the son shall inherit ? if there be bastard eigne & mulier puisne , and the father is disseised and dies , the bastard enters upon the disseisor , and dies seised : being there was no possession in law descended from the father , but onely a naked right which vests in the mulier , therefore the descent of the bastard shall not take away the right of the mulier . but if the father had died seised , and a stranger had abated , upon whom the bastard had entred , and died seised , there the mulier shall be barr'd , because the possession in law descends : tamen quaere , for the entry of the abater vests a right of action in the mulier , which cannot be devested by the entry of the bastard . if there be a son bastard eigne , and daughter mulier puisne , the father dies seised of a rent , the daughter having a husband the bastard gets the rent , and thereof dies seised , and that descends unto his issue , yet the husband shall be tenant by the curtesy , and the mulier shall not be bound by it , for the rent was vested in the daughter at the time of the descent , and being the daughter may choose whether she wil admit her self out of possession , or no ; therefore it is at her election whether she will suffer any wrong to be done to her self , or no. if a man dies seised , having a son a bastard eigne , and a daughter a mulier puisne being married at that time , the bastard enters and diesseised , his issue enters , and the husband dies , perhaps the wife shall not be bound no more than an infant in that case . but if the bastard had entered , and after she had taken husband , &c. it had been otherwise . if a man hath a daughter a bastard eign , and a son a mulier puisne , perhaps the maxime does not hold , for she had no colour by the law. if there be two daughters , mulier and bastard , and they make partition , and the bastard dies seised without issue , the land shall not escheat , for if the lord will say she was a bastard , and so it ought to escheat , the mulier shall say that she her self is a mulier , and therefore it belongs intirely to her , and if the lord will say , they made partition , by which the mulier had admitted her inheritable , then the mulier shall say , by that i did admit her to be my sister , and so i am her heir , thus the lord is estopped every way . lord mesne and tenant by equall services , the tenant fore-judges the mesne , the lord dies , having a bastard eigne & mulier puisne , the bastard hath issue and dies seised , after he had married with the tenant , the wife dies , the mesne reverses the fore-judger by error ; the question is , if the mulier shall have the rent of the seignory ? it seems the maxime holds place as well of a rent , as of land , as it is holden in e. . bastard . and though the rent was suspended by the marriage , yet the maxime holds place , as to the dying seised of a rent without interruption ; for if a man hath a rent in fee , and becomes tenant by the curtesie of the land , and dies , his heir shall have a mortdancester of the rent , which he could not have , if his ancestor did not die seised . vide release . bona felonum , &c. the goods of those who are attainted by verdict , or outlawry , or confession , are said cattalla felonum , and if a man flies for felony , the goods which he hath at that time are bona waiviata , and though he be attainted after , yet they are so still . but if a man flies for felony , and after he is taken , and acquitted , there his goods are forfeited , as catalla fugitivorum : but in all the cases the property must be in him that flees . but by some bona waiviata are those which are stollen by a felon , and left . v. . e. . e. . . borough english . a man dies without issue , seised of an acre in borough english , having two uncles , the youngest who enters into the acre , by reason of the possession is voucht with the eldest , by reason of a warranty entred into by the nephew , they lose , the tenant who voucht them having recovered , dies , leaving two sons , the eldest sues execution , and the youngest ou ts him , vide h. . . a. charge . grandfather , father , and son , the father disseises the grandfather and dies , the son grants a rent charge , the grandfather dies , the son shall not avoid his own charge by the accession of this new right . if the son disseises the father , and grants a rent charge , and the father grants a rent charge , the land shall be charged in perpetuum ; but if the son had been dead first it had been otherwise , and his son should have holden it discharged . if a stranger disseises the father , and grants a rent charge , and infeoffs the son , and the father dies , the son shall hold it discharged . if the father disseises the grandfather , and dies , the son enters , and grants a rent charge , the grandfather dies , he shall hold it discharged , although he was of full age at the time of the charge ; [ vide sect. preced . cont . ] as if tenant in tail infeoffs the issue within age , who grants a rent charge at full age , after the death of tenant in tail the son shall hold it discharged , for in both cases he is in of another estate . if a disseisor grants a rent charge , and is disseised , a release is made to the second disseisor , the charge remains . if two jointenants grant a rent charge , provided that it shall not charge the person of one of them , some think he shall not charge the other . tenant in tail grants a rent charge in fee , and makes a lease for forty yeares , rendring a rent , and dies , the issue accepts the rent : some think the grantee shall have the rent during the lease , and the life of the issue , though the lessee surrenders ; quaere , for the reversion is discharged . the father disseises the son , and grants a rent charge , the son endowes his wife , ex assensu patris in the same land , the father and son die , the wife enters as tenant in dower , she shall hold it charged ; for she doth not claim from the possession in law , but from the possession charged . if tenant in tail grants a rent charge , and dies , the abator shall not hold it charged . but by many the rent in the first case is avoided , for the freehold was discharged . the father disseises the son , and grantes a rent charge in fee , and then makes a lease for years , the son confirms the lease , the father dies , the rent is extinct . so if a man grants a rent charge in fee , and makes a lease for years , and grants a reversion to the king , or to the grantee , the rent is gone . if there be two disseisors , and the one grants a rent charge , the disseisee releaseth to the other and his heirs , he shall hold it discharged , for he claims meerly from the disseisee . but if one hath two sons by divers venters , and dies , and before entry the eldest grants a rent charge , and dies without issue , the youngest hath the land from his father , yet he shall hold it charged , for the eldest hath such an estate as he might charge ; for if the eldest had died without issue , and the land had gone to the unkle , and from the unkle to the father , though the father cannot be heir to the son , yet being the land was charged he shall hold it charged ; so in the other case , quaere , for there is a mesne descent . tenant for life , the remainder in fee makes a gift in tail with a remainder in fee , he in the first remainder releases all his right to the donee in tail , not saying to his heirs , and after he grants a rent charge to a stranger out of the remainder in fee , and dies , the donee dies without issue , the heir of him in remainder enters , if he shall hold it charged ? for if he be remitted to his ancient right , then the land is discharged against him . and some think the release could not give the right in fee , which the releasor had to the releasee himself , for then in a manner he might release to himself , and if the release inures but as a confirmation , then without question the heir shall be remitted , and shall hold it discharged ; but if the remainder had been appointed in tail to him who had it before in fee , the remainder over in fee , then the release ought to inure to the first estate in tail , and also to the fee , and then if the last fee be fortified , the mesne remainder is established , and so the release inures to himself . the son makes a lease to the father for life , who makes a lease for life to a. the remainder in fee simple to the son , the son grants a rent charge out of the remainder , and after releases to a. and his heirs all his right in the land , the father and a. die , if his issue shall hold it charged ? first , it is cleer , that the right fee is divested , and a tortious fee setled in the son all at one instant , as if tenant in tail makes a lease for life , the inheritance of the estate in tail is devested , and a fee simple vested all at one moment . so if the husband makes a lease for life of the wives land , the fee which the husband had in right of his wife is devested , and a new foe in himself in his own right vested at the same time . so in the first case ; then when it is granted out of the reversion , it is all one as if it had been granted out of the remainder , because a reversion and remainder agree in substance , viz. terra revertens ; then when the son released unto a. and his heirs all his right , that shall not inure as an entry and feoffment , for a. was in by title without disseisin ; then it does not give to him the remainder ; as if he had released to him all his estate in the land , or as if he had released all his right , habendum the land in fee ; for there the fee passes , but here he hath both the right and the estate , and then a release of the right does not reach the estate . others are of opinion that the right in fee cannot drown in the estate for life , and in the remainder it cannot merge ; for then in truth he releases to himself . but if a fem disseisoress make a lease for life , and after marries with the disseisee , who releases to the tenant for life in fee , the fee will merge in auter droit for the benefit of the estate in fee in reversion , then if the release do not perfect the remainder , if the grant of the rent which is an assent to the remainder does so inseperably unite the remainder , the rent and the right , so that the right shall be drowned in the estate for the preservation of the rent ? and some think it shall not ; for if a disseisee takes an estate in fee from him who hath the land by descent , he agrees unto it ; and yet if he dies seised , his heir shall be remitted , and so the rent charge avoided . but others think , that in as much as by the grant of the rent charge he hath agreed to the remainder , and so to the livery , he cannot now enter upon the tenant for life , and then the release gives the remainder , and so the land continues charged . claim . if a reversion be granted upon condition which is broke , the reversion shall be adjudged in the lessor without claim , for the grantee was privy to the condition : as if a condition be annext to the feofment , that if the feoffee doth not perform such an act , that then he shall have it but for life ; if he does not perform it , the estate in fee is presently vested in the feoffor without claim , for he was privy to the condition . but the lord shall not have a reversion granted to his villein , or aliened in mortmain , or to his mother , who consents to a ravisher without claim , for there is no privity . but , in these cases , if the particulartenant hath an action of wast brought against him by the lord , or his son , perhaps the using of the action will countervail a claim : and note that he ought to come upon the land and make a claim , and he shall not be punish'd for it , no more than the lessor , who comes upon the land to see if waste be committed ; for it is a condition in law annex'd to all the cases . the heir makes a feofment upon condition , the mother recovers dower , the condition is broke , quaere what course he must take to recover the reversion ? for , if the mother recovers her dower against an abator , the heir shall not gain the reversion by claim . and if tenant for years be outed , and the disseisor dies seised , and the terinor enters ; many are of opinion , that the disseisee shall not have the fee by claim . if there be a disseisor of twenty acres , and the disseisee enters into one , saying nothing , he may have an assise for the rest ; for the possession shall not be devested by the construction of the law without a particular claim of the party . capacity . land is given by deed to a. and a dean & his successors , and livery is made to a. in the name of both , the dean takes nothing , for they take in several capacities , and in common , and not jointly . but if the discontinuee enfeoffs the issue in tail within age , and another , and makes livery to the infant in the name of both ; though the infant be remitted for a moity , yet the other moity vests in the other , and they are tenants in common , for their capacities are not several , but they take severally by the operation of the law. cessavit . if the tenant ceases for twenty years , a cessavit cannot be maintained but for the two last years before the writ . and therefore if the tenant ceases for two years , and marries , and the lord recovers in a cessavit , and the tenant dies , the wife shall be endowed against the lord ; for the cessavit cannot be maintained for the cesser before the coverture , and so the title of action shall not have relation , &c. but is grounded upon the cesser two yeares before the writ purchased , and part of it was during the coverture , and then the cesser of the husband , during the coverture shall not prejudice the wife of her dower . but quaere if the case be not ●alsly put ? for it should rather have been , that the baron ceases one year before the coverture , and another year after , and then the cessavit is brought . cessante causa , &c. the seignoress seises the body and land of the tenant , and after marries the villain ingross of the heir , and they commit wast , the heir brings an action of wast , 't is cleer that his body is out of ward , and being that the land is in ward , because an infant cannot perform knight service , and so the cause is executory , and in consideration that the signory remains and now the signory during the coverture by the intermarriage with the villain is determined in the tenancy , and so the freehold and inheritance of the seignory is merged in the tenancy by act in law , notwithstanding , that the possession of the seignory is suspended by reason of the chattle in the tenancy , viz. the wardship of the land , because that the husband shall be tenant by the curtesy , and may be granted over notwithstanding the suspension , by reason of the chattle in the tenancy , & by the same reason it shall be a release in law to the lord of the villein by act in law , and therefore the land shal be out of ward for cessante , &c. if the lord of a villain gives land in ancient demesne to the villain and afterward the lord reverses the fine by disceit , the manumission is gone , for the conveyance by the fine , which was the cause of the manumission being vacated , the effect falls to the ground . common , v. apporcionment . condition . a having two sons , makes a gift in tail to the eldest , the remainder in see to the youngest , on condition , that the eldest shall not make a feoffment with warranty , to the intent to bar him in remainder ; and if he does , that then the yongest and his heirs shall enter , the eldest makes a feoffment with warranty the father dies , and the eldest dies without issue , the yongest may enter , for the entry given to the youngest is void , and then the heirs of the feoffor are to enter ; then the father having cause to enter , and he being dead , the condition is in suspence in the eldest , and revived by his death ( v. . e. . . ) and given to the youngest ; for the condition was not extinguished by the feoffment ; and the warranty does not bind titles of entry . but if the feofment had been after the death of the father , then the condition had been extinct . if i am lessee for the life of c. and grant my estate to d. upon condition that if d. dies living c. that it shall be lawful for me to re-enter , quaere if this condition be sufficient for me to enter upon an occupant ? the mesne grants the mesnalty upon condition , that if the grantee pays , &c , by such a day , that then he shall have fee , before the day the grantor to whom the money was to be paid is attainted , yet the grantee may perform the condition , and enjoy the fee. a lease for life is made upon condition , that if the lessor grants the reversion , the lessee shall have it in fee. the lessor grants the reversion by fine to one for life , the grantee shall have it for life , and the lessee shall have it after the death of the grantee , and not before ; but if the condition had been , that if the lessee pays twenty pounds , &c. there he shall devest the possession out of the grantee . note the diversity . if the husband having a lease for twenty yeares in right of his wife , grants two years upon condition , that the grantee shall not grant over his term , and if he does , that he , his executors and assigns may re-enter ; the husband dies , the lessee grants over his term ; the executors of the husband cannot enter , for it is a condition annext to the reversion , and if they do enter they defeat the wives reversion . the eldest son cannot enter where the reversion descends to the youngest son by borough english , or speciall tail . nor the heir on the part of the father , where the land goes to the heir on the part of the mother , nor the executor of one jointenant where the testator made a lease upon such a condition , and died , for then he should devest the reversion out of the other , which cannot be . and in the principall case the wife cannot enter ; for she is not privy to the condition , neither doth she claim under the estate of the husband . as if one jointenant grants his part for yeares upon such a condition , the survivor cannot take advantage of it . but if the husband had granted over all the years upon such a condition , or the father had made feofment of the land in borough english , he should enter , for he claims by the father . some think the condition is extinct , as if a man makes a lease for years , upon condition , ut supra , and dies , having a son and a daughter by one venter , and a son by another , the eldest takes the rent and dies ; now the sister shall have the reversion , and the condition is gone ; for she is not heir . and a rent is incident to a reversion , and passes by the grant of it , but so doth not a condition . a feoffment is made upon condition , to re-infeoffe , the feoffee charges the land , the grantee brings a writ of annuity , and recovers , the feoffor enters . e. . . if a. be bound to pay ten pound to b. and he releases ten pound which he ought him ; yet this is no performance , for there ought to be a payment in fact. and therefore if one be bound to release a rent charge which he hath out of the mannor of d. and he purchases an acre , now the rent is extinct , and yet the condition is not performed ; but if i am bound to enfranchise my villaine , and i bring an action against him , the condition is performed . so if i am bound to discharge an obligation in which i am bound to a. if i purchase the mannor to which a. is a villein regardant , the condition is discharged ; for the word discharge refers to all manner of discharges . if i am infeoffed , upon condition that i shall not alien to a. and i suffer him to recover it feintly , or if i cease , so that he being my lord recovers in a cessavit , or if i acknowledge my self to be his villein , or if i make a feoffment with warranty , so that that acre is recovered by him in value , yet the condition is not broke ; for it extends only to alienations in fact. if i make a gift in tail , upon condition that the donee shall not suffer a feint recovery , if it be not to the benefit of his issue , and after in a feint writ he vouches , and a recovery is had against him , and he recovers in value , and hath execution , and that is to the just value onely , the condition is not broke . but if the donor had been voucht , it is cleer be should not have entred , for he shall not say that the recovery was feint when he was voucht , and made a party to the breach of the condition : and he cannot enter into warranty , saving the condition which is not broke , for it is but a possibility . land is given in tail to the heires males of the body of the donee , upon condition , if he dies without heirs females of his body , that the donor shall re-enter , the condition is void , for he cannot have heirs females so long as he hath issue male. a lease for years is made upon condition , that the lessee shall not alien without the consent of the lessor , he gives him leave to grant over his estate upon condition , and so he does , and enters for the condition broke , he may after grant it over without his consent ; for the condition is performed h. . . a. a rent charge is granted upon condition , the grantor makes a feofment of the land , the condition is broke , the rent is arrear , if the condition be extinguisht by the feofment , being the feoffor cannot have it in the same manner as he might when the grant was made ? but if the grant had been upon condition , which if not performed to cease , the feoffee shall have benefit of it . if a feoffment be made upon condition , that the feoffee shall make a gift in frankmarriage with the cosen of the feoffor , this seems to be a void condition , quaere if he must not make an estate for life ? so if it had been to make such a gift to a religious person . if a feoffment be made upon condition , the feoffee makes a lease for life , and dies , and the reversion dessends to the feoffor . quaere if the condition be extinct ? the mortgagee enfeoffs the heir of the mortgagor in mortgage also to be first paid , after the first day the first mortgager dies , the heir tenders the money to the first mortgagee at the day , and he refuses , and he tenders the money to the heir , &c. and he refuses . some think the son may perform the condition , for it is not suspended , being a collateral condition ( vide e. . the case of a corody ) and the payment ought to be made to the mortgagee ( though he hath made a feoffment of the land to the executors , and not to the heir , as it shall be and e. . . is not law. and upon the first refusall the heir is not remitted , for he shall not be remitted upon a title . if the tenant atturns upon condition , which is broke by the grantee , yet the reversion is not devested ; for the assent cannot be conditional , for he doth not claim the reversion from him that atturns , neither can it be made conditionall by the act of a stranger to the grant : for if tenant in tail makes a lease for years , rendring a rent , and dies , and the issue accepts the rent upon condition that it shall not prejudice his entry to avoid the lease , yet he shall avoid the lease ; for the assent is a thing executed , which wil not suffer any condition performable . but if the condition be precedent to the assent , the condition is good . but a release of right may be upon condition , as a release of the seignory to the tenant upon condition , so of a release upon condition from one jointenant to his companion , for there the thing vested in his person is devested , unto which a condition may be annext . but otherwise of an assent . and if the patron assent to the charge of the person upon condition , that is good , because the assent is an interest in law. if a gift in tail be made upon condition , the donee shall make a feofment , which is done accordingly , yet the issue shall have a formedon ; for if the condition be not performed the donor could not have entered , and when it is not performed , yet the estate of the issue shall not be defeated . if a lease for life be made with such a condition , yet the lessor may enter for the forfeiture , if the feofment be made . so if the lease had been made upon condition that he make a feoffment , all is one . if an infant be infeoffed , upon condition to enfeoffe another , which is done accordingly , yet the infant may enter , for he hath performed the condition . if two are infeoffed , upon condition to infeoffe a. if one does infeoffe him of the one moity , and the other of the other moity , the condition is performed , for the intent is fulfilled . if a lease for life be made , with a condition of accruer , if before the day the lessor be attainted , yet upon the performance of the condition the estate enlargeth . if a man hath land , by descent on the part of his mother , and makes a feoffment upon condition , to be performed on his part , or the heirs , on the part of his father , and the father dies , so that the land descends to him , the condition is extinct , although he dies without issue ; for notwithstanding he had the land from his mother , yet the condition goes to the heirs on the part of his father , being a new thing . as if a feoffment be made upon condition of land in borough english , the eldest son shall not enter for the condition broken , as the heir male must do where a condition is descended upon the heir female . but on the other side , if the son makes a feoffment to his mother , of land descended to him from his father , and after the mother dies , and the son dies without issue , the heir on the part of his father must perform the condition , and the heir on the part of his mother shall have the land in the mean time , and if the condition had been broke in the life of the mother it had been all one , and the heir on the part of the father should have entred ; for the son is not remitted by the descent . the case was ; after the entry the son granted a rent charge , and died without issue , if the heir on the part of the father shall hold it discharged ? and some think he shall . if a. makes a lease for years upon a collaterall condition , and the lessee makes a lease for years , and then surrenders to the lessor , it seemes to some that the condition for the rest is extinct ; for he hath part of the estate by his own act , so that if he should re-enter , he could not be in , in the same manner as he was before ; for he cannot avoid all the estate . if a feoffee upon condition make a lease for life , and after the feoffor releaseth the condition to him in reversion , the estate for life is discharged of the condition , and it seems to them all one , viz. a release in deed , and in law. and note if feoffee upon condition makes a lease for life , a release of the condition to tenant for life shall extend to all the condition against the feoffee . and it is cleer if there he feoffee upon condition of two acres , and the feoffor releases the condition in one , it remains in the other , as it shall be of a warranty annexed to two acres , for the condition is several as the right is , and shall remain in part of the land , as the right shall do . but if the condition had been by two , or to two , there a release by one , or to one , dischargeth all the condition , as it shall do a warranty : but if a man hath two acres , one to him and his heirs males , and the other to him and his heirs females ; and makes a lease for years of both of them , rendring a rent upon condition , and dies , having a son and a daughter ; the condition remains for the son in one acre , and is extinguished for the other . and if lessee upon condition surrenders one acre , it remains for the other . tenant for life makes a lease for years , upon condition to have it for the life of tenant for life , the lessee dies , and his executors perform the condition , yet the freehold shall not accrue to them . for when the lessee for years died , the condition was gone ; for the executors are not capable to perform the condition to increase a freehold , although they may to encrease a term ; for the one is testamentary , and the other not . vide infant , fem covert , entry , rent . confirmation . lessee for life makes a lease for years , rendring a rent , the lessor confirms the estate of the second lessee , tenant for life dies within the term , and the lessor distrains and avowes for the rent , some think he cannot . tenant for life grants a rent charge in fee , the lessor joins in a feofment of the land , the rent shall indure for ever ; for it is the feoffment of the tenant for life , and the confirmation of the lessor . if a disseisor takes a confirmation of the lord to hold by lesser services , and the disseisee releases to him , yet he shall take advantage of the confirmation . if there be two tenants in common for life , and a confirmation is made to them and their heirs , they are tenants in common of the fee , as they were of the freehold ; for a confirmation inures according to the nature of the estate upon which it inures , and a confirmation does not alter the estate . if land be given to two men , and the heirs of their two bodies , and the donor confirms the land to them in fee , they are not jointenants of the fee. if a disseisor grants a rent charge to the disseisee , and he grants it over , and after re-enters , he shall hold it discharged , for it cannot inure as a grant , and as a confirmation . if there be lord , mesne , and tenant , each by fealty and twelve pence , the lord confirms the estate of the tenant to hold by one penny , that confirmation is void , for want of privity ; for there ought to be an immediate tenure where it is to be abridged . as if tenant for life makes a lease for years , and the first lessor confirms the estate of the lessee for years , that is void for want of privity . so if tenant in tail makes a lease for his own life , and the donor confirms , that will not enlarge his estate . lord , mesne and tenant , each of them holds by twelve pence , the mesne is outlawed in felony , the lord confirms the estate of the tenant to hold by one penny , the heir of the mesne reverses the outlawry by error , and distrains and avows for twelve pence . there is diversity , viz. if the tenant dies without heir , the law cast the possession of the tenancy upon the lord , so that he hath the possession in law before entry . but if the tenant be attainted of felony , there the lord hath not the possession either in fact or in law before entry ; for if the tenant continue twenty years in possession after the attainder , he shall be said to be tenant , then here the law doth not cast the possession of mesnalty upon the lord , and so there wants that privity between the lord and the tenant which is requisite to the deminishing of the services . then here the confirmation inures to prove his agreement to the escheat , or otherwise , it shall be void , which the law will not suffer . if the mesne grants the mesnalty to the lord par auter uge , and after the lord had confirmed , ut supra , and after cesty que vye dies , there the mesne shall hold according to the confirmation ; for the fee of the seignory was not in suspence , because he had it but par auter vye . if a fem hath a lease for twenty years , and the lessor confirms to the baron for forty years , who dies , the fem shall have the residue of the twenty years , quod nota . if a disseisor makes a gift in tail , or lease for life to a. to whom the disseisee confirms , yet after the estate determined he shall enter upon him in reversion ; for the estate is only fortisied , but if the confirmation had been to the disseisor , he cannot enter upon the particular tenant . but if the disseisor had given , &c. to a. and b. and to the heirs of a. and the disseisee confirms the estate of b. quaere . but it is cleer , if he had confirmed the estate of a. he should never enter upon his heirs ; for if a disseisor gives land to c. in tail , the remainder to the right heirs of c. and the donor confirms the estate , that shall go to the fee. and if a disseisor gives land to a. for life , the remainder to b. for life , and the estate for life to a. is only confirmed , quaere . if a disseisee , where his entry is taken away , and a stranger enters upon the heir in by discent , confirms the estate of the stranger , though his confirmation gives no possession of the freehold , yet his ancient right is gone for ever . but if the heir who is in by discent were disseised by a. who makes a lease for life to b. and the first disseisee confirms his estate , and the heir enters , the disseisee hath no remedy during the life of b. for the confirmation continues so long , and no longer . and the heir hath the right of b and so the disseisee cannot have an action against b. and by the same reason he cannot have an action against him that hath his estate , in respect of the first disseisee . so if the heir in by descent , had made a lease for life to the disseisee and a stranger , and the disseisee confirms the estate of the stranger , there the disseisee hath no remedy , during his own life , though the heir re-enters , causa qua supra , but his heir shall have remedy ; for it was but a conclusion . and some say that the confirmation in the first case shall not extend to the right that was suspended , as a release will do , no more than if a man hath a rent charge , and he and another disseise the tenant of the land , and he which hath the land confirms the estate of his companion , the disseisee re-enters , the rent is revived ; for as the rent was not grantable , being suspended in the inheritance , no more may the confirmation extend to it , or touch it . two jointenants for life of two acres , the land is confirmed to them in fee of one acre to the use of one , and of the other acre to the use of the other in fee , they are severall tenants of the freehold of the severall acres , for the confirmation is drownd by the confirmation in fee to the vse , and the freehold made according to the vse , as if it had been before the statute of h. . the parson makes a lease for twenty years , the ordinary confirms for ten , being it is an intire thing , it cannot be confirmed in part , as a confirmation to the disseisor , tamen quere ; for the assent of the patron cannot be like to that . the husband is tenant for life , the remainder to the wife for life , a confirmation is made to them in tail , how it shall inure ? some think that they shall take the estate by intireties , and not by moities . it may be said that the estate for life to the husband , the remainder to the wife continues , but if not , then to the wife for one moity , and a moity in the freehold shall be extinct , &c. vide baron & fem , & wast . continuall claim . land is given to baron & fem and a third person , and to the heirs of the bodies of the baron & fem , they have issue , the baron dies ; tenant for life aliens a moity in fee , the wife makes continuall claim , the issue dies without issue , the wife may enter upon the heir of the feoffee , who dies within the year after the continuall claime . quere . it seemes though at the time of the continuall claim she had a right of entry , yet now the estate is changed , and she shall not enter . quaere how continuall claim may be made by tenant in common for the possession pro indiviso . if the disseisee dies after he hath made continuall claim , and within the year a descent is cast , the heir of the disseisee cannot enter , for it gives only a title for the advantage of the person who durst not enter . but if the descent had been in the life of the disseisee , then the heir of the disseisee may take advantage of it . for a title of entry discended . if tenant for life , with a remainder over , be disseised , and makes continual claim , & dies , he in remainder shall avoid a descent happening within a year after the claim , for his interest was reduced . otherwise of a son , in the life of his father he hath no interest . if two jointenants are disseised , and one makes continual claim , and then dies , and after a descent is cast , quere . if the grandfather be a disseisor , and dies seised within a year after continual claim made , and after the year , and before entry , the father dies , and the son enters , the disseisee may enter upon him , quaere , for some think the contrary . covenant , videvse . damages . land is given to baron & fem in fee , the husband dies , the wife waives the possession , and recovers dower against the heir , she shall have damages ; for when she refused , the husband shall be said to die seised , and so within the compass of the statute . if the husband makes a feofment , and takes an estate to himself and another in fee , the husband dies , the wife shall not recover damages ; for she recovers her dower of the estate which he had before , and not of the estate whereof he died seised : so if he had retaken in fee upon condition , &c. for the law says she is endowable of the first estate , and not under the condition . daughter . a man makes a lease for years , and dies , having a daughter , his wife enseint with a son , the daughter confirms the estate of the lessee to hold to him for life with warranty . the son is born , and dies without issue , the daughter enters upon the lessee , and upon a re-entry she brings an assize , some think it maintainable . but if the son had entred upon him an ejectione firmae lies . a. hath two daughters , the eldest disseises the father , the father dies , she hath issue and dies ; the other enters , claiming her part of the moity , and she brings her assize , that was a moot case . if tenant in tail discontinues , and dies , having a daughter , his wife enseint with a son. the daughter recovers in a formedon , and dies before execution without issue , the son born after shall not enter , nor sue execution . if the daughter recovers in value , by reason of a warranty of the ancestor before the birth of the son , the son when he is born shall enter upon her , for he recovers as heir , and it comes in lieu , and so shall be in the same degree as the first land was . a man makes a lease for years , rendring a rent upon condition , and dies , leaving a son and a daughter by one venter , and a son by another , the eldest son gets the rent , and dies , the daughter shall have the reversion , but the condition is gone , for she is not heir . if a daughter enters by purchase , or for alienation in mortmain , she shall retaine against a son born after . a man hath a park by prescription in land in borough english , and dies , having two daughters , the question is , which of them shall have it ? some think the youngest ; for a park is nothing but land inclosed , and a liberty in land shall ensue the nature of the land , also a park may be by prescription , h. . . a. . h. . . one may have the liberty of a park without allowance . then if prescription can make a park , there is no doubt but that it may be of the nature of borough english ; for the comencement of it is not known , h. . . per keble . vide parceners . deed. a. makes a feoffment of the mannor of d. to which an advowson is appendant , by deed , and makes a letter of atturny to make livery , the advowson shall not passe by the delivery of the deed before livery be made . if the mannor of d. be given by deed , with all the woods , and within the deep there is a letter of atturny , to make livery , if livery be not made , yet his executors shall have the wood. but if livery be made , then the wood shall go along with the land. if a. requires another , orgives him authority without deed , to write , seal , and deliver a grant of a rent charge out of the land of the grantor , in the name of the grantor , which is done , the grant is good ; for if i make a grant , and command one to deliver it , it will be good without deed. so if i by paroll deliver it him as an escrowle , to be delivered as my deed , upon condition to be performed , that is good , but an authority to make livery must be by deed. neither shall a woman aver the assent of the father for dower , ex assensu patris , without deed. neither can the lessor authorize the lessee to commit wast without deed. if an infant delivers a deed which bares date two years after , and at the end of the two years he is of full age , he shall not be estopped to shew the delivery before the date , no more than a fem covert , otherwise every infant may be deluded . debt . lessee for forty years makes a lease for ten years , rendring a rent , the first lessee surrenders , the lessor brings debt against the second lessee , quaere . a man shall not have debt for releif or escuage granted unto him ; for it is mixt in the realty , but his executors shall , but he must distrein . so the lord shall not have an action of debt for ayd pur file marier , or pur fair fits chivalier . but if he dies before it be levied , the tenant shall be discharged of it . an action of debt shall not be brought against the heir , and his brother in borough english , where the eldest hath nothing by descent , as it shall be against the heirs in gavel kind ; for there he may have a joint judgement against all , and not against the eldest in the other case , for he hath nothing upon which it may be levied , quod nota . an action of debt brought by executors shall be in the detinet only , although it be for arrears of rent incurred after the death of the testator . so it shall be against a man acccomptable to the testator . a seignory is granted for years , the rent is arrear , and the tenant dies , the years expire , if the grantee shall have an an action of debt against the heir , because it was due in the time of his father , and also some was due in his own time , or if he shall have an action of debt against the executors , for that which was due in the testators life time , or is without remedy ? some say that the heir , shall not be charged in debt , if the father die , not oblige himself and his heirs expressely , and the executors shall not be charged , for they were not chargeable by the death of the testator , for at that time the grantee could not have an action of debt , but his remedy was by distresse ; for then the years were not expired , and so no remedy . h. . . a. co. . . an annuity is granted for the life of a. the grantee releases all actions of annuity , he shall not have an action of debt for the arrerages , although that a. dies afterwards . devastavit , vide executor . devise . a woman hath issue a son , and by another husband hath issue another son , the second husband devises land to the wife for life , the remainder to the next of the blood of the wife . the youngest son shall take in remainder , although it be true that one is not nearer of blood to the mother than the other , and the eldest is of the most worthy blood , yet he is not neerest , and so it is uncertain who should take , according to the letter of the will , yet the intent ( which is always to be considered in wills ) shall be construed in favour of the youngest , because he was issue of the devisor , pasc . . eliz. a great case was argued in the exchequer . there were three brothers , the second brother purchased land , and devised it to his son in tail , and if he died without issue , that then it should remain to the next of the kindred of the lineage of the father , the eldest son was then dead , having a son , it was adjudged that the son of the eldest should have the land , for he is next of the lineage . for lineage shall be taken in a lineall descent , which is the most worthy line , dy. . pl. . a devise to the next of blood , the son of the eldest brother shall have it before the younger brother . if land be devised upon condition , or rendring a rent , that is void ; for it cannot be good in either case , except the reservor might take advantage of it , and the heir cannot have that which his ancestor could not . and if a man devise land with warranty , that is void , because the father was not bound . but to some there seems a diversity ; for in the last case there is a charge to the heir , and in the first it is for his advantage . if the lord devises land to his villein , this is an infranchisment against the heir , and yet he was the villein of the heir when the devise took effect . a man having three daughters , devises to them● hundred pound a piece for their marriage portions , and if any of them die before their marriage , then the other should have her portion by survivor , one dies in the life of the father , the other shall have three hundred pound after the death of the father , and yet nothing survived , for she had nothing in possession , yet they shall take it by the , intent of the devisor ; for when he says , that if any of them die before their marriage , that the other shall have her portion , this makes it in nature of a remainder , and then though the first devisee does die in the life of the testator , yet he in remainder shall take the estate per manwood , dy. . p. . as a devise to a monk , the remainder to another , the remainder is good . a. devises land upon condition , and if the condition be broke , that his executors shall sell the land , the devise as to the executors is void ; for the heir must enter for the condition broken , and then he shall hold it discharged of all conditions . a. devises twenty pound to b. when he arrives at the age of six and twenty years , and if he dies before , he devises it to c. b. releases to the executors of a. before he attain● 〈◊〉 age of six and twenty years , if it shall be a bar ? quaere . if a. devises twenty pound yearly for twenty years , the devisee hath no remedy for his not is●uing out of any land ; for he can not take it as a legacy , and an an●●●●y does not lie against executors , for the testator was never charged . a jointure cannot be made by devise , for land was not then devisable , and the wife was discovert when the devise took effect . if land be devised to an alien , and he is made a denizen before the devisor dies , he shall take by the devise ; for all takes effect after the death of the devisor . disablement . if i grant an annuity upon condition that the grantee shall promote me to a benefice within seven years , within which time i marry , and my wife dies within the term , yet the grantee is discharged ; for i had once disabled my self to accept of the benefice , and he had the liberty to have tendered it at that time , and i being then disabled to receive it , it countervails a t●●●●●r and refusall . so if i am bound to marry a woman by such a day , and she marries another , and the husband dies before the day , yet i am discharged of my obligation . but if he who was to be promoted , or married had been a stranger to the obligations , it had been otherwise . if i am bound to enfeoffe the obligee before a day , and before the day he takes a lease for yeares of the same land , which expire before the day , yet i am discharged ; but it had bin otherwise if there had been no day limited ; for there it is not to be done before request . a feoffment is made to re-infeoffe , the feoffee grants a rent charge , the grantee brings a writ of annuity , and recovers , if this be a disablement to re-infeoffe , quaere ? disagreement . a lease is made to baron & fem for the life of the baron , the remainder to the right heirs of the husband , the husband dies , the wife cannot disagree , for the estate is determined . but if the estare had been made to them by a disseisor , she might disagree to save herself from damages . if land be given to baron & fem in fee , and the baron makes a feoffment , and an ancestor collaterall of the wife releases with warranty , and dies , the husband dies , the wife cannot disagree and claim her dower , for her estate was bound , and her right determined by the warranty . if the husband be remitted to an estate , the wife may disagree , and claim her dower . an atturnment is good , although he that atturned doth after disagree . vide dower , & baron & fem. discharge . if the disseisee enters upon the heir of the disseisor , end grants a rent charge and dies , the issue shall hold it discharged , for he is remitted to his ancient right . so if the heir of the disseisee enters upon the disseisor , and grants a rent charge , and the disseisee dies . but if the son disseises the father , and a. and the father dies , he shall hold it charged , for he is not remitted . if the father disseiseth the grandfather , and grants a rent charge , and dies , the son shall hold it discharged , for he claims from the grandfather . lord , mesne , and tenant , the tenant aliens in mortmain , the lord enters , and grants a rent charge ; and after his title is come , viz. the year is past , and the mesne hath not entred , the lord shall hold it discharged , and his issue also ; for he shall not be remitted for a title , as he shall be for a right accrued . if the father disseises the grandfather , and dies , and the son enters , and grants a rent charge , and the grandfather dies , he shall hold it discharged , although he was of full age at the time of the grant. as if tenant in tail infeoffes his issue within age , who grants a rent charge at full age , and then the tenant in tail dies , the issue shall hold it discharged . if the disseisor grants a rent charge to the disseisee , who grants it over , and after enters , he shall hold it discharged . so if tenant pur auter vye grants a rent charge , and the reversion descends upon him , and cesty que vye dies , he shall hold it discharged . if a stranger disseises the father , and grants a rent charge , and infeoffes the son , and the father dies , he shall hold it discharged . land is given to a. and b. for their lives , the remainder to the right heirs of him who survives . b. grants a rent charge in fee , a. dies , if the heir of b. shall hold it discharged , quaere . if it had been given to them , quam diu simul vixerint , and to the heirs of him who first dies , the heir shall not take the land by descent , but by purchase . a. having a wife , makes a feoffment upon condition , and dies , the wife is endowed by the feoffee , and then grants her estate to the feoffee , reserving a rent by indenture , the heir enters for the condition broken , he shall hold it discharged of the rent , note her title to the land was paramount to the condition , but puisne to the rent . if a dean hath a rent charge in fee , and the tenant aliens the land to the dean in fee , the lord enters for the alienation in mortmaine , he shall hold it discharged of the rent , for when he entred for the alienation in mortmain , he did not avoid the livery , but affirm'd it by his entry . so if the dean before the entry had entred into a statute , the lord should have holden it discharged of the execution . but if tenant for life aliens in fee to him that hath a rent charge issuing out of the land , and the lessor enters , for the forfeiture , he shall not hold it discharged : for the lessor hath the same feesimple he had before the making the lease , and has his own estate , and not the estate which the lessee gave to the feoffee . many think the contrary in the first case ; for his estate in the land was always defeasable . vide charge , rent , execution . discent . a disseisor infeoffes his wives father who dies , so that the land descends upon the wife , if the disseisee may enter , quaere ? the husband surrenders the freehold of his wife to him in reversion , who dies seised , if the wife may enter after the death of her husband ? for there seems to be a discent . if a gift in tail , or lcase for life be made , rendring a rent with a re-entry , for default of payment ; the lessor hath cause of entry , and the estate in tail expire , or lessee for life dies , after a disseisin , or descent , yet the lessor , &c. may enter , for the land was recontinuable at all times . and if tenant for years , with a condition be outed : after the term and a discent cast , the lessor shall enter for the condition broken . lessee for years , the remainder in tail , he in remainder grants in fee , the lessee at turns , the years expire , the grantee enters , and dies seised , tenant in tail dies , the issue may enter , for the grant was but for the life of tenant in tail , and then he died not seised in fee , and if the dying seised had been after the death of tenant in tail . if it will take away the entry , quaere : but if the issue of the issue of the grantee had entred and died seised , the entry had been taken away . if tenant in tail infeoffs his donor , who dies seised , the discent will take away the entry of the issue , quaere ? if there be two sons , and the youngest hath two daughters , the grandfather seised of two acres at common law , and twenty in borough english , gives the two acres with the youngest in frankmarriage , the youngest son dies , the grandfather dies siesed , the twenty . acres shall descend equally to the two daughters , and the two acres shall not be put in hotch potch ; for the custom as well as the descent makes the title . the disseisor dies without heir , his wife enseint , the lord enters , a son is born , the disseisee enters upon the lord. if the entry had been before the birth it had been lawfull , and he remitted . if a stranger abates , the disseisor having issue , or if after abatement a son had been born , the disseisee could not have entred ; for the abator may say that the land descended to the issue whose estate he has . if the tenant makes a feoffment , pending the praecipe against him , the plaintiffe recovers , then the feoffee dies seised , the plaintiffe cannot enter upon the heir ; for the dying seised was after the judgement , & tanta mount , as if the feofment and discent had been both after judgement , and then it had been cleer that the entry had been taken away ; for the discent is the title , and not the feoffment . but if the discent had been hanging the writ , that would not have taken away the entry . but if a recovery be had against tenant for life , and he dies , and he in remainder enters , and dies seised , that shall not take away the entry of the recoveror ; for all the estate is recovered , and he in remainder is as privy as if the action had been brought against him immediately , so of him in reversion . br. ent. cong . . the king being seised , a. intrudes , the king grants it away , a. continues in possession , and dies seised , this discent will not take away the entry of the grantee , for then he were without remedy , as if land be devised , and a stranger abates , and dies , that shall not toll the entry of the devisee . discontinuance if land be given to two , and to the heirs of the body of one , and he which hath the estate in tail makes a feoffment , and both die , this is no discontinuance , for any part ; for he was not seised of the estate in tail at the time of the feoffment . if tenant in tail makes a lease for life , the remainder for life , and after releases to him in the remainder , and his heirs , this is a discontinuance . if the first tenant for life dies in the life of tenant in tail . if tenant in tail makes a gift in tail to a. and after releaseth to him in fee , and dies , and a. dies without issue , the issue in tail may enter upon the collaterall heir of a. for the fee was not executed in the life of tenant in tail , though it passed out of him . quaere of all these cases . if the grandfather be tenant in tail , and makes a gift to baron & fem in tail , the husband dies without issue , the grandfather dies , the father releases to the wife , being tenant after possibility , and to her heirs , and dies , the wife dies , the issue cannot enter upon the heir of the wife ; for though it be no discontinuance , yet when the wife came to the fee simple , the fee was executed , and then she died seised in fee , and the discent takes away the entry . but if the wife had been tenant in tail , and then she had died without issue , it had been otherwise ; for then she had not died seised , but of an estate tail in possession , and a fee in reversion , and that will not take away an entry . if tenant in tail infeoffes the wife of the donor , that is a discontinuance . if tenant in tail infeoffes the donor and a stranger , that is a discontinuance of all for the benefit of the stranger . if tenant in tail of a rent grant that in fee , that is no discontinuance , for the grant endures no longer than for his own life . if tenant in tail makes a lease for the life of the lessee , and then disseises him , and makes a feofment in fee , the lessee dies , and tenant in tail dies , that is no discontinuance ; for the fee was not executed by lawfull means . so if tenant in tail makes a lease for life , and grants the reversion , the grantee disseises tenant for life , tenant for life , and tenant in tail die , this is no discontinuance , for the fee was not executed according to the grant. but if tenant in tail makes a lease for her own life , and disseises tenant for life , and makes a feofment , that is no discontinuance ; for by the disseisin he was seised in fee , and the fee was devested out of the donor , and then he was not tenant in tail . the first case seems cleerer , if tenant in tail dies , living tenant for life . if tenant in tail makes a lease for the life of the lessee , who is disseised , and tenant in tail releases to the disseisor without warranty , tenant for life , and tenant in tail die , this is a discontinuance in fee ; for the disseisor had the same fee executed in the life of tenant in tail which was first made , as if he had after released to tenant for life , which would have countervailed an entry and feofment . a. makes a gift in tail to b. who makes a gift in tail to c. who makes a feoffment , and dies without issue . nothing made a discontinuance to the issue of b. but the livery of b. for by that the reversion of the donor was discontinued . but when c. died without issue , that livery is determined , and the discontinuance purged ; and the feofment of c. being a stranger to the first in tail , cannot be a discontinuance , especially when there was but a right of the intall discontinued by the feofment of b. and a right cannot be discontinued . if tenant in tail be disseised , and releases to the disseisor with warranty , and is attainted of felony , and hath his pardon , and dies , that is a discontinuance ; for if he had purchased the land after his pardon , it should have gone to his issue , which proves that the blood between him and his issue is not corrupt , as it is between him and his ancestor ; then seeing the warranty was in being at the time of his death , there is no impediment but that it should descend . disseisor . lord and tenant of twelve acres by twelve pence , the tenant makes a lease of one acre for years , the lessee enfeoffs the lord , he may avow for eleven pence , for though he is a disseisor by the statute , yet to another intent he is in by feoffment ; for if lessee for years infeoffs two , a release to one will inure to both . if there be two disseisors of a house , to which estovers are appendant , and a release is made to one , the estovers remain for part , for the release doth not countervail an entry and feofment . if the lord procures one to disseise the tenant , and then the disseisor ceaseth , and the lord recovers , he shall retain against the disseisee ; for the procurement does not make him a disseisor , e. . . v. lit. in remit . cont . if the issue in tail procure one to disseise the disseisor of his fa●ther , whose heir is in by descent , against whom the heir recovers , the issue shall retain it . if the disseisor makes a feoffment , and marries with the disseisee , he may enter in his wives right . after a dissent , if the possession comes to the disseiso● , the disseisee may enter , for the action remains to him after the descent . if one disseises tenant for life to the use of him in reversion , and he agrees , if he shall have the new fee , or the ancient ; for now he is a disseisor ab initio . if he had been a disseisor immediately he had gained but a freehold by tort , but now he agrees to that which another hath , and that is a fee. if one jointenant makes a lease for years of his part , a stranger enters , claiming the moity of the other , who waives the possession , that is a disseisin to him , though the termer continues in possession ; for they were tenants in common . otherwise , if the termor had waived the possession , and the other had continued in ; for the reversioner cannot be out of possession when his joint companion held in . divorce . a reversion is granted to baron & fem , and to a single man and woman in fee , the single persons marry and the tenant atturns , then the single man and woman are divorced , the baron & fem shall have but a third part . land is given to i. and a. his wife , and to another baron & fem in fee , they are disseised , and i. releases to the disseisor , and then i. and a. are divorced , for cause which hath relation . a. and the baron & fem bring an assise , leaving out i. some think it is maintainable ; for when i. and a. are divorced , yet the other baron & fem shall hold the moity to them ; for being the purchase took effect , and vested by the livery , and at that time the baron & fem not being divorced took a moity , which remains still . a lease for life is made to a fem sole , she marries , the lessor grants the reversion , the husband atturns , and after they are divorced , yet the wife cannot avoid the atturnment . a woman is divorced , upon a surmise made by the husband , of a precontract upon her part : the wife being seised of land makes her will , and devises it away , an appeal then depending by the husband to defeat the divorce . quaere , if the appeal be not void , being sued by the baron ; for he is not the party grieved ; for he was the first agent in the divorce , and therefore it ought to have ben sued by the wife , and so the devise stands good . r. . quare impedit . . dy. . p. . h. . peckams case , h. . . h. . ravishment . . . e. . . a man marries an insidel , the wife commits adultery , and then becomes a proselite to the christian religion . quaere , if this adultery , committed before her conversion , be a sufficient cause whereupon the husband may sue a divorce ? dower . land is given to husband and wife in speciall tail , reserving a rent , the wife of the donor brings dower against the heir of the husband , for the third part of the rent . a. having a daughter dies , his wife enseint , with a son , the daughter disclaims , the lord recovers , in right of the disclaimer , a son is born , the lord dies , and the land descends to his son , the wife of the lord brings dower against him . a. grants a rent charge in fee , to commence after the death of the grantee , who dies , the wife of the grantee shall not be endowed , and yet the son takes as heir . but it was not in the father , and it shall not be assetts in the heir . but if the rent had been granted upon condition , that if the grantee , or his heirs die , their issue within age , that the rent should cease until the issue comes of full age , if the grantee dies , his issue within age , his wife shall be endowed . but the execution shall cease until the heir be of full age . as if the tenant be in ward to the lord , and the lord marries , and dies possest of the ward , his wife shall be endowed of the seignory , which was in suspence ; for the freehold was in the husband , so in the last case before , e. . the wife of the father brought a writ of dower against the heir within age , and recovered , but cessat executio until , &c. if the heir doth improve the land , the wife shall recover her dower of it as it is . but if it be by building , or other collaterall improvement , 't is otherwise . quaere , if the heir suffers the houses to decay upon the land , if the wife shall be endowed according to the value it was in the possession of her husband , or as it is now , and shall be allow'd in damages ? the son of the disseisor endows his wife ex assensu patris , the disseisee releaseth to the disseisor , if the dower shall be avoided ? the tenant ceases for two years , and after marries , the lord recovers in a cessavit , the tenant dies , his wife shall be endowed against the lord. if a rent be reserved upon a lease for life the wife shall not have dower ; for he hath not a fee , neither shall the heir have an assize of mortdancestor . if a disseisor grants a rent charge , and is disseised , and a release is made to the second disseisor , the wife shall not be endowed , for her dower is executory . if a woman hath cause to have dower of one and the same acre , as wife to a. and b. if she be barr'd as wife to a. yet she shall have it as wife tp b. if a lease be made to baron & fem for the life of the husband the remainder to the heirs of the husband , who dies , the wife shall not have dower ; for she cannot disagree to an estate determined . if land be given to baron & fem in fee , the husband makes a feoffment , an ancestor collateral of the wife , releases with warranty , and dies , the husband dies , the wife cannot disagree , and claim her dower where the estate was bound , and her right determined by the warranty . if a villaine purchase ●an estate in tail , the lord enters , and dies , his wife shall not have dower ; for being the law gave unto him his entry , the law will not give more to him than the villein might lawfully give , which was an estate for his own life . if tenant in tail , the reversion in the king be disseised , the disseisor dies , his wife shall not recover her dower , no more than if a discontinuance takes away an entry . if there be two tenants in common , and one hath a wife , and the reversion is granted to both of them , and he which hath the wife dies , the wife shall be endowed of a third part of a fourth part , if the reversion passed severally ; for then the reversion and the fee are executed for the fourth part . a gift in tail is made rendring , during the life of the donor , socage tenure , and after his death knight service , the wife shall be endowed of the knights service . if a rent be granted for life , and after by another deed the grantor releases all his right in the rent , and if it be behind , that the grantee and his heirs shall distrain , the wife shall not be endowed ; for it is still but a rent seck , and the distress a penalty , h. . . a disseisor having a wife makes a lease for life , the lessee makes a lease to the wife for her life , the husband accepts the deed , and agrees to it , the husband dies , the wife disagrees to the lease , the lessor enters against whom she brings dower . it is cleer , if a disseisor , having a wife , makes a lease to a. for life , who makes a lease to b. for life , and the disseisee releaseth to b. the wife of the disseisor shall be endowed ; for the release does not countervail an entry and feofment . if a disseisor be disseised , and the disseisee releaseth to the second disseisor , that takes away the dower of the first disseisors wife . but in the first casethe husband is remitted , and no possession in the wife whereupon a release may operate , and so she may disagree and claim her dower . if an estate be confirmed in a rent seek , and if it be behind , that it shall be lawfull for him and his heirs to distrain , the wife shall not have dower ; for it is stil but a rent seck , and the distresse but a penalty . tenant in tail of a rent discontinues it with warranty , the issue having a wife , is barr'd in a formedon by the warranty and assetts , yet his wife shall be endowed ; for the grant was void by the death of tenant in tail , and the issue had possession in law , and might have distrained , and though he determined his election , yet it shall not prejudice his wife . if the husband disagrees to a remainder , the wife shall not be endowed , otherwise to a dissent . if a rent charge is granted , the grantee dies , the heir cannot prevent the wife of her dower by bringing his writ of annuity . the son endows his wise ex assensu patris , the son is attainted . if she shall retain her dower ? some think she shall not ; for she claims from the son , and ne unques accouple in loyall matrimony is a good plea. if tenant for life surrrenders upon condition , and the lessor marries and dies , the wife is endowed against the heir , the lessee enters for the condition broken , the wife shall not have the reversion ; for the freehold which was the wives title is taken away by the entry . if the grandmother recovers dower against the mother , she hath taken away all the estate of the mother ; for she comes in upon an eigne title . but otherwise if the father had been infeoffed . so if the lessor disseiseth his tenant for life , and marries , and dies , and the wife is endowed by the heir , the lessee enters &c. and if lessee for life had died before the wife had been endowed , she shall not be , endowed ; for the heir was remitted , or if she had been endowed , and the lessee had died , the heir shall out her . if the mother recovers dower against the son , & the grandmother recovers dower against the mother , and dies , the son shal enter and not the mother . but if the dower of the mother had been by assignment of the heir , it had been otherwise . for he shal be concluded by his own assignment , quaere ? for some think the reversion is not taken away from the mother in casu penultimo . if a feoffment be made to a. to the use of b. the wife of a. shall be endowed . a. marries and fells his land , his wife arrives at her age of nine years , the husband dies , she shall be endowed ; though the husband had no possession when she was nine years old : for if the husband aliens his land , and after the wife is attainted and pardoned , the husband dies , she shall recover her dower . if a woman elopes , the husband aliens his land , and after they are reconciled , she shall have her dower ; for in these cases the title of dower is not consummate until the death of the husband . but if a man marries an alien , and then sells his land , and she is endenized , and the husband dies , she shall not have her dower . if a tenancy escheats , the wife of the lord shall not be endowed of the seignory . a woman intitled to have dower , disseiseth the tenant , and she is disseised by another , to whom the disseisee releaseth , she shall not have her dower ; for her dower was suspended in the possession of the disseisor as well as if it had been in her own possession ; for the disseisor is in as the woman was , and though her dower should have been revived if the disseisee had entred ; yet this release doth not amount to an entry and feoffment . if land be given to a. and his heirs males as long as he hath issue female of his body , a. dyes having a daughter , the wife is endowed , and the daughter dies without issue , the wife loseth her dower ; for there is a difference between a condition in deed , and in law ; for if the issue of tenant in tail dies without issue ; yet his wife shall keep her dower ; for it is a condition in law. and yet if an estate tail be made upon condition , that if the donee dies without issue , that it shall be lawful for the donor to re-enter , the wife of the donee shall not lose her dower ; for the condition does not take effect untill the estate be determined by the condition in law , upon which determination she is endowable . a. seised in fee grants a rent charge , and aliens , and takes an estate in fee-simple , or in tail , and dies seised , the wife recovers in dower , and then she surmises that her husband died seised , and prays a writ of enquiry of damages , . h. . . she shall hold it charged ; for she hath admitted her self dowable of the second estate . a. has a wife , and is seised of four acres , and makes a feofment of three of the acres with warranty , and dies , the wife brings her writ of dower against the feoffee , and he vouches the heir . now if the wife may stop the judgement , viz. that she shall not recover immediately against the heir is the question ; for then she hath lost her dower of the fourth acre , as some think she hath , because it was her own folly that she did first recover her dower of that . election . if a rent be granted in fee , and the grantee grants it over for yeares , the grantee for years hath no remedy , if it be denied him ; for he shall not have a writ of annuity ; for the election is given only to the first grantee and his heirs , and the election runs only in privity . if two acres are given to a. habendum , the one in fee , and the other for life , and a. grants both over , viz. the one in fee , and the other for his own life . if the second feoffee shall have election ? if a. had committed wast in both , or had made a feoffment of both , the lessor might have entred into which he had pleased . if i give two acres , the one in fee , the other for life , and the donee dies without heir , quaere , if the lord shall have election ? if a lease be made of two acres , the remainder of one to a. and of the other to b. and makes no certain description of either . he who first enters after the death of tenant for life , shall have the election . if a lease be made of two acres , habendum the one in fee , and the other for life , reserving a rent , quaere how the lord shall avow ? but his executor hath no remedy by the statute of h. . if a. grants to another one of his horses , the grantee dies before his election , his executor shall choose ; but yet there was no property in the grantee before election . if two acres are granted , the one in tail , and the other in fee , the heir of the donee shall make his election . if twenty shillings , or a robe is yearly granted at the feast of easter , at the day , or before the day , the grantee hath election . if it had been by obligation , the obligor shall have the election after the day . but if one grants to another twenty loads of wood , or twenty oaks yearly at the day or after , the election is in the grantee , for it lies in prender , so that there is a a difference betwixt a thing in payment and in prender . e. . . if a lease for life be made , reserving a rent , or a robe at the day , it is in election of the lessee , but after in the lessors . a reversion is granted to one for life , and before atturnment it is granted to him in fee , the grantee may choose his estate . if an acre is given habendum in fee , or in tail , the donee shall choose . if one be bound , or covenants to infeoffe b. of the mannor of d. or s. the obligor , &c. hath the election ; for he is the first agent . but if i give my black horse , or white horse , there the donee hath the election ; for there he is the first agent . but otherwise if the words had been that i should deliver also . if i infeoffe a. and b. and warrant the land to the one or the other , there is no election given to either , and therefore void . but if one be bound to me to pay to a. or b. there the obligor hath the election ; for he is the first agent , but in the other case it ought first to be demanded . a. gives two acres , habend . the one for life , the other in fee , reserving a rent or a robe , and does not distinguish which he shall have for life , and which in fee. b. makes a feoffment of both , the rent is behind . a. distrains in one only , and makes an avowry for the robe in that acre . quere bien . if a rent be issuing out of two acres , the tenant grants one to another , the grantee may choose in which he will distrain for all . a. disseises b. of twenty acres in . c. b. brings a writ of entry sur disseisin in ten acres , and recovers , and comes upon the land , and enters into one acre in the name of all he recovered , and thereof presently infeoffs d. who enters into the other nine acres , a. brings an assize for those nine acres , and it is maintainable ; for by the entry of b. into one acre in the name of all he recovered , nothing vested in him but that acre ; for it was a determination of his election which nine acres he would have , for it was incertain , and then nothing passed by the feoffment but that one acre , for the feoffee being a stranger shall not make election , which runs in privity . emblements . a woman hath title to have dower of three acres , and after the heir sows one of the acres , and she hath that acre assigned to her in dower . quaere if she shal have the emblements ; for , no folly can be imputed to the heir ; for the possession was cast upon him by the law , and when he did sow the land it was uncertain to him whether ever the wife would recover her dower , neither could he guesse which acre would be assigned her in dower . and the heir shall take advantage of this incertainty . as if the condition be performed by the mortgagor , yet the mortgagee shall have the emblements . if a man devise that his executors shall sell his land , and before the sale the heir sows the land , and then the executors sell it , yet the heir shall have the emblements , h. . . if the heir sows the land , and is disseised before severance , and the disseisor endows the wife of the father . some think the heir shall not have the emblements ; for she is supposed to be in , in the post by the disseisor , quaere . entry . grandfather , father , and son. the father disseiseth the grandfather and dies , the son endows the mother , the grandfather dies , the son may enter upon the mother ; for he hath a new right descended to him from the grandfather , for the grandfather might have entred upon the mother , so shall his heir . but if there be great grandfather , grandfather , father , and son , and the grandfather disseises the great grandfather , and the father dies , and the son endows the wife of the father , and the great grandfather dies , the son shall not out the tenant in dower ; for the great grandfather could not enter by reason of the descent , no more can his heir . if a disseisor makes a lease for life , the remainder in fee , and the disseisee purchaseth the remainder , and grants it over , he cannot enter upon the lessee for life , for then he should defear his own grant. a feoffment is made , upon condition to re-infeoffe , the feoffee makes a feoffment to his use . if the feoffor may enter without request ? if a. makes a feoffment , reserving a rent , and if it be behind a re-entry , after he releaseth the rent when he hath title or entry , he cannot enter after , or if he granted the rent over after his title of entry . the eldest son cannot enter where the reversion is descended to the youngest by the custom . a seignory is granted in tail , the tenant aliens in mortmain , the grantee dies within the year without issue , the donor shall enter , as well as he in remainder ; for there is a privity of estate . if two acres descend to a. and a stranger abates into one , and a. enters into the other in the name of both , that shall not gain the possession of the other . but otherwise if he had entred into that acre wherein the abatement was in the name of both . tenant for life of a seignory , a tenancy escheats , a stranger intrudes , tenant for life dies before entry , he in reversion may enter , as upon the disseisor of his tenant , but if he dye and his heir in by descent , he cannot enter . after a discent the disseisee abates , the wife of the disseisor recovers dower by confession , if the disseisee may enter ? a lease for life is made , rendring a rent , with a re-entry , for default of payment , the lessor hath cause of entry , the lessee is disseised , and a discent cast , the lessee dies , the lessor may enter ; for the land was alwayes recontinuable by entry . if lessee for years upon condition be outed after the term , and a dissent cast , the lessor shall enter for breach of the condition . escheat . if lessee for yeares makes a feoffment , and the lessor dies without heir , the lord shall not enter for the escheat ; for it is a good feoffment against him . a. infeoffs b. so long as paul's steeple shall stand . b. dies without heir , if the land shall escheat ? vide attainder & bastard . estate . if a lease be made so long as a. and b. shall be justices , if one of them be removed , the estate is determined ; for the time was in the copulative , and a collaterall determination . but if it had been during their lives , and one of them had died , the estate had continued . a. hath issue a son and a daughter , land is given to the daughter , and to her heirs females of the body of the father begotten , she hath not estate tail but for life only . inst . if a lease be made to a dean and chapter for their lives , they shall have a fee ; for they never die . if a rent of twenty shillings a year be granted until the grantee shall receive twenty pound , the grantee hath an estate but for twenty years ; for it is certain . so if it had been granted untill a. shall arive at his full age , he takes but for years . if land of twenty shillings a year value be granted until he shall receive twenty pounds out of the issue and profits , and livery be made , he takes an estate for life , by reason of the uncertainty of the profits . if a. makes a lease for life , reserving a rent , and if it be behind , that he shall enter and retain , til he hath received the rent out of the profits of the land , all the estate of the lessee is defeated . e. . . if a. hath two daughters , and the eldest gives land to the youngest , and to the heirs of the body of the father begotten , there passeth but an estate for life ; for the donor is one of the heirs , and it cannot be an estate tail in her self of her own making , and it cannot inure to the other ; for she is not heir . but if it had been given to the youngest , the eldest being born out of the realm , it shall go to him . estopple . if a praecipe be brought against the father of the sons land , and he loseth , and the son after the decease of the father brings a writ of error to reverse the recovery , and judgement is affirmed , the recoveror may enter upon the son ; for by bringing his writ of error , he is estopped to say , that his father was not seised . if an infant delivers a deed which bears date two years after , and at the end of the two years he is of full age , he shall not be estopped to shew the delivery before the date , neither shall a fem covert . husband and wife seised , and to the heirs of the husband , the husband makes a gift in tail , the wife recovers against the donee in a cui in vita , supposing that she hath a fee , and dies , and the donee dies , and the issue of the husband and wife brings a forme●on in reverter and though he was heir to the wife , he shall be estopped to say , that he had a lesser estate than in fee , yet the issue , who claims by the husband shall not be estopped . vide dower . estover . a. seised of an house on the part of his mother , and estovers are granted to him in fee , and he dies without issue , the estovers are extinct . if there be two disseisors of a house , and they have estovers granted to them to be imploied in the same house , and the disseisee releaseth to one , the estovers remain for part . if one hath estovers in certain in ten acres of wood , and five of them descend to him , he shall not take the whole out of the residue . exchange . if a. exchanges twenty acres with b. for ten of equall value b. is impleaded , and loseth ten acres , vouching a. and recovering in value , she shall have all the ten acres again which he gave to a. and retain the ten acres residue without warranty for the folly of a. if a. exchangeth land with b. in fee , who infeoffe a stranger , one enters into the land of a. by title paramount , he cannot enter upon the feoffee of b ; for the privity of the exchange is determined by the feofment . if a. and b. exchange land , and a. makes a lease for life , b. is impleaded , and recovers in a warrantia chartae , and hath execution of other land , the tenant for life dies , a. enters , upon whom a stranger enters by title paramount , he hath no remedy for the land rendred in value ; for that doth not go in privity as the exchange doth . if a. and b. exchange land , and a. dies in a praecipe against b. he vouches the heir of a. who enters into warranty , and cannot bar the demandant , by which he recovers ; and b. over in value , the demandant enters , if b. may enter upon the heir , or is chased to his habere facias ad valentiam ? some think he may enter ; for a descent is not material against a condition , as this is ; for if there had been an express condition , he might have entred , and so he may now . but if part of the land exchanged had been recovered against b. he could not have entred , for he shall not be his own judge of the portion . but where all is recovered , the whole exchange is avoided , and therefore he may enter . if one exchangee makes a feofment of his part , the other shall not enter upon the feoffee , for the condition is determined and dissolved . but quaere , if after the feofment the other may vouch ? if two acres are exchanged for a mannor , and a stranger enters by title paramount into one acre , he shall enter into all the mannor , for it is an entire thing . and quaere if he shall retain the other acre ? execution . if tenant in tail with a remainder over with vvarranty recovers in value , and dies before execution , he in remainder shall sue execution ; because he is privy . if tenant in tail dies without issue . if a man recovers in value land in burrough english . quaere , if the youngest son shall sue execution ? but if the issue in tail recovers in a formedon , and dies without issue before execution , the donor cannot enter , or have execution . if tenant in tail discontinues , and dies leaving a daughter , his wife privement enseint with a son , the daughter recovers in a formedon and dies , the son born cannot enter , or have execution . but if the issue in tail recovers against the discontinuee , and after is attainted of felony , his issue shall enter , or sue execution , for he is privy in estate . tenant in tail recovers in value by voucher of the donor , and is attainted of felony , his issue shall not have execution . if the son hath the land of the father , and of another in execution upon a statute , and the land descend from the father to the son , the whole execution is discharged . in judgement for debt the party shall not have execution , but of that land only which he had at the time of the judgement , and not at the time of the purchase of the writ . but in debt against the heir , if he aliens hanging the writ , it shall be liable to the execution , although the alienation was before the judgement ; for the action was conceived against him in consideration of the land ; but in the first case it was in respect of the person . the conisor of a statute is in execution , and his land also , the conisee releases to him all debts , the execution is discharged by this release ; for the debt was in being , until it was levied of the profits , but though the execution be discharged by the party , yet until it be discharged in fact , if the goaler had suffered him to go at large , he could not have said but that he was in execution . executors . if a lease for years be made , reserving a rent upon condition of re-entry for not payment . if the executor breaks the condition , so that the lessor re-enters , it is a devastavit in them , otherwise if the condition were performable on the part of the lessor , br. extinguishment . for every voluntary act of the executor , by which , the goods of the testator are consumed without any benefit to the testator , is a devastavit . but if an executor having such a term as executor purchaseth the reversion , that is not a devastavit ; for the term , as to assetts is in being still . if a man mortgages his term and dies , and his executors do not redeem it ; some think it is a devastavit . if they have assetts in their hands wherewith to redeem it , and the term be better than the price of the redemption , so if an executor sells a term under the value , by which the creditors lose their debts , this , some think , is a devastavit . but if a man be possest of a term , and devises it to his executors to be sold meliori modo quo possunt for payment of his debts , they sell it under the value , that is no devastavit ; for it may be it was the best price they could get . if husband and wife make a lease of the wives land , reserving a rent , the husband distreins and avows , and has a return and dies , the cattle are discharged ; for the executors cannot have them ; for they are but as a pledge , and being the executors cannot pretend any right to the duty , they cannot detain the pledge ; for the wife is to have the duty . vide h. . . if a rent charge be granted in fee , the grantee dies without heir , the executors shall not have an action of debt for the arrerages . but if the grantee had brought a writ of annuity , and recovered , then the executors should have an action of debt for the arrerages ; for if the inheritance of a rent determins , the arrerages are extinct , otherwise of an annuity . if a grant be made of a robe , or twenty shillings , and the grantee dies before election , his executors cannot demand the arrears . the executors of a grantee for years of a rent charge shall have election , either to have an action of debt , or annuity . if a man be bound in twenty pound , and his executors have but ten pound , an action of debt lies against the heir for all ; 〈◊〉 if he chooseth the executor he cannot sue the heir for the remnant . if an obligor in twenty pound hath goods to the value of ten pounds only , and makes the obligee his executor , he shall retain that as parcell of the duty , and for the rest bring his action against the heir ; for it is by the act of the law that the duty is apporcioned . if a. by deed gives the mannor of d. with all the woods to b. if livery be not made , the executors shall have the woods . if there be two wills , and the executor of the last refuseth before the ordinary , yet the first is revoked by the intent of the testator . if the executor releases a duty of the testator , this is so much an administration , so that he cannot after refuse , but yet if he doth after avoid the release , he may refuse . a lease for life is made , rendring a rent at mich : and the annunc : the land is sowen at mich : and the lessee dies , if the executors shall have the land untill the corn be ripe , if they ought to pay the rent ? some think the lessor may have an action upon the case ; for the executors have the profits of the land , &c. and no fault in the lessor : as if a gift in tail be made , reserving thirty shillings , and the donee dies without issue and the wife is endowed , she shall pay ten shilshillings , and yet the estate is determined , but she claims under the estate of the husband . a man makes a lease for life reserving a rent , upon condition that if the rent be behind , that the lessor shall enter , and retain untill he be satisfied of the arrears , he enters and dies , his executors shall not retain ; for the arrears were not chattles at the beginning , and therefore they shall not ●etain the land as a gage , as they shall do for the double value ; for that was a chattle at the beginning . but in the first case the arrears are given to the executors by the statute of h. . yet being the arrears were no chattles at the first , and so not due to them by their own nature , therefore they shall not retain . as in e. . . in rescous there it is said , if the defendant in a replevin avows for a rent due to him and his wife , and upon that he hath a return and dies , the tenant shall have his cattle back again without any agreement , because the executors could not have the distresse , being they could not have the rent , but the wife was to have it . if an executor delivers a legacy upon condition , it is no good delivery . the debtee and another are executors to the debtor : the debtee recovers against the other , and after administers with the other , and then sues execution by scire facias : if the other shall have an audita querela ? and in whose name it shall be sued , or if the property shall be altered in the recoveror ? or if execution be discharged ? but some think that execution cannot be stopt , but the recoveror shall have it to the use of the testator . vide condition & debt . extinguishment . the tenant holds ten acres by ten pence , and makes a feofment of one , the lord grants the rent , reserving the fealty , the tenant atturns , the grantee releaseth all his right in the land to the tenant , yet he shall have one penny . if the tenant deviseth , that the lord shall make a feoffment of the tenancy , which is done , yet the seignory is not extinct , no more than the rent charge shall be where the grantee makes livery as atturny to the tenant of the land , because he doth it in auter droit . a rent charge is granted upon condition , the grantor makes a feofment , the condition is broke , the rent is arrear , if the condition be extinct by the feoffment ; for the grantor cannot have it in the same manner , &c. but if the condition had been that the rent shall cease upon the non performance , there the feoffee shall take advantage of it ; for the rent doth ipso facto extinguish , as a lease for years upon condition to be void . the lord having the ward of the mesne enters into the tenancy for mortmain , the seignory and mesnalty are extinct . if the tenant infeoffes the lord to the use of a. or if the lord infeoffs the tenant of the mannor to the use of a. if the seignory be extinct ? note the case . vide condition , release , estovers , arrerages . feoffment . tenant for life , and he in the reversion join in a feoffment of all their land and tenements lying in the town where the land lies that is in lease , and make a letter of atturny to make livery , this is a grant of the estate for life , and also of the reversion . but if they had made a feoffment of the land of the lessee only , then it will be the feofment of tenant for life , and the confirmation of him in remainder . if a man makes a feoffment to a stranger and to his own wife , and makes livery to the stranger in the name of both , it will be good to the stranger , and void as to the wife . tenant for life infeoffs the wife of him in reversion , with a letter of atturny to the lessor to deliver seisin , who does it . quaere if he be seised in his own or his wives right ? for he is remitted by the forfeiture . if tenant in tail infeoffs the wife of the donor , that is a discontinuance . a feoffment is made by one deed in fee , and by another in tail to the same person , and livery made according to both deeds , it shall inure by moities ; for otherwise the livery cannot inure upon each deed : for if he should have all the land in tail , the remainder in fee , then the livery shall have only operation upon the estate tail , and the other shall be but a confirmation , and then it shall not inure upon both the deeds , but upon one . and if livery had been made only upon the deed in tail after the delivery of both deeds there should be tenant in tail , the remainder in fee. if one jointenant enfeoffs his companion and a stranger , the stranger takes all . if tenant in tail enfeoffs the donor , he doth not give him the fee. vide extinguishment . fem covert . a man conveyes land to a fem sole upon condition , that she payes a sum or money by a day , she marries , and the money is not paid , whereby her estate is defeated , this will binde her after her husbands death . but if the fem be tenant for life , and the husband makes a feofment , and the lessor enters , yet the wife shall have the land after the death of her husband ; for it is but a condition in law : but if the condition be by statute , as in a cessavit or wast , where there is a recovery , there it will bind her after the death of her husband . but if the condition be given by statute and no recovery , as in mortmain , then the wife shall not be bound . some conditions in law shall bind the wife if the husband breaks them , as a condition annext to the grant of a parke , an office , or a liberty . if a fem covert delivers an obligation bearing date two years after , and at the end of the two years her husband is dead , she shall not be estopt to shew that the delivery was before the date . fem sole . if a fem sole tenant in a praecipe marries , pending the writ , all the rest of the pleadings and process shall be against the wife only . if a fem sole at mich : makes a writing dated at christmas , and before christmas she marries and the husband dies , she may say that at the time of the date she was a fem covert , and he shall not aver the delivery before . fine . tenant in tail levies a fine , and takes back an estate in fee upon condition , and dies , the heir enters , and is remitted , the proclamations passe ; if that shall take away the remitter , and if the condition remain ? if the wife levy a fine as a fem sole , and the husband enters , all the inheritance is revoked . forfeiture . lessee for years is received by the statute of glocester , a stranger recovers against him in a praecipe , and confirms the estate of the lessee for life , the lessor avoids the recovery by error , and enters upon the lessee , some think he cannot . a. makes a lease for life and dies , leaving his wife enseint with a son , the tenant makes a feoffment , the son is born , if he shall enter for the forfeiture . quaere ? a lease is made upon condition , that if the lessee commits wast , that his estate shall cease , if a stranger commits wast it is no forfeiture of his lease . if tenant for life infeoffs the wife of the lessor with a letter of atturney to the lessor to deliver seisin , which is done accordingly . quaere , if this be a forfeiture ? some think it is . a lease is made to e. and f. for their lives , f. grants to a stranger for the life of e. that is a forfeiture of his estate ; for he had not an estate for the life of e. but in respect of the jointure , and an estate for the life of e. doth not passe from the lessor in the moity , but upon condition in law , that the jointure remains , and now he hath given it for the life of e. absolutely : but if both of them had made a lease for the life of e. that had not been a forfeiture , causa patet . if a lease for life be made upon condition , that the lessee shall infeoffe a. which is done , the lessor may enter for breach of the condition in law , scilicet the forfeiture . tenant for life grants over his estate upon condition after title of entry , the grantee makes a feoffment , the lessor enters for the forfeiture , some think the lessor may enter upon him for the title of entry ; for the forfeiture is by the common law , which shall not destroy another title comming in respect of the estate . land is given to a man and a fem sole , and to the woman in speciall tail , they marry and have issue , the husband aliens a moity and dies , the issue dies without issue , if the wife may enter into the moity for the forfeiture ? for now she is tenant in tayl after possibility , in which case she hath but a freehold in the remainder , otherwise if her estate had been in tail . land is devised to a. for life , the remainder to him that shall be his first son , the remainder in fee , a. aliens in fee , if he in the remainder may enter for the forfeiture . quaere ? frankmarriage . three jointenants , one of them gives his part with his daughter in frankmarriage to one of his companions , and by the same deed releaseth to them in frankmarriage , and makes livery , some think that is a good gift in frankmarriage for this reason , that although one jointenant cannot infeoffe his companion , yet his companion and another he may , and the livery made to the other shall vest the land in both , and that is for the advantage of the third , as in gascoigues case , h. . . it was not a surrender for the advantage of the third . nor in h . . for the advantage of the husband , so it shall not be void here for the advantage of the third person . but others think the contrary , because the husband cannot take it immediately from his companion , and for him it is void , and good for his wife . as if a man makes a feoffment to a stranger & his own wife , if livery be made to the stranger it will operate but to the benefit of the stranger , and will be void for the wife . so here it is good for the wife , & the release is good for the husband . further , if one jointenant cannot infeoffe his companion , as it is holden in e. . then it will inure severally , viz. to his companion as a release , and to his wife for life ; for if it be no good frankmarriage , then , 't is the estate for life , and so it was resolved between webb & porter in eliz. and then they take in common , and severally and no frankmarriage . grant. tenant in tail holds by a rent , the donor grants the services , nothing passeth ; for the rent cannot passe but as a rent service . lord and tenant by rent and fealty , the lord grants the services of the tenant saving the fealty . nothing passes by that grant ; for the rent cannot pass but as a rent service ; for a rent charge ; or rent seck will not pass by those words . the same words cannot be a grant and a confirmation too . if a disseisor grants a rent charge to the disseisee and he grants it over , and after re-enters , he shall hold it discharged , causa qua supra . if the lord marries the tenant , or by any means hath as high an estate in the tenancy as he hath in the seignory , he cannot grant the seignory over . if the tenant be in ward , or disclaims , the lord may grant over the seignory . but if the tenant be tenant for life of the seignory , and the seignory is granted to him in fee , he cannot grant it over ; for he never had possession of it . but if he had possession , and it is suspended by taking an estate for life , yet he may grant it over . if the parson and ordinary grant a rent charge to the patron , the successor shall avoid it ; for the assent of the patron ought to be expresse , where the successor shall be bound . but if they had all granted it to a. who had granted it to the patron , that had been good . if a rent be granted for life , and by another deed it is granted , that it shall be lawfull for the grantee and his heirs to distrain for the same rent , it must be a rent of the same value ; for the rent determins by his death . so if the king grants to the mayor and commonalty of d. the same liberties which the mayor , &c. of l. hath . it shall be intended such liberties . a. makes a lease for life , reserving the first four years a rose , and after a yearly rent of twenty shillings , the lessor grants the twenty shillings to commence after the end of the four years , the grant is void ; for it is all but one rent , and then if the grant should be good the grantor should have a term in the rose for four years , whereas before it was a freehold ; and then it is no more but that a man hath a rent in fee , and grants it after four years , that grant is void , otherwise of a rent created de novo . h. . . a. seised of a rent in fee grants it to one for twenty years from the time of the atturnment of the tenant , and dies , the tenant atturns , if this be a good grant. quaere ? gavel kind . a lord in gavel kind hath two sons , the tenant aliens in mortmain , the lord dies , the eldest son enters into both parts , the seignory shall descend as the tenancy . but now the land ( admitting a licence had been obtained ) being aliened in mortmain , the custom is extinct . a. seised of gavel kind land is impleaded , and vouches , the vouchee enters into warranty , the tenant dies , having two sons , if the eldest alone shall sue execution . quaere ? habendum . a rent is granted to two habendum , to the one until he be married , and to the other until he is advanced to ten pounds per annum . quaere , if they be tenants in common or jointenants , and when one performs the condition , if the other shall have all ? so if a rent is granted to two habendum , to the one for his life , and to the other for his life , if they be tenants in common ? vide baron & fem. harriot . a fem lessee for life by the custome of a mannor marries by license ; the husband dies , the lord shall not have a harriot , for there is no change of his tenant . so if land be let to husband and wife for their lives , and the husband dies , the lord shall not have harriot for the same reason . if a fem lessee for life marries , and she dies , the lord shall not have a harriot , for she had no chattles : and the custome may be reasonable , if in such case the husband dies where the wife is seised , that he shall pay a harriot , for if the wife dies , there is none due . if the tenant devises all his goods , yet the lord shall have his harriot , for the devise takes effect after the death . if a man hath two horses at the time of his death , one is a young one , and the other worth forty shillings , and the lord doth not seise until two years after the death of the tenant , and the youngest becomes worth five pounds , the lord shall not have him ; for he had a property presently by the death of the tenant in the other . a cow hath three calves before the seisure of the lord , the lord may seise them with the cow. quaere . husband and wife and the son purchase to them and to the heirs of the body of the son begotten , the husband dies , the lord shall not have a harriot . e. . husband and wife purchase land , to them and to the heirs of the husband , who dies , the lord shall not have a harriot . heir . a rent is granted to commence after the death of the grantee the heir shall take it by descent . a. makes a feossment upon condition , and if it be broke , that it shall be lawfull for him to reenter during his life , he shall enter by expresse reservation , and after his death his heir shall enter by the provision of the law. if an encroachment of services be made upon the husband , if the wife be endowed she shall not be contributory , but the heir cannot avoid it . a seignory is granted for years , the rent being behind , the tenant dies , the years expire , if the grantee shall have debt against the heir of the tenant for the rent due before and after the death of the tenant ? some say the heir shall not be charged , unless the tenant had bound himself and his heirs by express words , and it shall not be esteemed the proper debt of the heir . if a. hath a daughter , who hath a son , a remainder is limited to the right heirs females of the body of a. the son shall take the remainder , for he is a purchaser ; but he shall not have the land by descent which was given to a. and the heirs females of his body , h. . . p. newton . lessee for life the remainder to the right heirs of a. who hath a son , who dies without issue , the land shall descend to the heirs on the part of the father , for the son takes by purchase , and as heir to a. so that the heir of a. must take it . if land be given to a man and to his heirs on the part of his mother begotten , and his mother is dead , and he dies without issue , the heir on the part of his father shall take . quaere ? if a man makes a gift in tail of land on the part of his mother , reserving a rent , and dies without issue , the heir on the part of the mother shall have the rent as incident to the reversion . if a man binds himself and his heirs in twenty pounds and dies , and his executors have ten pounds onely , an action of debt lies against the heir for all ; for if the creditor makes choice of the executor he cannot have any remedy against the heir for the rest . if the obligor makes the obligee his executor , and leaves ten pound and the debt was twenty , he may detain that and bring an action of debt against the heir for the rest ; for it is a apporcioned by the act in law. if land be given to one and the heirs males of his body , the remainder to the heirs females of his body , the daughter of the son shall not have the land. if land be given to one , and the heirs males of his body , and to the heirs females of his body , if he hath issue male and female , they shall take by moities by descent severally . if a woman hath three sons by severall husbands , and land is given to her and to the heirs of her body by the first and second husband begotten , the two sons shall take severally by moities , and yet the mother had an estate . a. having two daughters , one is attainted of felony , a remainder is limited to the heirs of a. the other shall take nothing . if a remainder be limited to the heirs of b. who hath a son who is attainted , the remainder is void , and the fee rests in lessor . land is given to a. for life , the remainder to b. for life , the remainder to the heirs of a. who dies , b. enters and dies , a stranger abates , the heir of a. shall have a writ of right upon the possession of a. and if land be given to c. and d. and to the heirs of c. who dies , and a recovery is had against d. and he dies , the heir of c. shall have a writ of right of all the land. a. binds himself and his heirs in twenty pounds , and dies , the executors have assetts , the obligee releaseth to the heir all actions of debt , the executors pay the assetts to other creditors , the obligee may have an action of debt against the heir ; for at the time of the release he was not intitled to have an action against him , but if the executors or the heir had no assetts at the time of the release , and after the heir recovers assetts , the release will bar him . if a. makes a feoffment of land which he hath on the part of his mother , to the use of himself and his heirs , it shall be to the use of the heirs on the part of his father , if he dies without issue . a fem sole hath a rent seck , and marries , the tenant of the land grants to the husband and his heirs to distrain for the rent , the husband and wife die without issue , the distress is extinct ; for the heirs of the husband are onely privy to distrain . a condition does descend upon the heir at common law. incertainty . if one inseoffs another of twenty acres , viz. of one to the use of a. and does not shew of which acre , a. takes nothing by the feoffment ; for the possession cannot be executed ; for it was not certain which are passed to a. and a. cannot have election , for he is not privy . if a reversion be granted to one , and after to another , and the tenant atturns to both , neither of them shall take for the incertainty . if land be given to a man and a woman upon condition , that which of them first marries shall have in fee , and they intermarry , neither of them shall have fee. if the reversion be granted of black acre , or of white acre , if atturnment be good . quaere for the incertainty . a. gives two acres to b. habend . the one for life , the other in fee without deed , rendring a robe or a rent , and doth not shew which he shall have for life . a. lets two acres , rendring a rent on condition , to be performed by the lessee , that he shall have fee in one acre , not shewing which , and makes livery of both . quaere . infant . if an infant inseoffs two , and at his full age releaseth to one , it inures to both . if an infant be forejudged he is bound for ever , but if he makes a feoffment of a mannor , and the feoffee is forejudged , yet the infant may enter into the mannor , and distrain for the mesnalty , the reason is , because in the first case he was party to the record , and in the last case the forejudger was against the feoffee , who had a deseasible title . a recovery in wast against an infant will bind him , but so it will not against his grantee ; for he had a title to defeat his estate , so in a cessavit . conditions and forfeitures that will bind a fem covert will bind an infant . if an infant makes livery within view he shall not have an assize if the feoffee enters ; for it is more than a livery in law. if an infant disseisor makes a feoffment , and a dissent is cast , and the disseisee releaseth to the heir , yet the infant shall have a dum fuit infra aetatem ; for he demands the possession to which he had more right than the disseisee had . as if the heir , who is in by descent brings an assize against his disseisor , it is no plea for him to plead the release of the disseisee , causa qua supra . if a reversion be granted to an infant , and the tenant atturns at his full age , yet he may disagree ; for the grant which was the principal was in his minority . if an infant makes a lease to commence in futuro , and after makes a feoffment , being either at full age , or under age , the feoffee shall not avoid the lease . if an infant delivers a deed bearing date two years after , and at the end of the two years he is of full age , he shall not be estopped to shew the delivery before the date . if a fem tenant in tail marries an infant , who aliens and dies , the wife cannot enter upon the feoffee ; for she is not privy in blood to the infant , and privy in estate onely will not do . as if there be two jointenants , and one is a minor and they are disseised , and a dissent cast , the infant dies , the survivor cannot enter as the infant might . neither shall a lord by escheat or donor take advantage of infancy . if land be given to an infant and his heirs females , and he hath a son and a daughter , and aliens and dies , his daughter cannot enter ; for she is but a speciall heir , quoad hoc . in the principall case if the wife had been tenant in fee simple , the heir of the infant shall not enter upon his alienation , as litt. says ; for the wife had the right , and a title of entry which was in right cannot descend to the heir of the husband : but in this case , being the husband hath given a fee simple , and had but an estate in tail , in right of his wife , so that more is given than he had in right of his wife , makes this case more doubtfull than litts . but yet it seems the heir may not enter ; for he cannot have the same estate which his ancestor had , and the right of the estate tail survives to the wife ; for if land be given to an infant in tail , who aliens and dies without issue , his collateral heir cannot enter ; for the estate is determined which the infant had at the time of the gift ; for if an infant be tenant par auter vye , and aliens , and cesty que vye dies , the infant himself cannot enter , e. . . but in the principall case , if the infant had made a gift in tail his issue might have entred by reason of the reversion , but otherwise where no estate descends to the heir . if tenant in tail to him and his heirs females aliens and dies , leaving issue a son and a daughter , the son shall not enter , no more shall the daughter , so of the youngest son in borough english . if tenant in tail infeoffs within age , and after is attainted of felony , his issue shall not enter , for he is disabled in blood . if an infant be disseised , and a descent cast during non-age , and after he comes of full age , the heir of the disseisor dies before his entry ; the infant may enter , for the heir was never possest ; for he had but a possession in law. joinder in action . if two parceners dye before partition , and a stranger abates , the issues shall not join in a mortdancester , for the stat. of gloucester ca. . is only when one right descends to divers , but every issue claims her right from and by her mother , so that severall rights descended to them , and so out of the stat. and is as it was at the common law , and therefore if parceners are disseised , their issues shall not join in a writ of entry , but shall have severall writs in respect of their severall rights , as they shall have severall formedons . if one hath cause to have a writ of ayel , another of besayel they shall not join ; for they have cause to have severall writts ; but where one is intitled to have a writ of mortdancester , and another ayel , or besayel , there they shall join . but if none of them may have an assize , then there is no remedy by the statute , e. . . e. . . e. . . if i recover in an assize , and after i am disseised by the same person and another , i shall not have a redisseisin ; for it must be against the same person . if two parceners make partition upon record of an advowson , the eldest presents first , and after the youngest , and the eldest and a stranger present in the turn of the youngest , the youngest shall not have a scire facias against them ; for the stat. of westm . . does give it against those that were parties to the record , but she may have it against her sister : but in the first case a redisseisin doth not lie against the redisseisor ; for he may plead jointenancy , but in the last case it is no plea that another presented with her ; for she may have a quare impedit against both , or several actions , as a man may in trespasse made by two . so if the lord distrain his tenant , and he sues a replevin , and after the lord distrains the beast of a stranger and another beast of his tenant , the tenant shall have a recaption . but if the lord had distrained again the beasts which his tenant and the stranger had in common , there he could not , because for the last distress they ought to joyn , and the stranger cannot join in the recaption . if a stranger makes a rescous to the lord , the lord shall not have an assize against him alone without the tenant , because he cannot be said tenant of the rent , but against the pernor he may have an assize only . and if there be lord , mesne , and tenant , and the tenant makes rescous to the lord , ●an assize is not maintainable only against the tenant . and if there be lord , two jointenants , mesnes , and tenant , and one of the mesnes , and the tenant makes rescous the lord shall not have an assize against one only , but he ought to name both the mesnes . two fems jointenants in fee have husbands , who make severall feofments of their moities , and die , the wives shall not join in one writ of right ; for their right was discontinued at several times . so if one jointenant disseiseth the other and makes a feofment within age , and dies ; or if two infants jointenants make several feofments , and one dies , the other hath no remedy for the moity ; but otherwise if wrong had been made to them at one time , though severall wayes . if there be issue of two parceners , one dies , and the other endows the wife , one action shall be maintained against both , v. e. . . against tenant by the curtesie , and the other parcener , e. . a scire facias brought against tenant by the curtesie , and the other parcener , and good . land is given to four , habendum , one moity to the first two , the other moity to the other two , the first two are jointenants with themselves , and tenants in common with the last two , and so è converso , they are jointenants of a moity , and tenants in common of the whole , and two praecipes shall be sued against the four , and by the four , but for the two joint praecipes for and against them . jointenants . two jointenants in fee , one a minor makes a lease for life , he of full age dies , the other recovers a moity in a dum fuit infra , &c. tenant for life dies , the heir of the other jointenant enters , the infant outs him , he brings an assize , some think it is maintainable . for when he brought a dum fuit infra , &c. and recovered a moity , now he defeats the lease for his moity , and makes it , as if the other had made the lease for life only , which makes a severance of the jointure . two jointenants by twelve pence , one grants all that belongs to him upon condition , the lord grants the seignory of one with atturnment , the feoffor enters for breach of the condition , he shall hold by twelve pence , and the other by twelve pence also ; for there is no apporcionment . though one jointenant cannot infeoffe his companion , yet his companion and another he may , and the livery made to the other shall vest the estate in both . if a reversion be granted to tenant for life , and a stranger , the jointure of the fee is severed ; for tenant for life hath a fee in the moity executed . if the reversion be granted to tenant in tail and a stranger , the fee remaines in jointure , and if the husband be tenant for life , and the reversion is granted to him and his wife , the jointure remains ; for there is no moities between them . if a lease be made to two , habendum one moity to one , the other to the other for life , and after a confirmation is made to them and their heirs , the joynture of the fee is severed ; for the confirmation inures according to the nature of the estate . but if the reversion had been granted to them in fee they had been joyntenants ; for the particular estate had been drowned . if there be two tenants in common for life , and the reversion is granted to two jointly , and one purchaseth the estate of one tenant for life , and the other , of the other : the joynture is severed ; for the purchase being at severall times , presently upon each purchase the fee was executed . if a seignory be granted in fee to two , one takes an estate of the tenancy pur auter vye , cesty que vye dies . the jointure remains , because they were jointenants at the beginning . two jointenants for life , and one is bound in a statute , and then grants his estate , yet it is liable to execution , during his life , , but 't is otherwise of an estate for years , for in the one the land is bound by the statute , in the other not . if a recovery be had against one jointenant , his companion shall not avoid it , for the right was bound , but it is otherwise of charges , for the possession is only chargeable . if one jointenant in fee takes a lease by indenture of his moity from a stranger , the survivor shall avoid it . land is given to two and the heirs of their bodies , the remainder to their right heirs , they are not jointenants of the fee. if one jointenant makes a lease for five years , on condition that the lessee doth such an act by a day , he shall have for twenty years , and he dies before the day , the condition is void as to the survivor . if there be two jointenants for life , one makes a lease for years and dies , the survivor shall not avoid it ; for the same estate which he had continues now , and there is no difference if they had a feesimple , some think the contrary ; for the survivor hath not the freehold of his companion , as he hath the fee where they are jointenants in feesimple ; for his estate determins by his death . but all agree that if a. and b. be jointenants for the life of c. and a. makes a lease for life and dies , b. shall not avoid it ; for the estate which he had continues . two jointenants in fee are disseised by the father of one , who dies , and the son enters , he is remitted to all the land , & his companion shall enter with him . and it is not like the case where two are disseised , and a dissent cast during the nonage of one , and he enters , and is remitted for a moity , his companion shall not enter , because that this priviledge is given him in respect of his person more than in respect of the land. neither is it like the case where tenant in tail enfeoffs one daughter , and she dies , she being within age , she is remitted , and yet her companion shall not have advantage of it , because the right was not in them before . if a fem jointenant for years takes husband , and she dies , the survivor shall have all . two jointenants of two acres , the land is confirmed to them in fee , of one acre to the use of one , and of the other to the use of the other , they are severall tenants of the freehold of the acres ; for the freehold is drownd to the confirmation to the use . tenant for life makes a lease for life , the remainder to his lessor and a stranger , they are not jointenants , but the stranger shall take all ; for he could not give a fee to him that had it before . as if tenant in tail infeosfs the donor , or if one jointenant his companion and a stranger , the stranger takes all . if two jointenants makes a lease for life , and one grants his part of the reversion during the life of the lessee , some think this is a severance of the jointure . if one jointenant makes a lease for years , the remainder to the right heirs of a. if the lessor dies in the life of a. the survivor shall have the reversion ; for the lease for yeares was no severance of the jointure , neither could it support the contingent remainder . judgement . in debt upon a recovery in trespass , the plaintiff recovers there where the action was brought , a writ of error depending in b. r. upon trespass , and after the judgement given in debt the judgement in trespass is reversed . quaere what remedy he shall have for the debt recovered ? for it is a recovery in the c. b. which he cannot reverse in another court , and though he might , yet the execution of the debt being past ; he cannot be restored to that by the reversall in the first writ of error in the trespass . lease . if a lease be made for years , and after the lessor makes another lease for life to commence after the end of the term , the second lease is void although there be atturnment ; for a freehold cannot passe out of any person that hath a greater estate , reserving an estate until the freehold commences : but if the lease had been but for years it had been otherwise , and in the mean time the lessee shall have the rent reserved upon the first lease , for a lease for years is nothing but a contract . if a lease be made for ten years to commence at michaelmas , and after he makes a lease for twenty years to commence at easter , the second lease is good for ten yeares , though the first lessee surrenders before ; for it was void for ten years at the first : by the same reason if one makes a lease for life , and after makes a lease for years to commence presently , the second lease is void although the first lessee dies within a year after . if lessee pur auter vye makes a lease for twenty years by indenture , and after purchaseth the reversion in fee , and cesty que vye dies , the lessor may enter upon the lessee although the years continue ; for he hath a new estate and may confesse the conclusion , and avoid it . but if a. lets lands in which he hath nothing , and after purchaseth the land , the lessee may estop him although he had not any estate at the time of the lease , so he cannot confesse the lease and avoid it , as he may in the other case ; for in this case the lease took effect by way of estopple , but in the other case there was an interest conveyed at first . if the patron grants the next avoidance , and after he , the ordinary and incumbent make a lease of the rectory for twenty years , the incumbent of the first grantee shall avoid the lease , but if he dies during the lease , the lessee shall enjoy it during the rest of the years against the successor . and if land be given to husband and wife , and to the heirs of the husband , he makes a lease for years and dies , after the death of the wife the lessee shall enjoy the residue of the years against the heir of the husband ; for the lease did once take effect . but where a lease for life is made , and a lease for years to begin presently , that was void at the beginning against all persons , and therefore can never take effect . if the donor disseiseth the tenant in tail and makes a lease for years , and the tenant in tail dies without issue , the lessee shall have the residue of the term against the donor ; but if tenant in tail makes a lease for years , and the donor confirms , and the issue outs the termor and dies without issue , the lessee shall not enjoy his term ; for in the one case he claims from the donor , and in the other from the donee . if a lease be made to a. for life , and twenty years over , he shall have the years although livery be not made of the land. if a lease be made for the lives of a. and b. and a. dies , the lease shall continue for the life of b. but if two make a lease for sixty years , if they two shall so long live , if either of them die the estate is determined ; for that was not a limitation but a condition . but if a lease be made during the time that a. and b. shall inhabit within london , and one of them dwells in another place , the lease is determined , for it is a collaterall determination . if i licence one to occupy my land until the corn that is growing upon him is ripe , that is a good lease . lessee for twenty years makes a lease for ten years , and then makes a lease to the same lessee for ten years to commence after the determination of the first ten years , the last ten years are not out of the first lessee , and therefore the second lessee shall have the rent which was reserved by the first lessor during the first ten years . quaere . a. makes a lease for twenty years , and then makes another lease for forty years to c. to commence after the expiration of the first lease , and then he makes a lease to the first lessee for thirty years , the lease of c. shall not begin presently ; for nothing extinguishes and avoids the lease but the taking the second lease . and then the lease to c. is an impediment that the second lease cannot commence , and therefore the first lease is not determined . tenant in tail marries , and makes a lease for years , the wife endowed shall avoid the lease for her time , but after her decease the lease will stand good against the heir if the heir accepts the rent . if tenant in tail makes a lease for years , and marries , and dies without issue , the donor avoids the lease , and the wife recovers her dower , the lessee shall enjoy it against her . a. makes a lease for forty years , provided , that if b. dies within the term , that it shall be but for twenty ; a. dies at the end of four and twenty years , the lessor brings an action of waste , for waste done between the three and twenty and four and twenty years : some think it is maintainable in the tenuit , for the term continues until the death of b. if a rent had been granted for forty years with such a proviso , and he dies , ut supra , the tenant of the land may have an action of accompt for the rent received after the twenty years ; for now upon the matter the grant ended at twenty years . if a lease be made of land to me during my life , and the life of b. that is but an estate for my own life ; for the greater drowns the lesser . if a lease be made to two for forty years , if they shall so long live , and one dies , the lease determins ; for it is a condition and not a limitation . so if the lease had been so long as a. and b. shall be justices , &c. a. le ts during the life of baron & fem , the lessee grants during the coverture . limitation . if land be given to one and the heirs males of his body , the remainder to the heirs females of his body , the daughter of the son shall not take by this limitation . if land be given , habendum to him and the heirs males of his body , and to him and the heirs females of his body , if he shall take it as a remainder ? quaere . but litt. faith in the last case but one , that the warranty of the father shal be lineal to the daughter . if land be given to one and the heirs males of his body , and the heirs females of his body , if he hath issue male and female , they shall take by moities severally by descent . so if a woman hath three sons by severall husbands , and land is given to the woman and to the heirs of her first and second husband , some think the two sons shall take severally by moities , and yet it was but one estate in the woman . a feoffment is made to the use of i. and after to the use of the feoffor and his heirs , the feoffor doth not take it by remainder ; for the limitation to himself is void ; for the law saith as much , but it is in him as a reversion . but if the feoffment had been to the use of the feoffor for life , there the feoffee shall have the fee to his own use . if a man makes a lease for life to the use of a. and his heirs , there a. bath a fee determinable . land is given to a man and to two women cousins of the donor in frank-marriage , or to a man , and to two women , and to the heirs of their bodies begotten , or to two men & to two women , and to the heirs of their bodies begotten , in every of these cases each hath an estate tail in one part , and shall be jointenants of the freehold , and in none of these cases there shall be a speciall tail . so land given to three , one moity to baron & fem in frankmarriage , or in speciall tail , and another moity to the same man , and another woman in speciall tail , or when it is given to a man , and to two women , or two men and two women , and the heirs of their bodies , this is as much as to say , to the heirs of all their bodies , so that by the words , the heir that must inherit must be heir of all their bodies , which is impossible : and being the words cannot be performed litterally , the law will make the best construction , and make them severall estates tail in every of them , and joint freeholds , quod nota . if land be given to two , to the one for life , and to the other for years , they are tenants in common . but if a gift be made to baron & fem , and to a third person , that is , to the third person for life , to the husband in tail , and to the wife for years , if the third shall take the moity ? quaere how the husband and wife shall take jointly , or severally , or how much severally ? if tenant for life makes a lease for life , the remainder to the lessor and a stranger , some think the stranger shall take all ; for he cannot give a fee to him that had a fee before ; as if one jointenant infeoffs his companion and a stranger , and if he had made a lease pur auter vye , the remainder ut supra , there perhaps it would inure jointly , but the limitation of the fee here works by wrong , and it is better for the lessor that the stranger takes all ; for then he may have his action for all . livery & seisin . if a man makes livery of one acre in the name of that and another , which he hath for life in tail in right of his wife , or of his parsonage , or bishoprick , all pass . but if it be in the name of an acre , which he hath for years , or as guardian , or by reason of an execution , it is otherwise . if a man makes a feofment to a. and the mayor and commonalty of london , and makes livery to one in the name of both , none takes , but him that took the livery . if tenant for life enfeoffs the wife of the lessor , and the lessor makes the livery , yet it is a forfeiture . if a feofment be made of a mannor with an advowson appendant , if livery be not made the advowson will not passe in grosse by the delivery of the deed. a disseisee cannot make a letter of atturney to deliver seisin , for he hath not possession : but if he delivers the letter of atturney as an escrowl , to deliver seisin after his entry , it may be good . if a man makes a lease for life , and after makes a feofment with a letter of atturney , &c. and after tenant for life dies , if he may now make livery ? if a feofment be made to a. and a fem sole , with a letter of atturney to deliver seisin , and before seisin they intermarry , and then seisin is delivered , they shall take by moities . a. makes a feofment of three acres , and after purchaseth another acre , and delivers seisin in that acre in the name of the rest , if the other shall passe , quaere ? if two jointenants make a feofment with a letter of atturny to deliver seisin , and one makes a feoffment and livery in person , it is a countermand of the whole livery ; for he that took the livery hath no privity with the other as to that . livery made to the particular tenant within view is not good to him in remainder ; for it can benefit none but him that took it ; and if there be two particular tenants with a remainder over some , that livery made to one will not transfer the remainder . and if a lease be made to a. and b. upon condition , that if a. doth such an act , that he shall have fee , and livery is made to b. onely , that will not enlarge the estate of a. for he that took the livery hath no privity with the other as to that . livery cannot enlarge an estate if the determination of it be certain . market overt . if my goods are stollen , and i sell them in market overt for a certain sum , the vendor hath no remedy for his money ; for the contract was void ; for if one buyes goods in market overt knowing them to be stollen , the property is not changed , no more is it here ; for the vendor knew they were stollen from himself . if he which knows the goods were stollen , and another buys them in market overt , and the stranger dies , he shall have all the goods , and the property was not altered at the first , but for a moity . if goods be stolen and are sold in a market overt , and after he that sold them buys them again , yet the first owner cannot take them ; for the property was altered by the first sale . nusance . if one hath a mill or house which falls down , and in the mean time a nusance is levied , and then it is rebuilt , he shall not have an assiz● of nusance , nor abate it ; for it was not made to the nusance of his frank tenement ; for it was not then in being , but the nusance is elder than the freehold . some think all is one , if the nusance had been levied in the time of the old house . obligation . if a. hath two daughters , and binds himself and his heirs in an obligation to the eldest , and dies seised of lands , and leaves assetts to his executors , the obligation is discharged ; for it cannot be apporcioned . if two are bound jointly , and one delivers the deed at one time , and the other at another , yet it is a good joint obligation . if an obligation be made to a fem sole and another , and the fem marries and dies , the other shall have the whole duty ; for a chose in action does survive . occupant . a lease is made to one for the lives of a. and b. the lessee makes a lease for the life of a. only , if the second lessee dies , living a. the occupant shall have it . if land be given to two , to one for the life of a. and to the other for the life of b. if one dies , the other shall make himself a title against an occupant . if a lease be made upon condition , that if the rent be behind , the lessor shall enter and retain , and the lessor enters and dies , his heir shall have it against an occupant . if i am lessee for the life of c. and i grant my estate to d. upon condition , that if d. dies , living c. that it shall be lawfull for me to re-enter . quaere , if this condition be sufficient for me to enter upon an occupant ? if a man commits felony , and the lord grants his seignory , and after the man makes a feofment upon condition , and is attainted , and obtains his pardon , and after re-enters for ●reach of the condition and dies , if the occupant shall have the land , or the lord , or the issue , is the question ? a. makes a feoffment to b. habendum to him so long as pauls steeple shall stand , b. dies without heir . quaere if the lord may enter by escheat , or an occupant shall have it ? outlawrie . if a man grants to another one of his horses , until the grantee hath made election there is no property vested in him , neither shall he forfeit it by outlawry . parceners & partition . a. seised of two acres hath a son and a daughter by one venter , and a son by another , grants a rent out of one acre to the son , who dies , the father dies , the daughters make partition , the land charged is allotted to the youngest , she shall hold it charged with all to the eldest , ass . p. . a. hath issue two daughters , and holds land of the eldest by suite and an hawke , and dies , the daughters assign a third part to the mother in dower , and then makes partition , tenant in dower shall not be contributory for any part of the services ; for the reversion remains in parcenary between them two : for they cannot make partition thereof , and then the whole seignory is in suspence , and also the youngest daughter shall be discharged of the tenure ; and yet if land holden by an hauke discend upon the seignoresse and her sister , and they make partition , the seignoresse shall have the hauk , but there no suite ; for by the stat. of marlbridge ca. . the eldest ought to do it , and the youngest is to be contributory , but she being seignoresse cannot do it to her self , ergo , &c. but the reason in the principall case why the youngest shall be discharged , is , because the seignory is in suspence for parcel , and it cannot be in esse for the rest : but if a tenant hath two daughters , and the lord seises the youngest within age , he shall distrain the other for the moity of the seignory and the act of law shall not prejudice him . quaere , for the seisure is his own act. if one sister be seignoress , to whom the tenancy is descended , she shall not have the rent nor other charge before partition , but if she had the tythes she should have had them after severance from the nine years before partition ; for they lye in prendre , and she takes them as parson . before partition one parcener makes a lease of an acre to i. s. for twenty years , and they after make partition , so that that acre is allotted to her , it seems she shall out the lessee ; for the partition hath relation from the death of theancestor , and yet at this time she had full power to make a lease of the moity of it . so it seems she shall avoid a rent charge granted by her sister . if the husband makes a lease of an aere which is after assigned to his wife by a recovery in dower upon a title which she had at that time , she shall avoid the lease , &c. forall . quaere in both cases . if one parcener recovers pro rata against her companion , she shall avoid the charge made by her in the land recovered as an exchanger shall do . land recovered in value after partition by one parcener shall be rateable . a. seised of two acres hath two daughters , and grants a rent charge out of one acre to the eldest and dies , they make partition , the eldest hath the land charged , and the other being impleaded recovers against the eldest pro rata , she shall hold the land recovered in value pro rata with the portion of the rent . if parceners make partition , and one aliens in fee , a stranger by a title paramount enters upon the other , she shall not occupy the land with the feoffee ; for the privity is dissolved ; for she cannot recover pro rata ; if a. be seised of one acre in tail , and of another in fee , hath two daughters , they make partition , the younger hath the acre in tail , the lord of whom the acre in fee is holden shall take notice of this partition , it seems otherwise for a donor of an acre in tail ; for he shall not be bound by that partition unduly made , no more than the issue in tail shall be , but the parties that made the partition , being of full age are concluded ; but if one acre in tail be allotted to one , and the other acre in tail to the other , the donor is concluded . if partition be of land in tail , and a rent is granted for equality of partition , that rent shall be in tail , h. . . but if there be parceners of two acres , one in tail , and the other in fee , and she which hath the acre in fee grants the rent to the other for equality , that rent shall be but in tail , but if that rent had been granted to her which had the fee , it shall be in fee ; for if she dies without issue her heir shall have it so long as the other hath issue of her body ; for til that ceases thepartition stands : but if there be four acres , three in fee , and one in tail , and she which hath the third acre grants a rent for equality , thatshall be a fee quia sequitur magis principale . three parceners in tail make a feoffment with warranty , the eldest first , and the youngest after dies without issue , the second hath issue and dies , the issue brings a formedon , she shall recover a moity of the part of the eldest , and a moity of the part of the youngest , and no more ; for the warranty of the eldest was collateral to the second for the part of the second ; for the other part she could not make her self heir to her that made the warranty , but yet for the part of the eldest , the warranty is lineall to the second and youngest daughter ; for they might inherit as heir to her , and for the part of the youngest as to her self and her heirs , for their third part the warranty of the eldest is collateral ; for the youngest or her heirs could not make themselves heirs of that third part to the eldest who made the warranty , so that the warranty of the eldest shall enure , as aforesaid . then as to the youngest , who died last , her warranty as to the second sisters part is collaterall , and to her issue ; for they cannot make themselves heirs to her who made the warranty , &c. but as to a moity of the eldest , 't is lineall , and as to the other moity collateral ; for by possibility the youngest and the second might have had the part of the eldest by descent , if the eldest had died first , as she did , then if the youngest dies without issue , the moity of the third part which descends to her from the eldest , descends to the second as heir to the youngest . then as to the other third part of the eldest , the warranty of the youngest is collaterall to the second ; for the second as to the moity of that third part could not have been heir to the youngest , who made the warranty , but ought to have been as immediate heir to the eldest , and as to her own part her warranty as the second is lineall ; for by possibility she might have had that part as heir to the youngest , then being the youngest is dead without issue , the warranty of the eldest as to a moity of the part of the youngest is lineal , and as to the other part of that part 't is collateral to the second ; for by possibility the youngest might first have died , and then her part descends to the eldest and the second , and so a moity of that might descend from the eldest to the second , and therefore the warranty of the eldest shall be lineall for one moity of the part of the youngest , and for the other moity of the part of the youngest 't is collaterall , and so the warranty of the eldest which upon the descent was collaterall to the youngest ; for the part of the youngest , is now changed for the moity , and made lineal for the moity . v. . h. . . h. . . three parceners make partition , the eldest hath one acre in fee , the second another acre in fee , the third one in tail , all being of full age , the eldest dies , her issue enters upon the youngest ( as she may ) the second may enter also , and the partition is defeated ; for when the youngest is outed , the second shall have part of that to which the issue of the eldest is remitted , as she would if she had recovered in a formedon , if the second may not enter it will be a mischief ; for she cannot have aid , being the other holds pro indiviso . a. hath two daughters by one venter , and a third by another , the youngest is seised of three acres of equall value , and grants a rent of three shillings to the father in fee , and then infeoffs the second of one acre , who dies without issue , so that it descends to the eldest , the father dies , the eldest shall have the rent , but if the second had infeoffed the eldest of the acre , then she should have nothing ; for in the first case she hath the land by descent , and the rent also , and therefore the rent shall be apporcioned , but in the other case she hath the land by purchase , in which case the rent shall be extinct , though she hath the rent by descent , or not , and though the purchase was before the descent or after . and if a man hath a rent of twenty shillings out of twenty acres of equall value , and one acre descends to his wife , all the rent is suspended ; for it cannot be apporcioned when he is seised of part of the land in auter droit ; but if she dies , and he is tenant by the curtesie it shall be apporcioned ; for the land continues in him by the act of the law , which is equall to a descent ; and if a rent be in tall , and parcel of the land descends to him in fee , or the rent be in fee , and parcell of the land descends to him in tail , there must be no apporcionment . i. dies having two daughters , one is attainted of felony , a lease is made for life , the remainder to the right heirs of i. the other shall take nothing in remainder , because she which is attainted is living . particeps criminis . if the lord procures one to disseise the tenant , and the disseisor cesses , and the lord recovers against him , he shall retain it against the disseisee ; for by the procurement he is no disseisor , as it appears , e. . . but see littleton contra in his chapter of remitter ; for he had cause to recover de puisne temps : but otherwise if he had title of cessavit at the time of the procurement and disseisin , quaere , if he had ceased one year before the disseisin and another year after ? as if the issue in tail procures one to disseise the disseisor of his father , whose heir is in by descent , against whom the father recovers and dies , the issue shall retain : but if he himself had recovered against the disseisor upon a title then in being to him at that time , he shall not be remitted . if one hath title of formedon , and he procures one to out the tenant , to the intent that he may recover against him , and a stranger outs him , and after i s. recovers upon a title puisne to the procurer , and the other recovers against him by a formedon , he is there remitted . and if two jointenants have a title of action , where their entry is taken away , and one procures a stranger ( ut supra ) against whom they two recover , and he which was party dies , the other is remitted to all , but if he which did not procure had died first , the other should not be remitted but to a moity , quaere ? payment . a rent charge is issuing out of two acres , the tenant of the land makes a feofment of one , the grantee may distrain in one , or the other for all ; but if one tenant payes to him the rent , if the other be distreined he shall plead the payment by his companion , for it discharges the whole tenancy . place . if a. leases land in two counties , rendring a rent , it is one entire rent , and he may distrain in one county for all , but he must have severall assizes , and in every county make his plaint for all the rent : but it seems that upon a rescous in one county he shall have an assize in the other , quaere . pleas. if a man hath a wife , and makes severall feofments with warranty , and dies , the wife brings dower against one of the feoffees , he may plead that the heir hath endowed her having regard unto all the land ; for there is a great privity betwixt the tenant and the heir , for the tenant may vouch the heir , and it seems that he might plead that one feoffee had endowed the wife , for it goes in discharge of the tenancy . some think that guardian in fact in dower shall not plead detinue of the body of the heire , for none can plead that but he whose title commenced when the title of dower commenc'd : but the guardian in droit may plead it , and if the heir make a feofment , the feoffee shall not plead detinue of charters in dower . if an obligation be delivered in owell maine to i. who breaks the seal , in detinue if he should not plead a release to the obligor if it would be heard , and yet paston in h. . . b. sayes , that the goaler cannot plead a releafe made to him that escapes . possession . if the tenant dies without heir , the law casts the possession of the tenancy upon the lord before entry , but if the tenant is attainted of felony , he shall not have the possession in fact or in law before entry . if one jointenant leases his part for years , a stranger enters , claiming the moity of the other , who waives the possession ; it seems it is a disseisin to him , though the termor continues in , for they are tenants in common , and though the possession of the lessee be the possession of him in reversion , sc . his companion : but è contra if the termor had waived the possession and the other continues in , it seems that he in reversion cannot be out of possession , for his joint companion held it . two jointenants in fee of a rent charge , a stranger takes it to the use of i. one releaseth to the pernor , the other to the tenant , if by the last release he shall be said in possession ab initio , then the first release to the pernor is void ; for the possession of one is the possession of both . possessio fratris . a. makes a lease for life , and dies , having a son and a daughter by one venter , and a son by another , the eldest son grants the reversion in tail , the tenant atturns , and he dies , the grantee in tail dies without issue , tenant for life dies , it seems the daughter shall have the land , not the youngest son. the disseisee dies having a son and a daughter by one venter , and a son by another , the son after the descent enters upon the heir of the disseisor , and dies without issue , the daughter shall not have the land ; for his possession was tortious , if the father dies seised , and the eldest son makes a lease for life , the mother recovers dower against the lessee , the son dies , the daughter shall have the reversion , and not the son. but if tenant for life dies after the death of the son , and during the life of the tenant in dower , quaere , who shall have the reversion , the son or daughter ? if a. makes a lease for life , and dies , his eldest son disseises tenant for life and dies , tenant for life dies , the son shall have the land from the daughter , which is put in the book of ass . and the principall case is , the eldest son endows his mother and dies , if the youngest son , or the collaterall heir of the eldest shall have the land. the father dies seised of two acres , theson enters into one saying nothing , if that shall be a sufficient possession of the other acre , to make the sister to be heir . quaere . some think it shall not . if a disseisor or feoffor on condition enter into one acre saying nothings there no more shall be gained by that entry ; but in the principall case , if the acres had descended one from the father , and another from the mother , then the entry into one is an entry but into that only . so if it had been on a title for several conditions , h. . . so the entry of the bastard into one acre shall devest no morethan that ; for the mulier had a possession in law. quaere . if a man makes a lease for years and dies , this possession in law of the reversion is sufficient to make the sister heir . quare impedit . in a quare● impedit against the patron and incumbent it is no plea for the incumbent , to say , that he hath been in six months upon the presentation of the patron ; for none can plead plenalty , but he who by such plea may gain the patronage , and against whom a writ of right of advowson is maintainable , quod vide in e. . . but in a quare impedit against the ordinary and incumbent , the incumbent shall say , that he hath been in six months upon the collation of the bishop by reason of laps , because no patronage is gained by that , so note the diversity , r. . encumbent . e. . quare imp. . h. . . h. . . e. . . recognizance , vide statute . record . if a record in the c. b. be pleaded in any other court of the king , where it is requisite to be produced , it must be exemplisied under the great seal of england , and the seal of the court is not sufficient , but if he pleads it in c. b. there if he shews the exemplification under the seal of the court it sufficeth ; for in the one case it is teste meipso , and in the other , teste the chief justice . relation . if a feoffment be made of a mannor when atturnment is had the services passe ab initio . if a lease be made for life the remainder to the king , and livery is made , and after th e deed is inrolled , now the remainder passes to the king , as a remainder , ab initio . if land be given to baron & fem in fee , he dies , and the wife waives the possession , and recovers her dower against the heir , she shall recover damages ; for by her refusall the husband shail be said to die seised . keylway . p. . if a man who hath a villein delivers an escrowl of enfranchisement , to be delivered to his villein seven years after , and before the end of the seven years he dies , and the deed is after delivered , that will be a good enfranchisement by relation . vide barg . & sale. release . lord , mesne , and tenant , the tenant holds in socage , and the mesne in chivalry , the tenant makes a gift in frankmarriage , the mesne releaseth ro the donor , the four degrees passe , the donor seiseth the ward of the issue , and enters into the land , and he brings an action of trespass , some think it is maintainable . if lessee for years makes a feoffment to two , a release to one shall inure to both . if tenant in tail makes a lease for life , the remainder for life , and releaseth to him in remainder , and his heirs , if the first tenant for life dies in the life of tenant in tail , it is a discontinuance . the tenant holds ten acres by ten pence , and makes a feoffment of one , the lord grants the rent , reserving the fealty , the tenant atturns , the grantee releaseth all his right in the land to the tenant , yet he shall have one penny ; for the feoffment severed the seignory , and by the grant two rents passed , and but one is extinct by the release , viz. the rent of nine pence . two disseisors make a gift in tail to hold in chivalry , the disseisee releaseth to one , the donee dies ; some think this release will inure to both . two women disseise another , and make a feofment to their father , who dies , so that the land discends to them , the disseisee releaseth to one , it shall inure to both ; for betwixt themselves they are in by title . if a disseisor dies seised having two daughters bastards , and the disseisee releafeth to one of them , that shall inure to both . a. makes a feoffment to two upon condition , which is broken , the feoffor releaseth to one , it shall operate to both ; for they are not in by wrong , and a release where it countervails an entry and feoffment doth not extend to titles , if a disseisee enters upon two disseisors , and they recover falsly in an assize , and he releaseth to one , that shall inure to both ; for between themselves and the disseisee also they are in by title . if an infant infeoffs two , and at his full age releaseth to one , it goes to both . if two disseisors make a feoffment , and take back an estate , a release to one inures to both ; for though in respect of the disseisee they be disseisors , yet in relation to themselves they are in by title . so if a disseisor makes a feoffment , and takes back an estate to himself for life , a release to him will go to him in remainder . if a disseisor makes a lease for life , and the lessee makes a feofment , and the disseisee releaseth to the feoffee , the right of entry which the disseisee had is taken away ; for a release of the disseisee will avoid all rights of entry , but not titles . if a disseisor grants a rent-charge , and is disseised , and a release is made to the second disseisor , the charge remains , but the dower of the wife not ; for the one is executed , and the other executory only . if two disseiors make a lease for life , with a remainder in fee , the disseisee releaseth to the tenant for life , the wife of the first disseisor shall be endowed . if my tenant for life is disseised by a. who is disseised by b. to whom i release , the wife of a. shall be endowed ; and if tenant for life dies , a. may enter upon b. and retain for ever . after the vouchee hath entred into warranty , an ancestor collaterall of the demandant releaseth to the vouchee with warranty and dies ; now the vouchee cannot plead this warranty against the demandant , for the release was void ; for though the vouchee shall be tenant to the demandant , yet he shall not be so to a stranger , for if a stranger will release to him after he hath entred into warranty , the release is void . but if an ancestor collateral had released to the tenant after the entry of the vouchee into warranty , the vouchee may plead it . quaere in the first case , though the release be void , yet if the warranty shall not be good ? a feofment is made rendring a rent , and upon default of payment a re-entry , the rent is behind , and then the lessor releaseth the rent . there is a difference between a releafe in fact and in law. if the tenant makes a lease for life , and the lord releaseth to the tenant for life , all his right in the seignory is utterly extinct . but if the lord distrein the tenant , and makes a lease for life , he hath not extinguished his seignory for ever , for a release in law is taken most favourable . if a rent be granted for life , and by another deed thegrantor releaseth to the grantee all his right in the rent ; and if it be behinde , that he shall distrain for it , yet it is but a rent seck . if two are disseised , and one releaseth to the disseisor all his right in the one moity , his right is gone in al● , and yet his right was per my & per tout ; but being he hath released all his right in one moity , which extends per my & per tout , that is the reason why , &c. so if there be two disseisors , and one disseisee releaseth to one , for he was seised per my & per tout . but if he had released all all his right to one , viz. in the moity of that one , and not in a moity generally , the law had been otherwise , viz. that his moity remains in the moity of the other moity . a disseisor having a wife makes a lease for life , the lessee makes a lease to the wife , for the life of the wife , the husband accepts the deed , and agrees to it , the disseisee releaseth to the wife , the husband dies , the release is void ; for , by the lease to the wife the husband had title of entry for the forfeiture , and then he is remitted , and though he agrees that the wife shall take the estate , yet it is no estopple , then the husband being remitted there is no possession in the wife upon which the release may operate . if a disseisor having a wife makes a lease for life to a. who makes a lease to b. for life , the disseisee releaseth to b. the wife of the disseisor shall be endowed , for the release doth not countervail an entry and feofment . if a disseisor makes a lease for life , the lessee makes a feofment , and the disseisee releaseth to the feoffeo , that takes away the entry of the disseisor ; for such a release takes away all rights , but not titles , as conditions or dower . but if a dis seisor be disseised , & the disseisee releases to the second disseisor , that takes away the dower of the first disseisors wife . tenant pur auter vy , the remainder to i. for his life , i. releaseth to the lessee , that release is good , and inures by way of fezance de estate , for if a remainder had been limited to the tenant for the life of i. that had been good , therefore here he hath a sufficient tenant for life , and a possession whereupon a release may operate , but if the first lessee had had an estate for his own life , then the release had inured by way of extinguishment ; for the first estate was greater having regard to the lessee . if a lease be made for forty years , the remainder for ten years , and he in remainder releaseth to the tenant for forty years , he shall have it for fifty years ; for the forty years cannot be drown'd : if the remainder had been a lease for an hundred years ; for one chattle cannot consume another , for it is all one as if lessee for forty years should make a lease for ten years , and after will release to the lessee , he shall have it for forty , and not for thirty years . if a lease be made for years , the remainder to a. for life , the remainder to b. for life : if b. will release to the lessee , that is cleerly good ; for there is sufficient privity between them although he hath not the next immediate estate . but if the lessee will release to his lessor , that is void ; for the lessee was in possession . so if the guardian releaseth to the heir , that is void . if two disseisors make a lease for life , and the disseisee releaseth to one , that will inure to both ; for of necessity it will inure to lessee for life : and so by consequence to them in reversion , and that is to two . if tenant for life is disseised by two , who are disseised by another , the lessor releaseth to the last disseisor , the first disseisors may enter notwithstanding the release ; for the releasor had no title of entry . but if his entry had been lawful , as if his tenant for life had infeoffed a stranger , who had been disseised , and the lessor had released to the disseisor the lessee could not have entred ; for the entry of the lessor ( who had a title paramount ) was congeable . as if a disseisor makes a lease for life , and the lessee makes a feofment , and the disseisee releaseth to the feoffee , the disseisor cannot enter . but if the heir of the disseisor , who is in by descent makes a lease for life , the lessee makes a feoffment , and the disseisee releaseth to the feoffee , the lessor may enter ? for the disseisee could not , h. . . pet fineux . if an infant makes a lease for life , and the lessee grants his estate with warranty , the infant brings a dum fuit infra etatem , and the tenant vouches the grantor , who enters into warranty , and loseth , the demandant releaseth to him and his heirs , some think the release is void ; for he is tenant only to answer the action , but a release which is to enlarge an estate must inure upon a privity of estate . and therefore a release made to tenant by the curtesie in fee after he hath granted over his estate is void , and yet an action of wast shall be maintainable against him by the heir , and he shall atturn . if a lease be made for life , the remainder for life , the tenant for life dies , and before the entry of him in remainder the lessor releaseth to him in fee , that shall inure according to the words . but in a writ of entry in the per , if the tenant vouch him , by whom , &c. who enters into warranty , and the demandant releaseth to him , that inures by way of extinguishment . if a woman who hath cause of dower releaseth to the guardian , that takes away her title and estate , though the gardian had but a chattle , and the heir shall advantage of it . it was said in the case of the dum fuit infra aetatem , if he had released in tail a greater estate should not have passed ; for though it doth not appear by the dum fuit infra aetatem what estate he claims ( for the writ is generall ) yet when he enters generally into the warranty , he shall not be said to have a fee against the demandant , but the demandant shall make an averment , that he did not make the devise but only for life . a release made to the patron when the church is full doth not extinguish an annuity , otherwise if it had been in the time of vacation , h. . . but a release to the ordinary peradventure will not avail ; tenant for life grants a rent charge , a release to him in reversion will not extinguish it , no more than if he in reversion grants a rent charge , a release to tenant for life will extinguish it . if there be two disseisors , and one makes a lease of a moity for years , reserving a rent with a re-entry for not payment , the disseisee releaseth to the other who did not make a lease , he shall have the whole freehold of all the land , and the lessee shall not pay the rent to him ; for he comes to the reversion by title paramount , and not by any privity . a. ours his termor for years , and then makes a lease for years , the first termor releaseth to the second , the first lessor may enter and have the land against them both ; for by the release the right of the first termor was extinct . as if a rent charge be granted to the disseisor , &c. and it doth not fortifie the estate of the second lessee during the first term ; for if the first lease had bin for twenty years , and the second but for a year , yet by the release of the first lessee to the second , all the first estate shall be extinguished . but if he had been tenant for life , and the disseisee releaseth to the disseisor , now during his life the lessor cannot enter , otherwise if he had been tenant for years ; for in one case the disseisor had a freehold in him which might be fortified , and in the other case but a chattle . although the husband cannot give any thing to the wife immediately , yet if a disseisoresse makes a lease for life , the remainder to her self in tail , the remainder to a. in fee , and marries the disseisee , who releaseth to tenant for life , that will inure to his wife . if an infant disseisor makes a feoffment , and the feoffee dies seised , and his heir enters , to whom the disseisee releaseth , yet the infant shall have a dum fuit infra aetatem , and shall recover ; for he demauds the possession to which he had more right than the disseisee , and the tenant ought to answer to the demise , and not to the right : as if the heir of the disseisor , who is in by descent , brings an assize against his disseisor , it is no plea for him to plead the release of the disseisee ; for he demands the possession to which he had more right than the disseisee . so if the disseisor recovers in an assize by erroneous judgement against his disseisor , and the disseisee releaseth to him that hath recovered , and the other brings a writ of error , it is no plea for him to plead the release ; for the intent of the suit was to correct the error upon the record . if a disseisor makes a lease for life , and the lessee makes a feoffment to a. who obtains a release from the disseisee , the disseisor brings a consimili casu , some think he shall recover ; but if the heir of the feoffee , who is in by descent , &c. gets a release , it is cleer the disseisor may have an action , and the tenant ought to answer to the demise , and not to the right of the land in both cases . if a disseisor enters upon his feoffee for breach of a condition , the feoffee shall not have a writ of right , though the right of the disseisee be released to him before the breach of the condition . so if the disseisee enters upon the heir , who is in by descent , and makes a feoffment , or releaseth of such an heir , and the heir re-enters , or if one who hath a title brings a formedon in remainder against an abator , and recovers by default . see the rest of the case in h. . . in all these cases he to whom the release was made , or the right was given , shall not have a writ of right , but it shall goe in advantage of him that removes the possession ; for being one hath a right in possession , and recontinues it , that draws the very right to it , and the right by it self shall not be left in the other . note that in all these cases , the right comes after the possession ; but if the right were before the possession , and then the possession is removed , the right remains in the person to whom it was given . as if the heir of the disseisor , who is in by descent , enfeoffs a. and several other feoffments are made , and after the land comes to the heir again , and the disseisor enters upon him , and he outs him . now if the disseisee brings a writ of right upon his first possession , he shall be deluge by vouching of the feoffees ; but he may have a writ of right upon the last possession which he had by disseisin , and that is beyond all the vouchers , and though the possession was removed , yet that is not materiall ; for littleton saith , the effect of the writ is the meer right . the husband discontinues in fee , and takes back an estate to himself and his wife for their lives , the husband makes a feoffment and dies , the wife releaseth to the second feoffee , yet the first feoffee may enter for the forfeiture , and she hath no remedy , and this case is supposed before the statute of h. . but if the wife had not released , but the first feoffee had entered upon the second for the forfeiture , the wife ( the husband being dead ) might enter upon him ; for she may claim by the lease , and then the entry for the forfeiture had avoided the discontinuance , and so she may enter by vertue of the lease made by the first discontinuee . if tenant for life be disseised , and the disseisor is disseised , and the lessor releaseth to the second disseisor , and the first disseisor outs him , he hath no remedy by writ of right , or otherwise , quod nota . a gift in tail is made with warranty , the donee releaseth the warranty to the donor , the reversion is granted , the donee atturns , if the issue in tail be impleaded , he shall not vouch ; for the release hath extinguisht the warranty for ever ; for the statute is of tenements , &c. and this is no tenement , but a covenant reall , which is extinguished by the release . as if an annuity be granted in tail , a release from the grantee dischargeth it . if a false verdict passeth against tenant in tail , a release made by tenant in tail of all his right shall not bar the issue of his atttaint , but if he releaseth all false oaths to one of the petit jury . quaere , if the issue shall have an attaint ? and a partitione facienda is maintainable by the issue in tail , by the equity of the statute de donis , &c. & contra form . feoffam . & contributione faciend : and a release of them will not bar the issue ; for it is of the land , and an vse in tail is taken by equity , and tenant by copy , &c. shall be taken by equity to have an estate tail , and shall have a plaint in nature of a formedon . so by some the release in the principall case is no bar ; but tenant in tail by his release may extinguish an accquittall granted by the donor . and execution of a recovery in value by reason of a warranty , and not a recovery pro rata against his coparcener . if a man binds himself and his heirs in twenty pound and dies , his executors having assetts , the obligee releaseth all actions of debt to the heir , the executors pay the assetts to other creditors , some think the obligee shall have an action of debt against the heir ; for at the time of the release the obligee was not intitled to have an action of debt against the heir , but if neither the heir nor executors had assetts , and then the debt is released to the heir , and after assetts come to the hands of the heir , it seems the release will bar him . if tenant for life commits wast , and grants over his estate , the lessor releaseth all actions to the grantee , yet he shall have an action against the grantor ; for he was not intitled to have an action against the grantee . so if tenant in dower , or by the curtesie , who have granted over their estates , otherwise of a release of land. a. makes a lease for life , and grants a rent out of the reversion , a release made by the grantee to tenant for life will not extinguish the rent : so if a rent be granted by tenant for life , a release to him in reversion will not extinguish the rent . a lease is made for life , the remainder for years , he in remainder releaseth to tenant for life all his right in the land , the yeares are drownd ; but if the release had been , habendum the land during the years , then the term for years had continued . as if a lease is made for life , and after a release is made to tenant for life , habendum to him for forty years after the lease for life ended , there he shall take it as the words direct : and some say , that a release made by tenant for years to the lessor extinguisheth the term , orherwise of a release by tenant for life . and if a lease for years be made to commence at easter , and before easter he releaseth all his right to the lessor , the years are extinguished . if lessee for years be ●jected , and releaseth to the disseisor , the lessor may enter , but otherwise of a release made by tenant for life . if one makes and delivers an obligation at michaelmas , which bears date at christmas following , and at the feast of all saints he releaseth to the obligor all actions , and after christmas he brings an action of debt , he shall plead the release , and say the obligation was delivered at michaelmas , and that the release was delivered at all saints , according to the date . if the disseisee releaseth to the disseisor all actions , and dies , and the disseisor dies , and his heir enters , and the land discends to the heir of the disseisee , it seems by the release of all actions , which he hath , or may have afterward by the same right , are discharged . so of actions which his heir might have for the same disseisin . so that a writ of entry in the quibus is released , although his heir had no cause of action at that time , then it is in a manner as if he had released after the descent as to the extinguishment of the action , then being he had a right notwithstanding the release , so that he might enter , that right is not taken away by the descent after . some think a release of actions is but a conclusion , which goes in privity of blood , and not of estate : and therefore after such a release to the disseisor , if he aliens over , the release is not pleadable by the alienee ; for he is not privy , and it doth not go with the estate . so if a disseisor makes a lease for life , with a remainder over , and the disseisee releaseth all actions reall to the tenant for life , who dies , he in remainder cannot plead it , as if it had been a release of right , and therefore if a release of all actions had bin made to him in remainder , that had been void to all other purposes , so such a release of actions shall not extinguish a right , if the entry be taken away , otherwise than by an estopple , which being removed by the descent in law , the release ceaseth to be a conclusion after . some think if the heir of the disseisor infeoffs two , and the disseisee releaseth all actions to one of them , and he dies , the other shall not plead it , and so if two are disseised , and one releaseth all actions to him that is in by descent , and dies , the other , as survivor shall have an action for all the land. if tenant for life commits wast , and grants over his estate , in wast brought against him he may plead a release in the land , and yet he hath nothing in the land. a conusor of a statute merchant is in execution , and his land also , the conusee releaseth to him all his debts , afterwards the goaler lets him have his liberty , it seems that the execution is discharged by the release ; for the debt is in esse until the profits satisfie it , or else the execution could not remain , as the heir is in ward until he be capable to perform his services , but if the seignory be released to the tenant , he is out of ward for body and land. if he in reversion of a seignory releaseth to his grantee for years , and to the tenant of the land , and to his heirs . quaere how it shall inure ? but if it had been to them two generally , then the estate for years and all the seignory had been extinct ; for though it inlarges his estate for life , and no more , yet without those words , his heirs , all the reversion is extinct , and consequently the estate for yeares , quod non negatur . h. . . but if it had been of a rent charge , and the release had been to them , the grantee shall have it all for life , and the other the fee , and so it shall inure to both . tenant for life and he in reversion grant a rent charge , the grantee releaseth all his right to the reversion , if the rent be extinct ? some think not ; for their estates being severall so are their grants , and then a release to the reversioner will not extinguish a rent issuing out of the possession . and if it shall be taken to be the grant of tenant for life , and the confirmation of him in reversion , yet such a release will not extinguish it ; for though he purchaseth the reversion yet he shall have the rent during the life of tenant for life , and if it were severall grants , a release to tenant for life will not extinguish a rent issuing out of the reversion ; for to this charge the tenant need not atturn . the surviving parcener may release to the husband of the other being tenant by the curtesie . and if one parcener hath twenty daughters and dies , the other may release her whole part to either of them . but if jointenants be of twenty acres , and one makes a feoffment of all his part in eighteen , perhaps the other can release his right but in two acres . but if husband and wife , and a stranger are jointenants , the stranger may release all his right to the wife only . tenant for life , the remainder in fee , makes a gift in tail , the remainder in fee , he in the first remainder releaseth all his right to the donee , not saying , and to his heirs , and then grants a rent charge to a stranger out of the remainder in fee , and dies , the donee dies without issue , the heir of him in remainder enters , if he shall hold it charged ? some think the release doth not give the right in fee , which the releasor had , to the releasee ; for then in a manner he doth release to himself , but if the remainder had been in tail to him that had the remainder in fee , then the release had inured to the first estate in tail , and to the fee , and then if the last fee be fortified , the mesne remainder is established , and so the release inures to himself . but as to the other point which may be moved . if the remainder be good to him that had the remainder before ? being it is out of him and in him at one and the same instant , it is good enough . if one be disseised to the use of a. the disseisee releaseth to the disseisor , yet a. may agree to the disseisin ; for a release doth not take away a title any more than it doth a condition , or a rent charge granted by him ; or if he covenants to stand seised to an vse executory upon marriage , such an use cannot be taken away by such a release . but if there had been two disseisors to the use of a. and the disseisee had released to one of them , that will take away all the title , causa paret . so if tenant for life releaseth to his disseisor , that doth not restore the reversion ; but if he had released to one of the disseisors , it had been otherwise . land is holden of the mannor of dale by fealty and twenty shillings , the lord makes a lease of the mannor for years , rendring forty shillings with atturnment , after the lessor releaseth to the tenant all his right , if the rent of forty shillings shall be apporcioned ? by the release the tenant is discharged of twenty shillings as well against the lessee as the lessor ; for the tenant holds it of the lord paramount , so he does not hold it of the lessee ; for he cannot hold the same land of two severall lords , and the rent of forty shillings is as well payable for the services , as for the demesnes , although he cannot distrain , &c. as in the case of sheep , . h. . . if feoffee upon condition makes a lease for life , a release of the condition to the tenant for life will extend to the feoffee , as it will do of a right or rent . if there be feoffee upon condition of two acres , and the feoffor releaseth the condition in one acre , if it be collaterall , it remains in the other ; as of a warranty annext to two acres , a release in one , yet it remains in the other ; for the condition is severall as the right is ; but if the condition had been made to two , or by two , a release to one , or by one extinguisheth all , as it shall do a warranty . tenant for life of a seignory purchaseth the tenancy pur auter vye , if the lord releaseth to him and his heirs all his right in the tenaney , some think it shall inure by way of extinguishment . but if he releases to him and his heirs all his right in the seignory , that inures as an enlargement of the seignory . so the mesne being a fem marries the tenant , the lord reseaseth to the fem and her heirs all his right in the seignory , that inures to extinguish the seignory only , and not the mesnalty . but if he had released to the husband all his right in the seignory , or tenancy , the seignory , and mesnalty are extinct . but a release to the wife of all his right in the tenancy had been void . but if the lord had released all his right in the seignory to husband and wife . quaere , but some think it inures to extinguish the seignory , and not the tenancy . two jointenants in fee of a rent charge , a stranger receives it to the use of a. one releaseth to the pernor , and the other to the tenant : if by the last release he shall be said in possession ab initio , the first release to the pernor was void ; for the possession of one is the possession of both . if two disseisors grant a rent charge , and the disseisee releaseth to one , he shall hold it discharged ; for the grant of the other by the release is discharged , and the grant being but by one is discharged as to all . and the pernor shall hold it subject to the agreement of a. for some think there shall be an election after , as if he had granted his part to a stranger . a release to one tenant in common will not inure to his companion for want of privity . a. seised of an house on the part of his mother , is disseised by two , and they have estovers granted to them in the same house , the disseisee releaseth to one , the estovers remain for part ; for as to a stranger the release doth not countervail an entry and feoffment . as if a disseisor takes a confirmation to hold by lesser services , and after the disseisee releaseth , yet he shall take advantage of the confirmation . if the son endows his wife , ex●●assensu patris , and the disseisee releaseth to the disseisor , if the dower shall be avoided or not ? a warranty made to the disseisor is not gone , by a release made by the disseisee . if a disseisor having a wife makes a lease to a. for life , who makes a lease to b. for life , the disseisee releaseth to b. the wife of the disseisor shall be endowed ; for the release doth not amount to an entry and feoffment . two fems disseise one , one marries , the disseisee releaseth to the husband in fee , that goe●● by way of extinguishment to both the women ; for it cannot inure as an entry and feofment to one woman , for she is not privy to the deed , and as an entry and feofment to the husband it cannot inure ; for he was in by title : and if the release had been to the other woman , that should not have devested the possession of the husband . the lord disseiseth the tenent and is disseised , the disseisee releaseth to the disseisor of the lord , the seignory is extinct ; for it doth not countervail an entry and feofment in respect of the lord , but extinguisheth the right of the lord to the land , in which right to the land , the right which he had to the seignory was suspended . but if the lord and a stranger disseise the tenant , and the tenant releaseth to the stranger , the seignory is revived , for there it inures as an entry and feofment against the lord , and the lord had not the right to the land : so if the lord dies , and the other hath that by survivorship . remainder land is given to husband and wife , and to the heir of the husband begotten on the body of the wife ; and if the husband dies without issue by the wife , then the land to remain to a. in fee ; the husband and wife die without issue , a. enters , upon whom the feoffor enters , and a. brings an assize ; some think it is maintainable , h. . . such a limitation good . tenant in tail makes a feofment and dies , the discontinuee makes a gift in tail , the remainder in fee to the first issue in tail , the second tenant in tail dies without issue , his wife enseint with a son , the issue of the first entail enters , and after the other issue is born , and enters upon him , and he brings an assize ; some think it is not maintainable . a fem lessee for life marries , a confirmation is made to them two for their lives , that is a remainder in the husband , by reason of the joint-estate of the wife . so if land be given to a. & b. for the life of b. and after a confirmation is made to them two for their lives , that is a remainder in a. and the jointure remains . land is given to husband and wife , and to the heirs of the body of the husband , the remainder to husband and wife in speciall tail ; the remainder is void . if a lease be made for the life of the lessee , the remainder to the lessee for the life of a. that remainder is void . if land be given to one , habendum to him and the heirs males of his body , and the heirs females of his body , he shall have it as a remainder . land is given to two women , quam diu simul vixerint , the remainder to the right heirs of her who first dies ; one marries , and hath issue and dies ; it seems the remainder is good notwithstanding the incertainty . but if the land shall be assets in a formedon or debt against the heir , quaere ? some think it is not , for it was never in the mother . the donor disseises tenant in tail , and dies , and the heic who is in by descent makes a lease to the issue within age , the remainder in fee , tenant in tail dies , though the issue be remitted yet the remainder is good , because it was a livery once , and the remitter was subsequent , as if the lessor disseiseth his tenant for life , and lets for the life of the disseisee , the remainder in fee , the disseisee enters , yet him remainder shall hold it : but in both cases it is a reversion , and not a remainder . quaere of the first case . if a lease be made for life upon condition , that if the lessee shall not have issue during his life , that then it shall remain in fee to a. and he dies without issue , the remainder is void ; for although a remainder may be limited upon condition , yet the condition ought to be performed during the life of tenant for life . but if the condition had been that if he had issue during his life , that then it should remain , the remainder had been good , if he had issue , h. . . a rent granted to one for the life of a. the remainder to the right heirs of a. that cannot be during the life of a. and yet thought to be a good remainder ; for it vests in the same instant that the first estate determines . a remainder may be good to him that had the remainder before . tenant for life makes a lease for life , the remainder to his lessor , and a stranger in fee , some think the stranger shall take all ; for he cannot give a fee in any part to him that had a fee before . remitter . tenant in tail makes a feoffment and dies , the discontinuee makes a gift in tail , the remainder to the issue in fee , the second tenant in tail dies without issue , his wife enseint with a son , the issue in the first intail enters , the son is born , and enters upon him , and he brings an assize , it is maintainable ; for the remainder is limited to the issue in the first intail , and he by vertue of his remainder enters , then he is remitted , but dy. . makes it a quaere , but bendlows . he is remitted , and so is the inst . . h. . . if the disseisee enters upon the heir of the disseisor , and grants a rent charge and dies , the issue shall hold it discharged ; for though he hath the right form the same ancestor that granted the rent charge , yet he is remitted to another possession than descended to him . and if the heir of the disseisee enters upon the disseisor , and grants a rent charge , and the disseisee dies , because a new right is come to him , he is remitted , and the grantor shall hold it discharged . but if the son disseises the father , and grants a rent charge , and the land descend to him , the son shall hold it charged ; for he is not remitted ; for the right descended to him from the same person to whom he did the wrong , and he shall be disabled to claim a right from him whom he disseised . but in the other case he claims the right from another . if the father disseiseth the grandfather and dies , after he hath granted a rent charge , and the grandfather dies , the son shall hold it discharged ; for he claims from the grandfather , quaere ; for the entry of the grandfather was taken away , and then when the right of one , who cannot enter , descends , the tenant is remitted . quaere , but if there be lord , mesne , and tenant , and the tenant aliens in mortmain , the lord paramouns enters , and grancs a rent charge , and after his title is come , viz. the year past , and the mesne hath not entered , the lord shall hold it discharged , and his issue too , as it seems , for he shall not be remitted for a title , as he shall for a right accrued ; but it seems he may bar him upon whom he enters , if he brings an assize , and that by his title . grandfather , father , and son ; the father disseises the grandfather and dies , the son endows the wife of the father , the grandfather dies , the son may enter upon the tenant in dower , for he hath a new right descended from the grandfather , and the entry of the grandfather was congeable upon the tenant in dower , so shall the entry of his heir . but if the son had granted a rent charge , and the granfather had died , he should hold it charged , and should not be remitted ; for the entry was not lawfull upon him , and when a right descends from the grandfather , he shall not be remitted . if the issue in tail procure one to disseise the heir in by descent , against whom the heir recovers , and dies , the issue shall retain ; but if he himself had recovered against the disseisor , upon a title in being to him , he shall not be remitted . quaere , if his father disseisee dies , and he recovers a gainst the heir , or the disseisor , by a formedon , if he shall be remitted ; for the wrong was made to the estate tail at that time : and if one hath title to a formedon , and he procures one to out the tenant , to the intent that he may recover against him , and the stranger outs him , and a stranger recovers by a puisne title to the procurer , and the other recovers against him by a formedon , he is remitted . if two jointenants have title of action , where their entry is taken away , and the one procures a stranger , ut supra against whom they two recover , and he who was party dies , the other is remitted to all ; but if he which did not procure had first died , the other had not been remitted , but to a moity , quaere ? if the issue in tail within age by covin commands a. to disseise the discontinuee of his father , a. disseises him to the use of b. for life , and after to the use of his own right heirs , b. agrees , a. dies , b. dies , the heir of a. enters , and enfeoffs the issue ; he is remitted , because he is now within age . tenant in tail levies a fine , and takes back an estate in fee upon condition , and dies , the heir enters , and is remitted , and after the proclamations pass , if that takes away the remitter , and if the condition remains ? quaere . if two jointenants are disseised by the father of one of them , who dies seised , and his son enters , he is remitted to all the land , and his companion may enter with him : and it is not like where two are disseised , and a descent cast during the non-age of of one , and he enters , and is remitted to a moity , his companion shall not enter ; for the advantage is given him more in respect of his person than of the land . neither is it like where tenant in tail enfeoffs one daughter , and dies , she being within age , she is remitted , and her companion shall not have advantage of it ; for the right was not in them before . nor where they have a joint title of formedon by descent , and the land descends to one only , his companion peradventure shall not take advantage of it , for the estate tale was taken away , but here it was not . but if the grandfather had disseised , &c. and the land had descended to the father , and from the father to him , it will be otherwise , for his companion shall not have advantage , for the entry was taken away before . if the discontinuee makes a lease to the issue in tail and another , with livery to the other , and after grants the reversion to the issue , and the other dies , so that the freehold is cast upon the issue without his folly , yet he shall not be remitted ; for he assented to the reversion upon the lease for life . a disseisor dies without heir , his wife enseint , the lord enters , a son is born , the disseisee enters upon the lord : if the entry had been before the birth , it had been lawfull , and he had been remitted , and the birth after would not have avoided the remitter : as if the discontinuee makes a gift in tail to one , the remainder to the issue in tail , if the first donee dies without issue , his wife priviment enseint , now the issue in the first intail is remitted , and though the issue of the second donee be after born , the remitter continues ; but here the entry is not till after the birth of the son , for if a stranger had abated , the disseisor having issue , or if after abatement a son had been born , the disseisee could not enter . a disseisee , releaseth all actions to the disseisor , and dies , and after the disseisor dies , and his heir enters and dies , and the land discends to the heir of the disseisee , if he be remitted ? some say there can be no remitter where there is a cause of action , so that without his folly he hath not any body against whom he may bring his action , but though he hath no action here , yet he hath not lost it by the law , but by his own act , and the right remains , which is the cause of his remitter , and in many cases a right shall remain without an action , as if there be tenant for life of a seignory , and a tenancy escheats , and a stranger intrudes , tenant for life dies before entry , he in reversion cannot have any action , but may enter , as upon the disseisor , of his tenant ; but if he dies , and his heir be in by descent , there he cannot enter , and yet he hath a right , and shall be remitted upon a discent . if a fem tenant in generall tail marries an infant who aliens and dies , and his heir enters upon the feoffee , the wife re-enters , she is not remitted . tenant for life , the remainder in fee makes a gift in tail , the remainder in fee , he which had the first remainder releaseth all his right to the donee , without saying to his heirs , and dies , the donee dies without issue , the heir of him in remainder enters , if he be remitted ? if the disseisee takes an estate in fee from him who had the land by descent , he agrees unto it , and yet if he dies seised , his heir shall be remitted . the issue in tail within age having a title to bring a formedon , accepts from the discontinuee a bargain and sale inrolled , he shall not be remitted ; for he is in by the statute . tenant in tail , the remainder to his right heirs , makes a lease to the issue within age , upon condition to have fee at full age , during the term he performs the condition , he shall be remitted ; for the contract was during his minority . as if an infant delivers a deed as an escrowl , to be delivered as his deed when he comes of full age , and receives the money , yet he shall avoid the deed. vide release & condition . rent . lessee for life makes a lease for forty years , rendring a rent , the lessor confirms the estate of the second lessee , and then tenant for life dies within the term , the lessor distrains and avows for the rent , some think it is not maintainable . lord and tenant by homage , fealty , and rent , the lord grants his homage upon condition , reserving the rent , the condition is broken , he hath no remedy for the arrerages due before . tenant in tail discontinues in fee , and takes back an estate in fee , and grants a rent charge in fee , and dies , the lord seiseth the ward , the grantee distrains for the rent , and the lord makes rescous , and the grantee brings an assize , som e think it is maintainable . lessee for life makes a lease for ten years , rendring a rent , the lessee for years makes a feofment , he shall hold the land discharged of the rent , though it binds the lessee for life ; for the rent cannot indure longer than the reversion ; and though he had granted it to a stranger , yet had it been gone , and so it differs from the other , which is not in respect of the reversion . and if a man makes a lease for life , reserving a rent to the use of a. and tenant for life surrenders , the rent is gone , ass . . if the mesne grants the rent of the tenant , and the tenancy escheats , the rent is gone . a. makes a lease for life , and grants a rent charge , out of the reversion ; the grantee purchaseth the estate of tenant for life , who dies , and the lessor enters , if the grantee may distrain for all the arrerages from the time of the grant ? a rent is granted to commence after the death of the grantee , who dies , if his wife shall be endowed ? the father dies seised of a remainder , having two sons by two venters , the eldest son being tenant in tail of the particular estate grants a rent charge in fee , and dies without issue ; the second son enters , and an avowry is made upon him for the whole charge . if a man hath two daughters by two venters , or by one , he dies , and the eldest grants a rent charge , and dies , before entry into the land , some think the youngest shall hold all the moity charged ; as if one jointenant grants a rent charge and dies , the survivor shall hold all difcharged . if land be devised , reserving a rent , that is a void reservation ; for the reservation of the rent cannot be good ; but in respect the reservor might take advantage of it by possibility ; and the heir cannot have that which the ancestor could not ; for if a re-entry be reserved to the heir it is void . if tenant in tail holds by rent , and the donor grants the services of the donee , nothing passeth , though there be atturnment ; for the rent cannot passe but as a rent service ; for if there be lord and tenant by rent and fealty , and the lord grants the services saving the fealty , nothing passeth ; for it must passe as a rent service ; for it is granted by the name of services ; for a rent seck , or rent charge cannot passe by that word . quaere , if the sueing be not void for the repugnancies , and as a rent service it cannot passe ; for then the donee should pay one fealty to the grantee , and another to the donor for the reversion , and so the donor should charge him with two fealties , which cannot be , no more than the lord can grant the moity . tenant for life grants a rent charge in fee , and after he and the lessor make a feoffment of all their land in such a town where the land lieth , and make a letter of atturny to make livery , yet the rent indurcs but for the life of tenant for life ; for it is but a grant of the estate of tenant for life , and also of him in reversion . but if they had made a feoffment of that land only , then the rent should endure for ever ; for it is the feoffment of tenant for life , and the confirmation of him in reversion . quaere , for the deed is first delivered ; and after the livery is made , and the reversion passeth by the delivery of the deed ; for it is an atturnment of the tenant for life by the delivery of the deed. if a man reserve a rent upon a lease for life , he hath not a fee in it ; for his wife shall not be endowed , but if lessee for life grants a rent in fee , a fee passeth : for by possibility it may endure for ever ; that is , if the lessor confirms it . but if tenant for life grants a rent in fee to the lessor , who grants it over , yet he shall avoid it after the death of tenant for life ; for it cannot be a confirmation though it were granted by dedimus & concessimus ; for the grantee had not possession of it before , and one and the same word at the same time cannot amount to a grant and a confirmation also . and therefore if a disseisor grants a rent charge to the disseisee , and he grants it over , and after re-enters , he shall hold it discharged . if tenant pur auter vye grants a rent charge in fee , and after he hath the reversion by descent , or release , & cesty que vye dies , he shall hold it discharged ; but if after the fee was vehe had made a feoffment , the feoffee should not have avoided it after the death of cesty que vye . a seignory is granted for years , the rent being arrear , the tenant dies , the years expire , the heir shall not be charged as heir in debt , if the father did not bind himself and his heirs by expresse words , and the executors shall not be charged ; for they were not chargeable with it at the death of the testator ; for at that time the grantee could not have had an action of debt for it ; but he must have distrained , and so the lessee is without remedy . if a rent be granted to one and his heirs , and if it be behind , that he shall distrain for the life of a. during the life of a. it is a rent charge , and after a rent seck , and some think that seisin of a rent charge is sufficient to have an assize for a rent se●k . if a reversion be granted rendring a rent . quaere , what rent it is during the particular estate , but after the particular estate be determined , it is a rent service . if a rent be granted out of two acres , and if it be behind , that he may distrain in one , that is but a rent seck ; for it is but one rent which cannot be wholly a rent charge ; for the other acre is not charged , and the distress is but a penalty . and if a rent in fee be granted , and if it be behind two years , that the grantee may distrain , now it is not a rent seck during the two years , but a rent charge distrainable after the two years . and if a rent be granted to one , and if it be behind , his heirs shall distrain , the distress is void ; for there is not any such person in rerum natura , and it shall never be a rent charge because it was not one at the beginning , but if the distresse had been limitted to a person in esse , then it should have been a rent charge , as e. . . if the lord grants his seignory , reserving a rent , the seisin before will not be a sufficient seisin of it . if a rent be granted to two , and if it be behind , that one may distrain , that is a rent seck for one moity , and a rent charge for the other moity , because one hath another benefit than the other . if a rent be granted for life , and by another deed the grantor releaseth all his right in the rent to the grantee , and if it be behind , that he and his heirs shall distrain , although the heir shall have it by distresse , as it is adjudged in h. . . yet the wife shall not be endowed ; for it is yet but a rent seck , and the distress but a penalty , and it is no new rent which commences after the death . for if a rent be granted for life , and by another deed the grantor grants , if the rent be behind he shall distrain the remainder in fee , the remainder is void ; for he doth not take such an estate which will support a remainder . if a rent be granted our of the mannor of d. and if it be behind he shall distrain in the mannor of s. the grantee purchaseth the mannor of s. yet the rent remains , and if he doth not purchase all the mannor the distress shall remain in the rest , and yet the penalty was a thing against common right . tenant in tail makes a lease for forty years , reserving a rent , and after dies , the heir suffers the lessee to continue in two or three years , and then outs him , he hath no remedy for the rent arrear after the death of tenant in tail , no more than the lessee hath for the arrears incured after the breach of a condition , where he hath entred for the breach of the condition , and it seems he shall not have an action of accompt against him as bailiff of the land. a rent seck is granted for life , and after the grantor confirms his estate , and if it be behind , that he and his heirs shall distrain , it is a rent seck stil for life , and the grantee hath the rent charge in fee in remainder ; for he hath not two rents . as if the lord of a mannor grants the homage and fealty of his tenants , saving the rent , it is a rent seck , and shall be parcell of the mannor , now if the tenant will grant to the lord , that he and his heirs shall distrain for that rent , yet the rent is parcel of the mannor , and the distresse but a penalty , but if it were a rent charge , it shall not be said parcell of the mannor , because it shall commence but now . if the lord grants the rent of his tenant to one for life , saving the seignory , and then grants the seignory and reversion of the rent to the grantee , yet it must be a rent seck during the life of the grantee , and after a rent service ; for the reversion of the rent , which was a rent service cannot drown the freehold of the rent , which was of another nature , no more can the reversion of the rent charge drown the freehold of the rent seck in the principal case . but in the last case , if the grantee had re-granted the rent seck to the grantor , who had the reversion , that will operate as a surrender . quaere , what diversity where the reversion comes to the freehold , or the freehold to the reversion ? if a rent be granted out of two acres , and if it be behind , that he shall distrain in one , that is not a rent charge in any part ; for the distresse is not limitted out of all the land. if twenty shillings be granted out of the mannor of d. and if it be behind , that he shall distrain for that twenty shillings , and another twenty shillings out of the mannor of s. the first twenty shillings is but a rent seck , and the distresse a penalty , and the last a rent charge in the mannor of s. but if one grants a rent out of the mannor of d. and if it be behind , that he shall distrain in d. and s. that is a rent charge in the mannor of d. and a penalty in the mannor of s. if a rent be granted to one for the life of a. and after the grantor grants by another deed , that he shall distrain for his life , with a remainder in fee , that is a good remainder , if the first rent be determined , but if the distresse be appointed for the life of a. or b. it is otherwise ; for it is but a penalty , but in the other case the estate is given also , though it be a penalty during the time of the appointment of the determination of the first rent . if twenty shillings is granted out of d. and that the grantee and his heirs shall distrain for that twenty shillings , and other out of the mannor of d. and s. for the first twenty shillings it is a rent charge in d. and a penalty in s. and for the other it is a rent charge in both . if a rent be granted out of two acres , with a distresse in one , and after the other is recovered by an eigne title , it shall be a rent seck , as it was before ; for it cannot be now a rent charge , if it were a rent seck before . if a rent reserved upon a lease for life be granted over , and after a recovery is had in wast , yet the rent remains , as if the lord grants the rent , reserving the homage , the rent remaines after the escheat . a rent is granted in fee out of land in borough english , and at common law the grantee dies , having two sons , the eldest shall have all ; for the rent is intire , and so not apporcionable , then the eldest , being he is heir at common law shall have all , as an assize at common law is maintainable for a rent granted out of ancient demesue , and other lands , h. . . p. ashton . if a rent be granted in fee , and the grantee grants it for years , the grantee hath no remedy if it be denied ; for the election to have an annuity is only given to the first grantee and his heirs , and the election runs in privity , which fails in the second grantee . if a rent , incident to a reversion , be granted for years , saving the reversion , the grantee hath no remedy ; for he shall not have an action of debt , though the lease out of which the rent issued was for years ; for there wants privity . if a lease be made to two , habendum the one acre in fee , and the other for life , reserving a rent . quaere , how the lessor shall avow , but his executors are not aided by the statute of h. . if a lease be made of two acres , reserving a rent for years , and then the reversion of one acre is granted , the rent shall be apporcioned ; for as the contract is made in respect of the reversion , so it shall be severed in respect of the reversion . a rent charge is granted in tail to the vse of a. and his heirs , the rent is behind , the donee dies without issue , a. brings an action of debt for the arrerages . if the parson and ordinary grant a rent charge out of the glebe to the patron , the successor shall avoid it ; for the assent of the patron ought to be expresse , and of the ordinary also where the successor must be bound , and it is but implied here , but the best way had been to have granted it to a. and he to have granted it to the patron ; and in the first case if the patron grants it over , that is no full assent , but the successor shall avoid it . if tenant in tail grants a rent charge in fee , and makes a lease for forty years , and dies , and the issue accepts the rent , the grantee shall have the rent during the lease and the life of the issue , although the lessee surrenders , quaere , for the reversion is discharged . if tenant in tail grants a rent in fee , and dies , and the issue having a wife dies before entry , his wife is endowed , she shall hold it discharged . if the father disseises the son , and grants a rent charge , and the son endows his wife ex assensu patris in the same land , the father dies , the son dies , the wife enters , she shall hold it charged , for she claims from the possession charged . and if tenant in tail grants a rent charge , the abator shall hold it charged . if the father disseises the son , and grants a rent charge in fee , and makes a lease for years , and the son confirms the lease , and the father dies , the rent is gone . so if a man grants a rent in fee , and makes a lease for years , and grants the reversion to the king , or to the grantee , the rent is gone . if a lease be made of two acres in one county , rendring a rent , and livery is made in both severally , yet it is but one rent , though one acre passed by the livery before the other . lessee for twenty years makes a lease over , and makes a lease of other land , in which he hath an estate in fee simple for twenty years , reserving a rent , without deed , the whole rent doth issue out of the lands in which he hath an estate in fee ; for being he hath granted all his right over in the other land , it cannot be a reservation out of that . if a mangrants a rent for life , and after by another deed grants , that it shall be lawfull for the grantee and his heirs to distrain for the same rent , that shall be intended a rent of the same value ; for that rent is determined by the death of the grantee . as if the king grants to the mayor and commonalty of d. the same liberties which the mayor and commonalty of london have , that shall be construed liberties of the same nature , if a man grants to me , that whereas he hath made a lease for forty years to a. that i shall present to the advowson which the lessor hath during the same term . if a. surrenders the mannor , yet i shall present ; for when my grant was during the same term , that is to be understood during the like time . if the patron and ordinary give license to the parson to grant a rent in fee , if he does it , that will bind the successor according to the opinion of h. . . but if a confirmation had been made to the grantee before the grant , that had been void ; and the diversity is this ; for in the first case there was nothing requisite but an assent , which may be before the act is done , and therefore it is said , that if a bishop makes a gift in tail by deed , and the dean and chapter confirm the deed , et omnia quae in eo sunt , according to the usuall confirmation in those cases , and after livery is made , that was holden by all the justices to be a void confirmation ; for the assent was not but to the deed , but the confirmation ought to be after the estate made , and so a diversity . if a rent seck be granted to a. for life , and after it is granted , that he and his heirs shall distrain for it during the life of the grantee , it is still a rent seck , though he may distrain for it , but the heir shall distrain for it and take it by descent . a. makes a lease for life , reserving a rent in fee , and then grants the reversion with atturnment ; and reserves the rent in fee , and dies , the rent is gone ; for it is reserved out of an estate for life only . so if tenant in tail of a rent grants it in fee , that is no discontinuance ; for it is granted but during the life of the grantor . if a. makes a lease for life , reserving a rent , the remainder for life , the lessor grants the reversion to him in remainder , the first tenant for life atturns , he shall not have the rent ; for the fee simple drowns the remainder to some purposes , but as to this it is in esse . a. grants a rent charge in tail , and enfeoffs the grantee of the land , who gives in tail , reserving to him so many services as he pays over to the lord paramount , and dies , the issue shall not have a formedon of the rent , being he hath the reversion ; for the land is discharged at the time of the gift in tail , e. . scire fac . lessee for twenty years makes a lease for ten years , who purchaseth the reversion with atturnment of the lessee , the executor of the lessee for ten years , shall not have the residue of the term , but the heir ; but he shall pay the first rent reserved to the lessee for twenty years in nature of a rent charge granted by him ; for the term is in esse as to that purpose , but it seems the first lessee may distrain . if two parceners are seised in tail , and one grants a rent to the other for equalty of partition , she shall have an estate tail in the rent , h. . . and note that the estate in the rent shall be of the same nature of the estate received , and not of the nature of the estate out of which it issues . as if there be two parceners of one acre in fee , and of the other in tail , and upon partition she which hath the acre in fee grants a rent to the other , that rent shall be in tail , and not in fee , but if she which hath the acre in tail grants a rent to the other , that shall be in fee ; for if she dies without issue , her heir shall have it as long as the other hath issue of ber body . but if there be four acres in fee , and one in tail , and she which hath the four acres in fee grants a rent to the other , that shall be in fee , quia sequitur magis principale . if the lord grants the rent , saving the seignory , and the tenant is after disseised , and atturns , this is void , for it is now a rent seck , in which there is no attendancy , but a charge to the land. if a man grants a rent , reserved upon a lease for life , saving the reversion , it is a good rent seck , if the tenant atturns . but if there be lessee for years , rendring a rent , and the rent is granted over , saving the reversion , that is void ; for debt cannot lie by the grantee , and he cannot have any other action . if the feoffec upon condition pays twenty shillings to the lord , whenas the tenure was by fine , the feoffor after his entry for breach of the condition is bound in a replevin . so if lessee for life with condition to have fee , and the lessor pays more rent to the lord than he ought , and after the condition is performed , the lessee is bound in a replevin . so if a seignory of twenty shillings is granted over by fine , and the tenant aliens over , and after pays forty shillings to the lord , the feoffee is bound . if a lease be made for life , rendring the first four years a rose , and after a yearly rent of twenty shillings , and the lessor grants the rent of twenty shillings to commence after the four years , this grant is void ; for the rose and twenty shillings are all one rent , and if the grant should be good , the grantor should have the rose for four years , whereas before he had the freehold , and then it is as if one had a rent in fee , and grants it over after four years , that grant is void , otherwise of a rent created de novo . if a man hath a rent in fee , and becomes tenant by the curtesie of the land , and dies , his heir shall have a mortdancester of the rent , which he could not have had if his ancestor had not died seised . so if an assize be brought against the pernor of a rent , and after the plaintiffe is nonsuited , the disseisee of the rent is chased to his action for the rent ; for the dying seised takes away his entry , viz. where the pernor had an estate for life in the tenancy . lessee for twenty yeares makes a lease for ten years , reserving a rent , and after makes a lease to the same lessee for ten years , to begin after his first estate ended . it seems that the first lessee shall have the rent during the first ten years , as a rent service , and distrain for it ; for the last ten years are not out of the first lessee , nor vested in the other , neither shall they , untill the beginning of the term , and in the mean time he hath but a right or title to the term. if tenant for life , and he in reversion grant a rent charge , and the grantee releaseth all his right to him in reversion , if the rent be extinct quaere . if a lease be made of two acres , rendring a rent upon condition to be performed by the lessee , that he shall have fee in one acre , not saying in which , and livery is made of both , the lessee performs the condition , what rent the lessor ought to have ? quaere , or if it shall be apporcioned , being part of the reversion to which the rent is appendant is in the lessee , and by an act that had relation : so that it may now be said , that the rent was never reserved out of that acre , which seems to be of the same effect as if there had been a gift made of two acres , the one in fee , and the other for years , rendring a rent , in this case it shall be of one only acre ; for he may distrain of common right , and out of the other acre no remedy until after seisin . also in the said cafe if the lessor will distrain in one acre , the lessee shall take his election , viz. he shall say that he hath fee in that acre , and so exclude the lessor . the son makes a lease to the father for life , who makes a lease to a. for life , the remainder in fee to the son , the son grants a rent charge out of the remainder , and releaseth to a. in fee , the father and a. die , if his issue shall hold it charged ? first , it seems that the right fee is devested , and a tortious vested all in the same lastant . as if tenant in tail makes a lease for life , &c. or the husband makes a lease for life of the wives land , &c. then in the first case , the rent being granted out of the reversion , it is the same as if it had been granted out of the remainder ; for they differ not in substance . and when the son releaseth to a. and his heirs all his right ; that doth not inure as an entry and feoffment , because a. was in by title , without disseisin , then that doth not give unto him the remainder , as if he had released all his estate in the land , or all his right , habendum the land in fee , but here he had the right and the estate , and then a release of right doth not inure to the estate , then if the release doth not perfect the remainder , if the grant of the rent , which is an assent to the remainder , doth so inseperably unite the remainder and the rent , that the right shall be drownd in the estate for the preservation of the rent ? and some think not ; for if the disseisee takes an estate in fee from him who hath the land by descent , he agrees to it , and yet if he dies his heir shall be remitted , and so the rent charge avoided . but others think that being by the grant of the rent charge he hath agreed to the remainder , and so to the livery , he cannot after enter upon the tenant for life , and then the release gives the remainder , and so the land is charged . where a woman shall be endowed of a rent , vide dower . if a rent seck be granted , and after it is granted that he may distrain in the same land , and after the grantee brings a writ of annuity , if he may dristrain after . quaere , viz. if there be one or two rents ? a rent charge is granted out of two acres , the tenant of the land conveys away one , the grantee of the rent may distrain in one or the other : but if one tenant pay the rent , if the other be distrained he may plead payment by his companion . a fem hath a rent seck and marries , the tenant grants to the husband , that he and his heirs may distrain for the rent , the husband & wife die without issue , the distress is extinct ; for the heirs of the husband are only privy to distrain , and they cannot distrain so ●● rent due to another . but if a man hath a rent on the part of his mother , and the tenant grants that he ●● his heirs may distrain for the rent , and he dies without issue , there the distresse shall go to the heirs on the part of his mother , and if they grant the rent to distranger the may distrain . but if the tenant grants to the lord of the mannor that he shall distrain , ut supra , and he aliens the mannor , the alience shall not distrain out of the mannor , and in that case the penalty of the distresse is gone , but in the other case , the grante being of a distresse in the same place out of which the rent issues , this is now a rent charge , and by consequeuce the distresse shall passe to the grantee : but if the grant of the distresse had been in another place , then it had been but a penalty , and could not have gone to the heir on the part of the mother , non to the assignee of the same rent , and therefore the penalty being severed from the principall by act in law , or in deed , the penalty shall cease . vide parceners , lease , atturnment . reservation . if a rent be reserved to the lessor , he shall have it but during his life ; for it was not reserved longer . and if it had been ceserved during forty years he should have had it no longer . but if the rent had been reserved generally , and not expressed to whom , that shall be to the m●●ssoc and his heirs ; for the law will direct it . if lessee for twenty years makes a lease for ten years , reserving a rent to him , his executors shall have it ; for they represent the person of the testator . if a gift in tail be made reserving , during the life of the donor a socage tenure , and after knights service , that is a good reservation , and it shall be according to the words , and his wife shall be endowed of the knight service . if a lease for life be made , rendring a rent for the first seven years , he shall have an assize for it ; for it is adjudged in e. . . that an action of debt will not lie for the rent . dy. . a. spilman cont . although littleton saith a man cannot reserve a rent but to the lessor or his heirs , yet if a man makes a lease , rendring a rent to his heir , that is a void reservation ; for his heir shall take as a purchase , and is as a stranger . but littleton is to be understood so , that the disjunctive must be taken for a copulative . if a feoffment be made of a mannor , reserving to the feoffor an acre for twenty years , the feoffor hath a fee in it , and nothing passeth of it ; for it cannot passe by the livery , and he cannot passe it to himself , or reserve it for a certain time ; for then he should have a lease for years without a lessor , which cannot be . if a dean and chapter make a lease , reserving a rent to them , their successor shall have it because they never die . if a man upon a gift in tail reserve socage tenure the first ten years , and after knights service , within the ten years the donee dies , his heir within age , if he shall be in ward during the first ten years , or after , if they expire during his nonage ? if a feoffment be made of a mannor , reserving one acre , that is a good reservation ; but if a feoffment be made of twenty acres , reserving one acre , that is void . if a lease be made of land and wood for life , rendring twenty shillings rent , viz. ten shillings for the land , and ten shillings for the wood , the rents are made severall . if there be lord and tenant by fealty and twenty shillings rent , and the tenant makes a gift in franckmarriage to hold of him by fealty only , untill the fourth degree be past , and after that by twenty shillings , and knight service , in that case , after the four degrees he shall neither have the twenty shillings , nor the knight service ; for though he reserved but fealty until the four degrees were past , yet it is an intire reservation presently , and the services be in him although they be not to be performed untill the four degrees be past , and seifin of fealty shall be a seifin of the remnant , wherefore being the reversion is intire , that is the reason that it is void . for all cannot be reserved upon the gift in frank-marriage . if a man makes a lease to two , habendum the one moity to one , the other to the other , reserving one hauk , or a lease pur auter vye to a. and a dean and chapter , reserving one hauk , or if the land the beginning goeth two severall ways , and but one hauk , is reserved , he shall have no more . reversion . if one acre be given in tail , which is holden in socage , and another acre which is holden in chivalry , saying nothing , the donor shall have severall services , and make severall avowries , though he hath an intire reversion ; for the law makes the avowries in respect of the tenure over ; and he holds the reversion of one acre of one , and of the other acre of another , and they shall escheat severally . if a reversion be granted to tenant for life and a stranger in fee , the jointure of the fee is severed ; for the tenant for life hath a fee simple in the moity vested presently , but if the reversion had been granted to tenant in tail and a stranger , there the jointure remains . but if the husband be tenant for life , and the reversion be granted to him and his wife , the fee remains in jointure ; for there is no moities between them . a lease is made for the lives of a. and b. the lessee makes a lease for the life of a. only , he hath the reversion notwithstanding the lease ; for he hath given a lesser estate than he had , if the second lessee dies , living a. an occupant shall have it , but others think the contrary ; for he had not before but one freehold , and by the lease to the second lessee he hath departed with the freehold , and the reversion of the same freehold cannot be in him . but if a lease is made to me for the life of a. the remainder to me for the life of b. and i make a lease for the life of a. only , i have a reversion for the life of b. for they were two estates , but here was but one estate , and all that grant was irrecoverable if a. survived , then the possibility of the surviving of a. doth not make a reversion in the first lessee . but it is as if i am lessee for the life of c. and i grant my estate upon condition , that if d. dies , living c. that i shall re-enter . i have no reversion notwithstanding this condition ; for if the condition be sufficient for me to enter upon an occupant . quaere . if the bastard endows the wife of the common ancestor . quaere , in whom the reversion shall be ? if tenant for life surrenders upon condition , and the lessor marries , and dies , and the wife is endowed against the heir , and after tenant for life enters for breach of the condition , and not by the wife , and no default in the heir , yet the wife shall not have the reversion of the land after the death of tenant for life : for the freehold which was the cause of her dower was taken away by an eign title . if a lease be made for life , reserving a rent , and the reversion is granted to the lessee for his own life , the grant is void , and he shall pay the rent ; but if the grant of the reversion to another for the life of the lessee , that had been good ; for he shall have the rent and take a surrender without livery . a lease is made to a. and b. fortheir lives , and after the reversion is granted to c. during the lives of a. and b. they make partition and a. dies ; the question is , if the first lessor shall have his part after his death , or c ? some think the grant of the reversion was good ; for if the tenant for life had entred into religion c. should have the land , quaere , of this forreign intendment ; but if the reversion doth passe , the rent shall passe as a rent service . and if the first estate had been upon condition , to cease , c. should have had it during their lives , then it seems the partition severs the reversion ; for though by the first grant he was intitled to have the reversion so long as either of them lived , that was in respect of the jointure , and when that is severed , so is the reversion , so that the first lessor shall have it after the death of tenant for life , and not c. quaere ? if a lease be made for twenty years , rendring a rent , and the reversion is granted for ten years , that is a good grant , and he shall distrain for the rent , quod nota . if husband and wife accept a fine , sur conusans de droit come ceo &c. of the wives land from b. and they render it to him in tail , yet the reversion is in the wife only ; for the husband had nothing but by reason of the coverture . if the donor confirm the estate of the donee in tail , that is a grant of the reversion in law. a recovery is had against tenant for life upon a false oath , he in reversion dies without heir , tenant for life brings an attaint , and reverseth the judgement : to whom the reversion is recovered , is the question ? vide remainder . reviver . if the tenant makes a lease for years to the lord , and he makes a lease for life , and the tenant enters , the seignory is revived after the death of the tenant for life , notwithstanding there was a disseisin , and the lord was the disseisor by the statute . if the tenant enfeoffs the lord upon condition , and enters for the condition broken , the seignory is revived . but if the lord grants his seignory in fee to one who hath the tenancy with a condition , and after the feoffor enters for the condition broken before or after , the seignory is gone in both cases . if the lessor recovers in wast against the lessee for life , who comes to the seignory after the wast committed , the seignory shall be revived : but otherwise if wast had been made after the seiguory accrued . if after a dissent the disseisor comes to the possession again , the entry of the disseisee is revived . if a bastard dies seised , leaving issue , who endows his mother , the mulier may enter ; for the wife is endowed by an eign title , and so the right is revived . if a disseisee enters upon a dissent , and dies seised , and the heir endows his mother , the entry of him who was in by descent is revived . if the tenant enfeoffs the heir of the lord upon condition , the lord dies , the condition is broken , the seignory is revived . if the grantee of a rent charge in fee grants to one , that if he pays to him or his executors twenty shillings by such a day , that he shall have rent in fee , the grantee dies without heir , the second grantee pays the money to the executors according to the appointment , the rent is revived . a. having common sans number in tail in two acres , purchaseth one acre , and then hath issue , and dies ; so that the common in one acre desdescends to the same issue , if the common shall be revived in the other ? if the issue had recovered one acre against the grantor by a title before the grant , there it shall remain in the other acre ; for then it is as if but one acre had been charged at the first ; but upon a dissent there can be no apporcionment ; for it is gone and suspended for all , or revived in the residue for all ; for common without number is intire , and cannot be severed , but common certain may be apporcioned upon a dissent . if the lord disseises his tenant , and is disseised , and the tenant enters , the seignory is revived . if tenant for life aliens in fee to the grantee of a rent in fee by his lessor , and the lessor enters for a forfeiture , the rent is revived . seisin . lord and tenant , the lord having a son dies , the tenant makes a feoffment , the son hath seisin of the rent by the hands of the feoffee ; if this seisin be sufficient for the son to maintain an assize against his disseisor after ? severance of the jointure . if two jointenants make a lease for life , and after one grants his part to a stranger for the life of the lessee , some think it is a severance of the jointure . if two women jointenants be mesnes , and one of them marries the tenant , the moity of the mesnalty is suspended , and the jointure severed . vide jointenants . statutes . the husband is bound in a statute merchant , & after he and the wife levy a fine of the land of the wife to a. the husband dies , the statute shall not be extended in the hands of a. for nothing thing passed from the husband but the estate which he had during the coverture , which is determined by his death ; and a. shall have the same benefit which the heir of a. should have had , or as he should have if the wife had been discovert , and had granted it ; for it is lawfull for a fem covert to grant her estate by fine , and then it would be against reason , that the grantee of the wife should not have it with the same advantages which the wife should have . but if the land had been in execution , then it had been unavoidable , because it had been executed . if tenant for life and he in reversion levy a fine , it shall be lyable to the statute of tenant for life during his life only , and never shall be lyable to the statute of him in reversion ; for though the words of the fine be joint , yet he may avoid it by shewing the truth of the matter . so in the principall case he may shew that the estate of the husband was during the coverture only . if the grantee of a rent charge dies without heir , the land shall be bound with a statute merchant entred into by him ; for though it be determined , yet the determination shall not have relation ; for if the tenant be bound in a statute , and dies without heir , it shall be extended against the lord by escheat . and if one manumits a villain , a statute in which he was bound shall be executed upon him , if the writ of execution did issue out against him before . land whereof a man hath onely seisin in law shall be lyable to a statute . the conisor of a statute is in execution and his land also , the conisee releaseth to him all his debts , the execution it discharged ; for the debt remains untill it be levied of the profits . if the son be tenant in tail , the remainder to the father in fee , the father is bound in a statute , and dies , and the remainder descends upon the son , he aliens in fee , or suffers a common recovery , the land is lyable to the execution presently . as if the lord had recovered in a cessavit against tenant in tail with a remainder over , being charged , the land in the lords hand shall be lyable to the statute of him in remainder presently , as it shall be to the grant of a rent by him , though as a remainder it was not lyable . surrender . lessee for forty years makes a lease for ten years , rendring a rent , the first lessee surrenders , and the lessor brings debt against the second lessee . quaere . if lessee for years makes livery , as atturny to the lessor , it was ruled in eliz. in c b. to be no surrender . tenant for life cannot surrender to him in remainder for years ; for he hath a freehold in possession , which cannot drown in a chattle . if a lease be made to commence at easter , and before easter the lessee takes another lease to begin presently , if that be a surrender ? some think it is . a lease is made for ten years , and after another lease is made to begin after the first lease determined , the first lessee surrenders , the second lessee may enter , otherwise if the reversion had been granted for ten years . a lessee cannot make an actual surrender before entry . if a lease be made for years , the remainder for years , the remainder to the first lessee in fee , he in remainder may surrender to him , and yet he hath nothing in possession . so if there be lessee for years , the remainder for years and the fee descends to the first termor , he in remainder may surrender if a. makes a lease for years to b. to begin at michaelmas , and before the day he enfeoffs b. b. dies before the day , and his son enters , if the executor may enter upon the heir is the question ? tail. a dies leaving issue , two daughters , land is given by deed in tail to the youngest , and to the heirs of the body of the father begotten , and she hath issue and dies , and the issue brings a formedon against the eldest daughter : the question is what estate the daughter took ? tenant in tail in vse , the remainder unto his right heirs , enters upon the feoffees , and makes a feoffment , and takes back an estate in tail , the remainder to his right heirs , and after the stat. of h. . is made , and he dies , how the issue may avoid the second estate tail , and take the first is the question ? it seems he cannot take the first estate in tail by no means ; for when he entered upon the feoffees , and made a feoffment , then the remainder in fee was not in him , yet by his feoffment a fee simple passed not determinable by his death , but defeasible by the entry of the feoffees , then the fee simple must needs pass being he had the vse to his right heirs , then when the stat. of h. . was made , the vse not being in esse , but the right of an vse , the possession is executed according to the right of the vse , and then when he dies there is no remitter to the estate ; for that was not in esse . a gift in tail is made with warranty accordingly , the donee releaseth the warranty to the donor , and after the reversion is granted , and the donee atturns . if the issue in tail be impleaded he shall not vouch ; for the release hath extinguished the warranty for ever ; for the statute speaks of tenements , and a warranty is no tenement , but a covenant reall which is extinguished by the release , as if an annuity be granted in tail , a release of the donor extinguisheth it . if tenant in tail makes a lease to begin at easter , reserving a rent , and dies , and the issue in tail enters , and makes a feoffment before eastar , the feoffee cannot avoid the lease ; for the lease was not avoided by the entry of the issue . a lease is made for years , the remainder in tail , he in remainder grants it over in fee , the lessee atturns , the years expire , the grantee enters , and dies seised , tenant in tail dies , his issue may enter ; for the grant was not but for the life of tenant in tail , and then he did not die seised in fee , & if the dying seised had been after the death of tenant in tail , it should not have taken away his entry . tamen quaere . but if the issue of the issue of the grantee had entered , and died seised , there his entry had been taken away , and if tenant in tail enfeoffs the donor , who dies seised ; by most , that dissent will take away the entry of the issue . tenant in tail makes a feoffment , and dies , the feoffee makes a lease for life , and grants the reversion to the issue , he shall not have a formedon against tenant for life ; for he hath assented to the reversion . but if tenant in tail makes a lease , pur auter vye , and dies notwithstanding the dissent in fee of the reversion , the issue shall have a formedon ; for the reversion is waived by using the action . if donee in tail to him and his heirs males , the remainder to him and the heirs females of his body , makes a lease for years , reserving a rent , and dies without issue males , if the heir female accepts the rent she shall be bound ; for the lease was derived out of both their estates , and she comes in by descent , but if the heir male had made a lease and died without issue , the heir female cannot make that good by acceptance . if tenant in tail of a seignory , to which a villain is regardant , makes a lease to the villain for one and twenty years , according to the statute , and dies within the term : if the issue being remitted to the freehold of his villain may enter into the mannor , and out the villain ? tenant in tail of a seignory purchaseth the tenancy , and before the stat. of quia empto makes a feoffment thereof , reserving a new rent and dies , having issue , the issue of necessity ought to have the last seignory ; for that suspends the first . as if the lord being tenant in tail purchaseth the mesnalty in fee , the issue of him in whom both are suspended ) cannot distrain for the rent of the seignory , and choose to have that by descent ; for the mesnalty by descent cast upon him is not waivable ; for notwithstanding any act that he can do to wave it , yet the freehold & fee remains in him before which another hath that by pernancy , but it seems if any takes it before the issue makes an act to shew that he will discent to it , then he may distrain for the seignory . as if tenant in tail of a seignory purchaseth the tenancy and dies , the issue may distrain if another enters into the land before him , but if he enters , and after another enters upon hi● he cannot distrain after . tenant in tail , the remainder to his own right heirs , makes a lease to the issue within age , upon condition to have fee , and at full age , during the term he performs the condition , and after grants a rent charge , and the grantee is seised , and disseised , and brings an assize , and pending that tenant in tail dies , the assize is now abated by the remitter , though the performance of the condition was at full age ; for the contract was during the minority , which is the ground , and the issue shall avoid the charge . the donor disseiseth tenant in tail and dies , tenant in tail and the heir , who is in by descent make a lease to the issue within age for life , the remainder in fee : tenant in tail dies , although the issue be remitted , yet the remainder is good ; for it was once executed , and the remitter comes after . tenants in common . if the reversion be granted to tenant for life and a stranger in fee , the jointure is severed ; for the tenant for life hath the feesimple in the moity executed presently . but if the reversion be granted to tenant in tail and another in fee , the jointure in the eee remains , but if the husband be tenant for life , and the reversion is granted to him and his wife , the fee remains in them in jointure ; for there are no moities between them . if a lease be made to two , habendum the one moity to one , and the other moity to the other for life , and after a confirmation is made to them and their heirs , the jointure of the fee is severed and they are tenants in common thereofasthey were of the frehold ; for a confirmation inures according to the nature of the estate on which it inures , and doth not alter the estate , h. . . but if the reversion had been granted to them in fee they had been jointenants of the fee presently ; for their fee in jointure drowns their severall estates of freehold . but if there be tenants in common for life , and two jointenants of the reversion , and one of them purchaseth of one tenant for life his estate , and the other of the other , the jointure is severed ; for when one of them purchased the estate of one tenant for life , he had the moity of the fee executed to the moity of the freehold , and by that the jointure was presently severed , but in the other case they come to the reversion at one instant , and that is the diversity . land is given to baron & fem , habendum the one moity to the husband , the other moity to the wife , and after the land is confirm'd to them in speciall tail , reserving a hauk , the donor shall have two hauks , for the husband had the one moity of the inheritance , because his possession was severed from the possession of his wife , so that of that moity the husband is seised in his own right in speciall tail , and the wife hath nothing in it . then of the other moity whereof the wife was tenant in common with her husband , the husband is seised in right of his wife , which is a sufficient estate , whereupon a confirmation may inure . if land be given to the husband for life , the remainder to the wife for life , and their estates are confirmed in tail , the husband shall have one moity in tail only , and he and his wife the other moity : and yet the estate tail is not executed for any part . quaere , for it is a good moot case . if land be given to two , and the heirs of their bodies begotten , and the donor confirms the land to them in fee , they are not jointenants of the fee : for the estate tail was executed to such purpose , and so the confirmation inures severally . if tenant pur auter vye be of a tenancy , and the seignory is granted to him and another in fee , the jointure is severed presently , and if cesty que vye dies , yet the seignory is not in jointure ; for it was so at the first . but if a seignory is granted to two in fee , and after one accepts the tenancy , pur auter vye , and cesty que vye dies , now the jointure remains , because it was joint at the beginning . if land be given to a. and a dean and chapter , and his successors , and livery is made to a. in the name of both , nothing vests in the dean because they take it severally , and in common , by reason of their severall capacities , and so no privity between them ; for a release to one tenant in common will not inure to his companion , but if the discontinuee in tail enfeoffs the issue in tail within age and another , and makes livery to the infant in both their names , though the infant shall be remitted for a moity , yet the other takes a moity , and they shall be tenants in common ; for their capacities are not severall , but they take severally by operation of the law ; for first it vests , and then he is remitted . tenant by the curtesie . if there be tenant by the curtesie of an advowson , and he in reversion is presented by a stranger , his heir shall not avoid it ; for it was during the life of tenant by the curtesie , and he shall not be said to be tenant for life , and the stranger has gained the patronage , and he was not but an atturny to convey it to him . if the tenant marries the seignoresse , or the seignoresse takes an estate for life of the tenancy , and after marries , the husband shall not be tenant by the curtesie ; for the freehold of the tenancy was in suspence , and then he could not be tenant by the curtesie of such a reversion . but if she had taken an estate for years , or the tenant had been her ward , and after she had married , and died , during that estate he shall be tenant by the curtesie ; for the freehold was not in suspence , but the possession for years only . land is given to two women quant diu simul vixerint , the remainder to the right heirs of her who first dies , one of them takes husband , hath issue , and dies , the husband shall not be tenant by the curtesie ; for she had not the sole possession . tenant by the curtesie of a seignory , and a tenancy escheats , and he makes a feoffment with warranty of it . if that shall be a bar to the issue without assetts ? is the question . if one hath a son which is a bastard eign , and a daughter mulier puisne , and dies seised of a rent , the daughter having a husband , and after the bastard gets the rent , and thereof dies seised , and that descends unto his issue , yet the husband shall be tenant by the curtesie ; for the rent was in esse ( at the time of the discent ) in the daughter , and she may choose whether or no she will admit her self out of possession . tenures . if there be lord , mesne , and tenant , the tenant holds by four pence , and the mesne by twelve pence , and the tenant makes a gift in tail , saying nothing , and the reversion escheats after that , some think the donee shall hold by twelve pence , so if the mesnalty descends to the donor , the donee shall hold by twelve pence , and if the mesne had released to the donor , the donee shall hold by twelve pence . as if the tenant had made a gift in tail , the remainder in fee , and the remainder had escheated , the donee shall hold by twelve pence ; for the first services which he paid , and the first tenure is extinct by the unity of the remainder to the seignory , so it is cleer the mesnalty is extinct , viz. the four pence , then the donee shall hold by twelve pence , and it is all one as if the mesne had released to him in remainder , and the reason in the principall case why the tenure of the donee shall be charged , is , because the law makes the tenure of the donor in respect of the mesnalty , and when the mesnalty is extinct , the tenure between the donor and the donee is extinct also , and then by the same reason that thedonee shall take advantage , if the donor by release or dissent had held by lesser services , he shall be prejudiced when he holds by greater services . and some think if the wife of the donee in tail , of which the law makes the tenure be endowed , and after the estate is extinct , she shall hold by fealty only , otherwise if the tenure had been reserved by expresse words , and if the wife of the tenant be endowed , and after the reversion escheats , the wife shall hold by fealty only . if the tenant who holds by four pence , makes a gift in frankmarriage , and after the donor dies without heirs , so that the reversion is held by twelve pence , quaere , how the donees shall hold ? whether by such services as the donor held when the gift was made ? or by such as the reversion is now held by ? if a gift in frankmarriage be made , the donees ( after the fourth degree ) shall hold as the donor holds over . if a gift in tail be made , rendring two pence during the life of the father of the donee , during his life the issue shall hold by the reservation of the party , and after his death by reservation of the law. if an encroachment of services be made upon the husband , the wife endow'd shall not be contributory , and yet the heir shall not avoid it . a man hath issue two daughters , and holds land of the eldest by suit and a hawk , and dies , the daughters assign a third part to the mother in dower , and after make partition . tenant in dower shall not be contributory for any part of the services ; for the reversion remains in parcenary between them ; for they cannot make partition thereof , and then the whole seignory is in suspence . and yet if land holden by a hawk descend upon the seignoresse and her sister , and they make partition , the seignoresse shall have the hawk , but there is no suit ; for by the statute of marlebr . cap. . the eldest shall perform it , and the other shall be contributory , then if she be seignoress she cannot do it her self . but the reason in the principal case why the youngest shall not be charged , is , because the seignory is in suspence , & it cannot be in essc for another parcel . the tenancy , being a mannor , is holden by twelve pence of another mannor , which is the mesnalty , and holden by six pence , and the mesne enfeoffs the tenant of the mannor , which is the mesnalty , now he shall hold both the mannors of the lord by one joint tenure of six pence , and the lord shall avow upon the tenant , because the two mannors are holden of him by six pence , so had it been if the tenancy had escheated to the mesnalty , and the one mannor is parcel of the other , there the tenancy hath not lost the name of a mannor ; for the land which was held of the tenancy is not held of another mannor which was the mesnalty , but as it was before , h. . . b. where one mannor may be parcel of another . if the tenant who holds by one hauk makes a feofment of a moity to a stranger , or of the whole to a mayor and commonalty and a. now the lord paramount shall have two hawks ; for they are severall feofments ; for if livery had bin made to one in the name of both , nothing passeth but to him who took the livery , and the lord shall be compell'd to make several avouries , which proves that he shall have severall hawks . if the tenant who holds by two severall hawks makes a gift in tail to two several persons , reserving a rent , habendum the one moity to one , and the other moity to the other , so that they have severall estates in tail , the donor shall have two hawks ; for the law makes the tenure , and reservation , but if the party had reserved it by special words , as if a man makes a lease , habendum one moity to one , the other moity to the other , reserving one hawk , or makes a lease , pur auter vye , to a. and to a dean and chapter , reserving one hawk , and the land goes two severall ways , and he does reserve but one hawk , he shall not have more than he reserved . if a reversion at the beginning goes severall ways , yet they shall not have more than is reserved , if it were special reservation by the party . land is given to two , and to the heirs of their two bodies begotten , the remainder to their right heirs , and the land before was holden by one hawk , the lord shall now have but one hawk , and yet they are not jointenants of the fee simple , but there is no apporcionment by moities , but if a lease be made for life of two acres , the remainder in fee of one to a. and of the other to b. there he shall have two hawks . lord , mesne , and tenant , the tenant makes a gift in tail , the remainder in fee , the remainder escheats , upon whom the lord shall avow , and of whom the donee shall hold is the question ? so if the tenant makes a gift in tail to the mesne , the remainder in fee , or makes a gift in tail to a stranger , the remainder in fee to the mesne , how the tenure shall be now is the question ? but in the first case , if the mesne had released to him in remainder , or to the donee in tail , it seems the donee ought to avow upon the donee in tail , and that the donee shall hold immediately of the lord paramount after the release . quaere , if there be any difference ? the tenant who holds by homage and ten shillings rent , makes a lease for life , the remainder in tail , not speaking of any reservation , the tenant for life ( although he doth not hold by homage ) yet he shall hold by fcalty and ten shillings rent , being both the estates , now are but one : but a gift had been made in tail , the remainder for life , after the estate tail determined , the tenant for life shall not hold by the same services as the donee held , causa patet . if there be two jointenants , and to the heirs of one of them ( who hold , ut supra ) make a gift in tail , the donee shall hold of them both by the like services , and yet the freehold is no cause of the tenure . quaere , for some say that he that hath the fee shall have the whole tenure ; for the inheritance passeth only from him . if tenant for life , and he in reversion make a gift in tail , quaere how he shall hold ? if a lease be made for life , the remainder in frankmarriage , some think the tenant for life shall hold by fealty only , untill the fourth degree be past . if there be lord and tenant by fealty and twenty shillings , and the tenant gives in frankmarriage , to hold of him and his heirs by fealty only until the fourth degree be past , and after by twenty shillings and chivalry , in that case after the fourth degree be past , he shall not have the twenty shillings , nor the chivalry ; for though he reserved but fealty until the fourth degree be past , yet it is an intire reservation presently , and the services are in him although they be not to be performed untill the fourth degree be past , and seisin of the fealty shall be a seisin of the rest , and therefore the reservation being entire , that is the reason that it is void for all , because all cannot be reserved upon the gift in frankmarriage . testament . if a man makes severall wills , of severall dates , and dies , and the executor of the last will refuseth before the ordinary , yet the first will is clearly defeated , and yet the refusal is peremptory : but it is not so if there be two executors , and one refuseth before the ordinary . if a fem sole makes her will , and then marries , and he dies . quaere , if the will be revoked . villain . if the lord deviseth land to his villain , he shall be enfranchised against the heir , and yet he was a villain to the heir at the same time the devise took effect ; but being the lord had a power to enfranchise him , he shall be enfranchised . as if one delivers an escrowl of enfranchisement to be delivered seven years after , the lord dies , and then the deed is delivered to the villain , it is a good enfranchisement . if a man makes a lease for life , the remainder to the right heirs of a. who hath issue , a son who is a villain by confession to the feoffor , and the feoffor dies , and a. dies , and the tenant for life dies , the son of a. enters , he shall be enfranchized , and yet he was not enfranchized in the life of the feoffor , but now he shall be said in by him . so if a man devise that his executors shall sell his land , and they sell it to the villain of the testator , he shall be enfranchised against the heir ; for he comes in in the per by the testator . if a fem be endowed of a villain in grosse , and the tenant in dower and the heir enter together into land purchased by the villain . quaere in whom the freehold shall be . so if he had been a villain to an abbe and a secular man ; for his body is intire to every of them . and if the grantee for life of a villain , and he in reversion of a villain enter together into land of the villain , it seems that tenant for life shall gain all , but some think that he in reversion shall disable him in an action . if executors have a villain that the testator had , and enter into land purchased by the villain , it shall be assetts notwithstanding they have a fee , as land in fee descended to the heir shall be assetts to a chattle , viz. a debt to a stranger . and the reason why they shall have it to the use of the testator is , because they had it in auter droit , and so it shall be a perquisite unto the same right . so if a guardian in socage of a mannor to which a villain is regardant , enters into land purchased by the villain , it shall be to the use of the infant . so if a bishop enters into land purchased by a villain , which he hath in right of his church , the land shall be to the same use , so is e. . . but if one hath a villain for years in his own right , he shall have a fee in the land purchased by the villain . it was said if a man be intitled to be tenant by the curtesie of a villain , and enters into land purchased by him , he shall be seised of the land to his own use , and not in right of his wife , because he hath the villain in his own right ; but , quaere , if he were not intitled to be tenant by curtesie ? if the lord of a villain gives land by fine to the villain , which is land of ancient demesne , the lord reverseth the fine by disceit , some think the manumission is destroyed ; for it doth not appear upon record ; otherwise if he enfeoffs his villain upon condition , and enters for the breach . and if a villain acknowledges an action brought by baron & fem , that is no enfranchisement against the fem ; for it is but an enfranchisement in law upon which she is not examined . the tenant enfeoffs the villain of the lord and a stranger , upon collusion , the matter is how the lord may obtain the ward without dammages ? for if he brings a writ of ward , the villain shall be manumitted , and if he enters upon the villain he avoids the collusion for ever , and shall retain the land , but then he shall be tenant in common with the other , and so he can have no writ of ward for the other moity . if tenant in tail of a mannor to which a villain is regardant makes a lease for one and twenty years to the villain , rendring a rent according to the statute , and dies within the term , if the issue being remitted to the freehold of the villain may enter into the mannor and out the villain ? upon a plea in bar of an assize the parties are adjourned , and after the tenant pleads a release made after the darrein continuance , bearing date in a forreign county , and after at the venire fac . return'd , the tenant pleads that after the darrein continuance he hath purchased the mannor to which the plaintiffe is a villain , he shall not have this plea ; for he shall not delay the plaintiff by his plea , but once , where the matter of fact happens de puisne temps ; for he is at no mischeif if his plea be true : but in shewing a record after he shall plead it if it be in the same court. and here the villain shall not be enfranchized ; for the plea was pleaded before , which now he ought to maintain : but if he answers his villain de novo , that is an enfranchisement . voucher . the youngest son of an abator hath land by descent by the custom of borough english , or by reason of an estate tail made to his father and a second wife , in a mortdancester brought against him he shall vouch , notwithstanding the counterplea given by the statute ; for the statute extends but to heirs at common law ; and therefore if an abator hath issue , two daughters , and makes a feoffment and dies , and one of them takes a feofment , and an assize is brought against her , she shall vouch ; for she is not sole heir : but if she had been sole heir , then cleerly she shall not vouch , though she doth not come to it as heir . and if an abator and a stranger being tenants in a mortdancester , vouch , they shall have the voucher . if feoffee with waranty to him , his heirs and assigns makes a lease for life , the tenant for life in a plea vouches the first feoffor , and recovers in value land held of the feoffee , if the feoffee shall have his seignory ? for if the reversion of the land recovered be in the feoffee , then he shall not avow , and if he shall not . quaere , if lessee for life shall vouch as assignee , being that he hath not all the estate ; and it is cleer if the feoffee had made a lease for life , the remainder in fee , the lessee shall vouch as assignee , and if he recovers in value , the remainder shall be in him in whom it was before . ass . p. . ass . p. . if the younger brother and a stranger abate , and the stranger dies , now a mortdancester doth not lie ; or if an abator makes a feoffment , and retakes an estate to himself and another , and the other dies , the voucher does not lie for him ; and yet before , an assize of mortdancester and voucher did lie . if a feoffment be made with warranty to one , his heirs and assigns , the feoffee makes a feoffment over , the second feoffee enfeoffs the son of the first feoffee , he shall vouch ; for he may be assignee of his father , being he does not come in as heir . lord by escheat , mortmain , or of a villain , &c. shall not be said assignees . land is given to husband and wife , and to the heirs of the husband , he makes a feoffment with warranty and dies , the wife brings her cui in vita , the feoffee vouches and recovers in value by reason of the warranty , after the death of the wife he shall vouch again by reason of the warranty aforesaid . so if a woman brings a writ of dower , and the feoffee vouches by reason of the warranty , he shall vouch again after the death of the wife , because the voucher and recovery in value was onely in respect of the freehold ; but if he had once recovered in value of the fee , he should never vouch again by reason of the first warranty ; for he hath the effect of it , and also the warranty is gone with the estate . but if tenant in frankmarriage recovers in value , he shall vouch again ; but it is otherwise of tenant for life . if tenant in tail , to him and his heirs females , the remainder to him in fee , makes a feoffment with warranty and dies , the heir female recovers , and the feoffee recovers over in value , he shall vouch again after the estate tail is spent by reason of the first warranty . if the tenant vouches , and at the sequat . sub suo periculo the tenant and the vouchee make default , whereupon the demandant hath judgement to recover against the tenant , and after he brings a seire fac . against the tenant to execute the judgement , if the tenant shall have a warrantia chartae against the vouchee ? but if a stranger brings a praecipe quod reddat against the tenant , some think that he shall vouch ; for by the first voucher and the judgement given against the tenant the warranty was not defeated , nor the possession of the tenant ; but if the tenant had judgement to recover in value against the vouchee , he shall never vouch again by reason of this warranty : for the warranty hath lost its force , being he had judgement to recover in value by reason of it ; for if he should recover again , he should have recoveries upon one warranty . it was holden cleerly , that if the tenant hath judgment against the vouchee , he shall recover no land in value , but that the vouchee had at the time of the judgment . and note upon a summoneas ad warrantizand . if the sheriff returns the vouchee warned , and he makes default , the tenant shall have a cap. ad val . and recover in value , but if he returns , that he hath nothing , then after the sicut alias , & pluries , a sequatur sub suo periculo shall issue , and there if the vouchee makes default he shall not have judgement to recover in value ; for the warranty is not confessed , and it is uncertain whether he had any thing , but in the cap. ad val . it appears that he has assetts . a. seised of two acres at common law , and one in borough english , and makes a gift in tail to a stranger of one of the two acres , and dies , the donee , is impleaded , and vouches the eldest son , and recovers in value the other acre out of his possession ( as he shall do in this case , being he vouches him alone , and not the youngest , where the eldest hath assetts ) the question is if he be impleaded for that acre he hath recovered , if he shall vouch the eldest and the youngest ? if that acre in borough english shall be lyable by reason of the said warranty in law , being it is not the warranty which descends , but the warranty in law commenceth first in the eldest son ; for the recovery in value shall be said in lieu of the first land given , yet it is always to be intended ( having regard to the estate of the reversion descended from the father ) the reversion left in the eldest son , and then the acre of the youngest is not lyable to that warranty . so if the father had given a seignory to the eldest son in tail , and died seised of land in borough english , which descended to the youngest son , and after the tenancy escheats , the eldest being impleaded vouches himself to save the intail ; but if the land of the youngest shall be lyable , is the question ? lessee for life , the remainder to the right heirs of a. who is dead , having a daughter , his wife enseint with a son , the lessor warrants the land in forma praedicta , the son is born , the daughter cannot vouch by reason of the warranty ; for the warranty is a thing executory which cannot be deraigned , but by the right heirs of a. for if a feoffment be made to the son with warranty , and he dies without issue , and the land comes from the unkle to the father , he cannot take advantage of this warranty as heir to his son ; so if possessio fratris makes the sister heir , she shall not vouch , h. . . danby ; but he shall be voucht as heir for the possession , so shall the father , so shall the youngest son in borough english , but shall not vouch , vide fitzh . voucher . h. . . if land be given to two brothers in fee with warranty to the eldest , the eldest dies having issue , and the youngest dies without issue , the issue of the eldest being his heir , and he enters , he shall not take advantage of this warranty by voucher or rebutter ; for the warranty was void , having regard to the survivor , because his title hath relation before the warranty . if the eldest son is voucht as heir to the warranty , and the youngest as heir in borough english , and the eldest voucheth over , if the eldest or the youngest shall have the recompence in value ? it would be unreasonable , that the eldest should have it , for he lost nothing , for by the law the tenant cannot sue execution against the vouchee , untill the demandant , hath sued execution against him , and in this case execution was never sued against the eldest , for he hath no land , and the youngest hath not the warranty by descent , ( though he hath the land ) and so he cannot vouch , and therefore it is hard he should be bard by it . wast . land is given to baron & fem , and to a third person , the third person releaseth the fem all his right , and the baron & fem makes a lease of the whole for yeares , and brings a writ of wast against the lessee . the lessee is not punishable in wast if a house falls that was ruinous at the time of the demise , and he may cut trees to repair it , so he may do if the lessor covenants to repair it , vid. , h. . . if a house with land is let , upon which is a wood without impeachment of wast for the house , yet if the house becomes ruinous , he may cut timber for the reparation , and a lessee may take timber for fier-boot , if there be no other wood . quod vid. . h. . . if a man makes a lease upon condition , or that the lessee is bound in an obligation not to do wast , and that his estate shall cease : if a stranger commits wast , that is no forfeiture of the lease , for the condition extends only to the person of the lessee . vid. . h. . . but if a stranger commits wast upon the lessee for years , or guardian in chivalry , they shal render treble and shall lose the ward , but guardian in socage shall not be punisht for wast of a stranger , for the heir himself shall have an action . if a lease is made for life , the lessor dies having two sons by divers venters , the eldest grants to the lessee that he shall be dispunisht of wast , yet that shall not bind the youngest , for he does not claim as heir to his brother , but as an heir to his father , who was last actually seised . fem tenant for life , the remainder for years to i. s. who marries with the fem , and commits wast . quaere , if the land be lost ? if tenant for life makes a lease for years , and after enters upon the termor , and commits wast , and the lessor recovers , the lessee shall lose his term . a man shall not be punished for comming on the land to see if wast be committed . the heir makes a lease for years , wast is committeed , the wife recovers in dower , the heir shall have an action of wast in the tenuit . a man makes a lease for twenty yeares without impeachment of wast , and the lessor confirmes for forty years , the lessee shall be dispunisht for twenty years a man makes a lease rendring rent on condition , that if the rent be behind , that the lessor shall reenter and retain until he be satisfied the rent out of the profits , the lessor doth enter and a stranger commits wast , and then the lessor is satisfied of the rent , if the wast be punishable . if one doth devise his lands which he hath for years and dies , the executors commits wast , and then agree to the devise , an action of wast lies against them , notwithstanding the relation ; so if lessee for years grants his term upon condition , and the grantee commits wast , and the lessee for years enter for the condition broken , yet wast lies against the grantee . where a man hath election to take two estates , his committing of wast will be a determination of his election . if there be lessee for life , the remainder for life , and the lessor grants the reversion to him in remainder , quaere , if he shall have an action of wast ? if tenant for life makes a lease for years , and enters and commits wast , the tenant for yeares leases his term , wast by the assignee of an infant or fem covert shall take away the special right of infancy coverture or condition , but otherwise if it had it been made by themselves . warranty . grandfather father and son , the grandfather makes a lease of an acre for life , and dies , the father being tenant in taile , discontinues it in fee with warranty , and dies , the tenant for life dies , the son enters into the acre after his death , and brings a formedon , the warranty of the father with this assets seemes no barr . the discontinuee of a tenant in tail makes a feofment on condition , and a warranty collateral is made to the feoffee of the discontinuee , the discontinuee enters for the condition bro ken , the issue hath no remedy against him . if a collaterall warranty descends within a year upon him that hath title to enter for mortmain , he cannot enter after ; for if he himself had re leased he could not have entred , and the warranty will bind him as well as his release : but quaere , if a collaterall warranty extends to a title of entry ? if a man devises land with warranty , that is void ; because the father himself was not bound . a warranty made to a disseisor is not destroyed by the release of the disseisee . a collateral warranty shall not bar execution of a recovery in value ; for it is but a title , to which a warranty does not ex●end no more than to bar a title of entry ; for consent to a ravisher or mortmain , also conditions and titles are always said to be in possession as a rent is , and then a warranty to the tenant of the land will not extinguish them . lord by escheat shall not vouch by reason of a warranty , if a seignory be granted with warranty , and a tenancy escheat , the warranty shall not extend to it . vide fitzh . . voucher . father and son and a third person are jointenants , the father makes a feofment of all with warranty , and dies , the son dies , the third shall have an assize of but one part by some , and yet the warranty commences by disseisin , as to the son , but yet the survivor cannot deny but that this warranty is collaterall ; for he comes not under the estate of the other . if a lease be made for years to the grandfather , remainder to the father for life , remainder to the son in fee , the grandfather enfeoffs with warranty , it comences by disseisin to thefather , and collateral to theson ; for the feofment was not a disseisin to the son . if the father be lessee for years , remainder for life to the son , remainder over for life , remainder in fee to the son , the father enfeofs with warranty , it comences by disseisin as to the son for thefreehold , but for the fec t is collateral . quaere by some in all cases every man shal a void a warrantywhich comences by disseisin . vid. fitz. war. . if a lease for life be made , remainder for years with warranty . quaere , if this warranty will benefit him in remainder , being the precedent estate is of another nature . if a man makes a lease for life on condition that if the lessee doth such an act , that the lessee shall have fee , and warrants the land in forma , praedicta , that warranty extends to the fee , but if the feoffor dies , and then the condition is performed , then if it be available is the question ? being the lessor was not bound to warranty during his life , and then the warranty which was annext to the freehold is gone ; for the greater estate drowns the lesser . and to provethat the greater drowns the warranty , it was said if tenant in tail be with warranty to him , his heirs and assigns , hisfeofee in fee shall not besaid assignee , nor vouch , because he hath not any part of the estate tail . it was also said , that if the condition had been performed in the life of the lessor , that the warranty would not extend to it ; for it must be annext to something in possession . but some take a difference , that if in the first case the firstlease had been for years , that the warrantycould not extend to the remainder , because the first estate was but for years , and of another nature , but it would be otherwise in a lease for life . and it was said if a lease for years be made , remainder in fee with warranty , he in remainder can't take advantage of the warranty , because he was not privy to the first deed , and thenhe cannot take as an immediate warranty , because the first estate was of another nature , a reversion descends to barow & fem lessees for life as to the issues of two parceners , thehusband dies , thewife shall have the wholefreehold assurvivor , and the fee shall be executed for a moity , because the other moity goes another way , sc . to the heirs of the husband , and he shall dereign the warranty annexed in fait to the first estate for the moity , and not for the other moity , because the fee is executed . if land be bargained & sold by indenture in fee with warranty , & the indenture is delivered , and after inrolled within six months , if he shall vouch , quaere , because the nature of a covenant is , that it ought to take effect presently by the delivery of the deed , and then the warranty was void , because the land did not pass at that instant , and though the inrollment makes it to pass ab initio , yet the relation shall not make a void warranty good . to which it was said , if one makes a feofment with a letter of atturny , and warranty is in the deed , by the delivery the warranty shall be good , and yet the deed was delivered before . if a gift in tail be made with warranty to a man , his heirs and assigns , and he makes a feofment and dies , with issue in a formedon in reverter , the warranty shall not be a bar , not with standing the book of the & e. . . if the lord confirms the estate of the tenant with warranty , and after the tenant ceases , the warranty shall not be a bar in a cessavit , notwithstanding the seignory which was in esse before the warranty made was the conveyance to his action , because the action a rises upon an after cause . tenant by the curtesie of a seignory whereof a tenancy escheat make a feofment with warranty , if it shall be a bar to the issue without assets ? quaere . a fem which hath a rent charge in fee marries with the tenant of the land , a stranger release to the tenant with warranty , the warranty can't extend to the rent , because therent was suspended by act in law , and the wife if the husband dies , nor the heir of the wife , living the husband , cannot have any action for the rent upon a title before the warranty made ; for if theheir of the wife brings a mortdancester , that is de puisne temps , and after the warranty ; so if the grantee of a rent grant it on condition to the tenant , who makes afeofment of the land with warranty , thatwarranty can't extend to the rent and yet theland was discharg'd of the rent ; but all the actions shall be took as the cause of action arises afterward ; for if the condition be broken , and after an action be given , that shall arise after the warranty made : but if a fem which hath a rent marries with the tenant , who makes a feoffment of the land with warranty and dies , and the wife brings a cui in vita of the rent , there the feoffee shall vouch as of land discharged . so if tenant in tail of a rent purchases the land , and makes a feofment , and the feoffee aliens with warranty , or if tenant in tail of a rent releases to the ter tenant who aliens over with warranty , if the issue brings a formedon he shall vouch as of land discharged . so if an infant hath a rent , and disseises the tenant , and is disseised by another , who aliens with warranty , that warranty shall extend to the rent , because in all these cases the land is discharg'd of the rent at the time of the feofment in fee ; and the action is conceived upon a title paramount to the warranty . but if a man grants a rent charge out of land to commence at mich. and the tenant makes a feoffment with warranty , or if a rescous be made , and after the tenant makes a feofment of the land with warranty , as it is in e. . in a warrantia chartae , there the warranty shall not extend to the rent , because the rent was not in esse at the time , but if upon a rescous she brings an assize , and after is nonsuited , and after the tenant makes a feofment of the land with warranty , that warranty will extend to the rent , quod nota . a man dies seised of an acre in borough english in tail , having three sons , the youngest enters , and makes a lease to the second for years , who makes a feofment with warranty , and dies without issue , the yongest dies without issue , the eldest brings a formedon , if he shall be barred by the warranty ? it seems though the warranty descends upon the eldest where it was a disseisin to the youngest , yet when the right of the land comes unto him he shall say that the warranty comences by disseisin , because he is now privy to the warranty , and to the estate ; for if the father seis'd in fee makes a lease to the grandfather for years , who makes a feofment in fee with warranty and dies , and the father dies , that warranty shall not be a bar to the son , because it comenc'd by disseisin to him whose heir he is . and if a man hath issue two sons , the youngest makes a lease for years to the father , who makes a feofment with warranty and dies , and after the eldest dies without issue , and the warranty descends upon the youngest , that shall be no bar , because it comences by disseisin ; and though the land doth come immediately to him upon whom the warranty descends , as it was in the principall case , or although the warranty doth not descend upon the tenant of the land immediately as heir to him thatmade the warranty , yet all is one warranty which ommences by disseisin , and wrong is made to him in the interim , upon whom the warranty descends after , although that wrong was not a dissesin to him , yet it is a warranty which commences by disseisin ; as if an ancestor collateral to the donor , desseise the donee , to the intent to make a feofment , with warranty , which is done accordingly , and the warranty descends upon the donor , and after tenant in tail dies without issue , in a formedon in reverter , the warranty shal be no bar , because it commences by disseisin to the tenant in tail , at which time wrong was made to him in reversion , and therefore he shalsay that the warranty commences by desseisin , tamen vid. . e. . . but if a man makes a feofment with warranty and dies , which is a disseisin to a stranger , the heir of the feoffor ( if he hath not the right of the land descended to him after ) shall be vouched for the warranty , then in the principal case , if the eldest cannot say that the warranty commences by disseisin , yet it shall be lineal against him , for by possibility he might have made himself 〈◊〉 to him that made the 〈…〉 for the land doth descend to the youngest heir , as well as to the youngest son , and so to the youngest unkle , for the reason is all one , for the young'st brother shal be in as youngest son to the common ancester : but some say there is not any reason in these two cases . if tenant in tail is desseised , and release to the desseisor with warranty , and after is attained of felony , and hath a charter of pardon and dies ; it ●●●ms it is a discontinu●●ce , for if he had purchase● land after his charter , it would descend to his heir , which proves that the blood betwixt him and his he●●●●ot corrupt , as it is between him and his ances 〈…〉 then the warranty being in esse at the time 〈…〉 death there is no i●pediment , but that 〈◊〉 descend : but if t●nant in rail , who hath a 〈◊〉 annexed to h●s estate , be attained of sel 〈…〉 executed , many think his issue 〈◊〉 not i●herit the voucher for the warranty 〈…〉 th the land ; for the warranty is out of 〈…〉 de donis condit , which 〈◊〉 of 〈…〉 ements which are given upon addition 〈…〉 sowd . thinks the contrary for by the equity 〈…〉 statute , it is pres 〈…〉 as well 〈◊〉 charters 〈◊〉 . h. , . per m 〈…〉 . b. c. 〈◊〉 for charters . feoffee with 〈…〉 by the feoffor who dies sell 〈…〉 he issues who brings a w●●● of 〈…〉 ●oyned upon the mecre 〈…〉 the 〈…〉 barred , for if the feoffee 〈…〉 ●●mpleaded 〈◊〉 ●●ranger , shal arraine the w●●● 〈…〉 aganist 〈◊〉 issue , is the question . the lavvyers light: or, a due direction for the study of the law for methode. choyce of bookes moderne. selection of authours of more antiquitie. application of either. accommodation of diuers other vsefull requisits. all tending to the speedy and more easie attayning of the knowledge of the common law of this kingdome. with necessary cautions against certaine abuses or ouersights, aswell in the practitioner as student. written by the reuerend and learned professor thereof, i.d. to which is annexed for the affinitie of the subiect, another treatise, called the vse of the law. doddridge, john, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the lavvyers light: or, a due direction for the study of the law for methode. choyce of bookes moderne. selection of authours of more antiquitie. application of either. accommodation of diuers other vsefull requisits. all tending to the speedy and more easie attayning of the knowledge of the common law of this kingdome. with necessary cautions against certaine abuses or ouersights, aswell in the practitioner as student. written by the reuerend and learned professor thereof, i.d. to which is annexed for the affinitie of the subiect, another treatise, called the vse of the law. doddridge, john, sir, - . bacon, francis, - , attributed name. [ ], , [ ]; [ ], , [ ] p. [by bernard alsop and thomas fawcet] for beniamin fisher, and are to be sold at his shop in aldersgate street, at the signe of the talbot, imprinted at london : . i.d. = sir john doddridge. printers' names from stc. "the vse of the lavv" has separate dated title page, pagination and register. it is anonymous, and has been attributed with doubtful validity to francis bacon. the first leaf and the last leaf are blank. reproduction of the original in the henry e. huntington library and art gallery. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- great britain -- early works to . - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - tcp staff (michigan) sampled and proofread - olivia bottum text and markup reviewed and edited - pfs batch review (qc) and xml conversion the lavvyers light : or , a due direction for the study of the law ; for methode . choyce of bookes moderne . selection of authours of more antiquitie . application of either . accommodation of diuers other vsefull requisits . all tending to the speedy and more easie attayning of the knowledge of the common law of this kingdome . with necessary cautions against certaine abuses or ouersights , aswell in the practitioner as student . written by the reuerend and learned professor thereof , i. d. to which is annexed for the affinitie of the subiect , another treatise , called the vse of the law. ¶ imprinted at london for beniamin fisher , and are to be sold at his shop in aldersgate street , at the signe of the talbot . . to the reader . courteous reader , i present vnto you here two children , the one whereof hath an authour vnknowne ; the other a father deceased ; both infants ; both orphans ; and both so like , as if they were gemini horoscope uno . the law enioynes you to keepe them ; and their descent deserues it : if you keepe , and cherish them in their infancie , the law by whose letters of commendations they are committed to your tuition , will keepe and preserue you and yours , your persons , goods , and good names from violence , depredation , and detraction , vnto posterity . case them in what fashion you please : and put them into what livories you like best ; they are both so seasoned , that no weather can alter their constitutions : and both so solid that no teste can disrepute their perfections ; indeede they were intended for generall good . for he that will calculate their natiuitie , shall by a true iudiciall finde in either a plentifull promise of publique profit and fundamentall fabrique both of the study and vse of the lawes of this realme . it is a duty we owe to the knowne authour though deceased , and a charity to the authour whose modesty conceales his name , to communicate to the generall what was so collated in their particular , and so legaterily provided for their common behoofe ; which not as proximiores sanguinis , or proper executors of the will of the deceased , but as creditors to whom the administration of their good intentions for the publicke is committed ; we do now publish and commend to all students in the lawes , and others which shall desire to enable their iudgments in this kinde . in praise of the worke . as after paine in digging of the mould , long time is spent in seuering the oare from the mixt earth ; at length refined gold is by the artist wrought , by which his store is much encreased and the common good . so by this booke if rightly vnderstood and prised at full worth , the reader may obserue the authors labour , who hath drawne from the deepe masse of law , an easie way to make the student perfect ; and doth pawne his credit on 't , perusers may be bold to shew it for he knowes the touch will hold . w. t. another . vvhen criticks shall but view the title , they will carpe at this great enterprise , and say , it was too boldly done , thus to comprize in a small volume , law , and a true size to set vpon it ; but the learned will excuse his little booke , and praise his skill , his ayme being onely to instruct the youth , not to controll the iudge , or wrong the truth : for he well knowes , cases with time may change , and that prooue common which before was strange . i. s. the table . notes collected out of diuers authors . fol. grounds borrowed out of logicke . grounds borrowed out of naturall philosophy . grounds borrowed out of morall philosophy . ibid grounds borrowed out of the ciuill law. grounds borrowed out of the cannon law. grounds deriued from the vse , custome and conuersation of men . proverbiall grounds . maximes applia●le onely to one title . the diuers kinds of grounds which doe concerne one title . formall causes and grounds of the law. notes collected touching the verity of principles . notes collected touching the difference betweene primary and secondary principles . the first sort of secondary rules grounded vpon entendement . notes touching the definition , diuision , and necessary consequents of secondary principles . the second sort of secondary rules grounded vpon entendement . the second principall kinde of contingent propositions . the triple vse of equity in the lawes . notes collected out of authours touching exceptions of rules , and from whence they spring . exceptions ministred by equity . the vse of generall rules , and the obseruations of their specials . notes collected out of authours touching the obseruation of generall propositions . ibid notes of authours touching the obseruation of collection of grounds , and rules by inference . aristotle in the first book of his topickes expressing the meanes , wherby in euery facultie or science intellectuall , resting vpon discourse of reason , men might abound in matter apt for argumentation , and might bee furnished with copy of reason fit for the proofe or disproofe of things called into debate , in such the sciences by them professed , expresseth a fowrefold obseruation , . quarum vna ( as he sayth ) est in propositionibus eligendis . . altera in distinguendo quot modis quicquid dicatur . . tertia in differentijs inueniendis . . quarta in similitudinis cognitione & scientia . all which are notable instruments of knowledge , greatly profitable , yea necessary for the obtayning of all such sciences as doe depend vpon reason : and so consequently much auayleable to be obserued in the study of the lawes of this land , which are grounded vpon the depth of reason , and inuested often times by the name of reason , in our reported cases , and ruled authorities of the same : . hen. . . b. . hen. . . b. com. colth . . b. com. brown. . b. . hen. . . a. montague . of which fowre principles , purposing ( for direction of study ) to say somewhat , in order , as they are afore proposed . it is to be considered that the first of them being propositionum electio , containeth the election , choice obseruation , and collection of all receiued principles , propositions , sentences , assertions , axiomes and reasons , importing eyther certainety of truth , or likelyhood of probability . wherein first aristotle giueth precepts to collect them , and then after giueth counsayle , so to digest them , as that they may at all times bee ready for our vse . wherefore heereof intending an ample discourse , it shall be requisite to follow the ordinary and best method , by definition , diuision , and the due speculation of their causes , whereby may be manifested what they are , of how many kinds they are , the diuers manners of collection of them ; and lastly , the end , scope , and vse , whereunto they tend , and the profit ensuing by obseruation of the same . that first therefore the names , by which in our law they haue vsually beene called , might bee made manifest before their nature be discouered ( primò enim de nomine conveniat ) it may with little labour easily appeare , that sundry are the titles or names giuen in the volumes of reports and other writings of the law , vnto such propositions as doe remaine as reasons of resolued cases . sometimes they haue beene called grounds , see in the . hen. . . b. dyer numero . it is said , est une auter grounde in tenure in chief . s. il. do et este immediate del roy ; et il convient comencer , et prend son original creation per le roy mesme , et per nul de ses subiects . so likewise speakes rede . . hen. . . b. est bone ground in trespas , discontinuance vers un est discontinuance vers touts , with infinite such other . sometime they haue beene called maximes ; for so saith fortescue in , hen. . . a. est un maxime en nostre ley , que in chacun action personal , le non-sute del an sera le nonsutte de ambidoux , fore prise in tiels cases que sont except per statut . likewise saith knightley . hen. . . a. dyer numero . est un maxime , que un action sera touts foits conceiue ou le plus meliour trial , et notice del fait poit este conus ; et specialment lou de tort est personal , with diuers such like . sometimes they are called principles , for so in the . hen. . a. it is said , that it is un common principle , que terre ( s. estate de frank tenant ) ne pas sans livery de seisni . likewise saith sanders in the com. colthurets case . b. il ad este temis come principle , que quand un fait livery de seisni que son livery sera pris plus fortment vers luy . somtimes they haue beene called eruditions . in such sort saith keble , in . hen. . . a. ceo ad este un erudition , que le partie navera capias ad satisfaciendum , mes ou capias gift in l'original . and some in . hen. . . a. dyer numero . saith , iustices il est une common erudition , que in cel countie lou le tort commence , l'action sera porte . moreouer , sometimes for their firmenesse they haue beene called lawes positiue , for so speaketh belknap . . rich. . fitzh . accompt . il est ley positive , que home navera damages in breve d'accompt . sometimes they are inuested by the title of law it selfe ; for in such manner it is said tempore ed. . fitzh . grant. . lex est , cuicunque aliquis quid concedit , concedere videtur , & id sine quo res esse non potuit . and so bracton saith , . hen. . . b. lay prise pur ley , que si home plede un plee et preigne un protestation ; et puis son plee est troue encounter lay , il naver unque advantage de son protestation . of which manner speeche there are manifold examples . so that be they named grounds , maximes , principles , eruditions , lawes positiue , lawes , rules or propositions , or by whatsoeuer other name they bee called , let vs now seeke the nature of them by their definitions . paulus the ancient romane lawyer thus defines a principle or rule of law : regula iuris , rem quae est , breviter enarrat . &c. if we doe respect the originall thereof together with the effect it yeeldeth ; morgan in the commentaries of plowden , thus defineth it : a maxime is the foundation of law , and the conclusion of reason : for reason is the efficient cause thereof , and law is the effect that floweth therefrom . such of the civilians as in the description of a rule of law , doe onely respect the manner of the collecting of them , from particular cases or circumstances doe thus affirme : regula iuris est multorum specialium per generalem conclusionem brevis comprehensio . or as ioachimus hopperus in his first booke de iuris arte , though disagreeing in words , yet one in the sense with the former ; regulae iuris sunt quaedam coniectiones tantum , & breviaria ex pluribus speciebus in unum per commune aliquod collecta . another of them in this manner , regula est sententia generalis , quae ex plurium legum mente à iuris consultis notata atque animadversa , paucis verbis summam earum consentionem & tanquam harmoniam complectitur . matheus gribaldus in his first booke de ratione studij cap. saith , regulae iuris nihil aliud sunt quàm breves & compendiosae sententiae ex pervagatis definitionibus perstrictae , quò & minori labore discantur , & faciliùs diutiúsque memoria teneantur . notes collected out of authors . regula iuris est plurium conpendiosa narratio , & quasi causae coniectio . nec absimile est quod grammatici dicunt , eam esse multorum similium collectionem . in summa autem est , ac si quis , praedictis cum verbis archid. dist . . c. reg. coniunctis , ita diceret , quod regula sit compendiosa definitio ; seu cum quintiliano universale , vel perpetule praeceptum diversarum rerum , quasi sub unâ eadémque causâ cadentium , universitatem complectens . est regulanihil aliud quàm plurium rerum & specierum in unam quasi summam coniectio . but binding our selues to no prescript rules of art , for the better vnderstanding of the same , we may describe a rule or ground of law thus : a ground , rule , or principle , of the law of england is a conclusion either of the law of nature , or deriued from some generall custome vsed within the realme , conteyning in a short summe , the reason and direction of many particular and speciall occurrences . as touching the diuision thereof , wee shall better obserue how many principles and grounds there be , by the due consideration of their causes from whence they spring . non solùm ea quae insita sunt causae dicuntur , sed etiam ea quae extrinsecus sumuntur : ut id quod motum affert & efficiens est . causarum quatuor sunt genera . vnum est forma atque essentia rei . alterum est in quo inest necessitudo non absoluta , sed ex adiunctione ; si alia quaedam sint , haec esse necesse est . tertium genus est id in quo inest rei efficiendae vis primaria . quartum est finis cuius causâ aliquid fit . nam ad interrogationem factam per verba , propter quid fit aliquid , nihil aliud unquam respondetur , quam aliqua exdictis quatuor causis : inter quas tamen , finis est potisstma , & quasi aliarum causa : materia enim non esset causa , nisi haberet formam ; & forma itidem nisi ab agente introduceretur ; agens quoque nen ageret nisi moveretur à fine ; finis autem ipse immobilis permanet : est ergo primum movens , & prima causa , &c. all causes of euery thing are either internall or externall . internall are the causes materiall formall . the externall causes are the efficient finall . as touching the materiall cause , matter , or subiect wherein these grounds are conversant , the same are all those things , whereof debate may rise betweene parties iudicially : which are as well diuine as humane . insomuch as iuris prudentia , or the knowledge of the law , is divinarum humanarúmque rerum scientia . and hence proceedeth it , that all grounds or rules of the law of england in respect of their matter which they doe concerne , are either such as are not restrained to any one proper or peculiar title of the law , but as occasion serueth , are appliable vnto euery part , title , or tractate of the law , as by the view and due consideration of examples following may be made manifest ; all which , being either conclusions of naturall reason , or drawne and deriued from the same , do not onely serue as directions and principles of the law , but are likewise as positions and axiomes to be obserued throughout all mans life and conuersation ; hauing their originall from those arts that are necessary and behoofull for maintenance of humane societie . and first of all concerning the art of logicke ; from thence the learned of our lawes haue receiued many principles , as well out of that part which concerneth the inuention of arguments , as of that which teacheth the disposing , framing and the iudgement of the same . from the first part these may serue for example . idem non potest esse agens & patiens . omne maius continet in se minus . magis dignum trahit ad se minus dignum . in praesentia maioris cessat minus . frustra fit per plura quod fieri potest per pauciora . turpis est pars quae cum toto non convenit . with many such like , &c. from the iudiciall parts of logicke , these and diuers others . qui negat confusè , negat confusè & distributivè . but how that saying may be vnderstood , and in what sense it may be intended true , and in what not , peruse the case of . hen. . . a. touching the travers of a suggestion of breach of the peace : ( where although the said rule be not mentioned , yet the meaning thereof , by the case there debated is partly made manifest ) moreouer brian borroweth the sophisters verse , and maketh it a ground to try whether an issue tendered be an expresse negatiue or no , in . hen. . . a. prae contradic . post contrar . prae postque subalter . this likewise is deriued thence , negativum nihil implicat . out of naturall philosophie these with diuers other are deducted , that follow . vis vnita sortior . est naturae vis maxima . vltra posse non est esse . sublata causa tollitur effectus . vltra scire non est esse with many other of like quallitie . out of morall pihlosophie . from whence , as from a fountaine , all lawes doe flow , we doe obserue these few following for an example ; as qui sentit commodum , sentire debet & onus . volenti non fit iniuria . sic vtere tuo vt alienum non laedas . fraus & dolus nemini patrocinantur . agentes & consentientes pari poena plectuntur . summum ius summa iniuria . vix vlla lex fieri potest quae omnibus commoda sit : sed si maiori parti prospiciat , vtilis est . a vero non declinabit iustus . quod tibi fieri non vis , alterine feceris , with many more such like . out of the ciuill lawes there are also very many axiomes and rules . vvhich are likewise borrowed and vsually frequented in our law. for sith all lawes are deriued from the law of nature , and do concurre and agree in the principles of nature and reason : and sith the ciuill lawes , being the lawes of the empire , doe bewray the great wisdome whereby the romane estate , in the time it most flourished , was gouerned : sith likewise the law of this land hath alwaies followed best and most approued reason ( which is also a type of humane wisdome ) it doth ensue of necessitie , that great conformitie must be betweene them . which conformitie may be made apparent partly by these ( amonge some thousand axiomes and conclusions of reason ) following . qui tacet consentire videtur . vigilantibus & non dormientibus iura subueniunt . quod initio non valet , tractu temporis non convalescit . quando duo iura in vno concurrunt , aequum est ac si esset in duabus . in aequali iure , mclior est conditio possidentis . optima legum interpres est consuetudo . frustra legis auxilium petet , qui in legem peccat . ignorantia facti excusat . hen. . . b. modus legem dat donationi . non est regula quin fallat . modus & connentio vincunt legem . with others in manner infinite , written and published in the latine tongue . in the french also many other grounds there are in our law , to befound agreeable in sense and meaning to such as are frequent and vsuall in the ciuill lawes , and there published in the latin-tongue , wherof also these following may serue for example . nul prendra benefit de sontort demesne . nemo ex dolo suo proprio releuetur aut auxilium capiet . homo ne sera double charge pro vne mesme duetie . bona fides non patitur idem ab eodem bis exigi . auxy moult aucthorities & voies que home ad a faire vn fait auxy mult auctorities & voies ad cesty a qui le fait est fait a ceo dessoluer . . hen. . . a. nihil est magis rationi consentaneum quam eodem modo vnum quodque dissoluere quo constatum est . le common welth sera prefer deuant priuate wealth . vttlitas publica priuatorum commodis ante-ferenda . l : . § . fin . & cap. col . le ley in cheseun act ad respect al comencement : origo rerum attendenda . imagination de mente de faire tort , sans de act sait , nest punishable in nostre leg. affectus non punitur nisi sequatur effectus . prateus lib. . c. . intent direct done plus tost quam parolls . proferent is intentio & voluntas magis quam verborum locutio examinetur . prateus lib. . cap. . quant diuers choses sont fait a vn mesme instant , & lune ne poet prender effect sans l'auter ; le common ley adiudger ceo depreceder & ensuer , que aptment : do et preceder & ensuer in feasant l'intent des parties deprender effect . vbi in instrumento reperitur plures actus successive fuisse celebratos , semper fingitur ille actus praecessisse qui reddit actum validum . nicholai euerard topica iuris loco . non attento ordine verborum , talis ordo presumitur qualis debet esse . with many others to like purpose , if place did permit or cause did require to obserue the same : yea many times when as no ground or rule is expressed in our law , but that we may onely collect cases concurrent vpon some conformitie of reason : we shall finde in the ciuill lawes a proposition or rule which shall most aptly and most fitly expresse the same reason in such shortnesse of speech , as nothing shall seeme more sufficient in that respect . and vnto the which propositions such as are or may be framed by vs in the french , cannot in excellencie be worthily compared . as touching the canon law. forasmuch as the studies both of the same and of the ciuill law , are in sort conioyned by the professors of both what may be sayd of the one , in this respect , may likewise be verified of theother : which aswell by view of the title de regulis iuris in sexto decretalium , as also in diuers other titles of the same law , especially in such as are most vsuall for matters of debate in this realme , as are those of excommunication , marriage , diuorce , legacies , tythes , and such like will at large appeare . finally many grounds and rules of the lawes of this realme are deriued from common vse , custome , and conuersation amonge men , collected out of the generall disposition , nature and condition of humane kinde : which grounds are of two natures . the one obserued out of humane actions , the other out of vsuall and ordinary speech . ( principia externa propriè vocamus ea quae in communi hominum vita versantur & ab experientibus & prudentibus animaduertuntur . ioh. hopper : de iuris arte . haec non tam ex ipsa hominis natura quam foris adueniunt , debent que non ex mente hominis aut animo , sed ex communibus vitae moribus longo vsu & tractatione colligi . ibidem haec sunt igitur illa quae dico externa principia , quae ex communibus vitae vsibus & mortbus diligenter in historia obseruatis decerpuntur , quae que non tam òrdine describi , & literts mandaeri , quam long a tractatione colligi , & per manus tradi possunt . ibidem . of the first sort are these and such like following . home est tenus destre procheni a soy mesme . le inclination de touts homes est de faire ou parler choses pour lour gaine & inent pour lour perde : et deceux que voilent gabber , de gabber pur aduantage . est le propeitie de nature de preseruer luy mesme . quant home est partie , ilne poet esse iudge indifferent a luy mesme . with many other of like qualitie , which the intendement of the law deriueth and collecteth out of the vsuall condition nature , and qualitie of things vpon the probabilitie and likely-hood of occurrences often or for the most part hapning and falling out . axiomes or propositions of the second sort , are drawne from the phrase of speech , and deduced from the ordinarie manner of conference by talke among men most vsuall in all places , as are the common and ordinarie prouerbs and prouerbiall assertions , and such like ; the which , as well by reason of their ordinarie and often vse in talke ; as also for their probabilitie and likelihood of trueth , haue beene sometime vsed as axiomes , principles , and grounds of the law ; and are to be found confirmed with many cases , hauing beene vsed as reasons in the same : whereof these few ensuing may serue for example . da tua dum tua sunt ; post mortem , tunc tua non sunt . qui ambulat in tenebris , nescit quò vadit . necessitas non habet legem . as good neuer the whit as neuer the better . let him that is cold blow the coale . one to beate the bush and another to take the birds . with many other such like speeches , which although they are of small moment , being euery where ordinary ; yet neuerthelesse for the perspicuitie and plainenesle , they haue heretofore , at some times , in law arguments beene vsed , and fitly applyed in debate of cases ( although not ad probandum , yet ad illustrandum ) and so likewise may at any time hereafter , vpon like occasion offered , without blame bee frequented . although these generall positions , maximes and rules proposed , and such like , cannot bee properly reduced ( as is aforesaid ) vnder any one peculiar title of the law extant in any abridgement , table , or directorie ; yet neuerthelesse may they be brought vnder generall titles or common places , to bee framed of purpose , as hereafter in place more convenient shall be declared . and thus much therefore of generall grounds or maximes . now followeth to speake of such as are to bee reduced vnder one particular title , tractate or matter of the law , seruing to no other vse , but onely doe concerne the said speciall matter , and cannot bee transferred thence , neither may properly serue any other then their natiue place , vnto the which they are wholly and alonely to bee referred : as for example . vnder grantes these . quandoaliquis quid concedit , & id etiam concedere videtur , sine quo res concessa esse non potest . grant sera prise plus fort vers le grauntour &c. vnder contracts these and such like . ex nudo pactonon oritur acti . com. . a. com. . a. com. . a. com. . a. contract ne poit estre , si ne soit que chescum partie soit agree . vnder prerogatiue these and such others . nuslum tempus occurrit regi . com. . a. . a. . a. le roy ad auxy un prerogatiue en le forme de brefs port per luy , different de ceaux que common person ad , &c. vnder deeds these . fiunt al aliquando donationes in scriptis , sicut in chartis , ad perpetuam memoriam , propter brevem hominum vitam & ut faciliùs probari posit donatio . choses incident que per leur mesme ne potent estre grant sans fatt , uncors ils passeroni oue le principal a qui sont incident sans fait . with diuers other in euery title of the law of like effect . these speciall grounds are of diuers sorts : for some concerne the very nature and essence of the title : some the consequents and incidents annexed thereunto . those which doe concerne the nature of the thing , doe flow from some of the causes thereof , as the materiall , the formall , the efficient , or the finall . some from the generall notion ; others from the speciall difference ; and some doe proceede from the effect . those which doe proceed of the consequents , concerne either the incidents inherent and inseparable , or the adiuncts and such like . which grounds so drawne , if they bee orderly disposed with all their subdiuisions , and particular rules , and the same furnished with apt cases , will make a perfect and exact treatise of such matter as concerneth that title , resembling those treatises compiled , by littleton , parkins , stanford of the plees of the crowne , and others of like forme . but in this place not intending to combine any such grounds as doe concerne one title or matter , or thereof to endeauour to draw a type of any perfect treatise , it shall be sufficient at this present , for example only , to expresse that which is here meant , by the disposing of some few grounds of the title of arbitrement , according to the obseruation aboue mentioned , that thereby might be conceiued , how such like grounds concerning one title or matter do flow from the causes and consequents of that title , whereunto they are applied ; and that a coherency of them might be both found and orderly framed for the more certaine obteyning of knowledge in obseruing this , or the like course to this hereafter following . first although we finde not an arbitrement to be defined in any report of our lawes ; yet neuerthelesse rastall in the small treatise of the termes of the law , thereof yeeldeth this description . arbitrement est un award , determination , ou iudgement , quel plusiors font al request de deux parties almenis , pur , & sur ascum dett , trespas , on outer controversie ewe perenter les dits parties . but more artificially it may be described out of the ciuill law thus : arbitrium est arbitri sententia sive iudicium inter controvertentes ; privato consensu , non autem publica interveniente authoritate , datum . out of the bookes of reports of the lawes of this land this full description may be drawne . an award is a iudgement . edw. . . . edw. . . a. . edw. . . a. giuen by such person or persons as are elected by the parties vnto the controuersie , . edw. . . b. fairfax . . edw. . . a. for the ending and pacifying the said controuersie . . edw. . . a. . hen. . . b. askewe . according to the comprimise and submission . . edw. . . a. and agreeable to reason and good conscience . . hen. . . a. touching the etymologie or notation of the names thereof , it seemeth to bee called an arbitrement , because the iudges elected therein , may determine the controuersie , not according to the law , but ex boni viri arbitrio . or else perhaps because the parties to the controuersie haue submitted themselues to the iudgement of the arbitrators , not by compulsary meanes , and coertion of the law , but ex libero arbitrio suo , of his owne accord . it is called an award of the french word agarder , which signifies to decide or iudge . it is in the saxon or old english sometime called a loueday , for the quiet and tranquillitie that should ensue thereof , and for the ending of the cause which is wrought thereby . the materiall cause whereabout it is conuersant , is the controuersie , which first may be either action , suite , quarrell , or demand ; and the second that , concerning dutie or demand , either personall , reall or mixt , or euery of them . the formall cause is , the forme and manner of the award , or the yeelding vp of their iudgement , according to reason , intent and good meaning . the immediate efficient cause , is the arbitrator or arbitrators . the mediate efficient cause , is the comprimise or submission , and the parties at variance , being also parties to the submission . wherefore for the more breuitie we will discourse of euery of these last recited , when we shall discouer the power of the arbitrator . the finall cause , is both to appease first the debate and variance so risen betweene the parties , and compremitted ; and also to reduce secondly that which was before vncertaine , vnto a certaintie . so that by these you see , that those fiue things which are found to bee incident to euery award , viz. first matter de controuersie . submission . parties al submission . arbitrators and render sur del iudgment , spoken of in . eliz. dyer . a. are here reduced into a methodicall consideration of the causes of euery award , seeing indeed , they and no other are the very causes of the same . the genus or generall notion of the former description , is , that it is a iudgement . the speciall difference whereby it is distinguished from other iudgements , and expressed in the said description , is , that it is giuen by iudges elected by the parties , and not by coertion of the law. the effect is , when it concerneth any payment of money , to alter , change and make the controuersie transire in rem iudicatam , and thereupon to giue action for the summe awarded . if it doe determine any collaterall or other matter then payment of money to bee made or done , then is it not compulsary to constraine the parties to performe it ; but euery of them is restored to his former action . except the comprimise or submission be by deed ; and so therein it resteth wholy vpon that security by bond , couenant , stature , or recognizance , by the which the parties comprimitted themselues . the adiunct , is the performance thereof and the manner how , which whether the award be performed or not , it maketh nothing to the nature and substance of the award it selfe . but neuerthelesse such performance of the award is a requisite consequent annexed to the consideration of the nature of an award . these the generall causes of an award thus considered ; next followeth the consideration of the groundes that flow from euery of them . from the materiall cause which is the controuersie , these groundes or rules are deduced . in reall matters quo concerne franke tenement , arbitrement ne lia , le title , ne done ceo . . hen. . a. in matters of realtie which concerne freehold , an arbitrement doth neither giue title nor bind the right . in reall actions , vn arbitrement nest plee . in mixt actions , arbitrement nest plee ; si non que le comprimise soit per fait . . hen. . . . newton . in personall actions sur personall torts , arbitrement est plee , coment que le submission ne soit per fait . . hen. . . b. rauish gard . in controuersie concernant le propertie de reall chattells , vn arbitrement transfer propertie de ceo accordant al agard . hen. . . b. in chattells personall , arbitrement transfer propertie . in personall dutie grounde sur specialtie , arbitrement nest availeable . . hen. , . b. hen , . . b. in controuersie ground sr matter de record , arbitrement ne sera regard . . hen. . . a. . hen. . . b. . hen. . . b. arbitrement do et este de dutie inent certaine . . hen. . . a. . hen. . fitzh . . . hen. . . b. . hen. . . a. controuersy de dett solement . ne poet este misi on arbitrement . . ed. . . a. . hen. . fitzh . arbitrement . . . hen. . . b. . hen. . . b. . hen. . . a. in contract de det oue auter chose mise en conprimise arbitrement sera bone . . hen. . fitzh . arbitrement . . hen. . . b. . hen. . . a. dett sur contract sans specialtie , per le resolution de ascuns liuers poet ester mise en arbitrement . . ed. . . a. . hen. . . a . hen. . . a. these with diuers other grounds , doe proceede , as we haue said , from the materiall cause or controuersie . there resteth now to speake of such as doe proceede from the formall cause . euery award , as touching the forme thereof , ought to haue these foure qualities . . first that it be not of a thing impossible to be performed by the parties . . secondly , that it doc not ordaine matter vnlawfull to be done . . thirdly , that the same award agree with reason and with good meaning . . fourthly , that it be sensible , full , and perfect in vnderstanding . as touching the first . . arbitrement ne doiet este de chose ou matter impossible . . edw : . . b. moyle . . edw. . . a. yeluerton . . edw. . . a. neele . . hen. . . b. keble . . arbitrement ne doiet este de chose encounter ley . . edw. . a. neele . . edw. . b. bridg. . hen. . . a. b. keble . . arbitrement ne doiet este reasonable . . edw. . . a. . edw. . . b. . hen. . . a. . edw. . . b. . hen. . . b. keble . . . edw. . . b. . edw. . . a. . hen. . fitzh . arbitrement . this ground last remembred , being generali , containeth therein many speciall rules vnder it ; whereof some doe follow . arbitrement doiet este tiel que les parties poient performer sans le assistance de ascunes auters quenx ils ne poient compela ceo faire & performer . . edw. . . a. illingworth . . edw. . . b. . edw. . . a. catesby . . edw. . . b. brian . mes si les parties ont mean per le ley a compeller tiels estrangers a ceo performer , le agard est assets bone . . edw. . . b. arbitrement g'le partie faire vn iudiciall act est bone , coment que il ne poiet ceo performe sans assistance del court. . hen. . . a. past. nonsute . . edw. . . b. brian . fine . . edw. . . a. retraxit . . edw. . a. retraxit . . hen. . . a. b. discon &c. chascune arbitrement que ne import satisfaction del tort que est mise in comprimise , nest bone . . edw. . . b. sinchd . . edw. . . b. . hen. . . a. . edw. . . a. . hen. . . a. past : . hen. . . a. port. . hen. . fitzherbert arbitrement . . . edw. . . a. choke . . hen. . . b. . hen. . . a. this ground is also generall : wherefore it shall be expedient to diuide it by the particular circumstances of cases vnto more especiall propositions , together with their seuerall exceptions to be set downe in manner following . arbiterment in tiel maner , que pur ceo que vn des parties ad les chatells delauter , que il eux redeliuera , ceo nest satisfaction . . edw. . . a. kirton . . hen. . . a. . hen. . . a. mes si sur le deliuery des biens , cesty a que serront deliuer poet auer ascun benefit , per tiel deliuery in satisfaction del tort , donque est le arbitrement bone . . hen. . a. . hen. . . b. . hen. . . a. arbitrement que vn partie auera vn parte del chose comprimise , & sr que le controuersie fat , & l'auter partie l'auter parte est voide . . edw. . . a. . hen. . fitzh . arbiterment . . arbitrement que le partie paiera part de sadett , est voide . . edw . . a. arbitrement sur matter de dett , sils agard que le parties endebted payera plus que il doit in recompence del dit dett ceo est void . . hen. . . b. keble . arbitrement que cesty que est suppose dauer fait trespas , faira de ceo son ley , et sur ceo sera discharge , nest satisfaction al auter , et pur ceo nest bone . . ed. . . b. arbitrement que in satisfaction del tort que les parties entermariont , ceo nest bone agard ; car nest satisfaction . edw. . . a. chock . arbitrement que vn des parties que est in arrerages in accompt accomptera al auter , ceo nest satisfaction . hen. fitzh . arbitrement . . arbitrement que les parties fera act a tiel iour , & deuant que le agard est perfect , le iour est passe til agard nest bone . . edw. . . a. . edw. . . a. arbitrement que refer le feasance del chose ou auter matter a tiel chose que nest in rerum natura ; tiel arbitrement est voide . . edw. . . a. . edw. . . a. . hen. . . a. haueing thus shewed the circumstances of certaine arbitrements , which haue beene taken to be against reason , sounding to no satisfaction , and therefore voyde : now resteth to be shewed certaine circumstances , in arbitrements agreeable vnto reason , and imparting satisfaction , and therfore deemed good . arbitrement do et este equall in respect d' ambideux parties , & lune come l'auter sera lie a ceo . . hen. . . a. strange . . hen. . . a. newton . . hen. . . a. newton . . hen. . . a. moyle . lou diuers dune parties , & dauter eux submit al agard , & le arbitrement est , que lune de lune partie paiera a vn auter de lauter partie tant , sans rien parler des auters ; ceo est bone agard , pur ceo que poet este que le auters naueront cause dauer ascun chose . . edw. . . b. arbitrement pur ceo que les torts fait per les parties chescun a lauter sont equal seront quit chescun vers lauter ; ceo est bone agard . . hen. . . b. newton . . hen. . . a. newton . . hen. . fitz. arbit . . arbitrement que vne des parties sera quit vers lauter , et que cesty auter paiera ou faira taut pur ceo que son trespas fut le greinder , est bone agard . . hen. . . a. . hen. . . a. newton . arbitrement que lune done al auter quart de rine , ou tiel petit recompence pur satisfaction del tort , est bone agard . . edw. . . a. . edw. . . b. belknap . . edw. . . a. nedham . si le arbitrement soit ; que vn des parties paiera grenider sum in value que le tort est que il ad fait , vncore le agard est bone , & ceo gist in discretion des arbitrators . . edw. . . chock . arbitrement , que chescun release a lauter , est . bone . . edw. . . b. danby . arbitrement que lune release tout son droit in tiel terre est bone satisfaction . si cesty a que le release sera fait soit in possession del terre &c. et ceo appiert per le agard . . edw. . . b. . edw. . b. arbitrement que lune partie done al auter tel chose , coment que le partie nad tel chose vn core est le agard bone , et il doit prouide ceo . . edw. . . a. neele . . hen. . . a. arbitrement bone in parte , et voide in parte . . edw. . . a. arbitratours poient ordaine act deste fait in lour agard pur le meliour securitie del performance de ceo , come obligation . . hen. . . b. newton . . hen. . . a. chock . chescune arbitrement do et este plaine , et certaine in sence . . edw. . . a. pigot . arbitrement est chose entier . . edw. . . a. brian . thus much touching the matter and forme of arbitrements and the axiomes , grounds and rules deduced from the same : wherein we haue not expressed euery rule that might be found in the books or collected thence , tending hereunto neither are these axiomes or propositions here put downe , furnished with all those cases , that mighe be thereunto applied . for , not intending to expresse the type of any treatise of this title ; but onely a methodicall abstract or directorie , that which is heere exemplified in part may be sufficient to expresse our meaning before declared . but to proceed . the efficient causes , and the rules drawne from the same do : come next to consideration . the first whereof is the arbitratour . of whom the author of the institutions of the canon law giueth this description . arbitri dicuntur proprie , qui ( nullam potestatem habentes ex lege ) consensu litiganttum in iudices eliguntur : in quos compromittitur , vt eorum sententiae stetur . out of the bookes of the common law , a description of an arbitratour may be thus collected . vne arbitratour est iudge priuate , esle● per les parties . . edw. . . b. fairefax . . edw. . . a. feneux . . hen. . . b. askew pur appeaser les debates enter cux . . edw. . . a billinge . et de arbitrate et adiudge selonque lour bone intent . . hen. . . a. paston . sithence in the award it selfe , the law requireth such qualities , there hath not bin made many nor scarce any question , who may be an arbitratour and who not : neither ( considering what hath beene said touching the forme of an award ) should it be greatly necessarie . therefore we will proceede respecting in the arbitratour these three things . . first his ordinance , from whom it is . . his authoritie , what it is . . his dutie wherein it consisteth . touching his ordinance , he is ordained by these two things . . first by the election of the parties . . hen. , , a. . by his own vndertaking of the charge . . edw. , , a. billinge . touching his authoritie , what it is . . first it is deriued from the submission ; and extendeth no further . . thereby he is a iudge betweene the parties . . and therefore he cannot transfer his authoritie ouer to any other . touching his duty , it consisteth in these three . . first to heare the griefe of the partie . . to iudge according to equitie . . to notifie their award . first therefore concerning the election of the arbitratours by the parties to the controuersie ( which ought likewise to be parties to the submission ) there is first of all to be considered , what persons may by the law submitte themselues to an award made by others , and what persons cannot . and therefore , si vne des parties submitt luy a vne arbitrement dune parte , et depute del auter parte in nosme del dit auter party : arbitrement sur ceo fait per enter eux , semble bon . . eliz. . a. . le baron poet luy mesme submit al agard pur luy et sa feme pur chattells des queux il adle disposicon in droit , et per reason de sa fem , et ceo liera la feme . . hen. . . b. si enfant submit luy al vne agard , il sera lye de ceo performer cy bien come home de plein age . . hen. , , a. . hen. . . a. si diuers dune parte ont fait tort a vn auter , & cesti a qui le tort est fait , et vn de les auters submit eux al agard , de cest agard fait les auters nient parties al submission aueron aduantage in extinguishment del tort . . hen. . . b. . hen. . . a. . hen. . . a. si divers del une parte submitt eux mesmes al agard de certaine persons , & divers del auter parte : les arbitratours ont power de faire agarde pur matters enter eux ioyntment , & issint pur matter enter eux seueralment . . rich. . . b. vide . hen. . . b. com. dalton . . b. si divers del une parte & de auter submit eux al agard del une , que fait agard perenter ascunes dune party , & ascunes del auter party et nemy perenter eux touts , & ne parle rien en son agard des auters , uncore tel agard est bone . . edw. . . b. thus much touching the parties that doe submit themselues vnto an award , and which make an election of the arbitratours . now followeth that somewhat be also said as touching the vndertaking of the charge of the said award . si le arbitratour protest , que il ne voile meddle ave tout ceo que est commit a luy ou conteyne en le submission ou sil fait agard tantum del percel , le agard est bone . hen. . . b. . hen. . . b. prisot , cont . . eliz. , . . . eliz. . b. . mes si le submission soit per fait condicionalment que le dit gard soit deliver deuant tiel iour : une arbitrement de percel nest bone eliz. . . . . eliz. . b. . mes uncore , si le submission soit que ils estoieront al agard des arbitratours de tout le chose comprimit ou fait pur ascun percel de ceo : donque le arbitrement est bone pur parcel . . hen. . . b. and thus much hath beene said of the taking vpon them of the charge of the arbitrement . now resteth it likewise to speake of the authority of the arbitrators themselues : which is , as before is declared , grounded vpon the submission . the submission or comprimise therefore out of the ciuill law , is thus defined . compromissum est simultanea illa partium promissio , qua sua sponte , ad alicuius boni viri arbitrium suam remittunt controversiam . submissions are in two manners , either by writing or by word . these that are by writing , are either by obligation , or by couenant . which obligation is eyther of record , as a recognizance , or by deed betweene the parties . and this submission by writing , or by word is eyther absolute , or conditionall , so that the award be deliuered by a certaine day , or such like . wherefore inasmuch as the authority of the arbitratour is deduced from the submission , it followeth that , le arbitrement que est fait de chose inent containe in le submission , est voide , , hen. , , b. , hen. , , b. forsc . , ed. , , a. chock . , ed. , , a. neele . , , eliz. , b , . mes si le submission est de chose personales arbitrators poient agard , que vn des parties fera act que est de chose real in satisfaction del personal tort . , ed. , , a , brian . si le submission soit de chose real , les arbitratours poient agard satisfaction deste fait de chose personal , , ed. , , a , brial . si les arbitratours agard , que vn des parties fera act al estranger , come feofment , ou tiels sembles , tel arbitrement est void , , hen. , , b. , ed. , , a , catesby . , ed , , b , brian . , hen. , , b. si le submission soit dune chose , le arbitrement poit esse fait de chose incident a ceo . , hen. , , b. , ed. , , a , chock . ver . , hen. , , b , , a. vpon this authority giuen to the arbitrators by the submission , to deale in manner as aforesaid , in things touching the same submission . it ensueth also secundarily , that le arbitrator est un iudge perenter les parties , , hen. , , b , ascough . , ed. , , b , fairf . , ed. , , a , leney . com. fogosta . . a. wherefore likewise it ensueth that the arbitrator being a iudge cannot transferre that his iudiciall authority to any other . and therefore , si le arbitrement soit , que les parties estoiera al arbitrement dun estranger ; ceo nest bone agard , , ed. , , a , cont. , ed , , , , a. mes si l'estranger ad sait un arbitrement deuent perenter les dits parties , le agard pur estoier a tiel arbitrement del estranger est bone , , hen. , , a , , a. mes si le arbitrement soit que les parties performera le agard dune auter deuant sait perenter mesmes les parties , lou in verity nest ascun tel agard : uncore cest arbitrement est bone prima facie tanque soit nostre que nest tiel agard , , hen. , , a , prisot . mes uncore si le arbitrement soit , que une act limit per le agard sera fait per le aduise & counseil d'une auter person , tiel agard est bone , , ed. , , a. , ed. , , a , chock . mes si le agard soit , que le act sera fait per le advise del arbitratour mesme apres le agard rendu sur tel agard nest bone , , ed. , , a , chock . si les parties eux submit al agard de certaine persons , & sil ne poient agree , donque al ordinance dun auter come umpier si les arbitratours font agard de parcel , umpier ne fera agard del auter parcel remnans , , hen. , , a , b. mes si le submission soit tiel que le umpier fera agard del tout ou parte , donque il poit faire agard de cest parte , ouesque que les arbitratours nauont meddle , . hen. . . b. prisot . now as touching the duty of the abitratours . first les duties des parties est a vener devant les arbitratours & mre lour grieues . et le arbitratour doit eux oir . et solonque ceo adiudge , ou auterment il nest bone iudge , , ed. , , a , billinge . those which affect the method of ramus ( that is to begin with the efficient cause , as here , with arbitratour ) rather then that which is vsually prosecuted by the interpretors of aristotle ( namely to begin first with the matter and forme , which wee hitherunto haue endeauoured to follow ) may heere adde to , the second part of the duty of an arbitratour ( that is , to that which hath beene here said of this iudiciall authority and iudgement ) as much as hath beene before , first of all , shewed by vs , touching the materiall and formall causes and the groundes and rules incident thereupon . but neuerthelesse , to proceed with our intended enterprise , touching the third part of the duty of an arbitrator , viz. the publishing or notifying of his award , it is to be considered that the publishing or notifying of an award is either prouided for and ordained by the submission it selfe ; or else it is left and permitted to the discretion of the arbitratour . if it be prouided for , by the submission ; for the most part it is in this manner , that either the same award made be notified to the parties , or some of them ; and that , either by a certaine day or time , or else without limitation of any time . as concerning therefore the deliuery of the award , their is to be noted ; that where such prouision is made of notification by the submission , that then ; arbitrement nest arbitrement deuant que il soit pronounce . . edw. . . b. chock . lou per le submission est ordaine ou prouide condicionalment , que le agard soit deliuer , ceo nest ascun arbitrement in ley deuant que il soit deliuer in fait . edw. . . yeluerton . . edw. . . a. chock . vide . . hen. . . a. . hen. . browne , condicions . mes si le submission soit que le agard sera deliuere al parties &c. deuant vn iour hoc petentibus , mes nul certaine iour limit quand doibt este deliuer les parties doient prender notice del agarda lour perill . . edw. . . . . &c. si diuers d'un party & diuers de auter party submit eux al arbitrement de vn auter , prouise , que il soit deliuer al parties , ou a vn de eux : ne besoign al arbitratour a deliuer ceo a ambideux del vn party ou a vn de chacuns partie : mes suffist si soit deliuer al aseun des dits parties . . eliz. . b. . si le submission soit que le arbitrement sera deliuer deuant tiel iour , il poet cy bien este deliuer per parol come per fait : si non que le submission soit que il sera per fait . . . eliz. b. . si le submission soit que le arbitremnt sera deliuer ceo poet este fait in vn county , & deliuer in auter county . . hen. . . a. si le submission soit per fait , & le temps pas in que le arbitrement do et este fait , les parties ne poient proroge le temps ouster pur faire le agard sans nouel submission a tel extent . edw. . . a. mes si le submission soit sans fait , les parties poient proroge le temps que fnt done pur faire le agard . ed. . . fitzh . agard . . si les arbitratours font lour agard per enter les parties vn iour , ils ne poient faire auter agard per enter les parties vn auter iour , coment que le temps don per le submission ne soit expire . . hen. . . a. vide . . hen. . . b. arbitrement ne poet este fait parte a vn temps , et parte al auter , coment que soit deins le temps del submission . . hen. . . a. danby . . edw. . . b. fairfax . edw. . . a. chocke vide . . hen. . . b. mes les arbitratours poient common enter eux mesmes , & agree sur vn chose vn iour , & de aute chose auter iour , & in le fine faire vne entire agard de tout : et ceo est bone . . edw. . . a. . hen. . . a. danby . si arbitratours agard vn chose de vne parte , & deuant que ils poient agree de lour agard del remnant , le temps done par le submission expire ; tout lour agard est voide . . hen. . . a prisot . but if there be by the submission no order taken for the deliuery or publication of the award ; then in honesty & conscience le arbitratour est tenus de faire notice al parties de ceo . vide . . edw. . . a. billinge . vide . . edw. . . a. b. markham . mes in rigore iuris l'arbitrement mesme est intend chose notorious . . edw. . . b. chock . . edw. . . b. chock . et per ceo . parties al arbitrement sont tenus de prender notice del agard a lour peril . . edw. . . . . . edw. . . a. . hen. . . a. coment que les parties ne sont dauer notice done a eux de l'arbitrement , vncore si les arbitratonrs agard que un des parties fera act que depend sur auter primes deste faite del auter partie , de ceo il auer notice . edw. . . b. . edw. . . b. sulliard . hitherto hath beene said of such matters where the arbitratours haue executed their authoritie without controull of the parties : but if , before any award made , their authoritie shall be lawfully countermanded . then doth there remaine in this place to be considered . . whether such countermaunds be permitted by the law. . and in what cases not . . and also in what manner the same is to be done . wherefore si le submission soit sans fait , chescun des partes poit countermand & discharge les arbitratours . . edw. . vide fitzherbert arbitrement . . hen. . . a. . hen. . . b. . edw. . . b. . edw. . . b. mes donque les parties doient doner notice al arbitratours del dit discharge . . edw. . . b. markham . edw. . . a. lakyn . mes si diuers d'vn part & diuerse d'auter partie eux submit al arbitrement sans fait , vn del vne parte ne poet discharge le arbitratour sans les auters son compagnons de mesme le partie . hen. . b. mes si le submission soit per fait vn des parties ne poit countremaund les arbitratours . edw. . fitzh . arbitrement . nient in le liuer a large . . edw. . . b. . edw. . . b. pigott . the last cause of the fower before remembred being the finall cause ( that is ) the end and scope wherefore men do submitte themselues vnto the arbitrement and award of any person , consisteth vpon two things . . chacun arbitrement est a faire final determination & de appeaser le strifes , debates & variances enter les parties . . hen. . . b. newton . . edw. . . a. lakyn . . edw. . . b. yeluerton . . chacune arbitrement est a reducer chose incertaine a vne aertainetie & nemy a reducer vn certainty in auter certainetie . hen. . a. hankford . . hen. . . b. weston . . hen. . . a. thus much hath beene said as touching the causes . now as concerning the genus or generall notion in the former definition of an arbitrement , it is to be considered , that chescun arbitrement est vn iudgement . . edw. . . b. fairefax . . edw. . . a. ieney . . edw. . a. vauasour . because the speciall difference vsed in the said former definition of an award , was this , that it was giuen by iudges elected by the parties and not by compulsary iurisdiction of the court , thereof enseweth , that il est diuersitie lou home est iudge per authorite del ley , & per election del partie mesme : car iudge de record ne doner iudgement vers les parties , sinonque ils sont appells deuant eux per proces del ley : mes autrement est dun arbitratour que est iudge per enter les parties . . ed. . . a. illing sworth . of this also ensueth , that whereas euery iudgement of record shall be executed literally , according to the warrant issuing out of the record , vpon and for the executing of the said iudgement ; yet neuerthelesse . chescune arbitrement doit este expound et intend accordant al intent des arbitratours , & ne my literalment . . edw. . . brian . . edw. . . a. b. vide hen . . b. markham . mes si l'intent des arbitratours ne estoit oue la ley : donque les parties ceo performera accordant eux parolls in tiel sence que agree ove le ley . . edw. . . b. fairefax . the causes of an arbitrement being thus deciphered , there followeth next the consideration of the effects thereof . the effects of an arbitrement are these which do ensue . per arbitrement le controuersie transit in rem iudicatam . . edw. . . a. hanmer . . hen. . . a. paston . . edw. . . a. danby . . hen. . . b. hussey . com fogassa . . a. et pur ceo lou le party port action pur le tort a luy fait , est bone plea que il eux submit al arbitrement de tiels ; qui agard que il paieratant &c mes le iour de payment , de ceo nest vn core venu . . hen. . . b. hussey . . edw. . , a. chock . . hen. . . b. newt . hen. . . a. b. paston . hen. . . . edw. . . a. mes si le iour de payment soit pass , il doit monstre que il tender les deniers al iour , & que il est vncore prist . . hen. . . b. martin . . edw. . . b. pigot . car , arbitrement per que les arbitratours agard , que vn des parties paiera money , done action . . edw. . . a. chock . . edw. . . a. pygot . . edw. . . b. townssend . . edw. . . a. pigot . fitzh . natura breuium h. . que . . hen. . . b. hussey . . edw. . . danby . et si les parties ne performe l'arbitrement , le parte est restore a son primer action . . edw. . . a. mes vncore est a son election de auer briefe de debt sur le agard , ou le primer action . . edw. . . a. . hen. . . b. mes si le payment soit fait , le primer tort est tout ousterment determin per le agard . hen. . . a. . hen. . . b. . hen. . . b : ex que ensuit auxy si les arbitratours a gardant , que vn des parties paieratant des deniers , et chacun de eux est , oblige al auter pur estoier al agard le party auera action sur le agard , & auxy le fait si agard ne soit performe . . edw. . . b. . hen. . b. si le submission soit per paroll & arbitrement soit que vn des parties fairont vn collateral act , auter que payment des deniers , ceo ne done action , & si ne soit execute in fait et satisfie , le arbitrement nad ascun effect ; et tel arbitrement ne determyn le primer tort , . hen. . . a. newton : . hen. . . a. markham . . edw. . . a. chock . comfogossa . . b. vncore si le submission soit per obligation , si vn collaterall act soit agard deste fait ; si ceo ne soit performe , le obligacion sera forfeit . . edw. . . a. thus much touching the effects of an award . a consequent thereof is , the performance ; wherin we are to consider , that . les parties doient faire tout ceo que in eux est ceo performe . . edw. . . b. fairfax . si per le arbitrement soit agard que vn act sera fait le quel home poit performer , in deux manners lun voy per luy mesme , et per l'auter voy il doit auer l'aide d'un auter person : le party doit ceo performer per tel meanes que il solement poit faire sans aid de l'auter . . edw. . . b : hussey . arbitrement ne doit este performe in part , et in part ne my . . hen. . . b. mes coment que arbitrement ne poet este fait per les arbitraetours , part a vne temps , et part a auter temps : vncore ceo poit este performe part a vn temps et parte al auter . . edw. . . b. fairfax . les parties aueront reasonable temps a eux allowe pur le performer , d'un agard , si nul temps soit limitt . . edw. . . b. . edw. . . a. b. &c. si le act que les arbitratours agard que l'un party performera , ne poit este performe , denant auter act primes fait per lauter partie , si cest partie ne fait le primer act , l'auter est excuse . . edw. . . a. arbitrement que l'un partie patera mony , & l'auter fera relcas ; ceo sera fait a vn mesme temps , si ne soit obligation a performer le agard . . hen. . . b. knightly , & reade . mes si soit obligation a performer le agard , donque chacun doit performe son parte de soubs le peril de l'obligation . . hen. . . b. reede . si obligation soit fait pur estoier al arbitrement coment que le arbitrement soit void in ley , vncore ceo doit este performe , auterment le obligation sera forfeit . hen. . . b. port. per cur. mes si action soit port sur tel void agard , le action ne sera maintaine . . hen. . . b. port. si le matter contenus in le agard , & le matter contenus in le submissior . de que les arbitratours doient agarder , differt in parolls , ou in circumstance , les parties al arbitrement ne seront receiue in sute sur ceo de auerrer que tout est vne . . . eliz. . b. . thus much hath beene spoken concerning arbitrements , their causes , effects , and consequents . there resteth to accomplish our intended methode , that we adde somewhat touching that wherewith an arbitrement is compared , matched and resembled in the booke cases . wherefore know you that , chacun accord resemble vn arbitrement . vncore chacun accord doit este satisfie oue recompence ; et accord ne done action ; leu del auter parte arbitrement pur que les parties sont adiudge de paier deniers , done action ; & ne besoique dests pledc , execute come deuant ad apparus . . hen. . . b. . edw. . . a. . edw. . . b. . edw. . . a. com. . a. fogassa . and thus farre forth for example sake , haue we set out these grounds and rules of arbitrements . whereunto if there were added , in their due places , the residue of the rules and grounds which may be collected out of the bookes of the law concerning the same , and furnishing both these and them with as many cases as might be applyed thereunto ; the same cases being put at large vnder euery of their rules , to demonstrate that in particuler , which the rule includeth in generall , the enterprise would proue ( as i thinke ) some shew of a treatise , concerning this title . which being no hard thing to accomplish , thereby would appeare that it were neither vnpossible neither vnprofitable , nor altogether vnpleasant , to reduce euery title of the law particularly to a methode ; and so consequently , the whole body thereof into a perfect shape , which now seemeth wholly without conformitie , and altogether dismembred . wherefore now , as touching the materiall cause of rules and grounds , thus much said , may suffice . formall causes and grounds of the law. the diuisions of grounds of the law , as touching and concerning the forme , are in sorte to be considered . . first , the coherence of the words and the matter . . secondly , the manner of the manifestation thereof . for the coherence of the matter and wordes , there are to be regarded these two qualities . . first , veritie and . secondly amplitude or generalitie . veritie of propositions or grounds consisteth of two sorts : for they import either a necessarie or knowne truth which cannot be impugned : or contingent veritie or probabilitie , which may sometimes notwithstanding their shew of truth , be impeached of falsehood , and so be subiect vnto many exceptions : the former of these are called primarie conclusions of reason . and the later secondarie principles . . those of the first sort are such generall assertions of the law , as are imprinted in the minde of euery man , and discerned by the light of very nature it selfe : which , as most certaine and vndoubted , neede no confirmation or fortification , but of themselues are most sufficiently knowne to be true and not impugnable : which the philosophers doe call , primò & per se cognita ; communes animi conceptiones & notitiae , familiar to the conceipt of euery person . notes collected touching the veritie of principles . principiorum . alia sunt necessaria , alia in rebus contingentibus cernuntur . axioma verum , est , quando pronunciat vt res est . axioma verum est , aut contingens : necessitans . necessarium axioma , quando semper verum est ; nec falsum esse potest . vnde aristoteles , vera quidem sunt & perspicua ea , quae non ab alijs sed à seipsis fidem habent . de primis principijs . principia nihil aliud sunt quam propositiones immediatae . ego propria cuisque generis principia appello , quae , quod sint , demonstratione probari non possunt : ( nam , quae sit verborum vu et significatio , tum principiorum , tum eorum quae ex principijs efficiuntur , intelligendum est ) quod verò ipsa sint principia , citra demonstrationem ponitur ; reliqua autem demonstratione concluduntur . prima et principia pro eodem sumo . est autem principium demonstrationis propositio , quae ob id immediata dicitur , quoniam nulla est alia prior per quam ipsa confirmari possit . primaria principia dicuntur vniuersalia quaedam iuris pronunciata , quae omnibus hominibus ita sunt impressa naturaliter et infixa , vt , velut indubitata et notissima , non alia egeant demonstratione , aut certè leui aliqua probatione confirmentur . vnde et communes animi conceptiones et notitiae appellantur quod suapte vi & perspicua sit et euidens horum principiorum veritas et natura , quasi sine aliqua dubitatione et contradictione veluti ab omnibus concessa , in disputatione sumantur . of which sort for example are some of them before mentioned , and here againe to be remembred in this behalfe , in manner following . volenti non fit ininria omne maixs continet in se minus . qui sentit commodum sentire debet et onus : fraus et dolus nemini patrocinantur . with infinite other in vniuersall manner proposed , and with not a few in speciall set forth , as in grants , as afore hath beene declared . quando aliquis quid concedit , et id etiam concedit sine quo res concessa esse non potest . in testaments . testamentum est morte confirmatum . in rents . chacun rent est issuant hors de terre . with exceeding many other of like nature to be found in euery title or tractate of the law. the manifest truth and great reason of which said grounds is euident to euery person of any iudgement , and neede no proofe for demonstration and establishing of them . secondary principles , are certaine axiomes , rules , and grounds of the law , which are not so well knowne by the light of nature , as by other meanes : and which although they neede no great proofe to be confirmed ; because they comprehend great probabilitie ; yet many times are they , at the first shew , not yeelded vnto without due consideration : and are peculiarly knowne , for the most part , to such onely as professe the study and speculation of lawes . probable they are said to bee , because , although the manifest truth of them be vnknowne , yet neuerthelesse they appeare to many , and especially to wise men , to be true . and of this sort in the lawes of the realme there are so many found , that some men haue affirmed , that all the law of the realme is the law of reason : because they are deriued out of the generall customes , and maximes , or principles of the law of nature or primary conclusions . and for the knowledge of these propositions there is a greater difficulty ; and therefore therein dependeth much the manner and forme of arguments in the lawes of england . notes collected touching the difference betweene primarie and secondarie principles . principia immediata quae in demonstrationibus accipiuntur , in duo genera distribui possunt . vnum corum quae quanquam demonstrari non possunt , non tamen ita aperta , & per se manifesta sunt , ut necesse sit ante cognita esse ei qui artem aliquam discere velit , quae nos positiones appellamus . altero genere continentur ea , quae ita sunt per se perspicuae , ut non possint non esse , omnibus multò ante cognita , & perspecta quam quicquam doceatur ; quae pronunciata dicuntur . to like effect speaketh aristotle in another place , ea pro initio & proposito sumenda sunt . quae in omnibus . vel certe in plurimis rebus inesse videntur . the former sort aristotle seemeth to call , as afore shewed , pronunciata , the other propositiones . and although in the law of the realme , they are indifferently called , without distinction , rules , principles , groundes , maximes , eruditions , and such like : yet the iudgement of massaeus herein is worthy obseruation . accursius videtur non parum aberravisse à vero , cùm idem significare voluerit principia , maximas , & regulas ; cùm ( aristotle auctore ) cuiusque scientiae principia sunt quaedam propria , quae quod vera sint non contingit demonstrari , & quae per se , & non per alia fidem'habent , quoniam nihil prius superiúsque in ea scientia est per quod confirmari explicarique possint . talium autem principiorum , nonnulla sunt positiones , alia dignitates , sic dictae , ob id quod iure illis fides habenda sit , cùm ea unusquisque audita statim admittit : quale est istud : totum unumquodlibet maius est aliqua sua parte . hae rursus appellantur maximae , propositiones , & communes animi conceptiones ; quod muliorum scilicet intellectu facile percipiantur . tales autem nonsunt regulae ; quae licet sint universalia praecepta , indigent tamen probatione , & probari possunt : nec tamen auditae admittuntur . hee seemeth to attribute the name of principles , axiomes , and maximes to the first sort , and the name of rules to the second . of the secondarie principles or rules there are two kindes . some deduced and drawne from the vsuall and ordinary disposition of things ( as hath been before declared ) and by the obseruation of humane nature dispersed in the mindes of men , collected by long obseruation : whereof some are altogether vpheld in the law vpon common presumption , and entendment : others doe rest vpon discourse of reason deducted in argument . but of the former , some are such , as although they are but probable , and import no certaine truth , and therefore may notwithstanding be sometimes vntrue : yet neuerthelesse for the great likelihood of them in humane actions , and the better to frame a conformitie , through the whole body of the law , the said lawes permit no allegation to impugne them , or any speech or auerment to impeach their credit . the first sort of secondarie rules grounded vpon entendment . others there are also that depend vpon entendment : but of the former kinde , this is one , grounded vpon naturall affection . la ley ne voit presume que ascun voit lede son heire , ou auter que est procheni de son sanck , mes que il voit plus test advance luy . which ground , vpon the presumption of naturall affection , is not such , as that it soundeth alwaies true ; ( for in diuers persons nature worketh diuersly ) wherefore although this assertion shew how euery man should be affected , notwithstanding it is no proofe that all men are so affected . and yet neuerthelesse this strong entendment of law , doth not permit any thing to impeach the same ; and will not suffer any person bound by collaterall warranty ( the reason whereof floweth herehence ) to trauerse such affection , although there be neuer so pregnant proofe to encounter the same . notes touching the definition , diuision , and necessary consequents of secondary principles . ivris praecepta secundaria sunt certa quaedom axiomata & definitiones seu regulae , quae non tam naturâ quàm civili aliquâ ratione & authoritate , aut communi mortalium usu per hominum animos diffunduntur . quae etsi plerumque verae sunt , nec valde egeant demoustratione ; non tamen ita , priusquam pressius considerentur ab illis cognoscuntur qui nostrae scientiae dant operam . quapropter , levi aliqua & verisimili ratione , ut ijs assentiantur , opus est . see the manner and meanes how they are inferred by discourse out of the generall customes or principles of reason , and the example thereof vsed by the author of the dialogues of the doctor and student . presumption or entendment of law , whereupon certaine of the secondary rules are grounded ( as before is shewed ) are in two sorts : for species presumptionum sunt duae : una , quae legitimis probationibus regulariter refutari potest , quam communē licebit appellare : altera quae reprobari non potest , quae & specialis rectè fortasse dicetur . certè magno reip. bono constituuntur huiusmodi praesumptiones : nec potest fieri ut sine praesumptionibus ulla certa iura aut ullae certae leges describantur . secondarie principles are grounded either vpon entendment of law , of which sort some are such as doe admit of no proofe to encounter them , and rest vpon entendment , but yetadmit proofe to the contrary . or discourse ofreason . so likewise the law vpon like common presumption conceiued of the acts aud behauiour of men , intendeth this principle . nul bome sans cause voile faire act a preiudice ley mesme . and hereupon the law presumeth that eucry assertion and allegation proceeding from any person which soundeth to his preiudice and hurt , is so vndoubtedly true , as that there shall not be suffered any trauers or deniall of the same . wherefore if in a praecipe quod reddat brought of twenty acres of land against one , and he , before the stature of coniunction feoffatis , had pleaded ioyntenancy with another of deede ; or sithence the said statute , if he had pleaded ioyntenancy by fine with another ; although the piea be vtterly false , yet shall not the demaundant haue any answere or trauers thereunto ; because that when the demaundant by his writ hath admitted him tenant of the whole ; and hee saith that hee was ioyntenant with another ; this other , if he bee false , may stop the tenant by this record ; to say the contrary of his affirmation , and thereby may gaine the moytie of the land , against him that hath so pleaded . and therefore , for that , that men are not wont to tell vntruths in disaduantage of themselues ; and that the saying hereof if it were not true , will greatly be to the preiudice and hurt of him that affirmed it ; thereupon the law presumeth , that it was true indeed ; and will in no wise admit the trauers against the same , or giue the demaundant abilitie to impugne it ; but hereupon presently , the writ shall abate , and no maintenance of the writ for the cause aforesaid , shall be allowed . in like manner also matters of record the entendment of law doth giue an impeachable credit . and hereof also this rule of law is drawne . matters de record import in eux ( per presumtion delley , pur lour hautnesse ) credit . and therefore none shall be permitted to say , that the kings pattent vnder the great seale was made or deliuered at any other time then that wherein it beareth date . no more then a man may say , that a recognizance or stature marchant or staple , was acknowledged , or any writ was purchased at any other time , then that wherein it beareth date . for an auerment that it was antedated , or that it was deliuered or acknowledged after the date , is an auerment tending to the discredit of the great seale , or of the iustice of officer of record which recorded the recognizance , or the statute marchant , or such like . in the dealings and affaires of men , one man may affirme a thing which another may deny . but if a record once say the word , no man shall be receiued to auerre ; speake against it ; or impugne the same : no though such record containe manifest and knowne falshood , tending to the mischiefe and ouerthrow of any person . and therefore whereas certaine persons were outlawed in the kings bench , in the time of shard iustice , and their goods forfeite , and their names likewise certified into the exchequour with an abstract of their goods , it hapned so that the name of one ( by misprision of the clarke ) was , among the rest certified likewise into the exchequour , as out-lawed and that he had goods to the value of sixe pounds , whereas indeede the same man was not outlawed . and thereupon a writ iussued to the sheriffe of that countie , where the said goods were supposed to be , to seaze the same to the vse of the king , who returned that a nobleman had seized the same goods ; and thereupon issued forth another writt out of the exchequour , to cause him to answer the same goods so seized by him , who vpon the returne of the second writ , alleadged , that the partie whose goods he had seized , was not vtlawed : and greene , one of the iustices of the kings bench came into the exchequer with the person who was supposed out lawed , and there testified that he was not out-lawed ; but shewed , that that which was certified was done altogether by the misprision of the clerke : where skipwith returned him this answer . that although all the iustices would now record the contrarie , that they could not be permitted nor any credit might be giuen thereunto , whenas there was a record extant , and not reuersed testifying the same out-lawry : yea the law so mightily vpholdeth the intended credit of a record , that it preferreth the same before the oathes of men , sounding to the contrarie , and in respect thereof , will not permit a verdit to be receiued , which might impeach the same . and therfore whereas one brought a writ of wast and assigned the wast in diuers particuler things , and moreouer in a message and tenants in wood-church ; where amongst other wasts assigued , the plaintife shewed , that the defendant had done and permitted waste in the hall of the said messnage , &c. the defendant pleaded in this action , that woodchurch was a hamlet of a. and no towne of it selfe . which plea includeth a confession of the wast to haue beene done in such manner as was declared . and vpon this plea , the parties were at issue ; with the which the iurie were charged : and further it was giuen them in charge , that if they found that woodchurch was a towne of it selfe , and no hamlet of a : as the plaintife had supposed , that then they should assigne damages seuerally for euery waste committed . the iurie at length found , that woodchurch was a hamlet of it selfe , and assessed damages for certaine of the particular wastes supposed seuerally , as they ought . and as touching the wast supposed to be done in the said hall , they said there was no such messuage . the iudges reiected their verdit , because it was contrary to that which was implyed by the plea of the defendant of record : and so inforced the iurie to giue damages for a wast : which ( indeed ) was not done contrarie to the conscience of the iuries ; notwithstanding that some of them made protestation , that in so doing they might be periured : which wholly was done onely to vphold the credit of the record ; and that the verdit ( of record ) might not be contrarie , to that which was implyed by the plea of the parties . moreouer , there is a rule of law wholy grounded vpon entendment which is this . liuery del fait sera intend in le lieu cu le date fut . the deliuery of a deede shall bee intended to be where it beareth date . which rule the law vpholdeth for certaine truth , ( although in very deed it may be at sometimes vntrue ) and therefore will not permit any proofe which may impeach the intended truth , of the said proposition . for confirmation whereof , a notable case cited in the . hen. . and by way of argument alleadged in fogassa his case , may be produced ; which was in this manner . an action of debt was brought vpon a deede ; the defendant denyed the same ; whereupon the parties were at issue ; and the witnesses produced to proue the deede were examined where the deed was deliuered : who answered : at yorke ; which was in another countie then where the said deede bare date ; and hereupon the desendant demurred : and after vpon consideration , iudgement was giuen against the plaintife in ouerthrow of the action founded vpon that deed ; which cannot be intended to be deliuered else where then at the place where it beareth date . many examples may be further produced to like effect , to proue that diuers rules there are receiued in the law which vpon presumption and common entendment , to eschew some notable mischiefe or inconuenience , are so holden for truth , that in no wise they shall be incountred ; although indeede , as occasion may fall out , they doe containe manifest and apparent falshood . but these allready in that respect alleadged may abundantly suffice for example . of like nature also there are in the law other kind of rules or principles ; which although , they doe concerne contingent matters ; and therefore may sometimes be impeached , and found vntrue ; yet doe they carry a kinde of credit also vpon presumption or entendment of law , although not so vehement as the former . wherefore although the law doth receiue them prima facie , and at the first shew , as likely , and giueth credit vnto the assertion contained in them , yet neuerthelesse doth it admit proofe to the contrarie , and so suffereth such praesumption or entendment , which vpholdeth such rules , to be impeached , and controlled by a contrarie tryall by pregnant proofe , and so doth permit any auerment to be made against the same . for example : it is a rule in law that a verdict sera intenda touts foits vray tanque il est reuers pur ceo que il est issint troue perferment de . homes . a verdict shall be intended alwaies true , till it be reuersed , for that it is so found by the oath of twelue men . and hereupon it is agreed for law , that if a iudgement be giuen erroniously , the partie grieued thereby shall not onely , haue his writ of errour to redresse the same , but also a supersedeas to countermaund execution thereupon . but if iudgement be giuen vpon a verdict although the same verdict be vntrue , and the partie greiued doe bring his writ of attaint , yet neuerthelesse he shall not in that case haue a supersedeas to stay execution , for the intended truth , which the law supposeth in the said verdict . and yet the law permitteth the falsehood in verdicts to be laid open , and punisheth them with great seueritie . hen. . . brookes case . edw. . com. . if a writt of conspiracie be brought against one , for that he gaue euidence before the iustice of peace at their sessions , concerning the suspicion of a felony supposed to be done by the plaintife , vpon which euidence , the plaintife was indicted of the said felonie ; and after found not guiltie by a lurie of twelue men ; it is no plea in this writt of conspiracie , for the desendant to say , that the plaintife was guiltie of the felonie , for that were to encounter the verdict ; which shall be entended true . and although the law doe giue credit , to all verdicts ; yet doth it not foreclose the partie greiued thereby , but permitteth him to impugne it , and to impeach it of falsehoode , if he can , by his writt of attainct . also there is a rule in the law , that feesimple ou auter estate certaine conuay a vn sera intend de continuer in le person in que il est repose , toats foits durant mesme l'estate . an estate of inheritance or other estate certaine conucied to a man , shall be intended to continue in the person wherein it was reposed alwaies during the continuance of the said estate . although this for law be prima facie intended true ; yet neuerthelesse thereunto this must be added viz. sine soit mre comment auterment ceo est deuest . if it be not shewed otherwise how it is deuised . by thus much said , it is sufficiently made manifest , that some propositions , rules and grounds of the law are intended true ; but yet proofe is allowed to encounter the same . so hither to hath bin spoken of the veritie of propositions ; whereof some are indeed and nature manifest true , and grounded on necessarie reason ; and other some are true also , but vpon matter contingent . contingent veritie was said to be of too kinds . the one grounded on common presumption and entendement of the lawes , which like wise was subdiuided into two branches . some of them such as doe not admit any contradiction to impugne them ; for the certaine supposed truth ( though indeed not alwaies found , in them , yet alwaies deemed by them ) alloweth no controll ; the other sort of rules resting vpon entendement , are such as are prima facie supposed true , but yet no otherwise supposed true then till the contrarie be proued , and they impeached of false-hood : of both which there hath beene shewed sufficient examples . now therefore in order followeth the second principall part of contingent propositions or grounds framed vpon obseruation of nature , and disposition of things , collected and drawne by discourse of reason , because it cannot be equally euident to euery mans capacitie . and for asmuch as the said discourse and manner of reasoning , through the weakenesse of mans vnderstanding , and difficultie of the matter , may faile and be oftentimes deceiued in some circumstances which may and daily do occur through the varietie of particular matter , which againe ( in reason ) may offer a contrary resolution ; therefore are those grounds not vniuersally true , but subiect to many and manifould exceptions . and yet neuerthelesse true in all such cases as are not comprehended vnder those restraints or exceptions . of which kinde we mentioned some in the beginning ; as namely . . sublata causa tollitur effectus . . qui tacet consentire videtur . . quod initio non valet , tractu temporis non conualescit . . quando duo iura in vno concurrunt , aequum est ac si esset in diuersis . euery of which many other of the like nature ; though they be of themselues , vpon the first viewe of great probabilitie ; yet neuerthelesse , being with more earnest consideration pondered , are found not so firme as they seeme , but are subiect to some controulment , and to be impeached with sundrie instances and exceptions . of such like the number is in manner infinite : at the least many thousands in our law , which are published in the french. nest loial pur ascun de enter in le terre del auter sans son licence . it is not lawfull to enter in another mans ground without license . discent de estate dinheritance in terr , toll le entry de ceste que droit ad . the discent of an estate of inheritance in lands taketh away his entrie which hath right . but these few shall suffice in this place for an example . wherefore for asmuch as the minde of man is beautified with two faculties or powers in qualitie different , though flowing from that which is in nature indiuisible ; whereof the one we now call for distinction sake ( capacitie ) and the other ( discourse ) . by the former of which we apprehend , as with the in ward eye , the naturall light and resplendency of many primarie propositions , and knowne motions ; whose clearenesse and euidence causeth euery one to yeeld thereto their consent . and by the later we doe collect , reason , argue , and infer of those former motions and resolutions , certaine secondarie propositions discended and deriued from the first , as branches from the roote , or riuers from the fountaine ; which by how much the more they are drawne from their sping , by so much the more ( by reason of the varietie of interposed circumstances ) they are oftentimes obscured and made lesse cleare and euident . and sith that euery science is not of like certainty , by reason of the variable condition of the subiect whereupon it is imploved ; so that rightly of morall philosophy ( consisting wholly of mans changeable and inconstant conuersation , and from whence indeed , the knowledge of all lawes are in a generality deriued , and thereto to be referred ) said , the philosopher aristotle right well in excuse of his purposed method in the deliuery of the same , that doctrina discernens honesta & turpia , tantis dubitationum fluctibus concutitur , ut multis lege tantum & opinione , non naturâ , constitutum esse ius videatur . it followeth me thinketh , of necessity , that it is scarcely possible to make any secondary rule of law , but that it shall faile in some particular case : whence springeth this often vsed assertion , non est regula quin fallat : and therefore the ordainers and interpreters of law , respect rather those things which may often happen ; and not euery particular circumstance , for the which though they would , they should not bee able by any positiue law to make prouision . by reason whereof they doe permit , the rules , axiomes , and propositions of the common law , vpon discourse and disputation of reason , to bee restrained by exceptions ; which are grounded vpon two causes . the one is equity : the other is some other rule or ground of law , which seemeth to encounter the ground or rule proposed : wherein , for conformities sake , and that no absurdity or contradiction be permitted , certaine exceptions are framed , which doe not onely knit and conioyne one rule in reason to another , but by meanes of their equitie , temper the rigour of the law , which vpon some certaine circumstances in euery of the said rules might happen and fall out : et omnia benè coaequiparat , as saith bracton . and therefore the author of the dialogues betweene the doctor and student describeth equity according to this the effect thereof here mentioned : which is that it is no other thing , but an exception of the law of god or of reason from the generall rules of the law of man , when they by reason of their generality , would in any particular case , iudge against the law of god , or the law of reason : the which exception is secretly vnderstood in euery generall rule of euery positiue law. and a little after , in the same place affirmeth , that equity followeth the law in all particular cases , where right and iustice requireth , notwithstanding that the generall rule of the law bee to the contrary . and the exception so framed vpon any rule or ground to the which it is annexed , doth not impeach the credit of the said ground ; but being included therein , as aforesaid , format regulam in omnibus casibus non exceptis . but lest some men might thinke , that whatsoeeuer is spoken in the said dialogues touching equity might be onely vnderstood of that equity which either enlargeth or restraineth statute lawes ( and of which mr. plowden in his appendix vnto the argument of the case of eston and studd , in his second commentaries so largely out of aristotle and bracton discourseth . there followeth in the same place of the said dialogues , and in the chapter next ensuing are proposed two axiomes , groundes , or rules , with their exceptions , there put for example , and which doe tend to the purpose and proofe of that whereof we now speake . and because that those said rules there mentioned are last of all here for example before proposed , it shall bee requisite first of all to furnish euery of them with examples . but yet for the better vnderstanding of that which is behoofefull to be knowne concerning equitie in generall , we are to note that euery rule with his exceptions or ( to speake otherwise in words ) euery receiued difference in the law ( being indeede nothing but a rule or ground and his exceptions ) doth either flow from equitie , or else result of the combining of two rules together , as before hath beene declared . the vse therefore of equitie is triple in our law : for either it keepeth the common law in conformity by meanes here mentioned . or it expoundeth the statute law. or thirdly giueth remedy in the court of conscience in cases of extremitie which otherwise by the lawes are least vnredressed . wherefore as all men endewed with the right vse of reason , and conuersant in the knowledge of any law , must of necessity confesse , that euery law doth stand vpon permanent rules , as of iron not to be bent or broken vpon this or that occasion , or to be infringed vpon this or that occurrence ( for else there neede no court of law , but all should be one with the court of conscience , and haue their proceedings framed according to the arbitrary conceipt of the iustice ) so likewise neuerthelesse , vpon euery circumstance of time , person , place , and the manner of doing , there falleth out such matter of equitie , that if law should be pursued according to the setled rules thereof , summum ius ( as cicero saith ) would prooue summa iniuria : wherefore law without equitie were rigour . and yet againe , of the other side , if all lawes should change and bee controlled as often in euery case as equitie would require , then should there be ( as aforesaid ) no law certaine . and therefore it standeth with good reason , that the common law in some cases , should allow and follow equitie , as farre forth as the constancy of the law would permit , and for the better conformity of one rule thereof with another : which common law againe in other cases should refuse equitie for the better auoiding of confusion . notes collected out of authors touching exceptions of rules , and from whence they spring . equitie therefore in all the vse thereof , and in euery of the threefold before mentioned obseruations hath a double office , effect , or function . sometimes it doth amplifie . sometimes againe ( when reason will ) it doth diminsh or extenuate . a description of the former is that which bracton yeeldeth , aequitas est rerum conuenientia quae in paribus causis paria desiderat iura , & omnia bene coaequiperat , & dicitur aequitas quasi aequalitas . this enlargeth the common law ; for it teacheth to proceed in the same from one case to another like thereunto ; and so to proceed , that si aliqua nova & inconsueta emerserunt , & quae priùs usitata non fuerint in regno ; si tamen similia evenerint , per simile iudicientur ; cum bona sit occasio à similibus procedere ad similia . and therefore these cases differing neuer so much in circumstance , so that they doe concurre in reason , should be ruled after one and the selfe same mannner . for , vbi est eadem ratio , idem ius statuendum est . but hereof we shall hereafter haue more ample occasion to speake , when we take in hand the last of aristotles , before remembred , obseruations ; namely similitudinum collectionem , or cognitionem . this equitie moreouer in satutes enlargeth the letter to cases not comprehended within the words ; if neuerthelesse they doe stand in equall mischiefe . lastly in all cases of mischiefe , for redresse whereof positiue law or ordinary rules of law are defectiue ; equity extendeth forth her hand in the court of conscience to helpe therein the said defect of the lawes . the second kinde of equity doth againe of the other side restraine the ample or generall rules of the common lawes by ministring exceptions , in like manner as is before remembred . and in statute law it doth also limit the ouerlarge letter , drawing it wholly to , and keeping it within the bounds of the intent & meaning of the makers . in the court of conscience it giueth likewise comfort , considereth all the circumstances of the fact , and is as it were tempered with the sweetnesse of mercy , and mitigateth the rigour of the common law ; and leauing the inflexible stiffe iron rule , taketh in hand the leaden lesbian rule : which being rightly swaied in cases of extremity , and herein , enioyning the common law of her strait proceeding , issueth this sentence full of comfort to the afflicted , nullus recedat à cancellaria sine remedio . wherefore if the same equity bee vsed in such cases onely as are of extremity ( as indeed it should ) it causeth the chancellour , into whose hand the managing thereof within this realme is committed to be in high estimation of honour : so that in eius sorte iuris dicendi gloriam conciliat magnitudo negotij , gratiam aequitatis largitio ; in quâ sorte sapiens praetor offensionem vitat aequabilitate decernendi ; benevolentiam adiungit lenitate audiendi . and thus much by the way hath beene spoken of equitie , upon the occasion of speech of exceptions which doe restraine rules and axiomes , that the originall fountaine from whence such exceptions doe spring , might the better and more manifestly be conceiued . and therefore thus much thereof sufficeth , reseruing the rest to his due and natiue place . now wee will proceed with the first example published in the said dialogues of the doctor and student , concerning the exceptions attributed and annexed vnto maximes , rules and grounds . there is saith hee a generall prohibition in the lawes of england ; that it is not lawfull for any man to enter into possession or freehold of another without authority of the owner , or of the law. this ground may be proued by many particular cases and authorities : for the law of property would that euery mans owne should be priuate and peculiar vnto himselfe ; and therefore it is said , that nest loyal al un de enter en mon terre sauns mov licence . lou mes beasts sont damage fesant in auter terr , ie en puis enter pur eux enchaser hors ains convient a moy primerment a tender amends . if my beasts be damage fesant in anothers ground , i may not enter and driue them out , but i ought first to tender an amends . si home ad merisme gisant sur laterr d'un auter , il ne poit iustifier le entry in le terr a veyer ceosi soit in bon plyte . if one haue his timber lying on anothers ground , he cannot iustifie his entry to see his timber in good case . si maison soit lease a moy et ieo mit mon biens en ceo & puis mon lease expire les dits biens estant in le meason , nest layal pur moy a ore pur enter en le dit meason de eux prender . if a house bee leased to me wherein i put my goods where they lye till the lease be expired , i cannot now enter into the house to take them . si ieo mit mon chiual in voster stable & vous ne voiles ceo deliver a moy , et ico enter et enfrend vostre stable , ieo sera puny pur l'entry , et le enfreinder del stable , mes nemy pur le prisel del chivall . if i put my horse into your stable , and you will not deliuer him vnto me ; if i enter and breake your stable , i shall be punished for entring and breaking the stable , but not for taking my horse . si ieo command un a deliuer a vous certaine beasts quesont en mon park , nest loyal pur vous de enter en mon park , et prender les dits beasts , ovesque cestique ieo issent command per reason de cest commandment ; car vous purra assets bien eux receiver coment que vous demurres hors del park . if i command one to deliuer you certaine cattell out of my park , it is not lawfull for you to enter into my park with him whom i commanded to deliuer them : for you may receiue them though you stay without the park . si ieo baile biens al home , ieo ne puis iustifier l'entry en son meason pur prender les biens , car ceo non fut per nul tort que ils viendra la , mes per l'act de nous ambideux . if i deliuer my goods vnto a man , i cannot iustifie the entring into his house to take them &c. si le vicont ad fierifacias pur leuier deniers recouers vers ascun , uncore si per force de ceo il ne voile enter et detraser le meason de cesti vers que le recouery fat , il sera de ceo puny pur cest entry en trespas . if the shriefe hath a fierifacias , to leuie money recouered , if by force thereof he enter , and breake the house of the debtor , he is subiect to an action of trespasse . si un vicar ad offrings in un chapel de quel chapel le franktennant est in moy ; il ne poiet ceo iustifiera l'entry et debruser de ma chapel pur eux prender hors . if a priest haue offerings in a chappell , the freehold of which is in me , hee cannot iustifie the entry and breaking the chappell to take out his offtings . si home eant in sa garren demesn spring un feasant , et lessa sa falcon voler a ceo que vola in le garren d'un auter home , et la prist le feasant , nest loial pur le owner del falcon , pur enter in le auter garren , et de la emporter . if a man spring a pheasant in his owne warren , and let his falcon flye at her , and she flyes into anothers warren and there taketh the pheasant , hee that oweth the hawke cannot enter into the others ground to take her . hauing proued the former ground with these sufficient former authorities , let vs now descend vnto the examination of such exceptions of the said proposition , as may exemplifie our former speeches ; whereof some certaine being orderly deliuered and confirmed with some authorities of booke cases , i hold it sufficient so to make manifest our meaning at this present ; leauing a more exact consideration thereof to more fit place and opportunity . we are therefore to conceiue that there is an infallible rule of law , that le common wealth est deste prefer devant ascun private wealth . the common wealth is to bee preferred before any priuate wealth . by reason whereof lest contradiction betweene the said proposed rule and this now in hand should ensue vpon some circumstance which may fall out ; therefore the said last specified ground , concerning the benefit of the common wealth ; doth minister an exception for the better vnderstanding of the aforesaid rule proposed , namely , that home poit iustifie son entre en le franktenement ou sur le possession de un auter si soit pur le benefit del common wealth . a man may iustifie his entry into anothers free-hold , if it be for the good and benefit of the common wealth . and therefore these cases following depending therupon are produced to proue & manifest the same . si ieo vien in vostre terre , et occide un fox , un gray , ou un otter , pur cest entry ieo ne sera my puny , pur ceo que sont beasts encounter le common profit . if i come into your ground to kill a fox , gray , or otter , for this entry i shall not be punished ; for they are beasts against the common profit . pur le common wealth meason sera plucked down si le prochein meason soit ardent . for the good of the common-wealth an house shall be pulled downe if the next be fired . et suburbes del citie seront plucked downe in temps de guerr , pur ceo que ceo est pur le common wealth : et chose que est pur le common wealth chascune poit faire sans aver action . and the suburbes of a citie shall be razed in the time of war : and that which is for the good and profit of the common weath any man may do without danger of anothers action . home iustifiera son entry in auter terr in tempore de guerr pur faire bullwarke in defence del realme , et ceux choses sont iustifiible & loial pur maintenance del common-wealth . a man may iustifie his going into another mans ground in time of war to make a bulwarke in defence of the realme &c. pur felony , ou pur suspicion de felony home poit de bruser meason pur prender le felon , car il est pur le common wealth pur prender eux . for felony or suspition thereof a man may breake a house to take the felon ; for it is the good of the common-wealth , to haue him taken : with such like . moreouer because there is another rule of law , that nul prendra benefit de son tort demesme . no man shall take benefit of his owne wrong . and sometimes it falleth out that men , through malice to haue others in danger , would not sticke to lay a traine to intrap them to the intent , that they might , by some colour , for their further vexation , prosecute suite against them ; to vphold the conformity of law vpon those two grounds , that one of them do not encounter the other , there is a second exception to the former rule namely , that si home soit le cause pur que vn torcious entry est fait sur son possession , il nauera de ceo remedy : mes le party que ad issent enter ; sur le matter disclose poit ayd luy mesme & iustify tiel entry . if a man be the cause that a wrongfull act or entrie be made vpon his possession , he shall haue no remedie for it , but the partie who hath entred may disclose the matter to iustifie his entrie . home ad vn molyn , & l'cau courge per le terr d'une auter al dit molyn , le tenant del terre mise stakes deins le dit eaw sur que il edify vn meason , pur reason de quel l'eaw ne poit vener cy bien al dit molin come devant : le tenant del molin enter en la dit terre , & enraca les stakes , per que la dit meison eschew : et in trespas pur entry en la dit terr & enracer la meason tout cest matter pur auoider le dit nusance fut plede per le defendaunt & tenus bon iustification . a man hath a mill , and the water running to it cometh through anothers ground , and he fastneth stakes vpon the ground in the water , and buildeth an house ; by reason whereof the water cometh not to the mill aswell as in time past , the miller entreth vnto the others ground and breaketh downe the stakes , and thereby the house falleth ; if the other bring an action of trespasse against him , for this , he may shew that he did it , to auoyde wrong done to himselfe , and iustifie the deede . home auer pris les beasts de i. s. & eux impound in sa terre , & vint vn pur repleuy mesme les beasts , et pur ceo que cest que ad eux destraine ne voilet suffer les beasts dests repleuy , il oue ares & sagitts , sagitta al cesti que vint pur eux repliuy eaut in le porte de mesme le close lou ils fuere impound , pur que il pur doubt enfrenit le close in auter lieu , et enchase hors les auers que fueront impound , et pur cost entry et infrenider del close , le pleintise port trespas , et sur tout cest matter disclose ceo semble bone iustification . a man hauing taken i. s. his goods , and impounded them in his owne ground , a repleuin was brought for those cattle , and he that destraind them would not suffer any repleauin to be made , but standing in the gate of the close where the cattle were impounded , shot at him that came to make the repleuin , whereupon he broke the close in another place , and drew forth the said beasts : for which breaking the plaintifes close , he brought an action of trespasse ; but vpon this matter disclosed it was taken for a good iustification . in trauers , le defendant dit , que par ceo que le plaintife violet aver le defendant in son dainger , il commaund vn son sruant de chaser les beasts de defendaunt inles blees del plaintife mesme , et le defendant cy hast wenit que il auoit notecede ceo , il enter en le dit terre le plaintife , et eux enchase hors : et ceo fuit tenus bon pleanient amountant al generall issue . in an action of trespasse , the defendant said , that because the plaintife would haue the defendant within his danger , he commaunded one of his seruants to driue the defendants beasts into the plaintifes corne , and the defendant assone as he had notice thereof , entred into the plaintifes close and draue them out ; this was taken for a good plea , and not amounting to the generall issue . in travers pur entry in le close &c. del plaintife le defendant iustifiera , pur ceo que le defendant fuit chiuauchant en le roial chimin que gisott pres le meason del plaintife , quand il vint la encounter la dite mese , la vient le plaintife oue arke et sagitts et fist vn assault sur le defendant , pur que il avoide son chiual , et sua in la dit mese , et ouster in le dit close ; et puis reuint in le dit chimin . et ceo fuit tenus bon iustification , si il voile adde a ceo que le chymin est in mesme le ville que le meason est , ou in quel vile ceo est , et que le fuis del mease ful ouert al temps : per que le defendant issint dist accordant . in an action of trauerse for entering into the plaintifes close , the defendant iustified , for that he ryding in the kings high way , which lay neere to the plaintifes house , the plaintife set vpon the defendant , when he came neere against the plalntifes house , and assaulted him with bow and arrowes , whereupon he forsooke his horse and fied into the house , and so through it into his close , and after returned into the high way ; and this was taken for a good iustification , if he had shewed further that the highway was in the same towne where the house was , and shewed in what towne the house was , and that the doore of the house was open &c. moreouer where there is a ground or rule of law , as hath beene often before remembred , that quando aliquis quid concedit , et id concedere videtur sine quo res concessa esse non potest . hereof ensueth a third exception to be annexed vnto the said former ground in this manner . si home ad interest ou authority deriue de ascun person , owner , et possessor del soile : le quel cesty a que le interest ou authority est done , ne poit accomply sans entry in la terr ou mease de cesti que issent done la interest ou authority , la son entry est imply in la dit interest ou authority : et pur tel cause son entry la serra iustifiable . le abbe de hyde fait lease d'un ferm rendant rent a son monastery vient al mains le roy hen. , per le statute de dissolutions , que puis ceo grant ouster al estranger : le lessee del dit ferme poit bien venir al dit monastery la a tender la dit rent , et cesti que ad le possession de ceo nauera enint trauers pur tel entry . si a : soit tenus a b : in vn obligation de . l. pur paier a luy l. a tel iour la intant que nul lien est expres pur le payment . a : est tenus a querer b. inquocum que liew que il soit : et si b : est in son meason demesue , et vient a luy la , et tender le argent , il ne sera trespasser pur le vener la mes sil vst este in la meason de ascun auter home la il seroit trespassor al dit home : mes in lauter cas intant que il fut assentant que il paira a luy les dits deniers , et in ceo fut il containe que il fut assentant que il vener a luy pur ceo purpose : il ensuit ex consequenti que il ne puniera luy pur ceo chose a que luy mesme fut priuy et agreement . si ieo enfeoffe g. et face litre d'attorney a. c. a deliuer seisnia g : pur le venider sur la terre et pur l'entry fait per g. de prender la livery , g. ne sera punish in trespas car il est impossible que il receivera livery si non que il entra in leterre , et il est imply in le fesance del feosment que il viendra sur la terr de prender livery . si home moy grant pur foder in son terre , et de faire un trenche de tiel sont ou spring iusques a mon place , si puis le pipe est estopp ou enfreint issent que l'eaw issu hors , ieo ne poi foder in son terre pur mender le pipe , car ceo ne fut grant a moy &c. mes cest opinion fut deny per tont le court car fut dit , que il poit enter et foder pur ceo mender , pur ceo que est incident a tel gront a ceo discourer et d'amender . intrauers pur entry en un meason le defend aut dit que long temps devant le trespas que a. fut seisi del dit meason in fee , & que ceo est in tel ville & deuisable per testament , per que le dit a : deuise le dit maison a vn fem in taile , & que sil deuy sans issue que son executor ceo vendroit , & fait le defendant son executor & deuy la fem entermary oue le plaintise et puis deuy sans issue pur que le defendant enter sur le poss : le plaintise a voir , si fut bien repaire al intent de seavoir a quel value le reuercion fut a vender , & ceo fut tenus bone iustification . in trauers pur entry in meason et prisel del biens le defendant dit que le baron del plantise fut possesses des dits biens et suit seisy del dit meason infee , et sait le defendant , et auter ses executours et devy possesses des dits biens , et le defendant vint al dit meason apres la mort le testatour pur administer et trovant shays del dit meason ouert il enter et prist les biens , et ceo fut tenus bon plee per tout le court. by reason also that there is a rule of law. that le possession del terre de chescun home est subiect al iurisdiction del ley . thereof also this exception following holdeth likewise place in restraint of the said former generall rule or ground , that is to say , lou le ley done al ascun authority de enter in auter ter ou sur le possession del auter , il iustifiera son entry . si ieo suis scisi de terre in fee sur bon et indefesible title , et vn estrange demand cest terre per precipe vers un auter estranger , et sur ceo le vicount per force del precipe vient sur la terre ove sommoners , et summon luy vers que le precipe est pert , et puis le demandant recouer vers luy per default ou per issue try sur certaine point , et perforce de haberi factas seisniam le vic vient arere & mist cesty que ad recouer in seisni ; reo ne puniera le vicont pur le primer vener , ne pur le second vener in le terre , pur ceo que le vicont ne sait riens mes execute le mandement le roy come il ad in charge , et mon possession est chargeable a cost iurisdiction del roy & ses ministers . si home fait lease pur vie , & un vilain purchase le revercion , semble a litt. que le signor del villein poit maintenant vener al terre et clayme mesme le revercion , et per tel clayme le reuercion est maintenant in luy , et per tel vener a le terr et act fait il nest trespassor . si vilen purchase advowson pleni dincombent , le signior del vilein poit vener al dit elglise , et claime le dit advowson , et pur ccole incumbent ne punishera luy per tiel vener al dit elglise . intrauers le defendant plede que il fut seisy del meason et terre et ceo lease al plaintife pur terme de ans , et que fut certifie que wast fut fait et il enser in le close & meason pur veiwer siwast fut fait , et le huis del maison fuit ouert , & demand iudgement et ceo sut tenus bonbarr ; a que le plaintife replica que il la demurr encounter le volunt le plaintife uniour et un nuict , &c. hitherunto haue we expressed certaine exceptions of the fore specified grounds which are deriued from the reason of some other grounds and rules of the law , and which reason would should be added , as restraints vnto the said former rule of law first remembred for conformities sake , and that the law no way be impeached of contrarieties . now resteth also that we deliuer some few other exceptions vnto the said generall rule drawne likewise from the fountaine of equitie ; which are such as doe ensue . sith it were voide of all reason and conscience that a man should punish a wrong done vnto him , by the which he either sustaineth little or no detriment or damage , or at leastwise more benefit then he sustaines preiudice : therefore this exception vnto the said generall rule , is among other likewise allowed for law . that . loa le party sur que possession home fait tortions entry est plus benefit per tiel entry que preiudice la home bien iustifiera la dit tortions entry . which the cases following doe likewise at large sufficiently confirme . si ieo sue in peril deste murder in mon close , ou in mon meason , il est loial a chescun de enfrender mon meison ou close pur moy avder , pur ceo que est pur mon benefit . si ieo voy vostre beastes demesne in vostre corne , et ieo eux enchase hors , teo ne sera my puny pur ceo que fut pur vostre aduantage , et vous aves inter est in les beastes mes si ieo chase les beastes d'un estranger hors de vostre corne , ieo seray puny pur ceo ; car vous puisses aver remedy pur ceo ; seil : per distresse . si ieo voy le chimney de mon vic in urant , pur saver les choses pue sont deins son meason , ieo iustifiera l'entry in le meason , & deprender les hiens que ieo troue de deins pur eux saver . in trauers de parco fracto , le defendant iustify le trauers pur ceoque fut controvercy perenter luy , & le seigneur de huntingdon plaintife pur le overtune d'un gorce , et pur ceo que le dit signeur fut in le dit parke hunting , il enter pur les portes eant overt a monstrer a luy ses euidences concernant le dit gorce et ceo fut tenus per tout le court bone iustification . againe , the like equity doth minister one other exception of the like quality ; for it were vnconscionable and vnreasonable that a man should bee punished for a wrongfull entry , whereas he is compelled so to doe , and cannot without his great preiudice eschew the same : and therefore it is holden for law , that si home enter sur le possession de un auter , lou il ne poit auterment faire sans son grand preiudice , ceo ne sera deeme tiel entry de que il sera puny . si home ad querck cressant in midds de trois maisons , et il descoupa ceo , et le querckeschet in terr d'un auter , si il iustify in travers il covient de alleager que il ne auterment puit faire . home de coupa thornes que cress inson terr et ils eschaont in terr dun auter , & il enter & eux prender hors , sil ne poit in auter maner faire , ceo luy excusera . si home chase avers per le chymin , et les beasts happont de escaper in les blees de son vicin , & cesty que eux enchase enter freshment in le terr de eux enchaser hors , pur ceo que ils ne ferront ascun damage , il iustifiera tiel son entry intrauers . and thus much hath beene said touching the first ground proposed in the said dialogues of the said doctor and student , which hath beene proued in particular with cases , and thereunto haue beene annexed certaine exceptions which haue likewise beene fortified with booke cases and authorities whereby the former assertions haue not onely beene exemplified , but also thereby it doth plainly appeare , that almost euery disposition in the lawes , de qualitate or de iure is in conference of maximes , and resteth betweene the rule and the exception , which is either ministred by reason of equity , or vpon some other rule or axiome . so that euery difference shewed betweene cases , is nothing else but the rule and his exceptions ; the effect whereof briefely is set forth by morgan , who saith : that maximes ne doient este impugne , mes touts temps admit mes les maimes per reason poient este confer et compare l'un oue leauter , coment que ils ne variont : ou per reason poit este discusse quel chose est plus precheni al maxime ou meane perenter les maximes & quel nemy : mes le maximes neunque poient este impeach ne impugne , mes touts ditsdoient este obserue et tenus come firme principles de eux mesmes . for the better vnderstanding whereof , wee may note that all matters of debate which may be referred to the controuersies or questions de qualitate or de iure , as hath beene said , haue either commonly a maxime of the one part , and a maxime of the other ; or severall resons of each part deriued from sundry maximes ; or else that there is a maxime of the one part , and there is equity and reason which doth minister an exception to that maxime or generall rule : so that all disceptation herein is , as hath beene said , in conference or comparing of maximes and principles together discoursing , which thing is directly vnder the reason of the said maxime ; and what matter or circumstance may make a difference , and will be by exception exempted ftom the same ; as more at large hereafter in the declaration of the vse of these maximes may be made manifest and apparent . now resteth moreouer to prosecute the second axiome or principle proposed in the said dialogues , namely , that which followeth there in the seauenteenth chapter of his first booke , that is to say : it is not lawfull for any man to enter vpon a discent . which ground being expounded by littleton in his chapter of discents to extend only to discents of an estate of inheritance and freehold , and not of a reuersion or remainder , all which followeth after in the said chapter , are nothing but cases of exceptions vnto the said grounds , as it is euident vnto euery one that considereth the same , and therefore shall it heere be needlesse long to insist thereupon . neuerthelesse it shall be expedient to shew some exceptions thereunto , especially some certaine , of such of them as being exceptions vnto the said rule , are againe restrained with other exceptions . because there is a rule of law , that laches ou folly ne sera impute a un enfant de luy preiudice . therefore lest contrarietie might happen in consequence of reason betweene the said rule of discents , and this rule last remembred : there is ministred by the meanes of this later rule , an exception vnto the said former ground namely , that if an infant haue right of entry , he may enter vpon a discent . this exception , although it doth import great probabilitie of truth , yet is the same like vnto the ground in this respect , namely , that it is also subiect to be restrained with another exception , viz. if an infant , or such priviledged or excepted person haue a right of entry , and a discent of those lands is had to one that hath a more ancient right ; the party hauing such ancient right , shall be remitted : and both the right and entry of the infant taken away . and this exception ensueth of another generall rule of law , which is , that an ancient right shall alwaies be preferred before an other meane right or title . the said exception vpon exception grounded vpon the last remembred rule , may be plainely proued by this case . if tenant in tayle doe discontinue and after doe disseize his discontinuee , and during that disseisein the discontinuee dieth , his heire within age ; and after the tennant in tayle doth die seised ; and this land descendeth vnto the issue in tayle , the heire of the discontinuee being still within age ; this is a remitter , and the entry of the heire of the discontinuee is tolled , notwithstanding that the ground and principle is , that the laches of the enfant shall not preiudice the enfant . and the cause is the ancient right the issue had . moreouer the former generall rule touching discents that toll entries , hath among other , also this , exception . a discent had during the couerture , shall not toll the entry of the woman or her heires after the couerture dissolued . but because there is a generall rule of law , that none shall be fauoured in any act wherein folly may be imputed to him . from whence is deriued also this more speciall rule or ground . couerture shall not ayde a woman where the taking of a husband which respecteth not her benefit may be imputed to her folly . hereof ensueth this exception vpon exception to the said former remembred rule , that where folly may be imputed to the woman for taking of such a husband as will be heedlesse of her benefit , there a discent , during the couerture , shall bind the woman and her heires . much more might be said of like effect , but this for example sake shall suffice . now resteth briefely to say something touching the first proposed latine rules : of which the forme was this , sublata causa tollitur effectus . this rule is not absolutely true ; for the philosopher from whence it is borrowed , doth vnderstand it , de causis internis , non de externis . the ciuill lawyers doe restraineit in this manner haec autem gnosis sine regula , de causa finali , non de causa impulsiva intelligitur . the common law of the realme , thus ; sublatâ unâ causâ , si alia remanet , non tollitur effectus . the second rule ; which was this , qui tacet consentire videtur , is verified with this exception . si ad eius commodum & utilitatem spectat , praesens & tacens pro consentiente habetur . the third rule was this , quod initeo non valet , id tractu temporis non convalescit . which ground may bee confirmed with many cases , yet is the same ground restrained with this exception , because that habet locum in his tantum quae statim debent valere , & nullam suspentionem habent . if a man make a lease for life of land vnto i. s. and after doth make a lease for yeares vnto i. n. of the same land to begin presently , this lease being made by word , is void ; for the freehold in the first lease is more worthy , and by law intended to be of longer continuance then the terme in the second lease : yet if the first lease die , or surrender afore the second be expired , the residue of the terme is good . if the father deuise his land vnto his daughter and heire apparant , and after leauing his wife enceinct , or w th child with a sonne , vpon the death of the father this deuise vnto the daughter is voyd , for that she is his heire ; but after , when the sonne is borne , it is good . the fourth rule of the said latine rules before set downe , was this , quando duo iura in uno concurrunt , aequum est ac si esset in duobus . this rule hath exception grounded vpon another rule , that is , that vigilantibus & non dormientibus iura subi eniunt . or to the same effect ; v●icuiou : sua mora nocet . and therefore in causes de negligence on laches divers droits concurrant in un person ne seront deeme si come ils sussent in divers persons . where , if tenant pur auter vie be , the remainder for life ouer to another , the remainder in see to the right heires of the tenant pur auter vie , if the said tenant pur auter vie be disseised , and the disseisor leuie a fyne with proclamations , and the fiue yeares doe passe , and after cesti que vie dyeth ; and after also dyeth he in remainder for life ; hee which was tenant pur auter vie shall not haue other fiue yeares after the death of the tenant for life in remainder to pursue his right for the see simple . vpon like reason , if a bishop be seised of an aduowson in the right of his bishopricke , and the church become voyd , and six monthes do passe ; the bishop shall not haue other sixe monethes as ordinary , the same church being in his diocesse , as he should haue if the same church were of the patronage of another person , although hee bee in one respect patron , and in another ordinarie . hitherto haue we entertained discourse as touching the verity of axiomes , rules , and grounds ; which , as hath beene shewed , is either necessary or contingent . contingent verity was diuided into two branches ; the one resting vpō the entendment of law ; the other being deriued from the disposition and nature of humane things , by debate and discourse of reason . of the first sort there are two kindes ; for some propositions there are , although of themselues but onely probable , yet neuerthelesse are supposed of such certainty , that no averment shall bee receiued to enounter the same . othersome , although they be by the law intended true , prima facie , yet neuerthelesse the same law alloweth an averment , and admitteth proofe to impeach the same . those moreouer which rest vpon discourse of reason , are subiect to diuers exceptions , the materiall cause whereof is , the infinite variety of circumstances that in all humane actions doe happen . the forme and nature of the exception is perceiued and knowne by this effect following ; in that it restraineth the ground vnto which it is connexed . the efficient causes are two , viz. equity or some other ground of the law importing contrarietie . and the end thereof is conformity and coherency of law agreeable vnto iustices whose minister the law is . moreouer as occasion hath bin offered in the declaration of the causes from whom exceptions of rules doe spring , there hath beene shewed the vse of equity in the common law , statute law , and chancery , by the two effects thereof , application and restraint ; the one enlarging , the other abridging . wherefore now resteth to speake of the second principall part , concerning the forme of axiomes , namely , generallity : the consideration whereof , bringeth to memory , that god in his most excellen worke , of the frame of transitory things , though he hath furnished the world with vnspeakable variety , thereby making manifest vnto all humane creatures , to their great astonishment , his incomprehensible wisdom , his omnipotent power , & his vnsearchable prouidence , yet , being the god of order , not of confusion , hath admitted no infinitenesse in nature ( howsoeuer otherwise it seeme to our weake capacities ) but hath continued the innumerable variety of particular things vnder certaine specialls ; those specialls vnder generalls ; and those generalls againe under causes more generall , lincking and conioyning one thing to another , as by a chaine , euen untill we ascend unto himselfe , the first chiefe and principall cause of all good things . and this is that which plato out of homer , was wont to call iupiters golden chaine . the eye whereby we doe see and viewe , and the in ward hand whereby we doe reach and apprehend these things , is mans vnderstanding , which is wholly imployed about vniuersality as about his proper obiect , by meanes whereof , in all things rationall , being discouered by the vse of reason , mans vnderstanding for the attaining of knowledge proceedeth from the effect to the cause , and againe from the cause to the effect ; that is from the particular to the speciall , and from the speciall to the generall ; and so to the more generall , euen to a principall and primary position or notion , which needeth no further proofe , but is of it selfe knowne and apparant . and so againe from such chiefe and primary principles and propositions to more speciall and peculiar assertions , descending euen to euery particular matter . but that , of this which hath beene said , some example might be shewed , especially in this matter , which we now haue in hand , namely , concerning the grounds and rules of the law of england ; let one of the proposed grounds first before mentioned stand here for an example , viz. nihil est magis rationi consentaneum , quam codem modo quodque dissolvere quo constatum est . this principle being a rule of reason containing great probability , and being of the number of those that before we said to haue beene deriued from the obseruation of the nature of things , which though it be subiect to manifold exceptions , yet neuerthelesse as a generall rule , the same is verified in many speciall axiomes ; and they againe diuersly subdiuided into many more peculiar propositions ; as the example of these following may make manifest . cesty que est charge pur record doit luy discharger per record . cesty que est charge per fait doit luy mesme discharge per fait , ou per auter matter cy haut . cesty que est charge fo rs que pur parol , poet este discharge pur parol . of which generall propositions there can be made no better reason then by the commemoration of the said first aforeshewed generall rule . moreouer , the first of the last aboue remembred comprehendeth vnder the generality thereof certaine other more speciall rules : as in det sur arrerages de accompt que est matter de record , le party doit discharger luy pur matter cy haut , & nemy per specialty , on fait ou auter matier que nest cy haut . . hen. . . a. . hen. . . a. . hen. . . b. . hen. . . a. . hen. . . b. . hen. . . a. . hen. . . b. . hen. . . b. in det sur recouery , home ne sera discharge mes per matter cy hout : ou a tiel effect . . hen. . a. vnder the second rule or ground before proposed touching a discharge where the party is charged by matter of specialty ; those speciall rules following are likewise comprehended . in nul casehome ne poit avoide single obligation , sans auter specialty de auxy haut nature . hen. . . b . hen. . . b. . hen. . . b. home que ad enfreint covenant ne pledera matter in discharge de ceo sans sait . . hen. . . b. . hen . . b. . hen. . . a. home ne dischargera luy mesme d'un annuitie que charge son person sant specialty . . hen. . . b. . hen. . . a. dyer . the first rule of these last remembred grounds , namely , touching obligations , is againe diuided into diuers particulars ; as for example . arbitrement ne dischargera home de un duty due per unobligation . . hen. . . b. . hen. . . a. si le obligee deliuer l'obligation al obliger come acquittance , & puis ceo prift de luy , & comence sute sur ceo ; cest deliuery ne sera discharge del obligation . . hen. . . a. . hen. . . a. dyar . hen. . . b. the other following concerning indentures of couenants , may likewise be diuided into other more particular assertions : but to avoyde rediousnesse , these already shewed abundantly manifest our meaning , and therefore may suffice : the vse of this kind of obseruation of the generallity of rules and propositions is manifold . first , things proposed in the generallity are best knowne and most familiar to our conceipt , sith they be the proper obiect of our vnderstanding , as before is declared . secondly , they doe better adhere and sticke in memory , sith intellectiue memory is ( as the vnderstanding is ) imployed about vniuersall and generall things . thirdly , vniuersall propositions are the precepts of art , and therefore they are called perpetuall and and eternall : for no art , science , method , or certaine knowledge can or may consist of particularities : for the orderly proceeding of euery art , methodically handled , is from the due regard had of the generall , to descend vnto the specialls contained vnderneath the same : wherefore it ensueth hereof , that generall propositions are the most speedy instruments of knowledge : for experience , which wholly is gotten by the obseruation of particular things ( being depriued of speculation ) is slow , blinde , doubtfull , and deceiueable , and truly called the mistresse offooles . notes collected out of authors touching the obseruation of generall propositions . if perchance vpon occasion of some former speeches here published touching the vniuersallity of grounds , there be demanded this question . why the lawes of england at the first and from time to time , had not beene published after this method of generall and speciall rules with their exceptions . i answere thereunto , that many ancient writers attempted that kinde of writing , and accomplished the same according to their seuerall and sundry gifts more or lesse perfect each then other : as by the treatises of glanvile , braction , britton , and others appeareth . secondly i say that forasmuch as daily new questions came in debate whereof before had beene no resolution , and wherein many times the least variety of circumstances doth alter the law ; therefore our ancestors thought it more convenient , to be rather gouerned by an vnwritten law , not left in any other monument , then in the minde of man ; and thence to be deduced by disceptation & discourse of reason : and that when occasion should bee offered , and not before . thirdly , it is more conuenient and profitable to the state of the common wealth to frame law vpon deliberation and debate of reason , by men skilfull and learned in that facultie , when present occasion is offered to vse the same , by a case then falling out and requiring iudiciall determination : for then is it likely , with much more care , industrie and diligence to be looked vnto ; and much more time of deliberation is there taken for the mature decision thereof , then otherwise upon the establishing of any positiue law , might be imparted concerning the same . last of all , sith all good lawes require perspicuity and plainesse ; and that in generallity , for the most part , lurketh obscurity ; therefore there is nothing of more force and effect touching the making and framing of a good law , then the present occasion offered , sith thereby it brought to light , that which otherwise would not asmuch ( many times ) as be thought vpon , and giueth occasion to dispute that which none would haue thought euer should haue come in question . and therefore not without due consideration among the romans , disputationes fori , and with vs demurrers haue euer beene allowed as originalls of law. as touching the manifestation of rules , all are affirmatiue or negatiue : wherein though the affirmatiue be , for many causes , the more worthy ; yet such negation as implyeth affirmation ( and therefore called pregnant ) is not without some vse in the setting downe and deliuering of exceptions and generall rules . and thus much touching the forme of rules , grounds , and axiomes . the efficient cause of rules , grounds , and axiomes is the light of naturall reason tryed and sifted vpon disputation and argument . and hence is it , that the law ( as hath beene before declared ) is called reason ; not for that euery man can comprehend the same ; but it is artificiall reason ; the reason of such , as by their wisdome , learning , and long experience are skillfull in the affaires of men , and know what is fit and conuenient to be held and obserued for the appeasing of controuersies and debates among men , still hauing an eye and due regard of iustice , and a consideration of the common wealth wherein they liue ; for well saith aristotle , hoc qu dem perspicuum est , leges pro ratione reipub. esse scrilendas . and of this reason that wee speake of , tully hath a noteable saying . ratio est societatis humanae vinculū , ut ratio , quae dicendo , communicando , disceptando , indicando , conciliat inter se homines , coniungit , & retinet naturali societate . wherefore sith the grounds of law are the foundation of law , or at leastwise the law it selfe deliuered in manner of compendious and short sentences and propositions ; that which is the efficient cause of law , must likewise be the efficient cause of those rules and axiomes . inasmuch then as primaria efficiens causa iuris , est natura & ratio civilis , ex quibus potissimum leges emanant , & veluti scaturiunt . the same nature and reason are likewise the principall and originall efficient cause of the rules , axiomes , grounds , and propositions of the law ; i meane civilis ratio , that is reason respecting iustice and the common wealth . this reason hath in the written workes of the lawes of this land , either beene plainely published and expressed in the bookes of law , vpon deceptation of cases in debate , and left vnto posterity as the lights , rules , and directions , whereby the said cases so called into question , were at the last decided and determined . or else it is not at all expressely published in words , but left neuerthelesse implyed and inclined in the cases so decided , and therein doth as it were lye hidden ; and yet neuerthelesse to be easily , with industrie collected and inferred vpon those cases decided , and doth necessarily follow vpon the resolution of the same , and being thence drawne , may abundantly serue to infinite vses , in the determinating of other doubts ? which daily doe and may come in debate . wherefore sith in the law ( as in other sciences ) all arguments and disputation doe either consist of expresse proofe and allegation of authoritie ( which are called inartificiall arguments ) or else of application and inference ; as well the rules to bee collected vpon inference and application of other cases , are to bee regarded and to bee produced , as those which are direct authorities . and forasmuch as in very few cases of doubt newly rising in debate , and called into question and controuersie , expresse proofe and pregnant authoritie can be found ; the lawyer is most beholding to inference and application , where with hee is instructed and taught , that cases different in circumstance , may be neuerthelesse compared each to other in equalitie of reason ; so that of like reason , like law might be framed . and by how much application and inference doth more depend vpon wit and art , then the producing of expresse authoritie ; by so much the more it excelleth the same , sith the allegation of expresse authoritie , resteth wholly vpon industrie and memorie in publishing and noting that which hee findeth already framed to his hand expresse rules , axiomes , grounds and positions of the former sort are published in the booke of law , either in the lattin tongue , as are the former generall rules first mentioned , and also infinite other of that kinde ; or else in the french ; in which tongue the reports of forepassed cases are published vnto the vse of posteritie , and wherewith the said bookes of yeares and tearmes ( almost in euery case therein found ) are fully furnished . so that all , though it shall be need esse to make manifest that by example , which of it selfe is euident ; yet still to pursue the former methode and order hitherunto obserued , we shall easily perceiue the same in this short case hereafter expressed . vn home avoit a lay et ses heires le nomination del clerke d'un esglise a vn abbe , et le abbe doit presenter ouster le clerke nominate al ordinary , ore le roy ayant les possessions del abbey ad present son clerke al dit esglise estant voide sans ascun nomination . et le opinion del court fut , que le party que aueroit le nomination , auera quare impedit vers le incumbent tantum , sans ascun deste nosme patron : car le roy ne poit este sue come disturber . tamen fut dit que le roy ne poit este instrument al ascun home . et shelley dit que il est instrument a chacun home : car per luy chacun subject ad iustice a luy minister . the principles , maximes , rules , or grounds expressed in plaine words in this case , and which are indeed the very reason of the resolution therein taken , are these . le roy ne poit este sue come disturber . lou le roy present per tort , quare impedit sera port vers l'incumbent sole sans a scun deste nosme patrone . le roy ne poit este instrument al ascun home sccome son seruant . per le roy chescun subiect ad iustice a luy minister . le roy est instrument a chacun home purminister a luy iustice. so that the reasons of euery resolution in any booke case being reduced into short sentences , propositions or summarie conclusions are the grounds rules , and principles that we doe meane and speake of in this place . such summarie conclusions , corolaries , reasons , grounds , or propositions therefore as afore declared are deliuered in the bookes of reports in two manners . sometimes without any note or marke that they are grounds or rules , but onely as laid downe and dispersed in the arguments and resolutions as short reasons of the opinion or determination there expressed as in the last example appeareth . sometimes with a note or marke that they are grounds , rules , and maximes , and are expresly inuested with such names , as in the entrance of this treatise hath appeared . and thus much of the grounds or positions expressed in the bookes . now as touching the second sort , which are to be collected , and inferred out of the cases left reported , wee plainely may perceiue the notable vse of such collection , in reading aduisedly the commentaries of mr. plowden , or other the best bookes of reports ; or diligently obseruing any notable argument made at this day in any the queenes courts in matter of demurrer , where wee may not thinke that euery case cited or alleadged out of the bookes for proofe of the controuersie , is therefore alleadged because it hath expresse matter therein published in plaine words , and tending to the resolution of the point in question : but at sometimes , and that most commonly , such proofe is produced vpon inference , and yet neuerthelesse , sufficiently pregnant to approue the matter whereunto it is rightly applyed : which inference and application proceedeth wholly vpon collected rules and axiomes included in the resolution of those cases produced although the same bee not expresly spoken or published therein . wherefore notwithstanding , the best meanes of the collection of the said rules depending onely vpon meditation , and resting wholly vpon the sagacitie , wit , industrie , and iudgement of the student , ( because euery mans seuerall conceit is in it selfe sundry ) may best be referred vnto the student himselfe : yet neuerthelesse , shall it not bee amisse here to manifest such direction therein as may be obserued with some fruit . first , after the case read , let vs consider with our selues , and meditate in our mindes , to what seuerall purposes the same case may be applyed , and what matter , or seuerall matters the resolution of the said case can confirme . which when we haue considered of , it shall bee good for our memory to commit them to writing , in manner , and according to this example following . fut moue si tenant in tayle d'un manour , a que vilains sons regardant , en feoft vn des vilains d'un acre per cel del manor , et devy , coment que le manor discend al issue in tayle , vncore il ne poit seiser son vilain tanque le aer● soit recover . vpon meditation had of this case , what it will proue , these propositions or rules following may easily be collected . lou home ad forsque vn action al principal chose la il nauer benefit del accessary , tanque il ad per recouery continue le principal . and because here the whole principall is not discontinued , but onely one acre , thereof may be collected , that regardancy ou apendancy nest solement al tout le manor , mes chacun acre del demeanes . moreouer , because the principall in this case , viz. the acre discontinued , cannot be recontinued without suite to be attempted against the villen ; it followeth in reason , that he shall not be infranchised thereby : whence also this axiome is to be confirmed or proued , that necessary suite ew vers vn villen per le signor ne enfranchise le villen . here of hath appeared that although none of these propositions bee expressed in the resolution of the said case , in the booke wherein the same is left reported ; yet neuerthelesse are they necessarily imployed in the resolution of the said case , as before hath beene declared . but if the case so read doth consist of many points or seuerall questions sunderly debated , euery of them may likewise be sunderly and apart considered of , according to the manner before shewed . a second meanes , by inference to collect , such rules and propositions as are before declared , is by way of argument by syllogisme : for supposing the said case to be denyed to be law which wee haue read . let vs endeauour to draw the immediate reasons thereof into a syllogisme for confirmation of the same . so that thereby , forasmuch as all rules out of the law are of two sorts , that is , either being the reasons of the case , or the case contracted shortly it selfe , by such manner of argument , the maior , and first proposition of the said syllogisticall argument , will bee the generall reason of the said case : the minor or second proposition , will be the particular reason : and the conclusion will bee the contracted case it selfe : which also will serue as a secondarie rule to determine other cases of equall reason called into controuersie . for example herein , we will take the opinion of hulls in . hen. . . a in the end of a case there argued , where he holdeth for cleere law , that si vn home fait fine pur vn trespas dont il fut endite son boache sera estopp a dire que il nest my culpable , sil soit eint implead apres . but because the same is denyed in hen. . wee endeauouring to proue the same by syllogisme , shall not onely confirme it , but also exemplifie our former speeches . maior ] nul sera permit a denyer cest iniury pur que il ad fait satisfaction , ou ad suffer punishment . minor ] mes cesty que ad fait fine pur vn offence ad fait ascun satisfaction et in ceo ad este puny . conclusio ) il que ad fait vn fine pur vne trespas ou auter offence sera estopp a ceo denier apres . euery of these propositions bee est-soones confirmed not onely with the case before spoken ( for as they doe proue the case , being the immediate reasons thereof ; so are they to be proued againe by the case as by their effect ) but also with sundry other authorities found in the bookes of like effect . a third obseruation of propositions and axiomes may be drawne from the consideration of the titleing words ; or words which doe yeeld matter of effect ; whereof in the case last remembred are such as doe follow ; namely . fyne , estoppel , enditement , nonculpable , party , &c. and herein is to bee meditated and considered what rules may be deriued and collected out of the said case , and be referred to euery of the said titles : as namely , vnder fynes . fine fait pur vn offence proue , cesty que fait le fine voluntarunt , deste culpable del dit offence . fine fait per vn offence causera cesty que fait le offence que il ne ceo denier a apres . vnder enditement , these . si home soit convince , d'un offence sur vn enditement , que est al sute le roy , il ne deniera le dit offence , sil soit apres de ceo implede al sute del party . vnder estoppell , these . home sera estopp per matter de implication que imply le contrary de son disant de record . vnder non culpable , these . non culpable ne sera plede per ascun lou per implication il ad confess le cause del action . vnder party , these . si offence soit commit cy bien al roy que come al party condemnation al sute d'vn d'eux , aydera l'auter in son sute . a fourth manner of obseruation is to referre vnto euery ground or rule so collected , a rule , more generall , so proceeding from the speciall rule vnto the generall reason , and from that generall reason vnto a more generall : as out of the said first case may be drawne this generall rule . home ne sera permit a denier ceo que deuant il ad confess per implication de record . vnder which ground not onely , the first proposed case of . hen. . . a. may be comprehended ; and diuers others of like effect and purpose , and which doe concurre vnder the said generall rule ; as for example . he which is arraigned , after hee hath pleaded either in barre or in abatement of the appeale whereon he was arraigned , may plead ouer not guilty to the felony : except the barre or plea doe comprehend such matter as doth acknowledge the felony ; as a release or pardon . but if he doe pleade any such plea or barre ; viz. release , or pardon in any appeale or enditement , he cannot plead ouer not guilty to the felony , because thereby hee confesseth the felony by implication . if in a praecipe , the tenant say that hee is leasse for life , and pray in ayde , the demaundant saith hee hath fee , which the tenant denyeth not , and therefore he is owted of the ayde : if after he will say he is tenant for tearme of life , and vouch , he shall not be thereunto receiued . these cases with many other may bee comprehended vnder the generalitie of the last specified rule , & are one in reason , not vnder one immediate reason , but vnder this reason , viz. home ne sera admitt a contradize ceo que il ad confes de recorde . moreouer there is another case , one in effect of reason , with the former proposed case , which because it is neuerthelesse , in circumstance more generall , therefore it cannot be comprehended vnder the last specified rule , as namely . if a man bee indicted of trauers , and thereupon be found guiltie by verdict at the suite of the king ; if after , the party against whom the trauers was committed , bring action for the same trauers ; the other shall not pleade not guiltie thereunto . in the former grounds , and cases thereupon , the partie was concluded by an implyed confession ; but in this last case , he is conuinced by an open tryall or verdict . and whosoeuer will comprehend both this and the former cases vnder one ground or rule , must make the same more generall then the former , in this manner . home ne sera permit a denier tiel offence de que il poit este convince per matter de record . and forasmuch as a man may be conuinced of an offence as well by confession , as by verdict ; and that as well , by implicature confession , as by expresse confession : therefore euery of the said former cases may be concluded and comprehended vnder the amplenesse of this last remembred ground . a speciall ground may bee reduced vnto a rule or proposition generall , by seeking the genus or generall notion of euery titling word found in the said speciall ground , as for example , the said proposition before remembred , and which hath beene exemplified with cases , was this . home ne sera permit adenier ceo que devant il ad confess per implication de record . vpon the word ( denier ) it may be drawne more generall , thus . home ne sera permit de contrary son act demesne que deuant il ad conuz . a more generall reason whereof may againe bee yeelded , thus . seroit inconuenient que le ley alloweroit a dize , et a dedize vne mesme chose de record . vpon the word ( confession ) these reasons also may be assigned more generall then that first ground . confession de vn est le plus pregnant proofe que poit este encounter luy . a reason hereof : for , le confession de chacun que concerne luy mesme sera intendvray . for , nul conuoit le offence melious que cesty que ad ceo comit et perpetrat . vpon the word ( implication ) these generall rules may be proposed . confession per implication est cy sort oncounter le party come confession experss . for , pregnant implication est equiualent al matter express . vpon the word ( record ) somewhat likewise may be said of like effect ; viz. thus ; matter de record que est grounded sur le act del party mesme luy issint liera que il ne contra dira ceo apres . for , le credit d'vn iudicial act ne sera impeach per ascun que est privy a ceo . for , matter de record est plus hault testimony in ley . vnder the word ( fine ) there was mentioned this ground or rule . fine que est fait pur vn offence proue home culpable del offence . here hence these propositions being more generall , may be deriued . nul per common presumption voit faire voluntarie fine pur le offence de quel il nest culpable . a reason whereof may be thus . poena culpam implicat . and le consequent importa son principal . hereof you see what abundance of rules and propositions one case containeth ; and that we may descend from the particular case , to the speciall reason , from that to a more generall , vntill we finde out the very primarie ground of naturall reason , from whence all the other are deriued . herein this caution is to bee considered and had in minde , that in collection of grounds and principles out of any proposed case , the same may bee natiue , and alwaies appliable and reduceable to the immediate reason of the said case , so that in any occasion of argument , the same case may be a pregnant and efficient proofe thereunto . furthermore collection of propositions may bee drawne and reduced from all the principall places of logicall inuention . as from the causes vnto the effect . and contrariwise from the effects vnto their causes . so likewise from the consequent vnto the antecedent . and from the antecedent to the consequent . moreouer a paris as from the equall or like amaiors from the more likely vnto that which is lesse probable . and againe , from that which is lesse likely or probable to that which is more probable . finally , from the contrary to his contrarie : sith that eadem est ratio & proportio contrariorum : notes of authors touching the obseruation of collection of grounds & rules by inference . the reasons and causes wherefore these propositions , rules , and axioms ( as hath beene declared first in manner as aforesaid ) are not onely to be considered , obserued and collected , but alway to be had , and carefully to be kept in memorie , and the end and scope whereto they serue and tend , will manifestly appeare , as well by the obseruation of the right vse of them , and the manifold vtilitie and great helpe , which riseth by the daily meditation therein , as likewise by the consideration and amendment of some inconsiderate abuses which haue crept into the daily handling of them , both in iudiciall places abroad , and in priuate exercises at home . the necessary vse of them therefore consisteth in two parts . the one seruing to the obtaining of the knowledge of the law. the other in vse and practise of the law learned by these propositions and rules , reducing them , as occasion serueth to publique and priuate behoofe . the first is speculatiue . this last practique . as touching the first , the profit hence springing may soone be seene and discouered , if we call to our memorie , that no manner facultie whatsoeuer to bee learned by the the light of reason , can consist or be comprehended by the capacitie of mans vnderstansting , except ( as before also in part hath appeared ) it be furnished with certaine assertions , precepts , rules , and propositions , and the same adorned with these two qualities , vniuersalitie and veritie . and as none may worthily take vpon him the name of a diuine , which is ignorant of the principles of his science ; nor any man may well arrogate the title or name of a philosopher or physitian , who knoweth not the seuerall rules , whereupon , as vpon sundry foundations , the said seuerall faculties are built and erected ; so none may bee deemed a lawyer , or admitted , or can giue good aduise therein , which knoweth not the precepts whereon his art dependeth ; or hath not read the determination of former doubts left reported in bookes , being the greatest part of the written law in his land ; and thence , not collected conclusions for the decisions of present and future controuersies . moreouer seeing the law of this land is wholly rationall ( as hath beene said ) wherein , as in all other sciences , the minde of man holdeth and keepeth the former published proceeding , by apprehension and discourse , collecting primarie aud secondary conclusions and grounds , it cannot bee otherwise , but that the obseruation of these primarie and secondarie conclusions , must needs bee the best , most approued , profitable and speedie meane , for the attaining of the right , sound , and infallible knowledge of the said lawes . and if there be any way extant , or to be found by mans wisedome , to purge the english lawes , from the great confusions , tedious and superfluous iterations , with the which the reports are infested ; or quit it of these manifold contrarieties , wherewith it is so greatly ouercharged , so that the coherencie , constancie , and conformitie thereof , is almost vtterly lost , and not without some blemish and reproach of our nation and common-wealth , in manner cleane abolished ; surely , as to mee seemeth , there is likelihood by that way and meanes to bring the same to passe , or by none . for , by rules and exceptions , all sciences are and haue beene published , put downe and deliuered : out of rules and exceptions , a method is framed , by which meanes men may view a perfect plot of the coherence of things : euen as in a large spred tree , from the lowest roote to the highest branche ; from the most ample and highest generall , by many degrees of discent , as in a petigree or genealogie , to the lowest speciall and particular ; which are combined together as it were in a consanguinitie of bloud and concordancy of nature . and yet therewithall perusing the particular differences and degrees of distinction betweene them , in all the course of humane studies , there is none that doth more commend vnto our cogitations the wonderfull force of mans wisedome , then doth this discourse which treateth of the principles , grounds , rules , and originals of law and iustice , being the chayne of humane societie , without the which it cannot consist ; and which , besides the exceeding pleasure that the consideration thereof breedeth in the well affected minde , is able to bring vs speedily to ripenesse and maturitie in that profession . for , principium est dimidium totius , saith aristotle . short refined reasons of long perplexed cases , doe , through their soundnesse , satisfie our iudgements , through their breuity and shortnesse , wonderfully delight the minde , through their pithinesse , they may be deemed incomparable treasures , yeelding a great shew of wit , and wonderfully sharpening our vnderstanding , of infinite vse , in all humane affaires , containing much worth in few words , no burthen to memorie , but once obtained , are euer retained . sith all sciences doe tend to veritie ( as hath beene before often affirmed , which is the obiect of the intellectuall part of our minde ; and sith verity and truth cannot be obtained or found without due knowledge of the causes ; tunc enim ( as saith the philosopher ) unum quodque scire arbitramur , cum eius causas & principia cognoscimus . and not vnfitly said the poet , foelix qui potuit rerum cognoscere causas . then must the right and due obseruation of these and such like principles containing the causes of things , be a direction to conduct and leade vs to the knowledge of that faculty and science , whereof they are principles . for from hence all artificiall demonstrations are , and haue beene drawne and deduced . to adhere therefore and wholly to respect particular cases , without any observation of the generall rules and reasons , and to charge the memory with infinite singularities , is vtterly to confound the same ; a labour of vnspeakable toyle , and wherein we shall neuer free vs from confusion ; but engender in our selues , that wrong opinion which many haue ( amisse ) entertained , that there is nothing certaine in our lawes . finally , if the law be euery mans inheritance borne vnder the same , as notably ( besides our owne lawes ) saith the prince of oratours , tully : maior haereditas venit unicuique nostrum à iure et legibus , quàm ab ijs à quibus illa bona relicta sunt . nam ut perveniat ad nos fundus , testamento alicuius fieri potest : ut retineamus quod nostrum factum est , sine iure civili fieri non potest . and all mens inheritance should be certaine both for the priuate repose of the people , and publique good and quiet of the common wealth . wee must needs thinke the law of this land full of defect , except we thinke and deeme it to be ( as indeed it is ) certaine . who then can , without the consideration of these vniuersall maximes , propositions , rules , and principles , wherein certainty is alone conteined , attaine vnto the certaine knowledge thereof ? for as it hath beene truly published ; principiorum est unumquodque sibi ipsi fides ; insomuch that cum negantibus ea , non est dsputandum . . eliz. . a. dyer , . hitherto hath beene spoken what profit the carefull consideration aud obseruation of principles , rules , and maximes of the law of this realme doth giue vs , and what assistance we may finde therein toward the study and speculation of the same . it resteth therefore now , that somewhat be said of the commodity which may come to him , that shall mannage and practise the same lawes , and to what vse this obseruation therein likewise serueth . two kindes of arguments are noted by morgan . ily sont deux principall choses sur que arguments poient este fait s. nostre maximes , & reason , la mere de touts leyes &c. i thinke by the later of these , the vse of argumentation vpon reasons drawne from the logicall places of invention , are to bee vnderstood ; as namely to argue and reason in cases of debate , from the causes , effects , parts , consequents , mischiefes , and inconueniences and such like ; which aptly may be called naturall reason , because all art therein obserued , is but the imitation of nature : which kinde or course of argument , is much vsed in ancient bookes , when as there were fewest bookes of reports extant . but by the former of these two specified kindes of arguments , is meant as manifestly appeareth , the helpe , grounds , and maximes doe yeeld in that kinde . for the vnderstanding therefore of the right vse thereof , it behooueth to consider , that the same wholly doth consili in the apt and convenient application of the said rules , vnto such particular cases daily falling in debate , as may be comprehended vnder the generallity of the same rules , and may in euery respect berightly reduced thereunto ; so that the rule might serue as a well-grounded reason of the matter called in question . to this effect the author of the dialogues betweene the doctor and student , after hee had at large spoken of the credit and supposed certainty of a principle or maxime of the lawes of this land , addeth further that such maximes be not onely holden for law , but also other cases like vnto them , and all things , that necessariy follow vpon the same , are to be reduced to the like law. a second vse of the obseruation of principles in argumentation may be this . wee are taught ( as saith aristotle ) and as likewise hath afore beene remembred , by the election of principles to abound in matter fit for argumentation . our propositions may be framed as parts of syllogisme , or as antecedent propositions of enthymemes , by which forme of arguments , this profit and commodity is reaped , that he which rightly useth the same , in proofe or disproofe of any proposed matter shall not need to fall into any unnecessary and extravagant matter , or digresse from the point that hehath in hand . for if the parts of our argument so to be concluded , doe consist of propositions which are principles in law , and be in due and expedient manner framed and combined together , the conclusion , which is the point in question , will follow , either necessarily or probably , according to the truth of the said propositions , for as we haue before shewed , that by reducing a case to a syllogisme , we might finde some of the principall reasons and propositions , whereupon the verity of the said case , being the conclusion , dependeth ; as trying out the cause by the effect : so of the contrary part , to frame the effect by the cause ; the same propositions will , as they confirme one case , so likewise establish all other speciall cases , which shall happen to concurre in equall and like reason , or be reducible to , or vnder , the generallity of the said proposition . and although the lawyer be not tyed to this short course of argument current in schooles , yet in whatsoeuer large discourse of argument , if this forme be respected , though amplified and enlarged with prosyllogismes , after the manner of rhetoritians or oratours , it will yeeld the fruit aforce remembred . there are in our books extant of both , as namely , by conisby , to prooue that a man might grant his lease for yeares without deed , vseth this plaine and expresse syllogisme ; whereof euery proposition being a ground and principle in the law , the conclusion necessarily doth follow . maior ) chose que ico poy prender in lease sans fait poiet passer hors de moy sans fait . minor ) et un lease de terre pur terme d'anus est bon sans fait . conclusio ) ergo per mesme le reason il poit passer hors del lessee , & ceo sans fait . likewise a question grew whether the heire or executor were to haue a furnace fixed vnto the soyle , or such chattells as were annexed to the freehold after the death of the testator , or no ; where the reporter putteth downe the opinion of reede chiefe iustice , fisher , and kingsmill , that the executors should not haue the same vnder the frame of this forme of syllogisme ; whereof euery proposition is a rule of law. maior ) ceux choses que ne poient este forfeit per vtlary in personall action , ne este attache in assise ne distraine per le signor pur rent , tiels choses executours naveront . minor ) mes un furnace ou table fix sur la terre , ou posses , ou un pale , ou un couering de un lict merisme , ou bord annex al franktenant , ou house & fenesters , & auters tiels semblables queux sont annex al franktenement , & sont fait , pur un profit del inheritance , ne poient este forfeit per utlary , ne attache , ne distraine . conclusio ) ex consequenti sequitur que executours naveront tiels choses . as touching the second sort of argument by syllogisme , in the commentaries of plowden the same is very frequent and usuall . and herein to take example out of the first case , because it first commeth to memory , all the said argument of griffith in the case of foggosa , may be reduced into this syllogisme set forth in the entrance thereof . maior ) chascun agreement covient este perfect , plein & compleite . minor ) et le evidence icy ne proue le agreement deste perfect , ne plain , ne compleite , mes plus tost un communication ou parlance que un agreement . the conclusion is suppressed for that it apparently followeth of the premises , vntill the end of the argument ; where at last it is expressed in this manner . conclusio ) et issint le agreement est imperfect a doner action pur le subsedy per que le agreement intend per le statute nest accomply . the maior proposition is amplified with this prosyllogisme . car agreement concernant personall choses , est un mutuall assent des parties , & doit este execute oue un recompence , ou auterment doit este cy certaine & sufficient que doit doner action , ou auter remedy pur recompence , & sil issent nest , donquene sera dit agreement mes plus tost un nude communication . and this proposition he prooueth by the cases thereafter by him alleaged . the minor proposition of the first syllogisme is there enlarged where he further addeth . et issint in nostre case entant que estatute de an . . regis nunc , cap. . &c. vntill the end of the case . the like may be obserued in euery good and effectuall argument ; but we stand not vpon example . a third profit may be considered herein : for manytimes it falleth out , that we perceiue a coherence and likenesse betweene diuers and sundry cases , which therefore wee know are applyable to our purpose ; and yet neuerthelesse , except we draw the unity of reason so found and considered in the said cases , vnto a short sentence , ground , rule , or proposition , wherein they may concurre , and do agree ; we shall be driuen with long circumlocution and many words , to make manifest our meaning in the allegation of the same , especially if the cases do not concurre and agree in one mediate reason or likenesse , but are vpon some conformity further off , to be resembled each to other . as for example . le roy ne poit arrest un home de suspition de treason ou felony , luy mesme , come un subiect poit faire , pur ceo que si il fait tort in ceo feasant , le party issint iniury ne poit auer action envers luy . si home soit in debt a un sur contract sans specialty ; si apres cesty a que le dit est due soit vtlaye in action personall , le roy naver cest dett pur l'utlary a luy forfeit , pur ceo que donque le defendant perderoit le benefit del ley gager que il poit aver in sute de ceo comence vers luy per le creditour . coment que lestatute de w. . cap. . done resceit a cesty in le revercion generalment uncore si le tenant pur vie soit , ou le roy ad le revercion ; & il estant implede fúit default a pres default , le roy ne sera receiue come common person seroit . car , sur le resceit , le demandant doit connter vers cesty que est receiue , mes issent ne poit a scun counter vers le roy , ne luy suer , mes per petition ; et pur ceo , si le roy seroit resceiue le breve , le demandant abateroit maintenant , et pur cest mischiefe , al demandant le roy ne sera resceiue : mes son droit sera sabe per auter meane . these three cases greatly doe differ both in the circumstance of matter , & in the immediate reasons , and yet neuerthelesse haue some resemblance , and a kinde of conformitie and likenesse , betweene them each to other . first they all concerne the king. secondly the king in euery of them is restrained from that power or benefit that his subiect hath . for in the first , he cannot arrest one as his subiect may . in the second he shall lose that debt which his subiect , in whose right hee claimeth it , shoud recouer . in the third he shall not be receiued where the subiect might . and lastly in euery of these cases , if the king should bee admitted to doe as a common person might , the subiect in suite with him should sustaine great preiudice . for in the first he should not be permitted to punish the iniury done to his person . in the second he should lose the benefit of waging his law. and in the third and last haue his action debated without his default . the likenesse of which cases cannot so well bee conceiued without many words , except wee reduce vnto some generall axiome the vnity and resemblance of reason found in them . and therefore this proposition without more might haue sufficed for all . where the subiect by reason of some prerogatiue that is in the king , should otherwise be put to a preiudice ; there the king shall not be allowed that benefit which euery of his subiects by law enjoyeth . in which generall axiome or rule , a generall reason of all the said seuerall cases doth equally concur . by this obseruation wee may reape likewise a fourth commoditie , after this manner . all the reports doe consist of particular cases euery particular case hath his seuerall circumstance . circumstances are singular , and hardly retained in memorie . for , true is that sentence , which bracton hath borrowed out of the ciuill law , omnia habere in memoria , ct in nulio errare , diuinum est potius quam humanum . wherefore when the case is out of memorie , and the circumstances thereof quite forgot , the reason yet remaineth , and is had in memorie . for , memoria intellectiua est vniuersalium , vt est ipsemet intellectus . it is not the case ruled this way , nor that way but the reason which maketh law ; for , non quid sit intelligere sufficiat , sed cursit diligentius inquiratur . so that hee which by obseruation of these grounds and principles , remembreth but the reason ( as he easily may ) shall so sufficiently resolue all doubts of like degree , as if hee had remembred the expresse cases from which the same reason is deduced . although in argument , i confesse not onely the generall reasons , but likewise the speciall cases are as proofes produced and alleadged . lastly , sith the chosen and collected propositions and principles in manner as aforesaid , for our better vse behooueth to be committed to writing ; we may easily without great trouble , by disposing of them orderly , frame a directory , in manner either of a methodicall treause , or of an alphabeticall table , fit and conuement both for the speedie finding of that wee would seeke , and the ready hauing of that we can wish for , surpassing the benefit of any abridgement hereto fore extant . and thus much touching the commodities growing by the consideration and collection of principles , rules , axiomes , grounds , and maximes : and of the scope and end whereunto they tend in managing of our lawes , as well for the behoofe of the student , and for the vse of the practiser . and now remaineth that a few words be said to forewarne both , of certaine abuses ordinarily bred herein . the first abuse is , that neither the ground often times produced doth come neere the reason of the case , in question ; nor the cases alleadged to proue and fortifie that ground , doe directly confirme the same . a fault very vsuall in publique exercises ; and may be redressed if we doe call to minde that any case alleadged ought not to be wrested to proue the rule or ground alleadged ; but the rule , ground , or principle ought to be the very immediate or secondarie reason of the cases whence , it is drawne , and which cases are brought to confirme the same , in such sort that all the cases alleadged doe concurre in equalitie of reason , likenesse , and proportion ; and in full proofe of the principle so produced . and that the ground or principle bee a reason of the question in variance , to subuert or confirme the same . wherein also let this be weighed , that a few principles cannot sufficiently serue to supplie all occasions in that behalfe , but the same must be drawne and deduced of all causes , titles , and matters in the law fit for argument and ves . a second principall ouersight is this . many to proue their opinion in the controuersie proposed , frame their reason rightly from some notable ground , and knowne principle or rule , which though it bee well applyed , yet not regarding the manifold exceptions whereunto the same principle is subiect , they doe set it forth so generall , that it giueth their aduersarie some cause of challenge and cauill thereunto , by obiecting some instance or cases vpon exception of the said rule : and thereby doth not onely seeme to enfeeble the same , in shewing the fallacies thereof ; but sometime in shew , weakeneth the whole reason and argument grounded thereupon . the third abuse of these principles or propositions , is , in the two much frequenting and often needlesse vse of them . for sometimes the obscuritie of the cause , may require some other manner of argument , drawne from places of inuention , which may content and satisfie the minde of the hearers much better . and sometimes the clearenesse of the matter it selfe , needeth not such preparation of proofe and confirmation of those principles and rules . for then is the most and best of them , when that both propositions and cases to confirme the same , haue great coherence with the question ; when both the circumstance of the case in question , and the cause of doubt , doe giue occasion to vse them ; so that which thereby is affirmed , may rightly be reducible to the purpose . finally , it sometimes falleth out to be a fault ouermuch to abound in well doing . omne nimium vertitur in vitium , saith the prouerbe ; for sundry times it happeneth , that it is very conuenient and direct to the matter to make argument vpon a well applyed prnciple , rule or ground , which by men of great learning and reading is sometimes so sufficiently handled , with such abundance and ample furniture of notable and direct cases , that their endeauour herein deserueth high commendations : yet more conuenient were it , that their paines were lesse . for to what purpose behooueth it , to heape case vpon case , as it were one on the necke of another , pelion vpon ossa ? whereas many probable reasons , though confirmed with few good cases , breede greater contentation to the hearer , by reason of the seuerall proofe made thereby then many cases . finis . the vse of the law . provided for preservation of our persons . goods , and good names . according to the practise of the lawes and customes of this land. london . printed for ben : fisher , and are to bee sold at his shop without aldersgate , at the signe of the talbot . . a table of the contents of this ensuing treatise . folio . what the vse of the law principally consisteth in , fol. . surety to keepe the peace , fol. ibid. action of the case , for slaunder , batterie , &c. fol. . appeale of murther giuen to the next of kinne , fol. ibid. manslaughter and when a forfeiture of goods , and when not , fol. . felon . de se , felony by mischance , deodand , fol. ib. cutting out of tongues , and putting out of eyes , made felonie . fol. . the office of the constable , fol. ibid. two high constables for euery hundred , and one pettie constable for euery village , fol. . the kings-bench first instituted , and in what matters they anciently had iurisdiction in , fol. . the court of marshalsey erected , and its iurisdiction within . miles of the chiefe tunnell of the king , which is the full extent of the verge , fol. . sheriffes tourne instituted vpon the division of england into counties , the charge of this court was committed to the earle of the same county , fol. . subdivision of the county court into hundreds , fol. . the charge of the county taken from the earles , and committed yearely to such persons as it pleased the king. fol. ibid. the sheriffe is iudge of all hundred courts not giuen away from the crowne , fol. . county court kept monethly by the sheriffe , fol. ib. the office of the sheriffe , fol. ibid. hundred courts to whom first granted , fol. lord of the hundred to appoint two high constables , fol. ibid. of what matters they enquire of in leets and law dayes , fol. conseruators of the peace and what their office was , fol. conseruators of the peace by vertue of their office , fol. iustices of peace ordayned in lieu of conseruators . power of placing and displacing of iustices of peace by vse deligated from the king to the chancellor , fol. ibid. the power of the iustice of peace to fine the offenders to the crowne , and not to recompence the partie grieued , fol. ibid. authority of the iustices of peace , through whom run all the county seruices to the crown , fol. beating , killing , burning of houses , fol. ibid. attachments for surette of the peace , fol. ibid. recognizance of the peace deliuered by the iustices at their sessons , fol. quarter sessions held by the iust. of peace , fol. the authority of iustices of the peace out of their sessions , fol. iudges of assize come in place of the auncient iudges in eyre , about the time of r. . fol. england diuided into six cicuits , and two learned men in the lawes , assigned by the kings commission to ride twice a yeare through those shires alotted to that circuit , for their try all of priuate titles to lands and goods , and all treasons and felonies , which the county courts meddle not in , fol. ibid. the authority of the iudges in eyre translated by parliament to iustices of assize , fol. the authority of the iustices of assizes much lesned by the court of common pleas , erected in h. . time , fol. ibid. the iustices of assize haue at this day fiue commissions by which they fit , viz. . oyer and ternier , . goale deliuery , . to take assizes , . to take nisi prius , . of the peace , fol. booke allowed to cleargie for the scarcitie of them to be disposed in religious houses , fol. the course the iudges hold in their circuits in the execution of their commission concerning the taking of nisi prius . fol. the iustices of the peace and the sheriffe , are to attend the iudges in their countie , fol. of propertie of lands to be gained by entry , f. land left by the sea belongeth to the king , fo . propertie of lands by discent , fol. three rules of discent , fol. customes of certaine places , fol. euery heyre hauing land is bound by the binding acts of his ancestors , if hee be named , fol. propertie of lands by escheat , fol. in escheat two things are to be obserued , fol. concerning the tenure of lands , fol. ibid. the reseruations in knights seruice tenure , is foure , fol. homage , and fealtie , fol. knight seruice in capite , is a tenure de persona regis , fol. grand seriantic , petty scriantie , fol. ibid. the institution of soccage in capite , and what it is now turned into monyes rents , fol. antient demeasne , what ? fol. ibid. office of alienation , fol. how mannors were at first created , fol. knights seruice tenure reserued to common persons , fol. ibid. soccage tenure reserued by the lord , fol. villenage or tenure by coppie of court roll , fol. court baron , with the vse of it , fol. what attainders shall giue the escheat to the lord , fol. ibid. prayer of clergie , fol. hee that standeth mute forfeiteth no lands , except for treason , fol. ibid. he that killeth himselfe forfeiteth but his chattels fol. flying for felonie , a forfeiture of goods , fol. ibid. lands entayled , escheat to the king for treason , fol. a person attainted may purchase , but it shall be to the kings vse , fol. propertie of lands by conueyance is , first distributed into estates for yeares , for life , intayle and fee-simple , fol. lease for yeares goe to the executors and not to the heyres , fol. ibid. leases , by what meanes they are forfeitable , fol. what liuerie of seizen is , and how it is requisite to euery estate for life , fol. of the new deuise called a perpetuitie , which is an entayle with an addition , fol. the inconueniencies of these perpetuities , fol. the last & greatest estate in land is feesimple , the difference betweene a remainder and a reuertion , fol. what a fine is , fol. what recoueries are , fol. what a vse is , fol. a conueyance to stand ceased to a vse , fol. of the continuance of land by will , fol. propertie in goods , . by guift , . by sale , . by stealing , . by wauing , . by straying , . by shipwrack , . by forfeiture , . by executorship , fol. by letters of administration , fol. where the intestate had bona notabilia in diuers diocesse , then the archb shop of that prouince where hee dyed is to commit administration , fol. an executor may refuse the executorship before the bishop , if hee haue not entermedled with the goods , fol. ibid. an executor ought to pay , . iudgements , . stat. recogn . . debts by bonds and bills sealed , . rent vnpayed , . seruants wages , . head-workmen , . shop-booke , and contracts by word fol. ibid. debts due in equall degree of record , the executor may pay which of them hee please before suite be commenced , fol. but it is otherwise with administrators , fol. propertie by legacie , fol. legacies are to bee payed before debts by shop-bookes , bils vnsealed , or contracts by word , fol. ibid. an executor may pay which legacie he will first . or if the executors doe want they may sell any legacie to pay debts , fol. when a will is made and no executor named , administration is to bee committed cum restamento annexo . fol. ibid. the vse of the law , and wherein it principally consisteth . the vse of the law , consisteth principally in those three things : to secure mens persons from death and violence . to dispose the propertie of goods and lands . for preservation of their good names from shame and infamie . for safetie of persons , the law provideth , that any man standing in feare of another , may take his oath before a iustice of peace , that he standeth in feare of his life , and the iustice shall compell the other to bee bound with suerties to keeps the peace . if any man beate , wound or maime another , or giue false scandalous words that may touch his credit , the law giveth thereupon an action of the case , for the slaunder of his good name ; and an action of batterie , or an appeale of maime , by which recompence shall bee recovered , to the value of the hurt , dammage or danger . if any man kill another with malice , the law giveth an appeale to the wife of the dead , if hee had any , or to the next of kinne that is heire in default of a wife , by which appeale the defendant conuicted is to suffer death , and to loose all his lands and goods ; but if the wife or heire will not sue or bee compounded withall , yet the king is to punish the offence by indictment or presentment of a lawfull inquest and tryall of the offenders before competent iudges ; whereupon being found guiltie , hee is to suffer death , and to loose his lands and goods . if one kill another vpon a suddaine quarrell , this is man slaughter , for which the offender must dye , except hee can reade ; and if hee can reade , yet must he loose his goods , but no lands . and if a man kill another in his owne defence , hee shall not loose his life , not his lands , but he must loose his goods ; except the partie slaine did first assault him , to kill , robbe , or trouble him by the high-way side , or in his owne house , and then he shall loose nothing . and if a man kill him-selfe , all his goods and chattels are forfeited , but no lands . if a man kill another by misfortune , as shooting an arrow at a butt or marke , or casting a stone ouer an house or the like , this is losse of his goods and chattels , but not of his lands , nor life . if a horse , or cart , or a beast , or any other thing doe kill a man , the horse , beast or other thing is forfeited to the crowne , and is called a deodand , and vsually graunted and allowed by the king to the bishop almner , as goods are of those that kill themselues . the cutting out of a mans tongue , or putting out his eyes maliciously , is felonie ; for which the offender is to suffer death , and loose his lands and goods . but , for that all punishment is for examples sake . it is good to see the meanes whereby offenders are drawne to their punishment ; and first for matter of the peace . the auntient lawes of england planted heere by the conquerour , were , that there should bee officers of two sorts in all the parts of this realme to preserue the peace : . constabularij pacis . . conservatores pacis . the office of the constable was , to arest the parties that he had seene breaking the peace , or in furie ready to breake the peace , or was truely informed by others , or by their owne consession , that they had freshly broken the peace ; which persons hee might imprison in the stockes , or in his owne house , as his or their quality required , vntill they had become bounden with sureties to keepe the peace ; which obligation from thenceforth , was to bee sealed and deliuered to the constable to the vse of the king. and that the constable was to send to the kings exchequer or chancery , from whence processe should bee awarded to leauy the debt , if the peace were broken . but the constable could not arrest any , nor make any put in bond vpon complaint of threatning onely ; except they had seene them breaking the peace , or had come freshly after the peace was broken . also , these constables should keepe watch about the towne , for the apprehension of rogues and vagabonds , and night-walkers , and euesdroppers , scouts and such like , and such as goe armed . and they ought likewise , to raise hue and cry against murtherers , manslayers , theeues and rogues . of this office of constable there were high constables , two of euery hundred ; pettie constables one in euery village , they were in auncient time all appointed by the sheriffe of the shiere yearely in his court called the sheriffes tourne , and there they receiued their oath . but at this day they are appointed eyther in the law day of that precinct wherein they serue , by the high constable ; or in the sessions of the peace . the sheriffes tourne is a court very ancient , incident to his office. at the first , it was crected by the conquerour , and called the kings-bench , appointing men studied in the knòwledge of the lawes to execute iustice as substitutes , to him in his name , which men are to bee named , iusticiarij ad placita coram rege assignati . one of them being capitalis iusticiarius called to his fellowes , the rest in number as pleaseth the king , of late but three , insticiarij holden by patent . in this court euery man aboue twelue yeares of age , was to take his oath of allegiance to the king , if hee were bound , then his lord to answere for him . in this court the constables were appointed & sworne ; breakers of the peace punished by fine and imprisonment , the parties beaten or hurt recompenced vpon complaints of damages , all appeales of murther , maime , robberie decided , contempts against the crowne , publique annoyances against the people , treasons and felonies and all other matters of wrong , betwixt partie and partie for lands and goods . but the king seeing the realme grow daily more and more populous , and that this owne court could not dispatch all : did first ordaine that his marshall should keepe a court , for controuersies arising within the virge . which is within xij . miles of the chiefest tunnell of the court , which did but ease the kings bench in matters onely concerning debts , conenants and such like , of those of the kings houshold onely , neuer dealing in breaches of the peace , or concerning the crowne by any other persons , or any pleas of lands . insomuch , as the king for further ease hauing diuided this kingdome into counties , and committing the charge of euery countie to a lord or earle ; did direct , that those earles within their limits should looke to the matter of the peace , and take charge of the constables , and reforme publike annoyances , and sweare the people to the crowne , and take pledges of the freemen for their allegiance , for which purpose the countie did once euery yeare keepe a court , called the sheriffes tourne . at which all the countie ( except women , clergie , children vnder . and not aged aboue . ) did appeare to giue or renew their pledges for allegiance . and the court was called , curio franciplegij , a view of the pledges of free-men ; or , turnus comitatus . at which meeting or court , there fell by occasion of great assemblies much bloudshed , scarcitie of victuals , mutinies and the like mischiefes ; which are incident to the congregations of people , by which the king was moued to allow a subdiuision of euery countie into hundreds , and euery hundred to haue a court , whereunto the people of euery hundred , should bee assembled twice a yeare for surueigh of pledges , and vse of that iustice which was formerly executed in that grand court for the countie ; and the court or earle appointed a bayliffe vnder him to keep the hundred court. but in the end , the kings of this realme found it necessarie to haue all execution of iustice immediately for themselues , by such as were more bound then earles to that seruice , and readily subiect to correction for their negligence or abuse ; and therefore , tooke to themselues the appointing of a sheriffe yearely in euery countie calling , them vicecomit . and to them directed such writs and precepts for executing iustice in the countie , as fell out needfull to haue beene dispatched , committing to the sheriffe custodium comitatus ; by which the earles were spared of their toyles and labours , and that was layd vpon the sheriffes . so as now , the sheriffe doth all the kings businesse in the countie , and that is now called , the sheriffes tourne ; that is to say , hee is iudge of this grand court for the countie , and also of all hundred courts not giuen away from the crowne . hee hath another court , called the countie court , belonging to his office , wherein men may sue monethly for any debt or damages vnder . and may haue writs for to repleuie their cattell distrained and impounded for others , and there try the cause of their distresse ; and by a writ called iusticies , a man may sue for any summe , and in this court the sheriffe by a writ , called an exigent , doth proclaime men sued in courts aboue , to render their bodies , or else they be out-lawed . this sheriffe doth serue the kings writs of processe , bee they sommons , attachments to compell men to answere to the law , and all writs of execution of the law , according to iudgements of superiour courts , for taking of mens goods , lands , or bodies as the cause requireth . the hundred courts , were most of them graunted to religious men , noble men , others of great place . and also many men of good quality haue attained by chance , and some by vsage within mannors of their owne liberty of keeping . law dayes , and to vse their iustice appertaining to a law day . whosoeuer is lord of the hundred court , is two appoint two high constables of the hundred , and also is to appoint in euery village , a pettie constable with a tithingman to attend in his absence , and to bee at his commandement when he is present in all seruices of his office for his assistance . there hath beene by vse and statute law ( besides surueying of the pledges of free-men and giuing the oath of allegiance , and making constables , many addictions of powers and authoritie giuen to the stewards of leets and lawdayes to be put in vre in their courts ; as for example , may punish inne-keepers , bakers , butchers , poulterers , fishmonger , and tradesmen of all sorts , selling with vnder weights or measures or excessiue prizes , or things vnwholsome , or ill made in deceipt of the people . they may punish those that doe stop straiten or annoy the high wayes , or doe not according to the prouision enacted repaire or amend them , or diuert water courses , or destroy frey of fish , or vse engines or nets to take deere , conies , phesants or partridges , or build pigion houses ; except hee bee lord of the mannor , or parson of the church . they may also take presentment vpon oath of the xij sworne iury before them ; but they cannot try the malefactors , onely they must by indenture deliuer ouer those presentments of felonie to the iudges , when they come their circuits into that countie . all those courts before mentioned are in vse , and exercised as law at this day , concerning the sheriffes law dayes and leets , and the offices of high constables , pettie-constables , and tithingmen ; howbeit , with some further addictions by statute lawes , laying charge vpon them for taxation for poore , for souldiers and the like , and dealing without corruption and the like . conservators of the peace were in auntient times certaine , which were assigned by the king to see the peace maintained , and they were called to the office by the the kings writs , to continue for terme of theyr liues , or at the kings pleasure . for this service , choise was made of the best men of calling in the countie , and but few in the shire . they might bind any man to keepe the peace and to good behauiour , by recognizance to the king with suerties , and they might by warrant send for the partie , directing their warrant to the sheriffe or constable , as they please , to arest the partie and bring him before them . this they vsed to doe , when complaint was made by any , that hee stood in feare of another , and so tooke his oath ; or else , where the conseruator himselfe did without oath or complaint , see the disposition of any man inclined to quarrell and breach of the peace , or to misbehaue himselfe in some out-ragious manner of force or fraud . there by his owne discretion hee might send for such a fellow , and make him find suerties of the peace or of his good behauiour , as hee should see cause ; or else cōmit him to the goale if hee refused . the iudges of eyther bench in westminster , barons of the exchequer , master of the rolles , and iustices in eire and affizes in their circuits , were all without writ conseruators of the peace in all shires of england , and continue to this day . but now at this day , conseruators of the peace are out of vse ; and in lieu of them , there are ordained iustices of peace , assigned by the kings cōmissions in euery countie , which are moueable at the kings pleasure ; but the power , of placing & displacing iustices of the peace , is by vse deligated from the king to the chancellor . that there should be iustices of peace by commissions , it was first enacted by a statute made . ed. . and their authoritie augmented by many statutes made since in euery kings raigne . they are appointed to keepe foure sessions euery yeare ; that is , euery quarter , one . these sessions are a sitting of the iustices to dispach the affaires of their commissions . they haue power to heare and determine in their sessions , all felonies , breaches of the peace , contempts and trespasses , so farre as to fine the offender to the crowne , but not to award recompence to the partie grieued . they are to suppresse ryots , and tumults , to restore possessions forcibly taken away , to examine all felons apprehended and brought before them ; to see impotent poore people , or maimed souldiers prouided for , according to the lawes . and rogues , vagabonds , and beggers punished . they are both to licence and suppresse alehouses , badgers of corne and victuals , and to punish fore-stallers , regrators , and engrossers . through these in effect runne all the countie seruices to the crowne , as taxations of subsidies , mustring men , arming them , and leauying forces , that is done by a speciall commission or preceps from the king. any of these iustices by oath taken by a man that hee standeth in feare that another man wil beat him , or kill him , or burne his house , are to send for the partie by warrant of attachment directed to the sheriffe or constable , and then to bind the partie with suerties by recognizance to the king , to keepe the peace , and also to appeare at the next sessions of the peace ; at which next sessions , when euery iustice of peace hath therein deliuered all their recognizances so taken , then the parties are called and the cause of binding to the peace examined , and both parties beeing heard , the whole bench is to determine as they see cause , either to continue the partie so bound , or else to discharge him . the iustices of peace in their sessions are attended by the constables & bayliffes , of all hundreds and liberties within the countie , or by the sheriffe or his deputy , to bee employed as occasion shall serue in executing the precepts and directions of the court. they proceed in this sort , the sheriffe doth sommon . free-holders discreet men of the said county , whereof some . are selected and sworne , and haue their charge to serue as the grand iury ; the partie indicted is to trauerse the indictment or else to confesse it , and so submit himselfe to bee fined as the court shall thinke meet ( regard had to the offence ) except the punishment be certainely appointed ( as often it is ) by speciall statutes . the iustices of peace are many in euerie countie , and to them are brought all traitors felons and other malefactors of any sort vpon their first apprehension , and that iustice to whom they are brought , examineth them , & heareth their accusations , but iudgeth not vpon it ; onely if heo find the suspition but light , then hee taketh bond with sureties of the accused , to appeare either at the next assizes , if it be a matter of treason or felonie ; or else at the quarter sessions , if it bee concerning ryot or mis-behauior or some other small offence . and hee also bindeth to appeare then those that giue testimonie and prosecute the accusation , all the accusers and witnesses , and so setteth the partie at large . and at the assizes or sessions ( as the case falleth out ) hee certifieth the recognizances taken of the accused , accusers , and witnesses ; who being there are called , and appearing , the cause of the accused is dept into according to law for his clearing . but if the partie accused , seeme vpon pregnant matter in the accusation and to the iustice to bee guilty , and the offence heinous , or the offender taken with the manner , then the iustice is to commit the partie by his warrant called a mittimus to the goaler of the common goale of the countie , there to remaine vntill the assizes . and then the iustice is to certifie his accusation , examination , and recognizance taken for the appearances and prosecution of the witnesses , so as the iudges may when they come readily proceed with him as the law requireth . the iudges of the assizes as they bee now become into the place of the antient iustices in eyre . the prime kings after the conquest vntill h. . time especially ; and after the lesser men euen to r. . time , did execute the iustice of the realine ; they began in this sort . the king not able to dispatch busines in his own person , erected the court of kings bench , that not able to receiue al , nor meet to draw the people all to one place , there were ordained counties , and the sheriffes tornes , hundred courts , and particular leets , and law-dayes , as before mentioned , which dealt onely with crowne matters for the publique ; but not the priuate titles of lands or goods , nor the tryall of grand offences of treasons and felonies , but all the counties of the realme were diuided into six circuits . and two learned men well read in the lawes of the realme , were assigned by the kings commission to euery circuit , and to ride twice a yeare through those shires allotted to that circuit , making proclamation before hand , a conuenient time in euery countie , of the time of their comming , and place of their sitting , to the end the people might attend them in euery countie of that circuit . they were to stay . or . dayes in euery countie , and in that time all the causes of that countie were brought before them by the parties grieued , and all the prisoners of the said goale in euery shire , and whatsoeuer controuersies arising concerning life , lands or goods . the authoritie of these iudges in eyre , is translated by act of parliament to iustices of assize ; which bee now , the iudges of circuits , and they doe vse the same course that iustices in eyre , did to proclaime their comming euery halfe yeare , and the place of their sitting . the businesse of the iustices in eyre , and of the iustices of assize at this day is much lessened , for that in h. . time there was erected the court of common-pleas at westininster , in which court haue beene euer since and yet are begun and handled , the great suits of lands , debts , benefices and contracts , fines for assurance of lands and recoueries , which were wont to bee either in the kings bench , or else before the iustices in eyre . but the statute of mag. char. cap. . is negatiue against it . viz communia placita non sequantur , curiam nostram sed sequantur in aliquo loco certo ; which locus certus must be the common pleas , yet the iudges of circuits haue . commissions by which they sit . the first is , a commission of oyer and termnier directed vnto them , and many others of the best accompt , in their circuit ; but in this commission the iudges of assize are of the quorum , so as without them there can be no proceeding . this commission giueth them power to deale with treasons , murtherers , and all manner of felonies and misddemeanours whatsoeuer ; and this is the largest commission that they haue . the second is a commission of goale deliuery ; that is , onely to the iudges themselues , and the clearke of the assize assotiate , and by this commission they are to deale with euery prisioner in the goale , for what offence soeuer hee bee there . and to proceed with him according to the lawes of the realme , and the quality of their offence ; and they cannot by this comission doe any thing concerning any man , but those that are prisoners in the goale . the course now in vse of execution of this commission of goale deliuery , is this . there is no prisoner but is committed by some iustice of peace , who before he committed took his examination , and bound his accusers and witnesses to appeare and prosecute at the goale deliuery . this iustice doth certifie these examinations and bonds , and therevpon the accuser is called solemnely into the court ; and when he appeareth hec is willed to prepare a bill of indictment against the prisoner , and goe with it to the grand-iury , and giue euidence vpon their oathes he and the witnesses , which he doth ; and then the grand iury write thereupon either billa vera , and then the prisoner standeth indicted , or else ignoramus , then he is not touched . the grand iury deliuer these bils to the iudges in their court , and so many as they find indorsed billa vera , they send for those prisoners , then is euery mans indictment put and read to him , and they aske him whether he be guilty or not ; if he say not guilty , then he is asked how he will be tryed , he answereth , by the countrey . then the sheriffe is commanded to return the names of . freeholders to the court , which freeholders be sworne to make true deliuery betweene the king and the prisoner , and then the indictment is againe read and the witnesses sworne , and speake their knowledge concerning the fact , and the prisoner is heard at large , what defence he can make , and then the iury goe together and consult . and after a while they come in with a verdict of guilty or not guiltie , which verdict the iudges doe record accordingly . if any prisoner plead not guilty vpon the indictment and yet will not put himselfe to tryall vpon the iury , ( or stand mure ) he shall be pressed . the iudges when many prisoners are in the goale doe in the end before they goe , peruse euery one . those that were indicted by grand iury , and found not guiltie by the select iury , they judge to be quitted , & so deliuer them out of the goale . those that are found guilty by both iuries they iudge to death and command the sheriffe to see execution done . to those that refuse tryall by the countrie , or stand mute vpon the ind ctment , they iudge to be pressed to death , some whose offences are pilfring vnder twelue pence value , they judge to be whipped . those that confesse their ind ctments , they iudge to death , whipping or otherwise , as their offence requireth . and those that are not indicted at all , but their bill of inditement returned with ignoramus by the grand lury and all other in the goale , against whom no bils at all are , they doe acquit by proclamation out of the goale ; that one way or other they ridde the goale of all the prisoners in it , but because some prisoners haue their bookes and burned in the hand and so deliuered , it is necessary to shew the reason thereof . this hauing their bookes is called their clergie , with in antient time began thus . for the scarcity of the clergie in the realme of england to be disposed in religious houses , or for preists , deacons and clerkes of parishes , there was a prreogatiue allowed to the clergie , that if any man that could reade or were a clerke , were condemned to death , the bishop of the diocesse , might if he would clayme him as a clerke , and he was to see him tryed in the face of the court. whether he could read or not the booke was prepared and brought by the bishop , and the iudge was to turne to some place as he should thinke meete , and if the prisoner could reade them then the bishop was to haue him deliuered ouer vnto him to dispose of in some places of the clergie , as hee should thinke meete . but if either the bishop would not demand him : or that the prisoner could not read , then was hee to bee put to death . and this clergie was allowable in the ancient times and law , for all offences whatsoeuer they were except treason and robbing of churches of their goods and ornaments . but by many statutes made since , the clergie is taken away for murther , burglarie , robberie , purse-cutting , and diuers other felonies particularized by the statutes to the iudges , and lastly ; by a statute made . elizabeth : the iudges themselues are appointed to allow clergie to such as can read , being not such offenders from whom clergie is taken away by any statute . and to see them burned in the hand , and so discharge them without deliuering them to the bishop , howbeit the bishop appointeth the deputie to attend the iudges with a booke to trie whether they would reade or not . the . comission , that the iudges of circuits haue , is , a cōmission directed to themselues onely to take assizes by which they are called iustices of assize , and the office of those iustices is to doe tight vppon writs called assizes , brought before them by such as are wrongfully thrust out of their lands . of which number of writs there was farre greater store brought before them in antient times then now it is , for that mens seizons and possessions are sooner recouered by sealing leases vpon the ground , and by bringing an eiectione firme , and trying their tytle so , then by the long suites of assizes . the . cōmission , is cōmission to take nisi prius directed to none but to the iudges themselues and their clerkes of assizes , by which they are called iustices of nisi prius . these nisi prius happen in this sort , when a suit is begun for any matter in one of the three courts , the kings bench , common pleas , or the exchequer here aboue , and the parties in their pleadings doe varie in a point of fact ; as for example , if an action of debt or trespasse growne for taking away goods , the defendant denieth that hee tooke them , or in an action of the case for slaunderous words , the defendant denieth that he spake them . then the plaintiffe is to maintaine and proue them , that the obligation is the defendants deed , that hee either tooke the goods , or spake the words , the law saith , that issue is joyned betwixt them , which issue of the fact is to bee tried by a iurie of twelue men of the countie , where it is supposed by the plaintiffe the prises to bee done , and for that purpose the iudges of the court doe award a writ of venire fac : in the kings name to the sheriffe of that countie , commanding him to cause foure and twentie discreet free-holders of his countie at a certaine day to try this issue joynt , out of which foure and twentie onely twelue are chosen to serue , and that double number is returned , because some may make default , and some bee challenged vpon kindred , alliance , or partiall dealing . these foure and twentie , the sheriffe doth name and certifie to the court , and withall that hee hath warned them to come at the day according to their writ . but because at his first summons there falleth no punishment vpon the foure and twentie if they come not , they very seldome or neuer appeare vpon the first writ , and vpon their default there is another writ * returned to the sheriffe , commaunding him to distraine them by their lands to appeare at a certaine day appointed by the writ , which is the next day after the nisi prius iusticiarij nostri ad assizas capiendas venerint , &c. of which words the writ is called a nisi prius , and the iudges of the circuit of that countie in that varatis and meane time before the day of appearance appointed for the iurie aboue , haue their commission of nisi prius , authority to take the appearance of the iury of the county before them , and there to heare the witnesses and proofes on both sides concerning this issue of fact , and to take the verdict of the iury , and against the day they should haue appeared aboue , which to returne the verdict read in the court aboue , returne is called postea . and vpon this verdict clearing the matter in fact , one way or other , the iudges aboue giue judgement for the partie for whom the verdict is found , and for such damages and costs as the iury doth assesse . by those tryals called nisi prius , the iuries and the parties are eased much of the charge they should bee put to , by comming to london with their euidences and witnesses , and the courts of westminster are eased of much trouble they should haue , if all the iuries for tryals should appeare and try their causes in those courts ; for those courts haue little leisure . now though the iuries come not vp , yet in matters of great weight or where the tytle is intricate or difficult , the iudges aboue vpon information to them doe retaine those causes to be tryed there , and the iuries doe at this day in such causes come to the barre at westminster . the fift commission that the iudges in their circuits doe sit by , is the commission of the peace in euery countie of their circuit . and all the iustices of the peace hauing no lawfull impediment , are bound to bee present at the assizes to attend the iudges as occasion shall fall out , if any make default the iudges may set a fine vpon him at their pleasure and discretions . also the sheriffe in euery shire through the circuit , is to attend in person the iudges all that time they bee within the countie , and the iudges may fine him if hee faile for negligence or misbehauiour in his office before them ; and the iudges aboue may also fine the sheriffe for not returning sufficiently writs before them . propertie in lands is gotten and transferred by one to another , those foure manner of wayes . by entry . by discent . by escheat . most vsually by conueyance . propertie by entry is , where a man findeth a piece of land that no other possesseth or hath tytle vnto , and hee that findeth it doth enter , this entry gaineth a propertie ; this law seemeth to bee deriued from this text , terradedit filijs hominum , which is to bee vnderstood , to those that will till and manure it , and so make it yeeld fruit ; and that is hee that entreth into it , where no man had it before . but this manner of gaining lands was in the first dayes and is not now of vse in england , for that by the conquest all the land of this nation was in the conquerours hands , and appropriated vnto him ; except , religious and church-lands , and the lands in kent , which by composition were left to the former owners , as the conquerour found them , so that no man but the bishopricks , churches , and the men of kent , can at this day make any greater title then from the conquest to his lands in england , and lands possessed without any such title are in the crowne and not in him that first entreth ; as it is by land left by the sea , this land belongeth to the king and not to him that hath the lands next adioyning which was the auncient sea bankes , this is to bee vnderstood of the inheritance of lands : viz. that the inheritance cannot bee gained by the first entry . but an estate of franckiut . for an other mans life by our lawes , may at this day be gotten by entrie . as a man called a. hauing land conueyed vnto him for the life of b. dyeth without making any estate of it , there whosoeuer first entreth into the land , after the decease of a. getteth the propertie in the land for time of continuance of the estate which was granted to a. for the life of b. which b. yet liueth , and therefore the said law cannot reuert to him . and to the heire of a. it cannot goe , for that it is not any state of inheritance but onely an estate for another mans life ; which is not deseendable to the heire , except he be specially named in the grant : viz. to him and his heires . as for the exccutors of a. they cannot haue it , for it s not an estate testamentory that should goe to the executors as goods and chatrels should , so as in truth , no man can intitle himselfe vnto those lands ; and therefore , the law preferreth him that first entreth , and he is called occupans and shall hold it during the life of b. but must pay the rent , performe the conditions , and doe no wast . and he may by deed assigne it to whom he please in his life time . but if he die , before he assigne it ouer , then it shall goe againe to him whomsoeuer entreth . and so all the life of b. so often as it shall happen . propertie of lands by discent is , where a man hath lands of inheritance and dyeth not disposing of them , but leauing it to goe as the law casteth it vpon the heire . this is called discent of land , and vpon whom the discent is to light , is the question . for which purpose the law of inheritance preferreth the first child before all others , and amongst children the male before the female , and amongst males the first borne . if there bee no children then the brother , if no brothers , then sisters , if neyther brothers nor sisters , then vnckles , and for lacke of vncles , ants , if none of them , then couzens in the necrest degree of consanguinity , with these three rules of diuersities . . that the eldest male shall safely inherit ; but if it come to females , then they being all in an equall degree of neerenes shall inherit altogether and are called parceners , and all they make but one heire to the ancestor . . that no brother nor sister of the halfe blood shall inherit to his brother or sister , but as a child to his parents , as for example . if a man haue two wiues , and by either wife a sonne , the eldest sonne ouerliuing his father is to be preferred to the inheritance of the father being fee-simple ; but if he entreth and dyeth without a child , the brother shall not be his heire , because he is of the halfe bloud to him , but the vnckle of the eldest brother or sister of the whole bloud , yet if the eldest brother had dyed in the life of the father , then the youngest brother should inherit the land that the father had , although it were a child by the second wife , before any daughter by the first . the third rule about discents . that land purchased by the partie himselfe that dyeth , is to be inherited ; first , by the heires of the fathers side , then if he haue none of that part by the heires of the mothers side . but land descended to him from his father or mother , are to go to that side only from which they came , and not to the other side . those rules of discent mentioned before are to bee vnderstood of fee simples and not of entailed lands , and those rules are to bee restrained by some particular customes of some particular places : as namely , the custome of kent , that euery male of equall degree of childhood , brotherhood or kindred , shall inherit equally , as daughters shall being parceners , and in many burrough townes of england , the custome alloweth the youngest sonne to inherit , and so the youngest daughter . the custome of kent is called ganel kind . the custome of boroughes burgh english . and there is another note to bee obserued in fee-simple inheritance , and that is , that euerie heire hauing land or inheritance , be it by common law or by custome is chargeable , so farre forth as the value thereof extendeth with the binding acts of the ancestors from whom the inheritance descendeth ; and these acts are colaterall encombrances , and the reason of this charge is , qui sentit commodum sentire debet incommodum siue onus . as for example , if a man bind himselfe and his heires in an obligation or doe couenant by writing for him and his heires , or doe grant an anuity for him & his heires , which warrantie in all these cases , the law chargeth the heire after the death of the auncestor with this obligation ; couenant , annuitie , warrantie , yet with these three cautions . . that the partie must by speciall name bind himselfe and his heires , or couenant , grant , and warrant for himselfe and his heires ; otherwise , the heire is not to bee touched . secondly , that some action must be brought against the heire , whilst the land or other inheritance resteth in him vnaliened away ; for if the ancestor dye , and the heire before an action be brought against him , vpon those bonds , couenants , or warranties , doe alien away the land , then the heire is cleane discharged of the burthen , except the land was by fraud conueyed away of purpose , to preuent the suite intended against him . thirdly , that no heire is further to bee charged , then the value of the land descended vnto him , for the same ancestor that made the instrument of charge , and that land also not to bee sold outright , but to bee kept in extent and at a yearely value vntill the debt or damage be runne out , neuerthelesse , if an heire that is sure vpon such a debt of his ancestor , doe not deale clearely with the court , when he is sued ; that is , if hee come not immediately by way of confession and set downe the true quantitie of his inheritance descended , and so submit himselfe ; therefore , as the law requireth . then that heire that otherwise demeaneth himselfe , shal be charged of his his owne other lands and goods , and of money for this deed of his ancestor . as for example . if a man bind himselfe and his heires in an obligation , and dyeth leauing but . acres of land to his heire , if his heire be sued vpon the bond , & commeth in , and denieth that he hath any by discent , and it is found against him by the verdict that he hath . acres , this heire shall bee now charges by his false plea of his owne lands goods and bodie to pay the l. although the . acres be not worth l. propertie of lands by escheat , is where the owder dyeth , seizeth of the lands in possession without child or other heire thereby the land for lacke of other heire , is said to escheat to the lord of whom it is holden . this lacke of heire happeneth principally in two cases . . where the lands owner is a bastard . . where he is attainted of felonic or treason , neither can a bastard haue any heire except it be his owne child nor a man attainted of treason , although it be his owne child . vpon attainder of treason the king is to haue the land although hee be not the lord of whom it is held , because it is a royall escheat . but for felonie it is not so , for there the king is not to haue the escheat , except the land be holden of him . and yet where the land is not holden of him the king is to haue the land for a yeare and a day next ensuing the judgment of the attainder , with a libertie to commit all manner of wast all that yeare in houses , gardens , ponds , lands and woods . in these escheats , two things are especially to be obserued ; the one is , the tenure of the lands , because it directeth the person to whom the escheat belongeth : viz. the lord of the mannor of whom the land is holden . . the manner of such attainder which draweth with it the escheat , concerning the tenures of lands , it is to bee vnderstood , that all lands are holden of the crowne either mediately or immediately , and that the escheat appertaineth to the immediate lord , and not to the mediate . the reason why all land is holden of the crowne immediatly or by mesne lords is this . the conqueror got by right of conquest all the land of the realme into his owne hands in demeasne , taking from euery man all estate , tenure , propertie and libertie of the same , ( except religious and church lands , and the land in kent ) and still as hee gaue any of it out of his owne hand , he reserued some retribution of rents or seruices or both , to him and to his heires ; which reseruation , is that , which is called the tenure of land. in which reseruation , he had foure institutions , exceeding politique , and sutable to the state of a conqueror . seeing his people to be part normans , and part saxons , the normans he brought with him , the saxons hee found heere : hee bent himselfe to inioyne them by marriages in amitie , and for that purpose ordaines , that if those of his noble knights and gentlemen , to whom hee gaue great rewards of lands should dye , leauing their heire within age , a male within . and a femalle within . yeares , and vnmarried , then the king should haue the bestowing of such heires in marriage in such family , and to such persons as hee should thinke meet , which interest of marriage went still imployed , and doth at this day in euery tenure called knights seruice . the second was to the end , that his people should still bee conserued in warlike exercises and able for his defence ; when therefore , he gaue any good portion of lands , that might make the partie of abilitie or strength , hee with all reserued this seruice . that that partie and his heire hauing such lands , should keepe a horse of seruice continually , & serue vpon him himselfe when the king went to wars , or else hauing impediment , to excuse his owne person , should find an other to serue in his place ; which seruice of horse and man , is a part of that seruice called knights seruice at this day . but if the tenant himselfe be an infant , the king is to hold this land himselfe vntill hee come to full age , finding him meat , drinke , apparell , and other necessaries , and finding a horse and a man , with the ouerplus to serue in the warres , as the tenant himselfe should doe if he were at full age . but if this inheritance descend vpon a woman , that cannot serue by her sex , then the king is not to haue the lands , she being of . yeares of age , because shee is then able to haue an husband , that may do the seruice in person . the third institution that vpon euery guilt of land the king reserued a vow and an oath to bind the partie to his faith and loyaltie , that vow was called homage , the oath fcaltie ; homage , is to be done kneeling holding his hands betweene the knees of the lord , saying in the french tongue ; i become your man of life and lands , and earthly honour . fealtie , is to take an oath vpon a booke , that hee will be a faithfull tenant to the king and doe his seruice , and pay his rents according to his tenure . the . institution , was for recognizon of the kings bounty by euery heire succeding his ancestor in those kts. seruice lands , the king should haue primer seissin of the lands , which is one yeares profit of the lands , and vntill this bee paid the king is to haue possession of the land , & then to restore it to the heire which continueth at this day in vle , and is the very cause of suing liuerie , and that as well where the heire hath bin in ward or otherwise . these before mentioned by the rights of tenure , are called knights seruice in capite , which is as much to say , as tenure de per sona regis & caput , being called the chiefest part of the person , it is called a tenure in capite , or in chiefe . and it s also to be noted , that as this tenure by capite in knights seruice generally was a great safetie to the crowne , so also the conquerour instituted other tenures in capite necessary to his estate ; as namely , he gaue diuers lands to be holden of him by some speciall seruice about his person , or by hauing some speciall office in his house , or in the field , which haue knights seruice and more in them , and these hee called . tenures by grand sarjantie . also hee provided vpon the first guift of lands , to haue reuenues by continuall seruice of ploughing his land , repairing his houses , parkes pales , castles and the like . and sometimes to a yearely prouision of gloues , spurres , hawkes , horses , and hounds and the like ; which kind of reseruations are called also tenures in chiefe or in capite of the king , but they are not by knights seruice . but such things as the tenants may hire another to doe or prouide for his money . and this tenure is called a tenure by soccage in capite , the word soccagium signifying the plough , howbeit in this later time , the seruice of ploughing the land is turned into money rent , and so of haruest workes , for that the kings doe not keep their demeasne in their owne hands as they were wont to doe , yet what lands were de antiquo dominico corona , it well appeareth in the records of the exchequer called the book of dommesday . and the tenants by auntient demeasne , haue many innuities and priuiledges at this day , that in auntient times were granted vnto those tenants by the crowne , the particulars whereof are too long to set downe . these tenures in capite , as well as that by soccage , as the others by knights seruice haue this propertie ; that the antient tenants cannot alien their lands without licence of the king , if hee doe , the king is to haue a fine for the contempt , and may seize the land , and retaine it vntill the fine bee paid . and the reason is , because the king would haue a libertie in the choyce of his tenant , so that no man should presume to enter into those lands and hold them ( for which the king was to haue those special seruices done him ) without the kings leaue ; this licence and fine as it is now disgested is easie and of course . there is an office called the office of alienation , whereby any man may haue alicence at a reasonable rate , it is at the third part of one yeares value of the land moderately rated . a tenant in capite by knights seruice or grand seriantie , was restrained by antient statute , that he should not giue nor alien away more of his lands , then that with the rest hee might bee able to doe the seruice due to the king , and this is now out of vse . and to this tenure by knights seruice in chiefe , was incident that the king should haue a certaine summe of money , called aid ; due to bee ratably leauied among if all those tenants proportionably to his lands , to make his eldest sonne a knight ; or to marry his eldest daughter . and it is to bee noted , that all those that hold lands by the tenure of soccage in capite ( although not by knights seruice ) cannot alien without licence , and they are to sue liuery , and pay primer seisin , and not to be in ward for bodie or land. by example and resemblance of the kings policie in these institutions of tenures ; the great men and gentlemen of this realme did the like so neere as they could ; as for example , when the king had giuen to any of them two thousand acres of land , this partie purposing in this place to make his dwelling ( or as the old word is ) his mansion house ; or his mannor house , did deuise how he might make his land a compleat habitation to supply him with all manner of necessaries , and for that purpose , hee would giue of the outtermost parts of two thousand acres , . or . acres or more or lesse , as he should thinke meet : to one of his most trustie seruants with some reseruation of rent to find a horse for the warres , and goe with him when he went with the king to the warres , adding vowe of homage , and the oath of fealtie , wardship , marriage , and reliefe . this reliefe is to pay fiue pound for euery knights fee , or after the rate for more or lesse at the entrance of euerie heire , which tenant so created and placed , was and is to this day called a tenant by knights seruice , and not by his owne person , but of his mannors ; of these hee might make as many as hee would . then this lord would prouide that the land which hee was to keepe for his owne vse , should bee ploughed , and his haruest brought home , his house repayred , his parke pailed and the like , and for that end would giue some lesser parcels to sundry others , of twentie , thirtie , fortie or fiftie acres ; reseruing the seruice of ploughing a certaine quantitie or so many clayes of his land , and certaine haruest workes or dayes in the haruest to labour or to repaire the house , parke , pale , or otherwise , or to giue him for his prouision , capons , hens , pepper , commin , roses , gillyflowers ; spurres , gloues , or the like ; or to pay him a certeine rent , and to bee sworne to be his faithfull tenant , which tenure was called a soccage tenure , and is so to this day , howbeit most of the ploughing and haruest seruices , are turned into mony rents . the tennants in soccage at the death of euery tennant were to pay reliefe , which was not as knights seruice , as fiue pound a knights fee. but it was , and so is still , one yeares rent of the land ; and no wardship or other profit to the lord. the remainder of the two thousand acres hee kept to himselfe , which hee vsed to manure by his bondmen , and appointed them at the courts of his mannor how they should hold it , making an entrie of it into the roll of the remembrances of the acts of the court , yet still in the lords power to take it away : and therefore they were called tennants at will , by coppie of court roll ; being in truth , bondmen at the beginning , but hauing obtained freedome of their persons , and gained a custome by vse of occupying their lands , they now are called coppie-holders , and are so priuiledged , that the lord cannot put them out , and all through custome . some coppie-holders are for lifes , one , two , or three successiuely ; and some inheritances from heire to heire by custome , and custome ruleth these estates wholly , both for widdowes estates , fines , harriots , forseitures , and allother things . mannors being in this sort made at the first , that the lord of the mannor should hold a court which is no more then to assemble his tenants together , at a time by him to be appointed ; in which court , he was to be informed by oath of his tenants , of of all such duties , rents , releases , wardships , copie-holds or the like , that had hapned vnto him ; which is called a court baron , and herein a tennant may sue for any debt or trespasse vnder l l value , and the freeholders are to iudge of the cause vpon proofe prosecuted vpon both sides . and therefore the free holders of these mannors , as incident to their tenures do hold by suit of court which is to come to the court , and there to iudge betweene partie and partie in those pettie actions . and also to enforme the lords of the duties of rents and seruices vnpaid to him from his tennants . by this course it is discerned who be the lords of lands , such as if the tennants dye without heire , or bee attainted of felonie or treason , shall haue the land by escheat . now concerning what attainders shall giue the escheat to the land is to bee noted , that it must eyther bee by iudgement of death giuen in some court of record against the felon found guiltie by verdict , or confession of the felonie , or it must bee by out-lawrie of him . the out-inwrie groweth in this sort , a man is indicted for felonie , being not in hold , so as hee cannot bee brought in person to appeare and to bee tryed , insomuch that processe of capias is therefore awarded to the sheriffe , who not finding him returneth non est inventus in balliva mea ; and therefore , another capias is awarded to the sheriffe , who likewise not finding him maketh the same returne , then a writ called an exigent is directed to the sheriffe , commaunding him to proclaime him in his countie court fiue seuerall court dayes to yeeld his body , which if the sheriffe doe , and the partie yeeld not his body , hee is sayd by the default to bee outlawed , the coroners there adjudging him out-lawed , and the sheriffe making the returne of the proclamations and of the judgement of the coroners , vpon the backside of the writ . this is an attainder of felonie , whereupon the offender doth forfeit his lands by an escheat to the lord of whom they are holden . but note that a man found guilty of felonie by verdict or confession , and praying his cleargie , preuenteth the judgement of death , and is called a clerke conuict , who looseth not his lands , but all his goods , chattels , leases and debts . so a man that will not answer nor put himselfe vpon tryall , although hee be by this to haue iudgement of pressing to death , yet hee doth forfeit no lands , but goods , chattels , leases and debts , except his offence bee treason , and then hee forfeiteth his lands to the crowne . so a man that killeth him-selfe shall not loose his lands , but his goods , chattels , leases and debts . so of those that kill others in their owne defence , or by misfortune . a man that beeing pursued for felonie , and flyeth for it , looseth his goods for his flying , although hee returne and is tryed , and found not guiltie of the fact. so a man indicted for felonie , if hee yeeld not his body to the sheriffe vntill after the exigent of proclamation is awarded vnto him , this man doth forfeit all his goods , for his long stay , although hee be found not guiltie of the felonie , but is not attainted to loose his lands , but onely such as haue iudgements of death by tryall vpon verdict of their owne confession , or that they be by iudgement of the coroners out-lawed as before . besides the escheats of lands to the lords of whom they be holden for lack of heires , and by attainder for felony ( which onely doe hold place in fee-simple lands ) there are also forfeiture of lands to the crowne by attainder of treason ; as namely , if one that hath entailed lands commit treason , hee forfeiteth the profits of the lands for his life to the crowne , but not to the lord. and if a man hauing an estate for life of himselfe or of another , commit treason or felonie , the whole estate is forfeited , but no escheat to the lord. but a coppie-hold , for fee simple or for life , is forfeited to the lord and not to the crowne ; and if it bee entailed , the lord is to haue it during the life of the offender , and than his heire is to haue it . the customes of kent is , that gauil-kind land is not forfeitable nor escheatable for felonie , for they haue an old saying ; the father to the bough , and the sonne to the plough . if the husband was attained , the wife was to loose her thirds in cases of felonie and treason , but yet she is not offender , but at this day it is holden by statute law that shee looseth them not , for the husbands felony . the relation of these forfeits are these . . that men attainted of felonie or treason by verdict or confession , doe forfeit all the lands they had at the time of their offence committed , and the king or the lord whosoeuer of them had the escheat or forfeiture , shall come in and auoid all leafes , acts , statutes , conueyances done by the offender , any time since the offence done . and so is the law cleare also if a man be attainted for treason by outlawry , but vpon attainder of felonie by outlawry , since it hath beene much doubted by the law-bookes , whether the lords title by escheat shall relate backe to the time of the offence done , or onely to the date or lefte of the writ of exigent for proclamation , therevpon he is outlawed ; howbeit at this day it is ruled that it shall reach backe to the time of his fact , but for goods , and chattels , and debts , the kings title shall looke no further backe then those goods , the partie attainted by verdict or confession , had at the time of the verdict and confession giuen or made . and in outlawries at the time of the exigent as well in treasons as felonies , wherein it is to bee obsaerued that vpon the parties first apprehension , the kings officers are to seize all the goods and chattels and preserue them together , dispending onely so much out of them as it is fit for the sustentation of the person in prison , without any wasting , or disposing them vntill conuiction , and then the propertie of them is in the crowne , and not before . it is also to bee noted , that persons attainted of felonie or treason , haue no capacitie in them , to take , obtaine or purchase , saue onely to thevse of the king , vntill the partie be pardoned . yet the partie giueth not backe their lands or goods without a speciall pattent of restitution , which cannot restore the bloud without an act of parliament . so if a man haue a sonne , and then is attainted of felonie or treason , and pardoned , and purchaseth lands , and then hath issue an other sonne and dyeth ; the sonne hee had before he had his pardon , although hee be his eldest sonne , and the pattent haue the words of restitution to his lands shall not inherit , but his second sonne shall inherit them . and not the first ; because , the bloud is corrupted by the attainder , and cannot be restored by pattent alone , but by act of parliament . and if a man haue two sons and the eldest is attainted in the life of his father , and dyeth without issue , the father liuing , the second sonne shall inherit the fathers lands , but if the eldest sonne , haue any issue , though he die in the life of his father , then neither the second son , nor the issue of the eldest , shall inherit the fathers lands , but the father shall there be accompted to dye without heire , and the land shall escheat whether the eldest sonne haue issue or not , afterward or before , though he be pardoned after the death of his father . propertie of lands by conueyance is , first distributed into estates , for yeares , for life , in tayle , and fee-simple . for estates for yeares , which are commonly called leases for yeares , they are thus made ; where the owner of the land agreeth with the other by word of mouth , that the other shall haue , hold , and enioy the land , to take the profits thereof for a time certaine of yeares , moneths , weekes and dayes , agreed between them ; and this is called a lease paroll ; such a lease may be made by writing pole or indented of deuise grant and to farme let , and so also by fine of record , but whether any rent be reserued or no , it is not materiall , vnto these leases there may bee annexed such exceptions , conditions and couenants , as the parties can agree of ; they are called chattels reall , and are not inheritable by the heires , but goe to the executors and administrators , and be sole able for debts in the life of the owner , or in the executors or administrators by writs of execution vpon statutes , recognizances , iudgements of debts or damages . they be also forfeitable to the crowne by outlawry , by attainder for treason , felonie , or premunier , killing himselfe , flying for felonie although not guilty of the fact , standing out and refusing to bee tryed by the country , by couiction of felonie , without iudgement , pettie larcerie , or going beyond the sea without licence . they are forfeitable to the crowne , in like manner as leases for yeares , or interest gotten in other mens lands by extending for debt vpon iudgement in any court of record , stat. marchant , stat. staple recognizances , which beeing vpon statutes are called tenants by stat. marchant , or staple . the other tenants by elegit , and by wardship of bodie and lands , for all these are called chattels reall , and goe to the executors and administrators , and not to the heires , and are soleable and forfeitable as leases for yeares are . lease for liues are also called freeholds , they may also bee made by word or writing , there must bee liuerie and seisen giuea at the making of the lease , whom we call , the lessor ; commeth to the doore , backside , or garden ; if it be a house , if not , then to some part of the land , and there he expresseth , that hee doth graunt vnto the taker ; called , the lessee , for tearme of his life : and in seisen thereof , hee deliuereth to him a turfe , twig , or ring of the doore , and if the lease bee by writing , then commonly there is a note written on the backside of the lease , with the names of those witnesses , who were present at the time of the liuerie of seisen made ; this estate , is not saleable by the sheriffe for debt , but the land is to bee extended for a yearely value , to satisfie the debt . it is not forfeitable by outlawrie , except in cases of felonie , nor by any of the meanes before mentioned , of leases for yeares ; sauing an in attainder for felonie , treason , premunire , and then onely to the crowne , and not to the lords by escheat . and though a noble man or other , haue libertie by charter , to haue all felons goods ; yet a tennant holding for tearme of life , being attainted of felonie , doth forfeit vnto the king and not to this noble man. if a man haue an estate in lands , for an other mans life , and dyeth ; this land cannot goe to his heire , nor to his executors , but to the partie that first entreth ; and he is called , an occupant . a lease for yeares or for life , may be made also by fine of record , or bargaine and sale , or couenant to stand seized vpon good considerations of marriage , or bloud , the reasons whereof , are hereafter expressed . entayles of lands , are created by guift ; with liuerie and seizen to a man , and to the heires of his bodie , this word ( body ) making the entaile , may be demonstrated and restrained to the males or females ; heires of their two bodies , or of the body of eyther of them , or of the body of the grand-father . entayles of lands began by a statute made in ed. . time , by which also they are so much strengthened , as that the tenant in tayle cannot put , away the land from the heire by any act of conueyance or attainder , nor let it , nor incomber it , longer then his owne life . but the inconueniencie thereof was great , for by that meanes , the land being so sure tyed vpon the heire as that his father could not put it from him , it made the sonne to bee disobedient , negligent , and wastfull ; often marrying withoutthe fathers consent , and to grow insolent in vice ; knowing , that there could bee no cheeke of dis-inheriting him . it also made the owners of the land lesse fearefull to commit murthers , felonies , treasons , and manslaughters ; for that they knew , none of these acts could hurt the heire of of his inheritance . it hindred men that had intayled lands , that they could not make the best of their lands by fine and improuement , for that none vpon so vncertaine an estate , as for terme of his owne life would giue him a fine of any valew , nor lay any great stocke vpon the land , that might yield rent improued . lastly , those entailes did defraud the crowne , and many subjects of their debts ; for that the land was not lyable longer then his owne life-time ; which caused , that the king could not safely commit any office of accompt to such , whose land were entailed , nor other men trust them with loane of money . these inconveniences , were remedied by acts of parliment ; as namely , by acts of parliament later then the acts of entailes , made , . h. . . h. . a tenant in taile may dis-inherit his sonne by a fine with proclamation , and may by that meanes also , make it subiect to his debts and sales . by a satute made , . h. . a tenant in taile , doth forfeite his lands for treason ; and by an other act of parliament , . h. . he may make leases good against his heire for . years , or three liues ; so that it be not of his cheife houses , lands , or demeasne , or any lease in reuersion , nor lesse rent reserued ; then , the tenants haue payed most part of . yeares before , nor haue any manner of discharge for doing wasts and spoiles , by a statute made h . tenants of entayled lands , are lyable to the kings debts by extent , & by a stat. made . & . eliz. they are saleable for the arrerages vpon his accompt for his office ; so that now it resteth , that entayled lands haue two priuiledges onely , which bee these . first , not to be forfeited for felonies . secondly not to bee extended for debts after the parties death , except the entayles bee cut off by fine and recouerie . but it is bee noted , since these notable statutes and remedies prouided by statutes doe dock entayles , there is start vp a deuice called perpetuitie , which is an entayle with an addition of a proviso conditionall tyed to his estate , not to put away the land from his next heyre ; and if hee doe , to forfeit his owne estate . which perpetuities if they should stand , would bring in all the former inconueniences subiect to entayles , that were cut off by the former mentioned statutes and farre greater ; for by the perpetuitie , if he that is in possession start away neuer so little , as in making a lease , or selling a little quillet , forgetting after two or three descents , as osten they doe , how they are tyed , the next heyre must enter ; who peradventure is his sonne , his brother , his vncle or kinsman , and this raiseth vnkind suites setting all that kindred at jatres , some taking one part some another , and the principall parties wasting theyr time and money in suites of law. in the end , they are both constrained in necessitie to joyne both in a sale of the land , or a great part of it to pay theyr debts , occasioned through theyr suites ; and if the chiefest of the family for any good purpose of well seating himselfe , by selling that which lyeth farre off to buy that which is neerer , or for the advancement of his daughters or younger sonnes , should haue reasonable cause to sell the perpetuitie if it should hold good , restraineth him . and more then that , where many are owners of inheritance of land nor entayled , may during the minoritie of his eldest sonne appoint the profics , to goe to the aduancement of the younger sonnes and pay debts by entayle and perpetuities , the owners of these lands cannot doe it , but they must suffer the whole to discend to his eldest sonne , and so to come to the crowne by wardship all the time of his infancie . wherefore seeing the dangerous times and vntowardly heyres , they might preuent those mischiefes of vndoing theyr houses by conueying the land from such heyres , if they were not tyed to the stake by those perpetuities , & restrayned from forfeiting to the crowne , and disposing of it to theyr owne or to theyr childrens good . therefore , it is worthy of consideration , whether it bee better for the subject and soveraigne to haue the lands secured to mens names and bloods by perpetuities , with all inconueniences aboue-mentioned , or to bee in hazard of vndoing his house by vnthriftie posteritie . the last and greatest estate of lands in fee-simple , and beyond this there is none of the former for liues , yeares or entayles ; but beyond them , is fee simple . for it is the greatest , last and vttermost degree of estates in land ; therefore hee that maketh a lease for life , or a guift in tayle , may appoint a remainder when hee maketh another for life or in tayle , or to a third in fee-simple ; but after a fee-simple hee cannot limit no other estate . and if a man doe not dispose of the fee-simple by way of remainder , when hee maketh the guift in tayle , or for liues , then the fee-simple resteth in himselfe as a reuertion . the difference betweene a reuertion and a remainder , is this . the remainder is alwayes a succeeding an estate , appointed vpon the guifts of a precedent estate , at the time when the precedent is appointed . but the reuertion is an estate last in the giuer , after a particular estate made by him for yeares , life , or entaile ; where the remainder is made with the particular estates , then it must be done by deeds in writing , with liuerie and seisen , and cannot by words ; and if the giuer will dispose of the reuertion after it remaineth in himselfe , hee is to doe it by writing , and not by poll ; and the tenant is to haue a notice of it , and to atturne it , which is to giue his assent by word , or paying rent , or the like ; and except the tenant will thus atturne the partie to whom the reuertion is granted cannot haue the revertion , neither can he compell him by any law to atturne , except the grant of the reuertion be by fine ; and then , hee may by writ provided for that purpose : and if hee doe not purchase by that writ , yet by the fine , the revertion shall passe ; and the tenant shall pay no rent , except he will himselfe , nor bee punished for any wastes in houses , vnlesse it bee graunted by bargaine and sale by indenture in rolles ; these fee simple estates lye open to all perils , forfeitures , extents , incumbrances and sales . lands are conueyed by these . meanes ; first , by feofment , which is , where by deed lands are giuen to one and his heyres , and liuerie and seizein made accordingly to the forme and effect of the deed , if a lesser estate then fee-simple bee giuen and liuerie of seizein made it is not called a feofment , except the fee-simple bee conueyed . a fine is a reall agreement , beginning thus , haec est finalis corcordia &c. this is done before the kings iudges in the court of common pleas , concerning lands that a man should haue from another to him and his heyres , or to him for his life , or to him and the heyres males of his body , or for yeares certaine , whereupon rent may bee reserued but no condition or couenants . this fine is a record of great credit , and vpon this fine arc foure proclamations made openly in the common pleas ; that is , in euery terme one for foure termes together , and if any man hauing right to the same , make not his claime within fiue yeares after the proclamations ended , hee looseth his right for euer ; except he an insant , a woman covett , a mad man , or beyond the seas , and then his right is saued ; so that hee claime within fiue yeares after the death of her husband full age , recouerie of his wits , or returne frō beyond the seas . this fine is called a feofment of record , because that it includeth all that the feofment doth , & worketh further of his owne nature , and barreth intailes peremptorily whether the heyre doth clayme within fiue yeares or not , if hee clayme by him that leauied the fine . recoueries are where for assurances of lands the parties doe agree , that one shall begin an action reall against the other , as though hee had good right to the land , and the other shall not enter into defence against it , but alleadge that he bought the land of he who had warranted vnto him , and pray that i. h. may be called in to defend the title , which i. h. is one of the cryers of the common pieas , and is called the common voucher . this i. h. shall appeare and make as if he would defend it , but shall pray a day to bee assigned him in his matter of defence ; which being granted him at the day hee maketh default , and thereupon the court is to giue judgement against him which cannot bee for him to loose his lands , because hee hath it not ; but the partie that hee hath sold it to , hath that who vouched him to warrant it . therefore the demaundant who hath no defence made against it , must haue iudgement to haue the land against him that hee sued ( who is called the tenant ) and the tenant is to haue iudgement against l. h. to recouer in value so much land of his , where in truth hee hath none , nor neuer will. and by this deuice grounded vpon the strict principles of law , the first tenant looseth the land , and hath nothing for it ; but it is his owne agreement for assurance to him that bought it . this recouerie barreth entayles , and all remainders and reuersions that should take place after the entayles , sauing where the king is giuer of the fntayle and keepeth the reuersion to himselfe ; then neyther the heyre , nor the remainder , nor reuersion , is barred by the recouerie . the reason why the heires , remainders , and reuersions are thus barred , is because in strict law the recompence adjudged against the cryer that was vouchee , is to goe in succession of estate as the land should haue done , and then it was not reason to allow the heire the libertie to keepe the land it selfe , and also to haue recompence ; and therefore hee looseth the land , and is to trust to the recompence . this fleight was first invented , when entayles fell out to bee so inconvenient as is before declared , so that men made no conscience to cut them off , so they could finde law for it . and now by vse , those recoveries are become common assurances against entayles , remainders , and reversions , and the greatest security purchasers haue for their monyes ; for a fine will barre the heire in tayle , but not the remainder , nor reversion , but a common recovery will barre them all . vpon feofments and recoveries , the estate doth settle as the vse and intent of the parties is declared by word or writing , before the acts was done ; as for example . if they make a writing , that one of them shall leavie a fine , make a feosment , or suffer a common recoverie to the other ; but the vse and intent is , that one should haue it for his life , and after his decease , a stranger to haue it in tayle , and then a third in fee-simple . in this case the lord setteth an estate according to the vse and intent declared ; and that by reason of the statute made . henry . concerning the land in possession to him that hath interest in the vse or intent of the fine , feosment , or recoverie ; according to the vse and intent of the parties . vpon this statute is likewise grounded the fourth and fifth of the six conveyances , viz. bargaines , sales , covenants , to stand seized to vses ; for this statute , wheresoever it findeth an vse , conjoyneth the possession to it , and turneth it into like quality of estate , condition , rent and the like , as the vse hath . the vse is but the equity and honestie to hold the land in canscientia boni viri . as for example . i and you agree that i shall giue you money for your land , and you shall make no assurance of it . i pay you the money , but you made mee no assurance of it . yet the equitie and honestie to haue it is with mee ; and this equity is called the vse , vpon which i had no remedie but in chancerie , vntill this statute made . henry . and now this statute conjoyneth and containeth the land to him that hath the vse . i for my money paid to you , haue the land it selfe , without any other conveyance from you ; and is called a bargaine and sale. but the parliament that made the statute did foresee , that it would bee mischievous that mens lands should sodainly vpon the paiment of a little money bee taken from them , peradventure in an alehouse or a taverne vpon straineable advantages , did therefore grauely provide an other act in the same parliament , that the land vpon payment of this money should not passe away , except there were a writing indented , made betweene the said two parties , and the said writing also within six moneths , inrolled in some of the courts at westminster , or in the sessions rolles in the shire , where the land lyeth ; vnlesse it bee in cities or corporate townes , where they did vse to enroll deeds , and there the statute extendeth not . the fifth conveyance of a fine ; is a conveyance to stand seized to vses , it is in this sort ; a man that hath a wife and children , brethren and kinsfolkes , may by writing vnder his hand , and seale ; agree , that for him , they or any of their heires , hee will stand seized of his lands to their vses , eyther for life in tayle or fee , so as hee shall see cause ; vpon which agreement in writing , their ariseth an equitie or honestie , that the land should goe according to those agreements ; nature and reason , allowing these provisions , which equitie and honestie is the vse . and the vse beeing created in this sort , the statute of , henry the eight , before mentioned ; conteyneth the estate of the land , as the vse is appointed . and so this convenant to stand seized to vses , is at this day since the said statute , a conveyance of land , and with this difference , from a bargaine and sale ; in that this needeth no enrollment as a bargaine and sale doth , nor needeth it to bee in writing indented , as bargaine and sale must , and if the partie to whose vse hee agreeth to stand seized of the land , bee not wife , or child , couzen , or one that hee meaneth to marry ; then will no vse rise , and so no conveyance ; for although , the law alloweth such weightie considerations of mariage and bloud to raise vses , yet doth it not admit so trifling considerations , as of acquittance , schooling , services , or the like . but where a man maketh an estate of his land to others , by fine , feofment or recoverie , hee may then appoint the vse to whom hee listeth , without respect of marriage , kindred , money or other things ; for in that case , his owne will and consideration , guideth the equity of the estate . it is not so when hee maketh no estate , but agreeth to stand seized , nor when hee hath taken anything , as in the cases of bargaine and sale , and covenant to stand to vses . the last of the six conueyances , is a will in writing ; which course of conveyance , was first ordained by a statute made . henry s. before which statute , no man might giue land by will ; except it were in a borrough-towne , where there was an especiall custome , that men might giue their lands by will ; as in london , and many other places . the not-giving of land by will , was thought to bee a defect at common law , that men vnawares or sudainely falling sicke , had not power to dispose of their lands , except they could make a feosment , or leavie a fine , or suffer a recoverie ; which lacke of time would not permit , and for men to doe it by these meanes , when they could not vndoe it againe , was hard ; besides , even to the last houre of death , mens minds might alter vpon further proofes of their children or kindred , or encrease of children or debt , or defect of servants , or friends to be altered . for which cause , it was reason that the law should permit him to reserue to the last instant , the disposing of his lands , and to giue him meanes to dispose it , which seeing it did not fidy serue , men vsed this devise . the conveyed their full estates of their lands in their good health , to friends in trust ; properly called feoffees in trust , and then they would by their wils declare how their friends should dispose of their lands and if those friends would not performe it , the court of chancery was to compell them , by reason of the trust ; and this trust was called , the vse of the land ; so as the feoffees had the land , and the partie himselfe had the vse , which vse was in equity , to take the profits for himselfe , and that the feoffees should make such an estate as hee should appoint them ; and if hee appointed none , then that the vse should goe to the heire , as the estate it selfe of the land should haue done , for the vse was to the estate , like a shadow following the bodie . by this course of putting lands into vse , there were many inconveniencies ; as this vse which grew first for a reasonable cause , viz. to giue men power and libertie to dispose of their owns , was turned to deceiue many of their just and reasonable rights ; as namely , a man that had cause to sue for his land , knew not against whom to bring his action , nor who was owner of it . the wife was defrauded of her thirds . the husband of beeing tenant by curtesie . the lord of his wardship , reliefe , heriot , and escheat . the creditor of his extent for debt . the poore tenant of his lease ; for these rights and duties were giuen by the law from him that was owner of the land , and none other . which was now the feoffee of trust , and so the old owner which wee call the feoffor should take the profits , and leaue the power to dispose of the land at his diseretion to the feoffee , and yet hee was not such a tenant to bee seized of the land as his wife could haue dower , or the lands bee extended for his debts , or that hee could forfeit it for felonie or treason , or that his heire could bee in warres for it , or any duty of tenure fall to the lord by his death , or that hee could make any leases of it . which frauds by degrees of time as they encreased , were remedied by diuers statutes ; as namely , by a statute of . henry , . and . henry , . it was appointed that the action may bee tryed against him which taketh the profits , which was then cesty and vse by a stature made , . richard , . leases and estates made by cesty and vse are made good , and estatutes by him acknowledged . henry , . the heire of cesty and vse is to bee in ward , . henry , . the lord is to haue reliefe vpon the death of any cesty and vse . which frauds neverthelesse multiplying dayly , in the end . henry . the parliament purposing to take away all those vses , and reducing the law to the the ancient forme of conveying of lands by publike liverie of seizen , fine , and recoverie ; did ordaine , that where lands were put in trust or vse , there the possession and estate , should bee presently carryed out of the friends in trust , and setled and invested on him that had the vses , for such tearme and time as hee had the vse . by this statute of . henry , . the power of disposing lands by will , is clearely taken away amongst those frauds , and so the statute did disponore justum cum imperio ; whereupon . henry , . an other statute was made , to giue men power to giue lands by will in this sort . first , it must bee by will in writing . secondly , hee must bee seized of an estate in fee-simple ( for tenant for an other mans life ) or terme in tayle , cannot giue land by will , by that statute . hee must bee solely seized , and not joyntly with an other ; and then beeing thus seized for all the land hee holdeth in soccage tenure , hee may giue it by the will except he hold any peece of land in capite by knight service of the king , and laying all his lackes together , he can giue but two parts by will ; for the third part of the whole , as well in soccage , as in capite must descend to the heire , to answere wardship , liverie and seizen , to the crowne . and so if hee hold lands by knights service of a subject , hee can devise of the lands but two parts , and the third , the lord by wardship , and the heire by descent is to hold . and if a man that hath three acres of land holden in capite by knights service , doe make a joynture to his wife of one , and convey an other to any of his children , or to friends , to take the profits , and to pay his debts or legacies , or daughters portions , then the third acre or any part thereof hee cannot giue by will , but must suffer it to descend to the heire , and that must satisfie wardship . yet a man having three acres as before , may convey all to his wife or children by conveyance in his life time , as by feolment , recoverie , bargaine and sale , or covenant to stand to vies , and to dis-inherit the heire . but if the heire bee within age , when his father dyeth , the king or other lord shall haue that heire in ward , and shall haue one of the three acres during the wardship , to sue liverie and seizen . but at full age the heire shall haue no part of it , but it shall goe according to the conveyance made by the father . it hath beene debated how the thirds shall bee set foorth , for it is the vse that all lands which the father leaveth to descend to the heire beeing fee simple , or in tayle , must bee part of the thirds ; and if it bee a full third , then the king , nor heire , nor lord , can intermeddle with the rest ; if it bee not a full third , yet they must take it so much as it is , and haue a supply out of the rest . this supply is to bee taken thus , if it bee the kings ward , then by a commission out of the court of wards , whereupon a iury by oath , must set downe so much as shall make vp the thirds , except the officers of the court of wards , can otherwise agree with the parties . if there bee no wardship due to the king , then the other lord is to haue a supply by a commission out of the chancetie , and a iury thereupon . but in all those cases , the statutes doe giue power to him that maketh the will to set foorth and appoint of himselfe , which lands shall goe for the thirds , and neither king nor lord can refuse it . and if it bee not enough , yet they must take that in part , and onely haue a supply in manner as before is mentioned out of the rest . propertie in goods . of the severall wayes whereby a man may get propertie in goods or chattels . . by guift . . by sale. . by stealing . . by waiuing . . by straying . . by shipwracke . . by forferture . . by executorship . . by administration . . by legacie . . propertie by guift by guift , propertie is when the property of goods may be passed by word or writing , but if there bee a generall deed of guift made of all his goods , this is suspirious to bee done vpon fraud , to deceiue the creditors . and if that a man who is in debt , make a deed of guift of all his goods to protract the taking of them in execution for his debt , this deed of guift is void , as against those to whom hee stood indebted , but as against himselfe his owne executors or administrators , or any man to whom afterwards hee shall sell or convey them , it is good . . by sale. propertie in goods by sale. by sale any man may convey his owne goods to another , and although hee may feare execution for debts , hee may sell them out-right for money at any time before the execution served , so that there be no reservation of trust betweene them , yet providing the money , hee shall haue the goods againe ; for that trust in such case , doth proue plainely a fraud to prevent the creditors from taking the goods in execution . . by theft or taking in iest. propertie of goods by theft or taking in iest. if any man steale my goods or chattels , or take them from mee in iest , or borrow them of mee , or as a traitor or felon carry them to the market or faire , and there sell them , this sale doth barre mee of the propertie of my goods , saving that if hee bee a horse hee must bee ridden two houres in the market or faire , betweene ten and fiue a clocke , and tolled for in the tolle-booke , and the seller must bring one to avouch his sale knowne to thee tolle-booke-keeper , or else the sale bindeth mee not . and for any other goods , where the sale in a market or faire shall barre the owner beeing not the seller of his propertie . it must bee sale in a market or faire where vsuall things of that nature are sold. as for example , if a men steale a horse , and sell him in smithfield , the true owner is barred by this sale ; but if he sell the horse in cheapeside , newgate or or westminster market , the true owner is not barred by this sale ; because , these markets are vsuall for flesh , fish , &c. and not for horses . so whereas by custome of london , every shop there is a market all the dayes of the weeke , sauing sundayes and holydayes ; yet , if a peece of plate , or iewell that is lost , or chaine of gold or pearle that is stolne or borrowed , be sold in a drapers or scriueners shop , or any others but a goldsmith , the sale barreth not the true owner , et sic in simili . yet by stealing alone of the goods , the thiefe getteth not such propertie , but that the owner may seize them againe wheresoever hee findeth them ; except they were sold in faire or market , after they were stolne ; and that bona fide , without fraud . but if the thiefe bee condemned of the felonie , or outlawed for the same , or outlawed in any personall action , or haue committed a forfeiture of the goods to the crowne , then the true owner is without remedie . neverthelesse if fresh after the goods were stolne , the true owner maketh persuit after the thiefe and goods , and taketh the goods with the thiefe , hee may take them againe ; and if hee make no fresh persuit , yet if hee prosecute the felon , soe farre as iustice requireth . this is to haue arraigned , indicted , and found guilty ( though hee bee not hanged , nor haue iudgement of death ) in all these cases hee shall haue his goods againe , by a writ of restitution , to the partie in whose hands they are . . by wayuing of goods . by wayuing of goods , a propertie is gotten thus . a thiefe hauing stolne goods beeing persued flyeth away and leaveth the goods , this leauing is called wauing , and the propertie is in the king ; except the lords of the mannor haue right to it , by custome or charter . but if the felon bee indicted or adjudged , or found guiltie , or outlawed at the suit of the owner of these goods , hee shall haue restitution of these goods , as before . . by straying . by straying , propertie in liue chattels , is thus gotten . when they come into other mens grounds , then the partie or lord into whose grounds or mannors they come , causeth them to bee seized , and a with put about their neckes , and to bee cryed in three markets adjoyning , shewing the markes of the chattell ; which done , if the true owner claymed them not within a yeare and a day , then the propertie of them is in the lord of the mannor whereunto they did stray ; if hee haue all strayes by custome or charter , else to the king. . wracke , and when it shall be said to bee . by shipwracke , propertie of goods is gotten . when a ship loaden is cast away vpon the coasts , so that no living creature that was in it when it began to sinke escapeth to land with life , then all those goods are said to bee wracked , and they belong to the crowne if they can bee found ; except the lord of the soyle adjoyning , can intitle himselfe vnto them by custome , or by the kings charter . . forfeitures . by forfeitures , goods and chattels are thus gotten ; if the owner bee outlawed , if hee bee indicted of felonie , or treason , or eyther confesse it , or bee found guilty of it , or refuse to bee tryed by peeres or iury , or bee attainted by iury , or flye for felony although hee bee not guilty , or suffer the exigent to goe foorth against him ; although he bee not outlawed , or goe over the seas without license , all the goods hee had at the iudgement , he forfeiteth to the crowne ; except some lord by charter can claime them . for in those cases prescripts will not serue , except it bee so ancient , that it hath had allowance before the iustices in eyre in theyr circuits , or in the kings bench in ancient time . . by executorship . by executorship , goods are gotten . when a man is possessed of gods maketh his last will and testament in writing or by word , and maketh one or more executors thereof ; these executors , haue by the will and ceath of the parties , all the propertie of their goods , chattels , leases for yeares , wardships and extents , and all right concerning those things . those executors may meddle with the goods , and dispose them before they proue the will , but they cannot bring an action for any debt or duety , before they haue proved the will. the prouing of the will is thus . they are to exhibite the will into the byshops court , and there they are to exhibite the will into the byshops court , and there they are to be sworne and the byshops officers are to keepe the will originall , and certifie the copie thereof in parchment vnder the byshops seale of office , which parchment so sealed , is called the will proved . . by letters of administration . by letters of administration , propertie in goods is thus gotten . when a man possessed of goods dyeth without any will , there such things as the executors should haue had if he had made a will , were by ancient law to haue come to the byshop of the diocesse , to dispose for the good of his soule that dyed , he first paying his funerals and debts , and giving the rest ad pios vsus . this is now altered by statute lawes , so as the bishops are to graunt letters of administration of the goods at this day to the wife if shee require it , or children or next of kin ; if they resnse it as often they doe , because the debts are greater then the estate will beate , then some creditor or some other will take it as the byshops officers shall thinke meet . it groweth often in question what byshop shall haue the right of proving wills , and graunting administration of goods . in which controuersie the rule is thus . that if the partie dead had at the time of his death bona notabilia in diuers diocesse of some reasonable value , then the arch-bishop of the prouince where hee dyed is to haue : the apptobation of his will , and to graunt the administration of his goods as the case falleth out ; otherwise , the bishop of the diocesse where hee dyed is to doe it . if there bee but one executor made , yet hee may refuse the executorship comming before the bishop , so that hee hath not entermedled with any of the goods before , or with receiuing debts , or paying legacies . and if there bee more executors then one , so many as list may refuse ; and if any one take it vpon him , the rest that did once refuse may when they will take it vpon them , and no executor shall bee further charged with debts or legacies , then the value of the goods come to his hands ; so that hee fore-see , that hee pay debts vpon record , debts to the king ; then vpon iudgements ; statutes , recognizances , then debts by bond and bill sealed , rent vnpayed , seruants wages , payment to head workmen ; and lastly , shop-bookes , and contracts by word . for if an executor , or administrator pay debts to others before to the king , or debts due by bond before those due by record , or debts by shop-bookes and contracts before those by bond , arrerages of rent , and seruants wages , hee shall pay the same ouer agains to those others in the sayd degrees . but yet the law giueth them choyce , that where diuers haue debts due in equall degree of record or specialty , hee may pay which of them hee will , before any suite brought against him ; but if suite bee brought hee must first pay them that get iudgement against him . any one executor may conuey the goods , or release debts without his companion , and any one by himselfe may doe as much as altogether ; but one mans releasing of debts or selling of goods , shall not charge the other to pay so much of the goods , if there bee not enough to pay debts ; but , it shall charge the party himselfe that did so release or conuey . but it is not so with administrators , for they haue but one authoritie giuen them by the bishop ouer the goods , which authoritie beeing giuen to many is to bee executed by all of them joyned together . and if an executor dye making an executor , the second executor is executor to the first testator . but if an administrator dye intestate , then his administrator shall not bee executor to the first ; but in that case the bishop , whom wee call the ordinarie is to commit the administration of the first testators goods to his wife , or next of kinne , as if hee had dyed intestate ; alwayes prouided , that , that which the executor did in his life-time , is to bee allowed for good . and so if an administrator dye and make his executor , the executor of the administrator shall not bee executor to the first intestate ; but the ordinarie must new commit the administration of the goods of the first intestate . againe , if the executor or administrator pay debts , or funerals , or legacies of his owne money hee may retaine so much of the goods in kind of the testator or intestate , and shall haue propertie of it in kind . . propertie by logacie . propertie by legacie , is where a man maketh a will and executors , and giueth legacies , hee or they to whom the legacies are giuen must haue the assent of the executors or one of them to haue his legacie , and the propertie of that lease or other goods bequeathed vnto him , is sayd to bee in him ; but hee may not enter nor take his legacie without the assent of the executors or one of them ; because , the executors are charged to pay debts before legacies . and if one of them assent to pay legacies hee shall pay the value thereof of his owne purse . but this is to bee vnderstood , by debts of record to the king , or by bill and bond sealed , or arrerages of rent , or seruants or workmens wages ; and not debts of shop-bookes , or bills vnsealed , or contract by word ; for before them legacies are to bee payed . and if the executors doubt that they shall not haue enough to pay euery legacie , they may pay which they list first ; but they may not sell any speciall legacie which they will to pay debts , or a lease of goods to pay a money legacie . but they may sell any legacie which they will to pay debts , if they haue not enough besides . if a man make a will and make no executors , or if the executors refuse , the ordinarie is to commit administration cum testamento annexo , and take bonds of the administators to performe the will , and hee is to doe it in such fort , as the executor should haue done if hee had beene named . finis . notes, typically marginal, from the original text notes for div a -e arist. top. lib. . cap. . . . grounds . uide . h. . . a. davers com. . b. stamford . maximes . principles . 〈◊〉 vide com. . a. eruditions . vide . hen. . . a. pollard . hen . dyer . nu . ed. . a. lit. vide . hen. . . a. . ed. . . b. lawes positiue . lawes . vide . hen. . . b. paston . li. . f. de reg. iuris . 〈◊〉 . colth . . b. prateus de reg : iuris lib. . ioach. hopp . de iuris arte . a. sim. shardius lexic . iuris regul . matheus gribaldus l. . c. . de ratione studij iuris . paulus lib. f. de regula iuris . ant masae de exercitio iurispr . lib. . ioach. hopperus de iurit arte l. . so . . a. definition , diuision . de causis . arist . met. c. . t. . arist. l. . dem. c. . to. . ant. masae de exercitio iurisperitorum l. . p . b. materiall cause blacton lib. . cap. . § . grounds borrowed out of logicke . . h. . a. b. . b. . . b. n. . dyer . com. . b. com. . b. . hen. . . a. com. . a. . rich. . . a. grounds borrowed out of naturall philosophie . com. . a. com. . a. com. . b. com. a. com. . a . ed. . . a. grounds borrowed out of motrall phylosophie . com. a. hen. . . a. com. . a. . hen. . . a. . hen. . . a. . hen . . a. com . b. com. . b. com. . b. grounds borrowed out of the ciuill law. com. . b. . hen . . com. . a. com. b. com. . b. com. . a. com. . b. . hen . . 〈◊〉 . l. verum . §. tempus : fitz . pro soc . l. sedes de rescript . l. bona fides ff . de reg. iuris . l. nihil ff : de regul iuris . . hen. . . 〈◊〉 . in fine . com. . a. halls case . com. . b. halls case com. . b. throgm . case . com. . b. groundes borrowed out of the canon law. grounds deriued from vse , custome , and conuersation of men . com. : . a. paramour . manxel . . a. b. com. . a. hallsc●s . . hen. . . b. per. martin . prouerbiall groundes . prouerbium vulgò interpretatur probatum verbum , cum dicatur quasi commune omxium verbum . prouerbia verò citata , instar iurium baberi tradium est . l. solent . f. de officio procurat . sim. sbardius lexicon iuris . com. . a. com. . a. com. . b. . eliz . a. . hen. . . a. maximes appliable onely to one title . t. e. . fitzb. grantes . . ass. p. . . ed. . . a. vide . ed. . . a. bracton lib. . c. fol . b. . hen . . b. brudnel . vide litt. : . hen. . . b. the diuers kinds of grounds which doe concern one title . arbitrement . arbitrement quid. the etymologie . the materiall cause . the formall cause . the efficient cause . the finall cause . genus . differentia . the effect . the adiunct . materiall cause reall matters reall actions mixt actions . personall actions . reall chattells personall chattells . personall dutie . matters de record . dutie in certaine . dett . debt . dett . formall cause . impossible . encounter ley. satisfaction . assistance des auters . iudiciall act. satisfaction . redeliuerie desbiens . redeliuerie des biens . parte del chose . part del chose plus que il doit . gager de ley. entermariage . accomptera iour passe . non in rerum natura . reasonable . equall . enter ascunes parties . quitt . quitt . petit. recompence . grenider value que le tort . release . release . doue● ceo que il nad . bone parte security del agard . certaine . entier . efficient cause . iohannes paulus lancelottus . arbitrator quid. ordinance . authoritie duety . election of the arbitratour . queux persons poient eux submitter al agarde . deputy . baron & feme . enfant . ascuns des parties . ioynt et seuerall . ascunes des parties . vndertaking the award . del parcell . parcell . parcell . compromise on submission . nient containe in submission . nient containe in le submission . real . estrangler . incident . iudge . estranger . estranger . estranger . aduice . adul● . vmpier . vmpier . duty . pronounce . deliuery de agard deliuery . deliuery . deliuery . county et lieu del deliuery . temps . temps . temps . temps . temps . temps . notice . notice . notice . notice . countre 〈◊〉 countermaund . countermaund . countermaund . regule a causa finali . final determination . a reducer incertainetie al certainetie . iudgement . intent del arbitrator . intent . intent . transition in rem iudicatam . i●rnient venu par pay se mony . iour de payment vncore prist . dene action . restore al primer action . restore al primer action . determine . double action . collaterall matter . collaterall matter . performance . assistance . parte . parte . temps . primer act. tout 〈◊〉 〈◊〉 chacun perform son parte voide award quaere . void agard . ane●ment . paria . differentia . arist. lib. dem. cap. . t. . peter ramus li. . dial . cap. . peter ramus ibidem . arist. top. lib. . cap. . arist. lib. . dem . cap. . t. . arist. lib. . dem . cap. . t. . . coras . de arte iuris . lib. cap. . ibidem . com. griesbr . . b. probabilia sunt qua probant , autoribus , aut plurimis aut certe sapientibus atque ijs vel omnibus vel plurimis vel ijs quo rum spectata est & perspecta sapientia . arist. top. l. . c. . doctor and student l. . c. . fol. c. a. arist. l. . c. . t. . ant. massaeus l. . de exercitio iuris peritorum . com. sharington & pledal . iohannes corassus de turis arte cap. . lib. . ioach. hopp . de iuris arte lib. . sol . . ibidem . com. mauxel . . a. com. ludford . b. lamberts iustice of peace . lib. . cap. . . ass. . . hen. . . b. . hen. . com. fogassa . . b. the second sort of secondarie rules grounded vpon entendment . . hen. . b. coningsby . hen. . . b. . hen. . . b. coningsby . com. wrotsley . . b. the second principall kind of contingent propositions . . hen. . . b. eliot . ethice verò supponitur quasi morali scientiae , qui tractat de moribus . bract. l. r. c. . . b. arist. ethic. l. . c. . bracton . l. c. . lib. . cap. . l. quaesit f. de sando instructio . the triple vse of equity in the lawes . lib. . c. . §. . com. bracton lib. . cap. . 〈◊〉 . . . hen. . cicero in orat. pro murena . the ground . . hen. . . b. elliot . . hen. . . b. kingsoul . rede . hen. . . b. rede . . hen. . . b. . hen. . . b. brudnel . ed. . . a. . ed . . a. . hen. . . . ed. . . a. . hen. . . a. . ed. . . b. the first exception . . hen. . . a. brooke . . hen. . . b. shellye . . edw. . . b. littleton . . hen. . b , ringsmil . . edw. . . a. the second exception . edw. . . a. b. . hen. . . a. . hen. . . b. . edw. . . a. littleton . . hen. . . a. b. the third exception . com. kidw. & braud . . d. com. kidw. & praud . . b. . edw. . . b. ed. . a. hen . . b. englefeild . . hen. . . b. . hen. . . b. . a. the fourth exception . com. mauxel . a. littleton villenage . com. mauxel . a. com. mauxel . a. . hen. . . b. exceptions ministred by equitie . the fist excep tion . . hen. . . b. pollard . . hen. . . b. norwich . . hen. . . b. palmes . . hen . . a. the sixt exception . . hen. . . b. browne . . ed. . . b. doctor and student . ver . . ed. . . b. ed. . . b. . ed. . . b. com. colib . . a. the second ground . first exception littleton garranty . littleton discents cas . . . hen. . . b. . ed. . . b. the second exception . litt. fol. . cas . . . hen . . a. . ed . . a. . ed. . b . hen , , b. com. z●ueb . . a. . ed. . . b. . hen. . . a. . ed. . . b. . hen . a. litt fol. . cas . . . . phil. mar. . n. . com. . b. com. a. com. . a. prataus . prataeus l. . c. . fol. . decius . . hen. . brooke . leasses . com. smith & stapleton . a. com. greisbrooke . a. . ed. . . per billing quod fuit concessum & abridge per fitzb. tit . assiss . . com. b. com. st. well . b. the vse of generall rules and the observations of their specialls . question . answere . arist. l. . pol. c. cic. . offic. iohane● corasius de a●e 〈◊〉 lib. . cap . . hen. . . b. n. . dyer . . hen . . a. . hen. . . a. stamf. . a. cap. . stamf. . b. . ed. . . b. . hen. . . a. culpepper . . hen. . . b. m. t. cicero pro ceci●a . com. colthurst . . hen. . . b. hen. . . b. . hen. . . b. . ed. . . a. assis. p. . . eliz. . . ed. . . a. b. com. walsingh . bracton li. . cap. . 〈◊〉 . . math. gribal dus deratione study juris lib. . cap. . notes for div a -e ☞ suretie to keepe the peace . ☞ action of the case , for slaunder , batterie , &c. ☞ appeale of murther giuen to the next of kinne . ☞ manslaughter , and when a forfeiture of goods , and when not . ☞ felon : de se. ☞ felony by mischance . ☞ deodand . ☞ cutting out of tongues and putting out of eyes , made felonie . ☞ the office of the constable . ☞ . high constables for euery hundred . first , high constables . ly , pettie constables . . pettie constable for euery village . ☞ the kings bench first instituted , and in what matters they anci ancuntly had inrisatction in . ☞ court of marshalsee erected , and its jurisaiction within . miles of the chiefe tunnel of the king , which is the full extent of the virge . sheriffes tourne instituted vpon the diuision of england into counties , the charge of this court was committed to the earle of the same countie , this was likewise called curia visus fra . pleg . ☞ subdiuision of the countie court into hundreds . the charge of the countie taken from the earles , and committed yearely to such persons as it pleased the king. the sheriffe is judge of all hundred courts not giuen away from the crowns . ☞ county court kept monethly by the sheriffe . ☞ the office of the sheriffe . ☞ hundred courts to whom they were at first granted . ☞ lord of the hundred to appoint two high constables . of what matters they enquire of in leets and law dayes . ☞ conseruators of the peace called by the kings writ for terme of their lines , or at the kings pleasure . ☞ conseruators of the peace & what their office was . ☞ conseruators of the peace by vertue of their office. ☞ justices of peace ordained in lieu of conseruators . power of placing and displacing iustic . of peace by vse deligated frō the k. to the chanchellor . ☞ the power of the iust. of peace , to fine the offenders to the crowne , & not to recompence the partie grieued . parle statut. . r. . cap. . & v dier . b. ils ount poiar d'inquier de murder car co felon . ☞ authority of the justices of the peace , through whō runne all the countie seruices vnto the crowne . ☞ beating , killing , burning of houses . attachments for suretie of the peace . recognizance of the peace deliuered by the justices at their sessions . ☞ quarter sessions held by the iustices of the peace . the authoritie of iustices of the peace out of their sessions . ☞ iudges of assize come in place of the ancient iudges in eyre about the time of r. . . kings bench. . marshals court . countie courts . . sheriffes torns . . hundred leets and lawdayes , all which dealt onely in crowne matters , but the iustice in eyre dealt in priuat titles of lands or goods , and in all treasons and felonies , of whom there were . in number , the whole realme , being diuided into six circuits . the authoritie of tournes , leets . hundreds , and law-dayes , as it was confirmed to some special causes touching the publike good . england diuided into six circuits , and two learned men in the lawes , assigned by the kings commission to ride twice a yeare through those shires alotted to that circuit , for their try all of priuate titles to lands and goods , and all treasons and felonies , which the countie courts meddle not in . ☞ the authority translated by parliament to iustices of assize . ☞ the authority of the iustices of assizes much lessened , by the court of common pleas , erected in h. . time . the iustices of assize haue at this day . comissions by which they ist . oyer and termin . goale deliuery . to take assizes . to take nisi pr. of the peace . ☞ oyer and terminer in which the judges are of the quorum , and this is the largest commission they haue . ☞ goale deliuery directed onely to the iudges themselues , and the clearke of the assize . the mannerof the proceedings of the justices of circuits in their circuits . the course now in vse with the iudges for the execution of the commission of goale deliuery . ☞ book allowed to clergic for the scarcitie of them to bee disposed in religious houses . ☞ concerning the allowing of the clergie to the prisoner . clergie allowed in all offences except treason and robbing of churches , and now taken away by many statutes . . in treason . . in burgiarie . . roberie . . purse cutting . . horse-stealing . and in diuers other offences particularized in seuerall statutes . by the stat. of . eliz. the iudges are appointed to allow clergie , and to see them burned in the hand , & to discharge the prisoners without deliuering them to the bishop . ☞ . commission is to take nisi prius and this is directed to the two iudges and the clerks of the assize . nisi prius . uen fac . pr. . free-holders . * distringas . the manner of proceeding of iustices of circuits in their circuits . the course the iudges bold is their circuits in the execution of their commissiō concerning the taking of nisi prius . postea . ☞ . commission as a commission of the peace . the justices of the peace and the sheriffe are to attend the judges in their countie . ☞ ospropertie of lands to bee gained by entrie . all lands in england were the conquerours and apprepriated to him vpon the conquest of england , and held of him except , . religious and church-lands . . the lands of the men of kent . land left by the sea belongeth to the king. occupancie . ☞ propertie of lands by discent . of discent . rules . brother or sister of the halfe bloud shall not inherit to his brother or sister but only as a child to his parents . discent . customes of certains places . euery heire hauing land is bound by the binding acts of his aneestors if he be named . dier . . plowden . dier . . plowden . dauy and pepps case . heire charged for his false plea. ☞ propertie of lands by escheat . two causes of escheat . first . bastardy . second attainter of treason , selome . ☞ treason . attainder of treason the king though the lands be not holden of him otherwise in attainder of felonie , &c. for there the king shall haue but annum diem & vastum . ☞ in escheat two things are to bee obserued . . the tenure . . the manner of the attainder , all lands are holden of the crowne immediatly or mediately by mesne lords , the reason . concerning the tenure of lands . ☞ the conqueror by right of conquest got all the lands of the realme into his hands , & as he gaue it hee still cap. first instituted refer●●drents and seruices knights seruice , in the reseruations in knights seruice tenure was . . marriage of the wards male and female . . horse for seru. . homage & ●al . . primer seisni . ☞ the police of the conquerour in the reseruation of seruices constituted i●●●ure particulars , was to haue the marriage of his wards both male and female . interest of marriage goeth employed in euery tenure by knights seruice . ☞ reseruation that his tenant shold keepe a horse of seruice , and serue vpon him himselfe , when the king went to warres , which is a part of that seruice called knights seruice . ☞ . institution of the conquerour was that his tenant ; by knights seruice vow vnto loyeltie , which he called homage , and make vnto him oath of his faith which was called fea tie . ayd money to make the kings eldest son a knight , or to marry his eldest daughter is likewise due to his maiestie from euery one of his tenants in knights seruice , that hold by a whole feo . and from euery tenant in soccage if his land be worth . pounds per ann . . . vide n. . fol. . . homage . . fcaltie . ☞ . institution was for recognizon of the kings bountie to bee payd by euery heire vpon the death of his a ancestor , which is one yeares profit of the lands , called , primer seissin . escuage was likewise due vnto the king from his tenant by knights seruice , when his maiestre made a voyage royall to warre against another nation , those of his tenants that did not attend him there for . dayes with horse and furniture fit for seruice , were to bee assessed in a certaine sum ne by act of parliament , to bee payed vnto his maiesty , which assessement is called escuage . ☞ knights seruice in capite , is a tenure de persona regis . tenants by grand serjantie , were to pay reliefe at the full age of euery heire , which was one years value of the lands so held vltra repriss . grand serjantie . pettie serjantie . the institution of soccage in capite and what it is now turned into monies reuts . antient demeasne texure , what ? ☞ office of alienation . a●ence of alienation is the third part of one yeres value of the land moderately rated . ☞ aid , a summe of mony ratably leauied according to the proportion of the lands . euery tenant by knights seruice in capite , had to make the kings eldest son a knight , or tomarry his eldest daughter . tenants by soccage in cap. must sue liuerie and pay primer seisin , and not to bee in ward for bodie or land. ☞ how mannors were at first created . mannors created by great men in imitation of the policie of the king in the institutions of tenures . knights seruice tenure reserued to common persons . knights seruice tenure created by the lord is not a tenure by knights seruice of the person of the lord , but of his mannor . reliefe is l. to bee paid by euery tenant by knights seruice to his lord vpon his entrance respectiuely for euery knights fee descended . soccage tenure reserued by the lord. ☞ reliefe of tennant in soccage one yeares rent and no wardship or other profit vpon the dying of the tenant . ayd mony and esctiage mony is likewise due vnto the lords of their tenants , ride n. . fol. . and . uillenage or tenure by coppie of court roll. ☞ court baron with the vse of it . suit to the court of the lord incident to the tenure of the free-holders . ☞ what attainders shall giue the escheat to the lord. attainders , . by iudgement . . by verdict confession . . by outlary giue the lands to the lord. ☞ of an attainder by out . lawrie . ☞ prayer of clergie . ☞ he that standeth mute forfeiteth no lands , except for treason . ☞ hee that killeth himselfe forfeiteth but his chattels . ☞ flying for felony , a forfeiture of goods . ☞ he that yeeldeth his body vpon the exigent for felonie forseiteth his goods . ☞ lands entailed , escheat to the king for treason . ☞ tenant for life committeth treason or felonie , there shall be no escheat to the lord. ☞ the wife looseth no power not-withstanding the hus band be attainted of felonie . ☞ attainder in felorie or treason by verdict , confession , or outlary , forfeiteth all they had from the time of the offence committed . of the relation of attainders , as to the forfeiture of lands and goods , with the diuersity . and so it is vpon an attainder of outlawrie , otherwise it is in the attainder by verdict , confession , and outlawrie as to their relation for the forfeiture of goods and chattels . the kings officers vpon the apprehension of a felon are to sesze his goods and chattels . ☞ a person attainted may purchase but it shall be to the kings vse . ☞ there can be no restitution in bloud . without act of parliament but a pardon enableth a man to purchase and the heire begotten after shall inherit those lands . ☞ propertie of land by conueyance diuided into . estates in fees. . in tayle . for life . . for yeeres . lease paroll . lease by writing . pole or indented . a rent need not to be reserued . lease for yeares they goe to the executors and not to the heires : leases are to bee forfeited by attainder . . in treason . . felonie . . premunire . . by killing himselfe . . for flying . . standing out or mute , or refusing to bee tryed by the country . . by conuiction . . pettie larcerie . . going beyond the sea without license . by what means they are forfeitable . ☞ extents vpon stat. staple , marchant , elegit , wardship of bodie and lands are chattels and forfeitable in the same manner as leases for yeares are . ☞ lease for life is not forfeitable by out lawry except in cases of eclonie or premunire and then to the king and not to the lord by eseheat and it is not forfeited by any of the meanes before mentioned of of leases for yeares . what liuerie of seisien is , and how it is requistie to euery estate for life . indorsement of liuerie vpon the backe of the deed and witnesses of it . lease for life not to bee sould by the sheriffe for debt but extended yearely . ☞ a man that hath bona felon , by charter shall not haue the tearme if leaser for life be attainted . ☞ occupant . ☞ of estate tailes and how such an estate may be limited . ☞ by the stat. of west . . made in e. . time estates in tayle were so strengthened they were not forfeitable by any attainder . ☞ the great inconuenience that ensued thereof . ☞ the prejudice the crowne received thereby . the stat. . h. . and . h. to bar estates taile by fine . . h. . . h. . h . . & . eliz ent eyles two priuiledges . not forfeitable for felonie . . ly not extendable for the debts of the partie after his death proviso , not to put away the land from his next heyre . if he do to forfeit his owne estate , and that his next heyre must enter . ☞ of the new devise called a perpetuitie , which is an entayle with an addition . these perpetuities would bring in all the former inconueniencies of estates tailes the inconueniencies of those perpetuities . ☞ quere whether it bee better to restraine men by those perpetuities from alienations or to hazard the vndoing of houses by vnthrifty posteritie . ☞ the last and greatest estate in land is fee-simple . a remainder cannot bee limitted vpon an estate in fee-simple . the difference betweene a remainder and a revertion . a revertion cannot bee granted by word . atturnement must be had to the grant of the revertion . the tenant not compellable to atturn but where the revertion is granted by fine . ☞ lands may be conueyed six manner of wayes . by feofment . by fine . by recouerie . by vse . by couenant . by will. what a feofment of land is . ☞ what a fine is , and how lands may bee conueyed hereby . fiue yeares non clayme barreth not . an infant . feme covert . mad. man. beyond sea. fine is a feofment of record . ☞ what recoueries are . common voucher one of the criers of the court. ☞ iudgement for the demaundant against the tenant in taile . iudgement for the tenant to recouer so much land in value of the common voncher . ☞ a recouery barreth an escheat taile and all reuersions and remaindments thereupon . ☞ the reason why a common recovery barreth those in remainder and reversions . ☞ the manie incōveniencies of estates in tayle brought in these recoveries , which are made now common conveyances and assurances for land. vpon fines , feofments , and recoveries , the estate doth settle according to the intent of the parties . ☞ bargaines sales and covenant to stand seized to a vse , are all grounded vpon one statute . ☞ what a vse is . before . h. . there was no remedie for a vse , but in chancerie . the stat. of . h. . doth not passe land vpon the payment of mony without a deed indented and enrolled . the stat. of . of h. . extendeth not into cities and corporate townes where they did vse to enroll deeds . ☞ a conueyance to stand seized to a vse . vpon an agreement in writing to stand seized to the vse of any of his kindred . a vse may be created and the estate of the land therevpon exccuted , by . h. . ☞ a convenant to stand seized to a vse needeth no enrolment as a bargaine and sale to ●se vse doth , so it bee to the vse of wife , child , or cozen , or one hee meaneth to marry . ☞ vpon a fine , feofment or recoverie , a man may limit the vse to whom hee listeth , without consideration of bloud , or money . otherwise , in a bargaine and sale or covenant . ☞ of the continuance of land by will. ☞ the not disposing of lands by will , was thought to bee a defect at the common law. ☞ the court that was invented before the stat. of . h. . which first gaue power to devise lands by will , which was a conveyance of lands to feoffors in trust , to such persons as they should declare in their will. ☞ the inconveniencies of putting lands into vse . ☞ the frauds of conueyances to vse by degrees of time , as they encreased , were remedied by the statutes . . h. . stat binding cesty and vse . . n . . r. . . h. . . h. . ☞ h . taking away all u'es redu●●● the law to the ancient form of conveyances of land , by feofment , fine , and recoverie . ☞ in what manner the stat. of . h. . giueth power to dispose of lands by will. if a man bee seized of capite lands and soccage , he cannot devise but two parts of the whole . ☞ the third part must descend to the heire to answere guardship , livery and seizen to the crowne . ☞ a conueyance by deuise of capite lands to the wife for her ioynture , or to his children for ther good , or to pay debts is void for a third part , by . h. . ☞ but a conveyance by act executed in the life time of the partie of such lands to such vses is not void , but 〈◊〉 pa● : but if the heire 〈◊〉 〈◊〉 age , he shal ● one of the acres to be in wara . aflictis . aflictis ne . addere . ☞ entayled lands part of the thirds . the king nor lord cannot intermeddle if a full third part be left to descend to the heire . ☞ the manner of making supply when the part of the heire is not a full third . ☞ the stat. giueth power to the testator to set out the third himselfe , and if it bee not a third part , yet the king or lord must take that in part , and haue a supply out of the rent ☞ a deed of guift of goods to deceiue his creditors is void against them , but good against the executors admin . or vender of the partie himselfe . ☞ what is a sale bona fide and what not , when there is a priuate reseruation of trust betweene the parties . ☞ how a sale in market shall bee a barre to the owner . ☞ of markets and what markets such a sale ought to be made in . ☞ the owner may seize his goods after they are stolne . ☞ if the thiefe be condemned for felonie , or outlawed , or forfeit the stolne goods to the crowne , the owner is without remedie . ☞ but if hee make fresh persuit hee may take his goods from the thiefe . ☞ or if hee prosecuted the law against the thiefe and convict him of the same felonie he shall haue his goods againe , by a writ of restitution . ☞ executors may before probat dispose of the goods , but not bring an action for any debt . ☞ what probat . of the will is , and in what manner it is made . pij vsus . 〈◊〉 ☞ where the iutestate had bona notabilia in diuers diocesse , then the archbishop of that prouince where bee dyed is to commit the administration . ☞ executor may refuse before the bishop , if hee haue not intermedled with the goods . ☞ executor ought to pay , iudgements . stat. recogn : debts by bonds and bills sealed . rent vnpayed . seruants wages head workmen shop-booke and contracts by word . ☞ debts due in equall degree of record , the executor may pay which of them hee please before suit commenced . ☞ any one executor may dot as much as all together , but if a debt be released and assets wanting , he shall only be discharged . ☞ otherwise of administrators . ☞ executor dyeth making his executor , the second executor shall be executor to the first testator . ☞ but otherwise , if the administrator dye making his executor , or if administration be committed of his goods . inboth cases , the ordinarie shall commit administration of the goods of the first iutestate . ☞ executors or administrators may reteyne ☞ executors or administrators may retaine ; because the executors are charged to pay some debts before legacies . ☞ legacies are to bee payed before debts by shopbookes , bils vnsealed , or contracts by word . ☞ executor may pay which legacie hee will first . if the executors doe want they may sell any legacie to pay debts . ☞ when a will is made and no executor named , administration is to bee committed cum testamento annexo . instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of robberies, burglaries and other outrages england and wales. council of state. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason .f. [ ]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing e thomason .f. [ ] estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of robberies, burglaries and other outrages england and wales. council of state. sheet ([ ] p.) printed for edward husband, london : . issued nov. . steele notation: vagabonds and every. annotation on thomason copy: "nou: ". reproduction of original in the henry e. huntington library. eng law enforcement -- england -- early works to . broadsides -- england a r (thomason .f. [ ]). civilwar no instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of england and wales. council of state f the rate of defects per , words puts this text in the f category of texts with or more defects per , words. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - elspeth healey sampled and proofread - elspeth healey text and markup reviewed and edited - pfs batch review (qc) and xml conversion instructions to be observed by the several iustices of peace in the several counties within this commonwealth , for the better prevention of robberies , burglaries and other outrages . vvhereas great robberies , burglaries and other outrages are daily committed , to the exceeding great damage and danger of the commonwealth , ●…s therefore , in pursuance of the special order of parliament to us directed , or●red for the future , that the ensuing directions be forthwith put in execution by justices of peace in their several counties ; viz. you are to cause all laws in force against rogues , vagabonds and sturdy beggars , to be duly and effectually executed . ii. you are to cause sufficient watch and ward to be kept by ●●rsons able in body , with bills , guns , or other weapons , in all fit ●●…aces and towns adjoyning to any great road ; and that you give ●…rder to the constables of every such town , that posts , rails and ●…ates be set up in every such place and town , to the end to examine 〈◊〉 passengers , as also thereby to stop the speedy flight of all thieves ●●d robbers . iii. and in order to their more speedy apprehension , you shall give ●rder , that they have in readiness in every such town , an expert ●●rson and an able horse , to be a guide to such as at any time shall 〈◊〉 in pursuit of thieves and robbers . iv. you shall give order , that as they shall meet with , or ap●●…hend any such , or any whatever suspitious persons , that they ●●…thwith carry them before the next justice of the peace , to be by 〈◊〉 proceeded withal according to law . v. you shall take care effectually to suppress all unlicensed ●●ehouses , and all such alehouses and houses whatsoever , usually ●…ertaining travellers and strangers , which do stand in blinde ●orners out of the view of towns or houses . vi . that to all such as shall necessarily be continued , and all and ●…ery the innholders within their counties , you shall give order 〈◊〉 give in writing every night , viz. by six of the clock in winter , and 〈◊〉 eight of the clock in summer , to the justices of the peace , or to such ●●her as shall be by them deputed , of the number of all travellers ●…dging within their respective houses , and whither they are tra●●lling : with a full description of their apparel , of their horses , ●eldings and mares : and in case of default herein by any inn●●…lder or alehousekeeper , he or they so offending are to be suppres●●d , and not suffered after to hold or keep any inn or alehouse : and ●ou are to give order to the several constables , to return you a ●eekly account of their proceedings herein : and you are every moneth to give an account of your proceedings to this councel . signed in the name , and by order of the councel of state appointed by authority of parliament . an act for the better preventing and suppressing of prophane swearing and cursing england and wales. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing e ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing e estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) an act for the better preventing and suppressing of prophane swearing and cursing england and wales. broadside. printed by edward husband and john field ..., london : . imperfect: creased. reproduction of original in the british library. eng swearing -- legal status, laws, etc. -- great britain. law -- great britains. a r (wing e ). civilwar no an act for the better preventing and suppressing of prophane swearing and cursing. england and wales b the rate of defects per , words puts this text in the b category of texts with fewer than defects per , words. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion blazon of the protectorate an act for the better preventing and suppressing of prophane swearing and cursing . for the better preventing and suppressing of the detestable sins of prophane swearing and cursing , be it enacted by this present parliament , and the authority thereof , that if any person or persons shall hereafter offend by prophane swearing or cursing , in the presence or hearing of any justice of the peace of the county , or chief officer , or justice of peace of the city or town corporate where the same shall be committed , or shall be thereof convicted by confession of the party , or by the oath of one witness or more , before any such justice of peace of the county , or chief officer or justice of peace of such city or town corporate where such offence is or shall be committed ( for which end every justice of peace , and every such head-officer as aforesaid , have power hereby within their several precincts to administer an oath , and are enjoyned to keep a record of such conviction , and to make certificates quarterly of the name of every person so convicted , and the degree of such his or her offence , to the clerk of the peace for the county where such conviction shall be , to be by him recorded ) that then every such offender shall for every time so offending , forfeit and pay to the use of the poor of that parish where the same is or shall be committed , for the first offence , according to the degree and quality of such person and persons so offending , in maner and form following ; viz. every person and persons who writeth or stileth himself , or is usually written or stiled duke , marquis , earl , viscount , baron or lord , the sum of thirty shillings ; every person and persons who writeth or stileth himself , or is usually written or stiled baronet or knight , the sum of twenty shillings ; every person and person who writeth or stileth himself , or is usually written or stiled esquire , the sum of ten shillings ; every person and persons who writeth or stileth himself , or is usually written or stiled gentleman , the sum of six shillings and eight pence ; and all other person and persons whatsoever , under the degrees before expressed , shall forfeit and pay to the uses aforesaid , the sum of three shillings and four pence : and that every such offender and offenders shall forfeit and pay for the second offence , in maner and form following ; viz. every such duke , marquis , earl , viscount , baron or lord as aforesaid , the sum of three pounds ; every such baronet or knight as aforesaid , the sum of forty shillings ; every such esquire as aforesaid , the sum of twenty shillings ; every such gentleman as aforesaid , the sum of thirteen shillings and four pence ; and all and every other person and persons whatsoever so offending , under the said degrees , the sum of six shillings and eight pence : and that every such offender and offenders for the third , fourth , fifth , sixth , seventh , eighth and ninth offence , and every of them being thereof convicted as aforesaid , shall forfeit and pay to the uses and purposes aforesaid , the penalty and forfeiture by this act imposed on every such person , according to his degree and quality aforesaid , for such second offence . and be it further enacted by the authority aforesaid , that all and every person and persons , of what degree or quality soever , who shall upon information , presentment or indictment before any justice of assize , justices of oyer & terminer , justices of the peace in every shire ▪ city or town ( who have hereby power & authority to enquire of , hear and determine the same ) by confession or verdict be found guilty of any the offences aforesaid the tenth time , shall besides incurring the forfeiture by this act imposed on such person for such second offence , be adjudged a common swearer or curser , and be bound with sureties to the good behavior during three years ; and that for every like offence afterwards , upon the like conviction , every such offender shall incur the like forfeiture , and give the like security as for the tenth offence : and that if any person that shall be so bound as aforesaid , shall at any time aftewards , while he stands so bound , be convicted in maner aforesaid of the like offence , the same shall be adjudged and taken to be , and the same is hereby adjudged and declared to be a breach of the good behavior by every such person and persons . and be it further enacted by the authority aforesaid , that every woman , whether she be wife , widow or single woman , that shall commit any of the offences aforesaid , in the presence of any justice of peace or head-officer aforesaid , or shall be of such offence convicted as aforesaid , shall for every such offence incur the like forfeiture , penalty and judgement , as if the same offence had been committed by the husband of such wife or widow , or by the father of such single woman , and according to the degree and quality of such husband and father respectively herein before expressed . and be it likewise enacted by the authority aforesaid , that all and every the forfeitures aforesaid , shall be levyed upon the goods and chattels of every person and persons before specified so offending , by warrant from such justice of the peace or head-officer aforesaid , by distress and sale of the said goods and chattels , restoring the overplus : and in default of payment of the said forfeiture , or security given for the same , in case no sufficient distress shall be found , the offender , if he or she be above the age of twelve years , shall by warrant from such justice of the peace or head-officer , be set in the stocks , there to remain for the space of three whole hours for such first offence ; and for the second , third , fourth , fifth , sixth , seventh , eighth and ninth offence , and every of them , for the space of six hours ; but if the offender be under the age of twelve years , and shall not forthwith pay the forfeiture aforesaid , that then he or she shall by warrant of such justice of the peace or head-officer , be whipped by the constable , or by the parent or master of such offender , in the presence of the constable . and be it further enacted by the authority aforesaid , that it shall and may be lawful , to and for any constable , headborough , churchwarden , overseer of the poor , or any other officer , to apprehend , or cause to be apprehended , or for any other person or persons whatsoever , by warrant from any justice of peace , or such head-officer as aforesaid , to apprehend and bring , or cause to be apprehended and brought before any justice of peace , or head-officer as aforesaid , the body of any person or persons offending contrary to this act , to the end all such persons may be proceeded against as to justice shall appertain . and it is further enacted , that in any action brought against any justice of peace , constable , or any other officer or person acting or doing , or commanding to be acted or done , any thing in pursuance of this act , touching or concerning any the offences or matters aforesaid , the defendant in every such action shall and may plead the general issue , and give the special matter in evidence : and upon the non-suit of the plaintiff , or verdict passing for the defendant , the party defendant shall have and recover his and their treble costs . and be it further enacted by the authority aforesaid , that this present act shall be in force from and after the first day of august , one thousand six hundred and fifty : and that one act of parliament , made in the one and twentieth year of the raign of the late king james ( entituled , an act against prophane swearing and cursing ) be and is , from and after the said first day of august , hereby repealed . and it is lastly enacted by authority aforesaid , that this act be forthwith printed ; and that all and every sheriff and sheriffs of every county and city within england and wales , do proclaim , or cause this act to be proclaimed in all cities , towns , boroughs , and other publique and usual places within their respective liberties , upon the market-day next after the receipt thereof , and cause the same to be set up , and affixed in the publique places accustomed . die veneris , junii , . ordered by the parliament , that this act be forthwith printed and published . hen : scobell , cleric . parliamenti . london , printed by edward husband and john field , printers to the parliament of england , . the excellency and præheminence of the lavv of england, above all other humane lawes in the world asserted in a learned reading upon the statute of to . cap. : concerning tryals by jury of twelve men and tales be circumstanibus / by thomas williams ... williams, thomas, ?- . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing w estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the excellency and præheminence of the lavv of england, above all other humane lawes in the world asserted in a learned reading upon the statute of to . cap. : concerning tryals by jury of twelve men and tales be circumstanibus / by thomas williams ... williams, thomas, ?- . hale, matthew, sir, - . risden, thomas. gray's inn. [ ], p. printed by the assigns of r. and e. atkins ... for norman nelson ..., london : . "judge hale his opinion in some select cases" and "certain select moot-cases, intituled, les cases de greys-inn ..." each has special t.p. with imprint : london, printed for norman nelson, . reproduction of original in cambridge university library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- england. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion the excellency and praeheminence of the lavv of england , above all other humane lawes in the world . asserted in a learned reading upon the statute of h. . cap. . concerning tryals by iury of twelve men , and tales de circumstantibus . by thomas williams , late of the inner temple , esq sometime speaker of the commons house in parliament . ii. mr. risden's reading upon the statute of h. . chap. . of avowries . iii. judge hale's opinion in some select cases . iv. certain cases which have been formerly mooted by the society of greys-inn . london , printed by the assigns of r. and e. atkins , esquires , for norman nelson at greys-inn-gate in holbourn , mdclxxx . the publisher's preface . the book consisting of four several and distinct tracts , it will not be unnecessary to give the reader a brief praeliminary account of each . and first to begin with the reading upon the statute of h. . cap. . of jurours , and tales de circumstantibus , by mr. williams of the inner-temple ( to whom mr. dugdale in his origines juridiciales , gives the title of prolocutor parliamenti ) begun in quadragesima & phil. & mariae ; it is usher'd into the world with an incomparable praeface , wherein is most learnedly asserted the excellency and preheminence of the lawes of england , above all other humane lawes in the world , in respect of the great benefits and advantages the subjects of england do receive and enjoy in their trials by juries and the verdict of twelve honest men of the neighbourhood where the fact is committed , or the cause of action doth arise . which reading he hath divided into nine branches or lectures ; in the first whereof he tells us in what actions , suits and demands the triall provided by this statute shall take effect ; and in what not . and in what courts such actions &c. ought to be brought and commenced . and in what place the court ought to be kept . and when the ●ction shall be commenc'd in one court , and shall be sent to be tried in another court. and that it is his opinion that the triall ordain'd by this statute lies only in such actions as have their trial by men , and no more ; and that only in such actions in which the proces of venire facias , habeas corpora , and distringas doth lie against the jurours after issue joyn'd ; and in no other actions . in the second lecture , by way of exposition upon these words of the statute , issues joyn'd between party and party , he shews between what persons and parties the trial provided by this statute shall take effect , and who shall be said to be party within the purview of this statute , and who not . thirdly , he discovers what issue joyn'd shall be tried according to the intendment of the statute , and what not ; also of what issues the plaintiff or demandant may be ousted of his triall ordain'd by this statute , and of what not . and moreover , forasmuch as the words of the statute be , that in every writ of venire facias which hath this clause , quorum quilibet , every one who shall be retorn'd ought to have freehold of the value of s. per annum at the least ; and every one that shall be retorn'd in the other writ of venire facias upon this clause , quorum quilibet , ought to have some freehold , he tells us in his fourth lecture what shall be said sufficient franktenement for jurours upon the one writ , and upon the other . fifthly , you have his opinion upon those words of the statute , that the sheriff shall not omit to retorn such persons as have sufficient freehold , &c. upon pain of forfeiting s. when the sheriff or other minister retorns any persons who at the time of the panel made have not any freehold , and yet have sufficient when they are to be sworn , shall not lose the penalty of the statute ; and when they shall lose the penalty where they retorn persons who have sufficient freehold at the time of the retorn , and when they shall be sworn they have nothing ; and when they shall not lose the penalty in such case upon this statute . and when the sheriff may by their retorn of jurours of sufficient freehold otherwise lose the penalty intended by this statute , and when not . sixthly , whereas the words of the statute are , that the sheriff shall impanel upon every venire facias sufficient hundredors , and that he shall lose for every hundredor omitted in the panel s. he shews who shall be said sufficient hundredors according to the intendment of the statute , and who not ; and when he shall lose the penalty for retorning no hundredors . seventhly , he tells you upon what default or non-appearance of the jurours the justices of nisi prius may award tales according to the statute , and upon what not ; and when the plaintiff or demandant shall have a tales upon his prayer , and yet when it is retorn'd , he shall not proceed to the taking of the inquest according to the intendment of the statute ; and how many persons the sheriff may retorn upon a tales according to the statute . in the eighth lecture , he informs us what person plaintiff or demandant may pray the tales according to the statute , and what not ; and what persons the sheriff &c. may retorn upon the tales , and what not . ninthly and lastly , he gives us an account what challenges the parties may have to the array , or to the poll of the tales de circumstantibus , and what not ; and what shall be said a principal challenge , and what not ; and when the poll-challenge shall be drawn presently upon the challenge , and when not . the second treatise in order , is that of mr. risden of the same house , being a reading upon the statute of h. . cap. . of avowries , distinguished into five divisions or lectures ; in the first whereof he shews , . what mannors , lands , tenements and hereditaments may be holden . . what persons may hold such lands , &c , and , . of what persons such lands &c. may be holden within the purview of the statute ; and what not . in the second lecture he demonstrates what rents , customs , and services are meant intended and provided for , within the purview of this act ; and what not . in the third lecture he tells us , in what actions , suits and courts the lord may avow . . in what cases he shall make conusance : and , . in what cases he may justifie , within the statute ; and what not . fourthly , he declares his opinion , what things may be distrain'd , and upon what lands such distress may be taken ; and upon what not , within the statute . . if seisins and other observances in avowries at common law , be required in avowries upon this statute . and lastly , he explains how far the second branch of the statute extends to other rents than those are included in the first ; and to what other rents . and in what cases the defendant shall recover costs and damages by this statute ; and in what not . the third and fourth parts of this collection being genuine and authentique copies of some select cases of the late lord chief justice hale , in which he gave his opinion when he was at the bar ; as also of several moot-cases called the cases of greys-inn ; i conceive it would be both vanity and presumption in me to offer at any encomium upon the first , lest i should injure the manes of that reverend person , whose learning and integrity not only now flourishes in the memories of ( but is never to be forgotten by ) the gentlemen of the long robe . nor can i think it at all becoming me to express my private sentiments of the latter , but submit the cases themselves to the more eximious judgment of that honourable society , from whence they derive their title . w. b. the authors preface . when god created man , at first he left him free , not subject to any law , until he fell from god through disobedience and the breach of one single command ; which was the first offence that was committed upon the earth . after which , adam being in some measure restor'd to favour , liv'd under that law , which we call the law of nature , which in effect is compriz'd in these few words , do as thou would'st be done by . by which law , the holy patriarchs , enoch , noah , abraham , and several others , were for many ages guided ; that is to say , till the law was given by moses . the same law was also extended to another sort of people , who absolutely contemn'd it ; and making their wills their law , render'd themselves as wicked , as the others were sincere and upright . and as they differ'd from the holy fathers in the government of their lives , so did they likewise vary from them in the ends they propos'd to themselves . i mean the corrupted race of cain , the giants of nimrod , of ishmael and others , who after the fall of adam were the first examples of impiety and disobedience . whereby you are not only to understand that the first thing requir'd of god from man , was obedience , but also that the law was first ordained by god for the reformation of man ; the perfection whereof consisteth in due obedience , without which the best laws and ordinances in the world can never be well executed , nor kingdoms or countreys be preserv'd . for although at the beginning the heart of man had not receiv'd or entertain'd any law wherein obedience and order were prescrib'd unto him , yet our human fabrick from the first creation of the world , has taught us to be sensible , that disobedience and discord among our very members , causes the destruction and dissolution of the whole frame ; whereby nature her self not onely teaches us the necessity of that duty and obedience which the members owe each to other , but also of that obedience and duty , which all the members joyntly owe to the head ; and consequently what care the head ought to take for the preservation of the members . nature thereby giving us to understand , that the one cannot subsist in a sure and perfect estate , without the assistance of the other . the consideration whereof has occasion'd several of the ancient writers to resemble the estate of every good common-wealth to the natural body of man , whose health and vigour depends upon the orderly government of the several parts ; which occasions me to reiterate the same resemblance in some measure , and to divide a commonwealth into four parts . the first and chiefest part i take to be the royal estate , and the person , by god and the lawes of the land constituted and appointed as the head of the same . in the next degree i place the nobility and chief magistrates , upon whose shoulders lies the greatest burthen and charge of good government . the third , i take to be the commons , divided into sundry inferiour degrees , which i reckon to be the members of this body politick , among which i accompt , one of the most necessary to be the ministers of the law , which i may liken to the hands of this body ; whose natural function it is , not onely to defend the body , but also to afford such virtue and advantages as they receive from this common-wealth , to every particular part and member of the same , as occasion requires . by the fourth part ( so plac'd in order , for the more easie explanation of the outer-parts of this body politick , though indeed it ought to be rank'd in the second degree , next to the head , ) i mean the prelacy and clergie , which may fitly be resembled to the heari and vitals contain'd within the body , as being naturally separated in their functions from the external parts . which as they lye more conceal'd and secret , so are they more liable to discomposure , and distemper , whereby they are not onely in a condition to weaken themselves , but the head , the members , and indeed all the whole frame of the body : so that while neither are able to exercise their functions as they ought , the totum compositum at length must absolutely perish . on the other side , the members being orderly dispos'd , and rightly directed , both strengthen and render the whole body more vigorous and active , free from distemper , and corruption of humours . and thus it fares with a common-wealth , the members of which being under a sound and orderly management , it followes of necessity , that the same must be preserv'd and continu'd by civil and good government , which is the law , without which , no commonwealth can be well ordered and perpetuated . and this is the opinion of the famous bracton , who in the first book of his treatise entitl'd , quae sint vera necessaria , thus delivers himself , si autem reges defecerint , sic exterminabitur justitia , nec erit qui justum faciat judicium . which plato also affirms in these words , quis non apertis oculis cernit , necessariam humano generi esse legem ? nam absque legibus nihil ab atrocissimis feris descrepamur . and this commonwealth , from its very first establishment , was always govern'd by law ; the intrinsic worth whereof , so much by bracton recommended , being the subject of my discourse in part , occasions me to recite what he writes of our law , and the execution of the same . for the better understanding whereof , i shall divide it into five parts . first , what the extent of this law is : concerning which , the same author thus expresses himself ; intentio legis est , ut per eam doceantur & corrigantur errantes , & ut puniantur contumaces ; et ut mali efficiantur boni , et boni meliores tum metu poenarum , tum expectatione praemiorum : secundum horatii dictum : oderunt peccare boni virtutis amore , oderunt peccare mali formidine poenae . the second is , what advantage it brings to the students thereof : of which he writes in these words ; utilitas , adeoque legis nobilitas addiscentes honores conduplicat , et profectus , et facit eos principare in regno , et sedere in aula regia , et in sede ipsius regis . the third is , what the end of the law is : of which he thus writes : lex eò tendit , ut per eam jurgia sopiantur , lites discindantur , et vitia expellantur ; et in regno conservetur pax et justitia . the fourth , how available the execution thereof is to the common-wealth : of which the same author thus writes : justa & manifesta legis executio est regis & regni praeservatio . fifthly , what rules the ministers of the law ought to observe , and how they ought to be qualify'd . tria sunt praecepta jurisprudentiae professori necessaria , honestè vivere , alterum non ledere , et jus suum unicuique tribuere . the conclusion of all which in short is this , that the law reforms evil men , and makes good men better ; it brings honour to the professors and practicers of it ; it puts an end to all strife and contention ; vice is thereby expell'd , and peace and justice establish'd . that the true execution thereof is the preservation of the king and kingdom , and prescribes to the ministers thereof an honest life , to hurt no body , and to do as they would be done by ; which is the sum of our law , and of the execution of the same . 't is true , our law has been by some persons of late dayes vilify'd and contemn'd , in regard that it is not a certain law digested into great volumes , like the civil law , nor us'd in any other country . to which effect , thus quintus fabius , perfaelices essent artes , si de illis soli artifices judicarent . ignotum vero non solum non amari , sed et sperni solet . however if no law were to be admitted , but that which is written , we should then condemn the law of nature , which is the parent of all good lawes in the world ; and by which the chosen of god were directed and guided many hundred years before there was any law written : but there were other unwritten lawes besides this , as plato seems to intimate in his epistles , leges non scriptae inspiratione quadam de mentibus divinis in mentes humanas transfusae sunt . so that although our law was never written , yet since it is grounded upon the law of god and the law of nature , it may be said to be altogether as much authoriz'd by gods word , as any other human written law : according to that of st. paul , cum enim gentes qui legem non habent , naturaliter ea quae legis sunt faciunt , hujusmodi legem non habentes ipsi sunt lex sibi ipsis . and our law , as bracton writes , consists both of reason and reasonable custome . nor was it grounded at first upon the onely will of the prince , according to the maxim , quod principi placet , legis habet vigorem , but was made and ordain'd with the public consent of many , pro conservatione regis & regni , et in utilitatem reipullicae . and therefore it is also call'd lex politica , according to that of st. thomas , in his book dedicated to the king of cyprus , lex politica ex assensu populi , optimè instituta minor is non est efficaciae aut virtutis , quam lex regalis ab optimo principe promulgata . so that the authority of our law is nothing inferiour to the authority of all other human lawes . neither can the certainty of our law be better asserted and proved , than by the daily experience of the same . for by the order of the common-law of this realm , the end of all suits is as certain as the commencement , and the determination as quick as in any other law. on the other side , whether it be so dilatory and tedious , as the civil law in processes of appeal , i shall submit to the judgment of those that have had experience of both . now the reason why our law varies from the lawes of other countries , is because the realm of england was not known at the begining when the foundations of the jus civile were erected , and that law first ordain'd to be the general law of nations , at that time discover'd and more familiarly made known . and although our law be private to our selves , and not known to forreign countries , yet we are deem'd , by men of great learning and judgment , to excel all other countries , not onely for that the subjects of this realm are better govern'd , and kept in a more orderly quiet and obedience , than the subjects of other countries under the restraint of other lawes , but because the ordinary way of tryal by the same is more reasonable , and grounded upon more equity and indifferency , than the manner of tryal by any other law. now in regard the statute upon which i intend to discourse , was made for the reformation of certain abuses , that were by corruption advanced to hinder and overturn the ordinary way of tryal , it behoves me therefore to let you understand how many sundry sorts of tryal were formerly in use by the allowance of the old law of this realm ; and how the same have been , upon occasion , alter'd and reform'd ; as also to let ye know , wherein the ordinary tryals of our law varie from the tryals by other lawes , and wherein they excel and are of more worth than other tryals . and in regard that treason , murder , and felony , are the highest offences against the commonwealth , and such as the law hath most reason to punish , i shall begin with the tryal of them . the tryal of these crimes then , as it appeareth by glanvil , in the first chapter of his th book , according to the custome of the old law , was this : if there were no proof nor accuser after sundry examinations and inquisitions taken upon the circumstances of the matter suspected ; or if there were any accuser or direct proof , and yet the party accus'd deny'd the same ; then the tryal according to the old law was by wager of battel , if the party accus'd were under the age of years , and sound of his limbs . if he were diseased , or lame , or above the age mention'd , then he was to be try'd per judicium dei , that is to say , per calidum ferrum vel aquam , with these two differences , that if he were a freeholder , he should be put to run bare-foot and bare-legg'd over a certain row of iron barrs laid over burning coals , which if he pass'd thrice without stop or fall , then the law held him acquitted , as one to whom god had shew'd mercy in that behalf ; and therefore it was call'd judicium . if the accused party were of the meaner sort , which glanvil calls by the name of rustici , he was bound to run barefoot through such a number of vessels fill'd with scalding water ; which if he could pass without stop or fall , as before , then the law adjudg'd him free from the guilt . but because the tryal of treason , murder and felony , as well upon appeals as upon indictments , of all sorts of persons of all ranks and degrees , is more amply set forth in a treatise written by mr. justice stamford , entituled , his pleas of the crown , i will not undertake to impair the credit of his learning , by any weak endeavours of my own . there was also a tryal used in writs of right , which was only by wager of battel , according to the custom of the old law ; but is now either by wager of battel , or grand assize , at the election of the tenant . which tryal by grand assize , arose at first from the great clemency of the prince , and his care to avoid the shedding of blood , as glanvil declares in his seventh chapter of his second book ; est autem , saith he , magna assiza regale quoddam beneficium , clementia principis , de consilio procerum , populis indultum . another tryal i read of in the old law , which was of nonage or infancy , which was by the verdict of . men , as appeareth by glanvil , in the . chapter of his th . book , where he produces a special writ of the same : but this is no law at this day , in regard that nonage shall now be tryed by inspection , and full age by a verdict of men . neither do i read in the old law of any other ordinary tryal by any less numbers than : though the old law and the law at this day in attaints , and some other special cases has always permitted a tryal by above the number of . however , the usual and ordinary tryal of matters by the common law of this realm , is for the most part , and alwayes has been by a verdict of men ; which nevertheless has been practised with this circumstance : first the sheriff that empanelleth the inquest , is , or ought to be fairly chosen without favour or affection , by the mutual assent of the noblest , discreetest and most learned men in the realm , as by them thought to be a man in his countrey both indifferent and of good fame , who upon his nomination is admitted by the king , and is also sworn truly and uprightly to execute all things that belong to his office ; as also among the rest to make a true return of able and judicious men upon all such inquests as are by him to be empanell'd , according to the tenour of the writ , all freeholders of the neighbourhood where the fact in issue was committed , or the difference first arose . of which four by the old law were to be such as through their vicinity , could not be thought to be without some knowledg of the fact it self , or of the circumstances of the matter which they are to try . moreover , by the words of the writ they ought not to be such as are of any affinity to the parties to the suit or indictment . nevertheless , now all parties at the time of the inquest taken , have their challenges allow'd them , if there be cause ; so that no person shall be sworn to try any issue , but such as shall be thought indifferent to both parties . neither is the manner of the said tryal private or secret , but openly us'd in the face of the world ; where every person present may understand and judge of the proceedings . neither are the jury allow'd to proceed barely upon their own knowledg , but the parties shall be heard by their counsel ; and witnesses shall be sworn to give in evidence what they can for the proof or disproof of the matter in issue , for the better instruction of the jury , and satisfaction of their consciences . after the evidence given on both sides , they are closely lockt up by one or more keepers , sworn to keep them from all persons , and without meat , drink , fire or candle , till they be agreed of their verdict . so that the ordinary tryal of the law of this realm is grounded upon so many circumstances of equity and indifference for the avoiding all corruption and sinister affection , that greater caution cannot be devis'd by man. which if we well consider , and then compare the tryal of other lawes with our own , we cannot but easily perceive the tryal of our own law to be of far more justice than the tryal of any other human law , in regard the tryal of all other lawes is by witness onely ; which being two in number , are sufficient , so that their credit be good . as for the extent and force of the depositions , it remains for the judge to make his construction and exposition of them . now how many hazards and inconveniences both of life and limb and estates , men may be brought into , whose causes depend upon the testimony of two witnesses , being sworn and examin'd in secret , out of the sight and hearing of the party against whom they are produc'd , who is thereby at a loss how to make his defence ; besides that the examples of holy writ it self sufficiently declare , in the case of jesebel and naboth , and susanna and the elders ; several other authentick stories are full of tragical presidents to the same purpose . briefly then i conclude , that the law of this realm , and the tryal by the same , is not to be amended or reform'd by the wit of man , so that it be rightly and duly executed according to the true intent and meaning of the first institution . but as no law in the world ever had or could have so good and pious an intent , but that the wickedness and perversness of human nature will be still contriving by sundry wayes and means to elude and pervert the course of justice , the same attacques were made to subvert the ordinary tryal of the common law of this realm , at first sincerely and uprightly instituted , and upon advice and mature deliberation admitted , to the onely end that justice and equity might be administred impartially to all sorts and degrees of men : and which was accordingly practiz'd for a long time , till it was interrupted and almost abrogated by the leud and sinister devices of several persons reaping advantages from the encouragement of enormity , particularly mentioned in the preamble of the statute made for reformation of those abuses and punishment of the malefactors relating to it . upon which statute , as being of great and weighty moment , i have here undertaken to make a short discourse . l'estatute de anno xxxv . henrici octavi , cap. vi . touchant l' appearance de jurours per brief de nisi prius . forasmuch as the issues joyned in every action , suit , and demaund between party and party at the common law , are by the lawes of this realm , for the most part tryed and tryable by the verdict of twelve men , wherein is daily seen great delay , partly for lack of appearance of the persons returned to try such issues , the occasion whereof cometh by reason of maintenance , imbracery , sinister labour , and corrupt demeanours ; and partly by reason of the challenges of the parties to the jurie or jurours so returned , to the great costs , charges and hinderance of the parties to the said actions , suits and demands , and to the great delay and hinderance of justice . for reformation whereof , and for the more expedition of justice hereafter to be had in such manner of tryals of issues : be it enacted by the authority of this present parliament , that in every case where such persons as should pass upon the tryal of any issue joyned in any of the kings courts of record , commonly holden at westminster , ought by the law to dispend forty shillings by the year of freehold for term of life : that the writs of venire facias which from and after the first day of april next coming , shall be awarded and directed for the impanelling of such persons as shall try the same issue , shall be in this form , rex &c. precipimus &c. qd ' venire fac ' coram &c. xii liberos & legales homines de visn ' de b. quorum quilibet habeat quadraginta solidat ' terrae tenementorum vel reddit ' per annum ad minus , per quos rei veritas melius sciri poterit . et qui nec &c. and so forth the residue of the said writ after the ancient form . and in every case where it is not requisite , that the persons that shall pass upon the tryal of any issue joyned in any of the kings courts aforesaid , shall dispend forty shillings by the year of freéhold : that then the writs of venire facias , that shall be awarded after the said first day of april , shall be made after the form aforesaid , omitting this clause , quorum quilibet habeat quandraginta solidat , terrae tenementorum vel reddit ' per annum ad minus . and that upon every such writ and writs of venire facias , that shall have the said clause quorum quilibet &c. the sheriff , or other minister or ministers to whom the making of the panel shall appertain shall not retorne in any such panel any person unless he may dispend forty shillings by the year at the least , of estate of freehold , out of ancient demesne within the county where the issue is to be tryed . and also shall return in every such panel upon the same venire facias six sufficient hundredors at the least , if there be so many hundredors within the said hundred where the venew lieth , upon pain to forfeit for every one being returned in any such panel , that cannot dispend forty shillings by the year , as is aforesaid , twenty shillings ; and for every hundredor that shall be omitted in such return of the number aforesaid , twenty shillings . and in every writ of venire facias , wherein the said clause quorom quilibet &c. shall be omitted , the sheriff or other minister or ministers , to whom the making of the panel shall appertain , shall not retorne in any such panel any person , unless he may dispend some lands or tenements of estate of freehold out of antient demesne within the county where the issue is to be tryed ; and also shall return in every such panel upon the same venire facias six sufficient hundredors at the least , if there be so many hundredors within the said hundred where the venew lyeth , upon like pain as is aforesaid . and furthermore be it enacted by the authority aforesaid , that upon every first writ of habeas corpora , or distringas with a nisi prius , delivered of record to the sheriff or other minister or ministers , to whom the making of the return shall appertain , the said sheriff or other minister or ministers shall from and after the said first day of april , return in issues upon every person impanelled and returned upon any such writ , at the least five shillings ; and at the second writ of habeas corpora or distringas with a nisi prius , upon every person impanelled and returned upon any such writ , ten shillings at the least ; and at the third writ of habeas corpora or distringas with a nisi prius that shall be further awarded upon every person impanelled and returned upon any such writ , thirteen shillings four pence ; and upon every writ that shall be further awarded to try any such issue , to double the issues last above specified , until a full iury be sworn , or the process otherwise cessed or determined , upon pain to forfeit , for every retorn to be made contrary to the form aforesaid , five pounds . and for a more speedy tryal of issues to be tryed by the verdict of twelve men hereafter to be had : be it further enacted by the authority aforesaid , that in every such writ of habeas corpora or distringas with a nisi prius , where a full iury shall not appear before the iustices of assize or nisi prius , or else after appearance of a full iury , by challenge of any of the parties , the iury is like to remain untaken for default of iurours : that then the same iustices , upon request made by the party plaintiff or demandant , shall have authority by vertue of this act , to command the sheriff or other minister or ministers , to whom the making of the said return shall appertain , to name and appoint as often as need shall require , so many of such other able persons of the said county then present at the said assizes or nisi prius , as shall make up a full iury ; which persons so to be named and impanelled by such sheriff or other minister or ministers , shall be added to the former panel , and their names annexed to the same ; and that every of the parties shall and may have his or their challenge to the iurours so named , added and annexed to the said former panel by the said sheriff or other minister or ministers , in such wise as if they had beén impanelled upon the venire facias awarded to try the said issue ; and that the said iustices shall and may proceed to the tryal of every such issue with those persons that were before impanelled and returned , and with those newly added and annexed to the said former panel by vertue of this act , in such wise as they might or ought to have done , if all the said iurours had beén returned upon the writ of venire facias awarded to try the said issue ; and that all and every such tryal had after the said first day of april , shall be as good and effectual in the law to all intents , constructions and purposes , as if such tryal had beén had and tryed by twelve of the iurours impanelled and returned upon the writ of venire facias awarded to try such issue : and in case such persons as the said sheriff , minister or ministers , shall name and appoint , as is aforesaid , or any of them , after they shall be called , be present and do not appear , or after his or their appearance do wilfully withdraw him or themselves from the presence of the court : that then such iustices shall and may set such fine upon every such iurour , making default , or wilfully withdrawing himself as is aforesaid , as they shall think good by their discretion ; the said fine to be levied in such manner and form as issues forfeited and lost by iurours of default for their appearance at the common law , have beén accustomed to be levied . and be it further enacted by the authority aforesaid , that where any iury , that shall be returned by the sheriff or other minister or ministers , shall be made full by the commandment of the said iustices by vertue of this present act , that yet nevertheless such persons as were returned in the said panel by the sheriff or other minister or ministers , to try any such issue that shall not appear , but make default , shall lose the issues upon them returned , in such wise as though the iury had remained for default of iurours . provided alway , and be it enacted , that upon a reasonable excuse for the default of appearance of any iurour or iurours sufficiently proved before the iustices of assize or nisi prius , at the day of their appearance by the oaths of two lawful and honest witnesses , that the same iustices shall have authority by their discretions to discharge every such iurour of every such forfeiture of issues upon him returned ; and that the sheriff and sheriffs , or other minister or ministers , having commandment by the said iustices to omit the returning of such issues , as is aforesaid , upon such iurour or iurours , shall be therein discharged of the penalties aforesaid , for the non-returning of the said issues , and that yet notwithstanding the said return to be good and effectual in the law ; any law , vsage , or custom to the contrary notwithstanding . provided also , and be it enacted by the authority aforesaid , that if the said iustices afore whom any iurour should appear in the county , where such issue is to be tryed by vertue of a writ of nisi prius , do not come at the day and place appointed , but that the assize or nisi prius for that time shall be discontinued for not coming of the said iustices , or for any other occasion , other then for default and lack of iurours , that then every one of the said iurours shall be discharged for forfeiting of any issues upon him returned in the same writ ; and the sheriff or other minister or ministers shall be likewise discharged of the penalties of this statute for the non returning of such issues as are before limited in this act ; any article or sentence herein contained to the contrary notwithstanding . and be it also further enacted by the authority aforesaid , that if upon any such writ of habeas corpora or distringas with a nisi prius , issues be returned upon any hundredours , iurour or iurours , by the sheriff or other minister or ministers to whom the execution of the same writ or writs shall appertain , whereas the same hundredours and iurours shall not be lawfully summoned , warned or distrained in that behalf , that then every such sheriff or other minister or ministers aforesaid , shall lose for every such offence so committed , double so much as the said issues returned upon such hundredours or iurours not lawfully summoned , warned or distrained , shall amount unto , the moyety of all which forfeitures contained in this present act , other then the issues to be returned upon the iurours as is aforesaid , shall be to the king our soveraign lord ; and the other half to him that will sue for the same , by action of debt , bill , plaint , or information , in any of the kings competent courts , in which no wager of law , essoine , or protection shall be allowed , nor admitted ; saving to all manner of persons and bodies politick and corporate , their heirs and successors , having lawful right , title and interest to have such issues to be before any such iustices of assize or nisi prius , at any time or times hereafter loft and forfeited , all such right , title and interest , as they or any of them shall or might have had to such issues to be lost and forfeited , as though this act had never been had or made . provided also , that this act nor any thing therein contained , shall not extend to any city or town corporate , or to any sheriff , minister or ministers in the same , for the returning of any inquest or panel to be made and returned of persons inhabiting in the said cities or towns corporate , but that they and every of them shall and may return such persons in every such inquest or panel , as before this time they might and have been accustomed to do , and as this act had never been had or made , so that the same sheriff , minister or ministers return upon such persons as shall be impanelled , like issues as are before mentioned in this act ; any thing in the same contained to the contrary notwithstanding . lectio prima . le mischeif al comen ley devant le fesans de cest estatute , appiert per le preamble de cest estatute ; et pur ceo què les parols d'estatute soient què issues joine in chescun action suit & demand perenter partie & partie al comen ley soient pur le pluis part per la ley del ' terre triable per le verdict de xii homes , les queux trials ount estre delay per le mischeif & abuse que l' estatute reherse ; pur remedy le quel cest estatute fuit fait ; et pur ceo que les parolls d estatute soient general que issues joine in chescun action suit & demand &c. et pur ceo que nul issue poet estre joine , ne ascun triall de ceo ensue mes per original ou action de ceo primerment commence : jeo entend ove vostre pacience primerment de monstre a vous en queux actions suits & demands le triall purrey per cest estatute prendra son effect , et en queux nemy ; et en queux courts tiels actions suits & demands doient estre port & commence ; et en quel lieu le court doiet estre tenus ; et quant l' action avera son commencement en l'un court , et serra mise a son triall en auter court. primerment moy semble que le triall ordeine per cest estatute gist forsque en tiels actions queux averont lour ordinarie triall per duodes homes & non plusors , et ceo forsque en ceux actions en queux le process de venire facias , habeas corpora , & distringas , gist vers les jurours apres issue joine ; et en nuls auters actions . . en appeal de mort d'un home , ou en appeal de robbery , ou rape , les defendants plede rien culpable , moy semble que le trial en ceux actions ne serra solonque l'entendment de cest estatute . . en un praemunire vers un qui suppose , què le defendant ad luy emplede en court christian pur chose touchant le corone determinable per le comen ley , a que le defendant plede rien culpable , moy semble què ceo nest triable deins le purvey de cest estatute . . en warantia chartae le defendant dit què le plaintiff ne fuit tenant del ' terre jour de breif purchase , sur que ils soient al issue , moy semble què ceo est triable solone ; l'entendment de cest estatute . . en ex gravi quaerela port , per que est suppose què la terre fuit devise a j. s. en tail , et le defendant dit que cestuy qui fist le devise fuit seisie en tail del ' terre al temps del devise , sur que ils soient al issue , moy semble què ceo nest triable deins le purvey de cest estatute . . en attaint le tenant del ' terre & le petit jury soient al issue ove le demandant sur le faux serement , moy semble que ceo nest triable solonque l'entendment de cest estatute . . en breif de droit devant les justices nostre seignioress la royne le tenant appiert et plede al grand assise , moy semble que ceo nest triable solonque l'entendment de cest estatute . . un esteant en execution sur estatute merchant port breif de audita querela supposant que le creansor avoit relesse a luy touts maners d'actions , sur que le creansor appiert , et plede nient son fait , moy semble que le plaintiff ne serra aide en son trial per cest estatute . . en breif de recto de rationabili parte devant les justices del ' comen bank l'issue est joine sur le privitie del sank , moy semble que le pl't poiet aver son trial solonque l'entendment de cest estatute nient obstant que il soit breif de droit . . en assise port devant les justices d'assise deins le countie de middlesex le tenant plede un forrein release sur que l'assise est adjourne en bank , et la ils soient al issue sur le release , moy semble que le demandant poiet aver son triall solonque l'entendment de cest estatute . . en breif de customs & services en le debet le demandant fist son demand d'aver homage , fealtie suit al court , & . soulz de rent , le tenant confesse le tenure del ' homage , et travers ' touts les auters services , sur quel ils soient al' issue , moy semble que le plaintiff serra aid en son trial per cest estatute . . en breif de customs & services le demandant demand ' d'aver les services de fealtie , suit al court , & soulz de rent , et le tenant plede al issue pur touts les services , moy semble què le plaintiff ne serra aid en son trial per cest estatute . . en iuris vtrum port per le parson de dale devant les justices del comen bank , le defendant appiert et prie que les points del breif soient enquire , moy semble que le plaintiff ne serra aid en son trial per cest estatute . quaere . . en breif de droit sur disclaimer le demandant & le tenant soient al issue sur le tenure , moy semble que le plaintiff ne serra aid en son trial solonque l'entendment de cest estatute . . tenant per le curtesy port breif de customs & services vers un auter qui est tenant en fee , et ils soient al issue , moy semble que le plaintiff poiet estre aide en son trial per cest estatute . . en un attachment sur ne injuste vexes perenter le seignior & le tenant le count est d'encroachment des services per le seignior , et ils soient al issue sur le droit des services , moy semble que le tenant ne serra aide en son trial per cest estatute . . en decies tantum les plaintiff & defendant soient al issue sur le prisel des deniers , moy semble que le plaintiff ne serra aide en son trial per cest estatute , et uncore il est triable per verdict de xii . . en breif de champerty per que est suppose que le defendant avereit purchase certen terre puis champerty , a que le defendant plede rein culpable , moy semble que le plaintiff poiet estre aide en son trial accordant a les parolls de cest estatute . . en quo minus port per fermer le roy , ou per auter person que est accomptable al roy , le defendant plede al issue , moy semble que le plaintiff poiet estre aide en son triall accordant a cest estatute . . en quod ei deforceat le tenant appiert et monstre son title per que il reccon destre eins per un done en tail fait per j. s. in que ils soient al issue , moy semble que le demandant poiet estre aide en son trial per cest estatute . . en parco fracto le defendant justifie l'enfriender del ' pound per vertue d'un replevin , et le plaintiff maintaine que il ceo fist de son tort demesne &c. sur que ils soient al issue , et al jour del ' enquest en bank ascuns fueront jurès , et auters treits per challenge , per que l'enquest remaine pur default des jurours , moy semble que le pl't en cest case failera de son trial solonque l'entendment de cest estatute . quaere . . en assise de mordancestor port en le comen bank , le tenant appiert et prie que les points del breif soient enquires , moy semble que le plaintiff ne poiet aver son triall solonque l'entendment de cest estatute . . en certificate d'assise sue en le comen bank les parties soient al issue sur un release portant date en auter county que lou le terre est , moy semble què le plaintiff poiet aver son triall accordant a cest estatute . . en appeal de mayhem le defendant plede que le male que le plaintiff avoit fuit de son assaut demesne , & en son defenz , et le plaintiff dit de son tort demesne sanz tiel cause , sur que ils soient al issue , moy semble que le plaintiff avera nisi prius , et uncore il ne serra aide en son triall per cest estatute : mes en breif de trans ' pur tiel maime sur tiel issue le plaintiff poiet estre aide en son triall per cest estatute . quaere . . un abbe qui recover en breif de cessavit sue quale ius devant mesme les justices d'enquirer de son droit , moy semble que le breif de nisi prius poiet estre bien agard pur l'abbe en cest case , et uncore , moy semble que il navera son triall en ceo solonque l'entendment de cest estatute . . en attachment sur prohibition le defendant appiert et plede rien culpable sur que nisi prius est agard , moy semble que le plaintiff poet aver son triall solonque l'entendment de cest estatute . . en breif d'estrepement port per un qui fuit plaintiff en scire facias d'executer fine vers le tenant ' en quel il plede al issue , moy semble què le plaintiff poiet aver son triall en cest action accordant a les parolls de cest estatute . quaere . . en breif de disceit port de ceo que le defendant avoit fauxment gest un protection en ley d'un action que le plaintiff avoit pendant vers luy , en quel ils soient al issue , moy semble que le plaintiff ne serra aide en son triall per cest estatute . quaere . . en action sur l'estatute de labourers le defendant dit que il luy reteine esteant vagrant , sur que ils soient al issue , moy semble que le plaintiff poiet aver son triall solonque l'entendment de cest estatute . . en forger de faux faits le defendant plede rien culpable , moy semble que le plaintiff poet aver son trial solonque l'entendment de cest estatute . . en curia claudenda le defendant dit que le close prochein adjoinant al close a que le plaintiff claime l'enclosure est le franktenement de j. s. et nemy del ' defendant , sur quel ils soient al issue , moy semble que le plaintiff serra aide en son triall sur cest estatute . . en nuper obiit per un copercener vers un auter que dit què puis le mort de lour ancestor un j.s. fuit seisie del ' terre &c. et de ceo enfeoffe le plaintiff , sur quel ils soient al issue , moy semble que le plaintiff , poiet aver son trial per cest estatute . . en breif de faux iugement en le comen bank le defendant dit que le record est auter que est certifie , sur que ils soient al issue , moy semble que ceo serra trie per pais de xii homes , uncore le plaintiff ne serra aide en son triall per cest estatute . quaere . . en brief d'error pur reverser judgment done en precipe quod reddat le plaintiff assigne pur error que le tenant vers que le recovery fuit ewe fuit mort al temps del ' judgment done , sur que ils soient al issue , moy semble que le plaintiff en cest case poet aver son trial per cest estatute . quaere . . sur office trove per diem clausit extremum , est trove , que j. s. tenust le mannor de dale del ' roy en cheif , lou il ceo tenust d'un auter en socage , sur que l'heire mitte eins son travers , moy semble que ceo est triable al nisi prius per verdict de xii homes ; et uncore l'heire ne serra aide en son triall per cest estatute . . en quare incumbravit vers l'evesque de londres , il plede , que il ne incumbr ' pas , moy semble que ceo est triable per pais solonque l'entendment de cest estatute . . en breif de contra formam feoffamenti les parties soient al issue sur le quantity des services , moy semble que ceo poet estre trie solonque l'entendment de cest estatute . . en praecipe in capite l'issue est joine sur non-tenure , et al jour d'enquest venust j. s. et surmise al court , que le terre en demand est tenus de luy & nemy del ' roy en cheif ; et deliver as justices un special breif d'enquirer de ceo , sur que les justices agard que cest matter serra enquire per mesme l'enquest , sur que nisi prius est agard pur le trial de ceo , moy semble que le plaintiff en le primer breif serra aide en son trial per cest estatute , mes nemy j. s. quaere . . en disceit vers un auter de ceo que le defendant avoit forge un estatute per quel le plaintiff serroit tenus a luy en c. li. le defendant plede rien culpable , le plaintiff serra aide en son trial per cest estatute . . en action sur le case port per un des justices del ' comen bank , de ceo que le defendant avoit luy sclander overtment en le court del ' comen bank devant touts les justices , le defendant plede rien culpable , moy semble que ceo nest triable solonque l'entendment de cest estatute . . en action sur l'estatute que voet , que nul forester ne arresta ascun home deins le forrest si non que il luy trove ove le manner , a que le defendant dit , que il luy trove ove le manner &c. sur que ils soient al issue , moy semble que le plaintiff en ceo case poet aver son triall solonque l'entendment de cest estatute . et moy semble que cest estatute est cy bien destre entende des judicials & actions & demands come des originals si ascun issue soit joine en eux que est triable per nisi prius et per le verdict de xii homes . . si en scire facias d'executer un fine le tenant plede non-tenure ou seisin en le demand ' ou auter plee sur que tiel issue poet estre joine quel est triable per pais , moy semble que le plaintiff avera son trial en ceo solonque l'entendment de cest estatute . les parolls del ' statute sont des issues joine en ascun courts le roy de record comenment tenus a westminster , moy semble que ceo est destre entend en l'un de ceux courts scilicet le chancery , le bank le roy , le comen bank , & l' exchequer , et nemy d' ascun auters courts . . si ascun action soit port per ascun des clerks del ' chancery vers un auter , et ils plede al issue en mesme le court , ceo poet estre bien trie al nisi prius solonque l'entendment de cest estatute , mes nemy per breif de nisi prius hors de mesme le court. . en mesme le manner est si ascun qui ad privilege en l'excheker sue auter la per bill ou auterment , sur que issue est joine la que est triable per pais de xii homes , ceo serra trie per nisi prius hors de cest court , en quel le plaintiff poet aver son triall solonque l'entendment de cest estatute . cest estatute nest tantsolement destre entende de tiels actions & suits que soient primerment commence en un des dits courts , car en ascun case si l action soit commence en auter court , uncore serra trie solonque l'entendment de cest estatute , si l' issue que est d'estre trie soit joine en ascun des dits courts . . en breif de droit port en londres , ou praecipe quod reddat deins le county palatine lou le tenant vouche foreiner a garantie , le record serra mise en comen bank , et process la fait vers le vouchee , et sil appiert et counterplede le lieu , sur que ils soient al issue , ceo serra trie solonque l'entendment de cest estatute . lou l' estatute parle des issues joine en les courts le roy comenment te●us a westminster , uncore nest de necessity que l' issue doit estre joine en un des dits courts al westminster et nemy alyours ; car si les courts avandits soient remove de westminster al ascun auter lieu pur ascun cause per adjornement , on que les courts del ' bank le roy et le chancery ensueront le person le roy en ascun lieu deins le royalme , et l issue que est triable per nisi prius solonque l'entendment de cest estatute soit joine perenter partie & partie en ascun lieu ou ils soient hors de westminster ceux issues serra trie solonque l'entendment de cest estatute cybien sils ussoient estre joine cy al westminster . . si le court del ' comen bank ou bank le roy soit pur ascun cause remove deins le county de lincolne , en assise la port devant les justices les parties soient al issue la sur un forrein release , et puis les courts devant le triall de ceo soient remove al westminster , moy semble que le plaintiff poet aver nisi prius , et aver son trial solonque l'entendment de cest estatute . mes si l'issue ussoit estre joine sur le seisin & disseisin , moy semble que le plaintiff en ceo case poet aver nisi prius , mes n'avera son triall en ceo solonque l'entendment de cest estatute . et issint jeo ay monstre a vous mon opinion sur l un branch de cest estatute de quels actions suits & demands cest estatute est d'estre entende , et en queux courts , et en quel lieu les actions ou les issues doient estre commence et joine . lectio secunda . en mon darrein lecture jeo aye monstre a vous en queux actions , suits & demands le triall purvey per cest estatute prendra son effect , et en queux nemy ; et en queux courts tiels actions suits & demands doient estre port et commence , et en quel lieu le court doiet estre tenus , quant l' action serroit commence , et quant l' action commencera en l'un court & serra mise a son triall en auter court. et ore jeo entende ove vostre pacience de monstre a vous sur ceux parolls d' estatute des issues joine enter partie & partie , enter queux persons & parties le triall purvey per cest estatute prendra effect ; et que serra dit partie deins le purvey de cest estatute , et que nemy . et jeo entende que ceux parols d' estatute enter partie & partie serra tantsolement entende des comen persons , et nemy perenter le roy & ascun auter person , ne ou le roy joine ove ascun auter en ascun action le quel il poet per son release ou pardon discharge devant l' action port . . et pur ceo si le roy joine ove ascun auter en ascun popular action sur ascun estatute penal vers un auter , moy semble que nul d'eux est ascun partie deins le purvey de cest estatute . . si nostre jadis roy h. viii . qui fuit marrie al royne que fuit seisie del ' terre devant le coverture en quel un estranger fist trespass , en ascun action port vers luy durant le vie le roy nul d'eux serra dit partie deins le purvey de cest estatute ; mes si la royne , apres le mort le roy , ust port action pur cest trespass , la royne & le trespassor ussoient estre ambidieux parties deins le purvey de cest estatute . . si ascun entrude sur ascun des possessions la royne que ore est , el ( durant le vie le roy , ne apres son decease , si el luy survesquit , en ascun action port per luy pur punisher ceo ) ne serra dit partie deins le purvey de cest estatute . . en detinue de chartres le defendant dit , que ceux fueront liverès a luy per le plaintiff sur le condition , que si le plaintiff paiera al j. s. xl . s. al feast del ' pentecost darrein passe que adonque serra deliver a luy , et si'l fault de paiement que donque serra deliver al dit j. s. le quel j. s. vient per garnishment , et dit que les deniers ne fueront paie &c. le plaintiff averre que cy , sur que ils soient al issue , moy semble que j. s. est partie deins le purvey de cest estatute , et uncore il nest partie al original . . en detinue de chartres le defendant dit , que fueront liverès a luy per le plaintiff & per a. b. sur condition &c. le quel a. b. venust per garnishment , et dit que les chartres fueront liverès per luy mesme solement al defendant &c. sans ceo que ils fueront liverès per luy et per le plaintiff sur condition , sur que issue est prise , moy semble què a.b. nest partie deins le purvey de cest estatute . . en precipe quod reddat cestuy en reversion est receive pur default del ' tenant pur vie , et plede release del ' demandant fait al tenant pur vie sur que ils soient al issue , moy semble què le tenant per receit est partie deins le purvey de cest estatute . . deux coparceners ount cause d'action de formedon l'un d'eux entermarrie ove un alien , et le baron & feme & l'auter parcener portont formedon accordant a lour droit , moy semble què le parcener nient marrie est partie deins le purvey de cest estatute , mes le baron & feme nemy . . en detinue de chartres le defendant dit , què fueront bailès a luy per le plaintiff et deux auters sur condition , et prie garnishment , le vicount retorne què l'un est garnie , et l'auter nichil &c. cestuy qui fuit retorne garnie appiert , moy semble què il est partie deins cest estatute . . en detinue garnishment fuit prie vers deux queux soient retorne garnie , sur què l'un appiert , et l'auter fist default , moy semble què cestuy qui appiert est partie deins le purvey de cest estatute . . en detinue garnishment est prie vers deux queux soient retorne l'un garnie , et què l'auter est mort , cestuy qui fuit garnie appiert , moy semble què il en cest case est partie deins le purvey de cest estatute . . a. b. & c. d. deliveront un fait de feoffment ( containant condition , per que a.b. ad enfooffe c.d. del ' mannor de dale ) a un j.s. safement de garder & redeliver al a.b. sur certeins conditions destre performès , auterment il serra reliver a c. d. et puis j. s. enfreint le seale del ' dit fait per casualtie , et puis a. b. port breif de detinue pur mesme le fait , et j. s. venust et monstre al court le feoffment ove le seale enfreint , et prie garnishment vers c. d. moy semble què c. d. en cest case , ne poet estre dit partie deins le purvey de cest estatute . . seignior & tenant per fealtie & s. de rent , le seignior per son bailiff distraine pur rent arreare , sur que le tenant sue replevin , et le bailiff fist cognizance come bailiff al seignior , a que le seignior agree , et joine & avowa le prisel per son bailiff , moy semble que le seignior est partie deins le purvey de cost estatute , et le bailiff nemy . . est trove per un office què a.b. al jour de son mort tenus le mannor de dale del ' roy en cheif , lou il ceo tenust d'un auter en socage , et j.s. esteant l'heire d'a.b. travers l'office , et moy semble que j. s. nest partie deins le purvey de cest estatute . . a. b. & c. d. tenants en comen del ' mannor de dale a que un advowson est appendant que est tenus del ' roy en cheif , a. b. morust ( son heire deins age ) le roy seisist , sur office trove , et grant proximam advocationem al j.s. l'esglise devient void , l'ordinary present de son tort j.s. et c. d. port quare impedit vers l'ordinary , moy semble què j.s. & c.d. soient parties deins le purvey de cest estatute ; mes si le roy & c. d. ount joine en quare impedit c. d. nust estre partie deins le purvey de cest estatute . . si le roy grant al abbe de westminster per les letters patents què les moignes del ' dit abbie averont touts les temporalties & touts les advowsons queux appertaine al abbie durant le vacation del ' abbie , et le abbe morust , advowson devient voide , les moignes present , uncore si estranger present , et ils porteront quare impedit de ceo , ils soient parties deins le purvey de cest estatute . . en quod ef deforceat le tenant maintaine le title de son primer breif per un done en frankmarriage , sur que le demandant vouche , et le vouchee enter en le garrantie , et plede le release del ' recoveror , en barre , sur que ils soient al issue ; moy semble què le recoveror ne le vouchee soient ascun parties deins le purvey de cest estatute . . en quod ei deforceat sur title fait per le tenant , le demandant vouche , et le vouchee appiert , et counterplede le lieu , sur que ils soient al issue ; moy semble què le demandant & le vouchee sont ambideux parties deins le purvey de cest estatute . . en precipe quod reddat le tenant vouche , et le vouchee appiert , et counterplede le lieu , sur que ils soient al issue , moy semble què le vouchee et le tenant soient parties deins le purvey de cest estatute . . en precipe quod reddat le tenant vouch j. s. qui enter en le garrantie per process , et vouch ouster un estranger , qui appiert per process , et enter en le garrantie come un qui ad reins per discent , et j. s. maintaine què il ad assets per discent deins le countie de c. sur que ils soient al issue ; moy semble què j. s. & le second vouchee soient parties deins le purvey de cest estatute . . en certificate d'assise devant les justices del ' bank , un issue est joine enter les parties , que est triable per assise , et pur ceo que le terre est en un auter countie que lou le breif est port nisi prius est agard ; moy semble què le plaintiff ne le defendant soient parties deins le purvey de cest estatute . . en dett per un alien vers un denison , ils soient al issue , et venire facias est agard ; moy semble què nul d'eux est partie deins le purvey de cest estatute . mesme le ley en breif de trespass ou auter action perenter denison & alien come jeo intende . . en breif de dett per un alien vers un auter alien , en que ils soient al issue ; moy semble què ils deux soient parties deins le purvey de cest estatute . . en dett port per un alien vers un denison , et pendant le breif le plaintiff est fait denison , et puis soient al issue ; moy semble què ils deux soient parties deins le purvey de cest estatute . . en breif de covenant port per un denison vers un alien & un denison , en quel ils soient al issue ; moy semble què les deux denisons soient parties deins le purvey de cest estatute : mes l'alien nest my partie deins le purvey de cest estatute : . en dett port per un alien vers un auter alien , et pendant le breif le plaintiff est fait denison , et puis soient al issue sur que un venire facias solonque les parolls de cest estatute est retorne ; moy semble què ambideux soient parties deins le purvey de cest estatute . mesme le ley est si le defendant ust estre fait denison pendant le plea. . en dett vers trois executors , deux appieront et plede le release del ' plaintiff , sur que ils soient al issue , et l'auter vient al exigent , et plede què est un auter executor qui ad administer nient nosmè en le breif ; moy semble què le plaintiff & les deux executors qui primes plede soient parties deins le purvey de cest estatute , et l'auter executor nest partie deins le purvey de cest estatute . . le roy grant per ses letters patents al major & communaltie de dale , què quandocunque què ascuns del ' communaltie soient emplede pur ascun contract per ascun de eux fait touchant merchandise , et il soy miste en enquest de ceo , que la moietie del ' dit enquest serra del ' dit communaltie , et un del ' communaltie est emplede pur chose touchant merchandise , qui plede al issue , et un venire facias est agard accordant a lour grant ; moy semble què le plaintiff ne le defendant ne soient parties deins le purvey de cest estatute . . le pape per ses bulles enhable un moigne d'estre parson d'esglise de dale , et d'aver tout ceo que appiert a tiel esglise , et auxy de prender de chescun auter donant terres ou tenements al endowment de son esglise , et puis terre est a luy done per licence le roy per le nosme de parson de dale & a ses successors , sur quel possession un estranger enter et fist trespass , sur que il port breif de trespass ; moy semble què le parson de dale est partie deins le purvey de cest estatute . . si le roy per les letters patents enhable un moigne et luy fait son fermour del ' mannor dale , et il per le nosme de j.s. moigne port breif de trespass vers estranger pur trespass fait sur cest terre ; moy semble què il est partie deins le purvey de cest estatute . . feme que ad baron qui est attaint et abjure le realme purchase terre en que un estranger fist trespass , et el port breif de trespass ; moy semble que el est partie deins le purvey de cest estatute . . un prior , qui est datife & removeable , et de temps d'ont memorie ad use de suer & destre sue per tiel nosme , il port breif de trespass en quel issue est joine , et puis est remove et un auter enstallè ; moy semble que cest novel prior est partie a cest issue deins le purvey de cest estatute . le roy grant le farme d'un ville ove un market deins ceo al un moigne d'estre tenus per deux jours en le semayne rendrant x li. per annum , et puis le roy grant al j. s. & a ses heires un market d'estre tenus deins lour ville de dale a mesme les jours que l'auter market serra tenus , ove ceux parolls issint que ne soit nusance del ' prochein market , et le moigne sue scire facias de reverser les darrein letters patents , en quel ils soient al issue sur le nusance ; moy semble que le moigne est partie deins le pvrvey de cest estatute . . un moigne est vicar d'esglise de dale perpetual et nient removeable , et ad use de pleder & d'estre emplede per tiel nosme de vicar &c. et il port breif de trespass fait en son glebe , en quel issue est joine ; moy semble què le moigne est partie deins le purvey de cest estatute . mes si le vicar morust et auter est fait vicar , moy semble què le darrein vicar nest partie a cest issue deins le purvey de cest estatute . . home qui est endette enter en religion , et le dettee port breif de dett vers l'abbe & le commoigne qui fuit endettè , et ils pledent al issue ; moy semble què l'abbe & le commoigne soient parties deins le purvey de cest estatute . . en trespass port per trois d'ont l'un est un moigne , et ils pledent al issue per attorney ; moy semble què le moigne & touts auters soient parties deins le purvey de cest estatute . . en trespass de battery per un abbe & son commoigne de battery fait al commoigne , en quel le defendant plede al issue ; moy semble que l'abbe & le commoigne soient parties deins le purvey de cest estatute . . en action sur l'estatute de anno octavo henrici sexti lou les parolls del ' breif soient tam pro domino rege quam pro seipso , et le defendant plede al issue ; moy semble què le plaintiff & le defendant soient parties deins le purvey de cest estatute . en mesme le manner est en action port sur l'estatute de r. . . en breif de conspiracy port vers baron & feme , et ils plede al issue ; moy semble que ils ne soient parties deins le purvey de cest estatute . . en breif d'accompt vers deux l'un appiert & plede al issue , et process continue vers l'auter , sur que il est utlage , et vient eins sur capias utlegatum , a quel temps le plaintiff esteant present , il plede misnomer d'avoider l'utlary , et le plaintiff maintaine son nosme accordant al breif , sur que ils soient al issue ; moy semble que le person utlage en ceo case nest partie deins le purvey de cest estatute . . en replevin aide fuit prie d'un infant & process fait vers luy d'estre view , sur que il appiert , et fuit adjudge de plein age per agarde del ' court , per que il joine en aide maintenant , et plede al issue ove le plaintiff ; moy semble què le priee nest partie deins le purvey de cest estatute . . en quod ei deforceat le tenant maintaine le title de son breif , er le plaintiff vouch , et le vouchee enter en le garranty , savant a luy son cause d'action , et vouch ouster j. s. qui appiert et counterplede le garrantie , sur que ils soient al issue ; moy semble què ambideux vouchers ne soient parties deins le purvey de cest estatute . . sur issue joine en precipe in capite , et l'enquest ceo empanel , j.s. vient et surmise al court que la terre est tenus de luy et nemy del ' roy en cheif , et deliver un especial breif al' justices d'enquirer de ceo , per que ils agard què ceo serra trie per primer enquest , sur que un nisi prius est agard ; moy semble que j. s. est partie deins le purvey de cest estatute . . en precipe quod reddat le demandant ( pendant le plea ) fist attorney & devient lunatike ou de non sane memorie , et apres un issues est joine perenter luy & le tenant ; moy semble què le plaintiff est partie deins le purvey de cest estatute . en mesme le manner est si le tenant devient de non sane memory ou lunatike devant le issue joine ou apres . . en precipe quod reddat le demandant ( pendant le plea ) est excomenge de que le tenant ne prist advantage mes plede al issue ; moy semble que ambideux soient parties deins le purvey de cest estatute . . en breif de dett ( pendant le plea ) le plaintiff est utlage , et puis issue est joine perenter luy & le defendant , et nisi prius est agard ; moy semble què le plaintiff est partie deins le purvey de cest estatute . . en precipe quod reddat port per un clerk convict , le tenant appiert , et soient al issue ; moy semble que le plaintiff est partie deins le purvey de cest estatute . en mesme le manner est de clerk attaint come jeo entende . lectio tercia . en mes auters lectures jeo aie monstre a vous en queux actions suits & demands le triall purvey per cest estatute prendera son effect , et en queux nemy ; et en queux courts tiels actions suits & demands doient estre portès & commencès ; et en quel lieu le court doiet estre tenus ; quant l' action serra commence , et quant l' action commencera en un court , et serra mise a son triall en auter court ; e● enter queux persons & parties le triall purvey per cest estatute prendera son effect ; et que serra dit parties deins le purvey de cest estanute , & que nemy : et ore jeo entende de monstre a vous queux issues joine serra trie solonque l'entendment de cest estatute , et queux nemy ; de queux issues le plaintiff ou demandant poet estre oustè de son triall ordeine per cest estatute , & de queux nemy . et moy semble què nul issue est triable deins le purvey de cest estatute mes tiel que est triable per breve de nisi prius , et auxy per pais de xii homes tantsolement , et non per plusors . . en breif de trespass pur depaster ove avers en le more de sale en le county de lincolne , le defendant justifie per reason que il claime common appendant a son franktenement en le countie de essex ; l'issue est joine sur seisin de cest common : moy semble què cest issue nest triable solonque l'entendment de cest estatute . . en un ne injustie vexes en le comen bank le seignior counta vers le tenant coment il tenust le terre de luy per fealty & s. de rent ; et le tenant plede en barr le confirmation del ' ancestor le seignior a tener per fealty tantum , sur que ils soient al issue ; moy semble que ceo est triable solonque l'entendment de cest estatute . mes si l'issue ussoit estre joine sur le droit des services ceo nest triable accordant a cest estatute . . un port breif de dett per le nosme de j.s. de dale sur especialty vers j.s. et le plaintiff counta què le defendant per son fait al dale avandit conust luy d'estre tenus al plaintiff &c. et le defendant plede nient son fait , sur que l'issue est joine ; moy semble què cest issue nest triable solonque l'entendment de cest estatute . . en breif de trespass pur le succider d'un arber que fuit cressant en le confine de deux counties que soient adjoynants , le defendant plede rien culpable ; moy semble què ceo serra trie solonque l'entendment de cest estatute . . en trespass pur prisel de charents de frument al dale deins le countie de k. le defendant justifie per force d'un done d'eux fait al a. b. et le plaintiff dit que puis le dit done le defendant eux a luy redone & al a. b. deins le countie de h. et le defendant maintaine son barre , & travers le darrein done , sur que ils fuere al issue ; moy semble que cest issue nest triable solonque l'entendment de cest estatute . . en ravishment de gard le plaintiff counta què le pere l'infant tenust de luy le mannor de a. en le countie de g. per service de chivaler per que il fuit seisie del ' gard tanque le defendant luy ravish , a que le defendant dit , que le pere l'infant tenust de luy le mannor de b. en le countie de w. per eigne feoffment , per que il prist le gard ; a que le plaintiff dit , què il tenust le dit mannor de a. en le countie de b. de luy per eigne feoffment , et què il tenust le mannor de b. en le countie de w. del ' defendant prist ; sur que ils soient al issue ; moy semble que cest issue nest triable solonque l'entendment de cest estatute . quaere . . en dett sur obligation le defendant plede un release portant date devant le obligation que fuit a luy primerment deliver per le plaintiff puis le dit obligation al k. deins le countie de b. al que le plaintiff dit què cest release fuit a luy primerment deliver al b. deins le countie de c. mesme le jour que il port date , sans ceo què il fuit a luy primerment deliver al k. deins le countie de b. prist ; moy semble que cest issue est triable solonque l'entendment de cest estatute . . en dett sur obligation le defendant plede release deliver a luy per le plaintiff al dale puis le dit obligation , al que le plaintiff dit , que cest release fuit per luy primerment deliver al defendant al h. deins le countie de c. &c. et le defendant dit que le release fuit a luy primerment deliver per le plaintiff al dale puis le dit obligation , sans ceo què il fuit a luy primerment deliver al h. deins le countie de c. prist ; moy semble què cest issue nest triable solonque l'entendment de cest estatute . . en quare impedit d'un disturbance de presenter al esglise de dale deins le countie de middlesex , le plaintiff recover & ad breif al evesque , et ceo deliver al evesque al sale deins le countie de essex , le quel la il refuse d'admitter , son clerk , sur que le plaintiff port quare non admisit vers mesme l'evesque deins le countie de middlesex , et counta del ' refusal en le lieu avandit , sur que issue est joine ; moy semble què le plaintiff en cest case poet estre ouste de son triall purvey per cest estatute . . home port brief de droit d'advowson , et pendant le plea , il sue ne admittas al evesque , et ceo nient obstant l'evesque encombre , l'esglise per enduction d'un encombent , et puis le plaintiff ad judgment de recover , et port breif de quare incumbravit vers l'evesque , qui plede que il ne incombra pas prist ; moy semble que le demandant poet estre ouste de son trial ordeine per cest estatute . . l'abbe de westminster esteant parson empersonee d'esglise de dale en droit de son meason , un estranger luy disseisist de parcel de son glebe , et l'abbe morust & le successor de mesme l'abbe port brief d'entre en le quibus per le nosme del ' abbe de westminster ; et counta coment le defendant en temps son predecessor a tort ad entre en le dit terre parcel del ' glebe del ' rectory avandit , de que il fuit seisie come parson impersonee ; a le que le defendant plede què il n'entra pas &c. sur que ils soient al issue ; moy semble que l'abbe poet estre ouste de son trial ordeine per cest estatute . . l'evesque de sarum ( qui ad le rectory de dale impropriate al son evesquerie ) sans l'assent del ' chapiter de ceo enfeoffe un estranger et morust , le successor port breif de sine assensu capituli come evesque vers l'alienee , en quel le tenant plede al issue ; moy semble que l'evesque poet estre ouste de son trial purvey per cest estatute . . tenant per service de chivaler ad issue deux files , l'un de plein age , et l'auter deins age , et morust ; le seignior seisist la puisne et enter en le terre et fist wast ; l'eigne soer & la puisne esteant deins age portont breif de wast vers le seignior , et il plede nul wast fait ; moy semble què les plaintiff's poient estre oustès de lour trial ordeine per cest estatute . . sur un grand cape le tenant appiert et plede què il ne fuit summon solonque la ley del ' terre , al quel le plaintiff dit , què il fuit summon solonque la ley del ' terre , prist ; moy semble que cest issue nest triable solonque l'entendment de cest estatute . mes s'il dit que il fuit imprison ou disturbe per crient endue et issue soit prise sur ceo , moy semble que ceo est triable accordant al cest estatute . . en dower le tenant plede què il fuit touts temps prist de render dower et le demandant dit que ne , sur que ils soient al issue , le demandant avera judgment de recover sa dower maintenant et uncore cest issue prise perenter luy & le tenant serra trie solonque l'entendment de cest estatute . . en breif de disceit d'avoider un recovery cestuy qui recovera plede què ceux qui fueront les summoners fueront auters persons , sur que ils soient al issue ; moy semble que cest issue est triable solonque le purvey de cest estatute . . en breif de disceit port vers cestuy qui recovera & vers un auter come tenant al terre , et le tenant plede jointenancy ove un auter , sur que ils soient al issue ; moy semble que cest issue est triable accordant al cest estatute . . en precipe quod reddat vers le major & communalty de dale ils appeere al jour del ' grand cape , et diont que ils ne fueront summon solonque la ley del ' terre , sur que ils soient al issue ; moy semble què cest issue est triable solonque l'entendment de cest estatute . . en attaint un del ' petit jury plede le release del ' plaintiff en barr , al que le desendant plede nient son fait , sur que ils soient al issue ; moy semble que ceo est triable per pais , et uncore nest triable solonque l'entent de cest estatute . quaere . . en mordancestor le second vouchee counterplede le fait del'lieu son ancestor per que le garrantie fuit fait , que port date en mesme le countie ou les tenements soient , sur que ils soient al issue ; moy semble que cest issue est triable solonque l'entendment de cest estatute , nient obstant què soiet triable en mesme le countie ou le terre est . . en breif de droit le tenant plede le release del ' ancestor collateral le demandant ove garrantie en barr , sur que ils soient al issue ; moy semble que ceo nest triable solonque l'entendment de cest estatute . . en breif d'ayel le tenant plede , le feoffment d'ancestor le demandant en que testymoynes soient nosmès , sur que ils soient al issue et process prie vers testymoynes ; moy semble què cest issue ove les testymoynes est triable solonque l'entendment de cest estatute . . en breif d'entre sur disseisin port per un come heir , le tenant plede , le fait son ancestor en barr , en quel un est nosme testymoyne qui est utlage , sur que ils soient al issue ; moy semble que cest issue est triable solonque l'entendment de cest estatute . issint est si les testymoynes nosme en le fait soient morts . . en iuris utrum le tenant plede le release del ' plaintiff nosme en barr , sur que ils soient al issue ; moy semble què ceo nest triable accordant al cest estatute , et uncore il serra trie per nisi prius & per verdict de xii homes . . en assise de mordancestor les parties soient al issue sur un darrein seisin ; moy semble què ceo est triable per nisi prius , mes nemy solonque l'entendment de cest estatute . . en breif de droit le tenant vouch et le vouchee appiert et counterplede le garrantie , sur que ils soient al issue ; moy semble que ceo est triable solonque l'entendment de cest estatute . . al grand cape en precipe quod reddat le tenant appiert , et dit què al temps del ' defaint il fuit deins age , et ore il est de plein age , sur que ils soient al issue fil fuit deins age al temps del ' default , ou nemy ; moy semble que ceo est triable accordant al purvey de cest estatute . . en faux iudgment le defendant dit què le record est auter que est certifie , sur que ils soient al issue ; moy semble que ceo est triable per verdict de xii homes , et uncore nest triable accordant al cest estatute . . vn del ' clerks d'exchequer est emplede en bank le roy per bill , et il plede special custome què touts les clerks d'exchequer ount use destre solement emplede en le court d'exchequer , sur quel custome issue est joine ; moy semble que cest issue est triable per pais solonque l'entendment de cest estatute . . en bill de dett port en le comen bank vers gardein del ' fleet sur escape le defendant dit què il touts temps en tiel case use destre emplede per breif , et nemy per bill , sur que issue est joine ; moy semble que cest issue nest triable solonque l'entendment de cest estatute . . en breif de dett issue est joine sur nul tiel ville , deins mesme le countie ; moy semble que cest issue nest triable solonque l'entendment de cest estatute . . en quare impedit le plaintiff fait son title come al' advowson appendant al son mannor de dale en auter countie què lou l'esglise est , le defendant fist son title al ceo come al advowson en grosse , sans ceo que il fuit appendant ; sur que ils soient al issue : moy semble que cest issue nest triable solonque l'entendment de cest estatute . . en precipe quod reddat de dedem acris terre en dale en le county de middlesex , le tenant dit que le ville de dale est en le county de essex et nemy en le county de middlesex , sur que ils soient al issue , moy semble que ceo nest triable solonque l'entendment de cest estatute . . en breif de dower le tenant dit què le baron le demandant est uncore en plein vie al dale deins mesme le county ou le breif est port , sur que ils soient al issue ; moy semble que ceo nest solonque l'entendmeht de cest estatute . mes en cui in vita si tiel issue soit joine ; moy semble que ceo poet estre trie solonque l'entendment de cest estatute . . en breif des customes & services le demandant demande d'●ver les services de homage , fea●●e & rent , et le tenant confesse le tenure del'homage , et plede al issue pur les auters services ; moy semble que cest issue poet estre trie solonque l'entendment de cest estatute . mes si le tenant ussoit plede al issue pur touts les services , moy semble que ceo ne serra trie solonque l'entendment de cest estatute . . en replevin dependant dit què le property des avers al temps del ' prisel fuit a luy et nemy al plaintiff , sur que ils soient al issue ; moy semble què cest issue ne poet estre trie solonque l'entendment de cest estatute . . en action port sur un private & especial estatute vers un auter , le defendant appiert et plede que nest ascun tiel estatute ; moy semble què ceo ne serra trie solonque l'entendment de cest estatute . . en precipe quod reddat le tenant plede feoffment l'ancestor le demandant ove garrantie en barre , a que le plaintiff dit què son ancestor al temps del ' fesans de cest fait , fuit moigne professe &c. sur que issue est joine ; moy semble que ceo est triable per pais solonque l'entendment de cest estatute . . en breif de dett port vers j. s. per nosme de j. s. chivaler , et il dit què al jour del ' breif purchase fuit counte de k. nient nosme counte , judgment &c. sur que ils soient al issue ; moy semble que ceo nest triable solonque l'entendment de cest estatute . mes en tiel action port vers un per le nosme d'evesque d'exeter , et il dit què il fuit abbe del ' monastery de dale jour del ' breif purchase , et nemy evesque ; et soient al issue sur ceo ; moy semble què cest issue est triable accordant al cest estatute . . en breif breif d'entre sur le disseisin le tenant plede recovery de mesme le terre vers le demandant en breif de wast ; al que le plaintiff dit què nest mesme le terre que fuit recover per breif de wast ; moy semble què cest issue nest triable solonque l'entendment de cest estatute . . home est oblige de server un auter de waiter & attender a ses besoynes en la citty de andwarpe per tout le temps d'un ann , en dett sur mesme l'obligation le defendant dit què il luy serve al andwarpe per tent le temps d'un ann accordant al obligation , et le plaintiff dit què per tout cest ann le defendant fuit demurrant en londres ; sur que ils soient al issue ; moy semble que ceo est triable solonque l'entendment de cest estatute . . sur un scire facias d'aver execution sur un recognizance , le viscount retorne le partie garnish , lou il ne fuit garnie , sur que execution est agard en breif de disceit vers le viscount pur son faux retorne , il averre què le plaintiff fuit garnie accordant al son retorne , et lauter que non ; sur que ils soient al issue ; moy semble que cest issue est triable solonque l'entendment de cest estatute . . sur un scire facias d'executer fine , le tenant dit què le terre d'ont il demand execution nest comprise deins le fine , l'auter dit què cy , & issint est trove ; et puis le demandant port breif d'entre sur disseisin de mesme le terre , et fist son title per le fine , l'auter dit nient comprise , sur que ils soient al issue ; moy semble què cest issue nest triable per pais solonque l'entendment de cest estatute . . en breif de trespass pur arbres coupès , le defendant plede recovery de mesme le terre ou &c. en assise , et issint justifie ; al que le plaintiff plede nient mise en view , et issint nient comprise , sur que ils soient al issue ; moy semble què ceo est triable per pais solonque l'entendment de cest estatute . . en un attachment sur prohibition le defendant dit que le plaintiff est excommenge , et monstre letters d'excommengement &c. al que le plaintiff dit què il fuit excommenge pur mesme la cause sur que il suet le prohibition , et l'auter dit que non , sur que ils soient al issue pur quel cause il fuit excommenge : moy semble que cest issue est triable solonque l'entendment de cest estatute . . en precipe quod reddat le tenant plede recovery vers le plaintiff mesme de cli. damages en breif de trespass pur que mesme le terre fuit extende , et liverè a luy per elegit ; sur que issue est prise : moy semble que cest issue est triable per circumstantibus solonque l'entendment de cest estatute . lectio quarta . en mes auters lectures adevant jeo aie monstre a vous en queux actions suits & demands le triall purvey per cest estatute prendera son effect , et en queux nemy ; et en queux courts tiels actions suits & demands doient estre port & commence ; et en quel lieu le court doiet estre tenus ; quant l'action serra commence , et quant l'action commencera en un court et serra mise a son triall en auter court ; et enter queux persons & parties le triall purvey per cest estatute prendera son effect ; et que serra dit parties deins le purvey de cest estatute , & que nemy : et queux issues serra trie solonque l'entendment de cest estatute , et queux nemy ; et de queux issues joine le demandant poet estre oustè de son triall purvey per cest estatute , & de queux nemy . et pur ceo que les parolls d'estatute soient ouster que en chescun breif de venire facias que ad cest clause quorum quilibet chescun que serra retorne doiet aver franktenement del ' value xl . s. al miens , et chescun que serra retorne en l'auter breif de venire facias sur cest clause quorum quilibet doit aver ascun franktenement : jeo ore entende ove vostre pacience de monstre a vous que serra dit sufficient franktenement pur jurours sur l'un breif , et sur l'auter . et pur ceo jeo entende que tiel home que ad terre , rent , office , ou auter profit apprendre hors d antient demesne al cleere annual value de xl . s. de quel il poet aver assise il ad sufficient franktenement destre un jurour sur l'un breif que conteine cest clause quorum quilibet . . lease pur anns del ' mannor de dale al value de x. li. per annum est fait rendrant xx.li. sur condition que si le rent soit arrere que donque le lessor et ses heirs poient re-enter et ceo retaine tanque le rent soit paie ; le rent est arrere , le lessor enter et morust seisie , le heire enter et continue son possession anns & jours , le rent nient paie ; moy semble que il n'ad sufficient franktenement durant le terme desire un jurour per cest estatute . . home fait lease pur vie ( sans impeachment de wast ) del ' terre al value de xl . s. per annum rendrant xl . s. de rent per annum , le lessee trove un mine de tin le profit de quel vault per annum li. le lessee n'ad sufficient franktenement d'estre un jurour per cest estatute . . home seisie del ' mannor de dale de ceo enfeoffe un estranger sur condition què il paiera annualment al j s. et a ses heires s. de rent , j.s. morust seisie de cest rent , et son heire ceo prist et est de ceo seisie per anns , & jours ; moy semble què le heire n'ad sufficient franktenement d'estre un jurour per cest estatute . . seignor & tenant per service de chivaler del ' terre al value de l. le tenant morust son heire deins age , le heire accomplish son age , et est marrie , le seignior continue son possession del ' terre nient satisfie del ' value del ' marriage ; moy semble què le seignior n'ad sufficient franktenement d'estre un jurour . . gardein en chivalrie tendre marriage al infant qui refuse , et luy mesme marrie deins age , le gardein tient le terre pur le duble value , et fait lease pur plusors anns que il doit aver le terre pur le duble value rendrant s. per annum ; moy semble què le gardein ad sufficient franktenement d'estre un jurour per cest esta-estatute . . lease pur anns del ' mannor de dale al value de x. li. est fait rendrant s. de rent sur condition què si le rent soit arrere , que le lessor re-entra et tiendra le terre tanque il soit paie de le rent , le rent est arrere , le lessor reenter et continue possession anns & jours , le rent nient paie , et puis fait lease al estranger pur vie rendrant s. de rent ; moy semble que le lessor ne le lessee n'ount sufficient franktenement d'estre un jurour durant le primer terme . . seignior & tenant per service de chivaler et s. de rent , le tenant morust son heire d'age d'un ann , le seignior hap le gard del ' terre et del ' heire et fist ses executors et morust , les executors ount le gard del'terre et del ' heire , moy semble què l'heire le seignior ad sufficient franktenement destre un jurour . . home qui ad terre al value de s. tenus del ' roy en cheif ceo alien al estranger en fee sans licence , l'alienee continue son possession per anns et jours , et puis sur office trove le roy seisist le terre pur le fine ; moy semble que l'alienee durant le possession le roy n'ad sufficient franktenement destre jurour . . home fait lease pur anns del ' mannor de dale rendrant s. per annum , sur condition què le lessee et ses assignes paiera annualment al lessor & ses heires l. ouster le rent , et puis le lessor grant le reversion al un estranger en fee , savant a luy et a ses heires le dit annual paiement de l. le tenant attorne ; moy semble què le lessor n'ad sufficient franktenement d'estre un jurour . . ieo grant al un loads de fein de prender annualment hors de mon pree de dale durant sa vie , moy semble què le grantee n'ad sufficient franktenement destre un jurour sur cest estatute . . tenant pur terme d'ans del ' terre al value de s. tient ouster son terme , et morust seisie , le lessor enter sur l'heire vers qui l'heire recover en assise ; moy semble què le heire ad sufcient franktenement destre un jurour sur cest estatute . . home seisie del ' terre al value de s. de ceo fist lease pur vie rendrant a luy pur terme de sa vie s. de rent , et apres son decease rendrant al j. b. son heire & a ses heirs s. le lessor morust ; moy semble què j. b. ad sufficient franktenement d'estre un jurour . . home grant un rent de s. per ann hors de son mannor de dale al j. s. pur terme de sa vie , le grantee per delivery de cest fait n'ad sufficient franktenement d'estre un jurour : mes si le grant soit fait ove clause de distresse le grantee per delivery de cest fait ad sufficient franktenement d'estre un jurour . . lease pur anns est fait al deux , l'un d'eux tenust ouster son terme et morust seisie , le lessor fist claime deins le lieu del ' terre , l'issue que est eins per discent waive son possession sur le claime fait , uncore , moy semble què le heire ad sufficient franktenement d'estre jurour , et le lessor nemy . . home grant un rent de s. ove clause de distresse al un auter pur vie , et deliver le fait al grantee sur condition què il ne distraine pur mesme le rent deins cinque anns prochein apres le delivery del ' fait , le grantee ad sufficient franktenement d'estre un jurour deins les dits cinque anns. . home per son volunt en escript devise son mannor de dale al j. s. pur vie , le remainder al heire del ' corps de a. h. ( qui est attaint en premunire ) en taile , le remainder ouster al estranger en fee , a.h. ad issue s.h. al temps del ' devise , j.s. morust , moy semble què s. h. ad sufficient franktenement d'estre jurour per cest estatute . . deux iointenants del ' mannor de dale en fee , l'un de eux grant rent-charge de s. al un auter pur vie hors de mesme le mannor , et morust , le joinrenant qui survesquist per sa volunt recite le grant et per son volunt confirme l'estate del ' grantee en mesme le rent , le grantee per cest confirmation ad sufficient franktenement d'estre jurour . . terre al value de s. est lesse al un pur vie rendrant d. de rent , ove condition de reentrie pur non paiement de ceo ; moy semble que le lessee n'ad sufficient franktenement d'estre un jurour per cest estatute sur l'un breif ne sur l'auter . . deux iointenants del ' mannor de dale al eux et a les heires de lour deux corps engendres , le un de eux grant rent-charge de s. al un estranger pur vie , le auter jointenant confirme son estate en le rent ove garrantie , les jointenants moriont ; moy semble què le grantee ad sufficient franktenement d'estre jurour . . trois iointenants soient , l'un de eux release tout son droit a les deux auters , et les deux al queux le release fuit fait grant un rent-charge de s. de rent al un estranger pur vie , et puis faiont partition & moriont ; moy semble que le grantee ad sufficient franktenement d'estre un jurour per cest estatute . . duex iointenants del ' mannor de dale l'un de eux grant un rent charge de s. al un auter pur vie , et puis le grantor confirme l'estate l'auter jointenant en trois parts del ' dit mannor a aver et tener les dits trois parts a luy et a ses heirs , et morust ; moy semble que le grantee del ' rent ad sufficient franktenement destre un jurour per cest estatute . . feme seisie del ' mannor de dale grant rent-charge de s. hors de ceo al un auter en fee , sur condition què si le grantee ne re-edifie un meason deins le dit mannor de dale deins trois anns , que adonque il avera le rent forsque pur anns ; le feme prist baron deins le dits trois anns qui interrupte le grantee , et ne voet luy suffer de re-edifier le meason , trois anns expire , le baron morust ; moy semble què le grantee ad sufficient franktenement destre un jurour . . home grant rent-charge de s. hors de son mannor de dale , et puis le demaines del ' mannnr soient recover vers luy sur un title per erronious iudgment ; moy semble què le grantee n'ad ore sufficient franktenement destre jurour : mes si le recovery ust estre per faux title ou faint action auterment est . . disseisor grant un rent-charge de s. en fee , et puis enfeoffe le eigne fits le disseisee deins age ( le disseisee esteant en vie ) et puis le fits devient al son plein age en le vie son pere et confirme le estate del ' grantee en le rent , et puis le pere morust , moy semble què le grantee ad sufficient franktenement destre un jurour . . feme sole seisie de acres de terre el & un estranger per le nosme de baron & feme de ceo levy fine al estranger , et puis la feme prist baron et ad issue et morust , le issue enter sur l'estranger et il fist continual claime ; moy semble què per cest continual claime il ad sufficient franktenement destre un jurour . . l'advowson del ' esglise de dale que est del ' annual valur de l. est grant al j. s. què il avera chescun presentment de ceo quant il deviendra voide durant sa vie ; moy semble què le grantee n'ad sufficient franktenement destre un jurour . . seignior & tenant per fealtie et un annual rent de s. et de render un rube rose quater anns , et chescun cinque ann suit al son molin ; moy semble què le seignior n'ad sufficient franktenement destre un jurour . . home fist lease del ' mannor de dale al value &c. enstore ove un stock des avers al un auter pur anns rendrant durant la vie le lessor s , et apres son decease rendrant pur le mannor s. et pur le stock des avers auters s. ove condition de re-entrie pur non paiement del ' dit rent ; moy semble que le lessor durant sa vie ad sufficient franktenement destre un jurour , mes nemy son heire apres son decease . . deux iointenants en feé del ' mannor de dale , l'un de eux accept lease pur anns per fait endentè del ' moiety del ' dit mannor d'un estranger , le auter jointenant grant rent-charge de s. al j. s. pur vie et morust , vivant le jointenant qui accept le lease ; moy semble que j. s. ad sufficient franktenement destre un jurour . . quater iointenants del ' terre &c. l'un release à l'un & un auter release al un auter , les deux al queux les releases fueront faits grant rent charge de s. al un auter en fee , et puis faiont un partition , et apres la moiety allotte a l'un est recover per bon title , uncore moy semble què le grantee del ' rent ad sufficient franktenement de s. destre un jurour per cest estatute . . tenant en taile enfeoffe son heire deins age , le quel vient al plein age en le vie son pere et grant un rent-charge de s. al un estranger ove garrantie , le pere morust ; moy semble què le grantee n'ad sufficient franktenement destre jurour : mes si le fits fist feoffment et prist estate arrere donque le grantee ad franktenement . . home per fait indente enrollè bargaine son mannor de dale al estranger pur l. et per mesme l'endenture est covenant grant & agree què si le bargainor espouse le file le bargainee devant tiel jour què adonque il serra seisie del ' dit mannor al use le bargainor et de sa feme en taile , et as heires le dit bargainor ; le bargainor marrie la file le bargainee , et morust , apres quel mort la feme de ceo enfeoffe un estranger , le heire del ' bargainor enter ; moy semble què il ad sufficient franktenement destre un jurour . . home seisie del ' terre en droit sa feme , le baron et sa feme per fait endentè grant rent charge de s. al estranger en fee ove garrantie , et puis le baron et feme font feoffment al un estranger en fee per fait endentè sur condition , la feme devie , le condition est enfreint , le baron devie , le heire enter sur le feoffee pur le condition enfreint ; moy semble què le grantee del ' rent n'ad ore ascun franktenement destre un jurour per cest estatute . . tenant en taile fait lease pur vie et morust , son issue grant rent-charge charge de s. hors de mesme le terre al estranger en fee , et puis grant le reversion del ' tenant pur vie al estranger en fee , al qui le tenant pur vie surrender son estate , le issue en taile ad issue et devie , et le issue enter sur le grantee del ' reversion ; moy semble què le grantee del ' rent na'd ascun franktenement destre jurour per cest estatute . . deux iointenants l'un de plein age et l'auter deins age et il grant rent charge de s. al estranger en fee et soynt disseisès , le disseisor morust seisie et apres le disseisee qui fuit deins age accomplish son age , le heire le disseisor fait lease de mesme le terre a les disseisees pur lour vies , l'un de eux devie , cestuy qui fuit deins age survive et soy tient eins per le survivor ; moy semble què le grantee del ' rent ad sufficient franktenement destre un jurour . . feme sole tenant in tail grant rent charge de s. al estranger en fee , et puis recovery est ewe vers le feme per faux action per default , et el prist baron , le recoveror lesse terre all baron et feme pur lour vies , ils fount wast , le recoveror port breif de wast et recover , le baron et feme devie sans issue ; moy semble què le grantee ad sufficient franktenement destre un jurour . . deux disseisors al opes de l'un d'eux , cestuy que use fait done en tail a son joint disseisor , le disseisee release al donee en tail , et puis le donee grant rent charge de s. al estranger en fee , le disseisee morust , le heire del disseisee reeover vers le donee en bred ' en try sur disseisin ; sur issue trie sur le diseisin moy semble que le grantee ad sufficient franktenement destre un jurour . . terre est done al deux femes a lun pur vie a lauter pur anns , cux deux grant rent charge de s. al un auter en see , le tenant pur vie devie , le terme continue moy semble que le grantee del ' rent na'd sufficient franktenement destre jurour . . terre est done a deux femes , a lun et a ses heirs females , & a lauter et a ses heirs males de son corps loialment issuants , sur condition què si ascun d'eux morust sans heir de son corps què le donor et ses heirs poet reenter ; les deux femes joine en grant de rent charge de s . al un estranger en fee , la feme , a que la limitation de ses heirs females fuit , morust sans heir de son corps , le donor enter , uncore moy semble que le grantee ad sufficient franktenement destre jurour . . home sur consideration del ' marriage de sa file al i. s. fait feofment en fee del ' mannor de dale al estranger et a ses heirs per sait indente , al use del ' feoffee or ses heirs , per quel fait est covenant grant et agree qué le feoffee et ses heirs paiera al dit i. s. et a sa feme ( la file le feoffor ) s. per annum , et sil faut de paiment què adonque i. s. et sa feme et lour heirs entront en la terre et ceo reteineront a touts jours , le rent nest paie accordant al agreement moy semble que i. s. ad franktenement del ' mannor destre un jurour . . le discontinuee del ' tenant en tail grant rent charge de s. al estranger en fee , et puis est disseisie per tenant en tail , le discontinuee ad issue deins age et fait continual claime , et morust , le tenant en tail morust deins l'ann et devant l'entrie del ' heire del ' tenant en tail , le heir le discontinuee esteant deins age enter , moy semble què le grantee ad sufficient franktenement destre jurour . . rent charge de s. est grant a feme sole en fee , el prist baron , le rent est arrere , le baron release al grantor touts manner d'actions , moy semble que le baron ad ascun franktenement destre jurour . . home fait lease al un auter dumodo solverit al lessor pur sen vie s et fait livery moy semble què le lessor ad sufficient franktenement destre jurour . . seignior et tenant per fealty et s. de rent et suit de court a son mannor de dale de tribus septimanis in tres septimanas moy semble què le seignior n'ad sufficient franktenement destre jurour sur le primer brief de venire facias mencionè en cest estatute : mes si il tient per autiel rent et suit al molin moy semble què il ad sufficient franktenement destre un jurour . . home seisie del terre al value de s . deins le countie de midd. et de terre al value de d . deins le countie de sussex et grant rent charge de s . issuant hors de tout son terre al un estranger en fee moy semble que le grantee ad sufficient franktenement destre un jurour en l'un countie et en l'auter solonque l'en tend ment de cest estatute . . terre al value de s. est done al baron et feme et a les heirs de loure deux corps engerdres , ils ount issue fits , le baron done le terre per fine al estranger et a ses heirs et morust , la feme entra et morust seisie , le fits n'ad sufficient franktenement destre jurour per cest estatute . lectio quinta . en mes auter lectures adevant jeo aye monstre a vous mon opinion sur cest estatute en queux actions suits et demands le tryal purvey per cest estatute prendera son effect et en queux nemy , et en queux courts tiels actions suits et demands doient estre port et commence , et en quel lieu le court doiet estre tenus , quant action serra commence en lun court et serra mise a son tryal en l'auter , et al enter queux persons et parties le trial purvey per cest estatute prendera son effect , et queux persons serra dits parties deins le purvey de cest estatute et queux nemy , et queux issues serra trie solonque le entendment de cest estatute et queux nemy , et ouster que serra dit sufficient franktenement pur un home destre un jurour sur un brief de venire facias mencionè en cest estatute , & que sur auter ; et pur ceo què les parolls de cest estatute , sont ouster que le viscount ne omitte de retorner tiels persons que ount sufficient franktenement sur l'un brief et sur l'auter accordant a les parolls del ' dit brief sur paine que chescun person que est issint retorne per le viscount ou auter minister quen'ad sufficient franktenement s : ore jeo intende ove vostre pacience de monstre a vous mon opinion quant le viscount ou auter minister retorne ascuns persons que al temqs del ' panell fait n'ount ascun franktenement et uncore s'ils ount sufficient quant ils soient destre jurn le viscount ou auter minister ne perdera le penalty levyt per cest estatute et quant ils en ceo case perdera le penalty per cest estatute lou les persons retorne per eux oun sufficient franktenement al temps del ' retorne et quant ils serra jurie ils nount ascun et quant ils ne perdra le penalty in tiel case sur cest estatute et quant le viscount ou auter minister poet per lour retorne des jurours de sufficient franktenement auterment perdra le penalty levyt per cest estatute et quant nemy . . morgagor et morgagee del ' terre al value de l. sur condition de paiment , et non paiement del ' part le morgagee et puis et devant le jour de paiment le viscount empanel le morgagor et le morgagee en un panell et puis retorne del ' brief le morgagee fist default en son paiement per que se morgagor reenter moy semble què le viscount perdra le penalty pur le morgagor mes nemy pur le morgagee . . brief de venire facias vient al mains le viscount et il empanel j. s. qui adonque ad terre al value de s . et devant le brief retorne il ceo alien al estranger moy semble que le viscount ne perdra le penalty done per cest estatute . . le viscount empanel a.b. sur un venire facias qui al temps del ' panell fait n'ad ascun franktenement , et al jour del ' retorne del ' brief il purchase terre &c. le viscount ne per drale penalty per cest estatute . . home qui ad terre al value de s . est emplede pur mesme le terre per praecipe quod reddat et puis le viscount qui retorne mesme le brief luy empanel sur venire facias , qui est retorne et puis devant lenquest prist le terre est recover hors del ' possession cestuy qui fuit empanel moy semble què le viscount ne perdra le penalty done per cest estatute . quaere . . le viscount empanel un qui ad terre al value de s , et puis le panell fait et devant le brief retorne cest terre est extend en les mains d'un estranger pur l. sur bon estatute merchant , moy semble què le viscount perdra le penalty done per cest estatute . mes. si l'extent ussoit apres le retorne et devant le tenant enfreint le condition , moy semble què le viscount ne perdra le penalty per cest estatute . . home fait lease put anns rendrant s. per ann , sur condition què le lessee paiera al lessor l. al fine de les primers deux anns auterment son estate serra void , et puis grant le reversion al estranger sur condition que si le lessee ne paiera les dits l. ( come est avandit ) què adonques le grant del ' reversion serra void le tenant attorne et le grantee est empanel en un venire facias per le viscount et apres le breif retorne le tenant enfreint le condition moy semble què le viscount ne perdra le penalty sur cest estatute . . venire facias est direct al viscount de retorner xxiv quorum quilibet &c. et il empanel sur mesme le breif xxvi d'ont xxiv ount sufficient franktenement , et l'auters nemy , uncore , moy semble què le viscount ne perdra le penalty done per cest estatute . . seignior et tenant del ' terre al value de s. le tenant morust sa feme esteant grossement enseint le seignior enter come en son estate le viscount empanel le seignior et puis le retorne del ' breif issue est nee moy semble que le viscount perdra le penalty per cest estatute . mes si la feme ust estre priviment enseint al jour del ' breif retorne le viscount ne perdra ascun penalty . . home seisie del ' terre al value de l' que est tenus en cheif ceo alien en fee le alienee continue son possession per anns ( le fine pur l'alienation nient paie ) le viscount empanel le alienee , et devant le breif retorne le roy seisist le terre pur le fine d'alienation , et le viscount retorne le breif ( esteant le terre en les mains le roy pur le fine ) moy semble què le viscount ne perdra le penalty done per cest estatute . . rent charge de s. ove clause de distresse est grant al un en tail le viscount empanel le grantee sur un venire facias et apres le panell fait et devant le retorn del ' breif le grantee port breif d'annuity et le breif de venire facias est retorne , moy semble què le viscount perdra le penalty done per cest estatute . mes si le breif d'annuity ust estre port apres le breif de venire facias retorne le viscount ne perdra le penalty per cest estatute pur cest retorne . . seignior et villein le seignior est seisie del ' terre al value de s. hors de que un estranger ad un rent charge de s. le viscount empanell le seignior et le villein en un mesme panell al jour del ' breif retorne le grantee del ' rent grant mesme le rent al villein , moy semble què le viscount perdra le penalty done per cest estatute pur retorne del ' villein mes nemy pur le seignior . . sur issue joine en precipe quod reddat al comen ley le viscount retorne sur le venire facias xii qui demurront en gildable et xii qui demurront deins un franchise , moy semble què le viscount ne perdra le penalty done per cest estatute pur cest retorne . . le viscount empanel sur un venire facias un home attaint de felony , et un auter attaint en premunire , et un auter qui apres le fesans del ' panell ' et devant le retorne del ' breif devient paralitike ou lunatike , et chescun de eux al temps del ' retorne ad assets franktenement le viscount perdra le penalty de cest estatute pur retorne les deux persons attaints mes nemy pur le tierce . le viscount sur venire facias empanel j. s. le pere et t. s. le fits , le pere ayant terre al value de s. et le fits riens et puis le retorne del ' breif et devant le breif de nisi prius agard le pere enter en religion , et le fits enter en la terre come heire , et puis est jurie sur nisi prius , uncore moy semble què le viiscount perdra le penalty purle fits , mes nemy pur le pere. mes sile pere ust estre mort devant le retorne del ' breif le viscount ne perdra le penalty de cest estatute pur l'un ne pur l'auter . . si le viscount empanel un sur venire facias qui est en malady al temps del ' retorne al conusans del ' viscount , et un auter qui ad continual infirmity , et un auter qui est decrepit , et ils touts ount sufficient franktenement , moy semble què le viscount ne perdra le penalty done per cest estatute pur retorne d'ascun d'eux . . le roy ses letters patents done terre al value &c. al j. s. en tail a tener a luy per servic̄ debit , et le donee fist lease a r. w. pur vie , le qui r. w. est empanel sur un breif de venire facias , et devant le jour de nisi prius j. s. morust sans issue , moy semble què le viscount ne perdra ascun penalty per cest estatute . . le roy per ses letters patents done terre al value de s. a j. s. et a ses heires a tener a luy per le service de render annualment un sete et en default de ceo s. j. s. est disseisie , et le viscount ambideux empanel sur un venire facias , et ceo retorne , et devant le jour de nisi prius j. s. morust sans heir , moy semble què le viscount perdra le penalty de cest estatute pur le disseisor et le disseisee auxy . . le tenant le roy morust sans heire general ou special , estranger abate et le viscount luy empanel sur un venire facias , moy semble què le viscount perdra le penalty done per cest estatute pur cest retorne . . done en tail est fait al i. s. rendrant un rose al feast del ' nativity de st. john baptist , et pur default de paiement un reentry ; le rent del ' rose est arrere , et le viscount empanel le donee , et puis le retorne et devant le jour de nisi prius le judgment est reverse moy semble què le viscount ne perdra le penalty done per cest estatute . . en precipe quod reddat un recover per erronious judgment , et le viscount retorne cestuy qui recover en un venire facias , et puis le retorne et devant le jour de nisi prius le iudgment est reverse moy semble que le viscount ne perdra le penalty per cest estatute . . gardein en chivalry assigne rent de s. al feme pur sa dower hors de terre de quel el fuit dowable , lou el doiet estre endowe de droit forsque de teirce part al value de s , la ' feme prist baron et le gardein en chivalry esteant viscount empanel le baron sur un venire facias , et apres le brief retorne et devant le jour de nisi prius le heir accomplish son age et denie le rent moy semble que le viscount perdra le penalty done per cest estatute pur cest retorne . . recovery de terre al value de s. est ewe vers a. b. esteant viscount en precipe quòd reddat per faux judgment , et mesme le viscount retorne le recoveror sur un venire facias , et apres le retorne et devant le jour de nisi prius le viscount reverse le judgment per brief de error et enter moy semble que le viscount perdra le penalty per cest estatute . . home seisie del ' mannor de dale en droit sa feme est empanel per le viscount et puis le retorne et devant le jour del ' nisi prius la feme morust moy semble que le viscount ne perdra le penalty de cest estatute mes si la feme morust apres le panell fait et devant le jour del ' retorne il perdra le penalty done per cest estatute . le viscount empanel j s. sur un venire facias qui ad franktenement et ●●●es panell fait et devant le jour del ' retorne j. s. morust moy semble que le viscount ne perdra le penalty de cest estatute pur cest retorne . . le viscount empanel i. s. sur un venire facias qui ad terre al value de s. et apres le retorne et devant le appearance del ' inquest j. s. grant rent charge de s . al mesme le viscount issuant hors de mesme le terre moy semble que il ne perdra le penalty de cest estatute . le viscount port breif de wast vees son tenant a terme de vie , et pendant le breif il luy retorne sur un panell , et puis devant le jour de nisi prius le viscount recover le lieu wast moy semble que il perdra le penalty per cest estatute . . le viscount fait lease pur vie al estranger del ' terre al value &c. et mesme le viscount luy empanel en un enquest et puis le retorne del ' breif et devant le nisi prius il fist feoffment de mesme le terre al estranger , et fist letter d'attorny al lessee de faire livery qui fait livery accordant devant le jour de nisi prius moy semble què le viscount ore ne perdra le penalty per cest estatute . . l'abbe de westminster fait lease pur vie del terre al value &c. le viscount empanel le lessee et devant le retorne del ' breif de venire facias l'abbe fist feoffment de mesme le terre al dean et chapiter de paules ove letter de attorney al lessee de faire livery qui fait livery accordant , et puis le breif est retorne moy semble què le viscount ne perdra ascun penalty per cest estatute . . si le viscount empanel un sur venire facias qui ad franktenement al value de s. et devant le retorne breif il grant rent eharge de s . al estranger moy semble què il ne perdra le penalty per cest estatute . . lease del ' mannor de dale est fait per un abbe al un auter per vie et puis le abbe fait feoffment del ' mannor al un estranger ove letter d' attorny al lessee de faire livery accordant , et breif de venire facias vient al viscount portant date mesme le jour que le livery fuit fait et le viscount empanel le lessee sur mesme le breif moy semble que il perdra le penalty de cest estatute . . tenant de terre al value de s . charge mesme le terre ove s. al un auter , sur condition què le grantee luy enfeoffe de terre al value de l. deins un moys que j. s. est fait viscount del ' county de c. auterment le rent cessera . j. s. est fait viscount , et deins jours del ' fine del ' moys il retorne le grantor en un enquest moy semble què il ne perdra le penalty per cest estatute . . a. b. disseisist c. d. de terre al value &c. le viscount empanel a.b. sur un enquest et devant le jour de nisi prius le ancestor collateral le le disseisee release al disseisor et morust le garranty discend sur le disseisee moy semble que le viscount ne perdra ascun penalty per cest estatute . . en precipe quod reddat le tenant plede release portant date al dale que est franchise et county en luy mesme , sur que ils soient al issue per que venire facias est agard ove tiels parols del ' venire facias duodecim de villa de dale , sur que le viscount retorne xii jurours qui ount sufficient franktenement et auters xii qui n' ount ascun franktenement moy semble que le viscount ne perdra le penalty done per cest estatute . . en breif de dett de c. li. port per un denison vers un alien sur issue joine le viscount retorne certein aliens qui n'ount ascun franktenement moy semble que il ne perdra le penalty per cest estatute . . en breif de covenant port per un alien vers un denison ils pledont al issue , et apres l'issue joine et le breif de venire facias agard le alien est fait denison et le viscount retorne sur le venire facias certein aliens qui n'ount ascun franktenement moy semble que il ne perdra le penalty per cest estatute . . le viscount sur un venire facias retorne forsque xii iurours et non plusors , et chescun d'eux ad sufficient fraktenement moy semble què il ne perdra le penalty done per cest estatute . . le viscount de dale covenant per indenture ove j. s. què un estranger recovera vers luy le mannor de dale a tiel use entent et condition que le recoveror sur request executera estate del ' moiety del ' mannor al viscount pur vie , le remainder al dit j.s. rendrant l. per annum , et apres cel estate execute què le recoveror doneroit et granteroit le reversion et le remainder del ' mannor al dit viscount et a ses heires . le recoveror sur request execute estate del ' moiety del ' dit mannor sans riens faire ove lauter moiety . le viscount empanel l'estranger moy semble què il perdra le penalty done per cest estatute . . si le viscount sur un venire empanel un qui ad sufficient franktenement , et il adevant avoit done al un auter un mortal plage , et puis le retorne cestuy qui fuit percusse morust moy semble què le viscount ne perdra le penalty done per cest estatute . . le viscount sur un venire facias empanel ascun persons que n'ount ascun franktenement , et puis le fesans del ' panell ' et devant le retorne del ' breif mesme le viscount est discharge et un auter viscount eslie et le viscount qui fist le panell ceo deliver per indenture enter auters breifs al novel viscount et il ceo retorne moy semble què nul de les viscounts perdra le penalty per cest estatute . lectio sexta . en mes auters lectures adevant jeo aye monstre a vous mon opinion sur cest estatute en queux actions , suits et demands le trial purvey per cest estatute prendra son effect et en queux nemy et en queux courts tiels actions suits et demands doient estre port et commence et en quel lieu le court doiet estre tenus quant l' action serra commence en l'un court et serra mise a son triall en l'auter court et enter queux persons & parties le tryal purvey per cest estatute prendera son effect et queux persons serra dit parties deins le purvey de cest estatute et queux issues serra trie solonque l'entendment de cest estatute et queux nemy et ouster que serra dit sufficient franktenement pur un home destre un jurour sur un breif et sur l auter solonque l'entendment de cest estatute et quant le viscount ou auter minister perdra le penalty limitte per cest estatute et quant nemy et pur ceo que les parolls d estatute soient què le viscount empanel sur chescun breif de venire facias sex sufficient hundredors et què il perdra pur chescun hundredor omitte en le panell s. jeo entende ore ove vostre pacience de monstre a vous qui serra dit sufficient hundredor solonque l'entendment de cest estatute et qui nemy et quant le viscount perdra le penalty quant il retorne nul hundredor solonque l'entendment de cest estatute . . sur issue joine en breif de eschete le viscount sur le venire facias empanel ( enter auters ) deux ou trois seigniors del ' parliament et auters barons moy semble que ils soient sufficient hundredors solonque l'entendment de cest estatute . . home qui ad terre deins le hundred est empanel et devant le jour de nisi prius alien le terre al estranger moy semble què il est sufficient hundredor nient obstant . . home qui ad terre deins le hundred est empanel et devant le retorne del ' breif il grant rent charge al value del ' terre al j. s. uncore moy semble què il est sufficient hundredor deins le purvey de cest estatute . . le viscount empanel un qui demurrust deins le hundred ou &c. mes il n'ad ascun franktenement deins mesme le hundred ne deins mesme le county mes il ad deins auter county moy semble què il n'est sufficient hundredor deins le purvey de cest estatute . . en breif d annuity issue est joine sur le siesin que est allege d'estre en auter hundred què le esglise est et le viscount empanel , un qui ust assets ou l'esglise est moy semble què il est sufficient hundredor deins le purvey de cest estatute . . si le viscount empanel un qui ad sufficient deins le hundred ou &c. mes il demurrust en auter county moy semble què il est sufficient hundredor deins le purvey de cest estatute . . vn qui ad forsque un virge de terre deins le hundred ou &c. s'il ad auter sufficient franktenement deins mesme le county il est sufficient hundredor deins le purvey de cest estatute . . le hundred de dale esy deins le lete de sale et les hundredors de mesme le hundred ount use destre jurès ensemblement ove les resiants del ' lete et sur issue joine que est triable per le venue del ' hundred ' un qui demurrust ou ad assets deins le lete est empanel moy semble què il est sufficient hundredor nient obstant què il n'ad riens deins le hundred . . si le venue sur issue joine soit de un grand rape que ad un grand circuit hors de chescun hundred si le viscount sur venire facias empanel un qui ad franktenement et est demurrant deins mesme le rape il est sufficient hundredor solonque l'entendment de cest estatute . . issue est joine d'un chose fait deins un franchise ou ville corporate que est hors de chescun hundred si le viscount sur venire facias empanel un qui demurt deins mesme le ville ou franchise il est sufficient hundredor deins le purvey de cest estatute . . le viscount empanel un qui ad recover terre deins le hundred ou le venue est allege accordant a son title per erronious iudgment moy semble què il est sufficient hundredor deins le purvey de cest estatute . . home qui ad terre deins un hundred al value de s. que il tient en ancient demesne en franktenement moy semble que il n'est sufficient hundredor deins le purvey de cest estatute . . en action sur le statute pur l'entre en le mannor de dale en sale le defendant plede non culpabilis le viscount empanel un qui demurrust deins le mannor de dale moy semble què il n'est sufficient hundredor deins le purvey de cest estatute . . home qui ad un office del ' bailywick deins le hundred ou le venue est allege si il soit empanel est sufficient hundredor . . home qui est seisie en feé del ' advowson del ' esglise de dale al value de l. per annum que est deins un hundred moy semble què per ceo n'est sufficient hundredor destre empanel pur mesme le hundred . . home qui ad rent ou comen d'estovers ou comen de turbary deins un hundred il est sufficient hundredor destre empanel pur mesme le hundred . . home qui ad un market ou un faire pur terme de sa vie deins un hundred il est sufficient hundredor destre empanel pur mesme hundred . . home qui ad un freé piscarie ou frankfold deins un hundred moy semble què il est sufficient hundredor destre empanel deins mesme le hundred . . home qui ad un tolle ou un passage deins un hundred est sufficient hundredor destre empanel pur mesme le hundred . . home qui ad un lete destre tenus deins un hundred est sufficient hundredor destre empanel pur mesme le hundred . . en breif de entry sur disseisin del ' mannor de dale le tenant plede al issue le mannor est deins le ville de sale le viscount sur venire facias empanel trois franktenants del ' mannor et auters trois del sale moy semble què le viscount perdra le penalty per cest estatute . . en breif de trespasse sur l'estatute de h. . pur l'entre en le mannor de dale en sale le defendant plede rien culpable le viscount retorne nul del ' venue del ' mannor moy semble què uncore què il ne perdra le penalty per cest estatute . . en trespasse suppose destre fait al dale deins le county de middlesex le defendant dit que deins mesme le county soient over-dale et nether-dale et nul sans addition et le plaintiff dit què le lieu ou &c. est dale sans addition prist ; sur que venire facias est agard en quel le viscount retorne nul hundredors moy semble què le viscount ne perdra ascun penalty per cest estatute . . issue est joine que est triable per deux venues deins un county le viscount sur le venire facias retorne forsque trois hundredors de chescun venue et nemy sex de chescun venue accordant a les parolls d'estatute uncore moy semble que il ne perdra le penalty de cest estatute . . en precipe quod reddat de deux acres de terre d'ont l'un est deins un franchise que ad retorna brevium et le auter gildable et l'issue est joine sur le disseisin le viscount retorne quater hundredors ou le terre gildable gist , et deux de franchise e le baily del ' franchise retorne sex del ' franchise et nul del ' hundred gildable moy semble què le visount perdra le penalty purvey per cest estatute . . sur issue joine le lieu est allege ; a. b. et le plaintiff monstre al court què touts les franktenants de mesme le hundred soient desouth le distresse del ' defendant et prie breif de venire facias al prochein hundred , le quel est a luy grant sans examination ou confession le defendant et sur mesme le breif le viscount retorne sex hundredors del ' hundred prochein adjoinant accordant as parolls del ' breif , et nul hundredor ou le venue est moy semble què il ne perdra le penalty de cest estatute . . si le viscount en son panel ne retorne tant des hundredors come le statute limitt , et quant ils soient d'estre jurès ils soient challenge pur le insufficiency del ' hundred , et per trial est trove què ils ount sufficient deins le hundred , lou ils n'ount riens , sur quel triall ils sont jurès come hundredors et trie l'issue moy semble que le viscount perdra ascun penalty per cest estatute . . si le viscount empanel sex hundredors mes chescun de eux est deins le distresse del ' plaintiffe ou defendant , ou que soient cosins ou gossips al plaintiff ou defendant moy semble què il ne perdra ascun penalty per cest estatute . . sur issue joine le plaintiff monstre covient touts qui soient hundredors deins le hundred ou le venue est allege soient deins le distresse del ' plaintiff et prie retorne del ' hundredors del ' hundred prochein adjoinant sur que breif de venue de prochein hundred est agard le viscount retorne forsque quater hundredors de mesme le hundred moy semble què il perdra le penalty per cest estatute . . en breif d'annuity issuant hors d'esglise de dale deins le county de middlesex , le seisin est allege deins le hundred de b. deins le county de kent le viscount sur venire facias retorne forsque quater hundredors moy semble què il ne perdra le penalty per cest estatute . . issue est joine que est triable per le venue de a. et venire facias est agard del ' venue de b. et puis le viscount retorne jury del ' venue de b. moy semble què le viscount doit retorne sex hundredors del ' venue de b. accordant a les parolls del ' breif sur paine containe en cest estatute uncore les parolls d'estatute sont què il retornera sex hundredors del ' hundred ou le breif gist . . en breif de dett vers a. b. de dale deins le county de o. qui dit que il ad nul tiel ville de dale hamlett ne lieu conus deins mesme le county hors de ville et hamlett et le plaintiff prist que cy . sur que venire facias est agard al viscount de mesme le county le quel rotorne nul hundredor deins le panel moy semble què il ne perdra le ●●●alty per cest estatute . sur issue joine lou le venue serra d'un rape que ad un grand circuit que est hors de chescun hundred et sur venire facias a luy direct ' il retorne desouth le nomber de sex deins mesme le rape moy semble què le viscount perdra le penalty sur cest estatute et uncore le venue n'est d'ascun hundred accordant a les parolls d'estatute . . en trespasse vers deux l'un plede rien culpable , l'auter plede release portant date al auter lieu que ou le trespasse fuit fait , sur que deux venire facias soient agard moy semble què le viscount doit retorne sex hundredors del ' venue ou le trespasse fuit en l'un breif , et tant des hundredors del ' venue ou le fait port date auterment il perdra le penalty de cest estatute . . en quare impedit d'un disturbance de presenter al esglise de dale deins le county de kent le defendant dit que mesme le deins le county de surrey prist , sur que ils soient al issue et sur venire facias nul hundredors del ' venue de dale ou l'esglise est . soient retorne moy semble què le viscount ne perdra le penalty de cest estatute . . le ville de dale est un hundred que extend en d'eux counties et en breif de trespasse fait en le dit ville en le confine de les dits deux counties le defendant plede rien culpable , moy semble que chescun viscount de es dits counties a que venire facias est direct doit retorner sex hundredors de mesme le hundred sur le paine containe en cest estatute . . issue joine , surmyse est fait al court per le plaintiff que deins le hundred ou le venue est soient forsque deux hundredors per que il ad venire facias del ' hundred prochein adjoinant , sur que il retorne quater hundredors del ' venue mention en le breif et les deux de l'auter hundred ou le venue fuit allege moy semble què le viscount ne perdra le penalty de per cest estatute . . sur issue joine del ' venue de dale sur le default le plaintiff le defendant sue venire facias al viscount sur que il retorne quater hundredors moy semble què il perdra le penalty de cest estatute nient obstant que le breif ne fuit sue per le plaintiff ne demandant . . sur issue joine apres un default le plaintiff sue un breif de venire facias et le defendant un auter et le viscount retorne sur le breif del ' plaintiff sex hundredors et sur le breif le defendant forsque quater moy semble viscount ne perdra le penalty de cest estatute . . sur issue joine de chose fait deins un franchise ou ville corporate que est hors de chescun hundred , sur un venire facias le viscount retorne forsque quater deins mesme le franchise moy semble què il perdra le penalty de cest estatute . . sur issue joine en un venue lou soient forsque quater hundredors et le viscount retorne eux touts et retorne le breif servie mes ne fait alcun mention en son retorne que soient forsque quater hundredors deins mesme le hundred uncore moy semble que il ne perdra le penalty de cest estatute . . si sont forsque quater hundredors deins un hundred et sur venire facias le viscount empanel trois et retorne que ne sont plusors hundredors forsque les trois que il ad retorne moy semble què il ne perdra le penalty de cest estatute . . sur issue joine le venue est del ' ville de dale que est en le confine de deux hundreds et hors de chescun hundred et le viscount sur venire facias retorne trois hundredors de chescun de les dits hundreds et nul person del ' ville ou le venue fuit moy semble que le viscount ne perdra le penalty de cest estatute . . le viscount sur venire facias retorne forsque quater , hundredors et puis le retorne , et devant l'enquest prise deux auters del ' panell purchasont terre deins mesme le hundred , issint quant l'enquest est destre jure ils soient sex hundredors moy semble que le viscount perdra le penalty de cest estatute . . le viscount retorne forsque quater hundredors sur venire facias al jour del ' enquest , plein enquest est jure sans ascun challenge d'ascuns des parties pur le hundred moy semble que ceo nient obstant le viscount perdra le penalty de cest estatute . lectio septima . en mes auters lectures devant cest temps jeo aye monstre a vous mon opinion sur cest estatute en queux actious suits & demands le triall purvey per cest estatute prendra son effect et en queux nemy et en queux courts suits & demands ou actions doient estre port & commence et en quel lieu le court doit estre tenus quant le action serra commence et quant le action serra commence en l'un court & serra mise a son tryall en lauter court et enter queux persons & parties le tryall purvey per cest estatute prendra son effect et queux persons serra dits parties deins le purvey de cest estatute , et queux nemy et queux issues serra trie solonque l'entendment de cest estatute , et queux nemy et ouster , que serra dit sufficient franktenement pur un home destre un jurour sur l'un breif et sur l'auter solonque l'entendment de cest estatute et quant le viscount ou auter minister perdra le penalty limitt per cest estatute , et quant nemy et quant le viscount perdra le penalty de c●st estatute pur non retorner de sufficient hundredors solonque l'entendment de cest estatute , et quant nemy et pur ceo què les parolls del statute soient ouster què en chescun breif de habeas corpora ou distringas ove nisi prius lou plein jury appiert devant les justices d'assise ou nisi prius ou apres appearance de plein jury per challenge de ascun des parties le enquest remanera nient prise pur default des jurors què adonque mesme les justices sur request fait per le partie plaintiff ou demandant poet commander le viscount ou auter minister de retorner tales de circumstantibus &c. ore jeo entende desouth vostre pacience de monstre a vous sur quel default ou non appearance des jurors les justices de nisi prius poient agard tales de circumstantibas solonque l entendment de cest estatute , et sur quel nemy et quant le ▪ plaintiff ou demandant avera tales a son prier et uncore quant il est retorne il ne proccedera al prisel del enquest solonque l entendment de cest estatute . et quant des persons le viscount poet retorner sur un tales solonque l'entendment de cest estatute . . en cessavit le tenant plede què la terre fuit overt & sufficient al son distresse , sur quel issue est joine ; et al jour de nisi prius les jurours fount default , et le demandant prie tales de circumstantibus accordant al cest estatute , et le tenant adonque tender les arrearages al demandant et les jette en court les justices ceo nient obstant poent agard tales de circumstantibus accordant a cest estatute .. . en breif de wast issue est joine sur nul wast fait et al nisi prius le jury appiert plein des queux sex ount le lieu et puis per challenge deux de les vewors soient trete moy semble que le plaintiff a cest temps n'avera tales de circumstantibus accordant a les parolls de cest estatute . . en precipe quod reddat issue est joine sur feoffment ove testmoignes , per que process est agard de faire vener l'enquest et les testmoignes auxy , et al jour de nisi prius sur le primer distress les testmoignes ne appieront et ascun del ' enquest font default per que le enquest nest plein moy semble què tales ne poient estre agard solonque l'entendment de cest estatute . . en precipe qd reddat sur issue joine sur un fait ove testmoignes process continue vers les jurours et les testmoignes tanque al grand distress que est agard ove nisi prius et al jour del ' nisi prius les testmoignes ne appieront et parcell del ' enquest font default moy semble que les justices poent agard tales de circumstantibus al prier del ' demandant solonque l'entendment de cest estatute . . sur issue joine sur un fait ove testmoignes habeas corpora ove nisi prius est agard , et al jour del ' nisi prius le viscount retorne què les testmoignes n'ount riens deins mesme le county , ou què ils soient mortes et pur le enquest il retorne le breif servie et al mesme le jour parcell del ' enquest font default moy semble que les justices sur cel default poient agarder tales de circumstantibus si le plaintiff ou demandant ceo prie . . sur issue joine al nisi prius le enquest appiert plein des queux soient deux hundredors queux deux soient jurès enter auters jurours issint que le enquest nest plein pur default des hundredors moy semble que le plaintiff en cest case poet aver tales de circumstantibus de plusors hundredors si soient deins le lieu per force de les parolls de cest estatute . . al nisi prius plein enquest appiert d'ont sex soient hundredors accordant a les parolls d'estatute , et quater de les hundredors soient jurès , et auters touts de l'enquest soient tretes per challenge moy semble què le plaintiff avera tales de circumstantibus nient obstant que ne soient ascun auters hundredors deins le lieu et nient obstant que les parolls d'estatute soient que sex hundredors serra empanel en chescun enquest . . sur issue joine en breif de mesne sex hundredors soient retorne en le panel , et al jour de nisi prius le enquest appiert plein ouster les hundredors , et deux les hundredors sont jurès , et les auters hundredors tretes per challenge , et touts les auters del ' enquest al number de plein enquest soient challenge preter h. moy semble què les justices en cest case ne poient agarder tales de circumstantibus . . issue joine al nisi prius l'enquest est demand et un appiert et touts les auters font default moy semble que les justices poent agarder tales de circumstantibus al prier del ' plaintiff ou demandant . issint est si le plein enquest ust un foits appiere et ussoient estre treits per challenge touts forsque un . . sur issue joine le enquest appiert plein devant les justices de nisi pr●us et tout le enquest forsque un fuit treit per principal challenge et le jurour qui remaine est auxy challenge pur favor moy semble que ore les justices sur cel default ne poient agarder tales de circumstantibus solonque l'entendment de cest estatute . . al nisi prius plein enquest appiert et le defendant challenge le primer jurour quant il ne vient al lieu destre jurè et touts peravayle et touts les jurours forsque deux soient treits per challenge moy semble que les justices sur cel default ne poient agarder tales de circumstantibus solonque l'entendment de cest estatute . . breif de nisi prius est perenter deux grand seigniors et auters homes de grand poer , et sur special labour d'eux et lour amies le jurours font default et auters soient labours d'estre present en court pur estre retorne de circumstantibus issint que un grand tumult est semble que en cest case les justices de lour discretion poent ouster le plantiff ou demandant de son tales et per lour discretion eux adjorner en bank nient obstant cest estatute . . en breif de trespass le defendant plede rien culpable et al jour de nisi prius il monstre un arbitrement fait puis le darrein continuance le quel le plaintiff la confesse uncore moy semble que les justices poient agarder circumstantibus si le plaintiff ceo voilt prie . . sur venire facias xxiiii jurours soient retorne et sur le habeas corpora ove nisi prius l'un des jurours est omitte moy semble que sur default des jurours les justices en cel case ne poent agarder tales de circumstantibus . . sur issue joine nisi prius un protection est jette pur le defendant moy semble que les justices ore sur ascun default des jurours ne poent agarder tales de circumstantibus solonque le entendment de cest estatute . . al nisi prius pur default des primers jurours le plaintiff ad un tales a luy agard per les justices per quel le enquest ove les primer jurours est pleine , et quant ils vient destre jurès le defendant challenge le array del ' principal panell que est quash moy semble que il ne poet aver auter tales de faier plein enquest solonque l'entendment de cest estatute . . en quare impedit al nisi prius le plaintiff ad un tales de circumstantibus en quel le viscount retorne xvi queux appieront et quant le primer jury est destre jurè le defendant challenge l'array del ' primer enquest que est quash moy semble que le plaintiff ne puit ' prender plein jury del ' tales que appiert nient obstant les parolls de cest estatute et uncore sil ussoit al comen ley il puissoit aver plein enquest de tales et procedereit . . sur habeas corpora ove nisi prius retorne per le bailiff d'un franchise qui ad retorna brevium , al nisi prius les jurours font default per que le bailiff esteant present est command per les justices de retorner tales qui respond que ne soient plusors sufficient deins son bailiffwick moy semble que les justices al prier del ' plaintiff poent agarder tales de circumstantibus destre retorne per le viscount solonque l'entendment de cest estatute . . en curia claudenda sur default d'appearance al nisi prius tales est agard et que apperont ne ount ascun notice del ' terre a que l'enclosure est claime moy semble que en cest case le plaintiff ne prendra benefit de son triall de circumstantibus solonque l'entendment de cest estatute . . al nisi prius en curia claudenda tales de circumstantibus est retorne al prier del ' plaintiff et null del ' principal panell conust la terre a que l'enclosure est claime mes xii del ' tales qui appeeront ount conusans del ' terre moy semble que le plaintiff en cest case ne prendra benefit de son triall solonque l'entendment de cest estatute . . tales de circumstantibus est grant al nisi prius en breif de wast , per que est suppose le wast destre fait en terre et pree et les jurours del ' primer panell ount ewe le view del ' terre mes nemy del ' pree moy semble què en cest case le plaintiff ne proceedera en son triall solonque l'entendment de cest estatute . . en breif de wast touts les jurours forsque deux font default moy semble que le plaintiff ore n'avera tales de circumstantibus solonque l'entendment de cest estatute . . en cui in vita al nisi prius touts les jurours font default issint que nul de eux appiert moy semble què les justices , en cest case ne poient agarder tales de circumstantibus solonque l'entendment de cest estatute . . en precipe quod reddat vers baron et feme et un tierce person tales de circumstantibus est agard al prier del ' plaintiff . et quant le enquest appiert plein les tenants foient demand et le baron et feme font default et le tierce person appiert moy semble què le demandant en cest case ne proceedera a son triall solonque l'entendment de cest estatute . . issue est joine en breif de mesne sur le cause d'acquital per que le demandant sue un venire facias et le tenant un auter , et ambideux soient retorne , et chescun d'eux sue auxy un breif de nisi prius les queux breifs soient auxy mise eins devant mesme les justices de nisi prius moy semble que si ascun des jurours font default que le plaintiff n'avera tales de circumstantibus sur l'un brief ne sur l'auter . . si le viscount retorne nul home de franktenement en le venire facias le plaintiff al nisi prius poet estre ouster de son triall per cest estatute . . en precipe quod reddat sur default des jurours al nisi prius un tales de circumstantibus al prier del ' demandant est retorne sur que l'enquest ove ceux del ' primer jury appiert plein , et le tenant esteant demande fist default moy semble que le demandant ne procedera al enquest sur son tales solonque l'entendment de cest estatute . . al jour de nisi prius en precipe qd reddat le tenant vient et conust devant les justices què il tenust al terme de vie le reversion al roy et prie aide del ' roy moy semble què per ceo le plaintiff poet estre ouste de son tales de circumstantibus per entendment de cest estatute . . en breif de trespass port per deux villeins le seignior plede villenage en eux ambideux sur que issue est joine et al nisi prius le un des villeins luy conust destre villein al' defendant moy semble que le auter villein ne poet aver tales de circumstantibus solonque l'entendment de cest estatute . . en breif de trespass vers deux queux plede què le plaintiff est villein al un de eux sur que issue est joine et al nisi prius cestuy defendant al qui le plaintiff est suppose destre villein confesse que il est frank et nemy villein moy semble que sur default des jurours le plaintiff poet prier tales vers l'auter solonque l'entendment de cest estatute . . sur issue joine del ' terre que est parcell en franchise et parcell en gildable deux breifs de venire facias sur l'un per le viscount et l'auter per le bailiff soient retorne et al nisi prius pur default des jurours le plaintiff prie retorne per le viscount moy semble què ll n'avera ceo solonque l'entendment de cest estatute . . al nisi prius que est retorne per les coroners les jurours font default , et le plaintiff prie tales accordant al cest estatute , et la n'est forsque un coroner moy semble què le plaintiff n'avera ceo a cest temps solonque l'entendment de cest estatute . issint est lou le tales est destre retorne per essiers et touts sont absent forsque un . . sur issue joine un breif de nisi prius est sue per le defendant ove proviso en quel les jurours font default moy semble què le plaintiff poet aver tales solonque l'entendment de cest estatute nient obstant que soit sue per le defendant et nemy per luy mesme . . sur issue joine enter un denison et un alien venire facias est sue solonque les parolls de cest estatute si les jurours font default al nisi prius le plaintiff poet aver tales solonque l'entendment de cest estatute . . al nisi prius touts del ' enquest forsque deux soient challenge pur le hundred per le defendant , et le plaintiff ceo confesse et dit ouster que touts auters deins mesme le hundred sont deins son distress et prie que ceo poet estre trie per deux triers maintenant le quel est trove per les triers accordant per que le plaintiff prie tales de circumstantibus del ' hundred prochein adjoinant moy semble què il doit ceo aver solonque l'entendment de cest estatute . moy semble que le viscount ou auter minister per les parolls de cest estatute poet retorner ou persons ensemblement sur un tales de circumstantibus et ouster ceux tants auters en number que a luy pleist s'ils sont deins le view et nient empanel sur le primer panell car nient obstant que ils sont treits hors del ' primer per challenge uncore ils ne serra retorne sur le tales s'ils soient present deins le view mes ils sont discharge de cest enquest destre prise perenter ceux parties a cest temps . lectio octava . en mes auters lectures adevant jeo aye monstre a vous mon opinion sur cest estatute en queux actions , suits et demands le trial purvey per cest estatute prendra son effect et en queux nemy et en queux courts tiels actions suits et demands doient estre port et commence et en quel lieu le court doiet estre tenus quant l'action serra commence en l'un court et serra mise a son triall en l'auter court et enter queux persons & parties le tryal purvey per cest estatute prendera son effect et queux persons serra dits parties deins le purvey de cest estatute et queux issues serra trie solonque l'entendment de cest estatute et queux nemy et ouster que serra die sufficient franktenement pur un home destre jurour per cest estatute et que nemy et quant le viscount ou auter minister perdra le penalty limitte per cest estatute et quant nemy et qui serra dit sufficient hundredor solonque l'entendment de cest estatute et qui nemy et quant le viscount perdra le penalty de cest estatute pur non retorner de sufficient hundredors per cest estatute et quant nemy et ouster sur quel default ou non appearance des jurours les justices de nisi prius poent agarder tales de circumstantibas solonque l'entendment de cest estatute et sur quel nemy et quant le plaintiff ou demandant avera tales a son prier et uncore quant ceo est retorne il ne proceedera al prisel del ' enquest solonque l'entendment de cest estatute et quant des persons le viscount poet retorner sur un tales solonque l'entendment de cest estatute et pur ceo que les parolls d'estatute soient ouster que les justices sur request fait per le partie plaintiff ou demandant poient agarder tales de circumstantibus solonque l'entendment de cest estatute jeo entend ove vostre pacience de monstre a vous que person plaintiff ou demandant poet prier cest tales solonque l'entendment de cest estatute et que nemy et queux persons le viscount ou auter minister poet retorne sur le tales de circumstantibas et queux nemy . moy semble què chescun esteant plaintiff ou demandant qui poet prier tales accordant al cest estatute poet cybien ceo prier per attorney come en proper person nient obstant que l'estatute riens parle del ' attorney . . le vouchee en precipe qd reddat enter en le garrantie et vouch ouster un estranger qui vient per process et enter en le garranty come un qui ad riens per discent et le primer vouchee maintaine que il ad per discent deins le county de k. sur que issue est joine moy semble què al nisi prius le primer vouchee sur default des jurours poet prier tales de circumstantibus et uncore il n'est plaintiff ne demandant deins le primer action . . en replevin port per trois , le defendant avowa , et its soient al issue sur le avowry moy semble què si un des plaintiffs al nisi prius fist default què les auters deux ne avowera , nec poet ascun de eux prier tales solonque l'entendment de cest estatute . . en formedon port per deux coparceners le tenant plede al issue et al nisi prius l'un de eux fist default moy semble què le auter de eux poet prier tales de circumstantibus solonque l'entendment de cest estatute . . en breif de cosinage port per deux coparceners ils sont al issue et al nisi prius le tenant monstre release de touts actions de lu'n des coparceners puis le darrein continuance le quel el adonques confesse moy semble què cestuy que ne release poet prier tales de circumstantibus accordant al cest estatute .. . en precipe quod reddat port per a. b. major de c. et communalty de mesme le lieu le dit a. b. major & le pluis part del ' communalty al nisi prius ne poient en lour proper persons prier tales sur default des jurours . . en breif de trespass ou auter action port per un evesque ou abbe al nisi prius ils poent en lour proper persons prier tales de circumstantibus accordant a les parolls de cest estatute . . vn distress ove nisi prius en breif de dett què n'est deliver de record est retorne per le viscount al nisi prius , et les jurours font default ; moy semble què le plaintiff ne puit prier tales solonque l'entendment de cest estatute . . vn autiel breif ( come devant ) est deliver al viscount sur quel il retorne forsque d en issues , ou nul issues moy semble que en cest case le plaintiff ne poet prier tales de circumstantibus . . en breif de wast port per le prior de dale qui est datiff & removable et per tiel nosme ad use de suer & destre sue le defendant plede nul wast fait sur que ils soient al issue et devant le nisi prius le prior est remove et un auter est enstall moy semble què le novel prior poet prier tales de circumstantibus nient obstant que il ne fuit plaintiff al temps del ' primer action commence . . en formedon port per deux coparceners devant le nisi prius l'un de eux prist baron et al nisi prius le jury font default moy semble què le sole coparcener poet prier tales de circumstantibus et le baron & feme nemy . . deux coparceners portont un breif de dum fuit infra etatem de le seisin lour ancestor et al jour del nisi prius ils appieront en proper person , et appiert al justices que l'un d'eux est deins age moy semble què nul de eux avera tales de circumstantibus solonque l'entendmenet de cest estatute . . en breif de trespass port per deux , al nisi prius le defendant monstroit un record al court per quel appiert que l'un des plaintiffs est utlage puis le darrein continuance moy semble que nul de eux poet prier tales solonque l'entendment de cest estatute . . en cui in vita port per deux coheirs , al nisi prius le defendant dit què l'un d'eux est moyne professe puis le darrein continuance my semble que l'auter que n'est professe ne poet prier tales solonque l'entendment de cest estatute . . le major del ' ville de dale esteant tenant in comen ove luy mesme d'un acre de terre en quel trespass est fait per j. s. en breif de trespass de ceo al nisi prius le jury font default moy semble que j. s. ne poet prier tales de circumstantibus solonque l'entendment de cest estatute . . sur issue joine sur un ne injuste vexes perenter le signior & le tenant nisi prius est agard moy semble que le tenant poet prier tales de circumstantibus accordant al cest estatute , et le seignior nemy . . deux tenants en comen del ' mannor al que advowson est appendant que est tenus del ' roy en cheif , l'un d'eux morust , son heire deins age , le heire sur office trove grant proximam advocationem al estranger et l'estranger et l'auter tenant en comen port quare impedit et al nisi prius l'un appiert et l'auter fist default moy semble què cestuy qui appiert ne poet prier tales solonque l'entendment de cest estatute . . en breif de dett port per deux executors al nisi prins l'un d'eux fist default moy semble que l'auter qui appiert ne poet prier tales solonque l'entendment de cest estatute .. . en ravishment de gard port per deux qui sue en lour proper persons al jour de nisi prius l'un des plaintiffs esteant la devient surde & mute moy semble què l'auter plaintiff esteant present ne poet prier tales solonque l'entendment de cest estatute . . en precipe qd reddat le demandant fist deux attornyes joint & several et ambideux attorneys esteant present al jour de nisi prius l'enquest fist default et l'un d'eux prie tales , et l'auter prie jour en bank moy semble què en cest case cestuy qui prie le tales doit a son prier ceo aver solonque l'entendment de cest estatute .. . en precipe quod reddat port per un infant il est admitte per le court de suer per deux gardeins et les dits gardeins esteant al nisi prius sur default d'appearance de jurours l'un de eux prie tales et l'auter iour en bank moy semble que ambideux doient prier le tales et nemy l'un deux a per luy . . en precipe quod reddat port per deux et chescun de eux fist several attorney a per luy et al jour de nisi prius les demandants esteant absent l'un des attorneys fist default et non appiert moy semble que cestuy qui appiert ne poet prier tales solonque l'entendment de cest estatute . . en breif de dett port per dean & chapiter del ' pauls apres issue joine le dean morust et devant le jour de nisi prius un auter est eslie dean moy semble que le novel dean ove le chapiter poient per lour primer attorney prie tales solonque l'entendment de cest estatute et uncore cest novel dean ne fuit plaintiff sur l'original . . breif de trespass port per j.s. major & le communalty de dale apres issue joine et devant le jour de nisi prius le major morust et a. b. est elect major moy semble què le novel major & le communalty ne poent prier tales solonque l'entendment de cest estatute . . l'abbe de westminster port breif de trespass le quel il sue per attorney et apres issue joine et devant le jour de nisi prius il est create evesque moy semble què ceo nient obstant il poet prier tales al nisi prius solonque l'entendment de cest estatute . . en breif de dett port per administrator vers j. s. apres issue joine et devant le jour de nisi prius l'ordinary committe l'administration al un auter le quel est monstre al justices desouth le seal del ' ordinary al nisl prius moy semble què ore le plaintiff ne poet prier tales solonque l'entendment de est estatute . . si le viscount sur tales de circumstantibus agard empanel un preist ou deacon s'il ad sufficient franktenement de lay fee il est able person solonque l'entendment de cest estatute . . si le viscount sur tales de circumstantibus agard empanel un infant et un auter d'age de anns et chescun de eux ount sufficient franktenement moy semble què nul de eux est able person solonque l'entendment de cest estatute . . si le viscount sur tales de circumstantibus agard empanel les coroners ou auters capital minister d'ascun citty borough ou ville corporate , ou foresters , ou viridors d'afcun park ou forest de l'roy & royne s'ils ount sufficient franktenement ils soient persons able solonque l'entendment de cest estatute . . si les coroners sur tales de circumstantibus al eux agard empanel le viscount moy semble que il est person able solonque l'entendment de cest estatute . . si les coriners sur tales de circumstantibus a luy agard empanel un home qui est mute mes il poet oyer et ad perfect intelligence et ad sufficient franktenement moy semble que il est person able solonque l'entendment de cest estatute . issint est sil soit cece & mute & il ad son perfect intelligence mes auterment est sil soit surde . . si hmoe qui est excommenge soit empanel sur un tales et ad sufficient franktenement il est person able solonque l'entendment de cest estatute mes auterment est sil soit utlage ou attaint . . home de non sane memory ou alien qui ad sufficient franktenement ou clerk attaint ou home qui est ataint de faue verdict ceux ne soient persons ables destre retorne sur un tales solonque l'entendment de cest estatute . . le fits d'un alien enemy nee delns le terre , et clerk & home qui ust lucida intervalla touts ceux sils ount sufficient franktenement soient persons able destre empanel sur le tales de circumstantibus solonque l'entendment de cest estatute . lectio nona . en mes auters lectures adevant jeo aye monstre a vous mon opinion sur cest estatute en queux actious suits & demands le triall purvey per cest estatute prendra son effect et en queux nemy et en queux courts tiels actions suits & demands doient estre port & commence et en quil lieu le court doit estre tenus quant l'action serra commence en l'un court et serra mise a son tryall en l'auter court et enter queux persons & parties le tryall purvey per cest estatute prendra son effect et queux persons serra dits parties deins le purvey de cest estatute et queux nemy et queuxi issues serra trie solonque l'entendment de cest estatute , et queux nemy et que serra dit sufficient franktenement pur un home destre jurour et que nemy et quant le viscount ou auter minister perdra le penalty limitt per cest estatute pur jurours retorne dein sufficient franktenement et quant nemy et qui serra dit sufficient hundredors solonque l'entendment de cest estatute , et qui nemy et quant le viscount perdra le penalty de cest estatute et quant nemy pur retorner de insufficient hundredors et ouster sur quel default ou non appearance des jurours les justices de nisi prius poent agarder tales solonque l'entendment de cest estatute et sur quel nemy et ouster quant le plaintiff ou demandant avera tales retorne a son prier et uncore il ne proceedera solonque l'entendment de cest estatute et quant le viscount poet retorner sur un tales solonque l'entendment de cest estatute et ouster queux persons poent prier le tales solonque l'entendment de cest estatute et queux nemy et queux persons le viscount ou auter minister poet retorner sur un tales et que serra dits able persons solonque l'entendment de cest estatute et queux nemy et pur ceo què les parolls del ' estatute soient ouster que chescun des parties poient aver lour challenge a les jurours del ' tales issint retorne et annex a le primer panell en tiel manner come s'ils ussoient estre empanel sur le venire facias de trier le issue ore jeo entende ove vostre pacience de monstre a vous queux challenges les parties avera al array on a le poll de tales del circumstantibus retorne et queux nemy et que serra dit principal challenge et que nemy et quant le poll challenge serra treit maintenant sur le challenge et quant nemy . jeo entende per cest estatute nul des parties avera ascun challenge a l'array del ' tales retorne per le viscount mes tantsolement a le poll per les parolls de cest estatute . moy semble auxy què si ascun des parties en ascun action suit ou demand que est triable solonque le purvey de cest estatute challenge ascun poll del ' tales que est retorne pur le hundred , ou pur favour et ceo un foits trie que il apres n'avera ascun auter challenge a mesme le poll pur quecunque cause on matter que il soit a mesme le temps . . si le defendant en ascun action al nisi prius dit què un le tales qui est retorne est villein al demandant ou plaintiff moy semble que ceo est principal challenge , issint est e converso si le plaintiff luy challenge pur ceo què il est villein al demandant . . si un des pollez del ' tales qui est retorne soit challenge pur ceo què il est compere al fits ou file le plaintiff ou defendant moy semble que il est principal challenge . . si un del ' tales soit challenge pur ceo què il fuit compere al bastard le plaintiff ou defendant moy semble què ceo n'est ascun challenge d'aver le jurour treit . . si le defendant challenge un des pollez de tales pur ceo què il avoit un foits marrie le soer le plaintiff le quel al temps que il fuit empanel fuit mort sans issue moy semble que ceo est bon challenge pur favour mes nemy principal . . si un home soit empanel sur un tales qui est marrie al soer ou neece le plaintiff et ad issue per luy et le prisel del ' enquest est respite tanque al prochein jour ' et al jour la feme le jurour est mort et l'issue auxy et quant le jurour vient estre jurè le defendant luy challenge pur mesme le cause moy semble que nient obstant la feme del ' jurour & son issue sont mort a cest temps uncore il est principal challenge . . sur tales agard perenter le major & communalty de dale plaintiffs & j. s. defendant un del ' tales est challenge pur ceo què il est frere ou cousin al major ou al un del ' communalty moy semble que ceo est principal challenge . en mesme le manner est del ' dean & chapiter . . en precipe port per le abbe de westminster vers un auter si le defendant challenge un del ' tales pur ceo què il est cosin ou frere al un des commoignes del ' dit abbe moy semble que ceo est principal challenge . . si un del ' tales soit challenge per le plaintiff ou defendant come cousin , le quel est cosin hors de les degrees del ' marriage issint que il ne puit inheriter a luy a que le cousinage est allege ceo est un challenge pur favour mes nemy principal . . si un del ' tales soit challenge per le defendant pur ceo què il ad breif d'appeal ou breif de trespass de batery pendant perenter luy & le jurour moy semble que il est principal challenge mes si soit en breif de dett ou trespass ou hujusmodi auterment est . . home ad iudgment de recover per verdict en precipe qd reddat le quel est reverse per breif de error et en auter precipe pur mesme la terre sur issue joine un del ' tales fuit challenge de ceo què il fuit un des jurours qui done verdict vers luy en le primer action moy semble què ceo est principal challenge . . sur un tales de circumstantibus retorne un des tales est challenge per le defendant pur ceo que il avoit prise deniers del ' plaintiff a donor verdict pur luy moy semble que ceo est principal challenge . . si un del ' tales soit challenge per ascun des parties de ceo què il fuit auter soits attaint de faux verdict , ou condempne en action de forger de faux faits moy semble què ceux sont principal challenges . . sur tales agard en breif de trespass d'ont le plaintiff fuit endyte devant al fuit le roy si le defendant dit què le jurour fuit un des primer endytors moy semble que ceo u'est principal challenge . . sur decem tales de circumstantibus agard l'un de eux est challenge de ceo que il fuit un foits attaint en decies tantum moy semble que ceo nest principal challenge , ne pur favour . . si un des tales soit challenge de ceo que il fuit un des les endytors de a. b. et puis per auter verdict luy acquitt issint que il avoit done contrary verdict en un mesme chose moy semble què ceo nest ascun challenge pur treiter le iurour . . en precipe qd reddat port per deux coparceners l'un de eux est summon et severed , un del ' tales est challenge pur ceo què il est cousin ou gossip al cestuy que fuit summon & severed moy semble que ceo est principal challenge . issint en precipe port per auters qui ount joint cause d'action . . en breif de entry sur disseisin en le per un del ' tales est challenge pur ceo que il est mesme le person per que le primer entry est suppose moy semble que ceo est principal challenge . . en breif be maintenance un del ' tales est challenge pur ceo que fuit un des jurours en le primer action en que le maintenance est suppose moy semble que ceo nest principal challenge ne pur cause . . en brief de conspiracy un del ' tales est challenge pur ceo que fu● un des primer endytors sur quel il fuit acquitt moy semble que ceo est principal challenge . . en brief de trespass pur prisel certein deniers de le plaintiff un un del ' tales fuit challenge pur ceo que il est comen hosteler de larons et est demurrant al un lieu que est notorious & suspitious de male fame moy semble que ceo est principal challenge . . vn panell sur suggestion fait al court est fait del ' hundred prochein adjoinant a le hundred ou le visne est alledge , de quel panell trois sont jurès sur le principal et sur tales agard un de eux est challenge pur ceo que il n'ad riens deins le hundred ou le visne est alledge moy semble que cest challenge n'est bon per les parolls de cest estatute . finis . the cases of mr. risden , in his reading in august , . upon the statute of the h. . cap. . of avowries . london , printed for norman nelson at grayes-inn gate in holbourn , . l'estatute de anno xxi . henrici octavi , cap. xix . de avowries . where as well the noblemen of this realm , as divers other persons by fines , recoveries , grants , and secret feoffments and leases , made by their tenants to persons unknown , of the lands and tenements holden of them , have been put from the knowledg of their tenants , upon whom they should by order of the law make their avowries for their rents , customs and services , to their great losses and hinderances : ¶ be it therefore enacted , established and ordained by authority of this present parliament , that wheresoever any mannors , lands , tenements , and other hereditaments , be holden by any manner of person or persons by rents , customs or services , that if the lord of whom any such mannors , lands , tenements , or hereditaments be so holden , distrein upon the same mannors , lands or tenements for any such rents , customs or services , and replevin thereof be made , that the lord of whom the same mannors , lands , tenements or hereditaments be so holden , may avow , or his bailiff of servant make cognizance or justifie for the taking of the said distresses , upon the same lands , tenements or hereditaments , so holden , as in lands or tenements within his fee or seigniory ; alleadging in the said avowry , cognizance and justification , the same mannors , lands and tenements to be holden of him , without naming of any person certain , to be tenant of the same , and without making any avowry , justification or cognizance , upon any person certain : and likewise the lord , bailiff or servant , to make avowry , justification or cognizance in like manner and form upon every writ sued of second deliverance . and also be it enacted by the said authority , that every avowant , and every other person and persons that make any such avowry , justification or cognizance , as bailiff or servant to any person or persons in any replegiare or second deliverance for rents , customs or services , or for damage fesant , or for other rents or rents upon any distress taken in any lands or tenements , if the same avowry , cognizance or justification be found for them , or the plaintiffs in the same be non-suited or otherwise barred , that then they shall recover their damages and cost against the said plaintiffs , as the said plaintiffs should have done or had , if they had recovered in the replegaire , or second deliverance found against the said defendants . and be it also ordained , that the said plaintiffs and defendants in the said writs of replegiare , or writs of second deliverance , and in every of them , shall have like plees , and like aid and prayers in all such avowries , cognizances , and iustification , plees of disclaimer only excepted , as they might have had before the making of this act , and as though the said avowry , cognizance , or justification had been made after the due order of the common law. and it is further enacted by the said authority , that all such persons as by the order of the common law may lawfully joyn to the plaintiffs or defendants in the said writs of replegiare , or second deliverance , as well without process as by process , shall from henceforth joyn unto the said plaintiffs or defendants , aswell without process as by process , and to have like pleés and like advantages in all things , disclaimer only excepted , as they might have done by the order of the common law before the making of this act. les cases de monsieur risden en son lecture in august . sur l'estatute de h. . cap. . de avowries . lectio prima tertio augusti sur les parolls del statute ( that wheresoever any mannors , lands , tenements , and other hereditaments be holden of any person or persons ) il monstre , what mannors , lands , tenements and hereditaments may be holden ; what person and person may hold such lands , tenements and hereditaments , and of what person and persons such lands , tenements and hereditaments may be holden within the purview of the statute , and what not . . deux mesnes per d. les mesnes font done en tayle donee esteant implede , vouch a. et b. les donors , a. disclaime , b. enter en le garranty : le donee tient de b. per fealtie tantum , mes ne tient ascun terres deins l'estatute . . feme donee in tayle de mesnaltie tenus per d. marrie ove tenant , seignior release al baron le baron devie , la feme devie , un estranger enter , l'issue distreine , il tient del donor per sealtie tantum , mes tient nul terre deins l'estatute . . estranger levie fine sur conuzance de droit come ceo &c. al b , de son terre demesne , et per fait enter eux le use est declare al a. et ses heires , donee enfeoffe deux ove garrantie al un et ses heires , donee et cestuy a que le garrantie est fait morust , et assets descend al issue , l'issue tient un moitie del ' seignior , survivor le feoffee tient le auter moitie , mes a tient nul terre deins l'estatute . : mesne tient per d. et seignior ouster per d. mesne en consideration de l. destre paye bargaine et sale le mesnaltie , son feme est attaint de felony et procure sa pardon , mesne devie et sa feme marrie bargainee , que assigna le tierce part del ' mesnaltie pur sa dower , et morust sans heire , feme serra attendant pur , mes ne tient ascun terre ou hereditament deins l'estatute . . le mesne en consideration de natural amour , que il port a sa soer del ' demy sanke , et in consideration que un a. marria sa dit soer , covenant destoire seisie al use del a. et sa dit soer in tayle , le remainder al ayel a. en fee , mesne morust , le marriage est solemnize , pier a. est attaint de treason et execute , ayel morust , a tient tenements et hereditaments de seignior deins cest estatute . . copyholder en feé surrender , et per fait declare que l'use apres son mort serra al son puisne fits en tayle rendant rent , et pur defalt de payment un re-entrie , copyholder morust , rent est arrere , le heire morust , et son heire enter , le heire tient de seignior , mes ne tient ascun terre deins l'estatute . . copyholder en feé surrender al use del ' a. pur vie remainder al b. en fee , seignior grant le terres per copy al c , et apres admit a. en fee , a. fait lease a comencer al michaelmas , et morust , copyholder morust , b. tient de seignior , mes ne tient terres deins cest statute . . seignior de terres ancient demesne per d. rent , il et estranger disseise le tenant , seignior confirme le terres al estranger , a tener per comen ley per d. le disseisor tient del ' seignior per d , mes tient nul terre deins l'estatute . . baron seisei de terres en droit sa feme , il et sa feme lessont al a. et b. pur lour vies , lessees ceo lessont al c. pur vie de a. baron ad issue , feme devie , baron enter , seignior release al issue , baron tient de seignior paromount , deins cest statute . . pere enfeoffe son puisne fits , sur condic'on que il enfeffera auter absolutement , leigne fits enter , puisne fits re-enter , leigne fits tient le terre , mes ne tient ascun terre deins cest statute . . roy ayant terre per recusancie , ceo grant ouster , quam diu in manibus nostris fore contigerit , le recusant esteant donee in tayle , est attaint en praemunire , le donee tient del ' seignior , mes ne tient ascun terres deins cest statute . . a. b. et c. iointenants de terre devisable , a. release al b , b. devise la terre al hospital de saint bartholomew , c. et b. devie , mayor et comminaltie de londres , tient le tierce part de terre deins cest statute . . mesne levie fine , le heire de conusor est forejudge en breif de mesne , tenant enfant fait feoffment rendant rent durant son nonage , que al pleine age accept le arrearages , feffee tient del ' seignior paramount , deins cest statute . . terre est done al alien et al heires son corps , sur condic'on d'aver fee , office est trove , alien performe le condition , l'alien tient le terre deins cest statute . ☞ issint sur les parolls de cest division , quant al primer part de cco , sc . what lands , tenements or hereditaments may be holden , il ad estre tenus que si seignior mesne et tenant sont , que le mesne tient deins cest statute , car coment que le mesne n'ad riens en le terre del seignior , et le seignior poit distreine pur les services , et si le mesne devie sans heire , ou son heire deins age , seignior avera breif d'escheate , ou breif de gard supposant que il tient le terre , nemy le mesnaltie ; mes si seignior mesne et tenant sont , et le mesne dona le mesnaltie en tayle rendant rent , le donee tient del donor , mes ne tient ascun terre deins l'estatute , car la il ne tient le terre mes le mesnaltie . copyhold terre n'est ascun terre tenement ou hereditament tenus deins cest statute , ancient demesne terre est hors del statute . terre en possession le roy coment que soit pas temporarie estate durant ceo temps , nest tenus deins cest statute . touts choses queux sont parcell d'un mannor poient estre tenus deins cest estatute , contrarie de choses regardant appendant appurtenant al mannor come villein commons , chimin , courts leets , estraies , waifes , &c. advowson in grosse que commence rac̄one structure poit estre tenus deins cest estatute , contra d'advowson que commence ratione fundationis vel donationis . quant al second part de cest statute ☜ quel person poiet tener , il ad estre tenus , que coment , les parolls del ' statute sont , where any lands are holden , that the lord of whom the lands are so holden , may avow upon the lands so holden , as upon lands within his fee and seigniory , touts queux parols seeme d'extender enter le veray seignior et le veray tenant , uncore donee in tayle , lessee pur vie , ou ans , ou tenant per le curtesie teignont deins cel statute , mes tenant en dower ou el est attendant al heire per le tierce part des services , tenant a volunt ou sufferance , tenant per statute ou elegit , ne teignont deins cest statute , mes si donee in tayle morust sans issue et sa feme est endowe el est tiel tenant en dower que tient deins cest statute . tenant en frankalmoigne ne tient deins cel statute , contrariè de son alienee , mes tenant per divine service et auxy son alienee tient deins cel statute . moigne est un person que poiet tener deins cel statute , et ceo est solement in case de disseisin . tiels persons queux ne poient purchaser , mes al use d'auters , uncore poient tener deins cest statute , car ils sont tenants in facto , coment nemy en droit . tenants per tort , come disseisors abators intrudors et tiels , teignont deins cest statute , car ils sont tenants in facto , coment nemy en droit . corporation tient deins eel statute , uncore n'est parson , mes corps politique . doneé in tayle ou frankmarriage discontinue et devie , lour issues teignont deins cest statute , car ils sont tenants en droit . mesme le ley de feoffor devant notice coment que il nest tenant neque en droit neque en fait , mes vouchee apres entre en garranty , ou tenant qui alien pendant precipe vers lui , coment que ils sont tenants al ascun purposes , uncore ne teignont deins cel statute . cestuy que use al comen ley ne tient deins cest statute , car il ne fuit tenant en droit neque in fait , mes feoffor devant notice , coment que il nest tenant neque en fait neque en droit tient deins cest statute , come devant est expresse . tenant per estoppell ne tient deins cest statute . quant al tierce part de cest division , ☜ de quel person terre poiet estre renus diens cest statute , il ad estre tenus que cestuy que n'ad que particular estate en le seigniorie come tenant in tayle , pur vie , ou ans , est person de quel terre poiet estre tenus deins cel statute , auxy tenant per statute ou elegit de seigniorie ou reversion sont seigniors deins cest statute . auxi tenant en socage coment que il n'ad riens mes al use le heire , et est accomptable , uncore est seignior deins cest statute et uncore nul de eux poiet tener deins cest statute come ad estredit devant . si executors ou administrators distreine pur arrerages due al temps del ' mort le testator , ou intestate , ils ne sont seigniors ne avoweront deins cest statute . corporac̄on est person de quel terre poiet estre tenus deins cest statute . roy n'est person de quel terre poiet estre tenus , deins cest statute , eo que replevin ne gist versus luy . lectio secunda septimo die augusti . pur ceo que les parolx del ' statute sont , wheresoever any mannors , lands , tenements , or hereditaments be holden by any person or persons , by rents , customes or services al cest jour , il monstre , what rents , customs and services are meant intended and provided for within the purview of this act , and what not . . tenant conust statute et morust . seignior seisa le gard , et continua possession del ' terre ouster son terme , conusee ad la terre deliver a luy en extent voyage royal est sait ; seignior grant le seigniorie , escuage est assesse , legrantee a vera sum̄ assesse mes ceo n'est rent service , ou custom deins l'estatute . . fits disseise son pere , et apres marrie , per fait testifiant le assent son pere , endowe sa feme de rent en fee , hors de terre , feme apres attaint procure son pardon , pere et fits devie , roy grant le rent a tener per fealtie , et rent , et apres grant le seigniorie , patentee avera le rent , mes ceo n'est rent ou service deins l'estatute . . seignior mesne et tenant le tenant tient per s. et mesne per s. seignior disseisa le tenant , et lessa pur vie , le mesne grant le surplusage , lessee pur vie devie , tenant re-enter , il tient del ' mesne , et rendra le rent al grantee , mes ne tient per ascun rent ou service deins cel statute . . ayel pere et fits , ayel devie , seignior encroach sur pere , pere devie , fits endowa sa mere , versus quel , ayeless recover en breif de dower , et morust , mere ne tient per ascun rent ou service deins cel statute . . doneé en frankmarriage de terres en borough english , enfeffa a , que enfeffe puisne fits le donee , pere devie , donor distreine pur faire fits chivaler , mes ceo n'est rent , ou service , ou custome deins l'estatute . . home ad issue fits per divers venters , et morust leigne grant rent charge al b. et morust sans issue , l'auter enter et done le terre al a. en tayle b. disseisa a. et enfeoffe l'heire a , a. devie , b. n'avowa deins cest statute . . seignior mesne et tenant per harriot service , mesne est attaint de felony , seignior confirme al tenant a tener quite de touts manner de services , mesne reverse le attainder , tenant fait feoffment in fee ; et morust , mesne n'avowera pur le harriot deins cest statute . . gardein sur assignment de dower , reserve rent pur le surplusage les heires esteant parceners veignont al plein age , et agree l'assignment ; l'un parcener disturbe le tenant de sa comon , l'auter distreine , el avowera pur le moitie del ' rent , mes rie avowera deins l'estatute . . a. tenant per service a repaiter un pont , est disseisie per b , a. purchase le seigniore et apres release al b. tout son droit en le tenancie , savant le seigniorie pur anns , a. ad un inheritance en le seigniorie et avowera deins cest statute pur cest service , mes si il distreine , et rescusse soit fait , il n'avera assise . . tenant tient per d. et mesne per s , tenant fait done en frankmarriage , donees font homage , le mesnaltie descend ' al donor , donor avera s. rent mes ceo n'est rent ou custome deins cest statute . . seignior et tenant per suit a son molin , pere le seignior purchase un acre del ' tenancie en taile , et morust , tenant eme blees , et eux mola aylors , seignior ne distreine ne avowera deins cest statute . . deux joint-mesnes per s , seignior encroacha s , l'un mesne prist le tenant al baron , seignior grant seigniory , l'auter mesne attorne , le grantee ferra deux avowries , mes ne avowera deins cest statute . ☞ issint sur les parols de cest division , primerment quant a cel paroll , ( rent ) il ad estre tenus que si soit seignior mesne et tenant , et mesne done le mesnaltie en tayle rendant rent , que ceo est bone reservation , et bone rent , mes durant le continuance del ' tenancie , ceo n'est ascun rent deins cel statute , car sont auter parols deins l'estatute , que s'il distreine , et replevin est port què it avowra , issint què l'estatute extende solement a tiel rent pur quel distress poiet estre prise , et icy durant le continuance del ' tenancie nul distress poiet estre , mes si le tenancie escheate , tunc il distreine pur touts arrerages , et avowe deins cest statute , auxi si sont seignior mesne ct tenant , le mesne tient per rent deins cest statute . car per ceo , le seignior poiet distreine sur le tenancie . rents charges sont hors de cest statute , car nul avowrie pur eux fuit sur le terre , come sur terre charge ove lour distresse . rents distreinable de common droit , come pur surplusage de mesnaltie , rent sur egaltie de partic'on , sur assignment de dower , rent que tenant en dower paya al heire en respect de attendancie seigniories del ' mesne , siegniories save per l'estatute de chaunteries et tiels sont hors de cest statute . il ad estre tenus que si roy done rent charge a tener de luy per rent et services , que ceo en case de roy est bone tenure , et que si le roy grant cest rent et service ouster , que patentee avera le rent mes il n'avowera pur ceo deins cest statute . si home fait done en tayle rendant rent , et donee suffer comon recovery , le rent remaine , mes n'est rent deins cest statute . touts rents secks sont hors del ' statute , car ils ne sont distreinable , et avowry ne poiet estre , mes lou il est distresse . rents et tenures gaine per estoppell , ne sont rents deins cest statute , mesme le ley de rents gaine del ' tenant per encroachment . quant al parols ( services ) il ad estre tenus que touts casual et accidental services , come escuage , castle gard , aid a faire fits chivaler , ou a file marrier , releife cybien apres le mort del ' tenant per chivalrie , come per socage tenure sont hors de cest statute , mes homage et fealty coment sont casual et accidental services sont deins cest statute eo que sont corporal services . harriot service n'est deins cest statute , eo que nul avowry fuit destre fait al comon ley pur tiel service sur le person mesme . la ley ou tenant est a payer fine sur chescun alienac'on , ceo n'est service deins cest statute . tenure per divine service est service deins cest statute . tenure a repairer un pont ou un haut voy , ou un beacon , que sont tenures pro bono publico , tenure a marrier un poor virgin annualment que est worke de charitie , tenure a trover un preacher ou provider les ornaments de tiel esglise queux sont work de devotion ; en touts ceux cases , coment le seignior n'ad ascun particular benefit per le service uncore sont services deins cest statute . tenant a repairer un castle ou private meason del ' seignior sont tenures et services deins cest statute , et uncore ils gisont solement en feasance , mes fi seignior distreine pur negligent feasans de ceux services et rescous a luy soit fait il n'avera assize . tenure per suit al court , ou per suit al molin le seignior , ou pur arer ou reaper le corne del ' seignior ne sont services deins cest statute , eo que le chose destre fait esteant passe , ne poiet estre fait ou recover , mes solement in defect de ceo d ' aver un amercement que est auter chose que le tenure et service . harriot custome n'est custome deins cest estatute . home devant l'estatute de quia emptores terrarum dona terre al a aver l'un moitie a l'un et ses heires , et l'auter moitie a lauter et ses heires rendant s. rent ; ou a cest jour dona terre a a aver et tener l'un moitie a l'un en tayle et l'auter moitie a l'auter en tayle rendant s. rent feoffees et donees ne teigne per ascun rent deins cest statute , eo que al comon ley nul avowrie en cest case fuit destre fait sur le person , car joint avowrie ne poiet estre fait sur tenants en comon , et several avowries sur le person ne poient estre fait , eo que n'est que un rent , et nemy severall rents , et nul avowrie est deins cest statute , mes lou l'avowrie devant l'estatute fuit sur le person : mes si soit seignior et tenant , et tenant al ceo jour fait feoffment del ' moitie , coment le rent ne serra apportion , uncore feoffee tient per rent deins cest statute , eo que l'avowrie devant l'estatute fuit destre fait sur le feoffee pur tout le rent . si terre soit lesse a volunt rendant rent ceo n'est rent deins cest statute , eo que al comon ley en ceo case l'avowrie ne fuit destre sur le person . lectio tertia decimo die augusti , pur ceo que les parols del ' statute sont ouster , that if the lord distrein , and replevin thereof be sued , the lord of whom the said lands or tenements or hereditaments be so holdeu , may avow , or his bayliff or servant make conusance or justifie for taking the said distress upon the said lands , tenements or hereditaments ; as in lands and tenements within his fee and seigniory , al cest jour il est monstre in queux acc'ons suits et courts le seignior avowera , en queux cases ferra conusance , et en queux cases il justifiera deins cest statute et en queux nemy . . seignior et tenant , composition est fait que tenant paya al seignior s. pur touts services , seignior devisa le seigniory en tayle , et devise ouster que ses executors vendont le reversion , et morust , tenant en breif d'entrie voucha donee , et comon recoverie est ew , l'executors vendont le reversion al , donee morust sans issue , vendees en assise pur rent sont summon et sever , l'un vendee morust , l'auter distreine , tenant ad deliverance en countie coutt , que est remove per recordare , le vendee avowera deins cest statute . . pere seisei de acres dona l'un a son fits et a sa feme en tayle rendant rent et morust , le baron esteant empleade voucha luy mesme pur saver l'estate tayle lieu est enter et recoverie ew , baron devie , feme enter en l'auter acre , le heire distreine , et le pleint est remove per tin accedas ad curiam , le heire ferra avowrie deins cest statute . . tenant en tayle rendant rent , donee suffer comon recoverie , al use a. pur vie , le remainder al b. pur vie , le remainder al h. en fee , a. purchase le rent en fee , et apres ceo grant a h. et ses heires et morust , b. appere al replevin sans ascun distresse prise ou replevin sue , h. n'avowera deins cest statute . . seignior et tenant per fealtie et rent , a. recover le rent vers seignior , a. distreine , et en avowrie ad judgment irrepleg ' a. distreine avers pur mesme l'arrerages , viscount fait deliverance , mes ne retorne le breif a. n'avowera deins cest statute . . home lessa put anns et apres lessa mesme le terre pur ans a comencer apres fine ou surrender del ' primer lease rendant rent , et pur defalt de paiement un re-entrie , le lussee grant le reversion al b. pur vie le remainder al c. en fee , lessee pur anns surrender , rent est demand , est arrere , b. accept le rent et morust , c. enter , a. re-enter , rent encurre durant primer anns , a. ad auter beastes en withernam c. n'avowera deins cest statute . . seignior et iointenants per homage et rent , a. purchase part de b , b. et a. lease pur vie , remainder en tayle , lessee pur vie purchase part de b , et ceo grant al lessors , que distreine , et seignior nonsuit le plaintiff en replevin , lessors ount breif de retorno habendo , viscount retorne averia elongata , et sur ceo auter avers sont deliver in withernam , lessee port second deliverance , lessors avowera deins cest statute . . seignior et tenant per s. rent , a. purchase le seigniorie , et grant le teirce part de ceo al b , et apres en consideration de natural amour que il port a c. evesque de exon ' esteant son frere covenant destoier seisie al use luy et ses successors del ' moitie del ' seigniorie què il purchase , evesque distreine , et mesme mitta ses avers in le pound en lieu des avers le tenant , evesque avowera pur s. deins cest statute . . seignior et tenant per s. rent , ove proviso que serra loyall al seignior et ses heires a distreine en black acre seignior grant le rent pur vie , ove condic'on que si grantee paya l , que il avera le seigniorie a luy et ses heires , le l. est paye , grantee distreine en black acre il n'avowera deins cest statute . . a. et b. parceners , a. prent feme et morust sans issue b. endowa feme del'teirce part del ' moitie , b. release al feme et ses heires , feme enter en tout le terre , et ceo lessa al fits b. pur vie , rendant rent , b. devie , rent est arrere , lessee surrender , feme avowera pur parts del rent deins cest statute . . home per fine grant et render acres pur ans rendant rent de s. sur condic'on , que si le conusee paya l , que il avera fee , en l'un acre , condic'on est performe conusor distreine , conusee claime fee en cest acre conusee n'avowera , mes ferra justification deins cest statute . . home lesse acres pur vie rendant rent sur condic'on que si le lessee ne paya l , que il avera l'un des acres forsque pur ans , rent est arrere , et le l. unpaye , lessor distreine en un acre , et lessee claima a tener ceo pur ans , lessee devie , l'ans continue , lessor distreine arrere , il avowera pur le primer distresse , mes nemy pur le deins cest statute . . deux iointenants font lease pur ans rendant rent , pere del un enter , et morust seisie , lessee fait feoffment de tout al feme covert , baron disagree pur un acre . lessors font special entrie en l'auter acre , bayliffe distreine , en replevin bayliff ferra conusance mes n'avowera deins cest statute . issint sur cest division primerment quant a ceux parolls ( actions suits ☜ et courts ) il ad estre tenus que si distress soit prise , et deliverance est fait en countie court et sur ceo un pleint est enter , que est remove per recordare que ceo est action suit et court deins cest statute et uncore l'estatute parla solement de replevin et second deliverance , de replevin est breif quel breif original issuant solement hors del ' chancery retornable en bank le roy , ou comon bank et nemy aylors , et second deliverance est original judicial , ground sur le primer breif , et doit issuer hors de cest court ou le primer breif est dependant . mesme le ley si deliverance soit fait pur deliverance hors del ' hundred court , et apres remove per pone , ou hors de court baron remove per accedas ad curiam , et touts ceux cases coment ils sont hors del ' parols et letter del ' statute , uncore sont deins l'entention et equitie de ceo car deliverance hors de ceux inferior courts insual e forme de replevin et agrea en substance . auxi il ad estre tenus què l'estatute extend al pleints et avowries en ceux inferior courts , uncore l'estatute parla solement de replevin et second deliverance , què ne poient estre suès mes hors de court de record , neque poient estre retornable mes en court de record , car le mischief est tout un , et si le partie que ad ses avers prise , attendera tanque il procure un breif de replevin hors del ' chancery , les avers en le mesne temps poient perish . si le seignior appere al replevin sans ascun distresse prise , ou replevin sue , il poiet avower deins cest statute et uncore l'estatute parla de distress prise et replevin sue mes consensus partium tollit errorem . mesme la ley si tenant declare de prisel de ses avers , ou nul avers fueront prises ne replevin sue . mes si distresse soit prise et replevin sue , et viscount ne retorne le breif ceo n'est deins cest statute , car sans retorne del ' breif le defendant n'ad jour en court de faire avowrie , ou de nonsuter le plaintiff . mesne la ley si breif de replevin foit defective pur defalt de forme , ou ad faux latin. plaint ou deliverance fait hors de copyhold mannor court , un hors del ' court de ancient demesne n'est deins cest statute . seignior distreine , tenant sue replevin , viscount retorne averia elongata , per que withernam est agard , et touts les avers del ' defendant sont prises en withernam semble què ceo est un acc'on et distresse deins cest statute , et uncore cest acc'on est un withernam , et les avers sont auters què fueront distreine al primes , le reason est eo què le withernam depend sur le primer breif , et l'auters prises en withernam veignont en lieu des avers primer prises , et si le defendant en replevin ad breif de retorno habendo , sur què viscount retorne averia elongata , et sur ceo auters avers del'defendant sont deliver in withernam sur que defendant port second deliverance , ceo est un acc'on deins cest estatute , car le second deliverance serra ' des avers primes prises , et nemy des avers prises sur withernam . seignior mesne et tenant , seignior distreine mesne sur notice mist eins ses avers , et apres port replevin , ceo est distress , et suits deins cest statute , et uncore ceux avers , ne cest partie ne fueront distreine . ☞ quant al differences de avowries , conusances , et iustifications , il ad estre tenus , lou le defendant est d'aver le chose pur què le distresse est prise la , coment què le estate , què dona le distresse , determine devant avowrie , uncore il avowera come si seigniorie determine per escheate ou rent cease per effluxion de temps , ou ascun auter determinations . mes si seignior distreine pur homage ou pur rent et devant avowrie en le primer case , le tenant devie , et en le second case le feffee fait notice , et tender l'arrerages , le seignior ferra justification . seignior ou lessor ne unque ferra conusance , ne bayliff ou servant ne unque ferra justification ; mes en ascun cases , bailie ou servant ferra avowrie , et ceo est lou il est collector del ' rents son seignior per custom , come destre cheif dozoner , ou destre reeve per election ou turne . baron distreine en droit sa feme , en replevin vers luy solement , il n'avowera , eo que le feme en que le droit est , est partie , mes il ferra conusance et uncore ceo est encounter le nature del ' conusance , què le partie mesme qui est d'aver le chose pur que le distresse fuit prise , ferra conusance . lectio quarta duodecimo die augusti . entant que les parols del statute sont ouster . that if the lord of whom the lands are so holden , do distrein upon the same land , that then he may make avowry , &c. alceo primer , ilest monstre quel chose poiet estre distreine , et sur quel terte tiel disttess poiet estre prise , et sur quel nemy , deins cest statute . si seisins et auter observances en avowries al comon ley sont requires en avowries sur cest statute . . a devise terre al b. pur vie , remainder al heires del ' corps a , remainder a son file en fee , et a. b. morust , leigne fits a. morust , l'issue al plein age devant son marriage satisfie , lessa al baron del ' file pur vie , reservant l'ancient rent ove garrantie , et apres grant le reversion al c , què ceo grant al lessee , l'issue morust , sans issue , baron devie , feme lessa pur ans , seignior enter , feme distreine avers del ' lessee alant sur le comon , c'est bone distresse , mes nient prise sur terre deins cest statute . . a. en considerac̄on d'un marriage ove b. covenant destoier seisie al use de luy mesme tanque marriage , et apres al use b , a. lessa pur ans ove proviso a distreine en black acre , le marriage prist effect , a. devie , lessee grant son terme sur condition , le condic'on est enfreint , grantee fait feoffment , b. enter , grantor re-enter , b. pur rent encurre durant son possession distreine en black acre , le distresse est bien prise , mes nemy sur terre deins cest statute . . seignior per chivalrie n'ad estre seisie per ans , tenant recover en assise vers seignior , mesne devie , seignior seisa le gardship , tenant alien en mortmaine , seignior enter , mesna al pleine age enter sur luy , seignior distreine l'avers del ' tenant alant sur le common , ceo est bone distress , mes nient prise sur ascun terre deins cest statute . . tenant enfeoffe son seignior , esteant deane et chapter , roy deins l'an enter , e't per ses letters patents bargaine et vende le terre al a , al use b. a tener del ' cheif seignior le deane et chapiter distreine , mes pur defalt de seisin n'avowera deins cest statute . . lesseé pur vie lessa pur vie , remainder al lessor et seignior en fee , lessor enter , seignior ad retorne irreplevisable , seignior distreine l'avers le tenant , que veignont sur le terre per escape , c'est bone distresse et sufficient seisin de avower deins cest statute . . disseisor de tenant en tayle lessa al a. b. et c. successivè pur lour vies , remainder al b. en fee , uncle collateral del ' donee release al r. ove garranty et morust , a. morust , donee enter , et suffer comon recovery , donor avowera sans ascun seisin deins cest statute . . baron et feme lessont terre la feme pur vie , rendant rent , remainder al b. pur vie ; lessee est disseise , baron dtvie , feme release al disseisor touts acc'ons , disseisor morust seisie , et apres le terre descend al feme , feme receive le rent , lessee devie , feme enter , et lessa pur ans rendant rent , b. enter , feme ad sufficient seisin , mes n'avowera deins cest statute . . tenant voucha le heire al comen ley , et puisne fits en borough english , demandant ad judgment et execuc'on , et le tenant ouster , puisne fits enter en le terre & recover en value . l'heire re-enter , le rent serra apportion , mes le distresse ne fuit prise sur ascun terre deins cest statute . . pendant un precipe de terre en borough english estranger enter et morust seisie , puisne fits lessa ceo et auter terre rendant un esperver , demandant ad judgment et enter , lessor morust ayant fits , puisne fits distreine sur l'auter terre , il avera un esperver , mes n'avowera sur cest distresse deins cest statute . . feoffeé ove garrantie a luy ses heires et assignes lessa pur vie lessee esteant implede vouch le lessor , et ad en value un acre tenus del ' feoffee , lessee fauxifie le recoverie , et enter , seoffee enter en le terre done en value , feoffee distreine avers le lessee , il poiet plede cest matter en barre del ' avowrie pur cest statute . . tenant en especial tayle ad issue files per severall venters , disseisor lessa pur vie sur condic'on d'aver fee , donee release all lessee ove garrantie en forma predicta pere devie , condic'on est performe , assets descende , lessee lessa pur vie rendant rent , leigne file enter , lessor distreine en l'un , il avowera sur tout le terre deins cest estatute . . doneé en tayle lessa pur vie , et apres disseise lessee , et enseoffe b. son frere , lessee re-enter et morust , donee morust , b. suffer recoverie , donor release al cestuy que recover , b. morust sans issue , l'issue en tayle revers le recovery , donor distreine et avowera deins cest statute . ☞ issint sur le parols de cest division quant al chose que poiet estre distreine , il ad estre tenus , què fuit bone distress et puit droituralment estre prise per voy de distresse deyant l'estatute est bone distresse et poiet estre distress per cest statute . car cest statute ne differ del ' comen ley en le nature de distress , ne en le manner ou le usage de distress , mes touchant le lieu ou le distress serra prise , ad fait novel ley , er pur ceo quant al cest part , ou le distresse est destre prise , il ad estre tenus , si seignior et tenant sont , et le tenant ad comon en le wast del seignior ut appendant ou appurtenant a son tenement , le seignior al comen ley poit distreine l'avers le tenant usant le comon , mes cest distress nest prise fur ascun tenement deins cest statute , car les parols del ' statute sont , si'l distreine sur le terre tenus , et replevin de ceo soit sue , que il poit avow upon the same lands , as upon lands within his fee and seigniory , alledging in his said avowry the same lands to be holden of him , et uncore cest terre ne'st tenus de luy mes est le freehold , wast , et demesne del ' seignior , et le tenant ad solement en ceo , un comon pur ses avers que n'est tenus . mes si seignior et tenant sont de wast , et le tenants del ' tenant et auter inhabitants pur cause de vicinage ou auterment ount comon en le wast , seignior poit distreine avers del ' tenant alant sur le wast , et avow deins cest statute , mes les avers del ' comoners il ne poit distreine al comen ley , ne deins cest estatute . advowson que n'est que jus presentandi poit estre tenus deins cest statute , et si les avers de patron veignont sur le glebe terre , ou sur le cemiter ils poient estre distreine per le seignior deins cest statute , mes les avers del ' incumbent ou de ascun auter ne poient estre distreine deins cest statute , mes en ceo est un difference ou le parsonage , commence rac'one structure , ou rac'one fundac'onis , ou dotationis sil ' commence rac'one structure lavers l'incumbent ou de ascun auter poient estre distreine , mes nemy en le auter cases . seignior et tenant , donor et donee , lessor et lessee de acre de terre ove proviso a distreine en auter acre , le seignior , donor , ou lessor poient distreine en ceo auter acre , mes ne poient avower sur ceo distress de cest statute . home fait done en tayle , ou lease pur vie , de acres rendant rent , le rent est arrere , et donor ou lessor di streine , et apres un acre est evict , lessee port replevin , donor ou lessor poient avower al eomon ley , et le rent serra apportion , mes il ne poit avower deins cest estatute eo què en l'avowrie il doit alleadger le terre destre deins son fee et seigniorie , què icy il ne poit faire , mes icy si le avers distreine sont prise , la il ne poit aver avowe sur cest distress al comon ley . home seisie de terre al comon ley et de terre en borough english ceo done en tayle ou lessa pur vie , rendant rent , donor ou lessor morust aiant issue fits , leigne fits distreine en terre en borough english et le puisne en terre al comon ley ceux distresses ne sont prises ascun terre deins cest statute , car comental al temps del ' done ou lease tout le terre fuit ove le rent , et fuit tenus , uncore ore le ley ad fait division , et chescun est severalment tenus pro particula . seignior et tenant de terre en counties , seignior poit distreine en un countie pur tout le rent , et faire avowrie deins cest statute , mes il avera several breifes de customes et services , et assise pur le rent , ou cessavit sur un cesser , ne gisont en cest case . quant al seisin il ad estre prise , que seisins sont necessariment requires deins cest statute , car coment que les parols del ' statute sont que il avowera sur le terre alleadging ceo destre deins son fee et seigniorie , uncore cest avowrie reteine les ancient incidents et qualities d'avowries al comon ley . ☞ il ad estre tenus , que si seignior n'ad estre seisie deins ans , et apres il disseise , rent jour incurre , tenant recover en assise , tenant ad gaine sufficient seisin , et poit avower deins cest statute , mes si tenant recover devant ascun rent jour encurre ou re-entrie , coment que soit apres rent jour , uncore il n'avowera pur defalt de seisin deins cest estatute . si defendant en replevin , ad retorne irrepleg ' ceo est un recovery et gaining seisin deins cest statute , et si tenant soit amerce pur defalt de suit al court , et seignior soit seisie del ' amercement , ceo est un seisin del ' rent , mes purchaser del ' rent covient d'aver tiel chose que est del ' nature del ' rent , et nemy auter chose d'auter nature . seignior done en tayle , ou seignior lease pur vie , ne besoigne actual seisin , car le seisin del ' reversion que est le principal est le seisin del ' rent que est l'accessorie , issint seisin del ' rent , est seisin de touts rents parcel de ceo . mesme le ley , seisin del ' principal est seisin del ' accessorie . chescun plaintiff en replevin soit ☜ il termor ou auter poet aver chescun respons al avowrie , come de travers le seisin de tenure , ou de pleader release ou hujusmodi , coment que il soit estranger al avowrie , car avowrie sur cest statute , n'est fait sur ascun person , issint chescun est estranger al avowrie , et si estranger ne pleader tant il ferra nul plea omninoal avowrie sur cest statute , car chescun est estranger . lectio quinta , decimo quarto die augusti . entant que les parols del ' branch en le statute sont , that every avowant , and every other person and persons that make any such avowry , conusance , or justification as bayliff or servant to any person or persons in any replevin , or second deliverance , for rents , customs , services , or for damage feasant , or other rent or rents , upon any distress taken upon any lands , if the same avowry , conusance or justification be found for the defendant , or plaintiff in the same be nonsuit , or otherwise barred , that then they shall recover their damages and costs against the said plaintiff , as the said plaintiff should have done , if he had recovered in the replevin or second deliverance found against the defendants : ore il est estre monstre si cest second branch extend al auter rents , que sont include in le primer branch , et a quel auters rents , et en queux cases le defendant recovera costs et damages per cest statute et en queux nemy . . a grant rent de quarters de frument , ou s. de rent pro eisdem al b. et ses heires , ove clause de distress . b. in consideration de natural amour , que il port a sa soer del ' demi-sanke , et en considerac'on que c. marrier sa dit soer , covenant destoier seisie del ' dit rent al use c. et sa dit soer , b. morust , le marriage est solemnise , le frument est arrere , c. distreine pur s , tenant port replevin , ils sont al issue sur le lieu , et est trove pur l'avowant , il n'avera costs ne damages deins cest statute . . grantee de rent charge pur l. destre paye ceo bargaine et vende al a. et devie , feme bargainor marria ove a. que assigne le teirce part de rent pur sa dower , et morust , feme distreine , tenant port replevin , et est nonsuit feme avera costs et damages deins cest statute . . pere enfeoffe son fits de mannor sur condic'on que enfeoffe auter , condic'on est enfreint , fits enter , et grant tierce part del ' mannor al a , et apres in considerac'on de natural amour , que il port al b. evesque de exon ' , esteant son frere , covenant destoier seisie al use de evesque et ses successors del ' moitie del ' marinor que il purchase de son pere , estraye vient sur le mannor , que est seisie per l'evesque ; en replevin pur le estraye , plaintiff est nonsuit , defendant avera costs et damages ayant respect del ' moitie del ' value del ' estraye . . mesne levie fine l'heire del ' mesne est forejudge en breif de mesne , tenant fait feffment rendant rent durant feffor , feffee al pleine age accept l'arrerages , feffee est amerce en defalt de son suit , et apres est nonsuit en replevin , le defendant avera costs et damages deins cest statute . . gardein sur assignment de dower reserve rent pur le surplusage , l'heire al pleine age agrea al assignment , il distreine , replevin abate pur saux latin , defendant recover costs et damages deins cest statute . . a lessa pur vse , rendant un robe , ou s. pro eodem ove clause de distress pur luy et les assignes , grant per lessee sur condic'on que il assignera son estate al b. lessee lessa al estranger pur ans , que expire , a. grant le rent del ' robe , et apres re-enter , grantee distreine tenant port replevin , et est nonsuit , defendant avera costs et damages deins cest statute . . tenant en especial tayle ad issue files per several venters , disseisor lessa pur vie sur condic'on d'aver fee , donor release al lessee ove garrantie in forma praedicta , pere devie , condic'on est performe , assets descende , lessee fait feoffment , leigne file distreine , feoffee port replevin , et suit al issue sur le propertie , et apres plaintiff est nonsuit , defendant avera costs & damages deins cest statute . . baron et feme lessa terre la feme , pur vie , rendant rent , remainder al b. pur vie , lessee est disseisie , baron devie , feme release al disseisor touts actions , disseisor morust seisie , et apres le terre descende al feme , feme receive le rent , lessee devie , b. distreine l'avers le feme , et sont al issue , sur ne prist pas , et trove pur l'avowant , il avera costs et damages deins cest statute . ☞ issint sur ceux parols del ' statute il ad estre tenus que devant l'estatute de h. . cap. . nul damages ou costs serront recover per l'avowant , car il fuit forsque en nature d'un defendant , et pur ceo le dit statute de h. . fuit què st avowrie soit fait pur rent , custome , ou service , and the recovery be found for him , or the plaintiff be otherwise barred , that the defendant shall recover his costs and damages , as the plaintiff should have done , if it had beén found for him , sur quel statute ut appiert h. . cap. . si le plaintiff en un second deliverance fuit nonsuit , que le defendant recovera costs et damages et que sur le matter il est barre , car il n'ad remedie pur les avers sans satisfier del ' partie , mes si l'avowrie ust estre pur auter chose , que pur rent service ou custome , come pur rent charge , damage feasant , et hujusmodi , car ne suit provide pur cest statute de h. fuit pur remedie , de que mesme l'estatute de h. . fuit fait . le primet branch de cest statute come il ad estre tenus , en le former lecture quant al avowrie sur le terre extende solement al rent service ou customes ou services ; mes cest branch , quant al recoverie de costs et damages enlarge le primer branch , et sa extende non solement a touts rents come rent charges ou seckes , mes auxi al avowries pur damage feasant . cest branch coment il parla solement pur avowries pur rent et damage feasant uncore il ad estre tenus , que per equitie il sa extende al avowries , pur estraye , pur waife , pur suit al court , pur harriot pur amercement et hujusmodi . mes il ad estre prise què si en replevin , les parties sont al issue sur le lieu , et le plaintiffe est nonsute , ou auterment barre que le defendant recovera null damages ou costs , car le meaning et intendment de cest estatute sont ou le plt est barre en le point del avowrie , sc . ou il est barre en le chose que il demand per sa avowrie mes icy il n'est barre en le matter mes sur chose al brief et le point en question n'est trie . mesme la ley si les parties en le replevin sont al issue sur te property des avers et le plt soit non suit ou auterment barre le desendant recovera ses costs et damages . mes il eit estre tenus què si le breif abate pur faur latine , ou pur defect de forme què le defendant ne recovera costs et damages per cest estatute . finis . judge hale his opinion in some select cases . london , printed for norman nelson at grayes-inn gate in holbourn , . l'opinion en ascun select cases del ' tresgrand & erudite sage de la ley mathew hale jadis cheif justice d' angleterre . case . moy semble què coment un original breif ou mesne process al' suit del ' comen person ordinariment ne gist del ' courts de westminister en gales uncore sur un judgment en dett ou damages en le comen bank icy un breif d'execution per testatum capias , fieri facias ou elegit gist in walliam . . moy semble què si la person vers que le judgment est done soit retorne non est inventus en le county en angleterre lou l'original suit fuit primes commence un testatum scire facias gist al' viscount de tiel county en gales lou les terres del ' defendant gisont vers les heirs & terre-tenants pur ceo què est tantsolement breif d'execution et en order al ceo . . moy semble què si sur le scire facias issue soit joine si la partie fuit seisie , ou tiel local issue poiet estre trie en le prochein anglois-countie pur ceo què auterment un failer de iustice ensuera . case . a. ove ses mains demesnes en decembr ' . fist sa volunt en escript et ceo seale & publishe devant trois testmoignes et en ( e ) done several legacies al sa kindred et done un legacy de s. al b. qui per ceo volunt fuit appoint executor in hee verba , if any thing remain undisposed of , i refer it to the discretion of my cosin b. whom i intreat to be rhe sole executor of this my last will and testament . a. puis en . fuit possesse d'un pluis grand estate personal que a luy deveigne per mort et en mesme l'ann suddenment morust sans altring ou fesans ascun auter volunt al temps de sa mort mesme la volunt fuit trove en son study mes ses maine & seal fueront laceratès de ceo , mes per quel voy fuit ignote la volunt est bellement escrie per maine le testator et nient un foits obliteratè ou cancellè mes come devant . quaere . an cest volunt ( il esteant nul auter ) soit un bon volunt ou nemy touts les testmoignes esteants vivants ? si sont ascuns failings en ceo coment poient eux estre fortifies ? quaere . si la volunt n'est bon an l'addition apperteine al b. come executor , ou a les freres & soers esteant prochein en consanguinity al testator ? response del ' hale . si le cancelling , fuit voluntarie per le testator moy semble que est un evidence d'un revocation , mes esteant fait per estranger sans le direction del ' testator , ou fait puis sa mort , ou fait casualment ou involuntariment per le testator donque n'est ascun revocation ceo idcirco est questio facti et rests sur evidence & presumptions en que si le lieu lou ceo fuit tenus , fuit tantsolement en l'accesse del'testator , et ceo fuit cancellè al temps de son mort , ceo et la distance del'temps del ' fesans de ceo car . ia ascun presumption què ceo poiet estre fait per luy mesme mes en cest point jeo referra vous al civil ley et al proofs . . secondment si ceo ne fuit cancelle per luy mesme moy semble que ceo carria le personal estate apres accrue sans ascun novel publication al' executor si ceo fuit cancelle per luy animo revocandi moy semble què administration devoit estre committe al prochein del ' ( oukinn ) consanguinity del ' intestate . case . a. per sa volunt en escript devise al b. sa feme in hee verba sequentia , item , i give and devise unto b. my wife , all my freehold lands for and during the term of her life , and after her decease i do give and bequeath the same unto such of my own kindred as my said wife shall think most fit and best deserving the same . quaere . due estate ad b. per cest devise ? quaere . an le poiar per les darrein parols del ' devise , [ viz. such as b. shall think fit and most deserving the same ] soit tiel poiar et disposal come est deins le statute de volunts , ou ceo soit un void clause ? quere . an si , tiel sit , que estate en les dits terres poiet estre dispose per b. per les parols del ' devise ? an pur vie , vies , pur anns ou en feé ? &c. respons ' del hale . moy semble què b. ad estate pur vie ove poiar a nominater ascun del'consanguinity del ' devisor a prender en remainder puis sa decesse . . moy semble què tiel poiar de nomination poiet estre done per devise sicome fuit poiar al un a vender ou disposer . . entant què soit pluis safe pur b. a nominater per act executè en sa vie , uncore moy semble el poiet nominater per sa volunt ove un special reference a sa poiar , pur ceo què l'estate que surge per tiel nomination prendera effect per voy de render instanter sur sa mort . . . moy semble què el poet nominater tiel number del ' kindred come a luy pleist . . que immediatement sur tiel nomination un remainder expectant sur sa mort voilt estre execute en les parties nominatès pur vie per virtue de ceo . . l'estate que surge per la volunt ne poet estre pluis grand que pur les vies del ' parties nominatès , et que el ne poet transferr un estate pur anns ou en fee , pur ceo que el n'ad ascun poiar done a luy a disposer al tiel del ' kindred quel bien a luy pleist car donque el fuit entrustè ove la poiar del ' estate sicome ove la person mes icy jeo conceive que el ad solement poiar a nominater la person , et la qualitie del ' estate del ' person sic nominatè est destre judgè per les parols del ' volunt que , come moy semble , carries neque expression neque sufficient implication d'un estate puis large que pur vie nisi il soit pluis en la volunt que appiert en le case . case . a. en consideration que b. voilt consent a marrier ove luy ust promise què , whatever b. should be worth in any estate whatsoever at the time of their marriage , if he should happen to die before her , he would double it . b. sur ceo consent et ils fueront marrie ensemble . b. al temps de lour marriage fuit verayment worth en deniers & chattels l. a. puis morust ( et b. luy survesquist ) et per sa volunt ust devise al b. en deniers biens & annuities al value de l ? quaere . si b. ne poet refuse d'accepter del ' devise a luy per volunt et an donque el n'ad un bon action al ley pur l. esteant , le duble value de son estate al temps de son marriage , du an l'acceptance ne relesse le promise ? respons ' hale . . moy semble le promise nient obstant ceo fuit fait al feme n'est extinguishè per l'intermarriage quia contingent et sur condition precedent que ne poiet prender effect durant le coverture . . que si le promise fuit fait al feme sur un consideration movant a luy l'action est destre port per luy vers l'executor . . que si le legacy soit in full de touts promises ou al tiel effect l'acceptance del ' legacy voilt estre un discharge del ' promise et donque si el intende a porter son action il covient a luy a waiver sa legacy . . mes si le legacy soit general donque moy semble si receivè ceo vaera al exoneration del ' damages pur tant et uncore sa action gist pur le recovery del ' residue nisi l'executor paiera ceo solement en satisfaction de touts demands si sic donque n'est safe pur luy a receiver ceo . case . la seignioress buckley seisie en fee del ' capital mesuage nosme hoysdonhead et del ' cloisters & yard deins le precinct del ' darrein dissolve monasterie de black-friers london et da'auters measons en le parish de st. andrew le garderobe london per indenture datè junii , jac. pur l. en mains paiès et l. destre paies ust bargaine & vende les premisses al b. norton et j. bill et lour heirs , et levie un fine sur ceo en trinity terme jacobi . norton per indenture datè decembr ' caroli ( mes nemy enrolle ) en consideration d'un certen sum d'argent a luy paie per r. norton son fits , et en part de performance de certen promises et agreements faits per b. norton sur le marriage de roger ove susan jennings sa feme ust grant bargaine & vende alien enfeoffe & confirme al roger & ses heirs tout ceo sa moiety ou demy part del ' dit capital mesuage &c. a tener al roger & ses heirs a touts jours . j. bill per indenture date aprilis caroli demise sa part al jane bill pur terme de sa vie ( mes ne disposesse l'inheritance de ceo apres sa mort ) & morust , bonham norton luysurvesquist . quaere . an le bargaine & sale fait , per b. norton al r. sans enrolment passa un bon estate al r. de l'un moiety ? et an le joint estate que fuit en b. norton & j. bill soit per ceo destroie ? et an j. bill & b. norton ne deveignont donque tenants en comen ? quaere . si le ioint estate ne soit distroie lou rests le title del ' part de j. bill , an en r. norton ou en le heire al ley de b. norton ? si un iointenant ou tenant en comen occupie se tout an il soit responsible a l'auter iointenant ou tenant en comen put un moiety del ' rents ou profits . respons ' de hale . . moy semble què si ne fuit ascun act fait per norton ou bill pur severer le jointenancy què tout survivera per la ley al norton per le mort de bill , et le devise de bill est void en ley mes si sur ou ●●is le purchase il fuit un agreement què nul advantage serra del ' survivorship ceo poiet create un droit en equity en la moiety al' devisee ou heire de bill neint obstant le survivorship . . jeo conceive què le fait per b. norton al son fits roger transferre la moiety al roger en fee , et per consequens sever le jointenancy . . pur ceo què appiert en le fait què le mease gist en londres , et donque ( come jeo conceive ) en londres meases passe per bargaine & sale sans enrolment , si expresse destre en consideration de deniers . . si ne fuit en londres moy semble què l'estate passe en cest case sans enrolment car entant generalment il covient que un bargaine & sale al fits pur deniers serra enrollè , uncore si appiert què cy est auter e●presse consideration preter argent que poiet raiser un use ceo passe sans enrolment et icy est un consideration expresse preter argent viz. un marriage agreement que poiet estre helpè ove un averment a completer un consideraon del ' sank & marriage . . moy semble consequentment què le devise per bill passe sa moiety al sa feme pur vie , et què le remainder de ceo discend al son heire en comen ove r. norton . case . a. un linen draper anns passe ust purchase de b. son pere several closes esteants customarie-terres parcel del ' mannor de wenn in com' salop ' et paulo post va ouster en holland et icy intermarria ove un feme d'angleterre et vive jesque circa anns darrein passe , et icy morust linquant un fits nee en holland . quaere . an la feme de a. ad ascun droit per la ley destre admitte tenant accordant al custome del ' terres pur sa vie , ou son fits puis luy , nisi ils fueront naturalizès ? respons ' de hale . moy semble que la feme est bien entitle al son frank bank et l'issue de a. nee d'un feme d' angleterre en holland est un denison et enheritable sans ascun naturalization , et le pluis pur ceo què icy appiert nul restraint per special inhibition desouth le grand seal ou per act de parliament a travailer ouster la mere . case . tho. pudding devise ses terres al barth . pudding et les heirs males de son corps loialment procreates ( excepte le primer procreate fits nee del corps de mary ore la feme de bartholomew ) et pur default de tiel issue de son corps loialment procreate al thomas pudding & les heirs males de son corps . quaere . si ceo soit un bon exception d'excluder le primer procreate fits de bartholomew et si son issue poet prender per force del ' dit devise ? respons ' de hale . ceo est un doubtful & unusual exception mes jeo conceive que l'exception poet bien excluder l'eigne fits , et que le devise est un especial entaile setled en bartholomew & discendible en un especial manner a le second fits & son issue ou ascun auter del ' issue male except l'eigne . . pur ceo què la nature del ' conveyance est multment guide per l'intention del ' partie per que ascun construction de ceo poet estre et per la volunt est un expresse exclusion de l'eigne fits . . pur ceo què la nature del ' estate est tiel que est multment directe per la volunt del ' donor per l'expresse parols del ' statute de westminster le second , ita que donoit liberty a creater un special heire destre inheritable al estate qui nient obstant ne poet estre heire al comen ley , come en limitation a les heirs males ou females del ' corps , &c. qui ne poient prove heires al comen ley. . mes an l'exclusion del'eigne fits soit solement personal al luy mesme , ou comprehend son issue , ou auterment , voilt rester sur le view del ' volunt ; et ideo jeo ne donera ascun opinion touchant l'issue del ' eigne fits jesque jeo veie la volunt . finis . certain select moot-cases , intituled , les cases de greys-inn , which have been formerly mooted by that society . london , printed for norman nelson at grayes-inn gate in holbourn , o . certain select moot-cases , intituled , les cases de greys inn , which have been formerly mooted by that society . case . . seignior & tenant le seignior prent feme ils ount issue le baron devie l'issue endowa sa mier de la tierce part des services le tenant cesse le issue port cessavit et recover la feme entre en le tierce part le issue luy ouste et lest parcel del ' terre al feme a terme des anns sur condition que si il enfeoffe un estranger que el eit fee puis il alien le remenant al pier la feme en fee le quel dona ouster a un ancestor en la tail le issue alien ( la terre lesse al feme ) a un estranger en fee le quel dona mesme la terre a un auter en le tail le remanent al primer donee in forma predicta le second tenant en le tail devie sans issue celuy en le remainder entra la feme port breif de entry sur disseisin et recover per default le pier le feme devie le issue le baron ouste la feme et luy refeffe ceux que droit ? &c. case . feme seisie d'un mannor prent baron seisie d'un carve que countervalt le mannor le baron et son frere alienont le mannor al un home & sa feme en fee ove garrantie le frere devie les deux alienees purchasont un carve de terre tenus del ' mannor en fee ove garrantie et alienont cel carve de terre al un home & un feme covert en fee ove garrantie et puis les primers alienees grantont et rendront le mannor a mesme ceux per fine a terme de lour deux vies , et obligont eux & les heirs la feme a garrantie le baron confirme l'estate del ' home en le tail et puis les primers alienees purchasont un darr ' de rent a eux en fee et ount issue deux fits & deviont l'eigne fits happa le rent et va oustre le mere le primer baron lest la carve de terre a un home a tener de sa vie rendrant la moiety de la veray value a luy & a ses heirs le baron & la feme ount issue & deviont l'issue est a sa recovery ; ceux que droit ? &c. case . terre est done a deux & a les heirs l'un en le tail celuy qui n'ad que terme de vie alien a un home et son fits bastard & a les heirs le bastard le tenant en le tail ad issue le pere le bastard enfeoffe l'issue en le tail en fee , en que possession un estranger relest ove garrantie le pere l'issue en le tail devie le pere le bastard devie le bastard port l'assise devers l'issue en le tail & son frere mulier l'issue en le tail vouch ' a garrantie & travers le disseisin pendant le breif il port breif de garrantie de chartre & recover et ad un mease en value puis le disseisin est trove per que il recover l'issue en le tail lest la mease al bastard deins age et prent rent en eschange et a son plein age port dum fuit infra etatem del ' rent et recover et sue execution et waive le mease l'issue en le tail lest le mease al bastard rendrant un certen rent et un entr ' puis default de paiement le rent est arrere l'issue en le tail entre le bastard luy ouste l'issue port l'assise ceux que droit ? &c. case . tenant en la tail ad issue deux filles et devie et les deux filles entront et lessont la terre a un home a terme de vie l'un grant la reversion devant l'attornment l'auter devie le tenant est disseisie de parcell de la terre devant l'attornment et puis attorne come tenant de l'entiretie et enter sur le disseisor le disseisor devie son issue port breif d'entry et recover per default de tenant a terme de vie devie celuy en le reversion entre & alien a un estranger celuy en la reversion prent a baron le villein le tenant en la tail le tenant en la tail purchase acres de terre l'un moiety en fee l'auter moiety a terme d'auter vie et ad issue deux filles et devie . ceux que droit ? &c. case . un home enheritee de certen terre ad issue fits & deux filles et purchase un carve de terre a luy & celuy qu' serra son primer heire et fait recognizans a ses deux filles le feoffor le pere est emplede il vouch ' a garrant ' le pere d'un garranty d'eigne temps le pere entre en le garranty et pendant le breif le jour del ' recognizans est encurge les deux filles suont execution per elegit et ount en execution la terre luy discend ' le pere done l'auter terre a les deux filles per ceux parolls totum statum quem habeo & devie , resummons est sue vers le tenant il revouch ' le heir qui entre en la garranty et plede et perde issint què la terre que fuit liver per elegit est fait en value al tenant et puis le tenant les ouste de l'auter terre en que possession le heire relesse ove garranty & devie l'un fille deins age ceux que droit en ount ? &c. case . tenant en tail alien en fee le alience est disseisie per l'issue le tenant en la tail & un estranger l'alienee port l'assise pendant le breif l'issue enfeoffe son coagitor le tenant en le tail devie seisie de terre en feesimple que amount al moiety de terre-tail l'issue entre & port severance vers son coagitor & recover per action trie l'auter sue avant son breif . ceux que droit ? &c. case . un home seisie de carves de terre dona l'un carve de terre a un home en la tail et ad issue deux filles et devie seisie de les carves de terre les filles entront & lessont acres de la terre a un home pur terme de son vie et repreignont estate pur terme des anns et alien a un home en fee le tenant a terme de vie luy ouste & luy refeoffe les deux filles luy oustont il po●t l'assise pendant le breif eux fount purpartie issint que le carve de terre est allotte al purpartie l'un et l'auter carve de terre allotte est al purpartie l'auter et teign ' le tierce carve de terre que ne fuist my lesse en comen l'un fille alien sa purpartie a un home en fee le tenant en le tail est emplede il vouch ' a garrantie les deux filles ils entront pledont et perdront issint que le demandant recover et le tenant ouster al value vers les deux filles issint que cel purpartie que remaint nient alienè est fait en value le tenant en le tail devie sans issue la fille que alien ' enter l'auter fille luy ouste el port l'assise pendant l'auter assise . ceux que droit ? &c. case . un home seisie de certen terre done mesme la terre a un home en fee sur condition que s'il paie certeins deniers a certein jour que il poet entrer et si ne que l'auter teign ' en pees le feoffee est disseisie le feoffor relesse al disseisor tout de droit que il ad en mesme la terre a jour d'assise le feffor tendr ' les deniers le feoffee les resceive le feoffor ouste le disseisor il port l'assise et l'assise prise per default per que il recover pur ceo que il est trove pur luy le feoffor port l'attaint et recover et done mesme la terre a un home et sa feme en la tail vers queux le disseisor port breif de droit et apres la mise joine le baron & sa feme font default per que judgment est done final vers eux devant execution sue le baron & la feme ount issue deux filles & deviont la fille eignesse entr ' en l'entiertie vers que le demandant sue execution et ad execution la file eignesse ad issue et devie &c. case . un home seisie de terre en gavelkind & de terre al comen ley lessa mesme la terre a un home pur terme de sa vie sur condition que s'il purchase x l. de terre que il eit x. anns oustre apres sa mort et puis grant la reversion a deux et a les heirs l'un en le tail devant l'attornment le grantee en la tail ad issue deux fits et devie le lessor relesse al tenant a terme de vie tout le droit que il ad le tenant attorne al auter grantee per fait endente le tenant a terme de vie purchase x. l. de terre pur ouster le seignior de gard le lessor devie son heire deins age le seignior happa le gard du corps et port breif de garde de la terre vers le tenant a terme de vie la collusion est trove per que il recover et al plein age le tenant port breif de covenant vers le heire pendant le breif il fait felony pur la quel il est attaint et sue avant son breif et recover le seignior port breif de escheat et recover per default le tenant devise la terme a sa fille , et devie la fille prent baron le fits puisne le grantee en la tail l'auter grantee del ' reversion devie . ceux que droit ? &c. case . un home & un feme sole purchasont carves de terre jointment a eux et a lour heirs le home sait felony pur la quel il est attaint la feme prent baron le baron et la feme alien ' un carve de terre a un feme sole vers que le seignior port breif d'escheat . el vouch ' a garrantie le baron & sa feme , eux fount default apres default , per que seignior recover & la feme ouste . la feme sue execution et ad en execution le carve de terre , mes le seignior ne sue my la feme est emplede de l'auter terre el vouch a garrantie le baron sole , il entre en le garrantie , et plede et perde , issint que la tierce carve de terre est mise en value . le seignior prent mesme la feme a feme . le primer baron purchase acres et ad issue filles per divers venters , et devie , sa feme priviement enseint . les deux filles entront , breif de droit est port vers eux , els perdront per default apres la mise joine , per que le demandant recover la feme est deliver de la tierce fille , et devie : ceux que droit ? &c. case . seignior mesne & tenant . le tenant est disseisie le rent est arrere le seignior distreine le disseisor port breif de mesne vers le mesne pros taunt sue tanque que le mesne est forjuge le disseisee port l'assise & recover et enfeoffe le mesne in le tail a tener de luy mesme per service de chivaler le mesne devie son heire deins age le donor happe le gard de corps & des terres le seignior fait son executor et entre en religion et est professe le executor relesse al donor le seignior est deraigne per precontract : ceux que droit ? &c. case . terre discend a un feme de part sa mere le seignior luy ouste & luy refeoffe a tener a sa volunt puis el purchase auter terre , et est disseisie de l'un et de l'auter terre per un estranger le disseisor enfeoffe le pere la feme a tener de luy devant l'estatute rendrant a luy certen rent , et un entre pur default de' paiement le pere charge la terre a un estranger , le primer rent arrere le pere devie le disseisor enter la feme port l'assise et mette en plaint et en view la terre luy discendus & sue a vant son breif & recover , et ad execution de l'un terre et de l'auter le rent charge arrere celuy a qui le charge se fist distreint la feme fait rescous le chargee ad issue & devie . ceux que droit ? &c. case . home seisie de certein terre lessa mesme la terre a un home & un feme sole a tener des anns sur condition que sil paia certein deniers a certein jour què eux n'ount que terme , et si ne , què eux ount fee le jointenant al feme enter en religion & est professe la feme prent baron le lessor . al jour d'assise le lessor tendr ' les deniers al abbe & al commoign ' eux refusont . divorce est fait perenter le baron & sa feme . le baron soy teign ' eins . le commoign ' est dereigne per precontract la feme prent celuy a baron le lessor lessa mesme la terre al baron & sa feme a terme des anns , et puis confirme l'estate la feme a terme d'auter vie eux fount wast le lessor port breif de wast eux pledont nul wast fait trove est le wast , per que il recover . le baron & sa feme ount issue , et deviont ceux que droit ? &c. case . feme seisie de certein terre est disseisie et prent le disseisor al baron . le baron et sa feme ount issue . le baron devie , le issue entre et endowa sa mere de la tierce part per fait endente et lest les parts a un home a tener de vie . la feme prent auter baron , le baron & sa feme portont breif de entre sur disseisin vers le tenant , il prie en aid d'un estranger . celuy en la reversion entre per cause de claimer de fee. le tenant luy ouste . le baron & sa feme sueont avant lour breif & recoveront per default . le tenant a terme de vie port quod ei deforceat , et recover per default . le baron devie , la feme port cui in vita : ceux que droit ? &c. case . seignior mesne & tenant le mesne grant les services de son tenant a a terme d'auter vie le tenant attorne puis le villein le seignior purchase la terre en demesne , et attorne a les per fealty , et alien parcel de la terre a un estranger en morgage sur paiement ou non paiement le fits le seignior enfeoffe le villein de certein terre per cest paroll dedi . le villein ad issue deins age , et devie , les mesnes happont le gard du corps & des terres le seignior devie devant le jour de paiement l'un des mesnes tender les deniers , il les refuse l'issue le seignior celuy qui tendr'les deniers devie celuy a que vie les services furent grantès devie l'auter port breif d'engett ' de gard ; ceux que droit ? &c. case . home seisie de carves de terre grant comon a un home a boefs le quel grant a luy un rent charge sur condition què a quel heure què le rent soit adarere que bien list a luy a distorber luy de la comen le grantee prent feme et dowe sa feme al huse de monstr ' le rent arrere le grantor luy distorbe de la comon & del ' un carve de terre , et devie l'issue enter et dowe sa mere de l'auter carve de terre , et retient la tierce le grantee ad issue et devie ; ceux que droit ? &c. case . la reversion d'un tenant en le tail apres possibilitie d'issue extinct est grant a un feme sole sans atturnement del ' tenant le grantor purchase un carve de terre que est ancient demesne et grant un rent charge al feme tanque l'attornement del ' tenant soit vestu a luy le grantee prent baron le baron & sa feme sont seisies del ' charge le grantor prent feme et ils ount issue fille la feme devie il prent a feme la dame d'ancient demesne , et ount issue auter fille le pere et la feme devient un estranger abate , et enfeoffa la fille puisnesse , vers que la fille eignesse port nuper obiit , et recover la moiety l'auter baron ad issue , sa feme devie le rent est arrere le baron diftrein les filles font rescous l'auter port l'assise . ceux que droit ? &c. case . terre discend a un home de part sa mere , et rent issuant de mesme la terre de part son pere il enter et devie sans issue l'uncle de part la mere enter en la terre , et l'uncle de part le pere happ ' le rent l'uncle de part le pere purchase certein terre et auter recover et lesse la terre & les rents a un home a tener de sa vie les tenants attornont le lessor & le lessee enfeoffount un home et un feme sole en fee de la terre le lessee alien les rents a mesme ceux en fee les tenants attornont le baron prent la joint feoffee a feme , et purchase la terre d'ont le primer rent est issuant ; ceux que droit ? &c. case . terre et rent service sont dones a un home en le tail , issint què il poet aliener al profit de son issue le tenant en le tail est disseisie , et relest al disseisor , pur quel release faire il prent auters terres en eschange què much vaillent le tenant en le tail port l'assise , et recover ( la release nient plede , pur ceo què l'assise fuit prise per default ) et prent a feme la soer le donor et ad issue et devie l'issue entre et endowe sa mere de le rent en allowance de tout sa dower , le quel alien le rent al disseisor en fee ove garranty le tenant attorne la mere devie le tenant de la terre fait felony , pur la quel il est atteinte le disseisor enter come en son escheate l'issue en le tail devie sans issue le disseisor entre en la terre done en le tail l'uncle de part le pere entre en le terre prise en eschange le donor ad issue et devie ; ceux que droit ? &c. case . breif est port vers le fits eigne il conus estre le villein son pere per que le breif abate il port auter breif vers le pere et le fits. pendant le breif le fits relest al pere. puis le demandant est nonsue le pere lest mesme la terre al un feme sole a terme de sa vie , sur condition que si el soit emplede et el plede en cheif sans voucher a garranty ou prier en aid de luy ou de ses heirs ou de ses assignes , que bien list a luy ses heirs & ses assignes d'entrer et granter la reversion a ses fits et a les leirs le puisne le tenant attorn le fits eigne prent mesme la feme a feme il port auterfoits breif vers eux ils traversont l'action le demandant le pere devie le fits eigne devie le fits puisne entre il sue avant son breif et recover et lest la moiety al feme a tener pro indiviso et prent mesme la feme ; ceux que droit ? &c. case . home seisie d'un carve de terre de feesimple et d'un auter en le tail ad issue filles et devie les deux filles entront et fount purpartie enter eux issint que la terre-tail est allotte al fille puisne el prent baron et ils ount issue fits et fille le baron devie el prent auter baron et ount issue fits le baron et la feme deviont le fits eigne entre et lest le terre a un feme sole pur terme de sa vie sur condition que s'il grant la reversion que il eit fee en droit de la moiety la feme prent baron le lessor grant le reversion a un estranger le baron & la feme attornent le baron et sa feme sont empledes et perdont per default le baron devie la feme port cui in vita et fait son title de l'un moitie en fee et de l'auter moiety a terme de vie , et recover , en que possession le lessor relest ove garranty . celuy en la reversion entre pur cause de claimer de fee el port l'assise & recover le fits eigne purchase un carve de terre de fee-simple et devie seisie le fits puisne entre et port breif de formedon de l'auter terre el plede devers luy le fait son ancestor ove garranty , ovesque ceo que il ad assets per discent , per que il est barre la feme port assise de mort-d'ancestor et recover ; ceux que droit ? &c. case . tenant en le tail parcel ancient demesne parcel frank fee charge mesme la terre a un home en fee , le quel grant mesme le charge ouster a deux pur terme de lour deux vies , vers queux un estranger port breif . eux font default . apres default celuy en la reversion prie destre resceu a defender son droit , et est resceu , et travers l'action le demandant trove est sa action per faux verdict per que il recover l'auter porta l'attaint , pendant le breif l'un des tenants a terme de vie relest al pernour de le rent , l'auter al tenant de la terre . i l sue avant son breif et recover per que les tenants sont remise en lour primer estate per reprise d'un boef . le tenant en le tail ad issue , et devie . un estranger enter , et enfeoffe l'issue . ceux que droit ? &c. case . un home seisie de carves de terre deux en feesimple la tierce en le tail , ad issue fits , et lest un carve de terre de feesimple a son fits et a un feme sole pur terme des anns , et confirme l'estate son fits en fee. le fits ad issue et devie . la lessor lest les deux carves de terre al feme a terme des anns . la feme prent l'issue le fits al baron le lessor confirme l'estate le baron pur terme de sa vie demesne , et puis divorce est fait perenter le baron & sa feme . la feme prent a baron le lessor ; la feme est villein a un estranger regardant a un mannor . breif est port vers l'issue le fits , il conust estre villein la feme , per que le breif est abate . l'issue le fits purchase le mannor a que la feme est villein regardant . le lessor devie , l' issue enter , le terme nient passe : ceux que droit ? &c. case . home seisie de certein terre , lest mesme la terre a un home et a sa feme pur terme des anns , sur condition , que s'il paie certein deniers a certein jour què eux n'ount què terme , et si ne , què eux ount fee. le baron & sa feme ount issue deux fits . le lessor grant la reversion a les deux fits . le fits eigne devie , le baron et sa feme attornant al fits puisne . le baron devie . la feme se tient eins ; le lessor luy ouste , el port breif de covenant et recover . al jour d'assise le lessor tender les deniers , la feme les refuse ; la feme devie ; le fits puisne entre ; le lessor ad issue et devie : ceux que droit ? &c. case . un home seisie d'un rent charge en le tail purchase la terre d'ont le rent est issuant , et done mesme le terre a son fits , et prent auter terres en eschange , et lest les terres prise en eschange a un home pur terme de sa vie ; savant la reversion a luy et a ses heirs . le fits lest sa terre a un auter pur terme de sa vie , le remainder a un auter en fee. le pere feint un action vers le lessee le fits , et recover per default , et devie seisie . celuy vers qui il recover enter , et devie . celuy en le remainder enter . breif est port vers le lessee le pere , il fait default apres default . celuy en le reversion prie destre resceu a defender son droit , la resceit est counterplede ; ceux que droit ? &c. case . home seisie de certein terre ad issue deux filles , et devie ; la fille puisnesse enter et alien mesme la terre a un estranger en fee , le quel lest mesme la terre a un auter a terme de sa vie , en qui possession l'eigne file relest . les deux soers portont mortd'ancestor , la puisnesse fait default , l'auter est sever et sue avant son breif , et recover la moiety , et charge mesme cel moiety a un home en fee. le tenant a terme de vie devie ; celuy en la reversion enter en la moiety et port breif ad terminum qui preteriit de l'auter moiety , et recover per default . la puisnesse port dum fuit infra etatem et recover l'entierty . le rent est arrere . celuy a qui la charge se fist distreint , la puisnesse fait la rescous : ceux que droit ? &c. case . feme enherite prent baron , ount issue ; le baron fait felony pur la quel il est utlage , et purchase charter de pardon , et ount issue auter fits . le baron enfeoffe le fits puisne de la terre que est de droit la feme , et purchase comen le pasture en un more en la moiety d'un parcener que tient la more en comen ovesque un auter parcener . puis il et sa feme deviont . le fits puisne happa la comen , vers qui le fits eigne port cui in vita , il plede devers luy le feoffment son auncestor ove garranty , ovesque ceo que il ad assets per discent . pendant l'issue il est nonsue . l'auter parcener grant comen de turbarie en l'auter moiety del ' more que el tient issint en comen a un home a terme de sa vie , le quel grant son estate al fits puisne , et enter en religion , et est professe . le fits eigne purchase l'estate la parcener , le quel graunta comen a son pere , et prent l'auter parcener a feme . le fits puisne use sa comen , l'auter luy distorbe ; ceux que droit ? &c. case . home seisie d'un mease et d'un carve de terre en le tail , et d'un auter carve de terre de feesimple as queux comen des estovers sont appendants en le bois d'un bastard , il est distorbe a prender les estovers per le bastard , et ad issue deux filles , et devie ; les deux filles entront et font purpartie enter eux per my et per tout , issint que la moiety del ' mease est allotte a l'un file , et l'auter moiety a l'auter file . l'un file relest al bastard tout le droit que el ad en les estovers ove garranty le bastard devie sans issue le seignior entre et ad issue deux filles et devie . les deux filles entront , l'un grant ceo que a luy affiert a un estranger . celuy que relessa ad issue , et devie : ceux que droit ? &c. case . deux femes , l'un deins age , l'auter de plein age purchasont jointement , et pernount barons . les barons alien a un home ( cest assavoir ) quamque attient a luy de plein age , a terme de vie , et quamque attient a celuy deins age , en fee tail . le baron celuy de plein age devie , la feme port cui in vita , et recover l'entiertie per default , et enfeoffe le baron & la feme deins age en fee. eux ount issue , le baron devie , le fits entre , la feme port breif de dower et recover la tierce partie , et enfeoffe le primer alien ' l'issue port breif de . entry sur l'estatute de gloucestre , et recover per default . la feme de plein age ad issue et devie , la feme deins age ore a son plein age est a son recovery &c. case . un home lest certen terre a un auter a terme de vie ove garranty en fee ; le lessee alien en fee. le lessor entre l'alien ' ad issue et devie l'issue port breif d'entrie en se quibus , et recover per action trie , et redona la terre al lessor rendrant a luy certein rent , et un entrie pur default de paiement le rent est arrere , le lessor devie , son issue entre , le feoffor son pier entre sur luy , et done la terre a un abbe et a un secular , al abbe et a ses successors , al secular et a ses heirs . l'abbe devie , un auter est eslie abbe , quel enter et tient en comen ovesque le seeular . le tenant a terme de vie est seisie de un carve de terre , et ad issue fits , et devie , le fits eigne enter en religion n'est professe , le puisne enter en la terre , l'issue le lessor ad issue , et devie seisie d'un carve de terre : ceux que droit ? &c. case . un home et sa feme et le tierce purchasont jointement et lessont la terre a un home et sa feme a terme de lour deux vies , les queux alienont la moiety a un home et sa feme et un auter en fee , et repreignont estate del ' moiety de cel moiety , et alien l'auter moiety a un abbe & son commoigne le abbe est depose ' un auter est eslie , et devie , l'auter est re-eslie abbe , le primer baron devie , la feme entre en religion et est professe . le joint feoffee enter en religion et est professe et eslie abbe per nomen de iohn abbe , il relest a touts les terre-tenants . le tierce baron entre en religion et est professe , son joint feoffee fait felony , pur quel il est utlage . la feme soy tient eins . l'abbe qui relessa est deraigne per precontract : ceux que droit &c. case . feme seisie de certein terre , dona mesme la terre a un home en la tail , et prent mesme celuy a baron , et ount issue , le baron fait felony pur que il est pendu , le fits soy tient eins , vers qui la feme port breif de dower , il vouch a garranty la feme per estrange nosme el fait default apres default , per que la feme recover , et il enter , la feme sue execution , la feme prent baron , le sits sue scire facias vers le baron et la feme , et recover per default , et alien a un home en fee , le quel lest oustre a un auter a terme de vie , sur condition que s'il eit issue que adonques il eit a luy et a les heirs de son corps engendres , et s'il devie sans issue de son corps , le remainder a ses droit heirs et a les heirs le corps l'issue en le tail issuants . le baron devie , la feme port cui in vita vers le tenant , il vouch a garranty l'issue en le tail come assignee , il fait default , apres default per que la feme recover , le tenant a terme de vie devie , l'issue le tenant en la tail ad issue et enter en religion , et est professe : ceux que droit ? &c. case . un home seisie de terre en gavelkinde ad issue fits , et purchase un carve de terre que est al comen ley de son fits puisne a tener de luy devant l'estatute per certein rent . le fits puisne distreint , le pere et un estranger font rescous . le pere et le estranger disseisont le fits puisne d'un carve de terre . le pere relest a l'estranger ove garranty . le pere devie , les fits font purpartie enter eux , issint que la terre a la comen ley est allotte al fits eigne l'estranger est emplede , il vouch les fits , eux entront , pledont et perdont , issint que la terre al comen ley est fait en value . le fits puisne ad issue et devie : ceux que droit ? &c. case . deux parceners seisie d'un mannor a que plusors villeins sont regardants , l'un parcener lest un carve de terre qu'est parcel de mesme le mannor a deux a terme de lour deux vies ove garranty a l'un , et port breif de trespass vers eux , ils allegent villenage en sa person , el ne poet dedire , per que le breif abate . puis un des villeins del ' mannor port breif de droit vers les parceners , et recover per default eux portont breif de disceit vers luy & le viscount , le disceit est trove , per que eux sont restitutes al mannor l'un parcener que lessa ad issue et devie . l'un des tenants conust les tenements estre le droit un auter , pur quel conusance l'auter granta et rendra mesmes les tenements a luy a terme de vie , le remainder a un feme sole , le tenant que conust devie , l'auter soy tient eins , la feme prent le villein qui porta breif de droit a baron : ceux que droit ? &c. breif d'entry , ou formedon en le remainder pur le baron et la feme gisont bien &c. case . un home seisie d'un carve de terre lest mesme la terre a un auter a terme de vie rendrant a luy un rose per annum ' ad issue deux fits per divers venters et devie , le fits eigne happa le rose , et granta la reversion ove le rose a un home en le tail , le tenant attorne ; le uncle de part le pere est seisie de acres de terre , et dona acres de terre al fits puisne en fee-simple et le a terme d'auter vie ove garranty , et puis confirme sa estate en fee sans garranty , et grant ouster que a quel heur que il soit emplede que il poet dereigner le garranty per le primer fait , et puis il dona un acre de terre de feesimple a un home en le tail , le quel est emplede , il vouch a garranty l'uncle come assignce , qui entre en le garranty et plede et perde , et chescun sue execution le fits puisne est emplede de la terre lesse a terme de auter vie , il vouch a garranty le uncle qui entre en la garranty et plede et perde , et chescun sue execution . le tenant en le tail de don'le fits puisne devie sans issue de son corps , le fits puisne enter , celuy a que vie la terre fuist lesse devie , le fits eigne devie , le tenant a terme de vie devie , le tenant en le tail de la reversion devie sans issue , le fits puisne enter , l'uncle luy ouste : ceux que droit ? &c. case . un home seisie de deux carves de terre l'un en feesimple , l'auter en fee tail , ad issue deux filles , et charge sa terre tail a ses deux filles a terme de lour deux vies , & la terre de feesimple a sa fille eignesse puis la fille eignesse confirme l'estate al fille puisnesse del ' rent issuant del ' terre , tail . le pere disseisa la fille eignesse de la terre tail , et devie seisie del ' terre de feesimple . la eignesse enter , la puisnesse port un nuper obiit , l'auter disclaime en le sank per que le breif abate . l'eignesse recitant la grant del ' rent issuant del ' terre de feesimple grant mesme le rent ove x. darr ' de rent ouster a un estranger . la puisnesse port mortd'ancestor vers l'eignesse del ' terre de feesimple , l'assise est prise per default per que el recover . la fille puisnesse recitant le grant et confirment del ' rent issuant del ' terre tail grant mesme le rent a celuy estranger . l'eignesse ad issue fits , et enfeoffe son fits del ' terre tail en feesimple , et devie : l'issue et l'aunt en nosme de l'aunt portount formedon , l'issue est summon et sever , el sue sole , l'issue vouch luy mesme come assigne sa mere , et luy & sa aunt come heirs al aiel . eux entront en la garranty et rendront en gree , le rent est arrere , celuy a qui le rent fuist grante distreint , l'issue et l'aunt fount rescous . ceux que droit ? &c. case . un home seisie d'un carve de terre ad issue filles per divers venters , et devie ; un estranger abate et lest mesme , la terre al fille puisnesse a terme de sa vie , la quel lest ouster , a sa soer , sur condition , que el paie certein deniers a certein jour que el eit fee , et si non , que lauter puissoit entrer & tener en comen ovesque luy : a jour assis les deniers nient fuere paies , per que el enter et tient en comen ovesque luy . le rent est arrere , le seignior distreint , els font replevin , le seignior avowe , les disclaime , le seignior port breif de droit sur disclaimer , et recover per default , l'abator port breif d'entry in consimili casu , et recover per default , la fille eignesse port mortd'ancestor , l'assise est prise , per default , per que el recover et devie seisie , la fille puisnesse enter , le seignior port breit d'escheat : ceux que droit ? &c. case . trois soers , l'un seignioresse , l'auter mesne , la teirce n'ad rien . la mesne ad issue deux filles & devie , l'un alien ceo que a luy affiert a sa aunt , que n'ad rien . le tenant est distreine , il port breif de mesne devers les . mesnes , pendant le breif il attorne a l'aunt , et puis eux disseisont , et il sue avant son breif , issint que les mesnes sont forejuges . le seignior ad issue filles , l'un deins age , et devie ; le seignior paramount luy happe le gard celuy deins age . le tenant en demesne ad issue et devie , l'aunt a que le grant soy fist happe le gard. le seignior paramount et les soers , celuy deins age & l'auter , sont a lour recovery : ceux que droit ? &c. case . un home , et un feme sole , et deux infants deins age purchasont jointement . le home prent la feme a feme ; touts les lessont la terre a un home pur terme de sa vie : le baron devie , l'un infant deins age prent feme ; le tenant a terme de vie dona mesme la terre al baron & la feme en le tail , vers queux la primer feme port cui in vita , et recover per default ; le baron & la feme portount quod ei deforceat et recoverount per default . le baron et la feme ount issue , le baron devie , la feme alien a l'auter infant deins age et un estranger en fee ; la feme devie , l'issue est a son recovery : ceux que droit ? &c. case . home seisie de certein terre & d'un villein en le tail lest mesme le villein a sa soer a terme des anns , et la terre a son fits pur terme de sa vie la feme prent baron le lessor confirme l'estate a le baron & sa feme a terme de lour deux vies , et grant a eux la reversion de la terre en fee ; le fits attorne , le tenant en le tail devie , le baron & la feme portont breif de wast , et recoverount per plee ; le fits port formedon , et recover per default , le villein purchase certein terre , le baron & la feme entront & lessont mesme la terre al fits pur terme de sa vie , et le fits lest mesme la terre al feme en mortgage a paier certein deniers a certein jour , a jour assis il tender les deniers , il les refuse ; puis divorce se prent perenter le baron & sa feme al suit de seint esglise la feme soy tient eins , le fits luy ousta ; la feme port l'assise &c. md què breif de cui ante divorcium gist bien . quaere s'il avera le view ? car l'estatute est que il serra ouste del ' view si tenens sustulit alind breve , et cest breif n'est done per l'estatute : mes quaere s'il serra prise per l'equitie de l'estatute . case . feme neif sole seisie de carves de terre l'un en feesimple , l'auter a terme de vie ; le seignior la neif purchase la reversion del ' terre a terme de vie , la feme attorne , la feme prent a baron le seignior del ' terre en feesimple , le baron ouste le seignior la neif , et lest la terre a un home sur condition què s'il paie certeins deniers a certein jour que il poet enter , et si non , que l'auter eit fee ; le seignior la neif relest a baron tout le droit que il ad al jour de paiement , le baron tendr ' les deniers , et entre , le seignior luy ouste de tout le terre , le baron et la feme ount issue , la feme devie , l'issue devie sans heir , le baron ouste le seignior del ' terre , et alien , et reprent estate a luy et a second feme : ceux que droit ? &c. case . tenements sont lessès a un home pur terme de sa vie , le remainder ouster a un auter pur terme de sa vie , et apres son decease le remainder a les heirs de son corps engeneres . le primer tenant devie , le second entre et alien ; l'alienee alien a deux , a l'un en le tail , a l'auter a terme de vie . le second tenant a terme de vie ad issue , et devie ; l'issue port breif de formedon en remainder et recover per default , et alien , et reprent estate a luy et a un auter : ceux que droit ? &c. case . home enherite prent feme , ount issue fits , le baron devie , la feme entr ' et devie seisie , l'issue entr ' et alien la terre a un home en fee rendant a luy certein rent , et a quel heur , que le rent soit arrere , que bien list a luy et a les heirs de part sa mere d'entrer ; le rent est arrere , le lessor entr ' , le lessee luy ouste , en quel possession un estranger relesse ove garranty . le rent est arrere , le lessor devie , s'aunte de part sa mere enter et refeffe le lessee ; l'aunte de part son pere prent a baron celuy qui relest . lessee ad issue deux filles et devie , l'un alien ceo que a luy affiert a un estranger a tener en comen ovesque sa soer , et l'auter enfeffe un auter estranger a tener en comen ovesque l'alienee la soer : ceux que droit ? &c. case . breif est port vers le diffeisee , il conust estre le villein le disseisor , perque le breif abate . le disseisor fait un recouusans al disseisee a paier certeins deniers a certein jour , a quel jour il ne paia pas , per que la moietie de ses terres sont liverès en execution per elegit , et puis il dona l'auter moietie a mesme celuy pur terme des anns , sur condition , què s'il eit heir male deins le terme què il eit fee , et si non , què il eit que terme ; deins quel terme il confirme son estate pur terme d'auter vie : et puis le tenant ad issue male deins le terme , celuy a que vie le confirment fuist fait devie , le lessor entr ' en l'un moietie , et un estranger abate en l'auter moietie , en que possession l'uncle relest ove garrantie , et devie ; le second disseisor enfeffe le primer disseisor de ceo qu'il ad : ceux que droit ? &c. case . deux barons & lour femes purchasont jointment , sont disseisies , l'un baron relest al disseisor , le disseisor enfeoffe l'auter baron en le tail , et puis divorce se prent perenter le baron ( qui relest ) & sa feme , la feme port cui ante divorcium pendant le breif , el entra ; le tenant en le tail port l'assise et recover ; la feme sue avant son breif , et apres appearance el est nonsue ; le tenant en le tail devie sans issue . le disseisor entr ' come en sa reversion , vers que la feme le tenant en le tail port breif de dower et recover , et enfeffe l'auter feme , et devie ; le disseisor entr ' : ceux que droit ? &c. case . un home seisie de carves de terre ad issue filles per un venter , et un fille per auter venter , et enfeoffe un home d'un carve de terre , devant l'estatute , a tener de luy per les services d'un denier , et puis acroch ' xx s , et puis enfeoffe mesme celuy de les deux auters carves de terre a tener de le cheif seignior per les services dues & customes , et devie ; les deux filles happ ' le rent , la feme port breif de dower & reeover , issint què le carve de terre , que fuist primes done , est liver en execution en allowance de sa dower , et puis paie les xx s. et happe un release de celuy en la reversion ove le primer fait de feoffment et devie : la puisne file entre et prent baron ; le rent est arrere , les deux filles distreignont , et avowant sur le baron et la feme , eux pledont rien arrere , et puis les plaintiffs sont nonsues ; per que retorne est agard ( la puisnesse file ore a son plein age ) le rent auterfoits adarere , les deux soers distrein le baron &c. sa feme et le tierce fount le rescous , l'un file relest a l'estranger touts manners , d'actions personals & reals , l'auter ad issue & devie : ceux que droit ? &c. case . un home seisie de certein terre en fee , lest mesme la terre a deux a terme de lour deux vies , l'un deins age , l'auter de plein age ; puis il grant la reversion a un estranger en fee ; per virtue de quel grant celuy deins age attorne , celuy de plein age ( nomine celuy de plein age ) grant son estate al grantor , celuy deins age surrender son estate a celuy en reversion ; puis celuy en la reversion fait un reconusans a celuy deins age , le jour encourge , celuy deins age fuist execution , et ad execution de mesme la terre ensemblement ove la moietie de tout sa terres celuy de plein age devie sans issue , celuy deins age ad issue , et devie , l'issue enter , le grantee ad issue deux filles et devie , les filles oustont l'issue celuy deins age que suist execution , l'un soer alien ceo que a luy affiert a un home a tener en comen ovesque sa soer , l'auter alien en mesme le manner : ceux que droit ? &c. case . tenants sont lessees a un infant deins age a terme d'auter vie , la quel alien ouster en fee , l'alienee ad issue et devie , celuy deins age enter , l'issue l'alienee port breif de mortd'ancestor , pendant le breif celuy a que vie la terre fuit lesse devie ; le lessor entr ' come en sa reversion , et ad issue et devie seisie , celuy deins age entre , l'issue sue avaunt son breif et recover et alien a un a terme de vie , le remainder a un infant deins age ; le tenant a terme de vie devie , le deins age entr ' come en son remainder , l'issue le lessor ad issue et devie : ceux que droit ? &c. case . heritage discent a soers come a un heir , eux firent homage al seignior , et puis firent parpartie enter eux , la puisnesse fait felonie , l'auter fuist emplede , el pria en aid de sa parcener , el se joint en aid prier , eux perdount , per que est agard que el recovera pro rata portione ; cestuy qu' fist le felonie est attaint , le seignior port breif d'escheat vers l'auter soer ; ceux que droit en ount a lour recovery sont ? &c. case . home seisie d'un carve de terre de feesimple et d'un auter en le tail ad issue fits & deux filles per un venter et fits per auter venter . happe un reles de la terre tail d'un estranger et alien mesme le carve de terre a un estranger in fee et devie , l'eigne fits entr ' en le carve de terre de feesimple et purchase la moiety del ' terre tail , et port breif de formedon de l'auter moiety et recover ( mes il ne sue my execution ) et enfeoffe sa soer de cel moiety quel il purchase , et reprent estate a terme de sa yie ; et puis luy et sa soer enfeoffount celuy qui relessa in fee : le fits devie , les deux soers entront in la moiety del ' terre de feesimple , et le frere del ' demy sank in l'auter moiety ; les deux soers sueont scire facias vers celuy vers que lour frere recover , et ount execution , etenfeoffount mesme celuy arrere a terme de sa vie , le frere de demy sank ad issue et devie seisie de cel moiety de terre de fee-simple : ceux que droit en ount vouchant ? &c. case . home seisie de certeins tenements grant un rent charge a deux , a l'un in la tail , a l'auter a terme de sa vie celuy a term de sa vie grant son rent a un home a terme d'ans . le grantor recitant le grant a luy in la tail & a l'auter a terme de vie grant que a quel heur que le rent soit adarere que il poet distrein ' et si rescous a luy soit fait que il eit a term de vie . le tenant del ' terre alien ' parcel del'terre a un home , et ad issue et devie ; le seignior happe le gard del ' corps l'issue deins age et des terres que sont a luy discendus , et port breif de gard devers l'alienee , il plede le feoffment le tenant del'terre , trove est al collusion issint que il recover le rent arere ; le termor distreint , le seignior fait rescous , l'infant deins age ore a son plein age entr ' in la terre que a luy est discendus , l'alienee in l'auter terre . le tenant in le tail del ' rent enfeoffe son issue deins age et entr ' in religion , et est professe , breif est port vers l'issue , vient un et prie conusans de plee et ad jour done ouster , l'infant fait default issint que le demandant recover , le pere est dereigne per precontract , et devie : ceux que droit ? case . tenant in la tail enfeoffe la file son fits et un estrange feme ove grrranty et entr ' in religion et est professe , le fits port breif de formadon , quia habitum &c. eux pledont le feoffment de son auncestor ove garranty , il plede que il n'ad riens per discent , per que il recover , avant execution sue le pere est dereigne per precontract , et devie ; il sue avaunt execution per que le viscount et un estranger luy mertont in seisin , puis le fits conust les tenements estre le droit l'estranger come ceux que il ad de son done ; puis quel conusans l'estranger grant et rendec mesmes les tenements al fits pur term de sa vie , la reversion regardant a luy , puis il grant la reversion al viscount in fee per force de quel grant le tenant attorne , les fits alien a ses deux femes in fee ; le viscount perseyvant l'alienation estre a sa disheritance entr ' in l'un moiety et de l'auter moiety il port breif d'entry in consimili casu et recover per default ; les femes sont a lour recovery : ceux que droit ? case . tenements sont lesses a un home a term de sa vie , le remainder a un auter a term de sa vie , et apres son decesse le remainder as droit heirs de son corps engendres , le primer tenant a term de vie devie , le second entr ' et alien ' a un home en fee , le quel done l'un moiety in tail , l'auter moiety a term de vie , et puis per auter fait grant la reversion a un auter ; le tenant a term de vie attorne , cestuy qu' avoit estate in le second remainder enfeffa un homa de la moiety d'un carve de terre et devie , son fits entr ' et port breif de formedon in remainder devers le tenant a term de vie et le tenant in le tail et recover per default , et enfeffe un home in fee a luy et ses heirs et a ses assignes , et reprent estate a luy & a un auter vers queux &c. ceux que droit ? &c. case . home seisie de carves de terre [ l'un in le tail l'auter in feesimple ] ad issue deux fits per deux venters , et done la carve de terre de see simple a son fits eigne in le tail , le quel charge a deux , a l'un tanque il soit advance a benefice de seint esglise , a l'auter tanque il eit purchase l. de terre . celuy qui duist estre advance prent sa cosin a feme , puis divorce se prent perenter le baron & sa feme al suit la feme ; le pere devie , le fits eigne entr ' in l'auter carve de terre et ad issue deux filler et devie , et estranger abate et enfeffe les deux chargees a eux et a les heirs celuy qui duist estre advance ; celuy qui duist estre avaunce relest tout le droit que il ad in la terre al joint feffee , l'auter confirme son estate in le rent , les deux soers portount breif de mortd'ancestor , l'un est summon & sever , l'auter sue avaunt et recover et ad execution del ' carve de terre tailè per le pere ; puis el prent a baron le tenant del ' auter carve de terre ; le rent est arrere ; celuy qui duist estre avaunce distrein ; rescous luy est fait : ceux que droit ? &c. case . home seisie de certein terre ad issue bastard & mulier , est disseisie et devie ; le mulier deins age ouste le disseisor et lest la terre al aunt de part le pere a term des anns , et puis confirme sa estate in fee ; la feme prent le disseisor a baron , l'infant a son plein age port dum fuit infra etatem , pendant le breif composition se prent perenter les parties , issint què si le baron & sa feme paiont certeins deniers a certein jour que la terre demourge al baron & sa feme & a les heirs del ' corps la feme engendres , et si el devie sans heir de son corps què la terre demourge as droits heirs le baron . al jour assis ils paient les deniers per que le brief abate . le bastard port breif de entry in le quibus devers le baron & sa feme , et recover per default , et alien a un estranger en fee ; le baron devie ; la feme port cui in vita vers l'estranger , il vouch a garranty le bastard , il enter in le garranty , et plede , et perde . le demandant sue execution , mes le tenant nemy . le bastard devie , l'estranger sue execution envers la feme come heir al bastard et ad execution per default . le mulier ad issue et devie : ceux que droit ? &c. case . home seisie de terre al comen ley et de terre departible enter males [ d'ont dames sont de la moiety dowables ] tient l'un moiety per service de chivaler , l'auter moiety in socage , alien ' la terre al comen ley ove tout le remenant a un home a tener ( devant le statute ) de luy per service de chivaler rendrant a luy certein rent , et ad issue bastard & mulier . le mulier prent feme et dowe sa feme per assent de son pere de quanque el est dowable al comen ley et per usage . le pere devie . le bastard happe le rent & entr ' in le terre . le mulier distreine le tenant , il fait replevin , devant avowrie il est nonsue , per que retorn ' est agard . breif est port vers le bastard , il allege non-tenure general per que le breif abate . le bastard ad issue et devie : le mulier entr ' et devie sans issue . l'issue le bastard entr ' et alien ' et reprent estate a luy et a sa feme . ceux que droit ? &c. case . la reversion d'un feme tenant a term de vie est grant a un home , mes le tenant n'attorne my . le grantee ad issue deux filles , l'un fait felonie in la vie son pier , puis quel el est wayve . le pere devie . le seignior de que la terre est tenus prent l'auter file a feme et ount issue fits et deux filles . le tenant rendr ' son estate al grantee . le grantee devie , un estranger abate et lest la terre al feme le seignior et al fits , a terme de vie le seignior ; et puis il port breif de wast envers le seignior & sa feme et le fits . le seignior plede feint plee per que la feme & son fits sont resceu a defendre lour droit , et plede nul wast ; trove est nul wast , per que il ne prent riens per son breif . le seignior devie ; l'abator entr ; la feme que fuist waive devie ; la feme le seignior & le fits deviount . breif est port vers l'abator , il vouch a garranty les deux filles per un faux fait de lour frere , l'un conust , l'auter dedit . puis le parol est mise sans jour per demise le roy. les deux filles deviount sans heirs de lour corps , mes cestuy que dedit le fait survesquist . l'abator enfeffe son frere & le primer tenant a terme de vie , in fee , et reprent estate a luy in fee ove garranty , et prent la feme a feme . son frere devie sans heir de son corps . le frere le seignior prent a feme la soer la grantor , et ount issue , et deviount . ceux que droit ? &c. case . un infant deins age est disseisie per un feme sole d'un molin quel charge mesme le molin a un auter infant deins age , le quel grant mesme la charge a un home & a un feme sole , les queux s'entermariount . le second infant a son plein age port dum fuit infra etatem advers le baron & sa feme , eux fount default , grand cape issuist ; puis divorce se prent perenter le baron & sa feme ; il sue avaunt son breif et recover per default . le primer infant prent la disseisess a feme deins age , en qu' possession celuy qu' recover relest , en que temps le molin eschuste . la feme devie , le baron soy tient eins , et grant la moiety del'scite a celuy qui recoverist . ceux que droit ? case . le disseisor prent sa neice a feme et enfeoffe le fits le disseisee & sa feme in frankmarriage et reprent estate a luy & a sa feme a term d'auter vie . le disseisee port l'assise , pendant le breif il relest ( le release nient plede ) issint que il recover . le disseisor devie , celuy a que vie la terre fuist lesse devie , le fits & sa feme entront , vers queux l'auter feme port breif de dower . ceux que droit ? case . aiel pere & fits , le fits purchase un carve de terre , et devie seisie , un estranger abate et alien l'un moiety in fee , l'auter moiety a luy & a les heirs de corps son pere engendres . l'alienee lest la terre a sa soer demesne , et devie . l'aunt le fits port breif de cosinage , pendant quel breif el ad un soer que se lest a nestr ' . le pere devie , sa feme priviment enseint . l'aunt sue avaunt son breif & recover per default , et soffre sa soer a tener en comen ovesque luy . puis el confirme l'estate sa soer que recover . puis l'enfant se lest a nestre la feme que perde est a son recovery &c. case . un infant deins age , et un auter de plein age fount eschange des terres . celuy deins age entr ' en sa terre que il ad per eschange . celuy de plein age entr ' en sa terre , et done mesme la terre a un home in la tail. l'infant deins age port assise vers celuy de plein age , et le tenant en la tail , et recover ; et alien a un home en fee. l'alienee lest les terres a terme des anns , en que possession l'infant deins age ore a son plein age ensemble ove celuy qui avoit estate de fee relessont ove clause de garranty per un mesme fait . celuy a qu' le release le fist lest ouster a un estranger fc . l'un moiety a term de vie , l'auter woiety a term des anns , et grant la reversion a un estranger per fine , mes le tenant n'attorne my . le tenant en la tail ad issue fill ' puis breif est port vers tenant en la tail , il conust estre le villein celuy qui fuist deins age en court , per que le breif abate . le tenant in la tail ad issue auter file , et devie . ceux que droit ? case . home seisie d'un carve de terre lest mesme la terre a deux a term des anns , et fait un release a eux quel est bailè en owel main sur condition , que s'ils soient oustès deins le term de parcel ou de tout per luy que le release soit bon . puis le lessor fait un estatute marchant a un estranger et ouste les lessees d'un acre de terre , et fait felony ; puis la quel il est utlage , issint que cel acre de terre est prise in la maine le roy. les lessees sueont breif de detinue d'escript et recover , et sueont per petition au roy pur l'acre de terre ; pendant quel suit le jour de l'estatute est encourge , per que il sue execution devers les lessees et ad execution . eux sueont ouster petition au roy et ount un acre de terre en lieu de cel acre . le utlagè reverse l'utlagarie et sue per petition au roy pur cel acre , et ad execution . l'un des lessees est clerk convict & liverè al ordinary , et puis fait sa purgation , en que possession l'auter lessee release : ceux &c. en ount &c. case . feme sole disseisist deux joint-tenants . eux portount assise , l'un est summon et sever , l'auter sue avaunt sole et recover la moiety . celuy qui fuist summon et sever purchase un carve de terre et alien ' ceo al feme en mortgage et prent mesme la feme a feme durant le coverture le jour est encourge puis divorce se prent perenter le baron & sa feme al suit la feme la feme soy tient eins en la terre que el ad per disseisin & le baron en la terre lesse in mortgage la feme ouste le baron de la terre que il ad in mortgage et dona mesme la terre al un estranger en fee quel ad terre al comen ley & terre departible il ad issue fits et alien & devie le disseisiee ad issue et devie . ceux que droit ? &c. finis . notes, typically marginal, from the original text notes for div a -e venire facias . freehold xls. hundredors . forfeiture . appeal . praemunire . warantia chartae . ex gravi quaerela . attaint . bre ' de droit . audita querela sur stat. merchant . rationabili parte . assise . customs & services . customs & services . juris utrum . droit sur disclaimer . customs & services . ne injuste vexes . decies tantum . champerty . quo minus . quod ei deforciat . parco fracto . mordancestor . certificate d' assise . appeal de mayhem . quale jus puis cessavit . prohibition . bre ' d'estrepement puis scire facias . bre ' de disceit . stat. de labourers . forger de faux faits . curia claudenda . nuper obiit . faux jugement . bre ' d'error . diem clausit extremum . quare incumbravit . contra formam feoffamenti . precipe en capite . disceit . action sur le case . statute forester . nota. sci ' fa ' d'executer un fine . nota. clerks del ' chancery . persons ayant privilege en l'excheker . nota. droit en londres . ou pr ' qd ' reddat en county palatine . nota. conclusio primae lectionis . nota. roy. popular action . roy , royne consort & trespassor . entrusion sur possessessions la royne . detinue de chartres . detinue de chartres . precipe quod reddat . coparceners . detinue de chartres . detinue . detinue . fait de feoffment . replevin . office. tenants en comon . quare impedit . quare impedit . quod ci deforceat . quod ei deforceat . precipe quod reddat . precipe quod reddat . certificate d'assise . dett &c. perenter alien & denison . dett per alien vers alien . dett per alien ( fait denison pend ' le bre ' ) vers denison . covenant per denison vers alien & denison . dett per alien puis fait denison , vers denison . nota. dett vers executors . grant per roy al major & communaltie . parson enhable per bulles del ' pape . moigne enhable destre fermour le roy. feme d'un attaint & qui ad abjure le realme . prior datise & successor . moigne & j.s. grantees le roy de deux markets destre tenus ambideux sur mesme les jours . nusance . moigne vicar perpetual . abbe & commoigne . trespass per moign , & auters . battery per abbe & commoigne . stat ' h. . qui tam. conspiracy ▪ accompt . replevin . quod ei deforceat . precipe in capite . precipe quod reddat . precipe quod reddat . dett lou plaintiff est utlage . precipe qd ' reddat per clerk convict , ou attaint . nota. trespass . ne injuste vexes . dett . non est factum . trespass . non cul . trespass . justification . ravishment de garde . dett sur obl ' . release . dett sur obl ' . release . quare impedit . refusal d'evesque , quare non admisit . plaintiff ouste de trial. droit d' advowson . ne admittas . quare incumbravit . demandant ouste de trial. abbe parson impersonee & successor . l'evesque alien sine assensu capituli , ie successor serra ouste de sop triall . wast per soers , un de plein l'auter deins age , ils serront oustès de lour trial. grand cape . dower . breif de disceit d'avoider un recovery . disceit . pr ' quod reddat vers major & communalty . attaint . release . neint son fait . mordancestor . breif de droit . release de collateral ancestor . breif d'ayel . testymoynes . br ' d'entre sur disseisin . testymoyne utlage , ou mort . juris utrum . release . assise de mordancestor . breif de droit . grand cape en precipe quod reddat . deins age . faux judgment . clerk d'exchequer sue per bill en b.r. plede custom destre sue solment en l'exchequer , bill vers gardien del ' fleet en dett pur escape qui plede custom destre sue touts foits per breif . breif de dett . quare impedit . advowson appendant . advowson en gross . precipe quod reddat . dower . cui in vita . customs & services . nota. replevin . property . action sur private statute & nul tiel estat . plede . precipe quod reddat . feoffment plede d'un moigne professe . dett port vers un come chivaler , qui dit quil est counte , nest triable &c. contra vers un com evesque qui est abbe . entr ' sur disseisin . recovery en wast . nest mesm terr recov ' . dett sur obligation . sci ' fa ' d' aver execution sur recognizance faux retorne del ' vic' . sci ' fa ' d'executer fine . nient comprise . trespass . recovery plede . attachment sur prohibition . excommengement . pr ' quod reddat . nota. lease sur condition de re-entry . lessee pur vie . feoffe sur condition . seignior & tenant per service de chivaler . gardein en chivalrie . lessor & lessee pur anns . seignior & tenant . l'heire le seignior . l'alienee del ' terres tenus del ' roy en cheif alienès sans licene . lessor pur anns reserve l. annualment a luy & ses heires . grantee de loads de fein d'estre prise annualment del ' pree le grantor . tenant pur anns . heire . lessee pur vie . heire del ' lessor . clause de distress . lease pur anns . heire . grantee de rent . tenant en remainder per devise . grantee de jointenants . lessee pur vie rend ' d. rent . grantee d'un rent-charge . grantee de trois jointenants . grantee d'un rent-charge de jointenants . grantee d'un rent-charge sur condition . grantee de rent-charge . grantee d'un rent-charge per disseisor . feme et son baron . continual claime . grantee d'un advowson . seignior et tenant . lease d'● mannor & stock d'aves . lessor . deux jointenants . grantee d'un d'eux . . jointenants . grantee de rent de d'eux . grantee de rent-charge . bargainor et son heire . grantee del ' rent . grantee del ' rent . grantee d'un rent charge . grantee de rent charge . grantee de rent-charge . grantee de rent-charge . grantee de rent-charge . cestuy que use . grantee d'un rent-charge . baron de feme sole graantee d'un rent charge . estate conditional . seignior 〈◊〉 ad franktenement . grantee d' un ' tn retn hors de terre deins counties . done en tail al baron & feme . morgagor franktenement alienè . franktenement purchase . franktenement recoverè . franktenement extendè . grantee del ' reversion . vic' empanel . seignior uncapable destre jurour . nota. terre seisie pur fine d'alienation . grantee d'un rent charge . nota. villen retorne juror . xii retorne de gildeable xii de franchise . persons attaint empanel . pere & fits empanel . un empanel qu'est en malady &c. lessee pur vie del ' parentee le roy empanel . disseisor & disseisee empanel . estranger abator empanel . done empanel . recover or per errou ' judgement rerule . male retorne del ' vic' vic' retorne ●n qui recover vers luy . bon retorne . vic' empanell person sufficient qui devie , et bon retorne . grantee d'un rent charge al vic' retorne . viscount retorne son tenant pur vie apres il luy emplede . viscount empanel son tenant pur vie . lessee pur vie empanel . nota. lessee pur vie empanel . grantor retorne sur nquest . disseisor empanel . franchise . dett . aliens retorne . covenant . aliens retorne . xii jurours forsque retorne . estranger empanel . nota. viscount discharge . novel viscount . seigniors de parliament & barons sufficient hundredors . hundredor alien son terre , ou . grant rent charge al value de ceo , et bon . si le terre gist en auter hundred n'est sufficient . nota. hundredor poet demurre en auter 〈◊〉 . nota. un demurr ' en hundred ' qu'est deins lete . ou deins un franchise ou ville corporate . ou recover per erronious judgment est sufficient hundredor . nota. home qui demurt deins un mannor n'est snff ' hundredor ' . home qui ad office de bailywick . ou advowson al value de l. ou rent ou comen d'estovers &c. ou market ou faire pur vie . ou free piscary ou frankfold . ou toll ou passage . ou lete , est sufficient hundredor . lou visc ' . perdra penalty del ' stat ' . nota. vic' retorne nul hundredors . vic' retorne forsq ' . hundredors . viscount . baily del ' franchise . vic' retorne del ' hundred ' prochein adjacent et nul ou le venue est . nota. nota. proche in hundred ' . forsque retorne de mesme hundred ' . nota. nota. si nul hundredor est retorne vic' perdra penalty . si le venue surge d'un rape & vic' retorne desouth . perdra penalty . lou vic' perdra penalty sil ne retorne hundredors . nul hundredors retorne . deux viscounts . ve ' fa ' direct al hundred proch ' adjoinant sur surmise del ' plaintiff . ve ' fa ' sue per def ' sur default del ' pl't . ve ' fa ' sue tam per pl't quam per def. hundredors tant retorne . touts hundredors retorne lou sont forsque , et bon . nota. venue en ville en le confine de deux hundreds . lou vic' perdra penalty quant il retorne hundredors . retorre de hundredors nest bon nient obstant ne soit ascun challenge . lou les justices poient agard● tales . lou le plaintiff n'avera tales . tales ne poient estre agard . les justices poient agard tales . justices poient agarder tales . plaintiff poet aver tales . semble . nota. justic ' ne poent agard tales . justices poient agarder tales . justices ne poient agarder tales . semble . lou les justices poient oust le plaintiff de son tales . poient agard al prier del ' plaintiff . ne poient agard . protection jette pur def . plaintiff ne poet aver auter tales puis panell quash . challenge de l'array . bailiff de franchise . plaintiff ne prendra benefit de circumstantibus . plaintiff ne prendra benefit de son triall . plaintiff ne proceedera en son triall . wast . default . justices ne poient agarder tales . demandant ne proceedera a son triall . plaintiff navera tales . challenge de l'array . defendant ne proceedera al enquest sur tales . plaintiff ouste de tales . villein ne poet aver tales . nota. plaintiff n'avera tales . nisi prius returne per coroners . nisi prius per proviso . si denison sue alien poet aver tales . plaintiff poet aver tales del ' prochein hundred si le primer enquest sont deins son distress . nota. ☞ tales poient estre prie per attorney . vouchee en pr ' qd ' redd ' poet prier tales coment il n'est plaintiff ne defendant . sont plaintiffs en repl ' & un fist def . l'auters ▪ ne poient prier tales . deux coparceners eu formedon l'un fist def . l'auter poet prier tales . deux coprrceners plaintiffs , l'un release l'auter poet prier tales . major & communalty en lour proper persons ne poient prier tales . evesque ou abbe poient . plaintiff ne poet prier tales en dett si le distr ' n'est deliver de record ; ou si vic' retorne forsque ou nul issues . prior datiff port wast & est remove , le novel prior poet prier tales . deux coparceners l'un prist baron , l'auter poet prier tales . deux coparceners et nul d'eux avera tales . deux pl'ts en tns ' l'un est utlage , nul d'eux poet prier tales . deux coheirs pl'ts en cui en vita , l'un est moyne professe , l'auter ne poet prier tales . major tenant in comen ove luy mesme de terre en que j. s. fait tns ' j. s. ne poet prier tales . snr ' vers ten't enne injuste vexes , ten't poet prier tales , snr ' nemy . deux pl'ts en quare impedit un fist default l'auter ne poet prier tales . deux exec ' en dett l'un fist default , l'auter ne poet prier tales . deux pl'ts l'un deven ' surdc & mute l'auter ne poet prier tales . defendant fist attornies l'un prie joua en bank l'auter tales , & ceo avera . deux gardeins d'un infant l'un ne poet prier-tales sans l'auter . deux attorn ' en pr ' qd ' redd ' l'un n'appiert l'auter ne poet prier tales . dean ( ove chapiter ) port dett & morust , novel dean poet prier tales per lour primer attorn ' major & cominalty port ' tn's il morust novel major &c. poet prier tales . s'un abbe per attorn ' port tns ' & est fait evesque poet prier tales . si adm'or port dett & adc'on est comitt al auter ne poet prier tales . vic' poet empannel preist on deacon sur tales ayant sufficient lay fee ; mes nemy infant ou d'age de anns . mes poet emapanel coroners , ou capital ministers d'un corporation , ou foresters &c. le roy. et coroners poient empanel le viscount . ou home qui est mute mes . poet oyer ou est caece & mutes mes ei perfect intelligence ( mes nemy un qui est surde . ) ou home excomenge poet estre empanel , mes nemy un utlage , ou attaint . ou de non sane memory , ou alien , ou clerk attaint , ou un attaint de faüx verdit . mes fits d'un alien enemy nee deins le terre , clerk , & un ayant lucida intervalla poient estre empane nota. nota. principal challenge . villein . compere . compere al bastard . challenge pur favour . principal challenge . principal challenge . principal challenge . challenge pur favour principal challenge . principal challenge . principal challenges . nul principal challenge . nul principal challengene pur favour . nul challenge pur treiter jurour . principal challenge . semble . nul principal challenge pur cause . principal challenge . semble . nul bon challenge . notes for div a -e nota. nota. note . nota. a gospel plea (interwoven with a rational and legal) for the lawfulness and continuance fo the antient setled maintenance and tenths of the ministers of the gospel in two parts, proving that there is a just, competent, comfortable maintenance ... that the present opposition against tithes ... / by william prynne ... prynne, william, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing p estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a gospel plea (interwoven with a rational and legal) for the lawfulness and continuance fo the antient setled maintenance and tenths of the ministers of the gospel in two parts, proving that there is a just, competent, comfortable maintenance ... that the present opposition against tithes ... / by william prynne ... prynne, william, - . v. (various pagings) printed by t. child and l. parry for edward thomas, london : . parts & have special t.p.'s and separate pagings. bound with "the remainder, or second part of a gospel plea." imperfect: pages stained with loss of print. errata: p. , . reproduction of original in the union theological seminary library, new york. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng tithes. law and gospel. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion a gospel plea ( interwoven with a rational and legal ) for the lawfulness & continuance of the antient setled maintenance and tenths of the ministers of the gospel : in two parts . proving that there is a just , competent , comfortable maintenance due to all lawfull painfull preachers & ministers of the gospel , by divine right , institution , & express texts , precepts of the gospel : that glebes & tithes are such a maintenance , & due to ministers by divine right , law , gospel : that if substracted or detained , they may lawfully be inforced by coercive laws and penalties : that tithes are no real burden nor grievance to the people ; the abolishing them , no ease or benefit to farmers , husbandmen , or poor people , but a prejudice and loss . that the present opposition against tithes , proceeds not from any real grounds of conscience , but base covetousnesse , carnal policy , hatred to , and a jesuitical , anabaptistical design , to subvert , ruine our ministers , church , religion . with a satisfactory answer to all cavils and material objections to the contrary . by william prynne of swainswick , esquire , a bencher of lincolns inne . mal. . , . will a man rob god ? yet ye have robbed me : but ye say , wherein have we robbed thee ? in tithes and offerings . ye are cursed with a curse , for ye have robbed me , even this whole nation . mat. . . render therefore to caesar the things that are caesars , and unto god the things that are his . aug . serm . . si tu illam decimam non dederis , dabis impio militi , quod non vis dare deo & sacerdoti : hoc tollit fiscus , quod non accepit christus . london , printed by t. childe , and l. parry , for edward thomas , and are to be sold at the adam and eve in little britain , . to my most high , mighty , great , dreadfull , omnipotent , omnipresent , omniscient , righteous , true , faithfull , all-gracious , all-sufficient , everliving , everlasting , immutable , covenant-keeping lord god ; the god of my life , health , strength , mercy , preservation , consolation , supportation , salvation , deliverance , praise . o god the saviour of israel , ( of england too , antiently stiled regnum dei , gods kingdom ) thou art god alone , and there is none else . whom have i in heaven but thee ? and there is none upon earth , that i desire besides thee . in thee alone i live , move , and have my being . thou art the strength of my heart , and my portion for ever . my whole spirit , soul , body , parts , endowments natural , spiritual , are only of thee , through thee : o sanctifie them wholly for , and only to thee ; to whom alone i desire intirely and eternally to devote them ; as due to none but thee , and that by right of creation , redemption , resignation , preservation , and that extraordinary tribute of gratitude i stand most deeply engaged to render to thy most gracious majesty , for those many and manifold wonders of preservation , supportation , concomitation , protection , consolation , absolution , vindication and restauration , thou hast ( of thy free grace ) most miraculously extended to me , ( the m●anest and unworthyest of all thy servants ) in , under , from all my former and late injurious , illegal sufferings , oppressions , imprisonments , inhumane close restraints , exiles , in ten several prisons , castles ( some of them at remotest distance from all acquaintance , kindred , friends and thy publick ordinances , under some rude , barbarous armed gardians and men of blood , of purpose to destroy me , where thou wast present with me , as with daniel in the lyons den , paul in the lyons mouth , the three children in the midst of the fiery furnace , jonah in the whales belly , to secure , comfort and supply me ) for about eleven years space ; through the malice and cruelty of mercilesse men : yet ( blessed be thy holy name ) for no other cause or crime thy poor servants conscience is guilty of ( his last close imprisonments in three several castles being without the least examination , hearing , accusation , charge of any particular offence against him , or yet declared to him ) but only for his sincere cordial desire to discharge his bounden duty to glorifie thee in his generation , by apposing the dangerous wrath-provoking errors and corruptions of the age in which he liveth ; by contending earnestly for the faith which was once delivered unto the saints , according to thy commands , and for the setled fundamental laws , liberties , rights , government of his distracted native countrie , against all secret underminers , open oppugners or subverters of them , to the uttermost of his ability : by a consciencious inviolable observation of all those solemn sacred oaths , protestations , covenants and obligations , ( prescribed by those lawfull higher powers thou commandedst him to submit to under pain of damnation ) wherewith he hath frequently bound his soul , not so much to men as to thee , who art a most faithfull promise-oath-covenant-keeping god , especially of those oathes and covenants wherewith thou vouchsafest to oblige thy self even to meer dust and ashes , both immutable and inviolable , never violating , nor repenting of them in the least degree , and obliging men both by thine own example , and precepts to do the like , in all their publick or private oathes , vowes , covenants to thee or men , under pain of temporal wrath here , and eternal exclusion from thy holy hill : and for not daring to confederate or comply ( against his oathes , covenants , manifold publick engagements , conscience , judgement and thy sacred inhibitions ) with those who are given to change ; many of whose calamities and ruines are sodainly risen and fallen upon them , by thy divine justice ( even from those they least suspected , and most relyed on for protection ) for the manifold changes they presumed to make against their oaths , vows , trusts , protestations , covenants , and unrighteous oppressing of their dearest christian friends , brethren , and thy suffering servant among others . now all glory , honour , power , salvation and praise be for ever rendred by me and all thy glorious saints and angles in heaven and earth , because true and righteous are thy judgements : and because the deliverance of me thy oppressed servant ( without any wound to his conscience , dishonour to thy name , or scandal to thy people ) is exceeding gracious and glorious . now know i , ( again and again ) that the lord loveth his anointed ; that he hath heard him ( and others praying for him ) from his holy heaven ; with the saving strength of his right hand . some ( of his self-exalting oppressors ) trusted in chariots , and some in horses ; but he remembred the lord his god : they are brought down and fallen , but he is risen and stands upright : who therefore ever will rejoyce greatly in thy salvation , and in the name of his god will set up his banners . for thou hast broken the gates of brasse , and cut the bars of iron in sunder : thou hast sent thy holy angel and knocked off the chains from my long-fettered hands , and made the long-barred iron castle gates ( wherein i was close shut up ) to open of their own accord ( without any enforced long-expected petition from me . ) thou hast rescued me from more then . quaternions of souldiers , who most strictly garded me day and night , as they did thy imprisoned apostle peter , ( and more narrowly than any formerly under the prelates greatest tyranny ) and delivered him out of the hand of herod , and from all the expectation of the people of the jews ; the jesuits and popish priests , who marched freely abroad , not only preaching , but printing and dispersing no lesse then . grosse popish books in defence of their religion , and condemning ours for heresie , whiles i ( their chief oppugner ) was shut up so close in three remote castles , that i could neither write against , nor discover their plots to undermine our church , state , religion , nor yet send letters to my imprisoners to demand my liberty , unless i would first give copies of them to my gardians , and then trust them to send them when and by whom they pleased , nor have admission to thy publick ordinances for above two years space . in thankfull commemoration of which my late and great deliverance from this aegyptian bondage , i do here presume , in all humility to prostrate at thy feet , and ded●cate to thee , the great gaole-delivering , prisoner-loosing god , ( who saiest to the prisoners goe forth , and to them that are in darknesse shevv your selves ) this mean and unworthy gospel plea , for the lawfulnesse and continuance of the antient setled maintenance and tithes of thy ministers of the gospel , ( reserved to and by thy self as thy devoted portion , debt , due ) whereof many now by fraud and violence , endeavour sacrilegiously to rob both thee and them ; as the first fruits of my enlargement , a second ebenezer , hitherto hath the lord helped me , and a lasting monument to posterity of my gratitude and thankfulness to thee my god , for my late restitution to so much liberty and freedom , as to be able , thus once more publickly to plead thine own and thy ministers cause , against jesuits , anabaptists , quakers , and all other open oppugners , subverters of our church , state , and secret underminers of the true preachers and preaching of the gospel , who now like gebal , ammon , amalek , edom , ismael , moab , the hagarens , philistines , inhabitants of tyre , and armed assur of old , have consulted together with one consent , and are confederate against thee ; and have said , come and let us cut them off from being a nation , that the name of israel may be no more in remembrance . beseeching thy majesty most graciously to accept it , most powerfully to protect and so effectually to blesse , prosper it , and thy servant , against all these combined confederates , that they may be no way able to resist thy truth , wisdom , spirit , appearing , pleading in it , by it ; but either like convicted seducers or seduced persons , fall down flat on their faces before it , worship thee and report , that god is in it ( and in thy servant ) of a truth . or , in case of wilfull malicious obstinacy , against thee and thy faithfull ministers , houses of publick worship , truth and gospel , do unto them as unto the midianites , as to sisera , and to jabin at the brook of kison , which perished at endor and became as dung for the earth : make their nobles like oreb and zeeb , yea make all their princes as zebah , and as salmunna ; who said ( as these do now ) let us take to our selves the houses of god in possession . o my god make them as a wheel , as the stubble before the wind : as the fire burneth the wood , and as the flame setteth the mountains on fire ; so persecute them with thy tempest , and make them afraid of thy storm ; fill their faces with shame , that they may seek thy name o lord ; let them be confounded and troubled for ever , yea let them be put to shame and perish : that men ( these men ) may know , that thou whose name alone is jehovah , art the most high over all the earth . so we thy people and sheep of thy pasture will give thee thanks for ever ; we will shew forth thy praise to all generations . and thy servant davids resolution , whiles i live will i praise the lord , i will sing praises unto my god , while i have any being , shall through thy grace be both the resolution and practice of swainswick sep. . thy unworthy , unprofitable , redeemed , preserved and frequently enlarged servant and vassal william prynne . to the unprejudiced christian reader . kind reader , the . psal . in my weak judgement , is both a lively character of the deplorable condition of gods church of late years , and likewise a most excellent morning and evening prayer for it , in publick or private . the psalmist thus complains , that god ( by the oppressing sword of combined enemies , as psa . . imports ) had broken down his churches hedges , so that all they that passed by the way did pluck her , the boar out of the forrest did waste it , and the wild beasts of the field devour it . the antient hedges of the church here planted and spread in our nation , to wit , gods divine protection and law ; the patronage , rights , franchises , privileges , immunities , granted , confirmed to our churches , by the manifold great charters , lawes , statutes , of such bountifull devout kings and queens as god himself predicted , should be nursing fathers and nursing mothers unto his church under the gospel , and bring their glory and honour to it ; and kings of iles , amongst others ; having been of late years very much broken down and almost levelled to the dust , by arbitrarie committees , sequestrations , and the oppressing all-devouring sword of war , ( which god hath kept so long unsheathed , without returning into the scabberd these many years , for the just punishment of our manifold sins and enormities ) all they that go by the way ( or in by-wayes ) taking advantage thereof , have so plucked , and the wilde-boares out of the wood , and wilde-men , and wilde-beasts of the field , have so wasted , devoured the best and richest part of our churches patrimony , originally designed by the parliament , by a special bill tendered to the late king at oxford , april . ( when arch-bishops , bishops , deans and chapters were first voted down , and extirpated as none of our heavenly fathers plants or planting ) for the encrease of the crown-revenues , to ease the people in their future taxes ; and the augmentation of our ministers maintenance and incompetent livings : that there is little or none of it now remaining undevoured by them , for either of these two publick ends : and many new highway men , wilde-boares and beasts , as well as old , encouraged by former rich church-plunders , in stead of imitating faithfull abraham , ( whose heirs and children they professe themselves ) who gave the tenth of all his spoyls of warre to melchisedec priest of the most high god , ( a type of our saviour christ , if not christ himself , as some probably assert ) they most eagerly and violently attempt to spoyl , plunder all the evangelical priests and ministers of god throughout the nation at one blow ( without any lawfull tryal by their peers , due processe of law , or legal conviction of any capital crimes , which cannot forfeit their churches inheritance , which is not so vested in them as either to forfeit or alien , by the law of god or the realm ) of all their inconsiderable remaining tithes , glebes , and setled antient maintenance , and of their very ministry too , as jewish and antichristian , as john canne the old anabaptist , in his new voice from the alehouse rather , than the temple ( which certainly is as jewish and antichristian as he would have tithes to be ) with sundry late petitions , proceedings , proclaim to all the world , and strip them naked of all other coercive maintenance for the future , to starve them and their families bodies , and the peoples souls : that so a new generation of ambulatory fryers mendicants and itinerary predicants , fixed to no certain parish or parishes , selected out of those swarms of jesuits , seminary priests and popish fryers , now in england under the disguises of anabaptists , gifted brethren , dippers , seekers , quakers , new-lights , mechanicks of all trades , gentlemen , troopers and souldiers too , ( ignatius loyola their father and founder of their order , being a souldier by his profession , as diverse of his disciples are now amongst us , as many wise men believe , and some on their own knowledge averre ) may succeed them in their ministry , to subvert our church , religion , and reduce us back to rome ; the pope now living , within these few years , affirmed to some english gentlemen of quality in rome ( who out of curiosity only went to see him , being protestants ) that he hoped before he died ( though he were aged ) to see england perfectly reduced to her former obedience to the see of rome , having sent many jesuits , priests , fryers from all parts into england , and particularly into the army ( as ramsy the late detected jesuit at new-castle , under the vizor of a converted anabaptized jew , confessed in his printed examination there lately taken , and sent up with him to whitehall . ) against whom john canne might have done well to have pressed those , to whom he dedicated his voice from the temple , to execute the statute of eliz. c. . particularly made against them , as most dangerous insufferable traytors , purposely sent over , to worke the ruine , desolation , and destruction of the whole realm , as well as of our church and religion , as that statute resolves ; and not to have most ignorantly and maliciously wrested it , ( contrary both to the very letter and intention ) against our godly protestant ministers only ( their greatest opposites , eye-sores ) to strip them of their benefices , livelihood and lives together ( the whole scope of his lamentable voice ) without so much as uttering one word against these wilde boars and beasts of rome , with whom he and his companions the anabaptists , are apparent confederates , both in their principles and practices against our ministers maintenance , tithes , callings , laws , and setled government , to their eternal infamy . the sad consideration whereof hath engaged me , though no impropriator ( whose cause i plead not ) nor other tithe-receiver , but a consciencious tithe-payer ( as my ancestors were before me ) without any retaining fee , or other solicitation , to appear publickly in the defence of this common cause of god and all his faithfull ministers tithes and antient setled maintenance , being through his mercy and their prayers enlarged from my long close remote imprisonments , as i did occasionally in private , whiles a close prisoner in pendennis castle in cornwall ( in december and january last ) against some officers and souldiers there , who publickly subscribed in the castle by sound of drum three several mornings , and promoted in the country a petition for abolishing all tithes ( though our ministers own by all divine and humane lawes , rights ; which neither our souldiers nor any mortals now living gave to them , nor have any pretence of law , power or authority from god or our nation to take from them ) and all other compulsory maintenance in lieu of them for ministers ; sent to them ( and to other garisons , as they then informed me ) by the general councell of officers of the army from st. james , both for their own subscriptions ( though few or none of them or other subscribers of such petitions , tithe-payers ) and such hands of countrymen , as they could procure . upon which occasion , i had some brief discourses with some of them concerning the lawfulness and antiquity of tithes , first paid by souldiers out of the very spoyls of battel , taken in the very first war we read of , to the very first priest of god we find recorded in the scripture , and therefore admired that our army-officers , souldiers in this age should so far degenerate , as to be the very ring-leaders and chief oppugners of them : drawing up some brief notes of this subject out of scripture ( to help passe the time ) in defence of tithes , relating more particularly to souldiers , to silence , satisfie , reclaim them from this sacrilegious design : which having since enlarged with arguments and answers to their chief objections drawn from their own military professions , for the better satisfaction , conviction of all sword men and others , i hope , neither officers nor souldiers , nor any others truly fearing god ( if they consider levit. . . mat. . , , . prov. . . & . . & . . & . . & . , , . & . . & . . psal . . . sam. . , . tim. . . luke . . ) will or can be justly offended with me , no more for writing truth , than speaking it to their faces , as i did upon all occasions whiles among them ; not to defame , but to inform and reform them , for their own and the publick good , in what i conceive not warrantable by , but repugnant to gods word and their duties as souldiers , as christians , and to those known fundamental laws , liberties of the nation they were purposely raised , commissioned , waged , engaged by protestations , covenants , and their own voluntary printed declarations , inviolably to protect , but not subvert ; and that they will not repute it a capital crime in me , not to prove a flatterer , dissembler , or not to act , or write wittingly against my science and conscience , when our ministers maintenance , calling , religion , gods glory , laws , liberties , all we have , or hope for , are in danger of such a sad , sodain , destructive convulsion , concussion ( if not subversion ) as i long since by authority of parliament discovered in romes master-piece , ( and since that in my speech in parliament and memento , well worth perusal now ) when so many known jesuits under a new provincial ( which hugh peters himself reported , as i have been credibly informed ) are now even in london it self , acting as busily , and sitting there in council as duely , as when the reclaimed author of that discovery ( purposely sent from rome for the purposes therein discovered ) was resident amongst them . o that these professed enemies of our church , religion , nation , and those janizaries of rome , may not sow their tares of error , and seeds of ruine and desolation amongst us , whiles almost our whole nation ( for ought i can discern ) if not those who call themselves watch-men , are in a dead sleep or lethargy , and heaving at our most faithfull ministers maintenance and callings too , in stead of enquiring after , discovering these arch-traytots , and executing the good laws against , and administring those necessary oaths of supremacy , allegiance and abjuration unto them , to prevent those treasonable practices , destructive designes , miseries , and that ruine to our protestant religion , kings , government , governors , laws , parliaments , church and common-wealth , which the wise vigilant protestant parliaments of eliz. c. . eliz. c. . eliz. c. . eliz. c. . jac. c. . jac. , , , . jac. c. . with some hundreds of printed declarations , ordinances , remonstrances of the lords and commons the last parliament ( and the good new laws , oaths they provided against those romish vipers quite buried in oblivion ) have published , to allarm all drowsie , stupid , careless people ; all lovers of god , their religion , or country against them , even at this very season , when they and their confederates are ( wittingly or ignorantly ) over-turning , over-turning , over-turning , whatever is not yet totally subverted among us , and carrying on these their designs , to their full accomplishment . if these my impotent undertakings , with a sincere affection only to gods glory , the real weal , safety , preservation of our religion , ministry , laws , native country , and all protestant churches ( now indangered by their mutual discords , wars and jesuitical emissaries to soment their intestine differences ) may so far open the eyes of all degrees in our nation really fearing god , as to know in this their day the things which belong unto their peace and settlement , and move them efectually to pursue them , before they be hid from their eyes ; i have all the reward i do expect , and shall blesse god for the good successe . if any shall be offended with me , or it , and requite me only with envy , hatred , persecution , new oppressions , bonds , close imprisonments , for well-doing and endeavouring any more publick good , for our tottering church , religion , country ; i shall commit my cause to god , which judgeth righteously , who hath so often brought forth my righteousness as the light , and my judgement as the noon day , to the shame and confusion of my causelesse enemies : and shall carry this comfortable cordial within my brest , to any prison , pillory , gibbet , grave , that the malice or power of poor vapouring mortals ( who know not how soon their violent dealing may come down upon their own pates , as well as on my other potent adversaries ) shall be able to hurry me to , and ascend triumphantly with it even to heaven it self ; that i have discharged that duty which god , conscience , providence , the publick danger of our ministry , religion , nation , and my sacred oaths , protestation , covenant , have engaged me unto . and if i perish for it , i perish ; and in perishing shall ( by gods assistance ) depart with this swan like , saint-like song of that eminent prisoner of jesus christ ( who was in prisons more frequent , in perils , afflictions , persecutions often , as i have been for the faithfull discharging of my duty ) i have fought a good fight , i have finished my course , i have kept the faith : henceforth is laid up for me a crown of righteousnesse , which god the righteous judge shall give me at that day ; and not to me only , but to all them also which suffer for his truth , and love his appearing : which is the unshaken constant faith , hope , expectation of thine , our churches , religions , ministers , countries unmercenary faithfull friend and servant , swainswick sep. . william prynne . a gospel plea , for the lawfullness and continuance of the antient setled maintenance and tithes of the ministers of the gospel , the antient , necessary , competent maintenance of our ministers of the gospel setled on them by the pietie , bountie of our religious christian kings and ancestors , (a) almost from the very first preaching and embracing of the gospel in this iland , constantly enjoyed ever since , without any publick opposition , being in these times of a long-expected glorious reformation , and real propagation of the gospel , more audaciously oppugned , more impiously decried , declaimed , petitioned publickly against , and more sacrilegiously invaded , detained , substracted , than in the very worst , profanest of former ages ; and that , not only by professed enemies of the ministers and ministery of the gospel , but by such who pretend themselves their friends , and the most precious saints ; who not yet satisfied with the late spoils , sales of all our archbishops , bishops , cathedrals , deanes , chapters lands and revenues , ( the fattest morsels of the english clergie , tending rather to support their lordly power , pride , pomp , luxurie , than their true gospel ministry ) ingrossed into sword-mens and lay-mens hands ; doe now industriously , yea violently endeavour speedily to deprive all our painfull , godly preaching ministers , of all their remaining , inconsiderable , scarce competent maintenance by tithes , glebes , oblations and other duties , ( formerly setled on them , by long prescription , by sundry successive laws , canons , and acts of parliaments , as well as late ordinances , with sufficient warrant even from gods word , gospel ) and to leave them no other subsistence , encouragement , reward for all their labours in gods harvest , but the meer arbitrarie uncoercive benevolence of the people , ( who being generally profane , covetous , vicious , sectarian , if not open enemies to all godly ministers , will not voluntarily contribute one farthing towards them , desiring rather their room , ruine , than their companie or subsistence ) and what they shall otherwise earn by their own labour , industrie in some other callings : it is high time for all sincere patrons , friends of the ministers and ministry of the gospel ( now dangerously assaulted ) publickly to appear in their behalf , and openly to vindicate , secure as well the divine as civil right of their yet remaining ancient , necessarie , established maintenance , against the clamorous cavils , petitions , and false absurd allegations of sacrilegious , covetous , impious , violent , (b) vnreasonable , (c) brutish men ; to convince them of their errour and impietie herein ; or else to shame , silence them for the future , and preserve our present ministers , ministry ( and by consequence our very religion it self , now more endangered than in any age since its first establishment . ) from impendent ruine . for which end , having not long since had some private discourses with souldiers concerning the lawfullness of our ministers tithes and setled maintenance , during my late strict causeless restraints under their armed guards , and perusing some short prison notes , notions , upon that occasion , of that subject lying by me , i thought fit to enlarge and reduce them to these ensuing propositions , ( wherein the whole controversie , now publickly agitated touching our ministers tithes and livelihood , is comprised ) to make them publick , for the common good and satisfaction of those who shall peruse them , especially sword-men , whom i finde most violent against tithes and ministers forced maintenance , trusting more ( as i apprehend ) to the length of their swords , than strength of their arguments against them ; which how weak they are , let all rational perusers hereof resolve . the propositions i shall here ( through gods assistance ) make good , from the very law , word , and gospel of god , with all possible brevitie , ( i trust beyond all contradiction ) are these , . that there is a just , competent , and comfortable maintenance , due to all lawfull , painfull preachers and ministers of the gospell from the people , even by divine right , institution , and express texts , precepts of the gospel . . that the maintenance of the ministers of the gospell ( and of places , houses for gods publick worship ) by tithes , glebes , oblations ( yea by spoils won in battel by generals , collonels , captains , souldiers ) is not only lawfull , expedient , but the most fiting , rational , convenient maintenance of all others , warranted by direct presidents , precepts , both before , under the law , and likewise by the gospel , which doth no wayes abolish , condemn , but approve , confirm this way of maintenance . . that if tithes and other maintenance , formerly setled on our ministers , be either wilfully with-held , or substracted from them by the people , in part or in whole ; the civil magistrates may , yea ought by coercive laws and penalties to enforce the payment of them in due form and time , both by the law of god , and rules of justice , without any injurie or oppression to the detainers . . that our ministers tithes are really no burthen , grievance , oppression to the people ; but a charge , debt , dutie , as well as their landlords rents , or merchants poundage . that the abolishing of them will be no real ease , gain , advantage to farmers , l●ssees , and the poorer sort of people , as is falsely pretended , but only to rich land-lords , and landed men ; and a loss , detriment to all others . . that the present opposition and endevoured abolition of tithes and all other coercive maintenance for ministers , proceeds not from any real grounds of pietie , conscience , or any consideble , real inconveniences , mischiefs arising from them , but meerly from base , covetous , carnal hearts , want of christian love , charitie to , and professed enmitie , hatred against the ministers of the gospel ; yea from a jesuitical , papistical , anabaptistical design to subvert , ruine our ministers , church , religion ; the probable , if not necessary consequence of this infernal project , if it should take effect ; which would prove the eternal shame , infamie , ruine of our nation , not its glory and benefit . chap. i. the first of these propositions being the foundation and corner-stone whereon all the rest depend , and into which it hath a prevailing influence ; i shall be more copious in its probation , and in the refutation of the objections which are , or may be raised against it . that there is * a just , competent and comfortable maintenance due to all lawfull , painfull preachers and ministers of the gospel , from the people , even by divine right , institution , and express texts , precepts of the gospel ; is as clear as the noonday sun , by these irrefragable gospel testimonies . i. by matth. . , , , , . where when our lord and saviour christ himself first sent forth , authorized , commanded his . apostles to preach the gospel , he gave them these instructions among other : provide neither gold , nor silver , nor brass in your purses , nor scrip , ( nor bread adds mark . . ) for your journey , neither two coats , nor shooes , nor yet staves : ( adding this as the reason thereof ) for the labourer is worthy of his meat ; or , his reward , hire , wages , maintenance , as the greek word will bear , and other following scriptures render it . ii. by luke . , , . recording , that when our saviour christ ( not long after his former commission to the . apostles ) sent forth the . disciples by two and two , to preach in every city and place , whither himself would come ; he gave them almost the self-same instructions : carry neither purse , nor scrip , nor shoes ; and into whatsoever house ye enter , first say , peace be to this house , &c. and in the same house remain eating and drinking such things as they give : ( subjoyning this reason for it . ) for the labourer is worthy of his hire : go not from house to house ( as beggars use to doe for alms ) and into what city you enter , and hey receive you , eat such things as are set before you , &c. iii. by john . , , , . where our lord jesus christ , ( soon after the former commissions ) used these words to his disciples ; behold , i say unto you , lift up your eyes , and look on the fields , for they are white already to harvest , and he that reapeth receiveth wages , and gathereth fruit unto eternal life , &c. i sent you to reap that whereon ye bestowed no labour , &c. which may be aptly paralleld with , and interpreted by matth. . , . then said he ( our saviour ) unto his disciples , the harvest truly is plenteous , but the laborers are few ; pray ye therefore the lord of the harvest , that he would send forth laborers into his harvest : which when he did , he agreed with them all for a certain stipend by the day , and when the evening was come , he said unto his steward , call the laborers , and give them their hire , beginning from the last unto the first , mat. . , to . as is there parabolically expressed . from which texts , words of our lord and saviour christ himself , it is most apparent , . that the apostles , preachers , ministers of the gospel are and ought to be diligent , painfull labourers in christs spiritual harvest , not idle loiterers . . that they were not obliged , but expresly prohibited to provide gold , silver , brass , scrips , shoes , clothes , bread , meat ; drink , lodging , and other necessaries at their own free cost , when they were commissioned and sent forth to preach the gospel , ( as some now would enforce them to ) for this very reason , that being labourers in the lords own harvest , for the eternall salvation of mens soules , they were worthy to receive them , as hire , or wages , from those to whom they preached . . that our saviour christ himself at the very original institution and first mission of his . apostles , and after of his disciples to preach the gospel ; thrice one after another , expresl ; y resolves in positive terms ; that they are worthy of their meat , hire , wages , for their labour in the gospel ; and so by consequence , all other lawfull labouring ministers , who diligently preach the gospel , are worthie of the like at this day ; and neither of them obliged to preach the gospell freely without any recompence , wages , reward , as some seducers now pretend . . that meat , drink , clothes , lodging , and a competent maintenance , are as truely , justly due to the true labouring ministers of the gospell from the people , and that of pure common , natural , yea gospell right , justice , not as meer arbitrary charity or benevolence , but as merited hire , wages ; as much , as well as deserved hire , wages are due to any other hired servant or labourer whatsoever , by common justice , and the law of god , gen. . . exod. . . levit. . . deut. . , . mat. . , to . joh. . . or as well as pay , wages are justly due to the best deserving officers , soldiers , luke . . ezek. . , . and that by christs own trebled resolution , recorded by the evangelists for their greater evidence and conviction ; who emphatically by way of reason applies these words only to his apostles and ministers , for the labourer is worthy of his meat , hire , wages ; they being the most divine , excellent , usefull , necessary labourers of all others , and that in matters of highest concernment in relation both to god and men : therefore of all other labourers they are most worthy of a honorable , comfortable , certain hire , salary , reward for their support and encouragement . . hence it follows by necessary consequence , ( and let those who are guilty consider it seriously in the fear of god with trembling and astonishment ) that the opposing , oppressing , defrauding the ministers of the gospel in their deserved settled hire , wages ; or the detaining all , or any part of their antient , just , established , dues , tithes , revenues from them ( especially out of covetousnesse , spite , obstinacy , or malice against their very callings ) is as great , as crying , as damnable a sin , oppression , unrighteousness ; and will bring down as grievous curses , plagues , judgements upon all those who are culpable thereof ; as the defrauding , oppressing of the hired servant or labourer , of or in his hire , or detaining their wages from them , when due ; as will undeniably appear by deut. . , . levit. , . gen. . . mal. . . jam. . , to . compared with mal. . , . , . nehem. . , . and is a sin against all these scriptures ; which all detainers of ministers dues , tithes , may do well to read and ponder . iv. the truth of this proposition is ratifyed by the apostle pauls resolution , who thus prosecutes our saviours forecited words , and seconds his argument in tim. . , . let the elders that rule well be counted worthy of double honour , especially those that labour in the word and doctrine : for the scripture saith ( deut. . ) thou shalt not muzzle the oxe that treadeth out the corn. and , the labourer is worthy of his hire : relating to mat. . . and luke . . forecited . in which words the holy ghost by the apostle positively asserts , . that the elders , ministers who rule well , especially such of them who labour in the word and gospell , are really worthy of double honour from the people , which double honour interpreters generally resolve to be , . due reverence , love , countenance ; . a competent liberal maintenance and reward : or ( as some conceive ) a double salary and allowance to what others receive , as a just honourable reward for their labour , which is here intended by the words double honour ; extending as well to an honourable salary , reward , as to due reverence and respect , as is clear by the two texts here cited to prove it , by the , and verses of this very chapter , and rom. . , , . pet. . . prov. . . compared together . . that the people ought to count them worthy of this double honour , and to render it unto them . . he proves and ratifies this , not only by his own apostolical authoritie , but likewise by two other texts of scripture , the one taken out of the old testament , deut. . . ( which proves , that the texts , precepts for the just dues , maintenance of the priests in the old testament are still in force , and not abrogated , so farr as they are moral or judicial ; and therefore may be still aptly urged for proof of our ministers due maintenance under the gospel ; ) the other out of the new , testament , mat. . . luke . . from both which the force of the apostles argument stands thus , the elders who labour in the word and gospel have as just , as natural , as moral , legal , equitable a right and meritorious due to a liberal maintenance , salarie , reward , or double honour ( as he stiles it ) as the oxe that treadeth out the corn hath , to eat of the corn , straw he treads out ; or , as any other hired labourer whatsoever hath to his hire ; they being the best , eminentest of all other labourers ; ( which the special application of deut : . . and of this very sentence here again to them , the labourer is worthy of his hire , imports : ) therefore for any people wittingly , wilfully to detain , or defraud them thereof , is as great an injustice , crueltie , sin , unrighteousness , as to muzzle the ox mouth that treadeth out the corn ; to detain the labourers wages , or defraud him thereof ; yea a sin against the express commandements of god , deut. . . ch . . , . levit. . . cor. . , , . and so much the rather , because their hire , wages , are their right , and their own ( not the meer alms , charitie of those who pay it ) as christ himself resolves , mat. . , , , , . v. by gal : . . where the apostle layes down this geral gospel percept for the maintenance of the ministers of the gospel , from which there can be no evasion : let him that is taught in the word communicate unto him that teacheth in all good things . the word communicate , signifieth a free , liberal , ( not base , niggardly ) allowance , as is evident by tim. . . heb. . . cor. . , , , . deut. . , . and that to be rendred to them , not as to meer strangers , but as to those who have a kinde of coparnership , and tenancie in common with them , not in one or two , but in all good things god hath blessed them with ; as the primitive christians had all things in common , and said not that any thing was their own , but the apostles and brethrens as much as theirs , acts . , , . whence the contents of our bibles and commentators on this text inferr and conclude ; that every christian ought chearfully to communicate a liberal share and portion of all the fruits of the earth , blessings and good things he enjoyes , to his spiritual pastor , teacher , ( and by consequence , tithes of all tithable things ) and that not as alms , charitie , or a free benevolence , but as a d just debt , dutie commanded by this sacred canon . vi. by rom. . , , . for , for this cause pay you tribute also , for they are gods ministers attending continually upon this very thing . render therefore to all their due , tribute to whom tribute is due , custom to whom custom , fear to whom fear , honour to whom honour . owe nothing to any man , but to love one another . which scripture though particularly intended of the higher civil powers , rulers and magistrates ordained by god ; yet it equally extends to all spiritual , ecclesiastical pastors and rulers over us , as well as to them . first , because they are gods ministers attending continually upon this very thing , ( to preach the gospel , and discharge their pastoral charge over their flocks ) as well as civil magistrates ; and therefore by way of excellencie are more frequently styled ministers , yea ministers of god and christ in the new testament , than magistrates , rom. . , . chr. . . cor. . . ch . . . ch . . . ephes . . . col. . , . ch . . . thess . . . tim. . . whence their very work and calling is styled , the ministry , rom : . . ephes . . . col. . . tim. . . tim. . . secondly , because the precept subjoyned is universal ; render therefore to all their due : in the affirmative : therefore to ministers as well as magistrates , with the like care and conscience . and then the inhibition in the close as universal , owe nothing to any man ; therefore not to ministers , no more than to magistrates or other men . thirdly , because it expresly enjoyns all christians to render honour to whom honour is due : now , not only honour , but double honour is due to ministers that rule well and preach the gospel diligently , tim. . , . to wit , reverence , obedience , love , * maintenance ; all here prescribed to be rendred in this text to whom they are due . therefore a liberal , honourable , comfortable maintenance and reward is both in justice and conscience due , as well to the ministers of the gospel , as to the magistrates and higher powers ; yea as duly , truly , justly to be rendred unto , ( not owed , denied , detained from ) the ministers , as to kings , parliaments , or any other civil rulers , even by this evangelical precept , ( from which there is no evasion ) and that for conscience sake ; as well as for fear of wrath and punishment : vers . . so as none can plead , pretend the least colour of conscience , for detaining , or not rendring their tithes and duties to our ministers of the gospell , without giving the holy ghost himself , and this gospel text the lie , and incurring ananias and saphiraes sin , act. . , , , , , . for which they may justly expect and receive their fatal exemplary punishment . vii . the apostle further clears this truth not only by way of precept , but reason and demonstration , rom. . , . it hath pleased them of macedonia and achaia to make a certain contribution for the poor saints which are at jerusalem ( ministers and apostles as well as other saints that were poor . ) it hath pleased them verily , and their debtors they are : for if the gentiles have been made partakers of their spiritual things , their duty is also to minister unto them in carnal things . i confesse , the text is not meant properly of apostles , and ministers of the gospell , but of poor believing saints that were jewes ; but the reason , argument here urged , extendeth much more to apostles and ministers of the gospell , than to poor believing saints : and thus i argue from it . if the christian believing gentiles in macedonia and achaia were strongly obliged , not only in charity , but of debt , duty ( as the apostle here argues , resolves ) to make a certain contribution , for the poor saints of god at jerusalem who were jews , and to minister to them in their carnal things when they were in want , upon this account , that god had made them partakers of their spiritual things ( by the apostles and other ministers sent or repairing to them from jerusalem ) then much more are they and all other converted gentiles then and now strongly obliged , not only in charity , but of just debt and duty to make a certain contribution , maintenance for , and liberally to minister in their carnal things , unto those faithfull ministers of the gospell , who actually preach the gospell , to them , and of whose spiritual things , paines they are made partakers . but the antecedent and supposition is an unquestionable gospell truth , by the apostles resolution in this alleged text , and is , may be further ratifyed by act. . , . act. . , , , , . act. . , , . cor. . , . cor. . , to . and ch . . , to . gal. . . ephes . . . joh. . . mat. . . deut. . , to . therefore the consequent must be granted , being the apostles expresse argument in the very case of ministers maintenance from the people , cor. . . if we have sown unto you spiritual things , is it a great thing if we shall reap your carnal things ? now in this reasoning of the apostle , and gods spirit in , by him , there is a double emphatical enforcement to prove ministers maintenance , both a just debt and duty , which the people are bound to render to them , not as free givers , but as debtors . . by the grounds of commutative justice , they are ( or at leastwise may be if they will themselves , the case only of obstinate separatists ) partakers of the ministers spiritual things and pains : therefore ought in justice , duty , to pay and render them some proportionable recompence for what they receive from them ; even as all other merchants , tradesmen who barter or sell one commodity for another , or for ready money , use to doe . . from the nature , value of the things they receive from ministers ; and of those things they render back to them by way of exchange , which will hold no ballance nor equal value with what they first receive : for the things the people enjoy by ministers , are spiritual , which concern their souls , spirits , everlasting salvation , eternal happiness , and are the most excellent , precious things of all other , farr excelling gold , silver , tithes , and all earthly treasures . ephes . . , , . pet. . . cor. . , , . ch . . . phil. . . rom. . . psal . . . & . , . prov. . , . but the things and recompence they return to ministers for them , are only their carnal things , for the necessary support of their bodies and families , which are no way comparable in value , worth , benefit , use to what they receive from them , as the last recited texts and others resolve . the people therefore receiving from their ministers quid pro quo , and things of infinite more value , benefit , than what they render to them ; the carnal things they receive for their spiritual , ( though in a liberal proportion ) must needs be a most just debt and duty ; not meer arbitrary almes or charity ; and can neither in justice nor conscience be detained from them , they being such infinite gainers by the bargain . viii . this proposition is yet further professedly argued , debated at full by the apostle and spirit of god against all sorts of callings and professions of men , that now oppose it , with the greatest evidence of reason , justice , equitie that may be , backed with divine authoritie ; as if he had purposely foreseen the violent , impious , headie opposition , now made against ministers tithes and maintenance in these daies by souldiers , rusticks , tradesmen ; and penned this scripture purposely to refute them . cor. . . to . have we not power to eat and to drink ? &c. who goeth a warfare any time at his own charges ? who planteth a vineyard , and eateth not of the fruit thereof ? or , who feedeth a flock , and eateth not of the milk of the flock ? say i these things as a man ? or saith not the law the same also ? for it is written in the law of moses , e thou shalt not muzzle the mouth of the oxe that treadeth out the corn . doth god take care for oxen ? or saith he it altogether for our sakes ? for our sakes , no doubt , this is written , that he that ploweth should plow in hope , and he that thresheth in hope , should be partaker of his hope . if we have sowen unto you spiritual things , is it a great thing , if we shall reap your carnal things ? if others be partakers of this power over you , are not we rather ? nevertheless , we have not used this power ; but suffer all things , l●st we should hinder the gospel of christ. doe ye not know , that they which minister about holy things , live ( or feed ) of the things of the temple ? and they which wait at the altar are partakers with the altar ? even so hath the lord ordained , that they which preach the gospel , should live of the gospel . but i have used none of these things ; neither have i written these things that it should be so done unto me , &c. in which scripture the apostle asserts the lawfulness and justness of ministers maintenance under the gospel by sundry instances , arguments , against all opponents . and because , perchance some soldiers then , as now , were the chief opposers of ministers maintenance , or rather , for that he foresaw ( by a f prophetical spirit ) that they should prove such in our daies , he first refutes , and stops theirs , others mouthes , with an argument drawn from the wars , and their own militarie practice : who goeth a warfare at any time at his own charge ? in which short interrogative argument , these particulars are both included and tacitly asserted . . that ministers of the gospel are true spiritual souldiers under christ their g captain ; and their ministrie , a true spiritual warfare , against the world , flesh , devil , sins and vices of men , exposing them to many hardships , dangers , and oft-times to losse of libertie , bloud , limbs , yea life it self , as he expresly resolves in other texts , cor. . . tim. . . tim. . , . & . . . that being souldiers , it must needs bee most unjust , unreasonable , unconscionable , yea against the common rules of war , and practice of all souldiers , that they should goe a warfare any time at their own charge ; since no other souldiers else will , or use to doe it , ( nor any officers , souldiers of the armie now ) who will follow the wars no longer , than they may do it at free cost , no not for a moment ; and will fight no longer than they receive or expect full pay . and therefore should not now , nor at any time else , press ministers to preach freely at their own cost , unless themselves first went a warfare on their own purses , to ease the impoverished oppressed country of their long continued heavie taxes . . that constant pay , wages are at all times as really and justly due to these spiritual souldiers for their spiritual warfare , as they are to any other souldiers , warriers or officers whatsoever imployed in actual service in other warres . luke . . therefore those military officers who oppugn our ministers pay and setled maintenance as unlawfull , antichristian , unevangelical , must first renounce their own pay , contributions as such , and warre without pay on their own charges for the future ; ( which many of them may well do , having gained so much by the wars already , being now most of them out of actual military service ) or else henceforth permit our ministers to enjoy their tithes and setled maintenance without opposition , or substraction , as they do their pay : it being as great a robbery , injustice , fraud to deprive them of all or any part thereof , as to defraud any souldiers , now in actual service by land or sea , of their lawfull pay , mal. . , , . . it hence necessarily follows , that as souldiers pay and other military expences , are not left to the arbitrary pleasures and free benevolence of the people , ( who would contribute little or nothing at all towards them at this or any other season , if left to their own free wills ) whence the present dissolution , destruction of the temporal army , and militia would ensue ; but are reduced to a certainty by a setled establishment , and imposed , levyed on the people by coercive laws , ordinances , forfeitures , distresses , imprisonments , strict penalties and illegal armed power , when willfully refused , detained or neglected to be paid in whole or part at the times appointed : so the wages , stipends of these spiritual souldiers the ministers , and of their necessary spiritual warfare are not to be wholly left in any setled christian state , to the arbitrary wills and voluntary benevolences of the people ( which would soon necessitate them to disband , and frustrate their soul-saving warfare ) but reduced to some certainty by positive laws , ( as they have been time out of mind with us , and elsewhere ) and in case of wilfull refusal , detention , substraction in whole or in part , when due , to be levyed by such coercive legal waies and means , as our monthly taxes , contributions , and other just debts , duties are , there being the self-same justice , reason , equity , necessity in both cases . those army-officers and souldiers then , who oppose , condemn our ministers setled maintenance , and the coercive laws , means to recover it when detained from them , as an intollerable oppressing yoke , grievance , must first renounce , suppresse all monthly taxes , contributions , excises , customes , impositions , and the many new severe coercive waies , means to levy them , as such ; being far more grievous , burthensome , illegal , oppressive to the people , both in their value , frequency , novelty , illegality , new way of imposing , levying , than ministers tithes , dues ; and the saddest , heaviest pressures they now languish under ; and live wholly upon the peoples free unconstrained benevolences , taking only what they will freely give them of their own accords , without coercive laws , ordinances , forfeitures , penalties , distresses ; or else recant their former erronious opinion , practice , & approve of our ministers setled coercive maintenance for the future , without opposition , being souldiers as well , and having as just a right to a setled enforced salary as they , as the apostle here argues and resolves . . the apostle having thus routed , silenced our captains and souldiers , the ring-leaders against ministers setled coercive maintenance , encounters in the next place , all husbandmen , sheep-masters , shepheards , ploughmen , reapers , threshers , and other rustical oppugners of their tithes and livelyhood , vers . , , . wherein he asserts , that ministers of the gospel have as just , as equitable a right to a competent maintenance from the people for preaching the gospel to them , and to partake of their temporal things ; as he that planteth a vineyard hath to eat of the fruit thereof ; as he that keepeth a flock hath to eat of the milk thereof ; as the husbandman and labourer who ploweth , reapeth or thresheth corn , hath to eat of the corn he soweth , reapeth , ploweth : and that it is as great injustice and unreasonable a wrong to deprive ministers who sow unto us spiritual things , of a competent share in our carnal things , as to debar one that plants a vienyard , of right , liberty to eat of the fruits thereon ; or one that feeds a flock , to eat of the milk thereof ; or those that sow , reap , and thresh corn , to enjoy any share or portion in it : which all husbandmen , farmers , sheepmasters , shepherds , plowmen , reapers , threshers , and other labourers , who deny or begrudge our ministers their setled long-enjoyed tithes , dues , may do well advisedly to consider , to convince them of their error , and reform their practice . . vers . , . to convict all brutish men in these daies , who are more uncharitable to their ministers , than men are or ought to be unto their very beasts , in denying them so much as to eat of their tithe corn or straw ; he argues the justice of their maintenance ( and that by the tithes of their corn , wine , &c. as the instances imply ) from the very law of god concerning beasts , deut. . . thou shalt not muzzle the mouth of the oxe that treadeth out the corn : which though literally meant of oxen , to whom all righteous men are and ought to be just and mercifull , prov. . . luke . . & . . mat. . . yet it is principally written and intended altogether in its genuine sense of the priests of god under the law , and ministers under the gospel , of whom god takes farr more care than he doth of oxen ( of whom yet he hath a general providential care , as well as of all other beasts and sparrowes : psal . . , . & . , , . & . . luke . , , . mat. . . & . , . ) and are of more value than many oxen , sparrowes , and yet not one of these sparrowes falleth to the ground without gods special providence , though two of them be sold for a farthing . the force of this argument stands thus ; if god by a special law takes so much care of the very oxe that treadeth out the corn , as to prohibit the muzzling of his mouth , that he may not eat thereof ; then questionlesse he takes much more care of the ministers of the gospel , and much more inhibits the muzzling their mouthes , that they shall not so much as eat , feed and live upon the tithes , milk , wine , fruits of your vineyards , straw , corn , and other carnal things ; they being farr better than oxen ; and this law purposely , yea altogether written for their sakes , not for oxen. therefore those who deny , deprive them of this their right , transgresse this very law of god , ( still in force under the gospel , as is here resolved , being founded upon natural justice and equity ) and are farr more unrighteous , cruel , unmercifull to their ministers , than they are , yea ought of right to be to their very beasts and oxen , to whom they allow both corn , straw , and sufficient * provender , for their very work . verily our ministers now were better to be many mens oxen , horses , asses , than their spiritual pastours , for then they would feed , keep them well , and allow them straw , hay , corn to live on , as they do to their beasts ; whereas now they will pay them neither tithe-corn , nor hay , nor straw . such men , i fear , are worse and more brutish than their (h) beasts that perish , regarding neither law nor gospel , here joyntly urged by the apostle against their tithe-detaining practice . . vers . . he encounters all artificers , merchants , tradesmen , and others who live by selling , buying , exchanging ; who deny or detain their ministers dues and maintenance , by an argument drawn from their own practice , the rules of commutative justice , the nature and value of what they receive from ministers , and what they render , or should return them for it . if we have sowen unto you spiritual things ( the most precious , excellent , usefull , necessary of all others ) is it a great matter if we shall reap your carnal things ? of far lesse value , worth , use , than what you receive from us for them . surely none of these traders , will give or sell away their wares without any money or recompence for them ; and if they sell or exchange them for lesse money , or things of lesser value , moment than what they sell or exchange them for , they may in all justice , equity expect and receive mony or wares exchanged for them from those who have so gainfull a bargain , without the least shadow of covetousnesse , injury , or oppression . let then such and all others consider their own daily practice , and the weight of this apostolical gospel argument for our ministers maintenance , tithes , dues , against which there can be no exception , nor reply ; and then it will convince , convert them , if they have not abjured all principles of common justice and commerce . . vers . . he argues from others precedents and examples . if others are partakers of this power over you ( to reap your carnal things for spiritual ) are not we rather ? which may receive these various constructions agreeable to the general scope of the place . . if others who are true apostles and ministers of the gospel , are partakers of this power , ( amongst you or those to whom they preach ) though they have not been such to you , and did not convert you , nor labour so much in sowing spiritual things to you ; much more then i ( and barnabas ) who have been the instruments of your conversion , and doubtless are apostles unto you , you being the seal of mine ( and his ) apostleship in the lord , vers . , . cor. . , . may likewise be partakers of this power . . if others , who are not true apostles of jesus christ , but meer false apostles , seducers , slanderers of me and the truth of the gospel , yea broachers of heresies and schisms , are partakers of such a power amongst you ; then much more i and barnabas , who are true apostles and ministers of the gospel , preaching nothing but soul-saving gospel truthes : which seems to be the genuine sense of the place , by comparing vers . , , . with cor. . , to . . if your (i) idolatrous pagan priests before or since your conversion , be partakers of such a power ( as to receive a competent salary , maintenance out of your carnal things ) even for their idolatrous superstitious rites and ministry ; or if your pagan civil magistrates receive a competent allowance from you for their care , pains in civil government , rom. . , ▪ then much rather we who are true ministers and apostles may doe the like for the true spiritual things we sow among you , and have the spiritual rule over your souls , hebr. . . the argument holds strongly in each of these constructions , but specially in the two first , which are most suitable to the text . vers . . he argues the justice of ministers maintenance under the gospel , from the maintenance of the priests by gods appointment under the law , both before and after the temple built . do ye not know that they which minister about holy things live of the things of the temple , and they which wait at the altar , are partakers with the altar ? numb . . , , to . deut. . , , , , . ch . . . to the end of the chapter , ch . . , . chron. . , to . nehem. . , to the end . ch . . , . & . , to . ( the priests and levites by gods own institution then receiving a liberal maintenance from the people , by first fruits , tithes , oblations , sacrifices , and likewise cities , suburbs , lands , houses , chambers for them , their families , flocks of cattell and goods , numb . . , to . josh . . , to . chron. . , throughout . chron. . , . neh. . , , . & . . ezek. . , , , , . ch . . , to . lev. . , , . compared with the former texts : and lev. . throughout . numb . . , , , , , , , , , . heb. . . . none of which might be alienated , sold or substracted from them without sin and sacrilege . mal. . . ezek : . . lev : . , . gen : . , . ) and then to stop , silence all future objections and calumnies , he thus concludes his argument with a divine ordinance and institution of christ himself under the gospel for the like liberal maintenance of the ministers of the gospel , ( whose ministration is much more glorious than that of the law , cor. . , , , . ) vers : . even so hath the lord ordained that they which preach the gospel should live of the gospel ; to wit , as liberally , as plentifully , as comfortably in all respects , ( & that by tithes and oblations ) as the priests and levites under the law , as the parallel , and the words even so , import . who ever therefore oppose , resist , censure this their liberal setled maintenance , oppose , resist , censure the very positive ordinance of christ himself under the gospel ; and therefore may and shall receive to themselves damnation , rom. . . in case they do not repent thereof . finally , the apostle to prevent all cavils that either false apostles or enemies to him and his ministry , might then object against him for this doctrine , as if he were a self-seeker , a covetous wretch , an oppressor , fleecer , spoiler of his flock , or a partial judge in his own cause ( as they now calumniate our ministers pleading for their just setled maintenance and tithes ) because he thus strongly pleads , proves the lawfulness of the maintenance of the ministers of the gospel ; he concludes , v. , , , . nevertheless we have not used this power : but i have used none of these things ; neither have i written these things , that it should be so done unto me , &c. which he repeats and amplifies in cor. . , , , . & , , , , . but he did it only in the behalf of the rest of the ministers of the gospel , to justifie their gospel right to a liberal , just and fitting livelihood for preaching of the gospel . wherefore his testimonie , resolution in this case is beyond all exception , sufficient to convince , silence all gainsayers then and now . ix . the veritie of this proposition is thus demonstrated from tim. . . titus . . joh : . . which prescribe this as one special qualification of every evangelical bishop and minister of the gospel , that he must be given to , and a lover of hospitalitie , a receiver of the brethren , and reliever of distressed saints upon all occasions : and yet withall commands , requires , that he must give himself wholly to reading , fasting , prayer , meditation , exhortation , doctrine , preaching the word in season , out of season , giving attendance on these and other pastoral duties , not intangling himself with the affairs of this life , being separated to the gospel of christ , act. . . tim. . , , , . tim. . , . & . , . rom. . . tit. . . & . . cor. . . acts . . now this they cannot possibly do , without a liberal , comfortable , constant , setled maintenance , unless they have good estates of their own , which few of them have , who yet deserve a convenient reward for the work of their ministry from the people : therfore such a maintenance of right belongeth to them as ministers of the gospel , to enable them to be hospitable , charitable to their christian brethren , and the poor who need relief . x. ministers of the gospel , are to speak , exhort , and rebuke with all authority , and to let no man despise them , tit. . . tim. . , . mat. . . now this they can hardly do , if they be poor , beggerly , living upon meer almes , or benevolences of the giddy-headed people , and stript of a competent setled maintenance independent of the vulgars or superiors meer wils and pleasures , which will render both their persons , words , doctrine , ministry contemptible , and less authoritative to the people : for the scripture informs us , that poor men are lightly esteemed , sam. . . and therefore david couples these together , ps . . . i am poor ( or small in estate ) and despised . and solomon informs us , that the poor useth intreaties ( speaks not with authority like the richer sort ) but the rich answereth roughly , prov. . . that the poor is hated even of his own neighbour , separated from him , despised by him , and that all the brethren of the poor do hate him , how much more do his friends go far from him ? though he pursue them with words , yet are they wanting to him . prov. . . & . , . yea he resolves ecclesi . . , . that a poor mans wisdome is despised , and his words are not heard ; and that no man remembred or regarded that poor wise man , who by his wisdome delivered the small city that was besieged by a great king , because he was poor . neither is this old testament , but gospel truth likewise . jam . , , , . if there come into your assembly a man with a gold ring , in goodly apparel , and there come in also a poor man in vile rayment ; ye have respect to him that weareth the gay clothing , and say to him , sit thou here in a good place ; and say to the poor , stand thou there , or sit here under my footstool . hearken my beloved brethren , hath not god chosen the poor of this world rich in faith , and heires of the kingdom , which he hath promised to them that love him ? but ye have despised the poor : a fault still common in the world . poor indigent ministers , as well as saints , though rich in faith , are alwayes generally contemptible to the greatest part of men , and their very poverty makes not only their persons , but also their words , doctrine to be slighted , despised , as these scriptures and experience manifest . wherefore a competent , setled maintenance and revenue , is not only just , but necessary , to add more reverence , esteem , authority to their exhortations , rebukes , words , and preserve their persons , callings , doctrine from contempt , scorn in the eyes and ears of men : who though they ought to know them which labour among them , and are over them in the lord , and admonish them , and to esteem them very highly in love for their workes sake , thess . . , . yet by reason of their inbred pride and corruption , will be very averse to do it , if they be very poor , indigent , living like beggers upon almes and charity , as our new reformadoes would now have them . xi . ministers of the gospel must not seek to please men , but god ; for if they yet pleased men , they should not be the servants of christ . gal. . . neither must they corrupt the word ( as many do ; to humour the lusts , wils , or countenance , and carry on the unrighteous , covetous , ambitious , oppressive , bloudy , or treacherous designes of wicked men ) fasting ( yea preaching , praying ) for strife and debate , and to smite with the fist of wickedness● , esa . . . but as of sincerity , but as of god in the sight of god , must they speak in christ , . cor. . . now a just , competent , setled maintenance , independent on the governours , magistrates or peoples wils and pleasures , ( such as was the priests & levits under the law enjoyed by divine institution ) is the best means and preservative , to keep ministers from being men-pleasers , flatterers , time-servers , and corrupters of the word of god , to humour men ; a great inducement to them to preach the word of god sincerely , and to rebuke , exhort with all authority . whereas a poor , beggerly , mean , dependent ministry , whose whole maintenance and subsistence must only rest upon the arbitrary wils of persons in highest present power ( who may out , or strip them both of their callings and benefices , when and for what they please ) or only upon the peoples voluntary contributions , will certainly be a men-pleasing , time-serving , flattering , unsincere , and word-corrupting ministry , studying more to please , favour those by and from whom they have their livelihood , than to please god ; and fitting their preaching , praying , doctrines , opinions , to their opinions , tempers , factions , parties , designe , holding alwayes with the prevailing strongest party , or those by whom they subsist , and wresting the scriptures to support their very errors , vices , sins , power , yea most unrighteous , treacherous , perfidious , oppressing practices and bloudy usurpations , not daring to displease them , as * ecclesiastical histories record , and our own experience can sufficiently testifie in these late whirling times and changes , as well as in king ‖ edward the . queen maries and queen elizabeths reigns , when our religion suffered so many publick alterations , and most ministers , scholars , and our whole universities then changed their opinions , professions and religion with the times . hence the scripture records this , as one of jeroboams policies to keep the people and kingdome from returning to the right heir , kings . , , , &c. ch . . , . that he made priests of the lowest ( or poorest ) of the people , who were not of the sonnes of levi , and placed them in bethel : who being poor , mean and depending on him for their salaries , readily sacrificed to his golden calves , offered upon the altar which he had made in bethel , and observed his new prescribed feasts : which the priests and levites that were in all israel , having lands , suburbs , and a setled maintenance , refused to do . whereupon jeroboam and his sonnes cast them out from executing the priests office unto the lord , and substituted these base stipendiary idol-priests for the calves , chron. . , , . which became sinne unto the house of jeroboam , even to cut it off , and to destroy it from the face of the earth . god deliver us of this nation from the like atheistical jeroboam-like policy and practice now , which will certainly prove the ruin of them and their house , who shall put it in execution , if not of our religion and nation , as it did of jeroboam his house , and the k whole kingdom of israel . xii . all christians are commanded , gal. . . as they have opportunity , to do good to all men ( by relieving their wants ) especially to the houshold of faith . therefore they are in an especial manner bound to do good to their ministers who instruct them , in maintaining and communicating to them in all good things , as he resolves , v : . the rather , because we have this precept thus seconded , heb : . but to do good and communicate forget not ; for with such sacrifice god is well pleased : ( coupled with this injunction ) obey them that have the rule over you , and submit your selves , for they watch for your souls , as they that must give account , that they may do it with joy , and not with grief , for that is unprofitable for you . wherein these conclusions are positively asserted . . that christians must not only obey their ministers , but likewise do good , and communicate to them in all good things they want . . that this is so farr from being unlawfull , that it is a sacrifice well pleasing unto god. . that ministers deserve not only obedience but mainnance from the people . . because they have the rule over them . . l because they watch for their souls . . because they must give an account to god for them . . because it will be a great encouragement to them to discharge their dutie with joy , not with grief . . because the not doing it , will both grieve the ministers , and be unprofitable to the people in regard of their souls and spiritual estate , and also cause god to curse and blast them in their temporal estates , mal : . , , , , . where . as the doing thereof will be advantagious to them in both-powerfull reasons , motives to convince all of the justice of our ministers maintenance , and to induce them chearfully to render it unto them , though it were not due by humane laws , as we know it is . xiii . the very gospel enjoyns all christians , rom. . , . to distribute to the necessitie of the saints , and to be hospitable ( not only to those we know , but ) even to strangers . heb : . . and if our enemie hunger , it commands us to feed him ; if he thirst , to give him drink ; and not to be overcome with evil , but to overcome evil with good ; seconded with mat : . , , , , . luke . , to . prov. . . whence thus i argue : if christians must distribute to the necessities of , and be hospitable to saints and others , who are meer strangers to them , yea give meat , drink to their very enemies , and overcome their evil with goodness ; then it necessarily followes , they must much more distribute to the necessities of , be hospitable , liberal , give meat , drink , maintenance to their own faithfull preaching ministers , and recompence their good with good again , else they shall be worse than publicans and sinners , who doe good to those that do good to and for them , mat. . , . xiv . this is evident by the practice of the primitive saints and christians recorded in the gospel for our imitation ; who though they paid all civil tributes , customs , duties to the civil magistrates , and likewise tithes and other duties to the jewish or pagan priests under whom they lived ; yet they likewise freely and liberally ministred , contributed of their substance and temporal estates towards the maintenance of christ and his apostles , and the ministers of the gospel . hence we read , luke . , . that mary magdalen , joanna the wife of cuza , herods steward , susanna and man , others ( of our saviours auditors ) ministred to him of their substance : put , it seems , into a common purse for the maintenance of christ and his apostles , which judas kept ; who provided bread , meat and other necessaries out of it ; as is evident by john . , . & . , . & . . & . , . compared together . after our saviours resurrection , when the multitude of believers at jerusalem were much increased , it is expresly recorded , acts . , to the end , & . , to . that they were all of one heart and of one soul ( and oh that we were so again ! ) neither said any of them , that ought that he possessed was his own , but they had all things common ; neither was there any amongst them ( whether apostle , minister or believer ) that lacked ; for as many as were possessors of lands or houses sold them ( not purchased them , much less glebes , tithes , or church-lands , as many do now , who say they imitate the primitive christians ) and brought the prices of the things that were sold , and laid them down at the apostles feet ; and distribution was made unto every man ( therefore to every apostle and minister of the gospel , as well as others ) accordding as they had need . amongst others , joses a levite of cyprus , having land sold it , and brought the money and laid it at the apostles feet : the like did ananias with saphira his wife , but because they brought a certain part thereof , and laid it at the apostles feet , and kept back part of the price of the land , ( which is less than to keep back tithes , when due by sundrie lawes and ordinances , ) and thereby lyed not unto men ( only ) but to god , they both fell down dead sodainly at the apostles feet ( in a miraculous manner ) and were carried forth and buried : and great fear came upon all the church , and as many as heard thereof . we finde in cor. . , , . that though paul preached the gospel at corinth freely , yet he took wages of other churches ( at the same time ) to do them service . and when he was present with them , and wanted , that which was wanting unto him , the brethren that came from macedonia supplied ; that in all things he might keep himself from being burdensome to the corinthians ; ( for reasons expressed by him ) in which respect , of not ministring to him of their substance , he writes , they were inferiour to other churches , cor. , . how bountifull the church and saints of philippi were to paul , not only whiles present with them and preaching among them , but also absent from them , preaching the gospell in other places , and how pleasing this their liberalitie was to god , he thus records ; phil : . , to . but i rejoyced in the lord greatly , that at last your care of me is revived ; wherein ye were also carefull , but ye lacked opportunity : not that i speak in respect of want , for i have learned in whatsoever estate i am , therewith to be content , &c. notwithstanding ye have well done that ye did communicate with my affliction . now ye philippians know also , that in the beginning of the gospel , when i departed from macedonia , no churches communicated with me as concerning giving and receiving , but ye only : for even in thessalonica ye sent once and again to my necessity . not because i desire a gift , but i desire fruit that may abound to your accompt . but i have received all , and abound and am full , having received of epaphroditus the things sent from you ; an odour of a sweet smell , a sacrifice acceptable , well-pleasing to god. but my god shall supply all your needs , according to his riches in glory by jesus christ ; now unto god and our father , be glory for ever and ever amen . and in . tim. . , , . he makes this memorable testimony of and prayer for onesiphorus : the lord give mercy unto the house of onesiphorus , for he often refreshed me , and was not ashamed of my chain : but when he was in rome , he sought me out very diligently and found me : the lord grant unto him , that he may find mercy of the lord in that day : and in how many things he ministred unto me at ephesus thou knowest very well . from all which precedents coupled together , these conclusions naturally , and necessarily arise : . that it is not only the practice , but duty of the saints and christians under the gospel , chearfully and liberally to contribute to the apostles and ministers of the gospel ; and that not only whiles they are actually preaching and resident amongst them , but whiles absent preaching , the gospel in other places , or suffering for the gospel in bonds and prisons , if their necessities so require . . that they ought not only barely to supply their necessities , when they are in want ; but in such a plentiful manner , that they may truly say , we abound and are full , blesse god for , rejoyce in their peoples liberality , and pray to god for a blessing upon them and theirs , with greater chearfulness and zeal . . that in cases of necessity , when the wants of the apostles , ministers and saints of god require it , christians are not only bound to pay them the tithes of their lands and other setled dues , but even to sell their very lands , houses , estates themselves and lay them down at the apostles and ministers feet for their common supply ; as the primitive christians did ; they being not real proprietors , but meer stewards of their worldly estates ; which as they all proceed from gods hand , gift , blessing ; so they are still , gods own , not mans ; and therefore in such cases , to be chearfully expended for the maintenance and supply of the necessities of his ministers , servants , worship : chron. . , , , , , . tim. . , , . . that the maintenance of the ministers of the gospel , is not meer pure almes , ( as some have held ) but wages ; which though paul ( for some special reasons ) received not from the corinthians , yet he did from other churches , under the name of wages . . that niggardlinesse , and not contributing towards the maintenance of painful ministers , is a shame , infamy , dishonour to a church and people , making them inferiour to all other churches . . that peoples liberal , bountifull contributing to the apostles and ministers of the gospel , is a great joy , comfort , encouragement to them , yea a means to enlarge their hearts in prayers to god for spiritual and temporal blessings on them and their housholds . . that bountifull and chearfull contributions to the apostles and ministers of christ , is not only a well doing , or good work , but an odour of a sweet smell , a sacrifice acceptable and well pleasing unto god , though it stinks in the nostrils of many covetous earth-wormes , sectaries and pretended godly saints now adaies . . that liberality to the ministers of the gospel , and paying them their just deserved tithes , dues , is so farr from impoverishing and hurting mens estates , that it redounds to their spiritual and temporal accompt too ; causeth god to supply all their wants , and to blesse both them and their families with spiritual , temporal , eternal mercies and rewards ; as the several forecited scriptures , with prov. . , . mal. . , . mat. . , . mar. . . cor. . , to . kings . , to . kings . , to . most abundantly prove . . that the willful detaining , withdrawing of any thing solemnly devoted to the necessary maintenance of the apostles and ministers of the gospel , brings exemplary curses , judgements on those who are guilty thereof , as the examples of ananias and saphira testifie , compared with mal. . , , . hag. . , , , & . , , , . further illustrating it : which all sacrilegious invaders , plunderers , detainers , oppugners of our ministers ancient established maintenance , tithes , dues , may do well now seriously to ruminate upon , and then reform their practice , or else renounce their pretended christianity and saintship , so much swarving from the recited precedents of the first and purest christians . xv. this is further proved by mat. . . luke . . all things whatsoever ye would that men should do unto you , do even so to them , for this is the law and the prophets ; yea and the gospel too ; thus twice enjoyning it , from christs own mouth . whence thus i argue . all estates , callings , professions of men whatsoever ; whether kings , princes , rulers , judges , magistrates of all sorts , lawyers , physicians , chirurgeons , merchants , artificers , traders , husbandmen , labourers of all kinds , sea-men ; yea all generals , commanders , collonels , captains , governours of forts , and common souldiers whatsoever , with all sorts of civil officers in their respective offices , imployments , do and justly may by the law of god , nature , nations , expect and receive a just , certain comfortable salary , reward , hire , maintenance , subsistence for their respective pains , workes , imployments , exercises of their callings , talents from those that do imploy them , or for whose good they worke and serve . therefore by the self-same lawes , rules of common , natural , moral justice and equity , all ministers and preachers of the gospel may justly expect and receive the like , from those to whom they preach ; else all others whatsoever must exercise their respective offices , callings , trades , imployments , studies , labours freely , without expecting or receiving any stipend , wages , reward or maintenance , as well as ministers ; which they will never do . and great reason is there that the painfull , faithfull ministers of the gospel should receive a liberal , comfortable , competent , setled maintenance and reward for their ministrie , as well as any other callings , or professions of men , or as any officers or soldiers in the armie , between whom alone and ministers i shall here only make the parallel , because they most violently oppugne our ministers maintenance ( if not their ministrie too ) of all others i have yet conferred with . first , all able , learned , judicious , pious ministers , skilfull in the original tongues , and learned languages , wherein the scriptures were penned ( very necessarie for them to understand ) able soundly , judiciously , like work-men who need not be ashamed , to defend the truth of the gospel , to stop the mouthes of blasphemers , hereticks , seducers , that oppugne it ; to divide and preach the , word of god aright as they ought . ( else they hardly merit the name of able ministers , cor. . . tim. . , . tim. . . & . , , , . tit. . , , . but rather of pratlers , wranglers , understanding neither what they say , nor whereof they affirm , wresting the scriptures to their own and others destruction through ignorance and want of learning , pet. . . the case of many unlearned usurpers of the office of teachers now ) all such before they can be fit for the work of the ministrie , spend sixteen or twentie years time , in hard studies day and night at their books in schools , universities , double the yeares , studie , industrie , that most other artists ( except lawyers and physicians ) spend in fitting themselves for , and in learning their mechanick trades and professions : whereas all common souldiers , yea many officers and commanders of late times , rush just like their horses , into their work , calling , without one years , weeks , dayes preparation , studie , practice in the wars , learning their trade of souldiers and commanders , after they are listed , as such , by practice and experience only without studie . . most ministers , or their parents , friends are at very great expences for many years time in sitting them for the ministry , both in schools and in our universities , before they enter into , or are able for it : whereas all our souldiers & army-officers were at no expence at all , receiving full pay , as such , from the first day of their listing , yea many of them advance money to boot , before any practice at all or study , judgement in their art ; learning their military skill , not at their own , but only at the peoples great costs . . learned ministers both before and after their admission into the ministry , are at great charges , expences , to furnish themselves with bookes , libraries , necessary for their calling : whereas our army-officers , soldiers are and were furnished with all sorts of armes , ammunition fitting for their calling out of the publick treasury only , which continually recruits them when lost in service . . the calling of the ministry requires men of far more able parts and eminency of gifts ( whereby they might gain far more worldly wealth , riches , honours in many other callings , than they do or can do by the ministry , by which they are commonly losers in respect of worldly gains and preferments , a thing very considerable ) than the calling of an ordinary souldier , or most warlike officers doe ; as experience manifests , and i think most souldiers , officers will acknowledge ; and thereupon must admit them proportionable allowance to their parts , work in the ministry it self , and what they might probably gain in other functions . . ministers when once entred into their callings , are alwaies day and night upon constant duty , without intermission ; their whole lives being so taken up with study , preaching , catechizing , praying , fasting , exhorting , admonishing , reproving , comforting , visiting the sick in body , troubled in mind , resolving doubts of conscience , and other ministerial duties as well * in private from house to house as publickly in the church , that they have most of them scarce one spare day or hour all the year to imploy in other affaires , for their own advantage in worldly things . whereas many of our army-officers and souldiers lie idle in their quarters many months ( if not years of late together ) without any actual service , yet receive their full constant pay ; and those in actual service , garisons , do that they call duty only by turns , once or twice a week ; and that but or two or three hours in a day , being then successively relieved by others ; having sufficient time every day and week , not only to follow their private trades , if they please , which are necessarie , usefull , beneficial to them , but also to exercise merchandise and other gainfull worldly imployments , offices , to which they were never trained up ; whereby most of them are grown richer than most of our ministers in half the space they were fitting themselves for their ministry before they received one penny profit by it . as for our officers , they seldom doe any dutie ; have all their men-servants listed under them , and paid by the people to do them service only , being exempt from duty ; and how seldom they have been of late times at their quarters upon their dutie as souldiers , but sitting other-where in counsel to advance their own power , estates , and pull down all above them , to intrude themselves into their places , we all see by many late sad experiences , contrary to the apostles precept , tim : . . no man that warreth intangleth himself with the affairs of this life , that he may please ( not supplant , pull down ) him who hath chosen him to be a souldier : and to john the baptists injunction to souldiers , luke . . do violence to no man , neither accuse any falsely , and be content with your wages . which ungospel practices i wish they would first reform , by conforming themselves unto this precept , before they reform our ministers , their tithes , or setled wages , or our laws , things beyond , if not against their calling ; for which they were never raised nor imployed . . the calling of ministers , as it is every way farr more laborious , yea as perillous and full of hardship as that of souldiers , cor : . , to . & . , , , . tim. , , , , . & . , , . & . , , . so questionless it is far more honourable , necessarie , usefull , beneficial to others , than that of souldiers and commanders ; for they are the very embassadors of god himself , and jesus christ ( the m king and lord of glory , the king of kings , and lord of lords , the prince of the kings of the earth , and only potentate , to whom all other powers and knees must bow ) beseeching men in christs stead to be reconciled to god , cor. : . the ministers , servants , messengers of jesus christ , workers together with him , stewards of the mysteries of god and the glory of christ , cor : . , . cor : . . & . . tim : . . imployed to preach to sinfull men , the unsearchable riches of christ , to turn them from darkness unto light , and from the power of satan unto god , eph : . . acts . . to rescue their souls from the slavery and power of sin , satan , hell , death , everlasting damnation ; and make them the sons of god , heirs and coheirs with christ of everlasting glory and felicity in gods heavenly kingdom , through the power of gods grace and spirit working in , with , by and through their ministry on their hearts . now the calling of a souldier though it be honourable , and in a some cases lawfull and necessary , if rightly managed ; yet it is for the most part sinfull , hurtfull , pernicious , dangerous , unbeseeming the gospel , in respect of the cause , managing , abuses thereof ; o it being accompanied with murther , violence , rapine , treachery , perjury , sacrilege , cruelty , inhumanity , profaneness , blasphemy , contempt of god , of all sacred , civil laws and ordinances ; ambition , treason , and the worst of sins ; tending usually ( like an overflowing deluge ) to the subversion , desolation , ruine of whole families , cities , countries , kingdoms , churches ; yea , mankinde it self , religion , lawes , liberties , properties ; turning whole famous cities into ashes , and kingdoms into golgothaes , acheldamaes , ( fields of bloud and dead mens sculs ) yea very wildernesses , as the p scripture , histories and experience manifest . hence god styles great warriers and armies ; the rod of his anger , the battel-axe with which he breaketh in pieces the nations , destroyeth kingdoms , and treadeth them down like the mire in the streets ; and then at last destroyes them in his wrath , when they have executed his judgements , for their rapines , violence and bloudy cruelty , isa . . , &c. jer. . , to . c. . , &c. they being really carried on from one war to another , out of vainglory , ambition , covetousness , a mad humour of false greatness ; & nullus supra caeteros eminendi modus ; in sua fata pariter , ac publica ; to their own and the publick ruine ; yet still under a pretext of publick good and safety ; as seneca excellently writes in his epistle ( a piece worth the reading ) of alexander the great , caesar , pompey , marius , qui cum omnia concuterent , concutiebantur ; & cum multis fuerunt authores mali , pestiferam illam vim , qua plerosque nocuerunt , ipsi quoque sentiunt . indeed the profession of a souldier even in the best of men and warres , is so full of danger , pollution , that it leaves some scarrs of sin , and tincture of pollution on them , however they demean themselves . whence we read , that though david were q a man after gods own heart , and r fought the battels of the lord against his professed enemies by his special command , with constant success ; yet god would by no means permit him to build an house and temple to him , for this very reason , because he had been a man of warr , and made great battels , and shed much blood upon the earth in his sight ; and the . israelites , who by gods special command went up to war against the midianites , and slew them , returning with victory and great spoils , without the loss of one man , though treble their number , when as they came back from the war , were all of them , whosoever had killed any person , or touched any slain , enjoyned by god and moses , to remain without the camp seven dayes , and to purifie themselves on the third and seventh day , as unclean and polluted persons , numb . . , , , . and all the officers , and captains of hundreds and thousands in the host brought an oblation , what every man had gotten of jewels , of gold , chaines , bracelets , rings , ear-rings and tablets , to make an oblation for their souls before the lord , v. , , . such a stain and guilt was there adhering to their war-like calling , in this best of warrs against gods professed idolatrous enemies . and may not all officers , souldiers whatsoever then justly fear , finde a deeper guilt of sin and stain of blood , than was in david , or those officers and souldiers adhering to their persons , profession in our unnatural , uncivil wars , even with , and against their very christian , nearest , dearest kings , brethren , friends , kindred , neighbours of the self-same reformed protestant religion , and thereupon make the like or a far richer oblation than they did , out of their spoils and gains by warr , as an attonement for their souls , in stead of provoking god and encreasing their guilt , by seeking to spoil his faithfull ministers of their long enjoyed maintenance ? in all these . particulars wherein the calling of ministers excells in merit that of common souldiers , captains and officers of war ; both in respect of time , studie , costs , labour , diligence , parts , danger , honour , excellencie , use , profit , and necessitie ; ( to which i might add , that the ministers frequent tears , prayers in times of war , and judgements , are far ſ more prevalent , beneficial , victorious than the souldiers arms ; besides their constant use and benefit in daies of peace , when souldiers are needless , useless : ) i referr it to the unprejudiced judgements , consciences of all rational christian men and souldiers themselves ; whether our faithfull preaching ministers be not worthie of as large , as liberal , as constant , setled , honourable , coercive a maintenance from the people , as any souldiers , officers , captains , collonels , majors or major generals whatsoever , if not a better , larger salarie and reward than they enjoy , for the premised reasons ; when as yet some ordinarie soldiers , troopers receive as much or more pay by the year , as many of our godly ministers ; and every ancient , serjeant , lieutenant , as much as the most and best beneficed ministers ; and most captains , collonels , majors , five or six times more than our ablest , best deserving ministers ; and some general army-officers have received , gained more monie , lands , wealth , in few moneths or years space at least , than hundreds of our most meritorious ministers put together can gain in all their lives by their ministry . how then can they tax them as covetous , oppressive , yea as caterpillars of the people by their tithes and duties , for receiving only , , , , , , or l. a year ( and very few of them more , or so much ) from the people , by an antient right paid once a year , when as they receive ten times more from the impoverished people , and at least the tenth part or more of all our poor ministers livings by monthly enforced contributions , and yet will neither give them the tenthes of their pay and spoyles of warr ( as abraham and others did , gen : . . heb : . , . chr. . , , . ) nor ( many of them ) pay their own personal or predial tithes , and endevour to hinder others , though willing , from paying them any tithes or dues , to which they have a juster right than they have to their souldiers pay and enforced contributions , against all (t) antient lawes and statutes as now imposed , levied , especially on the clergie , who were never taxed , charged either by (u) lords or commons in former ages , but only by themselves , by their own free grants in parliament and convocation by special acts , as our records and printed statutes manifest ? or with what face , reason , conscience they can seek to deprive them of all their tithes , glebes , and other legal setled coercive stipends , amounting to so small a value , as now they do ; when as themselves receive far more setled constant pay , levied with the greatest rigour and extremitie on the exhausted people every month or quarter ; and some of them have many militarie , besides civil gainfull offices , imployments , and that in several kingdomes , amounting to thousands , and tenne thousands by the year , when sew ministers now enjoy one or two hundred pounds a year de claro , and most not sixtie , all taxes deducted ; and must hardly be suffered to hold two adjoyning petty benefices , to make up . or . l. a year , without much clamour , censure and danger of deprivation : when as they can hold so many gainful , incompetible pluralities in these necessitous times ; and when as popish , pagan , mahometan and aegyptian priests enjoy far more than our best deserving clergy at this day , without their officers , souldiers clamours or opposition ? having thus made good the proposition by these scriptures and reasons , to which i could never yet hear the least colourable answer given ; i now proceed to answer such objections , as have been , or may be made against it . the first objection is from mat. . . where when christ sent out his apostles to preach , he saith unto them , heal the sicke , cleanse the lepers , raise the dead , cast out devils ; freely ye have received , freely give . whence some inferre , that ministers and apostles of christ , are here enjoyned by him , to preach the gospel freely , without receiving any wages , reward or recompence for it , because they freely received their power and commission to preach the gospel , without giving money or price for it . to which i answer . . that this clause of freely ye have received , freely give , relates not to their preaching of the gospel , but is annexed only to the precedent words ; heal the sick , cleanse the lepers , raise the dead , cast out devils ; which they are commanded to do freely without any wages , hire or reward ; having freely received this miraculous power of healing the sick , &c. from christ , who did it freely ; and that to gain credit to the truth of the gospel , which was confirmed , credited , propagated by these free miraculous workes . marke . , , . act. . , to . & . , to . & . , , , , . & . , . which power of working miracles when simon magus would have bought for money of peter ; he said unto him , thy money perish with thee , because thou hast thought , that the gift of god may be purchased with money . thou hast neither part nor lot in this matter , for thy heart is not right in the sight of god : repent therefore of this thy wickednesse , &c. acts . , to . . he is so far from enjoyning them to preach the gospel freely without recompence , that he allowes them to take a recompence for it , closing it up with a contrary clause , for the labourer is worthy of his meat and hire , ver . . recited luke . . where the objected words are omited , as likewise marke . . our new mechanick predicants to separate conventicles , who urge this text against ministers maintenance , should receive no money , gift or recompence for their speaking , prating from their disciples , no more than our ministers for preaching , who yet gain far more from deluded blind followers of the blind , than many of our ministers get by their ministry ; yea more than ever they earned by their trades before , which makes them wholly to desert them and turn tub-preachers . this sentence can no waies be truely applyed now to ministers ; for though they receive their ministry and orders freely without purchase ( which some bought for money heretofore ) yet their preparation for the ministry costs them many years study , pains , themselves or their friends , parents many a pound , as i formerly proved ; whereas the apostles received the miraculous gift of healing , preaching immediately by divine inspiration , without study or cost . . if those who receive any office , commission , place freely , must discharge it freely without any reward , pay , as some army-officers , souldiers and others hence conclude against our ministers ; then all our soldiers , and other militarie officers by land and sea , must henceforth at least ( and should have done heretofore ) by the self-same text , reason , serve their country freely without receiving any pay , reward ; contributions from the people ; since ( i conceive ) few or none of them ever actually bought their offices , places , commissions , or paid any monie for their listing ; yea then all other publike officers ( real or pretended ) must serve their countrie gratis , unlesse they purchased their offices from those in late or present power ; and then they are ipso facto void by the statute of e. . c. . against buying or selling of offices . now upon this condition , that all souldiers , all militarie and civil officers will henceforth serve their countrie freely , without pay or recompence , for the oppressed peoples future freedome from long unsupportable monethly taxes , impositions , excises ; i dare presume all or most of our ministers will be content to preach the gospel freely to the people likewise , without tithes or other dues , for so long a time , as the souldiers and other officers shall freely serve our nation ; and i suppose all ministers in scotland , ireland , will do the like ; if the officers , souldiers there will first really begin the precedent . which if they here and there refuse , they must give ministers leave to enjoy their antient tithes , dues , stipends for preaching the gospel , so long as they demand their former pay and salaries ; and renounce the objected text , as fatal to their own wages , as the ministers , unlesse they dearly bought their offices , commands , and did not freely receive them ; which if true ( as i presume it false ) very few of them would publickly acknowledge . the second objection ( most urged to me by some pendennis souldiers , whiles there a prisoner under their gards ) is the example of the apostle paul , who staying and preaching at corinth a year and six monthes , because he would not be burdensom , but preach the gospel freely to them without charge or reward ; wrought with his own hands , and got his living by making tents ; as is recorded , acts . , , , &c. & . . cor. . . & . , , , , , . cor. . , . & . , , , . the like he did among the thessalonians , labouring night and day , because he would not be chargeable to any of them , when he preached unto them the gospel of god , thess . . , . thess . . . from whence they conclude , that all other ministers ought to preach the gospel freely , and to labour with their hands day and night in some other calling to supply their necessities and maintain themselves and families , that they may not be chargeable to the people . to which grand argument ( requiring the fullest reply ) i answer , that this general inference from pauls particular practice in these two churches , is very lame and unsound ; for , . paul expresly resolves , that all apostles and ministers of the gospel have a just right , power to receive a competent maintenance as wages from the people , and most strongly proves it to be an ordinance of christ himself , in some of the objected texts , as i have at large demonstrated . . he likewise declares ( with a salvo jure , as lawyers speak ) that himself had such a just right , power to receive wages and maintenance from the very corinthians and thessalonians themselves , as well as others , though he made no use of his power : witness , cor. . , , . where thus he expostulates , have we not power to eat and to drink , and to reap your carnal things , for sowing unto you spiritual things ? if others be partakers of this power over you , are not we rather ? nevertheless we have not used this power . and thess : . , . neither did we eat any mens bread for nought , but wrought with labour and travel night and day , that we might not be chargeable to any of you ; not because we have not power , but to make our selves an example for you to follow us , &c. we have much talk and crying up of late , have we not power , power , and present power ? in most grandees mouthes and publick papers ( especially souldiers who carrie it by their sides ) instead of our old language , have we not law , liberty , right , fréedom ? the things they say they fought for on the peoples behalf , who pay them : which words , things , the greater cry of have we not power , &c. hath made us not to have and quite swallowed up amongst us . i wish all such officers , souldiers , grandees who press these texts against ministers tithes , and most use these words have we not power , ( if derived from god , or the apostle who thrice mentions it in these texts ) would only use and speak them in the apostles sense , language , ( in not assuming , usurping , but utterly disclaiming the real practice and abuses of their power in his self-denying words , worthie to be written in capitals , that all persons of , or in power may now read and practise it ) nevertheless we have not used this power , but wrought with labour and travel night and day , that we might not be chargeable to any of you , to make our selves an ensample for you ( ministers ) to follow us : then we should be no longer over-charged with endless taxes , excises , &c. by , for , or from any who have power , nor grieved with any fresh changes of laws , civil or church-government , or ministers setled maintenance , but be a free state and nation indeed , as some have long promised to make us , but still the quite contrarie way in direct opposition to the apostles nevertheless we have used and will still use this armed , army , tyrannical , arbitrary power , that we might be chargeable ( yea very chargeable ) to every of you : therefore no wonder our ministers ( in their objected sense ) do the like by their example , in exacting their tithes , dues , ( which they may justly do ) till they disclame the use of their iron power , in imposing , levying new taxes , excises , on ministers as well as people , in strange untrodden waies , to pay their own and souldiers salaries to support their self-created lawless power in the highest strain of exercisse , which they condemn in ministers in a far more inferiour degree ; who questionless may as lawfully make use of it , as paul himself might have justly done , as he resolves , though he suspended its actual exercise for a time . . paul records . special reasons why he made no use of this his evangelical power amongst the corinthians , but laboured with his hands . . that he might not hinder the gospel of christ among the corinthians , cor. . . they being then most of them pagans , the rest but newly converted to the gospel by his preaching , and all of them very worldly , covetous , as he insinuates , cor. . , , . ch . . , , , c. . , , . cor. . , to . . that he might not seem to abuse his power in the gospel in the opinion of these covetous worldlings , cor. . . . that he might adde to his glory , in undergoing necessities for christ , wherein he gloried ; and adde to his future reward , cor. . , to . cor. . , to . . and principally , to cut off occasion of slander and reproach from some false apostles , and deceitfull workers and ministers of satan , transforming themselves into angels of light , ( who sought occasion to slander him ) accounting his preaching very contemptible , and him to be none of christs , but a very reprobate , cor. . , , . c. . , . ( as some now esteem our ministers ) seeking a proof of christ speaking in him , c. . . ( as they doe now in our ministers ) glorying ( as some of the same tribe do now ) that they preached the gospel freely , and wrought with their own hands ; whereupon he addeth , that wherein they gloried , they might be found even as he , cor. . , , . which false apostles and dissembling hypocrites for all their braggs , did yet enslave , take of them , fleece and abuse them , more than any faithfull ministers , and yet they patiently endured it ; as he there affirms , and insinuates , v. . for ye suffer if a man bring you into bondage , if a man devour you , if a man take of you , if a man exalt himself , if a man smite you on the face ; taxing their wisdom and pusillanimitie for this their asinine sottish stupiditie ; when as neither paul himself , nor titus , nor any other of those ministers he sent unto them , did either burden , or catch them with guile , or make a gain of them , as these false apostles , domineering hypocrites , and ministers of satan did ; cor. . , , . these were the reasons expressed by him , why he took no wages of the corinthians , and supported himself with his own labour , but this is not our ministers case , after our so long enjoyment of the gospel , and their enjoying of a setled maintenance by tithes and glebes x above years space , so long since setled on them by our devout saxon kings , and continued ever since . when our ministers have the self-same reasons as paul had amongst the corinthians , to move them to pursue his objected practice ; i doubt not but they will chearfully imitate it , for the advancement of the gospel , and winning souls to christ . ly . the reason why paul exercised not this power among the thessalonians , labouring amongst them night and day to support himself , was much different from the former ; thus recorded by him ; thess . . , to . when he was among them he heard , that there were some who walked disorderly , working not at all , but were busie-bodies , ( just such as our new preaching weavers , ginger-bread makers , smiths , soldiers , citizens , and other jesuitical disguised mechanicks are , who give over their trades , work , to busie themselves only in gathering new conventicles , in new moulding our church , state , in preaching openly and in corners every where to carry on their own worldly and jesuitical designs : whereupon he then commanded them that if any ( such busie-bodies ) would not work ( but forsake his calling ) neither should he eat : ( a very good gospel-law , if duly executed , to quell all such busie-bodies ) and upon this occasion , not because he had not power , but to make himself an example for them to follow , ( and encourage these busie-bodies , with all other loiterers to labour ) he refused to eat any mans bread freely , but wrought with labour and travel night & day , that he might not be chargeable to any of them . yet because this his example did not reform all whiles he was present , but some such idle busie-bodies still continued their practice notwithstanding ; he gives them this new precept in and by this epistle , vers . . now them that are such we command , and exhort by our lord jesus christ ( and o that our prating busie-bodies who step out of their own callings into other mens and into the ministers too , would hearken and obey him ! ) that they with quietnesse work , ( or , do their own work , as some translators render it , not other mens ) and eat their own bread : ( not live upon other mens trenchers , sweat , labours , as many thousands doe now ) and , if any obey not our word , signifie ( or note ) that man by an epistle , and have no company with him ( then he will be a separatist in good earnest ) that he may be ashamed ; yet count him not as an enemie , but admonish him as a brother . if our ministers working with their own hands at our preaching mechanicks trades , would reduce them to follow their trades , and give over busying themselves in ministers and other mens publick callings and state-affairs , i presume many of them would fall a working for a time for such a good end : but since pauls own example in this kinde did not reclame such busie-bodies then ; whereupon he prescribed another more effectual remedie , if duely put in execution by ecclesiastical and civil magistrates : our ministers ( who have lesser hopes to reclame them now by such a practice , which would give scandal unto many , and make them neglect their proper function ) have neither reason , nor precept to follow this his singular voluntarie precedent upon this ground of his , which is no waies binding to them . . though paul himself then laboured among the corinthians and took no wages from them ; yet he received wages from other churches at the same time , to supply their lack of service unto him : cor. . , . which by way of sarcasme ( to upbraide their covetousnesse , tenacity and ingratitude towards him ) he calls , robbing of other churches ; because it was to do them service , not those churches : not that it was robbery indeed ( as some ignorant asses judge it , who understand not rhetorick and eloquence ) for in the next verse he stiles it , a supply ; and phil. . , , . a communicating to his necessities ; a well-doing , a fruit abounding to their account , as well as to his rejoycing , an odour of a sweet smell , a sacrifice acceptable and well-pleasing unto god ; and wages in the self-same text ; therefore no unlawful robbery . . though the niggardly corinthians saved their purses by pauls labour and free preaching , yet they gained no honour , but disgrace and sharp censures from him for it : witnesse cor. . , , . even unto this present hour we both hunger and thirst , and are naked , and are buffeted , and have no certain dwelling place ; and labour working with our own hands , &c. i write not these things to shame you but , as my beloved sonnes i admonish you : ( of your harsh , ingrate , despitefull carriage towards me , which makes my condition so uncomfortable : ) which he thus seconds , cor. . , . have i committed an offence in abasing my self , that you might be exalted , because i have preached the gospel of god freely ? i robbed other churches , taking wages of them to do you service . and ch . . , , . truly the signes of an apostle were wrought among you in all patience , in signes and wonders , and mighty deeds ; for what was it wherein ye were inferior to other churches , except it be , that i my self was not burdensome to you ? forgive me this wrong : behold , the third time i am ready to come to you , and i will not be burdensome to you , for i seek not yours but you , &c. and i will very gladly spend and be spent for you , though the more aboundantly i love you , the lesse i be loved . whence all may learn , that it is a great disparagement , stain , and certain signe of want of love both to the ministers and ministry of the gospel , for any church , people to suffer or enforce their minister to hunger , thirst , be naked , to have no certain dwelling place , and to labour working with his own hands , that he may preach the gospel freely to them : and such kind of ungratefull , ungodly people , who cause ministers thus to spend and be spent for them , will be so far from loving or respecting them for it , that the more they love them in this kind , the lesse they will probably love them again , as the corinthians did paul : who traduced , slandered him , as no true apostle , a weake contemptible preacher , and a very reprobate , in stead of commending him for his extraordinary paines and cost , in preaching freely to them , cor. . . & . , . & . , , . who then would hearken to , or gratifie such perverse beasts , and such unthankfull hypocrites , though appearing in the shapes of saints , and notion of the godly party , ( or rather ungodly faction ) against our ministers and their maintenance ? . though paul thus laboured night and day with his own hands to maintain himself and preach the gospel freely , yet it followes not hence , that all other ministers now should do it . . because he being an inspired apostle , able to preach by immediate inspiration and revelation from god without study or premeditation ( as is probable , ) his labour in this kind , was no hindrance to his diligent , constant , powerfull preaching . but no ministers now , ( being thus immediately inspired ) they must study , meditate day and night for what they preach , and examine their doctrines seriously by gods word before they vent them : whence paul enjoynes even timothy himself , tim. . , , . to give attendance to reading , to exhortation , to doctrine , to meditate upon these things , and give himself wholly to them , that his profiting might appeare to all men : and to take heed unto his doctrine : which he could not do , if he should labour night and day with his hands as paul did , to support himself and preach gratis : wherefore he tells him , tim. . . that no man that warreth ( a spiritual warfare as he and other ministers do ) intangleth himself with the affaires of this life ; that he may please or serve him who hath chosen him to be a souldier . a direct inhibition to ministers to follow pauls precedent ; who cannot serve and please god in their ministry , if they labour day and night in mechanick trades for their living . and upon this ground ( which is very observable ) the very apostles themselves , act. . , , , . calling the multitude to them , said , it is not reason ( pray marke it ) that we should leave the word of god and serve tables ( much lesse work day and night at a mechanick trade : ) wherefore brethren looke ye out seven men of honest report , full of the holy ghost & wisdom , whom ye may appoint over this businesse : but we will give our selves continually to prayer , and to the ministry of the word : and the saying pleased the whole multitude . from which texts it is clear , . that the apostles themselves resolve , that they could not exercise the very antient office of a deacon in serving tables , attending on widowes and other poor , aged , impotent saints , without neglecting , or giving over preaching of the word : much lesse then can ministers labour day and night with their hands at some trade or other , to maintain themselves and their families , without neglecting and desisting from the ministry . . that apostles and ministers of the gospel , ought to give themselves wholly and continually to prayer , preaching , meditation , reading , and other ministerial duties ; and therefore must not undertake or intermeddle with secular imployments and callings . . that the apostles themselves have punctually resolved , and that all the primitive christians unanimously assented to it ; that it is not reason , that they should leave preaching the word of god , so much as to wait upon widdowes and poor people at their tables : whereupon they elected seven deacons to discharge that office . therefore it is far lesse reason , ( and they are most wicked and unreasonable men without faith or charity , from which the apostle prayes god deliver him and all his ministers , thess . . . who now urge it ) to enforce all our ministers to neglect , forsake their ministry , preaching , studies now , to follow handicraft trades to get their livelihood , that so they might preach freely to the people without any recompence , or reward at all . . all godly ministers , people in all ages , and the very objectors themselves of late years have extremely condemned , censured our bishops and prelatical clergy , together with popes , popish prelates and clergy men , for intermedling with , and executing civil offices , imployments and worldly affairs , which necessitated them to neglect the preaching of the gospel , and their ministerial duties ; whereupon not only many antient and late councils , synods , but acts of parliament , have specially prohibited them , to be privy counsellers of state , judges , justices of the peace , lord chancellors , treasurers , keepers of the privy seal , stewards of courts , commissioners ; and our very * last parliament by several late acts disabled all bishops from sitting as peers in parliament , and them with all other clergy men , to execute any temporal offices , or commissions , as (y) incompatible with their spiritual function and an impediment to their ministry : according to the old proverbial verse , pluribus intentus minor est ad singula sensus . which i have proved at large by testimonies in all ages , in my breviate of the prelates intolerable vsurpation ; printed anno. . my vnbishoping of timothy and titus ; and antipathy of the english prelacy to monarchy and vnity , anno . therefore to force our ministers to become mechanicks , and give themselves wholly to worldly callings , imployments incompatible with their professions , must needs be an irrational , unchristian project , unworthy the profession or professors of the gospel , not justifiable from pauls example in them that would enforce it . . if this precedent of paul be a sufficient argument to prove , that our ministers ought to work for their living , and to preach the gospel freely without any reward or coercive maintenance ; i shall then by the self-same reason prove , that all officers and souldiers of the army who make this objection , and all our publick civil officers approving it , ought likewise to fight and discharge their offices without pay or salary , and to work with their own hands to get their livings , without oppressing the people with any contributions of excises to maintain them . . because ministers and they are both of one profession in several senses , to wit , souldiers , tim. . , . as i have formerly proved : therefore to fare both a like in respect of pay or hire . . because god records in scripture , ezech. . . that nebuchadnezzar king of babylon ( even by gods appointment ) caused his army to serve a great service against tyrus ; every head was made bald , and every shoulder was ●eeled . yet had he no wages nor his army for tyrus for the s●rvice that he served against it . if nebuchadnezzer and his army served god freely against tyre without wages many years ; should not our present army and officers much more serve god and their country freely without wages ? true it is , god gave them ( after their service fully ended ) not any taxes or contributions from their own country-men or nation , but the land and spoyle of egypt for their wages , because they wrought for him , verses , . and if our officers and souldiers will have such wages , it must only be the lands and spoyles of forein aegyptian enemies , not our churches , or crown-lands , or revenues ( formerly easing the peoples taxes , and defraying all garrisons , and ordinary publick expences ) which they now claim and enjoy for arrears of pay . . nehemiah , both a godly souldier , general and governour of his people , records this for his own honour , and others imitation , neh. . , , , , , . moreover from the time that i was appointed to be their governour in the land of judah from the . even to the . year of artaxerxes the king , even twelve years , i and my brethren have not eaten the bread of the governor . but the former governours that had been before me were chargeable and had taken of them bread and wine , besides forty shekels of silver ; yea even their servants bare rule over the people ; but so did not i ( marke the reason ) because of the fear of god. yea , also i continued in the work of this wall , neither bought we any land ( as many officers and souldiers do now ) and all my servants were gathered thither unto the work . moreover there were at my table an of the jewes and rulers , besides those that came unto us from among the heathen that were about us . now that which was prepared for me daily was an oxe , and six choyce sheep ; also fowles were prepared for me , and once in ten daies store of all sorts of wine ; yea for all this required not i the breed ( that is , the allowance , salary , revenue ) of the governor , ( observe the ground ) because the bondage was heavy on this people ( and hath it not been for . years space , or more , and still is as heavy or heavier upon us ? ) think upon me my god for good according to all i have done for this people . here was a worthy governour , general , magistrate , souldier , really fearing god , and tendering the ease , liberty , welfare of the people , in good earnest , who with all his officers and souldiers for . years space together , though he and they laboured constantly in building the wall of jerusalem , and he was at so great expence each day for his own table , as governour , yet took no free-quarter , bread , wine , money , wages or salary from the people , as other governours , officers before them had done ; and that because of the fear of god , because the bondage was great upon the people ; expecting only a reward from god. i may safer argue from this scripture precedent ; ergo , all our governours , generals , officers , souldiers fearing god , during all our years wars , and as long as they and our bondage shall yet continue , are bound to serve their countrey freely , without taking free-quarter , corn , wine , money , wages , contributions or excises from the people ; and ought not to purchase any lands ; and by consequence are thereupon obliged in conscience to make restitution of all the free-quarter , pay , lands , woods , rents , rewards and publick revenues they have received for their pay , arrears , or rewards of service , expecting their reward only from god hereafter : than they can from pauls example conclude , that ministers ought to preach the gospel freely without wages . and so much the rather , because (z) sir william lewes , mr. denzill holles , and col. walter long , . of the xi . members falsly impeached by the officers and army , an : . for engrossing much of the publike treasure , and giving no accompt of what they had received ; were so generous and truly noble , as in their accompts ( long before passed and allowed by the commons house ) to demand no pay at all ; the first , as governour of portsmouth ; the other as collonels in the army under the earl of essex ; mr. holles refusing to accept of the thousands voted him out of the kings revenue for recompence of his former wrongfull imprisonment by the king for his countries good service in parliament . whose precedents their accusers ( at least ) are as far bound to imitate in this kind , as our ministers are st. pauls . upon which considerations , i now refer the verity , solidity of this argument from pauls example to the judgements , consciences of all officers , souldiers and others formerly triumphing in it , who upon second thoughts must needs disclaime their own pay , and salaries for the future , or else renounce this grand objection as ridiculous and irrational . the third objection is from the epistle of john vers . , , . where john writes to gaius ; beloved , thou dost faithfully whatsoever thou dost , both to the brethren and to strangers : which have born witnesse of thy charity ( or liberalitie ) before the church , whom if thou bring on forward on their journey thou shalt do well , because that for his name sake they went forth , taking nothing of the gentiles . whence some may inferr , ( though i hear not this text urged by any ) that ministers ought now to preach the gospel freely to the people , and to take nothing of them ; because john mentions some such that in his time preached to the gentiles taking nothing of them . to which i answer , . that this text questionless was meant of paul ( the apostle of the gentiles , and his companions timothy and titus , who took nothing of the corinthians , cor. . , , , , . ) seeing gaius was not only st. pauls companion sometimes , being converted , baptized by him , act. . . & . . cor. . . but expresly stiled by him , rom. . . gaius mine host and of all the churches , ; living then at corinth , where paul preached freely ; to whose precedent i have given a full satisfactory answer already . . it is evident , that this gaius ( for some time at least ) lodged paul and other brethren ; being not only faithfull , but charitable and liberal towards them , though the other corinthians were not so . . st. john addes , vers . . we therefore ought to receive such , that we might be fellow helpers to the truth : wherein he concludes it to be a dutie incumbent upon all christians , to receive , encourage , accompany , be charitable and liberal to the apostles and ministers of the gospel , thereby to be fellow-helpers to the truth , which otherwise they shall much hinder . so as this scripture fully warrants my proposition , not oppugnes it . the fourth objection , is the opinion of our famous english apostle , john wickliff , who held tithes and ministers maintenance to be meer alms , whose opinion is largely defended by eminent john hus , in mr. fox his acts and monuments ; edit . . vol. . fol. , to . therefore not due to ministers , but detainable or payable only at the meer wills of the people , as meer alms to beggars are , which are arbitrary . whereto i answer , . that tithes and ministers maintenance , are not pure alms , nor so styled by wickliff , hus , augustine or chrysostom ( whom hus citeth ) as if ministers had no right unto them for their pains , as a just debt , hire , wages ; or , as if men might detain them at their pleasure ; since we are expresly not only exhorted , but commanded , both in the law and gospel , to give alms to those that want them , and that as debters to them so far as our abilities and their necessities require , rom. . , , . & . . cor. . , . cor. . & . throughout , heb. . . tim. . , , . ephes . . . luke . , . & . . gal. . . compared with deut. . , to . exod. . . levit. . deut. . prov. . . & . . & . . & . . eccles . . . dan. . . yea the lawes and statutes of our land , expresly enforce and compell men to contribute to the poor as they shall be ●ss●ssed ; as well as to pay tithes or taxes ; as you may read in rastals abridgement , and daltons justice of peace ; title poor . but they are styled by them pure alms in three other respects . . because they were originally given by people to the ministers that were needie , out of charitie and compassion , for gods sake● , as well as for their work sake . . because ministers after their own wants supplied , did use to distribute part of them to the poor and needy , as alms , and are obliged still to do it ; ( as * abbots , bishops and others did , to whom lands were given in pure and perpetual frank-almoign . ) . because they are pure alms in respect of god , as all other goods of fortune are ; which we both begg and receive from god ; and in this respect they write , every man as well kings and emperours , as ministers , priests people , are beggars of god. . as they stiled tithes alms in these respects : so they likewise granted alms to poor people , and tithes to be * a debt ; for every man duly giving alms , doth as he ought to do ; and so he that giveth tithes . they are their expresse words . . whereas they allege , that neither doth debt utterly exclude the purity of alms before god : and that it is no argument , that if the curate doe perform his corporal ministry , that hee ought therefore to challenge tithes by any civil title : because that as well on the behalf of him that giveth the tithes , as also in the behalf of the curate , every such ministry ought freely to be given , and not by any civil exchange . i conceive it both a fallacy and errour in them , being a just debt which may be demanded by a divine and civil right too , when and where setled by a civil law , though freely to be given to the minister , without coercion or sute of law both in point of conscience , and by way of civil exchange too , out of a civil compact or contract . . this opinion , that tithes were pure almes , and not due to ministers by a divine right jvre jvstitiae ; was first introduced by the friers mendicants , to gain them to themselves , and to exempt themselves and their lands from payment of them ; as * mr. selden proves . therefore to be rejected as antichristian . and thus much in confirmation of the first proposition , and refutation of all arguments i yet know made against it . chap. ii. i now proceed to the proof of the . proposition , wherein the hinge and marrow of the controversie concerning tithes is included . that the maintenance of the ministers of the gospel ( and of places , houses for gods publick worship ) by tithes , glebes , oblations , ( yea by spoyls won in battel by generals , collonels , captains , soldiers , ) is not only lawfull , expedient , but the most fitting , rational , convenient maintenance of all other , warranted by direct precepts , precedents , both before and under the law , which doth no waies abolish , condemn , but approve and confirm this way of maintenance . before ever the levitical or ceremonial law was instituted ; as the godly patriarchs built altars and houses for publick worship unto god , gen. . , . c. . . c. . , . c. . , . c. . : c. . . c. . , , . c. . : & . , , . so they likewise gave tithes to the priests of god. the very law of nature , (z) engraven in their hearts , before any written moral or ceremonial law , dictating thus much to them , that , as there was a god who created them , in whom they lived , moved , and had their being ; so likewise this god was to be solemnly worshipped by them , as well in publick as private ; by way of homage , gratitude , and bounden dutie , psal . . , to . ps : . , , , . isa . . , . acts . , , . which worship of his ( especially when men multiplied into great and many families , villages , cities , kingdoms , republicks ) could not be decently , orderly , constantly performed in publick , without appointing some certain times and places of worship ; a some certain holy persons and priests to discharge the publick duties , solemnities of their worship ; and some convenient certain portion out of their estates for the maintenance , encouragement of those priests in the execution of their office , on which they were to give attendance . upon which grounds , as the patriarchs before the law from the very creation ; ( as b many divines infer from gen : . , . exod : . , to . & . . & . . deut. . . heb. . . ) dedicated every seventh day to gods peculiar worship , by his example and prescription ; so they likewise offered a certain portion of the fruits of their ground , fields , flocks to god in sacrifice , as a tribute due to him , by and from whom they received , enjoyed all the rest they had . whence the scripure expresly records of cain and abel ( the two first-born of the world ) gen : . , , , . that cain being a tiller of the ground , brought of the fruits of the ground an offering to god ; and that abel being a feeder of sheep , he also brought of the firstlings of his flock , and the fat thereof for an offering to the lord ; as most conceive their father adam did before them : by whose precept and example they did it : after them we read , that noah built an altar unto the lord , and took of every clean beast , and of every clean fowl , and offered burnt-offerings on the altar , when he went out of the ark , gen. . . ( which he and his ancestors from the creation in all probability usually practised , though not specially recorded by moses , no more than many other memorable accidents , actions , for brevity sake . ) now these clean beasts and fowls which he sacrificed entring into the ark by sevens : that is , seven of every sort : gen : . , . he offered one of each kind at least ( and so one of seven ) unto god , who consecrated , reserved one day of seven from the creation to himself . what proportion of their goods , abraham , isaac , and jacob offered on their erected altars in sacrifice to god , is not expressed , though probably it was such as god afterwards prescribed the israelites , their posterity , not long after by his written law in moses time , augmented upon any extraordinary emergent occasion , though never diminished from its usual rate . and for the priests encouragement ( directed by the very dictate of nature , reason informing them , that every labourer was worthy of some competent hire , as christ resolves mat. . . luke . . ) they pitched upon c the tenth of their encrease and gains of every kinde , as a competent fitting allowance , guided therein by divine inspiration ( as is most probable , if not infallible ) it being the self-same proportion god himself afterwards prescribed , ratified by his own written law in the old testament , and approved in the new , as i shall manifest by these ensuing scriptures . . that tithes were paid and vowed to god by the religious patriarchs before the aaronical priesthood instituted , or levitical law given , is undeniable by two scripture instances : the first of them is thus recorded , gen : . , , , . that abraham returning victoriously from the slaughter of chederlaomer and the kings that were with him ; melchisedec king of salem met him , and brought forth bread and wine , and he was the priest of the most high god : and he blessed him and said , blessed be abraham of the most high god , poss●ssor of heaven and earth ; and bl●ssed be the most high god , which hath delivered thy enemies into thy hand . and he gave him tenths of all . this history is thus recited and amplified in the new testament , heb. . . & . , &c. jesus , made an high priest for ever after the order of melchisedec king of salem , priest of the most high god , who met abraham returning from the slaughter of the kings and blessed him : to whom abraham gave a tenth part of all ; first being by interpretation , king of righteousness , and after that also king of salem , which is king of peace : without father , without mother , without descent , having neither beginning of dayes , nor end of life , but made like unto the son of god , abideth a priest continually . now consider how great this man was , unto whom even the patriarch abraham gave the tenth of the spoils . and verily , they that are of the sons of levi , who receive the office of the priesthood , have a commandement to take tithes of the people , according to the law , that is , of their brethren , though they come out of the loyns of abraham : but he whose descent is not counted from them , received tithes of abraham , and blessed him that had the promises . and without all contradiction the lisse is blessed of the better . and here men that die receive tithes , but there he [ received them ] of whom it is witnessed that he liveth . and , as i may so say , levi also who receiveth tithes paid tithes in abraham . for he was yet in the loynes of his father , when melchisedec met him . if therefore perfection were by the levitical priesthood , ( for under it the people received the law ) what further need was there , that another priesthood should rise after the order of melchisedec , and not be called after the order of aaron ? for the priesthood being changed , there is of necessity a change also of law , &c. i shall draw my observations , arguments concerning tithes from both these scriptures here recited , and then answer the main ( if not sole ) scripture objected against tithes , drawn from the cloze of the apostles words . . it is undeniable from these texts , that abraham the father of the faithfull , is the first person we precisely read of who gave and paid tithes , recorded both in the old testament and new , for his greater honour , and the imitation of all the faithfull under both testaments . . that he gave and paid tithes to melchisedec , the first priest of the most high god , mentioned in sacred writ . who this melchisedec should be , there is great controversie among the learned ; some affirming him , to be * sem ; others a canaanitish king and priest of that name , and d dr. griffith williams very probably and strongly arguing him to be christ himself then appearing to abraham in his humane shape : as petrus cunaeus held before him . i shall not decide the controversie : certain it is , he was either christ himself , or a real type of christs and his eternal priest-hood ; as the apostle oft resolves . . that he was a priest of a far antienter , better and more excellent order , than the levitical priest-hood ; and that this payment of tithes was long before the law given by moses for payment of tithes to the levitical priests ; and before their order instituted . therefore tithes are not meerly nor originally in their own nature jewish or levitical , ( as some rashly now a verr ) nor eternally abolished as such by christs incarnation , and priesthood , they being originally paid and given , not to the levitical priests , but to m●lchisedec , who was either christ himself , or a type of him and his priesthood , not of aarons . . that this melchisedec , as he had neither beginning of daies , so he had no end of life , but was made like the son of god , and abideth a priest continually ( in (e) respect of the truth he typified ) as christ himself doth , of whom he was a type , who hath an endless life ; and because he continueth ever , hath an unchangeable priest-hood ; and is by the very oath of god , made a priest for ever after the order of melchisedec , heb. . . & . , , , , , , , , . psal . . . therefore tithes being first paid to such an everliving , everlasting , unchangeable priest and priest-hood , for the execution thereof ; may and ought to continue and abide for ever , as long as the priest and priest-hood last : and if so , then tithes are still due , payable to the ministers of christ under the gospel by all the (f) spiritual seed of faithfull abraham , as well as they were by all his sonnes after the flesh to the levitical or aaronical priest-hood whiles in being , and that in the right of christ ; they being ambassadors representing his person , beseeching men in christs stead to be reconciled to god , cor. . , . forgiving men in tho person of christ , cor. . . and in whose persons christ himself still speaks unto men , cor. . . whence christ himself a verres , verily , verily i say unto you , he that receiveth whosoever i send , receiveth me ; and he that receiveth me , receiveth him that sent me : he that heareth you , heareth me ; and he that despiseth you , despiseth me ; and he that despiseth me , despiseth him that sent me , mat. . . luke . . john . . that whatever is given or paid to them for their ministry is given and paid to himself , mat. . . & . , to . and is a sacrifice acceptable , well-pleasing unto god , philip. . . . that abraham gave tithes to melchisedec for the execution of his priestly office ; and that not in offring any carnal or levitical sacrifices to god for him upon an altar , but only for blessing him , and rendring thanks and blessing to the most high god for his victory ; which being one chief part of the ministers of the gospels duty still continuing , even to blesse the people , to praise and blesse god for them , and their successes in spiritual and temporal things , rom. . , , . & . . cor. . , , . & . . cor. . , , . & . , . & . . gal. . . & . . ephes . . , , , , , . & . . to the end , & . , . phil. . , , . & . , . col. . , , , to . & . . thess . . , , . & . . & : , . thess . . , , , . & . , , . & . . tim. . , . heb. . . pet. . , , . & . . pet. . . revel . . , . as likewise to blesse the sacramental bread and wine for their use , cor. . . mat. . . typifyed , as most hold , by the bread and wine melchisedec brought forth to abraham : is a convincing argument to me , that tithes are no way levitical or jewish in their primitive institution , or intrinsecal nature , but rather evangelical ; and are as justly due and payable by all believing sons and children of faithfull abraham , to the ministers of the gospel for blessing them , and praying , blessing , praysing god for them , and other ministerial duties , as they were by abraham to melchisedec , for performing the self-same priestly duties towards him . . that the scope of the apostle in the hebrews , being to prove the honour , dignity , excellency of the order of melchisedecs ( and by consequence of our saviours ) priest-hood above aarons ; he useth this as one demonstration thereof : . that he received tithes of the patriarch abraham himself , heb. . , , to . whereas the levitical priests received tithes only of their brethren , that came out of the loynes of abraham . . that even levi himself who received tithes of his brethren , paid tithes in abraham , ( being then in his fathers loynes ) to melchisedec , as his superior , yea even as the levits under the law paid the tenth of their tithes to the priests , as their superiours , numb : . , , . and this payment of tithes to melchisedec , he recites in the gospel no lesse than five several times one after another , insisting longer on it then on any other argument , to prove the preeminency of melchisedecs priesthood above aarons . whence it undeniably follows , . that tithes are not originally jewish and levitical . . that the receiving of tithes by faithfull ministers now , is no disparagement , but an honour to their ministry and function , as well as to melchisedecs heretofore . . that ministers receiving tithes now , doth no more prove their ministry to be judaical or levitical , than it proved melchisedecs priesthood to be such , which is put in contradistinction to it , and exalted above it by the apostle , even by the very receiving of tithes from abraham . therefore those jesuitical and anabaptistical furies against tithes , who rail against our ministers and their ministry as jewish and aaronical because they receive tithes , and urge this as a disparagement to their persons , ministry , rejecting tith-receiving ministers , as jewish , antichristian , unlawfull , doe herein argue point-blank against the apostle , and thereby conclude melchisedecs ( and by consequence our saviours own priesthood after the order of melchise dec ) to be jewish , antichristian , dishonourable and unlawfull , ( because melchisedec himself received tithes , ) which to do is the highest blasphemy . . that the apostle informs us , that god had never but two orders of priests in the world . the first , after the order of m●lchisedec , in abrahams dayes ; discontinued under the law for a time , but revived again in our saviour christ , and continuing now and for ever in him ; compared here to melchisedec , especially in his nature , the seat of his kingdom , the perpetuity of his life , his sacerdotal blessing , and in the right of receiving tithes ( as hemingius on the place observes . ) the second , after the order of levi and aaron , abolished and changed by christ ; that tithes were paid and belonged of right to both these orders of priests , for the exercise of their function by gods own approbation and appointment ; as a just , fitting , righteous maintenance and reward ; which since they cannot now be paid to christ himself in person , being ascended into heaven , and there sitting at gods right hand , a great high priest for ever after the order of melchisedec ; there is great justice , reason , they should be still paid to , and received by his ministers , whom we have alwaies with us ( as well as the poor ) who are his vicegerents and g stewards , with whom he hath promised to be alwayes present to the end of the world , mat : . . and that as the properest , justest , best , fittest maintenance of all other , appointed , prescribed by god , paid by abraham and all the faithfull by gods direction and approbation , both before and under the law , and is recited , justified , allowed , but no wayes condemned or abrogated by the apostle and gods spirit under the gospel . wherefore those who inconsiderately revile and declaim against tithes as h heavy yokes , jewish burdens , an unequal , unrighteous , wrangling , troublesom maintenance , &c. do herein blasphemously traduce , censure the very wisdom , justice , discretion not only of abraham , and all the faithfull servants of god , approving and paying tithes in former ages , but of god himself who prescribed them , and of the apostle pleading for them , as appertaining to both these orders of gods priests for their perpetual maintenance . . here is one notable observation for all the officers and souldiers of the army seriously to consider ( and o that god would fix it effectually on their spirits ! ) that abraham the father of the faithfull ( as the gospel styles him , rom : . . ) returning victoriously from the first warrs we read of in the world , gave the * tenth of the spoyles taken from the enemy in the warrs , to melchisedec , the first priest of the most high god we finde in the word or world , and an express type of christ , our only high priest , if not christ himself , as some affirm : to teach all generals , officers , souldiers , who professe themselves the sons or children of abraham after the faith , to do the like : and ( which is very considerable ) though this victorious general and souldier was urged by the king of sodom , to take all the spoyl and goods he had taken and rescued from the enemy to himself , and to give him only the persons rescued ; which he magnanimously refused ; saying , i have lift up my hand unto the lord , the most high god , possessor of heaven and earth , that i will not take from a thread even to a shoe-latchet , and that i will not take any thing that was thine , lest thou shouldest say , i have made abraham rich , gen : . , , . ( and o that all commanders , souldiers now , were as conscionable and just in performing their oathes , covenants , vowes , made with hands lifted up unto the lord , as faithfull abraham was ! ) yet he would not renounce , nor give away gods and the priests portion upon any condition ; but gave the tenth of all the spoyl to them , restoring only the surplusage . and should not our generals , officers , souldiers , in these dayes ( who professe and style themselves , the eminentest , most precious saints , and spiritual seed of faithfull abraham ) more really prove themselves such indeed , to god , the world , and their own consciences , by giving the tenth of all their spoils and gains of warres to god and his faithfull ministers ( which i never heard one of them yet did ) and making good all their solemn oathes and covenants to god , ( whereof this was one clause ; i that they shall sincerely , really , and constantly endeavour in their several places and callings , the preservation of the reformed religion , from utter ruine and destruction , against all the treacheries and bloudy plots , conspiracies , attempts and practices of the enemies thereof ; whereof this in present agitation to deprive our ministers of all tithes and setled maintenance , is one of the principal , which will ruine our ministers , ministry and religion with them ) as faithfull abraham really did ; rather than by endevouring what they can ( as too many of them do ) to spoyl them of all their tithes , both predial , mixt and personal , which they have so long enjoyed , not only by a just , civil right and title , confirmed by prescription , the great charter , all sorts of lawes , statutes , ordinances in antient and late times , but likewise by a divine warrant , from this precedent of abraham , instead of giving them the tenth of their spoyls ? which practice , if pursued , as it will insallibly demonstrate them to be no real saints . or children of faithfull abraham ( our saviour resolving , joh. . . if ye were abrahams children , ye would do the works of abraham , in paying tithes as he did ) so it will probably exclude both them , and others guilty of it , out of abrahams bosome , luke . . who will never own nor receive those as his friends or children into his bosome , who are such virulent enemies to his most commendable practice , of paying tithes even of the very spoyls he took in warr. with this argument i have so routed some officers and souldiers , that they blushed for shame ; had not one word to reply , and gave over further rayling discourses against tithes , as men quite confounded , and i hope it will have the self-same effect in all others , when they have well advised on it . that they may have no evasion from the dint thereof , i shall answer all cavils i know of to elude it . the . evasion is this , that this precedent of abraham in giving the tenth of the spoyls of warr is singular and voluntary , not obliging other souldiers to doe the like , or to devote any of their spoyls to god and his service . to this i answer , . that this practice and precedent of abraham , so transcendently eminent for his faith in the old and new testament , in both which it is recorded ; was undoubtedly written for our imitation and instruction , to do the like , as may be evidenced from job . . . cor. . . rom. . . thess . . , . heb. . . thess . . . the rather , because the apostle heb. . . commands us , to be followers of those who through faith and patience inherit the promises ; and then presently after instanceth in abraham , and fals upon his practice of paying tithes of the spoyl to melchisedec . therefore all christian , generals , officers , souldiers must follow him in paying tithes of all their spoyls , as well as in faith and patience ; his precedent , having been the original impulsive ground of all tithes vowed or paid to gods priests or ministers ever since , and of gods subsequent commands to abrahams posterity , to pay tithes to the priests and levites under the law , as the apostle insinuates , heb. . , , , . compared together ; and of all laws , canons since enacted by christian kings and councils for due payment of tithes to ministers of the gospel in christian realms and republicks . . i answer , that this practice of his was frequently pursued by generals , officers and souldiers , in succeeding ages , of which we have very memorable precedents in scripture , wherewith i have shamed and confounded souldiers in discourses with them about tithes . it is specially recorded num. . that when the . officers and souldiers of the israelites under the conduct of phinehas , returned from the slaughter of the midianites with an extraordinary great booty of all sorts ; god gave a special charge , to levy a tribute unto the lord of the men of warr that went out to battel , and to give it to eleazar the priest for an heave-offering of the lord ( which kind of offerings was aarons and his sonnes for ever , from the children of israel , as a due wages for their service , exod. . , . levit. . , , . numb . . , , . deut. . . and is coupled with tithes as being of the same nature , in the two last of these scriptures ) which tribute was accordingly levyed : and because the prey was first equally divided between them who took the warr upon them , and went out to battel ; and between all the congregation , which had the other moity of it ; god out of the souldiers moity ( the prey being very great ) reserved onely one of five hundred out of the captives , beeves , asses and sheep , for the priests , which were but few ; and one of every fifty for the levites , of the peoples moity ; the priests share amounting to . sheep , . oxen , . asses , . captives ; and the levites share to tenne times so many . after which tribute levyed , v. , . the officers which were over thousands of the host , the captaines of thousands and captaines of hundreds brought an oblation , to the lord , what every man had gotten of iewels of gold , chaines and bracelets , kings , ear-rings and tablets to make an atonement for their souls before the lord , amounting to sixteen thousand seven hundred and fifty shekels , ( every (k) shekel weighing half an ounce ) which eleazer the priest took of the captains of thousands , and of hundreds , and brought it into the tabernacle of the congregation for a memorial of the children of israel before the lord , numb . . , to the end . here were self-denying saint-like officers , colonels and captains indeed , after all the former deductions and tributes out of their spoyl , to bring to the priest , and offer up to god all their jewels of gold , chains , bracelets , rings , ear-rings , tablets and richest plunder they had gotten in the warrs , for the maintenance of his worship ; when our officers , colonels , captains , souldiers shall do the like , and pay a tribute of the best of their spoyls to our ministers , as these by gods command did to the priests and levites , not purchasing church-lands and revenues with them , (l) devoted to the augmentation of our ministers small stipends ; we shall cry them up for self-denying saints and souldiers indeed ; and say , they are no self-seekers . if this scripture precedent be not enough , behold a whole cloud of precedents , imitating them and faithfull abraham , recorded , united in one memorable text seldome read or taken notice of , chron. . , , . which shelomith and his brethren , were over all the treasures of the dedicated things , which david the king , and the chief fathers , the captains over thousands and hundreds , and the captains of the host , had dedicated : out of the spoyls won in battels did they dedicate to maintain the house of the lord ( mark and imitate it o ye army-officers , captains , souldiers ! ) and all that samuel the seer , and saul the son of kish , and abner the son of ner , and joab the son of zerviah had dedicated , was under the hand of shelomith and his brethren . here we have examples of all sorts and sizes for our army-officers and souldiers imitation . . we have david , a victorious warrier , general , king , and (m) man of god , after gods own heart , dedicating the treasures & spoyls he took from his enemies in battels , to the house and service of god ; thus more specially recorded for his honour and others practice ; sam. . , . and tol sent joram his son to king david to salute him , and to blesse him , because he had fought against hadadezer and smitten him , and brought with him vessels of gold , and vessels of silver , and vessels of brasse , which also king david did dedicate to the lord , with the silver and gold that he had dedicate of all nations which he subdued : of syria , and of moab , and of the children of ammon , and of the philistines , and of amalek , and of the spoyls of hadadezer son of rehob king of zobah . recorded again in chron. . , to . with this addition . and david took the shields of gold which were on the servants of hadadezer , and brought them to jerusalem . likewise from tibhath and from chun cities of hadadezer brought david very much brass , wherewith solomon made the brazen sea , and the pillars of the vessels of brasse . what the value of the spoyls which he dedicated to god and his service amounted to , himself records , chron : . . now behold in my trouble i have prepared for the house of the lord an hundred thousand talents of gold , and a thousand talents of silver , and of brasse and iron in aboundance without weight : besides what he dedicated out of his own proper estate , registred in chron. . , . . we have joab (n) davids captain general , the captains over thousands and hundreds , and the captains of the army , dedicating out of the spoyls won in battels to the service of the house of the lord : ( and that in a liberal proportion ) even five thousand talents of gold , and ten thousand drams ; and of silver ten thousand talents , and of brasse talents , and one hundred thousand talents of iron , besides precious stones , all which they offered willingly with a perfect heart unto the lord , rejoycing with great joy they had done it , chron. . , , , . when our generals , officers , collonels , captains and souldiers of the army shall imitate king david and his generals , colonels , captains , officers , souldiers in such a liberal contribution of the jewels , gold , silver , brasse , iron and spoyls they have won in battels , at home and from other nations , to repair or build houses for gods publick worship , and maintain the ministers of the gospel , in stead of seeking to demolish and spoyl those stately edifices which our pious ancestors have erected for that purpose , and breaking down the carved work thereof with axes and hammers ; of which david much complaineth , psal . . , , , , , , . and in lieu of endevouring to devest our ministers of their remaining lands , tithes , glebes not yet devoured ; all the world will proclaim them , men after gods own heart , and men of god in truth , like david , and give over censuring them for sacrilegious harpyes , as yet more like to zeba and zalmunna , who said , let us take to our selves the houses of god in possession , ( as david himself objects against them , psal . . , . ) than to david , or his officers , captains , souldiers . . here is samuel the seer , doing the like , out of his spoyls won in battel : a precedent for all those souldiers who will be seers , speakers , and new-lights , to imitate . . if these good mens examples be neglected , yet let the precedents of bad men annexed to them shame and excite others to this duty : here is saul the son of kish , much talked of and reviled now by many for a tyrant , the very first king given to gods people in anger , and taken from them in wrath , as these object , from hos . . . ( which i conceive rather to be meant of jeroboam the idolatrous usurper , who made israel to sin ; as judicious interpreters prove , by the chron. . . compared with kings . , to . and the context likewise , which makes mention of the israelites idolatry in kissing the calves erected by jeroboam ; and speaks only of the kingdom of israel , as divided from that of juhah after sauls , davids , and solomons death ) yet he as bad as they make him , together with abner (o) his chief captain ( none of the best of men , as sam. . , . discovers ) had so much piety , zeal , religion in them , as likewise to dedicate part of their richest spoyls of warr to the maintenance of gods house and worship . and will it not be a great dishonour to those generals , officers , colonels , captains , who now pretend themselves the holiest , justest , zealousest saints , not to be as bountifull towards the maintenance of gods house and worship , out of their spoyls , as saul , or abner , whom they brand for tyrants and ungodly wicked men ? if these precedents be ineffectual to work upon any covetous or sacrilegious sword-men , let them reflect upon others , who were idolaters , how near they came , in their way , to imitate abraham , david and these forecited warriers . when nebuchadnezzar king of babylon had taken jerusalem , ransacked and burnt the glorious temple there , towards which david and his captains contributed so largely out of their spoyls , he had so much piety and natural religion in him ; as to dedicate all the vessels of silver and gold , which he took out of the house of god , to the honour and service of his idol-gods , and put them in the temple at babylon , in the house of his gods , not converting them to his private or publick treasury , chron. . , . king. . . ezra . . . which vessels afterwards being brought forth thence , and profanely caroused in by belshazzar and his princes , at his great feast , wherein he praysed the gods of gold , and silver , of brasse , of iron , of wood , and of stone ; you may read what fatal judgement presently befell him , to the losse of his life and kingdome , dan. . these vessels though a just and lawfull spoyl won by wars , cyrus king of persia brought forth out of the house of his gods , where nebuchadnezzar had put them , by the hand of mithredah his treasurer , and numbred them unto sheshbazzar the prince of judah , when he proclaimed liberty , and gave order to the israelites to rebuild the house of the lord god of israel in jerusalem ; and this is the number of them , thirty chargers of gold , a thousand chargers of silver , nine and twenty knives , thirty basons of gold , silver basons of a second sort four hundred and ten , and other vessels a thousand : all the vessels of gold and silver were five thousand and four hundred : all these did sheshbazzar bring with him from babylon to jerusalem for the use and service of god in the temple there : all these did cyrus a heathen king freely and chearfully restore , dedicate to god and his temple by a decree , ezra . . to the end . o when will our army-saints part with so many gold and silver vessels to gods house out of their spoyls and plunders ? this decree was afterwards confirmed by king darius and artaxerxes his successors , ezra . . ch . , , . & . , to . these kings with their princes and chief officers also , freely offered , dedicated silver and gold , besides these vessels , amounting to a great value , towards the re-edifying of the temple , and maintenance of the worship , priests of god therein . moreover , king artaxerxes made this decree concerning these vessels ; the vessels also that are given thee for the service of the house of thy god , those deliver thou before the god of jerusalem ; and whatsoever more shall be needfull for the house of thy god bestow it out of the kings treasure-house : adding this further decree ; to all the treasurers beyond the river ; whatsoever ezra the priest shall require of you , let it be done speedily ; unto an hundred talents of silver , and to an hundred measures of wheat , and to an hundred bathes of wine , and to an hundred bathes of oyl , salt without prescribing measure : whatsoever is commanded by the god of heaven , let it be diligently done for the house of the god of heaven ; for why should there be wrath against the realme of the king and his sons ? also we certifie you , that touching any of the priests and levites , singers , porters , nethinims or ministers of this house of god it shall not be lawfull to impose toll , tribute or custom upon them : and whosoever will not do the law of god and the law of the king , let judgement be executed speedily upon him , whether it be unto death , or unto banishment , or to confiscation of goods , or to imprisonment ; ezra . , to . the decree of cyrus and darius , concerning the building of the temple , and restitution of these vessels , is very remarkable , and thus recorded , ezra . , to . let the house be builded , the place where they offered sacrifices , and let the foundation thereof be strongly laid , the height thereof threescore cubits , and the breadth thereof threescore cubits ; with three rows of great stones , and a row of new tamber ; and let the expences be given out of the kings house and also , let the golden and silver vessels of the house of god , which nebuchadnezzar took forth out of the temple which is at jerusalem , and brought unto babylon , he restored and brought again into the temple which is at jerusalem , every one to his place , and place them in the house of god. now therefore tatnai governour beyond the river , shetharboznai and your companions the apharsachites which are beyond the river , be ye far from thence : let the work of the house of god alone , let the governours and the elders of the jewes , build the house of god in his place . moreover , i make a decree , what ye shall do to the elders of these jewes , for the building of this house of god ; that of the kings goods even of the tribute beyond the river , forthwith expences be given unto these men , that they be not hindred . and that which they shall have need of both young bullocks , and rams , and lambs , for the burnt offerings of the god of heaven , wheat , salt , wine , oyl , according to the appointment of the priests which are at jerusalem , let it be given from day to day without fail ; that they may offer sacrifices of sweet savour unto the god of heaven , and pray for the life of the king and his sons . also i have made a decree , that whosoever shall alter this word , let timber be pulled down from his house , and being set up , let him be hanged thereon , and let his house be made a dunghill for this . and the god that hath caused his name to dwell there , destroy all kings and people that shall put to their hand to alter and destroy the house of god , which is at jerusalem : i darius have made a decree , let it be done with speed . if these three heathen kings and conquerors were so zealous to restore all the vessels of gold and silver , taken by their predecessors in their wars , amounting to so great a number , value , to the house of god at jerusalem ; to contribute so liberally towards the re-edifying of it out of their own tributes , treasures , revenues won by war and conquest ; to allow them bullocks , rams , lambs , wheat , wine , oyl , salt , and all other necessaries for daily sacrifices ; to furnish the priests and levites with all necessaries ; yea particularly to exempt them and all the officers of the temple from paying any toll , tribute , tax or custom , which it was not lawfull for any officer to lay upon them , under the severest penalties , and to enact such severe lawes , to passe such bitter imprecations against all such as should oppose or hinder the work , or seek to destroy or deface the temple of god : oh how should this inflame all our generals , officers , souldiers , who professe themselves the choysest christians , and eminentest saints , to imitate and equal them in all these particulars now ? elsehow will they shame , confound and rise up in judgement at last against all such of them and all other plunderers who in stead of restoring all the gold , silver vessels , lead , iron , timber , stones , they have taken from the temples of god , of repairing those churches they have demolished , defaced , of providing necessaries for gods worship , and exempting his ministers from toll , tribute , taxes , custom , endevour to make a prey and spoyl of all our churches , chapels , church-vessels , ornaments , glebes , yet remaining , and oppresse our ministers with endlesse taxes , tributes imposed on them without their consents against all former lawes , and precedents to their utter ruine ; and in stead of paying them the tenths of their own lands and spoyls of war , endevour to spoyl them of those tithes which all others owe or pay them ? of whom hemingius thus complains in his commentary on gal. . . p. . quid dicemus de illis , qui ministros evangelii necessario victu spoliant ? quid de illis qui immoderatis eractionibus tantum non eos interficiunt , ut multi honesti mariti cum si is uxoribus et liberis cogantur quodammodo mendicare ? horam sane factum nihil differre arbitror a sacrilegio & latrocinio , cujus poenas olim cluent architecti et fabri hujus mali . to these scripture precedents of heathen warriers , i might adde the practice of many idolatrous pagan nations ( as the romans , graecians , crotonians , phocians , athenians , carthaginians ) who by the very law , dictate of nature , and example of abraham , gave the tenth of their warlike spoils to their idol-gods and priests ; which because mr. selden recites at large in his history of tithes , ch . . . & review , c. . . & alexander ab alexandro gen dierum , l. . c. . where all may peruse them , i shall only give you the summ of them in learned grotius his words , in his book de jure belli & pacis , l. . c. . sect : . p. . by this law of nature abraham , out of the spoyls which he had taken from the five kings , gave a tenth to god , as the divine author to the hebrews , c. . . explains the history extant in gen. . by which custom the grecians also , with the carthaginians and romans , diis suis decimam de praeda sacraverunt , consecrated a tenth of the prey , or spoyl , to their gods , as to apollo , hercules , iove . and should not christian generals , officers , captains , souldiers then much more doe it now , to god and his ministers , from this precedent of father abraham , instead of robbing them of their tithes ? if any should object , that these were old testament , and heathen practices ; let them remember , that abrahams is more particularly related and frequently mentioned in the new testament than old ; the old relating in general , that he gave tithes of all ; ( which relates to all his substance , as well as spoyls ) and the new testament applying this general to the tenth of the spoyls , heb. . . as * mr. selden , grotius , and others observe . but to hedge up this starting-hole so as none may creep out of it ; we have one memorable precedent in the new testament , coming very near to this of abraham , luke . , to . where we read of a certain centurion ( or collonel ) a man of no small authority , who had souldiers under him ; and said unto one goe , and he goeth ; and to another , come , and he cometh ; and to his servant , do this , and he doth it : this centurions servant , who was dear unto him , being sick and ready to die , when he heard of the fame of jesus , he sent unto him the elders of the jews , beseeching him that he would come and heal his servant : and when they came to jesus they besought him instantly , saying , that he was worthy for whom he should do this : ( and why so ? ) for he loveth our nation , and hath built us a synagogue : whereupon jesus went with them , and healed his servant ; marvelling at the centurions words , and turning about , and saying unto the people that followed him , i have not found so great faith , no not in israel . this great centurion and commander was no jew , but a gentile , one who but newly heard of christs name and same ; yet he had so much piety and bounty , as out of his very spoyls and gains of warre ( for we read of no other lands or gains he had ) to build a synagogue for gods worship ; which the elders of the jews , and christ too , approved as a worthy act , and a sufficient inducement for our saviour to go with him and cure his servant . o that all our centurions who have souldiers under them , and exceed or equal him in command , would imitate and equal this gospel centurion , in his pious munificence in building , in stead of contriving how to deface temples , churches , synagogues , to abolish tithes , ingrosse church lands and livings into their own hands ; then should they receive as large encomiums of the reality and transcendency of their faith , piety , charity from men , as he did from our saviour , and the elders of the jews , for building this new synagogue . i shall only adde , for our souldiers , officers better information ; that from this example of abraham , approved in the new testament , both divines , councils , canonists , and casuists , have unanimously resolved , that souldiers ought to pay personal tithes to ministers out of their very militia , pay , and spoyls of warr. this was * st. augustines doctrine , de militia , de negotio , de artificio redde decimas : recited , practised , and long prescribed here in england , in the excerptions of egbert archbishop of yorke a about the year of our lord , . repeated , confirmed by gratian in his decrees , causa . qu. . f. , ; by all the canonists , glossers on his text : by angelus de clavasio , in his summa angelica , tit. decima : by hostiensis , summa rosella , and other summists , casuists , in their titles of tithes , and ratifyed by the synod of lingon , an. . apud bochellum , decret : ecclesiae gallicanae , lib. . tit. . c. . p. . this many excellent christian commanders , officers , souldiers have in several ages performed , as histories record . i shall ( for brevity ) instance but in one domestick example , and that a memorable one , king william the first ( whom we usually style the conqueror , though he never claimed the crown by conquest , but b only by the last will , testament and donation of king edward the confessor in his life-time , with the assent of his nobles ( who was educated with , preserved by him , during his exile and seclusion from the crown by the danish usurpers ) and as cousin and heir to edward the confessor , as he stiled himself in the very c title of his laws : he having vanquished and slain the perjured vsurper harold ( who set the crown upon his own head , and made himself king without any title or due election , against his solemn oath to duke william , made to him in normandy , which he pretended to be forced ; ) in d thankfulnesse to god for this his victory , whereby he gained possession of the crown ; out of the spoyls and gains of his warr , erected a magnificent church and abbey , to the glory of god and st. martin ( which he called de bello , or battel abbey ) in that very place where harold was slain , and this battel fought ; which likewise he endowed with large possessions , tithes and most ample privileges by his charter , and therein offered up to god his sword , and the royal robe which he ware the day of his coronation , there reserved as a monument as well of his piety as victory . after which this pretended conqueror e in the fourth year of his reign by the counsel of his barons , through all the counties of england caused . men of the most noble , wise and skilfullest in the law , to be summoned out of every shire , that he might learn their laws and customs from them ; and gave them this oath , that proceeding in a right path , without declining to the right hand or the left , to the best of their power , they should make known to him the customs and sanctions of their lawes , pretermitting nothing , adding nothing , and altering nothing in them by prevarication : which they accordingly performing ; and king william intending to alter the law only in one particular according to the lawes of norway , from whence he and his normans descended ; all the barons and grand english enquest who presented him their laws on oath , being much grieved at it , unanimously besought him , that he would permit them to enjoy their proper laws and antient customs under which their fathers lived , and themselves had been born and educated , because they deemed it very hard for them to receive unknown lawes , and to judge of those things they knew not , importunately beseeching him for the soul of k. edward ( who had granted to him the crown and kingdom after his death , and whose lawes they were ) that hee would not compell them to persevere under the lawes of any foreiners , but their own country laws alone . wherefore the king taking advice , consented to the request of his barons , confirming all their lawes and customs in parliament without any alteration or diminution , as they presented them . whereof this is the very first law concerning the preservation of the churches rights , and scholars from rapine . f every clergy-man , and likewise all scholars , and all their goods and possessions , wheresoever they are , shall enjoy the peace of god and of holy church , free from all forfeiture , and seisure ; and if any shall lay hands on that which mother church shall require , let him restore that which hee shall take away , and likewise one hundred shillings in the name of a forfeiture , if it be from an abbey , or church of religion ; and twenty shillings if it be from a mother parish church ; and ten shillings if it be from a chapel . after g which follow . other lawes concerning the churches peace and privileges ; and then these two laws concerning tithes . of the tithes of the church . of all corn the tenth sheaf is given to god , and therefore to be paid . if any shall have a herd of mares , let him pay the tenth colt ; he who shall have only one or two , let him pay a penny for every colt . likewise he who shall have many kine , let him pay the tenth calf ; he who shall have but one or two , let him pay a penny for every calf : and he who shall make cheese , let him give the tenth to god , and if he shall make none , the milk every tenth day : likewise the tenth lamb , the tenth fleece , the tenth butter , the tenth pig. of bees and all lesser tithes . in like manner also of bees , the tenth of the profit , and also of wood , of meadows , waters and mills , and ponds , and fishings , and copses , and orchards , and gardens , and negotiations ; ( wherein souldiery and all other professions are included ) and all things which the lord shall give the tenth part is to be tendred to him who giveth the nine parts together with the tenth : and he who shall detain it shall be compelled to render it by the iustice of the bishop , and of the king if néed be : for these things st. augustine hath preached and taught , and these things are granted by the kings and barons and people . but afterward ( let our tith-oppugners , and detainers mark who is their original tutor ) by the instinct of the devil , many have detained tithes ; and rich negligent priests do not care to prosecute them , because they had sufficient necessaries for their life ; for in many places now there are three or four churches , where at that time was only one , and so they began to be diminished . this is that william the conquerour , whom our officers , souldiers ( with the levellers and anabaptists ) most virulently reproach and rail against in their discourses , and silly ignorant scurrilous (h) pamphlets , for an invader , vsurper , robber , tyrant and subverter of our native lawes and liberties , &c. when as he claimed the crown onely by gist and title , confirmed all our antient lawes , liberties , civil and ecclesiastical , without any alteration or diminution ; put never a noble man but one , or other person to death who rebelled or took up armes against him all his reign , but such who were actually slain in battel ; was the gallantest souldier , and best justiciary of any in his age ( as some (i) historians then living attest ) and not only much devoted to religion , daily frequenting the church both morning and evening , but likewise very industrious and bountiful to promote it ; honouring and richly endowing the clergy that lived according to their rule and profession , but being very rough and hard-hearted to the licentious and scandalous , degrading his own vnkle malgerius archbishop of rhoan , and many english bishops for their dissolute lives ; founding no lesse then three churches and abbies of chief note ( whereof that of battel . was one ) endowing them with large poss●ssions and privileges ( according to the piety of those times ) out of his conquests , and confirming all the clergies tithes , rights , privileges by the recited lawes . if those officers , souldiers , who now pretend themselves conquerors , and us a conquered ( or rather cousened ) nation , will really imitate his justice , piety , bounty , in these recited particulars ; no man will thenceforth bestow on them such reproachfull termes , of invaders , vsurpers , robbers , tyrants , subverters of our lawes , liberties , &c. as they do usually on this first norman king ; but repute them real saints , patrons of religion , ministers and the church , yea sons of faithfull abraham , who gave the tenth of the spoyls of war to god ; whose example , with all the rest here recited , in justice , conscience rather oblige them to imitate his and their footsteps ( as the premises ; evidence ) than to spoyl our ministers , churches of their tithes and materials . and so much in answer of the first evasion , respecting our army-officers and souldiers only . the second evasion of abrahams precedent , is made by country farmers , tradesmen , and their advocates : who allege , that abraham gave the tenth only of his spoyls gained in war to m●lchisedec , but not of his corn , wine , cattel and other goods ; therefore this example bindes only souldiers to pay personal , but not them or any others to pay any such predial , mixt or personal tithes , as now they do by coercive lawes and ordinances , against law and gospel , as they pretend . to which i answer , . that the expresse words of moses , gen. . . are : and he gave him tithes of all. which being universal , not confined by him to the spoyls taken in war , must be taken and intended in the * largest sense , that is , of all his substance , or encrease , as well as of the spoyls then won : as the syriack and arabick translations , solomon jarchi and others interpret it . . the apostle reciting the history heb. . . useth the self-same general expression : to whom also abraham gave a tenth part of all , without restraining it to the spoyls of war : which must be intended in the best and liberalest sense , for tithes of all his substance and gain , being mentioned both to expresse his piety and bounty . true it is , the apostle in the . verse useth this expression , vnto whom the patriarch abraham gave the tenth of the spoyls ; which * some oppugners of tithes , would have to be the interpretation of the two former universal phrases ; tithes of all : but the spoyls being not abrahams all , nor in truth any part thereof , he refusing so much as to take a thred or shoe-latchet thereof to his own use , gen. . , . and the word all , being not so much as once used in the latter clause , which recites , he gave the tenth of the ( not all the ) spoyls ; and the two first general expressions , necessarily including in them the tenth of the spoyls ; i conceive the latter expression is rather a particular specification of one memorable thing he paid tithes of in a new case not formerly happening , even of the spoyls taken in this first battel he ever waged , or any other that we read of ( included in the general ) rather than a full comprehensive exposition of all that is or was intended , by the tenth , or tithes of all , in the two precedent texts . . it is most probable , that abraham paid tithes of all his own substance to melchisedec , as well as of the spoyls ; there being the self-same , if not a stronger ground , for him to pay tithes of all his other goods , encrease , as of these casual spoyls , out of which no constant maintenance could be raised for any pastor , or minister , as there might be out of the tithes of his cattel and substance encreasing every year . now tithes being intended for the priests and ministers constant maintenance by god and man , and this precedent of abraham , recorded for that end ; we cannot without an absurdity , restrain his paying tithes of all , only to the spoyls then , and then only unexpectedly gained from the enemy by abraham , and restored by him to the right owners , the tenths of them only excepted ; but , of the tithes of all his substance principally , whence a constant livelihood for the priest could only arise , and of the spoyls of warr only by reason of his occasional meeting of abraham then returning from the warrs , and blessing him at that time . . this president of his , was in all probability , the ground of gods appointing tithes , by a special law , for all the priests and levites maintenance amongst the israelites , abrahams posterity , and the apostle intimates as much , heb. . , , , , , &c. that they receive tithes of their brethren in the same manner by the law , as melchisedec did of their father abraham . now they received tithes of corn , wine , oyl , cattel , all sorts of herbs and fruits , for their standing maintenance and inheritance too ; num. . , to the end , levit . . , , , , . deut. . , . therefore it is most probable , if not infallible , that abraham paid tithes to melchisedec of all those things which the levites and priests afterward received from their brethren , not of the spoyls alone , out of which no certain maintenance could be raised , not specified therefore in those general precepts concerning tithes . . the apostle arguing the natural justice of ministers maintenance , rom. . . and cor. . . useth this expression . if we have sowen unto you spiritual things ( in the plural number ) is it a great matter if we shall reap your carnal things , in the plural number too ; and such things as seem commonly to grow and multiply ; as the word reap imports . and gal. . . he useth this general precept , let him that is taught in the word , communicate to him that teacheth in all good things : therefore to restrain abrahams giving tithes of all , only to the spoyls , and not to all his carnal and good things , is a very improper exposition , dissonant from the scope and sense of these parallel texts , which seem aptly to interpret it . . the very pharisee in the gospel , boasting of his justice and piety , used this expression , parallel with that of abraham , luke . . i give tithes of all that i possesse ; and to confine abrahams giving tithes of all , to the tithes only of the spoils , and not to extend it , with the pharisee , to all that he poss●ssed besides , is to make this father of the faithful , less righteous , liberal , devout than this hypocritical pharisie . . that which seems to put all our of question , is the parallel text of gen. . , , . where jacob after his travelling vision , makes this vow to god , even before the levitical law for tithes ; if god will be with me , so that i come again to my fathers house in peace ; then shall the lord be my god , and this stone which i have set up for a pillar , shall be gods house : and of all that thou shalt give me , i will surely ( without diminution , substraction , or failing ) give the tenth unto thée : whence should godly jacob take his pattern of surely giving the tenth of all ( not of spoils alone ) that god should give him , unto god , but from the practice of his grand-father abraham , who gave m●lchisedec the tenth of all god gave him , as well as of the spoils ? honouring god with all his substance and increase : according to that precept of solomon ( having relation to his practice and this vow of jacobs ) prov. . . honour the lord with thy substance , and with the first fruits of all thy increase . and so much in refutation of this second evasion , which some armed men much urge . the third objection , which some would make fatal to all tithes under the gospel , is from the close of the apostles forecited words : heb. . . for the priesthood being changed , there is also a necessity of a change of the law , &c. from whence william thorp , ( one of our martyrs ) thus reasoned against tithes , and others now , k saint paul saith , that tithes were given in the old law to levites and to priests , that came of the linage of levi ; but our priests come not of the linage of levi , but of juda , to which juda no tithes were promised to be given : and therefore paul saith , since the priesthood is changed from the generation of levi to juda , its necessary that changing also be made of the law : so that priests must live now without tithes and other dues that they claim , following christ and his apostles in wilfull poverty , as they have given them example . i answer . that the apostle in this , and the three following chapters , concludes and proves by sundry arguments , that the levitical priesthood and the ceremonial law , given the people under moses ( the l covenant of this priesthood ) were both changed and abolished by christ , and his everlasting priesthood , shadowed to us by them ; and by consequence the maintenance of the levitical priests by sacrifices offered by them at the altar , by first fruits and tithes themselves , so far as they were ceremonial , prescribed by the ceremonial law , for the maintenance only of these abolished levitical priests and levites ; which is all this scripture proves , when pressed to the uttermost . but can any rational man hence conclude , the levitical priesthood , the ceremonial law , and all the tithes , maintenance due to the jewish priests and levites by this law are abolished by christ , a priest for ever after after the order of melchisedec , to whom tithes were due and paid by abraham , before this law and priesthood instituted : therefore all tithes , maintenance due and paid to melchisedec , ( and in him to christ , and the ministers of the gospel under him ) are eternally abolished as jewish and levitical ? surely this is a mad inference , both besides and against this text ; from which all orthodox protestant commentators , as well as papist and jesuites , conclude the quite contrary , and learned nicholas hemingius in his commentary on it , p. . thus determines , it is subjoyned , that melchisedec received tithes from abraham , which tithes abraham verily gave of his own accord , following without doubt the custome of conquerors ( let our conquering officers , souldiers observe and do the like ) who were wont to consecrate the tenths of their spoyls to their gods , or to give them to their priests . but this collation of tithes , * multo meliori jure christo sacerdoti debetur ; is due by much better right to christ our priest ; who as he gives all things to us out of méer bounty ; ita vicissim illi non solum decimas , verum etiam omnia nostra debemus ; so we owe to him again , not only tithes ▪ but likewise all we have . whether the objectors or hemingius speak most gospel divinity and reason from this text , let every christians conscience judge . . the apostles words concerning the change and abrogation of the ceremonial law , have no coherence with or relation to the precedent discourse , concerning payment of tithes to melchisedec and the levites ; recited only to prove the dignity and excellency of melchisedecs priesthood above aarons ; and of the levitical priests and levites above their brethren , from whom they received tithes . the force of the argument , reduced into a logical form , being thus . he who receives tithes for the execution of his priestly office , is better and greater tha● he who payes tithes ; but the patriarch abraham himself , the very father of the faithfull , and prince of the fathers , paid tithes to melchisedec ; and likewise the levitical priests ( then in his loyns ) in and by him ; who yet receive tithe of their brethren , but not of their father abraham or melchisedec : therefore melchisedec is better and greater than abraham and them , and they than their brethren who paid them tithes . and by consequence , christ being a priest for ever after the order of melchisedec , who was but a type of him , must be better and greater than abraham , ( joh. . , . ) or the levitical priests , or than melchisdec himself , who did but typifie him . this excellency and precedency of christs priesthood before aarons , he proves by other arguments drawn from melchisedec , not pertinent to our present businesse ; after which he largely argues the change and abolition of the levitical law and priesthood by christ , ( a theam of a different nature from the former ) to which the objected words refer ; therefore the total and final abolishing of all tithes , to which these words have no relation , can never be inforced from them ; being ratifyed by the former clause , as appurtenances to christs everlasting priesthood , as well as to melchisedecs ; therefore as due to his ministers under the gospel , as to any priests and levites under the law , which were likewise types of christ , the true high priest , expiring at and by his death . . the priests and levites under the law had cities , glebes , houses setled on them for their habitation , families , cattel , as well as tithes , by the ceremonial law , for their better maintenance , accommodation ; and that in a large proportion , lev. . , , . num. . , to . josh . . , to . chr. . , to the end , ch . . , to . chr. . , . ezra . . neh. . . ch . . . ezec. . , to . ch . . , , to . if then this text proves the total abolition of all our ministers tithes , root and branch , as jewish and antichristian ; as some impudent scriblers and petitioners against them , now affirm : it likewise proves the abolition of all their rectories , glebes , houses likewise , as well as of their tithes , as jewish and antichristian : and so ministers of the gospel now shall neither have tithes nor glebes to support and feed them , their families and cattel ; nor yet so much as an house wherein to lodge and put their heads ; and be inforced to complain as our saviour once did of his forlorn condition , mat. . . and luke . . the foxes have holes , and the birds of the air have nests , but the son of man hath not where to lay his head . a condition to which some jesuitical , anabaptistical , athiestical , uncharitable beasts of prey , worse than any foxes or harpies , would now gladly reduce all our faithful ministers and their families , whiles some of them lord it , and lodge themselves in our kings , princes , bishops , deans and chapters new acquired royal palaces , and not content therewith , would spoyl all our ministers of their more contemptible glebes , rectories , tithes , to enrich themselves and their posterities , and make our ministers like our saviour in his voluntary poverty , both houseless and harborless . they may with as much justice ( like the hard-hearted bloudy jews , souldiers ) even m crucifie them on crosses , between such thieves as themselves , to make them like our saviour , even in his voluntary sufferings ; as part their glebes , lands , rectories , tithes among them , and cast lots upon their vestures , even before their death , when as the souldiers who crucified our saviour , did not part his raiment amongst them , nor cast lots on his vesture till after his crucifixion by them , * there being as much authority , conscience , law , justice , reason for the one , as other : seeing none by any laws can lose or forfeit their lands , livelihood , but such who first forfeit their lives to publick justice . . the israelites were enjoyned by the levitical law , deut. . , , . ch . . , , , . to harbour , entertain the priests , and levites within their gates , and not to forsake them so long as they should live upon the earth , but freely to permit and invite them to come , eat , drink , feast , rejoyce , and be satisfied with them and their families before the lord ; as well as to pay them tithes . but this law ( as they argue ) is now abolished by christ with the priesthood ; therefore when our ministers are stript of all their tithes , glebes , rectories , houses , maintenance by our new reformadoes ; it must be jewish and antichristian for them or any others so much as to lodge , entertain , or give them any thing to eat or drink within their gates , or so much as to admit , invite them to a feast , or meal within their houses ; and then they , with all theirs and other poor widows and orphans , must all presently starve , perish by * john cannes and these uncharitable mens new gospel light and charity , because hospitality and alms to such , are levitical and jewish , abolished with the levitical law and priesthood ; which abrogated all charity and humanity out of the world , as well as out of these tithe-oppugners hearts , if this their objection be orthodox gospel truth . . meer freewill offerings and voluntary unconstrained contributions were prescribed by the levitical and judicial law , both for and towards the maintenance of gods priests , and worship ; for the building , and repairing of the tabernacle , and of the temple afterwards , towards which the godly kings , princes , generals , captains , officers , souldiers , and all the pious people of god contributed most joyfully , liberally , and in such abundance upon all occasions , that they gave far more than was sufficient ; and thereupon were prohibited by special proclamation to give or bring any more ( as in the case of materials of all sorts , for the building and furniture of the tabernacle of the congregation ) and of the temple , towards which many heathen kings , and their officers contributed freely , and the very captive jews , exod. . , to . chap. . , to . levit. . , , . chap. . . num. . . chap. . . chap. . , to the end , chron. . , , . chap. . , to . chap. . , to . chron. . , to . chap. . . chap. . , to . . chap. . , to . ezra . throughout , chap. . . chap. . . chap. . , . therefore ministers under the gospel must not be maintained , nor churches , houses for publick assemblies built or repaired by free-will offerings , and voluntary contributions , being levitical , jewish , and so abandoned ; and if not by tithes nor forced rates as they allege , then the ministers must utterly starve , and all our churches fall to sudden ruine , as many now do . and is this gospel saintship and christianity ? . the priests and levites by the levitical law , were prescribed what wives they should marry , and what not , levit. . , to the . will it therefore follow ( as the papist votaries conclude ) therefore ministers of the gospel must not marry ? and must all now be divorced from their wives , as well as from their tithes and benefices , because the levitical law is abolished , and priests wives jewish , as well as their tithes ? our beastly ranters then may seize upon ministers wives , as well as the brutish anabaptists , quakers , swordmen on their tithes and glebes . . the seventh day sabbath it self , though prescribed by a n moral law , was in some sense ceremonial , and enjoyned by o ceremonial laws too ; therefore ( as p most affirm ) abrogated by christs death as jewish , as to the precise seventh day from the creation , and the jewish rigidities , sacrifices on it ; will it therefore follow , that it is jewish and unlawfull for christians under the gospel , to observe the lords day every week , and render unto god the same weekly proportion of time for publike worship , as the jews did , or to keep any publike fasts , or feasts to god at all , as the jews by the levitical law were bound to doe ? if so , then farewell all lords-dayes , fasts , feasts , publike assemblies for gods worship , all ministers , churches , ( and god himself together with them ) as well as tithes ; let gain , money be the only deities henceforth adored among us , as the motto stamped upon our new state-coyn , god with us , and most mens practices sadly proclaim , to gods dishonour , and religions intolerable defamation . these answers , i presume , will for ever satisfie or silence these objectors , with q john canne , their new champion , who may now discern their grosse mistake ; and learn this for a general certain truth : that whatever is not in its own nature and original , meerly jewish and ceremonial , but hath a kind of natural justice , equity , conveniency , morality or necessity in it , and had a divine original , institution before the ceremonial law given , or the levitical priesthood instituted ; that thing , though afterwards given , limited , prescribed to the levitical priests or israelites by a general or special levitical law abrogated by christ , doth neither cease its being , nor become unlawfull in its primitive , or proper use unto christian ministers or believers under the gospel , by the abolishing of the levitical law and priesthood ; but may , and must necessarily be continued , practised , perpetuated among them without the least sin , scandal , or judaism , according to its own primitive institution , or natural , necessary , divine , moral or civil use ; else bread , meat , drink , wives , clothes , religious sabbaths , fasts , feasts , edifices and assemblies for gods publick worship , houses for hospitality , charity to ministers , to poor distressed saints , people , ( yea reading , prayer , preaching of the word of god , magistracy and government it self ) should be utterly unlawfull unto christian ministers and people , as well as tithes ; because given , prescribed to be used by the levitical priests and jews , by the levitical law. therefore seeing meat , drink , food , raiment , lands , houses , and a competent proportion of all worldly necessaries , are as simply needfull for the preservation , subsistence of the ministers of the gospel and their families now under the gospel , as for the priests , levites before and under the law , or all other sorts of men in the world , who cannot live without them : and seeing tithes , lands , houses , both before and under the law , were originally given to and setled by god and men upon priests and levites first , and ministers since , not as meer types , shadows , ceremonies , but as a just , fitting , convenient recompence of their labour , necessary maintenance , livelihood , habitation , residence for them and their families , to provide them meat , drink , books , clothes , and other necessaries to live by : why our ministers under the gospel should not still enjoy them in this kind and nature , without the least shadow of judaism , as well as melchisedec before the law , or the jewish priests and levites under it , or their predecessors before them , even from the first settlement of the gospel amongst us , or as well as any other men , or the objectors do enjoy their lands , goods , houses , and the other nine parts of their tithes encrease , for their livelihood and subsistence , as well as the jews without any sin or judaism , transcends my capacity to apprehend , and the ability of all armed or unarmed enemies of tithes or glebes to demonstrate from scripture , law , reason , or the objected abused text , over-long insisted on , to clear it from all ignorant or wilfull wrestings . and so much for the payment of tithes by * abraham , and vowing them by jacob , before the law , to justifie the lawfulnesse and continuance of them under the gospel , against all cavilling exceptions . secondly , i shall make good the proposition from the maintenance of the priests and levites by glebes , tithes , and oblations under the law , urged as the strongest , if not only reason against them : and thus form my argument . that which god himself , who is infinitely and only wife , just , holy , did by his special laws , edicts institute , prescribe , as the most expedient , equal , fit , just , rational , convenient maintenance of all other for his own priests and levites to receive and take from his own people ( when once setled in the promised land ) for the execution of their function ; must questionlesse be , not only a lawfull , but the most expedient , equal , fit , just , rational , convenient maintenance of all other for his ministers of the gospel to receive , and take from all believing christians in any setled christian kingdome , state , church under the gospel ; especially , if he hath neither positively prohibited this kind and way of maintenance , nor specially prescribed any other way or kind of setled maintenance for them in and by the gospel . but god himself , who is infinitely and r only wise , just , holy , did by his special laws , edicts institute , prescribe houses , lands , glebes , t●thes , and oblations , as the most expedient , equal , fitting , just , rational , convenient maintenance of all other for his own priests and levites to receive and take from his own people , when once setled in the promised land , for the execution of their functions ; and hath neither positively prohibited this kind or way of maintenance , nor specially prescribed any other way or kind of setled maintenance for them in and by the gospel . ergo , it must questionlesse be , not only a lawfull , but the most expedient , equal , fit , just , rational , convenient maintenance of all other for his ministers of the gospel from all believing christians in any setled kingdome , state , church under the gospel . the major , i suppose no rational christian can or will deny , except he thinks himself ( as king alphonso , the proud atheistical self-conceited astronomer did ) more wise , just , holy than god himself ; and abler to carve out a more expedient , equal , just , fitting , rational , convenient maintenance for gods priests , levites , ministers , than god himself hath done ; and dare bid defiance to this gospel precept , eph. . . be ye therefore followers of god as dear children : the minor i shall thus confirm in order . . that god did by special laws , edicts institute and prescribe cities , suburbs , lands , houses , glebes , for the priests and levites habitation , and the better maintenance of them and their cattel , and that in a liberal proportion , is apparent by num. . from v. , to . where we find recorded ; that the lord spake unto moses in the plain of moab , by jordan near jericho , saying ; command the children of israel that they give unto the levites of the inheritances of their possession , cities to dwell in ; and ye shall give also unto the levites suburbs for their cities round about them . and the cities they shall have to dwell in , and the suburbs of them , shall be for their cattel , and for their goods , and for all their beasts . and the suburbs of the cities which ye shall give unto the levites , shall reach from the wall of the city and outward , a thousand cubits round about . and ye shall measure from without the city on the east side two thousand cubits , and on the south side two thousand cubits , and on the west side two thousand cubits , and on the north side two thousand cubits , and the city shall be in the midst ; this shall be to them the suburbs of the cities . and among the cities which ye shall give unto the levites , there shall be six cities for refuge , which ye shall appoint for the manslayer , that he may fly thither ; and to them ye shall adde forty and two cities . so all the cities which ye shall give to the levites shall be forty and eight cities , them shall ye give with their suburbs . and the cities which ye shall give shall be of the poss●ssion of the children of israel : from them that have many , ye shall give many ; and from them that have few , ye shall give few : everyone shall give of his cities , according to his inheritance which he inheriteth . this positive just command of god was given before the israelites entrance into , and conquest of the land of canaan : and this further positive law then likewise made against the sale and alienation of these glebes and possessions . levit. . , , . notwithstanding the cities of the levites , and the houses of the cities of their possession , may the levites redeem at any time , which others could not doe , v. , . and if a man purchase of the levites , then the house that was sold and the city of his possession shall go out in the year of jubile ; for the houses of the levites are their possession among the children of israel : but the field of the suburbs of their city may not be sold , for it is their perpetual possession . after this , when the land of canaan was fully conquered by the israelites and divided amongst the tribes by bounds and limits , we read , josh . . , to . then came near the heads of the fathers of the levites unto eleazer the priest , and unto joshua the son of nun , and unto the heads of the tribes of the children of israel ; and they spake unto them at shilo in the land of canaan , saying , the lord commanded by the hand of moses ( in the text forecited ) to give us cities to dwell in with the suburbs thereof for our cattel . and the children of israel gave unto the levites , at the commandment of the lord ( mark it all enemies of our ministers , rectories , lands , glebes , maintenance ) these cities and their suburbs . then follow the names and places of the cities allotted to the levites proportionably out of every tribe , and how they were divided by lot amongst them : which you may read in the text it self , over large to transcribe . after which ensues this cloze of the story , v. . , . and the children of israel gave by lot unto the levites these cities and their suburbs , as the lord commanded by the hand of moses , all the cities of the levites within the possession of the children of israel , were forty and eight cities , with their suburbs : these cities were every one with their suburbs round about them : thus were all the cities . in chron : : we have a recital of the sons and families of levi , and the office of the priests and levites , with the names of all the cities and suburbs alloted to them out of every tribe , agreeing with this of joshua , where those who please may read them at their leisure . these fourty eight cities and their suburbs ( as some conceive ) amounted to the tenth , or at least twelfth part of the cities and land of canaan ; the priests and levites according to their number , enjoying in proportion as large a share of the promised land , as any of the other tribes , for their habitation and glebes : besides their tithes , first-fruits , offerings and other dues . all which ( as ſ dr. george downham , and t mr. samuel purchas observe ) amounted to a far greater proportion for the maintenance of that small tribe , than all the bishopricks , deaneries , benefices , cathedral and college lands , revenues , glebes , tithes , and whatsoever ecclesiastical profits , endowments of the clergy , and scholars in our whole kingdom and nation . after this , when the temple of jerusalem was built , where the priests and levites were to wait in their several courses successively , by davids appointment ( chron. chap. , to chap. . chron. . , . chap. . . and ch . , . ch . . . chap. . . chap. . . levit. . , , . ) they had houses , chambers , lodgings provided for them at jerusalem , near the temple , ( where some of them constantly dwelt and attended , ) and likewise for the tithes , first-fruits and oblations brought thither to them , chron. . , to . chap. . . chap. . , , . chron. , to . ezra . . neh. . , , . chap. . , , . chap. . , to . ezech : . , to . chap. . , to . chap. . . chap. . . these cities , suburbs , habitations , chambers , the priests and levits constantly enjoyed without interruption til the revolt of the ten tribes from rehoboam : when jeroboam the usurper erected two golden calves in dan and bethel , to keep the people from going up to jerusalem to worship god there , out of carnal fear and suspition ; saying in his heart , now shall the kingdom return to the house of david , if the people go up to jerusalem to do sacrifice in the house of the lord there , then shall the heart of this people turn back again to their lord , even unto rehoboam king of judah , and they shall kill me , and go again to rehoboam king of iudah , kings . , to . and then we read chron. . , , , . the priests and the levites that were in all israel resorted to rehoboam out of all their coasts ; for the levites left their suburbs and their possessions , and came to judah and jerusalem ; for jeroboam and his sons had cast them out from executing the priests office unto the lord ; and he ordained him priests for the high places , u of the lowest of the people , and for the devils , and the calves which he had made : which king abijah warring with him after his fathers death , ( when he claimed the right of his usurped crown , ) thus objected against him , and the revolted tribes , chr : . , to . hear me thou jeroboam and all israel : ought ye not to know that the lord god of israel gave the kingdom over israel to david for ever , even to him and to his sons by a covenant of salt ? yet jeroboam the son of nebat , the servant of solomon , the son of david , is risen up , and hath rebelled against his lord. and there are gathered unto him vain men , the children of belial , and have strengthened themselves against rehoboam the son of solomon , when rehoboam was young and tender-hearted , and could not withstand him . and now ye think to withstand the kingdom of the lord , in the hand of the sons of david , and ye be a great multitude , and there be with you golden calves , which jeroboam made you for gods. have ye not cast out the priests of the lord , the sons of aaron , and the levites , and have made you priests after the manner of the nations of other lands ; so that whosoever cometh to consecrate himself , with a young bullock and seven rams , the same may be a priest of them that are no gods ? but as for us the lord is our god , and we have not forsaken him ; and the priests which minister unto the lord are the sons of aaron , and the levites wait upon their business : &c. for we keep the charge of the lord our god ; but ye have forsaken him : and behold god himself is with us for our captain , and his priests with sounding trumpets , to cry allarum against you . the issue of this atheistical state-policy , and sacrilegious deprivation , spoliation of gods priests and levites of their suburbs , possessions , ministry by jeroboam and his sons , is very remarkable . it brought ruine upon his whole army , though double the number of abijah his host , of whom they had a great advantage by an ambushment ; god himself smiting him and his host , so that they fled before judah ; and abijah and his people sl●w them with a great slaughter , so that there fell down slain of israel five hundred thousand chosen men , chron. . , to . the greatest slaughter in one battel , that ever we read of in sacred or prophane stories before or since . . it brought captivity on his adherents and people , who were brought under at that time , pursued , and had their cities taken and plundered , v. , . . it drew down this misery and fatal judgement on himself , v. . neither did jeroboam recover strength again in the dayes of abijah ; and the lord strook him and he died . . it became sin to the house of jeroboam , even to cut it off , and to destroy it from the face of the earth , kings . , . . it made all the succeeding kings of israel professed idolaters , and most of them bloudy murtherers , vsurpers , persecutors , and produced perpetual successive civil warrs between judah and israel , kings . . chap. . , , , . chron. . , to . . it brought final captivity , ruine and desolation in conclusion to the whole kingdom of israel , and the ten revolting tribes , kings . , , , . where this sad story is recorded . and the lord rejected all the seed of israel , and afflicted them , and delivered them into the hand of spoilers , until he had cast them out of his sight . for he rent israel from the house of david . and they made jeroboam the son of nebat king , ( of which god thus complains , hos . . . they have set up kings , but not by me , they have made princes and i knew it not ) and jeroboam drave israel from following the lord , and made them sin a great sin : for the children of israel walked in all the sins of jeroboam which he did , they departed not from them , untill the lord removed israel out of his sight , as he had said by all his servants the prophets : so was israel carried away out of their own land to assyria , till this day ; when as the kingdom of judah x continued above . years after in davids royal posterity , enjoying gods priests , levites , prophets and ordinances , till their captivity for their sins , in mocking , abusing his messengers , prophets , and despising his words , chron. . , . and then y after . years captivity , they were restored again to their country , re-edified jerusalem and the temple ; and with them , the priests , and levites returning from bondage , were restored likewise to their cities and glebes ( of which the kings of judah never deprived them , as jeroboam and his sons , and the kings of israel , who were all idolaters did ) whence thus we read ezra . . . so the priests and the levites , and the singers , and the porters , the nethinims dwelt in their cities , and all israel in their cities ; thus seconded , neh. . , . all the levites in the holy city were . and the residue of israel , of the priests and levites , were in all the cities of judah , every man in his inheritance ; and neh. . . the levites and singers that did the work , were fled every one to his field . in the prophecie of ezechiel ( written during the jews captivity , in the land of the chaldeans , ezech. . , , . ) prophesying of the re-edifiing of the temple , the dimensions and whole fabrick thereof , ch . . , to . we find frequent mention of holy chambers therein , provided for the priests , and their vestments . and ch . . , to . god enjoyns the israelites by this prophet upon their restitution to their own land , when they should divide it by lot for an inheritance ; that they should offer an holy portion of the land , an oblation unto the lord : the length thereof twenty five thousand reeds ; and the breadth ten thousand ; this shall be holy in all the borders thereof round about . of this there shall be for the sanctuary reeds in length , with in breadth square round about ; and fifty cubits round about for the suburbs thereof . then he addes : the holy portion of the land shall be for the priests , the ministers of the sanctuary ; which shall come neer to minister unto the lord , and it shall be a place for their houses , and an holy place for the sanctuary . and the . of length , and . of breadth , shall also the levites , the ministers of the house have for themselves , for a possession for twenty chambers . in the . chapter verse . to the end of the prophecy , he writes of the bounds and division of the land of canaan ( after their restitution ) according to their several tribes , in relation to and imitation of the bounds and division of it formerly made and recited by joshua : out of which there was a special portion reserved for the priests and levites , as there was in joshua's division forecited : thus expressed , ezeck . . , to . and by the border of judah , from the east side unto the west side , shall be the offering , which they shall offer of . reeds in breadth , and in length as one of the other parts , from the east side unto the west side ; and the sanctuary shall be in the midst of it : the oblation ye shall offer unto the lord , shall be of . in length , and in breadth : and for them , even for the priests shall be this holy oblation ; toward the north . in length , and toward the west . in breadth ; and toward the east in breadth , and toward the south in length , and the sanctuary of the lord shall be in the midst thereof . it shall be for the priests , that are sanctified , of the sons of zadock , which have kept my charge , which went not astray , when the children of israel went astray ( after jeroboam and his calves ) as the levites went astray . and this oblation of the land that is offered , shall be unto them a thing most holy by the border of the levites . and over against the border of the priests , the levites shall have . in length , and . in breadth : all the length shall be , and the breadth . reeds . and they shall not sell of it , neither exchange , nor alienate the first fruits of the land , for it is holy unto the lord. from all these scriptures ( here recited at large for the readers fuller satisfaction , conviction , and ease in turning to them ) these conclusions undeniably arise , . that the priests and levits had by gods special command , precept ( oft repeated ) both cities , houses , suburbs , lands , glebes designed to & setled on them by their brethren out of all the other tribes of israel , for their habitation , and the keeping , feeding of their cattel , goods , beasts , and that in a very large and bountifull proportion . and likewise necessary , convenient houses , chambers , lodgings neer the temple , when first built , and when re-edified afterwards ; which refutes the common errour of those ignorant simpletons and illiterate new-lights , who from numb . . . deut. . . chap. . , . the priests , the levites , and all the tribe of levi shall have no part nor inheritance with israel : they shall eat the offerings of the lord made by fire , and his inheritance : therefore shall they have no inheritance among their brethren , the lord is their inheritance , as he hath said unto them ; conclude : that the priests and levites amongst the israelites , had no cities , houses , lands , suburbs or possessions of their own belonging to their office , and were expresly forbidden by god to receive or enjoy any among their brethren : and hence inferr ; that ministers of the gospel ought not to enjoy any rectories , houses , lands or glebes : whereas all the forecited scriptures directly record the contrary ; and the meaning of these seeming repugnant texts , is only this ; z that they should have no inheritance amongst their brethren in such sort and manner as they had ; set out altogether in one parcel by joshua and the rest who divided the land amongst the tribes by lot ( which would have hindred them from their duties ) but only a subsequent assignment of certain cities , houses and suburbs seattered and divided one from another , in and out of every tribes inheritance ; that so they might perform their offices with more ease , and be alwayes ready at hand in every tribe , to teach and instruct the people upon all occasions . . that the inheritance of the cities , houses and suburbs , which they enjoyed , were not reputed their own proper inheritance , though they enjoyed the possession and profits thereof , but gods inheritance , as a thing devoted and dedicated unto god himself ; and therefore stiled by ezekiel , an oblation unto god , and an holy portion ; as a histories , divines , common , civil and canon lawyers stile all our rectories , church-lands , and glebes , with the charters that first setled them , being given and consecrated , deo et ecclesiae , an oblation unto god , and the church . . that these endowments and glebes of theirs , were called , reputed gods own portion and inheritance . . because given by his special command and appointment by all the tribes . . because originally consecrated , devoted to god and to his priests and ministers onely in gods right , for his sake . . because given to promote gods worship , service , glory , and for an habitation , support to gods own priests and levites , imployed wholly in his immediate service . . that they were expresly prohibited to be sold , exchanged , or alienated by the priests , levites , or any others ; because they were reserved by and given unto god himself , as an holy portion and oblation , and to the priests and levites for a perpetual poss●ssion , in regard of the perception of the profits , the inheritance of them residing only in god himself : therfore not possible to be justly and lawfully sold , exchanged , or alienated by , the priests , levites , or any other mortal powers whatsoever , who could claim no power , right , property , or disposing interest in or over them against gods own soveraign and sacred title . . that these cities , suburbs , glebes , were ratably set out in and by every tribe in an equal proportion , according to the multitude or paucity of their cities , as a tenth of their cities and lands , to which their cities and suburbs amounted as some probably conceive . and yet besides these cities , there were houses and schools of prophets , and prophets children ( in nature of our universities ) in bethel and in jericho , kings . , , , , to . chap. . , , , . which were none of these cities . . that none of the kings and princes of judah , ( though many of them were idolatrous , wicked , and put to great extremities to raise monies to pay their armies , and tributes to forein invaders and conquerors ) did yet ever attempt to sell or alienate the cities , suburbs , or revenues of the priests and levites to maintain their warrs , or pay publike debts or tributes , though king asa , jehoash , hezekiah ( by way of loan ) made bold with the silver and gold in the treasure of the lords house , in cases of publike extremity ( which might be , and was afterwards re-paid , ) kings . . cap. . . chron. . . yea , the scripture expresly records , that in the great famine in aegypt , when all others sold their lands , to buy bread , to king pharaoh , only the lands of the priests bought he not : for the priests had a portion assigned them of pharaoh , and did eat their portion which pharaoh gave them ; wherefore they sold not their lands gen. . , to . . that the idolatrous usurper jeroboam , out of a carnal fear and policy to keep the people from returning to their rightfull soveraign , and establish the crown on himself and his posterity , was the first man we read of , and his idolatrous sons and successors after him , who cast out gods priests and levites out of their offices , and then , out of their cities , suburbs and possessions , which he enforced them to desert , ( though we read not , that they sold them to maintain their warrs or pay soldiers arrears ; ) who thereupon repaired to jerusalem , to rehoboam the right heir , and after them out of all the tribes of israel , such as set their hearts to seek the lord god of israel , came to jerusalem to enjoy gods ordinances , & strengthned rehoboam and his kingdom , against this persecuting usurper , chron. . , to . . that this his casting out of the priests and levites from their offices and p●ss●ssions , making priests of the lowest of the people , and suffering every one that would to consecrate himself a priest without a lawfull call , is objected against jeroboam by abijah as a very high crime , and provocation against god ; and the maintaining , encouraging of gods lawfull priests and levites in their offices and setled possessions , alleged by him as a certain argument of gods presence with him , and so with any other king and people , and of victory , successe in conclusion , against sacrilegious usurpers . . that when gods lawfull priests and levites are deprived of their glebes and possessions , we must presently expect , a base , contemptible , time-serving , idolatrous , ignorant priestood , jeroboams golden calves , with their new feasts and sacrifices , and a universal inundation of idolatry , wickedness , prophanness to ensue , with all the forementioned calamities , which befell ieroboams army , adherents , subjects , person , family , kingdom : which the lord now set home on all our hearts , that we may never be guilty of such a sacrilegious , ruinating , god-provoking , realm-destroying , church-subverting practice in the least degree , as some would now perswade us to , in stripping our ministers of all their glebes , rectories , tithes and setled maintenance at one blow , ( which even pharaoh himself , and godly joseph refused to do towards the very idolatrous priests of aegypt , allowing them an extraordinary daily portion to preserve their lands from sale in time of famine , gen. . , . ) whereto they have as lawfull , as just , as divine a right , as these priests and levites had to their cities , suburbs , houses and possessions , as i shall prove anon . . that god only wise did by special laws and edicts institute and prescribe tithes , as the most expedient , equitable , fitting , just , rational , convenient maintenance and reward of all other for his own priests and levites , is undeniably proved by levit : . , , . deut : . , , , . ch . . . to the end , ch . . , , , , . num : . , to . neh : . , , . ch . . . ch . . , , , , prov : . . chron : . , to . mal : . , , . luke . . heb : . , , . which texts all may read at leisure , and are needlesse to transcribe at large , this truth being confessed by all opposites to tithes , who hence condemn them as iewish and ceremonial rites now abolished . that which i shall observe from them , is briefly this . . that the payment of tithes to the priests and levites , was positively prescribed by gods special precepts and commands , frequently recited , inculcated . . that gods own people were specially commanded by him to pay * tithes of the seed and increase of all their land ; of all corn , wine , oyl , fruits , yea , of garden-herbs , seeds , matth. . . luke . . and likewise of the increase of all their cattel , herds , flocks . . that god gave these tithes , and all the tenth in israel , to the priests and levites for an inheritance , as a due reward for their service which they serve , even the service of the tabernacle of the congregation ; which all israelites else were prohibited to come into , or do service in ; lest they bear their sin and dye ; and this was to be a statute for ever throughout their generations . nam . . , , , , . heb. . . . that all the tithes of the land , seed , fruit , herbs , flocks , and of whatsoever annually increased , or passed under the rod , are expressely said to be the lords , to be holy unto the lord , consecrated unto the lord , and an heave-offering unto the lord , which he gave unto the priests and levites , for an inheritance , levit. . , , , , , . num. . . chron. . . . that god enjoyned all the israelites , truly to tithe all the tithes of their increase , and not to eat or embesle , detain or exchange any of it , especially for the worse , deut. . . ch . . . levit. . . mal. . . and if any man would redeem his tithes , he was to give the full price , and adde a fifth part over to it . levit. . . . that all these tithes were to be brought by the people to the places and treasuries appointed for them , ( the corn ready threshed , winnowed , and the wine , oyl , fruits in vessels ) at the peoples own costs , without any trouble to the priests or levites ; and if the place , whither they were to be brought , was too far off , then , that they called the second tithe , ought to be turned into money by the owner , and the money paid to the priests and levites in lieu thereof . deut. . , , . ch . . , to . ch . . , , . chron. . , , , . neh. . , . ch . . . ch . . , to . amos . . mal. . . . that the detaining of these tithes from the priests and levites , was a great sin and sacrilegious robbing of god himself , accompanied with his curse , and punished with * scarcity , barrenness , devouring locusts , blasting of the fruits of the earth , &c. mal. . , , . ( a place worthy the saddest consideration of all tithe-oppugners and substracters ) will a man rob god , yet ye have robbed me : but ye say , wherein have we robbed thee ? in tithes and offerings : ( here is the sacrilegious sin ; pray mark the just deserved punishment : ) ye are cursed with a curse : for ye have robbed me , even this whole nation ( what this curse was , follows ) the devourer , ( that is , devouring creatures , as locusts , caterpillars , palmer-worms , canker-worms , and the like ) did destroy the fruits of their ground , their vines did cast their fruit before their times in the field ; and god blasted and destroyed all their corn and fruits with blasting and mildew , and hail ; amos . . joel . . yea , they sowed much and brought in little ; they did eat , but had not enough ; they did drink , but yet were not satisfied with drink : they did cloth themselves , but there was no warmth : and he that earneth wages , earneth it to put it into a bag with holes . they looked for much , and lo it came to little , and when they brought it home , god did blow upon it ; yea , the heaven over them was stayed from dew , and the earth was stayed from her fruits , and god called for a drought upon the land , and upon the mountains , and upon the corn , and upon the new wine , and upon the oyl , and upon that the ground brought forth , and upon men and cattel , and upon all the labour of their hands : when one came to an heap of . measures , there were but ten ; when one came to the presse-fat for to draw out fifty vessels , there were but twenty ; and the wine , and the figs , and pomegranate tree , and the olive tree , did not bring forth , hag. . , , to . ch . . , , . o that all hard-hearted , covetous , hypocritical , atheistical detainers of , and declaimers against tithes , and ministers just setled maintenance , would lay these judgements and curses of god close unto their hearts , that so they might therby be reclaimed from their robbery and sacrilege against god , and prevent , divert these judgements , curses from themselves , and our whole nation , which they have cause to fear , and will doubtlesse feell them to their smart and losse , if they rob god and our ministers of their tithes , and maintenance in such sort as many now strenuously endeavour ! . that god himself annexed many gracious * promises of giving abundance of all earthly and spiritual blessings , to the chearfull , conscientious due payment of tithes to his priests and levites for their maintenance ; which i shall recite , to excite men chearfully to this practice now , deut. . , , , . thou shalt truly tithe all the increase of thy seed , corn , wine , oyl , herds , flocks ; that thou mayest learn to fear the lord thy god alwayes ; and that the lord thy god may bless thee in all the work of thy hand , which thou doest , deut. . , , , . when thou hast made an end of tithing all the tithes of thine increase , the third year , which is the year of tithing , and hast given it unto the levite , &c. then thou shalt say before the lord thy god , i have brought away the hallowed things out of mine house , and also have given them unto the levite , &c. according to all thy commandements which thou hast commanded me , i have not transgressed thy commandements , neither have i forgotten them . i have not eaten thereof in my mourning , neither have i taken away ought thereof for my vnclean vse , nor given ought thereof for the dead , but i have hearkened to the voice of the lord my god , and have done according to all that thou hast commmanded me : look down from thy holy habitation from heaven , and bless thy people israel , and the land which thou hast given us , a land that floweth with milk and honey . such a conscientious true payment of tithes as this , according to all gods commandements , without the least substraction or embezlement , emboldens , enables every particular man to make such a prayer to god , as this , not only for himself , but for the whole land ; brings a blessing upon himself and all the realm , yea makes it a land flowing with milk and honey , and abundance of all rich blessings . besides , we read in chr. . , to . that when godly king hezekiah had destroyed idolatry , and appointed the courses of the priests , and levites after their courses , every man according to his service , he brought ●urings , and peace-offerings , to minister and to give thanks , and to praise in all the gates of the tents of the lord : he appointed also the kings portion of his substance for the burnt-offerings , for the morning and evening ; for the sabbaths , the new moons , and set feasts ; moreover he commanded the people that dwelt in jerusalem , to give the portion of the priests and the levites , that they might be encouraged in the law of the lord. and as soon as the commandement came abroad , the children of israel brought in abundance , the first fruits of corn , wine , oyl and honey , and of all the encrease of the field , and the tithes of all things brought they in abundance . and concerning the children of israel and judah , that dwelt in the cities of judah , they also brought in the tithes of oxen , and sheep , and the tithe of holy things , which were dedicated unto the lord their god , and laid them by heaps . in the third moneth they began to lay the foundation of the heaps , and finished them in the seventh moneth , and when hezekiah and the princes came and saw the heaps , they blessed the lord and his people israel . then hezekiah questioned with the priests and levites concerning the heaps ; and azariah the chief priest of the house of zadok , answered him , and said ; since the people began to bring the offerings into the house of the lord ; we have had enough to eat , and have left plenty : ( but did the people grow poor thereby ? no , but much richer than before ) for the lord hath blessed his people , and that which is left , is this great store . then hezekiah commanded to prepare chambers ( or store-houses ) in the house of the lord , and they prepared them , and brought in the offerings and the tithes , and the dedicate things faithfully ; over which cononiah the levite was ruler . how different was this practice of all the people and godly saints in those daies , in a chearfull bringing in their tithes and oblations to the priests and levites in abundance for their encouragement ; which caused king hezekiah , his princes , the priests , levites , and god himself to bless them ; from the sacrilegious practice of tith-detaining hypocritical saints , anabaptists , quakers , sectaries and christians in our daies : who shall never receive such a blessing as this from god or good men , but their curses ? if these texts and presidents will not move such hard-hearted men , let them consider both this ●●●cept and promise of god , prov. . , . honour the lord with thy substance , and with the first fruits of thine encrease : so shall thy barns be filled with plenty , and thy press shall burst out with new wine : and mal : . , , , . return unto me , and i will return unto you , saith the lord of hosts , but ye said wherein shall we return ? bring ye all the tithes into the store-house , that there may be meat in mine house , and prove me now herewith , saith the lord of hosts , if i will not open you the windows of heaven , and * powr you out a blessing , that there shall not be room enough to receive it ; and i will rebuke the devourer for your sakes , and he shall not destroy the fruits of your ground , neither shall your vine cast her fruit , before her time in the field , saith the lord of hosts : and all nations shall call you blessed , for ye shall be a delight some land , saith the lord of hosts . what christians heart ( though never so covetous and worldly ) should not these sacred promises of god , ( the last of them recorded in the last of all the books and prophets in the old testament , they being not meerly levitical and judaical , but of eternal verity , use , and evangelical too ) excite and engage , most cheerfully to pay and bring in all their tithes and dues to gods ministers now , as well as to the priests and levites heretofore ; christ himself having made like parallel promises of blessings and rewards for relieving and maintaining his ministers in the gospel , mat. . , , . mark . . phil. . , ? . that the due payment of tithes to gods priests and levites , was a great encouragement to them in the law of the lord , and in the diligent execution of their duties , chron. . , , , . and on the contrary , the with-holding of them from them , a great discouragement , necessitating them to desert their duties and functions : witnesse that memorable text , neh. . , , . and i perceived that the portions of the levites had not been given them ( mark the consequence ) for the levites and the singers , that did the work were fled every one to his field . then contended i with the rulers , and said ; why is the house of god forsaken ? and i gathered them together , and set them in their place . then brought all judah the tithes of the corn , and the new wine , and the oyl unto their treasuries ; and i made treasurers over the treasuries , shelemiah the priest , and zadock the scribe , and of the levites pedajah , &c. for they were counted faithfull ; and their office was to distribute unto their brethren . which reason still continuing under the gospel in relation to the ministers and preachers thereof ( heb : . , . phil. . , to . ) is a strong argument to engage all true christians desiring the propagation of the gospel , and a painfull able ministry duly to pay their tithes and portions to them . . that it was the bounden duty , care of * religious kings and governours amongst gods own people , when the people were backwards to pay and bring their tithes and duties to the priests and levites , to command , and enforce them to do it by special covenants and oaths , sealed , subscribed by the princes and people ( neh. . . cap. . , to the end ) and likewise by positive ordinances , injunctions , and to be earnest and zealous in it , as the two last recited examples of king hezekiah and nehemiah evidence ; and this was so far from being an unjust , oppressive action and grievance to the people , as some now term it ; that it is recorded by god himself for their honour , and others imitation , yea so well-pleasing unto god , that nehemiah clozeth up the history of his acting in this kind , with this memorable addresse and prayer to god himself , neh. . remember me , o my god , concerning this , and wipe not out the good déeds that i have done for the house of my god , and for the offices thereof . and will not god remember their ill deeds in wrath and vengeance , who shall do the contrary to what he and king hezekiah acted , in robbing god and his ministers of their tithes and setled dues ? b st. hierom with others affirm : that the israelites had four sorts of tithes . . that which the people paid to the levites , being the tenth of every thing that was food for man , not so much as herbs excepted , and whatever received increase from the earth . . that which the levites paid to the priests , being the full tenth of their tithes . . that which they received for expences in their solemn feasts , when they went to the tabernacle or temple , whereof the owner and his family were to eat in those feasts as well as the levite , deut. . , . ch . . , . . the third years tithes , which were then laid up for the levites , and likewise for the stranger , the fatherlesse , the poor widdow within their gates , in the husbandmans own barns and store-houses , and not then carried to jerusalem , as the other tithes were . deut. . , . ch . . , . their first and second tithes every year ( as they affirm ) amounted to . in the hundred ; so as the husbandmans clear lay-chattel , the tithes first deducted , came but to eighty one bushels of corn , or eighty one pipes or tuns of wine , or oyl , in every hundred ; which considering the costs the husbandman was at in threshing and fanning the corn , barrelling up the wine and oyl , and carrying them to jerusalem , and the priests treasuries at their own costs , amounted to double the tithes we pay now and more ; besides the first fruits paid out of them in kind before the tithes ; their free-will offerings , sacrifices , oblations and other charges of gods worship prescribed by the levitical law , together with half a shekel every poll for the service of the tabernacle , exod. . , , . yet the israelites were obliged by god to pay all these tithes , which all the godly amongst them chearfully did without murmuring , notwithstanding every seventh year amongst them was sabbatical , and free from tillage , and the voluntary fruits of the earth then growing were to be for the poor , and the beasts of the field were to eat the rest , exod. . , . lev. . , &c. what would our anabaptists , quakers and tithe-oppugners have said and done , had they been born israelites , under the law , and clogged with so many tithes and expences , who now grumble at and refuse to pay half so much tithes as they constantly did , though they pay no first-fruits , sacrifices , and other costly oblations of several sorts to god , as the israelites did , besides all these tithes ? i fear their covetous , sacrilegious hard hearts would have induced them to cast off , not only gods priests and levites ( as now many of them do our ministers ) as superfluous creatures , but even all gods chargeable ordinances and levitical forms of worship , as intollerable grievances , oppressions , yea renounced god himself to save their purses , and turned atheists out-right : let them therefore reform this their sacrilegious tithe-detaining practices and opinions , lest whiles they pretend to avoid judaism , they prove worse than the very jews themselves ; yea worse than the very jewish pharisees , ( the worst of jewes ) who paid tithes even of rue , annis , mint , cumin , all other herbs , and of all they had . mat. . . luke . . cap. . . whose righteousness all christians righteousness must exceed by christs own verdict , else they shall never enter into the kingdom of heaven , mat. . . nay worse than the very idolatrous jewes under jeroboam and his successors , who paid their tithes duely even to the base idolatrous priests at bethel and gilgal , who waited on the service of the golden calves , and brought all the oblations to their very calves , which god reserved to his priests , levites , and himself , as is evident by amos . , . come ye to bethel and transgresse , at gilgal multiply transgression ; and bring your sacrifices every morning and your tithes after thrée years , and offer a sacrifice of thanksgiving with leaven , and proclaim and publish the free offerings , for this liketh you , o ye children of israel , saith the lord of hosts . let those pharisees , idolatrous jews and israelites practice then shame all our anabaptists , quakers , soldiers , sectaries , and other tith-oppugners now , lest they rise up in judgement and condemn them , at the last day . these forementioned cities , suburbs , houses , glebes , tithes , thus setled on the priests and levites for their habitation , maintenance and reward of their ministerial function , had nothing properly typical or ceremonial in them ; and being assigned to them by god himself only , for their necessary habitation and competent livelihood , may and ought to be continued , and imitated in a fitting proportion under the gospel , for the habitation , maintenance , livelihood , reward of the preachers of the gospel , who are to live by the gospel , as well as they did by the temple and altar , cor. . , . . there was another supplemental maintenance , besides these glebes and tithes , prescribed by god in the levitical law for the priests , which was properly ceremonial , levitical , and quite abolished with that priesthood by christs death ; and that was the priests share out of every meat-offering , made of fine flower , oyl and frankincense , unto the lord by the people ; a small part whereof the priests were to offer up to god upon the altar , and the remnant which was left , was to be aarons and his sons , with the breast and right shoulder of every peace-offering , offered by the people , called the wave-breast , and the heave-shoulder , given by god to the priest , who offered the bloud and fat of the peace-offering at the altar , together with the skin of every burnt-offering , levit : . , . chap. . , to . and , to . exod : . , , . chap. . . numb . . , . and from them that offered a sacrifice , whether it were ox or sheep , this was the priests dve likewise from the people ; they were to give unto the priest the shoulder and the two cheeks and the maw , by gods special appointment , deut : . . ezech : . , . which fee eli the high priests sons exceeding , and exacting more than was due by violence , it exceedingly provoked god , made men to abhor the sacrifice , of the lord , and proved the ruine of eli and his family , sam : . , to the end . these dues and fees of the priests serving onely at the altar , had no affinity with the forementioned glebes and tenths , belonging as well to the levites as priests , and therefore are distinctly prescribed by themselves . now for any to argue that tithes and glebes , which were no wayes properly ceremonial , levitical or typical , are quite abolished by christ , and incompatible with the gospel , because those meat-offerings , peace-offerings and sacrifices , ( which were meerly ceremonial and typical , and by consequence the fees due unto priests out of them ) are quite abolished by christ , the onely true * meat-offering , peace-offering and sacrifice for us unto god ; is a meer non sequitur , they being things of a different nature ; the one eternally abolished by christ , as the whole epistle to the hebrews testifies , but the other not , as the said very epistle attests , hebrews . , to . compared with cor : . , to . tim : . , . gal : . . and here i shall beat our sword-men and other tithe-oppugners with their own weapon . they tell us for an unquestionable gospel-truth ; that ministers of the gospel ought to have no certain or coercive maintenance , but only voluntary free-will-offerings , such as the people shall willingly give them without any law or constraint ( though their own unordained chaplains in the army and garrisons have constant pay each month out of the peoples purses , to whom they do not speak , and are not maintained by the souldiers free , but the people 's enforced monthly contributions ; which practice they should first reform , if repugnant to the gospel : ) now such maintenance as this , is more properly and purely levitical and ceremonial than tithes ; since all meat-offerings , peace-offerings and sacrifices , out of which the levitical priests were to have their share and maintenance , were only frée-will-offerings voluntarily offered to god , without any coercion , when they pleased , levit. . . ch . . . ch . . , , , . numb . . . ch . . . deut. . , . ch . . . ch . . . psal . . . ezra . . ch . . . chron. . . if then tithes , glebes , and all coercive , setled maintenance for ministers be abolished and unlawfull under the gospel , though not primarily , and purely levitical , but of divine , moral , and natural right , by the dictate of natural reason ; as tyndarus , rebuffus , and many others affirm in their treatises of tithes ; then much more must their maintenance by levitical free-will-offerings , oblations , and sacrifices be such ; being more purely levitical and ceremonial that tithes , as these instances manifest , and cor. . . heb. . , . and if ministers of the gospel must have neither a setled nor inforced maintenance , by glebes , tithes or otherwise , as some now plead , nor yet an uncertain one by voluntary free-will-offerings and contributions , they shall have no maintenance at all allowed them under the gospel ; whereas the priests of god under the law had both a certain setled maintenance , reward by glebes and tithes ; and likewise an arbitrary and uncertain , by their fees , dues out of the peoples free-will-offerings , and sacrifices ; and why ministers of the gospel may not have a like setled , coercive maintenance , both by glebes and tithes , and likewise an honorary super-additional reward according to their pains and merits , by the voluntary benevolences , and free-will-offerings of the people , as well as the priests under the law , or as well as servants and all publick officers , military or civil ; let their opposites render me a reason , when they are able ; the apostle resolving thus of ministers of the gospel in opposition to the preists under the law , heb. . . we have an altar , whereof they have no right to eat which serve the tabernacle ; which text compared with cor : . , . do ye not know , that they which minister about holy things , live of the things of the temple ; and they which wait at the altar , are partakers with the altar ? even so hath the lord ordained , that they which preach the gospel should live of the gospel ; and with phil. . . but i have all , and abound , and am full , having received from epaphroditus the things ( or voluntary contribution ) sent from you , an odour of a most swéet smell , a sacrifice acceptable well pleasing to god : will warrant this conclusion ; that as the gospel in these texts retains the old legal terms of altar and sacrifice , in a real evangelical sense , in relation both to the office and maintenance of the ministers of the gospel ; so christians under the gospel in the self same sense , may and ought to allow them the like setled maintenance by glebes , tithes , and likewise an additional reward by voluntary evangelical sacrifices and oblations for attending on the new gospel-altar , jesus christ , and preaching of his gospel , administring his sacraments to them , as the priests under the law received from the people , by gods own institution . . there was another additional way of maintenance for the priests under the law , both certain and considerable by gods special appointment ; even the first-born of man and unclean beasts , which were to be redeemed , at a set value given by god to the priests ; the firstlings of all their herds , beasts , flocks that were clean , payable in kind ; the first-fruits also of their ground , corn , wine , oyl , of all manner of trees , fruits , and likewise of their dough : which god peculiarly reserving and consecrating to himself as his own , and holy to himself ; did yet transferre them to his priests , and enjoyns the people to give and bring unto the priests , that they may cause the blessing of god to rest in the peoples houses ; as you may read at leisure , exod. . , . ch . . , . ch . . , . ch . . , , , . levit. . , . ch . . , . ch . . , , . n●m . . . deut. . . ch . . . ch . . . ch . . , . compared with num. . , to , kings . . chron. . . and neh. . , . ch . . . ch . . . prov. . . ezech. . . ch . . . ch . . . these first-fruits most hold to be meerly ceremonial and types of christ , the first-born of god , heb. . . psal . . . the first-fruits from the dead , cor. . , . and types of christians under the gospel , who are called a kind of first-fruits of his creatures , jam. . . yea the first-fruits unto god , and to the lamb , rev. . . therfore abolished by christ as ceremonial and levitical . but yet notwithstanding , seeing all true christians are and ought still to be even spiritual first-fruits unto god under the gospel ; to present themselves , their souls and bodies a living sacrifice , and oblation , holy , acceptable unto god through jesus christ ; in the first place , rom. . . cor. . , , , . to seek first the kingdom of god , mat. . . and then afterwards to be ready to consecrate not only themselves but all their goods and estates to god and his service , so far forth as there is occasion or necessity , acts . , , , . i cannot yet discern , but that all christians by a proportionable kind of gospel and natural equity , are still obliged to render a kind of first-fruits out of their estates , besides their tithes , for the maintenance and propagation of the gospel when and where there is occasion ; there being far more equity and gospel-justice for it , than that our ministers , out of their small , scarce competent , and many very incompetent livings , should pay the first-fruits and first years profits of their livings to the king or state ( as formerly they did unto the pope through papal vsurpation onely ) by the statutes of h. . c. . h. . c. . . & eliz. c. . and almost or above the tenth of all their livings to the souldiers ( amounting to treble their tenths to the king or pope ) without any grant at all by them or their proxies in the usual , legal , just , parliamental way , * against all their rights , privileges and our laws : the jewish priests and levites under the law being never burthened with such first-fruits or taxes , by their soveraigns , and exempted from them even by a heathen conqueror , ezra . . which those , who now endeavour to deprive them of their tithes , glebes , and yet exact both first-fruits , tenths and contributions from them , may do well to consider . having thus related at large , what a liberal , various , full , and competent maintenance god setled on his priests and levites under the law , by glebes , tithes , oblations , sacrifices , poll-money , first-fruits , besides the tenth and tribute out of the very spoyls of war formerly insisted on , i shall now apply it home to the ministers of , and christians under the gospel , in these short aphorisms . . ministers and preachers of the gospel inwardly qualified with sufficient gifts , graces , and lawfully called , ordained , are gods and christs own institution , and ministers , as well as priests and levites under the law. mat. . , , . ch . . , . luke . , , &c. ch . . , , . mark . , , &c. ch . . , . acts . , , , &c. ch . . . ch . . , , . ch . . , , . rom. . , , . cor. . , , , , , . ch . . , , , , . ephes . . , to . col. . . tim. . , . ch . . , , . ch . . , . tit. . , , . heb. . . jam. . , . thes . . . cor. . . cor. . . ch . . . . that their ministry and calling is far more honorable , glorious , necessary , beneficial to mens souls , than that of the priests and levites , under the law. cor. . , to . heb. . , to . . that it is far more painfull , laborious , than the ministery of the priests and levites under the law. acts . . cor. . , to . tim. . , , . tim. . . thes . . . pet. . . rom. . , . ch . . , . . that therefore there is as just , as competent , as full , as honorable and setled a maintenance , and as much honour , reverence , obedience , love , as great recompence due unto them , for their very work and calling sake from all christians under the gospel , as there was from gods people to the priests and levites under the law ; as i have already proved in the first proposition ; and that by divine institution , cor. . , . tim. . , , . from whence c hemingius ( with most orthodox protestant divines , i have seen besides , as well as papists and jesuites ) concludes thus . admoniantur igitur pii , quod iure divino ecclesiae ministris debeant stipendia ; that all the godly are to be admonished , that by divine right they owe wages to the ministers of the gospel . and if so , then . it follows inevitably , that there being no other setled way of maintenance particularly prescribed for them in or by the gospel ; and convenient houses , glebes for them , their families , and necessary cattel ; with tithes of the increase of the fruits of the earth , and cattel of all sorts , being as necessary , as requisite for the habitation , food , clothing , support of them , their families , ministry , and supply of all their necessaries with as little charge , trouble , * diversion from their studies , functions as may be , as for the priests and levites under the law : that godly christians , kings , states , parliaments , cannot pitch upon any equaller , fitter , juster , better , wiser , rationaller , convenienter , diviner way of maintenance for them , than that of necessary houses , rectories , glebes in every parish and tithes and oblations of all things needfull for food , raiment , hospitality , it being the constant standing setled maintenance which the most wise , just , and holy god himself invented , prescribed for his own priests and levites maintenance amongst his own people , when setled by him in the land of promise , and that which all setled christian empires , kingdoms , states , churches generally through the christian world have in all ages pitched upon , as most agreeable to gods will and word , under the gospel , which no ways repeals nor contradicts his own former prescriptions of this kinde in the old testament . . that the glebes , tithes of the priests and levites under the law , were reserved by god himself ( the supreme land-lord of all kingdoms , countries , nations , churches , people in the world , and the special god , lord , king , father , saviour , preserver of his own people ) as * a sacred , holy tribute , rent , portion , and homage due unto himself from poor creatures , servants , vassals ( who are no true proprietors , but only stewards and tenants at will of all the lands , goods , earthly blessings and poss●ssions they enjoy ; the earth being the lords , and the fulnesse thereof , and the corn , wine , cattel , fruits and earthly creatures we possess , not really ours , but gods own , chr : . , to . psal . . . psal . . . psal . . , , , . ezech : . , , . hos . . , . dan. . , . mat : . , . ) the use and possession of which tribute , he allotted to the priests and levites under the law for their maintenance , salary and reward of their labour in his service , for the advancement of his worship , glory , honour , and his peoples spiritual good : reserving the inheritance and right thereof alwayes to himself ; as the premises sufficiently evidence : now god himself to whom alone tithes and glebes were originally impropriated ; ( not to the levitical priesthood ) being unchangeable , without any variableness or shadow of turning , jam : . . psal : . , . mal : . . and jesus christ ( to whom tithes were first paid by abraham in the person of melchisedeck ) having an unchangeable priest-hood , and being a priest for ever after the order of melchisedeck , the same yesterday and to day and for ever , heb : . , , , . c. . . and all christians whatsoever under the gospel , being as much his absolute creatures , vassals , servants , stewards and tenants at will , as the israelites under the law ; and all their lands , goods , earthly blessings , corn , wine , cattel , wealth , imployments , his in right , and not their own , as well as theirs too ; why they should not all render to him the self-same sacred tribute , holy portion , rent , homage of glebes and tithes of all they have , as well as they ( though the levitical priesthood be abolished ) they being so specially reserved and consecrated to him●elf , for the support , maintenance , reward , encouragement of his faithfull ministers under the gospel , imployed in his service for his honour , glory , and their everlasting salvation ; let john canne , and all presumptuous peremptory tith-oppugners , answer me ; yea , this their soveraign land-lord and creator , if they can ; who will one day call them to a st●ict accompt , for detaining this due rent , tribute , homage from him , and may justly dispossesse and strip them naked of all they have for this their ingrate , contemptuous carriage towards him , as he hath done many of late , by fearful fires , blasts , droughts , and other judgments , as well as heretofore , mal. . , , . . that as the gospel it self succeeded the levitical law , baptism and the lords supper , circumcision and the passeover : so the * apostles and ministers of the gospel , succeed the priests and levites under the law in their ministerial function in the church of christ , by gods appointment : their ministry and office being both the same in substance ( even to worship , praise , serve , honour god according to his revealed word , will , and instruct , exhort , direct , guide his people in the way of salvation , and bring them to eternal glory ) though differing in some circumstances of lesser moment , abolished by christs death . it is therefore most reasonable , just , equitable , convenient , they shall receive , enjoy the like setled maintenance by glebes , tithes , oblations as their predecessors did , god having prescribed none other kinde of reward or subsistence for them in the gospel that any can shew me . it is usual in all kingdoms , states , nations , where there are any publick setled offices and officers , for any persons who succeed others in those offices , to enjoy the self-same salaries , houses , lands , fees , revenues as their predecessors lawfully received , unlesse there be some special laws to alter their stipends : this we see verified in all civil , military and ecclesiastical officers ; yea , in the times of greatest publick changes , revolutions that ever befell the nation , those whom most yet call judges , sheriffs , majors , generals , colonels , captains , governors of forts , registers , &c. though their commissions be altered in some things , and themselves in more , do yet receive the self-same salaries , pays , fees , maintenance annexed to their offices , as their lawfull predecessors did ; yea , to come closer home , all our protestant ministers , since the reformation of religion , have generally enjoyed the glebes and tithes ( as the parishioners enjoy , frequent the churches , possesse the houses , inheritances , ) which their popish predecessors did before them ; though the one of them ( just like the levitical abolished priests ) made it their chiefest businesse and part of their calling to say masse , and offer an unbloody sacrifice ( as they falsly termed it ) on their altars both for the quick and dead ; and the other , who succeed them , make it their principal work to preach the gospel , and administer the sacrament according to christs institution . since then the ministers of the gospel succeed the levitical , as well as the popish priests , as the gospel doth the law , and the christian sacraments the jewish ; and we , with all converted gentiles engraffed into jesus christ and the church of god , succeed the jews , who were broken off from their own olive tree , that we might be ingraffed in their places , who now partake of the root and fatnesse of their olive tree ; as the apostle resolves , rom. . , to . why the ministers of the gospel should not likewise succeed the levitical priests ( as well as the popish ) in the enjoyment of their setled maintenance by glebes , tithes , ( being not meerly ceremonial , as i have proved , nor yet so papal as bishops , deans , and churches lands , in which our anabaptists , army-officers , and tithe-oppugners will yet succeed them without any scruple ) and all believing gentiles , who succeed the believing israelites in gods church , succeed them likewise in the due and just maintenance of their ministers by tithes and glebes , reserved to and prescribed by that true , holy , just and righteous god , who is not only the god of the jews , but of the gentiles also , rom. . . let any rational christian now resolve his own conscience and mine , from grounds of scripture , reason or equity , if he can ; god having given us a land flowing with milk and honey , as fit , as able to render glebes and tithes of all things in kinde to his ministers , as he did unto the jews . it is a received maxim in our law , quod venit in loco alterius est de natura prioris . if this be gospel , as it hath been ever held both law and reason under the gospel ; i need adde no more to this aphorism , to prove the lawfullnesse and equity of our ministers glebes and tithes ( and their continuance as well for the future as heretofore ) by a divine right . . that all christian churches , and pious christians generally throughout the world , from the apostles dayes till now , have unanimously resolved , both in point of piety , justice , conscience , and right reason , that they are bound to consecrate and render unto god the self-same weekly portion of time for his publick worship , as the israelites and jews under the law were obliged to do ; to wit , one day in seven : though they differ in the circumstance only of the day , they observing the seventh day from the creation every week ( in memory of the creation , and gods rest thereon ) for their sabbath , prescribed by special laws ; and we the first day of every week in memorial of our saviours resurection thereon , by the general , moral equity of these laws warranted by apostolical practice only , without any special gospel-precept . let then the whole army of tithe-oppugners render me one dram of reason , or shadow of answer , if they canne , why all christian realms , churches , nations in the world , may not , should not by the self-same rule of piety , justice , equity , proportion continue and render the like proportion of glebes , tithes to god and his ministers under the gospel , as the jews did to him , his priests , and levites under the law ; as well as they render to him the self-same proportion of time for his weekly , publick service , and why payment of tithes , oblations under the gospel to god , ( who gives us both them and the residue of our estates , and encrease out of his own meer free grace ) for the maintenance of the ministers of the gospel , and support of his publick worship on the lords day , should be more judaical , vnchristian , antichristian , superstitious ( as canne and others stile it ) than the dedicating , appropriating of the lords day to gods publick worship , and honour , who hath given and allowed us the other six for our imployments ; when as he might have justly reserved the nine parts of our lands and goods to himself , had he pleased , instead onely of the tenth , as well as the six daies in lieu of the seventh , wherewith he is content ; which d divines usually urge to induce men to the more chearfull sanctification of the lords day , and some scriblers against tithes as well as others . * st. augustin in his . sermon de tempors , thus enforceth this very argument ; and let canne , and all his confederates , reply to it if they can . hear o indevout mortality : know , that all things thou possessest , receivest , are gods , and wilt thou not render to the creator of all things , that which is his own ? the lord god doth not want ; he requires not a reward , but honour , he exacts not any thing of thine , which thou shouldest reserve fund : he vouchsafes to demand , only the first-fruits , and tithe of things : ( which are his ) and doest thou , o covetous wretch , deny him ? what wouldest thou doe , if reserving the nine parts to himself , he had left only the tenth to thee ? this he hath already done , when as thy harvest for want of rain , mildew , and thy vintage through hayl or frost is diminished into a ninth part : o covetous varlet , how dost thou reckon ? the nine parts are withdrawn from thee , because thou wouldest not give the tenth . it is most apparent , that thou hast not given them ; but yet god hath exacted them . for this is the most just custom of the lord , that if thou wilt not give the tenth to him , he will recall the nine , and leave only a tenth part to thee . what if god should say unto thee : man is mine whom i have made ; the earth is mine which thou tillest ; the seeds are mine which thou sowest ; the cattel are mine which thou weariest ; the showrs , and the rain , and the gales of wind are mine ; the heat of the sun is also mine . and seeing all the elements by which the seed , fruits do live and grow are mine , and thou only lendest thy hand , thou deservest only a tenth . but because almighty god feeds , deals most liberally with us , he hath given a most ample gift and reward to him that laboureth , challenging the tenth only to himself , and pardoning all the rest to us . and wilt thou then ungratefully and perfideously deprive him of it , when the year is ended , and the crop reaped ? if any shall presume to doe so , let them read what followes in that sermon , and then sleep quietly if they can . . that all christians under the gospel are bound in justice , equity , con●cience to give their hired servants and labourers their due and deserved wages , and not to detain it from them , even under the gospel , and that by vertue of gods command recorded in the levitical and judicial law : levit : . . deut. . , . approved in the gospel , col. . . and to allow their beasts , oxen that plow and tread out their corn , straw and provender , without muzling up their mouthes , by vertue of a like precept recorded , deut : . . ( twice repeated and urged by the apostle in the new testament , to prove the lawfullnesse of ministers maintenance under the gospel : cor : . , , . tim : . . ) and that without the least suspition of judaism or antichristianism ; therefore they may , and are also bound in justice , equity , conscience , not only to settle glebes upon , but likewise to pay tithes to the ministers of the gospel , as a due wages , hire , reward for their labour in the ministry , as well as the jews did to their priests and levite● , without the least tincture of judaism or antichristianism : since christ himself in the gospel expresly resolvs , mat. . . luke . . and tim. . . that ministers being labourers are worthy of their m●at , hire , and a competent maintenance suitable to their pains and function ; as well as any other hired servants or labourers in the fields , or as our labouring oxen or horses are of straw and provender . . we read it recorded , sam. . , , . that this would be the manner of the king that should reign over the j●ws , that amongst other things , he will take the tenth of your seed , and of your vineyards ; and the tenth of your sheep , and give them to his officers and servants ; in imitation whereof , the kings of england in antient parliaments , and of late times have usually demanded and received by grant in parliament , a d●cime or tenth of the goods and estates of their subjects for their supplies , and likewise a tenth of their merchandise exported and imported for tonnage and poundage , as our parliament records , histories , and rastal in his abridgement of statutes , tithes , taxes and tenths , attest . if then our lawfull kings , princes and governours under the gospel , may justly demand and receive by grant in parliament , the tenth of all our goods , corn , wooll , sheep , estates , merchandise , for their necessary supplies , and the defence of the kingdom ; and some who are no kings , and have engaged against kingship as tyrannical , do the like , without a parliament , taking ( beyond the presidents of the worst of all our kings ) not only a tenth of all our estates , but a double or treble tenth of all mens yearly revenues , estates , & of ministers tithes besides , for the maintenance of themselves and the army , without the guilt of iudaism , antichristian tyranny , oppression ▪ or superstition ; why our faithfull ministers may not likewise demand , receive , enjoy their glebes and tithes , not only granted , but confirmed to them by our ancestors in successive parliaments , from the first planting of the gospel in this nation till the reformation , by all our protestant parliaments since the reformation , and by sundry ordinances in the very last parliament , ( to which some now in highest power gave their cordial votes ) for the preaching , propagating of the gospel , and saving of mens souls , without the like brand of judaism and anti-christianism , let e john canne resolve me when he can ; who most falsly , scandalously , unchristianly brands both the last and all protestant parliaments confirming tithes , for popish , idolatrous parliaments , acting against the lord jesus , and our ministry , for an antichristian ministry ; who certainly was in his cannes or cups , when he writ and published such palpable , scandalous untruths , to the dishonour of our church , parliaments , nation , religion : but such cretians are alwayes lyars , evil beasts , slow bellies : wherefore they need a sharp rebuke , that they may be sound in the saith , tit : . , . he might have done better to excite those to whom he dedicates his pamphlet against those popish priest , monks , friars , jesuits , sent from the pope and rome into england of late , to root out our ministry , and their maintenance , as most opposite to antichristianism , his papal soveraignty and errors , under the notion of anabaptists , dipped jews , gifted brethren , new lights , seekers . but against these he hath not one word ; and why so ? because the dominican and franciscan freers , ( as * mr. selden relates in his history of tithes ) were the first , who made it a gainfull doctrine to teach laymen , that they were not bound to pay their tithes to their ministers , as to whom by any law of god that portion belonged , teaching them to be due only as alms , or as what ex debito charitatis , not ex debito justitiae was to be dispensed ; by this doctrine the mendicams especially often got them to themselves ( like the old * eustathians ) as alms to be arbitrarily disposed of to such as took any spiritual labour , as also made their own detaining of them in lands , out of which they were parochially due , to séem lesse wrongfull . they possessing the people with an opinion ; ( to gain them from the secular priests to themselves ) that the command of tithes was not moral but ceremonial , and not to be performed by constraint of conscience , to the minister : and that out of whatsoever ( lands ) at least was given to any of the four orders of fréers mendicants ( as now to anabaptists and quakers their disciples ) no tithe was in conscience to be deduced for the minister ; as he proves out of the * council of vienna held an. . ‖ pope innocent the th , and richard archbishop of armagh in defens . curatorum : alex. l. . consil . . and william r●ssel a franciscan freer his doctrine condemned in the convocation of the clergie anno h. . as haeretical , and publikely recanted by him at pauls cross as such ; that tithes ( especially personal ) fall not under divine precept , at least that they should be paid to the parochial curate as a due unto him of right , unlesse there were a custom to the contrary ; but that every one might lawfully give them to pious uses at their pleasure ; whereupon these n●w masters and preaching freers , preaching and teaching thus against the old and n●w testament ; were enjoyned by * several councils and synods in their sermons to exhort , inform , and instruct the people without any fraud , to pay their tithes faithfully to their ministers , as dve by the lawes of god and the church , under pain of being deprived of the power of absolving the people from their sins . therefore john cannes , with his confederate anabaptists and quakers new doctrines , invectives , petitions against our ministers tithes , derived from these old and new franciscan mendicant freers now swarming amongst them , is far more truly , really antichristian , than our ministers and their tithes , of which more in its due place . . that god in the levitical and judicial law prescribed laws for warr , and souldiers in the wars , deut. . throughout , and amongst others , v. , , . it shall be , when ye come nigh unto the battel , that the priest shall approach and speak unto the people , and shall say unto them ( for their encouragement ) hear o israel , you approach this day unto battel against your enemies ; let not your hearts faint , fear not , and do not tremble , neither be ye terrified because of them , for the lord your god is he that goeth with you against your enemies to save you . after which , v. . &c. the officers are commanded to make proclamation , that every man , who was fearfull and faint-hearted should go and return to his house , lest they should discourage their brethren ; that they should proclaim peace to every city they came nigh , before they besieged or stormed it ; and if they won it by force , the souldiers should take the spoil thereof unto themselves , and eat the spoil of their enemies , which the lord their god had given them . and by another levitical law the priests were thus enjoyned by god , to pray for , and bless his people , num : . , . &c. on this wise ye shall blesse the children of israel , saying to them ; the lord bless thee and keep thee ; the lord make his face shine upon thee , and be gracious unto thee ; the lord lift up his countenance upon thee , and give thee peace : and they shall put my name upon the children of israel , and i will bless them . if then it be neither jewish nor antichristian , nor superstitious , nor unlawfull for ministers of the gospel to encourage christian souldiers going to battel in the self same manner and form , or to bless them and the people in these very levitical words , as f iohn canne , and all anabaptistical , independent chaplains of the army ( and mr. peters especially ) will grant , who have frequently used the self same or like encouragements and exhortations to the army , receiving good , constant pay for their pains . and if it be neither jewish nor antichristian , nor unchristian for our saintlike officers and soldiers under the gospel , to make like proclamation to cowardly persons , or to proclaim peace to cities , and garisons , ere they besiege or storm them , and if obstinat and won by force to take the spoil and plunder of such cities , enemies to themselves , and eat therof , which i am certain all our officers , soldiers , and their anabaptistical tithe-oppugning chaplains will grant and subscribe to , though thus prescribed by the levitical law , abolished ( as they say ) by jesus christ : then questionless our ministers of the gospel may still receive and enjoy their glebes , tithes , oblations , by like reason , without the least guilt or reproach of judaism or antichristianism , though prescribed to the levitical priests and levites , by the levitical law ; else john canne and others of his fraternity ( professing themselves the only ministers of the gospel , and rejecting all others as antichristian ) must give over their chaplains places in the army , navy , garrisons , and no more encourage nor accompany any soldiers in the wars , or bless the people as aforesaid ; because it was a part of the levitical priests office ( who were also to blow the trumpets in the wars , num. . , to . josh . . . &c. ) prescribed by an abolished levitical law . . that all israelites , jews , both priests and people , were by the levitical law frequently commanded inviolably to perform , keep , pay , execute the solemn oaths , vows , covenants they made to god or men , and no wayes to infringe them , or prevaricate in them , levit. . . num. . , . cap. . , to . deut. . cap. . , , . josh . . , , . cap. . , to . cap. . , to the end . and among other things , we finde their tithes ( vowed to god by jacob , gen. . , , . ) coupled with their vows , as things devoted by them to god by * vow , as well as reserved by law : deut. . . yea , all the jews were obliged by a solemn covenant to bring , pay their first fruits and tithes to god , his priests and l●vites , nen. . , to . will or dare john canne then , or any other tithe-leniers averr , that it is both j●wish , antichristian , unlawfull for ministers and christians under the gospel , in●iolably to observe and perform all those just , lawfull oathes , vows , covenants they have solemnly made to god and men , with hands listed up to heaven ( as some of their persidious horrid violations of them without blush or check of late seems to proclaim before god and all the world ) and to pay those tithes , dues to our ministers , which our ancestors and we by solemn vows and covenants too , have dedicated unto god and his ministers , and never intended by our covenant to abolish or diminish in the least degree , ( as canne perjuriously and absurdly asserts ) but to establish and perpetuate , as the late ordinances for tithes and a●gmentations made by the very prescribers and subscribers of the late solemn league and covenant ( which it seems john canne never took , though he presseth it on others , as his words many have sworn , who i hope will now observe it , import ) both at the time , and since the making , taking of the solemn league and covenant , with the assemblies exhortation for the better taking thereof , authorized by the late parliament , infallibly evidence ? if so ; john canne with his perfidious oath-vow-covenant-breaking , tithe-abjuring disciples must renounce that true and only god , they say they worship in greatest truth and sincerity ; as a jewish , unchristian , antichristian god likewise ( i speak it with reverence and horrour too , for their fuller conviction ) because he alwayes hath been , now is , and will be , a most true , faithfull , oath-observing , covenant-keeping , vow-performing god , who reputes his oathes , vows , covenants , a immutable things , and will never violate , falsifie , forget , or neglect them in the least degree , though made to sinfull , treacherous and perfidious men , psal . . , , , to . psal . . . neh. . . cap. . . psal . . , . isa . . . cap. . . jer. . , . luke . , . and chron. . , . ( a memorable text ) cor. . . whom all those , who own or challenge him to be their god , are peremptorily obliged to imitate herein , else they shall never enter into his holy hill , or dwell with him in his tabernacle , ps . . , , . psal . . , . rom. . , . tim. . . rev. . . and that in this very case of tithes . if not , then why should not tithes , glebes , oblations which our ancestors and wee have vowed and devoted to god , continue and still be paid under the gospel without superstition , sin , antichristianism or judaism , as well as other vows , oaths , and the religious observation of them ? upon these considerations all or most christian kingdoms , states , churches upon the very fi●st preaching and embracing of the gospel amongst them , not only edified churches , chapels for gods worship and publike assemblies , but likewise endowed the ministers thereof with convenient glebes , tithes , oblations , as e●sebius , socrates , scholasticus , theodoret , nicephorus , calistus , the c●ntury writers , baronius , spondanus , with other ecclesiastical historians , and hospinian de origine templorum , prove at large for forein parts ; and our own antientest annalists , with antiqu. ecclesiae britanicae , sir henry spelman conciliorum angl. tom. . and learned dr. vsher , in his britanicarum ecclesiarum antiquitates , manifest for our own nations and realms . now because john canne , out of his learned ignorance , hath newly published in his a second voice from the temple ( or ale-house rather , for which cannes are more proper ) that pope gregory the tenth was the first that ordained tithes to be paid to priests , in the year . and that the customs for paying tithes at this day , were setled upon the kingdom by the popes legates in provincial and synodal constitutions about the time of henry the third , and henry the fifth ; vouching thorp and ridley the civilian to prove it ; i shall give you a brief touch concerning the original of churches , glebes , tithes in this our iland . about the year of our lord . ( as our a historians record ) joseph of arimathea , who interred our saviour , with xi . more disciples , were sent into britain to preach the gospel by philip the apostle , in the raign of arviragus ; who arriving here were courteously entertained by this pagan king , and preached the gospel to him , and his people ; he perceiving the purity of their doctrine , and the holin●ss● of their conversation , gave them twelve hides of land in the isle of avalon ( since called glastenbury ) for to build a church and to support them , ( till this day called and known by the name of the twelve hides of glastenbury ) where they built the first church , erected for gods worship in this isl● , made of wattle and reed , and there continued together preaching the gospel , living upon this their glebe ( now of great value ) which was afterwards confirmed to them , and the ministers of the gospel the●e succeeding them , both by king marius and coilus , next successors to arviragus , whom they instructed in the christian religion , to which they w●re well aff●cted , albeit neither of them , nor arviragus himself proceeded so far as to be baptized , for fear of displeasing their pagan subjects ; though harding in his chronicle , chapter . ( against the stream of our other historians ) writes , that king arviragus himself was baptized by joseph of arimathea . after this b lucius king of britain being converted to the christian faith and baptized with his subjects and many other petty british kings by his example about the year of our lord . by faganus and damianus , sent to him at his earnest request by elutherius then bishop of rome ( long before pope or popery were there erected , or known in the world ) he upon the reception of the faith built and endowed churches throughout his dominions with glebes and tithes , to support the ministry , whence our antient poets thus write of him , lucius in christum credit , christoque dicatas ecclesias dotat , distinctas ordinat vrbes . many of our antient historians adde , that in his time there were flamins , and arch-flamins in britain endowed with great revenues for the service of their idol gods , to whom they had erected so many fair temples ; and that lucius after his conversion , turned these into bishopricks , and three arch-bishopricks , and purging these polluted temples from their idols and heathenish poll●tions , dedicated them to the service of the true god ; which sir henry spelman , bp. vsher , godwin , and the most judicious of our later antiquaries , justly reject as fabulous . after lucius , churches were here and in other places endowed with glebes , and bishops with rich lordly possessions by constantine the great : and about the year of christ . the christians being here and elswhere restored to peace , and freed from persecution by constantine , a began to build and repair those churches which dioclesian and other persecutors had rased to the ground , and to endow them with maintenance for the ministry . in succeeding times , the english saxons , who at their first arival ( being bloudy pagans ) cruelly wasted the british churches , and butchered their ministers , scholars , saints , being converted to the christian faith by augustine , sent hither for that purpose by pope gregory the first , ( who disclaimed that papal supremacy his successors since challenged ) aethelbert king of kent , and his saxons being baptised by augustine about the year of christ . thereupon they began to repair the old ruinated churches , and to build new throughout his dominions ; this b king turning his royal palace at canterbury , into the church of christ , and that city , the seat of his kingdom into a bishops see , and bestowing them on augustine who converted him and his subjects to christianity , whom he made archbishop of canterbury , and endowed wiih large possessions : not long after divers other saxon kings and their subjects being converted and baptized , built and endowed sundry other churches , both with glebes and possessions of good value , and likewise with tithes . and in anno . ‖ aethelwolf king of the west-saxons , considering the perillous times then fallen upon him and his realm , by reason of the burnings of the wars , the plunders of the goods , the devastations of the territories of his kingdom by the most cruel depredations of barbarous enemies , and pagan nations , and the manifold tribulations afflicting him and his people , even to their destruction ; he thereupon summoning a general council or parliament at winchester , in which himself , beorredus king of mercia , and edmund king of east-angles , with all the prelates and nobles of england , were present , did by their wholesom counsel , for redress of these evils , by his charter ( ratified in and by this council ) give the tenth part of all his own lands in perpetuitie to god and his servants , free and exempt from all secular services , and also from all royal tributes , and taxes , great and small , and from all military expedition , building of bridges , and guarding of castles ; that so they might the more diligently powr forth their prayers unto god for him without ceasing , who had in some part thus eased them of their servitude : from which grant of his , sir henry spelman conceives , the parsonage-house , rectory and glebes in every parish of his realm , had their original , though afterwards increased by the munificence of the patrons . and this shall suffice touching the true original and progresse of our churches , rectories and glebes , in the beginning of christianity , both amongst the britains and saxons of this realm . the first law i find yet extant amongst us , for the due payment of all kind of tithes ( in use and being as the law imports , before its promulgation ) was made in the * national council , ( or parliament ) at calchuth in the year of our lord . in the reigns of king oswald and king offa , who by the unanimous consent of all their princes , nobles , and senators , ( as well as prelates , ) present therein , made this memorable decree , touching the payment of tithes , as a right and duty , which they were bound to render to god himself , by his own sacred law , originally given to the israelites , which they deemed obligatory likewise unto them : cap. . ut decimae justè solvantur , usura , iniqua pondera & mensurae prohibeantur : thou shalt bring the tenth part of all thy corn ( or increase ) into the house of the lord thy god , as it is written in the law , ( viz. levit. . . numb . . , , &c. deut. . , . chap. . , . neh. . . not in the popish canons . ) again by the prophet ( not pope ) ( mal. . . &c. ) bring , saith he , all the tithes into the storehouse , that there may be meat in my house , and prove me now therewith , if i will not open the doors of heaven , and powr you out a blessing , that there shall not be room enough to receive it . and i will rebuke the devourer for you , which eats and corrupts the fruit of your grounds , and the vine shall be no more barren in the field , saith the lord. as the wiseman saith in the book of wisdom , ( not the pope ) no man can give any just alms of those things which he possesseth , unlesse he shall first separate to the lord that which from the beginning himself hath appointed to be rendred to him . and by this for the most part it happens , * that he who payes not tithes is reduced ( by gods justice ) to the tenth part of his former estate ; whereupon ( not by any command from the pope , or by his authority ) we command , even with an obtestation , that all be studious to give tithes of all things they poss●sse , quia speciale domini dei est , because it is the peculiar portion of the lord god : and let him live himself , and give alms , of the nine parts ; and we perswade him rather to doe it in secret , because it is written , when thou givest alms do not blow a trumpet before thee , matt. . . after which follow laws against usury , false weights and measures ; for the faithfull performance of vows ; and abolishing the very reliques of all pagan rites ; warranted by the very words and presidents of the sacred scripture . which decrees being recited in a publick council before these kings , and all their prelates , dukes , senators , and the people of the land : illi , cum omni devotione mentis , juxta possibilitatem virium suarum , adjuvante superna clementia , se in omnibus custodire devoverunt : they with all devotion of mind , according to the uttermost of their power , by the assistance of gods grace , vowed that they would observe them in all things ; which they all did with an unanimous voyce , a chearfull minde , and most ready will , ratifying this council with the subscriptions of their names , and the sign of the cr●ss● ( the usual form of those times , before seals were in use . ) this is the first law i finde ( extant in our realm , ) for the due payment of tithes , grounded only on divine precepts , cited in it , not on the popes decree● . true it is , that gregory bishop of ostia , legat to pope adrian , an englishman born , was president in this council , and had a chiefhand in making these laws , by this popes direction , to whom he returned them : but are they therefore popish and antichristian laws , which ought to be now abolished ( to gratifie the present pope & his emissaries the jesuits ) as made against jesus christ , as * john canne most magisterially determines ? if so , then these and our other laws then made against vsury , false weights , measures ( which too many cheating anabaptists use ) heathenish , pagan cusstoms , must be popish & antichristian too , with the law for performing our vows , covenants to god and men , with the very scriptures cited in them , wheron they are grounded , which impudency and atheism it self dares not affirm : if he say they are jewish laws , then the scriptures cited in them must be jewish too ; yea , the very title , and every page of hi● new pamphlet , must be rejected as jewish , as well as jesuitish ; being intituled , and superscribed in every page , a s●cond voice from the temple : the temple being jewish , and abolished as well as tithes , cor. . . john . , . which i wonder this blind zealot against judaism and tithes , had not eyes to see , or brains to consider . now these our predecessors , and many others since , obliging themselves both by vows , laws , and covenants , to pay tithes of all to god and his ministers , as gods peculiar right , and god himself not only enjoyning men in the old testament , not to remove the antient land-marks their fathers have ( duly ) set , prov. . . and to make good their ancestors oaths and vows , ( which oblige their posterity , as gen. . , . exod. . . josh . . . ch . . , to . chap. . , to . chap. . , to . chap. . , to . sam. . , to . sam. . , , , , , . chap. . . chap. . . chron. . . compared together resolve ) but likewise informing them in the new , as a gospel-truth , gal. . . that if it be but a mans covenant , if it be confirmed ( by many successive laws , statutes , curses , excommunications denounced against the infringers thereof in all succeeding ages , as this of tithes , and the churches rights and liberties have been ) no man disannulleth it : by what authority , right , law , reason , justice , conscience or power from god or men , any presuming mortals , at the sollicitations of anabaptists , iesuits , quakers , or atheistical wretches , can sacrilegiously attempt to rob god himself , and plunder his faithfull ministers of this their ancient , just , hereditary , sacred , setled maintenance ( to which our ministers have a far ancienter , better right , title , by all laws of god and man , than they have to their new acquired purchases and powers , ) established , setled on them by particular donors and benefactors out of their own private inheritances and estates , not the republicks , which neither the patrons themselves , nor any others , nor yet the ministers themselves can alienate from the church , ( as their own consciences , judgements must acknowledge , unlesse strangely cauterized : ) let them and canne answer to that * soveraign judge of all the earth ; who will probably judge them here , and shall certainly judge them eternally hereafter for all such detestable robberies , and violent rapines , if wilfully perpetrated and persevered in without repentance after timely admonition , who can quickly strip both them and theirs naked of all their temporal powers , honours , possessions , enjoyments , as he did jeroboam and his sonnes for their turning the priests and levites out of their possessions ; and king ahab with his family for seising upon naboths vineyard , in a violent and unrighteous manner , though coloured over , to delude the people , with an hypocritical fast , and feigned , legal proceedings , kings . we read it recorded of our saviour , luke . , . that when one of the company said unto him ; master , speak to my brother that he divide the inheritance with me : he returned him this answer , man , who made me a iudge or divider over you ? let every person now sollicited by croaking anabaptists , jesuits , quakers , souldiers , or others , not only to judge and divide , but utterly to abolish and take away our ministers necessary maintenance , ( not unnecessary abbots , or prelates , lordly superfluities long since dissipated ) by glebes and tithes , return them the self-same answer ; lest christ himself at the last day condemn them for over-bold intruders into such a supream jurisdiction over his , and his ministers , rights and callings too , as neither god nor man ever yet conferred on them . god himself prohibiting the sale , alienation , substraction of his priests and levites necessary glebes , tithes , and by consequence of our ministers ( as i have formerly observed ) and further informing all his , that it is a snare to a man to devour holy things , and after vows to make enquiry , prov. . . but of this second argument enough , the negative part whereof i shall prove more fully hereafter by way of answer to an objection . . i shall make good the proposition by arguments drawn from the new testament it self , which no wayes contradicts , but confirms the lawfullness of tithes . this i have already proved from heb. . , to . to which i shall refer the reader , and proceed to other texts . i shall begin with mat. . , . & luke . . woe unto you scribes and pharisees hypocrites , for ye pay tithes of mint , and annise , and cummin , and all manner of herbs , and have omitted the weightier things of the law , judgement , mercy , and faith , and the love of god : these ought ye to have done , and not to leave the other undone : ye blind guides , which strain at a gnat , and swallow a camel. in which words our saviour himself , though he denounceth a woe against the hypocritical pharisees , in beeing just and carefull in paying tithes , even of herbs and seeds of all sorts , of meanest value , and yet in the mean time neglecting works of righteousness in matters of greater worth , of charity towards man , and of faith and love toward god himself , straining at a gnat , and swallowing a camel : yet he positively resolves , that they ought not to omit the due and conscientious payment even of these lesser tithes of smallest value , much lesse then of their corn , wine , oyl , flocks , herds , which were of greater worth . and if the scribes and pharisees were no saints , but hypocrites for omitting these weightier duties , though they paid these smallest tithes ; what are these anabaptistical and other sectarian scribes and pharisees , who , not only against all rules of justice and charity towards men , but of faith and love to god ( which they even renounce ) rob god and his ministers , not onely of all their own tithes , small as well as great , but of those tithes which others would willingly pay them , and endevour totally to deprive them of those small rectories , glebes they yet enjoy , and of their ministry too ; and when they have * stript them stark naked of all they have , would eat their very flesh , and burn them with fire ? certainly such are worser and greater hypocrites , than the scribes and pharises , pretending conscience it self , for their most unconscionable dealing in this kinde . such mens throats are so wide , that they can swallow not only camels , but whole rectories , churches , steeples , with their lead , timber , bells , stone , ( to say no more ) for a breakfast ; all tithes in two or three parishes and throughout the land for a dinner , and the publick lands , revenues of the crown ( which should defray all ordinary publick charges for the peoples ease ) for a supper , that they may be supreme , and every one of them like our saviour christ himself , both a priest , prophet , and a king , executing a plurality of these three and other offices , and their callings too all at once , to enrich themselves faster than all other men . this text was much insisted on by ‖ john hus to prove tithes under the gospel to be pure alms , coupling it with the former verse , luke . . but rather give alms of such things as you have , and behold all things are clean unto you ; but certainly the text it self proves , that this referrs only to the washing mentioned in the precedent verses ; not to this subsequent clause concerning their payment of tithes , never stiled almes in any text ; and recorded by matthew , as a distinct woe , and sentence of it self ; without any mention of almes , in the antecedent or subsequent verses : and john hus himself , together with augustine , chrysostom , hierom , and aquinas , ( there cited by him ) from hence conclude ; that tithes are lawfull under the gospel , as well as alms , forsomuch as the gift thereof unto the priest , did not cease in the time of christ : and saint augustine in his sermon , of paying tithes , presseth the payment of them under the gospel , as a duty , by many enforcing arguments , before any popes decretals for payment of them , or that we now call popery , was known in the world . saint ambrose before him doing the like , in serm●ne quadragesimae , cited by gratian , causa . qu. . and st. cyprian before them both . which had john canne either known or considered , he would not , with so much mistaken ignorance and impudence , have damned tithes as popish , &c. and the pleading for them , as a pleading for babylon , and for baal : in his new second voice from the temple of babylon , or baal , which he pleaseth , not of old or new jerusalem . the next gospel text , i shall cite , is that of gal. . . let him that is taught in the word , communicate to him that teacheth him in all good things ; to which i shall subjoyn , cor. . . if we have sowed unto you spiritual things , is it a great matter , if we shall reap your carnal things ? rom. . . and their debtors they are : for if the gentiles have been made partakers of their spiritual things , their duty is also to minister unto them in carnal things . all these three gospel texts resolve , that ministers of the gospel , have a just due and right to a competent , comfortable share in all the goods things , temporal blessings and necessaries for the support of this life , which the people instructed by them , and receiving spiritual things from them , enjoy . and that the people are bound both by expresse precepts in the gospel , and by the rules of common , moral equity and justice , chearfully to communicate and minister such a fitting share of all their good things , and temporal blessings , as a debt and due , unto them , for their ministring to them in spiritual things : which i fully proved in the first proposition ; and impudency it self cannot deny . the sole question then is , what this share or portion ought to be , and who shall determine it in point of difference ? i confesse the apostle doth not decide either of these in terminis , these texts being general , all in the plural number ; all good things ; your carnal things ; comprising all such things out of which tithes , predial , mixt or personal ( as * canonists and lawyers distinguish them ) are or may be paid : wherefore every faithfull christian , every spiritual son of god , and of faithfull abraham , ( whose footsteps , presidents they are to follow , in all doubtful cases , admit this one ) to satisfie his conscience and judgement in this case , must and will resort to the presidents of the eminentest saints in former ages , and gods own prescripts in other expresse texts ; where finding the very father of the faithfull , abraham himself giving , his grandson jacob vowing , and god himself specially reserving , prescribing the payment of a tenth of all good things from and by his own people , for the maintenance of his priests and levites , under the law ; which they cheerfully rendred until and in christs own time ; that the very pharisees and scribes ( though hypocrites ) were so just , as to pay tithes of all ; that christ resolved they ought to do it , and not leave it undone ; and that none before the apostles dayes ever gave lesse than a tenth part : ( as the premises largely evidence ) he must and will necessarily conclude from all these sacred directories , precepts , presidents ; that the ordinary constant standing portion and proportion of all his goods and carnal things here prescribed , and intended by gods spirit , is the tenth part : and in extraordinary cases more , when gods glory , the ministers necessities , the defence or propagation of the gospel require it : and when he shall further read in the gospel it self , that speech of zacheus , the converted publican , luke . . behold , lord , the half of my goods i give to the poor : and how the first converted christians and jews in the apostles dayes , sold their lands , houses , and brought and laid the money at the apostles feet , acts . . his conscience ( which must not guide the word and spirit of god , as most mens consciences do now , but the word and spirit it and him too ) will and must from thence conclude , that he must not give his faithful minister lesse than a tenth part of all ; and in cases of extraordinary necessity , share even half his goods , yea , the price of all his lands and houses , between the ministers and poor saints of god , specially in times of persecution , when as he ought to hide , and feed them too , as godly obadiah did an hundred of the lords prophets in the dayes of jezebel , at his own charge , with the hazard of hi● office and life , kings . . . if any mans conscience in a setled christian realm , state , be so obstinate or froward , as not to submit to the lowest proportion of a tenth , which all ages , and most , or all setled christian realms have unanimously agreed upon , and confirmed by publike edicts , as well civil as ecclesiastical , whereof there are neer thousands in print ; the christian kings and magistrates are to determine all controversies of this nature , and state the just proportion of this debt and duty between the minister and people , where it is not publikely decided , and may justly enforce the due payment of it ( when and where it is determined by positive publick laws ) as a just debt , as they do in all other civil debts , duties , accompts in controversie before them , ( as i shall prove in due place ) even by these very texts , though john canne denies it , in his vox praeterea nihil , p. . to these i shall subjoyn that noted text in the cor. . , . ( which john canne cites by piece-meal , as the devil did scripture , leaving out the principal branch , mat. . . ) do ye not know , that they which minister about holy things , live of the things of the temple , and they that wait at the altar , are partakers with the altar ? even so hath the lord ordained ( this canne omits ) that they which preach the gospel , should live of the gospel . i have urged this text before for proof of the first ; i shall here apply it only to the second propositions confirmation , as to tithes . . then we have here a divine gospel ordinance made by the lord of hosts himself , ( not repealable by any army or powers on earth ) as well as parliamentary ordinances , for the maintenance of the preachers of the gospel : and let canne ( the poorest preacher of the gospel i ever yet knew in england , ( except one of his fraternity , ) who heard him once preach an assize and fast sermon too at chard ) deny our ministers to be able preachers of the gospel , at the peril of his soul , though he denies them to be lawful ministers of christ , and censures them as antichristian and popish : but why so ? because ( forsooth ) they had their ordination from rome ; and by consequence are traytors and felons too , by the statute of eliz. c. . for which they might be legally executed for treason and felony , if the state were not pleased to interpret the statute contrary , as he conceives , to the letter and form of it : ( the words whereof he both curtals and misrecites , just as he did this text ) p. . to doe him and his best friends a kindness , vindicate the lawfulness of our ministers calling against this ordinary slander , and convince him of his grosse mistake , i shall truly recite the statute , thus intituled : jesuites and priests , in england shall depart , and none shall come into this realm . if so , then many dippers , speakers , administrators , members in anabaptistical congregations ; many new-lights and gifted-brethren in separate congregations ; many shakers , quakers , ranters , broachers of new notions , errours , blasphemies , throughout the realm ; many new politicians , levellers , agitators , soldiers in the army , if not some officers ; all the late converted pretended † jews , dipped in anabaptistical congregations ( discovered and known to be disguised iesuites , purposely sent from rome , and the greatest sticklers against our ministers tithes and calling ) must presently depart , and none of them return into the kingdom ( as many have lately done ) or else be executed for traytors ; but why so ? what is their crime , work , imployment here ; and by what marks or fruits shall we know , discover both them and their confederates ? let the words of the statute ( compared with all our late troubles , changes ) resolve the ignorant and incredulous , that there are many such amongst us , and of iohn cannes fraternity . whereas divers persons called or professed jesuites ( these canne wittingly conceals , though the first in the bead-roll , and therfore is a felon by the law ) seminary priests and other priests , which have been , and from time to time are made in parts beyond the sea ; by , or according to the order and rites of the church of rome , ( and when canne can prove that all or any of our ministers were thus made , as he hath confidently averred in print to those , he calls , the higher powers and supream authority of the nation , let them be hanged for traitors and antichristian ministers in good earnest , else let him be hanged in their stead , for this his impudent slander of them all , as well independents as presbyterians : ) have of late years come and been sent into this realm of england ( and were any of our ministers such , and not rather canne himself , coming hither from amsterdam for the purposes following ) and other the queens dominions of purpose ( as it hath appeared , as well by some of their own examinations ( now out of date ) as by divers other manifest means and proofs ( more visible of late years than ever ) not only to withdraw her highness subjects from their due obedience to her majesty , but also to stir up and move sedition , r●bellion , and open hostility within the same her highness realms and dominions , to the great endangering of the safety of her most royal person , and to the utter ruine , desolation and overthrow of the whole realm ( now effected as a realm ) if the same be not the sooner ( and now pray god it be not over-late ) by some good means foreseen and prevented . for reformation whereof , be it ordained , &c. that all priests and jesuits ( canne cannot spy such good friends within the act , but deletes them out of it ) seminary priests , and other priests whatsoever , made and ordained out of the realm of england , &c. shall depart the realm under the penalties therein mentioned . had canne pressed this statute to those he dedicates his pamphlet , for the speedy execution of it against those many jesuits and seminary priests now in england , for their traiterous practices and designes therein mentioned , of late , and now driven on and almost compleated by them , it had been a commendable zeal ; but not to write one word or syllable against these romish vermine , arch-engineers and janizaries of the romish see , now swarming among us , to ruine our protestant kings , kingdoms , parliaments , laws , liberties , church , ministers , ministry , religion , and foreign protestant kingdoms , states , churches now engaged by them in bloody warres , both by land and sea ; and to omit the very name of the jesuits ( the first popish agents mentioned and chiefly intended in this act ) and presse it only against our ministers calling , ministry , tithes , maintenance , of purpose to ruine them and theirs , and by consequence our church and religion ( the designe and scope of his whole pamphlet ) is such a malicious , unchristian , antichristian practice , as proclaimes him to all the world , either a new converted jesuit , or romish factor , under the garb of an old anabaptist , or an over-grown cankered anabaptist , void of piety , honesty , inspired by the very * father of lyes . for not one of our english ministers i know or hear of ( except two or three jesuits , and popish priests crept into livings in staffordshire and elsewhere very lately , i know not by whose favour or negligence ) was ever ordained by any such jurisdiction or authority , as is here mentioned ; which all our ministers ( and their ordainers too , whether prelates or presbyters ) particularly and publickly abjured , both at the time of their respective ordinations and admissions to their benefices , and likewise when they took any degree of learning in our vniversities , by the two known famous oathes of supremacy and allegiance , purposly made and ratified by * sundry , zealous , protestant parliaments against the usurped papal jurisdiction and authority of the see of rome , and the popes , jesuits , papists practices , to blow up , destroy our protestant kings , parliaments , laws , liberties , religion , and subvert our kingly government , whole state and commonwealth , and for the better discovering of them ; yet lately suspended , abrogated , as dangerous unlawful oathes , by some of cannes good friends , who would be reputed zealots against the popes iurisdiction and his creatures too : now how those ministers of our church , who thus abjure the iurisdiction of rome , at the time of their very ordination , ( and their ordainers too , before them ) and since have done the like in their solemn league and covenant , can without the highest slander be said to derive their ministry from it ; ( and that by canne and his iesuitical , anabaptistical fraternity , who never took one of these oathes , or the covenant ; and revile , repeal them as unlawful out of love to the popes jurisdiction , jesuits , priests , their jesuitical , treasonable conspiracies , treasons , practices , or for want of zeal against them , ) let the world and this slanderers own conscience ( if he have any left ) now determine . besides , who knows not ( but this ignoramus ) that the rites and ceremonies of ordination in the church of rome , recorded at large in ceremoniale , & pontificiale pontificum romanorum , and the ends of ordination likewise ( viz. to say masse , create their creator , offer up christ in sacrifice at the altar to his father , invocate saints , adore images , yield canonical obedience to the pope and his supremacy , &c. ) are far different from the form and ends of our ministers ordination in the church of england , prescribed by the parl. of . & . ed. . c. . ratified by the statutes of eliz. c. , . eliz. c. . eliz. c. . and eliz. c. . ( made only by protestant parliaments ) which as they particularly condemn , renounce the popes power and jurisdiction ; so they declare and resolve , our ministers ordination to be lawfull ; and them * in very deed to be ministers , and rightly made , ordained and consecrated , according to gods word , without any derivative power or ordination from the church of rome ? therefore for this new old pander for the whore of rome to averre , they receive their ministry and ordination thence , is a notorious ly. yea , but saith he , francis mason of consecration , and mr. yates in his modell of divinity prove and confesse , that the ministry of the church of england ( established by the law of the land ) is derived from the pope and rome . true , but in what sense ? onely by way of succession , as his own ministry and faith ( if he hath any ) were derived from john of leyden : or just as our bibles , religion , baptism , churches were derived thence , and all now living with canne himself , derived from popish ancestors , ( many even from popes , popish priests , prelates , friars , ) by natural generation , as their surnames discover . god used the * popes of rome and their instruments to convert the britains and saxons from their paganism to the christian ( not papal or roman ) faith ; which through gods mercy hath continued amongst us ever since ; yet mixed of later times with manifold popish errors and superstitions . these errors , superstitions , our godly martyrs , and by them our kings and parliaments discovering , did thereupon by special acts of parliament abolish , as derived from the church of rome , together with the * popes usurped power , and gain , which they served only to support ; retaining only the scriptures , sacraments , soul-saving doctrines , thence derived by succession onely ( but authoritatively , originally from god and christ himself ) with such godly , orthodox bishops and ministers , who though first ordained in the church of england when popish , did yet renounce all her popish errors , corruptions , with the popes supremacy , and all popish additional rites to the form of their ordination and baptism : ( which made neither of them void in substance , no more than their annexing of the apocrypha to the canonical scriptures , made them uncanonical . ) these afterwards ordained other bishops , ministers without any popish rites , in such manner as the gospel prescribes : which mr. mason , mr. yates and others prove against the papists , to be a lawful ordination , though not made by the popes authority , nor according to former popish ceremonies . in this sense onely , they write the bare succession , not the office and calling of our ministers ( as this woodden canne mistakes ) was derived from the church of rome ; but their ministry it self from christs own institution . and if this makes them popish and antichristian , then all our protestant kings , parliaments , magistrates , judges , officers of all sorts must be popish too , if not paganish , because their predecessors were such : and all officers , souldiers of the army , and anabaptistical saints too , who have purchased any lands , rents , revenues of abbies , priories , archbishops , bishops , deans , chapters , archdeacons , must likewise be both antichristian and popish ; because their predecessors , who first enjoyed , and from whom they do derive them , were such , at least in their and cannes repute . i hope therefore , they will all now renounce these their purchases to avoid the guilt and high scandal of popery and antichristianism ; or disclaim this second , loud-lying voice against our ministers and their ministry , as a voice only from a prophane empty canne ; not from a sacred temple , or gods holy spirit . but to return from this necessary digression , touching the lawfulness of our ministers calling , unto their tithes ; we have secondly in this text , cor. . , . a gospel ordinance for their very tithes , confirmed by the old levitical law , and grounded on its equity . but how doth this appear ? by these emphatical words ; even so hath the lord ordained ( in the preterperfect tense ) that they which preach the gospel , should live of the gospel ; but where hath the lord ordained this ? the apostle thrice resolves expresly , that he hath done it in the levitical law , v. . for it is written in the laws of moses ( deut. . . ) thou shalt not muzzle the mouth of the ox that treadeth out the corn ; doth god take care for oxen ? or saith he it altogether for our sakes ? for our sakes no doubt this is written : that he that ploweth should plow in hope , and he that thresheth in hope , should be partaker of his hope ; which he again recites , tim. . . if this precept concerning the meat and maintenance of oxen only in the letter , though part of the levitical law , was doubtless written for , and really intended of the ministers of the gospels food and maintenance , and in full force under the gospel , as the apostle clearly resolves ; then a fortiori , the precepts of the law concerning the food and livelihood of gods priests , and levites under the law , by glebes and tithes , not purely ceremonial ( as i have already proved ) must doubtlesse be intended of them , and be in full force likewise in their natural , equitable sence and proportion , in relation to their livelihood for preaching of the gospel ; there being a greater analogy , proportion between them and preachers of the gospel , than betwixt them and oxen. to put it out of doubt , he subjoyns ; do not ye know , that they which minister about holy things , live of the things of the temple ? and they which wait at the altar , are partakers with the altar ? to wit , by gods expresse ordinance in the levitical law , which ye know , and therefore i need not particularly cite the words , as i did the other , of not muzzling the ox , &c. which were more obscure , and needed my former paraphrase on them ; but thus mind you of them in the general : and then he inferrs and subjoyns : even so hath the lord ordained ( to wit , by the very natural , moral equity of the lawes , ordinances he made for the priests and levites maintenance by tithes , glebes , and free-will-offerings , for officiating in the temple , and at the altar under the law ) that the preachers of the gospel ( who now succeed , and supply their places , though in different services in the churches of christ under the gospel ) should live of the gospel ; even so fully , comfortably , and in such sort , as they did under the law : or at least by this gospel text , superadded to them by gods spirit . to make this out more fully , and clear it from the censure of judaism , take notice of these four particulars . . that in the holy ghosts gospel phrase and language , there is a temple among and for christians under the gospel , as well as among and for the jews under the law , ( else cannes voice from the temple , if there be no such place , must be thus amended in his next edition : a voice from the canne or alehouse ) and that this temple is nothing else , but the church and saints of christ , cor. . . cor. . , . chap. . . ephes . . . thess . . . rev. . chap. . . chap. . , , . chap. , . chap. . , , . chap. . , . compared together . . that christians under the gospel , have likewise an altar as well as the jews , though different from theirs , heb. . . we have an altar whereof they have no right to eat which serve the tabernacle ; oft mentioned , rev. . . chap. . , . chap. . . ch . . . yea coupled with the temple , rev. . . rise , measure the temple of god and the altar . . we have sacrifices to be offered in this temple on the altar , as well as the jews in theirs . . the sacrifice of prayer , rev. . , , . . the sacrifice of praise , heb. . . . the sacrifice of charity , alms and good works , heb. . . . our own bodies , which we must present as a living sacrifice , holy , acceptable unto god , by serving him according to his word , as rational men , not beasts , that were both slain and sacrificed under the law , rom. . . . we have priests likewise to offer up these spiritual sacrifices , pet. . . rev. . . chap. . . chap. . . and these are three . . every sanctified christian , who must offer up the sacrifices of prayer , praise , alms , and his own body to god , in his private closet and family . . the ministers of the gospel , who must continually offer up these sacrifices in the peoples behalf , in publick here on earth , in the temple , for which we are to render them , not only tithes and glebes , but a free-will-offering of bounty and charity besides , a sacrifice acceptable and well-pleasing to god , phil. . . . christ jesus himself , our altar and high priest too , now sitting in heaven , heb. . . cap. . . c. . , . c. . . c. . . c. . , , , , , . c. . . c. . . and if christians have thus even under the gospel a temple , an altar , spiritual sacrifices , priests to officiate in , at them , and offer up these sacrifices to god in publike , as well as the jews ; why the priests , who minister about holy things in this evangelical temple , wait continually at this spiritual altar , offer these spiritual sacrifices publikely unto god thereon , administer the sacraments , blesse the people , and preach the gospel likewise to them ( as the jewish priests and levites did teach , instruct and bless the people in the law , and kill the passeover , chron. . , , . c. . , , . cap. . , . cap. . . ezra . . neh. . , to . numb . . , , . ) should not receive both glebes , tithes , and voluntary oblations from the people , as well as the priests and levites did under the law , by vertue of the self-same levitical law of god , by which they claimed them ( they being both the priests of the self-same god , and both executing the self-same priestly office in a different manner , and that by the apostles own argument , intention , and positive resolution in this gospel text ) let canne and all other oppugners of their tithes resolve me and others , from as clear gospel texts as these i have here alleged , and others formerly insisted on in the first proposition , or else yeeld their cause for ever lost . i shall cloze up all with two other gospel texts , most urged and abused by those now in power in their own cases , who most of all forgot , transgressed , oppugned them heretofore in other mens . the first is , pet. . , . submit your selves to every ordinance of man for the lords sake , whether it be to the king as supreme , or unto governours , &c. the second , rom. . , . let every soul be subject unto the higher powers , for there is no power but of god : the powers that are , are ordained of god ; whosoever therefore resisteth the power , resisteth the ordinance of god ; and they that resist shall receive to themselves damnation . that these two scriptures extend only to lawful hereditary , or elective kings , governours , higher powers , and that in their lawfull commands , alone ; not to usurpers , tyrants , invaders of the peoples rights , laws , liberties , properties , lives , ( who may and ought to be resisted , as well as any other theeves , robbers , invaders , murtherers whatsoever ) i have largely proved in my second part of my soveraign power of parliaments and kingdoms ( authorized by the commons house of parliament ) p. , to . to which i shall referr the reader for satisfaction , not being the point in issue , to which alone i shall apply them . in the former text last insisted on , we had an ordinance of god himself for the maintenance and tithes of the preachers of the gospel : here we have , two gospel commandements to submit to every ordinance of our lawfull governours , and higher powers ( agreeable to gods ordinances , or not repugnant to them ) for the lords sake , & not to resist them : for though the ordinances themselves be made but by men , and in that sence stiled , every ordinance of man ; yet the powers that make them , are ordained of god ; therefore those who resist them in their humane ordinances , though but in humane things , do therein resist the very ordinance of god , especially in things divine , commanded by and approved in gods own sacred word . now the maintenance of gods ministers by tithes , is an expresse ordinance of god himself , both before and during the law , and under the gospel too , prescribed , warranted by all the forecited texts : and there are infinite * laws , statutes , decrees , canons , ordinances of just and lawfull christian emperours , kings , governours , parliaments , states , councils , synods , and all higher powers , as well civil as ecclesiastical , in all christian kingdoms , states , churches , especially in our own , for the establishment and due payment of them to the ministers and preachers of the gospel : therefore they are duely , constantly , chearfully to be paid unto them by all christians and professors of the very gospel , and cannot , may not be oppugned , detained , substracted , resisted by john canne or any of his confederates , nor abrogated by any pretending to power ordained by god , without resisting the ordinance of god himself , yea fighting against him ; as these texts and acts . . resolve . for which they shall receive to themselves damnation , though they dream ( as many now do ) they should merit heaven and salvation too , by substracting , subverting both tithes and ministers , even by open armed violence , if they cannot accomplish it by jesuitical policy , and pious frauds . and thus much for the confirmation of the second proposition by scripture texts and presidents . for humane authorities , that tithes are lawfull and due to ministers by a divine right even under the gospel , i could cite very many , were i * near my library and books as heretofore , but being far distant from them , i shall trouble you onely with a catalogue of such as i have by me , or remember : * fathers of this judgment and opinion you may peruse origen homil. in numeros , c. . st. ambrose in sermone quadragesimae , cited by gratian causa . qu. . st. hierome on mal. . and st. augustine de tempore serm. . de reddendis decimis tom. . both cited by gratian causa . qu. . for councils , you may peruse concilium rothomagense & magotiense in gratian causa . qu. . concilium matisconense . anno . concilium apud solemanum anno . synodus rothingue anno . concilium trecense anno . ( which resolves , decimae fuerunt à deo primitus institutae ; & praecipiuntur solvi tam de veteri , quam de novo testamento ) synodus lingonensis anno . synodus turonensis anno . concilium tridentinum & tholosanum , anno . which decree , that the payment of tithes , divino jure cautum est , sacrisque utriusque testamenti libris confirmatum . all these collected together by bochellus decreto ecclesiae galicanae l. . tit. . de decimis , concilium tridentinum , sessio . . c. . the council of orenth an. . with many more recorded in binius , surius , crab , caranza , merlin , syrmond , and other collectors of the decrees of councils , resolve , tithes to be due to the ministers of the gospel by divine right , ratified both by the old and new testament . for forein popish a authors , aimericus bishop of poitiers in france in a synod there held , anno . enjoyned all chaplains on lords-dayes and holy-dayes diligently to declare to the people in time of masse , and likewise in their sermons under pain of excomunication , qualiter ex praecepto divinae legis , quilibet catholicus tenetur solvere ecclesiae decimas de omnibus licitè acquisitis : gratian the canonist causa . qu. . & . with john thiery , and other glossers on his text ; the clergie of the diocesse of b paris & troyes in france , mentioned in an edict of h. the . of france , an. . & of the clergy of poissy , recited in an edict of charls the . an. . for payment of tithes , as introduced & instituted by divine right . hostiensis in his summa aurea , angelus de clavasio in his summa angelica : baptista tuvomala , in his summa rossella , tit. decimae ; innocentius , res . de decimis , albertus pius carpensis , rebuffus de decimis , tyndarus in his special tract de decimis , printed at colen anno . and generally all other canonists . alexander alensis summa theol. parte . qu. , , . richardus de media villa in lib. . sentent . distinct . . and most other c schoolmen on that place . aquinas . . quaest . . with most commentators on him , there assert , that tithes are even at this day due to ministers , iure divino , in quantum sunt à jure naturali & morali , but not as they were ceremonial . popish old and new expositors , commentators on gen. . & . levit. . chron. . neh. . & . mal. . mat. . luke . rom. . cor. . gal. . . thes . . heb. . tim. . are all of the same opinion , and most protestant expositors likewise . yea st. briget in her revelationes extravagantes , cap. , . will resolve our female quakers ( who now pretend to immediate extravagant revelations as well as she ) that those do spoil christ himself of his right , who do not pay tithes to him and his ministers ; and that by a revelation from christs own mouth . therefore the jesuits , popish priests , papists activity , business now in declaiming against english protestant ministers tithes as popish and antichristian , against the decrees , resolutions of all their own councils , canonists , casuists , schoolmen , expositors , popes , can proceed from no other ground but a malicious design to subvert , starve , ruine our protestant ministers for want of maintenance , and thereby to extirpate our religion to advance their own in its place , and then they will cry and set up tithes again as much as ever . the judgement of forein protestant divines concerning the divine right of ministers maintenance , and that by tithes where setled , and the sacrilegious impiety of those , who would rob them of it , you may read in their commentaries and expositions on the texts forecited . let learned nicholas hemingius speak for them all in his words already cited ; and in his exposition on gal. . . p. . dicit scriptura , bovi trituranti non obligabis os . et dignus est operarius mercede sua : indignissimus igitur christiano nomine censendus est , qui ministros evangelii totius ecclesiae curam gerentes negligit . bestia quavis immanior est ( let canne and his confederates remember it ) qui eos odio prosequitur & proscindit , quorum ministerio ad salutem , & immortalitatem invitatur . sed proh dolor ! bona pars mundi ( and never so much as now ) huc incumbit , ut potius aliquid adimat ministerio , quam addat , tanta est ingratitudo & perversitas , etiam illorum , qui sacrilege audeat gloriari de christiano nomine . horum sanè factum , nihil differre arbitror à sacrilegio & latrocinio , cujus poenas olim luent architecti et fabri hujus mali . non est quod quisquam quaerat subterfugia , quibus se excuset , cur minus sit liberalis erga ministros evangelii : oculos quidem hominum fallere potest ; sed deus non fallitur , in cujus contemptum alia atque alia praetexunt ingrati . hic tres loci observantur : primus , quod victus et alia officia debeantur oeconomis mysteriorum dei , seu catechesis . secundus , quod perniciosus error fit , non prudentia , defraudare ministros sua debita mercede . tertius , quod spiritus sanctus in paulo interpretetur , derisionem majestatis divinae esse negare victum et alia officia verbi doctoribus . i shall subjoyn to him these memorable seasonable passages of ‖ huldricus zuinglius , in his brevis pastorum isagoge ; where he resolves thus . quotquot ergo hac tempestate nostra divini verbi patrocinio , et falso praetextu confisi debitos census et decimas , et alia hujusmodi quae justis legibus solvere jubentur , negare instituunt , omnes hi hujus praecepti sententia damnantur , quo monemur , ne quis furtum faciat : quin hoc ipso reliquis furibus pejores sunt , quod furto suo praetextum quendam et patrocinium ex christi doctrina adducere conantur . quod si eo res redigatur , ut debita singulis impune negare liceat , et nulla legitimi magistratus cura sit et ratio , nullus denique honestarum legum respectus , quis non videt quanto tutius fuerit cum immanissima turcarum gente , quam cum hujusmodi hominibus omnis aequitatis et justitiae negligentibus conversari ? nec enim ulla potest in deum dici blasphemia atrocior , nulla enim re magis ipsius nomen infamari , quam si hujusmodi fraudes et imposturas nequissimas , nominis illius praetextu , et religionis titulo defendere conemur . let our anabaptists , quakers , tith-detainers , consider and tremble at it . in his book * de duplici justitia , divina & humana : treating of tithes and their diverse kinds , he concludes thus . de istis vero decimis , quae spiritualium vel clericorum ( ut vocant ) sunt , vel illorum aere redemptae , constanter affirmo , eas omnino reddendas esse , quamdiu magistratus has solvere jubet . quin et illud magistratui licere dicimus , ut si inobedientes , et has solvere nolint , justo imperio ad harum solutionem cogat . decimarum enim translatio communi magistratuum consensu instituta est , et juxta decimam aestimationem omnes fundi , agri et praedia vel vilius vel carius quoque divendita et empta sunt . quisquis vero contra communem illum legitimi magistratus consensum ex proprio animi sui arbitrio et consilio privato decimas negaverit , magistratui resistit quisquis talis est , qui vero magistratui sese inobedientem exhibet , deo quoque resistit , ut superius abunde satis demonstratum est . he concludes thus , singulorum officium est decimas juxta magistratus sententiam et decretum exolvere ; nec enim quisquam hominum privato et violento consilio quicquam hic tentabit nisi furum et raptorum iudicium subire cupiat . learned gulielmus stuckius , antiquitatum convivalium l. . c. . de decimis , stipendiis , atque salariis eorum qui ecclesiis praesunt ; proves from the example of abraham and vow of jacob , consuetudinem decimas dandi etiam ante legem fuisse usitatam . veresimile etiam est ethnicos ab illis commemoratis exemplis tritum illud suum et usitatum praedae , spoliarum , et quicquid ab hostibus captum est , decimam jovi caeterisque diis vovendi solvendique morem traxisse , cujus multa sane illustria exempla extant apud alexand. ab alex. l. . genial . c. . then he shews how god prescribed them to the levites and priests , that the payment of them continued in christs time , and was revived by christian emperors and magistrates , as constantine , charles the great . concluding thus . ut ergo impie agunt illi magistratus , qui bona ecclesiae dicata ad se rapiunt , vel ad alios usus transferunt : ita impii et sacrilegi sunt privati homines , qui non modo nihil pro suis facultatibus conferunt ad ministri ecclesiastici et scholarum conservationem , sed decimas et census devitos , jam antea ecclesiae dicatos , vel omnino non solvunt , vel non ea , qua par est fide , &c. itaque mirum non est multa quotidie cum privata , tum publica mala , annonae praesertim caritatem ingruere , cum decime ali●que census ad ecclesiarum scholarumque conservationem pertinentes , vel negantur , vel maligne persolvantur . for our own domestick councils , parliaments and writers judgements herein ; * egbert archbishop of york in his excerptions about the year of christ , an : . c. . , . the national council of calchuth under king oswald and offa , ann . . c. . forecited . the famous council of grateley , under king athelstan , ann . . cap. . de decimis sollicite reddendis . odo archbishop of canterbury in his constitutions , ann . . c. . de decimis reddendis . the canons under king edgar , about the year . can. . the ecclesiastical laws of king aethelred , ann . . cap. . the ecclesiastical laws of edward the confessor , c. . confirmed by william the conqueror . the popish schoolmen , canonists , and commentators on the texts forecited , ( whose names i pretermit ) the ‖ convocation of england , an . h. . and the petition of the english clergy in parliament , e. . rot . parl. n. . resolve in positive terms , that tithes are due to god and his ministers under the gospel , by divine right . the same is asserted by divers of our protestant divines , particularly by dr. george carleton , in his treatise intituled , tithes proved to be due by a divine right , printed at london . by dr. william sclater his ministers portion . by richard eburne his maintenance of the ministry , london . by richard mountague , in his diatribe on the first part of the history of tithes , london . by robert tileslee his animadversions on mr. seldens history of tithes , london . mr. samuel purchas in his pilgrimage , l. . c. . with sundry others . and though one or two english writers are of a different opinion , yet they all accord , that being setled by our laws , they are duely to be paid , even in point of justice and conscience ; that they are not simply unlawfull ; but a just and fitting maintenance under the gospel , which mr. selden in his history of tithes & review thereof doth affirm , and no wayes oppose : seeing then all these , with the laws of sundry other kings , nations , and authorities of all sorts , conclude them to be of divine right , and conclude it both a grievous sinne and sacrilege against god to substract or abolish them ; and those who oppugn their divine right under the gospel , do affirm , it is no sin , but a bounden debt and duty to pay them , as settled by humane grants , donations , vows , laws , canons , constitutions , prescriptions time out of minde ; how any bearing the name of christians , can or dare with open face oppugn , detain , or attempt their total abrogation now , as jewish or antichristian , i referre it to their own consciences , and others resolutions to determine . i shall answer one grand objection against ministers tithes under the gospel ; and so cloze up this chapter . neither jesus christ himself , nor his apostles , nor the ministers of the primitive church for two or three hundred years after them , received tithes for preaching the gospel , but lived onely upon the peoples alms and voluntary contributions . therefore the ministers of the gospel likewise after them ought to receive no tithes of the people for preaching the gospel , but to live upon alms and voluntary contributions , as they did . this was william thorps chief argument against tithes , fox acts and monuments , vol. . p. , . who addes , that those priests , who will challenge or take tithes , deny that christ is come in the flesh , and do the priests office of the old law , for whom tithes were granted , for else priests take now tithes wrongfully ; citing this , not as his own , but a doctors opinion , whose name he remembred not , but thought it was st. jerome ; ( or rather st. canne ) in his new voyce , p. , , . who delivers this for orthodox doctrine ; which st. a jerome directly contradicts , with all other antient doctors i have read . answ . to this i reply , . that christ and his apostles lived amongst the jews , who at that time were obliged by gods own law to pay their tithes only to such priests and levites as were of the tribe of levi , of which tribe christ and his apostles were not ; therefore they challenged not tithes from them , heb. . . to . . they then paid their tithes duly to their priests and levites ( mentioned john . . ) for which christ commended them , resolving they ought not to omit it , mat. . . luke . . ch . . . therefore it was no reason they should pay them over again to christ or his apostles ( no more than papists , who pay tithes in kind against their wills unto our ministers , though not to their own priests , but only voluntary contributions ) whiles their priesthood stood in force , which they generally submitted to . . the total abrogation of the levitical priesthood and ceremonies by the death of christ , was not certainly known to , nor resolved by the apostles and believing jews or gentiles , till some years space after our saviours ascension , as is evident by acts . in the great case of circumcision , about which there was a synod assembled ; by pauls circumcising timothy after this , because of the jews , acts . . his purifying himself , and shaving his head after the jewish manner , many years afterward , acts . , to . which he being a jew , was obliged even then to observe to avoid scandal , but not the gentiles . therefore tithes amongst the jewes upon this account , were then still paid to their levitical priests , not to the apostles . . though christ whiles on earth , received no tithes from the jewes , yet he had a just right , title to tithes from abraham and all his posterity , yea from the levitical priests themselves ( especially after their abolition ) as he was a priest for ever after the order of melchisedeck , to whom abraham himself and the levites then in his loins paid tithes of all , heb. . , to . ( of which at large before : ) therefore he had a just right to receive tithes from them , both before the institution , and after the abolition of the levitical priesthood , which he might have lawfully claimed , exercised , and his apostles likewise in his right , though they did it not . we read that christ had a just right , title by inheritance , and lineal descent from his father king david , to the temporal crown and kingdome of judah ; being therefore said by the wise men , mat. . . to be born king of the iews ( an unanswerable argument for the lawfullnesse , excellency of hereditary titles to crowns and kingdomes , before that of election only , wherewith i frequently silenced vapouring souldiers against hereditary kingship , being the very title of christ himself , both to his a spiritual and temporal kingdome , and that which b god instituted amongst his church , people , as the best , surest of all other , c taken up by most heathen nations ; ) now though christ neither claimed nor exercised this his temporal right , but avoided it , when the people would have made him king by force , john . . who yet after cryed him up for the king of israel , john . , . which even pilate himself acknowledged , when he said unto the jews behold your king : demanded of them , shall i crucifie your king ? and wrote , fixed this title on his crosse , iesus of nazareth king of the iews , john . , , . will , or can john canne , or any other of his antimonarchical confederates , hence justly infer ; that it was unlawfull for christ himself , right heir by descent to his hereditary temporal kingdome , kept and thrust out thereof by usurping herod ( who murthered all the infants in bethlehem , and the coasts thereof that were two years old and under , and would have murthered our saviour himself to secure his own usurped power , mat. . , . such is the bloody cruelty , jealousie of usurpers , ) to have claimed or exercised this his just , hereditary right to the crown ? or unlawfull for the people to have thrust out this bloody intruder herod , by force from his usurped authority , and made christ king as they intended ? or because christ did then voluntarily forbear , relinquish his temporal right to herod , will it thence necessarily follow , that it is therefore unlawfull , for any other hereditary christian king , or right heir to a crown , kept from , or thrust out of his throne , kingdome by armed violence , against the generality of his peoples desires , by any aspiring , usurping herod , to lay claim to his crown , kingdome , or for the faithfull , natural born subjects , according to their duty , oathes , allegiance , to endeavour by all lawfull means , and open force to expell , dethrone such herods , and crown , set up their lawfull soveraign on the throne of the kingdome ? doubtlesse they cannot be so absurdly stupid , to affirm it ; seeing jehoiadah the high priest , the captains of hundreds , levites , souldiers and people too , thrust out and slew with the sword athaliah ( the bloody usurper of the kingdome and throne of judah ) in the second year of her usurpation , crowned joash the kings son , king , as the lord had said of the sons of david , and set him upon the throne of the kingdome : whereupon all the people of the land rejoyced , and the city was quiet : as is recorded at large to their eternal honour by god himself , and for others imitation in the like case , chron. . and kings . the rather , because all other men by our laws may justly lay claim to , and repossesse themselves of such lands , houses , goods , as others forcibly detain or take from them against all law , right , notwithstanding christs non-claim to his rightful crown : therefore by the self-same reason our ministers of the gospel now may lawfully challenge and take tithes from the people , though christ and his apostles did it not , albeit they had a just right and title to them , which they might have exercised had they pleased without sin , or judaism , as our ministers do now , as paul resolves in cor. . , , , , . to clear which right from judaism and all other cavils beyond all contradiction , i shall cite only two prophecies , relating joyntly to christs kingdom , and ministers under the gospel . the first is jer. . . to the end . in those dayes and at that time will i cause the branch of righteousness to grow up unto david , and he shall execute righteousnesse and judgement in the land. in those days shall judah be saved , and jerusalem shall dwell safely , and this is the name wherewith he shall be called , the lord our righteousness . for thus saith the lord , david shall never want a man to sit upon the throne of the house of israel : neither shall the priests , the levites , want a man before me to offer burnt-offerings , and to kindle meat-offerings , and to do sacrifices continually . thus saith the lord , if you can break my covenant of the day , and my covenant of the night , so that there should not be day and night in their season : then may also my covenant be broken with david my servant , that he should not have a son to reign upon his throne , ( therefore our covenants , oaths to our kings , their heirs and successors , should be as stable , as inviolable , and strictly observed , as gods to david and his posterity , ps . . , , . ps . . , . hebr. . , . ps . . . eccles . . . gal. . , . ) and with the levites the priests my ministers . as the host of heaven cannot be numbred , neither the sand of the sea measured , so will i multiply the seed of david my servant , and the levites that minister unto me , &c. the second is isa . . , to . i will gather all nations and tongues , and they shall come and see my glory , and i will set a sign among them , and i will send those that escape of them unto the nations , and to tarshish , &c. and to the isles afar off ( whereof england is chief and principally intended ) and they shall bring all your brethren for an * offering unto the lord out of all nations , upon horses and in chariots , and in litters , and upon mules , and upon swift beasts , to my holy mountain in jerusalem , saith the lord , as the children of israel bring an offering in a clean vessel unto the house of the lord , and i will also take of them for priests and for levits , saith the lord : from which texts i shall observe ; . that as christs title to his everlasting spiritual kingdom under the gospel , over all the converted gentiles as well as jews , is expresly set forth to be neither elective , nor by conquest , but by descent , heirship and lineal succession after the flesh from king david ; whence he is stiled heir of all things , heb. . . and the lord shall give unto him the throne of his father david , and he shall reign over the house of jacob for ever , &c. luke . , . ezech : . , . jer : . , . c. . , , . even as all the regenerated sons of god are by their right of son-ship , and new-birth , in like sort intituled to the kingdom of heaven ( whence they are stiled heirs and inheritors of the kingdom , jam : . . gal : . . rom : . . titus . . heb : . . chap : . . pet : . . mat : . . and this kingdom the inheritance of the saints , col : . . ephes . . , , . pet : . . acts . . an unanswerable argument , that heirship and birthright is the best , surest , justest , honorablest , lawfullest title of all other to crowns , kingdoms , and possessions on earth , being the very title of christ himself to his everlasting kingship , kingdom , and of the saints in and by christ , to the kingdom of heaven it self , and crown of glory ; ) so the seat , throne of this his kingdom , is said to be in zion and jerusalem : ( most emphatically expressed , isa : . . the lord of hosts shall reign in mount zion , and in jerusalem , before his ancients gloriously ) a type of the church of god under the gospel , first planted in jerusalem , and propagated from thence throughout the world , according to the prophecies , isa . . . micah . . whence the church under the gospel is called the new jerusalem , &c. rev. . . chap. . , . gal : . . heb : . . . that the ministers of , and under the gospel , are expresly stiled in these prophecies priests and levites , several times . . that their office under the gospel in a mystical sense , is to offer burnt-offerings , to bake or kindle meat-offerings , to do sacrifices continually , and to minister unto god. . that these priests and levites , should be taken out of the converted gentiles , and isles afar off , whereof our isle was chief . . that these priests and levites should never fail , cease , nor want a man under the gospel , and that god would multiply them as the host of heaven , as well as the seed of david . . that they should convert and bring their brethren for an offering out of all nations , and the isles afar off , to gods mountain and house in jerusalem , as the children of israel used to bring their offerings thither . since therefore the ministers of the gospel in these prophecies are thus expresly stiled priests and levites , and are to offer burnt-offerings , meat-offerings , sacrifices and oblations to god in his mountain and house at jerusalem , &c. under david their king , in an evangelical sence , without any judaism or denying of christs coming in the flesh ; they may undoubtedly in the self-same sence and right , receive all glebes , tithes , oblations , and other dues from christians , and converted jews under the gospel , which the priests and levites did at jerusalem under king david and his successors ; seeing they succeed them in their office in an evangelical sence , according to these prophecies , which as strongly confirm the maintenance of their priestly function , and their tithes , as their evangelical priesthood . . although christ , his apostles , and the ministers of the gospel in the primitive times , whiles the church was in the ‖ wilderness under grievous , bloudy , antichristian kings , magistrates , persecutors , by reason of the present persecution , neither did nor could receive tithes and glebes for their maintenances from the persecuted christians , and therefore were necessitated to live by private contribution , and extraordinary wages in that case of extremity ; yet it no way follows , that therefore all ministers of the gospel afterwards shall and must do so in setled kingdoms , states , nations converted to the faith ; where kings , magistrates , people do all generally embrace , professe the gospel , where churches are established , and ministers glebes , tithes are or may be confirmed by setled laws : which i shall irrefragably prove by these instances . the priests and levites under the law , had no glebes nor tithes at all , whiles the israelites wandred years together in the wildernesse , though they had then ‖ a law , and right to receive them . will the objectors thence inferre , therefore they ought to have no tithes nor glebes when the israelites were possessors of and setled in the land of canaan in peace ; when they enjoyed both without dispute ? . the priests and levites had no tithes nor glebes in the realm of israel under the vsurper jeroboam , and his idolatrous successors , who deprived them of their possessions , cities , suburbs , tithes and priests office too , chron. . , . c. . . therefore the priests and levites in the kingdom of iudah , might not lawfully claim nor enjoy any glebes or tithes , nor ministers under the gospel , nor yet those in israel , under david and solomon , who were no persecutors but patrons of them . . when both these kingdoms with their priests and levites were carried away captives into assyria and babylon , the priests and levites during the years capivity enjoyed neither glebes nor tithes : will it thence follow , therefore they might lawfully enjoy neither , after their restitution to their country , and execution of their priestly function , and the re-edifying of the temple ? as we read they did , neh : . . c. . . c. . , to . whence the people were charged with robbing of god , when they neglected to pay tithes and oblations to them , mal. . , , , . . christ himself , so soon as born , was forced to fly out of his country into aegypt , by bloudy herod , and to remain there till after his death , mat : . , , . after which he complained , that foxes had holes , and birds of the ayr nests ; yet he had not where to lay his head , mat : . . luke . . and at last , he was apprehended , mocked , reviled , crowned with thorns , crucified by the malicious iews and soldiers , who parted his garments among them , and cast lots upon his vesture : the evangelists closing up the tragedy of his passion with this perpetual brand upon the domineering cruel soldiers , these things therefore the soldiers did , iohn . . for which , and for reporting a lye to smother the truth of christs resurrection , the high priest gave large money to the soldiers , matt. . , . will canne therefore hence conclude ; therefore our soldiers now must force our ministers to fly into aegypt till herods death ; leave them neither rectory , personage house , nor vicarige , nor yet so much as a bed , bolster , tithe-hay or straw , whereon to lay their heads ; then nail them to the crosse , peirce their sides with their spears-points , revile , deride them , and at last part not only all their glebes , tithes , goods , but their very garments and gowns between them ? to make them like our saviour . surely if they must and shall do so ; let them beware of another perpetual memento , like the former . these things therefore , the souldiers did : so the souldiers took the money , and did as they were taught , by canne and popish priests and jesuites . . the apostles who succeeded our saviour in those dayes of persecution , were thus handled , by pauls own relation , cor. . , &c. we are made a spectacle unto the world , unto angles and to men : we are fools for christs sake , we are weak , we are despised : even to this present hour , we are hungry and thirst , and are naked , and are buffeted , and have no certain dwelling place , we are reviled , persecuted , defamed ; we are as the filth of the world , and the off-scouring of all things unto this day . if all ministers in times of peace and settlement must be like the apostles , in not receiving tithes ; then they must be like them too even in setled christian kingdoms , states , churches , in all these their particular sufferings ; and have no certain dwelling place , &c. and if so ; let canne and his new ministers of the gospel ( as they stile themselves ) begin the president ; of whom our ministers may now say , as paul did of the corinthians in the precedent verse of this chapter , v. . now ye are full , now ye are rich , ye have reigned as kings , without us : ( when as most of them were very poor , and far enough from reigning as kings , or so much as petty constables before these unhappy wars , and in dayes of former persecution , when canne himself durst not shew his face in england for fear of a bishops power , or high commission pursuivant ; nor durst reproach our orthodox protestant pious ministers , and parliaments as antichristian , popish ; and compare their laws for ministers tithes , with the very idolatrous statutes of omri and ahab , as he doth now p. . ) for which he might have taken a turn at tyburn , in steed of walking freely in westminster hall , without being questioned for this his impudent high slanders both of our laws and parliaments , as well as ministry . . if the ministers of the gospel be bound to imitate the apostles in all things ; then they must not have gold nor silver , nor brasse in their purses , neither scrip , nor two coats , nor yet shoes , nor so much as two staves , but sandals only on their feet , mat. . , . mark . , . as the capuchin-fryars mendicants hence conclude : this being a positive precept , the objected examples of the apostles , &c. only a president . and if so , not only all our ministers , but canne and all his administrators , must turn fryars mendicants too in good earnest ( who ground their vow of voluntary poverty on this text ; and the objected presidents of christ and his apostles ) and so become no ministers of christ , but antichrist , and as truly antichristian as these fryars are , the * heads , ringleaders of our last sect of quakers . . if our ministers must all now be like those of the primitive times , whiles under persecuting heathen emperours , kings , magistrates , then all saints and christians too in our daies , times , must imitate and be like the saints , christians in those dayes : they must sell all their old and new purchased lands , houses , lordships , palaces , lay all the mony down at the ministers feet , and have all things in common like the real saints and christians in the apostles times , acts . . to the end ; and instead of lording , feasting it in their new acquired royal , episcopal palaces , and mannor houses , they must wander about in sheep-skins , and goat-skins , in d●sarts , mountains , dens and caves of the earth , being d●stitute and afflicted , like the saints of old ; yea , and like them they must be tortured , tormented , not accepting deliverance , have trials of cruel mockings , scourgings , bonds and imprisonments , be stoned , sawn asunder , slain with the sword , instead of slaying , plundering , imprisoning and sawing others asunder with the sword , heb. . , to . and when our army-saints , officers , souldiers , anabaptists , quakers , with other tithe-oppugners , who presse this objection against ministers tithes , shall lay down all their arms , commands , power , lands , and sell all they have , to become like to all these primitive saints and martyrs of christ in their sufferings , in times of persecution , i doubt not , but our ministers will joyfully part both with their glebes , rectories , tithes , and setled maintenance to sympathize with them in their persecutions , sufferings . but till such hard times of persecutions come , and they begin to follow this president of the self-denying primitive saints , i hope they will not make all our ministers present martyrs in their tithes and setled maintenance , nor enjoyn them alone ( but not themselves ) to follow the primitive ministers of the gospel in those times of persecution ; and prove greater persecutors to them in these pretended times of christian liberty , law , justice , than the late oppressing prelates and high commissioners , who suffered many of them ( though non-conformists ) to enjoy their tithes , glebes , offrings , and not eject , disinherit them and their successors for ever , of their antient glebes , tithes , and other setled maintenance , without any legal trial by their peers , or conviction of any treasonable crimes against our known laws , for which they deserve to forfeit them ; and all under the false petence , that tithes are jewish and antichristian under the gospel ; which i hope i have sufficiently refuted ( being established on them by christian kings , states , parliaments , immediately after the primitive persecutions , generally throughout christendome , as the fittest maintenance of all other , and particularly in our realm ) when as the abolishing of them will be really such in the judgement of all godly protestants , patrons of religion , both at home and throughout the world. finis . errata . page . l. . r. luent , p. . l. . solemanum , r. salmurum , rothingue , r. rothomag . p. . l. . trovomala . the remainder , or second part of a gospel plea ( interwoven with a rational and legal ) for the lawfulness & continuance of the antient setled maintenance and tithes of the ministers of the gospel : wherein the divine right of our ministers tithes is further asserted : the magistrates inforcement of the due payment of them by coercive penal laws , when substracted or detained , vindicated : that they are no real burden , or grievance to the people ; the abolishing them no ease , benefit to farmers , tenants or poor-people ; but a prejudice rather ; and a gain to none but rich land-lords , cleared : that the present opposition against them , proceeds not from any true grounds of conscience , or real inconveniences in tithes themselves , but only from base covetousness , carnal policy , want of christian love , charity to , and professed enmity against the ministers of the gospel ; yea , from a jesuitical and anabaptistical design to subvert , ruine our church , ministry , religion ; and bring a perpetual infamie on our nation , and the reformed religion here professed . by william prynne of swainswick esq a bencher of lincolns inne . cor. . even so hath the lord ordained , that those who preach the gospel , should live of the gospel . cyprian , de unitate ecclesiae . domos tunc & fundos venundabant , thesauros sibi in coelo reponentes : at nunc de patrimonio nec decimas damus ; & cum vendere jubeat dominus , emimus pötius & augemus . petrus blesensis , epist : . per prophetam praecepit dominus decimas inferri in horreum suum ; vos ab ejus horreo jubetis auferri , &c. quid interest equos rapiatis an decimas ? nisi quia decima res spiritualis est , & ideo enormius sacrilegivm in decimis committitur quam in equis . cum dominus praecipit decimas solvi , quis contra ejus praeceptum potuit dispensare ? london printed by t. childe and l. parry for edward thomas , and are to be sold at the adam and eve in little britain , . the remainder or second part of a gospel plea , for the lawfullness and continuance of the antient setled maintenance and tithes of the ministers of the gospel . king david a holy zealot a after gods own heart , who fulfilled all his will , records this to posterity in sacred writ , as the most transplendent character of his own real saintship , in a divine appeal to god himself , psal . . . the zeal of thine house hath eaten me up . and when our saviour christ , b the son of david according to the flesh , out of an enflamed zeal against the sacrilegious prophanation of gods temple in jerusalem , made a scourge of small cords , wherewith he drove all that sold sheep and oxen , with their cattel , out of the temple ; powred out the changers mony , overthrew their tables , and said unto those that sold doves , take these things hence , make not my fathers house an house of merchandize : his disciples upon this occasion remembred and applyed this very scripture to him , the zeal . of thine house hath eaten me up , john . , , . but the preposterous zeal of many iesuited anabaptistical quaking pretended saints , souldiers , zealots in our degenerated dayes , is diametrically contrary to this of david , and our saviour christ , even to devour and eat up gods house it self , with all his faithfull ministers remaining tithes , rectories , glebes , maintenance at one meal , which of late years , and now again they have prosecuted with such eager appetites and hungry stomacks , that they make it their very prime , main , only businesse , endeavouring to effect it , with such c post-hast , as might anticipate all new printed pleas for their just defence , and fore-judge most ministers , patrons , peoples rights , throughout our nation , ( even out of term in a long vacation , as in august . and now again ) without any legal summons , process , tryal by their peers before competent lawfull judges , meet to decide such a universal right , title , publike interest , which more or lesse concerns every particular county , city , parish , minister , patron , person throughout the realm ; and therefore ought not to be drawn into question , much lesse decision , without their general consent , desire , petition , and a full deliberate hearing of all parties interessed before a full legal parliamentary tribunal , duly elected , entrusted by all the people , according to d our laws ; this being an undoubted principle of nature , law , equity , common justice , and reason , e quod tangit omnes , ab omnibus debet approbari : et populi minor pars , populum non obligit . this their preproperous speed , and preposterous proceeding , necessitated my stationer ( at the importunity of some ministers in september . ) to thrust out and publish to the world , an imperfect piece , and beginning only of my gospel-plea , for the lawfulnesse and continuance of the antient setled maintenance and tithes of the ministers of the gospel , without this remaining part , ( then sent up together with it ) or any errata to it , or notice given to the reader if its incompleatnesse , some few dayes before the great debate of our new legifers ( septemb. . ) concerning the future standing or down-fall of tithes ; which would have been finished , and quite past before the whole could possibly be printed ; and so have rendered the entire plea lesse seasonable , serviceable , beneficial to our church and ministers , than the publishing of a fragment of it in that nick of time proved to them , through gods blessing on it . this unexpected sodain publication thereof upon that inevitable occasion , as it caused an omission of some part of the second chapter in confirmation of the second proposition , touching the divine right of ministers tithes , and of the . ensuing chapters : so it hath necessitated me to publish this subsequent appendix to that chapter by way of supplement , as a necessary introduction to the remaining part , here printed with it , for the readers better satisfaction in this publique controversy , and stopping the clamorous mouthes of all gain-sayers . which had been published , soon after the former , in the year . had not my former stationers long infirmity , sicknesse , death , retarded its progresse at the presse , and enforced me to seek out another midwife to bring it into the world , at this instant time , i hope not as an abortive , out of season , the former opposites to our ministers and their tithes , being ever since and now again as malicious against them as ever , waiting only for a fresh oportunity to suppress them , ever since their then sodain defeat in this their impious sacrilegious designe , when almost ripened to accomplishment in their hopes and votes , unexpectedly dashed in a moment . there being since this their disappointment , a new disguised antichristian sect of quakers ( introduced by jesuits and franciscan friers , as i have * elswhere evidenced ) sprung up amongst us , more virulently opposite to our ministers and their maintenance by tithes , than any other , which they not only decry in all their pamphlets , but totally substract and detain from them with such wilfull obstinacy , that many of them chuse rather to lye in prison , upon mean processe , or executions , than set out or pay their tithes , or appear to actions brought for their recovery ; and now combine with the anabaptists , and other sectaries in fresh petitions and prosecutions both against tithes , and ministers , endeavoring their total and final extirpation , by the power of their confederates , in the army and westminster juncto , sodainly called in again , and owned by them as a parliament ( after their former six years seclusion ) to * accomplish this their design , and root out law and gospel , lawyers and ministers together , as their fresh * petitions , addresses to them for that purpose clearly demonstrate , beyond contradiction . which occasioned this publication , after so long a suspension thereof . an appendix to the second chapter , further clearing the divine right of ministers tithes . the divine right of ministers maintenance by tithes , asserted in the former printed part of my gospel-plea , &c. for the lawfulnesse and continuance of the antient setled maintenance and tithes of the ministers of the gospel , may be thus further evinced , demonstrated , confirmed . . it is the opinion of learned (f) petrus cunaeus , and (g) dr. griffith williams ( his transcriber ) that melchisedec , priest of the most high god , to whom abraham ( the father of the faithful ) gave tithes of all , gen. . . hebr. . . to . was in truth none other , but jesus christ , the sonne of god , then personally meeting him in the form of a man , which he then assumed ; though not that very body or flesh begotten and born of the virgin mary , which he long after took upon him when he was incarnate and conversed upon earth . that abraham then gave him tithes of all , as perceiving under that visible form an invisible deity and everlasting priesthood to subsist , to whom tithes ( originally ) are only due & eternally due ; because he is and continues for ever an everlasting priest . that our saviours own words , john. . . abraham rejoyced to see my day , and he saw it , ( as well with the eyes of his body , by this special apparition of christ then meeting and blessing him , as a priest of the most high god , at that time , as with the eye of his faith ) and was glad : do warrant this their opinion , that melchisedec was no other than jesus christ himself : which they fortify with . strong , unanswerable arguments in the opinions of many ; from whence ( if granted ) it will inevitably follow ; that tithes are more truly and properly evangelical , than ceremonial or judaical , because thus originally given and paid to christ himself , ( the (h) everlasting head , king , high priest of the church ) by abraham (i) the common head and father of all the faithfull ( as well gentiles as jewes ) out of the prevision of his incarnation , in reference to his everlasting priesthood , as an honorary portion , tribute , salary , (k) of right belonging and annexed to his priesthood : hebr. . . to . gen. . , , . which priestly office was (l) principally to be executed , compleated upon earth , and in heaven , by christs subsequent incarnation , passion , sacrifice of himself upon the crosse , resurrection , ascension into heaven , and perpetual intercession at gods right hand for all his elect , both as god and man ; especially in relation to the gentiles , (m) not generally called , converted to the faith , till after his incarnation and ascension . therefore by necessary consequence , all christians and believing gentiles under the gospel , have altogether , if not farre greater , yet at leastwise as great , as strong a reason , ground , obligation , enforcement , chearfully , thankfully , conscientiously , to render tithes of all they have to christ ( for the use of his ministers instruction , edification of his church , and compleating of his body ) since his incarnation and investiture in his everlasting priesthood for their eternall welfare ; as abraham or the israelites had , to render him ( or the levitical priests who typified him and attended on his service ) so long before his incarnation , and priesthood fully compleated in all its parts and offices : jesus christ being the same yesterday and to day , and for ever ; hebr. . . and as much ( if not farre more in some respects ) a priest of the most high god , to all believing gentiles , christians since his incarnation , passion , ascension , as he was to abraham and the jews before them ; god since his resurrection , sending him to blesse us in turning every of us from our iniquities , as well as them . acts. . , . compared with acts . , , . ch . . . to . wherefore those ingrate , avaritious , unconscionable christians of this degenerous age , who obstinately , or maliciously refuse to render unto christ their only high-priest ( (n) who sacrificed himself to god , and shed his most precious blood for them on the crosse to redeem their soules from everlasting damnation , and purchase an eternal crown of glory for them in heaven , where he continually makes intercession for them , executing his priestly office for their salvation ) the tithes of all their increase , as a just appurtenance to his everlasting priesthood ; condemning them as o jewish , antichristian , unfit , or too much for him as the high priest and prophet of his church to enjoy , or for the faithfull ministers of the gospel in his name or right to receive , who p spend all their studies , labours , lives in christs service , in the declaration , publication , application , of the benefits of christs priesthood , passion , gospell to them , and others , for the eternal salvation of their souls , are certainly none of the spiritual sons or seed of faithfull abraham , who gave him tithes of all ; and do either repute christs everlasting priesthood , a mere fable ; or set a far lower rate upon it , the ministry of the gospel and their own most precious souls , than they do upon their detained tithes : and so can expect little benefit from christs person or priesthood , which they so much undervalue , and sacrilegiously defraud of so antient a duty . ly . there is one notable considerable circumstance of time in abrahams payment of tithes of all to christ , the true melchisedec , not formerly observed or pressed by any i have seen ; which ( in my opinion ) unanswerably proves , that this president of his most principally respected , related to the believing gentiles and christians , under the gospel , and as strongly obligeth them ( his true spiritual seed ) to the due payment of tithes to christ and his ministers , now , as ever it did the jews , his natural posterity , to pay tithes to their priests and levites under the law , if not more firmly : namely , that he thus paid tithes to christ , some good space before circumcision instituted , whiles he was yet uncircumcised ; as is most evident by comparing , gen. . , , . with gen. . , , to . now as the apostle thus firmly and evangelically argues from this very circumstance of time , in the point of abrahams justification by faith , whiles he was yet uncircumcised , as presidential , exemplary , obligatory to all believing gentiles , and spiritual sons of abraham under the gospel , who are not circumcised , as well as to the natural believing children of abraham under the law , who were circumcised . rom. . , to . commeth this blessednesse then , upon the circumcision only , or upon the uncircumcision also ? for we say , that faith was reckoned to abraham for righteousnes . how was it then reckoned , when he was in circumcision , or in vncircumcision ? not in circumcision , but in vncircumcision . and he received circumcision , a seal of the righteousnes of faith , which he had yet being vncircumcised , that he might be the father of them that believe ( under the gospel ) though they be not circumcised , that righteousnes might be imputed unto them also . and the father of circumcision , to them who are not of the circumcision only , but also walk in the steps of the faith of our father abraham , which he had yet being uncircumcised . so i , by parity of reason , from this very text , compared with the same apostles relation , of abrahams paying tithes of all to melchisedec , hebr. . , to . and the inferences thence formerly insisted on , may as firmly , as convincingly conclude , that his payment of tithes to christ the true melchisedec , not after his circumcision , but whiles yet uncircumcised , and before circumcision instituted ; and that , as the common-father , head of all the justified , faithfull , believing uncircumcised gentiles before the law , and under the gospel , ( as well as of the circumcised believing jews ) walking in the steps of his faith , which he had yet being uncircumcised ; doth as strongly oblige all believing gentiles & christians , though uncircumcised , to pay tithes of all to christ and his ministers under the gospel , as it did his believing circumcised posterity to render thē to christ himself originally , and his priests and levites secondarily under the law ; if not much more ; since abraham paid them to christ before he was circumcised , q as a fruit and evidence of his faith , which then he had during his uncircumcision , and a standing president for all believers to imitate . ly . from this famous president of abrahams paying tithes of all to melchisedec , saint ambrose , sermo . in feria post primam dominicam quadragesimae . gregorie nazianzen , oratio . contra judaeos . chrysostom , hom. . in genes . isiodor hispalensis , in glossa ordinaria super gen. . rabanus maurus , l. . c. . in genesin . anastatius abbas , contra judaeos . elias cretensis , in orat. walafridus strabo , de rebus ecclesiasticis , c. . stephanus tornacensis , epist . . with other antients , conclude , tithes to be due to ministers of the gospel by divine right : whom the r councils of mentz , anno , , . concilium aquense , anno . cap. . with the council of london , under arch-bishop hubert , anno dom. . ( recorded by roger de hoveden ) annalium pars posterior , p. , . thus second . decimas deo & sacerdotibus dei dandas , abraham factis , jacobus promissis insinuat ; deinde lex statuit , et omnes doctores sancti commemorant : et auctoritas veteris et novi testamenti , necnon & sanctorum patrum statuta declarant . decreeing thereupon , decimas de omnibus quae per annum renovantur , &c. praestare deo omnino non negligatur , quas deus sibi dari constituit : quia timendum est , ut quisquis deo debitum suum abstrahit , ne forte deus per peccatum suum auferat ei necessaria sua , &c. from his example , seconded with divine precepts , ſ gerold bishop of oldenburg , about an. dom. . writ thus to the holzati and inhabitants of the deserts of wagira , ( then newly converted to the christian faith , and beginning to build churches , for gods publick worship ) that they should likewise pay tithes to their ministers , without which all the rest of their devotion would be nothing worth . dei enim praeceptum est , decimas ex omnibus dabis mihi , ut bene sit tibi , & longo vivas tempore : cui obedierunt patriarchae , abraham scilicet isaac & iacob , & omnes qui secundum fidem facti sunt filii abrahae , per quod laudem etiam , & praemia aeterna consecuti sunt . apostoli quoque et apostolici viri ex ore dei hoc ipsum mandaverunt . & sub anathematis vinculo posteris servandum tradiderunt . cum ergo dei omnipotentis proculdubio hoc constat esse praeceptum , & sanctorum patrum sit auctoritate firmatum , nobis id incumbit negotii , ut quod vestrae saluti deest , nostro in vobis opere per dei gratiam suppleatur . monemus ergo & obsecramus omnes vos in domino , &c. ut decimas , prout deus instituit , & apostolica banno firmavit autoritas , ad ampliandum dei cultum ecclesiae detis : ne si deo quae ipsi debentur substraxeritis , & substantiam simul & animam in interitum mittatis aeternam ; valete . upon reading which letter the rude people cryed out and raged , just as the anabaptists do now . his auditis tumultuosa gens infremuit , dixeruntque se huic conditioni servili nunquam collum submissuros , per quam omne pene christicolarum genus pontificum pressurae subjaceat , &c. whereupon henry the first duke of holzatia commanding them , as they would obtain his favour , ut solverent episcopo decimas cum omni integritate , sicut faciunt in terra polaborum & obotritorum : ad hoc praeceptum holzati obstinatis animis dixerunt , nunquam se daturos decimas , quas patres sui non dedissent ; malle se potius succenfis aedibus propriis egredi terram , quam tantae servitutis jugum subire ; praeterea pontificem cum comite & omni advenarum genere quod decimarum solvit legitima , interficere cogitabant , & terra inflammata , transfugere in terram danorum . neither obeying the presidents of abraham and the patriarchs , nor the laws of god , the apostles , or their prince , in paying their tithes to their bishop and pastor , as they ought ; whose practice our anabaptists and quakers now obstinately pursue . what strong convincing arguments , to prove the divine , moral , perpetual right of tithes to the ministers of the gospel , learned protestant divines ( to omit papists ) have deduced from this original direct president of abrahams tith-paying , those who desire further satisfaction herein , may read at leasure , in mr. calvin , junius , hemingius , and others on hebr. . zepperus , legum mosaicarum explanatio , l. . c. . dr. george carlton his tithes due by a divine right , richard montague his diatribae on the first part of mr. seldens history of tithes , cap. . stephen nettles his answer to the first part of the history of tithes , dr. robert tillesley his animadversions on mr. seldens history of tithes , dr. edward reynolds his explication on psalm . , . mr francis roberts his revenue of the gospel is tithes , &c. cambridge . richard eburn his maintenance of the ministery , london , . the truth of tithes discovered by r. g. london . dr. john prideaux oratio . de decimis , anno . p. . sir james semple his sacrilege sacredly handled , london . john swan his redde debitum , london . p. , to . tithes are due jure divino , and dr. william sclater his question of tithes revived , or ministers portion , london . ( an acute piece ) wherein all evasions and cavils to elude the force of this example , are sufficiently answered . ly . from this example of abrahams , seconded with the israelites practice , t mr. selden conjectures , or rather from the law of nature written by god himself in mens hearts ( as hugo de sancto victore , de sacramentis , l. . parte . c. . & l. . parte . c. . mr. mountague in his diatribae , ch . . dr. tillesly in his animadversions , p. , . and others determine ; ) the old heathen grecians , romans , carthaginians , arabians , with other pagan nations , [ as the u mahometan , turks , moors , and other infidels since ] by an antient constant custome and usual practice , generally received amongst them , dedicated and paid tithes to their idol-gods and priests , of the encrease of all their substance , merchandize , gains ; and more particularly of all their spoyles and plunders gained in the wars ; wherein they were very carefull and devout . which mr. selden in his history of tithes , ch . . and review thereof , and richard mountague , in his diatribae , ch . . evince at large , by many presidents , testimonies , passages out of herodotus , demosthenes , xenophon , thucidides , dionysius hallicarnasseus , plutarch , pausanias , aristotle , aristophanes , suidas , callimachus , cassius , trogus , macrobius , plautus , festus , justin , pliny , servius , cicero , tertullian , arnobius , jac. gruterus , with others ; and that they paid no other determinate part else we read of , but a tenth only , to their gods and priests . now from whence ( write hugo , tillesly , and mountague ) should this custome and practice proceed , but only from the law of nature ? ad quam non docti , sed facti , non instituti fuerunt , sed imbuti , and that by god himself . amongst these presidents of pagans , there are . of special note , which i shall here remember , to shame the tith-oppugners of our age , who would be reputed the most precious christians , though their actions prove them worse than infidels . the first is , that of the old pagan romans , x who esteemed all their corn and wine ( sent them annually by the bounty of god ) so sacred , that ( by a constant custome and law used amongst them ) they might not lawfully eat , drink , sell , meddle with , or dispose of any part thereof after their harvest and vintage , till they had first sacrificed and tythed the first fruits and tenths thereof to their gods ; who ( as they supposed ) gave them the whole crop ; such was their piety and gratitude . the second is , that of the antient y heathen arabians , who by the law and custome of their country , were bound to carry all their frankincense ( the chief commodity of their country ) every year to sabota , ( the chief city of arabia felix ) and there to offer the tenth thereof to their god sabis , which his priests received . neither might they make sale of any part thereof , till the owner there paid the tenthes by measure , not by weight . these very pagans holding all to be gods , ( the supream land-lord who gave it them ) till by paying him the tenth for a quotient , they redeemed the rest for their own common use . the third is that of the z pelasgi in vmbria , who being oppressed with a great dearth and scarcity of all things , conceived it proceeded gods. whereupon they vowed the tithe of all their increase to iupiter , apollo , and the cabiri . after which vow they receiving a plentifull crop of all things , paid the tenth of all their increase to their idol-gods . and being admonished by apolloes oracle , that their vow was not performed , till they had sacrificed the tenth of their children , as well as of all their other increase , they thereupon sacrificed the tenth of them to the idols likewise . such conscience made they of all their vows and tithes . the fourth is that of the carthaginians ( thus recorded by a diodorus siculus , a pagan historian ) very remarkable . the carthaginians being descended from tyrus , were accustomed in former times to send unto tyrus the tenth of all their revenues & increase any ways renuing , issuing , or growing , for hercules ( the idol-god there worshipped : ) but in processe of time becomming very wealthy , and having exceeding great incomes , they sent very seldome their tithe unto tyrus , and that but small and refuse , in neglect and dis-regard of the deity . hereupon many disasters in war , crosses in affairs of state , with great losses and streights befell them ; especially by agathocles the sicilian . upon which , comming home to themselves , and repenting of their irreligion , they betook themselves to all manner of supplication and devotion , conceiving these losses and disasters were sent unto them of god. and for so much as they supposed hercules especially to be angry with them , who was chiefly worshipped at tyrus , from whence they were originally extracted , they sent exceeding great gifts and rich presents thither to him , and all the gods that were worshipped at tyrus , and brought unto them the tenth of all their increase , as formerly they accustomed . the fifth is that of b demosthenes ( that eminent pagan greek orator ) who is very bitter against androsion and timocrates , for bearing with some sacrilegious desrauders of the gods in their dues ; and much more for defrauding of themselves , and sacrilegiously robbing minerva of her tenths , and the other gods of their fifteenths . and he specially observes , ( let our souldiers remember it ) that those who purloyned and robbed the gods of their tenths and chiefest of their spoyles of war , came to nought , being destroyed by themselves at last and undone . the sixth is that of xenophon ( that noble heathen philosopher and general ) and his soldiers , thus recorded at large to posterity by his own pen , worthy our observation . xenophon , after his memorable retreat with ten thousand men out of upper asia , where they had gained great spoyles from the enemy , arriving safely at cerasunt , mustred men , the rest being lost , partly by the incursions of the enemies , partly by the snows , and partly by sickness , here they divided the mony they had gained from the enemies : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. atque etiam decumam , quam apolloni & ephesiae dianae exemerant , ita duces distribuunt , ut quilibet ipsorum bisce diis aliquam partem ejus adservaret ; one part of this tenth separated to these two deities was delivered to neon . that part which xenophon collected for apollo , he laid up as consecrated in the treasury of the athenians at delphos . but that which was dedicated to diana he left with megabyzus the churchwarden of diana , upon this condition ( being about to fight with agesilaus at coronea , ) that if he escaped safe out of the battel , he should restore the sacred mony to him : but if he received any disaster therein , that then megabyzus himself should dedicate it to diana , confecto donario , quod deae gratissimūfore arbitraretur . afterwards xenophon being in exile at scilunte , built for olympia , megab . comming thither to behold olympia , restor'd the mony to xenophon : who receiving it , bought therewith a field ( having woods & mountains in it , stored with trees , swine , goats , sheep , wildbeasts , and horses , ) for the goddess in that place , which was shewed unto him by the oracle of apollo ; he likewise built a temple , & an altar , out of that sacred money : ac post id temporis , semper consecratis fructuum agri decumis , sacrum deae faciebat . and after that time he sacrificed to the goddess , for ever consecrating the tenths of the field to her service . near the temple there was a garden set with all sorts of fruit-trees good to eat . before the temple were pillars erected with this inscription on them , fundus dianae sacer. hoc qui poss●ssor fruitur , quotannis consecrato decumam ; de reliquo fanum sartum tectum conservato . si quis non fecerit , dèa vindex esto . in which memorable historie we have six things considerable : . tithes of spoyls consecrated by the heathen graecian generals , captains and souldiers , to apollo and diana , as * agis after the end of the wars between the elei and the lacedemonians , going to delphos offered a tenth ( of the spoils ) to apollo . and agesilaus took the fruits of his enemies fields , ut intra biennium decumam delphico deo consecraret c. talentis ampliorem : as the same * xenophon records . ly . lands purchased with the spoils , and appropriated , consecrated for ever to the worship and service of diana . ly . a temple , and altar built with part of the spoils , for her worship and honour . ly . tithes annually consecrated and to be paid for ever to this temple , by xenophon and the possessors of these lands , out of the profits , venison and game thereof , for the maintenance of her worship and feastivals ; as the former words , and this passage farther evidenceth : earum feriarum , & municipes , & finitimi , tam viri , quàm faeminae participes erant : & sumministrat eis dea , qui agitant convivia , farinas cum panibus , vino , pecunia , bellariis . ly . repairs of this temple from time to time , out of the residue of the profits of these lands . ly . an imprecation of divine revenge , upon the neglecters , or refusers of the due payment of these annual tithes to diana , and of the residue of the profits , towards the reparation of her temple . the seventh is the memorable domestick president of cedwalla , one of our west-saxon kings ; who though a pagan and great plunderer , even before he became a christian , or was baptised , was so pious , that he gave the tenth of all his spoyles of war and plunders unto god , about the year of our lord , . which c william of malmesbury thus records . arduum memoratu est , quantum etiam ante baptismum inserviret ; ut omnes manubias , quas jure praedatorio in usus suos transcripserat , deo decimaret . in quo etsi approbamus affectum ( in paying tithes ) improbamus exemplum , in regard of his plundering . yea , our d venerable beda records ; that such was his transcendent liberality and bounty to gods church and ministers , that after his conquest of the isle of weight , he gave to walfred and his clerks for the lords use , the fourth part of the island ( to wit , plowlands of . ) and the fourth part of the spoyl thereof , in performance of his vow made before his regeneration in christ , that if he conquered the isle , quartam ejus partem fimul et praedae deo daret . let iohn canne , with all the several irreligious sects , and sacrilegious regiments of our present tith-oppugners , detainers , substracters , seriously consider these pagan presidents , to inform their judgments , & reform their practices , lest they rise up in judgement against them here to their temporal , and hereafter to their eternal condemnation . and if after due meditation on them , their consciences shall not secretly check , censure , condemn them , for substracting their tithes from god himself , and his faithfull ministers , as well as some of these pagans consciences did them , for detaining their tithes from their idol-gods and priests , against the law of natures dictate engraven in their hearts ; but still pretend conscience against the due payment of them , and that out of their gains or spoyles of war , as well as their other increase ; they have just cause to fear , and others to suspect , that their consciences are most desperately cauterized , and the law of nature more dangerously obliterated out of their hearts , than out of these idolatrous pagans . ly . agobardus , who flourished anno . lib. de dispensatione , &c. rei ecclesiasticae contra sacrilegos , p. . hugo de sancto victore erud . theol. de sacramentis , l. . parte . c. . lib. . part . . c. . part . . c. . and annot. eluc . in genes c. . petrus commestor , hist . scholast . in genes . c. petrus blesensis , epist . . gerold , bishop of oldenburge , in his epistle to the inhabitants of wagria ; helmoldus , hist . solavorum , p. . positively affirm ; and since them sir james semple , in his sacriledge sacredly handled , stephen nettles , in his answer to the jewish part of mr. selden , and mr. richard mountague in his diatribae , p. . to . largely argue and assert ; that from the beginning of mankind , tithes were instituted and appoin - to be paid , by god , who instructed adam himself ; and he his two sons kain and abel ; and they their posterity , to pay tithes and first-fruits to god , of all their increase . that the first-fruits abel offered unto god , were no other but his tithes , or the tenth of his flocks increase . that the sin of cain , causing god to reject his offering , was this , that he offered to god the worst , and lesse than the tenth of the fruits of the ground ; giving him not the full proportion of the tenth and best of his increase , as abel did : which they ground on , gen. . . ( thus translated by the septuagint , whom philo the jew , and the greek fathers generally follow : ) if thou offer rightly , and divide not uprightly ( in giving me my tenth ) thou hast sinned ; hold thy peace ; and on hebr. . . by faith abel offered unto god 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( which the vulgar latin renders , plurimam hostiam ; other translators , vberius sacrificium ; and the english , a better or more excellent sacrifice ; ( and that for quantity , as well as quality , ) than kain : this i thought fit to mention , as a probable conjecture , not an infallible verity . to back this opinion , robert grosted our learned bishop of lincoln , in his book , de cessatione legalium , ( written about the year . ) p. , . determines , lex naturalis exigit , ut benefactori , de bonis quae gratis dederit , gratis rependatur honor & veneratio , unde & decimarum oblatio de lege est naturali : quia de bonis acceptis cum debeatur lege naturali repensio honoris , minus quàm pars minima , id est decima , ( quia ultra denarium numerus non est ) rependi non potest . master mountague , in his diatribae , chapter . page , , , &c. doctor sclater , dr. tillesty , and others observe , that god only wise , being e a god of order , not of confusion , doing all things in order , number , and due proportion , hath amongst all other numbers , specially fixed upon a tenth . and thereupon the antients heretofore , both natural , legal , pagan , and christian , ( led by a natural and divine instinct thereunto ) have ever principally insisted on a tenth in all their divine sacred rites , mysteries , dues , reserved by , or rendered of them to their gods ; and in all their publick civil taxes , tributes , customes , duties , imposed by , or paid to their emperors , kings , princes , and supreme magistrates . hence god saith expresly , all tithes are the lords , levit. . , &c. and how his ? not by cou●tesie or tolleration , not by purchase or stipulation , not by compensation or annexation , not by benevolence or mens free donation ; but by original right of creation , in producing every thing in its kind ; and of absolute soveraign dominion ( expressed in the word f lords ) as a universal rent service or acknowledgement , reserved by god himself , the supreme land-lord of all the earth , from adam and all his posterity to the end of the world , g when he gave them the earth to inhabit and manure , as mere tenants at will under him . he that is h i am himself : qui cepit nunquam , desinet numquam : b●ing vitae & essentiae interminabilis , tota simul & perfecta possessio , in aeterno suo consummato , ever possessed tithes ( as well as the seventh day , which he saith , is , i his sabbath ) since they had being , which are indeed his ab aeterno suo inchoato . in this tithes were gods , not only at the time when he first challenged them by an expresse written law and reservation , levit. . , , , &c. but long before ; even when abraham paid them : and before that , ever since the time of the creation , that god made any thing tithable to increase out of the earth for the use of man. the time never was that tithes were not gods , nor shall ever be that they shall cease to be his , and his priests and ministers in and by him , by his special donation and institution ( not mans ) for the constant support of his continual publick worship ; and that by a divine right ; god in those things which are direct points of piety and necessary appurtenances for his solemn worship , ( such as are tithes for his priests and ministers competent standing maintenance in all ages , places , and weekly times for his worship ) never leaving men free to their own wills , inventions , or arbitrary pleasures ( no more than land-lords their tenants , or kings their subjects ) but confining them to a certainty himself by his word , as well as he doth it in all parts and duties of his worship . that abraham knew this divine right of god to tithes , when he paid tithes of all to melchisedec , not arbitrarily , but of due right , by vertue of some divine precept , ( else k melchisedec had been inferiour to levi who received tithes from his brethren , by a divine law and command , hebr. . , , , &c. ) he receiving this precept of paying tithes by tradition from heber , who learned it of sem , who was so taught of his father noah : he by succession receiving it from adam ; who as he was wrought and fashioned by god , so was he herein taught and instructed by god. and therefore not only amongst the sons of god , such as called rightly upon the name of the lord , but even amongst the giants of the daughters of men , worshipping invented gods by themselves , and dedicating their tithes unto them ( as the premises evidence ) there never was number that did intrude upon the tenth , much lesse shoulder it out of doors . this number of ten ( writes philo the learned jew ) that most sacred writer moses hath not a little commended , because the best duties of man are by him couched under that number , as god : ten commandements , vows , prayers , first-fruits , perpetual offerings , pardoning debts , and reducing all things unto their first estate , every fiftieth year of jubilee , ( made up of tenths ) the fur niture of the tabernacle , with a thousand such like in the old testament ( besides other things of like nature expressed under this number of ten in the l new ) by which we may know , that ten is the nvmber of perfection ( as ●ivers style it ) and hath near affinity with god in sacred things . that from gods own original reservation of tenths to himself and his ministers , this number became sacred and universal afterwards in all publick civil taxes , dues , reserved to kings and supream magistrates . for the first-born and chief of the family , from adam , till the levitical priesthood instituted , being for the most part king as well as priest thereof , ( as melchisedec who received tithes of abraham was , gen. . . heb. . , . ) when these two offices came afterwards to be centred and settled in two distinct persons , thereupon the antient tenths ( reserved by god , and assigned to his priests and ministers in perpetuity , for their subsistence and maintenance of his publick worship , from the creation to the end of the world , by a divine law , which no humane powers could repeal ) both amongst gods own people , and most heathens nations ; were appropriated to , and received only by the priests and ministers , though divested of the royal dignity ; and a new tenth , by way of tribute , tax , custome , or subsidy ( amounting commonly to the tenth part of the people 's tithed increase and estates , in all kingdomes and republiks ) was by common consent imposed on and reserved , received by emperors , kings princes , and supreme magistrates from the people , for their support , defraying the charges of the government , and their peoples necessary defence upon all occasions . hence tributes , taxes , customes and publick impositions , were usually called tenths ( as well as ministers tithes ) both amongst gods own people , sam. . , . ( amounting to the tenth of their estates and increase ; as also amongst the antient romans , grecians , and most other pagan nations of old , ( as mr. mountague proves at large in his diatribae , c. . by sundry authors ) as they were anciently and at this day so stiled , both m amongst the turks , moors , spaniards , germans , italians , french , danes , swedes , poles , scots , irish , and most other pagan and christian nations at this day ; especially in england , as you may read at large in rastals abridgments of statutes , title taxes and tenthes ; brooks abridgement , and ashes tables , title quinzime , disme , tax and tallage , and our parliament records . and from this number of ten their officers as well of state as religion , were usually stiled , decemviri , decuriones , decumani , decani , decadarchae , decatutae , decatologi , decatorii , and the like ; our names of offices of deans , tithingmen , collectors of tenths , &c. proceeding from the self-same number ; sacred every way even amongst pagan nations , both in their duties of piety and policy , by constant tradition , they knew not why nor wherefore , and likewise amongst gods people , upon the premised grounds . hence doctor tillesley thus concludes in his epistle to king james , before his animadversions on mr. seldens history . surely the number tenth or tithe is sacred and very mystical , and communicated only to consecrated or sacred persons that are gods vicars upon earth ; that is , kings and priests : decima regis et decima sacerdotis ; who both stand in gods place , and receive this portion as gods upon earth . from all which premises , mr. mountague , dr. carlton , dr. tillesley , dr. sclater and others conclude ( and let our army officers , new legifers , and all tithe-oppugners consider it ) that the ministers of the gospel now , as well as gods priests heretofore , have an eternal right to ecclesiastical tithes , by gods own unalterable institution ; and none else any right at all unto them but they ; from which right no man , nor all men can deprive or debar them ; by any pretended right , prescription , modus decimandi , custome , vsage , law , statute or appointment of any other maintenance in lieu thereof , as more just , equal and convenient . . tithes being originally due and paid to jesus christ himself , n god over all blessed for ever ; yea specially , reserved by , appropriated , consecrated to our lord god , as his peculiar holy portion , tribute , rent , right , inheritance , homage , from the sonnes of men , for the constant maintenance of his publick worship , and support of his priests and ministers attending thereon , to the end of the world . lev. . , . numb . . , , , . mal . , . heb , to . cor. . , to . and thereupon being usually stiled , both by o fathers , p councils , q popes decretals , r princes edicts , and christian writers in all ages , dominica substantia , res dominicae , dei census , dei debitum , &c. non ab hominibus , sed ab ipso deo institutae : quas deus in signum universalis dominii sibi reddi praecepit , suas esse decimas asseverans , &c. the constant payment of them to ministers under the gospel , is not only warranted , commanded by the equity and words of the , , , , & . commandements of the decalogue , ( therefore far from being a sin against the d. commandement , as ſ john canne most absurdly and impudently asserts ; as if gods precepts were repugnant to each other : ) but likewise expressely , positively , eternally , prescribed by our saviour christ himself , in this peremptory gospel-precept , recorded by three evangelists , matth. . . mar. . . luke . . render therefore to caesar the things that are caesars ; and unto god the things that are gods . thus seconded by the apostle paul , rom. . , . render therefore to all their dues , &c. tithes ( as the premises evidence beyond contradiction ) have gods own image , impresse , superscription , as visibly , as legibly engraven on them by himself , as any tribute-money then shew●d our saviour , had caesars , by the mint-masters ▪ yea , they were gods own antient , standing , constant , known tribute , at that very season when christ uttered this precept , and some thousands of years before , specially reserved by , and duly rendered unto god and his priests , by all gods faithfull people , many hundred years before we read of any tribute-mony paid to caesar , or any other king or prince . upon which ground , as they were then , ( by this direct gospel-commandement of christ himself ) enjoyned to be as constantly , duly , truly paid to god and his ministers , as any tribute , tax or customes are unto caesar , or other higher-powers whatsoever : so they have since our saviours daies ( except only in times of greatest persecution under pagan emperors , during which some tithes were rendered to gods ministers in some places , or things of greater value , as i shall prove anon ) been still continued and universally paid to god in his ministers , in all or most christian churches , realms , republicks , from the first publick imbracement of the gospel amongst them , to this present , and more especially in this our realm , as mr. john selden in his history of tithes , doctor tillesley , tyndarus , rebuffus , with others prove at large ; and the author of respublica , sive status regni poloniae ( lugduni bat. . p. . ) thus attest , for the church and clergy of poland , habent etiam decimam omnium segitum , publico principum ac totius poloniae consensu iam inde ab initio susceptae religionis christianae attributas , & aliis quibusdam pensionibus cumulatas . habent & luculentos fundos , praedia , pagos , oppida , arces , & territoria ; partim priscorum ibidem principum & regum ; partim privatorum munificentia adjectas ( as they likewise had in t ours , and other christian realms ) yet he afterwards subjoynes and complains , as we may justly do , nunc passim in alienas donationes ac decimas invaditur , longe majore avariciae rapacitatisque infamia , quam egestatis relevatione . therefore gods and our ministers tithes , being by our lord jesus christs own gospel precept thus positively commanded to be constantly and duly rendered unto them , as well as tribute unto caesar ; no consciencious loyal christians , but professed atheists , antiscripturists , rebels unto god and christ , can justly , or by any pretext of conscience , refuse the due , constant payment of them , no more than of lawfull tributes and taxes legally imposed on them by common consent v in free and lawfull parliaments ; nor any caesars , kings , princes , magistrates , or supreme powers , denie , defraud or deprive them of their tithes and dues , upon any pretext , without impairing , impeaching , subverting their own rights and titles to those civil tenths , tributes , which they challenge and receive from the people as their due , by this very precept of our saviour , which couples gods dues and his ministers together with their own ; the inviolable preservation whereof , is the best and readiest means to secure their own tenths and civil dues . whereas these princes , potentates , powers , grandees , legifers , who are so sacrilegiouslie injurious as to invade , impair , diminish , substract or abolish , gods and his ministers tithes , duties , or divert them to pay their souldiers , or any other publike or private use , will thereby but undermine their own interests , and teach the people how to defraud , substract , deny their own antient civil tenths , customes , duties , taxes , rents , and new impositions , excises of all sorts , by way of retaliation ; most of the anabaptistical and levelling present petitioners against tithes and glebes , petitioning , declaiming likewise against all customes , imposts , taxes old or new , as x intollerable grievances and hinderances to free trade ; and many of them asserting , all civil supreme powers and magistrates whatsoever , as antichristian and unlawfall , as tithes and ministers are in their false account . lastly , all opposites to our ministers tithes do , and must of necessity acknowledge ( from the scriptures insisted on in the first proposition , and reasons there alleged ) that some competent maintenance , salary , recompence , reward , or other ( arbitrary as they hold , certain and setled as we assert ) belongs to the ministers of the gospel by a divine , moral , natural right , justice , and equity ; as all grant a sabbath ( and government ) in general to be of divine authority , institution , and morally due to god. now the whole church of god from the creatiō to this present , ( though under various dispensations in the times of the patriarchs , law and gospel ) being but y one intire corporation or spiritual body-politique , wherof jesus christ himself is the only head , king , lord , law-giver , high-priest , chief pastor , minister , advocate , saviour , foundation , corner-stone ; and the successive priests , ministers and members thereof from the beginning to the end of the world , serving , worshipping , adoring , only one and the self-same true , z immutable , invisible , eternal lord god , according to his prescribed will and word : and jesus christ himself ( the only high priest of this church for ever ) receiving , and god his father prescribing tithes for the maintenance of his priests and levites , both before and under the law ; and no wayes abolishing , but ratifying them in and by the gospel , as i have already proved . there neither is , nor can be any other particular kind of competent , fitting , standing , setled maintenance , reward or recompence for all the ministers of the gospel evinced , demonstrated out of gods word , which may be truly reputed moral , natural , divine , universal , perpetual and unarbitrary ; nor any other duly rendered from all christians in all ages , places , a in faith , conscience , and sincere obedience towards god , as such a maintenance , but this of tithes alone , independent on the lusts & wills of men : it being that which the patriarchs , ( no doubt by gods prescription being paid in faith ) both vowed and paid to god before the law ; which god himself afterwards specially reserved , prescribed , and all his people duly rendered under the law ; annexing many promised blessings to the true payment , denouncing many threats , curses to the sacrilegious substraction or detaining of them ; that which christ himself and his apostles most specially pointed at , commended , ratified in the gospel ; that which all christian kings , states , magistrates , churches , christians under the gospel in all ages , places have generally fixed upon , approved , asserted , prescribed , ratified , as not only sacred and divine , but as such a most j●●t , wise , equal , excellent , incomparable way of maintenance ( invented by the most wise god ) which cannot be matched , much lesse amended , exceeded by all the policy , wit , or wisedom of men : being a most certain , standing , unvariable , convenient allowance in all ages , places , seasons , alterations , how ever things rise or fall , continuing unalterable like the we●kly sabbath ) as to the porportion or quota pars , in all vicissitudes of warre , peace , plenty , scarcity , famine ; and causing all ministers to sympathize , fare , share alike with their people everie where , be the times and seasons good or bad , wet or dry , plentifull or barren ; and giving them a competent share in b all their temporal blessings , without such toyl or labour as might interrupt them in their ministry , studyes , and furnishing them with a tenth part of every tythable thing their respective parishes yield for the food , cloathing , support of themselves , families , cattel , or vendibles of some kind or other , sufficient to buy what else they want . this way of maintenance therefore so sacred , divine , antient , moral , universal , convenient , equal ; unalterable , and so long continuance in gods church in all revolutions , may not , must not , cannot be either totally abrogated , substracted , detained , diminished , nor changed into any other new-fangled pretended more equal , just , certain , convenient , lesse troublesome stipendiary , salary , by any pragmatical , jesuitical , anabaptistical , atheistical politicians , statists , powers or legislators whatsoever , without the highest antichristian pride , presumption , insolency , and c exaltation of themselves above and against god himself , whose special sacred institution , portion , rent , inheritance , right , and due they are ; particularly ( both by name and kind ) reserved , prescribed by , appropriated , devoted to himself , by his own command ; which all emperors , kings , princes , potentates , powers , generals , armies , nations in the world have no power or jurisdiction to repeal , disobey , change , alter ; no more than tenants their landlords antient quitrents , services , tenures , or subjects , servants , their kings or masters laws , orders , mandates , yea no more than they can change gods weekly sabbath into another different proportion of time , or any other sacred institution , into a new superstitious humane invention , as learned keckerman , in his system . polit. l. . c. . polanus in ezech . . v. . dr. carlton , and dr. scalter , in their treatises of tithes , assert and prove at large . this divine right of tithes even under the gospel , which i have pleaded for , hath been constantly asserted in all ages , since the apostles times till now , by fathers , councils , the laws , edicts of christian emperors , kings , parliaments , canonists , casuists , schoolmen , historians , lawyers , popish , protestant divines of all sorts and nations . dr. richard tillesly in his animadversions upon mr. seldens history of tithes , printed london . p. , to , hath colected a catalogue of no lesse than . such authorities ( in a chronological method ) before the year of our lord . as have asserted their ius divinum , in all ages before that ; whereof irenaeus ( flourishing in the year of christ . ) is the first , and the constitutions of fredericus the second , the last , where those who please may peruse them . mr. seldens laborious history of tithes , and review , especially ch . . , , , . supplies us with many more authorities of this kind , in suceeding times , especially with our own domestique laws and councils , to whom i refer the impartial reader , and to dr. tillesly , dr. sclater , mr. mountague , mr. nettles , and sir james semple their animadversions on and answers to his history : if any desire further satisfaction in this point , let them peruse andr. hispanus , de decimis tractatus . petrus rebuffus , and tyndarus de decimis , printed colo. . gaspar boetius , de deciman tutori hispanico jure praestanda : grav . . ignatius laserte & molina , de decimis venditionis , & permutationis . ioan. giffordus , moderata dissertatio de ratione alendi ministros evangelicos : hanov. . gulielmus redoanus , de rebus ecclesiae non aliendis : ven. . & de spoliis ecclesiae romae . . alexander stiaticus , repet . in extrav . ambitiosae : de rebus ecclesiae non aliendis . alph. villagus , de rebus ecclesiae non ritè alienatis , recuperandis : bon. . ( a treatise of hard digestion in these sacrilegious times : ) sir henry spelman , de non temerandis ecclesiis : dr. john prideaux , orat. . de decimis : dr. edward reynolds , explanation on psal . . v. . gul. zepperus , legum mosaicarum explanatio , l. . c. . and learned hugo grotius , who thus concludes in his book de jure belli & pacis , l. . c. . ●ect . . p. . ( deservedly magnified by all scholars , lawyers , politicians , souldiers , and therefore i close with it , to stop all their mouths at once . ) lex vetus de sabbato , & altera de decimis , monstrant christianos obligari , nec minus septima temporis parte ad culium divinum ; nec minus fructuum decima in alimentum eorum qui in sacris rebus occupantur , aut similes pios usus seponant . resolving the tenth part of mens increase at least , and no smaller proportion , to be d as justly , morally , perpetually due to god and his ministers under the gospel from all christians , as the weekly sabbath , and seventh part of their time , and no lesse , is due still by them to god and his publike worship . thus much for the divine right of our ministers to their tithes , omitted in the former part , but here supplyed , for the readers fuller satisfaction in these sacrilegious times , which so violently and impiously decry it without scripture , reason , antiquity , authority , out of malice and design . the succeeding chapters more concern their legal , rational right and equity depending on their divine . chapt . iii. having dispatched the two principal propositions of greatest concernment , ( wherein i have been larger than i at first intended ) to satisfie all mens consciences , and stop the mouths of all gain-sayers , i now proceed to the third proposition . that if tithes and other maintenance by glebes , oblations , pensions , formerly setled on our ministers , be either wilfully withheld , or substracted from them by the people , in part or in whole , the civil magistrates may and ought by coercive laws , penalties to inforce the payment of them in due form and time , both by the law of god , and rules of iustice , without any injury or oppression to the people . this proposition necessarily follows from the former two : for if there be a just , competent , comfortable maintenance due to all lawfull painfull preachers , and ministers of the gospel , even by divine right , institution , expresse precepts , both of the gospel and law of god ; and that as a just debt , hire , wages , salary , right , not as a mere voluntary gift , alms , benevolence ; and the setled maintenance of our ministers by tithes , glebes , oblations , pensions , and other duties , be such ; as i have already demonstrated : then the civil magistrates may and ought by coercive laws and penalties to enforce the payment of them in due form and time ( as our very officers by such means enforce their souldiers , parents their children and servants , schoolmasters their scholars , yea our troopers their very horses , held in with bits and bridles when unruly , and quickned with spurs when lazy : and shepheards their very sheep , with their dogs and hooks , when there is cause , to do their duties , and reform their errors ) without the least guilt or colour of injury or oppression to the wilfull , obstinate , or negligent detainers of them ; and that by the self-same laws , rules of justice , reason , conscience , as all tith-opponents yet grant , they may enforce obstinate or negligent tenants , creditors , masters , publick or private accomptants , trespassers , disseisors , and the like , to pay their just rents and services to their landlords , their due debts to their creditors , their contracted wages to their hired labourers or menial servants , their audited arrears to the publick treasury , or others to whom they are indebted upon account , their ascertained dammages to such as they have injured , and to restore the goods or lands unjustly taken or detained , to those they have plundered or disseised of them , yea as justly as they may by any coercive laws and means enforce and constrain any obstinate persons or merchants , to pay all tenths , fifteens , subsidies , ayd , cu●toms , tonnage , poundage , for defence of the realm ●y ●and or sea when publickly and legally granted in and by a full , free , and lawfull parliament , duly summoned and elected by the people , according to the a manifold laws and statutes enacted for that purpose : the want of which indubital ingredients only , how fatal they have been to parliaments in former ages , to make them and all their acts , iudgements , orders , ordinances , mere nullities , and what a prejudice they have been to the people and republick too , those who please may read at leasure in the statutes of h. . c. . & rot. parl . n. . . c. . and the act for repealing the parliament of r. . in the parliament of h. . c. . the reason of which repeal , is thus recorded by mr. oliver saint iohn in his declaration in parliament against the shipmony iudges , anno . ( printed by the commons command ) p. . that parliament of r. . of revocation , was held by force , as is declared in the parliament roll of h. . n. , . that it was held viris armatis , et sagitariis immensis . the knights of parliaments were not elected by the commons prout mos exegit , sed per regiam voluntatem : and so the lords rex omnes dominos sibi adhaerentes summonare fecit . whereupon nu. . these judgements of revocation ( and that of the whole parliaments proceedings too ) are declared to be erronea , iniqua , et omni juri et rationi repugnantia , erroneous , wicked , and contrary to all right and reason : so mr : saint john , numb . . this was one grand article of impeachment of king richard the l. for which he was then deposed from his government by a forced resignation . heu licet quod eo statuto & consuetudine regni sui , in convocatione cujuslibet parliamenti sui , populus suus in singulis comitatilus regni debeat esse liber ad eligend : & deputa●d : milites pro hujusm●di comitatibus , ad interessend . parliamento , & ad exponend . eorum gravamina , & ad prosequend . pro remediis superinde , preu● eis videbatur expedire ; tamen praefatus rex ut in parliamentis suis ut liberius consequi valeat suae temerariae voluntatis effectare direxit mandata sua frequentius vicecomitibas suis ut certas personas per ipsum regem nominatas ut milites comitatus venire faciat ad parliamenta sua : quos quidem milites eidem regi faventes indulgere poterat prout frequenter fecit quandoque per minas varias et terrores , quandoque per munera ad consentiend . illis quae regno praejudicialia fuerant et populo quamplumum onerosa , et specialiter ad concedendum eidem regi subsidium ad certos annos suum populum nimium opprimendo . which i leave to john canne to english for those who understand not latin , or our laws , and would strip our learned ministers of their tithes and setled maintenance by colour of an extraordinary call ( as he terms it ) to such an extraordinary sacrilegious work as this . quest . but what ground is there in scripture ( may some demand ) for compelling people to pay their tithes and other duties to their ministers ? answ i answer . we have the president , law , and commandement of godly hezekiah , recorded in the chron. . , , , , . with the good effect it wrought , already recited . ly . the examples of zealous nehemiah , and the religious nobles and people under him ; who entred into a solemn covenant , curse , oath , and made ordinances to charge themselves yearly with the third part of a shekle for the service of the house of god : and that they would bring in all their first-fruits and offerings , and the tithes of their ground unto the levites , that the same levites might have their tithes in all the cities of their tillage neh. , . c. . . throughout , specially v. , , , , . ch . . , . which when afterwards neglected , by the people , nehemiah contended with the rulers ( for their negligence in not enforcing the people to pay them ) whereupon this effect ensued , then brought all judah the tithes of the corn , and the new wine , and the oyle unto the treasurers , &c. and nehemiah was so far from deeming this injustice or oppression , as some now malitiously term it ; that he prayes , remember me , o my god , concerning this , and wipe not out my good deeds , that i have done for the house of my god , and for the offices thereof , neh. . , to . from which president nicholas hemingius ( a far better divine and scholar than john canne and all his associates against tithes ) thus resolves in his commentary on thess . . , . therefore the godly are to be admonished . that by divine right they owe stipends unto the ministers of the church . but that nothing may be here neglected to the dammage of the ministry , this care belongs to the superious . for if kings be nursing fathers to the church ( as isaiah admonisheth ) possunt et debent jure divino ministris ecclesiae stipendia ordinare , they may and ought by divine right ( or gods law ) to ordain stipends to the ministers of the church , by the example of the most godly king hezechiah , chron. . that they may wholly addict themselves to the law of god. and if the people detain these salaries , and setled dues from them , they may enforce them by fines , penalties , and actions to pay them . ly . if these examples prevail not , we have the president of a zealous heathen prince ( who shall rise up in judgement against many pretended magistrates , refusing to assist complaining ministers to recover their just tith●s and dues from their refractory ingrate people ) to wit , king attaxerxes , who making a decree for furnishing ezra the priest with whatsoever he should require for the maintenance of gods worship and house , ezra . , &c. concludes it thus ; v. . and whosoever will not do the law of thy god , and the law of the king ( which confirm our ministers tithes and dues ) let iudgement be executed speedily upon him , whether it be unto death , or unto banishment , or to confiscation of goods , or to imprisonment . and lest any should deem this a tyrannical , oppressing edict ; ezra himself subjoyns in the very next words , v. . blessed be the lord of our fathers , who hath put such a thing as this is in the kings heart . which law if now put into due execution , would send canne and most of his confederates here packing back again to amsterdam , or some gibbet , or prison , and strip them of the goods they have got by the warres and troubles of the time . ly . we have king darius his decree for repairing gods house , and furnishing the priests there with all necessaries they required , which thus concludes with a most severe penaltie against the wilfull disobeyers of it , ezra . . also i have made a d●cree . that whosoever shall alter this word , ●et timber be pulled down from his house , and being set up , let him be hanged thereon , and his house be made a dunghill for this . h●w many now gi●be●s should we now have throughout england , and how many new-purchased houses by those who had no●e of l●te , would be made dungheaps , if this rigid law were now put in are ? which may stop the clamorous mouths of such who cry out against laws and ordinances for tithes , prescribing more moderate penalties . object . but all this is but old testament will many now object : what can you allege for your propositions p●●●f out of the gospel ? answ . to stop their mouths , i answer , . that the gospel expresly commands all living under it , to render to all their dues : therefore to ministers ( to whom i have proved tithes and other setled maintenance to be a just due and debt ) to owe nothing to any man , rom. . , . therefore not to ministers . but what if bold , atheistical , obstinate or covetous wretches will not pay these dues to their ministers , doth the gospel allow magistrates and higher powers to compel them to it ? yes , in the very antecedent words , v. , . if thou do that which is evil , ( as the defrauding , denying , detaining of the ministers , as well as the magistrates , or any others due debts and salaries , is a doing of evil , prohibited by the forecited words , and many other texts elsewhere insisted on ) be afraid , for he beareth not the sword in vain ; ( as he should do , might he compell none by it to their duties ) for he is the minister of god , even a revenger to execute wrath upon him that doth evil : wherefore ye must needs be subject ( in yielding to their commanding laws and ordinances for tithes and ministers dues , as well as others , edged with coercive penalties ) not only for wrath ( that is , for fear of the penalties which else fall upon you for your disobedience , exasperate the higher powers and civil magistrate to execute wrath upon you ) but even for conscience sake ; which should more prevail with men than wrath and penalties ; though our tithe-detainers now are grown so atheistically impudent , as to alledge conscience for not rendring them , and robbing god himself of them , mal. . . as well as his ministers . ly . the holy ghost by the apostle peter thus seconds his former precept , by paul , pet. . , . submit your selves to every ordinance of man for the lords sake , whether to the king , as supream , or unto governours : who have made many lawes and ordinances for payment of our ministers tithes and duties . yea , but say our sturdy armed , and unarmed tithe-detainers now ; what if we will not do it , as we are resolved , notwithstanding all such laws and ordinances ? what ? are you resolved to disobey and contemn gods gospel , laws and ordinances as well as mans ? where is your religion , your saintship you so much boast of ? will you * provoke the lord himself to wrath , are you stronger than he ? i presume , not : therefore the apostle subjoins , that these kings and governours are sent by him for the punishment of evil doers : and such are all those who detain the ministers established dues , who are not only theeves and robbers of god in the old testaments language , mal. . but committers of sacrilege , rom. . . thou that abhorrest idols ( as many tithe-oppugners pretend they do ) dost thou commit sacrilege and church robberie ? acts . . in the new testaments and meer heathens dialect ; who fall under the just punishment of kings and governours , whom god will bear out in the just punishment of such evil doers , or else punish them himself in a more severe manner , if the armed sonnes of a zerviah be too hard for david , and b it is a fearful thing to fall into the hands of the living god , who even under the gospel is a consuming fire , heb. . . and hath proved so to many tithe-oppugners very lately , both in consuming their houses and personal estate , as well by real fire , as by inflicting spiritual judgements on their souls . ly . our saviours own words recorded in the gospel , are direct in point . luke . , , . mat. . . and why , even of your selves judge ye not what is right ? ( in paying your just dues and debts to all you owe them without sute or coercion , as the next words literally import : ) when thou goest with thine adversary to the magistrate , as thou art in the way give diligence that thou mayest be delivered from him , lest he hale thee to the judge , and the iudge deliver thee to the officer , and the officer cast thee into prison verily i say unto thee , thou shalt by no means come out thence , till thou hast paid the uttermost farthing ; or very last mite . here is a gospel resolution of our saviour in two evangelists , ratified with a verily i say unto thee ; that all those who will not pay their ministers tithes and dues , as well as other mens debts , may be lawfully brought and haled perforce before the magistrate , and by the magistrate and judge , condemned in double dammages , cast into prison , and not suffered to come out thence , till he have paid the utmost farthing , not only of his detained tithes and dues , but of his sine , forfeiture , and costs of sute , prescribed by our laws . and let all our swordmen and other oppugners of our coercive laws against detainers of ministers tithes and dues , give our saviour himself the title of a tyrant , and oppressor , a lyar , if they dare , and that such proceedings are not sufferable under the gospel . ly . there is nothing so free and voluntary in the world , that i know , as almes and charity to poor distressed saints and christians ; yet the gospel accompts this a due debt ; and all able to give them , debtors , rom. . . and if any refuse to render them , out of their hard-heartedness , and want of charity ; the christian magistrates under the gospel may , not only rate and assesse them according to their estates towards the poors relief ; ( as they do in all christian republicks and realms ) but by distresses , sale of goods and other coercive wayes compel them to render them ; and that both by the common law of england , and the statutes of h. . c. . h. . c. . edw. . c. . e. c . e. . c. . phil. & mar. c. . eliz. c. . eliz. c. . eliz c. . eliz. c. . eliz. c. . eliz. c. . eliz. c. . eliz. c. . as dalton and other justices of peace , tit. poor , maimed souldiers . therefore admit tithes mere alms ( as some would have them ) yet when and where detained , they may be as justly levyed and recovered by coercive laws and statutes as alms to the poor , and those who condemn coercive laws for tithes as unbeseeming the gospel , must tax and repeal all laws for the poor , and for maimed souldiers too , as such ; which i presume they will not do . ly . i suppose neither canne himself ( who receives pay as a chaplain to the army out of publick contributions from the people , not from voluntary contributions of the souldiers ) and all other officers and swordmen oppugning the coercive maintenance of our ministers by tither or otherwise , will maintain even unto death ; that the people ( even against their wills and consciences too ) may be enforced to pay monthly taxes and excises ( amounting to twenty times more each year than all the ministers tithes in england ) by coercive orders and ordinances , ( though not made in a full , free , or old english parliament , nor warranted by so many indisputable acts of parliament as ministers tithes and dues ) and levyed by imprisonments , distresses , forfeitures , armed violence , and free quartering of souldiers on the people , ( though adjudged high treason in straffords case in full parliament , for which he lost his head ; ) our ministers therefore being real spiritual souldiers of jesus christ , even by the gospels resolution ; and not to go a warfare at any time on their own free cost , but upon the peoples pay & wages , as due to them , as any souldiers ( which i have formerly proved ) they must by the self same reason acknowledge the levying & enforcing of the payment of their less burdensom , and more legal , necessarie tithes for the defence and preservation of the very gospel , religion , gods glory and mans salvation once a year , by penalties , forfeitures , imprisonments , or distresses when obstinately detained : or else disclaim their own coercive contributions first , to maintain unchristian bloodie wars between christians of the same religion , in firm unity , and amity with us , which are not so necessarie , or commendable amongst christians , who should a live peaceably with all men ( not make a last trade of war ) b love as brethren , c lay down their lives one for another , yea d love and pray for their enemies ( not murder or destroy them ) and a beat all their swords into plowshares and their spears into pruning hooks , not lifting up sword nation against nation ( as now they do to the peril of the gospel , reproach and slaunder ) and learn war no more ) as is the spiritual warfare of our ministers against the world , flesh , sin , devil , and all errors , blasphemies , corruptions , for the eternal salvation ( not destruction ) of mens souls and bodies too . ly . we find it long since prophecied in the old testament , in relation to the calling to the gentiles by and under the gospel , isay . . that the kings of the gentiles should become nursing-fathers , and their queens nursing-mothers to the church , isay . , . surely the isles shall wait for me , and the ships of tarshish first , to bring my sons from far , their silver and their gold with them : and the sons of strangers shall build up the walls , and their kings shall minister unto thee , psal . . , . the kings of tarshish and of the isles shall bring presents , the kings of sheba and seba shall offer gifts , yea all kings shall down before him ( and then ) all nations shall serve him . thus seconded in the new testament , rev . . where it is prophecied of the heavenly jerusalem ( the church of christ ) the kings of the earth do bring their glory unto it . which prophecies concerning kings , and likewise kings of isles in particular ( and no other sorts of governors , which is observable ) have been most eminently verified of the kings and queens of this isle and realm of britain , beyond all the kings , queens , regions , isles and kingdoms in the world besides , to the eternal honour of that late rejected , abjured form of kingly government ( derived from gods own form of b kingly government over the whole world , and of c christs royal government over his church both militant and triumphant ) and of this our isle : where god blessed our church and kingdom , . with three such worthy heathen kings in succession , ( a arviragus , marius , and coylus ) who though they embraced not the christian faith here preached soon after our saviours ascension by james the son of zebedee , simon zelotes , peter , paul , aristobulus , and philips twelve disciples , wherof joseph of aramathaea ( who honourably interred our saviour ) was chief , yet they courteously entertained them , permitted them freely to preach the gospel to their people , gave publick entertainment to the persecuted christians resorting hither as to a safe and peaceable sanctuary , when they were forcibly expelled out of all other kingdoms and countries throughout the world , and roman empire , by bloody persecutors , bestowed lands and a comfortable maintenance on the preachers of the gospel at glastonbury , where they built the first christian church in the world ; and were the first kings and kingdoms in the world who gave publique reception , protection , countenance , maintenance to the preachers and professors of the gospel ; as not only our own historians , but two forein writers , namely polydore virgil : hist . angl. l. . and cardinal baronius himself . annal. tom. . an. . n. . with spondanus in his epitome of him , records . ly . with the first christian king we read of , publickly baptised , professing and establishing the christian faith , builded , endowed churches and ministers with glebes and other maintenance ; to wit our famous king lucius , who about the year . ( as b matthew paris , matthew westminster , the history of rochester and others record ) possessiones et territoria ecclesiis et viris ecclesiasticis abundanter conferens chartis & munimentis omnia communivit : c ecclesias vero cum suis coemiteriis ita constituit esse liberas , ut quicunque malefactor ad illa confugeret , illaesus ab omnibus remaneret : ( a good policy at that time to draw pagans to frequent the church , and hear the word , to convert them both from their paganism and evil lives ; ) he not only giving all the lands and possessions belonging to the pagan temples and priests to the churches and ministers of the christians ; sed quia majorem honorem illis impendere debuerat , augmentavit illas amplioribus agris et mansis , omnique libertate sublimavit , as galfridus monmuniensis , and gervasius tilburiensis affirm : here was a true nursing father indeed to gods church and ministers . ly . with the first christian queen we read of in all the world , to wit , queen helena , a daughter and heir to king coel , and mother to constantine the great , who was a carefull nursing mother , and bountifull benefactor to the church and ministers of christ , as eusebius in the life of constantine , ambrose oratio in obitum theodosii , baronius in his annals , and speed in his history of great britain , p. . record . whence she was stiled in antient inscriptions , venerabilis et piissima augusta ; both for her extraordinary piety , and her converting of constantius her husband to the love and protection of the christian religion , and the professors of it , who by her means creeping out of the dens and caves wherein they were hid , began to exercise their devotions publickly , and to re-edifie the old ruinate churches ( which dioclesian the persecuting emperour had levelled to the very ground in all places , ) and to erect new ; b she herself at her own cost , erecting a stately church over our saviours sepulchre at jerusalem , famous till this very day . ly . with the first christian emperor in the world , even that famous constantine the great , born and elected emperour in this island , educated in the christian faith by his pious mother , the best , the greatest nursing father the church of god ever yet enjoyed in the world . c for first , he destroyed the two grand persecutors of the christian religion , maxentius and licinius , with their adherents , and demolished all the idol-gods and monuments of idolatry throughout his dominions . ly . he reduced all the exiled christians driven out of their countries into desolate islands , caves , dens , desarts , restored them their lost possessions , established christian magistrates throughout his empire , encouraged , protected the christians in all places , in the publick profession of their religion , and suppressed the heresies and schismes that sprung up amongst them , by councils and publick edicts . ly . he caused all the churches in this isle and elsewhere , which by the decrees of dioclesian were levelled in all places to the very ground ( which some atheistial anabaptists , a and jesuitical incendiaries even in these pretended glorious times of piety and reformation endeavour to do again ) to be re-edified , and new ones to be founded throughout his dominions ; himself erecting most magnificent temples to gods honour , ( as king david did out of holy zeal , and love to god , not popish superstition , as some now censure it , chron. . c. . , , . ) both in rome it self , ierusalem , hostia , neapolis , hirapolis , constantinople , and other cities , endowing them with ample possessions , and all other churches with convenient glebes , mansions and revenues . ly . he encouraged , protected , advanced godly ministers , learning and religion , by setling a competent maintenance on them , both for their livelihood and encouragement , most preferring , esteeming , rewarding the best deserving of them . and by this means so laid the foundation of the christians security , and the churches maintenance , that the same hath stood under the protection of christian kings and princes ever since . and albeit many caesars his successors , have often attempted to shake it by their authorities , and the sharp instruments of heretiques have dangerously undermined it , yet hath it born out the storms of all their boisterous assayes , and stood in the strength that this emperor first laid it , ( as speed and others observe . ) and for these blessed fruits of this prime nursing father of gods church , he had then , and ever after , these most glorious titles conferred on him by the christians , and ecclesiastical writers , most blessed emperour , most pious , sacred , divine ; most happy redeemer and restorer of romes city , and the whole world from paganism , tyranny , persecution , and founder of the churches peace . which those shall never enjoy , who labour to demolish and extirpate what he thus founded and established . ly . god hath blessed our church and isle ( as io. capgrave in his prologue , sir hen. spelman in his epist . dedicatory to his councils , and the author of fasciculus temporum record ) with more kings & queens , who for their extraordinary piety , incredible zeal , liberal alms , manifold works of mercy , incomparable humility and contempt of the world , their munificent , magnificent and admirable bounty to the ministers and saints of god , and in building , adorning , endowing churches with tithes and glebes , and some of them for suffering martyrdome for defence of religion by pagan invaders , were justly reputed and kalendred in the church of god , for saints ( though infected with some superstititions of those blinder times , which the age wherein they lived may excuse , and their other vertues over-ballance and delete , ) than any other isle , region or kingdom throughout the world , how great or populous soeber . there being no less than twelve of our antient saxon kings crowned with martyrdom by infidels ; and ten of them canonized for saints for their transcendent holiness ; and no less than thirty kings and queens within years space , who laying down the height of their worldly power , crowns and glory , that they might gain heaven by force , betook themselves to a devout , retired religious life , ( according to the devotion of those times ) in some private monasteries ( for the most part builded and endowed by themselves ) or else went as pilgrims to rome , then reputed famous for her piety . besides multitudes of the royal progeny who followed their examples both in their piety , charity and bounty to the church . and amongst others of our antient kings , king ethelwolfe gave not only the tenth out of all his goods and chattels , but likewise of all the lands and houses of his whole realm to the church . his sonne , incomparable a king alfred ( founder , or at least b restorer and enlarger of our famous vniversity of oxford ) though he was for the most part taken up with warres and military affairs by reason of the danes invasions , fighting no lesse than . set battels with them ( for the most part with glorious success ) yet out of an ardent zeal to god , in emulation of zacheus , he gave no lesse than half of his annual rents ( and spoils of war besides ) in pious uses ; to wit , for relieving the poor both at home and abroad , for maintaining , rewarding scholars , ministers , building schools of learning , maintaining professors of divers arts and sciences in them , especially in oxford , and devoted no lesse than the third part of his time ( to wit , eight hours every natural day ) to his sacred studies and devotions ; besides the time he spent in his military imployments , civil government , and enacting laws of most excellent use by advise of the wisest men , which have continued ever since . so as asser menevensis , ( in egercituesse ) in his life , spelman and others give this brief character and encomium of his excellencies , o stuporem omnium aetatum aluredum ! cujus dum religionem intuemur , nunquam exiisse videatur monasterio : dum bella & militiam , nullibi versatus fuisse unquam nisi in castris : dum scripta ejus & lucubrationes , vitam transiisse in academia : & dum regni populique sui administrationem , nihilo unquam studuisse , nisi in foro & senatu , justitiae promovendae , legibusque bonis sanciendis . of which good laws of his ( extracted out of the old and new testament for most part ) a this for the due payment of tithes and oblations to ministers was one , cap. . decimas primigenia & adulta tua deo dato . o that all those militarie victorious commanders who boast of like victories as he obtained , would imitate him in these his vertues , bounty , liberalitie , both to our universities , scholars , ministers , and promulging edicts for the due payment of their detained tithes and dues ! and then they should be chronicled for saints indeed , as well as the forenamed kings , of which there was not one in three in former ages ( as sir henry spelman observes ) who did not adorn , augment & enrich the church in some things , even during their very wars , instead of making a mere prey and spoyl of her ( as some late saints have done ) to maintain the warres and enrich themselves . in which sacrilegious rapines , if any shall persevere to the utter ruine of the remaining glebes , tithes , maintenance of all our ministers and churches too ( the prime honour of our nation , a ecclesia , faemina , lana ) as some have designed , and would engage them to do , to render our religion , nation , and those who shall give their votes thereto for ever execrable ; let them take heed , that instead of inducing the ministers and godly people really fearing god , throughout our three nations , to forget monarchy , and be in love with their new military government , they do not necessitate them , and most others too thereby , ( by comparing their irreligious church-robberies , and sacrilegious rapines against the very laws even of war and conquest it self in an enemies country , and detestable to very heathens , as b grotius proves at large ) to love and honour kings and monarchs more than ever , as the only nursing-fathers to gods ministers , church , people , under the gospel ; and to esteem others not comming in by the door into the sheep-fold , but climbing up by storm some other way , to be but theeves and robbers ; who come not but to steal , kill , and to destroy , whatever the bounty , piety , and munificence of these and other our kings , have built and setled on the clergy for gods honour , and maintenance of his worship , and thereby engage them so to act , speak , and peremptorily resolve , as all the israelites and godly levites , priests , people , twice did in a like case , chron. . , , , , . & sam. . , , , . if any here object , these kings and queens were more popish , superstitious , than really religious : admit they were in some things , ( as too much doting upon monkery , not monarchy , or worldly wealth or power , which some condemn in others , when most guilty of and applauding it in themselves ) yet their very bounty and profuse munificent building monasteries and nunneries , ( whereof a king edgar alone built no less than . endowed them with large revenues , and intended to make them up . had he lived , ) besides what they bestowed in building , adorning , endowing , maintaining all cathedral and parish churches and chapels , for the support and honour of their superstitious religion , should eternally shame all those pretended saints , who will be at no cost at all to maintain and propagate what they now call the true religion and the faithfull ministers of the gospel , but instead thereof , will by mere force and rapine against all rules of law , justice , piety , equity , and war it self , plunder ( if they can ) the remaining materials and fabricks of our churches , which those kings or their successors , and other antient benefactors built for gods honour , and the small surviving lands , rectories , glebes , tithes , pensions , dues , which our ministers yet enjoy , by their sole bounty , piety , gift , laws , without any real charge , injurie , oppression , or obligation to any mortals now surviving them . but to take off the stain of popery wholly from our kings , which was no disparagement to their commendable charity and bounty ; consider in the sixth place , that god hath honoured us with the first christian king in the universe a henry the th . who durst not only question , but by publick laws and statutes abolish and renounce the popish usurped antichristian power , and with it all popish shavelings , abbots , priors , monks , nunnes , and many popish doctrines , ceremonies ; and restored the people to the use of the holy scriptures in their own native language : whose example encouraged other kings , princes , churches to do the like . who though he seised upon abby lands , as given to mere superstitious persons , orders , vses , repugnant to gods word , and the popes mere creatures , and supporters ; yet he continued the lands , glebes , b tithes , and maintenance of the bishops and other ministers , and augmented it and our vniversities revenues also out of the abbies spoyles , which yet could not exempt him from the publick censure of some protestants , for selling or rteaining most of their lands and impropriations for his own use , which ( say they ) he should have rather converted to other lawfull sacred uses , according to the will of the first donors : and mr. a purchas writes , that the monks unrighteous coveting , and the popes appropriating of the tithes of some thousands of our best benefices unto abbies and monasteries , and robbing the ministers of them to whom only they were given by god himself , and the first donors for their maintenance , to the great prejudice both of the ministers and people , was one principal cause , that by a divine judgement and providence ( beyond all mens expectation ) the pope and they were both suppressed together on a suddain , even by him who not long before had justified his usurped supremacy against luther , and for which he had received this ominous title from the pope defender of the faith : god grant our new defenders of the faith , do not as ill requite those persons , powers , who first commissioned them , with their arms to defend our faith , church , religion , against iesuites , papists , and their confederates in the field , as king henry did the pope after this new motto . ly . that our god blessed , honoured us with the first b incomparable protestant king in the world , ( no papist , but a real saint , beyond any of his years in this or former age● ) even young king edward the sixt : the first king i read of , who by publick laws and statutes suppressed , banished all popish pictures , ceremonies , superstitious monuments , practices , abuses throughout his dominions , and established the true worship , service , sacraments , ministers and ministry , and gospel of christ throughout his dominions : for which all ages shall call him blessed : no waies embesselling , or diminishing the churches glebes , tithes or revenues , and enacting a new excellent law c for tithes recovery when detained . but god taking him suddenly from hence to a better kingdom , and his successor queen mary , defacing , deforming his blessed reformation , and restoring both the pope and popery again , almost to its former height , except in point of monkery , which the defacing of the monasteries prevented , ly . god then blessed our church and kingdom with an unparallel'd protestant princesse , queen d elizabeth , a nursing mother to the church , who demolished the whole body of popery , with the popes revived usurpations again by publick acts ; established the reformed religion again in greater beauty and purity than at first ; banishing all jesuites and seminary priests as traytors , restored the exiled ministers of the gospel suffering for religion , rewarding them with the richest bishopricks and church-preferments , and planting a faithfull , painfull , preaching ministry by degrees in most dark corners of her dominions , endowed them with a setled competent maintenance , which our subsequent protestant kings continued to them and their successors without diminution . all which considered , we of this isle may with much thankfulnesse to god , and honour to our princes , without flattery averr before all the world , that the forecited prophecies of kings being nursing-fathers , and queens nursing-mothers to the church ( and specially kings and queens of this isle ) have been more really accomplished in the kings and queens of this our island , than in the kings and queens of any other isle , kingdom , or nation whatsoever throughout the world , and god grant that those who shall succeed them in any other new-modelled-form of government may not prove such step-fathers and step-mothers to our churches and ministers , as to demolish the one , and strip the other quite naked of all that former livelihood , and remaining small revenues , which they yet enjoy by our princes grants , gifts , charters , laws and favours only ; and thereby give all godly ministers , and people too in our nation , just cause to cry out with wringed hands , weeping eyes , and bleeding hearts , in the prophets words , hosea . , . for now they shall say , we have no king , because we feared not the lord , what then should a king do to us ? ( or amongst us , ) they have spoken words , swearing falsely in making a covenant : thus iudgement springeth up as hemlock ( one of the deadliest poysons to destroy men ) in the fields . or else to speak in solomons language , to the same effect , prov. . . for the transgression of a land many are the princes thereof ( as our land had never so many transgressions and princes too as now , ) but by a man of vnderstanding and knowledge ( and where is such a one to be found , to a stand up in a gap ? ) the state thereof shall be prolonged : now the lord raise up such a man , or men ; lest god say to our nation and all grandees in power , as he did once to the prophane wicked prince of israel , whose day was come , ezech. . , , . remove the diadem , and take off the crown ; this shall not be the same : exalt him that is low , and abase him that is high : i will overturn , overturn , overturn , ( church , state , laws , ) and it shall be no more , untill he come whose right it is , and i will give it him . to prevent these treble , fatal over-turnings , with the wiping and turning of our jerusalem upside down like a dish ( a certain fore-runner of a churches , nations ruine , kings . . psal . . . ) i shall now in the last place present the whole nation with a brief catalogue of those manifold laws , statutes , which our kings have successively made in their great councils and parliaments , almost from the very first establishment of religion in our island , for the due payment of ministers tithes by coercive means , forfeitures , penalties , in case of willfull detaining , or neglect in paying all or any part of them at the times appointed ; which those who please , may b peruse in chronicon johannis brompton , mr. lambards archaion , sir henry spelmans councils , mr. fox his acts and monuments , john bridges his defence of the government of the church of england , book . p. . our statutes at large , and mr. rastals abridgement of statutes , title tithes ; which laws being well known to most learned men , are therefore needlesse fully to transcribe . the first of them is the forecited law , decree of the council of calcuth , under king oswald and offa , an. . of famous king alfred , anno . of king alfred and gutburn the dane , cap. . de decimis deo debitis , about the year . of king edward the elder and guthurn : anno . ( or . as some ) cap. . ( in some c. . ) de decimis et censu ecclesiae retentis : of king aethelstan ; made in the famous council of gratelean : an. . cap. . de decimis reddendis , tam ex animalibus quam de fructibus terrae ; which this king himself duly paid , and then enjoyned all his great officers and people duly to render : of king edmond : an. . c. . concluding , qui non solverit , anathema esto . of famous king edgar , anno . c. . de decimis , & canon . of the kings and presbyters of northumberland , made a little after that time : lex . of king aethelred , an. . c. , & . of king knute the dane , an. . c. . ( but . in some copies ) de decimis reddendis , &c. , & . and a statute law against obstinate detainers of tithes , there stiled jura et debitiones divinae : of king edward the confessor , about the year , confirmed verbatim by william the conquerour , in the fourth year of his reign , c. , . ( forecited ) to which may be added the great charters of king henry the first , and king john recorded in a matthew paris , ratified by king henry the d. in his magna charta , c. . made in the th . year of his reign , b confirmed by above acts of parliament since , in many successive parliaments . that the church of england shall be free ( now in greater bondage than ever ) and shall have all her whole rights and liberties inviolable , ( never so much violated , diminished as now , notwithstanding all laws , covenants , declarations , protestations lately , and all c antient solemn curses and excommunications annually made against the infringers thereof , e. . e. . & . h. . c. . enacting the cistertian monks to pay tithes to ministers and evangelists notwithstanding any buls of exemption from the pope , which the king and parliament declared to be void , and that the promovers or executors of any such buls shall be attainted in a praemunire . it appears by the parliament roll of h. . nu . . this act was made upon the petition of all the commons ; which , because not extant in print , pertinent to the present business of tithes , and unknown to most , i shall here transcribe at large . may it please our most gracious lord the king , to consider , that whereas time out of wind the religious men of the order of the cistercians , of your realm of england , have paid all manner of tithes of their lands , tenements , possessions , let to farm , or manured and occupied by other persons besides themselves , and of manner of things tithable being and growing upon the same lands , tenements and possessions , in the same manner as your other lieges of the said realm ; yet so it is , that of late the said religious have purchased a bull from our holy father the pope , by the which our said holy father hath granted to the said religious , that they shall pay no tithes of their lands , tenements , possessions , woods , cattel , or any thing whatsoever , although they are or shall be leased or farmed , notwithstanding any title of prescription or right acquired , or which hereafter may be had or acquired to the contrary . the which pursute and grant is apparently against the laws and customs of your realm , by reason that divers compositions real , and indentures are made between many of the said religious , and others your lieges of the prise of such tithes , and also by reason that in divers parishes , the tithes demanded by the said religious by colour of the said bull , exceed the fourth part of the value of the benefices , within whose limits and bounds they are ; and so if the said bull should be executed ( much more the late petions against all tithes and coercive maintenance for ministers condescended to ) as well your dreadfull majesty , as your liege● patrons of the said benefices , shall receive great losses in their advowsons of the said benefices , and the conusance which in this behalf appertains , and in all times hath belonged to your regality , shall be discussed in court christian , against the said laws and customes : besides ( pray mark the prevailing reason ) the troubles and commotions which may arise among your people by the motion and execution of such novelties within your realm . that hereupon by assent of the lords and commons in this present parliament , you would be pleased to ordain , that if the said religious , or any other , put or shall put the said bull in execution , shall be put out of your protection , by due process made in this behalf ; and their goods forfeited to you , lost , and that as a work of charity . which petition being read and considered , was answered in the words following . it is accorded by the king and lords in parliament , that the order of the cistertians shall be in the state they were before the time of the bull purchased , comprised in this petition , and that as well those of the said order , as all others religious and secular of what estate or condition soever they be , who shall put the said bull in execution , or shall hereafter take advantage in any manner of any such bulls already purchased , or to be purchased , shall have process made against them and either of them by sommoning them within a moneth by a writ of premunire facias . and if they make default or shall be attainted , that they shall be put out of the kings protection , and incur the peines and forfeitures comprised in the statute of provisors , made in the . year of king richard. and moreover , for to eschue many probable mischiefs , likely to arise in time to come , that our said lord the king shall send to our holy father the pope , for to repeal and annul the said bulls purchased , and to abstain to make any such grant hereafter . to which answer the commons well agreed , and that it should be made into a statute . from which memorable record , i shall desire iohn canne , and all his ignorant deluded disciples , who cry out against tithes , and the payment of them as popish , to observe , . that all the commons of england in this parliament , even in times of popery , together with the king and lords , resolve the quite contrary : that the exemption of any order of men from payment of their due and accustomed tithes is popish , and that the pope was the first and only man , who presumed by his bulls to exempt men from payment of due and accustomed tithes to their ministers . ly . that popish friers of the cistercian order ( not godly saints abhorring monkerie and poperie ) were the first men who sued for , procured and executed such exemptions from the pope ; ( and that merely out of covetousness , against the express word and law of god , as our john salisbury de nugis curialium , l. . c. . and our arch-deacon of bathe a petrus blesensis observe , who tax them for it . ) and therefore the petitioning , writing , endeavouring to procure a like exemption from the payment of antient and accustomed tithes to our ministers , must be popish and monkish likewise , infused into our new-lighted saints by some popish monks and jesuits disguised under the notion of new-lights , seekers , anabaptists , &c. ly . that they declare this bull , though granted by their holy-father the pope ( whose authority and esteem was then very great ) to be against the laws and customs of the realm ; and thereupon repeal , null it for the present , and provide against the grant of any such bulls for non-payment of tithes for the future , and make the procurers and executioners of them subject to a praemunire : such a transcendent crime and grievance did they then adjudge it , to seek or procure the least exemption from payment of tithes from any earthly powers , yea from their very holy father the pope himself , then in his highest power . ly . that they resolve , the exemption from tithes though amounting but to a fourth part in every parish , would prove a great prejudice to the king and all other patrons in their advowsons ; to the lessors and farmers of tithes , to the incumbents and people ; and that the moving of such novelties might occasion great troubles and commotions within the realm . and will not then the abolishing of all tithes in every parish , to the prejudice of the patrons , ministers , ( yea and people too , as i shall prove anon ) the scandal of most godly men , undoing of thousands of families , and confounding all parishes , and order in them , now much more do it , in these dangerous generally discontented times , instead of setling unity , amity , peace , and propagating the gospel , as some pretend ? let those whom it most concerns consider it at their leisure , lest they repent too late . the next printed statute for the payment of tithes , is h. . c. . which in the preface gives this true character of , and fixeth this brand of infamy upon tithe-detainers , forasmuch as many evil disposed persons , ( such are they justly branded for by this act of parliament ) have attempted to withhold their tenths , as well predial , as personal , and have also contemned and disobeyed the decrees of ecclesiastical courts of this realm , &c. therefore it enacts , the civil magistrate and justices shall imprison such till they pay their tithes . after which followes a special statute for payment of tithes in london , h. . c. . confirmed , enlarged by a statute and decree too , h. c. . thus prefaced , as if purposely penned for these times ; whereas divers and many persons inhabiting in sundry counties , and places of this realm , and other the kings dominions , not regarding their duties to almighty god , or to the king our soveraign lord , but in some years past more contemptuously and commonly presuming to infringe the good and wholsome lawes of this realm and gracious commandments of our said soveraign lord , than in times past have been seen or known : have not letted to substract and with-draw the lawfull and accustomed tithes of corn , hay , pasturage and other sort of tithes and oblations commonly due , &c. after which it provides a remedy by coercive means against the detainers , refusers of ministers tithes . the last and fullest statute for payment of tithes of all sorts , and setting out predial tithes , truly , justly , and without fraud or guile , as hath of right been yielded and paid , made not by papists , but our most religious first protestant parliament , and king upon the beginning of reformation , and when popery was ejected , is , e. . c. . intituled , an act for the true payment of tithes , under pain of forfeiting the treble value , &c. recoverable by an action of debt , &c. at the common law . what judgements have been given upon these statutes in our kings courts from time to time , you may read in brook , fitzherbert , and the year-books in ashes tables , title dismes ; and in sir edward cooks institutes , p. , to . to these i might subjoyn the late ordinances of the last parliament of caroli , concerning tithes and augmentations of ministers livings , like to end not only in the diminution , but total annihilation and substraction both of their augmentations , antient glebes , tithes , dues . the constitutions of our clergy in their convocations under our kings , recorded in lindwood , john de aton , willielmus de burgo , and others , prescribing the due payment of tithes under pain of excommunication , and other ecclesiastical censures ; as likewise the resolution of our judges concerning the right of tithes , and a that no lay-man by our laws can prescribe to be exempted from payment of tithes , or lay any original claim unto them : with the laws of forein kingdoms , as well civil as ecclesiastical , for the due payment of tithes ; whereof you may find store in fredericus lindebrogus : codex legum antiquarum , p. , , , &c. capitularia caroli magni & ludovici ; in brochellus , decret . ecclesiae gallicanae , l. . tit . . de decimis : in binius , surius , and others in their collections of councils : but for brevity sake i shall cite only the constitution of the emperour frederick for the payment of tithes in the kingdom of sicilia , which is short and very pertinent , b constitutionum sicularum , l. . tit . . lex . which runs thus , quantò caeteris terrae principibus munifica dextra salvatoris in temporalibus nos praefecit , tantò saltem iuris naturalis instinctu ad antedicta strictius obligamur ; cum etiam veritate dicente , cui amplius creditur , amplius exigatur . quod in nostrae mentis intrinseca meditatione solicita revolventes , & illud etiam attendentes , ☞ quod divino decimarum , quarum debitum ex utriusque testamenti tabulis confirmatur , ( let all tith-oppugners observe it , ) tanti in ecclesia dei petidatior redditur , quaniò decimalis obligatio de bonis hominum , a damno reputatur : officialibus nostris universis & singulis praesentis legis , auctoritate mandamus , ut decimas integras , prout regis gulielmi tempore , praedecessoris nostri , vel ab antecessoribus officialibus & bavilis exolutae fuerint , locorum praelatis exolvere , absque omni difficultate procurent . nos enim , qui favente domino inter homines sumus in praeminenti culmine constituti , quantum sine injuria regalium possumus tollerare ecclesiarum jura , & praesertim earum quae in regno consistum , quas sub protectione nostra accepimus , et habemus , in nullo diminuere volumus , sed augere . subjectis etiam nostris indicimus ut decimas quas de bladis et donis suis antecessores eorum praedicti regis gulielmi tempore praestituerunt , venerabilibus locis , quibus decimae istae debentur cum integritate persolvant . to which i shall only adde , that a stephen king of hungaria , under whom that kingdom was first totally converted to the christian faith , as he built and endowed many magnificent churches for gods worship at his own cost , so he enacted this good law for the payment of tithes , that he who refused to pay his tithes should forfeit the . parts to the minister , and he who should steal the tithes should be reputed a thief . si cui deus decem dederit in anno , decimam deo det . et si quis decimam suam abscondit novem solvat . et si quis decimationem episcopo separatam furatus fuerit , dijudicetur ut fur ; ac hujusmodi compositio tota pertineat ad episcopum . and. c. . de statu ecclesiastico , & veneratione domus dei : he enacted this good law against the invasion and alienation of the churches possessions ( about the year of christ . ) quisquis fastu superbiae elatus , domum dei ducit contemptibilem , & possessiones deo consecratas , atque ad honorem dei sub regia immunitatis defensione constitutas , inhoneste tractarit , vel infringere praesumpserit , quast invasor et violator domus dei excommunicetur . decet enim , ut indignationem ipsius dom. regis sentiat , cujus benevolentiae contemptor , & constitutionis praevaricator existit : nihilominus tamen rex suae concessionis immunitatem , ab hominibus ditioni suae subjectis illaesam conservari praecipiat , assensum vero non praebeat improvide affirmantibus , non ●ebere esse res dominicas , id est , domino dominantium traditas ; itaque sub defensione regis sit , et sicuti suae propriae haereditati , magisque advertat . quia quaniò deus excellentior est hominibus , tanto praestantior est divina causa mortalium possessione . quocirca decipitur , quisquis plus in propriis quam in dominicis rebus gloriatur : quarum defensor et custos divinitatis constitutiones diligenti cura non solum eas servare , sed etiam multiplicare debet . si quis igitur insanus importunitate illa quae diximus praestantiora quàm sua defendere oportet & augmentare . si quis igitur insanus importunitate improbitateque sua , regem a recto proposito pervertere tentaverit , nullisque remediis mitigari posse visus fuerit , licet obsequiis aliquibus & transitoriis sit necessarius , abscindendus ab eo projiciendusque est , juxta illud evangelium , si pes , manus aut occulus tuus scandili●at●te , erue eum & projice abs te . since then christian emperors , kings , princes in forein parts , and our own kings and parliaments in and by all the forecited laws and statutes yet in force , have established tithes and other duties on our clergy and ministers of the gospel , and thus publickly branded the negligent or wilfull detainer● , sustractors of this just debt and duty ( prescribed by our laws , with warrant from the old and new testament ) for evil disposed persons , not regarding their duty to almighty god ( which therefore none who claim their power from , or for god , should now regard or countenance in the least degree ) enforcing them by actions at law , imprisonment , payment of treble dammages , excommunications , and the like coercive wayes to render to them tithes at last to their loss ; why christian magistrates should not still enforce the obstinate detainers of ministers tithes , and defrauders of them in their just dues , and merited rewards for their ministery , as hath been formerly practised in all ages and places too ; let all anti-tithers ( who would be lawless , as well as titheless and godless ) resolve me when they can : and if they deem themselves above all humane laws and penalties ( so long as they wear their swords by their sides ) for defrauding our ministers of their lawfull tithes and dues , let them then chew the cudd upon this evangelical precept , backed with the strongest coercive power both in heaven and earth , thes . . . let no man go beyond , or defraud his brother ( much less then his minister ) in any thing ( therefore not in tithes due by divine and humane right ) mark the reason : because that the lord is the avenger of all such things , as we have forewarned and testified . and what vengeance god will take of such who defraud their brethen and ministers of their debts , and necessitate them to sue them at the law , to recover their rights : he resolves , in the cor. , , to . now therefore there is utterly a fault among you , because you go to law ( to wit before heathen judges , or without just cause ) one with another , ( the greatest if not only fault being in the defrauder and detainer ) why do ye not rather take wrong ? why do ye not rather suffer your selves to be defrauded ? nay why do you wrong and defraud , and that your brethren ? and which is more , rob your ministers ; yea , but what harm or punishment will follow on it ? mark it , o all ye saint-seeming hypocrites , who are guilty of it ! know ye not , that the unrighteous ( who thus wrong and defraud their brethren and ministers , which is worse ) shall not inherit the kingdom of god ? be not deceived : neither theeves , nor covetous ( and such are all those who rob and defraud their ministers of their tithes and duties ) shall not inherit the kingdom of god : no more than fornicators , idolaters , &c. with whom they are here coupled . let all those then who are guilty of this damning sin , which disinherits them of gods kingdom , now seriously repent and reform it , with all such , who have abetted or confederated with them herein , that so i may adde with the apostle in the next words , and such were some ( nay all ) of you ; but ye are washed , but ye are sanctified , but ye are justified in the name of our lord jesus , and by the spirit of our god. and now to cloze up this chapter , i shall desire all anti-tithers who have already in their heady resolutions , resolved to abolish , not only all our ministers tithes , and antient dues established by the lord himself in the old and new testament , with all the forecited laws , statutes , ordinances for the true and due payment of them , but all other coercive maintenance for their future subsistence , if not their very rectories , glebes , and fabricks of our churches ( devoted for a prey by divers ) sadly and seriously to consider these ensuing particulars . . that herein , they shall shew themselves , not only worse by thousands of degrees than our forementioned kings and queens , who built and endowed our churches with glebes , tithes , and a liberal maintenance ; and worse than the most of all their ancestors , protestants or papists , who have hitherto continued , confirmed , established them by successive laws ; but even worse than the worst of turks and infidels ; who alwaies heretofore , and at this very day , have and do allow their mahometan and pagan idolatrous priests in all places , a liberal , competent setled salarie , and erect magnificent temples to mahomet and their idols , exceeding most of our fairest christian churches both for beauty and number , as you may read at large in a pulchas pilgrimage , alexander ab alexandro , hospinian de origine templorum , and others . and to give you one instance for all , there are no lesse than moschees or saracinical temples in fesse , ( a mahometan city in barbary ) the chief whereof is carven , being a full mile and an half in compasse . it hath gates , great and high : the roof is yards long , and broad : the steeple very high : the ornaments rich and stately : round about it are divers porches , containing yards in length , and . in breadth : about the walls are pulpits of divers sorts , wherein the masters and priests of their law , read to the people such things as they think pertain to their salvation : the revenue of this temple alone , anno . was no lesse than . duckets a day , of old rents . the chief church in morocco is bigger , though not altogether so fair as that of fesse , and hath a tower so high , that the hills of az●fi being . miles distance may be seen from thence , ( as b leo c purchas , and d heylin write ) these temples and others are adorned with marble pillars , and curious mosaicks , carved works of all sorts : their priests and readers of the law have a liberal stipend , with books and lands likewise allowed them , and are had in very high estimation and reverence , both with their kings , magistrates , people ; the califfs there receiving likewise the tenth measure of corn yearly from the people : besides which tenths they have many colleges and schools of learning very majestically built and richly endowed . those therefore who pretend themselves saints of the highest new-form , and yet would deface the beautifull churches our pious ancestors erected for gods worship , & strip our ministers naked of all glebes , tithes , setled maintenance , so as they shall not be able to live comfortably , and provide for their families have in truth denyed the faith , and are worse than these turks and infidels , tim. . . ly . that hereby they shall make both our religion and nation to stink in the nostrils of all forein protestant churches , papists , turks , infidels ; who by the very light of nature have condemned sacrilege and church robbers : acts . . give extraordinary advantage to jesuites , papists and other atheistical seducers , to reduce the people either to popery or mere atheism : give all the enemies of god and our religion occasion both to rejoyce and blaspheme ; and extraordinarily scandalize and grieve the hearts of all true godly ministers , and protestants really affected to our religion , throughout our three nations . ly . that they will herein exceed all our late suppressed prelates and their high commission courts in tyranny , cruelty , injustice , by undoing all or most of our godly ministers and their families at one fatal blow ; instead of relieving them in their present necessities under which many of them sadly groan , by depriving them of their livelihood , without any legal conviction of the least crime , but only that they are ministers of the gospel , and receive tithes ; and thereby draw upon their heads , not only the cryes and clamours of these oppressed ones here , with all the formentioned curses and judgements denounced against tith-detainers , but also that sad irrevocable sentence of condemnation before christs tribunal at the last day , matth. . . depart from me ye cursed into everlasting fire prepared for the devil and his angels ; for i was hungry and ye gave me no meat , i was thirsty and ye gave me no drink , i was ( not ) a stranger , ( but your minister ) and ye took me not in , ( but cast me and mine out of those rectories and benefices your ancestors gave and setled on me , ) naked , and ye cloathed me not , nay stripped me naked of all my cloathing and livelihood , and would neither relieve , nor maintain me your selves , nor permit others to do it , in an antient legal way ; and then what can you answer , or to whom can you resort for protection , from this inevitable just charge and doom of damnation for all eternity ? ly . consider seriously the exemplarie punishment executed upon ananias and saphyra , acts . , &c. with that fearfull judgement of retaliation denounced against all plundering enemies of the church of christ , isay . . wo unto thee that spoylest , and thou wast not spoyled ; and dealest treacherously , and they dealt not treacherously with thee ; when thou ceasest to spoyl , thou shalt be spoyled ; and when thou shalt make an end to deal treacherously , they shall deal treacherously with thee : seconded by obadiah . as thou hast done it shall be done unto thee , thy reward shall return upon thine own head . and if any fondly conceit , ( as many do ) that the swords and power of an army shall bear them out against the lord of hosts himself : let them consider that of psal . . . there is no king saved by the multitude of an host , ( themselves have seen it by late experience ) neither is any mighty man delivered by great strength . jeroboam the idolatrous usurper had an army of no lesse than eight hundred thousand chosen men , to make good his usurped title against abijah davids right heir , yet when he had cast out the priests of the lord from their suburbs and possessions , and made him priests for his calves of the lowest of the people ; he was vanquished by a far smaller army , and no lesse than five hundred thousand of his forces slain in one dayes battel , and the lord soon after smote him that be dyed , chron. oreb , zeba , and salmunna the princes and generals of the midianites , when they entred into the land of israel to destroy it , had an army like unto grashoppers for multitude , and they and their camels were without number , judges . , . yet when they said , let us take to our selves the houses of god in possession , they were totally routed by gideon , and his . men having only trumpets and lamps ; and perished at endor , and became as dung for the earth , judg. . & . psal . . , , , . senacherib invaded judah with a victorious and numerous army , above treble the number to any army in our daies ; yet when he trusted to the strength of his army , and bid defiance to the god of heaven ( as those do now who oppugn and spoil his ministers of their inheritance ) god sent his avenging angell , which cut off all the mighty men of valour , and the leaders , and the captains and one hundred fourscore and five thousand of his souldiers in one night , and when they arose early in the morning , behold they were all dead corps : so he returned with shame of face into his own land , and when he was come into the house of his god , his own sonnes that came out of his own bowels , slew him there with the sword . kings . , , . chron. . . the two proud surly captains with the fifty armed troopers at their heels , who came in a violent manner but to fetch down elijah the man of god from an hill to king ahaziah , were destroyed with fire from heaven , and the third captain only saved , who fell on his knees before him , and besought him for his own and his fifties lives , and used him like a man of god , without any rudeness or plunder , kings . , , &c. to lesson all souldiers and captains now , to reverence gods ministers , and a do his prophets no harm in their persons , callings or estates : else he who rebuked kings , and miraculously slew those captains and their troopers for their sakes , will avenge their quarel now as well as in former ages . and if former victories and successes have and do puff them so far up with pride or security , as to think they may now reduce our ministers like conquered vassals to such poverty , as to enforce and make them eat the very crumbs under their tables , insteed of feeding at their own ; let them remember that one memorable president ( wherewith i have quelled many usurping souldiers ) of the greatest conqueror and abuser of kings , i ever yet read off in the world , and gods retaliation upon him for his tyranny and inhumanity after the conquest of no less then . kings ( and who now living hath conquered the tenth part of that number ? ) thus recorded to all posterity , judg. . , , . and iudah fought against adonibezeck , in bezeck , and they slew the canaanites and perazites . and adonibezeck fled , and they pursued after him , and caught him , and cut off his thumbs and great toes . and adonibezeck said , threescore and ten kings , having their thumbs and great toes cut off , have gathered their meat under my table : as i have done , so god hath requited me ; and they brought him to ierusalem and there he died . it is very dangerous for any conquerers to make ill presidents of tyranny or rapine , because they have power in their hands to do it . mark what a wo and judgement god denounceth against such , mich. . , , , wo to them that devise iniquity upon their beds , when the morning is come they practise it , because it is in the power of their hand . and they covet fields , and they take them by violence , and houses , and take them away : so they oppress a man and his house , even a man and his heritage ( nay ministers now and their heritage , as well as other mens ) but mark what follows immediately . therefore thus saith the lord , behold , against this family do i devise an evil , from whence they shall not remove their necks , neither shall they be hauty , for this time is evil . in that day shall one take up a parable against you , and lament with a dolefull lamentation , and say , we be utterly spoiled ; he hath changed the portion of my people ( as some now would change our ministers ) how hath he removed it from me ? turning away lord. it is most perilous for any by meer arbitrary votes , will and violence to seiz on , change , divide any other mens lands , houses , inheritances , especially gods ministers ; it will prove as bad as a cup of poison to them , they shall vomit them up again with a vengeance ; and though their excellency mount up to the heavens and their head unto the clouds ; yet their triumphing shall be but short , and their joy but for a moment : they shall perish for ever as their own dung : they which have seen them shall say , where are they ? they shall fly away as a dream and shall not be found : the eyes which saw them shall see them no more , neither thall their place any more behold them , ( mark the reason ) because they have oppressed and violently taken away an house which they builded not . job . . to . how much more the houses , glebes , tithes of god and his ministers ? let this sad consideration then , perswade all turbulent , greedy , sacrilegious spirits to follow dr. gamaliels advice , ( which many of them have much pressed for a publick toleration of all religions , though now they would a extirpate all ministers and their tithes root and branch ) recorded acts . , . refrain from these men ( and their tithes too ) and let them alone ; for if they ( and their tithes ) be o● god ( as i have proved them ) ye cannot overthrow them , lest haply ye be found to be fighters against god. ly . let every of the chiefest now in power , remember those many reiterated solemn declarations , protestations , votes and ordinances they have formerly made for the due payment and preservation of our ministers tithes and augmentation of their incompetent livings out of the bishops and delinquents impropriations , and deans and chapters lands ; ( for the most part other waies disposed notwithstanding ) and what an high violation of publick faith , trust , promises , solemn engagements , and an eternal infamy and dishonour it will procure to their persons , memories ( in after annals ) and posterities , if all these should now conclude in a general armed depredation , abolition , dissolution or substraction of all their old rectories , glebes , tithes , dues , instead of new settled augmentations out of other dissipated church revenues formerly voted for them . ly . let all changers and innovators of our fundamental lawes and ministers maintenance , consider what prohibitions , comminations and judgements god hath proclaimed against , and inflicted upon such innovators and changers in his word . eccles . . , , , , . there is an evil which i have seen under the sun , as an error which proceedeth from the ruler : folly is set in great dignity , and the rich in low place ; i have seen servants upon horses , and princes walking as servants on the earth ( but mark the issue ) he that diggeth a pit shall fall into it : and who so breaketh an bedge , a serpent shall bite him : who so removeth st●nes shall be hurt thereby , and he that cleaveth wood shall be endangered thereby . the meaning of which parabolical expressions is thus more clearly explained , prov. . , . my son , fear thou the lord and the king , and meddle not with those who are given to change , for their calamity shall rise suddenly , and who knoweth the ruine of them both ? that is , of the changers & their adherents joyning with them , by the revenging justice both of god and the king. my deceased brother burtons sermons on this text , nov. . . are worth all our innovators reading . for which sermone he and i joyntly suffered in the star-chamber through our innovating all-ruling prelates malice , for discovering , oppugning those several changes and innovations they had made in the ceremonies , doctrine of our church , and high-commission arbitrary proceedings , contrary to our laws . little did those prelates think in that time of their domineering power and greatnesse , that these changes of theirs , and unrighteous censures upon us for discovering and opposing them , would have so soon proved the very causes of their unexpected sudden calamity and ruine , according to this text and censured sermons ; and of their high-commission and starchamber court too , wherein they prosecuted us ; yet they really found they did so . what proved the calamity , and ruine of strafford , canterbury , and the old council table , but their unrighteous exorbitant innovations and new projects against our laws , and old forms of parliamentary proceedings ? what brought sudden unexpected calamity and ruine on the late king and parliament too , ( even by those who were raised , commissioned , engaged by oaths , protestations , and solemn covenants to defend and preserve them ) but gods justice for some exorbitant changes , and fundamental , violent , illegal innovations , whereof both were guilty ? especially in the militia ; whereof the houses endeavouring totally to divest the king , without admitting him any share therein ( which a bred the first fresh quarrel between them ) as their only security and the kings too : and now god hath made that very militia the ruine of them both , and to assume both the regal and parliamental , military and civil supreme authority and government of the nation and united kingdoms too , wholly to themselves , and to dash in pieces that new minted mock parliament power and government themselves at first created ; for those many notorious injurious changes , oppressions , innovations of all sorts whereof they were deeply guilty : and what other fatal changes god may yet suddenly effect to the calamity and ruine of those who have been chief instruments in all these changes , if they ring the changes still , till they a have turned all things upside down , as the potter doth his clay , and our very ministers setled maintenance , with all fundamental laws for the establishment of their and all others just rights and liberties , i leave to their own saddest meditations , these gospel texts of rom. . , , . and c. . , . ( which i hope neither will nor can offend any professors of the gospel ) therefore thou art inexcusable o man whosoever thou art that judgest , for wherein thou judgest another , thou condemnest thy self , for thou that judgest doest the same things . but we know that the judgement of god is according to truth against them who commit such things : and thinkest thou this o man , that judgest them who do such things , and doest the same , that thou shalt escape the iudgement of god ? be not high-minded but fear : for if god spared not the natural branches take heed lest he also spare not thee , being a wilde olive tree . and when they have meditated on these texts , i shall further importune all such of them who like the little horn in daniel . , , . that should be divers from the first , and subdue three kings ; and being elevated with that successe , should speak great words against the most high , and wear out his saints , and think to change times and laws , advisedly to consider what there next follows . that though the laws and times should be given into his hand , yet it will be untill a time and times and the dividing of times . and the judgement shall sit , and they shall take away his dominion to consume and destroy it unto the end . and then our ministers need not fear their ministry , tithes , glebes , nor the people their iust rights and liberties , which otherwise are like to be lost , subverted , destroyed in the long , bloody , costly contests and wars for their defence and preservation . now lest any should pretend matter of conscience or reason against the christian magistrates enforcing of tithes true payment , by coercive means and laws , in these tith-detaining sacrilegious times ; or for the speedy repeal of all our fore-specified laws and ordinances yet in force to compel all detainers of them to pay them duly under the several penalties therin prescribed ; i shall endeavour to give a full satisfactory answer to all arguments and cavils of moment usually made against them , which are reducible to these four heads . object . first , that there is no expresse precept in the gospel , nor any such penal laws , enforcing the payment of tithes to be found in the primitive and purest times for . years after christ ; therefore they are unlawfull , oppressive , un-evangelical , tyrannical , antichristian ; as canne terms them , in his thundering empty voyce . answ . to this i answer , first , that there is no expresse precept or president in the new testament , for any strange high courts of justice , martial , or other courts of that nature , for any articles of war or penal laws to put souldiers or any others to death , or inflict punishments for any new high-treasons , or offences whatsoever . no precept nor president that john canne ( a late excise-man as divers report ) can produce for the imposing or levying of any excise , impositions , taxes , customes , crown-rents , tonnage , poundage , contributions , by any distresses , forfeitures , imprisonments , sale of goods , billetting of souldiers on the people , and armed violence now used by souldiers , excisemen , collectors and other publicans sitting at the receipt of custom , ( whereof i hear iohn canne is one , perhaps to excise the alehouses and cannes there used for names-sake ) all puny to and less warrantable by gods law and gospel , than our ministers tithes . the objectors therefore must find express gospel-texts for all and every of these publick duties , and the present wayes of levying and enforcing them , or else disclaim them , or their objection against tithes . ly . i have produced expresse gospel-texts warranting in the general coercive laws , sutes , actions to recover ministers tithes , as well as any other just , legal , publick or private dues , debts , rents , lands , possessions whatsoever . therefore the objectors must either disclaim their objection , or renounce all penal laws , sutes , and coercive means whatsoever to levy or recover any other civil rights , debts or duties whatsoever , and introduce a lawless anarchy and confusion amongst us , for every one to cheat , defraud , rob , oppresse , disseise , spoyl , defame , wound , murder one another , without any penalty or redresse , except only by club-law , instead of a peaceable , just and righteous government . ly . the reason why there were no coercive laws for the payment of tithes or ministers dues in the primitive church for above years was this , because christians then were so zealous , ready , forwards to render them with an overplus , and to sell their very houses , lands , possessions , estates , and lay them down at the apostles and ministers feet to maintain them , and relieve their poor christian brethren , witness acts . , . c . , , . c. . , . cor. . . phil. . , , , . rom. . . and that memorable place , cor. . , to . where paul records of the first churches and converts in macedonia , how that in a great tryal of affliction ( in times of heavy persecution ) their deep poverty abounded to the riches of their liberality , for to their power ( i bear them record ) yea and beyond their power they were willing of themselves , praying us with much intreaty , that we would receive the gift , and take upon us the fellowship of the ministring to the saints , &c. the a new testament records , the exceeding readiness of the pharisees to pay tithes of all they did possesse , and of the smallest seeds and garden-herbs of all kinds , to their priests or levites ; which christ himself approved , commended , with a these things ought ye not to have left undone ; and b philo a learned jew , who lived under claudius , in the apostles daies , records as an eye-witness on his own knowledge , that the jews were so forward in paying their first-fruits and other dues to their priests , that they prevented the officers demanding them , paid them before they were due by law , as if they had rather received a benefit , than rendered any , both sexes of their own readiness , bringing them in with such courtesie and thanksgiving , as is beyond all expression ( they are his very words : ) and were they then lesse forwards think you , to render due maintenance , ( if not tithes and first-fruits , ) to the apostles when they turned christians ? surely no , for the forecited texts in the acts declare , they were far more bountifull than before , both to the apostles and poor saints , selling all they had to support them . the like zeal ( even in the heat of persecution , under bloody pagan persecutors ) continued in all the primitive christians next after the apostles , who though persecuted , driven into corners , imprisoned , banished , and spoyled of their goods , lands , by plundering officers , sequestrators , souldiers , as c eusebius , and others record , yet every one of them out of his deep poverty contributed every month , or when he would or could some small stipend for the maintenance of the ministers and poor ( when they had no lands to pay tithes out of ) of his own accord without any coercion : witnesse ( a tertullian ( who flourished but . years after christ ) modicum unusquisque stipem menstrua die , vel cum velit , et si modo volit , & si modo possit apponit , nam nemo compellitur , ( there was no need when they were so free of their own accord ) sed sponte consert . haec quasi deposita pietatis sunt . and though their monthly stipends in regard of their great poverty were thus termed small comparatively to what they were before the persecution , yet indeed they were very large , considered in themselves , as by the same authors following words in this apology , c. . appears , plus nostra misericordia insumit vicatim , quam vestra religio templatim : they bestowing more in a liberal free way of christian charity in every village towards their ministers and poor , than the wealthy pagan romans did in their temples and sacrifices for the maintenance of their paganism . in the th . general persecution of the christians about years after christ , or before , the b governour of rome told saint lawrence the martyr ( arch-deacon to pope xistus the d . and treasurer of the christians oblations for the ministers maintenance and poors relief ) that the common report then was , bow the christians did frequently sell their lands , and disinherit their children ( like those in the acts ) to enrich the ministers , and relieve the poor , bringing thousands of sestertii at a time to st. lawrence , out of the sale of their lands , so as their treasury was so great that he thought to seise on it for a prey : which their bountiful liberality c prudentius thus poetically expresseth , offerre fundis venditis sistertiorum millia , addicta avorum praedia faedis sub auctionibus , successor exhaeres gemit sanctis egens parentibus , et summa pietasli creditur nudare dulces heros . what need then any law to compel the christians to pay tithes or ministers dues , when in the heat of persecution , they were so bountifull to them and the poor as thus voluntarily to contribute their whole estates for their support ? whose president if the cavillers against our present penal laws , ordinances for tithes would imitate , no minister nor other voluntary tith-payers would oppose their repeal . and though in these primitive times of persecution , the christians being spoyled of their lands and possessions , could not pay tithes in kind in most places , but were necessitated to such voluntary contributions as these , yet without all peradventure they held the payment of tithes to ministers in kind , a divine moral duty , and in some places , and at some times ( when and where they could ) did voluntarily pay tithes as a duty for their maintenance without any coercive laws or canons , upon the bare demand or exhortation of their ministers , by vertue of gods own divine laws , as is undeniable by irenaeus , l. . c. . who records , that the christians in his time ( being but . years after christ ) did not give lesse to their ministers than the jews did to their priests by the law of moses , who received the consecrated tithes of their people , but more , designing omnia quae sunt ipsorum , all they had to the lords use , hilariter ac liberaliter ea quae non sunt minera : giving chearfully and freely those things which were not lesse than tithes , as having greater hope than they . and further confirmed by origen , homil. in numeros : saint cyprian , lib. . epist . . de unitate ecclesiae , the words of saint augustine , hom. . majores nostri ideo copiis abundabant , quia deo decimas dabant ; and the second council of mascin , an. . can. . leges divinae consulentes sacerdotibus ac ministris ecclesiarum , pro haereditaria portione omni populo praeceperunt , decimas fructuum suorum locis sacris praestare , ut nullo labore impediti per res illegitimas possint vacare ministeriis , quas leges christianorum congeries legis temporibus custodivit iutemerata . which prove a long continued custom and practice of paying tithes to ministers as a divine right and duty , used amongst christians long before st. augustins dayes and this antient councel . and no sooner were the times of persecution past , but the divine right of tithes was asserted , pressed , and the due payment of them inculcated by st. hilary , nazianzen , ambrose , hierom , chrysostom , augustine , eusebius , cassian , cyril of jerusalem , isiodore pelusiota , and caesarius arelatensis , all flourishing within . years after christ , as dr. tillesly proves at large ; and the people during that space paying their tithes freely , without any compulsion in all places , there needed neither laws nor canons to enforce their payment : whence a agobardus writes thus ( about the year of our lord . when laws and canons began to be made for their payment ) of the precedent times : nulla compulit necessitas fervente ubique religiosa devotione , & amore illustrandi ecclesiae ultro aestuante . that there was no need of canons or laws to compel the payment of tithes , whiles fervent religious devotion , and love of illustrating churches every where abounded . but in succeeding degenerating times , when ( according to christs prediction ) the b love and zeal of many christians to god , religion , and ministers began to grow lukewarm , and colder than before , so as they began to detain their tithes and ministers dues , then presently christian kings and bishops in ecclesiastical and temporal synods and councils , began generally in all places , to make laws and canons for the due payment of them ; declaring in them only the divine right , laws and precepts of god to the people both in the old and new testament , as a sufficient obligation ( seconded by their bare canons and edicts ) without any coercion or penalty to oblige them to their due payment . the first unquestionable canon for the payment of tithes i find extant , is that of the second council of mascin forecited , an. . cap. . the first law extant made by any general council or parliament for the payment of tithes , is that of the council of calcuth in england , under offa and alfred , an. : declaring their divine right , and enjoyning their payment without any penalty ; after which charles the emperour , about the year of our lord . by canons made in sundry councils , and in his capitulars or laws , enjoyned the payment of tithes , under pain of being enforced to render them by distresse , upon complaint , and some small penalties . since which time many laws and canons were made in our own and forein realms till our present times , for the due payment of tithes under sundry penalties , which because collected by sir henry spelman in his councils , mr. selden in his history of tithes , bochellus decret . eccles . gal. l. . tit. . de decimis , fridericus lindebrogus codex legum antiquarum , surius , binius , crab , lindwood in their collections of councils , and sundry others ; i have therefore only given the reader a brief catalogue of the principal civil laws both at home and abroad , for the due payment of them ; reciting more at large but what others for the most part have omitted , and are not vulgarly known , giving only brief hints upon some of the rest in my third chapter . whither i refer the reader for further satisfaction in this objection ; and shall conclude of penal laws as seneca doth of fates : fata volentes ducunt , nolentes trahunt : those who will not willingly pay their tiths must and ought to be compelled thereunto by penal statutes : the second objection is , that the payment of tithes is against many mens judgements and consciences : therefore it is both vnchristian , tyrannical , and vnjust , to enforce them thereunto . i answer , . that the payment of tithes being not only warranted but commanded in and by the old and new testament , and the constant practice of christians in all ages , churches , there neither is , nor can be the least pretence of conscience , for the non-payment of them . therefore this pretext of conscience is in truth nought else , but most desperate vnconscionableness , malice , obstinacy , peevishness , covetousness , impiety , or secret atheism , worthy to be reformed by the severest laws and penalties . ly . all that conscience can pretend against their payment as tithes , is only this anabaptistical devise , and loud lye of canne and others ; that the payment of a precise tenth part of mens increase to their ministers is jewish or antichristian , and so unlawfull : both which i have unanswerably refelled . therefore this can be no ground or conscience for any to detain them . but if any scrupulous consciences be not satisfied in this point , let them either pay their ministers the moitie or . parts , or the , , , , or . part of their annual encrease , neither of which is jewish or antichristian ; or else let them sell all their old or new purchased lands , houses , possessions , goods they have , and bestow them on the ministers and poor , as the forecited primitive christians did , whom they pretend to imitate , and then they may satisfie both their consciences and ministers too , without the least difference , coercion , sute or penalty of our laws . ly . many of these very objectors , pretending conscience , as souldiers or sequestrators , have made no conscience to enforce thousands of parishioners of late years throughout the nation to pay their ministers tithes to themselves for pretended arrears or sequestred goods , and exacted monthly contributions out of ministers tithes to pay the army , without any scruple of conscience , levying them by distress and armed violence , when detained . if then they can enforce others thus to pay tithes to themselves , and those to whom they were never due by any known law of god or man : with what conscience can they detain them from our ministers , to whom they are due by all divine and human laws , or condemn the enforced payment of them from themselves , who have so violently extorted them from others ? ly . if any ministers or others plead the payment of our late heavy monthly taxes , excises , impositions , ship-mony , far exceeding the old , to be against their conscience , as being imposed by no lawfull parliamental authority , repugnant to all our laws , statutes , liberties , privileges , protestations , covenants , records , votes of parliament , imployed to shed seas of innocent precious christian blood , to maintain unchristian bloody wars against our late protestant brethren in covenant and amity , they know not upon what lawfull quarrel , to support an arbitrary army government , power to domineer over them , to subvert our old fundamental laws , parliaments , governours , liberties , peace , elections , trials , the great charters of england , foment heresies , sects , schisms , and carry on the plots of the pope , jesuites , spaniard , french , to ruine our realms , church , religion , and pay many disguised jesuites and popish priests secretly lurking in all places under the mask of listed souldiers ( as most wise men conceive ) to perpetuate our warrs , destroy our ministers and nation by endless wars and taxes . all these , with other such weighty grounds of conscience , law , prudence , ( which a some have insisted on and pleaded ) can no waies exempt them from violent distresses , quarterings , penalties , forfeitures , levies , by armed souldiers , who regard these pleas of conscience no more than common high-way-men who take mens purses by force , and deem all publick enemies , who dare plead law or conscience in this case ; though the plea be true and undeniable even in their own judgements and consciences , as some of them will acknowledge to those they thus oppress . why then should they or any others esteem this mere pretence of conscience only against penal laws for tithes , enforced in a lesse rigorous manner , which they may with as much reason and justice allege against the payment of their just debts , land lords rents , and all other dues from them to god or men ? the d. objection is , that tithes are pure alms ; therefore not to be enforced by any law. for which the opinions of john wickliff , husse , thorp , are produced by the anabaptists , and erasmus urged by some , but without sufficient ground . i have answered this objection elsewhere , and shall here only declare , whence , i conceive , this error ( that tithes are mere alms ) originally proceeded , to rectifie mistakes of the meaning of some antient authors , and clear two texts of scripture which some scholars and ignorant people misapprehend . first , i conceive this error sprang originally from the misunderstanding of that text of deutr. . , . at the end of three years thou shalt bring forth all the tith of thine encrease the same year , and shalt lay it up within thy gates . and the levite ( because he hath no place , no inheritance with thee ) and the stranger , and the fatherlesse and the widow , which are within thy gates shall come , and shall eat ( thereof ) and be satisfied ; that the lord may bless thee in all the work of thine hands which thou doest ; compared with deutr. . , , . when thou hast made an end of tithing all the tithes of thine encrease , the third year , which is the year of tithing , and hast given unto the levite , the stranger , the fatherless and widow , that they may eat within thy gates , and be filled ; then thou shalt say before the lord thy god , i have brought away the hallowed thing out of mine house , and also have given them unto the levite , and unto the stranger , to the fatherless and to the widow ; according to all thy commandements which thou hast commanded me ; i have not transgressed thy commandements , neither have i forgotten them ; i have not eaten thereof in my mourning , neither have i taken away ought thereof for any uncleaness , nor given ought thereof for the dead , but have hearkned unto the voyce of the lord my god , and done according all thou hast commanded me : to which that of amos may be referred . from which texts some have conceived , that the israelites paid tithes only every third year . ly . that they paid them then not to the levites only , but to the stranger , fatherless , widows and poor amongst them , who had a right and share in them as well as the levites . ly . that these texts use the phrase not of paying tithes , as a debt or duty , but of giving them as an alms ; and seeing they are given thus to the stranger , fatherless , widow as alms ; therefore to the levites likewise , here coupled with them . this doubtless was the true ground that tithes were reputed mere alms by some , and not a divine right peculiar to ministers . to disperse these mists of error . first take notice , that neither these , nor any other texts in scripture stile tithes almes , much lesse pure almes , which men may give or retain at their pleasures . ly . that they expressely resolve the contrarie that they are no alms at all in the objected sense , but a most certain positive commanded debt and dutie , no waies arbitrarie in the least degree . for . by express positive laws and commandments of god oft repeated , all the particulars of this dutie are defined . . the quota pars or quantitie : all the tithe of thine encrease the same year . ly . the time of it : every third year , which is the year of tithing , at the end of three years . ly . the place of stowage : thou shalt lay it up within thy gates . ly . the persons who must receive it : the levite , stranger , fatherless , widow . ly . the place of their receiving it : within thy gates . ly . the manner of receiing it : they shall come and eat thereof and be filled . secondly , which is most considerable , the owners and tithe-payers had no disposing power over it for their own uses upon any occasion or necessitie . for , . they must bring all of it out of their houses as an hallowed thing . ly . they must make a solemn protestation before the lord , that they had given it all to the levite , stranger , fatherless , widow , and that not of their own free voluntarie bountie , but as a bounden debt and dutie , according to all gods commandments which he had commanded them . ly . that they had neither wilfully transgressed , nor negligentlie forgotten his commandments herein . . that they had neither eaten thereof in their mourning ( in times of want and distress ) neither had they taken away ought thereof for any unclean use , &c. but have hearkened to the voice of the lord their god , and done according to all that he commanded them : the reason of which protestation was , because god committed the custodie and dispencing of these three years tithes to the owners themselves , who might be apt to purloin and pervert part of them to their own private uses . i appeal now to all mens consciences , whether these very texts do not unanswerably prove tithes to be no alms or arbitrary benevolence at all , but a most precise , positive , certain debt and duty , most punctually limitted in each particular ? and whether that we now usually call alms to the poor , be not a debt and duty , as rom. . . with other texts resolve it , not a meer freewill gift , which we may neglect or dispence with as we please . having cleared the text as to alms , i shall next vindicate them from the other mistakes concerning the time of tithing , and persons receiving tithes . for which end we must know , that the jews had four sorts of tithes , as the scriptures and a marglnal authors prove , besides their first fruits , amounting to any proportion from the th . to the th . part amongst the pharisees who exceeded others in bounty , . such tithes as every of the laity in every tribe of israel , who had any comings in , or increase at all , paid unto the levites , out of their annual increase that was eatable or usefull for them , as a sacred inheritance , possession and reward for their service at the tabernacle ; being the full tenth part of their increase , after the first fruits deducted : which tithes they received in kinde at their respective cities and places of abode : and if any tithe-payer would redeem or compound for them , he was to adde a fifth part more than they were valued at ; because the levites should not be cheated by any undervalues , and those who redeemed them did it only for their own advantage for the most part , not the levites ; and then they should pay for it . these are the tithes prescribed levit. . , , , . numb . . , to . which the levites and their households were to eat in every place , where they resided , as their peculiar portion and inheritance ; wherein the stranger , fatherless and widow had no share , neither were they brought up to jerusalem , nor put into any common treasurie ; and paid constantly every year . and these are the tithes which our ministers now challenge and receive by a divine right , as their standing inheritance , and the churches patrimonie : and the tithes intended heb. . , , , . ly . such tithes as the levites paid to all the priests , as most affirm : or to the high priest only ( as lyra , tostatus , and some other popish authors assert , to justifie the popes right to tenths , which he challengeth and receiveth for the rest of the popish clergie in all places ) for their better maintenance and support besides their first-fruits , fees of sacrifices , oblations and other duties , being the full tenth part of the tithes they receive from the people ( due to the whole body of the tribe of levi ) numb . . . to . ly . a second tenth , which the lay israelites were obliged by god , to pay every year out of their nine parts remaining after separation of the first tenth here mentioned ; and this was likewise of all their annual increase of corn , wine , oil , cattel , sheep , honey , and things eatable ; this tithe was by gods special appointment to be carried up to the place which god should chuse , and to jerusalem in kinde , by the places that were near ; and the full value thereof in money by places more remote . which tithes and money were designed for the maintenance of their publick solemn standing feasts every year , wherein the owners , priests , levites and all the people feasted together before the lord. the residue was laid up in storehouses , treasuries and chambers together with the first-fruits and offerings for the maintenance of the priests and levites dwelling in jerusalem , having no abiding elsewhere in the countrey , and for those who came up thither in their courses and served in and about the temple ; of which some selected priests and levites who were faithfull had the oversight and distribution ; not any lay treasurers , officers or sequestrators who would be singering all our ministers tithes now , and reduce them to a publick treasurie , to fill their private purses with them . these are the tithes commanded , specified , and principally intended : deut. . , , , , , , , . c. . , to . chron. . , to . neh. . , , . c. . . c. . , to . mal. . . which tithes were abolished with the jewish feasts and temple : yet the shadow and footsteps of them continued many years after in the primitive christians love-feasts , as mr. mountague proves at large . ly . the fourth sort of tithes which the lay israelites paid , was that for the levite , stranger , fatherless and widow , payable only every third year out of all that years increase ; after the separation of the forementioned tithes for the levites , priests and annual feasts ; which the owners kept in their own barns , and were to be eaten by the levite , stranger , fatherless , and widow , within their gates and houses , deut. . , . c. . , to . now in allusion to the last kinde of tithes , st. ambrose sermone in die ascentionis , st. jerome in mal. . st. augustine , sermo : . de tempore , & ad fratres in eremo , serm. . caesarius arelatensis , de eleemosyna , hom. . eutropius in the life of st. steven , c. , . the exhortation written about an. . beda eccles . hist . l. . c. . agilardus contra insulsam vulgi opinionem de grandine , &c. p. . ivo carnotensis , epist . . the synod of york under hubert , an. . and some others , press the payment of tithes to ministers , and giving alms , or some part of their goods to the poor , jointly together ; and some few of them stile tithes , tributa refectorium animarum : the tribute ( not alms ) of the poor souls ; and tell us of tithes which god himself hath commanded to be given to the poor . but this they intend not , of the first sort of tithes due to the ministers of god ; but of a tenth of their remaining annual increase after the ministers tithes first paid ; as most of them expresly declare . viz. hierom. on mal. saltem judaeorum imitemur exordia , ut pauperibus partem demus ex toto : & sacerdotibus & levitis honorem debitum et decimas referamus , de sua particula ( not the ministers ) pauperibus ministrare ; and the english synod of calchuth , an. . with capitularia caroli magni , l. . c. . most distinctly ; decimas ex omnibus fructibus & pecoribus terrae annis singulis ad ecclesias reddant et de novem partibus que remanserint eleemosynas facient . so as there is nothing in scripture or antiquity rightly understood to prove tithes to be pure alms , as some have erroniously fancied . the second ground of this opinion , that tithes were free and pure alms , was the frequent grants , donations and consecrations of tithes and portions of tithes by several lords of mannors and lands by special charters yet extant , recited in mr. a seldens history of tithes between the year of our lord . and . ( in the darkest times of popish superstition ) to abbies , monks , friers , nunnes , and religious houses in eleemosynam pauperum ; in liberam puram et perpetuam eleemosynam ; to be distributed by these monks , or their almoners to the use of the poor pilgrims , strangers , widows , and orphans , in general , at their discretion , or particularly of such and such parishes ; and they supposing the monks to be most charitable to distribute them to the poor ; most of which grants or all were made by the consents of the bishops of the diocess and confirmed by them , and many of them with the assents of the patrons and encumbents of the churches . and sometimes whole churches with their tithes were thus granted and impropriated to monasteries and monks , in jure perpetual frankalmoigne , to the starving of the peoples souls , to pray for their patrons when deceased , and seed the bodies of the poor without their souls ; whence all or most of our appropriations and impropriations really sprang , to the great prejudice of ministers maintenance , and parishioners souls . upon this ground a many monks and mendicant fryers who were no part of the ordained ministry , ( just like our vagrant anabaptistical and unordained sectarian predicants now ) to rob the ministers and most priests of all their tithes , engross them into their own hands and disposal to enrich themselves and their monasteries , everie where cryed up tithes to be pure almes , which everie man might bestow where he pleased , and that themselves ( having renounced the world , and vowed povertie ) were fitter to receive and dispence them than the secular parish-priests ; and made this doctrine a very gainfull trade , whereby they got most of the best benefices of england , and a b great part of the tithes into their own possession , to the great prejudice of the church . and not content herewith , the premonstratenses and other orders procured a bull from pope innocent the d. about the year . to exempt all their lands which themselves manured , and all their meadows , woods , fish-ponds , from paying any tithes at all to parish-priests or others ; that they might bestow them in alms , or on the poor of their monasteries , as they had requested them from the pope ; as the words of the bull attest : after which they invented other bulls ( condemned in our parliament by a special act ) to exempt their tenants likewise from paying tithes , under the same pretext . and this is the true ground and original of that monkish opinion , that tithes were pure alms , and that men might give them to whom they pleased : which grant of tithes to monasteries , monks , and exemptions of their lands from paying them , upon pretext of giving them in alms , to the great prejudice of the ministers ( perdenda basilica sine plebibus , plebes sine sacerdotibus , sacerdotes sine reverentia , & sine christo denique christiani , bernard epist . . ) was severely censured and sharply declaimed against by st. bernard and hugo partimacensis , epist . ad abbatum & conventum nantire monasterii after ivo . his epistles , p. . ( a most excellent epistle against this practice ) the council of vienna , an. . joannis sarisburiencis , de nugis curialium , l. . c. . petrus blesensis , epist . . petrus clamianensis , epist . l. . epist . . and the monkish assertors of this doctrine , that tithes were pure alms , and disposable to whom the people would ; were by a pope innocent the th . stiled and censured in these terms , isti novi magistrique dicent & praedicant contra novum et vetus testamentum : yea richard archbishop of armaugh complained much against these greedy unconscionable monks in his defensorium curatorum , for possessing the people with this opinion , that the command of tithes was not moral , but only ceremonial , and not to be performed by constraint of consciences to the ministers and curates , and that what lands or goods soever were given by any of the four orders of mendicants ought to be exempted from paying tithes to ministers in point of conscience ; which he refutes ; from these monks john wickliff , walter brute , and william thorp ( living in that blind age ) took up their opinion : that tithes were pure alms , and that the people might give them to whom they please , if they were godly preachers ; and their parish priest , lazy , proud , and wicked , which opinion of wickliff was refuted by b thomas waldensis as erronious , and condemned in the council of constance . this i have the longer insisted on , to shew how canne and the rest of our anabaptistical tithe-oppugners , revive only these old greedy monks , friers tenents and practices for their own private ends and lucre ; to wrest our ministers tithes from them into their own hands or disposing , and exempt their own lands and estates from paying tithes , that so we may have churches without people , people without ministers , ministers without due reverence , and finally christians without christ ; as a bernard writes they then had by this monkish sacrilegious doctrine and practice . the fourth objection ( much insisted on as i hear ) against our coercive laws and ordinances for ministers tithes , is this common mistake , that the payment of tithes to ministers as a parochial right and due , was first setled by the popish council of lateran , under pope innocent the d. an. . before which every man might freely give his tithes , to what persons or churches he pleased ; therefore it is most unjust , unreasonable to deprive men of this liberty , and enforce them to pay tithes to their ministers now by ●uch laws and ordinances . i answer , that this is a most gross mistake of some ignorant b lawyers , and john c canne ; for in the canons of this council , there is not one syllable tending to this purpose , as i noted above years since out of binius and surius in the margin of sir edward cooks . reports , fol. . where it is asserted ; which error he expresly retracts in his d . institutes on magna charta , d f. . the words of the council , can. . plerique ( scut excipimus regulares , & clerici seculares interdum ) dum domos locant vel feuda concedum in prejudicium parochialium ecclesiarum , pactum adjiciunt ; ut conductores & feudatorii decimas eis solvant , & apud eosdem elegant supremam : cum autem id ex avaritie radice procedat , pactum hujusmodi penitus reprobamus : statuentes , ut quicquid fuerit ratione hujusmodi pacti praeceptum , ecclesiae parochiali reddatur . by which constitution it is apparent , first , that parish priests and churches , had a just parochial right to the parishioners tithes within their precincts before this council , else they would not have awarded restitution to them of the tithes received ; and that they had so ordered and decreed it by sundry councils and civil laws some hundreds of years before , is apparant by the . council of cavailon under charles the great , an. . can. . synodus ticimensis under lewis the d . an. . the council of mentz under the emperour arnulph , an. . can. . the council of fliburg , an. . can. . the decree of pope leo the th . ( attributed to gelasius by some ) about the year . the council of wormes and mentz ( about that time or before ) cited by gratian , caus . . qu. . the council of claremont under pope vrban , an. . ( these abroad ) and at home in england , the ecclesiastical laws of king edgar , an. . c. , . the council of eauham under king edgar , an. . and his laws near that time , c. . and the council of london under archbishop hubert , an. . ( years before this of lateran . ) all which enjoyn the people to pay their tithes to their own mother-churches where they heard divine service , and received the sacraments , and not to other churches or chapels at their pleasures , unless by consent of the mother-churches . hence petrus blesensis archdeacon of bath , about the year . ( . years before the council of lateran ) in his . epistle writes thus to the praemonstraticatian monks , who procured an exemption from paying tithes out of their lands , that their lands were obnoxious to tithes , before they became theirs , and were paid hitherto , not with respect of persons , sed ratione territorii : but by reason of the territory and parish precincts . and pope innocent the d. his decree dated from lateran , an. . ( mistaken for the council of lateran ) cited in cooks instit . p. . was but in confirmation of these precedent authorities . ly . the abuses complained against and reformed by this council , was not the lay parishioners giving away of their tithes from their own ministers and parish-churches at their pleasures ( not a word of this ) but a new minted practice of most covetous monks , religious houses , and some secular clerks , to rob the parish-churches and ministers of all the tithes of the lands held of them , by compelling their tenants and lessees by special covenants in their leases and bonds , to pay their tithes arising out of their lands , only to themselves and their monasteries : not to their parish churches as formerly ; which the pope and this great general council resolve , to proceed merely from the root of covetousness , ( let canne and his comrades observe it , who pretend conscience to be the ground ) whereupon they condemn , reform , this practice , null the covenants , bonds , deformations , and decreed restitution of all profits by these frauds to the parish-churches . and was not this a just , righteous and conscionable decree , rather than an antichristian and papal , as canne magisterially censures it ? ly . admit the parochial right of tithes first setled in and by this council ( which is false ) yet being a right established at . years since , confirmed by constant use , custom , practice ever since allowed by the common law of england , ratified by the great charter of england , ch . . with sundry other a s●atutes , acts of parliament , canons of our councils and convocations ; and approved by all our parliaments ever since , as most just , expedient , necessary : yea setled on our parish churches by b original grants of our ancestors for them , their heirs and assigns for ever , with general warranties against all men , with special execrations and anathemaes denounced against all such who should detain or substract them from god and the church , to whom they consecrated them for ever ; and that as sacred tribute reserved , commanded by god himself , in the old and new testament as a badge of his vniversal dominion over them and their possessions , held of him as supream landlord ; as the c council of london under archbishop hubert , in the d . year of king john , with another council under archbishop replain , e. . the council under archbishop stratford with others resolve . there neither is nor can be the least pretext of iustice , reason , prudence , law or conscience for any grandets in present power , by force or fraud , to null , repeal , alter this antient right and unquestionable title of our ministers to them now ; and set every man loose to pay no tithes at all , or to dispose of them how and to whom they will at their pleasure , to destroy our churches , ministers , parishes , and breed nothing but quarrels and confusions in every place and parish at this present , when all had now need to d study to be quiet , and to do their own business ; and not to disturb all our ministers and others rights without any lawfull call from god or the nation . which unparalleld incroachment on our ministers and parish-churches rights , if once admitted , countenanced , all the people in the nation by better right and reason may pull down all the fences and inclosures of fields , forests , or commons made since this council ; deny , substract all customs , impositions , duties , rents , payments publick or private imposed on , or reserved from them since that time by publick laws , or special contracts , and pay all their rents , customs , and tenure-services , to whom and when they please ; which our grandy late army-purchasors of kings , queens , princes , bishops , deans and chapters lands , with other opposers of tithes may do well to consider for their own advantage and security , their titles to them being very puny , crazy , disputable , in comparison of our ministers to their tithes . now whereas a thomas walsingham , randal higden a monk of chester in his polichronicon , and henry abbot of leycester write ; that the general council of lyons ( in france ) under pope gregory the tenth , an. . decreed ; ( what others ignorantly attribute to the council of lateran aforesaid , an , . ) vt nulli homini deinceps liceat decimas suas ad libitum , ut antea , liceat assignare , sed matrici ecclesiae omnes decimas persolverent : which seems to imply , that before this council every man might give his tithes from the mother church to whom he pleased , notwithstanding the council of lateran and innocents decrees . i answer , . that there was no such canon made in this council , as these ignorant monks mistake , which is undeniable by the acts and canons of this council , printed at large in binius , surius , and other collectors of councils ; but only one canon , against clergy-mens alienation of the revenues of the church ; and another against the vsurpation of the churches revenues by patrons in time of their vacancy : which have no affinity with that they mention ; which if true , then that which canne and others object , that the council of lateran made this inhibition , and took away this liberty of disposing tithes at pleasure from the parishioners , is false , as i have proved it . secondly , that from this mistake of these monks it was ( as mr. b selden probably conjectures ) that william thorp ignorantly affirmed , that one pope gregory the tenth first ordained new tithes first to be given to priests now in the new law. john canne to manifest his great ignorance both in history and chronologie , in his second voice from the temple , p. , . writes thus . before the council of lateran , which was under innocent the third , any man might have paid his tithes to any ecclesiastical person he pleased ; but by that council it was decreed , that tithes should be paid to the parochial priest : ( which i have proved a grosse forgerie ) and then he addes , william thorp saith , that pope gregory the tenth , was the first , that ordained tithes to be paid to priests , in the year . fox , p. . wherein , . he mis-recites thorps words , who speaks not of tithes in general , but only of new tithes : not antiently paid by the jews , nor prescribed to them by god. and is this square dealing ? ly . he subjoyns the time ( which thorp and master fox do not , ) referring this decree of gregory the tenth , to the year . which was four years before the council of lateran , by his own confession and falls within the popedom of innocent the third , and is no less than . years before the council of lyons under gregory the xth. and his papacy ; there being no less than seven popes intervening between this innocent and gregory , as platina , onuphrius , in their histories of popes lives , and binius , spondanus , oxenetius , matthew westminster , the centuries of magdenburg , mr. fox himself and heylin affirm . and most certain it is , that neither this pope gregory , nor the council of lyons under him , nor of lateran under innocent , made any such decrees concerning tithes , as canne here boldly asserts ; and with these two forgeries , he most impudently concludes , the payment of tithes is popish , nothing more certain , ( when as nothing is more false or fabulous ) and so within the d . article of the covenant of the two nations ( nothing more untrue , both in the intentions and explanations of the makers and takers of that covenant , as their several ordinances for tithes both before and after it demonstrate ) which many have sworn ( not he nor his consederates , or else perjured with a witness , if they have done it , in every clause thereof ) to endeavour the extirpation of superstition and all kind of popery , ( therefore of all monkish , popish substractions of , and exemptions from payment of tithes to their parochial ministers fore-recited , invented , granted by popes , and real popery ) and therefore as it is a case of conscience ( for those who have taken the covenant to pay tithes , not for any man whatsoever , especially covenanters to retain them ) so men ought to be carefull either how they press it , or practise it . so this father of lyes and forgeries concludes against all truth and conscience , and dares aver to those he stiles , ( let himself determine quo jure ) the supream authority of the nation , the parliament of the common-wealth wealth of england , to engage them sacrilegiously to rob all our ministers both of their rectories , tithes , ministry at once ; to starve and famish ( they are his own uncharitable anabaptistical words , p. , . ) these antichristian idols , which if they neglect speedily to do , he more than intimates ( in his epistle to them , and let them and all others observe it ) the lord ( you may guess whom he means ) shall lay them aside , as despised broken idols and vessels in whom his soul hath no pleasure : like those who sate there before them : just john of leydens doctrine and practice . it is storied of sacrilegious philip of macedon ( by a polybius and others ) in aras et templa saeviit , ipsos etiam lapides infringens , ne destructas aedes posthac restitui possint , and that to raise monies to pay his all-devouring army ; and of dicaearchus ( his atheistical general , as impious as his soveraign ) that returning victoriously from sea , he built two altars , one to impiety , the other to iniquity , and sacrificed to them as to gods. certainly b john canne , who would have all our churches razed to the ground , and not a stone of them left upon a stone unthrown down , that they might never be built again , ( the true voyce of a son of edom and c babylon ) and all our ministers rectories , tithes , food and maintenance , whereby they are fed and kept alive , taken away by the magistrates , ( and that to maintain the army and souldiers , as some design ) would be a very fit chaplain for such a sacrilegious king and general ; and a fit priest or minister for these two infernal deities of impiety and iniquity , the only gods , which too many pretended saints and anabaptists really serve , worship in their practice . but let canne with all his impious , unrighteous , seduced disciples , patrons , remember that blessing which dying moses , that man of god , ( a better president , general for christians to follow , than these pagan atheists ) bestowed on the tribe of levi ( a extending to all true ministers of the gospel now ) with his bitter imprecation against all who invaded their substance , function , or rise up against their office , recorded thus for their shame and terror , deuter. . , , , , . this is the blessing wherewith moses the man of god blessed the children of israel before his death . and of levi he said , let thy vrim and thy thummim be with thy holy one : for they have observed thy word , and kept thy covenant . they shall ( or let them ) teach jacob thy judgements , and israel thy law : they shall put incense before thee , and whole burnt sacrifice upon thine altar . blesse o lord his substance , and accept the work of his hands : smite through the loyns of them that rise up against him , and of them that hate him , that they rise not again . which i shall recommend to john canne for his next text , when he preacheth before his fraternity of anabaptistical tithe-oppugners , and church-robbers ; to all injurious substracters of their ministers tithes , and professed enemies to their calling . and so much for the third proposition . chap. iv. i now march to the th . proposition , that our ministers tithes are really no burthen , grievance or oppression to the people ; but a just antient charge , debt , annuity or duty , as well as their landlords rents , or merchants poundage . that the abolishing of them , will be no real ease , gain , or advantage to farmers , lessees , and the poorer sort of people ( as is falsely pretended ) but only to rich landlords and landed-men , and a loss and detriment to all others . there have been divers clamorous petitions of late against tithes , subscribed by many poor people , labourers , servants , apprentises , who never were capable in their estates to pay any ( not by the nobility , gentry , and freeholders of the nation , or the generality of those whose estates are most charged with them , who repute them no burden nor grievance , and desire their continuance ) as if they were the very bonds of wickednesse , the heavy burdens and yoak , which god himself a by an extraordinary call , hath called forth some in present power speedily to loose , undo and break , isay . , . to which they allude , and much insist on , when as it is most clear , that this perverted text was never once intended of tithes , which god himself imposed on his people , as a just reserved rent and tribute due unto himself and his ministers , and adjudgeth it plain b robbing of god to substract , much more then to abolish , and those who press the abolishing of tithes from this text , may with much more colour urge it against all landlords rents , annuities , tonnage , poundage , the antient customs of wool , woolfels , leather , tinne , lead , which they and their ancestors by their tenures and our known laws have paid time out of mind : and presse those in power to expunge these texts out of the very gospel , as apochryphal and burdensom , mat. . . render to caesar the things that are caesars ; and unto god the things that are gods ( a clear gospel-text for the payment of tithes , which are gods own tribute and portion , levit. . , . mal. . , . ) and rom. . render therefore to all their dues , tribute to whom tribute is due , custom to whom custom , &c. against both which they directly petition , as the premises demonstrate . this calumny and wresting of scripture being removed , i shall thus make good the first branch of the proposition . i have already manifested by undeniable antiquities , laws , records , that tithes were freely given to and setled on our church and ministers , by our pious kings munificence , charters , laws , with the general applause and consent of all the nobility and people , upon the very first setlement of religion in this island , many hundred years before we read of any publick taxes for defence of the realm , or maintenance of the warres by land or sea , the first whereof was a dane-gelt ( first imposed by common consent of the lords in parliament , an. . ) or before the antientest yet continued custome on wool woolfels and skins exported , first granted by parliament in e. . anno dom. . at least . years after the first extant grant , law and setlement of tithes in perpetuity , as a divine duty , rent and service for the necessary maintenance of gods ministers and publick worship . this most antient , annual rent , charge or tribute unto god , hath inviolably continued in all publick changes and revolutions of church and state ; britons , saxons , danes , normans , english , papists , protestants , conquerors , invadors , right heirs , and lawfull purchasers , intruders , disseisers , lessees of all sorts , whether publick persons or private , maintaining , confirming , rendring their tithes successively , as a divine and sacred quit-rent due to god , wherewith they came charged into the world , till they departed out of it ; laying down this for a principle of divinity , law , equity ; b that god alone hath given to every man the lands and all he holds and possesseth , whereby he gains his food and living ; and therefore out of the land and trade , whereby every one gets necessary supply for his body , he ought to contribute a tenth and tribute towards the service of god , and salvation of his soul , much better than his body ; as augustine in his . sermon . tom. . and the antient saxon canons of an uncertain time and author resolve . there was no purchaser , heir , inheritor , farmer , tenant , or lessee of lands in our whole nation , that paid tithes out of it , since tithes first setled in this kingdome ; but he inherited , purchased , took and held his lands charged with tithes ; whence our a law-books resolve , that no lay-man can by the very common law of england , allege any custome or prescription , for not paying tithes ; but only a modus decimandi in recompence of his tithes ; which he may in some cases plead , because grounded on some antient contract and a valuable consideration in lieu of tithes . moreover , as all men took their purchases , farmes , leases or inheritances , by descent thus charged ; so this charge was universally known to all purchasers , lesees , and the full annual value of the predial tithes they pay out of their lands , or leases , abated them in their purchases , rents , fines , by the venders and lessers , of purpose to defray the publick necessary annual charge ; which if the lands had been tithe-free , had been proportionably raised , to the common value of the tithes , in the purchase-moneys , fines , or rents ; and will be so by every seller of lands , and land-lord , when ever tithes be suppressed . this being a clear undeniable truth , which every rational man must subscribe to ; it is certain , no person this day living , complaining or not complaining against tithes , can in verity , equity , justice , reason , repute or call them , either an unjust or oppressing yoak , bond , burden ( as many ignoramusses do , without sense or reason ) nor any burden or charge at all to him , since he had , or rather hath the full annual value of them allowed him in his purchase , fine , or rent , by him that sold or leased his lands unto him . and although it be true , that in such tithes as the earth doth not naturally produce without labour ( as it doth grasse , wood , fruits , ) viz. corn , hops , saffron , woad , and the like , the minister enjoyes the tenth of the husbandmans increase , seed , labour and costs in tillage and improvement ( the great objection against tithes as an heavy burthen , and oppression ) yet all this pretended great cost and charge ( except only in cases of improvements ) was altogether , or for the most part allowed and defalked in the purchase , rent , or fine ; which if tithe-free would have a been , ( and when made tithe-free , will be ) raised to the full value of the tithes , even one years purchase more in ten sales , and . rent more in every pound each year upon leaser , as all understanding men knowing what belongs to purchases , sales of lands or leases must acknowledge . and that farmer , purchaser , or improver of lands , who deems not his faithfull ministers prayers , preaching , pains , and gods blessing on his seed , crop , estate , soul , family , b promised and entayled to the true payment of tithes , and are only procured by his ministers prayers , without which his seed , crop , and all his estate would be blasted with a curse , & amount not to a tenth part , of what he now enjoys by gods promise and blessing by paying tithes , and his ministers prayers ; deserves not the name of a rational man , much lesse of a christian ; and can expect nothing but gods curse upon all he sowes , plants , enjoyes , instead of a blessed crop or harvest . all which considered , i appeal to any christian , or rational mans conscience , whether tithes be any such heavy , oppressing , intollerable , discouraging yoak , bondage , burden , oppression as some now declaim them , which gods chiefest saints before the law voluntarily rendred without murmuring , and chearfully vowed , paid unto god without a law , and his antient people rendred without murmuring ( though double to our tithes now ) by an express law , during all the levitical priesthood , and all our own ancestors , as well protestants as papists , have for so many hundred of years chearfully rendred without dispute , and all now living came charged with into the world , and were thus allowed the value of them in their purchases , fines , and leases . and whether all tithe payers have not far more cause to petition against all old and new rent-services , rent charges , annuities , quit-rents , statutes , debts , wherewith they were charged by their ancestors grants or contracts , and of all the antient customs for merchandize for defence of the seas or realm , as intollerable oppressing burdens , yoaks , grievances ( as the levellers and anabaptists in some late printed papers stile all customs , tonnage , poundage , impositions whatsoever , as well as tithes , our excises , or monthly taxes , of new illegal formation , as well as imposition ) than thus to murmur , complain , petition against their predial tithes , our ministers chiefest livelihood , except in cities which have no tillage , woods , or meadows ? and so much brieflly for proof , that tithes are no real grievance , burden , oppression , to gods people ; especially since orignally granted and commanded by god himself , whose commandements are not grievous , john . . and whose heaviest yoak is easie , and burden light , matth. . . and those new-saints , who shall think otherwise of this divine commandement , yoak , and burden of tithes , under the gospel , give the gospel it self and christ the lye herein . for the d . branch , that the abolishing of tithes will be no real ease , gain , or advantage to farmors , lessees , and the poorer sort of people , lyable to pay tithes ( other poor being not concerned in the controversy , whose poverty it self ex-exempts them from this surmised grievance ) but a gain and benefit , only to rich landlords and landed-men , is apparent by the premises . for no sooner shall tithes be abrogated , but every landlord will raise the full annual value of them in his annual rents , or fines , and exact more for them from his poor tenants , farmers , lessees , than they might have compounded for with their ministers : and where then is their expected gain , or ease , wherewith they are deluded by impostors ? as for the rich landlords , they complain not of tithes as a burden , and need no exemption from them : and as all predial tithes now really issue out of their inheritances charged with them in perpetuity , who therefore abate , allow the full value of them to their farmers and tenants in their fees and rents , by way of defalcation , they being in truth the greatest and most considerable tithe-payers , not the poor farmers , or under tenants : so their inheritances only will be much improved , augmented by tithes abolishing at least one part in ten ; whiles the poor ministers and families shall be starved , and the tenants then more racked by the landlords than by the ministers now . and this is the godly goodly ease this saint-like project will effect , if put into execution , by which none will be real gainers , in their temporal estate , but those who have inheritances ; and all losers in their spiritual estate , by the losse or great discouragements of their ministers , hebr. . . this will appear by the practice of some greedy land-lords of old , thus recited , condemned in this decree of the council of lateran under pope innocent the d anno . in aliquibus regionibus , &c. ( i will english it , that our country farmers may the better understand it , ) in some countries there are a stupid ( or mungrel ) sort of people who living according to their custom , although they have the name of christians ( i doubt canne will say they were anabaptists , and his godly predecessors ) some lords of farms ( or lands ) let them out to these men to manure ( ut decimis defraudentes ecclesias , majores inde redditus assequantur ) that by defrauding the church of tithes , they may gain the greater rents from their tenants ( equivalent no doubt to their tithes , where then is the tenants gain by any hoped exemptions from tithes ? ) being willing therefore to provide remedy for these prejudices , for the indemnity of churches , we ordain that the landlords themselves shall commit their farms to be leased to and tilled by such persons , and in such sort , that without contradiction they may pay tithes to churches with integrity ( or their intire tithes without any deduction : ) and if there shall be need , let them be thereto compelled by ecclesiastical censure , for these tithes are necessarily to be paid , which are due by divine law , or approved by the custom of the place ( though not within the letter of the divine law , is the councils meaning , not any modus decimandi of ought within gods law , against which no custom can or must prescribe ) let all country-men learn from hence , what they will get by abolishing tithes , if voted quite down . nay let them consider well , whether the real designs now on foot , prosecuted by some army - officers and souldiers , be not to vote down tithes , just as they did the crown lands ( formerly a reputed sacred , and incapable of any sale , because the common standing inheritance of the whole realm to defray all ordinary publick expences in times of peace and war , to case them of all subsidies and taxes whatsoever , except one in three or four years upon extraordinary occasions , granted in full parliament for their safety ) even to vote them only from the ministers , and get them into their own hands , to help pay themselves and the army , under pretext to ease the people in their taxes ; and yet continue their taxes still upon them in the same extream ( or an higher ) proportion as heretofore , though they take their tithes to boot , without easing them one farthing in their contributions , as in case of the kings , princes , bishops , deans and chaptets lands . surely these officers and souldiers who pretend so much liberty and ease to the people in words , and still so oppress them in deeds , as not to ease them one penny in their former unsupportable taxes , excises ( which their ancestors never knew nor paid ) under which they have for some years groaned , though all ireland be now reduced , england in peace within it self , and scotland under contribution , and take upon them to impose such illegal taxes now without any parliament by their own super-regal authority , transcending all presidents of our kings and their councils out of parliament , can never be presumed , to tender their ease and gain so much , as to permit them or their land-lords , to put up into their own private purses so great and constant an annual revenue as their tithes amount to , unto which they have neither legal right nor title , but will appropriate it to themselves ( as they have done church-land and crown-land too ) for their future pay , or past a●rears ; and some of them have confessed so much . and which then think you will prove the better tithe lords , ministers or souldiers ? for the third branch : that the abolishing of tithes , will be a loss and detriment to all others , excepting land-lords , and landed men ; i shall thus demonstrate . . it will be so to all our ministers and their families , tithes being their principal livelihood . ly . to all such colleges , hospitals , corporations , schools , all or part of whose revenues depend on appropriated tithes and rectories , and to all their farmers and families . ly . to all impropriators and their lessees , which are very many ; there being by a mr. cambdens and others computation , . parishes in england , whereof . ( of the best value , for the most part ) are impropriated or appropriated . and the abrogation of tithes without giving competent recompence to all impropriators , as well body politicks as natural and their lessees , ( which how it can be done now bishops , deans and chapters lands devoted and voted once for their satisfaction , are sold to pay the souldiers , i cannot yet discern ) will ruine many colleges , hospitals , schools , with other corporations , and thousands of families depending on them . ly . all tenants and farmers will be losers by it , in their estates , as well as souls ; for then the land-lords will raise the full improved value of their abolished tithes in their fines and rents ; and if they have a godly able minister to instruct them for their salvation , and spiritual weal , they must hire and pay him out of their own private purses only , while their land-lords or others purse up their tithes whereon now their ministers live without further charge unto them ; and which is more chargable , they must pay their ministers share of taxes and other publick payments to boot out of their own purses and estates , which now are defrayed wholly by ministers themselves : and so instead of hoped ease , by abolishing tithes , they shall but draw a causless perpetual charge on themselves and their posterities , as our new projectors have done , by the sale of all the crown lands and revenues to themselves , and their friends and souldiers at easie rates , to enrich themselves , which should have defrayed all publick ordinary charges as they ever have done , which now must be raised out of the peoples private purses only , whiles these new statesmen and souldiers purse up and enjoy the publick revenues which should defray them ; and tax the impoverished nation at what extraordinary uncessant rates they please , and then dispose of them at their pleasures , when levyed to themselves and their creatures ; the only way to make our taxes both easeless and endless , to the peoples utter ruin , and their own extraordinary enriching by their spoils . ly . the poor people in every parish will lose the charitable relief they receive from their ministers , who in many places were and still are a grest relief to the poor and impotent by their liberal charity and a hospitality ; now much decayed by heavy and endless taxes , and unconscionable substractions of their tithes , by sectaries , souldiers and lawless covetous earth-wormes . ly . i must truly inform and tell all such farmers , tenants and other deluded countreymen , who think to gain much ease and profit , by the abolishing of tithes for the future , they shall soon repent of , and be doubly burthened hereafter to the uttermost improved value of them in the augmentation of their taxes to the souldiers , who will be harder new iron land-lords , tithe-lords to them , than their ministers now are . this was st. b augustines observation long ago , recorded by c gratian , d bochellus with many others , and made good by many practical experiments in former and latter ages : his words are these . our ancestors did therefore abound with plenty of all things , because they gave tithes to god , and rendred tribute to caesar . modo autem quia decesserit devotio dei , accessit indictio fisci . nolumus partire cum deo decimas , modo tollitur totum . hoc tollit fiscus quod non accepit christus . that is , but now because our devotion to god ( in paying tithes ) is departed , the sequestration of the exchequer is come , ( both on tithes and lands ) we would not pay our tithes unto god , now the whole is taken away ( in taxes and sequestrations ) the exchequer sweeps away that which christ doth not receive . and how many have found this true in our dayes , by sequestrators and swordmen , who have sequestr●d all the profits of their lands , as well as their tithes , and the ministers tithes and glebes to boot ? he addes . this is a most just custome , that if thou wilt not give god his tenth , thou shalt be reduced to a tenth of thy estate , et dabis impio militi , quod non vis dare deo et sacerdoti ; and thou shalt be forced to give that to a wicked souldier , which thou wilt not give to god and thy pious minister . this the whole synod . of lingon in france , anno . declared for , and observed as a truth in those daies . and angelus de clavasio in his summa angelica tit. decima sect . . in his time . petrus blesensis , arch-deacon of bath ( who flourished about the year of our lord . ) writes thus to the cistertian monks , who had then procured from the pope , a bull of exemption from paying tithes out of the lands and possessions of their order , epist . . ad cistercienses . you know that covetousness is the root of all evil : yet it is said , and we relate it with tears , that this mother of transgression , this mistris of ambition , this captain ( or ringleader ) of iniquity , this wagoner of mischief , this cutthroat of vertues , this original of sedition , this sink of scandals , hath dared to break in even to your congregation ; the votes and tongues of all men would be loosened into the commendation of your sanctity , if you did not forcibly snatch away that which is anothers ; if you did not take away tithes from clergy-men . this is a convectio ( or rapine ) little enough , but that which doth not a little dishonest your life . by the testimony of the scriptures , they are the tributes of needy souls . and what is this injurious immunity that you should be exempted from the payment of tithes to which the lands were subject , before they were yours , and which are hitherto rendered to churches , not out of respect of persons , but by consent of the territory ( mark now the just punishment upon them , for this their covetousness and exemption from tithe-paying ) milites galliarum sibi jus decimarum usurpant , &c. the souldiers of france usurp to themselves the right of tithes , and have no regard of your privileges : eas a vobis potenter extorquent : they extort them from you by the power of the sword. adversus eos debetis insurgere , non adversus clericos , aut ecclesiasticos clericos . you ought to rise up against them , but not against clergy-men , or the churches of clergy-men . laurentius bochellus recites & inserts it into his decret . eccles . gall. l . tit. . c. . p. . printed an. . from which authorities , i must tel all country farmers and others , now busling to exempt themselves by the power of the souldiers from paying their antient due setled tithes to their ministers , that they shall at last but only change the hand , and be enforced to pay tithes with a witness to the souldiers , even by obtaining their desires . whiles i was a late close prisoner in pendennys castle in cornwall under souldiers ( i never yet knew why ) i heard some officers there ( who had purchased crown-lands in cornwall , not for mony , but arrears of pay ) amongst other their new projects oft times peremptorily saying , we will have all tithes put down ; whereupon i told them , they should have done well to have added saint james his advise to their peremptory words and wills ; which he much censures ; by saying , as they ought to do : if the lord will , we will do this or that , james . , , , . which i thought they durst or could not subjoyn to their former words , because it was both against the will and command of god , that ministers tithes should be put down , especially by souldiers , who received far above the tenth part of them in monthly taxes for their pay ; and from whose practice of receiving constant pay for their military service , the apostle proves the lawfulness of ministers tithes and salaries under the gospel , cor. . . after which discoursing merrily with them , i told them , i conceived the true reason , why they and other officers formerly for tithes and ministers , were now so eager against both , was , because most of them had lately purchased so much crown , bishops , deans , and chapters lands charged with tithes , that now out of mere covetousness they would pull down tithes , to hook them into their own purses from the ministers , and though they were never purchased by them in their particulars to improve their over cheap purchases , to the highest advantage ; and because others should not blame them for it , they turned preachers themselves , that they might claim some seeming right to their own and others tithes , and save the charges of a minister . at which they gave a silent blushing smile , without a reply . not long after , about the beginning of january last there came a petition ready drawn to the castle , from the general council of the army-officers , sitting at st. james's ( as the souldiers themselves informed me ) directed to those , who then were stiled , the parliament of the common-wealth of england , and supream authority of the nation : though those who sent it knew the contrary , the supream power lay in others hands ; the effect of which petition was , for the total abolition of tithes of all sorts , as a jewish and antichristian bondage and burden on the estates and consciences of the godly ; and that for the future they and the people might not be insnared or oppressed with tithes , or any forced maintenance to the ministers , or any thing like it in the stead thereof . this petition all the officers and souldiers in the garrison by beat of drum , upon the change of the gards , were summoned three several mornings , ( just before my chamber window ) to subscribe , together with a printed letter sent from the said council of officers , to all the garrisons and souldiers in england . scotland , and ireland , concerning the heads of their intentions and designs then on foot ( and since executed ) desiring their opinions of , and concurrence with them therein by their subscriptions . this letter with the petition against tithes , were both read together to the souldiers three several mornings , who at the close every morning , gave two or three great shouts ; and afterwards subscribed both the letter and petition . one ensign and two common souldiers ( who had formerly read the worcester petition for tithes , which this was to countermine ) though they readily subscribed the letter , yet refused to sign the petition ; because they thought it very unreasonable to take away ministers tithes altogether , and provide no other maintenance in lieu of them ; for which they were threatned to be turned out of the garrison and cashiered ere long ( as i was informed by other souldiers ) all the rest subscribed it , and divers of them against their consciences ( as they confessed to me ) because they durst not displease their officers , nor those who sent it to them . some officers and souldiers of the castle ( who were most against all publick ordinances and ministers , never resorting even to their own meetings , and unordained speaking chaplains in the castle ) were sent and imployed into the country to get country-mens subscriptions to the petition against tithes , in the name of the well-affected godly people in the county of cornwall ; as if it proceeded from the country-men , not the officers and souldiers . in which service , these active stirring spirits were very industrious in all parts to procure hands to this petition , seducing divers to subscribe it , by misinforming them , that it was only against impropriators tithes ; which some honest religious gentlemen , substantial freeholders , and grand jury-men of the country being informed of , drew up a petition ( in the name of the gentry , freeholders , and others of the county , for the continuance of tithes and ministers setled maintenance , subscribed with many hands , and presented by the grand jury men to the justices at their general quarter sessions , to send up to those then in power , as the desire of the gentlemen , freeholders , and the generality of the county ) which petition ( as i have been informed ) was presented accordingly by one of the justices , by order from the bench , though one of his companions when it was delivered by the grand jury to him to present to the bench , had the impudence to tear the petition in pieces in open court , before he acquainted his associates with it ; for which he received a publick check . after the souldiers subscription of the foresaid petition against tithes in the castle , the like whereunto ( as some souldiers acquainted me ) was sent to most other garrisons and counties to subscribe , ( by which we see whence such and other petitions originally spring ) i demanding the reason ( of two or three souldiers who were ingenuous ) why they were so eager against ministers tithes , since they were ( spiritual ) souldiers as well as they , and themselves received above the tithes of their tithes in taxes for their pay ? who returned me this blunt clamorous answer , that they conceived the true reason of it was , that their officers intended to have the tithes themselves , or at least the full value of them in taxes for their pay ; that so the people much impoverished and complaining of their heavy taxes , might be able to hold out the longer to pay them , being seemingly eased by the souldiers in their tithes , though they took them all out again in their increased monthly contributions ; and that this was the private talk and opinion they had of this petition amongst themselves , but they must not speak of it in publick to any . i am not apt to be suspicious of any mens actions or designs , unlesse i see some probable grounds of inducement ; but if this be one principal design of the officers and souldiers present stickling against ministers tithes , to get them into their own hands in kind , ( as they have done much of the bishops , deans , chapters and crown-lands , & the rest in monies in their sales for their arrears & pay ) or at least to fetch them out of the peoples purses in doubled or augmented taxes , equivalent to their tithes in value , or exceeding them , ( as the premises perswade me to incline to ) the ease and gain either promised to , or expected by the people upon the abolishing of tithes , wil prove but a mere delusion and cheat at last ; and instead of easing them , will only double , treble and augment their heavy intollerable taxes ( now imposed and disposed too by the souldiers themselves alone , beyond all presidents of former ages , or kings of the worst edition ) and continue them the longer on their broken estates and drained purses . which will be but a most just , deserved divine punishment on them , for detaining their ministers tithes , as the forecited authors resolve . whereas if these saint-seeming officers and souldiers , so much pretending the peoples ease and weal , would cast off the veil of dissimulati●n , and really ease the people in good earnest out of conscience and justice , they should do it , as i told them , by disbanding all unnecessary garrisons ( mere useless toyes to secure the country either from an invading or pillaging enemy by sea or land , as i have made many garrison-souldiers acknowledge by unanswerable demonstrations ) disband their long-continued army and forces , kept up on the people 's drained purses to their undoing ( for what ends the very blindest men now see ) put the peoples necessary defence when there is occasion into their own hands and elected militia , and abolish all these heavy incessant monthly contributions , taxes , excises so long continued on them , to maintain the army and inrich the officers ; being the peoples sorest grievance ( not ministers tithes , which few count a burden , and then upon mere mistakes ) which late created monsters , ( unknown to our fore-fathers , who knew none but tenths , fifteenths , and subsidies duly granted , one or two in several years ) will in short time eat out not only our ministers and peoples tithes , but the remaining nine parts too , and leave them most miserable beggers in conclusion , without any food or provision for their souls or bodies : and no other magistracy , ministry , government , laws , liberties , privileges , but what the army-officers and souldiers , ( their late pretended humble servants , but now their supream lords and masters ) shall out of their mere grace and favour allow them , as their conquered vassals , as many of them are not ashamed even publickly in my hearing , as well as others , for to stile our own enslaved nation , as well as scots and irish . and then they shall all lament their folly when too late , in concurring with these swordmen to abolish their ministers tithes , in the old poets elegie , in a like ease as ours , impius haec tam culta novalia miles habebit ? barbarus has segetes ? en quò discordia cives perdurit miseros ! en queis consevimus agros ! a suidas records of leo the emperour , that when on a time he commanded eulogius a learned philosopher should have a liberal princely reward bestowed on him ▪ a great officer and courtier standing by said , that mony would be better bestowed for the maintenance of souldiers . to which the emperor replyed , nay , i would rather it might be brought to pass in my time , that the riches now bestowed upon souldiers , might be given to maintain philosophers . and i suppose all rational wise men now will be of the same mind concerning ministers , and rather they should enjoy their tithes and glebes , than souldiers and buff-preachers . all which out of true affection to our ministry and my native country , without any private design to scandalize the souldiers , i submit to all prudent mens consideration , who by this will be able to judge of the truth of this proposition , without further proof . in the b officers printed proposals , august . . to those they then stiled , the supream power of the nation ; i found the first of all to be , the abolishing of all tithes , as an unequal , troublesom and contentious way of maintenance , respect being had therein to others rights , but not to the ministers : who have the only true , proper , legal right unto them ; and this to propagate the preaching of the gospel . i profess when i read it in the diurnal , i told some souldiers who brought it me to read in pendennys , . i could not possibly conceive , that the putting down of ministers tithes , should be a means to propagate the preaching of the gospel , but rather to suppress it , the very scripture resolving the contrary , neh. . , , . and chron. . , &c. and the heathen poet concluding , quis enim virtutem amplectitur ipsam , praemia si tollas ? ly . that i wondred men professing conscience , justice and religion , should have more regard to impropriators and others rights to tithes , who had no original right at all unto them , but only by popes bulls and dispensations , and did no service for them , without any special regard to ministers rights , who had only a due and true divine and human right to them , and received them as due wages for their ministry : i doubted , the only cause was , because they or some of their friends were owners of lessees of some impropriations , which they were loath to part with for the peoples ease , or give in to the church , without a considerable recompence . ly . that the suggestion of the unequal , troublesom and contentious way of tithes , was a very strange and daring objection against the very wisedom and justice of god , who instituted and prescribed them to his own chosen people : against the wisdom , justice , prudence of our own , and all other christian kings , states , parliaments , churches , that have at first pitched upon , and so long continued , established by successive laws and edicts this way of maintenance as most equal ; rich and poor paying a tenth alike according to the greatness or smallness of their estates , and the poor farmer and tenant paying them out of his landlords estate , as allowed in his rent or fine , not out of his own private purse alone , being more equal than any taxes or excises for the armies pay . as least troublesom to the ministers at least , who were only at the cost and trouble to carry in their tithes at harvest , when cut and severed from the crop to their hands , to prevent the trouble of plowing , sowing , weeding , mowing , reaping , gathering , which might divert them from their studies and ministry : and as little troublesom , or not over-troublesom at least , it is to the husbandman , who sows , cuts and makes it up together with his own , and then only severs it out , and is not now bound to carry it into his ministers barn , much less to thresh , cleanse and sever his corn , wine or oyl , and other tithes , and carry it to hierusalem● , and the treasuries of the priests and levites at his own cost ; as the a israelites were obliged by god to do : which these officers ( had they lived amongst them , and payed a second tenth , as well as a first , and first-fruits besides ) would have petitioned god himself to abolish , as a troublesome way of maintenance , which they could not brook , though the godly israelites and jews repined not against it , but chearfully brought up their tithes to the priests treasuries as they were enjoyned . and as no waies contentious or litigious in it self , were people as just and conscionable to pay their tithes , there being many parishes in england , ( and that wherein i live one ) wherein i never heard of any sute or quarrel betwixt the ministers and parishioners for tithes , there being farre more sutes and contentions for just rents , annuities and debts throughout the nation than for tithes ( at least ten for one in proportion ) before these late contentious lawless times , when many unconscionable , unrighteous wretches ( pretending religion , to cover their fraud , covetousness and oppression ) will pretend conscience for not paying their very rents , and debts , as well as tithes : and such who have so little grace or fear of god as to contend with their ministers for their just tithes , will be altogether litigious towards them , for any other annuity , or setled way of maintenance that can be devised in lieu of tithes , seeing nothing will content such perverse and contentious wretches , but a liberty to pay their ministers only what they please , and that in conclusion shall be just nothing , as their subsequent petitions and present practices now manifest to god , angels and men . and i doubt the change of this antient , known , long approved certain maintenance by tithes , to any other certain or uncertain way , will create more sutes and troubles among people , than ever our tithes did since their first institution . this was my subitan opinion of their proposition , when i first read it ; and shall serve for a publick answer to it now , if any insist upon it to prove tithes inconvenient and burdensom to the people , and therefore sit to be totally abolished . the main objection , i ever yet a read or heard against tithes , is this , that tithes are a great discouragement and hindrance to husbandmens industry and improvements ; since ministers must have not only the tenths of their lands , as they found them , but likewise of their crop , labour , industry and improvements , which is now ( writes canne and others more largely ) one of the sorest burthens and greatest oppressions and tyranny that lies upon them , and discourages many from improving the lands to the publick prejudice . i answer , . that this objection no waies concerns soldiers , weavers , tailors , tradesmen , townsmen and other mechanicks , who are the most and greatest sticklers and petitioners against tithes ; but only husbandmen and countrey gentlemen and farmers living upon tillage , very few of which ( not one of a thousand ) ever yet petitioned against tithes , as such a grievous oppression ( at leastwise as a farmer ) for the burdensomness of tithes , but only as an anabaptist , or other sectary , out of hatred and opposition to our ministers callings or persons . and till the generality or major part of the gentry , yeomanry and country farmers in each county petition and declare against their predial tithes as such an intollerable grievance , no officers , soldiers , citizens , anabaptistical mechanicks , and busie-bodies in other mens callings and grievances which concern them not , are no waies to be heard , countenanced or credited in this particular , by any powers whatsoever in point of justice or prudence . ly . the payment of tithes , never yet discouraged any person , either in the land of canaan , england , or other countreys , ( at least not any considerable number of men , or any that had either true wisdome , grace , honesty , or love to god and the ministrey ) from any sort of tillage or improvement whatsoever out of which tithes are paid , the gain by the good husbandry and improvement being abundantly recompenced in the nine parts , over and above the tithes . and therefore till the objectors can make good their allegation , by presidents of considerable number of wise , godly men and others , discouraged from tillage and improvements meerly by the payment of predial tithes out of them , in all former ages , or of late years , to the real prejudice of the publick , ( which they can never do ) this grand objection against tithes must be decried , both as fabulous and ridiculous , yea as scandalous : the late petition of the cornish gentlemen , farmers and yeomen ( where such improvements are most made to their great charge ) for the continuance of tithes , being a sufficient evidence to prove it such . ly . it is observable , that the petitioners against tithes upon this ground , are as eager a writers and petitioners against all antient customs , tonnage , poundage , and usual moderate impositions upon merchandize imported or exported , for the necessary defence of the sea and trading ( amounting to as much upon every pound of merchandize , as tithes do upon husbandmens tillage and improvements , the charges of the fraight , transportation and customs in forein parts considered , and to far more and that as a very great discouragement to merchandize and trading . which as all wise men know to be a mere fabulous untruth , contrary to the experience of all states , kingdoms , republicks in the world , and of holland it self , subsisting by merchandize , where they pay as high customs or higher , than b our antient legal merchants duties to the state amount to , which never made any merchants to give over trading ; ( so if , when , and where rightly imposed , managed , they are the greatest encouragements of trade and merchandize , by guarding the seas , and securing traders against enemies and pirates , the only encouragement to merchant-adventurers ; who must and will all give over trading , when they cannot safely put to sea without apparent losse of all they trade for , by enemies or pirates . and therefore this clamourous objection against tithes should have no more weight with wisemen to suppress them ; than their idle clamour against all old legal customs , rates and duties for the necessary defence of the sea and trade , to abrogate them altogether , to the ruine both of our traffique , navy , and merchants too that pay them . ly . this objection is directly made against the providence , wisdom , and policy of god himself , who prescribed tithes amongst his own people out of all their tillage and improvements ; and knew it would be no impediment to them , his b blessing promised to their payment of tithes , being a greater improvement to them in their crops , than all their extraordinary cost and pains amounted to : wherefore it can be no impediment or discouragement to any real saints good husbandry or improvement now ; who deserves to reap no benefit by his labour or improvements , if god himself shall have no share or portion out of them for the maintenance of his publick worship and ministers . ly . if there were any truth or strength in this objection , yet it extends not unto all tithes , but only to such as are paid out of extraordinary chargeable improvements ; as to make mere barren heath , ling and sands , out of which no former profits naturally grew , manurable for corn or pasture , tillage and meadows , woods , out of which most predial tithes arise ; so there is a sufficient remedy against this pretended mischief already provided in the best and strictest statute made by the best of our protestant kings , for the true payment of tithes , at the beginning our reformation , when popery was banished in the parliament of e. . c. . which provides , that all such barren heath , or waste grounds , which before that time have lyen barren , and paid no tithes by reason of the said barronness , and now be , or hereafter shall be improved or converted into arable ground or meadow , shall from henceforth after the term and end of seven years , next after such improvement fully ended and determined , pay tithe of the corn and hay growing on the same , and be discharged in the interim , as the words import , and our judges have expounded it . all which considered , this objection must be henceforth exploded and levelled to the ground . now because i find a clear design and endeavour in sundry anabaptists , officers , souldiers , if they cannot prevail to put down tithes upon other pretexts , yet to rob the ministers of them at present , if not in perpetuity , upon this pretence , to sequester and convert them to the use of the army , for the pretended ease of the people in their future taxes . i shal for the cloze of this proposition , and prevention of this detestable impious sacrilegious plot against our ministers and religion too , propound and answer all such specious arguments , pretences , as may be produced by them to delude the people , veil over the execrable impiety , and take off the odium of this prodigious villany . first , they may and will suggest , that they have some ancient punctual presidents to warrant , countenance , justifie this their project . as namely , the practical example of charles martel king of france , who ( about the year of our lord , . as the marginal a authors report ) having perpetual wars , and seldom or never peace in his kingdom , ideo res ecclesiarum suis militibus in stipendium contulit maxima ex parte ; did thereupon bestow the lands , revenues , rents , and tithes too ( as the act of restitution with others prove ) of parish-churches , monasteries , bishops , deans and chapters upon his souldiers for their pay and arrears ; for the greatest part : and surely upon a very godly and just reason ( as john canne , and some army-officers will swear ) thus expressed in his decree recorded in b goldastus and mr. c selden : ut subveniatur necessitatibus publicis , et salariis militum , pro dei ecclesiae & bono statu reipublicae , & uniuscujusque propria pace pugnantium : that he might relieve the publick necessities , and pay and reward the souldiers fighting for the church of god , and the good of the state of the common-wealth , and the proper peace of every one : as our officers and souldiers now say they do . and is it not then most just they should have all the lands , glebes , and tithes of the church , king , common-wealth , and of every particular person too , who have fought all this while for them and their defence ? to this they may chance to adde , the president of the a templers and hospitalers , who being no part of the clergy , but religious souldiers , imployed only to fight in the defence of the church , were by special bulls and grants of several popes exempted from paying any tithes at all to any ministers out of the lands belonging to their several orders , because they fought for the church against her enemies , as turks , saracens , and other infidels . therefore there is great reason , equity all our officers and souldiers who have lately fought , or are now or hereafter fighting for the church against her enemies and malignants , should be totally and finally discharged from paying any tithes at all out of their old or new purchased lands , leases , cattel , estates , spoyls , pay or other increase . besides , most of our army-officers , and very many of the souldiers , are extraordinarily gifted , inspired from heaven , and constant speakers or preachers b transcending all black-coated ministers , yea the undoubted new ministers and priests of jesus christ , as many deem them ; so as they may be truly stiled c a chosen generation , a roy●● priesthood , yea army of priests , being d made kings and priests by christ himself to god the father : as john canne hath published in his voyce , p. , , , . therefore they may not only enter into our ministers churches , pulpits , and dispossess them of them ( as he there asserts and presseth them to put in execution ; ) but be capable in right , equity , justice , to receive all their tithes to their own use : nay one step more , john canne in his voyce , p. . thus peremptorily concludes , i will affirm , and abide by it ; since it hath pleased the lord to draw out the hearts of some souldiers and others , ( who were never brought up at universities to learning ) publickly to preach , ( which is not above , or . years ) the people of this common-wealth have had more true light and glorious discoveries of christ and his kingdom , than all the nations ministers ever before made known to them , since first they took their calling from the sea of rome , till this day . on the contrary , the greatest heresies and blasphemies which have been in the world have been broached by ministers ( and scholars ) whereas lay-men at the same time have been sound in the faith , and zealously earnest against such abominable doctrines . therefore there is just ground that both our vniversities , and all colleges for advancement of learning , should be suppressed as the very poyson , bane , subversion of religion , church and common-wealths , ( as some souldiers and the anabaptists generally deem them ) and their lands ( as well as bishops , deans , chapters , and ministers glebes and tithes ) sold or conferred on the officers and souldiers , of the army for their better encouragement , reward and supportation , to propagate defend religion and the common wealth : a design now eagerly prosecuted by some . to which let them receive this answer before hand , since i intend not any future treatise of this nature , . that i never read of any pious generals , armies , officers , or souldiers in scripture ( the a rule of faith and manners ) that spoyled the church or ministers of their lands and tithes to maintain their wars , or enrich , reward themselves ; but we find it expresly recorded of b abraham , the father of all the faithfull , that he paid tithes even of the spoyls of the first wars , to the first p●●●st we find in scripture , unto christ himself , both in the old and new testament , for other christian souldiers imitation . the like we read of c david , and all his officers , captains of the army , with sundry others fore-cited ; whose presidents are more obliging and commendable than charles martels . ly . that it was the custom , use and pious practice of many pagan warlike nations , as the romans , graecians , carthaginians , tyrians , saxons to do the like , who consecrated the tenths of all their spoyls to their idol-gods and priests , as we may read at large in mr. seldens history of tithes and review , c. . and in mr. richard mountague his diatribe thereon , ch . . therefore they are worse than pagans who neglect not only to pay their ministers the tenth of their spoyls , but will even spoyl them of their glebes and tithes besides . ly . it is very observable ( and let our souldiers and officers consider it in good earnest ) that god himself specially consecrated and devoted the future spoyls , a sacrifice for and to himself , and all the spoyls , city of jericho ( the very first city taken by the israelites in the land of canaan ) as a sacred first-fruits and kind of tenth for the use of his sanctuary and priests , in these memorable words , josh . . , , . and the city shall be devoted , even it and all that is therein ( except rahab and her family and house ) lord. whereupon when the city was taken , they burnt it and all that was in it ( as a sacrifice to the lord ) but the silver and gold and the vessels of brass and of iron , they put into the treasury of the house of the lord , v. . but acban ( a covetous plundring souldier ) seeing among the rich spoyls of the city a goodly babylonish garment , and two hundred shekels of silver , and a wedge of gold , coveted , took and hid them in the midst of his tent ; which so much kindled the anger of god against the children of israel for this his trespass in these devoted things ; that they were presently smitten before their enemies of ai , and fled before them . whereupon joshua their general and chief governour humbling himself before god , and requiring the cause of this ill success ; god returned him this answer , israel hath sinned , and they also have transgressed my covenant which i commanded them ; for they have taken of the devoted thing , and have also stollen and dissembled also , and they have also put it among their own stuff . therefore the children of israel could not stand before their enemies , but turned their backs before enemies , because they were accursed , neither will i go with you any more . o israel thou canst not stand before thine enemies , untill thou hast taken away the accursed devoted thing from among you . whereupon this sacrilegious robbery of achan being discovered by lot and his own confession ; and hid stoln plunder devoted to god taken forth of his tent , and powred out before the lord in the presence of joshua , and all the children of israel : joshua passed this judgement against him for his sacrilege , why hast thou troubled israel ? the lord shall trouble thee this day : and all israel stoned him with stones , and they burned them with fire ( as a devoted sacrifice to god ) after they had stoned him with stones . and they raised over him a great heap of stones unto this day . so the lord turned from the fiercenesse of his anger . wherefore the place is called the valley of achor ( that is trouble ) to this day . and when hiel , many hundred years after in idolatrous ahabs daies , would needs seize upon the devoted spoyl of jericho , and build it again for his own habitation ; he laid the foundation thereof in his first-born abiram , and set up the gates thereof in his youngest son segub , ( that is , god destroyed , and cut off all his posterity before the gates were set up , and the building finished ) according to the word of the lord , which he spake by joshua the son of nun ; as we read at large , josh . . throughout , kings . . and josh . . . i read of a ataxerxes , that ( in imitation of cambyses before him ) he caused some judges ( betraying their trusts , like b tresylian of old , and too many of late ) to be excoriated alive , and their skins to be hanged up round about the tribunals , that the other judges sitting upon them might have an example hanging before their eyes , what punishment the pravity of iudges did demerit . i desire all souldiers , officers , and sacrilegious anabaptists , would hang up these skins and examples of achan and hiel before their eyes , recorded in sacred writ : and then make this use and application to themselves of them . if achan for stealing away only a babylonish garment and a few shekles of silver and gold of the very spoyls of iericho devoted to the service or treasury of the house of the lord , brought so much wrath , misery upon the whole nation , and camps of israel , and such a fatal death and exemplary punishment upon himself ; and hiel only for building upon the ruines of the soyl of this devoted city drew down sudden death and destruction upon all his sons and posterity ; o what strange exemplary wrath , vengeance , and judgements shall we then draw upon the whole nation , army , our souls , bodies and posterities to their utter extirpation , if instead of rendring unto god and his ministers the tenth of our warlike spoyls belonging of right unto them ; we shall sacrilegiously rob them not only of these tenthes , and all other issuing out of our lands and estates , but even of all their other glebes , rectories , tithes , revenues ; demolish the very churches , houses , dedicated to gods worship , or turn them into houses for us and our posterities to inhabit : and obstinately , yea atheistically refuse to take warning by their , and other sacrilegious persons tragical examples ? ly . let those who will imitate charles martels president , remember . his punishment : a historians record , that for this his sacrilege , he was smitten with a long and terrible convulsion of all his members whereof he died in great anguish : that eucherius bishop . of orleans in a vision saw him damned for it ; and that upon search made in his tomb ( by an angels admonition ) it was also confirmed for truth , no relique of his corps being found therein , but only a dreadfull serpent . * apud frances carolus martellus insignis vir fortitudinis , exactis vitae sue diebus in ecclesia beati dionysii legitur esse sepultus , sed quia patrimonia cum decimis omnium fere ecclesiarum galliae , pro stipendio commilitonum suorum mutilaverat , miserabiliter à malignis spiritibus de sepulchro corporaliter avulsus , usque in hodiernum diem nusquam comparuit ; as matthew westminster stories of him . ly . the censure passed against him for this sacrilegious robbery , by the marginal authors and others : especially by agobardus bishop of lions , an. . in his book * de dispensatione , & rei ecclesiasticae contra sacrilegos , worthy the reading , who thus complains , p. . nunc non solum possessiones ecclesiasticae , sed ipsae etiam ecclesiae cum possessionibus venundantur , &c. which he condemns as detestable sacrilege execrable to god and men : by petrus damianus , anno . l. . epist . . where he gives this censure of his practice , and others : inter omnia vero hic mala , illud excedit , et diabolicam fere modum videtur aequare nequittam . quia pradiis in militem profligatis , &c. moreover among all wicked acts , this exceedeth , and seems almost to equal the very wickednesse of the devil , that all the farms and possessions of the church being prodigally spent upon souldiers , insuper etiam et decimae & plebes adduntur in beneficium secularibus : moreover tithes and people are likewise added and conferred on ( these ) secular men for a reward : which in his lib. . epist . . & lib. . epist . . he stiles a great sin , sacrilege , and prophanation of holy things ; concluding , what is it to turn tithes to the use of souldiers and secular men , nisi mortiferum iis virus , quo pereant , exhibere ? but to give them deadly poyson whereby they may perith ? petrus blesensis arch-deacon of bath : epist . . & joannis de belith de divinorum officiorum explicatione , c. . write much to the same effect ; making it a greater robbery and sacrilege to take away ministers tithes , though it be by the popes own bulls , than violently to take away and plunder mens horses as they are riding or carting in the high way , and convert them to their proper use ; as souldiers use to do . ly . let them remember , that charles martels immediate successors so much detested both his practice and sacrilege , that by a publick edicts they decreed in these terms , that the tithes and ecclesiastical lands and goods seised upon by prophane persons , ( so they stiled the souldiers possessing them ) should be all restored : and so they were accordingly , and those harpyes robbed of their sacrilegious prey . let the late purchasers of such tithes and lands remember it , and think of a possible , if not probable act of resumption , in case they make no voluntary restitution . ly . let them consider the large revenues the popish clergy at this day enjoy in france , amounting to above . millions of annual rents , at a moderate value , besides mony and oblations ; as bodine , thuanus , hist . l. . ioannes de laety descriptio galliae , c. , . record . to which i might adde the extraordinary great revenues of the popish clergy in spain , recorded by lucius marineus , siculus , ioannes de laet , in his hispaniae descriptis , cap. . & jo. boterus in his hist . universalis , and of the popish clergy in the kingdom of naples in italy , registred by thomas segethus , de principibus italiae , p. . which they still enjoy , notwithstanding their manifold wars , without sale or diminution for their soldiers pay . and will it not be an intollerable impiety , sacrilege , dishonor for protestant souldiers , and our new republick , not to allow our ministers so much as their inconsiderable remaining rectories , glebes , tithes , to support our religion , and instruct and save the peoples souls ? ly . the reason rendred by martel and others , that the officers and souldiers deserve the lands and tithes of the church and ministers , because they fight for the defence of the church , is very strange , and just the self-seeking plea and practice of sundry of our officers and souldiers at this day , scarce to be parallel'd in any age , . they were raised for the a defence and preservation of the late kings person , posterity , and just rights of his crown : ergo in discharge of this trust they have most justly sentenced , beheaded the king ; outed , dis-inherited his posterity ; and seized upon all the crown-lands and revenues in his three kingdoms for their own use , pay , support , reward and inheritance . ly . they were raised and fought for the preservatirn and defence of the kingdom , parliament , and members privileges , and laws and liberties of england : therefore they have justly by armed violence invaded , subverted them all , disposed of all the common wealth and revenue of the nation to themselves and their instruments to support themselves and their usurped arbitrary power and government over us ; and may null and pull down not only our old , but their own new-created parliaments , and state-councils ( as they stile them ) and change both government & governors at their pleasure . ly . they fought for the particular defence , peace , safety of every mans person and estate in our three kingdoms : therefore they may seize upon and dispose of all their persons , lands , estates at their pleasures , and impose what taxes , excises , imposts they list , and exercise a legislative absolute arbitrary and tyrannical power over them , without a lawfull parliament , to eat them quite out of all , lastly , they fought for our church , ministers , religion : ergo they may subvert them all , and seise upon all church-lands , revenues , rectories , glebes , tithes , yea churches and church-yards too , for to reward , support and pay the army ; and possess themselves of what ever our ancestors setled on the church and ministers to instruct and save the peoples souls , as a just salary for killing their christian brethrens bodies , and destroying the peoples souls and bodies too . certainly the worst enemies they fought against , would not , could not have done worse than this , nor yet so bad . this certainly is a devastation , destruction , not a defence or preservation , of what they were raysed and payed to protect , an invasion and depredation , not a patronage and protection : a remedy more destructive than the worst disease , war , enemy , who could but have stript us of no more had they conquered us , than these our new armed defenders of the faith , church , king , parliament , laws and liberties have done or intend to do , as many fear . it was john baptists evangelical precept to all souldiers whatsoever , a do violence to none , ( in person , lands , or estate ; much lesse to ministers privileged by the law of war from violence : ) and to be content with their wages : without seising , sequestring , invading the lands , estates , glebes , tithes , persons of ministers , king and members or any others they fought for , who never raised , nor waged souldiers to deprive them of their patrimonies , estates , callings , rights , laws , liberties , privileges of parliament , government , governours , but only to secure them in the full possession of them all . this new martial law and practice then , is both irrational and unevangelical , fitter for professed theeves , turks , and pyrates , than christian souldiers ; and far different from the foresaid christian souldiers practice in former ages ; who as they would by no means be engaged by their a pagan emperors or generals commands to fight against any of their christian brethren , choosing rather to obey god their supream emperour than men : so the famous b thebean legion of christian souldiers and their officers under julian the apostate , when he commanded them to bring forth their arms against the christians , returned him this most heroick answer , worthy to be written in golden letters , briefly , fully and elegantly expressing the duty of every true christian souldier in all ages and cases ; offerimus nostras in quemlibet hostem manus , quas sanguine innocentium cruentare nefas ducimus . dexterae ipsae pugnare adversus impios & inimicos sciunt , laniare , pios et cives nesciunt . meminerimus nos ( and o that our army-officers and souldiers would remember it likewise ) pro civibus potius quam adversus cives arma sumpsisse . pugnabimus semper pro iustitia , pro pietate pro innocentium salute ( not for kings , bishops , deans , chapters , ministers lands , revenues , tithes , estates , the things now fought for : ) haec fuerunt hactenus pretia periculorum . pugnavimus pro fide , quam quo pacto conservemus tibi ( imperatori ) si hanc deo nostro non exhibemus ? o that this resolution were now engraven in every army-officers and souldiers heart ! our ministers then needed not to fear the losse of their tithes , rectories , churches , nor our universities , colleges , corporations , or any other the disinheris on of their lands , laws , liberties , powers , by military rapines , violences , and usurpations . ly . the exemptions of the hospitalers and templers lands from paying of tithes , was a a meer papal innovation and devise , which canne , who pleads so much against tithes upon this mistake that they are popish , and all his confederates should be ashamed to own and imitate : the israelites gods own people during their possession of canaan , had many forein and civil wars in most of their judges , b kings and high priests successive reigns , and roman governours over them : yet we never read , that any of their generals , officers or souldiers , fighting for their churches , priests and religions defence against forein or domestique idolatrous enemies , pretended the least exemption of their lands or estates from paying all their antient forementioned accustomed tithes to the levites , priests and poor : nor any christian souldiers else but the popish templers and hospitalers for the lands conferred on their orders , not for their private inhabitances . and if souldiers be obliged to pay tithes of all their spoyls and gains of war ( as i have abundantly proved ) much more then of their real and personal estates , as well as any others not in armes : especially where they are well paid and war not on their own expences , but other mens purses : amongst the jewes we never read of any taxes , tributes or contributions imposed on the cities , houses , lands or tithes of the people and levites for the maintenance of wars , or pay of souldiers , from which even artaxerxes ( a heathen conqueror ) exempted them by an express decree , ezra . . yet they received tithes of all their kings , generals , captains , souldiers , as well as peoples lands and increase both in times of war and peace . but our army-officers and souldiers now receive above the tithes of all our ministers tithes , glebes in monthly taxes and contributions by arbitrary , illegal impositions without their or consents in parliament , contrary to their c antient privileges , all former presidents and our laws . therefore there is all equity and justice they should receive the tenths both of their lands , goods and gains of war too , and that no officers or souldiers should be exempted from tithes as the templers and hospitalers were , who had no other pay or salaries but their lands , and received no constant contributions from the clergy . d xenophon , that famous learned greek heathen commander , having made the most noble retreat we ever read of in story , out of the upper part of asia with ten thousand men through mountains , frost and snow , in memorie of his thankfullness to the gods for this safe return , separated the tenth of all the spoyls that his army had gained in the wars , and by general consent , commited them to the captains to be dedicated to apollo and diana ; that for apollo , was layd up at delphos in the athenean treasury ; but with that other tenth dianas share , xenophon himself purchased a peece of land , and built thereon a temple and an altar to diana , and appointed the tenth of the yearly increase forever unto it . this pagan commander and his captains and souldiers were so far from exempting their lands from tithes to their idol - deities , that they tithed the very spoyls of their wars to them , and built and endowed a temple to diana with lands , and tithes out of their own lands and estates for ever . which shall for ever silence and shame those christian army-officers , souldiers , templers and hospitalers , who would exempt not only their spoyls , but their lands and estates from all tithes to god and his ministers because they are souldiers , and pretend to fight for their defence . ly . this reason , that they should enjoy not only their own but our ministers tithes , because they are an army of preachers and priests , and more officers , souldiers in the present army preachers or speakers ( as they phrase them ) than ever in any army in the world before , hath frequently minded me of that saying of e pope gregory the first ( which famous f bishop jewel much insisted on ) concerning antichrist . the king of pride ( antichrist ) is at hand , and which is an horrible thing to be spoken , sacerdotum est praeparatus exercitus , an army of priests is prepared to gard and usher him in . certainly i never heard nor read of such an army of priests ( as our army now is , before ; wherein there are not only some hundreds of disguised popish antichristian priests and jesuites ( as most wisemen conceive ) under the disguise of souldiers ) preaching , venting , many notorious errors , blasphemies and antichristian tenents , to infect the army and nation too , but many preaching colonels , captains , officers , souldiers of all sorts , not a preaching general ( as some say ) too ; and among others , one of these army-preachers not long since published a book with this title : antichrist with us ; by john spittle-house , a member of the army : printed at london , . which intimated to me at first sight , that antichrist was in the army : and truly if they proceed ( as canne would have them ) to usurp our ministers office , rectories , glebes , tithes , churches to themselves , and suppresse our ministers , churches , parishes , as antichristian ; i shall then justly suspect , and others will confidently conclude , they are the very army of priests prophecied of by pope gregory , who shall forcibly usher and bring in antichrist the king of pride ( who a exalteth himself above all that is called god or worshipped , that is , above kings , lords , parliaments , and all civil and ecclesiastical powers whatsoever , as b expositors resolve ) into our church , and re-establish him in his throne . ly . i never read in the old testament or new , that christ authorized , commissioned or sent out any captains , or souldiers to preach the gospel , or made choyce of such to be his apostles and ministers of the gospel : surely had this been a part of their duty as christian officers and souldiers , john baptist christs forerunner would have instructed those c souldiers who came purposely to and demanded of him : what shall we do ? in another manner than he did ; and said unto them ; go and preach the gospel , and instruct the ignorant souldiers and people publickly where ever you quarter : in the first place ; and then , do violence to no man , and accuse no man falsly , and be content with your wages : the only precepts he gave them ; which our army-officers and souldiers since they turned preachers have much forgotten and neglected : i read of . devout centurions in the new testament eminent for their faith , piety , charity , and of one devout souldier ; yet neither of them a publick preacher : the first of these colonels or centurions d built a synagogue for the jews and others to meet and preach in who were priests and ministers ; but i read not he ever preached in it publickly himself . the latter ( centurion ) is thus characterized , acts . , . that he was a devout man , and one that feared god with all his house , which gave much alms to the people , and prayed to god continually : but doubtlesse he never preached , for then it would have been there recorded , that he preached continually as well as prayed : yea , he was so far from this , that when the angel of god came to him in a vision ; he sayd , thy pr●yers and thine alms ( not thy preaching , therefore he preached not at all , or if he did god accepted it not , but disliked it as against his word and will ) are come into remembrance before god : and now send men to joppa and call for simon peter , he shall tell thee what thou oughtest to do . whereupon he presently sent two of his servants , and a devout souldier continually waiting on him ( but not on preaching ) for the apostle peter to preach to him , his friends and family ; who repairing to him , cornelius goeth forth to meet him , falls down at his feet , worshippeth him , talks with him , brings him into his house , where many were come together ; relates his vision to peter ( mentioning again his prayers and alms , but not his preaching ) concluding thus : now therefore are we all here present before god to hear ( not preach ) all things that are commanded thee of god ; whereas some centurions , colonels , captains and souldiers of this age , if peter himself should come to their assemblies or quarters , would be readier to teach and preach to him , than to hear him , and apter to be his teachers than auditors , as these only were : after which peter preached to him and his company ; i find another sort of captains and souldiers in the new testament b who went out and apprehended our saviour jesus christ , mocked him , derided , crowned his head with thorns , stripped him of his rayment , put him on a purple robe , bowed their knees before him in scorn , saying , hayl king of the iews , blind folded , and then strook him with their hands , and bade him prophecy who smote him : guarded him to his tryal , carried and nayled him to his crosse , crucified him between two theeves , pierced his side with a spear , gave him gall and vinegar to drink , parted his garments amongst them , cast lots upon his vesture , and would have broke his legs but that he was dead . after which they watched and guarded his sepulchre ; took large mony of the priests to smother the truth of christs resurrection by reporting a lye , that his disciples came and stole him away whiles they were asleep ; who took the mony and did as they were taught ; and are branded for ever with this epiphomena , these things therefore the souldiers did . after which some of this rank of officers and souldiers by a herods command killed james the brother of john with the sword , apprehended , imprisoned , chained , and most strictly garded the apostle peter , in order to put him to death the next day ; but that the angel of god miraculously delivered him . others of them b apprehended , bound , and would have scourged paul ; garded and carried him from prison to prison ; and when he was sent prisoner to rome ; when the ship was wracked , and their lives saved only for pauls sake , they gave the centurion counsel to kill paul , and all the other prisoners , lest they should escape from them by that wrack . these souldiers no doubt were truly antichristian ; and if the c tree may be judged and known by its fruits , and souldiers by their actions and intentions , i doubt there are far more of this later sort than of the first in this age , and if john cannes voyce from the temple be imbraced for gospel in every point by the whole army , no doubt they will then be all of this later rank , not the ministers and d soldiers of jesus christ , but of antichrist alone ; and the e crucifiers of christ again in his faithfull ministers and members ; which i desire them all sadly to consider . ly . admit them to be made kings and priests to god the father by christ , in a spiritual sence , as a all the elect saints of god are ; will it thereupon follow , that they may all lawfully preach in publick , administer sacraments , and exercise the proper function of priests and ministers ? if so , then by the self-same reason , they may all lawfully exercise the office and power of kings , as well as of priests ( as some of them do in the highest degree beyond all presidents of any our kings before them ) and so under pretext of suppressing our monarchy , and one sole king as dangerous and pernicious ; we shall have now no less than an whole army of kings to rule and reign over us , and to engross not only all the old kings lands and revenues , but the greatest part of the peoples far surmounting of a million or two each year in contributions and excise to support their new royal state and dignity ; as well as an army of priests , who have and would swallow up our whole churches revenues , glebes , tithes , patrimony , and our ministry too , for to support their new evangelical priesthood ; that so they may resemble both christ and melchisedec in their kingly and priestly offices united in one person ; though not in the title of their kingdom as the apostle interprets it , hebr. . . being by interpretation king of righteousnesse , and after that also , king of salem , which is king of peace ; which souldiers who make a gainfull trade of war and rapine delight not in . ly . i do affirm , and will abide by it , that since the time some disguised popish priests , jesuits , sectaries , hereticks , anabaptists and other seducers ( rather than the lord ) drew out the heart of some souldiers and other mechanicks ( in truth or disguise ) publickly to preach , the people of this common-wealth , have had more abominable , false , damnable , atheistical , antichristian heresies , errors , blasphemies , new opinions , and old exploded heterodox heresies and tenents of all sorts whatsoever against the very essence , nature , attributes of god himself , the three sacred persons in the trinity , the old and new testament , law , gospel , all the fundamental articles of faith and salvation , the sacraments , ministers , ordinances of god ; and practical publick , private duties of piety and christianity , under the names and specious titles of new lights , and glorious discoveries of christs kingdom , broached by souldiers and lay-preachers , than in all the times since the gospel was first preached in this island , and more than ever any one age , church , nation , or all our ministers put together since the creation till now were guilty of , and these publickly averred both in presse and pulpit , and the authors of them exempted from any corporal or pecuniary punishments , by the civil magistrates , by the avowed a printed positions and proposals of the general council of army-officers and souldiers in sundry papers . for full and infallible proof whereof , i shall remit the reader to mr. edwards gangrenaes , the catalogues of the heresies , blasphemies , errors , collected by the london and devonshire ministers , the stationers beacon fired , and new law , p. , . which stiles heaven , hell , the resurrection of the flesh , a dream of our preachers ; the history of the scripture an idol , &c. and all this by the malice of satan , the underhand practices of jesuites and our popish adversaries to defame , ruine our church , ministers , religion , seduce thee to popery , atheism , and reduce us back to the antichristian tyranny of the sea of rome , as i have largely manifested in the fifth chapter . whereas canne cannot charge our parochial ministers and presbyterians with any such blasphemies , heresies , errors , as those he pleads for are guilty of in the highest degree , nor with those jesuitical , treacherous , perfidious , sacrilegious , unclean , beastly ranting , unrighteous , prophane , atheistical innovations , practices , rapines , usurpations , as they have plunged themselves into over head and ears without any conscience or dread of god or man. ly . what , that more true light and glorious discoveries of christ and his kingdom made known to the people of this common-wealth within these , or . years by the publick preaching of some souldiers and laymen , exceeding all the nations ministers ever made known unto them before , are , is concealed by canne , and unknown to me or others , unless it be the flat atheistical denyal of god , of christ and all his offices , of the holy ghost , scriptures , sacraments , all publick ordinances in the church , of all kings , princes , parliaments , lawfull magistrates , laws , oaths , vows , covenants , protestations , engagements , by many of them in their words , writings , and most of them in a their works , with their jesuitical positions , plots , practices , recited in the fifth chapter . and if these be not true b infernal darknesse , and clear inglorious discoveries of c antichrist and his kingdom in the highest degree , that ever yet appeared amongst the people of this common-wealth , let the fifth chapter , with the positions and practices themselves , compared with the old and new testament , determine . ly . the decrying of our vniversities , colleges , schools of human learning , innes of court , and some mens endeavouring to seise upon their lands and revenues for the armies use , is no doubt a jesuitical papal plot , to extinguish the light of our knowledge both divine and humane , by puting out the eyes of our nation , that so jesuitical popish darkness might over-spread our church and state ; and so the a blind leading the blind in both , they must fall into the pit of destruction in a moment . it is storied of b julian ( that blasphemous apostate , and professed enemie of christ and christian religion ) that he suppressed all the schools of christians , prohibiting by general laws and decrees , that any should profess , practice or study any arts or sciences in any schools , that so they might become and remain ideots , without learning , and so be insufficient and unable to preach the christian faith , oppose or refute any pagan or other errors , blasphemies against the true god and his worship , devising by all means possible ( whereof this was one of the principal ) to make war against jesus christ , and extirpate christianity , without shedding any christian blood ; finding by experience , that the christian faith and christians were greatly increased by the torments and blood of the martyrs : so that bloody apostate from and persecutor of the christian faith c lucius the emperour , as he ruined the churches , temples he commanded to be built for christ , cast out of his house , service and all offices and place of command whatsoever he that was a christian , commanded all those christians to be slain who would not adore his idols , prohibited all assemblies of christians either for worship or consultation ; so he was such an enemy to learning , that he named the same ( as some do now ) a poyson and common pestilence and the overthrow of common-wealths ; and especially the knowledge of the laws : and thought no vice worse became a prince than learning , because he himself was unlearned ; and thereupon prohibited schools and meetings for instruction : whereas on the contrary d constantine the great , and all other godly prudent christian emperors , kings and princes , founded schools of learning and universities in all places , encouraged and advanced learned men of all arts and professions , especially divines , lawyers , and philosophers ; well knowing that learning was the principle means to promote religion , and the glory , honour , wealth and greatness of any nation , more necessary than any arms or souldiers , and the chief means to preserve them from idolatry , superstition , confusion , ruine . we may therfore clearly discern whence the present outcries against our vniversities , inns of court , schools of learning , and all human learning proceed , even from desperate apostates from true religion and gods church , and those who would erect a new babel of confusion amongst us in church , state , and thereby build up the demolished walls of the romish jericho within all our dominions : for proof whereof , i shall transcribe this notable passage of our famous learned bishop jewel in his sermon on joshua . in his works in folio , p. , . which is very pithy , learned and satisfactory , omitting all others . now to stay the restoring of jericho , many good waies may be devised . the . maintenance of schools and learning . that learning and knowledge is able to hinder the building of jericho is so plain that it needeth no speech . in the time of moses law , aaron the great bishop and high priest had written in a tablet before his breast , doctrin and truth ; not only learning , but also truth ; whereby was meant , that neither ought to be without the other for , as learning is dangerous and hurtfull ( in some cases ) without religion : so is religion unable to defend it self , & to convince the gain-sayers without learning . for this cause the heathen when they erected temples in honour of their gods , they did also build libraries , that is , places to keep books , that by such means their priests might grow in knowledge , and be better able to perswade others to their religion . strabo of the sinprincians , that they built a temple in honour of homer , and joyned thereto a library . augustus the emperor built a temple , and also a library in the honour of apollo . trajanus in like manner built a library , and called it vlpia , after his own name . at rome in the capitol , where all the gods had a solemn place for to be worshipped in , there was also placed a library . athens was a famous universitie , and had many colleges and schools of learning , academia , stoa , lycaeum , canopus , prytanneum , tempe , cynosura : in which places were divers sects of philosophers . such were in persia , the wisemen , whom they called magi : in babylon the chaldees , in india brachmanes , in aethiopia gymnosophistae : in france and england druides : and others in other countries . in all times the kings and princes which did set forth religion , were also builders of schools and colleges , and advancers of learning . the people of israel were never in better state , ( as p. phagius a learned man noteth out of their story ) than when they had in every town and village bathe chenesioth , and bathe medraschoth , that is , synogogues wherein they assembled together , and places to preach in . the same phagius , relateth of hierusalem , that there were in it more than four hundred common schools and synagogues wherein the law of god was taught . the patriarch jacob was called a minister of the house of learning , because he applyed himself to the knowledge of the law of god , and to godliness . the prophets of god had their schools to breed up under them such as might after their death draw the people from idolatry , and resist the false prophets . they which were so taught by them were called the sons of the prophets . samuel taught in such sort at rama : elias and elizeus the prophets , taught the law of god besides jericho . st. john the evangelist taught at ephesus , and eusebius reporteth out of philo , that st. mark had at alexandria sundry scholars which gave themselves to reading , and reasoning and expounding of the scriptures . others did the like at antioch , and at other places . out of such schools it pleased god to take many excellent men , and place them in his church , as origen , tertullian , cyprian , lactantius , arnobius , basilius , nazianzenus , chrysostomus , hieronimus , ambrosius , augustinus , &c. who were brought up in all kind of learning , and became shining stars , and brought lights in the house of god , notable defenders of religion , over-throwers of idols , and confounders of hereticks . christian princes herein have witnessed their zeal in setting forth the glory of god. after charles the great had , made his notable conquests ( let our conquerors remember it ) he erected five famous universities , one at paris , another at tolouse , another at papia , another at padua , and another at prague : ( to which our king a alfred founder of out famous universitie of oxford with the founders of all the colleges therein , and of the universities of cambridge , dublin , and those in scotland , to omit those universities in germany , spain , portugall , poland , denmarke , sweden , hungary , and other parts of italy and france , mentioned by heylen and others , might be added : ) b suidas reporteth of leo the emperour , that when leo on a time commanded eulogius a philosopher should have his princely reward ; a noble man of the court , sayd : ( as some do now of our universities and colleges lands and revenues ) that that money would be better imployed for the maintenance of souldiers . nay , ( saith he , and so all wise men now ) i would rather it might be brought to pass in my time , that the wages which are now bestowed upon souldiers might be given to maintain philosophers . c alexander severus , so highly esteemed that notable famous lawyer , vlpian , that when certain of his soldiers ran feircely upon vlpian to slay him , the emperor stept forth , and set himself between the body of vlpian , and the fury of his souldiers , and covered him with his own robes , that the souldiers might know how carefull he was for the good estate of vlpian : ( let our souldiers who hate and study to suppress philosophers , scholars , lawyers , consider these two last stories : ) and also for the contrary ; such as have practised cruelty upon learned men , and have hated knowledge were worthily discommended in the stories of all ages ; he instanceth in the wicked apostates , julian and licinius , forecited examples . the like is reported of caligula , caracalla and domitianus , that either they utterly hated all manner of learning , or had some special malice against the writings of some one notable man , and therefore sought to destroy them . such was the policy of satan , so thought he to get the upper hand , and to restore again his wicked jericho . and were these the practices of heathen princes only ? may not we remember the like attempts wrought in our dayes ? who will call to mind the time that is not far past , shall find that this ignorant iericho had many friends : ( and hath it not now as many and the same ? ) who by all means drew men from knowledge ; they gave liberty rather to do any thing , than to seek understanding ; and yet suffered rather the use and reading of fabulous and unclean writers than of the holy scripture , and books which carried fruitfull instruction . good letters to increase knowledge are not to be neglected . such as presume of gods spirit over-boldly , that without endeavour to use the wholsome means which god hath left unto his church , they shall and doe by special inspiration , understand his will , do tempt god. he adds much more . in brief , learning , knowledge in arts , tongues , histories of all sorts , and in the laws , governments of former ages , are so absolutely necessary for the right understanding and interpretation of the scriptures , and good government of all common-wealths and kingdoms , that without them there neither will nor can be any true religion , sound knowledge of god , his word , or works , nor orderly government , humanity , civility , navigation , or commerce almost in the world ; and men deprived of it will be little different from beasts , as appears by the brutish sottishnesse , barbarousnesse , savagenesse , ignorance of the illiterate indians in america , and of some other african and northern nations , voyd both of religion , government and humanity it self , because destitute of learning , as purchas his pilgrimage , mr. hackluits voyages , peter martyrs indian history , mercator , and others record . hereupon our antient ancestors were so carefull of learning , religion , ministers , scholars , lands , estates , tithes , that they placed them in the very front of all those antient laws , liberties , customs which they claimed , enjoyed , and presented to william the ( pretended ) conqueror upon oath in the th . year of his reign , who ratified them in parliament , without the least alteration or diminution , to his eternal honour , and the great contentment of the whole nation , whose affections else he would have lost , to the endangering of his new acquired royalty , as i have proved in the b d. chapter . which our new pretended conquerors , may do well to consider . and so i proceed to my concluding assertion . chap. v. i am now arived at the fifth and last proposition , that the present opposition and endeavoured abolition of tithes and all other coercive maintenance for ministers , proceed not from any real grounds of piety or conscience , or any considerable real inconveniences or mischiefs arising from them , but merely from base , covetous , carnal hearts , want of christian love and charity to , and professed enmity and hatred against the ministers and ministry of the gospel ; and from a jesuitical and anabaptistical design to subvert and ruine our ministers , church and religion ; the probable , if not necessary consequence of this infernal project , if it should take effect . which would prove the * eternal shame , infamy and ruine of our nation , not its glory and benefit . the first part of the proposition is sufficiently manifested by the premises , wherein i have answered all objections from pretended grounds of piety , conscience , and surmised inconveniences or mischiefs made against tithes , discovering them to be mere impostures , and false surmises , and the principal objections against them are , that they are jewish , popish : and iohn canne in his second voyce from the alehouse ( for surely it came from thence , not from the temple ) to shew his skill in divinity most impudently asserts . that payment of tithes is a sin two waies against the second commandement , . in it self , as being iewish and superstitious , giving honour to the wayes and devises of antichrist . this way of maintenance by tithes being a popish custom , imposed by the popes authority , &c. ly . as paid to an unlawfull and antichristian ministry , &c. surely a lyer ought to have a good memory ; he confesseth , p. . that tithes were paid by abraham , vowed by iacob , and prescribed by god himself in the ceremonial law . therefore neither jewish , nor popish , nor superstitions , nor a sin against the d . commandement : else abraham in paying , iacob in vowing , god in prescribing , the israelites in paying them , should transgresse this commandement , and commit a sin against it , i would demand of this canne , how he can reconcile these his palpable lyes and contradictions unbecomming him who professeth himself a true minister of the gospel . . how tithes can be merely jewish , since paid by gods direction and approbation , by abraham the father of the faithfull , and that to christ himself , in the shape of melchisedec , and prescribed by gods own special precept ? ly . how any thing commanded by god , even when the d . commandement was given , recorded in the same canonical books of scripture with it , practised by gods special command by all his true saints under the law , and generally in all christian churches under the gospel , as i have proved ; can possibly be , a sin against the d. commandement in it self ? and whether it be not direct blasphemy in him thus confidently to aver it , in making gods very commandements to fight one against another , and to command one thing as a duty in some texts , and condemn it as a sin and damnable superstition in another ? ly . how tithes if truly and orignally iewish , can yet be truly and originally antichristian , popish , and the popes device , many thousand years after tithes first institution and customary payment ? till he can satisfactorily reconcile these apparent contradictory assertions , or publickly recant them if he cannot , all the world must accompt him for an antichristian minister and lying impostor , his voyce , the voyce of him that reproacheth and blasphemeth both god and men , psal . . . and confess there is no ground at all in piety or conscience against tithes , or their payment , but grounds both of piety and conscience for them , as i have proved ; especially for our godly ministers and preachers of the gospel ( for whom i only plead ) whose calling being of unquestionable divine institution , notwithstanding all cannes alehouse arguments against them ( not worth a canne ) and to continue in the world to the very end thereof , and the consummation of all things , by christs own resolution , matth. . ephes . . , , , . they may and ought by divine and human laws , to enjoy their glebes and tithes so long continued , maugre all the malice , power of their violent oppugners , and will do so when they and their posterities shall not have so much as a name or being upon earth or in heaven ( unless they repent ) notwithstanding they were justly taken from popish fryers , abbots , priors , lordly prelates , ( of mere popish antichristian institution , not divine , ) when their very orders were suppressed , as mere vsurpers , encroachers of the ministers rights , rewards alone , for their pains in preaching , exercising their ministerial function in their respective parishes , not in abbies , cathedrals , ( no parish-churches for the people to resort unto ) to which by the a popes bulls , they were unjustly appropriated heretofore . to clear this proposition more fully in all its branches , i have observed , that there are five sorts of persons of late , very busie , active both against our ministers tiths and callings too . the first are souldiers : the d . anabaptists , dippers , quakers , with other late blasphemous sectaries and hereticks : the d. prophane , covetous earthworms , and atheistical wretches ; who say in their hearts , and sometimes boldly profess , not only by their lives , but with their tongues in this lawless age , there is no god. the th . prophane , ignorant , cheating prognosticators and astronomers : the th . jesuites , popish priests and romish emissaries , sent from all parts to ruine our ministers and religion . for the first , they are either officers and common souldiers , and those , either such who have gained or purchased lands since the wars , lyable to tithes ; for such who have no lands at all , and so not of present ability , capacity to pay tithes . those who have any purchased lands lyable to tithes , are now so fierce against them , ( for ought i can discern ) not out of any grounds of piety or conscience ; but , either out of an unworthy , covetous , degenerous , sordid disposition , to ease themselves and their heirs from this just antient debt , yea a charge of tithes upon their new cheap purchases , and gain them as an over-plus into their bargains , to improve their purchases to an higher value ; the case of such of them who approve of our ministers , our publick ordinances , and are no speakers , anabaptists , sectaries . or else a like avaritious disposition , mixed with and heightned by a professed enmity , malignity against the very persons , calling of our ministers , whom they usually revile by the names of baals priests , black coats , antichristian locusts , rotten , corrupt clergy-men , seditious , factious varlets ; and all other rayling epithites , which lilly in his late almanacks and scurrilous pamphlets , hath furnished them with , which they much magnifie . this is the case of such sword men , who are above , or against all ordinances , duties publick or private : or antiscripturists , antitrinitarians , anabaptists , seekers , quakers , asserters of the souls mortality , as rising from and dying with the body ; of all their ordinary unordained speakers , preachers , infected with any other erronious , heretical , or blasphemous opinions ; of all disguised jesuites , priests , papists under the profession and name of souldiers . those who have no lands liable to tithes , petition and speak against them ; either meerly to please their superior landed-officers , * for fear of being cashiered by them ; or because they are infected with anabaptism , jesuitism , errors , blasphemy , schism , arianism , atheism , contempt of all publique ordinances , duties , and a bitter emnity against our ministers persons , callings , or intruders into their office ( as well as into most other professions ) without any lawfull call . these , in my observation ( and i appeal to every of their own consciences in the presence of the searcher of all hearts , for the truth of it ) are the only true grounds , motives of any officers or souldiers present stickling opposition against tithes and ministers , arising from within them , as they are private persons . and these unchristian grounds , seconded with the open or under-hand sollicitations of their anabaptistical , heretical , schismatical , jesuitical , astromatical friends and acquaintance out of the army ; backed with a most impious , wretched , sacrilegious policy to please the simple oppressed , deluded country people in discharging them at present from the payment of tithes to their ministers , that so they may augment their taxes to the full value of their abolished tithes , to support themselves and the army the longer in a body , to uphold their supream enchroached powers , preserve , encrease their new purchases , estates , depending wholly upon the new law and title of the longest sword , are in my apprehension the only true causes why the general council of officers of the army , with the souldiers under them , by their directions , as a new created all-swaying military corporation , have so oft appeared publickly against our ministers tithes to abolish them ( and their ministry by necessary consequence with them ) which all other opponents ( being inconsiderable ) were never able to effect , but by their armed power . these are all the real principles of piety , conscience ( if they deserve the title ) i could ever yet find amongst them ; engaging the army-officers and souldiers against tithes , which how inconsistent they are with the real profession , or grounds of christianity , piety , conscience , justice , saintship , let their own consciences and the world resolve ; and what censures , execrations , judgements they may in justice expect from god , for such a sacrilegious rapine , as they intend upon these carnal , impious , atheistical grounds , policies , hypocritically gilded over with the paint of conscience , reformation , religion , propagation of the gospel , &c. which makes the design more detestable both to god and all good men . the second sort of tithe-oppugners are professed anabaptists , dippers , seekers , quakers , and other blasphemous sectaries and heretiques , lately sprung up amongst us , many of which have crept into the army for their greater security , and the better accomplishment of their dangerous destructive designs against our established government , magistrates , laws , but especially against our religion , church , ministers , ministry , their tithes and glebes . scarce one of a thousand of these poor sneaks were of ability to pay any tithes of late ; and those of this prevailing faction , who have crept into sequestrations , offices , imployments of late , and thereby gained any estates , for the most part , have enriched themselves by sequestred tithes , glebes , bishops , deans , chapters lands and revenues , which these hungry harpyes have most greedily preyed upon , not out of any real grounds of piety or conscience ( as they pretend ) which i could yet seldom or never find in any of them ; but out of an unsatiable greedy a holy hunger or thirst ( in the poets sence ) after gold , gain , spoyl , the revenues of our church , and an implacable bitter enmity against our ministers persons , callings ; whether presbyterians ( the chief butt against whom their malice is bent ) or independents of a more moderate strain ; whose ministry is the main fort they level all their present power against , to raze it even to the very foundation ; now prosecuting the total abolition , not only of their present tithes , glebes , but of all other future coercive maintenance in lieu of them , only to subvert their ministry , and quite starve ( if they cannot violently storm ) them out of it . this is most perspicuous , not only by their manifold former libellous pamphlets against our ministers calling , and the late ordinances for tithes , which i have a elsewhere collected , refuted , but by their fresh petitions both against their tithes and ministry too , as antichristian , jewish , popish , &c. especially by john canne the old amsterdam anabaptists second voyce from the temple ( or b synagogue of satan rather ) newly dedicated to those he stiles the supream authority of the nation , wherein he exhorts and stimulates them , by all the art , rhetorick , motives , false arguments he can muster up , to do execution , and take vengeance upon babylon ( to wit , the national ministry , church-worship & government of england , as he explains it , p. . ) till it be wholy desolate , not a stone left upon a stone , till it be thrown down : to take a most effectual and certain course to c starve and famish these antichristian idols , by taking away the food and maintenance whereby hitherto ( as at this present they are nourished , fed and left alive ) and more particularly their tithes . to repeal all laws and statutes formerly made , whereby the whore hath lived deliciously and proudly , and keeps on to this day her whorish attire . to make the whore desolate and naked by making no act or law to stand in force which doth yield any relief to her . to set themselves in array against her ( by the armies power no doubt , which he alludes to ) bend their bow , fan and empty her . to set upon this work speedily , in good earnest ( as it seems they do ) whiles it is to day : and why so ? because the lord himself hath by a call more than ordinarie , called them to this more than ordinary imployment , ( if he could have proved it by scripture or law , it had been more worth than all his pamphlet ) put this fair ( or rather foul ) opportunity into their hands ; hath commanded his sanctified ones , and called his mighty ones ( the army-officers ) to fulfill his pleasure upon this great whore ( the church and ministry of england ) and sion is in travel and ready to bring forth ( this monster of desolation and confusion : ) which if they neglect or delay , then mark how he briefly menaces them with the fates of their late predecessors , i would think you should never be sitting in that house , but be thinking still on those who sate there before you ( and why not as well on faux and the gunpowder trayto●s , as those , since there seems another powder-plot in the vault to blow them up , intended by canne and his confederates if they fail in accomplishing this their desired work ? ) whom the lord hath lade aside as despised broken idols and vessels , wherein his soul had no pleasure . and why ? as they knew not their generation-work ( which he excites them to ) neither were faithfull to the interest of jesus christ . god is no respecter of persons , as men sow , so they shall reap . ex ungue leonem , ex cauda draconem . you may see by these passages , and his whole pamphlet pursuing them , what these malicious , inhuman , barbarous , irreligious , hypocritical anabaptists aym at in their present violent prosecutions against tithes ; even utterly to starve , famish , subvert , extirpate our ministers , ministry , church , worship , government , and make our land a mere spoyl , desolation , as their predecessors did munster , and some parts of germany , whiles in their power . but let canne and his anabaptistical confederates remember what tragical a ends their new king john , with all his princes , grandees , officers , prophets , followers came to in conclusion in germany : and what fatal ruine befell b jack cade , iack straw , wat tyler , sharp and other levelling companions , who had the self-same designs against our english laws , lawyers , clergy , tithes , glebes , as he and they have now , animated thereto by the new-dipped iesuites , and other romish emissaries lately crept into their anabaptistcal fraternity to further this their infernal gunpowder-plot against our church , religion , ministers , magistrates , government , laws , and let them thereupon repent of , desist from , abominate this their diabolical , wicked design , lest they incur the self same punishments in conclusion , by stirring up god and all the whole nation against them , as most accursed rebels , traytors , instruments of satan , yea that very antichrist and whore of rome , they pretend they are blindly acting against , whose designs in truth they are but accomplishing in the highest degree . i must here observe ( and desire all others to take notice of ) three things . first , that in cannes voyce , and in all other late pamphlets , petitions of the anabaptists , wherein they seem to vent their most passionate zeal against antichrist , babylon , the whore of babylon , their chief instruments and supporters , i cannot find so much as one clause or syllable against iesuites , popish priests , papists , romish emissaries ; or exciting the execution of any laws or statutes formerly made against them ; but the whole stream , bent of them all is only against the godly ministers , ministry , worship of the church of england , the presbyterian government , and our present church-worship , the only babylon , whore , antichrist , they intend and fight against , not the pope and church of rome . ly . that they are so far from pleading against the pope , popish priests , iesuites , and urging the execution of the good oaths , laws , made by late and former parliaments●gainst ●gainst them and their treasonable practices , that they have frequently written , petitioned for their repeal , abolition , as bloody tyrannical laws , unlawfull oaths , and procured their repeal or suspension at least , in their favour from some late and present powers . ly . that when some consciencious pious stationers late in their beacons fired , discovered to those then in power , the many sorts , multitudes of jesuites , popish books printed in england within . years last past , in defence of the pope and church of rome , all popish doctrines , ceremonies , and reviling our church , religion , as heretical ; desiring them to take it into their timely considerations , to suppress this growing mischief , design to corrupt the people , and reduce them back to popery , ere they were aware : kiffin with other anabaptists in the army , headed by colonel pride , taking an alarum thereat , subscribed and printed a book intituled , the beacons quenched , ( penned they know best by whom , not the subscribers of it , not yet inspired with the gift of all the tongues therein contained ) pleading for a free tolleration of such popish books printing , dispersing amongst us , of publick disputes by those of that religion , traducing , accusing the presbyterians throughout that pamphlet , and those honest zealous stationers in particular , of no lesse than a new gunpowder-plot , mine , train , ( then ready to be sprung ) to blow up those , colonel pride and his confederates first made , and then stiled , the parliament of the common-wealth of england , and the army too ; only for discovering thes● popish books and trains to blow up our religion : which scandal , as the stationers then fully cleared by their satisfactory reply to that impertinent pamphlet , so the subscribers of it their fellow-souldiers of the army ( better versed by far in mines and fireworks to blow up parliaments , and nearer related to old a guy faux , a low-country souldier , by reason of their military profession , than these stationers and presbyterians , they thus falsly slandered ) have since cleared before all the world , to be a malicious calumny , of which themselves only are guilty , and given just cause of jealousie , fear , to all presbyterians , old protestants and p●ritans to apprehend , that they now really joyn their forces and heads together with those thus pleaded for , to ruine our church , religion , ministry , under the notion and project of suppressing tithes , and of all future compulsory maintenance for the ministers of england , whom they intend to starve and famish ( such is their charity ) if they can but vote tithes down , before they provide any other maintenance ; which vote once passed , the next will be , to vote them both out of their rectories , glebes , churches , ministry too , as cannes voice , and the kentish petition against tithes root and branch , sufficiently discover to all who are not wilfully blind : enough to make all men now to look about them . that the dominican , franciscan , and other popish fryers , were the first broachers of this opinion , that laymen were not bound to pay tithes to their ministers by any divine law or right ; on purpose to draw the tithes of ministers and curates to themselves , and exempt whatever lands or things were given to them from payment of tithes ; i have elsewhere evidenced out of a mr. selden and others ; whe●eupon b johannes sarisburiensis bishop of chartres thus censured them , miror ut fidelium pace loquar , quodnam sit ut decimas & jura aliena usurpare non erubescunt . inquient sortè religiosi sumus . planè decimas solvere religionis pars est . adding , that their exemptions from payment of tithes did derogare constitutioni divinae , derogate from divine institution . and petrus blesensis , archdeacon of bath , in his . epistle inveighs very much against the privileges of the cistercian monks exemption from payment of tithes , as injuriosa immunitas , contra dei justiciam : seeing justiciae divinae manifestè resistit , qui ministris ecclesiae nititur jus decimationis auserre : which these friers not only persisted in , by substracting their own tithes from the ministers by colour of these exemptions , but likewise the tithes of their other parishioners , especially such who contemning and deserting their own parish priests and churches , resorted to these friers chapels , and acknowledged them for their ghostly fathers and confessors . this is most evident by the petition of the parish priests and rectors of london to the archbishop of canterbury and the rest of the bishops in a synode , ( about the year of our lord . ) against the dominicans and franciscans , who much impaired their profit ; wherein they complained a that their parishioners who at leastwise on lords daies and festivals are bound to frequent their parish churches , and to receive sacraments and sacramentals in the same , and devoutly to hear divine service , as also to offer at solemn masses due and accustomed oblations ; did repair to the places and houses of these friers , and scorn and forsake their parish churches , and so confer the due rights of the church wherewith the churches were antiently endowed , upon the friers . also they who confess themselves to these friers , who before were accustomed annually by the canon-law to pay tithes of their tradings to their parish churches , from the time since they submitted themselves to the confessions of these friers , modo debito ac consueto negociationes suas decimare non curant , neglect to pay tithes of their tradings , after the due and accustomed manner . and is not this the very present grievance , complaint of most london and other ministers throughout england , that since these disguised romish friers & jesuits swarming in all places under the masks and titles of anabaptists , quakers , and other sects , have in imitation of these their predecessors , in their writings , preachments , and conventicles declaimed against our ministers tithes , as not due unto them by any divine right , to rob our ministers of , and draw the value of them to themselves ; and since their parishioners who are bound to resort to their parish churches on lords daies and feastivals to hear divine service , sermons , and receive the sacraments in a devout manner have resorted to the conventicles and meetings of these friers and jesuites , and submitted themselves to these new ghostly fathers and confessors , they have quite contemned , deserted their own parish churches , neglected , refused to pay any personal or predial tithes or oblations to their ministers after the due , and formerly accustomed manner , and bestowed the due rights and ancient endowments of their parish churches , ( in value or substance at least , though not in kind ) upon these friers and romish loc●sts , whose very doctrin , practice in this particular of our ministers tithes and oblations , and their substraction of them ( yea in most other tenents now broached by them for new light ) are the very same in all particulars which these friers in former ages both at home and abroad , as i have evidenced in my quakers unmasked , my new discovery of romish emissaries ; and our london , lancashire , newcastle and other ministers , have plentifully demonstrated in sundry publications , with mr. edwards in his gangraenaes ? we may then most clearly discover these romish d wolves now crept in amongst us in sheeps-clothing , by these their fruits , and practices ; whose pleas against our ministers tithes , resolve into these atheistical , unchristian conclusions . . that the tithes of christians increase are too much for god himself who created them , and gives all to them . . too much for christ who redeemed them , who gave himself to death for them , and is a priest for ever unto god the father after the order of melchisedec in their behalf . . too much for the ministers of christ , whose lives , studies , spirits are wholy spent in ministerial incessant labours for their eternal welfare . . too much to be layd out for the instruction , salvation , of their own immortal souls ; when as the other nine parts are consumed on their bodies , families , if not sins and lusts . . too much for an orthodox protestant minister ; but not for a disguised , seducing popish jesuitical priest or frier . o brutish , foolish , bewitched , infatuated englishmen , now at last consider this your desperate folly , delusion , before it be over late , in following these disguised seducers , to your own and our religions ruine . the d. sort of tithe-oppugners are prophane , covetous earth-worms and atheistical wretches , who care not for god or religion , saying unto god and his faithfull ministers , like those atheists , job . , . depart from us , for we desire not the knowledge of thy wayes ; what is the almighty , that we should serve him ? and what profit should we have if we pray unto him ? yet because few of such are now active sticklers and petitioners ( as such ) against tithes , but only mere substractors , detainers of them at present , they are lesse blame-worthy , and not so culpable as the two former , and subsequent ranks , the chief active sticklers , petitioners , writers against them . the th . rank of grand opposites against our ministers and their tithes are prophane , ignorant , cheating , monthly prognosticators and astrologasters , as john booker , nich. culpepper , and above all others william lillie , a most bitter , rayling rabshekeh , whose late almanacks , ever a since . and other idle prophetick pamphlets , are so fraught with scurrilous invectives , raylings , predictions of our ministers , presbyterians downfalls , and their tithes , the souldiers , peoples general opposition , insurrection against them , &c. almost in every line , as if the army-officers , souldiers , anabaptists , priests , jesuites , had purposely hired him , to carry on their designs against our ministers , their tithes , maintenance , to s●bvert our religion ; and the jesuites , anabaptists , furnished him out of all their rayling pasquils , satyrs , with reproachfull terms , invectives , slanders against them , which have swelled up his frothy , filthy papers to an extraordinary bulk , beyond his fellow - prognosticators , and made them so much cryed up , read , studyed both by officers , souldiers , anabaptists , and other simple people , incensing them against our ministers and their tithes , as things which the late constellations , ecclipses of the moon and sun have specially designed to speedy ruine . when i was close prisoner in dunster castle in the year . the officers and souldiers there , sent me lilies a new almanack to read , wherein i found , such a world of bitter , rayling , jesuitical epithites against our ministers , and predictions of the sodain downfall of their minist●y , tithes , maintenance , from pretended malignant constellations , ( which yet on the contrary at the same time did promise acts of grace and favour to popish recusants , who in their zeal and loyalty to the new republick exceeded most presbyterians ; and presoged some worthy actions , in creating new cardinals , &c. to be done in rome and italy as he therein predicted ) as made me suspect him to be more than half a jesuite , or at least their scholar , confederate , pensioner to promote their designs against our ministers ; and to acquaint mr. bradshaw ( my committer ) with others at whitehall so mu●h in my letters to them : but our tithes and ministers not falling down that year , as he falsely prognosticated , he still continued to predict their downfalls in his lying b prognostications , , and . much read and cryed up by the officers and souldiers at pendennys castle in cornwall , who sent me them to read , wherein he retained his former malicious raylings against our ministers and their tithes , to render them odious to the souldiers , army , people , and all originally , because reverend mr. gataker , with the assembly of divines in their annotations to the bible , on jer. . , . and other texts , and others of them of late , had censured the art of judicial astrology , astronomy , and the principles of it ( wherewith he and his fellow-wizards cheat poor people of their mony , by calculating their nativities , telling what wives , husbands , fortunes they should have , whether they should recover their sicknesses , what good or bad voyages they should have , what was become of their lost or stollen goods , or where they should find them , foretelling what weather , sicknesses , publick alterations in state , church-affairs , and church-men too , should happen from the malign or benign aspects , conjunction of the stars , planets , or the ecclipses of the sun and moon ) as a mere cheating imposture ; a heathenish , wicked , unchristian practice , delusion , contrary to scripture , reason , philosophy , theological doctrin , ecclesiastical disciplin ; yea a meer impious fraud and villany . the sottishnesse , falsity , groundlesnesse whereof ( built upon meer ridiculous figments , forgeries , absurdities , dreams , imaginary signes , houses built by them in the heavens , and such malignant qualities as their fancies have ascribed , not god infused into the planets ) those who have been deluded by such cheating knaves and pick-purses , the greatest impostors of any ( as learned henry bullinger in his commentary on jer. . . sixtus senensis bibl. l. . annot. . and the subsequent authors stile them ) may for their satisfaction read at large in bardesanis syms ( the best learned of all the chaldean astrologers ) quoted by eusebius de praepar . evangel . l. . c. . in cicero de divinatione , l. . in picus mirandula his . books against astrology , in joseph scaliger his preface before manilius , in dr. chambers book against judicial astrology , london , . in sixtus ab hemminga , lib. astrologiae refutatae , antw. . in jo. francus offucius , in larvatam astrologiam , an. . in cornelius scepperus , contra astrologos , col. . in georg. trapezuntins , libellus cur astrologorum judicia sint falsa . alex. de angelis , in astrologos conjectores , romae , . in john milton , his astrologaster , . in hieron . savanorola , adversus divinatricem astronomiam , florentiae . in apologeticus interpretis pro tractatu hieron , savanorolae adversus astrologos , flor. . in mr. samuel purchas his pilgrimage , l. . c. . p. , . &c. . p. . in ludovicus vives de corrupt . artium , l. . who censures it as a fraud , not art , in mr. thomas gataker his vindication of his annotation on jer. . against the scurrilous aspersions of that grand impostor , william lilly ; newly printed , . and the authors quoted by him , in bochellus decret . eccles gallicanae lib. . tit. . where the decrees of many french councils are recited against this diabolical cheating profession , prohibiting christians to buy , read , keep , or credit such books , in which many unprofitable , superstitious , false , yea impious and sacrilegious things are contained , which books ought to be suppressed , damned , and utterly abolished ( yea burnt like those acts . . as the council of burdeaux , an . and johan . charberius de gersonio , in his trilogio astrologiae theologizaiae , proves at large . and those who will compare culpeppers & lillies wild monstrous false predictions concerning the several states , kingdoms mentioned in their almanacks , prognostications for this present year , and the great plagues , mortality which should be both the last and this summer in london ( though never freer from pestilence than at these seasons ) with their , and others usual false predictions every month concerning the weather , their manifold contradictions both to themselves and one another , will easily discern them to be meer lyars , impostors , and their art a cheat. now let them all tell me at their leisure , by what warrant from scripture , philosophy , reason , art , sense , the constellations of the heavens , or ecclipses of the sun & moon these last years only should certainly predict , portend , excite souldiers , sectaries , or country people by any divine ordination , or real influence on their dis-affected spirits , to pull down the ministers of the gospel , & their tithes , being both of divine institution and establishment to a continue to the worlds end : when no other constellations , ecclipses of like nature in any former ages of the world since the creation , portended or effected the like ? or how the stars in heaven should thus professedly fight against , and pull down those b stars ( the ministers of the churches ) which christ himself holds in his right hand ( out of which none can pull them ) and their tithes too , being antient , perpetual appurtenant to christs own eternal priesthood , heb. . , to ? more particularly , i shall desire this scurrilous impostor lilly to inform me , how it comes to passe , that the celestial stars , planets , ( and good angels which he oft couples together in his merlius ) who in the year . ( as he c prints in his ephemeris for it ) by their good influence stirred up by gods providence the parliament to take care , that preaching ministers should be placed in every county of this kingdom , and a sufficient stipend allowed where formerly none was ; for which we ( writes he , including himself in the number ) must ever acknowledge our thankfulness : and that the figures he erects on the x. of march , . astrologically predicting the state of our english affairs and clergy , should by the rules of astrologie , and his own iudgement thereon ( then printed , venus being then found in the ninth house ) import , that many of the clergy should trot and trudge , or change their habitation out of one county into another , nay shall willingly travel long journies ; by which i conceive ( writes he ) is meant , that our present parliament shall this year place worthy men into warm benefices , and distribute the deserving clergy-men of england into several quarters of this kingdom , as in their wisedoms they think convenient . blessed be god , for his creatures , the stars , promise they may travel safe without prejudice , or at least , they indicate so much , &c. and shall obtain profit and good by their oft changings , and remove of habitations . and the godly ministers so dispersed into several counties , shall prevail with the people to amend their lives , and live more soberly , religiously , &c. as also , that most of those itinerant preachers , or divines , shall leave behind them lesser livings , and go to enjoy better . to which he addes by way of jeer this passage against mr. geree for writing against astrology , now for that astrologo-mastix is a master of arts , and capable of preferment , i humbly implore , he may be made priest of teuksbury , from which place ( per varios casus ) he once in haste trotted , &c. that but years after this , the heavenly stars , planets , angels in the year . ( as his a ephemeris then prognosticates , very frequently ) should threaten ill and unwilling payment of tithes , in many counties to the clergy : much heart-burning of the people towards them . that after a small season , or a very few years , no tithes shall be paid them : for a plain people will arise , gifted by god with such spiritual knowledge , as the generality of the people will decline their sophistical school doctrines , and wholly adhere unto those who preach god only , and jesus christ his son : and that they should be so implacable , as to continue these and worse threatnings against all presbyterian ministers , presbytery , rectories , tithes , and the whole english clergy , ever since this year , so far , as to portend or ascertain , not only their general opposition by swordmen , the generality of the nation , and their governours and people , but sodain downfall and extirpation : of which all his merlins and prognostications surfet . tantaene animis caelestibus irae ? doubtlesse , the heavenly stars , planets , and good angels are not so contradictory to themselves , or maliciously , irreconcileably malignant against our ministers persons , callings , tithes , presbytery , as this arch-cheat , would make poor simpletons believe . but it is only the language and malignity of his own malicious heart , tongue , pen against them , because enemies to his absurd , diabolical , lying , cheating , artlesse art of astrology , witnesse his own words ; i hate presbytery ( and hatred and affection as himself writes , cause often errours and mistakes in their art and predictions : ) art thou a presbyterian ? thou art an enemy to astrology , and weariest thy auditory with invectives against me . i desire thee to conform , lest a worse thing happen to thee ( than deans and chapters lands ) for if thou labourest to root up or pull down this fabrick , which god hath erected , then i say , in a small season , or very few years , no tithes will be paid thee , &c. with many such like a passages since , wherein he reviles , vilifies , mr. calvin , perkins , geree , case , calamy , farmer , gataker , owen , with sundry other divines by name , and all of them in general , only because , they have preached or writ against the vanity , falsity of his cheating astrology , by which he gets his living ; as much as he reviles , jeers his companion , wharton , ( naworth , naw●rth , ) for contradicting him in his own science , whom yet elsewhere himself and culpepper too , extraordinarily applaud for his exact transcendent knowledge in astrology , though all . of them diametrically contradict each other in their predictions from the stars , or different factions rather . this malice of theirs against our ministers and their tithes ( wherein they have proved lying diviners hitherto , and will do so to the worlds end , if we credit matth. . . ephes . . , , ) no doubt is elevated , augmented by jesuites and popish spanish agents , the chief promoters of this study of astrology amongst us , and very intimate with these lunatique , star gazing incendiaries and time-servers ; it being the expresse advise and project of thomas campanella ( a great astrologer and jesuited italian fryer , much magnified by lilly in some of his merlins , ) in his treatise de monarchia hispaniae , wherein , as he shews the king of spain the readiest means to make himself monarch of the whole world , and particularly of a england , scotland , ireland , holland , ( by dividing them one from and against another by unnatural intestine wars , turning our monarchy into a common-wealth ; dividing our three kingdoms one from and against another , by making them republicks or elective kingdoms , breaking our naval forces by the dutch fleet and other nothern nations , fomenting perpetual divisions and schisms amongst us : thereby to destroy our civil government , forces , and become a prey to the spaniards at last ) so he prescribes this , as b the readiest way to undermine our protestant religion , and draw men from the study , love , practice thereof , to promote the art , study of astrology and telesian arts amongst us , to erect schools of astrology and mathematicks , and encourage the students of it with rewards . which i wish all lovers of our religion , vigilant statesmen , and lilly ( with other astrologasters , the chief promoters of this design ) to take special notice of , and thereupon to abandon , suppress this impious , atheal , sottish , cheating art , grounded upon no rules of reason , philosophy , divinity , experience , but mere imaginary whimsies , figments , chymeraes , signes , houses in the air , of lunatick cheats and impostors , as all rational , judicious scholars who peruse their scheams , astrological conjectures , judgements , predictions , treatises , must acknowledge ; and i by gods assistance , may hereafter demonstrate to the world if there be occasion , being not so pertinent to my present theam . the fifth and last squadron of professed enemies against our ministers tithes , glebes and setled maintenance , are jesuites and jesuited papists : and that not out of any malignity against tithes themselves , which they all hold to be of divine right and institution , according to the definition of their idolized a council of trent , sess . . de reformatione , c. . which thus determines against their present practice and design : non sunt ferendi qui variis artibus decimas ecclesiis obvenientes , substrahere moliuntur , aut qui aliis solvendis temerè occupant , & in rem suam vertunt . cum decimarum solutio debila sit deo. et qui eas dare noluerit , aut dantes impediunt , res alienas invadunt . praecepit ergo sancta synodus , omnibus cujuscunque gradus aut conditionis sint , ad quas decimarum solutio spectat , ut eas ( ad quas de iure tenentur ) in posterum cathedrali , aut quibuscunque aliis ecclesiis vel personis quibus legitimè debentur , integrè persolvant : qui vero eas aut substrahunt , aut impediunt excommunicentur ; nec ab hoc crimine nisi plena restitutione , secuta , absolvantur : but merely out of malice and design against our ministers and their ministry , of purpose to starve and ruine them , thereby to set up popery , and intrude themselves into their rectories , yea into our bishopricks and deaneries too , and then they will not only cry up tithes again , with the due payment of them to themselves from the people , according to the utmost rigour of this trent-canon , and other laws , for their due payment by divine and human right , but likewise resume all bishops , deans , chapters lands , ( if not abby lands too ) into their hands , as sacrilegiously alienated from the church without lawfull power and right , as robert parsons the jesuites memorial for reformation , ( written at b ) sevil in spain , anno . ) william watson in his quodlibets , p. , , . with the c statute of mariae , parl. . c. . for reviving the bishoprick of durham , restoring all ecclesiastical and temporal jurisdictions , lands , hereditaments whatsoever thereunto heretofore belonging , though dissolved , setled in the crown and town of newcastle , by the statutes of e. . c. . and another act not printed , will inform the world , and alfonsus de vargas de stratag . jesuitarum , p. . now that the jesuites ( many hundreds of which society now lurk every where amongst us under the disguise of anabaptists , souldiers , tradesmen , seekers , dippers , converted iews , physicians , gentlemen , travellers , merchants , and other like , to work our ruine ) have a hand in this design to deprive our ministers of their tithes and rectories , to work their ruine , is most apparent . first , by their former procedings even against their own secular priests in england , where they seeking to work their utter ruine , subversion , supplantation , to intrude themselves into their imployments , by their machiavel , atheal plots , about the year , to , did first by their scandalous books , libels , slanders against the●e priests , bring their persons and priesthood into scorn and contempt amongst the generality of the english papists , preferring every lay brother of their society before them , executing their priestly function without a lawfull call , or ordination : and then endeavoured to substract all maintenance and contributions from them ; threatning to make them leap at a crust , and to pine and starve them ; debarring , interrupting all their maintenance from english recusants , in such sort , that many of them pined away through grief of mind , want of food , and were so near perishing , that they were necessitated to petition queen elizabeth and her council , for some allowance in their prisons to keep them from starving . yea they and their jesuited followers and proselites derided their seminarie priests and ghostly . fathers in this manner , ah , hah , hah ; a seminary , and old queen mary priest , a secular , &c. you shall see them all leap at a crust ere it be long , &c. and having got iudas his office ( to carry the mony bagg ) into their own and substitutes hands , they disposed of the wealth and charitie of catholicks ( consisting of many thousand pounds ) where , how , and to whom they pleased , for their own enriching and advancement : which made the secular priests write , that england was become wild , priesthood and sacraments had in contempt , religion made but a matter of atheal policy ; and priests through the jesuites falsehood , calumniations and untrue suggestions to the superiours and all estates , brought into such high contempt , that their verie ghostly children , whom they had begotten , had forsasaken , houted , shunned , despised them , as if they were none other but their stepfathers , and shewed their charity so coldly to them , as many of them were in extream want , and few or none of them scarce able to live ; as we may read in watsons quodlibets against parsons and his fellow jesuites , p. , , , , , , , , , , , , , , , , , , , , , . and elsewhere throughout that book : in joan. bogermanus catechesis jesuit . l. . c. . thuanus hist . l. , mercurius jesuiticus , tom. . p. . william clark his reply to father parsons libel , printed . fol. , to , which being the very condition and complaint of our godly protestant ministers in most places throughout the nation at this day , is no doubt a storm of these jesuites raysing , a very plot and design of their hatching , fomenting to ruine our ministers and their ministry now , as they would have done their own secular priests then in england , to advance their own power , profit , ly . it is evident by a rob. parsons and other jesuites old project for reformation of england , when they should get power in it : to take away all lands , manors , benefices and setled maintenance of the church from the english clergy and universities , and make all ministers , and scholars mere pensioners and stipendiaries at their pleasure● , set up itinerary preachers fixed to no particular church , ( like our wandring quakers , anabaptists , sectaries of late ) instead of parochial pastors , of which more anon . ly . alfonsus de vargas toletanus : in his relatio ad reges & principes christianos , de stratagematis politicis societatis jesu , ad monarchiam orbis terrarum sibi conficiendam ; printed . cap. , to . proves at large out of the jesuites own printed defence and other writings ; that these new doctors , of no conscience , no faith , no honesty or shame , have perswaded the emperour and other kings , against their oaths , trusts , duties , charters , the law of nations , and all divine and human laws , that it was lawfull for them , upon a pretext of necessity , for the ease of the people , and maintenance of their wars , souldiers , to alienate the lands , revenues , maintenance of abbies , religious men and of the church , upon souldiers , for the defence of their bodies , and of the church ; that so themselves might gain a share of them for the advantage of their own societies , contrary to the wills , intentions of the first donors and founders : whereupon he thus justly jeers them , cap. . p. . that the institution of the jesuites society peculiarly tends to this , that their colleges should be instituted and society maintained out of the ruines of the church , and rapines of other mens goods , à quibus societatis institutor et conditor ignatius , cum etiamnum ad legionem bellator esset , minime alienus fuisse , nec a solita militum rapacitate quicquam demutasse , sine ulla ejus contumelia creditur , etsi autem militiam mutavit ac simul cum sociorum ne dicam furum manipulo christo imperatori sacramentum dixit , non propterea rapinam omnem ejerare necesse habuit , &c. he remaining a plunderer still , after he became a saint : seeing the prophe● isay seemeth thus to prophecy both of his rapine and wound in his halting legg , cap. . tunc dividentur spolia multarum praedarum : claudi diripient rapinam . therefore no wonder this spirit of rapine continues in his disciples : who doubtlesse have infused the self-same spirit of rapine into our anabaptists and souldiers , into whose societies they have secretly insinuated themselves ; somenting and intending to lengthen out our wars so long , of purpose to make a prey of our remaining church-revenues , rectories , tithes , and college lands too at last , ( as they have done of other church-revenues already dissipated ) out of a pretext of necessity , as is most transparant to all intelligent peoples eyes , thereby to destroy our religion by devouring our ministers , churches patrimonies , the probable , if not inevitable consequence of this jesuitical project , if effected , as is most apparent by this notable passage of roderyck mors formerly a grey fryer , in his complaint and supplication to the parliament of england , about h. . after the dissolution of monasteries , pertinent to my purpose , and as worthy consideration now as then , ye that be lords and burgesses of the parliament house , ( writes he ) i require of you in the name of my poor brethren that are englishmen and members of christs body , that ye consider well ( as ye will answer before the face of almighty god in the day of judgement ) this abuse , and see it amended . when antichrist of rome durst openly without any visor walk up and down thorowout england , he had so great favour there , and his children had such crafty wits ( for the children of this world are wiser in their generation than the children of light ) they had not only almost gotten all the best lands of england into their hands , but also most part of the best benefices both of parsonages and vicarages which were for the most part a all improved to them . and when they had the gifts of any not improved , they gave them unto their friends , of the which alwaies some were learned , for the monks found of their friends children at school . and though they were not learned , yet they kept hospitality and helped their poor friends . and if the parsonages were impropred , the monks were bound to deal almesse to the poor and to keep hospitality , as the writings of the gifts of such parsonages and lands do plainly declare in these words , in puram eleemosynam . and as touching the almesse that they dealt , and the hospitality that they kept , every man knoweth , that many thousands were well relieved of them , and might have been better , if they had not had so many great mens horse to feed , and had not been over-charged with such idle gentlemen , as were never out of the abbies . and if they had any vicarage in their hands , they set in some time some sufficient vicar , ( though it were but seldom ) to preach and to teach . but now that all the abbies , with their lands , goods and impropred parsonages be in temporal mens hands , i do not hear tell that one half peny worth of alms , or any other profit cometh unto the people of those parishes . your pretence of putting down abbies , was to amend that was amiss in them . it was far amiss , that a great part of the lands of the abbies ( which were given to bring up learnned men that might be preachers , to keep hospitality and give alms to the poor ) should be spent upon a few superstitious monks , which gave not xl. pound in alms , when they should have given cc. it was amiss , that the monks should have parsonages in their hands , and deal but the xx. part thereof to the poor , and preached but once in a year to them that paid the tithes of parsonages . it was amiss , that they scarcely among xx set not one sufficient vicar to preach for the tithes that they received . but see now , how it that was amiss , is amended , for all the pretence . it is amended even as the devil amended his dams leg ( as it is in the proverb ) when he should have set it right , he brake it quite in pieces . the monks gave too little alms , and set unable persons many times in their benefices . but now where xx . pound was yearly given to the poor , in more than c. places in england is not one meals meat given . this is a fair amendment . where they had alwaies one or other vicar , that either preached or hired some to preach , now is there no vicar at all : but the farmor is vicar and parson altogether , and only an old cast away monk or frier which can scarcely say his mattins , is hired for xx . or xxx . shillings meat and drink , yea in some places for meat and drink alone , without any wages . i know , and not i alone , but xx . m. mo , know more than d. ( we may now adde . ) vicarages and parsonages thus well gospelly served , ( yea not served at all , but the church doors quite shut up ) after the new gospel of england . so he . this doubtless will be the general sad condition of all england ( as it is now in most part of wales ) if tithes and rectories be quite voted down , abolished , or disposed to the souldiers , or brought into a common treasury ( which will hardly leave ministers the tenth of their tithes , as our late sequestrators left not the tenth nor fifth part clear gains , and value , of all sequestrations generally throughout england , to the state , as i found by examination of their accompts upon oath ) which is now so violently prosecuted , endeavoured by many . and then we shall have a glorious blessed reformation indeed , according to the popes and jesuites hearts desires , who like ravening wolves will make a prey of all flocks in the defect and absence of able pastors , through want of maintenance and poverty , as they have done in many places throughout the realm , seduced by them to jesuitism , anabaptism , atheism , through defect of able ministers , and ejection of former incumbent pastors under pretext of scandal , insufficiency , or malignity , by arbitrary or anabaptistical committees , sequestrators , prosecutors , without any legal tryal by their peers , or any care at all to place better , abler , or any minister at all in divers parishes in their places : whereupon these active jesuites , with other romish emissacries under the disguises of anabaptists , seekers , dippers , inspired brethren , quakers , ranters , souldiers , new illuminates of extraordinary endowments , and itinerary predicants , who pretend to preach the gospel freely , have seduced thousands , divided the people into sundry sects , and almost ruined our church and religion in a short space , which they will soon accomplish to their hearts content , can they now but vote down tithes , glebes , and set up new committees in all places of their own and the anabaptistical party , ( concurring in design and most principles with the jesuites , as a watson in his quodlibets , and others prove at large ) to eject our remaining ministers at their pleasure , under pretext they are antichristian , scandalous , and no ministers of jesus christ ( as john canne and others have already prejudge● them ) that they and their agents may step into their places ; and at last , when all their designs against our state , church , governm . are produced to maturity , re-assume their tithes , rectories , with our bishops , deans , chapters and abby lands too into their actual possession , according to the jesuite parsons and his companions long prosecuted project , at large related by william watson the priest in his quodlibets , p. , , , , ● , , . with other plots lately prosecuted ad unguem to subvert our religion , laws , government , monarchy , and enslave us to the iesuits , popes , spaniards tyranny and vassalage in conclusion ; first laid by parsons and other pragmatical jesuites , then seconded by thomas campanella , in his treatise de monarchia hispanica c. . . and elsewhere : prosecuted of late years by the jesuites and spanish agents on the one hand ; and cardinal richilieu and his instruments on the other hand ; who at his death in the begining of our late warrs ( which he was very instrumental to rayse ) recommended the prosecution of them to the french king and his successor cardinal mazarin ; as a noble italian count , conte galliazzo gualdo priorato , in his historia , part . printed at venice in to . anno . ( dedicated by him to the king of poland , and written in italian ) p. , records in these words , worthy all english statesmens special notice : where writing of the affairs of the year . and the death of cardinal richelieu in particular , he records , that amongst other things he caused some papers to be delivered before his death to the king of france , full of policies and maximes of state , directing him how to carry on his business with all forein states . his advice in relation to england was this . che sopra , &c. that above all other things the king of france should endeavour to keep the government of great britain divided , by upholding the weakest party , that the other might not make it self too powerfull ; reducing the kingdoms of england , scotland , and ireland to be divided ( by one of these two means or both ) either by nominating ( new ) kings : or by reducting them to a common-wealth . yet with this caution , that when they are reduced to a common-wealth , so to order it , that it may not be intirely one , but divided : for republiques ever enemies to potent neighbours , and iealous of their liberties , ought to be suspected by the state of france . how punctually this advice hath been pursued by the french ( as well as parsons and campanellaes plots of like nature by the spaniards ) those who please to peruse the lord george digbies cabinet letters ( printed in the collection of all the publique orders , ordinances and declarations of parliament in folio , by the commons order ) . p. , , , , , . and my speech in parliament p. . & , to . may read at leisure , and every mans observing experience can sufficiently attest . the lord now at last give us hearts to be deeply sensible of it , and grace , zeal , courage to make timely use of it for the preservation of our kingdoms , nations , churches , ministers , religion from impendent ruine . having given the world this brief accompt of the principal promoters , prosecutors of the present grand plot against our ministers , their tithes and rectories , i cannot upon serious consideration of it but foresee and divine , that if all or any of these projectors ( through gods heavy judgment on us for our sins , and detestable violations of all oaths , vows , covenants , trusts , protestations , promises , declarations divine and human laws ) should by power , fraud , policy , or armed force so far prevail with our present legifers or swaying grandees , as totally to take away and abolish the rectories , tithes and present setled maintenance of our ministry , for the souldiers pay , or other ends ; or else secretly to bring them all into a common treasury , and reduce all our ministers to set arbitrary stipends out of them , to dispossess them of the future actual possession of them , and make them wholy dependent on the arbitrary discretions of new intruding land-lords into their churches , patrimonies , freeholds from whom they never received them at first ; as it would inevitably produce a world of mischiefs and inconveniences both to all patrons and parishioners throughout the nation , without the least ease or benefit to the people ; so it would certainly either totally ruine our ministers , making them all poor fryers mendicants , neglecting their callings , studies , to get their living by begging from door to door , and as a peter martyr observes , to be ventris potius quam ecclesiae ministros , ostiatim validè mendicare , & non mendicantes , sed manducantes appellari : and thereby subvert our church and religion with them in very few years space , open such a wide door for the pope and whole body of popery to flow in upon us again with an impetuous irresistable deluge , that we should no waies be able to resist their progress till they were re-estated in their former supremacy and prevalency amongst us . and then rhose very romish factors who are now so violent against tithes and rectories , of purpose to starve our ministers out of them , and their ministry for the present , will not only forthwith resume ( as they did in b queen maries daies ) their pristine abolished pontifical power , and set up their ecclesiastical consistories , high commissions , and bloudy inquisitions amongst us , higher than ever they were in former ages , to the utter extirpation of our protestant ministers and professors too , but likewise presently resume into their hands all those rectories , tithes and antient dues , whereof they now endeavour to deprive our ministers ; with all our late arch-bishops , bishops , deans , chapters , cathedrals lands and revenues , as sacrilegiously alienated from the church , against the lawes both of god and man , as well as against their popish b canons , by those who had no right to dispose of them , if they proceed to resume all abby lands too in protestant hands at least . and then all late or antient purchasers of such lands , now confederating with them out of covetousness , ambition , rapine , or other respects , will repent too late of their inconsiderable , unrighteous , unchristian complyance with them against our ministers glebes and tithes , and have as ill a bargain in conclusion , as divers old projectors had in the purchase of our crown revenues , when resumed , or setled in the crown again , by many special c acts of resumption , for the publick weal and ease of the people in their taxes , as being the constant , standing revenue of the whole kingdom to defray its ordinary publick expences , which none can or ought to alien or purchase from the republick to enrich themselves by the publick losse . wherefore i shall now refer it to their saddest thoughts to consider , whether it will not be far safer for all such army-officers and others who have purchased church lands , to joyn together with all such zealous protestants who desire the continuance of our ministers antient tithes and maintenance ( more aimed at than impropriators tithes ) against these jesuites and romish emissaries now oppugning them ; and to use their utmost endeavours to detect , apprehend , prosecute , execute all our former good laws against them , to prevent their mischievous present and future designs against our ministry , church , religion , nation ; than ignorantly or wittingly to confederate with and assist them to accomplish their present sacrilegious projects , to ruine us ( and themselves with their posterities ) in conclusion ; and thereby incur the self-same crime , charge of high treason which themselves and the whole parliament of england so lately prosecuted against canterbury in the , , , , , , & . d articles of his original charge , for which he lost his head on tower hill. to draw to a cloze of this proposition , i shall desire all truly fearing god throughout the nation and army too , sadly to consider these particulars . . that those who are the chiefest sticklers against tithes and our ministers setled coercive maintenance ( especially jesuites and anabaptists ) are the greatest professed open adversaries to our ministery , church , religion of all others , desiring nothing but their utter ruine , as their late printed pamphlets and petitions manifest : therefore to gratify them in their designs herein , is to ruine all at once , for whose defence we have spent so much christian bloud , treasure , pains of late years , against the common enemy and jesuited popish party . . that many of those who in their printed papers , have decryed our ministers tithes and coercive maintenance as inconsistent with the peoples liberties , and a great bondage to them , have as b earnestly declaimed against all inclosures , coppy hold tenures , land-lords old rents , services , antient customes , imposts ▪ which being not so antient , nor ratified by so many statutes , charters , muniments of all sorts as tithes are , will not be able to stand before their opposition and arguments against them , if our tithes and ministers glebes should once fall before them . that if our besotted nation shall be so stupid as to admit or permit any company of persons whatsoever a sufficient legal power or jurisdiction without any pretended crime , attainder , legal conviction , or trial by their peers , at their meer wills and arbitrary discretions , to deprive all our godly ministers throughout the nation of their rectories , tithes and antient dues , though ratified by the law yea gospel of god himself , by an uninterrupted title , prescription in their predecessors from the very first planting of the gospel in our nation , and more hundreds of years , than the antientest families in the nation have enjoyed their inheritances , by more charters of our kings , more particular lawes , statutes of our successive parliaments in all ages , than all the nobility , gentry , corporations , commons of the realm are able to produce for the rights , titles , defence of their particular lands and inheritances , against the rapines , intrusions , claims , seisures , confiscations , sales , alienations of any either claiming or usurping such a power or jurisdiction by the sword or otherwise : they will thereby both admit them and invest them in as sufficient a legal power and jurisdiction , without the least pretended crime , attainder , legal conviction , or trial by their peers , at their meer arbitrary wills and discretions , to deprive , strip all the nobility , gentry , corporations , commons of the realm of all their mannors , lands , inheritances , estates , chattels , privileges , franchises whatsoever ; being not so well fenced by the laws of god and men against their rapines and depredations as tithes are ; and those who will make no conscience upon any grounds or pretences to invade the one , will make no scruple to act the other , as the histories of a jack cade and his complices practices , designs at home , and the anabaptists abroad will sufficiently attest . yea it will be but just with god to engage such arbitrary powers to act the later , to the ruine of them and their families , if they shall either assist , permit , encourage them by their silence or cowardice , to perpetrate the other , to the disinheriting of the church , the ruine of their faithfull ministers themselves , and that very religion which they pretend to profess and practice . . that as tithes are the fittest maintenance for ministers of all others , as invented , appointed by the very wisdom of god himself , and the best , the wisest of his saints in all ages ; holding the self-same proportion in relation to the ministers and parishioners in times of plenty and dearth , good years or bad , fair harvests or foul , rising or the falling of the prices of corn , lands , and other commodities ; affecting them both alike with the mercy and bounty of god in times of plenty , and the judgments of god in times of scarcity , or unseasonable weather ; more easily parted with by the country-man in kind , by several small parcels as they grow due , than in ready money in one or two intire sums , which they are most loth to render and part from of any thing , as that they b most affect : yea farr lesse troublesom to , more convenient for our ministers persons , families and necessary cattel , than bare stipends , which must enforce them to run to markets to buy all their corn and other provisions both for their houshold , horses , cattel at the dearest rates . so if this maintenance by tithes be once abolished , either before any other competent maintenance setled in its steed , lesse grievous and inconvenient than tithes , ( which all wise men in the world will never be able to invent , much lesse to establish as things now are setled ; ) or ministers left wholy to an arbitrary , unconstrained benevolence without any limited proportion , or means to recover it if detained , as some now petition : this expected proposed unconstrained maintenance would in verity and reality , signify just nothing , and be no maintenance at all , in the petitioners own sence and intention ; as appears by john cannes forecited passages , and the very words of their petitions ; since they refuse to pay them their very tithes yet due by law , and never freely contributed one penny to them for their ministry , which they revile , disclaim as antichristian . wherefore if any new-fangled politicians resolve to settle such a new maintenance only insteed of the old , for the peoples pretended ease ; let them first establish , settle an arbitrary excise , custome , uncoercive voluntary impost , and monthly contribution as this on the people for maintenance of the army and navy , ( not so simply necessary as the ministry for our real welfare ) without any compulsory means to recover it if not freely rendred , till the next harvest come , and see what a competent maintenance that will be for the souldiers and seamen ; and provide that all tenants for the year ensuing , shall render only what rents they please to the state , their landlords , & lessees , who shall have no power to distrain , sue , or enter upon any of them in case they deny to pay their rents : and trie what a certain annual revenue this whimsy will produce to the states and land-lords purses : or else give over this jesuitical anabaptistical devised new maintenance for our ministers , as a stratagem only to starve their bodies , and their peoples souls , without any more debates concerning tithes , to gratify such malicious projectors , and offend all godly people through the nation , who deem this old way of maintenance , of gods own prescription , farr better , lesse inconvenient in all respects than this arbitrary or any other new-fangled way of these or other mens invention . ly . that although god by his divine providence is able to support the faithfull ministers of the gospel , though totally stripped naked of all their glebes , tithes , antient maintenance , through the unrighteousnesse or malice of ungodly men , as he did the apostles and his ministers in all ages , in times of persecution ; yet let all such who have , or shall have a hand in such a sacrilegious design consider , . that they shall be as bitter enemies to and persecutors of the ministers of christ amongst us in and by this very project , as a julian the apostate christian was to gods faithfull ministers in the primitive times , when he took away their preferments , glebes , and church revenues ; as the high commissioners and prelates were of late to all those godly puritan ministers whom they deprived of their benefices for non-conformity to their ceremonies , and no real crime deserving such an inhuman censure , depriving them of their livelyhoods . ly . that they shall hereby draw a great scandal upon our very religion it self , church , nation , render them odious , sacrilegious to all foreign churches , nations ; gratify , rejoyce the hearts of the pope , jesuites , papists and other professed enemies of our religion ; accomplish their designs against our church and ministers ; exceedingly sad the hearts , and grieve the righteous souls of all gods faithfull saints amongst us , of all protestant churches in foreign parts , and draw this just censure on themselves . pet. . , . an heart they have exercised with covetous practices , cursed children , which have forsaken the right way , and are gon astray following the way of balaam , the son of bosor , who loved the wages of unrighteousnesse . these are wells without water , clouds carried with a tempest , to whom is reserved the mist of darknesse for ever . ly . that although god should miraculously preserve a faithfull able ministry and his true religion still amongst us through the bounty and charity of other well affected christians , yet they have done their uttermost endeavours to destroy them , and the peoples souls with them , both for the present and succeeding ages . ly . that this unrighteous violent act will in all probability bring in a world of confusion , atheism , schisms , heresies , divisions , contentions , blasphemies , disorders amongst us , in all places ; a b famine of the sincere preaching of gods word ; a neglect and contempt of learning and piety ; a c dilapidation , spoliation of all or most parish churches , chapels ; a confusion of the bounds of all parishes , and parochial congregations ; and bring all those calamities on our nation , as it did upon the israelites when jeroboam thrust out the priests and levites from their glebes , suburbs , ministry : thus registred chron. . , , . now for a long season israel was without the true god , and without a teaching priest , and without law ( as some would have us now ) and in those days ( mark the consequence ) there was no peace to him that went out , nor to him that came in , but great veration upon all the inhabitants of the country : and nation was destroyed of nation , and citie of citie , for god did vex them withall adversity . in which condition they continued , till king asa and the people renued , repaired the decayed altar , house and worship of the lord , gathered all the people to jerusalem to worship god , and enter into a solemn covenant and oath to serve the lord god of their fathers , with all their hearts , and with all their soul : and that whosoever would not seek the lord god of israel , should be put to death , whether small or great , man or woman : offred sacrifices to the lord of the spoyl they had taken from the enemy , . oxen and . shéep ; and brought into the house of god , the things that his father had dedicated , and himself had dedicated , silver and gold and vessels ( formerly taken thence ) and then there was no more war in divers years . v. . to the end of the chapter . and probably our wars , taxes , vexations will never end , till we give over our late irreligious , sacrilegious rapines , church robberies , and do the like , as this pious king and his people here did . ly . that this discouraging , robbing , abusing , despising , mocking , misusing , of gods messengers , prophets sent amongst us , and of all his and their words against our wicked atheistical , sacrilegious rapines , is the high way to provoke the wrath of god to rise against us till there be no remedy , yea to bring in a powerfull foreign nation upon us to pillage , waste , destroy , enslave our whole nation , extirpate us out of the land of our nativity , and carry us captives to a foreign nation , as it did gods own people heretofore . chron. . , to . sufficient motives to deter us from such a dangerous practice . ly . i must inform our army-officers and souldiers , that it is expresly against the very laws and rules of war even in a foreign enemies country won by conquest , to rob , destroy , pillage churches , temples , or things devoted for the maintenance of gods publique worship ; which not only the best christian generals , and souldiers , but many heathen and mahometan generals , princes , commanders made conscience not to plunder , deface , demolish or substract , as grotius proves at large by many instances in his book de jure belli . l. . c. , . sect . , , . annotata on them . how much more then is it against the law of war and armes it self to make a prey , plunder of churches , rectories , glebes , tithes in their own native country , against their own consciences , covenants , commissions to defend them ? yea such generals , souldiers and whole armies who have made no conscience to observe it , have been frequently destroyed for their sacrilege , as many heathen historians observe , as well as christian : herodotus , in my edition p. , , , , , , , , , , , , . diodorus siculus bibl. hist . p. , , . dion cassius rom. hist . p. . justini historia l. . p. . l. . p. , to , , , . caelius rhodiginus ant. lect. l. . c. eutropius rer. rom. hist . p. , , . paulus diaconus p. . nicetus hist . p. , . laurentius begerlink . chronogra : p. , , . record sundry examples of this kind , both among pagans and christians , to deter others from this dangerous destructive sin : which if they neglect & scorn , i shall then desire them to remember that saying of euripedes an heathen poet in his troadibus , that he shall receive the like exemplary punishment . homo quisquis urbes vastat , & dis manibus sedes sacratas , templaque , haud recte sapit , nam similis ipsum pestis excidii manet ly . it is the resolution of d seneca the philosopher . quisquis id quod deorum est , sustulerit & consumpsit , atqu● in usum suum vertit , sacrilegus est : and all e canonists , casuists , schoolmen , divines whatsoever accord ; that it is sacrilege for any persons or powers whatsoever to invade or take away any thing which our ancestors or any others have solemnly vowed , dedicated for the necessary maintenance of gods publique worship and ministers under what specious pretext soever it be done . therefore to take away or abolish our ministers tithes , glebes , rectories and other dues conferred on them by our pious ancestors , and make spoyl , havock of the churches , edifices erected by them for gods publique worship , must questionlesse be sacrilege ; as god himself expresly defines , mal. . , . with all commentators thereon , old and new ; and gratian caus . . qu. . this the famous emperor , souldier charles the great , and ludovicus surnamed the godly and most christian , joyntly resolve , capit. caroli & ludovici l. . cap. , , , , . & l. . c. . where they thus conclude . scimus res ecclesiae deo esse sacratas ; scimus eas esse vota fidelium , & pretia peccatorum . quapropter , si quis eas ab ecclesiis quibus a fidelibus collatae deoque sacratae sunt , aufert , proculdubio sacrilegium committit . caecus enim est qui ista non videt , &c. si ergo amico quippiam rapere furtum est , ecclesiae vero fraudari , vel abstrahi indubitanter sacrilegium est omnes enim contra legem facientes resque ecclesiae dirimentes , vel ecclesias sacerdotesque contra divinas sanctiones vexantes sacrilegi vocantur , atque indubitanter infames sacrilegique habendi sunt , &c. what penalties have been inflicted upon such who were guilty of this sin by christian princes in foreign parts : i shall briefly inform this sacrilegious age . f theodoricus king of the gothes in his edict . c. . enacted : that if any man should violently take any thing from churches , he should lose his head . and alaricus the gothish king , though an arrian , when he took rome by force of armes , and his souldiers had taken the sacred vessels out of st. peters church there , and brought them to him ; commanded them to carry them back again to the church , with their own hands which took them thence , ut cupiditas quae depraedationis ambitu admiserat scelus , devotione largissima deleret excessum : as cassiodor relates , l. . epist . . among the a friseans laws made by their wisemen , tit. . de honore templorum ; this is one ; he who shall break a church , and take away the holy things thence , let him be carried to the sea , and in the sand which the tide is wont to cover , let his cares be slit , and he be gelt , and then let him be sacrificed to the gods whose temples he hath violated . the neopolitan laws l. . tit. . enact ; that whosoever shall violently break open a church , and take away any gifts or consecrated vessels thence , shall be punished as a capital off●nder , and lose his life . b charles the great and lewes the godly , enacted ; that if any person violently took from any church , priest or minister any thing belonging to them , and were convicted thereof , or confessed the same , he should have sentence of death given against him , as guilty of sacrilege , and that it should be not only lawfull , but commendable , to prosecute and avenge this sacrilege and injury done to the church , priests and ministers , as a publique crime , deserving punishment , and that if any did sacrilegiously invade or molest the possessions and lands of the church , he should be perpetually banished for it . capit. caroli & ludovici l. . tit. , . and tit. . they thus determine . all things that are offered to the lord , are without all doubt consecrated to the lord , and not only the sacrifices , which by the priests are consecrated upon the altar to the lord , are called the oblations of the faithfull , but what things soever are offred to him by the faithfull , whether in sacrifices or in fields , vineyards , woods , medowes , waters , water-streams , artifices , books , utensils , stones , buildings , vestments , wools , garments , cattel , parchments , moveables and immoveables , or whatsoever , which of these things are made to the praise of god , or the supplement of the holy church of god , and his priests , and which may give ornament unto them , whether they be freely offered by any one to the lord and his church , are undoubtedly consecrated to the lord , and belong to the priests right . and because we truly acknowledge the lord and his church to be one person ; what ever things are the churches are christs ; and whatsoever is offered to the church , either in the aforesaid things , or in any other kinds , or by promises or pledges , or writings , or in corporal things are offered unto christ , and what thin●s by any devise are alienated or taken from his church , either by alienating , or by wasting , or invading , or by diminishing , or by rapine , are taken from christ . and if it be robbery to take any thing from a friend , it is sacrilege to take away , alienate , substract , or waste any thing especially from christ , who is king of kings and lord of lords . for all robbers of the church are most apparently sacrilegious persons , and no sacrilegious person , unlesse by pure , approved and publique repentance , and by satisfaction to the church , and by imposition of the bishops hands , and reconciliation according to the canonical sanctions , shall inherit the kingdom of god ; and shall not only be secluded the kingdom of god , but likewise be shut out of the limits of the church , especially of the church he hath ruined , and shall be excommunicated thence , until the foresaid satisfaction given . and the perpetrators of such wickednesses , ought to have no communion at all , either with the living or dead , till after such satisfaction given . because who ever violently takes away his neighbours money , commits iniquity , but sacrilegious persons are not only théeves , but likewise wolves and man-slayers and murderers of the poor , and accursed , damned persons before god and his saints . and if so , as these two pious emperors , by their lawes , with many a protestant writers ( as well as papists ) resolve ; and all sacrilegious persons , taking any vessel or vtensil out of a church , though of small value by our b own lawes too , as well as theirs , be sacrilegious persons worthy to suffer pains of death , as felons ; those who shall openly sacrilegiously rob , or attempt to rob and spoyl all the godly painfull ministers of our nation of all their tithes , rectories , glebes , churches and church-yards too at once , are doubtlesse sacrilegious persons in the highest degree , deserving to suffer a temporal infamous death and execution , ( better than any high-way theeves or robbers ) at tiburn , or to be eternally banished the nation , c excommunicated all christian society , and had in perpetual execration , for this sacrilegious rapine , both by god himself and all good men , unlesse they repent and make full publique restitution , satisfaction for this their detestable sacrilege . lastly , if any officers or souldiers pretend , we are now a conquered nation ; that conquest makes all sacred things , prophane and common to the conquerors ; and that churches may be justly spoyled of their materials , vessels , glebes , tithes , in such a case for the pay and benefit of the conquering souldiers , as d some affirm . therefore they may now justly deprive our ministers of their tithes , glebes , rectories , churches , church-yards , to pay , maintain themselves and the conquering army , yea alter , change our laws at present ; as they now attempt , and divers of them openly professe they intend to doe . i answer , . that the lords and commons , the very last parliament , when they first raised the army , in e their petition to the late king , sent to his excellency the earl of essex , to the army , and by him presented to his majestie sept. . . or soon after , used this expression . that the prevailing popish party with his majestie , who by many wicked plots and conspiracies have attempted the alteration of the true religion , and the antient government of the kingdom , the introducing of popish idolatry and superstition into the church , and tyranny and confusion into the state , and by corrupting his councels , abusing his power , and sudden and untimely dissolving of former parliaments , had often hindered the reformation and prevention of those mischiefs . and in prosecution of those wicked designs , had ( as the most mischievous and bloudy designe of all ) drawn his majestie to make war against his parliament and good subjects of this kingdom , and to lead in person an army against them ; as if he intended by conquest ( mark the word ) to establish an absolute and unlimited power over them . and in their f remonstrance nov. . . in reply to his majesties answer to their remonstrance of may . . they charge this as the last doctrin and position of the contrivers of his majesties answer ; that the representative body of the whole kingdom , is a faction of malignant , schismatical , and ambitious persons , whose designes is and alwaies hath béen to alter the whole frame of government both of church and state , and to subject both king and people to their own lawlesse arbitrary power and government , and that they design the ruine of his majesties person and of monarchy it self ; and consequently that they are traytors , and all the kingdom with them : ( for their act is the act of the whole kingdom ) and whether their punishment and ruine , may not also involve the whole kingdom in conclusion , ☜ and reduce it into the condition of a conquered nation ( mark the words ) no man can tell : but experience sheweth us ( as now it doth in good earnest more than ever ) that successe often carries men not only beyond their profession , but also many times beyond their first intentions . for an army , officers then , professing themselves true born english men , eminent godly saints , preservers of our nations liberties against regal tyranny and enchroachments , originally raysed , commissioned by both houses to protect our lawes , liberties , religion , church , government , parliament , nation , from an intended conquest by the late kings army ; to establish an absolute unlimited power over us , and from being reduced into the condition of a conquered nation , after the total routing of the kings army , power , now at last to plead , to averr , we are now a conquered nation ; in respect of themselves , and thereupon to endeavour to establish an absolute unlimited power over us , by altering the whole frame of government both in church and state , changing the body of our lawes yea antient constitution of our parliaments ; abolishing our very ministers rectories , tithes , dues , or diverting them to pay , maintain themselves ; yea now to act over the very self-same things , which both houses then charged upon the late beheaded king and his malignant popish councel ; thereby verifying these his predictions of their forementioned designs in every punctilio , ( then utterly disclaimed by both houses as the highest scandal to them , and their sincere loyal intentions ) and making him a truer prophet , than their new merlin , lilly ; will not be only most scandalous , dishonourable to them , but monstrous , treacherous , perfidious , if insisted on , or persisted in , both in the judgement of god , angels , men , and their own consciences too . wherefore i presume on second thoughts , they will disclaim this plea both in words and actions . ly . they were all raysed , waged , commissioned by the late parliament and well-affected people , not to fight against , conquer or subdue themselves , but to preserve them , their lawes , liberties , privileges , estates , our churches and religion against the common enemies and invaders of them . therefore they cannot stile themselves conquerors of tho●e persons , things they never fought against , but only for , unlesse they will now declare their secret intentions , were ever crosse and contradictory to their open commissions , vowes , covenants , protestations , words , and printed declarations to god and those that raised , waged them for their safety and defence alone ; and thereby proclaim themselves the greatest hypocrites under heaven , and therein as treacherous to their own native country and those who trusted them , as the a mamalukes of egypt , the pretorian soldiers of rome were to their lords and masters of old ; which i hope they will disclaim . ly . it is a resolved case by the law of nature , nations and war it self , as grotius proves at large , de jure belli l. . c. . sect . , , , &c. that things gained by conquest in a war , ought to redound not to the officers , souldiers , generals , who manage the war , but to the kingdom , nation whose servants they are , and both commission and pay them their wages , as the servants , apprentices gains redound to their masters coffers , not to them . qui sentit onus , sentire debet & commodum : being both a principle in the law of nature , reason , and in our common law too . hence b all the roman generals and military officers , brought all the silver , gold , treasures , spoyls of war into the publique treasury , putting none of it into their private purses ; and all the lands , countries they gat by conquest were the republiques only , which bore the charges of the war , not the victorious conquering generals or souldiers . therefore the officers and army being commissioned , raised only for , and constantly paied by the parliament , people , for the ends aforesaid , never warring on their own free cost ; what ever treasures , lands , powers , spoyls they have gained by their victories , conquests , are of right the parliaments , nations , peoples only , not their own ; therefore the parliament , nation , people cannot , must not be over-awed , used , reputed by them , as their meer conquered vassals , but as their soveraign lords , and true proprietors of all the territories , lands , treasures , powers they have gained by their conquests . ly . that conquest is no just or lawful title , was long since resolved by the greatest conqueror ever england yet bred , even our famous british conquering king arthur , in the greatest parliamentary councel ever yet held within this isle , whereat were present no lesse then . kings besides king arthur , and an innumerable company of princes , dukes , nobles , prelates of the british , and most other neighbor nations ; as geoffry monmouth , hist. regum brit. l. . c. , , , , , , , . records . all these , when lucius procurator of the roman republique , came to demand that antient tribute reserved by julius caesar from this isle of britain when first conquered by him , then in arrear ; and threatned to levy is by force of arms , if denied ; meeting together in a great councel or parliament specially assembled for that end : resolved , that the said rent pretended to be due to the romans from the britons , because caesar by reason of the britons divisions being invited hither with his forces , enforced them ( their countrie being then shaken with domestique troubles ) to submit themselves to him by force and violence ; could not in justice be demanded of them : because this tribute being gained in this manner was unjustly received . nihil enim quod vi & violentia acquiritur , iuste ab ullo possidetur qui violentiam intulit . for nothing which is gained by force and violence , is justly possessed by any who hath offered and done the violence . irrationabilem igitur causam praetendit , qua nos jure sibi tributarios esse arbitratur . therefore he pretends an irrational cause , whereby he supposeth we are of right tributaries unto him . and because he presumes to exact from us id quod injustum est , that which is unjust , by the like reason let us demand a tribute of rome from him ; and he who shall prove the stronger , let him carry away what he desires to have . for if because julius caesar and other roman kings heretofore conquered britain , he determines tribute is now due unto him for this cause : i now also think , that rome ought to render tribute unto me , because my ancestors heretofore got it by conquest : whereupon they all resolved to assist king arthur with their armes against this unrighteous tribute , and title to it by conquest ; and professed they would spend their lives in the quarrel . ipsa enim mors dulcis erit , dum enim in vindicando patres nostros in tuendo libertatem nostrant , in exaltando regem nostrum perpessi fuerimus . wherefore conquest now can certainly be no just , no lawfull plea , title for any of our officers or souldiers , which this greatest conqueror and this great councel so long since damned as unjust and irrational . to which i shall annex the resolution of our a noble king henry the d . and of all the bishops , abbots , peers , earls , barons of england assembled in a parliamentary general councel of the realm at westminster , an. . to determine a controversie between alfonso king of castile , and sancho king of navarre , concerning divers castles and territories in spain , won by war and conquest by sancho king of navarre from alfonso , whiles he was a pupil and orphan ; which they both submitted to their final determination , who having heard both parties , unanimously resolved ; that these castles and lands should be restored to alfonso , by king sancho , with all their bounds and appurtenances : quia per bellum violenter & injuste abstulisset : because he had violently and unjustly taken them away by war : which resolution was confirmed under the kings great seal , and sent unto these kings . therefore conquest alone can be no just , no legal saintlike right , title to any lands , possessions , powers ▪ violently , unjustly gotten , claimed by wars by our swordmen now , after these two antient famous parliamentary resolutions in point , even between foreign conquering princes , much lesse then between those native englishmen , who raised , waged our army and officers to defend , not conquer them in a meer intestine civil war. ly . ** william duke of normandy , edward the d , henry the th , edward the th , and henry the th , though they all came to the crown by the sword and conquest of their competitors , yet they never claimed the crown nor kingdom by conquest , but title only ; nor esteemed the english , irish , or welch a conquered nation , nor altered our antient government , laws , liberties , parliaments , or ministers tithes and maintenance , but confirmed them , as all our histories manifest in their lives , and statutes made by them in the beginning of their respective reigns attest , & i have a formerly proved in the case of william commonly stiled the conqueror , who ratified all our liberties , laws , customs , franchises presented to him upon oath , without the least alteration , diminution , or prevarication , to the peoples great content . yea , king henry the th . as placita coronae , rot . parl. h . n. . record ; did in the first parliament held by him after his conquest of richard the d . make this memorable declaration to his people , entred in that roll. that he claimed the realm and crown of england with all their members and appurtenances as right heir thereto by bloud , by descent , and by the right god had given him , through the ayd of his parents and friends for to recover the said realm , which realm was upon the point to be undone for want of government and abrogating of the laws and customs of the realm . and that it was not his will , that any should think , that he would by way of conquest disinherit any one of his heritage , franchise or other right which he ought to have , nor to out ( or deprive ) any man of that he had or should have by the good laws or customes of the realm ( all which he confirmed by a special act before h. . c. . ) but only those who were against his good purpose , and the common profit of the realm , and were guilty of all the evil come upon the realm , and were adjudged guilty thereof in that parliament , as sir william le scroop , sir henry green , and sir john bassy , whose lands only he would have by conquest , as forfeited by their treasons . whereupon the commons thanked the king , and praysed god that he had sent them such a king and governour . upon all which considerations , and the resolution of learned b grotius , with others quoted by him ; that by the very laws of war even those who are conquered by foreign enemies , ought to enjoy by permission of the conquerors , their own laws , liberties , magistrates , religion , and a share in their government , ( much more in such a civil war as ours , where the souldiers , generals can pretend no conquest over those who raised , waged them for their just defence against conquest , and invasion of their laws , liberties , government , magistrates , rights , privileges ) i hope those vaporing officers , souldiers who have formerly cried up , pleaded , practised this pretended title of conquest amongst us , and used many of their former masters , raisers , and the whole nation , more like to conquered enslaved people , than their fellow christian brethren and freeborn englishmen , who have paid them so well for all those services they imployed them in ; wi●l henceforth totally renounce this their false usurped injurious plea , title ; and no more persist under pretext thereof , to deprive our ministers , church , peers , parliaments , nation of their very native freedomes , liberties , franchises , rights , laws , government , lands , possessions , which they were purposely commissioned , waged , and by all sacred all civil obligations , trusts , oaths , vowes , protestations perpetually engaged to defend against the least violation or innovation , without their free and full consents in a due and lawfull parliament freely elected by them , not forcibly obtruded on them without their choise or privity . yea i trust they will be so just , so righteous towards me ( so great a sufferer by , under them only for discharging my conscience and bounden duty towards my god , our church and native country of england ) as no waies to be angry with me , or injurious towards me for this my new gospel plea ( interwoven with a legal and rational ) for the lawfulness and continuance of the antient setled maintenance and tithes of the ministers of the gospel , and the good old fundamental laws and liberties of the nation ; which their present busie endeavours to abolish , alter , subvert , beyond , yea against their trusts , commissions , callings , have necessitated me now to publish to the world , to preserve our church , state , ministry from new combustions and impendent ruine : but rather found a retreat from these their heady proceedings ( which i fear the jesuites with their confederates the anabaptists , have engaged them so deeply in , to work as well their own as the publick speedy ruine both of our church , religion , state , ministry , nation ) and excite them to use the self-same deportment , words to me ( who have no private design nor interest of my own or other mens in this my voluntary undertaking , but only the publique safety and weal as enraged david did once to abigail , when she diverted him from his rash , bloody resolution to destroy nabal and his family for a churlish answer returned to him for his kindness , sam. . , . now blessed be the lord god of israel which sent thee this day to meet me ; and blessed be thy advice , and blessed be thou which hast kept me this day from coming to shed bloud , and to avenge my self with my own hand : but if they shall by gods permission cast me again bound hand and foot into another fiery fornace for this my faithfull service , or not falling down and worshipping that golden ( or rather wooden ) image which they have or would now set up : i doubt not but that gracious god , who hath so miraculously preserved me in , delivered me out of so many (a) fiery trials and fornaces heretofore , will do the like again hereafter , and that in such a visible eminent manner , as shall enforce them at last to use those words unto me as nebuchadnezzar did unto shadrac , meshac , and abednego after their miraculous preservation in the midst of the fiery fornace into which the most valiant men of his army cast them bound by his unrighteous command , to their own immediat destruction by the flame , without the least hurt to them . dan. . . then nebuchadnezzar spake and said , blessed be the god of shadrac , meshac and abednego , who hath sent his angel , and delivered his servants that trusted in him , and have changed the kings word , and have yielded their bodies that they might not serve nor worship any god ( or idol ) except their own god. this being an undoubted truth , which i have ever hitherto found experimentally true from and in my former causelesse oppressors , ( whose erronious practices , vices i have reproved ) recorded by god himself and the wisest of all mortals . prov. . . he that rebuketh a man ( for his faults plainly ) shall afterwards find more favour , than he that flattereth ( him in them ) with the tongue . and that saying of the truth it self in such cases ( of difficulty and concernment to the reprover ) will ever prove an experimental verity , wherewith i shall conclude my plea , which i desire may be deeply engraven in the hearts , spirits of all timorous , base , unworthy christians , ( who dare neither speak nor write their consciences , nor discharge their duties in these times of danger , and will wrong both their consciences , country , posterity , yea shame their god , nation religion to save their estates , lives as they fondly conceit , when they will lose all with their souls to boot , by their base carnal fears ) math. . , , . luke . . if any man will come after me , let him deny himself , and take up his crosse and follow me . for whosoever will save ( or shall seek to save his life , so luke records it ) shall lose it ; ( and his tithes , lands , liberties with it ) and whosoever will lose his life for my sake shall find it . for what is a man profited if he shall gain the whole world and lose his own soul ? or what shall a man give in exchange for his soul ? i shall cloze up all with this notable passage of our own learned writer , john sarisbury against such religious hypocritical cistersian monks who in his age sought exemption from payment of tithes , and seised upon the ministers dues about the year . joannis sarisburiensis de nugis curialium l. . c. . de hypocritis , qui ambitionis labem falsae religionis imagine nituntur occultare — hi sunt qui potestatibus persuadentes ut propter vitia personarum , jure suo priventur ecclefiae . decimationes et primitias ecclessis subtrahunt , et ecclesias ipsas accipiunt de manu laicorum episcopis inconsultis . hi sunt qui praedia avita subtrahentes indigenis vicos & pagos redigunt in solitudinem & in suos usus vicina quaeque convertunt : ecclesias diruunt & ut in usus revocant seculares , quae domus orationis fuerat , aut efficitur stabulum pecoris , aut opilionis , aut ianificli officina . et ut se possunt plenius exhibere & charitatis implere manus ne decimas dent , apostolico privilegio muniuntur . miror tamen ut fidelium pace loquar , quidnam sit , quod decimas et iura aliena usurpare non erubescunt : inquient fortè , religiosi sumus : planè decimas solvere religionis pars est . et eas a deo populus duntaxat religionis ( solvere ) exigitur . hi adeo religiosi sunt quod in decimis vandis derogare possunt constitutioni divinae , & in eo licenter minus grati sunt gratiae dei quo eam amplioribus beneficiis éxperiuntur . finis . a postscript . it is storied of * canutus the th . the king of denmark , ( an eminent professor of piety , and religion , and great lover of justice ) that perceiving his subjects to stick at many things pertaining to christian religion , and not to conform to other christians throughout the world in laws and ceremonies , specially in the due payment of tithes to their ministers , he urged them out of religious piety , at ritu aliarum nationum christianam religionem profitentium , decimas sacerdotibus suis soluerent ; that after the custome of other nations professing christian religion they would pay tithes to their priests : remitting to them a great fine imposed on them for their rebellion and contempt , in refusing to accompany him in an expedition against the english , to induce them thereunto . but they being perswaded the contrary by his brother olaf , thereupon rose up in rebellion against him ( specially the northern jutes , frequently perfidious , whom he could never induce to pay tithes ) and pursuing him to othense , cruelly murdered this their just and pious king in the church of st. alban , anno . whom olaf succeeding , god presently sent such a great scarcity of corn and provision in denmark for . years space together , ( the intemperatenesse of the air blasting all their corn ) that many families , not only of the poorer , but richer and nobler sort died of famine , the people fighting with one another even for grasse to eat . at last the famin invading king olaf his court , he prayed to god ; that if he had conceived any anger against his subjects ( for not paying tithes and murdering their king ) he would satisfie his wrath upon him , not them ; and the same night , esurientem & parricidii paenitentem animam efflavit : he died of hunger , repenting of his paricide . o that all english tithe-oppugners , and regicides would seriously meditate on this memorable president of divine justice , upon such delinquents , and be brought to timely repentance thereby , to prevent the like national and personal judgements , upon our nation , themselves and their posterities . errata . courteous reader correct these mistakes and omissions of the presse , occasioned by the authors absence in the country . page . l. . if , r. of , p. . l. . r wagria . p. . l. . r. inservierat pietati , l. . r. wilfrid , p. . l. . these , those , p. . l. . decima , l. . . aliendis , alienandis , p. . l. . r. e. . c . l. . parliament , l. . sommoneri , p. . l. . heu licet quod eo , r. quod licet de , l. . dele , ut , l. . indulgere , r. inducere , l. . quamplurimum , p. . l. . superiors , p. . l. . lord god , p. . l. . form , r. former , l. . last , r. lasting , l. , . r. peril , reproach and slander of the gospel , l. . to , r. of , l. . bow down , p. . l. . who builded , l. . paris , r. parker , p. . l. . in egercituisse , r. his chaplain , p. . l. . . r. . p. . l. . they shall , p. . l. . balivis , l. bonis , l. . praestiterunt , p. . l. . dele siquis igitur insanus importunitate , p. . l. . dele li , p. . l. . more , r. none , l. . or , r. of , p. . l. . for , r. from , p. . l. . jure , r. pure , p. . l. . partimacensis , portiniacensis abbatem , nautire , r. majoris , l. . clamianensis , cluniacensis , p. . l. . . . l. . elegant supremam , r. eligant sepulturam , l. . iliburg , friburg , p. . l. . praemonstratensian , l. . abuse , l. . deformations , reservations , l. . at least , p. . l. . replain , r. mepham , l. . grand , p. . l. . oxenetius , opmerus , p. . l. . r. charge of the cure , p. . l. . in sales , l. , only , r. chiefly , p. . l. . fees , r. fines , l. . r. their families , p. . l. . of , r. or , p. . l. . as litigious , p. . l. . our , r. of , p. . l. . or unto , recorded both , l. . spoyls , r. soyl , p. . l. . requiring , r. inquiring , l. . spoyls , r. soyl , p. . l. . fere modum , r. propemodum , p. . l. . pugnavimus , p. . l. . inhabitances , r. inheritances , l. . people , r. priests , l. . dele or , p. . l. . if not , p. . l. . within us , p. . l. . dele of , p. . l. . thee , r. men , p. . l. : lucius , licinius , p. . l. . brought , r. bright , p. . l. . for , or , p. . l. . which , with , p. . l. . syms , syrus , p. . l. . proceed not , p. . l. . nicetas , l. . beyerlink . in the margin , p. . over against good space , l. . read , at least . years , as is evident by gen. . . c. . . . c. . , . p. . l. , . monasteries , p. . l. . r. . p. . l. . ivonis , p. , l. . saxonicorum , p. . l. , . ruffinus , p. . l. . am , um . an admonition to all protestants , ministers , lawyers , and others of whatever quality , within our three nations . be pleased to take notice , that as the new dissolved anti-parliamentary juncto at the beginning of their last session , and a little before their sodain dissolution ; did by their conscientious speaker , give the hearty thanks of the house and ( mock ) parliament , to the petitions of sundrie anabaptists , and other sectaries , ( headed by jesuites , and popish franciscan freers ) for their good affections , when they petitioned against tithes ; so the general council of officers of the army , usurping to themselves the soveraign legislative power and authority of the great ge●eral council and parliament of england , to evidence to the world , by whose counsels they are steered , whose designs they prosecute , and that they deserve to be canonized for saints by the pope of rome in his roman kalendar ; have voted down our ministers tithes , ( and therewith our ministry too ) and in their printed declaration october . p. . ( since this gospel plea was finished at the press ) declare to the world , that it is upon their spirits , and they earnestly desire , and shall endeavour , that a full and through reformation of the law may be effected ( by abolishing those lawes they were raised , waged , commissioned to defend , and suppressing lawyers and terms at westminster , if not innes of court ; as also , that a faithfull , godly , and painfull gospel-preaching ministry , may be encouraged and provided for , by some certain way , that may be lesse troublesem to them , and lesse vexations to the people than tithes ▪ ex cauda draconem . what debates , speeches many of our army-saints have lately had concerning the totall extirpation of tithes , ministers , law , lawyers , vniversities , corporations , several others can inform those whom it most concerns . whether saint johns description of the army of ( romish ) locusts , rev. . coming out of the smoak of the bottomless pit , who bad a king , or general over them , whose name is apollyon , that is to say , a destroyer ; be not a true character of our present army of saints , let all real english protestants judge , and what good cause they have to continue and pay them out of our quite exhausted bankrupt estates , to accomplish these good endeavours , after all their commissions nulled , expired , forfeited by their treacheries and rebellions against their old and new superiors ; faithfulness , loyalty , obedience in the most inferiour degree , to their old parliament , new protector , and anti-parliamentary juncto , ( * trees whose fruit is withered , twice dead , plucked up by the roots by them ) after all old protestations , covenants , & new commissions , ingagements , declarations , addresses to be true. faithfull , constant to them , and live and die with them , being such a capital crime in their general councils eyes , even in their own colonels , captains , souldiers ; as to demerit and incurr an unpardonable censure of utter cashiering out of the army , as traytors , enemies to , and apostates from the armies interest ; which is to be faithless , perfidious , treacherous to all superiors whatsoever : wit● in the vindication of . officers , come off from , and turned out of the army , in march , for their obedience to the old parl. the late cashiering of col. whaley , ingoldesby , goffe , and others for their fidelitie to richard , pr. & of col. okey , mosse , morley , and others , for their adhering to the dissolved juncto , though they drew not a sword , nor discharged one pistol in their defence ; which may be justly recompenced ere long by the common souldiers disobedience , treacherie , and infidelitie towards their present commanders , when they stand in most need of their assistance ; isa . . , . finis . notes, typically marginal, from the original text notes for div a -e isa . . . & . , mat. west . an. . p. . antiq. eccles . brit. p. , . psal . . . acts . . psal . . . thess . . . rom. . . psal . . , , . psal . . , , . cor. . , . cor. . , . job . . gen. . . dan. . . tim. . . dan. . , , &c. jonah . & . in my histriomastix , healths sicknesse , love-locks , cosens cosening devotions , breviate , quench-cole , memento , speech in parliament , & other books . jude . levit. . . tit. . . rom. . , . deut. . . neh . : psa . . , , to . & . . & . . jer. . , , &c. heb. . , . gen. . , levit. . . num. . . josh . . . & . . & . , to . psa . . . hos . . . zech. . . eccles . . . ezek. . , , . prov. . . rom. . . tim. . , , . rev. . , . psalm . , , , . psal . . acts . , to . see the beacon fired : and nicolas causins the jesuit's holy court ; printed at london . in folio . psal . . . isa . . & . . sam. . . psal . . , , , , . act. . . cor. . . psal . . , , , &c. psal . . . psal . . & . . notes for div a -e jer. . . & . . give it this title . isa . . . ezek. . . & . . magna carta of king henry the . and k. john. mat. paris hist . angl. p. . , . & h. . c. . . times since confirmed in parliam . isa . . . & . , . psa . . , . rev. . . jer. . . . a collection of ordinances , &c p. , . mat. . . gal. . . gen. . . heb. . , to . dr. griffith williams in his workes in folio p. . contrary to magna carta c. . . e. . c. , , . e. . c. . e. . c. . e. . c. . e. . c. . e. . c. . e. . c. , . h. . c. . h. . c. . h. . c. , . h. . c. . e. . c. . the petition of right caroli , and are ordinances for tithes & augmentations the kentish petition and others . maffaeus vegius & rabadenira ( both jesuits ) in vita ignatii loyolae , heylins microcosm , p. . this one of them affirmed lately to a friend of mine the false jew , newly printed , p. , , , , . dan. . . see mr. seldens history of tithes c. . p. , , . gen. . . heb. . . a collection of ordinances , p. , , , . june . & . . see oliver cromwells speech . sept. . p. , . mat . , , . exact collection , p. , to , , , , , , , , , , , , , , , , . a collection , p. , , , &c. , , , , , , , , , , , , , , , , , , . and elsewhere . exact collection p. . a collection p. , , , , . which i desire may be now seriously perused , together with my romes master-piece . luke . ▪ pet. . . psa . . , . psal . . . esth . . . eph. . & . . ●hilem . . tim. . . cor. . . tim . , . notes for div a -e (a) see spelmanni concil . tom. . p. , . . (b) thes . . (c) ezek. . . psal . . psal . . . proposition . * see huldrici zuinglii explanatio artic . . operū tom. . f. . benedicti aretii problemata , locus . de stipendiis ministrorum . d see dr. carltons tithes proved to be by divine right , & dr. burges , calvin and others on this text. * see huldrici zuinglii explanatio articuli . e deut. . . f tim. . , . tim. . , , , , , , , , . g heb. . . * gen. . . . c. . . c . . jud. . . isay . . (h) ps . . . prov. . ● ▪ (i) see cor. . , . & . , . * see nicephorus , zonaras , and grimston in the life of phocas : platina and bale in the life of pope gregory the . ‖ fox acts and monuments ▪ vol hist . de vita et obitu m. buce●i . k kings . , , . l see rom. . , , , . backing these reasons . * act. . . c. . . tim. . , . rom. . , . tim. . , . m tim. . ▪ . rev. . . & . & ● . . ps . . . a grotius de jure belli , l. . c. , , , . l. . c. , . gratian causa . qu. . o grotius de jure belli , l. . c. . sect . . p. . and elsewhere . nulla fides , pietasque viris qui castra sequuntur . lucan . hen. huntindon . hist . l. . p. . p isa . . , . jer. . , to . ch . . & throughout . ezek ch . . joel . . isa . . , . & . , , , & . , to . q sam . . acts . . r sam. . . & . . ſ chron. . , , , . & . , . & . , , , , . jam. . , , . joel . . . (t) magna carta c. , . e. . c. , . e. . c. , . e. . c. . e . c. . r. . c. . h. . c. . r. . c. . the petition of right caroli . (u) see rastals abridgement tenths and taxes , and statutes at large , acts for the clergies subsidies . the objections answered . object . . answ . object . . answ . x spelman . * car. c. . (y) see antiqu . ecclesiae brit. p. , to . hoveden annal. pars posterior . p , , . (z) see a vindication of sir will. lewes . a justification of the xi impeached members , and their answer to their charge , printed . object . . answ : object . . see mr. seldens history of tithes , c. . sect . . answ : * see mr. seldens history of tithes , ch . . . . . & littleton , tit. frank-almoign . * see rastals abridgement , tit. poor , & tithes . * history of tithes ch . . p. , . proposition . (z) rom. . , . a heb. . . b dr. bound , dr. twisse , mr. sprint , mr. bernard , mr. palmer , mr. caudry & others of the sabbath . mr. dod , clever , and others on the commandement . c gen. . . & . , . heb. . , . * see mr. seldens review of his history , ch . . sixtus senensis bibl. sanctae , l. . annot. , . d dr. griffith williams of the incarnation of christ , in his works in fol. p. , to . petrus cunaeus de repub. jud. l. . c : . (e) see hemingiu● on the place . (f) rom. . , , . & . . gal. . , , . , g cor. . , . tit. . . h see the late petitions against tithes . * see mr. john seldens history of tithes , c. , . & his review , c. . with the authors there cited . i the words of the solemn league and covenant . object . . answ . (k) purchas pilgrimage p. gerundensis and godwins jewish antiquities (l) see the ordinances for augmentations (m) act. . . neh. . . (n) sam . . chron. . . (o) sam. . . * history of tithes , & survey thereof , ch . . . * de tempore serm. . tom. a spelman . concil . p. . b ingulphi hist . p. , , . will. malmsb . de gestis regum angl. l. . p. . hen. huntindon hist . l. p. hoveden annal . pars prior . p. , . & pars posterior , p. , , . verstegan restitutiō of decayed antiquities , accord herein , and mat. westm . ann. . p. . c spelman . concil p. . d mr. cambdens britannia , p. . mr. seldens notes to eadmerus , p. . where the charter is recorded : and most of our historians in the life of k. william . speeds history , p. . e hoveden annalium pars posterior p. . . mr selden ad eadmerum notae , p. , , . spelman . concil . tom. . p. . ingulphi hist . p. . f hoveden , ib. p. seldeni ad eadmerum notae , p. . g hoveden ib. p. , . spelman concil . p. , . lambardi archaion . (h) royal tyranny discovered : a defiance against arbitrary usurpation . englands birth-right ; and many late pamphlets else . (i) will. malmesbury de gestis regum angl. l. . p. . &c. and naucl. speeds history p. . daniel in his life . object . answ . * see calvin and others on the place . * mr. seldens history of tithes and survey , ch . . object : . k fox acts & monuments vol. . p. . answer . l see hemingius & others on this place . * see walafridi strabi de rebus eccles . c. . m mat. . . luke . , to . joh. . . * john . , . mat. . , . * see his voyce from the temple p. . n exod. . , , . deut. . . o exod. . , , . c. . , . lev. . . num. . , . deut . , . levit. . . p dr. bound , dr. twisse , dr. white , and others , of the sabbath . bishop andrews , mr. downham mr. cleaver , mr. dod on the fourth commandement , and all other commentators on it . q his second voice from the temple . * decimas deo & sacerdotibus dei dandas , abraham factis , jacob promissis insinuat ; deinde lex statuit , & omnes doctores sancti commemorant walafridi strabi de rebus ecclesiasticus . c. . r rom. . . psal . . . isa . . . zeph. . . acts . . josh . . . isa . . . rom. . . chap. . . ſ in his sermon , april , . in defence of the honourable function of bishops . t in his pilgrimage , l. . c. . p. . the first edition . u kings : . kings . . x dr. usher . annales eccles . veteris testamenti . p. . y see the books of ezra and nehemiah . z heylins cosmography , p. . a see spelman . concil ingulphi historia : mat. westm . antiq. eccles . brit. m. seldens history of tithes , ch . . and our kings and others antient charters of donations to abbies and churches . * walafridi strabi de rebus eccles . ch , . * si non dederis mihi decimam , auferam novem , walafridi strabi de rebus eccles . c. . see calvin in mal. . augustin de tempore sermo . bochellus decret . ecclesiae gal. l. . tit. . c. , . * aug , serm. . walafridi strabi de rebus eccles . c. . synodus lingon . . bochellus decret . eccles . gall. l. . tit. . c. . * si dederis mihi decimas . multiplicabo novem : ideo ergo dandae sunt decimae , ut hac devotione deus placatus , largius praestet quae necessaria sunt walafridi strabi de rebus eccles . c. . augustin . sermo . . * see gulielmus stuckius antiqu. convivalium l. . c. . b hieron super ezech. josephus scaliger diatriba de decimis . drusius pro. ad mat. . purchas pilgrimage , l , . c. . m. seldens history of tithes gulielmus stuckius antiqu . convivalium l. . c. . * hebr. c . & . throughout . eph. . , . cor. . . * cl. . e. . m. . exact abridgement p. , . a brief register , kalendar , and survey of parliamentary writs . p. , , , , , , , , , , , , , . rastals taxes , and tenths . c comment . in thess . . . p. . * walafridi strabi de rebus eccles . ch . . * augustin . de temp. serm. . walafridi strabi de rebus eccles . c. . bochellus decreta eccles . gal. l. . tit. . c. . . * bochellus decret . eccles . gal. l. . tis. . c. . d dr. bound , mr. dod , cleaver , dr. twisse , downham , practice of piety and others * see gratian. cans . . qu. . walafridi strabi de rebus eccles . c. . e in his second voice from the temple to the higher powers , p. , , , . and elswhere . * ch . p. , , , , , . * vide zonar . in concil . gangr . can. . * clement in tit. de decimis , c. . religiosi . ‖ ad extrav . tit. de paroch . c. ult . significavit . * bochellus decret eccles . gall. l. . tit. . c. , , , , , . f chaplain to sir arthur haslerig 's regiment and garison heretofore . * see mr. seldens history of tithes , and review , ch . . a heb. . , . a page , . a joan. capgrave in vita josephi : chr. glastoniens . vincentius spec. hist . lib. . c. . with sundry others , cited by dr. usher britan. ecclesiarum antiquitates . c. . p. , spelman concil . p. , &c. with the authors quoted by them . b dr. vsher brit. eccles . antiq. spelmanni concil . p. . &c. with the authors quoted by them . a gildas , ep. vsher , brit. eccles . antiq. p. . spelmanni concil . p. . . b spelman . ib. p. , . de antiquitatibus eccles . brit. dr. vsher . ‖ malmsbury de gestis regum angl. l. . c. . mat. west . anno . florent . wigorniensis , an. . spelmanni concil . p. , . * spelmanni concil . p. . , , to . cent. magd. . cap. . * see augustin de temp. serm. . * in his second voice from the temple . * gen. . . * john canne , his second voice from the temple , p. . ‖ fox acts & monuments vol. . f. , , . * see augustin de temp. ser. . gratian caus . . qu. . † see the false jew discovered at newcastle for a cheat & jesuit p. , , , , , . dipped by m. tillam at hexam , a like priest , now administrator of the anabaptists there . and eliazer bar israel , his vindication of the messiah , a pretended converted jew , but sprinkled and baptized by the jesuits , dipped by our anabaptists , and a jesuit in truth . * john . . * eliz. c. . eliz. c . jac. c. , . jac. c. . car. the act for triennial parliaments . * eliz. c. : and book of ordination . * see antiqu. eccles . brit. spelmanni concil . bp. usher eccles . brit. antiqu. c. , , . &c. beda eccles . hist . * see rastals abridgment , tit. provision , premunire , rome , crown , service and sacraments , mr. fox acts and monuments . bishop jewels apology . * see mr. seldens history of tithes , c. , , , , . bochellus decr. eccles . gal. l . . tit. . de decimis . * this was penned at swainswick in the long vacation . * see dr. tillessee his animadversions on mr. seldens history of tithes , where most of the fathers & antients are cited at large . a bochellus decret . eccles . gal. . tit. . c. . p. . b edicts & ordenances , tom. . p. . c thomas waldensis doctr●nalis fidei l. . artic . . c. , . ‖ operum tom. . tiguri . . f. . * operum tom. . f. . b. * spelman . conc tom . . p. , , , , , , , . gulielmi lambardi archalon . ‖ seldens history of tithes c. . p. object . a see gratian caus . . qu. . answ . a luke . , . rev. . . isa . . , . jer. . . c. . . c. . , , . ezech. . , . b gen. . . deut. . . sam. . , to . kings . . c . . c. . . c. . , . ps . . , , , to . ps . . , , . chro. . , , . c. . . c. . . c. . . c. . . c. . . jer. . , , . c. . , . c. . , . c sam. . . chro. . . kings . , . c. . . c. . . isa . . . c. . . * see rom. . . ‖ rev. . , . ‖ levit. . , , . numb . . , , . * see my quakers unmasked , and new discovery of romish emissaries notes for div a -e a acts . b matth. . . c. . . c. . . c. . , , . rom. . . rev . . c see iohn cannes epistle , before his second voyce ( nor ) from ( but against ) the temple , and many late petitions against tithes , from kent , somersetshire , wiltshite , and other places . d e. . c. . ( see cook ibidem ) h. . c. . h. . c. . h. . c. . h. . c. . h. . c. . h. . c. . h. . c. . h . c. . h. . c. . cook instit . c. . e sam. . , c. . cl . e. . m. . dors . . brook parliament , , customs . & . grotius de jure belli , & pacis , l. . c. . sect . . c. sect . to . c. . sect . . h. . c. . * in my quakers unmasked , . and new dscovery of romish-emissaries . * see my true and perfect narrative , p. . . . . , , , · * from somersetshire wilshire and other places . (f) de republica hebraeorum l. . c. . (g) of the incarnation of the word . part. . branch . . ch . . in his workes in folio . london . . p. . to . (h) ephes . . , . c. . . , . c. . . col. . . c. . . . hebr. . . to . psal . . . . isa . . , . rev. . , . (i) rom. . . to . mat. . . luke . . , , . acts. . . rom. . , . gal. . . to the end . (k) see dr. solaters ministers portions p. . to . (l) see hebr. c. . to c. . john . , . ps . . . dr. jones , and others on the hebrewes ; dr. reynolds on psal . . . (m) acts . . c. . to . c. . , , . c. . . to c. . . c. · . rom. . . c. . , , . . c. . . to . c. . . eph. . , , , . col. . . tim. . ; compared with mat. . luke . . . isay . . . c. . . to . c. . . . c. . . c. . . , &c. ephes . . , , . (n) cor. . . eph. . . hebr. . to ch . . john . , . , . o the kentish petition , john cannes voice , mt. speed and many late quakers rayling pamphlets . p cor. . . acts . , to . tim. . , , . heb. , . cor. . . c. . . gal. . . q gen. . , , . john . . heb. . , to . compared with john . , . r see gratian caus . . qu. . & surius , binius , crab , merlin , in their council● . ſ hermoldus hist , slarorum , l. . c . edit . franc. . p. . t history of tithes , p. . u see purchas pilgrimage , edit . . p. , , , . joan. leo africae descript . l. . x arnobius adversus gentes , l. . cato de re rustica , c. . mr. seldens history of tithes , p. , . mountagues diatribae , ch . . y pliny nat. hist . l. . c. . seldens history of tithes , p. , . mountagues diatribae , p. , . z dionysius hallicarn : antiqu . rom. l. . seldens review , p. . a bibliotheca hist . l. . justin . l. . mountagues diatribae , p. , . b see his orations against them : and mountagues diatribae , p. , . xenophon de expedit . cyri , lib. . p. . , . richard mountague his diatribae , c. . p. , . * xenophon , hist . grae● ▪ l. . p. . * oratio de ag●silao rege . p. . c de gestis regum anglorum , l. . c. . p. . d ecclesiast . hist . gentis angiorum , l. . c. . e cor. . , . f psal . . . psal . . . psal . . . chron. . , , , . g psalm . gen. . , , . c. . . h exod. . . i exod. . . levit. . k see doctor sclaters ministers portion , p. , &c. l luk. . , . c. . , , . mat. . , . rev. . . c . . c . . c. . , ● , . mat. . . cor. . . heb. . , . m purchas pilgrimage , p. . . . . the writers of these several nations , realms and republikes , printed in . n rom. . ●● o origen , hom in num. c . ambrose , serm. . fer. & augustin , serm. . jerom , in mal. . p matiscon : . can. . moguntiense . an. . & . & . concil . lateran . c. . ticmense sub leone . londinense : . joan : in gratian . surius , hoveden . q extravag . de decimis . c. , , , . r see mr. seldens history of tithes , c. , , , . bochellus , decret . eccles . gall. l. . tit. . dr. tillesleys animadversions , p. . to . ſ in his voyce . t see spelmanni concil : antiqu. eccles . brit. dr. usher de rerum britanicarum primordiis . v see e. . c. . e. . c. . cooks . instit . p. , , , &c. & the petition of right . car. x see lucas osiander , enchirid . contr. cum anabaptistis . harmony of confessions , sect. . of the civil magistrate . my swo●d of christian magistracy supported . y john . . c. . , . eph. . , . c. . . to the end , c. . to . c. . , to . iohn . . . to . cant. . . ezech. . , to . rom. . , . eph. . . cor. . . c. . , . col. . . hebr. . , . isay . , to . z mal. . . iam. . . hebr. . . c. . . tim. . , . psal . . , . a rom. . . b gal. . . gen. . . hebr. . . c thess . . , . d see sclaters ministers porportion , p. , , , where he proves this by their parallel . a r. . c. . ● r. . stat. . c. . r. c. . h . c. . h. . c. . h. c. . h. . c. . h. . c. . h. . c. . h . c. . h. . c. . h. . c. . h. . c. . h . c. . car. the act for triennial parliaments , cooks instit . p. , . & instit . p. . , , , , . * cor. . . a sam. . . b heb. . . a rom. . . b cor. . . gal. . . ephes . . . pet. . . c john . . d matth. . . rom. . . a isay . . micha . . . b psal . , , . tim. . . c psal . . . ps . . . rev. . . iohn . . zech. . . a capgrave in vita iosephi , will. malmesbury de antiqu . glastoniensis ecclesiae , spelman . concil . epist . dedicatoria , & p. . to . dr. vsher ecclesiae brit. antiquitates : c. . godwin , mathew parker , speed , and sundry others . b antiqu. ecclesiae , brit. fox acts and monuments , spelman . concil . p. . &c. dr. vsher eccles . brit. antiqu. c. , , . c ad an. . roger wendever ad an. . dr. usher eccles brit. antiqu. p , , . galfridus monmuniensis , l. . c. . edit . hidelberg . a matth. westm . graston● holinshed , fox and speed. b matth. westm . an. . dr. vsher eccles . brit. antiqu. c. . speeds history p. , &c. baronius , an. . n. . c eusebius , eutropius , zonaras , grimston , speed , and others in his life , fox acts and monuments , vol. . a eusebius de vita constantini , gildas , matth. westm . an. , to . speeds history , p. , . spelman . concil . p. . dr. usher eccles . brit. antiqu . c. . throughout , a asser and others in his life . spelman in his epistle ded. to his councils . b cambd●ns britannia , oxfordshire . a spelmanni concil . p . a cambdens brit. & heylins microcosm , p. . b de jure belli , l. . c. . sect. , , . & annotata . a capgrave in prologo ad vitas sanctorum , spelmanni concil . in epist . ded. & p. . a antiqu. eccles . brit. in the life of cranmer , fox , speed , hall , grimston in h . & statut. rastal manassenas , rome . b mr. cambdens britania , spelman and others . a pilgrimage , l. . c. . p. . b fox acts & monuments , and others in his life , and the statutes in his reign . c e. . c. . d speed , how , baker , cambden in her life , and the printed statutes in her reign : antiqu. eccles . brit. in the life of mathew parker , godwins catalogue of bishops in her time . a ezech. , . b mr. seldens history of tithes , ch . . a hist . angliae tiguri , . p. , , , , &c. b see sir edward cooks preface to his . instit . on magna charta . c see matth. paris , hist . angl. p , , , , . , . the statutes at large , an. e. . after confirmatio chart●rum . n. b. a epist . . & bochellus decret . eccles . gal. p. . bibl. patrum , tom. . pars. . p. , . a cooks report . the bishop of winchesters case . b fredericus lindebrogus codex legum antiqu. p. . a rerum vngaricatum scriptores bonfinius , & nicholas isthuansis in vita sancti stephani . sancti stephani regis decretum secundum , c. . status regni hungariae , p. . cor. . . a see page , , , , , , , , , , , , , , , , , . b ioan. leo. geographical description of africa , l. . c pilgrimage , l. . c. . p. . d microcosm , p. , , . a ps . . , . a as appears by their late petitions , and iohn cannes voyce . a exact collection , p. . &c. a isay . . a matth. . , . luke . . c. . . b 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . mr. seldens review , p. . c eccles . hist . l. . c. . l. . c. , . l. . c. . fox acts and monuments . vol. . a apologet. c. . b ambrose offic. l. . c. . fox acts and monuments , vol. . p. , . c pr. steph. hym. . a operum , p. . b matth. . . object . . answ . a see my legal vindication against illegal taxes , and humble remonstrance against ship-mony . object . . answ . a hierom. super ezech. l. . ad cap. . josephus antiqu . jud. l. . c. . chrysostom hom. . in ephes . serm. . sir james semple sacriledge sacredly handled . joseph scaliger diatr . de decimis . mr. seldens history of tithes , and review , c. . purchas pilgrimage , l. . c. . richard mountague diatribae on mr. seldens history of tithes , c. . & dr. tillesley and mr. nettles ibidem . dr. solaters ministers portion , p. . a p. , , , , , , , , , , , , , , , . and elsewhere . dr. tillesley his animadversions on mr. selden , c. , , . littleton , chap. . f●ankalmoign and cooks institutes thereon : petrus damianus , l. . epist . . vt copiosiora in paupere● alimenta perficiant , dantur in monasteriis & eremitis decimae quorumcumque proventuum , &c. a see mr. seldens history of tithes , c. . sect . . p. , , &c , b innocent . epist . decret . l. . p. . l. . p. . extrav . tit. de decimis , c. . ex multis . a ad extr. ti● . de parach . c. ult . mr. seldens history of tithes , p. , . b doctrinal . fidei tom. . l. . artic. . c. , . a epist . . object . b e. . f. . e. . f. . h. . f. . . dyer . . cook report , f. . b. c voyce , p. . d surius concil . tom. . p. . a see rastals abridgement , title tithes , and the ordinances for tithes . lindwood , provinc . constit . l. . tit. de decimis . mr. seldens history of tithes , ch . . b see mr. seldens history of tithes , p. , , , , . c hoveden annal. pars posterior , p. . lindwood , provinc . constit . l. . tit. de decimis . d thess . . . a hist . angl. p. . b history of tithes , ch . . p. , . a hist . l. , . dr. usher annales eccles . veteris testam p. , . b voyce from the temple , epist . ded. & p. . if they were razed to the ground it wovld do well. c psal . . , . a as is evident by compa●ing it with isay . , , . c. . , to . c. . , to . jer. . , to the end . proposition . a the kentish petition against tithes , john canne , voyce from the temple , and others . b mal. . , . a matthew westm . & florentius wigorniensis . an. . see my humble remonstrance against ship-money p. , , . b spelman . concil . . a cooks d . report , the bishop of winchesters case . summa angelica . tit. decima . a for which there is suffient allowance given in case of mere heath and baren grounds by the stat. or e. . c. . b see augustine , serm. . mal. . , , , . a cottoni ●osthuma , p. , . the acts of resumption , h. . , . e. . . r. . . h. . h. . , . h. . . h. . , . e. . a britan. p. , . purchas pilgrimage , p. . a tim. . . b sermo . . tom. . c causa . qu. . d decret . eccles . gall. l. . t●● . c. . ● ▪ a suidas in leone . b a thing formerly proposed by them in their agreement of the people , presented to the commons house , jan. . . p. . a deut. . , . neh. . , . chro. . , , , , . purchase pilgrimage . l. . c. . p. , . object . a this objection i finde recited in the council of lingon anno . & there answered . bochellus decret . eccles . gall. p. . answ . a see the levelers new printed paper intituled , englands fundamentall laws and liberties claimed , &c. and many petitions of late . b see all acts for tonnage poundage and impositions , mr. hackwels argument against impositions , cooks . instit . p. , , to . b mal. . , , , . see augustine sermo . . a gul. malmesburiensis , de gestis regum angl. l. . c. . juocus chron. in carolo simplici . cent. magd. . c. . & . dr. tillesly in his animadversions on mr. seldens history of tithes , p. , to . b tom. . p. . c review , p. . a extravag . de decimis , c. . joannes sarisbur . de nugis curialium , l. . c. . mr. seldens history of tithes , c. . p. , . b cannes d . voyce from the temple , p. , &c. c pet. . , . d rev. . . a gal. . . cor. . , , . b gen. . . hebr. . , , &c. c chron. . , , . a herodotus , l. . c. . valerius maximus , l. . c. . diodorus , an. . olymp. . dr. vsher annales veteris testamenti , p. . b see holinshed , speed , and others . , & r. . mr. st. johns speech against the shipmony-judges . a gul. malmesburi . de gestis regum , l. . c. . vita eucherii apud surium , tom. . . f. gratian , caus . . qu. . edit . gregoriana . flodourdus rhem. hist . l. . c. . juonis chron. mr. seldens history of tithes , p. . . dr. tillesley , p. . * mat. 〈…〉 flores 〈…〉 an. . ● . . * bibliotheca patrum , tom. . pars . p. , . a aventinus , annal. boyorum , l. . p. . centur. magd. . c. , & . goldastus constit . imp. tom. . p. . dr. tillesley animadversions on mr. selden , p. , to . a exact collection . p. , , , , , , , . a collection , p. , , , , , , , , , , , , , , . appendix p. . and elsewhere . a luke . . a ambros . orat. in julianum , & grotius de jure belli , p. , . b grotius de jure belli , l. . c. . sect . . p. , , . crantzius saxonitorum , l. . c. . a exttavag . de decimis , c. mr. seldens history p. , . b see the book of judges , kings , chron. maccabes , josephus , paul eber and others . c antiqu. ecclesiae brit. p. , to , , , , . thomas walsingham . hist angl p. . see the acts for the clergies subsidies in all our kings reigns , granted only by themselves in convocation . d xenophon helien l. . mountague diatriba p. , . e lib. . epist . . f in his exposition on thess . . p. . a thess . . b see dr. abbot , dr. beard , dr. squire of antichrist , and dr. sclater on that place . c luke . . d luke . , to . b matth. c. , & , & . mar. , & . luk. , . john , & . a acts . , to . b acts . , , , &c. c. . , &c. c. . , &c. to . c. , & . c matth. . . luk. , . d tim. . . e hebr. . . a rev. . . pet. . , . a see col. prides beacon quenched . a titus , . . b pet. . , . acts . . c thess . . a mat. . . b eutropius , grimston in his life , theodoret , nicephorus , l. . c. , , , , , , . mr. fox , baronius , spondanus , and others . centur. magd. . c. , . col. , to , , . nazianzen orat. . in julianum , ambros . epist . l. . ep. . zozomen l. . c. . rushamus , l. . c. . c eusebius , eccles . hist . l. . c. . l. . c. . eutropius , and grimston in his life . fox acts and monuments , vol. . p. . bishop jewels sermons , p. d see eusebius in vita constantini : bacons advancement of learning : mr. edward waterhouse his apology for learning and learned men . a asser menevensis in his life , camdens britannia : oxford universitie and cambridge . b suidas in leone . c charion . chron. l. . alexander severus . note b hoveden , annal. pars post . p. . mr. selde● , ad eadmerum notae , p. . * see peter martyr , in lib. . regum commen● . c. . p. . a see mr. seldens history of tithes . * see john cannes voyce p. . mr. edwards gangrenaes , and lillyes ephemeris , . a quid nor mortalia pec●ora cogit auri sacra . fames . a in my fresh discovery of new lights . b rev. . . c is this christian gospel charity consistent with mat. . , to . c. . , . rom. . , , , , . c. . , , , . ephes . . . cor. . , , , &c. john . , to . c. . . , . c. . , . a sleiden● commentaries , l. , & . see my sword of christian magistracy supported , p. , , &c. b see speeds history of great bri●ain , stow , holmshed , and the survey of london . a speeds history of great britain . the arraignment of traytors , jac. c. , , , . a h●story of tithes , p. , , , , to , ● , . b de nugis cu●ialium , l. . c. . a ms. and dr. tillesley his anmadversions upon mr. seldens preface . animadv . . d mat. ● . , to . a since the army-officers in . declared in print against ministers tithes ; these prognosticators guided by these all-ruling martial earthly planets , not the heavenly stars , have predicted their downfall every year , but not before . a for the year . b since that in , and . he continues in the same strain . a matth. . . b rev. . . iohn . , . c epistle to the reader , p. . and astrological discourse in it towards the end . a in the epistle , astrological predictions , and monthly observations . a epistle to the reader in his ephemeris , , and . a cap. , & ● . worthy our most setious perusal . b ibid. p. , , , , , . which art lilly much promotes . see his ephemeris , , . a surius concil . tom. . p. . b a manifestation of the folly and bad spirit of certain in england calling themselves secular priests , p. . c rastals abridgement of statutes , tit. durham . a see watsons quod●ibets , p. , , . parsons his manifestation , fol. . william watsons reply to parsons libel , fol. . a the impropriations held by them were much more than the d. part of all the parish churches of england divided into parts , and of greater value than the other parts in priests and ministers hands . a page , to , , . a in. lib. regum c. . f. . b see . & . phil. & mar. c. . mar. sess . . c. . fox acts and monuments vol. . b gratian caus . . qu. , & . c see r. . rot . parl. n. . h. n. , , . h. . n , , . h. . n. . h. . n. . h. . n. . ● edw. . ● . n. . . . n. . h. . c. . h. . c. . with those resumptions in former ages , recorded in daniels history and others . d see canterburies doom , n. , , &c. b the levellers late printed fundamental lawes and liberties . n. , , , . a speeds hist . p. , &c. , , , . sleidens comment . l. . c. . b tim. . . eccles . . . a see nicephorus eccles . hist . l. . gent. magd. . c. . . b amos . . c ante haec s●c existimatum est , speciosa struere sapientum esse , & civilis vitae scientium ; structa demolire , stultorum & vecordis animi signa ad posteros transmittere , non erubescentiam : procopius gothico●ii . l. . grotius de jure belli . p. . d de beneficiis p. . e gratian caus . . qu. . summa angelica & rosella , tit. sacrilegium . f fredericus lindebrogus codex legū antiquarum . p. , a fredericus lindebrogus codex legum antiquarum p. , . b fredericus lindebrogus ibid. p. , . bochellus decret . eccles . gal. l. . tit. . p. . a sr. james semple sacrilege sacred●y handled . sir henry spelman de non temerandis ecclesiis . mr. seldens review . dr. sclaters ministers portion . summa angelica , rosella & tho. zerula tit. sacrilegium : with many more . b see we is presidents , indictments and offences . sect , . p. , . e. . c. c articuli cleri . e. . c. . object . d grotius de jure belli . l. . c. . answ . e exact collection p. . . f exact collection p. . a purchas pilgrimage l. c. , . heylins microcosm p. , , , , , . b lipsius de triumphis , heylins cosmography and others . a hoveden annal pars posterior p. , to . math. paris hist . angl. p. . ** see sr. john davis reports f. , , . a page , . hoveden annal . pars posterior , p. , , &c. b de jure belli . l. . c. . sect . , , . & annotata , p. , , . (a) pet. . . notes for div a -e * descriptio daniae , . p. . historia compendiosa daniae p. , . saxogrammaticus , pontanus and others in the life of canutus and olavus . notes for div a -e * jude . the case of edward bushel, john hammond, charles milson and john baily, citizens and free-men of london, stated and humbly presented to the honourable house of commons assemb'ed in parliament approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing b estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the case of edward bushel, john hammond, charles milson and john baily, citizens and free-men of london, stated and humbly presented to the honourable house of commons assemb'ed in parliament bushel, edward. broadside. s.n., [london? : ?] reproduction of original in the british library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng duress (law) -- england. law -- england. great britain -- history -- charles ii, - . - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - derek lee sampled and proofread - derek lee text and markup reviewed and edited - pfs batch review (qc) and xml conversion the case of edward bushel , john hammond , charles milson and john baily , citizens and free-men of london , stated , and humbly presented to the honourable house of commons assembled in parliament . that they with eight others , being empannelled and sworn of a jury , for tryal of divers persons indicted for several criminal and capital offences , at the sessions of the peace for the goal-delivery , held at the old-baily for the said city , in august , . before sr. samuel starling , then lord mayor of london , and sr. john howel serjeant at law , recorder , and other justices there , were ( amongst other prisoners ) charged with william penn , and william mead. and the said jury having heard and considered the evidence against the said penn and mead , could not find them guilty of the indictment ; thereupon they were threatned and menaced by the said mayor and recorder to be carted , and marks to be set upon them , to have their throats and noses cut , and be shut up close prisoners , and starved to death , unless they would comply : the recorder adding thereunto , that he highly applauded the prudence & pollicy of spain in erecting the inquisition , and that it would never be well in england , till some such course were taken here . pursuant to which threats , the jury by their order were presently shut up , with express command they should neither have meat , drink , fire nor candles , which was observed to that extremity , that they continued in this imprisonment , saturday , sunday , and munday , the said mayor and recorder adjurning the court from day to day , supposing , that the jury in time , rather then endure such heavy pressures , would force their consciences and comply with them . but all this illegal and barbarous usage proving in effectual ; after the said jury had with unanimous consent brought in their verdict , finding the said prisoners not guilty , which verdict notwithstanding the said court did accept and record , yet the said lord mayor and recorder fined every of the jury men forty marks a piece , and committed them prisoners to new-gate till payment ( of whom eight paid their fines and were soon discharged . ) and the said four jurors being merchants and trades-men of london , after they had been kept close prisoners about three months , to their very great dammage , rather then to betray the liberties of the country , were inforced to their extraordinary charge to sue out their habeas corpus in the court of common-pleas , which court upon return of the causes of commitment , and after several arguments as well there , as before all the judges of england , consulted in this matter , occasioned by the great opposition of the said lord mayor and recorder , did resolve and declare according to the unanimous opinion of all the said judges , that they , the said four jurors , were illegally imprisoned and unjustly fined ; and thereupon discharged them from their imprisonments and fines . all which unjustifiable proceedings by the said lord mayor and recorder were done after , and in contempt of that memorable vote of this honourable house of commons , made in the case of the late lord chief justice keeling , the th december , . declaring , that the presedents and and practice of fining or imprisoning jurors for verdicts was illegal . and for that they , the said four jurors do humbly apprehend it may be of dangerous consequence for any inferiour judicature , who are only to declare the law made , to assume to themselves an arbitrary power of innovating and altering the same , especially , when it doth tend to the violation and overthrow of the antient and fundamental laws of the land , consisting in nothing more then in the liberty the subjects have in the freedom of tryals by their peers . and forasmuch as the said jurors have not only been great sufferers in their persons and estates by the said arbitrary and illegal imprisonment ; but they do also humbly conceive it hath been and still is of very evil consequence to the lives , liberties and estates of his majesties subjects ; for such persons ( who have acted thus arbitrarily , directly contrary to and in defiance of , not only the laws of the land ; but also of the fore-said votes of the house of commons ) to be still continued in places of so great trust and authority , as recorder , justices of peace and aldermen of the city of london , to the great terror and discouragement of all jurors in the performance of their duty . and forasmuch , as they the said jurors are discouraged by their counsel to seek remedy or satisfaction in the courts of westminster-hall for these so great oppressions , the reason alleadged , for that all the said acts were done by the said mayor and recorder in a court of judicature , against which no action can be brought : so that they are like to be left remidiless , unless relieved by this honourable house , unto whose protection they do most humbly fly , and beseech their justice for their relief . the interpreter: or booke containing the signification of vvords wherein is set foorth the true meaning of all, or the most part of such words and termes, as are mentioned in the lawe vvriters, or statutes of this victorious and renowned kingdome, requiring any exposition or interpretation. ... collected by iohn cowell ... cowell, john, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the interpreter: or booke containing the signification of vvords wherein is set foorth the true meaning of all, or the most part of such words and termes, as are mentioned in the lawe vvriters, or statutes of this victorious and renowned kingdome, requiring any exposition or interpretation. ... collected by iohn cowell ... cowell, john, - . 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characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- great britain -- dictionaries -- early works to . - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion the interpreter : or booke containing the signification of words : wherein is set foorth the true meaning of all , or the most part of such words and termes , as are mentioned in the lawe vvriters , or statutes of this victorious and renowned kingdome , requiring any exposition or interpretation . a worke not onely profitable , but necessary for such as desire throughly to be instructed in the knowledge of our lawes , statutes , or other antiquities . collected by iohn cowell doctor , and the kings maiesties professour of the ciuill law in the vniuersitie of cambridge . in legum obscuritate captio . hinc lvcem et pocvla sacra alma mater cantabriga printer's or publisher's device at cambridge printed by iohn legate . anno . collegium iesu cantabrigiense to the most reuerend father in god , his especiall good lord , the lord archbishop of canterburie , primate and metropolitan of all england , and one of his malesties most honourable priuy councell . after long deliberation , i hardly induced my selfe to craue your gracious protection toward this simple worke : valewing it at so lowe a price , as i thinke it hardly woorth the respect of any graue man , much lesse the fauourable aspect of so honorable a personage . yet the remembrance of those your fatherly prouocations , whereby ; at my comming to your grace from the vniuersitie , you first put me vpon these studies , at the last by a kind of necessitie inforced me to this attempt : because i could not see how well to auoide it , but by aduenturing the hatefull note of vnthankfulnesse . for i cannot without dissimulation , but confesse my selfe perswaded , that this poore pamphlet may proue profitable to the young students of both lawes , to whose aduancement that way , i haue of late addicted mine indeuours : else were i more then madde to offer it to the world : and to offer it without mention of him , that by occasioning of this good , more or lesse , deserueth the prime thankes , were to proue my selfe vnworthie of so graue advice . and therefore howsoeuer i accompt this too much boldnesse in respect of the subiect yet could i be exceedingly glad , it might please your grace to ascribe mine intention to the integrity of my duty . for he that meaneth truly wel , & cannot perform much : must needes reioyce at the good acceptance of that litle which he ●erformeth . all i craue for 〈◊〉 at your graces hands , is patience and pardon for this enterprise , with the continuance of those your many fauours , that hitherto to inygreat comfort i haue enioyed . and so my long obseruation of your iudicious disposition , hauing caught me , what small delight you take in affected complements and verball commendation , without more words , in all true humblenes , i beseech the almighty long to continue your grace in health and prospetitie , to his glorie , and the good of his church . your graces at all commaundment , io. cowell . to the readers . gentle readers , i heere offer my selfe to your censures , vvith no other desire , then by you to be admonished of my faults . for though i doe professe the amplifying of their vvorkes , that haue gone before me in this kinde , and haue both gathered at home , and brought from abroade some ornaments for the better embellishing of our english lavves : yet am i neither so vaine , as to denie mine imperfections , nor so passionate , as to be offended at your charitable reformation . nay , my true ende is the advauncement of knovvledge ; and therefore haue i published this poore vvorke , not onely to impart the good thereof to those young ones that vvant it : but also to dravve from the learned the supply of my defects : and so by degrees , if not my selfe to finish this modell , yet at the least , by the heate of emulation to incense some skilfuller architect thereunto . yea , i shall thinke my paines sufficiently recompensed , if they may be found but vvorthy to stirre vp one learned man to amend mine errours . the ciuilians of other nations , haue by their mutuall industries raised this 〈◊〉 of worke in their profession , to an inexpected excellencie . i haue seene many of them that haue bestowed very profitable and commendable paines therin and lastly one caluinus a doctor of heidelberge , like a laborious bee , hath gathered from all the former , the best iuyce of their flowers , and made vp a hiue full of delectable honie . and by this example would i gladly incite the le arned in our common lawes and antiquities of england , yet to lend their aduice to the gayning of some comfortable lights & prospects toward the beautifying of this auncient palace , that hitherto hath bene accoumpted ( howsoeuer substantiall ) yet but darke and melancholy . whosoeuer will charge these my trauiles with many 〈…〉 sights , he shall neede no solemne paines to prooue them . for i will easily confesse them . and , vpon my view taken of this booke sithence the impression , i dare assure them that shall obserue most faults therein , that i by gleaning after him , will gather as many omitted by him , as he shall shew committed by me . but i learned long sithence out of famous tullie ; that as no mans errours ought to be folowed , because he sayeth some things well : so that which a man saith well , is not to be reiected , because he hath some errours . no man , no booke is voide of imperfections . and therefore reprehend who will , in gods name : that is , with svveetnes , and vvithout reproche . so shall he reape hartie thankes at my hands : and by true imitation of the most iudicious that euer vvrote , more soundly helpe on this pointe of learning to perfection in a fevve monethes , then i by tossing and tumbling my bookes at home , could possibly haue done in many yeares . experience hath taught me this in mine institutes lately set forth : by publishing vvhereof i haue gained the iudicious obseruations of diuers learned gentlemen vpon them , vvhich by keeping them priuate i could neuer haue procured . by vvhich meanes i hope one day to commend them to you againe in a more exact puritie , and so leaue them to future times for such acceptance , as it shall please god to giue them . i haue in some tovvardnes a tract ( de regulis iuris ) vvherein my intent is , by collating the cases of both lavves , to shevve , that they both be raised of one foundation , and differ more in language and termes then in substance , and therefore vvere they reduced to one methode ( as they easily might ) to be attained ( in a maner ) vvith all one paines . but my time imparted to these studies , being but stolne from mine emploiments of greater necessitie , i cannot make the hast i desire , or perhaps that the discourse may deserue . vvherefore vntill my leisure may serue to performe that , i intreate you louingly to accept this . one thing i haue done in this booke , vvhereof , because it may seeme straunge to some , i thinke to yeld my reason : and that is the inserting not onely of vvords belonging to the art of the lavve , but of any other also , that i thought obscure , of vvhat sort soeuer ; as fish , cloth , spices , drugs , furres , and such like . for in this i follovv the example of our ciuilians , that haue thought it their part to expound any thing they could meete with in their vvalke . and in deede a lavvyer professeth true philosophy , and therefore should not be ignorant ( if it vvere possible ) of either beastes , foules , or creeping things , nor of the trees from the cedar in lebanon , to the hyssop that springeth out of the vvall . and therefore , if i haue either omitted any hard vvord vvithin my circuit , or set it dovvne not expounded ; i giue you good leaue to impute the one to my negligence , the other to mine ignorance : and so cōmend these my paines to your best profit , and you vnto god. nouember . . . io. covvell . these faults i haue noted ( according to the words alphabetically ) which of necessitie require emendation . in the word rawnge , for pouralleeses , read pourallees . in the word reasonable ayde , reade claimeth of his tenents , houlding &c. for the word remittere , read remitter . in the word returno habendo , for expleuied , reade repleuied . in the word scot and lot , for aulote & auscote , reade anlote & anscote . for the word statutum de laboriis , reade laborariis . in the word terme , for certifie , reade rectifie . for the word thrid with hawan man , reade thrid nith . for the word tost , read toft in the word tolle , for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , read 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , read 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . in the word verdour , for verdioir , read verdeur . for the word vicountie , reade vicountiel . in the word watlingstreat , for tosse , read fosse : in the word widow , for vide , read vuide . for the word woolferthfod , read wolferhefod . the signification of words . a b abate ( iutrudere ) seemeth to be taken from the french abatre , i. decutere , destruere , prosternere . it is in the writers of the common law vsed both actiuely and passiuely , or rather neuterly : as to abate a castell or a fortlet , old. nat. br . fo . which in westm . . cap. . is plainely interpreted to be as much , as to beate downe . and to abate a writ , is by some exception to defeate or ouerthrow it , britton . cap. . and in this actiue voice it hath two significations : one generall , another speciall : generall , as in the former examples : and againe in kitchin fol. . abater meason , is to ruine or cast downe a house : especiall , as in the old. nat br . fol. . a stranger abateth , that is , entreth vpon a house or lād void by the death of him that last possessed it , before the heire take his possession , and so keepeth him out . wherefore as he that putteth out him in possession , is said to disseise : so he that steppeth in betweene the former possessor and his heire , is said to abate . in the neuter signification it is vsed , ann . . edw. . stat . . of ioynt tenants , viz. the writ of the demandant shall abate , that is , shall be disabled , frustrated or ouerthrowne . so in stawnfords plees of the crowne , fol. . in this case a man may say , that the appeale abateth by covin , that is , that the accusation is defeated by deceit . see intrusion . abatement ( intrusio ) cōmeth also of the french ( abatement ) i. deiectio , decussio , prostratio , and is likewise vsed as the verbe ( abate ) both actiuely and passiuely : somtime signifying the act of the abator ; as the abatement of the heire into the land before he hath agreed with the lord. old nat . br . fol. . sometime the affection or passion of the thing abated , as abatement of the writ . kitchin. fol. . and in this signification it is as much as exceptio dilatoria with the civilians , brit. cap. . or rather an effect of it . for the exception alledged , and made good , worketh the abatement . and this exception may be taken either to the insufficiencie of the matter , or to the incertaintie of the allegation by the misnaming of the plaintiffe , defendant , or place , to the variance betweene the writ and the specialtie , or record , to the incertaintie of the vvrit , count , or declaration , or to the death of the plaintiffe or defendant : new tearmes of the law , verbo , abatement of writ . and he that will reade more of this , may looke vpon the new booke of entries , verbo , briefe . abatour ( intrusor ) is he that abateth , that is , thrusteth into a house or land , void by the death of the former possessor , and not yet entred or taken vp by his heire . old. nat . br . fol. . perkins fol. . if there be a disseissor , abator , or intrudor vpon any land by the deceipt of the woman , &c. abbot ( abbas ) in french abbè , is by skilfull linguists said to come from the syriacke word ( abba ) i. pater , and in our common law is vsed for him that in the covent or fellowship of canons hath the rule and preheminence . he is by iustinian . novel . constitut . . § . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . tearmed archimandrita , of others coenobiarcha , vel archimonachus , hoto . in verbis feuda . of these some here in england were mitred , some not : stowes annals , pa. . and those that were mitred , were exempted from the iurisdiction of the diocesan , hauing in themselues episcopal authoritie within their precincts , and being also lords of the parlament . of this kind thus saith corasius ; aliqui abbates habent iurisdictionem episcopalem , ad quos cum ecclesia pleno iure pertineat , in eorum monasteriis episcopus nihil exercet , cap. ea quae . vbi panor . extra de statu monacho . haec dictus author in paraphrasi de sacerdotio . materia , parte pri . cap. . and these were called abbots soueraigne , anno . r. . cap . and abbots generals , as m. fearne noteth in his glory of generositie . pag. . the other sort were subiect to the diocesan in all spirituall gouernement , cap. monasteria , . quaest . . cap. abbas . & cap. visit andi , cum quatuor sequentibus ibidem . ca. omnes . . quaest . . & cap. cùm venerabilis . extra de religîosis domibus . and as abbots , so were there lord priors also , who both had exempt iurisdiction , & were lords of the parlament , as appeareth by s. edward cooke de iure ecclesiastico , fol. . a. abeyance , seemeth to be deriued from the french ( abayer . i. allatrare , ) to barke at , as dogs do against a stranger , or spaniels at a fesant put to the pearke . so children are said ( bayer à la mamme ) when seing the dug , they struggle and make meanes towards it . and they likewise ( bayer a l'argent ) qui spe atque animo incumbunt pecuniae . this word in litleton , cap. discontinuance , is thus vsed . the right of fee-simple lyeth in abeyance : that is , ( as himselfe interpreteth ) all onely in the remembrance , intendmēt , and consideration of the law . also in the same place : the francke tenement of the glebe of the parsonage , is in no man during the time that the parsonage is void , but is in abeyance . and againe : it is a principle in lawe , that of euery land there is fee-simple in some man , or the fee-simple is in abeyance . considering these places , and comparing them with the signification of the french word , i am driuen to thinke , that our auncient lawyers would signifie hereby a kind of hope , or longing expectance : because that those things that be in abeyance , though for the present they be in no man , yet they are in hope and expectation belonging to him that is next to enioy them . for i find also in the french , that vn bayard , is avidus spectator , a greedy beholder . i cannot in mine owne opinion better compare this , then to that which the civilians call haereditatem iacentem . for as bracton saith ( lib. . cap. . nu . . ) haereditas iacens nullius est in bonis ante aditionem . sed fallit in hoc quia sustinet vicem personae defuncti , vel quia speratur futura haereditas eius qui adibit . so that ( as the civilians say ) goods and lands do iacere , whilest they want a possessor , and yet not simply , because they had lately one , and may shortly haue another : so the common lawyers do say , that things in like estate are in abeyance . reade farther of this in the new tearmes of lawe , and in plowdens reports , casu vvalsingham , fol. . a. abet ( abettare ) may without absurditie be said to proceed frō the french ( bouter ) i. ponere , apponere , impellere , propellere . it signifieth in our common law as much as to encourage or set on . the substantiue ( abetment , abettum ) is vsed for an encouraging or setting on , stawnf . pl. cor . fol. . and also ( abettour ) for him that encourageth or setteth on , old nat . br . fol. . but both verbe and noune is alway vsed in the euill part . abishersing ( according to rastall in his abridgement , titulo exposition of law words ) is to be quit of amerciaments before whom soeuer of transgression . the author of the new tearmes calleth it otherwise ( mishersing ) and saith it is to be quit of amerciaments before whom soeuer of transgression proued . i am of opinion that the word originally signifieth a forfeiture , or an amerciament , and that it is much transformed in the writing by misprision and ignorance of clerkes : thinking it very probable , that it proceedeth from the germane verbe ( beschetzen ) which is as much as fisco addicere vel confiscare . it seemeth by the former authors to be tearmed a freedome or libertie , because he that hath this word in any charter or grant , hath not onely the forfeitures and amerciaments of all others within his fee for transgressions , but also is himself free from all such controule of any within that compasse . abiuration ( abiuratio ) signifieth in our common law asworne banishment , or an oath taken to forsake the realme for euer . for as stawnford pl. cord . li. . cap. . saith out of polydore virgils eleuenth booke of chronicles , the deuotion toward the church first in s. edward a saxon king , and so consequently in al the rest vntil anno . h. . was so earnest that if a man hauing committed felonie , could recouer a church or church yard before he were apprehended , he might not be thence drawne to the vsuall trial of lawe , but confessing his fault to the iustices at their comming , or to the coroner , before them , or him giue his oath finally to forsake the realme . of this you may reade a touch , anno . hen. . cap. . but the forme and effect of this you may haue in the old abridgement of statutes , titulo . abiuration . nu . . taken out of the auncient tractate intituled , de officiis coronatorum : as also in cromptons tractate of the office of the coroner , fol. . b. and in the new booke of entries , verbo , abiuration : and in andrew horus myrror of iustices , lib. . cap. del office del coroner . this part of our lawe was in some sort practised by the saxons , as appeareth by the lawes of king edward set out by m. lamberd , nu . . but more directly by the normans , as is euident by the grand customarie , cap. . where you haue these words in effect : he that flyeth to a church , or holy place , may stay there for eight dayes . and at the ninth day he must be demaunded , whether he will yeeld himselfe to secular iustice , or hold him to the church . for if he will , he may yeeld himselfe to the lay court : if he will cleaue to the church , he shall forsweare the countrie before the knights and other people of credit , which may witnesse the act , if need require . the forme of the oath is likewise there set downe with the rest of the proceeding in this matter very agreable with ours . this mercie as well of the saxōs as normans deriued vnto vs , something resembleth that of the romaine emperors toward such as fled to the church , lib. . co. titulo . or to the images of themselues , eodem . titulo . and also that of moses touching the cities of refuge , exod. cap. . vers . . numb . cap. . vers . . . deut. . vers . . ios . . vers . . but as it was in our auncestors dayes larger by great oddes in this realme , so had it lesse reason , as it may appeare to all that will compare them . of all circumstances belonging to this abiuration , you may farther reade the new tearmes of lawe : stawnford vbi supra , and such others . but this grew at the last vpon good reason to be but a perpetual confining of the offender to some sanctuarie , wherein , vpon abiuration of his liberty and free habitations , he would chuse to spend his life , as appeareth , anno . hen. . cap. . and this benefite also by other statutes is at the last wholly taken away . so that abiuration at this day hath place but in few cases : and if it be inflicted vpon any , it is not a confining to a sanctuarie ( for there be no sanctuaries remaining amongst vs ) but a sworne banishment out of the kings dominions . this the civilians call exilium , or deportationem , lib. . digest . titulo . de interdictis , relegatis & deportatis . abridge ( abbreniare ) cōmeth of the french ( abreger ) and in one generall language signifieth as much as to make shorter in words , holding still the whole substance . but in the common lawe it seemeth ( at the least for the most part ) to be more particularly vsed for making a declaration or count shorter by subtracting or seuering some of the substance therein comprised . as for example : a man is said to abridge his plaint in an assise , or a woman her demaund in an action of dower , that hath put into the plee or demand any land not in the tenure of the tenant or defendant : and finding that by his answer , razeth those parcels out of the plee , praying answer to the rest . so that here ( abridger ) is not ( contrahere ) but rather subtrahere . termes of the lawe . broke . titulo , abridgement . and anno . hen. . cap. . of this the civilians haue no vse , by reason of certaine cautelous clauses , they ordinarily haue at the end of euery position or article of their libell or declaration to this effect : et ponit coniunctim , divisim , & de quolibet , & de tali & tanta quantitate vel summa qualis & quanta per confessionem partis adversae , vel per probationes legitimas in fine litis apparebit . and againe , in the conclusion of all : non astringens se ad singula probanda , sed potens , vtquatenus probauerit in praemissis , aut eorum aliquo , eatenus obtineat . by vertue of which clauses the plaintiffe faileth not in the end by any ouer or vnder demand , neither is driuen to begin his action againe , but obtaineth for so much as he proueth to be due , though not to the heithe of his demaund . abridgement ( abbreuiamentum ) see abridge . a c accedas ad curiam , is a writ that lieth for him , who hath receyued false iudgement in a court baron , being directed to the sheriffe , as appeareth by dyer , fol. . nu . . like as the writ de falso iudicio lyeth for him that hath receiued false iudgement in the county court : the forme whereof you may see in fitzh . nat . br . fol. . d. and in the register fol. . b. where it is said , that this writ lyeth for iustice delayed , as well as falsly giuen . it is a species of the writ called ( recordare ) register originall , fol. . b. and fitzh . vbi supra . accedas ad vicecomitem is a writ directed to the coroner cōmanding him to deliuer a writ to the sheriffe , that hauing a ( pone ) deliuered vnto him , doth suppresse it , regist . origin . fol. . accessory ( accessorius vel accessorium ) is vsed in our common lawe , otherwise then among the ciuilians . for whereas with them it is generally takē for any thing depending vpon another : here though it be so likewise , yet most commonly and notoriously it signifieth a man that is guiltie of a fellonious offence , not principally , but by participation : as by commandement , aduice , or concealement . and a man may be accessorie to the offence of another after two sorts : by the common lawe , or by statute : and by the common lawe two waies also : that is , before or after the fact . before the fact , as when one commaundeth or aduiseth another to commita felony , and is not present at the execution thereof . for his presence maketh him also a principall : wherfore there cannot be an accessorie before the fact in manslaughter , because man-slaughter is sodaine and not prepensed , cooke lib. . fol. . a. accessorie after the fact , is when one receiueth him , whom he knoweth to haue committed felonie . accessorie by statute is he that abetteth , councelleth , or hideth any man committing or hauing committed an offence made felony by statute . for though the statute make no mention of abettours , &c. yet they are by interpretation included . of all these consult with stawnf . pl. cor . lib. . cap. . . . . there is also an accessorie of an accessorie , as he that wittingly receiueth an accessorie to felonie . lib. assis . . pl. . coron . fitzh . . stawnf . pl. cor . li. . cap. . and the lawe of england is , that so long as the principall is not attainted , the accessorie may not be dealt with , stawnf . vbi supra . the reason whereofyou may see , cooke lib. . fol. . b. and this is also true by the ciuill lawe . claudius de battandier . in pract . crim . regula . at the least vntill the principall be certainely knowne . of this subiect reade m. cromptons iustice , fol. . b. . . acceptance , is a receiuing of a rent , whereby the receiuer bindeth himselfe for euer to allow a former fact done by another , whether it be in it selfe good or not new tearmes of law . accompte ( computus ) is in the cōmon lawe taken for a writte or action brought against a man , that by meanes of office or businesse vndertaken , is to render an account vnto another : as a bailife toward his master , a guardian in socage toward his ward , & such others , as you shall find particularly named by fitzh . in his nat . br . fo . . where you may also haue the forme and further vse of this writte . see ex parte talis . accroche . see enchrochement . this word accroche is vsed . ann . . ed. . stat. . ca. . achat . commeth of the french ( achet . . emptio , nundinatio ) and is vsed for a contract or bargain . broke . tit . contract . acquitall , signifieth in our cōmon law most ordinarily a deliuerance & setting free from the suspicion or guiltines of an offence : and is twofold : acquitall in law , or acquital in fact . acquitall in law is , when two be appealed or endicted of felony , one as principall , the other as accessorie , the principall being discharged , the accessorie by consequent is also freed . and in this case as the accessorie is acquitted by law , so is the principall in fact . stawnf . pl. cor . fo . . acquittance ( acquietantia ) cōmeth from the french ( quicter or quitter . i. acceptò ferre , or quictance . i. acceptitatio , apocha . ) and signifieth a release or discharge from a dept formerly due . but the verbe ( acquite ) , the participle ( acquited ) & the nowne ( acquital ) signifie also a discharge or cleering from an offence obiected , as : acquited by proclamation . smith de rep . anglo . pa. . stawnf . pl. cor . fo . . broke . tit . acquitall . see the new tearmes of lawe . verbo , acquitall & acquittance . acquietandis plegiis , is a writ lying for a suretie against the creditour that refuseth to acquite him , after the debt is paid by the debtour , register ori . fol. . where it appeareth that this is a iusticies . acre ( acre ) is a certaine quātitie of land containing in length . perches , and foure in breadth , or to that quantitie , be the length more or lesse . and if a man erect any new cotage , he must lay . acres of land to it after this measure , anno . eliza. cap. . and with this measure agreeth m. crompton in his iurisdiction of courts , fol. . though he say also , that according to the diuers customes of diuers countries the perche differeth , being in some places , and most ordinarily , but . foot dimid . but in the counties of stafford . foote , as was adiudged in the case betweene sir ed. aston , and s. iohn b. in the exchequer . in the statute made of sowing of flaxe , ann . h. . cap. . eight score perches make an acre , which is . multiplied by . see also the ordinance of measuring land , made anno . ed. . stat. . which agreeth with this accompt . the word ( acre ) seemeth to come from the germane word ( acker ) which is all one with the latine ( ager . ) action ( actio ) is defined by bracton lib. . cap. . as it is by iustinian . li. . instit . titulo . de actionibus , viz. actio nihil aliud est quàm ius persequēds in iudicio quod alicui debetur . action is principally diuided by iustinian , in personalem & realem : by bracton , into personall , reall , and mixt : action personall is that , which belongeth to a man against another by reason of any contract , offence , or cause of like force to a contract or offence made or done by him or some other , for whose fact he is by law to answer , bract. lib. . cap. . nu . . action reall is defined to be that which is giuen to any man against another , that vpon any cause possesseth or occupieth the thing required or siewed for in his owne name , and none other mans : and in this onely respect , that he possesseth or occupieth the thing , and none other . bract. ibid. nu . . and his reason is this : quia habet rem vel possidet , quam restituere potest vel dominum nominare . this definition & reason he farther exēplifieth in the words there following , which he that wil may reade at large . action mixt is that , which lyeth aswell against or for the thing which we seeke , as against the person that hath it : and is called mixt , because it hath a mixt respect both to the thing & the person , bract. lib. . cap. . nu . . for example , the diuision of an inheritance betweene coheyres or copartners , called in the ciuill lawe ( actio familiae exciscunde : ) secondly , the diuision of any particular thing being common to more , called likewise ( actio de communi dividundo : ) this kind of action ( saith bracton ) doth seeme to be mixt , because it lyeth as well against thing , as the person : and indeed so do other excellent civilians , as cuiacius and wesenbecius in their paratitles . Π. finium regund . and though iustinian in his first diuision omitteth the third member : yet afterward in the same title , § . . he saith as these men do , viz. that there be certaine actions ( naming these and other of like nature ) that seeme to haue a mixture , &c. of this you may also reade britton at large in his chapter . and this diuision of action springeth frō the obiect or matter , wherabout it consisteth , wesenb . parat . 〈◊〉 . de actio . & obliga . the author of the new tearmes of law defineth a mixt action to be a suite giuen by the lawe to recouer the thing demaunded , and also the dammages for wrong done : as in assise of nouel disseysin : the which writ , if the diffeisour make a feofment to another , the disseiseur shall haue remedie against the disseisour and the feoffer , or other land tenant , to recouer not onely the land , but the dammages also . see the rest . these words occasion me to shew , that actio is by the ciuill lawe called mixta in two respects : nam quaedam mistae sunt quòd in se , & actionis in rem , & actionis personalis natur am habeant , & in iis , & actor & reus vterque sit , l. actionis verbo . § . fina . Π. de obliga , & actio . tales sunt actio familiae ercise . communi diuidun . & finium regun . quaedam verò mistae sunt , quòd remsimul & poenam persequantur , vt in actione vi bonorum rapt . legis aquiliae , & ea quae datur contra eos qui legata vel fidei commissa sacrosanctis ecclesiis relicta soluere distulerunt . and of this later sort is the example that the said author bringeth of a mixt action . action , is also by the civilians divided , of the efficient cause , in civilem & praetoriam . whereof the one riseth out of the common civil lawe , the other from some edict of the pretour . who being cheife iusticer , had authoritie for his yeare , to supply the defects of the general law by his especial edicts . and a division not vnlike this may be made in the common law of england , one growing from the auncient qustomary law , the other from some statute . broke . tit . action sur le statut . action of the finall cause , is divided into civil , poenal , & mixt . cooke vol. . fo . . a. action civile is that , which tendeth onely to the recouerie of that which by reason of any contract or other like cause , is due vnto vs : as if a man by action seeke to recouer a summe of money formerly lent , &c. action penall is , that aimeth at some penaltie or punishment in the partie sued , be it corporall or pecuniarie . as in the action legis aquiliae in the civile lawe : whereby in our common lawe the next frends of a man feloniously slaine or wounded , shall persue the law against the murderer , or him that wounded him , to condigne punishment . bract. li. . ca. . action mixt is that , which seeketh both the thing whereof we are depriued , and a penaltie also for the vniust deteyning of the same : as in an action of tithe vpon the statute . anno . . & . ed. . ca. . action is also , according to the forme of petion divided into such as are conceiued to recouer either the simple value of the thing chalenged , or the double , the triple , or quadruple . bract. li. . ca. . nu . . so doeth decies tantum lie against embracers . fitzh . nat . br . fo . . and against iurours that take mony for their verdict of one part , or the other , or both . and to be short , any other action vpon a statute that punisheth any offence by restitution , or fine proportionable to the transgression . action is preiudiciall ( otherwise called preparatorie ) or els principall : preiudiciall is that which groweth from some question or doubt in the principall : as if a man sue his younger brother for land descended from his father , and it be obiected vnto him that he is a bastard . bract. li. . ca. . nu . . for this pointe of bastardie must be tried before the cause can farder proceede , & therefore is termed preiudicialis , quia prius iudicanda . action is either awncestrell , or personall . stawnf . pl. cor . . auncestrel seemeth to be that , which we haue by some right descending from our auncester vpon vs : and that personall , which hath the beginning in and from our selues . action vpon the case ( actio super casu ) is a generall action giuen for redresse of wrongs done without force against any man , and by lawe not especially provided for . for where you haue any occasiō of suite , that neither hath a fitte name , nor certaine forme alreadie prescribed : there the clerkes of the chauncerie in auncient time conceiued a fitte forme of action for the fact in questiō : which the civilians call actionem infactum , & our common lawyers action vpon the case . in factum actiones dicuntur ideo , quia quod nomine non possunt exprimere negotium , id rei gestae enarratione declarant citra formulā ac solennitatem vllā : cuiacius & gothofredus ad rubricam de praescriptis verbis . and whereas in the civile lawe there are two sorts ( actionis in factum ) one tearmed actio in factum ex praescriptis verbis , the other actio in factum praetoria . we semb . parat . de praescrip . verb. the former growing vpon words passed in contract , the other more generally vpon any fact touching either contract or offence formerly not provided against , this action vpon the case seemeth in vse to bemore like to the pretours action in factum , then to the other : because in the perusall of the new booke of entries , and brookes his abridgement heerevpon , i perceiue that an action vpon the case lieth as well against offenses , as breach of contract . of this see more in the word trespas . action vpon the statute ( actio super statuto ) is an action brought against a man vpon breach of a statute : to be resembled in mine opinion to any action giuen in the lawe imperiall , either vpon edictum praetoris , plebiscitum , or senatusconsultum . for as the pretour , so the common people in comitijs tributis , & the senatours or nobility in curia vel senatu , had power to make lawes , wherevpon the pretour or other iudges permitted action . and euen so our high court of parlament maketh statutes against such offēces , as are either newly grown , or more and more increased : and our iudges intertaine their plees , that commence actions against the breakers of them . action is perpetuall or temporall ( perpetua vel temporalis ) and that is called perpetuall , the force whereof is by no time determined . of which sort were all ciuill actions among the auncient romaines , viz. such as grew from lawes , decrees of the senate , or constitutions of the emperors : whereas actions granted by the pretor , died within the yeare , de perpet . & tempor . actio . in institut . so we haue in england perpetuall and temporarie actions : and i thinke all may be called perpetuall , that are not expresly limited . as diuers statutes giue actions , so they be pursued within the time by them prescribed , namely , the statute anno . ed. . cap. . giueth action for . yeares after the offences therein shall be committed , and no longer : and the statute anno . h. . cap. . doth the like for foure yeares , and that anno . eliz. cap. . for one yeare & no more . but as by the ciuill lawe no actions were at the last so perpetual , but that by time they might be prescribed against : as actiones in rem , decem aut viginti terminantur annis , personales verò triginta . § . . de perpet . & temp . actio . in institutio . & l. . co. de praescript . . annorum : so in our common law , though actions may be called perpetual in comparison of those that be expressely limited by statute : yet is there a means to prescribe against reall actions within fiue yeares , by a fine leuied , or a recouerie acknowledged , as you may see farther in the word , fine , and recouerie . and for this also looke limitation of assise . action is farther diuided , in actionem bona fidei & stricti iuris . which diuision hath good vse in our common lawe likewise , though the tearmes i find not in any of their writers . but of this , and such like diuisions , because they haue as yet no apparent acceptance amongst our lawyers , but onely a hidden vse , i referre the reader to the ciuilians , and namely to wesenb . in his paratitles . Π. de obligatio . & actio . addition ( additio ) is both the english and french word made of the latine , and signifieth in our common law a title giuen to a man ouer and aboue his christian and surname , shewing his estate , degree , occupation , trade , age , place of dwelling , &c. for the vse wherof in originall writs of actions personale , appeales , and indictments , it is prouided by statute anno . h. . cap. . vpō the penaltie therein , expressed . tearmes of the lawe . broke farder addeth , that it is likewise requisite in townes , and gates of townes ; parishes in great townes and cities , where there may be any doubt , by reason of more townes , gates , or parishes of the same name , titulo addition . see also m. cromptons iustice of peace , fol. . . adeling was a word of honor among the angles , properly apertaining to the kings children , whereupon king edward being himselfe without issue , and intending to make eadgare ( to whome he was great vnkle by the mothers side ) his heire to this kingdome , called him adeling . roger houedine , parte poster . suorum annal. fol. . a. adiournment ( adiurnamentum ) is almost all one with the french ( adiounrement . i. denunciatio vel diei dictio ) and signifieth in our commō law an assignement of a day , or a putting off vntill another day , adiournment in eyre , ( anno . ed. . statute of pourveyers , cap. . ) is an appointment of a day , when the iustices in eire meane to sit againe . adiourn . anno . edw. . cap. . hath the like signification . and this whole title in broke his abridgement proueth the same . the bastard latine word ( adiurnamentum ) is vsed also among the burgundians , as m. skene noteth in his booke de verbo signi , verbo , adiurnatus , out of chassaneus de consuet . burg. ad inquirendum , is a writ iudiciall , commanding inquirie to be made of any thing touching a cause depending in the kings court , for the better execution of iustice , as of bastardie , of bondmen , and such like : whereof see great diuersitie in the table of the register iudiciall , verbo , ad inquirendum . admeasurement ( admensuratio ) is a writ , which lyeth for the bringing of those to a mediocritie , that vsurpe more then their part . and it lyeth in two cases : one is tearmed admeasurement of dower ( admensuratio dotis ) where the widow of the deceased , holdeth from the heire or his guardian more in the name of her dower , then of right belongeth vnto her . register orig . fol. . a. fitzh . nat . br . fol. . the other is admeasurement of pasture ( admensuratio pasturae ) which lieth betweene those , that haue common of pasture appendant to their free-hold , or common by vicenage , in case any one of them , or more , doe surcharge the common with more cattell then they ought , register . orig . fol. . b. fitzh . nat . br . fol. . administer ( administrator ) in our common law is properly taken for him , that hath the goods of a man dying intestate , committed to his charge 〈…〉 y the ordinary , & is accountable for the same , whensoeuer it shall please the ordinarie to call him thereunto . i finde not this word soe vsed in all the civile or canon lawe , but more generally for those , that haue the gouernment of any thing , as the decrees . can . . quaest . . c. . administratores plane saecularium dignitatum . &c. and extrava . com . ca. . grangias autem , & alia loca cisterciensium ordinis , & aliorum regalium , in quibus gubernatores , seu custodes vel administratores ponuntur , &c. howsoeuer the signification of this word grew to be restrained amongst vs , it greatly booteth not . but there was a statute made anno . . ed. . ca. . whereby power was giuen to the ordinarie to appointe these administratours , and to authorize them as fully as executors , to gather vp , and to dispose the goods of the deceased : alway provided , that they should be accountable for the same , as executors . and before that , viz. westm . . anno . ed. . ca. . it was ordeined , that the goods of those that died intestate , should be committed to the ordinarie his disposition , and that the ordinarie should be bound to answer his debts , so far forth as the goods would extēd , as executors . and i perswade myselfe that the committing of this burden vnto bishops , & to those that deriue ecclesiasticall authoritie from them , grew first from the constitution of leo the emperour . co. de episco . & cleri . l. nulli licere . . where it is saide , that if a man dying bequeath any thing to the redeeming of captives , &c. and appoint one to execute his will in that point , the partie soe appointed shall see it performed : and if he appointe none to doe it , then the bishop of the citie shall haue power to demaund the legacie , and without all delay performe the will of the deceased . admirall ( admiralius ) cometh of the frenche ( amerall ) and signifieth , both in france and with vs , an high officer or magistrate that hath the gouernement of the kings navie , and the hearing and determining of all causes , as well civile as criminall belōging to the sea . cromptons diuers iurisd . fo . . and the statutes anno . r. . ca. . & anno . . eiusdem . ca. . & an . . h. . ca. . & anno . . h. . ca. . & an . . h. . ca. . with such like . this officer is in all kingdomes of europe that border vpon the sea : and his authoritie in the kingdome of naples is called , magna curia admirariae quae habet iurisdictionem in eos qui vivunt ex arte maris . vincent de franch . descis . . nu . . this magistrate among the romanes was called praefectus classis , as appeareth by tully in verrem . . but his authoritie was not continuall , as the admirals is in these daies , but onely in time of warre . neither doe i finde any such officer belonging to the emperours in our code . and m. guyn in the preface to his reading , is of opinion that this office in england was not created vntill the daies of edward the third : his reason is probable . britton that wrote in edw. the firsts time , and in the beginning of his booke taking vpon him to name all the courts of iustice , maketh no mention of this courte or magistrate . and againe richard the second finding the admirall to extend his iurisdiction over farre , ordeined by statute made the . yeare of his reigne , that the limits of the admirals iurisdiction should be restrained to the power he had in his grandfather edward the thirds daies , whereby the saide master gwin coniectureth that he did nought els but reduce him to his originall . but contrarily to this it appeareth by auncient records , the copies whereof i have seene , that not onely in the daies of ed. the first , but also of king iohn , all causes of merchants and mariuers , and things happening within the fludde marke , were ever tried before the lord admirall . adiura regis , is a writ for the kings clerke against him that seeketh to eiect him to the preiudice of the kings title in the right of his crowne . of this you may see diuers formes vpon divers cases . register . orig . fo . . a. admittendo clerico , is a writte graunted to him that hath recouered his right of presentation a-against the bishop in the common bank : the forme whereof read in fitzh . nat . br . fo . . & the register . orig . fo . . a. admittendo in socium , is a writ for the association of certaine persons to iustices of assises formerly appointed , register . orig . fol. . a. ad quod damnum , is a writ that lyeth to the escheater to inquire what hurt it will be to the king , or other person , to graunt a faire or market , or a mortmaine for any lands intended to be giuen in fee simple to any house of religion , or other body politicke . for in that case , the land so giuē is said to fal into a dead hād , that is , such an estate and condition , that the chiefe lords do leese all hope of heriots , seruice of court , and escheates vpon any traiterous or felonious offence committed by the tenant . for a bodie politicke dieth not , neither can performe personall seruice , or commit treason or felonie , as a singular person may . and therefore it is reasonable , that before any such grant be made , it should be knowne , what preiudice it is like to worke to the graunter . of this reade more in fitzh . nat . breu . fol. . and look mortmaine . ad terminum qui praeteriit , is a writ of entrie , that lyeth in case where a man hauing leased lands or tenements for terme of life or yeers , and after the terme expired , is held from them by the tenant , or other stranger that occupieth the same , and deforceth the leassour . which writ belongeth to the leassour and his heire also , fitzh . nat . br . fol. . aduent ( aduentus ) is a certaine space of time comprising a moneth or thereabout , next before the feast of christs natiuitie . wherein it seemeth that our ancestors reposed a kind of reuerence for the neerenesse of that solemne feast : so that all contentions in lawe were then remitted for a season . whereupon there was a statute ordained westm . . cap. . anno . ed. . that notwithstanding the said vsuall solemnitie and time of rest , it might be lawfull in respect of iustice and charitie , which ought at all times to be regarded ) to take assises of nouell disseisin , mort d'auncester , and darrein presentment , in the time of aduent , septuagesima , and lent. this is also one of the times , from the beginning whereof vnto the end of the octaues of the epiphany , the solemnizing of mariage is forbidden , by reason of a certain spiritualioy that the church , & so consequently euery member thereof , for that time , doth or ought to conceiue in the remembrance of her spouse christ iesus , and so abandon all affections of the flesh . see rogation weeke , and septuagesima . advocatione decimarum , is a writ that lyeth for the claime of the fourth part or vpward , of the tythes that belong to any church , register orig . fol. . b. advow , aliâs avowe ( advocare ) commeth of the french ( advoüer , aliâs avoüer , and signifieth as much as to iustifie or maintaine an act formerly done . for example , one taketh a distresse for rent or other thing , and he that is destreyned , sueth a replevin . now he that tooke the distresse , or to whose vse the distresse was taken by another , iustifying or maintaining the act , is said to avowe . tearmes of the lawe . hereof commeth advowant , old. nat . br . fol. . and advowrie , eodem folio . bracton vseth the latine word in the same signification , as ( advocatio disseisiuae ) li. . cap. . and i find in cassauaeus de consuet . burg. pa. . ( advohare ) in the same signification , and pag. . the substantine ( desavohamentum ) for a disavowing or refusall to avowe . advowzen ( advocatio ) signifieth in our common law a right to present to a benefice , as much as ( ius patronatus ) in the canon lawe . the reason why it is so tearmed , proceedeth from this , because they that originally obtained the right of presenting to any church , were maintainers and vpholders , or great benefactors to that church , either by building or increasing it : and are thereupon tearmed sometime patroni , sometime advocati , cap. . & cap. . de iure patronatus in decretal . and advowzen being a bastardly french word is vsed for the right of presenting , as appeareth by the statute of westm . the second anno . ed. . ca. . advowsen is of two sorts : advowsen in grosse , that is , sole or principall , not adhering or belonging to any maner as parcell of the right thereof : advowzen dependant , which dependeth vpon a maner as appertinent vnto it , tearmed of kitchin an incident , that may be separated from the subiect . of this m. iohn skeene de verbo . sig . hath these wordes : dicitur advocatio ecclesiae , vel quia patronus alicuius ecclesia ratione sui iuris advocat se ad candem ecclesiam , & asserit se in eadem habere ius patronatus , ●amque esse sui quasi clientis loco , vel potiùs cùm aliquis ( nempēpatronus ) advocat alium iure suo ad ecclesiam vacantē , eumque loco alterius ( veluti defuncti ) praesentat & quasi exhibet . see advowè next following : advowè , alias avowè ( advocatus ) is vsed for him that hath right to present to a benefice , an . ed. . st at . . ca. vnico . there haue you also ( advowe paramount ) which is as much as the highest patron , and is spoken of the king. advocatus est ad quem pertinet ius advocationis alicuius ecclesia , vt ad ecclesiam , nomine proprio non alieno , possit praesentare . fleta li. . ca. . § . i. fitzh . in his nat . br . fo . . vseth it in the same signification . see advowsen . and avowé . aetate probanda , is a writ that the kings tenent holding in chiefe by chivalrie , and being warde by reason of his nonage , obteineth to the eschetour of the countie where he was borne , or some time , where the land lyeth , to enquire , whether he be of full age to haue deliverie of his lands into his owe hand . register orig . fo . . & . fitzh . nat . br . fo . . who also fo . . saith that this writ is some time directed to the shirei●● to empanell a iurie for this enquirie against a day certaine , before commissioners authorized vnder the broad seale to deale in such a cause . aërie of goshawkes ( aëria accipitrum ) commeth from the french ( aiëre ) signifiing so much as ( par ) in latine or ( a paire ) in english for the french man saying that one is ( vn houme de boun aiere ) signifieth that he commeth of a good paire , that is , a good father and a good mother . it is in our language the proper word in hawkes , for that which we generally call a nest in other birds . so is it vsed anno . h. . ca. . in the charter of the forest , and in divers other places . affeerours ( afferatores , aliàs affidati ) may probably be thought to proceede from the french ( affier . i. confirmare , affirmare ) it signifieth in our common lawe , those that be appointed in court leetes , &c. vpon oath to mulct such as haue committed faults arbitrablely punishable , & haue no expresse penaltie set downe by statute . the forme of their oathe you may see in kitchin . fo . . the reason of this appellation mayseeme to be , because they that be appointed to this office , do affirme vpon there oathes , what penaltie they think in conscience the offendour hath deserued . it may likewise probably be thought , that this commeth from ( feere ) an olde english word signifying a companion , as ( gefera ) doeth among the saxons by m. lamberds testimonie , verbo ( contubernalis ) in his explication of saxon words . and so it may be gathered that m. kitchin taketh it . ca. amercements . fo . . in these words . ( mas si le amercement soit affire per pares ) where pares ) be put for affeerors . and there may be good reason of this , because they are in this busines made companions and equals . you shall finde this word vsed . an . . ed. . sta . . viz. and the same iustices before their rising in every sessions , shall cause to be affeered the amercements , as pertaineth , & also to the same effect . an . . h. . ca. . kitchin. fo . . ioyneth these . . wordes togither as synonyma . ( affidati , amerciatores , affirours . affidare in the canon lawe is vsed for fidem dare . ca. fina . de cognatio . spiritua . in decretal . & ca. super eo . de testibus . bracton hath affidare mulierem , for to be betrothed to a woman . li. . ca. . but i finde in the customarie of normandie . ca. . this word ( affeurer ) which the latine interpretour expresseth by ( taxare ) that is , to set the price of a thing , as ( astimare , indicare , &c. ) which etymologie of all the other pleaseth me best , leauing euery man to his own iudgemēt . affirme ( affirmare ) commeth either of the latine , or frenche ( affirmer ) it signifieth in our common law , as much as to ratifie or approue a former law or iudgement . so is the substantiue ( affirmāce ) vsed anno . . h. . ca. . and so is the verb it selfe by m. west . parte . . symbolai . titulo , fines . sect . . and if the iudgement be affirmed , &c. as also by m. crompton in his diuers iurisd . fo . . afforest ( afforestare ) is to turne ground into forest . charia de foresta . ca. . & . an . . h. . what that is , look more at large in forest . affraye ( affreia ) commeth of the french ( effraier . i. horrificare , terrere ) it signifieth in our common lawe a skirmish or fighting betweene two or more . m. lamberd in his eirenarcha . lib. . cap. . faith , that it is often times confounded with an assault , but yet he is of opinion that they differ in this , that where an assault is but a wrong to the partie , an affray is a common wrong : and therefore both enquirable and punishable in a leete . it might be said likewise , that an assault is but of one side , and an affray of two or more . i thinke this word ( affray ) to be two wayes vsed , one , as i haue alreadie described it , another , for a terror wrought in the subiects by any vnlawfull sight of violence , or armor , &c. tending toward violence . for so is it vsed , anno . ed. . cap. . age ( atas ) commeth from the french ( aage ) and signifieth in our language that part of a mans life , which is from his birth vnto his last day . but it is in the common lawe particularly vsed for those especiall times , which enable men or women to do that , which before for want of age , and so consequently of iudgement , they might not do . and these times in a man be two , in a woman sixe . the age of . yeres is termed the full age in a man , the age of fourteene yeares , the age of discretion , litleton li. . ca. . in a woman there are sixe seuerall ages obserued , that seuerally enable her to do sixe seuerall things . broke . gard. . first , at . yeares of age the lord her father may distraine his tenents for ayde to marry her : for at those yeares she may consent to matrimonie , bract. lib. . cap. . nu . . secondly , at the age of nine yeares she is dowable : for then , or within halfe a yeare after , is she able promereri dotem , & virum sustinere . fleta li. . cap. . litleton lib. prim . cap. . which bracton loco citato doth notwithstanding limit at . yeares . thirdly , at twelue yeares she is able finally to ratifie and confirme her former consent giuen to matrimonie . fourthly , at . yeares she is enabled to receiue her land into her owne hands , and shall be out of ward , if she be of this age at the death of her ancestor . fiftly , at sixteene yeares she shal be out of ward , though at the death of her auncestor she was within the age of fourteen yeres . the reason is , because then she may take a husband able to performe knights seruice . sixtly , at . yeares she is able to alienate her lands and tenements , instit . iure com . cap. . touching this mater , take further these notes perspicuously gathered . at the age of . yeares a striplin is enabled to chuse his owne guardian , and to claime his land holden in socage , dyer fol. . which bracton limiteth at fifteene yeares , li. . cap. . num . . with whom glanvile also agreeth , lib. . cap. . and at the age of fourteene yeares , a man may consent to mariage , as a woman at . bracton . vbi supra . at the age of fifteene yeres a man ought to be sworne to keepe the kings peace , anno . edw. . stat. . the age of . yeares compelleth a man to be knight , that hath twentie pounds land per annum in fee , or for tearme of life , anno . edw. . stat . . and also enableth him to contract and to deale by himself , in all lawfull causes appertaining vnto his estate . which vntill that time , he cannot with the security of those that deale with him . this the lombords settle at . yeares , as appeareth by hotomans disputations in libros feudorum , l. . c. . ver . decimo . octauo anno . which power the romans permitted not vsque ad plenam maturitatem , and that they limited at . yeares . lib. . in fine Π. de maior . . an . l. fin . co. de legit . tut . in principio , titulo de curat . in institut . the age of twelue yeares bindeth to appearance before the sheriffe and coroner for enquirie after roberies , an . . h. . cap. . the age of . yeares , enableth to enter an order of religion without consent of parents , &c. anno . h. . cap. . age prier ( aetatem precari ) or ( aetatis precatio ) is a petition made in count by one in his minoritie , hauing an actiō brought against him , for lands coming to him by discent , that the action may rest vntill he come to his full age : which the court in most cases ought to yeeld vnto . this is otherwise in the ciuill lawe , which inforceth children in their minoritie to answer by their tutors or curatours , Π. de minor . . an . agenhine . see haghenhine . agist ( agistare ) seemeth to come of the french ( gift . . iacet ) hauing ( gasir ) in the infinitiue moode , whence commeth the nowne ( gisme ) a lying in child-bed : or rather of ( gister . i. stabulari ) a word proper to a deare , cùm sub mensem maium è locis abditis in quibus delituit emigrans , in loco delecto stabulari incipit , vnde commoda & propinqua sit pabulatio . budaeus in posteriori libro philologiae . where also he saith , that ( giste ) est idem quod lustrum vel cubile . or it may be probably deduced from the saxon word ( gast . . hospes . ) it signifieth in our common lawe , to take in and feede the ●●tell of straungers in the kings forest , and to gather the money due for the same to the kings vse , charta da foresta , an . . h. . cap. . the officers that do this , are called ( agistors ) in english , guest-takers , eodem . cap. . cromptons iurisdic . fol. . these are made by the kings leters patents vnder the great seale of england : of whom the king hath foure in number within euery forest , where he hath any pawnage , called agistors , or gist-takers . and their office consisteth in these foure points : ( in agist ando , recipiendo , imbreviando , certificando ) manwood parte prima . of forest lawes , p. . & . whome you may reade more at large . their function is tearmed agistment , as agistment vpon the sea banks , anno . h. . cap. . agreement ( agreamentum . i. aggregatio mentium ) is the assent or cōcord of more to one thing : & this by the author of the newe tearmes of lawe , is either executed or executory : which you may read more at large in him exempified by cases . ayde ( auxilium ) is all one in signification with the french ( aide ) and differeth in nothing , but the onely pronunacitiō , if we take it as it is vsed in our vulgar language . but in the common lawe , it is applied to divers particular significations , as sometime to a subsidie . anno . . ed. . stat . . ca. . sometime to a prestation due from tenents to their lords , as toward the releife due to the lord paramount , glanvile li. . cap. . or for the making of his sonne knight , or the marying of his daugnter , idem , eodem . this the king , or other lord by the auncient lawe of england , might lay vpon their tenents , for the knighting of his eldest sonne at the age of . yeares , or the mariage of his daughter at the age of seuen yeares , regist . orig . fol. . a. and that at what rate them selues listed . but the statute , westmin . . anno . edw. . ordained a restraint for to large a demand , made by common persons being lords , in this case , and tyed them to a certaine rate . and the statute made anno . ed. . stat . . cap. . prouideth , that the rate set downe by the former statute , should hold in the king , as well as in other lords . of this i find mention in the statute , an . . h. . ca. . this imposition seemeth to haue descended to vs from normandie : for in the grand custumarie , cap. . you haue a tractate intituled ( des aides chevelz . . de auxilys capitalibus ) whereof the first is ( a faire l'aynè filz de son seigneur chevalier . i. ad filium primogenitum militem faciendum ) the second , ( son ainee fille marier . i. ad filiam primogenitam maritandam . ) and the third , ( a rechapter le corps de son seigneur de prison quand il est prius per la guerre an duc. i. ad corpus dominisui de prisona redimendum cùm captus fuerit pro bello ducis normandiae . also i find in cassanaeus de cōsuet . burg. quòd dominus accipit à subditis pro dotanda filia , pa. . which seemeth to be all one with this our imposition : and also in vincentius de franchis descis . . where he calleth it adiutorium pro maritanda filia . whence it appeareth , that this custome is within the kingdome of naples also . touching this likewise , you may reade these words in maenochius , lib. . de arbitrat . iud. quast . centuria . . cap. . habent saepissimè feudorum possessores & domini multa in carum ditionibus privilegia , multasque cum locorum incolis connentiones : inter quas , illa vna solet nominari , vt possit dominus collectam illis indicere , pro solutione dotium suarum filiarum , cura matrimonio collocantur . hoc aliquando romae observarum à caligulafuisse , in illius vita scribit suetonius , cap. . hodiè hic vsus in subalpina regione est frequens , vt scribit iacobinus de sancto georgio , in tractu de homagiis . col . . etiam pro filia quae religionem ingreditur : & non modò pro vna filia , sed pluribus filiabus , non tamen pro secundis nuptijs exigitur . in which place , the said author maketh mention of diuers other civilians and feudists , that record this custome to be in other places . of this aide , our fleta writeth thus : sicutetiam quaedam consuerudines quaeservitia non dicuntur , nec concomitantia seruitiorū , ficut rationobilia auxilia ad filium primogenitum militem faciendum , vel ad filiam primogenitā maritandam : quae quidem auxilia sunt de gratia & non de iure , pro necessitate & indigentia dominicapitalis . et non sunt praedialia sed personalia , secundùm quod perpendi poterit in breui ad hoc prouiso , &c. this word ( ayde ) is also particularly vsed in matter of pleading , for a petition made in court for the calling in of helpe from another , that hath an interest in the cause in question , and is likely both to giue strength to the party that prayeth in aide of him , and also to auoide a preiudice growing toward his owne right , except it be preuented . for example : when a tenent for terme of life , by courtesie , tenent in taile after possibility of issue extinct , for tearme of yeares , at will , by elegit , or tenent by statute merchant being impleaded touching his estate , may petere auxilium , that is , pray in ayde of him in the reuersion ( that is ) desire or intreate the court , that he may be called in by writ , to alledge what he thinketh good for the maintenance both of his right , and his owne . termes of the lawe . fitzh . mentioneth both ( prier en ayde ) and ( prier ayde de patron , &c. ) auxilium petere à patrono , nat . br . fol. . d. and the new booke of entries , verbo , ayde de parcener , auxilium de parcionario , fol. . columna . this the later practitioners in the ciuill lawe , call authoris laudationem vel nominationem . emericus in pract . titulo . . this ayde prier , is also vsed sometime in the kings behoofe , that there be no proceeding against him , vntill the kings councell be called , and heard to say what they thinke good , for the auoyding of the kings preiudice or losse , touching the cause in hand . for example : if the kings tenent holding in chiefe , be demaunded a rent of a common person , he may pray in ayde of the king . also a citie or borough that hath a fee ferme of the king , any thing being demaunded against them which belongeth the reunto , may pray in ayde of the king , &c. tearms of the law . of this thing you may read the statute ( de big amis . a. . ed. . ca. . . & . & anno . . ed. . stat . . ca. . the civile law in suites begunne betweene two , alloweth a third to come in ( pro interesse ) and he that commeth in for his interrest , commeth either assistendo or opponendo , &c. the former is like to this ( ayde prier ) the other to that which our common lawyers call receyte . looke receyte . aile ( avo ) commeth of the french ( aieul . i. avus ) & signifieth a writ that lieth , where the grādfather or great grandfather called of our common lawyers ( besayle ) but in true french ( bisaieul ) was seised in his demaines as of fee , of any land or tenement in fee simple , the day that he died , and a stranger abateth or entreth the same day , and dispossesseth the heire . fitzh . nat . br . fo . . alderman ( aldermannus ) is borrowed from the saxon ( ealderman ) signifying as much as senator in latine . lamb. in his explica of saxon words . verbo senator . see roger hoveden parte poster . suorum . annal . fo . b. aler sans . iour , is verbatim , to goe without day : the meaning whereof is , to be finally dismissed the courte : because there is no day of farder appearāce assigned , kitchin. fo . . ale-tastor , is an officer appointed in every court leete , and sworne to looke to the assise , and the goodnes of bread and ale or beere , within the precincts of that lordship . kitchin. fo . . where you may see the forme of his oath . alias v. capias alias . alien ( alienare ) commeth of the french ( aliener ) and signifieth as much as to transferre the propertie of any thing vnto another man. to alien in mortmaine , is to make over lands or tenements to a religious companie , or other body politike . stawnf . praero . fo . . looke mortmayn . to alien in fee , isto sel the fee simple of any land or tenement , or of any incorporeall right , west . . ca. . anno . . ed. . alien alias alion ( alienigena ) commeth of the latine ( alienus ) and signifieth one borne in a straunge country . it is ordinarily taken for the contrarie to ( denizen ) or a naturall subiect , that is , one borne in a straunge country , and neuer heere infranchised . broke . denizen . . &c. and in this case , a man born out of the land , so it be within the limits of the kings obedience , beyond the sease , or of english parents , out of the kings obedience ( so the parents at the time of the birth , be of the kings allegiance ) is no alien in account , but a subiect to the king. statute . . a. . ed. . ca. vnico . commonly called the statute , de natis vltra mare . also if one borne out of the kings allegiance , come and dwell in england , his children ( if he beget any heere ) be not aliens , but denizens . termes of the lawe . see denizen . allaye ( allaia ) is vsed for the temper and mixture of siluer and gold , anno . h. . stat. . cap. . & stat. . eiusdem anni , cap. . the reason of which allay is , with a baser mettall to augment the waight of the siluer or gold so much , as may counteruaile the princes charge in the coining . antonius faber de nummariorum debitorum solutionibus , cap. . allocatione facienda , is a writ directed to the lord treasurer , and barons of the exchequer , vpō complaint of some accountant , commaunding them to allow the accountant such sums , as he hath by vertue of his office lawfully and reasonably expended , register . orig . fol. . b. alluminor , seemeth to be made of the french ( allumer , i. accendere , incendere , inflammare ) it is vsed for one that by his trade coloureth or painteth vpon paper or parchment . and the reason is , because he giueth grace , light , and ornament by his colours , to the leters or other figures coloured . you shall find the word , an . . r. . ca. . almaine riuets , be a certaine light kind of armor for the body of a man , with sleeues of maile , or plates of iron , for the defence of his armes . the former of which words , seemeth to shewe the countrie where it was first invented : the other , whether it may come from the french verb ( revestir , 〈◊〉 . superinduere ) to put on vpon another garment , i leaue to farther consideration . almner ( elecmosinarius ) is an officer of the kings house , whose function is , fragmenta diligenter colligere , & ea distribuere singulis diebus egenis : agrotos & leprosos , incarceratos , pauperesque viduas , & alios egenos vagosque in patria commorantes , charitative visitare : item equos relictos , robas , pecuniam , & alia ad eleemosynae largita , recipere & fideliter distribuere . debet etiam regem super eleemosynae largitione crebris summonitionibus stimulare , & praecipuè diebus sanctorum , & rogare ne robas suas quae magni sunt pretii , histrionibus , blanditoribus , adulatoribus , accusatoribus vel menestrallis , sed and eleemosinae suae incrementum iubeat largiri , fleta . lib. . cap. . almoine ( eleemosina . ) see frank almoyne . almond ( amygdalum ) is well knowne to euery mans sight : it is the kirnell of a nut or stone , which the tree in latine called ( amygdalus ) doth beare within a huske in maner of a wal nut , of whose nature , and diuersities , you may reade gerards herball , lib. . cap. . this is noted among merchandize that are to be garbled , anno . iaco. ca. . alnegeor , aliâs , aulnegeor ( vlniger vel vlnator ) cometh from the french ( aulne ) an elle , or elwand , and signifieth an officer of the kings , who by himselfe or his deputie , in places conuenient , looketh to the assise of wollen cloth made through the land , and to seals for that purpose ordained vnto them , an . . ed. . stat. . cap. . anno . r. . cap. . who is accomptable to the king for euery cloth so sealed in a fee or custome therunto belonging , anno . r. . cap. . reade of this more , anno . ed. cap. . anno . r. . cap. . & . anno . h. . cap. . anno . eiusdem . cap. . anno eiusd . cap. . anno . eiusd . cap. . anno . h. . cap. . anno . eiusdem . cap. . anno . ed. . ca. . anno . eiusdem , cap. . & an . . r. . cap. . ambidexter is that iurour or embraceour , that taketh of both parties for the giuing of his verdict . he forfeiteth ten times so much as he taketh , anno . ed. . cap. . cromptons iustice of peace , fol. . b. amendment ( emendatio ) commeth of the french ( amendement ) and signifieth in our common lawe , a correction of an error committed in a processe , and espyed before iudgment . terms of the lawe . broke , titulo amendement per totum . but if the fault be found after iudgment giuen : then is the party that wil redresse it , driuen to his writ of errour . tearmes of the lawe , broke titulo error . amerciament ( amerciamentum ) signifieth the pecuniarie punishment of an offendor against the king or other lord in his court , that is found to be ( in misericordia ) i. to haue offended , and to stand at the mercie of the king or lord. there seemeth to be a difference betweene amerciaments and fines , kitchin fol. . and i haue heard cōmon lawyers say , that fines , as they are taken for punishments , be punishments certaine , which grow expresly from some statute , and that amerciaments be such , as be arbitrably imposed by affeerors . this is in some sort confirmed by kitchin fol. . in these words : ( l'amerciamēt est affire per pares . ) m. manwood in his first part of forest lawes . pag. . seemeth to make another difference , as if he would inferre an amerciamēt to be a more easie , or more mercifull penaltie , and a fine more sharpe and grieuous . take his wordes : if the pledges for such a trespasse ( saith he ) do appeare by common summons , but not the defendant himselfe : then the pledges shall be imprisoned , for that default of the defendant : but otherwise it is , if the defendant himselfe do appeare , and be ready in court before the lord , iustice in eyre , to receiue his iudgment , and to pay his fine . but if such pledges do make default , in that ease the pledges shall be amerced , but not fined , &c. the author of the new tearmes of lawe , saith , that amerciament is most properly a penalty assessed , by the peeres or equals of the partie amercied for an offence done , for the which he putteth himselfe vpon the mercie of the lord. who also maketh mentiō of an amerciament royal , and defineth it to be a pecuniarie punishment laid vpon a sheriffe , coroner , or such like officer of the kings , amercied by iustices for his offence . see misericordia . amoveas manum . looke ouster le r●aiue . an , tour , & waste ( annus , dies , & vastum . ) looke yeare , day , and waste . ancaling of tile , anno . . ed. . ca . annats , ( annates ) seemeth to be all one with first fruites . anno . . h. . ca. . looke , first fruites . the reason is , because the rate of first fruites payed of spirituall liuings , is after one yeares profite . of which folydore virgil , de inuētione rerum , lib. . cap. . saith thus : nullum inuentum m●iores romano pontifici cumulavit opes , quàm annatum ( quas vocant ) vsus , qui omnino multò antiquior est , quàm recētiores quidam scriptores suspicantur . et annates more suo appellant primos fructus vnius anni sacerdatii vacantis , aut danidiam eorum partem . sanè hoc vectigal iam pride , cùm romanus pontifex non habuerit tot possessiones quot nunc habet , & eum oportuerit pro dignitate , pro officio , multos magnosque facere sumptus , paulatim impositum fuit sacerdotiis vacantibus quae ille conferret : de qua quidem re vt gravi , saepe reclamatum fuisse testatur henricus hostiensis , qui cum alexandro . pontifice vixit , sic vt franciscus zabarellus tradat post hac in concilio viennensi , quod clemens quintus indixit ( qui factus est pontifex anno salutis humanae , . ) agitatum fuisse , vt , eo deposito , annatum onere vigesima pars vectigalium sacerdotalium penderetur quotannis romano pontifici , & id quidem frustrà : quare pontifex annatas in sua nassa retinuit , vt ne indidem exire possent : lege caetera . anniented , commeth of the french ( aneantir . i. se abiicere , atque prosternere ) it signifieth with ourlawyers , as much as frustrated or brought to nothing , litlet●n lib. . cap. warrantie . annua pensione , is a writte , wherby the king hauing due vnto him an annuall pension from any abbot or prior for any of his chaplaines , whom he shal think good to name vnto him , being as yet vnprouided of sufficient liuing , doth demaund the same of the said abbot or prior for one , whose name is comprised in the same writ , vntill , &c. and also willeth him , for his chaplaines better assurance , to giue him his leters patents for the same . register orig . fol. . & . & fitzh . nat . br . fol. . where you may see the names of al the abbeyes and priories bound vnto this , in respect of their foundatiō or creation : as also the forme of the leters patents vsually graunted vpon this writ . annuitie ( annuus reditus ) signifieth a yearely rent to be paide for tearme of life or yeres , or in fee , and is also vsed , for the writ that lyeth against a man for the recouerie of such a rent , either out of his land , or out of his cofers , or to be receiued of his person , at a day certaine euery yere , not satisfying it according to the graunt . register . orig . fol. . fitz. nat . br . fol. . the author of the new tearmes of law defineth ( annuitie ) to be a certaine summe of money graunted to another in fee simple , fee taile , for tearme of life , or of yeares , to receiue of the graunter , or his heires , so that no free-hold be charged therewith , whereof a man shall neuer haue assise or other action , but a writ of annuitie . saintgerman in his booke intituled ( the doctor and student ) dialogo primo , cap. . sheweth diuers differences betweene a rent and an annuitie , whereof the first is , that euery rent , be it rent seruice , rent charge , or rent seck , is going out of land : but an annuity goeth not out of any land , but chargeth onely the person : that is to say , the graunter , or his heires that haue assets by descent , or the house , if it be granted by a house of religion , to perceiue of their coffers . the second difference is , that for the recouerie of an annuity , no action lyeth , but onely the writ of annuitie against the graunter , his heires , or successors : but of a rent , the same actions lye as do of land , as the case requireth . the third difference is , that an annuitie is neuer taken for assets , because it is no free-hold in lawe , neither shall be put in execution vpon a statute merchant , statute staple , or elegit , as a rent may . dyer fol. . num . . speaketh also to this effect : annise seede ( semen anisi ) is a medicinall seed not vnknowne , so called of the hearbe anisum , whereof it is the fruite . of this he that listeth may reade gerad● herball li. . ca. . it is noted among the garbleable drugs and spices . anno . . iaco. ca. . anoisance , aliàs noisance , aliàs nusance ( nocumentum ) commeth of the french ( nuisance . i incommodum , noxa ) and hath a double signification , being vsed as well for any hurt done either to a publike place , as ( high way , bridge , or common river ) or to a private , by laying any thing , that may breede infection , by incroaching , or such like means : as also , for the writ that is brought vpon this transgression : whereof see more in nusance . the word ( anoysance ) i finde , anno . h. . ca. . apostata capiendo , is a writ that lyeth against one , that hauing entred and professed some order of religon , breaketh out againe , and wandereth the country , contrarily to the rules of his order . for the abbot or prior of the house , certifying this into the chawncerie , vnder their common seale , and praying this writ directed to the shyreeue for the apprehensiō of such offend our , and for the delivery of him again to his abbot or prior , or their lawful atturney , were wont to obtaine the same . the forme whereof , with other circumstances , you shall finde in the register . orig . fo . . & . and fitzh . nat . br . fo . . c. apparelment , commeth of the french ( pareisement . i. similiter , perinde , itidem ) and signifieth a resemblance : as apparelment of warre . anno . r. . stat . . ca. . appeale ( appellum ) commeth of the french ( appeller . i. accire , accersere , nominare , evocare , clamore aliquem flagitare ) it signifieth in our common lawe , as much as ( accusatio ) with the civilians . for as in the civile lawe , cognisance of criminal causes , is taken either vpon inquisition , denunciation , or accusation : so in ours , vpon indictment or appeale , indictment comprehending both inquisition , and denunciation . and accusation or apeale , is a lawfull declaration of another mans crime ( which by bracton must be felonie at the least in the common lawe ) before a competent iudge , by one that setteth his name to the declaration , and vndertaketh to prooue it , vpon the penaltie that may ensue of the contrary . to declare the whole course of an appeale , weare to much for this treatise . wherefore for that , i must referre you to bracton . li. . tract . . ca. . cum sequent . britton . ca. . . . . and to s. thomas smith . li. . de repub . anglo . ca. . and lastly to stawnf . pl. cor . li. . ca. . . &c. vsque . an appeale is commenced two waies : either by writte , or by bill . stawnf . vbi supra fo . . and it may be gathered by him . fo . . that an appeale by writ is , when a writ is purchased out of the chauncerie by one to another to this ende , that he appeale a third of some felonie committed by him , finding pledges that he shall doe it , and deliuer this writ to the shyreeue to be recorded . appeale by bill is , when a man of himselfe giueth vp his accusation in writing to the vicount or coroner , offering to vndergoe the burden of appealing another therein named . this pointe of our lawe , among others , is drawne from the normans , as appeareth plainly by the grand custumarie . ca. . where there is set downe a solemne discourse of both the effects of this appeale . viz. the order of the cōbate , & of the tryall by enquest : of which by the common lawe of england , it is in the ioyce of the defendant , whether to take . see the newe booke of entrise . verbo appel . & the booke of assises . fo . . appel . appeale of mahem ( appellum mahemij ) is an accusing of one that hath maymed another . but that being no felony , the appeale thereof is but in a sort , an action of trespas : because there is noe thing recouered but dammages . bracton calleth this ( appellum de plagis & mahemio ) and writeth of it a whole chapter . li. . tract . . ca. . see s. ed. cook. . vol. fo . . a. appeale of wrong imprisonment ( appellum de pace & imprisonamento ) is vsed by bracton , for an action of wrong imprisonment , whereof he writeth a whole itactat . li. . tractat . . ca. . appeale ( appellatio ) is vsed in our common law diuers times , as it is taken in the civile lawe : which is a remouing of a cause from an inferiour iudge to a superiour as appeale to rome . an . . h. . ca. . & an . . elix . ca. . but it is more cōmonly vsed , for the priuate accusation , of a murderer by a party , who had interest in the partie murdered or of any felon by one of his complices in the fact . see approver . appendant ( appendens ) is any thing belonging to another , as accessorium principali , with the civilians , or adiunctum subiecto , with the logicians . an hospitall may be appendant to a maner . fitzh . nat . br . fo . . common of fishing appendant to a free hold . westm . . ca. . anno . . ed. . appertinances ( pertinentiae ) commeth of the french ( appartenir . i. pertinere ) it signifieth in our common lawe , things both corporal , belonging to another thing , as to the more principal : as hamlets to a chiefe maner , common of pasture , turbarie , piscarie , and such like ; and incorporeal , as liberties and services of tenents . brit. ca. . where i note by the way , that he accounteth common of pasture , turbarie , and piscary , to be things corporal looke common . apporcu●●ent ( apportion 〈…〉 tū ) is a dividing of a rent into parts , according as the land , whence the whole rent issueth , is divided among two or more . see the new termes of lawe . apprentice ( apprenticius ) commeth of the french ( aprenti . i. tyro & rudis discipulus ) or of the verb ( apprendre . i. addiscere , discere ) and signifieth with vs , one that is bound by couenant in word or writing , to serue another man of trade for certaine yeares , vpon condition , that the artificer or man of trade , shall in the meane time endeavour to instruct him in his art or misterie . s. thomas smith , in his booke de rep . ang. li. . ca. . saith , that they are a kinde of bond men , differing onely , in that they be seruants by couenant and for a time . of these you may reade divers statutes made by the wisedome of our realme which i thinke superfluous heere to mention . appropriation ( appropriatio ) proceedeth from the french ( approprior . i. apeare , acc 〈…〉 re ) and properly signifieth , in the lawe of england , a severing of a benefice ecclesiasticall ( which originally and in nature is , iuris diuini & in p 〈…〉 nullius ) to the proper and perpetuall vse of some religious house or deane , &c. and chapter , bishop rick or colledge . and the reason of the name i take to be this : because that whereas persons ordinarily be not accounted ( domini ) but ( vsufructuarij ) hauing no right of fee simple . littleton . titulo discontinuance : these , by reason of their perpetuitie , are accounted owners of the fee simple , and therefore are called proprietarij . and before the time of richard the second , it was lawfull ( as it seemeeth ) simply , at the least by mans lawe , to appropriate the whole fruites of a benefice to an abbey or priory , they finding one to serue the cure . but that king made so euill a thing more tolerable by a lawe , whereby he ordeined , that in euery licence of appropriation made in chauncerie , it should expresly be contained , that the diocesan of the place should prouide a conuenient summe of money yearely to be paide out of the fruites , toward the sustenance of the poore in that parish , and that the vicar should be well and sufficiently endowed . anno . . rich. . ca. . touching the first institution , & other things worth the learning about appropriations , reade plowden in grendons case . fo . . b. & seqq . as also the new termes of lawe , verbo appropriation . to an appropriation , after the licence obteined of the king in chauncerle , the consent of the diocesan , patron , and incumbent are necessarie , if the church be full : but if the church be voide , the diocesan and the patron vpon the kings licence may conclude it . plowden vbi supra . to dissolue an appropriation , it is enough to present a clerke to the bishop . for , that once done , the benefice returneth to the former nature . fitzh . nat . br . fo . . 〈◊〉 . approvour ( approbator ) commeth of the french ( approuver . i. approbare , comprobare , calculum albo adijcere ) it signifieth in our common law , one that cōfessing felony of him self , appealeth or accuseth another , one or more , to be guilty of the same ; & he is called so , because he must prooue that which he hath alleadged in his appeale . stawnf . pl. cor . fo . . and that proofe , is by battell or by the countrey , at his election that appealed . the forme of this accusation , you may in part gather by m. cromptons iustice of peace . fo . . & . that it is done before the coroner , either assigned vnto the selon by the court , to take and record what he saith , or els called by the felon himselfe , and required for the good of the prince & common wealth , to record that which he saith , &c. the oath of the approuer , when he beginneth the combate , see also in crompton in the very last page of his booke , as also the proclamation by the herald . of the antiquity of this law , you may reade something in horns myrror of iustices , l. . in fine cap. del office del coroner . of this also see bracton more at large , lib. . tract . . cap. . & . and stawnf . pl. cor . lib. . cap. . cum seq . approuers of the king ( appruatores regis ) be such as haue the setting of the kings demeasne● in smal manors to the kings best aduantage , anno . h. . stat . . see approue . approue ( appruare ) commeth of the french ( approuer , i. approbare , comprobare , calculum albo adiicere ) it signifieth in the common lawe to augment , or ( as it were ) to examine to the vttermost . for example : to approue land , is to make the best benefite thereof by increasing the rent , &c. so is the substantiue ( approuement ) vsed in cromptons iurisd . fol. . for the profits them selues . so is it likewise in the statute of merton cap. . anno . h. land newly approued , old. nat . br . fol. . so the sheriffes called themselues the kings approuers , anno . ed. . cap. . which is as much in mine opinion as the gatherers or exactors of the kings profits . and anno . h. . cap. . bailiffes of lords in their franchises be called their approuers . but anno . ed. . cap. . approuers be certaine men especially sent into seuerall counties of the realme , to increase the fermes of hundreds and wapentakes , which formerly were set at a certaine rate to the sheriffes , who likewise dimised them to others , the countie court excepted . approuement ( appruamentum ) see approue . see the register iudiciall . fol. . br . & . a. see the new tearmes of lawe , verbo ( approuement . ) arbitratour ( arbiter ) may be taken to proceede from either the latine ( arbitrator , ) or the french ( arbitre ) it signifieth an extraordinarie iudge in one or moe causes , betweene party and partie , chosen by their mutuall consents , west . parte . symb. titulo compromise . sect. . who likewise diuideth arbitrement , into generall , that is , including all actions , quarels , executions , and demands , and special , which is of one or moe matters , facts , or things specified , eodem sect . . . . t 〈…〉 vilians make a difference betweene ( arbitrum & arbitratorem ) l. . Π. pro socio . for though they both ground their power vpon the compromise of the parties : yet their libertie is diuers . for arbiter is tyed to proceede and iudge according to lawe with equitie mingled : arbitrator is permitted wholy to his owne discretion , without solemnitie of processe , or course of iudgement , to heare or determine the controuersie committed vnto him , so it be iuxta arbitrium boniviri . arches court ( curia de arcubus ) is the chiefe and auncientest cōsistorie , that belongeth to the archbishop of canterburie , for the debating of spiritual causes : and is so called of the church in london dedicated to the blessed virgin , commonly called bow church , where it is kept . and the church is called bow church of the fashion of the steeple or clocher thereof , whose toppe is raised of stone pillars builded arch-wise , like so many bent bowes . the iudge of this court , is termed the deane of the arches , or the officiall of the arches court . deane of the arches , because with this officialtie , is commonly ioyned a peculiar iurisdiction of thirteene parishes in london tearmed a deantie , being exempted from the authoritie of the bishop of london , and belonging to the archbishop of canterburie : of which the parish of bow is one & the chiefe , because the court is there kept . some others say , that he was first called deane of the arches , because the officiall to the archbishop , being many times employed abroad , in ambassages for the king and realme , the deane of the arches was his substitute in his court , and by that meanes the names became confounded . the iurisdiction of this iudge is ordinarie , and extendeth it selfe through the whole prouince of canterburie . so that vpon any appeale made , he foorthwith , and without any farder examinatiō of the cause , sendeth out his citation to the party appealed , and his inhibition to the iudge , from whome the appeale is made . of this he that will , may reade more in the booke intituled . de antiquitate eccelesiae britānicaehistoria . arma moluta , seeme to be sharpe weapons that doe cut , & not blunt that doe onely breake or bruise . bracton . li. . tract . . ca. . & stawnf . pl. cor . fo . . & . whereof bracton hath these words : arma moluta plagam faciunt , sicut gladius , bisacuta , & huiusmodi : ligna verò & lapides brusuras , 〈…〉 bes , & ictus , qui iudicari non possunt ad plagam ad hoc , vt inde veniri possit ad duellum . armour ( arma ) in the vnderstanding of our common lawe , is extended to any thing , that a man in his anger or furie taketh into his hand , to cast at or strike another . cromptons iustice of peace . fo . . a. so , armorum appellatio , non vtique scuta & gladios & galeas significat , sed & fustes & lapides . l. . Π. de verbo . significatione . array ( arraia , aliàs arraiamentum ) commeth of the french ( array . i. ordo . ) which is an old word out of vse : or it may be well deduced from ( raye . i. linea ) it signifieth in our commō lawe , the ranking or setting forth of a iurie or enquest of men impaneled vpō a cause . a. . h. c. . thence is the verb to array a panel . owld . nat . br . fo . . that is , to set forth one by another , the men empaneled . the array shal be quashed . owld . nat . br . fo . . by statute , every array in assise , ought to be made foure daies before . broke . titulo panel . nu . . to chalenge the array . kitchin. fo . . arreyers , seemeth to be vsed in the statut . anno . . rich. . ca. . for such officers , as had care of the souldiers armour , to see them duly appointed in ther kindes . arraine ( arraniare ) commeth of the french ( arranger . i. astituere , ordinare , ) that is , to set a thing in order , or in his place , and the same signification it hath in our common law . for example , he is saide to arraine a writ of novel disseisin in a countie , that fitteth it for triall , before the iustices of that circuit . owld nat . br . fo . . litleton . fo . . vseth the same word in the same sence . viz. the lease arraineth an assise of nouel disseisin . also a prisoner is said to be arrained , where he is indighted and brought forth to his triall . arrained within the verge vpon murder . stawnf . pl. cor . fo . . the course of this arrainment , you may read in s. thomas smith . de repub . anglo . li. . ca. . arrearages ( arreragia ) commeth of the french ( arrierages . . reliqua ) it signifieth the remaine of an account , or a summe of mony remaining in the hands of an accoūtant . it is vsed sometime more generally , for any mony vnpaide at the due time : as arrearages of rent . that this word is borowed from france , it appeareth by tiraquel de vtroque retractu . tomo . . pa. . nu . . arrest ( arestum ) commeth of the french ( arrester . i. retinere , retare , subsistere ) or rather , it is a french word in it selfe , signifying a setling , stop , or stay , and is metaphorically vsed for a decree or determinatiō of a cause debated or disputed to and fro , as ( arrest du senat. i. placitum curiae ) in our comon law , it is taken most of all for a stay or stoppe : as a man apprehended for debt , &c. is said to be arrested . to pleade in arrest of iudgment , is to shew cause why iudgment should be stayed , though the verdict of the . be passed . to plead in arrest of taking the enquest vpon the former issue , is to shew cause why an enquest should not be taken , &c. broke . tit . repleder . take this of learned m. lambard in his eirenarch . li. . ca. . pa. . budae . ( saith he ) in his greeke commentaries is of opinion , that the french word ( arrest ) ( which with them signifieth a decree or iudgment of court , tooke beginning of the greeke ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. placitum ) and as we might say , the pleasure and will of a court . and albeit it were not out of the way to think that it is called an arrest , because it stayeth or arresteth the partie : yet i beleeue rather , that we receiued the same from the normane lawes , because we vse it in the same sence with thē . for commonly with vs , au arrest is taken for the execution of the commaundement of some court , or of some officer in iustice . but howsoeuer the name began : an arrest is a certaine restraint of a mans person , depriuing him of his owne will and libertie , and binding it to become obedient to the will of the lawe . and it may be called the beginning of imprisonment . precepts & writs of the higher courts of lawe , do vse to expresse it by two sundry words : as ( capias ) and ( attachies ) which signifie to take or catch hold of a man. but this our precept noteth it by the words ( duci facias ) that is , cause him to be conueyed , &c. for that the officer hath ( after a sort ) taken him before , in that he commeth vnto him , and requireth him to go to some iustice of the peace . thus farre m. lamberd . and by like this word is spred farder then france . for gaile a germaine writer sheweth by his tractate ( de arrestis imperii ) that it is vsed also in the imperiall territories , & in the same significatiō , c. . n. . arrestandis bonis ne dissipentur , is a writ which lyeth for him , whose catell or goods are taken by another , that , during the controuersie , doth , or is like to make them away , and will be hardly able to make satisfaction for thē afterward , reg. orig . fol. . b. arrestando ipsum qui pecuniam recepit ad proficiscendum in obsequium regis , &c. is a writ that lieth for the apprehension of him , that hath taken prest money towards the kings warres , and lieth hidden when he should goe . register . orig . . b. arresto facto super bonis mercatorum alienigenorum , &c. is a writ that lyeth for a denizen against the goods of strangers of any other countrie , found within the kingdome , in recompence of goods taken frō him in the said countrie , after he hath hene denied restitution there . register . orig . fo . . a. this among the aūciēt civilians was called ( clarigatio ) now barbarously ( represali 〈…〉 arretted ( arrectatus ) is he that is conuented before a iudge , and charged with a crime . stawnf . pl. cor . lib. . . quasi ad rectum vocatus . it is vsed somtime , for ( imputed or laid vnto ) as , no folly may be arretted to him being vnder age . litleton cap. remitter . the latine substantiue ( rettum ) is vsed in the register orig . chawcer vseth the verb ( arretteth ) id est , layeth blame , as m. speight interpreteth it . i may probably coniecture , that this word is the latine ( rectum . ) for bracton hath this phrase ( ad rectum habere malefactorem ) i. to haue the malefactor foorth coming : so as he may be charged , and put to his triall . lib. . tract . . cap. . and in another place ( rectatus de morte hominis ) i. charged with the death of a man , eod . cap. . num . . articles of the cleargie ( articuli cleri ) be certaine statutes made touching persons and causes ecclesiasticall , anno . ed. . like vnto which there were other made , anno . ed. . stat . . assay of measures and waights ( assaia mensurarum & ponderum ) register . orig . fol. . is the examination vsed by the clerke of the market . assayer of the king , is an officer of the mint , for the due triall of siluer , indifferently appointed betwixt the maister of the mint , and the merchants that bring siluer thither for exchange . anno . h. . cap. . assault , in sultus , commeth of the french verb ( assailir . i. adormi , appetere , invadere ) which french also proceedeth from the latine ( assilire . i. vim afferre , oppugnare . ) it signifieth in our common lawe , a violent kind of iniurie , offered to a mans person , of a higher nature then batterie . for it may be committed by offering of a blowe , or by fearefull speech . m. lamberd in his eirenar . lib. . cap. . whome reade . the feudists call this ( assultum ) and define it thus : assultus , est impetus in personam aut locum , fiue hoc pedibus fiat vel equo , aut machinis , aut quacunque alia re assiliatur . zasius de feud . parte . nu . . and ( assilire ) est , vim adferre , adoriri , oppugnare , li. feud . . tit . . § . . assach , seemeth to be a welch word , and to signifie so much , as a kind of excuse , or strange kind of purgation by the oathes of three hundred men . anno . h. . cap. . assart ( assartum ) in m. manwoods iudgement , parte . . ca. . ru . . of his forest lawes , commeth of the french ( assortir ) signifying ( as he saith ) to make plaine , or to furnish ; but rather indeede , to set in order and handsomly to dispose . assartum est , quod redactum est ad culturam . fleta . li. . ca. . § . item respondere . it signifieth , as the said m. manwood saith . nu . . vbi supra , an offence committed in the forest , by plucking vp those woods by the rootes , that are thickets or coverts of the forest , and by making them plaine , as eatable land , where he also faith , that an assart of the forest , is the greatest offence or trespasse of all other , that can be done in the forest , to vert or venifon , containing in it as much as waste or more . for whereas the waste of the forest , is but the felling and cutting downe of the couerts , which may grow againe in time : an assart , is a plucking them vp , &c. which he confirmeth out of the redde booke in the exchequer , in these words : assarta verò , occasiones nominantur , quando sc : forestae nemora vel dumeta , pascuis & latibulis ferarum oportuna , succiduntur : quibus succisis & radiciti● avulsis , terra subvertitur & excolitur . and again out of the register originall . fo . . a. b. in the writ ( ad quod damnum ) sent out in case , where a man sueth for a licence , to assart his grounds in the forest , and to make it severall for tillage . soe that it is no offence , if it be done with licence . to this , may bracton also be added . li. . ca. . nu . . where he saith , that these words ( boscus es●icitur assartum ) signifie as much , as ( redactus in culturam ) of this you may read more in cromptons iurisdictions . fo . . and in charta de foresta , anno . . h. . ca. . where the english word is not ( assart ) but assert , & in manwood , parte . . of his forest lawes . pa. . the word is vsed . anno . . ed. . stat . . in the same signification . that which we call ( assartum ) is els where tearmed disboscatio . decis . genu. . assembly vnlawfull , ( illicita assemblata ) cōmeth of the french ( assembler . i. aggregare ) whence also is the substantiue ( assemblee . i. coitio , congregatio ) it is in our common lawe ( as m. lamberd defineth it , eiren . li. . ca. . ) the companie of . persons ( or more ) gathered together to doe an vnlawfull act , although they doe it not . see vnlawfull assemblie . assets ( quod tantundem valet ) bract. li. . tract . . ca. . nu . . is nothing but the french ( assez . . satis ) for though this word masque vnder the vizard of a substantiue , it is in truth but an adverb . it signifieth in our common lawe , goods enough to discharge that bruden , which is cast vpon the executour or heire , in the satisfying of the testators or auncestors debts or legacies . see brooke , titulo assets per discent : by whome you shall learne , that whosoeuer pleadeth assets , sayeth nothing , but that he against whome he pleadeth ; hath enough descended or come to his hands , to discharge that which is in demaūd . the author of the newe tearmes of lawe , maketh . . sorts of assets , viz. assets par discent , & assets enter mains . the former , being to be alleaged against an heire , the other , against an executor or administrator . assigne ( assignare ) both it selfe , and the french ( assigner ) come of the latine . it hath two significations : one generall : as to appoint a deputè , or to set ouer a right vnto another . in which signification , britton . fo . . saith this word was first brought into vse , for the fauour of bastards ; because they cannot runne vnder the name of heires to their fathers , and therefore were , & are comprised vnder the name of ( assignees ) the other signification of this word is especial , as to appointe at , or set forth . viz. to assigne errour . old . br . nat . fo . . is to shew in what part of the proces errour is committed . to assigne false iudgement . eodem . fo . . that is , to declare how and where the iudgement is vniust . to assigne a false verdict . eodem . fo . . and to assigne an oath to be false . anno . . r. . ca. . to assigne the cessor , old . nat . br . fo . . . to shew how the plaintife had cessed , or giuen ouer . to assigne wast , is to shewe , wherein especially the wast is cōmitted . reg. orig f. . assigne , in the generall signification is vsed . anno . ed . & anno . h. . cap. . in these words : iustices assigned to take assises . and the substantiue ( assignement ) hath the same signification . wests symb . parte . lib. . sect . . & seq . in which maner is also vsed the adiectiue ( assignee , assignatus ) viz. for him that is appointed or deputed by another to do any act , or performe any businesse , or enioy any commoditie . and an assignee may be either in deed , or in law . assignee in deed , is he that is appointed by a person , an assignee in lawe is he , whom the lawe so maketh without any appointment of the person . v. dyer fol. . num . . perkins in grauntes saith , that an assignee is he , that occupieth a thing in his owne right , and deputè , he that doth it in the right of another . assise ( assisa ) commeth of the french ( assise ) which in the grand custumarie of normandy , cap. . is defined to this effect . assise is an assembly of knights and other substantiall men , with the bailiffe or iustice in a certain place , and at a certaine time appointed . and againe , cap. . assise is a court , in the which whatsoeuer is done , ought to haue perpetuall strength . this normane word ( assise ) commeth of the french ( asseoir . ● . collocare ) to settle or bestow in some place certaine : as ( s●asseoir ) is to sit downe by another . and metaphorically it is vsed of things incorporeall : as ( asseoir son iugement sur quelque lieu ) is , interponere iudicium suum . of this verbe commeth the participle ( assis ) as ( estre assis ) i. sedere . and this participle in the grand custumarie of normandie , cap. . is vsed , as we would say : appointed , limited , or determined , viz. ( au iour qui est assis à faire la battaille , se doibuent les champions offrir á la iustice ) that is : at the day which is appointed for the combat , the champions ought to offer themselues to the iustice . so that by all these places compared together , it is euident whence the original of this word ( assise ) floweth . how diuersly it is vsed in our common lawe , it followeth that we declare . first litleton in the chapter , rents . saith , that it is aequivocum : where he setteth downe three seuerall significations of it : one , as it is taken for a writ : another , as it is vsed for a iurie : the third , as for an ordinance . and him , he that listeth , may reade more at large . my collections haue serued me thus : first ( assise ) is taken for a writ directed to the shyreeue , for the recouerie of possession of things immoueable , whereof your selfe , or your auncestor haue bene disseised . and this is as well of things corporall as incorporeall rights , being of foure sorts : as here they follow in their order . assise of novel disseisin ( assisa nova disseisina ) lyeth where a tenent in fee-simple , fee-taile , or for tearme of life , is lately disseised of his lands or tenements , or else of a rent seruice , rent seck , or rent charge , of common of pasture , of an office , of tolle , tronage , passage , pownage , or for a nusance leuied , and diuers other such like . for confirmation whereof , you may reade glanvile lib. . cap. . bracton lib. . tract . . per totum . britton . cap. . & seqq . register orig . fol. . fitz. nat . br . fol. . . . new booke of entries . fol. . col . . west . . cap. . anno . ed. . and to this may aptly be added the bill of fresh force ( friscae fortiae ) which is directed to the officers or magistrates of cities or townes corporate , being a kinde of assise for recovery of possession in such places within . daies after the force , as the ordinarie assise is in the countie . fitzh . nat . br . fo . . c. this the civilians call , iudicium possessorium recuperandi . assise of mort d' auncester ( assisa mortis antecessoris ) lyeth , where my father , mother , brother , sister , vncle , aunte , &c. died seised of lands , tenements , rents , &c. that he had in see simple , and after his death a straunger abateth : an it is good , as well against the abatour , as any other in possession . how likewise this is extended , see bracton . li. . tract . . per totum . britton . ca. . cum multis sequent . fitzh . nat . br . fo . . register . orig . fo . . this the civilians call , iudicium possessorium adipiscendi . assise of darrein presentment ( assisa vltima praesentationis ) lieth , where i , or mine auncestor haue presented a clerke to a church , and after ( the church being voide by the death of the said clerke or otherwise ) a straūger presenteth his clerke to the same church , in disturbance of me . and how otherwise this writ is vsed ; see bracton . li. . tract . . register . orig . fo . . fitzh . nat . br . fo . . assise de vtrum ( assisa vtrum ) lieth either for a parson against a lay man , or a lay man against a parson , for land or tenement doubtfull , whether it be lay see , or free almes . and of this , see bracton . li. . tract . . cap. . & seqq . brit. ca. . the reason why these writs be called assises , may be diuers . first , because they settle the possession , and so an outward right in him that obteineth by them . secondly , they were originally spedde and executed at a certaine time and place formerly appointed . for by the norman law , the time and place must be knowne . daies before the iustices sate of them : and by our lawe , there must be likewise . daies of preparation , except they be tried in those standing courts of the king in westminster : as appeareth by fitzh . nat . br . fo . . d. e. lastly , they may be called assises , because they are tried most commonly by especial courts , set & appointed for the purpose : as may be well proved not onely out of the custumarie of normandie , but our bookes also : which shew , that in auncient times , iustices were apointed by especiall commission , to dispatch controversies of possession , one or more , in this or that onely countie , as accasion fell out , or disseisins were offered , & that as well in terme time , as out of terme : whereas of later daies , wee see that all these commissions of asseses , of eyre , of oyer & terminer , of gaol deliuerie , and of nisi prius , are dispatched all at one time , by two severall circuits in the yeare ; out of terme , and by such as haue the greatest sway of iustice , being al of them , either the kings ordinarie iustices of his benches , sergeants at the lawe , or such like . assise , in the second signification ( according to litleton ) is vsed for a iurie . for ( to vse his owne example ) it is set downe in the beginning of the record of an assise , of novel disseisin . assissa venit recognitura ; which is as much to say , as iuratores veniunt recognituri . the reason why the iurie is called an assise , he giueth to be this : because by the writte of assise , the shyreeue is commaunded , quòd faciat duodecim liberos & legales homines de viceneto &c. videre tenementum illud , & nomina eorum imbreviari , & quod summoneat eos per bonas summonitiones , quòd sint coram iustitiarijs , &c. parati inde facere recognitionem , &c. this is ( as if he should haue spoken shorter ) metonymia effecti . for they are called the assises , because they are summoned by vertue of the writ so termed . and yet the iurie summoned vpon a writ of right , is likewise called the assise , as himself there confesseth : which writ of right is not an assise . but this may be said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or abusiuely so tearmed . assise , in this signification , is diuided in magnam & paruam . glanvile lib. . ca. . . &c. and britton . c. . where it appeareth , wherein the great assise differeth from the petit assise : whome i wish to be read , by those that would be furder instructed in this point . for this place , thus much in short . the former . kindes of assises vsed in actions only possessory , be called petit assises , in respect of the graund assise . for the law of feese is groūded vpon two rights : one of possession , the other of propertie : and as the grand assise serueth for the right of property , so the petit assise serueth for the right of possession . horns myrror of iustices , lib. . cap. de novel . disseisin . assise in the third signification according to litleton , is an ordinance or statute : as the statute of bread and ale made , anno . h. is termed the assise of bread and ale ( assisa panis & ceruiciae , regist . orig . fol. . b. the assise of clarendon , ( assisa de clarendon ) wherby those that be accused of any hainous crime , and not able to purge themselues by fire and water , but must abiure the realme , had libertie of . daies to stay , and trie what succour they could get of their friends , toward their sustenance in exile . stawnf . pl. cor . fol. . out of bracton li. . tract . . cap. . num . . of this also roger hoveden maketh mention , and more particularly then any that i haue read , parte poster . suorum annalium , fol. . b. in henrico secundo . assise of the forest , ( assisa de foresta ) which is a statute or constitution touching orders to be obserued in the kings forest . manwood parte . . of his forest lawes , pag. . crompton in the court of the iustices of the forest per totum , fol. . & seq . and the assise of the king , anno . . ed. . stat . . called the statute for view of francke pledge . and these be called assises , because they set downe and appoint a certaine measure , rate , or order in the things which they concerne . of assise in this signification doth glanvil also speake , lib. . cap. . in fine . generaliter verum est quod de quolibet placito quod in comitath deducitur & terminatur , misericordia quae inde prouenit , vicecomiti debetur : quae quanta sit , per nullam assisam generalem determinatum est . and thus much touching litletons diuisiō . but if we marke well the writers of the lawe , we shall find this word ( assise ) more diuersly vsed , then this author hath noted . for it is vsed sometime for the measure or quantity it selfe , ( and that per metonymiam effecti ) because it is the very scantline described or commaunded by the ordinance : as for example we say , when wheate , &c. is of this price , then the bread , &c. shall be of this assise . this word is furder taken , for the whole processe in court vpon the writ of assise , or for some part therof , as the issue or verdict of the iury. for example , assises of new disseisin , &c. shall not be taken , but in their shires , and after this maner , &c. mag . char . cap. . and so it seemeth to 〈…〉 nifie , westm . . cap. . anno . ed. . in these words : let the disseisiours alledge no false exceptions , whereby the taking of the assises may be deferred , &c. and anno . ed. . stat . . if it be found by assise : the assise in arrained : to averre by the assise : the assise by their default shal passe against them : and also an . . h. . cap. . assises awarded by default of the tenents , &c : lastly , by merton , cap. . anno . h. . certified by the assise , quite by the assise , &c. and in this signification , glanvile calleth it , magnam assisam domim regis : quae ex duodecim ad minus legalium hominum sacramentis consistit . lib. . cap. . bracton vseth it in like sort : as assisa cadit in transgressionem . lib. . cap. . & assisa cadit in perambulationem . codem . cap. . num . . fleta defineth an assise in this signification , thus : assisa in iure possessorio , est quaedam recognitio duodecim hominum iuratorum , per quam iusticiary certiorantur de articulis in breui contentis . an assise also thus signifying , is said sometime to passe , ( per modum assisae ) and sometime in modum 〈…〉 ata . in maner of an assise , when onely the disseisin in question , is put to the trial of the twelue in maner of a iurie , when as any exception is obiected to disable the interest of the disseisee , and is put to be tryed by the twelue , before the assise can passe . as for example : quaestio status , causa successionis , causa donationis , pactum siue conditio vel cōnentio , voluntas & dissimulatio , transactio , vel quietaclamatio vel remissio , confirmatio siue consensus , propria vsurpatio rei propriae , difficultas iudicij , iustum iudicium , finis , chirographum , intrusio in rem alienam , vel disseisina , si in continenti reijciatur , negligentia quae per transitum temporis excludit actunem . fleta . lib. . cap. . § . . whome reade also to this point , cap. . § . siautem à domino : and at large , cap. . eiusdem libri . & lib. . cap. . § . item . vertitur assisa & seq . and note that assise in this signification , is taken foure waies , old nat . br . fol. . the first , is assise at large , which is taken aswell vpon other points , as vpon the disseisin . for example , where an infant bringeth an assise , and the deed of his auncestor is pleaded , whereby he claimeth his right or foundeth his title : then the assise shall be taken at large : that is , the iurie shall enquire , not only whether the plaintiffe were disseised or not by the tenent , but also of these other points : viz. whether his auncestor were of full age , of good memorie , and out of prison , when he made the deed pleaded . another example out of kitchin , fol. . the tenent pleadeth a forraine release , in barre to an assise , whereupon the cause was adiourned . at the day the tenent maketh default . therefore the assise was taken at large : that is , not onely whether the plaintiffe were disseised , but also whether there be any such forraine release . a third example you may reade in litleton . cap. estates vpon condition . the second maner of assise in point of assise ( assisa in modum assisae ) which is , when the tenent , as it were , setting foote to foot with the demandant , without furder circumstance , pleadeth directly contrarie to the writ , no wrong , no disseisin . the third manner is , assise out of the point of assise ( assisa extra assisam , vel in modum iuratae . ) viz. when the tenent alledgeth some by exception , that must be tried by a iurie , before the principall cause can proceed : as if he pleade a foreine release , or foreine mater tryable in another countie . for in this case , the iustices referre the record to the court of common plees , for the triall of the foreine plee , before the disseisin can come to be discussed . of this sort reade diuers other examples in bracton , lib. . part . . cap. . for there be of them ( as he saith ) and britton also , cap. . both dilatorie and peremptorie . the fourth and last manner is : assise of right of dammages , and that is , when the tenent confessing a putting out , and referring it to a demurter in lawe , whether it were rightly done or not , is adiudged to haue done wrong . for then shall the demandant haue a writ to recouer dammages , which is called assise to recouer dammages , as also the whole processe . assise , is further taken for the court , place , or time , where and when the writs and processes of assise be handled or taken . and in this signification assise is generall : as when the iustices passe their seuerall circuits , euery couple with their commission , to take all assises twice in the yeare . for he that speaketh of any thing done , at that time , and in that place , will commonly say , that it was done at the generall assise . it may likewise be speciall , in this signification : as if an especiall commission should be granted to certaine ( as in ancient times they often were , bracton . lib. . cap. . in fine ) for the taking of an assise vpon one disseisin or two : any thing done in the court before them , a man would say , it was done at such an especiall assise . and in this very signification doth glanvil vse it , lib. . cap. . in these words : si contra dominum suum & non infra assisam , tunc distringitur ipse occupator , &c. and lib. . cap. . in these words : cum quis itaque infra assisam domini regis . i. infra tempus à domino rege de consilio procarum ad hoc constitutum , quod quandoque maius , quandoque minus censetur , alium iniustè & sine iudicio disseisiver 〈…〉 , &c. of this word assise , you may reade in m. skene , de verbo . signif . verbo . assise , and by him vnderstand , that in scotland also it is diuersely vsed , viz. in . seuerall significations . and touching the fifth signification , he hath these words : an assise is called a certaine number of men lawfully summoned , receiued , sworne and admitted to iudge and discerne in sundrie civil causes , syke as perambulations , cognitions , molestations , pourpresture , division of lands , seruing of brieues , and in all and sundrie criminall causes decided and tried by an assise : whereof there are two kinds : one ordinarily in vse , which may be called a litle assise of the number of . or persons : the other , called a great assise , which consisteth of . persons , &c. the rest is very worthe the reading . assisa continuanda , is a writte directed to the iustices assigned to take an assise , for the continuance of the cause , in case where certaine records alleaged , cannot in time be procured by the party that would vse it . reg. orig . f. . assisa proroganda , is a writ directed to the iustices of assise , for the stay of proceeding , by reason of the kings buisnes , wherein the partie is imploied . register . orig . fo . . and fo . . association ( associatio ) is a patent sent by the king , either of his owne motion , or at the suite of the plaintife , to iustices appointed to take assises of novel disseisin , or of oyer and terminer , &c. to take others vnto them as felowes and collegues in that busines . the dirivation is plaine : the examples , and sundrie vses hereof you may finde , in fitz● . nat . br . fo . . e. & fo . b. but more particularly in the reg. orig . f. . . . . . . . assoile ( absolvere ) commeth of the french ( absouldre ) and signifieth to deliuer or set free from an excommunication . stawnf . pl. cor . fo . . in words to this effect : otherwise the defendāt should remaine in prison , vntill the plaintiffe were assoyled , that is , deliuered from his excommunication . assumpsit , is a voluntarie promise made by word , whereby a man assumeth or taketh vpon him to performe or pay any thing vnto another . this word containeth any verball promise made vpon consideration , which the civilians expresse by divers words , according to the nature of the promise , calling it sometime pactum , sometime sponsionē , sometime promissionem , pollicitationem or constitutum , the word seemeth to be drawne from the latine ( assumptio ) quae significat professionem . l. Π. ad municipalem . attache ( attachiare ) cōmeth of the french ( attacher . i. figere , nectere , illigare , defigere , alligare . ) in our common lawe it signifieth , to take or apprehend by commaundement or writte . and m. lamberd in his eirenarch . li. . cap. . maketh this difference betweene an arrest and an attachement , that an arrest proceedeth out of lower courts by precept , and an attachment out of higher courts by precept or writ : and that a precept to arrest hath these formall words ( duci facius &c ) and a writ of attachment these words : ( praecipimus tibi quòd attachies talem , & habeas eum coram nobis &c. whereby it appeareth , that he which arresteth , carieth the party arrested to another higher person to be disposed of forth with , he that attacheth , keepeth the party attached , and presenteth him in court at the day assigned in attachement . yet i obserue out of master kitchin , that an attachement issueth out of a court baron , which is a lowe court . cap : attachment in court baron , fo . . another difference there is , that an arrest lieth onely vpon the body of a man , and an attachement some time vpon his good , as shal be shewed in the sequele . it may be likewise asked how an attachement and a ( capias ) doe differ : & how an attachement and a ( cape ) and an attachement and a distresse . first that an attachement differeth from a ( capias ) it appeareth by kitchin in these words : fo . . note that in a court baron a man shal be attached by his goods ; and a ( capias ) shall not goe out thence . wherby i gather , that an attachement is more generall , taking hold of a mans goods , and a ( capias ) of his body onely . then an attachement differeth from a ( cape ) in this , because a ( cape ) be it ( cape magnum ) or ( cape parvum ) taketh hold of immoveables , as lands or tenements , and are properly belonging to action reall : as you may gather out of their formes , in fitzh . nat . br . whereas attachemēt hath rather place in actions personall , as bracton plainly setteth downe . li. . tracta . . ca. . nu . . where neuerthelesse it appeareth , that a ( cape ) may be likewise vsed in an action personall . an attachement ( as it is formerly said ) taketh hold of moueable goods or the bodie . for it appeareth , by kitchin. fo . . that a man may be attached by a hundred sheepe . reade skene , de verbo . signific . verbo attachiamentum . now it followeth to shew how attachement differeth from a distresse . for so it doth , as may be shewed out of kitchin , fo . . where he saith , that processe in court baron , is summons , attachment , and distresse , out of the owld . nat . br . fo . . where it is said , that a processe in a ( quare impedit ) is summons , attachement , and one distresse , and , againe fo . . wheare ( speaking of the writ ) ne admittas ) he saieth thus : and the processe is one prohibition , and vpon the prohibition an attachment and distresse , and fo . . in a writ of ( indicauit ) you haue these words : and after the attachment returned , the distresse shall goe out of the rols of the iustices . bracton on the other side , li. . tract . . ca. . nu . . sheweth , that both ( attachiamentum , & magnum cape , districtiones sunt ) . of which opinion fleta also is , li. . ca. . § . si autem ad . but there also he saith , that ( attachiamentum est districtio personalis , & cape magnum districtio realis . so that by his opinion , districtio is ( genus ) to attachement . britton in his . chapter , hath words to this effect : but in attachement of felony , there commeth no distresse , otherwise then by the body . and if the shyreeue return in the cases aforesaid , that the trespassours haue nothing in his bayliwick , by the which they may be distreined , it must be awarded that he take their bodies , &c. in which place , an attachement is plainly vsed , for an apprehension of an offender by his goods . so that to conclude , i finde no difference between an attachment , and a distresse , but these two● that an attachement reacheth not to lands , as a distresse doth , and that a distresse toucheth not the bodie ( if it be properly taken ) as an attachement doth . yet are they diuers times confounded , as may appeare by the places formerly alleadged , and by glanvile . li. . ca. . and fleta . li. . ca. . & seqq . how be it , in the most common vse , an attachment is an apprehēsion of a man by his body , to bring him to answer the action of the plaintiffe : a distresse is the taking of another mans goods , for some reall cause , as rent , seruice , or such like , whereby to driue him to replevie , and so to be plaintiffe in an action of trespas , against him that distreined him . and so much for the difference , and coherēcie of these words . see also distres . i finde in west . parte . . symbolaio . titulo . proceedings in chauncerie . sect . . . that attachemēt out of the chaūcery is two-fold , one simple , and originally decreed for the apprehension of of the partie : the other , after return made by the shyreeue quod defendens non est inventus in baliva sua , with proclamations made through the whole courtie , in such places , as he shall thinke meete , that the partie appeare by a day assigned , and that he attached never the lesse , if he may be found . this second kinde hath an affinitie with the canonists ( vijs & modis ) at the which if the partie appeare not , he is excommunicate : or with the civilians ( vijs & modis vnâ cum intimatione ) for in the chaūcerie , if he com not vpō this , he is forth with pressed with a writ of rebellion . there is an attachment of priviledge , which is a power to apprehend a man in a priviledged place , or els , by vertue of a mans priuiledge , to call another to this or that courte , whereunto he himselfe belongeth , and in respect whereof , he is priviledged . newe booke of entrise . verbo priviledge . fo . . col . . there is also a foreine attachement , which is an attachement of a foriners goods found within a libertie or citie , to satisfie some creditour of his within the citie . there is also an attachement of the forest , which is a court there held . for ( as m. manwood saith ) in his first parte of forest lawes , p. . . . there be three courts of the forest , wherof the lowest is called the ( attachement ) the meane , the ( swaynemote ) the highest , the ( iustice seate in eyre . ) this court of attachement seemeth so to be called , because the verderours of the forest haue therein no other authoritie , but to receiue the attachements of offenders against vert and venison , taken by the rest of the officers , and to enrol them , that they may be presented and punished at the next iustice seate . manwood . parte . . pa. . and this attaching is by three meanes , by goods and catels , by body , pledges , and mainprise , or by the body onely . the courte is kept euery . . daies throughout the yere . and he that hath occasion to learne more of this , i refer , him to m. manwood , loco quo supra , & to m. crompton in his courte of the forest . attachement is commaunded in writs , the diversitie whereof you may see , in the register originall vnder the word attachiamentum in indice . at large , see assise at large in the word assise , and owld nat . br . fo . . verdict at large . littleton . fo . . to vouch at large . owld . nat . br . fo . . to make title at large . kitchin. fo . . see barre . attaint ( attincta ) commeth of the french , as you shall see in the word ( attainted ) but as it is a substantiue , it is vsed for a writ that lyeth after iudgement , against a iurie that hath giuen a false verdict in any court of record ( be the action reall or personall ) if the debt or dammages surmount the summe of . shillings : what the forme of the writ is , and how in vse it is extended , see fitzena . br . fol. . and the new booke of entries , fol. . colum . . the reason why it is so called , seemeth to be , because the partie that obtaineth it , endeuoureth thereby to touch , deprehend , or staine the iurie with periurie , by whose verdict he is grieued . what the punishment of this periurie is , or of him that bringeth the writ against the iurie , if he faile in his proofe , see glanvile lib. . cap. . fitz. nat . br . fol. . k. io. & . a. b. c. d. &c. the termes of the lawe , verb. attaint . fortescue cap. . smith de rep . anglo . lib. . cap. . and anno . h. . cap. . & an . . h. . cap. . and others . in what diuersitie of cases this writ is brought , see the register orig . in indice . attainted ( attinctus ) commeth of the french ( teindre . i. tingere : the participle whereof is ( teinct : i. tinctus , ) or else of ( attaindre . i. assequi , attingere . ) it is vsed in our common lawe , particularly for such as are found guiltie of some crime or offence , and especially of felonie or treason . how be it a man is said to be attainted of of disseisin . westm . . cap. . & . anno . ed. . and so it is taken in french likewise ( as estre attaint & vayncu en aucun cas ) is to be cast in any case . which maketh me to thinke that it rather cōmeth from ( attaindre ) as we would say in english catched , ouertaken , or playnly deprehended . and britton ca. . vseth the participle ( attaint ) in the sence that we say ( attained vnto ) a man is attainted by two meanes : by appearance or by proces . stawnf . pl. cor . fo . . attaynder by by apparence , is by confession , by battelll , or by verdict . idem . fo . . confession whereof attaynt groweth , is double : one at the barre before the iudges , when the prisoner vpon his endictment read , being asked guilty or not guilty , answeareth guilty , neuer putting himselfe vpon the verdict of the iurie : the other is before the coroner in sanctuarie , where he vpon his confession was in former times constreyned to abiure the realme . which kinde also of the effect , is called attaynder by abiuration . idem . fo . . attaynder by battel is , when the party appealed by another , and chusing to trie the the truth by combat rather then by iurie , is vanquished . idem . fo . . attaynder by verdict is when the prisoner at the barre answering to the endictment not guilty : hath an enquest 〈◊〉 life and death passing vpon him and is by their verdict or doom● pronounced guiltie . idem fo . . & . attainder by processe ( otherwise called attainder by default , or attainder by outlagarie ) is where a partie flieth , and is not found vntill he haue bene fiue times called publikely in the countie , and at the last out-lawed vpon his default . idem . fol. . i find by the same author . fol. . that he maketh a difference between attainder and conuiction , in these words : and note the diuersitie betweene attainder and conuiction , &c. and with this agreeth the statute , anno . & . h. . cap. . in ipso principio , and anno . ed. . cap. . in these words : that then euery such offender being duly thereof convicted or attainted , by the lawes of this realme , &c. and againe , in these words : euery woman that is , or shall fortune to be wife of the person so attainted , convicted , or outlawed , &c. to this you may likewise adde the flat . anno . & . edw. . cap. . and i find by stawnf . pl. cor . fol. . that a man by our ancient lawes , was said to be conuicted presently vpon the verdict ( guiltie ) but not to be attainted , vntill it appeared that he was no clerke : or being a clerke , and demanded of his ordinarie , could not purge himselfe . so that a man was not attainted vpon conuiction , except he were no clerke : and , in one word , it appeareth , that attainder is larger then conuiction ; conuiction being onely by the iurie . and attainder is not before iudgement , perkins graunti . num . . . yet it appeareth by stawnf . fol. . that conuiction is called attainder sometime . for there he saith , that the verdict of the iurie doth either acquit or attaint a man : and so it is , westm . pr. cap. . anno . ed. . this auncient lawe touching the conuiction and purgation of clerkes , is altered , by anno . eliz. cap. . as you may farder reade in clergie . attainder ( attinctus ) though it be most vsed in matters of felonie and treason : yet is it likewise applied to inferior transgressions , as to disseisin , westm . . cap. . anno . ed. . and britton cap. . see attaint , and attainted . attendant ( attendens ) cōmeth of the french ( attendre . i. demorari , opperiri , expectare , praestolari , ) it signifieth in our common law , one that oweth a dutie or seruice to another , or after a sort dependeth of another . for example , there is lord , mesn , and tenent : the tenent holdeth of the mesn by a peny ; the mesn holdeth ouer by two pence . the meane releaseth to the tenent all the right he hath in the land , and the tenent dyeth . his wife shall be endowed of the land , and she shall be attendent to the heire of the third part of the peny , and not of the third part of the two pence . for she shall be endowed of the best possession of her husband . another hath , kitchin , fol. . in these words : where the wife is endowed by the gardian , she shal be attendant to the gardian , and to the heire at his full age : with whome agreeth perkins also , in dower . . atturney ( atturnatus ) cōmeth of the french ( tourner . i. vertere ) as , tourner son esprit à faire quelque chose , i. animum ad rem aliquam inclinare . ) thence commeth the participle ( tournè . i. versus , conversus , ) and the substantiue ( tour . i. vices , vicissitudo ) as , chacun à son tour , i. quilibet sua vice . ) it signifieth in our common lawe , one appointed by another man to do any thing in his steade , as much as ( procurator ) or ( fyndicus ) in the ciuill lawe , west . parte . symbolayogr . lib. . sect . . defineth it thus : atturneys be such persons , as by the consent , commandement , or request , do take heed , fee to , and take vpon them the charge of other mens busines in their absence , by whome they are commaunded or requested . and where it seemeth that in auncient time , those of authoritie in courts , had it in their arbitriment , whether they would suffer men to appeare , or sue by any other then themselues , as is euident , by fitz. nat . br . fol. . in the writ . dedimus potest atem de atturnato facundo , where it is shewed , that men were driuen to procure the kings writs or letters parents to appoint atturneys for them : it is sithence prouided by statutes , that it should be lawfull so to do without any such circuit , as by the statute . anno . h. . cap. . anno . ed. . cap. . anno . eiusdem . stat . . an . . ed. . . anno . eiusdem cap. vnico . anno . ric. . cap. . anno . h. . cap. . anno . h. . cap. . anno . h. . cap. . & anno . h. . cap. . is to be proued . and you may see great diuersitie of writs , in the table of the regi . origin . wherein the king by his writ commaundeth the iudges to admit of atturneys . wherby there grew at the last so many vnskilfull atturneys , and so many mischiefes by them , that prouision for restraining them was requisite . wherefore anno . h. . cap. . it was ordained , that the iustices should examine them , and displace the vnskilfull . and againe , anno . h. . cap. . that there should be but a certaine number of them in northfo 〈…〉 and southfolke . in what cases a man at this day may haue an atturney , and in what not , see f●● . vbisupra . atturney is either generall or speciall : atturney generall is he , that by generall authoritie is appointed to all our affaires or suites : as the atturney generall of the king . pl. cor . fol. . which is as much as ( procurater caesaris ) was in the romane empire . atturney general of the duke , cromptons iurisd . fol. . atturney speciall or particular is he , that is employed in one or more causes particularly specified . atturneys generall be made after two sorts : either by the kings leters patents before him or the lord chancelour , or by our appointment before iustices in eyre in open court , glanvile li. . cap. pri . britton . cap. . whome of this thing you may reade more at large . there be also in respect of the diuers courts , atturneys at large , and atturneys special , belonging to this or that court onely . the name is borrowed of the normanes , as appeareth by the custumarie , cap. . and i find the word ( attornati ) or as some reade ( tornati ) in the same signification in the title ( de statu regularium ) ca. vnico . § . perrò i. n sexto . ) where the glosse saith , that atturnati dicuntur procuratores apud acta constituti . our old latine word for this seemeth to be ( responsalis ) bract. lib. . cap. . & lib. . parte . cap. . and so it is in scotland at this day , but especially for the atturney of the defendant , as ( prolocutor ) is for the persewer . m. skene de verb. significatione . responsalis , as sig●nius witnesseth , in his first booke de regno italie , was in auncient time , the title of the popes ambassadour , pag. . atturney of the court of wards and liueries ( atturnatus regis in curia wardorum & liberaturarū ) is the third officer in that court , who must be a person learned in the lawes of the land , being named and assigned by the king . at his admission into the office , he taketh an oath before the master of the said court , well and truly to serue the king , as his atturney in all courts , for and concerning any mater or cause , that toucheth the possessions and hereditaments limited to the suruey and gouernement of this court , and to procure the kings profite thereof : truly to councell the king , and the master of the court , in all things concerning the same , to the best of his cunning , witte , and power : and with all speed and diligence from time to time at the calling of the master , to endeuour himself for the hearing and determination indifferently of such matters & causes , as depend before the master : not to take any gift or reward in any mater or cause depending in the court , or else where , wherein the king shall be partie , whereby the king shall be hurt , hindred , or disinherited : to do to his power , wit , and cunning , all and euery thing that appertaineth to his office . atturney of the court of the duchie of lancaster , ( atturnatus curia ducatus lancastriae ) is the second officer in that court , and seemeth , for his skill in law ; to be there placed as ( assessor ) to the chanceler of that court , being for the most part , some honorable man , and chosen rather for some especiall trust reposed in him to deale betweene the king and his tenents , then for any great learning , as was vsuall with the emperors of rome , in the choice of their magistrates . attournment ( attornamentum ) commeth of the french ( tourner . i. vertero ) and in our common lawe , is an yeelding of the tenent to a new lord , or acknowledgement of him to be his lord. for otherwise he that buyeth or obtaineth any lands or tenements of another , which are in the occupation of a third , cannot get possession : yet see the statute , an . . h. . cap. . the words vsed in atturnment are set downe in litleton . i agree me to the graunt made to you , &c. but the more common atturnment is to say : sir , i attourn to you by force of the same graunt : or , i become your tenent , &c. or else deliuer vnto the grauntee a peny , halfepeny , or farding , by way of attournment , litleton lib. . cap. attournment . . whome you may reade more at large , and find that his definition proceedeth from more lawe then logicke● because he setteth downe diuers other cases in the same chapter , whereto attournment appertaineth as properly as vnto this . but you may perceiue there , that attournment is the transposing of those duties that the tenent ought to his former lord , vnto another , as to his lord : and also , that attournment is either by word or by act , &c. also attournment is voluntarie , or else compulsorie , by the writ tearmed per quaeseruitia , owld . nat . br . fol. . or sometime by distresse . fitzh . nat . br . fol. . lastly , attournment may be made to the lord himselfe or to his steward in court , kitchin. fol. . and there is attournment in deede , and attournment in lawe . coke vol. . fo . . a. attournment in lawe , is an act , which though it be no expresse attournment , yet in intendment of law is all one . ( atturnato faciendo vel vecipiendo ) is a writ which a man oweing suite to a countie , hundred , weapon take , or other court , and desiring to make an attourney , to appeare for him at the same court , whome he doubteth whether the shyreeue or bailiffe will admit or not for his attourney there , purchaseth , to commaund him to receiue such a man for his attourney , and admit his appearance by him . the forme and other circumstances whereof , see in fitzh . nat . br . fo . audiendo & terminando , is a writ , but more properly tearmed a commission , directed to certaine persons , when as any great assembly , insurrectiō , or heinous demeanure or trespasse is committed in any place , for the appeasing , and punishment thereof . which you may read at large , in fitzh . nat . br . fo . . see also oyer & terminer . andience courte ( curia audientiae cantuariensis ) is a court belonging to the archbishop of canterburie , of equall authoritie with the arches court , though inferior both in dignity and antiquitie . the originall of this court was , because the archeb . of canterbury heard many causes extra iudicially at home in his owne palace , in which , before he would finally determine any thing , he did vsually commit them to be discussed by certaine learned men in the ciuile & canon lawes , whome thereupon be termed his auditors . and so in time it grew to one especiall man , who at this day is called ( causarum negotiorumque audientiae cantuariensis auditor seu officialis . and with this office hath heretofore commonly bene ioyned the chancelership of the archbishop , who medleth not in any point of cōtentious iurisdiction , that is , desciding of causes betweene party and party ( except such as are ventilated pro forma onely , as the confirmation of bishops elections , or such like ) but onely of office , and especially such as are voluntariae iurisdictionis , as the granting of the custody of the spiritualties , during the vacation of bishoprickes , institutions to benefices , dispensing with banes of matrimonie , and such like . but this is now distinguished in person from the audience . of this audience court , you may reade more in the booke , intituled de antiquitate ecclasiae brittannicae historia . audita querela , is a writ , that lieth against him , who hauing taken the bond called ( statute merchant ) of another , and craving or hauing obteined execution of the same at the maior & bayliffes hands , before whome it was entred , at the complaint of the partie who entred the same , vpon suggestion of some iust cause why execution should not be graunted ; as a release , or other exception . this writ is graunted by the chaunceler of england , vpon veiwe of the exception suggested , to the iustices of the common banke , or of the kings benche , willing them to graunt summons to the shyrecue of the countie , where the creditour is , for his appearance at a certain day before them . see more in owld . nat . br . fo . . and fitzh . nat . br . fo . . auditour ( auditor ) commeth of the french ( auditeur ) and in our lawe , signifieth an officer of the king , or some other great personage , which yearely by examining the accounts of all vnder officers accountable , maketh vp a generall booke , that sheweth the difference betweene their receipts or burden , and their allowances , commonly called ( allocations ) : as namely , the auditours of the exchequer , take the accounts of those receiuers , which receiue the revenewes of the augmentation : as also of the shyrceues , escheatours , collectours , and customers , and set them downe and perfect them . him that will read more of this , i referre to the statut. anno . . h. . c. . auditours of the prests , are also officers in the exchequer , that doe take and make vp the great accounts of ireland , berwick , the mint , & of any mony imprested to any man. auditour of the receipts , is an officer of the exchequer , that fileth the tellers bils , and maketh an entrie of them , and giueth to the lord treasurer a certificate of the mony receiued the weeke before . he maketh also ( debenturs ) to euery teller , before they pay any mony , & taketh their accounts . he keepeth the blacke booke of the receipts , and the treasurers key of the treasurie ; and seeth euery tellers monies locked vp in the new treasury . auenture . is a mischance , causing the death of a man without felony : as when he is sodenly drowned , or burnt , by any soden disease falling into the water or fire . britton . ca. . where you may see , what it differeth from misadventure . see misadventure . average ( averagium ) by m. skenes opinion ( verbo arage ) de verborum significatione , commeth of the word ( averia . ) i. a beast , and so consequently signifieth service which the tenent oweth to to the lord , by horse or cariage of horse . i haue heard others probably deriue it from the french ( euvrage ) or ( euvre . i. opus . ) it seemeth with vs to haue two diuers significations ; for the first , rastall . titulo exposition of words . maketh mention of the kings averages , which i take to be the kings cariages by horse or cart . then. anno . . h. . ca. . and anno . . iacobi , ca. . it is vsed for a certaine contribution that merchants and others doe every man proportionably make toward their losses ; who haue their goods cast into the sea for the safegard of the shippe , or of the goods and liues of them in the shippe in time of a tempest . and this contribution seemeth to be so called , because it is proportioned , after the rate of euery mans average or goods caried . averijs captis in withernam , is a writ for the taking of catell to his vse , that hath his catell taken vnlawfully by another , and driuen out of the countie where they weretaken , that they cannot be repleuied . register . originall . fo . . a. b. see withernam . averment ( verificatio ) cōmeth from the french ( averer . i. testari ) as averer quelque meschācete . i. extrahere scelus aliquod in lucem ex occultis tenebris . it signifieth ( according to the author of the termes of lawe ) an offer of the defendant to make good , or to iustifie and exception pleaded in abatement or barre of the plaintifs actiō . but me thinketh it should rather signifie the act , thē the offer of iustifying the exception , by diuers places where i finde it vsed . for example . an . ed. stat . . and the demaundant will offer to averre by the assise or iurie . where to offer to averre and to averre must needes differ : and againe in the same staint . and the demaundaunt will offer to averre by the countrie , &c. thirdly in the english nat . br . fo . . these errours shall be tried by averment , &c. averpennie ( quasi averago pennie , ) is mony contributed toward the kings averages . rastall exposition of words . see average . augmentation ( augmentatio ) was the name of a court , erected the yeare of h. . as appeareth by the . chapter of that yeares parlament . and the end thereof was , that the king might be iustly delt with touching the profits of such religious howses and their lands , as weare giuen vnto him by an act of parlament the same yeare not printed . for the dissolving of which courte , there was authoritie giuen to queene mary , by the parlament held the first yeare of her raigne . ses . . ca. . which shee afterward put in execution by her leters patents . the name of the courte grewe from this , that the revenewes of the crowne were augmented so much by the suppression of the said houses , as the king reserved vnto the crowne , and neither gaue nor sold away to others . aulne of renish wine . a. . ed. . ca. . aliàs , awme of renish wine . . laco . ca. . is a vessell that conteineth . gallons . aulnegeowr . see alneger . avo , is the name of a writ for the which see ( ayle ) . awncell weight , as i haue beene informed , is a kinde of weight with scoles hanging , or hookes fastened at each end of a staffe , which a man lifteth vp vpon his forefinger , or hand and so discerneth the equalitie or difference betweene the weight and the thing weied . in which , because there may , and was wont to be great deceipt , it was forbidden . anno . . ed. . stat . . ca. . & anno . . eiusdem . ca. . and the euen ballance onely commanded , yet a man of good credit , once certified me , that it is still vsed in leaden hall at london among butchers &c. in the deriuation of this word , i dare not be ouer confident . but it may probably be thought to be called ( awnsell weight , quasi hand sale weight ) because it was and is performed by the hand , as the otheris by the beame . and if i should draw it from the greeke , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. cubitus . the parte of the arme from the elbowe to the fingers ends , i might chalenge a good warrand of this from the romaines ; whoe thence derived their ( ancile ) . i. the luckie shield , that was saide to be sent from heauen in a tempest to numa pompilius , together with a voice , that the citie of rome stould be the mightiest of all others , soe long as that shield remained in it . auncient , d 〈…〉 , ( antiquum dominicum ) is called ( more at large anncient demeasn of the king or of the crowne . fazb . nat . brifo . . d. it cōmeth of . french words ( auncien . . veter , vetus , veteranus , antiquus ) and of ( demaine , alias domaire . i. publicum vectigal ) it signifieth in our common lawe , a certaine tenure , whereby all the maners belonging to the crowne , in the daies of saint edward the saxon king , or of william the conquerour , did hold . the number & names of which maners , as all other , belonging to common persons , he caused to be written into a booke , after a survey made of them , now remaining in the exchequer , and called domes day looke . and those , which by that booke doe appeare , to haue belonged to the crowne at that time , and at 〈◊〉 conteined vnder the title ( terrae regis ) be called aunciēt demeasn . kitchin. fo . . and m. gwin . in the preface to his readings . of these tenents there were two sorts , one that held their land frankely , by charter , and another that held by copy of court rolle , or by verge , at the will of the lord , according to the custome of the maner . fitzh . nat . br . fo . . d. of which opinion also brittonis , ca. . nu . . the benefite of this tenure , consisteth in these points ; first , the tenents of a manner holding freely by charter in this sort , cannot be impleaded , out of the same maner : and if they be , they may abate the writ , by pleading their tenure before or after answer made . secondly , they be free of tolle for al things concerning their sustenāce & husbādry . thirdly , they may not be ēpaneled vpō any ēquest . terms of the law . but more at large by fitzh . nat . br . fo . . d. whome reade , as also fo . . a. &c. and as it appeareth by him . eodem . fo . . b. c. these tenents held by the service of plowing the kings land , by plashing his hedges , or by suche like , toward the maintenance of the kings household ; in which regard they had such liberties giuen them , wherin , to avoide disturbance , they may haue writs to such as take the duties of tolle in any market or feire ; as likewise for immunitye of portage , passage , & such like . fitzh . nat . br . f. . a. b. c. d. by which author it also appeareth , that no lands be to be accompted auncient demeasn , but such as are holden in socage . fo . . d. et . . b. c. see monstraverunt , and firtzh . fo . . and dessendo quietum de telonio . fo . . fleta maketh three tenures holding of the crowne : auncient demeasn , by escheate , & by purchase . li. . ca. . see demaine . auncient demesn arere ( antiquum dominicum àretro ) is that aūcient demesn , which the king graunteth ouer to hold of a maner . kitchin. fo . . b. avowè ( advocatus ) see advowè . britton saith that avowè is he , to whome the right of advowzen of any church appertaineth , so that he may present thereunto in his owne name , and is called avowè for a difference from those , that sometime present in another mans name : as a gardiā that presenteth in the name of his warde , and for a difference also from them , which haue the lands whereunto an advowzen appertaineth , but onely for tearme of their liues , or of yeares , or by intrusion or desseisin . ca. . avowrie . see advowrie . avoir de pois , is in true french ( avoir du poix . i. habere pondus , aut iusti esse ponderis ) it signifieth in our common lawe , two things : first , a kinde of weight divers from that , which is called troy weight conteining but . ounces to the pound , where as this conteineth sixteene . and in this respect it may be probably coniectured , that it is so called , because it is of more weight then the other . then also it signifieth such merchandize , as are waied by this weight , and not by troy weight . as in the statute of york anno . ed. . in prooem . anno . . ed. . statuto ca. . at anno . rich. . cap. . see weights . auxilium ad filium militem faciendum , & filiam maritandam , is a writ directed to the shyreeue of euery countie , where the king or other lord hath any tenents , to leuye of them reasonable ayde toward the knighting of his son , and the mariage of his daughter . see ayde , and fitz. nat . br . fol. . b bacheler ( bachalaureus ) cōmeth of the french ( bachalier . i. tyro ) and thereupon i thinke , those that be called bachelers of the companies in london , be such of each company , as be springing toward the estate of those that be imployed in coūcel , but as yet are inferiors . for euery cōpany of the twelue , consisteth of a master , two wardens , the liuerie , which are assistants in matter of councell , or at the least , such as the assistants be chosen out of , and the bachelers , which are yet but in expectance of dignitie among them , and haue their function onely in attendance vpon the master and wardens . i haue read in an old monument , this word bacheler , attributed to the lord admirall of england , if he be vnder a baron , in french words to this effect : and it is to weet , that when the admirall rideth to assemble a snippe of warre , or other , for the businesse and affaires of the realme , if he be a bacheler , he shall take for his day wages , . 〈◊〉 . sterling : if he be an earle or baron , he shall take wages after the rate of his estate and degree . this word is vsed , anno . r. . stat . . cap. i. & signifieth as much as bacheler knight doth , anno . ed. . cap. . that is , a simple knight , not a knight baneret . see banaret . touching the farder etymologie of this word , bachalarii , teste renano , à bacillo nominati sunt , quia primi studii authoritatem , quae per exhibitionem baculi concedebatur , iam consecuti fuissent . vt fuerit velut quoddam mancipationis signum in huiusmodi aliquod studium baculi traditio . alciat writeth the word ( baccalaurei , eosque dicit visos à bacca laurea nomen sumpsisse . in l. cui praecipua . Π. de verbo . significa . backberond . is a saxon word . and almost english at this day , signifying as much as bearing vpon the backe , or about a man. bracton vseth it for a signe or circumstance of manifest theft , which the civilians call , furtum manifestum . for dividing ( furtum , in manifestum , & non manifestum ) he defineth ( furtum manifestum ) in this sort : furtum verò manifestū est , vbi latro deprehensus est seisitus de aliquo latrocinio : sc . hand habend & backberend , & insecutus fuerit per aliquem cuius res illa fuerit . li. tract . . cap. . master manwood in the second part of his forest lawes , noteth it for one of the . circumstances or cases , wherein a forester may arrest the bodie of an offender against vert or venison in the forest . for by the assise of the forest of lancaster ( saith he ) taken with the maner is , when one is found in the kings forest in any of these foure degrees : sc . stable stand , dogge drawe , backe beare , and bloudie hand . in which place you may find all these interpreted . badger , cōmeth of the french ( bagage , i. sarcina , impedimentū , ) it signifieth with vs , one that buyeth corne or victuals in one place , and carieth it into another . see cromptons iustice of peace , fol. . & . baye or penne is a pond head made vp of a great heith , to keep in a great quantitie or store of water , so that the wheeles of the fornace or hammer belonging to an iron mill , may stand vnder them , and be driuen by the water comming out of them by a passage or flud-gate ( called the penstocke ) and falling vpon the said wheeles . this word is mentioned in the statute , anno . el. cap. . bayle ( ballium , plevina , manucaptio ) commeth of the french ( bailler , i. attribuere , tradere , tribuere . ) it is vsed in our common lawe , properly for the freeing or setting at liberty of one arrested or imprisoned vpon action either civill or criminall , vnder suretie taken for his apparence at a day and place certainely assigned . bracton lib. . tract . . cap. . num . . & . the reason why it is called bayle , is , because by this meanes the party restrained , is deliuered into the hands of those that bind themselues for his forth-comming . there is both common and speciall baile . cōmon baile , is in actions of small preiudice , or flight proofe : being called common , because any sureties in that case are taken : whereas vpon causes of greater weight or apparent specialtie , speciall baile or suretie must bee taken : as subsidie men at the least , and they according to the value . master manwood in his first part of forest lawes , pag. maketh a great difference betweene bayle and mainprise , in these words : and note that there is a great diuersitie betweene bayle and mainprise . for he that is mainprised , is alwaies said to be at large , and to go at his own libertie out of ward , after that he is let to mainprise , vntill the day of his appearance , by reason of the said common summons or otherwise . but otherwise it is , where a man is let to bayle , by foure or two men , by the lord chiefe iustice in eyre of the forest , vntill . a certaine day . for there he is alwaies accompted by the lawe , to be in their ward and custodie for the time . and they may , if they wil , keepe him in ward or in prison at that time , or otherwise at their will. so that he which is so bailed , shall not be said , by the lawe , to be at large , or at his owne libertie . see lamberds eirenarcha . lib. . cap. . pag. . bayle , is also a certaine limit within the forest , accordingly as the forest is diuided into the charges of seuerall foresters . crompton in the oath of the bow-bearer , fol. . see maynprise . baylife ( ballivus ) commeth of the french ( bailif . i. diaecetes , nomarcha , praefectus prouinciae ) and as the name , so the office it selfe , in auncient time , was very aunswerable to that of fraunce and normandie : for as in france there be sixteene parlaments , ( lupanus de magistratibus francorum , lib. . cap. parlamentum ) which be high courts , whence lyeth no appeale : & within the preeincts of those seuerall parts of that kingdome , that belong to each parlament , there be seueral prouinces , vnto which , within themselues , iustice is ministred by certaine officers called bayliffes : so in england we see many seuerall counties or shires , within the which iustice hath bene ministred to the inhabitants of each countie , by the officer whome we now call shyreeue or vicount ( one name descending frō the saxons , the other from the normans . ) and though i cannot expressely proue , that this shyreeue was euer called a bailiffe : yet is it probable , that that was one of his names likewise , because the countie is called many times ( balliva ) that is a bayliwicke : as namely , in the returne of a writ with ( non est inuentus , ) he writeth thus : ( a. s. infra scriptus , non est inventus in balliva mea , post receptionem huius brevis ) kitchin returna brevium . fol. . and againe in bracton , lib. . tract . . cap. . num . . and anno . eliz . cap. . and anno . ed. . stat . . cap. . and i thinke the word ( bailife ) vsed cap. . of magna charta , compriseth as well shyreeues , as bailiffes of hundreds : as also anno . ed. . stat . . cap. . but as the realme is diuided into counties : so euery countie is againe diuided into hundreds , within the which it is manifest , that in auncient times , the kings subiects had iustice ministred vnto them , by the seuerall officers of euery hundred , which were called bailiffes , as those officers were and are in fraunce and normandie , being chiefe officers of iustice within euery prouince . lupanus de magistratibus francorum , lib. . cap. balivi . and the grand custumary of normandie , cap. . and that this is true among many others , i bring bracton for my witnes , li. . tract . . cap. . n. . where it appeareth that bailiffes of hundreds might hold plee of appeale and approuers . but fithence that time , these hundred courts ( certain franchises excepted ) are by the statute anno . ed. . stat . . cap. . swalowed into the countie courts , as you may reade in countie and hundred . and the bailiffes name & office is growne into such contempt , at the least , these bailiffes of hundreds , that they are now but bare messengers and mandataries within their liberties to serue writs , and such like base offices : their office consisting in . points onely , which see in cromptons iustice of peace , fol. . a. yet is the name still in good esteeme some other way . for the chiefe magistrates in diuers townes corporate be called bailiffes , as in ipsewitch , yarmouth , colchester , and such like . and againe , there be certaine , to whom the kings castels be committed , which are called bailifs , as the bailiffe of dover castell . these ordinary bayliffes are of two sorts : baylifs errant , and baylifs of franchises . baylifes errant ( ballivi it inerantes ) be those which the shyreeue maketh , and appointeth to goe hither & thither in the countie to serue writs , to summon the countie , sessions , assises , and such like . baylifs of franchises ( ballivi franchesiarum aut libertatum ) be those , that are appointed by euerie lord within his libertie , to doe such offices within his precincts , as the baylife errant doth at large in the countie . of these read s. thomas smith , de repub . anglo . li. . ca. . there be also baylifes of the forest . manwood parte . pa. . there be likewise baylifes of husbandrie , belonging to priuate men of great substance , who seeme to be so called , bycause they dispose of the vnder servants every man to his labour and taske , check them for misdoing their buisenes , gather the profits of their lord and master , and deliuer an accompt for the same at the yeares end , or otherwise as it shall be called for . the word baylife or balivus , is by rebuffus deriued from ( baal . i. dominus , quia ballivi dominantur suis subditis , quasi eorum magistri & domini . rebuf . in constitut . regias . de senten . executionis . art . . glos . . the office or dutie of a bayliffe of a maner or household ( which in aunciēt time seemeth to haue beene all one ) fleta well describeth , li. . ca. . & . this word is also vsed in the canon lawe , ca. dilect● . de sentent . excom . in sexto . & ca. pri . de poenis in clement . wher the glossographer saith , it is a french word , signifiing as much as ( praepositus ) & ( balia ) or ( balivatus ) is vsed among our later interpreters of the civile & canon law , for provincia , as balliua heere in england , is vsed for a countie or shire . balkers see conders . ballivo amovēdo , is a writ to remooue a baylife out of his office , for want of sufficient liuing with in his bayliwick . reg. orig . f. . bane , seemeth to signifie the destruction or ouerthrow of any thing . bracton . li. . tracta . . ca. . nu . . as he which is the cause of of another mans drowning , is said there to be la bane . i. malefactor . in that bracton , in the place aforesaid , prefixeth a french article to this word , it should seeme by his opinion , that the word is french , but i finde it not in any french writer that euer i read . baneret ( banerettus ) in m. skenes opinion , seemeth to be compounded of ( baner ) and ( rent ) whome reade more at large of this , verbo . baneret . de verbo . signi . but our m. camden , rather draweth the word from the german ( bannerheires . brittan . pae . . in meo libro . s. thomas smith de repub . auglo . li. . ca. . saith , that baueret is a knight made in the field , with the ceremonie of cutting of the point of his standard , and making it , as it were , a baner . and they being before bachelers , are now of greater degree , allowed to display their armes in a baner in the kings armie , as barons doe . m. camden vbi supra , hath these words of this matter , baneretti , cùm vasallorum nomen iam desierat , a baronibus secundi erant : quibus inditum nomen a vexillo . concessum illis erat militaris virtutis ergo , quadrato vexillo ( perinde ac barones ) vti . vnde & equites vexillarii a nonnullis vocantur , &c. of creating a knight baneret , you may read farder , in m. segar . norrey his booke . li. . ca. . that they be next to barons in dignitie , it appeareth by the statut . an . . r. . c. . & by anno . . r. . stat . . ca. . it may be probably coniectured , that they were aunciently called by summons to the court of parlament . and anno . . r. . stat . . ca. . we finde , that a baneret for praying a pardon for a murderer , contrarie to that statut , is subiect to all one punishment with a baron . iohan : gregorius tholosanus . li. . ca. . sui syntagmatis . nu . . hath these words : in gallia sunt duae species affines nobilium & feudorum , quas dicunt de benneretz & barons . benneretus iure suae dignitatis , antequam talis dici mereatur , nobilis esse debet genere , in quarto gradu , possidens in ditione decem scutarios bachalarios armorū : id est , decem vasallos habens sufficiens patrimonium , quo possit secum ducere quatuor aut quinque nobiles comites continuos , cum equitibus duodecim aut sexdecim . fit autem benneretus , cùm princeps huiusmodi personae concedit vexilli ius , & ex vexillo peditum in acie , vel extra , die solenni , sacris peractis , admit acumina . vocant la queve de pennon , fitque labarum , id est , equitum vexillum , vocant cornette eumque equitem facit , si iam non est . quòd si ditior his fiat benneretus , & habet vnam benneretam , aut sex equites bachalarios , qui possideant singuli in censum sexcentas libras ex eius ditione seu feudo , tunc possunt ex licentia principis , baronis nomen sibi adsciscere . bans ( bannus vel bannum ) signifieth a publike notice giuen of any thing . the word is ordinarie among the feudists , and growne from them to other vses : as to that which we heere in england call a proclamation , whereby any thing is publikely commaunded or forbidden . vincentius de franchis . descis . . & . hotoman verbo bannus , in verbis fendalibus saith that there is both ( bānus ) and ( bannum ) and that they signifie two divers things . his words are these : bannus siue bannum duo significat : edictū , qua die vasalli equis armisque instructi , ad comitatum adesse debent : & sanctionē , hoc est , mulctam edicto non parentis . which he confirmeth by divers authorities . this word ( bans ) we vse heere in england , especially in the publishing of matrimoniall contracts in the church , before mariage , to the end that if any man can say against the intētion of the parties , either in respect of kindred or otherwise , they may take their exception in time . and in the canon lawe , banna , sunt proclamationes sponsi & sponsae in ecclesijs fieri solitae . ca. . extra de sponsal . & ca. vlt. qui matrimonium . accus . pos . & ca. vlt de clan . despons . yet our word ( banning ) seemeth to come thence , being nothing but an exclamation of another . onely bracton , once maketh mention of bannus regis , for a proclamation , or silence made by the crier , before the congresse of the champions in a combate . li. tracta . . ca. . bank ( bancus ) commeth of the french ( banque . i. mensa ) in our common lawe , it is most vsually taken for a seate or bench of iudgement , as bank leroy the kings bench . bank de commō plees : the bench of comon plees , or the common bench . kitchin. fo . . called also in latine bancus regius , & bancus communium placitorum . crompt . iuris . fo . . & . camden in his britannia . pa. . & . in meo . calleth them also bancum regium & bancum communem . see frank bank . bankrupt , ( aliàs bankrowte . ) cōmeth of the french ( banque route ) and ( faire banqueroute ) with the french , is as much as ( foro cedere , sol●● vetere ) with the romanes . the composition of the french word i take to be this ( banque . i. monsa ) & ( route . i. vestigium ) metaphorically taken from the signe left in the earth , of a table once fastened vnto it , & now taken away . so that the original seemeh to haue sprung frō those romain ( mensary ) which ( as appeareth by many wrighters ) had their ( tabernas & mensas ) in certaine publique places , whereof , when they were disposed to flie , & deceiue men that had put them in trust with their monies , they left but the signes or carcases behinde them . i know that others of good learning ( and m. skene for one ) bring this ( a banco rupto ) but the french word worketh in me this other opinion , for after their sence , the french should rather be banque rompu . bankrupt with vs signifieth him or his act , that hauing gotton other mens goods into his hands , hideth him selfe in places vnknowne , or in his owne priuate house , not minding to pay or restore to his creditours their duties . anno . . h. . ca. . where the french phrase ( faire banque route ) is translated to the word , to make bankrupt . a bankrupt , anno . . iacobi . ca. . is thus described : all and euery such person and persons , vsing , or that shall vse the trade of merchandise , by way of barg aining , exchange , bartrey , cheuisance , or otherwise in grosse , or by seeking his , her , or their trade of liuing by buying and selling , and being a subiect borne of this realme , or any the kings dominions , or denizen , who at any time sithence the first day of this present parlament , or at any time hereafter , shall depart the realme , or begin to keepe his or her house or houses , or otherwise to absent him or her selfe , or take sanctuarie , or suffer him or her selfe willingly to be arrested for any debt or other thing , not growne or due for mony deliuered , wares sould , or any other iust or lawful cause , or good consideration or purposes , or hath or will suffer him or her selfe to be outlawed , or yeld him or her selfe to prison , or willingly or fraudulently hath or shall procure him or her selfe to be arrested , or his or her goods , money , or chatels to be attached or sequestred , or depart from his or her dwelling house , or make , or cause to be made any fraudulent graūt or conueyance of his , her , or their lands , tenements , goods or chatels , to the intent or whereby his , her , or their creditours being subiects borne , as aforesaide , shall or may be defeated or delayed forthe recouery of their iust and true dept : or being arrested for debt , shall after his other arrest , lye in prison fixe monethes or more , vpon that arrest , or any other arrest or detention in prison for debt , and lye in prison sixe monethes vpon such arrest or detention , shall be accompted and adiudged a bankrupt to all intents and purposes . banishment ( exilium , abiuratio ) commeth of the french ( bannissement ) and hath a signification knowne to euery man. but there be two kinds of banishments in england : one voluntarie and vpō oath , whereof you may reade ( abiuration : ) the other vpon cōpulsion for some offence of crime : as if a lay-man succor him that , hauing taken sanctuarie for an offence , obstinately refuseth to abiure the realme , he shall loose his life and member : if a clerke do so , he shall be banished , stawnf . pl. cor . fol. . this punishment is also of our moderne civilians called ( bannimētum ) which was aunciently tearmed ( deportatio ) if it were perpetuall , or ( relegatio in insulam , ) if for a time . vincentius de franchis . petrus de belluga in suo speculo . fol. . num . . barbaries ( oxyeantha ) is a thornie shrub knowne to most men to beare a bery or fruite of a sharpe taste . these beries ( as also the leaues of the said tree ) be medicinable , as gerara in his herball sheweth , lib. . cap. . you find them mentioned among drugs to be garbled , anno . iacob . cap. . bard , aliâs , beard . see clack . bargaine and sale , as it seemeth by west . part . . symb . lib. . sect . . is properly a contract made of maners , lands , tenements , hereditaments , and other things , transferring the propertie thereof from the bargainer to the barganee . but the author of the new termes of lawe addeth , that it ought to be for money : saying farder , that this is a good contract for land , &c. and that fee-simple passeth thereby , though it be not said in the deed ( to haue and to hold the land to him and to his heyres , ) and though there be no liuerie and seisin made by the seller , so it be by deed indented , sealed , and enrolled , either in the countie where the land lyeth , or within one of the kings courts of records at westminster , within sixe moneths after the date of the deed indented , anno . h. . cap. . barkarie ( barkaria ) is a heath house . new booke of entries , titulo . assise corp . polit . . some call it a tanne house . baron ( baro ) is a french word , and hath diuers significations here in england . first , it is taken for a degree of nobilitie next vnto a vicount . bracton . lib. . cap. . num . . where he saith , they be called barones , quasi robur belli . and in this signification it is borowed from other nations , with whom baroniae be as much as prouinciae . petrus belluga in speculo princip . fol. . so barones be such , as haue the gouernment of prouinces , as their fee holden of the king : some hauing greater , some lesser authoritie within their territories , as appeareth by vincentius de franchis in diuers of his desceisions , and others . yet it may probably be thought , that of old times here in england all they were called barons that had such seigniories , as we now call court-barons , as they be at this day called seigneurs in france , that haue any such manor or lordship . yea , i haue heard by men very learned in our antiquities , that neere after the conquest , all such came to the parlament , and sate as nobles in the vpper house . but when by experience it appeared , that the parlament was too much pestered with such multitudes : it grew to a custome , that none shold come but such , as the king , for their extraordinarie wisedome or qualitie , thought good to call by writ ; which writ ranne ( hac vice tantùm . ) after that againe men seeing this estate of nobilitie to be but casuall , and to depend meerly vpon the princes pleasure , they sought a more certain hold , and obtained of the king , leters patents of this dignitie to them and their heyres male . and these were called barons by leters patents or by creation : whose posterity , be now by inheritance and true descent of nobilitie , those barons that be called lords of the parlament : of which kind the king may create more at his pleasure . it is thought neuerthelesse , that there are yet barons by writ , as wel as barons by leters patents , and that they may be discerned by their titles : because the barons by writ are those , that to the title of lord haue their owne surnames annexed , as compton , north , norice , &c. whereas the barons by leters patents , are named by their baronies . these barons which were first by writ , may now iustly also be called barons by prescription , for that they haue continued barons in themselues and their auncestors time , beyond the memorie of man. the originall of barons by writ master camden in his britannia pag. . in meo . referreth to henry the third barons by leters patents or creation , ( as i haue heard among our antiquaries ) were first created about the dayes of henry the sixth ▪ the maner of whose creation reade in master stowes annales , pag. . of all these you may also reade master ferui glorie of generositie , pa. & . and see m. skene de ver . signif . verb. baro. with sir thomas smith , lib. . de rep . anglor . cap. . who saith , that none in england is created baron , except he can dispend a thousand pound by yeare , or a thousand markes at the least . to these former , master seager ( by office ) norrey , lib. . cap. . of honour ciuill and militarie , addeth athird kind of baron , calling them barons by tenure , and those be the bishops of the land : all which by vertue of baronries annexed to their bishoprickes , haue alwaies had place in the vpper house of parlament , and are tearmed by the name of lords spirituall . baron in the next significatiō is an officer : as barons of the exchequer be to the king : of which the principall is called lord chiefe baron ( capitalis baro ) and the three other ( for so many there be ) are his assistants in causes of iustice , betweene the king and his subiects , touching causes appertaining to the exchequer . the lord chiefe baron at this day , is the chiefe iudge of the court , and in matter of lawe , information , and plea , answereth the barre , and giueth order for iudgment thereuppon . he alone in the terme time doth sit vpon nisi prius , that come out of the kings remembrancers office , or out of the office of the clerke of of the please , which cannot be dispatched in the mornings for want of time . he taketh recognisances for the kings debts , for appearances , and obseruing of orders . he taketh the presentation of all the officers in court vnder himselfe , and of the mayor of london , and seeth the kings remembrancer to giue them their oathes . he taketh the declaration of certaine receiuers accompts of the lands of the late augmentation , made before him by the auditors of the shires . he giueth the two parcel makers places by vertue of his office . the second baron in the absence of the lord chiefe baron , answereth the barre in matters aforesaid : he also taketh recognisances for the kings debts , apparences , and obseruing of orders . he giueth yearely the oath to the late maior and escheatour of london for the true accompt of the profits of his office . he taketh a declaration of certaine receyuers accompts . he also examineth the letters and summes of such shyreeues foraine accompts , as also the accompts of escheatours and collectours of subsidies and fifteens , as are brought vnto him by the auditors of the court. the third baron , in the absēce of the other two , answereth the barre in matters aforesaide , he also taketh recognisances , as aforesaide . he giueth yerely the oath of the late mayor and gawger of london for his true accōpting . he also taketh a declaration of certaine receiuers accompts : and examineth the leters and sūmes of such of the former accountants , as are brought vnto him . the fourth barons is alwaies a coursetour of the court , and hath bene chosen of some one of the clerks in the remembrancers offices , or of the clerke of the pipes office . he at the daies of prefixion , taketh oth of al high shyreeus and their vndershyreeues , and of all escheatours , baylifs , and other accountāts , for their true accounting . he taketh the oath of al collectours , controllers , surueyours and serchers of the custome houses , that they haue made true entrances in their bookes . he apposeth all shyreeues vyon their sūmons of the pipe in open court . he informeth the rest of the barons , of the course of the court in any mater that concerneth the kings prerogatiue . he likewise , as the other barons , taketh the declaration of certaine receiuers accompts : and examineth the leters and summes of such of the former accountants , as are brought vnto him . these barons of the exchequer , areauncient officers for i finde them named , westm . . ca. . anno . . ed. . and they be called barons , because barons of the realme were wont to be employed in that office . fleta . li. . ca. . s. thomas smith saith of them , that their office is to looke to the accompts of the prince : and to that end they haue auditors vnder them : as also to descide all causes , appertaining to the kings profits , comming into the exchequer by any meanes . this is in part also proued , by the statut anno . . ed. . ca. . & . anno . . eiusdem . stat . . ca. . & anno . . r. . stat . . ca. . & . & anno . . eiusd ca. ● . and hereupon they be of late , men learned in the common lawe of the realme : wheras in auncient times , they were others : viz. maiores & discretiores in regno , siue de clero essent , siue de curea . ockam in his lucubrations de fisci regij ratione . horn in his mirrour of iustices saieth , that barons were wont to be two , and they knights . ca. de la place del eschequer . then be there in this signification , barons of the cinque portes . anno . . ed. . stat . . ca. . et anno . . h . ca. . which are two of euery of the seuen towns , hastings , winchelsey , ry , rumney , hithe , douer , & sandwiche , that haue places in the lower house of parlament . cromptons iurisd . fo . . baron in the the third signification , is vsed for the husband in relation to his wife : which is so ordinary in all our lawe writers , that wright in french , as it were superfluous to confirme it by any one . baronet . i reade this word , anno . . r. . stat . . ca. . but i hould it falsely printed for baneret , or els to signifie all one with it . baronye ( baronia , baronagium ) is the fee of a baron . in which accompt are not only the fees of temporall barons , but of bishops also : who haue two respects : one , as they are spirituall men , without possessions , as was the tribe of levy among the israelites , being susteined by the only first frutes and tenthes of the other tribes . iosue . ca. . versue . . the other respect they haue , groweth from the bountie of our english kings , whereby they haue baronies at the least , & are thereby barons or lords of the parlament . this baronie ( as bracton saith , li. . ca. . is a right indiuisible : and therefore if an inheritance be to be divided among coparceners : though some capitall messuages may be divided : yet , si capitale messuagium sit caput comitatus , vel caput baroniae , he saith they may not be parcelled , the reason is , ne sic caput per plures particul as diuidatur , & plura iura comitatuum & baroniarum deveniant ad nihilum : per quod deficiat regnum , quod ex comitatibus & baronys dicitur esse constitutum . barre ( barra ) commeth of the french ( barre ) or barriere ( . i. repagalum , obex , vectis ) it is vsed in our common law , for a peremptory exception against a demaūd or plaint : and is by the author of the termes of law , defined to be a plee brought by the defendant in an action , that destroieth the action of the plaintiffe for euer . it is divided into a barre to common intent , and a barre speciall . abarte to a common intendment , is an ordinarie or generall barre , that ordinarily disableth the declaration or plee of the plaintiffe : a barre speciall is that , which is more then ordinarie , & falleth out in the case in hand or question , vpon some speciall circumstance of the fact . plowden . casu colthirst . fo . . a. b. for exāple , an executor being sued for his testators debt , pleadeth that he had no goods left in his hands , at the day when the writ was purchased or taken out against him . this is a good barre to common intendment , or ( prima sacie ) but yet the case may so fall out , that more goods might come to his hands sithence that time : which if the plaintiffe can shew by way of replication , then excep the haue a more especiall plee or barre to alleadge , he is to be condemned in the action . see also plowden in the case aofre named . fo . . a. b. and brooke . titulo . barre . nu . . & kitchin. fo . . barre also in the same signification , is devided into barre materiall , and barre at large . kitchin. fo . . a barre materiall ( as it seemeth ) may otherwise be called a barre speciall : as when one in the stoppe of the plaintiffes action , pleadeth some particular mater , as a descent from him that was the vndoubted owner , a feofment made by the auncester of the plaintiffe , or such like . a barre at large is , when the tenent or defendant by way of exception , doth not traverse the plaintifes title by pleading not guiltie , nor confesse and avoid it , but onely maketh to himselfe a title in his barre . as if in an assise of novel disseisin , the tenent pleade a feosment of a straunger vnto him , and giues but a colour onely to the plaintiffe . of this there is an apt example to be found . . h. . fo . . barre , is also in regarde of the effect , diuided into barre perpetuall & barre pro tempore . perpetuall is that , which overthroweth the actiō for euer . barre pro tempore is that , which is good for the present , and may faile heereafter : looke an example or two in broke titulo . barre . nu . . where he saith , that to plead ( plene administrauit ) is good , vntill it may appeare , that more goods come to the executors hands afterward , which also holdeth for an heire , that in an action of his auncesters debt pleadeth ( rien per discēt . ) this word is also vsed for a materiall bar : as the place where se●geants or coūcelers stand to pleade causes in courte , or prisoners to aunswere to their endictments . of which our cōmon lawyers , that be lycēced to plead , in other contries called licentiati ) are termed barristers . anno . . h. . ca. . barrator ( barectator ) commeth from the french ( barat . i. astutia ) and is neere the french it selfe in significatiō . for ( barateur ) in that tong betokneth a deceiver : and a barator in our common law , is a common wrangler , that setteth men at ods , and is himselfe never quiet , but at brawle with one or other . to this effect you may read m. lamberds eirenarcha . pa . who saith likewise , that barettor ( for so he writeth is ) may seeme to come from the latine ( baratro ) or ( balatro ) that is , a 〈◊〉 knaue or vnthrift , and ( by a metaphor ) a spot in a cōmon wealth see. the statute of champerty . an . . ed. . stat . . ca. vnico and west . . ca. . anno . . ed. i. m. skene de verb. signif . verbo barratr● , saith that barratours be symonists called of the italian word ( barrataria ) signifying corruption or briberie in a iudge giuing a false sentence for mony : whome you may read more at large : as also hortensius cavalcanus , in his tractat de brachio reg . parte . . nu . . whose words are : barataria veròdicitur , quando iudex aliquid petit indebitum , vt iustitiam faciat . who also . nu . . partis . saith thus : barraterii appellātur , qui praetorium nimis frequentāt . and in another place of the same worke . baratria dicitur , quia fit quoddam barratrum . i. commutatio pecuniae cum iustitia , &c. see also aegidius bossius in practica criminali . titulo de officialibus corrupt . &c. nu . . & . baratariam committunt , iudices , qui iusticiā auro vendunt . paris puteola . de syndicatu . verbo barataria . pa. . barre fee , is a see of . 〈◊〉 . that every prisoner acquited of felonie payeth to the gaoler . crompt . iustice of peace . fo . . b. barrell , is a measure of wine , oyle , &c. conteining the . parte of a tonne , the . of a pipe , and the second of a hogsehead , that is , . gallons and a halfe . anno . . r. . ca. . but this vessel seemeth not to conteine any certaine quantitie , but differeth according to the liquor , for a barrell of beere conteineth . gallons , the kilderkin , . and the firkin , . a barrell of ale . gallons the kilderkin . and the firkin . . gallons . anno . . h. . ca. . barriers , commeth of the french ( barres ) and signifieth with vs that which the french men call ( ieu de barres . i. palastrā . ) a martial sport or exercise of mē , armed and fighting together with short swords , within certain limits or lists , whereby they are severed from the beholders . barter , may seeme to come of the french ( barater . i. circumv●nire . ) it signifieth in our statutes , exchange of wares with wares . an . . r. . ca. . & so bartry the substantiue . anno . . eliza. ca. . the reason may be , because they that choppe and change in this maner , doe what they can for the most part , one to ouer-reach the other . see barratour . base estate , is in true french ( basestat ) it signifieth in our cōmon law , that estate which base tenents haue in their lands . base tenents be they ( as m. lamberd saith in his explica . of saxōword● . verbo paganus ) which do to their lords villeinous service . the author of the termes of law in his tractat of old termes , saith that to hold in see base , is to hold at the will of the lord . kitchin. fo . . seemeth to make base tenure and franck to be contraries : where it appeareth , that he putteth copy holders in the number of base tenents . and out of these , i thinke , that it may be probably coniectured , that everie base tenent holdeth at the will of the lord , but yet , that there is a difference betweene a base estate , and and villenage , which fitzh . in his nat . br . fo . . b. c. seemeth to cōfound . for the aboue named author of the termes of law saith in the place before cited , that to hold in pure villenage , is to doe all that the lord will commaund him . so that if a copie holder haue but base estate , he not holding by the performance of everie commandement of his lord , cannot be saide to hold in villenage . whether it may be said , that copy holders , be by custome and continuānce of time , growne out of that extreame servitude , wherein they were first created , i leaue to others of better iudgement : but fith. loco citato saith , tenure by copie is a terme but lately invented . base courte , is any court that is not of record , as the court baron . of this read kitchin. f. . . &c. base fee , see base estate . baselard ( baslerdus ) in the statut . anno . . r. . ca. . signifieth a weapon , which m. speight in his exposition vpon chancer , cal-leth pugimem vol 〈◊〉 . bastard ( bastardus ) see bastardy , and see skeene de verbo siguif . verbo bastardus . bastardy ( bastardia ) commeth of the french ( bastard . i. ●othu● ) cassanans de consuetis . burg. pa. . saith ( bastard ) and ( silius naturalis ) be all one . bastardy in our common law , signifieth a defect of birth , obiected to one begotten out of wedlock . bract. li. . ca. . per totum . how bastardie is to be prooued , or to be inquired into , if it be pleaded , see rastalls booke of entrise . tit . bastardie . fo . . kitchin. fo . . maketh mention of bastardie speciall , and bastardie generall . the difference of which is , that bastardie generall is a certificate from the bishop of the dioces to the kings iustices , after iust enquiry made , that the party inquired of , is a bastard or not a bastard vpon some question of inheritance . bastardy speciall , is a suite commenced in the kings court , against him that calleth another bastard : so termed ( as it seemeth ) because bastardy is the principall and especiall case in triall , and no inheritance contended for . and by this it appeareth , that in both these significations , bastardy is rather taken for an examination or triall , whether a mans birth be defectiue or illegitimat ▪ itselfe . see broke titulo . bastardy . 〈◊〉 . . and docter ridlies booke . pa. . . baston , is in french a staffe , club , or coulestaffe . it signifieth in the statuts of our realme , one of the warden of the fleets his seruants or officers , that attendeth the kings court with a red staffe , for the taking of such to warde , as be committed by the court . so it is vsed . anno . . r. . ca. . anno . eliz. ca. . batable ground , seemeth to be the ground in question heretofore , whether it belōged to england or scotland , lying betweene both the kingdomes . anno . . h. . ca. . as if we should say debatable ground . for by that name . m. skene . de verbo . sign . verbo plegius . calleth ground , that is in controuersie betweene two . battell ( duellum ) commeth of the french ( bataille . i. bellum , praelium ) and signifieth in our cōmon lawe , a triall by combate . the maner wherof becauseit is long , and full of ceremonies , i doe for the better and more full vnderstanding of it , referre you to glanvile , lib. . cap. . . . to bracton , lib. . tract . cap. . fol. to britton , cap. . and to s. thomas swith de repub . anglorum , li. . cap. . & lib. . cap. . see bombat . battery cōmeth of the french batre . i. verberare , cudere , percutere ) and signifieth in our common lawe , a violent striking of any man , which the civilians call iniuriam personalem , quia personae infertur per verbera , cruciatū , &c. wesemb . parat . Π. de iniur . & fam . libel . baubels ( baubella ) is an old word , signifying iewels . ro. hoveden parte poster . suorum annal . fo . . b. bearding , aliâs , barding of wooll see clack . bearers , signifie all one with maintainers , anno . edvar . . cap. . beconage ( beconagium ) signifieth money paid for the maintenance of becons . bewpleder ( pulchrè placitando ) is made of . . french words ( beau . . decorus , formosus , pulcher ) and ( pleder . . disputare , & causam agere ) it signifieth in our common law , a writ vpon the statute of marlbridge or marlborow , made the . yeare of h. . ca. . whereby it is provided , that neither in the circuit of iustices , nor in counties , hundreds , or courts-baron , any fines shall be taken of any man for faire pleading , that is , for not pleading fairely or aptly to the purpose . vpon which statute , this writ was ordained against those , that violate the lawe herein . see fitz. nat . br . fol. . a. b. c. whose definition is to this effect : the writ vpon the statute of marlebridge for not faire pleading , lyeth where the shyreeue or other bailiffe in his court , will take fine of the party plaintiffe or defendant , for that he pleadeth not fairely , &c. bedell ( bedellus ) commeth of the french ( bedeau . i. apparitor ) & it signifieth with vs , nothing else but a messenger or seruitour belonging to a court , as a court-baron or leet , kitchin fol. . where you may see his oath : or to the court of the forest , manwood parte pri . of his forest lawes . pag. . in these words : a bedell is an officer or seruant of the forest , that doth make all maner of garnishments of the courtes of the forest , and also all maner of proclamations , as well within the courts of the forest as without : and also doth execute all the processes of the forest . he is like to a bailiffe errant of a shyreeue in a countie , &c. benefice ( beneficium ) is generally taken for all ecclesiasticall liuings , be they dignities or other , as anno . r. . sat . . ca. where benefices are diuided into electiue , and benefices of gift . so is it vsed in the canon lawe also . duarenus de beneficiis . lib. . cap. . beneficio primo ecclesiastico habendo , is a writ directed from the king to the chanceler , to bestow the benefice that first shall fall in the kings gift , aboue or vnder such a valew , vpon this or that man , regist . orig . fol. . b. benevolence ( benevolentia ) is vsed both in the chronicles and statutes of this realme , for a voluntarie gratuitie giuen by the subiects to the king. looke stowes annals pag. . that it hath bene something aunciently accustomed , it appeareth by him and by the statute anno . ric. . cap. . where it is called a newe imposition : and in that respect reprehended by that tyrant in his predecessors : whether iustly or not i cannot say , nor mind to dispute . but stowe , pag. . saith , that the inuention grewe from edward the fourths dayes . you may find it also , anno . h. . ca. . to haue bene yeelded to that worthy prince , in regard of his great expences in wars and otherwise . this is also mentioned and excepted out of the pardon , anno . ed. . cap. . it is in other nations called ( subsidium charitativum ) giuen somtime to lords of the fee , by their tenents , somtime to bishops by their clergy . matthaeus de afflictis , de scis . . cassan . de conseut . burg. pag. . . baldus consitio . . vol. . pag. . of this maenochius maketh mention , lib. . centur . 〈◊〉 . ca. . & . shewing , when it is lawful for a prelate charitativum subsidium à sibi subditis exigere , & quanta debeat esse eius summa , setting downe eight iust causes of this exaction . besaile ( proavus ) is horowed of the french ( bisayeul . i. le pere de man pere grand ) the father of my grandfather . in the common law it signifieth a writ , that lieth , where the great grandfather was seised in his demesne as of fee , of any lands or tenements in fee-simple , the day that be dyed , and after his death a strāger abateth , or entreth the same day vpon him , and keepeth out his heyre , &c. the forme and farder vse of this writ , reade in fitz. nat . br . fol. . d. e. f. &c. beastes of chace ( ferae campestres ) be fiue of the forest , chace , or parke : that is , the bucke , the doe , the foxe , the martron , and the roe , manwood parte prim . of his forest lawes , pag. . & parte . cap. . num . . beastes of the forest ( ferae sylvestres ) are the hart , the hind , the hare , the boare , and the wolfe , manwood parte . of his forest lawes , cap. . num . . beasts and fowles of waren , are the hare , conie , fesant , and the pertridge , manwood parte . cap. . num . . bestaile , commeth of the french ( bestial . i. pecus ) it seemeth with vs to signifie all kind of catell taken for the kings provision , anno . ed. . cap. . and bestiall is generally vsed for all kind of catell , anno . iacobi cap. . bidding of the bedes , was a charge or warning , that the parish priest gaue to his parishioners , at certaine especiall times , to say so many pater nosters , &c. vpon their beades , anno . h. . cap. . bigamie ( bigamia ) signifieth a double mariage . it is vsed in the common lawe , for an impediment that hindreth a man to be a clerke , by reason that he hath bene twice maried . for vpon those words of s. paule to timothie the first . cap. . vers . . ( opertet ergo episcopum irreprehensibilem esse , & vnius vxoris virum : ) the canonists haue founded their doctrine , that he that hath bene twice maried , may not be a clerke . and also him that hath maried a widow , they by interpretation , take to haue bene twice maried . and both these they do not onely exclude from holy orders , but also deny them all priuiledges that belong vnto clerkes . but the author of the new termes of lawe well saith , that this lawe is abolished by anno . ed. . cap. . and to that may be added the statute , anno . elizab. cap. . which alloweth to all men that can read as clerkes , though not within orders , the benefite of clergie in case of felonie not especially excepted by some other statute . bilanciis deferendis , is a writ directed to a corporation , for the carying of weights , to such or such a hauen , there to weigh the wools that such a man is licenced to trāsport , reg. orig f. . a. bilawes , are orders made in court leets or court barons by common assent , for the good of those that make them , farder then the publique lawe doth binde . coke vol. . fo . . a. kitchin fo . . & . these in scotland are called ( burlawe ) or ( birlawe ) skene de verbo : sign . verbo burlawe : where he saith thus : lawes of burlawe , are made and determined , by consent of neighbours elected and chosen by common consent , in the courts called birlawe courts . in the which cognition is taken of compleints betwixt neighbour and neighbour : which men so chosen , are iudges and arbitratours to the effect aforesaide , and are called birlawe men , for ( bawr ) or ( bawrsman ) in dutch is ( rusticus ) and so ( birlaw ) or ( burlaw ) leges rusticorum . hetherto m. skene . bilinguis , though it signifie in generality a double tounged man ; yet in our common lawe , it is vsed for that iury , that passeth betweene an english man and an alien . wherof part must bee englishmen , and part straungers . anno . . ed. . ca. . bille ( billa ) is diuersly vsed among our cōmon lawyers . first ( as west . saith pa. . symb . li. . sect . . it is al one with an obligation , sauing that whē it is in ēglish , it is commonly called a bill , and when it is in latine , an obligation . but i heare other good lawyers say , that a bill , though it be obligatorie , yet is without condition or forfeiture for non payment : and that the obligation hath both . bille secondly , is a declaration in writing , that expresseth either the griefe and the wrong that the complaynant hath suffered , by the party complained of , or els some fault , that the party complayned of , hath committed against some lawe or statute of the common wealth . this bille is sometime offered vp to iustices errants in the generall assises : sometime , and most of all , to the lord chanceler of england , especially for vnconscionable wrongs done , sometime to others hauing iurisdiction , accordingly as the law , wheruppon they are grounded , doeth direct . it containeth the fact complained of , the dammages thereby suffered , and petition of processe against the defendant for redresse . west . parte . . simbol . titulo supplications . sect . . whom you may reade at large touching this mater . billa vera , is ( as it were ) a word of arte in our common lawe . for the grand enquest empaneled and sworne before the iustices in eare &c. indorsing a bill , whereby any crime punishable in that court , is presented vnto them , with these two words ; do signifie thereby , that the presentor hath furnished his presentment or denunciation with probable euidence , and worthy of farder consideration . and thereuppon , the party presented by the same bill , is said to stand indicted of the crime , and so tyed to make answer vnto it , either by confessing , or trauersing the indictment . and if the crime touch the life of the party indicted , it is yet referred to another enquest , called the enquest of life and death : who if they finde him guilty , then he standeth conuicted of the crime , and is by the iudge to be cōdemned to death . see ignoramus , see indictment . billets of gold , commeth of the french ( billot . . massa auri . anno . . ed . stat . . ca. . bynny peper . anno . . iaco. ca. . blacke maile , is halfe english , halfe french . for in french ( maille ) signifieth a smal peece of mony , which we cal a halfepeny . it signifieth , in the counties of comberlād , northumberland , westmerland , and the bishopricke of durisme , a certaine rate of mony , corne , catell , or other consideration , paide vnto some inhabiting vpon or neare the borders , being men of name and power , allied with certaine , knowne to be great robbers and spoile-takers within the saide counties , to the end thereby to be by them freed , protected , and kept in safty , from the daunger of such as doe vsually robbe and steale in those partes . an . . eliza. ca. . blacke rodde , is the huiffier belonging to the order of the garter , so called of his blacke rodde that he carrieth in his hand . he is of the kings chamber , and also huissier of the parlament . blanks , cōmeth of the french ( blanc . . candidus , albus ) it signifieth a kind of coine that was coined in the parts of frāce . by k. h. that were subiect to england : the valew whereof was eight pence . stowes annals . pa. . these were forbidden to be current within this realme . a. . h. . ca. . the reason why they were called blankes may be , because at the time these were coyned in france , there was also a peece of gold coyned , which was called a ( salus ) of the value of . shillings from which this siluer was in name distinguished by the colour . bloody hand . see backberend . blomary , is one of the forges belonging to an iron mill ( which also seemeth otherwise to be tearmed a finary . ) the vse wherof if you will vnderstand , you must knowe , that first there is a fornace , wherin the mine-stones are melted and cast into a raw iron , fashioned into long wedges three square . that be called sows . then be there two forges like vnto smithes forges , but much bigger , the one whereof is called the blomary or ( as it seemeth ) the finary , into the which being maintained with a charcole fire blowne with bellowes , made to goe by water , are cast the saide sowes of raw iron , and melted againe , and by a workman called the finary man , are wounde and wrought rounde , and afterwarde beaten by a hammer into little wedges about a yarde long , which are called bloomes . then is there another forge called the hammer , into which these bloomes are cast , and by a workman ( called the hammer man ) againe chafed and made soft in a charcole fire , blowne likewise with bellowes caused to goe by the water : and after caried by the saide hammer man , and put vnder the great hammer driuen also by the water . and so the saide bloomes are drawen , fashiōed , and made into such barres of iron of diuers sortes and formes , as we see commonly sould . of these you may reade in the statut . anno . . elizab. ca. . see baye . bloodwit ( blodwita ) is compoūded of . saxon words ( blout . i. sanguis ) and ( wit ) for the which we haue the word ( wite ) still in the west parts of england signifying a charging of one with a fault , or an vpbraiding . and speight in his expositions vpon chawser saith , that ( to wit ) is as much as to blame . ( to twit ) in some other places of this land signifieth as much as ( to hitte in the teeth ) or to vpbraide . this bloodwit is a wot● vsed in charters of liberties aunciently graūted , and signifieth an amercement for shedding of blood . so that whosoeuer had it giuen him in his charter , had the penaltie due for shedding of blood graunted vnto him . rastall in his exposition of words . skene de verbo . signif . writeth it ( bludveit ) and saith that ( veit ) in english is iniuria vel misericordia : and that ( bludveit ) is an amercement or ( vnlawe ) as the scottishmen call it , for wrong or iniurie , as bloodshed is . for he that is infest with ( bludveit ) hath free libertie to take all amercements of courts for effusion of blood . fleta saith , quod significat quietantiam misericordiae pro effusione sanguinis . li. . ca. . bockland , see charterland . see copie bould and free hould . bonis arrestandis , is a writ , for the which see arrestandis bonis . bonis non amovendis , is a writ to the shyreeues of london , &c. to charge them , that one condemned by iudgement in an action , and prosecuting a writ of errour , be not suffered to remooue his goods , vntill the errour be tried . register . orig . fo . . b. borow ( burgus vel burgum ) may either come from the french ( burg . i. pagus ) or from the saxon ( borhoe . i. vadium , pignus . ) it signifieth here in england a corporate towne that is not a citie . anno . . ed. . ca. , namely all such as send burgesses to the parlament : the number whereof you may see in m. cromptons iurisd . fo . . it may probably be thought , that it was aunciently taken for those companies consisting of ten families , which were combyned to be one anothers pledge or borhoe : see bracton . li. . tractat . . ca. . see headborowe , and borowhead , and m. lambard in the duties of constables . pa. . lynwood vpon the prouinciall ( vt singula de censibus ) , speake to this effect : aliqui interpretātur burgum esse castrum , vel locum vbi sunt crebra castra . vel dicitur burgus , vbi sunt per limites habitacula plura constituta . ) but then setting downe his owne opinion , he defineth it thus : burgus dici potest villa quacunque unque alia a ciuitate , in qua est vniuersit as approbata . and that he proueth oute of the . booke of iustinians godex . titulo de fund . rei priuatae . . et . l. . eius tituli . where burgus is termed corpus . some deriue it from the greeke ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. turris ) see m. skene de verbo . signif . verbo . borghe . the late author m. verslegan in his restitution of decaied intelligences , saith , that ( burg ) or ( burnh ) whereof we say yet ( borough ) or ( bourrow ) metaphorically signifieth a towne , hauing a wall , or some kinde of closure about it : also a castell . all places that in old time had among our auncesters the name of borrough , were places one way or other fensed or fortified . bordlands , signifie the demeasns , that lords keepe in their hands , to the maintenance of their bord or table . bract. li. . tractat . . ca. . nu . . borowhead alias headborowe , ( capitalis plegius ) by m. lamberds opiniō in his treatise of cōstables , is made vp of these two words . ( borhoe . i. pledge and ( bead ) and signifieth a head orchiefe pledge . and in explication of this , and other saxon words of this nature , he maketh an excellent rehearsall of some auncient customes of england , during the reigne of the saxons , which you may reade . this borowhead ( in short ) was the head or cheife man of the decurie or borhoe , that there he speaketh of , chosen by the rest to speake , & to doe in the name of the rest , those things that concerned them . see borowholders . borowhowlders , aliàs bursholders , be quasi borboe ealders , signifing the same officers that be called borowheads . ( lamb. in the duties of constchles . ) bracton calleth them ( borghie aldere ) li. . tractat . . ca. . borow english , is a custumarie descent of lands or tenements , whereby in all places where this custome holdeth , lands and tenemenrs descend to the yongest sonne : or , if the owner haue no issue , to his yongest brother : as in edmunton . kitchin. fo . . and the reason of this custome , as ( litleton saith ) is , for that the yongest is presumed in lawe , to be least able to shift for himselfe . borow goods divisable , i finde these words in the statute of acton . burnel . anno . ed. . statute vnico . and dare not confidently set downe the true meaning of them . but as before the statute of . & . h. . no lands weare diuisable at the common law , but in auncient baronies : so perhaps , at the making of the foresaide statute of acton burnel , it was doubtfull , whether goods were deuisable but in auncient borowes for it seemeth by the writ . de rationabili parte bonorum , that aunciently the goods of a man were partible betwene his wife and children . bote , signifieth compensation . lamb , explication of saxon words . thence cōmeth ( manbote , aliâs monbote ) that is compensation or amends for a man slaine , which is bound to another . for farder vnderstanding whereof , it is to be seene in k. inas lawes , set out by m. lamberd . ca. . what rate was ordeined for the expiation of this offence : see hedgebote , plowbote , howsebote . & reade m. skenede verbo . signif . verbo . bote. botiler of the king ( pincerna regis ) anno . ed. . ca. . is an officer that prouideth the kings wines : who ( as fleta li. . ca. . saith ) may by vertue of his office out of every shippe loaden with sale wines , vnum doleum eligere in prora navis ad opus regis , & aliud in puppi , & pre qualibet pecia reddere tantùm . solid . mercatori . si autem plura inde habere volucrit , bene licebit : dum tamen precium fide dignorum iudicio pro rege appenatur . bowbearer , is an vnder officer of the forest ( as m. crompton in his iurisdict . fo . , setteth down , sworne to the true performance of his office in these words : i will true man be to the master forister of this forest , & to his lieuerenent : and in the absence of them , i shall truly oversee , and true inquisition make , as well of swornemen as vnsworne in euerie bayliwick , both in the north bayle . and south bayle of this forest , and of all maner of trespasses done , either to vert or venison , i shall truly endeavour my selfe to attach , or cause them to be attached , in the next court attachement , there to be presented , without any concealment had to my knowledge : so helpe me god , &c. bracton ( otherwise called henry of bracton ) was a famous lawyer of this land , renowmed for his knowledge both in the common and civill lawes , as appeareth by his booke every where extant . he liued in the daies of henry the third . stawn . praero fo . . b. and as some say , lord cheife iustice of england . bread of treate , and bread of coket . anno . . h. . statuto . . of bread and ale . bred , signifieth broade . this word bracton vseth , li. . tracta . . ca. . nu . . proverbially thus to lange and to bred the meaning whereof you may there finde , word for word it is , as we now speake two long and two broad : or two in length , and two in breadth . breuibus , & ra 〈…〉 liberandis , is a writ or mandat to a shyreeue to deliuer vnto the newe shyreeue chosen in his roome , the county with the appertenances , together with the rols , briefes , remembrances , and all other things belonging to that office . register . original . fo . . a. bribours , commeth of the french ( bribeur . i. mendicus ) it seemeth to signifie with vs , one that pilfreth other mens goods . anno . ed. . stat . . ca. vnico . brief ( breve ) commeth from the french ( brefou breif . i. brevis ) and in our common lawe , signifieth a writ , whereby a man is summoned to answer to any action : or ( more largely ) any precept of the king in writing ; issuing out of any court , whereby he commaundeth any thing to be done , for the furtherance of iustile or good order . the word is vsed in the ciuile lawe , some time in the singular number , and masculine gender , as l. vlt. coa . de conueniendis fisci debitoribus . li. . tit . . you haue these words : inter chartulas confiscati brevis , quidam adseueratur invētus , qui nomina cōtineba● debitorū . where it is vsed for a short note . again , i finde a title restored by gothofred ; in the first booke of the code . de quadrimenstruis brevibus . quadrumenstrus autem breves erant , qui de singulis indictionum pensionibus , quarte quoque mense fo●utis , confic●e● antur . also lampridius in alexandro hath it singularly thus : notarium , qui falsum causae brevem in consilio imperatorioretulisset , &c. and in the authētiques . novel . . ca. . you haue this word ( breviatores . i. brevium proscriptores ) . breves autem , brevia , brevicula , sunt chartae sive libelli breves , as galbofred . there noteth . where he noteth likewise out of zonaras in garthagin : cōcilio , that this is a greeke word , thus : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . see skene de verbo . signif . verbo breue . of these breifes see also bracton . li. . tract . . ca. . nu . . breve quidem cùm sit formatum ad similitudinem regula iuris , quia breviter & paucis verbis intentionem proferentis exponit & explanat , sicut regula iuris rem quae est breviter charrat . non tamen ita breve esse debet , quin rationem & vim intentionis contineat . &c. brigandine ( lorica ) is the french ( brigandine ) that is a coate of maile . this is vsed . anno . & . ph. & mar. ca. . brigbote , significat quietantiam reparationis pontium . fleta , li. . ca. . it is compounded of ( brig ) a bridge and ( bote ) which is a yeelding of amends or supplying a defect . see ( bote ) and bruck-bote . britton , was a famous lawyer , that liued in the daies of k. edward the first , at whose commandemēt , & by whose authority he writ a learned booke of the lawe of this realme . the tenure wherof runneth in the kings name , as if it had beene penned by himselfe , answerably to the institutions , which iustinian assumeth to himselfe , though composed by others . stawnf . prare fo . . & . s. edward cooke saith , that this britton writ his booke in the fifte yeare of the said king reigne . li. . fo . . a. & lib. . fo . . a. m. guin . in the preface to his reading , mencioneth , that this iohn britton was bishop of hereford . broke , commonly called s. robert broke , was a greate lawyer and lord chiefe iustice of the cōmon plees in queene mar. 〈◊〉 time . cromptons iustices of peace . fo . ● b. he made an abbridgement of the whole lawe , a booke of highe accoumpt . broker ( brocarnis ) seemeth to come from the french ( broieur tritor ) that is a gryneder or breaker into small peaces . because he that is of that trade , to deall in maters of mony and marchandise betwene englishe men and strangers , doth draw the b●rgaine to particulars , and the parties to conclusion , not forgetting to grinde out somthing to his owne profit . those men be called broggers . anno . . r. . ca. i. it may not improbably be said , that this word commeth from carder . i. cavillari . ) because these kinde of men , by their deceitfull 〈…〉 ches and abusing their true made , many times inuegle others : in scotland they be called ( broccary ) and in their owne idiome , blockers or brockers , that is , mediators or intercessors in any trāsaction , paction , or contract : as in buying or selling , or in contractting mariage . skene de verbo . signi . verbo broccarij . he that will know what these brokers were wont & ought to be let him read the statut . anno . . iacobi . ca. . these in the civile lawe are called ( proxenetae ) as also of some ( licitatores & mediatores titulo de proxeneticis . in digestis . this kind of dealer is also of the romanes called ( pararius ) senece . li. . de benef . ca. . caelius rhideginus , libro . . ca. . & li . cap. . broderers ( commeth of the french ( brodeur ) and that commeth of ( bordure . i. fimbria , limbus ) the edge or hemme of a garmet . and that because it is distinguished frō the rest , most cōmōly , by some conceipted or costly worke ; he that worketh it , is called ( brodeur ) in french , and broderor or embroderer with vs. brode halpeny , commeth of the three saxon words ( bret , or bred , ) 〈◊〉 aboord : and ( halve ) that is , for this or that cause ( cuius rei gratie ) as the latinists speake , and ( penning ) it signifieth a tolle or custome for setting vp of tables or boords in a faire or market . from the which they that are freed by the kings charter , had this word mentioned in there leters patents . in so much , as at this day the freedome it selfe ( for shortnesse of speech ) is called by the name of brodehalpenie . broggers . see brokers . bruckbote ( pontagium ) is compounded of two german words ( bruck . i. pons , ) and ( bote . i. compensatio . ) it signifieth with vs , a tribute , contribution , or ayde toward the mending or reedifiing of bridges ; whereof many are freed by the kings charter . and thereupon the word is vsed for the very libertie or exemptiō from this tribute . see pontage & brigbote . bull ( bulla ) seemeth to come from the greeke , ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) . i. consilium ) as polidorus virgilius saith , de inventio . rerum . lib. . cap. . it signifieth the leters , by the canonists called apostolique , strengthened with a leaden seale , and containing in them the decrees or commandements of the pope or bishop of rome . the word is vsed many times in our statutes : as anno . h. . cap. . & anno . & . ph. & ma. ca. . bullion , cometh of the french ( billon ) that is , the place where gold is tried . it signifieth with vs , gold or siluer in the masse or billet , anno . ed. . stat . . cap. . and sometime the kings exchange or place , whether such gold in the lumpe is brought to be tryed or exchanged , anno . ed. . stat . . cap. . & anno . h. . cap. . see skene de verbo . signif . verbo bullion . burghote , commeth of ( burg . i. castellum ) and ( bote . i. compensatio ) and signifieth a tribute or contribution toward the building or repairing of castels , or walles of defence , or toward the building of a borow or city . frō this diuers had exemption by the auncient charters of the saxon kings . whereupon it is taken ordinarily for the exemption or libertie it selfe . rastals expos . of words . fleta hath these words of it : significat quiet antiam reparationis murorum civitatis vel burgi li. . cap. . burgh english . see borow english . burgage ( burgagium ) is a tenure proper to cities & townes , whereby men of cities or borowes , hold their lands or tenements of the king , or other lord for a certaine yearely rent . old tenures : it is a kind of socage . swinborn . parte . § . . nu . . burglarie ( burglaria ) is compounded of two french words , ( bourg . i. pagus , villa ) and ( larecin , i. furtum , ) or of ( bourg & laron ) coke lib. . fol. . b. it is , according to the acceptance of our common lawe , thus defined : burglarie is a felonious entring into another mans dwelling house , wherein some person is , or into a church in the night time , to the end to commit some felonie therein : as to kill some man , or to steale somewhat thence , or to do some other felonious act there , albeit he execute not the same . if the intent , or fact of this offender , be to steale , this is like robberie , if to murder , it differeth not much from murder , and so of other felonies . west . parte . symbol . titulo . indictments . sect. . burglarie in the naturall signification of the word , is nothing , but the robbing of a house : but as it is ( vox artis ) our common lawyers restraine it to robbing a house by night , or breaking in with an intent to robbe , or to do some other felonie . the like offence committed by day , they call house-robbing , by a peculiar name . how many wayes burglarie may be committed , see cromptons iustice of peace , fol. . b. & fol. . . butlerage of wines , signifieth that imposition of sale wine brought into the land ; which the kings butler , by vertue of his office , may take of euery shippe , anno . h. . cap. . for the which see more in botyler . c cablish ( cablicin ) among the writers of the forest lawes , signifieth brush wood , manwood parte pag. . cromptons iurisd . fol. . calamus , is a cane , reed , or quill , the diuers kinds wherof , you haue set downe in gerards herball . lib. . cap. . this is comprized among merchandize and drugs to be garbled , in the statute anno . iacobi , cap. . calendrin of worsseds . anno . h. . cap. . & anno . eiusdem . cap. . cantred , is as much in wales , as an hundred in england . for cantre in the british tongue signifieth centum . this word is vsed anno . h. . cap. . cape , is a writ iudiciall touching plee of land or tenements , so tearmed ( as most writs be ) of that word in it selfe , which carieth the especiallest intention or end thereof . and this writ is diuided in ( cape magnum , & cape parvum : ) both which ( as is before said in attachment ) take hold of things immoueable , and seeme to differ betweene themselues in these points . first , because ( cape magnum ) or the ( grand cape ) lyeth before appearance , and ( cape parvum ) afterward . secondly , the ( cape magnum ) summoneth the tenent to aunswer to the default , and ouer to the demaundant : ( cape parvum ) summoneth the tenent to aunswer to the default onely : and therefore is called ( cape parvum ) or in french english ( petit cape . ) old. nat . br . fol. . . yet ingham saith , that it is called ( petit cape ) not because it is of smal force , but that it consisteth of few words . ( cape magnum ) in the old nat . br . is thus defined . this writ is a iudiciall , and lyeth where a man hath brought a ( praecipe quod reddat ) of a thing that toucheth plee of land , and the tenent make default at the day to him giuen in the writ originall : then this writ , shall goe for the king , to take the land into the kings hands : and if he come not at the day giuen him by the ( grand cape ) he hath lost his land , &c. a president and forme of this writ you may see in the register iudiciall , fol. . b. it seemeth after a fort to containe in it the effect ( unssionis in possessionem ex primo & secundo decrete ) among the civilians . for as the first decree seiseth the thing , and the second giueth it from him , that the second time defaulteth in his appearance : so this ( cape ) both seiseth the land , and also assigneth to the partie a farder day of appearance , at which if he come not in , the land is forfeited . yet is there difference betweene these two courses of the ciuill and cōmon lawe : first , for that ( missio in possessionem ) toucheth both moueable and immoueable goods , whereas the ( cape ) is extended only to immoueable : secondly , that the partie being satisfied of his demaund , the remanet is restored to him that defaulted : but by the ( cape ) all is seised without restitution : thirdly , ( missio in possess : ) is to the vse of the partie agent , the ( cape ) is to the vse of the king . of this writ , and the explication of the true force and effect thereof , reade bracton lib. . tract . . cap. . num . . . & . see cape ad valentiam . cape parvum , in the old. na . br . fol. . is thus defined : this writ lyeth , in case where the tenent is summoned in plee of land , and commeth at the summons , and his appearance is of record , and after he maketh default at the day that is giuen to him : then shall goe this writ for the king , &c. of this likewise you haue the form in the register iudiciall , fol. . a. why it is called cape parvum , see in cape magnum . of both these writs , reade fleta lib. . cap. . 〈◊〉 . magnum & seqq . cape ad valentiam , is a species of cape magnum , so called of the end whereunto it tendeth . in the old nat . br : fol. . . it is thus defined or described : this writ lyeth , where any impleaded of certaine lands , and i vouch to warrant another , against whom the summons ad warrantizandum , hath bene awarded , and the shyreeue commeth not at the day giuen : then if the demandant recouer against me , i shall haue this writ against the vouchee , and shall recouer so much in value of the land of the vowchee , if he haue so much : and if he haue not so much , then i shall haue execution of such lands and tenements , as descend vnto him in fee-simple : or if he purchase afterward , i shall haue against him a resummons : and if he can nothing say , i shall recouer the value . and note ye , that this writ lyeth before apparence . thus farre goeth the booke . of these , and the diuers vses of them , see the table of the register iudiciall , verbo . cape . capias , is a writ of two sortes , one before iudgement called ( capias ad respondendum ) in an action personall , if the shyreeue vpon the first writ of distresse returne ( nihil habet in baliua nostra : ) and the other is a writ of execution after iudgement , being also of diuers kindes ( viz. capias ad satisfaciendum , capias pro fine , capias vtlagatum , capias vtlaga 〈…〉 & inquiras de bonis & catallis ) . capias ad satisfaciendum , is a writ of execution after iudgement , lying where a man recouereth in an action personall , as debt , or dammages , or detinew in the kings court : and he against whome the debt is recouered , and hath no lands nor tenemēts , nor sufficient goods , wherof the debt may be leuied . for in this case , he that recouereth , shal haue this writ to the shreue , commanding him that he take the body of him , against whome the debt is recouered : and he shal be put in prison , vntill satisfaction be made vnto him that recouered . capias pro fine , is where one being by iudgement fined vnto the king , vpon some offence committed against a statut , doth not discharge it according to the iudgement . for by this is his body taken , and committed to prison , vntill he content the king for his fine . coke . li. . fo . . a. capias vtlagatum , is a word of execution , or after iudgement , which lyeth against him that is outlawed vpon any suite : by the which the shyreue vpon the receite thereof , apprehendeth the party outlawed , for not appearring vpon the ( exegend ) and keepeth him in safe custodie vntill the day of returne assigned in the writ : and then presenteth him vnto the court , there farder to be ordered for his contempt . capias vtlagatum , & inquiras de bonis & catallis , is a writ al one with the former , but that it giueth a farder power to the shyreeue , ouer and beside the apprehension of the body , to inquire of his goods and cattels . the forme of all these writs see in the ould nat . br . fo . . and see the termes of law , verbo proces . lastly you may finde great variety of this kinde , in the table of the register iudiciall . verbo capias . capias in withernamium de averijs , is a writ lying for catell in withernam . register orig . fo . . & . . see withernam . capias in withernamium de homine , is a writ that lyeth for a seruant in withernam . regist . or . fo . . & . . see withernam : capias conductos ad proficiscendum , is a writ that lieth for the taking vp of such , as hauing receiued prest mony to serue the king , slink away , and come not in at their time assigned . register . orig . fo . . captaine , aliàs capitayne ( capitaneus ) commeth of the french ( capitaine ) and signifieth with vs , him that leadeth , or hath charge of a companie of souldiers : and is either generall , as he that hath the gouernance of the whole host : or speciall , as he that leadeth one only band . the word ( capitanei ) in others nations signifieth more generally those , that are in latine called ( principes ) or ( proceres ) because , as hottoman saith in verbis feudalibus : tanquā caput reliquo corpori , sic hij reliquis civibus praesunt . he divideth them into two sorts : and to vse his words . alii sunt capitanei regni : quo verbo duces , comites , marchiones intelligūtur . li. . feudo . tit . . § . . & ti . . alii impropriè , qui vrbiū praefecti sunt , quibus plebs ab aliquo superiorum gubernanda committitur : qui & vallasores regit , & maiores appellantur . l. . feud . tit . . § . . & tit . . & tit . . so we haue captaines of castels heere in england , and other places , as of the isles of gearsey and gearnsey , of the isle of weight , &c. capite , is a tenure , which holdeth immediately of the king , as of his crown , be it by knights seruice or socage : broke . tit . tenures . . . dyer . fo . . nu . . & fo . . nu . . & not as of any honour , castell , or maner : and therefore it is otherwise called a tenure , that holdeth meerely of the king , because as the crowne is a corporation , and seigneury in grosse ( as the common lawyers terme it ) so the king that possesseth the crowe , is in accōpt of lawe , perpetually king , and neuer in his minoritie , nor neuer dieth : no more then ( populus . ) doth , whose authoritie he beareth . see fitzh . nat . br . fo . . f. note by the way , that a man may hold of the king , and not ( in capite ) that is , not immediately of the crowne in grosse , but by meanes of some honour , castel , or maner belonging to the crowne , wherof i hold my land . whereof kitchin saith well , that a man may hold of the king by knight seruice , and yet not in capite , because he holdeth happily of some honour by knights seruice , which is in the kings hands ( as by descent from his auncesters ) and not immediately of the king , as of his crowne . fo . . with whome agreeth fitzh . nat . br . f. . k. whose words are to this effect : so that it plainely appeareth , that lands which be held of the king , as of an honour , castell , or maner , are not held in capite of the king : because that a writ of right , in that case , shall be directed to the bayliffe of the honour , castell , or maner , &c. but when the lande be held of the king , as of his crowne , then they be not held of honour , castell , or maner , but meerely of the king , as king , and of the kings crowne , as of a seigneury of it selse in grosse , and the cheife aboue all other seigneuries , &c. and this tenure in capite is otherwise called tenure holding of the person of the king. dyer . fo . . n. . author of the new termes . verb. tenure in capite . broke . titulo . tenures . nu . . . and yet m. kitchin. fo . . saith , that a man may hould of the person of the king , and not in capite . his example is this : if the king purchas a maner that i. s. houldeth , the tenent shall hould as he held before , and shall not render liuery or primier seisin , nor hould in capite : and if the king graunt that maner to w. n. in fee ; excepting the seruices of i. s. then i. s. holdeth of the king , as of the person of the king , and yet houldeth not in caepite , but as he held before . so that by this booke , tenuere houlding of the person of the king , and tenure in capite , are two diuers tenures . to take away this difficulty , i thinke m. kitchin is in that place to be taken , as if he saide , not in capite by knights seruice , but by socage , folowing the vsuall speech : because most commonly where we talke of tenure in capite , we meane tenure by knights seruice . carno , cromptons iurisd . fol. . is an imunity carke , seemeth to be a quantititie of wolle , whereof thirtie make a sarpler . anno . . h. . ca. . see sarpler . carrack , aliàs carrick , seemeth to be a shippe of burden , so called of this italian ( carrico ) or ( carco ) a burden or charge , or of the spanish ( cargo ) you haue this word . anno . r. . ca. . & anno . iaco. ca. . carroway seedes , aliàs carruway seedes ( semen cari vel carei ) is a seed springing of the herbe so called , of whose operation you may read in gerards herball . li. . ca. . it is reckoned among the merchandize , that ought to be garbled . anno . i. iaco. ca. . carue of land ( carucata terrae ) commeth of the french ( charue . i. aratrum ) and with vs is a certaine quantitie of land , by the which the subiects haue some time bene taxed : wherevpon the tribute soe leuied , is called ( carvage caruagium . ) bracton . li. . ca. . nu . . it is all one with that ; which the same author . lib. . ca. . calleth ( carucatam terrae ) for litleton ca tenure in socage . saith , that ( haec soca socae , idem est quod caruca ) sc , one sok or one plow land . yet one place i finde in stowes annals , that maketh me doubt . pag. . where he hath these words : the same time king henry tooke carvage , that is to say , two merks of siluer of euery knights fee , toward the mariage of his sister izabell to the emperor : where caryage cannot be taken for a plow land , except there were some other farder division , whereby to raise of euery plowe land so much : and so consequently of euery knights fee : that is , of euery . acres , two merkes of siluer . rastall in his exposition of words saith , that caruage is to be quite , if the lord the king shall taxe all the land by carues : that is , a priuiledge , whereby a man is exempted frō carvage . skene de verb. signif . ver . carucata terrae , deriueth it from the french ( charon . i. a plough , and saith , that it containes as great a portion of land , as may be tilled and laboured in a yere and day with one plough : which also is called ( hilda ) or ( hida terrae ) a word vsed in the old britaine lawes . m. lamberd among his precedents , in the end of his eirenarcha , translateth ( carucatū terrae ) a plough land . caruage ( caruagium , ) see carue . cassia fistula , is a tree that beareth certaine blacke , round , and long cods , wherein is contained a pulpe , soft & pleasantly sweet , seruing for many vses in phisick . this tree with her vertues you may find described in gerards herball , lib. . cap. . the fruite is mentioned in the statute , anno . iacob . cap. . among drugges and spices , that be to be garbled . cassia lignea , is a sweet wood not vnlike to cynamom , and sometime vsed in steede of cynamom . whereof you may read in gerards herball , lib . ca. . this is called cassia lignum , in the statute anno . iacob . cap. and is comprised among merchandize that are to be garbled . castellain ( castellanus ) is a keeper or a captaine , sometime called a constable of a castell , bracton lib. . tractat . . cap. . & lib. . cap. . num . . īn like maner is it vsed , anno . ed. . cap. . in the bookes ( de feudis ) you shall find ( guastaldus ) to be almost of the same signification , but something more large : because it is also extended to those that haue the custodie of the kings mansion houses , called of the lumbards ( curtes ) in england ( courts , ) though they be not places of defence or strength . m. manwood , part . . of his forest lawes , pag. . saith , that there is an officer of the forest called castellanus . castelward ( castelgardum , vel wardum castri ) is an imposition laide vpon such of the kings subiects , as dwell within a certaine compasse of any castell , toward the maintenance of such , as doe watch and ward the castell . magna charta , cap. . & anno . h. . cap. . it is vsed sometime , for the very circuit it selfe , which is inhabited by such as are subiect to this seruice , as in stowes annals , pag. . casu consimili , is a writ of entrie , graunted where the tenent by courtesie , or tenent for terme of life , or for the life of another , doth alien in fee , or in tayle , or for tearme of anothers life . and it hath the name of this , for that the clerkes of the chauncerie did , by their common consent , frame it to the likenesse of the writ , called ( in casu prouiso ) according to their authoritie giuen them by the statute , westm . . cap. . which , as often as there chanceth any new case in chancerie , something like to a former case , and yet not especially fitted by any writ , licenceth them to lay their heads together , and to frame a new forme aunswerable to the new case , and as like some former case as they may . and this writ is graunted to him in the reuersion , against the party to whom the said tenent so alienateth to his preiudice , and in the life time of the said tenent . the forme and effect whereof reade more at large in fitz. nat . br . fol. . casu proviso , is a writ of entry , giuen by the statute of glocecester , cap. . in case where a tenent in dower alieneth in fee or for tearme of life , or in taile , and lyeth for him in reuersion against the alienee . whereof reade f 〈…〉 . cat . br . more at large , fol. . catals ( catalla ) aliâs chatels , cōmeth of the normans . for in the . chapter of the grand custumarie you shal find , that al moueable goods with them , are called chatels : the contrary whereof is ( fief ) ibid. which we do call fee. but as it is vsed in our common law , it comprehendeth all goods moueable and immoueable , but such as are in the nature of free hould , or parcell thereof , as may be gathered out of sawnf . praero . ca. . and anno . eliza. . ca. . how be it kitchin in the chapter catalla . fo . . saith , that ready mony is not accompted any goods or catels , nor haukes , nor houndes . the reason why hawks and hounds be not , he giueth , because they be ( ferae naturae ) why money is not , though he set not downe the cause : yet it may be gathered to be , for that money of it selfe , is not of worth , but as by cōsent of men , for their easier traficke , or permutation of things necessary for common life , it is reckoned a thing rather consisting in imagination , then in deede . catals be either personall or reall . personall may be so called in two respects : one , because they belong immediatly to the person of a man , as a bowe , horse , &c. the other , for that being any way withheld iniuriously from vs , we haue no meanes to recouer them , but by personall action . chatels reall be such , as either appertain not immediatly to the person , but to some other thing , by way of dependencie : as a boxe with charters of land , the body of a ward , apples vpon a tree , or a tree it selfe growing on the ground . cromptons iustice of peace , fo . . b , or els such as are necessary issuing out of some immoveable thing to a person : as a lease or rent for tearme of yeares . also to hould at will , is a chatell reall . new tearmes . verbo chatell . the ciuilians comprehend these things , as also lands of what kin de or hould so euer , vnder bona ; bona autē diuiduntur in mobilia & immobilia : mobilia verò in ea quae se movent vel ab aliis moventur . v. legem . . & . l. 〈◊〉 . de . verb. significa . & interpretes ibidem . bract. also ca. . li. . nu . . & . seemeth to be of the same iudgement . catallis captis nomine districtionis , is a writ which lyeth within a borowe , or within a house , for rent going out of the same , and warranteth a man to take the doores , windowes , or gates , by way of distresse , for the rent . old nat . br . fo . . catallis reddendis , is a writ , which lyeth where goods being deliuered to any man to keepe vntill a certaine day , and be not vpon demande deliuered at the day . and it may be otherwise called a writ of detinew . see more of it in the register orig . fo . . and in the ould nat . br . fo . . this is answerable to actio depositi , in the ciuile lawe . catchepolle , though it now be vsed as a word of contempt , yet in auncient times , it seemeth to haue bene vsed without reproch , for such as we now call sergeants of the mace , or any other that vse to arrest men vpon any cause . anno . . ed. . stat . . ca. . cathedrall . see church . casu matrimonii praelocuti , is a writ which lyeth in case where a woman giueth lands to a man in fee simple , to the intent he shall mary her , and refuseth so to doe in reasonable time , being required thereunto by the woman . the forme , and farder vse hereof , learne in the register orig . fol. . and in fitzh . nat . br . fo . . causam nobis significes , is a writ which lyeth to a mayer of a towne or city , &c. that formerly by the kings writ being commaunded to giue seisin vnto the kings grantee of any land or tenements , doth delay so to do , willing him to shew cause , why he so delayeth the performance of his charge . coke . li. . casu communalty des sadlers . fo . b. cautione admittenda , is a writ that lyeth against the bishop , houlding an excommunicate person in prison for his contempt , notwithstanding that he offereth sufficient caution or assurance to obey the commandments and orders of holy church from thence forth : the forme and farder effect whereof , take out of the regist . orig . pa. . and fitzh . nat . br . fol. . century ( centuria ) see hundred . cepi corpus , is a returne made by the shyreue , that vpō an ( exigēd ) he hath taken the bodie of the partie . fitzh nat . br . fo . . certiorari , is a writ issuing out the chauncerie , to an inferiour courte , to call vp the records of a cause therein depending , that conscionable iustice therein may be ministred , vpon complaint made by bill , that the partie which seeketh the said writ , hath receiued hard dealing in the said court . termes of the lawe . see the diuers formes and vses of this , in fitzh . nat . br . fo . . as also the register , both originall and iudiciall in the tables . verbo . certiorari . cromptō in his iustice of peace . fo . saith , that this writ is either returnable in the kings bench , and then hath these wordes ( nobis mittatis ) : or in the chauncerie , and then hath ( in cancellaria nostra ) or in the common bench , and then hath ( iusticiariis nostris de banco . ) the word ( certiorare ) is vsed diuers times in the digest of the ciuile lawe : but our later kritiques think it soe barbarouse , that they suspect it rather to be foisted in by tribonian , thē to be originally vsed by those men , of whose workes the saide digest is compiled . prataeus in suo lexico . certificat ( certificatoriū ) is vsed for a wirting made in any courte , to giue notice to another courte of any thing done therein . as for example , a certificate of the cause of attainte , is a transcript made briefely and in few words , by the clerke of the crowne , clerke of the peace , or clerke of assise , to the courte of the kings benche , conteying the tenure and effect of everie endictment , outlawrie , or conviction , and clerke attained , made or pronounced in any other court . an . . h. . c. . of this see more in certificat d'evesque . broke . f. . certification of assise of novel dissessin , &c. ( certificatio assisae novae disseisinae . &c. ) is a writ graunted for there examining or reuew of a mater passed by assise before any iustices , and is called ( certificatione novae disseisine ) old. nat . br . fo . . of this see also the register . original . fo . . and the newe booke of entrise , verbo . certificat of assise . this word hath vse , where a man appearing by his bayliffe to an assise brought by another , hath lost the day : and hauing something more to pleade for himselfe , as a deede of release , &c. which the bayliffe did not , or might not pleade for him , desireth a farder examination of the cause either before the same iustices , or others : and obteineth leters patents vnto them to that effect . ( the forme of these leters patents , you may see in fitzh . nat . br . fo . . ) and that done , bringeth a writ to the shyreeue , to call both the party for whome the assise passed , and the iurie that was empaneled vpon the same , before the said iustices at a certaine day and place . and it is called a certificate , because in it there is mention made to the shyreeue , that vpon the parties complainte of the defectiue examination , or doubts yet remaining vpon the assise passed , the king hath directed his leters patēts to the iustices , for the beter certifiing of themselues , whether all points of the said assise were duly examined , yea or not . see farder old . nat . br . and fitzh . vbi supra . of this also you may reade bracton . li. . ca. . nu . . in fine . & . . where he discusseth the reason of this pointe very learnedly and lastly horn in his myrrour of iustices . li. . ea . finali . § . en eyde des memoyres , &c. certificando de recognitions stapulae , is a writte directed to the mayor of the staple , &c. cōmaunding him to certifie the chaunceler of a statute of the staple , taken before him betweene such and such , in case where the partie himselfe detaineth it , and refuseth to bring it in . regist . orig . fo . . b. in like maner may be said of ( certificando de statuto mercatorio ) eodem . fo . . and ( de certificando in cancellarium de inquisitione , de idemptitate nominis ) fo . . and ( certificando quando recognitio , ) &c. and ( certificando quid actum est de breui super statutum mercatorium . ) fo . & certificando si loquela warantiae . fo . . cessor , is he that ceseth or neglecteth so long to performe a dutie belonging vnto him , as that by his cesse or cessing he incurreth the daunger of lawe , and hath , or may haue the writ ( cessavit ) brought against him . old. nat . br . fo . . and note , that where it is saide in diuers places ( the tenent cesseth ) without any more words , such phrase is so to be vnderstood , as if it were said : the tenent ceseth to doo that which he ought , or is bound to doe by his land ortenement . cessavit , is a writ that , lyeth in diuers cases , as appeareth by fitzh . nat . br . fo . . vpon this generall grounde , that he against whome it is brought , hath for . yeares foreslowne to performe such seruice , or to pay such rent , as he is tied vnto by his tenure , and hath not vpon his land or his tenement , sufficient goods or catells to be distreined . consult more at large with fitz. vpon this vbi supra . with fleta . li. . ca. . § . visa sunt . and with the termes of lawe . see cessauit de cantaria . register orig . fo . . cessavit de feodi firma . eodem fo . . cessavit per biennium . eodem . folio etiam eodem . see the newe booke of entrise . verbo cessavit . cestui qui vie , is in true french ( cestui a vie de qui ) . i. he for whose life any land or renement is graunted . perkins graunts . . cestui qui vse ( ille cuius vsui vel ad cuius vsum ) is broken french , and thus may be bettered : ( cestui al vse de qui ) it is an ordinarie speech among our common lawyers , signifying him , to whose vse any other man is infeoffed in any lands or tenements . see the newe booke of entrise . verbo . vses . and in replevin . fo . . colum . . & verbo trespas . fo . . & fo . . a. b. colum . . n● . . chafe waxe , is an officer in chauncery , that fitteth the waxe for the fealing of the writs , and such other instruments as are there made to be sent out . this officer is borowed from the french. for there ( calefactores cerae sunt , qui regiis literis in cancellaria ceram imprimunt . corasius . chase ( chacea ) commeth of the french ( chasser . . sectari belluas , apros , cervos ) it signifieth two things in the commō lawe . first , as much as ( actus ) in the civil lawe , that is a dryving of catell to or from any place : as to chase a distresse to a fortlet , old nat . br . fo . . secondly , it is vsed for a receite for deere and wilde beasts , of a middle nature betweene a forest , and a parke : being commonly lesse then a forest , and not endued with so many liberties , as the courtes of attachment , swaine mote , and iustice seate : and yet of a larger compas , and stored with greater diuersity both of keepers and wilde beasts or game , then a park . and crompton in his booke of iurisdictions . fo . . saith , that a forest cannot be in the hands of a subiect , but it forthwith looseth the name , and becommeth a chase . and yet . fo . . he saith , that a subiect may be lord and owner of a forest . which though it seeme a contrariety , yet be both his sayings , in some sort , true . for the king may giue or alienate a forest to a subiect : yet so , as when it is once in the subiect , it leeseth the true property of a forest : because that the courts , called the iustice seate , the swain mote , and attachment , foorthwith doe vanish : none being able to make a lord chiefe iustice in eyre of the forest , but the king : as m. manwood well sheweth parte . of his forest lawes , cap. . & . and yet it may be granted in so large a maner , that there may be attachement and swainemote , and a court equiualent to a iustice seat , as appeareth by him in the same chapter , num . . so that a chase differeth from a forest in this , because it may be in the hands of a subiect , which a forest in his proper & true nature cannot : and from a parke , in that that it is not inclosed , and hath not onely a larger compasse , and more store of game , but of keepers also and ouerseers . see forest . chalenge ( calumnia ) commeth of the french ( chalanger , i. sibiasserere ) and is vsed in the commō lawe for an exception taken either against persons or things : persons , as in assise to the iurors , or any one or more of them : or in a case of felonie by the prisoner at the barre . smith de rep . anglor . lib. . cap. . britton . ca. . bracton lib. . tract . . cap. . against things , as a declaration , old nat . br . fol. . chalenge made to the iurours , is either made to the array , or to the polles . chalenge to the array is , when the whole number is excepted against , as partially empaneled : chalenge to or by the polle , when some one , or more are excepted against , as not indifferent . termes of the law . chalenge to the iurours , is also divided into chalenge principall , and chalenge per cause . i. vppon cause or reason . chalenge principall ( otherwise by stawnf . pl. cor . fol. . & . called ( peremptorie ) is that , which the lawe alloweth without cause alledged or farder examination . lamberd . eirenar . lib. . cap. . as a prisoner at the barre , arraigned vpon felonie , may peremptorily chalenge to the number of . one after another , of the iurie empaneled vpon him , alledging no cause , but his owne dislike : and they shall be still put off , and new taken in their places . but in case of high treason no chalenge peremptorie is allowed , an . . h. . cap. . fortescue saith , that a prisoner in this case may chalenge , . men c. . but that law was abridged by anno . h. . cap. . i cannot here omit to note some difference , that ( in mine opinion ) i obserue betweene chalenge principall , and chalenge peremptorie , finding peremptorie to be vsed onely in maters criminall , and barely without cause alledged more then the prisoners owne phantasie , stawnf . pl. cor . fol. . but principall in ciuill actions for the most part , and with naming of some such cause of exception , as being found true , the lawe alloweth without farder scanning . for example : if either partie say , that one of the iurors is the sonne , brother , cousin , or tenent to the other , or espoused his daughter , this is exception good and strong enough ( if it be true ) without farder examination of the parties credit . and how farre this chalenge vpon kinred reacheth , you haue a notable example , in plowden , casu vernon . against maners . fol. . also in the plee of the death of a man , and in euery action reall , as also euery action personall , where the debt or dammages amount to . merks , it is a good chalenge to any man , that he cannot dispend . shillings by the yeare of free-hold , anno . h. . cap. . and termes of the lawe , verbo chalenge . the ground of this chalenge you may see farder in fleta lib. . cap. . chalenge vpon reason or cause is , when the partie doth alledge some such exception against one or more of the iurors , as is not forthwith sufficient vpon acknowledgement of the truth thereof , but rather arbitrable and considerable by the rest of the iurors : as , for example : if the sonne of the iuror haue maried or espoused the daughter of the aduerse partie . termes of lawe , vbi supra . this chalenge per cause , seemeth to be tearmed by kitchin , chalenge for fauour , fol. . or rather chalenge for fauour is said there to be one species of chalenge per cause : where you may read what chalenges be commonly accounted principall , and what not . see the new booke of entries , verbo , chalenge . and the old nat . br . fol. . & . that this word ( chalenge ) is long sithence latined by the word ( calumnia ) appeareth by bracton . lib. . tract . . cap. . & li. . tract . . cap. . & lib. . cap. . but i doubt , priscian will neuer forgiue him that first strooke this blowe at him . of chalenge you may farder read fleta . lib. . cap. . § . ad quem diem , & seqq . chamberdekins , are irish beggers , anno . h. . cap. . chamberer , is vsed for a chamber maide , anno . h. . cap. . chamberlaine ( camerarius vel camberlingus ) commeth of the french ( chambellan . i. cubicularius , vel praefectus cubiculi . ) it is diversly vsed in our chronicles , lawes , and statutes : as lord great chamberlaine of england , lord chamberlain of the kings house , the kings chamberlaine , anno . ed. . cap. . anno . r. . cap. . to whose office it especially appertaineth to looke to the kings chambers and wardrobe , and to gouerne the vnder ministers belonging vnto the same . fleta lib. . cap. . & . chamberlaine of any of the kings courts , anno . ed. . cap. . chamberlaine of the exchequer , anno . h. . stat . . & anno . . ed. . cap. . & anno . eiusdem . cap. . & anno . h. . cap. . chamberlaine of north wales , stow. pag. . chamberlaine of chester . cromptons iurisd . fol. . this officer is commonly the receiuer of all rents and reuenues belonging to that person or citie , whereunto he is chamberlaine . v. fletam li. . cap. . § . si autem . the latine word seemeth to expresse the function of this officer . for ( camerarius dicitur à camera . i. testudine sive fornice . ) quia custodit pecunias quae in cameris praecipuè reservantur . onyphrius de interpret . vooum ecclesiasticarum . it seemeth to be borowed from the feudists , who define the word ( camera ) thus : camera est locus in quem the saurus recolligitur , vel conclave in quo pecunia reservatur . zasius de feudis . part . . num . . and peregrinus , de iure fisci . lib. . tit . . saith , that camerarius vel camberlingus , ( quē quaestorem antiqui appellârunt , ) in rebus fisci primum locum tenet , quia thesauraruis & custos est publicae pecuniae . sane officium hoc primipilatus fuisse nonnulli senserunt . there be two officers of this name in the kings exchequer , who were wont to keepe a controlment of the pels of receipt and exitus , & kept certaine keyes of the treasure cofers , which is not now in vse . they keepe the keyes of the treasurie , where the leagues of the kings predecessors , and diuers auncient bookes doe remaine . there is mention of this officer , in the statute anno . & . h. . cap. . there be also vnder-chamberlaines of the exchequer , which see in vnder-chamberlaine . champartie , ( cambipartita ) aliàs champertie , seemeth to come from the french ( champart . . vectigal ) and signifieth , in our common lawe , a maintenance of any man in his suit depending , vpon condition to haue part of the thing ( be it lands or goods ) when it is recouered . fitzh . nat . br . fo . . and champertours be they , that moue plees or suites , or cause to be moued , either by their owne procurement , or by other ; and persyew at their proper costs , for to haue part of the land in variance , or part of the gaines . anno . . ed. . stat . . in fine . whereunto adde the third statut made the same yeare . this seemeth to haue bene an auncient fault in our realme . for notwithstanding these former statutes , and a forme of writ framed vnto them , yet anno . . ed. . ca. . it was againe inacted , that whereas the former statute prouided redresse for this in the kings bench onely ( which in those dayes folowed the court ) from thence forth it should be lawfull for iustices of the common plees likewise , and iustices of assises in their circuits , to inquire , heare , and determine this and such like cases , as well at the suite of the king , as of the party . how farre this writ extendeth , and the diuers formes therof , applied to seuerall cases , see fitzh . nat . br . fo . . and the register orig . fo . . and the new booke of entrise . verbo . champertie . euery champertie employeth maintenance . cromptons iurisd fo . . see also his iustice of peace . fo . . b. &c. these with the romans were called redemptores litium , qui sc . quotidianas lites mercantur , aut quipartem litis paciscuntur . l. si remunerandi . § . maurus . Π. mandati . l. si contra . & . l. per diuersas . co. eodem . . champion , ( campio ) is thus defined by hotoman , in verbis feudalibus . campio est certator pro alio datus in duello : a campo dictus , qui circus erat decertantibus definitus . in our common lawe , it is taken no lesse for him that trieth the combat in his owne case , then for him that fighteth in the place or quarell of another . bracton li. . tracta . . ca. . nu . . who also seemeth to vse this word for such , as hould by sergeanty , or some service , of another , as : cāpiones faciunt homagium domino suo . li. . ca. . of this reade more in battell and combat . . chanceler , ( cancellarius ) commeth of the french ( chaneelier ) vincentius lupanus de magistratibus francorum saith , that ( cancellarius ) is no latine word : how be it he citeth diuers latine writers that doe vse it . with him agreeth that excellent man petrus pithaeus , libro . . aduersariorum . ca. . and whereas lupanus would deriue it from the verb ( cancello ) pithaeus confesseth , he hath good colour for his opinion , though he thinke it not sound ; and therefore rather deduceth it ( a cancellis ) . ( cancellare ) is ( literas vel scriptum linea per medium ducta damnare ) and seemeth of it selfe likewise to be deriued ( a cancellis ) which signifie all one with ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) in greeke , which we in our tong call a letis : that is , a thing made of woode or iron barrs laide crosse waies one ouer another , so that a man may see through them in and out . and it is to be thought , that iudgement seates in ould time , were compassed in with those barres , being founde most necessary to defend the iudges and other officers from the presse of the multitude , and and yet neuer the more to hinder any mans view , that had a desire or cause to obserue what was done . cancellarius at the first by the opinion of lupanus , signified the registers or actuaries in court , ( grapharios sc : qui conscribendis & excipiendis iudicum actis dant operam ) pithaeus saith , they were such as we now call ( secretarios ) but this name in our daies is greatly advanced , and not onely in other kingdomes , but in ours also , is giuen to him , that is the cheife man for mater of iustice ( in priuate causes especially ) next vnto the prince . for whereas all other iustices in our common wealth , are tied to the lawe , and may not swerue from it in iudgement : the chanceler hath in this the kings absolute power , to moderate and temper the written lawe , and subiecteth himselfe onely to the lawe of nature and conscience , ordering all things iuxta aequum & bonum . and therefore stawnford in his prerogatiue . ca. . fo . . saith , that the chanceler hath two powers : one absolute , the other ordinary : meaning that though by his ordinary power in some cases , he must obserue the forme of proceeding , as other ordinarie iudges : yet that in his absolute power he is not limited by the written law , but by conscience and equitie , according to the circumstances of the mater in question . but how long he hath had this power , some would doubt . for polidorus virgilius , lib. . historiae anglica . hath these words of william the conqueror : instituit item scribarum collegium , qui diplomata scriberent , & eius collegii magistrum vocabat cancellarium , qui paulatim supremus factus est magistratus , qualis hodie habetur . and see fleta , lib. . cap. . this high officer , seemeth to be derived from fraunce vnto vs , as many other officers and vsages be . for of this thus writeth boërius in his tractate de authoritat . magni concilii . num . . consistorio franciae post . principem dominus franciae cancellarius , cui velut excelsum iudicii tribunal hoc in regno ( sub principe tamen nostro ) moderanti , sigillumque authenticum , quo sine publicis & patētibus regiis literis nulla fides adhibetur , liberam administrationem habenti , omnes & singuli regii iusticiarii , quocunque nomine nuncupentur , ac quavis authoritate fungantur , e● inferiores sunt . et meritò : succedit enim in quaestoris locum , &c. he that beareth this magistracie , is called the chanceler of england . anno . r. . cap. . and by the statute anno . eliz. cap. . the lord chanceler and keeper haue all one power . note farder that diuers inferior officers , are called chancelers , as chanceler of the exchequer . an . . h. . cap. . whose office hath bene thought by many , to haue bene created for the qualifying of extremities in the exchequer . he sitteth in the court , and in the exchequer chamber , and with the rest of the court ordereth things to the kings best benefit : he is alwaies in cōmission with the lord treasurer for the letting of the lands that came to the crowne by the dissolution of abbeyes : and hath by priuie seale from the king , power with others to compound for forfeitures of bonds , and forfeitures vpon penall statutes . he hath also much to doe in the reuenue come by the dissolution and first fruites , as appeareth by the acts of vniting them to the crowne . chanceler of the duchie of lācaster , anno . ed . cap. . & an . . eiusdem . cap. . whose office is principall in that court to iudge and determine all controuersies betweene the king and his tenents of the duchie land , and otherwise to direct all the kings affaires belonging to that court . chanceler of the order . . of the garter , stowes annals pag. . chanceler of the vniversity , anno . h. . cap. . & anno . h. . cap. . chaunceler of the court of augmentations , anno . h. . cap. . & anno . eiusdem . cap. . & anno . eiusd . cap. . chaunceler of the first fruites , anno . h. . cap. . chaunceler of courts , anno . h. . cap. . chaunceler of the diocesse , anno . h. . cap. . chancerie ( cancellaria ) is the court of equitie and conscience , moderating the rigour of other courtes , that are more streightly tyed to the leter of the lawe , whereof the lord chancelor of england is the chiefe iudge . cromptons iurisd . fol. . or else the lord keeper of the great seale , sithence the statute . eliz. cap. . it taketh the name from the chaunceler , as m. camden noteth in his britannia , pag. . in meo . the officers belonging to this court , are ( as is abouesaid ) the lord chaunceler or keeper of the broade seale , twelue masters of the chancerie , whereof the master of the rolles is one and the chiefe , the sixe clerkes , the examiners , a sergeant at armes , the marshall , and cryer of the court , the clerks of the courts , otherwise called courseters , the clerkes of the petie bagge , the clerke of the crowne , the clerk of the hanaper , the protonotary or register , the controller of the hanaper , the clerk of appeales , the sealer , the ch 〈…〉 axe , the clerke of the facult 〈…〉 the clerk of the patents , clerk of the starre chamber , clerk of presentations , clerk of dismissions , clerk of licenses to alienate , clerkes of the enrolments , clerk of the protections , clerk of the court of wards , clerk of the sub penaes , which see described in their places . chapell , ( capella ) commeth of the french ( chapelle . i. aedicula ) and is of . sorts , either adioining to a church , as a parcel of the same , which men of worth doe build , vt ibidem familiaria sepulchra sibi constituant , to the vse of the romans . l. . Π. de religio . or els separate from the mother church , where the parish is wide , and is commonly called a chappell of case : because it is builded for the case of one or more parishioners that dwell ouer farre from the church , and is serued by some inferiour curate prouided at the charge of the rector , or of them that haue benifite by it , as the composition or custome is . whence the word is deriued the canonists differ in opinion . rebuffus de pacif . posses . nu . . saying , that some take it ( à capiendo laicot ) others ( à capra ) because it representeth those cotages , which men were wont to couer ouer with goates skins . petrus gregorius in suo syntagma . te . li. . ca. . hath these words of this thing : capellanus à capellania & capella , cui praeficitur , nominatur : item ab officio seu beneficio & capellania . capella aliquibus dicta , quasi capiens 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu populos , vel capiens laudem : vel secundùm praepositum , a cappa diui martint , aut a capriuis pellibus , quibus olim altaria tegebantur secundùm archidiaconum . arbitrarer & a simplici tecto , quo oratorium campestre operitur , lateribus vndiquaque patentibus & patulis . tectum enim gallis simpliciter dicitur ( chapelle ) a capite . vnde & formata aliqua nomina ( chapean , cape , &c ) aut capella locus qui minoris spatii sit quam ecclesia , quòd tot homines non capiat , vt ecclesia . ita altare capella est . ca. quaesitum , & ca. penult . i. quaest . . iohan. andraeas . in ca. i. de succes . ab intesta . & praebenda cum onere quotidie celebrandi sacram liturgiam . ca. significatum . . de praebend & oratorium . ca. authoritate : de privilegiis . in . quòd in co loco orationes non aliae res profanae peragi debeant . ca. pen. & fina . . distinct . the same author in his booke de beneficiis . ca. . nu . . hath these words : dicti porro primitùs capellani , a cappa sancti martini , quam reges francorum ob adiutorium in praelus solebant secum habere : quam ferentes & custodientes cum caeteris sanctorum reliquiis clerici , capellani caeperunt vocari . vr omnia refert valafridus strabo . abbas augensis . ca. fina . de incrementis rerum ecclesiastica . there is of these chapels one kinde called a free chapell , which seemeth to be such as hath maintenance perpetuall toward the vphoulding thereof , and wages of the curate , by some land charitablely bestowed on it , without the charge of the rector or parishe . anno . . h. . cap. . anno . . ed. . ca. . chapellaine , ( capellanus ) is he that performeth diuine seruice in a chappell . and therefore in our common law , it is vsed most ordinarily for him , that is depending vpon the king , or other man of worth , for the instruction of him and his family , the executing of praiers and preaching in his priuate house , where commonly they haue a chappell for that purpose . as anno . . h. . ca. . where it is set downe what persons may priuiledge one or moe chaplaines , to discontinew from their benefices , for their particular seruice . chapiters , ( capitula ) commeth of the french ( chapitre . . caput libri ) it signifieth in our common lawe , a summary or content of such matters , as are to be inquired of or presented before iustices in eyre , iustices of assise , or of peace in their sessions . soe is it vsed . , anno . . ed. . ca. . in these words : and that no clerke of any iustice , escheatour , or commissioner in eyre , shall take any thing for deliuering chapiters , but onely clerkes of iustices in their circuits : and againe anno . . eiusdem . ca. . in these words : and when the time commeth , the shyreeue shall certifie the chapiters before the iustices in eire , how many writs he hath and what &c. britton likewise vseth the same worde in this signification . ca. . chapiters or ( capitula ) be now called articles most ordinarily , and are deliuered as well by the mouth of the iustice in his charge , as by the clerks in wrighting to the enquest ; whereas in auncient times ( as appeareth by bracton and britton ) they were after an exhortation giuen by the iustices for the good obseruation of the lawes and kings peace , first red distinctly and opēly in the whole court , and then deliuered in writing to the grand enquest . and the same order doth m. lamberd wish to be kept in these daies also . eirenar . li. . ca. . pa. . horn in his mirrour of iustices calleth them articles , and expresseth what they were wont to containe . li. . ca. des . articles in eire . an exāple of these chapters or articles , you haue in the booke of assises , fo . . nu . . as also in roger houeden , parte poster . suorum annal . in richardo primo . fo . . chapter . ( capitulum ) signifieth in our common lawe ( as in the canon lawe , whence it is borowed ) congregationem clericorum in ecclesiae cathedrali , conuentuali , regulari , vel collegiata : and in another signification , locum in quo fiunt communes tractatus collegiatorum . it hath other significations , though not greatly worth the repeating in this place , which you may read in linwods prouineials . glos . in ca. quia in continētiae . de constitutionibus . verb. capitulis . why this collegiat companie should be called ( capitulum ) of the canonists , a man may make a question : and for answer , it may be said , that it is metaphorically so termed the word originally signifiing a litle head . for this companie or corporation is a kinde of head , not onely to rule and gouerne the dioces in the vacatiō of the bishoprick , but also in many things to advise the bishop , when the see is full . see panormitan . in ca. capitulum . extra de rescriptis . charta perdonationis se defendendo , is the forme of a pardon for slaying another in a mans owne defence . register . original . fo . . chartae perdonationis vtlagariae , is the forme of a pardon for a man thatis outlawed . reg. orig . fo . . ● . charter ( charta ) commeth of the french ( chartres . i. instrumenta ) it is taken in our lawe , for written evidence of things done betweene man and man , whereof bracton lib. . 〈◊〉 ca. . num . . saith thus : fiunt aliquando donationes in scriptis , sicut in chartis , ad perpetuam rei memoriam , propter brevem hominum vitam , &c. & a litle after : nu . . et sciendum , quòd chartarū alia regia , alia privatorum ; & regiarum alia privata , alia communis , & alia vniuersalis . item priuatorum , alia de puro feoffamento & simplici , alia de feoffamento conditionali sive conventionali : & secundùm omnia genera feoffamentorum fieri potest . item privatorum alia de recognitione puravel conditionali . item alia de quiete-clamantia : item alia de confirmatione , &c. and so thorough the chapter . britton likewise in his . chapter , diuideth charters into the charters of the king , and charters of priuate persons . charters of the king are those , whereby the king passeth any graunt to any person or more , or to any bodie politique : as a charter of exemption that a man shall not be empaneled vpon any iurie . kitchin . fo . . & fo . . charter of pardon , whereby a man is forgiuen a felonie , or other offence committed against the kings crowne and dignitie . broke . tit . charter of pardon . charter of the forest , wherein the lawes of the forest are comprised . anno . . h. . cromptons iurisd . fo . 〈◊〉 . pupilla oculi . parte . . ca. . manwood . parte . . of his forest lawes . fo . i. where he setteth downe the charters of of canutus . and fo . . where he hath set downe that which was made . anno . h. . with the charter of the forest which we vse , m. skene saith , that the lawes of the forest in scotland doe agree . de verbo . signif . verbo . venison . charter of land . broke . codem titulo . that which we call a charter , the lombards in libris feudalibus , call praeceptū ( praeceptionem ) hotama . verbo praeceptū . in verbis feudalibus . of these charters you haue also a long discourse in fleta . li. . ca. . who expoundeth euery substantiall part of a deede of gift particularly in order . charter land , ( terra per chartam ) is such sa a man holdeth by charter , that is , by euidence in writing ; otherwise called free-hold . anno . h. . ca. . and kitchin. fo . . & these in the saxons time , were wont to be called ( bockland ) idem . fo . . and lamberd in his explication of saxon words . verbo terra ex scripto which was held , as he there saith , with more commodious & easier conditions , then ( folkland ) was : that is land held without writing . and the reason he giueth , because that was haereditataria , libera , atque immunis : whereas fundus sine scripto censum pensitabat annuum , atque officiorum quadam servitute est obligatus . priorēviriplerunque nobiles atque ingenui , posteriorem rustici ferè & pagani possidebant . illam nos vulgò freehold & per chartam , hanc ad voluntatem domini appellamus . thus farre m. lamberd . charter partie ( charta partita ) is nothing but that which we call a paire of indentures , conteining the covenants and agreements made betweene merchants , or sea faring men touching their marine affaires . anno . h. . cap. . chartis reddendis , is a writ , which lyeth against him that hath charters of feofment deliuered him to be kept , and refuseth to deliuer them . old . nat . br . fo . . register orig . fo . . chase . see chace . chatell . see catell . chawnce medley ( infortunium ) commeth of . french words ( chance . i. lapsus ) and ( mesler . i. miscere ) it signifieth in our common lawe , the casuall slaughter of a man , not altogether without the fault of the slayer . stawnf . pl. cor . li. . ca. . calleth it homicide by misaduenture , west . calleth it homicide mixt . parte . . symbol . titulo indictments . sect . . and there defineth it thus : homicide mixt is , when the killers ignorance or negligence is ioyned with the chaunce : as if a man loppe trees by an high way side , by which many vsually trauell , and cast doune a bowe , not giuing warning to take heede thereof , by which bowe one passing by is slaine : in which case he offendeth , because he gaue noe warning , that the party might haue taken heede to himselfe . see skene de verbo : signifi . verbo melletum . chaungeour , is an officer belonging to the kings mint , whose function seemeth especially to consist , in exchanging coine for gold or siluer in the masse , brought in by merchants or others . anno . h. . ca. . chawntery , ( cantaria ) is a church or chapell endewed with lands or other yearely revenewe , for the mantenance of one or moe priests , daily to sing masse for the soules of the donours , and such others , as they doe appointe . anno . h. . ca. . anno . fd. . ca. . check rolle , seemeth to be a rolle or booke , that conteineth the names of such , as are attendants and in pay to great personages , as their houshold servants . it is otherwise called the chequer rolle . anno . h. . ca. . anno . h. . ca. . & seemeeth to haue one etymologie with eschequer . which see . chevage , ( cheuagium ) commeth of the french ( chef . i. caput ) it signifieth with vs , a summe of money paid by villeins to their lords , in acknowledgment of their slauerie . whereof bracton li. . ca. . saith thus : chevagium dicitur recognitio in signum subiectionis & dominij de capite suo . it seemeth also to be vsed , for a summe of a mony , yearely giuen by a man to another of might & power , for his avowement , maintenance , and protection , as to their head or leader . m. lamberds li. . ca. . etrenarch . writeth it ( chivage ) or rather ( chiefage ) chevisance , commeth of the french ( chevir . i. venir a chef de de quelque chose ) to come to the head or end of a busines , to perfect a mater . this word is vsed for bargayning . anno . h. . ca. . & anno . . eliza. ca. . & . an . . r. . cap. . & anno . h. . cap. . chief . see capite . chiefe pledge ( plegius , vel vas capitalis ) an . . h. . ca. . for the vnderstanding of this word , see borowhead . childwit , commeth of the saxon word ( child ) , and ( wit ) which some say , in that tongue , is a terminatiō of certain words without signification , as ( dom ) in ( christendom ) or ( hood ) in ( childehood ) with vs. but for the signification of ( wit ) see bloodwit ) childwit signifieth a power to to take a fine of your bondwoman begotten with child without your consent . rastall . exposit . of words . chimin , ( chiminus ) commeth from the french ( chemin . i. aditus , via ) and signifieth in our common lawe , a way . it is diuided into two sorts : the kings high way , and a priuate way . kitchin. fo . . the kings highe way ( chiminus regius ) is that , by which the kings subiects , and all others vnder his protection , haue free libertie to passe , though the propertie of the soyle of each side , where the way lieth , may perhaps belong to some priuate man. a way priuate is that , by which one man or more haue libertie to passe , either by prescription or by charter , through another mans ground . and this is diuided into chymin in grosse , and chymin appendant . kitchin. fo . . chymin in grosse is that way , which a man holdeth principally and solely in it selfe : chimin apendant is that , which a man hath adioyned to some other thing as appertinent thereūto . for example , if a man hire a close or pasture , and couenāt for ingresse and egresse to and from the said close , through some other ground , by the which otherwise he cannot passe . or chimin in grosse may be that , which the civilians call personall : as when one covenanteth for a way through another mans ground , for himselfe and his heires : chimin appendant , on the otherside , may be that which they call reall : as when a man purchaseth a way through another mansground , for such as doe or shall dwell in this or that house for euer , or be owners of such a maner . chiminage , ( chiminagium ) signifieth a tolle for wayfarage thorough the forest . cromptons . iurisd . fo . . and manwood . farte . . of his forest lawes . pa. . see chimin . the feudists call it , pedagium . see chimin . chirographer of fynes ( chirographus finium & concordiarum ) commeth of the greeke ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) which signifieth a wrighting of a mans owne hand , whereby he acknowledgeth a dept to another . it signifieth in our common lawe , him in the common bench office , that ingrosseth fines in that court acknowledged , into a perpetuall record , after they be acknowledged , and fully passed by those officers , by whome they are formerly examined ; and that writeth and deliuereth the indentures of them vnto the party anno . . h. . ca. . and. west symbol : parte . . titulo . fines . sect . . & . fitzh . nat . br . fo . . a. this officer also maketh two indentures , one for the buier , another for the seller ; and maketh one other indented peece , containing also the effect of the fine , which he deliuereth ouer to the custos breuium , that is called the foote of the fine . the chirographer also , or his debuty , doth proclaime all the fines in the court euery tearme , according to the statute ; and then repayring to the office of the custos breuium , there indorseth the proclamations vpō the backside of the foot thereof : and alwaie keepeth the writ of couenant , as also the note of the fine . chivage . see chevage . chivalrie , ( servitium militare ) commeth of the french ( chevalier . i. eques ) and signifieth in our common lawe , a tenure of land by knights seruice . for the better vnderstanding whereof , it is to be knowne , that there is noe land , but is holden mediatly or immediatly of the crowne , by some seruice or other : and therfore are all our free-houlds that are to vs and our heires , called ( feuda ) feese , as proceeding frō the benefit of the king , for some small yearely rent , and the performance of such seruices , as originally were laid vpon the land at the donation thereof . for as the king gaue to the great nobles his immediat tenents , large possessions for euer , to hold of him for this or that rent and seruice : so they againe in time parcelled out to such as they liked , their lands so receiued of the kings bountie , for rents and seruices , as they thought good . and these seruices are all by litleton diuided into two sorts chivalry , and socage . the one is martiall and military , the other clownish and rusticall . chivalrie therefore is a tenure or seruice , whereby the tenent is bound to performe some noble or military office vnto his lord , and is of two sorts : either regall , that is , such as may hold onely of the king : or such as may also hold of a common person , as well as of the king . that which may hold onely of the king , is properly called servitium , or sergeantia : and is againe diuided into grand or petit , i. great or small . great , commonly called grand sergeantie , is that where one holdeth lands of the king by seruice , which hee ought to doe in his own person vnto him as to beare the kings baner or his speare , or to leade his hoast , or to be his marshall , or to blow a horne , when he seeth his enemies inuade the land , or to find a man at armes to fight within the foure sease , or else to do it himselfe , or to beare the kings sword before him at his coronation , or at that day to be his sewer , caruer , butler , or chamberlaine . litleton tit . sergeantie . petit sergeantie , is where a man holdeth land of the king , to yeeld him yearely some small thing toward his warres , as a sword , dagger , bowe , knife , speare , paire of gloues of maile , a paire of spurs , or such like . litleton . titulo petit sergeanty . chivalry , that may hould of a common person as well as of the king , is called ( scutagium ) escuage , that is seruice of the shield . and this is either vncertaine or certaine . escuage vncertaine is likewise two-fold : first , where the tenent by his tenure , is bounde to follow his lord going in person to the kings wars against his enemies , either him selfe , or to send a sufficient man in his place , there to be maintained at his cost so many daies , as were agreed vpon betweene the lord and his first tenent at the graunting of the see . and the daies of such seruice seeme to haue bene rated by the quantity of the land so houlden : as if it extend to a whole knights fee , then the tenent was bounde thus to follow his lord fourty dayes . and a knights fee , was so much land , as in those dayes was accoumpted a sufficient liuing for a knight : and that was acres , as some opinion is , or as others thinke : or pounds per annum . camdens brittan . pa. . in meo . s. thomas smyth sayeth , that census equestris is . poundes reuenew in free lands . if the law extend but to halfe a knights fee , then the tenent is bounde to follow his lord , as aboue is said , but twenty dayes . if to a fourth part , then ten daies . fitzh . nat . br . fo . . c. & . c. e. the other kinde of this escuage vncertaine is called castelward : where the tenent by his land is bound , either by him selfe , or by some other , to defend a castell , as often as it shall come to his course . escuage certaine , is where the tenent is set at a certaine summe of money , to be paide in lieu of such vncertaine seruice , as that a man shall yerely pay for a knights fee , . shillings , stow annal . pag. . for halfe a knights fee , tenne shillings , or some like rate . and this seruice , because it is drawne to a certaine rent , groweth to be of a mixt nature : not meerely socage , for that it smelleth not of the plough , and yet so cage in effect : being now neither personall seruice , nor vncertaine , litleton , titulo secage . this tenure called chiualry , hath other conditions annexed vnto it ; as homage , fealty , wardship , reliefe , and mariage . bracton . li. . ca. . which what they signifie , looke in their places . chilualry is either generall or especiall . dier . fo . . nu . . generall seemeth to be , where only it is said in the feofment , that the tenent houldeth per seruitium militare , without any specification of sergeanty , escuage , &c. speciall , that which is declared particularly what kinde of knights seruice he houldeth by . chorall , ( choralis ) seemeth to be any that by vertue of any of the orders of clergie , was in auncient time admitted , to sit and serue god in the quier , which in latine is tearmed chorus . chose , ( res ) is the french word as generall as ( thing ) is with vs. it is in the common lawe , vsed with diuers epithites worthie the interpretation : as , chose locall , is such a thing as is annexed to a place . for example : a mill is chose locall , kitchin fol. . chose transitorie , in the same place seemeth to bee that thing which is moueable , and may be taken away , or caried from place to place . chose in action , is a thing incorporeall , and onely a right : as an annuitie , an obligation of debt , a couenant , or vowcher by warrantie . broke titulo . chose in action . and it seemeth , that chose in action , may be also called chose in suspence , because it hath no reall existence or being , neither can be properly sayde to bee in our possession . broke ibid. churchwardens ( ecclesiarum gardiani ) be officers yearely chosen , by the consent of the minister and parishioners , according to the custome of euery seuerall place , to looke to the church , church-yard , and such things , as belong to both , and to obserue the behauiours of their parishioners for such faults as appertaine to the iurisdiction or censure of the court ecclesiasticall . these be a kind of corporation , inabled by lawe , to sue for any thing belonging to their church , or poore of their parish . see lamberd in his pamphlet of the duty of church-wardens . churchesset , is a word that i find in fleta . lib. . cap. in fine . whereof he thus writeth : certam mensuram bladi tritici significat , quam quilibet olim sanctae ecclesiae die sancti martini tēpore tam britonum quàm anglorum contribuerunt . plures tamen magnates , post romanorum adventum , illam contributionem secundum veterem legem moysi nomine primitiarum dabant : prout in brevi regis knuti , ad summum pontificem transmisso , continetur , in quo illam contributionem , ( chirchsed ) appellant , quasi semen ecclesiae . cinamom ( cinamomum ) is a tree , whereof the barke is knowne to be a pleasant , comfortable , and medicinall spice , which you haue described in gerards herball . lib. cap. . this is reckoned among garbleable spices , an . . iac. cap. . cinque portes ( quinque portus ) be those speciall hauens , that lye toward fraunce , and therfore haue bene thought by our kings , from time to time , to be such as ought most vigilantly to be obserued against invasion . in which respect , the places where they be , haue an especiall gouernor or keeper , called by his office lord warden of the cinque ports : and divers priuiledges graunted vnto them , as a particular iurisdiction , their warden hauing the authoritie of an admirall among them , and sending out writs in his owne name . crompton in his iurisdictions , fol. . nameth the cinque ports , douer , sandwich , rye , hastings , winchelsea , rumney , hithe : whereof some , because the number exceedeth fiue , must either be added to the first institution , by some later graunt , or be accompted as appendents to some of the rest . see gardein of the cinque ports : and the statute anno . h. . cap. . circuit of action , ( circuitus actionis ) is a longer course of proceeding , to recouer the thing sued for , then is needfull . see the new tearmes of lawe . circumstantibus , is a word of art , signifying the supply or making vp of the number of iurors , ( if any empaneled appeare not , or appearing , be chalenged by either partie ) by adding vnto them so many other of those that are present or standing by , as will serue the turne , v. ann . . h. . cap. . and anno . elizab. cap. . citie ( civitas ) commeth of the french ( citè ) and signifieth with vs , as it doth in other regions , such a towne corporate , as hath a bishop and a cathedrall church . for lucas de penna lege vnica , tituli , de metropol . beryto . ti . . lib. . cod. hath these words : idem locus , vrbs , civitas , & oppidum appeliatur . ( pro quo est etiam infra . de spectaculis . l. nemo . ) civitas enim dicitur , quatenus cum iustitia & magistratuum ordine gubernatur , oppidum , quaetenus est ibi copia incolarum : & vrbs , quatenus muris debito more cingitur . proprie autem dicitur civitas , quae habet episcopū . supra de episcop . & cleri . l. nulli . aliâs dicitur generaliter omnis habitatio plurimorum , quae muro cingitur . Π. de verb. signif . lib. . & de penu lega . l. nam quod . § . st ita . sed stricte loquendo , si episcopo caret , dicitur vrbs . Π. de verb. signif . l. pupillus . § . oppidum , &c. yet m. crompton in his iurisdictions , where he reckoneth vp the cities , leaueth out elye , though it haue a bishop and a cathedrall church , and putteth in westminster , though now it haue no bishop . and anno . eliza. ca. . westminster is called a citie , anno . eiusd . cap. . of the statutes not printed , it is alternatiuely tearmed a citie or borow . it appeareth by the statute , . h. cap. . that then there was a bishop of westminster . civitas , according to aristotle , lib. . politicorum . ca. pri . is defined to be a certaine or vniforme gouernment of the inhabitants . & caesar ciuitatem vocat populum eodem iure vtentem . camd. brittan . pa. . but this is the generall definition of a common wealth , and not of a city , at the least , as we now a daies particularly take it . for ouer and beside that which is aboue saide , cassanaeus in consuetudi . burg. pa. . saith , that france hath within the teritories of it , . cities , and giueth reason of this his saying , because there be there so many seates of archbishops and bishops . clack , as to clack , force , and bard , alias , beard good wools . anno . . h. . ca. . whereof the first , viz. to clack wooll , is to cut of the sheepes marke , which maketh it to waigh lesse , and so yeld the lesse custome to the king , to force wooll , is to clip of the vpper and more heary part of it , to bard or beard it , is to cut the head and necke from the rest of the fleece . clamea admittenda in itinere per atturnatum , is a writ whereby the king commandeth the iustices in eyre to admitte of ones claime by atturney , that is employed in the kings seruice , and cannot come in his owne person . regist . orig . fol. . b. clayme ( clameum ) is a chalenge of interest in any thing that is in the possession of another , or at the least out of his owne : as , claime by charter , clayme by descent , old nat . br . fol. . si dominus infra annum clameum qualitercunque apposuerit : bracton . lib. . cap. . see the definition & diuers sorts of claime in plowden . casu stowel . fol. . a. clarentius . see herald . clorgie ( clerus , clericatus ) is diuersly taken : sometime for the whole number of those , that are de clero domini ) of the lords lot or share , as the tribe of leuy . was in iudaea : some time for a plee to an indictment , or an appeale , and is by stawnf . pl. cor . li. . ca. . thus defined . clergie is an auncient liberty of the church , which hath bene confirmed by diuers parlaments , and is , when a priest , or one within orders , is arraigned of felony , before a seculer iudge , he may pray his clergie . which is as much , as if he prayed to be deliuered to his ordinarie , to purge him selfe of the offence obiected . and this might be done in case of murder . coke . li. . fo . . a. this liberty is mentioned in articulis cleri . anno . . ed. . ca. . and what persons might haue their clergy , and what not , see stawnf . pl. cor . li. . ca. . & . howbeit there be many statuts made sithence he writ that booke , wherby the benefite of clergy is abridged . as anno . . el. ca. . anno . . eiusdem . ca. . anno . . eiusd . cap. . . . & anno . eiusd . cap. . a. . eiusd . c. . anno . eiusd . ca. . a. . eiusd . ca. . & ca. . of this see cromptons iustice of peace , fo . . . . . and lamberds eirenarcha . li. . ca. . pa. . and note by the way , that the auncient course of the law in this point of clergy , is much altered . for by the statute anno . . eliza. ca. . clerks be no more deliuered to their ordinaries to be purged , but now euery man , though not within orders , is put to reade at the barre , being founde guilty , and conuicted of such felonie as this benefit is still granted for : and so burnt in the hand and set free for the first time , if the ordinaries commissioner or depute standing by do say : ( legit vt clericus ) or otherwise suffereth death for his transgression . clerico addmittendo , is a writ directed to the bishop , for the admitting of a clerk to a benefice vpon a ( ne admittas ) tryed & founde for the party that procureth the writ . regist . orig . fo . . . clerico captoper statutū mercatorum , &c. is a writ for the deliuery of a clerk out of prison , that is imprisoned vpon the breach of a statut merchant . register orig . fo . . clerico conuicto commisso gaolae in defectu ordinarii deliberando , &c. is a writ for the deliuery of a clerk to his ordinary , that formerly was conuicted of felony , by reason his ordinary did not chalenge him according to the priuiledge of clerks . register . orig . fo . . a. clerico infra sacros ordines constituto non elegendo in officium , is a writ directed to the bay lifs , &c. that haue thrust a bayliwick or bedelship vpō one in holy orders , charging them to release him againe . register orig . fo . . b. clerk ( clericus ) hath two significations : one , as it is the title of him , that belongeth to the holy ministery of the church , that is ( in these daies ) either minister , or deacon , of what other degree or dignity soeuer : though according to former times , not only sacerdotes & diaconi , but also , subdiaconi , cantores , acolyti , exorcistae , & ostiarii were within this accoumpt , as they be at this daye , where the canon law hath full power . and in this signification , a clerk is either relegious ( otherwise called regular ) or secular . anno . . h. . ca. . the other signification of this word , noteth those , that by their function or course of life , practise their penne in any court or other wise ; as namely , the clerk of the rolles of parliament , clerks of the chancery , and such like , whose peculiar offices i purpose to set downe in order , according to that knowledge that i could procure of them . clerke of the parlament rolles , ( clericus rotulorum parlamenti ) is he that recordeth all things done in the high court of parlament , and engrosseth them fairely into parhement rolles , for their better keeping to all posteritie . of these there be two , one of the higher , another of the lower or common house , cromptons iurisd . fol. . & . smith de rep . anglor . pag. . see also vowels booke touching the order of the parlament . clerke of the crowne in the chācerie ( clericus coronae in cancellaria ) is an officer there , that by himselfe or his deputie , is continually to attend the lord chanceler , or lord keeper , for speciall matters of estate by commission , or the like , either immediatly from his maiestie , or by order of his priuy councell , as well ordinary as extraordinary . viz. commissions of lieuetenancies , of iustices errant , and of assises , of oyer and terrainer , of gaol deliuery , of the peace , and such like , with their writs of association , and dedimus potestatem , for taking of oathes . also all generall pardons vpon graunts of them at the kings coronation , or at a parlament , where he sitteth in the higher house at the parlament time ; the writs of parlament , with the names of knights and burgesses , which be to be returned into his office . he hath also the making of all speciall pardons , and writs of execution , vpon bonds of statute of the staple forfeited : which was annexed to his office in the raigne of queene mary , in consideration of his continuall and chargeable attendance : both these before being common for euery coursitour , and clerk of court to make . clerk of the crowne ( clericus coronae ) is a clerk or officer in the kings bench , whose function is to frame , reade , and record all indictments against traitours , felons , and other offenders there arraigned vpon any publique crime . he is otherwise termed clerke of the crowne office . and anno . . h. . ca. . he is called clerk of the crowne of the kings bench . clerk of the extreates ( clericus extractorum ) is a clerk belonging to the exchequer , who termely receiueth the extreats out of the lord treasurers remembrancer his office , and writeth them out to be levied for the king . he also maketh ceduls of such summes extreated , as are to be discharged . clerk of assise ( clericus assisae ) is he , that writeth all things iudicially done by the iustices of assise in their circuits . cromptons iurisd . fo . . clerke of the pele ( clericus pellis ) is a clerk belonging to the exchequer , whose office is , to enter euery tellers bille into a parchement rolle called ( pellis receptorum ) and also to make another rolle of paiments , which is called ( pellis exituum ) where in he setteth downe , by what warrent the monie was paid . clerk of the warrants ( clericus warrantorum ) is an officer belonging to the court of common plees , which entreth all warrants of atturney for plantiffe and defendant , and enrolleth all deedes of indentures of bargaine and sale , which are acknowledged in the court , or before any iudges out of the court . and he doth extreate into the exchequer , all issues , fines , and amercements , which growe due to the king any way in that court , and hath a standing fee of ten pound of the king , for making the same extreats . see fitzh . nat . br . fo . . in prin . clerk of the petit bagge ( clericus parvae bagiae ) is an officer of the chawncerie , of which sort there be three , and the master of the roles their cheife . their office is to record the returne of all inquisitions out of euerie shire , all liveries granted in the courte of wardes , all ouster les mains , to make all patents of customers , gawgers , controllers , and aulnegers , all conge d' eslires for bishops , all liberateis vpon extents of statute staples , the recouerie of recognisances forfeited , and all elegits vpon them , the summons of the nobilitie , clergie , and burgeses to the parlament ; commissions directed to knights and other of euery shire for seassing of the subsidies . writs for the nominations of collectours for the fiftenthes , and all traverses vpon any office , bille or otherwise , and to recieue the money due to the king for the same . this officer is mentioned . anno . h. . ca. . clerk of the kings great wardrobe ( clericus magnae garderobae regis ) is an officer of the kings house , that keepeth an account or inventarie in writing , of all things belonging to the kings wardrobe . this officer is mentioned . anno . ed. . ca. . clerk of the market ( clericus merketi ) is an officer of the kings house . anno . ed. . cap. . & anno . r. . ca. . whose dutie is to take charge of the kings measures , and to keepe the standards of them , ( that is ) the examples of all the measures that ought to be through the land : as of elns , yards , lagens , as quarts , pottels , gallons , &c. of weights , bushels , and such like , and to see , that all measures in euerie place , be answerable vnto the said standard , fleta . li. . ca. . . . . . of which office , as also of our diuersitie of weights and measures , you may there finde a treatise worth the reading . britton also in his . chapter saith in the kings person , to this effect : we will that none haue measures in the realme but we our selues : but that every man take his measures and weights from our standards : and so goeth on with a tractat of this mater , that well sheweth the auncient law and practise in this poynt . touching this officers dutie , you haue also a good statut . anno . r. . cap. . clerk of the kings siluer ( clericus argenti regis ) is an officer belonging to the court of common plees , vnto whome euerie fine is brought , after it hath beene with the custos brevium , and by whome the effect of the writ of couenant is entred into a paper booke ; and according to that note , all the fines of that terme are also recorded in the rolles of the court . and his entrie is in this forme : he putteth the shire ouer the margen , and then saith . a. b. dat domino regi dimidiam merkam ( or more , according to the value ) pro licentia concordandi . c. cum c. d. pro talibus terris , in tali villa , & habet chirographum per pacem admissum &c. clerk of the peace ( clericus pacis , ) is an officer belonging to the sessions of the peace : his dutie is , in the sessions to reade the endictments , to enrolle the acts , and drawe the proces : to record the proclamations of rates for servants wages , to enrolle the discharge of apprentices , to keepe the counterpaine of the indenture of armour , to keepe the register booke of licences , giuen to badgers and laders of corne , & of those that are licensed to shoote in guns , & to certify into the kings bench transcripts of indictments , outlawries , attainders , and convictions had before the iustices of the peace , within the time limited by statute . lamberds eirenarcha . li. . ca. . fo . . clerk of the signet ( clericus signetti ) is an officer attendant continually on his maiesties principall secretary , who alwaies hath the custodie of the priuie signet , as well for sealing his maiesties priuate leters , as also such graunts as passe his maiesties hands by bill assigned . of these there be fower that attend in their course , and haue their diet at the secretaries table . more largely you may reade of their office , in the statute made anno . h. . ca. . clerk of the priuie seale ( clericus priuati sigilli ) is an officer ( whereof there be foure in number ) that attendeth the lord keeper of the priuie seale , or if there be none such , vpon the principal secretarie , writing and making out all things that be sent by warrant from the signet to the priuie seale , and are to be passed to the great seale : as also to make out ( as they are tearmed ) privie seales , vpon any especiall occasion of his maiesties affaires ; as for loane of mony , or such like . of this officer , and his function , you may read the statute anno . . h. . ca. . he that is in these daies called the lord keeper of the privie seale , seemeth in auncient time to haue beene called clerke of the priuie seale , and to haue beene reckoned in the number of the great officers of the realme . read the statute . anno . . r. . ca. . clerk of the iuries or iurata writs ( clericus iuratorum ) is an officer belonging to the court of the common plees , which maketh out the writs called ( habeas corpora ) and ( distringas ) for appearance of the iurie , either in court or at the assises , after that the iurie or panell is returned vpō the ( venire facias ) . he entreth also into the rols the awarding of these writs , and maketh all the continuance from the going out of the ( habeas corpora ) vntill the verdict be giuen . clerk of the pipe ( clericus pipae ) is an officer in the kings exchequer , who hauing all accounts and debts due to the king delivered and drawne downe out of the remembrancers offices , chargeth them downe into the great rolle : who also writeth sūmons to the shyreeue , to levie the said debts vpon the goods and catels of the deptors : and if they haue no goods , then doth he drawe them downe to the l. treasurers remembrancer , to write extreats against their lands . the awncient revenew of the crowne , remaineth in charge afore him , & he seeth the same answered by the fermers & shyreeues to the king. he maketh a charge to al shyreeues of their summons of the pipe and green-wax , and seeth it answered vpon their accompts . he hath the drawing and ingrossing of all leases of the kings land . clerk of the hamper or hanaper ( clericus hanaperij ) is an officer in chawncerie , anno . fd. . ca. . otherwise called warden of the hamper , in the same statute , whose functiō is , to receiue al the mony due to the kings maiestie , for the seales of charters , patēts , commissions , and writs , as also feese due to the officers for enrolling & examining the same , with such like . he is tied to attendance on the lord chanceler , or lord keeper , daily in the terme time , and at all times of sealing : hauing with him leather bags , wherein are put all charters , &c. after they be sealed by the lord chanceler , and those bags being sealed vp with the lord chancelers priuate seale , are to be deliuered to the controller of the hanaper , who vpon receipt of them , doth as you shall reade in his office . this hanaper representeth a shadowe of that which the romanes termed ( fiscum ) that conteined the emperours treasure . clerk of the plees ( clericus placitorum ) is an officer in the exchequer , in whose office all the officers of the court ( vpon especiall priuiledge belonging vnto them ) ought to siew or be siewed vpon any action . clerk of the treasurie ( clericus thesaurariae ) is an officer belonging to the common plees , who hath the charge of keeping the records of the courte , and maketh out all the records of nisi prins , hath the fees due for all searches , and hath the certifiing of all records into the the kings bench , when a writ of errour is brought ; and maketh out all writs of ( supersideas de non molestando ) which are graunted for the defendants , while the writ of errour hangeth . also he maketh all exemplications of records being in the treasurie . he is taken to be the servant of the chiefe iustice , and remoueable at his pleasure : whereas al other officers are for terme of life . there is also a secondarie , or vnder clerk of the treasurie for assistance , which hath some allowances . there is likewise an vnder keeper , who alway keepeth one key of the treasury doore , & the chiefe clerke of the secundarie another : so the one cannot come in without the other . clerk of essoines , ( clericus essoniorum ) is an officer belonging to the courte of common plees , who onely keepeth the essoines rolle , and hath for entring everie essoine , sixe pence , and for euery exception to barre the essoine , in case where the partie hath omitted his time , sixe pence . he hath also the providing of parchment , and cutting it out into rols , and marking the numbers vpon them , and the deliuerie out of all the rols to euerie officer , and the receiuing of them againe , when they be written , and the binding and making vp of the whole bundels of euerie terme : and this he doth as seruant to the cheife iustice . for the cheife iustice is at charge for all the parchemēt of all the rols . clerk of the outlawries , ( clericus vtlagariarum ) is an officer belonging to the court of common plees , being onely the seruant or deputie to the kings atturney generall , for making out the writs of ( capias vtlagatum ) after outlawrie . and the kings atturneis name is to euerie one of those writs . and whereas seuen pence is paide for the seale of everie other writ betwixt partie & party , there is but a peny paid for the seale of this writ , because it goeth our at the kings suite . clerk of the sewers , ( clericus sucraerum ) is an officer apperteining to the commissioners of sewers , writing all things that they doe by vertue of their cōmission , for the which see sewers : and see the statute anno . elizabe . ca. . clerk controller of the kings house , ( whereof there be two ) is an officer in court , that hath place and seate in the compting house and authoritie to allow or disallow the charges and demands of pursuivants or messengers of the greene cloth , purveiours , or other like . he hath also the ouer-sight and controlling of all defaults , defects and miscariages of any the inferiour officers , and to sit in the counting house with the superiour officers , viz. the l. steward , treasurer , controller and coferer . either for correcting or bettering things out of order ; and also for bringing in country provision requisite for the kings houshold : and the censure for fayling of cariages and carts warned & charged for that purpose . this officer you haue mentioned . anno . . h. . ca. . clerk of the nihils ( clericus nihilorum ) is an officer in the exchequer , that maketh a rolle of all such summes , as are nihiled by the shyreeues vpon their estreats of greene waxe , and dilivereth the same into the lord treasurers remembrancer his office , to haue execution done vpon it for the king . clerk of the check , is an officer in court , so called , because he hath the check and controlment of the yeomen of the gard , and all other ordinary yeomen and huissiers belonging either to his maiesty , the queene , or prince , either giuing leaue , or allowing their absences or defects in attendance , or deminishing their wages for the same . he also nightly by himselfe or depute , taketh the view of those that are to watch in the court , and hath the setting of the watch . this officer is mentioned . anno . . h. . ca. . clerk marshiall of the kings house , seemeth to be an officer that attendeth the marshiall in his court , and recordeth all his proceedings , anno . h. . cap. . clothe of raye . anno . ed. . sta . . cap. . closhe , is an vnlawfull game forbidden by the statute , anno . ed. . cap. . which is casting of a bowle at nine pinnes of wood , or nine shanke bones of an oxe or horse . clove is the . part of a weigh of cheese i. . pound , anno . h. . cap. . cloues ( caryophylli ) are a spice knowne by sight to euery man. they be flowers of a tree called ( caryophyllus ) gathered and hardened by the sunne . of their nature you may reade in gerards herball . lib. . cap. . this is cōprised among such spices , as be to be garbled , anno . iacob . cap. . cocket ( cokettum ) is a seale appertaining to the kings custome house , regist . orig . fol. . a. & also ascrow of parchement sealed and deliuered by the officers of the custome house to merchants , as a warrant that their merchandize be customed , anno . h. . cap. . which parchment is otherwise called literae de coketto , or literae testimoniales de coketto . regist . vbi supra . fol. . a. so is the word vsed . anno . & . ed. . cap. . and anno . ed. . stat . . cap. . this word is also vsed for a distinction of bread in the statutes of bread & ale , made anno . h. . where you haue mention of bread coket , wastell bread , bread of trete , and bread of common wheate . coferer of the kings houshold , is a principal officer of his maiesties court , next vnder the controller , that in the counting house and elsewhere at other times , hath a speciall charge and ouersight of other officers of the houshold , for their good demeanure and cariage in their offices , to all which one and other , being either sergeants , yeomē , groomes , pages , or children of the kitchin , or any other in any roome of his maiesties seruants of houshold , and payeth their wages . this officer is mentioned . anno . elixab . cap. . cogs anno . h. . cap. . conisour of a fine , is he , that passeth or acknowledgeth a fine in lands or tenemēts to another : cognise● is he to whom the fine is acknowledged , west . parte . symbol . titulo fines . sect . . cognizance , commeth from the french ( cognisance . i. intelligentia , intellectus , notio , cognitio , ) with vs it is vsed diuersly : some time signifying a badge of a seruingmans sleeue , whereby he is discerned to belong to this or that noble or gentleman : somtime an acknowledgement of a fine , or confession of a thing done : as cognoscens latro , bracton . lib. . tract . . cap. . . . cognoscere se ad villanum . idem lib. . tractat . . cap. . as also to make cognisance of taking a distresse : somtime as an audience or hearing of a mater iudicially , as to take cognisance : sometime a power or iurisdiction , as cognisance of plee , is an habilitie to call a cause or plee out of another court : which no man can doe but the king , except he can shew charter for it . manwood parte . of his forest lawes , pag. . see the new tearmes of the lawe , and the new booke of entries , verbo , conusance . cognatione . see cosenage . cognisour , see conisour . cognitionibus mittendis , is a writ to a iustice , or other , that hath power to take a fine , who hauing taken knowledgement of a fine , deferreth to certifie it into the court of common plees , commanding him to certifie it . regist . orig . . b. coin ( cuneus , vel cuna ) seemeth to come from the french ( coin . i. angulus ) which probably verifieth the opinion of such , as doe hould the auncientest sort of coyne to be cornered and not round . of this lawyers substantiue ( cuna ) commeth the lawyers verbe ( cunare ) i. to coyne . cromptons iustice of peace fol. . coliander seede , or rather coriander seede ( semen coriandri ) is the seede of an herbe so called , medicinable and wholesome for diuers good purposes , which see in gerards herball . lib. . cap. . . it is numbred among the drugges that be to be garbled , anno . iacob . cap. . collaterall ( collateralis ) commeth of the latine ( laterale ) i. that which hangeth by the side . lateralia viatoria . Π. de lega . & fideium , tertio l. . seeme to signifie a budget or capcase to hang by a saddle pomel . collaterall , is vsed in the common law , for that which commeth in , or is adhering of the side : as , collaterall assurance , is that which is made ouer and beside the deede it selfe . for example , if a man couenant with another , and enter bond for the performance of his couenant , the bond is termed collaterall assurance : because it is externall , and without the nature and essence of the couenant . and crompton in his iurisd . fol. . saith , that to be subiect to the feeding of the kings deere , is collateral to the soyle within the forest . in like maner may we say , that the libertie to pitche boothes or standings for a faire in another mans ground , is collaterall to the ground . the priuate woods of a common person within a forest , may not be cut without the kings licence . for it is a prerogatiue collaterall to the soyle . manwood parte . of his forest lawes , pag. . collaterall warrantie . see warrantie . collation of a benefice ( collatio beneficii ) signifieth properly the bestowing of a benefice by the bishop , that hath it in his owne gift or patronage : and differeth from institution in this , for that institution into a benefice , is performed by the bishop at the motion or presentation of another , who is patron of the same , or hath the patrons right for the time . extra de institutionibus . & de concessione praebendarum . &c. and yet is collation vsed for presentation . anno . . ed. . stat . . collatione facta vni post mortem alterius , &c. is a writ directed to the iustices of the cōmon plees , commanding them to direct their writ to a bishop , for the admitting of a clerk in the place of another presented by the king , that during the suit betweene the king and the bishops clerk , is departed . for iudgment once passed for the kings clerk , and he dying before he be admitted , the king may bestow his presentation vpon another , register orig . fo . . b. collatione heremitagii , is a writ whereby the king conferreth the keeping of an ermitage vpon a clerk . register orig . fo . . colour , ( color ) signifieth in the common law , a probable plee , but in truth false , and hath this end , to draw the triall of the cause from the iury to the iudges . of this see two apt examples in the author of the new tearms . verbo colour . who also referreth you to the doctor and student . fo . . &c. see broke tit . colour in assise , trespas &c. fo . . collusion , ( collusio ) is in our common law , a deceitfull agreemēt or compact between two or more , for the one party to bring an action against the other to some euill purpose ; as to defraude a third of his right , &c. see the new tearms . and broke titulo . collusion . see also one case of collusion in the register orig . fo . . a. combat , ( duellum ) is a french word signifiing as much as ( certamen , decertatio , dimicatio , discrimen , praelium , pugna ) but in our common law , it is taken for a formall triall of a doubtfull cause or quarrell , by the sword or bastons of two champions . of this you may reade at large both in diuers ciuilians , as paris de puteo , de remilitari & duello . alciat de duello , hotomam disputatio . feudalium . ca. . and others : as also in our common lawyers of england , namely glanuile . li. . ca. . bracton . li. . tracta . . ca. . britton ca. . horns mirrour of iustices li. . ca. des exceptions in fine proxime ante c. iuramentū duelli . dier . fo . . nu . . & . that this also was aunciently the law of the lombards , before they inuaded italy ( which was about the yeare of our lord appeareth by sigonius , in his historie de regno italiae . lib. . de ari●aldo rege . who there reporteth , that the said king , hauing put away his wife gundeberga , vpon a surmise of adulterie with tato duke of etruria , at the priuate suggestion of adalulphus , a great man among the lombards , and being charged by clotharius the king of france his ambassadors , of whose bloud she was , that he had done her wrong : he answered , that he had done her no wrong . whereupon ansoaldus one of the ambassadors replyed , that they would easily beleeue him , if he would suffer the truth to be tried by combat , betweene some one of the queens friends , and her accuser , according to the custome of the lombards . and the king yeelding vnto this , adalulphus was vanquished by one pitto , otherwise called charles , set foorth for the queenes chāpion , and she restored to her former place and honour . cominseede , aliâs , cumin seed , ( semen cumini ) is a seede brought foorth by an hearbe so called , which you may see described in gerards herball , lib. . cap. . this is placed among the garbleable drugges , anno . iacob . cap. . comitatu commisso , is a writ or a commission , whereby the shyreeue is authorized to take vpon him the swaye of the countie . regist . orig . fol. . a. & b. and co 〈…〉 reports , li. . fol. . a. comitatu & castro commisso , is a writ whereby the charge of a countie , together with the keeping of a castell , is committed to the shyreeue , reg orig . fol. . a. commaundrie ( praeceptoria ) was by some mens opinion , a maner or chiefe mefuage , with which lands or tenements were occupied , belonging to the priorie of s. iohns in hierusalem in england : and he which had the gouernement of any such maner or house , was called the commaunder , who had nothing to dispose of it , but to the vse of the priorie , taking onely his sustenance thence , according to his degree , and was vsually a brother of the same priorie . author of the new tearmes of lawe . verbo , commaundrie . by some other bookes it appeareth , that the chiefe prior of s. iohns , was a cōmaunder of a nunnerie , and cōstituted the priores of the said nunnerie , who was vnder his obedience , and remoueable at his will , notwithstanding that shee had covent , and common seale , and had her possessions seuerall , and was wont to lease the land for terme of yeares . fulbecks paralels , fol. . a. of these commādries also petrus gregorius lib. de beneficiis cap. . num . . hath these words : praeceptoriae dictae commendae sacrorum militum , 〈…〉 eluti ordinis hospitalii sancti ioannis hierosolymitani , beneficia quidem secundum quid ecclesiastica dic untur à barbatia ad clement . causam col . . de electione . tamen non propriè dicuntur ex genere communium beneficiorum , eo quòd personae conferentes , & quibus conferuntur , non sunt laicae vel ecclesiasticae , sed tertu ordinis . de hiis beneficiis ●fit mentio . cap. exhibita de priuilegiis . in extravag . com . in cap. dudum , de decimis . these in many places of our realme are termed by the name of temples , because they sometime belonged to the templers . of these you reade ann . h. . cap. . & anno . eiusd . ca . and of these the said gregorius tolosanus . li. . sui syntagmatis . cap. . hath these words : monuimus superiori capite , crescente numero peregrinorum , iuxta tēplum hierosolymitanum xenodo . chium aedificatum , tit . diui iohannis , quo exciperentur peregrini , quos coenobia capere non possent . huius ergo ministerio quoque viri pij nobiles se devoverunt , qui & peregrinos tutarentur , & à latronum seu agarenorum incursu defenderent . horum professio est votum solenne paupertatis , & abdicationis propriorum , castitatis , & obedientiae . proinde propter primum votum nihil proprii habent , vel habere debent , sed accipiunt annonam , quàm diu vivunt , vel praeceptorias ( quas vocant commanderies ) administrant , quàm diueas possident , & optione mutant ; vel ex magistri licentia permutant reddituri morientes quae apud eos reperiētur , societati of these corasius in his paraphrase ad sacerd . mat . parte prim . cap. . saith thus : praeceptoriae rhodienses , cùm non nisi fratribus hierosolymitanis , atque it a personis ecclesiasticis conferantur ; beneficiis ecclesiasticis annumerari meritò debent . commaundement ( praeceptum ) is vsed diuersely in the common lawe : some time for the commaundement of the king , when vpon his meere motion , and from his owne mouth , he casteth any man into prison . stawnf . pl. cor . fo . . or of the iustices . and this commādement of the iustices , is either absolute or ordinary : absolute , as when vpon their owne authority in their wisedome and discretion , they commit a man to prison , for a punishment : ordinary is , when they commit one rather for safe custody then punishment . and a man committed vpon an ordinary commandemēt , is repleuisable . pl. cor . fo . . cōmandement is againe vsed for the offence of him , that willeth another man to transgresse the lawe , or to doe any such thing , as is contrary to the lawe , as murder , theft , or such like . bract. li. . tra . . ca. and this the ciuilians call ( mandatum ) angelus de maleficiis . commen ( communia ) commeth from the french ( commun . i. quod ad omnes pertinet ) and signifieth in our common lawe , that soile or water , whereof the vse is common to this or that towne , or lordship ; as common of pasture ( communia pesturae . ) bract. ls . . ca. . & . commen of fishing . communia piscariae . idem . li. . ca. . commen of turbary . i. of digging turues ( communia turbariae ) idem . li. . ca. . cōmen of estouers ( communia estoueriorum . ) kitchin. fo . . comen , is deuided into commen in grosse , commen appendant , commen dppertinent , and commen per cause de vicinage . i. by reason of neighbourhood . cōmen in grosse , is a liberty to haue cōmen alone ( that is ) without any land or tenement , in another mans land , to him selfe for life , or to him and his heires . and this is commonly passed by deede of graunt or specialty . old nat . br . fo . . & . commen appendant and common appertinent , be in a maner confounded : as appeareth by fitzh . nat . br . fo . . and be defined to be a liberty of common , appertaining to , or depending of such or such a freehould . onely kitchin. fo . . seemeth to make this difference , that he which hath commen appertinēt , hath it without limitation of this or that kinde of beastes : but that is controlled by dyer . fo . . b. nu . . he that hath commen appendant , hath it but for beastes commenable , as horses , oxen , kine , and sheepe , being acompted fittest for the plowman : and not of goates , geese and hogs . whereunto the author of the new teaams of law addeth another difference : which is , that common appertinent may be seuered from the land , wherunto it is appertinent , but not common appendant . the originall of common appendant s. ed coke li. . fo . . thus expresseth : common appendant , by the auncient lawe , had beginning in this maner , when a lord infeoffed another in erable lands , to hould of him in socage ( idest , per seruicium socae ) as all tenure in the beginning ( according to litleton ) was : the feoffee , to mamtaine the seruice of his plough , had commō in the wasts of his iord , for his necessary beasts to gaine and compas his land : & that for two causes : one for that , as then it was taken , it was ( tacitè ) implyed in the feofment , by reason the feoffee could not gaine or compas his land without catell , and catell could not be sustained without pasture . anb so by consequent the feoffec had ( as a thing necessary and incident ) common in the wastes and land of the lord . and this appeareth by aunciēt books tempore . ed. i. tit . common . & . e. . tit . common . . & . ed. . tit . admesurement . , & . ed. . and by the rehersall of the statute of merton . ca. . the second reason was for maintenance , and aduancement of tillage , which is much regarded and fauoured in the lawe , thus farre s. edward . commen per cause de vicinage , is a libertie , that the tenents of one lord in one towne , haue to common with the tenents of another lord in another towne which kinde of common they that chalenge , may not put their catell into the common of the other towne . for then they be distremable . but turning them into their owne fields , if they strey into the neighbours commen , they must be suffered . see the termes of lawe . common of pasture the civilians call ius compascendi , cum sc : plures ex municipipibus qui diversa praedia possiáebant , saltum communem , vt ius compascendi haberent , mercarentur . l. penul . Π. si servit , vendicetur . it is also called ius compascuum . ibidem . commendam ( commenda ) is a benefice , that being voide , is cōmended to the charge & care of some sufficient clerk , to be supplied , vntill it may be conveniently provided of a pastor . and that this was the true originall of this practise , you may read at large in duarenus de sacris ecclesiae ministeriis & beneficiis li. . ca. . and whereas the glosse , in verbo commendare . in ca. nemo deinceps : de electione . in sexto . defineth commendam esse ecclesiae custodiam al icui commissam : iohannes andraeas therevpon saith thus : huic definitioni necessariò haec aditcienda putem : in tempus gratiâ evidentis necessitatis & vtilitatis . idque docuit textus in dicto capite . nemo . corrasius in his paraphrase de sacerdotiorum materia parte prima . ca. . nu . . & seqq . thus describeth the mater : in commendam conceditur beneficium , cùm romanus pontifex , legatus , aut episcopus ( neque enim inferioribus , qui ex privelegio aut alio iure spirituals conferunt , concessum est , ca. cum omnes basilicae . . quaest . . ) ecclesiae vacantis custodiam alicui committit , administratorem generalem eius templi eum constituens , ca. nemo . de electio . in sexto . commendare enim aliud est nihil , quàm deponere . l. publius . Π. depositi . l. cōmēdare . Π. de verb : signif . ) hoc autē , ad tempus sex mensium , & pro evidenti necessitate aut vtilitate ecclesiae lex permittit , ( d. ca. nemo . ) quaere commendatarius qui ecclesiae vacantis & fructuum , ad tempus duntaxat custodiā habet , nec tenere beneficiū , iusve habere in beneficio , aut canonicum titulum censebuur : vti nec depositarius in re deposita . wherof also petrus gregorius de beneficiis , ca. . nu . . thus writeth . in hac quarta divisione , potest adds tertium genus beneficii , quod citra praescriptionem qualitatis a persona alterius qualitatis quàm beneficium exigat naturâ , possidetur , sed sine praeiudicio naturae beneficii , & per dispensationem , eo commendato olim ad tempus certum certae personae , hodie , vt plerunque , quàm diu commendatarius vixerit . vocant hoc beneficium commendatum commendam : vt si regulare beneficium á summo pontisice conferatur , nomine commēdae , saeculari . nam ideo non mutatur beneficii natura , nec fit ideo saeculare , &c. and a little after , interim annotabimus duplici de causa fieri commendam ecclesiae , nempe vel in vtilitatem ecclesiae , vel commendatarii . in primo commenda titulum non dat beneficii commendatario , & dicitur potius custodia quae revocari potest : quod repugnat naturae beneficii , quod est perpetuum . in secundo autem casu beneficium censetur in vtilitatem commendatarii commēda facta , quam possidere potest quàm diu vixerit , &c. whome you may also read . ca. . li. . commissarie ( cōmissarius ) is a title of ecclesiasticall iurisdiction , appertaining to such a one as exerciseth spirituall iurisdiction ( at the least , so farre as his commission permitteth him ) in places of the dioces so farre distant from the cheife citie , as the chanceler cannot call the subiects to the bishops principall consistorie , without their to great molestation . this commissarie is of the canonists termed commissarius or officialis foraneus . lyndwoods provin . ca. . de accusatio . ver . bo . mandatum archiepiscopi . in glos . and is ordeined to this especiall end , that he supply the bishops iurisdiction and office in the out places of the dioces , or els in such parishes as be peculiars to the bishop , and exempted from the iurisdiction of the archdeacon . for where either by prescription or composition , there be archedeacons that haue iurisdiction within their archdeaconries , as in most places they haue , there this commissarie is but superfluous , and most commonly , doth rather vexe and disturb the country for his lucre , then of conscience seeke to redresse the liues of offenders . and therefore the bishop taking prestation mony of his archdeacons yearely pro exteriori iurisdictione , as it is ordinarily called , doeth by superonerating their circuit with a commissarie , not onely wrong archdeacons , but the poorer sort of subiects much more , as common practise daily teacheth to their great woe . cōmission , ( commissio ) is for the most part , in the vnderstanding of the common lawe , as much as ( delegatio ) with the civilians . ( see broke . titulo commission . ) and is taken for the warrant or letters patents , that all men exercising iurisdiction either ordinarie or extraordinarie , haue for their power to heare or determine any cause or action . of these see diuers in the table of the register originall . verbo . commissio . yet this word sometime is is extended farder , then to maters of iudgement : as the commission of purveiours or takers . anno . . h. . ca. . but with this epitheton ( high ) it is most notoriously vsed for the honourable commission court , instituted and founded vpon the statute . eliza. ca. . for the ordering and reformation of all offences , in any thing appertaining to the iurisdiction ecclesiasticall : but especially such as are of higher nature , or , at the least , require greater punishment , then ordinarie iurisdiction can afford . for the world being growne to that loosenes , as not to esteeme the censure of excommunicatiō , necessitie calleth for those censures of fynes to the prince and imprisonment , which doe affect men more neerely . commission of rebellion ( commissio rebellionis ) is otherwise called a writte of rebellion , ( breue rebellionis ) and it hath vse , when a man after proclamation made by the shyreeue vpon an order of the channcerie , or court of starre chamber , vnder penaltie of his allegance , to present himselfe to the court by a certaine day , appeareth not . and this commission is directed by way of commaund to certaine persons , to this end , that they , or three , two , or one of them , doe apprehend , or cause to be apprehend , the party as a rebell and contemner of the kings lawes , wheresoeuer they find him within the kingdome , and bring him , or cause him to be brought to the courte , vpon a day therein assigned . the true copie of this commission or writ , you haue in cromptons diuers iurisdictions . court de starre chamber : as also in west . tractat . touching proceedings in chancerie , sectio . commissioner ( commissionarius ) is he that hath commission , as leters patents , or other lawfull warrant , to execute any publike office : as commissioners of the office of fines and licenses . west . parte . . symbol : titulo fines . sect . . commissioners in eyre . an . . ed. . ca. . with infinite such like . committee , is he to whome the consideration or ordering of any mater is referred , either by some court , or consent of parties , to whome it belongeth . as in parlament , a bille being read , is either consented vnto and passed , or denied , or nether of both , but referred to the consideration of some certaine men , appointed by the house farder to examine it : who thereupon are called committees . committee of the king west . par . . symbo . titulo chancerie . sect . . this word seemeth to be something strangely vsed in kitchin. fo . . where the widow of the kings tenent being dead , is called the cōmittee of the king . that is , one committed by the auncient law of the land , to the kings care and protection . common bench ( bancus communis ) is vsed some time for the court of common plees . anno . . ed. . ca. . so called , as m. camden saith in his britannia . pa. . quia communia placita inter subditos ex iure nostro , quod communae vocant , in hoc disceptantur , that is , the plees or controuersies tryed betweene common persons . common fine ( finis communis ) of this fleta hath these words : quibus expeditis ( speaking of the businesse finished by iustices in eyre ) consueverunt iusticiarii imponere villatis , iuratoribus , hundredis , & toti comitatui concelamētum , & omnes separatim amerciare : quod videtur voluntarium , cùm de periurio & concelamento non fuerint convicti , sed potius dispensandum esset cumeis quod animas in statera posuerint pro pacis conservatione . li. . cap. . § . quibus . and a litle following . § . et provisum , he hath these words : et provisum est , quòd communes misericordiae vel fines comitatuum amerciatorumin finibus itinerum iusticiariorum ante recessum ipsorum iustitiariorum per sacramenta militum , & aliorum proborum hominum de commitatu eodem , affidentur super eos qui contribuere debent : vnde particulae iusticiariis liberentur , vt cum aliis extractis suis ad scaccarium liberare valeant . these last words of his haue relation to the statute , westminst . pr. cap. . which reade . see fine . common plees ( communia placita ) is the kings court now held in westminster hall , but in auncient time moueable , as appeareth by the statute called magna charta . cap. . as also anno . ed. . cap. . and pupilla oculi , parte . cap. . but m. gwin in the preface to his readings saith , that vntill the time that henry the third granted the great charter , there were but two courts in all , called the kings courts : whereof one was the exchequer , and the other , the kings bench , which was then called ( curia domini regis ) and ( aula regia ) because it followed the court or king : and that vpon the grant of that charter , the court of common plees was erected and setled in one place certaine : viz. at westminster . and because this court was setled at westminster , wheresoeuer the king lay : thereupon m. gwin , vbi supra , saith , that after that , all the writs ranne , quòd sit coram iusticiariis meis apud westmonasterium : whereas before the partie was cōmanded by thē , to appeare coram me vel iusticiariis meis , simply without addition of place , as he well obserueth out of glanvile and bracton , the one writing in henry the seconds time , before this court was erected , the other in the later end of henry the thirds time , who erected this court . all ciuill causes both reall and personall are , or were in former times , tryed in this court , according to the strict lawe of the realme : and by fortescue , cap. . it seemeth to haue bene the onely court for reall causes . the chiefe iudge thereof is called the lord chiefe iustice of the common plees , accompanied with . or . assistants or associates , which are created by leters patents from the king , and ( as it were ) enstalled or placed vpon the bench , by the lord chaunceler and lord chiefe iustice of the court , as appeareth by fortescue , cap. . who expresseth all the circumstances of this admission . the rest of the officers belonging to this court , are these : the custos breuium , three protonotaries , otherwise called prenotaries , chirographer , filazers . exigenters , . clerke of the warrants , clerke of the iuries or iurata writs , clerke of the treasurie , clerke of the kings siluer , clerke of the essoins , clerke of the outlawries . whose distinct functions looke in their places . see common bench . common day in plee of land , an . . r. . stat . . cap. . signifieth an ordinarie day in the court as octavis michaelis , quindena pascae . &c. as you may see in the statute made anno . h. . concerning generall dayes in the bench . common house of parlament , is vsed for the nether house : because the commōs of the realme , that is , the knights of the shires and burgeses , possesse that house . crompton iurisd . . commotes , seemeth to be compounded of the prepositiō ( con ) and ( mot . i. dictio , verbum ) and signifieth in wales a part of a shire , as a hundred . anno . . h. . ca. . it is written commoithes . anno . . h. . ca. . and is vsed for a gathering made vpon the people ( as it seemeth ) of this or that hundred , by welsh minstrels . common law ( comunis lex ) hath three diuers significatiōs . which see in the author of new termes of law . verbo . common law . communi custodia , is a writ that lyeth for that lord , whose tenent houlding by knights seruice , dyeth , and leaueth his eldest sonne vnder age , against a straunger that entreth the land , and obtaineth the ward of the body . it may seeme to take the name from the common custom or right in this case : which is , that the lord haue the wardship of his tenent , vntill his full age , or because it is common for the recouery both of land and tenent , as appeareth by the forme thereof . old nat . br . fo . . see also the register orig . fo . . a. communi placito non tenendo in scaccario , is a writ directed to the treasurer and barons of the exchequer , forbidding them to hould plee betweene two common persons in that court , neither of them belonging toward the said court . register orig . fo . . b. companion of the garter , is one of the knights of that most noble and honourable order . anno . . h. . ca. . see garter . compromis , ( compromissum ) is a mutuall promise of two or more parties at difference , to referre the ending of their controuersies , to the arbitriment and equitie of one or more arbitratours . west . defineth is thus , parte . . symbol . titulo compromise . sect . pri . a compromise or submission ( arbitrium , compromissum , submissio ) is the faculty or power of pronouncing sentence betweene persons at controuersie , giuen to arbitratours by the parties mutuall priuate consent , without publique authority . computo , is a writ so called of the effect : because it compelleth a baylife , chamberlaine , or receiuer to yeld his accoumpt , old nat . br . fo . . it is founded vpon the statut of westm . . ca. . anno . . ed. i. which for your beter vnderstanding you may read . and it lyeth also for executours of executours . anno . . ed. . statut . de prouis . victuall . ca. . thirdly , against the garden in socage for waste made in the minority of the heire . marlb . ca. . and see farder in what other cases it lyeth . register orig . fo . . old nat . br . vbi supra . & fitzh . nat . br . fo . . concealers , be such as finde out concealed lands , that is , such lands as priuily are kept from the king by common persons , hauing nothing to shew for them . anno . . eliza. ca. . they be so called a concelando , as mons a mouendo . per antiphrasin . concord , ( concordia ) is in the common law , by a peculiar signification , defined to be the very agreement betweene parties , that intend the leuying of a fine of lands one to the other , how and in what maner the land shall passe . for in the forme thereof many things are to be considered . west . parte . . symbol . titulo . fines and concords , sect . . whome read at large . concord is also an agreement made vpon any trespas cōmitted betweene two or more : and is diuided into a concord executory , and a concord executed . see plowden . casu reniger , & fogassa fo . . & . where it appeareth by some opinion , that the one bindeth not as being imperfect : the other absolute and tyeth the parties : and yet by some other opinion in the same case , it is affirmed that agreements executory be perfect , and doe noe lesse binde , then agreements executed . fo . . b. concubinage , ( concubinatus ) is an exception against her , that sieweth for her dower , whereby it is alleadged , that shee was not a wife lawefully maried to the party , in whose lands shee seeketh to be endowed , but his concubine . britton . ca. . bract. li. . tract . ca. . condition , ( conditio ) is a rate , maner , or lawe , annexed to mens acts , staying or suspending the same , and making them vncertaine , whether they shall take effect or no , west . parte . symb . li. . sect. . in a lease there may be two sorts of conditions : condition collaterall , or condition annexed to the rent . sir edward coke . lib. . pennants case . fol. . collaterall condition is that , which is annexed to any collaterall act : as that the leassee shall not go to rome , ibi fol. . condition is also diuided , into condition in deed or fact , and condition in lawe : which otherwise may be tearmed , condition expressed , and condition implyed . perkins . conditions . . these and other like diuisions of conditions you may reade in the author of the new tearmes of law . verbo . condition . and in litleton . li. . cap. . conders , may seeme to proceed from the french , ( conduire . i. deducere , gubernare ) they be such as stand vpon high places neere the sea coast , at the time of herring fishing , to make signes with bowghes , &c. in their hand vnto the fishers , which way the shole of herrings passeth . for that may beter appeare to such as stand vpon some high cliffe on the shore , by a kind of blew colour , that the said fish causeth in the water , then to those that be in the shippes . these be otherwise called huers , by likelihood of the french ( huyer . i. exclamare ) and balkers : as appeareth by the statute , anno . iacob . cap. . cone & key . bracton . lib. . ca. . num . . looke cover and key . confirmation ( confirmatio ) is a strengthening of an estate formerly had , and yet voydable , though not presently voide . for example , a bishop graunteth his chancelershippe by patent for the terme of the patentee his life : this is no voide graunt , but voydable by the bishops death , except it be strengthened by the confirmation of the deane and chapter . see more of this , in west . parte prim . symb . lib. . sect . . and fitz. nat . br . fol. . b. . h. . d. . g. and litleton lib. . cap. . confiscate ( confiscatus ) may be said to come either from the latine ( confiscare ) or the french ( confisquer . i. in publicum addicere . ) all these words are drawne from ( fiscus ) which originally signifieth a hamper , pannyer , basket , or freyle : but metonymically the emperours treasure : because it was anciently kept in such hampers , &c. and though our king keepe not his treasure in such things : yet as the romanes said , that such goods as were forfeited to the emperors treasurie for any offence , were bona confiscata : so do we those that are forfeited to our kings exchequer . see more of these goods confiscate . in stawnf . pl. cor . lib. . cap. . conge d'eslire ( venia eligendi ) is very french , and signifieth in our common lawe , the kings permission royall , to a deane and chapter in time of vacation , to chuse a bishop : or to an abbey or priorie of his owne foundation , to chuse their abbot or prior. fitz. nat . br . fol. . b. . b. c. &c. touching this mater , m. gwin in the preface to his readings saith , that the king of england , as soueraigne patron of all archbishoprickes , bishoprickes , and other ecclesiasticall benefices , had of auncient time , free appointment of all ecclesiasticall dignities , when soeuer they chaunced to be voide : inuesting them first ( per baculum & annulum ) and afterward by his leters patents : and that in proces of time he made the election ouer to others , vnder certaine formes and conditions : as namely , that they should at euery vacation before they chuse , demaund of the king ( congè d'eslire ) that is , licence to proceede to election , and then after the election , to craue his royall assent , &c. and furder he affirmeth by good proofe out of common lawe bookes , that king iohn was the first that graunted this , and that it was afterward confirmed by westm . pri . ca. i. which statute was made anno . . ed. pri . and againe by the statut ( articuli cleri ) ca. . which was ordained . anno . . ed. . statuto tertio . congeable , cōmeth of the french ( conge i. venia ) it signifieth in our common law , as much as lawfull or lawfully done ; as the entry of the disseisee is congeable . litleton . fo . . in meo . conisance , see cognisance . conizour , aliàs cognizour ( recognitor ) commeth of the french ( cognoistre . i. cognoscere , cernere ) and is vsed in the passing of fynes for him , that doth acknowledge the fyne ; and the conizee is hee , to whome it is acknowledged . west . parte . . symbol . li. . sect . . & parte . titulo . fines sectio . . see recognizour . coniuration ( coniuratio ) is the very french word drawne from the latine , which as it is compounded of ( con & iuro ) so it signifieth a compact or plot , made by men combining themselues together by oath or promise , to doe some publique harme . but in our common lawe , it is especially vsed for such as haue personall conference with the deuill or evill spirit , to knowany secret , or to effect any purpose . anno . eliza. ca. . and the difference that i haue obserued ( how truly let those iudge that be beter skilled in these maters ) betweene coniuration and witch craft , is because the one seemeth , by prayers and invocation of gods powerfull names , to compell the devill , to to say or doe what he commandeth him : the other dealeth rather by a friendly and voluntarie conference or agreement betweene him or her and the deuill or familiar , to haue her or his desires and turnes serued in lien of blood , or other gift offered vnto him , especially of his or her soule . and both these differ from inchawntments or forceries , because they are personall conferences with the deuill , as is said : but these are but medicines and cerimoniall formes of words ( called commonly charmes ) without apparition . consanguineo , is a writ , for the which see avo : and see the register orig . de auo . proavo , & consanguineo . fo . . a. conseruatour of the truce and safe conduicts ( conservator induciarum & saluorum regis conductuum ) was an officer appointed in euery port of the sea , vnder the kings leters patents , and had . pound for his yearely stipend , at the least . his charge was to enquire of all offences done against the kings truce & safe conduicts , vpon the maine sea out of the countries , and out of the franchises of the cinque ports of the king , as the admirals of custome were wont and such other things as are declared . anno . h. . ca. . touching this mater you may read another statut . anno . h. . cap. . conseruatour of the peace ( conseruator vel custos pacis ) is he that hath an especiall charge by vertue of his office , to see the kings peace kept . which peace learned m. lamberd defineth , in effect , to be a withholding or abstinence from that iniutious force and violence , which boysterous and vnruly persons are in their natures prone to vse toward others , were they not restrained by lawes and feare of punishment . of these conservators he farder saith thus : that before the time of k. edward the third , who first erected iustices of peace , there were sundrie persons , that by the common lawe had interest in keeping of the peace . of those some had that charge as incident to their offices , which they did beare , and so included within the same , that they were neuer the lesse called by the name of their office only : some others had it simply as of it selfe , and were thereof named custodes pacis , wardens or conservators of the peace . the former and later sort he againe subdivideth . which read in his eirenarcha . li. . ca. . consideration , ( consideratio ) is that with vs , which the grecians called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : that is , the materiall cause of a contract , without the which no contract bindeth . this consideration is either expressed , as if a man bargain to giue . shillings for a horse : or els implyed , as when the law it selfe inforceth a consideration ; as if a man come into a common inne , and there staying sometime , taketh both meat and lodging , or either for himselfe and his horse : the lawe presumeth , that he intendeth to pay for both , though nothing be farder couenanted betweene him and his host : and therefore if he discharge not the house , the host may stay his horse . fulb : parel : tracta . contracts . fo . . a. b. consistory ( consistorium ) is a word borowed of the italians , or rather lombards , signifing as much as ( praetorium ) or tribunal . vocab . vtriusque iur . it is vsed for the place of iustice in the courte christian . convocation house ( domus convocationis ) is the house , wherein the whole clergie is assembled , for consultation vpon maters ecclesiasticall in time of parlament . and as the house of parlament , so this consisteth of two distinct houses , one called the higher conuocation house , where the archebishops and bishops sitte seuerally by themselues : the other the lower conuocation house , where all the rest of the clergy are bestowed . see prolocutor . conusance . see cognisance . conuzour , see cognizour . consolidation ( consolidatio ) is vsed for the combining , and vniting of two benefices in one . brooke titulo . vnion . this word is taken from the civile lawe , where it signifieth properly an vniting of the possession , occupation , or profit with the propertie . for example , if a man haue by legacie vsumfructum fundi , and after ward buy the propertie or fee simple ( as we call it ) of the heire , hoc casu consolidatio fieri dicitur . § . . de vsufructu . in institut . see vnion , and vnitie of possession . conspiracie ( conspiratio ) though both in latine and french , it be vsed for an agreement of men , to doe any thing either good or bad : yet in our lawyers bookes , it is alway taken in the evill part . it is defined . anno . . ed. pri . statut . . to be an agreement of such , as doe confedre or binde themselues by oath , covenant , or other allyance , that everie of them shall beare and ayde the other falsly and malitiously to indight , or falsly to mooue ormaintaine plees , and also such as cause childrē within age , to appeale mē of felonie , whereby they are imprisoned , and sore grieued : and such as reteine men in the contries with liueries or feese , to maintaine their malitious enterprises . and this extendeth as well to the takers , as to the givers . and stewards and baylifes of great lords , which by their seignorie , office , or power , vndertake to beare or maintaine quarels , plees , or debates that concerne other parties , then such as touch the estate of their lords , or themselues . anno . ed. . cap. . anno . . h. . ca. . & of this see more . an . . h. . c. . & & an . . h. . c. . as also in the new book of ētries . ver . cōspiracy . conspiracie , in the places before mentioned , is taken more generally , and is confounded with maintenance and champertie . but in a more speciall signification , it is taken for a confederacie of two at the least , falsly to endict one , or to procure one to be indicted of felonie . and the punishment of conspiraciē , vpon an endictment of felonie , at the kings suyte , is that the partie attainted , leese his franke lawe , to the intent that he be not empaneled vpon iuries or assises , or such like employments , for the testifiing of truth . and if he haue to doe in the kings court , that he make his atturney : and that his lands , goods and chatels be seysed into the kings hands , his lands estreaped ( if he finde no better fauour ) his trees raced , and his body committed to prison . . lib. assis . . cromptons iustice of peace . fo . . b. this is called vilanous iudgement or punishment . see vilanous iudgement . but if the partie greiued siew vpon the writ of conspiracie , then see . fitzh . nat . br . f. . d. . i. conspiracie may be also in cases of lesse weight . idem . fo . . a. &c. see franke law . conspiratione , is a writ that lieth against conspiratours . fitz. nat . br . fo . . d. cromptons iurisd . fo . . see also the regist . fo . . constable ( constabularius vel conestabulis ) is a saxon word , compounded of ( cuning or cyng ) and ( staple ) which doe signifie the stay and hold of the king . lamb. duties of constables . nu . . but i haue heard it made heretofore of these two words , ( comes stabuli ) which seemeth to me the more probable , because we haue this officer from france , as most others , and not from the saxons . and tilius in his commentaries ( de rebus gallicis ) li. . ca. de conistabili , hath the same etymologie , giuing the reason thereof , ( quia praeest stabulo . i. equiliregis ) which office is auncient heere in england , and mentioned by bracton , seeming to answere him , that was called ( tribunus celervm ) vnder the first kings of rome , and ( magister equitum ) afterward . the germans that inhabite the side of the riuer rhene , note him by this title ( die constofler ) and in counterfeit latine ( constofelerus ) and in owlder time ( constafolarius ) that the romanes were wont to tearme ( assessorem iudicij ) and ( as spiegelius in his lexicon noteth , deriue the word ( a stafolo comitis . i. gradu iudicis fiscalis . for staffel in their language ( as he saith ) signifieth a grees or steppe of a paire of staires . and therevpon ( staffelstein ) being a word vsed in their very awncient writings , signifieth as much as praetorium . but a man many times may shew in this kinde more curiositie then discretion : as perhaps some will iudge me heere to haue done . and therefore enough of this . this word is diuersly vsed in our common law : first forthe cunstable of england , who is also called marshiall . stawn . pl. cor . fo . . of whose great dignitie and authoritie a man may find many arguments and signes both in the statutes and chronicles of this realme . his sway consisteth in the care of the common peace of the land , in deedes of armes , and maters of warres . lamb. vbi supra with whome agreeth the statut . anno . . r. . ca. . statu . . smith de repub. anglo . li. . c. . of this officer or magistrate m. gwyn in the preface to his readings saith to this effect : the court of the constable and marshiall determineth cōtracts touching deeds of armes out of the realme , and handleth things cōcerning wars within the realme , as combats , blasōs of armorie , &c. but it may not deale with battel in appeales , nor generally with any other thing that may be tried by the lawe of the land . and reade fortescue ca. . this office was belonging heeretofore to the lords of certaine maners , iure feudi : and why it is discontinued , see dyer . fo . . nu . . out of this high magistracie ( saith m. lamberd ) were drawen these lower constables , which we call constables of hundreds & franchises , and first ordeined by the statute of winchester , anno . . ed. . which appointeth for the conseruation of the peace , and view of armour , two constables in euerie hundred and franchise , which in latine are called constabularii capitales . and these be nowe a daies called high constables : because continuance of time , and increase both of people and offenfes , hath againe vnder these made others in euery towne called petit constables , in latine ( subconstabularios ) which are of like nature but of inferiour authoritie to the other , as you may read at large in that learned mans treatise before named . of these also read s. thomas smith li. . ca. . beside these there be officers of particular places , called by this name ; as constable of the tower . ssawnf . pl. cor . fol. . & anno . . h. . ca. . stowes annals pa. . iurisdict . fo . . constable of the exchequer . anno . . h. . statute . . constable of douer castel . camdeni britan. pa. . fitzh . nat . br . fo . . otherwise called castellane . westm . i. ca. . anno . . ed. i. but these be castellani properly . as m. lamberd . noteth , though conioined in name with the others . see the statute . anno . . h. . ca. . m. manwood parte . prima . ca. . of his forest lawes , maketh mention of a constable of the forest . consuetudinibus & seruities , is a writ of right close , which lyeth against the tenent , that deforceth his lord of the rent or seruice dew vnto him . of this see more at large the old nat . br . fo . . fitzh . eodem . fo . . and the register orig : fo . . consultation , ( consultatio ) is a writ whereby a cause , being formerly remoued by prohibition from the ecclesiasticall court , or court christian , to the kings court , is returned thither againe . for the iudges of the kings court , if vpon comparing the libell with the suggestion of the party , they do find the suggestion false , or not proued , and therefore the cause to be wrongfully called from the court christian ; then vpon this consultation or deliberation , they decree it to be returned againe , wherevpon the writ in this case obtained , is called a consultation . of this you may reade the register orig . fo . . . &c. vsque fol. . old nat . br . fo . . & fitzh . eodem . fo . . contenement , ( contenementum ) seemeth to be the free hould land , which lyeth to a mans tenement or dwelling house , that is in his owne occupation . for in magna charta . ca. . you haue these words : a free man shall not be amerced for a small fault , but after the quantity of the fault : and for a great fault , after the maner thereof , sauing to him his contenement or free hould . and a merchant likewise shal be amerced sauing to him his merchandies : and any other villaine then owers , shal be amerced sauing his wainage , if he take him to our mercy . and bracton . li. . tracta . . ca. nu . . hath these words : & sciendum , quòd miles & liber homo non amerciabitur , nisi secundùm modum delicti . seoundùm quod delictum fuit magnum vel parvum , & saluo contenemento suo : mercator verò non nisi salua merchandiza sua , & villanus nisi saluo waniagio suo . which mercy seemeth to haue bene learned from the ciuile lawe : whereby ( executio non potest fieri in boues , aratra , aliaue instrumenta rusticorum . l. executores & authen . agricultores . co : quae res pign . obliga nec in stipendia , arma , & equos militum . l. stipendia . co. de executio . rei indica . & ibi doctores . nec in libros scholarium . glos . in . l. nepos proculo . verbo . dignitate . Π. de verbo : significa . quae tamen rusticorum , militum , & scholarium priuilegia circa executionem vera esse , & eatenus obtinere intelligenda sunt , quatenus alia bona habent . iohan. eimericus in processu indiciario : cap. de executione senten . . num . . continuance , seemeth to bee vsed in the common law , as prorogatio is in the ciuile lawe . for example : continuance vntil the next assise . eitz . nat . br . fol. . f. and . d. in both which places it is sayde , that if a record in the treasurie be alledged by the one partie , and denyed by the other : a ( certiorari ) shall be siewed to the treasurer , and the chamberlaine of the exchequer : who , if they certifie not in the chauncerie , that such a record is there , or that it is likely to be in the tower : the king shall send to the iustices repeating the ( certificate ) and will them to continue the assise . in this signification it is likewise vsed by kitchin. fol. . & . and also anno . h. . cap. . continuall claime ( continuum clameum ) is a claime made from time to time . within euery yere and day , to land or other thing , which in some respect we cannot attaine without daunger . for example , if i be disseised of land , into which , though i haue right vnto it , i dare not enter for feare of beating : it behooueth me to hold on my right of entry to the best oportunitie of me & mine heyre , by approching as neare it as i can , once euery yere , as long as i liue : and so i saue the right of entry to mine heire . termes of law . againe , if i haue a slave or villein broken from me , and remaining any where within the auncient demesn of the king , being in the handes of the king , i cannot maintaine the writ de nativo habendo , as long as he continueth there : but if i claime him within the yeare and the day , and so continue my claime , vntill i can find him within that compasse : i may lawfully lay hold of him as mine owne . fitz. nat . br . fol. . see more in litleton , verbo continuall claime . and the new booke of entries . ibid. and fleta . lib. . cap. . contract ( contractus ) is a covenant or agreement with a lawfull consideration or cause . west . parte prim . symbol . lib. . sect. . and lib. . Π. de verbo : significa . with other places , it is thus defined : contractus est negotium inter duos pluresve data opera gestum , vt vel vterque invicem , vel alteruter obligetur . who so will throughly examine the difference betweene this and ( pactū ) and such other words something like in signification : let him search the civilians , and he shall find worke both pleasant and profitable , and well fitting the common lawe also . contra formam collationis , is a writ that lyeth against an abbot or his successor , for him ( or his heire ) that hath giuen land to an abbey , to certaine good vses , and findeth that the abbot or his successour hath made a feofment thereof , with the assent of the tenents , to the disherison of the house or church . this is founded vpon the statute of westm . . cap. . and of this see the regist . orig . fol. . and fitzh . nat . br . fol. . and note that the author of the termes of law saith , that this is not brought against the tenent or alience . contra formam feoffamenti , is a writ , that lyeth for the heire of a tenent infeoffed of certain lands or tenements , by charter of feofment by a lord , to make certain seruices and suites to his court , and is afterward distreined for more , then is contained in the said charter . regist . orig . fol. . old nat . br . fol. . and the tearmes of the lawe . contributione faciendae , is a writ that lieth in case where more are bound to one thing , & one is put to the whole burden . fitz. nat . br . fo . . bringeth these examples . if tenēts in cōmon or ioynt , hold a mill ( pro indiviso ) & equally take the profits therof , the mill falling to decay , & one or more of thē , refusing to contribute toward the reparation therof , the rest shall haue this writ to cōpell thē . and if there be . coparceners of land , that owe suite to the lords court , & the eldest perform the whole : then may she haue this writ to compell the other two to a cōtributiō of the charge or to one of them , if one only refuse . the old . nat . br . frameth this writ to a case , where one onely suite is required for land , & that land being sold to diuers , suite is required of them all , or some of them by distresse , as intirely , as if all were still in one . fol. . see the regist . orig . fol . controller ( contrarotulator ) cōmeth of the french ( contrerouleur . i. antigraphus , gracè 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) which in rome was vsed for him , cui id muneris iunctum erat , vt observaret pecuniam , quam in vsum principis vel civitatis colligerunt exactores . budaeus in annota . prio . in pand . titulo de officio quaestoris . in england we haue diuers officers of this name : as controller of the kings house , pl. cor . fol. . & anno . h. . cap. . controller of the nauie . anno . elizabeth . cap. . controller of the custome . cromptons iurisd . fol. . controller of calis . anno rich. . cap. . controller of the mint . anno . h. . cap. . controller of the hamper , ( contrarotulator hamperii ) which is an officer in the chauncerie attending on the lord chaunceler or keeper daily in the terme time , and dayes appointed for sealing . his office is to take all things sealed from the clerke of the hanaper , inclosed in bags of lether , as is mentioned in the said clerkes office , and opening the bags to note the iust number , & especiall effects of all thinges so receiued , and to enter the same into a speciall booke , with all the duties appertaining to his maiestie , and other officers for the same , and so chargeth the clerke of the hanaper with the same . controller of the pipe , ( contrarotulator pipae ) who is an officer of the exchequer that writeth out summons twice euery yeare to the shyreeues , to levie the fermes and debts of the pipe , and also keepeth a contrarolment of the pipe. controller of the pell , is also an officer of the exchequer , of which sort there be two , viz. the two chamberlaines clerkes , that do or should keepe a controlment of the pell of receipts and goings out . and in one word , this officer was originally one , that tooke notes of any other officers accompts or receipts , to the intent to discouer him , if he dealt amisse , and was ordained for the princes beter securitie , howsoeuer the name sithence may be in some things otherwise applyed . to the proofe whereof you may take these few words out of fleta . lib. . cap. . in prin . qui cùm fuerint ad hoc vocati & electi , ( speaking of the coroners ) attachiari praecipiant appella : qui & capitula coronae in comitatu praesentēt : contra quos vicecomes loci habeat contrarotulum , tam de appellis & inquisitionibus , quàm aliis officium illud tangentibus , &c. which ( contrarollum ) is nothing else , but a paralel of the same quality and contents with the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or originall . this also appeareth by anno . ed. . ca. . and this signification it seemeth to haue also in fraunce . for there the king hath his receyuers of taylles in euery prouince , and controllers , qui ad maiorem fidem susceptoribus accedunt , describuntque in tabulis quae colliguntur . gregorii syntagn . lib. . cap. . num . . conuentione , is a writ , that lyeth for the breach of any couenant in writing . register orig . fo . . old nat . br . fo . . fitzh . calleth a writ of couenant . nat . br . fo . . who deuideth couenants into personall and reall , making a sufficient discourse of them both : as also how this writ lyeth for both . conuict , ( conuictus ) is he that is founde guilty of an offence by the verdict of the iurie . stawnf . pl. cor . fo . . yet master crompton out of iudge dyers commentaries . saith , that conuiction is , either when a man is outlawed , or appeareth and confesseth , or els is founde guilty by the inquest . crompt . iust . of peace . fo . . a. conuiction and attainder are often confounded . li. . fo . . a. b. see attaint . coparceners , ( participes ) be otherwise called parceners : and in common law , are such as haue equall portion in the inheritance of their auncestour . and , as litleton in the beginning of his third booke saith , parceners be either by law or by custome . parceners by law , are the issue femall , which ( noe heyre male being ) come in equality to the lands of their auncestours . bract. li. . ca. . parceners by custome , are those that by custome of the country , chalenge equall part in such lands : as in kent by the custome called ( gauel kinde ) this is called adaequatio among the feudists . hot. in verbis feuda . verbo . adaequatio . and among the ciuilians it is tearmed familiae erciscundae iudicium . quod inter cohaeredes ideo redditur , vt & haereditas diuidatur , & quod alterum alteri dare facere oportebit , praestetur . hotoman . of these two you may see litleton at large in the first and second chapters of his third booke , and britton cap. . intituled de heritage diuisable . the crowne of england is not subiect to coparcinory . anno . . h. . ca. . copie , ( copia ) commeth from the french copia . i. le double de quelqut escripture , latinè descriptio , graece 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and signifieth in our common language , the example of an originall writing : as the copie of a charter , the copie of a court rolle . copia libelli deliberanda , is a writ that lyeth in case where a man cannot get the copie of a libell at the hands of the iudge ecclesiasticall . register orig . f. . copiehould , ( tenura per copiam rotuli curiae ) is a tenure , for the which the tenent hath nothing to shew , but the copie of the rols made by the steward of his lords court . for the steward , as he inrolleth , and maketh remembrances of all other things done in the lords court : so he doth also of such tenents , as be admitted in the court , to any parcell of land or tenement belonging to the maner : and the transcript of this , is called the court rowle : the copie whereof the tenent taketh from him , and keepeth as his onely euidence . coke . li. . fo . . b. this tenure is called a base tenure , because it houldeth at the wil of the lord . kitchin. fo . . chap : copihoulds . fitzh . nat . br . fo . . b. c. who there saieth , that it was wont to be called tenure in villenage , and that this copihould is but a new name . yet is it not simply at the will of the lord , but according to the custome of the maner . so that if a copiehoulder breake not the custome of the maner , and thereby forfeit his tenure , he seemeth not so much to stand at the lords courtesie for his right , that he may be displaced hand ouer head at his pleasure . these customes of maner be infinit , varying in one point or other , almost in euery seuerall maner . first , some copiehould is fineable , and some certaine : that which is fineable , the lord rateth at what fine or incom he pleaseth , when the tenent is admmitted vnto it : that which is certaine , is a kinde of inheritance , and called in many places custumary : because the tenent dying , and the hould being void the next of the blood paying the custumarie fine , as two shillngs for an acre or such like , may not be denied his admission . secondly , some copihoulders haue by custome , the wood growing vpon their owne land , which by law they could not haue . kitchin vbisupra . thirdly , copi-holders , some be such as hold by the verge in ancient demesn : & although they hold by copy , yet are they in accompt a kind of free-holders . for if such a one commit felonie , the king hath ( annum , diem , & vastum ) as in case of freehold . some other hold by common tenure , called meere copy hold : and they committing felonie , their land escheateth to the lord of the maner foorthwith . kitchin fol. . chap. tenents per verge in auncient demesn . what auncient demesn is , see in the right place . see tenent by copie of court rolle . this is the land that in the saxons time , was called folk land . lamberd , explicat . of saxon words . verbo , terra ex scripto . west . parte prim . symbol . lib. . sect. . defineth a copi-holder thus : tenent by copie of court rolle , is he which is admitted tenent of any lands or tenements within a maner , that time out of the memory of man , by vse and custome of the said maner , haue bene dimisable , and dimised to such , as will take the same in fee , in fee-taile , for life , yeares , or at will , according to the custome of the said maner , by copie of courtrolle of the same maner . where you may read more of these things . coraage ( coraagium ) is a kinde of imposition extraordinarie , & growing vpon some vnusuall occasion , and it seemeth to be of certaine measures of corne . for corus tritici , is a certaine measure of corne . bracton libro . ca. . nu . . who in the same chapter . nu . . hath of this mater these words : sunt etiam quaedam communes praestationes , quae seruitia non dicuntur , nec de consuetudine veniunt , nisi cùm necessitas interuenerit , vel cùm rex venerit : sicut sunt hidagia , coraagia , & caruagia , & alia plura de necessitate & ex consensu communitotius regni introducta , & quae ad dominum feudi non pertinent , & de quibus nullus tenetur tenentē suū acquietare , nisi se adhoc specialiter obligauerit in charta sua . &c. cordiner , commeth of the french ( cordoüannier . i. sutor calcearius ) a shoomaker , and is so vsed in diuers statutes . as anno . . h. . ca. , & anno . . eiusdem . ca. . and others . cornage ( cornagium ) commeth of the french ( cor . i. cornu ) and in our common law , signifieth a kinde of grand sergeantie , the seruice of which tenure , is to blow a horne , when any invasion of the northern enemie is perceiued . and by this many men hold their land northward , about the wall , commonly called the picts walle . camd. britan . p. . hence commeth the word ( cornuare ) to blow a horn . pupil . oculi , parte . . ca. . in charta de foresta . this seruice seemeth to haue proceeded from the romanes . for i finde ( cornicularios ) mentioned in the ciuile lawe . viz. li. . cod. de officio diuerso . iud. . lege . . & . lib. . titulo de apparitoribus praefectorum praetorio . . lege . . & . where lucas de penna defineth them ( eos qui cornu faciunt excubias militares . and brissonius . libro . . de verbo significat . saith thus of them : ( hi militum quoddam genus fuere , qui corniculo merebant , vnde nomen habent . where it appeareth by him out of suetonius , plinie , and livie , that the horne was an honour & reward giuen for seruice in war. corner tile . see gutter tile . corodye ( corodium ) commeth of the latine verb ( corrodo ) and signifieth in our common lawe , a summe of mony or allowance of meate and drinke due to the king from an abbey , or other house of religion , whereof he is the founder , toward the reasonable sustenāce of such a one of his seruants , being put to his pension , as he thinketh good to bestowe it on . and the difference betweene a corodie and a pension seemeth to be , that a corodie is allowed toward the maintenance of any the kings seruants , that liueth in the abbey : a pension is giuen to one of the kings chaplaines , for his better maintenance in the kings seruice , vntill he may be prouided of a benefice . of both these read fitzh . nat . br . fo . . . . who there setteth downe all the corodies and pensions certaine , that any abbey , when they stoode , was bound to performe vnto the king . there is mention also of a corodie in stawnf . praerogatiue . fo . . and this seemeth to be awncient lawe . for in westm . . ca. . it is ordeined , that an assise shall lie for a corodie . it is also apparent by the statute . anno . . & . h. . ca. . that corodies belonged some time to bishops from monasteries : & by the new termes of lawe , that a corodie may be due to a common person by graunt from one to another , or of common right , to him that is founder of a religious house , not holden in frank almoyn . for that tenure was a discharge of all corodies in it selfe . by which booke it appeareth also , that a corodie is either certaine or vncertaine , and that it may be for life , yeares , in taile , or in fee. corodio habendo , is a writ whereby to exact a corodie of any abbey or religious house . see corodie . see the register originall . fo . . coronatore eligendo , is a writte which after the death or discharge of any coroner , is directed to the shyreeue out of the chācery , to call togither the free holders of the countie , for the choice of a new coroner , to certifie into the chanceries both the election , and the name of the partie elected , and to giue him his oath . see westm . . ca. . and fitzh . nat . br . fo . . and the register orig . fo . . coroner ( coronator ) is an auncient officer of this land , so called , because he dealeth wholly for the king and crowne . there be fower of them commonly in euery countie , and they are chosen by the freeholders of the same vpon writ , and not made by leters patents . crompt . iurisd . fo . . this officer , though now he be some inferiour gentleman , that hath some smattering in the lawe : yet if we looke to the statute of westm . . ca. . we shall finde , that he was wont , and ought to be , a sufficient man : that is , the most wise and discreete knight , that best will and-may attend vpon such an office . yea there is a writ in the register , nisi sit miles . so . . b. whereby it appeareth , that it was fufficient cause to remooue a coroner chosen , if he were not a knight , and had not a hundred shillings rent of freehold . and the lord cheife iustice of the kings bench , is the soueraigne coroner of the whole realme in person . i. wheresoeuer he remaineth . libro assisarum . fo . . . coron . coke . li. . casu . de wardens , &c. of the sadlers . fo . . b. his office especially concerneth the plees of the crowne : but if you will reade at large , what aunciently belonged vnto him : reade bracton . li. . tra . . c. . de officio coronatorum circa homicidium . and ca. . de officio coronatoris in the sauris inventis . & ca. . de officio coronatorum in raptu virginium . and ca. . de officio coronatorum de pace & plagis . and britton in his first chapter , where he handleth it at large . fleta also in his first booke cap. . and andrew horns mirrour of iustices . li. . ca. del office del coroners . but more aptly for the present times , stawnf . pl. cor . li. . ca. . note there be certaine coroners speciall within diuers liberties , as well as these ordinarie officers in euerie countie : as the coroner of the verge , which is a certaine compas about the kings court . whome crompt . in his iurisd . fo . . calleth the coroner of the kings house : of whose authoritie see s. ed. cokes reportes . lib. . fo . . a. b. and i know certen charters belonging to colledges and other corporations , whereby they are licēsed to appoint their coroner within their owne precincts . farder of this office see also fitzh . nat . br . fo . . a. b. s. thomas smith . li. . ca. ca. . de repub . anglo . and lamb. eirenarcha . li. . ca. . pa. . and the office of the coroner in scotland . what it is , read m. iohn . skene de verbo . signifi . verbo . iter. corporation ( corporatio ) is that which the civile law calleth vniversitatem , or collegium . a bodie politique authorised by the kings charter , to haue a common seale , a head officer , one or more , and members able by their common consent , to graunt or to receiue in law any thing within the compas of their charter : euen as one man may doe by law all things , that by lawe he is not forbidden : and bindeth the successours , as a single man bindeth his executour or heyre . see brokes his abridgment . titulo corporation , and the newe tearmes of lawe . eodem . corpus cum causa , is a writ issuying out of the chauncerie , to remoue both the bodie and the record touching the cause of any man lying in execution , vpō a iudgement for debt into the kings bench , &c. there to lye vntill he haue satisfied the iudgement . fitzh . nat . br . fol. ● . e. corrector of the staple , is an officer or clerke belonging to the staple , that writeth and recordeth the bergains of merchants there made , anno . ed. . stat . . cap. . & . the romanes called them mensarios . corruption of blood , is an infection growing to the estate of a man attainted of felonie or treason , and to his issue . for as he leeseth all to the prince , or other lord of the fee , accordingly as his case is , so his issue cannot be heires to him , or to any other auncester , of whom they might haue claimed by him . and farder if he were noble , or a gentleman before , he and his children are made vnnoble and vngentle in respect of the father . newe tearmes of the lawe . corse present , are words borowed from the french , signifying a mortuarie . anno . h. . ca. . the true french is ( corps praesentè ) i. the bodie presented or tendered . the reason why the mortuarie is thus also tearmed , seemeth to be , for that where a mortuarie was wont to be due , the bodie of the best beast was according to the law or custome offered or presented to the priest . corselet , is a french word signifying a litle bodie , in latine ( corpusculum . ) it is vsed with vs , for an armor to couer the whole bodie , or trunke of a man. anno . & . ph. & mar. cap. . where with the pikemen , commonly set in the front and flanks of the battaile , are armed , for the beter resistance of the enemies assaults , and the surer guard of the gunners placed behind or within them , being more sleightly armed , for their speedier issuing in and out to discharge their peeces . see barrets discourse of warre . lib. . dialog . . cofenage , ( cognatione ) is a writ , that lyeth where the tresaile ( that is , tritavus , the father of the besaile , or of the great grandfather ) is seysed in his demesn as of see , at the day of his death , of certaine lands or tenements , and dyeth : and then a straunger entreth and abateth . for then shall his heyre haue this writ of cosenage : the forme whereof see in fitz. nat . br . fol. . of this also reade britton at large . cap. . cosening , is an offence vnnamed , whereby any thing is done guilefully in or out of contracts , which cannot be fitly termed by any speciall name . west . parte . . simbolaeogr . titulo . indictments . sect . . it is called stellionaius in the ciuile lawe of ( stellio ) the beast , which is lacertae genus virsutissimum , as cuiacius in his paratitles calleth it , and , quo nullum animal homini invidet fraudulentius . plinie li. . ca. . cotage ( cotagium ) is a house without land belonging vnto it . anno . . ed. pri . statut . primo . and the inhabitant of such a house is called a cotager . but by a later statute , no man may builde a cotage , but he must lay . acres of ground vnto it . . eli. ca. . cote , is a kind of resuse wolle clung or clotted together , that it cannot be pulled asunder . anno . . r. . stat . . ca. . it signifieth also as much as cotage in many places , as also it did among the saxons . verslegan in his restitut . of decayed intelligēce in antiquities . covenable ( rationabilis ) is a french word , signifying fitte or convenient , or suteable . covenably endowed anno . . h. . ca. . it is aunciently written ( convenable ) as in the stat . an . . ed. . stat . . ca. . couenāt , conuētio , is the consēt of two or more in one self thing , to doe or giue somwhat . west . part . . symbol . li. . sect . . it seemeth to be as much as ( pactum . conventum ) with the ciuilians . which you read often times in tullie . pactum conuentum , quod & vulgo vestitum vocant , opponitur nudo pacto , velut ab omni iuris solennitate destituto . huius exempla ponere difficile esse iason existimavit . conventum aiunt , quod vestitur , aut re , aut verbis , aut literis , aut contractus cohaerentiâ , aut rei interuentu . oldendorpius . and couenant in this signification , is either a covenant in lawe , or a couenant in fact . coke . lib. . nokes case . fo . . or couenant expresse & couenant in lawe . idem . li. . fo . . ae . couenant in law is that , which the law intendeth to be made , though in words it be not expressed : as if the lessour doe dimise and graunt , &c. to the leassee for a certaine tearme , the lawe intendeth a couenant of the lessours part , that the lessee shall , during his whole terme , quietly inioy his lease against all lawfull encumbrance . covenant in fact is that , which is expressely agreed betweene the parties . there is also a couenant meerely personall , and a couenant reall . fitz. nat . br . fo . . and he seemeth to say , that a couenant reall is , whereby a man tieth himselfe to passe a thing reall , as land or tenements , as a couenant to levie a fyne of land , &c. a couenant meerely personall of the other side , is where a man couenanteth with another by deede , to build him a house , or any other thing , or to serue him , or to infeoffe him &c. couenant is also the name of a writ , for the which see conuentione . instruments of couenants you may see good store in west parte . i. symbolaeog . li. . sectio . . see also the new booke of entries . verbo . couenant . couent , ( conuentus ) signifieth the society or fraternity of an abbie or priorie , as ( societas ) signifieth the number of fellowes in a colledge . bracton . li. . ca. . it commeth of the french ( conuent . i. coenobium ) . couerture , is a french word signifying any thing that couereth , as apparell , a couerlet , &c. and deduced from the verb ( couvrer . i. tegere ) it is particularly applied in our common lawe , to the estate and condition of a maried woman , who by the lawes of our realme , is in ( potestate viri ) and therefore disabled to contract with any , to the preiudice of her selfe or her husband , without his consent and priuity ; or at the least , without his allowance and confirmation . broke . hoc tit . per totum . and bracton saith , that omnia quae sunt vxoris , sunt ipsius viri , nec habet vxor potestatem sui , sed vir . li. . ca. . and that ( vir est caput mulieris ) li. . ca. . and againe , that in any law mater , sine viro respondere non potest . li. . tract . . ca. . and tract . . ca. . eiusdem libri . he hath words to this effect : vir & vxor sunt quasi vnica persona : quia caro vna & sanguis vnus . res licet sit propria vxoris , vir tamen eius custos , cùm sit caput mulieris . and li. . ca. . nu . . vxores sunt sub virga viri . and if the husband alienate the wifes land , during the mariage , shee cannot gainesay it during his life . see cui ante diuortium . and cui in vita . covine , ( covina ) is a deceitfull assent or agreement betweene two or more , to the preiudice or hurt of another . new tearms of lawe . it commeth of the french verb ( conuenancer . i. depacisci . ) or rather ( conuenir . i. conuenire . ) cowcher , signifieth a factour that continueth in some place or country for trafique . anno . . ed. . ca. . it is vsed also for the generall booke , into which any corporation entreth their particular acts for a perpetuall remembrance of them . counte , cōmeth of the french ( coumpte . i. subductus , cōputatio , ratio ) or of ( cōte . i. narratio . ) it signifieth as much as the originall declaratiō in a proces , though more vsed in reall actions then personall , as declaration is rather applied to personall then reall . fitzh . nat . br . fo . . a. . d. n. . a. . e. . a. ( libellus ) with the ciuilians comprehendeth both . and yet count and declaration be confounded sometimes ; as count in debt . kitchin : fo . . count or declaration in appeale . pl. cor . fo . . count in trefpasse . britton . cap. count in an action of trespasse vpon the case for a slaunder . kit. fol. . this word seemeth to come from france & normandy . for in the grand custumarie , c. . i find ( conteurs ) to be those , which a man setteth to speake for him in court , as aduocates : & cap. . ( pledeurs ) to be another sort of spokes men , in the nature of atturneys , for one , that is him selfe present , but suffereth another to tell his tale . where also in the . chapter , atturney is said to be he , that dealeth for him that is absent . see this text and glosse vpō those . chapters . countours ( by horn in his myrror of iustices . li. . ca. des loyers ) are sergeants skilfull in the lawe of the realme , which serue the cōmon people , to pronounce and defend their actions in iudgement for their fee , when occasiō requireth : whose duty , if it be as it is there described , and were obserued , men might haue much more comfort of the lawe then they haue . countenance , seemeth to be vsed for credit or estimation , old na . br . fol. . in these words : also the attaint shall be graunted to poore men that will sweare , that they haue nothing whereof they may make fine , sauing their countenance , or to other by a reasonable fine . so is it vsed , anno . ed. . stat . . cap. . in these words : shyreeues shall charge the kings depters with as much as they may leuie with their oathes , without abating the depters countenance . cownter ( computatorium ) feemeth to come of the latin ( computare ) or the french ( counter . ) for we vse it for the name of a prisō , wherinto he that once slippeth , is like to accompt ere he get out . counter plee , is compounded of two french words ( contre . i. contra , adversus ) and ( pleder . i. causam agere . ) it signifieth properly in our common lawe , a replication to ( ayde prier . ) for when the tenent by courtesie , or in dower , prayeth in ayde of the king , or him in the reuersion , for his beter defence : or else if a stranger to the action begun , defire to be receiued to say what he can for the safegard of his estate : that which the demandant alledgeth against this request , why it shuold not be admitted , is called a counter plee . see broke 〈…〉 t. and in this signification it is vsed . anno . . ed. . st at . . cap. . see also the new termes of the law , and the statute anno . ed. . cap. . county , ( comitatus ) signifieth as much as ( shire , ) the one descending from the french , the other from the saxons , both conteining a circuit or portion of the realme , into the which the whole land is diuided , for the beter gouernment thereof , and the more easie administration of iustice . so that there is no part of the kingdome , that lieth not within some countie , and euery county is gouerned by a yerely officer , whom we cal a shyreeue , which among other duties belonging to his office , putteth in execution all the commandements & iudgments of the kings courts , that are to be executed within that compasse . fortescue cap. . of these counties there be foure of especiall marke , which therefore are tearmed countie palatines , as the county palatine of lancaster , of chester , of durham , & of ely , ann . . eliz. . c. . i read also of the county palatine of hexam . an . h. . ca. . vnde quaere . and this county palatine is a iurisdiction of so high a nature , that whereas all plees touching the life or mayhem of man , called plees of the crowne , be ordinarily held & sped in the kings name , & cannot passe in the name of any other ; the chiefe gouerners of these , by especiall charter from the king , did heretofore send out all writs in their owne name , and did all things touching iustice , as absolutely as the prince himself in other counties , only acknowledging him their superiour and soueraigne . but by the statute . anno . h. . c. . this power is much a bridged , vnto the which i refer the reader , as also to crom. iuris . fo . . for the whole course of this court . besides these counties of both sorts , there be likewise counties corporate , as appeareth by the statute . anno . ed. . . and these be certaine cities , or auncient boroughs of the land , vpon which the princes of our nation haue thought good to bestow such extraordinary liberties . of these the famous city of london is one , and the principall , yorke another , an . . h. . cap. . the city of chester a third , an . . eliz. cap. . canterburie a fourth . lamb. eiren. l. . cap. . and to these may be added many moe : but i haue onely obserued out of the statutes & other writers , the county of the towne of kingston vpon hull , anno . h. . cap. . the county of the towne of havorford . west . anno . h. . cap. . and the county of litchfield . cromptons iustice of peace . fo . . a. county is in another significatiō vsed for the county court , which the shyreeue keepeth euery moneth within his charge either by himselfe or his deputie , anno . ed. ca. . cromptons iuris . fo . . bract. li. . c. . & li. . tract . . cap. . of these counties or shires one with another , there are reckoned in england . beside twelue in walet . 〈…〉 . the word ( comitatus ) is also vsed for a iurisdiction or territorie among the feudists . countie court ( curia comitatus ) by m. lamberd is otherwise called ( conuentus ) in his explication of saxon words , and diuided into two sorts : one retaining the generall name , as the county court held euery moneth by the shyreeue , or his deputie the vnder-shyreeue , whereof you may reade in cromptons iurisd . fol. . the other called the turne , held twice euery yeare , which see more at large in his place : and cromptons iurisd . fol. . this countie court had in auncient times the cognition of these and other great maters , as may appeare by glanvile . lib. . cap. . . by bracton and britton in diuers places , and by fleta . li. . cap. . but that was abridged by the statute of magna charta . cap. . and much more by . ed. . cap. vnico . it had also , and hath the determination of certaine trespasses , and debts vnder forty shillings . britton . cap . & . what maner of proceeding was of old vsed in this court , see fleta vbi supra . coursitour . see cursetour . court ( curia ) commeth of the french ( court ) which signifieth the kings palace or mansion , as ( curtis ) doth among the lombards . all these spring of the latine ( curia ) which signifieth one of thirty parts , into which romulus diuided the whole number of the romaines : sometime also the senate house , as appeareth by tully in his offices ( nihil est quod dignum nobis , aut in foro aut in curia agere possumus : which in his oration ( pro milone ) he calleth , templum sanctitatis , amplitudinis , mentis , consilii publici , caput vrbis , &c. court , with vs , signifieth diuersly : as the house where presently the king remaineth with his ordinarie retinue , and also the place where iustice is iudicially ministred : of which you finde . seueral sorts in m. cromptons booke of iurisdictions well described . and of them most be courts of record : some be not , and therefore are accompted base courts in comparison of the rest . beside these also there are courts christian . smith de repub . anglor . lib. . cap. . which are so called , because they handle maters especially appertaining to christianitie , and such as without good knowledge in diuinity cannot be well iudged of , being held heretofore by archb. and bishops , as from the pope of rome : because he chalenged the superioritie in all causes spirituall : but sithence his eiection , they hold them by the kings authoritie ( virtue magistratus sui ) as the admirall of england doth his court . whereupon it proceedeth , that they send out their precepts in their owne names , and not in the kings , as the iustices of the kings courts doe . and therefore as the appeale from these courts did lie to rome : now by the statute an . . h. . cap. . it lyeth to the king in his chauncerie . court baron ( curia baronis ) is a court that euery lord of a maner ( which in auncient times were called barons ) hath within his owne precincts . barons in other nations haue great territories and iurisdiction from their soueraignes : as may be proued out of cassanaeus de gloria mundi . parte . consideratio . . by vincentius de franchis descis . . and many others . but here in england what they be , and haue bene heretofore , see in baron . of this court baron you may reade your fill in kitchin , that writeth a large booke of it , and of a court leete . s. edward coke in his fourth booke of reports , amongst his copyhold cases . fol. . b. saith , that this court is two after a sort : and therefore if a man hauing a maner in a towne , and do graunt the inheritance or the copyholders thereunto belonging , vnto another : this grantee may keep a court for the custumarie tenents , and accept surrenders to the vse of others , and make both admittances and graunts : the other court is of freeholders , which is properly called the court baron , wherein the suyters , that is , the freeholders be iudges : whereas of the other the lord or his steward is iudge . court christian ( curia christiana ) see court. court of pypowders . see pypowders . court of requests ( curia requestarum ) is a court of equitie , of the same nature with the chancerie , principally instituted for the helpe of such petitioners , as in conscionable cases deale by supplication with his maiestie . this court , as m. gwin saith , in the preface to his readings , had beginning from commission first graunted by henry the . to the masters of requests : whereas before that time ( by his opinion ) they had no warrant of ordinary iurisdiction , but trauelled betweene the king and the petitioner by direction from the kings mouth . but sir iulius caesar in a tractate of his , painefully and very iudiciously gathered from the records of the same court , plainely sheweth that this court was . henrici septimi , though then following the king , and not setled in any certaine place , neither swayed particularly by the masters of requests , ( as now it is ) but more at large by others of the kings most honourable councell , whom he pleased to employ in this seruice . for pag. . of the said tractate , you haue the forme of the oath then ministred to those that were iudges in this court : and à pag. prim . vsque ad pag. . causes of diuers natures , which in the said kings dayes were there handled and adiudged . this court , as that right honorable and learned knight in a briefe of his vpon the same court plainely proueth , was and is parcell of the kings most honorable councell , and so alwaies called and esteemed . the iudges thereof were alwaies of the kings most honourable councell , appointed by the king to keepe his councell board . the keeping of this court was neuer tyed to any place certaine , but onely where the councell sate , the suyters were to attend . but now of late for the ease of suiters , it hath bene kept in the white hall at westminster , and onely in the tearme time . it is a court of record , wherein recognizances are also taken by the kings councell . the forme of proceeding in this court , was altogether according to the processe of summarie causes in the ciuile lawe . the persons plaintiffes and defendants , were alwaies either priviledged , as officers of the court , or their servants , or as the kings seruants , or as necessarie attendants of them : or else where the plaintiffes pouertie , or meane estate was not matchable with the wealth or greatnesse of the defendant : or where the cause meerely contained mater of equitie , and had no proper remedie at the common law : or where it was specially recommended from the king to the examination of his councell : or concerned vniuersities , colledges , hospitals , and the like . the causes wherwith they deale , and wherof they iudge , are of all sortes : as maritime , vltra marine , ecclesiasticall , temporall ; but properly temporall causes , and onely of the other sort , as they are mixt with temporal . the maner of proceeding in the said court , is first , by privie seale , leters missiue , or iniunction , or messenger , or bond . secondly , by attachement . thirdly , by proclamation of rebellion . fourthly , by commission of rebellion : fiftly , by sergeant at armes . the effect of the defendants apparence is , that he attend de die in diem on the councell , till he haue made his answer to the plaintiffes bill , and be licenced to depart vpon caution de iudicio sisti & indicato solvendo , and constitution of his atturney and councell by name . the authoritie of this court is such , as vppon cause to graunt iniunctions for barring the defendant from syewing the plaintiffe at the common lawe : and to stay the suyte at the common lawe before commencement , and not to arrest the bodie of the plaintiffe , till furder order be taken by the kings councell : and the execution of a decree in this court may be done , either by imprisonment of the person disobeying , being partie , or claiming vnder the partie : or by levie of the summe adiudged vppon his lands . courtesie of england ( lex angliae ) commeth of the french ( courtesie . i. benignitas , humanitas ) but with vs hath a proper signification , being vsed for a tenure . for if a man marie an inheretrice , that is , a woman seised of land in fee simple , or fee taile generall , or seised as heire of the taile speciall , and getteth a childe of her that commeth aliue into the world , though both it and his wife die forthwith , yet , if she were in possession , shall he keepe the land during his life , and is called tenent per legem angliae , or by the courtesie of england . glanvil . li. . ca. . bracton . li. . tracta . . ca. . nu . . . . britton . ca. . fo . . fleta . li. . ca. . § . lex quaedam . fitzh . nat . br . fo . . d. litleton . li. . ca. . it is called the law of england . westm . . ca. . this is in scotland called ( curialitas scotiae . skene de verbo . sign . verbo curialitas : who there saith that this is vsed in these two realmes onely , and maketh a large discourse of the custome . coutheutlaughe , is he that wittingly receiueth a man outlawed , and cheriseth or hideth him . in which case he was in auncient times subiect to the same punishment , that the outlawe himselfe was . bracton . li. . tracta . . ca. . nu . . it is compounded of ( couthe . i. knowne , acquainted , familiar , and ( vtlaughe ) an outlaw , as we now call him . courtilage , aliâs curtilage ( curtilagium , aliâs curtilegium ) signifieth a garden , a yard , or a feeld , or peece of voide ground lying ne ere and belonging to a mesuage , west . parte . . symbolaeo . titulo fines . sect . . and so is it vsed anno . . ed. i. ca. vnico . anno . . h. . ca. . & anno . . eliza . ca. . and coke vol. . fo . . a. of this also lindwood thus writeth . curtilegium vulgare nomen est , non omnium patriarum , sed certarum . est enim curtis mansio vel manerium ad habitandum cum terris , possessionibus , & aliis emolumentis ad tale manerium pertimentibus , prove satis colligitur in libro feudorum , titulo . de controuersia investiturae . § si quis de manso . coll. . vnde curtilegium dicitur locus adiunctus tali curti , vbi leguntur herbae vel olera : sic dictus a ( curtis ) & ( lego legis ) pro collig ere . thus farre linwood . titulo de decimis . ca. sancta . § . omnibus , verbo curtelegiorum . so that in effect , it is a yard or a garden adioyning to a house . creansour , ( creditor ) commeth of the french ( croyance . i. persuasio ) and signifieth him , that trusteth another with any debt , be it in mony or wares . old nat . br . fo . . cranage , ( cranagium ) is a liberty to vsea crane for the drawing vp of wares from the vessels , at any creek of the sea or wharfe , vnto the land , and to make profit of it . it signifieth also the mony paide and taken for the same . new booke of entries . 〈◊〉 . . col . . creeke , ( creca , crecca , vel crecum ) seemeth to be a part of a hauen , where any thing is landed or disburdened out of the sea . so that when you are out of the mayne sea within the hauen , looke how many landing places you haue , so many creeks may be said to belong to that hauen . see cromptons iurisdictions . fo . . a. this word is mencioned in the statute , as anno . el. ca. . and diuers others . creast tile . see roofe tile . croft , ( croftum ) is a litle close or pitle ioyning to a house , that sometimes is vsed for a hemp ground , sometime for corne , and sometime for pasture , as the owner listeth . it seemeth to come of the ould english word ( creaft ) signifiing handy craft : because such groundes are for the most part extraordinarily dressed and trimmed by the both labour and skill of the owner . croises , ( cruce signati ) be vsed by britton . ca. . for such as are pilgrimes : the reason may be , for that they weare the signe of the crosse vpon their garments . of these and their priuileges reade bracton . li. . parte . ca. . & parte . ca. . and the grand custumary of normandy ca. . vnder this word are also signified the knights of the order of saint iohn of ierusalem , created for the defence of pilgrims . grego . syntag. li. . ca. . & . cucking stoole , ( tumbrella ) is an engine inuented for the punishment of scolds and vnquiet women , called in auncient time a tumbrell . lamb. eirenarcha . li. . ca. . po . . in meo . bracton writeth this word ( tymborella . ) kitchin , where he saith , that euery one hauing view of erankpledge , ought to haue a pillorie and a tumbrell , seemeth by a tumbrell to meane the same thing . cap. charge in court leete . fol. . a. cuth , other vncuth ( privatus vel extraneus . ) these be old english words , not yet worne out of knowledge , for the which see roger hoveden . parte poster . suorum annalium . fol. . a. cudutlaghe . see conthutlaughe . cui ante divortium , is a writ , that a woman diuorced from her husband , hath to recover lands or tenements from him , to whome her husband did alienate them during the mariage : because during the mariage , she could not gainesay it . regist . ori . fol. . fitzh . nat . br . fol. . cuinage , is a word vsed for the making vp of tinne , into such fashion , as it is commonly framed into for the cariage thereof into other places , anno . h. . cap. . cui in vita , is a writ of entrie , that a widow hath against him , to whome her husband aliened her lands or tenements in his life time : which must containe in it , that during his life time , she could not withstand it . regist . orig . fol. . fitz. nat . br . fol. . see the newe booke of entries . ver ho. cut in vita . cuntey cuntey is a kind of triall , as appeareth by bracton in these words : negotium in hoc casu terminabitur per cuntye cuntey , sicut inter cohaeredes . bracton . lib. . tra . . cap. . and againe , in the same place : in brevi de recto negotium terminabitur per cuntey cuntey . and thirdly , lib. . tract . . cap. . terminabitur negotium per breve de recto : vbi nec duellum , nec magna assisa , sed per cuntey cuntey omnino : which in mine opinion is as much , as the ordinarie iurie . curfew , commeth of two french words , ( couvrir . i. tegere , ) and ( feu . i. ignis . ) we vse it for an euening peale , by the which the conquerour willed euery man to take warning for the raking vp of his fire , and the putting out of his light . so that in many places at this day , where a bell customably is rung toward bed time , it is said to ring curfew . stowes annals . curia avisare vult , is a deliberation , that the court purposeth to take , vpon any point or points of a cause , before iudgement be resolued on . for this , see the new booke of entries . verbo . curia avisare vult . curia claudenda , is a writ , that lyeth against him , who should fence and close vp his ground , if he refuse or deferre to doe it . register . orig . fo . . fitzh . nat . br . fo . . see also the newe booke of entrise . verbo . curia claudenda . cursiter ( clericus de cursu , vel cursista curiae cancellariae ) is an officer or clerke belonging to the chancerie , that maketh out originall writs . anno . & . h. . ca. . they be called clerks of course in the oathe of the clerks of the chancerie appointed anno . ed. . stat . . ca. vnico . there be of these ● . in number , which haue allotted vnto every of them certaine shires , into the which they make out such originall writs , as are by the subiect required , and are a corporation among themselues . curteyn ( curtana ) was the name of king edward the sainct his sword , which is the first sword , that is caried before the kings of this land at their cotonation . mathaeus parisiensan henrico tertio . and i haue heard say , that the point thereof is broken : which may argue an embleme of mercie . curtilage . see courtelage . custode admittendo , & custode amouendo , are writs for the admitting or remouing of gardians . register . original . in indice . custom ( consuctudo ) is all one in signification with our common lawyers and civilians , being by them both accounted a part of the lawe . consuetudo quandoque pro lege seruatur ( faith bracton ) in partibus vbi fuerit more vtentium approbata . longaevi enim temporis vsus & consuetudinis non est vilis authoritas . li. . ca. . it may be thus not vnaptly defined : custom is a lawe . or right not written , which being established by long vse and the consent of our awncesters , hath beene and is daily practised : our awncesters , that is ( maiores , ) and those of our kindred that are vltra tritavum . li. . § . parentem . Π. de in ius vocando . l. vlt. § . parentes . Π. de gradibus & affini . & nominibus eorum . so that allowing the father to be so much owlder then his sonne , as ( pubertas ) or the years of generation doe require , the grandfather so much elder then him , and soe forth vsque ad tritavum : we cannot say that this or that is a custom , except we can iustifie , that it hath continued so one hundred yeares . for tritavus must be so much elder then the party that pleadeth it : yet because that is hard to proone : it is enough for the profe of a custom by witnesses in the common lawe ( as i haue credibly heard ) if two or more can depose , that they heard their fathers say , that it was a custome all their time , and that their fathers heard their fathers also say , that it was likewise a custome in their time . if it be to be prooved by record , the continuance of a hundred yeares will serue . custom is either generall or particular : generall i call that , which is current thorough england : whereof you shall read diuers in the doctor and student . li. pri . ca. . very worthy to be knowne . particular is that , which belongeth to this or that countie , as gavelkind to kent , or to this or that lordship , citie , or towne . custom differeth from prescription , for that custom is common to more , and prescription ( in some mens opnion ) is particular to this or that man. againe , prescription may be for a farre shorter time then a custom , viz. for fiue yeare , or for one yeare , or lesse . example of fiue yeares prescription you haue in the levying of a fine . for if a fine duly levied of lands & tenements be not impugned within fiue yeres , it excludeth all claime for euer . and if a man omit his continuall claime for a yeere and a day : then the tenent in possession prescribeth an immunity against the entrie of the demandant and his heyre . fitzh . nat . br . fo . . terms of the law , verbo . continuall clayme . out of our statutes you may haue greater diuersitie , which see collected in mine institutes . titulo de vsucapio : & longi tempo . praescript . so that brissonius in his . de verbo fignif . seemeth to say truly , that prescription is an exception founded vpon so long time runne and past , as the lawe limiteth for the pursuite of any action . an example may be taken from those statutes . anno . . h. . ca. . which inacteth , that in all actions populer , information shall be made within three yeares after the offence committed , or els be of no force . of like nature is the statute . anno . h. . ca. . which in some cases maketh one yeeres prescription sufficient against informations . custome is also vsed for the tribute or tolle , that merchans pay to the king for carying in and out merchandise . anno . ed. . stat . . ca. . in which signification it is latined ( custuma ) register . orig . fo . . a. . a. and lastly for such seruices , as tenents of a maner owe vnto their lord . new booke of entries , verbo custome . customary tenents , ( tenentes per consuetudmem ) are such tenents , as hould by the custome of the maner , as their especiall euidence , see copihoulds . custos breuium , is the principall clerk belonging to the court of common plees : whose office is to receiue and keepe all the writs , and put them vpon files , euery returne by it selfe , and at the end of euery terme to receiue of the protonotaries all the records of ( nisiprius ) called the ( postea ) for they are first brought in by the clerk of assise of euery circuit to the protonotarie that entred the issue in that mater , for the entring of the iudgement . and then doe the protonotaries get of the court peremptory day , for euery party to speake what he hath to alleage in arrest of iudgement : which day being past , he entreth the verdict and iudgement thereupon into the rols of the court : and that done , he doth in the end of the tearme deliuer ouer to the custos breuium , all the records of ( nisi prius ) which came to his hand that terme : which receiued he bindeth into a bundle and bestoweth them . the custos breuium also maketh entry of the writs of couenant , and the concord vpon euery fine : and maketh forth exemplifications and copies of all writs and records in his office , and of all fines leuied . the fines after they be ingrossed , the parts therof are diuided betwen the custos breuium and the chirogropher : whereof the chirogropher keepeth alwaies with him the writ of couenant and the note , the custos breuium keepeth the concord and the foote of the fine , vpon the which foote the chirographer doth cause the proclamations to be indorsed , when they be all proclaymed . this office is in the princes gift . custos placitorum coronae . bracton . li. . ca. . this seemeth to be all one with him , whome we nowe call ( custos rotulorum ) of this officer i finde mention in the writ ( odio & atia ) register . original . fo . . b. custos rotulorum , is he , that hath the custodie of the rols or records of the sessions of peace : and ( as some thinke ) of the commission of the peace it selfe . lamb. eirenarch . li. . ca. pa. . . he is alway a iustice of peace and quorum , in the countie where he hath his office . idem . eodem . and by his office he is rather termed an officer or minister then a iudge : because the commission of the peace layethe , by expresse words this especiall charge vpon him : quòd ad dies & locapraedicta , breuia , praecepta , processus , & indictamenta praedicta coramte & dictis sociis tuis venire facias . idem . eodem . where read a competent tract of other things belonging to this office . custos of the spiritualties ( custos spiritualitatis vel spiritualium ) is he that exerciseth the spirituall or ecclesiasticall iurisdiction of any dioces , during the vacancie of the see : the appointment of whome by the canon lawe apperteineth to the deane and chapter . ca. ad abolendam , extra . ne sede vacante aliquid innovetur . but with vs in england to the archbishop of the province by prescription . how be it divers deanes and chapters ( if m. gwin say truly in the preface to his readings ) doe chalenge this by awncient charters from the kings of this land . cutter of the talyes , is an officer in the exchequer , that provideth wood for the talyes , and cutteth the summe paid vpon them , and then casteth the same into the court to be written vpon . da dammage , commeth of the french ( dam ) or ( domage ) signifiing generally any hurt or hinderance , that a man taketh in his estate : but in the common lawe , it particularly signifieth a part of that the iurours be to inquire of , passing for the plaintiffe or demandant in a ciuile action , be it personall or reall . for after verdict giuen of the principall cause , they are likewise asked their consciences touching costs ( which be the charges of suite , called of the civilians ( expensae litis ) and dammages , which conteine the hindrance that the plaintiffe or demandant hath suffered by meanes of the wrong done to him by the defendant or tenent . dane guilt , danegold , or danegelt ( danegeldum ) is compounded of ( dane and gelt . i. pecunia ) and was a tribute laide vpon our ancesters of . pence for euerie hide of land through the realme by the danes , that once got the masterie of vs , in regard ( as they pretended ) of clearing the sease of pyrates , which greatly annoyed our land in those daies . cambd. brittan . . with whome agree the lawes of edward set out by m. lamberd . ca. . stowe in his annals , pa. . saith , that this tribute came to . pownds by the yeare , and that it was released by edw. the confessour . the author of the newe terms of law saith , that this tribute began in the time of king etheldred , who being sore distressed by the continuall inuasion of the dane , to procure his peace , was compelled to charge his people with importable payments . for first he gaue them at fiue severall paiments . poundes , and afterward graunted them . poundes yeerely . see roger houeden parte . poster . suorum annalium in henrico secundo . fo . . a. dareyn continuance , see continuance . darein is a corrupt word of the french ( dernier . i. vltimu● . ) darrein presentment ( vltima praesentatio . ) see assise or darreyn presentment . dates ( dactyli ) is the plumme or fruite of the tree in latine called palma , in english the date tree well knowne to most men by sight . and he that will farder vnderstand the nature or diuersities of this fruite , may repaire to gerards herball . li. . ca. . they be numbred among spices and drugs to be garbleled . . iaco. . day ( dies ) is sometime vsed in the lawe , for the day of appearance in court , either originally , or vpon assignation ; and sometime for the returnes of writs . for example , daies in bank , be daies set downe by statute or order of the court , when writs shall be returned , or when the partie shall appeare vpon the writ serued . and of this you may read the statutes , anno . h. . ca. . & . marlb . ca. . anno . . h. . and the statute de anno bissextili . anno . h. . and lastly anno . h. . ca. . to be dismissed with out day , is to be finally discharged the court . kitchin . fo . . he had a day by the rolle . kitchin. fo . . that is , he had a day of appearance assigned him . day , yeere , and waste . sea dies , and yeare . deadly feude ( feuda ) is a profession of an vnquencheable hatred , vntill we be reuenged , euen by the death of our enemie . it is deduced from the german word ( feed ) which , as hotoman saith , in verbis feudalibus , modo bellum , modo capitales inimicitias significat . this word is vsed . anno . . eliz. cap. . dead pledge ( mortuum vadium ) see mort gage . deane , ( decanus ) is an ecclesiasticall magistrate , so called of the greeke ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) because he hath power ouer ten canons at the least . how be it in england we vse to call him a deane , that is next vnder the bishop , and cheife of the chapter ordinarily in a cathedrall church : and the rest of the societie or corporation we call capitulum , the chapter . but this word how diuersly it is vsed , read lindwood . titulo de iudiciis ca. pri . verbo decanirurales . where deane rurals are saide to be certaine persons that haue certaine jurisdiction ecclesiasticall ouer other ministers and parishes neere adioyning , assigned vnto them by the bishop and archdeacon , being placed & displaced by them . as there be two foundations of cathedrall churches in england , the old , & the new ( the new bethose which henry the . vpon suppression of abbeyes transformed from abbot or prior & couēt to deane and chapter ) so be there two meanes of creating these deanes . for these of the old foundation , are brought to their dignitie much like bishops : the king first sēding out his congè d' eslire to the chapter , the chapter then chusing , the king yeelding his royal assēt , and the bishop confirming him , and giuing his mandate to installe him . those of the newe foundation are by a shorter course installed by vertue of the kings leters patents , without either election or confirmation . this word is also applyed to diuers , that are the chiefe of certaine peculiar churches , or chapels , as the deane of the kings chapell , the deane of the arches , the deane of saint george his chapell in windsour , the deane of bockin in essex . debet & solet : these words are diuers times vsed in the writers of the common lawe , and may trouble the minde of a young student , except he haue some aduertisement of them . for example , it is saide in the old . nat . br . fo . . this writ ( de secta molendini ) being in the ( debet ) and ( solet ) is a writ of right , &c. and againe . fo . . a writ of quod permittat ) may be pleaded in the countie before the shyreeue , and it may be in the ( debet ) and in the ( solet ) or the ( debet ) with out the ( solet ) according as the demandāt claymeth . wherfore note , that those writs that be in this sort brought , haue these words in them , as formall words not to be omitted . and according to the diuersity of the case , both ( debet ) and ( solet ) are vsed , or ( debet ) alone : that is , if a man siew to recouer any right by a writ , whereof his awncester was disseised by the tenent or his awncester , then he vseth onely the word ( debet ) in his writ : because ( solet ) is not fit by reason his awncester was disseised , and the custome discontinued : but if he siew for any thing , that is now first of all denied him , then he vseth both these words ( debet & so'et ) because his awneesters before him , and he him selfe vsually imoyed the thing siewed for : as suite to a mille , or common of pasture vntill this present refusall of the tenent . the like may be saide of ( debet ) and ( detinet ) as appeareth by the register . orig . in the writ de debito . fo . s . a. debito , is a writ which lieth , where a man oweth to another a certaine summe of mony-vpō an obligation or other bargain , for any thing sold vnto him . fitz. nat br . fo . . this writ is made somtime in the detinet , & not in the debet . which properly falleth out , where a man oweth an annuitie : or a certaine quantity of wheat , barley , or such like , which he refuseth to pay . old . nat . br . fo . . see debet & solet . denelage ( denelagia ) is the law that the danes made heere in england , out of which and merchenlage , and west sexonlage , the conquerour compounded certaine ordinances for his subiects . camdeni britan. pa. . & pa. . decem tales . see tales . decies tantum , is a writ that lieth a gainst a iurour , which hath taken mony for the giuing of his verdict , called so of the effect , because it is to , recouer ten times so much as he tooke . it lieth also against embracers that procure such an enquest . anno . ed. . ca. . reg. orig . fo . . fitzh . nat . br . fo . . new booke of entrise . verbo decies tantum . deceyte ( déceptio fraus , dolus ) is a subtile wilie shift or deuiso , hauing noe other name . hereunto may be drawen all maner of craft , subtiltie , guile , fraude , wilynes , slightnes , cunning , couin , collusion , practise , and offence , vsed to deceiue another man by any means , which hath none other proper or particular name , but offence . west parte . . symbol . titulo . indictments . sect . . see cosening . decenniers . see deciners . deceptione , is a writ that lieth properly against him , that deceitfully doth any thing in the name of another , for one that receiueth harme or dāmage therby . fuzh. nat . br . fo . . this writ is either originall or iudiciall , as appeareth by the old . nat . br . fo . . where you may reade the vse of both . for some satisfaction , take these words of that booke : this writ of deceit , when it is original , then it lieth in case , where deceit is made to a man by another , by which deceit he may be disherited , or otherwise euill intreated : as it appeareth by the register , &c. and when it is iudiciall , then it lieth out of the rols of record : as in case where ( scire facias ) is sent to the shyreeue , that he warme a man to be before the iustices at a certaine day , and the shyreeue returne the writ serued ; whereas the said man was not warned , by which 〈◊〉 partie that sieweth tho ( scire 〈…〉 as ) recouereth , then the party which ought to haue beene warned , shall haue the saide writ against the shyreeue . the author of the termes of lawe . verbo deceite , saith that the originall writ of deceite lieth , where any deceit is done to a man by another , so that he hath not sufficiently performed his bargaine or promise , in the writ iudicial he concurreth with the former booke . see the reg. orig . fo . . and the reg. iudiciall in the table . verbo . deceptione . decimis solvendis pro possessionibus alienigenarum , is a writ or leters patents , yet extant in the register , which laye against those , that had fermed the priors aliens lands of the king , for the rector of the parish , to recouer his tythe of them . regi . orig . fol. . deciners , aliâs , desiners , aliâs , doziners , ( decennarii ) commeth of the french , ( dizeine . i. decas ) tenne in number , or else of ( disenier . i. decearchus . ) it signifieth , in the auncient monuments of our lawe , such as were wont to haue the ouersight and checke of ten friburgs , for the maintenance of the kings peace . and the limits or compasse of their iurisdiction was called ( decenna ) bracton lib. . tract . . cap. . of whom you may also reade , fleta lib. . cap. and a touch in the regist . orig . fol. . b. these seemed to haue la 〈…〉 authoritie in the saxons time , 〈◊〉 king knowledge of causes within their circuite , and redressing wrongs by way of iudgement , as you may reade in the lawes of king edward , set out by m. lambard . num . . in later times i find mention of these , as in britton cap. . who saith in the kings person ( as he writeth his whole booke ) in this maner : we will , that all those which be . yeares old , shall make oath , that they shall be sufficient and loyall vnto vs , and that they will be neither felons , nor assenting to felons : and we will , that all be ( en dozeine & plevis per dozeniers ) that is , professe themselues to be of this or that dozein , and make or offer suretie of their behauiour by these or those doziniers : except religious persons , clerks , knights , and their eldest sonnes , and women . yet the same author in his . chapter , some thing toward the end , doth say , that all of . yeares old and vpward , are punishable for not comming to the turne of the shyreeue , except earles , prelats , barons , religious persons , and women . stawnf . pl. cor . fol. . out of fitzh . hath these wordes : the like lawe is , where the dozeniers make presentment , that a felon is taken for felonie , and deliuered to the shyreeue , &c. and kitchin , out of the register , and britton , saith thus . religious persons , clerkes , knights , or women shall not be deceniers . fol. . so that hereby i gather , that of later times , this word signifieth nothing but such an one , as by his oath of loyaltie to his prince , ( for suretie none ordinarily findeth at these dayes ) is setled in the combination or societie of a dozein . and a dozein seemeth now to extend so farre , as euery leete extendeth : because in leetes onely this oathe is ministred by the steward , and taken by such as are twelue yeares old and vpwards , dwelling within the compasse of the leete where they are sworne . fitz. nat . br . fol. . a. the particulars of this oath you may reade in bracton . lib. . tract . . cap. . num . . in these words : quibus propositis ( that is , the commission of the iustices being read , and the cause of their comming being shewed ) debent iusticiarii se transferre in aliquem locum secretum , & vocatis ad se quatuor vel sex , vel pluribus de maioribus de comitatu , qui dicuntur busones comitatus , & ad quorum nutum dependent vota aliorum , et sic inter se tractatum habeant iusticiarii ad muicem , & ostendant qualiter a domino rege & eius concilio . prouisum sit , quod omnes tam milites , qùam alii qui sunt quindecim annorum & ampliùs , iurare debent , qùod vtlagatos , murditores , robbatores , & burglatores non receptabunt , neceis consentient , nec eorum receptatoribus , & si quos tales nouerint , illos attachiari facient , & hoc vicecomiti & baliuis suis monstrabunt : & si hutesium vel clameum de talibus audiverint , statim audsto clamore , sequantur cum familia & hominibus de terra sua . here bracton setteth downe . yeares , for the age of those that are sworne to the kings peace , but lib. . tract . . cap. . num . . he nameth . yeares . see inlaughe . a man may note out of the premisses , diuersities betweene the auncient and these our times , in this point of law and gouernement , as well for the age of those that are to be sworne , as also that decennier is not now vsed for the chief man of a dozen , but for him him that is sworne to the kings peace : and lastly , that now there are no other dozens but leetes , and that no man ordinarily giueth other security for the keeping of the kings peace , but his owne oathe : and that therefore none aunswereth for anothers transgression , but euery man for himselfe . and for the general ground this may suffice . see frankepledge . declaration ( declaratio ) is properly the shewing foorth , or laying out of an action personall in any suite , howbeit it is vsed sometime and indifferently for both personall and reall actions . for example , anno . ed. . c. . in these words : by the auncient termes and formes of declarations , no man shall be preiudiced : so that the mater of the action be fully shewed in the demonstration & in the writ : see the new termes of lawe . see cownte . dedimus potestatem , is a writ , whereby commission is giuen to a priuate man for the speeding of some act appertaining to a iudge . the civilians call it ( delegationem ) and it is graunted most commonly vpon suggestiō , that the partie , which is to doe something before a iudge , or in court , is so feeble , that he cannot trauell . it is vsed in diuers cases : as to make a personall aunswer to a bill of complaint in the chaunceric , to make an atturney for the following of a suite in the countie , hundred , wapentake , &c. oldnat . br . fol. . to levie a fine . west . part . . symbol . titulo . fines . sect . . and diuers other effects , as you may see by fitzh . nat . br . in diuers places noted in the index of the booke : in what diuersitie of cases this writ or commission is vsed , see the table of the regist . orig . verbo dedimus potestatem . deedes , ( facta ) signifie in our commō law wrighungs that containe the effect of a contract made betweene man and man , which the ciuilians call ( literarum obligationem ) . and of deeds there be two sorts , deeds indented and deeds poll . which diuision , as m. west . saith parte . i. simbol : lib. . sect . . groweth from the forme or fashion of them ; the one being cut to the fashion of teeth in the toppe or side the other being plaine . and the definition of a deede indented he expresseth thus sect. . a deed iudented , is a deede consisting of two partes or more , in which it is expressed , that the parties to the same deede , haue to euery parte thereof interchangeabely , or seuerally set there seuerall seales . see the rest , where at the last he sheweth : the cause of the name : viz : for that consisting of more partes , eche parte is indented or cut one of them into the other , that by the cut it may appeare , they belonge to one busines or contract . a deede poll or polled he describeth thus : sect. . q. a polled deede , is a deede testifying , that onely the one of the parties to the bargaine , hath put his seale ; thereunto after the maner there by him described : which reade for your beter vnderstanding . see the newe tearmes of lawe , verbo fait , where he sheweth , that each deed consisteth of . points : writing , sealing , and deliuerie . deere hayse . anno . h. . cap. . seemeth to be an engine . of cords , to catch deere . de essendo quieium de relovio , is a writ that lyeth for them which are by priuiledge freed from the payment of tolle , which reade at large in fitzh . nat . br . fol. . defalt ( defalta ) commeth from the french ( defaut ) and is an offence in omitting that , which we ought to doe . west . part . . symbol . titulo . indictment . sect . . of this hath bracton a whole tractats , lib. . tractat . . by whome it appeareth that a default is most notoriously taken for non appearance in court , at a day assigned . of this you may reade also in fleta . lib. . cap. . defeisance ( defeisantia ) commeth of the french ( desfaire ) or deffaire ) i. infectum reddere quod factumest , and signifieth in our common lawe , nothing but a condition annexed to an act , as to an obligation , a recognizance or statute , which performed by the obligee or recognizee , the act is disabled and made voide , as if it neuer had bene done , whereof you may see west at large , part . . symb . li. . sect . . defendant ( defendens ) is he that is siewed in an action personall : as tenent , is he which is siewed in an action reall . tearmes of the lawe . defendemus , is an ordinarie word in a feofment or donation , and hath this force , that it bindeth the donour and his heyres , to defend the donee , if any man goe about to laye anie seruitude vpon the thing giuen , other then is contained in the donation . bract. lib. . cap. . num . . see also warrantizabimus & acquietabimus . defender of the faith ( defensor fides ) is a peculiar title giuen to the king of england by the pope , as ( catholicus ) to the king of spaine , and christianissimus to the french king . it was first giuen by leo decimus to king henry the . for writing against martin luther , in the behalfe of the church of rome , then accounted domicilium fidei caholicae . stowes annals . pag. . deforsour , ( deforciator ) commeth of the french ( for ceur . i. expugnator ) . it is vsed , in our common law , for one that ouercommeth and casteth out by force , and differeth from disseisour first in this , because a man may disseise another without force , which act is called simple disseisin . britton . ca. . next , because a man may deforce another , that neuer was in possession : as for example : if more haue right to lands , as commō heires and one entring keepeth out the rest , the law saith , that he deforceth them , though he doe not disseise them . old nat : br : fol : . and litleton in his chapter ( discontinuance ) fol. . faith , that he which is infeoffed by the tenent in taile , and put in possession , by keeping out the heire of him in reuersion being dead , doth deforce him , though he did not disseise him ; because he entred , when the tenent in taile was liuing , and the heire had noe present right . and a deforsour differreth from an intrudour , because a man is made an intrudour by a wrongfull entry only into land or tenement voide of a possessour . bracton li : : ca : pri . and a deforsour is also by houlding out the right heire , as is abouesaide . deliuerance , see repligiare . demaund , ( demanda vel demandum ) commeth of the french ( demande . i. postulatio , postulatus ) and signifieth a calling vpon a man for anything due . it hath likewise a proper signification with the common lawyers opposite to plaint . for the pursiute of all ciuill actions are either demaunds or plaints : and the persyewer is called demaundant or plaintife : viz : demandaundant in actions reall , and plaintife in personall . and where the party persiewing is called demaundāt , there the party persiewed is called tenent : where plaintife , there defendant . see terms of law , verbo demaundant . demy haque , see haque , and haquebut . demaine , ( dominicum ) is a french word , otherwise written ( domaine ) and signifieth ( patrimonium domini ) as hotoman saith in verbis feudalibus . verbo dominicum . where by diuers authorities he proueth those lands to be dominicum , which a man holdeth originally of himselfe , and those to be feodum , which he holdeth by the benefite of a superiour lord. and i find in the ciuill law ( rem dominicam ) for that which is proper to the emperour . cod. ne rei dominicae vel templorum vindicatio temporis praescriptione submoueatur , being the . title of the . booke . and ( res dominici iuris . i. reipub . in the same place . and by the word ( domanium ) or ( demanium ) are properly signified the kings lands in fraunce , appertaining to him in propertie , quia domanium definitur illud , quod nominatim consecratum est , vnitum , & incorporatum regiae coronae , vt scripsit chopinus de domanio franciae tit . . per legem . siquando . cod. de bon . vacan . lib. . & mathaeus de afflict is in constit . siciliae li. . tit . de locatione demanii . . which may be called bona incorporata & in corpus sisci redacta . skene de verborum signif . verb. terrae dominicales . in like maner doe we vse it in england : howbeit , we here haue no land ( the crowne land onely excepted ) which holdeth not of a superior . for all dependeth either mediatly or immediately of the crowne , that is , of some honour or other belonging to the crowne , and not graunted in fee to any inferior person . wherefore no common person hath any demaynes , simply vnderstood . for when a man in pleading would signifie his land to be his owne , he saith , that he is or was seised thereof in his demaine as of fee. litleton li. . cap. . whereby he signifieth , that though his land be to him and his heyres for euer , yet it is not true demaine , but depending vpon a superior lord , and holding by seruice , or rent in liewe of seruice , or by both seruice and rent : yet i find these words vsed in the kings right , anno . h. . cap. . and . eliz. cap. . but the application of this speech to the king and crowne land , is crept in by errour and ignorance of the word ( fee , ) or at least by vnderstanding it otherwise then of the feudists it is taken . but britton . cap. . sheweth , that this word ( demeyne ) is diuersly taken : sometime more largely , as of lands or tenements held for life , &c. and sometime more strictly as for such onely as are generally held in fee. this word somtime is vsed for a distinction between those lands , that the lord of a maner hath in his owne hands , or in the hands of his leasec , dimised vpon a rent for tearme of yeares or life , and such other lād appertaining to the said maner , which belongeth to free or copy-houlders . howbeit , the copyhold belonging to any maner , is also in the opiniō of many good lawyers accounted demeines . bracton in his fourth booke tract . . ca. . nu . . hath these words : item dominicum accipitur multipliciter . est autē dominicum quod quis habet admensam suam & propriè , sicut sunt bordlands anglie . item dicitur dominicum villenagium , quod traditur villanis , quod quis tempestiuè & intempestiue resumere possit pro voluntate sua , & reuocare . of this fleta likewise thus writeth : dominicum est multiplex . est autem dominicum propriè terra admensam assignata , & villenagium quod traditur villanis ad excolendum , & terra precariò dimissa , quae tempestiuè & pro voluntate domini poterit reuocari : & sicut est de terra commissa , tenenda quam diu commissori placuerit . poterit & dici dominicum , de quo quis habet liberum tenementum , & alius vsumfructum : & etiam vbiquis habet liberum tenementum , & alius curam , sicut de custode dicipoter it & curatore ; & vnde vnus dicitur a iure , alius quoque ab homine . dominicum etiam dicitur ad differentiam eius quod tenetur in seruitio . dominicum est omne illud tenementum , de quo antecessor obiit seisitus vt de feudo , nec refert cum vsufructu vel sine , & de quo si eiect us esset , si viueret , recuperare posset per assissam nomine disseisina , licet alius haberet vsum fructum : sicut dici poterit de illis qui tenent in villenagio , qui vtuntur , fruuntur non nomine proprio sed nomine domini sui . fleta : l. . c : . § . dominicū autē . and the reasō why copyhold is accoūted demeanes , is because they that be tenents vnto it , are iudged , in law , to haue nor other right , but at the will of the lord . soe that it is reputed still after a sort to be in the lords hands . and yet in common speach , that is called ordinarily demeanes , which is neither free nor copy . it is farder to be noted , that demaine is sometime vsed in a more speciall signification , and is opposite to franck fee. for example , those lands , which were in the possession of king edward the confessor , are called auncient demaine , & all others be called franck fee. kitchin. fol : . and the tenents which hould any of those lands , be called tenents in auncient demaine , the others tenents in franck fee. kitchin vbi supra . and also tenents at the common lawe . west . parte . simbol : titulo fines . sect . the reason is , because tenents in auncient demaine , cannot be syewed out of the lords court : tearmes of the lawe . verbo auncient demaine . and the tenents in aunciēt demaine , though they hould all by the verge , and haue none other euidēce but copy of court rolle , yet they are saide to haue free hould . kitchin. fol. . see awncient demaine . demayne cart of an abbot , seemeth to bee that cart , which the abbot vseth vpon his owe demaine : anno. . h. . cap. . demurrer ( demorare ) commeth of the french ( demeurer . i. manere in aliquo loco vel morari ) it signifieth in our common lawe , a kinde of pawse vpon a pointe of difficultie in any action , and is vsed substantiuely . for in euery action , the controversie consisteth either in the fact , or in the lawe , if in the fact , that is tried by the iurie , if in lawe , then is the case plaine to the iudge , or so hard and rare , as it breedeth iust doubt . i call that plaine to the iudge , wherein hee is assured of the lawe , though perhaps the partie and his councell yeeld not vnto it . and in such , the iudge with his assessors proceedeth to iudgement without farder worke : but when it is doubtfull to him and his associates , then is there stay made , and a time taken , either for the court to thinke farder vpon it , and to agree if they can : or els for all the iūstices to meete together in the chequer chamber , and vpon hearing of that which the sergeants shall say of both partes , to advise and set downe what is lawe . and whatsoeuer they conclude , standeth firme without farder remedie . smith . de repub. angliae . lib. . cap. . west . calleth it a demurrer in chauncery likewise , when there is question made whether a parties answer to a bille of complaint , &c. be defectiue or not : and thereof reference made to any of the bench for the examination therof , & report to bee made to the court . parte . . symb . tit . chauncery . sect . . denariata terrae . see farding deale of land . denizen , commeth of the french ( donaison . i. donatio ) and signifieth in our common lawe , an alein that is infrāchised here in england by the princes charter , an dinabled , almost in all respects , to doe as the kings natiue subiects doe : namely to purchas , and to possesse lands , to be capable of any office or dignitie . yet it is saide to be short of naturalis●●ion , because a straunger naturalised , may inherit lands by descent , which a man made onely , a denizen cannot . and againe , in the charter whereby a man is made denizen , there is commonly conteined some one claufe or other , that abridgeth him of that full benefite , which naturall subiects doe inioy . and when a man is thus infránchised , he is saide to bee vnder the kings protection , or , esse ad fidem regis angliae , before which time he can inioy nothing in england . bracton . lib. . tractat . . cap. . nu . . nay , hee and his goods might bee seised to the kings vse . horn in his mirrour of iustices . li. . ca. de la venue de franc plege . deodand ( deodandum ) is a thing giuen or forseited ( as it were ) to god for the pacification of his wrath in a case of misaduenture , whereby any christian soule commeth to a violent ende , without the fault of any reasonable creature . for example , if a horse should strike his keeper and so kille him ; if a man in dryuing a cart , and seeking to redresse any thing about it , should so fall , as the cart wheele running ouer him , should presse him to death : if one should be felling of a tree , and giuing warning to one cōming by , whē the tree were neere falling , to looke to themselues , and any of them should bee slaine neuerthelesse by the fall of the tree . in the first of these cases the horse , in the second the cart wheele , carte and horses , and in the third the tree is to be giuen to god : that is , to be sold and distributed to the poore , for an expiation of this dreadfull euent , though effected by vnreasonable , yea sensles & dead creatures . stawnf . pl. cor . lib. . ca. . whereof also read bracton . lib. . tractat . . cap. . and britton . cap. . and west parte . . symbolaeog . titulo indictments . sect . . and though this be giuen to god : yet is it forfeited to the king by lawe , as susteining gods person , and an executioner in this case , to see the price of these distributed to the poore , for the appeasing of god stirred vp euen against the earth and place , by the shedding of innocent blood thereupon . fleta , saith that this is sould , and the price distributed to the poore for the soule of the king , his auncesters , and of all faithfull people departed this life . lib. . cap. . verbo . de submersis . and it seemeth that this law hath an imitation of that in exodus . cap. . si cornu petierit bos virum vel mulierem , ita vt moriatur , lapidabitur bos , neque comedetur caro eius , at dominus eius erit innocens . de deonerando pro rata portionis , is a writ that lieth where one is distrained for a rent , that ought to be paid by others proportionally with him . for exāple , a man holdeth ten ; oxegangs of land by fealty , and ten shillings rent of the king , and alienateth one oxegang thereof to one , another , to another in fee. afterward the shyreeue or other officer , commeth and distraineth onely one of them for the rent : he that is distrained may haue this writ for his helpe . fitzh . nat . br . fo . . departer , is a word properly vsed of him , that first pleading one thing in barre of an action , and being replied thereunto , doth in his reioynder shew another mater contrary to his first plea. plowden in reniger and fogassa , fo . . & . and of this see diuers examples in brooke . titulo departer de son plee &c. departers of gold and siluer . see finours . de quibus sur disseisin , is a writ of entry . see fitzh . nat . br . fol. . c. dereyne ( disrationare , vel dirationare ) may seeme to come of the french ( disarroyer . i. confundere , turbare ) to confound or turne out of order , or ( desranger . . to set out of order , or lastly of the norman word ( desrene ) for with the normans ( desrene ) is nothing else but a proofe of the deniall of a mans owne fact . for rubigineus in his grand custumarie cap. . & . maketh mention of ( lex probabilis ) and ( lêx deraisnia ) legem probabilem or ( probationem ) he defineth to bee a proofe of a mans owne fact , which he saith he hath done , & his aduersarie denieth . his example is this : a. sieweth r. for a hogge : saying , thou shouldest deliuer mee a hogge for . shillings sixe pence : which mony f. paid thee : wherefore i demande my hogge . r. answereth . it is true that thou saiest , and i deliuered thee thy hog , which i am ready to prooue . deraisniā he defineth , to be a proofe of a thing that one denieth to be done by himselfe , which his aduersarie saith was done , defeating or confounding his aduersaries assertion ( as you would say ) and shewing it to be without and against reasō or likelyhood , which is avouched . in our commō lawe it is vsed diuersly , first generally , for to prooue : as dirationabit ius suum haeres propinquior . glanuile li. . cap. . and habeo probos homines , qui hoc viderunt & audierunt , & parati sunt hoc dirationare . idem lib. . cap. . and ( dirationauit terram illam in curia mea ) idem lib. . cap. . . hee prooued that land to bee his owne , &c. and ( peroinentiam eam dirationauit in vita sua , vel alio modo iuste perquisivit ) idem , lib. . cap. . and bracton vseth it after the same sort , in these words : habeo sufficientem disratiocinationem & probationem . lib. . tracta : cap. . and so he vseth ( disrationare ) lib. . cap. . and so in westm . . anno . . ed. pri : ca. . an to dereine the warrantie old . nat . br . f. . & to dereine the warrāty paramoūt . an . . h. . c. primo . and dereigner le warranty in plowd . casu basset in fine . . partis fo . . . & . a. hath the same signification . so it is vsed , westm . . cap. . anno . . ed. . in these words : and when the person of any church is disturbed to demaund tithes in the next parish , by a writ of ( indicauit ) the patron of the parson so disturbed to demaund tithes , shall haue a writ , to demaund the advowsen of the tithes being in demaund : and when it is deraigned , then shall the plee passe in the court christian , as farre forth as it is deraigned in the kings court . bracton also , li. . tracta . . cap. . nu . . speaking of him that appealeth another for any treason orfelonie , hath these words . proponat accusans appellum suum in hunc modum , sc : debet dicere se interfuisse , & vidisse certo loco , certo die , certa hora , & scivisse ipsum accusatum praelocutum fuisse mortem regis , vel seditionem suam , vel exercitus sui , vel consensisse , vel auxilium & consilium impendisse , vel ad hoc authoritatem praestitisse : & hoc ego iuxta considerationem curiae disrationare paratus sum . he vseth it likewise as the normans vse ( deraisniam ) for him , that offereth to iustifie his deniall : as lib. . tracta . . cap. . nu . . in these words . rex consilio episcorum & bonorum misit propter comitem , vt statuto die veniret ad curiam , ad disrationandum vel defendendum se , si posset . lastly , in some places i find the substantiue ( deremement ) vsed in the very literall signification of the french ( disrayer ) or ( desranger ) that is , as a man wold say , turning out of course , displacing or setting out of order : as dereinement or departure out of religion . anno . h. . cap. . and dereinment or discharge of their profession . anno . h. . cap. . which is spoken of those religious men , that forsooke their orders and professions : as also anno . & . ed. . cap. . soe doth kitchin vse the verb fo . . in these words : the leassee entreth into religion , and afterward is dereigned . and britton vseth these words ( semounse desrenable ) for a summons that may be chalenged as defectiue or not lawfully made , cap. . of this you may reade something more in skene de verb. signif . verbo disrationare , where in one signification he confoundeth it with our waging and making of lawe . de son tort demesne , seeme to be certaine words of forme in an action of trespasse , vsed by way of reply to the plee of the desendant . for example : a. sieweth b. in action of trespasse . b. answereth for himselfe , ●hat he did that which a calleth a trespasse , by the commaundement of c. his maister . a saith againe , that b. did it de son tort demesne , sans ceo que . c. luy commaunda modo & forma , that is : b. did it of his owne wrong , without that that c. commaunded him in such forme , &c. detin et . see debito and debet . detynew ( detinendo ) is a writ that lyeth against him , who hauing goods or chatels deliuered him to keepe , refuseth to deliuer them againe . see of this fitzh . nat . br . fol. . to this is answerable in some sort ( actio depositi ) in the ciuile lawe . and hee taketh his action of ditinew , that intendeth to recouer the thing deliuered , and not the dammages sustained by the detinew . kitchin fol. . see the new booke of entries . verbo , detinew . devastaverunt bona testatoris , is a writ lying against executors , for paying legacies and debts without specialties , to the preiudice of the creditours that haue specialties , before the debt vpon the said specialties be due . for in this case , the executors are as lyable to action , as if they had wasted the goods of the testatourriotously or without cause . new termes of lawe . devest ( devestire ) is contrarie to invest . for as investire signifieth possessionem tradere . so ( devestire ) is ( possessionem auferr● ) feud . libro primo cap. . devise , aliâs , divise commeth of the french ( diviser , i. disper●iri , discernere , separare , distinguere ) as ( diviser par ci & par la , distribuere . ) this word is properly attributed in our common lawe to him , that bequeathes his goods by his last will or testament in writing : and the reason is , because those that now appertain onely to the devisour , by this act are distributed into many parts . wherefore i thinke it better written divise thē deuise , howbeit , it were not absurd , to deriue this word from the french ( deuiser ) i. sermocinari , fabulari , consilium conferre . for in this sence it agreeth in some sort with the nature of the act of the testator , and with the etymologie of a testament set downe by iustinian , who saith , that testamentum is ( quaesi mentis testatio . titulo . de testa . ordinan . in institut . and testatio mentis cannot be so well , as by talke and conference with our wise and skilfull friends . devoires of cales , anno . r. . stat. . cap. . & anno . eiusdem , stat . . cap. . were the customes due to the king for merchandize brought to or caried out from caleis , when our staple was there . the word is french , signifying as much as ( officium ) dutie . devorce , aliâs , divorce ( divortium ) is with our common lawyers , accompted that separation betweene two de facto maried together , which is à vinculo matrimonii , non solùm à mensa & thoro . and therefore the woman so divorced , receiueth al againe that shee brought with her . this is not , but onely vpon a nullitie of the mariage through some essentiall impediment , as consanguinitie or affinity within the degrees forbidden , precontract , impotencie , or such like . see the new tearmes of lawe . diem clausit extremum , is a writ that lyeth for the heyre of him that holdeth land of the crowne , either by knights seruice or in soccage , and dyeth , be he vnder or at full age , directed to the escheatour of the county for inquirie to bee made by him , of what estate the partie deceased was seised , and who is next heyre vnto him , and of what valew the land is . the forme thereof and other circumstances , you may learne in fitzh . nat . br . fol. . dyer , was a learned lawyer , and lord chiefe iustice of the common plees , in the dayes of queene elizabeth : who writ a booke of great accompt , called his commentaries or reports . dies datus , is a respight giuen to the tenent or defendant before the court . brooke titulo . continuance . dicker of lether , is a quantitie consisting of tenne hides . the name may seeme to come from the greeke ( decas ) which is also a latine word signifying tenne in number . dignitie ecclesiasticall ( dignitas ecclesiastica ) is mentioned in the statute anno . h. . cap. . and is by the canonists defined to be ( administratio cum iurisdictione & potestate aliqua coniuncta . glos . in cap. . de consuet . iu sexto . ) whereof you may reade diuers examples in duarenus de sacris eccles . minist . & benefic . lib. . cap. . dioces ( dioecesis ) is a greeke word compounded of ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) and ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ) and signifieth with vs , the circuit of euery bishops iurisdiction . for this realme hath two sorts of diuisions , one into shyres or counties , in respect of temporall policie , another into diocesses in respect of iurisdictiō ecclesiasticall . dieta rationabilis , is in bracton vsed for a reasonable daies iourney . lib. . parte . . chap. . it hath in the ciuile law diuers other significations , not needfull heere to be set downe . v. vocab : vtirusque iuris . dimy haque . see haque . disalt , signifieth as much as to disable . litleton in his chapter of discontinance . disceite , see deceite and deceptione . see the new booke of entry , verbo disceit . discent , ( discensus ) in the french ( descente ) signifieth in the common law , an order or means whereby lands or tenements are deriued vnto any man from his auncestours : as to make his discent from his auncestours . old nat . br . fol. . is to shew how , and by what degrees , the land in question cam to him from his auncestours : as first from his great grandfather to his grandfather , from his grandfather to his father , and so to him . or in such other like sort : this discent is either lineall or collaterall . lineall discent is conueied downeward in a right line from the grandfather , to the father , and from the father to the sonne , and from the sonne to the nephew , &c. collaterall discent is springing out of the side of the whole blood : as grandfathers brother , fathers brother , &c. see the new tearmes of law . disclamer , ( disclamium ) is a plee containing an expresse deniall or refusall : as if the tenent siew a replevin vpon a distresse taken by the lord , and the lord avow the taking of the distresse , saying that he houldeth of him as of his lord , and that he distreined for rent not paid , or seruice not perfourmed : then the tenent denying himselfe to hould of such lord , is said to disclaime : and the lord prouing the tenent to hould of him , the tenant leeseth his land . tearmes of law . of this see skene de verb : signif : verbo disclamation . also if a man deny himselfe to be of the blood or kindred of another in his plee , he is said to disclaime his blood : eitzh : nat : br : fol , . g. see brooke , titulo disclaimer if a man arraigned of felonie do disclaime goods , being cleared he leeseth them . stawnf . pl. cor . fol. . see the new booke of entries . verbo , disclamer . discontinuance , ( discontinuatio ) commeth of the french ( discontinuer ) . i. cessare , intermittere ) and signifieth in the common law , nothing els but an interruption or breaking of : as discontinuance of possession , or discontinuance of proces . and the large discourse that litleton hath about this ( discontinuance ) is rather to shew cases wherein it is , or wherein it is not , then to define the thing . the effect of discontinuance of possession is this , that a man may not enter vpon his owne land or tenement alienated , whatsoeuer his right be vnto it , of his owne selfe , or by his owne authority , but must bring his writ , and seeke to recouer possession by law . examples you may haue store in his terms of law , verbo discontinuance . and in litleton eodem capite , with whom agreeth another in these words : but discontinuance of possession is indeed an impediment to a man for entring into his owne land or tenements , caused by the fact of one , that alienated them contrary to right , and gaue liuery and seisin of them , whereby the true owner is left only to his action . see the new tearmes of law , and the institutes of the common law. ca : . & see s. ed. cokes reportes . l. . the case of fines . fo . . b. the effect of discontinuance of plee is , that the instance is fallen , and may not be taken vp again , but by a new writ to begin the suite a fresh . for to be discontinued , and to be put without day , is all one ; and nothing els , but finally to be dismissed the court of that instance . west . parte . simbol : titulo . fines . sect : . so crompton in his diuers iurisdictions , fol : . vseth it in these words : if a iustice seate be discontinued by the not comming of the iustices , the king may renew the same by his writ , &c. in this signification fitzh : in his nat . br . vseth the word diuers times : as discontinuance of a corody , f. . a. to discontinew the right of his wife , fol. . l. & . . l. discontinuance of an assise , fol. . d. . b. disgrading , ( degradatio ) is the punishment of a clerk , that being deliuered to his ordinary , cannot purge himselfe of the offience , whereof he was conuicted by the iury : and is nothing but the depriuation of him from those orders of clerkship that he had , as preistehood , deaconship . &c. stawnf . pl : cor : fol. . & . there is likewise disgrading of a knight . stowes annals . pag. . and it is not to be omitted , that by the canon law , there be two sorts of disgrading : one summary by word onely , and another solemne by deuesting the party degraded of those ornaments and rites , which be the ensignes of his order or degree . dismes ( decimae ) is made of the french ( decimes ) and signifieth tithe or the tenth part of all the fruites , either of the earth , or beastes , or our labour , dew vnto god , and so consequently to him that is of the lords lot , and hath his share : viz. our pastour . it signifieth also the tenthes of all spirituall liuings , yearly giuen to the prince ( called a perpetuall disme . anno . . & . ed. . ca. ) which in auncient times , were paid to the pope , vntill pope vrbane gaue them to richard the second , to aide him against charls the french king , and those other that vpheld clement the seuenth against him . polidor virgil. angl. hist : lib. . lastly it signifieth a tribute leuied of the temporalty . holinshed . in henry . . fol. . disparidgment , disparagatio , is by our common lawyers , vsed especially for matching an heire in mariage vnder his or her degree . or against decencie . see my institutes . titulo de nuptiis . § . . disseisin ( disseisina ) commeth of the french ( disseisir ) and signifieth in the common lawe , an vnlawfull dispossessing of a man of his land , tenemēt or other immoueable or incorporeall right , iustitut . of the the com . lawe . ca. . and how farre this extendeth , see bracton , libro quarto , cap. tertio . and therefore the assises bee called writs of disseisin , that lie against disseisours in any case . whereof some bee termed little writs of disseisin . being vicontiel , that is , siewable before the shyreeue in the countie court , old . nat . br . fol. . because they are determined by the shyreeue without assise . register original . fo . . b. as for nuissances of no great preiudice . disseisin is of two sorts ; either simple disseisin , committed by day without force and armes . bracton . li. . ca. . britton . ca. . & . & . where you shall finde in what especially it is lawfull , in what not britton . ca. . and disseisin by force , for the which see defersour . see fresh disseisin . see redisseisin , and postdisseisin . see skene de verbo . significat . verbo dissaisina . disseisin how many waies it is committed . see fleta . li. . ca. . § . fit autem , &c. & when it is lawfull . ca. . distresse ( districtio , districtus ) cōmeth of the french ( distresse , augustiae ) it signifieth most commonly in the common law , a compulsion in certaine reall actions , whereby to bring a man to appearance in courte , or to pay debt or dutie denied . the effect whereof most commonly is , to driue the party distreined to replevie the distresse , and so to take his action of trespasse against the distreiner , or els to compound neighbourly with him for the debt or dutie , for the which he distreineth . in what cases a distresse is lawfull , see the newe termes of lawe . the civilians call it ( pignorum captionem ) brissonius de verbo . significa . lib. . this compulsion is by britton . ca. . diuided into a distresse personall and distresse reall : distresse personall , is made by surprising a mans moueable goods , and deteining them for the securitie of his appearance to the suite , and to make him plantiffe . a distresse reall , is made vpon immoveable goods , as the grand cape & petit cape . and thus it is interpreted by hotoman de verb. feudal : verbo districtus . this differeth from an attachement in this point ( among others ) that a distresse cannot bee taken by any common person , without the compasse of his owne fee. fitzh . nat . br . fol. except it bee presently after the catell or other thing is driuen or borne out of the ground by him that perceiueth it to bee in danger to be distreined . new termes of the lawe . verbo distresse . districtus , is sometime vsed for the circuit or territorie within the which a man may be thus compelled to apperance . ca. ne romani . de electione in clem : and cassan . de consuetud : burgand . pa. . britton . ca. . and so likewise is districtio in the register originall . fol. . b. and so it seemeth to bee vsed in pupilla oculi . parte . . c. . charta de foresta . see also mynsing . in the chapter . licet causam . . extra de probationibus . nu . . & zasius in his . councell . nu . . distresse , in the former signification , is diuided first into finite and infinite . finite is that which is limited by lawe , how often it shall be made to bring the partie to triall of the action , as once , twice . old nat . br . fo . . distresse infinite is without limitation vntill the partie come : as against a iurie that refuseth to appeare super certificatione assisae , the processe is a ( venire facias ) ( habeas corpora ) and distresse infifinite . old. nat . br . fol. . then it is diuided into a graund distresse . anno . . h. . ca. . which fitzherbert calleth in latine magnam districtionem . nat . br . fol. . a. and an ordinarie distresse . a graund distresse is that , which is made of all the goods and catels , that the partie hath within the countie . britton . ca. . fol. . but see whether it be sometime not all one with a distresse infinite . idem . fol. . with whom also the statute of marlbridge seemeth to agree . anno . h. . ca. . & ca. . & ca. . see old . nat . breu . fol. . b. see grand distresse , what thngs bee distreinable , and for what causes . see the newe termes of lawe . verbo distresse . of this also see more in attachment . distringas , is a writ directed to the shyreeue , or any other ofofficer , commanding him to distreine one for a debt to the king , &c. or for his appearance at a day . see great diuersitie of this writ in the table of the register iudicial , verbo distringas . divise . see devise . dividends in the exchequer , seemeth to be one part of an indenture . anno . ed. . ca. . & anno . eiusdem . stat. . ca. . dyvorce . see. devorce . docket , is a brife in writing . anno . . & . ph. & mar. ca. . west writeth it ( dogget ) by whome it seemeth to be some small peece of paper or parchement , conteining the effect of a larger writing . symbol . parte . . titulo fines . sect . . doctor and student , is a booke conteining certaine dialogues , betweene a d. of diuinitie , and a student at the common law , wherein are conteined questions and cases , as well of the equitie and conscience vsed in the common lawe , as also a comparison of the civile , canon , and common lawe together , very worthy the reading . the author is said by d. cosin in his apologie , to bee a gentleman , called saint german , the booke was written in the daies of h. . to do lawe ( facere legem ) is as much as to make lawe . . h. . ca. . see. make. dogge drawe , is a manifest deprehension of an offender against venison in the forest . there bee foure of these noted by m. manhood . parte . . of his forest lawes . ca. . nu . . viz. stablest and dogge drawe , back beare , and bloodie hand . dogge drawe , is when one is found drawing after a deere , by the sent of a hound , that he leadeth in his hand . dogger , a kinde of shippe . an . . ed. . stat. . ca. pr● . doggerfish , ibid. c. . seemeth to bee fish brought in those ships to blackcney hauen , &c. dogger men . anno . h. . ca. . dogget , see docket . domo reparanda , is a writ that lyeth for one against his neighbour , by the fall of whose house he feareth hurt toward his owne house . register originall . fol. . for this point . the ciuilians haue the action de damno infecto . dole fishe , seemeth to be that fish , which the fisher men , yerely imployed in the north sease , doe of custome receiue for their allowance , see the statute . a. . h. . ca. . donatyue , is a benefice meerely giuen and collated by the patron to a man , without either presentation to the ordinary , or institution by the ordinarie , or induction by his commandement . fitzh . nat . br . fol. . e. see the statute , anno . r. . cap. . of this petr. gregor . de beneficiis cap. . nu . . hatl . these words : si tamen capellaniae fundatae per laicos non fuerint a dioecesano approbatae , & vt ( loquuntur ) spiritualizatae , non censentur beneficia , nec ab episcopo conferri possunt , sed sunt sub pia dispositione fundatoris . ioh. faber ad § . nullius . de rerum divis : ideo fundatores & haeredes eorum , possunt tales capellanias donare sine episcopo , cui voluerint , tanquam profona beneficia . guido papaeus descis . . see also gregorius . lib. . ca. . sui syntagmatis . nu . . i finde in the preface of m. gwins readings , that as the king might of auncient times found a free chapell , and exempt it from the iurisdiction of the diocesan : so hee might also by his leters patents licence a common person , to found such a chapell , and to ordeine , that it shal be donatiue & not presentable , and that the chaplaine shall be depriueable by the founder and his heires , and not by the bishop . and this is likest to bee the originall of these donatiues in england . fitzh . saith , that there be certaine chauntries , which a man may giue by his leters patents . nat . br . fol. . c. see him also , fol. . b. all bishopricks were donatiue by the king , coke . li. . fo . . b. doomes day , ( rotulus wintoniae ) ( domus dei. coke in praefatione ad librum suum ) is a booke that was made in king ed. the confessors dayes , as the author of the old . nat . br . saith , f. . containing in it not onely all the lands through england , but also all the names of those , in whose hands they were at that time when the book was made . m. lamberd in his explication of saxon wordes ( verbo , ius dacoru , &c. ) proueth out of gervasius tilburiensis , that this booke was made in william the conquerors time : with whome agreeth m. camden in his britan. pag. . prouing it out of ingulphus , that flourished the same time . and for the beter commendation of the booke , it is not amisse to set downe the words of ingulphus , touching the contents thereof . totam terram descripsit . nec erat hyda in tota anglia , quin valorem eius & possessorem scivit , nec lacus nec locus aliquis , quin in regis rotulo extitit descriptus , ac eius reditus & proventus , ipsa possessio , & eius possessor regiae notitiae manifest atus , iuxta taxatorum fidom qui electi de qualibet patria territorium proprium describebant . iste rotulus vocatus est rotulus wintoniae , & ab anglis pro sua generalitate , quòd omnia tenementa totius terrae continuit ( domesday ) cognominatur . so it is called in the statute anno pri . ric. . cap. . and in ockhams lucubrations de fisci regii ratione , which seemeth to be taken out of the booke called ( liber rubeus ) in the exchequer . it is termed ( liber iudicatorius ) and the reason why quia in eo totius regni descriptio diligens continetur : & tam de tempore regis edwardi , quàm de tempore regis willielmi , sub quo factus est , singulorum fundorum valentia exprimitur . dorture ( dormitorium ) anno . . h. . ca. . is the common roome , place or chamber , where all the friers of one couent slept , and lay all night . dote assignanda , is a writ that lieth for a widowe , where it is found by office , that the kings tenent was seised of tenements in fee , or fee taile , at the day of his death , &c. and that hee holdeth of the king in cheife , &c. for in this case the widowe commeth into the chauncerie , and there maketh oath , that shee will not mary without the kings leaue . anno . ed. . ca. . and herevpon shee shall haue this writte to the escheatour , for which see the register originall fol. . and fitzh . nat . br . f. . and this sort of widowes is called the kings widowe . see widowe . dote vnde nihil habet , is a writ of dower , that lyeth for the widow against the tenent , which hath bought land of her husband in his life time , whereof he was feised solely in fee simple , or fee taile , in such sort as the issue of them both might haue inhereted it . fitzh . nat . br . fol. . register fol. . dotis admensuratione , see admēsurement . see the register . fol. . dotkins , a kinde of coine . pl : cor : fol : . it seemeth to come of the dutch word duythen , that is , the eight part of a stufer , or french shilling , which in lat ne is called solidus gallicus . doubles . anno . h. . cap. . signifie as much as leters patents , being as it seemeth a french word made of the latine ( diploma . ) double plee , ( duplex placitum ) is that , wherein the defendant alledgeth for himselfe two seuerall maters , in barre of the action , whereof either is sufficient to effect his desire in debarring the plaintiffe . and this is not to be admitted in the common lawe : wherefore it is well to be obserued , when a plee is double , and when it is not . for if a man alledge seuerall maters , the one nothing depending of the other , the plee is accounted double . if they be mutually depending one of the other , then is it accompted but single . kitchin fo . . see broke hoc titulo . but why this doublenes ( for so kitchin calleth it , fol. . ) should bee debarred , i see no reason ( vnder correction all things being spoken . ) for a man may haue two good defences : and happily in the issue he shall contrarily to his hope faile in prouing the one , and yet be able to carie the cause by the other . and therefore not onely the civilians , but bracton also saith : pluribus exceptionibus uti nemo prohibetur . lib. . tract . . cap. . num . . whom also reade , libro , . cap. . and sir thomas smiths reason of this scantly satisfieth me , alledging this to be the course of our proceeding , because the triall is by twelue rude men , whose heades are not to be troubled with ouer many things at once . lib. . de repub . anglor . cap. . double quarell ( duplex querela ) is a complaint made by any clerke or other vnto the archbishop of the prouince , against an inferiour ordinarie for delaying of iustice in some cause ecclefiasticall : as to giue sentence or to institute a clerke presented , or such like . the effect whereof , is that the said archbishop taking knowledge of such delay , directeth his leters vnder his authenticall seale , to all and singular clerkes of his prouince , therby commaunding and authorizing them and euery of them , to admonish the said ordinarie , within a certaine number of dayes , namely , . dayes , to doe the iustice required , or otherwise to cite him to appeare before him or his officiall , at a day in the said leters prefixed , and there to alledge the cause of his delay . and lastly , to intimate to the said ordinarie , that if he neither performe the thing enioyned , nor appeare at the day assigned , he himselfe will , without farder delay , proceed to perform the iustice required . and this seemeth to be tearmed a double quarell , because it is most commonly made against both the iudge , and him at whose petition iustice is delayed . dower ( dos ) commeth of the french ( douaire ) and signifieth in our common lawe , two things : first , that which the wife bringeth to her husband in mariage , otherwise called maritagiū , mariage good : next , and more commonly , that which she hath of her husband , after the mariage determined , if she out-liue him . glanvile . lib. . cap. . bracton . lib. . cap. . britton . cap. . in princ . and in scotland , ( dos ) signifieth iust as much . skene de verb. signif . verbo . dos . the former is in french called ( dot ) the other doüayre , and by them latined doarium . i likewise once thought it not vnreasonable , to call the former a dowrie , & the other a dower : but i find them confounded . for exāple : smith de rep . anglo . p. . calleth the later a dowrie , and dower is sometime vsed for the former : as in britton vbi supra . yet were it not inconuenient to distinguish them being so diuers . the civilians call the former ( dotem ) and the later ( donationem propter nuptias . ) of the former the common law bookes speake very litle . this onely is to be noted , that whereas by the ciuile lawe , instruments are made before mariage , which containe the quantitie of the wiues dowrie , or substance brought to her husband , that he hauing the vse of it , during mariage , may , after certaine deductions , restore it againe to his wiues heires or friends , after the mariage dissolued : the common lawe of england , whatsoeuer chatels moueable or immoueable , or readie money she bringeth , doth make them foorthwith her husbands owne , to be disposed of , as he will , leauing her at his courtesie , to bestow any thing or nothing of her at his death . the reason whereof is said to be , the holding of the wife in obedience to her husband . onely if she be an inheretrice , her husband holdeth the land but during her life , except he haue issue by her : but then he holdeth it by the courtesie of england during his owne life . see courtesie . and againe , if he haue any land in fee , wherof he was possessed during the mariage , she is to haue a third therof during her life , though she bring nothing to him , except she doe by fine release her right , during the mariage . so that here is no great mater to bee spoken of , but touching dower in the later signification . you must know therfore , that vpon speech of mariage betweene two , the parents of both sides are commonly more carefull in prouiding each for his childe , then the parties themselues : and that by their meanes there bee diuers bargaines made , sometime for the conueiance of lands , &c. to them and their issue : and this is said to be giuen in franke mariage : sometime to her during her life , and that before , or at the mariage : if before mariage , then it is called a ioynture . for a ioynture is a couenant , whereby the husband , or some for him is tyed ( ratione iuncturae ) in consideration of the mariage , that the wife surviuing him , shall haue during her life , this or that tenement or lands , or thus much rent yearely paylible out of such land , &c. with clause of distresse : and this may be more or lesse , as they doe accord . britton , cap. . whome read also ca. . . . for conventio vincit legem . bracton . lib. . tract . . cap. . the diuersitie of these ioyntures , you may see in west . parte prima symbol . lib. . sect . . . . . . . but if none of these former bargaines passe before mariage , then must the wife stick to her dower : and that is sometime giuen at the church doore or the chappell doore , if the mariage bee by licence , but not the chamber doore ; and may bee what the husband will : so it exceede not a third part of his lands . g lanvile libro . . cap. pri . or the halfe , as some say . fitzh . nat . br . fol. . n. p. and this dower is either certainly set downe and named , or not named but onely in generalitie , as the law requireth : if it be not named , then is it by lawe , the third part , and called ( dos ligitima ) bracton . lib. . tracta . . cap. . nu . . & . magna . charta . c. . or the halfe by the custome of some countries , as in gavelkinde . fitzh . nat . br . fol. . o. and though it bee named , it seemeth that it cannot bee aboue halfe the lands of the husband . fitzh . nat . br . fol. . p. and the woman that will chalenge this dower , must make . things good , viz. that shee was maried to her husband , that he was in his life time seised of the land , whereof shee demaundeth dower , and that he is dead . cokesreportes li. . binghams case . fo . . a. of these things see glanvile . li. . cap. . . & . bracton lib. . ca. . . & lib. . tracta . . cap. . & . and britton cap. . . . . and fitzherb . natur . brev . fol. . . . & . and this custumary , dower , seemeth to be obserued in other nations , as well as in ours . hotoman verbo dotalitium in verbis feudal : cassan . de consuetud . burg. pag. . . . & de conventionali . p. . and to these ioyne the graund custumarie of normandie , cap. . where you shall perceiue , that in a maner all our lawe in this point is taken from the normans : see endowment . of dower reade fleta likewise , who writeth largely thereof , and hath many things worth the learning . li. . ca. & seqq . dozenne . see decennier . drags . ano . . h. . ca. . seeme to be wood or timber so ioyned together , as swimming or floting vpon the water , they may beare a burden or load of other wares downe the river . drawe latches . anno . . ed. . ca. . & anno . . rich. . ca. . master lamberd , in his eirenarch lib : . ca. . calleth them miching theeues , as wasters and roberdsemen mighty theeues , saying that the words be growne out of vse . dreit dreit , signifieth a double right , that is ius possessionis , & ius domini . bracton . lib : . cap. . & lib. . tracta . . cap : . & lib. . tracta . . cap. . drye exchaunge . an . . h. . ca. . ( cambium siccum ) seemeth to be a clenly terme inuented for the disguising of foule vsury , in the which some thing is pretended to passe of both sides , wheras in truth , nothing passeth but on the one side : in which respect it may well be called drie . of this ludouicus lopes tractat : de contract : & negotiatio . lib : . ca. pri . § . deinde postquam : writeth thus : cambium est reale vel siccum . cambium reale dicitur , quod consistentiam veri cambit realem habet , & cambium per trans , & cambium minutum . cambium autē siccum est cambium non habens existentiam cambii , sed apparentiam ad instar arboris exsiccatae , quae humore vitali iam carens apparentiam arboris habet , non existentiam . summa sylv : verbo vsura . quaest : . est ergo cambium siccum iuxta hanc acceptionem ( in qua etiam accipitur in extrau . pii quinti ) idem quod cambium fictū . non autē habet propriam naturam cambii , sed mutui & vsurae . at verò secundum laurentium de nauarra in cōmento de vsuris & cambiis citatam , cambium siccum in alia acceptione minùs communi sumptum est cambium , in quo campsor prius dat quam accipiat . dicitur autem isto modo siccum , quia sine praeuia acceptione dat campsor . quod tamen , vt fic acceptum ( autore siluestro ) licitè celebratur aliquando . quia tunc verum & reale cambium est differens genere ab eo cambio , in quo campsor prius recipit . quia in isto campsor semper primò dat & deinde accipit . drift of the forest , seemeth to be nothing but an exact view or examination , what catell are in the forest : that it may be known , whether it be ouercharged or not , and whose the beastes be . this drift , when , how often in the yeare , by whome , and in what maner it is to be made , see manwood parte . . of his forest lawes . cap : . droit d' advowzen . see recto de aduocatione ecclesiae . droit close . see. recto clausum . droit de dower . see recto dotis . droit sur disclaimer . see recto sur disclaimer . droit patent . see rectopatens . duces tecum , is a writ commaunding one to appeare at a day in the chauncery , and to bring with him some peece of euidence , or other thing , that the court would view . see the new booke of entries , verb. duces tecum . duke ( dux ) commethe of the french ( duc ) it signifieth in auncient times among the romaines ductorem exercitus ) such as led their armies , who if by their prowes they obteined any famous victory , they were by their souldiers sa'uted ( imperatores ) as hotoman verbo dux , de verbis feud il : proueth out of lyvy , tully , and others . sithence that they were called ( duces ) to whome the king or people committed the custodie or regiment of any province . idem . eod . and this seemeth to proceede from the lombards or germans , sigon de regno ital. l. . in some natiōs at this day , the soveraignes of the country , are called by this name , as duke of russia , duke of swethen . heere in england , duke is the next in seculer dignitie to the prince of wales . and as ( m. camden saith ) heretofore in the saxons times , they were called dukes , without any addition , being but meere officers , and leaders of armies . after the conquerour came in , there were none of this title vntil edward the thirds daies , who , made edward his son duke of cornwayle . after that there were more made , and in such sort , that their titles descended by inheritance to their posteritie . they were created with solemnitie ( per cincturam gladii , cappaeque & circuli aurei in capite impositionem , vide camd. britan. pa. . zasium de feudis parte . . nu . . & cassan . de consuetud . burg pag. . & . and ferns glory of generosity . pag. . dutchy court , is a court , wherein all maters appertaining to the dutchy of lancaster , are descided the decree of the chauncelour of that court. and the originall of it was in henry the fourthes daies , who obtaining the crown , by deposing richard the second , and hauing the dutchy of lancaster by discent in the right of his mother , he was seised thereof as king , and not as duke . so that all the liberties , fraunchises , and iurisdictions of the said dutchy passed from the king by his graund seale , and not by liverie , or attournment : as the possessions of everwicke , and of the earldome of march , and such others did , which had descended to the king , by other auncesters then kings . but at the last , henry the . by authoritie of parlament passed a charter , whereby the possessions , liberties , &c. of the said dutchy were seuered from the crowne : yet henry the . reduced it to his former nature , as it was in henry the fifts daies . crompton iurisdict . fol. . the officers belonging to this court are the chauncellour , the atturney , receiuer generall , clerke of the court , the messenger . beside these , there be certain assistantes of this court : as one atturney in the exchequer : one atturney of the dutchy in the chauncery , foure learned men in the lawe , reteined of councell with the king in the said court . of this court m. gwin . in the preface to his readings thus speaketh : the court of the duchy ( or countie palatine of lancaster ) grew out of the graunt of king edward the third , who first gaue the dutchy to his sonne iohn of gawnte , and endowed it with such royall right , as the countie palatine of chester had : and for as much , as it was afterward extinct in the person of king henry the fourth , by reason of the vnion of it with the crowne : the same king suspecting himselfe to bee more rightfully duke of lancaster , then king of england , determined to saue his right in the dutchy , whatsoeuer should befal of the kingdome : and therefore hee separated the dutchy from the crowne , and setled it so in the naturall persons of himselfe and his heires , as if he had bin no king or politique bodie at all : in which plight it continued , during the reigne of k. henry the . and henry the . that were descended of him . but when king edw. the . had ( by recouery of the crowne ) recontinued the right of the house of yorke , hee feared not to appropriate that dutchy to the crowne againe : and yet so , that hee suffered the court and officers to remaine as he founde them . and in this maner , it came together with the crowne , to king henry the . who liking well of that policy of king h. the . ( by whose right also hee obteined the kingdome ) made like separation of the dutchy , as hee had done , and so left it to his posterity which doe yet inioy it . dumfuit infra aetatem , is a writ which lyeth for him , that before hee came to his full age , made a feofment of his land in fee , or for terme of life , or in taile , to recover them againe from him , to whome he conveied them . fitzh . nat . br . fol. . dum non fuit compos mentis , is a writ that lieth for him , that being not of sound memory , did alien any lands or tenements in fee simple , fee tayle , for terme of life , or of yeeres , against the alienee . fitzh . nat . br . fol. . duplicat , is vsed by crompton , for a second leters patent graūted by the lord chauncelour , in a case , wherein he had formerly done the same : and was therefore thought void . cromptons iurisd . fol. . dures ( duritia ) commeth of the french ( dur . i. durus , vel durete . i. duritas ) and is in our common lawe , a plee vsed in way of exception , by him that being cast in prison at a mans suite , or otherwise by beating or threats hardly vsed , sealeth any bond vnto him during his restraint . for the lawe holdeth this not good , but rather supposeth it to be constrained . brooke in his abridgement ioyneth dures and manasse together . i. duritiam & minas , hardnes and threatning . see the newe booke of entries , verbo dures . and the new termes of law . e a ealderman ( aldermannus ) among the saxons , was as much as earle among the danes . camden . britan. pag. . if yee goe to the true etimologie of the word , mee thinketh , it shoud sound more generally , so much as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with the graecians , or senator with the romanes : who were rather councellers at large , then bestowed vpon any particular office , as comites were . see countie . and that signification we retaine at this day almost in all our cities , and borowes , calling those aldermen , that are associates to the chiefe officer in the common councell of the towne . anno . h. . ca. . or sometime the cheife officer himselfe , as in stawnford . earle ( comes ) in m. camdens opinion . pag. . is a word made by the danes of ( ealderman ) a word of the saxons . m. lamberd seemeth notwithstanding to acknowledge , that earle is originally a saxon word . explica . of sax. words . verbo paganus : and interpreteth it ( satrapam ) which word the romaines borowing of the persians , applied to those that were praefecti provinciarum . m. verslegan in his restitution of decaied intelligence , deriueth it from two netherland words ( ear . i. honor ) and ( ethel i. nobilis ) wherein i leaue the reader to his owne iudgement . this title in auncient time , was giuen to those , that were associates to the king in his councels and marshall actions ( as comes was to those that folowed the magistrates in roome , and executed their offices for them as their deputies , and died alwaies with the man. zasius hath of this word thus much . comitū originem in doctoribus non invenimus : sed noveris cam dignitatem vetustissimam esse . nam cor. tacitus in libello de germania scribit apud priscos vsu fuisse receptum , vt cuilibet principi seu duci exercitus duodecim comites assignarentur : ideo dictos , quia comitarentur eos , & à ducum latere non decederent . comitū itaque originē germanis moribus ortum esse , dictus receptissimus autor testis est . quapropter quod in duodecimo libro codicis aliqui tituli de comitibus largitionum &c. inscribuntur , usurpationem imperatoris ex germanorum ritibus sumptam credo . but the conquerour ( as m. camd. saith ) gaue this dignitie in fee to his nobles , annexing it to this or that countie or province , and allotted them , for their maintenance , a certaine proportion of monie rising from the princes profits , for the pleadings and forfeitures of the province . for example , he bringeth an aunent record in these words . henricus . rex anglie his verbis comitem creauit : sciatis nos fecisse hugonet bigot comitē de nortfolk . sc : de tertio denario de norwic. & northfolke , sicut aliquis comes angliae liberiùs comitatum suum tenet . which words ( saith the same author ) an ould booke of battell abbie thus expoundeth : consuetudinaliter per totam angliammos antiquitùs inoleverat , comites provinciarum tertium denarium sibi obtinere , inde comites dicti . and another booke without name more fully . comitatus a comite dicitur , aut vice versa . comes autem est , quia tertiam portionem eorum , quae de placitis proveniunt , in quolibet comitatu percipit . sed non omnes comites ista percipiunt : sed hii quibus rex haereditariò aut personaliter concessit . you may reade m. fern in lacyse nobility , something to this effect . pa. . but he saith , that one duke or earle had diuers shires vnder his gouernment , as a viceroy , and had lieuetenants vnder him in euery particular shire , called a shyreeue . that one earle was dignified by the appellation or more rhen one shyreeue , it appeareth by diuers of our auncient statutes , as namely by the sentēce of excommunication pronounced by the bishops against the infringers of the great charter & charter of the forest . anno . . h. . roger bigot is named earle both of northfolke and southfolke , and anno . ed. . thomas earle of lancaster and leycester . humsrey bohum . earle of hereford and essex . dyer . fo . . nu . . at these daies , as long since , the kings of england make earles by their charters , of this or that countie , giuing them no authoritie ouer the countie , nor any part of the profit rising of it , but onely some annuall stipend out of the exchequer , rather for honours sake , then any great commoditie . and these bee in other nations accompted earles improperly . quia illi dicuntur verè comites , quibus datur comitatus in feudum : illi comites abusivè , qui non habent administrationem . vincentius de franchis . descis . . nu . . the maner of creating earles is by girding them with a sword . camden . pag. . but see the solemnitie thereof described more at large in stowes annals . pa. the occasion why these earles in later time haue had no swaye ouer the countie , whereof they beare their name , is not obscurely signified in sir thomas smith . lib. . cap. . where he saith , that the shyreeue is called vicecomes , as ( vicarius comitis ) following all maters of iustice , as the earle should do : and that because the earle is most commonly attendant vpon the king , in his warres or otherwise . so that it seemeth that earles by reason of their high employments , being not able to follow also the businesse of the countie , were deliuered of all that burthen , and onely enioyed the honour , as now they doe . and the shyreeue , though he be still called vice-comes , yet all he doth , is immediatly vnder the king , and not vnder the earle . see countie , & see hetoman . de verb. feudal . verbo comes : and cassan , de consuetud . burg. p . easement , ( esamentum ) is a seruice that one neighbour hath of another by charter or prescription , without profite , as a way through his ground , a sinke , or such like . kitchin. fol. . which in the ciuill lawe is called seruitus pradii . eele fares , aliâs , eele vare . an . . h. . cap. . be the frie or brood of eeles . egyptians ( egyptiani ) are in our statutes and lawes of england , a counterfeit kinde of roagues , that being english or welch people , accompany thēselues together , disguising themselues in straunge roabes , blacking their faces and bodies , and framing to themselues an vnknowne language , wander vp and downe , and vnder pretence of telling of fortunes , curing diseases , and such like , abuse the ignorant common people , by stealing all that is not too hote or too heauie for their cariaage . anno . & . phi. & m. cap. . anno . eliz. cap. . these are very like to those , whom the italians call cingari : of whom franciscus leo in suo the sauro fori ecclesiastici parte prim . cap. . thus writeth : cingari , qui corrupte vocabulo , quandoque etiam saraceni nominantur , & permissione principū ac aliorum dominorum , per italian vagantur , nec vnquam viderunt partes infidelium , minusque legem mahome it noverunt : sed sunt ferè omnes itali , & male habituati , ex rebus furtivis vivunt , ac fraudulentis earum permut ationibus & ludis , in quibus vt plurimum fraudes committunt , & sunt baptizati . eiectione custodiae , eiectment de gard , is a writ which lyeth properly against him , that casteth out the gardian from any land , during the minority of the heire . register origin . fol. . fitz. nat . br . fol. . tearmes of the law . verbo . gard. there be two other writs not vnlike this : the one is tearmed droit de gard , or right of guard , the other rauishment de gard. which see in their places . eiectione firmae , is a writ , which lyeth for the leassee for terme of yeares , that is cast out before the expiration of his tearme , either by the leassour , or a straunger . register fol. . fitz. nat . br . fo . . see quare eiecit infra terminum . see the new booke of entries . verbo eiectione firmae . einecia , is borowed of the french ( aisne . i. primogenitus ) and signifieth in our common lawe , eldership . statute of ireland . anno . hen. . of this see m. skene deverb . signif . verbo . eneya . eyre , aliâs , eyer , ( iter. bracton lib. . cap. . in rubrica ) commeth of the old french word ( erre . i. iter ) as ( à grand erre . i. magnis itineribus . ) it signifieth in britton cap. . the court of iustices itinerants : and iustices in eyre , are those onely , which bracton in many places calleth ( iusticiarios itinerantes ) of the eyre , reade britton vbi supra , who expresseth the whole course of it . and bracton . lib. . tractat . . cap. . & . the eyre also of the forest is nothing , but the iustice seate otherwise called : which is or should by auncient custome , be held euery three yeare by the iustices of the forest , iourneying vp and downe to that purpose . cromptons iurisd . fol. . manmood parte prima of his forest lawes . pag. . see iustice in eyre . reade skene de verborum significa . verbo . iter : whereby , as by many other places you may see great affinitie betweene these . kingdomes in the administration of iustice and gouernment . election de clerke ( electione clerici ) is a writ , that lyeth for the choyce of a clerke , assigned to take and make bonds called statute merchant : and is graunted out of the chauncerie vpon suggestion made , that the clerke formely assigned , is gone to dwell in another place , or hath hinderance to let him from following that businesse , or hath not land sufficient to answer his transgression , if he should deale amisse , &c. fitzh . nat . br . fol. . elegit , is a writ iudiciall , and lyeth for him , that hath recouered debt or dammages in the kings court , against one not able in his goods to satisfie : and directed to the shyreeue , commaunding him that he make deliuery of halfe the parties lands or tenements , and all his goods , oxen and beasts for the plough excepted . old nat . br . fol. . register originall fol. . & . and the table of the register iudiciall , which expresseth diuers vses of this writ . the author of the new terms of law saith , that this writ should be siewed within the yeare , whom read at large for the vse of the same . elk a kinde of ewe to make bowes of . anno . h . cap. . empanel ( impanellare , ponere in assisis & iuratis ) commeth of the french ( panne . . pellis ) or of ( pannequ ) which signifieth some time as much as a pane with vs , as a pane of glasse , or of a windowe . it signifieth the wrighting or entring the names of a iury into a parchment schedule or rolle or paper , by the shyreeue , which he hath sommoned to appeare for the perfourmance of such publique feruice , as iuries are imployed in . see panell . emparlance , commeth of the french ( parler ) and signifieth in our common lawe , a desire or petition in court of a day to pause , what is best to doe . the ciuilians call it ( petitionem induciarū ) kitchin fol. . interpreteth it in these words : if he imparle or pray continuance . for praying continuance is spoken interpretatiuè in that place , as i take it . the same author maketh mention of emparlance generall . fol. . and emparlance speciall fol. . emperlance generall seemeth to be that which is made onely in one word , and in generall terms . emparlance speciall , where the party requireth a day to deliberate , adding also these words : saluis omnibus aduantagiis tam ad iurisdictionem curia quàm ad breue & narrationem , or such like : britton vseth it for the conference of a iury vpon the cause committed vnto them . ca. . see imparlance . emprouement , see improuement . encheson . a. . ed. . ca. . is a french word , signifiing as much as occasión , cause , or reason wherefore any thing is done , see skene de verbo . significa : verbo encheson . encrochement or accrochemēt , commeth of the french ( accrocher . . apprehendere , inuncare , harpagare ) and that commeth of ( crochure . . aduncitas ) or ( crochu . . aduncus ) encrochement , in our common law , signifieth an vnlawfull gathering in vpon another man. for example , if two mens grounds lying togither , the one presseth too farre vpon the other : or if a tenent owe two shillings rent seruice to the lord , & the lord taketh three : so hugh and hugh spencer encroched vnto them royall power and authoritie , annoprim . ed. . in prooem . enditement ( indictamentum ) commeth of the french ( enditer . i. deferre nomen alicuius , indicare ) or from the greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because m. lamberd will haue it so . eirenar . lib. . cap. . pag. . it signifieth in our common lawe , as much as ( accusatio ) in the ciuile lawe , though it haue not in all points the like effect . west parte . symb . titulo , inditements ) defineth it thus : an inditement is a bill or declaration made in forme of lawe , ( for the benefite of the common wealth ) of an accusation for some offence , either criminall or penall , exhibited vnto iurours , and by their verdict found and presented to be true , before an officer hauing power to punish the same offence . it is an accusation , because the iury that inquireth of the offence , doth not receiue it vntill the party that offereth the bill , appeare so farre in it , as to subscribe his name , and offer his oth for the truth thereof . it differeth from an accusation in this , that the preferrer of the bill is no way tyed to the proofe thereof vpon any penalty , if it be not proued , except there appeare conspiracy . wherefore , though moued by m. wests authority , i call it an accusation : yet i take it to be rather ( denuntiatio ) because it is of office done by the great enquest , rather then of a free intent to accuse . of this you may reade . s. tho. smith de repub. anglor . lib. . cap. . and stawnf . pl. cor . lib. . cap. . . . . &c. vsque . and m. lamberds eirenarcha . li. . ca. . whence you may receiue good satisfaction in this mater . endowment ( dotatio ) commeth of the french ( doüare ) and signifieth the bestowing or assuring of a dower . see dower . but it is sometime vsed metaphorically , for the setting forth or seuering of a sufficient portion , for a vickar toward his perpetuall maintenance , when the benefice is appropriated . see appropriation . and the statute a. . r. . cap. . endowment de la plus belle part . is where a man dying seised of some lands , houlding in knights seruice , and other some in socage , the widow is sped of her dower , rather in the lands houlding in socage , then knights seruice . of this reade litleton more at large . li. . ca. . enfranchisement , cōmeth of the french ( franchise . . libertas ) and is in a maner a french word of it selfe : it signifieth in our common law , the incorporating of a man into any societie , or body politicke . for example , he that by charter is made denizen of england , is said to be enfranchised ; and so is he that is made a citizen of london , or other city , or burges of any towne corporate , because he is made partaker of those liberties that appertaine to the corporation , whereinto he is enfranchised . so a villaine is enfranchised , when he is made free by his lord , and made capable of the benefites belonging to freemen . englecerie ( engleceria ) is an old abstract word , signifying nothing else but to be an english man. for example , if a man bee priuily slaine or murthered , he was in old time accompted ( francigena ) which word comprehendeth euery alien , vntil englecerie was proued : that is , vntill it were made manifest , that he was an englishman . a man may maruell , what meaning there might be in this : but bracton cleareth the doubt , who in his third booke tract . . cap. . num . . telleth vs , that when canutus the danish king , hauing setled his estate here in peace , did at the request of our barons , disburden the land of his armie , wherein he accompted his greatest safetie : and conditioned with them , that his countrimen which remained here , should continue in peace : and the more to secure that , that for euery francigena ( vnder which word ( as is aboue said ) he comprehended all outlandish men and women , and especially danes ) that was secretly murthered , there should be leauied to his treasurie . merkes out of the village , where the murder was cōmitted , or out of the hundred , if the village were not able to pay it : and further , that euery man murdered should be accompted francigena , except englecery were proued : which how it was to be proued , looke the . number in the same chapter . and see also horns myrror of iustices . lib. . cap. del office del coroner , and fleta lib. . cap. . this englecerie for the abuses and troubles that afterwarde were perceiued to grow by it , was cleane taken away , by a statute made anno . ed. . capite quarto . enheritance : see inheritance . enquest ( inquisitio ) is all one in writing with the french word , and all one in signification both with the french and latine . howbeit , it is especially taken for that inquisition , that neither the romanes , nor french men euer had vse of , that i can learne . and that is the enquest of iurors , or by iurie , which is the most vsuall triall of all causes both ciuile and criminall in our realme . for in causes ciuill after proofe is made of either side , so much as each partie thinketh good for himselfe , if the doubt be in the fact , it is referred to the discretion of twelue indifferent men , empaneled by the shyreeue for the purpose : and as they bring in their verdict , so iudgement passeth . for the iudge saith , the iurie findeth the fact thus : then is the law thus : and so we iudge . for the enquest in causes criminall , see iurie . and see sir thomas smith de repub. anglor . lib. . cap. . an enquest is either of office , or at the mise of the partie . stawnf . pl. cor . lib. . cap. . entendment , commeth of the french ( entendement . i. intellectus , ingenium . ) it signifieth in our common lawe so much , as the true meaning or signification of a word or sentence . see of this kitchin , fol. . entayle ( feudum talliatum ) commeth of the french ( entaille . i. inscisus ) and in our cōmon lawe , is a substantiue abstract , signifying fee-tayle , or fee-intayled . litleton in the second chapter of his book , draweth fee-tayle from the verbe talliare , ( which whence it commeth , or whether it will i know not ) whereas in truth it must come from the french ( taille . i. sectura , ) or ( tailler . i. scindere , secare ) and the reason is manifest , because fee-tayle in the law , is nothing but fee abridged , scanted or curtelled , ( as you would say , ) or limited and tyed to certaine conditions . taille in fraunce is metaphorically taken for a tribute or subsidie . v. lupanum de magistratibus francorū . lib. . cap. talea . see fee. see tayle . enterpleder ( interplacitare ) is compounded of two french words : ( entre . i. inter ) and ( pleder . i. disputare ) and it signifieth in our common law , as much as cognitio praeiudicialis in the ciuile law : that is , the discussing of a point incidently falling out , before the principall cause can take end . for example , two seuerall persons being found heires to land by two seuerall offices in one countie , the king is brought in doubt to whether liuery ought to be made : and therefore before liuery be made to either , they must enterpleade , that is , formerly try betweene themselues , who is the right heire . stawnf . praeroga : chap. . see more examples in brooke . titulo enterpleder . entiere tenancie , is contrary to seuerall tenency , signifiing a sole possession in one man : wheras the other signifieth ioynt or common in more . see brooke seuerall tenancy . see the new booke of entries , verbo entier tenancy . entry ( ingressus ) commeth of the french ( entree . i. introitus ingressus , aditus ) and properly signifieth in our common lawe , the taking possession of lands or tenements . see plowden . afsise of fresh force in london . fo . . b. it is also vsed for a writ of possession , for the which see ingressu . and read west also , parte . . symbol . titulo recoueries . sect : . & . . who there sheweth for what things it lyeth , and for what it lyeth not . of this britton in his . chapter writeth to this effect . the writs of entrie sauour much of the right of propertie . as for example : some be to recouer customes and seruices : in the which are contained these twoe words ( solet & debet ) as the writs quo iure , rationabilibus diuisis , rationabili estoverio , with such like . and in this plee of entrie there be three degrees : the first is , where a man demandeth landes or tenements of his owne seisin , after the terme is expired . the second is , where one demaundeth lands or tenements let by another after the terme expired . the third , where one demaundeth lands or tenements of that tenent , that had entry by one , to whom some auncestor of the plaintife did let it for a term now expired . according to which degrees the writs for more fit remedie are varied . and there is yet a fourth forme , which is without the degrees , and in case of a more remote seisin , whereunto the other three degrees do not extend . the writ in the second degree is called a writ of entrie in le per : and a writ in the third degree is called a writ of entrie in le per & cui : and the fourth forme without these degrees , is called a writ of entry in le post , that is to say , after the disseisin which such a one made to such a one . and if any writ of entry be conceiued out of the right case , so that one forme be brought for another , it is abatable . the form of the first degree is such . praecipe willielmo quod reddat petro manerium de b. cum pertinentiis quod ille dimisit pro termino , qui est elapsus . the second is such : praecipe petro quod reddat willielmo manerium &c. in quod ille non habuit ingressum nisi per patrem a 〈…〉 matrem , avunculum , vel amitam , vel cognatum , avum vel proavum dicti petri , qui dictum manerium danifit pro termino qui est elapsus . the third forme is such : praecipe iohanni quod reddat petro manerium de s. in quod ille non habuit ingressum nisi per t. cui talis pater vel mater , vel alius antecessor aut cognatus idem dimisit , cuius haeres est ipse petrus , pro termino , qui est elapsus . and the forme without the degrees is such : in quod non habuit ingressum , nisi post lessam , quam talis pater aut mater ( sic vt supra ) cuius haeres ille est , inde fecit pro termino , qui est elapsus . and in those foure degrees be comprehended all maner writs of entry , which be without certaintie and number . thus farre britton : by whome you may perceiue , that those words ( solet & debet ) and also those other words ( in le per ) ( in le per & cut ) and ( in le post ) which we meete with many times in bookes shortly and obscurely mentioned , do signifie nothing else , but diuers formes of this writ , applyed to the case , whereupon it is brought ; and each forme taking his name from the said words contained in the writ . and of this reade fitz. in his nat . br . fol. . & . this writ of entry differeth from an assise , because it lyeth for the most part , against him , who entred lawfully , but houldeth against lawe : whereas an assise lyeth against him that vnlawfully disseised : yet sometime a writ of entrie lyeth vpon an intrusion . regist . orig . fol. . b. see the new booke of entries , verbo . entre brevis . fol. . colum . . i reade of a writ of entry in the nature of an assise . of this writ in all his degrees , reade fleta lib. . cap. . & seqq . . entrusion ( intrusio ) in our cōmon lawe , signifieth a violent or vnlawfull entrance into lands or tenements , being vtterly voide of a possessour , by him that hath no right nor sparke of right vnto them . bracton lib. . cap. . for example , if a man steppe in vpon any lands , the owner whereof lately died , and the right heire , neither by himselfe nor others , as yet hath taken possession of them . what the difference is betweene abator and intrudor , i do not well perceiue , except an abatour be he that steppeth into land voide by the death of a tenent in fee , and an entrudour that doth the like into lands , &c. voide by the death of the tenent for termes of life or yeares . see fitz. nat . br . fol. . f. the authour of the new termes of law would haue abatement latined , ( interpositionem , aut introitionem per interpositionem ) and to be restrained to him that entreth before the heyre after the decease of a tenent for life , though the new booke of entries fol. . c. & . d. & . c. by his confession doth latine ( abatement ) by this word ( intrusionem . ) see abatement . see disseisin . see britton , cap. . entrusion is also taken for the writ brought against an intrudour , which see in fitzh . nat . br . fol. . entrusion de gard , is a writ , that lyeth where the infant within age entred into his lands , and houldeth his lord out : for in this case , the lord shall not haue the writ ( de communi custodia ) but this . old nat . br . fol. . envre , signifieth to take place or effect , to be avaylable , example : a release shall envure by way of extinguishment . litleton . cap : release : and a release made to a tenent for terme of life , shall inure to him in the reuersion . erius , alius iris , is the flower de . luce . whose diuers kindes you haue expressed in gerards herball . lib. . ca. . the roote of this is mentioned among merchandize or drugs to be garbled . anno . . laco . ca. . ermins , seemeth to come of the french ( ermine . i. mus araneus ) it signifieth a furre of great price . erminstreate . see watlingstreate . errant ( itinerans ) commeth of the french ( errer ) . i. errare ) or the ould word ( erre . i. iter ) it is attributed to iustices of circuit . pl. cor : f : . and baylifes at large . see iustices in eyre . and baylife . see also eyre . errour ( error ) commeth of the french ( erreur ) and signifieth more specially in our common law , an errour in pleading or in the proces . brooke , titulo errour . and thereuppon the writ , which is brought for remedy of this ouersight , is called a writ of error , in latine , de errore corrigendo : thus defined by fitz. in his nat . br . fol. . a writ of errour is that properly , which lyeth to redresse false iudgement giuen in any court of record , as in the common bench , london , or other citie , hauing power ( by the kings charter or prescription ) to hold plee of debt . see the new booke of entries . verbo . error . or trespasse aboue the summe of twenty shillings . this is borowed from the french practise , which they call ( proposition d'erreur . ) wherof you may reade in gregorius de appellation . pag. . in what diuersitie of cases this writ lyeth , see the register originall in the table , verb. errore corrigendo , and register iudiciall . fol. . there is likewise a writ of errour to reuerse a fine . west parte sect . symbol . titulo . fines . errore corrigendo . see errour . escambio , is a licence graunted to one , for the making over of a bill of exchange to a man ouer sea. register . original . fol. . a. escape ( escapium ) commeth of the french ( eschapper .. i. aufugere effugere ) : and signifieth in the lawe , a violent or priuie evasion out of some lawfull restraint . for example , if the shyreeue vpon a capias directed vnto him , take one , and indeavour to carie him to the gaol , and he in the way , either by violence or by slight , breake from him : this is called an escape . pl. cor . fol. . many examples might bee brought out of him and others , but the thing is plaine : stawnford lib. . ca. . pl. cor . nameth two kindes of escapes , voluntarie & negligent : voluntarie is , when one aresteth another for felonie or some other crime , and afterwards letteth him goe whither he listeth . in which escape the partie that permitteth it , is by lawe guiltie of the fault committed by him that escapeth , be it felonie , treason , or trespas : negligent escape is , when one is arrested , and afterward escapeth against his wil that arrested him , and is not pursued by fresh suite , and taken againe , before the partie pursuing hath lost the fight of him : idem , cap. . but there read more of this mater , for there be doubts worth the consideration . and of the course of punishment by the ciuill lawe in this point , reade in practica criminali claudii de battandier . reg . . reade also cromptons iustice . fol. . b. & fol. . & . and read the newe termes of lawe . there is an escape of beasts likewise : and therefore he that by charter , is quietus de escapio in the forest , is deliuered of that punishment , which by order of the forest , lieth vpon those whose beasts be found within the land forbidden : cromptons iurisdict . fo . . eschequer ( scaccarium ) commeth of the french ( eschequier . i. abacus , tabula lusoria ) and signifieth the place or court of all receipts belonging to the crowne , and is so termed , as i take it , by reason that in auncient times , the accomptants in that office vsed such tables as arithmeticians vse for their calculations , for that is one fignification of ( abacus ) amonst others . polidor . virgil. lib. . histo . anglo . saith that the true word in latine is statarium , and by abuse called scaccarium . in mine opinion , it may well seeme to be taken from the german word ( schatz ) signifiing as much as ( the saurus ) or ( fiscus ) and from this fountaine ( no doubt ) springeth the italian word ( zeccha ) signifiing a mynt : and zeccherii aliàs zecchieri ) the officers thereunto belonging , descis . geruen . m. cam. in his britan. p. . saith that this court or office tooke the name à tabula ad quam assidebant , proouing it out of geruasius tilburiensis , whose words you may read in him . this court is taken from the normans , as appeareth by the grand custumarie . cap. . where you may finde the eschequier thus described . the eschiquier is called an assemblie of high iusticiers , to whome it appertaineth to amend that which the baliffes and other meaner iusticiers haue euill done , and vnaduisedly iudged : and to doe right to all men without delaie , as from the princes mouth : skene de verbo . significatione : verbo ( scaccarium ) hath , out of paulus aemilius these words : scaccarium dicitur quasi statarium , quòd homines ibi in iure sistantur , vel quòd sit stataria & perennis curia , cum ceterae curiae essent indictivae , nec loco nec tempore statae : where he saith also of himselfe , that in scotland the eschequer was stable , but the other session was deambulatorie , before iames the . qui instituit statariam curiam , cum antea esset indictiva : he addeth farder : others thinke that scaccarium is so called a similitudine ludi scaccorum , that is the play of the chests : because many persons meete in the chequer , pleading their causes one against the other , as if they were fighting in an arraied battaile : others think that it commeth from an old saxon word ( scata ) as writeth s. thomas smith , which signifieth treasure , taxation , or imposts , whereof accompt is made in the chequer : this court consisteth , as it were , of . parts : whereof one is conuersant especially in the iudiciall hearing and deciding of all causes appertaining to the princes cofers , aunciently called scaccarium computorum , as ockam testifieth in his lucubration : the other is called the receipt of the eschequer , which is properly imploied in the receiuing and paiment of money . crompton in his iurisdictions , fo . . defineth it to be a court of record , wherein al causes touching the reuenewes of the crown are handled . the officers belonging to both these , you may find named in m. camdens britannia , ca. tribunalia angliae , to whome i referre you . the kings exchequer which now is setled in westminster , was in diuers countries of wales , anno . h. . ca. . but especially ca. . escheate ( eschaeta ) cōmeth of the french ( escheoir , i. cadere , accidere , excidere , and signifieth in our common lawe , any lands or other profits , that fall to a lord within his maner by way of forfeiture , or the death of his tenēt , dying without heire generall or especiall , or leauing his heire within age or vnmaried , magna chart . ca. . fitzh . nat . br . fol. . t. &c. escheate is also vsed some time for the place or circuit within the which the king or other lord hath escheates of his tenents . bracton li. . tract . . cap. . & pupilla oculi parte . ca. . escheate thirdly , is vsed for a writ , which lieth , where the tenent hauing estate of see simple in any lands or tenements holden of a superiour lord , dieth seised without heire generall or especiall . for in this case the lord bringeth this writ against him that possesseth these lands after the death of his tenent , and shall thereby recouer the same in liew of his seruices . fitzh . nat . br . fol. . these that we call escheats , are in the kingdome of naples called excadentiae or bona excadentialia : as : baro locat excadentias eo modo quo locatae fuerūt ab antiquo : it a quod in nullo debit a servitia minuantur , & non remittit gallinam debitam : iacobutius de franchis in praeludiis ad feudorum vsum , tit . . nu . . & nu . . v. maranta singularia , verbo excadentia . and in the same signification , as we say the fee is escheated , the feudists vse ( feudum aperitur . li. . feud . titulo . . § . . ti . . & ti . . § . . escheatour ( escaetor ) commeth of ( escheate ) and signifieth an officer that obserueth the escheates of the king in the countie , whereof he is escheatour , and certifieth them into the eschequer : this officer is appointed by the l. treasurer , and by leters patents from him , and continueth in his office but one yeare , neither can any be escheatour aboue once in . yeares . anno . . h. . cap. . & anno . eiusd . ca. . see more of this officer and his authoritie in cromptons iustice of peace . see an . . ed. . the forme of the escheatours oath , see in the register original . fol. . b. fitzh . calleth him an officer of record . nat . br . fol. . c. because that which he certifieth by vertue of his office , hath the credit of a record . officium escaetriae , is the escheatourship . register . orig . fo . . b. escuage ( scutagiū ) commeth of the french ( escu . i. clypeus ) a bucler or sneild . in our common lawe , it signifieth a kinde of knights seruice , called seruice of the shield , whereby the tenent holding is bound to follow his lord into the scottish or welsh warres , at his owne charge : for the which see chyvalrie . but note that escuage is either vncertaine or certaine . escuage vncertaine , is properly escuage , and knights seruice , being subiect to homage fealtie , ward and mariage , so called , because it is vncertaine how often a man shal be called to followe his lord into those wars , and againe what his charge wil be in each iourney . escuage certaine , is that which yearely payeth a certaine rent in lieu of all seruices , being no further bound then to pay his rent , called a knights fee , or halfe a knights fee , or the fourth part of a knights fee , according to his land & this leeseth the nature of knights seruice , though it hold the name of escuage , being in in effect , soccage . fitzh . nat . br . fol. . c. esnecy ( aesnecia ) is a prerogatiue giuen to the eldest coparcener , to choose first after the inheritance is diuided . fleta . li. . ca. . § . in diuisionem . esplees ( expletia ) seeme to be the full profits that the ground or land yeldeth , as the hay of the medowes , the feede of the pasture , the corne of the earable , the rents , seruices , and such like issues : ingham . it seemeth to proceede from the latine ( expleo ) the profits comprised vnder this word , the romans call properly accessiones . nam accessionum nomine intelligūtur ea generaliter omnia , quae ex re , de qua agitur , orta sunt , veluti fructus , partus , & omnis causa rei , & quaecunque ex re procedunt . l. . Π. de in diem adiectio . li. . Π. ad trebel . l. . § . hiis etiam . Π. de furt . see the new terms of law . esquier ( armiger ) is in leters little altered from the french ( escuier . i. scutiger ) it signifieth with vs a gentleman , or one that beareth armes , as a testimony of his nobilitie or gentrie . s. thomas smith is of opinion , that at the first , these were bearers of armes to lords and knights , and by that had their name and dignity . indeede the french word is sometime translated ( agaso ) that is , a boy to attend or keepe a horse , and in ould english writers , it is vsed for a lackey or one that carieth the shield or speare of a knight . mast . camden in his britannia pag : . hath these words of them : hauing spoken of knights : hiis proximi fuere armigers , qui & scutiseri , hominesque ad arma dicti , qui vel a clypeis gentilitiis , qua in nobilitatis insignia gestant : vel quia principibus & matoribus illis nobilibus ab armis erant , nomen traxerunt . olim enim ex hiis duo vnicuique militi seruiebant , galeam clypeumque gestabant . &c. hotoman in the sixth chapter of his disputatiōs vpon the feods saith , that these which the french men call escuiers ) were a militarie kinde of vassall haueing ius scuti , which is as much to say ( he there interpreteth him selfe ) as that they bare a shield , and in it the ensignes of their family , in token of their gentility or dignity . essendi quietum de telonio , is a writ that lieth for citizens or burgesses of any city or towne , that haue a charter or prescription to exempt them from tolle , through the whole realme , if it chaunce they be any where exacted the same . fitzh . nat . br . fol. . register fol. . essoine ( essonium ) commeth of the french ( essoniè or exonniè . i. causarius miles ) he that hath his presence forborne or excused vpon any iust cause , as sicknesse or other incumbrance . it signifieth in our common lawe , an alledgement of an excuse for him that is summoned , or sought for to appeare and answer to an action reall , or to performe suite to a court baron , vpon iust cause of absence . it is as much as ( excusatio ) with the ciuilians . the causes that serue to essoine any man summoned , be diuers & infinite : yet drawne to fiue heads , whereof the first is ( vltra mare ) the second ( de terra sancta ) the third ( de malo vemendi ) which is also called the common essoine the fourth is ( de malo lecti ) the fifth ( de seruitio regis ) for further knowledge of these , i referre you to glanvile in his whole first booke , and bracton li. . tractat . . per totum . and brittan ca. . . . . and to horns mirrour of iustices , li. . ca. des essoinis , who maketh mention of some more essoines touching the seruice of the king celestiall , then the rest doe , and of some other points not vnworthie to be knowne . of these essoines you may reade farder in fleta l. . c. . & seqq . & that these came to vs frō the normans , is well shewed by the grand custumarie , where you may find in a maner all said , that our lawyers haue of this mater , cap. . . . . . . . essoines and profers , anno . h. . cap. . see profer . essonio de malo lecti , is a writ directed to the shyreeue , for the sending of . lawfull knights to view one that hath essoined himselfe de malo lecti . register . orig . fol. . b. establishment of dower , seemeth to be the assurance of dower , made to the wife by the husband or his freinds , before or at mariage . and assignement is the setting it out by the heire afterward , according to the establishment . britton . cap. . & . estandard or standard , commeth of the french ( estandart ) or estendart . i. signum , vexillum . it signifieth an ensigne in warre , as well with vs as with them . but it is also vsed for the principall or standing measure of the king , to the scantling whereof , all the measures through the land , are or ought to be framed by the clerk of the market , aulneger , or other officer according to their functions , for it was established by the statute of magna charta . anno . h. . ca. . that there should be but one scantlin of weights or measures thorough the whole realme , which is sit hence confirmed by anno . ed. . ca. . and many other statutes , as also that all should be fitted to the standard sealed with the kings seale . it is not called a standard without great reason : because it standeth constant and immoueable , and hath all other measures comming toward it for their conformitie , euen as souldiours in field haue their standard or colours for their direction in their march or skirmish . of these standards and measures , reade britton . cap. . estate , commeth of the french ( estat . i. conditio ) and signifieth especially in our cōmon lawe , that title or interest , which a man hath in lands or tenements , as estate simple , otherwise called fee simple , and estate conditionall or vpon condition , which is ( as litleton saith , li. . ca. . ) either vpon condition indeede , or vpon condition in lawe . estate vpon condition in deede is , where a man by deede indented infeoffeth another in fee , reseruing to him and to his heires yearelie a certaine rent paiable at one feast or at diuers , vpon condition that if the rent be behind , &c. that it shall be lawfull to the feoffour and to his heires , to enter in the lands or tenements , &c. estate vpon condition in lawe , is such as hath a consideration in the lawe annexed to it , though it be not specified in writing . for example , if a man graunt to another by his deed , the office of a parkership for terme of his life , this estate is vpon condition in the lawe , or imploied by lawe . viz. if the parker so long shall wel and truly keepe the parke , &c. i reade also of an estate particular , which is an estate for life or for yeares . parkins surrenders . . estopel , seemeth to come from the french ( estouper . i. oppilare , obturare , stipare , obstipare ) and signifieth in our common lawe , an impediment or barre of an action growing from his owne fact , that hath or otherwise might haue had his action : for example : a tenent maketh a feofment by collusion to one : the lord accepteth the seruices of the feoffee : by this he debarreth himselfe of the wardship of his tenents heire . fitz. nat . br . fo . . k. diuers other examples might be shewed out of him and brooke h. titule sir edward cooke . lib. . casu goddard fol. . b. defineth an estopel to be a barre or hindrance vnto one to pleade the truth , and restraineth it not to the impediment giuen to a man by his owne act onely , but by anothers also . li. . the case of fines . fol. . a. estovers ( estoverium ) commeth of the french ( estouver . . fovere ) and signifieth in our common lawe , nourishment or maintenance : for example : bracton . lib. . tractat . . cap. . num . . vseth it for that sustenance , which a man taken for felonie , is to haue out of his lands or goods for himselfe and his family , during his imprisonment : and the statute anno . ed. prim . cap. . vseth it for an allowance in meate or cloath . it is also vsed for certaine allowances of wood , to be taken out of another mans woods . so is it vsed west . . cap. . anno . edw. . m. west parte . symbol . titulo fines . sect . . saith , that the name of estovers containeth housebote , hay-bote , and plow-bote : as if he haue in his graunt these generall words : de rationabili estoverio in boscis , &c. he may thereby clay me these three . estrepement , or estripament , ( estrepementum ) commeth of the french word ( estropier . i. mutilare , obtruncare ) the which word the french men haue also borowed of the italians , or rather spaniards , with whome ( estropear ) signifieth to set vpon the racke . it signifieth in our common lawe , spoile made by the tenent for terme of life , vpon any lands or woods , to the preiudice of him in the reversion , as namely in the statute anno . ed. . ca. . and it may seeme by the deriuation , that estrepament is properly the vnm easurable soaking or drawing of the heart of the land by ploughing or sowing it continually , without manuring , or other such vsage as is requisite in good husbandrie . and yet ( estropier signifying mutilare ) it may no lesse conueniently be applied to those , that cut downe trees or loppe them farder then the lawe will beare . this signifieth also a writte , which lieth in two sorts , the one is , when a man hauing an action depending ( as a fordom , or dum fuit infra aetatem , or writ of right , or any such other ) wherein the demandant is not to recouer dammages , sieweth to inhibite the tenent for making waste , during the suite . the other sort is for the demaundant , that is adiudged to recouer seisin of the land in question , and before executiō siewed by the writ habere facias seisinam , for feare of waste to be made before he can get possession , sieweth out this writ : see more of this , in fitzh . nat . br . fol. . & . see the register orig . fol. . and the regist . iudicial . fol. . estreate ( extractum vel extracta ) commeth of the french ( traict ) which among other things signifieth a figure or resemblance : and is vsed in our common lawe , for the copie or true note of an originall writing . for example , of amerciaments or penalties set downe in the rolles of a court , to be leauied by the bay liffe or other officer , of euery man for his offence . see fitzh . nat . br . fol. . h. i. k. & . a. and so is it vsed westm . . cap. . anno . edw. . estrey ( extrahura ) in our common law signifieth any beast not wilde , found within any lordship , and not owned by any man. for in this case , if it being cried , according to lawe , in the market townes adioyning , shall not be claimed by the owner within a yeare and a day , it is the lords of the soyle . see britton cap. . see estrayes in the forest , anno . h. . cap. . new booke of entries . verbo . trespas concernant estrey . evidence , ( evidentia ) is vsed in our lawe generally for any proofe , be it testimonie of men or instrument . sir thomas smith vseth it in both sortes . lib. . cap. . in these words : evidence , in this signification , is authenticall writings of contracts after the maner of england , that is to say , written , sealed , and deliuered . and lib. . cap. . speaking of the prisoner that standeth at the barre , to pleade for his life , and of those that charge him with felonie , he saith thus : then he telleth what he can say : after him likewise all those , who were at the apprehension of the prisoner , or who can giue any indices or tokens , which we call in our language ( evidence ) against the malefactour . examiner in the chauncerie or starre-chamber , ( examinator ) is an officer in either court , that examineth the parties to any suite vpon their oathes , or witnesses producted of either side : whereof there be in the chauncerie two . exception ( exceptio ) is a stoppe or stay to an action , being vsed in the ciuill and common lawe both alike , and in both diuided into dilatorie and peremptorie . of these see bract. lib. . tract . . per totum , and britton cap. . . exchaunge , ( excambium , vel cambium ) hath a peculiar signification in our common lawe , and is vsed for that compensation , which the warrantor must make to the warrantee , valewe for value , if the land warranted be recouered from the warrantee . bracton lib. . cap. . & li. . cap. . it signifieth also generally as much as ( permutatio ) with the civilians , as the kings exchaunge , anno . h. . cap. . & . & anno . ed. . stat . . cap. . which is nothing else , but the place appointed by the king for the exchaunge of bullion , be it gold or siluer , or plate , &c. with the kings coine . these places haue bene diuers heretofore as appeareth by the saide statutes . but now is there only one , viz. the tower of london conjoyned with the mint . which in time past might not be , as appeareth by anno . henrici . ca. . exchequer , see eschequer . excheatour , see escheatour . excommunication , ( excommunicatio ) is thus defined by panormitan : excommunicatio est nihil aliud , quàm censura à canone , vel iudice ecclesiastico prolata & insticta , privans legitima communione sacramentorum , & quandoque hominum . and it is diuided in maiorem & minorem , minor est , per quam quis à sacramentorum participatione conscientia vel sententia arcetur . maior est , quae non solùm à sacramentorum , verùm etiam fidelium communione excludit , & ab omniactu legitimo separat & di vidit . venatorius de sentent . excom . excommunicato capiendo , is a writ directed to the shyreeue , for the apprehension of him that standeth obstinately excommunicated for fortie dayes : for such a one not seeking absolution , hath or may haue his contempt certified or signified into the chauncerie , whence issueth this writ , for the laying of him vp without baile or mainprise , vntill he conforme himselfe . see fitz. nat . br . fol. . & anno . eliz cap. . and the regist . orig . fol. . . & . excōmunicato deliberando , is a writ to the vnder shyreeue , for the deliuery of an excōmunicate person out of prison , vpon certificate from the ordinary of his conformitie to the iurisdiction ecclesiasticall . see fitzh . nat . br : fol. . a. and the register fol. . & . excommunicato recipiendo , is a writ whereby persons excommunicate , being for their obstinacie committed to prison , and vnlawfully deliuered thence , before they haue giuen caution to obey the authority of the church , are commaunded to be sought for and laide vp againe . register orig . fo . . a. executione facienda , is a writ commaunding execution of a iudgement : the diuers vses wherof , see in the table of the register iudiciall . verbo executione facienda . executione facienda in withernamium , is a writ that lyeth for the taking of his catell , that formerly hath conueyed out of the county the catell of another , so that the bayliffe hauing authority from the shyreeue , to repleuy the cattell so conueighed away , could not execute his charge . register originall , fol. . b. execution ( executio ) in the common law , signifieth the last performance of an act , as of a fine , or of a iudgement . and the execution of a fine , is the obtaining of actuall possession of the things contained in the same , by vertue thereof : which is either by entry into the lands , or by writ : whereof see west at large , parte . . symbol . titulo fines . sect : . . . executing of iudgements , and statutes , and such like , see in fitzh . nat . br . in indice . . verbo execution . s. ed. coke . vol : . casu blumfield . fo . . a. maketh two sorts of executions , one finall , another with a ( quousque ) tending to an end . an execution finall is that , which maketh mony of the defendants goods , or extendeth his lands , and deliuereth them to the plaintife . for this the party accepteth in satisfaction : and this is the end of the suite , and all that the kings writ commaundeth to be done . the other sort with a ( quousque ) is tending to an end , and not finall , as in the case of ( capias ad satisfaciendum &c. ) this is not finall : but the body of the party is to be taken , to the intent and purpose to satisfie the demaundant : and his imprisonment is not absolute , but vntill the defendant doe satisfie . idem . ibidem . executour ( executor ) is he , that is appointed by any man , in his last will and testament , to haue the disposing of all his substance , according to the content of the said will. this executor is either particular or vniuersall . particular , as if this or that thing onely be committed to his charge . vniuersall , if all . and this is in the place of him , whom the ciuilians call haeredem , and the law accounteth one person with the party , whose executor he is , as hauing all aduantage of action against all men , that he had , so likewise being subiect to euery mans action , as farre as himselfe was . this executor had his beginning in the ciuill lawe , by the constitutions of the emperours , who first permitted those , that thought good by their wils to bestowe any thing vpon good and godly vses , to appoint whome they pleased , to see the same performed , and if they appointed none , then they ordained , that the bishop of the place should haue authoritie of course , to effect it . l. . c. de episcopis & clericis . and from this in mine opinion , time and experience hath wrought out the vse of these vniuersall executors , as also brought the administration of their goods that die without will , vnto the bishop . exemplificatione , is a writ granted for the exemplification of an originall , see the register original . fol. . ex gravi querela , is a writ that lieth for him , vnto whome any lands or tenements in fee within a city , towne or borough , being devisable , are deuised by will , and the heire of the deuisour entreth into them , and detaineth them from him . register originall . fol. . old nat . br . fol. . see fitzh . nat . br . fol. . l. exigendarie of the common banke ( exigendarius de banco comuni ) is otherwise called exigenter . anno . h. . cap. . and is an officer belonging to that court , for the which see exigenter . exigent ( exigenda ) is a writ , that lyeth where the defendant in an action personall , cannot be found , nor any thing within the county , whereby to be attached or distrained , and is directed to the shyreeue , to proclaime and call fiue county daies one after another , charging him to appeare vnder the paine of outlawrie . termes of the law . this writ lyeth also in an indictment of felony , where the party indicted cannot be found : smith de rep. angl. li. . ca. . it seemeth to be called an exigent : because it exacteth the party , that is , requireth his expearance or forth-comming , to answer the lawe , for if he come not at the last daies proclamation , he is saide to be quinquies exactus , and then is outlawed . crompton iurisd . fol. . and this m. manwood also setteth downe for the law of the forest . parte . i. of his forest lawes pag. . see the new booke of entries , verbo exigent . exigenter ( exigendarius ) anno . h. . ca. . is an officer of the court of common plees , of whom there be foure in number : they make all exigents and proclamations in all actions , where proces of outlawrie doth lie , and writs of supersedeas , as well as the protonotaries , vpon such exigents , as were made in their offices . ex mero motu , are words formally vsed in any charter of the prince , whereby he signifieth , that he doth that which is cōtained in the charter of his owne will and motion , without petition or suggestion made by any other . and the effect of these words are to barre al exceptions , that might be taken vnto the instrument wherein they be contained , by alledging that the prince in passing that charter , was abused by any false suggestion : kitchin fol. . exoneratione sectae , is a writ that lyeth for the kings ward , to be disburdened of all suite , &c. to the countie , hundred , leet , or court baron , during the time of his wardship . fitz. nat . br . fol. . exparte latis , is a writ that lyeth for a bayliffe or receiuer , that hauing auditours assigned to heare his accompt , cannot obtaine of them reasonable allowance , but is cast into prison by them . regist . fol. . fitzh . nat . br . fol. . the maner in this case is , to take this writ out of the chauncerie directed to the shyreeue , to take foure mainperuours to bring his bodie before the barons of the echequer at a day certaine , & to warn the lord to appeare at that time : newe tearmes of the lawe . verb. accompt . expectant , is vsed in the common lawe with this word ( fee ) and thus vsed , it is opposite to fee-simple . for example , lands are giuen to a man and his wife in franke mariage , to haue and to hold to them and their heires . in this case they haue fee simple . but if it be giuen to them and the heires of their body , &c. they haue tayle and see expectant . kitchin fol. . mathaeus de afflictis vseth the adiectiue ( expectativa ) substantiuely in the same signification . descis . . num . . pag. . explees . see espleese . expeditate ( expeditare ) is a word vsuall in the forest , signifiing to cut out the balles of the great dogges feet , for the preseruation of the kings game . euery one that keepeth any great dogges not expeditated , forfeiteth to the king . shillings . pence . crompt . iurisd . fol. . m. manwood vseth the same word , parte prim . of his forest lawes , pag. . and pag. . he setteth downe the manner of expeditating dogges heretofore , viz. quòd tres ortelli abscindantur sine pellota de pede anteriori . i. that the three clawes of the sorefoot on the right side , shall be cut off by the skinne , whereunto he also addeth out of the same ordinance , called the assise of the forest , that the same maner of expeditating of dogges , shall be still vsed and kept , and none other . quaere whence it groweth , that m. crompton and hee differ : the one saying , that the ball of the foote it cut out , the other that the three foreclawes are pared off by the skinne . expensis militum levandis , is a writ directed to the shyrecue , for levying the allowance for knights of the parlament . register original . fol. . b. expensis militum non levandis ab hominibus de antiquo dominico , nec à natiuis , is a writ whereby to prohibite the shyreeue from levying any allowance for the knights of the shire , vpon those that hold in auncient demesn , &c. regist . orig . fol. . b. extend ( extendere ) commeth of the french ( estendre . i. dilatare , dispandere , distendere ) and signifieth in our common lawe , to valew the lands or tenements of one bound by statute , &c. that hath forfeited his bond , to such an indifferent rate , as by the yearely rent the obligour may in time be paide his debt . the course and circumstances of this see in fitzh . nat . br . fol. . brief d'execution sur statut merchant . extendi facias , is a writ ordinarily called a writ of extent , whereby the valew of lands , &c. is commaunded to be made and leavied in divers cases , which see in the table of the register originall . extent ( extenta ) hath two significations , sometime signifiing a writ or commission to the shyreeue for the valuing of lands or tenements . register iudiciall in the table of the booke : sometime the act of the shyreeue or other commissioner , vpon this writ . brooke titulo . extent . fol. . extinguishment , in our common law , signifieth an effect of consolidation . for example , if a man haue due vnto him a yearely rent out of any lands , and afterward purchase the same lands , now both the property and rent are consolidated , or vnited in one possessour , and therefore the rent is said to be extinguished . in like maner it is , where a man hath a lease for yeares , and afterwards buyeth the property : this is a consolidation of the property and the fruites , and is an extinguishment of the lease , see the terms of lawe . extirpatione , is a writ iudiciall , that lyeth against him , who after a verdict found against him for land , &c. doth maliciously ouerthrow any house vpon it , &c. and it is two-fold , one ante iudicium , the other post iudicium : register iudiciall fol. . . . extortion ( extortio ) signifieth in our common law , an vnlawfull or violent wringing of mony or mony worth from any man. for example , if any officer by terrifiing any the kings subiects in his office , take more then his ordinary duties , he committeth , and is inditeable of extortion : to this ( by m. wests iudgment ) may be referred the exaction of vnlawfull vsurie , winning by vnlawfull games , and ( in one word ) all taking of more then is due , by colour or pretence of right ; as excessiue tolle in milners , excessiue prices of ale , bread , victuals , wares , &c. west parte . . simbol . titulo . indictments sect : . m : manwood saith , that extortion is colore officis , and not virtute officii . parte . . of his forest lawes , pag. . m. crompton in his iustice of peace fol. . hath these words in effect : wrong done by any man is properly a trespas : but excessiue wrong done by any is called extortion : and this is most properly in officers , as shyreeues , maiors , baylifes , escheatours , and other officers whatsoeuer , that by colour of their office worke great oppression , and excessiue wrong vnto the kings subiects , in taking excessiue rewarde , or fees , for the execution of their office . great diuersity of cases touching extortion , you may see in cromptons iustice of peace . fol. . b. & . & . see the difference betweene colore officij , & virtute vel ratione officij . plowd . casu . dives . fol. . a. this word is vsed in the same signification in italy also . for cavalcanus de brachio regio , parte . num . . thus describeth it . extortio dicitur fieri , quando iudex cogit aliquod sibi dari quod non est debitum , vel quodest vltrà debitum : vel ante tempus petit id , quod post administratam iustitiam debetur . extreats . see estreats . eyre . see eire . f faculty , ( facultas ) as it is restrained from the original and actiue signification , to a particular vnderstanding in lawe , is vsed for a priuiledge , or especiall power graunted vnto a man by fauour , indulgence , and dispensation , to do that which by the common lawe he cannot doe : as to eate flesh vpon daies prohibited , to mary without bans first asked , to hold two or more ecclesiasticall liuings , the sonne to succeede the father in a benefice ; and such like . and for the graunting of these , there is an especiall officer vnder the archbishop of canterbury , called ( magister ad facultates ) the master of the faculties . fag . anno . ed. . cap. . faint and false action , seeme to be synonima in litleton . fol. . for ( faint ) in the french tongue signifieth as much as ( fained ) in english . faint pleader ( falsa placitatio ) commeth of the french ( feint ) a participle of the verbe ( feindre . i. simulare , fingere ) and ( pledoir . i. placitare . ) it signifieth with vs , a false covenous , or collusory maner of pleading , to the deceipt of a third partie . anno . & . h. . cap. . faire , aliás , feire , ( feria ) commeth of the french ( foire ) and signifieth with vs , as much as ( nundinae ) with the civilians : that is a solemne or greater sort of market , granted to any towne by priuiledge , for the more speedie and commodious prouision of such things , as the subiect needeth , or the vtterance of such things , as we abound in , aboue our owne vses and occasions : both our english and the french word seeme to come of ( feriae ) because it is alwaies incident to the priuiledge of a faire , that a man may not be arested or molested in it for any other debt , then first was contracted in the same , or at least was promised to be payed there . an . . ed. . cap. . & anno . r. . cap. . faire pleading , see beau pleader . faitours , seemeth to be a french word antiquated , or something traduced . for the moderne french word is ( faiseur . i. factor ) it is vsed in the statute anno . r. . cap. . and in the euill part , signifying a bad doer . or it may not improbably be interpreted an idle liuer , taken from ( faitardise ) which signifieth a kind of numme or sleepy disease , proceeding of too much sluggishnesse , which the latines call ( veternus . ) for in the said statute it seemeth to be a synonymon to vagabound . falke land , aliâs , folke land . see copi-hold and free-hold . false imprisonment , ( falsum imprisonamentum ) is a trespasse cōmitted against a man , by imprisoning him without lawefull cause : it is also vsed for the writ which is brought vpon this trespasse . fitz nat . br . fol. . k. & . p. v. broke h. t. see the new booke of entries . verbo . false imprisonment . falso iudicio , is a writ , that lyeth for false iudgement giuen in the county , hundred , court baron , or other courts being no court of record , be the plea reall or personall . register originall fol. : fitzh . nat . br . fol. . see the new booke of entries . verbo false iudgement . false prophecies . see prophecies . falso returno bre●●im . is a writ lying against the syreeue , for false returning of writs . register iudic . fo . . b. falsifie , seemeth to signifie as much , as to proue a thing to be false . perkins dower . . . . farding , or farthing of golde . seemeth to be a come vsed in auncient times , containing in valew the fourth part of a noble . viz. twenty pence siluer , and in weight the sixth part of an ounce of gould , that is , of fiue shillings in siluer , which is threepence and something more . this word is is found anno . h. . stat . . ca. . thus : item that the king doe to be ordained good and iust weight , of the noble , halfe noble , and farthing of gould , with the rates necessary to the same , for euery city , &c. by which place it plainly appeareth , to haue bene a coine , as well as the noble and halfe noble . farding deale aliâs farundell of land ( quadrantata terrae ) signifieth the fourth part of an acre . crompt . iurisd fol. . quadrantata terrae . is read in the register orig . fol. . b. where you haue also denariata & ●bolata , solidata , & librata terrae , which by probabilitie must rise in proportion of quantitie from the farding deale , as an halfepeny , peny , shilling , or pound rise in valew and estimation : then must ●bolata be halfe an acre , denariata the acre , solidata twelue acres , & librata twelue score acres , and yet i find ( viginti libratas terrae vel reditus . regist . original . fol. . a & fol. . b. whereby it seemeth , that librata terrae , is so much as yeeldeth twenty shillings per annum , and centum soliditas terrarum tenement orum & redituum . fol. . a. and in fitz. nat . br . fol. . f. i find these words : viginti libratas terrae vel reditus , which argueth it to be so much land as twenty shillings per annum . see furlong . fate or fat : is a great wooden vessell , which among brewers in london , is ordinarily vsed at this day , to measure mault by , containing a quarter , which they haue for expedition in measuring . this word is read anno . h. . cap. . & anno . h. . cap. . fealtie ( fidelitas ) commeth of the french ( feaulte . i. fides ) and signifieth in our common lawe , an oath taken at the admittance of euery tenent , to be true to the lord , of whom he holdeth his land . and he that holdeth land by this onely oath of fealty , holdeth in the freest maner , that any man in england vnder the king may hold : because all with vs that haue fee , hold ( per fidem & fiduciam ) that is , by fealtie at the least . smith de repub. anglor . li. . cap. . for , fidelitas est de substantia feudi , as dwarenus saith de feud . cap. . num . . and mathaeus de afflictis decis . . num . . pag. . saith , that fidelitas est substantiale feudi , non servitium . the particulars of this oath , as it is vsed among the feudists , you may reade well expressed by zasius in his tractate de feudis . part . . num . . & . which is woorth the comparing with the vsuall oath taken here in our part of britannie . this fealtie is also vsed in other nations , as the lombards and burgundians . cassanaus de consuet . burgund . pag. . & . and indeed the very first creation of this tenure , as it grew from the loue of the lord toward his followers , so did it bind the tenent to fidelitie , as appeareth by the whole course of the feods . and the breach thereof is losse of the fee. duarenus in commentariis feudorum cap. . num . . & wesenbecius in tract . de feudis cap. . num . & seqq . antonius contius in methodo feudorum cap. quibus modis feudum amittitur . hotoman in his commentaries ( de verbis feudalibus ) sheweth a double fealtie : one generall , to be performed by euery subiect to his prince : the other speciall , required only of such , as in respect of their fee are tyed by this oath toward their landlords : both we may reade of in the grand customary of normandy , being of course performed to the duke , by all resient within the dutchie . the effect of the words turned into latine by the interpreter , is this : fidelitatem autem tenentur omnes residentes in provincia duci facere & servare : vnde tenentur se ei innocuos in omnibus & fideles exhibere , nec aliquid ipsum incommodi procurare : nec eius inimicis praebere contra ipsum consilium vel iuvamen : & qui ex hoc inventi fuerint ex causa manifesta , notabiles & traditores principis reputantur . et omnes eorum possessiones perpetuae principi remanebunt , si super hoc convicti fuerint vel damnati : omnes enim in normania tenentur principi fidelitatem observare . vnde nullus homag ium vel fidelitatem alicuius potest recipere , nisi salva principis fideliiate . quod etiam est in eorum receptione specialiter exprimendum . inter dominos autem alios & homines fides taliter debet obseruari , quòd neuter in personam alterius personalem violentiam , seu percussionis iniectionem cum violētia , debet irrogari . si quis e●●m eorū ex hoc fuerit accusatus in curia & conuictus , feudum omne debet amittere &c. this fealty speciall , is with vs performed either by free men or by villeines . the forme of both see anno . ed. . stat . . in these words : when a freeman shall doe fealty to his lord , he shall hould his right hand vpon a booke , and shal say thus : heare you my lord r. that i. p. shal be to you both faithfull and true , and shall owe my fealty to you for the land that i hould of you at the terms assigned : so help me god and all his saints . when a villaine shall doe fealty vnto his lord , he shall hould his right hand ouer the booke , and shall say thus : heare you my lord . a. that i. b. from this day forth vnto you shal be true and faithfull , and shall owe you fealty for the land that i hould of you in villenage , and shal be iustified by you in body and goods : so helpe me god & all his saints . see the register originall . fol. . a. fee ( feodum , aliâs feudum ) commeth of the french ) fief . i. praedium beneficiarium , vel res clientelaris ) and is vsed in our common lawe , for all those lands which we hold by perpetuall right : as hotoman well noteth verbo feodumide verbis f●udalibus : our auncient lawyers either not obseruing whēce the word grew , or at the least not sufficiētly expressing their knowledge , what it signified among them , from whome they tooke it , feudum whence the word ( fief ) or fee commeth , signifieth in the german language ( beneficium cuius nomine opera quaedam gratiae testifieandae causa debentur , hotoman disput . ca. . and by this name goe all lands & tenements , that are held by any acknowledgement of any superioritie to a higher lord. they that write of this subiect , doe diuide all lands and tenements , wherein a man hath a perpetuall estate to him and his heires , &c , into allodium & feudum . allodium is defined to be euerie mans owne land , &c. which he possesseth meerely in his owne right , without acknowledgement of any seruice , or paiment of any rent vnto any other , and this is a propertie in the highest degree , and of some it is called ( allaudium ab a privatiua particula , & laudum vel laudatio , vt sit praedium cuius nullus author est nisi deus . est enim laudare , vel nouio teste , nominare . quod & budaeus docuit ad modestinum . l. herennius . Π. de haere . institu . prataeus . verbo . allaudium . hotoman in verb. feuda . feudum is that , which we hold by the benefite of another , and in the name whereof we owe seruice , or pay rent , or both , to a superior lord . and all our land here in england ( the crowne land which is in the kings owne hands in the right of his crowne , excepted ) is in the nature of feudum or fee , for though many a man hath land by descent from his auncestors , and many another hath dearely boughtland for his money , yet is the land of such nature , that it cannot come to any , either by discent or purchase , but with the burthē that was laid vpon him , who had novel fee , or first of all receiued it as a benefite from his lord , to him and to all such , to whome it might discend , or any way be conueied from him . so that if we will reckon with our host ( as the proverbe is ) there is no man here , that hath directum dominium . i. the very propertie or demaine in in any land , but the prince in the right of his crowne . camd. britan . pag. . for though he that hath fee , hath ius perpetuum , & vtile dominium : yet he oweth a dutie for it : & therefore is it not simply his owne . which thing i take those words , that we vse for the expressing of our deepest right in any lands or tenements , to import : for he that can say most for his estate , saith thus : i am seised of this or that land or tenement in my demaine , as of fee. seisitus inde in dominico meo vt de feudo , and that is as much , as if he said , it is my demaine or proper land after a sort : because it is to me and mine heires forever : yet not simply mine , because i hold it in the nature of a benefite from another . yet the statute anno . h. . ca. . vseth these words of lands invested in the crowne : but it proceedeth from the ignorance of the nature of this word ( fee ) for fee cannot be without fealty sworne to a superiour , as you may reade partly in the word ( fealtie ) but more at large in those that write de feudis : and namely hotoman , both in his commentaries and disputations . and no man may graunt , that our king or crowne oweth fealty to any superior but god onely . yet it may be said , that land , &c. with vs is termed fee in two respects ; one , as it belongeth to vs and our heires for ever : and so may the crowne land be called fee : the other , as it holdeth of another , which is and must be farre from our crowne . britton ca. . defineth fee to this effect . fee is a right consisting in the person of the true heire , or of some other , that by iust title hath , purchased it . fleta saith that feudum est quod quis tenet ex quacunque causa sibi & haeredibus suis , siue sit tenementum , siue reditus , qui non proveniunt ex camera , & alio modo dicitur feudum , sicut eius quifeoffat , & quod quis tenet ab alio : sicut dicitur : talis tenet de tali tot feuda per servitium militare . li. . ca. . § . feudum autem . and all that write de feudis , doe hold that ( feudatarius ) hath not an entire propertie in his fee : nay , it is held by right learned men , that these fees were at the first invention or creation of them , either all or some of them temporarie , and not perpetuall and hereditarie . iacobutius de franchis in praeludio fend . ca. . nu . . the diuisions of ( fee ) in diuers respects are many , and those though little knowne to vs in england , yet better worthie to known , then we commonly thinke . but for our present purpose , it is sufficient to diuide fee into two sorts : fee absolute , otherwise called simple : and fee conditionall , otherwise termed fee tayle : fee simple ( feudum simplex ) is that , whereof we are seised in these generall words ( to vs and our heires for ever . ) fee tayle ( feudum talliatum ) is that , whereof we are seized to vs and our heires with limitation , that is , the heires of our body , &c. and fee taile is either generall or speciall . generall is , where land is giuen to a man and the heires of his body . the reason whereof is giuen by litleton ca. . li. . because a man seised of land by such a gift , if he marie one or more wiues , and haue no issue by them , and at the length marie another , by whome he hath issue , this issue shall inherit the land : fee taile speciall is that , where a man and his wife be seised of lands to them , and the heires of their two bodies . the reason is likewise giuen by litleton in the same place , because in this case , the wife dying without issue , and he marying another , by whome he hath issue , this issue , cannot inherit the land , being specially giuen to such heires , &c. this fee taile hath the originall , from the statute of westm . . cap. . which was made anno . ed. . yet see bracton . li. . ca. . nu . . hiis verbis . item quaedam absoluta & larga , & quaedam stricta & coarctata , sicut certis haeredibus to whome adde plowden , casu willion . fo . . a. b. & seqq . for before that statute , all land giuen to a man and his heires , either generall or speciall , was accompted in the nature of fee : and therefore held to be so firmely in him to whome it was giuen : that , any limitation notwithstanding , he might alienate and fell it at his pleasure : much like that which the civilians call ( nudum praeceptum ) binding rather by way of counsell and aduice , then compulsion or restrainte : and this thing seeming vnreasonable to the wisedome of our realme , because so a man meaning well to this or that posterity of himselfe or his freinds , might be forthwith deceiued of his intention , the said statute was made for redresse of this inconvenience , wereby it is ordained , that if a man giue lands in fee , limiting the heires to whome it shall descend , with a reversion to himselfe or his heires for default , &c. that the forme and true meaning of his gift , shal be obserued . wherefore in what conscience our lawyers haue invented meanes , so easily to cut off this forme of gift , it is to be considered . he that hath fee then , holdeth of another by some dutie or other , which is called seruice , and of this seruice and the diuersitie thereof , see chivalrie and seruice . he that will learne from what fountaine these feuds or fees did first spring let him read antonius contius his first chapter de methodo feudorum , where he shal receiue great light for his guide into so obscure a dungeon . see liege . this word , ( fee ) is sometime vsed with vs , for the compas or circuit of a lordship or maner . bracton . lib. . cap. . in these words : in eadem villa & de eodem feodo . thirdly it is vsed for a perpetuall right incorporeall : as to haue the keeping of prisons in fee. old . nat . br . fol. . foster in fee eod . fol : . rent granted in fee. eod . fo . shyreeue in fee. ann . ed pri . stat . . ca. . lastly fee signifieth a reward or ordinarie dutie , that a man hath giuen him for the execution of his office , or the performance of his industrie in his art or science : as the lawyer or the phisitian is said to haue his fee , when he hath the consideration of his paines taken , the one with his client , the other with his patient . fee expectant , is by the feudists termed feudum expectativum , or expectatiua , substantiuely vsed , mathaeus de afflictis decis . . nu . . pag. . see expectant . fee fcrm ( feudi firma ) is a compound of fee. whereof see ( fee ) and ( ferm . i. coloma , villa , praedium rusticum , of ( ferme ) commeth fermier du prince . i. manceps , redemptor publicorum vectigalium , publicanus , ) feeferm signifieth in our common lawe , land held of another in fee , that is in perpetuitie to himselfe and his heires , for so much yearely rent , as it is reasonably worth , more or lesse , so it be the fourth part of the worth , old tenurcs , see exposition of the statute of glocester anno . ed. pri . without homage , fealtie or other seruices , other then be especially comprised in the feofment , but by fitzh . it seemeth that the third part of the value may be appointed for the rent , or the finding of a chaplaine to sing diuine seruice , &c. nat . br . fol. . c. and the nature of it is this , that if the rent be behind and vnpaid for the space of two yeares , then the feoffour or his heires haue action to recouer the lands as their demesnes : britton ca. . nu . . but obserue out of west . symbol . parte . lib. . sect . . that the feofment may containe seruices and suite of court , as well as rent : and the author of the new terms of law , saith , that feeferm oweth fealtie , though not expressed in the feofment , for that fealtie belongeth to all kind of tenures : this is neere the nature of that , which among the civilians is called ( ager vectigalis , qui in perpetuum licetur . i. hac lege vt quam diu pro eo vectigal pendatur , tam diuneque ipsis qui conduxerunt , neque iis qui in locum eorum successerunt , auferri eum liceat . l. . Π. siager vectigalis , &c. feede ( feida alias faida ) signifieth in the german toung guerram . i. ( capitales inimicitias vel bellum ) hotoman disputat : de feudis ca. . b. foemina dicitur faidam non facere . gloss : in § . vlt. de lege conradi lib. . de feudis , by reason that women by the law , are not subiect to warfare , to battell or proclamatiō made for that cause . skene de verbo : signif . verbo assidatio . m. lamberd in his explication of saxon words writeth it ( feeth ) and saith likewise , that it signifieth capitales inimicitias , and also that ( feud ) vsed now in scotland and the north parts of england , is the same , and that is , a combination of kindred to reuenge the death of any of their blood against the killer and all his race . felonie ( felonia ) seemeth to come of the french ( felonnie . ā . impetuositas , atrocitas , immisericordia ) felonia ( saith hotomande verbis feudalibus ) non praescisè contumaciam vasalli in dominum , huiusue in vasallum perfidiam significat , verum quoduis capitale facinus . and againe . felonia gothis & longobardis dicitur quod germanis hodie schelmarey , latinis scelus . s. ed. cooke saith thus . ideo dicta est felonia qua fieri debet felleo animo . li. . fo . . b. hostiensis in sua summa titulo , de feudis , and others speak of this to this effect . felonia , aliàs fallonia est culpa vel iniuria , propter quam vasallus amittit feudum . sedhec respicit dominum feudi . est & alia fallonia quae non respicit dominum , sc . quando vasallus interficit fratrem vel filium suum , vel filium fratris , vel aliud crimen commisit quod parricidii appellatione continetur . & plures aliae falloniae tam respicientes dominum , quàm alios propter quas feudum amittitur ibi not antur . we account any offence felonie that is in degree next vnto petit treason , and compriseth diuers particulars vnder it , as murder , theft , killing of a mans selfe , sodometrie , rape , wilfull burning of houses , and diuers such like , which are to be gathered especially out of statutes , whereby many offences are dayly made felonie , that before were not . felonie is discerned from lightter offences by this , that the punishment thereof is death . how be it this is not perpetuall . for petit larcenie ( which is the stealing of any thing vnder the valew of twelue pence ) is felony , as appeareth by broke titulo coron . num . . his reason is , because the indictment against such a one must runne with these words , ( felonicè cepit ) and yet is this not punished by death though it be losse of goods . any other exception i know not , but that a man may call that felony , which is vnder petit treason , and punished by death . and of this there be two sorts : one lighter , that for the first time may be releeued by cleargie , another , that may not . and these you must also learne to know by the statutes : for cleargie is allowed , where it is not expressely taken away . of these maters reade stawnfords first booke of his pl. cor . from the end of the second chapter , to the . and the statutes whereby many offences be made felonie , since he writ that learned booke . see also lamberds iustice of peace , lib. . cap. . in a table drawne for the purpose . as also lib. . cap. . pag. . and crompton in his iustice of peace . fol. . &c. felonie is also punished by losse of lands not entayled , and goods or chatels , as well real as personall : and yet the statutes make difference in some cases touching lands , as appeareth by the statute , anno h. . cap. . felonie ordinarily worketh corruption of bloud , though not , where a statute ordaineth an offence to be felonie , and yet withall saith , that it shall not worke corruption of bloud . as anno . eliz. cap. . how many wayes felonie is comitted , see cromptons iustice of peace . pag. . &c. feyre . see fayre . felo de se , is he that committeth felonie by murthering himselfe . see cromptons iustice of peace fol. . and lamberds eirenarcha . lib. . cap. . pag. . fencemoneth , is a moneth , wherein it is vnlawful to hunt in the forest , because in that moneth the female deere do faune : and this moneth beginneth . dayes before midsomer , and endeth . dayes after . so that to this moneth there be . daies . see manwood parte prim . of his forest lawes . pag. . but more at large parte secunda . cap. per totum . it is also called the defence moneth , that is , the forbidden moneth , and the word defence is vsed in like sort . west . . cap. . anno . ed. . in these words : all waters where salmons be taken , shall be in defence for taking of salmons from the natiuitie , &c. fennycricke , or rather fenegreeke , ( foenum graecum ) is a medicinall plant or herbe , so called , because it groweth like hey , and commeth out of greece . of this you may reade more in gerrards herball . lib. . cap. . the seede therof is reckoned among drugs , that are to be garbled . an . . iacob . cap. . feofment ( feoffamentum ) by the opinion of sir thomas smith de repub. anglor . lib. . cap. . and m. west part . prim . symbol . lib. . sect . . is descended from the gottish word ( feudum ) which you haue interpreted in ( fee ) and signifieth ( donationem feudi ) but ( as m. west also addeth ) it signifieth in our common lawe , any gift or graunt of any honors , castels , maners , mesuages , lands , or other corporall and immoueable things of like nature , vnto another in see simple , that is to him and his heires for euer , by the deliuerie of seisin and possession of the thing giuen , whether the gift be made by word or writing . and when it is in writing , it is called a deed of feofment , and in euery feofment the giuer is called the feaffour feoffator , ) and he that receiueth by vertue thereof , the feoffee ( feoffatus ) and litleton saith , that the proper difference betweene a feoffour and a donour is , that the feoffour giueth in fee-simple , the donour in fee-taile . lib. . cap. . feodarie , aliâs , feudarie , aliâs , feudatarie , ( feudatarius ) is an officer authorized and made by the master of the court of wards and liueries , by leters patents vnder the seale of that office . his function is to be present with the escheater at the finding of any office , and to giue euidence for the king as well cōcerning the valew , as the tenure , and also to suruey the land of the ward , after the office found , and to rate it . he is also to assigne the kings widowes their dowers and to receiue all the rents of the wards lands , with in his circuit , and to answer them to the receiuer of the court of wardes and liueries . this officer is mentioned anno . h. . cap. . ferdfare , significat quietantiam eundi in exercitum . fleta libr. pri . cap. . ferdwit , significat quietantiam murdri in exercitu . fleta libr. prim . cap. . ferm ( firma ) commeth of the french ( ferme , i. colonia , villa , praedium , ) and signifieth with vs , house or land , or both , taken by indenture of lease , or lease parol . it may likewise not vnaptly be coniectured , that both the french and english word came from the latine ( firmus ) for ( locare ad firmum ) i find somtime to signifie with others , as much as ( to set or let to farme ) with vs. the reason whereof may be in respect of the sure hould they haue aboue tenents at will. v. vocabul . vtriusque iuris . verbo afflictus . the authour of the new termes of lawe , deriueth this word from the saxon ( feormian ) which signifieth to feed or yeeld victuall . for in auncient time the reseruations were as well in victuals as money , which i leaue to the iudgemet of the reader . how many wayes ferme is takē , see plowden . casu wrothesley . fol. . a. b. feudarie . see feodarie . fieri facias , is a writ iudiciall , that lyeth at all times within the yeare and day , for him that hath recouered in an action of debt or dammages , to the shyreeue , to commaund him to leuie the debt or the dammages of his goods , against whome the recouerie was had . this writ hath beginning from westm . . cap. anno . ed. . see old nat . br . fol. . see great diuersitie thereof in the table of the register iudiciall . verbo . fieri facias . fifteenth ( decimaquinta ) is a tribute , or imposition of mony laide vpon euery city , borough , and other towne through the realme , not by the polle , or vpon this or that man , but in general , vpon the whole city or towne , so called , because it amounteth to one fifteenth parte of that , which the city or towne hath bene valued at of ould . this is now a dayes imposed by parlament : and euery towne through the realme , great or lesse , knoweth what a fiftenth for themselues doth amount vnto , because it is perpetuall : whereas the subsidie , which is raised of euery particular mans lands or goods , must needs be vncertaine , because the estate of euery seuerall man is so ticklish and vncertaine . and in that regard am i driuen to thinke that this fifteenth is a rate aunciently laide vpon euery towne , according to the land or circuit belonging vnto it . whereof m. camden hath many mentions in his britannia . in stead of the rest take a fewe page . . of wels in somerset shire he writeth thus . quo tempore , vt testatur ceasualis angliae liber , episcopus ipsum oppidum tenuit , quod pro quinquiginta hidis geldauit : and pag. . of bathe . geldabat pro viginti hidis , quando schira geldabat . thirdly , pa. . of ould sarisbury thus pro quinquaginta hidis geldabat . and these rates were taken out of domes day in the eschequer . so that this seemed in ould time , to be a yearely tribute in certainty , whereas now , though the rate be certaine , yet it is not leuied but by parlament . see taske , see quinsie me . filazer ( filazarius ) commeth of the french ( filace . i. filum , filacium ) it is an officer in the common plees , whereof there be . in number : they make out all originall proces , as well reall as personall and mixt : and in actions meerely personall , where the defendants be returned or sommoned , there goeth out the distresse infinite vntill apparence . if he be returned nihil , then proces of capias infinite , if the plaintife will , or after the third capias , the plaintife may goe to the exigenter of the shire , where his originall is grounded , and haue an exigent and proclamation made : and also the filazer maketh foorth all writs of viewe in causes , where the view is prayed : he is also allowed to enter the imparlance , or the generall issue in common actions , where apparence is made with him , and also iudgement by confession in any of them before issue be ioyned , and to make out writs of execution thereupon . but although they entred the issue : yet the protonotarie must enter the iudgement , if it be after verdict . they also make writs of supersedeas , in case where the defendant appeareth in their offices , after the capias awarded . filctale . see sothale . file ( filacium ) is a threed or wyer , whereon writs , or other exhibits in courts , are fastened for the more safe keeping of them . finders . anno . ed. . stat . . cap. vnico . anno . r. . cap. . seeme to be all one with those , which in these dayes we call searchers . fine ( finis ) commeth of the french ( fin . i. finis ) and hath diuers applications in our commō lawe : sometime being vsed for a formall or ceremonious conueyance of lands or tenements , or ( as west saith , titulo fines . sect . . ) of any thing inheritable , being in esse tempore finis , to the end to cut off all controuersies . west parte . symb . sect . . defineth a fine in this signification : couenants made before iustices , and entred of record . and out of glanvile thus lib. . cap. . finis est amicabilis compositio & finalis concordia , ex consensu & licentia domini regis , vel eius iusticiariorum . and lib. . cap. . talis concordia finalis dicitur , eo quod finem imponit negotio , adeò vt neutra pars litigantium ab eo de caetero poterit recedere . and out of bracton , lib. . tract . . cap. . num . . thus : finis ideò dicitur finalis concordia , quia imponit finem litibus , & est exceptio peremptoria . the authour of the new termes of lawe , defineth it to be a finall agreement had betweene persons concerning any land or rent , or other thing , whereof any suite or writ is betweene them hanging in any court . see the new booke of entries , verbo fines . this fine is of so high a nature , that bracton . lib. . cap. . num . . hath these words of it . item immediate pertinet ad regem querela finis factae in curia domini regis , & non observatae . et est ratio , quia nemo potest finem interpretari nisi ipse rex , in cuius curia fines fiunt . see also anno . ed. prim . stat . prim . cap. prim . the civilians would call this solemne contract transactionem iudicialem de re immobili , because it hath all the properties of a transaction , if it be considered in his originall vse . v. wesemb . parat . titulo de transact . for it appeareth by the writers of the common lawe aboue named , that it is nothing but a composition or concord acknowledged and recorded before a competent iudge , touching some hereditament or thing immoueable , that earst was in controuersie betweene those , that be parties to the same concord : and that for the better credit of the transaction , being by imputation made in the presence of the king , because it is leuied in his court : and therefore doth it bind women couert being parties , and others whom ordinarily the lawe disableth to transact , onely for this reason , that all presumption of deceipt or euill meaning is excluded , where the king is priuy to the acte . but discourse of wit and reason , hath in time wrought other vses of this concord , which in the beginning was but one : as namely , to secure the title that any man hath in his possession against all men : to cut off intayles , and with more certaintie to passe the interest or the title of any land or tenement , though not controuerted , to whome we thinke good , either for yeares or in fee. in so much that the passing of a fine , in most cases , now is it but mera fictio iuris , alluding to the vse for the which it was invented , and supposing a doubt or controuersie , where in truth none is : and so not onely to worke a present prescription against the parties to the concord or fine , and their heires , but within fiue yeares against all others , not expresly excepted ( if it be leuied vpon good consideration , and without couin ) as women couert , persons vnder . yeares , or prisoners , or such as be out of the realme at the time when it was acknowledged . touching this mater , see the statutes . anno . rich. . cap. anno . h. . cap. . anno . h. . cap. . & anno . elizab. ca. . this fine hath in it fiue essentiall parts : the originall writ taken out against the conizour : the kings licence giuing the parties libertie to accord , for the which he hath a fine called the kings siluer , being accompted a part of the crownes reuenew . thirdly , the concord it selfe , which thus beginneth : et est concordia talis , &c. fourthly , the note of the fine , which is an abstract of the original concord , and beginneth in this maner : sc. inter r. querentem . & s. & e. vxorem eius , deforciantes , &c. fifthly , the foot of the fine , which beginneth thus : hac est finalis concordia facta in curia domini regis , apud westm . à die paschae in quindecim dies , anno &c. so as the foote of the fine includeth all , containing the day , yeare , and place , and before what iustice the concord was made . coke vo . . casu teye . fol. . & . this fine is either single or double : a single fine , is that by which nothing is graunted or rendred backe againe by the cognizeese to the cognizours , or any of them . a double fine containeth a graunt and render backe againe , either of some rent , common , or other thing , out of the land , or of the land it selfe , to all or some of the cognizours , for some estate , limiting thereby many times remainders to straungers , which be not named in the writ of couenant . west vbi supra , sect . . againe , a fine is of the effect , deuided into a fine executed , and a fine executory . a fine executed is such a fine , as of his owne force giueth a present possession ( at the least in law ) vnto the cognizee , so that he needeth no writ of ( habere facias seisinam ) for the execution of the same , but may enter ; of which sort is a fine ( sur cognizance de droit come ceo que il ad de son done ) that is vpon acknowledgement , that the thing mentioned in the concord be ius ipsius cognizati , vt illa quae idem habet de dono cognitoris . west . sect . . k. and the reason of this seemeth to be , because this fine , passeth by way of release of that thing , which the cognizee hath already ( at the least by supposition ) by vertue of a former gift of the cognizour . cokes reports li. . the case of fines fo . . b. which is , in very deed , the surest fine of all . fines executorie be such , as of their owne force doe not execute the possession in the cognizeese , as fines sur cognizance de droit tantùm . fines sur done , graunt , release , confirmation , or render . for if such fines be not leuied , or such render made vnto them , that be in possession at the time of the fines leuied , the cognizees must needs siew writs of ( habere facias seisinam ) according to their seuerall cases , for the obtaining of their possessions , except at the leuying of such executory fines , the parties , vnto whom the estate is by them limited , be in possession of the lands passed thereby : for in this case such fines doe inure by way of extinguishment of right , not altering the estate or possession of the cognizee , but perchaunce bettring it . west . vbi supra , sect . . touching the forme of these fines , it is to be considered vpon what writ or action the concord is to be made , and that is , most commonly , vpon a writ of couenant : and then first there must passe a paire of indentures betweene the cognizour and cognizee , whereby the cognizour couenanteth with the cognizee , to passe a fine vnto him , of such or such things by a day set down . and these indentures , as they are first in this proceeding , so are they saide to lead the fine ; vpon this couenant , the writ of couenant is brought by the cognizee against the cognizour , who therevpon yeeldeth to passe the fine before the iudge , and so the acknowledgement being recorded , the cognizout and his heires are presently concluded , and all straungers not excepted , after fiue yeares once passed . if the writ wherevpon the fine is grounded , be not a writ of couenaunt , but of warrantia chartae , or a writ of right , or a writ of mesn , or a writ of custome and seruices ( for of all these fines may also be founded . ( west . vbi supra , sect : . ) then this forme is obserued : the writ is serued vpon the party that is to acknowledge the fine , and then he appearing doth accordingly : see dier , fo . . nu . . this word ( fine ) sometime signifieth a summe of money , paide for an income to lands or tenements let by lease : sometime an amends , pecuniarie punishment , or recompence vpon an offence committed against the king and his lawes , or a lord of a maner . in which case , a man is said facere finem de transgressione cum rege , &c. regist . iud. fol. . a. and of the diuersity of these fines with other mater worth the learning , see cromptons iustice of peace , fol. . b. . . and lamberds eirenarcha libro . . ca . pa. . but in all these diuersities of vses , it hath but one signification ; and that is a finall conclusion or ende of differences betweene parties . and in this last sence , wherein it is vsed for the ending and remission of an offence , bracton hath it li. . ca. . nu . . speaking of a common fine that the countie payeth to the king , for false iudgemēts or other trespasses , which is to be assessed by the iustices in eyre before their departure , by the oath of knights and other good men , vpon such as ought to pay it : with whome agreeth the statute anno . . ed. pri . ca. . there is also a common fine in leetes . see kitchin. fo . . a. v. common fine . see fleta . l. . ca. . fines pro licentia concordandi , anno . h. . c. . see fine . fine force , seemeth to come of the french adiectiue ( fin ) and the substantiue ( force . i. vis ) the adiectiue ( fin ) signifieth sometime as much as craftie , wilie or subtill , sometime as much as , artificiall , curious , singular , exact , or perfect . as ( rien contrefaict fin . i. nihil simulatum aut adimitationem alterius expressum , potest esse exactum , vel ita absolutum , quin reprehensionem vel offensionem incurrat , as is set downe in that worke , truly regal , intituled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . pa. . so that this ( fine force ) with vs , seemeth to signifie an absolute necessitie or constreint , not avoidable . and in this sence it is vsed , old . nat . br . fol. . and in the statute anno . . h. . ca. . in perkins dower . fo . . and plowden . fo . . coke . vol. . fol. . a. fine adnullando levato de tenemento quod fuit de antiquo dominico , is a writ to iustices , for the disanulling of a fine levied of lands holding in auncient demesn , to the preiudice of the lord : register originall . fol. . b. fine capiendo pro terris , &c. is a writ lying for one , that vpon conviction by a iury hauing his lands and goods taken into the kings hand , and his body committed to prison , obteineth fauour for a summe of money &c. to be remitted his imprisonment , and his lands and goods to be redeliuerd vnto him . register . orig . fo . . a. fine levando de tenementis tentis de rege in capite , &c. is a writ directed to the iustices of the cōmon plees , whereby to licence them to admit of a fine for the sale of land holding in capite , regist . originall , fol. . a. fine non capiendo pro pulchre placitando , is a writ to inhibit officers of courts , to take fines for faire pleading , register original . fol. . see beau pleder . fine pro redisseisina capienda , &c. is a writ , that lieth for the release of one laid in prison for a redisseisin , vpon a reasonable fine . register . originall fol. . finarie . see blomarie . finours of gold and siluer , be those that purifie and part those metals from other courser , by fire and water . anno . . h. . ca. . they be also called parters in the same place , sometime departers . fireboote , for the composition looke hayboote . it signifieth allowance or estovers of woods , to maintaine competent fire for the vse of the tenent . first fruites ( primitiae ) are the profits of every spirituall liuing for one yeare , giuen in auncient time to the pope throughout all cristendome : but by the statute anno . h. . cap. . translated to the prince , for the ordring wherof , there was a court erected , an . . h. . ca. . but this court was dissolued . anno . pri . mar. sess . . ca. . & sithence that time , though those profits be reduced againe to the crowne , by the statute anno . eliz. ca. . yet was the court neuer restored , but all maters therein wont to be handled , were transferred to the exchequer . see annats . fishgarthe , anno . h. . ca. . fitche , see furre . fitzherberd , was a famous lawyer in the daies of king henry the eight , and was chiefe iustice of the common plees , he wrot two worthie bookes , one an abridgement of the common lawes , another intituled de natura brevium . fled●it , commeth of the saxon word ( fled ) that is a fugitiue , & wit , which some make but a termination , signifiing nothing of it selfe : how be it others say , it signifieth a reprehen sion , censure , or correction : it signifieth in our auncient lawe , a discharge or freedome from amercements , when one hauing been an outlawed fugitiue commeth to the peace of our lord the king , of his owne accord . rastall , exposition of words : or being licensed : newe termes of lawe . see bloodwit , and childwit : see fletwit . fleete ( fleta ) is a famous prison in london , so called ( as it seemeth ) of the riuer , vpon the side whereof it standeth , camden britannia , pag. . vnto this none are vsually committed , but for contempt to the king and his lawes , or vpon absolute commaundemēt of the king , or some of his courts , or lastly vpō debt , when men are vnable , or vowilling to satisfie their creditours . flemeswit or rather ( fleherswit ) commeth of the saxon word ( flean ) which is a contract of ( flegen ) that is , to flie away . it signifieth with our lawyers , a libertie or charter , whereby to chalenge the catel or amercements of your man a fugitiue : rastall exposition of words . see bloodwit . fleta writeth this word two other waies , as ( flemenesfree vie or flemesfreicthe , and interpreteth it , habere catalla fugitivorum . li. . ca. . fleta , is a feigned name of a learned lawyer , that writing a booke of the common lawes of england and other antiquities in the fleete , termed it thereof fleta : he seemeth to haue liued in ed. the . time and edw. the . idem , li. . ca. . § . qui ceperint . li. . ca. . § . item quod nullus . fletwit , aliâs fredwit . skene de verborum significatione . verb. melletum . saith , that ( flichtwit ) is a libertie to courts , and to take vp the amercements pro melletis . he giueth the reasō because ( flicht ) is called fliting in french ( melle ) which sometime is conioyned with hand-strookes : and in some bookes placitum de melletis , is called the moote or plee of beating or striking . flight see finer . florences , anno . r. . ca. . a kinde of cloth so called . flotsen aliâs ( flotzam ) is a word proper to the sease , signifiing any goods that by shipwrecke be lost , and lie floting or swimming vpon the toppe of the water , which with ietson and lagon and shares be giuen to the lord admirall , by his leters patents . ietson is a thing cast out of the shippe being in daunger of wrecke , and beaten to the shore by the waters , or cast on the shore by the marriners . coke vol. . fo . . a. lagon aliâs lagam vel ligan , is that which lyeth in the bottome of the sea , coke ibi . shares are goods due to more by proportion . foder ( fodrum ) signifieth in our english tongue , a course kinde of meate for horses and other catell . but among the feudists , it is vsed for a prerogatiue that the prince hath , to be provided of corn and other meate for his horses by his subiects towards his wars , or other expeditions . arnoldus clapmarius . de arcanis imperii . lib. . ca. . and reade hotoman de verbis feudalibus . litera . f. folgheres , or rather folgers , be folowers , if we interpret the word according to the true signification : bracton saith it signifieth , eos qui alii deserviunt . lib. . tract . . cap. . folkmoote , is a saxon word , compounded of folk . i. populus & gemettan . i. convenire . it signifieth ( as m. lamberd saith in his explication of saxon words , verbo ( conuentus ) two kind of courts , one nowe called the countie court , the other called the shyreeues turne : this word is still in vse among the londoners , and signifieth celebrem ex omni ciuitate conuentum : stowe in his suruey of london . but m. manwood in his first part of forest lawes . pag. . hath these words . folkemote is the court holden in london , wherein all the folke and people of the citie did complaine on the mayor and the aldermen , for misgouernment within the citie . forbarre , is for euer to depriue . an . . ric. . ca. . force ( forcia ) is a french word , signifiing ( vim , nervositatem , fortitudinem , virtutem ) in our common lawe , it is most vsually applied to the euill part , and signifieth vnlawfull violence . west thus defineth it : force is an offence , by which violence is vsed to things or persons . parte . symbol . titulo . inditements . sect . . where also he diuideth it thus : force is either simple or compound . simple is that which is so committed , that it hath no other crime adioyned vnto it ; as if one by force doe onely enter into an other mans possession , without doing any other vnlawfull act there . mixt force , is that violence , which is committed with such a fact , as of it selfe onely , is criminall ; as if any by force enter into another mans possession , and kill a man , or ravish a woman there , &c. he farder diuideth it into true force , and force after a sort , and so proceedeth to diuers other braunches worth the reading , as forcible entry , forcible deteining , vnlawfull assembly , rowtes , riets , rebellions , &c. forcible deteining or withholding of possession , is a violent act of resistance by strong hand of men weaponed with harnes , or other action of feare , in the same place or else where , by which the lawfull entrie of iustices or others is barred or hindred . west parte . symbol . titulo inditements , sect . . m. of this see cromptons iustice of peace , f. . b &c. vsque ad . forcible entrie ( ingressus manu fortifactus ) is a violent actuall entrie into an house or land , &c. or taking a distresse of any person , weaponed , whither he offer violence or feare of hurt to any there , or furiously driue any out of the possession thereof : west parte symbol . titulo inditements , sect . . l. of this see cromptons iustice of peace , fol. . b. . &c. vsque . it is also vsed for a writ grounded vpon the statute . anno . h. . ca. . whereof reade fitz. nat . br . at large , fol. . see the newe booke of entries , verbo forcible entrie , see lamb. definitiō in certen cases . eiren. l. . c. . p. . forein ( forinsecus ) commeth of the french ( forain . i. exterus , externus ) it is vsed adiectiuely in our common lawe , and ioyned with diuers substantiues in sences not vnworthy the exposition , as forein mater , that is mater triable in another countie , pl. cor . fo . . or mater done in another countie , kitchin. fol. . foreinplea ( forinsecum placitum ) . i. a refusal of the iudge as incompetent , because the mater in hand was not within his precincts , kitchin. fol. . & anno . h. . ca. . & anno . eiusdem . ca. . & . forein aunswer , that is , such an answer , as is not triable in the countie where it is made . anno . h. . ca. . forein seruice ( forinsecum servitium ) that is such service , whereby a meane lord holdeth ouer of another , without the compasse of his owne fee. brooke . titulo tenures . f. . nu . . & . & kitchin , fol. . or else that which a tenent performeth , either to his owne lord , or to the lord paramount out of the fee. for of these seruices , bracton speaketh thus , lib. . cap. . nu . . item sunt quaedam seruitia , quae dicuntur forinseca , quamvis sunt in charta de feoffamento expressa & nominata : & quae ideo dici possunt forinseca , quia pertinent ad dominum regem , & non ad dominum capitalem , nisi cum in propria persona profectus fuerit in seruitio : vel nisi cum pro seruitio suo satisfecerit domino regi quocunque modo , & fiunt in certis temporibus , cùm casus & necessitas evenerit , & varia habent nomina & diuersa : quandoque enim nominantur forinseca , large sumpto vocabulo , quoad seruitium domins regis , quandoque scutagium , quandoque seruitium domini regis , & ideo forinsecum dici potest , quia fit & capitur foris , siue extra seruitium quod fit domino capitali . v. broke tenures . . forein seruice , seemeth to be knights seruice or escuage vncertaine . perkins reseruations . forein attachement ( attachiamentum forinsecum ) is an attachement of foriners goods , found within a libertie or citie , for the satisfaction of some citizen , to whome the said foriner oweth money . forein apposer ( forinsecarum oppositor ) is an officer in the exchequer , to whom all shyreeues and baylifes doe repaire , hy him to be opposed of their greene waxe , and from thence draweth downe a charge vpon the shyreeue and baylife to the clerk of the pipe . forest ( foresta ) is a french word , signifiing a great or vast wood . lieu forestier & saüuage : locus syluestris & saltuosus . the writers vpon the common law define it thus : foresta est locus vbi ferae inhabitant vel includuntur . glos . in ca. cum dilecti . extra . de donatio . & felinus in ca. rodolphus . versu , quid autem foresta . extra de rescriptis . speaketh to the same effect . some other writers doe say , it is called foresta , quasi ferarum statio , vel tuta mansio ferarum . but as it is taken with vs , m. manw. in his secōd part of forest lawes , cap. . nu . . thus defineth it : a forest is a certaine territorie of wooddy grounds & fruitfull pastures , priviledged for wild beasts , and foules of forest , chace , and warren , to rest and abide in , in the safe protection of the king , for his princely delight and pleasure : which terrioritie of ground so priuiledged , is meered and bounded with vnremoueable markes , meeres , and boundaries , either knowne by mater of record , or else prescription , and also replenished with wild beasts of venerie , or chase , and with great coverts of vert , for the succour of the said wild beasts , to haue their aboad in : for the preseruation & continuance of which said place , togither with the vert and venison , there are certaine particular lawes , priviledges , and officers , belonging to the same , meete for that purpose , that are onely proper vnto a forest , and not to any other place . the same definition he hath parte . pag. . which though it haue many superfluities , yet it well expresseth the nature of the thing , especially the explication adioyned , which there is set downe by the said author in both places in his first part . pag. . where he fetcheth a forest from such overgrowne antiquitie , alledging for it the second booke of kings , ca. . ver . . & ca. . vers . . and the . psalme vers . . the . ver . . he taketh licence to sport himselfe . for though our english translation haue the word forest , to expresse the vastnes of the desert , yet if we looke to the originall idiome , we shall finde no more reason to call those places forests , thē either chases or parks . the maner of making forests , as the same author well setteth downe , parte . . pag. . is this . the king sendeth out his commissiō vnder the broad seale of england , directed to certaine discreete persōs , for the view , perrambulation , meering & bounding of the place , that he mindeth to afforest ; which returned into the chauncerie , proclamation is made throughout all the shire , where the ground lieth , that none shal hunt or chace any maner of wilde bests within that precinct , without the kings speciall licence , after which he appointeth ordinances , lawes , and officers , fit for the preseruation of the vert and venison : and so becommeth this a forest by mater of record . the properties of a forest are these in speciall , first , a forest , as it is truly and strictly taken , cannot be in the hands of any but the king : the reason is giuen by m. manwood , because none hath power to graunt commission to a iustice in eire for the forest , but the king . parte . . pag. . the second propertie , be the courts , as the iustice seate every three yeare , the swainemoote thrice every yeare : idem eodem pag. . & parte . ca. . nu . . & . and the attachement , once every fortie daies . idem eod . pag. . the third propertie may be the officers belonging vnto it , for the preservation of the vert and venison , as first the iustices of the forest , the warden or keeper , the verders , the foristers , agistours , regarders , bailiffes , bedels and such like , which you may see in their places . see manwood part . . ca. . nu . . & . but the cheife propertie of a forest , both by m. manwood . parte . pa. . and m. crompton pag. . is the swainmote , which ( as they both agree ) is no lesse incident vnto it , then the court of pyepowders to a faire . other courts and offices are not so requisite , in those forests that are in the hands of subiects , because they be not truly forests : but if this faile , then is there no thing of a forest remaining , but it is turned into the nature of a chace . see chace . i reade of thus many forests in england . the forest of windsour in berkshire : cambd. britan. pag. . of pickering . crompton . of shirwood idem fol. . of englewood in cumberland . anno . . h. . ca. . & crompton fol. . of lancaster . idem . fol. . of wolemore . stowes annals . pag. . of gillingham idem . pag. . of knaresborow . anno . . h. . ca. . of waltham . camd. pag. . of breden . idem , pag. . of whiteharte idem , pag. . of wiersdale . idem pag. . and lownsedall ibidem . of deane . idem . pag. . & & anno . h. . ca. . & anno . h. . cap. . of saint leonards in southsex . manwood parte . . pa. . of waybridge & sapler . idem . eodem . pa. . of whitvey . pag. . of fekenham , camd. pa . of rockingham . idem pag. . forest de la mer. idem , pag. . of huckstowe . idem pa. . of haye . manwood part . . pag. . of cantselly , eadem pag. of ashdowne in the county of sussex . anno . . h. . ca. . forests of whittilwood and swasie in the countie of northampton . anno . h. . ca. . of fronselwood in com . somerset . cooke li. . cromw . case . f. . b. i heare also of the forest of exmore , in deuonshire . there may be more which he that listeth , may looke for . forester ( forestarius ) is a sworn officer of the forest , appointed by the kings leters patents , to walke the forest both earely and late , watching both the vert and venison , attaching and presenting all trespassers against them , within their owne bayliwicke or walke : whose oath you may see in crompton . fol. . and though these leters patents be ordinarily graunted , but quam diu bene se gesserint , yet some haue this graunt to thē and their heires , and thereby are called foristers or fosters in fee. idem , fol. . & . et manwood parte prima . pag. . whome in latine crompton calleth foristarium feudi . fol. . foreiudger , ( forisiudicatio ) signifieth in the common lawe , a iudgement , whereby a man is depriued , or put by the thing in question . it seemeth to bee compounded of ( fo rs . i. praeter ) & ( iuger . i. iudicare . ) bracton lib. . tract . . cap. . hath these words : et non permittas quòd a. capitalis dominus feudi illius , habeat custodiam haeredis , &c. quia in curia nostra forisiudicatur de custodia , &c. so doth kitchin vse it . fol. . and old nat . bre . fol. . & . and the statute . anno . ed. . cap. . and anno . r. . cap. . foriudicatus with authors of other nations signifieth as much as ( banished ) or as ( deportatus ) in the auncient romaine lawe , as appeareth by vincentius de franchis , descis . . mathaeus de afflictis . lib. . feudorum . rub. . pag. . foregoers be pourveyours , going before the king or queene , being in progresse , to prouide for them , anno . ed. . cap. . forfeiture , ( forisfactura ) commeth of the french word ( forfaict . i. scelus ) but signifieth in our language , rather the effect of transgressing a penall lawe , then the transgression it selfe : as forfeiture of escheates . anno . ed. . cap. . statut. de proditionibus . goods confiscate , and goods forfeited differ . stawnf . pl. cor . fol. . where those seeme to be forfeited , that haue a knowne owner , hauing committed any thing whereby he hath lost his goods ; and those confiscate , that are disavowed by an offendour , as not his owne , nor claymed by any other . i thinke rather , that forfeiture is more generall , and confiscation particular , to such as forfeit onely to the princes exchequer . reade the whole chapter . lib. . cap. . full forfeiture ( plenaforisfactura ) otherwise called ( plena vita ) is forfeiture of life and member , and all else that a man hath . manwood parte prim . pag. . the canon lawyers vse also this word . for forisfacta sunt pecuniariae poenae delinquentium . glos . in cap. praesbyteri , extra . de poenis . forfeiture of mariage , ( forisfactura maritagii ) is a writ lying against him , who houlding by knights seruice , and being vnder age and vnmaried , refuseth her , whome the lord offereth him , without his disparagement , and marieth another . fitzh . nat . br . fol. . h. i. k. l. register orig . fol. . b. forfeng , quiet antiam prioris prisae designat : in hoc enim delinquunt burgenses londonenses , cum prisas suas ante prisas regis faciunt . fleta lib. . cap. . forgerie . see here next following , forger of false deeds . forger of false deedes , commeth of the french ( forger ) . i. accudere , fabricare , conflare , to beate one an anvile , to fashion , to bring into shape , and fignifieth in our common law , either him that fraudulently maketh and publisheth false writings , to the preiudice of any mans right , or else the writ that lyeth against him , that committeth this offence . fitzh . nat . br . fol. . b. c. calleth it a writ of deceite . see tearmes of law , verbo forger . and wests simbol . parte . . indictments , sectio . . see the new booke of entries . verbo forger . de faits . this is a branch of that which the ciuilians call crimen falsi : nam falsarius est , qui decipiendi causa scripta publica falsificat . speculator . de crimine falsi . falsi crimen propriè dicitur , quod vtilitatis priuatae causa factum est . connanus li. . ca. . nu . . ad esse falsitatis tria requiruntur : mutatio veritatis , dolus , & quod alteri sit nocivum . quorum si alterum desit , falsitas non est punibilis . hostiensis , & azo in suis summis . forister . see forester . formdon ( breve formatum donationis ) is a writ that lyeth for him , that hath right to any lands or tenements by vertue of any entayle , growing from the statute of westm . . cap. . it lyeth in three sorts , and accordingly is called forma donationis , or formdon in the descender : formdon in the reverter , or formdon in the remainder . formdon in the descender lyeth for the recouery of lands , &c. giuen to one and the heyres of his bodie , or to a man and his wife , and the heyres of their two bodies , or to a man and his wife being cosin to the donour , in franke mariage , and afterward alienated by the donee . for after his decease his heyre shall haue this writ against the tenent or alience . fitz. nat . br . fol. . he maketh three sorts of this formdon in the descender : the first is , in the maner now expressed : the second is , for the heire of a coparcener , that alienateth and dieth . fol. the third is called by him ( in simul tenuit ) fol. . which lyeth for a coparcener or heire in gauelkind , before partition against him , to whome the other coparcener or heire hath alienated and is dead . formdon in the reuerter , lyeth for the donour or his heires , where land entayled to certaine and their issue , with condition for want of such issue to reuert to the donour and his heires , against him to whom the donee alienateth , after the issue extinct , to which it was entayled . fitzh . nat . br . fol. . formdon in the remainder lyeth , where a man giueth landes in tayle , the remainder to another in tayle , and afterward the former tenent in tayle dieth without issue of his bodie , and a stranger abateth , then he in the remainder shall haue this writ . fitz. nat . br . fol. . see the register original . fol. . . . of this see the new booke of entries . verb. formdon . forsechoke , seemeth to signifie originally as much as forsaken in our moderne language , or ( derelictum ) with the romaines . it is especially vsed in one of our statutes , for land or tenements seised by the lord , for want of seruices due from the tenent : and so quietly held and possessed beyond the yeare and day . as if we should say , that the tenent which seeing his land or tenements taken into the lords hand , and possessed so long , taketh not the course appointed by lawe to recouerthem , doth in due presumption of lawe disavow or forsake whatsoeuer right he hath vnto them . see the statute anno . ed. . cap. vnico . forstall , is to be quit of amerciaments and catels arrested within your land , and the amerciaments thereof comming . new termes of lawe . forstalling ( forstallatio ) is partly french , for ( estaller ) is in that tongue , as much as ( merces exponere , expedire , explicare ) or to shew wares in a market or faire . it signifieth in our common law , the buying or bargaining for any victuals or wares comming to be sould toward any faire or market , or from beyond the seas toward any city , port , hauen , creeke , or roade of this realme , and before the same be there . anno . . h. . stat . . west . parte . simbol . titulo indictments . sect . . forstaller , in cromptons iurisdiction , fol. . is vsed for stopping of a deere broken out of the forest , from returning home againe , or laying betweene him and the forest , in the way that he is to returne : see regratours and engrossers . see cromptons iustice of peace . fol. . a. the author of the new terms of law defineth it thus . forstalling ( forstallamentum ) is the buying of corne , cattell , or other merchandies by the way , as it commeth toward the faire or market to be sould , to the intent to sell the same againe at a more high and deere price . fleta saith thus of it , significat obtrusionem vtae vel impedimentum transitus & fugae aueriorum , li. . cap. . fortescue , was a learned lawyer , & lord chauncelor in henry the . dayes : who writ a booke in the commendation of our common lawes . fortlet ( forteletum ) commeth nete the french ( fortelet . i. valenticulus , forticulus ) and signifieth in our common lawe , a place of some strength . old nat . br . fol. . this in other countries is written ( fortalitium ) and signifieth ( castrum . ) scraderus select . & practabil . quest . § . . nu . . & . fother , is a weight of twenty hundred , which is a waine or cartloade . speight in his annot. vpon chawcer . fourche ( assorciare ) seemeth to come of the french , ( fourcher . i. titubare liuguà ) and signifieth in our common lawe , a putting off , prolonging , or delay of an action . and it appeasieth no vnpleasant metaphor : for as by stammering we draw out our speech , not deliuering . that we haue to say in ordinary time , so by sourching we prolong a suite that might be ended in a shorter space . to sourch by essoine . westm . . cap. . anno . ed. prim . where you haue words to this effect : coparceners , ioint-tenants , and tenents in common , may not sourch by essoine to essoine seuerally , but haue only one essoine , as one sole tenent may haue . and anno . ed. . ca. . you haue it vsed in like sort . foutgeld , is a word compounded of these two german words ( fous . i. pes , and ( gyldan . i. solvere ) and it signifieth an amercement for not cutting out the balles of great dogges feet in the forest . see expeditate . and to be quit of footegeld is a priuiledge to keepe dogges within the forest , vnlawed , without punishment or controlment . cromptons iurisdict . fol. . manwood parte pri . of his forest lawes , pag. . fowles of warren . see warren . founder , is he that melteth mettall , and maketh any thing of it , by casting it into a mold , &c. anno . rich. . cap. . deriued of the verbe ( fundere ) to powre . franchise , ( libertas , franchesia ) commeth of the french ( franchise ) so signifiing : it is taken with vs for a priuiledge , or an exemption from ordinarie iurisdiction , and sometime an immunitie from tribute . it is either personall or reall . cromp. iurisd . fol. . that is belonging to a personimmediatly , or else by meanes of this or that place , or court of immunitie , whereof he is either chiefe or a member . in what particular things franchises commonly consist , see britton cap. . franchise royall anno . r. . cap. . & anno . h. . cap. . in fine , seemeth to bee that , where the kings writs runne not : as chester and durham , they are called seignories royall . an . . h. . cap. . the authour of the new termes of lawe saith , that franches royall is , where the king graunteth to one and his heires , that they shall be quit of tolle or such like : see franchise in the new booke of entries . see bracton lib. . cap. . see sac. frauk almoine ( libera eleemozyna ) in french ( frank ausmone ) signifieth in our common lawe , a tenure or title of lands . britton cap. . nu . . saith thus of it : franke almoyne is lands or tenements bestowed vpon god , that is , giuen to such people , as bestow themselues in the seruice of god , for pure and perpetuall almes : whence the feoffours or giuers cannot demaund any terrestriall seruice , so long as the lands . &c. remaine in the handes of the feoffees . with this agreeth the grand custumary of normandie . cap. . of this you may reade bracton at large . lib. . cap. . & . see fitzh . nat . br . fol. . see the new booke of entries . verbo . franke almoine . but britton maketh another kind of this land , &c. which is giuen in almes , but not free almes : because the tenents in this are tyed in certain seruices to the feoffor , pritton vbisupra . frank bank ( francus bancus ) in true french , ( franc banc ) signifieth , word for word , a free bench or seate : and among our lawe writers , it seemeth to be vsed for copyhold lands , that the wife being espoused a virgin , hath after the decease of her husband for her dower . kitchin fol. . bracton lib. . tract . . cap. . nu . . hath these wordes : consuetudo est in partibus illis , quòd vxores maritorum defunctorum habeant francum bancum suum de terris sockmannorum , & tenent nomine dotis . fitzher . calleth it a custome , whereby in certaine cities the wise shall haue her husbands whole lands , &c. for her dower . nat. br . fol. . p. see plowden casu newis . fol. . frank chase , ( libera chasea ) is a libertie of free chase , whereby all men hauing ground within that compasse , are prohibited to cut downe wood , or discouer , &c. without the view of the forester , though it be his owne demesne . cromptons iurisdictions , fol. . frank fee ( feudum francum , seu liberum ) is by brooke tit . dimesn . num . . thus expressed : that which is in the hand of the king or lord of any maner , being auncient demesn of the crowne ( viz. the demesnes ) is called frank fee , and that which is in the hands of the tenents , is auncient demesn onely : see the register original . fol. . a. whereby it seemeth , that that is frank see , which a man holdeth at the common lawe to himselfe and his heires , and not by such seruice as is required in auncient demesn , according to the custome of the maner . and again , i find in the same booke fol. . b. a note to this effect , that the lands which were in the handes of king edward the saint , at the making of the booke called doomesday , is auncient demesn : and that all the rest in the realme is called frank fee : with the which note fitzherb . agreeth , na . br . fol. . e. so that all the land in the realme , by this reason , is either auncient demesn , or frank fee. the new expounder of the lawe termes defineth frank fee , to be a tanure in fee simple , of lands pleadable at the common lawe , and not in auncient demesn : see fachineus . lib. . cap. . who defineth feudum francum esse , pro quo nullum seruitium praestatur domino : with whom agreeth zasius de fendis . parte . saying , that therefore it is feudum improprium , quia ab omni seruitio liberum . frank ferme ( firma libera ) is land or tenement , wherein the nature of fee is chaunged by feofment , out of knights seruice , for certaine yearely seruices , and whence neither homage , wardship , mariage , nor releife may be demaunded , nor any other seruice not contained in the feofment . britton . ca. . nu . . see fee ferme . frank law ( libera lex ) see cromptons iustice of peace , fol. . b. where you shall finde what it is , by the contrary . for he that for an offence , as conspiracy , &c. leeseth his franke lawe , is said to fall into these mischiefs : first , that he may neuer be impaneled vppon any iury , or assise , or otherwise vsed in testifiing any truth . next , if he haue any thing to doe in the kings court , he must not approch thither in person , but must appoint his attourney . thirdly , his lands , goods , and chatelsmust be seised into the kings hands : and his lands must be estreaped , his trees rooted vp , and his body committed to prison . for this , the said authour citeth the booke of assises fo . . conspiracy . f. . . ed. . fo . . see conspiracy . frank mariage ( liberū maritagiū ) is a tenurein taile speciall , growing from these words in the gift comprised : sciant &c. me m. h de w. dedrsse & concessisse , & praesenti charta mea confirmasse i. a. filio meo & margeriae vxori eius , filiae verae t. n. in liberū marit agium vnum messuagium &c. west parte i. symbol . li. . sect . . the effect of which words is , that they shall haue the land to them , and the heires of their bodies , and shall doe no fealty to the donour , vntill the fourth degree . see new terms of law . glanuile li. . ca. . & bracton li. . ca. . nu . . where he diuideth maritagium , in liberum & seruitio obligatum . see mariage . fleta giueth this reason why the heires doe no seruice vntill the fourth discent , ne donatores vel eorum haeredes , per homagii receptionem , a reuersione repellantur . and why in the fourth discent and downeward , they shall doe seruice to the donour , quia in quarto gradu vehementer praesumitur , quòd terra non est pro defectu haeredum donatariorum reversura , libro tertio . ca. . in princ . frankpledge ( franoiplegium ) is compounded of ( franc. i. liber ) and ( pleige . i. fideiussor ) and signifieth in our common law , a pledge or surety for free men . for the auncient custome of england for the preseruation of the publique peace , was that euery free borne man , at fourteene yeares of age , after bracton ( religious persons , clerks , knights , and their eldest sonnes excepted ) should finde suerty for his truth toward the king and his subiects , or else be kept in prison , whereupon a certaine number of neighbours became customably bound one for another , to see each man of their pledge forthcomming at all times , or to answere the transgression committed by any broken away . so that whosoeuer offended , it was forthwith inquired in what pledge he was , and then they of that pledge , either brought him forth within . daies to his aunswere , or satisfied for his offence . this was called frank pledge , causa qua supra . and the circuit thereof was called decenna , because it commonly consisted of . houshouldes : and euery particular person thus mutually bound for himselfe and his neighbours , was called decennier , because he was of one decenna or another : this custome was so kept , that the shyreeues , at euery county court , did from time to time take the oaths of yonge ones , as they grew to the age of . yeares , and see , that he were combined in one dozen or another . whereupon this braunch of the shyreeues authority was called visus franciplegu , view of frankpledge . see the statute for view of frankpledge , made anno . . ed. : see deoennier , leete vew of frankpledge , and freoborghe . that this discipline is borowed by vs of the romane emperours or rather lombards , appeareth most manifestly in the second booke of feuds . ca. . vpon which if you reade hotoman , with those authors that he there recordeth , you will thinke your labour well bestowed . reade more of this . viz. what articles were wont to be inquired of in this court , in hornes mirrour of iustices li. . ca. de la veneudes francs pleges , and what these articles were in auncient times , see in fleta . li. . ca. . fredwit see fletwit . free chapell ( libera capella ) by some opinion , is a chapell founded within a parish for the seruice of god , by the deuotion and liberalitie of some good man , ouer and aboue the mother church , vnto the which it was free for the parishioners , to com or not to come , & ēdowed with maintenance by the founder , and therevpon called free : i haue heard others say , and more probably , that those only be free chapels , that are of the kings foundation , and by him exempted from the iurisdiction of the ordinarie : but the king may licence a subiect to found such a chapell , and by his charter exempt it from the ordinaries visitation also . that it is called free in respect it is exempted from the iurisdiction of the diocesan , appeareth by the register originall . fol. . & . these chapels were all giuen to the king : with chaunteries anno . . ed. . ca. . free chapell of saint martin le grand . anno . . eduardi . capite quarto . & anno . . eduard . quarti ca. . free hould ( liberum tenemētum ) is that land or tenement , which a man holdeth in see , see taile , or at the least , for terme of life , bract. li. . ca. . the newe expounder of the lawe termes saith , that free hold is of . sorts . freehould in deede , and freehold in lawe : freehold in deede , is the reall possession of land or tenements in fee , fee tayle , or for life . freehould in lawe , is the right that a man hath to such land or tenements before his entry or seisure . i haue heard it likewise extended to those offices , which a man holdeth either infee or for terme of life . britton defineth it to this effect . frank tenement is a possession of the soile , or seruices issuing out of the soile , which a free man holdeth in fee to him and his heires , or at the least , for tearme of his life , though the soile be charged with free services or others . ca. . free hold is sometime taken in opposition to villenage . bract. li , . ca. . & . m. lamberd ( in his explication of saxon words , verbo terra ex scripto ) saith , that land in the saxons time was called either bockland , that is holden by booke or writing : or folcland , that is holden without writing : the former , he reporteth , was held with farre better conditions , and by the beter sort of tenents , as noble men and gentlemen , being such as we nowe call free hould : the later was commonly in the possession of clownes , being that which wee nowe call at the will of the lord : i finde in the register iudiciall . fol. . a. and in diuers other places , that he which holdeth land vpon an execution of a statute merchant , vntill he be satisfied the debt . tenet vt liberum tenementum sibi & assignatis suis . and fol. . b. i reade the same of a tenent per elegit ; where i thinke the meaning is not , that such tenents be free-houlders , but as freehoulders for their time , that is vntill they haue gathered profits to the value of their debt . freehoulders in the auncient lawes of scotland , were called milites . skene de verb. signif . verb. milites : the d. & student saith , that the possession of land , after the lawe of england , is called franck tenement , or free hould . fol. . a. frenchman ( francigena ) was wont to be vsed for euerie out-landish man. bracton . lib. . tract . . cap. . see englecerie . frendwite , vel infeng , significat quietantiam prioris prisae ratione convivii , fleta li. . ca. . frendles maen , was wont to be the saxon word for him , whome we call an outlawe . and the reason thereof i take to be : because he was vpon his exclusion from the kings peace and protection , denied all helpe of freinds ; after certaine daies . nam forisfecit amicos . bract. li. . tract . . ca. . nu . . whose words are these . talem vocant angli ( vtlaugh ) & alio nomine antiquitùs solet nominari , sc : frendles man : & sic videtur quod forisfecit amicos : & vnde st quis talem post vtlagariam & expulsionem scienter paverit , receptaverit , vel scienter cōmunicaverit aliquo modo , vel receptauerit , veloccultauerit , eadem paenâ puniri debet , quâ puniretur vtlagatus : ita quòd careat omnibus bonis suis & vita , nisi rex et parcat de sua gratia . 〈◊〉 fresh disseisin ( frisca disseisina ) commeth of the french ( fraiz . . recens ) and ( disseisir . i. posessione eiicere ) it seemeth to signifie in our common law , that disseisin that a man may seeke to defeate , of himselfe , and by his owne power , without the helpe of the king or his iudges , britton . ca. . & that is such disseisin , as is not aboue . daies olde . bract. li. . ca. . whome you may reade at large of this mater , concluding that it is arbitrarie , and so doth britton ca. . but ca. . he seemeth to say , that in one case it is a yeare . see him also ca. . fresh fine , is that which was levied within a yeare past , westm . . cap. . an . . ed. . fresh force ( frisca fortia ) is a force done within . daies , as it seemeth by fitzh . nat . br . fol. . c. for if a man be disseised of any lands or tenements , within any city or borough , or deforced from them after the death of his auncester , to whome he is heire : or after the death of his tenent for life or in taile : he may within . daies after his title accrued , haue a bille out of the chauncerie to the mayor , &c. see the rest . fresh suite ( recens insecutio ) is such a present and earnest following of an offendour , as neuer ceaseth from the time of the offence committed or espied , vntill he be apprehended . and the effect of this , in the pursuite of a felon , is , that the partie persiewing shall haue his goods restored him agine : whereas otherwise they are the kings . of this see stawnf . pl. cor . li. . ca. . & . where you shall finde handled at large , what suite is to be accounted fresh , and what not . and the same author in his first booke , cap. . saith , that fresh suite may continue for seuen yeres , see cookes reportes . l. . rigewaies case . fresh suite , seemeth to be either within the view or without : for m. manwood saith , that vpon fresh suite within the view , trespassers in the forest may be attached by the efficers persiewing them , though without the limits and boundes of the forest . parte . ca. . nu . . fol. . freoborgh : aliâs fridburgh : aliâs frithborg ( frideburgum ) commeth of two saxon words ( freo . i. liber , ingenuus ) and ( borgh . i. fideiussor ) or of ( frid. i pax ) & ( borgha . i. sponsor ) this is otherwise called after the french ( franck pledge ) the one being in vse in the saxons time , the other sithence the conquest : wherefore for the vnderstanding of this , reade franck pledge . that it is all one thing , it appeareth by m. lamberd in his explication of saxon words , verbo centuria and againe in the lawes of king edward set out by him , fol. . in these words : praeterea est quaedam summa & maxima securitas , per quam omnes statu firmissimo sustinentur : viz. vt vnusquisque stabiliat se sub fideiussionis securitate , quam angli vocant ( freoborghes ) soli tamen eberacenses , dicunt eandem ( tienmannatale ) quod sonat latine decem hominum numerum . haec securitas hoc modo fiebat , quòd de omnibus villis totius regni sub decennali fideiussione debebant esse vniuersi : ita quòd si vnus ex decem forisfecerit , novem adrectum eum haberēt : quòd si aufugeret , daretur lege terminus ei . dierum : vt quaesitus interim & inventus , ad iustitiam regis adduceretur , & de suo illico restauraret damnum quod fecerat . etsi ad hoc forisfaceret , de corpore sno iustitia fieret . séd si infra praedictum terminum inveniri non posset , &c : as in the booke : bracton maketh mention of ( fridburgum . lib. . tract . . cap. . in these words : archiepiscopi , episcopi , comites , & barones , & omnes qui habent soc , & sak . tol , & team , & huiusmodi libertates , milites suos & proprios servientes , armigeros sc . dapiferos , & pincernas , camerarios , coquos , pistores , sub suo fridburgo habere debent . item & isti suos armigeros , & alios sibi servientes . quòd si cui forisfecerint , ipsi domini sui habeant eos adrectum , et si non habuerint , solvant pro eis forisfacturam . et sic obseruandum erit de omnibus alits , qui sunt de alicuius manupastu . out of these words , i learne the reason , why great men were not combined in any ordinarie dozeine , and that is , because they were a sufficient assurance for themselues and for their meniall seruants : no lesse then the tenne were one for another in ordinarie dozeins . see frank pledge : see skene de verborum significatione . verbo . freiborgh . fleta writeth this word ( frithborgh ) and vseth it for the principall man , or at the least , for a man of euery dozein . frithborgh ( saith he ) est laudabilis homo testimonii liber vel servus , per quem omnes iuxta ipsum commorantes firmiori pace sustententur sub stabilitate fideiussionis eius vel alterius per denarium numerum , vnde quilibet quasi plegius alterius : it a quod si vnus feloniam fecerit , novem tenentur ipsum ad standum recto praesentare . lib. . ca. . § . frithborgh . see roger hoveden , parte poster . suorum annal . in henrico secundo . fol. . a. b. frier ( frater ) commeth of the french ( fiere ) there be foure orders reckoned of them . anno . h. . cap. . viz. minours , augustines , preachers , and garmelites , the foure principall orders , of which the test descend . see in zechius de rep . ecc . pag. looke linwood . titulo de relig . demibus . cap. . verb. sancti augustin . frier observant ( frater observans ) is an order of franciscans : for the better vnderstanding of whom , it is to be noted , that of those . orders mentioned in the word ( frier , ) the franciscans , are minores tam obseruantes quòm conventuales & capuchini . zecchus de repub. eccl. tract . de regular . cap. . these friers observant , you find spoken of anno . h. . cap. . who be called observants , because they are not combined together in any cloyster , covent , or corporation as the conuentuals are : but only tye themselues to obserue the rites of their order , and more strictly then the conuentuals doe : and vpon a singularitie of zeale , separate themselues from them , liuing in certaine places , and companies of their owne chusing . and of these you may reade hospinian . de orig . & progr . monachatus . fol. . cap. . friperer , is taken from the french ( fripier ) interpolator , one that scowreth vp and cleanseth old apparell to sell againe . this word is vsed for a bastardly kind of broker . anno . iaco. cap. . frithborgh , see freeborgh . frithsoken , signifieth surety of defence , as saxon saith in the description of england , cap. . it seemeth to come of these two saxon words , frith , or frid , or ( fred . ) i. pax , & ( soken . i. quaerere . ) fleta tearmeth it frithsokne , vel forsokne , yeelding this reason , quòd significat libertatem habendi franci plegii . fuer ( fuga ) commeth of the french ( fuir , i. fugere ) though it be a verbe , yet it is vsed substantiuely in our common law , and is twofold : fuer in feit , ( in facto ) when a man doth apparently and corporally flie , and fuer in ley , ( in lege ) when being called in the countie , he appeareth not vntill he be outlawed : for this is flight in interpretation of law . staw nf . pl. cor . lib. . c. . fugitiues goods , ( bona fugitiuorum ) be the proper goods of him that flyeth vpon felonie , which after the flight lawfully found , do belong to the king . coke vol. . fol. . b. furlong , ( ferlingum terrae ) is a quantitie of grounde containing twenty lugs or poles in length , and euery pole foote and a halfe , eight of which furlongs make a mile , anno . fd. . cap. . it is otherwise the eighth part of an acre . see acre . in the former signification the romanes call it ( stadium , ) in the later ( iugerum . ) this measure which wee call a pole , is also called a perch , & differeth in length , according to the custome of the countrey . see perch . furre ( furrura ) commeth of the french ( fourrer . i. pelliculare ) to line with skinnes . of furre i find diuers strange kinds in the statute . anno . h. . cap. . as of sables , which is a rich furre of colour betweene blacke and browne , being the skinne of a beast called a sable , of quantitie betweene a polecat and an ordinarie cat , and of fashion like a polecat , bred in ruscia , but most and the best in tartaria . lucerns ; which is the skinne of a beast so called , being nere the bignes of a wolfe , of colour betweene red and browne , something mayled like a cat , and mingled with blacke spottes , bred in muscovie and ruscia , & is a very rich furre . genets , that is the skinne of a beast so called , of bignes betweene a cat and a wesell , mayled like a cat , and of the nature of a cat , bred in spaine . whereof there bee two kinds , blacke , and gray , and the blacke the more precious furre , hauing blacke spots vpon it hardly to be seene . foines , is of fashion like the sable bred in fraunce for the most part : the toppe of the furre is blacke , and the ground whitish . marterne , is a beast very like the sable , the skinne something courser , it liueth in all countries that be not too cold , as england , ireland , &c. and the best be in ireland . miniuer , is nothing but the bellies of squirels , as some men say : others say , it is a litle vermin like vnto a wesell milke white , and commeth from muscovie . fitch , is that which we otherwise call the polecat here in england . shankes , be the skinne of the shanke or legge of a kind of kidde which beareth the furre , that we call budge . calaber , is a litle beast , in bignes about the quantitie of a squirell , of colour gray , and bred especially in high germanie . g gabell ( gabella , gablum ) commeth of the french ( gabelle . i. vectigal ) and hath the same signification among our old writers , that ( gabelle ) hath in fraunce , for m. camden in his britannia . pag. . speaking of wallingford , hath these words : continebat . hagas . i. domos reddentes novem libras de gablo : and pag. . of oxford , these : haec vrbs reddebat pro telonio & gablo , & aliis consuetudinibus per annum , regi quidem viginti libras , & sex sextarios mellis : comiti verò a'garo decem libras . gabella ( as cassanaeus defineth it , de consuetu . burgund . pag. . est vectigal quod solvitur probonis mobilibus , id est , pro hiis quae vehuntur , distinguishing it from tributum , quia tributum est propriè , quod fisco vel principi solvitur pro rebus immobilibus . gage , ( vadium ) commeth of the french ( gager . i. dare pignus , pignore certare ) and is it selfe a french word nothing chāged , but in pronunciation . it signifieth with vs also a pawne o● pledge . glanvile lib. . cap. . where he saith thus : quandoque res mobiles ponuntur in vadium , quandoque res immobiles , and a litle after that , thus : invadiatur res quandoque ad terminum , quandoque sine termino . item quandoque invadiatur res aliqua in mortuo vadio , quandoque non . and from that chapter to the end of the twelfth in the same booke , he handleth this only thing . though the word ( gage ) be retained as it is a substantiue , yet as it is a verbe , the vse hath turned the g. into w. so as it is oftener written ( wage : ) as to wage deliuerance , that is , to giue securitie that a thing shall be deliuered . for if he that distrained , being siewed , haue not deliuered the catell that were distrained , then he shall not onely avow the distresse , but ( gager deliuerance ) i. put in suretie , that he will deliuer the catell distrained . fitzh . nat . br . fol. . d. & . f. whome see also fol. . f. g. yet in some cases , he shall not by tyed to make this securitie : as if the catell died in pound . kitchin fol. . or if he claime a propertie in the catell siewed for . termes of the lawe . to wage lawe what it is , see in his place . verbo . lane. see mortgage . gager deliuerance . see gage . gayle . see gaoll . gainage , ( wainagium ) is neere to the french ( gaignage . i. quaestus , lucrum , ) and signifieth in our common lawe , the land held by the baser kind of sokemen or villeines . bract. lib. . cap. . where he hath these words , speaking of seruants : et in hoc legem habent contra dommos , quòd stare possunt in iudicio contra eos de vita & membris propter saeuitiam dominorum , vel propter intolerabilem iniuriam . vt si eos distruant , quòd salvum non possit eis esse wainagium suum . hoc autem verum est de illis servis , qui tenent in antiquo dominico coronae . and againe , lib. . tract . . cap. . miles & liber homo non amerciabitur nisi secundum modum delicti , secundum quod delictū fuit magnum vel parvum , & salvo contenemento suo : mercator verò , non nisi salva mercandiza sua : & villanus , non nisi salvo wainagio suo . this in westm . . cap. . an . . ed. prim . is called gaynure : and againe , cap. . and in magna charta , cap. . it is called wainage . i find it in the old . nat . br . fol. . called gainor . viz. in these words : the writ of aile was praecipe , &c. quòd reddat vnam bovatam terrae , & vnam bovatam marisci : and the writ was abated for that the oxegang is alwaies of a thing that lyeth in gainor . i thinke this word was vsed of lands vsually plowed , because they that had it in occupation , had nothing of it but the profit and fruite raised of it by their owne paines , toward their suste nance , nor any other title , but at the lords will. gainor again in the same booke , fol. . is vsed for a sokeman , that hath such land in his occupation . in the . chapter of the grand custumarie of normandie : gaigneurs be ruricolae qui terras eleemozin at as possident : and britton vseth gainer , for to plow or till , fol. . a. & . b. west parte . symbol . titulo , recoueries . sect . . hath these words : a praecipe quòd reddat , lyeth not in bovata marisci . . ed. . fol. . nor de selione terrae . ed. . for the vncertaintie : because a selion , which is a land , sometime containeth an acre , sometime halfe an acre , sometime more , and sometime lesse . it lyeth not of a garden , cotage , or croft . . assis . . . h. . . ed. . . de virgata terrae . . . . ed. . de fodina , de minera , de mercatu . . e. . for they bee not in demesn : but in gaine , &c. lastly , in the statute of distresses in the exchequer . anno . h. . i find these words . no man of religion , nor other , shall be distreined by his beasts that gaine the land . galege , ( galicae ) seemeth to come of the french , ( galloches ) which signifieth a certaine kinde of shoo worne by the gaules in soule weather of old times . i find it vsed for some such implement . anno . ed. . cap. . & anno . & . h. . cap. . where it is written plainely . galochet . galingal ( cyperus ) is a medicinall herbe , the nature and diuersitie whereof is expressed in gerards herball . lib. . cap. . the roote of this is mentioned for a drugge to be garbled . anno . iaco. cap. . gallihalpens , were a kind of coine forbidden by the statute . anno . h. . cap. . galloches . see galege . gals , ( gallae ) be a kind of hard fruite like a nutte , but rounder , growing of the tree called in latine ( galla . ) the diuers kinds and vses whereof gerard expresseth in his herball . lib. . cap. . this is a drugge to be garbled . anno . iaco. cap. . gaol , ( gaola ) commeth of the french ( geole . i. caveola ) a cage for birds , but is metaphorically vsed for a prison . thence commeth ( geolier ) whome we call gayler or gaoler . garbe ( garba ) commeth of the french ( garbe , aliâs , gerbe . . fascis . ) it signifieth with vs , a bundle or sheafe of corne . charta de foresta . cap. . and garba sagittarum , is a sheafe of arrowes . skene de verb. signif . verbo , garba . garbling of bow-staues . anno . r. . cap. . is the sorting or culling out the good from the bad . as garbling of spice , is nothing but to purifie it from the drosse and dust that is mixed with it . it may seeme to proceed from the italian ( garbo ) that is , finenesse , neatnesse . gard , ( custodia ) commeth of the french , ( garde ) being all of one signification . it signifieth in our common lawe , a custodie or care of defence : but hath diuers applications : sometimes to those that attend vpon the safetie of the prince , called yeomen of the guard : somtime to such as haue the education of children vnder age , or of an idiot : sometime to a writte touching wardshippe . which writs are of three sorts : one called a right of guard or ward , in french , droit de gard , fitzh . nat . br . fol. . the second is eiectment de gard . idem fol. . l. the third , is rauishment de gard . idem fol. . f. g. see gardem , see ward . gardein ( custos ) commeth of the french ( gardien , ) and yet the german ( warden ) is neare vnto it . it signifieth generally him , that hath the charge or custodie of any person or thing : but most notoriously him , that hath the education or protection of such people , as are not of sufficient discretion , to guide themselues and their owne affaires , as children and idiots : being indeede as largely extended , as both ( tutor and curator ) among the civilians . for whereas tutor is he , that hath the gouernment of a youth , vntill he come to . yeares of age , and curator , he that hath the disposition and ordering of his substance afterward , vntil he attaine to . yeares : or that hath the charge of a franticke person during his lunacie : the common lawyers vse but onely gardien or gardian for both these . and for the better vnderstanding of our english lawe in this thing , you must know , that as tutor is either testamentarius , or à praetore datus ex lege atilia , or lastly , legitimus : so we haue three sortes of gardeines in england : one ordained by the father in his last will , another appointed by the iudge afterward , the third cast vpon the minor by the lawe and custome of the land . touching the first , a man hauing goods and chatels neuer so many , may appoint a gardein to the bodie or person of his child , by his last will and testament , vntill he come to the age of fourteene yeares , and so the disposing or ordering of his substance , vntill what time he thinketh meet , and that is most commonly to the age of . yeares . the same may he do , if he haue lands to neuer so great a valew , so they hold not in capite of the king , nor of any other lord , by knights seruice . and in the former case , if the father appoint no gardein to his child , the ordinarie may appoint one to order his moueables and chatels , vntill the age of . yeares : at which time he may chuse his guardian , accordingly as by the the ciuill lawe he may his curator . for we hold all one rule with the civilians in this case : and that is , invito curator non datur . and for his lands , if he hold any by copie of court rolle , commonly the lord of the fee appointeth him a guardian , vntill he come to the age of . yeres , and that is one , next of kind to the minor of that side , that can hope for least profitby his death . if he hold by charter in socage , then the next of kind on that side by which the land commeth not is the guardian : and hereupon called guardian in socage . and that which is said here of socage seemeth to be true likewise in petit sergeantie . anno vicesimo octauo . edvardi primi . statuto primo . and the reason of this , fortescue giueth in his booke , intituled , a commendation of the politique lawes of england . cap. . viz. because there might be suspition , if the next kinsman on that side by which the land descendeth , should haue the custody and education of the child , that for desire of his land , he might be entised to worke him some mischiefe . lastly , if a man dye seised of lands , holding by knights seruice , leauing his heire in minoritie , that is , vnder . yeares : the lord of the fee hath , by law , the custodie both of the heire and his land , vntill he come to age . see the statute , anno . ed. prim . statut . prim . and the reason of this , fortescue likewise giueth , for that hee to whom by his tenure he oweth knights seruice , when he can performe it , is likeliest to traine him vp in martiall and ingenious discipline , vntill he be of abilitie . but polidore virgil in his chronicle , lib. . saith , that this was movum vectigalis genus excogitatum , to helpe henry the third , being oppressed much with pouertie , by reason he receiued the kingdome much wasted by the wars of his aun cestours : and therefore needing extraordinarie helpe to vphold his estate : yet the . chapter of the grand custumary maketh mention of this to haue bene vsed by the normans : and i thinke this the truer opinion . here it is to be obserued , whether land in knights seruice hold in capite , or of another lord , or some of the king , and some of another . if of the king , whether of the king alone or not , all is one . for the king in this case is guardian to the heires both person and land by his prerogatiue . stawnf praerog . cap. . if he hould of a common lord , it is either of one alone or more ; if of one onely , then is he guardian of both person and lands ; if of more , then the lord of whome he houldeth by the elder tenure , is guardian of the person , and euery one of the rest hath the custodie of the land holden of him selfe . if the prioritie of the tenure cannot be discerned , then is he guardian of the person , that first happeth him . termes of the lawe . stawnf . vbi supra . whom you may reade more at large : which author fol. . maketh mention of gardeyn in feit , and gardeyn in droit : that is , in deed , and in lawe : i take the first to be him that hath purchased , or otherwise obtained the ward of the lord of whom the land holdeth : the second , him that hath the right by his inheritance and seignorie . old . nat . br . fol. then is there gardein per cause de gard , which is he that hath the wardship of a minor , because he is guardian of his lord being likewise in minoritie . stawnf . vbi supra . fol. . of this you may reade skene de verb. signif . verbo varda . by whom you may learn great affinitie , and yet some difference betweene the lawe of scotland , and ours in this point . guardia , is a word vsed among the feudists , for the latine ( custodia , ) and guardianus seu guardio dicitur ille , cui custodia commissa est . lib. feudo . . titulo . . & tit . . gardeyn of the spiritualties , ( custos spiritualium , vel spiritualitatis ) is he to whom the spirituall iurisdiction of any diocesse is committed , during the vacancy of the see . anno . h. . cap. . and i take , that the guardeyn of the spiritualties , may be either guardeyn in lawe , or iure magistratus , as the archbishop is of any dioces within his prouince , or guardian by delegation , as he whom the archbishop or vicar generall doth for the time depute . gardeyn of the peace , ( custos pacis . ) see conservatour of the peace . gardeyn of the cinque ports , ( gardianus quinque portuum ) is a magistrate that hath the iurisdiction of those hauens in the east part of england , which are commonly called the cinque ports , that is , the fiue hauens : who there hath all that iurisdiction , that the admirall of england hath in places not exempt . the reason why one magistrate should be assigned to these few hauens , seemeth to be , because they in respect of their situation , aunciently required a more vigilant care , then other hauens , being in greater daunger of invasion by our enemies , by reason that the sea is narrower there then in any other place . m. camden in his britannia , pag. . saith , that the romaines , after they had setled themselues and their empire here in england , appointed a magistrate or gouernour ouer those east partes , whom they tearmed comitem littoris saxonici per britanniam , hauing another that did beare the same title on the opposite part of the sea : whose office was to strengthen the sea coasts with munition , against the outrages and robberies of the barbarians . and farder signifieth his opinion , that this warden of the cinque ports , was first erected amongst vs , in imitation of that romaine policie . see cinque ports . gare , anno . fd. . cap. . is a course wooll full of staring haires , as such as groweth about the pesill or shankes of the sheepe . garnishment , commeth of the french ( garnir . i. instruere . ) it signifieth in our common lawe , a warning giuen to one for his appearance , and that for the beter furnishing of the cause and court . for example , one is siewed for the detinew of certaine euidences or charters , and saith , that the euidences were deliuered vnto him not onely by the plaintiffe , but by another also : and therefore prayeth , that that other may be warned to pleade with the plaintiffe , whether the said conditions bee performed yea or no. and in this petition he is said to pray garnishment . new booke of entries . fol. . colum . . termes of the lawe . cromptons iurisd . fol. . which may be interpreted either warning of that other , or else furnishing of the court with parties sufficient , throughly to determine the cause : because vntill he appeare and ioyne , the defendant ( as fitzh . saith ) is , as it were , out of the court . nat . br . fol. . g. and the court is not prouided of all parties to the action . i am the bolder thus to interpret it , because i find britton in the same mind . cap. . where he saith , that contracts be some naked , and sans garnment , and some furnished , or to vse the literall signification of his word , appareled : but a naked obligation giueth no action , but by common assent . and therefore it is necessarie or needfull , that euery obligation be appareled . and an obligation ought to be appareled with these fiue sortes of garnements , &c. howbeit , i reade it generally vsed for a warning in many places , and namely , in kitchin fol. . garnisher le court , is to warne the court . and reasonable garnishment in the same place , is nothing but reasonable warning : and againe , fol. . and many other authours also . but this may be well thought a metonymie of the effect , because by the warning of parties to the court , the court is furnished and adorned . garrantie . see warrantie . garter ( garterium ) commeth of the french ( iartiere or iartier . i. periscelis , fascia poplitaria ) it signifieth with vs both in diuers statutes , and otherwise , one especiall garter , being the ensigne of a great and noble societie of knights , called knights of the garter . and this is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as poeta among the graecians was homer , among the romanes virgill , because they were of all others the most excellent . this high order ( as appeareth by m. camden pag. ) and many others , was first instituted by that famous king edward the third , vpon good successe in a skirmish , wherein the kings garter ( i know not vpon what occasion ) was vsed for a token . i know that polidore virgill casteth in an other suspition of the originall : but his groundes by his owne confession grew from the vulgar opinion : yet as it is , i will mention it as i haue read it . edward the third king of england after he had obtained many great victories : king iohn of fraunce , king iames , of scotland , being both prisoners in the tower of london at one time , and king henry of castile , the bastard expulsed , and don pedro restored by the prince of wales , did vpon no weighty occasion first erect this order in anno . viz. he dauncing with the queene , and other ladies of the court , tooke vp a garter that happened to fall from one of them : whereat some of the lords smiling , the king said vnto them , that eare it were long , he would make that garter to be of high reputation , & shortly after instituted this order of the blew garter , which euery one of the order is boūd daily to weare , being richly decked with gold and pretious stones , and hauing these words written , or wrought vpon it : honi soit qui mal y pence . which is thus commonly interpreted : euill come to him that euill thinketh : but i thinke it might be better thus : shame take him that thinketh euill . see knights of the garter . m. fearne in his glory of generosity agreeth with m. camden , and expressier setteth downe the victories , whence this order was occasioned : whatsoeuer cause of beginning it had , theorder is inferiorto none in the world , consisting of . martiall and heroicall nobles , whereof the king of england is the cheif , and the rest be either nobles of the realme or princes of other countries , friends and confederates with this realme ; the honour being such , as emperours and kings of other nations , haue desired and thankfully accepted it : he that will reade more of this , let him repaire to m. camden , and polidore , and m. fern. fol. . vbi supra . the ceremonies of the chapter proceeding to election , of the inuestures and robes : of his installation , of his vowe with all such other obseruances , see in m. segars new booke , intituled honour militarie and ciuile . li. . ca. . fo . . garter also signifieth the principall king at armes , among our english heralds created by king henry the . stow. pa. . garthman , anno . r. . stat . . ca. . & anno . . eiusd . cap. . gavelet , is a speciall and auncient kinde of cessauit vsed in kent , where the custome of gavill kind continueth : whereby the tenent shall forfeit his lands and tenements to the lord of whome he holdeth , if he withdraw from him his due rents and seruices . the new expounder of lawe termes , whom reade more at large : i reade this word , anno . ed. . cap. vnico . where it appeareth to be a writ vsed in the hustings at london . and i find by fleta , that it is vsed in other liberties , as the hustings of winchester , lincolne , yorke , and the cinque ports . lib. . cap. . in principio . gavelkind , is , by m. lamberd in his exposition of saxon words , verbo . terra ex scripto , compounded of three saxon words , gyfe , cal , cin : omnibus cognatione proximis data . but m. verstegan in his restitution of decayed intelligence , cap. . calleth it ( gavelkind ) quasi , giue all kind , that is , giue to each child his part . it signifieth in our common lawe a custome , whereby the lands of the father is equally diuided at his death amongst all his sons , or the lād of the brother equally diuided among the brethren , if he haue no issue of his owne , kit. fol. . this custome is said to be of force in diuers places of england , but especially in kent , as the said authour reporteth , shewing also the cause why kentish men rather vse this custome , then any other province . viz. because it was a composition made betweene the conquerour and them , after all , england beside was conquered , that they should enioy their auncient customes , whereof this was one . for m. camden in his britannia , pag. . saith in expresse words thus : cantiani eâ lege gulielmo normano se dediderunt , vt patrias consuetudines illaesas retinerent , illamque inprimis quam gavelkind nominant . hac terrae quae eo nomine censentur , liberis masculis ex aequis portionibus dividuntur : vel foeminis , si masculi non fuerint : adding more worth the noting , viz. hanc haereditatem , cùm quintum decimum annum attigerint , adeunt , & sine domini consensu , cuilibet , vel dando , vel vendendo alienare licet . hac filii parentibus furti damnatis in id genus fundis succedunt , &c. this custome in diuers gentlemens lands , was altered at their owne petition , by act of parlament . anno . h. . cap. . but it appeareth by . h. . cap. pri . that in those daies there were not aboue thirty or forty persons in kent , that held by any other tenure . see the new termes , gavelet , and gavelkinde . gawgeour , ( gaugeator ) seemeth to come of the french ( gawehir . i. in gyrum torquere . ) it signifieth with vs an officer of the kings appointed to examin all tunnes , hogsheades , pipes , barels , and tercians of wine , oile , hony , butter , and to giue them a marke of allowance , before they bee sold in any place . and because this marke is a circle made with an iron instrument for that purpose : it seemeth that from thence he taketh his name . of this office you may find many statutes : the first whereof is , anno . ed. . commonly called the statute of prouision , or purveyours . cap. . geld , signifieth with the saxons , pecunia vel tributum . see gyld . genets , aliâs , ienets . see furre . gentleman , ( generosus ) seemeth to be made of two words , the one french , ( gentil . i. honestus , vel honesto loco natus : ) the other saxon ( mon ) as if you would say , a man well borne . the italian followeth the very word , calling those ( gentil homini ) whom we call gentlemen . the spaniard keepeth the meaning , calling him hidalgo , or hyod'algo , that is , the son of some man , or of a man of reckoning . the frenchmen call him also gentil houme : so that gentlemen bee those , whom their bloud and race doth make noble and knowne . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in greeke , in latine , nobiles . smith de repub. anglor . lib. . cap. . vnder this name are all comprised that are aboue yeomen : so that noblemen be truly called gentlemen . but by the course and custome of england , nobilitie is either maior or minor : the greater containes all titles and degrees from knights vpward : the lesser all from barons downward . smith vbi supra . cap. . the reason of the name , as i take it , groweth from this , that they obserue gentilitatem suam , that is , the race & propagation of their blood , by giuing of armes , which the cōmon sort neither doth , nor may doe . for by the coate that a gentleman giueth , he is knowne to be , or not to be descended from those of his name , that liued many hundred yeares since . howbeit , that this is neglected , where substance faileth to maintaine the countenance . for many of great birth fall to pouerty , whose posteritie liuing and labouring in want , haue small encouragement to looke after the titles of their auncesters , and so in time slippe into the number of the ignoble sort : yet if they by their vertue or fortune , can againe aduaunce themselues to sufficient abilitie , the herald out of his obseruations can restore them to the coat of their progenitors , and now and then helpe them to one , that their auncestors neuer ware . gentiles homines , see in tiraquel . de nobilitate . cap. . pag. . tully in his topickes thus saith of this mater . gentiles sunt , qui inter se eodem sunt nomine ab ingenuis oriundi , quorum maiorum nemo servitutem servivit , qui capite non sunt diminuti . and in the first booke of his tusc . questions , hee calleth tullum hostilium , one of the kings of rome , gentilem suum . generall issue . vid. issue . gestu & fama , is a writ . lamb. eirenarcha . lib. . ca. . pag. . gygge milles , were for the fulling of woollin cloth and forbidden , anno . edward . . cap. . gild : alias geld ( gildare ) commeth from the saxon word ( gildan ) i. soluere , lamb. in his explica : of saxon words saith verb. contubernalis . it is vsed as a verb , and as a substantiue also , and as it is a substantiue , it is latined gilda and signifieth a tribute , or sometime an amercement , or thirdly a fraternity or company , combined together by orders and lawes made among themselues by the princes licence . m. camden citeth many antiquities , by which it appearreth to signifie a tribute or taxe , as pa. . . . . . m. crompton in his iurisdictions , fol. . sheweth it to be an amercement , as footgeld , and fol. . he interpreteth it to be a prestation within the forest , in these words : to be quit of all manner of gelds . is to be discharged of all manner of prestations to be made for gathering of sheues of corne , of lambe , and of wolle to the vse of foresters . againe m. camden pag. . diuiding suffolke into three parts , calleth the first gildable , because tribute is thence gathered ; the second libertatem s. edmundi : the third libertatem s. etheldredae . and the statutes : anno . ed. . stat . . ca. . & anno . h. . ca. . vse gildable in the same sense , and so doth the statute anno . h. . ca. . from this m. lamberd , vbi supra , is likewise perswaded , that the common word ( gild ) or ( gildhall ) doth proceede , being a fraternity or communalty of men gathered into one combination , supporting their common charge by a mutuall contribution : and in the register originall , fol. . b. i reade gildam mercatoriam , that is the gilde merchaunt , which i haue heard to be a certaine liberty or priuiledge belonging to merchants , whereby they are enabled to hould certaine plees of land within their owne precincts . this word ( gildes ) or ( guildes ) is so vsed anno . ed. . ca. . & anno . r. . cap. . and gildhalda teutonicorum , is vsed for the fraternity of easterling merchaunts in london , called the stilyard anno . h. . cap. octauo . ginger ( zinziber ) is a spice well knowne , being the roote of a plant that groweth in hot countries , as spaine , barbary , &c. the true forme whereof you haue expressed in gerards herball . li. . ca. . this is a spice whose roote is to be garbled . anno . iaco. ca. . ginny peper ( piper de ginnea ) is otherwise called indian peper , of the place whence it commeth . the nature and farder description whereof you haue in gerards herball . lib. . ca. . this you haue mentioned among drugs and spices to be garbled , in the statute . i. iaco. ca. . gisarms : anno . ed. . stat . . cap. . is a kinde of weapon . flet a writeth it sisarmes . lib. . ca. § , item quod quilibet . glaunce ore , plowden casu mines . fo . . b. glanuill was a learned lawyer , that was chiefe iustice in henry the seconds dayes , and writte a booke of the common lawes of england , which is the auncientest of any extant touching that subiect . stawnf . praerog . cap. prim . fol. . he was then called in latine ranulphus de glanvilla . he died in richard the first his daies at the citie of acres in the coast of iury , being with him in his voyage to the holy land . plowden . casu . stowel . fol. . b. goe , is vsed sometime in a speciall signification in our cōmon lawe : as to go to god , is to be dismissed the court . broke titulo . fayler de records . num . . goe forward , seemeth also to be a signe giuen by a iudge to the sergeant or counceler , pleading the cause of his client , that his cause is not good . for when he standeth vpon a point of lawe , and heareth those words of the iudges mouth , he taketh vnderstanding , that he looseth the action . smith de repub. anglo . lib. . cap. . to go without day , is as much as to be dismissed the court . kitchin fol. . good behauiour . see good abearing good abearing , ( bonus gestus ) is , by an especiall signification , an exact cariage or behauiour of a subiect , toward the king and his liege people , whereunto men vpon their euill course of life , or loose demeanure are sometimes bound . for as m. lamberd in his eirenarcha . lib. . cap. . saith : he that is bound to this , is more strictly bound then to the peace : because , where the peace is not broken without an affray , or batterie , or such like : this suretie ( de bono gestu ) may be forfeited by the number of a mans company , or by his or their weapons or harnesse : where of see more in that learned writer in the same chapter , as also in m. cromptons iustice of peace . fol. . b. . . . . . . . . good country , ( bona patria ) is an assise , or iury of country men or good neighbours : skene de verbo . signif . verbo , bona patria . graffer ( grafarius ) signifieth as much as a notarie or scriuener . it commeth of the french ( greffier . i. scriba , actuarius . ) this word is vsed in the statute anno . . h. . c. . graines ( grana paradisi , aliâs cardamomum ) is a spice medicinable and wholesome , whereof you may see diuers kindes in gerards herball , l. . ca. . these are cōprised among merchādise that be to be garbled . an● . i. c. . grand assise . see assise . and magna assisa . grand cape . see cape and attachment . grand sergeanty : see chyvalrie . & seargeantye . grand distresse : ( magna destrictio ) is a distresse taken of all the lands , and goods , that a man hath within the county or bayliwicke , whence he is to be distrained : fleta . li. . ca. . § . penult : see distresse . this word is vsed anno . h. . ca. . this falleth out when the defendant hath been attached , and yet appeareth not vpō his attachment ; or whē he appeareth & afterward makes default . for then the shyreeue is commanded to distreine the defendant , by all his goods and chatels , and to answer the king the issues of his lands . grange ( grangia ) is a house or building , not onely where corne is laide vp , as barns be , but also where there be stables for horses , stalles for oxen and other catell , sties for hogs , and other things necessary for husbandry , lindwood ca. item omnes de iudiciis verbo , graungus , in glossa : graunt ( concessio , grantum ) glanvile . signifieth specially in our common law , a gift in writing of such a thing , as cannot aptly be passed or conueyed by word only : as rent , reversions , seruices , advowsens in grosse , common in grosse , villein in grosse , tythes , &c. or made by such persons , as cannot giue but by deede , as the king and all bodies politique : which differences be often in speech neglected , and then is it taken generally for euerry gift whatsoeuer , made of any thing by any person , and he that graunteth it , is named the grauntour , and he to whome it is made , the grauntee . west . parte . i. symbol . lib. . sect . . a thing is said to lie in graunte , which cannot be assigned with out deede . coke l. . lincolnes coll. case . f. . a. greate men , are sometimes vnderstood of the laity of the higher house of parlament , as anno . . ed. . ca. . & anno . r. . in prooem . and sometime of the knights &c. of the lower house , as anno . r. . stat . . in princip . gree , commeth of the french ( grè ) . i. sententia , beneplaecitum . it signifieth in our common law , contentment or good liking : as to make gree to the parties , is to satisfie them for an offence done . anno . rich. . cap. . greachbreach , is breaking of the peace . saxon in the descriptiion of england . ca. . v. rastal . titulo exposition of words . the new expounder of lawe termes writeth it ( grichbreach ) and giueth it the same signification . see greve . greene hewe , is all one with vert . manwood parte . of his forest lawes . cap. . nu . . see vert. greene waxe , seemeth to be vsed for estretes deliuered to shyreeues out of the exchequer , vnder the seale of that court , to be levied in the county , anno . ed. . ca. . & anno . h. . cap. . see forein apposer . greue ( praepositus ) is a word of power and authoritie , signifiing as much as dominus , or praefectus . lamberd in his exposi . of saxon words , verbo praefectus . where he seemeth to make it all one with ( reve ) as i thinke vndoubtedly it is : the saxon word is gerefa whereof we haue diuers words compounded , as shyreeue . portgreave , &c. which were wont of the saxons to be written scyrgerefa : portgerefa see. shyreeue and portgreve . see roger hoveden parte poster . suorum annal . fo . . b. where he saith thus : greue dicitur , ideo quod iure debeat grithe . i. pacem ex illis facere , qui patriae inferunt vae . i. miseriam vel malum . grithbreach , is a breach of peace . for grith is a word of the old angles , signifiing peace . roger hovedin parte poster suorum annal . fo . . b. see greachbreach . grills anno . ed. . ca. . grocers , be merchants that ingrosse all merchandize vendible anno . ed. . ca. . groome , anno . h. . ca. . ( valletus ) is the name of a seruant that serueth in some inferiour place . m. verslegan in his restitution of decayed intelligence saith , that he findeth it to haue beene in times past a name for youths , who albeit they serued , yet were they inferiour to men seruants , and were sometimes vsed to be sent on foote of errands , seruing in such manner as lackies doe nowe . growme , anno . e. ca. . seemeth to be an engine to stretch wollen cloth withall after it is wouen . guydage ( guydāgium ) is that which is giuen for safe conduct through a strange territorie . cassan : de consuet . bourg . pag. . whose words be these . est guidagiū quod datur alicui , vt tutò conducatur per loca alterius . guylde , see gyld . guylhalda teutonicorum . see gild. gule of august ( gula augusti ) anno . . ed. . stat . . cap. vnico fitzh . nat . br . fol. . i. aliâs goule de august . plowd . casu mines , fo . . b. is the very day of saint peterad vincula , which was wont , and is still within the limits of the roman church , celebrated vpon the very kalends of august . why it should be called the gule of august , i cannot otherwise coniecture , but that it commeth of the latine ( gula ) or the french ( gueule ) the throate . the reason of my coniecture is in durands rationali diuinorum li. . ca. de festo sancti petri ad vincula , who saith that one quirinus a tribune , hauing a daughter that had a disease in her throat , went to alexander then pope of rome the sixt from saint peter , and desired of him to borow or see the cheines that saint peter was cheined with vnder nero : which request obteined , his said daughter kissing the said cheine , was cured of her disease and quirinus with his family was baptised . tunc dictus alexander papa ( saith durand hoc festum in kalendis . augusti celebrandum instituit , & in honorem beali petri ecclesiam in vrbe fabricavit , vbi vincula ipsa reposuit , & ad vincula nominavit ; & kalendis augusti , dedicauit . in qua festivitate , populus illic ipsa vincula hodie osculatur . so that this day being before called onely the kalends of august , was vpon this occasion afterward termed indifferently either of the instrument that wrought this miracle , saint peters day ad vincula , or of that part of the maiden , wheron the miracle was wrought , the gule of august . gultwit , seemeth to be compounded of ( gult . i. noxa ) and wit , which is said by some skilfull men , to be an auncient termination of the words in the saxon tongue , signifiing nothing in it selfe , but as ( dom ) or ( hood ) and such like be in these english words ( christendom ) and ( manhood ) or such others : others say , and it is true , that wit signifieth blame or reprehension . gultwit ( as saxon in his description of england ca. . doth interpret it ) is an amends for trespas . gust ( hospes ) is vsed by bracton for a straunger or guest , that lodgeth with vs the second night : lib. . tracta . . ca. . in the lawes of saint edward set forth by m. lamberd , num . . it is written gest : of this see more in vncothe . gumme ( gummi ) is a certaine clammie or tough liquor that in maner of a swetie excrement , issueth out of trees , and is hardened by the sunne . of these ther be diuers sorts brought ouer seas , that be drugs to be garbled , as appeareth by the statute anno . iaco. ca. . gutter tyle , alias corner tyle , is a tile made three cornerwise , especially to be laid in gutters , or , at the corners of tyled houses which you shall often see vpon douehouses at the foure corners of their rofes . anno . eduardi . ca. . h a habeas corpus , is a writ , the which a man indited of some trespas before iustices of peace , or in a court of any franchise , and vpon his apprehension being laid in prison for the same , may haue out of the kings bench , thereby to remooue himselfe thither at his owne costs , and to answer the cause there , &c. fitzh . nat . br . fol. . h. and the order is in this case , first to procure a ( certiorari ) out of the chaūcerie directed to the said iustices for the remoouing of the inditemēt into the kings bench , and vpon that to procure this writ to the shyreeue , for the causing of his body to be brought at a day , register iudiciall . fol. . where you shall finde diuers cases , wherein this writ is vsed . habeas corpora , is a writ that lieth for the bringing in of a iurie , or so many of them , as refuse to come vpon the ( venire facias ) for the tryall of a cause brought to issue . old nat br . fol. . see great diuersitie of this writ , in the table of the register iudiciall . verbo , habeas corpora . & the new booke of entries . verbo eodem . habendum , is a word of forme in a deede of conueyance , to the true vnderstanding whereof you must knowe , that in euery deede of conueyance , there be . principall parts , the premisses , and the habendum . the office of the premisses is , to expresse the name of the grauntour , the grauntee , and the thing graunted or to be graunted . the office of the ( habendum ) is to limite the estate , so that the generall implication of the estate , which by construction of lawe passeth in the premisses , is by the ( habendum ) controlled and qualified . as in a lease to two persons , the ( habendum ) to one for life , the remainder to the other for life , altereth the generall implication of the ioynt tenancie in the freehould , which should passe by the premisses , if the ( habendum ) weare not . cooke . vol. . bucklers case . fo . . see vse . habere facias seisinam , is a writ iudicial , which lyeth , where a man hath recouered lands in the kings court , directed to the shyreeue , and commaunding him to giue him seisin of the land recouered . old nat . br . fol. . termes of the lawe : whereof see great diuersity also in the table of the register iudiciall , verb. habere facias seisinā . this writ is issuing sometime out of the records of a fine executorie , directed to the shyreeue of the countie , where the land lyeth , & commanding him to giue to the cognizee or his heires , seisin of the land , whereof the fine is levied . which writ lyeth within the yeare after the fine , or iudgemēt vpon a ( scire facias ) and may be made in diuers formes . west . parte . . symb . titulo fines . sect . . there is also a writ called habere facias seisinam , vbi rex habuit annum , diem , & vastum , which is for the redeliuery of lands to the lord of the fee , after the king hath taken his due of his lands , that was conuicted of felonie . register . orig . fol. . habere facias visum , is a writ that lyeth in diuers cases , where view is to be taken of the lands or tenements in question . see fitzh . nat . br . in iudice . verbo , ( view ) see bracton . li. . tract . . ca. . & lib. . parte . . ca. . see vi 〈…〉 see the register . iudiciall , fol. . , . . . . haberiects ( hauberietus pannus ) magn . chart . ca. . & pupilla oculi . parte . . ca. . hables , is the plurall of the french ( hable ) signifiing as much as a porte or hauen of the sea , whence ships doe set forth into other countries , and whether they doe arriue , when they returne from their voyage . this word is vsed . anno . hen. . cap. . haerede deliberando alii qui habet custodiam terrae , is a writ directed to the shyreeue , willing him to commande one hauing the body of him , that is ward to another , to deliuer him to him , whose ward he is by reason of his land . register . originall . fol. . b. haerede abducto , is a writ that lyeth for the lord , who hauing the wardship of his tenent vnder age by right , cannot come by his body , for that he is conueyed away by another . old . nat . br . fol. . see ravishment de gard , and haerede rapto , in regist . orig . fol. . haeretico comburendo , is a writ that lyeth against him , that is an heretike . viz. that hauing beene once conuinced of herisy by his bishop , and hauing abiured it , afterward falleth into it againe , or into some other , and is therevpon committed to the secular power . fitzh . nat . br . fol. . haga , is vsed as a kinde of latine word for a house . i finde in an auncient booke sometime belonging to the abbey of saint augustines in canterbury , that king stephen sent his writ to the shyreeue and iustices of kent , in this maner . stephanus rex anglorum vicecomiti & iusticiariis de kent salutem . praecipio quòd faciatis habere ecclesiae sancti augustini & monachis hagam suam quam gosceoldus eis dedit , it a bene & in pace & iustè & quietè & liberè , sicut eam eis dedit in morte sua coram legalibus testibus , &c. hagbut , see haque and haquebut . haye boote , seemeth to be compounded ( haye . i. sepes ) and ( bote. i. compensatio ) the former is french , and the second is saxon. and although it doe fall out sometime , that our words be so compounded : yet is it rare . wherefore it may be thought peraduenture to come as well from ( hag ) and ( boote ) which be bothe saxon words . it is vsed in our common lawe for a permission to take thorns and freeth to make or repaire hedges . halfe haque , see haque . half merk ( dimidia merka ) seemeth to signifie a noble . fitzh : nat : br : fol : . where he saith that in case a writ of right be brought and the seisin of the demaundant , or his auncester alleaged , the seisin is not traversable by the defendant , but he may tender or proferre the halfe merke for the inquirie of this seisin , which is as much to say in plainer termes , that the defendant shall not be admitted to deny , that the demandant or his auncester , was seised of the land in question , and to proue his deniall : but that hee shal be admitted to tender halfe a merke in money , to haue an inquirie made , whether the demandant , &c. were so seised or not . and in this signification i reade the same words in the old english natura breuium , fol. . b. viz. know ye , that in a writ of right of advouzen brought by the king , the defendant shall not proferre the halfe merke , ne iudgement finall shall be giuen against the king , &c. wherof fitz. vbi supra . m. giueth the reason , because in the kings case , the defendant shall bee permitted to trauerse the seisin by licence obtained of the kings sergeant . to this effect see fitz. nat . br . fol. . c. d. e. halfe seale , is vsed in the chauncerie for the sealing of commissions vnto delegates , appointed vpon any appeale in ecclesiasticall or marine causes , an . . elizab. cap. . halfe tongue . see medietas linguae . halymote , aliâs , healgemot , is a court baron . manwood parte prim . of his forest lawes . pag. . and the etymologie is the meeting of the tenents of one hall or maner . m. gwins preface to his reading , which for the esteeme thereof , is by copies spred into many mens hands . hallage , is a see due for cloths brought for sale to blackwell hal in london . coke vol. . fol. . b. hamlet ( hameletum ) is a diminutiue of ( ham ) which signifieth habitationem . camden . brit. pag. . & . the french ( hameau . i. viculus ) is also nere vnto it . kitchin hath hamel in the same sence . fol. . who also vseth hampsel for an ould house or cotage decayed . fol. . hamlet ( as stowe vseth it in ed. . ) seemeth to be the seate of a free holder . for there he saith , that the said king bestowed two maners and nine hamlets of land vpon the monasterie of westminster , for the keeping of yearely obits for his wife queene eleanor deceased . hameling of dogges , or hambling of dogges , is all one with the expeditating of dogges . manwood parte prim . of his forest lawes . pag. . & parte . cap. . num . . where he saith , that this is the auncient terme that foristers vsed for that mater , whence this word might be drawne , i dare not resolue : but it is not improbable , that hameling is quasi , hamhalding , that is , keeping at home , which is done by paring their feete so , as they cannot take any great delight in running abroade . see expeditate . hampsell . see hamlet . hamscken , see homesoken . m. skene de verb : significa : writeth it haimsuken , and deriueth it from ( haim ) a german word , signifiing a house or dwelling , and ( suchen ) that is to seeke , search , or persiew . it is vsed in scotland for the crime of him , that violently , and contrary to the kings peace , assaulteth a man in his owne house : which ( as he saith ) is punishable equally with rauishing of a woman . significat quietantiam miser●●rdiae intrationis in alienam domum vi & iniustè . fleta . lib. pri . cap. . see homesoken . hand in and hand out . anno . ed. . cap. . is the name of an vnlawful game . hand full , is foure inches by the standard . anno . h. . cap. hankwit alias ( hangwit ) or ( hengwit ) commeth of the saxon words ( hangen . i. pendêre ) and ( wit ) whereof reade in gultwit : rastall in the title , exposition of words faith , it is a liberty graunted vnto a man , wherby he is quit of a felon or theese hanged without iudgement , or escaped out of custodie . i reade it interpreted , mulcta pro homine iniustè suspenso . or whether it may be a libertie , whereby a lord chalengeth the forfeiture due for him , that fordoeth himselfe within his fee or not , let the reader consider . see bloodwit . hanper , ( haneperium ) haueper of the chauncerie . anno . r. . cap. prim . seemeth to signifie as fiseus originally doth in latine . see clerke of the hanaper . hanse , ( as ortelius in the index of his additament to his theater , verb. ansiatici . saith , ) is an old gothish word . where he sheweth not the interpretation . it signifieth a certaine societie of merchants , combined together for the good vsage and safe passage of merchandies from kingdome to kingdome . this societie was , and ( in part ) yet is , endued with many large priuiledges of princes , respectiuely within their territories . it had foure principall seates , or staples : where the almaine or dutch merchants being the erectours of this societie , had an especiall house , one of which was here in london , called gildhalda teutonicorum , or in our common language , the steelyard . of this you may reade more in the place of ortelius aboue mentioned . happe , commeth of the french ( happer . i. rapio , cum quadam velocitate capio ) and the french seemeth to come from the greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . it signifieth in our common lawe the same thing : as to happe the possession of a deede poll . litleton . fol. . haque , is a handgunne of about three quarters of a yard long , anno . . h. . ca. . & a. . et . . ed. . ca. . there is also the halfe haque or demy hake . see haquebut . haquebut , is that peece of artilery or gunne , which we otherwise call an harquebuse , being both french words . anno . . & . ed. . ca. . & anno . & . ph. & ma. ca. . hariot , aliâs , heriot ( heriotum ) is the saxon ( heregeat ) a litle altered , which is drawn from ( here . i. exercitus ) and a ( heriot ) in our saxons time signified a tribute giuen to the lord for his better preparation toward war. lamb. in his expl . of saxon words . verbo . hereotum . the name is still reteined , but the vse altered : for whereas , by m. lamb. opinion vbi supra , it did signifie so much as releife doth now with vs : now it is taken for the best cha●ell that a tenent hath at the houre of his death , due vnto the lord by custome , be it horse , oxe , kettle , or any such like . m. kitchin distinguisheth betweene heriot seruice and heriot custom . fol. . & . for interpretation whereof , you shall finde these words in brooke . titulo hariot . nu . . hariot after the death of the tenent for life , is hariot custome . for hariot service is after the death of tenent in fee-simple . the new expounder of the lawe termes saith , that hariot seruice ( in some mans opinion ) is often expressed in a mans graunt or deed , that hee holdeth by such seruice to pay hariot at the time of his death , that holdeth in fee simple . hariot custome is , where hariots haue bin payed time out of mind by custome . and this may be after the death of the tenent for life . see plowden . fol. . b. . a. b. braston saith , that heriotum , est quasi releuium . lib. . cap. . see reliefe . but britton . cap. . saith , that heriot is a reward made by the death of a tenent , to any lorde , of the best beaste found in the possession of the tenent deceased , or of some other according to the ordinance or assignement of the party deceased , to the vse of his lord , which reward toucheth not the lord at all , nor the heire , nor his inheritance , neither hath any comparison to be releife : for it proceedeth rather of grace or goodwill then of right , and rather from villeins then free men . see dyer , fol. . nu . . to the same effect . this in scotland is called herrezelda . compounded of herr . i. dominus , herus . and zeild .. i. gift . skene de verbo . signif . verbo herrezelda . hart , is a stagge of . yeares old compleate . manwood parte . of his forest lawes . cap. . nu . . which he hath out of budaeus de philologia . li. . and if the king or queene doe hunt him , and he escape away aliue , then afterward he is called a hart royall . and if the beast by the kings or queenes hunting be chased out of the forest and so escape : proclamation is commonly made in the places there about , that in regard of the pastime , that the beast hath shewed to the king or queene , noneshall hurt him , or hinder him from returning to the forest ; and then is he a hart royall proclaimed . idem . eodem . hauberk , commeth of the french ( haubert . i. lorica ) wherevpon he that holdeth land in france by finding a coate or shirt of mayle , and to be readie with it , when he shall be called , is said to haue hauberticum feudum . whereof hotoman writeth thus : hauberticum feudum gallicâ linguâ vulgò dicitur pro ( loricatum ) . i. datum vasallo ca conditione , vt ad edictum loricatus siue cataphractus praesto sit . nam vt lorica latinis propriè & minus vsitatè est tegmen de loro factum , quo maiores in bello vtebantur , quemadmodum seruius honoratus scribit in libro aeneidū frequentissimè autem pro aenea armatura in tegravsurpatur . sic apud gallos haubert propriè loricam annulis contextam significat , quam vulgus cotte de maille appellat . haec hot. in verbis feudal . verbo hauberticum feudum . hauberk with our awncesters seemeth to signifie , as in france , a shirt or coate of mayle and so it seemeth to be vsed , anno . ed. pri . stat . . ca. . though in these daies the word is otherwise written as ( halbert ) and signifieth a weapon well enough knowne . haward aliâs hayward , secmeth to be componnded of two french word ( hay . i. sepes ) & garde .. i. custodia ) it signifieth with vs , one that keepeth the common heard of the towne : & the reason may be , because one part of his office is to looke that they neither breake nor croppe the hedges of inclosed grounds . it may likewise come from the german ( herd . i. armentū & ( bewarren . i. custodire ) . he is a sworne officer in the lords court : and the forme of his oath you may see in kitchin. fol. . hawkers , be certaine deceitfull felowes , that goe from place to place , buying & selling , brasse , pewter , and other merchandise , that ought to be vttered in open market . the appellation seemeeth to growe from their vncertaine wandering , like those that with hawkes seeke their game , where they can finde it . you finde the word . anno . . h. . ca. . & anno . eiusdem . cap. quarto . headborow , is compounded of two words : ( heofod . i. caput ) and ( bor-he . i. pignus ) it signifieth him , that is chiefe of the franckpledg : and him that had the principall gouernment of them within his owne pledge . and as he was called headborowe , so was he also called borowhead , bursholder , thirdborow , tithing man , chiefe pledge , or borowelder , according to the diuersitie of speach in diuers places . of this see m. lamberd in his explication of saxon words . verbo centuria . and in his treatise of constables . and smith de repub. anglo . lib. . cap. . it nowe signifieth constable . see constable . healfang , is compounded of two saxon words ( hals . i. collū ) and ( fang . i. capere , captivare ) . see pylorie . heire ( haeres ) though , for the word , it be borowed of the latine ; yet , it hath not altogether the same signification with vs , that it hath with the civilians , for whereas they call him ( haeredem ) qui ex testamento succed 〈…〉 in vniuersum ius testatoris : the cōmon lawyers call him heire , that succeedeth by right of blood , in any mans lands or tenenients in fee , for there is nothing passeth with vs iure haereditatis , but onely fee. moueables , or chatels immoueable , are giuen by testament , to whom the testator listeth , or else are at the disposition of the ordinarie , to be distributed as he in conscience thinketh meete , glossa in provinciali constitut . ita quorundam . de testamentis . verbo . ab intestato . and whether a man enioy moueable goods and chatels , by will or the discretion of the ordinarie , he is not with vs called an heire : but onely he that succeedeth either by testament , or right of bloud in fee. cassanaeus in consuetud . burg. pag. . hath a distinction of haeres , which in some sort well accordeth with our lawe : for he saith , there is haeres sanguinis , & haereditatis . and a man may be haeres sanguinis with vs , that is , heyre apparent to his father , or other auncester : and yet may vpon displeasure , or meere will be defeated of his inheritance , or at the least , the greatest part thereof . heyre loome , seemeth to bee compounded of ( heire ) and ( loome ) that is , a frame , namely to weaue in . the word by time is drawne to a more generall signification , then at the first it did beare , comprehending all implements of houshold , as namely , tables , presses , cupbords , bedsteedes , wainscots , and such like , which by the custome of some countries , hauing belonged to a house certaine descents , are neuer inventaried after the decease of the owner , as chatels , but accrew to the heyre with the house it selfe . this word is twice metaphorically vsed in that diuine speech , made by that most worthy & complete noble man the earle of northampton , against that hellish , vgly , and damnable treason of gunpowder , plotted to consume the most vertuous king that euer raigned in europe , together with his gratious queene , and pretious posteritie , as also the three honorable estates of this renowned kingdome . heck , is the name of an engine , to take fish in the riuer of owse by yorke . anno . h. . cap. . heinfare , alias , hinefare , ( discessiofamuli à domino ) the word is compounded of ( hine ) a seruant , and ( fare ) an old english word , signifiing a passage . henchman , or heinsman , is a german word signifying ( domesticum , aut vnum de familia . ) it is vsed with vs , for one that runneth on foote attending vpon a man of honour or worship . anno . ed. . cap. . anno . henric. . cap. . hengwite , significat quiet antiā misericordiae de latrone suspenso absque consideratione . fleta lib. prim . cap. . see hankwit . herauld , ( heraldus ) is borowed by vs of the french ( herault ) and in m. verstegans iudgement proceedeth originally from two dutch words ( here . i. exercitus ) and ( healt . i. pugil magnanimus , ) as if he should be called ( the champion of the armie ) hauing by especiall office to chalenge vnto battell or combate . with vs it signifieth an officer at armes , whose function is to denounce warre , to proclaime peace , or otherwise to be employed by the king in martiall messages or other businesse . the romaines called them plurally ( feciales . ) m. stow in his annals deriueth them from heroes . pag. . which hee hath from other that writ of that subiect , whose coniecture i leaue to the reader . their office with vs , is described by polydore . lib. . in this sort : speaking of the knights of the garter , hee saith : habent insuper apparitores ministros , quos heraldos dicunt : quorum praefectus armorum rex vocitatur : hy belli & pacis nuncii . ducibus , comitibusque à rege factis insignia aptant , ac eorum funera curant . he might haue added farder , that they be the iudges and examiners of gentlemens armes , that they marshall all the solemnities at the coronations of princes , manage combats , and such like . there is also one and the same vse of them with vs , and with the french nation , whence we haue their name . and what their office is with them , see lupanus lib. prim . de magist . francorum , ca. heraldi . there be diuers of them with vs : whereof three being the chiefe , are called kings at armes . and of them garter is the principall , instituted and created by henry the fifth . stowes annals . pag. . whose office is to attend the knights of the garter at their solemnities , and to marshall the solemnities of the funerals of all the greater nobility , as of princes , dukes , marquises , earles , vicounts , and barons , yet i finde in plowden , casu reniger , & fogassa , that ed. the fourth graunted the office of the king of heralds , to one garter cum feudis & proficuis ab antiquo , &c. fol. . b. the next is clarentius , ordained by edward the fourth . for he attaining the dukedome of clarence by the death of george his brother , whom he beheaded for aspiring to the crowne , made the herald , which properly belonged to the duke of clarence , a king at armes , and called him clarentius . his proper office is , to marshall and dispose the funerals of all the lesser nobility , as knights , and esquires , through the realme of the south side of trent . the third is norroy , or northroy , whose office is the same on the north side of trent , that clarentius hath on this side , as may well appeare by his name , signifiing the northern king , or king of the north parts . beside these , there be sixe other properly called heralds according to their originall , as they were created to attend dukes , &c. in marshall executions . viz. york , lancaster , somerset , richemond , chester , windlesour . lastly there be foure other called marshals or pourswivants at armes , reckoned after a sort , in the number of heralds , and doe commonly succeede in the place of the heralds as they dye , or be preferred : and those be blew mantle , rougecrosse , rougedragon , and percull●● . the ( feciales ) among the romans were priests , nam n 〈…〉 pompilius diuini cultus inst 〈…〉 nem in octo partes diuisit , & ita itiam sacerdotum octo ordines constunit , &c. septimā partem sacrae constitutionis collegio corum adiccit , 〈◊〉 feciales vocantur . erant autem ex optimis domibus viri electi , per omne ipsi vitae tempus sacrati , quorum partes in eo versabantur , vt fidei publicae inter populos praeessent : neque iustum aliquod bellum fore censebatur : nisi id per feciales esset indictum . qui vt festus ait , a faciendo , quòd belli pacisque faciendae apud cos ius esset , feciales dicti sunt . corasius miscel . iuris ciui . li. . ca. . 〈◊〉 . . herbage ( herbagium ) is a french word , and signifieth in our common lawe , the fruit of the earth prouided by nature for the bitte or mouth of the catell . but it is most commonly vsed for a liberty that a man hath to feede his catell in another mans ground , as in the forest , &c. cromptons iurisdiction . fol. . herbenger commeth of the french ( heberger ) or ( esberger ) ( hesberger ) . i. hospitio excipere . it signifieth with vs , an officer of the princes court , that allotteth the noble men , and those of the household their lodgings . it signifieth also in kitchin , an inkeeper . fol. . hereditaments ( hereditamenta ) seeme to signifie all such things immoueable , be they corporeall or incorporeall , as a man may haue to himselfe and his heires , by way of inheritance . v. anno . h. . ca. . or not being otherwise bequeathed , doe naturally and of course descend to him which is our next heire of blood , and fall not within the compas of an executour , or administratour , as chatels doe . heriot . see hariot . hide of land ( hida terrae ) saxonicè ( hidelandes ) is a certaine measure or quantitie of land , by some mens opinion , that may be plowed with one plowe in a yeare : as the author of the newe termes saith , verbo hidage . by other men , it is an hundred acres . by beda ( who calleth it familiā ) it is as much as will maintaine a familie . crompton in his iurisdict . fol. . saith , that it consisteth of an hundred acres : euery acre in length . perches , and in breadth . perches , everie perch . foote and a halfe . and againe , fol. . a hide of land conteineth an hundred acres , & . hides or . acres , conteine a knights fee. of this reade more in m. lamberds explica : of saxon wordes , verbo hyda terrae . see carue . hide and gaine . old . nat . br . fol. . coke . lib. . tirringhams case . signifieth carable land . see gainage . hidage ( hidagium ) is an extraordinarie taxe , to be paide for euery hide of land , bracton li. . c. . writeth thus of it : sunt etiam quaedam communes praestationes , quae seruitia non dicuntur , nec de consuetudine veniunt , nisi cum necessitas intervenerit , vel cum rex venerit : sicut sunt hidagia , coragia , & carvagia : & alia plura de necessitate & ex consensu communi totius regni introducta , & quae ad dominum feudi non pertinent , &c. of this reade the new expounder of lawe termes , who saith that hidage is to be quit , if the king shall taxe all the lands by hides , and yet also graunteth it to be the taxe it selfe , saying that it was wont to be an vsuall kind of taxing as well for prouision of armour , as payments of money . hinefare . see heinfare . hidel . i. h. . ca. . seeemeth to signifie a place of protection , as a sanctuarie . hierlome , see heirlome . hine , seemeth to be vsed for a seruant at husbandrie and the master hine a seruant that ouerseeth the rest . anno . . r. . ca. quarto . hoblers ( hobellarii ) are certaine men , that by their tenure are tyed to maintaine a little light nagge , for the certifiing of any inuasion made by enemies , or such like perill toward the sea side , as porchmouth , &c. of these you shall reade . anno . ed. . stat . . cap. . & anno . eiusdem . stat . . ca. . hoghenhine , is he that commeth guestwise to a house , and lieth there the third night . after which time he is accounted of his familie in whose house he lieth : and if he offend the kings peace , his host must be answerable for him . bracton lib. . tract . . cap. . in the lawes of king edward set forth by m. lamberd , he is called agenhine . wheare you may reade more of this mater . hithe ( hitha ) is a petit hauen to land wares out of vessels or boates . new booke of entrise . fol. . colum . . hoggeshead , is a measure of wine or oyle containing the fourth parte of a tunne . that is . gallons . anno . i. r. . ca. . hoistings . see hustings . homage ( homagium ) is a french word , signifiing ( fidem clientularem . ) for in the originall grants of land and tenements by way of fee , the lord did not onely tie his tenents or feed men to certaine seruices : but also tooke a submission with promis and oathe , to be true and loyall to him , as there lord & benefactour . this submission was and is called homage : the forme wherof you haue in the second statute anni . . ed : . in these words : when a free man shall doe homage to his lord , of whome he holdeth in chiefe : he shall hold his hands together betweene the hands of his lord , and shall say thus : i become your man from this day forthe for life , for member , & for wordly honour , and shall owe you my faith for the land i hold of you : sauing the faith , that i doe owe vnto our soueraigne lord the king , and to mine other lords . and in this maner the lord of the fee , for which homage is due , taketh homage of euery tenent , as he commeth to the land or fee. glanvile . lib. . ca. . except they be women , who performe not homage but by their husbands , ( yet see fitzherbert . that saith the contrary in his natura br . fol. . f. ) reade glanuile more at large in the said first chapter , with the second , third & fourth ; the reason of this m. skene giueth de verbo . significatione , verbo homagium . viz. because homage especially concerneth seruice in warre . he saith also , that consecrated bishops , doe no homage , but onely fidelitie : the reason may be all one . and yet i find in the register . orig . fol. . a. that a woman taking liuerie of lands holden by knights seruice , must doe homage , but not being ioyntly infeoffed , for then shee doth only fealtie . and see glanuile in the ende of the first chapter of his nineth booke touching bishops consecrated , whome he denieth to performe homage to the king for their baronie , but onely fealty . fulbeck reconeileth this , fol. . a. in these words . by our lawe a religious man may doe homage , but may not say to his lord. egodevenio homo vester , because he hath professed himselfe to be onely gods man , but he may say , i doe vnto you homage , and to you shall be faithfull & loyall . see of this britton . cap. . homage , is either new with the fee , or auncestrell : that is , wheare a man and his auncesters , time out of minde , haue held their lands by homage to their lord , whereby the lord is tied to warrant the land vnto his tenent . newe termes of the lawe . this homage is vsed in other countries as well as ours , & was wont to be called hominium . see hotom . de verbis feudalibus , verbo . homo . skene diuideth it into liegium & non liegium . de verb. signifi . verbo homage . for the which see leige , and hotoman , disputatione de feudis tertia . homage is sometime vsed for the iurie in the courte baron , smith de repub. anglo . lib. . cap. . the reason is , because it consisteth most commonly of such , as owe homage vnto the lord of the fee. and these of the feudists are called pares curiae , sive ourtis , siue domus , sic dicuntur enim conuassalli siue compares , qui ab eodem patrono feudum receperunt , vel qui in eodom territorio feudum habent . hotoman . of this homage you may read in the . c. of the grand custumarie of normandie , where you shall vnderstand of other sorts of homage vsed by them , & straunge vnto vs. whereunto ioyne hotoman . disputat . de feudis , in diuers places & namely columna . c. hiis verbis . deinceps de nota hominii & feudalitiae subiectionis videamus . omnium quidem video esse commune , vt dexteras tanquam in foederibus iungerent : plerumque etiam vt dexteris aversis , osculum praeberent , interdum , vt ambas manus iunctas patrono contrectandas praeberent : supplicum & dedititiorum nomine , qui velatas manus porrigebant . and pag. . hiis verbis . multis galliae atque etiam angliae moribus constitutum est ( quod ex anglico litletonio intelleximus ) vt hominium seruili & supplici veneratione , ac plane tanquam a dedititiis praestetur . nam vasallus discinctus , nudo capite , ad pedet sedentis patroni proiectus , ambas manus iunctas porrigit : quas dum dominus suis manibus amplectitur , haec verba pronunciat . here , venio in tuum hominium & fidem , & homo tuus fio ore & manibus ; tibique iuro ac spondeo fidelem me tibi futurum eorum feudorum nomine , quae tuo beneficio accepi , &c. whereunto you may adde him , colum . . g. . f. & . b. & d. & f. of homage in scotland , reade m. skene , de verb. signif . verbo homagium . to whome you may also ioyne a plentifull discourse in speculo durandi . commonly called ( speculator ) among the civilians , titulo de feudis . homagio respectuando , is a writ to the escheatour commaunding him to deliuer seisin of lands to the heire , that is at full age , notwithstanding his homage not done , which ought to be performed before the heire haue liuerie of his lands , except there fall out some reasonable cause to hinder it . fitzh . nat . br . fol. . homine eligendo ad custodiendam peciam sigillipro mereatoribus aediti , is a writ directed to a corporation , for the choice of a new man to keepe the one part of the seale , appointed for statutes merchant , when the other is dead , according to the statute of acton burnel . register . orig . fol. . a. homine replegiando , is a writ for the bayle of a man out of prison : which , in what cases it lyeth , and what not , see fitz. nat . br . fol. . see also the register orig . fol. . see the new booke of entries . verb. homine replegiando . homine capto in withernamium , is a writ to take him , that hath taken any bondman or woman , and led him or her out of the countie , so that he or shee cannot be repleuied according to lawe . register orig . fol. . a. see withernam . homicide ( homicidium ) is the slaying of a man : and it is diuided into voluntarie , or casuall : homicide voluntarie is that , which is deliberated , and committed of a set mind , and purpose to kill : homicide volūtary , is either with precedent malice , or without . the former is murder , and is the felonious killing through malice prepensed of any person liuing in this realme vnder the kings protection . west . part . . simbol : tit . inditment . sect : . &c. vsque ad . where you may see diuers subdiuisions of this mater . see also glanuile . lib . cap : . bract. l : . tra : . c. . . & . brit. c. . . . see muder . mans slaughter & chaūce medley . homesoken , aliâs hamsoken ( hamsoca ) is compounded of ( ham. i. habitatio ) and ( soken . i. quaerere ) . it is by bracton . lib. . tract : . c : . thus defined . homesoken dicitur inuasio domus contra pacem domini regis . it appeareth by rastall in the title . expositiō of of words : that in auntient times some men had an immunitie to doe this : for he defineth homesoken to be an immunitie from amercements for entring into houses violently , and without licence . which thing seemeth so vnreasonable , that me thinketh he should be deceiued in that his exposition . i would rather thinke it should be a libertie , or power graunted by the king to some common person , for the cognisance or punishment of such a trangression . for so i haue seene it interpreted in an old note that i haue giuen me by a freind , which he had of an expert man toward the exchequer , but of what authoritie i know not . see hamsoken . hondhabend , is compounded of two saxon words ( hond . i. hand , and habend . i. hauing ) and signifieth a circumstance of manifest theft , when one is deprehended with the thing stollen in his hand . bracton . lib. . tract . . ca. . & . who also vse the ( handberend ) for the same , eodem cap. . honour ( honor ) is , beside the generall signification , vsed specially for the more noble sort of seigneuries : whereof other inferiour lordships , or maners doe depend by performance of customes and seruices , some or other , to those that are lords of them . and i haue reason to think that none are honours originally , but such as are belonging to the king. how be it they may afterward be bestowed in fee vpon other nobles . the maner of creating these honours may in part be gathered out of the statutes anno . h. . cap. . where hampton court is made an honour . and anno . eiusdem . cap. . & . whereby amptill and grafton be likewise made honours . and anno . eiusdem ca. . whereby the king hath power giuen by his leters patents , to erect foure seuerall honours . of westminster , of kingston vpon hull , saint osithes in essex , and dodington in berkshire . this word is also vsed in the selfe same signification in other nations . see ca. licet causam . extra de probationibus . and minsinger vpon it . nu . . in reading i haue obserued thus many honours in england : the honour of aquila . camden . britan. pag. . of clare . pag. . of lancaster . pag. . of tickhill . pag. . of wallingford , notingham , boloine . magna charta . cap : . of west greenewish , camd : pag. . of bedford . pupil . oculi . parte . . cap. . of barhimsted . brooke , titulo tenure . nu . . of hwittam . camd pag. . of plimpton . cromptons iurisd . fol. . of creuecure , and hagenet febert . anno . h. . cap. . of east greenewish . of windsour in berk shire , and of bealew in essex . anno . h. . ca. . of peverell in the county of lincolne . register orig . fol. . horngeld , is compounded of horn and gildan or gelder . i. soluere . it signifieth a taxe within the forest to be paid for horned beasts . cromptons iurisd . fol. . and to be free thereof , is a priuiledge graunted by the king vnto such as he think eth good . idem , ibidem . and rastall in his exposition of words . hors de sonfee , is an exception to auoide an action brought for rent , issuing out of certaine land by him that pretendeth to be the lord , or for some customes and seruices . for if he can iustifie that the land is without the compas of his fee , the action falleth . v. brooke . hoc titulo . hospitallers ( hospitalarii ) were certaine knights of an order , so called , because they had the care of hospitals , wherein pilgrims were receiued to these pope clement the fift transferred the templers , which order , by a councell held at vienna in fraunce , he suppressed for their many and great offences , as he pretended . these hospitallers be now the knights of saint iohn of malta . cassan : gloria mundi . parte . . considerat . . this constitution was also obeyed in ed. the . time here in england , and confirmed by parlament . tho. walsing ham . in historia ed. . stawes annals . ibidem . these are mentioned anno . ed. . ca. . & anno . h. . ca. . hostelers ( hostellarius ) commeth of the french ( hosteler . i. hospes ) and signifieth with vs , those that otherwise we call inkeepers , an . . ed. . stat . . c. . hotchepot ( in partem positio ) is a word that commeth out of the lowecountries , where ( hutspot ) signifieth flesh cut into pretie peeces , and sodden with herbs or roots , not vnlike that which the romans called farraginem . festus . litleton saith that literally it signifieth a pudding mixed of diuers ingredients : but metaphorically a commxtion or putting together of lands , for the equall diuision of them being so put together . examples you haue diuers in him . fo . . and see briton , fol : . there is in the ciuile law collatio bonorum answerable vnto it , whereby if a child aduaunced by the father in his life time , doe after his father decease , chalenge a childs part with the rest , he must cast in all that formerly he had receiued , and then take out an equall share with the others . de collatio : bonorum . Π. lib : . titulo . . housebote , is compounded of house , and bote. i. compensatio . it signifieth estovers out of the lords wo●de to vphould a tenement or house . houserobbing , is the robbing of a man in some part of his house , or his booth , or tēt in any faire or market , and the owner , or his wife , children , or seruants , being within the same . for this is felonie by anno . . h : . cap. i. and. anno . . ed. . cap . yea , now it is felonie thoughe none be within the house . anno . . eliz : ca. . see burglarie . see west . part . . sym . tit . inditemēts , sect : . hudegeld , significat quiet antiam transgressionis illatae in seruum transgredientem . fleta lib. i. ca : . quare whether it should not be hindegeld . hue , and crie ( hutesium & clamor ) come of . french words : ( huier ) and ( crier ) both signifiing to shoute or cry a loude . m. manwood , parte . . of his forest lawes . ca : . nu . . saith , that hew is latine , meaning belike the interiection : but vnder reformation , i think he is deceiued ; this signifieth a pursuite of one hauing committed felonie by the high way , for if the party robbed , or any in the companie of one murdered or robbed , come to the constable of the next towne , and will him to raise hiew and crie , or to make pursuite after the offēdour , describing the partie , and shewing as neere as he can , which way he is gone : the constable ought forthwith to call vpon the parishe for aide in seeking the felon : and if he be not found theare , then to giue the next constable warning , and he the next , vntill the offender be apprehended , or at the least , vntill he be thus persued to the sea side . of this reade bracton . lib : . tracta : . ca. . smith de repub : anglo : lib : . cap : . and the statute anno . . ed. . statute of winchest . c. . & . a. . ed : . c : . & anno . . el : c : . the normans had such a persuite with a crie after offenders as this is , which they called haro : whereof you may reade the grand custumarie , cap. . some call it harol : the reason whereof they giue to be this , that there was a duke of normandy called rol , a man of great iustice and seruerity against grieuous offenders : and that thereupon when they follow any in this persuite , they crie ha-rol , as if they should say , ah rol where art thou that wert wont to redresse this , or what wouldst thou doe against these wretches , if thou now wert liuing . but in truth i thinke it commeth , from harier . 〈◊〉 flagitare , inquiet are , vrgere . hue is vsed alone . anno . ed. pri . stat. . this the scots call huesium and m. skene de verbo . signif . verb. huesium , saith , that it commeth of the french oye● . i. audite . making one etymologie of this and the crie vsed before a proclamation , the maner of their hue and cry , as he there describeth it , is that if a robberie be done , a horne is blowne , and an out crie made : after which , if the partie flie away , and not yeeld himselfe to the kings bayliffe , he may be lawfully slaine , and hanged vp vpon the next gallowes . of this hue and crie , see cromptons iustice of peace . fol. . b. huissers . see vshers . hundred ( hundredum ) is a part of a shire , so called originally , because it conteined ten tithings called in latine decennas . these were first ordeined by king alfred the . king of the west saxons . stowes annals pag. . of these thus speaketh m. lamb. in his explica . of saxon words . verbo , centuria● aluredus rex , vbi cum guthruno daca foedus inierat , prudentissimum illud ●lim a ietr●● moysi datum secutus consilium , angliamprimus in satrapias , centurias , & decurias , partitus est . satrapiam , shire a shyran ( quod parti● significat ) nominavit : centuriam , hundred : & decuriā , toothing siue tienmantale . i. decemvirale collegium appellavit : atque iisdem nominibus vel hodie vocantur , &c. and againe afterward : decrevit tum porro aluredus liberae vt condicionis quisque in centuriam ascriberitur aliquam , atque in decemviralt aliquod coniiceretur collegium . de minoribus negotiis decurionet vt tudicarent : ac si●quae esset re● difficilior , ad centuriam deferrent : diffi●illimas denique & maximi mo●●enti lites , senator & praepositus in frequenti illo ex omni satrapia conventu componerent . modus autem iudicandi quis fuerit , ethelredus rex , legum , quas frequenti apud vanatingum senatu sancivit , capite . hiis fere verbis exponit . in singulis centuriis comitia sunto , atque liberae condicionis viri duodeni , aetate superiores , vnà cum praeposito , sacra tenentes iur anto , se adeo virum aliquem innocent em haud damnaturos sortemve absoluturos . this forme of diuiding counties into hundreds for beter gouernment , howsoeuer it is attributed to king alfred here with vs : yet he had it from germanie , whence he and his came hither . for there centa or centena is a iurisdiction ouer a hundred townes , and conteineth the punishment of capitall crimes . andraeas kitchin. in his tractate , de sublimi & regio territorii iure . ca. . pa. . where he also sheweth out of tacitus , de situ & moribus germa . that this diuiuision was vsuall amongst the germans before his daies . by this you vnderstand the original and old vse of hundreds , which hold still in name , and remaine in some sort of combination , for their seuerall seruices in diuers respects , but their iurisdiction is abolished , and growne to the countie court , some few excepted , which haue beene by priuiledge annexed to the crowne , or graunted vnto some great subiect , and so remaine still in the nature of a fraunchise . and this hath beene euer sithence the stat . anno . ed. . stat . . ca. . whereby these hundred courts formerly fermed out by the shyreeue to other men , were reduced all , or the most part , to to the countie court , and so haue and doe remaine at this present . so that where you read now of any hundred courts , you must know , that they be seuerall fraunchises , wherein the shyreeue hath not to deale by his ordinarie authoritie , except they of the hundred refuse to doe their office . see west . parte . . symbol . lib. . sect . . see. turn . the newe expounder of lawe termes saith , that the latine hundredum is sometime vsed for an immunitie or priviledge , whereby a man is quit of mony or customes due to the gouernours , or hundreders . hundreders ( hundredarii ) be men empaneled or fit to be empaneled of a iurie vpon any controversie , dwelling within the hundred where the land lieth , which is in question , cromptons iurisdict . fol. . & anno . henrici . cap. . it signifieth also him that hath the iurisdiction of a hundred , and holdeth the hundred court . anno . . ed. pri . ca. . anno . . ed. . stat . . & anno . ed. . ca. . and sometime is vsed for the bayliffe of an hundred . hornin his mirrour of iustices , li. . ca del office del coroner . hundredlaghe , signifieth the hundred courte , from the which all the officers of the kings forest were freed by the charter of canutus . ca. . manwood . parte . . pag. . huors , see conders . huseans , commeth of the french ( houseaux ) i. ocrea , aboote . it is vsed in the statute anno . . ed. . ca. . hustings ( hustingum ) may seeme to come from the french ( haulser . i. tollere , attollere , suberigere ) for it signifieth the principall and highest court in london . anno . h. . ca. . & fitzh . nat . br . fol. . see anno . . ed. pri . ca. vnico . other cities and townes also haue had a court of the same name , as winchester , lincolne , yorke , and sheppey , and others , where the barons or citizens haue a record of such things as are determinable before them . fleta . libro . cap. . husfastene , is he that holdeth house and land , bracton lib. . tractat . . ca. . his words be these , et in franco plegio esse debet omnis , qui terram tenet & domum , qui dicuntur husfastene , & etiam alii qui illis deserviunt , qui dicuntur folgheres , &c. i a i arrock : anno rt. . ca. . is a kinde of cork so called . identitate nominis , is a writ that lyeth for him who is vpon a capias or exigent , taken and committed to prison for another man of the same name : whereof see the forme and farder vse , in fitzh . nat . br . fol. . see the register originall , fol. . idiot , and he that afterward becometh of insane memory , differeth in diuers cases , coke . fol. . b. lib. . see here following idiota inquirenda . idiota inquirenda vel ex aminanda , is a writ that is directed to the excheatour or the shyreeue of any county , where the king hath vnderstanding that there is an idiot , naturally borne so weake of vnderstanding , that he connot gouern or mannage his inheritance , to call before him the partysuspected of idiocie , & examin him : and also to inquire by the oaths of twelue men , whether he be sufficiently witted to dispose of his owne lands with discretion or not , and to certifie accordingly into the chauncery : for the king hath the protection of his subiects , & by his prerogatiue the gouernmēt of their lands and substance , that are naturally defectiue in their owne discretion : statut . de praerogatiua regis editum anno . ed. . cap. . wherof read stawnf . praerog . cap. . and of this writ , read fitzh . nat . br . fol. . see the register orig . fol. . ietzon se flotzon . ieofaile , is cōpoūded of . french words , i' ay faille : i. ego lapsus sum : & signifieth in our commō lawe , an ouer-sight in pleading , touching the which you haue a statute anno . h. . cap. . whereby it is enacted , that if the iury haue once passed vpon the issue , though afterward there be found a ieofaile in the pleading , yet iudgement shall likewise be giuen according to the verdict of the iury. see brooke , tit . rrepleder : the author of the new tearms of law saith , that a ieofaile is when the parties to any suite , haue in pleading proceeded so farre , that they haue ioyned issue , which shal be tried or is tried by a iury or inquest : and this pleading or issue is so badly pleaded or ioyned , that it will be errour if they proceed : then some of the said parties may by their councell shew it to the court , as well after verdict giuen and before iudgement , as before the iury be charged : the shewing of which defects before the iury charged , was often when the iury came into the court to trie the issue , then the councell which will shew it , shall say : this inquest you ought not to take , and if it be after verdict , then he may say : to iudgement you ought not to goe : and because of this many delayes grew in suites , diuers statutes are made to redresse them : viz. . h. . c. . & others in q. elizabethes daies , and yet the fault litle amended . ignoramus , is a word properly vsed by the grand enquest empaneled in the inquisition of causes criminall and publique : and writen vpon the bill , whereby any crime is offered to their cōsideration , when as they mislike their euidence , as defectiue or to weake to make good the presentment . the effect of which word so written is , that all farder inquiry vpon that party for that fault , is thereby stopped , and he deliuered without farder aunswer . it hath a resemblance with that custome of the auncient romans : where the iudges , when they absolued a person accused , did wright a. vpon a litle table prouided for that purpose . i. absoluimus : if they iudged him guilty , they writ c. id est . condemnamus : if they found the cause difficult and doubtfull , they writ . n. l. id est . non liquet . asconius pedianus in oratio . pro milone . alexander ab alexandro . genial . dierum , li. . ca. . ikenildstreate , is one of the four famous wayes that the romans made in england , taking the beginning ab icenis , which were they that inhabited northf . southf . and cambridg shyre , camd. britan. fol. . see watlingstreat . imparlance ( interlocutio vel interloquela ) is a petition made in court vpon the count of the demanndant by the tenent , or declaration of the plaintife , by the defendant , whereby he craueth respight , or an other day to put in his aunswer , see brooke , titulo continuaence : see dies datus : imparlaunce seemeth to be generall or speciall : speciall imparlaunce is with this clause saluis omnibus aduantagiis tam ad iurisdictionem curiae , quàm breue & narrationem . kitchin : fol. . then generall in reason must be that , which is made at large without inserting that or the like clause . see emperlaunce impeachment of waste , ( impetitio vasti ) commeth of the french ( empeschement . i. impedimentum ) and signifieth with vs , a restraint from committing of waste vpon lands or tenements : see waste . implements , commeth of the french ( emploier , i. insumere in re aliqua ) it signifieth with vs , things tending to the necessarie vse of any trade or furniture of househould . impost , is a french word signifiing tribute , comming of the verb ( imposer ) i : iniungere , irrogare , it signifieth with vs , the taxe receiued by the prince for such merchandise , as are brought into any heauen from other nations : anno . . elizabeth . cap : . and i thinke it may in some sort be distinguished from customs , bicause custom is rather that profit , which the prince maketh of wares shipped out of the land : yet may they be confounded : improuement , see approue . in casu consimili . is a writt : see casu consimili . in casu prouiso : is a writt : see casu prouiso . incident ( incidens ) signifieth a thing necessarily depending vpon another as more principall : for example , a court baron is soe incident to a maner , and a court of piepowders to a faier , that they cannot be seuered by graunt : for if a maner or faire be graunted , these coutts cannot be referued . kitchin. fol : . incroche ( incrociare ) se encrochments . admirals , and their deputies doe incroche to themselues iurisdictions , &c : anno . . rich : . ca : . indenture ( indentura ) is a writing comprising some contract betwene two , and being indented in the toppe aunswerably to another , that likewise conteineth the same contract : this the latines called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which among the ciuilians , is defined to be scriptura inter creditorem & debitorem indentata , in cuius sciscura literis capitalibus haec dictio 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or plurally 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 scribitur . and it differeth from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , quia hoc manu vnius tantùm , puta debitoris scribitur , & penes debitorem relinquitur pruinc . consttut . de offic : archidiaco : cap : pri : verbo in scriptis . vid. gothosr : in notis ad l. § . . Π. ad leg . corn. de fals . indicauit , is a writ or prohibition that lieth for a patron of a church , whose clerk is defendant in court christian , in an action of tithes commenced by another clerke , and extending to the fourth part of the church , or of the tithes belonging vnto it . for in this case , the suite belongeth to the kings court , by the statute westm : : cap : . wherfore the patron of the defendant , being like to be preiudiced in his church and aduowzen , if the plaintife obteine in the court christian , hath this means to remoue it to the kings court ; the register originall fol. . b. see ould . nat : br . fol. . & the register fol : . and britton . cap : . fol. ● . a. indictment ( indictamentum ) see indightment . indiuisum , is vsed in the common law , for that which two houlde in common without particiō . kitchin. fol. . in these words : he houldeth pro indiuiso , &c : indorsment ( indorsamentum , signifieth in the common law , a condition writen vpon the other side of an obligation : west : part : . simbol : sect : . infang , alias infeng , significat quietantiam prioris prisae ratione conuiuij , fleta l : i. cap : . infangthef , or hinfangthefe , or infangtheof , is compounded of . saxon words : the preposition ( in ) ( fang or fong ) to take or catch , & ( thef ) it signifieth a priuiledge or libertie graunted vnto lords of certaine maners , to iudge any theeife taken within there fee. bracton . lib. . tracta . . cap. . in the lawes of king edward , set out by m. lambard : nu . : you haue it thus described : infangthefe , iustitia cognoscentis latronis sua est , de homine suo , si captus fuerit super terram suam : illiverò qui non habent has consuetudines , coram insticia regia rectum faciant in hundredis , vel in wapentachiis , vel in scyris : the definition of this see also in britton : fol : . b. and roger houeden . parte poster . suorū annalium . fol. . b. & m. skene de verborum significatione , verbo infangthefe , who writeth of it at large , reciting diuersitie of opinions touching this and outfangthefe : fleta saith that ( infangtheef ) for soe he writeth it , dicitur latro captus in terra alicuius seisitus aliquo latrocinio de suis propriis hominibus . libro . cap : : § infangtheefe . information , see enditement : see the new termes of lawe . informer ( informator ) in french ( informateur ) is an officer belonging to the exchequer or kings bench , that denounceth or complaineth of those that offend against any penall statute . they are otherwise called promotors , but the men being bashfull of nature , doe blush at this name : these among the ciuilians are called delatores . informatus non sum , is a formall aunswer or of course made by an atturney , that is commaunded by the court to say what he thinketh good in the defence of his client , by the which he is deemed to leaue his client vndefended , and so iudgement paseth for the aduerse party . see the new booke of entries . titulo non sum informatus . and iudgement . ingressu , is a writ of entrie , that is , whereby a man seeketh entry into lands or tenements ; it lyeth in many diuers cases wherit hath as many diuersities of formes . see entry : this writ is also called in the particular , praecipe quod reddat : because those be formall words in all writs of entry . the writs as they lye in diuers cases , are these described in the old natura breu : ingressu ad terminum qui praetertit , fol. . originall regist . sol . . which lyeth where lands or tenements are let to a man for terme of yeares , and the tenent houldeth ouer his terme : ingressu dum non fuit compos mentis . fol. . original : regist : fol. . which lyeth where a man selleth land or tenement when he is out of his wits , &c. ingressu dum fuit infra aetatem , fol. . register originall fol. . which lyeth where one vnder age selleth his lands , &c. ingressu super deseisina in le quibus fol. . regist . orig . fol. . which lyeth where a man is disseised and dyeth , for his heire against the disseisour . ingressu in per fol. . original register fol. . ingressu sur cui in vita , fol. . originall register fo . . both which see in enrry : ingressu cause matrimonii praelocuti . fol. . original register fol. : which see causa matrimonii praelocuti . ingressu in casu proviso , f. . register original . fo . . which see casu pro viso . ingressu cui ante diuortium . fol. . original register fol. . for which see , cui ante diuorium . ingressu in consimili casu , fol. . originall register fol. . for which see confimili casu . ingressu sine consensu capituli , fol. . original register , fol. : for which see sine assensu capituli . ingressu ad communem legem . fol. . originall register , fol. . which lyeth , where the tenent for terme of life or of anothers life , tenent by curtesie , or tenent in dower maketh a feofment in fee , & dyeth ; he in the reuersion shall haue the foresaid writagainst whomsoeuer that is in the land , after such feofment made . ingrossing of a fine , is making the indentures by the chirographer , and the deliuery of them to the party vnto whom the cognisance is made . fitzh . nat . br . fol. . a. ingrosser ( ingrossator ) commeth of the frence grosseur : i. crassiiudo . or grosier . i. solidarius venditor , it signifieth in the common law , one that buieth corne growing , or dead victuall , to sell againe , except barly for mault , oats for oatemeale , or victuals to retaile , badging by licence , and buying of oiles , spices , and victualls , other then fish or salte . anno . . edward : . cap : . anno . . elizab : cap : . anno . . elizab. cap : . these be m. wests . words , parte . . simbol : titulo inditements : sect . . howbeit this definition rather doth belong to vnlawfull ingrossing , then to the word in generall . see forstaller . inheritance ( hareditas ) is a perpetuity in lands or tenements to a man and his heirs . for litleton cap : i. lib : i : hath these words : and it is to be vnderstand , that this word ( inheritance ) is not onely vnderstand , where a man hath inheritance of lands and tenements by discent of heritage , but also euery fee simple or fee taile that a man hath by his purchase , may be said inheritance : for that , that his heires may inherit him : seuerall inheritance is that , which two or moe hould seuerally , as if two men haue land giuen them to them and the heires of their two bodies , these haue ioynt estate during their liues , but their heires haue seuerall inheritance . kitchin. fol : . see the new terms of law . verbo enheritance : inhibition ( inhibitio ) is a writt to inhibit or forbid a iudge from farder proceding in the cause depēding before him : see fitzh : nat : br : fol : . where he putteth prohibition and inhibition together : inhibition is most commonly a writ issuing out of a higher courte christian to a lower and inferiour , vpon an appeale . anno . . h. . cap : . and prohibition out of the kings courte to a court christian , or to an inferiour temporall court . iniunction ( iniunctio ) is an interlocutory decree out of the chācerie , sometimes to giue possession vnto the plaintife , for want of apparence in the defendant , sometime to the kings ordinary court , and somtime to the court christian , to stay proceeding in a cause vpon suggestion made , that the regour of the law , if it take place , is against equitie and conscience in that case . see west : parte . . simb : titulo proceeding in chauncery sect : . inlawgh ( inlagatus ) vel homo sub lege ) signifieth him that is in some frank pledge , of whome take bractons words , l. . tracta : . cap. h. nu . . minor verò , & qui infra aetatem duodecim annorū fuerit , vtlagari non potest nec extra legem poni : quia ante talem aetatem non est sub lege aliqua , nec in decenna , non magis quam foemina . quae vtlagari non potest quia ipsa non est sub lege . i. inlowghe anglicè : sc : in franco plegio siue decenna sicut masculus duodecim annorum & vlteriūs , &c. inlaughe , significat hominem subiectum leg i , fleta li. i. cap. . inlagary ( inlagatio ) is a restitution of one outlawed , to the kings protection , and to the benifite or estate of a subiect . bracton : lib. tracta : cap. . nu . . . . britton cap : . inmates , are those that be admitted to dwell for their mony iointly with another mā , though in seuerall roomes of his mantiō house , passing in and out by one doore , and not being able to maintaine themselues , which are inquiralle in a leete . kitchin. fol : where you may reade him at large who be properly inmates in intendment of law , and whoe not . imprision , anno ed : statu : : cap. vnico . seemeth to signifie so much as an attempt , comming of the french empris ) which is all one with ( enterpris ) an enterprise . inquirendo , is an authoritie giuen to a person or persons , to inquire into some thing for the kings aduantage , which in what cases it lieth , see the register originall , fol. . . . . . . . inquisition ( inquisitio ) is a maner of proceeding in maters criminall , by the office of the iudge , which hostiensis defineth thus : inquisitio nihil aliud est quàm alicuius criminis manifesti ex bono & aquo iudicis compeientis canonicè facta investigatio , ca. qualiter . de accusatio . in the decretales : this course we take here in england by the great enquest before iustices in eyre : see eyre . and the places in bracton and britton there noted ; inquisition is also with vs , vsed for the king in temporall causes and profits , in which kinde it is confounded with office : stawnf praerog . fo . . see office. inrolement ( irrotulatio ) is the registring , recording or entring of any lawful act in the rowles of the chauncerie , as recognisance acknowledged , or a statute or a fine leuied . see west . parte . symbol . titulo fines . sect . . insimul tenuit , is one species of the writ called a formdon . see formdon . intakers , be a kinde of theeues in ridesdall . anno . . h. . ca. . so called , as it seemeth , because they dwelling within that libertie , did receiue in such booties of catell or other things as the out parters brought in vnto them . see out parters . interdiction ( interdictio ) is vsed in the common lawe , in the same signification that it hath in the canon lawe , where it is thus defined : interdictio est censura ecclesiastica prohibens administrationem diuinorum : c. quod in te : de paenitent : & remiss . in the decretals : and thus is it vsed . anno . . h. . cap. . interpleder , see enterpleder . intrusion ( intrusio ) by bracton lib. . cap. . is thus defined . intrusio est , vbi quis ( cui nullum ius competit in re nec scintilla iuris , possessionem vacuam ingreditur , quae nec corpore nec animo possidetur , sicut haereditatem iacentem antequam adita fuerit ab harede , vel saltem a domino capitals ratione , custodiae , vel ratione eschaeta si forte heredes non existant , vel si post mortem alicuius per finem factum , vel per modum donationis , vbi successio sibi locum vendicare non possit , vel si post mortem alicuius qui tenuit ad vitam , debeat tenementum reverti ad proprietariū , ponat quis se in seisinā antequā tenemētū illud veniat ad illū ad quem pertinere deberet ex praedictis causis , with whome agreeth fleta , lib. . cap. . § . . & . see britton cap. . to the same effect . see the newe booke of entries . verbo entrusion . see entrusion . see disseisin : the author of new terms of lawe would haue intrusion especially after the tenent for life is deceased . verbo , abatement . and abatement in all other cases : but i finde not any latine word for abatement but intrusio , so that i rather thinke these . english words to bee synonyma : and fleta cap. suprà citato , seemeth direct against this his opinion . intrusione , is a writ that lyeth against the intruder : register : fol. . inuentarie ( inuentarium ) is a description or repertory orderly made of all dead mens goods and catels prized by foure credible men or more , which euery executor or administrator ought to exhibite to the ordinary , at such times as he shall appoint the same . west . parte prim : simb : lib : . sect : . where likewise you may see the forme : this inuentary proceedeth from the ciuill law ; for whereas by the auncient law of the romans , the heire was tyed to aunswer all the testators debts , by which meanes heritages were preiudiciall to many men and not profitable : iustinian to encorage men the better to take vppon them this charitable office , ordained , that if the heire would first make and exhibite a trew inuentary of all the testatours substance comming to his hand , he should be no furder charged , then to the valew of the inuentarie : l. vlt. cod. de iure de liberando . inuest ( inuestire ) commeth of the french word ( inuester ) and signifieth to giue possession . he are hotoman de verbis fendalibus , verbo inuestitura : inuestitura barbarum nomen , barbaricam quoque rationem habet . nam vt ait feudista , lib. . titulo . . inuestitura propriè dicitur quando hasta vel aliquod corporeum traditur à domino ; with vs we vse likewise to admit the tenents by deliuering them a verge or rodd into their hands , and ministring them an oath , which is called inuesting : others define it thus : inuestitura , est alicuius in suumius introductio . inure , signifieth to take effect : as the pardon inureth : stawnf : praerog : fol. . see enure . ioynder , is the coupling of two in a suite or action against another : fitzh . nat . br . fol. . h. ● . h. . & h. in many other places , as appeareth in the index . verbo ioynder . ioynt tenents ( simul tenentes ) liber intrationum , titulo formdon in vieu . . be those that come to and hould lands or tenements by one title pro indiuiso , or without partition . litleton lib. . cap. . and termes of law : see tenents in common . ioyning of issue ( iunctio exitus ) see issue . iointure ( iunctura ) is a couenant , whereby the husband or some other freind in his behalfe assureth vnto his wife , in respect of mariage , lands or tenements for terme of her life , or otherwise , see west : part : . symbol . lib. . titulo couenants . sect . . and the new expositiō of the law terms : it seemeth to be called a ioynture , either because it is granted ratione iuncturae in matrimonio , or because the land in franke mariage , is giuen ioyntly to the husband and the wife , and after to the heirs of their bodies , whereby the husband and wife be made ioynt tenents during the couerture . coke li. . butler & bakers case . f. . b. see franckmariage . ioynture , is also vsed as the abstract of ioynt tenents . coke lib. . the marques of winchesters case . fol. . a. b. iunctura , is also by bracton and fleta vsed for ioyning of one bargaine to another . fleta lib. . ca. . touching the selfe same thing : and therefore ioynture in the first signification , may be so called , in respect that it is a bargaine of liuelyhood for the wife : adioyned to the contract of mariage . iourn choppers , anno . hen. . cap. . be regraters of yarn . whether that we now call ( yarne ) were in those daies called ( iourn ) i cannot say : but ( choppers ) in these daies are well knowne to be chaungers . as choppers of churches , &c. iourneyman , commeth of the french ( iournee ) that is a day or dayes worke . which argueth that they were called iourneymen , that wrought with others by the day , though now by statute it be extended to those likewise , that couenant to worke in their occupation with another by the yeare . anno quinto elizabeth . cap. quarto . issue ( exitus ) commeth of the french ( issir : i. emanare ) or the substantiue ( issue : i. exitus , euentus ) it hat diuers applications in the common lawe : sometime being vsed for the children begotten betweene a man and his wife : sometime for profits growing from an amercement or fine , or expenses of suite : sometime for profits of lands or tenements : west : . anno . . edw. prim . cap. . sometime for that point of mater depending in suite , wherupon the parties ioyne and put their cause to the triall of the iury : and in all these it hath but one signification , which is an effect of a cause proceeding . as the children be the effect of the mariage betweene the parents : the profits growing to the king or lord from the punishment of any mans offence , is the effect of his transgression : the point referred to the triall of twelue men is the effect of pleading or processe . issue , in this last signification , is either generall or speciall : generall issue seemeth to be that , whereby it is referred to the iury to bring in their verdict , whether the defendant haue done any such thing , as the plaintife layeth to his charge . for example : if it be an offence against any statute , and the defendant pleade : not culpable : this being put to the iury , is called the generall issue : and if a man complaine of a priuate wrong which the defendant denieth , & plead , no wrong nor disseisin , and this be referred to the . it is likewise the generall issue . kitchin. fol. . see the doctor and student , fol. . b. the speciall issue then must be that , where speciall mater being alleadged by the defendant for his defence ; both the parties ioyne therevpon , and so grow rath er to a demurrer , if it be quaestio iuris , or to tryall by the iurie , if it be quaestio facti ; see the new booke of entries : verbo , issue . iuncture see iointure . iure patronatus , see the newe booke of entries , verbo iure patronatus in quar● impedit . fol. . col . . iurie ( iurata ) commeth of the french ( iurer : i iurare . ) it signifieth in our common lawe , a companie of men as . or . sworne to deliuer a truth vpon such euidēce , as shal be deliuered them touching the matter in question . of which triall who may and who may not be empaneled , see fitzh . nat . br . fol. . d. and for beter vnderstanding of this point , it is to be knowne , that there be . . maner of trials in england : one by parlament , another by battle , and the third by assise or iurie : smith de repub . anglorum . lib : . cap : . . . touching the . former reade him , and see battell , and combat , and parlament : the triall by assise ( be the action ciuile or criminall , publick or priuate , personall or reall ) is referred for the fact to a iurie , and as they finde it , so passeth the iudgement . and the great fauour that by this the king sheweth to his subiects more then the princes of other nations , you may reade in glanuil . lib : : cap : . where he called it regale beneficium clementis principis de consilio procerum populis indultum , quo vitae hominū , & status integritati tam salubriter consulitur ; vt in iure , quod quis in libero soli tenemento possidet , retinendo , duells casum declinare possint homines ambiguum , &c : see the rest . this iury is not vsed onely in circuits of iustices errant , but also in other courts and maters of office , as if the escheatour make inquisition in any thing touching his office , he doth it by a iury or inquest : if the coroner inquire how a subiect found dead , came to his end : he vseth an inquest . the iustices of peace in ther quarter sessions , the shyreeue in his county and turne , the baylife of a hundred , the stewarde of a court leete or court baron , if they inquire of any offence , or descide any cause betweene party and party , they doe it by the same maner . so that where it is said that all things be triable by parlament , battell , or assise ; assise in this place is taken for a iury or enquest , empaneled vpō any cause in a court , where this kind of triall is vsed : and though it be commonly deemed , that this custome of ending and desciding causes proceede from the saxons and brittons , and was of fauour permitted vnto vs by the conquerour : yet i finde by the grand customarie of normandie . cap : . that this course was vsed likewise in that countrie . for assise is , in that chapter , defined to be an assembley of wise men , with the bailife in a place certaine at a time assigned . daies before . wherby iustice may be done in causes heard in the court : of this custome also and those knights of normandie iohannes faber maketh mention , in the rubrique of the title de militari testamento , in institut . this iury , though it appertaine to most courts of the common law , yet is it most notorious in the half yeare courts of the iustices errants , commonlie called the great assises , and in the quarter sessions , and in them it is most ordinarily called a iurie . and that in ciuile causes : wheras in other courts , it is oftener tearmed an enquest , and in the court baron the homage . in the generall assise there are vsually many iuries , bicause there be store of causes both ciuil and criminall commonly to be tried , wherof one is called the grand iury , and the rest petit iuries : whereof it seemeth there should be one for euery hundred , lamb. eirenar . l. . cap. . pa. . the grand iurie consisteth ordinarily of . graue and substantiall gentlemen , or some of them yeomen chosen indifferently out of the whole shyre by the shyreeue , to consider of all bils of inditement preferred to the court : which they doe either approoue , by writing vpon them these words , billa vera : or disallowe , by writing , ignoramus : such as they doe approoue , if they touch life and death , are farder referred to another iury to be considered of , because the case is of such importance : but others of lighter moment , are vpon their allowance , without more worke fined by the bench , except the party travers the inditement , or chalenge it for insufficiencie , or remooue the cause to a higher court by certiorarie , in which . former cases it is referred to another iurie , and in the latter transmitted to the higher . lamb. eire . l. . c. . & presently vpon the allowance of this bill by the grand enquest , a man is said to be indighted . such as they dissalowe , are deliuered to the benche , by whome they are forthwith cancilled or torne . the petit iury consisteth of . . men at the least , & are empanelled , as well vpon criminall as vpon ciuile causes . those that passe vpon offences of life and death , doe bring in their verdict either guiltie or not guiltie , wherevpon the prisoner , if he be found guiltie , is said to be conuicted , and so afterward receaueth his iudgment and condemnation : or otherwise is acquited and sett free : of this reade fortes : cap : . those that passe vpon ciuile causes reail , are all , or so many as can conueniently be had , of the same hundred , where the land or tenement in question doth lie , and . at the least : and they vpon due examination bring in their verdict either for the demaundant , or tenent . of this see fortesc . cap. . . according vnto which , iudgement passeth afterward in the court where the cause first began : and the reason hereof is , because these iustices of assise , are in this case , for the ease of the cuntry , onely to take the verdict of the iurie , by the vertue of the writ called ( nisi prius ) and so returne it to the court where the cause is depending . see ( nisi prius . ) ioyne with this the chapter formerly cited out of the custumary of normandie , and that of king etheldreds lawes mentioned by maister lamberd , verbo centuria . in his explication of saxon words ; and by these two words you shall perceiue , that as well among these normans , as the saxons , the men of this iuty were associats and assistants to the iudges of the court , in a kind of equality ; where as now a daies they attend them in great humility , and are , as it were , at their commaund for the seruice of the court : the words set downe by m. lamberd are these : in singulis centuriis comitia sunto , atque liberae condicionis viri duodeniaetate superiores , vnà cum praeposito sacra tenentes , iuranto , se adeo virum aliquem innocentem haud condemnaturos , sontemve absoluturos : to this ioyne also the . chapter of the saide custumarie . see enquest . see . men . see lamberds eurenarch . lib. . cap. . p. . iuris vtrùm , is a writ , that lyeth for the incumbent , whose predecessour hath alienated his lands or tenements . the diuers vses of which writ , see in fitzh . nat . br . fol. . iurisdiction ( iurisdictio ) is a dignity which a man hath by a power to doe iustice in causes of complaint made before him . and there be two kinds of iurisdictions , the one that a man hath by reason of his fee , and by vertue thereof doth right in all plaints concerning his see : the other is a iurisdiction giuen by the prince to a baylife : this diuision i haue in the custumary of normandy , cap. . which is not vnapt for the practise of our common welth , for by him whom they call a baylife , we may vnderstand all that haue commission from the prince to giue iudgement in any cause : the ciuilians diuide iurisdictionem generally vnderstand in imperium & iurisdictionem : and imperium in merum & mixtum . of which you may reade many especiall tractats writen of them , as a mater of great difficulty and importance . iustes , commeth of the french ( ioustes . i. decursus ) and signifieth with vs , contentions betweene martiall men by speares on horsbacke , anno . h. . cap. . iustice ( iusticiarius ) is a french word , and signifieth him , that is deputed by the king , to do right by way of iudgement . the reason why he is called iustice and not iudex , is because in auncient time the latine word for him was ( iusticia ) and not ( iusticiarius ) as appeareth by glan . lib. . cap. . roger houeden parte poster . suorum annalium , fo . . a. and diuers other places , which appellation we haue from the normans , as appeareth by the grand custumary . cap. . and i doe the rather note it , because men of this function should hereby consider , that they are or ought to be , not ( iusti ) in their iudgements , but in abstract ( ips● iusticia ) how be it i hould it well , if they performe their office in concreto . another reason why they are called iusticiary with vs and not iudices , is , bicause they haue their authority by deputation , as delegates to the king , and not iure magistratus ; and therefore cannot depute others in their steed , the iustice of the forest onely excepted , who hath that liberty , especially giuen him by the statute anno . . h. . cap. . for the chanceller , marshall , admirall , and such like are not called iusticiarii but iudices : of these iustices you haue diuers sorts in england , as you may perceaue heare following . the maner of creating these iustices , with other appertenences reede in fortescu . cap. . iustice of the kings bench ( iusticiarius de banco regis ) is a lord by his office , and the cheife of the rest . wherefore he is also called capitalis iusticiarius angliae , his office especially is to heare and determine all plees of the crowne : that is , such as concerne offences committed against the crowne , dignitie , and peace of the king ; as treasons , felonies , may hems and such like , which you may fee in bracton , lib. . tractat . . per totum ▪ and in stawnf . treatise intituled the plees of the crowne , from the first chapter to the . of the first booke . but either it was from the beginning , or by time it is come to passe , that he with his assistans , heareth all personall actions , and reall also , if they bee incident to any personall action depending before them : see cromptons iuridict . fol. . &c. of this court bracton lib. . cap. . nu . . saith thus : placita verò ciuilia in rem & personam in curia domini regis terminanda , coram diuersis iusticiarus terminantur : habet enim plures curias in quibus diversae actiones terminantur ; & illarum curiarum habet vnam propriam , sicut aulam regiam , & iusticiarios capitales qui proprias causas regis terminant , & aliorum omnium per querelam vel per priuilegium siue libertatam ; vt si sit aliquis qui implacitari non debeat , nisi coram domino rege . this iustice ( as it seemeth ) hath no patent vnder the broad seale . for so crompton saith vbi supra . he is made onely by writ , which is a short one to this effect . regina iohanni popham militi salutē . sciatis quod consistuimus vos iusticiarium nostrum capitalem , ad placita coram nobis terminandum , durante beneplacito nostro , teste , &c. and bracton in the place nowe recited , speaking of the common plees , saith , that sine warranto inrisdictionem non habet , which ( i thinke ) is to be vnderstood of a commission vnder the great seale . this court was first called the kings bench , because the king sate as iudge in it in his proper person , and it was moueable with the court . see anno . h. . cap. . more of the iurisdiction of this court see in crompton vbi supra . see kings bench . the oath of the iustices see in the statute . anno . ed. . stat . . see oathe . iustice of common plees ( iusticiarius communium placitorum ) is also a lord by his office , and is called ( dominus iusticiarius communium placitorum ) and he with his assistants originally did heare and determine all causes at the common lawe , that is , all ciuil causes betweene common persons , as well personall as reall , for which cause it was called the court of common plees , in opposition to the plees of the crowne or the kings plees , which are speciall and appertaining to him onely . of this , and the iuridisdiction hereof , see cromptons iurisdiction . fo . . this court was alwaies setled in a place , as appeareth by the statute anno . h. . cap. . the oath of this iustice and his associats , see anno . ed. . stat . . see oath . iustice of the forest ( iusticiarius forestae ) is also a lord by his office , and hath the hearing and determining of all offences , within the kings forest , committed against venison or vert , of these there bee two , whereof the one hath iurisdiction oueral the forests , on this side trent : the other of all beyond . the cheifest point of their iurisdiction , consisteth vpon the articles of the kings charter , called charta de foresta , made anno . h. . which was by the barons hardly drawne from him , to the mitigation of ouer cruell ordinances made by his predecessors . reade m. camdens britan. pag. . see protoforestarius . the court where this iustice sitteth and determineth , is called the iustice seate of the forest , held euery three yeares once , whereof you may reade your fill in m. manwoodes first part of forest lawes . pag. . & . & pag. . he is sometimes called iustice in eyre of the forest . see the reason in iustice in eyre . this is the only iustice that may appoint a deputy per statutum anno . h. . cap. . iustices of assise ( iusticiarii ad capiendas assisas ) are such as were wont by speciall commission to be sent ( as occasion was offered ) into this or that county to take assises ; the ground of which polity , was the ease of the subiects : for whereas these actions passe alway by iury , so many men might not without great hinderance be brought to london , and therefore iustices for this purpose were by commission particularly authorised , and sent downe to them . and it may seeme that the iustices of the common plees had no power to deale in this kinde of busines , vntill the statute made anno . rich. . cap. . for by that they are enhabled to take assises , and to deliuer gaols . and the iustices of the kings bench haue by that statute such power affirmed vnto them , as they had one hundred yeares before that : time hath taught by experience , that the beter sort of lawyers being fittest both to iudge and plead , may hardly be spared in terme time to ride into the country about such busines : and therefore of later yeares it is come to passe , that these commissions ( ad ●apiedas assisas ) are driuen to these two times in the yeare out of terme , when the iustices and other may beat leasure for these controuersies also : whereupon it is also fallen out , that the maters wont to be heard by more generall commissions of iustices in eyre , are heard all at one time with these assises : which was not so of ould , as appeareth by bracton , lib. . c. . nu . . habet etiam iusticiarios itinerātes de comitatu in comitatum , quandoque ad omnia placita , quandoque ad quaedam specialia , sicut assisas &c. & ad gaolas deliberandas , quandoque ad vnicam vel duas , & non plures . and by this meanes the iustices of both benches , being iustly to be accounted the fittest of all others , and others their assistants , as also the sergeants at law may be imployed in these affaires , who as grauest in yeares , so are they ripest in iudgement , and therefore likest to be voide of prociality , for being called to this dignity , they giue ouer practise anno . r. . cap. . but this alway to be remembred , that neither iustice of either bench , nor any other , may be iustice of assise in his owne country , anno . rich. . cap. . & anno . h. . cap. . lastly , note that in these daies , though the selfe same men dispatch busines of so diuers natures , and all at one time , which were wont to be performed by diuers , and at seuerall times , yet they doe it by seuerall commissions . cromptons iurisdictions . fo . . for those who be in one word called iustices of circuit , and twice euery yeare passe , by two and two , through all englād , haue one cōmission to take assises ; another to deliuer goales , another of oyer and terminer . that iustices of assise , and iustices in eyre did aunciently differ , it appeareth an . . ed. . cap. . and that iustices of assise , & iustices of goale deliuery were diuerse , it is euident by anno . fd. . cap. . the oath taken by iustices of assise , is all one with the oath taken by the iustices of the kings bench . ould abridgement of statutes . titulo sacramentum iusticiariorum . see oath . iustices of oyer and terminer , iusticiarii ad audiendum & terminandum ) were iustices deputed vpon some especiall or extraordinary occasion , to heare and determine some or more causes . fitzherberd in his natura beruium saith , that the commission d' oyer and terminer , is directed to certaine persons vpon any great assembly , insurrection , hainous demeanure , or trespasse committed . and because the occasion of granting this commission should be maturely wayed , it is prouided by the statute anno . ed. . cap. . that no such commission ought to be graunted , but that they shal be dispatcheo before the iustices of the one bench or other , or iustices errāts , except for horrible trespasses , & that by the especial fauour of the king. the forme of this cōmission , see in fitzh . natura breu . fol. . iustices in eyre ( iusticiarii itinerantes ) are so termed of the french ( erre . i. iter ) which is an old word , as ( a grand erre . i. magnis iteneribus ) prouerbially spoken . the vse of these in auncient time , was to send them with commission into divers counties , to heate such causes especially , as were termed the plees of the crowne , and therefore i must imagine they were so sent abroad for the ease of the subiects , who must els haue beene hurried to the kings bench , if the cause were too high for the countie court . they differed from the iustices of oyer and terminer , because they ( as is aboue said ) were sent vpon some one , or fewe speciall cases and to one place : whereas the iustices in eyre , were sent through the prouinces and counties of the land , with more indefinite and generall commission , as appeareth by bracton , lib. . cap. . . . and britton cap. . and againe they seeme to differ in this , because the iustices of oyer and terminer ( as it is before said ) were sent vncertainly , vpon any vproare or other occasion in the country : but these in eyre ( as m. gwin setteth downe in the preface to his reading , were sent but euery seuen yeare once ; with whome horn in his myrrour of iustices , seemeth to agree . lib. . cap. queux poient estre actours , &c. and lib. . c. des peches criminels &c. al suyte de roy , &c. and lib. . c. de iustices in eyre . where he also declareth what belonged to their office . these were instituted by henry the . as m. camden in his britannia witnesseth pag. . and roger hoveden , parte posteri . annalium . fo . . b. hath of them these wordes : iusticiarij itinerantes constituti per henricum secundum . i. qui diuisit regnum suumin sex partes , per quarum singulas tres iusticiarios itinerantes constituit , quorum nomina haec sunt , &c. iustices of gaol deliuery ( iusticiarii ad gaolas deliberandas ) are such as are sent with commission , to heare and determine all causes apperteining to such , as for any offence are cast into the gaol , part of whose authoritie is , to punish such , as let to mainprise those prisoners , that by lawe be not bayleable by the statute de finibus , cap. . fitzh . nat . br . f. . i. these by likelyhoode in auncient time , were sent to countries vpon this seuerall occasion . but afterward iustices of assise were likewise authorised to this , anno . . ed. . cap. . their oath is all one with other of the kings iustices of either bench . ould abridgement of statutes . titulo sacramentum iusticiariorum . see othe . iustices of labourers , were iustices appointed in those times , to redresse the frowardnesse of labouring men , that would either be idle , or haue vnreasonable wages . see anno . eduardi . cap. primo . anno . . eiusd . cap. . & anno . eiusdem cap. . iustices of nisi prius , are all one now a daies with iustices of assises : for it is a common adiournment of a cause , in the common plees to put it off to such a day , nisi prius iusticiarii venerint ad eas partes , ad capiendas assisas : and vpon this clause of adiournment , they are called iustices of nisi prius , as well as iustices of assises ; by reason of the writ or action that they haue to deale in : their commission you may see in cromptons iurisdsctious fol. . yet m. crompton maketh this difference betweene them , because iustices of assise haue power to giue iudgement in a cause , but iustices of nisi prius . only to take the verdict . but in the nature of both there functions this seemeth to be the greatest difference , because iustices of nisi prius haue to deale in causes personall as well as reall , wheras iustices of assise , in strict acception , deale only with the possessory writs called assises . iustices of trial bastō , alias of trayl baston , were a kind of iustices appointed by king edward the first vpon occasion of great disorder growne in the realme , during his absence in the scottishe and french warres , they are called in the ould nat . bre . f. . iustices of triall baston , but by holynshed and stow in edw. pri . of traile baston , of trailing or drawing the staffe as holinshed saith . their office was to make inquisition through the realme by the verdict of substantiall iuries vpon all officers , as mayors shyreeues , bailifes , escheatours & others , touching extortion , briberies and other such greeuances , as intrusions into other mens lands , and barratours that vsed to take mony for beating of men , and also of them whom they did beate ; by meanes of which inquisitions many were punished by death , many by ransome , and so the rest flying the realme , the land was quieted , & the king gained greate riches toward the supporting of his wars . inquire farder of the name . baston is thougt by some to be the beame of a paire of scoales or waights . and this is in this place metaphorically applied to the iuste peising of recompence for offences committed . my poore opiniō is , that the etymology of this title or addition groweth from the french ( treilles ) i. cancelli , barres or letises of what thing soeuer , a grate with crosse bars , or of the singuler ( treille ) i. pargula , an house arbour , a raile or forme , such as vines runne vpon , and ( baston ) a staffe or pole , noting thereby that the iustices emploied in this commission , had authoritie to proceede without any solemne iudgement seate in any place either compassed in with railes , or made booth or tent-wise , set vp with staues or poales without more worke , wheresoeuer they could apprehend the malefactors they sought for . see , lib. assisarum . fol. . . iustices of peace ( iusticiarii ad pacem ) are they that are appointed by the kinges commission , with others , to attend the peace in the county where they dwell : of whom some vpon speciall respect are made of the quorum , because some busines of importance may not be dealt in without the presence or assēt of them , or one of them . of these it is but folly to write more , because they haue so many thinges perteining to their office , as cannot in fewe words be comprehended . and againe iustice fitzherberd some time sithence , as also m. lamberd and m. crompton of late haue written bookes of it to their great commendatiō , and fruitfull benefit of the whole realme . see also sir thomas smith de repub : angl : lib : . cap. . they were called gardians of the peace , vntill the . yeare of king edward the third , cap. . where they be called iustices . lamb. eirenarcha . lib. . cap. pag. . there oathe see also in lambard . lib. i. ca. . iustices of peace , &c. within liberties , iusticiarii ad pacem infra libertates , be such in cities and other corporate townes , as those others be of any countie : and their authoritie or power is all one within their seueral precincts anno . . h. . ca. . iusticies , is a writ directed to the shyreeue , for the dispatch of iustice in some especiall cause , wherewith of his owne authoritie he cannot deale in his countie courte . lib. . cap. . wherevpon the writ de excommunicato deliberando , is called a iusticies in the old nat . bre . fol. . also the writ de homine replegiando . eodem : fol. . thirdly the writ de secunda superoneratione pasturae . eodem : fol. . kitchin fol. . saith , that by this writ called iusticies , the shyreeue may hold plee of a greate summe , whereas of his ordinary authoritie he cannot hold plees but of summes vnder . shillings . crompt on fo . . agreeth with him . it is called a iusticies , because it is a commission to the shyreeue ad iusticiandum aliquem , to ●doe aman right , and requireth noe returne of any certificat of what he hath done . bracton . lib. . tracta . . cap. . nu . . maketh mention of a iusticies to the shyreeue of london , in a case of dower . see the newe booke of entries , iusticies . iustification ( iustificatio ) is an vpholding or shewing a good reason in courte , why he did such a thing as he is called to answere : as to iustifie in a cause of repleuin . broke . titulo repleuin . k e keeper of the great seale ( custos magni sigills ) is a l. by his office and called lord keeper of the great seale of england , &c. & is of the kings priuy councell , vnder whose hands passe al charters , commissions , and graunts of the king strengthened by the great or broad seale . without the which seale , all such instruments , by lawe are of no force . for the king is in interpretation and intendment of law , a corporation , and therefore passeth nothing firmely , but vnder the said seale . this lord keeper by the statute anno . elizabethae cap. . hath the same and the like place , authority , preeminence , iurisdiction , execution of lawes , and all other customes , cōmodities ; and aduantages , as hath the lord chaunceler of england for the time being . keeper of the priuy seale ( custos priuati sigilli ) is a lord by his office , vnder whose hands passe all charters signed by the prince , before they come to the broad or great seale of england . he is also of the kings priuy councell . he seemeth to be called clerke of the priuy seale . anno . r . cap. . but of late daies , i haue knowne none to beare this office , by reason the prince thinketh good , rather to keepe this seale in his owne hands , and by priuate trust to commit it to his principall secretary , or some such one of his councell , as he thinketh fit for that function . keeper of the touch. anno . h. . cap. . seemeth to be that officer in the kings mint , which at this day is termed the master of the assay . see mint . keeper of the forest ( custos forestae ) is also called cheife warden of the forest . manwood part . pri . of his forest lawes , pag. . &c. & hath the principall gouernmēt of all things belonging thereunto : as also the check of all officers belonging to the forest . and the lord cheife iustice in eyre of the forest , when it pleaseth him to keepe his iustice seate , doth . daies before , send out his generall summons to him , for the warning of all vnder-officers , to appeare before him at a day assigned in the summons . this see in manwood vbi supra . king ( rex ) is thought by m. camden in his britan. pag. . to be contracted of the saxon word cyninge , signifing him that hath the highest power & absolute rule ouer our whole land. and thereupon the king is in intendment of lawe cleared of those defects , that common persons be subiect vnto . for he is alwaies supposed to be of full age , though he be in yeares neuer so young . cromptons iurisdictions fol. . kitchin. fol. i. he is taken as not subiect to death , but is a corporation in himselfe that liueth euer . crompton ibidem . thirdly , he is aboue the law by his absolute power . bracton lib. pri cap. . kitchin fol. . and though for the beter and equall course in making lawes he doe admitte the . estates , that is , lords spirituall , lords temporall , and the commons vnto councell : yet this , in diuers learned mens opinions , is not of constreinte , but of his owne benignitie , or by reason of his promise made vpon oath , at the time of his coronation . for otherwise were he a subiect after a sort and subordinate , which may not bee thought without breach of duty and loyaltie . for then must we deny him to be aboue the lawe , and to haue no power of dispensing with any positiue lawe , or of graunting especiall priuiledges and charters vnto any , which is his onely and cleare right , as sir thomas smith well expresseth lib. . cap. . de repub. anglican . and bracton . lib. . cap. . num . . and britton , cap. . for hee pardoneth life and limme to offendours against his crowne and dignitie , except such as he bindeth himself by oath not to forgiue . stawnf . pl. cor . lib. . cap. . and habet omnia iura in manu sua . bracton . lib. . cap. . num . prim . and though at his coronation he take an oath not to alter the lawes of the land : yet this oath notwithstanding , hee may alter or suspend any particular lawe that seemeth hurtfull to the publike estate . blackwood in apologia regum , c. . see oath of the king . thus much in short , because i haue heard some to be of opiniō , that the lawes be aboue the king . but the kings oath of old you may see in bracton , lib. . cap. . nu . . for the which looke in oath of the king. the kings oath in english , you may see in the old abridgement of statutes , titulo , sacram. regis . fourthly , the kings only testimonie of any thing done in his presence , is of as high nature and credit as any record . whence it cōmeth , that in all writs or precepts sent out for the dispatch of iustice , he vseth none other witnesse but himselfe , alwaies vsing these words vnder it , teste me ipso . lastly , he hath in the right of his crowne many prerogatiues aboue any common person , be he neuer so potent or honourable : whereof you may reade your fill in stawnf . tractate vpon the statute thereof made , anno . ed. . though that containe not all by a great number . what the kings power is , reade in bracton . lib. . cap. . nu . prim . & . king of heradls ( rex heraldorū is an officer at armes , that hath the preeminence of this society . see herald . this officer of the romans was called pater patratus . kings bench ( bancus regius ) is the court or iudgment seate where the kinge of england was wont to sitte in his owne person : and therefore was it moueable with the court or kings houshould . and called curia domini regis , or aula regia , as m. gwine reporteth in the preface to his readings ; and that , in that and the exchequer , which were the only courts of the king , vntill henry the thirds daies , were handled all maters of iustice , as well ciuill as criminall . whereas the court of common plees might not be so by the statute : anno . h. . cap. . or rather , by m. gwins opinion , was presently vpon the graunt of the great charter seuerally erected . this court of the kings bench was wont in auncient times to be especially exercised in all criminall maters & plees of the crowne , leauing the handling of priuate contracts to the cownty court . glanuil . lib. . cap. . . . & li. . cap. . smith de repub : anglicana , lib. . cap. . and hath president of it , the lord cheife iustice of england , with three or foure iustices assistaunts , four or fiue as fortescu saith , cap. . and officers thereunto belonging , the clearke of the crowne , a praenatory or protonotari , and other sixe inferior ministers or atturnies . camd : britan : pag. . see latitat : how long this court was moueable , i finde not in any wrighter : but in brittons time , who wrot in k. ed : the . his daies , it appeareth it followed the court , as m. gwin in his said preface wel obseruethout of him . see iustice of the kings bench. kings siluer , is properly that mony , which is due to the king in the court of common plees in respect of a licence there graunted to any man for passing a fine . coke vol. . fo . . a. & . b. kintall of woad , iron &c. is a certaine waight of merchandize to the valew of a hundred , or something vnder or ouer , according to the diuers vses of sundry nations . this word is mentioned by plowden in the case of reniger and fagossa . knaue , is vsed for a man seruant . a. . ed. . stat . . ca. . and by m. verstigans iudgemēt , in his restitutiō of decaied intelligence . ca. . it is borowed of the dutch ( cnapa ) cnaue or knaue , which signifie all one thing : and that is some kinde of officer or seruant : as ( scild-cnapa ) was he , that bore the weapon or shield of his superior , whom the latines call ( armigerum ) and the french men ( escuyer . ) knight ( miles ) is almost one with the saxon ( cnight . i. administer ) and by m. camdens iudgment , pag. . deriued from the same . with vs it signifieth a gentleman , or one that beareth armes , that for his vertue and especially martiall prowes , is by the king , or one hauing the kings authority , singled ( as it were ) from the ordinary sort of gentlemen , and raised to a higher accompt or steppe of dignity . this among all other nations , hath his name from the horse : because they were wont in auncient time , to serue in warrs one horsbacke . the romans called them equites , the italians at these daies terme them cauallieri . the french men cheualliers . the german , reiters . the spaniard caualleros , or varoncs a cauallo . it appeareth by the statute anno . ed. . cap. . that in auncient times , gentlemen hauing a full knights fee , and houlding their land by knights seruice , of the king , or other great person , might be vrged by distresse , to procure himselfe to be made knight , when he came to mans estate for the answerable seruice of his lorde in the kings warres . to which point you may also reade m. camden in his britannia . pag. but these customes be not nowe much vrged : this dignity in these dayes being rather of fauour bestowed by the prince vpon the worthier sort of gentlemen , then vrged by constraint . the maner of making knights ( for the dignitie is not hereditarie ) m. camden in his britan. pag. . shortly expresseth in these words : nostris verò temporibus , qui equestrem dignitatem suscipit , flexis genibus educto gladio leuiter in humero percutitur . princeps his verbis gallicè affatur : sus vel sois cheualier au nom de dieu . id est , surge , aut , sis eques in nomine dei. the solemnitie of making knights among the saxons , m. stow mentioneth in his annals . pag. . see the priuiledges belonging to a knight in fernes glorie of generositie . pag. . of these knights there be two sorts : one spirituall , another temporall . cassanaeus in gloria mundi . parte . considerat . . of both those sorts , and of many subdiuisions , reade him in that whole part . the temporall or second sort of knights m. ferne in his glorie of generositie . pag. . maketh threefold here with vs. knights of the sword , knights of the bath , and knights of the soueraigne order , that is , of the garter : of all which you may reade what he saith . i must remember that mine intent is but to explain the termes especially of our common lawe . wherefore such as i find mentioned in statutes , i will define as i can . m : skene de verb. significat . verbo milites , saith , that in the auncient lawes of scotland , freeholders were called milites . which may seem to haue bene a custome with vs also by diuers places in bracton , who saith , that knights must be in iuries , which turne freeholders doe serue . knights of the garter , ( equites garterii ) are an order of knights , created by edward the third , after he had obtained many notable victories , ( king iohn of frannce , and king iames of scotland being both his prisoners together , and henry of castile the bastard expulsed out of his realme , and don petro being restored vnto it by the prince of wales , and duke of aquitane , called the blacke prince ) who for furnishing of this honorable order , made a choice out of his owne realme , and all christendome , of the best and most excellent renowned knights in vertues and honour , bestowing this dignitie vpon them , and giuing them a blew garter , decked with gold , pearle , and precious stones , and a buckle of gold to weare daily on the left legge onely , a kirtle , gowne , cloake , chaperon , a coller , & other stately and magnificall apparell both of stuffe and fashion , exquisite and heroicall , to weare at high feastes , as to so high and princely an order was meete . of which order , he and his successours , kings of england , were ordained to be the soueraignes , and the rest fellowes and brethren to the number of . smith de republ. angl. libro primo . cap. . i haue seene an auncient monument , whereby i am taught that this honourable companie is a colledge or a corporation , hauing a common seale belonging vnto it , and consisting of a soueraigne gardian which is the king of england , that alwaies gouernes this order by himselfe or his deputie , of . companions called knights of the garter , of . secular chanons that be priests , or must be within one yeare after their admission : . vicars also priests , and . poore knights , that haue no other sustenance or meanes of liuing but the allowance of this house , which is giuen them in respect of their daily praier to the honour of god , and ( according to the course of those times ) of saint george . there be also certaine officers belonging to this order , as namely the prelate of the garter , which office is inherent to the bish : of winchester for the time being , the chaunceler of the garter , the register , who is alwaies deane of windesour . the principall king at armes called garter , whose chiefe function is to manage and marshall their solemnities at their yearely feasts and installations . lastly , the vsher of the garter , which ( as i haue heard ) belongeth to an vsher of the princes chamber , called blacke rod. there are also certaine ordinances or constitutions belonging vnto this society , with certaine forfeitures , and sometime penances for the breakers of them ; which constitutions concerne either the solemnities of making these knights , or their duties after their creation , or the priuiledges belōging to so high an order , but are too large for the nature of this poore vocabularie . the site of this colledge , is the castle of windesoure , with the chapel of saint george , erected by edward the third , and the chapter house in the said castell . howbeit the yearly solemnity or prosession may be , and is , by the soueraignes direction , performed at the court , wheresoeuer it lyeth , vpō saint georges day . m. camden saith , that this order receiued great ornament from edward the see fearns glory of generosity . pag. . see garter . hospinian in his booke de origine & progressu monachatus , maketh mention of this honourable order , terming it by ignorance of our tongue ordinem carteriorum equitum , and charteriorum equitum . which you may reade . cap. . as also bernardus girardus in his historie , libr. . ca. . knights of the bath ( milites balnei , vel de balneo ) are an order of knights made within the lists of the bath , girded with a sword , in the ceremonie of his creation . ferns glorie of generosity . pag. . these are spoken of , anno . . ed. . cap. . but i had an ould monument lent me by a freind , whereby it appeareth , that these knights were soe called of a bath , into the which ( after they had bine shauen and trimmed by a barber ) they entred , and thence , the night before they were knighted , being well bathed , were taken againe by two esquiers commanded to attend them , dried with fine linnen cloathes , and so apparelled and ledde through many solemne ceremonies . viz. confessing their sinnes , watching and praying all night in a church or chappell , with many other , ) to the order of knighthood the next day . so that by the same reason these seemed to be termed knights of the bathe , by which knights made out of the feild in these daies are called knights of the carpet , because in receiuing their order they commonly kneele vpon a carpet . knights of the order of saint iohn of ierusalem ( milites sancti iohannis heirosolumitani ) were otherwise called the knights of the rhodes , being an order of knighthood , that had beginning about the yeare of the lord. . honorius then pope of rome . cassanaeus de gloria mundi , parte . . considerarione . & m. fern. in his glorie of generosity : pag. . they had their primarie foundation and cheife aboad first in hierusalem , and thē in rhodes , wheremany of thē liued vnder their principall called the m. of rhodes . vntill they were expelled thence by the turke , anno . sithence which time their cheife seate is at malta , where they haue done great exploits against the infidels , but especially in the yeare . these , though they had their beginning & especialest abode first at ierusalem and next in rhodes , yet they encreased both in number and reuenues , liuing after the order of friers vnderthe rule of saint augustine , and were dispersed into france , spaine , alvern , campany , englād , and ireland . of these mention is made in the stat : anno . . h. . ca. . & anno . eiusdem , cap. secundo . and it appeareth that they in england had one generall prior , that had the gouernment of the whole order within england & scotland . reg. orig . fol. . b. but toward the ende of henrie the eights daies , they in england and ireland being found ouer much to adhere to the b. of rome against the king , were suppressed , and their lands and goods referred by parlament to the kings disposition . anno . . h. . cap. . the occasion and the propagation of this order more especially described , you may reade in the treatise intituled the booke of honour and armes , lib. . cap. . written by m. rich. ihones . knights of the rhodes , anno . . h. : ca. . see knights of the order of saint iohn . knights of the temple otherwise called templers ) templaplarii was an order of knighthood created by gelasius the pope , about the yeare of our lord. . and so called , because they dwelt in a part of the buildings belonging to the temple . these in the beginning dwelling not far from the sepulchre of the lord entertained cristian straungers and pilgrims charitably , and in their armour ledde them through the holy land , to view such things , as there were to be seene , without feare of infidels adioyning . this order continuing and increasing by the space of . yeares , was farre spred in christendome , and namely here in england . but at the last , the cheife of them at hierusalem , being ( as some men say ) found to fall away to the sazarens from christianity , and to abound in many vices , the whole order was suppressed by clemens quintus , which was about king ed. the . daies , and their substance giuen partly to the knights of the rhodes , and partly to other religious . cassan : de gloria mnndi , parte . consid . . and see anno prim : ed. . cap. . others wright that in truth their destruction grewe from leaning to the emperour against the pope of rome , what soeuer was pretended . ioach. stephanus de iurisdictione . lib. . cap. . nu . . see templers . knights of the shire ( milites comitatus ) otherwise be called knights of the parlament , and be two knights , or other gentlemen of worth , that are chosen in pleno comitatu , by the free holders of euery countie that can dispend . shillings per annum , and be resient in the shire , anno . h , . cap. . & anno . h. . cap. . vpon the kings writ , to be sent to the parlament , and there by their counsell to assist the common proceedings of the whole realme . these when euery man that had a knights fee , were custumarily constreined to be a knight , were of necessity to be milites gladio cincti , for so runneth the tenour of the writ at this day . cromptons iurisdict . fol. pri . but nowe there being but fewe knights in comparison of former times , & many men of great liuing in euery county , custome beareth that esquiers may be chosen to this office . anno . h. . ca. . so that they be resient within the countie , anno h. . cap. . & anno . h. . cap. prim . for the obseruations in choice of these knights , see the statutes anno . h. . cap. . & anno . eiusdem , cap. . & anno . h. . cap. . & anno . h. . cap. . and the new booke of entries . verbo parlament . nu . . their expences during the parlament are borne by the county , anno . h. . cap. . knight marshiall ( marescallus hospitii regii ) is an officer in the kings house , hauing iurisdiction , and cognisance of any transgression within the kings house and verge , as also of contracts made within the same house , whereunto one of the house is a partie . register orig . fo . . a. b. & fo . . b. whereof you may there reade more at large . knights fee , ( feudum militare ) is so much inheritaunce , as is sufficient yearely to maintaine a knight with conuenient reuenew which in henry the. . daies was fifteene pounds . camdeni britan. pag. ● . or . acres of land , or . acres . eodem : but s. thomas smith in his repub. angl. lib. pri . cap. . rateth it at fourtie pound . and i finde in the statute for knights anno pri . ed. . cap pri . that such as had . pound in fee or for terme of life per annum , might be compelled to be knights . m. stowe in his annals , pag. . saith , that there were found in england at the time of the conqueror . knights fees : others say . whereof the religious houses before their suppression were possessed of . knights fee , is sometime vsed for the rent , that a knight payeth for his fee to his lord , of whom he houldeth . and this is an vncertaine summe , some houlding by fortie shillings the sheild , some by twenty shillings as appeareth by bracton . lib. . tract : pri . cap. . knighten gylde , was a gylde in london consisting of . knights , which king edgar founded , giuing vnto them a portion of void ground lying without the walls of the city , now called portesoken ward . stow. in his annals , pag. . l laborariis , is a writ that lieth against such , as hauing not whereof to liue , doe refuse to serue , or for him that refuseth to serue in summer , where he serued in winter : orig . register , fol. . b. laches , commeth of the french ( lascher . i. laxare , or lusche . i. frigidus , ignavus , flaccidus ) it signifieth in our common law , negligence : as no laches shal be adiudged in the heire within age , litleton fol. . and old nat . br . fol. . where a man ought to make a thing , and makes it not , i of his laches cannot haue an assise , but i must take mine action vpon the case . lagon , see flotzon . laised listes , anno i. r. . cap. . land tenent , anno . ed. 〈◊〉 . stat . . cap. . & anno . eiusdem . cap. . & . . eiusdem , stat . . cap. . see terre-tenent , & anno . r. . cap. . & anno . h. . cap. . it is ioyned with this word ( possessor ) as synonymon . v. anno . h. . cap. . see terretenent . lanis de crescentia walliae traducendis abque custuma , &c. is a writ that lyeth to the customer of a porte , for the permitting one to passe ouer wolles without custome , because he hath paid custome in wales before , register , fol. . lapse ( lapsus ) is a slippe or departure of a right of presēting to avoide benefice , from the originall patron neglecting to present within six monethes , vnto the ordinary . for we say that benefice is in lapse or lapsed , wherevnto he that ought to present , hath omitted or slipped his oportunitie , anno . eliz. cap. . this lapse groweth as well the patron being ignorant of the auoydance , as priuie , except onely vpon the resignation of the former incumbent , or the depriuation vpon any cause comprehended in the statute , anno . eliz. cap. . panor : in cap. quia diuersitatem . nu . . de concess : praebend . rebuffus de devolut : in praxi beneficiorum : lancelotus de collation : lib. . institut . canon : § . tempus autem . in which cases the bishop ought to giue notice to the patron . larceny ( laricinium ) commeth of the french ( larcen . i. furtum , detractio alicui ) it is defined by west . parte . . symbol titulo inditements , to be theft of personall goods or chatels , in the owners absence : and in respect of the things stollen , it is either great or small . great larceny is , wherin the things stolne , though seuerally , exceede the value of . pence , and petit larceny is when the goods stolne exceede not the value of . pence , hitherto m. west . but he differeth from bracton . lib. . tract . . c. . n. . of this see more in stawnf . pl. cor . l. . cap. . . . . . laghslite , is compounded of ( lah. i. lex ) and ( slite . i. ruptum ) and signifieth mulctam ruptae vel violatae legis . lamb : explicat . of saxon words , verbo mulcta . last , is a saxon word , signifiing a burden in generall , as also particularly a certaine weight : for as we say a last of hering , so they say ein last corns , last wines , &c. thence commeth lastage , which see in lestage . a last of hering conteineth . thousand , an . . ed. . stat . . cap. . a last of pitch and tarre , or of ashes , conteineth . barrels . anno . . h. . cap. . a last of hides , anno . iac. cap. . conteineth . dozen of hides or skins . latitat , is the name of a writ whereby all men in personall actions are called originally to the kings bench . fitz. nat . br . fo . . m. and it hath the name from this , because in respect of their beter expedition , a man is supposed to lurke , and therefore being serued with this writ , he must put in securitie for his appearance at the day , for latitare , est se malitiosè occultare animo fraudandi creditores suos agere volentes . l. fulcinius § . quid sit latitare . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . quibus ex causis in possessionem eatur : but to vnderstand the true original of this writ , it is to be knowne , that in auncient time , whilest the kings bench was moueable , and followed the court of the king , the custome was , when any man was to be siewed , to send forth a writ to the shyreeue of the county where the court lay , for the calling him in : and if the shyreeue returned , non est inventus in baliva nostra , &c. then was there a second writ procured foorth , that had these words , ( testatum est eum latitare , &c. ) and thereby the shyreeue willed to attach him in any other place where he might be found . now when the tribunall of the kings bench came to be setled at westminster , the former course of writ was kept for a long time , first sending to the shyreeue of midlesex to summon the party , and if he could not be found there , then next to apprehend him wheresoeuer . but this seeming too troublesome for the subiect , it was at last deuised , to put both these writs into one , and so originally to attache the party complained of vpon a supposall or fiction , that he was not within the county of middlesex , but lurking else where , and that therefore he was to be apprehended in any place else , where he was presumed to lye hidden , by a writ directed to the shyreeue of the county where he is suspected to be : and by this writ a man being brought in , is committed to the marshall of that court , in whose custodie when he is , then by reason he is in the same countie where the kings bench is , he may be siewed vpon an action in that court , whereas the original cause of apprehending him must be a pretence of some deceit or contempt committed , which most properly of old belonged to the cognizance of that court . i haue bene enformed , that the bringing of these actions of trespas so ordinarily to the kings bench , was an inuention of councelers , that because onely sergeants may come to the common plees barre , found a meanes to set themselues on worke in that court . the forme of this writ is such : iacobus dei gratia angliae , francis , scotiae , & hiberniae rex , fidei defensor , &c. vicecomiti cantabrigiae salutem . cum vicecomitinostro midlesexiae nuper praeceperimus , quod caperet thomam t. & wilielmum w. si inuenti fuissent in balliua sua , & eos saluo custodiret , ita quòd haberet corpora eorum coram nobis apud westminster die veneris proximo post octavas sanctae trinitatis , ad respondendum roberto r. de placito trangressionis ; cumque vicecomes noster midlesexiae , ad diem illum nobis returnauerit , quod praedicti thomas t. & wilielmus w. non sunt inuenti in balliua sua , super quo ex part : praedicti roberti in curia nostra coram nobis sufficienter testatum est , quòd praedicti thomas & wilielmus latitant & discurrunt in comitatu tuo . idcirco tibipraecipimus quòd capias eos , si invētifuerint in balliua tua , & eos salvo custodias , it a quod habeas corpora eorum coram nobis apud westminster , die . martis proximo post tres septimanas , eodem trinitatis , ad respondendum praefato roberto deplacito praedicto , & habeas ibi tunc hoc breve . teste iohanne p●pham apud westminster . roper . launcegay , anno . . rich. secundi : cap. . law ( lex ) cometh of the saxon ( lah ) the generall significatiō is plaine , only this i thought to note , that the law of this land hath beene variable . for first dunwallo mulmutius otherwise molincius a brittaine , that being duke of cornwall reduced the whole land formerly seuered by ciuile wars , into the state of a monarchy , made certaine wholsome lawes , which long after were called mulmutius lawes , and by gyldas translated out of the bryttish tongue into latine . stow in his annals , pag. . of these there remaine yet certaine heads , recorded by our historiographers , as followeth . . vt deorum templa , & ciuitates hominum consequantur tantam dignitatem , ne quis illò confugiens extrahipossit , antequàm ab eo quem laeserat , veniam impetraverit . . vt huiusmods privilegium immunitatis habeant etiam ipsae viae , quae ducunt ad templa & ad vrbes . . imo & iumenta quoque illa , quae res rusticae subueniunt . . denique colonorum aratra ipsa tali praerogativa libertatis perfruantur . . hoc amplius , vt ne quaterra vacaret culturâ , neve populus inopia reifrumentariae premeretur , aut ea minueretur , si pecora sola occuparent agros qui ab hominibus coli dobent . . constituit quot aratra quaelibet dioece sis haberet ac poenam statuit iis , per quos ille numerus aratrorum foret diminutus : . item vetuit , bovem arator●m pro debito pecuniae , assignari debitoribus , si alia bonae debitoris essent . ita fore , ne compendii causa homines pecuarii agros incultos redderent : sic etiam fore , ne quid carum rerum , quas natura praebet , hominibus vsquam deesse posset . rich. vitus historiarum britanniae . li. . nu . . and of these lawes we finde no obscure remanets in our lawes now in vse : see magna charta . ca. : & c● . . see sanctuary . see peace . then was there a lawe called merchenlage , whereby the mercians were gouerned , being a kingdome in the heart of the land , conteining those countries , that be nowe called northampton shire , leycester shire , rutland shire , lincolne shire , nottingham shire , and derby shire . camd. britan. pag. . whose power was great in the heptarchy of the saxons , vntill at the last they were conquered by the west saxons , and made subiect to them . polydor. in angl. hist . lib. . but whereas the name of these lawes sauoureth of the saxons time , it is reported by others that martia a very learned queene and wife to quintelinus a britton king , was the author of them , long before the saxons set foote in england . rich. vitus . histo . britan. li. . nu . . who also saith that alphred the saxon king translated both these , and also those of mulmutius into the english or saxon tongue . thirdly , there was the lawe of the west saxons , called west saxenlage , and the lawe of the danes when they set foote into the realme ▪ called denelage . and of these lawes , edward made one lawe , as some write , whereby he ruled his kingdome . but m. camd. vbi supra , speaking nothing of mulmutius lawes , saith out of geruasius tilburiensis , that of the other three william the conquerour chose the best , and to them adding of the norman lawes , such as he thought good , he ordeined lawes for our kingdome , which we haue at this present , or the most of them . lawe hath an especiall signification also , wherein it is taken for that which is lawfull with vs , and not els where . as tenent by the courtesie of england . anno . ed. . cap. . and againe , to wage lawe , vadiare legem , and to make lawe , facere legem . bracton lib. . tract . . cap. . is to chalenge a speciall benefite , that the lawe of this realme affordeth in certaine cases : whereof the first , sc . vadiar● legem , is to put in securitie , that he will make lawe at a day assigned , glanuile lib. . cap. . and to make law is to take an oath , that he oweth not the debt chalenged at his hand , and also to bring with him so many men as the court shall assigne , to avowe vpon their oath , that in there consciēces he hath sworne truly . and this lawe is vsed in actions of debt , without specialty , as also where a man comming to the court , after such time , as his tenements for default be seised into the kings hands , will denie himselfe to haue beene summoned , glanuile lib. . cap. . & . and see bracton vbi supra . nu . . v. kitchin. fol. . see the newe exposition of lawe termes verbo ( ley ) this is borrowed from normandie , as appeareth by the grand custumarie , cap. y . but sir edward cooke saith , it springeth originally from the iudiciall lawe of god , li. . of his reports , slades case , fol. . b. alleaging the . cap. of exodus , versu . . whether so or not , the like custome is among the feudists : by whome they that come to purge the defendant , are called ( sacramentales . ) libro feud . . tit . . § . . & titulo . & titulo . . lawe of armes ( ius militare ) is a law that giueth precepts & rules how rightly to proclaime warre , to make and obserue leagues & truce , to set vpon the enemie , to retire , to punish offendours in the campe , to appoint souldiers their pay , to giue euery one dignitie to his desert , to diuide spoiles in proportion , and such like , for farder knowledge wherof , reade those that write de iure bells . lawe day , signifieth a leete cromptons iurisdict . fol. . and the county court , anno . ed. . cap. . lawles man , is he qui est extra legem , bracton lib. . tract . . cap. . nu . . see outlawe . lawe of marque , see retrisalles . this word is vsed anno . ed. . stat . . ca. . and groweth from the german word march. i. limes , a bound or limite . and the reason of this appellation is , because they that are driuen to this lawe of reprisall , do take the goods of that people of whome they haue receiued wrong , and cannot get ordinary iustice , when they can catch them within their owne territories or precincts . lawe merchant , is a priuiledge or speciall lawe differing from the common lawe of england , and proper to merchants and summary in proceeding , anno . ed. . stat . . . . & . anno . ed. . stat . tertio . lawing of dogs ( expeditatio canum ) see expeditate . mastifs must be lawed euery three yeare . cromptons iurisd . fol. . lease ( lessa ) commeth of the french ( laysser . i linquere , relinquere , omittere , permittere : ) it signifieth in our common lawe , a dimise or letting of lands or tenements or right of common , or of a rent or any hereditament vnto another , for terme of yeares or of life , for a rent reserued . and a lease is either written , called a lease by indenture , or made by word of mouth , called a lease paroll . see the newe termes of the lawe . the party that letteth this lease , is called the leassour , and the partie to whom it is let , the leassee . and a lease hath in it sixe points : viz. words importing a dimise , a leassee named , a commencement from a day certaine , a term of yeares , a determination , a reseruation of a rent . coke vol. . knights case . fol. . a. leete ( leta ) is otherwise called a lawe day , smith de republ. anglor . lib. . cap. . the word seemeth to haue growne from the saxon ( lethe ) which as appeateth by the lawes of king edward set out by m. lamberd . num . . was a court or iurisdiction aboue the wapentake or hundred , comprehending three or foure of them , otherwise called thryhing , and contained the third patt of a prouince or shire . these iurisdictions one and other be now abolished , and swallowed vp in the countie court , except they be held by prescription . kitchin. fol. . or charter in the nature of a franchise , as i haue said in ( hundred . ) the libertie of hundreds is rare , but many lordes , together with their courts baron , haue likewise leetes adioyned , and thereby do enquire of such transgressions , as are subiect to the enquirie and correction of this court : whereof you may read your fill in kitchin , from the beginning of his booke to the fifth chapter , and briton . cap. . but this court , in whose maner soeuer it be kept , is accompted the kings court , because the authoritie thereof is originally belonging to the crowne , and thence deriued to inferiour persons , kitchin fol. . iustice dyer saith , that this leete was first deriued from the shyreeues turn . fol. . and it enquireth of all offences vnder high treason , committed against the crowne and dignitie of the king ; though it cannot punish many , but must certifie them to the iustices or assise , per statut. anno . ed. . cap. vlt. kitchin fol. . but what things bee onely inquirable , and what punishable , see kitchu in the charge of a court leet ▪ fol. . . . . . . . . . . . . . see also the statute anno . ed. . the iurisdiction of bayliffes in the dutchy of normandie , within the compasse of their prouinces , seemeth to be the same , or very neare the ●ame , with the power of our leete . cap. . of the grand custumarie . legacie ( legatum ) is a particular thing giuen by last will and testament . for if a man dispose or transferre his whole right or estate vpon another , that is called haereditas by the ciuilians , and he to whome it is so transferred , is tearmed haeres . howbeit our common lawyers call him heire , to whom all a mans lands and hereditaments doe descend by right of bloud . see heire . see hereditaments . leproso amouendo , is a writ that lyeth for a parish , to remoue a leper or lazar , that thrusteth himselfe into the company of his neighbours , either in church or other publike meeting , and communeth with them to their annoyance or disturbance . regi . orig . fol. . fitz. nat . br . fol. . lestage , aliâs lastage , ( lastagium ) proceedeth from the saxon word ( last . i. onus ) and is a custome chalenged in faires & markets for carying of things . rastals exposition of words : or a custome chalenged in cheapings or faires . saxon in the description of england , cap. . lastage . anno . r. . cap. . seemeth to be the ballance of a shippe . fleta tearmeth it lesting , saying , quòd significat acquietantiā lestagii . lib. . cap. . § . lesting . leters of exchaunge , ( literae cambitoriae , vel litera cambii ) regist . orig . fol. . a. leters patents ( literae patentes ) be writings sealed with the broad seale of england , whereby a man is authorized to do or enioy any thing that otherwise of himselfe he could not . anno . h. . cap. . and they be so tearmed of their forme , because they be open with the seale hanging , readie to be shewed for the confirmation of the authoritie giuen by them . if any will say , that leters patents may bee graunted by common persons , i will not greatly contend . for i find that to be true in fitzh . nat . br . fol. . e. howbeit they bee called rather patents in our cōmon speech , then leters patents . leters patents to make denizens . anno . h. . cap. . yet for difference sake , the kings leters patents be called leters patents royall . anno . h. . cap. . there is likewise a writ patent . fitzh . nat . br . fol. . & seqq . leuari facias , is a writ directed to the shyreeue , for the leuying of a summe of money vpon lands and tenements , of him that hath forfeited a recognizance , &c. regist . origin . fol. . b. & . b. leuari facias damna de disseisitoribus , is a writ directed to the shyreeue , for the leauying of dammages , wherein the disseisour hath formerly beene condemned to the disseisee . regist . fol. . b. leuari facias residuum debiti , is a writ directed to the shyreeue , for the leuying of a remanent of a debt vpon lands and tenements , or chatels of the debtor , that hath in part satisfied before , regist . orig . fol. . leuari facias quando vicecomes returnavit quòd non habuit emptores , is a writ commaunding the shyreeue to sell the goods of the debtor , which he hath alreadie taken , & returned that he could not sell them , and as much more of the debtours goods , as will satisfie the whole debt . regist . orig . fol. . a. leter of atturney , ( litera atturnatus ) is a writing , authorizing an atturney , that is , a man appointed to do a lawfull act in our steedes , west parte prim . symbol . lib. . sect . . it is called in the ciuile lawe ( mandatum , or procuratorium ) there seemeth to be some difference betweene a leter of atturney , and a warrant of atturney . for whereas a leter of atturney is sufficient , if it be sealed and deliuered before sufficient witnesse : a warrant of atturney must be acknowledged and certified before such persons , as fines bee acknowledged in the country , or at the least before some iustice or sergeant , west . parte . symbol . titulo recoveries . sect . . f. see the statute , anno . r. . cap. . leters of marque . see marque and lawe of marque . see reprisals . see a. . hen. . cap. . leters patents of summons for debt : anno . h. . cap. . leuy ( leuare ) commeth of the french ( leuer . i. alleuare , attoller● ) it is vsed in our common law , for to set vp any thing , as to leuy a mill . kitchin , fol. . or to cast vp , as to leuy a ditch . old. nat . br . fol. . or to gather and exact , as to leuy mony . see leu●ri facias . libell ( libellus ) literally signifieth a litle booke , but by vse it is the originall declaration of any action in the ciuill lawe , anno . h. . cap. . & anno . ed. . cap. . it signifieth also a criminous report of any man cast abroad , or otherwise vnlawfully published in writing , but then for difference sake it is called an in famous libel , famosus libellus . libello habendo . see copia libelli de liberanda . libera chasea habenda , is a writ iudiciall , graunted to a man for a free chace belonging to his maner , after he hath by a iury prooued it to belong vnto him . register iudiciall , fol. . & . liberate , is a warrant issuing out of the chaūcery to the treasurer , chamberlaines , and barons of the exchequer , or clerk of the hamper , &c. for the payments of any annuall pension or other summes graunted vnder the broad seale . v. brooke . titulo taile d'exchequer . nu . . orig . reg. fol. . a. b. or sometime to the shyreeue . &c. n. br . f. . for the deliuery of any lands or goods taken vpon forfeits of a recognisaunce . fitzh . nat . br . fol. . & . v. coke . li. . fulwods case , so . . . & . it is also to a gaoler from the iustices for the deliuery of a prisoner , that hath put in baile for his appearaunce . lamb. eirenarch . lib. . cap. . libertate probanda , is a writ that lyeth for such , as be chalendged for slaues , and offer to proue themselues free , to the shyreeue , that he take security of them for the prouing of their freedome before the iustices of assise , and prouide , that in the meane time they be quiet from their vexations , that chalenge them for slaues . fitz. nat . br . fol. . see natiuo habendo . libertatibus allocandis , is a writ that lyeth for a citizen or burges of any citie , that contrarily to the liberties of the city or towne whereof he is , is impleaded before the kings iustices , or iustices errants , or iustice of the forest , &c. that refuseth or deferreth to allow his priuiledge orig. regist . fol. . fitz. nat . br . fol. . libertatibus exigendis in itinere , is a writ , whereby the king willeth the iustices in eyre , to admit of an atturney for the defence of another mans libertie , &c. before them . regist . origin . fol. . b. libertas ( libertas ) is a priuiledge held by graunt or prescription , whereby men enioy some benefite or fauour beyond the ordinarie subiect . liberties royal what they be , see in bracton . lib. . cap. . broke hoc titulo . see franchise . librata terrae , containeth foure oxegangs , and euery oxegange . acres . skene de verb. signif . verbo bovata terrae . see farding deale of land . licence to go to election , ( licentia eligendi , regist . fol. . ) see conge d'eslire . licence to arise , ( licentia surgendi ) is a libertie giuen by the court to a tenent , that is essoyned de malo lecti in a reall action . for the lawe is , that in this case he may not arise out of his bed , or at least goe out of his chamber , vntill he haue bene viewed by knights thereunto appointed , and so vpon view of his sicknesse , haue a day assigned him to appeare , or else lye , vntill he be licenced by the court to arise . and the reason of this is , as i take it , because it may appeare , whether he caused himselfe to be essoyned deceitfully yea or not : and therefore if the demaundant can prooue , that he be seene out of his chamber , walking vp and downe his grounds , or els going abroad vnto any other place , before he be viewed or haue licence of the court , he shal be adiudged to be deceitfully essoyned , and to haue made default . of this see bracton , lib. . tract . . cap. . . & . and fleta , li. . cap. . horne in his second booke of his mirrour , ca. des essoines , saith that the aduerse party may graunt licentiam surgendi to his aduersary thus essoyned : and if he will not , the king vpon iust cause , may . licentia surgendi , is the writ whereby the tenent essoyned de malo lecti , obteineth liberty to rise . see licence to arise . see the register , fol. . licentia transfretandi , is a writ or warrant directed to the keepers of the port at douer , &c. willing them to let some passe quietly ouer sea , that hath formerly obteined the kings licence thereunto , reg. orig. fol. . b. lieftenent ( locum tenens ) is a french word , signifiing as much as ( legatus ) it is compounded of ( lieu. i. locus ) and ( tenir . i. tenere ) it signifieth with vs him , that occupieth the kings place , or representeth his person , as the liefetenent of the kings of ireland . anno . h. . cap. . so is it vsed anno . & . ed. . cap. . whence that officer seemeth to take his beginning . but i read also in m. manwoods first part of forest lawes . pag. . that the lord cheife iustice in eyre of the forest : and the cheife warden also , haue their liefetenents in the forest . so that though a leiftenent be most ordinary and most properly vsed for the depute of the king : yet is it sometime extēded to ther deputes that be but liefetenents to the king. liefetenent of the ordinance , anno . el. ca. . liege , ( ligius ) is a word borowed from the feudists , and hath two seuerall significations in our common lawe : sometime being vsed for liege lord. anno . & . h. . cap. . & anno . eiusdem , cap. . and somtimes for liege man. anno . r. . cap. vnico . & anno . eiusdem . cap. prim . liege lord is he , that acknowledgeth no superiour . duarenus in comment . de consuetud . feudorum , cap. . num . . liege man is he , that oweth legeancie to his liege lord. m. skene de verb. sign . verbo ligeantia , saith , that it is deriued from the italian word , ( liga ) i. a band , league , or obligation , in whom read more of this mater . ligeancie , is such a duty or fealtie , as no man may owe or beare to more then one lord. idem , eodem . num . . i find also this definition of ligeancie in the grand custumarie of normandy , cap. . ligeantia est , ex qua domino tenentur vasalli sui contra omnes homines qui mori possunt & viuere , proprii corporis praebere consilii & auxilii iuvamentum , & ei se in omnibus innocuos exhibere , nec ei adversantium partem in aliquo confouere . dominus etiam eosdem tenetur regere , protegere & defensare : eosque secundum iura & consuetudines , & leges patriae pertractare : this is otherwise called l●gietas , cassan : de consuetud : burgund : pag. . & . this word is vsed in the statutes of our realm : as the kings liege people . anno . h. . c. . of the oath of leageancy , iacobutius de franchis in praeludio feudorum , cap. . nu . . hath these words : praestatur hoc ligeum homagium in manibus regis vel imperatoris , genibus flexis , positis manibus iunctis in manibus domini , dicendo : ego iuro homagiū tibi dom. vt a modo sim homo ligeus vester , contra omnem hominem , qui potest viuere : verba sunt pulchra andr. de isern : in cap. . in verbo omnem . colum : prima . de noua forma fidelita : & hoc ligeum homagium videmus praestari domino regi tantum : quia cum per id efficiatur homo solius illius , cui iuratur , vt dixit hostiensis in cap. ex diligenti . de symon : alii non potest praestari . i. quia illius solius esse similiter non potest : non 〈…〉 . esse potest duorum in solidum . l. si vt certo . § . si duobus vehiculum . 〈◊〉 : commodati . secundùm and : in dicto cap : . § . omnem . & bald : hic in . diuis & aluar. in . diuisione . ) non ligeum verò dicitur , quando quis ●●rat fidelitatem domino , excepta aliqua persona , viz. domino superiori , vel antiquiore : hactenus iacobutius . where you may reade more touching this point : as also in hotomans disputations de feudis , pag. . fol. . &c. ligeance ( ligeantia ) see liege it sometime signifieth the dominions or territoritie of the liege lord : as anno . ed. . stat . . children borne out of the ligeance of the king. lierwit est mulcta adulteriorum . fleta li. . ca. . it is vsed for a libertie whereby a lord chalengeth the penalty of one that lyeth vnlawfully with his bond woman . see lotherwit . limitation of assise ( limitatio assisae ) is a certaine time set downe by statute , within the which a man must alledge himselfe or his auncester to haue bin seised of lands , siewed for by a writ of assise . see the statute of merton , cap. . anno . h. . and west . . cap. . and an . . h. . c. . & an . . m. . p. c. . see also theloals digest of writs lib. . cap. . so it is vsed in the old . nat . br . fol. . in these words : the writ de consuetudinibus & seruitiis lyeth , where i or mine auncesters after the limitation of assise , were not seised of the customes , &c. but before the limitation of assise wee were seised , &c. lindwood , was a doctor of both ciuill and canon lawes , and deane of the arches , he was embassadour for henry the fiueth into portingall , anno . as appeareth by the preface to his commentarie vpon the provincialls . litleton , was a lawyer of great accompt , liuing in the daies of edward the fourth , as appeareth by stawnf . praerogat : cap. . fol. . he wrot a booke of great accompt , called litletons tenoures , which hotoman in his commentary de verbis feudalibus . verb. foedum , thus commendeth . stephanus pasquerius excellenti vir ingenio , & inter parisienses causidicos dicendi facultate praestans , libellum mihi anglicanum litletonum dedit , quo feudorum anglicorum lura exponuntur , ità inconditè , absurde , & inconcinnè scriptum , vt facilè appareat verum esse , quod polidorus virgilius in anglica historia scribit , stultitiam in eo libro cum malitia & calumniandi studio certare . literae ad faciendum attornatum pro secta facienda : see in the regist : originall , fol. . literae de annua pensione , eodem , . & . litera patens ad faciendum generalē atturnatum quia infirmus , eodem , fol. . litera per quam dominus remittit curiam suam regi , eodem . fol. . literae de requestu , eodem , fol. . literae canonici ad exercendam iurisdictionem loco suo , fo . . literae patentes ad conferendum beneficta , domino in remotis agente . fol. . literae ad innote scēdum recuperationem regis de ecclesia omnibus quorum interest , fol. . literae patentes regis quod abbas ad totam vitam suam possit facere atturnatos generales , f. . literae procuratoriae ; fol. . . literae regia deprecatoriae pro annua pensione , fol. . all these you may see in their places , & vnderstand the meaning of them , as occasion shall require . liverie ( liberatura ) is drawne from the french ( ●●vree i. insigne , gestamen , centuriale discrimen , nota centurialis , turmalis ) or els from ( livrer . i. tradere ) and accordingly hath . significations . in one it is vsed for a suite of cloth or other stuffe , that a gentleman giueth in coates , cloakes , hats or gownes , with cognisaunce or without , to his seruants or followers , anno . rich. . cap. . & anno . eiusdem , cap. . & 〈◊〉 . & anno . h. . ca. . & anno . ed. . ca. . & anno . eiusdem , ca. . & anno . eiusdem , ca. . & a. . h. . ca. . & anno . ed. . ca. . & anno . h. . ca. . & . & anno . eiusdem , ca. . & anno . eiusdem , cap. . in the other signification , it betokeneth a deliuery of possession vnto those tenents , which hould of the king in capite , or in knights seruice : for the king by his prerogatiue hath primier seysini ( or the first possession ) of all lands and tenements so houlden of him . anno . h. . cap. . & an . . ed. . cap. . that is , when any such tenent dyeth , the king foorthwith entreth , and holdeth it vntill the heire do his homage , and so pray his land to be deliuered vnto him . which act in the king is called liuerie : and liuerie in this signification is either generall or speciall . stawn . praerog . fol. . & cap. . liuerie generall seemeth to be that , which is made in general words , and therefore may easily be missued . liuerie speciall is that , which containeth in it a pardon of ouersights committed by the tenent in siewing out his liuerie , by which pardon the missuing is dispensed with . stawnf . pag. cap. trauers . . see the institutes and grounds of the common lawe . cap. . of generall and speciall liueries . liuerie in the third signification is the writte which lyeth for the heire to obtaine the possession or seisin of his lands at the kings handes : which see in fitz. nat . br . fol. . liuerie of seisin ( deliberatio seisinae ) is a deliuerie of possession of land or tenement , or other things corporeall , ( for of things incorporeall no liuerie of seisin may be ) vnto one that hath right or a probabilitie of right vnto them . for as bracton saith : traditio debet esse vestita & non nuda , sc . quòd traditione praecedat vera causa vel putatiua , qua transeat dominicum . lib. . cap. . num . . west parte prim . symbol . li. . sect . . calleth this a ceremonie in the common lawe , vsed in the conueyance of lands or tenements , &c. where you may see the vsuall forme hereof particularly set downe , whereunto ioyne the new exposition of law tearmes . lieutenent . see lieftenent . lieutenent of the tower , seemeth to haue bene an officer vnder the constable . anno henr. . cap. . locus partitus , signifieth a diuision made betweene . townes or counties , to make triall in whether the land or place in question lieth . fleta lib. . cap. . num . . locall ( localis ) signifieth in our common lawe , as much as tyed or annexed to a place certaine : example : the thing is locall and annexed to the free-hold . kitchin fol. . and againe in the same place : an action of trespasse for battery , &c. is transitorie and not locall : that is , not needfull that the place of the batterie should bee set downe as materiall in the declaration : or if it be set downe , that the defendant should trauerse the place set downe , by saying , he did not commit the batterie in the place mentioned in the declaration , and so auoide the action . and againe , fol. . the place is not locall : that is , not materiall to be set down in certaintie . and the gard of the person and of the landes differeth in this , because the person being transitorie , the lord may haue his rauishment de garde , before he be seised of him , but not of the land , because it is locall . perkins graunts . lobbe , is a great kinde of north sea fish . anno . ed. . stat . . cap. . lodemanage , is the hire of a pilot for conducting of a ship from one place to another . loichfish , as lob. ling. cod. anno . ed. . stat . . cap. . lode works , is one of the works belonging to the stannaries in cornwall : for the which reade m. camdens britan : in his title of cornwal . pa. . see streme work . lollards ( lollards ) were in accompt and reputation of those times , heretiks that abounded heere in england , in the daies of edward the third , and henry the fifth . anno . h. . cap. . whereof weekleife was the cheife , as stowe saith in his annalls : pag. . who by his report , went barefooted and baslely clothed , to wit in base russet garments downe to the heeles : they preached , and especially against monks and other religious men . of these reade more in him and others that writ of those times . the name lindwood deriueth a lolio : quia sicut lolium inficit segetes : sic lollardi multociens inficiunt fideles simplices inter quos conuersantur . in ca. finali : de haereticis verbo lollardiae : but tritemius in his chronicle , deduceth the name from one gualter lolhard a german as the first author of that sect , liuing about the yeare of our redemption . . lord ( dominus ) by m. camdens opinion , is a contract ( of lafford ) which is the danish word for dominus . it is a word of honour with vs , and is vsed diuersly . sometime being attributed to a man , that is noble by birth or creation , which sort are otherwise called lords of the parlament . sometime to those that be so called by the courtesie of england , as all the sonnes , of a duke , or the eldest sonne of an earle . sometime to men honorable by office , as lord chiefe iustice , &c. and sometime to a meane man that hath fee , and so consequently the homage of tenents within his maner . for by his tenents he is called lord , and by none other , and in some places , for distinction sake , he is called landlord . it is vsed neuerthelesse by the writers of the common lawe , most vsually in this signification . and so is it diuided into lord aboue , and lord mesn : lord mesn , is he that is owner of a maner , and by vertue thereof hath tenents holding of him in fee , and by copy of court rolle , and yet holdeth himselfe ouer of a superiour lord : who is called lord aboue , or lord paramount , old nat . br . fol. . although i thinke none simply to be accounted lord paramount , but the prince : because all hold either mediately or immediatly of him , and he of none . in this signification i likewise reade very lord , and very tenent . eod . fol. . & broke titulo heriot . num . . where ( i thinke ) very lord , is he which is immediate lord to his tenent : and him to be very tenent to that lord , of whom he immediately holdeth . so that if there be lord aboue , lord mesn , and tenent , the lord aboue is not very lord to the tenent , nor the tenent very tenent to the lord aboue . lord in grosse . fitz. nat . br . fol. . is he that is lord hauing noe maner , as the king in respect of his crown . idem , f. . f. see him also , fol. . a. b. where i finde a case wherein a priuate man is lord in grosse . viz. a man maketh a gift in tayle of all the land hee hath , to hold of him and dyeth : his heire hath but a seignorie in grosse . lorimers . anno . r. . cap. . is one of the companies in london , tha makeht bits for bridles of horses and such like . the name seemeth to be taken from the latine ( lorum ) and is else where writen lorinors . lotherwit , aliâs leyerwit , is a libertie or priueledge to take amends of him that defileth your bondwoman without licence , rastall : exposition of words . it is an amends for lying with abondwoman . saxon in his description of england . cap. . some thinke it should be rather writen ( legerwit ) for ( leger ) is the saxon word for a bedde , or ( logherwit ) of the old word ( logher ) being of the same signification . see bloodwit and lyerwit . lusernes , see furre . lushoborow , is a base coine vsed in the daies of king ed. the . coined beyōd seas to the likenes of english money , and brought in to deceiue the king and his subiects . to auoide the which it was made treason for any man wittingly to bring in any such . an . . ed. . stat . . cap. secundo . m macegriefs . aliâs macegrefs . be such as willingly buie and sell stolen slesh , britton , cap. . fo . . b. cromptons iustice of peace . fo . . a. magna assisa eligenda , is a writ directed to the shyreeue , to summon foure lawful knights before the iustices of assise , there vpon their oathes to chuse . knights of the vicenage , &c. to passe vpon the great assise betweene a. plaintife and b. defendant , &c. register originall , fol. . a. magna charta , called in english the great charter , is a charter conteining a number of lawes ordained the ninth yeare of henry the third , and confirmed by edward the first . the reason why it was tearmed magna charta , was either for that it conteined the summe of all the writen lawes in england , or else that there was another charter called the charter of the forest , established with it , which in quantitie was the lesser of the two . i reade in holinshed , that king iohn to appease his barons , yelded to lawes or articles of gouernment much like to this great charter , but wee nowe haue noe auncienter writen lawe , then this , which was thought to be so beneficall to the sublect , and a lawe of so great equitie in comparison of those , which were formerly in vse , that k. henry the third was thought but hardly to yeld vnto it , and that to haue the fifteenth peny of all the moueable goods both of the spiritualtie and temporaltie throughout his realme . holinshed in henry the third . and though this charter consist not of aboue . chapters or lawes : yet is it of such extent , as all the lawe wee haue , is thought in some sort to depend of it . polydorus and holinshed , vbi supra . mahim ( mahemium ) commeth of the old french ( mehaigne ) as m. skene saith , de verbo . signif . verbo machanium , and signifieth a corporal hurt , whereby a man looseth the vse of any member , that is or might bee any defence vnto him in batel . the canonists call it membrimatilationem , as the eye , the hand , the foote , the scalpe of the head , his foretooth , or , as some say , of any finger of his hand , glanuile lib. . ca. . see bracton at large , lib. . tracta . . cap. . nu . . and britton cap. . and stawnf . pl. cor . lib. pri . ca. . and the newe exposition of law termes , and the mirrour of iustices , cap. d'homicid . the grand custumarie of normandie , cap. . calleth it mahaignium , and defineth it to be enormem laesionem . all agree that it is the losse of a member , or the vse thereof . and membrum , as cassan : de consuetu : burgund . pag. . defineth it out of baldus , est pars corporis habens destinatam operationem in corpore . where you may reade more of this point . but if you will see it largely discussed , look vgolinus de irregularitatibus , ca. . § . . . . also read m. skene vbi supra . mainour , aliâs manour , aliâs meinoure , seemeth to come of the french ( manier . i. manu tractare , attrectare ) or els of ( ameuer . i. abducere ) . it signifieth in our common lawe , the thing that a theefe taketh away or stealeth : as to be taken with the mainor . pl. cor . fol. . is to be taken with the thing stolen about him : and againe , fol. . it was presented that a theefe was deliuered to the vicount together with the mainor : & thirdly , fol. . if a man be indited that he feloniously stole the goods of another , where , in truth , they bee his owne goods , and the goods bee brought into the court as the manour , and it be demaunded of him , what hee saith to the goods , and he disclaime them : though he be quitted of the felonie , he shall loose the goods , and againe . fol. . if the defendant were taken with the manour , and the manour bee caried to the court , they in auncient times would arraine him vpon the manour , without any appeale or inditement . i find this word vsed in the old . nat . br . fol. . in this sort : where a man maketh a thing by mainour , or leuying , or estopping , in such case he shall haue assise . where it signifieth handie labour , and is but an abbreviation of mainovrey . mainovre , see minouerye . mainprise ( manucaptio ) is compounded of two french words ( main . i. manus ) & ( prins . i. captus ) which is a participle of the verbe ) prendre i. capere , excipere , captare ) it signifieth in our common lawe , the taking or receiuing a man into friendly custody , that otherwise , is or might bee committed to the mercie of the prison , vpon securitie giuen for his forth comming at a day assigned : as to let one to mainprise . old nat . br . fol. . is to commit him to them , that vndertake his apparence at the time appointed . and they that do thus vndertake for any , are called mainpernouns , because they do receiue him into their hands . pl. cor . fol. . of this sort is the word ( mainpernable ) which signifieth him that hath committed such an offence , as by law he may be thus bayled . for in many cases a man is not mainpernable : whereof see broke , titulo mainprise , per totum . and fitz. nat . br . fol. . & seqq . m. manwood in the first part of his forest lawes . pag. . maketh a great difference betweene bayle and mainprise . for he that is mainprised ( quoth he ) is alwayes said to be at large , and to goe at his owne libertie out of ward , after the day is set to mainprise , vntill the day of his appearance , by reason of the said common summons or otherwise . but otherwise it is , where a man is let to bayle to foure or two men , by the lord iustice in eyre of the forest , vntill a certaine day . for there he is alwayes accounted by the lawe to be in their ward and custody for the time . and they may , if they will , keepe him in ward , or in prison all that time , or otherwise at their will. so that he that is so bayled , shall not be said by the lawe to be at large , or at his owne libertie . thus farre m. manwood . the myrror of iustices maketh a difference also betweene pledges and mainpernours , saying , that pledges are more generall , & that mainpernours are bodie for bodie . lib. . cap. de trespasse venial . and lib. . cap. des pledges & mainpernours . when mainprises may be granted , and when not , see cromptons iustice of peace . fol. . &c. vsque . and lamberd . eiren. lib. . cap. . pag. . . . . . see also britton fol. . a. cap. des pledges & mainpernours : the author of the myrror of iustices saith , that pledges bee those , that bayle or redeeme any thing but the body of a man , and that mainpernours be those , that free the body of a man. and that pledges therefore belong properly to reall and mixt actions , and mainpernours to personall . maintenance ( manutentio vel manutenentia ) is a french word , and signifieth an vpholding of a cause or person , metaphorically drawne from the succouring of a young child , that learneth to goe , by ones hand . in our common lawe , it is vsed in the euill part , for him , that secondeth a cause depending in suite betweene others , either by lending of mony , or making friends for either partie , toward his help . anno . henr. . cap. . and when a mans act in this kinde is by lawe accounted maintenance , and when not , see broke , titulo maintenance : and kitchin , fol. . & seqq . and fitz. nat . br . fol. . and cromptons iurisdict . fol. . the writ that lyeth against a man for this offence , is likewise called maintenance . termes of the lawe . verb. maintenance . speciall maintenance kitchin , fol. . seemeth to bee maintenance most properly so tearmed . of this see cromptons iustice of peace . fol. . b. and the new booke of entries . verbo , maintenance . maintenance , vid. nouos terminos iuris . make ( facere ) signifieth in the common lawe , to performe or execute : as to make his lawe , is to performe that lawe which he hath formerly bound himselfe vnto , that is , to cleare himselfe of an action commenced against him by his oath , and the oathes of his neighbours . old nat . br . fol. . kitchin fol. . which lawe seemeth to be borowed of the feudists , who call these men that come to sweare for another in this case , sacramentales . of whom thus saith hotoman in verbis foundal . sacramentales a sacramento i. iuramento diccbantur ●i , qui quamuis res , de qua ambigebatur , testes non fuissent , tamen ex eius , cuius res agebatur , animi sententia , in eadem quae ille verba iurabant : illius vide licet probitate & innocentia confisi . nam tum demum adhibebantur , cùm testes nulli extarent . see the rest . the formall words vsed by him that maketh his lawe , are commonly these . heare o ye iustices , that i doe not owe this summe of money demaunded , neither all nor any part thereof , in maner and forme declared , so helpe me god , and the contents of this booke . to make seruices or custome , is nothing else but to performe them . old. nat . br . fol. . to make oath , is to take an oath . maletent , in the statute called the confirmation of the liberties of &c. anno . ed. prim . cap. . is interpreteted to be a tolle of . shillings for euery sacke of wooll . stow in his annals calleth it a maletot . pag. see also the statute ( de tallagio non concedendo ) an . . eius . stat . . malin . see marle . manbote signifieth a pecuniary compensation for killing of a man. lambard in his exposition of saxon words . verbo aestimatio . of which reade roger houeden also , in parte poster . suorum annal . fol. . a. b. mandamus , is a writ , that lyeth after the yere and day , wheras in the meane time the writ called ( diem clausit extremum ) hath not bene sent out to the excheatour , for the same purpose , for the which it should formerly haue bene sent forth . fitzh . nat . br . fol. . b. see diem clausit extremum . mandamus is also a charge to the shyreeue , to take into the kings hands , all the lands and tenements of the kings widowe , that against her oath formerly giuen , marieth without the kings consent . register . fol. . b. see widow . mandatum , is a commaundment iudiciall of the king or his iustices , to haue any thing done for the dispatch of iustice , wherof you shall see diuersity in the table of the register iudiciall . verbo mandatum . maner ( manerium ) seemeth to come of the french ( manoir . i. domicilium , habitatio ) m. skene . de verbo . significatione . verbo manerium , saith it is called manerium , quasi manurium , because it is laboured with handy worke by the lord himselfe . it signifieth in our common law , a rule or gouernmēt , which a man hath ouer such as hould land within his fee. touching the originall of these maners , it seemeth that in the beginning , there was a certaine compasse or circunt of ground , graunted by the king vnto some man of worth ( as a baron or such like ) for him and his heires to dwell vpon , and to exercise some iurisdiction more or lesse within that compasse , as he thought good to graunt , performing him such seruices , and paying such yearely rent for the same , as he by his graunt required : and that afterward this great man parcelled his land to other meaner men , inioyning them againe such seruices and rents , as he thought good , and by that meanes , as he became tenent to the king , so the inferiours became tenents vnto him . see perkins reseruations . and andrew horns booke intituled the mirrour of iustices li. . ca. du . roy alfred . see the definition of a maner . fulb. fol. . and this course of benefiting or rewarding their nobles for good seruice , haue our kings borowed from the emperours of rome , or the lombard kings , after they had setled themselues in italy , as may well appeare by antonius contius in methodo feudorum , c. i. de origine , & libris feudorum . and i finde that according to this our custome , all lands houlden in fee throughout fraunce , are diuided into fiefz and arrierfiefz : whereof the former are such as are immediatly graunted by the king , the secōd such as the kings feudataries doe againe graunt to others . gregorii syntagm . lib. . an . . nu . . but the inconstancy of mans estate , and the mutability of time , hath brought to passe , that those great men , or their posterity , haue alienated these mansions and lands so giuen them by their prince , and others that had none , haue by ther welth purchased many of them : and againe that many for capitall offences haue forfeited them to the king , and that thereby they still remaine in the crowne , or are bestowed againe vpon others : so that at these daies many be in the hands of mean men , such as by their skill in lawe or phisicke , by merchaundize , grazing , or such other good husbandry , haue gathered welth , and inabled themselues to purchase them of those , that by discent receiued thē from their ancestors in greater aboundance , then wit to keepe them . but who so euer possesseth these maners , the liberty belonging vnto them is reall and prediall ; and therefore remaineth still , though the owners be changed . in these daies a maner rather signifieth the iurisdiction and royalty incorporeal , then the land or site . for a man may haue a maner in grosse ( as the law termeth it ) that is , the right and interest of a court baron , with the perquisites thereunto belonging : and another or others haue euery foote of the land thereunto belonging . kitchin . fol. . brooke hoc titulo per totum . bracton , lab : . ca. . nu . . diuideth manerium , in capitale & non capitale . see bracton lib. . tracta . . ca. . nu . pri . see fee : the new expositor of law terms saith , that manour is a thing compounded of diuers things , as of a house , land earable , pasture , meadow , wood , rent , advouzen , court baron , and such like . and this ought to be by long continuance of time , to the contrary whereof mans memory cannot discerne , &c. mansion ( mansio ) as eracton defineth it , lib. . cap. . nu . pri . is a dwelling , consisting of one or more houses without any neighbour . and yet he graunteth forthwith , that mansio mansioni possit esse vicinata . i finde it most commonly vsed for the lords cheife dwelling house within his fee , whether it haue neighbours adioyning or not , otherwise called the capitall mesuage . bracton . li. . c. . or the cheife maner place . mansio amongst the auncient romans , was a place appointed for the lodging of the prince or souldiers in their iourney , furnished with conuenient entertainement by the neighbours adioyning . and in this sence we reade primam mansionem , for the first nights lodging , and so in order . it is probable that this word ( mansion ) doth in some construction signifie so much land , as beda calleth familiam in his ecclesiasticall history . for master lambert in his explica . of saxon words , ver . hida terrae , saith , that that which he calleth familiam , others sithence call manentem vel mansam . ( mansus and mansum ) i reade of in the feudists , which as hotoman saith , in verbis feudalibus , est neque domus , neque area , neque hortus , sed ager certi modi ac mensurae . and againe , in commentarus feudorum , lib. p. tit . . vers . de manso . agri deserti & inculti certa mensura dabantur cultoribus quasi in emphyteusin , vt culti & meliorati , feudi iure a vasallis possiderentur . in contractu autem vasalls nonnunquam incrementum . i. meliorationem omnem sibi recipiebant , siue per culturam , siue per inaedificationem ea melioratio fieret , &c. and cassanaeus de consuet . burg. pag. . defineth it thus : mansus est , quantum qu is cum vno pari boum laborare possit . prouing it out of bartolus , in li. si ita . 〈◊〉 . de auro & argen . legato : in fine legis . reade m. skene de verbo . sign . verbo mansus . i reade the latine word ( mansia ) in the same signification , as namely in the charter graunted by king kanulphus to ruchin the abbot of abingdon , which sir edward cooke setteth downe in his booke de iure regis ecclesiastico . manslaughter ( homicidium ) is the vnlawfull killing of a man , without prepensed malice : as when two , that formerly meant no harme one to the other , meet togither , and vpon some sodaine occasion falling out , the one killeth the other . west par . . symb . titulo inditements . sect . . it differeth from murder , because it is not done with foregoing malice : & from chauncemedly , because it hath a presēt intēt to kill . and this is felony , but admitteth clergie for the first time . stawnf . pl. cor . lib. . cap. . and britton ca. . it is confounded with murder in the statute , anno . ed. . ca. . mantyle ( mantile ) commeth of the french ( manteau ) and signifieth with vs a long roabe , anno . hen. . cap. . manucaptio , is a writ that lyeth for a man , who taken for supition of felony , and offering sufficient bayle for his appearance , cannot be admitted thereunto by the shyreeue , or other hauing power to let to mainprise . fitzh . nat . br . fol. . see mainprise . how diuersly it is vsed , see the register originall , in the table . manuel ( manualis ) is a thing whereof present profit may be made . stawnf . praerogat . fol. . and a thing not manuell is that , whereof no present profit may be made , but hereafter , when it falleth , ibid. manumission ( manumissio ) is a freeing of a villein or slaue out of his bondage . the forme of this in the time of the conquerour , m. lamb. in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . fol. . setteth downe in these words : si quis velit seruum suum liberum facere , tradat eum vice-comiti , per manum dexteram , in pleno comitatu , & quietum illum clamare debet à iugo seruitutis suae per manumissionem : & ostendat ei liberas portas , & vias , & tradat illi libera arma , scilicet lanceam & gladium : & deinde liber homo efficitur . some also were wont to be manumitted by charter of manumission . vide brooke , titulo villenage . fol. . the newe expositour of lawe termes maketh two kinds of manumission : one expressed , an another implied . manumissiō expressed is , when the lord maketh a deede to his villein to infranchise him by this worde ( manumittere ) the maner of manumitting in old time was thus : the lord in presēce of his neighbours tooke the bondman by the head , saying : i will that this man be free , and therewith shoued him forward out of his hands . manumission implied , is , when the lord maketh an obligation for paiment of mony to him at a certaine day , or sieweth him , where he might enter without suite , or granteth him an annuitie , or leaseth land vnto him by deede , for yeeres , or for life , and such like . manutenentia , is the writ vsed in case of maintenance , register originall , fol. . & . see maintenance . marches ( marchia ) be the bounds and limits betweene vs and wales , or betweene vs and scotland . anno . . henry . cap. . camd. pag. . & . and the marches of scotlād are deuided into west and midle marches anno . h. . ca. . & anno . ed. . cap. . it seemeth to bee borowed from the german ( march. i. limes ) camd. britan. pag. . or it may be from the french ( marque . i. signum ) being the notorious distinction of two diuers countries or territories . it is vsed in the statute anno . hen. . ca. . generally for the precincts of the kings dominions . marchers , be the noble men dwelling on the marches of wales or scotland : who in times past ( as m. camden saith , pag. . ) had their priuate lawes , much like as if they had beene kings , which now be worne out . of these marchers you may reade , anno . h. . cap. . & anno . hen. . cap. . & anno . ed. . cap. . where they are called lord marchers . see anno . hen. . cap. . howe these were extinguished . mareshall ( mariscallus ) is a french word , signifying as much as tribunus celerum , or tribunus militum with the auncient romanes , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 with the grecians , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . tiraquel . de nobilitate , ca. . p. . nu . . the french word may seeme also ( among many other that they haue , to proceede from the german marschalk . i. equitum magister . which hotoman in verbis feudalibus , verbo marschalkus , deriueth from the old word ( march ) signifiing a house , with whome agreeth lupanus , de magistratibus eranciae , lib. pri . ca. marcshallus . others make it of these two saxon words . ( mar. i. equus and scalch . i. praefectus ) or as m. verstegan saith , from ( mare ) the generall appellation of all horses , as hors ) is now in englishe , and ( scalc ) which , in the auncient language of the netherlanders , he affirmeth to signifie a kind of seruant , as scalco , doth at this day among the italians , being originally a dutch word . with vs there be diuers officers of this name : but one most noble of all the rest , who is called lord or earle marshall of england , of whome mention is made in diuers statutes , as anno . . h. . ca. . & . & anno . . rich. . ca. . his office consisteth especially in maters of warre and armes , as well with vs as in other countries . whereof you may reade in lupanus vbi supra . and tilius . li. . ca. de conestabili , mariscallo . &c. but he that will knowe the office of our lord marshall , had neede beside the fewe statutes which concerne him , to read his commission , and also to haue acces to the heradls , who out of their antiquities are able to discouer much , that by prescription belongeth vnto this office . the next to this is the marshal of the kings house , whose especiall authoritie is , according to britton and m. gwin in the preface to his reading , in the kings place to heare and determine all plees of the crowne , and to punish faults committed within the verge , & to heare and determine suites betweene those of the kings houshold , and others within the verge . cromptons iurisdict . fol. . of him you may reade fitzh . nat . br . fol. . b. and anno . . ed. . statut . . ca. . & anno . ed. . stat . . c. . & an . . h. . c. . & a. . h. . c. . fleta saith , that the office of the marshall of the kings house belongeth to the earle of northf . in fee , and that he may appoint ( with the kings consent ) a knight vnder him to execute the office . which office he also describeth to be especially to execute the iudgements & decrees of the steward , & to haue the keeping of the prisoners . li. . cap. . and read farder of his office in the . chapter of the said booke , which is to dispose of the lodging in the kings houshold vnder the chamberlaine , and to cleere the verge of strumpets , &c. anno . hen. . statut . . then be there other inferiour officers of this name : as marshall of the iustices in eyre , anno . ed. . ca. . marshall of the kings bench , anno . ed. . ca. . and this is he which hath the custodie of the prison , called the kings bench in southwarke . fitzh . nat . br . fol. . i. and these inferiour marshalls be either ad placitum , or in fee , kitchin. fol. . i finde also in fleta li. . ca. . mention of a marshall of the kings hall , whose office is , when the tables be prepared and clothes laide , to call out both those of the houshold and straungers , according to their worth , and decently to place them , to reiect vnworthy persons , to knowe the number of the hall , and to testifie it at the next accompt , to see dogs kept out , to saue the almes from filching , to see filence kept , and euery man competently serued with meate and drinke , and when the courte remoueth , to appointe euery one of the houshold his lodging . there is also a marshall of the esche quer , anno . . h. . sta . . to whome the courte committeth the custody of the kings debters during the terme time , to the end they may be farder imprisoned , if they cleere not their debts . he also assigneth shyreeues , escheators , customers , and collectors , their auditours before whome they shall accompt . he hath all inquisitions taken before escheators virtute officii , deliuered vnto him , to be deliuered by him to the treasurers remembrancer . mareshalsee ( marescaltia ) is the court of the marshall or ( word for word ) the seate of the marshall , of whome see cromptons iurisdict . fol. . it is also vsed for the prison in southwarke , the reason whereof may be , because the marshall of the kings house was wont perhaps to sit there in iudgment . see the statute anno . r. . cap. . & anno . hen. . ca. . martiall lawe , is the law that dependeth vpon the voice of the king , or the kings leiuetenent in warres . for how be it , the king for the indifferent and equall temper of lawes to all his subiects , doe not in time of peace make any lawes but by the consent of the three estates in parlament : yet in warres by reason of great daungers rising of small occasions , he vseth absolute power : in so much as his word goeth for law . and this is called martiall law . smith de repub : angli : li. . c. . see law of armes . mariage ( maritagium ) signifieth not onely the coupling together of man and wife , but also the interest of bestowing a ward or a widow in mariage . magna charta , ca : . anno . he. . and bracton lib. . ca. . and also it signifieth land giuen in mariage , bracton li. . ca. . & . and in this signification the same authour saith , that maritagium est aut liberum aut seruitio obligatum . li. . ca. . nu . . & . liberum maritagium dicitur , vbi donator vult , quòd terra sic data , quieta sit & libera ab omni seculari seruitio , quod ad dominum feudi possit pertinere ; et ita quòd ille , cui sic data fuerit , nullum omninò inde faciat seruitium vsque ad tertium haeredem , & vsque ad quartum gradum : ita quòd tertius heres sit inclusivus . see the rest . see also skene de verbo . significatione , verbo maritagium , who is worth the reading . maritagio amisso per defaltam , is a writ for the tenent in frank mariage , to recouer lands , &c. whereof he is deforced by another . regist . fol. . maritagio forisfacto , is a writ . see forisfactura maritagii . marke , ( merca ) commeth of the saxon ( mearc ) which signifieth a peece of mony worth thirty siluer pence . lamb. explicat . of saxon words . verbo , mancusa : what it now signifieth in our coyne euery man knoweth . but in auncient times i find a merke of gold , which was the quantitie of eight ounces . stowes annals . pag. . and againe , pag. . . merkes of golde troy weight , the which was . pounds of english mony , after which rate euery merke valued . pounds , . shillings , . pence . m. skene de verbor . signific . verbo , merke . saith , that in tractatu de ponderibus & mensuris , a mercke signifieth an ounce weight , or halfe a pound , wherof the dramme is the eighth part , like as the ounce is the eighth part of a marcke : citing cassanaeus de consuet . burgund . rub. prim . § . . verbo . solz turnoys . hiis verbis . solidus ( inquit ) in iure capitur pro auro , quorum . faciunt libram auri , & duodecim vncia faciunt libram , & octo vnciae mercā . market ( mercatus ) commeth of the french ( marche . i. emporium , forum nundinarium ) it signifieth with vs , the same thing , and also the liberty or priuiledge whereby a towne is enabled to keepe a market . old nat . br . fol. . so doth bracton vse it , lib. . cap. . num . . & lib. . cap. . where he sheweth , that one market ought to bee distant from another sex lencas & dimidiam , & tertiam partem dimidiae . the reason thereof both he and fleta giueth in these wordes : quia omnes rationabiles dietae constant ex . milliaribus . diuidatur ergo dieta in tres partes : prima autē matutina detur euntibus versus mercatum : secunda detur ad emendum & vendendum : quae quidem sufficere debet omnibus , nisi sint forte mercatores statarii qui merces deposuerint & exposuerint venales , quibus necessaria erit prolixior mora in mercatu : & tertia pars relinquitur redeuntibus de mercatu ad propria . et quaequidem omnia necesse erit facere de die , non de nocte , propter infidias & incursum latronum , vt omnia sint in tuto , &c. lib. . cap. . § . item refert . marle , is a kind of stone or ●halke , which men in diuers countries of this realme , cast vpon their land to make it the more fertile . it is some where called malin . anno . edvard . . cap. . marque , seemeth to bee a french word signifying notam , vel signum , or else to come from the german ( march . i. limes ) it signifieth in the aunciēt statutes of our land , as much as reprisals , as anno . h. . cap. . marques and reprisals are vsed as synonyma . and leters of marque are found in the same signification in the same chapter . the reason may be , because ●●e griefes wherevpon these le●●rs are sought and graunted , are commonly giuen about the ●ounds and limits of euery contrey : or at least the remedie for the same is likest there to bee had by some sodaine inrode , & happing of such recompence of the iniurie receiued , as may most conueniently be lighted vpon . see reprisals . see marches . marquis ( marchio ) by the opinion of hotom . verbo marchio , in verbis feudalibus , commeth of the german march. i. limes , signifiing originally as much as ( custos limitis ) or ( comes & praefectus limitis ) of these zasius thus writeth : de marchione nihil compertū est , nisi quod gothicum vocabulum putamus . and afterward thus : huiusmodi marchionum ( siue vt nos appellamus ) margraphiorum origo in limitaneos , praepositos , siue duces referenda : margraphis dicti quòd limitibus , quos vulgò marken appellamus , graphii , id est praepositi fuerunt , &c. for in those teritories , that haue naturally noe bounds of great strength or defence , there is neede of wise and stout men toward their borders , for the keeping out of neighbour enemies . but here in england though we haue a lord warden of the marches northward , and a warden of the cinque ports toward the south east , and were wont to haue lo. marchers between vs and wales , that serued this turne , yet those which we call marquises , are lords of more dignity , without any such charge : and are in honour and accompt next vnto dukes . at this day i know but one in england , and that is the marquis of winchester , being of that noble familie of the powlets . see cassanaeus de consuetud . burg. pag. . marrow , was a lawyer of great accompt , that liued in henry the seuenth his daies , whose learned readings are extant , but not in print . lamb. eiren. li. pri . cap. . marterns , see furre . master of the rols ( magister rotulorum ) is an assistāt vnto the lord chauncelour of england in the high court of chauncery , and in his absence heareth causes there , and giueth orders . crompt . iurisd . fol. . his title in his patent ( as i haue heard ) is clericus paruae bagae , custos rotulorum & domus conuersorum . this domus conuersorum , is the place where the rols are kept , so called because the iewes in auncient times , as they were any of them brought to christianity , were bestowed in that house separatly from the rest of their nation . but his office seemeth originally to haue sprong , from the safe keeping of the roules or records of inditements passed in the kings courts , and many other things . he is called clerke of the rols , anno . r. . ca. . and in fortescue his booke , cap. . and no where master of the rols , vntil anno . hen. . cap. . and yet anno . einsdem , cap. . he is also called clerk . in which respect , sir thomas smith , li. . ca. . de repnb . angl. well saith that he might not vnfitly be called ( custos archiuorum ) . he seemeth to haue the bestowing of the offices of the sixe clerks . anno . & . hen. . cap. . master of the mint , anno . hen. . cap. . he is now called the warden of the mint , whose office , see in mint . master of the court of wards and liueries , is the cheife and principall officer of the court of wards and liueries , named and assigned by the king , to whose custodie the seale of the court is committed . he at the entring vpon his office , taketh an oath before the lord chauncelour of england , well and truly to serue the king in his office , to minister equal iustice to rich & poore , to the best of his cunning , witte , and power , diligently to procure all things , which may honestly and iustly be to the kings aduātage and profit , and to the augmentation of the rights and prerogatiue of the crowne , truly to vse the kings seale appointed to his office , to end eauour to the vttermost of his power , to see th 〈…〉 king iustly aunswered of all suc 〈…〉 profits , rents , reuenewes , a 〈…〉 issues as shall yearely rise , grow , or be due to the king in his office from time to time , to deliuer with speed such as haue to do before him , not to take or receiue of any person any gift or reward in any case or mater depending before him , or wherein the king shall be party , whereby any preiudice , losse , hinderance , or disherison shall be or grow to the king , a. . h. . c. . master of the horse , is he that hath the rule and charge of the kings stable , being an office of high accompt , and alwaies bestowed vpon some noble man both valiant and wise . this officer vnder the emperours of rome , was called ( comes sacri stabuli . ) the master of the horse is mentioned . anno . eliz. cap. . & anno prim . ed. . cap. . master of the posts , is an officer of the kings court , that hath the appointing , placing , and displacing of all such through england , as prouide post horse for the speedie passing of the kings messages and other businesse , in the through-fayre townes where they dwell : as also to see that they keepe a certaine number of conuenient horses of their owne , and when occasion is , that they prouide others , wherewith to furnish such , as haue warrant from him to take post horses , either from or to the seas , or other borders , or places within the realme . he likewise hath the care to pay them their wages , and make their allowance accordingly , as he shall thinke meete . this officer is mentioned , anno . ed. . cap. . master of the armorie , is he that hath the care and ouersight of his maiesties armour for his person or horses , or any other prouision or store thereof in any standing armories : with command , and placing or displacing of all inferiour officers thereunto appertaining . mention is made of him . anno . eliz . cap. . master of the iewel house , is an officer in the kings houshould , of great credit , beeing allowed bouge of court , that is , diet for himselfe and the inferiour officers . viz. clerks of the iewell house , and a speciall lodging or chamber in court , hauing charge of all plate of gold , of siluer double or parcell guilt , vsed or occupied for the kings or queenes board , or to any officer of accompt attendant in court , and of all plate remaining in the tower of london , of cheynes and loose iewels not fixed to any garment . mention is made of this officer anno . eliz. cap. . master of the kings houshould , , ( magister hospitii ) is in his iust title called grand master of the kings houshould , and beareth the same office that he did , that was wont to be called lord steward of the kings most honorable houshould . anno . h. . ca. . whereby it appeareth , that the name of this officer was then chaunged , and charles duke of suffolke , president of the kings councell , then enioying that office , was so to be called euer after , so long as he should poffesse that office . master of the ordinance . anno . el. cap. . is a great officer , to whose care all the kings ordinance and artillerie is committed , being some great man of the realme , and expert in marshall affaires . master of the chauncery ( magister cancellariae ) is an assistant in chauncerie to the lord chaunceler or lord keeper of the broad seale in maters of iudgement . of these there be some ordinarie , and some extraordinarie : of ordinarie there be twelue in number , whereof some fit in court euery day thorough each terme , and haue committed vnto them ( at the lord chauncelers discretion ) the interlocutorie report , and sometimes the finall determination of causes there depending . master of the kings musters , is a martiall officer in all royall armies most necessarie , as well for the maintaining of the forces complete , well armed and treined , as also for preuention of such fraudes , as otherwise may exceedingly waste the princes treasure , and extreamly weaken the forces . he hath the ouersight of all the captaines and bands , and ought to haue at the beginning deliuered vnto him by the lord generall , perfect lists and rolles of all the forces both horse and foot , officers , &c. with the rates of their allowances signed by the lord generall , for his direction and discharge , in signifying warrants for their full pay . this officer is mentioned in the statue , anno . ed. . cap. . and muster master generall , anno . eliz. cap. . who so desireth to reade more of him let him haue recourse to master digs his stratioticos . master of the wardrobe ( magster garderobae ) is a great and principall officer in court , hauing his habitation and dwelling house belonging to that office , called the wardrobe neere puddle-wharfe in london . he hath the charge and custodie of all former kings and queenes auncient robes , remaining in the tower of london , and all hangings of arras , tapestrie , or the like , for his maiesties houses , with the bedding remaining in standing wardrobes , as hampton court , richmond , &c. he hath also the charging and deliuering out of all either veluet or scarlet allowed for liueries , to any of his maiesties seruants of the priuie chamber , or others . mention is made of this officer . anno . . eliz. ca. . mater in deede , and mater of record , are said to differ . old . nat . br . fol. . where mater in deede , seemeth to be nothing else , but a truth to be prooued , though not by any record : and mater of record , is that which may be proued by some record . for example , if a man be siewed to an exigent , during the time he was in the kings warres , this is mater in deede , and not mater of record . and therefore ( saith the booke ) he that will alledge this for himselfe , must come , before the scire facias for execution be awarded against him . for after that , nothing will serue but mater of record ; that is , some errour in the processe appearing vpon the record . kitchin fol. . maketh also a difference betweene mater of record , and a specialitie , and nude mater ; where he faith , that nude mater is not of so high nature , as either a mater of record or a speciality , otherwise there called mater in deede ; which maketh mee to thinke , that nude mater is a naked allegation of a thing done , to be proued only by witnesses , and not either by record , or other speciality in writing vnder seale . mauger , is shuffied vp of two french words ( mal ) and ( gre ) id est , animo iniquo ) it fignifieth with vs as much as in despight , or in despight of ones teeth . as the wife mauger the husbande , litleton fol. . that is , whether the husbund will or not . meane ( medius ) signifieth the middle betweene two extreames , and that eitherin time or dignitie . example of the first : his action was meane betwixt the disseisin made to him and his recouerie : that is in the interim . of the second there is lord meane and tenent . see mesn . mease ( mesuagium ) seemeth to come of the french ( maison ) or rather ( meix ) which word i finde in cassanaeus de consuetu . burgund . pag. . and interpreted by him mansus : what mansus is , see mansiō . it signifieth a house . kitchin fol. . and fitzh . nat . br . fol. . c. see mesuage . medlefe . cromptons iustice of peace , fol. . is that which bracton calleth ( medletum ) it. . tract . . ca. . it seemeth to signifie quarels , scuffling , or brawling , & to be deriued from the french ( mesler ) . i. miscere , turbare meere ( merus ) though an adiectiue , yet is it vsed for a substantine , signifiing meere tight . owld nat . br . fol. . in these words . and knowe yee , that this writte hath but two issues : that is to say , ioyning the mise vpon the meere : and that is , to put himselfe in the great assise of our souerainge lord the king , or to ioyne battell . see mise . mesurement . see admesurement . medietas linguae , signifieth an enquest empaneled vpon any cause , wereof the one halfe consisteth of denizens , the other of straungers . it is called in english the halfe tongue , and is vsed in plees , wherein the one party is a straunger , the other a denizen . see the statute , anno . ed. . ca. . & . anno , . eiusdem , statu : . ca. . commonly called the statute of the staple . & anno . . h. . ca. . & . anno . . he. . ca. . & . anno . . he. . ca. . & . anno . . & . . phi. & . mar. ca. . and before the first of these statutes was made , this was wonte to be obteined of the king by graunt made to any company of straungers , as lombards , almaines , &c. stawnf . pl. cor . lib. . ca. . medio acquietando , is a writ iudiciall , to distraine a lord for the acquiting of a meane lord from a rent , which he formerly acknowledgeth in court not to belong vnto him . register iudiciall , fol. . b. melius inquirendo , is a writ that lyeth for a second inquiry , as what lands and tenements a man dyed seised of , where partiall dealing is suspected vpon the writ , diem clausit extremum . fitzh . nat . br . fol. . merchenlage , was one of the three sorts of lawes , out of which the conquerour framed lawes vnto vs , mingled with those of normandy . camd. britan. pag. . who also , pag. . sheweth that in the yeare of our lord . this land was diuided into three parts , whereof the west saxons had one , gouerning it by the lawes called west saxon lawes , and that conteined these nine shyres , kent , southsex , south . rey , barkeshire , hamshire , wilshire . somerset , dorset and deuonshire . the second by the danes , which was gouerned by the lawes called denelage , and that conteined these fifteene shires , yorke , darby , notingham , leycester , lincolne , northampton , bedford , buckingham , hertford , essex , midlesex , northf . southf . cambridge , huntington . the third was possessed and gouerned by the mercians , whose lawe was called merchenlage . which were these eight , glocester , worcester , hereford , warwicke , oxenford , chester , salop , and stafford . see lawe . mercy ( misericordia ) signifieth the arbitrement or discretion of the king or lord , in punishing any offence , not directly censured by the law . as to be in the grieuous mercie of the king . anno . h. . cap. . is to be in hazard of a great penaltie . see misericordia . measondue , ( domus dei ) commeth of the french ( maison de dien ) by which names diuers hospitals are named . you find the word , anno . & . philip. & mar. cap. . in fine . mese , see mease . mesn ( medius ) seemeth to come from the french ( mainsnè . i. minor natu ) it signifieth in our common lawe , him that is lord of a maner , and thereby hath tenents holding of him , yet holding himselfe of a superiour lord. and therefore it seemeth not absurdly to be drawne from the french ( mainsnè ) because the lordship is created after the higher , whereof he holdeth . mesn also signifieth a writ , which lyeth where there is lord , mesn , and tenent , the tenent holding of the mesn by the same seruices , whereby the mesn holdeth of the lord , and the tenent of the mesn is distrained by the superiour lord , for that his seruice or rent , which is due to the mesn . fitz. nat . br . fol. . see mesnaltie . mesnaltie ( medietas ) commeth of mesn , and signifieth nothing but the right of the mesn : as , the mesnaltie is extinct . old net . br . fol. . if the mesnalty descend of the tenent . kitchin fol. . for farder vnderstanding wherof , take these words out of the custumarie of norm . medietate tenentur feuda , quando aliqua persona intervenit inter dominum & tenentes . et hoc modo tenent omnes post nati , mediante ante nato . messenger of the exchequer , is an officer there , of which sorte there be foure in that court , that be pursuyvants attending the lord treasurer , to cary his leters and precepts . see pursuyvant . mesuage ( mesuagium ) is a dwelling house . west part . . symbol . titulo . fines . sect . . but by the name of a mesuage may passe also a curtilage , a garden , an orchard , a doue house , a shoppe , a mill , as parcell of an house , as he himselfe confirmeth out of bracton . lib. . cap. . sect . prim . and plowden fol. . . . and of himselfe he auoucheth the like of a cotage , a tost , a chamber , a celler , &c. yet may they be demaunded by their single names . mesuagium in scotland , signifieth the principall dwelling place or house within a barony , which in our land is called a maner-house . skene de verb. significat . verbo , mesuagium , where he citeth vaientine leigh , that in his booke of suruey he affirmeth mesuagium to be the tenement or land earable , and the dwelling house or place , or court hall thereof , to be called the site , in latine called situs . mile ( milliare ) is a quantitie of a thousand paces , otherwise described to containe eight furlongs , and euery furlong to conteine forty lugs or poles , and euery lugger or pole to containe . foote and a halfe . anno . el. cap. . mildernix . anno . iacob . cap. . mindbruch , is hurting of honour and worship . saxon in his description of engl. cap. . miniuer . see furre . minouery . anno . r. . cap. . seemeth to be compounded of two french words ( main . i. manus and ( ouvrer . i. operari ) and to signifie some trespasse or offence committed by a mans handie worke in the forest , as an engyn to catch deere . britton vseth the verbe ( meinoverer ) for to occupie and manure land . cap. . and cap. . main-ovre , for handy-worke . it is not vnlike , that our english ( manure ) is abbreuiated of the french. mint , commeth of the germane word , ( meunk . i. pecunia , moneta ) and it signifieth with vs , the place where the kings coyne is formed , be it gold or siluer , which is at this present , and long hath bene , the tower of london , though it appeare by diuers stories , and other anticuities , that in auncient times the mint hath bene also at c●leis , an . . r. cap. . & anno hen. . stat . . cap. . the officers belonging to the mint , haue not bene alwaies alike . at this present they seeme to be these : the warden , who is the chiefe of the rest , and is by his office to receiue the siluer of the goldsmiths , and to pay them for it , and to ouersee all the rest belonging to this functiō . his fee is an hundred pounds per annum . the master-worker , who receiueth the siluer from the warden , causeth it to be melted , and deliuereth it to the moniers , and taketh it from them againe , when it is made . his allowance is not any set fee , but according to the pound weight . the third , is the controller , who is to see that the mony be made to the iust assise , to ouersee the officers , and controll them , if the money be not as it ought to be : his fee is . merkes per annum . then is the master of the assaye , who weigheth the siluer , and seeth whether it be according to standard : his yerely fee is also an hundred merkes . then is the auditour to take the accompts , and make them vp auditor-like . then is the surueyor of the melting , who is to see the siluer cast out , and not to be altered after it is deliuered to the melter : which is after the assay-master hath made triall of it . then is the clerke of the irons , who seeth that the irons be cleane , and fit to worke with . then the grauer , who graueth the stampes for the monies . then the smyters of irons , who after they be grauen , smiteth them vpon the money . then the melters , that melt the bullion , before it come to the coyning . thē the blanchers , who do aneale , boyle , and cleanse the money . the porter , who keepeth the gate of the mint . the prouost of the mint , who is to prouide for all the monyers , and to ouersee them . lastly , the monyers , who are some to sheere the money , some to forge it , some to beate it abroade , some to roūnd it , some to stampe or coyn it . their wages is not by the day or yeare , but vncertaine , according to the waight of the money coyned by them . other officers that haue benein former time , are said nowe to bee out of vse . misauenture , or misaduenture , commeth neere the french ( mesaduenture . i. infortunium . ) in our common law , it hath an especiall signification for the killing of a man , partly by negligence , and partly by chaunce . as if one thinking no harme , dissolutely throweth a stone , where with he killeth another : or shooteth an arrow , &c. for in this case he committeth not felony , but onely looseth his goods , and hath pardon of course for his life . stawn . pl. cor . li. . ca. . britton ca. . distinguisheth betweene auenture and misauenture . auenture he maketh to be meere chaunce , as if a man being vpon or neere the water , be taken with some sodaine sicknes , and so fall in , and is drowned , or into the fire , and be burned to death . misauenture he maketh , where a man commeth to his death by some outward violence , as the fall of a tree , or of a gate , the running of a cartwheele , the stroke of a horse , or such like . so that misauenture in stawnfords opinione , is construed somewhat more largely , then britton vnderstandeth it . west parte . . symbol . titulo inditement , sect . . maketh homicide casuall , to be meerely casuall or mixt . homicide by meere chaunce , he defineth sect . . to be , when a man is slaine by meere fortune , against the minde of the killer ; as if one hewing , the axe flieth of the haste , and killeth a man. and this is all one with brutons misauenture . homicide by chaunce mixed he defineth sect . . to be , when the killers ignorance or negligence is ioyned with the chaunce : as if a man loppe trees by an high way side , by which many vsually trauell , and cast downe a bowgh not giuing warning , &c. by which bowgh a man passing by is slaine . miscontinuance , kitchin fol. . see discontinuance . mise ( misa ) is a french word signifing as much as ( expensum ) in latine , and the latine word ( misa ) is so vsed in kitchin fol. . and in west . parte . . simbol . titulo , proceedings in chauncery , sect . . f. it is vsed anno . & . ed. . ca. . for a somme of mony paid by the kings tenents in certaine counties in wales according to their seuerall customes . in the statute . h. . ca. . it is vsed plurally , for certaine custumary gratuities sent to to the lord marchers of wales , by their tenents , at their first comming to their lands . and anno . & . phil. & mar. ca. . mise is vsed in an action of right or property , for the point whereupon the parties proceede to triall , either by assise or battaile : as issue is in an action personall ; if the mise be vpon battell . litleton fol. . and in the old nat . br . fol. 〈◊〉 . you haue these words . know yea that this writ hath but two issues : that is to say , ioyning the mise vpon the meere , and that is , to put himselfe into the great assise of our soueraigne lord the king , or to ioyne battaile , see anno . ed. . ca. . to ioyne the mise vpon the meere , is as much to say , as to ioyne the mise vpon the cleare right , and that in more plaine terms is nothing else , but to ioyne vpon this point , whether hath the more right , the tenent or demaundant . litleton . li. . ca. . foll . . b. this word in some other place is vsed for a participle , signifiing as much as ( cast or put vpon ) in english , which appeareth by s. ed. cokes report in saffins case . vol. . fo . . a. misericordia , is vsed in the common law , for an arbitrary punishment . bracton li. . tracta . . ca. . in these words . item siquis in misericordiam inciderit pro disseisina , non remanebit misericordia exigenda , si ille qui ●miserit , quaesiuerit conuictionem . kitchin. fol. . out of glanuile saith thus , est autem misericordia , quia quis per iuramentum legalium hominum amerciatus est , ne aliquid de suo honorabili contenemento amitta● , which saying you haue in a maner word forword in glanvile , lib. . cap. . fitzherbert saith , that it is called misericordia , because it ought to be very moderate , and rather lesse then the offence , according to the tenure of the great charter . cap. . this saith fitz. in his nat . br . in the writ de moderata misericordia , fol. . a. i. misericordia is to be quit of misericors , that is , to be discharged of all maner of amercements , that a man may fall into within the forest . crompton . iurisd . fol. . see amerciament . see mercy , and moderata misericordia . miske●ning . i. chaunging of speech in court . saxon in the description of engl. cap. . misnomer , is compounded of the french ( mes ) which in composition alwaies signifieth as much as ( amisse ) and ( nomer . i. nominare . ) it signifieth in our common lawe , the vsing of one name for another , or mis-tearming . broke , titulo misnomer . misprision ( misprisio ) commeth of the french ( mespris . i. fastidiū , contemptus , ) it signifieth in our common lawe , neglect , or negligence , or ouersight : as for example , misprision of treason , or of felony , is a neglect or light accompt shewed of treason or felony commited , by not reuealing it , when we know it to be committed ; stawnf : pl. cor . li. . ca. . which read at large : or by letting any person committed for treason or felony , or suspitiō of either , to goe before he be indited . also misprision of clerks , anno . . he. . ca. . is a neglect of clerks in wrighting , or keeping records . thirdly , anno . . ed. . ca. . statu . pri . by misprision of clerks no processe shal be admitted . misprision of treason , is the concealement , or not disclosing of knowne treason , for the which the offendours are to suffer imprisonment during the kings pleasure , loose their goods , and the profits of their lands , during their liues . crompton in his iustice of peace . cap. misprision of felony , fol. . west . parte . symbol . titulo inditements , sect . . in siue . misprision of felonie , seemeth only finable by the iustices , before whome the party is attainted . crompton . iustice of peace , vbisupra . the iustices of the common place haue power to assesse fines and amerciaments vpon persons offending for misprisions , contempts , or negligences , for not doing , or misdoing any thing , in or concerning fines . west parte . symbol . titulo fines . sect . . iustices of assise shall amend the defaults of clerks misprising of a sillable or leter in writing . cromptons iurisd . fol. . but it is to be noted , that other faults may be accompted misprisions of treasons or felonie , because certaine later statutes doe inflict that punishment vpon them , that of old hath beene inflicted vpon misprisions . whereof you haue an example . anno . el. ca. . of such as coine foreine coines not current in this realme , and of their procurers , aiders , and abetters . and see the newe exposition of lawe termes . misprision signifieth also a mistaking , anno . ed. . stat . pri . ca. . misses , see mise . misuser , is an abuse of libertie or benefite : as , he shall make fine for his misuser . old . nat . br . fol. . mistery ( mysterium ) commeth of the latine ( mysterium ) or rather from the french ( mestier . i. ars , artificium ) an art or occupation . mittendo manuscriptum pedis finis , is a writ iudiciall , directed to the treasurer and chamberlaines of the exchequer , to search and transmit the foote of a fine , acknowledged before iustices in eyre , into the common plees , &c. register . fol. . a. b. mittimus , signifieth a precept sent by the king out of his bench , to those that haue the custodie of fines levied , that they send them by a day assigned to his bench , west parte . symbol . titulo eynes sect . . f. & . b. and also to the exchequer for certificate that iudgment is giuen for the liuerie of lands to such or such a one , out of the kings hands : whervpō he is dismissed also out of the exchequer , a. . r. . c. . of diuers other vses and applicatiōs of this ( mittimus ) see the register originall in the table of the booke . moderata misericordia , is a writ that lieth for him that is amersed in court baron or other , being not of record , for any transgression or offence beyond the qualitie of a fault . it is directed to the lord of the court , or his bayliffe , commanding them to take a moderate amerciament of the party : and is founded vpon magna charta , ca. . quòd nullus liber homo amercietur nisi secundùm qualitatem delicti , &c. the rest touching this writ , see in fitzh . nat . br . fol. . see misericordia . modo & forma , are words of art in a processe , and namely in the answer of the defendant , wherby he denieth himselfe to haue done the thing layde to his charge , modo & forma declarata . kitch . fol. . it signifieth as much , as that clause in the ciuile lawe , negat allegata , prout allegantur , esse vera . moitye , commeth of the french ( moitiè ) id est , coaequa vel mediapars ) and signifieth the halfe of any thing , litleton . fol. . monks clothes , anno . hen. . cap. . moniers ( monetari● ) register . original . fol. . b. & anno . ed. . ca. . be ministers of the mint , which make and coine the kings mony . it appeareth by some antiquity which i haue seen that in auncient times our kings of england had mints in most of the countries of this realme . and in the tractate of the exchequer , writen by ockham , i finde , that whereas the shyreeues ordinarily were tyed to pay into the exchequer the kings sterling , for such debts as they were to answer , they of northumberland , and cumberland , were at libertie to pay in any sort of mony , so it were siluer . and the reason is there giuen , because those two shires , monetarios de antiqua institutione non habent . monstrance de droyt , is as much to say , as shewing of his right . it signifieth in our cōmmon lawe , a sulte in chancerie to be restored to lands or tenements , that indeede be mine in right , though they were by some office found to be in possessiō of another lately dead . see stawnf . praerog . ca. . at large , and brooke , titulo petition . of this also reade sir edward cookes reports , lib. . fol. . b. &c. the wardens of the sadlers case . monstrauerunt , is a writ that lieth for tenents that hold freely by charter in auncient demeane , being distreined for the payment of any tolle or imposition , contrary to their libertie , which they do or should enioy , which see in fitzh . nat . br . fol. . morian , is all one in significatiō with the french ( morion . i. cassis ) a head peece : which word the french man boroweth from the italian ( morione ) anno . . & . phi. & . ma. ca. . morlinge , aliâs mortling . seemeth to be that wolle which is taken from the skinne of a dead sheep , whether dying of the rotte , or being killed . anno . . h. . ca. , this is writen morki● . anno . . iaco. ca. . mort d'auncester , see assise . mortgage ( mortuum vadium , vel morgagium ) is compounded of . french words ( mort , id est , mors ) and ( gage , id est , pignus , merces ) it signifieth in our common lawe , a pawne of land or tenement , or anything moueable , laid or bound for mony borowed , peremptorily to be the creditours for euer , if the mony be not paide at the day agreed vpon . and the creditour holding land or tenement vpon this bargaine , is in the meane time called tenēt in mortgage . of this we reade in the grand custumarie of normandie , cap. . in these wordes . notandum insuper est , quod vadiorum , quoddam viuum , quoddam mortuum nuncupatur . mortuum autem dicitur vadium , quod se de nihilo redimit & acquietat , vt terra tradita in vadium pro centum solidis , quam cum obligator retrahere voluerit , acceptam pecuniam restituet in solidum . vivum autem dicitur vadium , quod ex suis prouentibus acquir atur . vt terra tradita in vadium pro centum solidis vsque ad tres annos , quae , elapso tertio anno , reddenda est obligatori , vel tradita in vadium , quousque pecunia recepta de eiusdem proventibus fuerit persoluta . glanvile likewise lib. . cap. . defineth it thus : mortuum vadium dicitur illud , cuius fructus vel reditus interim percepti in nullo se acquietant . soe you see by both these bookes , that it is called a dead gage , because whatsoeuer profit it yeeldeth , yet it redeemeth not it selfe by yelding such profit , except the whole somme borowed be likewise paid at the day . see m. skene . de verborum signif . eodem . he that layeth this pawne or gage , is called the mortgager , & he that taketh it , the mortgagee . west . par . . symb . titulo fines : sect . . this if it containe excessiue vsurie , is prohibited . anno . h. . c. . mortmaine ( manus mortua ) is compounded of two french words ( mort. i. mors ) and main . i. manus ) it signifieth in the common lawe , an alienation of lands or tenements to any corporation , guilde , or fraternitie , and their successours , as bishops , parsons , vicars , &c. which may not be done without licence of the king , and the lord of the maner . the reason of the name proceedeth from this , as i conceiue it , because the seruices and other profits due for such lands , as escheates , &c. comme into a dead hand , or into such a hand as holdeth them , and is not of power to deliuer them , or any thing for them backe againe . magna charta , cap. . & anno . ed. prim . commonly called ( the statute of mortmaine ) and anno . ed. . statut . . cap. . & anno . richard. . cap. . polydor. virgill in the . booke of his chronicles , maketh mention of this lawe , and giueth this reason of the name . et legem hanc manum mortuam vocarunt , quòd res semel datae collegiis sacerdotum , non vtique rursus venderentur , velut mortuae , hoc est , vsui aliorum mortalium in perpetuum ademptae essent . lex diligenter servatur , sic vt nihil possessionum ordini sacerdotali a quoquam detur , nisi regio permissu . but the former statutes be some thing abridged by anno . elizabeth cap. . by which the gift of lands , &c. to hospitals is permitted without obteining of mortmaine . hotoman in his commentaries de verbis feudal . verbo manus mortua , hath these words . manus mortua locutio est , quae vsurpatur de ijs , quorum possessio , vt ita dicam , immortalis est : quia nunquam haeredem habere desinunt . quâ de causâ res nunquam ad priorem dominum revertitur . nam manus pro possessione dicitur , mortua pro immortali . sic municipium dicitur non mori , l. an vsusfructus . d. de vsufr . legat . quoniam hominibus aliis succrescentibus , idem populi corpus videtur . l. proponebatur . . d. de iudiciis : haec hotemanus . & read the rest . amortizatio , est in manum mortuam translatio principis iussu . petrus belluga in speculo principum : fol. . ius amortizationis est licentia capiendi ad manum mortuam . idem , eodem . where you may reade a learned tractate both of the begicning and nature of this doctrine . to the same effect you may read cassa . de consuetu . burg. pag. . . . . . . . . . m. skene de verborum signif . saith that dimittere terras ad manum mortuam , est idem atque dimittere ad multitudinem sive vniuersitatem , quae nunquam moritur : idque per 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , seu a contrario sensu , because communalties neuer die . mortuary ( mortuarium ) is a gift lest by a man at his death , to his parish church , for the recompence of his personall tithes and offerings not duly payed in his life time . and if a man haue three or more catell of any kind , the best being kept for the lord of the fee , as a heriot , the second was wont to be giuen to the persō in right of the church , cap. statutum . de consuetu . in provincial . touching this you haue two statutes . one anno . ed. pri . commonly called , circumspectè agatis : whereby it appeareth , that mortuaries are suable in the court christian ; the other anno . h. : cap. . whereby is set downe an order and rate in mony for mortuaries . mulier , as it is vsed in the common lawe , seemeth to be a word corrupted and vsed for ( melior ) or rather the french ( melieur ) . it signifieth the lawfull issue preferred before an elder brother borne out of matrimony : anno h. . cap. . smith de repub . anglo . lib. . cap. . but by glanuile lib. : ca. pri . the lawfull issue seemeth rather ( mulier ) then ( melior ) because it is begotten ( è muliere ) and not ( ex concubmâ ) . for he calleth such issue filios mulierato● , opposing them to bastards . and britton cap. . hath frere mulier . i. the brother begotten of the wise , opposit to frere bastard . this seemeth to be vsed in scotland also , for m. skene de verborum signifi . verbo ( mulieratus filius ) saith that mulieratus filius , is a lawful son begotten of a lawfull wife . quia mulieris appellatione vxor continetur . l. mulieris . & ibid. glossa de verborum significatine . mulmutius lawes , see lawe . multure ( molitura , vel multura ) commeth neare the french , ( moulture ) and signifieth in our common lawe , the tolle that the miller taketh , for grinding of corne . murage , ( muragium ) is a tolle or tribute to be leuied for the building or repayring of publike edifices or walles . fitz. nat . br . fol. . d. murage seemeth also to be a libertie graunted by the king to a towne , for the gathering of money toward walling of the same . anno . ed. . cap. . murder ( murdrum ) is borowed of the french , ( meurtrier . i. carnifex , homicida ) or ( meurtre . i. internecio , homicidium , ) the new expositour of the lawe termes draweth it from the saxon word , ( mordren ) signifying the same thing . it signifieth in our common lawe , a wilfull and felonious killing of any other vpon prepensed malice . anno . h. . cap. . west . part . . symbol . titulo , inditements . sect . . bracton . lib. . tract . . cap. num . prim . defineth it to be homicidium , quod , nullo praesente , nullo sciente , nullo audiente , nullo vidente , clam perpetratur . and of the same minde is britton . cap. . as also fleta , lib. . cap. . yet fleta saith also , that it was not murder , except it were proued the partie slaine were english , and no straunger . but as stawnf . saith , pl. cor . lib. . cap. . the lawe in this point is altered , by the statute , anno . ed. . cap. . and murder is now otherwise to be defined . when a man vpon prepensed malice killeth another , whether secrotly or openly , it maketh no mater : or be he an english man , or a forainer liuing vnder the kings protection . and prepensed malice is here either expresse or implyed : expresse , when it may be euidently proued , that there was formerly some euill will implyed : when one killeth another sodainly , hauing nothing to defend himselfe : as going ouer a style , or such like . crompton . iustice of peace , in the chapter of murder . fol. . b. see m. skene de verbor . signif . verbo , murdrum . this by the latine interpretour of the graund custumarie of normandy , is called multrum . cap. . see were . muster , commeth of the french ( moustre . i. specimen , spectamen , exemplum , ) as , feire moustre generale de toute son armee , is as much as , lustrare exercitum . the signification is plaine . mustred of record . anno . h. . cap. . seemeth to be dare nomen , or to bee inrolled in the number of the kings souldiours . master of the kings musters . anno . . ed. . cap. . see master . muster master general . anno . . eliz. ca. . see master of the kings musters . n naam ( namium ) seemeth to come from the dutch word ( nemmen . i. capio ) it signifieth in our common law , the taking or apprehending of another mans moueable goods : and is either lawfull or vnlawfull . lawfull naam , is nothing els but a reasonable distresse , proportionable to the valew of the thing distreined for . and this naam was aunciently called either vif or mort , quicke or dead , accordingly as it was made of dead or quicke chatels . lawfull naam is so , either by the common law , or by a mans perticular fact : by the common law , as when one taketh another mans beasts dammage seisant in his grounds : by a mans particular fact , as by reason of some contract made , that for default of payment of an annuity agreed vpon , it shall be lawfull to distreine in such or such lands , &c. horns mirrour of iustices . lib. . ca. de vec de naam . where you may read of other circumstances required in lawfull naam : viz : of what thing , or of what things first , in what maner , on what daies , and at what houres it ought to be made ; with other points worth the reading , for the vnderstanding of our law antiquities . see withernam . nasse . anno . . h. . ca. . seemeth to be the proper name of orford hauen . whether it be so termed of the boates or water vessels that lye there or not , let the reader iudge . but ( nasselle ) is in french a kinde of small boat . natiuo habendo , is a writ that lyeth to the shyreeue for a lord , whose vilein claimed as his inheritance , is runne from him , for the apprehending and restoring of him to his lord againe . register orig . fol. . fitzh . nat . br . fol. . see libertate probanda . naturalization . see denizen . ne admittas , is a writ that lyeth for the plaintife in a quare impedit , or him that hath an action of darrein presentment depending in the common bench , and feareth that the bishop will admit the clerke of the defendant , during the suite betweene them . and this writ must be sued within sixe monethes after the avoydance . because after the sixe moneths the bishop may present by lapse . register orig . fol. . fitzh . nat . br . fol. . where see the rest . negatiue pregnant ( negatiua praegnans ) is a negatiue implying also an affirmatiue . as is a man being impleaded , to haued one a thing vpon such a day , or in such a place , denyeth that he did it modo & forma declarata : which implyeth neuer the lesse , that in some sort he did it . or if a man be said to haue alienated land , &c. in fee , he denying that he hath alienated in fee , seemeth to confesse that he hath alienated in some other sort . dyer . fol. . nu . . see brooke hoc titulo and kitchin , fol. . and see the new exposition of lawe terms . and read also in some ciuilians , of affirmatiua praegnans , and that is , quae habet in se inclusiuam negatiuam . et hoc importare videntur dictiones ( solùm & tantùm , quae implicant negatiuam ) pacianus . de probationibus . lib. . ca. . nu . . fol. . neif ( natiua ) commeth of the french ( naif . i. naturalis , vel nativus ) it signifieth in our common law , a bond woman , anno . ed. . ca. . the reason is , because women become bond rather natiuitate , than by any other means . ne in iuste vexes , is a writ that lyeth for a tenent , which is distrained by his lord , for other seruices than he ought to make , and is a prohibition to the lord in it selfe , commaunding him not to distreine . the especial vse of it is , where the tenent hath formerly preiudiced himselfe by performing more services , or paying more rent without constraint , than he needed . for in this case , by reason of the lords seisin , he cannot avoide him in avowry : and therefore he is driuen to this writ as his next remedie , register orig . fol. . fitzh . nat . br . fol . ne vicecomes colore mandat● regis quenquam amoueat à possessione ecclesiae minus iustè . register orig . fol. . nient comprise , is an exception taken to a petition as vniust , bicause , the thing desired , is not conteined or comprehended in that act or deede , wherevpon the petition is grounded . for example , one desireth of the court , to be put in possession of a house formerly among other lands &c. adiudged vnto him . the adverse party pleadeth , that his petitiō is not to be granted , because thogh he had a iudgement for certaine lands and houses : yet the house into the possession wherof he desireth to be put , is not conteined among those for the which he had iudgement . see the newe booke of entries . titulo , nient comprise . this seemeth to be especially to hinder execution . nifle , anno . ed. . cap. . nihil . anno . . r. . stat . pri . cap. . is a word set vpon a debt illeuiable , by the foreine apposer in the exchequer . nohil dicit , is a fayling to put in answer to the plee of the plaintiffe by the day assigned , which if a man do commit , iudgement passeth against him , as saying nothing why it should not . nisi prius , is a writ iudiciall , which lyeth in case , where the enquest is paneled , and returned before the iustices of the banke , the one partie or the other making petition , to haue this writ for the case of the contrie . it is directed to the shyreeue , commaunding that hee cause the men impaneled to come before the iustices in the same countie , for the determination of the cause there , except it be so difficult , that it need great deliberation . in which case it is sent againe to the bank , v. anno . ed. . cap. . the forme of the writ , see in old . nat . br . fol. . and in the regist . indic . fol. . & . & . see the new booke of entries , verbo , nisi prius . and it is called ( nisi prius ) of these words comprised in the same , whereby the shyreeue is willed to bring to westminst . the men impaneled at a certaine day , or before the iustices of the next assises : nisi die lunae apud talem locum prius venerint , &c. whereby it appeareth , that iustices of assises , and iustices of ( nisi prius ) are differing . and iustices of ( nisi prius ) must be one of them , before whom the cause is depending in the bench , with some other good man of the countie associated vnto him . fitz. nat . br . fol. . e. which he taketh from the statute of yorke . ann . . ed. . see westm . . cap. . anno . ed. prim . & anno . eiusdem . cap. . & anno . ed. . cap. . & anno . eiusdem , cap. . & anno . eiusdem cap. . & anno . rich. . cap. . & anno . eliz. cap. . nobility ( nobilitas ) in england compriseth all dignities aboue a knight . so that a baron is the lowest degree thereof . smith de repub. anglor . lib. prim . cap. . bartolus in his tractate de nobilitate , which he compiled vpon the lawe , si vt proponis c. de dignitatibus , libro . . rehearseth foure opinions de nobilitate , but reiecteth them , and himselfe defineth it thus : nobilitas est qualitas illata per principatum tenentem , qua quis vltra honestos plebeios acceptus ostenditur . but this definition is too large for vs , except we will accompt knights and banerets inter plebem , which in mine opinion were too harsh . for equites among the romanes , were in a middle ranke inter senatores & plebem . nocumento . see nusance . nomination ( nominatio ) is vsed by the canonists , and common lawyers , for a power that a man by vertue of a maner or otherwise , hath to appoint a clerke to a patron of a benefice , by him to be presented to the ordinarie . new termes of the lawe . non-abilitie , is an exception taken against the plaintiffe or demandant vpon some cause , why he cannot commence any suite in lawe , as a praemunire , outlawrie , villenage , excommunication : or because he is a stranger borne . the ciuilians say , that such a man hath not personam standi in iudicio . see broke , hoc titulo . see fitzh . nat . br . fol. . a. fol. . d. fol. . c. the new expositour of lawe termes reckoneth sixe causes of non-ability : as if he be an outlawe , a stranger borne , condemned in a premunire , professed in religion , excommunicate , or a villein . howbeit the second cause holdeth onely in actions reall or mixt , and not in personall , except he be a straunger and an enemie . non admittas . see ne admittas . non-age , is all the time of a mans age vnder one and twenty yeares in some cases , or fourteen in some , as mariage . see broke , titulo , age. see age. non capiendo clericum . see clerico non capiendo . non clayme , cromptons iurisd . fol. . seemeth to be an exception against a man that claimeth not within the time limited by lawe , as within the yeare and day , in case where a man ought to make continuall claime , or within fiue yeares after a fine leuyed . v. coke . lib. . in prooemio . see continuall clayme . non compos mentis , is of foure sortes : first , he that is an idiot borne : next , he that by accident afterward wholy leeseth his wits : thirdly , a lunaticke , that hath somtime his vnderstanding , and sometime not : lastly , hee which by his own act depriueth himselfe of his right mind for a time , as a drunkard , coke lib. . fol. . b. non distringendo , is a writ , comprising vnder it diuers particulars , according to diuers cases : all which you may see in the table of the register original , verbo , non distringendo . non est culpabilis , is the generall answer to an action of trespasse , whereby the defendant doth absolutely deny the fact imputed vnto him by the plaintiffe , whereas in other especiall answers , the defendaunt graunteth the fact to be done , and alledgeth some reason in his defence , why he lawfully might doe it . and therefore whereas the rhetoricians , comprise all the substance of their discourses , vnder three questions , an sit , quid sit , quale sit , this aunswere falleth vnder the first of the three : all other answers are vnder one of the other two . and as this is the generall aunswer in an action of trespasse , that is , an action criminall ciuily prosecuted : so is it also in all actions criminally followed , either at the suite of the king or other , wherein the defendant denieth the crime obiected vnto him . see the new booke of entries . titulo , non culpabilis , and stawnf . pl. cor . lib. . cap. . non est factum , is an aunswer to a declaration , whereby a man denyeth that to be his deed , whereupon he is impleaded . broke , hoc titulo . non implacitando aliquem de libero tenemento fine breui , is a writ to inhibit bayliffes , &c. from distraining any man without the kings writ , touching his free hould . register , fol. . b. non intromittendo quando breue praecipe in capite subdolè impetratur , is a writ directed to iustices of the bench or in eyre , willing them not to giue one hearing , that hath vnder the colour of intitling the king to land , &c. as houlding of him in capite , deceitfully obteined the writ called : praecipe in capite . but to put him to his writ of right , if he thinke good to vse it . register orig . fo . . b. non mercandizando victualia , is a writ directed to the iustic̄es of assise , commaunding them to inquire whether the officers of such a towne , doe sell victuals in grosse or by retaile , during their office , contrary to the statute , and to punish them , if they finde it true . register , fol. . non molestando , is a writ that lyeth for him , which is molested contrary to the kings protection graunted him . register fol. . non omittas , is a writ lying where the shyreeue deliuereth a former writ to a bayliffe of a fraunchis , within the which the party , on whom it is to be serued , dwelleth , & the bayliffe neglecteth to serue it : for in this case , the shyreeue returning , that he deliuered it to the bayliffe , this shal be directed to the shyreeue , charging him himselfe to execute the kings commaundement . old. nat . br . fol. . of this the reg. orig . hath three sorts . fol. . b. & . and the reg. iudiciall one , fol. . & . non ponendo in assisis & iuratis , is a writ founded vpon the stat . westm . . ca. . and the stat : articuli super chartas . ca. . which is graunted vpon diuers causes to men , for the freeing them from assises and iuries . see fitzh . nat . br . fol. . see the register , fol. . . . . non procedendo ad assisam rege inconsulto , is a writ to stop the triall of a cause appertaining vnto one , that is in the kings seruice , &c. vntill the kings pleasure be farder knowne . reg. fol. . a. non residentia pro clericis regis , is a writ directed to the ordinary , charging him not to molest a clerk imployed in the kings seruice , by reason of his non residence . register orig . fol. . b. non-suite , is a renuntiation of the suite by the plaintife or demaundant , when the mater is so farre proceeded in , as the iury is ready at the barre , to deliuer their verdict . anno . h. . ca. . see the new booke of entries , verbo non-suite . the ciuilians terme it litis renunciationem . non soluendo pecuniam ad quam clericus mulctatur pro non residentia , is a writ prohibiting an ordinary to take a pecuniary mulct , imposed vpon a clerk of the kings for non-residence . regist . orig . fol. . non tenure , is an exception to a coumpt , by saying that he houldeth not the land specified in the coumpt , or at the least , some parte of it . anno . ed. . stat . . ca. . west parte . . simbol . titulo . fines . sect . . maketh mention of non-tenure generall , and non-tenure speciall . see the new booke of entries , verbo , non-tenure . where it is said , that especiall non-tenure is an exception , alledging that he was not tenent the day whereon the writ was purchased . non-tenure generall is then by likelyhood , where one denyeth himselfe euer to haue bene tenent to the land in question . non sum informatus . see informatus non sum . non sane memorie ( non sane memoriae ) is an exception taken to any act declared by the plaintife or demaundant to be done by another , wherupon he groundeth his plaint or demaund . and the contents of this exceptiō be , that the party that did that act ( being himselfe or any other ) was not well in his wits , or madde , when he did it . see the new booke of entries , titulo non sane memory , and dum non fuit compos mentis . see also supra non compos mentis . non terme ( non terminus ) is the time of vacation between terme and terme . it was wont to bee called the times or dayes of the kings peace , lamb. archaiono . fol . and what these were in the time of king edward the confessour , see there . this time was called ( iusticium ) or ( feriae ) among the romanes , or ( dies nefasti ) ferias appellari notum est tempus illud , quod forensibus negotus & iure dicendo vacabat . earum autem aliae solennes erant , aliae repentinae . brisson . de verb. signif . lib. . vide wesenbec : paratit . de ferits . num . . note of a fine , ( nota finis ) is a briefe of a fine made by the chirographer , before it be engrossed . the forme whereof see in west . part . . symbol , titulo . fines . sect . . novell assignement ( noua assignatio ) is an assignement of time , or place , or such like , otherwise then as before it was assigned . in brocke you may find these wordes in effect : titulo , deputie . num . . see novell assignement of trespasse in a new place after barre pleaded . broke . titulo , trespasse . . and , novel assignement in a writ de e●ectione custodiae . titulo , eiectione custodiae . num . . see assignement . nude mater . see mater . nunne ( nonna ) is the french word ( nonnain ) or ( nonne ) something altered , which signifieth a holy or consecrated virgin , or a woman that hath by vowe bound her selfe to a single and chast life , in some place and company of other women , separated from the world , and addicted to an especiall seruice of god , by prayer , fasting , and such like holy exercises . if we wold know whence this word came into fraunce , s. hierome maketh it an egyptian word , as hospinian recordeth of him , in his booke de origine & progressumonachatus . fol. . nuper obtit , is a writ that lyeth for a coheire being deforced by her coheire of lands or tenements , whereof the graundfather , father , vncle , or brother to them both , or any other their common auncesters , dyed seised of an estate in fee simple . see the forme of the writ , origin . regist . fol. . &c. fitz. nat . br . fol. . if the auncestour dyed seised in fee tayle , then the coheire deforced shall haue a formdon . idem . ibid. nusance ( nocumentum ) commeth of the french ( nuire . i. nocere . ) it signifieth in our common lawe , not onely a thing done , whereby another man is annoyed in his free lands or tenements , but especially the assise or writ lying for the same . fitz. nat . br . fol. . and this writ ( de nocumento ) or of nusance is either simply de nocumento , or de paruo nocumento ; and then it is vicountiel . old . nat . br . f. . & . & fitzh . nat . br . vbi supra . & fol. . britton calleth it nosance . whome also reade . ca. . & . m. manwood parte of his forest lawes . ca. . maketh three sorts of nusance in the forest , the first is nocumentum commune , the second nocumentum speciale , the third nocumentum generale . which reade with the rest of that whole chapter . see the register originall , fol. . & . nutmegs ( nux myristica vel nux muscata ) is a spice well knowne to all . it groweth of a tree like a peach tree , and is inclosed in two huskes , whereof the inner huske is that spice which we call mace . of this who will , may reade more in gerards herball , lib. . ca. . it is mentioned among spices that are to be garbled . anno . iaco. ca. . o obedientiae , was a rent , as appeareth by roger hoveden parte poster : suorum annalium , fol. . in these words : vt ergo eis , sc : regularibus , adimatur oportunitas evagandi , prohibe 〈…〉 , ne reditus , quos obedientias vocant , ad firmam teneant , &c. obedientia in the canon lawe is vsed for an office or the administration of an office , ca. cùm ad monasterium . . extra de statu monacho : & cano . regula . and therevpon the word ( obedientiales ) is vsed in the provinciall constitutions for those which haue the execution of any office vnder their superiors . cap. pri . de statu . regula . for thus saith lyndwood in his glosse vpon that word : hii sunt qui sub obedientia suorum praelatorum sunt , & habent certa officia administranda interiùs vel exterius . it may be that some of these offices called obedienti● consisted in the collection of rents or pensions : and that therefore those rents were by a metonymie called obedientiae , quia colligebantur ab obedientialibus . oblations ( oblationes ) are thus defined in the canon lawe . oblationes dicuntur , quaecunque a pi●s fidelibusque christianis offeruntur deo & ecclesiae , siue res soli , siue mobiles sint . nec refert an legentur testamento , an aliter donentur , cap. clerici . . quaest . . reade more of these in duarenus . de sacr . eccl . minister . ac benefi . cap. tertio . obligation ( obligatio ) and bill be all one , sauing that when it is in english , it is commonly called a bill , and when it is in latine , an obligation . west parte . symbol . lib. . sect . . true it is that a bill is obligatorie : but we commonly call that an obligation , which hath a condition annexed . the former author in the same place saith thus farder . an obligation is a deede , whereby the obligour doth knowledge himselfe to owe vnto the obligee , a certaine summe of money or other thing . in which , besides the parties names , are to be considered the thing due , and the time , place and maner of payment , or deliuerie . obligations be either by mater in deede , or of record . an obligation by mater in deede is euery obligation not acknowledged & made in some court of record . hitherto m. west . occupauit , is a writ that lieth for him , which is eiected out of his land or tenement in time of warre : as a writ of novel disseisin lieth for one eiected in time of peace . ingham § . bref de novel disseisin . octo tales . see tales : see brooke tit . octo tales . odio & atia , anno . ed. . ca. : is a writ sent to the vndershyreeue , to inquire whither a man being committed to prison vpon suspition of murder , be committed vpon malice or euill will , or vpon iust suspition . register originall , fol. . b. see bracton li. . parte . ca. . office ( officium ) doth signifie not onely that function , by vertue whereof a man hath some imploiment in the affaires of another , as of the king or other common person ; but also an inquisition made to the kings vse of any thing by vertue of his office who inquireth . and therefore wee oftentimes reade of an office found , which is nothing but such a thing found by inquisition made ex officio . in this signification it is vsed anno . h. . cap. . and in stawnfords praerog . fol. . & . where to trauers an office , is to trauers the inquisition taken of office . and in kitchin fol. . to returne an office , is to returne that which is found by vertue of the office , see also the newe booke of entries , verbo office pur le roy. and this is by a metonymie of the effect : and there be two sorts of offices in this signification , issuing out the exchequer by commission viz. an office to intitle the king in the thing inquired of , and an office of instruction . which reade in sir edw. cokes reports , vol. . pages case . fol. . a. b. office in fee , is that which a man hath to himselfe and his heires , anno . ed. . ca. . kitchin fol. . see clerk. official ( officialis ) is a word very diversly vsed . for by sundry ciuilians of other countries , that write in these daies , it appeareth to be applyed in many places , to such as haue the sway of temporall iustice . aegidius bossius in pract . crim . tit . de officialibus corruptis , &c. but by the auncienter ciuile lawe , it signifieth him , that is the minister or appparitor of a magistrate or iudge . l. . § . si quis vltro . Π. de quaestio . & co. de filiis officialium , &c. li. . in the canon lawe , it is especially taken for him , to whome any bishop doth generally commit the charge of his spirituall iurisdiction . and in this sence one in euery dioces is ( officialis principalis ) whome the statutes and lawes of this kingdome call chanceler . anno . h. . cap. . the rest , if there be more , are by the canō law called officiales foranei . glos : in clem . . de rescriptis , but with vs termed cōmissaries ( commissarii ) as in the statute of h. . or some times ( commissarii foranei . ) the difference of these . powers you may reade in lyndwood , titulo de sequestra posses . ca. . verbo . officialis . but this word ( officiall ) in our statutes and common lawe signifieth him , whom the archdeacon substituteth in the executing of his iurisdiction . as appeareth by the statute aboue mentioned and many other places . officiariis non faciendis vel amovendis , is a writ directed to the magistrates of a corporatiō , willing them not to make such a man an officer , and to put him out of the office he hath , vntill enquirie be made of his maners , according to an inquisition formerly ordeined . register originall , fol. . b. onerando pro rata portionis , is a writ that lieth for a ioint tenent , or tenent in common , that is distreined for more rent , then the proportion of his land cōmeth vnto . reg orig . f. . a. open lawe ( lex manifesta ; lex apparens ) is making of lawe . which by magna charta ca. . bayliffes may not put men vnto vpon their owne bare assertions , except they haue witnesses to proue their imputation . orchel . anno . . r. . ca. : orchall anno . . h. . ca. . & . anno . . & . ed. . ca. . seemeth to be all one with cork . ordinance of the forest ( ordinatio forestae ) is a statute made touching forest causes in the . yeare of edward . . see assise . ordinarie ( ordinarius ) though in the ciuil lawe , whence the word is taken , it doth signifie any iudge that hath authoritie to take knowledge of causes in his owne right , as he is a magistrate , and not by deputation : yet in our common lawe , it is most commonly , and for ought i remember , alway taken for him , that hath ordinarie iurisdiction in causes ecclesiasticall . see brooke hoc titulo . lindwood in cap. exterior . titulo de constitutionibus . verbo ordinarii , saith quòd ordinarius habet locum principaliter in episcopo , & aliis superioribus , qui soli sunt vniuersales in suis iurisdictionibus , sed sunt sub eo alii ordinarii , hii viz. quibus competit iurisdictio ordinaria de iure , privilegio , vel consuetudine , &c. v. c. ordinatione contra seruientes , is a writ that lieth against a servant for leauing his master against the statute : register originall , fol. . ordael ( ordalium ) is a saxon word , signifiing as much as iudgement , in some mens opinions compounded of two saxon words ( or ) a priuatiue , as ( α ) in greeke , and ( dael . i. pars ) it signifieth as much as expers : but it is artificially vsed for a kind of purgation practized in auncient times : whereby the party purged , was iudged expers criminis , called in the canon lawe purgatio vulgaris , and vtterly condemned . there were of this two sorts , one by fire , another by water . of these see m. lamberd in his explication of saxon words . verbo ordalium , where he expresseth it at large , with such superstitions as were vsed in it . of this you may likewise read holinshed in his description of britanie fol. . and also m. manwood , parte pri . of his forest lawes , pag. . but of all the rest , hotoman especially , disput . de feud . ca. . where of fiue kinde of proofes , which he calleth feudales probationes , he maketh this the fourth , calling it explorationem , & huius furiosae probationis . genera fuisse animadvertit , per flammam , per aquam , per ferrum candens , per aquam vel gelidam vel feruentem , per sortes , & per corpus domini , of all which he alledgeth seuerall examples out of historie , very worthie the reading . see m. skene also de verbor . significatione . verbo ( machamiū ) this seemeth to haue bene in vse here with vs in henry the seconds dayes , as appeareth by glanvile . lib. . cap. . & . reade also of this in m. verstegans restitution of decayed intelligence . cap. . pag. . & seqq . orfgild , aliâs , cheapegild , is a restitution made by the hundred or countie , of any wrong done by one that was in plegio . lamberd . archaion . pag. . & . orgeis , anno , . ed. . stat . . cap. . is the greatest sort of north sea-fish , now adaies called organ ling. oredelfe , is a liberty whereby a man claimeth the ore found in his soyle . new exposition of termes . ortelli , is a word vsed in the booke termed ( pupilla oculi ) in the chapter containing the charter of the forest . parte . cap. . and signifieth the clawes of a dogges foote , being taken from the french , orteils des pieds . i. digiti pedum , the toes . osmonds , anno . henr. . cap. . oath of the king , ( iuramentum regis ) is that which the king taketh at his coronation , which in bracton is set downe in these words . debet rex in coronatione sua , in nomine iesu christi praestito sacramento haec tria promittere populo sibi subdito : inprimis se esse praecepturum & pro viribus opem impensurum vt ecclesiae dei & omni populo christiano vera pax omni suo tempore observetur . secundò , vt rapacitates & omnes iniquitates omnibus gradibus interdicat : . vt in omnibus iudieiis aequitatem praecipiat & misericordiam , vt indulgeat et suā misericordiā clemens & misericors deus , & vt per iustitiā suam firma gaudeant pace vniuersi . and in the old abridgement of statutes set out in h. . daies , i finde it thus described . this is the oath that the king shall sweare at his coronation : that he shall keepe and maintaine the right and the liberties of the holy church , of old time graunted by the righteous christian kings of england , and that he shall keepe all the lands , honours , and dignities righteous and free of the crowne of england in all maner whole , without any maner of minishment , and the rights of the crowne hurt , decayed , or lost , to his power shall call againe into the auncient estate , and that he shall keepe the peace of the holy church and of the clergy , and of the people with good accord : and that he shall doe in all his iudgements equitie and right iustice with discretion and mercie : and that he shall graunt to hold the lawes & customes of the realme , and to his power keepe them , and affirme them , which the folke and people haue made and chosen : and the euill lawes and customes wholly to put out : and stedfast and stable peace to the people of this realme keepe and cause to be kept to his power : and that he shall graunt no charter , but where he may doe it by his oath . all this i finde in the foresaide booke , titulo . sacramentum regis . and charter of pardon . quinto . oth of the kings iustices is , that they well and truly shall serue the king , and that they shall not assent to things , that may turne to his dammage or disinheritance . nor that they shall take no fee nor liuerie of none but the king . nor that they shall take gift nor reward of none that hath adoe before them , except it be meate and drinke of smal value , as long as the plee is hanging before them , nor after for the cause . nor that they shall giue councell to none in mater that may touch the king , vpon paine to be at the kings will , body and goods . and that they shall doe right to euery person , notwithstanding the kings leters , &c. anno . ed. . statut . . which the old abridgement maketh to be anno . eiusdem statuto per se . otho , was a deacon cardinall of s. nichens in carcere tulliam , and legate for the pope heere in england , anno . h. . whose constitutions we haue at this day : stowes an. pa. . & see the first constitution of the said legat. othobonus was a deacon cardinall of s. adrian , and the popes legate heere in england anno . h. . as appeareth by the award made betweene the said king and his commons , at kenelworth . his constitutions we haue at this day in vse . ouch , anno . h. . ca. . ouster le main ( amouere manum ) word for word , signifieth to take off the hand , though in true french , it should be ( oster la main ) it signifieth in the common law , a iudgement giuen for him that tendeth a trauers , or sieweth a monstrance de droit , or petition . for when it appeareth vpon the mater discussed , that the king hath noe right nor title to the thing he seised , then iudgement shal be giuen in the chauncery , that the kings hands be amoued , and thereupon amoueas manum shal be awarded to the escheatour : which is as much , as if the iudgement were giuen , that he should haue againe his land . v. stawn . praerog . ca. . see anno . ed. . stat . . ca. . it is also taken for the writ graunted vpon this petition . fitzh . nat . br . fol. . c. it is written oter le maine , anno . hen. . ca. . ouster le mer ( vltra mare ) commeth of the french ( oultre . i. vltra ) and ( le mer. i. mare ) and it is a cause of excuse or essoine , if a man appeare not in court vpon summons . see essoin . outfangthef , aliâs vtfangthef , is thus defined by bracton li. . tra . . ca. . vtfangthef dicitur latro extraneus veniens aliunde de terra aliena , & qui captus fuit in terra ipsius , quitales habet libertates , but see britton otherwise . fol. : b : it is compounded of three saxon words ( out . i. extra ) ( fang . i. capio vel captus ) and ( thef . i. fur ) it is vsed in the common law , for a liberty or priuiledge , whereby a lord is inhabled to call any man dwelling within his owne fee , and taken for felony in any other place , and to iudge him in his owne court . rastals expos . of words . owelty of seruices , is an equality when the tenent parauaile oweth as much to the mesn , as the mesn doth to the lord paramont : fitzh . nat . br . fol. a. b. outlawry ( vtlagaria ) is the losse or depriuation of the benefit belonging to a subiect : that is , of the kings protection and the realme : bracton : li. . tract . . ca. . num . pri . & nu . . forisfacit vtlagatus omnia quae pacis sunt : quia a tempore quo vtlagatus est , caput gerit lupinum , ita quòd ab omnibus interfici possit , & impunè : maxime si se defenderit , vel fugerit , ita quòd difficilis sit eius captio . & , nu . . si autem non fugerit , nec se defenderit cùm captus fuerit : extunc erit in manu domini regis mors , & vita . & qui taliter captum interfecerit , respondebit pro co sicut pro alio , v. c. outeparters anno . . h. . ca. . seemeth to be a kind of theeues in ridesdall , that ride abroad at their best advantage , to fetch in such catell or other things , as they could light on without that liberty : some are of opinion that those which in the forenamed statute , are termed out-patters , are at this day called out-putters , and are such as set matches for the robbing of any man or house : as by discouering which way he rideth or goeth , or where the house is weakest & fittest to be entred . see intakers . owtryders , seeme to be none other but bayliffe errants , employed by the shyreeues or their fermers , to ride to the fardest places of their counties or hundreds , with the more speede to summon to their county or hundred courts , such as they thought good to worke vpon . anno . ed. . stat . . ca. . oxgang of land ( bouata terrae ) sixe oxgangs of land , seeme to be so much as sixe oxen will plough . crompton . iurisd . fol. . but an oxegang seemeth properly to be spoken of such land as lyeth in gainour , old nat . br . fol. . m. skene de verbor . significat . verbo bovata terrae , saith , that an oxen-gate of land should alway conteine . acres , and that . oxen-gates extendeth to a pound land of old extent . see librata terrae . oyer and terminer , ( audiendo & terminando ) in true french ( ovir & terminer ) is , in the intendment of our lawe , a commission especially graunted to certaine men , for the hearing and determining of one or more causes . this was wont to be in vse vpon some sodaine outrage or insurrection in any place . cromptons iurisd . fol. . & . see the statute of westm . . cap. anno , . ed. . who might graunt this commission . and see fitzh . nat . br . fol. . for the forme and occasion of the writ , as also to whom it is to bee graunted , and whom not . see broke , titulo , oyer & determiner . oyer de record , ( audire recordum ) is a petition made in court , that the iudges , for beter proofes sake , will be pleased to heare or looke vpon any record . p packing whites . anno , . r. . cap. . pain fort & dure ( poena fortis & dura ) is in true french ( peine fort & dure . ) it signifieth in our common lawe , an especiall punishment for those , that being arraigned of felonie , refuse to put themselues vpon the ordinarie triall of god and the cuntrey , and thereby are mute , or as mute in interpretation of law . this ( as stawnf . thinketh , pl. cor . lib. . cap. . ) is founded vpon the statute of westm . prim . cap . anno . . ed. prim . his reason is , because bracton , who writ before that parlament , maketh no mention of it : and britton writing after that time , toucheth it in his . chapter ; fol. . viz. in words to this effect : if they will not acquite themselues , let them be put to their penance vntill such time as they do desire triall : and let the penance bee such : viz. let them be bare legged , without girdle , and without hatte or cappe , in their coate onely , and lye in prison vpon the naked earth day and night . and let them eate no bread , but of barley and branne , nor drink any other then water , and that vpon that day when they eate not . and let them be chained . stawnford in his said . chapter of his second booke , expoundeth it more plainely and particularly in this sort . and note , that this strong and hard paine shall be such : sc . he shall be sent backe to the prison whence he came , and layed in some lowe darke house , where he shall lye naked vpon the earth without any litter , rushes , or other clothing , and without any raiment about him , but onely something to couer his priuie members . and he shall lye vpon his backe with his head couered and his feete . and one arme shall bee drawne to one quarter of the house with a cord , and the other arme to another quarter : and in the same maner let it be done with his legges : and let there be layed vpon his body iron and stone , so much as he may beare or more : and the next day following , he shall haue three morsels of barley bread without drinke : and the second day , he shall haue drinke three times : and as much at each time , as he can drinke , of the water next vnto the prison doore , except it be running water , without any bread . and this shall be his diet vntill he dye . palatine . see county palatine . see cassan . de consuetud . burg. pag. . palingman , anno . . henr. . cap. . panell ( panellum ) commeth of the french ( panne . i. pellis , or paneau ) a peece or pane , as wee call it in english . it signifieth in our common lawe , a shedule or rolle , containing the names of such iurours , as the shyreeue prouideth to passe vpon any triall . register orig . fol. . a. kitthin , fol. . see broke , hoc titulo . and thereupon the empaneling of a iurie , is nothing but the entring of them into the shyreeues rolle or booke . pannage ( pannagium ) is a tolle or contribution . fitz. nat . br . fol. . d. see pawnage . paramounte , aliâs peremounte , commeth of these two french words ( par . i. per ) and ( monter . i. ascendere ) it signifieth in our law , the highest lord of the fee : for there may be a tenent to a lord , that houldeth ouer of another lord. and the former of those is called lord mesn , the second lord paramount . and a lord paramount ( as it seemeth by kitchin , fol. ) consisteth only in comparison : as one man may be great being compared with a lesser , and litle being compared with a greater : and as genus , among the logicians , may be in diuers respects both genus , and species . fitzh . nat . br . fol. . m. so that none seemeth simply to be lord paramount but only the king , as genus summum is simply genus . for the king is patron paramount to all the benefices in england , doctor and student : ca. . see parauaile , maner . and fee. parauaile , aliâs perauaile , is compounded of two french words ( par . i. per ) and ( aualler . i. dimittere , demittere ) it signifieth in our common law , the lowest tenent , or him that is tenent to one , who houldeth his fee ouer of another , so is it vsed . pl. cor . fol. . and fitzh . nat . br . fol. . m. see paramounte . see mesn . parcell makers , are two officers in the eschequer , that make the parcels of the escheators accoumpts , wherein they charge them with euery thing they haue leuyed for the kings vse , within the time of their office , & deliuer the same to one of the auditors of the court , to make an accompt for the escheatour thereof . parceners . see coparceners . parcinarie ( participatio ) commeth of the french ( partir . i. diuiduum facere . it signifieth in our common law , a houlding or occupying of land by more pro indiviso , or by ioynt tenents , otherwise called coparceners , of the french ( parsonnier . i. partiarius , particeps . ) for if they refuse to diuide their common inheritance and chuse rather to hold it ioyntly , they are said to hold in parcinarie . litleton , fol. . & . this by the feudists and lombards is termed ( adaequatio , vel paragium . ) and among the auncient romanes particulones , sic enim authore nonio , a veteribus cohaeredes inter se dicebantur , quòd partes invicem facerent . spigelius . pardon ( perdouatio ) is a french word , signifiing as much as pax , venia , gratia . it is vsed most notoriously in our common lawe , for the remitting or forgiuing of a felonious or other offence committed against the king . this pardon is two-fold : one ex gratia regis , the other , per cours del ley , by course of law . stawns . pl. cor . fol. . pardon ex gratia regis , is that , which the king , in some speciall regard of the person or other circumstance , sheweth or affoordeth vpon his absolute prerogatiue or power . pardon by course of lawe , is that , which the lawe in equitie affoordeth , for a light offence , as homicide casuall , when one killeth a man hauing no such meaning . west . parte . symbol . titulo , inditements . sect . . of this see the new booke of entries , verbo , perdon . pardoners , anno . h. . c. . were certaine fellowes that caried about the popes indulgences , and sold them to such as would buy them , against whom luther , by sleydans report , in censed the people of germany in his time , exhorting them , ne merces tam viles tanti emerent . parke ( parcus ) commeth of the french ( parquer . i. vallo , vel fossa circundare . ) it signifieth with vs , a peece of grounde inclosed and stored with wild beastes of chase . which a man may haue by prescription or the kings graunt . cromptons iurisd . fol. . m. manwood parte pri . of his forest lawes . pag. . defineth it thus : a parke is a place of priuiledge for wilde beastes of venerie , and also for other wild beasts , that are beasts of the forest , and of the chase , tam syluestres , quam campestres . and all those wild beastes are to haue a firme peace and protectiō there . so that no man may hurt or chase them within the park , without licence of the owner of the same . who also fol. . saith thus : a parke is of another nature , then either a chase , or a warren is . for a parke must bee inclosed , and may not lye ope : for if it doe , that is a good cause of seisure of the same into the hands of the king , as a thing forfeited : as a free chase is , if it be enclosed . and moreouer , the owner cannot haue action against such as hunt in his park , if it lye open . see forest . see chase . see warren . this word parke , baldwinus deriueth a paradiso , eumque locum esse dicit , in quo varia animalia ad vsum voluptatis , aut venationis includuntur & possidentur , adempta naturali libertate . ad tit . de rerum divis . in institutionib . parco fracto , is a writ which lyeth against him , that violently breaketh a pound , and taketh out beasts thence , which , for some trespas done vpon another mans ground , are lawfully impounded . register originall fol. . fitzh . nat . br . fol. . parish ( parochia ) commeth of the greeke ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. accolarum conuentus , accolatus , sacra vicinia ) it is vsed in the cannon law , some time for a bishoprick . but in our common law , it signifieth the particular charge of a secular priest . for euery church is either cathedrall , couentuall , or parochiall . cathedrall is that , where there is a bishop seated , so called a cathedra : conuentuall consisteth of regular clerks , professing some order of religion , or of deane and chapter , or other colledge of spirituall men . parochiall is that , which is instituted for the saying of diuine seruice , and ministring the holy sacraments to the people dwelling within a certaine compas of ground neare vnto it . our realme was first diuided into parishes by honorius archb : of canterbury , in the yeare of our lord. . camden britan. pag. . of these parish churches i finde there were in england in the daies of h. . the number of . hotoman in his disputations de feudis . ca. . maketh mention of this word ( parochia ) out of pomponius laetus in these words . nam sic quoque pomponius laetus veterem consuetudinem fuisse scribit , eamque ab imperat 〈…〉 constantino repetitam , vt duc 〈…〉 praefectis , tribunis qui pro augend● imperio consenuerant , darentur agri , villaeque , vt necessaria suppet 〈…〉 , quoad viuerent , quas paroehias cabant . and a litle after : ver 〈…〉 inter feuda & parochias hoc 〈…〉 est , quod hae plerumque senibus 〈…〉 veteranis , plerisque emeritae 〈…〉 dabantur , qui cum de rep. bene meriti essent , publico beneficio reliquum vitae sustentabant : aut si quod bellum nasceretur , euocati non tam milites , quàm magistri militū viderentur . feuda vero plurimum i●●enibus robustis , & primo flore aetatis , qui militiae munus sustinere poterāt : imo verò & vt possēt & vt vellēt , &c. parlament ( parlamentum ) is a french word signifiing originally as much as ( collocutio ) or ( colloquium ) but by vse , it is also taken for those high courts of iustice throughout the kingdome of fraunce , where mens causes and differences are publikely determined without farder appeale . whereof there be seuen in number : as paris , tolouse , gresnoble in daulphene , aix in prouence , bordeaux , diion in bourgogine , and roan in normandy . vincentius lupanus de magistrat . franc. lib. . cap. parlamentum . num . . whereunto gerard de haillon addeth the eighth . viz. rhenes in brettagne . in england we vse it for the assembly of the king and the three estates of the realme , videlicet . the lords spirituall , the lords temporall , and commons , for the debating of maters touching the common wealth , and especially the making and correcting of lawes . which assembly or court is of all other the highest , and of greatest authoritie , as you may reade in sir thomas smith . de repub. anglo lib. . cap. . & . camd. britan. pag. . and cromptons iurisd . fol. pri . & seqq . the institution of this court polydor virgil , lib. . of his chronicles , referreth after a sort to henry the first : yet confessing that it was vsed before , though verie seldome . i find in the former prologue of the grande custumarie of normandie , that the normans vsed the same meanes in making their lawes . and i haue seene a monument of antiquite , shewing the maner of houlding this parlament in the time of king edward the sonne of king etheldred , which ( as my note saith , was deliuered by the discreeter sorte of the realme vnto william the conquerour , at his commaundement , & allowed by him . this writing beginneth thus . rex est caput , principium , & finis parlamenti , & ita non habet parem in suo gradu . et sic ex rege solo primus gradus est . secundus gradus est ex archiepiscopis , episcopis , abbatibus , prioribus per baroniā tenentibus . tertius gradus est , de procuratoribus cleri . quartus gradus est de comitibus , baronibus , & aliis magnatibus . quintus gradus est de militibus comitatuum . sextus gradus est de civibus & burgensibus : & ita est parlamentum ex sex gradibus . sed sciendum , licet aliquis dictorum quinque graduum post regem absens fuerit , dum tamen omnes praemoniti fuerint per rationabiles summonitiones , parlamentum nibilo minus censetur esse plenum . touching the great authoritie of this court , i finde in stowes annalls , pag. . that henry the sixth directing his priuie seale to richard earle of warwicke , thereby to discharge him of the captainship of cales , the earle refused to obey the priuie seale , and continued forth the said office , because he receiued it by parlament . but one example cannot make good a doctrine . and of these two one must needes be true , that either the king is aboue the parlament , that is , the positiue lawes of his kingdome , or els that he is not an absolute king . aristotle lib. . politico . cap. . and therefore though it be a mercifull policie , and also a politique mercie ( not alterable without great perill ) to make lawes by the consent of the whole realme , because so no one part shall haue cause to complaine of a partialitie : yet simply to binde the prince to or by these lawes , weare repugnant to the nature and constitution of an absolute monarchy . see bracton . lib. . tract . . ca. . nu . . and cassan de consuet : burg : pag. . and tiraquel . in his booke de nobilitate , cap. . pag. . nu . . see the statute anno . h. . cap. . in prooemio . and many excellent men more , that handle this point . that learned hotoman in his francogallia , doth vehemently oppugne this ground , as some other that write in corners : but he is so cleane overborne by the pois of reason , that not onely many meaner men for learning triumph ouer him in this case , but himselfe , as i haue credibly hard , vpon the sight of his fault , cried god and the world mercie for his offence , in writing that erroneous and seditious booke . the emperours of rome had their semestria consilia , & their praetorium or place of councell , builded by augustus in his palace , and therevpon called ( palatium ) afterward termed ( consistorium ) where they , as in their principall court , did both determine the greatest sort of their causes , and also made their constitutions . and heere had they assisting them many of the wisest of their empire ; whome augustus first called ( consiliarios , ) alexander severus afterward ( scriniorum principes ) others after that ( palatinos ) and then ( comites consistorianos ) and these men in this respect , were indued with great honour , and enioyed many priuiledges . yet were they but assistants to the emperour to aduise him , not chalenging any power ouer him , or equal with him . more touching the course and order of this parlament , see in cromptons iurisdict . fol. pri . & seqq . and vowell , aliâs hooker , in his booke purposely writen of this mater . see king. parole ( loquela ) is a french word , signifying as much as ( dictio , allocutio , sermo , vox ) it is vsed in kitchin , fol. . for a plee in court . it is also sometime ioyned with lease , as lease parol , that is lease per parole . a lease by word of mouth . parson ( persona ) commeth of the french ( personne ) . it peculiarly signisieth with vs , the rector of a church : the reason whereof seemeth to be , bicause he for his time representeth the church , and susteineth the person thereof , as well in siewing , as being siewed in any action touching the same . see fleta . lib. . ca. . parson impersonee ( persona impersonata ) is he that is in possession of a church , whether appropriated or not appropriated . for in the new booke of entries , verbo ayde in annuity , you haue these words . et praedictus a dicit , quod ipse est persona praedictae ecclesiae de s. impersonata in eadem ad praesentationem e. patronissae , &c. so i haue reason to thinke , that persona is the patrō or he that hath right to giue the benefice , by reason that before the lateran councell he had right to the tithes , in respect of his liberalitie vsed in the erection or endowment of the church , quasi sustineret personam ecclesiae . and he persona impersonata to whome the benefice is giuen in the patrons right . for i reade in the register iudiciall personam impersonatam , for the rector of a benefice presentatiue and not appropriated , fol. . b. and see dyer . fol. . nu . . where he saith that a deane and chapter be persons impersonees of a benefice appropriated vnto them . who also fol. . num . . plainly sheweth that persona impersonata is he that is inducted and in possession of a benefice . so that persona seemeth to be termed impersonata , onely in respect of the possession that he hath of the benefice or rectorie , be it appropriated or otherwise , by the act of another . and yet i haue talked with men of good opinion in the common lawe , that hold onely the proprietarie of a benefice to be the person personee . but if that weare true , he should rather be called person parsonnier . i. partiarius vel particeps fructuum , because the vicare hath some parte toward his paines in seruing the cure . for ( parsonnier ) in the french tongue . is ( partiarius ) or ( particeps ) partes finis nihil habuerunt , &c. is an exception taken against a fine levied . cookes reports lib. . the case of fines . fol. . a. b. parters of gold and siluer . see finours . partitione facienda , is a writ that lieth for those , which hould lands or tenements pro indiuiso , and would seuer to euery one his part , against him or them that refuse to ioyne in partition as coparceners and tenents in gauel kind , ould : nat . br . fol : . fitzh . nat . br . fol. . register orig . fol. . . and register iudiciall , fol. . and the new booke of entrise . verbo partition . part let , seemeth to be some part of a mans attire , as namely some loose collar of a dublet , to be set on or taken of by it selfe . without the bodies , as mens bands or womens neckirchiefs be , which are in some places , or at least haue beene within memory , called partlets . this word is reade in the statute , anno . h. . ca. . and seemeth to be a diminutine of the word ( part . ) paruo nocumen to , is a writ . see nusance . passage ( passagium ) is a french word , signifying transitum , transitionem , meatum . it signifieth in our common lawe , the hire that a man payeth for being transported ouer sea , anno . ed. . cap. . or ouer any riuer . westm . . cap. . anno . ed. pri . passagio , is a writ to the keepers of ports , to let a man passe ouer , that hath license of the king . register originall . fol. . b. . a. passeport , is compounded of two french words ( passer . i. perambulare , transire ) and ( port . i. portus ) it signifieth with vs , a license made by any that hath authoritie , for the safe passage of any man from one place to another . anno . ed. . ca. . pasuage , pasuagium . see pawnage . patent ( literae patentes ) is different from a writ , cromptons iurisd fol. . the coroner is made by writ and not by patent . see leters patents . see also literae patentes in the table of the register , where you shall finde the forme of diuers patents . patron ( patronus ) is vsed in the ciule lawe , for him that hath manumitted a seruant , and thereby is both iustly accompted his great benefactor , and challengeth certaine reverence and dutie of him during his life : see the title de iure patranatus : in the digest : with the feudists it is vsed pro authore feudi . hotom . verbo patronus , in his commentarie de verbis feudal . in the canon lawe , as also in the feuds , and our common lawe , it signifieth him that hath the gift of a benefice . and the reason is , because the gift of churches and benefices originally belonged vnto such good men , as either builded them , or els indowed them with some great part of the reuenew belonging vnto them . de iure patronatus in the decretals . such might well be called patrons , as builded the church , or inriched it : but these that now haue the gift of a benefice , are more commonly patronized by the church , though against her will , alway selling their presentations as deerely as they can : and therefore may be called patroni a patrocinando , as mons à mouendo . patronum faciunt dos , aedificatio , fundus , saith the old verse , of lay patrons one writeth thus . quod autem a supremis pontisicibus proditum est , ( ca. cùm dilectus , extra de iure patronatus ) laicos ius habere presaentādi clericos ordinarois : hoc singulari favore sustinetur , vt allectētur laici , invitētur , & inducantur ad constructionē ecclesiarū ( c. quoniam . eodem ) nec omni ex parte ius patronatus spirituale censeri debet , sed temporale potius spirituali annexum . ( glos . in c. piae mentis , . qu. . ) these be corasius words in his paraphrase ad sacerdotiorum materium , parte pri . cap. . and parte . . cap. . in principio , he thus writeth of the same mater . patroni in iure pontificio dicuntur qui alicuius ecclesiae extruendae . aut alterius cuiuscunque fundationis ecclesiasticae authores fuerunt , ideoque praesentandi & offerendi clericum ius habent . quem ecclesiae vacanti praeesse , & in ea collatis reditibus frui velint . acquirunt autem hoc ius , qui de episcopi consensu vel fundant ecclesiam , hoc est , locum in quo templum extruitur , assignant , vel ecclesiam aedificant , vel etiam constructas ecclesias ante consecrationem dotant . vt non valde sit obscurum , ius patronatus quo de agimus , finire , ius esse praesentandi clericum ad ecclesiam vacantem ex gratia ei concessum , qui consentiente episcopo , vel const●uxi● , vel dot avit ecclesiam . pannage ( pannagium , aliâs pasnagium ) or ( pennagium ) as it is latined ( in pupilla oculi ) may be probably thought to come of the french ( panez ) or ( panets ) which is a roote something like a parsnep , but somewhat lesse and ranker in taste , which hogs in fraunce feede vpon , though it be eaten by men also ; and the french may seeme to come of the latine ( pamcium ) . i. that which men vse in the steede of bread ( isodorus ) or ( panicium ) of the french. it signifieth in our common law , the mony taken by the agistors for the feede of hogs with the mast of the kings forest : crompton . iurisd . fol. . westm . . cap. . anno . ed. pri . with whom m. manwood parte pri : of his forest lawes agreeth in these words : agistment is properly the common of herbage of any kinde of ground , or land , or woods , or the money due for the same : and pawnage is most properly the mast of the woods , or lands , or hedge-rowes , or the money due to the owner of the same for it . but this learned man in his second part . cap. . where he writeth at large of this , driueth the word from the greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 at the which ( i thinke ) he smiled himselfe when he set it downe . lindwood defineth it thus : panagium est pastus pecorum in nemoribus & in syluis , vtpote de glandibus & aliis fructibus arborum syluestrium , quarum fructus aliter non solent colligi . titulo de decimis . ca. sancta . verb : pannagiis . m. skene de verborum signf . calleth it pannagium , and defineth it to be the duty giuen to the king , for the pasturage of swine in his forest . the french word for the same thing is ( panage ) or ( glandee ) . i. glandatio , vel glandium collectio , & pastio suum ex glandibus . and we surely take it from the french , whence they had it , or what etimologie they make of it , let themselues looke . peace ( pax ) in the generall signification is opposite to warre or strife . but particularly it signifieth with vs , a quiet and harmlesse cariage , or behauiovr toward the king and his people . lamb. eirenarcha . li. . ca. . pag. . and this is one way prouided for all men by oath , as you may read in frank pledge , but more especially in case , where one particular man or some few goe in daunger of harme from some other . for vpon his oath made thereof before a iustice of peace , he must be secured by good bond . see lamb. eirenarcha lib. . c. . p. . see also cromptons iustice of peace . fol. . b. &c. vsque f. . this amōg the ciuiliās is called cautio de non offendedo . gail , de pace publ . lib. pri . c. . nu . 〈◊〉 . peace of god and the church , ( pax dei & ecclesiae ) is aunciently vsed for that rest , which the kings subiects had from trouble and suite of law , betweene the termes . see vacation . peace of the king. anno . . r. . stat . pri . ca. . is that peace and securitie both for life and goods , which the king promiseth to all his subiects or others taken to his protection . see suite of the kings peace . this pointe of policie seemeth to haue beene borowed by vs from the feudists . for in the second booke of the seuds , there is a chapter viz. the . chapter intituled thus . de pace tenenda inter subditos , & iuramento firmanda , & vindicanda , & de poena iudicibus apposita , qui cum vindicare & iustitiam facere neglexerint , the contents of which chapter is a constitution of fredericke the first , as hotoman there proueth , expounding it very learnedly and like himselfe . of this kings peace , roger houeden setteth downe diuers branches , parte poster . suorum annalium . in henr. . fol. . a. b. and fol. . b. he mentioneth a sorme of an oth which hubert archbishop of canterburie , and chiefe iustice of englād in r. the first his daies , sent through the whole realme , to be taken by the kings subiects . see deciners . see suertie of peace . there is also the peace of the church , for which , see sanctuarie . and the peace of the kings high way , which is the immunitie that the kings high way hath , from all annoyance or molestation . see watling street . the peace of the plowe , whereby the plow and plow catell are secured from distresses . for which , see fitz. nat . br . fol. . a. b. so fayres may be said to haue their peace , because noe man may in them be troubled for any debt elsewhere contracted . see fayre . pedage ( pedagium ) signifieth money giuen for the passing by foote or horse through any countrey . extra de censibus , ca. innovamus . i reade not this word in any english writer , but onely the author of the booke called pupilla oculi . parte . cap. . a. d. i thinke we rather vse passage for it . pedagia dicuntur quae dantur â transeuntibus in locum constitutum à principe . et capiens pedagium debet dare saluum conductum , & territorium eius tenere securum . baldus in vsibus feudorum . de pa. iura . fir . § . conventionales . cassan . de consuetud . burg. pag. . hath these wordes , pedagium a pede dictum est , quòd à transeuntibus solvitur , &c. peere ( pila ) seemeth properly to be a fortresse made against the force of the sea , for the better securitie of ships , that lye at harbour in any hauen . so is the peere of douer described in m. camd. brit. p. . in meo . peeres ( pares ) commeth of the french ( per. i. par ) it signifieth in our common lawe , plurally those , that are empaneled in an enquest , vpon any man for the conuicting and clearing him of any offence , for the which he is called in question . and the reason thereof is , because the course and custome of our nation is , to trie euery man in this case by his equals . west prim . cap. . anno . . ed. prim . so kitchin vseth it . fol. . in these wordes : mais si le amerciament soit affirre per pares . and this word in this signification , is not in vse with vs onely , but with other nations also . for pares sunt conuasalli , quorum sententiá vasallus propter feloniam est condemnatus . barklaius de regno , lib. . cap. . et pares sunt qui ab eodem domino feudum tenent , lib. prim . feudor . cap. . but this word is most notoriously vsed for those that be of the nobilitie of the realme , and lords of the parlament , and so is it vsed in stawnf . pl. of the crowne , lib. . cap. triall per les peeres , being the first . the reason whereof is , because though there be a distinction of degrees in our nobilitie , yet in all publike actions they are equall : as in their voices in parlament , and in passing vpon the triall of any noble man , &c. this appellation seemeth to be borowed from fraunce , and from those twelue peeres , that charles the great , ( or lewis the younger , in some mens opinion ) instituted in that kingdome , which be next vnto the king , and are of like dignitie among themselues , touching their power in publike affaires . of whome you may reade vincentius lupanus de magistrat . fraunciae lib , . cap. pares fraunciae . so that we though we haue borowed the appellation , and applied it with some reason to all that are lords of the parlament , yet haue wee no sett number of them , because the number of our nobles , may be more or lesse , as it pleaseth the king. pelota , is a word vsed in the booke called ( pupilla ocult ) parte . cap. . signifying the ball of the foot , of the french ( pelote . ) i. pila . peru fort & dure . see pain for & dure . pelt wooll , is the woll pulled off the skinne or pelt of dead sheepe , anno . h. . cap. . penon , anno . r. . cap. prim . is a standard , banner , or ensigne , caried in warre . it is borowed from fraunce : for pennon in the french language signifieth the same thing . see baneret : yea reade this word anno . r. . cap. . penne , see baye . peper , ( piper ) is a spice known in a manner to euery childe , beeing the fruite of a plant , that is betweene a tree and an herbe : of whose diuersities and nature , you may reade genards herball , lib. . cap. ● . this is set among merchandize that are to be garbled . anno , . iacob . cap. . peper lowse , anno , . h. cap. . per. cui , & post , see entrie . perambulatione facionda , is a writ , that is siewed out by two or more lords of manets , lying neere one another , and consenting to haue their bounds seuerally knowne . it is directed to the shyreeue , commanding him to make perambulation , and to set downe their certaine limits betweene them . of this reade more at large in fitz. nat . br . fol. . see rationabilibus diuisis . see the regist . orig . fol. . and the new booke of entries , verbo , perambulatione facienda . perche ( pertica ) is a french word , signifying a long pole . it is vsed with vs for a rodde or pole of . foote and a halfe in length . where of in length and foure in bredth make an acre of ground . cromptons . iurisd . fol. . yet by the custome of the countrie , is may be longer , as he there saith : for in the forest of sheerewood it is . foot , fol. . m. skene de verbor . signif . verbo , particata terrae , saith , that particata terrae is a roode of land : where he hath also these wordes in effect : three beere cornes without tayles set together in length make an inch : of the which cornes one should be taken of the midde ridge , one of the side of the ridge , another of the furrow . twelue inches make a foot of measure : three foote and an inch make an elne ; sixe elnes long make one fall . which is the common lineall measure , and sixe elnes long , and sixe broade , make a square and superficiall fall of measured land . and it is to be vnderstood , that one rod , one raip , one line all fall of measure , are all one , for each one of them containeth sixe elnes in length . howbeit , a rod is a staffe or pole of wood , a raipe is made of tow or hempe . and so much land as falleth vnder the rod or raipe at once , is called a fal of measure , or a lineal fall : because it is the measure of the line or length onely . like as the superficiall fall is the measure both of length and bredth . item , tenne fals in length and foure in bredth make a roode ; foure roodes make an acre , &c. this is the measure of scotland , where of you may reade more in the same place . perdonatio vtlagariae , in the register iudiciall , fol. . is the forme of pardon for him , that for not comming to the kings court is outlawed , and afterward of his owne accord yeldeth himselfe to prison . peremptorie ( peremptorius ) commeth of the verb ( perimere ) to cut of , and ioyned with a substantiue ( as action or exception ) signifieth a finall and determinate act without hope of renewing . so fitzh . calleth a peremptory action , nat . br . fol. . p. fol. . m. fol. . o. q. r. fol. . d. g. and non-suite peremptorie . idem , eodem , fol. . n. f. fol. . a. peremptory exception . bracton li. . ca. . smith de rep . anglorum , li. . ca. . calleth that a peremptory exception , which can make the state and issue in a cause . perinde valere , is a dispensation graunted to a clerk , that being defectiue in his capacity to a benefice or other ecclesiasticall function , is de facto admitted vnto it . and it hath the appellation of the words which make the faculty as effectuall to the party dispensed with , as if he had bene actually capable of the thing , for which he is dispensed with , at the time of his admissiō . perkins , was a learned lawyer , fellow and bencher of the inner temple , that liued in the daies of edward the . and queene mary . he writ a booke vpon diuers points of the common law of very great commendation . permutatione archidiaconatus & ecclesiae eidem annexae , cum ecclesia & praebenda , is a writ to an ordinary commaunding him to admit a clerk to a benefice , vpon exchaunge made with another : register orig . fol. . a. pernour of profits , commeth of the french verb ( prendre . i. accipere ) and signifieth him that taketh as pernour of profits , anno . h. . ca. pri . pernour de profits , and cesti quevse is all one , coke li. i. casu chudley . fol. . a. see pernour , anno . r. . ca. . per quae seruitia , is a writ iudiciall issuying from the note or fine , and lyeth for the cognizee of a maner , seignory , cheife rent , or other seruices , to compell him that is tenent of the land at the time of the note of the fine leuied , to atturne vnto him . west parte . symbol . titulo fines . sect . . to the same effect speaketh the old nat . br . fol. . see also the new booke of entries . ver●● per quae seruitia . perquisite ( perquisitum ) signifieth , in bracton , any thing purchased , as perquisitum facere . 〈◊〉 . cap. . nu . . & lib. . ca. . perquisites of court , be those profits that grow vnto the lord of a maner , by vertue of his court baron , ouer and aboue the certaine and yearely profits of his land , as escheats , mariages , goods purchased by villeines , fines of copie houlds , and such like . new terms of the law . person . see parson . personable , signifieth as much as inhabled to hould or mainetaine plee in a court . for example : the demaundant was iudged personable to maintaine this action . old . nat . br . fol. . and in kitchin fol. . the tenent pleaded that the wife was an alien borne in portingall without the ligeance of the king , and iudgement was asked whether shewould be answered . the plaintife saith : shee was made personable by parlament , that is , as the ciuilians would speake it , habere personam standi in iudicio . personable is also as much , as to be of capacitie to take any thing graunted or giuen . plowden , casis colthirst . fol. . b. personall ( personalis ) hath in our common lawe , one strange signification , being ioyned with the substantiue , things , goods , or chatels : as things personall , goods personall , chatels personall , for thus it signifieth any corporeall , and moueable thing belonging to any man , be it quicke , or dead . so is it vsed in west , parte . symbol . titulo inditements , sect . . in these words . theft is an vnlawfull felonious taking away of another mans moueable personall goods , and againe , fol. . larceny is a felonious taking away of another mans moueable personal goods ; & kitchin f. . in these words : where personall things shal be giuen to a corporation : as a horse , a cowe , an oxe , sheepe , hogs , or other goods , &c. and stawnford . pl cor . fo . . contrectatio rei aliena , is to be vnderstood of things personall : for in things reall it is not felony , as the cutting of a tree is not felony . the reason of this application , see in chatell . personalty ( personalitas ) is an abstract of persouall . the action is in the personalty , old . nat . br . fol. . that is to say , brought against the right person , or the person against whome in lawe , it lieth . i find these contrary words . ( personalitas & impersonalitas ) in the author of the booke called vocabularius vtriusque iuris : as for example , personalitas significatur per has dictiones : tu , mihi , ego , tibi , cum alto significato quod probabiliter conclulitur & si nullo modo concludatur , tunc est impersonalitas , quia actum vitiat , prout ratio dictat . verbi gratia . ego stipulor : constituis te mihi soluturum debitum a titio mihi debitum : tu respondes , satisfiet . haec impersonalitas non contrahit obligationem . persons ne praebendaries ne seront charges as quinsimes , &c. is a writ that lyeth for preb endaries or other spirituall persons , being distreined by the shyreeue , or collectours of fifteenths , for the fiftenth of their goods , or to be contributory to taxes . fitzh . nat . br . fol. . pesterable wares , seeme to be such wares , as pester and take vp much roome in a shippe , anno . h. . cap. . peter pence ( denar 〈…〉 sancti petri ) otherwise called in the saxon tongue roomfooh . i. the see of rome , or due to rome , and also romescot , and rome penning , was a tribute giuen by inas king of the west saxons being in pilgrimage at rome , in the yeare of our lord. . which was a peny for euery house . lamberds explication of saxon words . verbo numus . whome see also fol. . in saint edwards lawes . nu . . where it is thus writen . omnes qui habent . denariatus viuae pecuniae in domo sua de suo proprio , anglorum lege dabit denariū sancti petri , & lege danorum , dimidiam merkam : iste verò denarius debet summoniri in solennitate . apostolorum petri & pauli & colligi ad festivitatem , quae dicitur ad vincula : ita vt vltra illum diem non detincatur . si quispiam detinuerit , ad insticiam regis 〈◊〉 deferatur , quoniam denarius hic rogis eleemmoz 〈…〉 est , iusticia verò faciat denarium 〈◊〉 dere , & foriffacturam . episcopi● & regis . quòd si quis domos plures had buerit , de illa , vbi residens fuerit infesto apostolorum petri & paul● denarium reddat . see also king edgars lawes . fol. . cap. . which containeth a sharpe constitution touching this 〈…〉 ter , stowe in his annals , pag. . saith , that he that had . peni worth of goods of one manes catell in his house , of his own proper , was to giue a p 〈…〉 at lammas yearly . see romes 〈…〉 petit cape . see cape . petit larceny ( parvum latr 〈…〉 nium ) see larcenye . petit treason ( parua traditio ) in true french is ( petit trahizon . 〈…〉 proditio minor ) treason in a lesser or lower kinde . for whereas treason in the highest kinde , is an offence done against the securitie of the common wealth west parte . symb . titulo indi●ements , sect . . petit treason is of this nature , though not so expresly as the other . examples of petit treason you shall find to be these : if a seruant kill his master , a wife her husband , a secular or religious man his prelate , anno . edward . cap. . whereof see more in staw●f . pl. cor . lib. . cap. . see also crom 〈…〉 iustice of peace . fol. . where he addeth diuers other examp 〈…〉 those of stawnford . for the punishment of petit treason , see the statute , anno . h. . cap. . and crompton vbi supra . petition ( petitio ) hath a general signification for all intreaties made by an inferiour to a superiour , and especially to one hauing iurisdiction : but most especially it is vsed for that remedie , which the subiect hath to helpe a wrong done , or pretended to be done by the king. for the king hath it by prerogatiue , that he may not be siewed vpon a writ . stawnf . praer . cap. . whome also read cap. . and a petition in this case is either generall , or speciall . it is called generall of the generall conclusion set downe in the same . viz. que le roy lui face droit & reison . that the king doe him right and reason : wherevpon followeth a generall indorsement vpon the same . soit 〈◊〉 fait aux partis . let right be done to the partise . petition special is where the conclusion is speciall for this or that : and the indorsment to that is likewise speciall . see the rest cap. . petra lanae , a stone of wooll see stone . philiser , see filazer . piccage ( piccagium ) is money paid in faires for breaking of the ground to set vp boothes or standings . picle , ali 〈…〉 p 〈…〉 seemeth to come from the italian ( piccolo vel picciolo . i. parvus , minutus ) and signifieth with vs a little small close or inclosure . pienour , commeth of the french ( pionnier . i. fossor ) and signifieth such labourers , as are taken vp for the kings host to cast trenches , or vndermine forts anno . . & . ed. . cap. . piepowders court ( curia pedis pulverizati ) cōmeth of two french words ( pie● . i. pes ) and pouldreux . i. pulverulentus ) it signifieth a court held in faires for the redres of all disorders cōmitted within them : which because it is summarie , de plano , & sine figura iudicii , it hath the name of dustie seete , which we cōmonly get by sitting neere the ground : of this see cromptons iurisd . fol. . reade m. skene . de ver . signif . verbo pedepulverosus : which word he reporteth to signifie a vagabond , especially a merchant , which hath no place of dwelling , where the dust may be wiped of his feet or shooes , & therefore must haue iustice summarily ministred vnto him . viz. within three flowings and three ebbings of the sea . bract. calleth it iustitiam pepoudrous , li. . tract . . ca. . nn . . of this court reade the statute anno . ed. . cap. . pille of foddray , in the countie of lancastor , an . 〈◊〉 . h. . ca. . seemeth to be a creeke , and called pille by the ideom of the country for pile : for the which see pile . pillorie ( collistrigium , pillorium ) commeth of the french ( pilorie ) which may seeme to smell of the greeke , and to proceede from ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) because one standing on the pillory putteth his head through a kind of doore . i. ianua : & 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. video : it signifieth all one thing with it , sauing that the french is vsed for a tumbrell , as well as for that which we call the pillorie , there is a statute made of the pillorie . anno . h. . wherein you may see who were then subiect to this punishment . this was among the saxons called healsfang of ( heals ) a necke and ( fang ) to take , lamb. explication of saxon words . verbo . mulcta . pipe ( pipa ) seemeth to be a rolle in the exchequer , otherwise called the great rolle , anno . ed. . ca. . see clerke of the pipe . it is also a measure of wine or oile couteining halfe a tunne , that is sixe score & sixe gallons , anno . r. . cap. . piscarie ( piscaria ) commeth of the french ( peschario . i. piscatio ) it signifieth in our common lawe , a libertie of fishing in an other mans waters . pittle . see picle . placard , anno . & . ph. & mar. cap. . is a licence whereby a man is permitted to maintaine vnlawfull games . plaint ( querela ) is a french word , signifing as much as questus , querimonia . in our common law , it is vsed for the propounding of any action personall or reall in writing . so it is vsed in brooke , titulo . plaint in assise . and the party making this plaint , is called plaintife : kitchin , fol. . plea ( placitum ) commeth of the french ( ploid . i. lis . controversia ) . it signifieth in our common lawe , that which either partie alleadgeth for himselfe in court . and this was wont to be done in french from the conquest vntill edward the 〈◊〉 who ordeined them to be done in english . a. . cap. . pleas are diuided into pleas of the crowne , and common pleas . pleas of the crowne in scotland be . roberie , rape , murder , and wilfull fire , skene de verb. sign . verb. placitum . with vs they be all suites in the kings name against offences committed against his crowne and dignitie . stawnf . pl. cor . cap. . or against his crowne and peace . smith . de repub. augl . li. . cap. . and those seeme to be treasons , felonies , misprisions of either , and mayhem . for those onely doth that reverend iudge mention in that tractat . common pleas be those that be held betweene common persons . yet by the former definitions , these must comprise all other , though the king be a partie . plea may farder be diuided into as many braunches as action , which see . for they signifie all one . then is there a forein plea , whereby mater is alleadged in any court that must be tried in another . as if one should lay bastardy to another in a court baron . kitchin. fo . . the word ( placitum ) is vsed by the commentours vpon the feuds in the same signification that pleas be with vs. and ( placitare ) with them is ( litigare , & causas agere . hotom . in verb. feudal . verb. placitare . pledge ( plegius ) commeth of the french ( pleige . i. fideiussor ) pleiger ancun . i. fideiubere pro aliquo . in the same signification is plegius vsed by glanuile . libro decimo , capite quinto , and plegiatio for the act of suretiship in the interpreter of the grand custumarie of normandie , capite . . plegii dicuntur persona● qua se obligant ad hoc , ad quod qui eos mittit tenebatur . and in the same booke , capit . . & . pligutio is vsed as glanuile before doth vse it . salui plegii , be vsed for plegii , pupill . oculi , parte quint. capit . . charta de foresta . this word plegius is vsed also for frank pledge sometime , as in the ende of william conquerours lawes set out by master lamberd in his archaiononi . fol. . in these words . omnis homo qui voluerit se teneri pro libero , sit in plegio , vt plegius eum habeat ad iusticiam , si quid offenderit , &c. and these be called capitall pledges . kitchin . folio decimo . see frank pledge . plena forisfactura , and plena vita , fee forfeiture . plegiis acquietandis , is a writ that lieth for a suretie against him , for whome he is suretie , if he pay not the money at the day . fitzh . nat br . fol. . regist. original . . a. plenartie , is an abstract of the adiectiue ( plenus ) and is vsed by our common lawyers in mater of benefices ▪ wherein plenartie and vacation be meerely contrarie . stawnford . prarogativ . cap. octau . fol. . west . secundo , capit . quint. anno . edvard . pri . plevin ( pleuina ) commeth of the french ( plenine . i. sponsio ) see replevin . plite of lawne , &c. anno . . ed. . cap. . seemeth to be a certaine measure , as a yard , or elle , &c. plonkets , anno . r. . cap. . is a kind of wollen cloth . pluries , is a writ that goeth out in the third place . for first goeth out the originall capias : which , if it speed not , then goeth out the sicut aliâs : and if that faile , then the pluries . see old nat . br . fol. . in the writ de excom . capiendo , see in what diuersitie of cases this is vsed in the table of the original regist . pole. see perch . polein , anno . ed. . cap. . seemeth to be a sharpe or picked toppe set in the forepart of the shooe or boott . this fashion was first taken vp in richard the seconds dayes , the pickes being made so long as they were tyed vp to the knees with siluer or golden chaines , and forbidden by edward the fourth . stow pag. . policie of assurance , is a course taken by those which do aduenture wares or merchandize by sea , whereby they , loche to hazard their whole aduenture , do giue vnto some other a certaine rate or proportion , as tenne in the hundred , or such like , to secure the safe arriuall of the ship , and so much wares at the place ; agreed vpon . so that if the ship and wares do miscarie , the assrer maketh good to the venturer so much as he promiseth to secure , as . . . more or lesse : and if the ship do safely ariue , he gaineth that clearely which the venturer compoundeth to pay him . and for the more euen dealing betweene the venturer and the securer in this case , there is a certaine clerk or officer ordained to set downe in writing the summe of their agreement , that they afterward differ not betweene themselues vpon the bargaine . this is in course latine elsewhere called assecuratio . this terme you haue anno . fliz. cap. . pondage . see poundage . pone , is a writ , whereby a cause depending in the county court , is remoued to the common banke . old nat . br . fol. . see in what diuersitie of cases it is vsed , in the table of the originall register . pone per vadium , is a writ commaunding the shyreene to take suretie of one for his appearance at a day assigned : of this see fiue sorts in the table of the regists iudic. verbo , pone per vadium . ponondis in assisis , is a writ founded vpon the statute of westm . . cap. . and vpon the statute articuli super chartas cap. . which statutes do shew , what persons vicounts ought to impanell vpon assises and iuries , and what not : as also what number he should empanell vpon iuries and inquests , which see in the register orig . fol. . a. and in fitz. nat . br . fol. . ponendo in ballum , is a writ whereby to will a prisoner held in prison , to be committed to baile in cases baylable . register orig . fol. . b. ponendo sigillum ad exceptionem , is a writ whereby the king willeth iustices , according to the statute of westm . . to put their seales to exceptions laid in against the plaintiffes declaration by the defendant . pontage ( pontagium ) is a contribution toward the maintenance or reedifying of bridges westm . . cap. . anno . ed. pri . it may be also tolle taken to this purpose of those that passe ouer bridges , anno . eliz. cap. . anno . h. . cap. . and see the statute , anno . h. . cap. . pontibus reparandis , is a writ directed to the shyreeue , &c. willing him to charge one or more to repaire a bridge , to whom it belongeth . regist . orig . fol. . b. portgreue ( portgreuius ) is compounded of two words ( port ) & ( greue ) or ( graue ) i. praefectus . it signifieth with vs the chiefe magistrate in certaine coast townes , and as m. camden saith in his britan. pag. . the chiefe magistrate of london was termed by this name : in steed of whom richard the first ordained two bayliffes : but presently after him , king iohn granted them a maior for their yearely magistrate . porter of the doore of the parlament house , is a necessary officer belonging to that high court , & enioyeth the priuiledges accordingly . cromptons . iurisd . fol. . porter in the circuit of iustices , is an officer that carieth a verge or white rodde before the iustices in eyre , so called , a portando virgam , anno . ed. , cap. . porter bearing verge ( virgator ) before the iustices of either benth , anno . ed. . cap. . see vergers . portemote , is a word compounded of ( port . i. portus ) and the saxon ( gemettan . i. conuenire ) or of the french ( mot . i. dictio , verbum . ) it signifieth a court kept in hauen townes , as swainmote in the forest . manwood , parte prim . of his forest lawes , pa. . it is sometime called the portmoote court , anno . eliz. cap. . portsale , anno . h. . cap. . id est , sale of fish presently vpon returne in the hauen . possession ( possessio ) is vsed two waies in our common lawe . first for lands and inheritance : as , he is a man of large possessions . in which signification it is also vsed among the ciuilians sc : for the thing possessed , l. possessionum : cod. commun . vtriusque iudic. next , for the actuall enioying of that , which either in truth or pretence is ours . and in this signification there is possession indeed , and possession in lawe : pl. cor . fol. . the example there is this : before or vntill an office to be found , the king hath onely possession in law , and not in deed , speaking of the lands escheated by the attainder of the owner . see praerog . fol. . & . . in this signification also there is an vnitie of possessiō , which the ciuilians call consolidationem . take an example out of kitchin , fol. . if the lord purchase the tenancie held by heriot seruice , then the heriot is extinct by vnity of possession : that is , because the seigneurie and the tenancie be now in one mans possession . many diuisions of possession you may reade in bracton . lib. . cap. . per totum . post . see per. post diem , is a returne of a writ after the day assigned for the returne : for the which , the custos breuium hath foure pence , whereas he hath nothing , if it be returned at the day : or it may be the fee taken for the same . post fine , is a duty belonging to the king for a fine formerly acknowledged before him in his court which is paid by the cognizee , after the fine is fully passed , and all things touching the same wholly accomplished . the rate thereof is so much and halfe so much , as was payed to the king for the fine , and is gathered by the shyreeue of the countie where the land , &c. lyeth , whereof the fine was leuyed , to be aunswered by him into the exchequer . post terme , is a returne of a writ , not onely after the day assigned for the returne thereof , but after the terme also ; which may not be receiued by the custos brevium , but by the consent of one of the iudges it may be also the fee which the custos breuium taketh , for the returne thereof , which is twenty pence . postea , is a word vsed for a mater tried by nisi prius , and returned into the court of common pleas for iudgement , and there afterward recorded . see plowden , casu saunders . fol. . a. see an example of this in sir edw. cokes reports . volum . . rowlands case . fol. . b. . a. see custos breuium . post disseisin ( post disseisina ) is a writ giuen by the statute of west . . cap. . and lyeth for him that hauing recouered lands or tenements by ( praecipe quod reddat ) vpon default , or reddition , is againe disseised by the former diffeisour . fitz. nat . br . fol. . see the writ that lyeth for this in the register originall , fol. . a. posteriority , ( posterioritas ) is a word of comparison and relation in tenure , the correlatiue whereof is prioritie . for a man holding lands or tenements of two lords , holdeth of his auncienter lord by prioritie , and of his later lord by posterioritie . stawn . praerog . fol. . & . when one tenent holdeth of two lords , of the one by prioritie , of the other by posterioritie , &c. old nat . br . fol. . pourchas ( perquisitum ) commeth of the french ( pourchasser , i. sollicitare , ambire : ) it signifieth the buying of lands or tenements with money or other agreement , and not the obtaining of it by title or discent . coniunctum perquisitum . ioynt pourchase . regist . originall . fol. . b. pour faire proclaimer , que nul eniect fimes ou ordures en fosses euriuers pres cities , &c. is a writ directed to the maior , shyreeue or bayliffe of a citie or towne , cōmanding them to proolaime , that none cast filth into the ditches or places neare adioyning : and if any be cast alreadie , to remoue it . this is founded vpon the statut , anno . rich. . cap. . fitzherb . nat . br . fol. . pourparty ( propars , propartis , vel propartia ) is contrarie to ( pro indiuiso ) for to make pourparty is to diuide , and seuer the landes that fall to parceners , which before partition they hold ioyntly , and pro indiuiso . old . nat . br . fol. . pourpresture ( pourprestura , vel perprestura , vel paraprestura ) seemeth to come from the french ( pourpris . i. conseptum . ) it is thus defined by glanuile , lib. . cap. . pourprestura est propriè , quando aliquid super dominum regem iniustè occupatur . vt in dominicis regis , vel in viis publicis abstructis , vel in aquis publicis transuersis à recto cursu : vel quando aliquis in ciuitate super regiam plateam aliquid adificando occupauerit : & generaliter , quoties aliquid fit ad nocumentum regii tenementi , vel regiae viae , vel ciuitatis . crompton . in his iurisd . fol. . defineth it thus : pourpresture is properly when a man taketh vnto himself or incrocheth any thing that he ought not , whether it be in any iurisdiction , land or fraunchis : and generally , when any thing is done to the nusance of the kings tenents . et idem , eodem , fol. . saith to the same effect , but more at large . see kitchin , fol. . and manwood , parte prim . of his forest lawes , pag. . & parte . cap. . per totum . see skene de verbor . signif . verb. purpresture . where he maketh three sorts of this offence : one against the king , the second against the lord of the fee : the third , against a neighbour by a neighbour lying neare him . pour seisir terres la femme que tient en dower , &c. is a writ whereby the king seiseth vpon the land , which the wife of his tenent , that held in capite , disceased , hath for her dowrie , if shee marry without his leaue : and is grounded vpon the statute of the kings prerogatiue . cap. . see fitzh . fol. . poursuyuant , commeth of the french ( poursuiure . i. agere , agitare , persequi ) it signifieth the messenger of the king attending vpon him in warres , or at the counsell table , the starre chamber , exchequer , or commission court , to be sent vpon any occasion , or message , as for the apprehension of a party accused , or suspected of any offence committed . those that be vsed in marshall causes , be called poursw 〈…〉 t s at armes , anno . hen. . cap. . whereof there be foure in number of especial names , which see in herald . and m. stowe speaking of richard the third his end . pag. . hath these words : for his bodie was naked to the skinne , notso much as one cloute about him , and was trussed behinde a pursuyuant at armes , like a hogge , or a calfe , &c. the rest are vsed vpon other messages in time of peace , and especially in maters touching iurisdiction . see herald . pourueyour , ( prouison ) commeth of the french ( pour 〈…〉 . i. prouidere prospicere . ) it signifieth an officer of the king , queene , or other great personage , that prouideth corne and other victuall , for the house of him whose officer he is . see magna charta . cap. . & . ed. prim . cap. . & cap. . & anno . eiusdem . articuli super chartas . . and many other statutes gathered by rastal vnder this title . powldauis . anno . iacob . ca. . ● . power of the countie , ( posse c 〈…〉 tatus ) by m. lamberds opinion in his eirenar . lib. . cap. . fol. . containeth the ayde and attendance of all knights , gentlemen , yeomen , labourers , seruants , apprentises , and villaines : and likewise of wardes , and of other young men aboue the age of fifteene yeeres , within the countie , because all of that age are bound to haue harnesse , by the statute of winchester . but women , ecclesiasticall persons , and such as be decrepit , or do labour of any continuall infirmitie , shall not be compelled to attend . for the statute . h. . cap. . ( which also worketh vpon the same ground ) saith , that persons sufficient to trauell , shall be assistant in this seruice . pounde ( parcus ) seemeth to signifie generally any inclosure of strength to keepe in beasts : but especially , with vs , is signifieth a place of strength to restraine catell being distrained or put in for any trespas done by them , vntill they be repleuied or redeemed . and in this signification it is called a pound ouert , or open pound being builded vpon the wast of some lord within his fee , and is called the lords pownd . for he provideth it to his vse , and the vse of his tenents . see kitchin. fol. . it is diuided into pound open , and pound close : pound open or ouert , is not onely the lordes pownd , but a backside , court , yarde , pasture , or else what soeuer , whether the owner of any beasts impounded may come to giue them meate and drinke without offence , for their being there , or his comming thither : pound close is then the contrary viz. such a one as the owner cannot come vnto , to the purpose aforesaide without offence , as some close house , or such like place . powndage , is a subsidie granted to the king of all maner of merchandies of euery merchant denizen and alien , caried out of this realme , or brought into the same by way of merchandize , to the valew of twelue pence in eeuery pound , anno . ed. . cap. . anno . eliz. cap. . anno . iacobi , cap. . pray age . see age prier . pray in ayd . see ayd . prebend ( praebenda ) is the portion , which euery member , or canon of a cathedrall church receiueth in the right of his place , for his maintenance . and though vse haue wrought the latine word into the nature of a substantiue : yet i thinke it originally to be an adiectiue , or participle , and to haue bene ioyned with ( pars or portio ) as ( canonica portio ) which is in a maner all one in signification . how be it ( canonica portio ) is properly vsed for that share which euery canon or prebendary receiueth yearely out of the common stocke of the church : and praebenda is a seuerall benefice rising from some temporall land , or church appropriated , toward the maintenance of a clerke , or member of a collegiat church ; and is commonly surnamed of the place , whence , the profit groweth . and prebends be either simple , or with dignity . simple prebends be those , that haue no more but the reuenew toward their maintenance : prebends with dignity are such , as haue some iurisdiction annexed vnto them according to the diuers orders in euery seuerall church . of this see more in the title . de praebendis , & dignitat : in the decretalls . alciat saith that ( praebenda ) in the plurall number and neuter gender was aunciently vsed : as now ( praebenda ) in the singuler number and feminine gender is vsed . parerg . ca. . praebendary ( praebendarius ) is he that hath a prebend : see praebend . praecept ( praeceptum ) is diuersly taken in the cōmon law : sometime for a commaundement in wrighting sent out by a iustice of peace , or other for the bringing of a person one or more , or records before him : of this you haue examples of diuers in the table of the reg. iudiciall : and this vse seemeth to be borowed from the customes of lombardy , where praeceptum signifieth scripturam , vel instrumentum . hot. in verbis feudal . & libro . . commentariorum in libros fendorum , in praefatione . sometime it is taken for the prouocation , whereby one man inciteth an other to commit a felony , as theft , or murder . stawnf . pl. cor . fol. . bracton calleth it ( praeceptum ) or ( mandatum ) lib. . tract . . ca. . whence a man may obserue three diuersities of offending in murder : praeceptum , fortia , consilium : praeceptum , being the instigation vsed before hand , fortia , the assistance in the fact , as help to binde the party murdered , or robbed : consilium , aduise either before or in the deede . the ciuilians vse ( mandatum ) in this case , as appeareth by angelus in tracta : de maleficus . vers . sempronium mandatorem . praeceptories , anno . h. . cap. . were benefices in a kinde , & termed preceptories , because they were possessed by the more eminent sort of the templers , whome the cheife master by his authoritie created and called ( praeceptores templi ) ioach. stepha . de iurisdict . li. . cap. . num . . see comaundry . praecipe quod reddat , is a writ of great diuersitie touching both the forme and vse , for beter declaration whereof see ingressu , and entrie . this forme is extended as well to a writ of right , as to other writs of entry , or possession . old . nat . br . fol. . and fitzh . nat . br . fol. . and it is called sometime a writ of right close , as a praecipe in capite , when it issueth out of the court of common plees for a tenent holding of the king in cheife , as of his crowne , and not of the king , as of any honour , castell or maner . register orig . fol. . b. fitzh . nat . br . fol. . f. sometime a writ of right patent : as when it issueth out of any lords court , for any of his tenents deforced , against the deforcer , and must be determined there . of this reade more at large in fitzh . nat . br . in the very first chapter or writ of all his booke . praemunire , is taken either for a writ , or for the offence wherevpon the writ is graunted . the one may well enough be vnderstoode by the other . it is therefore to be noted , that the church of rome vnder pretence of her supremacie and the dignitie of saint peters chaire , grew to such an incroching , that there could not be a benefice ( were it bishoprick , abbathy , or other ) of any worth here in england , the bestowing whereof could escape the pope by one meanes or other . in so much , as for the most part , he graunted out mandats of ecclesiasticall liuings , before they were voide to certaine persōs by his buls , pretēding therein a great care to see the church prouided of a successorbefore it needed . whence it grew that these kinde of buls were called ( gratiae expectativae ) or ( prouisiones ) whereof you may reade a learned discourse in duarenus that worthie ciuilian in his tractat : de beneficiis lib. . c. . and in his treatise de immunitate ecclesiae gallicanae . these prouisions , wereso rife with vs , that at the last , king edward the third , that heroicall prince , not disgesting so intolerable an oppression , made a statute in the . yeare of his reigne , statuto . cap. . and another , statuto . eiusdem anni . cap. pri . and a third anno . against those that drew the kings people out of the realme , to answer of things belonging to the kings court ; and another anno . statu . . . . . . & . to the like effect whereby he greatly restained this libertie of the pope . yet such was the wantonnesse that grew out of his power , & the num patiēce of princes in those daies , that hee still advētured the continuance of these prouisions : in so much as king richard the second made likewise a statute against them in the . yeare of his reigne , cap. . and the . yeare statut . . ca. . making mention of the said first statute of edward the third , ratifiing the same , and appointing the punishment of those , that offēded against it , to be perpetuall banishment , forfeiture of their lands , tenements , goods , and catels , as by the same doth more at large appeare . and againe in the . yeare of his reigne , cap. . to meete more fully with all the shifts inuented to defraude these former statutes , he expresseth the offence more particularly , and setteth the same punishment to it , that hee ordeined in the last former statute . for there toward the ende he hath these words : if any purchase or pursiew , or do to be purchased , or pursiewed in the court of rome , or els where , any such translations , processes , and sentences of excommunication , buls , instruments , or any other things , &c. after him k. h. the fourth in like maner greeued at this importuny by other abuses not sully mette with in the former statutes , in the second yeare of his reigne , cap. . & . addeth certaine new cases , and laieth vpon the offendours in them the same censure , whereunto for shortnes sake i referre you : admonishing likewise to adde the statute , anno . . eiusdem . cap. pri . & anno . cap. . & . & anno . eiusdem . cap. . & anno . h. . cap. . out of which statutes haue our professors of the common lawe , wrought many daungers to the iurisdiction ecclesiasticall , thretning the punishment conteined in the statute anno . . ed. . & . . eiusdem , almost to euery thing that the court christian dealeth in , pretending all things delt with in those courts to be the disherison of the crowne . from the which , and none other fountaine , all ecclesiasticall iurisdiction is now deriued : wheras in truth sir tho. smith saith very rightly , and charitablely , that the vniting of the supremacie ecclesiasticall , and temporall in the king , vtterly voideth the vse of all those statuts . nam cessante ratione , cessat lex . and whatsoeuer is now wrought or threatened against the iurisdiction ecelesiasticall , by colour of the same , is but in emulation of one court to another : and by consequent a derogation to that authoritie , from which all iurisdiction is now deriued , and the maintenance whereof was by those princes especially purposed . but of this reade sir thomas smith , lib. . de rep. angl. cap. . some later statutes doe cast this punishment vpon other offenders : as namely the statute , anno . el. cap. primo , vpon him that denieth the kings supremacie the second time , &c. and the statue anno . el. ca. . vpon him that affirmeth the authoritie of the pope : or that refuseth to take the oathe of supremacie . and the statute , anno . el. cap. . fuch as be seditious talkers of the inheritance of the crowne , or affirme the queenes maiestie to be an heritique . and the word is applied most commonly to the punishment first ordeined by the statutes before mentioned , for such as transgressed them ; but in later times imposed vpon other offences . for that , where it is saide that any man for an offence committed shall incurre a premunire , it is meant , that he shall incurre the same punishment , which is inflicted against those that trangresse the statute made , anno . r. . ca. . which is commonly called the statute of premunire , which kinde of reference is not vnusuall in our statutes . cor example , i shew onely the statute , anno . el. ca. . where it is inacted that if any man preach or teach by wrighting , that the cōmon counsell of the realme doe by that statute forbid flesh to be eaten , as of necessitie for the sauing of mans soule , that he shall for such preaching , &c. be punished as they be , which be spredders of false newes : hauing reference thereby to those statutes , which conteine the punishment of such offenders . now touching the etymologie of this word ( praemunire ) some thinke it proceedeth from the strength giuen to the crown by the former statutes , against the vsurpation of forein and vnnaturall power : which opinion may receiue some ground from the statute , anno . ed. . stat . . cap. pri . but other thinke it to grow from the verb ( praemonere ) being barbarously turned into ( praemunire ) which corruption is taken from the rude interpreters of the ciuile , and canon lawes , who indeede doe vse the effect ( praemunire ) many times for the efficient cause ( praemonere ) according to our prouerb : he that is well warned , is halfe armed . and of this i gather reason from the forme of the writ , which is thus conceiued in the old . nat . br . fol. . praemunire facias praefatum praepositum & i. r. procuratorem , &c. quod tune sint coram nobis , &c. for these words can be referred to none , but parties charged with the offence . praepositus villae , is vsed sometime for the constable of a town , or petit constable . cromptons iurisdict . fol. . how be it the same author , fol. . seemeth to apply it otherwise . for there quatuor homines praepositi , be those . men , that for euery towne must appeare before the iustices of the forest in their circuit . it is vsed sometime for a reeve . see reeve . praerogatiue of the king ( praeregatiua regis ) is that especiall power , preeminence , or priuiledge that the king hath in any kinde , ouer and aboue other persons , and aboue the ordinarie course of the common lawe , in the right of his crowne . and this word ( praerogatiua ) is vsed by the ciuilians in the same sense . l. rescriptum . . § . . Π. de hono . & muner . but that priviledge that the roman emperour had aboue common persons , they for the most part comprised ( sub iurefisci . Π. de iure fisct , per totum tit . & co. li. . tit . . among the feudists this is termed ( ius regalium , ius regaliorum vel a nonnullis ius regaliarum ) but as the feudists , sub iure regalium , soe our lawyers ( sub praerogatiua regis ) doe comprise also , all that absolute heighth of power that the ciuilians call ( maiestatem , vel potestatem , vel ius imperii , ) subiect only to god : which ( regalia ) the feudists diuide into two sorts , maiora sc . & . minora regalia . for to vse their owne words , quaedam regalia , dignitatem , praerogatiuam , & imperii praeemmentiam spectant : quaedam verò ad vtilitatem , & commodum pecuniarium immediatè attinent : & haec proprièfiscalia sunt , & ad ius fisci pertinent . peregri : de iure fisci , li. pri . cap. . nu . . see also arnoldus clapmarius . de arcanis imperii . lib. pri . cap. . & seqq . who seemeth to make difference betwene maiestatem , & ius regaliorū . others also make those ( maiora regalia ) that appertaine to the dignitie of the prince , and those minora , which inrich his cofers . regnerus sixtinus , de iure rega . cap. . by this it appeareth , that the statute of the kings prerogatue made , an . . ed. . conteineth not the summe of the kings whole prerogatiue , but onely so much thereof , as concernes the profit of his cofers growing by vertue of his regall power and crowne . for it is more then manifest , that his prerogatiue reacheth much farder : yea euen in the maters of his profit , which that statute especially consisteth of . for example , it is the kings prerogatiue to graunt protection vnto his debtours against other creditours , vntill himselfe be satisfied . fitzh . nat . br . fol. . b. to distreine for the whole rent vpon one tenent , that hath not the whole land . idem . fol. . a. to require the auncesters debt of the heire , though not especially bound . brit. cap. . fo . . b. to seise vpon money paid by his deptour into a court , for the satisfaction of an executor . plowden , fol. . a. to permit his deptours to siew for their debts by a ( quo minus ) in the exchequer . perkins . grawnts . . to be first paid by one that oweth money both to him and others . dyer . fol. . nu . . to take the lands of accountants into his hands for his own satisfaction . plowd . casu almes . fol. . & . to take his action of accoumpt against executors , eodem , fol. . not to be tied to the demaund of his rent . coke . li. . fo . . a. now for those regalities which are of the higher nature ( all being within the compas of his prerogatiue , and iustly to be comprised vnder that title ) there is not one that belonged to the most absolute prince in the world , which doth not also belong to our king , except the custome of the nations so differ ( as indeede they doe ) that one thing be in the one accompted a regalitie , that in another is none . onely by the custome of this kingdome , he maketh no lawes without the consent of the . estates though he may quash any lawe concluded of by them . and whether his power of making lawes be restreined ( de necessitate ) or of a godly and commendable policy , not to be altered without great perill , i leaue to the iudgement of wisermen . but i hold it incontrowlable , that the king of england is an absolute king . and all learned politicians doe range the power of making lawes , inter insignia summae & absolutae potestatis . maiora autem regalia sunt haec : clausula plenitudinis potestatis , & ex ea aliquid statuere , leges condere , ac eas omnibus & singulis dare , bellum indicere , belli indicenci licentiam alii dare , pronunciare ita vt a sententia appellari non possit , committere sive delegare alicui causam cum clausula appellatione remota , cognoscere de crimine laesae maiestatis , legitimare per rescriptum eos qui extra legitimum matrimonium nati sunt , ad famam , honores , & natales in integrum restituere , veniam aetatis dare , creare duces , marchiones , comites , regnum in feudum concedere . huc referri potest ius erigendi scholam , quae hodie vniuersitas vel academia appellatur , etiā ius creādi doctores , gradu licentiae aliquem insigniendi , creandi magistratus , tabelliones , siue notarios , ius dandi insignia nobilitatis , siue nobiles creandi , ius cudendae monetae , noua vectigalia instituendi , vel instituta vectigalia augendi ; sixtinus vbi supra . so that those other which are mentioned in libris feudorum , and the interpreters of them , are ( at the least for the most part ) iustly called regalia minora , as armandiae , viae publicae , flumina nauigantia , portus , ripalia , vectigalia , monetae , mulctarum poenarumque compendia , bona vacantia , bona quae indignis auferuntur , bona eorum qui incestum matrimonium contrahunt , bona damnatorum , & proscriptorum , angariae & parangariae , extraordinariae ad expeditionem imperatoris collationes , potestas creandorum magistratuum ad iusticiam exequendam , argentarie , palatia in ciuitatibus constituta , piscationum reditus , salinarum reditus , bona committentium crimen laesae maiestatis , thesaurus inuentus . by setting downe these regalities of both sorts , as they are accoumpted in the empire , and other forein kingdomes , they may be the more easily compared with our kings prerogatiues , and so the differences noted betweene vs and them . and whereas some things are before reckoned both ( inter regalia maiora , & minora ) the reader must vnderstand that this may be in diuers respects . for example , the power of raising a tribute , or of coyning money is inter maiora : but the profit that groweth to the prince by the one or other , is ( inter minora ) now may there also be noted out of books a great number of prerogatiues belonging to the king of this land , which doe not bring profit to his cofers immediately , and therefore may be accoumpted inter regalia maiora , or at the least , in a middle or mixt nature , or inter maiora & minora , because by a consequent they tend to the increase of the kings exchequer . of these such as i haue obserued in reading , i will set downe as they come to my hands , without farder curiosity in diuiding . it is the kings prerogatiue that he may not be siewed vpon an ordinary writ as tenent to lands , but by petition . plowd . casu walsingham fo . . to haue a cecessary consent in the appropriation of all benefices . idem , casu grendon . fol. . to waiue and to demurre , and to pleade to the issue , or to waiue the issue , and to demurre vpon the plee of the aduers part , yet not to chaunge the issue another terme after he and the aduers part be once at issue . idem , casu willion . fol. . . a. & casu mines fol. . a. to be receiued in a suite before issue ioyned vpon an ( ayde prier ) idem , casu dutchry of lancaster , fol. . b. to be neuer in nonage , eodem , fol. . b. that a man indicted may not wage battell with him . idem casu nimes fol. . b. that no man vpon any right may enter vpon him being in possession , but must be put to suite . dyer fol. . nu . . to seise the lands of his tenents that alienate without licence . plowd . casu . mines . fol. . a. that no subiect may wage his law against him . broke . chosein action . . coke . lib. . fol. . to present in the right of the youngest coparcener being his worde before the elder . plowd : casu . mines . fol. . b. & fol. . a. that a benefice by institution is not full against him . coke . digbies case , fol. . a. not to finde pledges for the persecuting of any action . for he cannot be amerced . fitzh . nat . br . fo . . f. & fo . . c. to siew in what court he will. fitzh . nat . br . f. . b. & . e. to siew the writ ne admittas after sixe monethes . regist . orig . fol. . a. that a mans villein hauing remained in his auncient demesn by the space of a yeare , may not be recouered by the writ ( de natiuo habendo ) fitzh . nat . br . fol. . a. to graunt an office with the ( babendum post mortem alterius ) dyer . fo . . nu . . to shorten the ordinary time of summons ( being . daies ) in writ of right . brit. ca. . to giue what honour or place he listeth to his subiects . anno . h. . ca. . to be owner of a forest . see forest . to haue free warren . see warren . not to be owted of his free hould . cromptons iustice of peace . fol. . b. & . a. to araigne a man being both a traitor , and a felon , rather vpon the treason , than vpon the felony , because he may haue the whole escheats . idem . eodem . fol. . a. to warrant the day of appearance to his subiect being in his seruice , and summoned to appeare at a day certaine . fitzh . nat . br . fol. . a. diuers of these and many others did belong ( fisco imperatorum ) which you may finde in the digest : de iure fisci . & co. lib. . tit . . besides these also many moe may be obserued to belong vnto our king out of lawes , which i leaue to their collection that are of longer reading , and more painefull industry . prerogatiue of the archbishop of canterbury , or yorke , ( prarogatiua archiepiscopi cantuariensis , seu eboracensis ) is an especiall preeminence , that these sees haue in certaine cases aboue ordinary bishops within their prouinces . and that of the archbishop of canterburie , principally consisteth of these points . first , in the confirmation of all elections made of bishops by the deane and chapter of all cathedrall churches , as also the consecration of them . next , in a power of visiting his whole prouince , of assembling synods , of supplying the defects and negligences of inferiour bishops , of receiuing appeales from their courtes , of assigning coadiutours to those bishops , that grow weake and insufficient to discharge their function , of appointing vicars generall to those that haue either none , or an insufficient man employed in that office : and of dispensing in all ecclesiasticall cases , wherein the lawes beare dispensation : of taking oath of euery bishop , at his confirmation , to performe canonicall obedience vnto the see of canterburie . but thes seem to belong vnto him by an ordinarie archiepiscopall authority . certaine other things there be , that appertaine vnto him more then ordinarily to other archbishops : as the originall calling of any person in any cause belonging to spirituall iurisdiction , out of any part of his prouince , though not appealed . but this point is now limited by the statute made , anno . henr. . ca. . the receyuing of an appeale from the lowest iudge ecclesiasticall within his prouince immediatly . the appointing of a keeper or guardian of the spiritualties during the vacancie of any bishopricke . by which means all episcopall rites of the dioces for that time do belong vnto him : as visitation , institution to benefices , and such like . the visitation of euery diocesse within his prouince , when & in what order it pleaseth him . as also of all other priuiledged churches . the probate of testaments and graunting of administrations , in case where the party deceased hath goods of any considerable valew out of the diocesse wherein he dyeth . and that valew is ordinarily fiue pounds , except it be otherwise by composition betweene the said archbishop , and some other bishop : as in the diocesse of london it is tenne pounds . the probate of euery bishops testament , or the administration of his goods dying intestate , though not hauing any goods , chatels , or debts without the compasse of his owne iurisdiction . the bestowing of any one dignitie or prebend in any cathedrall church vpon the creation of a new bishop , that himselfe thinketh good to make choice of . there may be more particulars of this prerogatiue , that i know not : but these may be sufficient to expresse the thing that i desire to declare . who so desireth to reade these more at large , and other priuiledges of this church in temporall maters , may resort to the booke intituled : de antiquitate britannicae ecclesia , & nominatim de priuilegiis ecclesia cantuariensis historia : and especially to the . chapter of the said booke . pa. . prerogatiue court , ( curia prerogatiuae archiepiscopi cantuariensis ) is the court wherein all wils be proued , and all administrations taken , that belong to the archbishop by his prerogatiue , which see in prerogatiue . and if any contention do grow betweene two or more touching any such will or administration , the cause is properly debated & determined in this court. the iudge of this court is called iudex curiae praerogatiuae cantuariensis . the archbishop of yorke hath also the like power and court , which is tearmed his exchequer , but farre inferiour to this in countenance and profite . prescription ( praescriptio ) is a course or vse of any thing for a time beyond the memory of man , as the exposition of the law terms doth define it . kitchin fol. . saith thus : prescription is , when for continuance of time , whereof there groweth no memory , a perticuler person hath perticuler right against another perticuler person . and custome is , where by continuance of time beyond memorie , diuers persons haue gotten a right : with whome agreeth sir edward cooke , lib. . fol. . a. and vsage is by continuance of time the efficient cause of them both , and the life of both prescription and custome . thus saith kitchin . but as in the ciuill lawe , so i think likewise in the common , prescription may be in a shorter time . as for example , where the satute anno , . h. . cap. . saith , that all actions popular must be siewed within three yeares after the offence committed , and the statute anno , . eiusdem . cap. . that foure yeares being past after the offence committed in one case , and one yeare in another , no suite can be commenced , and the statute . eliz. cap. . saith , ( by way of correcting the two former statutes ) that all actions , &c. brought vpon any statute , the penaltie whereof belongeth to the king , shall be brought within two yeares after the offence committed , or else be voide . and the satute , anno . eliz. cap. prim . & secund . saith , that actions brought after two yeare by any common person , or after three yeares by the king alone for decay of husbandry or tillage , shall bee of noe force . whosoeuer offendeth against any such statute , and doth escape vncalled for two yeares , or three yeares , in one case of the two later of these three statutes , may iustly be said to haue prescribed an immunitie against that action . the like may be said of the statute made anno . eliz. cap. prime . which saith , that all offences comprised in the statute made in the . yeere of eliz. cap. . are inquirable before both iustices of peace and of assise , within one yeare and a day , after the offence committed . also the title that a man obtaineth by the passing of fiue yeares after a fine acknowledged of any lands or tenements , may iustly be said to be obtained by prescription . and whereas the statute , anno . r. . cap. . saith , that a iudge or clerke convicted for false entring of plees , &c. may be fined within two yeares ; the two yeares being ended , he prescribeth against the punishment of the saide statute ; and whereas the statute anno . h. . saith , that he which will complaine of maintenance , or embracery , whereby periurie is committed by a iurie , must doe it within sixe dayes , those sixe daies ended , the parties prescribe : and whereas the statute anno prim . ed. . saith , that a man being not indicted within monethes of any offences there mentioned touching seruice and sacraments , he shal be cleare from thence forward : the three monethes being ended , he prescribeth : and the same may be said of the statute anno . ed. . cap. . which saith that a man shall not be indited of any offence there mentioned touching the decay of tillage , after . . yeares . and whereas it is ordeined by the statute anno . h. . cap. . that those which keepe possession of lands by force after . . yeares possession held by themselues & their auncestours , shall not be subiect to the arbitrement of disseisours there set down , i hould this a prescription likewise against those censures . v. anno . h. . ca. . lastly a seruant prescribeth liberty after a yeare . bracton . li. . ca. . nu . . and the right that is gotten in any stray to a lord of a maner , no man claiming it within the yeare and day after proclamation made , is an vsucapion , or prescription . see action perpetuall , and temporall . and see cromptons iustice of peace . fol. . b. vbi habebis festum . but see one rule for all in lamb. eirenarch . li. . ca. . pa. . of this prescription , and the learning touching the same , you may reade a solemne report in s. ed. cookes , and luttrels case . vol. . fo . . b. & seqq . presentation ( praesentatio ) is vsed properly for the act of a patron offering his clerke to the bishop , to be instituted in a benefice of his gift : the forme whereof see in the register originall fol. . a. presentment , is a meere denuntiation of the iurours themselues , or some other offices , as iustice , constable , searcher , surueiours &c. ( without any information ) of an offence inquirable in the court wherevnto it is presented . see lamberd eirenarcha , lib. . ca. . pa. . president ( praeses ) is vsed in the common law for the kings liuetenent in any prouince or function : as president of wales , of yorke , of barwick . president of the kings councell . anno . . h. . cap. . & anno . h. . cap. . & . preignotarie ( protonotarius ) is a word that seemeth to be made either of two french words ( prime ) or primier . i. primus ) and ( notaire . i. notarius , tabellio , or of two latine words ( prae ) & notarius ) quasi primus aut principalis notarius . the office is likewise borowed from the later romanes , who made his name of halfe greeke , and halfe latine , viz 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. primus , principalis ) and ( notarius ) . it is vsed in our common lawe for the cheife clerks of the kings courts , whereof . be of the common pleas , and one of the kings bench . for the pregnotarie of the commmon plees , anno . h. . cap. . is termed the cheife clerke of that court . he of the kings bench recordeth all actions civile siewed in that court , as the clerke of the crowne office doth all criminall causes . those of the common plees doe enter and inrolle all maner of declarations , pleadings , assises , and iudgements : and all actions , the same terme that the apparence is made . also they make out all iudiciall writs , as the venire facias after issues ioyned , and habeas corpus , for the bringing in of the iurie , after it is returned vpon the venire facias . they also make forthe writs of executions , and ofseisin , writs of supersedeas , for appearance to exigents , as well as the exigents , and writs of priuiledges , for remouing of causes from other inferiour courts of record , in case where the partie hath cause of priuiledge : also writs of procedendo , of scire facias in all cases , and writs to inquire of dammages : and all proces vpon prohibitions , and vpon writs of audita querela , and false iudgement . finally they inrolle all recognisances acknowledged in that court , and all common recoueries : and may make exemplifications of any record the same terme , before the rols be deliuered from them . prender , commeth of the french ( prendre . i. accipere , acceptare , capere , prehēdere ) it signifieth in our common lawe sometime a power , or right to take a thing before it be offered : as such things as lie in prender , or such as lie in render . west . parte . titula fines . sect . . where you haue these words : if the lord graunt the seruices of his tenent by fine , or otherwise , the lord before atturnment , shall haue such things as lie in prender : as the ward of the body of the heire and of the land : escheats , &c. but not such things as lie in prender , as rents , and releifes , heriots and other seruices . for he canot avowe for them before the atturnment . prender de baron , signifieth literally in barbarous french to take a husband : but it is vsed in our common lawe , as an exception to disable a woman from persiewing an appeale of murder against the killer of her former husband , stawnf . pl. cor . li. . cap. . the reason whereof whether it be , because by her secōd mariage , she may iustly be thought to haue giuen vp the interest shee had in her former husband , or for that shee is now couert againe , or for both , i leaue to consideration . prender del profits , signifieth verbatim to take the profits . it signifieth substantiuely the taking of the profits . see cromptons iurisdict . fol. . see pernour of profits . prest , is vsed for some dutie in money to be paide by the shyreeue vpon his accoumpt in the exchequer , anno . & . ed. . cap. . prest mony , is so called of the french word ( prest . i. explicatus , promptus , expeditus ) for that it bindeth those , that haue receiued it , to be ready at all times appointed . primage , is a dutie due to the mariners and saylers for the loading of any shippe at the setting forth from any hauen , anno . h. . cap. . primier seisin ( prima seisina ) ad verbum signifieth the first possession . it is vsed in the common lawe , for a braunch of the kings prerogatiue , whereby he hath the first possession of all lands , and tenements through the realme , holding of him in cheife , whereof his tenent died seised in his demesn as of fee ; and so consequently the rents , and profits of them , vntill the heire , if he be of age , doe his homage , if he be vnder yeares , vntill he come to yeares . see stawnf . prarog . cap. . and bracton lib. . tract . . cap. pri . primo beneficio . see beneficio . prince ( princeps ) is a french word , and taken with vs diuersly , sometime for the king himselfe , but more properly for the kings eldest sonne , who is prince of wales , as the eldest sonne to the french king is called dolphine , both being princes by their natiuitie . m. fearn in the glory of generositie . pag. . for edward the first to appease the tumultuous spirits of the welch men , who being the auncient indigenae of this land , could not in long time beare the yoke of vs , whome they call strangers , sent his wife being with childe into wales . where at carnaruan shee was deliuered of a sonne , therevpon called edward of carnarvan and afterward asked the welch men , seing they thought much to be gouerned by straungers , if they would be quietly ruled by one of their owne nation ; who answering him , yea : then ( quoth he ) i will appoint you one of your owne country men , that cannot speake one word of english , and against whose life you can take no iust exception : and so named vnto them his sonne borne in carnarvan not long before . from which time it hath continued , that the kings eldest sonne ( who was before called : lord prince , stawnf . praerog : cap. . fol. . ) hath beene called prince of wales : stowes annals , pag. . see anno . h. . cap. . & anno . eiusdem , cap. . principality of chester . anno . rich. . cap. . see cownty palatine . and cromptons diuers iurisdictions , fol . prior perpetuall , or datife and removeable . anno . r. . cap. . and anno . ed. . cap. . paulo ante finem . lord prior of saint iohns of ierusalem , anno . h. . cap. . priors aliens ( priores alieni ) were certaine religious men borne in fraunce , and gouerners of religious houses erected for out-landish men here in england : which were by henry the fifth thought , no good members for this land , after such conquest obtained by him in fraunce , and therfore suppressed . whose liuings afterwards by henry the . were giuen to other monasteries and houses of learning . stowes annals . pag. . see anno . h. . cap. . but especially to the erecting of those two most famous colledges called the kings colledges of cambridge and eton. prioritie , ( prioritas ) signifieth in our common lawe , an antiquitie of tenure in comparison of another not so auncient . as to hold by prioritie , is to hold of a lord more aunciently then of another . old . nat . br . fol. . so to hold in posterioritie , is vsed by stawnf . praerog . cap. . fo . . and crompton in his iurisdiction . fol. . vseth this word in the same signification . the lord of the prioritie shal haue the custodie of the bodie , &c. fol. . if the tenent hold by prioritie of one , and by posterioritie of another , &c. to which effect , see also fitz. nat . br . fol. . f. bartolus in his tractate , de insigniis & armis , vseth these very wordes , prioritas , and posterioritas , concerning two that beare one coate armor . prisage , seemeth to be that custome or share , that belongeth to the king out of such merchandize , as are taken at sea , by way of lawfull prize , anno eliz. cap. . prisage of wines , anno i. h. . cap. . is a word almost out of vse , now called butlerage , it is a custome wherby the prince chalengeth out of euery barke loaden with wine , containing lesse then forty tunne , two tunne of wine at his price . prise ( prisa ) commeth of the french ( prendre . i. capere ) it signifieth in our statutes , the things taken by pourveyours , of the kings subiects . as anno . ed. . cap. . & anno . eiusdem . stat . . cap. . it signifieth also a custome due to the king , anno . eiusdem cap. . regist . origin . fol. . b. prisoner ( priso ) commeth of the french ( prisonnier ) and signifieth a man restrained of his libertie vpon any action ciuill or criminall , or vpon commaundement . and a man may be prisoner vpon matter of record , or mater of fact : prisonervpon mater of record is he , which being present in court , is by the court committed to prison , only vpon an arrest , be it of the shyrecue , censtable , or other . stawnf . pl. cor . lib. prim . cap. . fol. . & . prinie , commeth of the french ( priuè . i. familiaris ) and significth in our common lawe , him that is partaker , or hath an interest in any action , or thing : as , priuies of bloud , old nat . br . fol. . be those that be linked in consanguinitie . eucry heire in tayle is priuy to recouer the land intayled . eodem fol. . no priuitie was betweene me and the tenent . litleton , fol. . if i deliuer goods to a man to be caried to such a place , and he , after he hath brought them thither , doth steale them , it is felenie : because the priuitie of deliuerie is determined , as soone as they are brought thither . stawn . pl. cor . lib. prim . cap. . fol. . merchants priuie be opposite to merchant straungers . anno . ed. tertii . cap. . & cap. . & ann . eiusdem , stat . . cap. . the newe expositour of lawe termes maketh diuers sorts of priuics : as priuies in estate , priuies in deed , priuics in lawe , priuies in right , and priuies in bloud . and see the examples he giueth of euery of them . see perkins conditions . . . . and sir edward cooke lib. . walkers case . fol. . a. & lib. . fol. . b. & . a. where he maketh foure kindes of priuies , viz. priuies in bloud , as the heire to his fathes , &c. priuies in representation , as executours or administratours to the deceased : priuies in estate , as he in the reuersion , and he in the remainder , when land is giuē to one for life , and to another in see : the rcason is giuen by the expositour of lawe termes , for that their estates are created both at one time . the fourth sort of priuies are priuies in tenure : as the lord by escheate : that is , when the land escheateth to the lord for want of heires , &c. priuie seale ( priuatum sigillum ) is a scale that the king vseth some time for a warrant , whereby things passed the priuy signet and brought to it , are sent farder to be confirmed by the great seale of england : sometime for the strength or credit of other things written vpon occasions more transitory and of lesse continuance , then those be that passe the great seale . priuiledge ( priuilegium ) is defined by cicero in his oration pro domo sua , to be lex priuata homini ●●ogata . frerotus in paratitlis ad titulum decretalium de priuilegiis , thus defineth it : priuilegium est ius singulare , hoc est priuata lex quae vni homini , vel loco , vel collegio , & similibus aliis concedit ur : cap. priuilegia , distinct : . priua enim veteres dixere que nos singula dicimus . insit agellius lib. . ca. . ideoque priuilegia modò beneficia , modò personales constitutiones dicuntur , &c. it is vsed so likewise in our common law , and sometime for the place , that hath any speciall immunity . kitchin fol. . in the words : where depters make sained gifts and feofements of their land , and goods to their freinds , and others , and betake themselues to priuiledges , &c. priuiledge is either personall , or reall : a personall priuiledge is that , which is graunted to any person , either against , or beside the course of the common law : as for example , a person called to be one of the parlament , may not be arrcsted either himselfe , or any of his attendance , during the time of the parlament . a priuiledge reall is that , which is graunted to a place , as to the vniuersities , that none of either may be called to westm . hall , vpon any contract made within their owne precincts . and one toward the court of chauncery , cannot originally be called to any court but to the chauncery , certaine cases excepted . if he be , he will remoue it by a writ of priuiledge grounded vpon the statute anno . ed. . see the new booke of entries . verbo priuilege . probat of testaments ( probatio testamentorum ) is the producting , and insinuating of dead mens wils before the ecclesiasticall iudge , ordinary of the place , where the party dyeth . and the ordinary in this case is knowne by the quantity of the goods , that the party deceased hath out of the dioces , where he departed . for if all his goods be in the same dioces , then the bishop of the dioces , or the archdeacon ( according as their composition , or prescription is ) hath the probate of the testament : if the goods be dispersed in diuers dioces , so that there be any summe of note ( as fiue pounds ordinarily ) out of the dioces where the party let his life : then is the archbishop of canterbury the ordinary in this case by his prerogatiue . for whereas in ould time , the will was to be proued in cuery dioces , wherein the party diceased had any goods : it was thought conuenient both to the subiect , and to the archiepiscopall see , to make one proofe for all before him , who was and is of all the generall ordinary of his prouince . but there may be aunciently some composition betweene the archebishop and an inferiour ordinary , whereby the summe that maketh the prerogatiue , is abouc fiue pound . see praerogatiue of the archbishop . this probate is made in two sorts either in common forme or pertestes . the proofe in common forme , is onely by the oath of the exceutour , or party exhibiting the will , who sweareth vpon his credulity , that the will by him exhibited , is the last will , and testament of the party deceised . the proofe per testes is , when ouer and beside his oath , he also produceth witnesses or maketh other proofe , to confirme the same , and that in the presence of such as may pretend any interest in the goods of the deceased , or at the least in their absence , after they haue beene lawfully summoned to see such a will proued , if they thinke good . and the later course is taken most commonly , where there is feare of strife , and contention betweene the kindred and freinds of the party deceased about his goods . for a will proued only in common forme , may be called into question any time within . yeares after by common opinion , before it worke prescription . procedendo , is a writ whereby a plee , or cause formerly called from a base court to the chaūcerie , kings bench , or commō plees , by a writ of priuiledge or certiorare , is released , and sent downe againe to the same court , to be proceded in there , after it appeareth that the defendant hath no cause of priniledge ; or that the mater comprised in the bille , be not well proned . brooke hoctitulo . and termes of lawe : cooke vol. . fol. . a. see anno . . r. . cap. . in fine , leters of procedendo graunted by the keeper of the priuie scale . see in what diuersitie it is vsed in the table of the originall register , and also of the iudiciall . proces ( processus ) is the maner of proceeding in euery cause , be it personall , or reall , ciuile , or criminall , even from the originall writ to the end . britton fol. . a. where in there is great diuersitie , as you may see in the table of fitzh . br . verbo proces , and brookes abridgement , hoc titulo . and whereas the wtitings of our common lawyers sometime call that the proces , by which a man is called into the court and no more : the reason thereof may be giuen , because it is the beginning , or the principall part thereof , by which the rest of the busines is directed , according to that saying of aristotle . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . diucrs kinds of proces vpon inditements before iustices of peace : see in cromptons iustice of peace . fol. . b. . . but for orders sake , i referre you rather to m. lamberd in his tractat of ptocesses adioyned to his eirenarcha , who acording to his subiect in hand , diuideth criminall proces , either into proces touching causes of treason , or selonie , and proces touching inferiour offēces . the former is vsually a capias , capias aliâs , & exigi facias . the second is either vpon enditement , or presentment , or information : that vpon enditement or presentment , is all one , and is either generall , and that is a venire facias ' , vpon which if the partie be returned sufficient , then is sent out a distringas infinite vntill he come : if he be returned with a nibil habet , then ifsueth out a capias , capias aliâs , capias pluries , and lastly an exigifacias . the speciall proces is that , which is especially appointed for the offēce by statute . for the which he referreth his reader to the . chapter of his . booke being very different . processium continuando , is a writ for the continuance of a proces after the death of the cheife iustice , in the writ of oyer and terminer . register originall . fol. . a. prochein amy ( proximus amicus , vel propinquior ) is , word for word , a neere freind . it is vsed in our common lawe , for him that is next of kinde to a childe in his nonage , and is in that respect allowed by lawe , to deale for him in the managing of his affaires : as to be his gardian , if he hold of any in socage , and in the redresse of any wrong done vnto him , be it by his gardian , if he be ward and hold in chiualrie , or any others . statut. west . pri . cap. . . ed. pri . and westm . . cap. . anno . ed. pri . profe , aliâs prove , is vsed for an enquest . anno . ed. . cap. . proclamation ( proclamatio ) signifieth a notice publikely giuen of any thing , whereof the king thinketh good to advertise his subiects . so it is vsed , anno . rich. . ca. . proclamation of rebellion is a publike notice giuen by the officer , that a man not appearing vpon a sub poena , nor an attachment in the starre chamber or chauncerie , shal be reputed a rebell , except he render himselfe by a day assigned . cromptons iurisd . fol. . see commission of rebellion . proclamation of a fine , is a notice openly , and solemnly giuen at all the assises , that shall be holden in the countie within one yeare after the ingrossing of the fine , and not at the foure generall quarter sessions . and these proclamations be made vpon transcripts of the fine , sent by the iustices of the common plees , to the iustices of assise , and the iustices of peace . west . parte . symbol . titulo fines . sect . . where also you may see the forme of the proclamarion . proclamare est palā , & valde clamare , vsed by tullie , liuie , and the civilians . Π. quibus ad liberta proclamare non licet . and proclamator signifieth him qui litem intendit , vel causam agit . cicero de oratore . lib. pri . non enim causidicum nescio quem , neque proclamatorem , aut rabulam hoc sermone conquirimus , &c. i reade in fitzh . nat . br . fol. . c. that the kings proclamation is sufficient to stay a subiect from going out of the realme . see the force of proclamations . anno . . h. . cap. . see also proclamations in diuers cases . newe booke of enteries . verbo proclamation . procters of the clergie ( procuratores cleri ) are those which are chosen and appointed to appeare for cathedrall , or other collegiat churches , as also for the common clergie of euery dioces , at the parlament , whose choice is in this sort . first , the king directeth his writ to the archebishop of each province for the summoning of all bishops , deanes , archdeacons , cathedrall and collegiat churches , and generally of all the clergie of his prouince , after their best discretion and iudgement , assigning them the time and place in the said writ . then the archebishops proceede in their accustomed course . one example may serue to shew both . the archebishop of canterbury vpō his , writ receiued , directerh his leters to the bishop of london as his deane provincial . . § . statuimui . de poenis & verb. tanquam in glos . first citing himselfe petemptorily and then willing him to cite in like maner all the bishops , deanes , archedeacons , cathedrall and collegiate churches , and generally all the clergie of his prouince to the place , and against the day prefixed in the writ . but directeth withal that one proctor sent for euery cathedrall or collegiat church , and two for the bodie of the inferiour clergie of each diocesse , may suffice . and by vertue of these leters authentically sealed , the said bishop of london directeth his like leters seuerally to the bishop of euery diocesse of the prouince , citing them in like sort ▪ and commaunding them not onely to appeare , but also to admonish the said deanes , and archdeacons , personally to appeare , and the cathedral 〈…〉 and collegiat churches , as also the common clergie of the diocesse , to send their proctors to the place , and at the day appointed : and also willeth them to certifie the archbishop the names of all and euery so monished by them , in a shedule annexed to their leters certificatorie . the bishops proceed accordingly , and the cathedrall and collegiate churches as also the clergie make choice of their proctors : which done , and certified to the bishop , he returneth all answerably to his charge at the day . these proctors of the clergie , howsoeuer the case of late dayes is altered , had place and suffrage in the lower house of parlament , as well as the knights , citizens , barons of the cinque ports , and burgesses . for so it plainely appeareth by the statute , anno . r. . cap. . & cap. . and sithence they were remooued , the church hath daily growne weaker and weaker : i pray god that in short time she famish not , but that her liberties be better maintained . procurator , is vsed for him that gathereth the fruites of a benefice for another man. anno . r. . stat . . cap. . and procuracy is vsed for the specialtie , whereby he is authorized . ibid. they are at this day in the west parts called proctors . profer ( profrum vel proferum ) is the time appointed for the accompts of shyreeues , and other officers in the exchequer , which is twice in the yeare , anno . h. . statut . quint. and it may be gathered also out of the register , fol. . in the writ de atturnato vicecomitis pro profro faciendo . i reade also of profers , anno . h. . cap. . in these words : trinitie terme shall beginne the monday next after trinity sunday , whensoeuer it shall happen to fall , for the keeping of the essoins , profers , returnes , and other ceremonies heretofore vsed and kept . in which place ( profer ) seemeth to signifie the offer , or indeauour to proceede in action by any man , whom it concerneth so to doe . see briton . cap. . fol. . b. & . a. & fol. . b. and eleta lib. . cap. . § . vtlagati & seqq . profer the halfe merke . see halfe merke . profession ( professio ) is in the common lawe , vsed particularly fot the entring into any religious order of friars , &c. new booke of ▪ entries , verbo profession . profits apprender . see prender . prohibition , ( prohibitio ) is a writ framed for the forbidding of any court , either spirituall or secular , to proceed in any cause there depending , vpon suggestion , that the cognition thereof belongeth not to the said court . fitz. nat . br . fol. . g. but is most vsually taken , especially in these dayes , for that writ , which lyeth for one that is impleeded in the court christian , for a cause belonging to the temporall iurisdiction , or the cognisance of the kings court , whereby as well the partie and his councell , as the iudge himselfe , and the register , are forbidden to proceed any farder in that cause : for that it appertaineth to the disinheriting of the crowne of such right as belongeth vnto it . in how many cases this lyeth , see ▪ broke , hoc titulo , and fitz. na . br . fol. . & seqq . this writ , and the praemunire , might in these daies well be spared : for they were helpes to the kings inheritance and crowne , when the two swords were in two diuers hands . whereas now both the iurisdictions being setled in the king , there is small reason of either , except it be to weatie the subiect by many quircks and delayes , from obtaining his right ▪ of this prohibition , you may reade bracton also , lib. . tract . . cap. . . . . . . . . . . who saith , that it lyeth not after sentence giuen in any cause , howsoeuer the case is altered : and againe , the statute made , anno . ed. . which ordaineth , that aboue one prohibition should not lye in one cause . see the diuersitie of prohibitions in the table of the original regist . see the new booke of entries , verbo , prohibition , and fitz. nat . br . fol. . prohibitio de vastodirecta parti , is a writ iudiciall directed to the tenent , and prohibiting him from making waste vpon the land in controuersie , during the suite . register iudiciall . fol. . it is sometime made to the shyreeue , the example whereof you haue there next following . pro indiuiso , is a possession , and occupation of lands , or tenements belonging vnto two or more persons , whereof none knoweth his seuerall portion , as coparceners before partition . bracton lib. . tracta . . cap. pri . nu . . prolocutour of the conuocation house ( prolocutor domus conuocationis ) is an officer chosen by persons ecclesiasticall publiquely assembled by the kings writ at euery parlament . and as there be two houses of conuocation , so be there two prolocutours , one of the higher house , the other of the lower house , who presently vpon the first assembly is by the motion of the bishops , chosen by the lower house , and presented to the bishops for their prolocutour , that is , the man by whom they meane to deliuer their resolutions to the higher house , and to haue their owne house especially ordered and gouerned . his office is to cause the clerk to call the names of such as are of that house when he seeth cause , to cause all things propounded to be read by him , to gather the suffrages , and such like . promoters ( promotores ) be those , which in popular and penall actions doe deferre the names , or complaine of offenders , hauing part of the profit for their reward . these were called among the romaines quadruplatores , or delatores . they belong especially to the exchequer and the kings bench . smith de repub : anglo . li. . cap. . pro partibus liberandis , is a writ for the partition of lands betweene coheires . register originall , fol. . prophecies ( prophetia ) be in our common law , taken for wiserdly foretellings of maters to come , in certaine hidden and enigmaticall speeches . whereby it falleth out many times , that great troubles are stirred in our common wealth , and great attempts made by those , to whom the speach framed , either by the description of his cognisance , armes , or some other quality , promiseth good successe anno . . ed. . cap. . & anno . eiusdem . cap. . & anno . eliza. ca. . but these for distinctions fake are called false , or phantasticall prophecies . property ( proprietas ) signifieth the highest right that a man hath or can haue to any thing , which is no way depending vpon any other m●ns courtesie . and this none in our kingdome can be said to haue in any lands , or tenements , but onely the king in the right of his crowne . because all the lands through the realme , are in the nature of fee , and doe hould either mediately or immediately of the crowne . see fee. this word neuerthelesse is in our common law , vsed for that right in lands and tenements , that common persons haue , because it importeth as much as ( vtile dominium ) though not ( directum ) . proprietate probanda , is a writ . see the originall regist . fol. . a. & . b. it lyeth for him , that will proue a propertie before the shyreeue . brookes propertie , . for where a propertie is alledged , a replegiare lyeth not . idem ibidem . proprietarie ( proprietarius ) is he that hath a propertie in any thing but it is most notoriously vsed for him , that hath the fruites of a benefice , to himselfe and his heires or successours , as in time past abbots and priors had to them and their successours . see appropriation . prorata portionis . see onerando pro rata portionis . protection ( protectio ) hath a generall and a speciall signification . in the generall it is vsed for that benefite and safetie , that euery subiect , or denizen , or alien specially secured , hath by the kings lawes and thus it is vsed , anno . ed. tertii . capite . . protection in the speciall signification is vsed for an exemption , or an immunitie giuen by the king to a person against suites in lawe , or other vexations vpon reasonable causes him thereunto moouing , which i take to be a braunch of his prerogatiue . and of this protection , fitzh . maketh two sortes in his nat . br . fol. . the first forme or sort he calleth a protectiō , cum clausula volumus , wherof he mentioneth foure particulars . a protection , quia profecturus , for him that is to passe ouer sea in the kings seruice : a protection , quia moratur , for him that is abroad in the kings seruice vpon the sea , or in the marches , anno . h. . cap. . a protection for the kings debter , that he be not siewed or attached vntill the king be payed his debt . see anno . ed. . this some ciuilians call moratoriam : which see in singularibus marantae , verb. princeps . pag. . col . . and a protection in the kings seruice beyond the seas , or on the marches of scotland : whereof you may reade something , anno . r. . cap. . see the regist . orig . fol. . and britton , cap. . the second forme of protection is tearmed cum clausula , nolu 〈…〉 which is graunted most commonly to a spirituall company for their immunitic from taking of their catell by the kings ministers . but it may be graunted also to one man spirituall or temporall . of these things reade the same authour : and the formes of these writs . see also in the register originall . fol. . & . and see the new expositour of lawe termes , to what action the kings protection doth not extend . see also the new booke of entries , verbo protection . protonotarie , ( protonotarius . ) see preignetarie . protestation , ( protestatio ) is ( as iustice walsh defineth it ) a defence or safegard to the partie , which maketh it from being cōcluded by the act he is about to doe , that issue cannot be ioyned vpon it , plowden . fol. . b. whereof see the register original . fol. . b. and see protest . protest , ( protestari ) hath two diuers applications : one is by way of cautell , to call witnesse ( as it were ) or openly to affirm , that he doth either not at all , or but after a sort yeeld his consent to any act , as vnto a proceeding of a iudge in a court , wherein his iurisdiction is doubtfull , or to answer vpon his oath farder then he by lawe is bounde . see plowden . casu gresbroke . fol. . b. and the register orig . fol. . b. another is by way of complaint to protest a mans bill : for example , if i giue mony to a merchant in fraunce , taking his bill of exchange to be repayed in england , by one to whome he assigneth me , if at my comming i find not my selfe satisfied to my contentment , but either delayed or denyed : then i goe into the burse , or some open concurse of merchants , and protest that i am deceiued by him . and thereupon if he haue any goods remaining in any mans hands within the realme , the lawe of merchants is , that i be paid out of them . prouuer ( probator ) see approuuer . anno . h. . ca. . see approuours . prouince ( prouincia ) was vsed among the romans for a country without the compasse of italie , gained to their subiection by the sword . wherevpon the part of fraunce next the alpes was soe called of them , when it was in their dominion , and of that carieth the same name at this present : but with vs a province is most vsually taken for the circuit of an archebishops iurisdiction , as the province of canterbury , and the province of yorke . anno . h. . cap. . & anno . eiusdem , cap. . yet it is vsed diuers times in our statutes for seuerall parts of the realme . provinciall ( prouincialis ) is a cheife gouernour of an order of friers , anno quar . henr. quar . cap. . protoforestarius , was he whom the auncient kings of this realme made chiefe of winsour forest , to heare all causes of death , or mayhem , or of slaughter , or of the kings deare within the forest . camd. britan. pag. . see iustice of the forest . prove . see profe . prouision ( provisio ) is vsed with vs , as it is vsed in the canon lawe , for the providing of a bishop , or any other person of an ecclesiasticall liuing , by the pope , before the incumbent be dead . it is also called gratia expectatiua , or mandatum de providendo . the great abuse whereof in the pope through all christendome heretofore , you may read , not only in duarenus de sacris ecclesiae ministoriis , & beneficiis . lib. . cap. . but also for england particularly , in diuers statuts of the realme . viz. anno . . ed. . cap. sttat . . & statu . . commonly called the statute de prouiscribus . & . anno . . eiusdem . cap. i. & anno . eiusdem . stat . . cap. . & . . . & anno . eiusdem , & anno . rich. . cap. . & anno . eiusdem cap. . & anno . . eiusdem . cap. . & anno . eiusdem , cap. . & anno . eiusdem , stat . . cap. . & . & anno . eiusdem cap. . & anno . h. . cap. . & . & anno . eiusdem , cap. pri . & anno . eiusdem , cap. . & . & anno . eiusdem , cap. . & anno . h. . cap. . see praemunire . provisour ( provisor ) is he that sieweth to the court of rome for a prouision . old . nat . br . fol. . see provision . proviso , is a condition inserted into any deede , vpon the obseruance wherof the validitie of the deede consisteth , which forme of condition seemeth to be borrowed from fraunce . for ( pourve u gallicum semper conditionem inducit . tiraquel . tomo . . pag. . our common lawyers say that it sometime signifieth but a couenant , whereof you haue a large disdispute in the . booke of sir ed. cokes reports in the lord cromwels case . it hath also another signification in maters iudiciall : as if the plaintife or demaundant desist in prosecuting an action , by bringing it to a triall , the defendant or tenent may take out the venire facias to the shyreeue : which hath in it these words , prouiso quòd , &c. to this ende , that if the plaintife take out any writ to that purpose , the shyreeue shall summon but one iurie vpon them both . see old natura breuium in the writ nisi prius . fol. . purchas . see pourchas . purfles of a womans growne . anno . h. . cap. . purgation ( purgatio ) is a cleering of a mans selfe from a crime , whereof he is probably and publiquely suspected , and thereof denounced to a iudge . of this there was great vse in england touching maters of felonie imputed to clerks in former time , as appeareth by stawnf . pl. cor . lib. . cap. . see clergie . it is still obserued for mater pertaining to the ecclesiasticall court , as suspicion , or common fame of incontinencie , or such like . purgatio is either canonicall ( canonica ) or vulgar ( vulgaris ) canonicall is that which is prescribed by the canon lawe : the forme whereof is vsuall in the spirituall courte , the man suspected taking his oath that he is cleere , of the fault obiected , and bringing so many of his honest neighbours , being not aboue twelue , as the court shall assigne him , to sweare vpon their consciences and credulitie that he sweareth truly , or hath taken a true oath . vulgar purgation was by fire , or water , or by combat , vsed by infidels , and christians also , vntill by the canon lawe it was abolished , tit . . de purgatione can. & vulga . in decretalibus . combat , though it be lesse in vse then it was , yet is it , and may be still practised by the lawes of the realme , in cases doubtfull , if the defendant chuse rather the combat then other triall . see ordel. see combat . purlue , is all that ground neere any forest , which being made forest by henry the second , richard the first , or king iohn , were by perambulations graunted by henry the third , seuered againe from the same . manwood . parte . of his forest lawes . cap. . and he calleth this ground either pourallee . i. perambulationem , or purlieu . and purluy , which he saith be but abusiuely taken for pourallee . vbi supra . nu . . but with the licence of that industrious and learned gentleman , i am bold to say , that this word may be no lesse fitly made of two french words ( pur . i. purus ) and ( lieu . i. locus ) and my reason is , because that such grounds as were by those kings subiected to the lawes , and ordinances of the forest , are now cleered and freed from the same : for as the ciuilians cal that purum locum , qui sepulchrorum religioni non est obstrictus . § . . de rerum divis . in institut . so , no doubt , in imitation of that very point , our auncestours called this purlieu , id est , purum locum , because it was exempted from that seruitude or thrauldom , that was formerly laid vpon it . so ( ager purus est , qui neque sacor , neque sanctus , neque religiosus , sed ab omnibus huiusmodi nominibus vacare videtur . l. . § . . 〈◊〉 . de religio . & sumptibus funerum . ) and therefore m. cromptons purraile is not much amisse fol. . of his iurisd . because we may also deriue it from the french words ( pur ) and ( allee ) that is as much to say , as a cleere , or a free walke or passage . and where it is sometime called pouralee , that may and doth come from ( pur ) and ( allee ) i. itio , profectio , ambulatio ) because he that walketh or courseth within that compasse , is cleere enough from the lawes , or penalties incurred by them , which hunt within the precincts of the forest . see the stat . anno . ed. pri . stat . . pourlie man , is he that hath groūd within the purlieu , and being able to dispend . shillings by the yeare of free hould , is vpon these two points licensed to hunt in his owne purlieu . manwood . parte pri . of his forest lawes . pag. . & . but what obseruations he must vse in his hunting , see him pag. . . see him likewise parte . cap. . nu . . . . &c. see purlieu . purpresture . see pourpresture . pursey , anno . elizabeth . cap. . purswivant . see poursuivant . purveyours . see pourveyours . pyker , alias pycar , a kind of shippe . anno . ed. . stat. . cap. . q qvadragesima , is the first sonday in lent , so called ( as i take it ) because it is the fourtith day before easter . the sonday before that is quinquagesima , the second before sexagesima , the . septuagesima . quae plura , is a writ , that lieth where an inquisition hath beene made by the escheatour in any countie , of such lands or tenements , as any man died seised of , and all that was in his possession be not thought to be found by the office . the forme whereof see in the register originall , fol. . and in fitzh . nat . br . fol. . it differeth from the writ called melius inquirendo , as fitz. there saith , because this is granted , where the escheatour formerly proceeded by vertue of his office : and the other , where he found the first office by vertue of the writ called , diem clausit exeremum . see the newe booke of entries . verbo . quae plura . quaerens non invenit plegium . is a returne made by the shyreue vpon a writ directed vnto him with this condition inserted . si a fecerit b. securum de loquela suae prosequenda , &c. fitzh . nat . br . fol. . o. quae seruicia , is a writ . see per quae servitia . quale ius , is a writ iudiciall , that lieth where a man of religion hath iudgement to recouer land , before execution be made of the iudgement . for this writ must betweene iudgement and execution , goe forth to the escheatour , to inquire whether the religious parson hath right to recouer , or the iudgement is obteined by collusion betweene the demaundant and the tenent , to the intent the true lord be not defrauded . see westm . . cap. . cum virireligiosi , &c. the forme of this writ you may haue in the register iudiciall , fol. . . . & . and in the old . nat . br . fol. . see the newe boke of entries . verbo . qualeius . quare eiecit infra terminum , is a writ , that lieth for a leassee , in case where he is cast out of his ferme before his terme be expyred , against the feoffee of the leassour , that eiecteth him . and it differeth from the eiectione firmae , because this lyeth : where the leassour after the lease made , infeoffeth another , which eiecteth the leassee . and the eiectione firma lieth against any other straunger , that eiecteth him . the effect of both is all one : and that is to recouer the residue of the terme . see fitzh . nat . br . fol. . see the register originall , fol. . and the newe booke of entries . verbo . quare eiecit infra terminum . quare impedit , is a writ , that lyeth for him , who hath pourchased a maner with an advousen thereunto belonging , against him that disturbeth him in the right of his advowsen , by presenting a clerk thereunto , when the church is voide . and it differeth from the writ called ( assisa vltimae praesentationis ) because that lieth , where a man or his auncestours formerly presented , and this for him , that is the pourchasour him selfe . see the expositour of the termes of law , and owld nat . br . fol. . bracton . lib. . tracta . . cap. . britton cap. . and fitzh . nat . br . fol. . and the register originall . fol. . where it is said that a quare impedit is of a higher nature , then assisa vltimae praesentationis ; because it supposeth both a possession and a right . see at large the newe booke of entrise . verbo . quare impedit . quare incumbrauit , is a writ , that lyeth agaiust the bishop , which within sixe monethes after the vacation of a benefice , conferreth it vpon his clerke , whilest two others be contending in law for the right of presenting . exposition of the terms of law , old . nat . br . fol. . and fitzh . nat . br . fol. . register originall . fol. . quare intrusit matrimonio non satisfacto , is a writ that lyeth for the lord against his tenent being his ward , that after couenable mariage offered him , marieth another , and entreth neuer the lesse vpon his land , without agreement first made with his lord and gardian . terms of the law . quare non permittit , is a writ that lyeth for one that hath right to present for a turne against the proprietary . fleta . lib. . cap. . quarentine ( quarentina ) is a benefit allowed by the lawe of england , to the widow of a landed man deceased , whereby shee may challenge to continue in his capitall messuage , or cheife mansion house , by the space of . daies after his decease . of this see bracton lib. . cap. . and if the heire , or any other attempt to eiect her , shee may haue the writ de quarentina habenda . fitzh . nat . br . fol. . see anno . h. . cap. . & anno . cap. pri . and britton . cap. . m. skene de verborum significatione . verbo quarentina viduarum , deriueth this word from the french quaresme . who also haue this custome called lo quaresme des vefues granted to widows after the decease of their husbands : as he proueth out of papon in his arrests libro . titulo des dots . cap. . & lib. . tit . substitutiones cap. . of this read fleta also lib. . cap. . quarentena habenda , is a writ , that lyeth for a widow to inioy her quarentine . register originall . fol. . quare non admisit , is a writ , that lyeth against the bishop refusing to admit his clerk , that hath recouered in a plee of aduowsen . the furder vse whereof see in fitzh . nat . br . fol. . & register originall : fol. . see the new booke of entries . verbo quare non admisit . quare obstruxit , is a writ , that lyeth for him who hauing a seruitude to passe through his neighbours ground , cannot inioy his right , for that the owner hath so strengthened it . fleta : li. . cap. . § . item si minus . quarter sessions , is a court held by the iustices of peace in euery countie , once euery quarter . the iurisdiction whereof how farre it extendeth , is to be learned out of m. lamberds eirenarcha . sir thomas smith de republ. anglor . lib. . ca. . but to these you must adde the late statutes of the realme , for their power daily increaseth . originally it seemeth to haue bene erected onely for maters touching the peace . but in these daies it extendeth much farder . that these sessions shold be held quarterly , was first of all ordeined ( so farre as i can learne ) by the statute anno . ed. . stat . pri . cap. . of these read lamberds eirenarcha the fourth booke throughout , where he setteth them out , both learnedly , and at large . quashe ( quassare ) commeth of the french ( quasser . i. quassare , conquassare ) it signifieth in our common law to ouerthrowe , bracton lib. . tracta . . cap. . nu . . quekbord , anno . ed. . ca. . que est mesme , signifieth verbatim . which is the selfe same thing . it is vsed in our common law as a word of art in an action of trespas , or of like nature , for a direct iustification of the very act complained of by the plaintffe as a wrong . for example , in an action of the case , the plaintiffe saith that the lord threatned his tenents at will in such sort , as he draue them to giue vp their tenures . the lord for his defence pleadeth , that he said vnto them , that if they would not depart , he would siew them as the law would . this being the same thretning that he vsed , or , to speake artificially , que est le mesme the defence is good . of this see kitchin in the chapter . que est le mesme . fol. . where you may haue many like examples . que estate , word for word , signifieth , quem statum : it signifieth in our common law , a plee whereby a man intitling another to lands , &c saith that the same estate that he had , himselfe hath from him : for example , in a quare impedit the plaintife alleadgeth that such foure persons were seised of lands , whereunto the advowsen in question was appendant in fee , and did present to the church , and afterward the church was voide , que estat del , &c. that is which estate of the foure persons , he faith also , that he hath nowe during the vacation , by vertue whereof he presently , &c. brooke titulo que estate . fol. . & . but it is harder to knowe when this que estate is to be pleaded , then to vnderstand what it is , as by him may appeare . see the new booke of entries . verbo . que estate . queene ( regina ) is either shee that houldeth the crowne of this realme by right of blood , or els shee that is maried to the king. in the former signification shee is in all construction the same that the king is , and hath the same power in all respects . in the other signification shee is inferiour , and a person exempt from the king. for shee may siew and be siewed in her owne name . yet that shee hath , is the kings , and looke what shee looseth , so much departeth from the king. stawnf : praerog : cap. . fol. . in fine . see kitchin fol. . b. see cooke lib. . copy-hould cases , fo . . b. augusta was the like among romaines , how be it not euisdem iuris in all things . queenes siluer . see kings siluer . quem reditum reddat , is a writ iudiciall , that lyeth for him to whom a rent seck , or rent charge is graunted by fine leuied in the kings court , against the tenent of the land , that refuseth to atturne vnto him , thereby to cause him to atturne . see old : nat . br : fol. . and west . parte . simbol : titulo fines . sect : . see the new booke of entries . verbo quem reditum reddit . querela friscae fortiae , is a writ . see fresh force . querela coram rege & consilio discutienda , & terminanda , is a writ , whereby one is called to iustifie a complaint of a trespasse made to the king and himselfe before the king & his counsell . register originall , fol. . b. questus est nobis , &c. is the sorme of a writ of nusance , which by the statute anno . ed. pri . cap. . lieth against him , to whome the house or other thing that breedeth the nusance , is alienated , wheras before that statute , this actiō lay onely against him , that first leuied the thing , to the hurt of his neighbour . see the statute . quia improvide , seemeth to be a supersedeas graunted in the behalfe of a clerke of the chawncerie siewed against the priuiledge of that court , in the common plees , & persiewed to the exigēd . see dyer . f. . n. . quid iuris clamat , is a writ iudiciall issuing out of the record of the fine , which remaineth with the custos breuium of the common place , before it be ingrossed ( for afterward it cannot be had ) and it lieth for the grauntee of a reversion , or remainder , when the particular tenent will not atturne . west . parte . . symbol . titulo . fines . sect . . whome see farder . see the register iudiciall , fol. . . and the newe booke of entries . verbis quid iuris clamat . quinquagesima sunday , is alway the next sabbath before shrouetide , so called , because it is the fiueteth day before easter . the reasons of this appellation who so desireth to know , hee may finde diuers such as they bee , in durandi rationaeli diuinorum , capit . de quinquagesima . sexagesima sunday is the next sabbath before quinquagesima , so called in the opinion of the said authour , because the number of sixtie consisteth of sixe times tenne : sixe hauing reference to the sixe workes of mercie , and tenne to the tenne commandements . septuagesima is the next before sexagesima , and isinstituted and so called , as durand likewise saith , for three things : and ( to vse his owne words , ) primò , propter redemptionem sabbathi , vel secundum alios , quintae feria , in quae sancti patres statuerunt ieiunari . secundò , propter repraesentationem , quoniam repraesentat septuaginta annos captiuitatis babilonicae . tertio , propter significationem , quoniam per hoc tempus significatur deniatio , exilium , & tribulatio totius humani generis ab adam vsque ad finem mundi : quod quidem exilium sub revolutione septem dierum peragitur , & sub septem millibus annorum includitur . but of these three dayes , you may reade him at large , that haue a mind to learne of him . i onely take occasion to note , what time of the yeare they be , because i find them spoken of in our ancient lawe writers , as britton ca. . and such like . quite claime ( quiete clamantia , vel quieta clamantia ) is a release or acquiting of a man for any action , that he hath , or might haue against him . bracton lib. . tract . . cap. . num . . & lib. . tractat . . cap. . num . prim . quittance ( quietantia , ) see acquitance . quid pro quo , is an artificiall speech in the common lawe , signifying so much as the greeke 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , among the ciuilians , which is a mutuall pretestation or performance of both parties to a contract : as a horse and tenne pound betweene the buyer and the seller . kitchin , fol. . quinsieme ( decima quintae ) is a french word , signifying a fifteenth . it is vsed in our common lawe , for a taxe laid vpon the subiects , by the prince . an . . h. . cap. . so tearmed , because it is rated after the fifteenth part of mens landes or goods . see fifteenth and taxe . the fifteenth ( as crompton saith in his iurisdict . fol. . ) is leuied more commonly in these dayes by the yards of land : and yet in some places by goods also : and note also , that he there saith , that it is well knowne by the exchequer rolle , what euery towne through england is to pay for a fifteenth . sometime this this word quinsieme is vsed for the fifteenth ●ay after any feast , as quinsieme of s. iohn baptist . anno . ed. prim . cap. . & anno decimo octano . eiusd . capit . prim . quòd ei deforciat , is a writ that lyeth for the tenent in tayle , tenent in dower , or tenent for terme of life , hauing lost by default , against him that recouered , or against his heire . exposition of termes . see broke hoc tit . see the regist . original . fol. . and the new booke of entries . verbo quod ei defortiat . quod permittat , is a writ , that lyeth for him that is disseised of his commune of pasture , against the heire of the disseisour being deade . termes of lawe . britton ca. . saith that this writ lyeth for him , whose auncestour died seised of commune of pasture , or other like thing annexed to his inheritance , against the deforceour . see broke hoc titulo . see the register origin . fol. , and the new booke of entries . verbo , quod permittat . quod clerici non eligantur in officio ballivi , &c. is a writ , that lyeth for a clerke , which by reason of some land he hath , is made , or in doubt to be made either bayliffe , bedell , or reeue , or some such like officer . see clerico infra sacros , &c. see the register orig . fol. . fitz. nat . br . fol. . quòd clerici beneficiatide cancellaria , &c. is a writ to exempt a clerk of the chauncerie from contribution toward the procters of the clergie in parlament . register originall : fol. . a. quòd personae , nec praebendarii , &c. is a writ , that lieth for spirituall persons , that are distrained in their spirituall possessions for the payment of the fifteenth with the rest of the parish . fitz. nat . br . fol. . quòd non permittat . see consuetudinibus , & seruiciis . quo iure , is a writ , that lyeth for him that hath land , wherein another chalengeth commun of pasture time out of mind . and it is to compell him to shewe by what title he challengeth this commune of pasture . fitzh . nat . br . fol. . of this see briton more at large , cap. . see the register origin . fol. . and the newe booke of entries . verbo quo iure . quo minus , is a writ , that lyeth for him , which hath a graunt of housebote , and heybote , in another mans woods , against the graunter making such waste , as the grauntee cannot enioy his graunt . old nat . br . fol. . termes of lawe : see brooke , hoc titulo . see kitchin fol. . b. this writ also lyeth for the kings fermer in the exchequer , against him to whom he selleth any thing by way of bargaine touching his ferme . perkins graunts . . for he supposeth , that by the breach of the vendee he is disabled to pay the king his rent . quo warranto , is a writ that lyeth against him , which vsurpeth any frawnchis or libertie against the king , as to haue wayfe , stray , faire , market , court baron , or such like , without good title . old . nat . br . fol. . or else against him that intrudeth himselfe as heire into land . bracton , lib. . tractat . . cap. . num . . see brook hoc titulo . you may reade of this also . anno . ed. prim . stat. . & . & anno eiusdem . and the new booke of entries . quo warranto . r racke vintage , anno . h. . cap. . is a second vintage o● voyage for wines by our merchants into fraunce , &c. for rackt wines , that is , wines clensed and so purged , that it may be and is drawne from the leese . from this voyage ▪ our merchants commonly returne about the end of december , or beginning of ianuarie . radknights . see rodeknights . ran , is a saxon word , signifying so open a spoiling of a man , that it cannot be denied . lamb. archan . fol. . defineth it thus : ran dicitur aperta rapina , quae negari non potest . ransime , ( redemptio ) commeth of the french ( rançon ) or ( rençon ) i. ( redemptio . ) it signifieth properly with vs , the summe paid for the redeeming of a captiue : and sometime a great summ of money to be paid for the pardoning of some heinous crime . anno pri . h. . cap. . note that when one is to make fine , and ransome , the ransome shal be treble to the fine . cromptons iustice of peace . fol. . a. and lamb. eirenarch : lib. . ca. . pa. . horne in his mirrour of iustices , maketh this difference betweene amerciament , and ransome , because ransome is the redemption of a corporall punishment , due by law to any offence , lib. . cap. de amerciament taxable . rape ( rapus vel rapa ) is a part of a county , signifiing as much as a hundred . as southsex is diuided into sixe parts , which by a peculiar name are called rapes : viz : the rape of chichester , of arundell , of brember , of lewis , of peuersey , of hastings . camden : britan. pag. . whom also see pag. . these parts are in other places called tithings , lathes , or wapentakes . smith de repub. anglo . lib. . ca. . rape ( raptus ) is a felony committed by a man in the violent deflowring of a woman , be shee ould , or young : britton : cap. . whereof west . parte . . simbol . titulo inditements , secto : . hath these words : copulation violent , is termed , a rape , or rauishment of the bodie of a woman against her will : which is carnall knowledge had of a woman , who neuer consented thereunto before the fact , nor after . ( and this in scotland ought to be complained of the same day , or night that the crime is committed . skene de verborum significa . verbo raptus . his reason . quia lapsu diei hoc crimen prescribitur ) this offence is with vs felony in the principall , and his ayders . anno . h. . cap. . anno pri . ed. . cap. pri : westm . . cap. . ( but fleta saith that the complaint must be made within fourty daies , or els the woman may not be heard . lib. . cap. . § . praeterea . and carnall knowledge of a woman vnder tenne yeares ould is felony . anno . . elizab. cap . thus far m. west : of the diuersity of rapes , see cromptons iustice of peace . fol. . b. & . see rauishment . the ciuile lawe vseth ( raptus ) in the same signification . and ( rapere virginem vel mulierem , est ei vim inferre & violere . co. li. . de raptu virgines . raptu haeredis , is a writ lying for the taking away of an heire houlding in soccage , and of this there be . sorts , one when the heire is maried , the other when he is not ; of both these see the register originall . fol. . b. rastall , was a lawyer of reuerend accoumpt , that liued in queene maries daies , and was a iustice of the common plees . he gathered the statutes of the land into an abridgement , which carieth his name at this day . he is also the author of the new booke of entries . ratification ( ratificatio ) is vsed for the confirmation of a clerk , in a pre bend , &c. formerly giuen him by the bishop , &c. where the right of patronage is doubted to be in the king. of this see the register originall : fol. . rationabili parte bonorum , is a writ that lyeth for the wife against the executours of her husband , denying her the third part of her husbands goods after debts and funerall charges defrayed . fitzh . nat br . fol. . who there citeth the . chap. of magna charta , and glanuile , to proue , that according to the common law of england , the goods of the deceased , his debts first paid , should be diuided into three parts , whereof his wife to haue one , his children the second , and the executours the third . fitzherbert saith also , that this writ lyeth as well for the children , as for the wife . and the same appeareth by the register originall fol : . b. i haue heard some learned men say , that it hath no vse , but where the custome of the country serueth for it . see the new booke of entries , verbo : rationabili parte : et rationabili parte bonorum . rationabilibus diuisis , is a writ , which lyeth in case , where two lords in diuers townes haue their seigneuries ioyning together , for him , that findeth his waste , by litle and litle , to haue bene encroched vpon within memory of man , against the other that hath encroched , thereby to rectifie the bounds of their seigneuries . in which respect fitzherbert calleth it , in his owne nature , a writ of right . the old natura breuium saith also , that this is a iusticies , and may be remoued by a pone out of the county to the common bank : see farder the forme and vse of this writ in fitzh . nat . br . fol. . and in the register , fol. . b. and the new booke of entries . verbo . rationabilibus diuisis . the ciuilians call this iudicium finium regundorum . rauishment , raptus commeth of the french ( rauissement . i. direptio , ereptio , raptio , raptus , raptura ) and signifieth in our law , an vnlawfull taking away either of a woman , or of an heire in ward . sometime it is vsed also in one signification with rape , viz. the violent deflowring of a woman , see rape . and thereupon is the writ called rauishment de gard , otherwise called de haerede abducto , lying for the lord , whose tenent by reason of his tenure in knights seruice being his ward , is taken and conueied from him . see fitzh . natu . br . in the writ de recto de custodia . fol. . f. see also the old . nat br . fol. . . & . see the new booke of entries . verbo . rape , & rauishment de gard . rawe , anno . ed. . cap. . rawnge , commeth of the french ( ranger . i. astituere , ordinare ) or else the substantiue ( rang. i. ordo , series ) it is vsed in our common lawe , both as a verbe ( as to raunge ) and also as a substantiue ( as to make rawnge ) charta de foresta , cap. . the word is appropriated to the forest , signifiing the office of the rawnger . the rawnger is a sworne officer of the forest ( of which sort there seeme to be twelue ) charta de foresta . cap. . whose authoritie is partly declared in his oath , set downe by m. manwood parte pri . of his forest lawes , pag. . in these words : you shall truly execute the office of a rawnger in the purlieuse of b. vpon the borders of the kings forest of w. you shall rechase , and with your hound driue backe again the wild beasts of the forest , as often as they shall raunge out of the same forest into your purlieuse . you shall truly present all vnlawfull hunting , and hunters of wild beasts of venerie , as well within the purlieuse , as within the forest . and these and all other offences you shall present at the kings next court of attachements , or swainmote , which shall first happen , so helpe you god. but the same author setteth downe his office more particularly in his second part c. . n. . . & . the summ wherof is this . a raunger is an officer of the forest , or to the forest , but not within the forest , hauing no charge of vert , but only of venison that commeth out of the forest into his charge , or part of the pourallee , to sale conduct them back againe . and therfore in those forests that haue no pouralleeses , there be no rawngers , but foristers serue the turne . this raunger is made and appointed by the king his leters patents vnder the great seale , and for his beter incouragement in his dutie , he hath a yearely fee of . pound or . pound paid out of the exchequer , and certaine fee deere both redde and falow . his office consisteth cheifely in these three points ad perambulandum quotidie per terras deafforestatas , ad videndum , audiendum & inquirendum , tam de malefactis , quàm de malefactoribus in balliua sua : ad refugandum feras forestae tam veneris quàm chaseae de terris deafforestatis , in terras afforestatas : and , ad praesentandū omnes transgressiones forestae in terris deafforestatis factas , ad proximas curias illius forestae tentas . rawnsom . see ransom . ray , seemeth to be a word attributed to cloth neuer coloured or died . v. anno . h. . cap. . realtie . see royaltie . reasonable ayde ( rationabile auxilium ) is a duty that the lord of the fee claimeth holding by knights seruice or in soccage to marie his daughter , or to make his sonne knight . westm . . cap. . see ayde . see brooke titulo reasonable aide . reattachement ( reattachiamentum ) is a second attachement of him , that was formerly attached , and dismissed the court without day , as by the not cōming of the iustices , or some such like casualtie . brooke tit . reattachment ; where he maketh a reattachment generall and a reattachment speciall . reattachment general seemeth to be , where a man is reattached for his appearance vpon all writs of assise lying against him . brooke eodem , nu . . then speciall must be for one , or more certaine , register iudiciall , fol. . see the newe booke of entrise . verbo reattachment . rebellion ( rebellio ) is a french word signifiing the taking vp of armes against the king or present estate . this french commeth from the latine ( rebellio ) which signifieth a second resistance of such as being formerly ouercome in battaile by the romanes , yeelded themselues to their subiection . the french men and we vse it generally for the traiterous taking vp of armes against the estate , be it by naturall subiects , or by others formerly subdued . reade more of this . lib. . feudorum cap. . and hotoman vpon the same chapter . see the writ of rebellion . rebell is sometime attributed to him that wilfully breaketh a lawe . anno . ed. . cap. . & anno . eiusdem , stat . . c. . sometime to a villein disobeying his lord , a. . r. . c. . rebellious assembly , is a gathering together of . persons or more , intending or going about , practising , or putting in vre vnlawfully of their owne authoritie to chaunge any lawes , or statutes of this realme , or to destroy the inclosure of any park , or ground inclosed , or bankes of any fisheponds , pale , or conduict , to the intent the same shall remaine voide , or to the intent vnlawfully to haue common , or way in any of the said grounds , or to destroy the deere in any park , or any warrē of conies , or deuehouses , or fish in any pondes , or any house , barnes , mils , or bayes , or to burne stacks of corne , or to abate rents , or prices of victuals , an . pri . mar. c. . & an . . eliza. cap. . see west parte . symbol . titulo inditem 〈…〉 s. sectio . and cromptons iustice of peace . f. . b. rebutter , commeth of the french ( bouter . i. pellere , impellere , propellere , intrudere ) and signifieth in our common lawe the same thing . for example , a man giueth land to him and the issue of his body , to antoher in fee with warranty . and the donnee leaseth out this land to a third for yeares . the heire of the donour impleadeth the tenent , alleadging that the land was intailed to him . the donee commeth in , and by vertue of the warrantie made by the donour , repelleth the heire , because though the land were intailed to him : ye● he is heire to the warranty likewise ; and this is called a rebutter . see brooke . titulo barre : nu . . and againe if i graunt to my tenent to hould sine impetitione vasti , and afterward i implede him for waste made , he may debarre me of this action , by shewing my graunt , and this is likewise a rebutter . idem , eodem , nu . . see the newe booke of entries , verbo rebutter . renant , anno . h. . ca. . recaption ( recaptio ) signifieth a second distresse of one formerly distreined for the selfe same cause , and also during the plee grounded vpon the former distresse . it likewise signifieth a writ lying for the party thus destreined , the forme , and farder vse whereof , you may see in fitzh . nat . br . fol. . and the register orig . fol. . and the register iudiciall , fol. . and the new booke of entries . verbo . recaption . receyver ( receptor , or receptator ) generally and indefinitely vsed , is as with the ciuilians , so also with vs , vsed commonly in the euill part for such as receiue stollen goods from theeues , and conceale them . l. . Π. de receptatoribus , but annexed to other words , as the receiuer of rents , &c. it signifieth many times an officer of great accoumpte , belonging to the king or other great personage . cromptons iurisdict . fol. . there is also an officer called the reiceiuer of fynes , who receiueth the mony of all such , as compound with the king in the office of the finances for the buying of any lands , or tenements houlden in capite . west . parte . symbol . titulo fines . sect . . receiuer of all offices accounptable . anno . . ed. . ca. . receiuer generall of the duchy of lancaster , is an officer belonging to the duchy court , that gathereth in all the reuenewes and fines of the lands of the said duchy , and of all forfeitures and assesments , or what else is thence to be receiued . receiuer generall of the court of wards and liueries , is an officer belonging to that court , that is to receiue all rents , revenewes and fines of the lands belonging to his maiesties wards , as also the fines for licences to the kings widowes to mary , of ouster le main sued out , and for idiots and lunatikes land , and finally all other profits whatsoeuer in mony arising to his maiestie out of or by reason of the court of wards and lyveries . receiuer generall of the muster rolles . anno . . el. ca. . receiuer generall of the duchie of lancaster of the wards , and liveries , anno . elizab. cap. . receyt . see resceit . recluse ( reclusus ) is he , that by reason of his order in religion , may not stirre out of his house or cloyster . litleton fol. . recognisance ( recognitio ) commeth of the french ( recognoisance . i. agnitio , recognitio ) and in our common lawe is thus defined . a recognisance is a bond of record , testifing the recognizour to owe vnto the recognizee a certaine summe of money , and is knowledged in some court of record , or before some iudge or other officer of such court , hauing authoritie to take the same : as the masters of the chancerie , the iudges of either bench , barons of the exchequer , iustices of peace , &c. and those that be meere recognisances are not sealed , but inrolled . and execution by force thereof is of all the recognisours goods , and chatels , except his draught beasts , and implements of husbandrie , and of the moitie of his lands , west . parte prim . symb . lib. . titulo recognisances . sect . . and of these you may see there great diuersitie of presidents . note farder , that a recognizance , though in the speciall signification , it do but acknowledge a certaine debt , and is executed vpon all the goods , and halfe the lands of the recognisour : yet by extention it is drawne also to the bonds , commonly called statute merchant , and statute of the staple : as appeareth by the register original . fol. . . & . and by west . vbi supra , and others . see statute merchant , and statute staple . recognisance hath yet another signification , as appeareth by these wordes in the statute , west . . c. . anno . ed. . it is prouided also and agreed , that if any man be attainted of disseisin done in the time of our king that now is , with roberie of any maner of goods , or moueables , by recognisance of assise of nouel disseisin , the iudgement shall , &c. in which place it is vsed for the verdict of the twelue men empaneled vpon an assise , which twelue are also called recognitours of the assise , litleton fol. . so also bracton calleth them lib. . tractat . . cap. . num . . in these words : in essonio verò reddendo exigentur omnes illi , quos causa tetigerit : sicut particeps , warantus , & alii vt . supra . recognitores in assisis , iuratores in iuratis , inquisitores in inquisitionibus , &c. and againe , lib. . tract . prim . cap. . num . . see the statute anno . ed. prim . stat . . see the newe book of entries , ver . recognisance . recognitione adnullanda per vim & duritiem facta , is a writ to the iustices of the common bench , for the sending of a record , touching a recognisance , which the recognisour suggesteth to be acknowledged by force and hard dealing , that if it so appeare , it may be disanulled . register original . fol. . a. b. recognitours ( recognitores ) is a word vsed for the iurie empaneled vpon an assise . the reason why they be so called , may be , because they acknowledge a disseisin by their verdict . see bracton lib. . tract . . cap. . nu . . & lib. . tract . prim . cap. . num . . record , ( recordum ) commeth of the latine ( recordari . ) the word is both french and english , and in both tongs signifieth an authenticall or vncontroulable testimonie in writing . britton cap. . and lamb. eirenarch . lib. . cap. . in the grand custumarie of normandie , there are seuerall chapters of diuers records , expressing whose presence in each of the courts , is sufficient to make that which is enacted to be a record . viz. the . chapter , where you haue wordes to this effect . the record of the kings court , is a record of things done before the king. all things done before the king , so he haue one other witnesse . this record may he and other make : if he himselfe will not make it , it may be made by three others . and his person may not bee impeached ( or excepted against ) either in this or any other thing . the next chapter . viz. the . sheweth how many persons suffise to make a record in the exchequer . the next how many in an assise , &c. i find not that wee in our courts ( especially the kings courts ) stand much vpon the number of recorders or witnesses for the strength of the testimonie which the record worketh : but that we take it sufficient which is registred in each court. glanvile lib. . cap. . bracton lib. . tract . . cap. . num . . britton in the proeme of his booke , saith , that the iustices of the kings bench haue a record , the coroner , vicount , iustices of the exchequer , iustices of goale deliuerie , the steward of england , iustices of ireland , iustices of chester , iustices assigned by the kings leters patents , in those causes they haue commission to take knowledge of . all which ( as i take it ) must be vnderstood with that caueat of brooke , titulo ( record ) num . & . that an act committed to writing in any of the kings courts , during the terme wherein it is written , is alterable , and no record : but that terme once ended , and the said act duly enrolled , it is a record , and of that credit , that admitteth no alteration , or proofe to the contrarie . yet see sir edward cookes reports lib. . rawlins case . fol. . b. ann . . ed. . cap. . it is said , that two iustices of either bench haue power to record non suites , & defaults in the countrey . it appeareth by bracton , lib. . tract . . c. . & . that quatuor milites babent recordum , being sent to view a partie essoined de malo lecti , and lib. . tract . . cap. . nu . . that seruiens hundredi habet recordum in testimonio proborum honinum . and in the statute of carleil , made anno . ed. . it is said , that one iustice of either bench with an abbot , or a prior , or a knight , or a man of good same and credence , hath a record in the view of one that is said by reason of sicknesse , to be vnable to appeare personally for the passing of a fine . and anno . h. . cap. . & anno . h. . cap. . that two iustices of peace , with the shyreeue , or vndershyreeue haue power to record , what they find done by any in a ryot , or route , &c. that which is before mentioned out of britton touching the shyreeue , seemeth to be limited by fitzh : nat . br . fol : . d. who alloweth him a record in such maters onely , as he is commaunded to execute by the kings writ , in respect of his office . and thence it commeth that kitchin fol. . saith , that the escheatour , and shyreeue be not iustices of record , but officers of record . in which words he signifieth , that their testimony is authenticall onely in some certaine things that are expresly inioyned them by vertue of their . commission , as ministers to the king in his higher courts , whereas iustices of record haue in generality a record for all things within their cognisance done before them as iudges , though not expresly or particularly commaunded . fitzherbert in his nat : br . fo . . in principio , something explaneth this point , writing to this effect : euery act that the shyreeue doth by vertue of his commission , ought to be taken as mater of record , no lesse then the iustices of peace . his reasons be two : the former , he cause his patent is of record : the other , because he is a conseruatour of the peace . and then he addeth , that the plees held before him in his county be not of record . yet is the county called a court of record . westm . . ca. . anno . ed. . but it seemeth by britton . cap. . that it is onely in these causes , whereof the shyreeue houldeth plee by especiall writ ; and not those that he houldeth of course or custome . and in that case also it may be gathered out of the same authour , that he hath a record , but with the testimony of those annexed , that be suiters to the court. which seemeth to agree with bractons words aboue specified . seruiens hundredi habet recordum in testimonio proborum hominum . and to this purpose read glanuile . lib. . cap. . . & . one iustice vpon view of forcible detinew of land , may record the same by statute . anno . r. . cap. . the maior , and constables of the staple , haue power to record recognisances of debt taken before them . anno . h. . ca. . brooke , titulo ( record ) seemeth to say , that no court ecclesiasticall is of record : how truly , it is to be inquired . for bishops certifiing bastardy , bigamy , excommunication , the vacancy or plenarty of a church , a mariage , a diuorce , a spirituall intrusion , or whether a man be professed in any religion , with other such like , are credited without farder enquiry or controlment . see brooke , titulo bastardy . see fleta . lib : . ca. . . . . lamb. cirenarcha : lib : pri . cap. . glanuile . li. . ca. . & . the register originall : fol. . b. bracton . lib. . tracta . . ca. . nu . . britton ca. . . . . & . doct. and stud. li. . ca. . but especially cosius apologie , parte pri . ca. . and a testament shewed vnder the seale of the ordinary is not trauersable . . h. . . perkins testament . . fulb. paral . fol. . b. but it may be that this opinion groweth from a difference betweene that law , whereby the court christian is most ordered , and the common law of this land . for by the ciuile or canon law no instrument , or record is held so firme , but that it may be checked by witnesses able to depose it to be vntrue . co. plu● valere quod agitur quàm quod simulate concipitur . ca. cùm iohannes . . extra : de fide instrumentorum . whereas in our common law against a record of the kings court , after the terme wherein it is made , no witnes can preuaile . britton . ca. . coke lib. . hindes case . fol. . lib. assisarum fol. . nota . . this reconciliation may be iustified by brooke himselfe . titulo , testaments . num . . . & . and by glanuile , lib. . cap. . the king may make a court of record by his graunt . glanuil . li. . ca. . britton cap. . as for example , queene elizabeth of worthy memory by her charter dated . . aprilis . anno . regni sui made the consistory court of the vniuersity of cambridge a court of record . there are reckoned among our common lawyers three sorts of records : viz : a record iudiciall , as attainder , &c. a record ministeriall vpon oath , as an office found . a record made by conueyance by consent , as a fine , deede enrolled , or such like . coke . li. . andrew ognels case . fo . . b. recordare facias , or recordari facias , is a writ directed to the shyreeue , to remoue a cause depending in an inferiour court , to the kings bench , or common plees , as out of a court of auncient demesn , hundred , or countie , fitz. nat . br . fol. . b. out of the countie court. idem , fo . . b. or other courts of record . idem fol. . c. & . k. howbeit , if you will learne more exactly , where , and in what cases this writ lyeth , reade brooke in his abridgm . titulo , recordare & pone . it seemeth to be called a recordare , because the forme is such , that it commaundeth the shyreeue to whom it is directed , to make a record of the proceeding by himselfe , and others , and then to send vp the cause . see the register , verbo , recordare , in the table of the originall writs . see certiorart . see accedas ad curiam . recorder ( recordator ) commeth of the french ( recordeur . i. talis persona quae in ducis curia â iudicio faciendo non debet amoueri . ) grand custumarie of norm . cap. . & . whereby it appeareth , that those which were necessarie iudges in the duke of normandies courts , were called recorders : and who they were , is shewed in the ninth chapter of the said booke . and that they , or the greater part of them , had power to make a record , it is euident in the chapter . here in england a recorder is he , whome the maior or other magistrate of any citie , or towne corporate , hauing iurisdiction , or a court of record within their precincts by the kings graunt , doth associate vnto him for his beter direction in maters of iustice and proceedings , according vnto lawe . and he is for the most part a man well seene in the common lawe . recordo & processis mittendis , is a writ to call a record , together with the whole proceeding in the cause , out of one court into the kings court. which see in the table of the register orig . how diuersly it is vsed . recordo vtlagariae mittendo , is a writ iudiciall , which see in the register iudicial . fol. . recouerie ( recuperatio ) cōmeth of the french ) recouvrer . i. recuperare . it signifieth in our commō lawe , an obteining of any thing by iudgement , or triall of lawe , as evictio doth among the ciuilians . but you must vnderstand , that there is a true recouerie and a feigned . a true recouerie is an actuall , or reall recouerie of any thing , or the value thereof by iudgement : as if a man siewed for any land , or other thing moueable or immoueable , and haue a verdict , and iudgement for him . a feigned recouerie is ( as the ciuilians call it ) quaedam fictio iuris . a certaine forme , or course set downe by lawe , to be obserued for the beter assuring of lands or tenements vnto vs. and for the beter vnderstanding of this , reade west . parte . symbol . titulo recoveries . sect . pri . who saith , that the end , and effect of a recouerie , is to discontinue and destroy estates tayles , remainders , and reuersions , and to barre the former owners thereof . and in this formality there be required . parties , viz. the demaundant , the tenent , and the vowchee . the demaundant is he that bringeth the writ of entrie , and may be termed the recouerer : the tenent is he , against whom the writ is brought , and may be termed the recoveree . the vowchee is he , whom the tenēt vowcheth , or calleth to wartantie for the land in demaund . west . vbi supra . in whom you may reade more touching this mater . but for example to explane this point , a man that is desirous to cut of an estate tayle in lands or tenements , to the end , to sell , giue , or bequeath it , as him self seeth good , vseth his frend to bring a writ vpon him for this land . he appearing to the writ saith for him selfe , that the land in question came to him or his auncesters from such a man or his auncester , who in the conueiance thereof , bound him selfe and his heires to make good the title vnto him or them to whome it was conueied . and so he is allowed by the court to call in this third man to say what he can for the iustifiing of his right to this land , before he so conveied it . the third man commeth not : wherevpon the land is recouered by him that brought the writ : and the tenent of the land is left for his remedie to the third man that was called and came not in to defend the tenent . and by this meanes the entayle which was made by the tenent , or his auncester , is cut of by iudgement herevpon giuen : for that he is pretended to haue no power to entaile that land , wherevnto he had no iust title , as now it appeareth : because it is evicted , or recouered from him . this kinde of recouery is by good opinion , but a snare to deceiue the people . doctor & stud. ca. . dial . pri . fol. . a. this feigned recouery is also called a common recouery : and the reason of that epitheton is , because it is a beaten and common path to that end , for which it is ordeined , viz. to cut of the estates aboue specified . see the new booke of entries verbo . recouery . i saide before , that a true recouery is as well of the value , as of the thing : for the beter vnderstanding whereof , know , that ( in valew ) signifieth as much as ( illud quod interest ) with the ciuilians . for example , if a man buy land of an other with warranty , which land a third person afterward by suite of lawe recouereth against me , i haue my remedie against him that sould it me , to recouer in value , that is , to recouer so much in mony as the land is worth , or so much other land by way of exchaunge . fitzh . nat . br . fol. . k. to recouer a warranty . old . nat . br . fol. . is to proue by iudgement that a man was his warrant against all men for such a thing . recto , is a writ , called in english , a writ of right , which is of so high a nature , that whereas other writs in reall actions , be onely to recouer the possession of the land , or tenements in question , which haue beene lost by our auncester , or our selues , this aimeth to recouer both the seisin , which some of our auncesters , or wee had , and also the propertie of the thing , whereof our auncester died not seised , as of fee : and whereby are pleaded , and tried both the rights togither , viz. as well of possession , as property . insomuch as if a man once loose his cause vpon this writ , either by iudgement , by assise , or batell , he is without all remedie , and shall be excluded ( per exceptionem rei iudicatae ) bracton lib. . tract . . cap. . & seqq . where you may reade your fille of this writ . it is diuided into two species : rectumpatens , a writ of right patent , and rectum clausum , a writ of right close . this the ciuilians call iudicium petitorium . the writ of right patent is so called , because it is sent open , and is in nature the highest writ of all other , lying alwaies for him that hath fee simple in the lands , or tenements siewed for , and not for any other . and when it lieth for him that chalengeth fee simple , or in what cases , see fitzh . nat . br . fol. pri . c. whome see also . fol. . of a speciall writ of right in london , otherwise called a writ of right according to the custome of london . this writ is also called breue magnum de recto . register originall . fol. , a. b. and fleta li. . cap. . § . . a writ of right close , is a writ directed to a lord of auncient demesn , and lieth for those , which hould their lands and tenements by charter in fee simple or in fee taile , or for terme of life , or in dower , if they be eiected out of such lands , &c. or disseised . in this case a man or his heire may siew out this writ of right close directed to the l. of the auncient demesn , commanding him to doe him right , &c. in his court . this is also called a small writ of right . breve parvum , register originall . fol. . a. b. and britton , cap. . in fine . of this see fitzh . likewise at large . nat . br . fol. . & seqq . yet note that the writ of right patent seemeth farder to be extended in vse , then the originall inuention serued : for a writ of right of dower , which lieth for the tenent in dower , and onely for terme of life , is patent , as appeareth by fitzh . nat . br . fol. . e. the like may be said of diuers others that doe hereafter followe . of these see also the table of the originall register . verbo recto . this writ is properly tried in the lords court betweene kindsmen , that claime by one title from their auncester . but how it may be thence remoued , and brought either to the countie , or to the kings court , see fleta , lib. . cap. . . & . glanvile seemeth to make euery writ , whereby a man sieweth for any thing due vnto him , a writ of right . lib. . ca. lib. . cap. . lib. . cap. . recto de dote , is a writ of right of dower , which lieth for a woman , that hath receiued part of her dower , and purposeth to demaund the remanent in the same towne , against the heire , or his gardian , if he be ward . of this see more in the old nat . br . fol. . and fitzh . fol. . e. and the register originall , fol. . and the newe booke of entries , verbo droyt . recto de dote vnde nihil habet , is a writ of right , which lieth in case , where the husband hauing diuers lands or tenements , hath assured no dower to his wife , and she thereby is driuen to siew for her thirds against the heire or his gardian , old . nat . by . folio . register originall , fol. . recto de rationabili parte , is a writ that lieth alway , beweene priuies of bloud , as brothers in gauel-kind , or sisters , or other coparceners , as nephewes or neeces , and for land in fee simple . for example , if a man lease his land for tearme of life , and afterward dyeth , leauing issue , two daughters , and after that the tenent for terme of life likewise dyeth : the one sister entring vpon all the land , and so deforcing the other ; the sister so deforced , shall haue this writ to recouer her part . fitz. nat . br . fo . . register origin . fol. . recto quando dominus remisit , is a writ of right , which lyeth in case , where lands or tenements that be in the seigneurie of any lord , are in demaund by a writ of right . for if the lord hold no court , or otherwise at the prayer of the demandant , or tenent , shall send to the court of the king his writ , to put the cause thither for that time ( sauing to him another time the right of his seigneurie ) then this writ issueth out for the other partie , and hath this name from the words therein comprised , being the true occasion thereof . this writ is close , and must be returned before the iustices of the common bancke . old . nat . br . fol. . regist . orig . fol. . recto de advocatia ecclesiae , is a writ of right , lying where a man hath right of advouzen , and the parson of the church dying , a straunger presenteth his clerke to the church , & he not hauing moued his action of quare impedit nor darrein presentment within sixe monethes , but suffered the straunger to vsurpe vpon him . and this writ he only may haue , that claimeth the aduowzen , to himselfe and to his heires in fee. and as it lyeth for the whole aduowzen : so it lyeth also for the halfe , the third , the fourth part . old . nat . br . fol. . register originall . fol. . recto de custodia terrae & haeredis , is a writ that lyeth for him , whose tenent houlding of him in chiualry , dyeth in his nonage , against a straunger , that entreth vpon the land , and taketh the body of the heire . the forme , and farder vse whereof see in fitzh . nat . br . fol. . and the register originall : fol. . recto sur disclaimer , is a writ that lyeth , where the lord in the kings court , sc : in the common plees , doth avow vpon his tenent , and the tenent disclaimeth to hould of him , vpon the disclaimer he shall haue this writ : and if the lord auerre , and proue , that the land is houlden of him , he shall recouer the land for euer . old . nat . br . fo . . which is grounded vpon the statute , westm . . ca. . anno . ed. pri . which statute beginneth . quia domini feudorum , &c. rector , is both latine , and english , signifiing a gouernour . in the common law rector ecclesia parochialis , is he that hath the charge , or cure of a parish church : qui tantum ius in ecclesia parochiali habet , quantum praelatus in ecclesia collegiata . ca. vlt : de locat ; & conduct : in glos : verbo expelli potuissent . in our common law , i heare that it is lately ouer ruled , that rector ecclesiae parochialis is he , that hath a personage , where there is a vicarage , endowed : and he that hath a personage without a vicarage , is called persona . but this distinction seemeth to be new and subtile praeter rationem . i am sure bracton vseth it otherwise , lib : . tracta : . ca. pri . in these words . et sciendum quod rectoribus ecclesiarum parochialium competit assisa qui instituti sunt per episcopos , & ordinarios vt personae . where it is plaine , that rector and persona be confounded . marke also these words there following : item dici possunt rectores canonici de ecclesus praebendatis . item dici possunt rectores , vel quasi , abbates , priores & alii , qui habent ecclesias ad proprios vsus . rectus in curia , is he that standeth at the barre , and hath no man to obiect any offence against him . smith de repub : angl : li. . c. . see a. . r. . sta . . c. . reddendum , is vsed many times substantiuely for the clause in a lease , &c. whereby the rent is reserued to the leasour . coke lib. . lord cromwels case . fol. . b. redisseisin ( redisseisina ) is a disseisin made by him , that once before was found , and adiudged to haue disseised the same man of his lands , or tenements . for the which there lyeth a speciall writ , called a writ of redisseisin . old : nat . br . fol. . fitzh . nat . br . fol. . see the new booke of entries . verb. redisseisin . redisseisina , is a writ lying for a redisseisin . reg. orig . fo . . . reddicion , is a iudiciall confession , and acknowledgement that the land or thing in demaūd belongeth to the demaundant , or at the least , not to himselfe . a. . & . h. . ca. . perkins dower . . . redubbours , be those that buy cloth , which they know to be stollen , and turne it into some other forme or fashion . britton . cap. . cromptobs vicount , fol. . a. reentry , cōmeth of the french ( r●●trer ) . i. rursus intrare , and signifieth in our common law , the resuming , or taking againe of possession , which we had ●●●st forgone . for example , if i make a lease , of land , or tenement , i doe thereby forgoe the possession , and if i doe condition with the leassee , that for non payment of the rent at the day it shal be lawfull for me to reenter , this is as much as if i conditioned to take againe the lands &c. into mine owne hands , and to recouer the possession by mine owne fact without the assistance of iudge or proces . reere countie . see rier cowntye . re extent , is a a second extent made vpon lands , or tenements , vpon complaint made , that the former extent was partially performed . brooke , titulo . extent . fol. . regard ( regardum ) is borowed of the french ( regard ) or regardure . i. aspectus , conspectus , respectus . ) and though it haue a generall signification of any care or diligence : yet it hath also a speciall acceptance , and therein is vsed onely in maters of the forest : and there two waies : one for the office of the regarder , the other for the compasse of ground belonging tothe regarders office or charge . cromptons iurisd . fol. . . touching the former , thus saith m. manwod , parte pri . of his forest lawes . pag. . the eire , generall sessions of the forest , or iustices seat , is to be houlden , and kepte euery third yeare : and of necessity before that any such sessions or iustices seate can be houlden , the regarders of the forest must make their regard . and this making of the regard must be done by the kings writ . and the regard is , ( as he afterward there saith ) to goe through the whole forest , and euery bayliwicke of the same , to see and enquire of the trespasses of the forest : which he compriseth in these . viz. ad videndendum . ad inquirendum , ad imbreviandum , ad certificandum . of euery of which braunches you may reade there his exposition . touching the second signification , the compas of the regarders charge is the whole forest , that is , all that ground , which is parcell of the forest . for there may be woods within the limits of the forest , that be no parcell thereof , and those be without the regard , as the same author plainely declareth , parte pri . pag. . and againe parte . cap. . nu . . where he sheweth the difference between these words : ( infra regardum ) or ( rewardum ) & infra forestam . regarder ( regardator ) commeth of the french ( regardeur ) . i. spectator ) & signifieth an officer of the forest . cromptons iurisdict . fol. . where it is thus defined . a regarder is an officer of the forest , appointed to survew all other officers . he saith there also , that this officer was ordeined in the beginning of king henry the seconds daies . m. manwood in his first part of forest lawes . pag. . thus defineth him . a regarder is an officer of the kings forest , that is sworne to make the regard of the forest , as the same hath been vsed to be made in auncient time . and also to view and inquire of all offences of the forest , as well of vert as of venison , and of all concealements of any offences or defaults of the foresters , and of all other officers of the kings forest , concerning the execution of their offices . he saith there also , that a regarder may be made either by the kings leters patents , or by any one of the kings iustices of the forest , at his discretion in the generall eyre , or at such time , as the regard is to be made , by vertue of the kings writ , directed to the shyreeue of the countie for that purpose . the forme of which writ he there setteth downe . after that pag. . he setteth downe his oath in these words . you shall truly serue our souereigne lord the king in the office of a regarder in the forest of waltham . you shall make the regard of the same in such maner , as the same hath beene accustomed to be made . you shall raunge through the whole forest , and through euery bailiwicke of the same , as the foresters there shall lead you to view the said forest . and if the foresters will not , or doe not know how to lead you , to make the regard or raunge of the forest , or that they will conceale from you any thing that is forfeited to the king , you your selues shall not let for any thing : but you shall see the same forfeiture , and cause the same to be inrolled in your rolle . you shall inquire of all wastes , pourpre . stures , and asserts of the forest , and also of concealements of any offence , or trespasse in the forest . & all these things you shall to the vttermost of your power doe , so helpe you god. then you may reade farder the particulars of his office . eadem , pag. . and pag. . he saith that their presentments must be vpon their view , and so recorded , and that the regarders of themselues haue power to heare and determine the fine , or amerciament for expeditating of dogs . see regard . regio assensu , is a writ whereby the king giueth his royall assent to the election of a bishop or abbot . register origin . fol. . b. registrie ) registrum ) commeth of the french ( registre . i. liber , librarium , codex ratiocinarius , ephemeris , commentarius ) it signifieth with vs the office , or books , or rolls , wherin are recorded the proceedings of the chauncerie , or any spirituall courte . the writer , and keeper whereof is called the register , in latine , registarius . register is also the name of a booke , wherein are expressed all the formes of writs vsed at the common lawe , called the register of the chauncerie . anno . ed. prim . cap. . some say it is tearmed registrum quasi regestum . prataeus . regrator ( regratator ) commeth of the french ( regratter i. desquamare . ) regratter quelque vielle robe & la faire neufue ) is to scoure or furbush an old garment and to make it new againe . also ( regratteur ) signifieth as much as ( mango ) in latine : which kind of men sold children , and to sel them the beter , mentiends coloris artem optime callebant . martialis & plinius . this word in our cōmon lawe , did aunciently signifie such as bought by the great , and sold by retayle . anno . ed. . stat . prim . ca. . but now it signifieth him , that buyeth and selleth any wares , or victuals in the same market , or faire , or within . miles thereof . anno . ed. . cap. . anno . eliz. cap. . anno . eliz. cap. . see forestallers and engrossers . rehabere facias seisinam quando vice comes liberavit seifinam de maiore parte , quam deberet , is a writ iudiciall . regist. iudicial , fol. . . there is another writ of this name and nature . eodem fol. . reioynder ( reiunctio ) signifieth in our common lawe , as much as duplicatio with the ciuilians , that is , an exception to a replication . for the first answer of the defendant to the plaintiffes bill , is called an exception : the plaintiffes aunswer to that , is called a replication : and the defendants to that , duplication in the ciuill lawe , and a reioynder with vs ; especially in chauncerie . west . parte . symb . titulo chauncerie . sect . . where he citeth these words out of spigelius . est autem reiunctio seu duplicatio , vel allegatio , quae datur reo ad infirmandum replicationē actoris , & confirmandum except ionem rei . relation ( relatio ) idem quod fictioiuris , to make a nullitie of a thing from the beginning , ( for a certaine intent ) which had essence , cooke lib. . butler & baker . fol. . b. which in playner termes may be thus expounded . relation is a fiction of the lawe , whereby something is ( for a speciall purpose ) imagined neuer to haue bene , which in truth was . reade the rest . release ( relaxatio ) commeth of the french relasche . i. cessatio , relaxatio , lax amentum ) and in our common lawe is thus defined : a release is an instrument whereby estates , rights , titles , entries , actions , and other things be some time extinguished , some time transserred , sometime abridged , and sometime enlarged . west . parte prim . symbol . lib. sect . . and there is a release in fact , and a release in lawe . perkins graunts . a release in fact seemeth to be that , which the very words expressely declare . a release in lawe is that , which doth acquite by way of consequent , or intendment of lawe . an example whereof you haue in perkins vbi supra . of these , how they be auaileable , & how not , see litleton at large . li. . cap. . fol. . of diuers sortes of these release see the newe booke of entries . verbo release . reliefe ( relevium ) commeth of the french ( relever . i. relevare ) and fignifieth in our common lawe , a certaine summe of money , that the tenent holding by knights seruice , grand sergeantie , or other tenure , for the which homage or regall seruice is due , or by soccage , for the which no homage is due , and being at full age at the death of his auncestour , doth pay vnto his lord at his entrance . bracton lib. . cap. . giueth a reason why it is called a reliefe . viz. quia haereditas , quae tacens fuit per antecessoris decessum , relevatur in manus heredum , & propter factam relevationem , facienda erit ab herede quaedam praestatio , quae dicitur relevium . of this you may read britton . cap. . in a maner to the same effect . of this also speaketh the grand custumary of normandie , cap. . to this effect : it is to be knowne , that the lord of the fee ought to haue reliefe of the lands , which be held of him by homage , when those die , of whom he had homage . and that this is not onely proper to vs in eng. or normandie , appeareth by hotoman in his commentaries , de verbis feud . verbo relevium , who there defineth it thus : relevium est honorarium , quodnovus vasallus patrono introitus causa largitur , quasi morte vasalli alterius , vel alto quo casu feudum ceciderit : quod iam à novo sublevetur : and farder speaketh of it , that which is worth the reading , and containeth great knowledge of antiquitie . see the like definition in maranta singularibus . verbo relevium . for the quantitie of this reliefe , see the great charter , cap. . in these words : if any of our earles or barons , or any other our tenents , which hold of vs in chiefe by knights seruice , dye , and at the time of his death his heire is of full age , and oweth to vs reliefe , he shall haue inheritance by the old reliefe : that is to say , the heire , or heires of an earle for one whole earldome one hundred pound : the heire or heires of a baron for one whole baronie , one hundred merkes : the heire or heires of a knight , for one whole knights fee , one hundred shillings at the most . and he that hath lesse , shall giue lesse , according to the old custome of the fees . reade also . glanvile lib. . cap. . fol. . who saith , that in his dayes the reliefe of a baronie was not certaine . the heire in francke soccage , when he commeth to his full age , after the death of his auncester , shall double the rent that he was wont to pay to the lord , and that shall be in place of reliefe . old nat . br . fol. . somewhat more hereof you may reade in anno . ed. prim . statut . prim . and kitchin fol. . ca. reliefe . and glanvile , lib. . cap. . the feudists also write of this at large . among others vincentius de franchis descis . . saith , that relevii solutioest quaedam extrinseca praestatio à consuetudine introducta , quae non inest feudo , quodque soluitur proconsirmatione , seu renouatione investiturae & possessionis . see heriot . this leo the emperour novella . calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . by the auncienter ciuile lawe it is termed ( introitus ) l. penult . § . alumno . Π de legatis . skene de verb. signif . saith , that reliefe is a french word from the latine relevare , which is to releeue or take vp that which is falen . for it is giuen by the tenent , or vassall being of perfect age , after the expiring of the wardeship to his lord , of whome he holds his land by knights seruice , that is , by ward and reliefe ; and by payment thereof he relieues , and ( as it were ) raiseth vp againe his lands , after they were fallen downe into his superiours hands by reason of wardship , &c. remainder ( remanentia ) signifieth in our common law , a power or hope to inioy lands , tenements , or rents after the estate of another expired . for example , a man may let land to one for terme of his life , and the remainder to another for terme of his life . litleton cap. atturnment : fol : . and this remainder may be either for a certaine terme , or in fee simple , or fee taile , as might be proued by many places in the law writers . but in steed of the rest , take brooke , titulo done & remainder , fol : . glanuile . lib. . ca. pri : in fine hath these words : not andum quod nec episcopus , nec abbas , quiaeorum baroniae sunt de eleemozina domini regis , & antecessorum eius , non possunt de dominicis suis aliquam partem dare ad remanentiam sine assensu & confirmatione demini regis . where it appeareth that dare ad remanentiam is to giue away for euer . to the same effect doth he vse it cap. . eiusdem libri in these words , speaking of the lords of mancrs during the minority of their wards . nihil tamen de haereditate , de iure alienare possunt ad remanentiam . in the like sort doth bracton vse it . lib. . cap. . in fine : and also lib. . tracta . . cap. . nu . . see the new booke of entries . verbo remainder . remembrancers of the exchequer ( rememoratores ) be three officers , or clerks , one called the kings remembrancer . anno . el. cap. . the other the lord treasurers remembrancer , vpon whose charge it seemeth to lye , that they put all iustices of that court , as the lord treasurer and the rest , in remembrance of such things , as are to be called on , and delt in for the princes behoofe . the third is called the remembrancer of the first fruites . of these you may read something . anno . rich. . stat . pri : cap. . & . to the effect aboue specified . these anno . ed. . cap. . be called clerks of the remembrance . it seemeth that the name of this officer is borowed from the ciuilians , who haue their ( memoriales ) qui sunt notarii cancellariae in regno subiects officio questoris . lucas de penna . c. lib. . tit . . nu : . the kings remembrancer entreth in his office all recognicances taken before the barons for any the kings debts , for apparences , or for obseruing of orders . he taketh al bonds for any of the kings debts , or for apparance , or for obseruing of orders , and maketh proces vpon them for the breach of them . he writeth proces against the collectors of customes , subsidies and fiueteenthes , for their accompts . all informations vpon penall statutes are entred in his office . and all maters vp on english bils in the exchequer chamber are remaining in his office . he maketh the bils of compositions vpon penall lawes : taketh the stalments of debts : maketh a record of a certificate deliuered vnto him by the clerk of the starre-chamber of the fines there set , and sendeth them to the pipe . he hath deliuered vnto his office all maner of indentures , fines , and other euidences whatsoeuer , that concerne the assuring of any lands to the crowne . he yearely in crastino animarum readeth in open court the statute for the elections of shyreeues , and giueth those that chuse them their oath : he readeth in open court the oath of all the officers of the court , when they are admitted . the treasurers remembrancer maketh proces against all shyreeues , escheators , receiuers , and bayliffs for their accoumpts . he maketh proces of ( fieri facias ) and extent for any debts due to the king , either in the pipe , or with the auditors . he maketh proces for all such reuenew as is due to the king by reason of his tenures . he maketh a record , whereby it appeareth whether shyreeues and other accountants pay their profers dew at easter and michelmas . he maketh another record , whereby it appeareth , whether shyreeues and other accountants keepe their daies of prefixion . all extreats of fines , issues , and amerciaments set in any courts of westminster , or at the assises , or sessions , are certified into his office , and are by him deliuered to the clerk of extreats to write proces vpon them . he hath also brought into his office all the accoumpts of customers , controllers , and other accoumptants to make thereof an entry of record . the remembrancer of the first fruites , taketh all compositions for first fruites and tenthes : and maketh proces against such as pay not the same . remittere , commeth of the french ( remettre . i. restituere , reponere ) and signifieth in our common law , a restitution of one that hath two titles to lands or tenements , and is seised of them by his later title , vnto his title that is more auncient , in case where the later is defectiue . fitz. nat . br . fol. . f. dyer fol. . nu . . this in what case it may be graunted to any man , see in brooke , titulo remitter : and the terms of law . the doctor and student of this mater hath these words : if land discend to him that hath right to that land before , heshalbe remitted to his beter title , if he will. capite nono . fol. . b. see the new booke of entries : verbo remitter . render , commeth of the french ( rendre . i. reddere , retribuere , restituere ) and signifieth in our common lawe , the selfe same thing . for example , this word is vsed in leuying of a fine . for a fine is either single , by which nothing is graunted , or rendred backe againe by the cognizee , to the cognizoumor double , which conteineth a graunt , or render backe againe of some rent , common , or other thing , out of the land it selfe to the cognizor , &c. west . parte . . symbol . titulo fines . sect . . & . f. also there be certaine things in a maner that lie in prender , that is , which may be taken by the lord , or his officer , when they chaunce , without any offer made by the tenent , as the ward of the body of the heire , and of the land , escheats , &c. and certaine that lie in render , that is , must be deliuered or answered by the tenent , as rents , reliefes , heriots , and other seruices . idem , eodem sect . . c. also some service confisteth in seisāce , some in render . perkins reseruations . . rent ( reditus ) commeth of the french ( rent . i. vectigal , pensitatio annua ) and signifieth with vs , a summe of mony or other consideration issuing yearly out of land or tenements . plouden , casu browning . fol. . b. & fol. . a. . b. there be three sorts of rents obserued by our common lawyers : that is , rent seruice , rent charge , and rent seck . rent seruice is , where a man houldeth his land of his lord by fealty , and certaine rent , or by fealty , seruice , and certaine rent . litleton lib. . ca. . fol. . or that which a man , making a lease to another for terme of yeares , reserueth yearely to be paid him for the same . termes of lawe . verbo rents . who giueth this reason thereof , because it is in his libertie , whether he will distraine , or bring an action of debt . a rent charge is that , which a man making ouer an estate of his land , or tenements to another , by deede indented either in in fee , or fee tayle , or lease for terme of life , reserueth to himselfe by the said indenture a summe of money yearely to be paide vnto him with clause of distresse , or to him and his heires . see litleton , vbi supra . a rent seck , otherwise a drie rent , is that , which a man making ouer an estate of his land or tenement , by deede indented , reserueth yeerely to be paid him without clause of distresse mentioned in the indenture . litleton vbi . supra . and termes of the lawe . verbo rents . see the newe expositour of lawe termes : see plowden , casu browning . fol. . b. see the differences betweene a rent , and an annuitie . doctor and student . cap. . o●dialo . primo . reparatione facienda , is a writ , which lieth in diuers cases , whereof one is , where three be tenents in common , or ioynt tenents , or pro indiviso , of a mille , or house which is fallen into decay , and the one being willing to repaire it , the other two will not . in this case , the party willing shall haue this writ against the other two . fitzh . nat . br . f. . where read at large the form & many vses of this writ . as also in the regi . orig . fol. . b. repeale , commeth of the french ( rappel . i. revocatio ) and signifieth in our common lawe euen the same ; as the repeale of a statute , rastall titulo repeale . brooke vseth repellance in this signification , titulo repellance . repleader ( replacitare ) is to plead againe , that which was once pleaded before . rastall , titulo repleader . see the newe booke of entries , verbo repleder . replegiare . see replevie . see second deliuerance . replevie ( pleuina ) is the bringing of the writ called replegiarifacias , by him that hath his catel or other goods distreined by another for any cause , and putting in suerty to the shyreue , that upon the deliuery of the thing distreined , he will persiew the action against him that distreined . termes of lawe . see replegiare . it is vsed also for the bayling of a man. pl. cor . fol. . . . & west pri . cap. . & cap. . anno . ed. . replegiare de averus , is a writ brought by one , whose catell be distreined or put in pound vpon any cause by another , vpon surety giuen to the shyreeue to persiew the action in lawe . anno . h. . cap. . fitzh . nat . br . fol. . see the register originall , of diuers sorts of this writ called replegiare . in the table , verbo eodem . see also the register iudiciall , fol. . & . see also the newe boke of entries . verbo replevin . see dyer . fol. . nu . . replevish ( replegiaro ) is to let one to mainprise vpon suretie . anno . ed. . cap. . replication ( replicatio ) is an exception of the second degree made by the plantife vpon the first answer of the defendant , west . parte 〈◊〉 . symbol . titulo chauncerie . sect . . & westm . . anno . . ed. pri . cap. . this is borowed from the ciuilians , de replicationibus , lib. . institutio . titulo . . report ( reportus ) is in our common lawe a relation , or repetition of a case debated , or argued . which is sometime made to the court , vpon reference from the court to the reporter , somtime to the world voluntarily , as ploydens reports , & such like . reposition of the forest , was an act whereby certaine forest grounds being made purlieu vpon view , were by a second view laide to the forest againe . manwood , parte pri . pag. . reprisels ( reprisalia ) are all one in the common and ciuill law . represalia est potestas pignorandi contra quemlibet de terya debitoris data creditori pro iniuriis & damnis acceptis . vocabularius vtriusque iuris . this among the auncient romans was called ( clarigatio ) of the verb ( clarigo . i. res clarè repeto ) it is called in the statute anno . ed. . stat . . cap. . lawe of marque , of the german word march. i. terminus , limes . and the reason may be , because one destitute of iustice in another territory , redresseth himselfe by the goods belonging to men of that territorie , taken within his owne bounds . requests ( supplicum libelli , curia requisitionum ) is a court of of the same nature with the chauncerie , redressing by equitie the wrongs that poore men doe suffer at their hand , whose might they are not able to withstand either in lawe or otherwise . it tooke beginning as some men thinke , by commission from king henry the . before which time the masters of requests had no warrant of ordinary iurisdiction , but travailed betweene the prince and petioners , by direction from the mouth of the king. guins preface to his readings , but see court of requests . resceyt ( receptio ) seemeth to be an admission of a third person to pleade his right in a cause formerly commenced , betweene other two . see the newe booke of entries . verbo resceit . v. aide prier . the ciuilians call this admissionem tertii pro suo interesse . of this you haue one example in the termes of lawe , viz. if tenent for terme of life , or tenent for terme of yeares bring an action : he in the reuersion commeth in , and prayeth to be receiued to defend the land , and to plead with the demandant . many more you may haue in brooke , titulo , resceite . fol. . see perkins dower . . ●eceit is also applied to an admittance of plee , though the controuersie be but betweene two onely . brooke estoppell . in many places . resceyt of homage , is a relatiue to doing homage , for as the tenent , who oweth homage , doth it at his admission to the land : so the lord receiueth it . kitchin fol. . see homage . rescous ( rescussus ) commeth of the french ( rescourre se rescourre du danger . i. asserere se ab iniuria ) it signifieth in our common law a resistance against a lawfull authoritie : as for example , if a baylife , or other officer vpon a writ doe arrest a man , and another ( one or more ) by violence doe take him away , or procure his escape : this act is called , a rescus cassanaeus in his booke de consuetud . burg. hath the same word coupled with ( resistentia ) fol. . whereby it appeareth , that other nations do vse this word in the same signification that we doe , or the very like . it is also vsed for a writ , which lyeth for this act called in our lawyers latine ( breue de rescussu ) whereof you may see both the forme and vse in fitzh . nat . br . fol. . and the register originall : fol : . see the new booke of entries . verbo rescous . this rescous in some cases is treason , and in some felony . crompton . iustice fol : . b. reseiser ( reseisire ) is a taking againe of lands into the kings hands , whereof a generall liuery , or ouster le main was formerly missued by any person or persons , and not according to forme and order of law . of this see stawnf . praeroga : . where it is handled at large . see resumption . resiance ( resiantia ) seemeth to come of the french ( rasseoir , see rasseoir . i. residere ) and signifieth a mans aboad or continuance in a place . old nat : br . fo . . whence also commeth the participle ( resiant ) that is continually dwelling , or abiding in a place . kitchin , fol. . it is all one in truth with residence , but that custome of speach tyeth that onely to persons ecclesiasticall . reseruation , signifieth that rent or seruice which the graunter in any graunt tyeth the grauntee to performe vnto him , or them , or the lord paramonte . perkins reseruations : per totum . residence ( residentia ) commeth of the latine ( residere ) and is peculiarly vsed both in the canon and common lawe , for the continuance or abode of a parson or vicar vpon his benefice . the default whereof ( except the partie be qualified , and dispenced with ) is the losse of tenne pounds for euery moneth , anno . henr. . cap. . resignation ( resignatio ) is vsed particularly for the giuing vp of a benefice into the hands of the ordinarie , otherwise called of the canonists ( renunciatio . ) and though it signifie all one in nature with the word ( surrender ) yet it is by vse more restreined to the yeelding vp of a spirituall liuing , into the hands of the ordinarie , and surrender to the giuing vp of temporall lands into the handes of the lord. and a resignation may now be made into the hands of the king , as well as of the diocesan , because he hath supremam authoritatem ecclesiasticam , as the pope had in time past . plowden . casu grendon . fol. . a. resort , is a word vsed properly in a writ of ayle , or cousenage , as discent is in a writ of right . ingham . respectu computi vice-comitis habendo , is a writ for the respiting of a shyreeues accompt vpon iust occasion , directed to the treasurer and barons of the exchequer . register fol. & . respight of homage , ( respectus homagii ) is the forbearing of homage , which ought first of all to be performed by the tenent , that holdeth by homage . which respight may be occasioned vpon diuers good reasons : but it hath the most frequent vse in such as hold by knights seruice in capite : who because the prince cannot be at leasure to take their homage , do pay into the exchequer , at certaine times in the yeare , some small summe of money to be respighted , vntill the prince may be at leasure to take it in person . responsions ( responsiones ) seeme to be a word vsed properly and especially by the knights of s. iohn of ierusaiem , for certaine accompts made vnto them by such as occupied their landes or stockes . anno . h. . cap. . responsalis , is he that commeth for another at the day assigned for his appearance in court , bracton . fleta seemeth to make a difference betweene atturn atum , essoniatorem & responsalem , lib. . cap. . § . officium : as if essoniator came onely to alledge the cause of the parties absence , be he the demandant or tenent , and responsalis came for the tenent not onely to excuse his absence , but also to signifie what triall he meant to vndergoe , viz. the combat or the countrie . lib. . cap. . § . si autem . a man in auncient time could not appoint an atturney for him , without warrant from the king . fleta , eodem cap. . in fine . see atturney . this word is vsed in the canon lawe , et significat procuratorem vel eum qui absentem excusat . cap. cùm olim propter . extra . de rescript . restitution ( restitutio ) is a yeelding vp againe of any thing vnlawfully taken from another . it is vsed in the common law , most notoriously for the setting him in possession of lands or tenements , that hath bene vnlawfully disseised of them , which when it is to be done , and when not , see cromptons iustice of peace . fol. . b. &c. vsque . restitutione extracti ab ecclesia , is a writ to restore a man to the church , which he had recouered for his sanctuarie being suspected of felonie . register ori . fol. . a. restitutione temporalium , is a writ that lyeth in case , where a man being elected , and confirmed bishop of any diocesse , and hath the princes royall assent thereunto , for the recouery of the temporalities , or baronie of the said bishopricke with the appurtenances . and it is directed from the king to the escheatour of the countie , the forme whereof you haue in the regist . origin . fol. . and in fitz. nat . br . fol. . where you may read also , that it lyeth for those abbots and priors newly elected and confirmed , that were of the kings foundation . resummons ( resummonitio ) is compounded twice , that is , of re , sub , and moneo : and signifieth a second summons and calling of a man to answer an action , where the first summons is defeated by any occasion , as the death of the partie , or such like . brook tit . see resummons . fol. . see of these foure sorts , according to the foure diuers cases in the table of the register iudiciall . fol. . see also the new booke of entries , verbo . reattachement , & resummons . resumption ( resumptio ) is particularly vsed for the taking again into the kings hands , such land or tenements , as before vpon false suggestion , or other error , he had deliuered to the heire , or graunted by leters patents to any man. brooke , titulo repellance , & resumption . fol. . thus it is applyed , anno . h. . cap. . see reseiser . retainer , commeth of the french ( retenir . i. detinere , retinere ) it signifieth in the cōmon law , a seruant not meniall nor familiar , that is not continually dwelling in the house of his lord or master , but onely vsing , or bearing his name , or liuery . this liuery was wont to consist of hats ( otherwise hoods ) badges , and other suits of one garment by the yeare . anno pri : r. . cap. . these were taken by great lords , many times vpon purpose of maintenance , and quarels , and therefore they haue beene iustly , for the better freedome of law , forbidden by many statutes : as namely by anno pri : r. . cap. . vpon paine of imprisonment , and greeuous forfeiture to the king : and againe anno eiusd . cap. . & anno . eiusedem , cap. . & . and anno pri . h. . cap. . by the which the lords offending herein should make ransome at the kings will , and any knight or esquire hereof duly attainted , should loose his said liuery , and forfeit his see for euer ; and any yeoman wearing the liuery of the king , or other lord , should be imprisoned , and make raunsome at the kings will , onely some fewe excepted in the said statute : which statute is farder confirmed , and explaned anno . h. . cap. . & an . . eiusd . cap. . & anno . eiusd . cap. . & anno . h. . ca. . and yet this offence was so deeply rooted , that edward the fourth was driuen to confirme the former statutes , and farder to extend the meaning of them , as appeareth by the statute made anno . ed. . cap. . adding an especiall paine of fiue pounds to euery man that giueth such liuery , and as much to euery one so retained , either by writing , oath , or promise , for euery moneth . yet is not this fault so well looked vnto , but that there is need of more pregnant lawes for the redresse thereof , or at the least beter execution of those , that be already made . these be by the feudists called ( affidati . ) sic enim dicuntur , qui in alicuius fidem & tutelam recepti sunt . neapol . constitu . li. . titulo . and as our retainers are here forbidden : so are those ( affidati ) in other countries . retraxit , is an exception against one that formerly commenced an action , and withdrew it , or was non-suit before triall . brooke . titulo . departure in despight , & retraxit . fol. . see also the new booke of entries : verbo deperter & verbo retrar it . returne ( returna ) commeth of the french ( retour . i. reditio , reuersio , recursus ) and in our common law , hath two particular applycations , as namely the return of a writ by shyreeues , and bayliffs , which is nothing but a certificate made to the court , whereunto the writ directeth him , of that which he hath done , touching the seruing of the same writ . and this among the ciuilians is called certificatorium . of returnes in this signification , speake the statutes of westm . . cap. . anno . ed. prim . and tractatus contra vice-comites & clericos , with diuers other , collected by rastal , titulo returne of shyreeues . so is the returne of an office , stawnf . prarog . fol. . a certificate into the court , of that which is done by vertue of his office : see the statutes of dayes in banke . anno . h. . & anno . h. . cap. . and in this signification hilary terme is said to haue . returnes . viz. octabis hilarii , quindena hilarii , crastino purificationis , octabis purificationis : and easter terme to haue . returnes , viz. quindena paschae , tres paschae , mense paschae , quinque pasche , & crastino ascensionis . and trinity terme . returnes . i. crastino trinitatis , octabis trinitatis , quindena trinitatis , tres trinitatis . and michaelmas terme . returnes . sc . octabis michaelis , quindena michaelis , tres michaelis , mense michaelis , crastino animarum , crastino martini , octabis martini , quindena martini . the other application of this word is in case of repleuy . for if a man distraine catell for rent , &c. and afterward iustifie or avowe his act , that it be found lawfull , the catell before deliuered vnto him that was distrained vpon security giuen to follow the action , shall now be returned to him , that distrained them . brooke , titulo returne d'auers & hommes . fol. . you shall finde this word often vsed in fitzh . nat : br . as appeareth in the word returne in his table : but in all those places it hath the one or the other of these two significations . returno habendo , is a writ , which lyeth for him that hath auowed a distresse made of catell , and proued his distresse to be lawfully taken for the returne of the catell distrained vnto him , which before were expleuied by the party distrained , vpon suerty giuen to persiew the action . terms of law , verbo repleuin . returnum aueriorum , is a writ iudiciall , graunted to one impleaded for taking the cattell of another , & vniust deteining of them contra vadium & plegios , and appearing vpon summons is dismissed without day , by reaso● that the plaintife maketh default , and it lyeth for the returne of the cattell vnto the defendant , whereby he was summoned , or which were taken for the security of his apparence vpon the summons . register iudiciall . fol. . a. returnum irreplegiabile , is a writ iudiciall sent out of the common plees to the shyreeue , for the finall restitution or returne of catell to the owner , vniustly taken by another as dammage seisant , and so found by the iury before iustices of assise in the county . for which see the register iudiciall fo . . a. b. reue , aliâs greue ( praefectus ) is made of gerefa the saxon word for a gouerner . lamb : explica : of saxon words , verb. profectus , and that by reiecting the first sillable , which ( he saith ) among the saxons is vsuall . it signifieth in our common law , the bayliffe of a fraunchis or maner , and especially in the west parts . of this you may see kitchin. fol. . see greue . see shyreeue . see also of this word m. verstigan in his restitution of decayed intelligence . cap : . speaking much to the same effect . reuels , seemeth to be deriued from the french word ( reueiller . i. excitari , vel expergefieri ) it signifieth with vs sports of daunsing , masking , comedies , tragedies , and such like vsed in the kings house , the houses of court or of other great personages . the reason whereof is , because they are most vsed by night , when otherwise men commonly sleepe , and be at rest . in the kings house there is an officer called the master of these reuils , who hath the ordering , and dispositions of these pastimes in the court . reuenewe , is a french word , signifiing as much as reditio , reuersio , reditus . it signifieth properly the yearely rent that groweth to euery man from his lands and possessions . reuersion ( reversio ) signifieth in the comon lawe , a possibility reserued to a mans selfe and his heires , to haue againe lands or tenements made ouer conditionally vnto others , vpon the defect or fayling of such condition . the difference betweene a remainder , and a reversion is , that a remainder is generall , and may be to any man but to him that graunteth , or conueieth the land , &c. for terme of life onely or otherwise : a reuersion is to himselfe from whome the conveiance of the land , &c. proceeded , and commonly perpetuall , as to his heires also , litleton , fol. . in fine . see cooke lib. . sir. hugh cholmleis case , fol. . a. and yet a reuersion is sometime confounded with a remainder . cooke li. . tookers case , fol. . b. plowden , casu hille . fol. . b. what this word reuersion in a deede doth carie . see litleton lib. . ca. . revocation ( revocatio ) is the calling backe of a thing granted . of these you haue diuers in the register originall , as reuovocationem brevis de audiendo & terminando . fol. . revocationem praesentationis . fol. & . revocationem protectionis , fol. . revocationem specialium iusticiariorum quia , &c. fol. . reviving , is a word metaphorically applied to rents and actions and signifieth a renewing of them , after they be extinguished : no lesse then if a man , or other liuing creature should be dead , and restored to life . see diuers examples in brooke titulo . revivings of rents , actions , &c. fol . rewardum . see regard . reweye . anno . . elizab. cap. . rie , is a saxon word signifiing as much as regnum , in latine . camd. britan. pag. . riens passe perle fait , is a forme of an exception taken in some cases to an action . see brooke titulo estaunger al fait or record . riens dans le gard , was a chalenge to a iurie , or enquest within london . for that foure sufficient men of liuelyhood to the yearely value of fortie shillings aboue all charges , within the same city , and dwelling and hauing within the same ward , weare not impanelled therein . but it is abrogated by the statute . anno . h. . cap. . rier countie ( retrocomitatus ) seemeth to come of the french ( arriere . i. posterior ) and in the statute . anno . ed. . cap. is opposite to the open countie and by comparison of that statute with westm . . cap. . it appeareth to be some publique place , which the shyreeue appointeth for the receipt of the kings money after the ende of his countie . fleta saith that it is dies crastinus . post comitatum . lib. . cap. . § . quia iusticiarii . right rectum . see recto . ridings , be the names of the parts or diuisions of yorke shire , being three in number . viz. west riding , east riding , and north riding . camd. britan. pag. . this word is mentioned in the statute , anno . h. . cap. . & . h. . cap. . and m. west . parte . symbol . titulo inditements saith , that in inditements within that countie , it is requisite that the towne , and the riding be expressed . sect . . q. right in the court. anno . r. . stat . . cap. . see rectus in curia . ringhead , anno . elizab. cap. . riot ( riottum ) commeth of the french ( rioter . 〈…〉 rixari . ) it signifieth in our common lawe , the forcible doing of an vnlawfull act , by three or more persons assembled togither for that purpose . westm . parte . . symbol . titulo , inditements . sect . . p. the differences and agreements betweene a riot , a rout , and vnlawfull assembly . see in m. lamb. eirenarcha . lib. . cap. . &c. see the statute . . m. . cap. . & kitchin. fol. . who giueth these examples of riots : the breach of inclosures , or banks or conduicts , parks , pownds , houses , barnes , the burning of stacks of corne . m. lamberd vbi supra . vseth these examples : to beate a man , to enter vpon a possession forcibly , see route . and vnlawfull assembly . see also cromptons iustice of peace diuers cases of riots , &c. fol. . see trihings . ripiers ( riparii ) be those that vse to bring fish from the sea coast to the inner parts of the land . camd. britan. pag. . it is a word made of the latine ( ripa ) . rise ( oriza ) is a kinde of corne growing in spaine , asia , and india , with the which both good foodes and medicines be made . whereof if you desire farder knowledge , reade gerards herball . lib. . cap. . this is mentioned among merchandize to be garbled in the statute . anno . iaco. cap. . roag ( rogus ) seemeth to come of the french ( rogue . i. arrogans ) it signifieth with vs an idle sturdie beggar , that wandring from place to place without pasport , after he hath beene by iustices bestowed vpon some certaine place of aboade , or offered to be bestowed , is condemned to be so called . who for the first offence , is called a roag of the first degree , and punished by whipping , and boring through the grissell of the right eare with a hot yron an inch in compas : & for the secōd offence , is called a roag of the second degree , and put to death as a felon , if he be aboue . yeares ould . see the statute , anno . elizab. cap. . & . eiusdem , cap. . & anno . cap. . if you will know who be rogues , and to be punished as rogues by lawe , reade lamberds eirenarcha . lib. . cap. . see rout. robberie ( robaria ) commeth of the french ( robbe . . vestis ) and in our common lawe , a felonious taking away of another mans goods from his person or presence , against his will , putting him in feare , and of purpose to steale the same goods . west . parte . symbol . titulo inditments , sect . . this is sometime called violent theft . idem , eodem . which is felonie for two pence . kitchin fol. . and . lib. assis . . robaria is a word vsed also in other nations , as appeareth by the annotations vpon mathaeus de afflictis , descis . . nu . . pag. . see skene verbo reif . libro de verbo significat . see cromp. iustice of peace . f. . b. roberdsmen , anno . ed. . cap. . & anno . r. . cap. . m. lamb. interpreteth them to be mighty theeues . eironarch . lib. . cap. . pag. . rodknights , aliâs radknights , are certaine seruitours , which hould their lands by seruing their lord on horseback . bracton lib. . cap. . nu . . faith of them , debent equitare cum domino suo de manerio in manerium . vel cum domini vxore . fleta . lib. . cap. . § . continetur . rodde ( pertica ) is otherwise called a pearche , and is a measure of . foote and an halfe long , and in stafford shire . foote , to measure land with . see ●earch . rofe tyle , aliât creast tyle , is that tyle which is made to lay vpon the rudge of the house . anno . ed. . cap. . rogation weeke ( dies rogationum ) is a time well knowne to all , being otherwise called gang weeke . the reason why it is so termed , is because of the especiall deuotion of prayer and fasting , then inioyned by the church to all men , for a preparatiue to the ioyfull remembrance of christs glorious ascension , and the descension of the holy ghost , in the forme of cloven tongues shortly after . and in that respect the solemnization of carnall matrimony is forbidden from the first day of the said weeke , vntill trinitie sunday . see aduent . roode of land ( roda terrae ) is a certaine quantitie of land being the fourth part of an acre . ann . . eliz. ca. . see perch . roll , aliâs roule ( rotulum ) commeth of the french ( rouler . i. volvere , pervolvere , rotare ) whence also is the french ( role ou roule . i. volumen , catalogus , codex ) it signifieth with vs a shedule of paper , or parchment turned , or wound vp with the hand to the fashion of a pipe . so is it vsed in stawnf . plees of the crowne , fol. . the chequer rolle of the kings house , out of the statute anno . h. . cap. . which signifieth nothing but the catalogue , wherein the names of the kings houshould seruants are set downe . and anno . rich. . cap. . stat . pri : there is mention made of the great rolle of the exchequer which seemeth otherwise to be called the pipe . the roules is also a place destinated by ed. . to the the keeping of the rols , or records of the chauncery situat betweene the two temples in london . camd : britan : pag. . the master whereof is the second man in chauncery , and in the absence of the lord chaunceler , or keeper , sitteth as iudge , being commonly called the master of the rols . see master of the rols . romescot , is compounded of rome , and scot , as you would say , the tribute due to rome : it is called by mathaeus westmonasteriensis , consuetudo apostolica , à qua , neque rex , neque archiepiscopus , vel episcopus , abbas , vel prior , aut quilibet in regno immunis erat : and was first graunted by offa a saxon king. camd. britan. pag. . see peter pence : and roger houeden parte poster . suorum annalium . fol. . a. in henrico secundo . roundlet , is a certaine measure of wine , oyle , &c. containing . gallons and a halfe , anno . r. . cap. . route ( routa ) is a french word signifying a companie , or flocke : as ( vne grande route de gents , on de cerfs . i. grex hominum , longa ceruorum series . ) it signifieth in our common lawe , an assembly of three persōs or more , going on about forcibly to cōmit an vnlawfull act , but yet doe it not , westm. parte . sym . titulo indictments . sect . . o. m. lamberd thus saith of it : a route is the same , which the germans yet call rot , meaning a band or great companie of men gathered together , and going about to execute , or executing indeed , any ryot or vnlawfull act : and ( saith more ) it is said properly of the multitude that assembleth themselues in such disorderly sort , for their common quarels . as if the inhabitants of a towneship doe assemble to pull downe a hedge , or pale , to haue their common , where they ought to haue none , or to beate a man , that hath done them some publike offence or displeasure . but the statute of . ed. . stat . prim . cap. vnico . which giueth processe of outlawrie against such as bring routes into the presence of the iustices , or in affray of the people , and the statute of . rich. . cap. . that speaketh of riding in great routes to make entrie into lands , and to beate others , and to take their wiues , &c. doe seeme to vnderstand it more largely . and it is a route , whether they put their purpose in execution or no : if so be , that they do goe , ride , or moue forward after their meeting . broke , titulo riot . . & . so ( as it seemeth ) a route should be a speciall kind of vnlawfull assembly : and a riot the disorderly fact committed generally by any vnlawfull assembly . howsoeuer it be , two things are common both to riot , route , and vnlawfull assembly : the one , that three persons at the least bee gathered together : for so it is commonly taken at this day , as i haue learned : the other , that they being together , do breed disturbance of the peace , either by signification of speech , shew of armour , turbulent gesture , or actuall and expresse violence : so that either the peaceable sort of men be vnquieted , and feared by the fact , or the lighter sort , and busie bodies emboldened by the example . thus farre m. lamberd in his eirenarcha . lib. . cap. . &c. where you may reade more worth the noting , though too long to be copied out . see riot , and vnlawfull assembly . kitchin giueth the same definition of a route , fol. . rowing of clothes anno . h. . cap. . royall assent ( regius assensus ) is that approbation which the king giueth to a thing formerly done by others : as to the electiō of a bishop by deane and chapter . which giuen , then he sendeth an especiall writ to some person for the taking of his fealtie . the forme of which writ you may see in fitz. nat . br . fol. . c. and also to a bill passed by both the houses of parlament . cromptons iuris . fol. . which assent being once giuen , the bill is indorsed with these wordes : le roy veult , i. it pleaseth the king. if he refuse to agree vnto it , then thus : le roy aduisera . . the king will yet thinke of it . see parlament . royalties ( regalia vel regalitates ) be the rights of the king. iura regis . hotoman in verbis feudal : verbo . regum feudistae . and so are they vnderstoode of vs likewise , who otherwise call them the kings prerogatiue . see prerogatiue . and some of these be such as the king may graunt vnto common persous , some so high , as may not be separated from his owne crowne priuatiuè as the ciuilians terme it , though cumulatiuè he may . see bracton lib. . cap. . these be in some sort expressed in the first of samuell . cap. . but these generalities bee specified more at large by those lawyers that write of this point . among whom i especially commend mathaeum de afflictis vpon the title of the feuds . quae sint regalia . being the . title of the third booke , as some diuide them , but according to others the . of the second booke : where be named in the text . specialties of royalties . see also hotomans commentaries in lib. . feudor . cap. . rouge crosse . see herald . rudge washed kersey . i. made of fleece wooll washed onely on the sheepes backe . anno . eliz. cap. . s sables . see furre . sac ( sacha vel sacca ) is a royalty or priuiledge touching plee , and correction of trespasses of men within a maner . rastal , titulo expos : of words : where he addeth this reason : because ( saith he ) sac in english is ( encheson ) in french : as to say , for sick , sack , pour quel encheson . i. for what hurt . that which our common lawyers call ( encheson ) the true french man termeth ( achoise . i. occasionem ) as ( achoise fort grande , occasio ampla ) or els may encheson come of ( encheoir . i. incidere ) which we in english call an accident , or incident . but all this is farre enough from ( sac ) and from the interpretation thereof , as it is a liberty or priuiledge . bracton hath the word , as stawnford not eth out of him , pl. cor : li. pri : cap : . but neither of them both doe particularly interpret it . bractons words be these lib. . tract . . cap. . vel si sit aliquis qui de concessione domini regis talem habeat libertatem ( sicut sock & sack , tolnetum , team , infang thefe , & hutfanghhefe ) qui inuētus fuerit seisitus de alique latrocmio , sicut hondhabende & backberend , tales habent regalē potestatē : & vnde qui tales libertates habēt , habebūt prisonam suam de talibus , quia possunt tales in curia sua iudicare . of the which mater he speaketh also in lib. . cap. . nu . . & . and againe lib. . tracta . . cap. . but in none of these places he giueth any interpretation of the word . saxon in his description of england defineth sack to be a forfeiture , as doth rastall vbi supra . fol , . m. camden in his britan : pag. . speaking of lincoln . hath these words : eduardo confessore regnante , erant ( ex censuali libro loquor ) . mansiones hospitalae , & duodecim lageman habentes socam & sacam . to all these adde bracton , lib. . cap. . where he writeth thus . sunt & aliaeres quasi sacrae , quae personam regis respiciunt , & aliquando transferri non possunt , nisi iusticiariis domini rogis , ficut visus franciplegii , placita de vetito nannio , emendatio transgressionis assisarum , iudicium latronum , sicut de illis qui habent sock & sack , & huiusmodi omnia , quae pertinent ad pacem , & per consequens ad coronam . i am informed , that the word ( sack ) in the saxon tongue doth properly signifie so much as ( causa ) with the latines : whence wee in english haue the word ( sake ) as ( for whose sake . ) m. skene de verbor . signif . verbo , sacke , writeth thus . in some old books it is called placitum & emenda de transgressione hominum in curia nostra . in the lawes of king edward set foorth by m. lamberd , fol. . it is written , ( sacha ) sacha autē est , si quilibet aliquē nomin atim de aliquo calumniatus fuerit , & ille negauerit , foris factura probationis vel negationis , ( si euenerit ) sua erit . which may be called the amercement payed by him , who denieth that thing , which is proued against him to be true , or affirmeth that thing , the contrarie whereof is true . thus farre m. skene . fleta of this hath these words : sake significat acquietantiam de secta ad comitatum , & hundredum . lib. pri . cap. . § . sake . but by all those i find not any reason of the word , that is , why this liberty should be so called , and therefore i must leaue it to beter antiquaries or linguists . see rog. h. part . poster . suorum annaliū . f. . saccus cum brochia , seemeth to be a seruice of finding a sacke and a broch to the king by vertue of a tenure , for the vse of his armie . bract. li. . c. . n. . sacke of wooll , ( saccus laenae ) is a quantitie of wooll , that containeth . stone , and a stone , fourteene pounds , anno . ed. . stat . . cap. . see sarplar . sacramento recipiendo , quòd vidua regis se non maritabit sine licentia regis , is a writ or commission to one for the taking of an oath of the kings widowe , that she shall not marie without the kings licence . register original , fol. . a. safe conduict . see saulf conduict . salus , is a coine of gold stamped by king henry the sixth in fraunce , which onely come , with another of blanes of eight pence a peice , was current in those places of fraunce , where king henry was obeyed . stowes annals , pag. . safe pledge ( salvus plegius ) is a suretie giuen for a mans apparence against a day assigned , bracton lib. . cap. . nu . . where it is also called certus plegius . sailing ware . anno prim . r. . cap. . sak . see sac. sakebere , in britton cap. . & . seemeth to be he that is robbed , or by theft depriued of his goods : with whome bracton also agreeth , lib. . tracta . . cap. . nu . . iu these words : furtum vero manifestum est , vbi latro deprehensus sit feisitus de aliquo latrocini o. sc . hondhabende , & backberend , & insecutus fuerit per aliquem , cuius res illa fuerit . qui dicitur sacaburthe , &c. or sathaber , as stawnford calleth it , pl. cor . lib. pri . cap. . the interpretation of this word i find not . onely m. skene de verb. interpretatione . verbo . ( sacreborgh ) thinketh it should rather be written . sickerborgh , of ( sicker . i. securus ) and ( borgh . i. plegius ) signifiing a sure cautioner or suretie which one findeth to another for theft , or slaughter : whereof he offereth to accuse him iudicially . for in this case it behoueth the persiewer to oblige , or binde himselfe into the hands of the officer , or before a iudge competent with sicker borgh , or sure caution , that he will persiew in forme of lawe . and by this meanes it may be , that the accuser was wont with vs to be called sakbere of a circumstance , because in this case he was surely bound to persiew . sycker is also an old english word , signifiing as much as sure , secure , or certaine , and see borowe . salet , is a headpeece . anno . & . phil & mar. it seemeth to come from the french ( salut . i. salus ) . salmon sewse , seemeth to be the young fry of salmon , quasi salmon issue . anno . r. . stat . pri . cap. . salva gardia , is a securitie giuen by the king to a straunger , fearing the violence of some of his subiects , for seeking his right by course of lawe : the forme whereof see in the register originall . fol. . a. b. sanctuarie ( sanctuarium ) is a place priviledged by the prince , for the safegard of mens liues , that are offenders , being founded vpon the lawe of mercie , and vpon the great reuerence , honour , and deuotion , which the prince beareth to the place , whereunto he graunteth such a priuiledge . of this you may read a sufficient treatis in stawnf . pl. cor . lib. . cap. . this seemeth to haue taken beginning from the cities of refuge , which moyses appointed them to flie vnto for safegard of their liues , that had by casualty slaine a man. exodus , cap. . in bastardly imitation whereof , first the athenians , then romulus erected such a place of immunity , which they , & he after them called ayslum . polidor : virg : de inuentione rerum , lib. . cap. . the emperours of rome made the places of their owne statues or images , a place of refuge , as appeareth . cod. lib. . titulo . de iis qui ad statuas confugiunt : as also the churches : eodem , titulo . de iis qui ad ecclesias confugiunt , &c. but among all other nations , our auncient kings of england seeme to haue attributed most to these sanctuaries , permitting them to shelter such , as had committed both felonies , and treasons , so that within fourty daies they acknowledged their fault , and so submitted themselues to banishment : during which time , if any man expelled them , if he were laye , he was excommunicated , if a clerk , he was made irregular . but after fourty daies noe man might releeue them . stawnf . vbi supra . see of this the new booke of entries : verb sanctuary : and fleta : lib. . cap. . and how by degrees they haue beene taken away , you may read partly in him , and partly in the statutes . a. . h. . ca. . & anno . eiusdem , ca. . & anno . eiusd . ca. . & anno . eiusdem , cap. . & anno pri : ed. . cap. . & ann . . eiusdem , cap. . & cap. . & anno . eiusdem , cap. . see abiuration . salarie ( salarium ) is a recompence or consideration made to any man for his paines or industry bestowed vpon another mans busines . so called , as pliny saith , qui tam necessarium quam sal homini . the word you haue anno . . ed. . ca pri . salmon pipe , anno . h. . cap. . is an engine to catch salmons and such like fish . sandall , anno . rich. . cap. . is a merchandize brought into england . and it seemeth to be a kinde of wood brought out of india . for ( sandal ) in french so signifieth , and in latine it is called santalum . sarcling time , or time of sarcling . seemeth to be all one with hey seele . or the time when the country man weedeth his corne . and it proceedeth from the latine sarculare , to rake or weed . or from the french ( sarcler ) which hath all one signification . sarpler ( sarplera lanae ) is a quantitie of woll . this in scotland is called serplathe , and conteineth fourescore stone , for the lords in the counsell in anno . decreed foure serpliathes of packed wolle to containe . score stone of woll , by the trafique of merchants now vsed . the merchants vse to fraught for their goods to flaūders , by the sack , to fraunce , spaine , and england , by the tunne , and to dansken and the easter seas , by the serpliāthe . skene de verbo . significatione , verbo . serpliathe . with vs in england a loade of wolle ( as i haue beene informed ) consisteth of . todde , each todde consisting of two stone , and each stone of . pound . and that a sack of wolle is in common accoumpt equall with a load : and a sarpler ( otherwise called a pocket ) is halfe a sack. further that a packe of wolle is a horse loade , which consisteth of . stone . two pounds . fleta lib. . cap. . saith that all our english measures are compounded of the peny sterling , which weigheth . wheate cornes of the middle sort . and that . of those pence make an ounce , and . ounces a pound in weight , or . shillings in number , and that . pound of wheat maketh a ialon or a galon as we now call it , and eight galons a bushell , and . bushels a common quarter . also that . ounces of the quantitie aforesaid doe make a merchants pounde . and that . such pound and a halfe , make a stone , and that . stone make a waigh , and that two waighes or . stone , make a sack of wolle , which ought to waigh a quarter of wheate , and that . sacks make a last . so that a waigh , and a sarpler seemeth to be all one , but that the sarpler is the case , and the weigh respecteth the quantitie of the wolle it selfe : and that a loade and a sacke is all one . saunkfin , is a pharse vsed by britton . cap. . for the determination , or finall end , of the lineall race , or discent of a kindred . it seemeth to come from the french ( sang. i. sanguis ) and fine . i. finitus . ) sauer de default , is word for word , to excuse a default . this is properly , when a man hauing made default in court , commeth afterward and alleadgeth good cause , why he did it , as imprisonment at the same time , or such like . newe booke of entries . verbo . sauer de default . saulfe conduict ( salvus conductus ) is a security giuen by the prince , vnder the broad seale to a straunger , for his quiet comming in and passing out of the realme , touching which you may see the statuts . anno . h. . cap. . & anno . eiusdem . ca. . & anno . h. . cap. pri . the forme of this see in the register originall , fol. . stawnford , was a man very learned in the common lawes of the land , wherein he wrote . bookes one termed the plees of the crowne , the other the princes prerogatiue . he florished in the daies of ed. the sixth , and of queene mary , being in queene maries daies a iudge , and knighted . scandalum magnatum , is the especiall name of a wrong done to any high personage of the land , as prelates , dukes , earles , barons , and other nobles : and also of the chanceler , treasurer , clerk of the priuy seale , steward of the kings house , iustice , of the one bench or of the other , & other great officers of the realm , by false news : or horrible & false messages , whereby debates and discords betwixt them and the commons , or any scandall to their persons might arise . anno . r. . cap. . scauage , otherwise called shewage is a kind of tolle , or custome exacted by maiors , shyreeue , and baylifs of cities and borough townes , of merchants for wares shewed to be soulde within their precincts , which is forbidden by the statute . anno . h. . cap. . it commeth of the saxon word ( sceawe ) to behold or view , or to shewe . whence is the word ( sceaw-stowe ) a theater or shew place , a beholding place . m. verstegan in his restitution of decayed intelligences . litera s. scire facias , is a writ iudiciall , most commonly to call a man to shew cause vnto the court , whence it is sent , why execution of a iudgement passed , should not be made . this writ is not graunted before a yeare and a day be passed after the iudgement giuen , ould nat . br . fol. . scire facias vpon a fine , lieth after a yeare and a day from the fine levied . otherwise it is all one with the writ hababere facias seisinam . west . part . . simb . titulo fines , sect . . see an . . edwardi . sta. . cap. . v. anno . eliz. cap. . the register originall and iudiciall also in the table sheweth many other diuersities of this writ , which reade . see also the newe booke of entries . verb. scire facias . scyra . camd. britan. pag. . & . see shyre . scot , seemeth to come of the french ( eseot . i. symbolum ) rastall saith it is a certaine custome , or common tallage made to the vse of the shyreeue , or his baylifes . saxon in his description of england . cap. . saith thus : scot a gadering to worke of bailes : what he meaneth god knoweth i thinke the place is corruptly printed . scot ( saith m. camden out of mathewe of westm : ) illud dicitur , quod ex diuersisrebus in vnum aceruum aggregatur . in the lawes of william the conquerour , set forth by m. lamberd : fol. . you haue these words , et omnis francigena , qui tempore edwardi propinqui nostri fuit in anglia , particeps consuetudinum anglorum , quod dicunt ane hlote , & aue scote persol●antur secundum legem anglorum . scot and lot. anno . h. . ca. . signifieth a custumary contribution laid vpon all subiects after their hability . roger houeden writeth it aulote & auscote , in principio henrici secundi . scotall ( scotalla ) is a word vsed in the charter of the forest . ca. . in these words , as pupilla oculi hath them , parte . cap. . nullus forestarius vel bedellus , faciat scotallas , vel garbas colligat , vel aliquam collectam faciat . &c. m. manwood parte pri . of his forest lawes . pag. . thus defineth it . a scotall is where any officer of the forest doth keepe an alehouse within the forest , by colour of his office , causing men to come to his house , and there to spend their mony , for seare of hauing displeasure . it seemeth to be compounded of scot and ale. scutagio habendo , is a writ that lieth for the king or other lord against the tenent , that houldeth by knights seruice , ( wherein homage , fealtie , and escuage be conteined ) being to make a viage to warre against the scots , or french men . for in those cases , this writ issueth out to all such tenents to serue by themselues , or a sufficient man in their place , or else to pay , &c. see fitzh . nat . br . fol. . it is vsed in the register originall , for him to recouer escuage of others , that hath either by seruice or fine performed his owne to the king. fo . . a. sealer ( sigillator ) is an officer in chauncerie , whose dutie is to seale the writs and instruments there made . seane fish , anno . iacob . ses . . cap. . sea ne fish , ibidem , seemeth to be that fish which is taken with a very great and long net called a seane . second deliuerance ( secunda deliberatione ) is a writ that lyeth for him who after a returne of catel repleuied adiudged to him that distreined them , by reason of a default in the party that replevied , for the repleuying of the same catell againe , vpon securitie put in for the redeliuerie of them , if in case the distresse be iustified . new booke of entries . verbo , replevin in second deliuerance . fol. . col . . v. dyer fol. . n. . . secta ad curiam , is a writ that lyeth against him , who refuseth to performe his suite either to the countie , or court baron . fitz. nat . br . fol. . secta facienda per illum qui habet eniciam partem , is a writ to compell the heire that hath the elders part of the cobeires , to performe seruice for all the coparceners , regist . origin . f. . a. secta molendini , is a writ lying against him , that hath vsed to grind at the mille of b. and after goeth to another mille with his corne . register origin . fol. . fitz. nat . br . fol. . but it seemeth by him , that this writ lyeth especially for the lord against his franke tenents , who hold of him by making suite to his mill , eodem . see the new book of entries . verbo secta ad molendinum . by likelihood this seruice is also in fraūce . for balduinui ad titulum de servitutibus pradiorum , in institut . hath these words : bannalis mola nova & barbarae seruitutis species est , qua hodie passim rustici coguntur vna mola , quam bannalem vocamus , vnoque furno vti ad quaestum domini , qui fortasse praeest iurisdictioni eius pagi . sectam proferre , est testimonium leg alium hominum qui contractui inter eos habito interfuerint praesentes producere . fleta lib. . cap. . § . nullus . and secta is vsed for a witnes . idem , lib. . cap. . § . final . habes tamen sectam vnam vel plures , &c. secta ad iusticiam faciendam , is a seruice due for ●a mans see to be performed , ●eing by his see bound thereunto . bracton . lib. . cap. . num . . secta vnica tanium facienda pro pluribus haereditatibus , is a writ that lyeth for that heyre that is distreined by the lord to more suites then one , in respect of the land of diuers heires descended vnto him . register orig . fol. . a. sectis non faciendis , is a writ , that lyeth for one in wardship to be deliuered of all suites of court during his wardship , register origin . fol. . b. see other vse of ●●is writ , eodem , fol. . touching women that for their dower ought not to performe suite of court. seounda superoneratione pastura , is a writ that lyeth , where measurement of pasture hath bene made , and he that first surcharged the common , doth againe surcharge it , the measurement notwithstanding . register origin . fol. . oldnat . br . fol. . secundarie , ( secundarius ) is the name of an officer next vnto the chiefe officer : as the secundarie of the fine office : the secundarie of the counter : which is ( as i take it ) next to the shyreeue in london in ech of the two counters . secundarie of the office of the priuie seale . anno . ed. . cap. . secundaries of the pipe two : secundarie to the remembrancers , two , which be officers in the exchequer . camden . pag. . securitatem inueniendi , quòd se non diuertat ad partes exteras fine licentia regis , is a writ that lyeth for the king against any of his subiects , to stay them from going out of his kingdome . the ground whereof is this , that euery man is bound to serue and defend the commonwealth , as the king shall thinke meet . fitz. nat . br . fol. . securitate pacis , is a writ that lyeth for one , who is threatened death or daunger , against him that threateneth , taken out of the chauncerie to the shyreeue : whereof the forme and farder vse you may see in the register origin . fol. . b. and fitzh . nat . br . fol. . se defendendo , is a plee for him that is charged with the death of another , saying that he was driuen vnto that which he did , in his owne defence , the other so assaulting him , that if he had not done as he did , he must haue beene in perill of his owne life . which daunger ought to be so great , as that it appeare incuitable . as stawnford saith in his plees of the crowne . li. . ca. . and if he doe iustifie it to be done in his owne defence , yet is he driuen to procure his pardon of course from the lord chanceler , and forfeiteth his goods to the king. as the said authour saith in the same place . seignior ( dominus ) is borowed of the french ( seigneur ) it signifieth in the generall signification , as much as lord : but particularly it is vsed for the lord of the see , or of a maner , euen as ( dominus ) or ( senior ) among the feudists , is he , who graunteth a a fee or benefite out of his land to another . and the reason is , ( as hotoman saith ) because hauing graunted the vse and profite of the land to another : yet the propertie . i. ( dominium ) he still reteineth in himselfe . see hotoman in verbis feudal . verbo dominus , & senior . seignior in grosse , seemeth to be he that is lord , but of no maner , and therefore can keepe no court . fitz. nat . br . fol. . b. see seignorie . seignourage . anno . h. . stat . . cap. . seemeth to be a regalitie or prerogatiue of the king , whereby he challengeth allowance of gold and siluer brought in the masse to his exchange , for coyne . seignorie ( dominium ) is borowed of the french ( seigneury . i. ditio , dominatus , imperium , principatus , potentatus . ) it signifieth peculiarly with vs , a maner , or lordship . seignorie de soke mans . kitchin fol. . seignorie in grosse , seemeth to be the title of him that is not lord by meanes of any maner , but immediatly in his owne person : as tenure in capite , whereby one holdeth of the king , as of his crowne , is seignorie in grosse : because it is held of the king for the time being , and not of the king , as of any honour , maner , &c. kitchin , fol. . see seignior . seisin ( seisina ) is borowed of the french ( seisine . i. possessio , ) and so it signifieth in our common lawe : and to seise , is to take possession . primier seisin ( prima seisina ) is the first possession . see primier seisin , of the french word ( seisir ) is made a latine ( seisire , ) vsed by the canonists . cap. clericis . § nos igitur non semel de immunitate ecclesiae , num . . as also the ciuilians . guido . pap. singula . . seisire est etiam possessionem tradere . tiraquellus in tractatu . le mort saisit le vif . pag. . num . . seisin with our common lawyers , is two fold : seisin in fact , and seisin in lawe . perkins dower . . . seisin in fact is , when a corporall possession is taken : seisin in lawe , is when something is done , which the lawe accompteth a seisin , as an inrolment . seisin in lawe , is as much as a right to lands and tenements , though the owner be by wrong disseised of them . perkins tenent per le courtesie . . . and it seemeth by ingham , that he who hath had an houres possession quietly taken , hath seisin de droit , & de claime , whereof no man may disscise him by his owne force or subtiltie , but must bee driuen to his action . § . bref denovel disseisin . sir edward cooke lib. . calleth it seisin in lawe , or seisin actuall . fol. . a. the ciuilians call the one ciuilem possessionem , the other naturalem . seisiua habenda quia rex habuit annum , diem , & vastum , is a writ that lyeth for the deliuery of seisin to the lord , of his land , or tenements , that formerly was conuicted of felony , after the king in the right of his prerogatiue hath had the yeare , day , and wast . rog. orig . fol. . a. selion ( selio ) is borowed of the french ( sellon . i. terra elata inter duos sulcos ) in latine ( porca ) in english a ridge , or land . it signifieth euen so with vs also : and is of no certaine quantity , but some time conteineth an acre , sometime halfe an acre , sometime more , and sometime lesse . west . parte . symbol : titulo . recouery : sect : . therefore crompton in his iurisdictions : fol : . saith , that a selion of land cannot be in demaund , because it is a thing vncertaine . seneshall ( senescallus ) is a french word , but borowed from germany , being ( as tilius saith ) compounded of schal . i. servus , aut officialis , and ( gesnid . . familia ) we english it a steward . as the high seneshall , or steward of england : pl. cor : fol. . high seneshall or steward , and south seneshall , or vndersteward . kitchin fol. : is vnderstood for a steward , or vndersteward of courts . seneshal de l'hostel de roy , steward of the kings houshold . cromptons iurisdictions . fol. . senescallo & mareshallo quod non teneant placita de libero tenemento , &c. is a writ directed to the steward or marshall of england , inhibiting them to take cognisance of any action in their court , that concerneth either freehold , dept , or couenant . register orig . fol. . a. . b. senie , aliâs , sene , ( sena ) is a leafe of a medicinable herbe , that bringeth foorth stalkes of a cubite high , purging phlegmaticke , cholericke , and also melancholicke humors , without great violence . the farder vse whereof you may reade in gerrards herbal . lib. . cap. . this is mentioned among other drugs and spices to be garbled . anno . iacob . cap. . septuagesima is a sunday certaine , and alwayes the third sabbath before shrouesunday , from the which vntill the octaues after easter , the solemnizing of mariage is by the canon lawes forbidden . the reason whereof is giuen , for that all this time vntill easter , is a time of mourning for the fall of adam , and for the miserie of man thereof insuing . and easter with the octaues thereof is a time of christs glorification , and so of ours also in him , for his , and by him our conquest ouer death and sinne . and that therefore all carnall affection ought , during that space , to be wholy mortified in vs see quinquagesima , see aduent , see rogation weeke . sequatur sub suo periculo , is a writ , that lyeth , where a summons ad warrantizandum is awarded , and the shyreeue returneth , that he hath nothing , whereby he may be summoned . for then goeth out an ( aliâs ) and ( pluries ) and if he come not at the ( pluries ) then shall go out this writ . old nat . br . fol. . sequestration ( sequestratio ) is a separating of a thing in controuersie from the possession of both those that contend for it . and it is double : voluntarie , or necessarie voluntarie , is that which is vsed by the consent of each partie . necessarie is that , which the iudge of his authoritie doth , whether the parties will or not . it is vsed also for the act of the ordinarie disposing of office , the goods and chatels of one deceased , whose estate no man will meddle with . dyer . fol. . num . . & fol. . num . . & fol. . nu . . & fol. . num . . as also in the gathering of the fruites of a benefice voide , to the vse of the next incumbēt . anno . h. . cap. . fortescue cap. . and in diuers other cases . sequestro habendo , is a writ iudiciall for the dissoluing of a sequestration made by the bishop , at the kings commaundement , of the fruites of a benefice , thereby to compell the parson to appeare at the suite of another : for the parson vpon his apparence may haue this writ , for the release of the sequestration . egist . iudicial . fol. . a. sergeant ( seruiens ) commeth of the french ( sergeant . i. satelles , accensus ) a man of the guard , a kind of souldier , so called , because he was saepè aecitus ad res necessarias in exercitu peragendas . calepin . m. skene de ver . sign . verb. seriant , hath these words : sergeant commeth from sergent : quae est vox composita de ( serrer ) quod est , includere , & gent , quod pro gente , populo vel plebe vsurpatur . itaque seriandus dicitur , qui iussu magistratus , quemlibet de populo reum crimin is in carcerem coniicit , seu includit . this word sergeant is diuersly vsed in our law , and applyed to sundrie offices and callings . first , a sergeant at lawe , ( or of the coyfe ) is the highest degree taken in that profession , as a doctor is in the ciuill lawe . and to these , as men best learned , and best experienced of all others , is there one court seuered , to plead in by themselues : ( and that is the court of common-plees ) where the common lawe of england is most strictly obserued . these are made by the kings mandat , or writ , directed vnto them , commaunding them vpon a great penaltie , to take vpon them that degree by a day certaine therein assigned . dyer fol. . num . . see counte . and of these one is the kings sergeant , being commonly chosen by the king out of the rest , in respect of his great learning , to pleade for him in all his causes : as namely , in causes of treason . pl. cor . lib. . cap. prim . and of these there may be more if it so please the king. this is called in other kingdomes , aduocatus regius . cassan . de consuet . burgund . pag. . with what solemnitie these sergeants be created , reade fortescue , cap. . this word sergeant seemeth to be vsed in brition for an officer belonging to the countie : who , in his first chapter speaking of appeales made before the corones , hath these words in effect : and then let the coroner cause his appeale to be entred , and the names of his sureties . and afterward let commaundement be giuen to the sergeant of the countrie , where the felonie was committed , that he haue the bodie of the persons appealed at the next countie . and it is probable , that this officer was all one with him , whom bracton in his fifth booke cap. . num . . calleth seruientem hundredi . of whome he hath these words : post probationem defaltae , faciet seruiens hundreds incontinenti summonitionem , vel affidet partibus diem , si praesentes sint , ad proximum comitatum , &c. this is like to be the same officer , which in auncient time was called the bayliffe of the hundred , who ( as is declared in baylife ) had the like authoritie in his hundred , that the shyreeue had in the countie , though inferiour to him , and to be controlled by him , as appeareth by diuers auncient presidents set downe by kitchin in his tractat of returns in court hundred , court baron , &c. i read also in bracton lib. . tractat : . ca. . of the kings sergeant , who is like to be also an officer in the county , in these words : speaking of a woman ranished , and what shee ought to doe for the persuite of the rauisher & sic ire debet ad praepositum hundredi , & ad seruientem domini regis , & ad coronatores , & ad vice-comitē , & ad primū comitatū faciat appellū suum . and againe eod . li : c : . in these words : & si sine secta cognouerit se inde esse latronem coram vicecomite , vel coronatore , vel seruiente domini regis , &c. and againe lib. . tractat : . cap. . nu . . in these words . quid si seruiens domini rogis dederit partibus diem ad comitatum , &c. and by fleta it seemeth , that this terme was generall to the shyreeue , coroner , and bayliffes of counties , who in his sixth booke . cap : . § . . hath these worde : cum quis igitur senserit dominum suum vel curiam suam sibi de recto defecisse , tunc ostenso hoc vicecomiti , statim praecipiat balliuo hundredi , vel itineranti , vel alteri seruienti regis , quòd assumptis sibi liberis , & legalibus hominibus de vicineto illo , ad curiam illius domini , si quem habuerit accedat , &c. and to helpe this probability , i finde that the steward of a maner is termed seruiens manerii . coke vol : . copyhould cases . fo . . a. then is there a sergeant at armes ( seruiens ad arma ) whose office is to attend the person of the king , anno . h. . ca. . to arrest traitours , or men of worth or reckoning , that doe , or are like to contemne messengers of ordinary condition for other causes , and to attend the lord high steward of england sitting in iudgement vpon any traytour , and such like : pl : cor . lib. . cap. pri : of these by the statute anno . r. . cap. . there may not be aboue thirtie in the realme . this sort is called del espee . in the custumary of nor. ca. . which read . there be also some two of these sergeants of the parlament , one for the vpper , another for the lower house , whose office seemeth to serue for the keeping of the doores , and the execution of such commaundements , especially touching the apprehension of any offender , as either house shall thinke good to inioyne them . see cromptons iurisdictions , fol. nono . see also vowels , aliâs hookers booke of the order of the parl. there is one of these that belongeth to the chauncery , who is also called a sergeant of the mace , as the rest may be , because they cary maces by there office . he of the chauncery attendeth the lord chaunceler , or keeper in that court , for the meanes to call all men into that court , is either by this officer or by sub poena . west . pa. . sym . tit . chauncery sect. . then be there sergeants that be the chiefe officers in their seuerall functions within the kings houshould , which be chiefe in their places , of which sort you may read many named in the statute anno . h. . ca. . there is also a more base kinde of sergeant of the mace , whereof there is a troupe in the city of london , and other townes corporate , that serue the maior or other head officer , both for mesniall attendance , and mater of iustice . kitchin fol. . and these are called seruientes ad clauā . new book of entries . ver . scire facias : in mainperners . f. . c. . sergeantie ) seriantia ) commeth of the french ( sergeant . i. satelles ) & fignifieth in our cōmō law , a seruice due to the king frō his tenēt holding by such seruice . for this seruice cannot be due to any l. from his tenēt , but to the king onely . and this is either grand , or petit , as you shall find at large set downe in chivalrie . of this also you may read bra l. . c. . &c. . n. . . & brit. . c. . n. . & . see seruice . m. skene de ver . signifi . calleth this sergeanterie , defining and diuiding it as we doe in england . servientibus , are certaine writs touching seruants , and their masters violating the statutes made against their abuses . which see in the regist . orig . fol. . & . & . service ( seruitium ) though it haue a generall signification of dutie toward them vnto whome we owe the performance of any corporall labour , or function : yet more especially in our common lawe , it is vsed for that seruice , which the tenent by reason of his see , oweth vnto his lord. and so doth it signifie among the feudists also for hotoman thus defineth it . seruitium est munus obsequii clientelaris . verbo servitium . de verbis feudal . or rather declareth it so to be defined . lib. feud . . titulo . § . . it is sometime called seruage , as anno . i. r. . cap. . this seruice is either militarie , and noble , commonly called knights seruice : or clownishe & base , commonly called socage . of both which reade chiualry , as also socage . and bracton lib. . cap. . seruice is divided by britton into personall , and reall . cap. . where he maketh wards , mariags , homage , releifs , and such like , to be reall seruices : personall , i imagine , may those be called , that are to be performed by the person of the tenent , as to follow his lord into warre , &c. the ciuilians diuide munera in this sort , either in personalia , or patrimonalia . then bracton vbi supra num . . distributeth seruitium in intrinsecum , & extrin secum aliás forinsecum . & medium . seruitium intrinsecū is that , which is due to the capitall lord of the maner , forinsecum is that which is due to the king , and not to the capitall lord , but when he goeth in his owne person to serue : or when he hath satisfied the king for all seruices whatsoeuer . and againe in the same place he saith , it is called fornisecum , quia fit , & capitur foris , sive extra seruitium , quod fit domino capitali . see forein seruice . of this reade him vbi supra , more at large . and fleta , lib. . ca. . § . continetur . seruitia quae nec intrinseca nec forinseca sunt , bract. handleth in the same chap. n. . saying thus : sunt etiam quaedam consuetudines , quae nec dicuntur intrinsecae , nec forinsecae : sed sunt quaedam seruitia concomitantia , sicut seruitia regalia , & militaria , & etiam homagia : & ideo in chartis non sunt exprimenda . quia si homagium praecesserit , & regale seruitium , sequitur exinde quòd ad capitalem dominum pertinebit releuium , & custodia , & maritagium : siue seruitium sit militare , vel seriantia propter exercitum , &c. here then reliefe , ward , and mariage , be those seruices , which he calleth , nec intrinseca , nec forinseca , sed concomitantia . seruice is also divided into frank seruice , and base , or villenous seruice : the one bracton , calleth ( liberum seruitium ) the other ( seruitium villanum ) or ( villenagium ) lib. . cap. . nu . pri . this villenagium is socage in base tenure , as to dung the lords ground , to serue him so many daies in haruest , to plash his hedges , &c. or els copy hould . all other seruices seeme to be frank . seruice consisteth some in seisance , some in render . perkins reseruations . . seruice seemeth also to be diuided into continuall , otherwise annuall , and casuall , or accidentall . an example of the former is the seisin of rent , and of the other , seisin of reliefe . sir ed. cookes reports . lib. . bevils case . fol. . a. see copy hould : see socage . see ayde . seruice secular . anno . ed. ca. . which may be contrary to spirituall , viz. the seruice diuine commaunded to spirituall men by their founders . servitours of bils , seeme to be such seruāts or messengers of the marishall belonging to the kings bench , as were sent abroad with bils , or writs to summon men to that court , being now more ordinarily called tip. stafs . servitiis acquietandis , is a writ iudiciall , that lieth for one distreined for seruices by iohn , which oweth and performeth to robert , for the acquitall of such seruices . register iudicial , fol. . a. & . b. sessions ( sessiones ) signifieth in our common lawe a sitting of iustices in court vpon their commission : as the sessions of oyer , and terminer . pl. cor . fol. . quarter sessions , otherwise called generall sessions . anno . elizab. cap. . or open sessions . ibidem . opposite wherevnto are especiall , otherwise called priuie sessions , which are procured vpon some speciall occasion , for the more speedie expedition of iustice in some cause . cromptons iustice of peace . fol. . what things be inquirable in generall sessions see cromptons iustice of peace , fol. . petit sessions , or statute sessions , are kept by the high constable of euery hundred , for the placing of seruants , anno . eli. cap. quart . in fine . sessour . anno . ed. . cap. . seemeth to signifie so much as assessing or rating of wages at this day , set clothes , anno . . henric. . cap. . setwell , valeriana , is a medicinal herb , the nature and diuers kinds whereof you haue in gerards herball , lib. . cap. . the roote of this is mentioned among drugs to be garbled , anno . . ia. cap. . seuerance , is the singling of two or more , that ioyne in one writ , or are ioyned in one writ . for example , if two ioyne in a writ de libertate probanda , and the one afterward be non-suite , here seuerance is permitted ; so that , notwithstanding the non-suite of the one , the other may seuerally proceede . fitzh . nat . br . fol. . i. k. of this see brooke , titulo severance , & summons . fol. . for it is harder to knowe in what cases seuerāce is permitted , then what it is . there is also seuerāce of the tenents in an assise , when as one or two , or more disseisours appeareth vpon the writ , and not the other . new booke of entries , fo . . col . . & seuerance in attaints . eod . fol. . col . . and seuerance in debt . verbo . debt . fol. . col . . see the saide booke , verbo seuerance . severall taile ( tallium separatum ) is that whereby land is giuen and entayled seuerally to two . for example , land is giuen to two men , and their wiues , and to the heires of their bodies begotten : the donees haue ioynt estate for their two liues , and yet they haue seuerall inheritance : because the issue of the one shall haue his moyety , and the issue of the other , the other moyetie , kitchin ibidem . severall tenancie ( tenura separalis ) is a plee , or exception taken to a writ , that is laide against two as ioynt , which are seuerall , brooke titulo , severall tenancie , fol. . sewantly wouen , an . . el. c. . sewar , hath two significations with vs , one applied to him that issueth or commeth in before the meate of the king , or other great personage , and placeth it vpon the table : the other to such passages , or gutters as carie water into the sea , or riuer , in lawyers latine called sewera , an . . h. . c. . which is also vsed in common speach for commissioners authorised vnder the broad seale to see draines , and ditches well kept , and maintained in the marish and fenne countries , for the better conueyance of the water into the sea , and the preseruing of the grasse for feede of catell . stat . anno . h. . cap. . it is probable to bring this word from the french ( issir ) or ( issue ) as if we should call them ( issuers ) because they giue issue or passage to the water , &c. and the latine word ( suera ) sometime vsed in these commissions for these draines , is a competent reason of this coniecture : see eitzh . nat . br . in oyer and terminer . yet i finde in an old french booke conteining the officers of the king of englands court as it was aunciently gouerned , that he whom in court we now call sewer , was called ( asseour ) which may seeme to come from the french ( asseour ) wherein his office in setting downe the meat vpon the table is well expressed . and sewer as it signifieth an officer , is by fleta latined assessor : li. . ca. . all which argueth that the descent of this word is from the french ( asseoir ) as signifiing a disposing or placing of any thing , or ( as we say in english ) an assessing of any person toward the performance of a dutie . sexagesima . see septuagesima . shanckes see furre . shares . see flotzon . shewing , is to be quit of attachment in any court , and before whom soeuer in plaints shewed and not avowed . newe exposition of law termes . verbo , shewing . see scauage . shipper . anno . iac. ses . . ca. . is a dutch word , signifying the master of the ship . shire , ( comitatus , shira ) is a saxon word , signifying satrapian , of the verbe ( scyran . . partiri . ) lamb. in his explication of saxon words . verbo centuria . the word is in vse so rife , that euery child vnderstandeth it . who first thus diuided this land into shires , appeareth by m. camdens britan. pa. . in these words . nee dum tamen florente heptarchia , anglia ita in comitatus diuisa , ( sic enim vulgò vocant ) sed postea , cum solus aluredus rerum potiretur . vt enim germani maiores nostri , teste tacito , iura per pagos vicosque reddebant , & centeni ex plebe comites ad rem administrandam adiungebantur : sic ille ( vt ingulfi croulandensis verbi . vtar ) primus angliam in comitatus diuisit , quod indigenae rapinas committerent exemplo & colore danorum . comitatus porrò in centurias . i. hundreds , & decimas . i. tythings , distribus fecit : praecepitque vt omnis indigena in aliqua esset centuria , & decima . praefectos etiam preuinciarum , qui antea vicedomini vocabantur , in duo officia diuisit , viz iudices , nunc iusticiarios : & vice-comites , qui adhuc idem nomen retinent . see the rest . shyreeue ( vicecomes ) is compounded of these saxon words ( scyre . 〈◊〉 satrapia ) and ( reue i. praefectus ) and accordingly he is the cheife officer vnder the king of his shyre , or county . see ferme in lacies nobility : pag. . m. camden : pag. . thus describeth his office : singulis verò annis , nobilis aliquis ex incolis praeficitur , quem vicecomitem , quasi vicarium comitis , & nostrâ linguá shief . i. comitatus praepositum vocamus : qui etiam comitatus , vel prouinciae quaestor rectè dici potest eius enim est publicas pecunias prouincia suae conquirere , mulctas irrogatas , vel pignoribus ablatis colligere , & aerario inferre , indicibus praesto adesse , & eorum mandata exequi , duodecim viros cogere , qui in causis de facto cognoscunt , & ad iudices referunt ( iudices enim apud nos , iuris solùm , non facti sunt iudices ) condemnatos ad supplicium ducere , & in minoribus litibus cognoscere . in matoribus autemius 〈◊〉 iusticiarii , quos itiner antes ad 〈◊〉 sas vos ant , qui quotannis bos . comitatus bis adeunt , vt de causis cognoscant , & de incarceratis fententiam ferant . henricus secundus hos it inerantes instituit , vel poteùs restituit . ille ( vt inquit mathaeus parisiensis ) consilio filii sui & episcoporum constituit iusticiar os per sex paries regni ; in qualibet parte tres , qui iurare nt quod cuilibet ius suum conseruarent illaesum . of the antiquitie and authoritie of this officer , reade sir edward cookes reports . lib. . mittons case . the maner of appointing these shyreeues in henry the sixt his dayes , see in fortescue . cap. . fol. . b. the name vicecomes commeth from the normans , as shyreeue commeth from the saxons . for in the fifth chapter of the grand custumarie , you haue ( viconte ) which the latine interpreter turneth ( vicecomitem ) whose office you shall find in that chapter to be very like vnto ours . the forme of the shyreeues oath see in the register origin . fol. . b. of this reade m. skene de verbor . signif . verbo shyreeue : where he largely describeth the office of the shyreeue in scotland , in a discourse woorth the reading . shyreeue weke of winchester and of essex . anno . r. . cap. . & . shire clerke , seemeth to bee the vnder shyreeue . anno . h. . cap. . it is vsed sometime for a clerk in the county court , deputie to the vndershyreeue . see sir edward cookes . booke of reports in mittons case . shire moote , see turne . shorling , and morling seeme to be words to distinguish fels of sheepe : as if shorling should signifie the fels after the fleeces be shorne off the sheepes backe , and morling the fels fleane off after they be killed or dye alone . anno . ed. . cap. prim . & anno . eiusdem , cap. . & anno . eius . cap. . & anno . eiusdem , cap. . shot commeth of the saxon word , sceate , signifying pecuntam aut vectigal . lamberds explicatiō of saxon words , verbo primitiae . shrof metall . sicut aliâs , is a writ sent out in the second place , whereas the first sped not . coke libro quart . folio . b. it is so called of these words expressed in it . for example . iacobus dei gratia , &c. vicecomiti kan : salutem : praeciptmus tibi ( sicut aliâs praecepimus ) quod non omittas propter aliquam libertatem in balliua tua , quin eam ingrediaris , & capias . a. b. de c. in comitatu tuo labourer , &c. as in the first capias . lamb : in his tractat of processes in the end of his eiranarcha . sidemen aliâs quest men , be those that are yearely chosen according to the custome of euery parish , to assist the church wardens in the inquiry and presenting such offenders to the ordinary , as are punishable in the court cristian . significauit , is the writ de excommunicato capiendo , which issueth out of the chauncery vpon a certificate giuen by an ordinary of a man that standeth obstinately excommunicate by the space of fourty daies , for the laying him vp in prison without bayle , or mainprise , vntill he submit himselfe to the authority of the church . and it is so called , because of the word ( significauit ) mentioned in the writ ( de excōmunicato capiendo ) which haue relation to the certificate , sent into the chauncery by the ecclesiasticall iudge . there is also another writ in the register orig . of this name , fo : . a. directed to the iustices of the bench , willing them to stay any suite depending betweene such and such , by reason of any excommunication alledged against the plaintiffer because the sentence of the ordinarie that did excommunicate him , is appealed from , and the appeale yet hangeth vnderided . which see : and see fitz. nut . br . de excommunicato capiendo . fol. . n. but especially . a. where you may find writs of this name in other cases . sine asseusu capituli , is a writ that lyeth in case where a deane , bishop , prebendarie , abbot , prior or master of hospitall , alieneth the land held in the right of his house , without the consent of the chapter , couent , or fraternitie . for in this case his successor shall haue this writ . fitzh . nat . br . fol. . si non omnes , is a writ of association , whereby if all in cōmission cannot meete at the day assigned , it is permitted , that two or more of them may finish the businesse . see association . and fitz. nat . br . fol. . & . c. and register origin . fol. . . & . si recognoscant , is a writ that lyeth for a creditour against his depter for money numbred , that hath before the shyreeue in the countie court , acknowledged himselfe to owe vnto his creditor such a summe receiued of him in numeratis pecunits . the forme of the writ is this : rex vicecomiti salutem . praec . tibi quod si a. recognoscat se debere r. . solid . fine vlteriori dilatione , tunc ipsum distringas ad praedictum debitum eidem r. sine dilatione reddendum . teste , &c. old nat . br . fol. . skawe . anno . ed. . cap. . skyvinage . anno . h. . cap. . a proper name , signifying the precincts of caleis . sluse ( exclusa ) is a frame to keepe , or let water out of a grounde . soc ( soca ) is a word signifiing a power , or libertie of iurisdiction , as appeareth by these words out of bracton , sunt quidam barones , & alii libertatem habentes , sc : soc , & sac , tol & thean , infangthefe , & vtfangthefe , & isti possunt iudicare in curia sua , eum qui inuentus fuerit iufra libertatem suam seisitus de aliquo latrocinio manifesto . & li. . tractat . . cap. . in the lawes of king edward set out by m. lamberd , fol. . you haue these words : socha est quod si aliquis quarit aliquid in terra sua , etiam furtum , sua est iusticia , si inuentum fuerit , an non . saxon in the description of britany , cap. . saith , that sock is a suite of court and that thereof commeth soken . but the signification of the word ( as i haue bene credibly informed ) is as much as inquisitio which we in moderne english , terme ( seeking ) of this ( sok ) skene de verborum signifie . speaketh to this effect . sok is an ould word vsed in charters and feofments , which in sundry old bookes conteining the municipiall law of this realme , is called secta de hominibus suis in curia , secundum consuetudinem regni . so after my opinion he that is infeoffed with sck. ( which now we call soit ( but we in england suite ) hath power to hould courts within his owne baronie , in which , homines sui should giue soyt . thus farre m. skene . of this fleta hath these words . in huiusmodi verò maneriis ( speaking of the kings maners ) erant olim liberi homines liberè tenentes , quorum quidam cum per potentiores è tenementis suis eiecti fuerant , & eadem postmodum in villenagium tenenda resumpserūt : & quia huiusmodi tenentes cultores regis esse dinoscuntur , eis provisa fuit quies ne sectas facerent ad comitatus vel hundredōs , vel ad aliquas inquisitiones , assisas vel iuratas , nisi in manerio tantùm , dum tamen pro terra , quorum congregationem tunc socam appellarunt . & hinc est quòd socmanni hodie dicuntur esse . a soco enim deriuantur , quorum tonementa sunt villenagium domini privilegiatum , & ideo dicuntur glebae ascriptitii , eo quòd ab huiusmodi glebis amoueri non deberent , quam diu soluerent debitas pensiones : nec compelli poterunt ad buiusmodi tenementa tenenda , contra suas voluntates , eo quòd corpora sua sunt libera . nec obstabit longa seruitutis possessio ad libertatē extinguendam , quamuis ad merchetum sanguinis sui compulsus fuerit quis pro tenemento reddendo . nulla enim servitus ratione praescriptionis temporis potest liberum sanguinē in seruitute reducere , non magis quam liberum tenementum potest servum in libertatem , &c. by whose words it appeareth , that soca is nothing else , but the meeting or assembly of these kinde of tenents in any place within the maner or libertie : wherefore he that hath soc may seeme to haue such a maner , such tenents , and such a libertie belonging to his maner and tenents , as is here described . here you see diuersities of opinions touching this word , one saying that it is a power or libertie to seeke after theeues & stollen goods within a maner or fee , and to doe iustice vpon such inquisition . others that it is a libertie onely to haue suiters to his court . other ( as fleta , that it conteineth both the former significations , and furder that it is taken for the company of tenents which liue within such a liberty ; and are exempled from those common seruices of the prince and country wherunto subiects are ordinarily tied . this kinde of liberty is in diuers places at this day in england , and commonly knowne by the name of soke or soken . see soke and sockmans . soccage ( soccagium ) commeth of the french ( soc. i. vomer , a plowshare or coulter ) . it signifieth in our common lawe a tenure of lands by or for certaine inferiour , or husbandly seruices to be performed to the lord of the fee. see instituts of common lawe . . as i haue shewed in ( chivalrie ) , all seruices due for land , is either knights seruice , or socage . so then , whatsoeuer is not knights seruice , is soceage : bracton in his . booke cap. . num . primo . describeth it thus . dici poterit soccagium à socco , & inde tenentes qui tenent in sockagio , sockmanni dici poterunt , eo quòd deputati sunt , vt videtur , tantummodo ad cultur am , & quorum custodia , & maritagia ad propinquiores parentes iure san guinis pertinebit . et si aliquando inde de facto capiatur homagium , quòd pluries contingit , non tamen habebit propter hoc dominus capitalis custodiam , & maritagium . quia non semper sequitur homagium , licet aliquando sequatur . m. skene de verborum significatione . verb. sockmanria , saith , that sockage is a kinde of holding of lands , when a man is infeoffed freely without any seruice , ward , reliefe , or mariage , and paieth to his lord such dutie , as is called petit sergeantie , or when one holdeth land in the name of burgage , or in libera elemozina , or otherwise in blenche ferme , siue nomine albae firmae , & opponitur militi , qui tenet per seruitium militare . out of the place aboue named in bracton , you may finde a diuision of soccage , wherby it is termed either soccagium liberum , or villanum . frank or free soccage , and base , otherwise called villenage . the former is there thus defined . soccagium liberum est , vbi fit seruitium in denariis dominis capitalibus , & nihil inde omnino datur ad scutum & seruitium regis . where i gather that to be free soccage which paieth a certaine summe of money to the chiefe lord in regard of some tillage , or such like , and not of any sergeantie , or eschuage . and to this effect he writeth also , lib. . cap. . nu . . &c. vnde si tantum in denariis & sine scut agio vel seriantiis , vel si ad duo teneatur sub disiunctione , sc : ad certam rem dandam pro omni seruitio , vel aliquam summam in denariis , id tenementum potest dici soccagium : si autem superaddas scutagium , aut servitium regale , licet ad vnum obulum vel seriantiam , illud poterit dici feudum militare . this free soccage , is also called common socage , anno . h. . cap. . soccage in base tenure , or villanum soccagium , is diuided againe in villanum soccagium , & purum villenagium : villanum soccagium est illud , de quo fit certum seruitium , idque ratione sui tenemēti , non personae suae . purum villenagium est illud , in quo praestatur seruitium incertum , & indeterminatum , vbi sciri non poterit vespere , quale seruitium fieri debet mane . viz. vbi quis facere tenetur quicquid ei praeceptum fuerit . bracton lib. . cap. . num . . the old . nat . br . fol. . maketh three parts of this diuision . viz. soccage of free tenure , soccage of auncient tenure , and soccage of base tenure . soccage of free tenure is ( as the booke saith ) where a man holdeth by free seruice of . pence by yeare , for all maner of seruices , or by other seruices yearely . soccage of auncient tenure is of land of auncient demesn , where no writ originall shall be siewed , but the writ of right , that is called secundum consuetudinem manerii . soccage of base tenure is of those that hould in soccage , and may haue none other writ , but the monstraverunt : and such sockmen hould not by certaine seruice . and for that are they not free sockmen . then againe soccage is diuided into soccage in cheife , and common soccage . soccage in cheife or in capite , is that which holdeth of the king , as of his crowne . praerog . fol. . common soccage is that , which holdeth of any other capitall lord , or of the king by reason of some honour or maner . ibidem . burgage is also a kinde of soccage , see burgage . sockmans ( sockmanni ) are such tenents as hould their lands , and tenements by soccage tenure . and accordingly as you haue . kinds of soccage , soe be there . sorts of sockmans . as sockmans of frank tenure . kitchin , fol. . sockmans of anncient demesn . ould nat . br . fol. . and sockmans of base tenure . kitchin vbi supra . but the tenents in auncient demesn , seeme most properly to be called sockmans , fitzh . na . br . f. . b. brit. c. . n. . soke , anno . h. . cap. . & cap. . of this fleta saith thus soke significat libertatem curiae tenentium . quam socam appellamus . lib. . cap. . § . soke . see roger houeden , parte poster . suorum annalium . fol. . b. and see soc. soken ( soca ) see soc. and hamsoken . soken is latined soca register originall , fol. . a. sokereue seemeth to be the lords rent . gatherer in the soke , or soken , fleta , lib. . cap. . in principio . sole tenent ( solus tenens ) is he or shee which holdeth onely in his or her owne right without any other ioyned . for example , if a man and his wife hould land for their liues , the remainder to their son : here the man dying , the lord shall not haue heriot , because he dieth not sole tenent . kitchin , fol. . solicitour ( solicitator ) commeth of the french ( soliciteur ) it signifieth in our commō law , a man imploied to folow suites depending in law , for the beter remembrance and more case of atturnies , who commonly are so full of clients and busines , that they cannot so often attend the seriants and counsellers as the case may require . solet & debet . see debet & solet . solidata terrae . see farding deale of land sollace , anno . elizabeth . cap. . sommons , aliâs summons ( summonitio ) commeth of the french ( semondre . i. vocare ) it signifieth in our common law , as much as ( vocatio in ius ) or ( citatio ) among the ciuilians . and thence is our word ( somner ) which in french is ( semonneur . i. vocator , monitor ) the custumary of normandie for our ( sommons hath ( semonse ) ca. . summons of the exchequer anno . ed. pri : ca. . & anno . eiusdem , cap. . how summons is diuided , and what circumstances it hath to be obserued . see fleta , lib. . cap. . . solutione feodi militis parlamenti , and solutione feodi burgen . parlamenti , be writs whereby knights of the parlament may recouer their allowance , if it be denyed , anno . h. . ca. . sontage . stow. pag. . is a taske of fourty shillings laid vpon euery knights fee. sorting kerseies . . iacobi : ca : . sothale , is a kinde of intertainment made by bayliffes to those of their hundreds for their gaine . which sometime is called filctale . of this bracton lib. . tracta : . cap. pri . hath these words : de balliuis , quifaciunt ceruisias suas . quas quandoque vocant ( sothale ) quandoque ( filctale ) vt pecunias extorque ant ab eis qui sequntur hundreda sua , & baliuas sitas , &c. i thinke this should rather be written scotale . see scotale . southvicont ( subvicecomes ) is the vnder shyreeue . cromptone iurisdict : fol : . sowne , is a verb neuter , properly belonging to the exchequer , as a word of their art , signifiing so much , as to be leuiable , or possible to be gathered or collected . for example , estreats that sowne not , are such as the shyreeue by his industry cannot get , and estreats that sowne , are such as he can gather , anno . h. . ca. . speaker of the parlament , is an officer in that high court , that is as it were the common mouth of the rest : and as that honourable assembly consisteth of two houses , one called the higher or vpper house , consisting of the king , the nobility , and kings councell , especially appointed for the same , the other termed the lower or commonhouse , containing the knights of the shires , the citizens , barons of the cinque ports , and the burgeses of borough townes : so be there also two speakers , one termed the lord speaker of the higher house , who is most commonly the lord chaunceler of england , or lord keeper of the great seale : the other is called the speaker of the lower house . and the duties of these two you haue perticularly described in m. vowels , aliâs hookers booke , intituled the order and vsage of keeping the parlament . speciall mater in euidence . see generall issue . and brooke . titulo generall issue , and speciall euidence . spiritualties of a bishop ( spiritualia episcopi ) be those profits which he receiueth , as he is a bishop , and not as he is a baron of the parlament . stawnf . pl. cor . fol. . the particulars of these may be the duties of his visitation , his benefite growing from ordering and instituting priests , prestation money , that subsidium charitatiuum , which vppon reasonable cause he may require of his clergie . iohannes gregorius de beneficiis . cap. . num . . and the benefite of his iurisdiction . ioachimus stephanus de iurisd . lib. . cap. . num . . for these reckoneth exactionem cathedratici , quartam decimarum , & mortuariorum , & oblationum pensitationem , subsidium charitatiuum , celebrationem synodi , collationem viatici vel commeatus , cùm episcopus romam proficiscitur , ius hospitii , litaniam & processionem . spikenard ( spica nardi , vel nardus ) is a medicinall herbe , whereof you may for your farder instruction reade gerards herball . lib. . cap. . the fruite or eare of this ( for it bringeth forth an eare like lauender ) is a drugge garbleable , anno . iacob . cap. . spoliation ( spoliatio ) is a writ , that lyeth for an incumbent , against another incumbent , in case where the right of patronage commeth not in debate . as if a parson bee made a bishop , and hath dispensation to keepe his rectorie , and afterward the patron present another to the church , which is instituted and inducted : the bishop shall haue against this incumbent a writ of spoliation in court christian . fitz. nat . br . fol. . see beneuolence . squalley . anno . elizab. cap. . squyers . see esquires . stablestand , is one of the foure euidences , or presumptians whereby a man is convinced to intend the stealing of the kings deere in the forest . manwood . parte of his forest lawes . cap. . num . . the other three be these dogdrawe , backbeare , bloudie-hand . and this stablestand , is when a man is found at his standing in the forest , with a crosse bowe bent , ready to shoote at any deere , or with a long bowe , or else standing close by a tree with greyhounds in a lease , ready to slippe , idem , eodem . stalkers , a kind of net anno r. . stat . . cap. . & anno . eiusdem , cap. . stallage ( stallagium ) commeth of the french ( estaller . i. merces exponere , expedire , explicare . ) it signifieth in our common law , money payed for pitching of stalles in faire or market . see scavage . this in scotland is called stallange . skene de verbor . signif . verbo stallangiatores . and among the romaines it was termed ( siliquaticum ) à siliqua , primo & minimo omnium pondere apud illam nationem . stannaries ( stannaria ) commeth of the latine ( stannum . ) i. tynne , signifying the mines and workes touching the getting , and purifying of this mettall in cornewall , and other places . of this read camden . britan. pa. . the liberties of the stannarie men graunted by ed. . before they were abridged by the statute , anno . ed. . see in plowden . casu mines . fol. . a. b. staple ( stapulum ) signifieth this or that towne , or citie , whether the merchants of england by common order , or commandement , did carie their wolles , wol-fels , cloathes , lead , and tinne , and such like commodities of our land for the vtterance of them by the great . the word may probably be interpreted two wayes : one taking it from ( staple ) which in the saxon or old english language , signifieth the stay or hold of any thing . lamb. in his duties of constables . num . . because the place is certaine , and setled : and againe , from the french ( estape . i. forum vinarium ) because to those places , whether our english merchants brought their commodities , the french would also meete them with theirs , which most of all consisteth in wines : but i thinke this latter the truer because i finde in the mirrour of the world written in french these words . a calais . 〈◊〉 auoit estape de le laine , &c. which is as much to say , as the staple for wols , &c. you may read of many places appointed for this staple in the statutes of the land , according as the prince by his councell thought good to alter them , from the second yeare of ed : . cap. . to the fifth of edw : the sixth . cap : . what officers the staples had belonging to them you may see anno . ed. . stat . . ca. . starre chamber ( camera stellata ) is a chamber at westminster so called ( as sir tho. smith coniectureth lib. . cap. . ) either because it is full of windowes , or because at the first all the roofe thereof was decked with images of guilded starres . and the later reason i take to be the trewer , because anno . h. . ca. . it is written the sterred chamber . in this chamber euery weeke twice during the terme , and the very next day after terme , is there a court held by the lord chaunceler or keeper , and other honourable personages of the realme . this court seemeth to haue taken beginning from the statute anno . h : . ca. pri . whereby it is ordained , that the lord chaunceler and treasurer of england for the time being , and the keeper of the kings priuy seale , or two of them , calling to them a bishop , and a temporall lord of the kings most honourable councell , and the two cheife iustices of the kings bench , and common place , for the time being , or other two iustices in their absence , should haue power to call before them , and punish such misdoers , as there be mentioned . the faults that they punish , be routes , riots , forgeries , maintenances , embraceries , periurics , and such other misdemeanures as are not sufficiently prouided for by the common law . it appeareth both by sir. tho : smith lib. . de rep : anglo : cap. . and by experience also , that at this day , the whole number of the princes most honourable priuy councell , and such other barons spirituall , or temporall as be called thither by the prince , haue place in this court with those aboue named . of this court thus speaketh m. gwin in the preface to his readings : it appeareth in our bookes of the termes of k. edward . and of the report of cases hapning vnder the vsurpation of richard the third that sometime the king and his councell , and sometime the lord chaunceler , and other great personages , did vse to sit iudicially in the place then and yet called the starre chamber . but for as much as be like that assembly was not ordinary , therefore the next kings , henry the seuenth , and his some . h. . tooke order by two seuerall lawes . viz. . h. . ca. pri . & . h. . ca. . that the chaunceler assisted with others there named , should haue power to heare complaints against retainours , embraceours , misdemenures of officers , and such other offences , which through the power and countenance of such as do commit them , do lift vp the head aboue other faults : and for the which inferiour iudges are not so meete to giue correction . and because that place was before dedicated to the like seruice , it hath bene euer since also accordingly vsed . touching the officers belonging to this court , see camden . pag. . & . statute , ( statutum ) hath diuers significations in our common lawe . first , it signifieth a decree or act of parlament , made by the prince and three estates , which is the bodie of the whole realme . and though it borow the name from that kind of decree , which those cities , that were vnder the romaine empire , made for the particular gouernment of themselues , ouer and aboue the vniuersall or common lawe of the empire : yet in nature it commeth nearest to that which the romaines called ( legem ) for that , as that was made by the whole people noble and ignoble : so this is ordeined by those , that represent the whole number , both of prince , and subiects , one and other , through the whole kingdome . the difference neuerthelesse was this , that lex was offered to the consideration of the people by the magistrate of the senate , or consull : but the bils or suggestions whence our statutes spring , are offered by any of either house , and so either passed or reiected . in this signification a statute is either generall or speciall . coke lib. . hollands case , fol. . a. statute , in another signification is a short speach taken for a bond ; as statute marchant , or statute staple . anno . h. . cap. . the reason of which name is , because these bonds are made according to the forme of statuts expressely , and particularly prouided for the same ; which direct both before what persons , and in what maner they ought to be made . west . parte pri . symbol . li. . sect . . where he defineth a statute merchant thus . a statute merchant is a bond acknowledged before one of the clerks of the statutes merchant , and maior or chiefe warden of the citie of london , or two merchants of the said citie for that purpose assigned , or before the maior , cheife warden , or master of other cities or good townes , or other sufficient men for that purpose appointed , sealed with the seale of the depter , and of the king , which is of two peeces , the greater is keept by the saide maior , cheife warden , &c. and the lesser peece thereof by the saide clerks . the form of which bond , you may see in fleta . lib. . c. . § . . to be such ; noverint vniuersi me . n. de tali comitatu teneri . n. in . marcis soluendis eidem ad festum pent. anno regni regis , &c. & nisi fecero , concedo quod currant super me & haeredes meos districtio , & poena provisa in statuto domini regis edito apud westm . datum london , tali die , an . supra dicta . the fee for the same seale , is for statutes knowledged in faires . for euery pound an halfepeuy , and out of faires a farding . the execution vpon statute merchant , is first to take the bodie of the deptor , if he be lay , and can be found : if otherwise , then vpon his lands , and goods : the bound is founded vpon the statute , anno . ed. pri . statut . . of this also as of the statute staple , see the newe booke of entries . verbo . statut merchant . and reade in fleta vbi supra , more touching this mater worth the reading . satute staple ( to vse the very words of m. west . ) is either properly so called , or improperly , a statute staple properly so called is a bond of record knowledged before the maior of the staple , in the presence of one of the two constables of the same staple , for which seale the fee is of euery pound , if the summe exceed not a . poūd , an halfepeny , & if it exceed and . poūd , of euery pound a farding . and by vertue of such statute staple , the creditor may forthwith haue execution of the body , lands & goods of the depter . and this is founded vpon the statute anno . ed. . cap. . a statute staple improper , is a bond of record , founded vpon the statute anno . h. . cap . of the nature of a proper statute staple , as touching the force , and execution thereof , and knowledged before one of the chiefe iustices , and in their absence before the maior of the staple , and recorder of london . the formes of all these bonds , or statutes , see in west . parte pri . simbol . li. . sect . . . . . statutes is also vsed in our vulgar talke , for the petit sessions , which are yearely kept for the disposing of seruants in seruice , by the statute , anno . eliz. cap. . see recognisance . statute sessions , otherwise called petit sessions , are a meeting in euery hundred of all the shires in england , where of custome they haue beene vsed , vnto the which the constables doe repaire , and others both housholders and seruants , for the debating of differences between masters and their seruants , the rating of seruants wages , and the bestowing of such people in seruice , as being fit to serue , either refuse to seeke , or cannot get masters , anno . eliz. cap. . statuto stapulae , is a writ that lieth to take his body to prison , and to seise vpon his lands and goods , that hath forfeited a bond , called statut staple . register orig . fol. ● . a. statutum de laboriis , is a writ iudiciall for the apprehending of such laborers , as refuse to worke according to the statut . register iudicial l. fol. . b. statuto mercatorio , is a writ for the imprisoning of him , that hath forfeited a bond called the statut merchant , vntill the dept be satisfied . register orig . fol. . b. and of these there is one against lay persons , vbi supra . and another against ecclesiasticall . . stavisaker , staphis agria , vel herba pedicularis , is a medicinable herb , the kinde and vertues whereof , you haue set forth in gerards herball , lib. . cap. . the seede of this is mentioned among drugs to be garbled , anno prim . iacob . cap. . stennerie , is vsed for the same that stannaries be , in the statute anno . h. . cap. . see stannaries . sterling ( sterlingum ) is a proper epitheton for money current within the realme . the name groweth from this , that there was a certain pure coyne , stamped first of all by the easterlings here in england . stowes annalls . pag. . the which i rather beleeue , because in certaine old monuments of our english , and broken french , i finde it written esterling . so ro. hoveden writeth it . parte poster . annalium . fol. . b. m. skene de verborum signif . verbo . sterlingus , saith thus : sterling is a kinde of weight conteining . cornes , or graines of wheat . and in the canon law mention is made of fiue shillings sterling , and of a merke starling . cap. . de arbitris . & . c. constituit . . de procurator : and the sterling peny is soe called , because it waighes so many graines , as i haue sundry times proued by experience . and by the law of england the peny which is called the sterling round and without clipping wayeth . graines of wheat without tailes , whereof . make an ounce , and . onnces a pound , and eight pound maketh a gallon of wine , and eight gallons make a bushell of london , which is the eight part : of a quarter . hitherto m. skene . buchanan . lib. . saith , that the common people thinke it so termed , of sterling a towne in scotland . our lyndwood saith that it is called sterling of the bird which we call a sterling which as he noteth , was ingrauen in one quarter of the coine so termed . cap. item quia . de testamentis . verbo . centum solidos . in glos . stewes , are those places , which were permitted in england to women of professed incontinencie , for the profer of their bodies to all commers : it is deriued from the french ( estuves . i. thermae , vaporarium , balneum ) because wantons are wont to prepare themselues , to these venerous acts , by bathing themselues . and that this is not , newe , homer sheweth in the . booke of his odiss . where he reckoneth hot bathes among the effeminate sort of pleasures , of these stewes see the statute anno . henric. . cap. pri . steward . see seneschall and stuward , steward of the kings house anno . ed. . statute . . ca. . stillyard ( guilda theutonicorum anno . h. . ca. . & anno . eiusdem ca. . ) is a place in london , where the fraternity of the easterling merchants , otherwise the merchants of hawnse and almaine . anno pri : ed. . cap. . are wont to haue their aboade . see geld. it is so called of a broad place , or courte , wherein steele was much sould . vpon the which that house is now founded . nathan chitraens . see hawnse . stone of woll . ( petra lanae ) see weights . see sarpler . it ought to weigh fourteene pounds , yet in some places by custome it is more . see cromptons iustice of peace . fol. . b. straife alias stray . see estrae . straites anno . h. . ca. . streme workes , is a kinde of worke in the stannaries : for ( saith m. camden titulo cornwall pag. . ) horum stannariorum siue metallicorum operum duo sunt genera : alterum lode-works , alterum streme-works vocant . hoc in locis inferioribus est cùm fossis agendis stanni venas sectantur & fluuiorum alueos subinde deflectunt : illud in locis aeditioribus , cùm in montibus puteos , quos shafts vocant in magnam altitudinem defodiunt , & cuniculos agunt . these you may read mentioned anno . h. . ca. . stirks . strip . see estreapement . stuard , alias steward ( senescallus ) seemeth to be compounded of steede and ward , and is a word of many applications : yet alway signifieth an officer of cheife accoumpte within the place of his sway . the greatest of these is the lord high steward of england , whose power ( if those antiquities be true which i haue read ) is next to the kings , and of that heighth , that it might in some sort match the ephori amongst the lacedemonians . the custome of our commonwealth hath vppon great consideration and policie brought it to passe , that this high officer is not appointed for any long time , but onely for the dispatch of some especiall businesse , at the arraignment of some noble man in the case of treason , or such like : which once ended , his commission expireth . of the high steward of englands court , you may reade cromptons iurisdiction . fol. . i haue reade in an auncient manuscript of what credit , i know not , that this officer was of so great power in auncient times , that if any one had sought iustice in the kings court and not found it , he might vpon complaint thereof made vnto him , take those petitions , and reseruing them to the next parlament , cause them there to bee propounded , and not onely so , but also in the presence of the king openly to rebuke the chaunceler , or any other iudge , or officer whom he found defectiue in yeelding iustice . and if in case the iudge , or officer so reprehended , did alledge , that his defect grew from the difficultie of the case , insomuch as he durst not aduenture vpon it : then the case being shewed , and so found , the lord steward together with the constable of england there in the presence of the king and parlament , might elect . persons , or more , or fewer , according to their discretion , and the case or cases in question , some earles , some barons , some knights , some citizens and burgesses , which vpon deliberation should set downe , what they thought iust and equal : and their decree being read and allowed by parlament , did stand as a law for euer : fardermore , if the chaunceler or other iudge or officer , could not well approue , that the delay of iustice complained of , grew from iust difficultie , by reason that the case in question was formerly determined by lawe or statute : then might the steward on the kings behalfe , admonish him of his negligence , and will him to be more carefull and studious . or if there appeared malice , or corruption , then the king and parlament was wont to remoue him and assigne another of better hope to the place . lastly , if the king had about him any such euill counceller , as aduised him to things vniust , or vnanswerable to his maiestie , as tending either to the disherifon of the crowne , publike hurt , or destruction of the subiect . the office of the steward was , taking to him the constable , and other great men , with some of the commons , and giuing notice to the king of their intention , to send to that counseler , and will him to desist from misleading the king , yea , if need so required , to charge him to stay no longer about him , but to depart from the court , which if he neglected to performe , then they might send to the king , and will him to remoue him : and if the king refused , then they might take him as a publike enemie to the king and realme , seise on his goods and possessions , and commit his body to safe custody , vntill the next parlament , there to be iudged by the whole kingdome : examples are brought of godwin earle of kent in the time of king edward next before the conquerour , of hubert burgh earle of the same county , in the reigne of henry the third , and of peter gaueston , in edward the seconds daies . but experience ( as i said ) hath found this officer more daungerous then profitable , and therefore hath time taught , though not wholly to suppresse him , yet to limite him to particular occasion , and to restraine his power . then is there the steward of the kings most honourable houshould , anno . h. . cap. . whose name is changed to the name of great master . anno . eiusdem , cap. but this statute was repealed by anno prim . mar. . parlam . cap. and the office of the lord steward of the kings houshold reuiued : where you may at large reade diuers things touching his office . as also in fitzh . nat . br . fol. . b. of this officers auncient power , reade fleta , lib. . cap. . there is also a steward of the marshalsea . pl. cor . fol. . & anno . h. . cap. . to be short , this word is of so great diuersitie , that there is not a corporation of any accompt , or house of any honour , almost through the realme , but it hath an officer toward it of this name . a steward of a maner , or of a houshold , what he is or ought to be , fleta fully describeth . lib. . cap. . & . straunger , commeth of the french ( estranger . i. alienare . ) it signifieth in our language generally a man borne out of the land or vnknowne : but in the lawe , it hath an especiall signification for him that is not priuie or a party to an act : as a straunger to a iudgement : oldna . br . fol. . is he to whome a iudgement doth not belong . and in this signification it is directly contrarie to ( partie ) or ( priuie . ) see priuie . submarshall , ( submarescallus ) is an officer in the marshal sea , that is , deputie to the chiefe marshall of the kings house , commonly called the knight marshall , and hath the custody of the prisoners there . cromptons iurisdict . fol. . he is otherwise called vnder-marshall . subpoena , is a writ that lyeth to call a man into the chauncerie , vpon such case onely , as the common lawe faileth in , and hath not prouided for : so as the partie who in equitie hath wrong , can haue none ordinary remedie , by the rules and course of the common lawe , west . part . . symbol . titulo proceedings in chauncerie . sect . . where you may reade many examples of such cases , as sub poena lyeth in . there is also a sub poena ad testificandum , which lyeth for the calling in of witnesses to testifie in a cause , as well in chauncerie , as in orher courts . and the name of both these proceede from words in the writ , which charge the partie called to appeare at the day and place assigned , sub poena centum librarum , &c. i find mention of a common sub poena in cromptons iurisdict . fol. . which signifieth nothing else but such a sub poena , as euery common person is called by into the chauncerie : whereas any lord of parlament is called by the lord chauncelers leters : giuing him notice of the suit intended against him , and requiring him to appeare . crompton . eodem . subsidie , ( subsidium ) commeth of the french ( subside ) signifying a taxe or tribute assessed by parlament , and graunted by the commons to be leuied of euery subiect , according to the value of his lands or goods after the rate of . shillings in the pound for land , and . shillings . pence for goods , as it is most commonly vsed at this day . some hold opinion , that this subsidie is graunted by the subiect to the prince , in recompence or consideration , that whereas the prince of his absolute power , might make lawes of himselfe , he doth of fauour admit the consent of his subiects therein , that all things in their owne confession may be done with the greater indifferencie . the maner of assessing euery mans lands or goods , is this : first , there issueth a commission out of the chauncerie to some men of honour or worship in euery countie , by vertue thereof to call vnto them , the head constables or bayliffes of euery hundred , and by them the constable and three or foure of the substantiallest housholders in euery towne within their hundred at a day certaine : which men so called , or so many of them , as the commissioners thinke good to vse , do rate the inhabitants of their owne towne , in such reasonable maner , as they find meete , yet by the discretion of the said commissioners . and then euery man after his value set downe , must at his time pay to the collectour appointed , after the rate aforesaid . yet in auncient time , these subsidies seeme to haue beene graunted both for other causes , as in respect of the kings great trauell , and expences in warres : or his great fauours toward his subiects : as also in other maner then now they be : as euery ninth lambe , euery ninth fleece , and euery ninth sheafe . anno . ed. . stat . prins . cap. . and of these you may see great , varietie in rastals abridgement . tit . taxes , tenths , fifteenths , subsidies , &c. whence you may gather that there is no certaine rate , but euen as the two houses shall thinke good to conclude . subsidie is in the statute of the land , fometime confounded with custome . anno . h. . cap. . see beneuolence . suretie of peace , ( securitas pacis ) is an acknowledging of a bond to the prince , taken by a competent iudge of record , for the keeping of the peace . lamberds eirenarcha , li. . cap. . pag. . this peace may a iustice of peace commaund , either as a minister , when he is willed so to doe by a higher authoritie , or as a iudge , when he doth it of his owne power deriued from his commission . of both these see lamberd . eirenarcha . lib. . ca. . pag. . see peace , see supplicauit . suffragan ( suffraganeus ) is a titular bishop ordeined , and assisted to aide the bishop of the dioces in his spirituall function . c. suffraganeus . extra de electione . for the etimology , suffraganes dicuntur , quia eorum suffragiis causae ecclesiasticae iudicantur . ioach. stephanus de iurisd . li. . ca. . nu . . it was inacted anno . h. . ca. . that it should be lawfull to every diocesan at his pleasure to elect two sufficient men within his dioces , and to present them to the king , that he might giue the one of them such title , stile , name , and dignity of sease in the saide statut specified , as he should think conuenient . suyte ( secta ) commeth of the french ( suite . i. affectatio , consecutio , sequela , comitatus ) it signifieth in our common law , a following of another , but in diuers senses , the first is a suite in lawe , and is diuided into suite reall , and personall . kitchin , fol. . which is all one with action reall and personal . then is there suite of court , or suite seruice ; that is an attendance which a tenent oweth at the court of his lord. fitzh . nat . br . in indice . verbo suite . suyte seruice and suyte reall , anno . h. . cap. . the newe expositour of lawe termes , maketh mention of foure sorts of suites in this signification . suite couenant , suite custom , suite reall , and suite seruice . suite couenant , he defineth to be , when your auncester hath couenanted with mine auncester , to siew to the court of mine auncesters . suite custome , when i and mine auncesters haue beene seised of your owne , and your auncesters suite , time out of minde , &c. suite reall , when men come to the shyreeues turne , or leete , to which court all men are cōpelled to come , to knowe the lawes , so that they may not be ignorant of things declared there , how they ought to be gouerned . and it is called reall , because of their allegance . and this appeareth by common exeperience , when one is sworne : his oath is that he shall be a loyall and faithfull man to the king. and this suite is not for the land that he holdeth within the countie but by reason of his person and his aboade there , and ought to be done twice a yeare : for default whereof he shall be amerced and not distreined . i thinke this should be called rather regall or royall , because it is performed to the king for ( royall ) . the french word in the vsuall pronuntiation commeth neere to reall , the leter ( o ) being almost suppressed . see leete . suyte seruice , is to siew to the shyreeues turn or leete , or to the lords court from three weekes to three weekes by the whole yeare . and for default thereof a man shall be distreined , and not amercied . and this suite seruice is by reason of the tenure of a mans land . then doth suite signifie the following of one in chace , as fresh suite . west . . c. . a. . ed. . lastly , it signifieth a petition made to the prince , or great personage . suyte of the kings peace ( secta pacis regis ) anno . r. . stat . . ca. pri . & anno . eiusdem , cap. . & anno . h. . cap. . is the persiewing of a man for breach of the k. peace , by treasons , insurrectiōs , rebelliōs , or trespasses . summoneas , is a writ iudiciall of great diuersitie , according to the diuers cases wherein it is vsed , which see in the table of the register iudiciall . summoner ( summonitor ) signifieth one vsed to call or cite a man to any court . these by the common lawe , ought to be boni , that is by fleta his iudgement , liberi homines , & ideo boni , quia terras tenentes , quod sint coram talibus iusticiariis ad ce ●tos diem , & locum secundum mandatum iusticiariorum vicecomiti directum , parati inde facere recognitionemilib . . cap. . § . etcum . summons ( summonitio ) see sommons , common summons . marlb . cap. . anno . . henric. . is l. summons in terra petita kitch . fol. . is that summons which is made vpon the land , which the party at whose suite the summons is sent forth , seeketh to haue , summons ad warrantizandum . dyer fol. . nn . . sumage ( sumagium ) seemeth to be tolle for cariage on horseback , crompton iurisd . fol. . forwhere the charter of the forest , cap. . hath these words : for a horse that beareth loades euery halfe yeare , a halfe penny : the booke called pupilla ocult , vseth these wordes : pro vno equo portante summagium , per dimidium annum obolum . it is otherwise called a seame . and a seame in the westerne parts is a horse loade . superoneratione pasturae , is a writ iudiciall that lyeth against him who is impleaded in the county for the overburdening of a common with his catell , in case where he is formerly impleaded for it in the countie , and the cause is remooued into the kings court at westm . supersedeas , is a writ which lieth in diuers , and sundry cafes , as appeareth by the table of the register originall , and the iudiciall also , and by fitzh . nat . br . fol. . and many other places noted in the index of his booke verbo . supersedeas . but it signifieth in them all a command , or request to stay or forbeare the doing of that , which in apparence of law were to be done , were it not for the cause , wherevpon the writ is graunted . for example : a man regularly is to haue surety of peace against him , of whome he will sweare that he is afraide , and the iustice required herevnto cannot denie him . yet if the party be formerly bound to the peace , either in chauncerie , or else where : this writ lyeth to stay the iustice from doing that , which otherwise he might not denie . superstatutum , ed. . vers servants and labourers , is a writ that lyeth against him , who keepeth my seruant departed out of my seruice against lawe . fitzh . nat . fo . . super statuto de york quo nul sera viteller , &c. is a writ lying against him , that occupieth vitteling either in grosse or by retaile in a citie , or borough towne , during the time he is maior , &c. fitzh . natur . bre . fol. . super statuto , anno pri . ed. . cap. & . is a writ that lyeth against the kings tenent holding in cheife , which alienateth the kings land witout the kings license . fitzh : nat . br . fol. . super statuto facto pour seneshall & marshall de roy , &c. is a writ lying against the steward , or marshall for holding plee in his court of freehould , ot for trespasse , or contracts not made within the kings houshold . fitzherbert nat . breu . fol. . super statuto de articulis cleri , cap. : is a writ against the shyteeue , or other officer , that distreineth in the kings high way , or in the glebe land aunciently giuen to rectories . fitzh . nat . br . fol. . super praerogatiuae regis , cap. . is a writ lying against the kings widow for marying without his licence . fitzherbert . nat . br . fol , . supplicauit , is a writ issuing out the chauncerie for taking the surety of peace against a man. it is directed to the iustices of peace of the county , and the shyreeue : and is grounded vpon the statute , anno pri . ed. . cap. . which ordeineth that certaine persons in chauncerie shall be assigned to take care of the peace , see fitzh . nat . br . fol. . this writ was of old called breve de minis , as m. lamberd in his emenarcha . noteth out of the register originall , fol. . sur cui in vita , is a writ that lyeth fot the heire of that woman , whose husband hauing alienated her land in fee , shee bringeth not the writ cui in vita for the recouery of her owne land for in this case her heire may take this writ against the tenent after her decease . fitzh . nat . br . fol. . b. surgeon , commeth of the french ( chirurgien . i. chirurgus , vulnerarius ) signifiing him that dealeth in the mechanicall parte of phisicke , and the outward cures performed with the hand . the french word is compounded of two greeke words ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. manus ) and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. opus ) and therefore are they not alowed to minister inward medicine . see the statut . . h. . ca. . and m. powltons new abridgement titule surgeons . surcharger of the forest , is he that doeth common with more beasts in the forest , then he hath right to common withall . manwood , parte . of his forest lawes . cap. . nu . . surplusage ( surplusagium ) commeth of the french ( surplus . i. corollarium , additamentum ) it signifieth in the common law , a superfluity or addition more then needeth , which sometime is a cause that a writ abateth . brooke , titulo . nugation & superfluity , fol. . plowden casu dine , contra maningham , fol. . b. it is sometime also applied to mater of accoumpt , and signifieth a greater disbursement , then the charge of the accoumptant amounteth vnto . surreioynder , is thus defined by west . parte . symb . titulo . supplications . sect . . a surreioynder , is a second defence of the plaintifes actiō , opposite to the defendants reioynder . and therefore ( as he saith ) hotoman call eth it triplicationem , quaeest secunda actoris defensio , contra rei duplicationem opposita . not hotoman onely calleth this triplicationem : but the emperour himselfe . de replicationibus , libro . . institut : titulo . . surrender ( sur sum redditio ) is an instrument testifiing with apt words , that the particular tenent of lands , or tenements for life or yeares , doth sufficiently consent and agree , that he which hath the next or immediate remainder , or reuetsion thereof shall also haue the particular estate of the same in possession : and that he yeeldeth , and giueth vp the same vnto him . for euery surrender ought forthwith to giue a possession of the things surrendred . west : parte pri : lib. . sectio . . where you may see diuers presidents . but there may be a surrender without writing . and therefore there is said to be a surrender in deede , and a surrender in law . a surrender in deede , is that which is really and sensibly performed . surrender in law is in intendment of law by way of consequent , and not acutall . perkins surrender . . & seqq . as if a man haue a lease of a serm , & during the terme he accept of a new lease , this act is in law a surrender of the former . coke . vol. . fo . . b. sursise ( supersisae ) anno . h. . ca. . seemeth to be an especiall name vsed in the castle of douer , for such penalties , and forfeitures , as are laid vpon those that pay not their duties or rent for castle ward at their daies . a. . h. . ca. . bract. hathit in a generall signification lib. . tract . . ca. . nu . . and fleta lib. . ca. . in prin . surueiour ( superuisor ) is compounded of two french words ( sur . . super ) and veoir . . ce●ert intueri , despioere , prospicere , videre ) it signifieth in qur common law , one that hath the ouerseeing or care of some great personages lands , or works . as the surueiour generall of the kings maners . cromptons iurisd . fo . . and in this signification it is taken anno . h. . cap. . where there is a court of surueiours erected . and the surueiour of the wards and liueries west parte . simbologr : titulo chauncery , sect : . which officer is erected anno . h. . ca. . who is the second officer by his place in the court of wards and liueries , assigned and appointed by the king . his office seemeth especially to consist in the true examination of the lands belonging to the kings wards , that the king be not deceiued . at the entrance into his office , he taketh an oath ministred vnto him by the maister of that court , which see an . . h. . cap. . surueiour of the kings exchange , anno . h. . stat . . ca. . was an officer , whose name seemeth in these daies to be changed into some other . for i cannot learne that there is any such now . suruiuour , is compounded of two french words ( sur. . super ) and viure . . aetatem agere , viuere ) whence also commeth the compound ( suruiure . i. superesse ) it signifieth in our common law , the longer liuer of two ioynt tenents . see brooke , titulo ioynt tenents , fol. . or of any two ioyned in the right of any thing . suspension ( suspensio ) is vsed for a temporall stop of a mans right , and differeth from extinguishment in this , that a right of estate suspended reuiueth againe , but extinguished it dyeth for euer . brooke , titulo extinguishment and suspension . fol. . suspension is also vsed in our common lawe , sometimes as it is vsed in the canon lawe , pro minori excommunicatione . as anno . h. . cap. . see excommunication . suspirall , seemeth to be a spring of water passing vnder the ground , toward a conduit or cesterne . anno . h. . ca. . and to be deriued from the latine ( suspirare ) or the french ( souspirer ) i. ducere suspiria . and indeed the word it self is french for ( souspiral ) in that tongue , signifieth ( spiramentum cauernae ) the mouth of a caue or den : or the tunnell of a chimney . swainmot , alias swanimote , ( swainmotum ) signifieth a court touching maters of the forest kept by the charter of the forest , thrice in the yeare : anno henr. octau cap. . it is called a swannie-mote : what things be inquirable in the fame , you may reade in cromptons iurisd . fol. . who saith that this court of swainemote is as incident to a forest , as the court of piepowder is to a faire , with whome agreeth m. manwood parte pri . of his forest lawes , pag. . the word seemeth to be compounded of ( swain ) and ( mot ) or ( gemot ) . for swaine , as m. manwood saith vbi supra , pag. ) in the saxons tongue signifieth a bockland man , which at this day is taken for a charterer , or freeholder : and ( gemot ) as m. lamberd saith in his explication of saxon words , verbo conventus , is conventus , wherevpon it is to be noted , as he saith in the same place , that the swainemote is a court of free-holders within the forest . of the which you may reade him at large , pag. . &c. vsque . t tabling of fines , is the making of a table for euery countie , where his maiesties writ runneth , conteining the contents of euery fine , that shall passe in any one terme , as the name of the countie , townes , and places , wherein the lands or tenements mentioned in any fine , do lye , the name of the plaintiffe and deforceant , and of euery maner named in the fine . this is to be done properly by the chirographer of fines of the common plees : who the first day of the next terme after the engressing of any such fine , shall fixe euery of the said tables in some open place of the court of common plees : and so euery day of the said terme during the sitting of the said court . and the said chirographer shall de●iuer to the shyreeue of euery countie , his vndershyreeue or deputie , faire writen in parchment , a perfect content of the table so to be made for that shire , in the terme that shall be next before the assises to be holden in the same countie , or else in the meane time betweene the terme , and the said assises , to be set vp the first day , and euery day of the next assises , in some open place , of the court , where the iustices of assises then shall sit , to continue there so long , as they shall sit in the said court . if either the chirographer , or shyreeue faile herein , he forfeiteth fiue pounds . and the chirographers fee for euery such table is foure pence . anno . elizab. cap. . this saith , west . parte . symbol . titulo . fines , sect . . taile ( tallium ) commeth of the french ( taile . i. sectura ) or the verb ( tailler . i. scindere ) signifiing in our common law two seuerall things , both grounded vpon one reason . plowden , casu willi●n , fol. . a. b. first it is vsed for the fee , which is opposite to fee simple : by reason that it is so ( as it were ) minced , or pared , that it is not in his free power to be disposed of him which owneth it : but is by the first giuer cut , or diuided from all other , and tyed to the issue of the donee , cooke lib. . in prooemio . and this limitation , or taile , is either generall , or speciall . taile generall is that , whereby lands , or tenements are limited to a man , and to the heires of his body begotten . and the reason of this terme is , because how many soeuer women , the tenent houlding by this title , shall take to his wiues , one after another in lawfull matrimony ; his issue by them all , haue a possibility to inherit , one after the other . taile speciall is that , whereby lands , or tenements be limited vnto a man and his wife , and the heires of their two bodies begotten : because if the man bury his wife before issue , and take another : the issue by this second wife cannot inherit the land , &c. also if land should be giuen to a man and his wife , and to their sonne and heire iohn , for euer : this is taile especiall . see more of this in see , and litleton lib. pri : ca. . and the new booke of entries . verbo taile . taile in the other signification , is that which we vulgarly call a tallie . for it is vne taille de bois a clouen peece of wood to nick vp an accoumpt vpon , for in the statute anno . ed. pri . cap. . and anno . eiusdem , stat . pri . ca. . it is termed a taile , and anno . ed . cap. . and so in brooke his abridgement , titulo . taile d'exchequer fol. . see tayles . tailes ( talliae ) are in these daies called talleyes , well knowne what they be . of these reade in our statutes two sorts , to haue bene vsuall in the exchequer for a long continuance . the one is tearmed tayles of debt , anno . r. . cap. . which are a kind of acquittance for dept paide in to the king . for example , the vniversitie of cambridge payeth yearely ten pounds , for such things as are by their charter graunted them in fee ferme , fiue pounds at the annunciation and fiue at michaelmas . he that payeth the first fiue pounds , receiueth for his discharge a taile or taley , and he that payeth the other fiue , receiueth the like . with both which , or notes of them , he repayreth to the clerke of the pipes office , and there in steede of them receiueth an acquittance in parchment for his whole discharge . then be there also mentioned tayles of reward , anno . h. . cap. . & anno . & . eiusdem . ca. . and anno . & . ed. . ca. . and these seeme to be tailes , or talyes of allowances , or recompence made to shyreeues for such maters , as to their charge they haue performed in their office , or for such monies as they by course haue cast vpon them in their accompts , but could not leauie thē where they were due . and these , as it seemeth by the said statute , anno . h. . cap. . were of old graunted in the exchequer vnto them , vpon warrant made to the treasurer and chamberlaines there , by the clerkes of the signet vpon bill assigned by the king. but sithence the statute anno . & . ed. . cap. . what the course in this case is , i am not so well informed . only i heare , that for some counties these tayles be still in vse , and that the warrant commeth now from the auditour of the receipts , vnto those that make these taleys . and that the shyreeue with them proceedeth to those who take his finall accompt , and there hath his allowance accordingly . taylage ( tallagium ) aliâs , tallage , commeth of the french ( taille ) which originally signifieth a peece cut out of the whole : and metaphorically is vsed for a share of a mans substance payed by way of tribute . it signifieth with vs a tolle , or taxe , as anno pri . ed. . cap. vnico . and stowes annals . pag. . thence commeth tailagiers in chawcer for taxe , or tolle gatherers . taint ( attinctus ) commeth of the french ( teinct . i. infectus , tinctus ) and signifieth either substantiuely a conviction , or adiectiuely a person convicted of felonie or treason , &c. see attaint . tales , is a latine word of knowne signification : it is vsed in our common lawe , for a supply of men empaneled vpon a iury or enquest , and not appearing , or at their apparence , chalenged by the partie , or either partie , if there be two , as not indifferent . for in this case , the iudge vpon petition graunteth a supply to be made by the shyreeue of some men there present , equall in reputation to those that were impaneled . and herevpon the very act of supplying is called a tales de circumstantibus . this supply may be one or more , and of as many as shall either make defaulte , or els be chalenged by each party . stawf . pl. cor . lib. . ca. . how be it , he that hath had one tales , either vpon default or challenge : though he may haue another , yet he may not haue the later to conteine so many as the former , for the first tales must be vnder the principall panell , except in a cause of appeale , and so euery tales lesse then other , vntill the number be made vp of men present in courte , and such as are without exception to the partie , or parties . of this see stawnford more at large vbi supra . where you may finde some exceptions to this generall rule . these commonly called ( tales ) may in some sort , and in deede are called ( meliores ) viz. when the whole iurie is chalenged , as appeareth by brooke , titulo . octo tales & auter tales , fol. . in whome you may likewise reade many cases touching this mater . tales , is the proper name of a booke in the kings bench office . coke lib. . fol. . b. tallage . see taylage . talshide . see talwood . talwood , v. anno . & . henric. octau . capit . . & anno . ed. . ca. . & . el. cap. . talshide . ibidem . it is a long kinde of shide riuen out of the tree , which shortened is made into billets . tartaron , anno . ed. . cap. . & anno . h. . cap. . tasels . anno . ed. . cap. . is a kinde of hard burre vsed by clothiers and cloth workers in the dressing of cloth . task , aliâs tare , by m. camden following the authoritie of doctor powell ( whome he greatly commendeth for his diligence in the search of antiquities ) is a britishe word signifiing tribute . camden . britan. pag. . and it seemeth , it is such a kinde of tribute , as being certainly rated vpon euery towne , was wont to be yearely paide . see gild , and the places there cited out of m. camden . now is it not paide , but by consent giuen in parlament , as the subsidie is . and it differeth from subsidie in this , that it is alway certaine , accordingly as it is set downe in the chequer booke , and levied in generall of euery towne , and not particularly of euerie man. lastly , it is a fifteenth of that substance , that euery town was first rated at , by the number of hides of land in the same . wherevpon it is also called a fifteenth v. anno . ed. . stat . . cap. . for whereas m. crompton in his iurisdictions , saith that it is leuied somtime by goods , as well as by lands , as also appeareth by the statute , anno . h. . ca. . i take his meaning there to be , that though the task in the whole were at the first by the prince proportioned by the land : yet the townes men among themselues to make vp that summe , are at these daies sometime valued by goods . see fiftenth . it seemeth that in auncient times , this task was imposed by the king at his pleasure , but edward the first , anno . of his raigne , bound himselfe , and his successours from that time forward ; not to leuie it but by the consent of the realme . anno . ed. pri . cap. . the word task may be thought to proceede from the french ( taux , aliâs taxe . i. aestimatio , pretium ) for we call it also taxe : but ouer curiously to contend in these derivatiōs , may seeme friuolous , cōsidering that many words are common to diuers peoples . telonium , or breue essendi quietum de telonio , is a writ lying for the citizens of any citie , or bourgesses of any towne that haue a charter , or prescription to free them from tolle , against the officers of any town , or market constraining them to pay tolle of their merchandise , contrary to their said graunt or prescription . fitzh . nat . br . fol. . hotoman lib. . commentariorum in feuda , cap. . vers . vectigalia , hath these words : telonis autem dicuntur , public anorum stationes in quibus vectigalia recipiunt : sed apud istius generis scriptores , telonium dicitur vectigal , quod pro pontium aut riparum munitione penditur : & plerumque á principibus solius exactionis causa , imperatur . team , aliás theam , is an ould saxon word , signifiing a royalty granted by the kings charter , to a lord of a maner . bracton li. . tracta . . ca. . of this saint edwards lawes , nu . . say thus . quod si quisquam aliquid interciet ( id est , penes alium defendat ) super aliquem , & intercitatus , non poterit warantum suum habere , erit forisfactura sua , & iusticia similiter de calumniatore , si defecerit . m. skene de verborum significatione , verbo theme . saith , that it is a power to haue seruants and slaues , which are called natiui , bondi , villani ; and all baronies insoffed with theme , haue the same power . for vnto them all their bondmen , their children , goods and cattels , properly appertaine : so that they may dispose of them , at their pleasure . and in some ould authentike bookes it is writen . theme est potestas habends natinos , it a quòd generationes villanorum vestrorum , cum eorum catallis , vbicunque inueniantur , ad vos pertineant , theme commeth from than . i. servus , and therefore some time signifieth the bondmen , and slaues , according to an ould statute and law . de curia de theme . quod si quis teneat curiam de theme , & illa querela in illa curia mouetur , ad quam theme vocatur : non debet illa curia elongari , sed ibidem determinari , & omnes theme ibi compareant . which is vnderstoode of the question of liberty , when it is in doubt , whether any person be a bondman or free man. which kinde of proces should not be delayed but summarily discided . and the new expositour of law terms . speaketh to the like effect , verbo them. i read it also in an ould paper writen by an exchequer man thus translated : theam . i. propago villanorum . teller , is an officer in the eschequer , of which sort their be foure in number . and their office is , to receiue all monies due to the king , and to giue to the clerk of the pel a bill to charge him therewith . they also pay to all persons , any money paiable vnto them by the king , by warrant from the auditour of the receipt . they also make weekely and yearely bookes both of their receipts & payments , which they deliuer to the l. treasurer . templers ( templarii ) see knights of the temple . these whil lest they florished here in england , which seemeth to be all that time betweene henry the seconds daies , vntill they were suppressed , had in euery nation a particular gouernour , whom brac. calleth magistrū militiae tēpli : l. . c. . of these read m. cam. in his br. p. . see hospitalers . temporalties of bishops ( temporalia episcoporum ) be such reuenewes , lands , and tenements , as bishops haue had laid to their sees by the kings and other great personages of this land from time to time , as they are barons , and lords of the parlament . see spiritualties of bishops . tend , seemeth to signifie , as much as to indeuour , or offer , or shew forth , to tend the estate of the party of the demaundant , old n. br . f. . b. to tend to trauers . stawnf : prarog . fol. . to tend an auertment . britton , cap. . tender , seemeth to come of the french ( tendre . i. tener , delicatus ) and being vsed adiectiuely , signifieth in english speech , as much as it doth in french. but in our common law , it is vsed as a verb : and betokeneth as much , as carefully to offer , or circumspectly to indeuour the performance of any thing belonging vnto vs : as to tender rent , is to offer it at the time and place where and when it ought to be paid . to tender his law of non summons . kitch . fo . . is to offer himselfe ready to make his law , whereby to prooue that he was not summoned . see law . see make . tenementis legatis , is a writ that lyeth to london , or other corporation , where the custome is , that men may demise tenements by their last will , as well as their goods and catels , to whome they list , for the hearing of any controuersie touching this mater , and for the rectifying of the wrong . regist . orig . fol. . b. tenant , aliâs , tenent , ( tenens ) commeth either of the latine ( tenere ) or of the french ( tenir ) and signifieth in our common lawe , him that possesseth lands , or tenements by any kind of right , be it in fee , for life , or for yeares . this word is vsed with great diuersitie of epithits in the lawe , sometime signifying or importing the efficient cause of possession , as tenent in dower : which is shee , that possesseth land , &c. by vertue of her dower . kitchin , fol. . tenent per statute merchant . idem , fol. . that is , he that holdeth land by vertue of a statute forfeited vnto him . tenent in franck mariage . kitchin , fol. . viz. he that holdeth land or tenement by reason of a gift thereof made vnto him vpon mariage , betweene him and his wife . tenent by the courtesie . idem , fol. i. he that holdeth for his life by reason of a child begotten by him of his wife being an inheritrix , and borne aliue . tenent per elegit . idem , fol. . i. he that holdeth by vertue of the writ termed elegit . tenent in mortgage . idem , fol. . is he that holdeth by vertue of a mortgage or vpon condition , that if the lessour pay so much money at such a day , that he may enter , and if not , that the leassee shall haue a fee simple , fee tayle , or free hould . sometime these epithites import the maner of admittance : as tenent by the verge in auncient demesn . idem . fol. . is he that is admitted by the rod in a court of auncient demesne . sometime the euidence , that he hath to shew for his estate : as tenent by copy of court rolle , which is one admitted tenent of any lands , &c. within a maner , that time out of the memorie of man , by the vse and custome of the said maner , haue bene demisable , and demised to such as will take the same in see , fee-tayle , for life , yeares , or at will , according to the custome of the said maner . west parte prim . sym . lib. . se . . whom reade more at large . againe , tenent by charter , is he that holdeth by feofment in writing or other deede . kitchin ; fol. . sometime these epithites signifie that dutie which the tenent is to performe by reason of his tenure . as tenent by knights seruice , tenent in socage , tenent in burgage , tenent in frank fee , tenent in villenage . sometime they import the estate of the tenent , or his continuance in the land , as tenent in fee simple . kitchin , fol. . tenent in fee taile , idem fol. . tenent for life , and tenent for yeares : idem , fol. . tenent at the will of the lord according to the custome of the maner . idem fol. . & . tenent at will by the common law . idem , eodem . tenent vpon sufferance . idem , fol. . tenent of state of inheritance . stawnf : praerog . fol. . sometime they containe a relation toward the lord of whom he houldeth , as tenent in cheife . i. he that houldeth of the king in the right of his crowne . fitz. nat : br . fol. . f. tenent of the king , as of the person of the king. idem , eodem . or as of some honour . eodem : very tenent . i. he that houldeth immediately of his lord. kitchin fol. . for if there be lord mesn . and tenent , the tenent is very tenent to the mesn , but not to the lord aboue . tenent parauaile , pl. cor : fo . . & fitzh . nat . br . fol. . d. is the lowest tenent , and fardest distant from the lord paramont . it seemeth to be tenent per auaile . see diers commentaries fol. . nu . . noe tenent in right to the lord , but tenent as for the avowrie to be made , litleton , fol. . sometime they haue a relation betweene tenents , and tenents in seuerall kindes , as ioynt tenents . i. they that haue equall right in lands and tenements , and all by vertue of one title . litleton , li. . ca. . tenents in common , be they that haue equall right , but hold by diuers titles , as one or more by gift or descent , and others by purchase . idem , eod . cap. . particular tenent . stawnf . praerog . fol. . that is , he which holdeth onely for his terme , as tenent in dower , tenent by the courtesie , or otherwise for life , west parte . symbol . titulo . fines . sect . . g. see anno . h. . ca. . and cooke in sir william pellams case . lib. . fol. . a. they be termours for yeares or life . see plowden casu colthirst . fol. . b. sole tenent , kitchin . i. he that hath none other ioyned with him . if a man and his wife hold for both their liues , and the man dyeth , he dieth not sole tenent , idem eodem . seuerall tenent , is opposite to ioynt tenents or tenents in common . see seuerall tenencie . tenent al praecipe , is he , against whom the writ ( fraecipe ) is to be brought . cookes reports . lib. . the case of fines . fol. . a. tenent in demesn , anno . ed. . cap. . anno . h. . cap. . is he that holdeth the demeanes of a maner for a rent without seruice . tenent in feruice , an . . ed. . stat . pri . is he that holdeth by seruice v. britton . cap. . in principie , & ca. . car fealte , &c. vel quaere whether he may be termed tenent in demesne , that holdeth some of the demeanes howsoeuer , and he tenent in seruice , which is a freehoulder to a maner houlding by seruice , for the free houlds of a manner are not accounted of the demesne , but onely that which the lord keepeth in his owne hand or letteth out by copie , according to the custome of the maner . tenent by execution an . . henr. . cap. . is he that holdeth land by vertue of an exeution vpon any statute , recognisance , &c. tendeheved ( decanus , vel caput decem familiarum ) of this see roger hoveden , parte poster . suorum annalium . fol. . a. see frank pledge . tenement ( tenementum ) is diuersly vsed in the common lawe , most properly it signifieth a house or home stall : but in a larger signification it is taken for either house or land that a man holdeth of another . and ioyned with the adiectiue ( frank ) in our lawyers french , it conteineth generally lands or houses , yea or offices , wherein we haue estate for terme of life , or in fee. and in this signification , kitchin , fol. . maketh frank tenement , and base estate opposite the one to the other . in the same sort doth britton vse it , through his whole . chapter , as also bracton doeth the latine ( liberum tenentum ) lib. pri . cap. . & . and many other places . tenentibus in assisa non onerandis , &c. is a writ that lieth for him to whome a disseisour hath alienated the land whereof he disseised another , that he be not molested for the dammages awarded , if the disseisour haue wherewith to satisfie them him selfe . register . orig . fol. . b. tenths ( decimae ) is that yearely portion or tribute , which all liuings ecclesiasticall doe yeeld to the king . for though the bishop of rome doe originally pretend right vnto this revenewe , by example of the high preist among the iewes , who had tenths from the levites , numb . cap. . hieronimus in ezechielem . yet iread in our chronicles that these were often graunted to the king by the pope , vpon diuers occasions , sometime for one yeare , sometime for more , vntill by the statute , anno . hen. . cap. . they were annexed perpetually to the crown . see disms . it signifieth also a taske leuied of the temporalty . holinshed . h. . f. . tenore indictamenti mittendo , is a writ whereby the record of an indictment , and the proces thereupon , is called out of another court into the chauncerie . register orig . fol. . a. tenure ( tenura ) commeth of the norman ( teneure ) as appeareth by the grand custumarie : cap. . where it is defined to this effect : tenure is the maner , whereby tenements are houlden of their lords . what may make a tenure and what not , see perkins reseruations , . and in that chapter shall you finde the most of those tenures recited , that be now vsually in england . in scotland i finde that there be foure maner of tenures , which they call halding of land ; the first is pura eleemozina , which is proper to spirituall men , paying nothing for it , but deuot a animarum suffragia : the second they call few , or few ferme , which houldeth of the king , church , barons , or others , paying a certaine duty called feudi firma . the third is a hould in ( blench ) as they terme it , by payment of a peny , rose , paire of guilt spurs , or some such like thing , if it be asked , in name of blench , id est nomine albae firmae . the fourth is by seruice of ward , and relieue , where the heire being minor , is in the gard or custody of his lord , togither with his lands , &c. and land houlden in this fourth maner , is called there feudum de hauberk , or haubert . or feudum militare , or feudum hauberticum , or feudum loricatum : because it is giuen vpon condition , that the vassall possessor therof , shall come to the host with a lack , or haubert which is a coate of maile . m. skene de verb : significa : verbo . haubert . tenure in grosse , is the tenure in capite . for the crowne is called a seignory in grosse , because it consisteth as a corporation of and by it selfe , not tyed to any honour , or maner . see cromptons iurisd : fol : . see the new booke of entries , verbo tenure . term ( terminus ) signifieth with vs commonly , the bounds and limitation of time : as a lease for terme of life or terme of yeares . bracton lib. . cap. . nu . . but most notoriously it is vsed for that time , wherein the tribunals , or places of iudgement are open to all that list to complaime of wrong , or to seeke their right by course of law , or action . the rest of the yeare is called vacation . of these terms there be foure in euery yeare : during the which , maters of iustice ( for the most part ) are dispatched . and this sir tho. smith lib. . de rep. ang : cap. . reckoneth as miraculous : that in lesse time then the third part of the yeare , three tribunals , all in one city , should certifie the wrongs of so large and populous a nation , as england is . of these terms one is called hilary terme which beginneth the . of iannuary , or if that be sunday , the next day following , and eudeth the . of february . another is called easter terme , which beginneth . daies after easter and endeth the munday next after ascension day . the third is trinity terme , beginning the friday next after trinity sūday , and ending the wedensday fortnight after . the fourth is mich aelmas terme , beginning the of october , or if that be sunday , the next day after , and ending the . of nouember . termor ( tenens extermino ) is he that ●houldeth for terme of yeares or life . kitchin fol. . litleton fol. . terra extendenda is a writ directed to the escheatour , &c. willing him to inquire and find the true yearely value of any land , &c. by the oath of twelue men , and to certifie the extent into the chauncerie , &c. regist . orig . fol. . b. terris , bonis & catallis rehabendis post purgationem , is a writ that lyeth for a clerke to recouer his lands , goods , or chatels formerly seised on , after he hath cleared himselfe of that felonie , vpon suspition whereof he was formerly conuicted , and deliuered to his ordinarie to be purged . regist . orig . fol. . b. terris liberandis , is a writ , that lyeth for a man conuicted by attaint , to bring the record and processe , before the king , and to take a fiue for his imprisonment , and to deliuer him his lands and tenements againe , and to release him of the strip and waste . regist . orig . fol. . a. it is also a writ for deliuery of lands to the heire after homage , and reliefe performed . eodem fol. . b. or vpon securitie taken , that he shall performe them . eodem , fol. . b. terris & catallis ventis vltra debitum levatum , is a writ iudiciall , for the restoring of lands or goods to a deptour that is distrained aboue the quantitie of the dept . register iudiciall . fol. . b. terretenent , ( terratenens ) is he which hath the naturall , and actuall possession of the land , which we otherwise call the occupation . anno . . eliz cap. . for example , a lord of a maner hath a freeholder , who letteth out his freeland to another to be occupied : this occupier is called the terretenent . west . parte . symb . titulo . fines . sect . . cromptons iurisd . fol. . britton . cap. . perkins feofments . . and petrus bellugain speculo principum . rub. . versiculo , restat videre num . . vseth this word terratenentes in the same signification . see land tenents . yet i haue heard some learned in the lawe say , that the tertenent , is the teuent in free , or copyhold , according to the custome of the maner , and opposite to tenent for terme of yeres . quaere . ters , is a certaine measure of liquide things , as wine , oyle , &c. conteining the sixth part of a tunne . anno . h. . cap. . or the third part of a pipe . testament , ( testamentum . ) see will. testatum , is a writ that seemeth especially to lye against great personages of the realm , whose bodies may not be medled with in actions of dept . and therefore if the shyreeue return , ( nihil habet in balliva mea ) in a case of execution , another writ shall be sent out into any other countie , where such personage is thought to haue whence to satisfie , which is termed a testatum ; because the shyreeue hath formerly testified , that he found nothing in his bayliweeke to serue the turne . see kitchin in his returnes of writs . fol. . b. teste , is a word commonly vsed for the last part of any writ : so called , because the very conclusion of euery writ wherein the date is contained , beginneth with these words , ( teste ●eipso , &c. ) if it be an originall writ , or if iudiciall , teste thom. flemming , or edovar do cooke , according to the court whence it commeth . where i may note by the way , that in glanvile lib. pri . cap. . & . & lib. . cap. . i find the forme of an originall writ in the last clause to be ( teste ranulpho de glanvilla apud clarindon , &c. and diuers times in the register orig . teste custode anglu : as namely , in the title prohibition . fol. . a. and consultation , fol. . b. thanus , is a made latin word of the saxon ( thegn ) which commeth of ( thenian . i. alicui ministrare . ) it signifieth sometime a noble man , somtime a free man , sometime a magistrate , somtime an officer , or minister . lamb. in in his explication of saxon words . verbo : thanus . see the place . see vavasour . m. skene de verbor . signif . saith , it is the name of a dignitie , and appeares to be equall with the sonne of an earle . and thanus was a free holder holding his lands of the king. and a man not taken with the fang ( that is , with the maner , as we say , ) accused of theft , no sufficient proofe being brought against him , must purge himselfe by the oath of . men , or of three thanes . thanagtum regis , signifieth a certaine part of the kings lands , or propertie , whereof the rule and gouernement appertaineth to him , who therefore is called thanus . for domania regis , and thanagia , idem significant . it is a dutch word : for ( teiner ) signifieth a seruant , and teiner to serue . and thane is likewise a seruant , and vnder-thane , an inferiour thane or subiect . thus farre m. skene . thack tile . anno . ed. . cap. . otherwise called plaine tyle , is that tile which is made to be layed vpon the side , and not vpon the rudge of a tyled house . anno . ed. . cap. . theam . see team . theft ( furtum ) is an vnlawfull felonious taking away of another mans moueable , and personall goods against the owners will , with an intent to steale them . west . parte . symbol . titulo inditements . sect . . where also he saith , that theft is from the person or in presence of the owner , or in his absence . theft from the person or in presence of the owner , is of two sorts : the one putting the owner in feare , the other not . idem , eodem , sect . . the former is properly called robberie . ibid. sect . . the new expounder of lawe termes , verbo larconie , diuideth theft into theft so simply called , and petit or litle theft . whereof the one is of goods aboue the value of twelue pence , and is felonie , the other vnder that value , and is no felonie . but see felonie . theftbote , is made of ( theft ) and ( boote ) i. compensatio , and signifieth properly the receiuing of goods from a theefe , to the end to fauour , and maintaine him . the punishment whereof is raunsome and imprisonment , and not losse of life and member . stawnf . pl. cor . lib. prim . cap. . and the myrror of iustices . lib. . cap. des peches criminels al sute le roye . and yet he there maketh mention of a record alledged , which testified a iudgement of life and member given in this case . thegue . see thanus , and thingus . them. see team . it signifieth acquietantiam amerciamentorum sequelae propriorum servorum . fleta lib. prim . cap. . § . theme . thelonium . see tholle , and tholonium , and tolle . theolonio rationabili habendo pro dominis habentibus dominica regis ad firmam , is a writ , that lyeth for him , that hath of the kings demesne in fee ferme , to recouer reasonable tolle of the kings tenents there , if that his demesn haue bene accustomed to be tolled . register origin . fol. . b. thingus . cromptons iurisd . fol. . seemeth to be vsed for the saxon thegne . see thanus . his words are these , speaking of a charter or graunt made by a lord of a forest . scietis me concessisse omnibus militibus , & omnibus thingis , & omnibus liberè tenentibus , qui manent in forestamea do honore de lancaster , quòd possunt , &c. fleta writeth it tlem , & saith , quod significat liberum . then , significat servum . fleta li. prim . cap. . see thanus , and thingus . thridborow , is vsed for a constable . anno . h. . cap. . which also is noted by m. lamberd in his tractate intituled : the dutie of constables , pag. . which seemeth to be corruptly vsed for the saxon ( freoborh . i. ingenuus fide iussor , ) or ( freborheshe ofod . i. vas primarius ) idem . in his explication of saxon words . verbo . centuria . thrid with hawan man ( trium noctium hospes ) who if he did any harme , his host , by the lawes of saint edward , and of the conquerour , was answerable for the harme . rogerus hoveden parte poster suorum annal . fol. . thokei of fish , anno . ed . cap. . tholl ( thollonium ) est libertas emendi , & vendendi in terra sua . archainom . lamb. fol. . see toll . thraue of corne , anno . h. . ca. . consisteth of two shookes : and euery shoke conteineth . sheaues . it seemeth to be a word proper to the north parts . thrimsa , commeth of ( threo ) that is three , and signifieth a peece of money of three shillings . lamb. expla . of saxons words . verbo thrimsa . tilsen of saten , anno . h. . ca. . tince● , commeth of the french ( estincelle . i. scintilla ) or the verb ( estinceller . i. scintillare ) it signifieth with vs a stuffe or cloath made partly of silke and partly of gold or siluer , so called because it glistereth or sparkleth like starres . tissu , is a french word signifiing as much as ( wouen ) cloth of tissue , with vs cloth of silke and siluer , or of silke , and gould wouen togither . tithe ( decimae ) seemeth to be an abbreuiat of ( tything ) being the saxon ( teothung ) a litle altered , which signifieth decuriam , lamb. explica . of saxon words . verbo . decuria . it signifieth in our common lawe , the tenth part of all fruites prediall , or personall , which be due to god , and so consequently to his minister , toward the recompence of his paines taken in instructing his charge , how to liue after gods commandements , and his continuall intercession that he doth or ought to make vnto god for their both spirituall and temporal blessings leuit. cap. . versu . . i say the tenth part , though couarruvias with other learned canonists and scholemen , hold the rate of tithes , not to be necessarily the tenth part of the fruites by the morall lawe of god. yet the beter and more theologicall opinion is , that they are all deceiued , and that from their errour hath sprong much wrong to almighty god , and greate mischief to his church : & that by the law of god and nature no contrary custome ought to last any longer , then the parson and parishioner shall both thinke well of it . wherefore those customes of paying a halfepeny for a lambe , or a pennie for a calfe by such as haue vnder seuen in one yeare , how long so euer it hath indured , is but very vnreasonable in these daies , when both lamb and calues are growne foure times deerer , and more then they were when this price was first accepted . and therefore no man dischargeth well his conscience in this point that paieth not duly the tenth of euery lamb , euery calfe , and euery otherthing titheable . for by this course the minister fareth well or euill in a proportion with his parishioner , as it pleaseth god to giue increase , whereas by any other order the one or the other shall finde want of indifferencie , as the prices of things shall rise or fall . tithing ( tithingum ) is the saxon word teothung for the which see ( tithe ) it signifieth ( as m. lamb. saith in his dutie of constables ) the number or company of ten men with their families cast , or knit together in a societie , all of them being bound to the king for the peaceable and good behauiour of each of their societie . of these companies was there one cheife or principall person , who of his office was called ( toothung man ) at this day in the west parts ( tithingman ) but now he is nothing but a constable . for that old discipline of tithings is left long sithence . it signifieth also a court , anno . ed. . cap. . & anno . h. . cap. . see chiefe pledge and frank pledge , and decennier . tithing is vsed for a court. magna charta , cap. . and merton , cap. . todde of wooll , is a quantitie conteining . pound in weight , or two stone . tost ( tostum ) is a place , wherein a mesuage hath stoode west . parte . symbol . titulo fines sect . . toile , commeth of the french ( toile . i. tela ) and signifieth with vs a net of cord to compasse or take deere . to lange and to bred . see bred. tolle ( tollere ) as it is a verbe signifieth to defeate or take away , anno . h. . cap. . toll , aliás tholl ( tolnetum , aliás theolonium ) is a saxon word , and hath in our common lawe two significations : first it is vsed for a libertie to buy and sell within the precincts of a maner . lamb. archainom . fol. . which seemeth to import so much as a faire or market . the words be these : thol ( quod nos dicimus tholoniū ) est scilicet quod habeat libertatem vendendi & emendi in terra sua . in the second signification it is vsed for a tribute or custome paid for passage , &c. as in bracton . si cui concedatur talis libertas quòd quietus sit de theolonio & consuetudinibus dandis per totum regnum angliae in terra & mari , & quod theolonium & consuetudines capiat infra libertatem suam de ementibus & vendentibus , &c , lib. . cap. . num . . but euen there in the end of the second number he hath this word , toll ( as it seemeth ) in the former signification also , which by these words aboue written folowing a little after , he interpreteth to be a libertie as well to take as to be free from tolle . the made latine word ( theolonium ) cassanaus in consuetud . burgund . pag. , deriueth a tollendo ) but i rather thinke it commeth from the greeke ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) or ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) . i. vectigalium redemptio , vel etiam vectigalium exactio ) fleta hath these words of it : tol significat acquietantiam theolonii vbique in regno , lib. pri . cap. . m. skene de verb. signifi . verbo toll , saith it is a custome , and that it commeth from the greeke word of the same signification ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) and that he who is infeoffed with toll , is custome free , and payeth no custome : which is manifest by sundry ould bookes , wherein it is writen : toll , hoc est quod vos & homines vestri de toto homagio vestro sint quieti de omnibus mercantus , & de tolneto , de omnibus rebus emptis & venditis . thus farre he . kitchin fol. . maketh mention of tolle through , and toll trauers , his words be to this effect . custom or prescription to haue toll through in the high way , is not good : for it is against the common right . but to haue prescription of tolle trauers , is good . in which place the difference betweene the one , and the other the newe expositour of lawe terms faith to be , that tolletrauers is that mony , which is taken for passing ouer a priuate mans ground . but this author seemeth to differ from kitchin touching the lawfulnes of tolle through , saying that by reason of a bridge prouided at the cost and charge of the towne , for the ease of trauellers , he thinketh it resonable , that tolle through be exacted toward the maintenance thereof : which writer also maketh mention of tolle turn : and that he defineth to be tolle paide for beastes driuen to be sold , though they be not sold indeede . where , i think , he must meane a tolle paide in the returne homeward from the faire or market , whether they were driuen to be sold . plowden , casu willion , fo . . agreeth in this definition of tolle trauers . and this the feudists call parangariam , defining it to be sumptus & labores ferendi referendiue alicui●s causa a principe impositi , cùm non per viam , sed aliò versùm iter suscipitur . l. . co. de episc . & cleri . a graeco ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) . i. transitus per viam transversam . gothofred . ad . l. . § . . Π. de vetera . i finde in andrew horns mirrour of iustices , lib. . cap. des articles , &c. that by the auncient lawe of this land , the buyers of corne or catell in faires or markets , ought to pay tolle to the lord of the market , in testimony of their contract there lawfully made in open market : for that priuie contracts were held vnlawfull . toloneum or breve de essends quietum de toloneo , is a writ that lyeth in case , where the citizens of any citie , or burgesses of any towne , be quit from tolle by the graunt of the kings predecessours , or prescription : which you haue at large in fitzh . nat . br . fol. . see telonium . tolt ( tolta ) is a writ whereby a cause depending in a court baron , is remoued into the county court . old. nat . br . fol. . the reason of the appellation seemeth ●o come from the verb ( tollo ) v : cooke , lib. . in praefatione ad lectorem . tonne . see tunne . tonnage , is a custome or impost due for merchādise brought or caried in tonns and such like vessels , from or to other nations after a certain rate in euery tonne anno . ed. . ca. . anno . h. . ca. . & anno pri . ed. . cap. . anno pri . iacobi , cap. . i haue heard it also called a duty due to the mariners for vnloading their ship arriued in any hauen after the rate of euery tonne . torny . see turney . totted anno . ed. . cap. . & anno . ed. . ca. . is a word vsed of a dept , which the forein apposer or other officer in the exchequer noteth for a good dept to the king by writing this word ( tot ) vnto it . tourn . see turn . tout temps prist & vncore est : that is to say in english , alway ready and is at this present : this is a kinde of plee in way of excuse or defence vnto him that is siewed for withhoulding any dept , or duty belonging to the plaintiffe . see of this brooke his abridgement , fol. . traile baston . see iustices of triall baston . traitor ( traditor , proditor ) see treason . transgressione , is ●writ , called commonly a writ or action of trespas . of this fitzherbert in his naturabre : hath two sorts : one vicountiel , so called , because it is directed to the shyreeue , and is not returnable but to be determined in the countie : the forme whereof differeth from the other , because it hath not these words : quare vi & amis , &c. and this see in fitzh . nat . br . fol. . g. the other is termed a writ of trespasse vpon the case , which is to be siewed in the common bank , or the kings bench , in which are alwaies vsed these words vi & armis , &c. and of this you haue fitzh . nat . br . fol. . e. see trespas . see the diuers use of this writ in the register originall , in the table . transcript , anno . & . h. . cap. . is the copy of any originall writen againe or exemplified . transcripto recognitionis factae coram iusticiariis itiner antibus , &c. is a writ for the certifiing of a recognisance , taken before iustices in eire , into the chauncery , register orig fol. . b. transcripto pedis finis levati mittendo in cancellariam , is a writ for the certifiing of the foote of a fine leuied before iustices in eyre , &c. into the chauncerie , eodem . fol. . & register iudiciall , fol. . travers , cōmeth of the french ( traverser . i. transfigere ) it signifieth in our common lawe sometime to denie , sometime to ouerthrow , or vndoe a thing done . touching the former signification take these words in wests symbol . parte . titulo chauncery , sect . . an answer ( saith he , speaking of an answer 〈◊〉 a bille in chauncerie ) is that , which the defendant pleadeth or saith in barre to avoide the plantiffes bille , or action , either by confession and avoiding , or by denying and traversing the materiall parts thereof . and againe , sectio . . a replication is the plaintifles speech or answer to the defendants answer , which must affirme and persiew his bille , and confesse and auoide , deny or traverse the defendants answer . and the formall words of this trauers are in lawyers french ( sans ceo ) in latine ( absque hoc ) in english ( without that . ) see kitchin fol. . titulo affirmatiue & negatiue . in the second signification i find it in stawnfords praerog . cap. . through the whole chapter , speaking of trauersing an office : which is nothing else , but to proue , that an inquisition made of goods or lands by the eschetour , is defectiue and vntruly made . so trauersing of an inditement , is to take issue vpon the chiefe mater thereof : which is none other to say , then to make contradiction , or to deny the point of the enditement . as in presentment against a. for a high way ouerflowne with water for default of scowring a ditch , which he and they , whose estate he hath in certain land there , haue vsed to scower and cleanse . a. may trauerse either the mater , viz. that there is no high way there , or that the ditch is sufficiently scowred : or otherwise he may trauers the cause , viz. that he hath not the land , &c. or that he and they whose estate , &c. haue not vsed to scoure the ditch . lamb. eirenarcha . lib. . cap. . pag. . of trauers see a whole chapter in kitchin , fol. . see the new booke of entries . verbo , trauers . treason ( traditio , vel proditio ) commeth of the french , trahison , i. proditio ) and signifieth an offence committed against the amplitude and maiestie of the commonwealth . west parte . symbol . titulo inditements . sect . . by whom it is there diuided into high treason , which other call altam proditionem , and petit treason . high treason he defineth to be an offence done against the securitie of the common wealth , or of the kings most excellent maiestie : whether it be by imagination , word , or deed : as to compasse or imagine treason , or the death of the prince , or the queene his wife , or his sonne and heyre apparent , or to deflowre the kings wife , or his eldest daughter vnmaried , or his eldest sonnes wife : or leuie war against the king in his realme , or to adhere to his enemies , ayding them , or to counterfeit the kings great seale , priuie seale , or money , or wittingly to bring false money into this realme counterfeited like vnto the money of england , and vtter the same : or to kill the kings chaunceler , treasurer , iustice of the one bench , or of the other , iustices in eyre , iustices of assise , iustices of oyer and terminer , being in his place , & doing of his office . anno . ed. prim . ca. . or forging of the kings seale manuell , or priuy signet , priuy seale , or forrein coine current within the realme anno . mar. cap. . or diminishing or impairing of money current , an . . elizab. ca. . & anno . el. ca. . & . elizab. ca. pri . and many other actions which you may read there and in other places particularly expressed . and in case of this treason a man forfeiteth his lands , and goods to the king onely . and it is also called treason paramount . anno . ed. . cap. . the forme of iudgement giuen vpon a man conuicted of high treason is this . the kings sergeant after the verdict deliuered , craueth iudgement against the prisoner in the behalfe of the king. then the lord steward ( if the traitour haue bene noble ) or other iudge ( if he be vnder a peere ) saith thus : n. earle of p. for so much as thou before this time hast bene of these treasons indited , and this day arraigned for thee same , and put thy selfe vpon god and thy peeres , and the lords thy peeres haue foūd thee guilty , my iudgement is that thou shalt from hence be conueied vnto the tower of london , whence thou camest , and from thence drawne through the middest of london to tiburne , and there hanged : and liuing thou shalt be cut downe , thy bowels to be cut out and burnt before thy face , thy head cut off , and thy body to be diuided in foure quarters , and disposed at the kings maiesties pleasure : and god haue mercy vpon thee . petit treason is rather described by examples , then any where logically defined : as when a seruant killeth his master , or a wife her husband , or when a secular or religious man killeth his prelate , to whom he oweth faith and obedience . and in how many other cases petit treason is committed . see cromptons iustice of peace . and this maner of treason giueth forfeiture of escheats to euery lord within his owne fee anno . ed. . cap. . of treason see bracton lib. . tract . . cap. . nu . pri . & . treason compriseth both high and petit treason anno . ed. . stat . . cap. . treasure troue ( the saurus inuentus ) is as much as in true french ( tresor trouuè ) . i. treasure found : and signifieth in our common law , as it doth in the ciuile law , idest , veterem depositionem pecuniae , cuius non extat memoria , vt iam dominum non habeat . l. § . prim . Π. de acquir . rerum dom. neere vnto which definition commeth bracton . lib. . tract . . cap. . num . . and this treasure found , though the ciuill lawe do giue it to the finder , according to the lawe of nature ; yet the lawe of england , giueth it to the king by his prerogatiue , as appeareth by bracton vbi supra . and therefore as he also saith in the sixth chapter , it is the coroners office to enquire therof by the countrie to the kings vse . and stawn . pl. cor . lib. pr. cap. . saith , that in auncient times , it was doubtfull , whether the concealing of treasure found were felonie , yea or not : and that bracton calleth it grauem praesumptionem , & quasi crimen furti . but the punishment of it at these dayes , as he proueth out of fitzh . abridgment . pag. . is imprisonment , and fine , and not life and member . and if the owner may any way be knowne , then doth it not belong to the kings prerogatiue . of this you may reade britton also ; cap. . who saith , that it is euery subiects part , as soone as he hath found any treasure in the earth , to make it knowne to the coroner of the countrie , or to the bayliffes , &c. see kitchin also , fol. . treasurer , thesaurarius , commeth of the french ( tresorier ) i. quaestor , praefectus fisci ) and signifieth an officer , to whom the treasure of another , or others , is committed to be kept , and truly disposed of . the chiefest of these with vs , is the treasurer of england , who is a lord by his office , and one of the greatest men of the land : vnder whose charge and gouernment is all the princes wealth contained in the exchequer , as also the checke of all officers any way employed in the collecting of the imposts , tributes , or other reuenewes belonging to the crowne . smith de repub. anglor . lib. . cap. . more belonging to his office , see ann . ed. . cap. . & anno . h. . cap. . & anno . ed. . cap. pri . & anno . eiusdom . cap. . & anno prim . r. . cap. . & anno . h. . cap. . & anno prim . ed. . cap. . ockams lucubrations affirme , that the lord chiefe iustice had this authoritie in times past : and of him hath these words : iste excellens sessor omnibus , quae in inferrore vel superiore scacchio sunt , prospicit . ad nutum ipsius quaelibet officia subiecta disponuntur : sic tamen vt ad domini regis vtilitatem iuste perueniant : hic tamen inter caetera videtur excellens , quod potest his sub testimonio suo breve domini regis facere fieri , vt de thesauro quaelibet summa liberetur , vel vt computetur quod sibi ex domini regis mandato praenouerit computandum , vel si maluerit , breve suum sub aliorum testimonio faciet de his rebus . this high officer hath by vertue of his office at this day , the nomination of the escheatours yeerely throughout england , and giueth the places of all customers , controllers , and searchers in all the ports of the realme . he sitteth in the chequer chamber , and with the rest of the court , ordereth things to the kings best benefite . he with the barons may by statute stall depts of three hundred pounds and vnder . and by commission from his maiestie , he with others ioyned with him , letteth leases for liues or yeares , of the lands that came to the crowne by the dissolution of abbeys . he by his office giueth warrant to certaine men to haue their wine without impost . he taketh declaration of all the money payed into the receipt of the exchequer , and of all receiuers accompts . then is there a treasurer of the kings houshold , who is also of the priuie councell , and in the absence of the steward of the kings houshold , hath power with the controller and the steward of the marshalsea , without commission to heare and determine treasons , misprisions of treasons , murder , homicide , and bloudshed , committed within the kings pallace . stawnf . pl. cor . lib. . cap. . in the statute anno . rich. . cap. . & anno . h. . cap. . mention is made of the treasurer of calis . in westm . . cap. . of the treasurer of the exchequer . & anno . ed. . stat . . cap. . & ann . . eliz. cap. . of the treasurer of the nauie , or treasurer of the warres or garrisons of the nauie . anno . el. cap. . treasurer of the kings chamber . anno . h. . cap. . & anno eiusdem cap. . treasurer of the warres . anno . h. . cap. prim . anno . h. . cap. . treasurer of the chauncerie . west . parte . symbol . titulo fines . sect . . treasurer of the kings wardrobe . anno . ed. . stat . prim . cap. . & anno . eiusdem , stat . . cap. . whose office you haue well set foorth in fleta , lib. . cap. . treasurer of the countie for poore souldiers . anno . eliz. cap. . and most corporations through the kingdome , haue an officer of this name , that receiueth their rents , and disburseth their common expences . treate commeth of the french ( traire . i. emulgere ) and signifieth in the common lawe , as much as taken out , or withdrawne . as a iurour was chalenged , for that hee might not dispend . pounds , and for that cause he was treate by the statute . old na . br . fol. . that is , remoued or discharged . breade of treate , anno . h. . statute of breade , &c. what it signifieth , i cannot learne . trespas ( transgressio ) is a french word signifiing as much as mors , obitus , excessiss . the reason whereof i take to be , because in interpretation it is a passage from one place or estate to another : for in britton , cap. . i find trespassants for passengers . in our common law and language , it is vsed for any transgression of the lawe , vnder treason , felonie , or misprision of treason , or of felonie , as may be gathered out of stawnf . pl. cor . fol. . where he saith , that for a lord of the parlament to depart from the parlament without the kings licence , is neither treason nor felonie , but trespasse . and againe , fol. . saying , that where it was wont before the statute made anno prim . ed. . called statutum de frangentibus prisonam , that the breach of prison was felonie , if it were the kings prison : it is sithence but trespasse , except the prisoner were committed for felonie . but it is most commonly vsed for that wrong or dammage , which is done by a priuate man to the king , as in his forest , pl. cor . lib. . cap. . or to another priuate man. and in this signification it is of two sortes : trespasse generall , otherwise termed , trespasse vi & armis : and trespasse especiall , otherwise called trespasse vpon the case . and this seemeth to be without force . termes of the lawe . action vpon the case , as appeareth by kitchin , fol. . the former i take to be called generall , because it riseth from that generall ground in lawe , that whatsoeuer is done by any priuate mans humour vi & armis , is an offence . the later i call especiall , because kitchin calleth the other generall : and another reason may be this , because it springeth from a particular case or fact , not conteined vnder any other generall head . and the action lying for this trespasse , is otherwise called an action vpon the case , as may be gathered out of diuers places vnder the title trespasse , in brookes his abridgement . how to distinguish the forme of these writs or actions , see fitz. nat . br . fol. . i. & . h. i. in an action of trespasse , this is perpetuall , that the plaintiffe sieweth for dammages , or the valew of the hurt cone vnto him by the defendant . it seemeth an hard thing to distinguish these two kinds of trespasses so , as to be able to say when it is a trespasse vi & armis , and when vpon the case : as may well appeare to him that shall peruse this title in brooke . but this is to be left to the experiēce of graue and skilfull pleaders . i find moreouer in kitchin , fol. that there is a trespasse locall , and trespasse transitorie : trespasse locall is that , which is so annexed to a place certaine , as if the defendant ioyne issue vpon the place , and trauers the place , onely by saying , absque hoc , that he did the trespasse in the place mentioned in the declaration , and averre it , it is enough to defeate the action . trespasse transitorie is that , which cannot be defeated by the defendants trauers of the place , saying : without that i cōmitted the trespasse in the place declared : because the place is not materiall . examples of both you haue set downe by kitchin , in the place aboue named , to this effect : trauers by ( absque hoc ) of trespasse in batterie , or goods brought in , is transitorie , and not locall : as it is of trees cut , or herbes . and therefore in trespasse transitorie the place shall not make issue , neither is it trauersable : no more then is a trespasse vpon a case of an assumption . bracton in his fourth booke , cap. . num . . diuideth transgressionē in maiorem & minorem : which place reade . see also great diuersitie of trespasses in the new booke of entries . verbo trespasse . triall ( triatio ) is vsed in our common lawe , for the examination of all causes ciuill or criminall , according to the lawes of our realme . of this word stawn . pl. cor . lib. . cap. . writeth to this effect . there was a statute made prim . & secund . philip. & mar. cap. . to this purpose . and be it furder enacted by the authoritie aforesaid , that all trials hereafter to be had , awarded or made for any treason , shal be had and vsed according to the due order and course of the common lawes of this realme , and not otherwise , &c. by this word ( triall ) saith stawnf . in that place , some vnderstand as well the inquest that indicteth a man as the enquest vpon the arraignment , that attainteth or acquiteth him . for these two make but one entire triall , that euery man is to haue , when he is impeached of treason . but others haue answered to this , that triall in common speech , is the triall that a man is to haue , after he is indicted , and not before . for in lawe the inditement is nought , but the accusation against him , which he is to make answer vnto and that being tried , it either attainteth , or acquiteth him . so that the triall is the issue , which is tried vpon the inditement , & not the inditement it selfe . for that is no part of the thing which trieth , but the thing which is tried , and the offence . and so is this word triall vnderstood in the statute , anno . h. . cap. . where it saith thus . must be indighted within the shires or places , where they committed their offences , and also tried by the inhabitants , or feeeholders . so he putteth a differen ce betwene inditement and triall , as he doth also afterward in these words : there to be indited and tried of their offences , &c. thus far : stawnf . sir. tho. smith de rep. anglo . li . ca . saieth , that by order and vsage of england , there are three trialls , that is . . waies and maners , whereby absolute , and definite iudgement is giuen : by parlament , which is the highest , and most absolute . by battell and great assise : which he seuerally describeth in . chapters folowing , though not so fully as the thing requireth . but of the great assise , he speaketh at large in the . chapter of the same booke . and of these trials see more in stawnf . pl. cor . lib. . cap. pri . . & . whereof he deuideth the great assise into two sorts : one proper to baro● of the parlament , which is by . or . of their peeres : the other common to others of lower condition , which is by . men , that be neighbours to the place where the offence was committed , and of those you may read him at large in the saide chapters there following . see twelue men . see the new booke of entrise . verbo . triall . trihing ( trihinga , vel trithinga ) seemeth by a place in edward the confessours lawes , set out by m. lamberd , nu . . to be the third part of a shire or prouince , otherwise called ( leth ) which we now call ( leete ) . the same lawe doth m. camden also mention , pag. . & . this court is ahoue a court baron , and inferiour to the shire , or countie . this word is also vsed in the sentence of excommunication vpon the great charter and charter of the forest . denounced in the daies of edward the first , as it is latined in the booke called pupilla oculi . parte . cap. . a. i. in these words : visus autem de franco plegio sic fiat , sc : quòd pax nostra teneatur , & quod trihing a integra sit , sicut esse consueuit , &c. of this fleta lib. . cap. . § . final . writeth thus ; sciendum est quod al●● potestates erant super wapentakia , quae tritinga dicebantur , eo quòd erat tertia pars prouinciae , qni verò super eas dominabantur , trithingreves vocabantur , quibus deferebantur causa quae non in wapentakiis poterant definiri in schiram sicque quòd vocatur hundredum , iam per variationem locorum & idiomatis , wapentakie appellatur , & tria vel quatuor velplura hundreda solebant trithinga vocari : & quod in trithingis non poterant diffiniri in shiram . i. in comitatum deferebatur terminandū . modernis autem temporibus pro vno & eodē habentur apud homines hundreda wapentakia & trithinga learne whether those diuisions in yorke-shire called ridings , be not quasitrithings . of this roger houeden parte post . suorum annal . fo . . b. hath the same words in effect . treswell of double soled shooes , anno . & . ed. . cap. . which as i haue heard should rather be written creswel , signifieth the broad edge or verge of the shoe sole round about . trinitie honse , is a certaine house at deptford which belongeth to a companie or corporation of sea-faring men that haue power by the kings charter to take knowledge of those that destroy sea markes , and to redresse their doings , as also to correct the faults of saylers , &c. and to take care of diuers other things belonging to nauigation and the seas . v. anno . elizab. ca. . & anno . eiusdem , ca. . trink , is a kind of net to fish withall . anno . h. . cap. . triours , be such as be chosen by the court to examine whether a challenge made to the panell , or any of the panell , be iust yea , or not . brooke titulo . chalenge . f. . & ould na . br f. . tritis , aliás tristis , is an immunitie from that attendance , in the forest , whereby euery man dwelling in the forest , is tyed to be readie , houlding of a greyhound , when the lord of the forest is disposed to chace within his forest , at such place as he shall be appointed , or els to be amerced for dis default . manwood parte pri . of his forest lawes . pag. . and cromptons iurisdict . fol. . & . tronage ( tronagium ) is a kind of tolle , westm . . cap. . anno . ed. . taken ( as it seemeth ) for weying . for i find in fleta li. . cap. . § . item vlnas that trona is a beame to weigh with . see weight . trover , commeth of the french ( trouver . i. invenire ) it signifieth in our common lawe , an action which a man hath against one that hauing found any of his goods , refuseth to deliuer them vpō demaund . see the new bookof entries ver . trover . troy weight ( pondus troiae ) see weight . tumbrell ( tumbrellum ) is an engine of punishment , which ought to be in euery libertie that hath view of frank pledge , for the coertion of skowldes and vnquiet women , kitchin. fo . . a. newe booke of entries . franchise . & quo warranto . 〈◊〉 . see cucking stoole . tunne , is a measure of oile or wine conteining twelue score and twelue gallons , anno 〈◊〉 . r. . cap. . that is . hogsheads . tunnage . see tonnage . turbarie ( turbaria ) is an interest to digge turves vpon a common . kitchin , fol. . old . not . br . fol. . it commeth of the rude latine word ( turba ) which is vsed for a turfe . lynd , in provin . de de●imis cap. finali● turmerick ( turmerica ) is a certaine roote of an herb growing in arabia , as i haue bene informed , very wholsome for diuers diseases in horses , and sometime vsed for man also in the case of ieandes . it is reckoned among the garbleable drugs anno . iaco. ca. . turne ( turnum ) is the shyreeues court kept euery yeare twice : once after faster , and againe after micheelmas . magna charta cap. . and that within one moneth after each feast , anno . ed. . c. . from this court are exempted onely , archbishops , bishops , abbots , priors , earles , barons , all religious men , and women , and all such as haue hundreds of their owne to be kept . and these are not bound to appeare there except their apparence be especially required vpon some extraordinary cause , anno . h. . cap. . and britton , cap. . it seemeth to be called the shyreeues turn of the french word ( tour. i. ambitus . circuitus , vicissitudo ) and is of britton called tour , cap. . sub fine capitis , as if we would say ( the shyreeue his course ) for ( as britton noteth in the said . chapter ) that which before the shyreeue , is called the shyreeues turne , is called in the court of fraunchises and hundreds , the view of frank-pledge : wherein inquirie is especially made of such as be not in any dozin . with whome fleta agreeth : and by fleta it appeareth that this turn was the shyreeues course to keepe his courtin euery hundred . lib. . cap. . in princip . so that as the inferiour courts had their times to take knowledge of those , and other causes belonging to their cognisance : so the shyreeue had his course or turne to doe the like at these two seuerall seasons . that if there were any defects in them , it might be redressed in these , and gods peace and the kings so much the more carefully obserued . this , as lamberd saith , was of old called also the shyreeues moote , lib. . cap. . in this court ( as britton saith vbisupra ) the shyreeue causeth tobe found out . of the most sage , loyall and sufficient men of all the hundred ( for he kept his turne twice every yeare in each hundred . magna charta , cap. . & britton vbi supra ) whome he charged vpon their oathes , to present the truth touching the articles ministred vnto them , and set downe by britton in the same chapter . this done he put all other to their oathes , according to their dozins and villages ; truly to present vnto the former twelue all things concerning such articles , as by them they should be asked of . but fithence the hundred courts are all called to the county by the statute anno . . ed. . cap. . statut. pri . these turnes be likewise kept in one cheife place of euery shire ; and not seuerally in euery hundred , as before they were . of this you may reade more in britton or in cromptons iurisdiction fol. . and in the mirrour of iustices , lib. pri . cap. de turnes . turney ( torneamentum ) commeth of the french ( tournoy . i. decursorium ) it signifieth a martiall exercise of knights or souldiers fighting one with another in disport , and is thus defined . ca● felicit extra de torneamentis torneamenta dicuntur nundinae vel feriae , in quibus milites ex condicto convenire , & ad oftentationem virium suarum , & audaciae , temerè congredi solent . this word is vsed in the statute , anno . . henric. octau . capit . . and as i haue heard , it signifieth with vs in england those combats , that are made with arming swords on horsebacke . and i thinke the reason of the name to proceede from the french ( tourner . i. vertere ) because it consisteth much in agilitie both of horse and man. turno vececomitum , is a writ , that lyeth for those that are called to the shyreeues turne out of their owne hundred . register orig . fol. . tuain nithes gest . ( hospes duarum noctium ) roger houeden , parte poster suorum annalium , fol. . b. who if he did harme to any , his hoste was not aunswerable for it , but himselfe . see thrid nithes hawan man. twelue men ( duodecim homines legales ) is a number of twelue persons , or vp wards to the number of . by whose discretion all tryals passe both in ciuill and criminall causes , through all courts of the common law in this realme . first for ciuile causes , when proofe is made of the mater in question , as the parties and their councell thinke good , on both sides , the point of the fact , that they are to giue their verdict of , is deliuered likewise vnto them , which we call the issue : and then are they put in minde of their oath formerly taken , to doe right betweene party and party , and so sent out of the court seuerally by themselues to consider vpon the evidence of both sides , vntill they be agreed ; which done they returne to the court againe , and deliuer their verdict by the mouth of the foreman . and according to this verdict , iudgement afterward passeth , either condemnatorie for the plantife , or absolutory for the defendant . these . be called . milites . glanuilo , lib. . cap. . & . and so be they in bracton diuers times : but that word is altered . in causes criminall there be two sorts of enquests , one called the graund enquest , and the other the enquest of life and death . the graund enquest is so called , either because it consisteth commonly of a greater number then . as of . . or . at the least , or els because all causes criminall or penall first passe through them : whereas the other enquest is especially appointed for one or few maters touching life and death , committed to their considerations . those of the grand enquest are also called by bracton . milites lib. . tracta . . cap. pri . nu . . because they were wont to be knights , as it see . meth , and not inferiours , except so many knights could not be found . idem eodem . num . . in fine . and their function is to receiue all presentments made vnto them of any offence , and accordingly to giue their generall opinion of the presentment by writing either these words ( balla vera ) vpon the bille of presentment , which is an inditement of the party presented : or els this word ( ignoramus ) which is an absoluing of him . now as criminall causes be of two sortes , either capitall touching life and member , or finable : so is there a double course of these inditements . for in causes onely finable , the party indited must either trauers the inditement by denying it and so it is referred to a petit iury , whereby he is either conuicted or discharged of the crime , or els he confessing it , the court setteth his fine vpon his head wirhout more worke . but in maters of life and death , the party indited is commaunded to hold vp his hād , & āswer ( guilty ) or ( not guilty ) if ( guilty ) he standeth conuicted by his owne confession : if ( not guilty ) he is farder referred to the enquest of life and death : which consider vpon the proofe brought against the prisoner , and accordingly bring in their verdict , ( guilty ) or ( not guilty ) so is he iudged to dye , or deliuered by the court . of this read more in iuditement . assise , iury , see the statute anno . h. . cap. . & . ciusdem cap , . & anno . ed. cap. . & an . . el. ca. . v vacation ( vacatio ) hath an especiall signification in this kingdome , being vsed for all that time respectiuely which passeth betweene terme and terme at london . and when such times begunne and ended in our anncesters daies , see roger hovedens annals parte posteriori fo . . a. where you shall find that this intermission was called ( pax dei & ecclesiae . ) vaccarie , aliâs vacharie ( vaccaria , aliâs vacheria ) semeth to be a house to keepe kine in , fleta lib. . cap. . § . item inquiratur . and cromptons iurisd . fol. . in these words : without warrant no subiect may haue within the forest a vacarie . but in the statute anno . h. . cap. . i finde vacharie to be , as it were a speciall proper name of a certaine quantitie and compasse of ground within the forest of ashedowne . valewe ( valentia , valor ) the word is in it selfe plaine enough : but i cannot omitte one place in m. west . parte . . symbol . titulo inditements , sect . . v. w. touching the difference betweene value and price . these be his words , and the value of those things , in which offences are committed , is vsually comprised in inditements , which seemeth necessary in thest , to make a difference from perit larceny : and in trespas , to aggrauate the faulte , and increase the fine . but no price of rhings ferae naturae , may be expressed , as of deere , of hares &c. if they be not in parks and warrens , which is a liberty anno . ed. . fol. . nor of charters of land . and where the number of the things taken are to be expressed in the inditement , as of yong doucs in a doue house , yong haukes in a wood , there must be saide ( pretii ) or ( ad valentiam ) but of diuers deade things ( ad valentiam ) and not ( pretii ) of coine not current , it shal be ( pretii ) but of co●ne current , it shall neither be saide ( pret● ) nor ( ad valentiam ) for the price and value thereof is certaine . but of counterfeit coine , shall bee said ( ad valentiam ) and in couterfeiting of coine shall not be said ( decem libras in denariis dominae reginae ) nor ( in pecunia dominae reginae ) but ( ad instar pecuniae dominae reginae ) . valour of mariage ( valore maritagii ) is a writ that lyeth for the lord , hauing profered covenable mariage to the infant , without disparidgement , against the infant , comming to his yeares , if he refuse to take the lords offer . and it is to recouer the value of the mariage , regist . orig . fol. . old . nat . br . fol. . variance , commeth of the french ( varier . i. alter are ) it signifieth in the common lawe , an alteration , or change of condition after a thing done . for example , the communality of a towne make a composition with an abbot . afterward this towne by a graunt from the king obteineth bayliffes . this is a variance , and in this case , if the abbotcōmence any suite for breach of the composition , he must varie from the words of the communalty set downe in the composition , and begin against the bayliffes and the communalties . brooke tit . variance . fol. . it is also vsed for an alteration of some thing formerly laide in a plee , which is easilier knowne what it is , then when it may be vsed as it appeareth by brooke through the whole title aforesaide : see variance in the newe booke of entries . vassall , ( vassallus ) signifieth him , that holdeth land in see of his lord , hot. verbo feudal : we call him more vsually a tenent in fee : whereof some owe fidelitie and seruice , and are called vassalli iurati : some that owe neither , and are called vassalli iniurati . but of this later sort , i thinke that in england we haue not any . of these thus writeth hotoman in his disputations vpon the feuds , cap. . propriè is vassa dicitur , qui ab imperatore regale feudum accepit , vassallus autem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 diminutivo nomine qui ab illo feudale beneficium adeptus est : quasi qui in vassi fide & clientela est &c. m. skene de verbor . signif . verb. ligentia , saith , that vassallus is diuided into homologum , & non homologum . homologus is he that sweareth seruice with exception of a higher lord : and non homologus , is he that sweareth with out exception , all one with ligeus . and the same author verb. vassallus , saith , that it is vassallus , quasibassallus , id est , inferior soctus . from the french ( bas . i. humilis , dimissus ) and the dutch word ( gesel . i. socius : ) his reason is , because the vassall is inferior to his master , and must serue and reuerence him : and yet he is in maner his companion , because each of them is obliged one to the other . he saith farder out of cuiacius , lib. prim . de feud . that leades , leodes , fideles , homines nostri , feudatarii , ministeriales , beneficiarii , beneficiati , vassalli , signifie almost all one thing . and a litle after he saith thus : in the lawes of the feuds , vassallus is called fidelis , quia fidelitatem iurat . amongst vassals the first place of dignitie is giuen to them , that are duces , marchion●s , comites , and are called cap●tanti regni . the second is granted to barons and others of like estate , and are called valvasores maiores . the third to them who are called gentlemen or nobles holding of barons , which also may haue vnder them vassals that be gentlemen . and such vassals holding in chiefe of barons , are called valv aso●ts minores . and they which hold of gentlemen , are called vassalli , valvassini , seu minimi valvasores . but in this realm ( he speaketh of scotland ) they that hold of barons , are called milites , and they that hold of them , are called subvassores . thus fa●e m. skene . vasto , is a writ that lyeth for the heire against the tenent for terme of life or of yeares , for making waste , or for him in the reuersion or remainder . fitzh . 〈◊〉 . br . fol. . regist . orig . fol. . & . and regist . iudic. fol. . . . & . v. anno . ed. pricap . . vavasour ( vavasor , aliâs , valvasor ) is one that in dignitie is next vnto baron . camden britan. pag. . bracton lib. prim . cap. saith thus of this kind of men . sunt & alii potentes sub rege , qui dicuntur barones , hoc est , robur belli : sunt & alii qui dicuntur vavasores , viri magnae dignitatis . vavasor enim , nihil meliùs dici poterit , quàm vas sortitum ad valetudinem . iacobutius de franchis in praeludio feudorum . tit . prim . num . . &c. calleth them valvasores , and giueth this reason of it : quia assident valva i. portae domini in festis , in quibus consueueruat homines curtizare & eis reuerentiam exhibere , propter beneficium eis collatum , sicut libertus patrono : m. camden . in his britan. pag. . hath these words of them . primus etiam normannorum temporibus , & thani proximi à comitibus in dignitate censebantur . et valvasores maiores ( si illis qui de feudis scribunt credimus ) iidem fuerunt barones . venditioni exponas , is a writ iudiciall , directed to the vndershyreeue , commaunding him to sell goods that he hath formerly by commaundement taken into his hands , for the satisfying of a iudgement giuen in the kings court. register iudicial . fol. . b. venire facias , is a writ iudicall , and goeth out of the record , lying where two parties plead and come to issue . sc : vpon the saying of the country . for then the party plaintiffe , or defendant shall haue this writ directed to the shyreeue , that he cause to come twelue lawfull men of the same country , to say the truth vpon the sayd issue taken . and if the enquest come not at the day of this writ returned , then shall goe a habeas corpora , and after a distresse vntill they come . old . nat . br . fol. . see how diuersly this writ is vsed in the table of the register iudiciall . there is also a writ of this name , that is originall , as appeareth in the register orig . fol. . b. which m. lamberd in his processes annexed to his eirenarcha saith to be the common proces vpon any presentment not being felony , nor especially appointed for the fault presented by statute . whereof he setteth downe an example in the same place . see also the new booke of entries . verbo enquest fol. . columna . . . & . venire facias tot matronas . see ventre inspiciendo . see lamb. eirenarcha , li. . ca. . pa. . venew ( vicinetum ) is taken for a neighbour or neare place . as for example twelue of the assise ought to be of the same venew where the demaund is made . old . nat . br . fol. . and in the statute anno . h. . ca. . & anno . h. . ca. . i finde these words : and also shall returne in euery such panell vpon the ( venire facias ) sixe sufficient hundreders at the least , if there be so many within the hundred , where the venew lyeth . ventre inspiciendo , is a writ for the search of a woman that faith shee is with childe , and thereby withhouldeth land from him that is the next heire at the common law . register originall fol. . a. verdour ( viridarius ) commeth of the french ( verdior . i. saltuarius , vel custos nemoris ) he is ( as m. manwood parte pri : of his forest lawes pag. . defineth him ) a iudiciall officer of the kings forest , chosen by the king , in the full county of the same shire , within the forest , where he doth dwell , and is sworne to maintaine , and keepe the assises of the forest , and also to view , receiue , and inrolle , the attachments and presentments of all maner of trespasses of the forest of vert , and venison . and the same authour vpon the first artitle of canutus charter , in the beginning of the same part , saith , that these in the saxons times were called ( pagened ) being foure in number , and they chiefe men of the forest as then they were . their fee was in canutus time , each of them euery yeare of the kings allowance , two horses , one of them with a saddle , another of them without a saddle , one sword , fiue iauelins , one speare , one shield , and ten pounds in money . these foure ( as appeareth by the said charter , nu . . ) had regalem potestatem , and might proceede to a threefold iudgement : and if any man offered them , or any of them violence , if he were a free man , he should loose his freedome , and all that he had : if a villein , he should loose his right hand . all the officers of the forest were to be corrected and punished by them . ibidem , nu . . the verdour is made by the kings writ . cromptons iurisd : fol : . the forme of which writ you haue in fitzh . nat . br . fol. . which is directed to the shyreeue for the choice of him in a full county , by the assent of the said county . yet if a verdour bee sodainely sicke or dead at the time of the iustice seate , a new may be chosen without a writ . manwood parie prim . pag. . the office is ( as crompton saith ) loco allegato ) properly to looke to the vert , and to see that it be wel maintained . also when any forfeiture is taken in the forest before the foristers , or other ministers : the price thereof shall be deliuered to the verdour , who is to answer for it before the iustices in eyre . and if he die , his heire is chargeable therewith . crompton ibidem . the forme of his oath at his admittance you may see in manwoods first part of his forest lawes . pag. . who there calleth him verderour , aliâs , verdictor . you shall truly serue our soueraigne lord the king in the office of a verderor of the forest w. you shall to the vttermost of your power , and knowledge , do for the profit of the king , so farre as it doth apperteine vnto you to do . you shall preserue and maintaine the auncient rights and franchises of his crowne : you shall not conceale from his maiestie any rights or priuiledges , nor any offence either in vert or venison , or any other thing . you shall not withdraw , nor abridge any defaults , but shal endeuour your selfe to manifest and redresse the same , and if you cannot doe that of your selfe , you shall giue knowledge thereof vnto the king , or vnto his iustice of the forest . you shall deale indifferently with all the kings liege people : you shall execute the lawes of the forest , and do equall right and iustice , as well vnto the poore , as vnto the rich in that appertaineth vnto your office : you shall not oppresse any person by colour thereof , for any reward , fauour or malice . all these things you shall to the vttermost of your power obserue and keepe . their office is farder expressed , eodem pag. . which is to sit in the court of attachment , to see the attachments of the forest , to receiue the same of the foresters and woodwards , that do present them , and then to enter these attachments into their rolles . verdict , ( veredictum ) is the answer of a iurie or enquest made vpon any cause ciuill or criminall , committed by the court to their consideration or triall . and this verdict is two-fold : either generall or especiall . stawnf . pl. cor . lib. . cap. . a general verdict is that , which is giuen or brought into the court , in like generall termes to the generall issue : as in an action of disseisin the desendant pleadeth , no wrong , no disseisin . then the issue is this in generall , whether the fact in question be a wrong or not . and this committed to the iurie , they vpon consideration of their euidence , come in and say , either for the plaintiffe , that it is a wrong , and disseisin : or for the defendant , that it is no wrong , no disseisin . and againe , the prisoner at the barre pleading , not guiltie : the enquest in like generall termes bring in their verdict , either for the king , cuilty , or for the prisoner , not guilty . a speciall verdict is that , whereby they say at large , that such a thing , and such , they find to be done by the defendant , or tenent , so declaring the course of the fact , as in their opinions it is proued : and for the qualitie of the fact , they pray the discretion of the court. and this speciall verdict , if it containe any ample declaration of the cause , from the beginning to the end , is also called a verdict at large . whereof reade diuers examples in stawnf . pl. cor . lib. . cap. . and one or two in litleton . fol. . & . see the new booke of entries , verb. verdict . verge ( virgata ) may seeme to come from the french ( verger i. viridarium , hortus . ) it is vsed here in england for the compasse about the kings court , that boundeth the iurisdiction of the lord steward of the kings houshold , and of the the coroner of the kings house , and that seemeth to haue bene . miles compasse . anno . r. . stat. prim . cap. . & fitz. nat . br . fol. . b. and britton . fol. b. . a. and fleta lib. . cap. . and sir edward cookes reports . li. . fol. . a. for this see the statute anno . h. . cap. . toward the end . but fleta saith , that this compasse about the court is called virgata , a virga , quam marishallus portat vt signū suae potestatis . lib. . cap. . § . prim . verge hath also another signification , and is vsed for a sticke , or rodde , whereby one is admitted tenent , and holding it in his hand sweareth fealtie vnto the lord of a maner : who for that cause is called tenent by the verge . old nat . br . fol. . vergers , ( virgatores ) be such as cary white wands before the iustices of either banke , &c. fleta lib. . cap. . otherwise called porters of the verge . very lord , and very tenent ( verus dominus , & verus tenens ) are they that be immediate lord & tenent one to the other ; brooke . titulo , hariot . fol. . in the old nat . br . and in the writ ( replegiare de averits . fol. . i find these words : and know ye that in taking of leases , six things are necessarie : that is to say , very lord and very tenent , seruice behind , the day of the taking , seisin of the seruices , and within his fee. and know ye , that a man is not very tenent , vntill he haue atturned to the lord by some seruices . so that by brooke , the very lord , and the very tenent , must be immediate , and by this booke there must be an acknowledgement . see an . . h. . cap. . see tenent . vert , ( viride ) is made of the french ( verd . i. viridis ) and signifieth with vs in the lawes of the forest , euery thing that doth growe , and beare greene leafe , within the forest , that may couer and hide a deere . manwood in the second part of his forest lawes , fol. . a. and fol. . b. ( with whom also crompton agreeth , fol. . of his iurisd . ) and vert ( as the same author saith , eodem , fol. . ) is diuided into ouer vert , and neather vert . ouer vert , is that , which the lawyers call ( hault bois ) and neather vert , is that which they cal ( south bois . ) and of this you may reade him in his second part of forest lawes . cap. . per totum . where you shall find , that he diuideth vert into generall , and speciall : generall is , as it is aboue defined : vert speciall , is euery tree and bush within the forest to feed the deere withall : as peare trees , crabtrees , hauthornes , blackbush , and such like . and the reason of this name is , because the offence of destroying of such vert , is more highly punished , then of any other , according to the quantity thereof . eod ca. . nu . . fol. . a. vervise , otherwise called plonkets . anno . . r. . cap. . a kind of clothe . vesses . anno . r. . cap. . & anno . & . h. . cap. . otherwise called , set clothes . vesture ( vestitura ) is a french word signifying a garment : but in the vse of our common lawe , turned metaphorically to betoken a possession , or an admittance to a possession . so it is taken , westm . . c. . anno . ed. prim . and in this signification is it borowed from the feudists , with whom ( investitura ) signifieth a deliuerie of possession by a speare , or staffe , and vestitura , possession it selfe . hotoman . in verbis feudal . verbo investitura . vesture of an acre of land . an . . ed. prim . stat . prim . is the profit of it . & anno . edvard . . cap. . vice-treasurer of the exchequer . iacob . . see vnder-treasurer of england . see treasurer of the exchequer . view of frank pledge , ( visus franci plegii ) is the office which the shyrecue in his countie court , or the bayliffe in his hundred , performeth in looking to the kings peace , and seeing that euery free man be in some pledge . this is called of bracton li. . ca. . nu . . in fine , res quasi sacra , quia solam personam regis respicit , & quòd introductus sit pro pace & communi vtilitate . codem , ca. . nu . . in fine . see frank pledge , and leete , and decennier . see the new booke of entries . verb : view of frank pledge . veiours ( visores ) commeth of the french ( veoyr . i. cernere , intueri , despicere , prospicere , videre ) and signifieth in our common lawe those , that are sent by the court to take view of any place in question , for the beter descision of the right : old . nat . br . fol. . so doth bracton , vse it , lib. . tract . . cap. . per totum . it signifieth also those , that are sent to view such as essoine themselues de malo lecti , whether they be in truth so sicke , as they cannot appeare , or whether they counterfeit . bracton lib. . tracta . . cap. . & cap. . per totum . lastly it is vsed for those that are sent or appointed to view an offence , as a man murdered , or a virgin rauished . see view . vicario deliberando occasione cuinsdam recognitionis , &c. is a writ that lyeth for a spirituall person imprisoned vpon forfeiture of a recognisance , without the kings writ . reg. orig . fol. . see statuto mercatorio contra personam ecclesiasticam . vicis & venellis mundandis , is a writ that lyeth for a maior and bayliffes of a towne , &c. for the cleane keeping of their streets . register orig . fol. . b. view ( visus ) commeth of the french ( veue . i. visus , aspectus , conspectus , prospectus ) and signifieth with vs , the act of viewers . for ( as the author of the termes of lawe saith ) when any action reall is brought , and the tenent knoweth not well what land it is , that the demandant asketh , then he may pray the view : that is to say , that he may see the land , which is claimed : of this britton speaketh , cap. . this point of proceeding we haue receiued from the normans , as it appeareth by the grand custumarie . cap. . where you shall reade to this effect . it is to be knowne that there bee diuers sorts of viewes : one of a fee , another of a man in sicknes , another of an offence , as of a man slaine , or of a virgin deflowred : all which he describeth in that place , and againe , cap. . & . which are worth the reading : this view at this day is vsed in an assise of rent seruice , rent charge , or rent seck . fitzh . nat . br . fol. . d. and in a writ de curiā claudenda . idem , fol. . b. in a writ of nusance . idem , fol. . l. n. o. in a writ quoiure . idem . fol. . l. in the writ de rationalibus diuisis . idem . fol. . d. and in the writ de secta ad moliendinum . idēf . . b. see the new booke of entries : verbo : view . and see fleta how this view is made . lib. . ca. . see veiours . vicechamberlaine , called vnderchamberlaine anno . r. . stat . . cap. . is a great officer in court next vnder the lord chamberlaine , and in his absence , hath the command and controlmēt of all officers superior & inferior whatsoeuer , appertaining to that part of his maiesties houshold , which is called the chamber , wherein is included as well the bedde chamber , as the priuy chamber , the presence and the great chamber , and all other roomes , as galeries , &c. thereto belonging , with the councell chamber , priuic closet , &c. and in the lord chamberlaines absence he keepeth his table in the great chamber , commanding and overseeing the attendance of all , to whome it appertaineth to be ready and waiting on his maiestie going to the chapell , or to speake with ambassadours , or els walking or riding forth . vicount , aliâs viscount ( vicecomes ) commeth of the french ( vicompte . i. procomes ) and signifieth with vs as much as shyreeue . betweene which two words i finde no other difference , but that the one commeth from our conquerours the normans , and the other from our auncesters the saxons , wherefore see more of this in shyreeue . vicount also signifieth a degree of nobility next vnto an earle , which ( as m. cam. brita . p. . saith ) is an old name of office , but a newe one of dignitie , neuer heard of amongst vs , vntill henry the sixth his daies . but this degree of honour is more auncient farre in other countries . cassan in gloria mundi , parte . consid . . whome you may reade . vicountie , is an adiectiue made of vicountiè , and signifieth as much , as belōging to the vicount ; as writs vicountiel are such writs as are triable in the countie or shyreeues court . old . nat . br . fol. . of this kinde you may see diuers writs of nusance set downe by fitzh . in his nat . br . fol. . b. there be also certaine fermes called vicountiels , which the shyreeue for his time payeth a certaine rent for to the king , and maketh what profit he can of them . see the statutes , anno . & . h. . ca. . & anno . & . ed. . ca. . and anno . h. quint. capite secund . vilaica removenda , is a writ that lyeth for the remooving of forcible possession of a benefice kept by lay men . and this writ is graunted some time vpon the certificate of the bishop into the chauncerie , that there is such a force in his dioces : some time vpon a surmise made there of by the incumbent himselfe , without the certificat of the bishop , and hath a seuerall forme for either case . fitzh . nat . br . fol. . register orig . fol. . & . villanis regis subtractis reducendis , is a writ that heth for the bringing back of the kings bondmen , that haue beene caried away by others out of his maners , wherevnto they belonged , register origin . fol. . b. villein ( villanus ) commeth of the french ( vilain . i. illiberalis , impurus , vilis , turpis ) and signifieth in our common lawe a bondman , or as much as servus among the ciuilians . of these there be two sorts in england , as sir tho. smith saith in his repub . anglo . li. . cap. . one termed a villein in grosse , which is immediately bound to the persons of his lord and his heires , the other a villein regardant to a maner , whome the ciuilians terme ( glebae ascriptitium ) being bound to their lord , as members belonging and annexed to such a maner , whereof the lord is owner . this diuision is affirmed by diuers places of our common lawe writers : as in the old . nat . br . fol. . you haue these words . know ye that a woman shall be indowed with a villein in grosse , &c. and againe . fol. . if a man doe menace or threaten any villeins , which are regardant to a maner , &c. bracton hath another diuision of villeins , which is all one with the ciuilians . for in his first booke , cap. . nu . . he saith thus : serui autem nascuntur aut fiunt , and then thus goeth forward : nascuntur ex nativo & natiua alicuius copulatis vel solutis , sive sub potestate domini constituti sint , sive extra potestatem . item nascitur seruus , qui ex natiua soluta generatur , quamvis ex patre libero : quia sequitur conditionem matris quasi vulgò conceptus , &c. and after diuers things deliuered of this sort , he saith againe thus : fiunt etiam servi liberi homines captivitate de iure gentium : &c. fit etiam servus liber homo pro confessionē in curia regis factam : vt cum liber homo sit in curia regis , & se cognoscat ad villanum . item liber homo fit servus , si cum semel manumissus fuerit , ob ingratitudinem in seruitutem reuocetur . item fit liber homo seruus , cùm ab initio clericus vel monachus factus fuerit , postea ad secularem vitam redierit . quia talis restitus debet domino suo . v. tiraquellum de nobilitate . cap. . pag. . num . . in very many provinces of fraunce there be certaine men called ( homines manus mortuae , qui tanta iuris similitudine adscriptiis colonis coniuncti , & prope iidem videntur . non autem serui sunt omnino , sed in territorio domini sunt , tanquam alligati , non habentes demigrandi potestatem . itaque serui corporis & prosecutionis vulgò dicuntur , quòd si fugerint , potest eos profequi dominus & capere . tributum antem isti & nonnullas commoditates domino praestant : in quibus haec maxima , quod ipsis vita functis sine sobole , succedit dominus vel ex toto vel ex parte . connanus . li. . cap. . num . . whose words i thought not vnfit for this place , because they expresse the nature of our villenage somthing aptly . villein fleeces : anno . ed. . cap. . are fleeces of wolle that are shorne from scabbed sheepe vidimus , anno . h. . ca. . villenage ( villenagium ) commeth of ( villein ) and signifieth a seruile kinde of tenure belonging to lands or tenements ; that is , a tenure of lands or tenements , by such a seruice , as villeins are fittest to performe . for euery one that houldeth in villenage , is not a villein , or a bond man. villenagium vel seruitium nihil detrabit libertatis , habit a tamen distinctione , vtrum tales sint villani , & tenuerint in villano soccagio de dominico domini regis . bracton , lib. pri . ca. . nu . pri . britton in his . chapter speaketh to this effect : villenage is a tenure of the demesns of a lord deliuered to a tenent at the lords will , by villenous seruices , to improoue it to the lords vse , and deliuered by the rodde , and not by any title of writing , or succession of inheritance , &c. and a litle after he hath words to this effect : in the maners of our auncient demesns , there be pure villeins both by blood and tenure : the which may be cast out of their tenement , and depriued of their chatels , at the pleasure of the lord. by which two places i gather , though villein tenure doe not alway make the tenent a villein : yet that there is a two fold tenure called villenage : one wherin both the persō & the tenure is bound , and in all respects at the disposition of the lord : and another , which in respect of the tenure is after a sort seruile , though the person be not bond . this is well proued by bracton , li. . ca. . nu . . in these words . item tenementum non mutat statum liberi , non magis quam serut : poterit enim liber homo tenere purum villenagium , faciendo quicquid ad villanum pertinebit , & nihilo-minus liber erit , cum hoc faciat ratione villenagii , & non personae suae : & ideo poterit , quando volucrit , villenagium deserere , & liber discedere , nisi illaque atus sit per vxorem natiuam ad hoc faciendum . ad quam ingressus fuit in villenagium , & quae praestare poterit impedimentum , &c. so that a man may hould in pure villenage , and yet be a free man in respect of his person . but what is pure villenage ? bracton aunswereth in the words there next following : purum villenagium est , à quo praestatur seruitium incertum & indeterminatum , vbi scirinon poterit vespere , quale seruitium fieri debet mane . viz : vbi quis facere tenetur quicquid ei praeceptum fuerit . the other sort of villenage which is not pure , is there called of bracton ( villanum soccagium ) which differeth from the other in this , because it is onely tyed to the performrnce of certaine seruices agreed vpon betweene the lord and the tenent . whereof see bracton also in the same place : by whom you may perceiue , that a man may hould ( per villanum soccagium ) and yet haue ( liberum tenementum if he haue it to himselfe and his heires . this villanous soccage is to cary the lords dung into his feilds , to plow his ground at certaine daies , sow and reape his corne , plash his hedges , &c. see soccage . villenous iudgement ( villanum iudicium ) is that which casteth the reproch of villeny and shame vpon him against whom it is giuen , as a conspiratour ; &c. stawnf : pl : cor . lib. . . f. . this m. lamb. in his eirenarcha , lib. . ca. . pag. . calleth villenous punishment , and saith that it may well be called infamous , because the iudgement in such a case shal be like the auncient iudgement in attaint ( as it is said anno . h. . fitzh . iudgement . ) and is ( in . lib. assis : pl. . ) set downe to be , that their oathes shall not be of any credit afterward , nor lawfull for them in person to aproch the kings courts : and that their lands and goods be seised into the kings hands , their trees rooted vp , and their bodies imprisoned , &c. and at this day the punishmēt apointed for periury , ( hauing somwhat more in it , then corporall or pecuniary paine ) stretching to the discrediting of the testimony of the offender from euer after , may be partaker of this name . thus farre m. lamberd . virgata terrae . register orig . fol. . a. see yard land . viridario eligendo , is a writ that lyeth for the choice of a verdour in the forest . register orig . fol. . visitation of maners ( visitatio morum ) was wont to be the name of the regarders office in auncient time . manwood , parte pri . of his forest lawes , pag. . see regarder . visne ( vicinetum ) signifieth a neihgbour place , or a place neere at hand anno . r. . ca. . vtsu franciplegū , is a writ to exempt him from comming to the view of frankpledge , that is not within the hundred resident . for men are bound vnto this view by reason of their habitation , and not of lands held where they dwell not , register orig . fol. . vitteller ( victualarius ) commeth of the french , victuailes . i. commeatus ) and signifieth with vs , him that selleth victuals . for these there is a writ in fitz. nat . br . fol. . if they exercise their trade , bearing a magistracie in any towne corporate . vmple . anno . edvard . . cap. . vncore prist , is a plee for the defendant , being siewed for a debt due at a day past , to saue the forfeiture of his bond ; saying , that he tendered the dept at the time , and place , and that there was none to receiue it , and that he is now also readie to pay the same . . ed. . . dyer . see vnquest prist . vncuth , is a saxon word signifying as much as ( incognitus ) it is vsed in the auncient saxon lawes , for him that commeth to an inne guest wise , and lyeth there for two nights at the most . in which case his host was not bound to answer for any offence , that he committed , whereof he was guiltlesse himselfe . but if he laid there the third night , then he was called ( guest , hospes ) and thē must the host answer for him , as for one of his owne familie . and if he taried any longer , then was he called agen hine , that is to say , familiaris . whom , if he offend against the kings peace , his hoste was to see foorth-comming : or if he could not bring him out within a moneth and a day , he must satisfie for his offence . lamberd . archaiono . fol. . num . . of this bracton . lib. . cap. . num . . writeth thus : item secundum antiquam consuetudinem dici paterit de familia alicuius , qui hospitatus fuerit cum alio per tres noctes : quia primâ nocte poterit dici vncuth , secunda verò gust , tertiâ nocte hoghenhine , &c. this law was made for the better preseruation of the kings peace , and to shew in what pledge euery man was to be accompted , that trauelled by the way . see tuainnithes : gest . vnde nihil habet , is a writ . see dote vnde nihil habet . vnder-chamberlaine of the exchequer , is an officer there , that cleaueth the taileys written by the clerke of the taileys , and readeth the same , that the clerke of the pel and the controllers thereof may see their entrie be true . he also maketh searches for all roords in the treasurie . there be two officers there of this name . vnderescheateur . subescheatour . anno . ed. . cap. . see escheatour . vndershyreeue , ( subvicecomes ) see shyreeue . vndersitter is an inmate . see inmate . vndertakers , be such as are employed by pourueyours of the king as their deputies . anno . & . phil. & mar. cap. . and such as vndertake any great worke , as drying of fennes , &c. anno . eliz. cap. . vnder-treasurer of england , ( viccthesaurarius angliae ) anno . el. cap. . & anno . eiusdem . subsidie of the clergie . this officer ( as some exchequer men thinke ) was first created in the time of king h. the seuenth , to chest vp the kings treasure at the end of euery terme , and to note the content of money in each chest , and to see it caried to the kings treasurie in the tower , for the ease of the lord treasurer , as being a thing too meane for him to be troubled with , and yet meete to be performed by a man of great secrecie and trust . he in the vacancie of the lord treasurers office , doth all things in the receipt , that the lord treasurer doth . he nominateth the two praysers of all goods seised as not customed , and ordereth , whether the partie shall haue them at the price or not . he appointeth the steward , cooke , and butler for the prouision of the starre-chamber . but this officer in other mens iudgment , is farre more auncient then henry the seuenths dayes , yet named treasurer of the exchequer in the statutes vntill queene elizabeths time , where he is tearmed vnder-treasurer of england . neuerthelesse , anno eliz. he is also written treasurer of the exchequer . read the statutes , anno . ed. . stat . . cap. . & . eiusdem . stat. . cap. . . rich. . cap. . . hen. . cap. . . h. . cap. . . h. . cap. . with diuers other places , that seeme to approue this to be true . vnion ( vnio ) is a combining or consolidation of two churches in one , which is done by the consent of the bishop , the patron , and the incumbent . and this is properly called an vnion . howbeit , that there be two other sortes : as when one church is made subiect to the other , and when one man is made prelate of both , and when a conuentual is made cathedrall , as you may reade in the glosse of the chapter , licet . de locato & conducto , in lyndwoods prouincials . § . et quia . versu appropriationis . touching vnion in the first signification there was a statute , an . . h. . cap. . that it should be lawfull in two churches , wherof the value of the one is not aboue sixe pounds in the kings bookes of the first fruites , and not aboue one mile distant from the other . vnion in this signification is personall , that is , for the life of the incumbent : or reall , that is , perpetuall , whosoeuer be incumbent . vnitie of possession , is called consolidatio vsus fructus , & proprietatis in the ciuill lawe , signifying a ioynt possession of two rights by seuerall titles . for example , i take a lease of land from one vpon a certaine rent : afterward i buy the fee-simple . this is an vnitie of possession , wherby the lease is extinguished : by reason that i , which had before the occupation only for my rent , am become lord of the same , and am to pay my rent to none , but my selfe . also an abbot being seated within a certaine parish , afterward obtaineth an appropriation of the tythes belonging to that church , for the vse of his house . here is an vnity of possession , by reason that the tythes , which before were to be paid to the incumbēt , are now to be paid to none but himselfe , by vertue of the appropriation . vniversitie , ( vniuersitas ) is by the ciuill lawe any bodie politicke , or corporation : but in our language it is ( at the least most ordinarily ) taken for those two bodies , that are the nourishes of learning , and the liberall sciences , cambridge and oxford : endowed with great fauours , and priuiledges , for their beter maintenance , as appeareth not onely by an . . & . ph. & mar. c. . a. . el. c. . & a. . eius . c. . but much more by their seuerall charters , graunted vnto them by diuers godly and magnanimous kings of this land . vnlawfull assembly , ( illicita congregatio , illicita assemblata ) is the meeting of three or more persons together , with force to commit some vnlawfull act , and abiding stil , not indeuouring the execution thereof , as to assault or beate any person , to enter into his house or land , &c. west . parte . symb . titulo , inditements , sect . . m. lam. in his eirenarcha . cap. . saith thus : an vnlawfull assembly is the companie of three persons or more , gathered together , to do such an vnlawfull act , although they do it not indeed . so saith kitchin in effect , fol. . vnques prist , is ( word for word ) alwaies readie . and it signifieth a plee , whereby a man professeth himselfe alway ready to do or performe that , which the demaundant requireth , therby to auoide charges . for example : a woman sieweth the tenent for her dower : and he cōming in at the first day , offereth to auerre , that he was alway ready and still is , to performe it . in this case except the demaundant will auerre the contrarie , he shall recouer no dammages . when this plee will serue to auoide charges , and when not , see kit. fol. . see vncore prist . voydance ( vacatio ) is a want of an incumbent vpon a benefice : and this voydance is double : either in law , as when a man hath more benefices incōpetible : or indeed , as when the incumbēt is dead , or actually depriued . brooke , titulo quareimpedit . n. . voucher ( aduocatio ) is a calling in of one into the court at the petition of a party that hopeth to be helped thereby . new booke of entries . verbo . voucher . voucher de garantie brit. ca. . in latine ( aduocatio ad war antizandum ) is a petition in court made by the defendant to haue him called , of whom he or his auncester bought the land or tenement in question , and receiued warranty for the secure inioying thereof against all men . britton of this writeth a long chapter . vbi supra , intituling it garant voucher . but bracton writeth a large tractate of it , lib. . tracta . . per totum . litleton also handleth it not minsingly , in the last chapter of all his tenures . of this you may read fitzh . also in his nat . br . fol. . de warantia chartae . all this law seemeth to haue bene brought into england out of normandy . for in the grand custumary you haue likewise a chapter intituled ( vouchement de garant , cap. . id est , vocamentum garanti ) where it is set downe , what time ought to be giuen , for the appearance of the warrant called in this case , how many warrants may be vouched , one calling in another , and diuers other points touching this doctrine . all which , and many more , you may read in bracton vbi supra . a common voucher , a double voucher . coke lib. . sir hughe . cholmleis case , fol. . b. this is very aunswerable to the contract in the ciuill lawe , whereby the buyer bindeth the seller , sometime in the simple value of the thing bought , sometime in the double , to warrant his secure enioying of the thing bought . but this difference i find betweene the ciuill lawe and ours , that whereas the ciuill lawe bindeth euery man to warrant the securitie of that which hee selleth , ours doth not so , except it be especially couenanted . the party that voucheth in this case , is called the tenent , the partie vouched is tearmed the vouchee . the writ whereby he is called , is termed summoneas ad warrantizandum . and if the shyreeue return vpō that writ , that the party hath nothing , whereby he may be summoned : then goeth out another writ . viz. sequntur sub suo periculo . see termes of the lawe . verbo voucher . and lamb. in his explication of saxon wordes , verbo advocare . see warrantie . i reade in the new booke of entries , of a forain voucher , which hath place properly in some franchise , countie palatine , or other where one voucheth to warrantie one not dwelling within the franchise . fol. . columna . . whereupon because the foreyner neede not be tryed in that court , the record and cause is remooued to the common plees , &c. see of this fitz. nat . br . fol. . e. vser de action , is the persiewing or bringing of an action , which in what place and countie it ought to be , see brooke , titulo lieu & countie . fol. . vse ( vsus ) is in the originall signification , plaine enough : but it hath a proper application in our common lawe , and that is the profit or benefit of lands or tenements . and out of m. wests first parte of his simbol : lib. pri sect . . . . . and . i gather shortly thus much for this purpose . euery deede in writing hath to be considered the substance , and the adiuncts . touching the substance , a deede doth consist of two principall parts , namely the premisses and the consequents . the premisses is the former parte thereof , and is commonly saide to be all that , which preceedeth the ( habendum ) or limitation of the estate , which be the persons contracting , and the things contracted . the consequent is that which foloweth the premisses , & that is the ( habendum ) in which are two limitations : the one of the estate , or propertie , that the party passiue shall receiue by the deede , the other of the vse : which is to expresse in the said ( habendum ) to or for what vse , and benefite he shall haue the same estate . and of the limitation of those vses , you may read many presidents set downe by the same author in his second booke of his saide first part , sectio . . and so forth to . these vses were inuented vpon the statute called , west . . or quia emptores terrarum , before the which statute no vses were knowne . perkins . devises . . and because mens wits , had in time devised many deceits , by the setling of the possession in one man and the vse in another , there was a statute made , anno , . h. . ca. . wherby it was inacted , that the vse and possesssion of lands and possessions should alway stand vnited . new expositour of lawe termes , verbo . vse . v. coke lib. . chudleise case . fol. . & seqq . vsher ( ostiarius ) commeth of the french ( huissier . i. accensus , apparitor , ianitor ) it signifieth with vs first an officer in the eschequer : of which sort there be foure ordinarie vshers that attend the cheife officers and barons of the court at westminster , and iuries , shyreeues and all other accoumptants at the pleasure of the court . therbe also vshers in the kings house , as of the priuy chāber , &c. vtas ( octavae ) is the eight day following any terme or feast : as the vtas of sainct michaell , the vtas of sainct hilary , the vtas of sainct martine , of sainct iohn baptist , of the trinitie &c. as you may reade . anno . h. . stat . concerning generall daies in the benche . and any day betweene the feast and the eighth day , is saide to be within the vtas . the vse of this is in the returne of writs , as appeareth by the same statute . vtfangthef , is an auncient royaltie graunted to a lord of a maner , by the king which giueth him the punishment of a theefe dwelling out of his liberty , and hauing committed theft without the same , if he be taken within his fee. bracton . lib. . cap. . who in his third booke , tract . , ca. . seemeth rather to interpret the word , then to expresse the effect , and saith thus . vtfangthef dicitur extraneus latro , veniens aliunde de terra aliena , & qui captus fuit in terra insius , qui tales habet libertates . it seemeth to be compounded of these three words . vt , fang , thef . which in our moderne english be , oute , take or taken , theefe . of this fleta hath these words . vtfangenthef dicitur latro extraneus veniens a liunde de terra aliena , & qui captus fuerie in terra ipsius qui tales habet libertates . sed non sequitur quod possit ille hominem suum proprium extra libertatem suam captum reducere vsque in libertatem , & ibi eum iudicare : reducere tamen poterit indicatum , & iudicium in proprio patibulo exequiratione libertatis : commodum tamen non video . debet enim quilibet iuri subiacere , vbi deliquit : proprios tamen latrones & alienos iudicare possunt , dum tamen infra libertatem fuerint capti , &c. vtlaghe , significat bannitum extra legem . fleta . li. . cap. . see vtlawrie . vtlagato capiendo quando vtlagatur in vno comitatu , & postea fugit in alium , is a writ , the nature whereof is sufficiently expressed in the words set downe for the name thereof . see the register originall , fo . . vtlawrie ( vtlagaria , aliâs vtlagatio ) is a punishment for such as being called into lawe , and lawfully sought , doe comtēptuously refuse to appeare . and as bracton saith li. . tract . . ca. . he that is siewed must be sought , and called at . counties , a moneth being betweene euery countie , to answer to the lawe . and if he come not within that time , pro exlege tenebitur cum principi non obediat , nec legi : & ex tunc vtlagabitur : that is , as the author of the termes of lawe saith , he shal be pronounced by the coroner , to be out of the kings protection , and depriued of the benefit of the lawe . the effect of this is diuers ( as the same author saith ) . for if he be outlawed in an action personall , ( he meaneth ) at the suite of another in a ciuile cause : he shall forfeit all his goods and cattells to the king : if vpon felonie then he shall forfeit all his lands and tenements , that he hath in fee simple , or for terme of his life , and his goods and cattles . bracton : vbi supra , nu . . saith , that such as be out-lawed vpon felonie , ex tunc gerunt caput lupinum , ita quod sine iudiciali inquisitiene ritè pereant , & secum suum iudicium portent & meritò sine lege pereunt , qui secundum legem viuere recusarunt . et haec ita , si cum capiendi fuerint , fugiant , vel se defendant si autem vivi capti fuerint , vel se reddiderint , vita illorum & mors erit in manu domini regis . see horns mirrour of iustices , lib. . cap. des fautes punishables . bracton saith in the place aboue specified ( with whome also fleta agreeth , lib. . cap. . ) that a minor or a woman cannot be outlawed . but take his owne words : minor verò , & qui infra aetatem . . annorum fuerit , vtlagarinon potest , nec extra legem poni , quia ante talem aetatem non est sub lege aliqua , nec in decenna , non magis quàm foemina , quae vtlagari non potest , quia ipsa non est sub lege . i. inlaugh anglicè , sc : in frāco plegio , sive decenna : sicut masculus , . annorum , & vlteriùs . et ideo non potest vtlagari . waiviari tamen bene potest , & pro derelicta haberi , cum pro felonia aliqua fugam fecerit siue ceperit . est enim waiuium , quod nullus aduocat , nec princeps eum advocabit , nec tuebitur , cum fuerit rite waiviata : sicut fit de masculo , qui secundum legem terrae ritè fuerit vtlagatus , &c. to the same effect writeth fitz h. in his na . br . fo . . viz ; and because women be not sworne in leetes to the king , as men be of the age of yeares or vpward : it is said , when a woman is outlawed , that shee is waiued , but not out-lawed . for shee was neuer vnder the law , nor sworne vnto it . more of this you may reade in bracton , lib. . tracta . . cap . & . . and then in the . how an outlaw is inlawed againe , and restored to the kings peace and protection . see also fleta , lib. . cap. . per totum . virum . see assise . viter baristers , be such as for their longe study and great industry bestowed vpon the knowledge of the common lawe , be called out of their contemplation to practise , and in the face of the world to take vpon them the protection and defence of clients . these are in other countries called , ( licentiati in iure ) . how be it in modestie they still continue themselues hearers for diuers yeares , like the scholers of pythagoras , that for the first fiue yeres neuer aduentured to reason or discourse openly vpon any point of their masters doctrine , which their silence ( a cohibendo sermone ) was termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as suidas and zenedorus doe report . vtlepe significat escapium latronum . fleta lib. . ca. . w vvage ( vadiare ) proceedeth of the french ( gager . i. dare pignus , pignore certare ) and signifieth in our common lawe the giuing of securitie for the performing of any thing : as to wage lawe , & to wage deliuerance which see before in gage . none wageth lawe against the king. brooke tit . chose in action , num . . the substantiue of this verb is ( wager ) in the latine ( vadium ) which some feudists call ( wadium ) as testifieth hotoman in his commentaries de verbis feudalibus . verbo wadium . see lawe . wainage ( wainagium , aliâs wannagium ) signifieth as much as peculium servorum of the saxon word wouen . i. habitare , & woeuing . i. habitatio . see. gainage . waiue ( waiuiare ) register orig . fol. . a ) is to forsake ( habere pro derelicto ) as the ciuilians terme it . waiviare feudum suum . bracton lib. . cap. . that is to forsake . many of the kings liege people to be outlawed , and many waiued by erroneous proces . anno . h. . ca. . see vtlawrie . to waiue the company of theeues . stawnf . pl. cor . fol. . to waiue his benesit . idem fol. . to waiue the aduantage . idem praerog . fol. . persons attainted or waiued . west . parte . simbol . titulo fines , sect : . d. this word waiued waiuiata properly belongeth to a woman that being siewed in law contemptuously refuseth to appeare , as outlawed doth to a man. registerorig . fo . . b. & . a. the reason whereof see in fitzh . nat . br . fol. . a. see weif . wales ( wallia ) is a part of england , on the west side inhabited by the ofspring of the auncient britons chased thither by the saxons , being called hether by them to assist them against the might of the picts . the reason of the appellation commeth from the saxon ( wealh . . exterus , vel peregrinus ) for so the saxons both called them and held them , though now to the great quiet of this kingdome they be incorporated vnto vs see m. lamb : explication of saxon words . verbo . wallus . walkers , seeme to be those that are otherwise called foresters . crompton in his iurisdictions , fol. . hath these words in effect . there be foresters assigned by the king , which be walkers within a certeine space assigned them to looke vnto . waiuiaria mulieris , is as much as vtlagatio viri . register originall fol. . b. see waiue . wapentake ( wapentakium ) is all one with that , which we call a hundred , as appeareth by bracton , lib. . tract . . ca. pri . nu . pri . in fine . conuocentur ( saith he ) postmodum seruientes & baliui hundredorum , & per ordinem irrotulentur hundredarii , siue wapentakia , & nomina seruientium , quorum quilibet affidabit , quod de quolibet hundredo eliget quatuor milites , qui statim veniant coram iusticiariis ad faciendum preceptum domini regis , & qui statim iurabunt , quòd eligent duodecim milites , vel liberos & legales homines , si milites non inueniantur , &c. m. lamberd in his explication of saxon words , verbo centuria , is of the same minde : and farder saith , that this word is especially vsed at this day in the countries be north the riuer trent . and in the lawes of king edward set forth by him nu . . it is most plaine in these words . et quod angli vocant hundredum , supradicti comitatus vocant wapentakium . but there he nameth some shires of this side trent , as warwick shire , leicester shire , and northhampton-shire . in the words there folowing , there is a reason giuen of this appellation in these words . et non sine causa : cum quis enim accipiebat praefecturam wapentakii , die statuto in loco , vbi consueuerant congregari , omnes maiores contra eum conueniebant , & descendente de equo suo , omnes assurgebant ei . ipse verò , erecta lancea sua , ab omnibus secundum morem foedus accipiebat . omnes enim quotquot vtnissent , cum lanceis suis ipsius hastam tangebant , & ita confirmabant per contractum armorum , pace palam concessa . anglicè enim arma vocantur ( waepun ) & taccare confirmare : quasi armorum confirmatio . vel vt magis expressè secundum linguam anglicanam dicamus , waepentak armorum tactus est ( waepun ) enim arma sonant ( tac ) tactus est . quamobrèm poterit cognosci , quòd hac de causa , totus ille conuentus dicitur ( wapentae ) eò quòd per tactum armorum suorum ad inuicem confoederati sunt . thus farre the booke goeth word for word . with whom fleta agreeth , sauing that fleta saith , that this word is vsed in all counties be north watlinstreete , li. . ca. . § . vniuersimode . take sir tho : smithes opinion also : whose words in his second booke de rep : anglo : ca : . be these : wapentak . i suppose , came of the danes , or peraduenture of the saxons . for that so many townes came by there order then into one place , where was taken a mouster of there armour and weapons : in which place , from them that could not finde sufficient pledges for their good abearing , their weapons were taken away . the statute anno . . henrici . ca. . & anno . h. . cap. . & anno . h. . ca. . t. maketh mention of stainctife wapentake , and frendles wapentake , in crauen in the county of yorke . see roger houeden , parte poster : suorum annalium , fo . . b. wards and liueries ( wardi & liberaturae ) is a court first erected in king henry the eighth his time , and afterward augmented by him with the office of liueries , and therefore called by him ( as now it is ) the court of wards and liueries . the chiefe of this court is called the master of the court , &c. to whom are ioyned the surueiour , atturny , and receiuer of the said court , as his assistants : then as ministers the register , two inferiour atturnies or clerks , and a messenger . ward ( custodia ) is the german word , as ( garde ) is the french. both these be vsed among our common lawyers : the one by those that write in french , the other by those that write in english . wherefore for your farder vnderstanding , see gard and gardein . yet is gard sometime vsed in the englishbookes also : as yeomen of the gard. and also the keeper of one in his minority , is not called a warder but a gardein or gardian . ward hath diuers applications , as a ward in london , latined ( warda ) which is a portion of the city committed to the especiall charge of some one of the . aldermen of the city , in such sort as euery one knoweth his certaine ward assigned vnto him , and hath dwelling within the same compas some one graue citizen for the good gouernment thereof : who is in that respect a deputie to the said alderman , and commonly called the aldermans deputie . of these there be . within the citie , and one without , beside other liberties and the suburbes . stowes suruey of london . also a forest is diuided into wards : manwood , parte prim . of his forest lawes . pag. . lastly , a prison is otherwise called a ward . and the heire of the kings tenent , houlding by knights seruice , or in capite , or of any common person by knights seruice , is called ward , during his nonage . see anno . h. . cap. . warden ( gardianus ) signifieth al one thing with the french ( gardien . ) and therefore of this see more in gardien . but it is the more vsuall word of all that writ in english , for him that hath the keeping or charge of any person or thing by office : as wardens of felowships in london . anno . h. . cap. . warden courts , anno . h. . ca. . warden of the marches , anno h. . cap. . wardens and communaltie of the lanes contributorie to rochester bridge . anno . eliz. cap. . wardens of peace . anno . ed. . cap. . statute northampton . warden of the west marches . camd. brit. pag. . warden of the forest . manwood , parte prim . pag. . & . warden of the aulnage . anno . h. . cap. . chiefe warden of the forest . manwood parte prim . pag. . & . warden of the kings wardrobe . anno h. . statut . quinto . wardens of the tables of the kings exchaunge , anno . ed. . stat . . cap. . & anno . h. . stat . . c. . warden of the rolles of the chauncerie . anno . ed. . cap. . & cap. . warden or clerke of the hamper of the chauncerie . ibid. warden of the kings writs , and records of his common bench , ibid. warden of the kings armour in the tower . anno . ed. . cap. . wardnote ; is a court kept in euery ward in london . anno . h. . cap. . ordinarily called among them , the wardmote court. ward peny , is money to be contributed toward watch and ward . warantie , ( warantia ) commeth of the french ( garantie ) or ( garant ) i. vindex litis : ) which is a word of great antiquitie with the french men , being brought first thither by the francogalli . and thence do they make a latinish verbe , viz. ( guarentare ) vel , vt est in aliis libris , guarentisare . i. causam alterius suscipere , se defensorem profiteri . the feudists also vse this word ( guarentus ) quo significatur is , qui latinis author dicitur , & euictionem praestat . lib. . feud . titulo . § . . the ciuilians haue a stipulation ( habere licere ) whereby is signified a power of perpetuall & quiet possession to be giuen : l. . § final . Π. de action empt . & vend . but this reacheth not so farre as our warrantie . for the seller hereby is bound but to a kind of diligence and care to maintaine the buyer in his possession . for if he be euicted , the buyer is not tyed to recōpence . doctores in l. stipulatio ista , habere licere . Π. de verb. obliga . warrantie signifieth in our common lawe , a promise made in a deed by one man vnto another for himselfe and his heires , to secure him and his heires against all men , for the enioying of any thing agreed of betweene them . and he that maketh this warrantie , is called warrantus by bracton , lib. . cap. . & . the romaines called him auctorem , as hotoman testifieth in his commentarie vpon tullies oration pro aulo caecinna . verbo , cesennius author fundi , whom you may reade more at large . and that which we terme vocationem warranti , the ciuilians call authoris laudationem vel nominationem . eimer pract . cap. . this warranty passeth from the seller to the buyer , from the feoffer to the feoffee , from him that releaseth , to him that is released of an action reall , and such like . and for the forme it passeth in a clause toward the end of a deed in these wordes : et ego verò praefatus i. & haeredes mei praedictas decem acras terrae cum pertinentiis suis praefato h. haeredibus , & assignatis suis contra omnes gentes warrantizabimus in perpetnum per praesentes . west . parte prim . symbol . lib. . titulo feofments . sect . . & . so a release may be with a clause of warrantie . idem , eodem . titulo releases . sect . . there is also a warrant of atturney , whereby a man appointeth another to do some thing in his name , and warranteth his action , west . eod . sect . . and these warrāts of atturney seeme to differ from leters of atturney , because that , whereas leters passe ordinarily vnder the hand and seale of him , that maketh an atturney by them , before any credible witnesses : warrants of atturney be acknowledged before such persons , by such means and in such maner , as fines . west . parte . symbol . titule recoueries . sect . prim . f. see atturney . but these waranties in passing land from one to another , be of greatest consequent , & of more intricate vnderstanding . and therefore of these , diuers haue written at large : as glanvile lib. . per totum . bracton lib. . tract . . per totum . britton . cap. . litleton in the last chapter of his tenures : the forme and effect whereof bracton in his second booke cap. . num . . declareth thus : et ego & haeredes mei warrantizabimus tali & haeredibus suis tantùm , vel tali & haeredibus & assignatis , & haeredibus assignatcrum , vel assignatis assignatorum , & eorum haeredibus , & acquietabimus , & defendemus eis totam terram illam cum pertinentiis ( secundum quod praedictum est ) contra omnes gentes in perpetuum , per praedictum seruitium . per hoc autem quòd dicit ( ego & haeredes mei ) obligat se & haeredes suos ad warrantiam , propinquos , & remotos , praesentes & futuros ei succedentes in infinitum per hoc autem quòd dicit ( warrantizabimus ) suscipit in se obligationem ad defendendum suum tenementum in possessione res datae , & assignatos suos & eorum haeredes , & omnes alios , secundum quod supradictum est , si fortè tenementum datum petatur ab antiquo in dominico . per hoc autem quòd dicit ( acquiet abimus ) obligat se & haeredes suos ad acquietandum , si quis plus petierit seruitis , vel aliud seruitium , quam in charta donationis continetur : per hoc autem quòd dicit ( defendemus ) obligat se & haeredes suos ad defendendum , si quis velit seruitutem ponere rei datae contra formam suae donationis , &c. but the new expounder of law terms saith , that this warranty beginneth two waies : one by deede of law : as if one and his auncesters , haue held land of another and his auncesters , time out of minde byhomage ( which is called homage auncestrell ) for in this case , the homage cōtinually performed by the tenent is sufficient to bind the lord to warrant his estate . the other is by deede of the party , which by deede or fine tyeth himselfe to warrant the land or tenement to the tenent . and sir ed : cooke in the fourth booke of his reports , mentioneth the same distinction . nokes case , fo . . a. calling the one a warranty in law , the other an expresse warranty . ciuilians would call these species , tacitam & expressam . warranty ( as the said author of the terms of law saith , is in two maners : warranty lineall , and warranty collaterall . but ( litleton saith vbi supra ) it is threefold : warranty lineall , warranty collaterall , and warranty that beginneth by disseisin . warranty by disseisin what it is , is partly declared in sir ed. cookes reports , li. . fermors case , fol. . a. whether of them deuideth more aptly , let the learned iudge . for my part , i thinke that lineall and collaterall be no essentiall disserences of warranty , as it is originally considered in the first warranter . for he bindeth himselfe and his heires in generall . and such be bound , be they lineall or collaterall vnto him . therefore this diuision riseth rather from the euent of the originall warranty : videlicet , because it so falleth out , that the tenent , to whom the warranty was made , or his heires , when he or they be called into question for the land warranted formerly by the first feoffour , is driuen by the meanes of the first warranters death , to cal or vouch him to waranty that is his heire , and now presently liuing , be he descending or collaterall , as it falleth out . for example . a. infeoffeth b. in twenty acres land , with clause of warranty against all men . so long as a. himselfe liueth , he is liable to this couenant , and none els : after his discease his heire is subiect vnto it , be he his sonne , brother , vncle , or what els . and whether of these , or neither of these it will be , none knoweth vntill he be dead . wherefore i conclude that this distinction of lineall or collaterall hath no vse originally in this contract . for ( as the author of the terms of law saith ) the burden of this warranty , after the death of the first warranter , falleth vpon him , vpon whom the land should haue descended , if the warranty had not bene made . and that is the next of blood to the warranter , be he in the defcending or collaterall line . and therefore i resolue that this distinction groweth from an euent , after the death of him that couenanteth to warrant . but to make this plaine , i finde warranty to be vsed equiuocally : signifiing in one sort , the contract , or couenant of warranty first made , as appeareth by bracton in the place formerly noted : and in another sort the very effect and performance of this contract , either by the warranter or his heires , when he or they be by the tenent thereunto vouched , or called : as also i shew out of bracton , lib. . tract . . ca. pri . nu . . in these words . imprimis videndum est quid sit warrantizatio . et sciendum quod warrantizare , nihil aliud est , quàm defendere & acquietare tenentem , qui warrantum vocabit in seisina sua , &c. with whom agreeth fleta saying that warrantiz are nihil aliud est , quam possidentem defendere , li. . ca. . § . . & lib. . ca. . quod lege per totum . and the former diuision of lineall and collaterall warranty , rather belongeth to warranty in this second signification then the former . and that this way it is imperfect or at the least obscure , i thinke it not hard to declare . first to shew this i note out of bracton , who may be called to warrantie . and he lib. . tractat . . cap. pri . num . . saith thus : videndum est quis vocari possit ad warrantum , & sciendum , quod tam masculus quam foemina , tam minor quàm maior ( dum tamen si minor vocetur , remane at placitum de warantia in suspenso vsque ad aetatem , nisi causa fuerit ita fauorabilis , quòd aetas expectari non debeat ; sicut ex causa dotis ) item non solum vocandus est ad warantum ille qui dedit , vel venddit : verùm etiam vocandi sunt eorum haeredes descendentes in infinitum propter verba in chartis contenta , ( ego & haeredes mei warantizabimus tali & haeredibus suis , &c. ) et in quo casu tenentur haeredes warantizare , sive sint propinqui , sive remoti , remotiores , vel remotissimi . et quod de haeredibus dicitur , idem dici poterit de assignatis , & de illis , qui sunt loco illorum haeredū , sicut sunt capitales domini qui tenentibus suis quasi succedunt , vel propter aliquem defectum , vel propter aliquod delictum , sicut de eschaetis dominorum : by which words we perceiue that the burden of this warrantie is not tyed to heires only , be they in the descending or collaterall line , but that vnder this word ( haeredes ) are comprised all such , as the first warranters lands afterward come vnto either by discent , or otherwise ex causa lucratiua so that if a man haue children , yet if he will , and may giue his land to a straūger , leauing his childrē no land : that straunger in this case is his assigne , & is conteined vnder this word , heire . so if he commit felonie after such warrantie covenanted , and forfeit his lands to his lord by escheate : the lord is quasi haeres in this case , and lyable to the warrantie formerly passed . and in these two later cases , warranty in the secōd signification seemeth to be neither lineall , nor collaterall : at the least as litleton , and the other author haue defined , or by examples expressed them . but yet let vs define these two species , as they be . wherefore lineall warranty is that , which he is called vnto by the tenent , vpon whome the land warranted had descended , if the warranty had not beene couenanted . for example ; a selleth to b. . acres land with clause of warranty , and afterward dieth leauing issue . c. soone after b. is impleaded for this land by d. and voucheth . c. this is called a lineall warranty : because but for it the land had descended from a. to c. warranty collaterall , is that wherevnto he is called by the tenent vpon the couenant of him , from whome the land could not descend to the party called . for example ; b. the sonne pourchaseth tenements in fee , whereof a. his father disseiseth him , and selleth them to c. with a clause of warranty . a being deade , c. is impleaded for the tenements , and calleth b. to warranty . this warranty wherevnto b. is caled , is collaterall : by cause the tenements , if the warrnty had not beene couenanted by a. could not haue descended from him to his father a. for they were his owne by pourchase . many other exāples there be of this in litleton . and this very case he maketh his example of warranty by disseisin , as also of warranty collaterall . which plainly argueth , that warranty by disseisin , and warranty collaterall , are not distinct members of warranty , but may be confounded : though one warranty may cary both names in diuers respects . for there is some warranty collaterall that beginneth not by disseisin . for example . a. tenent in taile , alienateth to b. in fee , and dieth leauing issue . c. afterward . d. brother to a. and vncle to c. releaseth to b. with warranty , and dying leaueth . c. his heire being next of blood vnto him . this warranty is collaterall , because it descendeth vpon . c. from his vncle . d. and yet it beginneth not by desseisin of his said vncle . warranty , hath a double effect : one to debarre him vpō whome it discendeth from the first warranter as his next of blood , from claiming the land warranted : and another to make it good to the tenent , if by him he be vouched thereunto , or els to giue him as much other land by exchange . but as the former of these effects taketh place with all heires , except those to whome the land warranted was intailed , and that reape no equiualent benefit by the first warranter . anno . ed. pri , ca. . soe the latter preiudiceth none that receiueth not sufficient land from the first warranter to make it good . bracton , lib. . tractat . . ca. . nu . pri . & cap. . nu . . in the custumaric of norm . ca. . you haue vouchement degarant , which the interpreter translateth , vocamentum garanti . a voucher or calling of the wartanter into the court to make good his sale or gift . warantiadiei , is a writ lying in case , where a man hauing a day assigned personally to appeare in court to any action wherein he is siewed , is in the meane time by commaundement imployed in the kings seruice , so that he cannot come at the day assigned . this writ is directed to the iustices to this end , that they neither take nor : record him in defaulte for that day . register originall , fol. . of this you may read more in fitzh . nat . br . fol. . and see glanuile , lib. pri . ca. . warantia . chartae . , is a writ that lieth properly for him who is infeoffed in land or tenements with clause of warranty , and is impleaded in an assise or writ of entrie , wherein he cannot vouche or call to warranty : for in this case his remedy is , to take out this writ against the seoffour or his heire . register orig . fol. . fitzh . nat . br : fol. of this you may likewise reade fleta , lib. . ca. . and west parte . simb . titulo fines . sect . . warrantia custodia , is a writ iudiciall , that lyeth for him that is challenged to be ward vnto another , in respect of land said to be houlden in knights seruice , which when it was bought by the auncesters of the ward , was warranted to be free from such thraldome . and it lieth against the warranter and his heires , register iudiciall , fol. . warrant of atturney . see leter of atturney , and waranty . wardwite significat quietantiam misericordia in casu quo non invenerit quis hominem ad wardam faciendam in castra , vel alibi . flet a lib. . cap. . warren ( warrenna , aliâs varrenna ) commeth of the french ( garrenne . . vivarium , vel locus in quo vel aves , vel pisces , vel ferae continentur , quae ad victum di●ntaxat pertinent ) calapine out of aulus gellius . lib. . noct. attica : cap. . a warren ( as we vse it ) is a prescription or graunte from the king to a man of hauing fesants , partridges , connies , and hares , within certaine of his lands , cromptons iurisdict . fol. . where he saith , that none can haue warren , but onely the king , no more then forest or chase . because it is a speciall priuiledge belonging to the king alone . and a little after he hath words to this effect . the king may graunt warren to me in mine owne lands , for fesants and partridges onely . and by this graunt no man may there chase them without my licence . and so of hares , but not of connies . for their property is to destroy the 〈◊〉 of the 〈◊〉 , as to eate corne , and pille the barke of apple trees . m. manwood in his first part of forest lawes , saith thus of it : a warren is a fraunchise or priuiledged place of pleasure , onely for those beasts and foules that are beasts and foules of warren , tantùm campestres & non syluestres . viz. for such beasts and foules as are altogether belonging to the feilds , and not vnto the woods : and for none other beasts or foules . there are but two beasts of warren , that is to say hares and connies : and there are also but two foules of warren , viz. fesants and partridges . and none other wild beasts or birds haue any firme peace , priuiledge , or protection , within the warren . if any person be found to be an offender in any such free warren , he is to be punished for the same by the course of the common law , and by the statute . auno . ed. . called the statute de male factoribus in parcis & chaceis &c. for the most parte there are not officers in a warren , but the master of the game , or the keeper . a free warren is some time in closed , and also the same some time doth lie open . for there is no necessity of inclosing the same , as there is of a park , for if a park be suffered to lie open , it ought to be seised into the kings 〈…〉 manwood . warscot , is the contribution , that was wont to be made towards armour in the saxons time . in canutus his charter of the forest set out by m. manwood in the first part of his forest lawes , num . . you haue these wordes : sint omnes tam primarii quàm mediocres , & minuti , immunes , liberi & quietiab omnibus prouincialibus summonitionibus , & popularibus placitis , quae hundred laghe angli dicunt , & ab omnibus armorum oncribus , quod warscot angli dicunt , & forinsecis querelis . vvarwit , aliâs , vvardwit , is to be quite of giuing money for keeping of watches . new exposition of lawe termes . vvaste ( vastum ) commeth of the french ( gaster . i. populari . it signifieth diuersly in our common lawe , first , a spoile made , either in houses , woods , gardens , orchards , &c. by the tenent for terme of life , or for terme of anothers life , or of yeares , to the preiudice of the heire , or of him in the reuersion or remainder . kitchin fol. . &c. vsque . vpon this committed the writ of waste is brought for the recouerie of the things , whereupon the waste is made . see vasto . vvaste may be also made of tenents or bondmen belonging or 〈◊〉 to the maner . regist . orig . fol. . a. & . a. see the new booke of entries . verbo vvaste . a waste of the forest ( as m. manwood saith , parte prim . of his forest lawes , pag. . ) is most properly where any man doth cut downe his owne woods within the forest , without licence of the king , or of the lord chiefe iustice in eyre of the forest . but it is also , where a man doth plow vp his owne medow or pasture , and conuerterh it vnto tillage . and of this you may reade him at large , in his second part , cap. . num . . & . vvaste in the second signification is taken for those parts of the lords demesns , that be not in any one mans occupation , but lye common for bounds or passages of the lord and tenent from one place to another , and somtimes for all the kings subiects . vvhich seemeth to be called waste , because the lord cannot make such profit of it , as he doth of other of his land , by reason of that vse which others haue of it in passing to and fro . vpon this none may build or feed , or cut downe trees , without the lords licence . vvaste hath a third signification , as yeare , day , and waste . annus , dies , & vastum : which is a punishment or forfeiture belonging to petittreason , or felonle : whereof you may reade seawnf . pl. cor . lib. . cap. . and see yeare , day , and vvaste . vvasters . anno . ed. . cap. see roberds men . see draw latches . vvastell breade ; anno . h. . statute of bread , and statute of pilorie . vvater bayliffes , seeme to bee officers in port townes for the searching of shippes , anno . h. . cap. . watling street , is one of the . waies , which the romaines are said to haue made here in england , and called them consulares , praetorias , militares , publicas . m. camden in his britannia , perswadeth himselfe that there were more of this sort than . this streete is otherwise called werlam streat , ( as the same author saith , and howsoeuer the romains might make it and the rest , the names be from the saxons . and roger houeden saith , it is so called , because the sonnes of wethle made it , leading from the east sea to the west . annal. part . prior . fol. . a. this street leadeth from douer to london , and so to s. albons , and there onward directly toward the north-west through the land , as from donstable to westchester : anno . el. cap. . the second street is called ikenild street , beginning ab icenis , who were the people inhabiting northfolke , southfolke , and cambridge shire , as m. camden declareth , pag. . the third is called tosse : the reason of the name he giueth , because he thinketh it was ditched of each side . the fourth is called ermin street , germanico vocabulo , à mercurio , quem sub nomine irmunsull . i. mercurii columna , germani maiores nostri coluerunt . of these reade more in the said author , pag. . & . in the description of england going vnder saxons name , cap. . i reade that belinus a briton king made these . wayes : whereof the first and greatest he calleth fosse , stretching out of the south into the north , and beginning from the corner of cornwel , and passing soorth by deuonshire , somersetshire , and so along by tetburie vpon toteswould besides couentree vnto lecester , and thence , by the wide plaines to newarke and to lincolne where it endeth . the second he nameth watling street , comming out of the south-east toward the fosse , beginning at dover , and passing through the middle of kent ouer thames beside london nere westminster , and thence to s. albons , by donstable , stratford , towceter , weden , lilborn , atheriston , gilberts hill , now called wreaken , by seuerne , workecester , stratton , and so foorth by the middle of wales , vnto cardican and the irish seas . the third he calleth erminage-street , stretching out of the west north-west into the east south-east , from s. dauids in the west wales vnto southhampton . the fourth he called rikenild street , stretching foorth by worcester , by wicombe , brinningham , litchfield , derby , chesterfield , and by yorke foorth into tynmouth . but he that listeth to reade at large of these wayes , let him haue recourse to the first volume of helinsheds chronicle , and the description of england there , the . chapter . where this antiquitie is farre otherwise declared , then by the former writer . henry of huntington likewise in the first booke of his historie , not farre after the beginning mentioneth these . streetes , terming them calles regia sublimatos authoritate , ne aliquis in eis inimicum invadere auderet , &c. waterbayliffes . anno . h. . cap. . is an officer belonging to the citie of london , which hath the superuison and search of fish , that is brought to that citie , as also the gathering of the tolle rising from that water . he is reckoned an esquier by his office , as the sword-bearer , the huntsman , and the chiefe sergeant is . he also attendeth vpon the lord maior for the time being , and hath the principall care of marshalling the guests at his table . way . see chimin . weife ( wauium ) whence it hath his originall , i cannot certainely say . but i finde the nineteenth chapter of the grand custumary of normandy to be intitled ( de choses gaiues ) and latined by the interpreter ( de rebus vaiuis ) which are there thus defined vaiua sunt res , vel alia , qua nullius proprietati attributa , sixe possessionis reclamatione sunt inuenta , quae vsque ad diem & annum seruanda sunt . et de iis modo , quo dictum est de veriscis , that is ( weeks ) easua esse probantibus est restitutio facienda , &c. this weife or things weiued haue the very same signification in our common law , and be nought but things forsaken . the ciuilians call it ( derelictum ) or ( quod est pro derelicto ) bracton in the twelue chapter of his first booke nu . . reckoneth them inter res quae sunt nullius ea quae pro waiuio habentur : sicut de aueriis , vbi non apparet dominus , where he also saith , quòdo lim fuerunt inuentoris de iure naturali , & iam efficiuntur principis de iure gentium . that this is a regality , and belonging to the king , except it be challenged by the owner within a yeare and a day , it appeareth by britton in his uenthteene chapter . now the kings in their times haue graunted this and such like prerogatiues vnto diuers subiects with their fees . who there likewise saith , that weifes , things lost , and estrayes , must by the lord of the fraunchise where they are found , be caused to be cried and published in markets and churches nere about , or els that the yeare and day doth not runne to the preiudice of him that hath lost them . see waiue . m. skene de verborum signifi . verb. waife , saith , that waife est pecus , vel animal aberrans , which wanders and wauerrs without a knowne master , and being found by any man within his owne bounds , must be by him proclaimed vpon diuers , and sundry market daies , at the parish church , and within the shyreeuedome . otherwise the deteiner may be accused of theft . and it is lawfull for the owner to challenge the beast within a yeare and day . whereby it appeareth , that in scotland that is called a weife which we heere call a stray or estray . weald of kent , is the wooddie part of the countrie . camden britannia , pag. . m. verstegan in his restitution of decayed intelligence saith , that wald , weald , and would differing in vowell , signifie one thing , to wit a forest . see the rest luera . w. wedding ( nuptiae ) commeth of the german ( wed ) . i. pignus . and wedde in scotland signifieth so much at this day . skene de verborum signifi . verbo vadium . weigh ( waga ) is a certaine waight of cheese or wooll , conteining . pounds of avoyr de poyce . see clove . weights ( pondera ) what they be , it is wellknowne . there be . sorts of them in vse with vs. the one called troy weight , which conteineth . ounces in the pound , and no more : by the which , pearl , pretious stones , electuaries , & medicinal things , gould , siluer , and bread be waied : the other is called auer de pois , which conteineth . ounces in the pound . by this all other things are waied , that passe betweene man and man by weight , sauing onely those aboue named . why the one should be called troy weight , i haue not learned . though i reade it termed libram & vnciam troianam : as if it came from troy. but georg. agricola in his learned tractate de ponderibus & mensuris pa. . termeth the pound of . ownces libram medicam , and the other of . ownces libram ciuilem . saying thus of them both : medica & ciuilis libra , numero non grauitate vnciarum differunt . the second seemeth soe to be termed by reason of the more full weight . for ( avoir de pois ) in french , isas much to say , as to haue full weight . but by these words ( avoir de pois ) are some time signified such marchandies as are bought and sould by this kinde of weights . the first statute of yorke anno . ed. . in prooem . & anno . ed. . stat . . ca. . & ann . h. . ca. . of weights in scotland . see skene de verb : signif . verbo serplathe . all our weights and measures haue their first composition from the peny sterling which ought to weigh . wheat corns of a middle sort , twenty of which pence make an ownce and twelue such ownces a pound or twenty shillings , but . ownces make the merchants pound . fleta , li. . ca. . it is not vnlike that this merchants pound , though an ounce lesse , should be all one in signification with the pound of auoir de pois : and the other pound , called by flata trone weight , plainely appeareth to be all one with that which we now call trole weight . and i finde not troie weight mentioned by any other that euer i read vpon this subiect , but onely our owne contry men . see tronage . weights of awncell , anno . . ed. . stat . pri . c. . see auncell weight . were , aliâs werre signifieth as much as ( aestimatio capitis , aut pretiū hominis . m. lam. exp . of saxō words , verbo : aestimatio . that is to say , so much as one paid for killing of a man. whereby he gathereth that slaughters , and such other great offences , were more rarely committed in auncient times , then now : when as for the multitude of offenders , death is most iustly inflicted for those crimes , that then were redressed by pecuniary mulcts . of this see roger houeden , parte poster . suoruns annalium , in henrico . fo . . weregelt thef . significat latronem quire dimi potest . wera enim anglicè idem est in saxonis lingua , vel pretium vitae hominis appraetiatum . fleta lib. . ca. . west saxon lage , aliâs west sexenlage . see lawe . wharfe ( wharfa ) is a broad plaine place neare to a creeke or hithe of the water , to lay wares vpon , that be brought to or from the water to be transported to any other place . new booke of entries , fol. . col . . wharfinger , is the keeper of a wharfe , anno . ed. . ca. . white hart siluer ( candidi cerui argentum ) is a tribute or mulct paid into the eschequer out of the forest of white hart : which ( as m. camden reporteth in his britan. pag. . ) hath continued from henry the thirds time , and was imposed by him vpon thomas de-la-linde , for killing of a most beautifull hart , which himselfe before had purposely spared in hunting . widow ( vidua ) seemeth to come of the french ( vide . i. inanitus , exinanitus ) or the verb ( vuider . i. inaniare ) quasi priuata atque orba marito . macrobius lib. pri . saturn . ca. . draweth it from the hetruscan verb ( iduare . i. diuidere . vnde vidua quasi valde idua . i. valde diuisa : aut vidua . i. a viro diuisa . the signification with vs is apparent . but there is one kinde of widow , called the widow of the king , or the kings widow ( vidua regis ) that requireth exposition . and shee is that widow , which after her husbands death being the kings tenent in capite , is driuen to recouer her dower by a writ de dote assignanda . of whom you may read stawnf : praerog . cap. . the words of the statute of the prarog : made anno . ed. . be these . item assignabit viduis post mortem virorum suorum , qui de co tenuerunt in capite , dotem suam , quae eas contingit , &c : licet haeredes fuerint plenae aetatis , sividuae voluerint . et viduae illae ante assignationens dotis suae praedictae , fiue haeredes plenae aetatis fuerint , siue infra aetatem , iurabunt , quòd se non maritabunt sine licentia regis . tunc rex capiet in manum suam nomine districtionis omnes terras , & tenementa , quae de eo tenentur in dotem , donec satisfecerint ad voluptatem suam : ita quòd ipsa mulier nihil capiet de exitibus , &c. quia per huiusmodi districtiones huiusmodi mulieres , seu viri corum sinem facient regiad voluptatem suam . et illae voluntas tempore regis henrici patris regis edwardi aestimari consueuit ad valentiam praedictae dotis per vnum annum adplus nisi vlteriorem gratiam habuerint . mulieres , quae de rege tenent in capite aliquam haereditatem , iurabunt similiter , cuiuscunque fuerint aetatis , quòd se non maritabunt sine licentia regis . et sifecerint , ●errae & tenementa ipsarum eodent modo ca 〈…〉 tur in manum de●ini regis , 〈…〉 usque satisfecerint ad voluntatem regis . of this see likewise the great charter cap. . whereby it appeareth that other common lords haue the same power ouer their widowes , touching their consent , in their mariage , that the king hath . of this you may read more in the writ de dote assignanda . fitzh . nat . br . fo . . c. see also the statute anno . h. . cap. . windelesor . a herald . see herald . withernam ( vetitum namium ) master lamberd thinketh to be compounded of ( wither . i. altera , siue secundae ) & ( nam . i. pignoris captio ) marueiling much why it should so farre be depraued in the interpretation , as to be translated ( vetitum namium . ) reade him in the explication of saxon wordes , verbo , pignorari . the concord of the thing signified with the meaning of the latine words , maketh some to thinke , that it is compounded of ( wehren . i. veto , ) and ( nyman , ) or nemmen . i. capio . ) for withernam in our common lawe is the taking , or driuing a distresse to a hould , or out of the countie , so that the shyreeue cannot vpon the repleuin make deliuerance therof to the partie distreined : in which case , the writ of withernam , or de vetito namio is directed to the shyreeue , for the taking of as many of his beasts that did thus vnlawfully distrein , or as much goods of his , into his keeping , till that he hath made deliuerance of the first distresse . also if the beastes be in a fortlet or castell , the shyreeue may take with him the power of the countie , and beat downe the castell , as it appeareth by the statute . westm . pri . cap. . britton . cap. . but m. lamberds interpretation seemeth more consonant to the writ , the forme whereof is thus in part , ( fitz. nat . br . fol. . ) tibi praecipimus quòd averia praedicti b. in balliva tua capias in withernam , &c. and the register orig . fol. . & . & . a. & . a. and in the register iudic. fol. a. & . a. whereby it appeareth , that the shyreeue by these words is willed to take in compensation of the former taking , so many cattell , &c. but yet this may qualifie m. lamberds maruelling , because they that translated this word into such latine , seeme to haue bene deceiued by the propinquitie of the word , ( wehren ) both to the word ( withernam ) and also to the meaning . this error ( if it be an error ) hath a probable likelihood of descent from the normans , as appeareth by the grand custumarie . cap. . where you haue wordes to this effect : deficientes ( sc . baliuos ) facere iusticiari , & ca , de quibus iudicium vel recordatio habet fieri in curia : debet ( sc . iusticiarius ) retrahere vel recitare . treugam dari debet facere , quod est assecuratio pacis observandae . nampta iniuste capta per ius facere liberari , &c. here you may see ( nampta ) referred to the first taking or distresse , which is vnlawfull . sir thomas smith in his repub. anglor . agreeth with m. lamberd in these words : this ( withernam ) he ( meaning litleton , with whom bracton also agreeth . lib. . cap. . & lib. . tract . . cap. . ) interpreteth vetitum namium , in what language i know not . whereas in truth it is in plaine dutch , and in our old saxon language ( wither nempt . i. alterum accipere , alterum rapere , ) a word that signifieth all one with that barbarous latine word , ( repraesalia ) when one taking of me a distresse , which in latine is called ( pignus ) or any other thing , and carying it away out of the iurisdiction , where i dwell , i take by order of him that hath iurisdiction , another of him againe , or of some other of that iurisdiction : and do bring it into the iurisdiction , wherein i dwell : that by equall wrong i may come to haue equall right , &c. namatio animalium in scotland is vsed for the pounding of cattell , skene de verbor . signif . verbo , averia : whom also reade , verbo , namare . withernam in bracton lib. . tract . . cap. . and also in westm . . ca. . seemeth to signifie an vnlawfull distresse , made by him that hath no right to distreine . an . . ed. prim . cap. . see the newe booke of entries . verbo withernam . woad , ( glastum ) is an herbe brought from the parts of tolouse in france , & from spayno , much vsed and very necessary in the dying of wollen cloth . an . h. . cap. . we call it woad of the italian word ( guado ) or the germane word ( weidt . ) woodgeld , seemeth to be the gathering or cutting of wood within the forest , or money payed for the same , to the vse of the foresters . and the immunitie from this by the kings graunt , is by crompton called woodgeld . fol. . woodmen , seeme to be those in the forest , that haue their charge especially to looke to the kings woods . manwood parte pri . of his forest lawes pag. . and cromptons iurisd . fol. . woodmote court , is the attachment of the forest . manwood parte pri . of his forest lawes . pag. . see attachment . woodward ( woodwardus ) is an officer of the forest , whose function you may partly gather by his oath set downe in cromptons iurisd . fol. . which m. manwood hath also in his first part of his forest lawes pag. . to the same effect , but something more at large . viz. you shall truly execute the office of a woodward of b. woods within the forest of w. so long as you shal be woodward there : you shall not conceale any offence either in vert or in venison , that shal be committed or done within your charge : but you shall truly present the same , without any fauour , affection or reward . and if you doe see or know any malefactors , or doe finde any deere killed or hurt , you shall forthwith doe the verderour vnderstand thereof . and you shall present the same at the next court of the forest : be it swainmote , or court of attachments , so help you god. woodwards may not walke with bow and shafts , but with forest bills . manwood parte pri . of his forest lawes pag. . and more of him pag. . wooldriuer , anno . & . ph. & ma. ca. . be those that buy wool abroad in the country of the sheep masters , & carry it by horse backe to the clothyers or to market townes to sell it againe . woolferthfod ( caput lupinum ) is the condition of those , which were outlawed in the saxons time , for not yelding themselues to iustice . for if they could be taken aliue , they must haue bene brought to the king : and if they in feare of apprehension did defend themselues they might be slaine , and their heads brought to the king. for they carried a woolues head , that is to say : their head was noe more to be accoumpted of , then a woolues head , being a beast so hurtfull vnto man. see the lawes of k. edw : set out by m. lamberd fol. . b. nu . . the very like whereof bracton also saith lib. . tract . . ca. . see vtlarie . roger houeden writeth it ( wuluesheued . parte poster , suorum annalium fol. . b. ) whom read of this mater because you shall there see what it was in those daies to violate the peace of the church . woolstaple , anno . h. . stat . . see staple . wooll winders , be such as winde vp euery fleece of wooll that is to be packed and sould by weight , into a kinde of bundle after it is clensed in such maner as it ought to be by statute . and to auoide such deceit as the owners were wont to vse by thrusting locks of refuse wooll and such other drosse to gaine weight they are sworne to performe that office truly betweene the owner and the merchant . see the statute , anno . h. . cap. . & anno . h. . ca. . & anno . eliza. ca. . would . see weald . wranglands , seeme to be misgrowne trees that will neuer prooue timber . kitchin fol. . b. wormseede ( semen santonicum ) is medicinal seede browght forth of that plant which in latine is called ( sementina ) in english , holy wormwood , whereof you may read in gerards herball li. . ca. . this is a drugge to be garbled , anno . iacob . cap. . wreck ( wreccum vel wrectum maris ) is the losse of a shippe and the goods therein conteined by tempest , or other mischaunce at the sea . the ciuilians call it ( naufragium ) this wreck being made , the goods that were in the shippe , being brought to land by the waues , belong to the king by his prerogatiue . and therevpon in many bookes of our common lawe the very goods , so brought to land are called wreck . and wreck is defined to be those goods which are so brought to land . sir ed. coke vol. . relatio , f. . a. & the statute anno . ed. . ca. . in these words . item rex habebit wreccum maris , per totum regnum , ballenas , & sturgiones captas in mari vel alibi infra regnum , exceptis quibusdam locis privilegiatis per regem . whereby it appeareth that the king hath them , or such as haue by graunt this libertie or priuiledge of him . and that this statute doth but affirme the auncient lawe of the land , it appeareth by bracton , lib. . cap. . num . . hiis verbis : suntetiam alia res quae pertinent ad coronā propter privilegium regis , & it a communem non recipiunt libertatem , quin dari possint , & ad alium transferi . quia si transferantur , translatio nulli erit damnosa , nisi ipsi regi fiue principi . et si huiusmods res alicui concessae fuerint , sicut wreccum maris , &c. the reason of this he toucheth shortly in his first booke . cap. . num . . where he reckoneth these goods ( iure naturali ) to be ( in bonis nullius ) quia non apparet dominus eorum , sed iure gentium fieri principis : and see him also , lib. . cap. . num . . & . it is worth the asking to know : what is a wreck , and what not in this stricter signification . and the author of the termes of lawe saith , that if any person of the shippe come to land , it is not a wreck , or the wreck is not such , that the king ought to haue the goods . with whome agreeth s. ed. coke vol. . f. . a. no , if either dogge or catte escape aliue to the land : the goods are the owners still , so he come within a yeare , and day to claime them . and for this the statute is plaine westm . pri . ca. . anno . edw. pri . which doctrine fitzh . in his nat . br . fol. . 〈◊〉 extendeth thus farre , that if any of the goods be cast vpon the drie land by any in the shippe , it is no wreck subiect to the prerogatiue , for by this some of the shippe are presumed to come to land , and still to haue a custodie of the goods . cooke vbi supra . this in the grand custumarie of normandie . cap. . is called ( varech ) and latined ( veriseum ) where it appeareth that the like lawe to ours was in normandie almost in all points . but some sorts of their pretious merchandise doe by their lawe appertaine to the duke by his prerogatiue , though a iust challenge of the goods be made within the yeare and day . the emperours of rome made no advantage of this pitifull event , as appeareth : titulo de naufragiis . cod. and it appeareth that richard the first had some remorse of poore sea mens miseries in this case . for he quietum clamavit wreck suis subditis . rog. hoveden parte poster . suorum annal . fol. . of this m. skene de verb. signif . speaketh to this effect : wreck signifieth a power , liberty , and prerogatiue appertaining to the king , or to any person , to whome the same is graunted by him by feofment , or any other disposition , to take vp and gaine such goods as are ship broken , or fall to him by escheate of the sea . writ , ( breue ) is that with our common lawyers ( in sir tho. smiths iudgement lib. . de repub . anglorum . cap. . ) which the civilians call ( actionem , siue formulam ) but i am rather of his iudgement , that hath added the marginall note vnto him , saying that ( actio ) is the parties whole suite : and that ( breue ) is the kings precept , whereby any thing is comaunded to be done touching the suite or action : as the defendant or tenent to be summoned , a distresse to be taken , a disseisin to be redressed , &c. and these writs are diuersly diuided , in diuers respects . some in respect of their order , or maner of graunting , are termed originall , and some iudiciall . originall writs be those , that are sent out for the summoning of the defendant in a personall , or tenent in a reall action , or other like purpose , before the suite beginneth , or to begin the suite thereby those be iudiciall , that be sent out by order of the court , where the cause dependeth , vpon occasion growing after suite begunne . old . nat . br . fol. . and iudiciall is thus by one signe knowne from the originall , because the teste beareth the name of the chiefe iustice of that court whence it commeth , where the orig. beareth in the teste the name of the prince . then according to the nature of the action , they be personall or reall : and reall be either touching the possession , called writs of entrie , or the property , called writs of right . fitzh . nat . br . sparsim per totum . some writs be at the suite of a party , some of office . old . nat . br . fol. . some ordinary , some of priuiledge . a writ of priuiledge is that which a priuiledged person bringeth to the court , for his exemption , by reason of some priuiledge . see pro cedendo . see the new booke of entrise . verbo . priviledge . see briefe . writ of rebellion . see commission of rebellion . writer of the talies ( scriptor talliarum ) is an officer in the exchequer being clerk to the auditour of the receipt , who writeth vpon the talies the whole letters of the tellers billes . y yard land ( virgataterrae ) is a quantitie of land called by this name of the saxon ( gyrdlander ( but not so certaine a quantity , as that it is all one in all places . for in some country it conteineth . acres : in some . in some . as m. lamb. saith in his explication of saxon words : verbo virgata terrae . this yard land bracton calleth ( virgatam terrae . lib. . cap. . & . ) but he expresseth no certainty what it conteineth . yere and day ( annus & dies ) is a time thought in construction of our common lawe fit in many cases to determine a right in one , and to worke an vsucapion or prescription in another . as in a case of an estray , if the owner ( proclamations being made ) chalenge it not within that time , it is forfeit . so is the yeare and day giuen in case of appeale , in case of descent after entry or claime ; of no claime vpon a fine or writ of right at the common lawe : so of a villein remaining in auncient demeane , of the death of a man sore bruised or wounded : of protections ; essoines in respect of the kings service : of a wreck , and divers other cases coke . vol. . fol. . b. and that touching the death of a man seemeth an imitation of the civile lawe . nam si mortifere fuerit vulneratus , & postea post lon . gum intervallum mortuus sit , inde annum numerabimus secundum ●ulianum . l. ait lex . Π. ad legē aquil. yeare , day , and waste , ( annus dies , & vastum ) is a part of the kings prerogatiue , whereby he challengeth the profits of their lands and tenements for a yere , and a day , that are attainted of petit treason or felonie , whosoeuer be lord of the maner , whereunto the lands or tenements do belong , and not onely so , but in the end wasteth the tenement , destroyeth the houses , rooteth vp the woods , gardens , pastures , and ploweth vp medowes , except the lord of the fee agree with him for the redemption of such waste , afterward restoring it to the lord of the fee. whereof you may reade at large in stawnf . praerog . cap. . fol. . & seqq . yoman , seemeth to be one word made by contraction of two danish words ( yong men ) which i gather out of canutus charter of the forest set out by m. manwood parte prim . fol. prim . num . . in these words : sunt sub quolibet horum quatuor ex mediocribus hominibus , quos angli ( legespend ) nuncupant , dani verò ( yong men ) vocant , locati , qui curam & onus tum viridis tum veneris suscipiant . these m. camden in his britan. pag. . placeth next in order to gentlemen , calling them ( ingenuos ) whose opinion the statute affirmeth , anno . r. . cap. . whereunto adde the statute anno . eiusdem regis cap. . sir thomas smith in his repub. anglor . lib. prim . cap. . calleth him a yoman , whom our lawes call legalem hominem : which ( as he saith ) is in english a free man borne , that may dispend of his owne free land , in yerely reuenew , to the summe of forty shillings sterling . of these he writeth a good large discourse , touching their estate and vse in this common wealth . the former etymologie of the name he liketh not , making question whether it come of the dutch ( yonker ) yea or not , which in the low countries signifieth a meane gentleman , or a gay fellow . but he that hath added the marginall notes to that booke , seemeth to draw it from the saxon ( geman ) which signifieth a maried man. m. versteg an in his restitution of decayed intelligence , cap. . writeth , that ( gemen ) among the auncient teutonicks , and ( gemein ) among the moderne , signifieth as much , as common , and that the first leter g. is in this word , as in many others , turned into y. and so written yemen , and that therfore yemen , or yeomen signifieth so much as commoner . yoman signifieth an officer in the kings house , which is in the middle place betweene the serge an t and the groome : as yoman of the chaundrie , and yoman of the scullerie . anno . h. . cap. . yoman of the crowne . anno . ed. . cap. . & anno . eius . cap. . & anno . h. . cap. . this word ( yongmen ) is vsed for yomen in the statute . anno . h. . cap. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 finis . a curious collection of law-books, ancient and modern, consisting of the libraries of john collins, esq. ... and of another fam'd practicer of the law with additions of the best and latest law-books hitherto extant : as also an appendix of a considerable number of books of the civil & canon-law : will be exposed to sale by way of auction, on munday the d day of july, , at the first house on the left-hand in flying-horse court in fleetstreet, near the kings-head tavern at chancery lane end, by edward millington, bookseller. collins, john, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing c estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a curious collection of law-books, ancient and modern, consisting of the libraries of john collins, esq. ... and of another fam'd practicer of the law with additions of the best and latest law-books hitherto extant : as also an appendix of a considerable number of books of the civil & canon-law : will be exposed to sale by way of auction, on munday the d day of july, , at the first house on the left-hand in flying-horse court in fleetstreet, near the kings-head tavern at chancery lane end, by edward millington, bookseller. collins, john, - . millington, edward, d. . [ ], p. s.n.], [london? : . advertisement: p. 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instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng collins, john, - -- library -- catalogs. law -- bibliography -- catalogs. private libraries -- england -- catalogs. catalogs, booksellers' -- england. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion a curious collection of law-books , ancient and modern , consisting of the libraries of john collins , esq late of grays-inn , deceased . and of another fam'd practicer of the law : with additions of the best and latest law-books hitherto extant ; as also an appendix of a considerable number of books of the civil & canon-law , will be exposed to sale by way of auction , on munday the d day of july , , at the first house on the left-hand in flying-horse court in fleetstreet , near the kings-head tavern at chancery-lane end. by edward millington , bookseller . catalogues are given gratis at richards coffee-house , and rain-bow coffee-house in fleetstreet ; and at mrs. dangerfield's , in the above-mentioned flying-horse court ; at john's coffee-house in fullers-rents , near grays-inn ; at the coffee-house over agianst lincolns-inn in chancery-lane ; at bridges coffee-house in popes-head-alley , over against the exchange in cornhill ; at edward millington's at the bible in little-britain . . to the reader . this catalogue contains the compleatest collection of the common and statute law-books , ancient and modern , that hath been hitherto published , or perhaps will ever be exposed to sale by way of auction : so that i may presume to say , that not one considerable book of price , or use in the whole body of the law is wanting . these gentlemen were curious in collecting of the ancient , and scarce books of the law , as is obvious to every one that shall please to peruse the ensuing names of them , especially of books of old customs , usages , and charters ; there being no less then three different editions of that fam'd book of the customs of normandy , two of stebunhith and hackney ; and of the charters , of romeney-marsh , of the tinners in cornwall , &c. with indeed all other books that respect the law , that were useful , and in general esteem , which is invitation sufficient to all the gentlemen of the gown , to buy upon this occasion , what they cannot so easily meet with , or not at all find , when their occasions require , or they are desirous of having them . this auction will begin on monday the second day of july , , at the first house on the left-hand in flying-horse court , in fleetstreet , near the kings-head tavern at chancery-lane end ; at the hours of nine in the morning , till twelve ; and from three in the afternoon to six . at which place , and at the aforesaid hours , the books will be exposed to view , for three whole days before the sale , to all gentlemen that please to inform themselves in the editions or conditions of them . the conditions of sale. . that he who bids most is the buyer ; and if any difference ariseth , the same book or books to be again exposed to sale. . that the books in this catalogue ( not otherwise expressed ) are , for ought we know , perfect ; but if any of them appear to be otherwise ( before they be taken away , ) the buyer shall have his choice , whether he will leave or take the same . . that the money for the book or books so bought , is to be paid within a fortnight after the auction is ended , at the place of sale , where , upon payment thereof , the book or books shall be delivered , within the time aforesaid . law-books in folio . ashes tables to the l. cook 's reports , as also to the body of the law , with m.ss. notes , guarded & enlarg . with paper , in one vol. lond. table to fitz-herbert's grand abridgment of the law , by rastal . townsends tables to the presidents of pleadings of the common-law . pulton's collect. of statutes , with manby's continuat . ad an. . car. . vol. — kalender , or table of all the statutes , comprehending their effects . a collect. of statutes , in norman , french , & english , printed anno regis h. .   rastal's statutes at large , from magna charta , ad annum phil. & mariae — his collection of entries , declarat . barres , replicat . &c. best edit . — liber intrationum , complectens diversas formulas placitorum , best edit . answering to the references in townsend's tables statutes of ireland , from the th year of k. h. . to the th of q. eliz. — of ireland , in the th & th years of k. charles i. bolton's justice of peace for the kingdom of ireland — dublin , skene ( sir j. ) regiam majestatem , or the auld laws and constitutions of scotland , collected out of the register , from malcolm ii. to k. james . lond. catalogue & collect. of cromwell's ordinances , proclam . &c. from to — another of the same , larger letter , gilt leaves — another collect. in , with the petit. and advice of the knights . scobell's collect. of acts & ordinances , examined by the original records . a collect. of acts for the years , , , car. . bound in fillets , vol. pulton , de pace regis & regni , of treasons , homicides , felonies , &c. — abridgment of all the statutes , comprehending their effects collect. of all the statutes in use , and those repealed abridged , with notes and references to the book cases & entries , with a table to the whole l. cook 's reports , in french , parts , vol. with a large table , ( lett . ) — his reports in english , parts , compleat , with a table , vol. — his institutes of the laws of england , parts compl . with tab. vol. — his book of entries , containing approved presidents , &c. prynne ( w. ) animadversions on , amendments of , additional explanatory records to the th part of l. cook 's institut . viz. jurisdict . of courts cotton ( sir rob. ) abridgment of the records in the tower of london , from k. edward the d , to k. richard , with tables by prynne brook's grand abridgment of the law , parts , compleat statham's abridgment of the old law , of a curious character and paper , liber antiquissimus , & rarissimus omnium librorum ad legem spectantium .   rolls abridgment of the law , parts , one vol. with tables sheppard's abridgment of all the common & statute-law now in force , with words and terms of the law explained , with alphab . tab. — law of common assurances touching deeds in general — practical counsellor in the law , touching fines and recoveries , &c. wingate's maxims of reason , or the reason of the com. law of england , sir bridgman's conveyances , select presidents of deeds & instruments . plowden's reports compleat , parts , tables , with m.ss. notes dyer's reports , with the large table keilway's reports , with notes , large paper crook's reports , temp. caroli , jacobi , & elizab. with new notes , vol. hutton's reports in the common-pleas , temp. jacob. & caroli hobart's reports in the common-pleas , with a table — another , purged from errors , enlarged with marginal notes yelverton's reports in the kings-bench latches reports in the kings-bench style 's narrationes modernae , his reports , with the numb ▪ rolls of the cases . owen's reports in the com. pleas , reconciling the differ . in the year-books winch's reports in the common-pleas , tempore jacobi lane's reports in the exchequer , with alphabetical tables hetley's reports in the common-pleas sir savil's reports in the exchequer , tempore elizabethae rolles reports in the king's bench , tempore jacobi , vol. sir jones's reports in the kings-bench modern reports in the courts of kings-bench , chancery , com. pleas , &c. anderson's reports compleat , parts , tempore elizabethae moor's cases and reports , published by sir geoffery palmer bendloes reports , temp . h. . edw. . phil. & mar. & elizab. noy's reports in the time of q. eliz. k. james , k. charles ley's reports in the court of wards , and other courts , temp . jac. & car. dav. jenkins rerum judicatarum centuriae octo , or his reports aleyn's select cases reported , with tables popham's reports and cases , with other cases , by other learned pens vaughan's reports and arguments in the common-pleas leonard's reports compleat , parts , vvith the general table , vol. davis's reports in the courts of ireland case of tenures on the commiss . of defect ▪ titles , argued by judges of ireland reports , vvith choice cases in lavv , in k. james & k. char. time , by hutton , bulstrode's reports in the kings-bench , in k. james's time , parts , compleat . palmer's reports , vvith tvvo tables , temp . caroli secundi dalton's country-justices practice out of the sessions — another , vvith the duty and povver of justices in the sessions — office and authority of sheriffs enlarged , since dalton keeble's assistance to the justices of the peace cawleys lavvs of q. el. k. ja. k. char. & , touching jesuits , & pop. recus . duke's lavv of charitable uses , vvith sir moor's readings draught of an act for county-registers , wills , administrations , for preventing delay and charge in the chancery and common-lavv thesaurus brevium , or a collection of approved forms of writs brownlow's brevia judicialia ▪ a collect. of approved forms of judicial writs . officina brevium , select and approved forms of writs in the com. pleas. registrum omnium brevium , tam originalium , quam judicialium selden's mare clausum , seu de dominio maris libri duo — idem , englished by j.h. — his tracts of the original of ecclesiast . jurisdict . of test . &c. grotius of the rights of war and peace , engl. by evats ▪ minshews dictionary , languages , explaining the obsolete words of the lavv.   cowells interpreter of words & terms of lavv , enlarg . by manley , lond. blount's lavv-dictionary , explaining the words of the lavv spelmanni glossarium , continens latina , barbara , peregrina , obsoleta , & novatae significationis vocabula , scholiis illustrata , ( opt . edit . ) — idem alterius editionis lyndwood provinciale , seu constitutiones angliae , cum summariis & annot. — idem cum constitutionibus othon . & othoboni , & aliis constitutionibus londinens . hanc editionem citat cook on littleton le grant coustumier du pays , & dutche de normendie , avec la chartre de normandie , & autres ordinances , best edit . — rov . bracton de legibus & consuetudinibus angliae , lib. distincti — lond lambard de priscis anglorum legibus , sax. lat. cum legibus hen. primi , una cum glossario earum antiquo suarez de legibus omnibus tractatus amplissimus dugdale's origines juridiciales , with cuts perfect journal of the house of peers , beginning octob. . . containing an exact account of the proceedings of the house , to the sitting of the next parliam . march . . a large manuscript , fairly writ . sovereigns prerogative , and subjects priviledges , comprised in several speeches , cases , & arguments of law , betwixt the king and parliam . townsend's historical collections of the proceed . of q. eliz. last parliam . ryleys ▪ placita parliamentaria , una cum judiciis forensib . large paper . hernes ▪ pleader , containing perfect presidents & forms of declar. plead &c. compleat sett of year-books , viz. edw. . parts . h ▪ . . ed. . long quinto of e. . hen. , & . e. . r. . h. , & . with m.ss. notes , vol. tables to the whole body of the law , & to cooks reports , vol. by ashe . brown's formulae bene placitandi , a book of entries compleat , parts . winches book of entries , declarations , &c. thompson's liber placitandi , a book of special pleadings and presidents law-books in quarto . littletons tenures , french , enlarged with paper , with several manuscript notes . lond. fitzherbert's natura brevium , french , guarded and enlarged with paper , with manuscript notes and references sir h. finches ▪ discourse of the law , interleav'd with paper , with manuscript notes , & references to the law-books , vol. compleat clerk , containing the best forms of presid . of assur . conveyanc . west symboleography , or book of presidents , vol. compleat fidell's perfect guide for a lawyer , presid . of conveyances out of coke , &c. perfect conveyancer , presidents out of henden , noy , mason , &c. doderidges english lawyer , a method for managing the laws of the kingd . lawyers logick , exemplifying the precepts of logick by the com. law. l. bacons elements of the law , and its use , containing rules , maxims , &c. noy's grounds and maxims of the laws of this kingdom moyles exact book of entries of the most select and judicial writs smalls exact collection of declarat . with pleas , replicat . rejoinders , &c. ashton's placita latinè rediviva , a book of entries earle doctrina placitandi , ou l'art de bon pleading townsends d book of judgments in real personal actions godbolts reports of certain cases arising in the court of records special law-cases about persons & estates , collected out of the body of the law , large paper gouldsboroughs reports , with learned arguments at the bar marches reports , or new cases , with judgments on them , with a table brownlow and goldesborough's reports compleat , parts , one vol. — declarations & pleadings in english , parts compleat , vol. — judicial writs , shewing the forms of entries of executions powel's attourneys academy in the courts at westminster with the fees — another , with the attorneys almanack , and directions for search of the records in the tower , with the office of a remembrancer book of presidents in the manner of a register cromptons author . & jurisdict . of courts , courts de justices , de forest , &c. — office and authority of the justices of the peace coustumes du pais de normandie , anciens , ressors & euclaves de iceluy — a paris les coustumes du pais & duche de normandie , avec commentaries & tables , editionis raphael du petit val — ibid. the charter granted to the tinners of devonshire , by k. edw. . with its several confirmat . & a table of the stat. of the stannary , very ancient   ancient customs of stebunhuth & hackney in middlesex , received and approved by the lords of the mannor , with their confirmations rights of the kingdom , & customs of our ancestors , discussed through the british and saxon laws , with the power of parliaments , by mr. sadler , sometime town-clerk of london ( not castrated ) taylors history of gavelkind , and its etymol . with the life of w. conq. summers treatise of gavelkind , with the ancient customs of kentish-men . manwoods treatise of the laws of the forest , with their beginning sir walt. rawleigh's prerogative of parliaments in england hakewells liberty of the subject , against the pretended power of imposit . husbands exact collect. of all remonstrances , declarat . votes , orders , ordinances , proclam . petit. messages betwixt the king & parliament abstract of all the penal statutes which be in general force and use stamfords pleas of the crown with the king's prerogative prynnes aurum reginae , a collect. of the tower-records as to the qu. gold interpreter of the signification of the words of the law , by cowell skenes exposition of the terms and difficil words of the law fitz-herberts grand abridgment of the law , parts compl . with a table brookes grand abridgment of the law , smallest in to callis reading upon the stat. . hen. of sewers l. chanc. ellesmeres speech in the exchequer touching the post-nati sir james dyers reading of wills , brograve of jointures , and risden of forcible entry opinions of judges about nusances of dwelling-houses sir francis bacons readings upon the statute of uses city-law , or the course of proceeding in all its courts , with the offices marches reports , or new cases , with the three learned readings of dyer , brograve , and risden , about wills , &c. sheppard's grand abridgment of common and statute-law , compl . lond. — touchstone of common assurances and conveyances — faithful counsellor , or the marrow of the law , parts , vol. compl . — president of presidents fleta de antiquis britanniae legibus , cum commentariis seldeni godolphin's abridgment of the ecclesiastical laws of this kingdom orphan's legacy , or testamentary abridgment , d edit . swinburn's treatise of testaments and last wills fr. clerke praxis curiae ecclesiasticae , edita per bladen selden's history of tithes , and the practice of paying them welwood's abridgment of all the sea-laws fulbeck's parallel of the civil law , with the canon law , and the common-law , as also the pandects of the law of nations ridley's view of the civil and ecclesiastical law trial of bastardy , or the manner of the government of england , termed spiritual or ecclesiastical , with tables of prohibited marriages , and of the english and positive canon catalogues , &c. hughs grand abridgment of the law , vol. compleat — exact abridg. of the acts and ordin . of parliam . from to . — abridgment of the cases of the law — commentaries upon original writs law-books in octavo , twelves , &c. hawkes grounds of the laws of england , & reasonableness of the law philips directions for the study of the law — principles of the law reduced to practice noy's compleat lawyer , or a treatise of tenures and estates — grounds and maxims of the laws of england wentworths institutions , or principal grounds of the laws of england doctor and student , a dialogue about the laws of england abridgment of the doctor and student davenports abridgment of ld. cooks commentaries upon littleton irelands abridgment of the lord cooks reports trotmans abridgment of the lord cooks reports , french , with a table abridgment of the , reports of the l. cook , by manley wingates abridgment of all the statutes in force and use — another continued and inlarged abridgment of the statutes in the reigns of k. charles & , by manley abridgment of the stat. , , car. . & , car. . abridgment of the book of assizes , french abridgment of brooke , englished by march , with a table abridgment of dyer , french abridgment of the reports and commentaries of plowden abbreviamentum magnum statutorum angliae , ad ann . hen. .   bridall's abridgment of the laws of england , touching treason , rebellion — view of the laws of england , viz. stat. law , com. law , & customs . epitome of the common-law , d edit . enlarged by glisson , and gulston magna charta antiquissima ( sine titulo ) latinè lond. — another ( editionis tottel ) cum statutis antiquis tum recentibus — another , cum caeteris antiquis statutis per exemplaria examinata — another in english , with notes and observations of ed. coke . fitzherberts natura brevium , french ● la veiux & natura brevium dernierment corrigee gregory's abridg. des cases concernants les titles des leys du royalme plowdens queries , or a moot-book of choice cases , englished by h.b. hughs queries , or choice cases for moots , several points of law resolved tenures de mons . littleton ( charta magna ) cum multis notis m.ss. littleton in french and english , with a table — another in french perkins of the laws of england , french , with manuscript notes clodovei childeberti libellus antiquitatis , continens legem salicam , & leges burgund . alamannorum , saxonum , ex veteribus libris coustumes des pais , & dutche de bretagne , º rov . fortescue de laudibus legum angliae , with the notes of john selden , esq britton de legibus antiquis angliae , with wingates corrections glanvil tractatus de legibus & consuetudinibus angliae , cum commentario fortescue , de politica administratione & legibus angliae   — another , cum diversis manuscriptis examinatis cum jndicibus williams excellency of the laws of england , with judge hales opinion in several select law-cases sir rob. brookes reading on the statute of limitations glisson's survey of the law , with the judges opinions in several cases heydons ▪ idea of the law , and the idea of government and tyranny meritons landlords law , a collection of several cases about leases , &c. tenants law , several cases in the law about leases , rents , distresses enchiridion legum , a discourse of the beginning , nature , progress , and use of the law finches law , with a discourse thereof , in books , english summary of the com. law of england , with tablets for method of study collins summary of the laws of england , as to justices of the peace pages ▪ jus fratrum , the law of brethren , shewing the variety of customs in several counties fountain of the law , shewing the method of proceeding in all actions terms of the law , with the exposition of them , enlarged leighs philological commentary of the obvious & useful words of the law doderidges honour's pedigree , rights and priviledges of the nobility , according to the customs and laws of england treatise of the nobility of the realm , collected out of the law the magazine of honour , or the degrees of nobility , by bird seldens priviledges of the baronage in parliament sheppards actions upon the case for deeds , viz. contracts , assumpsits , &c. — actions for slander , a collect. of cases under heads — england's balme , or proposals for regulating the law — view of all the laws and statutes concerning the service of god statuta vetera & recentiora , a collection of statutes about the practice of the law hernes law of conveyances , the nature , kinds , effects of them hernes law of charitable uses , or the statute of eliz. explained lond. blounts statutes concerning bankrupts , methodically digested stones readings on the of eliz. touching bankrupts styles practical register , consisting of rules , orders , and observations brevia selecta , or choice writs , not usually included in the writ-books vaughans discourse of coin and coinage , with an account of the law therein townsends preparative to pleading in the court of common-pleas judg jenkins works on divers statutes , relating to the right of the king and subject lambards office of the justices of peace , in two books chamberlains compleat justice , a collect. of stat. & authors about that office sure guide for his majesties justices of the peace , by sheppard justice of peace clerks cabinet , a book of warrants by sheppard kilburnes choice presidents upon all acts of parliament relating to the office of a justice of the peace practick part of the office of a justice of the peace justice restored , or a guide for the justices of peace in and out of sessions wingates justice revived , the whole office of a country-justice hornes mirrour of justices , french youngs table of the statutes relating to justices clerks manual , a collection of forms of declarations , pleas , &c. browns entring clerks vade mecum , or a collection of presidents youngs clerks guide , a collect. of choice english presidents , parts compl . — another , containing presidents for all sorts of indentures , &c. placita generalia & specialia , with the forms of entring pleadings officium clerici pacis , a book of indictments , informat . appeals , inquisit . billinghursts arcana clericalia , the mysteries of clarkeship young clerks tutor enlarged , a collection of presidents , of recognis . &c. compendious and accurate treatise of fines and recoveries upon writs of entry office of the clerk of assize , and of the peace , with a table of fees young clerks companion , or a manual for his daily practice the clerk of assize , judges-marshal , and cryer , by t.w. touchstone of presidents , relating to judicial proceedings in law , by g.f. a book of presidents and instruments the sollicitor , together with his parts and qualities , and fitting endowments the compleat sollicitor , performing his duty , and teaching his client attorney of the court of common-pleas , tothils transactions of chancery attourney of the court of common-pleas , with the practice of the court attourneys guide , suing out fines and recoveries , by g.t. compleat attourney , and his office in the prosecution of any action layman's lawyer , or the d part of the practice of the law , with the duty of a gaoler sir matt. hales pleas of the crown , with a summary of the matters bagshaw's rights of the crown of england , as it is established by law jura coronae , his majesties rights asserted against papal usurpations judgments in the upper-bench upon the most difficult points in all actions ancient & modern practice of the kings-bench & com. pleas , with the rules of the said courts , with the practice of the sheriffs court , and customs of the city lond. rules and orders for the court of upper-bench at westminster vernon's consideration for regulating the exchequer fanshaws practice of the exchequer-court , with its offices practice of the court of chancery , with the nature of the offices of that court transactions of the court of chancery , both by practice & president lord ellesmeres observations concerning the office of lord chancellor collection of orders heretofore used in chancery cary's reports , or causes in chancery , out of lambert , &c. filacers office , with the nature and forms of their writs kitchins court leet , court baron , with the form of keeping them — jurisdictions or lawful authority of court-leets , th edit . enlarg . greenwoods practical demonstration of county-judicatures corporations , fraternities , and guilds , with forms of the charters of corporations court-keepers guide , with the jurisdiction of these courts , by sheppard archion , or a commentary on the high-courts of justice in england , by lambard articuli ad novas narrationes , a book of diversity of courts lord cokes compleat copy-holder , with a supplement meritons guide for constables , church-wardens , overseers of the poor offices and duty of constables , bar-holders , tything-men , by sheppard duty of constables , &c. with the duty of the surveyors of the high-way babingtons advice to grand jurors in cases of blood trials per pais , or the law of england as to juries , by g.d. — another , methodically composed , by s.e. englands liberties , or the free-born subjects inheritance blount's ancient tenures of land , & jocular customs of some mannors wilkinsons office and authority of coroners and sheriffs , with the return of writs smiths commonwealth of england , with the manner & governm . thereof march amicus reipublicae , the commonwealth's friend vaughan's practica walliae , or the proceedings of the great sessions of wales , with the old statutes of wales at large , & abridgment of others reports and pleas of the assizes at york marius advice concerning bills of exchange , with several forms of bills atwoods jani anglorum facies nova , touching the great councils of the kingdom , several monuments of antiquity — another , containing the laws ecclesiastical and civil , about the clergy in voting in capital cases petyts ancient right of the commons of england asserted — miscellanea parliamentaria , presidents of freedom from censures , and arrests of the parliament-members hakewells old way of holding parliaments in england , & their priviledges copy of the two journal-books of the house of commons , including their transactions the whole series of the transactions of the peers as to the popish plot l. hollis grand question about the judicat . of the peers in skinners case — his remains concerning the judicature of the bishops in parliam . the connexion , a collect. of some principal matters in k. james's reign hobbs art of rhetorick , with a discourse of the laws of england lex londinensis , or the city-law , with its customs , & pract. of the courts camera regis , or the state of the city , as to its officers , courts , customs , calthrop's reports touching the customs & liberties of the city of london act for the reformation of abuses in the wardmote-inquest , with the articles & charge of the said inquest , with others relating to the city charter of henry k. of england , concerning the ordinance romeney-marsh turner's case of the bankers stated , the property of the subject asserted right of dominion , & property of liberty , with the necessity of monarchy catalogue of the law-books of england , interleav'd with m.ss. additions — another , with an account of the best editions , volumes , prices , &c. jus sigilli , or the law of england touching the four principal seals ashes tables to the lord cokes reports , of the old editions — table to the statutes of equity , with dallisons & bendloes reports — table to judge dyer's reports — table to edw. . rich. . hen. , & , by fleetwood theloall digest of original writs ridley's view of the civil & ecclesiastical law , with gregory's notes molloy de jure maritimo & navali , of affairs maritine , &c. deggs parfons councellor , with the law of tithes or tithing hugh's parsons law , or a view of advowsons meriton's parsons monitor , consisting of cases concerning the clergy — touchstone of wills , testaments , and administrations godolphin's view of the admiral jurisdict . with the laws of oleron abridg . clerke praxis curiae admiralitatis wentworth's office and duty of executors , a treatise of wills appendix to the office and duty of executors , by t.m. sharrock's provinciale vetus provinciae cantuariensis , cum selectioribus linwoodi annotationibus , & constitutionibus othoboni cowelli institutiones juris anglicani — another in english , digested into the method of the civil institutions law-books submitted in folio . pvlton's collection of all the statutes in use , and those repealed abridged , lond. — abridgment of all the statutes from magna charta to of k. james — de pace regis & regni , touching treasons , homicides , felonies , &c. rastal's collection of all the statutes at large , with marginal notes , vol. — collection of entries , declarations , &c. large paper collection of the ordinances , proclamations , declarations of o. cromwell collection of acts of k. charles the d , in , , , winches book of entries , declarations , pleadings , &c. lord cookes institutes compleat , parts , vol. with tables — pleas of the crown , d part of the institutes — reports in english , parts , with a large table — in french , parts , in vol. lond. — th and th parts , vol. prynnes animadversions on the lord cooks jurisdiction of courts ( lett . ) keilways reports with dallison and bendlow , and a table leonard's reports , with alphabetical tables , d part hobarts reports , ( th edit . ) enlarged and corrected , with a table ley's reports in the court of wards huttons reports in the com. pleas , with references to some late reports davis reports , with a table jones's reports in the kings-bench modern reports , collected by a careful hand , temp . car. law of common assurances , touching feoffments , gifts , grants , &c. practical counsellor , touching fines , recoveries & judgments book of entries , containing many choice presidents , by brown , compleat — formularum bene placitandi , pars secunda judicial writs , with their returns & entries in the common-pleas country-justice , both in and out of sessions , with the statutes abridged reports of the learned judg hobart lyndwoods provinciale , continens constitutiones provinciales quatuordecim archiepiscoporum cantuar. à step. langham ad h. chicleium , oxon rolls abridgment of the law , ( with l. hales preface ) parts , one vol. lond. h. grotius of the rights of war and peace , engl. by evats selden's tracts of the original of ecclesiastical jurisdict . of test . &c. a compleat collection of year-books , with additions of new notes , and references to the abridgments of brooke and fitzherbert , with tables to several of the books , not before extant , in ten volumes edward the first and second , published from the manuscripts , and with the notes and tables of serjeant maynard year-books of edward the th , henry the , . hen. . parts . edw. . rich. . hen. , . with manuscript notes , five vol.   — henry , , separatim , with large manuscript notes rastal's collection of statutes , from magna charta to q. elizabeth   sinderfin les reports des divers special cases bancke le roy , temp . car. . law-books omitted in quarto . tenures de mons . littleton , interleav'd with paper , with manuscript notes lond. hughs abridgment of publick acts and ordinances of parl. from to — abridgment of the law , with the cases thereof brownlows and goldesboroughs reports , parts compleat — declarations & pleadings in english , or forms of proceedings in law — judicial writs , as used in the common-pleas smalls collection of declarations , pleas , & entries of judgments goldesboroughs reports , or choice cases agitated in all courts at westminster moyles entries of the most select judicial writs used in the common law placita latinè rediviva , a book of entries , by aston earle doctrina placitandi , ou l' art & science de bon pleading sheppards abridgment of the common and statute-law , alphabetically digested under proper heads and titles , parts , one vol. lond. — faithful counsellor , or marrow of the law , first part compleat clerk , containing forms of all presidents for conveyances , &c. with forms of bills , pleadings , & answ . in chancery , by eminent lawyers henden , noy , mason , fleetwood , select & choice presidents of conveyances guide for a studious lawyer , presidents out of lord coke , hobart , &c. doderidges english lawyer , describing a method for managing the laws life and reign of king edward the th , by sir g. hayward ryves vicars plea , declaring the right of tithes , notwithstanding impropriat .   history of the ancient and modern estate of the principality of wales   nic. bacons historical discourse of the uniform government of england , with a discourse of the power and priviledges of parliament , by way of preface to the second part , two parts compleat sadlers rights of the kingdom , and customs of our ancestors , with the power of parliaments powel's attorneys academy , and almanack , repertory of the records in chancery and the tower crompton's office and authority of the justices of the peace reports or new cases , with the reasons of the resolutions godolphins orphans legacy , or last wills , of executors , of legacies fulbeckes pandects of the law of nations , with the parallel treatise of the laws of the forest , with what a forest is , &c. by manwood fitz-herbert's grand abridgment of the law , fair and large cutt , ( best edit . ) with a table , and some manuscript notes womans lawyer , or the rights belonging to women boon examen legum angliae ●● wisemans law of laws , or the excellency of the civil law ●● philips reforming registry , or a representation of the mischiefs of registries , proposed to be erected in every county — legality , reason , &c. of the rights & priviledg . of the kings servants prynne's historical vindication of the good old fundamental rights , liberties and properties of english freemen , d part — sovereign power of parliaments and kingdoms ' d & th parts — plea for the lords , a vindicat. of the legislative power of the peers , with his speech , dec. . , touching the satisfact . of kings answers collection of statutes alphabetically from magna charta , to   law-books omitted in octavo , twelves , &c. wingates abridgment of all the statutes in force and use — another , beginning at magna charta , alphabetically digested gregory's moot-book in french wingates body of the common-law of england leighs illustration of the useful words , with their distinctions in the law exposition of the terms of the law , without title   ashes tables to the statutes of equity , with dallison & bendlows reports — table to the reports of judge dyer elenchus annalium edw. . rich. . hen. , . th. bassetts catalogue of the law-books lond. — another , reducing the books to proper heads actions on the case for deeds , collected out of the body of the law — another , with alphabetical tables — actions on the case for slander , by sheppard glisson & gulstons survey of the law , with the nature of a writ of error marches actions for slanders , parts compleat — another , containing what words are actionable in law law of charitable uses , as presidents upon that statute of uses — another , teaching how to sue out and prosecute on that statute kitchins jurisdictions of courts , and the authentick forms of writs greenwoods ministerial authority of coroners and sheriffs magna charta , & caetera statuta , nunc per exemplaria examinata magna charta , edit . tottell tenures de littleton , cum notis manuscriptis tractatus de consuetudinibus angliae , per glanvillum direction or preparative to the study of the law , by fulbecke clerks guide , parts compleat , by j.h. counsellor entring clerks vade mecum , by brown placita generalia & specialia , in a collection of presidents practick part of the law , shewing the office of an attourney compendious treatise of fines and recoveries upon writs entry the sollicitor , teaching his client in all courts statutes concerning bankrupts methodically digested , by t.b. — ancient tenures of land , and customs of mannors fragmenta antiquitatis , with the jocular customs of mannors city-law , with its customs , powers , & practice , & acts of com. council state of london viewed , containing its antiquity , fame , walls , &c. jani anglorum facies nova , by atwood copy of the journal-book of the last-parliament , with the history and discovery of the late popish plot journal-book of the commons , containing the discovery of the popish plot by the king to the two houses of parliament , with danby's accusation ancient right of the commons , & that they were ever an essent . part of parl. — miscellanea parliamentaria , by petyt cases of the bankers and their creditors examined and stated anthrobus and impey , choice writs , being extents directed to bishops wilkinsons office of coroners and sheriffs view of the civil and ecclesiastical law , by ridley parsons law , or a view of advowsons , by hughs — another , collected out of the body of the law praxis curiae admiralitatis , per clerk cowells institutes of the laws of england office of a filacer , with a table of their fees office of the clerk of the market , and of the laws of provision cary's reports in chancery , with the king's decree in chancery grimstones collection of orders used in chancery reports at the assizes of york , with presidents for pleading at assizes ▪ proceedings at the sessions in wales , by vaughan practice of the exchequer court , by fanshaw marches actions for slander , and of arbitrements , two parts — another in english , with a view of all manner of pleadings natura brevium , french , with an ancient one in english , vol. fitzherberts natura brevium , french , with rastals table ordinance of parliament concerning the subsidy of tonnage exposition of the terms of the law , with rules and principles of law — another , with the old terms , french & english — another , augmented in the french and english parsons law , collected out of the body of the common-law wingates abridgment of stat. from magna charta to , with tables resolutions of the judges on the several statutes of bankrupts bundles of pamphlets belonging to the law , &c. n o judge thorpes charge at the assizes at york epitomizing the statutes . chancell . ellesmeres speech touching the post-nati . laws and orders of war for the service of ireland . leighs considerations for regulating the high-court of chancery . l. bacons speech concerning the naturalization of the scots . — his charge at the session for the verge , with the jurisdiction thereof . warrens new plea for the old law. proposals for regulating the law , both in sense , form , and practice . vindication of the laws of engl. as established . e.c. treatise of bail and mainprise . right of tithes asserted by our old saxon laws . articles of the parliament exhibited against sir j. brampston , and berkeley , justices , . priviledges and practice of parliaments , with their original , &c. sir nich. bacon's arguments exhibited in parliam . proving the persons of noblemen attachable for contempts against the court of chancery . manner of proceedings in the courts of the sessions of north-wales . city-law , or the course and practice of proceed : at guildhall . argument of nich. fuller , proving that the ecclesiastical commissioners have no power to imprison , or to put his majestie 's subjects to the oath ex officio . decree in the star-chamber , against ingrossing of grain by chandlers , . names of the towns , villages , hamlets , in england and wales , alphabetical . n o gery's proposals for reformat . of abuses and subtilties against the law. vindication of the laws of england , with proposals for regulation . faldo's reformat . of proceed . at law , by way of petit. to the parliam . treatise of the laws of england , with the jurisdict . of the court of parliam . doderidges compleat parson , or a description of advowsons , &c. arguments upon the writ of habeas corpus , with sir j. elliots petition in behalf of the liberty of the subject . decree in the star-chamber against rice griffith , & john scripps . colthrops customs and usages of the city of london confirmed by acts of parl. holborns readings upon the statute of treasons . orders and directions for executing the statutes for relief of the poor . considerations touching dissolving the high-court of chancery . charge given at the verge in k. james's time , by sir fr. bacon . speech without doors , imperfect . answer to that speech call'd mr. challener's . plea for monarchy , in an address to general monck . instructions agreed on in parliament , sent by the commissioners to the hague , with commissioner hollis's speech . his majesty's letter sent by sir j. greenvil from breda . his majesty's letter to the generals at sea from breda . souldiers address under gen. monck to his majesty . discourse for a king and parliament . letter from an independent , to his friend a presbyterian . vindication of the lord-mayor & common-council , . discourse of the settlement and composure of differences in this nation . speech of a member of parliam . tending to the establishment of kingly government . sir fr. lovelaces speech to his majesty , at his arrival at canterbury . covenant acknowledged by an english covenanter . declaration of the true state of the secluded members case . — no cokes readings upon the statute of fines . proposals for regulating the law , and making it plain . collection of the rights of parliament . priviledges of parliaments allowed by the learned in the law. order of holding parliaments in engl. case of ship-money discussed . st. johns speech about ship-money . bagshaws argument in parl. about the cannons of the church . calthropes relation between the lord of the mannor , and the copy-holder . act of common-council to regulate the courts in guildhall . survey of the office of lord high-steward of england . grand-jury-man ' s oath explained . apology for a younger brother , or right of parents dispose their estates . a proclamation for executing several irish statutes . customs , usages , & liberties of the city of london . judge thorpes charge at york assizes . t.e. two charges at the assizes at ipswich . — no st. johns speech about ship-money . case of ship-money discussed . opinions of four judges about nusances in houses . rawleigh's priviledges of parliaments . manner of holding parliaments . orders , proceedings , punishments , and priviledges of parliament . collection of the rights of parliament , out of ancient writers . discourse of the power of the peers and commons in parliament . jacksons free-born english-man's plea for justice . star-chamber cases , & what causes belong to that court. l. bacons ordinances in chancery . hakewells liberty of the subject against impositions . considerations for taking away the court of chancery . — no petition of right of the freemen of england . catalogue of the l. chancellors , l. keepers , & l. treasurers of england . pym's declarat . upon straffords charge of high-treason . sir fr. bacons cases of treason . vindicat. of bagshaw's readings about the cannons , and premunire upon them . argument to prove each subjects propriety in his goods by a learned judge . foresta de windsor , or the meers , meets and bounds of the forest of windsor . liberties and customs of the miners . brooks reading upon the statutes of magna charta . city-law , with the offices disposed of by the lord-mayor . liberties of london , with the charters confirm'd by parliam . and others not confirm'd . speech about ship-money to the lords in parl. . original of parliam . with the saxon denomination of parliam . by sir w. rawleigh . n. pettus treatise of taxes and contributions . case of our affairs in law and religion . leach's proposition for registring of deeds , conveyances , &c. compleat law-judg and lawyer . declarat . of the lords & commons upon the statute that warrants the commission of array . abstract of a treatise about paying of tithes in london . l. bacon's reading upon the statute of uses . ancient land-mark , or the right of the nobility to sit in parliam . discourse of the fundament . laws . k. negat . voice , power of parl. with relat . to the militia . just lawyers complaint against private solliciting of judges . younger brothers apology . free customs and priviledges of stebunhith and hackney , . commoners liberty , or english-man's birthright . experimental essay touching regulat . of the laws of engl. readers speech of the middle-temple on magna charta . case of tristam woodward esq about the mannors of tuddington in bedfordsh . imprisonment for debt , against the laws of god and man. k. james edict against combats . declaration for using lawful sports on the sabbath-day . sir j. maynards case truly stated . poor orphans court , or orphans cry , by m.s. leach bribe-takers of jury-men discovered and abolished . — safe guards for sheriffs and bayliffs . cottons abstract of the records touching the king's revenue . sheppards parsons law. case of ship-money , according to the grounds of law. st. johns speech about ship-money . liberties of the miners in the reign of k. edw. . — no proposals of the attourneys of com. pleas for regulat . of the law. serjeant cresholds legacy to his sons . arguments of sages of the law , touching the extent of customs of cities , towns , corporations , &c. leach's proposals for an act to prevent the charge of false arrests . imprisonment for debt against the law of god and man. a compendium of the abuses in the present pract. of the law. proposals for an act for speedy inlarging prisoners for debt . abstract out of the records of the tower , as to the kings revenue . high court of chancery's continuance vindicated . an enquiry , partly approving , partly disproving the pract. of the law. proposals for the principal courts of engl. for keeping terms , &c. star-chamber cases , collected out of crompton , &c. ellesmeres speech touching the post-nati . st. johns arguments , and pyms declarat . upon straffords charge of high-treason . k. james charge against combats , and combatants . — no rules and orders for the court of common-pleas . st. johns speech about ship-money , with m.ss. notes . duke hamiltons case argued by mr. steel . robinsons proposals for new modelling the law. articles of accusat . against justice bramston , and berkeley , &c. by the commons . argument in law touching the bill of the earl of strafford . englands independency on the papal power stated , out of coke and davis . ancient state of the court of requests . doderidges readings of advowsons , and parsons guide as to tithes . arguments on the writ of habeas corpus in the kings-bench . powels direction for search of records in the chancery , tower , exchequer . — no middle-temple readers speech on mag. charta . powell's attorneys almanack . k. james acts of parliament past for the furtherance of religion . safeguard and stay for sheriffs , bayliffs , &c. d. hamiltons case argued before the high-court of justice . articles of direction touching alehouses . orders for the better administrat . of justice . laws divine , and moral for the colony in virginia . diggs , coke , littleton , and selden's conference touching the rights of the subject . articles for the justices of scotland . declaration of nusances of dwelling-houses , with the opinion of the justices as to the law touching bastards . remonstrance to his majesty against ship-money . tithing table . decree in the star-chamber about grain . l. bacon's ordinances for the chancery . — his charge about duels . — no order of keeping a court-leet , &c. with the charge . orders in chancery , in parts . proposals for regulating the chancery . continuance of the chancery vindicat . parts . lawyers last farewel . new case put to an old lawyer . argument proving each subjects right in his goods . j.m. debate in law concerning the militia . warrs corruption of the law debated . rawleighs prerogative of parliam . — his tryal at winchester . l. cokes speech & charge . star-chamber cases , with the causes belonging to that court. brookes reading on magna charta . collection of ordinanc . for the better observat . of the lords-day . civil right of tithes . advertisement to jury-men touching the engl. & heb. witch . fullers arguments in lad & mansels case . commons articles of accusation against bramston , berkeley , &c. — no harringtons form of a common-wealth . rota , or a model of the free state of an equal commonwealth . needhams case of the commonwealth stated in parts . leicesters commonwealth , by parsons , alias doleman . judg jenkins discourse of the inconven . of a long parliam . subjects liberty set forth in the politick power of engl. judgment of the lords against poyntz , darby , &c. for forging an act of parl. seasonable speech in the house of commons , as to the other house . sir john evelyns charge of h. treason against three earls . prerogative of parliam . in engl. by way of dialogue . cooks k. charles's case , or an appeal touching his trial. miltons doctrine & discipline of divorce . — tetrachordon , or d part of his divorce . unlimited prerogat . of kings subverted , proving them accountable for their actions . copy of the commiss . of array granted to marq. of hereford . balls sphere of governm . accord . to law. smiths manner of governm . of engl. no venice looking-glass , or a letter from london to rome , by barbarini . faithful searching word to the parl. ordinances of the lords & commons for abolishing archbishops and bishops . j. goodwins right and might well met . — his anti-cavalierism , or the lawfulness of the war for suppressing that butcherly brood of caval . incend . knaves and fools in folio . an antidote against our unnatural civil wars . remonstr . of the parliam . to the king. englands loud cry for their king. j. miltons doctrine & discipl . of divorce , d edit . — his ready way to establish a free commonwealth with the excellency thereof . castlemains compendium , or a short view of the late ▪ trials in relat . to the plot. pacquet of advice to the men of shaftsbury . withers epistle at random . e. of straffords letters from the tower to his maj. the naked truth . beginning , progress of the sect of arminians . articles of enquiry for the archdeaconry of essex . duels or single combat derived from antiquity into this kingd . silvers paradoxes of defence , proving the true grounds of fight to be in the short ancient weapons . — n. pair of spectacles for this purblind nation , by h.m. blands argument in justificat . of the parliam . members . continuation of remarkable passages , by way of informat . to the parl. forerunner of revenge , or petit. to the k. and parl. touching k. james's death by poyson . the will , & legacies of card. richeleiu . wottons life of the d. of buckingham . petit. of the parl. to his maj. at york . short view of the prelatic . church of engl. j. m. difference about church-governm . ended . north star of engl. aphorisms of the kingd . asserting the parl. to be the moderation of monarchy . pleydells speech touching the church . religion of the dutch , in several lett. causabons question of preaching discussed . l. brook of the nature of episcopacy . tract against usury . cooks k. charles's case , with an additional opinion touching k. james's death . j. miltons tenures of kings and magistrates , d edit . character of a quaker , or the clownish hypocrite . & other tracts finis . libri iuridici & canonici , in folio , quarto , octavo , duodecimo , &c. franc . modii repertorium sententiarum & regularum , itemque dictionum ex universo corpore juris collectarum lugd. elb. leonini centuria consiliorum de dotibus , &c. antw. margarita nova baldi , sive singularia feu repertorium baldi basil . heroldi origines & antiquitates germanicae , viz. leges salicae , alemannorum , saxonum , angliorum , burgundiorum , francorum , &c. bas . joan. seldeni mare clausum , seu de dominio maris lond. corpus juris civilis justinianei , cum comment . accursi , scholiis contii , lucubrationib . gothofredi , glossae obscurior . explicant . cū indicib . s. daoys , vol. lugd corpus juris canonici , cum glossis , ( liber antiquiss . ) forsan unus è primis qui post invent. artis typogr . è prelo prodierit , charact . majuscul . depict . & deaur . pat. did. covarravias opera omnia , cū tractatu de frigiditate in matrimonio fr. jul. clari opera omnia , sive practica civilis & criminal . cum aliis tractat. ib. jo. calvini lexicon juridicum & feudale , cum lucubrationibus varior . gen. franc. suarez tractatus amplissimus de legibus , & deo legislatore . lugd. budaei tractatus de asse , & ejus partibus basil . a large manuscript being a collection of opinions & resolut . of soto , navar-lessius , diana , sayrus , &c. in several cases de matrimonio , with an index .   a. tartagni immolensis consilia juridica , consiliisque aliorum vol. trid. commentaria in , pandect . nov. & vet. & in cod. , , additionibus clarissim . illustrata , unà cum authoris vita & opinionib . passim citat . vol taur egid. bellamerae in libros decretales praelectiones , vol. lugd. luc. de pennae commentaria in libr. poster . cod. just . in quibus tractatur de magistratibus francorum , & quantum different à magistratib . romae an. alciati vol. operum , continens comment . in titul . de jurisd . judicum , fr. g. tholosani opera omnia ad jus pontificium spectantia , duab . part . lugd. dom. fusarius de substitutionibus in genere , viz. de vulgari , pupillari , &c. col. pet. rebuffi praxis beneficiorum & praxis cancellaria cum indice . lugd. tho. cormerii codex juris civilis romani , unà cum jure civili gallico . col. b. fernandi lucubrationes de matrimonio , arbor consanguinitatis , &c. lugd. eman. costae opera omnia juridica de rebus testamentariis lugd. pet. fontanellae tractatus de pactis nuptialib . & capitulis matrimonial . col. bapt. boiardi additiones & annotat. in practicam criminal . j. clari. par. fr. de caldas pereyra syntagma de universo jure emphyteutico franc. jo. mynsingeri apotelesma , sive scholia in libros institut . justiniani bas . g. saraynae singularia clarissim . doctor . qui hactenus de jure responder . lug. b. cepollae opera omnia juridica , viz de servitute urban . rusticorum , &c. ib. hieronymi cagnoli senatoris sabaudiae opera juridica , vol. ibid. m. socini commentaria in jus canonic . uná cū tractatib . de visitat . vol. ven. emyl . ferretti praelectiones in titul . de acquirenda possessione , &c. lugd. fr. zypei consultationes canonic . ex jure noviss . conc. trid. deprompt . ant. jul. caprae paraphrasis in pandectarum libros justiniani bas . gul. duranti speculum juris civilis , cum additionibus baldi venet. nic. garcia tractatus amplissimus de beneficiis cardinal . s. concil . trid. col. sebast . medicis summa decretorum peccatorum , haeresum & virtutum ven. feliciano de solis commentariis , de censibus lib. franc. g. redoani opera , sive tractatus de rebus ecclesiasticis non alienandis col. justiniani institutiones juris civilis , graecè per theophil . antecellorem . bas . mart. bonacinae tractatus de clausura , de simonia , &c. in º lugd. arn. vinnii commentaria in institutiones imperiales justiniani , º amst . aug. barbosa de canonicis dignitatibus & benefiarciis cathedralium lugd. — collectanea bullarii aliorumve summorum pontificum constitutionib . ib. lud. grempii codicis justiniani methodica tractatio franc. fr. raguelli commentarius ad constitutiones & decisiones justiniani paris le maistre de bonis & possessionibus eccles . de veteris censib . sacerdot . ib. emyl . galli tractatus de exceptionibus in successionibus ab intestato col. — collectanea doctorum de variis questionibus in foro eccles . versant . ib. guid. papae decisiones juris , annotationibus steph. ranchini lugd. barth . ugolinus de censuris romano pontifici reservatis venet. card. paleotus de sacri consistorii consultationibus ibid. edm. merilii observationes de justitia & jure paris gasp . lotti consilium de finibus & qualitate finium mutin . d. hartmanni & d. simonis questiones juris de different . feudorū , vol. lip. — ejusdem questiones juris tam romani quam saxonici ibid. sim. maioli de irregularitate , & aliis impedimentis canonic . tractatus rom. ant. bullei decas miscellanea de tribus generalissimis preceptis juris brem . matth. wesenbeci commentarius in librum codicis witeb . step. d'avila de censuris ecclesiasticis tractatus lugd. paul. squillante de privilegiis clericorum in curiis utriusque neapol . b. automne la conference du droit francois avec le droit romain paris la practique de masuer par anton. fontanon ibid. pandectes , ou digestes du droit de france a lyon la d partie des notables questions de du droit de la parl. de tholose par. corpus juris civilis , cum annotationibus , & capitulis rubris , vol. lugd. volumen secundum separatim ibid. corpus juris canonici , cū glossis & annotationib . litera gothica , vol. par. geo. de nigromonte tractatus de jure venandi , aucupandi , piscandi , con. joan. borcholten in libros institution . juris civilis commentaria paris corpus juris civilis argumentis & notis pacii illustratum , vol. in o. gen. pet. monetae tractatus de decimis , de optione , de distributionibus , º col. joan. lancelotti institutiones juris canonici ibid. tho. lansii de principatu inter provincias europae consultatio amst . budeus de asse , & ejus partibus breviarium col. — ejusdem in pandectarum libros annotationes bas . ant. negusantius de pignoribus & hypothecis lugd. tho. beneuentani praxis episcopalis col. canisii summa juris canonici paris — alter cum appendice antw. bern. dias regulae juris cum ampliationibus lugd. decretales epistolae summorum pontificum a greg. papa collectae paris j. harprechti commentarius in titulum de emptione & venditione tub. corvini enchiridion , sive institutiones imperiales per erotemat . explic . am. vinnii in institutionum elementa commentaria ibid. justiniani institutiones juris cum rubris , º , gilt letter'd ibid. phil. decius de regulis juris , unà cum comment . muxellani de regulis lug. enchiridion , sive rubricae omnes caesarei & pontificii juris bas . praxis curiae admiralitatis angliae lond. — alter ejusdem editionis ibid. modus legendi abbreviaturas in jure civili & pontificio col. gul. grotius de principiis juris naturalis cantab. sam. puffendorfi elementa jurisprudentiae universalis ibid. justiniani institutiones doctiss . script . notis illustratae gen. wolf. sigismundi trismegistus canonicalis , sive nomenclatura canonica finis . the kings grant of privilege for sole printing common-lavv-books defended and the legality thereof asserted atkyns, richard, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing a estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the kings grant of privilege for sole printing common-lavv-books defended and the legality thereof asserted atkyns, richard, - . [ ], p. printed by john streater, london : . attributed by wing to r. atkyns. reproduction of original in the st. john's college library, cambridge university. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng prerogative, royal. law printing. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - ali jakobson sampled and proofread - ali jakobson text and markup reviewed and edited - pfs batch review (qc) and xml conversion the kings grant of privilege for sole printing common-lavv-books , defended ; and the legality thereof asserted . london , printed by john streater , ▪ the kings grant of priviledge for sole printing common-law-books , defended , &c. the principal exception against the grant of priviledge before mentioned is the slander of a monopoly ; and the principall foundation on which it stands supported and justified is the kings prerogative ; and therefore those two matters , a monopoly and the nature thereof ; and the kings prerogative and the extent thereof are necessarily to be first considered . i consider a monopoly as it is ( or was ) at the common law before the stat. jac. the matter in question being of a grant made before that statute ; and the thing granted excepted out of that statute . 't is true , a monopoly is ( as many other ungrateful terms are ) taken primarily and generally in the worst sence , to signifie something unlawful , against the freedome of trade , the liberty of the subject , &c. and the word is thereupon also forced and extended ( beyond its literal signification ) to comprehend every sole dealing or exercising of that which others are restrained to use . and to be termed a monopoly , is at this day an imputation , as if the unlawfulness thereof were necessarily to be presumed and implyed . whereas it is most clear , that all monopolies are not against law , some being reasonable , useful and beneficial to the publick , and some necessary ; and this necessity and benefit to the people recompenceth the restraint of their liberty , and taketh away the unlawfulness thereof . all patents of priviledge for the sole usage of new inventions are monopolies undeniably , yet is it necessary they should be granted for the encouragement of industry and invention ; the communicating whereof to publick use , is a publick and general benefit , though the making the invention should be perpetually appropriated to the inventor . all or most of the ancient offices were at the first ( and are agréed to be ) direct and plain monopolies in their natures , and are now found so to be in their mischievous consequence to the generality of the people , whose charges do but enr●ch a single person sometimes for performing that which is needless ; or if needful , might be performed by the persons concerned themselves without charge . nevertheless , such offices having béen created originally upon reason of use and benefit to the publick , for encouragement of learning , diligence or fidelity , or such like motives to his majesties royal predecessors by whom they were erected , have from age to age béen approved and continued as they now are , ( and are excepted by name with this priviledge in question out of the aforesaid stat. jac. ) as unquestionably lawful . it hath been said , that ancient offices are established and made lawfull by time and custome , which is part of the law . to which i answer , that a monopoly is an evill of that nature as could not be justified by custome , or by length of time , if it were not ex rationabili causa usitata , a benefit to the people in recompence of the restraint of their freedoms : for 't is the reasonableness of benefit that justifies the thing , and not time or custome ; in consuetudinibus consideranda est soliditas rationis , non diuturnitas temporis . in like manner a man may by vsage or reservation claim the sole priviledg of kéeping a common mill , a common bake-house or brew-house within a certain precinct ; for this may have commenced originally ex rationabili causa , by bargain or agreement to be made at the owners charge , and for the inhabitants ease and benefit , which is a recompence for the restraint of their liberty of using the like . e. . . the case there is , that the king had granted a charter of priviledge to the lord or owner of a haven , that such ships as anchored or entred there for harbour , should unlade there only . this and the precedent cases are plain monopolies ; yet because they stand upon equivalent benefit , and the ships had harbour and safety from the lord of the haven , 't was therefore allowed a lawfull charter . from which cases i infer , that before the statute a monopoly might be lawfully erected , because it might be beneficial to the publick , and was permitted in special cases . and with this agréeth the learned grotius in his book de jure belli & pacis . monopolia non omnia cum jure naturae pugnant , nam possunt interdum à summa potestate permitti justa de causa , &c. and he instances the practice and permission thereof in the roman state , ( the pattern of governments ) and the holy story of joseph touching this matter . a monopoly is then unlawful , when thereby the people are restrained in their lawfull trades , or in the exercise of what they have right to use , without general benefit or recompence for the same : but the priviledging particular persons to exercise a particular imployment which others never did use , nor have right to use , and the generall use whereof would be dangerous , and the restraint of the use safe for the publick , cannot be unlawful ; for the reason of that unlawfulness fails , cessante ratione legis cessat lex . now for the prerogative ( which is a copious subject ) i shall only mention so much touching the same , as i conceive most proper to the matter in hand . the king hath prerogatives of severall natures , and grounded upon severall reasons ; some in respect of his own royal estate and person ; others in respect of his office and magistracy , for the better government of his people : for the king as supream magistrate hath a general trust and care of the peoples safety , to prevent , as well as to deliver from publick evils . rex &c. ratione dignitatis regiae ad providendum salvation●m regni circumquaque est astrictus . now providentia is ( properly ) futurorum ; whereby the king is to use all means to foresée and prevent mischiefs within his kingdom . for this purpose , and for the enabling him to perform this office and trust , he is by law endowed with several transcendent prerogatives , some known , and some unlimited and unknown which are jura summi magistratus , as great for weight , and as infinite for number as the contingencies may be wherewith the peoples safety may be affected . the extent of the kings prerogatives , such as concern their own personal rights , or the rights of their estate , are sometimes disputed , and have sometimes béen limited and restrained by their own consents in parliament . but those touching the preservation of the publick have never been limited , nor ought to be disputed or lesned ; and if so , the intended limitations and restraints thereof have been adjudged void because these prerogatives are inseparable from the crown . hence it is , the king can dispence with laws , can pardon offences , can licence matters prohibited , can prohibit matters tolerated , and can priviledge , restrain , or qualifie new accidents , as he in wisdome and deliberation shall judge expedient and best for the publick good . which iudgment and deliberation is peculiar and proper to the king , who alone comprehendeth the estate of publick things , and it is a duty and consequence of his supream magistracy . now printing in every mans reason and observation is , and in the act for regulating printing is prefaced to be matter of publick care and great concernment . these things being premised , i shall only state the case truly as it is to be understood touching the priviledge in question , and then the application will be obvious . in the reign of king hen. . the art of printing was first invented . and as some manuscripts relate , the same king hen. . purchased the first discovery of the art , and thereby became proprietor thereof at his own charge ; whereby the same came to be taught and used in england , but for the printing of such matters onely as the king licensed and priviledged , and by the sworn servants of the king onely , and in places appointed by the king , and not elsewhere . by the later end of the reign of h. . the invention was come to some perfection , and several books were then printed here cum privilegio , and others brought over printed from beyond the seas ; but being few in number , and the prices thereof excessive , the same was remedied by the stat. h. . cap. . the state at that time taking consideration of the growth of printing , and the danger and consequences that might ensue to the king and people by printing the lawes of the land , that thereby errors and seditions might be divulged and insinuated , and other mischiefs happen to affect the the people , thought fit thereupon to commit the printing of the lawes to the care and trust of some particular persons whom the king by patent priviledged to print the same , with a clause of restraint to all others from presuming to meddle therein . all succéeding kings and queens of this realm have upon like considerations mentioned in their grants , and other considerations of state , in wisdome thought fit to continue the said priviledg in the hands of some persons in whom they consided , with like clauses of restraint as before . the dates and successions of which grants are as followeth . the king granted a patent of sole priviledge to print law-books , to tottell for . years , with restraint to others from presuming to print his lawes . the quéen renewed tottells grant for life . the quéen granted like patent of priviledg to yersweirt clerk of her signet , for years . the queen granted a new patent of like priviledg to weight and norton for years . the king granted a new patent of like priviledg to john moore clerk of his signet for years ; which patent is still continuing . these priviledges ad imprimendum solum , have continually béen enjoyed according to the purport of the said grants ; saving the interruption forced upon the presse after . in the times of the late troubles , whereby sedition and treason came to be printed openly , and continued so to be till his majesties restauration . this is the first peaceable age wherein the kings prerogative , in this matter of printing the lawes , was ever questioned , or the aforesaid priviledges charged with the imputation of monopolies . and whether they be such monopolies as are against law , is the present question . for the justifying the lawfulness of this priviledge , i offer the reasons ensuing . . that the king hath as absolute power to prevent evils foreseen , as he hath to reform them which happen unforeseen . and i conceive it clear , as he may forbid the exercise of any invention , which upon the permission thereof shall prove or become a nusance , or common mischief , so he may qualifie , or wholly prohibit the first use of it , out of a prospect of the mischief . watchfulness and carefulness are the duties required of a good prince ; to watch , is , that he may prevent and obviate dangers . now experience hath discovered to us the dangers and mischiefs of the liberty of printing ; and , though the excellency of the invention cannot be denyed , yet , whoever will consider it , shall find , that factions and errors in matters of religion , and principles of treason and rebellions in matters of state have been more insinuated and fomented by the liberty of the presse , then by any other single means . so it may seem a question ( impartially considered ) whether the use of printing recompenceth the mischief by the liberty and abuse thereof . therefore the a father observeth excellently well , the matter of books seemeth to be a thing of small moment , because it treats of words ; but through these words , come opinions into the world , which cause partialities , seditions , and wars : they are words , it is true , but such as in consequence , draw after them hosts of armed men. now certainly , had the king at the first discovery of the invention of printing , foreséen the vse thereof a likely means of disturbance to the peace of the church or state ( as the liberty and abuse thereof hath proved to both ) . it had béen in the kings power , for the peace and safety of both , to have prohibited the vse of printing wholly . . as upon the reason aforesaid , the king might at the first have refused to have received the vse of printing at all into his dominions , so much more reasonably might he restrain the general liberty and vse thereof , not to extend to matters of state or law , these being peculiarly within his concerns , and of more apparent danger to the peace of the state. some states have not suffered their laws at all to be published or known . there might be policy in this , though it seems unjust ; yet on the contrary , for a general liberty to publish the laws is neither honourable nor safe . the mean betwixt these extreams hath been practised by the kings of this realm , not to restrain the printing of the laws wholly ( as they might have done ) nor yet to give a general liberty to every man for the doing thereof ( which might prove unsafe ) but to priviledge select persons only to do the same , who might be answerable for misdemeanors and defects therein . . though the art of printing was discovered sometime before the reign of e. . from whom the first patent of this priviledge appears granted , yet were the presses all then licenced by the king ; and none , or no considerable book of the law was printed before that time , the art not being come to perfection : so that the first patent of this priviledge could not be pretended a monopoly , or illegal , none then having the trade , or right of printing the laws to be detrimented thereby . . the king having at the first beginning of printing , by his lawful prerogative , and upon just reason placed this priviledge of printing the laws solely in the hands of particular persons , to prevent mischiefs which might ensue upon a general liberty given to print the laws ; and the said priviledge being then not unlawful , because no restraint of any thing then practised or exercised , or which any one had right to exercise : and having ever since so continued , and the people generally neither intitled to the right or vsage of printing the laws , remains grantable as at the first by virtue of the same prerogative , and for the same ends , and with the same innocence from injuring any one . . besides the reasons before mentioned , ( of security to the kingdome , against innovations , or false construction of the laws , either by the designs of authors , or mistake of printers , which is worthy the princes care , and those he entrusts with the printing of the laws to prevent ) the king hath ( as i conceive ) a peculiar right and property ( not only in the art and invention of printing by purchase ( as before hath been said ) for in that i lay no great weight but ) in the laws themselves , and in the publishing thereof , which cannot be taken from him , or assumed by any subject without his leave . 't is true , the people have also a right in the laws ( as they had before printing was known ) not to print them , but to receive the fruit of them from the kings hand . but the king is the repository and proprietor , and is entrusted with the promulgation and execution of the laws . there is lex scripta & non scripta . the written laws are records , &c. which are recorda & brevia domini regis , and are reckoned inter thesauraria regis , as the chief and principal things wherein he hath property . but the unwritten laws , which are grounded upon custom and reason , &c. are yet more properly the kings then the other , for these are in his brest . the written law is reposited but in arca or thesauro regis , but the laws unwritten are in pectore regis . in scrinio pectoris , saith fortescue . from whence i infer , that these laws and records which are so peculiarly the kings in property and dispensation , ought not to be published , or numbred , or interpreted but by authority from him ; and the printing thereof is of the kings free pleasure , and not the peoples right , and consequently the priviledging some to print the law is the kings grace , and the restraining others from that liberty not any wrong . . if no material reason could be offered in this case , to assert the kings right in granting this priviledge , yet there want not authorities to justify the same . . the constant usage and practise , without exception from the first settlement of printing , as appears by the succession of patents before mentioned . in the argument of darcy and allens case , one great reason against that patent , was , that the like had never been granted before . but here the like hath ever béen granted , ever since the printing of the laws , and the like ( or any ) exception thereunto never heard of before . . the general allowance of the judges in the argument of darcy and allens case , where this patent was cited as a president , and holden lawful , & necessary pur le peace & safety del realm , nemine contradicente . . the stat. jac. cap . was passed purposely to suppresse the then present , and to prevent the future granting of monopolies , and yet expresly excepts patents of priviledge for sole printing of books with several branches of the militia and offices , and other like things of the highest concern to the crown . and i cannot omit to observe , that this priviledge of printing is the first thing named in the exception , as if the parliament then had it first and principally in their care ; and that this patent now in question was the same patent then in force . . the stat. . jac. before mentioned , and also the stat. ▪ car. . touching the regulation of printing , provide for patents of priviledge for printing , granted , or to be granted ; which they would not have done , had they not approved and intended to encourage like grants to be made . and also the last mentioned stat. fol. . expresly prohibits under penalties printing or com-printing of such books , the which any other hath sole priviledge to print by letters patents ; which implies , the parliament intended to support and establish such as lawfull ; and it cannot be reasonably thought several parliaments should so expresly provide for this priviledge of sole printing , if they had not designed to secure it from the censure of a monopoly . it hath been objected , that this patent hath the mischiefs of a monopoly , for thereby the patentee may enhaunce the prices of law-books ; may print the law-books as defectively as he pleases , and may prise mens labours at his own rates , &c. . the prices of books may ( if occasion shall be ) be regulated by the chancellor , &c. per stat. ▪ h. . cap. . . defective printing , or other abuses in or about the printing of the laws , is a breach of trust , and punishable in the patentée , and a cause of forfeiture of his patent , as mis-execution , or defective erecution is a cause of forfeiture of an office. . if these objections were true , and could receive no answer , the mischiefs pretended are not comparable to the benefits received , or the security which redounds to the publick , by restraining the general liberty of printing the laws . the words of the patent are said to be too large and unreasonable , to priviledge all books concerning the common laws . for herein all manner of books whatever are included , forasmuch as every book more or less compriseth something of the common-law . this is an unreasonable construction of the words ; for books principally treating of another subject , which in the proof , or proceeding thereunto , only mention some maxims or principles of the law , can only be said to contain in them some chapter or page ( but cannot be termed books ) concerning the law , the law neither being their subject or design . denominatio ●umitur à principali . . if this patent touching the sole printing of the laws should in this age have the sentence of a monopoly against law , in consequence other patents of priviledge of like nature for sole printing of books ( that is to say ) the patents to the kings printers for printing proclamations . the patents for printing the bible , testament , common-prayer , &c. the patents of both the universities of this kingdom in reference to printing . the several patents to the company of stationers for sole printing the primer , psalters , singing psalms , school-books ; and that of almanacks , the words of which are , all and all manner of almanacks , in terminis such as be the words of the grant in question , and are all priviledges of the like nature and authority ( but of lesse reason and use ) must have the same fate to be overthrown therewith . . the usage of other neighbour kingdomes and states , may in this matter enforce the reasonableness of the like vsage here . in france , germany , holland , &c. sole priviledges of this nature are usually granted , and solemnly observed . the forms whereof are to be séen before several books printed within those kingdomes ; to this effect , ( viz. ) sancta caesarea majestas diplomate suo sanxit , ne quis praeter a. b. c. d. intra sacri imperii romani regnorumque , &c. fines , these and those books in toto vel in parte excudat , &c. sub confiscatione , &c. in like manner , ordinum hollandiae , westfrisiaeque singulari privilegio cautum est , ne quis praeter a. b. & c. d. ( these and those books ) imprimat &c. sub confiscatione , &c. the form of the french kings priviledges , recite his prerogative , that no book can be printed within his dominions , sans avoir sur ceo nos lettres à ce necessairs , that thereupon he does permit such persons to print such books in such manner , &c. faysans d' offence à touts imprimeurs , &c. d' imprimer , &c : any of the said books besides the persons priviledged . now forasmuch as the kings of this realm of england are not restrained herein ( in case they might so be ) by any statute since the invention of printing , why should they be conceived to have less right and power to grant like priviledges touching printing , then is practised by their neighbour princes upon the same reasons of law and state , for their subjects safety . it being almost impossible for a prince to rule the spirits and wills of his subjects ( since printing came in vse ) without restraining the presse , which so evidently influences them to evil or good. i only add , that after the long parliament had ( anno . ) opened a liberty to the presse for their first service , to insinuate and propagate principles of rebellion , they immediately found it necessary again to restrain the same ( anno . ) for their own security . the sum of all which is , . that some monopolies may be necessary and useful to the publick , and consequently lawful , . that the king hath prerogative to priviledge such , and is iudge of the matter . . that the priviledge in question is such , and hath been so adjudged by the kings predecessors ever since the reign of edw. . . that there hath been a continued succession of patents of the same priviledge ever since the printing of the laws . . that experience hath discovered the mischief of liberty in printing the laws . . that the king upon fore-sight hereof ( much more upon experience ) might restrain the printing of the laws wholly . . that the king hath a property in the laws , and 't is his grace , and not the peoples right , to have them printed . . that like priviledges for sole printing of books , are practised and used to be granted by all the neighbour princes and states where printing is used . . that in arguments of law , this priviledge hath been cited , and allowed lawful . . that several statutes have excepted and preserved it as lawful . from all which it is ( with submission ) concluded to be so . finis . notes, typically marginal, from the original text notes for div a -e lib. . cap. . parag. . reg. . f. paul servita in his history of the inqu . pag. . anno . this appears by a manuscript thereof in the library at lambeth . e. . e. . eliz. eliz. eliz. jac. a f. paul servita ubi supra , pag. , . eliz. moores rep. . . object . sol. . object . sol. to the honorable the knights, citizens and burgesses of the commons house in parliament assembled the humble petition of the lord major, aldermen, and commons of the citie of london in common councell assembled. city of london (england). court of common council. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason .f. [ ]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing t thomason .f. [ ] estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; : f [ ]) to the honorable the knights, citizens and burgesses of the commons house in parliament assembled the humble petition of the lord major, aldermen, and commons of the citie of london in common councell assembled. city of london (england). court of common council. sheet ([ ] p.) august . . london printed for thomas vnderhill, [london] : . praying that "justice may be done upon offenders and delinquents.". reproduction of the original in the british library. eng law enforcement -- england -- london -- th century -- early works to . great britain -- history -- civil war, - -- early works to . a r (thomason .f. [ ]). civilwar no to the honorable the knights, citizens and burgesses of the commons house in parliament assembled. the humble petition of the lord major, al city of london a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - robyn anspach sampled and proofread - robyn anspach text and markup reviewed and edited - pfs batch review (qc) and xml conversion to the honorable the knights , citizens and burgesses of the commons house in parliament assembled . the humble petition of the lord major , aldermen , and commons of the citie of london in common councell assembled . shevveth ; that your petitioners having heard that such propositions and offers have been lately sent from the house of peeres to this honorable house , which ( as wee greatly feare ) if yeelded unto , would be destructive to our religion , lawes , and liberties : and finding already by experience , that the spirits of all the well-affected party in the citie & counties adjacent , that are willing to assist the parliament , both in person and purse , are much dejected thereat , and the brotherly assistance from scotland as well as the raising and maintaining of forces our selves , thereby likely to be retarded ( all which the petitioners referre to your serious consideration ) and considering our present sad condition lies upon us in a speciall manner , through the incensed patience of the almighty , by delay and want of execution of iustice upon traitors and delinquents . and having an opportunitie yet afforded us to speake , our humble desires are : that you would be pleased so to persist in your former resolutions , whereupon the people have so much depended , and wherein you have so deeply ingaged your selves ( though you should perish in the worke ) that sustice may be done upon offenders and delinquents . and that since we are as willing as ever to expose what we are and have for the crowning of so good a cause , you would be pleased by speedy passing the ordinance hereunto annext , or one to this effect , to put us into a probable way for our and your defence , wherein your petitioners will by the blessing of god be never wanting ; but will ever pray , &c. this petition being presented the . day of august . by the petitioners abovesaid , to the house of commons , was well accepted , and thanks returned by mr. speaker for their care of the kingdomes wellfare , with promise that the particulars desired should be speedily taken into consideration : and to consider of an ordinance to the purpose in the petition mentioned , which was referr'd to a committee . august . . london printed for thomas vnder 〈◊〉 . amicus reipublicæ. = the common-wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. with many other things very considerable for the good of the publick. all which are fully controverted and debated in law. by john march of grayes-inne, barister. march, john, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason e _ ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing m thomason e _ estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; :e [ ]) amicus reipublicæ. = the common-wealths friend or an exact and speedie course to justice and right, and for preventing and determining of tedious law-suits. with many other things very considerable for the good of the publick. all which are fully controverted and debated in law. by john march of grayes-inne, barister. march, john, - . [ ], p. printed by will. bentley, for francis eglesfield, at the marygold in s. pauls church-yard, london : . the first leaf is blank except for fleuron. running title reads: the common-wealths friend. annotation on thomason copy: "may. ". reproduction of the original in the british library. eng law -- england -- early works to . a r (thomason e _ ). civilwar no amicus reipublicæ. = the common-wealths friend: or an exact and speedie course to justice and right, and for preventing and determining of march, john b the rate of defects per , words puts this text in the b category of texts with fewer than defects per , words. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - robyn anspach sampled and proofread - robyn anspach text and markup reviewed and edited - pfs batch review (qc) and xml conversion amicus reipublicae . the common-wealths friend . or an exact and speedie course to justice and right , and for preventing and determining of tedious law-suits . with many other things very considerable for the good of the publick . all which are fully controverted and debated in law . by john march of grayes-inne , barister . interest reipublicae ut sit finis litium ▪ london , printed by will . bentley , for francis eglesfield , at the marygold in s. pauls church-yard . . to the right honourable john bradshaw serjant at law , lord president of the councel of state . right honourable , when i had considered the meaness and weakness of this poor indeavour of mine , and your lordships depth of judgement and understanding ; i was extreamly disheartened and even ashamed to present it to your lordships view and consideration ; much more to begge your lordships patronage for it . but when i had likewise considered , what a sweet harmony of justice , honour , and integrity resides in your lordships breast , and how much you preferre the common good and welfare , before all private interests and relations whatsoever , and not doubting but your lordship might find somewhat in it corresponding with that noble , and truely generous publick spirit of yours ; i was then again imboldened to prostitute it before your lordships feet , humbly begging your patronage and protection for it ; and i the rather presumed upon it , because i know it will meet with enemies enough in these times ; such as love not changes or alterations , though for the better , and such i shall not need to care for , or fear ; so your lordship will deign to accept of it , and receive it into your favour ; which if your lordship shall be pleased to do , and to pardon the imperfections of it , it will be a great honour and incouragement to him , who desires nothing more , than to subscribe himself ( what indeed he is ) your lordships , and the common-wealths most humble servant . jo . march . to the reader . reader , when i considered long with my self , what happy times it had pleased god to let us injoy ; i mean these happy times of reformation ; in which men have liberty to discover truths , and to reason what may most tend to the good of the common-wealth ; and in which we have so many patrons , protectors , and advancers of justice , that , which is the onely supporter of all common-wealths and governments whatsoever . and when i had further considered , that somewhat , nay i may say , as much as the present extremities will permit , had been done by our parliament for correction , and amendment , or total expunging of some ill laws ; and much more indeavoured , which i doubt not will be accomplished in due time . i thought it my duty to cast my mite into this treasury ; and to declare and set forth somethings of our law worthy of serious consideration , and ( if i mistake not ) of reformation too . that which i offer is against some ancient practises or proceedings , and against some principles of our law ; and here i know it will be said to me , that contra negantem principia non est disputandum ; they are of so high a nature they ought not to be discussed ; especially having been ancient received uncontrolled laws in all ages . to this first i say , that a common error cannot make a law , no more than custom against reason ; there is no building of a law where reason is not the foundation . and therefore i hope , that if all , or any of those things which i have offered to consideration , shall be found light in that ballance , that they will find no allowance or approbation . but here some will say to me , as my lord cook saith upon the like occasion , qui rationem in omnibus quaerit , rationem confundit . to whom i say , that this may hold well in some things , and in some arts and sciences ; but , under favour , it ought not to be so in law ; law , if it be just and reasonable , binds men to obedience and submission thereunto , but it is unjust and tyrannical , and obliges not to submission , if it be unreasonable ; and that law must needs be suspected to be such , the reason whereof must not be inquired into . and littleton fol. . saith , that per rationes pervenitur ad legitimam rationem , reasoning is the way to find out the legall reason : and so likewise it is to discover the unjustness or opposition of any law to the common good . we have one rule in law , that the publick good and wel-fare is to be preferred before the private , and certainly that law that crosses that rule , is a very unjust and unequal law . all laws ought to have this for their basis , and their onely end and aim , the common good and safety . and that law is most rational , which looks most that way . and therefore certainly it is no confounding of reason ▪ but rather the advanceing of it to its perfection , to lay the law to this line , to put it to this tryal ; whether such or such a law , be most for the publick good and wel-fare , or not ? if it be , to continue it , if not , to abrogate and null it . we have another rule , that interest reipublicae ut sit finis litium . and i am certain , that you will find some of those things , which i have offered to consideration , ( that , as it much concerns the common-wealth , that strifes and controversies be ended , that peace and unity may be preserved : ) much tending to that end , and agreeable with that rule . and certainly that law , which most avoids and provides against contentious suits , and most indeavours the support of peace and quiet in a common-wealth , is the best and most reasonable law . and now to conclude , reader , i know that by this small work i shall contract the odium and ill will of many of my profession , who will cast in my teeth , that this is a bewraying of my own nest ; and a slinging dirt into the faces of our great and learned sages of the law ; or rather into my mothers face , whose milk i have suckt , and by whom i have been educated , and brought up to some small understanding thereof . to such i shall say ; that none more honours the law than my self , which i take in the general , to be as just and as perfect as any humane law in the world , yet i cannot judge it so absolutely perfect , as to have no fault or blemish in it , for that were to attribute absolute and infallible perfection in judgement to the makers ; which we know is not to be found on earth in any humane race . you know what the apostle saith , the first of the cor. . . for we know in part , &c. and if we know but it part , certainly our actions must needs be full of imperfection . and i hope none will judge me to love my studdy the less , because i desire to keep it clean ; gold is the purer for being refined : and the tree grows the better for pruning , and cutting off the exuberant and unnecessary branches , which suck the sap from the body , and are useless for any thing , but the fire themselves . if we have any hard and unreasonable branches of law , it is just to take them away , to lop them off , the body of the common-wealth will thrive the better ; and if that flourish , certainly lawyers must thrive too , and be in as great reputation as ever . for no living without law , and no better or more just law in the generall in the world , than the municipal law of england ; he approves the use , that labours to take away the abuse . nor am i single or alone in this indeavour of mine ; some have gone before me , and i doubt not others will follow , in a work of so great consequence , and tending so much to the common good . but not to hold you too long in an epistle , where the work is but short , if any notwithstanding what i have said , shall be offended with me ; it shall not much trouble me ▪ for i am resolved to be a friend to the common good , while those men seek their own good onely . i shall say no more but this ; amicus plato , amicus socrates , sed magis amica respublica ; onely i shall subscribe my self the faithfull friend and servant of the common-wealth of england . j. march . a table of the several questions . . whether it be reasonable , that he , who is seized of lands in fee-simple , to him and his heirs by descent , or gift , should have the absolute disposing power of the whole , and to disinherit his heirs ? pag. . . tenant in tail , with remainders over , suffers a common recoverie , whether this in law , or conscience , ought to bind the issue in tail , and the remainders over ? pag. . . whether it be consonant to reason , conscience , or for the good of the common-wealth , to arrest mens persons , and to detain them in prison for debt ? pag. . . whether the high court of chancerie , as the practice is there , be not a very great grievance , and burthen to the common-wealth ? pag. . . whether collateral warrantie stands with reason and conscience or no . pag. . . whether it be consonant to reason or conscience , that any mans plea should be adjudged nought , and avoided at any time for any matter of form , false latine , double plea , departure , or any other defect whatsoever , the case and matter it self sufficiently appearing upon the record , for which the action is brought ? pag. . . whether the many sorts of tedious and long conveyances now in use , stand with reason , and the good of the common-wealth or not ? pag. . . whether it be a just and reasonable law , that a child , born before marriage , and shortly after marriage happening , should be a bastard or not ? pag. . . whether tryal by jurie , as it is now in use , be agreeable to reason , and for the good of the publick or not ? pag. . . whether it be consonant to the word of god , or reason , that a man should lose his life for theft , and should incur so great a forfeiture and penaltie , as loss of all his estate , and corruption of his bloud . pag. . . whether it be a just and reasonable law that infants , under the age of twentie one years , shall not be charged with their debts ? pag. . . whether clergie be agreeable to reason and justice or no ? pag. . . whether the law , that a man shall not suffe death for man-slaughter , be not against the word of god ? pag. . . whether it be a reasonable law , that a man shall not have counsel upon an indictment of treason or felonie ? pag. . . whether actions for slanderous words , being meer contentious suits , ought in reason or conscience to be so much countenanced as they are ? pag. . . whether it be a reasonable law , that actions personal should die with the person ? pag. . . whether the law of judgement of penance , or pain fort & dure , against a man who is indicted of felonie , and stands mute , be agreeable to reason and conscience or not ? pag. . . whether the law of forfeiture of goods vvrecked at sea , be a reasonable law or not ? pag. . . good advise in case of making last vvills and testaments . pag. . amicus rei-publicae . the common-wealths friend . the first thing that i have purposed to discisse or treat of , is touching him that is seized of lands in fee-simple , and his disposing thereof ; and therein i shall onely propound this short question , that is ; whether it be reasonable , that he who is seized of lands in fee-simple , to him and his heirs , by descent , or gift , should have the absolute disposing power of the whole , and to disinherit his heirs . i do acknowledge the law to be , that he may dispose of the whole at his pleasure , and that a condition annexed to restrain him from it , is nought . for it is against the absolute purity of a fee-simple , that he should not have power to alien it . litt. sect. . for if such condition should be good saith litt. then it ousts him of all the power which the law gave him , which should be against reason , and therefore the condition is void . but if the condition were such , that the feoffee shall not alien to such a one , naming his name , or to any of his heirs , or of the issues of such a one , &c. or the like , which conditions do not take away all the powr of alienation , such condition is good . another reason that such condition is nought , is , because that he , who hath departed with all his estate to another , and hath no hopes of reverter , may not in reason annex such a condition to restrain the feoffee or alienee from such alienation . this i allow to be the law ; yet i beseech you give but leave to examine these things according to right reason , and judge according to that which may make most for the good of the common-wealth , and then i conceive it will be thought very hard , that any man should have an absolute disposing power of the whole , and disinherit his heirs . i intend this onely of a fee-simple descended from an ancestor to another , or of a gift to a man and his heirs ; for in case where a man , through his own labour and industry , hath purchased such an inheritance , it seems more reasonable for him to have the absolute disposal of it as he shall think fit ; for i know no reason , but that he who bought , may sell ; but where land descended to me , or was given to me and my heirs , in such case , for me to rob my heir of all that i never laboured for , and to give it to a stranger , seems to me unreasonable . i say , that he should have an absolute disposing power of the whole , seems unreasonable , but that he should have power to dispose parts seems to stand with reason , so he leave the third part to descend ; for otherwise he shall be utterly unable to make a joyncture for his wife , to advance his children in marriage , or to pay his debts ; all which , a man is bound in conscience to do : therefore it were very unreasonable that he should be so fettered and bound in his estate , that he were not able to perform them . i am not ignorant , that when i give lands to a man & his heirs , the law saith , that the word [ heirs ] is by way of limitation , not of purchase ; yet when an estate so descends , or is given as aforesaid , the heir by the intention of the ancestor , and the donor , ought to have an estate in point of interest , as also in conscience , after the death of his father . for if a man should demand of such a one who intends to leave his lands to descend to an heir , or of the donor , whether he intended that his heir , or the donor should sell or give away the estate so descended or come , through their goodness , care , and providence , to a stranger , i know their answer would be , that they intended not a disinherison of the heir , but that the estate should descend & go to their heirs ▪ with the same freedom it descended or came to them ; but i would not be-mistaken , for i intend onely a third part to descend , for the reason aforesaid . but now let us examine the reason of the law afore-said ; and where the inconvenience lies . the reason is , that 't is against the purity and absoluteness of a fee-simple , not to have such disposing power ; where lies the inconvenience , that it is against a maxim of law ; nothing of prejudice either to the publick , or to any private or particular person . and then examine the reason of the other side , why such a tenant in fee-simple should have power onely to dispose of two parts , and leave the third to descend to his heir : because , it would agree with the intention of the ancestor , and likewise prevent the beggering of the heir , a thing too common with profuse and prodigal ancestors in these daies . so that i conceive it is evident to you , that the inconvenience lies on this side , and whether it is better to continue a maxim without reason ; or to alter it upon good grounds , i leave to the consideration of our sages ; and of this onely thus much ; the next thing i have to treat of is , common recoveries ; concerning which i shall propound this short case and question . tenant in tail , with remainders over , suffers a common recovery , whether this in law , or conscience , ought to bind the issue in tail , and theremainders over ? it is true , that through custom and long continuance , this is now become the common assurance of the land ; and i am not ignorant that this point received a full resolution by the other judges in marie portingtons case , in my lord cooks tenth book , that such recovery was good and binding , not onely to the issue in tail , but those in remainder likewise . yet i hope a man may now with freedom dispute it , since all conscionable honest men , that ever i met with , oppose it ; and i dare say , that policy and private interest first made this conveyance lawfull , or at least to seem so . and being that in the discourse of this case , it will be necessarie to know what the law was before the stat. of . e. . of intails , and the mischief of that law , which caused the making of that stat. for a remedy ; it will not be amiss if i cite the stat. wherein we shall find both the one and the other ; the mischief , and the remedy ; and then it will be easie to judge whether the mischief against which the act of . e. . was provided , doth not still continue by common recoveries , notwithstanding the remedy . but before i cite the stat. i cannot but put you in mind , that it hath been desired and proposed by some in print ( who either never read the said stat. or did not well understand it ) that the said stat. might be taken away ; the mischief at the common law revived , and the remedy suppressed . all that i shall say to such , is , that that law ( if we will believe our judges and sages of the law ) was made by very sage and wise men ; & therefore we ought to judge it to be made upon very good grounds and reasons , and so not to be repealed without better reason ; but i need say no more , for i doubt not you will find upon the reading of it , that it was made upon solid and profound reason , and so not to be altered upon any clarks or attornies motion . . e. . cap. . in gifts in tail the donors will shall be observed . first concerning lands , that many times are given upon condition , that is to wit , where any giveth his land to any man and his wife , and to the heirs begotten of the bodies of the same man and his wife , with such condition expressed , that if the same man and his wife die without heirs of their bodies between them begotten , the land so given should revert to the giver or his heir . in case also where one giveth lands in free marriage , which gift hath a condition annexed , though it be not expressed in the deed of gift , which is this , that if the husband and wife die without heir of their bodies begotten , the land so given shall revert to the giver or his heir . in case also where one giveth land to another , and the heirs of his body issuing , it seemed very hard , and yet seemeth to the givers and their heirs , that their will being expressed in the gift , was not heretofore , nor yet is observed . in all the cases aforesaid , after issue begotten and born between them ( to whom the lands were given under such condition ) heretofore such feoffees had power to alien the land so given , and to disherit their issue of the land , contrary to the minds of the givers , and contrary to the form expressed in the gift . and further , when the issue of such feoffee is failing , the land so given , ought to return to the giver , or his heir , by force of the gift expressed in the deed , though the issue ( if any were ) had died : yet by the deed and feoffement of them ( to whom land was so given upon condition ) the donors have heretofore been barred of their reversion , which was directly repugnant to the form of the gift . wherefore our lord the king , perceiving how necessary and expedient it should be to provide remedy in the foresaid cases , hath ordained , that the will of the giver , according to the form in the deed of gift manifestly expressed , shall be from henceforth observed : so that they , to whom the land was given under such condition , shall have no power to alien the land so given , but that it shall remain unto the issue of them to whom it was given after their death , or shall revert unto the giver , or his heirs , if issue fail ( whereas there is no issue at all ) or if any issue be , and fail by death , or heir of the body of such issue failing , &c. and if a fine be levied hereafter upon such lands , it shall be void in the law , and no claim needs , &c. here i have faithfully cited you the stat. word for word ; and what the common law was before the making of this stat. is apparent . estates now by force of that stat. called intails were at the common law fee-simple conditional . so that a man having such an estate before this stat. had power after issue had , to alien , and by that to barre the issue , and likewise him in reversion , and this is said by the stat. expresly to be contrarie to the minds of the givers , and contrary to the form expressed in the gift , and this was the great mischief at the common law . then comes this stat. and provides against the said mischief , that the will of the donor shall be observed , and that such donees in tail shall have no power to alien to barre their issues , or him in reversion . now certainly the best way of argument is upon the law it self , and that is pregnant and plain , that the donee after this stat. had no power to alien to barre his issue , or him in reversion . now i beseech you to what end was this stat. if notwithstanding a donee in tail might by a recovery barre his issue and him in reversion ; certainly had any such thing been known then , as a recovery , it would have been provided against as well as a fine , or otherwise a man might well question the wisdom of the makers of the law , notwithstanding they have received so great an applause by our sages of the law . the law hates vain and unprofitable things ; and had recoveries been known then , and not provided against , certainly no law could be more vain and unprofitable . but now to come to marie portingtons case in cooks tenth book , where this case is largely debated ; there you shall find the original of these common recoveries . there by those that argued against them , 't is said that 't was not invented till . e. . taltarum's case , that such recoveries should bind the estate tail upon a pretence of a fained recompence . to which it was said by the court upon judgement given , that judgement given against tenant in tail , with voucher and recompence in value , shall bind the estate tail , notwithstanding the said act of . e. . be the recovery upon good title , or not ; and that the judgement given in such case for the tenant in tail to have in value binds the estate tail , though that no recompence be had . and this they say was law in e. . time , for which they cite these books ( but here observe by the way , that those recoveries were not invented before that time , as themselves do agree , and of what validity such new invention can be against a stat. expresly against any alienation in such case , let any rational man judge . ) but for the cases they have cited , . e. . tit. brief . . by recovery in value by tenant in tail , the estate tail is barred , and he shall have a formdon of the land so recovered in value , with which agrees . e. . . and . e. . , . octavian lumbards case , tenant in tail grants a rent charge to one who hath right to the land in tail for a release , it shall bind the issue , . e. . . b. jeffrey benchers case recovery in value by tenant in tail , shall bind the tail , and a formdon lies of the land recovered in value , with which agrees . . e. . fol. . . e. . . . for these books thus cited , that such recovery shall bind the issue in tail ; they are to be understood of a recovery upon good title , and of a real , not a fained recompence , for they all agree , that a form-don will lie of the land recovered in value ; so that it cannot be intended of a fained and pretensed recompence . i would fain know of any man , whether ever he heard of any action brought upon such recovery in value , as recoveries are now used ? are they not become the common course , and common way of conveyance for to barre estates in tail , and to cut off all remainders , without any possibility or expectance of recompence in value ? and do not the judges say before that it shall bind be it upon good title , or not , and though that no recompence be had ? so that a pretensed recompence by them must carry away a clear title , and defeat the stat. and the intention of the donor ? so that i do conceive , notwithstanding those books , that such recoveries should bind the estate tail upon a pretence of a fained recompence , was not till . e. . taltarums case . and the case of octavian lumbard , before cited agrees with this difference , between a real , and a fained recompence ; for i do agree , that a recovery upon good title , and a real recompence will barre the estate tail . the case of lumbard , that a grant of a rent by tenant in tail to one that claims a right to the land intailed , shall barre the issue , is , without question , good law , for this is to preserve the estate tail , and this is no fained but a real recompence ; not so in our case . besides , suppose those books should be intended ( as i conceive they cannot ) of a fained recompēce ; can any man say that any use or custom is good against a stat. had such fained recoveries been in use at the time of the making of the stat. of . e. . which no man doth , or can say , somewhat more might have been said for them ; but being invented after , it cannot be with reason that they should be of force to frustrate , yea , and nul , upon the matter , the stat. made before : and certainly ( as i have said before ) the makers of that law would have provided against this mischief as well as fines , had such recoveries been then in being , for otherwise vain and fruitless was that law , as indeed it is at this day . again , by those that argued against common recoveries in marie portingtons case ; it is said , that such recoveries are by divers acts of parliament marked and branded with the blemish of fiction and falsity ; as in the stat. of . h. . cap. . they are stiled fained and untrue recoveries ; and so in the stat. of . h. . cap. . . h. . cap. . and . el. cap. . they are named covenous , and had by collusion ; and therefore it stands with law and reason to provide for the preservation of reversions and remainders , against such fained and false and covenous recoveries . to this objection , and these stat. this answer is given ; and first it is said , that common recoveries is one of the main pillars , which supports the estates and inheritances in the state ; that is , reader : they must unjustly , ( because contrarie to the stat. and the form of the gift ) take away one mans inheritance , and establish or settle it in another , and this is called one of the main pillars of inheritances . but to the statutes ; for that of . h. . it is of gifts in tail by the king to his servants and subjects , for to incourage others and their issues , and therefore recoveries suffered by such tenants in tail , are well taxed by parliament to be fained and untrue , because they did take away the intention of the king . to which i answer , that they are so termed by that stat. not in relation onely to the defeating of the kings intention , but because they are so in themselves fained and untrue . besides are they so termed , because the intention of the king was thereby defeated ; why ? where there is the same reason , there ought to be the same law ; and in this case , is not the apparent intention of the donor in his gift defeated by such recovery contrary to the stat. which saith , that the will of the donor shall be observed . but it is further said in that case , that confirmat usum qui tollit abusum ; and that it was a barre in that case before that act of . h. . made to the contrarie ; certainly if it were an abuse in the kings case , it is no other in a common persons , and it were very happy if an act were likewise made against them in our case ; that we might not have them known for the future . for the stat. of . h. . when a woman advanced by the husband with a competent joyncture in tail suffers a recovery to barre the issues , this may well be said to be by covin. now i beseech you weigh the cases in the ballance of reason , and then judge whether they differ or no . is it not as much covenous for any tenant in tail who takes such estate to him and his issues to disherit his issues by such recovery , contrarie to the said stat. for the stat. of . h. . and . el. of a common recovery against tenant for life ; it may well be termed covenous and by collusion . to this i shall say no more but this , that certainly in our case there is as much of injustice , covin and collusion by suffering such common recoveries , as in any of the former . further it was said by those that argued against these recoveries ; that that opinion , that a common recovery could not be restrained by condition or limitation , was new and of late invention , and never heard before sir anthony mildmayes case . rep. fol. . for it was admitted to be restrained in the case of the earl of arundell . el. dyer , fol. . . and in the argument of scholasticas case , . e. com. . the said point of restraint of a common recovery was never moved : here observe , reader , another new invention , that these recoveries cannot be restrained by any condition or limitation ; so that there must be such a power given to support these recoveries , though against the letter of the stat. and the will of the donor , that no humane invention can prevent . as to the earl of arundels case , it is said that nothing is spoken to it by those who argued the case , and so no authority . to this i say , that certainly had the law been conceived to be such , that such recovery could not be restrained by condition , it would have been then urged , which rather concludes on this part . as to scholasticas case , all that my lord cook sayeth , is this , he much respects the reporter , and attributes due honour and reverence to the judges , but amicus plato , amicus socrates , sed magis amica veritas . though that it was not then thought on by the learned men of that time , yet my lord cook will have it to be law , and prefers his opinion , which he calls truth , which truth so called appears to be onely a new invention , before the contrarie supposed law of that time . and it is further said in portingtons case , that none ought to be heard to dispute against the legal pillars of common assurances of lands , and inheritances of the subjects . and it is likewise said , that at a parliament holden in the raign of q. e. in vernon and herberts case debated before the lords of parliament , hoord counsel with vernon invaied against these recoveries ; who was then reproved by dyer , ch. just . of the common pleas , who said , that he was not worthy to be of the profession of the law , who durst speak against common recoveries , which were the sinewes of the assurances of inheritances , and founded upon great reason and authority ; sed non omnis capit hoc verbum ▪ by this you may easily judge what most supported this assurance : for if lawyers must be silenced , it is no wonder if common recoveries pass for law . i know i shall not pass uncensured , as i have said before , hoords case will be mine , with advantage : but it shall not at all disturb my rest ; for having truth of my side , i care not who is against me : and certainly that councellor that is a councellor of the law deserves the sharpest reproof ; and since non omnis capit hoc verbum , as is said before , let me not be rebuked without reason ; and if any one can convince me in that , i shall with all humility submit to his judgement . lastly , it is said that d. . lib. . cap. . approves common recoveries , to bind as well in conscience , as in law . for my part i conceive that the better opinion there is against them ; and so i believe any man will judge that shall read the chapter , i shall faithfully recite the disputes and leave it to judgement , and therein first the manner and practise of suffering such recoveries ; the demandant shall suppose in his writ and declaration , that the tenant in tail hath no entry but by such a stranger , where neither the demandant nor the said stranger never had possession of the land , whereupon the tenant in tail shall appear , and by assent of the parties shall vouch the common vouchee , whom he knoweth to have nothing to yield in value ( now reader judge whether this be not a meer fiction of a recompence in value , ) and the vouchee shall appear , and the demandant shall declare against him , whereupon he shall take day to imparle in the same term , and at the day by the assent of the parties he shall make default , upon which because it is a default in despite of the court , the demandant shall have judgement to recover against the tenant in tail , & he over in value against the vouchee : and this judgement and recovery in value is taken for a barre of the tail for ever by reason of the recompence ; for by presumption the vouchee may purchase lands . thus you have the practise of a common recovery , which is nothing else but an invention to cut off intails , which hath been the ruin of many a family . but it is reasoned , that although such recoveries , in respect of the multitude of them , be spared , that they stand not with conscience : fo● by the stat. of . e. . when the ancestor is dead , intailed lands o● right belong to the heir , for that he is heir according to the gift . if the● thou be commanded not to covet , 〈◊〉 fortiori , that thou do not withhold thy neighbours house , &c. and although it may be objected , that tha● which is ordained by the law , may be adnulled by the law , there is not here like authority for the one , as for the other , for the tail is created by authority of parliament the most high court in the realm , and the disanulling thereof is by a covenous recovery upon false supposals , ( here you have trueth clothed in plain language . ) then as to another objection , viz. communis error facit jus , that is to be understood that a custom used against the law of man in some countrey shall be taken for a law , if the inhabitants be suffered so to continue it ; but these recoveries , although they have been long used , have alwayes been spoken against ( reader , observe that , who ever thou art ; and then i am sure i cannot justly be blamed : nor need i care to write against that , which hath been always spoken against . ) also this custom could have no lawfull beginning , and an evil custom is to be abolished : also a prescription against a stat. is void : and it is also moved , that in as much as there is no executed recompence that the law hath been taken , that the heir in tail is not barred of his formdon , and although the vouchee may purchase after the issue hath recontinued his own land , that herein is no inconvenience ; for that the issue shall be barred of the recompence in value , in that he hath recontinued his own land again , and so shall not have both . i dare not go so far as to allow a formdon for the issue in such case ( though enough hath been said to make that good too ) by reason of the many inconveniences that must of necessity fall thereupon , but it were happy ( as i have said before ) if such covenous and fained recoveries were taken away by act of parliament . but it may be objected ; that you would have tenant in fee-simple to have power to dispose two parts , for the reasons and intents aforesaid ; and why may not tenant in tail have the same power ? to which i give this short answer , that it is agreeable with the nature of a fee-simple to be alienable ; not so in case of an estate tail , for that is contrarie to the form of the gift , as the stat. is expresly ; and there is no power given by that stat. to the donee in tail to dispose of the estate in any case whatsoever ; and therefore he may not for the advancement of his relations , or satisfaction of his debts , defeat his issue , or in default of issue , those in the remainder , by alienation , contrarie to the form of the gift , and the intention of the donor . and now i shall conclude this dispute with a rule or two in law , and first the stat. said that the will of the donor must be observed in his gift , which stands with the reason and rule of the law , for cujus est dare ejus est disponere ; a man must take the gift with those qualifications , conditions , or limitations , that the donor is pleased to annex to it , and cannot alter it , if so , what becomes of common recoveries ? or how in law or reason can the donee in tail disherit his issues ; note , much less strangers in remainder : as if land be given to a. in tail , the remainder to b. in tail , &c. if a. suffers a recovery , this not onely binds his issue , but him in remainder likewise , which is extream hard and unreasonable , that the law contrary to the rules of law it self , should allow a stranger to do an act to my prejudice , for the rule is , that res inter alios actae alteri nocere non debent , other mens actions ought not to prejudiee a third person , how then can that stand with this rule of law , that tenant in tail should have powr to barre him in remainder by a recovery . another rule is , quod nostrum est sine facto vel defectu nostro amitti , seu ad alium transferri non potest , we cannot lose what is ours , nor can it be given from us without our own act or default , how then can it stand with this rule , that he in remainder should be barred by such recoverie as aforesaid ? i shall say no more , but wait the parliaments leasure ▪ and i doubt not , but this will in due time be altered . the next thing i am to treate of , is concerning the imprisonment of mens persons for debt , and in that i shall propose this short question . whether it be consonant to reason , conscience , or for the good of the common-wealth to arrest mens persons , and to detain them in prison for debt ? i know this is a case in which many men have vented their judgements in publick , and it hath not been without a solemn debate too in the parliament ; so that there is the less for me to do , and therefore i shall be but short in it . what reasons induced the parliament to continue this law , i know not , nor is it for me to examine ; however , i beseech you , let it not be taken amiss that i offer my reasons in it , and leave them to better judgements . in the first place i shall examine what the old law was , and when , and how this law of imprisonment of persons for debt crept in ; for it hath not been always used in england , and i may say in few other places of the world ; and where it is in use , there is care taken that they do not perish in prisō for want of necessary sustenance , but they and their families to be maintained out of their own estates ; and if they have none , the perverse and cruel creditor is to maintain them out of his proper estate ; and not to suffer them to perish for want of food , as they do commonly in england . the body of the defendant was not lyable to execution for debt at common law , for which see . h. . . but his goods , chattels , and corn , &c. by fieri facias , or levari facias within the year , and by the stat. of w. . by scire facias after the year , and by w. . cap. . an elegit was given of the moyety of the land ; which was the first act which subjected land to the execution of a judgement . but the common law which is the preserver of the common peace of the land , abhorres all force , as the capital enemy to it , and therefore against those who committed any force , the common law subjected their bodies to imprisonment , which is the highest execution , by which they lose their liberty , till they had made an agreement with the party , and fine to the king . and therefore it is a rule in law , that in all actions quare vi & armis , a capias lies , and where a capias lies in process , there after judgement , a capias ad satisfaciendum lies ; and there the king shall have a capias pro fine . then by the stat. of marlebridge . and w. . cap. . capias was given in an account , for at common law , the process in an account was distress infinite , and after by the stat. of . e. . cap. . the like proces was given in debt , as in account , for before this stat. the body of the defendant was not liable to execution , for the reason and cause aforesaid , all which you shall find in my lord cooks . book , sir william harberts case . here you see the original of the arresting of mens bodies , and taking of them in execution for debt ; which was by force of those few but ruinous distructive words in . e. . like proces in debt as in account ; these few words have ruined many , and almost numberless persons and families ; who , had they not been cloysterd up in prisons , might have lived to have got estates , and to have been able to discharge a good conscience in satisfaction of their debts , and providing for their families . for the proces by way of capias , or attaching of the person for debt , i know it will be said to me , if you will have that course taken away , what other will you provide convenient for gaining of our debts ? to this i answer , that that which i conceive most convenient in reason , and which hath been already proposed to the parliament , is by way of summons , as the original in the common pleas is ; and upon that ▪ if no appearance be , to have liberty to proceed with all vigour , and to have a judgement against the defendant for not appearing , as if he had appeared , and judgement had been thereupon obtained against him . onely this i must observe , that it is of necessity , that the service of the summons be sworn to , ( as it is in case of a subpoena in the chancery , ) before there be any further proceeding , otherwise , any man living may be abused , and extreamly suffer by the seisure of his estate upon execution , he having had no notice by way of summons of the said action . and this great advantage to the common-wealth there will be by the way of summons , that it will destroy all priviledged places , for a summons may be served , where there durst not be an arrest ; so that then there will be no protection of men against their creditours , but that such as have estates , shall , as in conscience they are bound , pay their debts , and not consume them in a corner , under the guard of any priviledge . the next thing , after the proces , and judgement , that is to be considered of is , what execution is most just and reasonable , and most agreeable to conscience , and the good of the common-wealth in such case ? in this we must consider what the scope , aim or end of the law is in such execution ; and that is , the satisfaction of the debt . then the next question is , which is the most just and probable way to attain to this end ? whether the taking of the body , or the estate ? to this i answer , that certainly the nearest , best , and most conscionable and rational way to attain to that end , yea and most equal too , is by seizing of the estate . the most equal it is certainly , and our law much delights in equalities ; for it is not equal justice that the body ( which is said in law to be the highest execution , and so without doubt it is , and much more to be valued then all worldly goods ) should be captivated and imprisoned , for any worldly pelf , or ingagement whatsoever , body for body , and estate for estate , is the most equal way of justice in the world . and it is the most rational , the readiest and best way for to get a satisfaction of the debt , and it is that which must pay it at last , if ever it be paid ; for this is but a slender satisfaction of the debt . and this great inconvenience he lies under that takes the body in execution , that he cannot , after he hath determined his election by this way of execution , during his life , take hold of his estate too . and heretofore it was a great question , whether if the party died in execution , it were not a satisfaction of the debt ; and though there were much variety of opinion in it , yet certainly the best was , that it was a satisfaction , so that the plaintiffe could not resort afterwards to , or take out execution upon the estate ; and for my part , i think it was the most just law , that he , whom nothing but the body could satisfie , should have no other satisfaction , this occasioned the making of the stat. of . of king james ; which provides remedy against the estate , notwithstanding the persons dying in execution . but i say , having thus determined his election by taking the body in execution , he is upon this great disadvantage that the debtors estate is free , and that which he would not take to satisfie his debt , happens for the most part to be wasted and consumed in prison . 't is frequent , that a wilfull creditor finds as stubborn a debtor ; and since nothing will satisfie him but the body , he must take that for satisfaction ; so that it is apparently contrarie to reason and common policie . 't is likewise under correction , the most conscionable way too ; and the contrarie , which is the taking of the person , the most unconscionable , especially as it hath been practised in england , for either the debtor hath an estate , or he hath none , if he hath an estate , it is all the justice in the world that that should be responsible for his debts ; if he hath none , what can be more unconscionable or unjust , than to keep his body in prison . lex non cogit ad impossibilia , the law requires not impossibilities at any mans hands , why then should one man so exact upon another ? besides , this renders a man utterly uncapable of ever giving satisfactiō , for by this he is wholly deprived of all possible means of discharging his ingagements . whereas had he his liberty , he may through gods blessing upon his honest indeavour , gain sufficient , not onely to satisfie his debts , but to raise a fortune for his posteritie . but this will not digest well with such , whose principle is , that if they have it not they will make dice of their bones , ( a saying that hath been ever too common in this place ) that is , they shall starve and perish in prison : and whether this be not meer and pure malice in such men , let all the world judge ; and if death shall thereupon follow , as too too often god knows it doth , i shall be bold to say , that such a creditor is as absolute a murderer , as if he had killed him with his own hand . for what makes murder , but malice prepensed to kill : and what else can that man have in his thoughts , who resolves his debtor shall rot and die in prison , though he knows he hath not wherewithall to satisfie . to such unmercifull , pittiless , cruel creditors , ( yea , and therein most cruel to themselves too , had they grace to consider it ) i shall say no more but this , that they cannot keep their poor creditors always in prison , death will at the length take pitty of them , bring a discharge and open the doors and let them out ; and there ( through their affliction , working them to true and unfained repentance and amendment of life ) i doubt not , ends their captivity : but let these take heed , that they be not one day cast into that black , dismal and infernal lake , from whence there is no redemption . but i know that it will be objected to me that debtors may conceal , or secretly convey over their estates to cousen their creditours , which cannot be discovered ; so that if their persons may not be imprisoned , creditors shall be wholy without remedy . to this first i say , that it is a rule in law , that nullum iniquum est in lege praesumendum , presumptions of fraude or deceite are not permitted in law , that is so just , that it conceives all men to be just likewise , till there appear something to the contrarie : and why should our thoughts be otherwse ? but it is so , men of corrupt lives , judge all others like themselves . i answer further , that such as are resolved to be dishonest , it is not imprisonment will make them otherwise ; and in such case if you take their persons , you are further from gaining of your debt than before , for you cannot then fasten upon their estates ; and let not the innocent suffer with the nocent , the willing and unable , with those that are able and unwilling . besides , how often is imprisonment made a meer cheat , even by the prisoners themselves to defraud their creditors , they willingly submitting themselves to a prison , to preserve their estates . but it is further objected , that if imprisonment of mens persons for debt should be taken away , it would be a great hinderance to trading , which is , as it were , the soul of every common-wealth , for then men would not dare to trust one another . to this i answer , trading driven upon credit seldom thrives ; and i may safely say , that many men , who are now beggers , had been rich men , had they had less trust and confidence , little profit without , is more than great with hazard and danger . i know no reason that any man should be trusted who hath not wherewithall to pay ; and certainly men in general , then thrive best , when they trust least ; and for my part , i judge that man worthy to lose his debt , who trusts to the security of a mans person onely . again , lex respicit finem , the law hath an eye to the end of all actions ; and as this is not the next way to get mens debts by the imprisonment of their creditors persons , ( as i have said , and proved before , ) so i beseech you to consider , who it is that gains by it ? it is certain the creditor , seldom , if ever , gains his debt the sooner . why , the onely gainers are , sheriffs , bayliffs , serjants , goalers and keepers of prisons , &c. these are they that grind the faces of the poor , that add affliction to affliction , and live upon the ruins of others ; these are the mala necessaria , the bloud-suckers , the leeches of the common-wealth ; evils they are , and great ones too , i am sure of it ; but did i say they were necessarie ? i must recall that word , otherwise , i must of necessity approve of the devil and his cursed instruments ; and hell and a prison have no small resemblance , onely there is more hopes of getting out of the one , than the other . a silver key , so long as a man hath it , will unlock the prison doors , and set him at liberty ; but if he shall make default in payment of his rents , or other extortions exacted of him , by the keeper , and his bloud-hounds , he shall quickly be hunted after , and fetched in again , and there remain untill he hath satisfied them ; that being done , he shall be restored to his former liberty ; but if his purss be not of considerable magnitude , it will soon be emptied ; and then , no longer pipe no longer dance ; the creditor shall be sure then to find him , and now nothing remains but the body , which the creditor so unwisely made choice of , for satisfaction of his debt . this i know to be the constant course of many keepers of prisons ; and the conditions of their prisoners ; and whether this be the way for creditors to get their debts or no , let any sensible understanding man judge . but lastly , it hath been said by some , that it doth indeed stand with reason and conscience , that where a man becomes unable , through the act , or hand of god , without any debauchery or default of his own , to satisfie his debts , that in such case he should not be detained in prison ; but if through his own default , in such case he deserves no mercie . to this i say , under favour , that though he be so impoverished through his own default , it is very hard , and to me unreasonable , that he should so suffer ; first , because that this is not gods method or way of dealing with poor sinfull man , for if god should inflict the severity of his justice upon us , but for one of a thousand sins that we commit against his divine majesty , no flesh living could be saved , why should we then so exact one upon another , as not to forgive one fault or transgression of our brother ; are we not required to be mercifull as our heavenly father is mercifull ? and do we not dayly pray that god would forgive us our trespasses , as we forgive them their trespass against us ? how then dare we harbour malice in our heart against our brothers ; since except we truly forgive , we are not to expect forgiveness ? consider with thy self how much thou art indebted to god , and if he ( as in justice he might ) should require that great debt at thy hands , nay , but one of a million , thou must inevitably go to prison , i , to that prison ( to which all earthly sufferings and torments are as nothing ) from which there is no redemption to all eternity ; and therefore forgive , as thou dost expect to be forgiven . again , this is not the way to satisfie the debt ( which is the end of the law in such executions ) but to ruin the party ; who , had he is liberty , might leave his former vanities and ill courses , and live to be able to make satisfaction of his debts ; god happily waits for thy reformation all thy life , do thou ( as in duty thou art bound ) deal so likewise with thy brother . i shall conclude all with this one word , let us consider those that are in bonds , as if we were in bonds together with them . the next i have considered to treat of , is the chancery and its power , and therein i shall propose this short question . whether the high court of chancery , as the practice is there , be not a very great grievance , and burthen to the common-wealth ? it is not my purpose , or the scope of my indeavour , to speak or write against a court of chancery , i know there is an absolute necessitie of it . equity said d. . lib. . cap. . is a right wiseness that considereth all the particular circumstances of the dead , the which also is tempered with mercie , and such an equity must be observed in every general rule of the laws of man , for summum jus , summa injuria , viz. if thou take all that the word of the law giveth thee , thou shalt sometimes do against the law . and therefore said d. . cap. . very well ; if it were ordained by statute that there should be no remedy upon equity in chancery , nor elsewhere , such a statute were against reason and conscience , and certainly so it were . he approves the use of any thing , that labours to take away the abuse . i am not ignorant , that the kings of this nation have ever had their court of chancery , and their chancellor or lord keeper of the great seal ; nor am i wholly unknowing of the power and authority of that court . in the chancery , saith my lord cook in his jurisdiction of courts , there are two courts , one ordinarie , coram domino rege in cancellaria , in which the lord chancellor or lord keeper of the great seal proceeds according to the right line of the laws and stat. of the realm , secundùm legem & consuetudinem angliae , and with this court , i purpose not to meddle , as being not within the limits & bounds of my present discourse . but the other court , that is extraordinary , according to the rule of equity , secundùm aequum & bonum ; and that is my work to treat of , and that you may see the necessity of this court , it is officina justitiae , out of which all original writs & all commissions , which pass under the great seal go forth , which great seal is clavis reipublicae , and for these ends this court is always open . and in this , the chancellor or keeper was sole judge , but he had power , if he pleased , to assist himself with the judges . and now i shall take freedom to let you know what the ancient rule was for this court of equity , which is very good . three things are to be adjudged in a court of conscience : covin , accident , and breach of confidence . all covins , frauds , and deceits , for which there is no remedy by the ordinary course of law . accident , as when a servant of an obliger , morgager , &c. is sent to pay the monies upon the day , and he is robbed , &c. remedy is to be had in this court , against the forfeiture , and so in the like case . the third is breach of trust and confidence , of which you have plentifull authorities in our books : but of this , this tast onely shall suffice ; and now to come to that which i intend , which is the present practise there , and therein i shall not meddle with the many great officers and their fees ; which is a very great burthen to the common-wealth , because that i do believe , that they are in a way of redress . but the first thing that i shall touch upon , is the multitude of suits that are there pending , so that it is impossible ( without the commissioners were more than men ) for them to receive a convenient dispatcht . i do acknowledge their great and indefatigable pains in that high and extraordinarie judicature , for which the common-wealth stands very much obliged to them : yet i know as men , they cannot exceed their strength and ability . this court hath received a great addition , not of jurisdiction , but of practise , by taking away of the court of wards , that great and oppressive court ; as likewise , by the fall of that unnecessarie court of requests . so that the business of this court is so great , and doth so much increase dayly , that the common-wealth will in a short time very much suffer through inevitable , not to be prevented , delay of justice . besides ; it is not unknown , that many suits are commenced there upon a suggestion of equity , meerly false , on purpose onely to hinder or delay the execution of justice at the common-law ; this likewise much advances the p●●ctice there , and is a very great prejudice to the common-wealth , by reason of such unjust and causless vexation . i hope no man will be so unreasonable as to misapprehend me here , or to judge , that in any thing i have said , i should lay the least imputation of fault upon the commissioners , no , i do not , i cannot , i know that all men who have to do in that court , do plentifully partake of their justice , yet i must say , as before , that it is impossible for them , through the infinite multiplicity of business there , to give a convenient dispatch to all . again , it seems to me , to be a great grievance and burthen to the common-wealth , to have a resort in matter of equity from a court of law , to chancery . we say in law , frustra fit per plura , quod fieri potest per pauciora , it is vain and idle for a man to go about , when he may find a neerer way home . the law loves not circuity of action , why then should men be forced to a court of equity , when the case is pending before the judges at law ? and why may not the matter of equity ( if any ) be determined by them without such further trouble or wheeling about , which is no small charge and expence to the people ? i know not but that they are in such case , the most proper chancellors ; and this will prevent a very great mischief and vexation to the people , which i have shown before , and that is , of resorting to the chancery upon pretence of equity , whereas in truth , it is onely to delay justice : a thing , then which , nothing more frequent and usual . besides , it is no strange thing for the judges to make themselves chancellors too , for i have known this case frequently in practice , that the judges , in debt upon a penal bond , have , upon a motion , forced the plantiffe to accept of the principal with costs and damages , and i am sure , the penalty in strictness of law being forfeited , this is judging and determining according to equity ; and why they may not do it as well in other cases , i understand not further , as i have said before : the chancellor may call the judges to his assistance , and peradventure he will call those ( as is most proper ) before whom the case was pending at law : is not this then a strange circuitie of action ? why might not the matter of equity have been as well determined by the judges , and so this great vexation have been prevented ? but to this it will be said , that this would be a total destruction of the court of chancery , and a gross confounding of law and equity , to make the judges judge of both . to this i answer , that we are wholly to respect the good of the common-wealth , and what tends most that way , certainly is most just and reasonable ; other relations ought to be subservient to that ; that is equal and good ought onely to be look't upon . but further , though this will much abridge the practice there , yet , it will not take it away ; and i am certain , the practice there needs some abatemēt ; or at last there will be an extream failer of justice . not destroy it , for there be many cases , which are so meerly and absolutely equitable , that they have not the least relation to law , nor can any action in such case be brought at law , as in all your cases of discovery , and the like . so that where the suit is onely proper there , and is not , nor cannot be brought in question at law , in such case it is reason that court should have a determining power in the matter of equity : and such cases onely , i am confident , will find work enough for the commissioners , and this will be a very great ease and benefit to the people . for the scruple of confusion , i know no reason , but that judges of law may as well judge of equity ; as judges of equity judge of law . nay more , are they not all lawyers ? i know it is no strange thing , for others to have been chancellors ; yea , it hath been common for bishops to exercise that great place of judicature ; how proper it was for them , in relation to their functions , as also to the place of judicature it self , i shall not dispute here , as not proper to that i intend ; but certain i am , none more proper judges of equity , then judges of law , nor can he be a competent judge of equity , that understands not the law : for equity is no other but an exception of the law of god , or of the law of reason , from the general rules of the law of man ; which exception is secretly understood in every general rule of every positive law ; therefore he that understands not the one , cannot well judge of the other . give me leave to urge one thing more , which i am sure would very much abate , and lessen vexatious and troublesome suits in chancery , and that is , that no plaintiffs should preferre a bill , but that he may swear it , as well as the defendant his answer , that such untruths as are now ( to the shame and scandal of our profession ) alledged and preferred in all , or most bills exhibited , may be prevented , that men may not lye ( pray pardon the coursness of the term , since the truth is so ) by toleration . to this i know it will be said , that some bills are meerly for discovery and the like , and so not to be sworn to ; to this i answer , that there is no bill but hath something positively alledged in it , and that me thinks seems reason , that every plaintiffe should swear to , the rather , for the honour of this high court , that men may not dare to forge falsities , and to present them to the commissioners for specious truths . i have one thing more to say , and with which i shall conclude ; and that is , that it seems very hard to me , that men should not have costs of suit , in some reason answerable to what they have necessarily expended in this court , as well as at law ; so that often the remedy proves as bad , if not worse , then the disease , and sure this cannot be agreeable to equity , it is not aequum , nor bonum ; neither good for the court , nor equal to the party . and this to my knowledge hath deterred many a man from prosecution in this court . i shall say no more but this , judge me according to equity , and then i know i shall not be condemned . the next thing i have resolved to treat of is , collateral warranties , & in that i shall propound this short question : whether collateral warranty stands with reason and conscience , or no ? and first i shall let you know what a collateral warranty is ; that you may the better understand the reason of this question . a collateral warranty is thus ; where a collateral ancestor ; as an uncle , releases to the discontinuee or disseisor of lands in tail , with warranty and and dyes , this barres the heir in tail , because the warranty descended upon him , who cannot derive any title from the uncle ; and though the warranty descends lineally ; yet it is said to be collateral , because the ancestor is collateral to the title . but to make the case more plain , i shall put one case out of littleton . sect. . if tenant in tail discontinues the tail , and hath issue and dies , and the uncle of the issue releases to the discontinuee with warranty , &c. and dies without issue , this is a collateral warranty to the issue in tail , because that the warranty descended upon the issue , who cannot convey himself to the tail by means of his uncle . and you must know , that this warranty is a barre without any assets , or estate descended from him that made the warranty , which is the great extremity of the case . the reason that my lord cook gives , why the warranty of the uncle , having no right to the land intailed , shall barre the issue in tail is , because that it is presumed that the uncle would not unnaturally disherit his lawfull heir being of his own bloud , of that right which the uncle never had , but came to the heir by another mean , except that he would leave him greater advancement . nemo praesumitur alienam posteritatem suae praetulisse . no man is presumed to preferre anothers posterity before his own . and in this case he further saith , that the law will admit no proof against that which the law presumes . and so of all other collateral warranties , for no man is presumed to do any thing against nature . it is well that my lord cook will offer some reason for it ; it is more than i find in d. s. lib. . cap. . for he saith , it is a barre in law and conscience , because that it is a maxim. but now let us examine the reason of my lord cook , and see whether it doth stand with conscience , reason , and the good of the common-wealth ; for my part , i judge not that to be law , nor worthy so to be considered , that is unreasonable , unconscionable , and against the common good . it is an unreasonable and unconscionable law , that a collateral ancestor who cannot claim any right to the land , should have power to barre me that am the heir to it by his release , and this is a case much more extream then that of recoveries , in some sence , because the uncle is a meer stranger , as to the estate , and this is against the rule of law , that acts done by strangers should prejudice a third person . yes , but saith my lord cook it is presumed , that the uncle would not disherit his heir of that , which he had nothing to do with , nor could not pretend any right to , except that he would leave him a greater advancement , and no proof must be against this presumption . a very strange presumption , how many uncles might a man find in this age , who for a small sum of money , would not care to disherit twenty heirs , if possibly so many could be , without the least scruple of conscience ; who neither have , nor consider of any other advancement to leave them . but there is a strong block in the way ; for against that presumption there must be no proof ; so that if he leave no estate or other advancement , it is all one as if he did , it is presumed he will , though happily it is known , he neither doth , nor can ; and that is sufficient to disherit his heir . yet the rule of law is , stabitur praesumptioni donec probetur in contrarium , the presumption is to be allowed , till the contrarie be preved , but no longer : and certainly if ever there were an unreasonable exception to any rule , this may pass for one . my lord cook saith , that it hath been attempted in parliament , that a statute might be made , that no man should be barred by a collateral warranty , but where assets descend from the same ancestor , but it never took effect , because saith he , that it would weaken common assurances , rot. parliament . . e. . num. . this is a reason urged in defence of common recoveries likewise , the english of it is but this , i may barre another man of his just and lawfull right , to fortifie a wrongfull title ; otherwise it would weaken common assurances ; i know no reason , but mens rights should be as much favoured as common assurances ; an heir as much as a purchasor . to conclude , i wish a second attempt were made in this present parliament , against these collateral warranties ; and then i should not despair of redress of so unreasonable a law , the next thing i am to treat of , is , pleadings , and therein i shall propound this question . whether it be consonant to reason or conscience , that any mans plea should be adjudged nought , and avoided at any time for any matter of form , false latine , double plea , departure , or any other defect whatsoever , the case and matter it self sufficiently appearing upon the record , for which the action is brought ▪ first , that i may clear the question of some things doubtfull in it , i have added to it , at any time , because in some cases and sometimes such defective pleas are already helpt by stat. as you will find after . i shall not need to inform you what matter of form is , the word it self sufficiently speaks it . double plea is , when a man in pleading alledges several things ; the one not necessarily depending upon the other , &c. departure is when a man goes from his former plea , and pleads some new matter , these will vitiate pleadings ; and put a man to a new action . but to the case it self ; m. littleton , i remember , saith , that pleading is one of the most honourable and profitable things in our law , and therefore advises his son to bend his indeavour to the gaining of the knowledge of it . i believe it indeed to be one of the most profitable things , ( i mean to the lawyer ) but the common-wealth suffers in it . for the matter of honour , i know not where it lies , except it be in this ; that such a one is said to be a subtile lawyer , a pick-lock of the law , one , who can discover a flaw or defect in any plea presently , if it be to be found : and this is the honour i believe , to be able to vex and trouble and undo people by various suits ; if this be the honour ( though i hope no man will therefore count me wholly ignorant of this knowledge , because i speak against it ) let who will take it for me . cook upon litt. fol. . . observes , that many a good cause is dayly lost for want of orderly and good pleading ; the more the pittie . and after he saith , when i diligently consider the course of our books of years , and terms from the beginning of the reign of e. . i observe that more jangling and questions grew upon the manner of pleading , and exceptions to form , then upon the matter it self , and infinite causes lost or delayed for want of good pleading , what a gross shame , and most unconscionable thing is this , that form should be insisted upon more than matter ; and the clyent should lose his case , or have it delayed , for formalities . the clyent sues not at law for to make cases or questions , or to occasion scruples about nice formalities , but to have justice done according to the truth of his case ; and this is the end of all law , to put an end to controversies , in doing right to the parties , without delay , or regarding any thing but the truth of the case it self . interest reipublicae ut sit finis litium , it very much concerns the common-wealth , that strifes be ended ; and not that one dispute or controversie should occasion another ; much less that contention should be about words , the matter layed aside , and the party depart , not as he came , but in a worse condition , his money fruitlesly expended , and his right , if not lost , suspended . my lord cook saith again , that it is worthy of observation , and so indeed it is , that in the reigns of e. . e. . and upwards , the pleadings were plain and sensible , but nothing curious , evermore having chief respect to matter not to forms of words ; i am sure we cannot say so of these latter times ; for i am confident , they were never more nice and captious than of late . then he said , that in the reign of e. . pleadings grew to perfection , both without lameness and curiousity . and that in the time of h. . the judges gave a quicker ear to exceptions to pleadings , than either their predecessors did , or the judges in the reign of e. . or since that time have done , giving no way to nice exceptions , so long as the substance of the matter were sufficiently shewed . i attribute much of honour and respect to my lord cook ; yet i shall crave that freedom , to deliver what is truth , and that is , as i have said before , that pleadings were never more curious and subtile than of late ; and never more nice exceptions given way to . i shall not here meddle with the order of pleading , as first to the jurisdiction of the court , secondly to the person , &c. which must be observed in their due course , or you lose the benefit of the former . nor yet with my lord cooks rules of pleading in his institutes , in which he is very large : i go not about to teach or inform you of the forms and subtleties of our pleas ; though they are worth the knowing , yea , and observing too , so that the clyent may not be prejudiced for want or defect of such forms . for the double plea , i cannot understand any just reason why it should not be allowed ; that reason which the law gives , is , that the court and jury may be invegled by such pleas ; i have inquired exactly into this reason , but cannot find how , or which way ; and i do profess my self one of my lord cooks non-intelligents too ; for he said the law in this point , is by them that understand not the reason thereof , misliked ; and i do acknowledge my self of their minds who say . nemo prohibetur pluribus defensionibus uti ; no man is prohibited to use several defences . and so likewise for the departure , i know no reason that any man should be barred or concluded from offering any other or new matter , but that any man , may at any time make the best of his own case ; certainly , judges ought to have principal regard to the truth of every mās case , that that may be discovered , thereby the better to inable them to give righteous and true judgement ; not to forms or words ; these are but apices legis , the meerbark , outside , and inconsiderable part of the law ; and indeed non sunt jura , they are not law . the rule that we have in pleading , that parols font plea ; that is , whatsoever the truth of his case is , that is his case , and that he must stand to , as he hath pleaded : and the other rule , that a mans plea shall be taken most strongly against himself , where it is doubtfull , these seem to me very hard and unreasonable ; it is strange to conclude any man , where there is a mistake in words , from laying open the truth of his case ; this , if any thing , is to invegle the court , and make them give an unjust judgement , and if they be informed of the mistake , and yet judge according to that , i doubt whether a rule of law , will another day be a good plea for them . besides , if a man shall but truely reason this case , he must needs judge it very unjust , that a man should suffer through anothers default , which is contrarie to the rule of law , for that saith , nemo debet puniri pro alieno delicto . now pray who is it that draws these pleas ? why the clerk or lawyer , according to the information he receives from his clyent ; can it then be agreeable to reason or conscience , that the mispleadings , or formal mistakes of these , whom i intrust , as being wholly ignorant thereof my self , should prejudice me ; again , is it not frequent , for the most learned men of the law , to erre , or at least , to differ in judgement , from the judges ? and yet not to be blamed neither , why then should i suffer for other mens faults , or defects in judgement ? by divers statutes made in the reign of h. . e. . q. el. and king james , it is provided , that after issue tried , after verdict , after demurrer ( except where the matter of form is specially demurred to ) that the judges do give judgement according to the right of the cause , and matter in law , and no matter of form , false latin , or variance , &c. to hinder it . these are good laws so far as they have gon , and i hope none that considers these will blame me ; for without doubt , the same or the like considerations , caused the making of them ; that justice or right might be advanced above all punctilioes or nice formalities . and since those are defective in many things , as common experience teacheth ; and the same reason that caused the making of them , may , and ought to perswade our great parliament to a total extirpation of such immaterial nicities ; i doubt not , in good time , we shall have an act made , which will fully answer our desires therein ; which will be much for the good and ease of the people , and no less beneficial to lawyers . the next thing that i shall treat of , is conveyances , and therin propound this short question ; whether the many sorts of tedious and long conveyances now in use , stand with reason , and the good of the common-wealth or not ? there are many sorts of conveyances in our law , and i doubt too many , to be for the good of the people ; as feoffements , fines , recoveries , bargains , and sales , covenants to stand seised to uses , &c. most of which , are so swelled and inlarged with many unnecessary covenants , and vain and idle repetitions and tautologies , which together with advise and counsel , are an intolerable charge and expence to the people . so that he that purchaseth but a small thing ( as happily not being able to go further ) he had as good , almost , be without it , and keep his money , as under-go the great charge and trouble in the assuring of it . i put a feoffement in the first place , as deserving the preheminence and prioritie of place , being the most ancient and best conveyance . o the innocencie of former ages , when a feoffement onely of some few lines was sufficient , and served to convey over the greatest estates . yet i am not in this case , to lay all the blame , if any , upon lawyers ; for as the innocencie of those times required not so many covenants and assurances to oblige men to the performance , and making good of their faith and engagements one to another : so the wickedness and corruption of these latter ages , are such , that men must be tied and bound , shackled , and fettered like wild and untamed cattel ; so that it even puzzels lawyers to find words enough to meet with the subtle devises , and over-reaching policies of most men ; and all little enough to keep them within the bounds and limits of justice and honestie . but to return to that i broke off from ; cook upon litt. fol. . . saith , that a feoffement is the most ancient and necessary conveyance ; ( note that reader ) both for that it is solemn and publick , and therefore best remembered and proved , and also for that it cleareth all disseisins , abatements , intrusions , and other wrongfull and defeasible estates , where the entrie of the feoffor is lawfull , which neither fine , recoverie , nor bargain and sale by deedindented and inrolled doth . and that this kind of assurance may find the better esteem and approbation , i shall first inform you what it is , & then shew you the venerable antiquitie of it ; feoffement is derived of the ancient word fe●dum , quia est donatio feodi ; because it is a giving of the fee ; for the ancient writers of the law , called a feoffement donatio , of the verb do , or dedi ; which is the aptest word of feoffement . and now you shall have the antiquity of it , out of no other author , but holy writ ; for saith my lord cook , that word ephron used , when he infeoffed abraham , saying , i give thee the field of machpelah over against mamre , and the cave therein i give thee , and all the trees in the field , and the borders round about ; all which were made sure unto abraham for a possession in the presence of many witnesses , genesis , cap. . vers. . and when the kins-man of elimelech gave unto boas the parcel of land that was elimelechs , he took off his shooe , and gave it unto boas in the name of seisin of the land , ( after the manner in israel ) in the presence and with the testimony of many witnesses , ruth ; cap. . ver. , . deut. . , . thus you have the antiquity likewise of a feoffement ; now this being the best , and most ancient conveyance , i know no reason it should not be most in use . cook upon litt. fol. . a. saith , that there are eight formal or orderly parts of a deed of feoffement , as the premisses , the habendum , &c. and yet he saith , all those parts were contained in very few and significant words ; haec fuit candida illius aetatis fides & simplicitas , quae pauculis lineis , omnia fidei firmamenta posuerunt . and a feoffement is good , without these formal parts , fol. . a. for if a man by his deed gives land to another and his heirs , without more saying , this is good , if he put his seal to the deed , deliver it , and makes livery accordingly . i have been the larger upon this conveyance , by way of feoffement , because i would have men in love with it ; and certain i am , it would be best for all men ( except lawyers , who i hope will be contented to abate something of their profit , to serve the common interest ) best in point of security , and in profit . onely add this to it , that a law be made , that it shall be a barre ( as a fine with proclamations , ) if it be inrolled , & five years pass with non-claim after the inrolment , and then it will be a great ease and advantage to the publick . but if it shall not be thought fit to alter the law in point of conveyencing , as it is now setled , why then i shall humbly begge this one boon of the parliament , in behalf of the publick ? and that is , that they would be pleased to make a law , that no scrivener , or other person whatsoever , other then lawyers , shall for the future make or draw any conveyance or assurance in law whatsoever , which shall after happen to be sealed and delivered , without the advice of counsel thereupon had , either before , or after the assurance drawn and made , under a good pain or penalty , if they shall do the contrarie : and this will be a means to prevent , many contentious suits , which dayly arise upon scruples and questions out of such conveyances drawn according to their formal ignorance . the next thing i shall dispute , is the law of bastardy ; wherein i shall set down this short doubt . whether it be a just and reasonable law , that a child born before marriage ; and shortly after marriage happening , should be a bastard , or not ? this is a case , in which the common-law differs from the civil and cannon-laws ; the common-law saith , that such a child is a bastard , the other laws , that it is legitimate . i shall give you the reasons of both sides , and then you may judge which is most reasonable . this very case is debated by fortescue , cap. . the civilians say , that maritagium subsequens tollit peccatum precedens ; that is , that by means thereof , the state of matrimony coming in place , extinguisheth the former sin , whereby else the souls of two persons should have perished ; and it is to be presumed , say they , that they were at their first copulation so minded , as the marriage after declareth . the canonists also say , that matrimonium subsequens legitimos facit quod sacerdotium . say we , the sin by the inter-marriage is somewhat abated ; not purged , or taken away ; & besides this would be a great increase of that sin , and an incouragement to it , if such children should be legitimate , and the parties would be less penitent , because so favoured . and fortescue being much for our law in this point , puts this case ; saith he , if a woman should have two children of two fornicators , & the one marries her , whether of these two children should be by this marriage legitimate ? for my part , i do conceive , under correction of better judgements , that the cannon and civil laws are most reasonable in this point ; though i do not conceive , that the sin is purged , or taken away by the inter-marriage , for that cannot be otherwise , than by true repentance for the sin committed : for which , this seems to me to be a great sign , otherwise i doubt whether they would have married or no . and i do conceive it ought to be intended , that they resolved upon marriage before , or otherwise it is not to be presumed that they would have married after : men usually hate those women they have carnally known , being pricked in conscience for the sin committed and therefore not likely to marry such , unless there were some former tye or obligation upon them , which mitigates the offence , and makes them perform their ingagement : and if it were not so , who in such case would so marry , knowing his issue to be bastard by the common law . to that that is said , that it would be an increase and incouragement to commit that sin , if the law should be so taken , that the issue should in such case be legitimate . to this i answer , that i rather conceive the contrarie , that it would very much lessen and abate the committing of that sin ; for it will make them the rather eschew it , and take up resolutions of marriage ; for , as i have said , men seldom marrie that woman they have carnally known , especially having issue before hand , being the more frightened from it , by this hard law of bastardy . for that objection , that if such issue should be legitimate , the parties would be less penitent , because so favoured . to that i answer , that certainly it would make them much more penitent , when they shall live together in the state of matrimonie ; and put them more in mind of their former offence , which certainly they would less think of were they divided ; and i think a greater sign of penitence cannot be , than the subsequent matrimonie . besides , by legitimating of such issue , this great convenience would follow , that it would much abate and take off the scandal and reproch of the world , and incourage men in such case to matrimonie ; whereas otherwise they usually add sin to sin , one bastard begets more , so that once having under-gone the reproch and shame , they never consider the sin , but are more hardned in it . for the case put by fortescue , of two fornicators having got several children by one woman , and the one after marrying her , which shall be legitimate . this i conceive may receive a very short answer ; for if the party that got the child be known , we may easily judge which shall be legitimate . my lord cook upon litt. saith , fol. . that if the issue be born within a moneth or a day after marriage , between parties of full lawfull age , the child is legitimate ; by which we may conclude , that if it be born so short a time after marriage , that it is legitimate , for certainly the same reason for both . now i say this , that if we may go so near bastardy , and yet be legitimate , i know no reason ; that coming so near legitimation , it should be a bastard , and this in favour of legitimation . but besides , the sins are equal , and therefore i know no reason but the punishment should be so too , a day doth not aggravate the sin , why then should a day bastardise the issue . cook upon littleton , fol. . matrimonium subsequens legitimos facit quòad sacerdotium , non quoad successionem , propter consue●udinem regni quod se habet in contrarium . and therefore at a parliament holden , . h. . for that to certifie upon the kings writ , that the son born before marriage is a bastard , was contra commanem formam ecclesiae , rogaverunt omnes episcopi ; magnates , ut consentirent , quod nati ante matrimonium essent legitimi , sicut illi , qui nati sunt post matrimonium , quoad successionem haereditariam , quia ecclesia tales habet prolegitima : et omnes comites & barones una voce responderant , quod nolune leges angliae mutare , quae haec usque usitat●e sunt & approbatae . and i do confess that the statute of merton . h. . cap. . confirmeth this opinion . had there been a reason given in this statute ▪ or by the lords , to make good the use and approbation ; it had been somewhat to convince a man of the justice of this law , but since there is none , i hope that a nolunt mutare , shall not make the law one whit the more reasonable : it is not what we will not do , but what ought to be done that ought to poize in judgement . nevertheless , i submit all to graver judgements . the next thing that i question , is ; whether tryal by jury , as it is now in use , be agreeable to reason , and for the good of the publick , or not ? when i had seriously considered with my self , how great a burden lies upon such mens shoulders , who are of a jury ; and of what great importance this way of tryal is to all men of this common-wealth ; the lives and fortunes of all men being subject , and lyable to their verdict and judgement . and when i had further thought with my self , that although this be the most exact and equal way of tryal in the world , for men to be judged by their peers ; and that not by one or two onely , but by men of the neighbour-hood . and therefore saith my lord cook upon litt. . a jurer ought to be dwelling most near to the place where the question is moved ; and such are presumed to be best conusant of the matter of fact . . he ought to be most sufficient both for understanding that his ignorance may not mislead him ; ) & competency of estate ( that he may not be corrupted through poverty , or necessity . ) . he ought to be least suspitious , that is , to be indifferent , as he stands unsworn , and then he is accounted in law , liber & legalis homo ; otherwise he may be challenged , or excepted against , and not suffered to be sworn . the most usual way of trial ( saith he ) is by twelve such men ( it were well if they were ) for ad quaestionem facti non respondent judices . and matters in law the judges ought to decide , for ad quaestionem juris non respondent juratores : and certainly this is the most equal and just way of trial. for the institution and right use of this trial by twelve men , and wherefore other countreys have them not , and how this trial excels others ; see fortescue at large , cap. and . again , the law hath taken such care for equalitie and right in such trials ; that the law hath inflicted a most heavie doom and judgement in case they give a false verdict , by way of attaint against the jurie : for which you may see cook upon litt. fol. ● . and fortescue , cap. . yet for all this , when i again consider what weak and ignorant juries are for the most part returned , i cannot sufficiently wonder and lament , that mens lives and fortunes should depend upon such mens verdicts . that such men ( as many of them are ) who have not had so much good literature , as to be able to read , should be judges and disposers ( as upon the matter they are ) of other mens lives and estates . but here it may be objected by some , that the trials are before the learned judges of the law , who may direct them , and satisfie them in their doubts ; and therefore there is no such fear of injustice , as is supposed . this i conceive is sufficiently answered before , in that the law is , that the jury are the onely judges of matters of fact , and in that , they may judge according to their own conscience ; and are not bound in such case , to ask advise of the judges , or if they do , they are not tied to follow it : nor , in truth , ought the judges in such case to direct them , ( though in matter of law , of which they indeed are the proper judges , they may and ought to do it ) their work is onely truly and faithfully to repeat the evidence on both sides , and so to leave it to the jurie . my lord cook saith , that in ancient time they were twelve knights : and fortescue saith , that the juries are very oft made , specially in great matters of knights , esquires , &c. cap. . fol. . though this be of as high consequence and concernment to the publick , as may be , yet i shall not desire , that there should be twelve knights , or twelve esquires to every jurie ; for so in defect of them , there would be often a failer of justice ; and besides , some cases are so small and inconsiderable in themselves , that a mean and ordinary jurie , may be sufficient for that purpose . but this i shall humbly desire , that in all cases which touch a mans life , or his estate , to any considerable value , there may be twelve able understanding gentlemen returned of the jurie , such as are known in their countrey to be men of competent worth for so great an imployment . this would very much advance right , and determin disputes and controversies ; which now frequently are again revived , by reason of the verdicts of weak and unable juries . and it were happie for the publick , if an act were made to that purpose . the next thing i shall discuss , is the loss of life in case of theft , and the forfeiture thereupon . in which the question is , whether it be consonant to the word of god , or reason , that a man should lose his life for theft , and should incur so great a forfeiture and penaltie as loss of all his estate , and corruption of his bloud ? it is true , there is a commandment against it , thou shalt not steal : but there is no penaltie inflicted upon those that do . but by the judicial law , exod. . vers. . if a man steal an ox or a sheep , and kill it , or sell it , he shall restore five oxen for the ox , and four sheep for the sheep : and vers. . if the theft be found with him alive ( whether it be ox or ass , or sheep ) he shall restore the double . so that by that law , there ought to be a restitution , but no life was then in danger . but to this it will be said , that that law was given to the jews onely to observe , and doth not extend to us . to this i say , that had it been an equal and just law to suffer death in such case , without doubt it had been imposed upon them to observe ; for in the chapter before , murder is made death ; life for life , that is equal punishment : but life for any wordly or temporal substance whatsoever , holds not the least equalitie of proportion ; for one mans life is of greater value and esteem , than all the treasure upon the earth . man is the image of god , and therefore certainly we ought to deal tenderly with his image . and if god who hath the sole absolute power and dominion over all his creatures , thought not fit to give the magistrate , who is his vicegerent here upon earth , such power over the lives of men , but hath reserved it to himself ( except in case of murder ) how dare then any power or authoritie what soever usurp it ? the civil law ( if we may believe fortescue ) is more agreeable to the word of god , for he saith , cap. . that the civil laws do judge open theft to be satisfied by the recompence of four fold , and private theft by the recompence of double : so not to suffer death by their law . i do not write this to incourage men in this heinous crime ( which is too too common in these times ) no , far be it from me so to do ; for i know if there be not a severe law against it , there will be no injoying any thing that a man hath ; the law of propertie will be of little force ; but that there may be some other way of punishment , as by banishment , slavery , or the like , which may be as effectual to terrifie men , & keep them from it ; so that we do not take away the life of man , over which there is no jurisdiction given in such case by god ; we having no precept , rule , or warrant for it . and now to me , the forfeiture and penaltie in such case , is no less unreasonable , is it not too much to lose the life ? and yet will not that satisfie ; but thereby also his bloud be corrupted ; and all his estate forfeited ; so that his issue is not inheritable to him ; nor to any other ancestor ; nor can this corruption of bloud ( it is so high ) be restored otherwise , than by act of parliament . and if he were noble or gentle before , he and all his children and posteritie , are by this made base and ignoble , in respect of any nobilitie or gentrie which they had by their birth . for my part , i think there cannot be a more rigid and tyrannical law in the world , that the children should thus extreamly suffer for the crime and wickedness of the father ; the innocent for the nocent . it is true , that as the apostle saith rom. . that by one man sin entered into the world , and death by sin ; but he goes further , and so death went over all men , in whom all men have sinned . we all sinned in adam , therefore no wonder if death fall upon all . god hath the supream soveraign power over all his creatures , and so may inflict what punishment he pleaseth upon them for their sins , & who dares question it , or say it is unjust ? and yet god deals not thus severely with man ; for in the . of ezek. he reproveth the israelites for using this proverb . the fathers have eaten sowr grapes , and the childrens teeth are set on edge ; and saith , they shall use it no more : for that soul that sinneth , it shall die ; and after verse the . the same soul that sinneth , shall die ; the son shall not bear the iniquity of the father , &c. thus you may see the great mercie of god , whose greatest severity were but justice . doth not this extreamly condemn the injustice of that law ▪ which so severely punisheth the children for the transgression of the father , a wicked father may have a good child , and shall such a one be ruined through the wickedness of the father : his estate wholly lost , and not onely disinherited through his corruption of bloud , as to his fathers estate , but also made incapable of taking any thing by descent from any other ancestor ? a more rigorous law certainly was never made . but i know it will be said , that the reason of the severity of this law , is the more to deterre and affrighten men from this sin , which is so frequent amongst us ; ut metus ad ●mnes , paena ad paucos , &c. to this i answer , that it is not lawfull nor warrantable , for men to make unjust and tyrannical laws to keep men from sinning ; and to put them in execution : punish the offending father , but not the innocent children . the custom of gavel-kind is more reasonable , for though the father be hanged , the son shall inherit ; for the custom is , the father to the bough , the son to the plough . i shall conclude it with this , that i hope one day to see this custom become the common-law of england : the next thing i have in consideration , is , touching the debts of infants under the age of years ; and therein i propose this question . whether it be a just and reasonable law , that infants under the age of years , shall not be charged with their debts ? first , we are to know what the age of discretion is for man or woman ? what full age ? the age of discretion for a woman in judgement of our law is . for a man . full age is . and under that age they are said to be infants in law , and under that age they have not power to dispose of their estates , not are they liable to pay their own debts ; it is true , that for necessaries , as cloaths , dyet , schooling , & the like , they are liable , but for those neither they cannot give a penal bond , a bill they may , and it shall bind them . in general , an infant may better his condition , he can not make it worse ; this i confess to be law , yet it seems very hard to me , that an infant should not be liable to pay such debts , as he shall ow for any thing had , or received after the age of discretion ; especially , when i consider what the law is in other cases of infancy . by custom , he may make a lease at his age of . and it shall bind him . cook upon littleton fol. . b. nay further , by custom he may make a feoffement at . years , . h. . . . h. . . now no custom is lawfull , that is not reasonable . and yet further , an infant of the age of discretion , nay under , may suffer death for murder , or theft , nothing more common . . h. . . an infant betwixt . and . gave a man several wounds till he died , and then he drew the body into the corn ; for which he was convicted ? but it is true , that judgement in that case was respited for his tender age , but many justices that he was worthy of death . note , an infant of . years killed another , and it was adjudged , that he should be hanged , quia malitia supplet aetatem . but execution was respited to have pardon ; see the assises . a woman infant within age killed her mistris , and was burnt for it , see likewise the assises . again , an infant shall not avoid a marriage at the age of discretion , made , and contracted by him . cook upon litt. fol. . now i argue thus ; if an infant may do the greater , why is it not reason that he should do the less ? if he may be chargeable for things of a much higher nature , why not for those that are of a lower ? by custom he may sell his estate ; by law , he may suffer death for felony : and may contract matrimonie ; things of much greater consequence to himself : why then in reason should he not be liable to the payment of his debts ? my lord gook saith , that argumentum a majori ad minus , an argument from the greater to the less , is a good argument in law . besides , he is as much obliged in reason and conscience , to pay his debts , as a man of full age , why then the law should not tie him to it , i know no reason : i mean for debts contracted after the age of discretion : and if the law then judges him to be discreet , why should it not make him just & honest . men of themselves naturally are too prone to injustice and unrighteous dealing one with another , therefore very unfit that they should receive the least incouragement to it . how frequent a thing is it for men in such case , to take the advantage of infancy ; and most unjustly to cousen their creditors of their just debts , which in conscience they are bound to satisfie . but here it will be objected , that it is the creditours fault to trust such a one who is under age , and therefore if he suffer , he may thank himself . to this i answer , that though the ignorance of law will not excuse a man , the ignorance of fact will , and how a man should know such a one to be an infant , since many , nay most men may , and do deceive their judges by their looks ; i cannot think or imagine . and he that shall inquire his customers age , may sit still in his shop and blow his fingers , for any thing else that he shall have to do . i shall say no more but this , that certainly , that law is most just , that gives the least liberty or advantage of fraud or deceit to men . the next thing i shall speak of , and in that i shall be very short , is , clergy , and in that i shall propound this short question . whether clergy be agreeable to reason , and justice , or no ? clergy is , when a man is convicted of man-slaughter , or any other crime or offence , for which he may have his book , and thereupon prayes his clergy , that is , that he may have his book , which being granted , the ordinary , being a clergy man , and heretofore in stead of the bishop who is the ordinary , opens the book , and turns him to a place to read , and reading , the court demands whether he reads as a clerk , if the ordinarie saith that he doth , he saves his life by it , and is onely burnt in the hand . we must know , that the original of this use of clergy , was at that time when the world was in its minority ; i mean this little world , and there were but few clerks , or learned men ; and then in favour , and for incouragement of learning , as also for supply of places which were destitute of men of such abilities , this law or priviledge of clergy was invented and approved of for saving of such mens lives in some cases , for the reasons aforesaid ; and this was the reason that women could not have their book , because they could not be clerks . now i would fain know of any one , whether the cause , or reason of the making of this law holds to this day or not ? if it doth not , what reason can there be to continue it ? for the rule of law is , cessante causâ , cessat effectus , the cause ceasing , the effect likewise ceaseth . and that it doth not , nothing more evident , for certainly ( god be thanked for it ) england never more abounded with learned men , than it doth now : and therefore no want of such clerks as they are . that this law stands not with reason , i shall offer these things to consideration ; first , the slightness and inconsiderableness ( especially as the case stands now ) of the thing it self , that reading of a line or two should save a mans life ; by which the crime is no way answered or satisfied for . secondly , it may prove very unjust , for if several men be convicted of one and the same offence , one may happily read , the other not , so that the one shall thereby save his life , and the other suffer ; which cannot stand with justice . but where they are both equally guiltie , and so have deserved death ; yet to pardon one may be just , for that the one may have been a more notorious offender than the other , and so not deserving the least favour , but for one to have power to save himself , and not the other , that i judge very hard and unreasonable . lastly , ( if there were reason in the thing it self ) the difficultie of the tongue , and in many places , the character being an old letter too , and so hard to be read , makes it very unreasonable . so that i may safely say , were it not through the favour of the court , not one of twentie could save their lives by reading . since therefore there is no ground for the continuance of this law ( as there is not for any that wants reason for the support of it ) i think it were better in such cases , where clergy is allowable , that they should be onely burnt in the hand , as women are , and so set at liberty ; which nevertheless i submit to graver judgements . the next i shall write of is the distinction in law , betwixt murder and man-slaughter ; and therein put this short question . whether the law , that a man shall not suffer death for manslaughter be not against the word of god ? the distinction in law betwixt murder and man-slaughter , is thus ; murder is , when one is slain with a mans will , and with malice prepensed or fore-thought : as where two falling out one day , appoint the field the next day , and then meet according , and one of them is slain , this is murder in the other ; being done premeditatedly & upon cool bloud ; and for this a man shall not have his clergy , but shall suffer death . homicide , or man-slaughter , as it is legally taken , is when one is slain with a mans will , but not with malice prepensed ; as where two being together fall out , and both draw upon each other , and one kils the other , this being done upon hot bloud , is but man-slaughter , for which he shall have his clergy , and save his life . now , how this distinction stands with the word of god , that we are to consider , by the judicial law ; exod. . . he that smiteth a man , and he die , shall die the death . and numb. . vers. . and if one smite another with an instrument of iron ( or with a stone , or other instrument , as is said in the verses following ) that he die , he is a murtherer , and the murtherer shall die the death , saith the marginal notes , wittingly and willingly ; and certainly in the case of man-slaughter , the man is wittingly and willingly killed . i could cite many other places to the same purpose , but these are sufficient . now in these places it is said , that he that kils another shall die the death ; here is no such qualification , or distinction , as murder and manslaughter . it is true that where a man kills another unawares , per infortunium , as we say in law , which we call chancemeddly ; in such case , because it was not done with his will , it pleased god in mercy , to provide sanctuaries , or cities of refuge , for such offenders , to flee unto to save their lives ; and the onely punishment was , that they were to continue there unto the death of the high-priest . so in our law where one is slain casually and by misadventure , without the will of him that doth the act , he shall not die for it , but instead of the cities of refuge aforesaid , ( that he may not go altogether unpunished , who was the cause of anothers death , ) he forfeits all his goods and chattels for it . it is plain and evident therefore by the word of god , that he that wilfully killeth another , shall suffer death for it , whether it were in hot , or cool bloud , it differs not : how then can that law be just ( be it upon what politick principles soever ) that saves the life of such an offender ? other satisfaction can be none , and if god requires that , how dare we do the contrarie ? he that killeth a man in heat of bloud , deserves to be hanged when it is cool . and it is a sad and dolefull thing to consider , how many thousands of lives this law hath taken away ; by incouraging others to commit the same offence , considering their lives were not in danger . i shall conclude it , with that in the numb. cap. . vers. . bloud defileth the land : and the land cannot be cleansed of the bloud that is shed therein , but by the bloud of him that shed it . the next thing that comes in consideration , is concerning counsel in treason or felony ; and in that i shall propound this short question . whether it be a reasonable law , that a man shall not have counsel upon an indictment of treason or felony ? that the law is such , it is admitted , and without dispute ; and the reason that is given for it , is , that the indictment being heretofore at the suit of the king , the king intended nothing but justice with favour ; and therefore he would be contented that the justices should help forth the parties as far as reason and justice may suffer ; and that in all things that pertain to the form of pleading , the judges shall so instruct the parties , that they incurre no damage thereby . this reason at the first aspect , seems very plausible ; but better dived into , i doubt it will not appear so . do not we know , that though the judges were sworn to do right between the king and his people ; that yet they were the more immediate counsel of the king ? and though a poor man might happily find justice , as having nothing but a life to lose , i doubt , it did not always fare so with the rich ? and therefore , heretofore , when any gentleman had committed any crime for which his life was in danger , it was usual to inquire in the first place , what estate he had , and if it was answered , a good estate , it was thereupon replied , that is enough to hang him . then he had no sooner committed the offence , but his estate was begged of the king by some great courtier , and what relation there was then between the judges and the court , we very well know , but to say no more but this , suppose it shall so fall out , that the judge be a weak ignorant man himself , before whom the tryal is , ( as we have not been wanting of the like experience in our age ) who then shall advise the prisoner ? is not this then a case of great extremity and injustice ? to conclude , in the most petty , ordinary , and inconsiderable action that is , the law allowes a man counsel ; why then should it be denied him in a case of the highest concernment to him that can be , his life ? if he shall have counsel in lesser things , why not in greater , where there is most need of it ? we say , that life is one of the laws favourites , but it is not so dealt withall in this case ; but now the court is gone , i hope this law will in time be altered . the next thing to be considered is , actions for slanderous words , in which i make this question ; whether actions for slanderous words , being meer contentious suits , ought in reason or conscience to be so much countenanced , as they are ? never did these actions more abound , to the great and intollerable vexation of the people than they do now . and it were to be wished ( and certainly never in a better time than now ) that the greatest part of them were suppressed , that words onely of brangle , heat , and choler , might not be so much as mentioned in those high & honourable courts of justice . for i profess for my part , i judge of them as a great dishonour to the law , and the professors thereof ; especially when i consider , that they are used onely to promote the malice , and vent the spleen of private jarres , and discontents amongst men . yet i do not condemn all actions for words neither , for it is just and equal , that where a mans life , livelyhood , or reputation ( which is dearer and nearer to him than the former ) is much prejudiced and indangered by such scandals , that in such case the offender should be inforced by action to make compensation . but that a man should flee to the law out of malice , and make the courts of justice maintainers of every small and vain brabble , this seems to me utterly unlawfull and intollerable amongst christians . i cannot but take notice of that which wray , chief justice said in cooks . book , that though slanders and false imputations are to be repressed , because that oftentimes à verbis ad verbera perventum est , men fall from words to blows . yet he saith , that the judges have resolved , that actions for scandals should not be maintained , by any strained construction or argument , nor any favour extended for supportation of them ; and he adds the reason of it , because they do abound more in these dayes , than in times past , and the intemperance and malice of men increases ; et malitiis hominum est obviandum ; and further adds , that in our old books , actions for scandals are very rare , & such as are brought , are for words of eminent slander , and of great ●●portance . this must needs be acknowledged to be a most exact and true observation ; for , if i miscount not i find but nine reported cases for words from e. . time , ( in which they began ) to q. elis. and then they extreamly multiplied , and so have done ever since , to the great shame and dishonour of the law . and certainly these are very much against religion and peaceable conversation amongst men . and how much doth s. paul in all of his epistles decry , and labour to depress as much as possibly may be , all vain brabbles , strifes , debates , and contentions , which tend to the disturbance of the common-peace ? and i am confident nothing more tending that way , than such idle , frivolous actions as these are ; and to those that go to law for scandalous words ( except in extra●●●inarie cases ) a man may justly use the words of the apostle , that it is so , that there is not a wise man among them . and it were to be wished , that men would be more carefull of the management of this little , yet unruly member , in which is seated either heaven or hell ; this is that which often proves the greatest good , or the greatest evil to most men : which causes dissentions amongst men in families , kingdoms , and common-wealths ; wherefore i could wish , that every man would take up the saying of the prophet david , and carefully observe it ; i will take heed to my wayes , that i offend not with my tongue ; i will keep my mouth as with a bridle . but now i beseech you , give me leave , and i shall in a word inform you how these frivolous contentious actions may be very much abated , if not wholly taken away : let no words be actionable , which do appear to have been spoken in choller and passion ; or if actionable , yet let the plaintiff recover no more in damage , than he can upon oath make appear , that he was really and actually damnified by the speaking of them , and if this were provided by act of parliament , these actions would be as strange , and as rarely brought for time to come , as they were in former ages ; for nothing incourages the bringing of them more , than the intollerable , unjust , and excessive damages usually recovered by them . i shall conclude with this ; though the tongues of men be set on fire , i know no reason wherefore the law should be used as bellows to blow the coals . the next thing that i am to consider , is concerning actions that die with the person ; and therein the question is in short but this . whether it be a reasonable law that actions should die with the person ? the rule is actio moritur cum persona ; now what those actions are that shall die with the person is the thing to be inquired into , and first negatively , quicquid oritur ex contractu vel conventione non moritur cum persona , whatsoever arises by way of covenant or contract doth not die with the person . affirmatively all actions that are said in law to be meerly personal , as trespas , debts upon simple contract , battery , words , debts upon an escape against a keeper of a prison , &c. and such in law die with the person , and no action can be brought against the executors . this seems to me to be a very hard law , and a failer of justice , that i should suffer against law , and that the death of him that doth the wrong , there being no act or default in me , should take away my remedy . it is true that the law in case of a bond , covenant , or the like , binds the executor , though he be not named ; and what is the reason ? because the executor represents the person of the testator ; why then , upon the same reason , should not a personal tort of the testators , as well bind the executor ? besides , it is a rule in law , that the act of god , ( as it is here in case of death ) shall prejudice no man ; why then in such case should it take away my action ? again , there is another rule in law , that lex non debet deficere conquerentibus in justitia exhibenda ; the law ought not to be defective in exhibiting justice to complainants . but in this case , the law is defective in justice , if the inevitable fate of death shall take away my action . there is likewise another rule in law , that lex nulli facit injuriam , the law injures no man ; but i say in this case , it injures me , if it deprives me of my action by the death of the person . in fine , where ever there is a damage , there ought , in reason , to be a satisfaction for it , which ought not to be taken away or otherwise discharged , but by my act that am damnified , which i submit to judgement . the next thing that i shall debate , is concerning paine fort & dure , and in that propound this question . whether the law or judgement of penance , or pain fort & dure , against a man , who is indicted of felony , and stands mute , be agreeable to reason and conscience , or not ? this law or judgement of penance , or pain fort & dure ; is that which we commonly call pressing to death ; which is used in such case , where a man is indicted of felony , upon matter evident and proveable ( for in case of an appeal , this judgement cannot be given nor doth it hold in case of treason , or petit larceny ) and thereupon stands mute ; in such case , saith the statut● of westminst. . cap. . solent mises en la prison fort & dure ▪ &c. that is they shall have strong and hard imprisonment . by the way i shall here observe , that the words of this law do not extent to pain , but onely to fort & dure , to hard and strong imprisonment , and therefore since that law , i cannot understand the ground or reason of that cruel and heavy judgement which is given in such cases ; hard and strong imprisonment may be inflicted upon such an offender ( according to that law ) without pressing , and starving to death by famine and cold ; nor can i conceive those words to extend to death ▪ but admitring the law were such . i shall , ( that all may understand the reason of the law , ) before i go any further , let you know , what it is to stand mute ▪ and in what case a man may be said to stand mute ; and what the judgement thereupon is . my lord cook in his part of his institutes , fol. . upon the foresaid statute , saith , that a man may stand mute two manner of wayes ; first , when he stands mute without speaking of any thing , and then it shall be inquired , whether he stood mute of malice , or by the act of god , if it be found by the act of god , then to proceed , and the judges to make inquiry and to allow him all pleas , as if he had not stood mute . and the words ( of malice ) are remarkable , for it may be , the prisoner in truth cannot speak , and yet being not mute by the act of god , he shall be forthwith put to his penance ; as if the delinquent cut out his own tongue , and thereby become mute . another kind of mute is , when the prisoner can speak , & perhaps pleads not guilty , or pleads a plea in law , and will not conclude to the enquest , according to the foresaid act , or speaks much , but doth not directly answer , &c. to be short , when in the end he will not put himself upon the enquest , that is , de bono & malo , to be tried by god & the countrey ; then the foresaid act is sufficient warrant , if the cause be evident , or probable , to put him to his penance ; but if he demurre in law , and it be adjudged against him , he shall have judgement to be hanged ; so if he challenge above the number of . he shall be hanged , and not have pain fort & dure . i shall not inquire what the common law was before the making the said statute , whether the prisoner then stading mute should be hanged , as some held , and as at this day it is , in case of high treason , and , as they say , in case of appeal ; or whether then in favour of life he should neither have pain fort & dure , nor have judgement to be hanged , but to be remanded to prison , untill he would answer , according to others . but the first thing i shall consider , is , what the judgement , which the foresaid act calleth fort & dure , is , and then what the reason should be , that so severe a judgement is given in that case ; and then we may easily judge , whether it be consonant to reason and conscience ? the judgement is , that the man or woman shall be remanded to the prison , and laid there in some low and dark house , where they shall lie naked on the bare earth without any litter , rushes , or other clothing , and without any garment about them , but something to cover their privy parts , and that they shall lie upon their backs , their heads uncovered and their feet , and one arm shall be drawn to one quarter of the house with a cord , and the other arm to another quarter , and in the same manner shall be done with their legs , and there shall be laid upon their bodies iron and stone , so much as they may bear , and more , and the next day following , they shall have three morsels of barley bread , without any drink , and the second day they shall drink thrice of the water that is next to the house of the prison ( except running water ) without any bread , and this , shall be their dyet untill they be dead . well might my lord cook stile it ( as he doth after ) a strange and stupendious punishment , for when i first read it , i was even amazed and astonished at it , that such a law should be tollerated amongst christians , much more amongst protestants , strict professors of christianity , putting to death with such aggravations of torture and miserie , is rarely to be heard or read of , except amongst heathens , turks , and infidels . here is a dying three manner of wayes , ( though all but one death , which will at last nonplus tyranny , and put a period to all such like tortures ) onere , fame , & frigore , by weight , famine , and cold ; and therefore , saith my lord cook , this punishment ( if it were executed according to the severity of the law ) should be of all other the most grievous and fearfull . i confess i have not been an eye-witnes , nor would i for all the world , of any mans suffering in that kind , though it be every years experience of some mēs undergoing that death , and i do believe according to the severity of the law too , for it lies not in the power of the judge , much less of the executioner , any way to lessen or mitigate it , after judgement past . but now for the reason of this heavy and terrible judgement , which is ; according to the foresaid act , because he refuseth to stand to the common law of the land , that is , lawfull and due trial according to law , and therefore his punishment for this contumacy , without comparison is more severe , lasting , & grievous , than it should have been for the offence of felony it self , and for the felony it self , it cannot be adjudged without answer . a very strange thing , that a man should suffer ten fold more for his wilfull obstinacy in refusing to put himself upon a legal tryal , than he should for his crime or offence , which is a hundredfold greater ; more for the lesser , than the greater offence , more for contumacy , than murder . the punishment ought to agree , and to hold proportion with the offence , and not to exceed it . the rule of law is , that a man ought to be punished according to his offence ; and the statute of magna charta , cap. . is , that a man shall be punished secundum modum delicti , according to the manner of his offence , but certainly here is not the least equality or proportion between the offence and the punishment . contumacy the offence , pressing and starving to death , the punishment . it is true , that god having genes . . . commanded the murtherers bloud to be shed by man ( the murtherers not the thiefs ) and thereby enstated the power of the sword on the supream magistrate , not onely permits him , and makes it lawfull for him so to punish such malefactors , but commands and requires him so to do , as his minister to execute wrath ; for he ought not to bear the sword in vain ; but this commission is not given to him absolutely , & arbitrarily , to use as he list , though he may take away the murtherers life , yet he hath no rule nor warrant to take it away by cruel and exquisite tortures and torments ; that is praeter mandatum , beside the command . mercie is one of gods attributes ; and even the very sum and body of the scripture : therefore tyrannie must needs be against the mind and will of god , religion & christianity . taking away mēs lives by cruel tortures is diabolical and heathenish ; it is the divils part to torture and torment , and it is no strange thing for wild beasts to be cruel , but that homo homini daemon , one man should act the part of the divil with another ; or that christians should be cruel ; this is contrary to our education and profession . the magistrate , for prevention of sin and wickedness , may severely punish and correct , yea , and in some case take away the life too ; but not tyrannically . barbarity and inhumanity suits not with magistracie . the prophet david cals magistrates gods ; and certainly they approch then nearest to the deity , when they shew mercie . questionless it was a high and great aggravation of the sin of the jews in torturing of our blessed saviour by that most cruel death of the cross . but to this it will be said , that that was wholly unjust in the jews , not so here ; because it is an execution of justice . to this i say , that it is in no case just , to take away mans life by lingring and cruel tortures ; this turns the execution of justice into sin , and makes the law it self unlawfull . but it may be objected , that it is the parties own fault that he stands mute , and will not plead to be tried ; & volenti non fit injuria ; seeing he will so suffer , there is no injury done him ; and therefore not to be pittied . to this i say , let him suffer death for this his obstinacie , as he should if he had been tried , and found guilty ; and as the law was , if we believe some , before the foresaid statute , which is a satisfaction equal to the highest crime or offence whatsoever against man ; but let this cruel and barbarous law of paine fort & dure be taken away , and expunged out of our books , never to be revived . silence may contract guilt , but ought not so to aggravate punishment ; and certainly a mans folly or obstinacie , will not excuse or extenuate the magistrates cruelty . but to conclude , i cannot pass by that gracious and mercifull act of this present parliament , which hath taken away that barbarous and tyrannical law of quartering of men in case of treason ; and doubtless , this law , if strictly examined , will be found as tyrannical , if not more than the other , and if it shall appear that there is as much reason to take away this , as that , i hope it will not continue long after it . i shall say no more but this ; gratious and mercifull laws concludes the governours to be men ; but tyrannical , beasts . the last thing i shall debate is concerning wreck of sea ; and in that propound this question . whether the law of forfeiture of goods wrecked at sea , be a reasonable law , or not ? i am not here to meddle with flotsam , that is , where goods float upon the sea ; nor with jetsam , where goods are cast into the sea to prevent shipwreck , nor yet with lagan , where they are fastened to any thing that they may be discovered ; for of these i may say ( in regard it is uncertain upon what coast they may be cast , or whether driven ) capiat qui capere potest ; ketch that ketch can , but with wreck of sea , and that is such goods onely , which upon a shipwreck , are cast or left upon the land by the sea , and this onely is wreck . the ground of this wreck of sea , was , as it is said , that goods being so wrecked , the property was in no man , and therefore the law gave them to the king , who was lord of the narrow seas , who was bound to scowr the seas of pyrats and petty robbers , towards the charge of the same , this was the foundation of this law . and now it is fit to know , what the common law was before the statute of . e. . d. s. saith , that by the common law goods wrecked upon the sea were immediately forfeited to the king , but i rather believe bracton lib. . . . that there shall be no wreck where the owner comes and avows the goods to be his ; observe there that that is indefinite at any time , and that were a reasonable law . and cook lib. . sr. henry constables case , it is said , that the statute of . e. . was but a confirmation of the common law , then certainly the law was the same before , as it is now by that statute . and by that statute of . e. . cap. . concerning wrecks of the sea , it is agreed , that where a man , a dog , or a cat , escape quick out of the ship , that such ship nor barge , nor any thing within them , shall be adjudged wreck , but to be saved and kept by the sheriff , &c. so that if any sue for , and prove the goods his , within a year and a day , they shall be restored , otherwise to remain to the king , &c. so that the law is , that if but a dog or cat escape alive out of the ship , then not to be adjudged wreck , otherwise it is . now to me this seems a very hard law , that a man should lose his estate there being no act , or default in him , which is contrarie to the rule of law : and as i have said before , there is another rule in law , that the act of god shall prejudice no man ; and for my part , i cannot judge an act of parliament made against this rule , to stand with reason . this is afflictionem afflictis addere , to add affliction to affliction , and to throw him quite down that is a falling : certainly there cannot be any thing more against reason and religion , than for to add burthen to burthen , sorrow to sorrow : when the afflicting hand of god is upon a man , 't is sad and miserable to meet with such as jobs friends . for a man in an impetuous dreadfull storm and tempest , to be tossed to and fro at sea , by the raging and swelling billows thereof , every moment expecting nothing but destruction ; and at the last , to be ship-wrecked and swallowed up in the merciless deep , and after all , to have this further aggravation of miserie , that if nothing escape alive , the goods to be forfeited , or if any thing escape alive , if not a man , to be confined to a year and a day to prove the propertie , when that it is almost an impossible thing for friends to be informed of the sad misfortune , the men being all cast away ; this seems to me a very hard and strange law . but to this it may be said , that the goods may be bona peritura , and if libertie should not be given to dispose of them , after such time no claim being made , they may perish , and so nobodie be advantaged thereby . to this i say , 't is true , it may be so ; therefore i conceive it just , as in case of estrays , so in this case , that a law should be made , by which it should be provided , that notice should be given of such a shipwreck and such goods taken up , by way of proclamation , in all the port-towns and other chief cities of merchandise ▪ and then if claim be not made within the same time , the forfeiture may be more reasonable . and we ought to be invited to this the rather , considering it was the hand of god which brought this affliction , and therefore let us not add forfeiture of estate to loss of life , if possibly it may be prevented . the next and last thing i shall discourse of , is wills , and of that onely by way of advise . good advise in case of making last wills and testaments . the onely advise that i shall give to men in this case , is , that they would make their last wills and testaments in their health , with the advise of lawyers , not of parsons or scriveners , who know nothing but meer matter of form , and like carriers horses keep their rode ; judging their forms to serve all cases ; by which they raise infinite disputes and controversies , and often undo many men . nor is it a prejudice for any man to make his will ; since that in law he may revoke it when he pleaseth ; for voluntas est ambulatoria usque ad mortem . i confess in the case of wills , the favour of the law to be very great , for that they are conceived generally to be made in extremis ; for 't is a maxim of the common law , quod ultima voluntas testatoris est perimplenda secundum veram intentionem suam , & reipublicae interest suprema hominum testamenta rata haberi . that is , that the last will of the testator is to be fulfilled , according to his true intention : and it concerns the common-wealth , that mens last wills and testaments be ratified and confirmed . the law is to be thanked for this care , not themselves , and let not this incourage men in the neglect of that which often causes so much debate and dissention ( even to an irreconcilableness ) amongst a mans children and kindred ; & without doubt it is a dutie required at every mans hands , whom god hath blessed with a fortune , that he avoid that as much as possibly may be . and here i shall give you my lord cooks directions concerning making of wills , ( which indeed is very excellent ) in his third book fol. . buttler and bakers case ; where he saith , touching wills , of which you have many good matters in the said case , my advice is to all that have lands , that you would , by the advice of learned counsel , by act executed , make assurances of your land , according to your true intent , in full health and memorie , to which assurances , you may add such conditions or provisoes of revocation as you please ; for i find great doubts and controversies from day to day to arise , upon devises made by last wills , sometimes in respect of the tenures of the land ( which now thanks be to god is taken away ) sometimes by pretences of revocations , which may be made easily by word , also in respect of obscure & insensible words , and repugnant sentences , the will being made in haste , and sometimes pretending that the testator , in respect of extreamitie of pain , was not of sane memorie , and divers others scruples and questions are moved upon wills ; but if it pleaseth you to devise lands by will ; . make it by good advise in your full memorie , and inform your counsel truely of the estates and tenures of your lands , and by the grace of god , the resolutions of the justices in this case will be good direction to counsel learned , to make your will according to law , and by this to prevent questions and controversies . . 't is good if your will concern inheritance , to make it indented , and to leave one part with a friend , lest after death your will be suppressed . . at the time of publication of the will ; take credible witnesses , who may subscribe their names to it . . if it may be , let all the will be written with one and the same hand , and one and the same parchment and paper , for doubt of alteration , addition , or diminution . . let the hand and seal of the devisor be put to it . . if it be in several parts , let his hand and seal be put , and the names of the witnesses subscribed to every part . . if there be any interlining , or rasure in the will , let there be made a memorandum of it . . if you make any revocation of your will , or of any part of it , do it by writing , by good advise ; for upon revocations by wills , insue controversies , some of the witnesses affirming of it in one manner , and others in another manner . reader , you may observe , that the scope of my labour herein , is to avoid as much as may be , all unnecessarie strifes & debates whatsoever , which made me add likewise these directions concerning making of wills ; which if well observed and followed , will prevent many contentious suits , and debates in law , and much tend to the peace and good of this common-wealth . finis . pleadings in some remarkable cases before the supreme courts of scotland since the year to which the decisions are subjoyn'd. mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) pleadings in some remarkable cases before the supreme courts of scotland since the year to which the decisions are subjoyn'd. mackenzie, george, sir, - . [ ], , [ ] p. printed by george swintoun, james glen, and thomas brown, edinburgh : . attributed by wing to george mackenzie. reproduction of original in the cambridge university library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng pleading -- scotland. law reports, digests, etc. -- scotland. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - melanie sanders sampled and proofread - melanie sanders text and markup reviewed and edited - pfs batch review (qc) and xml conversion pleadings , in some remarkable cases , before the supreme courts of scotland , since the year , . to which , the decisions are subjoyn'd . cicero in brut. nulla res tantum ad bene dicendum prodest , quantum scriptio . edinburgh , printed by george swintoun , james glen , and thomas brown : anno dom. . the authors reflections upon these pleadings . few men can expect praise by writing in this age , wherein every man almost doth think himself roo'd of that praise which is given to others , and wherein he is thought to want wit , who will allow others to have any . former ages railed against such as wrote ill , but ours against such as write well ; they were sometimes so unjust , as not to reward merit ; but we are so malitious as to persecute it : thus we can neither want new books , nor deserve them ; and it hath been well observed , that it would seem now , that none but mad men write or censure . this i say , not to regrate my own fate , which hath been kind to my writings beyond my merit and expectation ; and though it had not , yet i am secure , by want of that merit which can raise envy : but i say it to regrate , that this should have stopt so many ingenious and learned men in our profession , from illuminating our law , and from informing our country-men . the laws of other nations are opprest , but ours is starv'd . this made me adventure to write these few sheets , and i wish that censure which is so much feared by others , might blunt all its edge upon me ; and that i might , like that noble roman , by leaping into this gulf , secure my countrey against this plague . this way of writing hath been very happy amongst strangers , and was not minded hitherto by us , and what way of writing is preferable to that , which hath been successfull , and yet is new ? but my design in choosing this way of writing , was to inform strangers as to our way of bleading in scotland , to form to my self a stile , and to give me an easinesse in pleading ; for since that is my dayly employment , it should be my greatest care , nihil tantum ad bene dicendum prodest , quantum scriptio , sayes cicero , the greatest master of that art. i had , by pleading whilst i was yet very young , wrapt my self into errors ; which could not be reform'd in the croud and noise of businesse , and therefore i resolved to employ some serious and solitary hours for my own recovery ; and that i might obliege my self to the greater exactnesse , i resolved to print what i wrote , hoping , that thus the fear of censure would over awe my lazinesse : by printing them , i likewise design to know my enemies , and my faults , such as censure maliciously will inform me of the one , and such as censure justly will instruct me in the other . i designed at first , to have printed many moe , but i thereafter considered , that if these pleased not , they were too many , and if they did please , it was easie to add : and i resolve to correct in the last , what shall be found to be justly censurable in the first . in three of those pleadings , ( viz . . . ) i have mingled with my own arguments , the arguments of such as pleaded with me ; in the rest , i have used only my own ; those three i wrote to be patterns , because they were not particularly mine ; those which are particularly my own , i wrote for my own divertisement , and if they bear any proportion to their fellows , they may not only satisfie the world to which they go , but ( which is it may be harder ) the author from whom they came . i have been oft asked two contrary questions ; one was , how i diverted my self , during all our six vacant moneths ? and by others , how my employment gave me leisure to write ? to answer both at once , i conceive that a man in two afternoons of each vacant week , may write twice more then ever i sent to the presse ; and he must be very busie , who hath not these to spare . when i was too young , to write in my own profession , my love to my countrey tempted me to write moral philosophy , and to adventure on a play and poem ; but now that i find , that our countrey-men could be happy enough in these , if their inclinations were not lesse then their ablities , i have abandoned those employments , and the spring of my age being past , it is fit those blossomes should ripen into fruit. i promised formerly , never to appear in print , save in my own employment ; to which promise i have , these five years last by past , been very faithfull ; and this being my first essay in it , some allowance is due to a beginner . i must confesse , that many in this kingdom could have exceeded my poor endeavours , but it were unreasonable for any man , to refuse to fight for his countrey , because another could fight better . and i rather conclude , that others need not be discouraged , though i meet with no applause ; whereas , if any be allowed me , their greater parts may expect a greater measure of fame ; and as i have been very kind to all my countrey-mens productions , so i shall be extreamly pleased to see my self out-done in my countreys service . i designed to let strangers know how we plead in scotland , and therefore it was not fit , that i should have used here the english language . i love to speak as i think , and to write as i speak . no man should be vain , because he can injure the merit of a book ; for the meanest rogue may burn a city , or kill a hero ; whereas he could never have built the one , nor equalled the other . and i confesse , that an ordinary wit may discover faults in a better author then i pretend to be : for the writer being intent upon all , cannot lay out all that industry upon every line , which amalicious critick can ; who ( like the wasp ) fastens still upon the sore : but a greater wit then they said , ubi plurima nitent in carmine , non ego paucis offendor maculis — malice likewise and observation can easilier fix upon a printed pleading , then upon what flyes away from a current speaker : and a discourse , animated by the voice and action of a gracefull and sprightly orator , will supply very much of that force and beauty , which a cold and indifferent reader will require in what comes from the press . i am not concerned in the reception of this book , my cares end with the printing : and thoughts in an innocent breast , are as secure as men are , when storms grumble and roar about the strong castle where they are lodged . few ever displeased , and none ever pleased all . such as censure too severely those sheets , are either of my own profession , or not ; those who are not , may fear to be thought ignorant ; those who are , to be thought emulous . but having now confined all my recreations to my own employment , if i cannot please others , i will at least improve my self . but it would ●bate very much the passion of authors and criticks , of advocats and clients , if all would seriously weigh my beloved verse , hi motus animorum , atque haec certamina tanta , pulveris exigui jactu compressa quiescent . the contents . what eloquence is fit for the bar. an essay . page . a pleading translated out of french , to inform such as understand not that language , of the way of pleading there . the authors answer to the former pleading , there being no answer to it extant in the french , ( with additions , pag. penult . ) how far a man may use his own , though to the prejudice of his neighbours . whether a clause prohibiting to sell , will prejudge creditors . whether tax'd-wards be lyable to recognition . how far the borrower in commodato aestimato , is lyable , if the thing be lost , vi majore . how fury , and lucid intervals may be prov'd . in what case a sentence may be reduced , by a reprobator of the depositions of the witnesses whereupon the sentence was founded , and by what probation sentences may be reprobated . how far a disposition , made by a man , in favours of his lady , of his whole estate , is reduceable , as done in lecto aegritudinis . how far restitutions by way of justice , are prejudged by acts of indempnity . how far a person unjustly forfeited and restored , may repeat annual-rents from the intrometters . whether ships taken after they have carryed contraband goods , can be declared prize , ( with additions , pag. last . ) whether it be free to all the lieges to trade with forreigners , or if this priviledge be only competent to burghs-royal . whether a novo damus secures against preceeding casualities . whether a contract entered into by a minor , who averr'd himself to be major , and swore never to reduce , be revocable . against forfeitures in absence . whether passive complyance in publick rebellions , be punishable as treason . for maevia , accused of witchcraft . for titius , accused before the secret council for beating his wife . how far minors may be punished for crimes . . whether complices may be pursued before the principal party be found guilty . . whether socius criminis may be received awitnesse in riots and lesser crimes . an answer to some reasons printed in england , against the overture of bringing into that kingdom , such registers as are used in scotland . errata . pag. . lin . . for silogisticè , read sylogisticè . pag. . lin . . for i●terta , read i●certa . pag. ibid. lin , . for animated by gain , read animated by conscience , pag. . lin . . for effectation , read affectation . pag. ibid. lin . ibid. dele the word all . pag . lin . . read 〈◊〉 meer mommeries . pag. . lin . . for lib. c , read lib. eodem . pag. . lin . . read not ●ailzies . pag. ibid. lin . . for petitus , read penitus . pag. . lin . . read fortui●●s . pag. . lin . . for quem , read quam . pag. . lin . . for effect , read , affect . pag. . lin . . for ressamen , read residuam . pag. . lin . . read must not be lawfull . pag. . for by the donator for gifts of e●cheats and non-entries , did take place according to the latter , read of gifts of escheat and non-entries , which were restricted according to the latter . pag. . lin . . for againg , read against . pag. . lin . . read so cruel a revenge . read still violated , for violat ; confiscated , for confiscat ; necessary , for necessar ; ordinary , for ordinar , and the like . what eloquence is fit for the bar. an essay . eloquence is that art , by which the orator at once convinces , and pleases his hearers ; and by which he gains same , and obedience . monarchs govern our estates , but the orator governs our wills , and inclinations ; the souldier may conquer our lands , but the orator our reason ; and whilst these owe their empire to multitudes of men , and accidents , he do's alone share in the glory of his conquest . amongst all such who stand rivals for this great honour , the advocat seems to have the fairest pretentions ; for a courtiour may by eloquence , charm a lady , he may raily , and say nothing with a bon grace : a preacher may in his retirement , sorm a discourse , which after much premeditation , meets with no opposition ; but the advocat must upon subjects infinitely various , make present replyes to what he did not expect . we come to church convinc'd of every thing our preacher is to say , we are the converts of his theme , and not of his discourse : but at the barr , justice do's oftimes side so equally , that a thousand times the hearers do confess themselves still convinc'd by the last speaker . what can the world bestow above what it allowes the advocat , as the reward of his noble pains ? what is so desireable , as to be a sanctuary to such as are afflicted , to pull the innocent from the clawes of his accuser , to gain bread for the hungry , and to bring the guilty to a scaffold ? what is so noble as to be depended upon by such as are in prosperity ( for client and depender , are the same in all languages ) to be complemented by such as are beautifull , and admir'd by such as are learned ? and if he design to flatter his vanity , would it not charm him to see a crouded audience , stand in a profound silence , with countenances which do mark longing , and reverence , to see every man look with amazement upon his neighbour , and all upon the speaker ; whilst he makes his learned judges , bow under the weight of his well exprest arguments ; and when the discourse is ended , to have all who see him salute him with respect as he passes by , and the city choose him for the subject of their kind discourses ? some divines and philosophers have oftimes prov'd so injust to the law it self , as to think it too dull and flat a science to affoord such subtile reflections , as could be the foundation of an accurat debate : to whom i design modestly to return no other answer , then that men cannot judge well what they do not throughly understand . thus common eyes discover no difference betwixt the starrs , though to judicious and learn'd persons , they appear in their distinct classes : i wish they would consider , how much the actions of men differ , how many circumstances attend every one of these , and how they are varied by these circumstances ; if letters can by their several conjunctions , make up such a swarm of words , certainly thousands of statutes , customs , and cases , must affoord much room for new and subtile conclusions ; especially since these have been subtiliz'd and cultivat for many ages , by the finest spirits of the world , who have been drawn to prefer this to all other employments , and to refine themselves to all imaginable hight in it , by the joynt hopes of glory , applause , preferment , money and emulation : — stimulos dedit aemulavirtus . i doubt not but there are many , who will think that eloquence is not allowable at the barr , since those who are to be convinced there , are old and reverend judges , whose severe judgments are not to be moved by a pleasing discourse , but by solid reason , old age being little taken with those flourishes , which it cannot practise : and that though where passions are to be excited , as they are by the pulpit , and theater , or where states-men endeavour to reclaim a mutinous multitude , there , eloquence is not only allowable , but necessary ( eloquence being the true key of the passions ) yet , since no passions are allowed in judging , and the object of that excellent science , being truth , and not humor , eloquence should not be allowed in discourses there : and i imagine it will be objected to me , that at the first institution of our senat , it was appointed by an act of sederunt , that all argunning ( which term was us'd in that age for arguing ) should be silogisticé , and not rhetoricé . to which my answer is , that eloquence do's not only consist in trops , figures , and such extrinsick ornaments , whereby our fancy is more gratified , then our judgement , and our discourse is rather painted then strengthned ; but when i mean that an advocat should be eloquent , i design thereby , that he should know how to enliven his discourse with expressions suitable to the subject he treats ; that he should choose terms that are significant , and which seem full of the thing which they are to express , and so lodge his reasons handsomly ; though when his subject looses him from the strict terms of a statute , or authority , and that he is to debate upon probable theams , to enquire into publick utility , or to enforce or answer presumptive arguments , he may use a more florid and elegant stile : his great design is to conciliat favour to his clients cause ; and sure , caeteris paribus , even the learnedst and most severe judges , love to be handsomly informed , and he must be very just , who is not somewhat bribed by charming expressions . but that the greatest part , of judges are taken with that bait , is most undenyable ; and as in mariages we find , that even those who desire rich portions , are yet pleased to have a beautiful mistris , and the severest man alive will be content to abate somewhat of the portion to gratifie his fancy ; so , i am sure that a papinian or ulpian , would , when the scales seem to stand even , encline to that side upon which eloquence stands . eloquence raises the attention of a judge , and makes him follow the speaker closely , so that nothing which he sayes in favour of his client passeth unregarded ; whereas another may say what is very reasonable , and which if it were notic'd , might weigh much ; and yet the judge who is not allured to hear attentively , may easily miss it . i may likewayes add , that eloquence thaws ( like the sun ) the speaker himself , who when he is warm and pleas'd , will thereby have his invention stirr'd up , and his memory and all his faculties opened ; by which many excellent and apposite reasons may be suggested to him ; as we see the earth ( when warm'd ) casts up many new and profitable fruits and herbs , as well as flowers ; whereas , we may dayly observe , that a stiff and cold pleader do's omit oftimes , even what he knowes . by the same eloquence also , the hearers being warm'd and thaw'd have their judgements thereby open'd , and doe receive more easily impressions of what is spoke ; and i conceive eloquence the fitter for advocats , that others think it should be banish'd as that which may bryb and corrupt judges : and methinks it should be pardon'd some little dangerousness that way , since it pleases so much another ; nor can i think but that providence has ordain'd it for the barr , to soften , and sweeten humours , which would els by constant sticking at meer law , become too rigid and severe ; and to divert and ease the spirits both of judges , and advocats , which are too much upon the rack , and bended for the service of their countrey . as to our act of sederunt , which appointed , that all pleading should be sylogisticè , i need not reflect upon the ignorance of those times , which was very excuseable amongst us , since it did at that time blind even italy and france , who do now smile with pity upon the customs and productions of their countrey-men in that age : but i conceive , that our session having been at first constitute of an equal number of church-men and laicks , and the president being an ecclesiastick , these church-men having the advantage of learning and authority , did form that act of sederunt according to their own breeding , by which they were tyed in their theology-schools to debate by syllogismes ; but after-ages having found this upon experience to be very unfit and pedantick , they did not only suffer that act to run in desuetude , but allow'd of this auguster and more splendid manner of debating , which is now used . and therefore i conclude , that not only is that way not warranted by the authority of that act , but that it has the less preference because of that act ; for , if that act had not been made , we might have been induc'd to believe that such a way might take ; but now since experience has reform'd us from it , and since even the authority of a statute could not maintain it , we must think it was not fit nor suitable , as indeed it is not , if we consider these few remarks . all sciences have an expression which is suitable to them ; the mathematicks require demonstration , and discover themselves to the eye : medicine , and natural philosophy require experiments ; logick , metaphysick ( and alas now theology ) must wrestle by syllogismes ; but the law argues by a discourse , free , and unconfined , like those who debate from its principles . it is the nature of a syllogisme to have the subsumption in the second proposition ; but in pleading , the matter of fact must come first , for it stands in the state of the case , and therefore though it be proper for lybells ( which are but a sylogisme ) yet it suits not with a defence : and it were very ridiculous , and impossible , to wrap up a long story , many circumstances , presumptions and probabilities in a syllogisme ; and oftimes there are many defences propon'd and joyned together . the most ordinar and most allow'd way of arguing in law is by similies , instances and parallels , and it is improper to drive those into syllogismes : but he will best confute this way of arguing by syllogismes , who will sit down and plead any of the causes i have set down in a syllogistick way , which if any man do , i shall renounce pleading , except he take syllogistick debating in a very large sense ; as for instance , in kenedies case , the pursuer behov'd to say , he who is guilty of forging writes , should be hang'd ; but so it is , kennedy has done so ; ergo , the defender behoved to deny the minor , and then the pursuer behov'd to say , he who is burden'd with such and such presumptions , is guilty of falshood ; but kennedy is guilty of these ; and there he behov'd to insist upon all the indirect articles or presumptions : but how should the defender answer all these by a distinguo ? or if this way were introduced , how little would this shorten debates ? and are any creatures alive so litigious as some divines , and philosophers , who debate only by syllogismes ? and so little do syllogismes contribute to clear a debate , that both in their schools , and books , such as use syllogismes must leave that way , and enlarge themselves by discourses , when the debate growes warm , and intricat . every man in pleading , gratifies his own genious , and some of all kind find equall success , and applause ; but it has been oft debated , whether pointed and short pleading , wherein the speaker singles out a point , and presses it , or full and opulent pleading , wherein the speaker omitts nothing which may prove advantagious , be preferable : each side has its examples , and patrons . the full and copious way pleases me ; for i not only find that to have been used by demosthenes , and cicero , but plinius assures us , that it was used by caesar and pompey . at first no man was stinted amongst the romans in his pleading , and when they were confined by pompey , qui primus fraena imposuit eloquentiae , the pursuer was allow'd two hours , and the defender three ; but this being found thereafter too narrow ; celicius did allow the pursuer six houres , and the defender nine : nor can a pleader be interrupted in france ( where pleading is in its greatest perfection ) though he speak three full dayes ; and if it be a fault , it is peccatum felicis ingenij , the error of great witts , whereas short pleading is common to such as pretend to be great spirits , and to such as really are meer dunses . such as use to say much can contract their discourses , but few who are used to say little , could say much , though they were willing ; and copious pleading is called ordinarily a fault , by such as have not the wit to commit that crime themselves . we see that in nature , the largest bodies are ordinarily strongest , the largest fruits most desired ; and many stroaks do best drive in the wedge . nature has produc'd many things for meer ornaments ; and god has in his scriptures , us'd eloquence and rhetorick on many occasions . but there are two arguments which have determined me to this choice , the first is , that a short pleader may leave things unclear , and so wrong his client ; whereas a full pleader can only burden too much his hearers , and so wrong only himself . a narrow , and starved discourse , is like those slender and small costed bodies , which allow not sufficient room for the noble parts to exercise their functions , non enim amputata oratio , & abscissa , sedlata , magnifica , excelsa , tonat , fulgurat et omnia evertit . the next is , that even where there is but one judge , it is uncertain which of all the arguments will convince him , but where there are many , as with us , it is very well known to such as discourse in privat with them , upon what has been pleaded , that some fix upon one argument , some upon another : the best lawyers differ oft in opinion upon debatable points , and it is great vanity for any pleader to think , that he can certainly know what will take , and what not ; this was really not an appologie for my error , but the motive of my choice , and i find it to have been formerly used by plinius the younger , ( the greatest pleader of his age , and whose epistles do of all other books best inform us how to plead ) this great man in his epistle tells us , that regulus said to him , tu omnia quae in causa putas exequenda , ego jugulum statim video , hunc premo , respondi , posse fieri , ut genu esset , aut tibia , ubi ille jugulum putaret , at ego qui jugulum perspicere non possum omnia pertento . but i will not with him adde , neque enim minus imperspicua , interta fallaciaque sunt judicum ingenia ; quam tempestatum , terrarumque adjiciam quod me docuit usus , magister egregius , aliud alios movet , varia sunt hominum judicia , variae voluntates , inde qui eandem causam simul audierunt , interdum idem , saepe diversum , sed ex diversis animi motibus sentiunt , our colledge of justice is but one body , in which the senators are the judicative faculty , and the advocats the inventive ; and as the judgement is too rash , when it concludes before the invention has represented to it all that can be said pro , and con , even so judges should not decide till the advocat ( who is animated by gain , applause , and custom to find out , all can be said ) do first lay open all the reasons , and inconveniences which he has in his retirements prepar'd : from which also i conclude , that seing the advocats are in place of the invention , that those advocats who have the fertilest nvention , are most fitted for that excellent employment . when i prefer copious pleading , i design not to commend such as are full , but of tautologies , and repetitions , who moe periods , then arguments , and who , providing they find many words , care not much how to choose them . i love a discourse which is beautiful , but not painted ; rich but not luxurious ; harmonious but not canting . i am not for many replyes , duplyes , and triplyes , but for one , or two strong , full and clear discourses , and to lengthen those , by streaching out those unnecessar plyes into one just measure . nor do i love long pleading in the utter-house , where new decisions are not to be made , but where the old should be follow'd ; and where the multitude of attenders do require a speedy dispatch , and in the inner-house it is only to be practised where the cause is new , and fertile , and when the judges desire a full information ; for it is most unfit to vex an unwilling judge , who will think all that he loves not to hear , meer effectation , and vanity : but envy must not want its objections , and where it finds not a fault , it makes one out of the next vertue ; when a man pleads fully , it terms that luxuriency , and when he pleads shortly , it will have that pass for ignorance , or lazinesse : and so inconsistent are backbite●s not only with the truth , but in what themselves invent , that i have heard one and the same pleader , blam'd for a too luxurient pleader by some , and for a lazie pleader by others , because in the inner-house he used the full allowance , and in the utter-house he thought it impertinent to make speeches , where a short defence is only necessary ; for either the point there is clear , as ordinarily it is , and then it is absurd to enforce a principle ; or it is dubious , and then he gets the lords answer , and may be full in his information ; and why should pains be taken to vex a lord with debate who is not to decide ? far be it from me to prescribe magisterially , a form of pleading to others , but i love to tell freely my own opinion , and if others did so too , we should shortly , from comparing notes , come to know what method were most allowable . in pleading amongst the ancients , and yet amongst the french , there was still a preface , and epilogue . amongst them , he who spoke first , endeavoured to establish his own opinion , and to anticipat what he thought might be urg'd by his adversars ; but with us the pursuer relates only the cause , which he is only allow'd to adorn with a pertinent representation of such circumstances , as may best , either astruct the justice of his own pursute , or obviat unnecessary objections in his opponent , but without mentioning any thing pro , or con , in jure . andyet i have heard the case so prudently stated , as that thereby the defender was precluded from many defences he design'd to propone ; for amongst able pleaders , most of what is debated , arises from a difference rather in fact , then law ; and it is a great affront for one to plead , in law , a long discourse , which the other will grant to be all true , when the discourse is ended : and yet i have heard some concede all was said , and seem to difference the present case from the case pleaded , when indeed there was none , but when this was done meerly to evite a discourse which could not be answered . after the pursuer has stated his pursute , and enlarg'd himself upon all the favourable circumstances which we call the merits of the cause , the defender propones his defence , but urges it little , till he know if it be contraverted ; but if the relevancy of the defence be contraverted by the replyer , in a full discourse , then the duplyer makes a sull answer , and ordinarily these terminat the debate , and after that the discourses become too thin and subtile , and the judges weary , albeit some causes because of their intricacy , or of new emergents , require moe returns . in these replyes , or duplyes , our custom allowes a short preface upon solemn occasions , in which the rule seems to be , that these prefaces should not be too general and such as are applicable to any debate ; as when the speaker excuses his own weaknesse or recommends justice to the judges , or such common places ; but it should run upon some general principle , which though it be not a concluding argument , yet tends much to clear that which is the subject of the debate : as in the french pleading i have translated , the pleader being to inforce that a civil death purifies the condition , si sine liberis decesserit , he begins with a preface , which shewes , that the law has a great empire over nature , and plyes its events to its civil designes ; whereas i being to plead the contrair , i do insist to clear in generall , that matters of fact , escape the regulation of law , and that law is ty'd to observe nature . the discourse it self do's consist of these arguments , whereby the defender maintains his defence , or of these answers by which the pursuer elids those arguments ; and to range them appositly into their own places ( so that such arguments as have contingency , may be set together ) is a mark of a clear , and distinct wit : and when arguments are so rang'd , each of them adds strength to another , and they look like men well marshal'd into distinct troops ; whereas arguments stragling out of that place where they ought to have been placed , seem unpleasant , and irregular , and will hardly be expected where they are ; for instance , in pleading against the viscount of stormont , all the arguments which can be press'd , are either such as endeavour to prove , that the clause of stormonts infeftment is contrary to the nature of dominium or commerce , and after that the pleader had past first dominium , and then commerce , to return to those arguments , which arise from the nature of dominium , were irregular ; for that were to return to show what he had forgot . and from this i conclude in reason , that all arguments founded upon that same general principle , should be pleaded together , and in the ordering of these generalls , i would choose to begin with those which clear best either matter of fact , or which tend most to illuminat the subject of the discourse ; and thus the controversie in stormonts case , being , whether the proprietor of tailzied lands , may alienat these lands if he be prohibit to alienat by the first disponer , or at least if they may be comprys'd from him ; the first classe of arguments to be urg'd , should be these which tend to prove , that this prohibition is inconsistent with the nature of dominium , and propriety , for these clear best the nature of propriety which is the chief subject of the debate . he who answers , uses with us , to repeat the arguments which he is to answer all with one breath ; before he begin to make distinct answers to them ; and this proceeds as i conceive , from the aristotelick way of arguing in the schools , wherein he who maintains the thesis proposed , must repeat the argument , before he answer it : this method i love not , for it consumes unnecessarily much time , and sure it wearies judges to hear the same argument twice , yea thrice , repeated ; for first , the enforcer do's repeat them , then the answerer do's repeat them , both generally at the entry of his discourse ; and therafter he must repeat each argument when he is to make a special answer ; and i should think it much more natural to repeat and answer each argument a part , ordinarily the answerer follows in his answers the method of the proponer ; yet sometimes he chooses rather to classe the arguments as he pleases , and to answer accordingly . if the defender design to answer the arguments brought against his defence , and to adde new ones to astruct the reasonableness of his pursuit , he uses first to urge his own arguments , and then to answer what is alleadg'd for the defender . whether the strongest , or weakest arguments or answers should be first insisted on , was much debated amongst ancient orators ; some thought the weakest should be first urg'd , because the judges were then freshest , and might possibly by weariness slight what was delay'd : others thought fit to leave with the judges the strongest arguments , that they might be fresh with them when they were to decide : this i think is arbitrary , and they are but weak judges , who do not weigh all equally ; but i think it adviseable for a young pleader , to urge the strongest arguments first , that he may thereby conciliat favour to himself , and raise the attention of his judges , and in all cases where the cause seems unfavourable the strongest arguments are first to be used , for the same reason , and there seems little reason to leave the strongest arguments last , if the cause be not presently to be decided : but where many answers are to be made to one argument , the weakest is ordinarily first made and as it were overlye , but the strongest is reserved last , because it is most to be insisted upon : and i think it most natural to urge the weakest arguments first , because our discourse should like our selves , and like our studies , grow from strength , to strength , and from less to more , but sometimes one argument grows from another , and then there is no place to doubt , and alwayes the most mysterious argument is to be left last , because it is to be presumed , that then the cause is best understood , and mysterious arguments come to be most in season , when judges have fully master'd the case . the epilogue with us is ordinarily , in respect whereof the defence ought to be admitted , or repell'd , &c. but in some solemn cases , the pleader may recapitulat shortly his strongest arguments , or may urge the favour and merits of the cause ; and i should love to press this merit rather here then in the preface ; for favour is but an accessory of justice , and the consequent should not preceed its cause . action , was of old one of the chief ornaments of speech , under which was comprehended , gesture , and voice , all which were accomodated to the orators design , when they spoke to multitudes of ignorant people , to whom , tears or ejaculations pleaded more , then reason did ; for that they understood better , as more obvious to that sense by which they were govern'd : but now the world is become too wise to be taken by the eyes , albeit i confesse these adde grace , though not force . with us , action is possibly too violent , which i ascribe both to the violent temper of our nation , prefervidum scotorum ingenium , and to the way of our debate , for fire sparkles ordinarily from the collision of two bodies , one against another , some debate for interest only , some for honour , but advocats for both ; yet hardly can he raise passion in others , who shows it not himself ; and all men presume , that he who is very serious , and earnest to convince others , is the convert of his own argument . i confess , that passion do's disorder very much the kindled speaker , and that he can hardly clear well his discourse who is himself perturb'd , and we know the design of an angry man no more , then we can see clearly the bottom of troubled waters : and therefore it were very advisable , that hot and cholerick spirits , should calm themselves before they adventure to enter upon a serious debate ; but such as are bashfull are the better to be warm'd , and to loose prudently , a little of their indiscreet modesty ; melancholick persons likewayes who are ready to loose themselves in their wandering thoughts , need to be a little fretted , for thereby they become intent , and finding themselves somewhat piqu'd , they are gather'd into their subject . he who fears to be interrupted , will ordinarily stammer , for he will be more busie in thinking upon the being interrupted , then upon what he is to say ; and there , passion do's well also , seeing then he considers nothing but what he is speaking . railing , is of all other qualities , the worst in a pleader , for it makes men judge that his cause needs it , when he rails against his adverse client , and that he finds himself worsted , when he rails against his adverse advocat : but some times he is obliged to found upon matters of fact , which though they have much of reflection in them , yet are necessar truths ; and sometime the law by which he pleads , obleidges him to terms , which may seem rude to strangers , and in both these cases , not to be severe , were prevarication ; though i have known advocats very innocently condemn'd for calling the late times rebellion , and such as were forfeited traitors , though in that they spoke their art , and were not obliged to speak their thoughts : and there are few clients , who when they loose the cause do not discharge a great part of their fury , upon these advocats by whom they conceiv'd themselves overthrown . too subtile speading convinces few , because few understand it , and it is applauded by few , because few can reach to the practice of it ; and in young men it may be interpret to be but affectation , or notionalnesse , though in such as have by long practice establisht their own reputation , it gains glory . many citations also are to be avoided by all in pleading ( though they are necessar in writing ) especially in young men , for in these they are thought but common place-wit ; and yet young men do most use that way , because they think thereby to supply their own want of authority ; and because they know notmany parallel cases , and are not yet so intimatly acquaint with their subject , as to draw arguments out of its retired intrails . many parentheses are to be avoided , for they interrupt the threed of the discourse , and make it knotty , and mysterious , though these weeds grow ordinarily in the richest soil ; and are the effects of a luxuriant invention . frequent repetition of the ordinar compellations , such as my lord chancellor , or my lord president , are to be likewayes shunn'd . before i propose what phrase , or stile is fit for a pleader , it is fit to tell that the two usual stiles known by distinct names , are the laconick or short sententious stile , and the asiatick , or profuse and copious stile ; the first was used by the old roman legislators , as is clear by reading the digests ; but when the empire was transfer'd to constantinople in asia , the empire changed its stile with its seat ; and we find that profluvium asiaticum in the codex , and novels . yet all the grecian and roman pleaders , even in their purity , us'd a full copious stile , as is clear by demosthenes , cicero , and others , and though legislators or judges should use the laconick , yea the other must still reign at the barr. a barrister likewayes should rather study not to want words then to stick at the choosing fine ones , and the generality of hearers are more displeased at a gap , or breach in a discourse , then can be recompens'd by a multitude of these fine words or sentences which occasioned these gaps , whilst the speaker waited for these delicat words which he found after that stop ; and as i have known many admir'd for a fluent speaking of pittifull stuff , so i have known others loose the reputation of orators by studying in their greener years too much finenesse ; and i would advise my friends who begin to speak , first to study fluency , and when they are arriv'd at a consistency there , they may easily refine the large stock they have laid together . many who are not friends to the barr , inveigh much at the canting terms which they say is us'd there ; but these do not consider , that every science has its particular terms , and it were pedantry to substitute others in their place ; and as a man looks ridiculously in a womans habit , or a woman when attir'd like a man ; a souldiour under a gown , or a church-man in buff ; so it is as ridiculous to hear a member of parliament or a councellor speak of affairs in terms of hunting , as it is for a lawyer to speak in his terms of other things ; and i laugh as much to hear gentlemen speak in their canting terms of hunting , hauking , dauncing , as they can do to hear me speak in the idiom of my trade : and to speak like a gentleman at the barr , is to speak like a pedant ; pedantry being nothing , but a transplanting of terms from what they were fit for , to that to which they are most unfit , and i love equally ill , to hear civil law spoke to in the terms of a stile-book , or accidental latin , ( as is most ordinar ) as to hear the genuin words of our municipal law , forc'd to expresse the phrases of the civil law and doctors . it may seem a paradox to others , but to me it appears undenyable , that the scottish idiom of the brittish tongue is more fit for pleading , then either the english idiom , or the french tongue ; for certainly a pleader must use a brisk , smart , and quick way of speaking , whereas the english who are a grave nation , use a too slow and grave pronunciation , and the french a too soft and effeminat one . and therefore , i think the english is fit for harranguing , the french for complementing , but the scots for pleading . our pronunciation , is like our selves , firy , abrupt , sprightly , and bold ; their greatest wits being employ'd at court , have indeed enricht very much their language as to conversation , but all ours bending themselves to study the law , the chief science in repute with us , hath much smooth'd our language , as to pleading : and when i compare our law with the law of england , i perceive that our law favours more pleading then theirs does , for their statutes and decisions are so full and authoritative , that , scarce any case admits pleading , but ( like a hare kill'd in the seat ) it is immediatly surprys'd by a decision , or statute . nor can i enough admire , why some of the wanton english , undervalue so much our idiom , since that of our gentry differs little from theirs , nor do our commons speak so rudely , as these of yorkshire : as to the words wherein the difference lyes , ours are for the most part , old french words , borrowed during the old league betwixt our nations , as cannel , for cinnamon ; and servit , for napkin ; and a thousand of the like stamp ; and if the french tongue be at least equal to the english , i see not why ours should be worse then it . sometimes also our firy temper has made us for hast , expresse several words into one , as stour , for dust in motion ; sturdy , for an extraordinar giddiness , &c. but generally , words significant ex instituto , and therefore , one word is hardly better then another ; their language is invented by courtiers and may be softer , but ours by learn'd men , and men of businesse , and so must be more massie and significant : and for our pronunciation , beside what i said formerly of its being more fitted to the complexion of our people , then the english accent is ; i cannot but remember them , that the scots are thought the nation under heaven , who do with most ease learn to pronounce best , the french , spanish , and other forraign languages , and all nations acknowledge that they speak the latin with the most intelligible accent , for which no other reason can be given , but that our accent is natural , and has nothing , at least little in it that is peculiar . i say not this to asperse the english , they are a nation i honour , but to reprove the petulancy , and mallice of some amongst them who think they do their country good service , when they reproach ours . — nec sua dona quisque recuset . i know that eloquence is thought to have declin'd from cicero's time , and it has so indeed , if with pedants , we make cicero the standart , for nothing can be straighter then its square ; but i conceive that the world do's like particular men , grow wiser and learneder , as it grows old ; but of all things eloquence should improve most , because of all things it rypens most by practice ; experience discovers daily more , and more of the humour of such whom we are to convince ; and the better we know them , we can convince them the easier . by experience also we learn to know , what forms , and sounds please most , and every pleader and orator adds some new inventions to that of the last age , and if one being added to twenty make twenty a greater number , then the eloquence of this age , being added to that of the former , must make this age more eloquent then the last . but i know such as envy the orators of the present age , do still endeavour to mortifie them , by admiring such as are dead , who in their time met with the same measure ; death also removes men from being our rivals , and so from being envy'd by us ; yet we should remember , that even cicero , and demosthenes did complain of the same in their age , though they far exceeded their predecessours . some may think that the eloquence of rome , and others behov'd to be higher then ours , because the multitude were in these common-wealths absolutely govern'd by it , and the greatness of their reward for eloquence , exceeding ours , their eloquence behov'd to do so too . but i am formally contrary , for since our judges are wiser , and more learn'd then the commons , there must goe more art to convictions now , then was requisite then , and though we have not kings , nor common-wealths to defend , as those ostimes had , who pleaded in the roman senat ; yet we may show as much eloquence upon lesser occasions , as one may cut finer figures upon steel , then upon gold ; it is the intricacy of the case , and not the greatness of the pryze , which makes the value of the pleading , and generous spirits are more animated by difficulty , then gain . we have also moe laws , parallels , and citations to beautify our discourse , then they had , and want none of their topicks ; so that though our spirits did not equal theirs , yet in our pleadings we could not but exceed them . nor do i value much the opinion of those , who think the spirits of such as liv'd in common-wealths were greater , because freer then ours , who live under monarchies , and being sub●ects to none , they had greater confidence then we can have . this is but a fancy , invented by such as live under that form of government : but i have not seen any switzer , or hollander , so eloquent as the english , or french ; and it enlivens me more to see kings , and courts , then to see these busie , and mechanick nations : nor can i think any spirit can excell much in any one thing , where equality is design'd , and where all such as offer to rise above the vulgar , are carefully deprest , and sunk down to a level , as they are under common-wealths . for my own part , i pretend to no bayes ; but shall think my self happy , in wanting , as the fame , so the envy which attends eloquence : and i think my own imperfections sufficiently repay'd by fate , in that it has reserv'd me for an age , wherein i heard , and dayly hear , my collegues plead so charmingly , that my pleasure do's equal their honour . a pleading translated out of french , to inform such as understand not that language of the way of pleading there . an estate in land being dispon'd to a woman , and another being substitute , in case she should die without children of her own body ; she being condemn'd for incest , and burnt only in effigie , the question is , whether by that civil death , the condition be purified , as well as if she were naturally dead , and if the person substitute hath by that civil death , right to the estate , without waiting for her natural death . in favours of the person thus substitute , it was pleaded . albeit matters of fact do depend intirely upon nature , and cannot submit themselves to the authority of politick laws , eaquae sunt facti , nulla constitutione infecta fieri possunt ; yet law considers them only in so far as they are necessar and usefull for humane society , and upon that account forces this maxim to suffer many exceptions . thus bonae fidei possessor , is per actionem publicianam , made to have right by an imaginary and fictitious possession , to that which he never really possessed . jus postliminii , makes us believe him who is a prisoner of war , never to have been taken prisoner . and lex cornelia doth presume , that these who did test whilst they were captives , did dye in the city to which they belonged , though they dyed really abroad in their captivity . all which instances prove , that the law doth not subject it self blindly to nature , but that it can ply matters of fact to its own designs , and can by an innocent cheat , adjust them to publick utility and advantage . this foundation being thus establish'd , let us examine this condition ( if she dye without children ) and let us try if it be so bound up to a matter of fact , as that it cannot submit it self to the just and politick fictions of the law. it is certain , that albeit all conditions be ordinarily meer matters of fact , yet this condition which depends entirely upon the intention of the testator , must owe its form to his will ; and seing he did fix his first desires and designs upon this woman and her heirs , and did call the person substitute for whom i plead , but in the third place , not to suspend and differr his liberality , but to obliege my client to wait , because she and her heirs did preceed them in the order of his inclinations : therefore , when death or fortune do state her and her heirs in such a condition , that neither of them can expect the succession , there is no doubt but his will doth immediatly transport the effects of his liberality to the person substitute , since the persons who should preceed them , are by the law removed out of the way . nor was it the intention of the testator to enrich the fisk any more , then if he had adjected a condition relating nothing to the purpose , veluti , si navis ex asia venerit . from this likewayes it follows , that as succession is one of the wayes whereby we acquire in law civil rights which depend upon the law , and which the law doth not allow to any but to its own citizens , qui habent testamenti factionem passivam ; so this condition , si sine liberis decesserit , is not so entirely and absolutely a matter of fact , but that law and fact are therein mixed together ; and therefore , albeit the death of the first heir without children , is regularly understood according to the proper and natural signification of natural death , yet lawyers have extended this to civil death , and have purifi'd the condition by deportation and other kinds of civil death . as is clear , l. ex facto , . § ex facto , ff : ad senatusc . trebel . ex facto tractatum memini , rogaverat quaedam mulier filium suum , ut si sine liberis decessisset restitueret haereditatem fratri suo , is postea deportatus , in insulam liberos susceperat ; quaerebatur igitur , an fidei commissi conditio deficisset , nos igitur hoc dicemus , conceptos quidem ante deportationem , licet postea edantur efficere , ut conditio deficiat : post deportationem vero susceptos , quasi ab alio , non prodesse , maxime cum etiam bona cum sua quodammodo causa fisco sint vindicanda . this woman is condemn'd to be burn'd and strangl'd , she had no children , and can expect no divorce ; her flight has not only banish'd her out of the kingdom , but that sentence that has reveng'd her crime on her memory , and picture , has rendered her servam penae , the unfortunat prey of an unfamous gibbet ; how can she then but be repute dead , seeing she is expung'd out of the number of subjects ? and how can that law which has execute and kill'd her , belye so far its own authority as to believe her alive , after it has taken so much pains to make us believe she is dead ? and after her civil death , how can it conserve for her a faculty of bearing children , which may fulfill a civil condition ? i confess that deportation is not still compar'd to natural death , and that the liberty which a banish'd man carry's with him to a forraign countrey , do's preserve for him all the advantages of the law of nations , ita ut ea quae juris civilis sunt , non habeat , quae vero juris gentium sunt habeat , l. . ff . de penis . but on the contrary , since the being a slave devests man of his humanity , and ranks him amongst beasts , l. . § . . ff . ad l. aquil . the law can no more consider him , but as a piece of moveables , living and animated , as a reasonable tool belonging to his master ; so that having no head , nor will , but his masters , therefore if the law allow him to fulfill any condition , that is upon his masters consideration , and not his own . a person condemn'd is the slave of his punishment , servus penae , magis enim penae quam fisci servus est , l. . ff . de jure fisci : and therefore , the law reputes him dead , since that gibbet to which it tyes him can communicat nothing to him , but a cruel death , and consequently he can fulfill no condition , l. . § . si quis rogatus ad senatusctrebel . si quis rogatus fuerit filiis suis , vel cui ex his voluerit restituere haereditatem papinianus , l. . responsorum etiam deportato ei tribuit eligendi facultatem ; cui liber factus fidei commissum restitui velit , sed si servus penae fuerit constitutus , nullo ante concepto filio , jam parere conditioni non poterit decessisseque sine liberis videtur ; sed cum decedit electionem illam quam papinianus deportato dedit , huic dari non opportet . law imitats nature , and uses the same authority over a man , as he is sociable , that nature exercises over him , as he is natural : and hence it is , that the law governs and ●egulats societies for its own advantage , and as it can beget children , and people families by adoptions ; so by the same power it can cut off unnecessary members from families by exhereditations , and can kill them by condemnatory sentences , servus penae in omni jure , verè ac semper similis est mortuo : cujac . obser . l. . cap. . law then may justly bury a criminal in the unfamous sepulchre of a cruel servitude , which takes from him his civil life with his liberty , and can tye him to a long death and excessive torment , which may draw out his torture to a very long continuance , and make him , as petronius speaks , pass but for the pitiful vision , and horrid shadow of his own person . we must then confess , that that sentence which confiscats his body and goods , doth at the same time confiscat his person and liberty . it is the sentence which kills him , and his natural death following thereafter doth but execute that sentence ; and as we say , that a robber has kill'd a passenger when he gave him the mortal wounds , though he did not then dye , tunc occidisti cum vulnerabas , l. si ita ff . ad l. aquil . so by the same reason , the judge doth kill a criminal the very moment that he pronounces the sentence , and he truly dyes by the sentence , and not by the execution , l. . ff . de pen. qui ultimo supplicio damnantur statim & civitatem , & libertatem perdunt , itaque prae-occupat hic casus mortem , & nonnunquam longum tempus occupat , quod accidit in personis eorum , qui ad bestias damnantur , saepe etiam adeo servari solent post damnationem , ut ex his in alios quaestio habeatur . and as the authority of the law may beget a citizen before his birth , and receive a posthume into the common-wealth before he come out of the womb , post humus pro nato habetur : so its empire may take away the life a long time before a man die . it may preveen his death , and chase him out of the world before death overtake him , which is likewayes confirmed per l. si quis . § . sed & si quis ff . de injust . sed & si quis fuerit capite damnatus , vel ad bestias , vel ad gladium ; vel alia pena quae vitam adimit , testamentum ejus irritum fiet , non-tunc cum consumptus est , sed cum sententiam passus est , nam penae servus efficitur . let us now see if this way of reasoning drawn from the roman customs , can be brought home to our french practique . lawyers who designed to found the principles of their true philosophy , upon maxims , real , solid , and constant , were too clear-sighted to force their lawes to discharge their revenge upon an image , and an apparition , to take the shadow for the body , and in supposing the name of a criminal for his person , thereby to challenge their judges of want of power and precipitancy ; and therefore they did not allow , that a person who is absent should be condemn'd , and that the law should in vain spend its thunder upon those whom it could not reach : l. . ff . de requirend : reis . since then the law of the romans , could not condemn capitally a criminal who was contumacious , it was easie to them to believe that a prisoner who was present and fetter'd , did instantly receive that death to which he was condemn'd . but since our statutes ordain a painted and imaginary execution , either our statutes and customs must confess their weakness , and quite these as a meer mumries , or els they must necessarily obliege us to believe these appearances to be realities , and essay to verifie these civil lyes , in forcing us to believe that these painted executions are real ; that the originals of those infamous pictures are no more alive , and that res judicata pro veritate habetur . if the power of a roman pretor was sufficient to beget a child in spight of truth , and nature it self , plane si denuntiante muliere , negaverit ex se esse pregnantem , tametsi custodes non miserit , non evitabit quominus quaeratur , an ex eo mulier pregnans sit , quae causa si fuerit acta apud judicem , & pronuntiaverit cum de hoc agetur , quod ex eo pregnans fuerit nec ne in ea causa esse ut agnoscere debeat , sive filius non fuit sive fuit , esse suum , l. . § : ult . ff . de agnosc . liber . or may force a mother to disown her child , which is really hers ; sive contra pronuntiatum fuerit , non fore suum , quamvis suus fuerit , placet enim ejus rei judicem jus facere , l. seq . ff . eod . by much more reason , may a general law and custom universally receiv'd , force subjects so far to obey their judges , as to believe that a woman strangled and burnt has lost her life upon the scaffold , where she has been so publickly and tragically executed . it is then more just to presume , that this woman who is condemn'd is dead without children , and that her execution has purify'd the condition , then that the pursuer should attend her death , should search out her wandering person , which lurks under so much shame , and pursue her in her flight and banishment through countries , which are either unknown , or in enmity with ours ; and therefore i conclude , that it is most just to put the pursuer in possession of the estate . i have essayed thus to answer the former pleading , because there is no answer to it extant in the french , and because such cases may with us frequently occurr . the greatest glory of art is , that it can imitate nature ; and every thing which forces nature , is hated by men , as folly and affectation ; but amongst all those arts which follow nature , law is the chief , for it being the chief product of reason , it endeavours most to resemble nature , reason and nature being in man the same thing vary'd under diverse expressions , and reason being mans nature . and thence it is , that the law plyes all its constitutions to the several degrees of nature , and observes it exactly before it begin to form a statute relating to it , propter naturam statuitur aliter , quam statueretur alias , gl . ad . l. julianus , ff . si quis omissa causa ; though it appoints that consent should obleidge , yet it excepts minors , because of the frailty of their nature ; though it appoints murder to infer death , yet it pardons such as are idiots , or furious ; it doth in dubious cases prefer that interpretation which is most suitable to the nature of the thing contraverted , it presumes illud inesse , quod ex natura rei inesse debet : and it has very well ordain'd , that ea quae dari impossibilia sunt , vel quae in rerum natura non sunt , pro non adjectis habentur , l. . ff . de reg . jur . since then there is nothing so unnatural as to force us to believe , that a person who is really alive , is truly dead , and that the children which a woman may bring forth shall not be her children ; i see not with what appearance of successe the substitutes can in this case aspire to the succession now craved . nature has a fixt beeing , and men know what it determines by consulting their own breasts , and think themselves happy under the protection of what is sure , and determin'd ; but if it were allow'd that law might vary , and that lawyers might invent such fictions as these , and by them impose upon others , who not being of their profession could not follow all their subtilties , and windings ; then law should become a burden , and be esteem'd an illusion . and i imagine i hear those amongst whom this woman lives , laugh at this discourse , which would force them to believe that she is dead ; and i am sure that any country-clown may refute it , by presenting the woman , as one refuted a wise philosopher , who maintain'd , that there was no motion , without any other argument , then by walking up and down . the question then being , whether the condition , si sine liberis decesserit , is purified by a civil death , and if immediatly after she is burnt in effigie , she can be said , sine liberis decessisse , so that the person substitute may immediatly succeed , and exclude any children she shall thereafter bear , or if the substitute must attend her natural death . that the substitute cannot succeed immediatly after her being burnt , but that any future children would seclude him , so that a natural only , and not a civil death , purifies the condition , is contended by these reasons ; first , the question being , whether this condition , si sine liberis decesserit , respects natural , or civil death ; we must interpret the word death , so as that we follow the more genuine and natural signification ; and i am sure , the ordinary and genuine interpretation of death , is a natural and not a civil death . . if we look to the meaning of the disponer , which is the next rule to be 〈◊〉 in the interpretation of dubious and equivocal words , we will find , that it is hardly imaginable , that the disponer dream'd of a civil death ; and it is most certain , that any man , especially who was not a lawyer , would never have figur'd a civil death ; nor is it deny'd , for fictio is mens legis , non disponentis . but how unsuitable were it to natural equity and the principles of law , that the will of the disponer should not regulat what is dispon'd ? or why should the law dispose upon what it did not bestow ? . words are to be explain'd in a disponers will , as the disponer would probably have explain'd them himself , if the meaning had been contraverted at the time of making the disposition ; but so it is , that if it had been proposed to the disponer , whether the children of the woman institute should be cut off , in case their mother should commit a crime ? it is probable that he would not have punished poor infants , for a guilt to which they were not accessory ; and the law was never more generous , then when it said , non competere beneficium inofficiosi testamenti post-humis , cum exhaeredationis causam comittere nequeant , nec debent alieno odio praegravari , l. . § . . c. de inoff . test . nor is it imaginable , that the testator would have taken from them what he designed , because they sell , without their own guilt , in a condition , which made that which was but liberality to become charity : and since he designed this for their mother and them , to supply their wants , it is not imaginable he would have taken it from them , when their wants were greatest . the children would likewise still continue to be nearer to the disponer , then the substitute , nam jur a sanguinis nullo jure civili adimi possunt ; and since the blood-relation gave at first the rise to that nomination , it is probable , that the effect would not be taken away whilst the cause continued . . if she can have children after her being burnt in effigie , she cannot be said decessisse sine liberis , upon her being burnt in effigie ; but i subsume that she may have children , and such too as the law would acknowledge to be children : for by the . nov. cap. . marriage is declar'd still to subsist , notwithstanding of any interveening criminal sentence , for though by the old law , condemn'd persons pro nullis habebantur , and so the marriage was dissolved , yet by that excellent constitution this was abrogat , si enim ex decreto judiciali , in metallum aliquis , aut vir , aut mulier , dari jussus esset , servitus quidem erat & ab antiquis legislatoribus sancita & ex supplicio illata , separabatur vero matrimonium , supplicio possidente damnatum , sibique servientem . nos autem hoc remittimus , & nullum ab initio bene natorum ex supplicio permittimus fieri servum , neque enim mutamus nos formam liberam in servilem statum , maneat igitur matrimonium hoc nihil tali decreto laesum . since then her husband continued to be so still , and that the law would acknowledge the children to be hers , would not the law contradict it self , if it should say that she died without children , and yet should acknowledge that these were her children ? . post-humus pro jam nato habetur , ubi de ejus commodo agitur ; and therefore , by the same reason of justice and equity , the law should be so far from presuming , that there can be no children born after the mother is condemned , that if she shall bear any , it should rather presume them to be already born , to the end they may not be prejudged of the succession which would be otherwise due to them ; and if posthumus habetur pro jam nato , ubi agitur de ejus commodo , much more should he be presumed natus , ubi agitur de damno vitando ; for we are much more favourable in damno vitando , quam lucro captando . . by the roman law , auth bona damnatorum , c. de bon . prescript . the goods of condemn'd persons were not confiscat in prejudice of the ascendents , or descendents , to the third degree , except only in the case of lese-majestie . if then the crime be not able to seclude children , it follows necessarily , that children quo ad their succession , are in the same case as if the crime had not been committed , and if the mother had committed no crime , here there had been no place either for the substitute , or for this question . it is just that delict a s●●s debent 〈◊〉 authores ; and that since punishment is only justified by the preceeding guilt , that the punishment should not exceed the guilt , and that the right designed for the children by the first disponer , should not be taken away from them by the mothers fault : this were also to adde affliction to the afflicted , to make poor infants loose with their mother , their patrimony , and to impoverish them most , at an occasion , when to give them were charity . i confesse that law sometimes doth recede from nature , and invents pretty fictions , as in the cases propos'd of jus postliminij , adoptionis , and legis corneliae ; but it doth so , very sparingly ; nor are these fictions ever allow'd , except where they are introduc'd by an expresse law ; for the law thought it not reasonable to allow every judge or lawyer a liberty to coin his own caprice into a fiction , lest so , unreasonable fictions might be introduc'd , and lest the people might be ignorant of what they were to follow . since then the pursuer founds his strongest argument upon this as a priviledged fiction , he must instruct that this fiction is founded upon expresse law , and even in these fictions , law neyer inverts nature , but rather seconds it , and it makes not nature bow to these , but these to nature ; and amongst many other instances , this is clear by adoptions , wherein the younger cannot adopt the elder , because it were against nature saith the law , that the younger should be father to the elder , inst. de adopt . § . . minorem natu majorem non posse adoptare placet , adoptio enim naturam imitatur , & pro monstro est , ut major sit filius quam pater . and i may by the same reason say , that it were monstruous to imagine , that she who may really labour in child-birth , and who really may give suck cannot bring forth a child , but is dead ; and that the law should not own as children , these whom the church owns as such . and in these fictions which are allow'd , we will find upon exact inquiry , that law has not designed to overturn nature , but only has made bold by these fictions to dispense with some of its own solemnities , as is clear by the law cornelia , wherein the romans did by that legal fiction imagine , that he who died in prison amongst the enemies in a forreign countrey , died at rome , and at freedom , meerly that they might by that fiction render valid the testament of him who was a prisoner , for the honour of their common-wealth ; and whose testament could not have subsisted without this fiction , seing none but a free citizen could amongst them make a testament . since then there is no need of such a fiction as this , and since there is no expresse law introducing it specifically in this case , there is no reason that it should be allowed to take away the benefit of the disposition from the person substitute , which it gave not . nihil tam naturale ( sayes the law ) quam eo genere quidque dissolvere quo colligatum est , l. . ff . de reg . jur . since then the children owe not their succession here to the civil law , but to the will of the disponer , the law should not by its fictions , take away what was not at first the effect of its liberality . in the cases where the law allow's fictions , it allow's them only for to strengthen natural equity , and not to overturn it , and by the definition given of it , it is said to be indubitatae falsitatis pro veritate assumptio , in casu possibili , & ex justa causa proveniens , ad inducendum juris effectum equitati naturali non repugnantem . jason . ad l. si is ff . de usu-cap : upon which definition no subsumption can be founded here , for not only is not this in casu possibili , because it is impossible , that a person can be both dead and alive at once , and that children should be , and not be , verum est , neque pacta , neque stipulationes , factum posse tollere , quod vero impossibile est , neque pacto , neque stipulatione potest comprehendi , l. . ff . de reg . jur . but it is also repugnant to justice and equity , that the estate destinat by the disponer to his blood-relations should be taken from them , and given otherwise then he would have bestowed it himself ; and though the law doth sometimes in favours of children , obliege us to believe , that the child that is in the mothers womb is born , there is some foundation for imposing that upon us , since there is a child extant though not born ; yet it never uses that liberty in punishing poor infants , and to condemn them before it can know them , or that they have transgressed . in answer to the second classe of arguments , i do confesse , that it is true , that all civil rights should perish by a criminal sentence , and that in sensu civili , pro nullo habebatur damnatus ; but it is as true , that ea quae sunt juris naturalis were not thereby taken away , quod attinet ad jus civile , servi pro nullis habentur , non tamen et jure naturali , quia quod ad jus naturale attinet omnes homines aequales sunt , l. . ff . de reg . jur . but so it is , that to bear children is in her no effect of the civil law , but of the law of nature , and the children to be procreat by her , will be her children by the law of nature ; so that since she can bear children , she can yet fulfill the condition of the institution ; nor can she be debarr'd from that by being serva penae , at least her children cannot , seing they are not condemned by her sentence : condemnatory sentences take only from the person condemned what may belong to the fisk , for it substitutes the fisk in place of the person condemned , but it takes not from him what cannot belong to the fisk . ea sola deportationis sententia aufert , quae ad fiscum perveniunt ; but so it is , that it was never designed , that the fisk should succeed in place of the person to whom the disposition was made , as is acknowledged by the substitute who now craves preference ; and if the fisk would be preferr'd to the womans children , much more would he be preferr'd to their substitutes , who succed only to them . and the reason of the decision , l. ex . facto . ff . ad . sc. trebel . is not founded in odium of the children , but of the fisk , maxime cum etiam bona , cum sua causa fisco sunt vindicanda . but the solid answer to that , and all these other laws , is , that by the old roman law , damnatus erat servus penae , & servus penae parere conditioni non p●terat , & pro nullo habebatur ; and therefore , by that law , parere conditioni non poterat , as is clear by the law cited : but justinian did abrogat that amongst many other unreasonable fictions , and by nov . . cap. . this servitus penae is clearly abrogated , and therefore since the foundation of the decision is taken away , the decision can now no longer take place , and by all the laws in christendom , those servitudes are now abrogated ; and our blessed saviour has by his coming to the world , set mankind at liberty in all respects , and we can be slaves to nothing now , but to our vices . nor doth the law look upon a person condemned , as a dead person , in all respects , which is the third great foundation of all that is pleaded against my client ; for it allowes her to propone her just defences , and it would punish him who kill'd her upon a privat revenge ; it would acknowledge her children to be lawfull , and untill she be really dead , her husband could not marry another : for though the law , to deterr men from committing crimes , doth oftimes raise its terrors by civil fictions , yet it is the nature of these civil fictions , that they cannot be strech't de persona in personam ; though then it will not allow such to be thought still alive who are struck with it's thunder , yet this fiction reaches only to the offender , in so far as concerns her civil capacities , and the punishment of her guilt ; and therefore seing the blood is not tainted by this sentence , she not being here condemn'd for treason , which is the only crime that taints the blood , her children , though born after the sentence , would still succeed to her , and since they would be acknowledged to be her children , she cannot be said decessisse sine liberis : which is the condition upon which the substitute craves to be prefer'd . the parliament of burgundy found , that a natural death could only purifie this condition , si sine liberis decesserit . for haining , against the fishers upon tweed . first pleading . how far a man may use his own , though to the prejudice of his neighbours . haining being prejudged by a lake which overflowed his ground , and which by its nearness to his house , did , as is ordinar for standing waters , impair very much the health of his family : he did therefore open the said lake , whose waters being received by whitticker , did at last run with whitticker into tweed . the fishers upon that river , pretending that the water which came from that lake , did kill their salmond , and occasion their leaving the river , do crave that haining may be ordain'd to close up that passage . this being the state of the case , it was alledged for haining , that since men had receded from that first community , which seem'd to be establish'd amongst them by nature , the law made it its great task , to secure every man in the free and absolute exercise of his property , and did allow him to use his own as he thought fit , and whatever did lessen this power and liberty , is by the common law term'd a servitude , or slavery : nor can a servitude be imposed upon a man without his own consent , and suitably to this principle , every man may raise his own house as high as he pleases , though he should thereby obscure the lights of his neighbours house : or if i should abstract from my neighbours ponds , that water which formerly run into them from my lands , the law doth not think him prejudged , nor me oblieged to prefer his conveniency to my own inclinations , as is clear by l. . ff . de damno infect . for as that law very well observes , he is not prejudged who looses a benefit which flow'd from him who was no way tyed to bestow it , l. . ff . de dam. infect . proculus ait , cum quis jure quid in suo faceret quamvis promisisset damni infecti vicino , non tamen eum teneri ea stipulatione : veluti si juxta mea adificia habeas aedificia , eaque jure tuo altius tollas , aut si in vicino tuo agro cuniculo , vel fossa aquam meam avoces . quamvis enim & hic aquam mihi abducas , & illic luminibus officias , tamen ex ea stipulatione actionem mihi non competere : scil . quia non debeat videri is damnum facere , qui eo veluti lucro quo adhuc utebatur , prohibetur : multumque interesse utrum damnum quis faciat , an lucro , quod adhuc faciebat , uti prohibeatur . and if i dig a well in my own house , which may cut off those passages whereby water was conveyed to my neighbours well , one of the greatest lawyers has upon this case , resolved , that my neighbour will not prevail against me ; for , saith he , no man can be said to be wrong'd by what i do upon my own ground , for in that i use but my own right ; l. . § . ff . cod . in domo mea puteum aperio quo aperto venae putei tui praecisae sunt , an tenear ? ait trebatius , me non teneri damni infecti , neque enim existimari operis mei vitio damnum tibi dari , in eare , in qua jure meo usus sum : where the gloss observes , that in suo quod quisque fecerit , in damnum vicini id non animo nocendi facere presumitur . and if by a wall or fence upon my land , the water was kept from overflowing my neighbours land , i may throw down my own fence , though my neighbours land be thereby overflowed , l. . ff . de aqua pluvia ; and therefore , seing the ground doth belong to haining , and that the fishers of tweed have no servitude upon him , he may use his own as he pleases , especially seing he doth not immediatly send his water into tweed , but into another rivolet , which carryes it very far before it doth disgorge there . so that if the fishers upon tweed did prevail against haining , they might likewise prevail against all , from whose ground any moss-water runs into tweed , though at fifty miles distance ; and they may forbid all the towns from which any water runs into tweed , to throw in any excrements , or any water employed in dying , lest it prejudge their salmond-fishing ; whereas , alteri prodesse , ad liberalitatem , non ad justitiam pertinet . it is ( my lords ) referr'd to your consideration , that publick rivers have been very wisely by providence , spread up and down the world , to be easie , and natural vehicles for conveying away to the sea , ( that great receptacle of all things that are unnecessar ) excrements , and other noxious things , which would otherwayes have very much prejudg'd mankind ; and that they may the better perform this office , providence has bestow'd upon rivers , a purifying and cleansing quality , so that after a little time , and a very short course , all that is thrown in there , doth happily loose their noxius nature , which is washt off by the streams by which they are carryed . rivers are natures high-wayes by water , and we may as well forbid to carry any thing which smells ill , upon our high-wayes by land , as we may forbid to throw in stinking waters into our rivers . the proper use of rivers is , that they should be portable , and fit for navigation , or for transporting things from on place into another ; and salmond-fishing is but an accidental casuality , and therefore the only interdicts , or prohibitions propon'd by the law , relating to publick rivers are , ne quid in flumine ripave ejus fiat , quo pejus navigetur , tit . . lib. . and , ut in flumine publico navigare liceat , tit . . ff . eod . lib. but in rivers that are not navigable , the law has forbidden nothing , but that their course and natural current be not alter'd , ne quid in flumine publico fiat , quo aliter fluat aqua , atque uti priore estate fluxit , tit . . ibidem . so that since the law doth not forbid the throwing in any thing into publick rivers , it doth allow it ; for it is free for every man to do what the law doth not prohibit , and if upon such capricius suggestions , as these , men were to be restrain'd from using their own , no man should ever adventure to drain his land , to open coal-sinks , or lead-mines , or to seek out any minerals whatsoever , whose waters are of all other the most pestilentious , because after he had bestowed a great deal of expense , he might be forc'd to desist , for satisfying the jealousie , or imagination of melancholy , or avaritious neighbours . and if this pursute find a favourable hearing , malice and envy will make use of it , as a fair occasion whereby to disturb all successfull , and thriving undertakers . but your lordships may see , that the world , both learn'd and unlearn'd , have hitherto believ'd , that such a pursute as this would not be sustain'd , in that though interest and malice did prompt men to such pursutes , yet not one such as this has ever been intented , for ought i could ever read , save once at grenoble , where an advocat did pursue a smith to transport his forge from the chief-street , because it did by its noise disturb not only him , but the people who frequented that street ; from which pursute the smith was absolv'd , as expilly observes in his pleading . yet , my lords , the fishers upon tweed want not some apparent reasons which give colour to the pursute ; and it is urg'd for them , that no man is so master of his own , but that the common-wealth has still an interest with him in it , and law being invented to protect the interest of societies , as well as to secure the property of privat persons , therefore though every privat man inclines to satisfie his own humour , and advantage , in the use of what is his own , yet it is the interest of the common-wealth , that he do not abuse his own property ; and therefore it is , that the law doth interdict prodigalls ; nor will the law suffer that a man use his own in emulationem alterius , . l. . ff . de . oper . pub . and a man is said to do any thing in emulationem alterius , when others looses more by what is done , then the proprietar can gain : as in this case , though quilibet potest facere in suo , yet non potest immittere in alienum , which is their case ; and all the arguments brought for haining do not meet , seing they only prove , that a man may use what is his own as he pleases , ubi nihil immittit in alienum ; as is clear by the instances given , of throwing down his own wall , or the digging up a well in his own land , which differs very much from our case , wherein haining doth pour in his poysenous water into the river of tweed . that men are restrain'd for the good of the common-wealth in the use of their own property , is very clear from many instances in our law , as men are discharg'd by acts of parliament to burn mures , to kill smolts ; the way and manner of fishing upon lochleven is prescribed to the heretors , by act of parliament , and men are forbidden to steep lint by publick acts likewayes . likeas , the common law will not suffer men so to use water running through their own land , as that they may thereby prejudge milns belonging to their neighbours , which use to go by that water , and whatever may be alleadged in favours of any innovation in running waters , yet lakes being appointed by nature , seem to have from nature a fix'd beeing ; nor should they be opened to the prejudice of others , contrary to their nature . these objections may , ( my lords ) be thus satisfied . to the first , it is answer'd , that the only two restrictions put upon men in the free exercise of their own , are , ne in alterius emulationem fiat , vel materiam seditionis prebeat , as is clear by the foresaid , l. . ff . de oper . pub . neither of which can be subsumed in this case . and when the law considers what is done in emulationem alterius , it acknowledges , illud non factum esse in emulationem alterius , quod factum est principaliter ut agenti profit , & non ut alteri noceat , l. fluminum . ffin . ff . de dam. infect . and the gloss formerly cited upon that law determines , that animus nocendi is not presum'd , if any other cause can be assigned : and in this case , haining can ascribe his opening this lake , to the prejudice it did to his land , and to his health , whereas it cannot be alleadg'd , that he ever exprest any malice against the fishers upon tweed , many of whom are his own relations . as to the instances given , wherein the law doth restrict the free use of property , the principle is not deny'd , but it is misapply'd . for the law only bounds the proprietars power in some cases , wherein his loss may be otherwayes supplied ; as in mureburn , and killing of smolts at such a season of the year , and in steeping lint in running waters , which may be as commodiously done in standing pooles ; but these pursuers crave this lake to be stopt at all times , nor is there an apparent reason here as there , this pursuit being sounded only upon a conjectural prejudice , and in these cases , the prohibition is made necessar by the generality , and frequency of occurrences , and yet though so circumstantiated , there is still a publick law necessar . and when a publick law discharges the free exercise of property , it ordains him in whose favours the prohibition is , to refound his expences who is prohibited : nor is the common-wealth here prejudg'd so much by this , as it would be by the contrare , for thereby all coal-heughs , lead-mines , and the winning of other minerals would be discharg'd ; whereas it is uncertain if this water chaseth away the salmond , which are at best but a casuality , and which will go but from tweed to other rivers in scotland , for they cannot stay in the sea. salmond-fishing is but an accident to rivers , but there being the common porters is their natural use . thus ( my lords ) you see that we contend for what is natural to rivers , they for what is but casual ; we are founded upon the nature and priviledge of property , they upon meer conjectures . the lords enclin'd to sustain hainings defence ; but before answer , they granted commission for examining upon the place , what prejudice was done . for the viscount of stormont , against the creditors of the earl of annandail . second pleading . whether a clause prohibiting to sell , will prejudge creditors . the deceast viscount of stormont , having by his majesties favour , and his own industry , acquired the lordship of scoon , he did tailie the same to mungo viscount of stormont , and the heirs-male of his body ; which failing , to john earl of annandail , and the heirs-male of his body ; which failing , to andrew lord balvaird , and the heirs-male of his body ; and to prepetnat his own memory , as the reward of his industry , he did cause insert this provision in the charter and seasine , viz. that it should not be lawfull to the said mungo , to dispone , or wodset any of the saids lands so tailied , or to do any deed whereby the saids lands might be evicted or apprised from them , without the consent of all the persons contained in that tailzie , or their heirs ; which if they contraveened , that they should , ipso facto , loose all right or title to the saids lands , and the right should accress to the next heir . the late earl of annandail , having very profusely and unnecessarily , spent not only his own estate , but likewayes contracted debts , for which the lordship of scoon is apprised , this viscount of stormont , as immediat heir of tailzie , craves that it may be declared , that the right to the said lordship of scoon is devolved upon him by the forsaid contravention , and that he should enjoy the said estate , free from any debts contracted by the earl of annandail . though this pursuit appears clearly to be founded upon the express will of the first disponer , who as he might not have disponed , so might have qualified his disposition with any conditions he thought fit ; and albeit such clauses as these tend effectually to preserve illustrious families , yet the creditors of the late earl of annandail do alledge , that though this his contracting of debt may furnish action against the earl of annandails heirs , for any prejudice they can sustain by his contraveening the foresaid provision , and though by vertue of this pactum de non alienando , all the persons in the tailzie were bound up from selling the saids lands ; yet no paction , nor provision could annull debts , which were bona fide lent by them , to a person who stood in the fee. which defence they urge by many specious reasons ; as first , that there is nothing so contrary to the nature of domintum , and property , as that he who is proprietar should not have the free exercise of his right and property , which free exercise consists in the liberty to alienat , and to make use of what is his own , for defraying his just debt , and answering his necessar occasions ; and they pretend , that it were most absurd and inconvenient , that a person should be raised to the title and dignity of a noble-man , and should be confest by the law , to have an absolute right to an estate , and yet that though he were captive in the turkish gallies , he should not be able to raise money for redeeming himself from that bondage ; and which seems yet more repugnant to the inclination , and interest of the disponer , that if a fine were imposed with assurance , that if the fine were not payed , the estate should forfeit , yet the proprietar behoved idly to stand , and see the estate sink . and though an advantagious occasion offered of buying his own superiority , his multers , or any such advantage ; yet the heir of tailzie could not raise money for that use , nay nor for alimenting himself , if the rents perish'd by war , or other accidents . this is to have , and not to have an estate , a paralitick property , and an useless right . to allow , that such a clause in a charter , might annull all the debts contracted by him to whom it is granted , were to destroy and ruine commerce , which is the very soul of a common-wealth , and which by how much it is incumbred by unexpected clauses , is by so much impared and burdened . commerce doth oftimes require speedier returns , and dispatch , then can allow a serious consideration , of all the securities and evidents of those , with whom we deal ; neither are these alwayes ready to be produced , nor doth the law in what relates to commerce , consider all that a lender may do for securing himself , but what is ordinarily done ; and it is most certain , that the most exact men do not enquire into the securities of those with whom they contract in lending money ; and though something may be pleaded in favours of ordinary clauses , which either law , customes , or decisions have allowed , yet it were extraordinarily prejudicial to commerce , to make a man forfeit his sum , because he did not guard against pactum de non contrabendo debitum , a paction as unsuitable to the nature of propriety , as unusal in this kingdom : and though the legislators do in some places allow such pactions as these , as is clear in lege majoratus in spain , yet they are made tollerable there , because being introduced by a publick law , they are universally known , and he who contracts with persons so prohibited there , forfeits his sum , because he neglects a publick law , and not because he contemns the privat prohibition of a disponer . nor are such pactions as these to be so severely observed , as necessar for preserving noble families , and so fit for our kingdom , which subsists by these ; for if the nature of propriety were to be alter'd , in so high a measure , as it is by this paction , it could in justice only be altered by a publick law , wherein the estates of parliament ( who are with us only judges of what is convenient for the nation in general ) might declare , that it were fit to turn such a paction as this into a law : and since for so many ages , the parliament has not thought this fit , nor have privat families ever introduced any such pactions till now , we must either judge , that these are not fit for privat families , or that those understood not their own interest . as to strict law , whereupon this pursute is only founded , the creditors do represent , that though lawyers have allow'd pactum de non alienando , yet they have extended it no further , then to annull dispositions made contrary thereto ; but they never stretch'd it so far , as to annull all debts contracted by the person prohibited to dispone , l. ea lege , c. de condict . ob . caus . dat . . though they allow'd these prohibitions , quando inductae erant à lege , à judice , aut à testatore per ultimam voluntatem ; yet they did not allow so much favour to prohibitions , which are only founded super pactis viventium , as is clear by craig . l. primo diages . . omnes terrae , ( inquit ille ) in feudum dari possunt , nisi quae à lege , judice , aut testatore in ultima voluntate dari prohibentur . . lawyers do not allow , that such prohibitions as these , though resolutively conceived , should absolutely annull all alienations made by the person prohibited , except the prohibiter reserve some dominium and property to himself in the thing dispon'd , by vertue of which reservation , he has power to quarrel all deeds done , and the person to whom he dispones is because of that reservation , not so absolutely in the fee , or property , as that his disposition should be unquarrellable ; as is clear by bartol . and baldus , both ad l. sancimus . cod. de reb . alien . non alienand . where they conclude , quod si is cui promissum est , de non alienando reservavit sibi jus aliquod in re , hypothecae , vel dominij , impeditur translatio , aliter non , & etiamsi pactum adhibitum sit in ipsa traditione , & cum pacto resolutivo , tamen non impedit dominij translationem , sed illo casu alienans tenetur tantum ad interesse . and therefore , seing the disponer reserved no right to himself , but that the late earl of annandail was fully in the fee , it were against the principles even of strict law , that debts contracted by him should be annull'd , as contrary to the prohibition . . when a person is prohibited to alienat , that prohibition is still restricted to voluntar and unnecessar alienations , the design of the disponer being to curb such of his successors , as should be luxurious , but not to bind them up when frugal , in occasions that are necessary and advantagious ; and the law is content to own such pactions , in odium of such as have fed the luxury , or prey'd upon the simplicity of those with whom they contracted , without any design to vex commerce , or to preclude those successours from being relieved in their honourable and necessar occasions . prohibita alienatione , tantum voluntariae prohibitae censentur , non vero necessariae , necessitas enim legem non patitur , as reiters observes , tract . de alien . cap. . sec. . which may be further clear , per l. . ff . de pet . haered . & l. . § . . ff . de legat . . and suitably to this , though in our law ward-lands recognise if they be voluntarily dispon'd without the consent of the superiour , yet he is allowed to sell the less half of his lands without the superiours consent , which is allowed by the law to relieve his necessities ; and though he cannot voluntarily alienat the greater half , yet all the few may be apprysed from him by his creditors , for satisfaction of his just debt . and therefore , seing the late earl of annandail was known to be a judicious person , and to have lived very soberly , and that these debts can be instructed to have been contracted for relieving him out of the necessities unto which he was thrown by the iniquity of the times , and his constant adhereing to his majesty ; it is by these creditors pretended , that these debts cannot be annull'd , as contrary to that prohibition , which they neither did , nor were oblieged to know . and since our law has thought , that inhibitions and interdictions should be published , and registrat for putting the subjects in mala fide , it can never allow , that such clauses as these which are neither published , nor registrat , should produce the same effect . to these arguments , they add , that god almighty has oftimes testified his displeasure against such clauses , whereby , his providence is insolently bounded by vain man , who endeavours to build himself a babel against heaven ; and by which clauses likewise , man will endeavour to perpetuat his own memory here , and call his land to all ages by his own name , against the express advice which the scripture gives . i do confess , ( my lords ) that those specious pretences , especially when prest with so much zeal , and eloquence , may make impressions upon such as are not intimatly acquaint with the principles of law ; but i hope , where we have such judges as your lordships , there can be little hazard from such objections : but before i endeavour to satisfie these , i crave leave to lay out before your lordships , those grounds whereupon my client founds his pursute . it is an uncontraverted , and first principle of law , that quilibet est dominus , & arbiter rei suae , and therefore may dispose upon his own as he thinks fit ; nor can any thing less then a law bound the exercise of this power ; and every man being judge of his own conveniency , lawyers do very properly term the conditions adjected by a disponer , leges contractus , and the feudalists call the conditions under which a few is dispon'd , leges feudi ; feuda ( saith zasius ) à pactis contra naturam suam sunt transmutata , pacto praegravante naturam feudi : and albeit our law has defer'd very much to equity , and to the principles of the civil law ; yet privat transactions betwixt parties , are not to be limited by those : but pactions are to be observed amongst them in their full extent , as is ordain'd with us by an act of sederunt , . law may be receded from by privat pactions ; and therefore , much more must privat pactions bind where they are contrary to no express law : and since pactum in refamiliari aequipollet juri publico , reg. maj. lib. . cap. . & lib. c. cap. . it necessarily followes , that as a law or decision might have establish'd their pactions , de non alienando , & non contrahendo debitum , which is acknowledged by the creditors themselves , that a condition insert in a charter may do the same as effectually : and if the pretence of publick equity and commerce , might alter the destination of a disponer , or mutual pactions of privat persons , what uncertainty would this occasion in humane affaires ? or who could be secure , that the transaction he made , should hold ? for there are few men who do not differ in their conceptions about publick commerce ; this were to unhinge all privat pactions , which persons had at first suited to their own necessities , and inclinations , and to make judges who should be ty'd to a fixed rule , unrestrain'd arbiters , over the affairs and fortunes of the people : for they might , almost in all cases , recede from privat transactions , upon pretext that they are contrary to publick good , equity , or commerce . but if any conditions adjected by disponers are to be observed , surely those which are adjected in a free gift and donation are most to be observed ; and it is certainly contrary to reason , that he who needs not dispone his own land except he please , may not dispone it as he pleaseth . as the law hath been very tender of the interests of all proprietars , so of all others , it hath been most tender of those rights , whereby men have declared how their will should be obey'd , and their memory perpetuated after their death . law designing thereby at once to encourage men to be frugal , because they may know that what they have gain'd by their industry , shall be disposed of according to their will ; and to comfort men against death , because they may know that their will shall be as exactly execute , as if they themselves were still alive , uti quisque de re sua legassit , it a jus esto . the law in all contracts , considers most , what was the design of the contracters , and when any thing is dispon'd for a particular cause , when that cause fails , the disposition falls as causa data , causa non sequuta , & si ea lege donavi , defectus causae impulsivae resolutionem contractus inducit , quia ea lege donavi cum alias non essem donaturus , l. cum te . c. de pact . inter empt . that such pactions as these are very lawful , and ordinary , is clear both from the civil , and feudal law. for by the civil law , though there were tailzies , yet the romans had their fideicommissa , which did very much resemble them , and by which the person cujus fidei res erat commissa , could neither dispone nor impignorat ; and if he did dispone or impignorat , that person in whose favour the fidei commissum was granted , might not only pursue the disponer for damnage and interest , but might likewise annull what was done contrary to the trust , as is clear , l. fin . cod . de reb . alien . non alienand . sancimus , sive lex alienationem inhibuerit , sive testator , hoc fecerit , sive pactio contrahentium hoc admiserit , non solum dominii alienationem , vel mancipiorum manumissionem esse prohibendam , sed etiam usus fructus dationem , vel hypothecam , vel pignoris nexum petitus prohiberi ; similique modo , & servitutes minime imponi , nec emphytenseos contractum , nisi in his tantummodo casibus , in quibus constitutionum auctorit as vel testatoris voluntas , vel pactionum tenor qui alienationem interdixit , aliquid tale fieri permiserit . these clauses , de non alienando , & non contrahendo debitum , are most allowable by the feudal law , where such tailzies are called feuda gentilitia , & feuda ex pacti providentia ; yea , and by the feudal law , it was not in the power of him to whom it was first disponed , to alienat or affect the few , either in prejudice of the superiour , or of him who was next to succeed : and what is more ordinar with us , then such obligations in contracts of marriage ? sir thomas hope is of opinion , that a right granted to a man and his heirs , secluding assignayes , could not be comprised by a creditor ; and sure that exclusion is not so valid , as a clause irritant and resolutive , which is actus maxime explicitus & geminatus . from these principles , there do arise very natural answers to the alledgeances proponed for the defenders ; for whereas it is contended , that such restraints as these are inconsistent with property , it is answered , that there is nothing more ordinar then to qualifie propriety , as appears clearly by the nature fidei-commissi , pacti gentilitii , and very many other instances ; and even in our law , ward-lands cannot be disponed upon without the consent of the superiour ; and it is more contrary to the nature of property and dominium , that a man cannot dispone upon what is absolutely his own , under what restrictions and qualifications he pleases , then that he who hath only a qualified dominium , should be in a capacity to dispone absolutely , upon what was not absolutely his own . that maxim whereupon we found , that quilibet est moderator & arbiter rei suae , has no exception exprest in it ; whereas the definition of dominium insisted upon by them , which is , that it is jus de re sua libere disponendi , has an exception adjected to it , which is , nisi quis lege prohibeatur ; under which word lex , the doctors alwayes comprehend pactum , and to prevent all mistake , some do expresly say , nisi quis lege vel pacto prohibeatur : so that in vain do they found upon the nature of dominium , since the very definition of it doth contradict what is alledged . to the second difficulty , bearing that these clauses are destructive of commerce ; it is answered , that the liberty of disponing upon our own , as we think fit , doth more nearly concern us , then the liberty of commerce ; especially in this kingdom , which stands more by ancient families , then by merchants ; and therefore seing these clauses tend necessarily to perpetuat families , and the other doth only tend to the better being of trade , we ought to prefer the pursute to the defence . and to what purpose shall we gain an estate by commerce , when we cannot secure it by such clauses ? nor are these clauses destructive of commerce , as is alledged , more then inhibitions or interdictions , and it is easier to read a charter , then to try the registers ; and england and spain , which are more interested in commerce then we , have by allowing such clauses , evidently declared , that they think them not absolutely inconsistent with commerce . but the truth is , real rights are not the foundation of commerce ; for commerce is maintain'd upon the stock of personal trust , and the main thing which traffiquers relye upon , is the personal trust which is amongst them , and not the consideration of any real rights . i do not conceive my self oblieged to take much notice of the creditors being in bona fide to contract with the earl of annandail ; for if annandail had no power to burden that estate , their bona fides could not give it him ; nor could a creditor apprise from him that to which he had no right , no more then i can comprise one mans estate , for another mans debt : and if annandail had only given a back-bond , declaring that the estate was only in his person by way of trust , the creditors could not have apprised it for their debt , though they might likewayes have alledged that they were in bona fide to lend . for , the law considers only bona fides , where those who alledged the bona fides , did exact diligence , which these creditors cannot alledge ; for if these creditors did not at all call for annandails rights to scoon , they cannot be said to have laid out their money in contemplation of those rights , but in contemplation of his other estate , or upon the account of a personal trust ; or if they did call for those rights , they might have very clearly seen his prohibition , and consequenly would have been secured against lending upon the faith of this estate . whereas it is urged , that such prohibitions as these , are only allowed , when they are introduc'd by testament , by a law , or by a judge ; but not when they are introduced by contracts or dispositions inter vivos , it is answer'd , that if it be allowable the one way , it should be the other ; for the design is rather more deliberat in a disposition , then in a latter-will : for the one uses to be an act of health , and the other of sickness , and the one is as contrary to commerce as the other is : and if any weight be laid upon the favour allow'd by the law to ultima voluntas , upon the accout of consoling the testator in obeying what he designs , this favour is equally communicable to both , for in both there is a designation made of the way and manner of succession , in which a dying man is as much concerned , when he makes a designation by a disposition , as when he makes it by a testament ; and therefore , les substitutions contractuelles ont les mesmes . effects en france , que les testamentaires , dans la prohibition d'aliener , as lowet observes , tit . . num . . and for which he cites many decisions ; and where he observes very judiciously , that the reason why the roman law did not allow these substitutions , and prohibitions in contracts , as it did in testaments , was , because testaments was the only way amongst them of disponing upon estates , and of making substitutions , and fidei-commissa ; to make which was not allow'd by contracts , quia auferebant testandi liberam facultatem , which subtilty is not now allow'd in this age : for on the contrary , tailzies and contracts of marriage , are now the ordinary wayes of disponing estates , and if men might alter such destinations of contracts , such as do contract with them would be in a hard condition . nor is there more weight in that part of the alledgeance , which bears , that those prohibitions do only annull deeds done in favours of him who has reserved some right in his own person ; for tailzies with such prohibitions , do imply a reservation in favours of those who are to succeed , and the tailzie is in that case but a right of trust to the behoof of the family ; and the provision in their favours is equipollent to a reservation . the design of both is the same , and therefore they should both operat the same effect . discourage not , ( my lords ) such as love to be frugal , because they hope their estate may remain with their posterity ; encourage not such as resolve to shake loose , by their prodigality , what was establish'd by their wise predecessours : by favouring the creditors defences , you will but gratifie the prodigality of heirs , or the laziness of creditors ; whereas , by sustaining my clients pursute , you will secure us as to our own pactions , and as to your decisions ; you will perpetuat noble families , and bound the luxury of such as are to succeed . the lords sustain'd the pursute , and repell'd the defences propon'd for the oreditors . for the lady carnagie and her lord , against the lord cranburn . third pleading . whether tax'd-wards be lyable to recognition . my lord chancellor , the late earl of dirletoun having no children , besides two daughters , and having an estate consisting of lands in scotland and england , did very judiciously at first resolve to marry one of them in scotland , and the other in england ; and in pursuance of this design , he bestowed elizabeth the eldest , upon william earl of lanerick , secretary of scotland , brother to duke hamiltoun , but which was more , a person admir'd for his heroick vertues , and whose alliance was courted at any rate , by the most eminent families of both kingdoms . the younger of these daughters , named diana , was match'd thereafter to the lord cranburn ; and as the earl of lanerick could not but have justly expected all , or at least the far greatest share of that estate , so the lord cranburn could scarce have expected thereafter any thing above an ordinar portion : yet , such is the capriciousness of old men , that the earl of dirletoun did , in anno , . by the impressions of some who were inveterat enemies to the family of hamiltoun , dispone the lands of innerweek , fenton , &c. failing heirs-male of his own body , to iames cecil his grand-child , and the heirs-male of his body . his majesty finding , that the said estate was most illegally dispon'd to iames cecil , without his consent as superiour , they holding ward of him , and that he had thereby defrauded the just expectations of so worthy a person as the earl of lanerick , and so the lands recogniz'd by the said disposition , did gift the saids lands to the lord bargeny , for the behoof of the earl of lanerick ; upon which gift of recognition , there is now a declarator pursued by the lady carnagie , eldest daughter to the said earl of lanerick , who thereafter became duke of hamiltoun , wherein she craves , that it may be declar'd by you , that she has the only right to these lands . there are very many defences propon'd for the lord cranburn , which i shall endeavour thus to satisfie . the first is , recognition has only place in feudo recto & proprio , whereas these lands hold tax'd-ward , in which manner of holding , all the casualities are taxed to a very inconsiderable sum , which sum is designed to be the only advantage that shall accress to the superiour : and the reason why ward lands recognize when they are sold without the superiours consent , is , because the superiour having so great interest in the lands which hold by simple ward , as to have the ward and marriage of the vassal , the law did therefore obliege him not to alienat that land , without the superiours consent ; which reason ceaseth , where the ward is tax'd , the superiours interest becoming very inconsiderable by the tax : nor can it be imagin'd , but that the superiour , having dispensed with the great casualities of ward and marriage , has consequently dispensed with the said restraint , cui datur majus , datur minus , praesertim ubi minus inhaeret majori & est ejus accessorium . for satisfying which difficulties , your lordships will be pleas'd to consider , that our law appoints all ward-lands to recognize , if sold without the superiours consent , and makes no distinction betwixt simple and tax'd-ward ; the general is founded upon express law , and there is no express warrand for excepting tax'd-ward . . seing these lands could not have been fold before they were tax'd , by what warrand can they be sold since they were tax'd ? seing though the casualities of ward and marriage were tax'd , and thereby these casualities expresly remitted , except in so far as they are tax'd ; yet there is no power granted to sell , without the superiours consent : nor is that priviledge remitted by the superiour , et fendum alteratum in una qualitate , non intelligitur alteratum in aliis & actus agentium non operantur ultra concessa . . the power of selling without the consent of the superiour , is different from the casualities of ward and marriage , which are here only tax'd ; for fewholdings are oft-times burdened with this restraint , and this restraint was of old taken off expresly by warrands under the quarter-seal , without taxing the other casualities ; so that this priviledge differs from these , and the one cannot be comprehended under the other . the second defence is , that by the feudal law , recognition ob alienationem feudi est crimen , & delictum feudale , against which error , etiam probabilis ignorantia excusat ; as is clear , lib. . tit . . the words are , quod enim dicitur alinatione feudum aperiri domino , intelligendum est cum à scientibus alienatum est beneficium , which are the words of the said law : whereupon , socinus , reg . . though he do give it as a rule , that emphyteuta rem emphyteuticam vendens a jure suo regulariter cadit , conform to the civil law , l. ffinal . c. de jure emphyteutico , he subjoyns these words , fallit ubi emphyteuta venderet ignorans rem esse emphyteuticam ; and accordingly , craig , de recognitione , lib. . diages . . and in the case of disclamation , lib . diages . . layes down for an undoubted principle , that ignorantia crassa excusat feudalia delicta . and here , the subject of the question is not in jure , & in thesi , whether ward-lands should recognosce ; but in facto , & hypothesi , his right being of the nature , and in the terms foresaid , he might dispone without hazard , as to which , an error in him , who was an illiterat man was very excusable , especially having consulted peritiores , and having been assur'd by very eminent lawyers , that there was no hazard in disponing those lands , without the superiours consent , they holding tax'd-ward , which was sufficient to have defended him in feudo amittendo . to which it is answered , that ignorance of the law excuses no man ; and the case having been at best dubious , the vassal should not have hazarded upon what the law might construct to be a disowning of his superiour ; and since every man is oblieged to know the nature of his own few , the law doth presume , that every man doth know it , nam quod inesse debet , inesse presumitur ; and therefore , craig doth very well conclude , pag. . tit . de recognitione , that ignorantiam , pretendens vix audiendus est , cum sit crassa ignorantia , feudi sui conditionem ignorare : and though he observes there , that excusabitur , qui feudum suum non militare credidit , cum militare est ; yet , that cannot be extended to this case , wherein the vassal certainly knew that his few held ward : and though the law sometimes doth excuse a vassal , who had reason to doubt the condition of his own few , because of some mysterious clause , or because he was a singular successor , and had not recovered the writes of the few as to which he transgressed , or was necessitate to do the deed , for which he was challenged , by poverty , or such other occasions ; yet , that in the general , ignorance did not excuse delicta feudalia , is very clear by the opinion of the learnedest feudalists , laur. silv. de . feud . recog . quest . . praepos . in cap. . § . praeterea de prohib . feud . alienat . and in our law , it was never found , that ignorance did defend against recognition , the falling of an escheit , disclamation , &c. and if the superiour were oblieg'd to prove the vassals knowledge , it were impossible ever he could prevail in any pursute ; knowledge being a latent act of the mind , which can never be proven but by oath ; and to refer knowledge to the oath of the vassal , were not only to frustrate the superiour , but to tempt the vassal to commit perjury ; and albeit the feudal law did allow the vassal to purge his guilt , by deponing in some cases upon his design , yet that was only allow'd in cases where the external act was of its own nature indifferent , such as the speaking of contumelious words , that were to receive their genuine interpretation from the design of the speaker ; and that did never take place in clear acts , such as this is , wherein the vassal hath sold his few without the consent of the superiour . the thrid defence was , that where there is no contempt , there can be no recognition ; but so it is , that as the presumption of contempt is taken off by the constant tenor of the earl of dirletouns respect for his master , the king ; so the disposition is given to be holden of the king , and that implyes as much , as if it had been expresly provided , that the alienation should be null , if the superiour should not consent and confirm the same ; and such an express provision should have certainly , in the opinion of all feudalists , defended against recognitions . to this it is answered , first , that the clause , si dominus meus consenserit , doth not defend against recognition , though exprest , verbis geminatis , & pregnantibus ; and unless it be resolutively conceived , bearing that it shall not be valid alias , nec alio modo , and although all these cautions be adhibit , yet many feudalists are clear , that this will not defend against recognition , where the person to whom the few is disponed attains to possession , as cranburn here did ; for they think , that in that case it is but protestatio contraria facto , & plus valet , quod agitur quam quod simulate concipitur : and if this were sustain'd to defend against recognition , no few should ever recognize , for the vassal should still defraud his superiour of any advantage , by inserting a clause si dominus consenserit ; upon which considerations , your lordships predecessours have , by a decision the . of february , . found , that lands may recognise notwithstanding of this condition . . the disponing of lands to be holden of the superiour , is not equivalent to the clause , si dominus consenserit ; for the disponing lands to be holden of the superiour , prov●nit non ex facto vassali , sed ex natura feudi , & ex stilo ; all fews being given in scotland , to be holden either of the superiour or the disponer , à me , vel de me , as shall best please the receiver ; so that the disponing the lands to be holden of the superiour , doth not shew any clear design the vassal had to require the superiours consent , and consequently cannot defend against recognition . to fortifie this point , it is urged by the defender , that where there is no prejudice to the superiour , there can be no recognition ; and there is no prejudice to the superiour in this case , seing the superiours prejudice is either upon the account , that the vassal redditur pauperior , or that the disponing without the superiours consent obtiudes upon the superiour a stranger ex al ena familia & inimica ; whereas in this case , the disponer was not pauperior , having reserved his own liferent , and in effect , the bee it self , and power to burden the same , and contract debt , and alter the tailzie , and dispose of the estate notwithstanding of the same ; and the lord cranburn cannot be said to be a stranger , being descended of the earl himself , and being his grand-child . to this it is answered , that in law , all such persons as are not alioqui successuri , sunt extranei ex tenore investiturae , and by two express decisions related by p. spotswood and hope , it was found , that dispositions made to the brother or grand-child did infer recognition , though they were likewayes ex familia , nec licet ( saith craig , pag. . ) vassalo anum ex liberis suis eligere , sed vel naturae , vel juris ordo sequendus , vel domini electioni res est permittenda . the fourth alledgeance was , that only perfecta translatio domini , can infer recognition ; whereas the sasine here is null , because it is given to be holden of the superiour , and sasines of that nature are intrinsically null , quo ad omnes effectus , except the superiour confirm the same . to this it is answered , that si vassalus fecit omne quod in se erat , to alienat the few without the consent of the superiour , that alienation will infer recognition , though the alienation was null otherwayes , as is clear by craig , pag. . quod si traditionem vassalus fecerit , ea tamen sit invalida & nulla exempli causa si chartam dederit , de fundi alienatione tenendam de domino superiore , quam sasina sequatur . et dominus superior neque confirmaverit , neque ratam habuerit , videtur hanc alienationem nihil periculi secum trahere , cum conditionalis videatur & sub hac conditione contracta , si dominus ratam habuerit , aut confirmaverit , quae conditio , cum non evenit & alienatio nulla sit ex defectu consensus superioris , & paria sunt in jure omnino non fieri , & non jure fieri ; sed profecto in hoc casu puto etiam feudum domino aperiri , nam quandocunque vassalus id omne fecit & exequutus est , quod in se erat , licet factum illud de jure non teneat , tamen quatenus in se est , domini mutationem se velle testificatus est fidemque fregit : in hoc etiam casu a feudo cadet , licet alienatio nulla sit . suitable to which , baldus has very well observed , that licet alienatio sit nulla , ob vitium litigiosi feudum tamen fit caducum , quia in prohibitis non requiritur juris effectus , quod enim prohibitum est effectum sortiri nequit ; and if only effectual alienations could infer recognition , it could never be inferred ; for all alienations , to which the superiour doth not consent , are null , and by the act of parliament , . all seasines of ward-lands granted to be holden few , are declar'd null , and yet are declar'd to be the ground of recognition . and whereas it is alledged , that craig , pag. . relates the case betwixt mackenzie and bain , in which it was found , that lands did not recognise , because not registrat within fourty dayes . it is answered , that there the vassal non fecit omne quod in se erat , not having registrat the sasine timeously , and so the tradition was compleat ; nor did the person to whom it was disponed possesse in the case cited , the land disponed , as cranburn did in this : and by the opinion of rosenthal , capite . . conclus . . feudum ( inquit ille ) absque domini consensu aperitur etiamsi alienatio ex alia aliqua causa forte omissa solennitate legis aut statuti , aut simili , esset nulla modo possessio vera & actu tradita sit nam doctores in hac materia considerant prejudicium ipsius domini magis in traditione reiquam in alienatione . vide curtium , jun. de feudis , pag. . num . . whereas it is alledged , that the sasine is null , as given upon a general letter of atturney out of the chancellary , nor are general mandats sufficient in prejudicialibus , and that this sasine was given to a minor , who was extreamly laes'd . to both these , the former answers are oppon'd , wherein i have endeavoured to prove , that the alienation may be null , and yet may infer recognition ; our law considers not minority , as to casualities competent to the superiour , as is clear in the cases of non-entry and rebellion : and since the act of the disponer , is that which only infers recognition , it imports not what the condition of the person was to whom it was granted . it is also pretended , that the sasine is null , as being actus legittimus qui non recipit aiem , nec conditionem , l. . ff . de regjuris ; for since executione actus statim perficitur , its inconsistent that actus should be perfectus , & exequutus , and yet should be suspended upon a condition , as this sasine is , which bears , failing heirs-male of the earl of dirletouns body . to this it s answered , that this sasine cannot be call'd actus legittimus , that being ordinarily a term appropriat to judicial acts , whereas there is nothing more ordinar then that sasines should be conditional , as we see in sasines , given upon warrandise lands , and in sasines following upon wodsets ; nor is it denied that sasines may bear resolutive conditions , and if so , why not other conditions , these being of all others most severe ? nor have any lawyers written upon this subject , who have not divided sasines in puram & conditionatam . the fifth alledgeance was , that there can be no recognition where the vassal had power to dispone , and the earl of dirletoun had by his charter , power to dispone ; for these lands are disponed in his charter haeredibus & assignatis , which implies potestatem alienandi , which the defenders learn'd advoc●●s do found upon tit . . lib. . feud . si quis enim ea lege alicui feudum dederit ut ipse , & sui haeredes , & quibus dederint habeant qui sic accepit poterit vendere , vel alienare sine consensu domini ; for which likewayes they cite craig , dicta . diag . . clarus , hottoman and other feudalists . to this it is answered , that this general clause haeredibus & assignatis , is only meer stile , and the word assignatis is used here improperly , as it is used in bonds , in which a man binds himself , his he●●s and assignayes , whereas it is impossible for a man to bind his assignayes . argumentum a stilo is not still probative , especially in this age , wherein stiles are become too laxe , and in our eldest stiles , there is a luxuriancy , which deserves rather to be corrected , then allowed ; thus inhibitions forbid us to alienat moveables , and single escheits give right to reversions , albeit our law reprobats our stile in both these ; and this clause was not designed to import a liberty to alienat , for els there could be no recognition in scotland , seing all charters bear that clause , and such as have that clause have oftimes been found to recognise , & generales clausulae non extenduntur ad illicitum : and that by the feudal law , the word assignatis is not equivalent to quibus dederit , is clear ; seing the feudalists use no such term as assignati ; and in our law haeredibus legittimis , & assignatis , must not be interpreted as if it were equivalent to quibus dederit , but to that clause used by doctors , quibus legittime dederit ; and all feudalists are positive , that the clause quibus legittime dederit , implies necessarily that the superiours consent is still necessar . likeas , generalis clausula non extenditur ad prohibita ubi fieri potest congrua interpretatio ; but so it is , that the word assignati may be understood of comprisers , or of such to whom the vassal should dispone the lesser half of the few : so that when a few is granted haeredibus , & assignatis , it is lawfull for creditors to comprise that few , or for the vassal to dispone any part thereof , not extending to the half ; but that clause can never import , that it should be lawfull for him to dispone the whole , without the superiours consent , that being an interpretation which the parties themselves never designed ; and priviledges which are inherent in the nature of a few , ( as this is ) are never understood to be discharged , except where they are discharged expresly . the defender , my lords , hath told you , that he propones all these defences jointly , which may discover to you , how frail his own advocats judge these defences to be : arguments which are weak , being join'd , may by their mutual assistance plead pitty , but they can never astruct the proponers right , no more then many cyphers can make a number , nor many uncertainties a certainty : this is a shift which eloquence , not law , has invented , and may prevail with arbiters , but should seldom convince judges . the lords found , that these lands , though holding only taxt-ward , did recognize ; and repell'd also all the other defences . for alexander carmichael , against the town of aberbrothock . fourth pleading . how far the borrower in commodato estimato , is lyable , if the thing be lost , vi majore . when the town of dundee was so fortified , that its inhabitants had reason to expect security to the ships which lay under their walls , either by way of defence , or capitulation ; the town of arbroth did crave the lend of some cannons from alexander carmichael : but because the said alexander , as a burgess in dundee , might have expected from the foresaid garrison , or from his being able to sail his armed ship where he pleas'd , perfect security to his guns , he therefore refused to lend the same , till patrick wallace and other privat burgesses of arbroth should estimat the guns , and oblidge themselves to re-deliver the saids guns free from all skaith , harm , or danger , or els to pay the sum of . l. as the price agreed upon : and that in respect he foresaw , that the guns were not only lyable to great danger , ex sua natura , but likewayes because arbroth was a naked town , wanting walls , men , and skill ; and albeit the town of arbroth did owe to the saids guns the resistance they made to cromwels ships in three several attaques , wherein if they had wanted guns , there town had been burnt , yet so unjust are the saids patrick wallace , and others , that when the foresaid liquid sum is charg'd for , they suspend upon this reason , viz. that this contract is commodatum , & commodatarius non praestat casus fortuitos : but so it is , they subsume , that these guns were lost casu fortuito , in so far as the defenders endeavour'd to carry them to dundee ; but being beat in by cromwels ships , they were forc'd to bury them in sands , out of which they were raised and taken by those enemies . to which it was answered , that though in commodato simplici , commodatarius non praest●t casus fortuitos , yet in commodato estimato , it is otherwayes , which is most clear from l. . § . . ff . commodato , the words whereof are , et si forte res aestimata data sit , omne periculum praestandum ab eo , qui aestimationem se praestaturum receperit ; which holds not only in commodato , but in all other contracts , where any thing is estimat , as is clear in the general , by l. . § . . ff . de estimatoria , estimatio autem periculum facit ejus qui suscepit , aut igitur rem ipsam incorruptam debet reddere , aut estimationem de qua convenit : many instances of which general may be given in several contracts , but it shall satisfie me to name dos estimata , wherein it is very clear , that the valuing of things delivered , did obliege the receiver to re-deliver either the thing valu'd or its price , though the thing valued did perish casu fortuito , as is clear , l. . ff . de jur . dot . plerumque ( inquit ulpianus ) interest viri res non esse estimatas , ideo ne periculum earum ad cum pertineat maxime si animalia in dotem acceperit , vel vestem qua mulier utitur , eveniet enim si estimata sint & mulier attrivit ut nihilominus maritus earum estimationem praestet : which is also most clear , l. . § . . ff . de jur . dot . and if at any time the law relax any thing of this alledged severity , in favours of him who receives the thing valued , it is upon the account that the thing valued was delivered for the use and advantage , not of him who received it , but of him by whom it was entrusted ; as if in our case , my clients had entreated the citizens of arbroth to receive their guns , and had valued them at the delivery ; the law in that case , would not have burdened the receivers with the loss , where they gave no occasion to the lend ; but in the case where the thing valued was lent at the desire of the citizens of arbroth , and for their advantage , without any possible advantage for the lenders , in that case , which is our present case , the law doth in express words tye the receivers to re-deliver either the thing lent , or the estimation , l. . § . . ff . de estimatoria ; si margarita tibi estimata dedero ut eadem mihi adferes , aut pretium eorum , deinde haec perierint ante venditionem , cujus periculum sit ? et ait labeo quod & pomponius scripsit , si quidem ego te venditorem rogavi meum esse periculum , si tu me tuum , si neuter nostrum sed duntaxat consensimus teneri te hactenus ut dolum & culpam mihi praestes . nor can this be well doubted , if we consider the nature of estimation or valuing , and the design of these who enter into such contracts , by their estimating the thing lent . all lawyers and others are of the opinion , that commodatum becomes by estimation , anomolum & irregulare , and the estimation were to no purpose if it did not bind the receiver of the lend to more then what would follow , ex natura commodati simplicis ; and therefore , seing commodatarius was here liable ex culpa levissima from the nature of the contract , because the lend was given only for the advantage of the lender : it must necessarily be infer'd , that the receiver of an lend that is valued and esteemed must be furder liable , els there would be no difference betwixt a thing lent simply , and lent after it is valu'd , and consequently , the valuing before lending should operat nothing ; so that seing in an ordinar lend , the receiver would be liable in culpam levissimam , the receiver must be liable in casus fortuitos , where the thing lent is estimat before lend●ng , there being no case ultra culpam levissimam praeter casus fortuitos . . the lender did secure himself by a bond and the foresaid obligation , to restore the price , if the thing lent were not free of skaith , hurt or damnage . . if there was any thing ambiguous in this case , yet the clause behoved to be extended , ad casus fortuitus , and that must be thought to be the meaning of the parties from the following rules , whereby ambiguous contracts are to be interpret , viz. first , a write is alwaies to be interpret against the subscriber , who should impute to himself , that he did not clear what he intended , and it were unreasonable that his obscurity should be a snare to another person , scriptura semper est interpretanda contra proferentem . . that in reason should be constitute to be the meaning of the write , which if it had been treated of , had certainly been condescended to by all parties : but so it is , that if at the time of the lending of the saids guns , the lender had refused to lend them upon any other terms , then that he should have been secur'd against all events ; it is not to be imagined , that the borrowers would have hazarded their lives and fortunes , and the honour both of their country and town , for the hazard of pound ; and it is as improbable , that the lenders would have given the guns , they being stated under all the circumstances above narrated . . it may appear both from the circumstance of time , and the nature of the thing lent , that they foresaw the risk these lent guns were like to run ; for none but idiots would not have foreseen the same : and it were against reason to think , that a man would secure himself against an open and seen hazard , especially being to lend them to persons who behov'd to buy others , if they had not got the lend of those , and who would have bought these guns , if the lender would have sold them , and if they had been sold , the buyers had run all risks . to this it was replyed , that first commodatum estimatum was only so called , when the lender did estimate the thing lent , and did take the commodatarius only oblieged to restore not the thing lent simply , but either the thing or value , at the option of the receiver , as was clear , because the receiver might have oppon'd compensation against the lender , when he was pursuing for the thing lent , or might make use of the thing lent as he pleased , which was not our case ; because the receivers of the guns could not have retained the same , or have rejected compensation against the lender , though the lend had been damnified ; but it was in the option of the lender to have call'd either for the guns , or the estimation , and this estimation and value was agreed upon , to the end that the value might be repeated , if the guns were lost through negligence , or deterioration , but not if they were lost vi majore , or casu fortuito . . by the expresse words of the bond , the value is only to be restored in case the guns be damnified , but there is no provision made against their being lost , nor can that be presumed to be the meaning of the parties , because ille presumitur sensus verborum qui est rei gerendae aptior , and casus fortuitus is very contrary to the nature of commodatum . . this is not only casus fortuitus , but insolitus , to which no contract is ever extended , and this case of the cannons being taken out of the sands , could never have been foreseen , seing it is absolutely extrinsick , both to the use of cannons , and to the ordinar hazards of cannons ; and it was unusual and ominous for a scots man to provide against their being over-run by the usurpers . . these guns had been lost , if the lender had retained them , seing the usurpers , after the taking in of dundee , made prize of all their ships and guns . to which it was duplied , that the former law was oppon'd , bearing that the receiver commodati estimati in general suscipit omne periculum , and that is properly commodatum estimatum ubi intervenit taxatio pretii : and though there may be such a commodatum estimatum as is mentioned in the reply , yet , that omne commodatum estimatum is of that nature is denied , and seing the answer is founded upon an express and general law , it cannot be taken away but by a law as express , clearing , that there is no commodatm estimatum but in the case instanced in the reply . likeas the interpreters , and particularly faber , ad h. l. give instances of commodatum estimatum , in the case where the thing estimat is to be restored , and estmatio in general produces that effect of transferring the hazard as will appear , per l. . 〈◊〉 . . ff . de estimatoria ; by which it is likewayes clear , that if the thing it self be not given back , the estimation must be delivered , and that the estimation extends not only ad deteriorationem , sed etiam ad interitum . likeas in the general , estimatio is called a kind of vendition , as is clear by calvin , in his lexicon upon that word , and the citations there adduced ; and in venditions , the receiver undergoeth all hazard , and therefore he should run the same hazard in commodato estimato . as to the second , it is answer'd , that he who is oblieged to deliver any thing free from all hurt and damnage , is much more oblieged to deliver back the thing it self , for it is probable , that he who guarded against the lesse danger , would guard against the greater . whereas it is alledged , that this must be the meaning of the parties , the former rules are oppon'd , and it is added , that this case could never be called casus insolitus , nor fortuitus , in respect that is casus fortuitus which the skillfulest or wisest man could not foresee ; but so it is , every wise or prudent man might have , and could not but foresee this ; and the brokard rei gerendae aptior is only extended to regular contracts , but not to irregular contracts as this is , wherein it is confest , by both parties , that they intended to transgress the ordinar rules and nature of commodatum estimatum , and to wrest the nature of this contract to their particular case ; and certainly , sensus aptior rei gerendae at that time was , that the lender , who might have secured his own guns , and who was not oblieged to lend them , did design to secure himself against all hazards , when he caused estimat his guns ; else , why should he have caused estimat them ? and to the third , where it is alledged , that the raising of guns out of sand is not the hazard which guns ordinarily run ; it is answered , that the burying and sinking of cannons is very ordinar ; but it being foreseen in general , that these guns might perish by the usurpers , and in that quarrel , that was sufficient , though every particular circumstance was not foreseen : for if the guns had been stollen away by night , or had been taken in the return , certainly the receiver would have been lyable ; and yet that is not a more ordinar way of lossing guns , then this now instanced . to the fourth , bearing , that those cannons had been lost however ; it is answered , that the charger is not oblieged to debate what hazard they would have run , he having secured himself by a bond , as said is , and that might be aswell alledged in venditions , and yet none ever alledged , that the buyer did not run all hazards of the thing bought , and was not oblieged to pay the price , because the seller would have lost the thing sold , if it had remained with him : but the truth is , the skipper , nor no burgess of dundee wants any of those guns which were aboard in their ships at that time ; and it is probable , that though the ship and goods had been taken from this pursuer , he had none to blame but these defenders , who by borrowing his goods , dissabled him to venture to sea with his ship : nor can it be imagin'd , that the burying of goods in presence of the whole town , and leaving their carriages open to the usurpers , was exact diligence ; nor did ever the receivers , after the guns were taken away , either inform the chargers that they might do diligence , or make application to the usurpers for restitution , as dundee , st. johnstoun , crail , and other towns did ; and wherein they prevail'd so , that these defenders are not only lyable ad casus fortuitus ex natura commodati estimati , but for not doing exact diligence , ex natura commodati proprii . the lords found , that the borrowers were not lyable to pay the price , since the cannons were lost casu fortuito , & vi majore . for sir thomas stewart of gairntully , against sir william stewart of innernytie . fifth pleading . how fury and lucid intervals may be proven . the deceast sir william stewart , finding his daughter jean fit enough to marry , did provide her to a portion of twenty thousand merks ; in which , though he substitute sir william her brother and others , yet your lordships did , by a solemn decision find , that she remained still in the fee , and might have disponed , notwithstanding of the quality of the substitution , and therefore you did sustain a right and assignation made by her in favours of sir thomas her brother . sir william resolving rather to hazard the honour of his family and sister , then the loss of the sum ; did at last alledge , that the assignation was not valid , seing his said sister was furious , both before and after the granting of that right : whereas sir thomas , in maintenance both of his sisters honour , and of the right made by her to him , did contend , that she had dilucid intervals , and at the time when the disposition was granted , she was sanae mentis ; for proving of which , mutual probation was allowed to both parties , and the testimonies having been published , it is now alledged for sir william , that albeit your lordships had found that his sister was in fee , when the case was at first debated , without relation to the condition in which she was when she made the said right ; yet , though the substitution was found by your lordships not to be a sufficient ground to take from her the power of disponing , it behoved at least to qualifie the said power , as that she should not be allowed to dispone upon that sum expresly against the fathers destination , except she were proven to be a person of an entirely sound judgement ; and it behoved to be thought , that the father perceiving the frailty of her wit and spirit , did only design she should have an aliment during her life , but that after her decease , the sum provided should descend to the person substitute by himself . . furiosity is a disease which so disorders the judgement , that those who labour under it are in law accounted unfit to make any right , or to adhibit any consent ; and fury being once proven , is still presumed to continue : so that it being proven that this gentlewoman was once furious , in so far as she tore her cloaths , and did beat them who attended her , it must be presumed that this fury did continue , except this were taken off by a most pregnant probation , wherein she could be proven , not only to have done acts of folly during the time that she was about the compleating of that right , but that she had for a long time , both before and after , enjoyed not only adumbratam quietem , but an entire soundness of judgement , neither tainted with , nor clouded by that fury , which did formerly incapacitat her to make the right that is now quarreled . for all lawyers , and particularly zaccke●s , do distinguish betwixt a madness , which hath only remissionem , sed-non intermissionem , where simplicity continues when the fury ceases , and that fury which doth sometime totally recede : in the first of which they require , that the persons quorum furor est intervallatus , do not only actus sapienti convenientes , sed etiam actus sapientis , and that they shew not only a present madnesse , but that they testifie by a long tract of continued recipiscence , a sagacity , which proves that they are fully returned to the vigour of their judgement , and which is able to take off the presumption which lyes against them , that semel suribundus , semper furibundus prasumitur . whereas , in the case here contraverted , it s prov'd , that the said jean was at best of a very weak judgement , never able to converse with others , nor to administrate her own affairs ; and at the time she made the disposition , there is nothing proven which could have demonstrate her to have been in such a lucid interval , as might have sustained the act she was then doing , she having discours'd to no man at that time , nor so much as read the disposition , which no wise person would have omitted , and having contradicted her fathers express will , without gratifying any of her other relations . but before any distinct answer can be return'd to the former representation , your lordships will be pleased to consider , that the two greatest priviledges of mankind are , that by nature he is a reasonable creature , and that by law he may freely dispone upon what is his own ; whereas , this unnatural brother , designs to rob his sisters memory of both these allowances , and by denying her every thing that is fit for a reasonable creature , burdens himself to prove her a brute . somewhat is due to the modesty of her sex , more to the being dead , ( that great sanctuary against all malice ) but most of all is due to the name of a sister ; and therefore , seing by how much the danger is great , that may result from the probation , by so much the probation ought to be the more concluding and pregnant : it doth necessarily follow , that the probation to be deduced in this case , ought to be most conclusive , seing it tends to take away the greatest priviledges which were competent to the defunct , either by law or nature . and albeit our law allows not the depositions of witnesses , to prove in cases exceeding one hundred pounds ; yet , by this method , dispositions of the greatest consequence may be enervat , upon the depositions of witnesses , and that just law not only disappointed , but cheated : and what danger are we exposed to , when two fellows may , by their assertions , prove us to be mad , after our death , and thereby disfame our memories , and alter our destinations ? the settlement whereof , is the most serious earthly satisfaction which we have in that last agonie . it is very remarkable , that law puts a difference betwixt fatuity and furiosity . fatuous persons , whom we call idiots , are these who want spirit enough , tardi , bardi , moriones , maccarones , qui inopia caloris & spirituum laborant : but furious persons are such , as have too much heat and spirit ; and our law hath placed a distinction betwixt these two ; for though neither idiotry nor furiosity can regulariter be proven , otherwayes then by the cognition of an inquest upon b●ieves rais'd out of the chancellary , as is clear by craig , and by the . act. . p. j. . which inquest must consist of fifteen neighbours , who knew the person who is alledg'd to be furious or idiot , and who must call for that person before them , and examine her ; so zealous our law hath been for our honour , and so jealous of witnesses . yet , sometimes it hath permitted open and notorious fury to be proven after the death of the furious person , as in the case cited ; but no instance can be given , wherein fatuity or idiotry , was ever sustained to be proven after the idiots death : which was most reasonable , for idiotry consisting in the want of wit and judgment , which habitude is not subject to the senses , but must be inferred by conference and consequences , therefore it should not be sustained upon the depositions of witnesses simply , but upon the knowledge of an inquest , who are in our law both judges and witnesses , and are in quality and prudence , above witnesses . and if a person can count their ten fingers , they are not accounted idiots , nor fatuous ; for , fatui sunt ( as zackeus observes ) illi tantum qui omni ratiocinatione & judicio carent . so that this gentlewoman cannot be proven to have been fatuous , being now dead ; but though she were alive , and that the probation led might be legally receiv'd , yet she cannot upon that probation , be said to be fatuous , seing it is proven , that she gave money to buy necessars , that she came to table , went to church , convers'd with neighbours , and ask'd for her friends at strangers who had seen them , and that she carry'd her self ordinarily as other gentlewomen did , or ought to have done . lawyers sometimes speak of imbecillitas & debilitas judicii eorum quae sensum aliquem habent , licet diminutum ; and such are by all lawyers allowed to marry , and make testaments , &c. as is observed by gomez . resol . tom . . c. . grass . in § test●m . quest . . and thus it was decided , . octob. . in frizland , as sand. lib. . def. . relates ; and this at worst is our case : for all that can be alledged against this unfortunat gentlewoman , is , that she was of a slow and dull humour , as melancholians are , these hypocondriack vapours being to their spirits , what storms are to the sea , which though they disturb them for a while , yet cannot they hinder them from returning fully to their former calm . before i come to clear , that she was not furious , your lordships will be pleas'd to know , that furor is defined to be dementia cum ferocia & horrenda actionum vehementia ; fromanus , de jure furiosorum , p. . in law he is said , omni intellectu carere , l. . ff . de officio , presid . qui nec scire nec discernere potest , l. . ff . de acq . haered . qui caret affectu , l. . § . . quib . ex caus . in possess . qui caret omni judicio , l. . § . . ff . de judici . and because prudence is qualitas quae inesse debet , ideo nemo praesumitur furiosus , sed potius sanae mentis ; and two witnesses , deponing de sana mente , are preferred and believed more then a hundred who depone upon fury , menoch . lib. . presumpt . . lawyers divide fury , in continuum , ubi animus continua mentis agitatione semper accenditur & interpolatum , seu intervallatum , qui dilucida habet intervalla , quorum furor habet indicias , & quos morbus non sine laxamento aggreditur , l. . c. qui test . facere poss . & quos furor stimulis suis variatis vicibus accendit , l. . c. de contr . empt . in whom fury is but an ague : madnesse is but a disease in the one , but it is the temperament and the complexion of the other ; in the one the judgment is but darken'd as by an eclipse ; but in the other , it lyes like the cimmerians under a constant night . that this was not a continued fury , is clearly proven ; for the depositions bear , that she was only seiz'd with these fits that troubled her , twice or thrice in a year , and that at other times she had , non solum remissionem , seu adumbratam quietem , sed etiam intermissionem & recipiscentiam integram , for they depone , at other times she was as well as gentlewomen are , or ought to be . that which is contended then is only , that the lucid intervals are not clearly proven , at least it is not proven that she at the time of the subscribing that assignation , and for a considerable time before and after , was in a lucid interval ; but the contrary will , i hope , appear from these positions . first , by the probation it will appear , that she was never mad and furious ; for she at no time wanted all sense and judgement , albeit she was at sometimes opprest with an overflowing and abounding melancholy , which distemper differs clearly from madnesse , as zackeus observes very well , lib. . quest . . melancholici ( saith he ) sunt timidi & merentes vel ridiculi ; furiosi vero in perpetuo mo●u audaces , ac praecipites . and it will appear from the probation , that she went to table , to the church , and to all societies , which is not allowed to mad people ; that in her fits , she did only laugh and sing , and when she did begin to talk idlie , the least sign would have made her recover her self , which is a clear sign of melancholy , but no wayes of madness . and the father , who best knew the condition of his own daughter , was so far from thinking her mad ( as is pretended ) that he left her a considerable portion , which implyes not only a liberty , but an invitation to marry : whereas if he had thought her mad , doubtlesse he had only left her an aliment , but no portion , and would have recommended , that she should not marry ; for what father desires to have his family disgraced , by giving out a mad daughter ? and the physitian also depones , that she was only troubled with a melancholy ; which humour , though when it boils over , will occasion great distempers , yet , that stock of vapours being spent , the brain returns , or rather continues , in its natural and exact temper . . the witnesses who depone can give no such account of their causa scientiae , as can infer madnesse , for she being , as they confess , alwayes removed to her chamber , when her distemper did shew its first twilights , they could not exactly know that habit of the minde , that is necessar to be known in such cases ; whereas , the causa scientiae they give is , that they heard her commonly repute mad : and one depones , that passing by her chamber-door , he saw her laugh and sing , and heard her talk idly , which was too transient a way to know the nature of a distemper , which the law ordains to be known by conference , and frequent conversation . . albeit in law , semel furiosus semper praesumitur in furore perstitisse , yet when lucid intervals are once proven , as is very clearly proven here , quod actum erat , potius praesumitur in dilucido intervallo , quem in furore gestum , si actus ita gestus fuerit , ut nullum stultitiae signum appareat . this mascard . gives for a rule , conclus . . and there he cites , afflicit . decis . . jason . ad . l. furiosum , c. qui testamentum facere possunt ; and covarr . de sponsal . part . cap. . and thus the roman senat decided of old in testamento tuditani , cited by val. max. lib. . cap. . so that albeit where the intervals are not proven , it is requisit , that actus sapientis , and the condition of the person before and after for a considerable time , be proven , to make the act appear to be wisely done ; yet , where the lucid interval is proven , actus sapienti conveniens for the precise time is sufficient , for els the proving prior lucid intervals should be unnecessar , seing though prior lucid intervals were not proven , yet it would be sufficient , that the act were actus sapientis , for that per se is exclusive of madness . . the nottar doth assert in the assignation , that at the time she was of a sound judgement , upon which certainly he would have depon'd , had he been alive , so that he is now a proving witnesse : and froman . p. . thinks the nottars assertion in such a case of great moment . but above all , that which convinces me is , that sir thomas being interrogat upon his oath , whether he believ'd she was then of a sound judgment , doth depone affirmative , and though this be only an oath of calumny , yet it is equivalent to an oath of verity , nor do they differ ; nor could an oath of verity be more express , and so not more proving . and whereas it is contended , that this act was of its own nature , rather a sign of madness , then of prudence ; seing she did not read over the assignation which she subscrib'd , and seing she oblieged her self therein , not to marry without her fathers consent , and that she therein altered that destination made by her father : it is answered , that at the time of her subscribing that paper , she desired that a nottar might subscribe for her , because she could not write ; and when the nottar told her that she behov'd to subscribe her self , else the paper would be null , she called for it then and subscribed the same , which shew that she could reason and deduce consequences , and that she desired earnestly to have her brother sir thomas secure of what she did ; and albeit women can ( because of there sex and imployments ) show but little sagacity ; yet in this she discovered actus sapientis , as well as sapienti conveniens . and albeit it be not proven , that the paper was not read over , yet since the contrary is not proven , it must be presumed to have been done , per argumentm à solitis . and seing sir thomas was the eldest brother , and had entertained both her and her mother , it was most reasonable that she should have left him her estate , being the stock of the family ; and she being bred up in a kindness for him by their mother , whose choice she was oblieged to approve , being then in one family with them , and her only parent . and it was most just , that her eldest brother coming in place of her father , she should have taken his advice in her marriage : which advice was not in law binding , nor would she have fallen from the right of her provision , though she had refused his advice ; so that in this , she honoured her brother , and pleased her mother , without prejudging her self . secure then ( my lords ) in this precedent , our names against infamy , and our estates against the lubricity of witnesses , and arbitrariness of judges ; and give not occasion to witnesses in one act , to perjure themselves , and ruine us and our posterity : and gratifie not the avarice of a brother , who digs up the ashes of his defunct sister , to find that sacrilegious prey which he hunts after ; but let him see by your sentence , as an earnest of gods just judgement , what he deserves who calls his brother a fool , much more , who for money takes pains to prove his sister such . this case was submitted to the lords , and the sum was divided equally by them , as arbiters . for the laird of miltoun , against the lady miltoun , november , . sixth pleading . in what case a sentence may be reduc'd , by a reprobator of the depositions of the witnesses whereupon the sentence was founded , and by what probation sentences may be reprobated . i tremble ( my lord ) to think , that the fortunes of the best of his majesties subjects , should be , by the fatal necessity of our law , laid open to the malice and avarice of the meanest , and worst witnesses : and though we know , there be thousands who would hazard their own damnation ; to satisfie either their revenge or avarice ; yet if any two of these witnesses , should conspire to satisfie their designs , either by deponing that which is absolutely false , or by concealing what is really true , to the ruine of our lives or estates , it is pretended , that our law hath invented no civil remedy . this ( my lord ) were to make the law authorize the robbing of innocents , and to suffer no man to possesse his fortune , longer then two rascalls pleases ; wherefore , it is my design , to vindicat both our law , and my own client , and to show that your lordships justice is appointed as a city of refuge , and that you can , by your reprobators , defend us against their depositions . but because this subject hath been but very unfrequently and darkly handled amongst us , albeit it have in it very much both of intricacy and concernment ; i hope your lordships will allow me so much more of time ; and seing ex facto jus oritur , i shall , to the end the point of law may be the better understood , thus open to you the matter of fact. the deceast laird of miltoun did match himself in a second marriage to this lady , to whom he did , with the greatest part of his estate , give his chief house in jointure ; and after his decease , she having married john maxwell her present husband , they did take as much pains to destroy the house , as the law oblieges them to take in preserving it : which abuses did put a necessity upon sir john whitefoord my client , to whom the estate belongs , as son and heir to the deceast miltoun , to buy the said maxwells right , which he had to her jointure jure mariti ; and after that her husband and she had received a sufficient price for it , they did enter upon an unworthy design , of retaining both the land and the price ; and in order thereto , it was plotted , that the husband maxwell should go off the the countrey , and that this lady his wife should pursue a divorce against him , as having committed adultery ; during the dependance of which process before the commissars , finding , that the reduction of this right ( which fell in consequence of the reduction of the jus mariti ) was chiefly aim'd at , miltoun offer'd to appear , and object against the witnesses , who were led to prove the husbands adultery , and which witnesses were persons known to be of very torn and unsound fame , and very lyable to all impressions ; but he was not admitted : whereupon he rais'd reduction of the commissars decreet before your lordships , upon several reasons ; two whereof were , . that the lady had brib'd the witnesses . . that she had suggested to them what they should depone , instructing them what faces and cloaths these women had ; which reasons your lordships found not competent by way of reduction , but by way of reprobator . when this reprobator was , in obedience to your ordinance rais'd , it was alledg'd , that there could be no reprobator now pursued , since it was not protested for , at the time when the witnesses were led ; but this was repell'd , both because your lordships had reserved a reprobator already , which was equivalent to a protestation ; and because the grounds of this reprobator are but lately emergent , since the receiving of the witnesses , and were not then known . and as durandus , that learn'd practitian observes , tit . de reprob . testium , num . . quod si actor paratus sit jurare , quod ad hoc , ex malitia non procedit , vel quod post publicationem , didicit id quod nunc objicit , tunc auditur sine protestatione ; and cites for this , cap. presentium extra de test . the lady finding her self in hazard to loss both her jointure and reputation by the event of this pursute , she now alledges , that these grounds of reprobator are not relevant , nor receivable ; . because when witnesses are sworn they are purg'd of partial counsel , of the receipt or expectation of good deed ; so that this being res hactenus jurata , it cannot be thereafter search'd into by him who referr'd the same to oath , & detulit juramentum ; nam dum detulit , transegit . . though the corrupter or suggester may be punish'd paena falsi , yet the sentence pronounced upon these depositions , can never be reduced . . if this were allow'd , there should be no end of pleas , sed lites essent immortales ; for the first witnesses might be reprobated by other witnesses , and these by others , and these by others ; & sic daretur progressus in infinitum . . though corruption were receivable , yet it were only probable by the oath of him who obtain'd the decreet . before i come to make particular answers to the difficulties proposed , i shall remember your lordships in the general , that probation being defined by lawyers to be , fidem facere iudici , to convince the judge of what is alledged , probation by witnesses is no infallible , but only a presumptive probation ; for it is founded upon no other warrand , then that it is presumable , that two dis-interested persons will not , by loosing of their own souls , gain any thing for a third party ; so that this kind of probation seems rather to be introduc'd by necessity , then choice . and albeit at first , when the fear of a deity did sway the world , and before men had absolutely lost their primitive innocence , and in place of it had learn'd those cheats and falshoods , which have grown up with time ; that probation seem'd to be very well founded , and two witnesses were sufficient in all cases : yet , lawyers finding infidelity daily to grow , have accordingly daily lessened their esteem of that proof ; so that the civil law did begin to require sometimes five , sometimes seven witnesses : our old predecessors establish'd assizes of fifteen sworn neighbours , who because they were both judges and witnesses , had liberty to allow as much of the deposition of witnesses , as they thought fit ; and thereafter , upon furder experience , it is statute with us , that no witnesses can be received in cases above a hundered pounds : and in holland , italie , and several other countries , the deposition of witnesses cannot prove a crime , and are made no further use of , then to subject to the torture , the person against whom they are led . lawyers have likewise , as a furder check upon these depositions , even in these cases when they are necessar , ordain'd the punishment of perjury to be severe , ob vindictam publicam , and allow'd an action of reprobator for redressing of the parties wrong'd , suitable to the two wrongs which witnesses comm●t in their false testimonies ; in the one whereof they prejudge the common-wealth by the example , and by the other , the privat party , in the deposition it self . reprobator is by lawyers defined to be , an action , whereby the judge rescinds a former sentence , because of the falsenesse of the deposition , or because of the corruption of the witnesses . and the deposition of every witness hath in it two parts , viz. initialia testimoniorum , & dicta testium : initialia testimoniorum , are , the previous circumstances premised by the practique to the depositions , whereof the chief are , whether the party be married ? of what age they are ? where they dwell ? &c. which would be very impertinent interrogators , if the law did not intend to make use of these , as marks , whereby to try the faith and trust of the deponers . there are likewise other interrogators , which , though they be used as initialia , yet certainly are essentialia , and grounds of reprobator , though the witnesses do not at all depone upon them ; such as , whether the party hath suggested to them what they should answer ? or hath corrupted them ? yet , the parties use ordinarily to depone , if they get good deed , or were instructed . the dicta testium are the body or matter of the depositions , which relate principally to the thing contraverted ; and albeit some lawyers dispute , whether the depositions of the witnesses can be reprobate quoad dicta testium ? because the witnesses are there contestes , and when two of them agree in one , to reprobat these were in effect to overturn a formall probation ; yet in initialibus they are not contestes , but every one depones singly upon what concerns himself , and is likewayes concern'd himself in what he there depones ; so that in these , both singularity and interest derogat very much from the truth of what is depon'd ; and in this case , i intend not to quarrel the dicta testium , but the initialia testimoniorum . these grounds being laid down , my answer to the first difficulty is , that the first defence , wherein it is contended , that the witnesses having been interrogat , whether they were brybed or instructed ? and having denyed the same upon oath , their depositions cannot be now reprobated , upon the heads of suggestion or corruption , is most irrelevant , for these reasons ; . the party against whom the witnesses are led , hath no time allow'd him to enquire what the witnesses are , who are to be led , and though he have relevant objections , v g. if he be inform'd , that they are instructed or corrupted , he must instantly verifie these objections , els they are not receivable ; so that to deny him the liberty of causing the judge purge the witnesses , by their oath , of any suspition , were in effect to take from the party his greatest security ; and sure , no person would desire that purgation , if he thought that he would be thereby cut off from the benefit of reprobator . . if this were allow'd , it were easie to cut off all reprobators ; for the leader of the witnesses might still cause purge them , and oftimes the judge doth it , ex proprio motu ; neither is it marked in the deposition , whether the witnesse is purg'd by the judge at the desire of the pursuer or defender , but singly , that he being interrogat , depon'd , &c. so that in this case the person , against whom the witnesses are led , should be prejudg'd without any act of his own . . though a witness have purg'd himself of partial counsel , yet if he depone falsly , he may be pursued by him , against whom he depon'd , for perjury ; ergo , it is much more competent to the person , to pursue reprobator in that case ; for reprobator being but a civil action , is far lesse dangerous . . juramentum purgationis is not juramentum decisivum , and is taken , as lawyers say , non ad finalem decisionem , sed ad majorem cautelam , and being introduc'd for the advantage of the party against whom the witnesse is led , it were most unjust that it should be detorted to his prejudice . . a witnesse who purges himself of partial counsel , is but unicus testis , and depones upon his own innocence , and consequently doth not prove ; and it were most unjust , that he should in that case be better believ'd , then two famous witnesses omni exceptione majores , and who depone upon his prevarication ; and if this priviledge were given to an oath of purgation , it would tempt men to le 〈…〉 debauch'd witnesses , and them , when they are led , to depone arbitrarily ; knowing that they can by their own oath , clear themselves of any thing that might be objected against them , and that the oath which they give , cannot only secure the party for whom they depone , but themselves against all hazard . and lastly , lawyers who have treated very largely of this subject , have made no such distinction as this , but on the contrair , by doubting only , whether dicta testium can be reprobat , because the witnesses there are contestes , as said is ; they clearly insinuat , that in all cases , where the witnesses are not contestes , their depositions may be reprobat . to the second defence , wherein it is contended , that the effect of a reprobator is not to reduce civilly the sentence , nam sententia semel lata pro veritate habetur ; but that the only effect of it would be , to punish the parties corrupters , or the witnesses corrupted , by a criminal sentence . to this it is answered , that the alledgance is contrary to the grounds of all law , and to the opinion of all lawyers . . a reprobator is in their opinion , species revisionis ; as is clear by farin . durandus , practica ferarien . and many others , and revisio , in the dialect of lawyers , is the same thing that reduction is with us . . seing witnesses wrong both the common-wealth by the example , and the privat party by the deposition , and since it is very just , that every wrong should have a suitable remedy , and seing the prejudice done by the example , is only remedied by the criminal action ; it is necessar , that the party laes'd should be assisted by a civil reduction : and it seems very unjust , that the witnesses should be punish'd criminally , and that it should be acknowledged , that the party was wronged by the flase witnesses , and that yet the losse should not be repair'd . . per l. . ff . de re judicata ( which i may call the fundamental law of reprobators ) it is clear , that both a civil and a criminal remedy are granted : the one , in these words , rem severe vindica , and the other , in these words , in integrum restitue . the law it self runs thus , hadrianus aditus per libellum à julio tarentino , & judicante eo , falsis testimoniis , conspiratione adversariorum , testibus paecunia corruptis , religionem judicis circumventam esse , in integrum causam restituendam ; in haec verba rescripsit , exemplum libelli dati mihi à julio tarentino , mitti tibi jussi , tu , si tibi probavaris , conspiratione adversariorum , & testibus paecunia corruptis , oppressum se , & rem severe vindica ; & si quae à judice , tam malo exemplo circumscripto judicata sunt , in integrum restitue . which is likewise confirm'd , per l. si quis c. de adult . et ita voluerunt alexander , consil . . & lud. bologn . consil . . and by our practique , sentences have been reduc'd , and the party repon'd , when the depositions whereupon the sentence proceeded , were convell'd by a reprobator : clear instances whereof are to be seen , the . of june , . and . of december , . and upon the . of march , . in an action of reprobator rais'd against a divorce , it was found , that the offering to corrupt one of the witnesses , was sufficient to reduce the decreet of divorce : whereas , here it is offered to be proven , that both the witnesses were corrupted , and if the deposition could not be quarreled in order to a civil effect , there needed no reprobator at all ; for the criminal action of perjury would reach the other effect , and the lords of session , before whom reprobators are intented , would not be at all judges competent . . this opinion , both of the civil and of our law , is founded upon very just principles ; for the sentence being in that case founded upon the depositions , these being removed , the other should fall in consequence , nam sublata causa , tollitur effectus ; and therefore , lawyers say , that testes reprobati pro non testibus habentur , durand . ibid. and to allow a decreet after witnesses were reprobat , were in effect , to allow a decreet without probation . . when a decreet is founded upon a writ , if that writ be found false , the sentence is reduced ; as is clear by the whole title , cod. si falsis instrumenmentis , &c. and therefore , much more should decreets be reduced , depending upon the depositions of witnesses which are reprobat , there being at least eadem paritas rationis . as to the third difficulty proposed , which is , that this would progredi in infinitum , and there should be no end of plea's , which objection is propon'd by abbas , ad cap. proposuisti de probat : it is answered , that this argument , if it prove any thing , will p●ove that no perjury should be pursu'd , nor proven ; becau●e , it is urg'd in this case , it may be urg'd there likewise , that these witnesses who prove the perjury , may be proven perjur'd by others , and these by others ; and by the same argument also , we should have no assises of error , because , if a first assise may be tri'd for error , why not that assise by another , &c. but this difficulty is easily sav'd , for reprobators should not be sustain'd in all cases , and it is only remedium extraordinarium ex nobili officio proveniens , and should only be granted , when the reason of rep●obator is found most relevant , and is offered to be proven by witnesses omni exceptione majores ; and to deny it in that case , were great injustice . as for instance , if i should offer to prove , that albeit it were proven by two fellows , that i married bertha in paris such a day , whereas i offered me to prove , that the same day i pleaded before your lordships in this house , and which were notour to all your number , were it not unjust to refuse to reduce a sentence , which were founded upon that first probation ? it is most groundlesly alledged in the last place , that though corruption of witnesses were allowed to be reprobated , by an action of reprobator intented before a decision in the principal cause ; yet no reprobator could be pursu'd , after a decreit obta●n'd in the principal cause ; for els no singular successor could be secure , since his right might still be reduced or reprobated by w●tnesses , and so sentences could be no sufficient security to such as were assigned to them ; as also , post publicata testimonia & sententiam , the losser of the cause should still intent reprobator , knowing what the witnesses depon'd ; at least the corruption of the witnesses , should not be then probable any other way , then by the oaths of the corrupter himself . to which it is answered , that reprobators are in law allow'd , aswell post sententiam , quam durante primo processu , as is clear by farinacius and others ; and there is no hazard of the publication of the testimonies , because the question is not , whether the testimonies & dicta testium can be reprobated ? for that is not here contended , but whether the initialia can be reprobated , which initialia use to be interrogat in presence of the parties , and so there is no hazard of publication there : nor did ever any lawyer alledge , that corruption was only probable by the corrupters oath , and this were most unreasonable , as will appear from these arguments , . corruption is facti and falleth under sense , and therefore is of its own nature probable by witnesses . . corruption could cast or set a witness , before he were examined , and co casu would be probable by witnesses , why not then after he has depon'd ? for by our law , as by the civil , noviter provenientia ad notitiam & emergentia , are receivable and probable , eodem modo & ordine , as they ought to have been , if they had been sooner known ; and seing all objections against witnesses , are only receivable with us , if they be presently proven , it were unjust not to admit emergent objections or proofs . . this were to make witnesses most licentious and arbitrary , for the parties may give , and the witnesses take bribes , sub spe impunitatis , if they knew that they could not be found out , but by their own confession , and in effect this were to allow perjury , and to invite men to it . it is most presumable , that these who have brib'd , will perjure , and so their oaths cannot be believ'd ; and therefore , the law must either declare , that corruption is no ground of reprobator , els that it is probable by other witnesses , and media probandi , then the oaths of the bribe●s , or bribed . it was never denied , but that a decreet obtain'd by collusion of advocats or clerks , might be reduc'd , upon full probation of the collusion by the oaths of those advocats or clerks , else any of these by compearing , or omitting a defence , might bind one hundred thousand pounds upon any of the lieges : and since it is confest , that the civil law and the doctors do in this case allow probation by witnesses , i see not why our law should not admit it . they were as zealous for the authority of sentences , as we are , and perjury is more frequent now then of old ; and though our law doth not allow probation by witnesses , in cases above one hundred pounds , yet that law was only made to regulate the original probation of debts in the first instance , but not the reprobating sentences . and it were against reason and justice , that a decreet that was obtained upon the depositions of witnesses , should not likewise be quarrelable upon the depositions of other witnesses proving corruption , these reprobating witnesses being above exception , and such persons as the judges may think fit to admit , whose choice will in this case , cut off the hazard of a processus in infinitum : seing it is not probable , that judges will allow any such persons , as may endanger the interest of him against whom they are led , this power can be no where more securely depositat , then in this illustrious senat , whose frailty is much less to be jealous'd , then is that of witnesses ; and though the constitution of a debt cannot be prov'd by witnesses , where there is no other probation ; yet it follows not , that a decreet founded upon a matter of fact , and upon the depositions of witnesses , may not be taken away or reprobated by other witnesses : for , though where debt is lawfully constitute , it cannot be taken away by witnesses , yet the case here contraverted is , whether the debt was lawfully constitute ? and the alledgeances are corruption , alibi and other matters of fact ; and though a decreet has interveen'd , yet that doth not so alter the nature of the thing , as to make it leave to be a matter of fact , and the defences emergent , since the decreet and matters of fact are still probable by witnesses . it is unjust , that what was first purchased by witnesses , should not be tryed by the depositions of witnesses , eum debet sequi incommodum , quem sequitur commodum ; & nihil est tam naturale , quam unumquodque eodem modo resolvi , quo colligatum est . and as when i pursue upon a false bond , the falshood of that bond is to be tryed by witnesses , our law doth not force the defender to refer the truth of the debt , or of the matters of fact , to the oath of the pursuer : even so , when a man is pursued upon a decreet , which is obtain ▪ d upon false grounds or corruption , why should our law force me to refer the truth to the pursuers oath ? sure , if ever reprobator was granted , it ought to be in this case ; wherein my client offers to prove , that this lady ( whose sex i am loth to wrong in her person ) did bribe these witnesses , and instructed them verbatim what they should depone ; this is offered to be proven , not only by their own confession , but by the deposition of many , who are more numerous , and more famous , though their own confession proves them to be vaccillant , and faithless rascalls , and who though they should not be believ'd in any case , yet ought to be believed as well in this retraction , as in their first deposition , and who can enervat , though they cannot astruct , their own testimonies ; and this probation ought to be received , against the deposition of two villains , who stand condemned by common fame , which is sufficient to hinder them from being witnesses omni exceptione majores , and are condemned by the k●●k-session for keeping baudy-houses , wherein they have shak'd off that fear of god , which is the ground of the faith we give to witnesses , and have learned by pimping persons , to pimp plea's . i am here in defence of a marriage , quae est causa maxime favorabilis , and the dissolution whereof requires a probation per testes omni exceptione majores ; and it is very probable , that a woman who is so impatient in those holy bands , and so malitious against her own husband , as to asperse him with every thing that may lessen his reputation with your lordships , would not spare to have dealt so with the witnesses , as might best effectuat her designs , knowing that if she prevail'd not , she behoved to return to the society of a husband , whom she had so highly disoblieged , to misse the enjoyment of that jointure , which she so ardently expected ; and to be justly branded , for having so malitiously and causelesly defam'd so sacred a relation . the lords sustain'd the reasons of reprobator to be proven by witnesses , omni exceptione majores . for the lord balmerinoch , against the lady coupar , feb. . seventh pleading . how far a disposition , made by a man , in favours of his lady , of his whole estate , is reduceable , as done in lecto aegritudinis . my clients ( my lord chancellor ) this day , are not the lord balmerinoch only , but all such as either may be heirs , or husbands ; and by how much greater there estates are , by so much the more they are concern'd in this discourse : wherein i design to assist them when they are upon death-bed , which is an occasion , at which not only their wit and memory leave them , but wherein they are oft deserted by all other friends , besides these who design to prey upon them . and i am so zealous in this service , that i cannot detain my self any longer , from opening to you the matter of fact in this cause , which may be saved by its very merits , if ever any was . the case ( my lord ) stands thus . the late lord cupar had , by his fathers kindnesse , and out of the estate of the family , a considerable fortune bestowed upon him , and what addition it has receiv'd since , is rather the product of so considerable a stock , then of that lords industry : so that he having died without heirs , this estate should have return'd to the family , not only by a legall succession , but by the rules of gratitude . yet having in a second marriage , at the age of threescore and ten , married a lady , by whom he got no great fortune , she induc'd him to dispone his whole estate , honours and title in her favours , and in favours of the children to be procreat betwixt her and any other husband ( the first bribe was ever given by a dying husband , to invite a wise to a second marriage , and though a brother may raise up seed , yet we never hear , that a woman rais'd up seed to her husband ) of which disposition , there is a reduction rais'd by the lord balmerinoch , who is nephew to the defunct , and should have been his heir , wherein he quarrels this disposition , as made upon death-bed by the lord coupar , after contracting of that sickness , whereof he died , and as done in prejudice of him as appearand heir . my lord , i know , that legis est jubere , non suadere , and that omnium quae fecerunt majores nostri , non est reddenda ratio ; yet , this law , or rather ancient custom , whereby persons upon death-bed can do nothing in prejudice of their heirs , can justifie it self equally well , by reason and authority . the reasons inductive of this excellent law , are first , that after men are sick , their judgements grow frail with their bodies ; and the soul of man wants not only then , the pure ministry of well-disposed organs , but is likewise disordered by the infection of the languishing body ; wherefore the law observes , lib. . reg. maj. cap. . vers . . quod si quis in infirmitate positus , quasi ad mortem , terram suam destribuere caeperit , quod in sanitate facere noluit , praesumitur hoc fecisse ex fervore animi potius , quam ex mentis deliberatione . which presumption seems to be very well founded ; for it is not imaginable , that any man who is reasonable , would pull down his own house ; and nature and reason being the same thing varied under different expressions , he who overturns the one , cannot be sound in the other . the second reason is , because men ordinarily upon death-bed , being surpris'd with the approach of death , and terrified with the prospect of what follows it , do so little value the affairs of this world , which they begin now to find so little able to repay their criminal pains and love , that to evite the importunity of such assistants , as are like vultures , busie about the carrion upon such occasions , they are content to ransome time and quiet , with the carelesse losse of their estate ; and who would not buy time then at a dear rate ? so that this law is the great fence of our sick-bed , as well as of our infirm judgments . the third reason is , the great respect our law bears to ancient and noble families , who are the corner-stones of the kingdom , to whose valour , our law has oft ow'd its protection , and so could not refuse it s to them . and sure , if either the importunity of mothers , for their younger children , or of wives for themselves , could be successful , the heirs would succeed to a heavy and empty title : and upon this consideration , the parliament did lately refuse to allow parents the power of providing their younger children to small portions , upon death-bed . i know also , that some adde , as an original reason for this law , the avarice of monks , and church-men , who perswaded men to wodset for themselves rooms in heaven , with great donatives to pious uses ; to restrain which excesse , venice and other kingdoms have taxt the value of what can be so bestow'd . and albeit the restriction imposed by this law , may seem destructive of dominium , which is jus disponendi , and that by the law of the . table , ut rei suae quisque legassit ita jus esto ; so that this seems to want all foundation either in common , feudal , or the laws of other nations . yet , if we examine , we will find dominium is in very many moe cases then this , and in more favourable , restricted by all laws ; and that quaerela inofficiosi testamenti , is sounded upon the same reason with this law ; and that by the laws of spain and flanders , ( so great is the favour of noble families ) noblemen cannot at any time dispone their estates , but must transmit to their posterity , what ever lands they got from their predecessors . but though no nation joyned with us in this law , this should rather induce us to maintain it , as being truly a scots law ; and we must be so charitable to our predecessors , as to believe , that they would not without very cogent motives , have restricted their own power of disponing , and have receded from the custom of all other nations ; and we should be as carefull of our fundamental lawes , as the spainiards are of their privat estates . and of all persons , against whose importunity the law should guard us , sure our wives are the chief , for they have the nearest , and frequentest accesses , the most prevailing charms and arguments , and of all creatures women are most importunat , and are most dangerous when disoblieged ; wherefore the law hath wisely forbidden all donations betwixt man and wife , fearing in this , mutual love and hatred , though in modesty , it hath only exprest the first . and sure if this donation should subsist , every woman would think her self affronted , as well as impoverished , if she could not elicit a disposition from her husband , of some part of his estate . and to what condition should a poor man be reduc'd , and with what inconveniences urg'd , when he behoved either to disobliege his wife , or ruine his heir , and to load his fame or his estate . so that the lord coupar hath in this , prejudg'd husbands and heirs , and hath violated & jus parentale , & maritale . it is alledged for the lady , that the reason is not relevantly libelled , seing we do not condescend upon a form'd disease , under which the lord coupar labou●ed the time of the disposition , and of which disease he thereafter died : nor is tenderness and infi●mity sufficient of it self , to m●intain this reason of reduction , especially in old men , whose age is a continual infirmity , and yet is not by lawyers called a sickness , sickness being a preternatural , whereas age is a natural infirmity . and this law being mainly founded upon the presumption , that these who are upon death-bed , have their judgments and memories so clouded , and disordered by the sickness which presseth them , that they are either altogether disabled from doing affairs , or at least from doing them judiciously , and according to the rules of reason : therefore such a disease should be condescended on , as influences the judgment , and incapacitats the disponer to understand his own affairs . whereas it were absurd that old men who keep the house , should be generally interdicted , meerly because they come not abroad , and are somewhat tender , albeit they be otherwise very ripe and mature in their judgment , as ordinarly old men are , nature having bestowed prudence upon them , in exchange of that bodily vigour , which remains with those who are young : and it were unreasonable , that if any person were a little tender , and had not occasion thereafter to come abroad , that a disposition made by him should ex eo capite be reduced , albeit it cannot be qualified that he died of that disease . wherefore our law having restricted the power of heretors so far , that as they cannot dispone their estate upon death bed , in prejudice of their heirs , it hath most justly appointed , that the disease wherewith they are insected should be condescended upon ; to the end it may be known , whether it could influence the judgment or not , or whether or not the disponer died of that disease : and in all the decisions which concern cases of this natu●e , it is remarkable , that the disease is still condescended upon . likeas , by the . cap. lib. . reg. maj. the reason whereupon this law is founded , is said to be , quia tunc posset in modico contingenti ejus haereditatem destribuere , si hoc permitteretur , ei qui fervore passionis instant is , & memoriam , & rationem amittit . to which it is reply'd , that it is libel'd in the reason of reduction , that the lord coupa● disponer had contracted a sickness , before he had granted the disposition , which is all is necessar ; and it were most absurd , to th●nk that the pursuer should be necessitat to condescend upon a particular disease , and design it by a name : for this were to make two physitians absolutely necessar in all diseases , since none are presumed to know the names and natures of diseases but they ; and there is sometimes such a complication of diseases , and new diseases do so often creep in amongst mankind , that hardly even a physitian can design them exactly by a particular name . and it is very observable , that when the name of a disease is condescended upon in any decisions , it is not by the pursuer , but by the defender , who condescends upon the same , for clearing either that the disease was not mortal , or that it did not effect the brains . but yet when we consider these decisions , we will find , that if the person had been proven to have been once sick , the disposition is still reduced , though the disease be not proven to be such as could affect the brain . thus a disposition was reduced , albeit it was offered to be proven , that the disponer was mentis compos , february , . robertson against fleeming ; and that he did his affairs , and sat at table as at other times : nor is it requisit the disease be morbus sonticus , pen. july , . and . july , . the alledgeance of judicij minime vaccillant is was also repell'd , and a provision was not sustain'd made to a child , though the father had only a palsie in his side , and liv'd . months , july , . and this is most reasonable , because the soundness of the judgment being that which is not subjected to the senses of witnesses , they cannot properly cognosce thereupon , and they would in that case be rather judges , then witnesses . for if it were otherwise , servants who are the only ord●nar witnesses that are present , would have it left arbitrary to them , to make the disposition valid or not , as they thought fit , and they m●ght depone very boldly , because without hazard , since in such guessings as these , they might assume to themselves a very great liberty ; and thus though the law thought it fit , not to put it in the power of the heretor , to prejudge his heir upon death-bed , by dispositions , your lordships should by your decision , put it in the power of servants to prejudge them , by their depositions . and if it were necessar to prove , that their judgment was disordered by the sickness , then this law had been absolutely unnecessar , for whatever disposition is made by any person , whatever condition he be in as to health , yet if he be not sanae mentis , it is still reduceable ; and as unsoundness of judgement without sicknesse in that case , were sufficient , so the law hath made sicknesse without unsoundness of judgment , to be sufficient in this . for , to the end there might be nothing arbitrary in this case , where the greatest of the subjects ( such as are the nobility ) are concerned in their greatest interest , which is the disposition of their old heretage ; the law hath appointed , that if the person be once sick who dispon'd , the proving that sicknesse without any thing els , shall be sufficient for reducing that deed , except it can be proven , that the person who granted the disposition went thereafter to kirk and mercat ; to which none go , till they be intirely recovered , and fit for businesse , these being places , wherein sound men are still presumed to be serious , because these places are not fit for recreation , and so not fit for such as are sick , and which are acts that falls under sense ; and so may be deponed upon by witnesses , and are acts exposed to the view of very many : and the heir cannot be thereby prejudged , by either the want of witnesses , or by being tyed to the deposition of domestick , packed witnesses ; for such only are usually admitted to v●sit the defunct ( and so are only the persons who can be witnesses ) by these , who had him so much in their power , as to elicite such dispositions from him . the defender ( my lord ) finding her self straitned by this debate , joyns , to her former defence , another , which is , that going to kirk and mercat are not absolutely necess●r qualifications of health ; but it is sufficient if the defunct might have gone to either of these , or did equivalent de ●s , whereby it might have been known that he had recovered his health , for that is the scope and design why the others are condescended upon ; and it were unreasonable , that the going down a stair within burgh , and the buying of an apple at a crame , should be a greater sign of health , then the riding of a journey : so that going to kirk and mercat may be supplyed by equivalent acts ; and the lord coupar did equivalent acts , for evidencing that he was in health , at , and after the granting of the disposition , in so far as he rose from , and did go to his bed at his ordinar times , did come to table , entertain strangers , wait upon them without doors to their horses , sell his corns , take in his accounts , and writ long letters all with his own hand ; in which letters , he shew a former design he had to make that disposition . likeas , former letters can be produced long prior to his sicknesse , wherein he shew'd his design ; whereas your lordships have by former decisions found , that equipolent acts were sufficient , as in the case betwixt sym and grahame , in anno , . wherein it was found , that the writing of the disposition of a sheet and a half of paper , all with the disponers own hand , was sufficient to sustain the same , and to defend against the reason of reduction upon death-bed : and in february , . in the action pargillis against pargillis , it was found , that the riding on horse-back , though the disponer was proven to be sick , and that he was supported upon his horse , were sufficient qualifications of health ; and if the going to kirk and mercat were still requisit , the lieges could never be in tuto when a disposition is made to them , seing very many men , who are in perfect health , do oft die suddenly , before they have occasion to go to kirk and mercat , and when the persons to whom the dispositions are made , cannot suspect there is any need of their going there . but though kirk and mercat were requisit , yet it can be proven that the lord coupar went to both ; and albeit he was supported , yet that was only in a piece of the way , which was rough , and at which he used to be supported at other times , when he was in health , and was therein supported now , not because of the sicknesse , but because of the way . to which it is replyed , . that the law and continual decisions having fixt upon kirk and mercat , as indicia sanitatis , no other acts can be sustain'd as equivalent ; for , where the law requires solemnities , such as these are , solennia non possunt per aequipolentia adimplere ; thus earth and stone being required as symbolls in sasines , three oyesses at mercat-croces , &c. acts equipolent to these would not be sustain'd ; and the law having appointed that a child should be heard cry , to the end marriage may not be dissolved , though the woman die within year and day , the law sustains not that the child was a lively child , or might have cryed ; for , saith that law , it was fit that some certain sign should be fix'd upon , to prevent the arbitrarinesse of witnesses : and seeing it would not be sustain'd to elide the reply of kirk and mercat , and the alledgeance of health founded thereupon , that the defunct was not in health , though he went not to kirk and mercat ; so the reason of reduction founded upon sicknesse , because he went to kirk and mercat , ought not to be elided , by alledging that the defender was in health , though he went not to kirk or mercat ; and if equivalent acts were sustain'd , this law might be easily eluded , and the effect of it would become altogether arbitrary . . the acts condescended on , are not equivalent signes of health , to the going to kirk and mercat ; . because these acts of going to kirk and mercat , are fixt upon by a long tract of decisions , and so are solennia jure recepta ; but these other acts are not such as have been found equivalent by any former decision : but on the contrar , acts of more adjusted equipolency then these , have been repelled , when propon'd to take off the reason of death-bed ; and thus in the foresaid decision , february , . . it was alledg'd that the disponer was able to go to kirk and mercat , and that he went about his affaires within doors , and came to his own table , as formerly . and though it was alledg'd upon the penult . june , . that the granter of that disposition then quarrel'd , and which was made upon most deliberat grounds , was able to mannage his own affaires as formerly , having only a palsie in one arm , which did not affect the judgement . and the . july , . it was alledg'd , that the disponer who had granted a bond of provision to his own son , had no disease which could be impedimentum rebus agendis , and that he lived . months thereafter , and went about his affairs , yet all these condescensions upon health were repelled , though the time of surviving were much longer there then here , the case of the granting of the disposition much more favourable ( and indeed , none can be lesse then this defenders case ) and the persons who did dispone , of a much greater consistency both of health and spirit , then the lord couper , who was known to have needed little sicknesse , and much lesse importunity and design , was used in this case , to make him do acts both irregular , and unwarrantable . as to the decision , sym against grahame , it is answered , that it was proven there , that the defunct went upon his own feet to the apothecaries shop , and to his physitians house , which implyes necessarily in edinburgh , a going thorow the mercat , whereby the law is satisfied , and a publick act was done , which might be proven by unsuspect witnesses . and as to pargillis case , the disposition there , was made in favours of a grand-child , with whose mother the grand-father had promis'd the estate at the contracting of the marriage , he having been party-contracter for her , though that promise was not insert in the contract ; likeas , the disponer went to the ground of the lands unsupported , and gave the sasine himself : and albeit he rode to the mercat , because he was goutish , which is the only disease that was proven , and which is in the opinion of the physitians , rather a pain , then a disease ; yet he went to the mercat unsupported from his lodging . . all these acts condescended on were done at several times , and might have been very easily done singly , by a person who was sick , and none of them are such acts as require health both of body and mind , as doth the going to kirk or mercat , nor did they require the coming abroad to open air , which is the severe tryal of health ; and all these acts were transacted intra privatos parietes , and so subject to suggestion , and collusion , the witnesses being such as were under the power of the defender , who did elicit the disposition , and the appearand heir being absent , and very remote , as is ordinar in such cases : whereas the going to kirk and mercat , are acts wherein the appearand heir may hear a conjunct probation , and wherein though the witnesses to be led for the defender , design to prevaricat , yet the fear of being control'd by a multitude , would hinder them to adventure upon the deponing an untruth . . all the acts condescended on seem to be done ex affectata diligentia , & affectata diligentia pro negligentia habetur , nor can any acts be esteemed equivalent , except they were such , as clearly evidence , that if he had design'd to have gone to kirk and mercat , he could have done the same ; whereas in this case , when the defunct design'd to go to kirk or mercat unsupported , as law requires , he could not perform the same , but behoved to be supported as said is , by which it clearly appeares , he did not any acts that were equ●polent . to his actual going abroad to the kirk or mercat , i make no answer , since our law requires his going unsupported , which cannot be alledged in this case ; for as going to kirk and mercat , is an exception which takes off the reason of death-bed , so the being supported elides the exception of going to kirk and mercat . and so unfavourable have their reductions alwayes been in our law , that the pursuer offering to prove supported , is preferred to the defender , who offers to prove unsupportable , as was found , . july , . albeit regulariter the defender is preferred to prove his own defence ; not needs the pursuer debate from what cause the supportation proceeded , for it cannot be known to witnesses upon what account he was supported , and that might have proceeded from infirmity , as well as from the ruggednesse of the way : and so this law would in its execution and application , return still to be arbitrary , if witnesses or judges might guess at the occasion of the supportation . but without debate , the pursuer contends that this priviledge of eliding a reduction ex capite lecti , being only competent to the going to kirk and mercat unsupported ; he who is supported , gains not the priviledge , because he fulfills not all the qualities , and it is very well known , that the way is ordinary calsay , and that the house and mercat are not distant three pair , and the lord coupar used ordinarily to walk there unsupported ; so that when he took support , especially at a time when he designed so much to go unsupported , it shewes convincingly , that his infirmity , though not himself , remained still disobedient to all their designes , and though they could force him to dispone , yet they could not force him to be sound ; and your lordships may easily judge , that these who were at so much pains to make this disposition subsist , were not wanting to use all indeavours for carrying him over this last difficulty , so that this support proceeded not from chance , but from necessity . seing then your lordships have been so rigid observers of the law , in prejudice of poor children , and poor relicts , who were unprovided , i hope you will not prostitute it in favours of a stranger who had formerly gotten all the defuncts estate in jointure : reward not thus the importunity of wives , and bryb not avaritious persons to trouble us at a time , when we shall think all time too short , to be imployed in the service of him , whom we have so much , and so often offended ; and take not from us in one decision , the protection of the law , when our judgments are frail , the quiet of our souls when we are sick , and the love of our successors when we are dead . the lords reduc'd the disposition . for the countesse of forth , &c. against e. c. eighth pleading . how far restitutions by way of justice , are prejudged by acts of indempnity . i might stand in the next degree of guilt , to those who forfeited the earl of bramford , if i thought that his merit , or your lordships loyalty needed , that i should urge much the favour of his case : he was a person who carried the honour of our nation , as far and as high as could be expected , from the happiest subject in much better times : for after that his merit , arm'd meerly by his own valour , had rais'd him to be a general in sweden , he was chosen general in england , in a war , wherein all his nation were suspected , and did there , actions worthy of our praise , and their wonder . but whilst he had refus'd to draw a sword against his country-men , even whilst they were rebels , they forfeited him , for fighting in a kingdom , over which they had no jurisdiction , and forfeited him by his majesties lawes , and at the pursute of his majesties advocat , when he was hazarding his life for his majesty , by his own command , and in his own presence ; and the very day after he had gain'd that battel for him , which if prosecuted according to that brave generals advice , might have secured to him , that just power , which those rebels were scruing out of his hands . the earl of forth being with his majesty , restor'd to his own , his lady and daughter pursue such as intrometted with his estate , and insist now against e. c. who for being general to the then estates , got pounds out of the estate of the earl of forth , which was a part of that sum , which was due to his lordship upon an heritable security , by the earl of errol and his cautioners . in which debate , if i use terms which may seem indiscreet and zealous , i must be paroned , since i shall use none but what are forc'd upon me by that act of parliament by which i plead , since e. c. is a person to whom i wish much success in every thing , save this debat , and to whom my respects are above jealousie . it is alledged for e. c. that though such as are restored against forfeitures , by way of justice , may by vertue of their restitution , repeat all that is extant of their estate , yet they cannot repeat what money belonged to them ; for money being res fungibilis , and naturally subject to consumption , it passeth from hand to hand , without bearing any impressa , whereby such as intromet with it , may know how it came , and whose it was : nor doth the nullity of a title in the first obtainer , infer repetition of money from such as derive a right from them , as may be clear'd in many instances , for if money had been payed to one , who obtain'd an unjust sentence from the late usurpers , yet they would not be liable in repetition , after that sentence were revived and declared null . if one should serve himself heir unjustly , and as heir assign a sum to one of his debitors , though his service were thereafter reduc'd , as unjust , yet could not his assignay be oblieged to restore what he recovered by vertue of that assignation . if the exchequer should presently gift an escheat , though the escheat , and horning whereupon it proceeded , were thereafter reduc'd , yet a sum payed by vertue of that gift , when standing , could not be repeated , and if this principle were not sustain'd , all commerce would be destroyed ; and though e. c. his title be now ●educ'd , yet it was valid the time of his intromission , which is sufficient to astruct his bona fides : and lawye●s , even in introm●ssions with money , which was at fi●st ●obbed , consider only vim illam quae intervenit tempore numerationis ; whereas here , though the est●tes did most unwarrantably and rapinously forfeit the earl of forth , yet his money being brough● in to the publick t●easure , and confounded with their ca●h , it ceas'd to be his , and became theirs ; and therefo●e , e. c. being creditor to them , as he might have taken any precept justly from them , payable out of their treasure , so might he have taken p●ecepts upon his estate , which ceas'd to be his : nor can the earl of forth be said to be a loser by e. c. seing the estates for the time would have brought it in , and converted it to their own use , in which case , forth would not have go● repetition against the persons to whom it were payed . to these grounds , it is ( my lords ) replyed ●or the earl of forth , that there is a difference stated in law , betw●xt restitutions by way o● grace , and restitutions by way o● ju●t●ce ; in restitutions by way of grace , the guilt remains though the punishment be remitted , and the person forfeited is restored , not to his innocence , but to his estate , and therefore he recovers only what ●s extant of his estate . but in rest●tutions by way of justice , the sentence forfeiting is declar'd never to have been a sentence , and therefore , it can never be susta●n'd as a warrand to an● 〈◊〉 , sed comparatur juri postliminii & fingitur nunquam 〈◊〉 〈◊〉 , & tantum restituit 〈◊〉 quan●um abstuli● injus●●ia . and 〈◊〉 , not only what is extant , but all that belonge● 〈◊〉 〈◊〉 there is resto●ed . but sentences fo●●e●t●ng may be 〈◊〉 〈◊〉 , as b 〈…〉 s obse●ves , 〈◊〉 , d 〈…〉 med . 〈◊〉 ▪ into 〈◊〉 , as though they were ●njust , y●t every p 〈…〉 t person was not ob●●ege● to know the injustice o● the ●or●eiture : as if a man had been forfeited in a justice-court for murder under trust , or a landed-man for theft ; against which sentences , though the person forfeited were restored , yet it might seem hard , that such as intrometted by vertue of warrands or assignations from the estate , should be forc'd to restore all they received ; but others may be forfeited , as the earl of forth was , by vertue of sentences , which were no sooner pronounced , then they became treason , by an execrable inversion , not in the pannel , but in the pronouncers , and were not only treason of their own nature , but behoved to be acknowledged treasonable by all such as heard of them , and such sure was that sentence pronounc'd against the earl of forth ; which was against the fundamental laws of this and all nations , and which is declared by the act of parliament restoring him , to have been , at the time it was pronounc'd , an act of rebellion , and an invasion upon his majesties royal prerogative . this being the state of this restitution , it is , my lords , answer'd to the defence , that it is defective in the aplication of all its parts ; for , that this money was not res fungibilis , appears , because the law distinguishes all estates in mobilia ( quae sunt fungibilia ) immobilia , & nomina debitorum . nomina debitorum are bonds due to the creditor , which are of a middle nature , betwixt movables and immovables , and these fall certainly under restitution by way of justice , even according to the defenders own principles , for they bear the n●me and impressa of him to whom they belong , and so the intrometter is warned to bewar of them : and that this money crav'd here to be repeated was such , is very clear , for it was due upon ●n heretable bond to the earl of forth , by the earl of errol and h●s cautioners , and came never in , nor was confounded with the publick treasure ; for e. c. got a precept upon ●t , before the publick obtain'd a sentence for it , and got a w 〈…〉 nd for that specifick sum owing by that bond to the earl of forth , and got payment of it from the earl of forths de 〈…〉 s , 〈◊〉 debitors to him : so far did just heaven allow this hast to be its own punishment . as to the second member of the defence , which is founded upon his bona fides , to intromet with the sum for payment of a debt due to him , ( he having been general at that time ) from an authority then in being ; it is reply'd , that bona fides in the intrometter , doth not extinguish and take away the right of the true proprietar , nam quod meum est , sine facto meo à me auferri nequit . and lawyers determine , that to denude a man of his property , there must be some fact of his , either se obligando , or delinquendo , neither of which can be alledged in this case ; and if the earl of forth was never denuded , then calendar could have no right ; for , duo non possunt esse domini in solidum unius & ejusdem rei , which maxim holds still in specibus & nominibus debitorum , for though sometimes it may fail in numerat money , the dominion whereof is , for the good of commerce , sometimes transmitted by simple numeration ; yet it never fails in specibus , seu corporibus : and that money due by bond , is not of the nature of pecunia numerata , is clear from l. si certus ff . de legat . . and if a robber take away may cloak , and give it to a stranger , yet i would per rei vindicationem get it back , notwithstanding of the defenders bona fides ; but here there was no bona fides , seing e. c. was oblieg'd to know , that the earl of forth was injustly forfeited , and that the act of parliament , against which there is no disputing , has declar'd it to have been treason ; and if e. c. were pursued for opposing his majesty at that time , or for concurring to the forfeiting of the earl of forth , he could not defend himself otherwayes , then by the act of indempnity : ergo , in the case of restitution of forths estate , which is excepted from the act of indempnity , that warrand proceeding upon forfeiture , cannot defend him ; for how is it imaginable , that his bona fides , which could not defend him against the losse of his own estate , shall be able to defend him against the restoring of forths , to which he had aliunde no right ? there is no bona fides , but where it is founded upon a title , et ubi non subest titulus , ibi non est admittenda bona fides ; but so it is , that e. c. his title , viz. the forfeiture of the earl of forth , is declar'd by parliament , never to have been a title : but e. c. who was a member of that parliament which forfeited the earl of forth , and general of that army which defended them , is in the same case , as if two robbers had taken a bond from a free liege , and had given it to one of their own society , who was at least a spectator ; in which it is most certain , that the free liege so robbed , would recover payment from him who intrometted . by this unwarrantable intromission with the earl of forths money , e. c. became his debitor , and the supervenient act of indempnity could no more defend e. c. against this , then it could against his other debts . indempnities are design'd to secure against the princes pursutes , who gave them , but not to ruine innocents , else were these indempnities , acts of injustice , not of clemency . si criminaliter caeptum judicium interventu indulgentiae scriptum est , habes tamen ressamen indagationem , & potes de fide scripturae civiliter quaeri , l. . c. ad l. cornel. de fals . amnesties are but general remissions , and so cannot be stronger as to all crimes , then a particular remission is as to one : but so it is , that a particular remission can only dispense with the princes interest ; nor doth it cut off the pursutes of privat persons , as the former law observes very well ; and the emperor in another law tells us , nec in cujusquam injuriam beneficia tribuere moris nostri est , l. . c. de emancip . libero . from these grounds , your lordships have an easie and just prospect of the answers which may be made to the instances adduced ; for we are not in the case of such as obtain gifts from the present exchequer , nor rights from heirs once lawfully serv'd : for the jurisdiction whereby these rights are establish'd , are not funditus taken away , nor were the singular successors oblieged to know the sentences , whereupon their rights were founded , to have been null , as e. c. was in this case ; nor can this prejudge commerce , except among such as are oblieged to know the grounds of their commerce to have been unwarrantable , and rapines and violence sunt extra commercium , which is so far from being an absurdity , that it is an advantage ; for this may help to stop all commerce amongst rebels and usurpers , and to loose these cords by which they are tyed : and from this , i beg leave to represent to your lordships , that by this decision you will do more to hinder rebellion , and to encourage loyalty , then armies can do ; for since no man will hazard hanging and damnation by rebellion , without he be baited to it , by the certain expectation of a prey ; so , if rebels find , that they can never be secure of any prey so obtain'd , they will certainly neither be so eager to have such as are loyal forfeited , nor so desirous to settle upon themselves , estates so rob'd . as to that principle , that whatever defect was in the title here , yet there was none in the numeration of the money , and defects in the numeration are only objected against singular successors ; it is answered , that vis est vitium reale , & afficit rem ipsam licet transierit per mille manus . and this original sin insects the whole issue , for the states could not transmit a better right then they had themselves , nemo potest tribueri alteri plus juris , quam ipse in se habet : and plin. lib. . epist. . informs us , that caecilius classicus having robb'd the province which he commanded , and having payed his creditors with the sums extorted , pecuniae quas creditoribus solverat , sunt revecatae . but though this might be alledged where there remains still some colourable title in the author , and where the singular successour was not oblieged to know the defect , yet in this case it can never be pretended by e. c. whose right is funditus taken away , and who was at the time the mony was assign'd , or was nume● at to him , oblieged to know that defect in his right , which is now the ground of this restitution . i shall not trouble your lordships , with answering those objections , founded upon the earl of forths ratifying and homologating his own forfeiture , by giving in a petition , . when he was content to accept back his heretage , without these sums ; for it is known , that petition was not sign'd by himself , nor did he ever appear before those usurpers ; and what was done by his friends , cannot bind him , especially whilst that usurpation continu'd , under which he first suffered ; nor to the act , . wherein some intrometters are declared free , for that act was only conditional , and upon provision that his majesty should pay the earl of forths successors pounds sterling , out of the fines , which condition was never purified , and i wish it had , for that was much better then what is here expected : these grounds are such , upon which none but such as are ready to drown would fasten : but , my lords , if i needed to prepossesse you with what the parliament designed in this restitution , i might easily clear , that they design'd these intrometters should be lyable ; for when duke hamiltoun and the earl of errol were absolv'd as the immediat debitors , it is very well known , that they were absolv'd upon expresse provision , that they should deliver to the earl of forths successors , such papers as might prove the int●omission of these defenders , which had been unnecessar if the intrometters had not been liable , and the reason why these debitors were absolved had been groundlesse , if intrometters had not been liable . but to what purpose should the parliament have restor'd forth , if they had not design'd the intrometters should be liable ? for the parliament knew , that there was nothing else , which could have been reach'd by this restitution , except these moneys now pursued for , and so their justice had proved an a●y and empty fanfara , bringing nothing with it but the occasion of certain spending , upon an uncertain expectation : to avoid all which debate , the parliament have expresly ordain'd the first debitors to produce these papers , for proving against these intrometters , who are hereby declared lyable ; which words are so expresse , that they preclude all cavil , as well as difficulty . this being the nature of our pursute , and these the answers to any pretended difficulties , it is humbly recommended to your lordships , to give a testimony of your hatred against those violent courses formerly practised , and to teach posterity what such invasions may expect . i know well , that no man has deserv'd better of his majesty , then e. c. hath of late ; and i hope , that when you have decided against him , he will heartily acquiesce to your sentence , as a furder proof of his sincere loyalty , nec tollitur peccatum , nisi restituatur oblatum . i confesse , that he did not yield to those impressions , till they had overcome the whole nation , and that nothing but the perswasion of his being then employed in the service of his conscience and countrey , could have with-drawn him from the service of his prince : but this can plead no further , then that his prince should pardon these escapes , not that he should reward them , especially to the prejudice of his faithful friends . the lords sustain'd the pursute , and repell'd the defences . a debate in favours of the earl of forth , against e. c. ninth pleading . how far a person unjustly forfeited and restored , may repeat annual-rents from the intrometters . if i were not ( my lord chancellor ) very confident of the justice of my own cause , and of your lordships learning , as well as integrity ; i should be somewhat jealous , that the learn'd discourse you have heard , in favours of my l. c. might leave some impression . but , my lord , i think it impossible that any , beside those unjust judges who forfeited the earl of forth of his principal sum , would again forfeit him of his annual-rents ; nor do i imagine , that even those would have done it , if they had not been distemper'd by their own feaverish zeal , and that national fury : so that if your lordships should folow their example , you should share their guilt , but want their excuse . it is ( my lord ) now alledg'd , that e. c. is not liable in payment of annual-rent to the earl of forths successours , because money is of its own nature res sterilis , and in law bears not naturally annual-rent ; and therefore an intromettor , though predo , though male fidei possessor , is not liable for annual-rent , for no man is oblieged to improve another mans money : and by the civil law , ( which was more ready to give annual-rents then ours ) in corporibus ex quibus fructus naturaliter proveniebant malae fidei possessor , was liable in fructus productos , but in corporibus quae non producebant fructus de sua natura , nec predo , nec latro tenebatur in fructus ; and though a person who impropriated publick money was punishable , ratione repetundarum vel ex residuis , and so was there most unfavorable , of all intrometters , yet he was not liable in usuras ; nor by our law are annual-rents ever due , sed ex lege , vel ex pacto , neither of which can be alledged in our case ; and the act of indempnity hath made intrometters with publick money liable in repetition , and though their intromission be most unwarrantable , yet are they not made liable by that act in annual-rents . likeas , though these moneys due to the earl of forth , did at first bear annual-rent , yet they being once uplifted , became a sum lying in cash , which e. c. was not oblieg'd to re-imploy upon annual-rents , and by the act , . whereby his majesty was to repay the earl of forth , he was only to be repayed of his principal sum , but not of his annual-rent . to which , ( my lord ) it is answered for the earl of forth , that since your lordships have found e. c. his title to have been unjust , we must debate now against him tanquam , at least , male fidei possessorem ; for the act of parliament has declared this forfeiture an invasion upon his majesties prerogative , and you have by your sentence , found it not to be shelter'd under the act of indempnity . let us therefore , in the first place , consider that the law never design'd to favour oppressors , nor suffer the innocent to be prejudged ; it never design'd that men should enrich themselves by their guilt , and be rewarded for their violence . and since the fear of punishment is scarcely able to restrain that wickedness , to which we are naturally prone ; it were absurd to highten our vitiousnesse by rewards ; whereas , if malae fidei possessores should not be lyable to repay annual-rents , they should be enrich'd by their oppression , and should be baired to commit violence , and to maintain themselves in it ; for they should be sure lucrari ( at least ) usuras rei , per vim & injuste ademptae . and therefore , my lords , though the law makes a distinction etiam in malae fidei possessore , inter corpora , ex quibus fructus naturaliter proveniunt , & corpora sterilia ? yet , they do not this upon design to favour vitious or violent intrometters , but in order to the several wayes of taxing the restoration of the person injured ; for , where the bodies unjustly intrometed with bear fruits , they ordain the fruits to be restor'd , but where they bear not naturally fruits , the law doth not ordain the intrometters to be free , but to be lyable in damnum & interesse , & in omnem causam ; this the law defines to be all the advantage could have arisen out of the thing intrometted with : this being an uncontraverted principle , i humbly conceive , e. c. should be lyable to these annual-rents acclaimed , and that upon these three considerations . first , this sum intrometted with by e. c. was a sum bearing annual-rent ; and therefore , forth being restored by way of justice , he ought to be put in the same case he was in before the forfeiture : and if the money were now lying unuplifted , forth would be preferred to e. c. quoad these annual-rents , which clears , that they were never due to e. c. and if they were not his , he ought to restore them . the forfeiture is declared to be no warrant , and so , though e. c. were in the same condition as a stranger is , who intrometts with another strangers money without a warrant , yet sure he would be lyable in annual-rents , if he intrometted with a sum bearing annual-rent ; much more then ought he to be lyable , who hath intrometted with a sum , which was unjustly and predoinously intrometted with . for here , e. c. is in the same case , as if a man had broke my house , and had taken away my bonds with blank assignations lying beside me , and had uplifted for many years , the annual-rents of these sums ; or if a man had , upon a false token , taken up my moneys which bear annual-rent ; in which cases it is most undenyable , that the vitious intrometter , would be lyable in re-payment of the annual-rents ; and to invert one of the defenders own instances , it is not imaginable , if any should uplift a sum belonging to a person lately forfeited , and which did bear annual-rent , that the exchequer would not exact annual-rent from the intrometter . i might hear urge likewayes , that a minors money intrometted with , bears annual-rent by the civil law and ours ; and it is most clear , that pinguius succuritur restituto , per modum justitiae quam minori , as bossius well observes , tit . de remed , just . num . . & . jason . ad l. gallus ff . de liber . & postlim . for , as they are equal , in that neither did consent to the intromission , so he who is forfeited for his countrey , deserveth more favour then a minor doth ; and many things are in law allowed ob bonum rei-publicae , but we are not here in the case of corpus sterile , for money bearing annual-rent is not corpus ex sua natura sterile , but habet fructus ex se facillimè provenientis ; usura est 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seu partus pecuniae , and should rather be restor'd then fructus prediales ought to be , for in these the intrometter bestow'd his industry , but here annual-rent doth grow very easily : and that annual-rent is due , even where it was at first sterilis , is clear from § . quid si l. item veniunt ff . de haered . petit . quid si post venditam haereditatem hic ipse res venient , fructusque earum , sed si forte tales fuerunt , quae vel steriles erant , vel tempore periturae & hae distractae sunt vero pretio , tunc potest petitor eligere ut sibi pretia & usura praestentur . upon which law , the doctors observe , that malae fidei possessor tenetur rem ipsam restituere , si extet , vel pretium & usuras , si non extet : but much more , where money bearing annual-rent is ●ntrometted with , for there the proper damnum & interesse is annual-rent , and our law calls annual-rent the interest of money : so that though the money had been sterile , yet the vitious intiometter would have been lyable in damnum & interesse , and the damnage and interest of money is annual-rent : nor is this money of the nature of that money , which the law makes sterilis , for here was an heretable bond bearing annual-rent , nomen debitoris , and which in our law is not accounted inter mobilia , and such a bond pro feudo habetur ; nor can it be ever said , that this heretable security was lawfully loosed , no requisition having ever been made . another ground i go upon is , that malae fidei possessor ; tenetur non solum in fructus perceptos , sed in percipiendos , l. sed & partus ff . quod metus causa ; where the law determines , that when any thing is vi , vel metu taken , partus ancillarum & fetus pecorum , & fructus restitui , & omnem causam opportet ; nec solum eos qui percepti sunt , verum si plus ego percipere potui & per metum impeditus sum hoc quoque praestabit . and when lawyers consider fructus illos percipiendos qui sunt restituendi à malae fidei possessore , which they call fructus civiles , they define them with bartolus , ad l. ex diverso ff . de rei vindicat . to be vel quos petitor percepisset , si ei possidere licuisset , vel quos possessor quo alius diligentior non est , percipere potuisset . according to which characters ( worthy of their wonderful author ) these annual-rents are to be restored upon both accounts ; for they might have been uplifted by the earl of forth , if this forfeiture and intromission had not interveen'd , and by e. c. had he continued these sums for after-years , as in the beginning , in the cautioners hands , or if he had re-imployed them in other hands upon the first termes ; and if he , studying either his own gain or convenience , has inverted the primitive use of forths money , should either his gain or humour prejudge forth ? incuria sua in rebus alienis nocere non debet . and copus parisiensis doth excellently observe , that sicut ille qui culpa desit possidere pro possessore habetur , ita & ille qui fructus percipere potuit pro percipiente habetur , si culpa ua desiit non possidere , what can be more solid , or plain , though e. c. had not employed them upon land , whereof he has reaped the f●uits constantly , since they were so imployed ? if a man be violently ejected out of a miln which was grinding , a coal-heugh , or salt pan which was going , he would certainly be restored , not only to his coal-heughs or salt-pan , but to all that they might have yielded ; much more then ought he to be restored to his annual-rent , which was a more sure product then these . and whereas it is pretended , that an intrometter , though wanting a just title , is not oblieged to improve the money so intrometted with by him , and so cannot be lyable to pay annual-rents for it ; it is to this answered , that though he be not oblieged to improve them , yet he should be lyable , if he altered the natural improvement of them : this would not be allowable in bonae fidei possessore , much lesse ought it to be indulged in malae fidei possessore ; and though the intrometter in crimine repetundarum , be not lyable in usuras , yet he is lyable in quadruplum , which much exceeds these , and would also be lyable in usuras , if he intrometted with publick money bearing annual-rent , which is our case . and whereas it is pretended , that annual-rent is in our law only due , ex lege , aut ex pacto ; it is answered , that annual-rent is here due , & ex lege , & ex pacto ; ex lege , because in restitutions ex justitia , the party ought to be restored in integrum , cum omni causa , in which annual-rent is included : & ex pacto , because c. hath given his bond to secure the debitors , as to all damnage or interest they could sustain . the third principle i fix upon is , that e. c. gave his bond to relieve the earl of kinnoul and errols cautioners , of all damnage and interest they could sustain by paying these moneys to him ; and therefore , seing they are now absolved by the parliament , upon express provision , that they should make out the intromission of such to whom they payed the money ; it follows by an infallible inference , that they are lyable to the earl of forth for what damnage he sustain'd , and he by this sentence , is surrogat in their vice ; and e. c. having given this bond , should have alwayes lookt upon this money , as that which he was moe wayes then one tyed to improve , and should have known , that this talent was not to have been la●d up . i will not burden your lordships , with satisfying the clamours rais'd against the rigidity of this pursute . it is not craved , that the king would bestow e. c. his estate upon forth , but that forth should be restored to his own , e. c. his life and fortune being at his majesties disposal , as excepted from the act of indempnity : the ransom craved , is only to restore the earl of forths estate . we desire not e. c. should be made poor by his crime , and it were unwarrantable to desire that he should be enriched by it , especially when his being enrich'd will necessarily starve them , who had never any requital for their loyalty , save this act of justice . forths lady and family have been forced to borrow money at dear rates ( as all starving people do ) to supply their want of these annual-rents , and if they be not restor'd to these , they are still to be beggars , for the principal will not pay their debts ; and so they must wander the indigent instances of their princes unkindnesse , and countries injustice , whilst their oppressors do warmly possesse their estates , as the reward of their opposition to his majesty . not decided in jure . for bartholomew parkman , against captain allan . tenth pleading . whether ships taken after they have carryed contraband-goods , can be declared prize . my client is , i confesse , ( my lords ) taken as an enemy to his majesty in this war , but it is by a privateer , , who makes all rich ships so ; his ship is adjudg'd prize , but it is by the sentence of a judge , who having the tenth of all ships as his share , was too much interested to release her when she was taken : but our law being jealous of that court upon that account , has allow'd a remedy by your justice , against what injustice they could commit ; and when we are concern'd with strangers , and to let forreigners know what justice our country dispenses , it was fit that they should have entrusted the decision to your illustrious bench , whose sentences may convince , if not satisfie , even such as are loosers by them . the sentence adjudging that ship prize , is by the admiral , founded upon these two grounds , first , that his maj●sty has , by his declaration ordain'd , that all ships which were sail'd by his m●jesties enemies the hollanders , should be seiz'd upon as prizes , and this ship was sail'd by hollanders , at least three of them were of that nation . the second ground was , that he carry'd contraband-goods for supplying his majesties enemies , viz stock-fish , and tar ; and though he was not taken with these contraband-goods , yet he was taken with that salt which was the return of these , having loaded in salt as the product of these goods . my client has rais'd a reduction of this decreet , as injust , and reclaimes against it upon these reasons . as to the first reason of adjudication , bearing , that the ship was sail'd with three hollanders , he alledges that the swede being an allye , was not oblieg'd to take notice of the king of englands proclamation of war , which is indeed lex belli , quoad his own subjects , and may warrand them in what they do against the hollanders , who are declar'd enemies ; but no lawes made by him can tye allyes , furder then is consented to by express treaties amongst them : and it were injust , that because the king of britain designs to make war with holland , that therefore it shall not be free for swede to use any hollanders in their service , especially since without hollanders , it is impossible to them to manage their trade ; and were it not injust , that all the swedes , spainiards or others , who had employed the hollanders before the war to sail their ships , and had rely'd upon their service , should be forced immediatly , upon declaring a war , to lay aside all trade ; and if it were injust for any in britain to take prisoner a hollander , who serv'd a swede in england , much more injust it is to take their ship and themselves as prize , because they were serv'd at sea by hollanders : nor is it advantageous for the interest of england , that this glosse should be put upon the proclamation , since it is englands interest , that the hollanders should all desert their countrey , and serve abroad amongst strangers ; whereas , by this glosse , they would be forc'd to stay at home , since none else could employ them ; and this will extreamly gratifie holland , who commands under severe pains , by publick placats , that none of their subjects , especially sea-men , should serve abroad . it is also humbly represented to your lordships , that some of the three who are hollanders are only young boyes , who have no constant domicile , but serve where they can have employment , and servants are , by the laws of oleroon ( which are now the lex rhodia of europ ) accounted inhabitants of that place where they serve ; and we consider not domicilium originis in servis , for they in all senses , and amongst all nations , follow the domicile of their master , else the power of masters would be much impair'd , and commerce much entangled . likeas , it is fully proven , that these men were not employed upon design by my client , but were hired by him upon the death of such as serv'd him when he was in denmark and holland , which necessity is sufficient to defend subjects , and much more allies ; nor is it imaginable that a swede , who is not concern'd in the war , should , if his men die in holland or denmark , lye idle there and loss his trade , and stay from his countrey , because he cannot employ his majesties enemies , nor would england allow this , if they were allies , and the swedes only concern'd in the war : and though in a former case , your lordships adjudg'd a ship called the castle of riga , because sail'd by hollanders , yet the greatest part of the sailers were hollanders in that case , who might , because of their number , have commanded the ship and taken her to holland , or have with her fought against his majesties ships , and have made them prize , when they were secure . nor doth it follow , that because his majesty in his treaty with spain , has allow'd the flandrians a liberty to sail with hollanders , that therefore it must be regularly lawfull to sail with hollanders ; for the design of that was not so much to allow the flandrians to sail with hollanders , as to secure them against seizures , upon the presumption of their speaking dutch , because of the vicinity of their language , sayes the treaty ; and if this had not been granted to the flandrians , all their ships might have been brought in , upon pretext that they were sail'd with hollanders . the second reason of reduction , upon which my client craves to rescind that pretended adjudication , is , that though he had carryed in stock-fish and tar to his majesties enemies , yet except he had been taken when he was actually carrying these contraband-goods , his being taken with the return of these goods was no sufficient ground of seizure , which i shall endeavour to evince by many reasons ; first , that by no law , stock-fish nor tar can be call'd contraband , seing contraband-goods are only such as are determined to be such by an express treaty , or by the general custom of nations ; neither are contraband-goods still the same everywhere , but are by private treaties with allyes , establish'd to be such , in respect of such termes as are agreed upon betwixt them ; and generally these are only counted contraband-goods quoad allyes , which have no use in the place to which they are carryed , but for carrying on , and maintaining the war ; and seing the reason why contraband-goods are prohibited , is only that allies may not assist in the war against the confedetats , it is therefore very consonant to reason , that the law should only interpret those goods to be contraband , which serve p●operly , and immediatly for maintaining the war , and tar cannot be call'd such , seing it serves more for peace , then war ; and though an naval war cannot be carryed on without tar , yet tar cannot be said to be contraband , no more then cloath , stuffs , linning , or such things , can be call'd contraband , seing a war cannot be carry'd on without these : and if we look to the treaty betwixt the crowns of britain and sweden , we will find , that tar is not enumerat in that article , wherein it is declared what goods can be accounted contraband , and in such special articles as these , inclusio unius est exclusio alterius , especially where it appears to be designed by both parties , that their subjects should be inform'd , what should be lookt upon as contraband ; and it was very fit that their subjects should have been inform'd expresly , else that treaty could but prove a snare ; and if we look narrowly unto the nature of the particulars there enumerat , we will find , that there is nothing there expressed to be contraband , but what is only and immediatly usefull for the war ; and there is no general in all that article , but only instrumenta bellica , which cannot be extended to tar , whithout an evident wresting of the word . . though by an expresse article , the carrying in victuals to enemies be discharg'd as contraband-goods , and that under the word of comeatus , yet victual is only declared to be contraband , in case it be carry'd to any of the enemies cities when they are besieg'd , si civitas sit obsessa ( saith grotius ) which restriction was very reasonable , for then the carrying in that victual was the relieving and the maintaining of an enemies town against the faith of the league ; for there , he who doth feed , doth defend : and though pesh . relates , that the dantzickers did confiscat , in anno , . sixteen sail of lubeckers for carrying victual to the enemies , yet he forgets to tell whether the enemies were besieg'd , but he expresly relates , that there , the carrying in victual was expresly prohibited . neither was there any such considerable quantity of these stock-fish carryed in here , as might shew any design of assisting the hollanders by victuals , seing it was carryed in a very small quantity , and might have been necessar for the pursuers own company ; and if they had design'd to have carryed these as commodities , they had carry'd them in greater abundance ; and tar is the product of sweden , and so commerce in it is necessar for them . and whereas it is contended , that the ship had formerly carried enemies goods , and consequently had transgressed that article of the treaty , whereby bona hostiam tuto advehere non licet ; it is answered , that if they had been taken carrying these enemies goods , the goods could have been confiscat , but not the ship ; it being very clear by the law of all nations , that it is lawfull even for allies to fraught their ships to strangers , in order to civil commerce , and that to hinder this liberty , is a breach of the law of nations , as is very clear by the constitutions of several nations , printed lately at venice , where amongst other articles , it is determined , si & navis & merces hostium sint , fieri ea capientium , si vero navis sit pacem colentium merces autem hostium ( which is our case ) cogi posse ab his qui bellum gerant navem ut merces eas in aliquem portum deferat , qui sit suarum partium ita tamen ut vecturae pretium nautae solvat . since then by the law of nations , the skipper behoved to have had this fraught pay'd , though he had been taken carrying enemies goods , it were against all sense and reason , that his ship could have been confiscat for carrying them : and camden in the year , . tells us , that pole did , by their ambassador complain , that the law of nations was violat , in that the english had in their war with spain , challenged their natives for carrying their goods to spain . and serviens relates a decision , . december , . wherein some hamburgers were declared free , though they were taken carrying corns and other commodities to spain , and because they were allies ; for the parliament of paris thought , that allies deserved better then others . if we consider the treaty with sweden we will find , that ships carrying contraband-goods are only to be seiz'd on , si deprehendantur , which ( like all words in treaties amongst princes ) must be taken in augustiori sensu ; nor suits it with the generosity of kings to take little airy advantages of one another , and to debate like pedantick formulists , who ensnare one another , in thin cob-webs , as spiders do flees : but in no sense can these words si deprehendantur , be extended to the ships being taken in any former voyage , for els they had been superfluous and impertinent , since no ship can be adjudg'd , except she be taken in some voyage : the genuine interpretation of words is , interpretari secundum subjectam materiam ; and therefore , since these words are insert in a treaty , wherein his majesty is to indulge favours to the swedes , they must be in reason so interpret , as that they may be a favour ; and there is no favour indulg'd here , if these words be not taxative , and if they declare not any ship free , which is not seiz'd carrying contraband the time of the seizure . by our law it has been very wisely provided , that we should use strangers in our admiral court , as they use us in their countrey , act . ia. . par. . and it is offered to be proven , by the law of sweden , tar is not esteem'd contraband , nor can ships be declared prize , for what they carryed in a former voyage ; and since our natives would complain of such usage in sweden , let them not meet with it in scotland ; which is very suitable to that excellent title , in the digests , quod quisque juris in alterum statuerit , ut ipse eodem jure utatur : by the law also of england , ( as judge jenkins reports , in a return to your lordships commission ) no ship is confiscated upon this ground . be pleased ( my lords ) to consider , what great prejudices would arise to trade , if ships might be seiz'd , upon pretext that they carryed contraband in a former voyage ; for by that allowance , all ships might be seiz'd upon , since this pretext might lye against all , and every poor merchant might be left a prey to the ravenous privateers , who might force them to ransome themselves from the very hazard of a seizure : in which case , whatever were the event of the confiscation , yet still their time and expense would be lost , and their secrets and papers would be made open ; which is so great a prejudice to merchants , that by the rhodian law , secreta 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , non licebat introspicere , & introspicientibus ultimum supplicum irrogabatur . it was likewise very fit , that the swede , and all princes should tye the privateers to a probation that fell under sense , and such is the having contraband-goods presently aboard , & ubi constare potest de corpore delicti , and not lay poor merchants open to the hazard of the testimonies of two rogues , who being tempted by malice or avarice , might depone falsly , that the ship carryed contraband-goods formerly : in which they might the freelier transgresse , because they could not be control'd ; whereas no such falshood is to be fear'd , if only actual carrying can confiscat a ship ; since there , the existence of the goods precludes all possibility of error or falshood . were it not also very absurd , to seize a ship which possibly carryed contraband in a former voyage , and thereby ruine a great many merchants who were the present fraughters of her , and who neither did nor could know what she had carryed formerly ? and yet , she being seiz'd , their voyage would be broke , and their fortunes ruined . or , if another skipper or owners had bought her from the first offender , were it not injust to seize the ship ? and yet the ship were prize , if this opinion could take place ; this were to pnnish ignorance , and commerce requires more latitude , then such principles can allow . it is , i preceive , urg'd for this opinion , that the commissions granted now , and of old , bear expresly a power to take ships which have carryed enemies goods ; and there is a commission produced , in anno , . of this tennor , together with two decisions of our admiralty to the same effect , neither of which are concluding ; for strangers and allyes are not obliegd to take notice of privat commissions , which are not leges belli promulg●●ae ; these may warrand against damnage and interest , but not against restitution ; and as to the decisions , they are founded upon other grounds also . it is also urged , that the carrying contraband being a crime against the prince or state who make the war , there is jus quaesitum to them , by the very commission of the crime , though the defender be not then actually deprehended ; as we see in other crimes , which are punishable , though the offenders be not actually deprehended : but to this it is answered , that princes may otherwayes use their own subjects , then they should be allowed to use strangers ; the having offended is sufficient in the one case , but actually offending is necessary in the other , for els our king might at any time , even after the war , seize upon one of these ships , because ( forsooth ) there was jus once perfectè quaesitum to him by the very offence , which is too absurd a consequence to be allowed : and albeit all that was done in the course of the war , be ordinarily caveated by the subsequent treaties , as to the nations who were ingaged in the war , yet allies being secured by no such treaties , their subjects might still be lyable to seizures , and hazards of this nature , which were both injust and inconvenient . consider that there is a difference betwixt such allies , as are tyed in a league offensive and defensive , and such as only enter in a treaty for their own advantage , as swede has now done : the first are oblieged to assist , and therefore , all correspondence in them were a breach , but in the other it is not so , and in them that maxim holds , that cuilibet licet uti jure suo , modo hoc non fecerit principaliter in aemulationem alterius : though all this traffique that is alledg'd were true , yet it clearly appears , that the great design of my client , was not to serve the dutch , but to maintain their own poor families , in a way which the severest lawyers could justifie . remember how little swede is oblieged to holland , who kept them lately from conquering denmark ; so that it is improbable they would have serv'd them , upon design to promote their war. remember how much our countrey-men were honoured lately by their great king , who preferr'd two of them to be generals , and thirty two to be collonels at once in his armies : and i must likewise remember your lordships , that the probation in such cases is very suspicious ; for there , a mans whole estate depends upon two mean fellows , and such two , as are under the impressions of their enemies , and who may expect at least their liberty as a bribe , and that their depositions come to us by an interpreter ; so that though he did not mistake them ( as he may ) yet the trust resolves at most in his single assertion , who is but one man , and who by being the ordinary servant of that court , is much to be suspected ; and therefore , your lordships may call for the witnesses , declare their persons free , and thereafter examine them . let us not be more cruel then the sea , and more mercilesse then storms , and after that these poor men have escaped those , it were inhumane that they should shipwrack upon our laws , which were to them , like hid rocks , upon which there stood no known beacon . figure to your selves ( my lords ) how these poor mens longing wives , send dayly their languishing looks into the ocean , as they can , to find them , or how the creditors , who advanced necessars for their aliment , expect payment from their return ; and how it must prevent the starving of their poor babes , whose craving apetites and cryes , do probably now astonish their indigent mothers ; it is those you punish , and not only our appealers : and how would we use enemies , who had murdered our country-men , when we thus use our allies . we alledge , that this is ( my lords ) a case wherein justice will allow some respect of persons ; and since politick advantages have given their first form and being to this law and proclamation , whereupon this seizure is said to be founded , consider , i intreat you , how inconvenient it were to disobliege by a decision , the king of sewden , whom your royal master , who understands best the advantages of this crown , has taken pains to obliege by a treaty , and how hard were it , if upon your decision , that prince should be forced to grant letters of marque , or lay an arrest upon all the vessels of our nation trading there , by which the innocent might be opprest for the guilty , many might losse for the gain of few , and the present unity of the two crowns might be dissolved , by a sentence of your court. the lords jointly sustain'd the adjudication , notwithstanding of this debate . for the burghs of regality , against the burghs-royal . eleventh pleading . whether it be free to all the lieges to trade with forreigners , or if this priviledge be only competent to burghs-royal . may it please your grace , since freedom , is one of the greatest blessings , and pleasures of mankind , those laws which design to abridge or lessen it , must be very unsupportable , and unfavourable ; except they bring other advantages , which in exchange of this bondage , can either convince our reason , or gratifie our interest . but if we consider the laws here founded on , whereby it is pretended , that none but the indwellers of burghs-royal can trade with forreigners , we will find , that these laws are so far from being advantagious , either to the publick , or to privat persons , that they are a great bondage on the one , and a great impediment to the other . the pursuers who desire to lessen the freedom of trade , are the sixth part only of scotland , who desire to retrench the priviledges of the other five parts , and the priviledge wherein they desire to retrench us , is our freedom , the very words of the priviledge they crave are , that we should be declared unfree-men , and unfree-men imports , slaves , in all languages ; and in reality , not to have liberty to export our own commodities , is to be slaves to such as may stop us , for in so far as they may stop us , they are our masters . that they are destructive to every mans interest , appears from the restraint they lay upon his inclinations , and upon his property ; as to his inclinations , they are very much restrained , in so far as though any of the lieges did never so ardently desire to trade , and though his breeding , and the situation of the place where he liv'd , did favour extreamly therein his inclinations , yet , except he live constantly in a burgh-royal , he cannot trade . they lay likewise a restraint upon his property , because though the situation of his estate be very advantagious for trading , and his estate consist in money , yet can he not imploy that money in trade , which is the natural use of it ; and thus in effect , these acts tend to enslave both our inclinations and our estates . nor do they lesse prejudge the publick interest , as will clearly appear by these considerations ; . by this priviledge , five parts of six in the kingdom , are debarr'd from trading ; whereas it is a known maxim in all nations , that the moe traders , the richer allwayes is the kingdom ; and upon this consideration , the english and french , have invited all their gentry to trade , by declaring , that merchandising shall be no derogation from their nobility and honour . . the more money be imployed upon trade , and the lesse upon annual-rent , the kingdom is alwayes the richer , for though privat parties may gain by annual-rent , yet the publick stock of the nation is not thereby improved , the one half gains there from another , but neither from forreigners ; and if all except burgesses be debarr'd from trade , then the money of five parts of the nation must lye idle , or els must be lent to merchants , which is not ordinar ; and to force us to lend , were unjust . . by this , the places in scotland fittest for trading , are kept bound up from using the natural advantages of their situation , to the great prejudice , of the nation , as we see in many instances , and particularly in lews and burroughstounesse , to keep which from being burghs , the burghs have spent a great deal of money . . this has ruin'd many little towns , who because they were debarr'd from all priviledge of trading , were forc'd to get themselves erected in burghs-royal , and after that they were erected , were forc'd to be at the expenses of keeping prisons , being magistrats , sending commissioners to parliaments , making publick entertainments , and so did ruine themselves without any advantage to the countrey : and by this , the number of burroughs are so far encreased , that it is a shame to see such mean creatures as some of them , sent to our conventions and parliaments , who , notwithstanding they want both fortunes and breeding , yet must sit as the great legislators of the kingdom , and must have a decisive voice , in what concerns the lives , fortunes , and honour of the greatest peers in it . i design not by this to disparage all burroughs , for most are represented by most qualified persons ; but to tax these laws , which have forc'd many little towns , either to send none , or to send such as are unfit . . all the countrey is ill serv'd , for in some shires , there are but very mean burghs , and in these burghs , merchants yet meaner , and if these want credit , to buy and carry out our native commodities , they must lye upon the owners hands , and the countrey wanting necessar returns , such as salt , iron and timber , must buy from very remote places . . if two or three merchants in better towns conspire , not to buy or sell , but at rates agreed upon amongst themselves , then the poor countrey must be at their devotion , and this were to grant monopolies , not only in one place , but in every shire , not only as to superfluous commodities , ( as use is , when monopolies are granted ) but as to all , and even the most necessar commodities ; after this , no man shall dare buy a skin , wine or sugar , but a burgesse , and which is yet harder , this will furnish a pretext to burghs to oppresse all such as they envy , under the notion of unfree traders . . his majesties customes will be thereby much impair'd , for the fewer traders be , the lesse will be both exported , and imported , and whatever lessens export and import , lessens doubly his majesties customs , of the which those are two hands . . other nations , who understand trade in its perfection , such as holland , do allow all their subjects to trade without difference , and it is a maxim amongst them , that many hands and many purses , make a rich trade . and it imports not to say , that their common-wealth differs from ours in its constitutions , and that they have vent for their commodities all over europe , whereas our vent is no larger then our consumption ; for whatever difference be in our fundamental constitutions , yet in the matter of trade , they are still the universal standart : and sure , it is the advantage of our countrey , even in order to our consumption , to have the priviledge of trade , in necessar commodities extended to all , for the moe importers be , we will get our necessar commodities at a lower rate , and the moe exporters be , our corns , fishes , &c. will give the greater rates , and those are the two great advantages of a kingdom . i confesse ( may it please your grace ) that the erecting of societies , as to some trades , and at sometimes , is necessar , but the ordinar rule extends there , no furder , then that trading to remote nations , and in rich commodities , should at first have some priviledges as to their erections , for else , privat stocks would not be able to compasse it ; but even as to these , when the trade is once secured , and becomes easie , and managable , then these priviledges cease , with the cause from which they had their origine : and therefore it is , that albeit trade with forreigners seem'd at first above the reach of our first traders , when to sail to spain , seem'd as har'd as an east-india voyage now doth , then trade needed some priviledges ; yet now , when experience and encrease of money has lessened those difficulties , i conceive the priviledges should expire . it is known , that the bishop of glasgow gave only his burgh then liberty to trade into the shire of argyl , and that the burgh of edinburgh had a special priviledge of old , to trade in the isles : but that now they need these , will not be debated even by themselves . i confesse , that all incorporations in a common-wealth ought to have different designs , and different priviledges suitable to these designs , as is pretended ; but it can by no clear inference be deduced from this , that the sole liberty of trading in all commodities with forreigners , should belong to burghs , but only that they should have some staple-goods , wherein they only may trade . and we are content to allow them , the exporting and importing of what is superfluous , such as wine , silks , spyces , &c. let all , even countrey-men , have the export and import of what is necessar for their own station and employments , let them export corns , cattel , &c. since the having these commodities signifies nothing without power to sell them , and the liberty of importing timber , iron salt , and these other commodities , without which they cannot live in their own station . and whereas it is pretended , that they are content we should export the natural product of our own countrey , providing we bring home money only for them , it is conceived , that this concession destroyes what is conceded , for if unfree-men can only bring home money , then free-men and burgesses may easily undersell them , for few abroad buy them with ready money , and money is the dearest of all returns ; so that these who barter commodities for what they export , may sell much sooner , and cheaper , if they bring home nothing in return of what they export ; for export by it self , without import , occasions great losse , and the advantages of merchandizing is ordinarily in the returns . whereas it is contended , that the lesse diffuse trade be , it prospers so much the better , for it may be easier govern'd according to the just rules . and our old law appointed wisely , that none but worshipfull men , and men of considerable stocks should trade abroad , that thereby poor people , by running over seas , might not by their necessity of selling , or want of skill , low the prices of what they exported , and buy unskillfully at high rates what they imported ; and that to defend trade against this dishonour and prejudices , guildries were appointed in burghs to supervise the conduct of merchants , and restrain abuses , which burghs of regality and barrony wanted , and so were lyable to many escapes . to this it is answered , that though at first , these rules were necessary , yet now when trade is raised to some consistency , this necessity fails with its occasions ; for there are no where poorer traders , then within burghs , to which ordinarily the meanest and poorest amongst the people retire , when they cannot live elsewhere , and when they are once setled there , they , because of the easie conveniences of trading , do indiscreetly run upon it ; whereas , none who live either in burgh of regality , barrony , or in the countrey , will be tempted to adventure upon trade , except they have considerable stocks , and be secure of a full vent . and without debating what was the design of our legislators , in erecting guildries , yet we now find by experience ( which is a much surer guide then project ) that guildries have conduced so little to advance trade , that they tend rather to secure the monopoly , which they at first procur'd , and to establish by mutual compacts , those exorbitant prices for commodities , which are now exacted : and if deaconries amongst malt-men and others , were discharged , to prevent combinations , i see not why guildries , which are but deaconries amongst merchants , should not be discharged for the same reason . but ( may it please your grace ) the great refuge against these convincing reasons , is , that these might have been urg'd , in jure constituendo , but not in jure constituto , for reasoning ends , where law begins , & omnium quae fecerunt majores nostri , non est reddenda ratio . but this may , i humbly conceive , be easily answered , if we consider , . that laws are mortal like their makers , and they who would bind up their reason to a constant adhering to what was once made a statute , behov'd to renounce that reason by which they should be govern'd , and leave off to be reasonable men , that they might be lawyers : and therefore it is , that because legislators might take an untrue prospect of future events , lawyers have determin'd , that where laws never grew unto observance , they did really never become laws , the being once observed is one of the greatest essentials of a law , statuta usu non recepta , nec observata , pro non factis reputantur , voet. de statut . cap. . sect. . arg . l. . § . . c. cad . toll . & alex. consil . . vol. . and if the not observance of laws for ten years after they were made , is in the opinion of lawyers , sufficient to repudiat them , much more ought they to be rejected , after they have for many hundreds of years , languished in a constant contempt ; for els they are but like these idols , of which the scripture tells us , that they had eyes , and saw not , ears and heard not , and feet but could not walk : and if we consider these laws , we will find , that even authority of parliament which can do all things in scotland , has not been able to maintain them in those ; for these statutes oftimes begin , that for asmuch , as there had been diverse acts of parliament , made in favours of the royal-burghs , ordaining they should have the only benefit of sailing abroad , &c. yet these laws have not been in observance , therefore , &c. as is very clear by the narrative of the . act , . parl. i. . and why should the act have been renewed so oft , if the former had been observed ? and if in spight of all these acts , the subjects could never be brought to compliance with them , why should we offer so much violence to our native countrey , as to force upon them that from which they have so much aversion ? if acts which have been strengthened by obedience and observation , may be repell'd bydesuetude , and a contrary custome , how much more may desuetude overcome acts which are not yet arrived at their due strength , and perfection ? . though these acts had been once in observance , yet they are now antiquated by desuetude and non-observance : that desuetude may antiquat and abrogat laws , is very clear from reading our acts of parliament , of which the full half are in desuetude , and are only considered now by us as matters of antiquity , as roman medulls , or old histories : and particularly , can the burghs-royal deny , but most of these acts limiting their trade and government , are gone in desuetude , as that officers within burgh should not be continued from year to year , i. . par. . act . they should not sail in winter , nor oftner then twice in the year to flanders , i. . par. . act . nor should they sail , except they be worshipfull men , and have at least three serplaiths of wool , or half a last of goods , i. . par. . act. . i. . par. . act. . frustra opem legis implorant , qui in legem peccant : and it were injust , that they should obliege others to obey , what they will not submit to . and that the acts whereupon the priviledges now craved , are founded , are gone in desuetude , appears very convincingly , from the constant practice of all the corners in the nation , not by single , or clandestine acts , but openly , upon all occasions , and in all places , and ages , even under the neighbouring observation of whole fleeces , and of all their succeeding serieses of magistrats : have not musselburgh , and borroughstounnesse near edinburgh , hamiltoun near glasgow , the greatest burghs of this kingdom , exercised this freedom which is now contraverted ? and though they made frequent applications to your lordships , yet till now was their never a decreet in foro in their favours , and decreets in a●sence , are rather founded upon the omissions of the defender , then the justice of the pursute . so that it appears clearly , that the magistrats have been ashamed to crave , the judges unwilling to allow , and the people stiffly refractory from submitting to the priviledges here crav'd to be declared . to this it is replyed for these burghs-royal , that desuetude cannot abbrogat laws under monarchies , though it could under common-wealths , nec potest tacitus populi consensus abrogare , quod expressus populi consensus non introduxit , l. . ff . de . leg . nam cum ipsae leges nulla ratione nos teneant quam quod judicio populi sint receptae , merito & ea quae populus sine ullo scripto probavit , tenebunt omnes . . though desuetude might abrogat such laws as respect only privat rights , yet the people by breaking penall statutes , cannot by repeated transgression , secure themselves against laws made for restraining their insolencies ; else by frequent usury , or attending conventicles , these delicts might passe in desuetude , and by the acts founded upon , the half of the offenders goods are declared to belong to his majesty , and these laws are in effect penal statutes . . where laws may run in desuetude , it is required , that the desuetude or contrary consuetude , be founded upon clear and open deeds , and not upon clandestine or precarious acts , as in this case , wherein all the trade with forreigners , to which these burghs-royal or of barrony can pretend , was either carry'd on under the name of free burgesses , or was tollerated by the neighbouring burghs-royal . . it is requisit , that the consuetude which is oppos'd to law , be judicio contradictorio vallata , which cannot be alleadg'd in this case , where not only no decreet can be instanced , finding these laws to be abrogated , but where there are decreets produced conform thereto . to the first of which it is answered , that though those laws seem to respect a common-wealth , yet it is generally received now , that a contrary desuetude may abrogat even laws introduced by monarchs , and that the taciturnity or connivance of the prince , is equivalent to a consent . thus perez , tit . quae sit long . consuet . sunt qui scientiam principis desiderant , quia in illum omnis potestas condendi juris translata , ego tamen existimo sufficere , ne princeps contradicat : and for this he cites , c. . de constitut . de . where a consuetude is sustained to abrogat law , though the pope ( who is a soveraign prince in his own dominions ) did not expresly allow it , dummodo sit rationabilis , & legittime praescripta ; and with us , do not our old laws die out by desuetude ? and do not new consuetudes dayly spring up , without any other warrand , then meer reason , and prescription : but in our case , his majes●y has so far allowed this custom , and has so far contributed with it to the abrogation of these laws , that he has under his own royal hand , granted many signatures in favours of burghs of regality and barrony , allowing them to trade with forreigners , and extending their priviledges as far as those of burghs-royal ; which signatures are pass'd in his exchequer , and authorized with his seal , which states this consuetude in a very different case from consuetudes which may abrogat penal statutes , or such publick laws as are made against conventicles ; the one his majesty opposes , in the other he concurrs . and this likewise answers that other objection , founded upon the clandestinnesse of these acts , for what act can be more publick , then these which passe his majesties hand , the publick judicatures , and common seals ; and as to extrajudicial acts contrary to the laws , they have been too many and universal to be latent ; but it is offered to be proven , that burghs-royal and burghs of barrony , have been in use openly and avowedly to drive on this trade , which they endeavour to maintain . and whereas it is alledged , that consuetudinis non vilis est authoritas , verum non usque adeo sui valitura monento , ut aut legem vincat , aut rationem , l. . c. quae sit long . consuet . to this some lawyers answer , that though it cannot over-power a law , whilst the law stands , yet it can abrogat and make the law fall , cont. ad dict . l. and others interpret so this law , as that they extend it only to a growing and unripe consuetude , which cannot indeed abrogat a law , that has not fully lost its vigor , as cujac . and others affirm . as to the fourth objection , it is answered , that a contrary consuetude can abrogat a law , sine judicio contradictorio ; for , judicium contradictorium is not that which abrogats the law , but only finds that the law is thereby abrogat , and it doth not strengthen , but declare the consuetude ; and the lords of session , by refusing frequently to declare this priviledge , have therein done what was equivalent to a judicium contradictorium ; and if this be not sustain'd , then the burghs-royal may crave , that all the lieges may be debarr'd from tapping wine , spices or other things , absolutely necessar for the accommodation of travellers ; for , the selling of those is as expresly prohibited by the laws founded on , as is the trading with forreigners : nor is the consuetude whereby these are abrogat , any otherwayes firmata judicio contradictorio , then this is ; and though the burghs-royal declare , that they insist not at this time to have their priviledges quoad these extended , yet certainly when they have prevail'd in the one , they will crave the other . and what an absurd thing were it , that all travellers behoved either to lye in burghs-royal , or to want that accommodation which is necessar , or to buy it at exorbitant rates ; and that not so much as a candle or penny-point should be sold , for the conveniency of the countrey , outwith a burgh-royal . i may likewise represent to your grace and lordships , that his majesty is not only , because the author , therefore the absolute arbiter of this priviledge , and may dispose upon what he hath given ; but that likewise by the . act of the . session of his majesties first par. it is declared , that his majesty has the sole prerogative , of ordering and disposing trade with forreigners ; and therefore , since his m●j●sty has granted to all burghs of regality , and many bu●ghs o● barrony , as full liberty in trading with forreigners , ●s h●●●th granted to any burghs-royal , i see not who in law can dispute this privledge with them ; at least , how the burghs-royal can in gratitude debate the extent of a priviledge with their prince , who at first gave it . nor can these concessions , in favours of burghs of regality and barrony be alledged to be subreptitious , as is pretended , since they are not only past in the ordinary way , but are frequently past , & actus geminatus facit actum censeri non esse subreptitium ; but likewise , after it hath been represented to his majesty from the burghs-royal , and their agents in court , that this concession was contrary to the priviledges granted to them by the parliament , notwithstanding of all this , his majesties predecessors and himself have still continued to grant these concessions . and that the burghs of regality and barrony have enjoyed this priviledge of traffique and merchandizing , is very clear by the . act , . par. i. . wherein it is declared , that for somuch as divers burghs of barrony and regality were in use to exerce the trade and traffique of merchandize ; therefore , that priviledge and freedom shall be continued to them . it hath been oft inculcat , that this priviledge granted to the burghs-royal , of the sole trade with forreigners , is not the meer effects of his majesties favour , and is not only founded upon the parliaments concession , but that it is granted to them , upon the account they pay the sixth part of all the publick impositions of this kingdom , which makes their contributions within burgh to rise so high , that if they had not this priviledge to ballance that inconvenience , they would not be able to ease the countrey , by paying so great a proportion : and if burgesses within burgh had no special priviledge above others , they would not live within burgh ; for , it were unreasonable to imagine , that when they might trade as well elsewhere as within burgh , that yet they would continue to live there , under great burdens , and without any priviledges . to this it is answered , that the . act of parliament , i. . par. . whereby it is declared , that their part of all general taxations shall extend to the sixth part allanerly , bears no such quality ; nor do the acts of parliament bear any such onerous cause ; but the true reason of their bearing the sixth part of the kingdoms burdens , is , because they are intrinsecally the sixth part of the kingdom , if we look either to the number , or riches of their inhabitants : and if the burghs-royal were accounted the sixth part of scotland , under the reign of king iames the first , how much more great a proportion are they able to bear now , when the burghs are six times more numerous , and each particular burgh six times more rich and populous , then they then were ? their riches have encreased with our luxury , and the luxury of our age doth far exceed what it was in that kings time ; so that since now the nobility and gentry only toil to get money , to buy from burgesses what they import from forreign countries , i conceive those burghs may easily bear a sixth of our burdens , since once a year they get in all our stock . and to any thinking man , it may easily appear , that all the money in scotland doth once a year circulat and passe thorow the hands of citizens : for money serves only either to pay our annual-rents , or buy us necessars ; and that which is payed for annual-rents , is by the receivers given out to others , to satisfie their present necessities , and all is ultimatly employed for food or rayment , and little money is bestowed upon food or rayment in scotland , except only within burgh . since then this priviledge doth divide scotland in two parts , since equity in it seems to oppose law , and since both parties pretend to national advantages : i shall humbly move , that if this illustrious senat be unwilling to interpose in so universal a difference , that this debate should be transmitted by them to the parliament which is the full representative of all the kingdom , and the natural judge of equity and convenience . the session referr'd this case to the parliament , who extended this priviledge to all the lieges . for the earl of northesk , against my lord treasurer-depute . twelfth pleading . whether a novo damus secures against preceeding casualities . my lord president , it is one of the chief advantages of our nation , in this age , that we live under a prince , who covets more the hearts of his subjects , then their estates ; and who loves rather to see his laws obey'd , then to have his advocat prevail : what measure then can his fisk expect , when in general , all lawyers have even under tyrants delivered , as their opinion , semper contra fiscum in dubio est respondendum ? and since flattery or fear may encline some , to favour the princes interest too much ; it is fit , that judges should be jealous of the●● own spirits in such cases , and should bend them , rather to the other side , that they may fix at last in a straightnesse . the case propos'd is , whether the novo damus not expressing the casuality of marriage specially , but all casualities in genera● doth by our law , ●e●end against the marriage ? that i● 〈◊〉 . i presse for my client , upon these grounds f●●st a n 〈…〉 〈◊〉 is that , which the feud●lists , call re●●va●● feudi , and 〈◊〉 feudi doth import , liberationem ab om 〈…〉 caducitate ; nay , the very nature of a disposition or alienation doth imply , a liberation from any burden , with which the disponer could affect it , else he should alienat and yet retain , give and not give ; and therefore , by the civil law , he who dispon'd land , was interpreted to have dispon'd it tanquam optimum maximum , free from all the disponer could lay to its charge . if any person should dispone his land to me , and should thereafter crave a ward or marriage , as due out of these lands tanquam debitum fundi ; certainly it would be an absurd pursute , and i would be absolv'd ; nay , if a superior enter me to my lands , eo ipso , i am free from all preceeding casualities ; nor did ever a vassal take discharges at his entry of any former casualities , but his entry was alwayes judg'd sufficient ; why then should not his majesties vassals be in the same condition ? for since this is clear in other vassals ex natura feudi , there being no statute in their favours , it must be due to all vassals ; for , à quatenus ad omne valet consequentia ; and that which is natural to few's , must be inherent in all few's . the design of a novo damus is , to secure the receiver against nullities ; the law thought to set this as a march-stone , and let not us remove it . the stile of a novo damus in our law , which is equivalent to expresse law , is very exactly adapted to this design , as may appear by all its clauses ; for , when his majesty de novo dat , that chartor must be equivalent to an original disposition ; and sure , if these lands had belonged to his majesty , and if he had disponed them , that original right would secure the receiver , against all his majesty could crave out of these lands , except in so far , as he did exp●●sly reserve at the making of the disposition ; nor do i see , 〈◊〉 reservations of former rights were necessar in dispositions , if these rights were rese●v'd without them , and if they were not cut off by the alienation it self . but , not only doth this novo damus dispone in favours of my client , the land out of which these casualities are sought , but it dispones them , cum omni jure , & titulo , interesse & jurisclameo ; tam petitorio quam possessorio , quae nos , aut predicessores , aut successores nostri , habuimus , habemus , vel quovis modo habere possumus , in , & ad , dictas terras . what can be more expresse ? for if his majesty had any claim to , or right in , these lands , any manner of way , he here dispones it , and transfers his right , in , and to my client ; if his majesty have any right at all , it must be vel jus , vel interesse , vel jurisclameum , and if it be either of those , it is dispon'd : but lest it might be pretended , that this clause extended only to secure the property ( which is not its only effect . as i shall clear hereafter ) therefore , the stile of a novo damus bears omne jus , non solum quoad aliquam ejus partem , sed & ad omnes census , firmas , & proficua , ratione wardae , purpresturae , foris facturae , non introitus , eschetae , &c. vel quocunque alio jure , vel titulo : from which general clause , i draw these inferences ; first , that this general clause must seclude his majesty , since tantum valet genus quoad omnia , quantum species quoad specialia , bald. consil . lib. . gemin . consil . . & l. si duo ff . de administ . tut . and therefore , since a special gift of this marriage would have secluded the king or his donator , a general concession must do the same , especially since this general was designed to secure against all , in respect particulars could not be remembred ; even as we see in general discharges , or renunciations , which are as valid quoad all , as any particular discharge can be , as to a special debt or deed ; and since this general discharge of all former casualities , is so oft repeated , and represented under so many various terms , which can signifie nothing , if they did not expresse the exuberant will and inclination of the prince , to denude himself , and secure his vassal , aginst all former casualities , as well marriage as others : and this clause is equivalent to that clause spoken of by the doctors , quovis modo vacet , which comprehends omnem modum vacandi , & omnes formas excogitabiles renunciationis , cap. consil . . . general clauses subjoyn'd to specials enumerat , must be extended at least to all such specialities , as are of the nature of the specialities enumerat ; for , the subjoyning a general to specials , is designed to supply the not enumeration of other specialities which are homogeneous , clausula generalis quae sequitur casus speciales enumeratos , extenditur ad similia specificatis , socin . consil . . but so it is , that the casuality of a marriage is of the same nature , with many casualities he especifically exprest , such as ward , non-entry , escheat , &c. to which the superior having right in the same way as he has to marriages , it is presumed , he would discharge it in the same way with them . . general gifts must be extended to such particulars , as probably the granter would have gifted if they had been exprest ; but so it is , that it is beyond all doubt , but , that his majesty , if he had been asked , whether he was content to dispone and gift the marriage , he would have consented very freely to gift the marriage , as well as the other casualities , this marriage must therefore passe under the general ; and how can it be thought , that he who granted all other casualities , would have refused this ? or what speciality was there in this casuality , which might have occasioned this refusal ? nam geineralis clausula idem operatur , quod specialis , ubi non subest ratio diversitatis , curt. consil . and upon this ground it is statute , that general clauses in remissions , shall be extended to all crimes of lesse gravity , then the chief crime which is exprest , act. . i. . par. . and if great crimes can be taken away by general clauses , sure it cannot be denyed in civil casualities , which are of their own nature easier pardon'd , and of lesse consequence : and by that act , it is clear , that the general clause was extended formerly to all , even greater crimes then the crime specified ; a●d if a statute was nece●sar there , it is much more necessar here , els the general clause cannot be restricted . sure he who granted the property , would not stick at a casuality , he who granted the greater , would not stick at the lesser ; he who granted so many casualities , would not stick at one ; he who granted all the others of that same nature , would allow this to passe with its fellows ; and he who granted ward , which is the cause of marriage , would not have refused , to grant the marriage , which is but an effect and consequent of that ward : and this leads me into another argument , upon which i lay very much weight ; his majesty has here gifted omnia proficua & devorias quae contigerunt ratione wardae ; but so it is , that marriage is a casuality proficuum & devoria ; which falls by reason of ward-holding : and so contingit ratione wardae ; for , ward here is taken not as a naked casuality , but as a holding , and therefore it is , that when by the stile of a novo damus , all casualities are enumerated , marriage only is not specified in the old signatures , because that casualitiy was still lookt upon , as comprehended under the general , omnia proficua ratione wardae . not only do many general terms of this novo damus secure against this and all other casualities , but his majesty in his concession , expresses all the wayes of transmission , whereby these casualities could be given by him to his vassal , viz. renuntiando , transferendo , & extradonando eadem , cum omni actione & instantia : and in contemplation of this right , his majesty has a considerable composition in exchequer , which makes this to be not only a gift , but a bargain , not only meer law , but equity . to ballance these reasons , it is represented for his majesty , and his donator , that all his majesties concessions are gratuitous , and must not be too largely extended , for what compositions are payed , are rather payed as fees to his majesties officers and attenders , then as a price , and these are too low , and unproportionat , to what is given , to deserve that name . . that his majesty cannot be prejudg'd by the negligence of his officers , and what he passes in favours of his vassals , deserve a far other construction , then what is done by other superiours ; and though general clauses may carry away casualities from them , because it is presum'd , that they have leisure to ponder every word , in any right they grant , yet his majesty being loaded with the weighty affairs of the nation , cannot vaick to so exact observations ; and therefore it was thought fit , that the negligence of his officers , nor the importunity of parties , should not prejudge him . . that the gift of a ward , per se , would not carry the casuality of marriage , if it were not exprest ; ergo , marriage could not be comprehended , under the casuality of ward which is here exprest . . that general clauses are in many cases but error stili , and are restricted by the decisions of all our courts ; thus though the stile of a gift of escheat , doth dispone all moveables which the rebel had , or shall acquire ; yet , these gifts are restricted by our decisions , to what the rebel had , the time of his rebellion , or should acquire within a year after the rebellion : though gifts of ward and marriage bear , ay and till the entry of the next lawfull heir , yet these gifts are restricted to three terms non-entries , subsequent to the ward ; and though gifts granted do bear relief , yet they would not carry a right to the relief . . that the design of a novo damus is to secure the property , but not to transmitt a right to any casualities not exprest ; and thus the king might , notwithstanding of a novo damus crave bygone few duties ; nor would it debar his majesty from craving taxt-wards or marriages , as was decided in the case betwixt his majesties advocat , and pierstoun , where it was found , by the exchequer , that marriage was not comprehended under the novo damus , because it was not exprest . i am not , my lords , willing to lessen his majesties fa●ours to his subjects , who were not worthy of them , if they undervalued them ; and therefore , i beg leave rather to magnifie them so far , as to think , that they should not be interpret so narrowly , as to bear a proportion to our deserts , ( for the favours of princes cannot , like his whom they represent , be merited ) but so augustly and opulently , as may bear a proportion to the greatnesse of him who dispenses them , as clarus and all the feudalists observe ; and if the word can admit a large interpretation , the grants of princes ought to have it : so , that since these general clauses would carry all casualities in gifts granted by privat superiors , much more ought this to be allowed in augustioribus principum concessionibus , especially in discharges granted by them of all former incumberances , which being of the nature of indempnities , ought like them to be interpret all possible wayes to defend the poor vassal . nor do i deny , but the negligence of his majesties officers should not prejudge his interest , yet , gifts granted cannot be called negligence ; for the one is an omission , and the other a commission ; the one is a privation , and the other a positive act ; the design of that statute was to defend his majesty against the omission of his officers , such as the suffering his rights to prescrive , or omitting to propone defences for him ; and the words of the act . par. . ja. . are , that in the pursuing or defending any of his actions or causes , the negligence of his officers omitting any exception , reply , &c. shall not prejudge him . but god forbid that every gift granted by his majesty , and past by his exchequer , might be thereafter questioned , because a sufficient composition was not payed , or that it was not founded upon a sufficient cause ; for else , all our signatures and rights might be questioned ; this were to unhinge all our securities , and to endanger all his majesties officers ; but how can what is past his royal hand , be thought to be past by the negligence of his officers ? and how impertinent were it , for his officers alwayes to stop what his majesty commands ? i confesse , that the gift of a ward per se , would not carry marriage ; but if his majesty did grant omnia proficua ratione wardae contingentia , though in a single gift , i think it would give right to the casuality of marriage ; and yet , that case would not be so strong as ours ; for in single gifts , it is proper to expresse casualities dispon'd , but in a novo aamus it is otherwise ; for the design there , is by the enumeration of all special casualities , and by subjoining a general to these , thereby to secure against all these casualities . to what is founded upon the errors , that are in many of our stiles , i need only answer , that regulariter stilus aequipollet juri , & pro lege habetur , l. si quando c de injur . bart. in l. peritos ff . de excus . tut . and therefore , though as laws may be abrogated or restricted , so stiles are subject to the same frailty ; yet , unlesse it can be made appear , that these stiles are restricted by the constant current of decisions , or by some expresse laws , certainly , stile must rule us : stiles are the product of common consent , and are introduced after much experience , by such as understand ; they are to lawyers , what the cart is to geographers , or the compass to sea-men ; and this is so far from being convell'd , that it is established by the instances adduced , by the donator for gifts of escheats and non-entries , did take place according to the latter , till they were restricted by expresse acts of exchequer : and sure these acts had been needlesse , if the stile had not been binding , before these statutes drawn backwards , but having a future obligation only , every man knew how to compone or transact for them accordingly . as to the instance of reliefs , by-gone few-duties , taxtduties of ward and marriage ( which was pierstons case ) it is clear , that the reason why these passe not under general gifts is , because they are liquid , and so cannot be compon'd for , in exchequer , as hope well observes , for these are no contingencies ; and since the law gives right to any thing in a signature , because it is compounded for ; therefore , in justice these things cannot be comprehended in a signature , which are not compounded for . we have likewise an expresse act of parliament , appointing that reliefs should not be compounded for , which draws out these from the common objection , and states reliefs in a case far different from ours . and though it be much urg'd , that his majesty having taxt the casuality of ward and marriage in this gift , it is most presumable , that he would have exprest the casuality of marriage , if he had designed to have transmitted it , since that casuality was then under consideration : yet , this is but a remote conjecture , and must cede to the stronger presumptions urg'd in the contrair ; and since the signature is not drawn by his majesties order , but by the vassal , the presumption ceases ; and it is more presumable , that the vassal would have exprest this casuality , had he thought it necessar : and whatever might be urg'd , if this casuality of marriage had been exprest , but had been delet ; yet there can be little difficulty , where the signature was presented without it , and where the vassal rested upon the general clause . all the lawyers of our nation have advised , that this novo damus did seclude marriage , though not e●prest ; all the people have esteem'd so , and upon that esteem , they have bought and sold accordingly , rights carrying such a novo damus ; so that whatever may be done as to the future , yet since so many have compon'd with his majesty for such gifts , in contemplation they carryed all casualities , and that so many have given considerable sums to such as had compon'd for them , upon that consideration ; since this opinion was so old and universal , and since ignorance in it ( if it be an error ) was so invincible , being warranted by the advice of the ablest lawyers ; i cannot see how in law quoad preterita it can be otherwise interpret , whatever fate it may have for the future . the lord found , that a right granted by the king , with a novo damus , did not only secure the property , but secluded all casualities that were exprest ; but that it did not defend against casualities which were not exprest . for john johnstoun , againstjames hamiltoun . xiii . pleading . whether a contract entered into by a minor , who averr'd himself to be major , and swore never to reduce , be revocable . the law might seem a severe master , if it only impos'd upon us what we were to obey , and exacted from us an intire submission to what it did command : but in recompence of our submissions , it returns us its protection , it doth supply want of strength in the weak , when they are ingaged against the strong ; want of wit in the simple , when they are ingaged against the subtile ; and want of age in minors , who would otherwayes be very easily circumveened : it appoints its judges to be their tutors , and whilst such as rely upon their own wit , may be circumveened , they are by its assistance plac'd beyond all hazard . amongst those other minors , who dayly come to crave from you , the reduction of what they did in their minority , none was ever more favourable then my client , he being a person , who because of the lownesse of his parts , and meannesse of his breeding , is like to continue very long a minor. and if sharpnesse , & malitia , can in some cases forestal majority , and almost meet it half way , certainly want of wit and ordinar sagacity , should extend the priviledge of minority . the person by whom he is laes'd being his own kinsman , and one in whom he confided very much , pleads likewise for a more liberal reparation , and the same principle which makes murder under trust to be treason , should likewise make the lesion here to be more easily reparable , and should not only weaken the defences , but should likewise be a sufficient ground to repell such as were of themselves relevant : and the lesion here , is not one of these small injuries , but is a great and considerable losse , wherein the minor has not only been induced to sell his land , though the law appoints , that a minors land should not be sold , but by the authority of a judge ; but to sell his fathers heretage , transmitted to him by a long series of ancestors , and to sell it too without the consent of his curators , who are the only persons who should defend and supply his infirmity . against these reasons , it is debated for the defender , that though minors have great priviledges allow'd them in law , yet many causes may occurre , wherein it were unjust to proportion exactly the prices of what they sell , with the ordinar prices of what is sold ; and the same equity whereupon their priviledge is founded , may make such exactnesse , not only to appear to be , but really , to be rigour . as if a minor should , to free him from the gallies , obliege himself to sell land at an easie purchase , to one of his countrey-men , who were then in a forreign country with him , and from whom he could only expect money , and which money being to be bestowed upon merchandize in these countreys , might produce far greater advantage to the merchant , then the land could ; which , and many other instances , may clearly evince , that if minors had not some way whereby they might secure such as would contract with them , the law would secure them , but as it doth prisoners , and which was designed to keep them free , would take their freedom from them ; and therefore , the law has introduc'd , that minors being in confinio majoritatis , may subjoyn an oath to their contracts ; which oath is , because of its divine character , and of the reverence that 's due to that great god , who is called upon as witnesse in it , by all christian lawyers declared to be sufficient to fix and corroborat the contract to which it is subjoyn'd . for , the law of god oblieging every man to observe what he has sworn , even though to his prejudice , it were unfit that the laws of men should be more binding than those . likeas , by the common law , l. . c. si adversus venditionem , an oath confirming vendition is declared binding , nullam te esse contraversiam moturum , neque perjurij me auctorem tibi futurum sperare debuisti . and authent . sacramenta puberum , doth expresly tell us , that sacramenta puberum sponte facta , super contradictibus rerum suarum non retractandis , inviolabiter custodiantur . which is likewise observed by our law , the last of february , . and by a late decision , . february , . mr. george wauch contra bailie of dunraggat . but not only has this minor oblieged himself upon oath , not to revocke , but he hath likewise declar'd upon oath in the same bond , that he was major , and majority being that which cannot be known by the eye , and there being no liquid and present proof of a minors age , the law should have prejudg'd commerce very much , if it had not allow'd that a minor asserting himself to be a major , should notwithstanding be restor'd against his own declaration : for by this , not only should minors be disabled from getting money to do their necessar affairs , but likewise majors behov'd still to wait till they should get an exact probation of their age ; which probation is very difficult with us , where there are no certain registers ; and consequently , majors might , because the probation of their majority could not be presently instructed , be very much prejudged , and sometime the probation of age , being that which cannot appear convincingly to the sight ; and that being a case , wherein such as contract with minors might be cheated , it was very just , that since the law designed only to assist minors that were cheated , that it should not give the same priviledge to such minors as cheat others , by asserting themselves to be majors , l. . si min. se major . dixerit . si is qui minorem nunc se esse adseverat , fallaci majoris aetatis mandacio to deceperit , cum juxta statuta juris , errantibus non etiam fallentibus minoribus publicajura , subveniant , in integrum restituti non debet . and since dioclesian , who was not only no christian , but a persecuter of them , did bear such respect to an oath , what respect ought it to have from christian judges , who if they suffer this oath to have no effect , are the occasion that the name of god is taken in vain ? minors may be punish'd for perjury , falshood , and cheating , and therefore , it followes necessarily , that they may much more be bound by oaths ; for it were injust to punish them for perjury , if they understand not perfectly the strength and efficacy of an oath , and if they do understand that , there is no reason to absolve them from it : and if it can bind them to severe and corporal punishments ; it can bind them much more to the performance of civil contracts . nor can it be deny'd , but that our law respects so much an oath ; and finds it so obligator , that deeds done by women in favours of strangers , stante matrimonio are null , though ratified by an oath , as was decided . february , . brisband contra douglas ; at which time , the lords were of opinion , that all obligations which are ipso jure null , such as obligations made by women stante matrimonio , and by minors having tutors and curators , but without their consent , are still null , though they be ratified by an oath : and if this be true , as is acknowledged , they contend , that there is no reason why all contracts entred into by minors should not be valid , for the obligation of an oath lyes in the hazard of perjury , and in the religious respect which lawyers have to oaths ; and in point of conscience , what difference is there betwixt contracts ipso jure null , or such as are not so ? god takes no notice of such subtile differences , and since the oath is the same in both , why should it not produce the same effect ? it is the oath which in this case oblieges , and therefore , though the contract were null , yet the oath still binds , and subsists , though annext to an null contract , even as a null contract may be ratified , or homologated . and that contracts upon oath , do bind minors , though they have curators , and though they subscribe without their consent , is maintain'd by most famous lawyers , as andreolus , contravers . . est enim haec opinio ( inquit ille ) fundata in religione juramenti , quae semper militat , sive minor habeat curatorem , sive non , & censequenter cum religio juramenti , & odium perjurii in utroque militat casu , in utroque etiam debet manere effectus . other lawyers assure us , that juramentum minorem , representat majorem , and therefore , since majors are bound , and minors swearing are majors in the construction and interpretation of law , minors swearing should be also tyed by these contracts . nay some have said , that juramentum fingit minorem non habere curatorem . bald & corn. ad auth . sacramenta pub . and according to the canon law ( which craig sayes , we follow in what concerns our consciences ) juramentum semper est servandum , quotiescunque potest servari sine dispendio salutis aeternae . it is likewise alledged for him , that minoribus deceptis , non decipientibus est succurendum ; because there , the want of wit , which is the ground of restitution , ceases ; and it were also unjust , that this remedy should be abused against the design of the legislator ; nor should the minor have the protection of that law , which he has offended : but so it is , that its offered to be proven here , that the minor was a person traffiquing upon his own account , and such cannot be restored , fortia de restit . min. part . quaest . . how dangerous were it , if such as were merchants , and common traders , should be repon'd ? for then , who should contract with them , or how could innocent people be secured ? that same necessity and publick interest , which introduced the priviledges of minority , has likewise introduced many other priviledges in favours of commerce ; and since it were disadvantageous to debar minors from trading , it were unreasonable to state them in a condition , in which their trade would be ineffectual ; for who would bargain with them , or bestow trust upon them , if their transactions could be rescinded upon the pretext of minority ? it is ( say they ) to be presumed , that experience and art ( learned by them whilst they were practisers ) doth supply the imbecillity of their greener years , and since by learning and art , such as are very young do outstrip very far such as are of riper years , and attain to very much exactnesse in the subtilest sciences , why may not application refine them also to a sufficient consistency in merchandizing , in which there are no such mysterious points ? upon which account , even our law has introduced , that advocats , nottars , and others in publick offices , cannot revock what they do in their minority , as was decided , . july . . if , say they , the minor was forced to sell his heretage , it was to redeem his person from prison , and freedom is preferable to heretage , because liberty can please without heretage , but heretage signifies nothing to one who wants liberty ; and for this heretage my client gave out his money , by which he had raised himself to a considerable fortune , and being forced by want of this money to quite his trade , he did loose hope of gaining a greater estate , then that which the other sold : but this he did to prefer his friend to his hopes , and so this frendship and relation which the pursuer would make the foundation of a cheat , was indeed the foundation of this favour , and the law presumes , that his cousen would not have cheated him . notwithstanding of all which plausible representations , i humbly conceive , that the minor my client ought not to be tyed by this oath ; and that what i debate in his favours may be the better understood , your lordships will be pleased to consider , that all civil polish'd nations , have in effect resigned so far their liberty to their legislators , that these in their contracts , are to be ruled by those in their statutes : and god almighty is more concerned in the oeconomy and government of the world , then in the observation of privat oaths ; and therefore , we must consider more the force of a law , then of an oath ; and if privat oaths amongst parties could derogat from publick laws , then the publick laws should be absolutely evacuat , and remain as the empty shadowes of what they ought to have been . and from this i infer , that since the law has thought fit to declare all deeds done without the consent of tutors and curators to be null , that no deed done by any minor having curators , can bind him , except he be authoriz'd by their consent . and from the same principle , i likewise infer , that the former distinction made in law , betwixt such deeds as are ipso jure null , and such as are not ipso jure null , but are only reduceable , is so far reasonable , in relation to this contraversie , that though deeds that are ipso jure null be not reduceable , if they be not confirmed by an oath , yet deeds that are ipso jure null , are reducable though sworn ; for in case the deed be ipso jure null , it is reprobated by law , and so is no deed in the construction of law ; and if it be no deed , it cannot be confirmed by an oath , for a confirmation presupposes a pre-existing deed , sed non entis nullae sunt qualitatis nec accidentia ; and so this oath wants here a basis upon which it can be fixt . . it were unfit , that what the law has expresly condemned , it should allow others to evite , for it should thus cheat it self out of its own authority , by such indirect courses , et quod directè fieri non licet , nec per ambages fieri licet . in vain were laws to be made , if every privat man might enervat its force , and evite its sanction by such subterfuges ; this were to invite men to break and scorn laws , to allow them to tear off their own yoak , and to place every privat man above the legislator . for , as oaths exacted by magistrats obliege not , when they are contrair to the laws of god ; so the oaths of privat persons obliege not , when they are expresly contrair to the laws of our rulers , who are gods upon earth . and as vows are declared null by god himself , if given by a maid without the consent of her father , so should oaths for the same reason not obliege such as have curators , for these are the parents in law. . no oath can be vinculum iniquitatis , the tye of injustice ; but so it is , that where a deed is declared null by the law , that deed is in so far injust ; and to allow a deed that is injust because it is sworn , were to establish injustice by an oath , and to put it in the power of every privat person , to alter the nature of things , and to make that just which is injust . . this would disappoint the cares and pains of the civil magistrat ; for , his design being to secure our posterity , because of the imbecillity of their judgment , that would be absolutely eluded , and poor minors would by that same want of judgement and sagacity , for which their deeds are reduceable , be induced to swear , and so the remedy will become effectual , nam eadem facilitate ju●ant qua contrahunt . and since minors cannot be oblieged in their minority , because of their imbecillity , oaths should not bind them , except it could supply that ; and since the law has given them curators , it is just the deeds done by these minors should not be respected in law , since the forms prescribed by law are not observed , nor the reason satisfied whereon it is founded . . this would open a door to perjury , for such as could not cheat minors , because of their lesse age , would cheat them by their oaths ; and thus , oaths which should not be given but upon solemn and extraordinary occasions , would become cheap , and would be taken in every ale-house , administrat by every nottar or his servant , and the best of tyes would oftimes be us'd in the most sinfull occasions : and how can such oaths as these obliege , since they want all the three qualities of an oath , and for which , oaths are declared in scripture to be obligator ? and these are , that they should be in truth , in judgement , and in righteousnesse . i know , that every man may renunce what is his own interest , but this maxime holds only where men understand their own interest , but not in minors , who want that ripenesse of judgment , by which their renunciations are sustain'd . and that the oath is obligatory , though not the contract , is but a meer quible , for there is no action arising in common law from an oath , qua tale , bart. ad l. si quis c. de fidejuss . imol. ad c. cum contingat de jure-jur . such an oath oblieges in conscience , but not in law , and though it be the substance in the one , it is but an accident in the other . i need not debate here , that the authentick sacramenta puberum , ascribes only this cogency to oaths which are given tactis sacrosanctis evangeliis , which though it may seem but a solemnity , yet has great force with it , in my opinion ; for solemnities do raise up the attention , and obliege more the swearer to advert to what he is promising : and if witnesses and others come to age , need these advertisments , much more do minors need them , since they are oft overtaken by inadvertence . and as this caution seems not to have been unnecessarily adjected by that excellent law ; so seraphinus and others have required necessarily , that solemnity in such oaths as these , antiqui quo major esset jurisjurandi religio , plerasque adinvenerunt ceremonias , quae jurantibus terrorem ac formidinem incuterent , ann. robert. pag. . and swearing by touching somewhat that was sacred , was very old . virgil. tango aras mediosque ignes & numina testor . justin. also , l. . relates , that agathocles swore a confederacy with the carthaginians , expositis tactisque ignibus cereis : and by all our old evidents it is clear , that swearing upon the bible or altar , was used in all extraordinar cases . and for the same reason , oaths in writ have been oft-times little respected by lawyers , because the writ is oft-times not read nor considered , and passeth by too transiently to have all the force which a solemn and judicial oath deserves , vid. bart. and l. qui jurasse , ff . de jure-jur . & fachin . contrav . lib. . cap. . so that we should either not seek the benefit of these laws , else we should make use of the forms and ceremonies which they prescribe . as to the assertory oath , by which the minor swore that he was major , it is answered , that such oaths ought not to be respected furder then as the above-cited laws declare , which is , that these oaths ought to be believ'd , except the contrair can be proven by writ , and that the truth and strength of this probation cannot be taken off , and enervat by witnesses , for a writ is a more binding , and concluding probation then witnesses , who may be mistaken , or may be corrupted . si tamen in instrumento per sacramenti religionem majorem te esse adseverasti , non ignor are debes , exclusum tibi esse in integrum restrictions beneficium , nisi palam , & evidenter ex instrumentorum probatione , per non testium depositiones te fuisse minorem ostenderis . but here it is offered to be proven , by the register of the church-session where my client was baptized , that he was minor the time of the transaction , and by this your lordships may see , how dangerous it were to make such oaths as these binding , and how easily minors may be induced , not only to bind , but to damn themselves , and how little this person deserves , who was the occasion and sollicitour of the perjury : were not this to baffle that sacred tye , by which princes bind their subjects to a secure obedience , by which judges obliege men to reveal the truth , and by which every privat man is secure , when he referreth to his adversars oath , the truth of what is contraverted amongst them . nor can the defender maintain this contract , as entered into by my client , who was a merchant by his profession , since though that may defend such as contract with him , in things relating naturally to his commerce , yet that should not be extended to such contracts as these , wherein my client is bound to sell his heretage at too low a rate , et quae ex necessitate per modum privilegii introducuntur , ultra casus necessarios non extenduntur . lands are not the subject matter of that traffique which the law doth priviledge ; but on the contrar , lands is not allowed to be sold , without the consent and sentence of a judge : nay , and even these qui veniam aetatis à principe obtinuerunt , will be restored against the prejudice sustained by them in selling their heretage , l. . c. de his qui veniam aetat . albeit no man could impeterare veniam aetatis , till he was past eighteen , and was proven to be prudent and frugal , l. . c. eod . which is all that can be alledged against this minor. nor should our law respect much confinium majoritatis , since they have shortened too much the years of minority , in making it end at twenty one ; whereas , the romans and others who were sooner ripe , and more sagacious then we , extended minority to twenty five : and since our times are more cheating then theirs , it was fit that our minority should have been longer then theirs . but however , both of us agree , that minorennitas computanda est de momento in momentum . to conclude then ( my lords ) sure that opinion in all contraversies should be followed , which may do good , and can do no harm ; and that is to be reprobated , which can do harm , and is not necessar towards the doing what is just . but so it is , that not to restore a minor in such cases as these , may , and will necessarily destroy all minors , who may be over-reached , and cannot be repon'd , because of such oaths ; whereas , such as contract with them , can suffer nothing by such reductions ; for , either the minors with whom they contract , are laes'd , and then they will not be restor'd , and therefore , such as contract with them cannot be prejudg'd : but if they can make it appear that they are prejudged , it will necessarily follow , that the minor is not laes'd , and so the contract will not be lyable to reduction ; and thus these oaths will infallibly prove to be either unnecessar , or unjust . this cause came not to a debate . against forfeitures in absence . xiv . pleading . my lord chancellour , we have subjected to our consideration , an overture , which ought to be seconded by very convincing arguments , before we pass it into a law , seing it innovats a custom , which is as old as our kingdom , and older then our positive laws . and customes , like men , may be thought to have had excellent constitutions , when they last long ; and this act , if past , seems to infer the greatest hazard upon the two highest of our concerns , for such are our lives and fortunes . the old inviolable custom of scotland was , that no probation could be led against absents , either in treason , or any other crime , in any court , save the parliament ; but the only certification in all criminal letters , was the being denunced fugitives ( or out-law'd as the english speak ) which custom hath maintained it self for many hundreds of years , by its own reasonablenesse , without the necessity of being fenced with any other authority : and albeit the parliament did reserve to themselves , a liberty to proceed against traitours , in case of absence , yet they never granted that to any other court ; whereby it clearly appears , that our predecessors have thought that power incommunicable to all such as were not legislators , that procedure being rather a priviledged transgression , then an execution of the law. but it is now craved by this act , that in case of perduellion , and rising in armes against the prince , it shall be lawfull to the justices to lead probation against absents , and forfeit them accordingly ; which seems to me most inconvenient , for these reasons . . because the stiles in all courts are equivalent to fundamentals , and by an expresse act of parliament with us , stiles are not to be altered : but so it is , there is no stile in the justice court , bearing any other certification against absents , but the being denunced fugitives . . there was never any instances of it since the foundation of the justice court , and a negative practique being so old and uniform as this , is most binding , especially where all the conveniences , reasons and advantages which are now prest , were then obvious ; our predecessors were sure as loyal as we , and let us not be more cruel then they were . . the old custom was founded upon most convincing reasons ; for when persons are proceeded against in absence , they want the benefit of exculpation , for proving those just defences which are of so great consequence to them , and their posterity ; such as are , that though they were present upon the place , yet they were taken prisoners , and carried there , and were only going loose upon parroll , or fell accidentally amongst those rebells , who had gathered themselves together , or went there by a command from some of his majesties officers , for reclaiming those who were in armes , with many other defences which ( the party being absent ) none can know , and though known , none dare propone , it being a maxime in our law , that none dare propone any thing to defend one , who being pursued for treason is absent . another great disadvantage , under which these will fall who are pursued in absence , will be , that such witnesses may be received against them , as are lyable to just exceptions , and whom they would decline , if they were present ; which objections likewayes , none know , nor dare propone ; and it is likewayes very well known , that there are many witnesses , who will depone upon suggestion , very many things which they durst not assert , if they were confronted with the party against whom they were to depone , being sometimes overawed , and sometimes through pitty driven to speak only truth , when they look upon his countenance who is to live , or die by their depositions . upon which accompt , confrontation of witnesses and parties hath , in the civil law , been used as a successful remedy , and in ours the witnesses are ordain'd to look upon the pannells face when they depone . and albeit it may seem , that there is little hazard of a probation , where the case is so notour , as that of rising in armes ; yet , the mistake lyes in this , that though the rising in armes be notour , it may be it is not notour who were present , and the persons may be doubtfull , though not the thing it self . a third great inconvenience is , that whereas those who are present may by interrogators , restrict , or explain , what seem'd disadvantageous in the deposition of such as depone against them , they will by this innovation , forfeit this advantage amongst other losses . . no other nation receives concluding probation against absents ; many instances whereof might be given , but i shall satisfie my self with that of freisland , cited by sand. lib. . def . . praxis nostra habet ut criminosus si fuga se substraxerit , ad instantiam procuratoris generalis citetur , & si praefixa die non comparet , fiducialiter bona in contumaciae paenam annotantur : which is exactly our custom ; and by the civil law , tantum annotabantur bona rei non comparentis , ita ut si post annum venerit , & satis dederit de stando juri , ea recuperat si non , bona perdit non tamen de delicto habetur pro confesso , l. . & gloss . l. pen. & fin . ff . de requiren . reis . which title begins thus , divi-fratres rescripserunt ne quis absens puniatur , & hoc jure utimur , ne absentes damnentur . and hottoman tells us , that majestatis crimen in foro apud suum praetorem , perduellio vero à populo romano comitiis centuriatis in campo martis judicabatur ; which was much more reasonable , then our present overture , seing the greater the crime is , it should be the more solemnly , and slowly judg'd : from which procedure of the romans in perduellion , it seems our old practique of judging only absents in the matter of treason by a parliament hath taken its origine , for comitiae centuriae was to them , what a parliament is to us . i might here likewayes , alledge the authority of mathaeus , the learnedst civilian who ever wrote upon that subject , tit . . num . . whose words are , denique cum leges vetant absentem damnari , crimen perduellionis non excipiunt erit igitur & hic observandum , quod in aliis crimintbus , ut absens requirendus adnotetur , & bona obsignentur , publicentur denique , si intra annum non responderit . l. absentem , . c. de poems . l. absentem . . c. de accusat . l. ult . d. de requir . vel abs . damn . nam quanquam perduellio gravissimum crimen est , videndum tamen ne in occasionem sevitiae atque calumnie habeatur ; & pag. . dicit math. falsum esse absentem in hoc crimine posse damnari , nec ullo juris loco excipi crimen majestatis . dicitque supradictam extravagantem constitutionem , nullam authoritatem obtinere apud interpretes juris civilis . . by the . act. parl. . ia. . it is most justly statute , that all the probation should be led in presence of the pannal , and the assyze , which showes clearly , that our law hath been alwayes jealous of probation led in absence , and that probation is only to be led in presence . this innovation is recommended to us upon these reasons ; . that these who are contumacious , and flee from justice , should be in no better condition then those who appear , and they cannot complain of any of the foresaid disadvantages , seing these are occasioned by their own absence and fault . to which it is answered , that a person who is pursued for treason may be absent , not upon the accompt of any guilt , but because the citation never came to his knowledge ; as if he be at the time abroad in forraign countryes , where citations at the mercat-crosse of edinburgh , and peer and shore of leith ( which is all our law allowes ) seldom reach ; and sometimes the persons summoned , may be either sick , or in prison , and not be able to appear , or being lyable to other accusations , or fearing rather the present influence of some enemies , then their own guilt , dare not . for though treason , as the most comprehensive of all other crimes to us , be of all others most abominated , when proven ; yet , of all other crimes , most innocents are , by either malice or design oftest ensnared , upon pretext rather , then by the guilt of treason . for , as lipsius observes of the times wherein tacitus wrote , fraequentatae tunc temporis accusationes majestatis , unicum crimen eorum qui crimine vacabant . tertullian in his apol . sayes , non licere indefensos omnino damnari , & à carolo magno institutu est , lib. . cap. . ne quis absens in causa capitali damnetur . plutarch in alcibiades life , makes alcibiades to have given this prudent answer , to one who challenged him for not appearing to defend himself , cetera ( inquit ) omnia libenter , sed de capite meo , ne matri quidem , ne forte is , pro albo atrum calculum imprudenter injiciat . notat . & liberius pontifex romanus constantio imperatori , judicem non posse , absente reo , de crimine ejus judicare , nisi aut iniquus judex sit , aut privato odio saevit . hist. tripart . l. . cap. . seneca saith , lib. . de beneficiis , cap. . quantum existimes tormentum , etiamsi servatus fuero trepidasse , etiamsi absolutus fuero , causam dixisse . and as cicero very well observes , these who are accused before any judge for life , consider oftner what that judge may do , then what in justice he ought to do , oratione pro quintio . and thus we find , that athanasius and chrysostom would not appear at councils , to which they were cited , albeit they feared their judges more then their guilt , niceph. lib. . c. . it were therefore very hard in any of these cases , to forfeit an absent of his property , seing in these , innocence and absence are very compatible . nor doth his majesty suffer great losse by this , as is urged ; for if he who is pursued for treason compear not , he is denunced fugitive , and by that denunciation , his majesty possesses his whole estate , till he die , or compear ; and after death , he may be forfeit . the second argument is , by the . act. par. . ia. . traitours may be forfeit after their death , in which case they are absent , and want all the advantages above related . but to this the answer is , that the law is so just , and mercifull , that after a person is denunced fugitive in the case of treason , it allowes him all the dayes of his life to purge his contumacy , by appearing to reclaim his innocence ; and it never dispaires of the one , till the other be elapsed : and when it proceeds against any man to forfeiture after his death , it ordains the nearest of kin to be called to exculpat him , by proponing defences , or objections against the witnesses , and for doing every thing els which is usual in such cases , or which might have been done by the defunct himself , whereas he who is pursued in his own lifetime , cannot defend after that manner , as said is . after death likewayes , death it self , which is the greatest half of the punishment , is over , and there is not so great hazard , as there is in his case , who is forfeit dureing life , who is by that sentence ( without any possibility of hearing ) execute immediatly upon his being apprehended . after death also , malice , and design ordinarily ceases , so that the errors or prejudices of either pursuer or witnesse are not so much to be feared . the third argument is , that probation may perish in the mean time , if it cannot be received till after death . to which it is answered , . that this argument , aut nihil , aut nimium probat ; for , upon this account , pursutes should be sustain'd for all other absents , this prejudice being common to all : but , . it is safer , that a just probation should perish , then that a suspected one should be received ; and this one inconven●ence should not weigh down the many , which are laid in the ballance of the other side . parliaments are ordinar , and necessa●y a●t●r publick rebellions , wherein that horrid crime may receive its legal , as well as its just punishment ; or if they meet not , this may be otherwayes remedied ; for , probation may be led ad futuram rei memoriam , though the party be absent , reserving to him all his other defences , by which the kings right may be preserved , and the lieges rights not prejudged , and of all probations , that can least perish , which is to be led in the case of publick rising in armes . the fourth argument is , that the civil law admits forfeiture in absence , in the case of perduellion ( for so the common law names that kind of treason which is committed against the prince , or state ) and our criminal law being founded upon the civil law , ought in this , as in most other cases , to be squared by it . to which my answer is , that there is no warrand for that assertion from the law of the romans ; for , by that law , bona tantum annotabantur , as hath been said , in place whereof , banna hodie locum obtinent , which is equivalent to our denunciations . but because citations of the civil law , would resemble pedantry too much , i shall recommend to such as doubt this , the . verse , . chap. of the acts , where festus , a great roman lawyer , sure , ( as all their presidents of the provinces were ) tells us , that it is not the manner of the romans to deliver any man to die , before he who is the accused , have the accuser face to face , and be heard to defend himself concerning the crime laid against him . i confesse , that forfeiture in absence is allowed per extravag . henrici septimi ( and it is well called an extravagant constitution ) but that is accompted no part of the civil law , and if we follow its model , we ought to allow forfeiture in absence in all points of treason , as this doth ; and even that constitution acknowledges , that this was not allowed by the romans , and if it had , this constitution had been unnecessar , as it is now unreasonable . and i remember , that app. alex. in his third book of the civil warrs , relates an eloquent harrangue made by lucius piso , in favous of antonius , maintaining , that no person who is absent could be condemned , though upon probation , which was accordingly found by the roman senate . and though our parliaments use to proceed against absents , in case of treason ; yet , that is so seldom , and solemnly done , that there is little hazard to the pannals , and every man hath still some friends in so great a number , who may defend him ; nor is it probable that the parliament , who are the great curators of the common-wealth , and who are so much entrusted by us , as to have reposed upon them the legislative power , will prejudge any privat party ; remembering it may be their case one day , which is now the pannals : and that being a supream court , is not stinted to follow a probation which is suspect , though privat assizers might , for fear of an assize of error ; which makes a vast difference and disparity of reason . let us then ( my lord ) consult , the interest of our posterity , which is a generous kind of self-defence : for the italian proverb observes well , that it is better to live in countries which are barren , then in countries where there are rigid laws . let us guard against what is cruel , as we wish what is just ; and let us lawfully be carefull now of these our lives ; and fortunes , of which we have been too often unnecessarily anxious . god himself would not condemne adam , till he heard him , and though he knew the sins of sodom , and gomorrah , he would not pronunce sentence against them , till he went down and saw their abominations . let us not then make snares in place of laws , and whilest we study only to punish such as are traitors , let us not hazard the innocence of such as are loyal subjects . the learned reasons adduc'd for this overture , and the opinion of the session , prevail'd against this discourse ; and the parliament did ordain , that absents might be proceeded against in the justice-court , for publick rising in armes . for the late marquess of argyl , immediatly before his case was advised . xv. pleading . whether passive complyance in publick rebellions , be punishable as treason . my lord chancellor , i wish it may be the last misfortune of my noble client , that he should be now abandoned to the patronage of so weak a pleader as i am , whose unripenesse both in years and experience , may , and will take from me that confidence , and from your lordships that respect , which were requisit in an affair of this import . in our former debate , which is now closed , we contended from the principles of strict and municipal law : but here i shall endeavour to perswade your lordships , from the principles of equity , reason , conveniency and the custom of nations ; which is the more proper way of debate before a parliament , who make laws , but are not tyed by them , and who in making laws , consider what is fit and equitable , and then ordain what shall be law and justice ; and if your lordships consider strict law in this case , it were in vain for the loyalest subjects , who liv'd in these three kingdoms during those late confusions and rebellions , to defend his own actions by that rule : for , since intercommuning with traitors , concealing of treason , and acknowledging their authority , are by strict law , in regular times , undenyable acts of treason , i am no more to debate abstractly my clients innocence as to these , for who amongst us did not share in that guilt ? all did pay sesse , all did raise summonds in the protectors name , we were all forc'd to be the idle witnesses of their treasons ; and therefore , i shall only contend , that in such irregular times as these were , wherein law it self was banisht with our prince , meer compliance can amount to no crime in him , and that as to this he lyes under no singular guilt ; especially , seing his majesty has , by a letter under his royal hand , declar'd , that he will not have his advocat insist against him , for what was done by him , or any els , preceeding the year , . ( in which time he was only an eminent actor ) having retired himself from all publick imployments under cromwels usurpation , being known for nothing all that time , but a sufferer , and being forc'd by self preservation to do those things for which he is now accused , which being undenyably acknowledged by all the nation , cannot but recommend these few particulars , which i am now to offer for him . complyance ( as the very word imports ) is only a passive connivance , et praesupponit crimen in suo esse hactenus constitutum ; and in law , when a multitude offend ( as in our case ) the contrivers , and such as were most active , are , and should only be punish'd , detrahendum est severitati ubi multorum hominum strages jacet : and therefore , this noble person being acknowledged to be none of the first plotters , nor having been singular amongst that vast multitude of complyers , cannot be brought in amongst such as ought to be punished . for , albeit where many may commit a crime , there the multitude of offenders should highten the punishment ; yet , where the crime is already commited collectively by a multitude , there the number of offenders takes off the guilt , and in such cases , none should be punished ( saith aflictus ) but in flagranti & recenti crimine ( or with rid hand , as our law terms it ) dum durat crimen , nec sine quorundam nece extingui potest seditio , or where the renewing of the crime is justly to be feared ; for punishments being of their own nature inflicted , not for what is past ( seing that cannot be remeeded ) but for example in the future , certainly where the rebellion is extinguished , and needs no more be feared , as in our case , ( god be praised ) it were cruelty to punish ordinar complyers . it is remarkable , that in the . . . acts of the . parliament of queen mary , such scots-men as did ride with english-men , even where her majesties authority stood in its integrity , are ordain'd only to be lyable for what skaith they did to scots men who served the country , and that they being charged , to leave assurance with english-men , and disobeying , should have no action againg true scots-men for any wrong done to them . if then such lenity was us'd , and such commiseration extended , to such as were involved in a publick opposition to lawfull and standing authority , and in a compliance with the english , who were at that time , born and sworn enemies both to this crown , and countrey ; what may such expect as complyed only when no visible authority was able to protect such , who were forc'd to comply , not out of any design to defend usurpation , but rather out of a design to preserve themselves for doing his majesty furder service ? and as in the body-natural , the ordinar rules of physick take no place , when there is a violent and universal conflagration of humors ; so the ordinar rules of law should have as little place in the body-politick , when a whole nation have run themselves head-long into a common distraction . to which purpose i cannot but represent to your lordship , that excellent law , made in the reign of henry the seventh of england , and with consent of that excellent prince , wherein it was enacted , that no subject should be guilty of treason , for obeying one who was called king , though known to be an usurper , because the people do there not rebell , but submit . necessity may likewise be adduc'd for extenuating this complyance , which is therefore said to have no law , because it is punished by none ; without complying at that time , no man could entertain his dear wife , or sweet children , this only kept men from starving , by it only men could preserve their ancient estates , and satisfie their debts , which in honour and conscience they were bound to pay , and without it , so eminent a person as the marquess of argyl , and so much eyed by these rebells , could not otherwise secure his life against the snares were dayly laid for it ; and so this complyance did in effect resolve in a self-defence , which inculpata tutela , seing it can exempt a man from murder , and these other crimes that are contrair to the law of nature , it should much more defend against the crime of treason , which is only punished , because it is destructive to the government of our superiours , and statutes of our country ; and since crimes are only punishable , because they destroy society and commerce , how can this complyance be punished , which was necessar for both these ? mans will is naturally so frail , and man because of that frailty so miserable a creature , that to punish even where his will is straight , were to add affliction to the afflicted , the want of this will defend mad men against paricide , and the degrees of this distinguisheth slaughter from murder ; and in the acts of parliament whereupon the lybel as to compliance is founded , it is requisite , that the compliance be voluntar , thus in the act , . parliament , ia. . it is statute , that no man will●ully receipt rebels , and by the . act , . par. ia. . these who apprehend not such as mis-represent the king , are as guilty as the leasing-makers , if it be in their power to apprehend them , as the act very well adds . likeas , by the . act , . par. ia. . the lieges are only prohibited to intercommune with such traitors as they might crub ; for that act , as it forbids all commerce with rebels , so it commands all the subjects to advertise his majesty of their residence , and to apprehend them ; whereby it is clear , that this last act is only to have vigour , when the authority of the soveraign stands in force , & per argumentum à contrario sensu , seems to excuse such as submit to traitors , when there is either nothing to be advertised , or when advertisments of that nature , are either imprestable , or at least unprofitable , as in our late troubles , at which time , the residence of these rebels was notour , and all correspondence betwixt the king and his people , was daily betrayed and intercepted . consonant to which , is that excellent law , l. . ff : de receptatoribus , where it is said , that ideo puniuntur receptatores , quia cum apprehendere potuerunt dimiserunt : and bald. ad l. delictis , ff . de noxal . act . is most expresse , that receptans rebelles , non voluntarie , sed coacte , quia sunt plures rebelles simul : & eos expellere non potest sine suo periculo , non punitur aliqua paena . thus likewise in the statutes of king william , cap. § . . it is said , pro posse suo malefactores ad justitiam adducent , & pro posse suo justitiarios terrae manu tenebunt . and § . . it is ordain'd , quod magistratus pro posse suo auxiliantes erunt domino regiad inquirendum malefactores , & ad vindictam de illis capiendam . by all which it is clear , that not only should complyance be voluntar before it be criminal , but that likewise it must be a complyance against lawfull authority , able to protect such as revolt from it . i remember in anno , . james gordoun being challenged for corresponding with alexander leith , and nathaniel gordoun , declared traitors for burning the house of frendraught , they were assoylzied , because the intercommuning challenged was not lybell'd to have been-voluntar , and thereafter the assize who assoilzied them , having been pursued for wilfull error for absolving as said is , they were likewise absolved from that process of error , in the which process , that same argument was urg'd , but not so strong in point of fact as in our case ; and because the design is that which differences the actions of men ( propositum crimina distinguit ) and seing designs being the hid acts of the mind , are only guessed at by the concomitant and exterior circumstances , i shall only intreat your lordship to consider these few presumptions , which being joyned , may in my apprehension , vindicat this noble person from the design of voluntar complyance . . he is descended from a stock of of predecessors , whose blood hath prescribed by an immemorial possession , the title of eminent loyalty , and that same law which presumes , that the blood and posterity of traitors is infected with a desire to revenge the just death of their predecessors , and an inclination to propagate their crimes , doth likewise presume loyalty and a desire to be thankfull , in the the children of such as have received great favours , and performed great services , to such as have been the benefactors . . these with whom he is said to comply , were known and avowed enemies to nobility , had quite exterminated in england , and begun to exterminat in scotland , all memory of nobility , and badges of honour ; so that in this complyance , he must be thought to have plotted against his own interest : nor can i see what advantage he could expect from a common-weath , which valued , nor preferr'd none but souldiers , a trade , which suited neither with his breeding , nor years . . they were enemies to presbyterian government , of which he has alwayes shewed himself so tenacious , and of all governments they did most abominat that one , for which he had exposed himself to so many hazards . . that usurper had never oblieged him neither by reward , nor complement . . he was sworn their enemy both in parliament and councel , and charity as well as law , presumes against perjury . . he was pursued by them most unjustly , both at councel of war , and elsewhere , and was known to have been hated extreamly by their commander in chief , for complyance with whom he is now challenged : by all which it is most improbable , that his lordship would have linked himself with that abominable crew of miscreants , by whom he might losse much , but gain nothing . his majesty hath recommended this case to be judg'd by your lordships , whom he knew the iniquity of these times did ( though without any cordial assent ) involve in the same guilt , and albeit it were a guilt , there will be hardly any found to cast the first stone at him ; and his majesty hath not delivered him up to be proceeded against , till by his act of indempnity ( granted even to such as were eminently engaged in the contrivance and execution of the most horrid plots , that were perpetrat against him ) he had first cast a copy to your lordships of that meek procedure which he allowes , and not till he had ( even notwithstanding of their compliance ) preferr'd some to be councellours , some to titles of honour , and many to employments of great trust. and were it not unjust , that he should suffer for acts of frailty ; when the ring-leaders , and malicious plotters pass unpunished ? and were it not unkindness to our countrey , to have it thought that we had subjects who deserved worse , then lambert , lintil , and others ? i shall to all this add , that the guilt charg'd upon this noble person , is such as was thought prudence in those who were most loyal , and this complyance was so customary , and so universal , that it was thought no more a crime , then the living in scotland was criminal : whereas in law , qui sequitur comunem errorem , non delinquit , & consuetudo facit actum de sua natur a punibilem impunibilem , & excusat à paena ordinaria , & extraordinaria , farin , quest. . de pen. temperandis . custom is a second nature , and example a second law , and he who obeys them , obeys quasi legem naturae , & patriae : and in all civil wars and uproars , especially where such have lasted for a considerable time , as in portugal , france , germany , &c. none have been punished for mingling with the multitude , if they did not pervert them . and if we consult the ancients , when justice and equity were not yet opprest by interest , and design , we will find , that julian the emperor having only punished the chief rebells , residui omnes abierunt innoxii , quos in certaminum rabiem necessitas aegerat , non voluntas . and themistius praises valens the emperor , because non paena dignos existimavit , qui bellum non suaserunt , sed qui abrepti sunt à morum impetu , & qui succubuerunt ei qui jam rerum potiri videbatur . and joseph . lib. . tells us , that in such universal rebellions , titus used only to punish the ring-leaders , unum criminis ducem puniebat reipsa , multitudinem vero , sola verborum increpatione , seditionum concitatores , & duces factionum dicuntur , l. . ff . quando appell . it is likewise universally received by the law of nations , that such as submit after universal rebellions , either upon conditions , or who put themselves in the mercy of their magistrats , ( as grotius doth most wisely observe , lib. . cap. . ) are still secure , and therefore , since the marquess did immediatly upon his majesties return , go to court , to attend his majesty amongst his other loyal subjects , judging from the dictats of his own conscience , that he was in the same case with your lordships his present judges , it were strange that he should fall , when others are in great multitudes pardoned , who fled out of a consciousness to their own guilt , especially since he offered to prove , that he testified to many hundreds during his majesties absence , a deep sense of that misfortune , and an absolute aversion from that present usurpation ; and that he assisted his majesties friends , both with money and advice : and who would think , that in equity he ought to dye , by these whom he wish'd restor'd , and for which restoration , he prayed daily in his family ; and die for complying with those , whose ruine he beg'd daily upon his knees ? and though he did not joyn with some who were commissionated by his majesty , yet that proceeded not in him , more then in others , from any unkindnesse to the cause which he alwayes allowed , as can be prov'd both by themselves and others , but from a perswasion he had , that such courses as they took , would ruine the design which was proposed ; and any thing he did in opposition to them , was to defend himself and his poor countrey , against injuries , which were designed against him upon privat quarrels , as he still offered to prove . if we consider that same interest of nations , for which treason is punishable , we will find it unfit to punish ordinar complyers after a tumult is quieted ; for if every man that were involv'd in the guilt , did think that he were punishable , all would be forc'd pertinaciously to continue the rebellion they had begun , and to expect from successe only , that impunity which the law denyed : and thus your lordships should make all future rebellions to be both cruel , and perpetual . i come now to the probation adduced by his majesties advocat , for proving this compliance , and in order thereto , i shall lay before your lordships these following considerations ; . that the weaker the relevancy is , the probation should be proportionably the stronger , gravatus in uno , levandus in alio . . that in criminals , probation should be very convincing . . the more illustrious the pannel is , the proof should be so much the more pungent , because the law presumes noble persons less inclin'd to commit crimes then others . . where there is no penury of witnesses , probation should be so much the clearer , because the law presumes that all is known , which can be known : but so it is in this case , sixty witnesses have been led ( albeit our law allowes only in criminals ) and a long time hath been taken , and many invitations given to all persons , in all corners , to come and depone , and it is believed by most of these silly persons , that it will be most acceptable to his majesty , and may procure a reward to themselves , that they depone against his lordship ; which remembers me of these slaves in juvenal , who at sejanus fall , invited one another to offer indignities to his dead body , dum jacet in ripa calcemus caesaris hostem . . the law requires in these attrocious crimes , witnesses omni exceptioni majores , and these are in law expon'd to be such as the jealoufie of the greatest enemy needs not suspect ; whereas most of all the witnesses adduced , are either the servants of such as have been debarred themselves from witnessing , for fear of partiality , or the usurpers souldiers , who have so oft foresworn solemnly their alledgeance to their prince , that no judge can rely upon their depositions ; for it is presumable , that semel perjurus , will be semper perjurus : and albeit his majesty , by his indempnity , hath vail'd their crimes , yet he hath not taken them away , as is clear , per 〈◊〉 . ffin . c. de generali abolitione ; the excellent words run thus , indulgentia ( patres conscripti ) quos liberat , not at , nec infamiam criminis toll it , sed paenae gratiam facit ; whence i argue , that infamous persons cannot be witnesses , but so it is , that perjured persons ( non abstante amnestia & remissione ) are infamous by the foresaid law ; the criminal registers likewise tells us , that one who had been condemned for forging of false writes , was refused to be received as a witness in frendraughts process , albeit he had obtained a remission ; and certainly , perjury in the crime of treason ( whereof these soudiers are guilty ) is a more odious crime , then that of forging of false writes . . i hope your lordships will consider , that most of what these witnesses have deponed , are speeches , which the best of men may have forgot , after so long a time , and in a time when both men and manners have been much confounded , by the strangeness and number of interveening accidents : most of these witnesses have deponed upon that which fell under sense , and so have acted rather the parts of judges , then witnesses . thus some depones , that the marquess's boats did bring the english up lochfine , and that they could not have got up without his assistance , which last part , as it is negative , so is an act of the judgement , and not the object of any exterior sense , and they presume they had an order from the marquess , because else they durst not have gone , and is not this to imagine , and not to depone ? . most of them are persons , whom the d●ttay acknowledged to have been wronged by the marquess ; most of these poor persons who have deponed , were to my certain knowledge , so confounded by appearing before a parliament , and by interrogators , that they scarce knew what to answer . . not any two of these numerous witnesses concurr in their depositions , all vary , and most do clash , and are either vaccillantes , or singulares ; neither can the deposition of one witnesse , as to one particular circumstance of a crime , and the deposition of another as to another , be joyn'd for making up a clear probation , for there the judge is certified of neither of these circumstances , seeing one witness is none , whereas proving witnesses should be contestes ; and if a pannel were accused of moe crimes in one lybel , the deposition of one witness to prove one , and of another to prove another of these crimes , would not prove the lybel ; so neither can the singular deposition of two witnesses upon different points , prove one crime . such spelling is not lawfull in probation , and this is that which the doctors call singularitas diversificativa , which in law hinders conjunction in probationibus , as well as singularitas obstitativa , alexand. consil . . hippol. in sua praxi , § . diligenter num . . farin . tract . de oppos . contradicta . testium . . the law makes a difference , as to the probation betwixt perduellion , or open treason , in which they require most convincing probation , and in conspiracies or occult crimes , in which the rigour of probation is remitted , because the possibility of proving is much restricted , in respect of the clandestinesse wherewith such conspirations are managed ; and therefore , seing in this case the acts to be prov'd were committed publickly , such as joyning in open hostility with the usurpers , assisting at their proclamations , levying forces against his majesties generals ; certainly the probation should be most illative of what is alledged , and the provers should be omni exceptione majores . i must tell you my lords , that some have been so unjust to you , as to fear , that though the probation be not concluding , that yet ye will believe , to the great disadvantage of my noble client , the unsure deposition of that as foul , as wyde-mouthed witnesse , publick brute and common fame , which as it is more unstable then water , so like water it represents the straightest objects as crooked to our sense ; and that others of you retain still some of the old prejudices which our civil and intestine discords , did raise in you against him , during these late troubles : but i hope , generosity and conscience will easily restrain such unwarrantable principles , in persons who are by birth , or election , worthy to be supream judges of the kingdom of scotland . it is unmanly to destroy your enemy unarmed , but unchristian when you represent god as judges ; for then you endeavour to make him a murderer ; and in my judgment , he revenges himself but meanly , who to ruine his enemy , destroyes his own soul , and tashes his honour . my lords , as law oblieges you to absolve this noble person , so your interest should perswade you to it . what is now intented against him , may be intended against you ; and your sentence will make that a crime in all complyers , which was before but an error and a frailty ; your royal master may with our saviour then say to you , thou cruel servant , i will condemn thee out of thine own mouth : or , if your lordships be pardon'd , he may say to you as his master said to the other , sure i did pardon thee , why wast thou so cruel to thy fellow servant ? but , not only may this prove a snare to your lordships , but to your posterity . who in this kingdom can sleep securely this night , if this noble person be condemned for a complyance , since the act of indempnity is not yet past ? and albeit his majesties clemency be unparallel'd , yet it is hard to have our lives hung at a may-be , and whilst we have a sentence-condemnator standing against us . phalaris was burnt in his own bull : and it is remarkable , that he who first brought in the maiden , did himself suffer by it . i do therefore humbly beg , that since this process was intented upon informations given to his majesty , of the marquess's being very extraordinarily active for the usurpers , that your lordships would transmit the process as it now stands to his majesty , that thereby he may have a fair occasion to give a generous testimony of his clemency , that the people may be secured against all jealousies and fears , and that your lordships may be rescued from so invidious a tryal . for maevia , accused of witchcraft . xvi . pleading . i am not of their opinion , who deny that there are witches , though i think them not numerous ; and though i believe that some are suffer'd by providence , to the end that the being of spirits may not be deny'd ; yet i cannot think , that our saviour , who came to dispossesse the devil , who wrought moe miracles in his own time , upon possest persons , then upon any else , at whose first appearances the oracles grew dumb , and all the devils forsook their temples ; and who promised , john . that the princes of this world was now to be cast out , would yet suffer him to reign like a soveraign , as our fabulous representations would now perswade us . this person for whom i appear , stands endicted as a witch , upon several articles , the first whereof is , that she did lay on a disease upon a. b. by using a charm. . that she took it off by another . . that it is deponed by two penitent witches , that she and they did flee as doves to the meeting place of witches . as to the imposing or taking off diseases by charmes , i conceive it is undenyable , that there are many diseases whereof the cures , as well as the causes , are unknown to us ; nature is very subtile in its operations , and we very ignorant in our inquiries ; from the conjuncti●n of which two , arises the many errors and mistakes , we commit in our reflections upon the productions of nature : to differ then from one another , because of these errors , is sufferable , though to be regrated ; but to kill one another , because we cannot comprehend the reason of what each other do , is the effect of a terrible distraction ; and if this were allow'd , the most learned should still be in greatest danger , because they do oftimes find mysteries which astonish the ignorant ; and this should give occasion to the learned to forbear deep searches into natural mysteries , lest they should loss their life in gaining knowledge , and to persecute one another : for every physitian or mathematician , who is emulous of another , but cannot comprehend what his rival doth , would immediatly make him passe for a wizard . it is natural for men to think that to be above the reach of nature , which is above theirs . if this principle had taken place amongst our predecessors , who durst have us'd the adamant ? for certainly , nothing looks liker a charm , or spell , then to see a stone draw iron ; and men are become now so wise , as to laugh at these who burnt a bishop , for alledging the world was round , so blind and cruel a thing is ignorance : and if this principle , of believing nothing whereof we do not see a cause , were admitted , we may come to doubt , whether the curing of the kings evil by the touch of a monarch , may not be likewise called charming . this then being generally premised , to curb the over-forwardnesse of m●nkind , it is alledged , that the lybel is not relevant , in so far as it is founded upon my clients having threatned to do her neighbour an evil turn , that she went in to her house , and whispered something into her ear , whereupon she immediatly distracted : for , though threatning , when mischief followes , hath been too much laid weight upon by us , yet the law hath required , that many particulars should concurre , ere this be sustained , as that the person who threatned did ordinarily use to threaten , and that mischief constantly followed her threatnings , minae ejus quae jolita est minas exequi , that these threatnings appeared rather to be the product of a settled revenge , then of a boiling and airie choller , which doth oftimes , especially in women , occasion very inconsiderat extravagancies . . it is required , that the threatnings were specifick , as if she had promised that she should cause her distract , and the distraction accordingly followed : but it were too lax , to ascribe every accident to a general threatning , as is clear by dallrio , lib. . sect . . lawyers likewise consider , if the occasion of the quarrel was so great , as might have provockt to so a cruel a revenge as that which was taken ; whereas here the occasion was very mean , not exceeding two pence . and though all these do concurre , yet farin . quaest. . num . . acknowledges , that these are not sufficient to infer the crime of witchcraft , but only to load the person accused with a severe presumption , or to infer an arbitrary punishment ; and in the process against katharine oswald , the . of november , . those threatnings , though the effect followed , were not found sufficient to infer witchcraft , but only to be punishable tanquam crimen in suo genere , that is to say , as an unallowable and scandalous kind of railing . the second defence against this article is , that it is not relevant to lybel , that the malefice was occasioned by my client , except it were condescended by what means it was occasioned ; for in law , when i am said to have produced any effect , there must be a necessary contingency shewed betwixt what i did , and what followed , for else , the very looking upon her might have been said to have been a cause , and when si knesses are alledged to have been occasioned by witches , the ordinar signs given , are , that the disease be in it self such as cannot be occasioned by nature , as the vomiting up of nailes , glasses , and other extraordinar things ; that the person maleficiat do go in an instant , from one extremity to another ; as from being extreamly weak , to be immediatly extreamly strong ; or use extraordinar motions , which cannot be occasioned by nature , as d. autum . in his discourse of witchcraft doth most learnedly observe . but so it is , that neither of those can be observed here ; for distraction is a very natural disease , and has oftimes fallen upon a man in an instant , especially upon an excesse of fear ; and who knows , but this woman , who by her sex and humour , is known to be very fearfull , might have been so surprized at my clients coming into her , after the threatning , that this excesse of fear might have thrown her into that distraction , under which she now labours ; and yet my client might have had no influence upon her as the cause , but as the occasion only of this her distemper . all conclusions in criminal cases should be very clearly inferr'd , since the crime is so improbable , and the conclusion so severe . and therefore , lawyers are of opinion , that if the inferences be not demonstrative , and undenyable , conclusio semper debet sequi debiliorem partem , that which but may be , may not be , and lawyers do constantly conclude , that we must only conclude that ●n crimes to have been done , which could not but have been done . and who can say , that necessarily this was done by her here , which could not but occasion this distaction , and therefore , perkins , cap. . do's assert , that no malefice can be a sufficient ground to condemn a witch , except she either confess , o● that it be proven by two famous witnesses , that she used means that might have produc'd that effect . and though where charms and other means expressly discharg'd are used , these unlawful means are by the judge repute , as if these means might have been effectual , in odium illiciti , and that the users have only themselves to blame in that case , who would use these charms , spells , and incantations , of which the law is jealous : yet where none of these are used , but a simple whisper , the effect in that case cannot be said to have flow'd from it , nor do's any severe presumption lye against a thing that is ordinar . and bodin . lib. . concludes , that in capitali judicio ex praesumpti onibus veneficas non esse condemnandas● , ut si sagae deprehendantur egredientes ex ovili cum ossibus , bufonibus , vel aliis instrumentis magicis instructae licet oves statim moriantur . all conclusions must be necessar or presumptive ; but so it is , that this conclusion is not necessar , since all these remedies might have been used , and yet the user might have been innocent : for , a necessar conclusion is à qua veritas abesse non p●test ; and if this inference be only presumptive , it is as undenyable , that witchcraft cannot be inferr'd from such a presumptive conclusion , as is clear by farin . quaest . . num . . perkins , bodin and others above-cited : and if it were otherwise , judges might condemn upon guessing or malice , and so moe would be in danger to die by injustice , then by witchcraft ; and may you not as well punish such as stay bleeding by applying a stone , or who prevent abortions by gliding the woman with a belt , now much in fashon ? and therefore it is very remarkable , that by the . act , . par. queen mary , witchcraft , sorcery , negromancy , and sicklike arts for abusing the people , are only forbiden ; nor can it be subsumed that any art , or exterior thing , whereby people use to be abused , were here used , and therefore this article cannot be said to fall under the prohibition of the act of parliament . the second article is , that my client did cure the said person whom she had formerly distracted , by ●pplying a plantane leaf to the left side of her head ; and binding a paper to her wrest , upon which was write the name of jesus . which being done by her who was an ignorant person , being done to the person who formerly distracted upon her whisper , and the cure being perfected in lesse time , then nature uses to take for composing such gerneral and horrid distempers , might necessarily infer , that this cure was performed by witchcraft . against which article , it is alledged , that the conclusion here should demonstrat , that necessarily this cure was performed by no natural cause , whereas the mean here used , viz. the applying of a plantane leaf , is a natural thing , and may cure in a natural way , it being known that there is nothing so cold as a plantane leaf , and so it might have been very fit for curing a distraction , which is the most malignant and burning of all feaverish distempers . or who knows , but that this distraction having been occasioned by the excessive fear she had of my clients revenge , but that how soon she was reconciled to her , and that she had by the same strength of fancy which made her sick , conceived that she would likewise restore her against that sicknesse , her distraction might have abaited with her fear ? . the law-givers having punished crimes , because these crimes are destructive to their subjects , and common-wealth , have for the same reason only punished such indifferent inchantments , as did either kill men , or ensnare them to unlawfull lusts , but not those arts , where the health of man and the fruits of the ground were secured , against diseases and tempests , as is clear , per l. . cod. de malef. & math. eorum est scientia punienda , & severissimis merito legibus vindicanda , qui magicis accincti artibus , aut contra hominum moliti salutem , aut pudicos ad libidinem delexisse animos detegentur , nullis vero criminationibus implicanda sunt remedia , humanis quesita corporibus , aut aggrestibus locis , ne maturis vindemiis metuerentur imbres , aut ventis grandinisque lapidatione quaterentur : innocenter adhibita suffragia , quibus unius cujusque salus , aut existimatio lederetur , sed quorum proficerent actus , ne divina munera & labores hominum sternerentur . which law being a statute made by constantine , who was a christian emperor , being conceived in so devote terms , and insert by justinian , who was a most christian prince , amongst his own laws , cannot but be a law very ●it to be observed in a christian common-wealth . and though it be allegded , that this constitution was abrogat by leo , nov . . yet , it is very remarkable , that this constitution made by leo , is not insert in the basilicks , so that it seems it has been thereafter abrogated . it is not probable , that the devil , who is a constant enemy to mankind , would employ himself for their advantage ; and the name of jesus being used , so much respect ought to be had to it , that the user should not be punished with death , except it could be clearly proved otherwise , that she had received this charm from the devil ; in which case , the author , and not the thing , occasions the punishment , or else , if she had been discharged by the church , or any judicatory , to use that cure , as that which was in it self dangerous ; but to burn a poor ignorant woman , who knew not that to be evil which she used , were to make ignorance become witch-craft , and our selves more criminal , then the person we would condemn . and all these laws and citations which can be brought to prove , that magical incantations are punishable by death , though imployed for the well-fare of mankind , must be interpret so , as to relate only to some of these unlawful cases above related . and i admire , that those who inveigh so much against this constitution of constantine , have never taken notice , that these charms are only allowed , even for the wellfare of man and beast , ubi sunt innocenter adhibita suffragia , where devotion was used , though erroniously , as in this case . and we know , that a whole family in spain pretend to be able to cure diseases by the toutch , as being descended from st. katharine , and are therefore called , saludadores ; and that another family in france , who alledge they are descended from st hubert , do cure such as are bitten by mad dogs , and yet neither of these are punished by any law , since they ascribe their cures to devotion : and there are but few men who have travelled any where , but use some charm or other , out of innocence or railery ; and to burn these , or the common people , who think they may follow their example , were an act of great cruelty . and since the cross is allowed by the canonists to be applyed to any part of the body , per c. non licet . . quaest . i see not why the name of jesus may not be applyed , in the same way : nor can i think that the devil would allow the using of that sacred name at which he is forc'd to tremble , and by the very naming whereof , all ecclesiastick histories tell us , that the devil has been dispossest , and therefore , ghirland . de sortil . num . . gives it as a general rule , that ubi alia nomina ignota ultra dei nomina inveniuntur , tunc superstitiosa dici possunt & ita puniri . cassiodorus relates , that multis efficax remedium fuit , trina recitatio versiculi , psal. . dirupisti vincula mea , &c. and bartholinus in his anatomy , defends , that these verses repeated with a loud voice in the ear of one affected with the epilepsie , will cure him , gaspar fert mirham , thus melchior , balthasar aurum , haec tria . qui secum portabit nomina regum , solvitur à morbo , christi pietate caduco . and though some have disallowed even pious sentences , or names , when joyned to superstitious circumstances , as when they are only to be writ upon parchment , and cut too in such a figure , or bound by so many threeds only , yet to condemn the users as witches , when they are used simply , as here , seems to be the other extream . in things that are abstruse and dubious , the law should still favour that which tends to the good of the common-wealth : yea , and though it sometimes may punish charms , when used to the disadvantage of men , though it know them not certainly to be unlawfull ; yet , it doth not follow , that it should punish that which may tend to their advantage , except they know it to be certainly unlawfull . and though our act of parliament punishes such as seek help by unlawfull meanes of sorcerers , or necromancers , yet they must first be prov'd to be sorcerers , or necromancers , who make a trade of abusing the people , as that statute sayes , which cannot be drawn at all to a dubious cure used in one case , and by the application of natural means ; and therefore , though drummond was burnt as a witch , albeit he had never committed any malefice , but had only cured such as were diseased , yet having in a long habit and tract of time , abused the people , and used spells and incantations , which had no relation at all to devotion ; and having continued that trade , albeit he was expresly discharged , his case was very far different from this , and deserved a far more severe punishment . the same may be likewise answered to the condemnatory sentence pronunced against john burgh , who was convicted of witchcraft in anno , . for pretending to cure all diseases , by throwing into water an unequal number of pieces of mony , and sprinkling the patients with the water ; so that it may be justly said , that these died rather for being publick cheats & falsarii , then for being witches , & venefici . upon which account ars pauliana also is punishable , by which some cheats pretend to cure diseases , by spells and pious characters , revealed ( as they pretend ) to s. paul , when he was carryed up to the third heavens ; for , here the foundation makes the cures known to be cheats . i might likewise alledge here , that it is against the confest principles of all criminal●sts , that una venefica non potest esse ligans & solvens in eodem morbo , cannot both put on , and take off a disease ; for , it seems that the devil thinks , that it were too much to bestow such favours upon one of his favourits , so that he is juster then those , who affect plurality of benefices ; or else he thinks it would lessen too much the esteem of those faculties , if one could exerce both ; or else it is not probable , that she who had the malice to lay on the disease , would condescend to serve in the taking it off . but however , i find much weight hath been laid upon this principle , by those who did debate margaret hutchesons process , and so let it have its weight . the third article of my clients endictment is , that it is deponed by two dying and penitent witches ; that she flew like a dove with them to their meeting places . this article seems to me very ridiculous ; for i might debate , that the devil cannot carry witches bodily , as luther , melanchton , alciat , vairus and others assert , because it is not probable , that god would allow him the permission constantly to work this miracle , in carrying persons to a publick place , where they joyn in blaspheming his name , and scorning his church . nor is it proper either , to the nature of heavy bodies to flee in the air , nor to devils who are spirits , and have no armes , nor other means of carrying their bodies : but i may confidently assert , that he cannot transform a woman into the shape of a dove , that being impossible ; for how can the soul of woman inform and actuat the body of a dove , these requiring diverse organs , and administrations ; and to believe such transmutations , is expresly declared heresie by the canon law , and to deserve excommunication , cap. episcopi , . quaest . . and is condemned by st. augustin , lib. . de civit . dei , delrio lib. . quest . . girland . § . . and though the scripture tells us , that nebuchadnazor was transformed from a man to a beast by god , yet it follows not that the devil hath that power ; or as some divines assert , he did but walk , feed , and cry like a beast , and had brutish thoughts . we must then conclude , that these confessions of witches , who affirm , that they have been transformed into beasts , is but an illusion of the fancy , wrought by the devil upon their melancholy brains , whilst they sleep ; and this we may the rather believe , because it hath been oft seen , that some of these confessors were seen to be lying still in the room when they awak'd , and told where , and in what shapes they had travell'd many miles : nor is this illusion impossible to be effectu●ted by the devil , who can imitate nature , and corrupt the humours , since melancholly doth ordinarily perswade men , that they are wolves ( licanthropi ) dogs , and other beasts . since then these confessions are but the effects of melancholy , it follows necessarily , that the depositions of these two witches amounts to no more , but that they dreamed that my client was there : and were it not a horrid thing , to condemn innocent persons upon meer dreams , as is concluded by frans , ponzan . tract , de lamiis . cap. . num . . sunt illusae , ergo non est standum ipsorum confessionibus : confessio enim haec deficit in sui● principiis , & est contra naturam , & ita impossibilis . i confess , that such confessions may be a ground to condemn the confessors , because though they were not actually where they dream'd , at these meetings , yet it infers that they had a desire to be there , and consented to the worship , and believed that transformation to have been in the devils power ; but all these are but personal guilts in the confessors , and cannot reach others . and besides this , it is very clear , that the depositions even of confessing and penitent witches , are no concluding probation ; for they are sociae criminis , and such are not to be believed , they are infamous persons , and such ought not to be believed ; and they can give no sufficient causa scientiae and reason of their knowledge , the want of which doth in law enervat the deposition of a witness : and with us , the depositions of dying witches were repell'd , in the case of alison jolly , pen. oct. . divines , whose punishments reach no furder then ecclesiastick censure , may punish not only certain guilt , but scandal ; yet lawyers , being to inflict so severe a punishment as bu●ning , and loss of all their moveable estate , should not punish but what they know infallibly to be a real guilt , nor should they punish that guilt , till it be convincingly prov'd . for , though this woman were guilty , yet if she be so , she will suffer by the sting of her conscience here , and will be reserv'd for a greater fire hereafter , then you can ordain for her ; whereas if she be innocent , your sentence cannot be reformed . and why should you take pains to augment the number of the devils servants in the eyes of the world ? nor doth the civil law punish alwayes what divines condemn ; for thus , though it be murder by the divine law to kill a wife taken in the act of adultery , yet the civil law allowes it : and though it be unlawfull by that law to cheat our neighbour in buying or selling , yet the civil law allowes all such bargains , except the cheat amount to the value of the half . thus , the one of the laws respecting mainly the good of souls , and the other the good of commerce , as they have different ends , so they take different measures ; and therefore it is , that politick laws , have allowed cures even by suspected means ; which principle is also allowed by bartol . salicet . azo : and others , ad dict . l. . and even according to the principles laid down by divines , except there were a paction prov'd , or confest , all remedies should rather be ascribed to nature , then to witchcraft . consider how much fancy does influence ordinar judges in the trial of this crime , for none now labour under any extraordinar disease , but it is instantly said to come by witch-craft , and then the next old deform'd or envyed woman is presently charged with it ; from this ariseth a confused noise of her guilt , called diffamatio by lawyers , who make it a ground for seizure , upon which she being apprehended is imprisoned , starved , kept from sleep , and oft times tortured : to free themselves from which , they must confess ; and having confest , imagine they dare not thereafter retreat . and then judges allow themselves too much liberty , in condemning such as are accused of this crime , because they conclude they cannot be severe enough to the enemies of god ; and assisers are affraid to suffer such to escape as are remitted to them , lest they let loose an enraged wizard in their neighbour-hood . and thus poor innocents die in multitudes by an unworthy martyredom , and burning comes in fashion ; upon which account i cannot but recommend to your lordships serious consideration , that excellent passage of a learned lawyer , baldwinus , ad § item lex cornelia jnstit : de publ . ju● . sed quo gravius , & ab hominis ingenio magis alienum est hoc malum , co major adhibenda est cautio , ne quis ejus praetextu ab adversariis temere obruatur , facile enim hic quid vis confingere potest ingeniosa simultas , ut & multitudinem credulam statim emoviat , & judices irritet adversus eum quem cum demonibus rem habere mentietur . ante annos sexaginta , sensit infoelix nostra patria , magno suo malo , hujusce generis calumniis , magna erat waldentium mentio , quos adversarii jactabant nesci● quid commertii habere cum innumeris spiritibus , hujus criminis praetextu optimi quique statim opprimebantur , sedtandem senatus parisiensis , causa cognita , vidit meras esse sycophantias & infoelices reos liberavit . for titius , accused before the secret council for beating his wife . xvii . pleading . as nothing but the last degree of passion could have provockt my client to correct this unfortunat woman , so no creature which doth not feel his grief , can expresse the reasons , which forced him to it . nor could the fear of punishment , if it were not joyned with the sense of honour , move him to lay open before your lordships , the sad story of these persecutions he has for seven years suffered , and the dishonourable secrets of his own family , which during all that time , he has laboured to conceal . nor can i ( my lords ) but regrate , that i should be forced to lead your reflections into my clients house , and to shew you there a woman burning , not with fl●mes of love , but revenge ; embracing her husband , not out of kindnesse , but to throw him into the fire ; watching him in his sleep , but that she might even disturb him in his rest ; inviting his friends to her house , but that she might highten his infamy , in letting them hear her rail against him : and all this done , not for a day , or under the excuses of passion , but for seven whole years ; nor done so passingly , as that he could entertain any hopes of her reconciliation to allay his grief ; but she begun to torment him the next day after the marriage , beating him with her slipper , so that only his marriage wanted its honey-moneth , and so malitious was her humour , that she could not bridle it for one day . and these affronts were dayly continued , most deliberatly , and owned after all the remonstrances her friends could make for reclaiming her , at which occasions she used to speak kindly of nothing to him or them , but her passions , justifying her lying of him as wit , her railing against him as eloquence , her revenge as justice , and her obdurednesse as constancy . this being the person against whom i am to plead , i am oblieged to give your lordships some character of him for whom i appear , who was not only born a gentleman , but by being a souldier , has made himself so , and by both these qualities , has so strong an aversion against beating any woman , that the great respect he had for that lovely sex , made this pursuer , after ten years intimat acquaintance , choose him for her husband ; and for seven years , he hath not only suffered , but concealed his wrongs , to that depth , that his hair hath by grief changed its colour twice , the strength of nature , and grief , overcoming each other by their several turns . nor doth he think himself concerned to answer his wifes calumnious reproaching him , as having been her husbands servant ; for it is most true , that after he lost his estate in his majesties service , her first husband choos'd him for his friend , and after his death , she choosed him for a husband ; which shews , that he had some worthy qualities about him , which were able to supply that great want , the want of riches ; and is it not clear , that when women begin to complain of so sacred a relation , they will make faults where they cannot find them ? and these wives who would divulge what is true , would invent what is false . i confesse ( my lords ) that there is very much due to that excellent sex , when they are , what they ought to be ; but our love to wine , must not hinder us to call it vinegar when it corrupts ; nor should we flatter tyrants , because we love monarchies . but judges must look more to justice , then complement ; and therefore , i must beg pardon to alledge for my client , that he cannot be punished for beating his wife , because , the wife is by law under the power and authority of her husband , which subjection is not only the punishment of her sin , nor will all this power repair to man , the losse he had by the injury done him when he got this power ; but this power is put in the husbands hands , for the good , not only of the common-wealth , but of the women themselves : as to the common wealth , it was fit , that in every family the husband should be empowered to correct the extravagancies of his wife , and not to bring them before the judge , and in publick , this would have divided families , raised publick scandals , and many will be content to receive correction in privat , who would never be reconciled after a publick correction . and as to the women themselves , it was fit , that she being the weaker vessell , a creature naturally passionat , and wanting experience , should therefore be governed by , and subject to , her husband ; and as the head may resolve to chastise or mortifie any part of the body , when it thinks that discipline will tend to the general advantage of the body ; so may the husband , whom the scripture calls the head of the wife , correct the wife , when that correction may tend to the advantage of the family . let us but look back upon the first ages of the world , and we will find that the husband had generally power of life and death over their wives , even amongst the best of men , the romans , and thus plin. lib. . cap. . reports , that egnatius mecennius kill'd his wife , for having drunk too much wine , and that her death was not enquired into , as that which the law then allowed . and caesar tells us , lib. . that the germans in uxores , sicut in liberos , vitae necisque potestatem habebant . and till this day , the southern nations ( whose wits ripen more then ours , as nearer the sun ) have still the same power continued to them , by which the women loss litle , for it keeps them from adventuring upon these extravagancies , for which our complementing nations hate their wives , which to a kind wife , should be worse then death . but if these laws think this power of life and death fit for the husband , it should at least teach us to bestow upon him the power of correction , for which i only plead ; which power of correction , is by bonaventur said to be allowed them by the law of nations , . sentent . distinct . . masuer . tit . de possess . § . item maritus . by the canon law , the wife is declared to be more in the power of the husband , then of her father , can . sicut alterius . quaest . . and that the husband may imprison her , or keep her in the stocks , can placuit . . quaest . . and if we consider our law , we will find , that husbands have the same power over their wives , that a father hath over his child , c. . leg . burg . which law saith , that he should correct her , as not knowand what she should do , and as a bairn within age , seing she is not at her own liberty . and as the council would not hear a child complaining that his father had beat him , so neither should they hear a wife . we have also an express statute , . dav. chap. . wherein it is appointed , that no accusation shall be received against a man for having occasioned the death of his wife , except it be notoriously known , that he gave her wounds whereof she dyed ; by which it is necessarily implyed , that he is not punishable , nor cannot be accused for any wounds given which were not mortal ; where likewise there is a decision of the said king david , related in thesete●ms . in the time of king david , a case happened in this manner ; an man of good fame gave to his wife , descended of great blood , an blow with his hand , of good zeal and intention to correct her , and she being angry with her husband after that day , would not for no mans request , eat nor drink till she deceased , and entered in the way of all flesh . the friends of the woman accused the husband for the slaughter of his wife : and because it was notour and manifest that he did not slae her , nor gave her no wound of the whilk she died , but gave her an blow with his hand , to teach and correct her , and also untill the time of her death loved her , and entreated her as a husband well affectionat to his wife ; the king pronounced him clean and quit , and thereanent made this law. but , i find it is answered by the wifes advocats ( who can better maintain , then they could suffer what she has done ) that though the laws of other ages and nations , did , and do allow this power to the husband ; yet , our present customs , as well as our inclinations , hate that stretch'd and ungentle power : and though our law did allow some power to the husband for correcting his wife ; yet , that power could not be extended to defend such violent courses as were here used , where the husband did hold her head to the fire till her face was burnt , and did thereafter beat her with a slipper . nor do any law or lawyers allow more then modica coercitio for her correction ; but such an excesse as this would be punishable in a father towards his child , or in a master towards his servant . to which answer the poor husband acquiesces as much as they , and by his patience and continued kindnesse , in spight of all these disgraces and affronts , he has testified more respect then the law could have commanded . but since it is acknowledged upon all hands , that the husband might have corrected his wife , and that he is only punishable for having exceeded the just measures which the law allows , i shall first relate the matter of fact , and shall then examine , if he did not proportion the punishment to the injury . after my clients wife had swore she would starve her self , if he would not renunce all her estate , he ( good man ) condescended to her extravagant desire ; but not satisfied with this , she swore she would kill him , if he did not leave the country : and finding that he came in at night , she beat him with her slipper , but finding he only smiled at this , she came running up to him with a knife in her hand , whereupon he threatned to hold her head to the fire , if she would not calm , and so took the knife from her . notwithstanding of all which , both kindnesse , and threats , she did a third time flee in his face , but at last , fearing his patience might not only prejudge himself , but her , he did take her and hold her face a little to the fire , but without any defign , save of terrifying her ; but she being strong , and malice supplying what strength her sex denyed her , wrestled out of his hands , and in wrestling , threw her self upon the fire , and burnt a little her own face . all which shall be proved by witnesses , who saw the whole tract of that unhappy bussle , for it was an aggravation of her guilt , that she used him thus publickly . this being the state of the case , i hear such as stand behind me swear , had she been mine , i had drowned her , or starved her , and i conjure your lordships to reflect what any man would have done in that case ; but i shall only debate , that this guilt deserved a more severe punishment , then what he inflicted . for , . in proportioning the punishment to the guilt , your lordships will be pleased to consider , that the husband never having punished her former extravagancies , was here to punish at once , all that she had formerly done , and if every offence deserved correction , ten thousand offences deserved one that was very great ; and if the law after it hath punished the first two small thefts , punishes the third with death , and after it hath punish'd breaking yards with small pecunial mulcts , maketh the third capital ; may not the hundreth offence in beating a husband , and laying snares for his life , deserve all done , where the former faults were also to be punished ? and since no judge could have refused to have burnt her in the cheeck for three such riots , sure the husband cannot be punished for punishing a hundreth at the same rate ; and i hope your lordships will imagine , that a husband who suffered so many affronts , would not have been too violent in punishing the last , and that she hath her self to blame , having contemned the warning given her by her husband , and in giving of which warning , it clearly appears , that he was master of his passion , and proceeded both kindly and judiciously ; or though he did deserve a punishment , yet by-past-sufferings , torments and affronts , may do more then satisfie her , for that one injury , of which she can only complain : and as in ballancing accounts , so in ballancing mutual crimes , we must not look to the debt and credit of one day , but considering all that either party can lay to one anothers charge , we must at the ballance only determine who owes most , and if that method be followed , then sure your lordships will find , that as injuries may be compensed amongst the parties themselves , in so far as concerns their privat interest , so here , my clients wife having been more guilty towards him a thousand times , then he can be said to have been towards her , though this riot were acknowledged , her interest ceases , and her complaint doth become thereby most unjust . though the law designs to restrain our vices , yet because it cannot root out our passions , it pitties them ; it employes its justice against our crimes , but its clemency against our passions : and so high did this clemency run in the roman law , that he who in passion kill'd his wife , being taken with her adulterer , was not punished as a murderer , qui impetu tractus doloris interfecerit : and the reason the law gives for remitting the crime is , cum difficillimum sit justum dolorem temperare , l. . ff . ad . l. jul . de . dult . and if any passion deserves pardon , it must in him who has bestowed pardons for seven years ; or if it may plead against any , it must be against her who raised injustly , the passion of which she complains . injuries from a wife are crimes ; and if injuries can justifie passion amongst strangers , much more can they do it in a husband . i hope your lordships will likewise consider , that self-defence is not only a priviledge introduced by law , but a duty imposed upon us by nature ; and without this , this world were nothing but a scaffold , and every man with whom we conversed , might prove an executioner . nor doth this self-defence only secure us when we kill such as would attacque our life , but it secures us likewise when we chastise such as would stain our honour ; for life without honour , is but as a dead carcass , when the soul is fled , or a king when he is dethroned . and since the law has p 〈…〉 lel'd life and honour in every thing , it is most just , that seing we may kill such as invad the one , we may at least chastise such as invad the other ; especially seing these who are here punished , have only themselves to blame , as the authors and occasions of all those accidents of which they complain : and therefore , my lords , i shall intreat you to figure to your selves , what a man could do , if his wife should constantly resolve to spit in his face when he were amongst strangers , or constantly awake him when he resolved to rest : were it not ridiculous to put the husband alwayes to complain to a judge in those cases ? and yet to suffer such injuries to be unpunished , were not only to make a man miserable , but to force him to an impertinent clemency , which might breed up his wife to an insufferable insolence . and if mean people , ( who wanting generosity and vertue , are curbed by nothing but awe and fear ) should come to know that the councill allowed such an indulgence to women , and that there were no place for the justest complants of injur'd husbands , what ruptures would this occasion in privat families , what numerable suits before your lordships , and how many separations betwixt husband and wife ? do then , my lords , by this decision , let the people see , that as vertuous and deserving women may expect the highest and purest respects imaginable , so such as shew themselves unworthy of these favours , may expect punishment answerable to their crimes . nor is it a small aggravation of their guilt , that they endeavour as far as in them lyes , to draw contempt and disgrace upon that amiable , and deserving sex. thus good women will be complemented , when they find they owe not the respect they get to the law only , but to their own merit , and unworthy women will find , they may expect a happier life by taming their own insolencies , and by living in concord with their husbands , then they can from their insolent , and outragious abusing of them . the counsel imprisoned the husband for one night . for charles robertson and his two sons . xviii . pleading . how far minors may be punished for crimes . . whether complices may be pursued before the principal party be found guilty . . whether socius criminis may be received in riots and lesser crimes . the crime for which my clients are accused , is , that in january , . the said charles robertsons brother and two sons did convocat the lieges , and throw down a house belonging to elizabeth rutherford , which they did at their fathers desire , or at least , that their father did ratihabit the same . against this indictment , it is alledged , that the two sons , the one being of the age of fourteen , and the other of fifteen , cannot go to the knowledge of an inqueist , for throwing down this house , since they offer to prove , that they were informed by their uncle , that this house belonged to their father , and that it was their fathers desire they should go along with him to throw it down ; for though minors may be punished for attrocious crimes , committed against the law of nature , such as murder , incest , &c. and to abstain from which , the youngest conscience doth advise : yet , such acts as cannot be known to be criminal , but by such as understand positive law , are not punished as criminal , but in such as are oblieged to understand that law. none will contravert , that the throwing down such a little house , not exceeding six pounds scots of value , and to which , they and all the countrey had heard their father pretend right , cannot be called a crime against the law of nature ; and it is only a crime in positive or municipal law , when it is done by such , as are oblieged at the time to understand they are doing an injury , and that the house belongs not to him , at whose command they are throwing it down , and these children were not oblieged to know this ; for since they are not in law oblieged to understand their own rights , till they be majors , much lesse are they oblieged to understand the rights of other men ; and in this case the undestanding the matter of rights , is that only which infers the crime , for if the father had right , this had been no crime in him , nor them . i am sure , there is a great distinction betwixt acts , which are of their own nature indifferent , such as throwing down of houses , taking men prisoners , &c. and these which are of their own nature vitious , and criminal , and need no extrinsick thing to clear that they are so , such as murder , and robbery ; the first doth require the knowledge of something that is extrinsick to the act which is done ; nor is the guilt infer'd but by reasoning , and judgement , and therefore that guilt should not fall upon minors , except they are dolosi , and are presumed to have done it intentionally and upon design , and how can design be presumed in these minors , since the committing this act did not take its rise from them , but from their uncle , and father , and they were to gain nothing to themselves , immediatly by it ? nor can it be imagined , why the law will for want of understanding , lessen the punishment in the most attrocious crimes , such as witchcraft , murder , &c. in such as are thriteen years of age , if it will not remit absolutely the guilt , in such cases as these , where the guilt was neither palpable ; nor the prejudice great . and if minors be to be restored adversus delictum in any case , as is clear they are , they ought to be restored against this , where the guilt doth consist in a punctilio or nicety of law , such as , that though the father had right to the house , yet he could not have thrown it down by his own authority ; a principle which few countrey men understand , when they have reached twenty one years , si delictum fuerit commissum sine dolo potest minor juvari ope restitutionis in integrum , etiam ad hoc ut à totapaena excusetur , clar. quaest . . & anan . in cap. . num . . de delict . puer . nor can i see a reason why crimes by the unanimous opinion of lawyers are said not to be punishable in minors when they are perpetrat non committendo , sed omittendo , if it be not because omissions are juris , and fall not under sense , and proceed from a weaknesse of the judgement ; but yet i think the former distinction more just , since omissions of what nature requires , should bind them , but nothing should bind them which proceeds from a weaknesse in judgement , since law allowes minors to have no judgement . but whatever be alledged against other minors , yet these having obey'd their father , in an act which was of its own nature indifferent , they cannot be punished for the guilt though he may , for that were to make poor children unhappy , in subjecting them to double punishments , for if they obeyed not their father , they could not escape their fathers anger , or if they did obey , they fall under the laws revenge . and it were very unjust , that the law which has subjected them to the power of their father , should not secure them when they obey that power to which it has subjected them . and upon the other hand , it would lessen much that power which the law hath taken so much pains to establish in the persons of fathers , and masters , over their children , and servants , if it gave them occasion to debate their commands ; and though a son , or a servant , are not obliegd to obey their father or master , in things palpably attrocious , and wicked ; yet , where the thing commanded is not necessarily , and intrinsecally unjust , they should either obey there , or no where ; and what a great prejudice were it to the common-wealth , if a son or servant should refuse to assist , in bringing back cattle , which others were driving away , to labour land , or assist poindings , or even throw down houses at their father , or masters desire , because they might pretend his right were not sufficient ? and so the father and master should be still oblieged to give an account to his son or servant , of his right and title upon all occasions , and his commands , which require oftimes a speedy execution , should be delayed in the interim . to prevent all which , the law hath for the good of the common-wealth , allowed sons , nor servants , no will of their own , making them in effect but the tools and instruments of their fathers and masters will , non creditur velle qui obsequitur imperio patris , vel domini , l. . ff . de . reg . jur . and if the law allowes them to have no will of their own , it cannot punish them when they obey their master , for all guilt is only punished , because it is an effect of the will ; and therefore , john rae was not put to the knowledge of an inqueist , as art , and part of theft , because he went only along with his father , when he was about twelve years of age , . of januar , . and by the . cap. num . . stat . will. the servant is only declared punishable , if he do not detect his master , or desert his service : and per. l. lib. homo . ff . ad . l. aquil . it is expresly decided , that si jussu alterius manu injuriam dedit , actio legis aquiliae cum eo est qui jussit , si modo jus imperandi habuit , quod si non habuit , cum eo agendum est qui fecit . though minors may be punished for a guilt , yet they ought not to be indicted till they attain to the years of majority , because if they were to be tryed in their lesse age , they might by want of wit and experience , omit their own just defences , and mismannage the debate in which they were ingaged , as to which , our old law appears to be very clear , r. m. lib. . c. . lib. . cap. . quia dicere vel tacere potest calore juvenili , quod ei nocere potest : suitable to which , skeen doth in his annotations observe a decision , betwixt his majesty , and the abbot of parbroth , anno , . & l. pen. cod . de autor . tut . & . l. . s. occisorum ad s. c. sillan & cap. . de delictis puerorum . extrav . since a minor may be restored against such omissions , or against a confession omitted by him , quando non potest aliter contra eum probaricrimen , or may omit to object against witnesses , it is more just and convenient , that he should not be tryed till he be major . for , if he be tryed , he must be once punished , and then his being restored is both impossible and improfitable : and it were very inconsequential for our law to have so far priviledged minors , as that they are not oblieged to debate super haereditate paterna , and that too upon these same reasons i here alledge , and that it should not much more secure them against criminal tryals in the same minority , where the hazard is greater , especially where the common-wealth is not concerned ( as here ) to have the guilt immediatly brought to open punishment , and where the crime is not attrocious , reaching no furder then privat revenge , and a pecuniary punishment . nor is the publick in this case disappointed of a just revenge ; for it can reach the father or uncle , who are alledged to be the principal actors . for the father , i alledge , that he cannot be pursued , as he who was accessory to the committing of the crime , in commanding or ratihabiting it , except it were condescended from what particular acts his ratihabition can be inferr'd , whether by words , deeds , concealing , or otherwise ; and it is not sufficient to lybel in the general , that he did ratihabit , no more then a lybel would be relevant , bearing , that my client were guilty of treason , without condescending how , as is clear by the opinion of all lawyers , who require , that lybels should be special , which is required by them , to the end that the relevancy of the lybel may be debated and determined by the judges , before it go to a tryall , which should be rather done amongst us , then any other nation , because the probation is in this kingdom tryed only be an assize , and these are ordinarly men who understand not the intricacies of law ; whereas if the particular way and manner of ratihabition be not condescended on , and discust by the judges , it must come to be debated after the probation before the inqueist ; and thus not only relevancy , and probation , matter of law , and matter of fact , but even the distinct offices of justices , and assizers , will be here confounded . as for instance , if the pursuer should prove , that the father said that all was well done , we would be forced to debate before the assize , that such passing words as these cannot infer a crime , for else many thousands in a nation might be found guilty of crimes to which they had no accession : or if it were only alledged , that he received his sons into his house , it would be likewise debated , that the receiving of a mans own sons into his house , cannot infer a crime in delictis levioribus , though it may be debated to be criminal in treason , and more attrocious crimes . upon which , and many other points , the doctors have writ very learnedly , and to debate such points before ignorant assizes were very dangerous . it is likewise alledged for the father , that he being only pursued as accessory to this crime committed by his brother , in so far as he did either command or ratihabit , it is therefore necessar , that the brother be first pursued and discust , it being a rule in all law , that the principal should be pleaded and discust , before him who commanded the same to be done , or before the receipter , as is clear by r. m. lib. . cap. . intituled , the order for accusing malefectors for crimes ; which agrees likewise with the opinion of the civilians , and particularly clar. quaest . . num . . whose words are , scias etiam quod quandoque proceditur contra aliquem tanquam quod praestiterit auxilium delicto , debet primo in processu constare principalem deliquisse . mars . quaest . . gives an example of it just in our case , a father is pursued as accessory to his sons guilt , in which case he alledges the father could not be tryed , till the son was first discust ; & alexand. consilio . vol. . dicit , quod nisi prius constet de manaatario , procedi non potest contra mandantem ; with which the english law agrees fully , by which the principal ought to be attainted by verdict , confession , or by outlawry , before any judgement can be given against accessories , bolton cap. . num . . and therefore , except the uncle , who was the principal actor here , were first found guilty by an assize , my client as commander and ratihabiter cannot be punished . to this it is answered , that the foresaid law of the majesty holds only in theft , but not in other crimes , and that as to all crimes it is abrogat by the . act. . parliament , ia. . by which it is appointed , that all criminal lybels shall be relevant , bearing art and part , without making any distinction betwixt principal and accessories , and the father is called here as a principal , having given a warrand , as said is , for else the giving warrand for doing treasonable deeds , or to commit murders , could not be punishable , though nothing followed ; whereas in all law , such deeds are criminal in themselves , and the mandant might be immediatly punished . to which it is replyed , that this maxim holds not only in theft , but in all other crimes ; for as there can be no reason of disparity given to difference theft from other crimes , as to this point ; so the rubrick of the former chapter . is general , and in the fourth verse of that chapter , it is said generally , that 〈◊〉 is manifest , that the commander or receipter shall not be ch●rged to answer , till the principal defender be first convicted by an assise . which is likewise quoad all crimes ordained indefinitly by the . act. stat. david . nor can it with justice be pretended , that these laws are abrogated by the foresaid statute of king iames the sixth , for these reasons ; . that act doth not expresly bear an abrogation of the former laws , and standing laws cannot be abrogat by consequences : nor can it be , but if the parliament had designed to abrogat so old and fundamental laws and customs , they would have exprest their design , especially since in criminal cases , all lawyers endeavour to make their laws clear and perspicuous . . no laws are interpret to abrogat one another , except they be inconsistent , so infavourable is abrogation of laws ; and it is generally received , that leges in materia diversa sese non tollunt , nec abrogant : but so it is , that these laws here founded on , are most consistent with the act of king iames the sixth , and these two are materiae diversae ; for it is very consistent , that a libel bearing art and part should be relevant , and yet that the principal should be first discussed ; for though the principal be first to be discussed , yet , when the accessories are to be accused , it is sufficient that it be generally libelled against them , that they were art and part , the one of these regulats only the way of procedure , & ordinem cognitionis , the other regulats the relevancy , and shows what lybel shall be sufficient . nor was there any thing more designed by that act , ia. . but that lybels in criminal cases should not be cast as irrelevant , as is clear by the narrative of the act. and by the civil law , ordo cognitionis , & accusatio eorum qui opem auxilium prestiterunt , are alwise accounted different titles , and are differently treated ; so that these two laws are very different , and very inconsistent . . if that law , ia. . had abrogat the former laws , whereby it is appointed , that the principal should be discust before the accessories , then it had followed by ▪ necessar consequence , that these laws could not have taken place after that act ; but so it is , that defences are dayly sustained upon these laws , as in the case lately of george graham , which shewes very convincingly , that they are not abrogated . the reasons likewise whereupon that law was founded , ordaining that accessories should not be pursued before the principal be discuss'd , are still in vigor , and are so just and necessar , that it were injust to abrogat a law founded upon them ; for the law considered , that if the principal were called , he might know many defences , which i● they were known to these who are alledged to be accessories , would certainly defend them ; as in this case , if the uncle were called who threw down the house , it may be he would alledge , that he did not throw down this cottage , till the accuser had consented , which consent he possibly hath : and this may be necessar in a thousand cases , as if a person were pursued for having been accessory to the driving away sheep , or neat , he might be convicted , though he were innocent , if the principal were not called , which principal if he were called , might produce a disposition from the party , or a legal poinding , either of which being produced , would defend both : whereas upon the other hand , if it were lawful or sufficient to accuse any persons as accessories , without pursuing the principal , the accuser might collude with the principal , and suffer him to go unpunished , providing he would keep up the defences and warrands , and so suffer the innocent accessories to be condemned . is it not a principle in nature , that accessorium debet sequi suum principale ? and doth not the law still require , that prius debet constari de corpore delicti ? and how can a man be pursued for hunding out another to throw down a house , untill it were first known that the house was thrown down ? nor is the giving an order to throw down a house criminal , though it were proven ; except the house were according to that order thrown down , and that it was thrown down by vertue of that order , and upon no other account . by all which it clearly appears , that the throwing down of the house , which is the principal guilt , must be first tryed , before it can be enquired , who gave the command . the last , and one of the great arguments , i shall use to prove , that the principal who threw down the house must be first discust , before my client can be pannell'd for commanding or ratihabiting , is , that by this method , probation should be led against absents , contrar to the known principles of our law , and by the connivance or ignorance of the accessories , the fame of an absent person may be wounded , and witnesses suffered to depone , who dared not have deponed if he had been present ; and though that probation led against him in absence would not be concluding , yet it would leave a stain ; and would engage the deponers to adhere to these prejudicat and false depositions in another process , to secure themselves against perjury . whereas it is pretended , that sometimes command is a crime , though nothing follow , it is answered , that where a mandat is of it self criminal , though nothing follow , as in treason , there the giver of the mandat must not be pursued as a complice , or accessory , but as the principal transgressor ; nor would the king be prejudged ( as is alledg'd ) if the principal behoved first to be discust , because it is pretended , that that principal might abstract himself , and thereby cut off the publick revenge , which would otherwise justly fall upon the accessories if they could be apprehended . for to this it is answered , that it is easie for his majestes advocat to raise a pursute against the principal , and if he compear , to proceed against him , or if he compear not , he may be denunced fugitive , which is a sufficient discussing of him as a principal , and will open sufficiently a way to proceed against the complices . it is likewise alledged , that the witnesses which are offered to be adduced against my clients , for proving that they committed this crime , are not testes habiles , and cannot be admitted , because i offer to prove by their own oath , that they were at the pulling down of the house , and did actually pull it down , and so are socii criminis , and consequently are repelled from witnessing , by the . cap. stat . . rob. . where there is an enumeration made of those who cannot be admitted to be witnesses , amongst whom are socii & participes ejusdem criminis . to which exception ; the accuser answers , that though socius criminis , cannot be admitted pro socio , yet he may be admitted contra socium , that he may be witness against , though not for those who were ingaged with him . . though socius criminis may not be admitted as a witnesse contra socium , where the crime in which they were ingaged fixes infamy upon the committers , as treason , witchcraft , murder , &c. yet in delicts or rather riots , such as is the casting down of a house , that tends to infer a pecuniary , and not a capital punishment ; there socii criminis may be received as witnesses ; for , the reason why they are ordinarily repell'd , is , because in deponing they confesse a crime against themselves , & se infamant , which reason ceases in delicts or lesser crimes , quae non infamant . it is likewise represented , that it is most clear from law , that the only reason why socii criminis are repelled from being witnesses is , because deponendo se infamant , and so they forfeit the capacity and confidence of integrity that the law reposes upon all persons that ought to be believed as witnesses ; by the whole contract of the whole titles , ff . & c. de testibus . and by clar. quaest . . num . . dictum socii criminis ad hoc ut fidem faciat , requiritur , ut sit confirmatum in tormentis , cum enim ex proprio delicto sit infamis , nec debet admitti pro teste sine tortura ; and the foresaid text of the majesty , ought as is alledged , to be interpret only so , as to take place ubi crimen infamat , and that dilicta non infamant is endeavoured to be prov●d by the statute of king william , de his qui notantur infamia , where it is said , that fures , sacrilegii , homicidii . and others , qui sunt irretiti capitalibus criminibus , repelluntur a testimonio . 〈◊〉 witnesses in delicts and riots should not be admitted because they are socii criminis , no delict ( sayes the pursuer ) should ever be prov'd ; for ordinarly none are present but the committers . and since after their confession they may be pursued themselves , it is not probable that they will depone against others falsely , especially when they may be overtaken upon their own deposition . to which it is duply'd , that it is a rule in law , that socius criminis , nec pro , nec contra socium admitti potest , l. quoniam c. de test . mascard . conclus . . by which it is clear , that the law makes no distinction whether he be adduced , for , or against his commorads , whether he be adduc'd in crimes , or delicts ; and socius criminis is not only repell'd from being a witnesse , because he stains his own fame , whilst he depones against his companions , but because the law presumes that being himself under the mercy of the pursuer , he will by an unjust deposition ransome himself from the event of the pursute , and therefore the law casts him as a witnesse ; for the law is unwilling to use those who hath offended it , and lawyers have alwise been unwilling to tempt men , by forcing them to depone upon their own errors , for they judged , that these who would commit a crime , would easily forswear it . and the law of the majesty formerly cited doth repell à testando socios criminis , & infames , whereas it needed not have exprest both , if it had comprehended the one under the other , and only repelled socios criminis , because they were infames . i perceive by lawyers , that sometimes they allow witnesses in attrocious and great crimes , whom they would not have admitted to prove crimes of lesse consequence , which proceeds both from the hatted they carry to these great crimes , a part of whose punishment it is that the crime can be easily prov'd : but likewise to the end the common-wealth may be the better secured ; whose great concern it is , that judges be not too nice and scrupulous in receiving witnesses against its enemies . nor did the law think , that men would be so base and malitious , as to seek the death of their enemies by a false deposition , even where possiblie revenge would be content to reach their estates . therefore , by the common law of nations in attrocious crimes , such as treason , simonie or sacriledge , socii & participes criminis admittuntur , l. quisquis c. ad l. jul . majest . glossa in l. ffin . c. de accus . specul . tit . de prob . § . . boer . quaest . . and according to our law it is appointed by an expresse act of sederunt , anno , . that socii criminis may be witnesses in the cases of treason , and witchcraft ; but i do not at all read , that socius criminis is allowed to be led a witnesse in delicts , and all the reasons that militat for the former cause , do militat against this . nor is it possible to believe , that the law which allowes socii criminis to be witnesses in great crimes , because they are great , would likewise allow them to be led witnesses in small crimes , because they are small ; for so the law would contradict it self , and would build contrarieties upon the same foundation : and since the foresaid act , . allowes them to be led witnesses in crimes of witchcraft , and treason , they ought not to be admitted in any other crime , how small so ever , for in privilegiatis , inclusio unius , est exclusio alterius . it is very clear , that the law would not admit the testimony of a partaker of the crime , to have the force of a presumption , nor to be the ground of an accusation , salicet . in l. ffin . c. de accus . nor gives it any credit to his deposition , though he were otherwise esteem'd a most credible person , probatissimae fidei , grammat . consil . . num . . nor doth it believe him though he were deponing against a person suspected to be guilty , bert. consil . . nor doth it believe a thousand such witnesses , though they agreed in their depositions , for all these joyned together weigh not one presumption , mascard . ibid. num . . by all which it may appear very clearly , that the law which respects socios criminis so little , doth in no case design to receive them in a criminal court , what ever may be debated for receiving them in civil courts , for proving civil conclusions . as to the inconvenience adduced , wherein it is contended , that if such witnesses were not admitted , no crime could be proved ; it is answered , that this argument would urge judges to receive socios criminis to be witnesses , as well in all crimes , as in small crimes ; for it is a brocard commonly received amongst the doctors , that quod admittitur ob incommodum , eo magis admittitur , quo magis urget incommodum ; and yet here it is confest , that they could not be admitted witnesses in murder , and those greater crimes . but the only natural conclusion that could be drawn from this inconvenience , is , that socii criminis should be admitted witnesses in occult crimes , such as conspiracies , but not in such crimes as this where there could be no penury of witnesses , being alledged to be commited in open day , in the midst of a town , and with a convocation . but to conclude all , i need only say , that my objection against these witnesses is founded upon an expresse law , and therefore it cannot be taken away by this distinction , except this distinction can be establisht upon , and maintained by another law as expresse . the justices found , that these minors being puberes , might be try'd , and so found that they should passe to the knowledge of an inqueist . . they found the father should passe to the knowledge of an inqueist , as art and part , though the principal actors were not yet discust . . they found , that socius criminis could not be received a witnesse in any criminal pursute , though the punishment could only reach to a pecuniary mulct . an answer to some reasons printed in england , against the overture of bringing into that kingdom , such registers as are used in scotland . in the first ages of the world , when man had not fallen so intirely as now from his original innocence , laws were made rather to govern reasonable men , then to prevent cheats . but when fraud did begin to grow up with subtilty , legislators being warned to guard against future abuses , by these they had seen committed , did in all places endeavour to reform their people , by reforming their laws , & sic ex malis moribus bonae ortae sunt leges ; and because wise men look upon themselves as sprung from the same divine original , therefore they have still been intent to borrow from one another , what excellent constitutions they found to have been invented by them . thus though scotland did adopt the laws of the romans ( called now the civil law ) into the first place next their own ; yet , such esteem hath that kingdom alwayes had for their neighbours of england , that they have incorporated into the body of their own laws , very many english forms and statutes . and as some sciences , trades and inventions flourish more , because more cultivat in one nation then another , humane nature allowing no universal excellency , and god designing thus to gratifie every countrey that he hath created ; so scotland hath above all other nations , by a serious and long experience , obviated most happily all frauds , by their publick registers . and though they are not furder concerned to recommend this invention to their neighbours , then in so far as common charity leads them , yet finding their registers so much mistaken in a discourse , entituled , reasons against registring reformation , i thought it convenient to represent a short account and vindication of them . registers are appointed in scotland , either for real rights ( for so we call all rights and securities of land ) or for personal obligations , by which a man binds his person , but not his estate . men sell their land in scotland , either absolutely , or under reversion ; if absolutely , it must be either to the sellers own superior , or to a stranger ; if to his superior of whom he holds his land , it is transmitted with us by an instrument of resignation in the hands of his superior , ad perpetuam remanentiam , whereby the propriety is consolidated with the superiority , and this instrument must be registrat . but if he sell it to a stranger , then the acquirer must be seased , and this sasine must be registrat within sixty dayes . or if a man do not absolutely dispone his estate , but retain a power to redeem the same , upon payment of the sum for which it is wodset or morgaged , then the paper whereby this power is allowed , is called a reversion , and it must be registrat within sixty dayes also . if any heretor be suspected by his friends to be prodigal , or unfit to mannage his own affairs , he interdicts himself to his friends in a paper , wherein he oblieges himself to do no deed without their consent : or , if a creditor who lent his money to an heretor , find that heretor intends to sell his estate , without paying him , albeit he did lend his money in contemplation of that estate , which the borrower then had ; he makes an application to the supreme judicature of the kingdom , called the lords of the session , and from them obtains a warrand to inhibit his debitor to sell that estate , till he be payed , which interdiction or inhibition must be first published at the mercat-cross where the lands lye , and then registrated within fourty dayes . there are two of these registers , or publick books , one in the chief town of the shire , and another at edinburgh , which serves for all the shires , and in either of these , all these sasings , reversions , interdictions , and inhibitions may be registrated : so that when any man intends to buy lands , he goes to the keepers of these registers , who keeps a short breviat of these in a book apart , called the minute book , ( bearing the day when any inhibition was presented against such a man , at the instance of such a man ) and there he finds for a crown , what incumbrances are upon the estate he intends to buy , and if he find none , he is secure for ever . as to personal bonds , they need not be registrated , but if the creditor resolve to secure his bond against lossing , or if his debitor refuse to pay his money , when he calls for it , then he gives in the original , or principal bond to the register , who keeps it still , and gets out an extract or coppy of it , collationed by my lord registers servants , and subscribed by himself or his depute ; for there is a register for bonds in every shire , town , and jurisdiction , as well as at edinburgh . this registration hath with us the strength of a judicial sentence , and warrands the creditor to charge his debitor , to pay under the pain of horning ( or out-lawry ) and if he disobey , the horning is registrated . and thus every man knows in what condition his debitor is , as to his personal estate , if he begin not to keep his credit ; and this register serves both for execution and information . this being the state of the registers in scotland , the usefulnesse of that institution , may appear from these following reasons . . there is nothing discourages men more from being vigilant in their employments , then when they apprehend that the money which is that product , by which their pains uses to be rewarded , cannot be secured to their posterity , for whose advantage they disquiet themselves , and coil so much . and thus the common-wealth will be but lazily served , trade will be starv'd , and ingenuous spirits discouraged . not is it to be imagined how purchasers will be , or are induced to be at much pains and expences , to improve their grounds , and adorn their dwellings ; when the loosnesse of their right layes them open to renewed hazards , nor can they enjoy with pleasure , what they cannot possesse with certainty . and what frail securities have such as are forced to rest upon the ingenuity of sellers , who of all people are least to be trusted ? for such as sell lands , are either prodigals , who are too vitious , or distrest persons , who are ordinarly under too many necessities to be believed . . registers are of all others , the greatest security against the forging of false papers ; for forgers use to conceal for some time , the papers they forge ; whereas the necessity of registrating them within such a time , will either fright the contrivers , from doing what they must expose to the light , or will at least furnish such as are concerned to have the fraud detected , with means which may be effectual , seing it is much easier to expiscat truth whilest the witnesses are alive , and all circumstances recent , then after that a long interval of elapsed time hath carried away the persons , and obscured the circumstances , from which truth could have received any light . . purchasers being fully secured by the publick faith of registers , need not burden the seller with a necessity of finding surety to them for the validity of the rights sold , which as it resolves still in an personal ( and consequently an unfixt ) security , for the buyers , so vexes very much the seller and his friends . . the security , which flowes from registers , cuts off much matter of pleading , and thereby defends against those feuds and picques , which last ever after amongst such as are concerned , and keeps gentlemen at home improving their estates , and merchants and tradsmen in their cantors , and shops , enriching the nation . . when men are to bestow their daughters , they are by our registers , informed , and assured of the condition of those with whom they deal , and by their means , men are kept from giving their daughters and their fortunes , or a considerable share thereof , to bankerupts , and cheats . likeas , the daughters are by them , secured in their joyntures , and not exposed after their husbands death , to tedious suits of law , the dependance whereof draws them to publick places , unfit for their sex , and the event whereof drives them to begging and misery . . by these , the price and value of land is much raised , for by how much more the purchase is certain , by so much more it is worth . . by these , heretors who are opprest by debt , are relieved by the sale of their lands , upon which buyers now adventure freely ; whereas , if they were to rely upon the faith of the sellers , their estates might continue unsold , till the rent of their money should eat up the stock . . by these , usury and unfrugal transactions with brockers and others , are much restrained ; for if purchases of lands were not secure , men would rather choose to hazard their money so , then upon land. . by these , parents know when their children , and kinsmen , when their relations debord , and burthen their estates , and are thereby warned to check , or assist them . . by these , strangers and forreigners are secured who resolved to match with us , or to purchase amongst us , for our registers are equally faithfull to all . . by these , commerce is very much secured ; for , if a merchant , or ordinary transacter refuse to pay his debts , then his bond is put in the publick register , by which the creditor is secured of payment , and the debitor is deterred from owing too much . . by these registers , papers are secured against fire , loss and accidents , to which they are exposed whilest they are kept in privat hands : whereas , after regstration , nothing can destroy them , but what ruines the whole kingdom , and even in that case , there is still hope of recovering publick registers , as in our last revolutions . in this last place , i must crave leave to wonder , why england hath already taken so much pains to secure against fraudulent cheating of creditors , and of buyers , as is clear from the statutes cited by the author , if they intend not to prosecute that worthy design . but as an evident mark to know whether registers be necessary , they may consider , that if any man in england can for a crown , know in the space of a day , the condition of these from whom he purchases , then registers are not necessary , but if otherwise , they are : if any lawyer in england can assure his client , that the purchase he makes is secure above all hazard , then registers are not necessary ; but if they cannot , then registers are necessary ; so that it seems england hath done too much already , or else that they should do more to secure their people . yet , since i only design to defend our own law , and not to impugn theirs , it were impertinent for me to recommend too zealously , that wherein i am not much concerned . against this so just and so necessary a constitution , founded so strongly upon reason , and approved so firmly by experience , the author of the reasons against registering reformation , hath put his invention and wit ( both which i confesse are very fertile ) upon the rack , to find out , and muster up some arguments , which owe their number and beauty to the unacquaintednesse of his country-men with the model he impugns , and which the author hath beat out by too much industry , to a thinnesse , that is not able to bear the weight he layes upon them . his first argument is founded upon the dangers that arise from innovations , wherein legislators are not able to have a full prospect of all inconveniences which may follow : but to this it may be answered , that the law of england had not deserved the honour done it by the author , nor had it swelled to its present bulk , if it had not been frequently augmented by new additions . and as to this project of keeping registers , england may be wise upon the hazard of their neighbours , who by being first practizers , have run all the risque , and taken all the pains which was necessar for accomplishing so great a design . the second reason bears , that by registers , the lownesse of the fortunes of such who suffered for his majesty , would be discovered , and they thereby exposed to much rigour from their creditors : but this i humbly conceive , proves more the contrary opinion , then that for which it is adduced ; for as it were injust to gratifie such as have suffered for his majesty , with the liberty of preying upon such as probably lent them , because they were of their principles , and of devouring poor widowes and orphans , whose necessities will doubtlesse load one day very much , the consciences of such as might have secured their petty fortunes by the help of the registers now proposed . and this argument presses no more against registers , then it doth against all those laudable and well-contrived statutes , which are already invented in england against fraudulent conveyances , forgeries and impostures ; for registers will not debar them from courses which are legal and honest . whereas it is in the third place urged , that commerce would be a great sufferer by registers , seing they would lay open the lownesse of mens fortunes , who do now enrich the kingdom , and themselves too , upon meer credit ; and that they would discover to forreigners , the low estate of england at present , and make every privat estate too well known . it is answered , that all these inferences are drawn from the authors unacquaintednesse with what he impungs , as was formerly observed ; for no man is oblieged to registrat a bond , which oblieges only to pay money ; nor do men registrat such , except where the debitor refuses to pay , and so these registers will not weaken commerce nor credit , seing commerce is not immediatly concerned in real estates : and even as to personal estates , or money , no man suffers by registers or is concerned in them , but such as have no respect to their credit , and commerce owes little to such ; whereas upon the other hand , the fear of this will be yet a further tye upon men to pay punctually , without which commerce will soon be starv'd . and by the registers , bankerupts will be soon discovered , whereby honest men who are the true nurses of trade will be much cherished and secured . and by this answer it appears clearly , that the riches of england , neither personal nor real can be made known by the registers ; for only the bonds of bankerupts are to be registrated , and though all real rights must , yet the quota of the real estate is not exprest in the papers to be registrated . after the author of that discourse against registering reformation found , that so unanswerable advantages arise from reg●sters , as that they could not be ballanced by the inconveniences which he laid in the other scale , he is pleased ( which is ordinary for such as cannot prevail by reason ) to reflect upon scotland , as a poor countrey , and against the scots as an unmercifull people , and to alledge , that their poverty , and feverity introduced those registers , and made them necessary with us , but that they would never agree with the rich , and tender-hearted english ; which reflections deserve rather our pitty , then our answer . leaving then this womanly way of arguing , as unfit for the scots , who study to be philosophers in their writings , as well as in their humours ; it is humbly conceived , that registers do restrain no mans compassion , for no man doth vertuously indulge his creditor , but he who knows the lownesse of his condition , which he cannot without registers ; ignorance is lesse the mother of vertue , then of devotion . registers prejudge only such as are cheats , and such deserve little compassion ; nor are our laws more severe against debitors who pay not , than the laws of england ; for both imprison such , and the only weak side in our law is , that it allows too much our judges to suspend the payment of debts , and i never heard the english , who live amongst us , complain of any other defect in our laws . our laws are extracted from the civil law , and such doctors as writ the law of nations ; and strangers understand our law sooner than any other law in the world , except their own ; and our captions for imprisoning debitors , who refuse to pay , are expresly warranted by that law of the romans ; which though it was the best law in the world , and is universally acknowledged to be such , yet was more severe then ours . the comparing of nations as to their poverty and riches , brings more heat then light ; nor can any difference betwixt the nations in these , make any difference as to this design ; or if it doth , it may be debated with reason , that registers are fitter for a rich , then a poor nation ; for where there are most buyers , and most land to be bought , registers are there most necessary , seing they were invented to inform buyers , as to the incumbrances wherein estates are involved by the multiplicity of purchasers . where there is but little land , and where the creditor is poor , there the creditor may have time , and leisure sufficient , to watch the small estate of his debitor . our nation supplies their neighbours with corns , and cattel , lead , copper , timber , coal , salt , and many other necessaries ; whereas in exchange of these , it receives only from them wine , spices , silks , and other superfluities , which as england , no more than scotland , hath growing within their countreys , so it is probable that both nations would live more happily without them : and thus it appears , that scotland is not so poor , as these reasons are . i would here put an end to these observations , if i were not unwilling to suffer that gentleman to continue in his error of thinking , that our registration of movable bonds ows its origin to the caursini , the popes brokers in england , and to the camera apostolica , under the reign of henry the third ; for as it is most improbable , that our nation would borrow so fundamental a constitution , from what was practis'd in a nation that was in enmity with them at that time ; so it is no way probable , they would have followed the methods of the popes agents at that time , when they were opprest by their master the popes endeavouring to subject their clergy of scotland , to the see of york , and by these agents themselves , in such mercilesse exactions . but the truth is , that though the compleating of this excellent constitution , is an honour due to scotland ; yet , its first origine is rooted in the roman law ; and most nations of the world do at this day use registers , which may be thus cleared . the romans , to restrain excessive donations , appointd them insinuari apud judicem , ut obviam iretur fraudibus , which insinuation was the same with our registrations ; thereafter they used regesta , quae vulgo registra , quasi regestaria dicuntur , illa erant acta tabulae publicae , which were at constantinople ; and in the eastern empire , called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as prat. observes : and by vopiscus in probo , are called registra . usus est enim ( inquit vopiscus ) registris , scribarum porticus prophyreticae . the romans had likewise publick books , wherein papers were preserved , which were under the western empire called archiva tabularia & tablina , but under the eastern empire were called grammatophilacia , ubi instrumenta publice deponuntur , as ulpianus observes , l. moris . ff . de paenis , § . that other nations besides scotland use to preserve their papers in publick places , and appoint their privat rights to be made publick and known by registering them , appears from alex. consil . . wherein he treats of the registers civitatis rheg . and by his consil . . wherein he treats of the registers civitatis arimini ; and at rome they use regestrum supplicationem apostolicarum ; and another register literarum apostolicarum , castr. consil . . but the registers used by us , have been allowed , and imitated by the french most exactly ; for a constitution , anno , . made by hen. . provides , that all dispositions , contracts and obligations exceeding fifty livres , shall be registrat ; and if it be not registrat , it shall be null , in so far as concerns third parties ; the narrative of which law , proves the advantageousnesse of registers ; for it bears , that after all other means have been essayed , we find that there was none save this of registers to make our subjects live in assurance , to obviat all debates , and to prevent cheats : in which , and these other constitutions which follow upon it , all the methods used by us are exactly set down , such as the marking of registers in every leaf , the having particular registers in every inferior jurisdiction , and the marking of the principal , or original papers upon the back ; there also the coppies collationed are called extracts . but that in this they imitated us , is clear , for we had registers before the year , . because by the twenty seventh act , fifth parl. ia. . reversions are appointed to be registrated ; which act speaks of registers as then in being , and fully established . i find also , that in the old hansiatick maritime laws , tit . . art . . it is provided , that nullus nautarum , ullam silliginem , aut alia bona navi importet , vel exportet , sine scitu naucleri , & scribae navalis ubi etiam in registro poni debent . which i observe to clear , that all ages and nations , traffiquers by sea , as well as lawyers by land , have thought registers advantageous for commerce , and a sure fence against cheats : and if registers be necessary in such mean , and transitory occasions , as loadings and moveables , much more are they necessary in lands , which as they are of the greatest importance , so are of the longest duration . since then registers have been found so advantageous , and that experience hath herein seconded reason , it is humbly conceived , that scotland is much to be magnified for their registers ; and that england may , without disparagement , introduce this new amongst their old statutes , whereby they cannot be so properly said to innovat , as to enrich and augment their own law , nec pudet ad meliora transire . but , i know that nation to be so wise and provident , that if they understood our registers , as well as they do their own concern , they would easily prefer them to those reasons , which this gentleman has offered against them . finis . adde before the figure . lin . penult . page . in answer to the french pleading . and that this condition can only be purified , or satisfied by a natural , and not by a civil or fictitious death , is clear by very expresse laws , as l. . ff . de . cap. dimin : where it is said , eas obligationes quae ' naturalem praestationem habere intelliguntur , palam est capitis diminutione non perire , quia civilis ratio naturalia jura corrumpere non potest . thus gaius , one of the best roman lawyers hath said , that such interpretations doth corrupt the law , and in effect mix things that are very different , invading the limits of nature , and stretching fictions furder than they ought to go : and therefore , such criminal sentences as do not really kill , sed fictione civili caput diminuunt , are not termed death , but a punishment next to death , deinde proxima morti paena , damnatio in metallum , l. capitalium , ff . de paenis . this likewise papiniam decides , l. . ff . de verb. oblig . in insulam deportato reo promittendi stipulatio ita concepta cum morieris dari non nisi moriente eo committitur . and upon the same ground , l. cum pater , § hereditatem , ff . de legat . . he determines our case expresly , and asserts , that such sentences cannot in fidei-commissis , be accounted death , haereditatem filius cum moreretur , suis vel cui ex his voluisset restituere fuerat rogatus , quo interea in insulam deportato , eligendi facultatem non esse paena peremptam placuit ; nec fidei commissi conditionem , aut mortem filii haeredis existere : with whom agrees , paulus l. statius § . cornelia foelici , ff . de jure fisci , cornelia felici mater scripta haeres rogata erat restituere hereditatem post mortem suam , cum haeres scripta condemnata esset , & à fisco omnia bona mulieris occuparentur ; dicebat foelix se ante paenam esse , hoc enim constitutum est , sed si nondum dies fidei commissi venisset , quia potest ipse mori , vel etiam mater alias res acquirere repulsus est interim à petitione . thus we see , that all the roman lawyers have conspired to allow only natural death , to satisfie such conditions as this is ; death is the last of all things , rerum ultima linea , and therefore these sentences leaving still room to hopes and expectations , cannot be called death , which with the person cuts off all these . it is thought by the best of men already , that death comes too soon , why then should we precipitat it , and force it upon men before its time ? and since one death is thought by all a severe enough punishment , why should we multiply a thing that is but too oft too unwelcome ? death is too serious a hing , to be counterfei●ed by such ●fictions , and too severe thing to be quibled upon , by such interpretations . adde to pag. . lin . . at these words , after victuall was expresly prohibited . i find , that by the roman law , l. . c. que res export . non deb . it is declared unlawfull to carry or sell arms to the enemies of rome ; but though in law , all that is not forbidden is allowed , and that there be there a full enumeration of what should not be carryed into enemies , yet corn is not at all specified . and by the canon law , all such as supply turks , and the other enemies of christian religion , with guns , swords , & aliis metallorum generibus , & instrumentis bellicis , are an thematiz'd ; yet , there is no execration pronunced against such as supply them with victuals : and though to carry wine or oyl to barbarians was punishable by the roman law , l. . c. e●d . ne quidem gustus causa , aut usus commerciorum , least the delicacies of the italian fruits should have tempted those to invade it , yet , that law did not at all reach their allies , nay , nor did it so much as prohibit even in subjects , the sending corn to enemies who were not barbarians : so that what ever may be alledged against allies , who buy corns to carry into enemies ; yet it seems most unjust that the swedes , who carry in only their own product , either corn , or stock-fish to sell them , should be proceeded against as enemies upon that account , and at this rate , sweden could no where sell their corn , nor other native commodities , for they can only vent them either in holland , france , england , or denmark , and all those being now ingadged in this war , the poor swedes behoved to loss all their own rents , and want all these necessaries with which they can only be supplied from the product of these , and here the swedes cannot be so properly said to supply the hollanders , as to entertain themselves , and his majesty would sooner starve thus his allies , then his enemies . and though princes may impose these hard terms upon their own subjects , yet it were hard they could tye their allies to the same terms : which makes me believe , that the decisions related by boer , decis . . and by christinaens , decis . . wherein they relate , that the exportation of corns in time of war is a sufficient reason for confiscating both ship and goods , frumenta , vina & olea , existente prohibitione ad exteros , praesertim inimicos , exportare non licet , christian. ibid. for exportation being only prohibited , it can only extend to subjects ; for none can export properly , but they ; for allies cannot be said to export when they trade , for to export is to carry out of the place where the prohibition was made . i confesse , that the carrying in corns to holland may seem a greater supply to them , then it would be to any other nation , because their countrey cannot supply them with its native product ; yet , since they have the ●bine , the me●z , and other rivers open to them , in which his m●jesties ships cannot stop their commerce , they will be abundantly supplied with corns , though sweden could be bound up by this treaty from supplying them : so that his majesty will prejudge thus his allies the swedes , in their commerce , without wronging his enemies , as to corn or other provision . and to clear , that the comeatus here prohibited , is only corn carryed in to citties besieged , or to armies of the enemies , but that our allies are not absolutely prohibited to carry corns to any who are in enmity with us ; your lordships will be pleased to consider , that comeatus signifies properly , a liberty granted to souldiers to go and return salvum conductum , as is most clear by the whole title , c. de commeatu . and though some have taken the word thereafter in a translatitious sense , pro cibariis & alimoniis exercitus , yet to extend that to all corn carryed in by way of commerce to an enemies countrey ; seems very hard ; especially where it is not carryed in alimoniae sed commercii ergo , and though corn as the staff of life ; be sometimes specially prohibited , yet that should not be extended to stock-fish and other lesse necessary provisions : and though it were extended to these , yet the carrying so small a quantity could no more be esteemed a contravention of the treaty , then the carrying a little money ( without which there can be no trade ) could be esteem'd a breach of that part of the treaty , whereby pecunia or money is ordained not to be carryed ; si quis ab initio sui usus causa exportaverit , postea vero quia non indigeret partem vendidit legem non offendit , ludovic . conclus . . circa modum usus tunc praesumitur cum modico quantitas vendita est , tuld . tit . c. quae res export , num . . from which i conclude , that the prohibition of carrying in money , or victualls , can only reach those who carry them in great quantities , or to besieged citties , or armies , or principally for the advantage of the enemies , and for strengthening them in war against his majesty ; for since to restrain this , is the only design of the treaty , the words in the treaty should be interpreted suitably to this design : and thus this poor ship can only be condemned for its original sin , having carryed contraband in the former voyage . the liberties, usages, and customes of the city of london confirmed by especiall acts of parliament, with the time of their confirmation : also divers ample, and most beneficiall charters, granted by king henry the , king edward the , and king henrie the th, not confirmed by parliament as the other charters were, and where to find every particular grant and confirmation at large / collected by sir henry colthrop, knight, ... calthrop, henry, sir, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing c ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing c estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : or :e , no ) the liberties, usages, and customes of the city of london confirmed by especiall acts of parliament, with the time of their confirmation : also divers ample, and most beneficiall charters, granted by king henry the , king edward the , and king henrie the th, not confirmed by parliament as the other charters were, and where to find every particular grant and confirmation at large / collected by sir henry colthrop, knight, ... calthrop, henry, sir, - . carpenter, john, ?- ? [ ], p. printed by b. alsop for nicholas vavasour, and are to be sold at his shop ..., london : . an epitome, arranged alphabetically under subject headings, of the liber albus, a collection of laws and customs relating to london, compiled by john carpenter in . reproduction of original in huntington library and thomason collection, british library. eng customary law -- england -- london -- early works to . law reports, digests, etc. -- england -- london. london (england) -- charters, grants, privileges. a r (wing c ). civilwar no the liberties usages, and customes of the city of london; confirmed by especiall acts of parliament, with the time of their confirmation. al calthrop, henry, sir b the rate of defects per , words puts this text in the b category of texts with fewer than defects per , words. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - ali jakobson sampled and proofread - ali jakobson text and markup reviewed and edited - pfs batch review (qc) and xml conversion blazon or coat of arms the liberties usages , and customes of the city of london ; confirmed by especiall acts of parliament , with the time of their confirmation . also , divers ample , and most beneficiall charters , granted by king henry the . king edward the . and king henrie the th . not confirmed by parliament as the other charters were , and where to find every particular grant and confirmation at large . collected by sir henry colthrop , knight , sometime recorder of london , for his private use . and now published for the good and benefit of this honourable city . london : printed by b. alsop for nicholas vavasour , and are to be sold at his shop in the inner-temple , mdcxlii . the liberties , usages , and customes , of the city of london . all the liberties , usages , and custome hereafter following , are confined by an especiall act of parliament at westminster , anno septimo regni regis r. . albo libro , . a. abrokers . that the abrokers of any merchandize in this city , shall not be , except the same be chosen by marchants of the mistery ; in which the same ab-brokers , shal have there exercise of their office , and the same abrokers also to be sworn before the lord major of the city of london , libro albo , . a. . h. . abrokecators , or brokers . abrokecators or brokers . brokers are to be chosen by merchants of their own misteries , and they shall take their oath before the major of london , lib , albo fol , . b. . e. . per charter & parliament . acquittances of murder . the citizens are acquitted as well for any murder committed within the city , as within the portsoken . viz they shall not be amerced as they have bin in old time if the murderer did escape , fol. . albo lib. . h. . so that the statutes of english shere , anno . e. . cap . acquittances . that the citizens of london shall be for ever acquitted of pavage , portage , and murrage , through all the kings dominions , lib. alb. fol. . b , c. anno . h. . aldermen and their election . upon the feast day of s. gregorie , yearly shall every alderman be removed from their place , and new in their place shall be chosen , lib , alb . fol. . a. b. , e. . note that this is changed since by act of parliament . aldermens goods . that aldermens goods shall be taxed in aids , tallages , or other contributions amongst other mens goods , lib. alb. f. , b. allowance of liberties . it shall suffice that one writ in one kings time shall serve in the kings exchequer , and in all other places for the allowance of the liberties , lib. alb. f , . b , . e , . learn for what cause at every change the city is put to so great charges , as to procure a new confirmation . i think it be only for the profit of chancery men . amerciaments . the sheriffe shall not be amerced for any offence above . l. lib. alb. f. . anno . h. . that the sheriffes of london shall not be charged or amerced for escape of any fellon , but as other sheriffes have used on this side trent , lib , alb . f. . b. . e. . none shall be otherwise amerced , but according to law used in the time of h. . lib. alb. f. . . h. . aids and contributions . that the citizens of london in all aids , grants , and contributions to the kings use , shall be taxed and contribute with the commonalty of england , as men of the counties , and not as men of cities and burrowes , and that they shall be free from all other tallages , and thereof cleerly acquitted , lib , al. f. . . e. . bakers and millers . there is a statute in french granted by the king for the punishment of bakers and millers , and tryed by weight , whether the millers do deceive the owners of the corn , and that ob . to be yeelded for every quarter of corn that is ground , lib. al. f. , b , c , . e. . battaile . a citizen shall not be enforced to wage battaile , nor shall in the pleas of crown be tryed by any other order , but only according to the ancient custome of the city lib. al fol. , anno , h. . bean-pleader . none shall be amerced for mispleading , the which the book calleth misk●nning , li . al. f. , , h. . bridgemasters . the bridgmasters shall be chosen by the commons , ther must be but two , and they must be approved sufficient men of the city , being no aldermen , lib , al. fol. . , hen. . buttlerage . and of the wines of the citizens , no prizes or takings shall bee had or made by any of the kings ministers of their heirs , or of any other against their will , that is to wit , of one run before the mast , and of any other tun behind the mast , nor in any other manner , but they shall be therof acquitted for ever , br . alb. fol. . lib. . e. . ceritorary or writ of priviledge . note , that the king chargeth his treasurer , and the barons of the exchequer , and other his ministers of the same court , that from hence forth the kings writ shall not be granted to remove the body of any imprisoned in the goal of newgate , or else-where within the liberties , of the city of london , for debts or damages in any action adjudged to any citizen to answer to the king , or other in the said court of exchequer ; for the kings debt , or for the debt of any of the ministers of the said exchequer , except the said barons do first find the said action to be feigned or untrue , lib. alb. fol. . anno . r. . chamberlain , town-clerk , and common sergeant . that these three offices are eligible and removable by the commons , and at the will of the commons , lib. albo fol. . b. . hen. . colouring of strangers goods . that citizen which coloureth strangers goods , shall lose his freedome , lib alb . fol. . b. c. . hen. . confirmation . all the aforesaid liberties are confirmed by act of parliament , and by charter , lib. alb. fol. . anno. . e. . corporation of london . in the . year of king hen. . he granted unto the citizens of london , the counties of london and middlesex in fee farm . note , that the grant was made unto the citizens only , and not to the major and citizens and commonalty of london , as the usage is at this day , but this maketh no doubt , because the charter is confirmed by parliament the . of november in the . year of the king , n. . lib. alb. . a. b. & fol. . a. custome paid . if any sell his ware before the custome paid , it shal be forfeited lib. alb. fol. . b. . hen. . customes expounded , and new laws made . that it shall be lawfull for the major , and aldermen with the assent of the commons to expound obscure customes , and when need requireth to make new laws , the which shall be consonant to reason , lib. alb. fol. . . e. . debts . all manner of debts lent in london shall be sued for in london , lib. alb. fol. . b. . hen. . elections . that the major of london , and the sheriffes shall be chosen and elected in such sort , as they were appointed by the ancient charter , and in no otherwise . escheator . that no escheator or other minister of the king , shall exercise their offices within the city , but that the major for the time being , shall be escheator and he shal yeeld unto the king his oath , that he shall duly exercise and make a true accompt for the same office , lib. alb. fol. . a. . e. . expostion . if any difficulty or ambiguity do arise upon any article , within any of the kings charters granted unto this city , so that the same article may be taken to divers meanings : the king granteth that he by the advisement of his counsell , may make therof such interpretation as shall be best with equity and reason , lib. alb. . ab . . r. . fellons goods . that the citizens shall have infangtheff , and outfangtheff , and the goods of all fellons that shall be adjudged before them within their liberties there , lib. alb. fol. . b. . e , . fee farme . where the counties of london and middlesex were let to farm for . l. and yet notwithstanding the office of the exchequer by incrochment , compelled them to pay . l. now it is granted by parliament , that the city shall pay no more but . l. according to their former charters , lib. albo fol. . b. . e. . fee farm apportioned . if the king do grant to any other , any thing that belongeth to the fee farm , then shall the fee farm for so much yearly be apportioned and abated at the exchequer , fol , . lib. albo . hen. . fee farm of london and middlesex . the fee farm of london and middlesex , that is to say , for . l. by the year , is granted to the citizens of london , by . hen. . and confirmed by parliament in the . r. . lib. albo fol. . a. b. and fol. . a lib. . farm bought , and farm sold . the statute of anno . e , . cap. . rastall tile merchants , no . . is for asmuch as concerneth london expounded and repealed and the liberties of magna charta , as touching london are revived , and the intent of the law-makers expounded was not to touch london , nor yet infringe the liberties of the great charter , lib. alb. . a. b. the aforesaid statute anno . e. . hath bin very often objected against the city of london in parliaments , by such as are ignorant of our charters and statutes , vide alib , lib : alb. flo . . a. b. a notable grant by parliament for the same matter . foren bought , and foren sold . no stranger shall foren buy , and foren sell within this city any statute , to the contrary notwithstanding , lib. alb. fol. . b. and per parliament . foren bought , and foren sold . both by charter and parliament it is granted , that from henceforth no merchant being a stranger to the liberties of this city , shall buy or sell any merchandize within the liberties of this city , to any like stranger merchant , upon the pain of forfeitures of such merchandizes so bought or sold , lib. alb. f. . a , b. . r. . forest of middlesex dissaforested . king henry . anno . regni sui , did by his charter dissaforest the warren of stanes , and the forrest of middlesex , the which was a singular benefit both to the country , and also for the city . note also in the same place , a man may gather some notable points touching the forest law , lib. alb. fol. . b , c. forfeiture or seisure of the liberties of the city . that the liberty of the city shall not be seized in the kings hands , for any personall trespasse , or judgment personall of any minister of the city , or for any such cause , any warden called custos shall be by the king deputed to rule the city ; but every minister shall answer for his own fault , and shall according to the quantity and quality of the same fault , receive condigne punishment , lib. albo fol. . b . e. . form of iustice . that the citisens of london in the eyres before the justices of the tower shall be measured , guided , and go●erned by the laws and customes ; by the which , they were guided in the eires , holden there in the times of king iohn and king henry the . lib. alb. f. . b. . e. . fore-stallers . fore-stallers and fore-stalments made by the merchants , for or concerning merchandize or victuals , either by land , or by water , shall be punished by forfeiture , or imprisonment , lib. albo . b . h. . free-men and making free-men . no stranger born shall be made free of this city but in the court of hustings , lib. albo fol. . b . h. . how free denizens and englishmen that never were apprenties shall be made free , and how every one ought to put in for himself sufficient sureties , to be true to the conservation of the city , but this order is not used at this day ; therfore i omit to speak any more of it in this place , and yet is this form of making free-men by redemption , appointed by parliament , lib. al. fol. , b , henry . hunting . the citizens of london may have their sugations , viz. their hunting in all such places , as they had the same in the time of king henrie . lib. alb. fol. , b , . henrie . hustings . that aswell forreiners as others , being either plaintiffs or defendants , may make their attorneys in the hustings in london , lib. al , f , , b. , henrie . the hustings shall be holden but once in a week , lib. al , , . henrie . inquisitions . all inquisitions to be taken before the kings ministers by men of this city , shall bee taken at s. martins le-grand , and not else-where , except the inquisitions of the eires of the tower and goal-delivery of new-gate , lib. al , a. . e. . all inquisitions of the customable payments , customes , impositions , and purprestutes , within the city shall be inquired of the citisens , and not by others ; see the words of record more at large , lib. al. , b , c. . r. . see the statute of . e. . cap. . iurisdiction of pleas . no citizen shall be impleaded out of the walles of the city of london ; but for pleas of the land , being without the city , alwayes excepted the moniers , and the kings ministers , lib , al. f. . a , . h. . inquisitions of the goal of new-gate . that the major of london for the time being shall in every commission for the goale delivery of new-gate be named one of the justices , lib. al. f. , b. . e , . iustices in london . the king is restrained by his charter , confirmed by parliament , to assign any justices in london ▪ except the justices of eire at the tower of london , and justices of goal delivery of new-gate , and for errors at s. martins to be corrected : except any things do chance within the same city , that do touch the king or his heirs , lib. al , a. . henry . kiddles , viz. wares . it is granted that all the wears of the thames , and medway shall be put down . and he that setteth up any hereafter , shall forfeit x. l. libro al folio , a. that the citizens shall remove and take away all keddels stops and wears in the waters of thames , and medway : and that they shall have all such punishments in that behalf to the king , li . al. fol. , b. . e. . liberties and free customes . free liberties and free customes used in the time of king henry . are by charter , and after by parliament ratified and granted to the city , lib. al. folio b , c. . hen. the third , and . henry . liberties and pranchises . the king granteth , and doth allow that the citisens of london , their heirs and successors , shall have their liberties , and free customes , and may use and enjoy the same , as they have done in ancient time . and also that they may record the same before the kings justices , and ministers , as they have bin wont to do any statutes or judgments to the contrary notwithstanding , lib. al. , a. b , . e. . liberties confirmed . all manner of liberties granted by king henry . are confirmed by e. . anno . lib. albo fol. . a. liberties confirmed . first , wheras in the great charter of the liberties of england , amongst other things it was ordained , that the city of london should have all their ancient liberties and customes , and that the same citizens at the time of the making of the same charter , and in the time of saint edmond the king and confessor , and william the conqueror , and of other the progenirors of king e. . had and used divers liberties and customes , as well by charters as without charters of ancient custome . of which liberties in divers eyres , and in other courts of the kings of the realm , the same citizens have bin impeached and sundry of them fore-judged , king e. . by charter , confirmat anno regni sui primo , hath granted that the citisens shall have their liberties according to the form of the great charter , and that all impediments and usurpations to them , in that behalf made , shall be revoked and disanulled , lib. albo fol. , a , b. aano primo e. . major to be presented . the lord major being chosen must be presented unto the court of exchequer , and after to the king himself , lib. albo f. . a , henry . major . that the major of london during his majoralty shall have no more offices belonging to the city , but only the office of the majoralty , nor hold any plea vicouncell within the chamber of the city , nor any other , but such as by the ancient custome of the city he as major ought to hold plea of , fleetwood recorder doth expound these words , vicounty pleas , to be such pleas as the sheriffes by the common lawes of this realm , may hold pleas of in his hundred , the which be actions of debt under . l. and of such like causes , lib. alb. fol. . b , . h. . marishall . the marshall shall not within the city , nor the portsoken by force , nor otherwise , take up any mans house , lib. alb. f. , a. , henry . markets . no market from henceforth shall be granted by the king , to be kept within . miles of this city , lib. alb. f. , a. . e. . marshalsee and clerk of the houshold . the steward of the marshalsee , and the clerk of the market of the kings house , shall nor sit nor execute their office within the liberties of this city , nor shall draw into plea any citizen out of the city , for any cause arising , or growing within the liberties of the same city , lib. albo folio , a. . e. . marchants strangers free hosts . it is commanded by charter , and parliament , that all merchants strangers comming into england , shall make sale of their merchandizes within dayes after their arrivall ; and that they shall abide and be at the table of free hosts , of this city of london , and of all other cities and towns of england , without keeping houses of societies by themselves , lib. albo fol. , b , c. . e. . mortmain . that the city and their heirs , and successors , may devise their lands as well in mortmain , as otherwise , as of ancient time they were accustomed , lib. albo folio , b. . e. . non-user . although before this time , any of the ancient liberties have not bin put in ure ; yet from hence forth it shal● be lawfull to put them in execution , lib. albo fol. , a. . e. . officers of the city . all lands or tenements without the freedom of the city , wherof any citizen is , or shall be owner , now or hereafter , which are , or shall be ministers of the city , shal be obliged to the conversation or saving harmlesse , the same city against the king and his heirs , for matters concerning their offices in like manner , as their tenements within the same city were wont to be , lib , al , folio , b , c. . e. . note by this article , that all the ministers of this city , ought to be freemen . oasts . no stranger shall be an oast , or keep oasterie for strangers , lib. al. fol. , a , b per charter , . e. . and per parliament . oasts and free oasts . that all that keep common oastery in the city , or the suburds , although they be not free , yet shall they be at all manner of charges for the maintenance of the city , as ample , as any other that be free oasts , lib. al. folio , a. b. . henry . oath . the major of london shall not be compelled to take any other oath at the exchequer , then hath bin used in the time of king edward the third , any law , statute , or ordinance notwithstanding , lib. al. folio . b , c. . r. . parliament . all the aforesaid articles , charters , grants , and ordinances , are to this place confirmed by act of parliament , in manner and form as they be before expressed , anno . r. . pleas in fairs and markets . because the citizens of london in all good and great fairs of england were wont to have wardens of themselves to hold pleas , concerning such citizens as shall have conference to the said fairs : it is granted by charter , that the same citizens shall have their wardens of their citizens , for the holding of such pleas as of ancient times they have had , excepting pleas of the land , and of the crown , lib. al. . . e. . precepts to the citizens . by parliament that is allowed to the citizens of london , not to be subject to the precepts or commandements of the constable of eng and , steward , marshall , admirall , clerk of the market , or of any other officer or minister of the king , but only to the kings commandements or precepts , which shall be made in the kings name still , and under the kings seals , and liberty , is allowed by act of parliament , soit use come ad estre devant tempes , lib. albo f. , b. . r. . presenting of the sheriffes . such sheriffes as the citizens shall make choise of , shall be presented to the king justices . and the said sheriffe shall answer to the king , or to his justices , or his exchequer , of such things as to his sheriffedome do appertain , lib. al. fol. . a , b. henry . processe and serving of processe . that no sommons , attachment , or execution , by any of the kings ministers , by writ or without writ , within the libertie of the city aforesaid , shall be made but by the only ministers of the city , lib. albo . , b. . e. . protections . the king granteth that all the protections of him and his heires , given to and for the service of the king , either to go forth , or to abide in any places of the kings service from henceforth , shall take no place in any plea of debt for any victuals taken or bought for the voyage or service ; wherof any mention is made in any such protection , nor any such protection shall be allowed for any pleas of trespasses , or contracts , made or done after the date of such protection , in such case as the plaintiffe is , or shall be a freeman of this city , lib. albo f. . anno primo r. . purveyors . that no purveyor-taker , officers , or other ministers , shall make , or take any prise or takings in the city of london , or without , of the goods of any citizen of the same city , against their wills ; except immediatly their indelayed payment be made , or else that respect of payment be therfore taken with the good will of the party , lib allbo b. . e. . purveyors or officers of the king . it is prohibited that no officer or purveyor of the king shall merchandize by himself , or by other within the said city or without , of any thing touching , or concerning his office , lib. albo fol. , b. . e. . remember how the purveyours of poultry do keep shops in london , and nothing is said against them . restitution . there is a free restitution granted , aswell by chartèr as by parliament unto the citizens of london , of all and singular their liberties and franchises , as ever any of their predecessors enjoyed the same , any non-user , or abuser , or statute-judgment , or charter to the contrary notwithstanding . and that the same citizens may enjoy the same without impeachment of the king his justices or ministers whatsoever , lib. albo . . r. . right . that equall might be done both for lands , and leases , that be within the city , viz. infraurbem , according to the ancient custome of the city , lib. albo , henry . right owner . every rightfull owner of lands , leases , gages , pledges , and debts , shall enjoy the same lawfully , lib. albo , a. . h. . sanctuaries . that the citisens shall not be otherwise charged , then they have bin accustomed , touching the scapes of such as have taken sanctuary in the church , or church-yards , lib. alb. f. . b. st. pauls . there is . l. parcell of the fee-farme abated to the city , for the liberty of st. pauls in london , lib. albo f. . a , h. . scot and lot . that freemen within the city , as such as dwell without the city , and occupie merchandize within the city , shall be subject to scot and lot with the commons of the same city , for and touching , &c , lib. alb. fol. , a. . henrie the third . seals of the king . there doth appear . hen. . that in a charter made for the putting down of kiddles or ware s. that the king did set his hand to the charter , and also his seal , the which i did never hear nor reade of in any book before this time , the words are these . quod ut firmum & stabile perseveret imperpuum putis pagine inscriptio . commun. . &c. lib. albo fol. , a . h. . seal of the city . the common seal of this city shall remain in the custody of two aldermen , and two commoners , and the same seal shal not be denyed neither to the poor nor to the rich commoner , when need shall require ; provided , that such request shall be upon reasonable causes , and that nothing shall be taken for the setting of the same seal thereto , lib. alb. f. , a. . h. . sergeants at the chamber . that no sergeant of the chamber of guild-hall , shall have any fee of the commonalty of the city , nor shall make any execution but only by the commons of the city for that purpose to be chosen , lib. alb. fol. b. . h. . sergeants at the mase . for the augmentation of the name and honour of t●● city , it is granted that our sergeants shall and may bear , and carry maces of gold , of silver , or guilded of silver , with the kings arms upon the same , within the city and middlesex , and all other places belonging to the same city ; and also when they be sent to the king his mother or children , lib. alb. fol. . a. . e. . sheriffes . the sheriffes of london shall not be distreined to make an oath at the exchequer , but only upon the yeelding up their accompt , lib. alb. fol. , a. . e. . that none of the sheriffes shall have but . clerks , and two sergeants , by reason of his office . sheriffes and their elections . it is granted to the citizens of london to make elections of their sheriffes , and after to remove them at their pleasures , anno . hen. . lib. al. fol. . a. b. sherffe . that the sheriffe of london shall be amerced in the kings court , according to the quantity of their offence , like as all other sheriffs of england have bin , lib. alb. fol. . a , lib. . . edw. . sheriffe . that the sheriffe for the time being shall commit the collection of tolls and customes belonging to the fee farm , and all publique offices to them belonging , and by them to be exercised unto sufficient persons , for whom they will answer , and that such officers as they shall appoint shall be removed upon their misbehavior , lib. alb. fol. . anno . hen. . sheriffes . that the sheriffes of this city for the time being shall have towards the farm of the same city , the full forfeiture of victuals , and other things . and also of merchandizes after the tenor of the charters to the citizens granted and made . and that from henceforth the sheriffes shall not be hindred or molested for the same against the tenor of the same charters , lib. alb. fol. . b. . e. . southwarke . the town of southwarck is granted for a fee farme unto the city , to the intent , to conserve the peace of the same town , and to suppresse fellons in that place . and this is by act of parliament and charter , lib. alb. . a. . e. . subsidies , tallages , or aids . that those that be assessed according to the custome of the city by men of their wards appointed to bee sessors by the major and aldermen , or by others to pay any tallage or aid to the king , shall not be set higher , but by the major and commons , lib. alb. fol. . b. . hen. . successors in london . the habend of the fee farm of london and middlesex , is to the citisens and their heirs . and yet it is taken , that these words heirs , do signifie their successours , lib. alb. fol. , a , b : . hen. . sureties for the sheriffes . the whole citizens of london must answer to the king , and satisfie both the fee fatm , and also all the amerciaments , if the sheriffs do make default , lib. al. f. . a , b. . henry . suites against citizens . none of the liberty of this city shall be impleaded or occasioned at the king exchequer , nor else-where by bill , xcept it be for matter , which belongs to the king or his heirs . fol. . anno . e. . at this day all our citisens do implead one another out of the city , the which is directly against our liberties , being coufirmed by parliament . taxes and tallages . that taxes and tallages for the necessity of the city by common consent or common-counsell , may be assessed and levied aswell upon rents , as other things , and aswell upon misteries , as by any other means , lib. alb. folio . b. . h. . toll . the citizens of london are discharged of toll and lastage , and of all other customes as well by land , as by seas , within the kings dominions , lib. alb. fol. . a , . hen. . tower of london . that the costable of the tower for the time being shall not either by land or water take or make any prisages of any victuals , or other things whatsoever , of the people of the same city ; nor of any others comming or going towards or from the said city , nor by any manner of means , shall arrest or cause to be arrested any ships , vessels , or boats bringing to the said city any victuals or any other such goods , lib. alb. fol. . a. . e. . the constable of the tower of london shall not take any thing for the suffering of wares in the thames or medway , lib , albo fol. . . h. . the constable of the tower of london , in the default of the barons of the exchequer , being absent from westminster , and also of the king at such time as the major ought to be polluted , must take the oaths of the major and of the sheriffes without the tower gates , lib. albo fol. , b. anno . h. . warres . that the citizens from henceforth shall not be compelled to go or send to the warres out of the city , lib. alb. f. , a. . e. . weights and measures . that the weights and ballances amongst merchants , by the which any profit doth grow , and the correction of the same doth belong to the commonalty of this city . and that they shall be in the custody of approved and sufficient men , expert in the same office , being chosen by the commons . witherman . if any toll or other custome be taken from any citizen of the kings dominions the sheriffs of london shall at london take pledge or witherman , lib. alb. f. , b. . henry the third . wines sold by retaile . that no merchant that is not free of this city shall sell any wines by retail within the same city , lib. alb. fol. . a , . henry the third . wines and victuals . by charter and by parliament , is granted that the lord major and aldermen for the time being , shall have the rule and government of the vintners , viz. of all manner of wines which shall be sold within the same city , and of all manner or victuals , as well sellers of fish , as of all other , dwelling within the same city , and to the same bringing any victuals there to be sold , lib. alb fol. , b. . r. . note , how that the vintners of this city did exhibit a bill to the counsell at greenwich , termino pasche . an. , eliz. regni , affirming , that they were not under the government of the major and aldermen ; the which i learn to be drawn by one land , an attorney of the guild-hall . hereafter do ensue divers ample and most beneficiall charters , granted by king hen. . e. . and king hen. . but these charters are not confirmed by parliament , as the other charters were . note , that the charter of hen. and e. . are all one , with little alteration . beer-brewers . the correction of the beer-brewers , and of the measurages likewise is granted to the city , lib. albo f. b , e. . hen . note , at this time there was beer-brewers in england . certioraries for recognisances . it is granted , that when a certiorary is sent for any indictment of fellony , trespasse , extortion or any other offence , or for any recognisance for the peace broken , that we shall not send the record it self , but only the tenors of the same , and that shall suffice , lib. albo , . b. . henry . commission of the peace , the commission of the peace is at large set down , with all the articles that are to be inquired , lib. albo . . . h. . confirmation . king henry , anno . did grant unto the city of lond●● most large and ample ratification of all and singular their liberties , franchises , and customes , and all such like things expressed in any of their charters whatsoever they were , lib. albo . a. confirmation . king h . by act of parliament , and a special charter , dated the , ber. anno . hath also confirmed the liberties aforesaid , lib albo folio , a. confirmation all and singular . all and singular the aforesaid liberties are most amply confirmed by a great charter , made by king h , . in the first year of his reign ; but they are not by him confirmed by parliament , but by charter . and this is the charter that the commons of this city do use to call the great charter of london , lib. alb. fol. , a , b. . primo h. . elections of officers . that the cirisens shall have the choice of all under-sheriffes , clerks , bayliffes of sheriffes , for whom they will answer for aswell in the county of middlesex , as within the city of london : in which grant , there is a saving or proviso for the sheriffes of london , for the right , &c. lib. alb. , b , c , . h. . exemption for the aldermen . it is granted , that the aldermen of this city shall not be put in assizes , juries , attaints , recognitions , or inquisitions , although the king himself be party ; nor they shall be without the liberties of the city , collectors , or assessors of tenths and fifteens , lib. alb. f. , a , b. fines and amerciaments . all fines , amerciaments , issues forfeited , redemptions , forfeitures , penalties of all offences inquirable by the commissions of the peace , are granted to the citizens of london lib. alb. f. , a , . h. . and in the same place the premises are also granted , if they bee forfeited before the justices in the pleas of the crown , or before any other justices , or minister whatsoever , ibid. foren bought , and foren sold . that the forfeiture of foren bought , and foren sold , shall belong to the major and commons of this city , without any accompt to be therfore yeelded , lib. alb. fol. , b , c. this article is most largely and beneficially set forth in the book . gates and posterns . all the gates and posterns of this city , and the custody of the same are granted unto the city , lib. alb. f. . fol. . . h. . ganger . the office of the ganger-ship is granted to the city of london , with all the fees , profits , and enrolements to the same belonging , lib. alb. f. . b. . h. . iustices of peace . that the major for the time being may nominate to the chancellor of england , the names of two aldermen , the one to be a justice of peace in surrey , and the other in middlesex , lib , al. fol. , b. . h. . iustices of the peace . that the major and the recorder , and all the aldermen that have bin majors shall be justices of peace in london , and that the major and the recorder shall bee two of the quorum , lib. al. , b , c. henry . mortmain . the king granteth license to the commonalty to purchase lands and tenements , to the value of . marks by the year , the statute of martmain , or any other thing to the contrary notwithstanding , lib. albo fol. , a , b , c. . e. . non-user and abuser . non-user and abuser of the liberties are by the king pardoned , lib. alb. . anno . h. . notunda . all the aforesaid matters expressed in the aforesaid charter , . h . lib. alb. , , , , , and , are by like charter granted again by . e. . lib. albo fol. , , , . packer . the offices and guift of the same , viz. of the packer and survey or , ships of all measures , weights , and of merchandizes , and of the garblers office , and wine-drawers , and the collection of all manner of victuals , and all such like offices do belong to the lord major and his disposing , lib. alb. folio , a. b. . h. . recordator . that the recorder shall or may ore-tenus , that is to say , by open speech , record and certifie the customs , being traversed . and his certificate shall be as strong in the law as the verdict of men , lib. albo fol. , a. . h. . recognizances . the forfeiture of recognizances for the breach of peace or good abearing , is also granted to the city , lib. alb. f. . . h. . seisure of the liberties . i find that king r. . anno . regni sui , did by verture of a statute , . e. . cap. , the which statute in king r. days , was by a bye-word , flagellum comit london , that is , the whip and scourge of the city of london , the statute shall be hereafter set down at large . i say by this statute the king very easily found a quarrell against the city , and did by commission ceize the liberties of the said city . the fault was for that the major and aldermen of the city did not correct nor punish , and this was all . but after in anno . and . the same king restored the liberties again to the said city , lib , albo f. , a , b , c. search . the generall search of survey government , correction and permission of all people , within this city aswel , denizens and strangers in their sellings cuttings , workings , measurings , weighings , and in all and singular their other doings , done not only by custome , but also by charter , belong to the major of london for the time being , lib. al fol. , a , b , c , d. . h. . this matter especially is most excellently well set down in the said book . and king h. . hath granted for him his heirs and successors that neither the kings of this realm , nor any other person shall interrupt the major of london in the due execution and exercising of the premises : if this charter were well looked unto , then enquire of what force all and singular these charters are of , to whom the king hath granted to be searcher , not only over their own companies , but also over others . as the girdlers do attempt to search the habberdashers , and clothworkers , the black-smiths do attempt to search the iron-mongers , and such like others . southwarke . a large charter is granted for the liberties of southwark , and for correction of offences there , and a view of franck-pledge with arrests , and to bring the offendors to new-gate . and to have as ample liberties in southwark , as the king had , lib. albo fol. , b , c , d , e , h. . toll . the offices of the gathering of the toll , and of the custome in cheap , billings-gate , and smithfield , is granted to the city , lib. alb. , b. . h. . treasure trove . treasure-trove , wait and fellons , goods , and for stallers of victuals , and regrators , both in london and upon the thames , are granted to the city , lib. alb. f. . a , . h. . tronage . tronage , that is to say , the weighing of lead , waxe , pepper , allom , madder , and of such like merchandize , are granted to the city , lib. albo f. , b. waste-grounds . all the waste ground , or common grounds pur-prestures , and approvements , and the rents reserved of the same are granted to the city , aswell in the land , as in the thames , lib. alb. fol. , . h. . wools , leaden-hall . the tronage or weighing of wools shall be at leaden hall , which was wont to be at westminster , lib. alb. fol. . . e. . finis . the institutions of the law of scotland by sir george mackenzie ... mackenzie, george, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the institutions of the law of scotland by sir george mackenzie ... mackenzie, george, sir, - . [ ], p. printed by john reid, edinburgh : . first edition. includes legal citations. reproduction of original in cambridge university library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- scotland. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - olivia bottum sampled and proofread - olivia bottum text and markup reviewed and edited - pfs batch review (qc) and xml conversion edinburgh , march . . it is ordered by the lords of his majesties most honourable privie council , that none shall re-print , or import into this kingdom , the book intitutled , the institutions of the laws of scotland ; by sir george mackenzie of rosehaugh , his majesties advocat , for the space of nineteen years , after the date hereof , without the consent of the author ; under the pain of confiscation of the whole copies to john reid printer of the said book . extracted by me pat. menzies , cls. sti. cli. the institutions of the law of scotland by sir george mackenzie , of rosehaugh , his majesties advocat . edinburgh , printed by iohn reid , anno dom. m dc lxxxiv . to the earl of middleton , my lord , the natural way of learning all arts and sciences , is to know , first , the terms used in them , and the principles upon which they are founded , with the origins of the one , and the reasons of the other . a collection of these terms and principles is in law called , institutions ; and the natural and easie way of writing these , is by going from the first principle to a second , and from that to a third : the admir'd method of euclid in his elements , though much neglected by all , who have written institutions of law ; in which , not onely many things unnecessary are insert , as almost all the third book of justinians institutions ; the differences betwixt the sabiniani and proculiani , &c. many fundamental titles are ommitted , as all the matter of restitutions : and many things are taught in the first book , which cannot be understood till the fourth be read . i have therefore in these my institutions treated nothing save terms , and principles , leaving out nothing that is necessary , and inserting nothing that is contraverted ; in all which i have proceeded , building alwayes one principle upon another ; and expressing every thing in the terms of the civil law , or in the stile of ours respectively ; so that if any man understand fully this little book ; natural reason , and thinking , will easily supply much of what is diffused , through our many volums of treatises , and decisions ; whereas the studying those , would not in many years give a true idea of our law ; and does rather distract than instruct . and i have often observed , that moe lawyers are ignorant for not understanding the first principles , than for not having read many books ; as it is not the having travelled long , but the having known the way , which brings a man to his lodging soon , and securely . my lord , you observ'd very justly to me , that institutions are a grammar ; and therefore , ( which is a great encouragement to all readers of institutions , ) they who understand the institutions of any one nation , will soon learn the law of any other : for though terms , forms , and customs differ ; yet the great principles of iustice and equity are the same in all nations . i send mine therefore to your lordship , not because you need them , but that you may judge , if my institutions , will be able to justifie your parallel . nec phoebo gratior ulla est , quam sibi quae vari praescripsit pagina nomen . the index of the titles . part i. title i. of laws in general page title ii. of iurisdictions , and iudges in general page title iii. of the supream iudges , and courts of scotland page title iv. of inferiour iurisdictions and courts page title v. of ecclesiastick persons page title vi. of marriage page title vii . of minors , and their tutors and curators page part ii. title i. of the division of rights , and the several wayes of acquiring property and dominion page title ii. of the difference betwixt heritable , and moveable rights page title iii. of the constitution of heritable rights , by charter and seasin page title iv. of the several kinds of holding title v. of the casualities due to the superiour page title vi. of the right which the vassal acquires by getting the feu page ● title vii of transmission of rights by confirmation , and of the difference betwixt base and publick infeftments page ● title viii . of redeemable rights page ● title ix . of ser●itudes page ● title x. of ●eynds page ● title xi . of inhibitions page ● title xii . of comprysings and adjudications page ● part iii. title i. of obligations and contracts in general page title ii. of obligations by write , or word page title iii. of obligations and contracts , arising from consent , and of accessory obligations page title iv. of the dissolution or extension of obligations page title v. of assignations page title v. of arr●stments and poi●●ings page title vi. of prescriptions page title vii . of succession in heritable rights page title viii . of succession in movea●●es page title ix . of ●●st heir and bastards page part iv. title i. of actions page title ii. of probation page title iii. of sentences and their execution page title iv. of crimes page the institutions of the law of scotland . first part . tit. i. of laws in general . justice , is a constant and perpetual will , and inclination to give every man what is due to him . law , is the science which teacheth us to do justice . this law , in a large acceptation , is divided , in the law of nature , law of nations , and the civil , and municipal law of each particular countrie . the law of nature comprehends those dictats , which nature hath taught all living creatures , instances whereof are self defence , education of children : and generally , all those common principles , which are common to man , and beasts , and this is rather innate instinct , than positive law. the law of nations , is peculiar to man-kind onely , dictated by right reason , and is divided into the original and primarie law of nature , that flows from the first and purest principles of right reason ; such as reverence to god , respect to our country , and parents . and the secundarie , and consequential law of nature , consisting of these general conclusions , in which ordinarly all nations agree , and which they draw by way of necessary consequence , from those first principles . and under this part of the law of nations , are comprehended , the obligations arising from promises , or contracts , the liberties of commerce , the ransoming of prisoners , securitie of ambassadours , and the like . civil , or municipal law , are the particular laws , and customes of every nation , or people , who are under one soveraign power . the romans , having studied with great exactness , the principles of equity , and iustice. their emperour iustinian , did cause digest all their laws into one body , which is nowcalled by most polit nations , ( for its excellency ) the civil law ; and as this civil law is much respected generally , so it has great influence in scotland , except where our own express laws , or customes , have receded from * it . and by the common law in our acts of parliament is meant the * civil law. the popes of rome , in imitation of the civil law , made a body of law , of their own ; which , because it was compiled by church men , it was called , the cannon law ; and though it has here no positive authoritie , as being compiled by private persons , at the desire of the popes , especially since the reformation ; yet our ecclesiastick rights , were settled thereby before the reformation : and because many things in that law , were founded upon material justice , and exactlie calculated for all church men ; therefore , that law is yet much respected among us , especially in what relates to conscience , and ecclesiastick rights . our municipal law of scotland , is made up partly of our written , and partly of our unwritten law : our written law comprehends , first , our statutory law , which consists of our statutes , or acts of parliament . secundo , the acts of sederunt , which are statutes , made by the lords of session , by vertue of a particular act of parliament , * impowering them , to make such constitutions as they shall think fit , for ordering the ●rocedur , and forms of admini●trating justice , and these are called acts of sederunt ; because they are made by the lords sitting in judgement ; but are not properly laws , the legislative power being the kings prerogative . tertio , the books of regiam majestatem , which are generally looked upon as a part of our law , and they , and the leges burgorum , and the other tractates , joyned by skeen to them , are called the old books of our law , by many express acts of parliament * . tho the books of regiam majestatem , were originally but the works of one private lawyer , writing by way of institution , and are now very much abrogated by custome . our unwritten law , comprehends the constant tract of decisions , past by the lords of session , which is considered as law ; the lords respecting very much their own decisions ; and though they may , yet they use not to reced from them , except upon grave considerations . secundo , our ancient customes , make up a part of our unwritten law , which have been universally received among us . the tacite consent of the people , operating as much in these , as their express consent does , in making laws ; and such is the force of custome , or consuetude , that if a statute , after long standing has never been in observance , or having been , has run in desuetu●e ; consuetude prevails over the st●●●●e , till it be renewed either by a succeeding parliament , or by a proclamation from the council : for though the council cannot make laws , yet they may revive them . generally , all laws should look foreward † though declaratory laws regulat what is past , since their design is , to declare what was law prior to the statute , and to direct iudges , how to decide in cases that needed the decision of a parliament . laws should command , not perswade ; and though the rubrick ( or title ) and narrative of the statute , may direct a doubting iudge , yet if the statutory words be clear , they should be followed in all cases . all laws should be so interpreted as to evite absurdities ; and as may best agree with the mind of the legislator , and analogie , or general design of the common law. correctory laws ( so we call these which abrogate , or restrict former laws ) are to be strictly interpreted , for we should reced as little as can be from received laws . honourable laws are to be extended , and the paritie of reason , often prevails with our judges , to extend laws to cases , that are founded on the same reason , with what is expresly determined by the statute . tit. ii. of iurisdiction , and iudges in general . having resolved to follow iustinians method , ( to the end , there may be as little difference found , betwixt the civil law , and ours , as is possible : and that the reader may not be distracted , by different methods ) i do resolve , first , to lay down what concerns the persons of whom the law treats : ●at ●do , what concerns the things themselves treated of , such as rights , obligations , &c. tertio , the actions whereby these rights are pursued , which answers to the civilians , objecta juris , viz. personae , res , & actiones . the persons treated of in law , are either civil or ecclesiastick , the chief of both which are iudges , with whom we shall begin . and for the better understanding of their office , it is fit to know , that iurisdiction , is a power granted to a magistrate , to cognosce upon , and determine in causes , and to put the sentence or decreet to execution , in such maner as either his commission , law , or practice does allow . all iurisdiction flows originally from the king * so that none have power to make deputs , except it be containd in their commission ; and if a depute , appoint any under him , that sub-depute is called properly a substitute ; and every iudge is answerable for the malversation of his depute . iurisdiction is either cumulative , or privative ; cumulative jurisdiction , is when two judges , have power to judge the same thing ; and generally , it is to be remembred , that the king is never so denuded , but that he retains an inherent power , to make other judges , with the same power that he gave in former * commissions ; and thus he may erect lands , in a regality , within the bounds of an heritable sheriff-ship , and burghs royal , within the bounds of a regality ; and these bounds , within which , a judge may exerce his commission , is called his territory ; so that if any judge exercise iurisdiction , without his territory , his sentence is null : and among those who have a cumulative iurisdiction , he who first cites , can only judge ; and this is called , jus praeventionis . privative iurisdiction , is when one judge has the sole power of judging , exclusive of all others ; such power have the lords of session , in judging of all competitions , amongst heritable rights , and here there can be no prevention . iurisdiction , is founded to any judge , either , because the defender dwels within his territory , which is called , sortiri forum ratione domicilij : or secund● because , the crime was committed within his territory , which is called ratione delicti ; or tertio , if the person pursued , have any immovable estate , within his territory , though he live not within the same , he may be pursued by any action to affect that estate , which is called , sortiri forum ratione rei sitae . a iurisdiction , is said to be prorogate , when a person not other wayes subject , submits himself to it , as when he compears before an incompetent judge , and propons defences . all judges with us , must take the oath of allegiance , * and the test ; ‡ whereby they swear , to maintain the government of church and state , as it is now established ; and an oath de fideli administratione , before they exerce their office , and no excommunicate person , nor rebell against the government , can judge by our law. if a person be pursued before a judge , who is not competent , he may complain to the lords of session , and they will grant letters of advocation , whereby they advocat , that is to say , call that cause from the incompetent judge , to themselves ; and if after the letters of advocation are intimat to that judge , he yet proceed , his decreet will be null , as given spreto mandato . iurisdiction is either supream , inferior , or mixt : these courts are properly called supream , from whom there is no appeal to any higher iudicatory , such as the parliament , privy council , lords of session , the criminal court , and exchequer : inferior judges are such ? whose decreets , and sentences are lyable to the reviewes of the supream courts , as sherriffs , stewards , lords of regality , inferior admirals , and commissars , magistrates of burghs royal , barrons , and iustices of peace . mixt iurisdiction , participats of the nature , both of the supream , and inferior courts ; such a jurisdiction have the high admiral , and commissars , of edinburgh . both which are in so far supream ; that maritim affairs , and confirmations of testaments , must come in and be tabled , before the high admiral , and commissars of edinburgh , in the first instance . as also , they both , can reduce the decreets of inferior admirals , and commissars ; but seeing their decreets are subject to the review , of the lords of session , they are in so far inferior courts . no inferior iudge , can judge in the causes of such as are cusin-germans to him , or of a nearer degree , either of affinity , or consanguinity ; but there is so much trust reposed in the lords of session , that by a special * statute , they can only be declined incases relating to their fathers , brothers , sons , nephews , or uncles ; which by a late statute * , is likewise extended to the degrees of affinity , and to the lords of privy council , and exchequer , and the commissioners of iusticiary , and to all other iudges within the kingdom . the members of the colledge of iustice , have this priviledge , that they cannot be pursued before any inferior iudge ; and if they be , the lords will advocate the cause to themselves . tit. iii. of the supream iudges , and courts of scotland . the king , is the author , and fountain , of all power , and is an absolute prince , having as much power , as any king , or potentate , whatsoever , * deryving his power from god almighty alone * , and so not from the people . the special priviledges that he has , are called , his prerogative royal ; such as , that he only can make peace , or warr , call parliaments , conventions , convocations of the clergy , make laws * ; and generally all meetings called without his speciall command are punishable * , he only can remit crimes , legittimate bastards , name iudges , and councilors , give tutors dative , and naturalize strangers ; and is supream over all persons , and in all causes , as well ecclesiastick as civil * . the parliament of old , was only the kings barron court , in which all free-holders were oblidged to give sute , and presence in the same manner , that men appear , yet at other head courts . and therefore , since we had kings before we had parliaments , it is rediculous to think , that the kings power flowed from them . the parliament is called by proclamation , now upon fourty dayes , tho it may be adjourned upon twenty , but of old , it was called by brieves , out of the chancellary . it consists of three estates , viz. the arch-bishops and bishops ; and before the reformation , all abbots , and mitred-priors , sat as church men . secundo , the barrons , in which estate are comprehended , all dukes , marquesses , earles , viscounts , lords , and the commissioners , for the shires ; for of old , all barrons , who held of the king , did come ; but the estates of lesser barrons not being able to defray this charge , they were allowed to send commissioners for every shire . * and generally , every shyre sends two , who have their charges born by the shyre . tertio , the commissioners for burghs royal , each whereof , is allowed one and the town of edinburgh two ; though all the three estates must be cited , yet the parliament may proceed , albeit any one estate were absent , or being present would disassent . the legislative power is only in the king , and the estates of parliament only consent , and in parliament , the king has a negative voice , whereby he may not only hinder any act to pass , but even any overture to be debated . the acts of parliament must be proclaimed upon fourty days , that the lieges may know them * . to secure the crown against factions , and impertinent overturs in open parliament : our parliaments choose before they proceed to any bussiness , four out of each state , who with the officers of state determine what laws , or overturs , are to be brought in to the parliament ; and they are therefore called , the lords of articles . we have another meeting of the three estates , called the convention of estates , which is now called upon twenty days , and proceeds in the same way that the parliament does , diffreing only from it , in that the parliament , can both impose taxations , and make laws ; whereas the convention of estates , can only impose , or rather offer taxations , and make statutes for uplifting those particular taxations . but can make no laws . and of old , i find by the registers of the conventions , ( the eldest whereof now extent , is in anno . ) that the conventions of estates consisted , of any number of the three estates , called off the streets , summarly by the king ; and yet they cryed down , or up money , and judged processes , which now they do not . the privy council is constituted by a special commission from the king , and regularly their power extends to matters of publick government ; in order to which , they punish all ryots , for so we call breach of the peace . they sequestrate pupills , gives aliments to them , and to wives , who are severely used by their husbands , and many such things , which require such summar procedour , as cannot admit of the delays necessary before other courts ; and yet if any of these , dipp upon matter of law , ( for they are only iudges in facto , ) they remit the cognition of it to the session , and stop till they hear their report . the council delay criminal executions , and sometime change one punishment into another , but they cannot remit capital punishments ; they may also adjourn the session , or any other court : it has its own president , who preceeds in the chancellours absence , and it has its own signet and seal : all who are cited to compeat there , must be personally present , because , ordinarly the pursuer concluds , that they ought to be personally punished . all dyets there are peremptor , all debat is in writ , no advocat being allowed to plead , because the council only iudges in matters of fact . the lords of council and session , are iudges in all matters of civil rights ; of old , they were chosen by the parliament , and were a committy of parliament : but the present modell was fixt and established by king iames the fifth , after the modell of the parliament of paris * . of old it consisted of seven ecclesiasticks , and seven laicks and the president was a church ▪ man ; but now all the fifteen are laicks . and there sits with them four noble — men , who are called extraordinarie lords and were allowed to sit to learn , rather then decide ▪ but now they vote after the ordinary lords . all the lords are admitted by the king ▪ and by statute cannot be admitted , till they be twenty ▪ five years of * age , and excep● they have a lib. or chalders of victual in yearlie rent . nine are a quorum . crimes of old , were judged by the iustice general , iustice clerk , and two iustice deputes ; but now five lords of session , are joyned to the iustice general , and iustice clerk , and they are called the commissioners of justiciary ; because , they sit by a special commission only : four of which number make a quorum in time of session , three in time of vacance , and two at circuit courts * . the exchequer , is the kings chamberlain , court * wherein he judges what concerns his own revenues ; it consists of the theasurer , ( in whose place are sometimes named commissioners of the theasury , ) the theasurer depute , and as many of the lords of exchequer , as his majestie pleases . the high admiral , has a commission from the king , to judge in all maritime affairs , not only in civil , but also in criminal cases , where the crime is committed at sea , or within flood-mark ; nor can the lords of session advocat causes from him * ; tho they can reduce his decreets , as he does the decreets of all inferior admirals , or admiral deputes , for many heritors are constitute admirals , within themselves , by a right from the high admiral , since his gift , or from the king before it . tit. iv. of inferior iurisdictions , and courts . the sherriff , is the kings chief and ancient officer , for preserving the peace , and putting the laws in execution * , he has both a civil and criminal iurisdiction , and his commission is under the great seal ; he is obliged to raise the huy and cry after all rebels , and to apprehend them when required : to assist such as are violently dispos●est : to apprehend such as say mass , or trouble the peace , and take caution for their appearance * : he nor no inferior iudge , can hold courts in time of vacance , in civil cases , without a dispensation from the lords of session ; but in criminal cases , he needs no dispensation , because crimes should be instantly punished . he is iudge in all crimes , except the four pleas of the crown , to wit , murder , fir● rasing , robery , and ravishing of women * ; but murder he can judge , if the murderer was taken with red-hand , that is to say , immediately committing the murder ; in which case , he must proceed against him within three suns ; and in theft , he may judge , if the thief was taken with the fang . the shireff , is also judge competent , to punish bloodwits , for which he may syne in pounds scots ; but no higher , and for contumacy , he can fine no higher than . pounds . a lord of regality , is he who has the land whereof he is proprietar or superior , erected with a iurisdiction , equal to the justices , in criminal cases , and to the shirreff , in civil causes ; he has also right to all the moveables of delinquents , and rebels , who dwell within his own iurisdiction , whether these moveables be within the regality , or without the same ; and because he has so great power , therefore no regality can legally be granted except in parliament † . the lord of regality , has also by his erection , power to repledge from the sherriff , and even from the iustices in all * cases except treason , and the pleas of the crown , that is to say , to appear , and crave ; that any dwelling within his iurisdiction , may be sent back to be iudged by him , and he is obliged to find caution , that he shall do justice , upon the malefactor whom he repledges ▪ within year and day , and , the caution is called cul ▪ reach * . the stewart , is the kings sherriff , within the kings own proper lands , and these were erected , where the lands had been erected , before in earledoms , or lordships ; for else the king appointed only a baillie in them , and these iurisdictions are called bailliaries , the baillies of the kings proper lands having the same power with the sherriff . and all these , viz. the sherriff , the stewart , and the lord of regalitie , proceed in their courts after the same way , and each of them , has a head burgh , where they hold their courts , and where all letters must be executed and registrate . the prince of scotland has also an appange , or patrimony , which is erected in a iurisdiction , called the principality . the revenues comes in to the exchequer , when there is no prince ; but ▪ when there is one , he has his own chamberlain . iustices of peace , are these who are appointed by the king , or privy council , to advert to the keeping of the peace , and they are judges to petty ryots , servants fies , and many such like , relateing to good neighbour-hood , exprest in the instructions , given them by the parliament * and are named by the council ; allbeit , be the foresaid statute , the nomination is to be by his majestie , and his royal successors , which the king has now remitted to the privy council . the iustices of peace do name constables , within their own bounds , from six months to six months ; their office is , to wait upon the iustices , and receive injunctions from them , delate such ryots and crimes to the iustices , as fall under their cognisance , apprehend all suspect persons , vagabounds , and night walkers , as is at length contained in their injunctions , given them be the foresaid act. every heritor may hold courts for causing his tennents pay his rent ; and if he be infeft , cum curijs , he may decide betwixt tennent and tennent in small debts , and may judge such as commit blood on his own ground ; tho his land be not erected in a barronie ; but if his land be erected in a barronie , ( which the king can only do : ) he may ( like the sherriff ) unlaw for blood-wits , in lib. and for absence in . and if he have power of pit and gallows , he may hang and drown in the same manner as the sherriff can . tit. v. of ecclesiastick persons . since the reformation , the king is come by our law in place of the pope * , and all rights to kirk-lands , must be confirmed by him , else they are null ; * . his majestie only can call convocations of the clergie ; ( for so we call our national assemblies * ) and his commissioners sits in them , and has a negative . we have two archbishops , and twelve bishops , and they are thus elected , the king sends to the chapter a conge de eslire ; ( which is a french word , ) signifying a power to elect , and with it a letter recommending a person therein named , and the chapter returns their electing : whereupon the kings grants a patent to the persons , and a mandate to the archbishop , or bishops , to consecrate him : both which pass the great seal * . the archbishops and bishops , have the sole power , of calling synods within their own diocies * , and in these , they name the brethren of the conferance : who are like the lords of articles in the parliament , and by their advice the bishops , depose , suspend , and manage . bishops have their chapters , without whose consent or the major part , the bishop cannot alienate * , which major part , must sign the deeds done be the bishops ; and it is sufficient if those of the chaper , sign at any time even after the bishop ; but it must be in his lifetime : nor are minors , or absents , counted ; and one having two benefices , has two votes ; but the appending of the seal , is by special statute , declared to be sufficient in deeds done be the archbishop of st. andrews , without the subscriptions of the chapters * . a person or rector ecclesi●e , is he who is presented to the teiths , jure proprio ; but because of old , parsonages were bestowed on monastries , therefore they sent vicars , who served the cure for them ; and who got a share of the stipend , for their pains , either ad placitum ; and they were called simple vicars , or for life , and they were called perpetual vicars . and after the reformation , the churches , which so belonged to them continued vicarages still , the titular , who came in place of the convent , retaining the right to the parsonages duties . there were in time of poperie , collegiat kirks built , and doted by kings , and great men , for singing of mass , which were governed by a provost , and some for singing , who were called prebends ; and because , some parishes were wide , some were allowed , to build a chapel for their private devotion ; and since the reformation , these chaplanaries , and prebendaries , are allowed to be bestowed by the patrons , upon bursers in colledges , notwithstanding of the foundations * . for understanding all these , it is fit to know ; that the primitive church , either to invite men to build , or dote , or to reward such , as had , did allow such as either had built , or had bestowed the ground whereon to build , or had doted a church , already built , to present alone if , they were the only benefactors , or by turns , if there were moe , and they were called patrons , or advocati , ecclesiarum according to that , patronum faciunt , dos , aedificatio , fundus . when a church vaikes , the patron must present within six months , a fit person to the bishop ; else the right of presentation falls to the bishop , jure devoluto ; * but if the bishop refuse to admit and collate the person presented , the patron must complain to the archbishop , and if he also refuse , or delay , the privy council will grant letters of horning against the bishop , to receive the person presented * , and during the vacancy upon that refusal , the patron may retain the vacant stipends . upon this presentation the bishop causes serve an edict , on nine dayes ; wherein all persons are after divine service , advertised , to object , why , such a man should not be admitted to the benefice ; and if none object , the bishop confers the church and benefice upon the person presented ; and this is called a collation , after which , the bishop causes enter him , who is so collated , by causing give him the bible , and the keyes of the church , and this is called institution , presentation , gives only jus ad rem , and institution , jus in re , and is as a seasme . if the bishop be patron himself , he confers pleno jure ; and the presentation , and collation , are the same : bishops also have mensal churches , so called ; because , they are de mensa episcopi , being a part of his patrimony , in which he serves by his viccars , and plants as diocessian bishop ; and if a town , or paroch , resolve to make a second minister , when they are not patrons , he is called , a stipendiary minister , and he is collated , and instituted also ; but the patrons presentation is sufficient in prebendaries , and other benefices , which has not curam animarum ; and that without the necessitie of collation , or institution , the bishop having no other interest in the benefices , but in so far as they concern the cure of souls . by act of parliament , all ministers must have a competent stipend , not below eight chalder of victual , or . merks or above . merks or . chalders of victual : ( except there be just reason to give less ) * together with a manse and gleib . the manse , a manendo , is the place where the minister is to dwell , the gleib , from gleba terra , is a peece of land for corn and fother to his beasts : if there was a manse of old belonging to the parson , or viccar , the minister has right to it ; if there was none , the parochiners must build one , not exceeding lib. and not beneath merks * , at the sight of the bishop of the diocie , or such ministers as he shal appoint , with two or three of the most discreet men in the paroch : as also the heritors are lyable to repair the manse ; but the present incumbent is obliged to leave it , in as good condition as they gave it to him * . the ministers glieb , is to comprehend acres of arrable land , or sixteen sowms-grass , where there is no arrable land , which is to be designed out of the lands , which belonged of old to abbots , priors , bishops , friers , or any other kirk ▪ lands within the parish * with freedom of foggage , pasturage for a horse , and two cows , fewel feal , and divot , which gleibs are to be designed be ministers , named by the bishop , with the advyce of two of the most honest and godly of the parishoners , and the designation is to be signed be the designers * . if a bishop or minister , be consecrated , translated , or entered , to his benefice , before whitsonday ; he has right to the whole years fruits , because they are then presumed to be fully sown , and if he be deposed or transported before whitsonday , for that same reason he hath no part of that year ; but if he serve the cure a while after whitsonday , and be transported or deposed before michalmas , he hath the half of that years stipend ; and if he serve till after michalmas , he hath the whole years . so that the legal terms of benefices are whitsonday , at which time the sowing is ended ; and michalmas , at which time the fruits are reaped . they have likewise right to the annat after their death , which was introduced by the cannon law , and by a special statute with us , is declared to be half a years rent of the benef●ce , or stipend , over and above what is due to the defunct , for his incumb●ncie ; so that if he survive whitsonday , he has the half of that year for his incumbencie , and the other half a annat , and if he survive michalmas , he has the half of the next year for his annat . there is a committie of parliament , alwayes sitting , called the commission for plantation of kirks , or valuation of teinds , ( consisting of so many of every estate of parliament ; ) who have power to modifie , and augment ministers stipends , and to unite and disjoyn churchs , &c. whose decreets ; because they are a commitie of parliament cannot be reduced by the session , or any other inferior iudicature . the primitive christians remitted the cognition of all cases that related to religion , as the matters of divorce , bastardi● , the protection of dying mens estates , to their bishops ; or such as they imployed , under them , who were called officialls , and with us are called commissars ; and are called therefore iudices christianitatis : and they are therefore the only judges in divorce ; because , it is the breach of a vow : and to scandale , because , it is an offence against christianity , and of teinds and benefices ; because , these are the patrimony of the church : and of all matters referred to oath , ( if the same exceed not lib. scots ) because , an oath is a religious tye . every bishop has his commissar , who has his commission from the bishop only ; and this extends no further , than the constituents diocy . but the archbishop of st. andrews , has power to name four commissars , who are called the commissars of edmburgh ; because , they sit there , and they only are iudges to divorce upon adultery , and can only declare marriages null , for impotencie and to bastardy , when it has any connexion with adultery , or marriage : and they only may reduce the sentences of all inferrior comm●ssars * , though the lords of session may reduce even their decreets and sentences ; they have instructions from the king , which are their rule . and these are likewise recorded in the books of sederunt of session ; tit. vi. of marriage . having spoken fully of persons , at they are considered in a legal sense ; we shall now treat of marriage , which is the chief thing that concerns persons , and their state in law. maarriage is def●ned to be , the co●●uncto●n of man and wife , vowing to live inseparably together , till death . by conjunction ▪ ●ere , consent is understood , n●m cons●nsus , non ●oactus , facit matrimonium . consent , is either de futuro or de presenti , consent de futuro , is a promise , to solemnize the marriage , which in law , is called spousalia ; and this is not marriage ; for either party , may resile , rebus integris , notwithstanding of the interveening promise , or espousals , consent , de presenti , is that in which marriage does consist ; and therefore , it necessarly follows , that none can marry , except these who are capable to consent , and so idiots , and furious persons , durante furore , cannot marry , nor infants , who have not attained the use of reason : that is , when they are within the years of pupillarity ; which is defined in law , to be years , in males , and in foemales , nisi malitia suppleat aetatem . the law , in decencie , requires the consent of parents , though a marriage without it , is valid , if the persons married be capable of consenting . by our law , none can marry who are nearer relations than cousin germans ; which is suitable to the iudicial law , of moses * , and the same degrees porhibited in consanguinity are also forbidden in affinity . marriage , is either regular , and solemne , or ●landestine ; the regular way of marrying , is , by having their names proclaim'd in the church , three several times , which we call proclamation of banns , without which , or , a dispensation from the bishop , the marriage is called a clandestine marriage ; and the parties are finable for it ; but the marriage is still valid * ; cohabitation also , or dwelling together , is presum'd to be marriage † , if the parties were repute , man and wife , dureing their lifetime , and so the children are not bastards ; though they cannot prove that their parents were marryed ; unless it be clearly prov'd that they were not married . from the coniugal society , arises , the communion of moveable goods betwixt man and wife ; but the administration thereof during the marriage is solly in the husband ; which reaches even to alienation , and disposing upon the moveables , at his pleasure though they be not dispon'● to him by her ( marriage , being a legal assignation , as to thi● effect ) but he has no further right to her heritage , save that he has right to the rents of it , and to administra●● and manage it , during th● marriage , and this is called ius mariti , and is so inseparable from the qualitie of ● husband ; that he cannot b● our law , renounce his pon●● of administration , so that the● are both domini , by this communion ; but the husband h●● a dominium actu , and th● wife only habitu . the husband is lyable dureing ●he marriage to pay her moveable ●ebts ; but how soon the mar●iage is disolv'd , he is no ●urther lyable to pay her debts ; than in as far as he was a gainer by her estate . if the wife contract any debt , or doe any other deed , after the proclamation of banns , the husband will not be thereby prejudg'd . the husband is also oblig'd ●o aliement his wife , and if he ●efuse , the privy council , or lords of session , will modific ●n aliement to her out of her husbands means , suitable to ●is qualitie , which they will ●lso grant , ob saevitiam , if he ●reat her inhumanely . the husband is tutor , and ●urator to his wife , and there●ore , if she had tutors , or curators , formerly , their powe● is devolved over by the law upon the husband ; and whatever deeds she does withou● his consent are null , & when s●● is cited , he must be cited fo● his interest ; or if she marri● during the dependence of a● process , the samen must upon supplication be continued against him . because , the sole administration , during the marriage belongs to the husband ; law hath secured the wife , th●● she cannot oblige her self when she is cloathed with ● husband , albeit with his consent , and therefore all bands and obligations , granted by ● wife stante matrimonio , are 〈◊〉 jure , null ; but if she oblige h●● self , ad factum prestandum , s●● will be lyable , as if she shoul● oblige her self to infest any man in lands properly belong●ng to her self . during the marriage , all donations made betwixt husband and wife are revokable , at any time in their life , ( except in so far as they are suitable provisions ) least otherwayes , they might ruine themselves , thorow love , fear , or importunity ; and that either expresly , by revocking what is done ( though they obliged themselves not to revoke ) or tacitly , by disponing to others , what was so gifted . all rights made by a wife to her husband , or any third partie with his consent and to his behoof , are valid rights ; if they be ratified by her before a iudge , before whom she is to declare without the presence of her husband , that she was not compelled to do that deed , and swear , that she shall nev●● quarrel the same : whereas ▪ if they be not ratified , they may be quarelled , as extorted vi & metu , or may be revokes as donatio inter virum , & uxorem , which the ratification before a iudge does absolutely exclude , propter religionem sacramenti , the ratification , being extra presentiam mariti . marriage is disolved either by death , or divorce , and 〈◊〉 the disolution of the marriage be by death there is a difference , if the samen be within year and day of the marriage , or thereafter ; for if either the husband or the wife die within the year , all things done in tuitu matrimonij , become void ▪ and return to the same condition they were in before the marriage ; except there be a living child , procreat of the marriage , who was heard cry . if the marriage be disolved by death , after the year expyres , then the wife surviving , has right to a third of the moveable estate ; if there be children ; and to the half , if there be none , and this is called jus relictae ; and tho this right does not hinder the husband , to give or dispose upon his moveables in his life , yet he cannot do any deed to defraud his wife of this right , the fraud being palpable ; she has also a right to the liferent of the third of the lands , wherein he dyed infest , and this is called a widows terce ; and to any other provisions contained in her contract of marriage , which provision if it exceeds the terce , it excludes * it ; and the husband surviving has right to the tocher : and if he marry an heritrix , he has right to all her lands , after her death , during his own life , if there be a child of the marriage who was heard cry , and this is called , the courtisie of scotland * . marriage is disolved by divorce , which is granted either for wilful disertion , and non adherence , to be procured by a process before the commissars of edinburgh for non adherence ; when either partie refuse to cohabite together , and remains in their malicious obstinacie four years , and are thereupon excommunicate * , or for adultery , in both which cases the persuer must give his oath , that the process is not carryed on by collusion , and after a decreet of divorce is obtained , in either case the partie innocent may marry ; but the partie that is guilty cannot , and besides looses all the benefite that they could expect by the marriage . tit. vii . of minors , and their tutors , and curators . whilst persons are within twenty one years , the law presumes them to want that firmeness of iudgement , which is requisite , for the exact manadgement of their affairs ; and during that time , they are called minors , by a general terme ; though properly , such onely are to be called minors , who are past pupillarity , which lasts in males till fourteen , and in females till twelve . tutory may be defined , a power and faculty , to govern the estate and person of pupils ; and the law gives tutors , and curators , for the manadgement of their affairs . there are three kinds of tutors , viz. tutor nominate , tutor of law , and tutor dative , tutor nominate , ( who is likewise called tutor testamentar , ) is he who is left tutor by the father in his testaments , or any other write , and he is not obliged to find caution , or give his oath , de fideli administratione ; because it is presumed , the parent hath chosen a sufficient person . the father onely can name tutors ; but if the mother , or even a stranger , give or dispone any thing to a child , he may name a tutor to manadge what he gives ; but if there be no tutor nominate , or if he accepts not , then there is place for a tutor of law , who is so called , because he succeeds by law , and generally , the nearest agnate ( for so we call such as are related by the father ) who is to succeed to the minor , being past twenty five years , and would be heir to him , is his tutor in * law : he takes a brieff out of the chanc●llary , and serves himself before a iudge , to whom it is directed , and the tutor of law must find caution before he administrate . if he do not s●rve within a year after the time he might have served , then any person may give in a signator to the exchequer , and he gets a gift under the privie seal , of being tutor dative , and finds caution , acted in the books of exchequer : but of old , they found caution in the commissars books : this tutor and he onely is oblidged to make faith , de fideli administratione . if there be more tutors than one , the major part must all consent ; but the pupil needs not subscrive : but if there be a tutor , sine quo non , he must alwayes be one of the consenters . after the years of pupillarity there must be a summons raise● at the pupils instance , summonding some of the fathers-side , and some of the mothers-side , upon nine days warning ▪ to appear before any iudge and at the day , the minor gives in a list of those he intends to choise to be his curators , and those who accept must subscrive the acceptation , and they must find caution de fideli * , upon all which the clerk extracts an act , which is called , an act of curatory : there uses to be sometimes , curators , sine quo non , and the major part with him is still a quorum ; except the minor in his particular election hath appointed otherwise ; for the quorum is arbitrarie , and the act bears how many shall be a quorum . there are these differences betwixt tutors and curators , that tutor datur personae , curator rei , a tutor acts , and subscrives for his pupill , a curator with him ; but both must make inventarie of all the pupills estate before they administrate , with consent of the nearest of kinne on both sides , and if they neglect to make inventary , they will get no expenses allowed them during their administration , and may be removed from their offices as suspect * ; neither have sallaries : and both are lyable to compt , but not till their office expyre , as both have action against their minors , for what they profitably expended during their administration , which is called , actio tutelae contraria . if the minor have curators , and do any thing without their consent to his prejudice ; ( for he may make his condition better without them , but not worse , the advantage being evident and without hazard ) then that act is , ipso jure null , that is to say , he needs not revoke ; but if he have no curators , then any act he does to his own prejudice is valid ; but he must reduce the same thus , viz. he must writ a revocation and subscrive it before two witnesses , and registrate it , and thereupon he must raise and execute a summonds of reduction of that act , ex capite minoritatis , & laesionis , before he be years of age , wherein he must make appear , he was both minor , and was laes'd ; otherwayes , the lords will not repone him : though this revocation be not absolutely necessarie , yet the executing of a summonds before is absolutely necessary : and though a minor swear not to revoke , yet this oath is declared null by law , and the eliciter of it punishable , and infamous * ; but if he fraudulently circumveen● another , by saying he was major , he will not be restored against his own fraud . a tutor or curator , cannot persue his pupill , ▪ till he has compted for his intermissions ; for it s presum'd he has his pupills estate in his own hands , and whatever right he buyes of what belong'd to his pupill is presum'd to be bought with his pupills means ; and so the advantage must accress to the pupill . so carefull has our law been to protect minors , and to secure old estates , that minor non tenetur placitare super haereditate paterna * , that is to say , a minor is not obliged to answer any process concerning his fathers heritage ; but , yet if his fathers right be quarrelled for his fathers crimes , or delicts , as in the cases of falshood , forfeiture , or recognition , these cases are excepted , and he is obliged to answer . secundo , this priviledge extends not to actions concerning marches , or division of lands . tertio , it defends not against the superiour perseuing for his casualities . quarto , where the minors right is only quarrell'd consequentiallie , the chief right quarrolled belonging to a major , there is no place for this priviledge . quinto , it defends not in cases where the heritage was deryv'd from collaterals , such as brothers , or uncles . sexto , it defends only where the heritage descended even from the father , or grand-father , if they dyed in peaceable possession , and if no process was intented against them in their own life time , septimo , it takes only place , where the father was actually infeft ; but then it is accounted heritage , tho it was conquest by the father . the priviledge of minoritie , is in some cases allowed to the minors heir : which are comprised in these following rules . if a minor succeds to a minor , the time of restitution is regulated by his own minority , and not by his predecessors . . if the predecessor be major , and intra quadriennium utile restitutione , is competent during the heirs minority ; but he has no further of the anni utiles , than remained to the defunct , the time of his deceass . . if a major succeed to a minor , he has only quadriennium utile , after the minors deceass , or so much thereof as was unexpyred at that time . minoritie ends both in men and women , when they are . years of age compleat ; but after that there is . years granted , wherein they may reduce what they did revoke before they were . years compleat , and these years are called , quadrienneum utile . if a man be an idiot , or furious he must be found to be so by an inqueist , and thereafter his nearest of kinne may serve themselves tutors ; or the exchequer may grant a tutor dative , if they serve not , but the tutor in law , will be preferred to that tutor dative offering to serve quandocunque , and it must be proven to the inquiest at the time of the service , that he is furious , and when he began to be so , and all deeds done by him after that are null , not only from the date of the service , but from the time that he was found to be idiot , or * fuirous . if a person be prodigal , or spend-thrift , he interdicts himself , either voluntarly , which is done by a band , whereby he obliges himself to do nothing without the consent of such friends as he therein condescends upon ; and these are therefore called the interdicters , and if this narrative be false , so that the person is not improvident , as he relates in the band , this voluntar interdiction will be reduc'd . secundo , interdiction proceeds upon a persute , at the instance of the nearest of kin , against the prodigal whom the lords will interdict if they see cause ; or . though there be no persute ; yet if in another process they find he has been often , or is obnoxious to be cheated , they will interdict him , ex proprio motu , and these are called iudicial interdictions ; and no interdiction lasts longer than the levitie and prodigality which occasioned it , but this requires also the sentence of a iudge . upon this voluntar band , the lords of the session grants letters of publication , and after these letters are published , at the mercat cross of the head burgh of the shire , where the person interdicted dwells , and are registrat ; the person interdicted can do nothing to the prejudice of his heritable estate , otherwayes the interdicters may reduce these deeds as done after the publication of the interdiction ; ( for interdictions extend only to heritage ; but yet the person himself is stil lyable to personal execution , even upon these deeds done after interdiction . a father , is likewise in law administrator to his own children , that is to say , is both tutor , and curator , to them , if they fall to any estate during their minoritie , and if either pupill or minor have any legal action to prosecute , and want tutors or curators , the lords will upon a bill authorize curators , who are therefore called curators , ad lites . all tutors and curators can act and do whatever the pupill might do if he were major ; except in selling of land , which they cannot sell without a sentence of a iudge● ; finding the vendition necessar for payment of debt , or setting tacks to last beyond their own office. all these tutors , curators , and administrators , or any who behave as such , and who are called in our law pro-tutors , are lyable to do exact dilligence , and therefore ; if any of their pupills debitors becomes bank-rupt , or their tennents break , they are lyable and the pupill may pursue any one of the tutors for the negligence of all the rest , but he has his relief against the rest : they are likewayes lyable to put the minors rents , out upon annuallrent , within half a year , or a term after they receive them , and to put out his money ▪ upon annuallrent within a year , both which times are allowed to get good debitors but if his bands bear annuallrent , they are only obliged to take in these annuall-rents once during their office , and to turn them in a principal summ , bearing annuall-rent . after tutors and curators have once accepted they cannot renounce ; but if they miscarie in their administration , they may be removed , by an action , as suspect tutors . if there be moe tutors or curators , the office upon the death of any of them accresses to the survivers ; except they be named joyntly ; for then the first nomination is disolved by the death of any one of them , the defunct not having trusted any one , and for the same reason , if a certain number be declared a quorum , the nomination fails , if so many dye as that this number survives not , nor does the office accresse to such as survive . we have little use in scotland , of what the institutions of the roman law teach , concerning slaverie , or patria potestas , for we as christians allow no men to be made slaves , that being contrare to the christian liberty ; and the fatherly power or patria potestas , has little effect with us ; for a child in familie with his father , acquires to himself and not to his father as in the civil law. part second . tit. i. of the division of rights , and the several wayes by which a right may be acquired . being to treate in the second book of things themselves , to which we have right , and how we come to have right to them , it is fit to know . that some things fall not under commerce , and so we cannot acquire any propertie in them , such as are things common , as the ocean , ( though our king has right to our narrow seas , and to all the shoars . ) secundo , things publick , which are common only to a nation or people , as rivers , harbours , and the right of fishing , in the saids rivers . tertio , res universitatis , which are common only to a corporation or citie , as a theater , or the mercat place , and the like : quarto , things that are said to be no mans , but are iuris divini , which are either sacred , such as the bells of churches , for though we have no consecration of things since the reformation , yet some things have a relative holiness and sanctity , and so fall not under commerce , that is to say , cannot be bought and sold by private persons . quinto , things that are called sanctae , so called because they are guarded from the injuries of men , by speciall sanctions , as the walls of cities , persons of ambassadours , and laws , sexto , things religious , such as church-yeards . as to those things which fall within commerce , we may acquire right to them , either by the law of nature , and nations , or by our civil and municipal law , dominion or propertie is acquired by the law of nations either by our own fact and deed . or secundo , by a connexion with , or dependence upon things belonging to us , the first by a general term is called occupation , and the last accession . occupation , is the apropriating and apprehending of those things , which formerly belonged to none . and thus we acquire propertie in wild beasts , of which we acquire a right how soon we apprehend them , or are in the prosecution of them with probabilitie to apprehend them , as also we retain a right to them whilst they remain in our possession , and evenafter they have escapt , if they be yet recoverable by us . secundo , propertie comes by accession , as for instance , a house built upon , or trees taking root in our ground , and the product also of our beasts belong to us , and ground that grows to our ground becomes insensibly ours , and is called , alluvio by the civilians . and it is a general rule in law , that accessorium sequitur naturam sui principalis ; and yet a picture drawn by a great master upon another mans sheet or table , belongs to the painter , and not to the master of that whereon it is drawn , the meanness of the one ceding to the nobleness of the other . there are many other wayes of acquiring right and property , which may be referred either to occupation , or accession ; as if a man should make a ship of my wood , it would become the makers , and would not belong to me , to whom the wood belonged , and this is called specification , in which this is a general rule , that , if the species can be reduced to the rude masse of matter , then the owner of the matter is also owner of the species , or thing made ; as , if a cup be made of another mans silver , the cup belongs not to the maker , but to the owner of the mettle ; because it can be reduced to the first mass of silver , but if it cannot be reduced , then the species will undoubtedly belong to him that made it , and not to the owner of the matter , as wine , and oyl , made of anothers grapes , and olives , which belongs to the maker , seing wine , cannot be reduced to the grapes of which it was made . propertie is likewise acquired when two or moe persons mixe together in one , what formerly belonged to them severally , and if the matterials mixed be liquid , it is called by a special name , confusion , as when several persons wines are mixed and confounded together ; but if the particulars mixed , be dry and solid , so as to retain their different shapes and forms , it is called commixtion , and in both cases , if the confusion , or commixtion be by consent of the owners , the body or thing resulting from it , is common to them all ; but if the commixtion be by chance , then if the matterials cannot be separated , the thing is yet common ; as when the graine or corns of two persons are mixed together by chance , here there must necessarly be a community ; because , the separation is impossible ; but if two flocks of sheep belonging to different persons should by accident mix together , there would be no community ; but every man would retain right to his own flock , seing they can be distinctly known and separated , and these two ways of acquisition are by accerssion . the last , and most ordinarie way of acquiring of property , is by tradition , which is defyned a delivery of possession by the true owner , with a design to transfer the property to the receiver , and this translation , is made either by the real delivery of the thing it self , as of a horse , a cup , &c. or by a symbolick delivery . as , is the delivery of a little earth and stone in place of the land it self ; for , where the thing cannot be truely delivered , the law allows some symbols , or marks of tradition , and so far is tradition necessary to the acquiring of the prorerty in such cases , that he who gets the last right , but the first tradition is still preferr'd by our law. if he who was once proprietar does willingly quite his right , and throw it away , ( which the civil law calls , pro derelicto habere , ) the first finder acquirs a new right , per inventionem , or by finding it , by which way also men acquire right to treasures , and to iewels lying on the shoare ; and generally to all things that belonged formerly to no man , or were thrown away by them ; but it is a general rule in our law , that what belongs to no man is understood to belong to the king. prescription , is a chief way of acquiring rights by the civil law ; but because , that title comprehends many things , which cannot be here understood , i have treated that title amongst the ways of loosing rights , it being upon diverse considerations , modus acquirendi & amittendi . we also acquire right to the fruits of those things which we possess , bona fide , if these fruits were gathered in or uplifted , and consumed by us , whilst we thought we had a good right to the thing it self , for though thereafter our right was found not to be good ; yet the law , judged it unreasonable to make us restore what we lookt upon as our own ; when we spent it , and therefore , whenever this bona fides ceaseth , which may be several wayes , especially by intenting an action at the true owners instance , we become answerable for these fruits ; though thereafter they be percepti & consumpti , by us . tit. ii. of the difference , betwixt heritable , and moveable rights . having in the former title cleared , how we acquire rights , we come now to the division of them . the most comprehensive division of rights amongst us , is , that whereby they are divided into heritable , and moveable rights . heritable rights in a strict sense , are only lands , and all summs of money , and other things which can be moved from one place to another are moveable but that is only counted heritable in a legal sense , which belongs to the heir , as all other things which fall to the executor are moveable , and so sums of money , albeit of their own nature they are moveable ; yet if they were lent for annualrent they were of old repute heritable . for understanding whereof it is necessar to know that albeit by the cannon law all annualrents were forbidden , as being contrare to the nature of the thing , money being barren of its own nature : yet the reformed churches do generally allow it ; nor were the iews prohibited to take annualrent from strangers . before the year all bands , and sums , bearing annualrent , were heritable , as to all effects so that the executor , who is haeres in mobilibus , had no interest in , nor share of such bands , but they belonged intirelie to the heir ; but that parliament finding that the rest of the children , beside the heir had no provision by our law , except an equall share in the moveables , they therefore ordained that all bands for summs of money should be moveable , and so belong to the executors ; except either the executors , were secluded , or the debitor were expresly obliged to infest the creditor , which is likewise renewed since the kings resturation * : for in these cases , it was clear that by the distination of the defunct , ( which is the great test in this case ) these sums were to be heritable ; and yet all sums bearing annualrent , are still heritable in so far as concerns the fisk , or the relict ; so that if a band bear annualrent , to this day the fisk cannot claime any right to it , as falling under the rebells single escheate , ( whereby when he becomes rebel all his moveables fall to the king ; ) nor has the relict any right to a third of it , as she has to a third of all moveables , the law ▪ having presumed that relicts will be still sufficiently secured by their contracts ; but whether the sum be heritable , or moveable , all the bygone annualrents , and generally all bygones are moveable , as to all intents and purposes , and so fall to executors , and to the fisk , and to the relict ; because bygone rests are lookt on as money lying by the debitor , they being already payable , as all obligations bearing a tract of future time belong to the heir . so far does the law defer to the will of the proprietar , in regulating whither a sum should be heritable , or moveable ; ( the law thinking that every man is best iudge how his estate shal be bestowed ; ) that if a man destinate a sum to be imployed upon land or annualrent , this destination will make it heritable , and to belong to his heir ; or though the sum was originally secured by a moveable band , yet it may become heritable by the creditors taking a superveening heritable security for it , or by comprising for his security ; but yet the creditors design is more to be considered , than the supervenient right ; as for instance , a sum may be moveable ex sua natura , and yet may be secured by an heritable surty ; as in the case of bygone annualrents , due upon infeftment of annualrent , which are unquestionably moveable of their own nature , and yet they are heritably secured ; and even executors may recover them by a real action of poynding of the ground : and , if a wedset bear a provision , that notwithstanding of requisition , the wedset shall still subsist , the requisition will make the sum moveable , though it continue secured by the infeftment ; as also , sumes ab initio heritable , may be secured by an accessory moveable security , without altering their nature ; as for instance , if one take a gift of escheat for securing himself in heritable sums ; this does not alter the nature of the former heritable right . though a sum be heritable , yet if the creditor to whom it is due require his money , either by a charge or requisition it becomes moveable , for the law concludes in that case , that the creditor designs rather to have his money , than lying in the debitors hands upon the former security ; and if it were lying in money beside him it would be moveable : and a requisition to one of the cautioners will make it moveable , as to the principal and all the other cautioners ; but a charge on a band wherein executors are secluded , will not make the sum moveable , for the design of the creditor is presumed to continue in favours of the heir , till the sum be payed , or the band innovated ; but it has been otherways decided of late ; and for the same reason a requisition used by a wife , who has a heritable sum , that falls not under the ius mariti , will not make it moveable , since it is presumed she designed only to get payment , but not to give it to her husband . but if the creditor who required his money take annualrent after that requisition , it is presum'd that he again altered his inclination and resolved to have it heritable , & to continue due by vertue of the first security though a band be heritable , as bearing annualrent , yet before the terme of payment it is moveable , as to all persons . from all which it is clear , that some sums are moveable as to the executor , but not as to the fisk or relict , and some may be moveable , as to the debitor and his executors , and yet may be heritable as to the creditor and those representing him , as for instance , an obligation , to imploy a sum due by a moveable band , upon land or annualrent for the heirs of a marriage , that sum as to the creditor would be heretable , yet quo ad the debitor it would remain moveable . title iii. of the constitution of heritable rights , by charters and seasins . having treated in the former chapter of the difference betwixt heritable and moveable rights , it is now fit to begin with heritable rights as the more noble . our heritable rights are regulate by the feudal law , by which feudum , which we call a few was defined to be a free and gratuitous right to lands made to one for service to be performed by him : he who grants this few , is in our law called the superiour , and he to whom it was granted is called the vassal ; the superiours right to the fie is called dominum directum , and the vassals right is called dominum utile , and if that vassal dispone the land to be holden of himself , then that other person who receives that few , is called the sub-vassal ; whereas the vassal who granted the few becomes the immediate superiour to this sub-vassal , and the vassals superiour , becomes the sub-vassals mediate superior , and is so called because there is another superiour interjected betwixt him and the sub-vassal . the superiour dispons ordinarly this few to be holden of him by a charter and seas●n : the charter is in effect the disposition of the few made by the superiour to the vassal , and when it is first granted , it is called an original charter or right , and when it is renewed it is called a right be progress , and proceeds either upon resignation when the lands are resigned in the superiours hands for new infeftment , either in favours of the vassal himself , or of some third partie , or by confirmation , when the superiours confirms the right formerly granted , and if it is to be holden from the disponer of the superiour that is called a me , and is a publict right , and is still drawn back to the date of the right confirmed ; but if the confirmation be onely of rights to be holden of the vassal , it is called , de me , and is a base right , the effect of this charter being to secure against forfaulture or recognition of the superiour , all which are voluntar rights ; but if they be granted in obedience to a charge upon apprising or adjudication , they are necessar . if the charter contains a clause de novo damus , then it has the effect of an original right , and secures against all casualities due to the superiour ; in which the first thing expressed is for what cause it was granted , and if it was granted for love and favour , our law calls that a lucrative cause , or for a price , and good deeds , this we call an onerous cause . the second thing considerable in a charter , is the dispositive clause , which contains the lands that are disponed ; and regulariter with us , the charter will give right to no lands , but what are contained in this clause , though they be enumerated in other places of the charter . the third clause is that wherein is exprest the way how the lands are to be holden of the superiour , and this is called the tenendas , from the first word of the clause . the fourth clause , is that which expresses what the vassal is to pay to the superiour , and this duty is called the reddendo , because the clause whereby it is payable begins , reddendo inde annuatim . the fifth clause , is the clause of warrandice , which is either personal , or real , personal warrandice is when the author or disponer is bound personally , and is either simple warrandice , which is only from subsequent and future deeds of the granter ; and this warrandice is implyed in pure donationes ; or secundo , warrandice from fact and deed , which is , that the granter hath not done , or shall not doe any deed prejudicial to the right warranded . or tertio , warrandicè is absolute , and that is , to warrand against all mortals : and in absolute warrandice , this is a rule that an adaequate onerouse cause presums still absolute warrandice ; but absolute warrandice in assignations imports only that the debt is truly due , and not that the debitor is solvent . all rights granted by the king are presumed to be donations , and import no warrandice . real warrandice , is when infeftment of one tenement is given in security of one another . the effect of warrandice is , that if the thing warranded be taken away , there is competent to the partie , to whom the warrandice is granted , an action of eviction , for relief . because tradition is requisite to the compleating of all rights ; therefore the charter contains a command by the superiour to his bailly ; to give actual state and seasin , to the vassal , or to his atturney by tradition of earth and stone , and this is called the precept of seasin , and upon it the vassal , or some other person having a procuratory from him , gets from the bailly earth and stone delivered , in presence of a notar and two witnesses , which notar writes out an instrument upon all this , which instrument is called the seasin . and if the superiour gives seasin himself , it is called a seasin , ( propriis manibus ; ) so that a formal seasin is the instrument of a notar , bearing the delivery of earth and stone , or some other symbols by the superiour , or his bailie to the vassal , or his atturney , the tenor whereof is known and fixt , and now by a late statute the witnesses must subscrive the instrument * ; and thus the vassal stands infest in the land by charter and seasin . this seasin being but the assertion of the notar , proves not ▪ except the warrand of it , that is to say , the precept or disposition whereon it proceeded be produced ; but a seasin given by a husband to his wife , or by a superiour to his vassal , propriis manibus , ( that is to say , by the granters own hands without a precept ) is sufficient , when the competition is with the granters own heirs ; or with no more solenin rights , and is not exorbitant : and after fourty years , there is no necessity to produce either precept of seasin , or procuratorie of resignation by a special statute * . this seasin must be registrated within . dayes , either in the general register at edinburgh or in the particular registers of the shire ; stewartry or regality where the land lyes , els the right will not be valid , against a singular successor ; that is to say , if any other person buy the land , he will not be obliged to take notice of that seasin ; but the right will still be good against the granter and his heirs . if lands lye discontigue , every tenement must have a special seasin ; except they be unite in one tenement ; and then one seasin serves for all ; if there be a special place exprest , where seasin should be taken ; but if there be no place exprest ; then a seasin upon any part will be sufficient , for the while , contiguous tenements , ( these being naturally unite ; ) but will not be sufficient for lands , lying discontigue ; and one seasin will serve for all tenements , of one kind ; but where they are of several kinds ; as lands , milnes , &c. they will require several seasins ; the symbols of possession being different ; for lands pass by the tradition of earth and stone , and milnes by the clap and happour . sometimes lands are erected into a barronie , ( the nature of which is explained before ▪ tit. inferiour iudges , ) and whensoever this is granted , union is imployed as the lesser degree . erection in a barrony can only be by the king , and is not ▪ communicable by any subaltern rights , albeit the whole barrony be disponed ; tho the union may be thereby communicate . this union can only be granted by the king , which he may grant either originally , or by confirmation ; and being so granted it may be transmitted by the receiver to a sub-vassal ; but if a part of the lands united be disponed , the whole union is not dissolved , but the part disponed onely ; and this union , and all other priviledges , and provisions , can onely be granted in the charter ; but not in the seasin . tit. iv. of the several kinds of holding . the first division of feus from the several kinds of holding , is that some lands , hold ward , some feu , some blench , and some burgage . for understanding ward-holdings , it is fit to know , that at first , all feus were rights granted by the longo-bards , and the other northern nations , ( when they conquest italy ) to their own souldiers for service to be done in the warrs ; and therefore ward-holding which is the properest holding , is called servitium militare , and all lands are therefore presumed to hold ward ▪ except another holding be exprest ; and servitium debitum & consuetum , is interpret to be ward-holding . the advantages arising to the superiour , by the speciality of this holding , are that the superiour has thereby the full meals , and duties of the ward-lands , during the years that his male-vassal is minor * ; for the feu being given originally to the vassal , for military service , it returns to the superiour , during minority ; because the law presumes , that the minor is not able to serve his superiour in the warrs , but in female-vassals , this casualitie lasts only till . years compleat ; because , they may then marry husbands , who may be able to serve the superiour , and this properly is called the casuality of ward ; for marriage , is due in other holdings , as shall be cleared in the next title . feu holdings , is that whereby the vassal is obliged to pay to the superiour a sum of money yearly , in name of feu-dutie nomine feudi firmae . this holding has some resemblance to the ( emphyteosis ) in the roman law ; but is not the same with it ; for emphyteosis was a perpetual location , containing a pension , as the hyre which was granted , for improving and cultivating barren ground ; but our feu-holding , comes from the feudal law , ( whereof there was no vestige in the civil law , ) and passes by infeftment to heirs . blench-holding , is that whereby the vassal is to pay an elusory duty , meerly for acknowledgement , as a penny , or a pair of gloves , nomine albae firmae , and ordinarly it bears , si petatur tantum . these blench duties are not due , whether they be of a yearly growth , or not ; except they be required yearly by the superiour * , as for instance , if the blench dutie be yearly attendance at such a place ▪ or a rose yearly , the superiour can seek nothing for his blench dutie , except he required the same within the year . burgage-holding , is that duty which burghs royal are obliged to pay the king , by their charters , erecting them in a burgh royal , and in this the burgh is the vassal , and not the particular burgesses , and the bailiffs of the burgh are the kings bailiffs ; nor can seasin in burgage lands , be given by any other than the bailly , and town clerk ‡ , if the town have any and they must be registrated in the town clerks books * . before the reformation there was another kind of holding in scotland , which was of mortified lands , granted to the church , and the only reddendo , was prayers , and supplications , in behalf of the mortifiers . title v. of the casualities , due to the superiour . the feu being thus stated by the superiour , in the person of his vassal , it will be fit in the next place , to consider , what right the superior retains , and what right the vassal acquires by this constitution of the fie . the superiour retains still dominium directum in the feu , and the vassal has only dominum utile ; and therefore the superiour is still infeft aswell as the vassal ; but the king needs not be infeft ; for he is infeft jure coronae , that is to say , his being king , is equivalent to an infeftment . the superiour has different advantages , and rights , according to the different maner of holdings , and there are some rights and casualities common to all holdings . ward-holdings , gives the superiour a right , to the meals , and duties of his vassal lands , during all the years that his vassal is minor ; and this is properly called the casualitie of ward ; but the superiour , or his donatar , are obliged to entertain the heir ; if he have no other feu , or blench , lands , and to uphold the house , parks , &c. in as good condition as they found them ; and must find caution for that effect * . if the vassal sells , or dispones the half of his ward-lands , to any except his appearand heir , who is alioque successionae , without the consent of his superiour , the whole ward-lands fall to the superiour , for ever ; and this we call * recognition , which is introduced to punish the ingratitude of the vassal , who should not have disponed the superiours lands , without his own consent ; and to shun this , the vassal in ward-lands gets the superiours confirmation , before he takes infeftment ; for if he takes infeftment before he be confirmed , the lands recognosce , as said is ; except the seasin be null in it self ; since the vassal showes sufficiently his ingratitude by the very taking of the infeftment : and though the vassal at first did not sell the half without the superiours consent ; yet , if he thereafter sells as much as will extend to more than the half of the feu , the first huyer will likewise loose his right , if it was not confirmed before he took infeftment . not onely a confirmation , or novodamus , ( if it express recognition ) but the superiours accepting service , or pursuing for the casualities , are a passing from the recognition ; because , they infer the superiours acknowledgement of the vassals right . recognition takes place in taxt-ward , as well as simpleward , but in no other manner of holding ; except the same be expresly provided in the vassals charter , for ward-holding , is presumed to be the only proper feudal right . if the vassal denyeth the superiour , he losses his feu , and this is called , disclamation * ; but any probable ground of ignorance will take off this forfeiture . if the vassal who holds ward-lands dyes , having an heir unmarried , whether minor , or major , the superiour gets the value of his tocher ; though he offer him not a woman to be his wife ; but if the superiour offer him his equal , for a wise , and he refuses to accept , ( tho he never marry any other person ; ) the superiour gets the double of his tocher , and one of these casualities is called the single avail of the marriage , and the other , the double avail of the marriage ; but the modification of this is referred to the lords of session , who consider still what was the vassals free rent , all debts deduced , and the ordinarie modification is about two years rent , of the vassals free estate ; even though the heir was an heretrix , and though there were moe heirs portioners , there will only one avail be due for them all . though this casualitie of marriage ; be still due in all ward-holdings ; yet they may be due by express paction in other holdings , and there are many in scotland , who hold their lands feu , cum maritagio ; and in both cases , the marriage is debitum fundi . though as to the casuality of ward , every superiour has right to the ward lands holding of himself where the vassal holds ward-lands , of moe superiours ; yet the casualitie of marriage falls only to the eldest superiour ; because there cannot be more tochers than one ; and he is the eldest superiour from whom the vassal had the first feu ; but the king is still presumed to be the eldest superiour ; because , all feus originally flowed from him . it is thought that the reason why this casualitie is due , was , because it was not just , that the vassal should bring in a stranger to be mistress of the feu , without the superiours consent ; for els he might choice a wife out of a family that were an enemy to the superiour ; but i rather think , that both ward , and marriage , proceeded from an express paction , betwixt king malcome kenmore and his subjects , when he first feued out the whole lands of scotland , amongst them ; as is to be seen in the first of his statutes * . the special dutie arising to the superiour in a feu holding , is , that the superiour gets a yearly feu dutie payed to him , and if no part of this feu duty be payed for two years , even though the whole was offered ; or though the vassal was minor , then the vassal looses his feu , ob non solutum canonem ; for the feu duty , is called canon ; and if this provision be exprest in his charter , he will not be allowed to purge this irritancy , by offering the bygones at the barr ; but though this provision be not exprest in the charter , yet the feu will be annulled for not payment of the feu-dutie , by an express act of parliament * ; but the vassal in that case will be allowed to purge at the bar , and the reason of this difference is ; because the express paction is thought a stronger tye than the meer statute . a clause irritant in our law , signifies any provision , which makes a penalty to be incurred , and the obligation to be null for the future ; as here , where the superiour gives out his feu upon express condition , that if the feu-dutie be not payed , the feu shall be null , and reduceable , and a clause resolutive , is a provision , whereby the contract to which it is assixt , is for not performance , declared to have been null from the beginning . the casualities that are due , by all manner of holdings , and which arise from the very nature of the feu , without any express paction , are none-entry , relief , and liferent escheate . none-entry , is a casuality whereby the superiour has right to the meals and duties of the lands , when there is not a vassal actually entered to him , and the reason why this is due to him , is , because , he having given out his feu to his vassal or service , when there is no actual vassal entered , the law allowes him to have recourse to his own feu , that he may therewith provide himself with a vassal , who may serve him ; but though the full rents of the lands be due to the superiour , from the very time that he cites his vassal , to hear , and see , it found and declared , that the land is in none-entrie ; yet before that citation , the superiour gets onely the retoured duties ; and the reason of the difference is ; because after citation , there is a greater contempt than before , and so is to be more severely punished . for understanding which retour dutie , it is fit to know , that there was of old , a general valuation of all the lands of scotland , but thereafter ▪ there was a new valuation , the first whereof is called the old , and the second , the new extent , and both are called the retour duty , because they are exprest in the retour , ( or return ) that is made to the chancellary , when an heir is served ; but both are very far below the value , to which lands are now improved , though in our law , the new extent be constructed to be the value . but in an infeftment of annualrent , the whole annualrent is due , as well before declarator , as after ; because the annualrent is the retoure dutie , it being retoured , valere seipsum ; and that is called an infeftment of annualrent , when the vassal is not infeft in particular lands ; but is infeft in an yearly annuity of money , to be payed out of the lands , as for instance , if a man should be infeft in the sum of five hundred merks yearly , to be payable out of any particular lands , being worth . merks yearly , how soon the vassal who had right to the . merks dyed , the superiour would have right to the whole merks yearly , until the heir of the vassal be entered . vide infra tit. servituds , § annualrents . there is no nonentry due in burgage lands ; because the burgh it self is vassal , and never dyes , and so therefore , neither does the burgh nor any private burgess pay nonentrie , the duty payable by a burgh , being onely by watching and warding . when the vassal enters , he pays an acknowledgment to the superiour , which is called , relief , because it s payed for reliving his land out of the superiors hands . it is debitum fundi , and affects not only the ground really , but the vassal personally , who takes out the precept for infefting himself ; though he never takes infeftment thereupon . the value of this casuality varies , according to the nature of the holding , for in blench and feu holdings , it is only the double of the feu or blench duties ; but in ward-holdings , it is the full duty of the land ; if the superiour be in possession , the time of the vassals entrie ; but if the superiour was not in possession ; though the vassall was minor , or if the vassall be major , before his predecessor dye , then the superiour gets only the retour dutie ; and it is so far from being presumed to be remmitted by the superiours entering his vassal ; that it is still exacted ; though it be gifted with the other casualities . for understanding life-rent escheates , it is fit to know ; that when any man does not pay a debt , or perform a deed conform to his obligation , his obligation is registrated ; if it carry a consent to the registration in the body of it ; or if it do not , there must be a sentence recovered , and upon that registrated writ , or decreet , ( for a registrated writ is a decreet in the construction of law ) there will be letters of horning raised , and the partie will be charged , and if he pay not within the dayes allowed by the charge , he will be denounced rebel , and put to the horn , and from the very day of the denounciation , all his moveables falls to the king by a casualitie , which is called , single escheate ; but now single escheates fall likewise to lords of regalities , if the persons denounced live within a regality , because the king has gifted all single escheates when he erected those regalities . if the vassal continue year and day rebel , without relaxing himself , ( which relaxation is expede by letters under the kings signet , expresly ordaining him to be relaxed from the rebellion ; ) then he is esteemed as civilly dead ; and consequently not being able to serve the superiour , the law gives the superiour the meals and duties of his feu , during all the dayes of the vassals life ; and this casuality is called liferent escheat ; so that every superiour aswell as the king , has right to the meals , and duties of the lands holden of himself * if his vassal was once infeft ; and even though he was not infeft ; if he was appearand heir , and might have been infeft ; for his lying out should not prejudge his superiour ; but if a man have right by disposition , whereupon no infeftment followed , the king only will have right to his life-rent escheate , as he has for the same reason to the manses and gleebs of ministers , when they are rebells ; since they are not infeft in these ; but all heritable and life-rent rights , requiring no infeftment of their own nature , such as a terce , and liferent-tacks fall not to the king , and the life-rent tacks fall to the master of the ground , and the life-rent by terce pertains to the superiour during the life-renters lifetime * . this life-rent escheate comprehends only rights , to which the vassal himself had right for his lifetime ; for else it will fall under single escheate ; ( single escheates comprehending every thing that is not a life-rent escheate ; ) and therefore , if the superiour having right to the vassals liferent escheate , become rebel himself , the vassals liferent escheate will fall under the superiours single escheate , for the superiour had not right to those meals and duties during all the dayes of his own lifetime ; and so it could not fall under his liferent , and the like , does for the same reason hold in all such as have assignations to liferents , or to liferent escheats , or to tacks for any definit number of years , few or many . the superiour has also right to the sub-vassals liferent escheate , which falls after the vassals denounciation , for by the denounciation of the immediate vassal , the superiour comes in his place ; and so has right to the sub-vassals liferent . the liferent escheate falls by the rebellion , that is to say , by the denounciation ; and the year and day , is given only to the rebell to relax himself , so that if he relax not within that time , his liferent will fall from the denounciation . in competition betwixt the superiour of the rebell , and the rebells creditors , these rules are observed in our decisions . primo , no legal diligence , nor voluntar right for payment of any debt contracted , after rebellion , will prejudge the superiour ; for else after a vassal were at the horn , he might fraudulently contract debt to prejudge the superiour . secundo , if the debt was prior to the denounciation , no voluntar infeftment will prejudge the superiour ; except the rebel was obliged prior to the rebellion , to grant that infeftment , and that the infeftment it self was expede within year and day of the denounciation . tertio , though legal diligence be more favourable then voluntar rights ; because there is less collusion , yet no legal dilligence will be preferred to the superiour ; except it was led for a debt prior to the denounciation , and was compleated by infeftment , or charge , within year and day , thereof ; albeit the said legal diligence was deduced after the denounciation . though this be the course in competitions , quo ad liferent escheates ; yet actual payment made , or diligences done to , or by creditors for payment of debts , prior to the rebellion , or the commission of crimes , will be preferred , to the donator ; if these rights or diligences be compleated before declarator , which we owe rather to the benignity of our kings , than to the nature of these rights , since there is jus questitum fisco , by the denounciation . liferent escheates is proper to all kinds of holding ; except burgage , and mortification ; for the vassal being a societie or incorporation dyes not , and so can have no liferent escheate ; and albeit the administrators were denounced for debts due by the incorporation ; yet that is still presumed to be their negligence , which ought not to prejudge the societie : for compleating this casualitie a general declarator must be raised at the superiour or donators instance , to hear and see it found and declared , that the vassal was orderly denounced rebel , and has continued at the horn year and day . and in a competition betwixt donators , the last gift if first declared , will be preferred . if the gift be taken to the behoove of the rebell , it is null , and is presumed to be to his behoove , if he or his family be suffered to stay in possession . the last priviledge of the superiour is , that he may force his vassal to exhite his evidents , to the end he may know what is the nature of the holding , and in what he is lyable to his superiour , which proceeds ordinarly by an action of improbation . title vi. of the right which the vassal acquires by getting the feu . the vassal by getting the feu settled in his person , by charter and seasin , as said is , has right to all houses , castles , towers , ( but not fortalices ; ) woods , and other things that are above ground of the lands expresly disponed ; and to coals , lime-stone , and other things within ground , and to whatever has been possessed , as part and pertinent of the land past memorie of man : but there are some things which passe not under the general dispositive words , and require a special disposition , which belong to the king , in an eminent way , and are called therefore regalia , and are not presumed to have been disponed by his majestie , or any other superiour ; except they were specially mentioned , such as are all iurisdictions , forrests , salmond-fishings , treasures hid within the ground , and gold , silver , and fine-lead ; for other mines , such as iron , copper , &c. belong to the vassal . if lands be erected in a barrony by the king , then though the lands lye discontiguously , one seasin will serve for them all , because , barrony implyes an union . this erecting them in a barrony , will likewise carry a right to iurisdictions , and courts , fortalices , forrests , hunting of deer , and ports , with their small customes , granted by the king , for upholding these ports , milnes , salmond-fishings , &c. because ; barronia est nomen universitatis , and possession of any part of a barrony is repute possession of the whole ; but mynes of gold , and silver , * treasures , and goods confiscate , are not carried with the barrony . the heritor has also power to set tacks , remove , and in-put tennents , as a consequence of his property . a tack is a location , or contract , whereby the use of any thing is set to the tacksman , for a certain hyre , and in our law it requires necessarly , that the terms of the entry , and the ish , must be exprest , that is to say , when it should begine and end , and it must bear a particular dutie , else it is null ; and if it be a valid tack , that is to say , if write be adhibit , ( verbal tacks being onely valid for one year ) to the thing set , the contracters names , tack-duty , ish , and entry , clearly therein exprest , and cloathed with possession , it will defend the poor tacksman , against any buyer * ; and even against the king and his donators , when they succeed by forfeiture , which was introduced in favours of poor tennents , for encouraging them to improve the land ; but it will not defend against a superiour of ward lands , for the ward , &c. though by act of parliament , the superiour be obliged , to continue them in their possession till the next term of whitsonday * . albeit tacks have not all the solemnities foresaid ; yet they are valid against the granter and his heirs . tennents cannot assign their tacks ; except they be liferent tacks ; or that the tack bear a power to assign ; but they may be comprysed , or adjudged ; and if the master suffer the tacksman to continue after the tack is expyred , he will be obliged to pay no more than he payed formerly during the tack ; and this is called in our law , the benefite of a tacite relocation , that is to say , both the setter and the tacks-man , are presumed to design to continue the tack upon the former terms , till the tennent be warned . if the tack be granted to sub-tennents ; then the tacks-man may set a sub-tack , which will be as valid as the principal tack , if cled with possession . rentals are also a kind of tacks ; but more favourable and easie ; because the rentaller and his predecessors have been ancient possessors , and kindly tennents , and he payes a grassume , or acknowledgement at his entrie , and yet they last no longer than for a year ; if there be no time exprest ; and if they be granted to a man and his heirs , they last only to the first heir ; for else they behoved for ever to belong to the heirs ; and so would want an ish ; but no tack is accounted a rental ; except it be in write , and the write bear the same . rentals cannot be assigned , except that power be granted in the rental ; and if the rentaler assign , he looses his rental ; though a tacksman forfeits not his right , by assigning it , the assignation being only null . when the years of the tack expyre ; or though there be no tack ; yet the master cannot summarly remove his tennent , or possessor except from liferented lands , and houses , or towers , and fortalices , and vitious possessors whom he can remove by a summonds on six days ; but in all other cases he must warn him , dayes , before the term of whitsonday ; tho the term at which he were to remove , by paction , were martinmass , or candlemass ; which warning must be executed , that is to say , intimated personally to the tennent , and upon the ground of the lands ; and at the parish kirk , immediately after sermon , and if he then refuses , he must be persued to remove upon six dayes , and after this citation , the master will get against him violent profits ; that is to say , the double of the avail of the tenement within burgh , and the highest advantages that the heritor could have got , if the tennent possessed lands , in the countrey ; nor will the tennent be allowed to defend against this removing ; till he find caution to pay the violent profits * . the master has likewise a tacit hypotheque in the fruits of the ground , which he sets to his tennent , in so far as concerns a years dutie , that is to say , they are impignorat by the law , for that years dutie , and he will be preferred either to a creditor , who has done diligence , or to a stranger who has bought them ; though in a publick mercat : and a lands-lord within burgh , has a tacit hypotheque in all the goods brought in to his house , by his tennent , which he may retain , a● , and while he be payed of his years rent . title vii . of transmission of rights , by confirmation , and of the difference betwixt base , and publick infeftments . the fie being thus established in the vassals person , the same may be transmitted , either to universal , or singular successors , the first is properly called succession , which shall be handled in the third-book . transmission of rights , to singular successors , is voluntar by disposition , and assignation , or necessar by apprysing , and adjudication , and consiscation , when they are forefaulted for crimes , &c. if the vassal sells the land , the superiour is not obliged to receive the sub-vassal except he pleases , though the charter bear , to him and his assignies ; and if he receive him , there is in law , a years rent due to the superiour , as an acknowledgement for changing his vassal . lands are disponed , either to be holden of the disponers superiour , and that is called a publick infeftment ; because , it is presumed it will be publickly known , being holden of the superiour ; and it is likewise called an infeftment , a me ; because , the disponer gives it to be holden a me , de superiore meo , and this infeftment is null untill it be confirmed * by the superiour , which is done by a charter of confirmation , wherein the superiour narrates the vassals charter , and subjoyns thereto his own confirmation or ratification of it , and the last right being first confirmed is still preferred . sometimes also the vassal dispones lands to be holden of himself , and this is called , a base infeftment , and has been allowed by our law , contrare to the principles of the feudal law , in favours of creditors , who getting right for payment of their debts , were unwilling to be at the expences to get a confirmation from the superiour , and this is called , an infeftment , de me ; because , the disponer gives them tenendas de me , & successoribus meis . these base infeftments being cloathed with possession , are as perfite , and valid , as a publick infeftment ; for possession , is to an infeftment to be holden of the disponer , the same thing that confirmation is to an infeftment to be holden of the superiour ; and therefore , as in a competition betwixt two infeftments of the same land , to be holden of the superiour , the first confirmation would be preferred , it being a general rule in law , that amongst rights of equal perfection , prior in tempore est potior in jure ; so if a base infeftment be cloathed with possession before the publick infeftment be confirmed , the base infeftment will be preferred ; though it was granted after the publick infeftment . for the better understanding of the nature of base infeftments , it is fit to know , that possession is in law natural , or civil , that is natural possession , by which a man is naturally , and corporally in possession , as by labouring of the ground ; but because sometimes men could not attain to the natural possession , for cloathing their right , therefore the law was forced to allow another possession by the mind , as that was by the body , and this is called , civil possession ; because it is allowed , and introduced by the civil law , of which there are many kinds in scotland ; as , primo , the obtaining decreets for meals and duties , and even citation upon an heritable right . secundo , payment of annualrent , by the debitor to the creditor who has infeftment of annual-rent . tertio , if a man be infeft in lands , and for warrandice of these lands be infeft in other lands , possession of the principal lands , is reputed in the construction of law , possession of the warrandice lands . quarto , if a woman be infeft by her husband in a life-rent , the husbands possession is accounted the wifes possession . quinto , if a man dispone lands , reserving his own liferent , the liferenters possession is accounted the fiars possession ; and a base infeftment is said to be cloathed with possession ; if he who is infeft hath attained either to natural or civil possession ; for the law cannot punish a man for not apprehending possession , who could not apprehend it ; and for the same reason , if the time of entrie was not come , he who is infeft by a base infeftment , will be preferred in that case , as if he were in possession ; and the reason of all this is , because our law considering , that base infeftments were clandestinely made , betwixt confident , and conjunct persons , to the ruine of lawful creditors , who could not know the same ; there being then no register of seasins ; it therefore declared all base infeftments to be simulat , which were not cloathed with possession ; and therefore before the terme , at which he who got the base infeftment could enter to the possession , there could be no simulation , nor fraude , in no partie ; and in this the law considers much the interest of lawful creditors , by sustaining that kind of possession in their favours , which would not be sustained in favours of near relations ; or where there is no onerous cause ; and thus a base infeftment given be the father , to his own son , will not be cloathed with possession , by the reservation of the fathers liferent , though the reservation of the fathers liferent would cloath a base infeftment granted by him to a lawful creditor ; and the husbands possession is accounted the wifes possession , in so farr as concerns her principal ioynture ; but not in so far as concerns her additional ioynture , in a competition betwixt her and her husbands lawful creditors . sometimes likewise , for the more security a base infeftment , which is given to be holden of the disponer , will be confirmed by the superiour ; but that confirmation does not make it a publick infeftment ; for no infeftment can be called a publick infeftment ; but that which is to be holden of the superiour ; but the use of that confirmation is , that after the superiour has confirmed voluntarly the sub-vassals right , he thereby acknowledges his right ; and consequently , can seek no casuality , which aryses upon want of the superiours consent , such as forfeiture , or recognition ; but because the disponer is still vassal , therefore his superiour will still have right to the rents of the lands , by his life-rent escheate , and to wards , and none-entries by his death ; but if the superiour enter the sub-vassal onely upon a charge , ( this being no voluntar act of his , ) that does not cut him off from those casualities . sometimes likewise , the seller resigns the lands in favours of the superiour , if the lands be sold to the superiour himself , which is called resignatio ad remanentiam ; because the lands are resigned to remain with the superiour , and in that case , the property is said to be consolidate with the superiority , that is to say , the superiour returns to have all the right both of property , and superiority ; nor needs he be infeft of new ; because , as we formerly observed the superiour stands still infeft aswell as the vassal ; but the instrument of resignation must be registrated in this case , as seasins are in other cases , to put men in mala side to buy * the other resignation , is called resignatio in favorem , which is when the seller having sold his feu to a third party , resigns the feu in the superiours hands , for new infeftment to be given by the superiour to that third partie . the warrand of both these resignations is a procuratorie granted by the seller , to a blank person , ( and this warrand is ordinarly inserted in the disposition ) impowering him to resign the feu in the superiours hands ; and this is called a procuratory of resignation ; and the symbols of the resignation are , that it is to be made by staff and baston ; and accordingly , the procurator compears before the superiour , and upon his knee , holding a staff or pen at the one end , which the superiour or any having power from him , holds by the other , he there resigns the feu , either ad remanentiam , or in favorem , as said is ; whereupon an instrument is taken by the person in whose favours the resignation is made , which is called the instrument of resignation ; and thereafter the person in whose favours the resignation is made , ( if he be not the superiour ) is infeft , and his seasin must be registrated within . dayes , as said is . the resignation does not perfectly denude the seller , untill infeftment be taken upon it ; and therefore the first infeftment , upon a second resignation will be preferred to him , who has but the second infeftment upon the first resignation ; but yet the lands will be in non-entrie in the superiours hand , after the resignation is made , untill the person in whose favours it was made be infeft , for otherwayes the superiour would want a vassal , since he could not call him vassal who did resign his to be vassal ; and he had accepted of a resignation from him ; nor is the person in whose favours the resignation is made his vassal ; since he is not yet infeft ; but yet the buyer has a personal action , against the superiour , to force him to denude himself in his favours ; since he has accepted the resignation ; and he will likewise have an action of damnage and interest against the superiour ; if he accept a second resignation , whereby a prior infeftment may be taken to his prejudice , and the superiour gets all his casualities , as ward , marriage , liferent escheat , &c. not by him in whose favours resignation is made ; but by him who resigns , since he remains still vassal till the other be infeft quoad the superiors casualities . title viii . of redeemable rights . another considerable division of heritable rights with us , is that some are redeemable , and some irredeemable . redeemable rights , are these which return to the disponer , upon payment of the sum , for which these rights are granted ; and are so called ; because they may be redeemed by the disponer ; and they are either wadsets , infeftments of annualrents , or infeftments for relief . a wadset , is a right whereby lands are impignorated or pledged for security of a special sum , which passes by infeftment , ( like other real rights ) in the terms of alienation or disposition ; and the disponer does secure himself by getting a reversion from the buyer , wherein he grants and declares the lands redeemable from him , upon payment of the sum then delivered , and of the annualrent thereof , which is pactum de retrovendendo ; and expresses the place and time when it is to be delivered , and in whose hands it is to be consigned ; in case the receiver of the wadset , ( who is called the wadsetter ) refuse to accept his money . these reversions , being against the nature of property , and depending upon the meer agreement of parties , are to be most strictly observed ; and are strictissimi juris ; so that they are not extended to heirs or assigneys ; except they be exprest , and must be fulfilled in the very terms ; and it is not enough that they be fulfilled in equipollent terms : but after an order of redemption is used ; that is , after the granter of the wadset has duely premonished the wadsetter , and consigned the sums due by the wadsetter , it may be assigned ; and though the reversion bears that premonition be made at the parish church , it will be sustained if it be made personally to the wadsetter , for that is a surer certioration . reversions , albeit of their own nature they are personall binding , onely the granter and his heirs , yet they are real rights by our statutes , and affect singular * successours . they and all bands to make reversions , or ●ikes to reversions , must be registrated within . dayes in the same register with seasins ; for else a singular successour is not obliged to regard them * ; so that if any buy the land irredeemably , and compleat his right , he will be preferred ; but they are still valid against the disponer without registration . when the granter of the wadset , is to use an order of redemption , he must premonish the wadsetter to compear , ( and take instruments thereupon , called , an instrument of premonition ) to receive payment of the sumes due to him ; and at the time and place appointed by the reversion , offer being made of the money ; if the wadsetter refuses voluntarly to renounce , and to accept his money , it is consigned in the hands of the person designed in the reversion , or if no person be designed , it may be consigned in any responsal mans hand ; but there must be a paper taken under the consignatars hand , acknowledging that it was consigned in his hand ; for though an instrument under a notars hand , proves that all this order of redemption was used ; yet it will not prove the receipt of a sum against the consignatar . if the wadsetter receive his money , and renounce voluntarly , this is called , a voluntar redemption ; but , because though renounciations be sufficient to extinguish , they are not sufficient to transmit a right ; therefore , if the wadset was given to be holden of the disponer , the wadsetter must resign ad remantiam , in the disponers hands as his superiour ; and thereafter the disponer needs not to be infeft of new ; as no superiour needs ; but if the wadset be given to be holden of the superiour ; then the disponer uses to take a letter of regress , whereby the superiour obliges him to receive him back to be his vassal , when he shall redeem his own lands ; for otherwayes after the wadsetter is seased , the superiour is not obliged to receive him back . if the wadsetter refuses to renounce after the order is used , the lords will force him to renounce , and declare the lands redeemed , by a process , called a declarator of redemption ; after which decreet is obtained , the lands are redeemed , and belong to the redeemer ; and the wadsetter will upon a simple charge of horning force the consignatar to deliver him up the money . the user of the order of redemption , may pass from it at any time before declarator ; and therefore the sumes for which the wadset was granted , are still heritable before declarator ; but after that they are moveable , and fall to executors ; except the declarator be obtained after the wadsetters death , in which case they remain heritable ; and though the wadsetter require his money , he may pass from his requisition , either directly by a clear declaration that he passes from it , or indirectly by intrometting with the duties of the wadset lands , or by taking annual-rent for termes subsequent to the requisition . wadsets are either proper , or improper . proper wadsets , are these , wherein the wadsetter takes his hazard of the rents of the land for the satisfaction of his annualrent ; and payes himself all publick burdens . improper wadsets , are these , wherein the granter of the wadset payes the publick burdens , and the receiver is at no hazard , but has his annualrent secure . and if a wadset be taken , so , that the wadsetter is to have more than his annual-rent ; and yet the granter is to pay the publick burdens , this is accounted usury by our law ; the punishment whereof is confiscation of moveables loosing of the principal sum and anulling the usury , contract , or paction * ; and by a late statute , if the debitor offers security for the money , and craves possession , the wadsetter must either quit his possession , or restrict himself to his annualrent * . and if a man impignorat his lands , or bands , with expresse condition , that if the money be not payed at a precise day , they shall not be thereafter redeemable : the law reprobates this unjust advantage , called , pactum legis commissoriae in pignoribus ; and will allow the money to be offered at the barr ; or they will allow a short time before extracting of the decreet for payment of it . taking of annualrent having been discharged by the cannon law , men did buy annualrents out of other mens lands , which was the origin of our present infeftments of annualrent , and continues still frequent ; by which if men resolve not to rest on the personal security of the borrower , they take him also obliged to infeft them in a yearly annualrent , payable out of his lands correspondent to the sum lent ; but if they exceed the ordinarly annualrent allowed by law , it will infer usury ; and so they have a double security , one personal against the borrower for payment , and another real against the ground , it being debitum fundi ; for which they may poynd any part of the ground ; as also they have good action against the intrometters with the duties of the lands , out of which there annualrents are payable ; though they cannot poynd or exact from the tennents any more then they owe to their master * . these annualrents require a special seasin , like wadsets , and other real rights ; the symbols whereof , if the annualrent be payable in money , is a penney of money ; but if it be payable in victual , it is a parcel of victual . this is singular in infeftment of annualrent , that apprysing , thereupon will be preferred to all prior apprysing , quoad the bygones , of the annualrent , if the infeftment of annualrent was prior to those apprysings to which the apprysing will be drawn back , and preferred to any interveening right , which priviledge is continued in the late act of parliament , concerning debitor and creditor * . these infeftments of annualrent , being properly granted for security of sums are extinguished not only by resignations , but by renounciations ; and even by intromission with as much as might pay the principal sum , which intromission is probable by witness , whether the rent be victual or money , and therefore singular successors buying infeftments of annualrent , are not secure by any register but must rest on the warrandice of the seller , infeftments of relief , are these , which are granted by a debitor to his creditor , for security of sums owing to him , upon which the creditor cannot enter to possession , till he be distressed , and when the sum is payed , the right becomes absolutely null , as being but a temporarie right , and so the debitor who granted the right , needs not be of new infeft , but his former right revives . title ix . of servitudes . the nature and constitution of propertie , and real rights , being explained in the foregoing titles . we shall now treat briefly of servitudes ; which are burdens , affecting property and rights . servitudes are either real , personal , or mixt. personal servitude , is in desuetude amongst christians ; and therefore is not proper to be considered here . real servitude is whereby one mans property , or ground is affected with some burden , for the use and behoove of another man ; which are devided in rural servitudes , and citie servitudes . rural servitudes , are iter , which is , a power of going through our neighbours land ; actus , which is a power of driving carts , or waines ; via , being the priviledge of having high wayes in our neighbours ground ; and aquae-ductus , which is a power and priviledge to draw water alongst their ground for watering of our own . thus via , includes iter , and actus , as the lesser servitudes ; so he that has a via , has also power to drive carts and waines , and to walk himself through the ground burdened with the servitude . the city servitudes , called , servitutes urb●nae , are chiefly five . the first , is oneris ferendi , which is a priviledge , whereby one who has a house in the city , can force the proprietar who has a house below his , to bear the burden of his house ; and he may force the owner of the servient tenement to repair it , and make it fit for supporting the dominant tenement , contrare to the common nature of servitudes . secundo , tigni immittendi , which is the priviledge of forceing our neighbour to receive into his house the jests of ours . tertio , stillicidii , vel fluminis , which , is whereby our neighbor is obliged to receive the drops which falls from our house , under which , is likewise comprehended the priviledge of carrying away our water by sinks and channels . quarto , non officiendi luminibus , whereby he can do nothing that can prejudge our lights , or prospect . quinto , altius non tollendi , whereby our neighbour cannot raise his house higher , to prejudge the lights of the dominant tenement . by our law , servitudes may be constitute by write , without any seasin ; because they are incorporeal rights ; but though a servitude meerly established by write , be sufficient against the granter ; yet they are not valid against singular successors ; except that right be cloathed with possession , which compleats the servitude and makes it a real right ; and they may be likewise established by prescription without any write , from him who has the servient tenement ; though he who is to acquire the servitude by prescription , must have some right in his person , either of a special concession , or else must prescrive it , as part and pertinent of his land . the ordinary servitudes superadded by us , to these of the civil law , are the servitudes of casting fail and divot , common pasturage , and multures . common pasturage , is a right of pasturing the goods and cattel of the dominant tenement , upon the ground of the servient , which is constituted frequently by a charter , containing the clause of common pasturage ; and sometimes by a personal obligement , cloathed with possession ; but albeit it be indefinite , yet it can reach no further than to the proportion of goods of the dominant tenement , which they keep and fodder in winter ; which is done by sowming and rowming , that is to say , the determining the proportion of goods belonging to each dominant tenement , according to the several rowms and rent thereof . common pasturage in our law , does ordinarly comprehend all the lesser servitudes ; such as the casting of faill and divots , presumptively onely ; for the one may be possest without the other ; nor will common pasturage inferr a servitude of casting of fail and divots if he who possessed the common pasturage was interrupted as to the casting of fail and divot . mills , are inter regalia , and require therefore a special seasin ; the symbols whereof are clap and happer ; but if the mill be in a barrony transit cum universitate . mills , are ordinarly dispond with multers and sequels ; the multurs are a quantitie of corn , payable to the heritor of the mill for grinding . the knaveship , lok , and bannock , are a small quantitie payable to the servants for their paines . these quantities , that are payed by those that are thirled , are called , insucken multurs , and those quantities , that are payed by such as come voluntarly , are called outsucken multurs . thirlages , are constitute by write , or by prescription . the wayes of constituting thirlage by write , are these ; first , when a master thirles his own tennents , to his own mill ; in which case ordinarly he deminishes the rent of his land , in contemplation of what they are to pay to the mill , for grinding their corns , which he does by an act of his own court. secundo , when an heritor sells his lands , to be holden of himself , and thirles his vassal to his mill ; in which case he sells so much the cheaper , and so the multures are just . tertio , when the heritor of a mill , dispons his mill , with the multure of his own lands ; in which case the multures are also just ; because he gets so much the more for his mill ; and so this servitude is not so odious as it is believed to be . quarto , if a man dispones the mill of a barrony , cum multuris , or cum astrictis multuris ; in either of these cases , he thereby astricts his whole barrony ; though not formerly astricted ; but if he dispone the mill of the barrony , cum multuris solitis & consuetis ; he i● thereby understood to hav● thirled onely what was formerl● thirled . if the thirlage bears omnigrana crescentia , all the corn growing upon the land wil● be thirled , with deduction onely of seed , and horse corn , and th● ferme ; except it be carryed to another mill , for it is presumed ferms must be sold. quinto , when invecta & illata are thirled , all corns which thole fire and water withi● the astriction , must pay multur● though they come not to th● mill ; but being made in malt are thereafter carryed abroa● out of the thirle . the way of constituting thirlage by prescription , is immemoral , or . years possession , by vertue of some title ; such as a decreet , though in absence ; and even when the master is not called ; and any act of a barron court , though made onely by a bailie , without a special warrand from the heritor ; and though the coming to a mill , past all memorie , does not astrict the comers for the future ; it being a general rule in all servitudes , that , ea quae sunt merae facultatis non prescribuntur ; yet in mills of the kings property , immemorial possession , constitutes a thirlage ; and if men likewise pay dry multures , that is to say , such a quantity , whether they come to grind or not , for . years ; they will be thereby astricted ; for it is not presumable they would have payed dry multure , for so long a time except they had been thirled . if the quantity to be payed , be not determined in write , it is regulated by the use of payment for . years . those who are thirled , are also obliged to maintain the mill in its dammes , water-gangs , and to bring home its mill-stones . if such as are thirled , bring not their corns , they are persued by an action called , abstracted multures . there are two rules to be observed in all servitudes . primo , res sua nemina servit , no man can have a servitude on what is his own ; and therefore if the land on which we have a servitude become ours , the servitude is extinguished . secundo , when we have a servitude on any other land , this servitude affects every foot of that land , unaquaeque gleba servit ; but this is to be taken civiliter , & non judaice ; so that it must be reasonably used ; and thus , if we fen out some acres , with priviledge to the feuer to cast faill and divot upon our moor , for maintaining his houses ; though in strict law , every part of the moor is affected with the servitude ; yet the lords will allow any man to tile and sow his own moor , leaving such a proportion , as may maintain these houses . mixt servitudes are partly real , and partly personal ; and by the civil law are divided in usu fruct , use , and habitation . usus-fructus is called liferent in our law ; which is a right to use and dispose upon any thing during life , the substance thereof being preserved . use and habitation were restricted to the naked use of the liferenter ; whereby his power of disposing and making profit of the thing liferented was restrained ; and are not in use with us . liferents are either constitute by paction ; or by law ; liferents by paction , are either by reservation ; as when a fiar denuds himself of the fie in favours of another , reserving his own liferent ; or by a new constitution ; as when the fiar dispons his lands to another , during all the dayes of his life ; the first needs no infeftment ; but the second does ; else it is not valid against singular successors ; but the liferenter being infeft , transmits his right to any by assignation without infeftment ; for being a servitude and personal right , it neither needs , nor can admit of a subaltern infeftment . a liferenter also by reservation , may enter the heirs of vassals ( though he cannot receive singular successors ) if he was himself infeft ; but another liferenter cannot ; and even a liferenter by reservation cannot enter those vassals , if he was not once infeft ; because he cannot transmit a right which he has not . when moe persons are joyntly infeft , they are called conjunct fiars ; but though a wife be a conjunct fiar ; yet her fie lasts but during her life ; and during her life , she may enter vassals , and has right also to all the casualities , as other fiars . liferents by law , are the terce , and the courtisie . the terce is a liferent of the third of all the tenements , wherein the husband dyed infeft , provided be law to a wife , who is not excluded by express paction ; or is not provided to as much as will be eqvivalent to the terce * ; which terce is constituted by an inquest , who upon a brief out the cbancellary , directed to the sberriff , or other judge ordinary , doe serve her to a terce ; upon which service , the judge to whom the brief was directed without retouring it , divids the land betwixt the heir ; and relict , and expresses the marches in an instrument , and this is called to kenne her to her terce ; the marches being kenned by the instrument ; and though the service gives her right to the meals and duties ; yet she cannot remove tennents , till she be kenned , as said is , the kenning being equivalent here to the seasin in lifrents . this brive contains two points ; first , that the bearer , was lawful wife , to the defunct and secundo ; that he dyed infeft in such tenements , but if the relict was holden and reput lawful wife , in her husbands life ; no exception in the contrary will stop the service † . there is no terce in burgage lands , feu duties , or other casualities , nor in reversions , tacks , nor patronages . the courtisie , is a liferent , granted by law , to him who married an heritrix , of all her heritage , and of that only ; it needs neither seasin , nor other solemnity to its constitution ; but is ipso jure , continued to him ; if there were children procreated of the marriage , who were heard to cry ; though the marriage disolve within year and day . all these liferenters are obliged to find caution to preserve the thing liferented , and to leave it in as good condition as they found it , which is called cautio usu-fructuaria ; and they are also bound to aliment the appearand heir if he have not aliundi , to aliement himself * . if liferenters survive martinmess ; or if they die upon martinmess day , in the afternoon ; their executors will have right to the whole years rent , whether it be land rent , or the rent of a mill ; albeit the conventional termes were after martinmess ; but if liferenters labour the lands themselves , their executors will have right to the whole rent thereof , albeit they die before martinmess . title x. of teynds . teynds * , being a burden affecting lands , fall in to be considered in this place . teynds are designed to be that special and liquid proportion , or quota of our goods , and rents lawfully acquired that is due to god , for maintaining his service . it seems our law has followed the opinion of those divines , who think , that some proportion of our goods is due by divine right ; for we say , that teynds are the spirituality of the churches revenue ; but that the proportion is not iuris divini ; for we alter the proportion by special laws and customs ; though for distinctions sake we call this proportion the tenth . by the canon law , they are divided into personal teynds , which arise out of the personal gaine and profites , that a man has by his trade ; predial teynds which aryse from the natural product of the land that men possess . and mixt teynds which arise from the profites , that men by their personal industrie make out of their lands . they are likewise divided into parsonage teynds , which are due to the parson ; and viccarage teynds , which are due to the viccars ; and regularly all teynds are due to the incumbent , who serves the cure ; so that if the incumbent be a parson , he has a right to the parsonage teynds ; and if he be a viccar , he has right to the viccarage teynds . the teynds of corn , are called parsonage teynds , or decimae garbales ; and the fifth boll of the free rent is still teynd with us ; and all land must pay teynd ; except they be such as have been feued out of old by church men , before the lateran council , by which they were prohibited to alienat the teynds , and who had right both to stock and teynd ; and where the teynds were never known to have been separated from the stock . some monks likewise got particular exemptions from paying teynds , for these lands which they themselves did bring in , and cultivate ; and with us the priviledges granted to temple lands , which belonged of old to the knights of st. iohn , a religious order ; and to the monks of the cisterian order , are continued to those who have right to their lands , with that exemption : manses , and gleibs , are likewise free from payment of teynds . viccarage teynds , are called the small teynds with us ; because they are payable out of inconsiderable things , such as lambs , wool , cheese , eggs , &c. and they are said to be local ; because they are payed according to the custome of the place ; so that in the same parishes , some heritors , will be lyable for viccarage teynds of different kinds ; for though no man can prescrive a liberty from payment of parsonage ●eynds , since the lateran council ; yet , as . years possession is a sufficient right to a minister , for viccarage teynds ; and as it does determine the quota , as well as the species of viccarage teynds ; so by . years freedom , the heritour is secure in all time coming , from payment of viccarage teynds . when popery was supprest , all the lands belonging to monks , and others , were annexed to the crown , in anno * but the teynds belonging to them were not annexed ; these being acknowledged by our law , to be the patrimony of the church ; and they are therefore called , the spirituality of the benefices . the monastries of old , having gotten several parish churches mortified to them ; whereby they had right to their parsonages teynds ; such as got those monastries disponed to them , erected in their favours , became thereby to have right to other mens teynds ; and great emulation as well as prejudice arising from mens not having right to lead their own teynds . king charles the first , did therefore prevaile with all the the saids titulars of erection , to submit what should be payed them , as the price of the saids teynds ; and his majestie did determine , that the rate of all teynds , should be the fifth part of the constant rent ; where the stock and teynd were accustomed to be set joyntly ; but the fourth part onely where the teynds were usually set separate from the stock ; a fifth part being deduced by the king in that case ; because ordinarly church-men used to draw too great a proportion ; and this deduction is therefore called the kings ease ; as also , that the saids teynds being valued , should be bought at nine years purchase * . for effectuating this determination , the parliament . appointed some of their own number , to value the saids teynds , and after a process for valuation is raised , before these commissioners , in which the titular his tacksman , and the minister ; are to be cited , the heritor in the mean time gets the leading of his own teynds . the probation is ofttimes allowed to both parties in this court ; and where one party is preferred , it is called ; the prerogative of probation ; and is much contended for ; and is thus regulated , viz. either the teynds are drawn ipsa corpora , by the titular , or tacksman ; and then they have the sole probation allowed them , to prove what the teynds were worth . ( they proving that they led seven years of . before ; ) or else they have rental bolls payed them ; & eo casu , they have the sole probation likewayes , they proving . years possession of uplifting rental bolls , condescending upon quantitie and qualitie ; or tertio , the heritors have tacks of their own teynds , for payment of silver dutie ; and then there is joynt prabation allowed both to heritor , and titular . ecclesiastick persons , such as bishops , parsons , &c. submitted only what they were not in possession of ; and therefore , there can be no valuation led of any teynds , parsonage , or viccarage which they were actually in possession of ; but by a letter from his majestie thereafter in anno ; it is declared , that ; if there teynds be set to tacksman , they may be valued during the tack ; whereas the teynds they were in possession of cannot ; though teynds holden of collegiat kirks may be valued ; and so may be bought and sold. the burrows are onely decerned to sell the superplus , of the teynds they had right to , over and above what was due for the intertainment of their ministers , colledges , schools , and hospitals . after the teynds are valued , and the titular decerned to sell ; or if the titular be willing to sell without a decreet ; the heritor is infeft ; and seased by the titular , who in the disposition , or charter reserves to himself relief of the kings annuitie , and of all imposition ▪ laid or to be laid upon teynds ; and warrands only from his own , and his predecessors facts and deeds ; and on the other hand the heritor who has got a decreet of valuation and not of vendition ; is obliged to infeft the titular ; for securitie of the valued bolls . by the foresaid decreet arbitral , the several parish kirks were to be provided ; and therefore the titular might allocat any one heritors teynds , for provision of the minister ; and so he was excluded from the priviledge of buying , whereas , it had been much better , that the stipend had been proportionably laid upon all the heritors . teynds are not debita fundi ; and so singular successors are not lyable in them ; but yet the minister has so far a taci● hypothique , that he may exact his modified stipend from any of the heritors ; as far as hi● teynds will extend , reserving relief to that distressed heritor ▪ and if the heritor sell his crop , the merchant , who buyes the same will be lyable ; but tennents will not be lyable , if they pay a joynt dutie payable to thei● master for stock and teynd . when the tack of teynd ▪ expire ; the titular needs no● use a warning against the tacks-man as in lands ; but he raise● and executes an inhibition against the tacksman , whic● interrupts tacit relocation , fo● that and all the subseque●● years , after which the introme●●tors , are lyable to a spuilie . the parliament . did after the said submissions and decreet arbitral , grant to his majestie an annuitie out of all teynds ; except those payed to bishops , and other pious uses ; viz. ●en shilling out of every boll of teynd-wheat ; out of the boll of the best teynd-bear , eight shilling ; out of oats , peas , and rye , six shilling , where the boll of these grains did yield a boll of meal ; and where the rent consists of money , six merks out of every hundered ; and this annuity is debitum fundi ; but not being annext to the crown , it may be , and is ordinarly bought by the heritors , from his majesties theasurer , or others having right from the king. title xi . of inhibitions . property , and real rights , with the burdens affecting the same , being explained : it is fit now to treate of legal diligences , by which these rights may be ●victed , or the free use and disposal thereof restrained ; which diligences are chiefly three , inhibition , comprysing , and adjudication . inhibition , is a personal prohition , by letters under the signet , discharging the partie inhibit to sell , dilapidate , or put away any of his lands , in prejudice of the debt due to the raiser of the inhibition ; the ground and warrand thereof is an obligation , or bond for doing and performing any thing ; or a depending process ; and if these inhibitions be not raised upon legal and relevant grounds , they may be reduced . inhibitions reach onely heritage , but not moveables ▪ though the stile thereof runes equally against both ; but moveable bands may be reduced , in so far as they may be the foundation of real diligences to affect heritage ; and they extend only to posterior voluntary rights granted after inhibition ; but not to apprysings , or adjudications , though led posterior to the inhibition , if the ground thereof was anterior ; neither do they extend to posterior dispositions , and infeftments depending upon prior obligements ; either general or particular , for granting of these rights ; nor to renounciations of temporary rights ; albeit posterior to the inhibition , these being necessar upon payment . but by a late act of sederunt * , if the creditor intimat by way of instrument , to the person having the right of reversion , that the wadsetter , or annualrenter , stands inhibit at his instance ; and does produce in presence of the parties , and notar , the inhibition duly registrated ; the lords will not sustaine renounciations , o● grants of redemption ; although upon true payment ; unless there be a declarator of redemption obtained , to which the inhibiter must be cited . the way of executing inhibitions is , that the same must be by a messenger against the person inhibit , personally , or at his dwelling place , and at the mer●at cross of the head burgh of the shire , stwartry , or regalitys where the person inhibit dwells * , and after crying of three several oyeses , and publick reading of the letters , the whole leiges are discharged to purchase any lands or heritages , from the person inhibit ; and the messenger leaves or assixes a coppy of the letters at the mercat cross ; all which most be written in a paper , and subscrived by the messenger and by two witnesses * ; which write , is called the execution of inhibition ; and there ▪ after the letters and executions thereof must be registrated within dayes , after the execution thereof ; either in the general register at edinburgh , or in the particular register of the iurisdiction , where the person inhibit dwells ; or the major part of the lands lye * ; and if any of these acts be omitted the inhibition is null , these being de solenitatibus instrumenti . title xii . of comprisings and adjudications . the fie being thus settled in the vassal it may be either taken from him , and evicted for his debt , or his crimes ; the first , is , by apprysing , and adjudication , and the last , by confiscation and forefaulture . apprising proceeds by letters charging the debitor to compear before a messenger , ( who is by the letters made iudge ; and sherriff in that part in place of the sherriff of the shire , whose office properly it is * ) and to hear the lands specified in the letters , apprised by an inquest of . sworn men , and declared to belong to the creditor for payment of his debt ; but because our law thought it not just that a mans land should be taken from him whilst his moveables could pay his debt ; therefore , in the first place , the messenger who executes the letters must declare , that he searched for moveables ; and because he could not find as many as would pay the debt ; therefore he denounced the lands to be apprised on the ground of the lands , and at the mercat cross of the shire , stewar●ry , or regality where the lands lye , and left coppies both on the ground , and at the cross. at the day appointed by the letters , the messenger who is made sherriff in that part , fences a court , and the debitor being called , his lands is offered to him for the money ; and if the money be not ready : the inquest finds that the debiors lands should belong to the creditor for his payment , and this is called a decreet of comprising ; and the most part of the inquest affixes their seals thereto ; upon which the compryser gets a charter past in exchequer , and is infeft by precepts out of the chancellary ; if the lands hold of the king ; and though of old , land apprysed , was proportioned to the money ; yet thereafter whatever land was ●ought to be apprysed was accordingly apprysed ; though farr exceeding the sum in value , because seven years was given ( which was thereafter prorogate to ten * ) for redeeming the land by payment of the true sum , and this is called a legal reversion ; because the law gives it to the debitor ; and if it be not redeemed within that time , the land belongs to himself for ever ; but that legal runs not against minors ; because they want iudgement to know their hazard ; so that they may redeem at any time before they be . years compleat ; but if the comprysing expyre during their minority ; the compryser will thereafter have right to the whole mails and duties , albeit exceeding his annualrent ; but that part of the act is altered by a posterior statute , and the appryser is restricted to his annualrent during the minority of the debitor * . if a minor succeed to a minor , whose lands are apprysed , he has right to redeem , as if the comprysing had been led against himself ; but if a major succeed to a minor , after the legall is expired , he hath onely year and day to redeem ; and if the seven years be unexpired in the minors time , the major may redeem within these years that are not run : and if the rent of the lands be not correspondent to the annualrent of the money ; whoever has right to the reversion , whether major or minor , must satisfie the whole sums and annualrents resting before he can * redeem ; but the compriser during the legal is restricted to the annualrent of the sums due to him ; and the superplus of his intromission will be imputed in payment of his principal sum ; and if he be payed by intromission , within the legal of his whole principal sum , bygone annualrents , and expenses , with the composition payed to the superior , the comprising expires , ipso facto * . though the supiriour be not regularly obliged to receive a singular successour ; yet least by collusion betwixt the debitor and his superiour , the true creditor should be unpayed ; therefore by a special act of parliament , the superiour is forced to receive a compryser upon payment of a full years duty of the land * , and he gets no more from all ; though many comprisers charge him to receive them ; but if the superiour pleases he may retain the land to himself , he paying the debt . the first comprising , without seasin , carryes right to all tacks , reversions , and other rights , which require no infeftment ; and all posterior comprisings need not seasin ; because they carry onely the right of reversion ; but yet ordinarly second apprisers do infeft themselves , because the first may be null , or become payed ; or the first compriser may lye out from seeking meals and duties ; or the second compriser would remove tennents , which none can pursue without being infeft , but the superiour comprising needs no infeftment . after denounciation of the lands to be apprised , the debitor can do no voluntar deed by disponing , or resigning ; ( because else he might frustrate the diligence ) except he was before denounciation specially obligedto dispone or resigne . in a competition amongst apprisers , the first infeftment , or charge against the superiour is alwayes preferred ; and if the first compriser did diligence to be infeft , but was stopt by collusion , as if the superiour to gratifie the second compriser , should unjustly suspend the first ; albeit the second appriser be first infeft , yet the first appriser having done diligence by charging , the superiour will be preferred to the second appriser first infeft . the compriser during the years of the legal is not obliged to enter to the possession , but if he once enter he must be comptable for the meals and duties though he leave off to possess ; but if the meanest part of the sum be unpayed after the expyring of the legal , the whole land comprised belongs to the compriser without consideration of what he has intrometted with ; to prevent which the debitor , or a second , or any posteriour compriser , who has comprised the right of reversion , does before the legal expire , require the compriser to compear at any day , or place , to receive his money , in so far as he is not payed by his intromission ; and having consigned the same accordingly at that day , he raises an action of compt and reckoning before the lords of session ; and if it be found that he is payed by intromission , and the money consigned ▪ the lords decern the comprising to be payed , and extinct ; nor needs the debitor get new seasin ; for the former right revives ; since the fie was still in his person , upon condition , that he would pay the sum within the legal . in this compt and reckoning , the compryser will get allowance of the sherriff fie ; which is the twenty penny of the sum that was comprysed for , and of the entrie payable to the superiour , though the appryser truely payed neither ; but he will not get payment of a chamberlane fie for taking up the rent ; except he really payed it . all apprisings led since the first of ianuary , . within year and day of the first effectual comprising by infeftment , or charge against the superiour , come in pari pasu , as if they were all contained in one apprising . but the posterior apprisings within year and day ; must pay their proportion of the expenses of the infeftment , and composition given to the superiour by the first appriser ; because appearand heirs did frequently acquire rights to expired apprisings against their predecessours , by which they bruicked their ●state , without paying his debt , to the ruine of lawful creditors ; therefore , our law did very justly ordain , all such apprisings to be redeemed for the sums truely payed out by the appearand heir ; which proceeds , albeit the appearand heir acquire these rights in his predecessours lifetime . but if the expired apprising was acquired gratis , by the appearand heir , the same is onely redeemable by the creditors , for the sums contained in the apprising * . because the parliament thought it exhorbitant to take the greatest estates for the smalest sums , and to make a messenger iudge in affairs of so great importance . therefore in anno . this way of comprising was altered , and in place thereof the creditor now gets land adjudged to him by the lords of the session , proportionally to th● sum● due to him for obtaining in●eftment , with a fifth part more ; because the creditor is obliged to take land for his money ; which adjudication coming in place of comprisings is perfected by charter and seasin , as comprisings ; and the superiour is obliged to receive the adjudger * ; but it is redeemable onely within five years by majors . if the debitor compear not to concur for compleating the adjudgers right , by giving him a progress , & transumpts of the evidents , and ratifying the decreet of adjudication ; then the whole lands may be adjudged , as they were formerly apprised ; it being unreasonable ●o s●rce a man to take proportional land for his money , and yet to be unsecured even for that proportion ; and they are redeemable within ten years ; ( these adjudi●ations being now come in the place of apprisings ) , and have the same priviledges and restrictions which comprisings had by the act of parliament , made concerning debitor and creditor , in * anno . but if the creditor attain possession upon his comprising , or adjudication ; he can use no further execution against the debitor , except the lands be evicted . there are other two kinds of adjudications , allowed by our law ; the first is , when the appearand heir of the debitor is charged to enter heir ; and renounces to be heir ; the creditor having obtained a decreet , cognitionis causa , fo● constituting the debt , wherein the appearand heir is onely pursued for formality ; but the decreet can have no effect personally against him ; the hereditas j●cens will be adjudged to the creditor , for payment of the debt due by the defunct ; which if it be liquid , and instantly instructed ; the pursuer in the same process protesting for adjudication , the same will be allowed to him , summarly without necessity of any other decreet , cognitionis causa . these adjudications are redeemable within seven years , at the instance of con-creditors , one after another , who have likewise obtained decreets of adjudication ; and a minor renouncing to be heir , may be reponed , and allowed to redeem upon payment * . and if the superiour be charged to infeft the adjudger , he will get a years rent for composition , as in comprising * . adjudications , carry right to all which would have fallen to the heir ; as all heritable rights , and the whole bygone rents and duties , since the defuncts death may be adjudged ; because these belonged to the heir . there is another kind of adjudication competent by our law ; that is for performing any obligement which consists in facto , and relates to particular dispositions ; or obligements to infeft and after diligence used by decreet , and registrated horning against the disponer , and his heir , for making the same effectual : the lords will adjudge the lands disponed to the pursuer as a remedium extraordinarum there being no other remedy competent . this adjudication extends no farther than to the thing disponed ; and hath no reversion ; nor does it require charges to enter heir , or renounciation ; but the authours right must be instructed . confiscation will be handled in the title of cryms , and criminal processes . the institutions of the laws of scotland . part third . title i. of obligations , and contracts in general . having thus cleared real rights ; we will now proceed to treate of obligations , and personal rights . an obligation , is de●ined to be that legal ●ye ; whereby we are bound to pay , or perform any thing . the chief division of obligations by the civil law , and ours , is , that some are natural ; because they arise from the principles of right reason , or laws of nature . some civil , because they arise from positive laws , or municipal customs . another considerable division of obligations is , that some arise from contracts ; some from deeds , resembling contracts ; some from malefices , and some from deeds which resemble male●ices , ex contractu , aut quasi contractu ; ex male●icio , aut quasi male●icio ; for we become equally tyed and obliged to men ; either by contracting expresly with them ; or by doing some deed which induces an obligation without an expresse paction ; or by committing malefices against them . a * contract is an agreement entered into by several persons , inducing an obligation by its own nature ; * and the obligations arysing from contracts , are divided and distinguished , according as they are perfected , either by the sole consent of the contracters ; or by the intervention or tradition of things ; or lastly , by word or write ; hence is that remarkable division of contracts in the civil law , qui re , verbis , literis , aut concensu perficiuntur . the contracts which depend upon things , are these which arise either from borrowing ; ( which comprehends indebite solutum , ) or from loan ; or from depositation ; or from impignoration ; and are called mutuum commodatum , depositum & pignus . * borrowing , or mutuum , is that contract , whereby a man getting any thing from another , is obliged to restore him not the same thing that was borrowed , but the equivalent ; or as much of the same quality in measure , number , or weight ; as when one borrowes a thousand pounds , the receiver obliges himself to restore not the same ; but another thousand pounds ; and therefore the propertie of the thing borrowed , being transferred from the giver to the receiver ; the receiver runs the hazard of all the losse that the thing borrowed can sustain , after it is delivered : this contract is most strictly interpreted , so that nothing is understood but what is clearly exprest . * loan , or commodatum , is that contract whereby a man gets the loan of any p●rticular thing gratis , for some special use , and obliges him to restore the same thing in specie ; and not the equivalent ; as when a man gets the loan of a horse , or coach ; and because in this case , the propertie remains with the lender , therefore if the thing lent be lost , or perish by chance , the losse redounds to the lender ; for the thing is still his ; but if the thing be lent meerly for the advantage of the borrower , he is lyable to do most exact diligence ; and therefore , if the thing perish , or sustain any prejudice for want of exact diligence the borrower must make up the same ; but if the thing was lent for both the borrower and the lenders advantage , then from the same principal of natural equity , the borrower is only obliged to do such diligence , and to be so carefull of the thing borrowed as he would have been of his own . in this contract , the receiver is obliged to restore the same species in as good condition as he got it ; and the lender is obliged to pay the receiver any considerable expense , that he necessarly bestowed upon the thing borrowed , the law not allowing inconsiderable expenses ; because , the borrower has the use of the thing , which should compense these . precarium , is , when any thing is lent to be called back at the lenders pleasures , wherein it differs from commodatum ; which imports alwayes a determinate time for making use of the thing lent depositation , is that contract which is entered into by one mans delivering any thing , into the custodie of another to ●e k●pt gratis for his use ; and therefore , because in this contract , the propertie remains with him , who did depositate the thing , if it be lost , it is lost to him ; and since depositations are made for the behoove of him who does depositate ; therefore , the depositar ( for so we call him , in whose hand the thing is depositated ) is only lyable if the thing depositate , was lost by the depositars dole , or gross fault ; nam d●●ositarius tantum prest●t dolum , & latam ●ulpam ; yet inns-keepers , s●ablers , and masters of ships , are lyable to most exact diligence , in preserving the goods of travellers and passengers , which they bring into their houses , and ships , and to repair and make up all the loss they may sustain , while they are in the inns , or ships , whether the prejudice come by the servants , or mariners , or by strangers , which special kind of depositation , is introduced by equity , contrare to the common rules of depositation , and which we have immediately from the civil law , and edictum praetoris , intituled , na●tae caupones stabularii , &c. as in this contract , the depositar is lyable to restore the same thing that is depositate , and not the equivalent ; so the depositor is obliged to pay the depositar what he bestowed upon it , whilst it did lye beside him , for generally a gratuitous office , ought to prejudge no man. but he cannot crave compensation upon any debt due to him by the despositar , which is singular in this contract . pledge , is the contract , whereby one man gives to another any thing , for the receivers security for what he owes him , to be redelivered upon payment ; and therefore , because the thing it self in specie , is to be redelivered ; if it perish during the impignoration , by the gross fault or fraud of him who receives the pledge , it perishes to the impignorator ; and because impignorations are made for the advantage both of the giver and receiver , ( the one being concerned to get money , or some such thing upon the pledge , and the other to get a pledge for security of his money ; ) therefore he who receives the pledge , is lyable to do such diligence for preserving thereof as prudent men use to do in their own affairs ; but he is not lyable for culpa levissima ; the contract being for the behoove of both parties ; and he will have repetition from him ; for what he profitably bestowed upon it during the impignoration . sometimes what is impignorated is not delivered , and then the pledge is called an hypotheque , and the law sometimes makes such ●acit hypotheques without express paction , as where it makes the ●orn growing upon land , or the goods brought in to the house , that was set in tack , to be lyable to the heritor for payment of his rent . if one man payes to another more than is due to him ; or what is not due at all , the law allowes to him repetition of what was unjustly payed ; and this is called ( condictio indebiti ; ) because by paying to you , i oblige you really and in effect , to repay what shall be found not to be due ; or to have been payed more than was really due ; but since this obligation arises from the payers ignorance , therefore if he knew that what he payed was not due , he will not get repetition ; but what he payed will be lookt upon , as a donation , but it must be ignorantia facti , for ignorantia juris availeth no man ; and since this repayment is only allowed by the principles of natural equity ; therefore if what was payed was due in equity , though it was not due by positive law , the payer will not get repetition . title ii. of obligations by write , or word . some obligations , require write , to make them binding ; whereas others require write only by way of probation , that is to say , cannot be proven without write , though they be valid , and binding without it . all obligations for transmitting the reall right of lands , do so far require write of their own nature ; that though the bargan be solemnly and clearly ended , by verbal transaction ; yet there is still place to resile , or locus penetentiae , till the write be signed . though verbal promises do● by our law , bind the promiser ; yet because the position and import of words may be easily mistaken by the hearers ; therefore verbal obligations or promises can only be proven by oath of partie , and not by witnesses , though the sum be never so smal . because , mens subscriptions may be easily counterfitted ; therefore by an express statute with us , no obligation though in write for more than lib. is valid ; except it be signed in presence of two subscriving witnesses , if the partie can write ; or by two notars , and four witnesses ; if the partie cannot write * ; except the write be holograph ; and that the writter and witnesses be specially designed * ; and though the subscriving by two initial letters be sustained , where it is proved that the subscriver was in use so to subscrive ; yet the granters mark is not sufficient , except the verity of the affixing that mark be referred to the granters oath . such is the favour of commerce , and such expedition it requires , that upon its account , bills of exchange are sustained ; though they be not signed before witnesses ; and delivery of goods , upon bargans are sustained to be prov'd by witnesses ; though there be no write ; and such is the favour of contracts of marriage ; especially where they are become nottour by the subsequent marriage , that they are sustained though there be no witnesses . by our law , an obligation in write is not binding ; except it either be delivered , or dispense with the not delivery ; by a special clause therein ; nam traditione transferuntur rerum dominia ; but tradition is not requisite in mutual contracts ; and if the write be in his hand , in whose favours it is made , it is presumed to have been delivered ; and cannot be taken from him upon the pretence of not delivery ; except it be referred to his oath that it was never a delivered evident by the granter . title iii of obligations , and contracts arising from consent , and accessory obligations . though all contracts require the consent of the contracters ; yet there are four , viz. emption , location , society , and mandat ; which are said in a more special way to arise from consent ; because these contracts are perfected by meer consent of parties , without any further solemnity , or tradition ; and thus how soon two parties agree , concerning the price of any thing that is to be sold , that contract is by meer consent so far perfected , that he hath the seller precisly obliged to deliver the thing bought and perfect the sale ; albeit the dominium or property be not transferred , but remains with the seller untill delivery ; and if the thing bought perish without the sellers fault , even before delivery , the losse is the buyers , in respect of the personal obligement upon the seller , to deliver it , and the buyers right is established even before tradition ; and though earnest , or arles be given as a symbole or mark of agreement ; yet the consent without the earnest or arles ( as we call it ) compleats the bargan ; and if the earnest be in current money , it is to be imputed as a part of the price . in this contract of emption and vendition , their must be a price , consisting in numerate , and down told money ; for if one thing be given for another the law calls that contract , permutation , or excambion , and not emption , and vendition ; and this price must be certain and definite ; but if the price be referred to another , the bargan will subsist ; except that third partie , to whom it was referred , either will not , or cannot determine the price . location and conduction , is a contract , whereby a hyre is given , for the use and profite of any thing , or for the work of persons ; it differeth from emption and vendition , chiefly in this , that the designe of that contract is , to transferr the property ; but in location the property remains with the setter . this contract , being entred into by the mutual consent , and for the advantage of both parties ; the conductor is only lyable , to use and adhibite a moderate diligence , for preserving the thing set ; that is such diligence as prudent men , adhibite in their own affairs ; so that if the same perish without his gross and supine negligence ; or fraud , he is not lyable to make it up to the locator . location or setting of lands for a certain hyre , ( called the tack-dutie , ) is frequent in scotland ; and it is to be observed that if the ground yield no increase , but is absolutely barren , without the fault of the conductor ; the hyre will not be due , since that was given for the profite and use of the ground ; but if there be not an absolute sterility ; and that the land yield some profite , though never so little ; the hyre will be due , if the profite but exceed the expence of the labouring . from this contract there arise two actions , the one whereby the conductor is obliged to pay the hyre agreed unto ; and to restore the thing set after the end of the location , in as good condition as he got it . the other is an action whereby the locator is bound to refound to the conductor , the necessary expenses imployed upon the thing hyred , during the location . vide supra , part . title . society , is a contract , whereby several persons obliege themselves to communicate losse and gain arising from the things common in the society . all the partners in the society , do by the nature of this contract share equally ; except it be otherwise provided ; and if either the share of the gaine or losse be expressed , the one regulates still the other ; but because some mens pains are of as great value , as other mens money , therefore it is lawful and consistent with the nature of society to contract so , as that one may have the half of the gain , and no losse ; but the contract would be null , if it were provided , that one should have all the gain and no losse , for there could be no compensation , though the other were never so skilful . by this contract , all the partners are obliged to advance for the affairs of the society , according to the shares they have in it . the society is extinguished , and the persons who entered therein loosed therefrom by the death of any of the partners ; or by their becoming insolvent ; except it be otherwayes provided ; for this is a personal contract , wherein men respect the humour and industrie of one another ; and so this contract is disolved , by the simple renounciation of any of th● partners ; so that every one has a negative vote , and if the society be entered into , with this condition , that it should not be dissolved at the option of any of the partners ; the law did reprobate such pactions ; and from the same principle likewise it is , that partners in a society , are not lyable for further diligence , then they used to adhibite in their own affairs ; for having voluntarly choosed one another for partners ; it is presumed they are satisfied with one anothers diligence , the contract being entered into for the behoove and profite of all the partners . * mandate , is that contract whereby one employes another to do , or manage any business ▪ gratuitously ; for if he who is employed get a reward , it is not properly a mandate , but locatio operarum , or a seeing of the person so employed ; but yet if the receiver of the mandate has been at any expense upon the account of the mandate , the employer must pay it . he who receives the mandate is obliged to execute the same , according to the rules prescrived by the employer , and not to exceed the bounds of his mandate ; and therefore if titius imployed seius , to buy him , such a particular piece of land for lib. titius is obliged to ratifie his bargan ; though he buy it for lib. because ten comprehends nine ; but if he pay lib. for it ; he is not obliged to ratifie the bargan ; because he exceeds the bounds of his commission . mandates , expire either by the revocation of the employer , if the thing or business in which he was employed be intire ; or by the death either of the person employed , or of the employer , or by the renounciation of the person employed ; but in all those ●ases ; if the thing undertaken be not intire ; the person employed may and must proceed to execute the mandate , ●otwithstanding of the revocation , death , or renounciation . mandatars are lyable for exact diligence , & culpa levissima ; because albeit the mandate be only gratia mandantis , yet the very nature of it implies diligence . mandates , are either express arising , from express consent ; or tacit , which are inferred by signs and ta●iturnity ; as for instance , if a person present suffers another to act in his affairs ; he is understood to give him thereby a tacit mandate . secundo , mandates are either general for managing all affairs ; or special , for doing some particular business , conform to the precise tenor of the commission ; & albeit general mandates contain a most ample power of administration ; yet they are not extended to committing of crimes : or , secundo , to donations ; albeit where there is any probable cause , gratifications may be allowed ; which will be regulate secundum arbitrium boni viri ; this being contractus bonae fidei , which implyes exuberant trust . tertio , no general mandate will imply a power to alienate immoveables ; or to submit or transact any litigious business . quarto , if in the general mandate some speciall cases are exprest , it will not be extended to cases of greater importance , than those exprest . the great favour of commerce , has introduced another kind of tacit mandate ; by which exercitors of ships , and prepositors are obliged by the contracts of the masters of the ships , and of the institors , in relation to the ships and voyage ; or to the particular negotiation wherein they are intrusted . exercitor , is he to whom the profit of a ship doth belong ; whether he be the owner , or hath onely freighted the ship : the master is the person intrusted with the charge of the ship , who has power to oblige the exercitor , by contracting for the reparation , and out●igging of the ship ; and in matters relating to the voyage . institors , are intrusted with particular negotiations at land , such as keeping of shops , &c. and they oblige their prepositors , in relation to the affair wherein they are intrusted , as exercitors are in maritim affairs . neither the masters of ships , nor institors , need show their commission , but their being in the office is sufficient to oblige the exercitors , and constituents . and if there be many exercitors the masters contract obliges them all in solidum ; albeit what was borrowed be not employed for the use of the ship ; only it must be known to the lender , that the ship stood in need of such reparations ; and the facts of the institors , will oblige their constituents of whatsoever sex or age they be ; and even though they be pupils , minors , or wives , who cannot validly oblige themselves ; for they have themselves to blame who intrusted such persons . as all those obligations and contracts arise from express consent , so others arise from tacit consent ; such as homologation ; as for instance , though a man be not obliged by a bond granted in minority ; yet if he pay a part of it , or annualrent for it , after he is major ; the obligation is thereby homologated or own'd , and becomes valid ; not from the time of the homologation , but from the date of the write ; and therefore it is fit that such as design not to own , null , or invalid deeds , should abstain from doing any thing , that may inferr an approbation of them ; but because homologa●●on , is actus animi , therefore it should not be proven by witnesses . because all obligations , cannot be bound up under general and regular names of contracts ; therefore the law allows some obligations , to pass under the name of quasi contractus ; because they have the resemblance , and are of the nature of contracts ; and these are negotiorum gestio , whereby if any person manage your business advantagiously for you ; you are lyable to him for his expense ; though you gave him no mandate ; least such as are absent should be prejudged by the negligence of their friends ; as the manager is lyable to refound to the person whose affairs he managed , any prejudice done to him since , else any man might be invited officiously , to middle in another mans affairs to his disadvantage , but this is to be understood , si in utiliter gesserit ; otherewise if he acted profitably ; albeit the event do not succeed , he will get his expenses . the other quasi contractus , are tutorie , communion of goods , entering to be heir , the obligation of repayment that arises upon payment of what is not due ; for if one be tutor to you , he enters in a kind of contract with you , whereby he is bound to administrate your affairs , and you are bound to pay him his expense ; but of all these i have treated elsewhere in their proper places , as i shall do of malesices , and and what resembles them , when i come to treat of crims ; of which these may be properly said to be branches . having thus treated of principal obligations ; the only accessory obligation that i need mention is cautionary ; whereby one man becomes surtie for another ; either to pay a sum , or perform a deed ; betwixt which two , there is this difference , that these that are cautioners for a sum , if they be bound conjunctually and severally , with the principal debitor ; may be pursued without pursuing the principal : & quoad the creditor they are principals ; but these who are cautioners for performing of deeds ; as cautioners for executors , and for curators , or factors , or for messengers , cannot be prusued till the principal be discussed , for they being only obliged , that their principals shall compt , or be honest ; therefore they cannot be lyable untill the principals first be cited to compt in the one case ; or to answer for their delinquencies in the other ; and they are onely lyable to make up what is wanting from their principals after they are discust . because cautioners for sums are lyable as principals ; therefore their obligation may subsist ; though the obligation of the principal partie be found null , or reduced by any priviledge given to the principal by law ; as if a man become caution for a minor ; or for a woman who is married , nam sibi imputet , who became a cautioner for such ; but if the obligation was absolutely null in it self ; as if the principal did not sign , then this obligation because it is but accessory , retains so much of its own nature as to free the cautioner . cautioners , are to get relief from their principals , not onely of the principal sums , and annualrents ; but of all dammage , and interest ; and whether the same be provided by the bond or not ; and where there are many co-cautioners ; they are lyable in solidum , quoad the creditor ; but if any of them pay the whole sum to the creditor ; though he get assignation from him to the whole ; yet he must onely seek his relief from the other cautioners , with deduction of his own part ; which proceeds ; albeit there be no clause of mutual relief in the bond ; and they must communicate to their co-cautioners , what ease they get by way of transaction from the creditor ; but if they get the said ease by a meer ratification , as by donation , &c. then they are not bound to communicate what ease they get ; for a creditor may justly gratifie one of his cautioners as his friend , or relation , without being obliged to gratifie the rest . to make obligations effectual , it is necessar that the subject matter thereof be such as will admit of an obligation ; for , no man c●● oblige himself , to do what is either impossible , unlawful , or dishonest ; nor to transmit the property of things sacred ; ( these not being in comercio , ) and albeit when the performance of obligations becomes imprestable , the party is lyable for the value , as dammage and interest ; yet in these the value is not due , nor will he be lyable in a penalty , in case of not performance . but yet a man may oblige himself , to do something not in his own power , as to cause another dispone lands ; and if he fail , he will be lyable pro damno & inter esse ; or for the penalty . amongst obligations , donation is also reckoned , which is an obligation proceeding from a lucrative cause or title ; for he who voluntarly , and gratuitously promises to give any thing , is thereby obliged to deliver the same ; and this voluntar giving , is called , a donation , which is in law defined to be a meer liberality proceeding from no previous eompulsion . it may be perfected either by write , or without it ; but if without write , it must be proven by oath . donations , are either simple , remuneratory , or mortis causae , that is to say , donations made in contemplation of death . a remuneratory donation , called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is when a man bestowes any thing not gratuitously , but to requite and repay some good deed done , or to be done to him ; and so is not purely a donation . a donation in contemplation of death , is , when the giver designs rather the person to whom he gifts to have what is gifted , than any other ; but wishes himself to have it , rather than him to whom he gifts it : and therefore , though pure donations are not revocable , yet a donatio mortio causa is ; being of the nature of a legacy ; and no donation is presumed to be donatio mortis causa , except it appear to be so , either expresly , or by strong presumptions , that the thing gifted , was onely gifted in contemplation of death . gifts , being a meer liberality , are not presumed ; and therefore by our law , debitor non praesumitur donare quam diu est debitor : but this being onely a praesumptio iuris , may be taken off by stronger arguments , justly inferring , that donation rather than payment was designed . title iv. of the dissolution , or extinction of obligations . having cleared how obligations are constitute ; it remains now to consider how they are taken off , and extinguished ; which is either by a contrary consent , or by implement and satisfaction . since consent is necessary to the constitution of obligations , so a contrary eonsent , whether by a discharge , or pactum de non petendo ; does dissolve and extinguish obligations ; nam nihil est tam naturale , quam eo genere quidque dissolvere quo colligatum est ; and therefore , if the obligation be constitute by write , it requireth write to the dissolution thereof , which is called a discharge ; and discharges require the same solemnities that obligations do ; but yet , if the obligation was satisfied , via facti , as by intromission with rents of lands , &c. it is probable by witnesses , as all facts are . discharges , are either general of all that parties can ask , or claim ; or particular , of one particular thing or subject : and in general discharges , if any particular thing be expresly discharged therein , the general clause will be extended to particulars of no greater importance , than what is expresly discharged . discharges do ordinarly bear a clause , discharging all preceedings till their date ; and albeit they do not , yet three consecutive discharges , do presume , that all bygones are satisfied , if they be immediately subsequent to one another , and granted by parties , having power to discharge as discharges by heritors , or chamberlains , to their tenants ; and therefore discharges of . subsequent years granted by merchants , who bought the ferm of these years , will not inferr the presumption ; but it will be inferred by discharges for a part of the three years granted by the father , and the rest by his eldest son , as heir ; the discharges being in write , containing a discharge of the whole years rent ; so that partial receipts , albeit they extend to more than the years rent , will not presume , that all preceedings are payed ; neither one discharge for three subsequent terms , or years , the presumption being inferred from renewing of the discharges each year , without reservation . obligations , are extinguished , and dissolved by payment , which is , the performing of the obligation in the precise terms thereof , and is so favourable , that if it be made bona fide , it dissolveth the obligation ; albeit he to whom it was made , had no right ; so payment made to a procurator after the procuratorie was revocked without the payers knowledge , will be sustained ; and payment made to ministers serving the cure , though they have no title to the benefice , will liberat the payers . obligations are likewise fulfilled by acceptilations , which is an imaginary satisfaction , as if it were truely performed , and has the effects and all the priviledges of payment . secundo , by compensation , whereby if the creditor of a liquid sum , become debitor to his debitor , in another liquid sum , the two obligations extinguish each other ipso jure ; and is equivalent to payment in all cases , but if the sums be not liquid , or if a species or body be craved to compense a liquid sum it will not be allowed . tertio , obligations are taken away by innovation , which is , the changing one obligation for another , and if the person of the debitor be changed , it is called delegation . innovation is never presumed except it be expresly mentioned , or that the obligation bears expresly to be in satisfaction of the former . quarto , obligations are extinguished by confusion ; that is to say , when the debt and credit meet in the same person ; as when the debitor succeeds to the creditor , or the creditor to the debitor ; or a stranger to both ; and the reason of the extinction in these cases , is , because the same person cannot be both debitor and creditor . title v. of assignations . all rights , whether heritable or moveable , are transmissiable by assignation ; but if a seasin once be taken , the right is not transmissable by an assignation , but by a disposition ; except liferents , which are transmissable by assignation even after seasin ; because they can admit of no subaltern infef●ments . he who grants the assignations is called the cedent , and he who receives it , is called the assignay . assignation to a right is compleated by intimation ; and therefore in competition betwixt diverse assignays , the first intimation is alwayes preferred ; this intimation is made by a procurator , who takes instruments in the hands of a notar , that such an assignation was intimat , ( so that one man cannot be both notar and procurator ; ) and if after this the debitor pay the cedent , he must repay it to the assignay ; because the cedent was denuded by the assignation ; and for the same reason , the cedents oath will not prove against the assignay if the assignation be for an onerous cause . but if the assignation be gratuitous ; or for the cedents behoof ; or if the matter be litigious , and after a depending process ; in any of these cases the cedents oath , will prove against the assignay . a pursute or charge of horning upon the action assigned , has likewayes the force and effect of an intimation ; but an inhibition against the cedent upon the assignation , will not supply intimation . the debitors private knowledge of the assignation , is not equivalent to an intimation ; but his paying a part of the sum ? or annualrent for it , is equivalent to an intimation ; and much more the writting a letter promissing to pay ; since that is in effect a renewing the obligation . bills of exchange , and orders by merchants to pay , need not be intimated ; because in commerce we are governed by the law of nations ; nor need assignations to reversions be intimated ; because the registration is a publication of them , nor legal● & judicial assignations , such as apprisings , adjudications , and marriage ; and that because they are past , and expede publictly . a blank band is equivalent to an assignation ; and so must be intimated ; and in competition with other rights , it is only preferred according to the date of its intimation , that the receivers name was filled up in it . it is a general principle in our law , that in the competition of moe creditors , the first compleat diligence is still preferred ; and therefore , an assignation is preferred to an arrestment , if it be intimate before the arrestment ; but if the imtimation and arrestment be in one day , they come in pari passu ; except the arrester be in mora , and do no diligence upon his arrestment . title v. of arrestments and poyndings . the ordinary diligences , in our law , affecting moveable rights , are arrestment , which answers to inhibition in heritage , and poynding which answers to comprising in heritage . arrestment is the cammand of a iudge , discharging any person in whose hands the debitors moveables are to , pay or deliver up the same , till the creditor who has procured the arrestment to be laid on , he satisfied . arrestments may be laid on , by any iudge in whose territories the goods are ; or by the lords of the session wherever they lye , and that by special letters of arrestment ; or by a warrand exprest in the ordinarie letters of horning : these letters are execute by a messenger , and if after it is laid on the partie in whose hands it is made , pay ; he may be forced to pay the same over again , or may be pursued criminally for breaking arrestment , the punishment being consiscation of moveables and their persons to be in the kings will * . arrestment can only affect moveable sums , and the ground thereof must be for payment of moveable debts , or sums due on heritable security , if no infeftment has followed * , and it reaches only to the sums already due , or for which the year or term is current . how soon on action is raised against a person , his goods may thereupon be arrested ; and this is called an arrestment upon a dependence ; but this arrestment may be loosed by letters for loosing of arrestment , which passes upon a common bill , and a band of cautionry is given to the clerk of the bills * , wherein the granter of the band obliges himself to pay the sum , if the arrestment be found lawful , and the sums or goods decerned , to belong to the arrester ; but arrestments upon a decreet or ( which is equivalent ) on a registrat band , cannot be loosed at all ; except the decreet be turned unto a libel , that is to say , the lords do only sustain the decreet as a libell or summonds against the defender , or that the arrestment was laid on after the decreet was suspended ; for in either of theses cases arrestments may be loosed even upon decreets . arrestment being but a personal prohibition against the defender to pay , it lasts no longer than the lifetime of him in whose hands the arrestment is made ; except it be renewed against his successors ; but it dyes not with him in whose favours it was raised , nor with him for whose debt it was laid on ; and if the debt be not liquid , the debitors representative must be called to the liquidation . in the competition amongst moe arresters , preference is granted according to the priority even of hou●s ; and the first arrestment is not preferred if the posteriour arrester get the first decreet , to make the arrested goods forthcoming ; for arrestment ; being only an inchoat diligence , it is compleated by the sentence to make forth-coming ; and yet if the arrester did exact dligence to obtain a decreet ; his raising the first pursute , will prefer him . he also who arrests on a decreet , will be preferred to him who arrests on a dependence ; and he who arrests after the term of payment will be preferred to him who arrests before the term . the kings pensions and gratuities aliments cannot be arrested ; because they are given for a particular and favourable use ; and not applicable to the arrester . poynding may be likewise used against moveables , by vertue of letters of horning against the debitors ; containing poinding or any other inferiour iudge , his decreet or precept * which is done by a messenger after the dayes of the charge are expired * , the form thereof is ; the messenger after poynding the goods , apprises them upon the ground where he apprehends them ; and offers them to the debitor , for the sum for which they were apprised , and if he compear not , he carries them to the mercat cross of the head burgh of the shire , or other iurisdiction where they are poinded , and there he apprises them , and delivers them to the party , who is called the poynder : but if any compear , and offer to make faith that the goods belong to them , and not to the debitor ; then the messenger must deliver them to that party , else he is lyable in a spulzie . poynding , is a judicial sentence , and the messenger is iudge constitute by the letters ; the messenger writes likewise an execution of poynding and that execution is better believed than any who offers to prove the contrare ; for that execution is onely quarrelable by improbation . arrestment , being but an inchoat diligence , discharging the partie in whose hand the arrestment is made , to pay , the right to the goods arrested , remain still in the debitor , and may be poynded for his debt ; for poynding is a compleat diligence ▪ giving an absolute right to the goods poynded . labouring oxen , or other plough goods cannot be poynded in time of labouring ( least labouring should be otherwayes discouraged ; ) except there be no other moveables upon the ground to be poinded * . title vi. of prescriptions prescription being a way of evacuating and annulling both heritable , and moveable rights comes in here , after both these are explained . prescription is defined , an acquisition of propertie by the poss●ssors continuing his possession for such time as the law determines ; which was introduced not onely for punishing the negligence of the 〈◊〉 , who owned not his right for so many years ; but likewayes , for securing possessors , and such as derived right from them ; and least by a constant uncertainty , the possessors being unsecure , might neglect the improvement of what they possessed . heritable rights , ( under which i comprehend wadsets , heritable offices , servitudes , patronages , &c. ) and all actions depending upon them , or relating to them , prescrive with us in . years ; if the possessor being a singular successor , have a chartor , disposition , or precept , and seasin in his person ; or being an heir , have a constant tract of seasins , continuing and standing together , for the space of . years , flowing upon retoures , or precepts of clare constat ; for , the law did not trust a seasin alone , it being onely the assertion of a notar. but reversions which are in the body of the poss●ssors right ; or reversions duely registrated , prescrive not . all personal rights , and actions relating to them , prescrive likewayes in . years ; if a document be not taken upon that right , that is to say , if nothing be done , whereby the true proprietor declares his intention to follow and own his right * . in both these prescriptions , the extraordinary length of time , supplies the want of bona fides in the possessor ; but , no length of time can make the possessor prescrive things sacred , religious , or publick ; nor yet things stol●e , or robbed , ob vitium reale , which affects such things . actions of spulzie , and ej●cti on , prescrive in three years , after committing thereof ; as to the specialities of these actions , viz. the violent profits , and oath in litem ; but minors have three years after their majority * . as do also actions for servants fies , house meals , and marchant compts ; except they can be proven after these three years , by the debitors oath * : and removings , if action be not intended within three years after the warning * . if assysers err in serving a man wrongously heir to his predecessor , the retour may be quarrelled within years ; but the assysers themselves can only be pursued for error , within three years * , but the right of blood it self never prescrives ; and therefore a man may be served h●ir to his father or grand-father , after a years , being debarred by no time ; nam jura sanguinis nullo jure ●ivili adimi possunt . if a person who is forefaulted possessed lands years before the forefaultur , without interruption , the king is obliged to show no right , in the person of him who was forefaulted to the lands , or others that he possessed ; because it s presumed that the person forefaulted would abstract the writs , which quinquenrial possession is to be tryed by an inquest of the shire , where the land lyes * . arrestments on decreets and depending actions prescrive within five years after sentence . meals and duties due by tennents prescrive , if not persued within five years , after the tennents removing ; ministers stipends , and multurs pres●rive so that they cannot be pursued after five years , except they be proven by the debitors oath . holograph bands ; and subscriptions in compt books , prescrive in twenty years ; except they be proven by the debitors oath . and lastly , all bargans probable by witnesses , all actions on warnings , spulzies , ejections , arrestments , ministers stipends , &c. prescrive within ten years ; unless wakned every five years ; but this alters not any shorter prescriptions of these actions * . all these prescriptions run de momento in momentum ; so that the prescription runs till the last moment of the time allowed ; but they run only from the time wherein the debt could have been pursued , since till then the proprietar could not be called negligent , which negligence is the foundation of prescriptions ; and therefore prescription runs not against a band from the date of a band ; but only from the term of paymennt ; and prescription of an action of warrandice , runs only from the eviction * ; because no man is lyable in warrandice , till the lands be evicted ; and from the same principle it is , that contra valentem agere non currit , prescriptio ; and that prescription runs not against minors , in whom negligence is not punishable , since it proceeds from no design ; but from the unripness of their age. vassals cannot prescrive against their superiours ; because the vassals right acknowledges the superiours ; nor can laicks prescrive a right to ●●ynds being incapable of such rights after the lateran council ; but though the right it self prescrives , in neither of these cases , yet the bygons due by vertue of these rights before fourty years , may prescrive . prescription runs against the kirk , and mortifications ; but on the other hand , because church men are negligent , and rights may be lost in the change of intrants ; therefore , . years possession , is sufficient to maintain a church man in possession ; which is called , decennalis & ●riennalis possessio ; and is a presumptive title , and sufficient till a better be showen , by which it may be excluded ; for praesumptio caedit veritati . prescriptions run likewayes against the king ; except as to his majesties annext propertie ; or to his unannext propertie whereof the ferms , duties or feu ferms , have been compted for in exchequer , since august . years . any deed , whereby the true proprietar owns his right , during the course of the prescription , is called interruption ; and prescription is interrupted in our law , either by a process , or a charge raised within the years of the prescription ; though the citation was only on the first summonds ; and though the summonds was past from , pro loco & tempore ; but interruption by citation , is not sufficient unless it be made by messengers personaly or at the parties dwelling house , and that it be renewed every seven years * ; and that the execution be signed by the messenger and witnesses * . interruptions made against the principal party , interrupt as to caution●rs ; and interruption as to a part interrupts the prescription of the whole ; so that if a man arrest the meals and duties of any part of a barrony , he interrupts prescription , as to the whole barrony . title vii . of succession in heritable rights . having formerly shewed how rights whether heritable , or moveable , real , or personal , are constitute , and how they are transmitted to singular successours : it remains now to consider how these rights are transmitted by succession , beginning first with succession in heritage . an heir , is he that succeeds universally to all that belonged to the defunct ; and is therefore in the construction of law , one and the same person with the defunct . though the executor , be in effect the heir in moveable rights ; yet we call those only properly heirs , who succeed in heritage ; and with us there are several kinds of heirs distinguished by their several denominations . the first , and chief kind of heirs , are the heirs of lyne , who are so called , because they succeed lineally , according to the right of blood ; and they succeed thus , first , descendants , according to the proximity of their degree , in which the eldest son is preferred to all his brothers , and all the brothers to the sisters ; and if there be onely sisters , they succeed all equally . the next degree , is grand children , and their great grand children , &c. who succeed all in the same way . if there be no descendants , then collaterals succeed , in which , the first degree is brothers , and sisters german , for the whole blood excludes the half blood ; and brothers the sisters ; and brothers by the fathers side exclude brothers by the mothers side ; there being no succession with us by the mothers side . failing descendants , and brothers and sisters , the succession ascends ; and all the ascendants succeed upward , according to their degrees of proximity , as the descendants did downward ; and thus the father succeeds to his own son ; and failing him , the grand father , great-grand father , &c. and failing of ascendants in the right ●ine , the collateral ascendants succeed in the same way , and thus the fathers brother ; or if there be no brothers , the fathers sister secludes the grand fathers brothers , or sisters , &c. it is to be observed that in heritage , there is a right of representation , whereby the descendants exclude still the collaterals ; though nearer by many degrees to the stock , or comunis stipes ; and thus the great grand-child of the eldest son secludes the second brother ; because , he comes in place of , and so represents the elder brother , his great grand-father . the heir of line , has right to the heirship moveables , and excludes all other heirs therein ; heirship moveables are the best of each kind of moveables , which is given to the heir ; because he is excluded from all other moveables ; if there be pairs , or dozens , he gets the best pair or dozen ; but in others he gets onely one single thing ; none have right to heirship moveables , but the heirs of prelates , under which are comprehended all benefice● persons , the heirs of barrons , under which are comprehended all who are infeft in lands or annual rents , though not erected in a barrny ; and the heirs of burg●sses , by which are meaned , actual trading , but not honorarie burgesses . if the defunct had any lands , or heritable rights , to which he could not succeed as heir of line , then he who succeeds in these , is called , the heir of conquest ; and the rule is , that heritage descends and conquest ascends ; so that if the midle of three brothers dyes , his immediate elder brother would be his heir of conquest ; and if a son of a second marriage dyes , leaving three brothers of a former marriage , the youngest would succeed in his conquest lands ; and this i conceive was introduced , for enriching the elder brothers , whom our law still favours ; whereas heritage must descend according to the law of nature . these heirs of conquest , have right to all lands , annualrents , heritable bands , and others ; whereupon infeftment did or might follow , but they have no right to tacks , pensions , moveable heir-ship ; and all other rights , having tractum futuri temporis , and requiring no infeftment , and so not competent to executors ; all which belong to the heir of line . the heir male , is the nearest male who can succeed ; and all heirs of line , are also called general heirs ; because they succeed by a general service and represent the defunct universally . the heir of tailzie is he to whom an estate is tailzed , so called , because the legal succession is cut off in his favours from the french word , tailer , to cut , and the matter of tailzies may be summond up in these few conclusions . primo , in tailzies , the person first named , needs not be served heir ; as for instance , if i take my land to my self , which failing to seius ; seius needs not be served ; because there is no cognition requisite to clear that he is to succeed ; but if i take may lands to my self , and my heirs ; or to me , and the heirs of such a marriage ; which failing to caius ; then either caius in the one case ; or the heirs of such a marriage in the other , must be served ; because , it is requisite to inquire , whether there were heirs , or who is heir of that marriage ? secundo , in all tailzies , he on whom the last termination falls is fiar ; as for instance , if i take my lands to seius , and failing him to caius , and his heirs ; caius is fiar , and seius is onely liferenter . tertio , though the last termination fall on the wifes heirs , the husband remains fiar ; because of the prerogative of the sex ; as for instance , if i take my land to my self , and my wife , which failing to her heirs , my heirs would be preferred ; except the estate belonged to my wife as fiar ; for then her heirs would be preferred . quarto , though in conjunct-fie rights , if i take my lands to my self , and my wife in conjunct-fie , which failing to our heirs , my heirs would be preferred , as to heritable rights ; but in substitutions to moveables , the right would divide betwixt her heirs and mine . quinto , the heir of tailzie , has but a hope of succession , and so the fiar may dispone ; nor can the substitutes , or remoter members of the tailzie , hinder him by action , inhibition , or otherwayes ; except there be a clause irritant , and resolutive , declaring , that if the first member dispone , his disposition shall be null ; in which case , though generally the remoter member must be served heir , to the immediate prior who was infeft ; yet in that case , the remoter member may be served heir to the first disponer . sexto , if one oblige himself to make such a man his heir of tailzie , that obligation tyes him onely once to tailzie his estate ; but not that he shall not break that tailzie ; except the obligation be for an equivalent onerous cause : or if a person oblige himself to do nothing contrare to his tailzie , he cannot thereafter make any voluntar gratuitous right to the prejudice of that tailzie ; but yet the lands tailzied may be comprised , or adjudged for sums truely due , and not dolose contracted , to disappoint the tailzie . heirs of provision , are these who succeed by vertue of a particular provision in the infeftment ; such as are heirs of a second marriage , and as to these heirs of marriages , we may observe two things ; first , that if a father by his contract of marriage , be obliged to employ a sum to himself , and wife in conjunct-●ie ; and the heirs of the marriage , he cannot in prejudice thereof do any fraudulent gratuitous deed ; tho he may provide a ioynter for a second wife ; or provisions for his children of a second marriage . secundo , though a father may assign or dispone sums to children , when extant , whereby they will be preferred to posterior creditors becoming fiars by the said rights ; yet if the father dispone to children to be procreat , this will be considered only as a destination and so will not hinder the father to make posterior rights ; or even posterior creditors to affect by diligen●es what is so disponed . tertio , process will be sustained at the instance even of the appearand heir of the marriage , against the father , to fulfill the special obligations therein , or to purge any deeds already done by him in prejudice thereof . albeit , where heirs are not designed in any right , the heirs of line , exclude all other heirs ; yet if a man take lands to himself , and his heirs male tailzie , or provision ; and thereafter acquire reversions , or tacks of the same lands to himself and his heirs ; these rights will accress to that special heir , to whom the land was provided ; for it is not presumable , that a man would give the lands to one , and the rights of them to another heir . when women succeed , all these of one degree succeed equally , and because the estate is divided amongst them , they are called heirs portioners ; the eldest not secluding the rest , and having no advantage over him ; but where the rights are indivisible , such as titles , iurisdictions , superiorities , and all the casualities of these superiorities : such as ward ▪ marriage , nonentrie , feu duties , &c. these fall to the eldest heir female , without division ; together with the principle messuage , it being a tower , or fortalice ; for other houses are divided equally . all these heirs are lyable in solidum , if they once enter heir ; except heirs portioners , who are onely lyable pro rata , and heirs substitute in a sum , who are onely lyable to creditors , in the value of the sum , to which they are substitute ; but they have in scotland a priviledge which they call , the benefit of discussion , whereby the heirs of line must be first pursued , to fulfill the defuncts de●ds , or pay his debts ; and next to these the heir of conquest , the heirs male , the heir of tailzie , and heirs of provision ; but for fulfilling a deed relating to particular lands , the heir who succeeds in these particular lands , must be first pursued , without discussing ; and that which is meant by discussing , is that the creditor must proceed by horning , caption and apprising , against the heir , who is to be discussed ; before he can reach the other heirs . an heir is said with us , to be heir active , who is served heir , and may pursue , whereas he whom the law makes lyable to be heir , is said to be heir passive ; as when the appearand heir is infeft upon a precept of clare constat by the superiour , or otherwise medles with his fathers estate . when the predecessor dyes , he who should be heir , ( and therefore is called , appearand heir , ) has year and day allowed him to deliberate whether he will be heir , which is called , annus deliberandi * ; and which is indulged by the law ; because if a man enter once heir , he is lyable to all the debts though far exceeding the estate ; and within that year , he cannot be pursued , nor obliged to enter ; but after the year is expyred , the creditor may charge him to enter heir , and if he resolve not to enter , he must renounce any right he has by a writ under his hand . this year is compted from the defuncts death ; except in a posthum child , who has a year allowed him , after his birth , and not only during this year ; but after it expires , the appearand heir without instructing any title , may pursue for exhibition of all rights made to his predecessors ; and of all rights made by his predecssors , to any in his own family ; but not to sirangers ; to the end he may deliberate , whither he will enter heir ; and the liferenter is bound to aliment the appearand heir , not being able to entertain himself , though he renounce . vid. supra part . title . § liferents . if the appearand heir resolves to enter heir to his predecessor , he must raise briefs from the chancellarie ; which brief is a command from the king. to the iudge ordinary , where the lands ly , to cause cite sworn men , to try whether the raiser of the brief be nearest heir ; and this is executed or proclaimed at the mercat cross where the lands lye ; and if at the day appointed , these . sworn men find him to be the next person who should succeed , they serve him heir by a paper which is called a service , and which being returned be them to the chancellarie ; there is a write given to the heir , whereby he is declared heir ; and which is called , the retour , because it is their answer , and return to the chancellarie of the points contained in the brief ; and thereafter , the person who is served heir is infeft by a precepts out of the chancellarie ; and if the service was to any particular lands , it is called a special service ; but if there was no land designed , it is only called , a general service ; and this general service is sufficient to establish a right to heritable bands , dispositions , reversions , iurisdictions , and all other rights , whereupon the defunct was not infeft , nor needed to be infeft ; and a special service includes a general service but not e contra . the general brief hath only two points or heads , viz. if the defunct dyed at the kings peace ; and if the raiser of the brief be the next heir ; but the special brief , has seven , viz. when the defunct dyed . secundo , if he dyed last vest , and seased , at the kings peace . tertio , that the raiser is next heir . quaerto , of whom the lands are holden in capite . quinto , by what manner of holding . sexto , what is their old and new extent . septimo , whether the raiser be of lawful age ; and in whose hands the lands are at present . sometimes likewise , the vassal without serving himself heir , gets a precept of seasin from the superiour ; wherein , because the superiour declares , that it is known to him , that such a man is heir to his father ; it is therefore called , a precept of clare constat ; which therefore makes the obtainer lyable passive , to all his predecessors debts ; but gives him only active right , to the particular lands contained in the precept ; nor will it give him a right even as to these lands , except against those who derive right from the superiour who gave it . bailiffs also of burghs royal , do infeft their burgesses as heirs in burgage lands , giving them seasin : as heirs , by delivering them for a symbole , the hesp and staple of the doors ; and the seasin in that case , is in place of a service ; as to these lands ; but is not in other cases a sufficient active title . the heir who is retoured , holds either his lands of the king , and then he gets precepts out of the chancellary , to the iudge ordinary , to infeft him ; which if he refuse , the lords upon a supplication , will direct precepts to any other person , who is thereby made a sherriff in that part ; but if the lands hold of another superiour , then either that superiour is himself entered or not ; if he be entered , he will be charged by four consequutive precepts , to enter the heir ; and if at last he disobey , his immediate superiour will be charged , and so till the heir arrive at the king who never refuses to enter any ; and if the superiour be not entered , he must be charged upon . days to enter , that being himself entered , he may enter his vassal ; and if he refuse , or delay he losses all the nonentries of his vassal ; but no other casualities ; because quoad these he was not culpable . though the person who should be heir , do not enter to his predecessors heritage ; yet he may be made lyable to his predecessors debt , by two passive titles , relating to heritable rights ; viz. gestionem pro haerede , and as successor titulo lucrativo post contractum debitum , and there is a third passive title relating to moveables , which is called ▪ vitious intromission . behaving as heir , or gestio pro haerede , is when the person , who might have been heir , immixes himself , and intromets with either the moveable heirship , or any heritable estate , belonging to the defunct ; in which case , he is lyable to the creditors , not only according to the value of what he intrometted with ; but as far , and in the same manner as if he had been entered heir ; and yet the lords will not fasten this passive title upon a man ; because of its extraordinary hazard ; where the intromission is very small ; or where he has a colourable title to which he might ascrive his intromission , as a factorie from the compryser ; or the donator to the escheat , or recognition ; gestio pro haerede , being magis animi quam facti ; which factories will defend ; though there was no declarator ; but if the appearand heir had no factorie ; it is not sufficient to alleadge the defunct dyed rebell , and so could have no heir ; except his escheate was declared before intenting the pursuers action ; nor will this passive title , nor vitious intromission be sustained ; except they be pursued in the intrometters own lifetime , they being kinds of delicts . but he will not be lyable , if the defuncts right was reduced , though after his intromission ; and since this passive title was introduced by the lords of session , in favours of the creditors , to deter appearand heirs from fraudulent intromission ; therefore an appearand heirs , paying his predecessors debt will not infer this passive title ▪ since that is for the advantage of creditors ; nor will the getting of money for ratifying a comprising that is expired , infer this passive title , since the creditors would have got no advantage by that right ; but if the appearand heir had consented before the comprising was expired , it would be a passive title ; because as heir , he might have redeemed the comprising . successor titulor lucrativo , is , where the appearand heir , to preclude the necessity of entring heir ; and so being lyable to the creditors , gets a disposition from him to whom he would have been heir , without any onerous cause ; the receiving whereof , though it be a small part of the estate , makes him lyable to the payment of all the creditors debt ; if the right made , as well as the infeftment , was posterior to the creditors lawfull debt . but if there be an onerous cause ; then either it is not near equivalent to the value of the lands disponed ; and in that case , it will not defend against this passive title ; or , if it be near to the value , it will defend against it , but not against restitution of that value . and since this passive title , overtakes such as might have been heirs ; therefore , a disposition granted to a grand child , will make him successor titulo lucrativo , though the father be alive ; since by the course of succession , he might in time have been heir , though he was not immediate heir ; but since this can onely reach appearand heirs ; therefore , a disposition made by one brother to another , though the maker had no children , will not make him successor titulo lucrativo , since the brother might have had heirs himself ; and so his brother was not his appearand heir . the passive title holds onely in heritage ; and therefore , the getting a right to moveable heirship , and tacks , will not infer the same . gestio pro haerede , and successor titulo lucrativo , being passive titles , whereby in odium of the irregularity of the intromission , they are made lyable as heirs ; therefore , these passive titles , can extend no further , than if they intromet with , or take a disposition to these things to which they might have succeeded ; and so not inferred against an heir of tailzie , intromitting with , or getting a deposition of what would have fallen to the heir of line ; nor can they be extended further , than if they had been served heirs ; and thus an heir portioner will be no further lyable in these , than pro rata , if she had entered ; for the coppie should go no further than the original . to conclude , the succession in heritage , it is ●it to know , that by an old statute * and our constant practique , a man cannot dispon his heritage upon death bed , in prejudice of his heirs ; ( that is to say , neither lands , nor heritable bands , nor any band , though moveable , in so far as his heritage may be thereupon apprised or adjudged ; ) so jealous was our law of the importunity of churchmen , and friends , and of the weakness of mankind , under such distempers ; and therefore , if a man has made any right in prejudice of his heir , after contracting sickness , though he was sound enough in his iudgement for the time , and continued sound , for a very long time ; yet this right will be reduced , as done in lecto , or upon death bed ; either at the instance of the appearand heirs , or at the instance of the apprearand heirs creditors ; and it is sufficient to prove sickness , though it be not proved mortal , and that he was sick , without proving that he dyed of that sickness , or was sick the very time of the disposition . if thereafter , the maker of such a right come to kirk or mercat unsupported , the law presumes that the maker was reconvalasced , but since the law has fixt upon kirk and mercat , as open places , where the disponer may be seen by all men , and by unsuspect witnesses ; equivalent acts , as going to make visits , though at a greater distance will not be sustained ; and so the deeds reconvalasce with him ; but though a man cannot grant a new right upon death-bed ; yet he may perfect an old right ; or do a deed to which he might have been otherwayes compelled ; as fo● payment of his debt , or may grant a rational ioynter to his wife ; though he cannot grant provisions to his children in that condition . title viii . of succession in moveables . the same rules are observed , in the succession of moveables , that were formerly specified in the succession of heritage ; except as to these particulars , viz. all of one degree succeed equally ; and so amongst brothers and sisters , the elder seclude not the younger ; nor males the females , as in heritage ; and in moveables , there is no right of representation as in heritage ; and therefore if there be a brother and two sisters alive ; and a third sisters children , the brothers and sisters , who are living will succeed equally , excluding the children of the sister who is dead . the executor , is also onely lyable , according to the value of the defuncts estate ; because , he gives up an inventary of his goods ; but an heir is lyable for all the defuncts debts . a testament , or latter will , does require to be in write , for nuncupative testaments , which were so called , in the civil law ; ( because , the defunct named his heirs without write ) are not allowed by our law , by which a testament must either be holograph , all written with the defuncts own hand ; or at least , subscrived by him before two witnesses , if he can write ; or if he cannot write , by a notar , or minister and two witnesses . no heritable right can be left in testaments , though the testator was in leidge poustie , and perfect health ; and though the testaments be made in other nations , where heritage may be disponed by testament ; vet it will not transmit a right to heritage lying in scotland ; and yet a testament made according to the solemnities of these nations , will be valid in scotland ; for though they may regulate us as to solemnities ; yet they cannot alter the nature , and so not the transmission of our rights . a legacy , is a donation left by the defunct in any write to be payed by his executor ; but if the legator die before the testator ; or before the condition is fulfilled , on which the legacy was left , then the legacy evanisheth ; and though neither other mens moveables , nor a mans own heritable rights , can be left in legacy ; yet such legacies are valid , if the testator knew that the sum left was heritable , or belonged to others ; and the executor in those cases must pay the value . a minor being above . years , may make a testament , without the consent of his curators ; but under . years he can make none . a wife may make a testament without the consent of her husband . and a person interdicted without the consent of the interdictors ; but idiots , nor furious persons ; can make none ; except in their lucid intervals ; nor bastards , except they be legittimated , or have children of their own . if a man be married , the wife has without paction , a share in his moveables , of which he cannot defraud her by his testament ; and this is called , jus relictae ; and if there be children , the law has provided a portion of the moveables , for them ; which is therefore called their legittim ; and of which their father cannot prejudge them by his testament ; but there is no legittim due by the mothers death ; nor have children who are foris famili●● ; that is to say , who are married , and have renounced their portion natural ; any legittim due to them . this legittim is also due only to the immediat children , but not to grand children . the remander of the defuncts moveables , beside what is due to the relict , and children , is called the deads part ; and upon that onely he can dispone . if a man have no wife , nor bairns , all is the deads part and may be disponed by him ; if there be either wife , or bairns , and not both ; then the defuncts testament receives a bipartite division ; but if there be both wife and bairns , then it receives a tri●artite division . by the civil law , a testament was null , if the heir was not named ; but with us a testament is valid , though the executor be not named , who is the heir in mobilibus , and is called executor ; because he executes and performs the defuncts will , and for executing thereof the law allows him the third of the deads part , if he be a stranger ; but if the nearest of kin confirm , he has right to the whole deads part ; except the whole be exhausted by legacies , and the superplus over what is left in legacy , and the third due to the executor for his office , belongs also to the children , and they may call the executor also to an account for it * ; but the heir has no share in the moveables ; except he collate , that is to say , ( be content that the rest of the children share equally with him , in all that he can succeed to as heir ; ) or in case there be but one child ; for then that child is both heir and executor without collation . an executor nominate , is he who is named by the defunct in his testament ; and is therefore likewise called an executor testamentar ; but if there be none named by the defunct , then the commissar will make an executor dative ; and ordinarly they prefer the nearest of kin ; but if the nearest of kin being charged , will not confirme , then they name their own procurator fiscal executor ; and if thereafter , the nearest of kin compear , they use to surrogat him , and this is called , an executor surrogat ; but no executor dative has a third of the defuncts third , as others have . a creditor may confirm himself executor creditor ; and so may pursue the defuncts debitors , and least that creditors should wrong one another by nimious diligence , our law has appointed , that all who shall confirm themselves executors creditors , or shal do diligence against executors , or intromitters * within . moneths one of another shall come in pari passie . executors creditors are onely obliged to confirm as much as may pay themselves ; and are for the same reason , only liable to do diligence for what they did confirm . because moveables may be easily concealed from creditors or dissipated , therefore the law appoints , that the executor shall upon oath give up inventar , and find caution to make these moveables forthcoming ; and then the commissar confirms him ; nor can he pursue , or dispone as executor , till he be confirmed : he is onely lyable for the defuncts debt , in as far as the goods confirmed will extend . executory being a meer office , it accresses to the survivers ; if there be moe executors , and in so far as the executors have not execute the testament in their own lifetime ; that is to say , have not obtained decreets for the goods belonging to the defunct ; there will be place for a new executor , for executing these ; and they are called , executors quoad non executa ; or if the executor ommit to give up any thing in the inventar ; or do not give up the saids moveables at the full rates ; there will be another executor dative made by the commissar , who is called , an executor dative ad ommissa , vel male appretiata . the executor onely has power of administration ; and the creditors and legators can onely pursue him ; except where there is a special legacy left of such a particular thing , or a sum owing to such a particular person ; for then the special legator has the dominium transmitted to him , and so he may himself pursue for his special legacy ; but the executor must be still called in the pursute , to the end it may be known , whether the debts exhaust the special legacies ; for , no legacy can be payed , till the debts be payed ; and therefore , if all the legacies cannot be payed , the legators suffers a proportional defalcation for payment thereof ; but if there be as much free goods , as will pay the special legacy , it will be preferred , without defalcation . an executor cannot dispone , till he obtain a sentence , but even the sentence states him not in the absolute right of the moveables ; otherwayes than that he may discharge and assign to the respective persons having interest ; for , if he were denounced rebel , the executory ▪ goods , even after sentence , would not fall under his escheate , nor would his executors , or his creditors have right thereto , in prejudice of the nearest of kin of the defunct , to whom he was executor . if there be moe executors , whom we call co-executors ; one cannot pursue without the rest , for all of them represent the defunct only as one person ; but if any of the rest will not concurr , they may be excluded from their office , by a process before the commissars ; nor can an executor for the same reason discharge a debt wholly , since the rest have an equal share in each debt : but if the other executors have got as much as their share will extend to , the discharge even from one of the executors will be sufficient ; nor are ( for the same reason ) co-executors lyable for the whole debt , and so cannot be singlely pursued , unless they have intromitted with as much ; as may pay the debt pursued for . an executor is lyable to do diligence for recovering the debts due to the defunct ; and the diligence required upon his part , is a sentence , and registrated horning against the defuncts debitors ; but if there be an universal , or special legatar , whereby an executor confirmed has no advantage ; then the executor is not lyable in diligence ; but only to assign the creditors that they themselves may pursue . the executor likewise cannot pay any debt without sentence , least otherwayes he might prefer one creditor to another ; but yet the executor may pay those debts , that are acknowledged in testament without process , providing the same be payed before the creditors intent a persute ; or these which we call priviledged debts ; because they are preferred to all others , viz. servants fies , medicaments on death-bed , house-meal , and funeral-expenses . after the executors have executed the whole testament , they may get a decreet of exoneration before the commissars , against the creditors , and all having interest ; wherein they may prove that all they got is exhausted by lawful sentences ; but it is not necessar to have such a decreet when they are pursued before the lords , for it is sufficient when they are pursued there to alledge , that they are exhausted by way of exception . if any person intromit with the defuncts moveables , without being confirmed , they are lyable to the defuncts whole debts ; whether they were related to himor no ; and though their intromission was very small ; and this was introduced to prevent the fraudulent , and clandestine abstracting of the defuncts moveables , without inventary in prejudice of creditors ; and therefore this passive title is only introduced , in favours of creditors ; but of none others , such as legatars bairns , &c. but if the intromitter confirme , before any action be intented , this purges the vitious intromission ; and the intromitter is only lyable for the value of the thing intromitted with ; or if there be an executor confirmed , no person can be pursued as vitious intromitter ; for the intromitter then is only lyable to the executor ; but the relict , or the defuncts children , confirming within year and day after the defuncts death , does thereby purge the vitiosity ; though they confirm not till after citation ; nor will necessar intromission infer vitiositie , and that is called , necessar intromission , when either the husband or the wife , continue their possession of one anothers goods , after one anothers decease , for preservation ; and that because there is no other person to look after them ; and this is for the advantage of the creditors ; since it hinders the goods from perishing . if there be moe vitious intromitters , they are each lyable in solidum , if they be pursued in several actions ; and pro virili , if they be pursued together , but none of them get relief , for wrong in our law has no warrant . the heir is obliged to relieve the executor , of all heritable debts ; and the executor is bound to relieve the heir , of all moveable debts , as far as the inventar will reach . title ix . of last heirs , and bastards . whilst there is any alive , who can prove even the remotest contingencie of blood to the defunct , they succeed to him ; but if there be none , the king succeeds as last heir ; for quod nullius est , est domini regis ; and so the king succeeds to the defunct , as last heir ; both in heritage and moveables ; and is preferred to all superiours , and others whatsoever ; for which end he makes a donatar , who must obtain a declarator before the lords of session , against all who are supposed to have any relation , whereupon a decreet being obtianed before the lords , declaring that the king has right as last heir , , the defunct having dyed , without any relation . this decreet is equivalent to a service ; but if lands be taken by a man to himself , and his heirs male simply ; the king will succeed as last heir ; if there be no heirs male ; though there be heirs female ; since the land was not provided to them ; and therefore men ordinarly in their tailzies adject the clause whilks failzing to their heirs whatsomeever . because the king succeeds here as heir ; therefore he is lyable to pay the defuncts debts ; but he is only lyable as farr as the estate will extend ; and therefore the creditors may adjudge the real estate , and serve themselves executors creditors in the moveables . a bastard by our law has neither heirs nor executors ; but yet he may dispone upon either his heritage or moveables inter vivos ; though he cannot make a testament ; except he be legittimated by a letter under the great seal , ( which extends not to heritage ) or have children surviving him ; for the bastards children will allwayes seclude the king. the king in the case of bastardy , makes a donatar , who pursues declarator ; and is lyable to the debt ; for in effect the king succeeds here , quasi ultimus haeres , and creditors use the same execution in this case , as in the other ; and in both ultimus haeres ; and bastardy , the relict has still her share of the moveables , as in other cases . children procreate betwixt persons divorced ; and these with whom they have committed adultery can not succeed to them * . the institutions of the laws of scotland . part fourth . title i. of actions . having finished these two first parts of the law , which treat of persons and rights ; we come now to treat of the third part , viz. actions , whereby these persons , pursue those rights . an action is defined to be a right of prosecuting in iudgement what is due to us ; and it suffers very many divisions ; the first whereof is , that some are real , and some personal ; a personal action , is , that whereby we only can pursue the person that is obliged to us ; as where i pursue a man for payment of a sum due by his bond. a real action is , that whereby a man pursues his right against all singular successors , as well as the person who was first obliged ; as for instance , if one have an infeftment of annualrent , he can not onely pursue the granter for payment of the money , by a personal action , but he can by a real action , called , an action for poinding of the ground , pursue all singular successors , and poind the tennents , and intromitters with the rent , for recovering of his annualrent out of the land , that stood affected with his infeftment of annualrent . actions are also divided i● ordinary actions , and actions rescissory ; for with us all actions , are called , ordinary actions ; except improbations , whereby we pursue papers to be declared false and forged ; or reductions , whereby we pu●sue rights to be declared null , and to be reduced . in improbations , there are two terms given to produce the write ; because the danger is great ; and if the writer and witnesses of , and in that write be alive , their testimonies are onely allowed as probation ; which is called , the direct manner of improbation ; but , if these be dead , the lords try the verity of the write by strong presumptions and conjectures ; which is called the indirect manner of im●robation : but because in re●uctions , the write called for , 〈◊〉 onely to be declared null , till 〈◊〉 be produced ; therefore , there ●s onely one terme granted for pro●ucing . no certification will be gran●●d against any writes , made ●y the pursuer and his predeces●●rs and authors ; except he be ●●rved heir to these predecessors , and produce a right made by these authors : but certification will ●e granted against any rights made to the defenders , or their predecessors , to whom they may succeed jure sangui●is , or to their authors , or any to whom these authors may succeed jure sanguinis ; if any person be called to represent these authors . the ordinary reductions are ex capite inhibitionis , whereb● we pursue rights to be declar●● null as granted after inhibition is raised by us ; or ex capite interdic●ionis if granted after interdictio● is raised by us ; or ex capite vis 〈◊〉 metus , if the rights were extort●● from us by force ; or ex capit● fraudis , if the rights were eli●● from us by circumvention , in bot● which last the pursuer mu● lybell the qualifications , or circumstances from which th● force or fraud are inferred or ex capite lecti , if the deed were done upon death-bed , i● prejudice of an appearand heir● or upon the act of parliament ▪ * , if the deeds were don● in prejudice of prior lawfull creditors , in favours of conjunct or confident person ; that is to say ▪ relations , or trusties , without an onerous cause , or to a creditor● , though for an onerous cause , in prejudice of another who had done prior diligenc● , that was habile to affect the subject disponed ; all whi●h , and many others of that nature are opposed to ordinary actions ; because , they are extraordinary remedies invented by law , for the preservation of mens rights , and are called extraordinary ; because they are never competent , till other ordinary remedies fail . actions of reprobatour , and errour are in effect reductions ; and must have the concourse of the kings advocate ; in the first whereof , a party against whom witnesses have deponed unjustly ; craves , the decreet pronounced upon these depositions to be reduced ; because the witnesses have deponed fasly , circa initialia testimoniorum ; and condescend in his reasons of reduction , up on the particulars wherei● they have deponed fasly ; and also concludes , that the testimonies should be reprobated . in the summonds of error ; the pursuer craves , that a service ( whereby the defender is served hei● to such a man ) ought to be reduced ; because the pursuer is a ne●rer relation to the defunct ▪ than the person wrongously served ; upon which he condescends ; and therefore concludes , that the service , and all following thereupon may be reduced ; and that it may be found , that the inquest who served him heir have erred ; and this is the only summonds that is drawn in l●tine with us . some actions , are called preparal●r● , or prejudiciall actions ; because , they must be discussed before other actions are competent ; as for instance , if i pursue for a sum , and the defender raises an improbation , alledging the write to be false ; the tryal of the falshood , must be first discussed ; and so is prejudicial to the action of payment . exhibitions conclude , either meerly to exhibit the write , or the thing called for ; and then it is only a preparatory action ; such as exhibitions ad deliberandum ; or else they conclude delivery ; and in all exhibitions , the ordinar terms lybelled , are that the defender had , has , or has fraudfully put away the papers or things craved to be exhibite ; and therefore , he is not obliged to exhibite , except he had them since the citation , or fraudfully put them away , to elude a future citation . some actions are called , actiones , bonae fidei ; in which equitie is followed , as actions upon mandates , depositations , emption , location , &c. in which the iudge considers what in equity is to be done by one party to another . and some actions are stricti juris ; in which the iudge is to follow the strict prescript of the contract upon which the action is raised , as in a declarator of redemption , wherein the pursuer craves , that it may be declared that he has lawfully redeemed the lands , that were wadseted ; in which case the judge must consider the very precise terms of the reversion , and that the lands were redeemed conform to these terms ; nor is equipollency relevant in these cases . some actions , are called rei persecutoriae , by which we pursue that quod patrimonio nostro abest ; which is commonly called , dammage and interest . some are called , penal actions ; because we pursue not only for repetition , and real dammage , but for extraordinarie dammages , and reparation by way of penalty ; such as are spulzies , actions for violen● profits , &c. some actions , are called arbitrary actions , wherein the iudge is tyed to no particular law ; but proceeds ex nobili officio , that is to say , according to what he sees just and fit ; as an action for proving of the tenor of an evident , wherein the complainer lybels , that he had such a paper , ( of which he must lybel the full tenor verbatim , ) and that he lost it by such an accident ; and therefore concludes ▪ that the tenor may be proven by witnesses , and adminicles in write , which he must libel ; for , no tenor can be proven , without some adminicles in write : and generally , there being many things , with which the law behooved to trust the discretion and honesty of the iudge , since all cases could not be comprehended under known laws ; it therefore invested the iudge with this eminent power , which is called , nobile officium , in opposition to that officium ordinarium , & mercenarium , wherein he is obliged to follow the will of the contracters precisely , & hoc officium mercenarium iudex nunquam impertit nisi rogatus . some actions , are called , declarators ; because the pursuer concludes in them , that some special thing should be declared in his favours ; and ordinarly , whereever the king , or any other superiour grants a gift , he to whom it is granted pursues a declarator , craving , it may be found and declared , that the casuality gifted to him , has faln in the superiours hands ; and that he has right thereto , by vertue of the gift : and thus declarators must be raised upon escheats , wards , marriages , nonentries , &c. onely there needs no declarator upon a gift of forefaulture ; and upon gifts of escheat , they raise actions , both of general and special declarator in one summonds . in the general , the pursuer concludes , that it should be found and declared , that the rebel was lawfully denounced to the horn ; and that thereby his escheat fell in the superiours hands : and in the special , he concludes , that the tennents of the rebels lands , whose escheat is faln , may pay him the meals and duties , by vertue of his gift , and decreet of general declarator . but though this last action be called , an action of special declarator ; it is in effect but an action of meals and duties : in other cases also , where any thing is craved to be found and declared , as a right arising upon a special matter of fact , for which no other action can be found , that has a special name : lawiers doe now cause raise actions of declarator ; or at least , cause adject conclusions of declarator to other actions , such as reductions , &c. and these are the same with the actions in factum , mentioned in the civil law. some actions are called civil , wherein men prosecute their civil rights ; and some criminal , wherein men prosecute crimes , ad vindictam publicam . for further clearing of actions , and how they ought to be lybelled ; i shall shortly explain the nature of a summonds ; and shall set done some of those actions which have special names and conclusions . the chief parts of a summonds , are the pursuers interest , that is to say , the right standing in his person , whereby he has good interest to pursue the action he has intented . secundo , that all the persons who should be called as defenders , be called in the summonds , and since it is a relevant exception against a summonds , that all persons having interest are not called ; therefore it follows clearly , that for the more securitie it is fit to call all persons , who may be concerned in the debate . tertio , the medium concludendi ; that is to say , the ground whereupon the persons called , are lyable to pay and perform what is craved . quarto , after all this is narrated , the king in the summonds , says , our will is , &c. that ye cite such and such persons , &c. which is called , the will of the summonds , and which will of the summonds does comprehend , a command to the messenger , to cite the defenders ; and expresses the number of dayes , upon which they are to be cited ; and the places to which they are to be cited ; and before whom they should compear : as also , the conclusion craved by the pursuer , each of which summonds , almost has it own special stile and terms ; and by act of parliament , writters are commanded not to alter the ancient stile * it is observable , that though the matter of fact be ordinarly narrated before the will of the summonds ; yet summonses of reduction , improbation , transferrance , spulzie , and declarators of nonentrie ; begin , at , our will is , &c. and then goes on to the interest of the pursuer , &c. in a summonds of transumpt , the pursuer ( who in the summonds is alwayes called the complainer ) lybells , that he has right to the lands whereof he craves the papers to be transumed ; and that therefore it is necessar to him to have doubles , and transumpts of the rights ; and this is the pursuers interest ; and that the defender has these rights , or is obliged to procure him transumpts ; and therefore concludes , that the defender should be obliged to exhibite , and produce them , to be judicially transumed ; and the authentick transumpts to be declared as sufficient for the security of the pursuer in the saids lands as the original writes themselves . in a summonds of multiple poinding , the complainer having narrated , that he is troubled by such and such persons , who do each of them pretend right to a sum , in which he is lyable ; he therefore concludes against all of them , to compear to hear and see the same tryed ; and the party who shall be found to have best right to be preferred ; and the other party to be discharged from troubling and molesting him in all time coming . in a summonds of transferrence , the complainer lybells that the defender is heir to his debitor : and concludes , that the debt should be transferred in him passive as heir ; and upon the other passive titles ; and therefore , that letters and executorials may be directed against him , in the same manner as they might have been directed , used , and executed against his predecessors , before his deceass . these transferrences are used when there is an decreet obtained , or bond registrated against the defunct in his life-time ; but if the bond was not registrated , then there is a summonds of registration raised in which the pursuer concludes , that the said bond should be insert and registrated in the books of council and session , to have the strength of a decreet ; and executorials to be direct thereupon in manner therein mentioned . in a summonds of prevento ; the complainer narrates , that he having raised letters of horning , the same were suspended upon must frivolous reasons , to a very long day ; and therefore concludes , that the defender should bring with him the said suspension , the blank day of blank , prevento termino : to hear and see , the same called , reasoned and discussed , with certification , that if he sail , the lords will cause call the suspension , upon a coppie , and admit protestation therein , and ordain the letters to be put to furder execution . if an advocation be raised to too long a day of compearance , there may be likewise a summonds of prevento raised thereof . in a summonds of contravention of laborrows ; the pursuer lybells , that a. b. became surty , and laborrows for c. d. that the complainers , wife , ba●rns , men , tennents , and servants , should be harmelesse , and skaithlesse in their bodies , and lands , &c. and then subsumes upon the prejudice done , notwithstanding of the said caution : and therefore concludes , that both the principal and cautioner , should be decerned to have contraveened the said act of caution , in manner foresaid ; and therethrow , that they conjunctly and severally have incurred the foresaid pain , the one half to the king , and his thesaurer , and the other half to the complainer , as party grieved . in a declarator of property , the complainer narrates his right to the lands , and how long and after what manner , he and his authors have been by themselves , their tennents , and others having right from them , in the peaceable possession of the saids lands ; untill of late that he is molested , and troubled by the defender ; and therefore concludes that it should be found and declared , that he has the sole , good , and undoubted right , and interest in and to the saids lands ; and that therefore the said defender , and his tennents , and servants and others , of their causing , and commanding , should be decerned , not to trouble , nor molest them for the future , in their peaceable possessioon , bruiking , and joysing thereof . if the complainer designs only to maintain his possession ; without bringing his propertie in contraversie he raises a summonds of molestation ; in which he only concludes , that they should desist , and cease from troubling and molesting him in the peaceable possession of his lands . in a summonds for poinding the ground , the pursuer narrates , that he stands infest , and seased in an annualrent of to be uplifted , out of the lands of and therefore concludes against the tennents of these lands ; and the heritor for his interest , to hear and see letters directed to messengers at armes , sherriff in that part , to fence , arrest , apprise , compel , poind , aud distrinzie the readiest goods and geer , that are presently upon the lands ; and yearly and termly in time coming , during the not redemption of the annualrent . in a summons of spulzie , the king commands messengers , &c. ( which is the stile of all summonses , which begin with , our will is , ) to summond , warne , and charge the defender , to compear and answer at the instance of the pursuer against whom the spulzie after specified was committed ; that is to say , the defenders for their wrongous , violent , and masterful coming by themselves ; and their servants , complices , and others in their name ; of their causing , sending , bounding out , command , reset , assistance , and ratiabition , to the lands of upon the day of and for their wrongous , violent , and masterful spoilziation of the goods ( to be condescended on ) and then concludes , that they should pay the prices extending to and the profits , that the complainer might have made of the said ▪ goods daily since the said spulzi●tion , extending to &c ▪ in a summons of wakning ▪ the complainer after narrating that he had raised such ● summonds , which he had suffered to lye over and sleep ▪ for a year ; ( for there need● no wakning if there was any iudicial act , or minute upon the summonds within th● year ) and therefore concludes against all the person● cited in the first summonds , to hear and see the foresai● action called , wakned , and begun , where it last left insisted into , and iustice administrate therein , till the final decision of the cause . a furthcoming is that action , wherein the arrester lybels , that he having raised ●etters of arrestment , he caused , messenger lawfully fence , and arrest all debts owing by ●he defender to the debitor , ●o remain under arrestment ; and to be made furthcoming to him ; and therefore concludes , ●hat the defender should be decerned to make furthcoming payment , and delivery to the said complainer , of the sum of adebted , restand , ow●nd be him to the said debi●or . if notwithstanding of the arrestment , the debitor pay his own creditor ; there is an summons for breaking of arrestment , wherein after the arrestment , and payment is narrated , the pursurer concludes , that the defender should be decerned to have broken the arrestment then standing ; an● not lawfully and duely loosed ; an● therefore to be punished in his person , and goods , conform to th● laws of the realm , in example ●● others . though the accumulati●● of several actions into one lybell was not allowed by the ci●●● law ; yet it is allowed by ours , in which we may no● only pursue several persons ▪ for several debts in one lybel● which we call by a general name , an actions against debitors but we may likewise accumulate several conclusions , agains● one and the same person though they be of different n●tures ; as reductions , improbations , and a declarator of propertie , and actions of general , and special declarator ; in all which it is a general rule , quot articul●● tot libelli . but when many actions are ●ompetent , for one and the same thing , as if a messenger be deforced , we may pursue ●he deforcer criminally ; ( which will infer confiscation of moveables , or civilly for payment of our debt ; and the pursuing of ●he one does not extinguish , or consume the other ; and either the criminal or civil action may be first pursued ; and ●n the concourse of all actions , ●f the actions which concurr ●ave different conclusions , as ●n the foresaid instance , where the criminal action of deforcement concludes confiscation , and the civil action only payment ; though the defender be assolzied in the criminal pro●●ss , yet he may be pursued civillie , and the deforcement referred to his oath . title ii. of probation . for understanding the matter of probation , it i● fit to know , that al● probation is either by write , by oath , or by witnesses . probation by write , has been formerly explained in the title concerning obligations by write . probation by oath , is when either the partie or judge ; referres any thing to the oath of the contrare partie ; but regularly , no mans right can be taken away by oath ; except he who has the right , referr the same to the adversaries oath ; but when there is a former probation already adduced , the iudge sometimes gives an oath of supplement , which is so called , because it is given to supplie the probation already ●ed . an oath of calumnie , is that whereby either the pursuer , or defender is obliged to swear that the pursute , defence , reply , &c. are not groundless , and unjust , and this may be craved by either party , at any time during the dependence ; and if it be refused , the pursuer will have no further action ; nor the defender will not be allowed to insist any furder in that defence , duply , &c. whereon his oath of calumny is craved . an oath in litem , is that which law allows the iudge to deferr to him who is injured ; for proving the quantities of the thing wherein he is injured ; v. g. if i pursue titius , for having brok up my trunk ; and i have proved that he did break it up : the iudge will refer to my oath , what i had in the trunk ; and this is allowed both in odium of him who commits the injurie ; and least the person unjustly injured should loss his right for want of probation . a qualified oath , is , that whereby he to whose oath any thing is referred , depones , not simply ; but circumstantially ; which we call to depone with a quality ; v. g. if i pursue titius for payment of . lib. which he promised to pay , who compears , and depones , that he did indeed promise ; but it is as true , that he allowed the pursuer to intromit with goods belonging to the deponent , equivalent to the sums due by the promise : with which accordingly he has intromitted : and those qualified oaths generally are admitted ; if the quality be intrinsick , that is to say , necessarly imployed in the nature of the thing ; as in the foresaid instance . but if the quality be extrinsick , it in effect resolves in a defence , and so must be proven otherwayes , than by the qualified oath ; as if a debt be referred to a parties oath , who depones , that he acknowledges the debt , but that it is payed ; this will not be admitted as a qualitie , but is in effect a defence which must be proven , otherwise than by his oath . probations by witnesses , having been allowed in all cases of old , untill the falseness of men forced our law-givers , to allow nothing above . lib. to be proven without write , or oath , and promises , to be only proven by oath ; this probation by witnesses is therefore called , probatio pro ut de jure ; and it is fit to know , that none within degrees defendant , that is to say , who are cousin germans , or of neare● relations , can be witnesses ; no● women , nor tennents , who have no tacks , nor persons declared infamous , nor domestick servants ▪ nor such as may gain , or loss by the cause ; nor such as have given partial counsel ; that is to say , advice to raise or carry on the pursute ; or such as have told what they will depone ; which we call prodere testimonium ; nor such as compear to depone without being cited ; whom the law calls , testes ultronios , and rejects them , because of their suspected forewardness ; all others except these may depone , and are called habile witnesses : and if habile witnesses refuse to come when they are cited , there will be first horning , and then caption directed against them ; which are called first and second diligences , but their escheates will not fall upon that horning . presumptions , are a kind of probation , and a presumption is defyned to be a strong ground or argument , whereby a iudge has reason to think , or be convinced , that such a thing is true ; and they are divided into presumptiones juris , which though they be strong , yet may be taken off by a contrary probation ; as if a man threaten to poyson another , if the person was thereafter poysoned , it is presumable that he was poysoned by the threatner ; and presumptiones juris & de jure ; ubi lex constituit super presumpto ; and thus the law presumes , that an ultronius witness , who offers him . self , is partial ; and therefore statutes upon that presumption , that he shall not be received ; and against these presumptions , no probation can be admitted . title iii. of sentences and their execution . after a decrect is extracted , the obtainer thereof raises letters of horning thereon ; whereby the party decerned is charged to pay or fulfill the will of the decreet ; under the pain of rebellion ; and this decreet can only be quarrelled by reduction , or suspension , in both which the reasons whereupon it is quarrelled are set down ; nor can a decreet of the lords , be taken away without reduction ; and if there has been a debate in the first instance , ( for so we call the action before the decreet ; as we call reduction and suspension the second instance ; ) then nothing that was competent to have been proponed before the decreet , will be admitted but will be repelled , as competent and omitted ; for else there should be no end of debate ; but yet if any thing have newly emerged ; or has newly come to the parties knowledge , these are and must be received , if he depone , that he knew not the same formerly . the ordinar effect of a suspension is to stop the execution of sentences for a time ; and it is a summons , wherein the party alledged injured by a decreet , does cite the partie who has obtained the decreet before the lords , ( for no inferiour court can suspend , ) to answer to the reasons offered by him , for suspending execution upon that decreet : which summons proceeds upon a bill , wherein the reasons are represented to the lords ; for though sometimes , the lords ordains the reasons to be debated upon the bill ; yet ordinarly they ordain letters of suspension to be raised : if the decreets be in foro , then the suspension must pass by the whole lords in time of session , and by three lords in time of vaccance ; but other decreets may be suspended by any one lord. there are other reasons allowed to be insisted on beside these in the bill , and these are called eiked reasons , and a man may suspend upon new reasons , as oft as he pleases for competent and omitted is not received against suspensions . if the suspension be called , discust , and the letters found orderly proceeded , that is ordained to be put to furder execution : then letters of caption may be raised ; whereby all the inferiour iudges and magistrates , are ordained to concurr with the messenger , in apprehending the rebel , and putting him in prison ; which if they refuse : or if the prisoner thereafter escape out of their prison , they are lyable to pay the debt ; by a subsidiarie action . decreets are executed likewise by poinding , and arrestment upon the warrand in the letters of horning , which are fully treated in their proper places , vide supra , tit. poinding , and arrestments . tit. . part . as to execution of immoveable goods , which is by comprising and adjudication , the same is formerly treated , part tit . . if the decreet be , to remove from lands , then the party decerned to remove , being denounced rebel , for not removing ; the sherriff , or iudge ordinar , is charged to eject , who comes to the land , and puts out the fire , or casts out some of the plenishing ; but if a man continue to possess in spight of all law , after he is legally ejected , the privy council will give letters of fire and sword , to the party injured ; commissionating the sherriff , and others whom he will name , to dispossess him by the sword , to raise fire , and use all other severities , for which the commission does indemnifie them . if such as have debatable rights , choose rather an amicable , than a iudicial decision ; they subscrive a submission to arbiters , and if they please , to an oversman , and another blank on the back of the submission ; wherein they may fill in their decreet arbitral : and though it be free to these arbiters to accept ; yet if they once accept , the lords will grant letters of horning to force them to decide . though these arbiters are not tyed to the strict solemnities of law , yet they must observe material iustice ; and therefore , they must advertise parties , that they may give in claimes ( for a claime to arbiters is in place of lybels to iudges ; ) and must allow terms to prove ; and though equity is to them a rule , as law is to other iudges ; yet if either party be enormly lesed , the lords will suspend and reduce their decreets . if the submission bear no special day , betwixt and which they are tyed to decide , they must decide within a year of the submission ; and if witnesses will not voluntarly appear before them , the lords will upon a bill , grant letters of horning to force them to appear . title iv. of crimes . crimes are either private , where the injury is committed against private persons ; or publick , where it is committed immediately against the common-wealth . private crimes , called also delicta , in the civil law , oblige the committers to repair the dammage , and interest of the private partie . crimes are in scotland either punished capitally , by death ; or pecunially , by a certain fine ; or arbitrarly at the discretion of the iudge . capitale crimes are treason , which is punished by forefaulture of life , lands , & goods . it is treason in any man , to plot , contrive , or intend death , or destruction to the kings majesty ; or to lay any restraint upon his royal person ; or to deprive , depose , or suspend him * , or to endeavour the alteration or diversion of the succession * ; to levy warr against the king , or any commissionated by him ; or to intyse others to invade him * , to make treaties , or leagues with forraign princes ; or amongst themselves without his consent * . to rise in fear of warr against the king ; to raise a frey in his hoast † , to assaile castles where he resides * ; to impugne the authority of the three estates ; to decline the kings authority ; not to come out to the kings hoast ; or to desert it * ; to maintain or reset treatours ‡ ; to conceale treason ; to countersite the kings coyne ; and to raise wilful fire * ; all which are species of high treason . we have a kind of treason in scotland , which we call statutory treason ; because it is meerly introduced by statute , and not by common law : viz. theft in landed men ‡ ; because of the danger of that kind of theft ; murder under trust * ; as if one man should kill another , when he invites him to his house ; or a tutor should kill his pupill ; which because of the easiness and attrociousness of the crime is made treason ; the fireing of coals heughs * , assassination * ; & the pursueing another for treason without being able to prove it ‡ . all iesuits , seminary priests , and traffecking papists * ; and all thieves , who take bonds from lealand honest men , for re-entering when they please : all who purchase benefices at rome ; are guilty of treason ‡ . no crime can be pursued against a man or his heirs , after his death ; except that treason which is committed against the kings person , or common-wealth . the other capital crimes are blasphemie , mans slaughter , or homicide ; for all homicide is capital with us : except it be casual * , or homicide in self defence . * theft is punishable by death ; but we call small theft pickery , and it is only punishable arbitrarly * . notour adulterey , that is to say , where there are children of the marriage : or where the adulterers converse openly at bed and board ; or being discharged by the church to converse , do continue to converse is punishable by * death ; but simple adultery is only punishable arbitrarly . incest * , buggery , duells † , the invading of any of his majesties officers , for doing his majesties service * ; forgery † , witchcraft , and the consulters of witches * , sorners ; that is to say , such as masterfully take meat and drink from the kings people without payment † : all wilfull hearers of mass * , and conceallers of the same ; mutilation † , which is the disabling of a member , ( though de praxi ; this be ordinarly punished with an arbitrary punishment : or the authours of infamous lybells , seditious speeches , tending to sedition ; the strickers of any iudge in judgement ; mixers of wine * , and committers of hame-sucken , by which we understand the assaulting or beating any man in his house . the crimes to be pecunially punished are the slayers of red-fish * ▪ killers of daes , deer , roes † ; destroyers of bee-hyves , fruit-trees , greenwood ; kindlers of mure-burn ; except in the moneth of march ; steeping of green-lint in runing waters . or loches ; such as are guiltie of abominable oaths ; and furnication . crimes to be arbitrarly punished at the discretion of the iudge , are negligence in the kings iudges and officers * , and such as unjustly murmure against them † ; breakers of the kings protection * : the bringing home of erroneous books † ; and the troublers of church-men ; crafts-men * who wrongously refuse to fulfil the work which they have taken in hand ; verbal injuries , and scandals , against private parties . it is fit to know , that no punishment left arbitrary by the law , to the discretion of the iudge , can be by him extended to death ; and that where-ever the law appoints death to be inflicted , the offenders moveables fall to the king ; though the law does not express the same ; and though the sentence express not the confiscation . there are other crimes , whereof the punishment is not reduceable to any of these kinds ; and thus perjury , and bigamie , ( which is a kind of perjury ; because , a man who marries two wives breaks his matrimonial oath , ) are punishable by confiscation * of all the offenders moveable goods , imprisonment , and infamy . deforcers of messengers , and breakers of arrestment , are punishable by confiscation of all their moveables † ; forestallers of mercats * , by buying things before they be pr●sented to the mercat ; or before the mercat be proclaimed , are punishable by imprisonment , and confiscation of what is bought . ocker , or usury * , which is the taking more than the annualrent allowed ; or the taking annualrent before the term of payment ; is punished by loss of the principal sum ; for the debitor is to be free from the obligation , and the write being reduced , the sum belongs to his maiestie . stellionat or the making of double rights ; is punished by infamy * ; and their persons are at the kings will. the keepers of victual to a dearth , are punishable as * ockerers ; and by the civil law , per leg : iul : de annona . bribing of iudges is punishable by infamy and deprivation ; plagium or the stealling of men , is a particular crime by the civil law ; but is a species of theft with us . and theft-boot which is the saving a thief by fyning with him , is punishable as theft * . baratrie , or the obtaining benefices from rome , is punishable by † banishment and infamy . ambitus , or the obtaining offices by unjust means , is not punishable under monarchie . the punishment of crimes is taken off , either by remissions , which must pass the great seal ; and must express the greatest crime † , for which the remission is granted : or by indemnities , which is a general remission granted by the king or parliament ; betwixt which two there is this difference , that the obtaining a remission does not free the obtainer , from * assything the party , that is to say , from repairing his losses ; since it s presumed the king does only discharge what belonged to him , which is , vindicta publica ; but not what is the interest of private parties , or vindicta privata ; but because all the people are represented in parliament : the king and parliament may by their indemnity ; discharge both the one and the other . he who founds on a remission , acknowledges the crime ; but he who founds on an indemnity does not . the king likewise restores men sometime against forefaultures ; which restitution is either by way of iustice , finding that the person was unjustly condemned ; and then the person condemned is restored to all that ever he had ; and he recovers not only his fame , but his estate ; though transmitted to third parties . † or secundo , the restitution is by way of grace and meer favour ; and then the partie condemned cannot recover , what was bestowed by the king upon third parties ; for the king cannot recall what was once legally and warrantably granted by him . finis . notes, typically marginal, from the original text notes for div a -e * k. j. par. . act ● * k. ja. . par. . act . k. jam. . par. act . ● . mary par. . act . k , ja. par. . act . * k. ja. . par act . * k. ja. par . . act . k. ja. . par. . act † k. ja. par . . act . * k. ch. . par. act. . par. . act . * k. c. par . . * k. c. ● par. . sess. , act . ‡ par . act . * k. j. . par . . act * k. c. par . . act . * k. j. . par. . act * k. c. ● par. . sess. . act . and ▪ par. . act . * act foresaid * king ch. . par. . ses. . act. . * k. ja. . par . . act k. ch. . par . . act . k. ch. par . . ses. . act . * k. j. . par. . act k. ja. . par. . act * k. ja. ● . par. . act. ● . * k. ja. . par . . act , , , , . * k. ja. . par. . act . * k. c. par. . sess. . act . * k. c. par . . act . * k. c. par . . act . * k. j. . par. . act * k. c. par. . sess. . act . * leg. mak. . act . quoniam attach . cap. † k. ja. . par. ● . act . * k. ja. . par. . act. . * quoniam attach , cap. . * k. c. par. . act . * k. ja. . par . . act , * k. ja. . par. . act * k. ja : . parl . ● . act . k. char . par . . sess : . act . sess . . act . * k : j : : par : : act . * k. j. . par . . act . * k. ja. . par . . act . * k. ja. . par . . act . * k. ja. . par. act ▪ * k. ja. . par. act . * act foresaid . * k. ja. . par. . act . * k. ja. par. act * k. ja. par. act . * king james par. . act . * king james par : : act * king charles : par . ● sess : : act . * king james par . act . * levit. chap. k. ja. , par. . act . * king charles . parl . . sess. act . † king james par . . act . k char par. . act . sess. . * k. c. par. . act . * reg. ma. lib. . cap. . leg. burg. cap. . * k. ja. . par. act * k. ja. par. . act . * q. m. par. . act . * k. c. par. . sess. ● . act . * k. c. par. . act . * statu● : a will : cap. . * k. j. . par. . cap. . * k. c. par. . act . * k. c. par. . act . * k. j. . par. . act . k. j. . par. . act . * q. ma par. . act . k. ja. . par : . act ● . * k. j. . par. . act . ‡ k. j. . par. . act . * k. c. par. . act. . * k. j. . par. . act . k. ja. . par. . act . * stat : rob. . cap. . * stat : rob. . cap. . reg : majest . lib. . cap. . par. . & . * leg. mal. cap. ▪ * k. j. . par. . act . * k. j. . par. . act . * k. j. . par. . act . * k. j. ● . par. . act . ‡ k. j. . par. . act * k. j. . par. . act . * q. ma par. . act . * k. j. . par. . act . * k. c. par. . sess. . act . * k. j. . par. . act ▪ . * k. j. . par. . act . * k. j. . par. . act . par. . act . * king char. . par . . act . * k. j. ▪ par. . act . * k. c. par. . act ▪ . * k. c. par. . act . † k. j. . par. . act . * k. j. par . . act . * tyths or tenths : * k. j. . par. . act . * k. c. par. . act . and . k. ch. ● par. . sess. . act . * act of sed. . feb ▪ . . * k. j. . par ▪ ● . act ▪ & . par . ● . act ● . * k. c. ▪ par. . act . * k. j. . par. . act ▪ ▪ * k. j. . par. . act . * k. c. . par. . sess. . act * k. c. par . . sess. . act . * k. j. . par. . act . * k. j. par . . act . * k. j. . par. . act . k. j. . par. . act . * k. c. par. . act . * act foresaid . * k. c. par. . sess. . act . * k. c. ● par. . sess. . act . * k. c. par. sess. . act . * k. c. par. sess. . act. . o●l●gat●on . * contracts . * contracts . * mutuum . * commodatum . precariu● . depositation . pledge . condictio indebiti . obligation by write . promises . * k. j. . par. . act * k. c. pa● . . act . bills of exchange . emo & vend . emption . * location . society * mándate . gen. & par. mand. exercitor . institor homologation . quasi contractus . negotiorum gestio . tutory . cautioners . relief of cau : donations . remuneratory donations . donations in contemplation of death . gifts . consent . discharge . dis charges general and particular . apocha trium annorum . payment . acceptilation compensation . innovation ▪ consusion . assignation . cedent & assig . intimation . blank band. of arrestments . and poyndings . * k. j. . par. . act . * k. c. par. . sess. . act . * k. j. . par. . act . * 〈…〉 par. act poinding : * k. j. . par. . act . k. ch. . par. . sess. . act . * k : c : par : : sess : : act ● : labour ing oxen * k. j. par . . act . pes●r . pres : of herit . rights . pres : of personal rights . * k. j. . par. . act . par. ● . act ●● : * k. j. . par. . act . * k. j. . par. . act . * k. j. . par. . act . assyers . * k. j. . par. . act . forfeiture : * k. j. . par. . act . * k. c. par. . sess. . act . * k. j. . par. . act . prescription interruption● * k. c. ▪ par. . sess. : act . * k : c : par : . act . heir : heir of line : grand children . collaterals . representation . heirs of line . heir of conquest . conquest . heirs male. heirs of provision . heirs portioners . discussion ▪ heir active . appearand heir . * annus delib . k. ●a . . par. ● . act. . posthum child . general brief . behaving as heir . succes . tit . lucr . rights on death-bed . * stat. will. reg. cap. . inventary testaments . legacy jus relicta . legittim . deads part executor . * k. j. . par. . act . colation . exec. nominate . execut. dative . executor creditor . * act of sed. . feb. . special legacy co-execut . diligence of exe : prvil . debts . decreet of exoneration . vitious intromission . relief , &c. ultimus ●aeres . bastardy . * k. j. ● par . ▪ act . actions real & personall actions improbation . reduction . terms of imp. direst manner of imp. indirect manner of imp. certif . in imp. * k. j. . par. . act . reprobatour . summonds ●● error act prejudicial . exhibitions . actiones bonae fidei . actiones stricti juris . rei persecutoriae penal . arbitrary . declarators . civil actions nature of a summonds . medium concludendi . will of the summonds . conclusion . * k. j. . par . . act. ▪ transsumpts . multiple poyndings . transferrence summonds of regi ▪ stration prevento . advoca ▪ tion . contra : of laborrows . declar : of property . summonds of mole ▪ station . poynding of the ground . spulzie wakning . furthcoming breach of arrestment . accumulation of actions concu●sus actionum . defor●ment . probation . by write . by oath . oath of calumnie . k : j : ● par : : act ● oa●h in litem . a qualified oath . presumption . suspension . caption subsid : action . ejectino . letters of fire and sword. decreets arbitral . crimes . delicta treason . * k. j. . par . . act . k. c. par . . sess. . act . * k. c. par . . act . * par. . act . * k. c. par . . ses . . act . † k. j. par . ● . act . . k. j. . par . . act . * k. j. . par. . act . & . * k. j. . par. . act . ‡ act par. . * k. j. . par. . act . stat : treason . ‡ k. j. . par. . act . * ibid. act . * k. j. . par. . ast . * k. c. par. . act . ‡ k. j. . par. . act . * k. j. . par. . act . ‡ k. j. . par. . act k. ja. , par. . act . * k. c. par. . sess. . act . * k. j. . par. . act and . * k. j : : par : : act . * q : m : par : : act : k : ja : : par : . act † k : j : : par : : act : * k : j : p : : act : † k : j : par : : act : * j : : p : : act : † q : m : act : par : : * k : j : : p : : act : † q : m : p : : act : † k : j : : par : : act : & : * k : j : : p : : act : † k : j : : p : : a : : * k. j. . par , . act . * * k. j. . par : : act : & act : par : : ●act : † k. j . par. . act . * k. j. . par. . act . † k. j. . par. . act . * k. j. . par. . act . † k. j. . par. . act . * k : j : : par : : act : k : ja : : par : : act : * q. ma par. . act . † k. j. . par. . act par. . act * ibib. act * k. j. : par. . act . par. . act par. . act * k. j. . par. . act . k : ja. . par. . act * k. j. . par. . act . k. ja. . par. . act . * k. j. . par . . act . † k. j. . par. . act . par. . act † k. j. par. . act . * k. j. . par. . act . k. ja. . par. . act . † k. j. . par. . act . the declaration of the right honourable the duke of buckingham, and the earles of holland, and peterborough, and other lords and gentlemen now associated for the king and parliament, the religion, lawes, and peace of his majesties kingdomes. with three letters (delivered july the .) one to the house of peers; another to the house of commons: and the third to the ld. major, aldermen, and commons of the city, in common-councell, assembled. buckingham, george villiers, duke of, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason e _ ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing b thomason e _ estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; :e [ ]) the declaration of the right honourable the duke of buckingham, and the earles of holland, and peterborough, and other lords and gentlemen now associated for the king and parliament, the religion, lawes, and peace of his majesties kingdomes. with three letters (delivered july the .) one to the house of peers; another to the house of commons: and the third to the ld. major, aldermen, and commons of the city, in common-councell, assembled. buckingham, george villiers, duke of, - . holland, henry rich, earl of, - . peterborough, henry mordaunt, earl of, ?- . [ ], , [ ] p. [s.n.], london : printed in the yeare, . the duke of buckingham = george villiers; the earles of holland and peterborough = henry rich and henry mordaunt. in this edition line of title ends: (delivered july the .). annotation on thomason copy: "july. th". reproduction of the original in the british library. eng law -- england -- early works to . religion and state -- england -- early works to . great britain -- history -- civil war, - -- early works to . great britain -- politics and government -- - -- early works to . a r (thomason e _ ). civilwar no the declaration of the right honourable the duke of buckingham, and the earles of holland, and peterborough, and other lords and gentlemen n buckingham, george villiers, duke of a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion the declaration of the right honourable the duke of buckingham , and the earles of holland , and peterborough , and other lords and gentlemen now associated for the king and parliament , the religion , lawes , and peace of his majesties kingdomes . with three letters ( delivered july the . ) one to the house of peers ; another to the house of commons : and the third to the ld. major , aldermen , and commons of the city , in common-councell , assembled . london , printed in the yeare , . the declaration of the right honourable the duke of buckingham , and the earles of holland and peterborough , &c. finding this conjuncture to be the proper time , when this wearied kingdome may be delivered from those miseries , it both hath and may apprehend yet to feel , by such persons , as are il-affected to our peace ; who at this time without authority or commissions , disperse themselves into all parts , to raise forces , with no other intention , but to continue a bloudy and intestine war , which may prove dangerous to the whole kingdome from the assistance they find by the committees of the severall counties , who have so abused their power and the people , by an arbitrary way of government , as they shun and apprehend nothing more then what we shall endeavour and seek , peace , and a wel-setled government ; and therefore that the whole kingdome may be satisfied upon what grounds and principles we go to oppose and prevent this mischief and danger , we do here declare that we do take up armes for the king and parliament , religion and the known laws , and peace of all his majesties kingdomes : professing before almighty god , that we have no other designe in this undertaking , but to see this well , and speedily established , and will with readines and joy lay them down whensoever god shall give us the injoyment of this blessing , professing that whatsoever may be our successe and prosperity in this good cause , we shall not say by way of menace to the parliament , that we will use the power god hath put into our hands , but shall blesse god that he hath made us the instruments to serve the king , the parliament and kingdome in the way of peace , in a just and equall composure between them ; and we hope the city and the kingdome , will well weigh and consider whether they may not more reasonably and conscionably joyne with us in these pious and peaceable resolutions , then with those forces that have by their breach of faith , and their disobedience , kept up the sword , when those that delivered it into their hands , commanded the laying of it downe ; which disobedience hath brought this fresh storm of bloud , that is now falling upon this kingdome , and all those fears and confusions that petitions daily shew to be in the thoughts and apprehensions both of the city and the whole kingdome : we might adde sad circumstances that are of late discovered and broken out concerning his majesties person , and likewise a confused and levelling undertaking to overthrow monarchy , and to turn order that preserves all our lives and fortunes into a wild and unlimited confusion ; but we desire not to expresse any thing with sharpnesse , since our ends and pursuit is only peace ; which shall appear to all the world , whensoever we may see a personall treaty so begun with his majesty as we may expect a happy conclusion by it , that cannot follow but by a cessation of armes , which in all parts of the world hath accompanied these treaties , even between the bitterest enemies , christians & turks , much more to be expected in these our civill divisions amongst our selves , for the sword should not be in action as long as a treaty of peace is in agitation , since accidents of hostility on both sides will sharpen and divide us rather then close and unite us . this we thought fit both to desire and to declare that the discourses that may be raised upon our actions , may not have power to abuse the kingdome , as if we did only move in a way to set up his majesty in a tyrannicall power , rather then in his just regall government , the which hath been alwaies found in this nation , very well consistent with the due rights and freedoms of parliament , the which we do here most faithfully protest the endeavouring a preservation of , and call god to witnesse of our sincerity in this intention . holland . g : buckingham . peterborough . for the right honourable , the speaker of the house of peers . my lord , we doe here take away your jealousies by giving you a cleer knowledge of our designes ; which if you shall be pleased to communicate to the house of peers , we hope they will find , we do not vary from those principles and grounds , we have been ingaged in , both from his majesty and the parliament , which god give them grace so to think , and advise upon it , as his majesty may find his just rights , according to our covenant and declarations , and the parliament rise and recover the dignity due unto them , by a speedy way of setling the peace of this distracted kingdome . your lordships most humble servants , g. buckingham . holland . peterborough . the same to the house of commons . to the lord major , aldermen , and commons of the city in common-councell assembled . having a long time beheld the sad calamities and miseries of these kingdoms , and finding no other means for redresse , we are forced into this undertaking , which we desire may be rightly understood of all that are wel-affected , especially of this city , whose actions and endevours do sufficiently evidence their good affections . to this end we have inclosed a brief account of our intentions , which we hope may give satisfaction both to you , and the whole kingdome , whose assistance , ( with gods blessing ) we desire no farther , then our designes are reall for the good and happinesse both of the king , parliament , and kingdome , according to our covenant , your humble servants , g. buckingham . holland . peterborough . finis . fortescutus illustratus, or, a commentary on that nervous treatise, de laudibus legum angliæ, written by sir john fortescue, knight ... by edward waterhous, esquire. waterhouse, edward, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing w estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) fortescutus illustratus, or, a commentary on that nervous treatise, de laudibus legum angliæ, written by sir john fortescue, knight ... by edward waterhous, esquire. waterhouse, edward, - . [ ], , [ ] p. : ports. printed by tho. roycroft for thomas dicas ..., london : . first ed. cf. dnb. errata: p. [ ] at end. reproduction of original in university of michigan libraries. includes index. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng fortescue, john, -- sir, ?- ? -- de laudibus legum angliae. law -- great britain. great britain -- constitutional law. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion vera eefigies edvardi waterhovsi armigeri anno domini : annoqve aetatis svae portrait d : loggan ad viuum sculp : firma nobis fides blazon or coat of arms fortescutus illustratus , or a commentary on that nervous treatise de laudibus legum angliae , written by sir john fortescue knight , first lord chief justice , after lord chancellour to king henry the sixth . vvhich treatise , dedicated to prince edward that king's son and heir ( whom he attended in his retirement into france , and to whom he loyally and affectionately imparted himself in the virtue and variety of his excellent discourse ) hee purposely wrote to consolidate his princely minde in the love and approbation of the good lawes of england , and of the landable customs of this his native country . the heroique design of whose excellent judgement and loyal addiction to his prince , is humbly endeavoured to be revived , admired , and advanced by edward waterhovs esquire . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . oportet leges quidem acriter statui , mitius autem quam ipsae jubent poenas sumere . isaeus apud stobaeum , serm. . london , printed by tho. roycroft for thomas dicas at the sign of the hen and chickens in st. paul's church-yard , . to the right honourable and truely noble edward earl of clarendon , lord high-chancellour of england . may it please your lordship , though the proof of your obliging and generous virtues hath fixed in wisemen a confidence of your favourable acceptance of whatever wisdom and worth ( under the patronage of your endeared name and greatness ) presents to the publique ; and that it cannot but be thought rather a certainty then presumption , that you will treat those with ingenuous kindness , who are ambitious to perpetuate virtue , and to adorn the dead monuments of it with all those tropheys of revival and amplitude , which their greatest parts and most elaborate endeavours to that honestly-ambitious end can possibly arrive at : yet may it ( my lord ) be doubted how this enterprise of mine , by which i humbly ( under the favour of almighty god and your lordship ) design to revive the memory , and illustrate the learning of that venerable and profoundly-scientifique antecessor in the office of the chancellourship , sir john fortescue , may be from my hand accepted , who am none of the first three in adaptation to such a service . but since it pleased god as to impregnate me with resolutions to attempt , so to vouchsafe me health to finish what i proposed in these commentaryes , i trust your honour will accept the protection of them , though they be but the umbra and eccho of the various and transcendent learning that the text of the chancellour fortescue abounds with . for truely ( my lord ) had i not well-weighed my reverend original , and found in him that pondus and affluence of general and well-digested science , which would exercise the pains and curiosity of a gentleman and generous artist , i should never have ambition'd the exploration of what god would enable me to , in so incessant a progress of study as this has occoasioned . yet forasmuch as by the assistance of god i have in such proportion as his merciful indulgence has favoured my humble industry with , perfected these commentaryes , and obtained the favour and encouragement of an honourable , learned , and grave permission of them to the press for publick view ; i humbly beseech your lordship to pardon me while in pursuance of those primitive resolves of my first undertaking them ( which was above five years since ) i devote them to your perspicacious and oracular self , whom of all his most excellent majesty's favourites and ministers of estate , i foresaw , by the augury of a very affectionate and well-instructed experience , the probablest to succeed to the opportunity , and exceed in the ability to propagate fortescue in all the latitudes and advantages of his sage , legal , civil , and politique counsel and conduct of greatness , to that which is the most royal termination of it , iustice ; and by that impartial arbiter of iustice , which wise and well-advised english-men call , the law of england . and therefore ( my lord there being so true a parallel between my noble text-master and your noble self , both gentlemen by birth , both lawyers by breeding , both knights by degree , both wisemen by experience , both loyal attendants on your sovereigns recesses abroad , and both honoured by your sovereigns with the trust and state of chancellours : these instances of likeness relating to , and uniting in you both , make me bold to conclude , that to no vvorthy alive are these commentaryes so properly to be addressed as to your highly valued person , whom i believe to be not onely what the learned parisian chancellour budaeus once wrote of the french chancellour deganai , ( one qui per omnes aetatis progressus totidem honorum civilium gradus suopte nixu , nullo manum porrigente scandens , non antequam ad culmen honorum evasit , scandendi finem fecit , ut non fortunae beneficio , sed suo merito pervenisse eo credi possit , cujus ea vis suisse ingenii atque animi cernitur , ut quocunque loco natus esset , in quodcunque tempus incidisset , fortunam ipse sibi facturus videretur ) but also what may as truely without degenerous flattery be added , that very happy hee , who has concentred in him so much of the eloquence of tully , the gravity of cato , the iustice of aristides , and the favour of mecaenas , as renders you meet to obtain the utmost honour , a sovereign master can reward a faithful and approved subject and servant with : which that your lordship may long deserve , and live to enjoy and to bless this nation and every worthy interest and concern in it , with the rayes and diffusions of that prudence , piety , and loyalty which are concluded eminent and exorient in you , is and shall be the earnest and sincere prayer of from my study in syon - colledge . june , . ( renowned sir ) your honours most humble servant edward waterhous . these commentaryes upon the chancellour fortescue's learned treatise de laudibus legum angliae , we conceive useful and fit to be published ; and therefore approve the printing thereof . may. . . robert foster . orlando bridgeman . matthew hale . thomas malet . robert hyde . edward atkyns . thomas twisden . thomas tyrrill . christopher turnor . samuel brown. wadham wyndham . an introduction to the commentary upon fortescue . before i treat on the text , i think it convenient to write somewhat concerning the parties introduced , and the manner of introducing them . the manner of their exhibition is by way of dialogue , a form very ancient and significant , whereby authours , as trismegistus , plato , plutarch , tully , athenaeus , aristophanes , lucian , and hundreds of others , brought in such persons , and fictions , as conduced to the various expression of their design , and the useful instruction of after-ages : and therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is the inward reasoning of the minde , whereby a man proposes things pro and con , as if really acted , is by ruffinian ranked inter schemata 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and he that skills this art aright , called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 so that dialogues are proper modes of speech and writing , whereby one and the same person both frames questions and answers , under names and notions of persons distinct and several . thus does our chancellour act both his own and the prince's part , laying down those rules , which experience had taught him , the best conduct and regulation of life , and in producing the prince as assenting to or dissenting from them , and so occasioning either his first adhesion to what he positively asserted , or his further addition of such proofs as should resolve the doubt , and make the dose prescribed palatable . so that in this text , by the help of dialogue , there is not onely a calm and pleasant delight for youth and novice-wits , but grave and pithy direction for the most accomplished mindes , who from it cannot but be enriched ; since , in lampridius his words of severus his lararium , it contains christum & abrahamum , orpheum & apollonium , matter of all variety and useful institution both in morals , prudentials , and what 's the most excellent in the knowledge of things heavenly . this for the dialogue . now of the persons in this dialogue , which are two , and those under a pair of illustrous names , the prince and the chancellour , or as here they ought rather to be marshalled , the chancellour and the prince . the one apt and willing to teach , the other prone and ready to learn ; which harmony cannot but produce a profitable and desired effect : for that heart is sure to be wise whose ear accepteth counsels , and who turneth not his eye from the precepts of wisdome . now though by the lawes of civility and nations , precedency be due to the person most dignified , and princes of the bloud have the preheminence of temporary officers , where their offices have not immediate representation of sovereigns , their masters ; yet i shall crave leave to treat first of the chancellour , and then of the prince : because in this dialogue , and as to this occasion , the chancellour is the first both ordine temporis , as the commencer of the discourse , and dignitate sermonis , as intending to distil into the youth of the represented prince what his grave experience observed necessary to make his life exemplary , and his government , when ever it should begin , successful . the chancellour i finde described three wayes , . by his name , fortescue . . by his office , chancellour . . by his personal dignity , miles grandaevus : which represents him a man doubly honoured , from his title miles , from his experience grandaevus ; for multitude of years teach wisdom . for his name fortescue 't is ancient and knightly , possibly derived à forti scuto , which some founder of the family was especially noted to have ; either his integrity which covered him from top to toe from the malice of his foes , who like cruel archers shot at him , though his shield , like joseph ' s bow , abode sure through the mighty god of his salvation , gen. . . or else from some more then ordinary valour , which the many blows received on his shield did amply express . i shall not here engage in the story of names , nor take upon me to dive into the well of science to fetch thence that , which we would call the truth of their original . if we understand a name , as logicians doe , for vox significativa secundum placitum ; then there is no certainty of names but uncertainty , what pleases the imposer , and others to give after his example : yet for the antiquity of names , we are to know that they are coaeval with time and things , for when god created things he named them according to the specifique nature of them , or according to some use or other purpose which they most tended to . after whose example the hebrews , and (a) adam especially gave names to all creatures , which names did evidence not onely their nature , but their subjection to man , as (b) bochartus , grotius , rivet , tostatus , and all the learned on genes . . agree . after the jews , the greeks followed , and the romans were so multiplicative of names , that they run them out into an infinity almost ; for beside their twenty eight appellative in (c) isidore , i finde (d) sigonius ( out of the ancient grammarians , sosipater , donatus , and diomedes ) numbring four sorts of names , one derived from dignity , as praenomen , being therefore prefixed because gentile , as publius ; the second of propriety declaring their nation and boud , nomen , as cornelius ; the third cognomen , being an additional adjoyned to their genile name for the greater state and equipage of it , as scipio ; the last agnomen , from some casual regard or remarkable action , as africanus : on all these he enlarges , and therefore to him i referr the reader . the poets also took the liberty to term the muses , camaenae , heliconiades , parnassides , and such other names to the number of thirty , and as many names had hercules also from the several fictions they had of him . so generally are names given ad placitum , that it is hard to limit names to natures or actions , when even fictive occasions have been parental of them , and that ubique locorum , no nation not taking the liberty so to doe . and at home to be ignorant of this would be our shame , when every dayes experience lessons it , and no man that is clerkly , but knows , that names are occasional , and varied as occasion serves , as master cambden , our learned antiquary , every where in his britannia acquaints us . amongst us therefore in england , we have onely two names usual , the christian given at the font , or baptistery , by the bishop or presbyter ordinarily , as john , james , robert , edward : and the sirname for distinction of the family from whence children descend . both these are usually expressed in deeds , grants , wills , and all other writings whatsoever , and when ever omitted , are either the fruits of negligence or worse ; for it leaves men in the dark , and subjects their actions to uncertainty , which alloyes the credit and grandeur of them . and for this cause ( if no other could be added ) men are obliged in justice to their fames , persons , posterities , and families , to own their individual persons by those names christian and familique , which they ordinarily go by ; since as many authours , not living to publish their pains , become unprofitable to the world , to enrich which they in their lives and studies were probably ambitious , as i think amongst many others , julius caesar scaliger was in that noble compilement of an hundred and ten books de originibus , which are lost : or else others come after the author's death , and thrust themselves into that praise which they never merited , and call themselves fathers of those speculations , which , if they could vindicate themselves by a reply , would disown their impudent , and but suposititious authours . i the rather observe this , because in the mention of my text-master , not onely mr. mulcaster a learned man , and a student in the law , terms him master fortescue knight : but also pitsaeus out of robert record writes him onely fortiscutus , de fortiscuto meo hoc dicam , quod & de thoma cranleio lelandu , refert , ut qui non modo ingenio , verum etiam ●alamo , utpote bonis instructus artibus , plurimum valuit : so that were not records and later authours more punctual , the worthy authour might have been less certain . but our late learned selden , who has led me the way to admire this authour , has particularly displayed this brave sage to be third son to henry fortescue son of sir john fortescue knight , captain of meaux and governour of bry in france under henry the fifth , which sir john was second son of william fortescue of wimeston in the county of devon , esquire ; so that our chancellour being immediate heir in the eighth descent of sir richard fortescue knight , who came out of normandy in the conquerours time , was generously descended by his father , and no less by his mother , who was a daughter and heir of beauchamp , his eldest brother was lord chief justice of ireland and dyed issueless , his second brother's posterity in the third descent divided themselves into two branches , one of which seated themselves at fawborn in essex , the other was seated by sir iohn fortescue , chancellour of the exchequer , and master of the court of wards , at salden in buckinghamshire , where now the heir of his family sir iohn fortescue resides , who very civilly and like a gentleman of honour , sensible of the service i aimed to doe to the memory of our chancellour his noble kinsman , presented me with this information from his pedigree , and with the picture of our chancellour which he caused to be cut to be hereunto prefixed ; which i purposely mention as my return of kindness and thanks to his care to right my noble chancellour , whose portraicture but for him had been unknown and unpublique . so that he was of a knightly race , and of so renowned a gravity , that he was chief justice to henry the sixth for the latter half of his reign ; and , as appears by records , that he might statum suum decentius manu-tenere , the then king gave him an annuity of an hundred and eighty marks out of the hamper , together with . s. . d. ½ percipiendum singulis annis ad festum natalis domini pro una roba , & furrura pro eadem erga idem festum ; & . s. . d. singulis annis ad festum pentecostes pro una roba , & linura pro eadem erga idem festum : so greatly did this worthy knight deserve of his prince , that he was thought the meet subject of all favours . for he well demeaned himself in all trusts , and as he lived no shame to his family , so dyed he not ashamed of fidelity to his sovereign ; for him he accompanyed in his misfortunes , and to him did he express the ardour of a just and ingenuous gratitude , in applying to his son and heir , whom he hoped should inherit his throne and dominions , such wholesom documents , as best fitted him to submit to god while a sufferer , and to rule in the place of god when he should restore him to his government , and subject his people and the guidance of them to him . thus much for our text-master's name , fortescue , now for his office , chancellour , a great office of trust and dignity , the prince's conscience in a subjects breast , the great iustice of the realm , in whom the oppressed ought to finde relief , and from whom the oppressour how great , how popular soever he be , ought to finde no favour . the trust of this officer in england , appears notably out of old ingulphus , where edward the elder , king of this land , expresses his minde to turktil , abbot of crowland , his chancellour in these words , ut quaecunqus negotia temporalia uel spiritualia , regis judicium expectabant , illius consilio & decreto , tam sanctae fidei , & tam profundi ingenii tenebatur , omnia tractarentur , & tractata irrefragabilem sententiam fortirentur . so ingulphus . the name cancellarius is variously understood , grammarians make it no more then a scribe or notary , as the domestici apparitores to great magistrates , or as praefectas praetorio . the verb cancello , whence cancellarius , signifying to deface , or amend , or cross out a thing written , having relation to a superiour commanding it , some have thought to import the office and officer to be subservient , and under some limitation : which possibly the lattices , which are called cancelli , whether in churches or in courts do further illustrate , for as in churches , chancels are immured in and severed from the navis ecclesiae , and the most noted members of the church sit there ; so in courts , the judges and officers of the courts fit within the barrs , when the counsellours , advocates , and pleaders , which budaeus calls cancellarios , and we call barristers , stand and plead at the barr. in the sacred empire the office of chancellour is as frequent as our steward in mannours , every province almost having its chancellour ; who is but a cypher to the great chancellour , whom budaeus defines , principis praesentis vicarius , & eo peregre prosecto , inter-rex quodammodo censendus ; and in another place , norma omnium jura reddentium , cujus ore facundi reges moribus nostris esse solent , cujus oculis uelut emissitiis , circumspicere omnia ac perlustrare creduntur : and therefore cassiodore writing to one of these chancellours , cajoles him thus , respice quo nomine nuncuperis , tenes quippe lucidas fores , claustra patentia , senestratas januas . this great officer , france , spain , denmark , sweden , scotland , preferr above all officers , and so does england too , and that anciently ; for fleta writing of the great officers of england , fayes thus of the lord chancellour , est inter caetera quoddam officium , quod dicitur cancellaria , quod viro provido & discreto , ut episcopo vel clerico magnae dignitatis debet committi , simul cum cura majoris sigilli regni , cujus substituti sunt cancellarii omnes in anglia , hybernia , wallia , & scotia , omnesque sigilli regis custodientes ubique , so fleta : sir henry spelman fayes much in few words , censorem non agnoscitpraeter regem , nec lites ei transmittant judices , sed inuitis ipsis saepe adimit , so he. and in all acts of parliament and instruments of state , the first person of trust is the lord chancellour , who is counted magistratuum omnium antistes ; by reason of which the chancellourship is called , summum bodie honorum fastigium , ultra quod nibil sper are licet homini quidem priuato & togato , quasique quod dam summa quedam ambientis animi solstitium . by which , and what to this purpose might abundantly be added , it appears , that this officer is the weightyest , and of greatest import of any in the nation , caput sanctioris interiorisque consilin , without which well-performed with trust and temper , oppression would call for divine vengeance , and injury not be more the siu then suffering of the nation : thus much for the office of the chancellour . though i judge in this high and supreme sense our authour bore the name , had not the actual power and office of lord chancellour in england ; true it is i finde him called (a) chancellour , yea summus angliae cancellarius by pitsaeus : yet i doubt the grant he had from henry the sixth was abroad , non nisi a uicto , & exulante apud scotos rege . the ius ad rem he had to testifie his prince's favour to him ; but the ius in re not effectually commencing , till his prince's suppressed right should invigorate , and evict his rival's power ; our chancellour cannot be accounted so plenary a chancellour as otherwise in his master's possession of the crown he would have been . though then he was not , as to the state and possession of that honourable and great trust here in england , so compleat and perfect a chancellour : yet chancellour to h. . of england he indisputably was , as also to his son prince edward , and in it behaved himself worthy the title of miles grandaevus . miles ] the highest rank of the lower nobility , an honour given to men of merit ( for miles quasi millesimus , a man , as we say , of a thousand ) who being an esquire before ( for sir edward cook sayes , if his authority be as good in heraldry as in law , no man was wont to be made a knight , but he that was first an esquire ) was rewarded by his prince , or some having sovereign commission for some notable performance done , or to be done . now this honour of knighthood was an encouragement to venture , the price of life , that which carries men sometimes beyond reason to hazard , and beyond conscience to detain what they get . olympiodorus tells us , that honorius the emperour rewarded valiant men with the name of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which i am apt to think was our knights bachilors : and the authour sayes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not onely citizens of rome were so rewarded , but strangers that deserved well in their warrs ; yea not onely did they give them the nobilitation of honour , making the alchimy of base bloud to become generous : but giving them badges of their honour answerable to those now in use . tacitus ( annal. lib. . ) tells us , that equestri dignitate donare , & annulis honorare , were promiscuous : and lampiridius , while he mentions severus his care to exclude infamous persons from the equestrian order , ne ordo equestris commacularetur , tells us also , and together with him suetonius , that rings , spurrs of gold , and crowns , with chariots of triumph , were the reward of brave spirits . as after-ages have had like occasion for men of courage , so to them have they been no less grateful ; nor have extemporary services gone without extemporary favour . honour being often given upon the ground where it has been won ; which makes the knight bachilor in his institution , a brave military-esteemed order . there is no man but must yield to time's sovereignty , and to that fate , that common opinion , and perhaps general errour introduces , that , that makes and marrs what , and who it pleases ; and though by its obstetrication many notable orders of knighthood are produced , as our order of saint george , and those other , toizon d' or , saint michael , saint iago , calatrava , saint esprit , the annuntiation , templars , knights of malta , alcantara , and montesio , or that of the teutonick order , though i say these , and the most of them , have been honoured by the pleasure of sovereigns with especial rayes of majesty , carrying their testimonial in their badg on the outward vest , which challenges all approachers to a more then ordinary respect : yet bare knighthood is not without somewhat of a dignified lustre , both as in antiquity and universality of allowance , it is most ubiquitive and embraced ; and our land and law account it a noble degree , and of years age here amongst us . since then i finde our authours make milites and principes a kinde of synonyma's , as brompton , no rude historian , does in his mention of david king of scots , his coming into england in king stephen's time , who was met by the northern english , in his words , ( milites & principes angliae boreales animosi , cum insigni comite albemarle , &c , viriliter restiterunt ; ) and since knights bachilors , made by any sovereign , are owned in all places as persons of honour , and their title less burthen to them in cases of wordly vicissitude then others by patent are , i account them both as to their rise , antiquity , and universal respect , not less nobilitated then becomes worthy men and merits . and such an one was our knight , who was chief iustice from the h. . to the h. . yea , for ought i know , to the h. . and after chancellour to his prince ; to which offices men seldom attain till they be aged and experienced , and till they be notable for counsel : therefore is it added here to our chancellour's remark , that he was grandaevus , a man not so much for action as counsel ; a knight , that like the old leontine gorgias , was famous in the very determination of his life , being able to say with him , quod voluptatis causa nibil mibi unquam facere permiserim ; and having gratified his passion with no abuse of his virtue . this , this is he that is called miles grandaevus : and well may he so be , for he was a grand-sier and oracle of counsel and conduct ; grandaevus , qui est provectioris aetatis , quasi grandis aevi senex , faith cerda : so virgil , et qu●e victus abas , & qu●e grand●evus alethes . so pliny , alios esse grandoevos , semper canos . yea grandoevus and longoevus the latines promiscuously used for old-age ; in that then any thing of more then ordinary remark was expressed by granditas , famous phrases , granditas verborum : so pliny writing of one rare for his time , sayes , non illi vis , non granditas , non subtilitas , non amaritudo , non dulcedo , non lepos defuit . by this attribution to our chancellour's we are told , that he was a man wise enough to make a prince happy ; a grandoevus who carried time's badg on his head , and time's glass in his hand ; that had outlived the passions and easinesses of heady , fierce , credulous youth ; and was grown as full of counsel as an age was of moments ; an helluo temporis , who had so measured time that it could hardly deceive him : this is he , who addresses himself in this dialogue to the prince , whom he much conversed with , and thereby may be presumed fully to understand . and indeed the great experience of this gentleman , whose former conversation with the youth of honour and note , ( to whom in times past he had read the civil and common laws ) gave him a more exact method of dealing with the young prince , then the bare principles of ● mother-wit , or the rude notions of a life of study would have suggested to him , since had he been morose and humerous , as most aged men and artists are , he would sooner have deterred from , then exhorted the prince to , the study of what he commended ; for great spirits are not easily cajoled into any thing by praetorian dictates , which smell more of a cynique severity then a generous candour : but when he , in his grave and sober address , complements the prince into a good opinion of him , how well received are all his documents ? prejudices against mens persons end in prejudices against their words and actions : and men of scandalous looks are seldom less then beams in the eyes of princes , who never look with pleasure upon figures which have torvous , rude , and discomposed visages . this the wise chancellour foreseeing , frames himself to such a courtly demeanour , as might not immerge his grave design in the danger of miscarriage ; but still preserve him regarded in his princely eyes , to which he ever desired to approve himself worthy : thus much for the chancellour , the first party in the dialogue . now of the prince , the second and more noble party . this prince was brave edward , son and heir to king henry the sixth of this land , by dame margaret daughter to reynard duke of anjou and berry , and king of ierusalem , to whom , in his father's misfortunes , this royal stripling , forced to fly into france , addressed , and from whom he doubted not to receive the courtesie of welcome , being under those inevitable pressures which attend things humane , and against the infelicities of which crowns cannot prescribe ; for could any father have merited his own establishment and his posterities blessing , surely the saintly father of this prince would have been the very hee : for he was a prince of remarkable virtue , a pattern of most perfect piety , upright , farr from fraud , wholly given to prayer , reading of scriptures , and alms-deeds ; of such integrity of life , that his confessor avowed , that for all the ten years he had confessed him , he had never committed any mortal sin ; so continent , that suspicion of unchaste life never touched him ; so full of charity , that he thought he did never enough for the church and the poor : who on dayes of devotion would wear sackcloth , and learned from his saviour to use no other communication then forsooth , forsooth ; yea , yea ; nay , nay ; yea so full of mercy , that he pardoned ( when for a time he was restored to his crown ) one , that thrust him into the side with a sword when he was prisoner in the tower. yet this prophetique king , who foretold from the face of henry the seventh , when but a childe , that he would be the person , to whom both we and our adversary , leaving the possession of all things , shall hereafter give room and place , could not by his kingly divination foresee , or by prudence obviate , and forestall his misfortune : but after almost one and thirty years quiet possession of his government , in the fifty second year of his age , lost his crown by battel gained against him , his adversaryes being fewer in number then his partizans ; and soon after his life was taken away by murther , and his corps buryed at chertsey , being carryed thither obscurely without priest or clerk , torch or taper , singing or saying , or any kinde of decent or christian solemnity . so departed this good king. and unfortunate was gallant prince edward his son , who as he was a young gentleman of faire complexion and comely person , so was he of a brave , bold , and daring courage , as appears by his valiant demeanour in tewksbury field , wherein he very princelyly manned a great and puissant army , expressing no remissness in any point of true and generous knighthood ; yet for all that endeavour lost the day , and became a prisoner to sir richard crofts who took him , and for a while kept him safe and secret : but whether the fear of edward the fourth , now victor , or the love of the reward promised to the discovery and delivery of him , wrought the resignation of him into fourth's hands , sure it is , rendred he was , and as sure that upon the rendition of him he was contrary to fourth's proclamation , slain . for when he came into fourth's presence , and was by him demanded how he durst so presumptuously enter into his realm with banner displayed , hee , the prince edward ( son to henry the sixth ) boldly answered , to recover my father's kingdom and heritage , from his father and grandfather to him , and from him after to me lineally descended ; at which words king edward the fourth said nothing , but with his band thrust him from him , or ( as some say ) struck him with his gantlet , whom incontinently george duke of clarence , richard duke of gloucester , thomas gray marquess of dorset , and william lord hasting , that stood by , suddenly murthered ; for which cruel act ( saith my author ) the most part of the doers in their latter dayes , drank of the like cup by the righteous iustice and due punishment of god. for the duke of clarence who murthered both henry the sixth and his son , this towardly prince , ( that our fortescue so loved and applyed himself to ) about the e. . was accused of treason , cast into the tower , and after drowned in a butt of malmsey : the duke of gloucester , after richard the third , was slain at besworthfield , his body being naked and despoiled to the skin , and nothing left about him , not so much as a clout to cover his privy members , being trussed behinde a pursivant of arms like an hogg or calf , his head and arms hanging on the one side of the horse and his leggs on the other side : the lord hastings was accused of treason by the duke of gloucester , when protector to edward the fifth , and beheaded : so that onely the marquess of dorset remained , which , what became of him i finde not ; but i believe he that shed the bloud of a prince had his own bloud shed , as the satisfaction of justice . for viler men never the world saw of nobles then were these peerlessly wicked p●ers who slew in cold bloud the son of a king , whom the king in being , promised to preserve : thus much for the story of the prince , the second person in the dialogue , who being the care and charge of our chancellour , and proving notably rational and manly , may be thought to appear such from the improvement of those principals and maxims which our fortescue , his father's and his chancellour , had communicated to him in this discourse , de laudibus legum angliae , which among many other treatises that he wrote , is accounted the most worthy , as being not onely the fruit of his solid law-judgement , which further appears in the year-books of h. . from the twentieth of his reign upward ; but of his various abilities in philologie and historique learning , as in what after followeth more at large appeareth . so endeth the introduction , which the authour publishes , as he does the subsequent commentaries , sub protestatione de addendo , retrahendo , corrigendo , poliendo , prout opus fuerit & consultius videbitur , deo clementissimè annuente . e.w. sr : iohn fortescu kt : lord cheife iustice & lord chancellor of england vnder king henry the sixth . portrait forte scutvm salvs dvcum blazon or coat of arms a commentary vpon fortescue de laudibus legum angliae . chap. i. gaudeo verò , serenissime princeps , super nobilissima indole tua . 't was the oratour's rule , long ago , to commend what he had to utter by apt prefaces ; oratoris est bene incipere : and the reason being to engage the auditours to attention , and thence to captivate them , the practice proved not onely appropriate to oratours , but to historians , and generally all writers . this method , prevailing with our chancellour in these words , makes me ready to write that of him , which seneca does of his fabian , that he seems to him , not so impetuously to multiply words , as weightily , and profitably to express his minde by them . so compt , so seasonable , so peculiar to his purpose is this courtly frontispiece , that therein our fortescue , like seneca's fabian , may well be written of , as non negligens in oratione , sed securus , and his book , to which this is the inlet , be termed electa verba , non captata , &c. choice words , not wrested , as the manner of men is , from their proper meaning , but significant to the purpose for which they are alleadged , and expressive of an high genius , and a magnanimous soul , that uttered them . for here the chancellour displays both the prince's endowments , and his own affection to the glory and extent of them ; that as , by the one , he appears to have tutoured a noble mind , so , in the other , does he insinuate such tuition to take the first fire from his example , who loved the virtue in others , which was first ingenerated in himself . this clause then , gaudeo , serenissime princeps , super nobilissima indole tua , relates both to the prince , and to the chancellour , in the expansion of it . to the prince , as , serenissimus , and nobilissimae indolis ; to the chancellour , as affected with , and rejoycing for the futurity of good to the nation , over which his accomplishment was to be influential . this is the purport of this introductional artifice , which i the rather touch upon , because it is a course both christian , and artly , not to prejudicate our success by rude prefaces ; but to make our ends on men in honest ways , through the mediation of favour , honestly begg'd , and readily , with consent of those we ask it of , obtained . and , because the cause preceeds the effect in nature's order , and it will become us to treat of the root , before of the fruit , the prince's perfections shall preceed the chancellour's affection to him for them , even in our comment . the prince is represented first , as serenissimus . then , as nobilissima indolis . serénissimus . antiently emperours and princes were pleased to be called by names of singular beneficence ; pii , clementes , mansueti , tranquilli , sereni , felices : but , of late , they have assumed superlatives to their condecoration , so that not onely iupiter had the name of optimus maximus , but all supremes are now represented by superlative expressions , because they challenge sole power within their dominions . hence comes it to pass , that though princes do communicate many attributes of theirs to men of virtue , and eminency ( as to patricians , senatours , and ministers of learning , and state ) such as are the titles of illustres , spectabiles , nobiles , clarissimi , perfectissimi , ( of which pancirol gives us a particular accompt ) yet the title of serenissimus , as incommunicable , princes have reserved to themselves , and to such have wise men chiefly , if not onely , given it . thus of old did saint leo term the emperour leo , to whom he wrote , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to our most glorious , and most serene son , leo the emperour : and that , because serenity in a prince is that temperament , which keeps him aequilibrious , and properly qualified to rule , and all the concomitants to it . and therefore though herodian , to flatter a vile commodus , may call him nobilissimum imperatorem , and licinius valerianus may , because none others will , give himself that title ; yet none deserves the title of serenissimus , but he , that , in lactantius his words , in opere misericordiae largiter fecerit , &c. he that is merciful , generous , and ha's expressed in his life , and actions , perfect virtue . indeed serenity being a supralunary may well be accounted more then ordinarily of : nor is it so much a courtesie , as a due debt , and homage to serenity , to admire it . the catholique rational nature conspires to pay a devoir to this deity for the diffusion of its quality to every thing . serenity is that temper , that gives opportunity to all virtue ; and then is the season to do worthily , when there is no cloud , no storm of obliquity in the minde , but all the region of it is clear : therefore all serene things were accounted excellent , aestas serena , coelum serenum , color serenus , lux serena , animus serenus , doctrina serena , frons tranquilla , & serena , yea , vitam serenare , and domum largo igne serenare , are frequent in all good authours to express the greatest pleasure , content , and comeliness by . and therefore the positive being so significant , its superlative must have a supereminency of sense , reflecting most intense lustres on a prince , and prolating him , not as onely disposed to , but accomplished with the liberallest proportions of humane capacity , whereby lofty nature is reduced to such an harmonious mansuetude , as makes majesty comply with meaness , and forbear those superb and monstrous titles , which both intimidate men , and intrench on god's patience provoked by the arrogancy of them . for though attila may glory in the title of ira dei ego sum , & orbis vastitas , i am the anger of god , and the world's devastation , and abbas the persian king vapour , that he is king of kings , and sultanies , lord of the imperious mountain of ararat , commander of all creatures from the river corazon to the gulph of persia , governour of all sultans , emperour of musselmen , bud of honour , mirrour of virtue , rose of delight ; while sapores vaunts himself to be king of kings , equal to the stars , and brother to the sun and moon ; and cozroes will be lord of lords , prince of peace , salvation of men , the great conquerour rising with the sun , giving lustre to the night : notwithstanding the great cham give out , he is the son of the highest god , and quintessence of the purest spirits ; and prester iohn challenges to himself , to be head of the church , the favourite of god , the pillar of faith : yet all these , and such other rhodomontadoes , are but the lunacies of deluding and deluded opination , the metretricious suggestions of light , and loathsome eccentricity , privations of that serenity , which keeps the minde in a royal mansuetude , and inclines it to a fertile , and frequent humanity , which nerva probably foreseeing in trajan's temper , rewarded with adoption of him to the empire : for , though trajan were a spaniard , and neither an italian , nor italiz'd , yea , though nerva himself had many kindred , and none of strange origen were ever emperour before trajan , yet 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he did not prefer the advancement of his kindred above the good of his government , trajan , he chuses . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. making virtue a qualification to government , rather then country . and accordingly he approved himself : for no sooner was he in the throne , but he gave the senate assurance , that he should disturb , or put to death no good man , which exemption of good men from fear , and danger , persisted in by his other supernumerary largesses , of which that was one openly he honoured , and preferred all good , and iust men , made all men account him an incarnate god , and possessed them with such eulogick gratitude , as would have tempted any minde , but that of serenity , to abate of its condescension , and to affect distance . but the gentleness of his minde kept him in the merit of that praise , which herodian gives to marcus the emperour , father of commodus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. that he did not onely profess in word , but practised in deed the gravity and continence of perfect virtue . in short , what this serenissimus in a prince is , the lives , and carriages of five of our late english monarchs , four of which are , i believe , rewarded with the glories of heaven for it , and the last yet is , and i incessantly pray long may be , the living instance of it , will beyond all the oratory of words , and sculpture of the most immortal and transcendent pen , discover , and confirm . our chancellour then meant much by serenissime princeps , yet not all that he had to bless god for in his matchless pupil . to be of a towardly and pliant nature , to be a subactum solum to virtuous implantations , was a blessing , which the rough and sanguineous truculencies of some natures abhorr : but to have nobilissimam indolem , a fertility , and profuseness of addiction to good ; to have , as it were , good connatural to , and radicated in the very free-hold , so that it is , as it were , inseparable from it , this is a noble second to the former , nay it is the parent of it , at least the sine qua non : for such most an end princes prove , as they are in the oar of their natural temper . hence the chancellour expresses the accomplishment of the prince by indoles nobilissima , as the significatio futurae probitatis ; so tully uses the word , caesaris verò pueri mirifica indoles virtutis . so de finibus . and he commends lentulus as one eximiâ spe , summae virtutis adolescentem . and seneca mentions tantae indolis iuvenem , qui citò pater maritus , citò sacerdos , &c. yea not onely in children is indoles nobilissima a notable comfort , but in grown men in veris signum est praesentis virtutis , so tully : faec exim fuisse in isto c. laelii m. catonis materiam & indolem ; and pliny says , primum nonnullis indolis dedi specimen ; and aulus gellius mentions laetae indolis adolescens , lib. . cap. . 't were endless to multiply instances out of authours to this purpose : that only , which the phrase imports , is a natural edg both to good , or evil ; for indoles barely is applicable to either : for though livy writing of lavinia , understands her indoles to be generositas quaedam virtutis atque animi ( ab vrbe . ) yet , when he uses the word of hannibal , he makes it to evil as well as to good , cum hac indole virtutum ae vitiorum sub asdrubale meruit . and therefore the nobilissima here is not onely a complement , but a characteristical discrimination of the prince's propension to good , as his choice , and that which god had so tinctured his temper with that he could as soon cease to be , as not to be nobly virtuous . indolem valent , quantum terrae proprietas , & coeli , sub quo aluntur . and hence is it , that as curious and thrifty planters , that delight in choice fruit , do not onely preserve choice seed , and choice grafts , but also sow and plant them in proper soils ; that so their natural indoles may have no alloies , and debasements , but additions from the position of their fixation : so do prudent and diligent parents , and supervisours express their affection and judgment in the nurture of youth to virtue , that , their natural towardness not being nipped and blunted , they may in time come to a virtuous tapering , and to that proportion of plenitude , which their natures and opportunities capacitate them to . which connaturality of the fruits of education with the impressions of their birth make virtue so habitual to them , that they may well be called theirs as ( by divine concession ) they are the temporary possessours of them ; since by their coalition with them , and their appropriation of them , as their peculiar treasure , they are onely and properly termed serenissimi and nobilissimae indolis . for though titles , and terrour may cause ascriptions of perfection to men , who otherwise as they deserve them not , so would not obtain them , shews of virtue , or claims to the credit of her from the real alliances of her , to their ancestours , is not currant coyn to purchase the prince's character here . for those remote and dubious titles , though they derive faint and refracted lines from the centre of merit , yet are but the by-blows of its excellent heroickness . they are as pompey's cook somewhat like him , but not very pompey the great : they are as scipio's slaughter-man , not indeed famous africk's master . they are spintheris the despicable player , not publius lentulus the grave senatour . they are virtutis umbrae , little conducing to princes praise , but rather the vizzard of such deformities as seek , and take sanctuary and relief from creditable appearances . that which onely is worthy princes , is propriis gemmis coruscare , to see that the virtue they pretend to , be vera , non fucata ; propria , non aliena . for that the chancellour here admires the prince , as one ●hat was worthy his descent , and degree , and thereupon he assures him the serenity of his mind consorted with that noble towardliness , which he undoubtedly discovered to be his own , unstudied , unaffected , naturally his , had so affected him with joy , that he could not but declare his thoughts with gratitude to god the giver , and with admiration of him the subject of so much and so rare endowment , gaudeo , serenissime princeps . this the chancellour adds , to shew the sense wise men have of princes worthinesses : for since they are the great examples of their people , and have , as it were , the power of making them good , or bad ; the preponderation of them to virtue , which will be the ●urn of the common-scale , and make it incline to the right , cannot but highly rejoyce those , that rightly conceive it . augustus was a brave prince , yet suetonius writes , he never commended his sons to the people's love nisi cum hac exceptione , si merebuntur , &c. but with this proviso , that they deserved , professing , that honour ought to be the reward of virtue , and not the companion only of great birth , and high blood. for well he knew , that if the wisdom and calmness of their minds did not balance , and overbear their passions , and make them tenable against temptation and the fierce and too often prevalent sieges of it , they would do by their people , as that general in cedrenus wrote he would do , in case their good and his will were competitours , aut mundus pro imperatore &c. either the world shall acknowledg me an emperour , or i will make my self ●o , whether they will or no. or , as paul the fourth , who was so great a self-admirer , that he blushed not to say , that either he would have his will , or he would set the world on fire , and go up in the flame thereof . but rather as d' avila represents mounsieur le hospital the french-chancellour , not like the duke of guise all for warr , but endeavouring to compose , and sedate differences , and to reconcile parties , though he held the reproach of a soft gown-man for so doing ; and henry the third of france , who was wont to say , that by civil , intestine wars religion it self , which received its nourishment from peace , was much impaired , and so that , instead of gaining those souls that were gone astray , by violent means , they did endanger the loss of those , that were most zealous in the truth : and therefore that of the moralists concerning caesar is most true , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , no man , but caesar , that is in his right wits , and is overpowred by ambition , will come to the common-wealth to disturb it for his own radication , and establishment . for ingenuity , that perswades a man not to better himself as chrysippus did by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by topsyturvying all men , and all things , but keeps him in the golden mean of contentation , especially such a jewel in the mind of princes must needs exhilarate all men , chiefly those , that have had the honour of their nurture , and tuition , and have been near them in attendance , and affection ; and such the chancellour having , i conjecture , been , alledges his gaudeo upon the view of such imbibings , and so pleasing probable fruits arising from it . gaudeo , serenissime , &c. as the prince's virtue gave , so the chancellour's love took , the occasion of joy at the prince's proficiency . for though joy be the proper act of the soul's exultation within it self , gaudere significat taentam apud se voluptatem sentire , neque vulgò proferre gaudii notas , in regard whereof triumphare , & gaudere is joyned by tully in lib. . ad atticum , and seneca censure him as imprudent , qui adventitio laetus est ; adding the reason , exibit gaudium , quod intravit , &c. the ioy that is occasional onely , and rises from imperfect virtues , goes , as it comes , but that , which flows from a divine soul , conform to god , is constant , and solid , and encreaseth towards eternity . mihi crede , res severa est verum gandium , &c. believe me , true ioy is a serious thing : and so ep. . aliquid potius bonum mansurum circumspice , &c , look upon durable good , onely lasting ioy is to be attained by virtue , so ep. . est elatio animi suis bonis , viribúsque fidentis , and gaudium hoc non nascitur nisi ex virtutum conscientia ; so philo , whiles he calls joy 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , determines , ioy may be in no mind , but where grounds from virtue are , taking to himself , immortal delights . according to which , that expression of the blessed virgin , is emphatick , my soul doth magnify the lord , and my spirit rejoyceth in god , my saviour . i say , though to rejoyce be properly the product of our own good , and intern serenity , yet ha's it an extent also to that good , which we opinionate to be in any one , and for that are as much delighted , as if it were our own . quum ratione animus movetur , &c. when the mind is moved by reason , pleasingly , and unalterably , then is it partaker of joy . hereupon the chancellour reckoning upon the prince , as heir of the crown , and probable to be the monarch of this land , in whose excellent endowments , every particular in the nation , would proportionably to its capacity and concern , be blest , not onely excites others , but protests himself much pleased with , and refreshed by the hopes and assurances he had of futurities blessing , in his excellent and royal inclination ; and this is the cause of his gaudeo . videns quantâ aviditate tu militares amplecteris actus . it should seem the visible application of this prince to manly and martial experiments had been earnestly look'd into by the chancellour ; who , not like a parasite of the court , or a mendicant at the trencher , deluded the prince into a belief , that vice was virtue and haughtiness of mind , princely towardlyness : but like a man of weight , worth , and integrity , whose conscience led him to enter common with his prince in hazard , and whose heart hoped god would give hisdead and ( as it were ) buried right a glorious resurrection in his future prosperity ( which this his addiction to chivalry , did in a kind fore-speak ) annexes this videns quantâ , &c. as the rise of his gaudeo serenissime . princeps de nobilissima indole tua . videns , men of honour love the warranties of honour , reason , and piety for their applauses , not daring to gratifie power and greatness to the disservice of truth and fidelity . he that ha's so debauched a soul to put his probatum est to an uncertainty , may , ere long , be accounted fit for no honour above a knightship of the post. but he that says no more then he sees , knows , and believes , deserves the credit of a faithful witness . quantâ aviditate militares tu amplecteris actus . this is the materia prima , of which the prince's virtue , as it is here by the chancellour rejoyced in , consisteth ; and it directs us to two observables . first , principis electio , that which the prince chose to be the companion of his time , and the dial , upon which , by the shadow and reflex of his present inclination , they should judge the height of their after-hopes from him . and those were no nugatory trifles , no effeminate lubricities , no childish refuse trumperies , but the great and peculiar glories and ornaments of princes , militares actus . secondly , affectus principis erga res electas , he prosecuted them so chosen with no indifferent , remiss , and tepid love , but with a generous insatiety , with the keen appetition of impatience , and prodigal intentness . quantâ aviditate militares tu amplecteris actus . his choice was optimorum ; for even nature lessons to this in all the emanations of her implants ; no creature , but by its sensual propension is vehiculated to what it apprehends best for its conservation , and least contrary to its being yea , take away those impediments to choice ( vis major & metus , which seneca says , do ex necessitate tollere arbitrium ) and propose to their sense things , they shall decline what they apprehend injurious to them , and accept what is pleasing . and for men , they are usually estimated by their company , pleasures , and professed engagements . and such is the rate of their exchange , in the reputation of men , as their judgment is either dignified , or depreciated in its choice : moses lost himself almost in the peoples eyes , for chusing a zipporah to breed upon ; so course a ground they thought unmeet to draw a fair-figur'd posterity upon ; especially princes , as they are altioris molis , and are the great sea-marks , by which subjects are directed , are to avoid indiligence therein : neglects in them are ominous , and of tragick interpretation , because their duty being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to adorn their charges by actions kingly ; their torpor is the hazard of their government . therefore homer bringing in agamemnon , when he says , all his companions in war were full of sleep , and took their rest , singles out him , as more concerned to wake , because he had the care and conservation of all upon him . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . care kept king agamemnon broad awake , no sleep , his charge in danger , could he take . hence is it , that all princes have characters according to these first draughts of their choices , by which the● are understood to be legible in all their after portraictures . nero , that delighted in butchery , and in converse with mummers and juglers , was presaged to be a rude monster : as was trajan , that was pleased onely with worthy men , and graceful manners , a virtuous prince . the choice then of our prince being actus militares , to inure himself to hardship , and to accustome his body to toil , to fix his mind against fear , and thence to chase all touches of effeminacy ; to propound to himself certain hazard , and uncertain victory ; by hope to provoke attempts , and by courage ( with god's blessing to force success : this choice of his is the merit of true nobility , which marius in salust expressed thus . i account ( said he ) nature equally the mother of all men , and that the bravest spirits are in her heraldry the noblest , and most to be honoured : that nobility began in virtue ; and therefore , though i can shew no statues of my triumphing ancestry ; yet if my military habiliments creditably managed by me , and the wounds received on my body for my countrey , might be instead of valour , and ancestry , then i have wherewithall to render me n●ble ; thus marius , and that most wisely : for martial addictions , where mansueted and tempered by ingenuous and civil virtues , steal into the mind informidable resolutions , and instruct , by observing the experiments of past and present , men at arms to learn the method of fighting , and the temper of bearing both loss and gain , since the issues of war , as all other things , are in the hands of the almighty , who disposes them as he pleases ; and often it is seen , that as the race is not to the swift , so not the battle to the strong ; nor are always men fortunate , as they well design , and dexterously manage their designs . marshal memorancy was a brave man , and commanded in chief the forces of france many years ; yet in all his enterprises he came not off , but either a loser , grievously wounded , or a prisoner : notwithstanding which secret pleasure of god , the best prescript to a prince's probable security is arms. and therefore , though true it be , that seneca long since writ to nero , errat , siquis existimat tutum esse regem ubi nihil à rege tutum est , securitas securitate mutua paciscendâ est , non opus est instruere in altum editas arces , nee in adscensum ardnos colles emunire , nec latera montium abscindere , multiplicibus se muribus turibúsque sepire , salvum regem in aperto clementia praestabit , unum est inexpugnabile munimentum amor civium . though instances there are of the oratories of princes , who by the cogencies of their wit , well and aptly uttered , have wrought subjects to despise death , to bring their dying rights to life again ; making them so keen and eager on fight , that they have gone pleasantly , and with triumph , to try their title by combats , and foughten fields : yet never did i read of any , that by brave words won field , without the second of brave action . for the personal valour of commanders makes souldiers of raw , and bold of cowardly men ; when timerous and flying leaders spirit their foes , and discomfit their parties . and princes , whose design it is , to appear like caesar , with their veni , vidi , vici , and either to lose life , or obtain victory over their oppositions , in a just cause , and notable quarrel , resolve with our king hen. th . rather to be left dead carrions on the cold earth , then to be free prisoners in ladies chambers . omitting no accomplishment , that time and affairs opportune them to . for that prince , who is not valiant , will never be accounted wise , since wisdom consists in obtaining what we affect , and in preserving such beloved attainments of ours , which valour well managed , and spritefully expressed , chiefly conduceth to . and therefore that precept of pythagoras , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not to taste of those things that have a black tail , plutarch rightly understands to be a command to avoid men of dissolute souls , and infamous lives , was very good , because they taint those they breath upon , from the corrupted lungs of their putrid principles , and practises . and thence is it a choice piece of wisdom , as to chuse the best and most every way endowed men , to train up princes in youth : of which plato in . de repub. & lib. . & . de legibus arist. lib. . politic. lib. . agellius lib. . c. . and , according to which , charles the great educated his children , sons and daughters , as probus informs us ; and as theodosius did arcadius , and honorius , under arsenius ; and constantine , did his sons , euseb. lib. . de vit● constantini c. , . and , as trajan was by his master plutarch , who writ to him that golden book , de liberorum institutione . and alexander was by aristotle , and all the most excellent presidents to the world of virtuous majesty have been . i say , as it ha's been their wisdom , to chuse the choice of men for their tutors , so have those tutors been conducted to their education , from the observance of their natural tempers ; and , by both , animating them to good , and deterring them from evil , as they saw they were more or less addicted to them ; especially when their charges are of such as portius cato was , i am acri ingenio ut ipsi sibi fortunam fecisse videatur , &c. who was of so sharp a wit , that he seem'd to carry his good fortune in his promptness ; no art either publick or private wanting in him , so great was his eloquence in speech , and bravery in action , that it purveyed for him all his after glory . in short , so rare was he in all parts of virtue , that he seemed to do every thing as if he had been born only to that end , & yet was all he wished to be to a matchless perfection where such princes are , they must be tended specially that their vestal fire extinguish not , that they turn not to serpents hissing , which marrs the delight of their virtues harmony . their minds must be kept ever stirring , that through inoccupancy of virtue they constagnat not vice , which being habituated to men is not easily rooted out of them . hereupon the wisdom of these architects is to raise aroof of action upon the foundation of sober virtue ; to keep the mind within bounds , and to spend its volatility on corporal exercises , which are of virile invention and performance . for the tutors and directors of princes educations , after they have seasoned their charges with letters , and secured their breedings and younger years from the censures of illiterateness , prompt them to corporal exercises , and athletary activities , such as are skill in handling the weapon , for defence of their persons ( a very great ornament and security to any man of power and honour to excel in ) not that he shall need either to provoke , or be provoked the more by it : for his passion ha's no stimulation thereby , nor will his skill betray him to pride over others , because true science abhors boast , but rather keeps it self latent against a time of need , and proves a reserve to his security against secret attempts , and false treacheries , which seldom are acted upon princes of spirit , and corporal manlyness . next to this , tutors present to princes riding of the great horse , and the right managing of them in all the parts and punctilio's of cavalry ; then they allow justs , barriers , tournaments , tiltings , or such other manly recreations , as are fashionable to greatness in the age of their life and breeding . and they at last allow them to try the proof of all these preparatory inductions by field-service ; that is , such venture , as may display boldness , and bravery ; but be as little in the eye and road of danger as may be : their design being not to end , but to enamel his life with all those embossings , which illustrate the fame , and aggrandith the military virtue of arising majesty . for wontedness , and assuscency to any thing connaturalizes it , which pythagoras gave us long ago the rule of , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . to chuse the best way of life and custom , will make it delightful to us . the experience of which , even in military affairs , rules the practise of great commanders ( not ordinarily to draw raw souldiers , and fresh men into present service , but to put them into garisons to be trained , and their best men to draw out , that their novices , by the sport that now and then they have , may be gradually perfected in the habit of couragious boldness . those actus militaris then that our prince here do's embrace , may be thought those onely ; that are the recreations and expressions of their spirits in times of peace . and to these he is said to be not ably addicted , and affectionately acted . as well he chose , so to his choice , does he resolutely adhere ; and this displays both judgment and constancy . a good choice , and a grave mind , not to waver in , or be cold to it : levity is one of the alloys and exuberances of youth , and that which ha's so great a party in those early flowers ; that though they smell sweet , and come timely , yet they are soon gone . and therefore , the prince young and wise , in age probable to chuse and chuse again ; yet fixed to his first worthy choice , deserves well the praise of his tutor while he lives ; as did such another babe of grace and greatness , iames the son to the king of scots ; of whom erasmus gives us almost an incredible accompt , concluding , saetis demum dolori nostro , satis discipuli memoriae , deserve of him . for the prince here is commended not onely amplecti , which argues endearedness , but magnâ aviditate ; for so the quant à imports : 't is a note of magnitude and hyperbolicism . aviditas argues such a love , as obcaecates , à non videndo propter nimiam cupiditatem , saith festus , a kind of fury , that carries a man in a whirl-wind , sicut amens qui mentem suam non habet : such an insatiety , as is in nature's hunger , and womens longing : such as tully reports of cato , erat enim , ùt scis , in c● inexhaust a aviditas legendi nec saetiari poterat : and , in pliny , nothing thing is more frequent then avidit as diripiendi lib. . c. . avidit as ad aliquem faciendum , lib. . c. . aviditas ad cibos , lib. . c. . aviditas faeminarum , lib. . c. . yea , tullie's infinita aviditas gloriae , and his aviditate inflammatus , which he mentions , lib. . offic . c. . all these , and such like expressions in authours , makes the chancellour's character of the prince by this quantae aviditas , to be importunate and implacable , like that of cato , who confessed , graecas literas senex didici , &c. i learned greek in my old age , and was so eager after it , as if i should never be satisfied with any attainment beneath the perfection of it . there was much then of freeness and irritation in the desire of the prince towards arms ; so that his mind all on fire with love to , and valuation of it , testified itself , by hasting to , and embracing the theory , as inlet to the practise of it . for so amplecti signifies here . and not onely cognoscere & intelligere , but vehementer amare ; so tully , nec quod jus civili ( crasse ) tam vehementer es amplexus : so in salust . imperator omnes ferè res asperas per iugurtham agere in amicis habere magis magisque e●m in dies amplecti . so tully , tanto amore suas possessiones amplexi tenehant , ut ab his membra divelli citius ac distrahi posse diceres . so that all the result from this of the chancellour in portraying the prince to be martial , will amount to this , that use and custom made it not onely affected by , but connatural to him : so that as aristides could sooner not be , then not be just , citiùs solem è coelo , &c. sooner the sun could be displaced the firmament , then aristides be removed from his integrity . so our prince could as soon deny his stomach food , or his eye pleasure , as his delight martial exercise . and hence was it , that as to shew his forwardness , avidit as & amplecteris is asserted : so to evidence him more led by sense and passion , then reason and speculation , this delight of his is rendered by militares actus . for youth is more pleased with corporal traverses , then mental agitations ; those are introduced , when the senses exterior are glutted , and the wild oats are fowed , as we say ; but bodily feats , as they are in youth most seasonable and fragrant , so are they most delighted to express them , because sense pleases it self in its perfectest model , and vivid'st representation , which is that of the body in youth , when the sails of the skin are filled , and the veins reaking hot with lively blood , and the joynts unctiously motive with metaled youth , and the spirits energically diffusive , when the circulation is uninterrupted , and the violets scent in the breath , the roses colour in the cheek , and on the lip , the lilies whiteness on the skin , when the plushy mantle on the head , and the succulent moysture of the bones , rouse up to agility , and perform creditably their undertakings . then , then , are men chiefly delighted in , and carried to actus militares . yea , then is the impression of custome more durable when it 's fixed on nature's marble and adamant , which was the reason that solomon advises , to teach a child in the trade of his youth , that he may not depart from it in age ; it being not often seen that vertuous youths degenerate into vicious old-ages . hence considering the chancellour presents the prince as so earlily generous , and so towardly inclined in his first dawning as it were . i cannot but greatly admire him , and believe the chancellour by these representations of him was much a votary to him . for , since there is nothing amiable in man , but virtue , because that has abundant remains of the image god , and the primeve sculpture of omnipotence , so without that is there nothing less estimable then he in his degradation . and this was the sense of david . man in honour abode not , but became as the beast that perished ; yea , the heathen agamemnon when by the sycionian he was presented with the famous mare aetha , on purpose that he might be excused from war , accepted her 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. thinking a brave spirited beast more valuable then a base spirited man. and hereupon , when princes in their ascents to manhood , choose honest delights , and honourable loves , they are highly to be blazoned for remarkable , and almost non-suchess , the tendencies of youthly greatness , being mostly to lubricity and effeminateness ; the triflings of time , the debaucheries of minds , the enervations of strength , the neglects of affairs , both of peace and war , these are too often the infelicities , and shipwracks of princes as well as meaner men . thus was edward the fifth of this land made unhappy by fond delight . and if youth abstain here , there is another snare that is apt to be caught by ; desire of gain , though by indirect means , and satisfaction of anger , though by oppression and blood . the duke of guise , to maintain his party with pay , seised on church ▪ chalices , and coyned them . * henry the third of france , when he had caused the duke of guise to be murthered , came in all haste to the queen-mother to tell her , he had made himself king of france , now he had slain the king of paris : but she replyed , you have made the duke of guise to be slain , god grant you be not now made king of nothing . yea , so long as adam gordon , huntley's deputy in the north of scotland , stands on record for abusing the queen's authority , in revenging his family on the forbes's family , their antagonists , one hundred and twenty seven of whom he slew , and twenty seven burn'd alive in favoy-house ; there will never want an horrid instance of the danger of power in a vitious mind . give me a prince like malcolm the third , king of scotland , who can defie a conspirator , and bravely challenge him ; yea , upon his sound repentance heartily forgive him . such princes england ha's mostly had , now ha's to a miracle beyond compare , and i hope ever will have such , who have been , are , and will be nobly couragious , but not bloody ; god and the king may , and do shew mercy from their own innate essential clemency , but they are afflictive to men not without the aid of others , whom they consult with ; when they send their thunder-bolts , and are by their councellours often so allayed , that their anger proves favour , faith seneca . quia iovem , id est , regem prodesse etiam solum oportet , &c. such magnanimity , such virtuous loftiness of mind , will keep all maggots of corrosion and putrefaction off , admit no suggestions of vice to familiarity and audience , but abhor the promoters and solicitations to them , as valiant grillon did , who being captain of h. 's . guard , and commanded by him to kill the duke of guise , honestly and religiously replyed , sir , i am really your majestie 's most humble and devoted servant , but i make profession to be a souldier , and a cavalier . if you please to command me to challenge the duke of guise , and fight with him hand to hand , i am ready at this instant to lay down my life for your service : but that i should serve for an executioner , before your majestie 's iustice commands him to die , is a thing suits not with one of my condition ; nor will i ever do it whilst i live : thus he . so dangerous a thing it is to give way to any evil , that , a battery and breach being once made upon integrity , all the residue and remain of virtue is in peril . well may the prince then here be a person of wonder , and of the chancellour's love , who gives up himself to such innocent and graceful recreations , as are purely princely , and become him as peculiarly such : for so it follows , convenit namque tibite taliter delectari . convenit namque tibi te taliter delectari . this is added , to carry the prince's praise to its true merit ; 't was not onely a good , but a graceful choice , that he made , proportionable to his quality , and station ; his delights were not like the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , those gardens of the poets fiction , altogether vain and profitless , in quibus semina &c. in which seeds of virtue will no better thrive , then seeds of plants strewed up and down in an earthen pot ; as erasmus his words , are no such delights did the prince fix upon : for then that might be said of him , which was said of calvisius sabinus in seneca nunquam vidi hominem beatum indecentius , n●ver did i see a man less become his happy condition then sabinus did . the prince , like him would have been great and rich ; but in his demeanour not admirable , no nor imitable , as neither was he ; yea , had the prince so declined and inconsidered himself , that might have been said to him in the after-time of his life , which seneca writes to his friend , numera annos tuos , & pudebit eadem velle , quae volueras puer eademparare : consider thy years , and you will be ashamed when a man , what ye loved and gloried in , when a child . but when he culls out to his esteem such recreations as are princely and virile , well may he be applauded with a convenit . indeed delights are common to all creatures , and the chief external good both of their desire and endeavour ; and when the object of them is adequate and regular , when it ha's no inconformity to the agent , that acts to , and is acted by them , all is well , and like to be fortunate with us . for since there is a kind of deity in the addiction , and genius , and the naturality of mens propensions do mostly presage their excellency , and preoccupy their conquest of the difficulties they encounter with , according to that of heraclitus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and according to that , which ammian marcellinus makes good in all famous persons , who have been excited to do what they worthily did , by it , lib. . p. . it conduces much to a good issue , that we mismatch not our genius , by any base consort , or plebeian mate of converse and inteurness . alcmon in plutarch tells us , fortune is the sister 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , of good education , great perswasion , and exact providence , and circumspection . hence do the current of authours erect the genius and ducts of men , as mints and forges of their fortunes , good or bad . the comoedian ha's it , sapiens ipse sibi faciet fortunam ; and portius cato is by livy sabellicus , and budaeus made one , qui quocanque loco natus , &c. who would make every countrey his , and every condition he was fit for come to him , and force their courtesie upon him . indeed it is not always the reward of virtue to succeed ; the lines of worthy men do not always fall to them in fair places , nor have they always goodly heritages : yet pacatius stands to it , sua cuique prudentia deus ; and erasmus ha's collected sundry instances to confirm it : and mostly we see , that men are happy or miserable , as their minds are narrow or great , active or supine , industrious or negligent , prudent or temerarious : yea , in princes and great men , there is no choice so noble , as that of couragious virtue , that draws forth the mind to bounty , benignity , and a through closure with every overture of well-doing ; nor is it possible narrow thoughts should cohabite where true valour is . men of honour , who look upon themselves as born and bred for publique good , are acted by principles of suavity and munificence , consulting no accumulation to themselves but fame , no practice on men but that of justice and obligement ; their delights are to be patrons of virtue , and store-houses of munificence . this the duke of guise made good to his enemy , the prince of coude ; for having taken him at blainville , he so gloriously treated him , that they both supped at table together that night , and after lay together in the same bed . so did charles the fifth emperour do by francis the first of herbert's hist. h. . yea , it is against the hair , nay against their nature , for them to be forced otherwise , though by reason of state , or necessity of affairs . henry wardlow , lord bishop of st. andrews , had so noble a nature , that he thought no cost too great for a brave work ; one day the major domûs complained of the great number of comers , who expected , and had entertainment at his house , desiring him for the ease of all his servants , to make a bill of houshold , that they might know who were to be served . he condescended , and when his secretary was called to set down the names of the houshold , being asked whom he would first name , answered , angus and fife , two large counties . the secretary from this understood his pleasure , and desisted . all this i instance in , to shew that what men chuse as their delights , are so commensurate to the addictions of their souls , that the one is discernable by the other . our prince then by chusing militares actus , as the subject of his embraces , may very fitly be saluted with a convenit tibi , princeps , taliter delectari . for he , in thus doing , answered all , that could be expected from him , ratione famae , familiae , fortunae , potentia , all which were either hopeless , or hopeful , as he proceeded to the improvement of this choice . for if the prince fit still , and cry leo in via , fearing to hazard his person to gain his right , he both contemns his government , and animates rebellion , upon hope of no disturbance for recovering it : and the infamy of such pusillanimity , being a hell on earth , makes a brave mind kindle , and engage to recuperate , which if god pleases not to permit , yet he dies with the same of an honest valour , and a just resentment of his injured estate , and fells the fine and recovery against him at the dearest rate , resolution enraged , and desire doubly edg'd , can part with it at . famous momerancy in anno , fighting against the hugonots army , was boldly charged by robert steward , momera●sy asked steward , whether he knew him , or not ? yes , quoth steward , i do ; and because i do , i present thee with this , and shot him in the shoulder , so that he fell , but as he was falling , he threw his sword , the blade whereof he still held in his hand , though broken , with such a violence at steward's face , and then he was near eighty years old , that he beat out three of steward's teeth , brake his jaw-bone , and laid him by him on the ground for dead ; which shews , that men do fell their ruines , as dear as love and rage can make them to their ruiners . nedum quia miles es , sed quia rex futurus . this is added , to shew , that titles imploy cares of corresponding to them in actions of congruity . magnos magna decent . this alexander understanding from his master aristotle , or his mother - genius , replyed to one that asked him , if he would run at the olympick games : do any kings run there ? implying , that men must do onely those actions , that are semblable to themselves , the actors . of this nehemiah had a sense , when he resolved against flight in those words ; shall such a man as i fly ? and this that emperour remembred , when he rouzed himself up against sorrow for his distress , with these words , non decet imperatorem mori flentem . and to this the chancellour here is the prince's remembrancer , that as he well chose , so he should fix upon grounds of congruity and reason , as he was both a knight in present , and a king in possibility . miles es , ] this is not expressive of his profession and addiction , but in a more press sense relates to his particular dignity and degree . for usual it was with princes afore , & in h. . time , to create , by dubbing their sons knights at the baptistery , or in their cradle , or when they were able to go . perhaps our prince might not be so early a knight , but one created either when he grew fifteen years , or before . whensoever he was knighted , is not much material ; that such he was , is without doubt ; and that such he deserved to be , according to the addictions of his manly mind , is plain from our chancellour's words , which i take to be not pompous in courtiery , but real , according to the latitude , and very truth of its history , and accomplishment in him , rex futurus . this is the other argument on the behalf of martial acts , as our princes choice . he was born the heir of a crown , and had title to regality , when god should disseise his father of regality by death ; till when , the prince was but a subject : for the law abhors deprivation , or resignation , upon any pretense whatsoever , allegiance being indispensable , and determining no how but by death . now the prince being by inheritance , if he should survive his father , a king , this rex futurus is proper , as to that probability and the regality of a title ; but it had another sense also from our chancellour : it is as it were a prophecy of loyalty , concerning the ruine of usurpation , and the introduction of h. . the rightful lord , or at least of him the prince ( now his father is dead ) king. rex futurus is indeed the voice of loyalty , but it ha's an associated per adventure ; because what we are is before , what we shall be behind the curtain of providence mysterious to us . 't was bravely said of our text-master , but he ( good man ) reckon'd without his host , and was not a prophet in the upshot : yet this he did , to keep up the prince's spirit , to harden him against despondency , to rivet on him magnanimity , which erects a kingdom of content in the very quarters of crosses . this , i believe , he did , to lesson him , that power lost by battle , is by battle to be regained ; that princes fighting strenuously are probable bravely to succeed ; that diligence makes those fortunate , whom dissoluteness reduces to want , and , what 's worse , contempt ; that if there were no other argument to courage , this were enough , that princes are impatient to be the vassals and tennis-balls of fortune , and that their probablest rescue and restitution is from resolution . regis nempe officium est pugnare bella populi sui , & eos rectissimè judicare . in this clause the office of rule , both as to war and peace , is fet down ; and this the chancellour appropriates to kings , as the meetest persons to carry on both good offices . this was primitively familisrique , all power being vested by god in the heads of families , over those that were theirs by generation , emption , compact , or conquest . and as the power of life and death , which was civil judicial power , was in them ; so also was the military and bellatory power in them also ; for , if they were to rule their family , they were also to protect their rule from inroads upon , and injuries to it . thus did abraham , very soon after the world's peopling , arm his menial servants , to propel danger from them , and redeem his captive nephew , gen. xiv . . after when power was more publique , and increase of people dwelling together called for a magistrate ; the sword , both to repel evil , and compel to good , was lodged in him as well by the determination of god as the consent of the people . this did moses , ioshuah , and the judges execute , and after them the kings , god having written this sapience on man's nature ; according to which , generally , all nations , and unions of men in all places , and at all times , assented to the position of power in one or few , for the good of their respective combinations . and , if the holy writ had been silent in this , there had been good authority for its practice , merely upon the rules of civil convenience , and social necessity , which is an original law , and paramountly takes place , as having its warrant in its weight , importance , and utility ; nor could it be doubted , but the general compliance of the rational nature with it would have silenced all pretensions to doubt about it . but st. paul , from the spirit of god , ha's partly asserted magistracy thus accommodated , as our chancellour describes it . the magistrate bears not the sword in vain , that excludes power from being made a cypher . if thou doest well , thou shalt have praise ; if evil , fear the power : that is , the authority of god , in the trust of man , is for promotion of justice , both in animation of good , and repulse of evil . under which head , war , as occasionally necessary , is not onely lawful , but useful ; and that without which , justice cannot be propagated ; since wars are undertaken not wisely , not properly as choices , but as such exigents , without which peace and justice cannot be accomplished , or enjoyed : so true is that of valerius martianus , who , though a creature of bussle , and one made by battle , yet when become great and grave , declared it his maxim , let us not live war , while we can leave in peace . and therefore , if a governour will prove himself an adrian , it à se rempublicam gesturum , ●t sciret populi rem esse , non propriam ; if he will shew himself untreacherous , by being jealous of his necessary power , he must apply himself pugnare bella populi sui , if ever he intend eos rectissimè judicare . for as the empire of god is not submitted to , but ratione potentiae & for midatae vindictae in rebelles ; so will not humane governments be subjected to in their moderate , legal , and uninjurious commands , without punishment by the edge of the sword upon recusants . hence was it , that as the iews , in times of peace , punished enormities with death , restitution , retaliation , according to the divers nature of them , so did they impede the great neighbouring evils of encroachment on them ; which nations bordering on them were ready ever to attempt , by diversion , and making their countrey the seat of war. upon which they were led by their kings , and leaders , who were iepthahs for valour , souls for stature , davids for activity , chosen men , whom their people followed readily , stood to manfully , brought off victoriously , there being a natural love and loyalty in all people to men of honesty and valour , as appears in many instances , but chiefly in that of the people to ionathan , and after to david ; yea , and of later times to nicephorus boloniates , who thrust michael ducas from the empire ; and , ignatius says , had reception by the people , as a reproach to ducas his cowardise . hence came it to pass , that the nations looked upon no virtue so peculiarly and directly in the kings , as chivalry . plutarch tells us , the egyptians chose their kings 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , either from their priests , or from their warriours ; and he adds the reason , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as thinking those onely worthy to rule , who were famous either for valour , or learning . and xenophon writes , that the greeks were like minded , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . so well advised was agesilaus , that he judged strenuity proper for kings . so agamemnon is commended by that authour from a poem of him here quoted , and approved , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he was both great to fight , and wise to rule aright . yea , he brings in cyrus , justifying himself to be a good governour , from that valour he expressed against the nations enemies , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as if it had become him scur●ily to fear , and not rather to fight them as he gallantly did . and clyt●bulus is brought in by him , declaring , that the persian kings did , and they ought ever to divide their time , between war and husbandry ; and where ever this distribution of kingly office is not , he terms it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , an imperfect government . the romans also eyed much valour and military prowess in their kings , consuls , emperours , and captains ; therefore , they chose two yearly consuls , and purposely disposed one to the care of martial ; the other , to the civil justicing between man and man , yea , though they were a nation fledg'd by war , and were made up of flagrant and combustible elements , yet were they most just in their pacts , and inviolably zealous for indemnification of allies ; nor did they ever take a provocation so lightly , as to proceed to revenge it on their provokers , and right themselves against their provocation : but , upon sullain and surly persistencies in contumacy , and resolves of injury , memores icti foe deris cum panis non statim ad arma prccurrunt , dum priùs more legitimo quaeri malunt , faith iornandes . after , when they chose emperours , and chiefs , they looked upon the warlik'st of men , and him they subjected to , and followed ; yea , the laws of all governments , as of the empire , france , spain , denmark , and this empire of great britain , do therefore call wars the (a) king's wars , coyn (b) the king's coyn , the navy (c) the king 's shipping , the forts (d) the king 's strong holds and castles , the laws (e) the king's laws ; the subjects , the king's subjects ; the courts , the king's courts ; because by these the kings are enabled to defend themselves , and their governments , and that by wars , to suppress rebellion , or divert invasion . and the trusts of god and men , vested in the king to these publique beneficencies , have , do , and will ever produce to their trustees , glory , riches , and serenity . these exhalations are returned in golden , silver , and milky showres ; the via lactea of majesty . caesari quoque ipsi , cui omnia licent , propter hoc ipsum multa non licent : omnium domos illius vigilia defendit , omnium otium illius labor ; omnium delicias illius industria , omnium vacationem illius occupatio . now if the office of kings be to war for peace , and security ; where , without it , they are not purchasable , or possible to be kept ; then the means of effecting these are , de debito , the king 's . every end supposes a means . if the king be to do , he is to have wherewith to do : he is else but togatum mancipium . therefore our laws do own and recognize the seigniory of the king , to defend force of arms , and all other force , against the peace , whensoever it shall please him . so declare the peers and commons , in full and free parliament , edw. the first . not thereby to out themselves of all subject-like counsel to their kings , in cases of war , to be entred upon : for , in those cases , our kings have chosen to take their advises , before their own personal ones : but the law was so , and so then declared , to enable the crown to do its proper office , in case of emergencies , either of rebellion , or invasion ; and were they bound to wait the convention of counsels , tedious often before , and in their meetings , remedies would be impossible , and villanies unhinderably successful . — serò medicina paratur cùm mala per long as convaluêre moras . this is the rather to be touched upon , because it was once an old sore , and through the putrefaction of this hath made a many years confusion , and given being to a levelling monster , and a hydra-headed antique , which deserves to be caution'd against in the legal assertions of the truth in this cause for the king being caput regni & legum , all direction , protection , judgment of discretion , and severity is in him ; and as the law says , nihil potest rex , quàm quod de jure potest ; so is it a just rule ( saving incommunicable absoluteness ) quidquid iovi , id regi licet , that is , as unaccountable to the coercive power of subjects are kings , as god himself ; the deputy : as his principal , though that of seneca be also true , ad reges potest as omnium pertinet , ad singulos proprietas . yea , were not kings exempt from these shackles of iron , and base metal , what glorious nothings , and glistering cyphers would they be ? what pitisul mercenaries would insolence , and plebeian encroachment reduce them to : like that tartarian prince , they would truckle under the usurpations of their vassals , and be guilty of that easiness which is irregal . quod ad religionem attinct , de qua inter vos disputari audio , vester pontifex meus pontifex erat ; vester lutherus , meus lutherus . so abhorred a degradation of majesty , that no generous spirit would take such an unkingly kingship . the law then in the chancellour's words , pugnare bella populi sui , ha's this interpretation , that the king is by office to fight the battles of his people ; that is , by his people to battle , for the adjunct of propriety , ha's here but a sense of ministry , not causality ; that is , 't is not to fight the wars of his people , as they are warranters of , and regents in it ; but of his people , as they are those instruments he fights by , and fights for , since the end of war is peace , as it follows , et eos rectissimè judicare . this the chancellour adds , to shew the amiable , as before he had the terrible check of majesty . so wisely ha's god provided for order , and the tuition of the magistrate's power , that between force and law it should be intermerate . force supports law , and law moderates force ; were it not for punishments , we should be ravilliacks to one another , homo homini lupus ; and were it not for laws , property would be determined by might , and lame and helpless mephibosheths be popped off with nothing , though they are the rightful heirs , and ought to be the real possessours of their rights . so that laws are the rules and monitors of kings , concerning their duties to god , in their demeanours to men . 't is true indeed , parem habere non debet rex , nec multò fortiùs superiorem in justitia exhibenda , ut dicatur de eo , magnus dominus noster , & magna virtus ejus . that fleta asserts , as the king 's undoubted right : but then he subjoyns , licètomnes potentiâ praecellet , cor tamen ipsius in manu dei esse debet , & nè potentia sua maneat irrefraenata , fraenum apponat temperantiae , & lora moderantiae , nè trabatur ad injuriam qui nihil aliud potest in terra , quàm quod de jure potect . so fleta , lib. . c. . i know that great is the indulgence of god to kings , and vast prerogatives ha's he vested them with . and to kings , as the flower of men , hath he given rational principles of sapiencie , to immure and protect his donaries to them , and kings would be accessary to their own , and their subjects woes , if they should not employ to their preservations ( in all worthy and wise latitudes ) such intrusts , and commissions , by god and laws delegated to them . but yet fleta's counsel is from the unerring mouth and mind of truth , temperent igitur reges potentiam suam per legem , quae fraenum est potentiae , quòd secundùm leges vivant ; quia hoc sanxit lex humana , quòd leges suum ligent latorem : & alibi digna vax ex majestate regnantis est , legibus alligatum se principom profiteri . so he , loco praec . it is sedition in subjects , to dispute what a king may do in the heighth of his power , but just kings will ever be willing to declare what they will do if they will not incur the curse of god. i will not be content , that my power be disputed upon : but i shall ever be willing to make the reason appear of all my doings , and rule my actions according to my laws . princes then must not be remiss and negligent , but vigilant and distributive of their power to their subjects ; that 's judicare , the act of majesty , by example of , and authority from god. the lord sitteth in the congregation of the mighty , he judgeth amongst the gods . and this impartment of their power , they must make secundùm jus & aequum , as the laws of their government directs and advises , and that 's rectissimè eos judicare . for though laws may be hard and unpleasing , yet , while they remain laws , the people are to be ruled by , and the prince is neither cruel , nor unjust , in exacting obedience to , nor in correcting contumacy against them . though his goodness and conscience , in discharge of his place and power also it be , to cause their emendation and correction ( if such they be ) with all possible speed , and to proceed with all imaginable zeal to the deliverance of the people from the burthen and influence of their rigour on them : so wisely spake king iames of happy memory . if any law or statute be not convenient , let it be amended by parliament ; but in the meantime , term it not a grievance : for to be grieved with the law , is to be grieved with the king , who is sworn to be the patron and maintaixer thereof . and thus all gracious and beloved kings have ever done , ruling not by lust , but law ; not by absolute power , but by legal administrations : and this will properly call him , that so does a king. ' o 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. tyrants seek their own good , kings the good and benefit of their subjects , saith the philosopher ; and lib. . de repub. after he ha's spoken much of kings , as keepers of those rights , which nature ha's annexed to men , and made them defenders of , he concludes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that is , the tyrant's end is benefit to himself , to suck the sweet , and eat the fat of subjects : but the king's care is to profit and better his subjects , by example and precepts of virtue , seeing they do things honest , and of good report . and that this is the second pillar of government , and that which kings are to look after , having by the sword procured peace ; if otherwise it was not attainable , is plain from the joynt consent of all good authours , and authorities of scripture , reason , and practice ; as learned hopperus , and ficinus on plato's politicks , ha's notably observed . i know there are some parasitique wits , that forge arguments , to the subversion of legal boundaries , as never made by god for princes , nor reasonably to be commended to their practise ; yea , that harmless , and , as i believe , it was intended , and is by wisemen expounded , rule of the civilians , quod principi placuit legis habet vigorem , they apply to the liberty of the king's will , to do what he will with the lives , fortunes , and liberties of the people under them ; a device to blow up the very root of kingship , god's blessing on it , love of subjects under it , and the content of that continual feast , which a good conscience makes to its possessour in all the vicissitudes , and varieties of life . for kings being but men , and so under the law of mutability and misery , do need , how great soever they be , the prayers , fidelities , and assistances , both by purse , and person , of their subjects , as often as their legal and necessary needs shall call for them ; and if they that are to pay and serve , love not their lord , they will part with their money but slowly , perhaps after the season be past , and serve him but coldly , him in shew , and his antagonist in truth : 't is love , alas ! mixed with fear , both subtilly , and yet innocently blinded in the gubernative activity of power , that makes kings secure and beloved . take away these kind entercourses in this politique marriage between king and people , and all the disdiapason ceases , and the harmony becomes disconcented . indeed , the pleasure of kings is , in a sober sense , the law ; because kings please to do nothing but justice , the just counsels of god being with them , quà kings , and they knowing , that they are accountable to god , for the ryot of the man , against the king , in them , ought so to demean themselves to their subjects , as god does to the world , because god ha's made their subjects to them , as the world is to him ; that is , since god ha's made them lords , not to be disputed with , but by prayers and tears , by patience and resignation , they should carry as even and just an hand towards them , in providence for their good , in compassion to their wants and weaknesses , in tenderness of their freedoms and securities , in desires to deserve their submissions and loyalties ; as god does , whose mercy is , in this sense , over all his works , and who accounts severity his strange work . and as god can do no injustice , because he is essentially just , and all justice is originally in him , and what is in us , is but by derivation from him ; so kings are to do nothing unjust , because not onely so far as they do it , they are inconform to god , but for that they are responsible for what they do to god , whose rectitude they ought to imitate . caveant igitur sibi reges & iudices , nè conquerentes repellant , vel perverse judicent , ob quod in judicium justi dei corruant , ubi judex terribiliter discretus , & intolerabiliter severus , immoderatè offensus , & vehementer iratus , cujus sententia immutabilis , carcer irremeabilis , tormenta sine fine , saith fleta notably . and while kings remember this , and bring their dignities in credit by their virtues , not resting more on their power to coerce , then on their iustice to invite their people to their admiration and imitation . hortensian laws , that translate power from people to them , restraining all from using it besides themselves , are no injury , but advantages to the people ; the wisdom of kingly counsel best knowing how to manage dexterously , and to purposes of sovereignty , such entrusts : no , nor truly are such devolvings greater advantages to kings , then to render them more capable to make their people happy , by their more affectionate and watchful eye over them for their good , nor is all the honour and support that love and loyalty in subjects to their prince can express , more then the bare return of their regal merit , who watch , and cark , and care , that they may be quiet and orderly under him , in order to god , the sovereign of him and them : which makes me conclude allegiance and fidelity a most religious and reasonable service of god , through the person and government of the king ; who , whatever he be , we ought to obey for conscience sake , with gratitude to god's mercy , when a david , and a solomon ; and with patience under god's pleasure , if otherwise : considering , that as well evil men , as good in kingship , are to be obeyed ; because obedience is due to the office , and to the person in it , by reason of both the person in the office , and the office in the person , and that inseparably , and without distinction . yea , if kings should be misled by ill counsels , and do the thing , that is not right in the sight of god , and in the sense of the law , because god is the onely judge of their actions , and the law 's head is the king : christian subjects have no refuge to fly to , but obedience , and prayer to god , to turn his heart . they must not curse the prince in their thoughts , nor calumniate him in their words . for as the former is blasphemy and sacrilege , so the latter is desperate treason ; the road to damnable and detestable rebellion . for since god never made any other judge of kings but himself , pretension to reduce their eccentricity , by being insolent against them , is in gods , and the laws account , but plausible enmity and intention to subvertthem : the good king , our late lord charles the first , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , found it so . never were more protestations of love and loyalty worded , then some of his english-men made to him ; who yet brought him to the cursed custody and power of those , who impiously , and to the eternal dishonour of god , and the laws of nature and nations , murthered him , whom all good men venerate for a martyr . power then being the ordinance of god , and residing divinely in the person and office of the king ; allegiance and duty , in all the latitude of them , are by all manner of rights due to the king. and as nothing can make it cease to be due to the king , it being founded in the law of nature , and due by it to the king ; who , though he may die in person , yet lives in succession and office , there being no interregnary chasm in england ; so can no just expression of it be denyed , without sin against god , and injustice to his vice-gerent , who ha's power of his body , as head thereof , and ought to have homage from it , as the vital influence of the whole , and every particular in it ; which i thought good to write of here , to testifie my abhorrence of those levelling monster anarchique principles ; which , infatuating this nation of late , produced so unnatural , and tragical effects of war , disloyalty , and irreligion amongst us : in which while , some loyal-resolved , and knowing subjects , asserted their duty , and to their eternal honour , suffered more , or less for it : more credulous beguiled , and misconducted ones , either wholly forgot it ; or , in regard of the pressures upon them , did not so vigorously express it as they ought ; which since god , i hope , and the king , i dare say , ha's in the majority , and well-meaningness of the seduced people forgiven , i onely remember here as a caution against relapse ; humbly beseeching god , that both king and people may live in unity and godly love , that as all good kings in their government must imitate god , and his christ , in being just and righteous , david and solomon in being godly and wise ( they are wise king iames his words ) as they prefer their people's good beyond their own quiet and pleasure , as philo says . kings , shepherds of their people , do ; so all good people must , and are onely good , when they do observe the rule of religion , give honour to whom honour , fear to whom fear , tribute to whom tribute is due ; that is , to the king , and to all in authority under him , and to evidence to the world , that while others live besides , they live according to the rule of christian , and english subjection . and this , on bothsides observed , will cashier all jealousie ; for while both respectively , rule and obey according to the laws of this realm , the people will live orderly , and in peace , and the king will be able pugnare bella populi sui , & eos rectissimè judicare . vt primo regum cepite octavo clarissimé tu duceris . here the chancellour produces to the prince a scripture-instance , in the great example of the wisest of men and kings , solomon ; who being instructed by god how , as well as authorized where to rule , is the best pattern for a prince's practice in his regal demeanour . and that solomon here mentioned ( for the eighth of the second of kings wholly treats of him ) is not a person less matchless , then is generally and truly presumed of him . 't will not be amiss to consider , what in him may be most eminent , most convictive of our belief , of his supremacy above other men , either of his , or after-times . and though comparisons are odious , and vulgarly , we say , there is no one man so accomplished , but there is another as excellent as he ; yet since the spirit of god , and all authours christian after him , ha's made him the phaenix , humanae naturae ornamentum , 't will be not lost labour to consider him . solomon then was a prince born , the son of king david , by bath-sheba his beloved wife , a prince solomon was , called by this name mysteriously , in order to his causation of peace , and introduction of the concurrent blessings with it , plenty and riches . for he made silver , to be in ierusalem as stones , and cedars made he as the sycamore trees that are in the vale in abundance , king. viii . . and in order to his being a type of christ jesus , the prince of peace , who brake down the wall of separation between god and man , and brought life and immortality to light through the gospel . a prince solomon was , wise as an angel of god ; so the holy text phrases him , so the holy god endowed him : god that gave him leave to desire what he would of him , gave him love to wisdom and grace , to beg it as his choice , and to obtain it as his jewel : so wise , and so understanding a heart did god give solomon , that all expositors do agree him ex omni parte beatus , both as to speculation , and action . tiraquel numbring the virtues of all antients , and moderns , makes solomon , in wisdom , paramount to them all . pineda ha's made a large and laborious . treatise de gest is solomonis , wherein he makes every arome , and minute-particle of him , a mountain of wonder . and turrian is not behind him in the admiration of him . and no wonder : for if wisdom make a man's face to shine as it is , prov. and as the heathens acknowledged to the praise of her , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , there is nothing more honourable then wisdom ; because it is the image of god , and that which gives the possessour of it praelation above others ; as it enables him to know those things , that otherwise are hidden , and hard to men . so the philosopher says . if socrates , whom the greeks thought 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the wisest of mortals , made it his study amongst men , and his petition to the gods , to be wise ; o amice pan , & caetera numina , date obsecro , ut intus pulcher efficari ; o thou pan , and the rest of the gods , grant me , i beseech you , to be beauteous in soul , inwardly worthy ; which roselius enlarges , veritatis divinae cognitionem petebat ; he desired knowledge of divine truth , which god onely was able to grant him , which onely a calm and well-tempered soul was capable of . if wisdom , which all authours and ages thought god in man : if this , i say , were in our solomon eminently , beyond the proportion of other kings , and answerable , if not transcendent , to the endowments of other men , not moses himself excepted , though vatablus be of another opinion ; and if this mass of wisdom be evidenced not onely judicially on the throne , but discursively in the chair , to the admiration of all hearers , who being at his discourses from the cedar in lebanon , to the hyssop upon the wall , and other his civil precepts in the proverbs , ecclesiastes , and song of solomon , ( though grotius herein also much abates him , while he makes the proverbs to be onely liber 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a compilement , like those the emperours of constantinople after him had , of all the select sentences of those heroiques that in time preceded him , and were proverbial amongst the iews . ) i say , solomon's works and words considered , will render him such an non-such , as the holy spirit characterizes him to be . so true is that of a learned man concerning his proverbs , neque ullum vel ex universo proverbiorum numero reperias , &c. that there is no passage in the proverbs so inconsiderable , and ordinary in the words of it , but if it be rightly and throughly understood , couches in it some admirable piece of truth and wisdom , worthy the most wise solomon its pen-man . so great , so wise , so much of mortal comprehension had solomon , that , amongst men , the sons of natural propagation , no socrates , no xenophon , no caesar , no marcus antoninus was greater , was like to him . he was of the quorum , quaruns , quorum , to all that preceded him , or shall succeed him in the ordinary way of manhood ; and therefore is most to be heeded , as he is virorum scientissimus , & exemplorum augustissimus . this for the dignity of his person . now as to the divinity of his prescript , in that which our chancellour here instances , in the eighth chapter of the first of kings ; which chapter , having many remarkable passages in it , was purposely quoted by our chancellour . first , in it there is solomon's regard to , and valuation of the ark of god ( the visible sign of god's presence ) expressed in the assembly of state , that he summoned to attend its remove , the elders of israel , all the heads of the tribes , and the chief of the fathers of the children of israel , unto the king , vers . . 't is not fit any thing of gods should be passed over without due honour , nor his ark change his station , without the attendance of a decent equipage : princes that serve not religion with all their might , are not worthy the blessings that attend it . therefore , gracious king charles , our late martyred lord , made a rare choice , nor could i follow better presidents ( said he ) if i were able , then those two eminent kings , david , and solomon , not more famous for their sceptres and crowns , then one was , for devont psalms and prayers ; the other , for his divine parables and preaching , whence the one merited , and assumed the name of a prophet , the other of a preacher . titles , indeed , of greater honour , where rightly placed , then any of those the roman emperours affected from the nations they subdued , it being infinitely more glorious , to convert souls to god , by the word , then to conquer men to a subjection by the sword. thus he . all the estates , that attended the ark's remove , did it not more to observe the king's pleasure , then to testifie their own duty ; for they that went before the ark sacrificed sheep , and oxen , that could not be told , nor numbred for number . ] zealous minds think that the best service of god , which is most costly , as desiring to shew the truth of their heart in the bounty of their hand . solomon blessed the whole congregation , and the people stood . ] 't is a good sign of accord , when passions , and prejudices , do not obstruct between prince and people : when the one thinks himself not too high , to regard his meanest subject ; the other , shews himself not too heady , and humorous , to observe and reverence his liege lord. solomon the king solemnly pours out his soul to god in prayer before the people , as not ashamed of the humility of a sinner , in the heighth of the state of a sovereign . ] nothing debases majesty but sin , nor disparages a king in his peoples eyes , but flagitiousness : he can never miss acceptation with men , that first gains by prayer and humility acceptation with god : nor does he ever miss to finde god propitious , who seeks him with all his heart , and serves him with all his might . solomon builds a magnificent temple , which he devotes to god , and which he prays , that god would accept as his own . ] 't was not the king's prayer , nor the bounty he had expressed in the costly furniture of it , that at all advanced those ends solomon had in its designation : he intended it as a refuge to the peoples distress , and an oracular repertory , in which the secret of god's power and goodness should be ( as it were ) deposited , which it could not prove , unless god ratified it for such : therefore prays he to god to grant his petition , and to accept those services , that he and his people should in that place perform to him . good princes would willingly bring god and their subjects to an accord , and leave his blessing as the guard of their government when they are gone ▪ there is no policy like that of religion , which ever keeps god on its party . the king blessed the congregation again after , as well as he had done before his prayer . ] to teach princes , that their love to their people , should be ever in their memory , and that religion is the cement of their reciprocation ; nor do the laws of holy church lesson ought to prince , or people , beside love , and duty . solomon keeps a feast , to satiate the peoples stomachs with his dainties , as well as he had spoken to the filling of their ears with pious orisons , and devout interpellations to god for them . ] to pattern princes , to use all baits to catch multitudes , the soberer of them with the reason of good counsel , and serious kindness ; the ruder sort by bounty , and pabulary plenty , which will make them love , and bless their benefactor , and return to their quarters contented , as israel did , v. . these are the main poles , upon which this chapter moves towards a fitness of directive influence on the prince , for in that he ha's his life and breath from god , and even for his crown , and power , is but a feudatary to the almighty , who deals by monarchs , as by pismires , and exalts , or suppresses , as he pleases , in the kingdoms of the world. and inasmuch as kings have no readier way to preserve god their tutelar , then by securing his rights inviolate , and by promoting the glory of his divinity above all secular projects , and extern conveniencies , as solomon here did , and as nature her self dictates to her very own sons not enlightened by divine revelation , or scripture-regulation , according to that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the first care of kings is that of religion , and the worship of god. in that , this wife and worthy monopoly of devoting to god the totality of our prime and principal affection and reverence is in this chapter pithily and particularly set down ; and that it conduces , being punctually observed , to so much felicity and greatness in the outward state , parados , and pomp of a prince , it well deserves the perfection and distinct observance of him : and the chancellour ha's done wisely and faithfully to direct him to it . quare ùt armorum , utinam & legum studiis simili zelo te de ditum contemplarer . here the good old chancellour wisely does not non movenda movere , as they did , who laid siege to supplant that which was sacred , as past their reach , and so ought to have been exempt from their attempt ; but he presses the prince to so equal a divident of himself between arms and arts , that neither may have cause to boast of their engrossing him , or of his dese●tion of them ; but both being ancillary to his regal endowment , might indifferently be candidates to his favour , and to both have his love and leisure proportion'd . to love arts , so as not to hate arms ; and to practise arms , so as not to decline arts : to handle the sword , yet not so as to suppress the law : so to remember himself a prince , as not to forget himself a man ; homo ab humanitate , a christian man , ferendo non feriendo , a knowing man , whose right commenceth from god , and is conveyed and declared by the laws of civil compact , recognizing hereditary descents , and is secondarily supported by armies , and courage to manage them . ' o 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the law is the queen of all divine and humane things , and ought to preside over all men , good and bad , to be the leader and president , and the rule both of just and unjust . and thus a prince , viewing himself , cannot more incline to mars , then mercury ; nor affect to be onely a souldier , and not an artist , but practise both feats of cratory , and prowess , as occasion serves , and as their warrantable and just advantages conducts them : which to observe , and be punctual in argues the highest fruits of noble institution , inclination , and god's amen upon them . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . for wisdom ( saith nazianzen ) can instruct the city to do more then arms , and strength without it can : yea , whereas the indiscreet man , by his force , is rather presumptuous to take the first opportunity , though it be the worst , because he rests on his forces , and that arm of flesh , he is seconded by ; wisdom conducts him , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to chuse worthy methods to worthy ends , and to stay god's leisure , and not to precipitate a good cause by an ill managery . so that father : and therefore so concluded edward the fourth of this land his life , with the charge he gave the lords and others , trustees for the education of his children , in these words : if you bring them up in virtus , you shall have virtuous princes ; if you set them to learning , that governours shall be men of knowledge ; if you teach them activity , you shall have valiant captains ; if they practise policy , you shall have politique and prudent rulers ; if they be unlearned , they may , by flattery , soon be blinded , and by adulation often deceived ; if they lack activity , every creature , be he never so base of birth , shall foil and overthrow them like dumb beasts , and beastly dastards . therefore i desire you , and in god's name , adjure you rather to study to make them rich in godly knowledge , and virtuous qualities , then to make parties to gratifie them with abundance of worldly treasure , and mundane superfluity . thus nobly that king. cùm ùt armis , ità legibus judicia peragantur . quod justinianus augustus equissimâ librue mente in initio prioemii libri suo institutionum ait , " imperatoriam majestatem " non solùm armis decoratam , sed & legibus oportet esse armatam ; ut utrumque tempus " bellorum & pacis rectè possit gubernare . this the chancellour marshals in this order , to make good what he had formerly gained : for , as in the former clause , he had made the prescript ; so in this he subjoyns the reason , kings , as mix'd persons of mercy and justice , are keepers both of laws and swords , the purports of both tables ; and , being such , are to practice the activities of both hands , to apply law to their ordinary , and force to their extraordinary administration ; since as food and physick preserve the body-natural , so do laws and arms the body-politique . hence is it , that synesius makes a well-instituted warlike prince most inclinable to peace ; because his generous nature having circumvallated his power renders him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not onely , not willing to do wrong ; but by his power to prevent wrong from being done ; yea , it inclines him not so much to list up his head above men in self-magnification , as his hands and heart in solemn gratulation to god ; both the god of him and his government . for kingship was looked upon in the world to be the prognate of god , and a derivative from his wisdom : and therefore , not onely the scripture brings in god , asserting the patronage of kings , by me kings reign , and princes decree justice , but also heathen writers make their gods the proto-kings ; which synesius avers to be the position of the egyptians , who are reckoned mortalium antiquissimi : and this they did not onely to aw men into fear of their thunder and lightning , but also to bespeak them to a belief , and recumbency on them , as fountains of justice , sanctuaries of refuge , treasuries of benefaction , not torvous , and of truculent aspect , but gentle and calm-look'd . thence came those positions of iustinian , regiam majestatem , &c. and thence transplanted into our law ; because , though kings be , in a sort , gods and unquestionable by any but god ; which was marcus antoninus his assertion seconded by all subsequent authours , as grotius ha's well observed and as tacitus long before wrote in those words , principi summum rerum arbitrium dii dederurit subditis obsequii gloria est relicta . the gods have given princes supreme power . and allotted to subjects onely the glory and praise of obeying them . and though those , whom he mentions to be kings in ga●l and germany of old , who had onely power precario jure regnandi & auctoritate suadendi , non jubendi potestate , were but improperly called kings , kingship being a thing absolute , by , from , and under god ; though ; i say , these are , and ever will be loud truths , not to be descryed by the oyms and zyms of anarchy and popular insult ; yet are they far from inflating princes , beyond moderate , and well-featured bounds . god ha's indeed subjected subjects to kings ; but ha's he not also subjected kings to himself ? surely yes , and they must give account of their people to him ; and they will never have comfort in their rule , except they have learned to rule over their passions , and to be subject to the prime regent , god ; who ha's deputed kings to be pastors and curates to his , flock the less glorious creatures , on whom the image of god is stamped , as well as on the greatest monarchs . and therefore , as arms are to support governments , so governments are to express themselves by laws , as the genius of direction to those arms. for god never intending power to be bruta fulmina , which carry more terrour then use : the magistrate is not to use it , but for the punishment of wickedness , and vice , and the maintenance of god's true religion , and virtue ; which when they do , they are true executours of christ's will , and bequests ; lovers of him , because keepers of his commandment ; and his commandment is to do justice , love mercy , and walk humbly with god. this , this is the noble end , and noble expression of power , ut intelligeret eo se loco jam esse regem suppositum , ubi suae propriae personae oblivisci & in unum reipub. bonum incumbere deberet : giving the king to understand , that in being a king , he becames a forgetter of what is his personal advantage , to make good his publique office , saith learned hopperus . and he that goes by this canon shall be sure of peace , and god's blessing in his soul , and on his proceedings . yea , the fruits of it he shall reap in the love of his subjects , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the onely and chief protection and security of princes . for though particular accidents , and fatal periodiques tended to in the old age of governments , crosses this in the experience of its safety ; yet 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and saving those occult causes , which are not to be defeated , the canon is sure , that moderate government is most durable ; which is the reason , as i humbly conceive , the laws of england , the best tempered laws , for an island , in the world , point to the kings of england , the middle way of government between absolute will , and popular dependance ; because thereby it puts both king and people into a felicitous state , which they cannot deviate from , without mischievous inconveniencies . a political monarch governs his subjects , as a father doth his children , by equal and just laws , made by their own consent to them . despotical government is that of the turks , and muscovite ; but political is , and ought to be the government of all christian kings ; i am sure it is of ours : and therefore such a kind of monarchy as ours is not onely the most just and reasonable , but the most plausible , and popular government of all others : they are the words of that most reverend and learned prelate the lord bishop of worcester . the king is absolute ; what then , may he do what he will ? is his pleasure a law ? as king , yes : for so he can do no wrong , because , quà such , deum agnoscit superiorem & legem ; but as mistaken , or seduced by passion , his will is not the law , but the law his will ; and though men are no supervisours compulsive of him , yet is there one greater then he , satis est exspectet deum ultorem : that 's his aw and monitor , ad bene regendum , the subject is free : how ? not to do what he list ; no , not with his own : for he must so use what is his , as not to prejudice the publique : so is the law of reason and policy , respublica praeferendae est privatis , and so affirm the statutes , e. . c. . . . e. . c. . h. . c. . h. . c. . h. . c. , . h. . c. . h. . . i edw. . c. . & . & e. . c. . & p. & m. c. . i eliz. c. . eliz. . i eliz. c. , . eliz. c. . eliz. c. . eliz. c. . and hundreds of others , which were made to restrain private emoluments , where publiquely detrimental : yet he is free from all restraints , other then such as the common law , or the consent of the nation in parliament , puts upon him , his body , life , lands , posterity , and can appeal to the king's court for relief , against all preter-legal courses against , or oppressions upon them . and hence is it , that the government of england being so transacted by the law , produces justice , riches , peace , and piety , to a wonder . for the monarch rules in it optantibus cunctis ; and if in any thing he be incommodated , non spem hominum excitat sed metum ; yea , so filial a love have englishmen , for the most part , to their p●●ces , that what seneca writes of the prince , is true of the people , nihil esse cui quam tam praetiosum , &c. nothing they have is so precious to them , as the safety of their governour ; for whom , as they will desperately hazard , so in his safety much rejoyce : so much they hold themselves related to his weal or woe . and therefore , though true it be , that england is by some looked upon like athens in solon's time , as a mix'd government , which ha's much of regulation to power in it ; yet is it as true , that england's imperial crown being absolute , in regard of dependance on any but god , leaves the monarch as well empowred with the sword to propagate , and protect justice , as directed by the law , to administer justice to those that need , and seek it . the use then both of arms and laws , must be connected in a prince , that he may be indefectuous : for as arms are like the muscles , that move and plump out the joynts and proportions of the body , that they are symmetrious to the beauty of the whole ; so are laws like the veins and arteries vehiculary of the blood , and succulency into all the parts , by a right orderly circulation , and distribution . and the counsel laws give , is not to suppress the use , but advise to the right use of the sword : not to condonate through easiness great offences , nor to punish passionately , and with severity , small disgusts and errours of infirmity ; but to give to every offence its proper chastisement , to arbitrate the law 's prescript , and become its patron . this , while a prince promotes , he declares himself an agesilans , a rare prince . for of him xenophon writes , ' 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. that though he could do what he would , yet he d●d what onely he ought , professing himself to be under the direction of the law , though not the subjection of it . our chancellour then had good reason for his advice , since he caressed , and smoothed the young prince into the love of the law ; fore-seeing , with timon of athens , that if he were onely a martialist , he might be as alcibiades was by him fore-seen to prove , patriae exitio futurus ; so the prince might , patriis legibus exitio futurus : since what youth sucks in , it retains , and propagates in its manhood , and age : which considered , good princes aim to do ; as iustinian says , armis decorari , to use force as a jewel for shew , ad faciendum populum , to purchase dread and estimation ; but , armari legibus , to speak favour and terrour to subjects , in law terms , per delegatos judices , non per ut legatos milites , morè curiali , non militari , by pen and paper , not guns and pikes , the paradoes of conquests , not the practice of civil governments , except on extraordinary occasions , and then , as necessary as physick , in bodily distempers . tamen ut ad legum studia fervide tu anheles maximus legislator ille moses elim synagogae dux multo fortiùs caesare te invitat . here our text-master backs his former argument by an example ; he saw the prince was earnest , as one through-warm with the love of arms , and well he perceived , that his eager pursuit , which left no vein in him unstretched , but kindled , to a heighth of reaking ; ( for so aubelare signifies , anhelare est eum ex cursu , & quovis labore vehements crebris quasi singultibus spiratur & respiratur . so columel , lib. . c. . ante ad praesepiaboves relegari non expedit quàm sudare atque anhelare desierint . hence anhelare scelus , for doing mischief with might and main . tandem aliquando quiretes catalinam furentem audacia scelus anhelantem pestem patria nefatiè molientem . and again , anhelaus ex infimo pectore crudelitatem , is tullie's expression for our authority . ) and therefore he endeavours to fix his mettle , and intend his earnestness on its right object , by propounding not onely a most excellent thing , but a choice example of one authoritative in the case , moses ; one of whom , no story mentions , but either the holy text , or histories from it . the grave knight will not to moab , and ekron , not cull examples out of prophane authours , while there are pregnant ones in the book of god ; his instance therefore is not in alexander , caesar , pompey , marcus aurelius , trajan , constantine , or his henry the sixth , though all great instances of bravery ; but his man of mirrour is moses : for , though they all in their respective times , were praise-worthy ; yet none of them came up to the pattern in the mount , on which moses his face glittered to a transfiguration , and admirableness , hardly consistent with manhood . for god who had provided him such a nurse-mother , as a king's daughter ; such a cradle , as an ark of flags , and exposed him to the ruffles , and hazards , of merciless waters , when but a babe , onely able to cry under the burthen of a helpless infancy , shadowed out what he was , in time , to be , who broke out upon the world , through such a mist , and cloud of dangers ; which , when dispelled by mercy , evidenced h●● to be what god appointed him , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. as philo's words are of him both a law-giver an armyleader and a devont sacrificer for the peoples relief and supply . now moses being such a person is the example presented to the prince and asserted from the holy ghost to be learned in all the learning of the egyptians and mighty in word and in deed ; which the holy text says of him not as thinking those miraculous things that he could do worthy him or commending them in him as they were feats that the egyptians doted on and were superstitious about : for as martyr's words are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. they were but small things and not proper to commend a prophet . but therefore the holy ghost adds moses was mighty in word and indeed ; because 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. because for those two excellencies moses was famous with the egyptians . as then the chancellour's love to the prince's proficiency ; so his prudence in the choice of his example to that end is well-worthy him . he ( wife soul ) knew magnos magna decent that trifles became not those eagle and coelestiz'd souls that steer princes , which philip of macedon hinted to his son alexander whom he found playing skilfully upon the lute ; art thou not ashamed ( quoth he ) my son to be so skilful a musitian . and thence singles he out to the prince's imitation this seraphique instance of both praecellencies a man of wisdom for he was legislator to the iews ; a man of eminency above others : for though they had other legislators after him yet he was maximus legislatorum all their legislation was after his model and his precursing them : yea and a man he was not of yesterday who rose malis artibus and in the declension of the world to be a law-giver ; but olim when the golden ages were ; when virtues had the upper hand of vices then had moses the dignity to be maximus legislator synagogae dux ; and fitly so too for he had what philo says , all law-givers and chieftains should have 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the gift to excel in all noble endowments , suitable to his place and occasions . moses is then here mentioned in both capacities , both of a civil magistrate , and a martial conductor . a civil prince , in the exercise of legislation ; a martial leader , in his conduct of the people against their enemies . synagogae dux , of the former , not onely himself , in his books , testifies ; but even our lord jesus , the truth it self , who puts him in the parallel with himself : the law was given by moses , but grace and peace came by jesus christ ; and in another place moses gave them a law. yea , the iews , in religion , in all ages of the world , have testified of moses , as their law-giver . philo iudedus writing of moses his life , calls him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. as the law-giver of the jews , or the interpreter of the holy law to the jews . and to be a bare legislator , is to be presumed great in place , grave in years , wise in counsel ; for the antients did ever account their law-givers secundi dii , and never took laws from any mouthes , but those which were extraordinarily gifted : yea , if it were reckoned a part of the policy of pristine ages , to acclamate laws , as the invention and bequest of the gods to men , then sure those that were instrumental in their productions , were none of the lowest of the people , but the best and bravest of them . and of that number was moses , maximus legislator : not onely because he was primus & primas legislator , and primum in unoquoque genere nobilissimum : for before moses gathered the people into a policy , they lived in diffusions , scattered ; and as sheep without a shepherd . but maximus , as having many preparatory endowments to , and successes in this legislation . god that called him to , fitting him for so great a sphere , and making him adorn the sparta he had appointed him to . ficinus makes three endowments , or felicities , in a law-giver . deum , fortunam , artem ; god above , success about , art in his manageries , and constitutions . philo the iew , reports moses his first step to greatness ( yea , and to this degree of it in civil and martial government ) to be his apprehensive infancy ; god made him all touch taking every sparkle of illumination that was struck into him from his puisne institution . the hebrews story that one day being at play with the crown of pharaoh he threw it on the ground and afterwards trod upon it : the king , and spectators took it to have an ominous presage and the jealousie of pharaoh meditated revenge of the fact ; but the king was advised to try by some expedient conducing to the discovery of the rise of it whether malice or chance and to forbear rigour in the interim . an apple they say was on one side presented him and on the other a coal of fire to see whether he would choose ; and they say god gave him so subtile an infancy that he chose purposely the coal of fire and would have put it into his mouth ; which they say he was led to do to shadow the former instinct and under the notion of a child to serve himself for his future exploits ; and the sages told the king that there was no reason to put to death his daughters adopted babe for an act of pure simplicity . for being in egypt and the egyptians having greek philosophers amongst them whom they had leured to them by reward ; moses says he by an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an aptness of nature stole all their arts from them upon the first insight and impartment of them : so that what other lads were years in learning and then but imperfectly , at last obtained moses learned in a trice and that exquisitely , ultra quam non making good that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. so excellent wits learn arts , that they add to them by learning of them . so philo. another step to moses his fitness , was his marriage to iethro's daughter : if wee 'l believe philo for god sayes he bringing moses into his father-in-lawes house ; who as a prince and priest had plenty of all things and especially of cattle moses having committed to him the government of the castle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was made more apt thence to rule men as acquainting their inspectors which those observations vigilancies and discreet demeanours which will be usefull in greater charges . but these and such like are but the less eminent lustres of moses his additions ; that which makes him maximus legislator was his ministration to the moral laws promulgation his sanctification to his imployment magistratique by being in the mount with god days and his knowledge of the mind of god in all the latitude of his commission and his fidelity in doing every thing according to the preciseness of his entrust which god rewarded with such a reverence from the people that as he was just to god and men so was god a zealons assertor of his worth and an exiter of the people to an eternal honour of him and of his memory in all generations and his laws paramounted all other law in that they abode the test and terrour of conquest and remain to the jewes in nation and religion the same that they were even to his day . yea as when he lived he was the peoples oracle from god and orator to god a favorite who by the spel of his faith could charm as it were with reverence i write it omnipotence and bind the almighty to peace with his people as god himself intimates in these words let me alone that i may stay this people : so when he was dead god concealed the place of his buryal to hinder their idolatry for surely they would have been supertitious to his memory and erected an altar near his grave that was so real a numen to them when he lived and this god knowing prevented them by concealing it yet i say this moses so adored by the people and so victorious in the conduct of them did render himself maximus legislator by his self-denyal he made no family he gathered no wealth he commenced no regality from this advantage but served god and his charge leaving the compensation to the issue of god's appointment . he looked more at god's glory then his own greatness ; at the peoples peace then his progenies preferment ; and when god revealed to him he must die , introduced no son or creature of his , whom favour , not virtue , fitted to succeed him ; but generously , and justly , deputes ioshuah , one parted , and graced suitably to the office he admits him to , and him , full of the spirit of wisdom . he charges , in the sight of all israel , to be strong , and of good courage ; yea , and as a prophet , assures him god will be with him ; as it is , deut. xxxi . , . so that moses , all things considered , was rightly termed by our text-master , maximus legislator , no law-giver before him ; no law like his in duration ; no justice so unspotted as his , no justicer so venerated as he . the friend ; nay , in a sort , a fellow-commoner with god ( as i may reverently write it ) at the mess on the mount ; or rather the master of requests , admitted near , when all were to keep off the mount. in sum , moses was prefigured christ ; not onely as all types were , but as he mostly , if not solely , was in the office of ecclesiastical despotiqueness , and indisputable legislation . hitherto we have seen him in the temple as the corner-stone , and earthly master-builder of the sanhedrim , or church-fabrique : now let 's consider him in tentorio , as a magistrate civil . synagogae dux , that 's a leader of the people ; for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifies any convention of people ; yea , the very actus congregandi is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : so thucydides , lib. . uses 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and st. basil calls cumulus acervus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , so alexander aphrodiseus calls plenty of milk 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . beza , indeed , upon the tenth of matth. . where mention is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , makes a distinction ; the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he says , are gentium ; the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : judaeorum , but still he agrees , that the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifies a collection ; and so turrecremata confirms it : so that synagogae dux , is , but in philo's words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 leader of the hebrews . and that this he notoriously was , the holy ●ext attests frequently : for , besides god's miraculous endowment of moses , to convince pharoah of his meslage , for the people's enlargement out of egypt ; upon which accompt he is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the friend of god initiated in the holy mysteries . god made him the people's general too in the wilderness , and at the red-sea ; yea , after all to canaan : for he it was , that brought them to that promised land , though he himself entered not with them into it . happy israel , that had such a prince as moses , faithful in all gods house , loving to all gods people , &c. as philo's words are , a circumspect man , equally virtuous in small and great affairs , not greedy of gain , not thirsty of applause , but intent onely upon great advantages to god , and the people , and leaving the lesser practiques to lower minds . this , shortly was moses . thus happy was israel ; yea , and thus happy also was moses in israel , god accepted his integrity , and rewarded it with a renowned life , and a lamented death . 't is from the wisdom of the world , that men study rather to be great , then good ; fortunate , then honest . that heart which is liquored with grace , and ha's the tincture of god on it , will stand upright in the circumvallations of temptations : successes and power cannot palliate lawless liberty , where gods fear denies it . to deal deceitfully , and take men in the snares of their credulity , was no practise of moses the chieftain of israel , gods friend . for though moses was sole in power , yet is he no oppressour of the people : no lord over them against their wills , and to their out cry ; but bears with their murmures , sympathies in their grievances , watches to prevent their annoyance , buries his own lustre , in the reputation of well-deserving , and ha's no other monument , then their memories , in their generations , and gods entry of his merits on the record of his scripture . and hereupon moses being so unparallel'd a magistrate , may well be the example of the prince , to learn both how to govern artlily , and martially ; yea , and have a cogency on the prince , multo fortiùs caesare . for since moses was so soft and trim'd gown-man , onely as some are , who yet do more by counsel in their studies , then armies do in the field by action , undisciplined , and unadvised , but a valiant warriour , as not onely his own books declare , but as iosephus , by tradition , reports ; insomuch , that when the ethiopians invaded egypt , and the oracle directed them to have their armies led by an hebrew captain , to stop their progress . which being observed , and moses chosen for the man , and he so miraculously , and mantully doing it , as iosephus at large relates ▪ our chancellour had high reason , to urge this example , rather on the prince then caesar's , because more energical and potent ; more bold and superative in the nature and proper operation of it . for , alas ! iulius caesar , which i suppose he may obliquely refer to , in regard he was a temporary master of the western world , having subdued germany , gaul , and britain , and dreamed , he was uniting the empires of heaven and earth together , was but a little time lord of those conquests , obtained them by blood and oppression , and of them had far less then alexander had atchieved , before he arrived at caesar's age : yea ; what caesar had , he held with troubles and conspiracies , and at last paid his life for the revenge of his affection , wherein the senators were assassines , and the capitol the slaughter-house : nor did caesar obtain ever after such a marble of himself by the largess of posterity , as constantine the great had , quod instinctu divinitatis , mentis magnitudine cum exercitusuo , tam de tyranno quam de omni ejus factione , uno tempore , just is rempubl , ultus est armis . no such trophy to his memory , but a tacit reproach of his practice , in the inscription under brutus his statue in after-times , utinam none viveres ; caesar , i say , was potent , but cruel ; prevalent , but injurious ; and this made him execrable , and envyed . but moses was an heroick that might have had what he would , god in wrath would have extirpated israel , and multiplyed moses into a great nation : but moses interposes with god ; and mediates for israel ; yea , was contented to be onely what god cut him out for , and general good would quietly permit him to be . and herein he was himself fortior caesare , and his example ought to invite more irrefragably then caesar's did , because caesar could not deny himself , taking what was takable by him . no sooner had the common wealths divisions weakned opposition against him , every potent patrician standing single , and the union of them refracted and subdivided into inconsiderable nothings , but caesar puts in for the whole : no reconciler he ; for then he had been felo propositi , but a subtile tent rather to keep the wound open , till at last he and his party marched in at the breach , victors ; and when he was in possession , then he wins those by love , that would be made loyal by it , and destroys those that were implacable ; and in this he did in his generation wisely : but moses had leave to chuse , and refused ; might have been the prince , but continued still the captain of israel ; yea , when fame surrounding his actions , and consolidating the people to him , rendered him more then probable , sure not to be defeated of their acclamations , and complyings with his establishment , in all this croud of tryal , which bulges and swallows down ordinary mens continencies , and ingenuities . moses stands firm to his veracity , and therefore in all things excels caesar , as a prince , and a souldier : yea , if iustinian , from whom our chancellour cites the pre-alleadged position , be the proper , caesar , he means ; yet moses will still be more swasive with a good prince then he . iustinian did but employ his trebonian , to collect the laws of other men famous in their ages , that is , to bring them into a body , and to render them useful to all occasions , of justice , and accommodation ; and in this work was , though famous , yet fallible . but moses was taught of god to know , and approved of god , to practise the right duty of a king , ex utroque caesar. and that this is so , the testimony of the seventeenth chapter of deuteronomy , the eighteenth , nineteenth , and twentieth verses following will demonstrate , and it shall be , when he sitteth upon the throne of his kingdom , that he shall write him a copy of the law in a book , out of that which is before the priests , the levites ; and it shall be with him , and he shall read therein all the days of his life , that he may learn to fear the lord his god , to keep all the words of this law , and these statutes to do them ; that his heart be not lifted up above his brethren , and that he turn not aside from the commandement , to the right hand , or to the left ; to the end , that he may prolong his days in his kingdom , he and his children , in the midst of israel . which words contain two parts , actio and finis ; the king's action , he shall write him the copy of his law in a book , which is before the priests , the levites ; and it shall be with him ; and he shall read it all the days of his life . and then the king's end in this , as prescribed by god , that he may learn to fear the lord his god ; to keep all the words of this law , and these statutes to do them . this is the analyse of them , but not to be passed over : for though i wave the rabbinique conceits , that this law contained six hundred and thirteen precepts , three hundred sixty five affirmative , the number of the days of a year , and two hundred fourty eight negative , according to that computation they had of the joynts in man's body , which they perhaps conceived the king was to be remembred of , that he might know his life consisted of days , and his body of joynts , which might soon be severed from their contribution to life , and government acted in it . to omit these , and such conceits which learned men have , the holy ghost's drift is , to teach us : first , the order of god's dispensation to majesty . he first gives them a throne , and settles them in it ; so 't is their right . and then he shall write him the copy of this law. princes duties in their oaths , examples , and rules of restraint , are subsequent to their titles , not to puss up princes in a contempt and disesteem of their subjects , whom because they depend not upon , they may use as they list ; but to lesson subjects to look on majesty , as god's vicarage , no creature of theirs ; first , he is seated in his throne , then minded of his duty . secondly , the obligation of princes , as they are deo subditi , and vice deiregnantes . first , to endeavour their own accomplishment , in this literal prescript , to be able to write , that they may write this , that god commands them to rivet on themselves by such means . i confess , possible it may be , that a prince may be letterless , hate , and be wholly ignorant of letters . some have been such , and such not unworthy princes in their actions : for that their memories being vast , and their passions keen , as by the latter they might be impatient to write , as well as impotent ; so by the former , possible to reap the fruit of writing without writing ; and the spirit of god not so much looking at writing , as the means ; as at remembring to do the end : i confess , 't is possible much of the mind of god may be here observed by princes void of letters : but yet in that , writing is the probablest way of durable fixing , and the holy ghost specially enjoyns it , it were good , nay best , the letter of this scripture should be observed , that thereby princes may know the laws of god , and of their government . secondly , in writing themselves , not by secretaries , and other hands , then their own ; but in their own characters , the book of the law ; that is , a copy of the autographon , that lies with the priests of god ; and that so written under their own hand , to deliver to the priest to be kept , inter sacra dei , as god's evidence , signed and sealed by him against himself ; if a violator of it , and the counterpart thereof to have from the priest , signed by him , as the charter of his practise . this i conceive is the meaning of the text , and lorinus is of the same opinion , though i know others think the contrary ; because 't is said , it shall be with him , which his copy delivered to the priest , they say , cannot be . cajetan reads this clause , scribet sibi emendationem legis hujas a●cipiens exemplar à sacerdotibus leviticae tribus , de exemplo optimae , etiam punctis & lineamentis emendato ad differentiam vulgarium librorum in quibus lex non exactè scribitur , & ut ad amussim scriberetur exemplar à sacerdotibus habendum fuisse . and fonseca follows him , adding , that probably this exemplar with the priests was that , which moses wrote ; out of which , the book found by the prophet helchia , in the reign of iosiah , was written . but i rather conceive the former ( yet with humble submission , yea , and without exclusion of the latter ) because i suppose thereby the greater and stronger testimony lyes against the king , in case of violation by oblivion , since as the gospel says , out of thy own mouth will i judge thee , thou wicked servant , and perverse . so from thine own hand may god say to princes , shall your sins be proved and reproved ; oftendam digitum , & debitum , god marshals then our faults effectually , when reason condemns the violation of religion . thirdly , in reading what they have written , and that not once , but often ; but always where duty renews , memory of it must be renewed ; therefore we write that we may read ; therefore read , that we may remember . to write , and not to read ; to write on the sand , or in air , or water , is to write in shew , but not in deed ; for all 's lost that 's so trifled : those fusile , and unstable elements , are not adopted to tenacity , and therefore are not the grounds on which we write . men write on tables , trees , pillars , parchments , papers , metal , and on these they are legible thousands of years , even from moses his time till now , above six thousand years ; whereas then the prince is to write , 't is to write librum è libro , the copy , as the original . cajetan makes four fruits of his reading . first , vt deus timeatur . secondly , serventur legis praecepta omnia . thirdly , non elevetur cur ejus supra alios . fourthly , prorogetur imperium regis & filiorum . god commanded the law to be written that it might be read , and princes are commanded by god to write the law , that they may read it often , and affectionately , with resolution to do it at all times , in youth and age , in prosperity and adversity , in israel , and in captivity , and in all latitudes of impartiality , according to the direct and pat requiry of it . and then lastly , he must read it with a resignation of himself to the power , and a resolution in himself to the practice of it . for so much onely we know aright , as we practise accordingly , that he may learn to do all that is commanded therein ; that is , that knowing god the commander , and all things accumulately , and copulatively , his command ; and himself , though a prince , not exempt by prerogative from his duty , may with a ready will , and unalterable resolution , perform the duty enacted by it . this is in short , the sum of this clause , of which yet our chancellour has a quotation more succinct in the subsequent words , quod exponens helinandus , dicit , princeps ergo non debet esse juris ignarus . this helinandus was a french monk of the order of the claniacenses , he lived about the year , . and posseuinus says he wrote many things , as fourty eight books of the history from the creation ; of the reparation of lapsed man one book ; sermons , epistles , &c. vincentius beluacensis also writes of him , where in his works this passage is , i know not ; nor indeed have i ever seen the authour ; but that it is in them , is more then probable . and his exposition of moses his directory , i take to be very genuine and nervous , suitable both to the holy ghost's intent , and his amanuensis's language . for a prince being caput regni & legum , ought to have in him those vital and animal accomplishments , that may in the nobility of their distribution , supply all the dependents on him . for , as where there are corporal defects , and monstrosity of parts in them , they are thence lessened in the world's eyes , and do all things with much disadvantage ; so much incommodated are they from their minds plebeity . it was a sawcy , and insolent satyre of the antients , rex illiteratus est asinus coronatus : but yet it has the truth of that moral , that kings unlearned are unlike themselves . not gods descended in the likeness of men , but kings descended from the best and most conspicuous of men to be their vassals censure , and the diminutions of the very bruits of people . and therefore philip had good reason to bless the gods , that his son alexander was born to be bred under aristotle , because there was great probability , under so noble institution , he would become worthy his father , and tutor . for parents generate their sons , men in nature , and to be such in title as they themselves are ; but tutors form them , to be worthy and virtuous men , by good precepts , and lovely examples of virtue presented them . and hence it is , that next divine grace , solid and rational intellectuals frequently actuated in affairs , according to the limitations of religion , the nature of times , the coincidence of circumstances , and the laws of respective governments , declare kings kinglyly qualified . for knowledge of duty consists not wholly in the theory of their nature , but in the maturation of their conceptions , to a subserviency to their end . and therefore , though kings may have less proportions of speculative abilities , not so clearly defining and canvassing of justice and courage , as professed doctours in artly faculties may ; yet , they do ever in their aims , and when they do like themselves , excel them in the noblest import of justice , that is , in distribution of it as a blessing , resulting from their crown , as , the flos solis which is enlivened and made conspicuous by it . for the chief end of government is justice , and that being constans & perpetua voluntas jus unicuique tribuendi , which refers to action , according to that of the civilians , he is not just , who is not actively such in the disposition and resolution of his mind and purpose . princes are said to be knowing in the law of their government when they observe laws , and propagate justice , according to humane possibilities , and regal prudencies ; rex , cum sit iudex , sententiam dicturus assumat sibitum prudentiam , &c. since the king is iudge , and as the living law determins right and wrong , it becomes him to be prudent , that he err not in judgment ; and just , that be proportion punishments and rewards , according to the natures of the actions they refer to , in which no favour or affection must be shewed , that iustice be not maimed , faith petreius . now because the laws of god and governments are the best magisteries of princes in this noble craft , and heroick exercise of conscience , the chancellour here puts the non debet upon the prince , telling him , that whatever he pretermits , this he must not do , knowledge of the law ; because without it , a ruler cannot be just , a people not be happy , a government not be durable , a governour not be renowned . the cabalists do hold , that injustice is one of the underminers of thrones , and that canker that eats out the vitality of their permanence , and disposes them to , and puts them into revolution and period : yea , he must needs be unnatural to his good name and perennity , who does not labour to know his duty , and perform it , as rightly he ought , so many being concerned besides himself ( as in case of kings there are , ) and in the rectitude , or obliquity of his actions . helmodas tells , that harald was so famous a king , vt leges & jur a statuerit , &c. that the laws and statutes he made were for the reverence of their maker so venerable , that both the danes and saxons religiously observed them . and since him , those who have followed most the steps of serious knowledge ; in strict justice , have been most renowned . for as to be a man , is to be endowed with reason and understanding ; so to be a king , is to be knowing in the law of nature , of nations , of his polity , haec tria sunt omnia ; and in these , non debet princeps esse ignarus . the law of nature is that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that which is implanted in all creatures . this , corvinus says , is collecta ex praeceptis naturalibus , &c. collected from natures precepts , taught by naturae to all creatures : such as are conjunctions of creatures , male and female , for preservation of their kinds , self-preservation , and all things incident thereto , &c. these laws of natural policy god has chased upon the universal nature of the creation , animal and sensitive , and the characters of them are indelible : the world must cease when they cease , which under their prime cause , are the means of its continuance , in its noblest end , and parts external , living creatures . this law of nature some of the learned do make four fold , lex mosaica , instinctus nature , jus gentium , jus pretorium . possevinus makes it of a five-fold nature , natural , supernatural , mosaique , divine , private . yea , they make the law of nature to consist in those precepts which are purely good , both as to doing of good , and avoiding of evil ; according to that rule of iustin martyr , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and in another place , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . now this law of nature being explicated in the law of moses , and added to by that nomothetique , and despotique authority that moses has , as the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ( as diodorus siculus testifies ) he had learned from the egyptian priests , as the truth of their tradition ( as justin martyr observes . ) the laws of nations , of what kind soever , are but the prudent extracts , and divine comments upon this text ; and the improvement of that natural sagacity , and political discretion , which men of parts , place , and experience express according to the entrusts of god with them . and this being in all places , and in all ages , one and the same in the main , and chief tendency of it , which is preservation of justice , and propagation of humanity in all the emergent and occasional branches of them , which diversifie and spread out into infinities , as men and things dilate and increase , the learned call the law of nations , as the common principles which correspond man with man , jus gentium ; and this is defined to be in praeceptis & communibus notionibus homini peculiariter insitis , vivindi reclam rationem continentibus . this consists in distinctions of mens rights , building of houses , erecting of cities , societies of life , judgments of controversies , war , peace , captivity , contracts , obligations , successions , and the like ; as that judicious gentleman sir thomas ridley has to my hand observed . now because this law is the same to all , in all places , at all times being the instinct of humane nature , and a donary of gods , the natura naturans to the natura naturata in man , therefore 't is called the law of nations , since it links together humane natures and societies so firmly , that there is no unluting , or discementing them , but by a ryot and fray against the peace of god's primary position of them : nor can wars and animosities justifie themselves of any better origen then by blows , and monstrous heats , against the serene and just cognation , and alliance of man with man , and the common principles leading them to union and amity . but this being not the ordinary notion of jus gentium , i proceed to honour it as the custome and observances of learned and reduced polities , which of rude are become civil ; of ethnique , christian ; of discordant , harmonious . and so by the jus gentium , the * imperial laws , ordinarily called the civil laws , are to be understood● these being the laws of particular constitutions , yet are so composed by , and conformed to the laws of nations , that they are deep channels of justice , wisdom , and variety , and are saved in the opinion of the plurality of civiliz'd men , ius civile est quod neque in totum a naturali vel gentium recedit , nec per omnia ei seruit . itaque cum aliquid addimus , vel detratrimus iuri communi , jus proprium , id est , civile efficimus , saith vlpian . now that the aforementioned laws do differ in the objects they respect , the law of nature suits , omnibus quidem hominibus , sed non solis , because it takes in bruits as well as men . the law civil agrees with men onely , but not with all men ( for that we in england , and in other parts , more or less , it is excepted against in the exemptions and salvo's that are allowed against it ) but the law of nations suits omnibus hominibus & solis ; and the civil or roman laws being the amplest and oldest system of humane laws , are highly to be valued , and so are in the empire , nonopportere jus civile calumniari , saith paulus ; and the gloss gives the reason , quia non est pecuniarium interesse , quum sit inestimabilis scientia , p. . in marg . p. doctior . by the civil law , i mean the law of nations methodizd and collected into four tomes . the first whereof is the digest à digerendo , or pandects , from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , containing the works of twenty seven original lawyers , some of which were before christ's time , and the rest in the emperour's days to maximinus ▪ and to this tome iustinian's institutes is added . the second tome , or member of the law , is the code in twelve books , the responsa of the fifty six emperours , and their council , from the emperour adrian to iustinian's time . the third is the authentiques , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , proceeding from the immediate mouthes of the emperours , and so being of absolute and unquestionable authority , this part is called also novella , for that the laws in them are upon emergencies as new matters occasioned new remedies . the fourth is liber feudorum , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which contains tenures of a military origen . i suppose , some make this as antient as christ's time others later , but all very antient . these are the grand records of the civil laws , which are artlyly and amply expatiated upon by the learned doctours in that science , who truly have in all ages proved themselves as great masters of learning , as any the world has had , and have carryed as great a sway in the transactions of state affairs , as any other race of learned men ; such as of old were tib. corun●anus publ. papyrius app. claudius claud. centumna●us sempronis , called by the romans as none before or after him was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 scipio nasica mutius and hundreds of others ; which together with their equals of later date such as vlp. bartolus zasius alciat hotteman hopper who all of them in the words of vlpian declare the civil law to be that quod neque in totum naturali vel gentium recedit nec per omnia seruit . itaque cum aliquid addimus vel detrahimus juri communi , jus proprium id est , civile efficimus . and again , ius autem civile est quod ex legibus , plebiscitis , senatissconsultis , decretis principum , auct●ritate prudentium . these are some of those iura , that the prince here is not to be ignorant in . but the great chancellour , as a common lawyer by profession and preferment , has another kind of law to acquaint the prince with , as he was supposed by our chancellour to be rightful heir of the crown of england , in which there was a peculiar manicipe law. filia temporis , mater paci● , fructus sapientiae , fulcrum regiminis , decus regnantis ; grounded upon six principal grounds : first , the la w of reason : secondly , the law of god : thirdly , on divers great customs of the realm : fourthly , on divers principles called maxims : fifthly , on divers particular customs : sixthly , on statutes made in parliament by the king , and by the common-council of the realm . such a law as that plato describes to be a well-constituted one , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. making the subjects happy and blessed under , and shining as the fruits of it . this is the law of england antient , not onely ultra memoriam hominum , but recordorum , the fruits of experience , in the succession of time , the womb of peace , riches and renown in all ages and degrees ; the centre and stability of all governours , and governments , when they reduced all their circumferences to its punct of justice , which is indivisible . in a word , the amplitude and glory of its monarchs , while they have been ruled by it , dreaded alive , and lamented when dead , because great and good , powerful and just , men in nature , but gods in munificence . in these laws , and in the emanations from them , and the statute-additions to them , the prince is told , he ought not to be ignorant , because the law is the rule of his duty , and ignorantia juris non excusat , neither before god in point of conscience , or men in point of fame ; which is the reason , that wise princes have laboured to know and govern according to the laws of their government , and onely unhappy ones neglected themselves in the omission of it ; and the effects of swerving from the law is legible in the troubles of king iohn , hen. the third , e. the second , r. , the second ; who not guided by the laws , had reigns of war and tumult . the prince then was by our text-master well advised not to be ignorant of the laws , lest he prefer passion above reason , and being carryed away by the euroclydon of his will , forget that pious , prudent , generous rule of practice , which our late martyr'd monarch , blessed king charles commended in those words , i cannot yet learn ( said that martyr'd oracle ) that lesson ; nor i hope ever will you , that it is safe for a king , to gratifie any faction , with the perturbation of the laws , in which is wrap'd up the publique interest , and the good of the community . so renowned king charles the first . but i proceed to what follows in the text. nec praetextu militia legem permittitur ignorare . this is added , to take away all arguments of excuse , which martial natures are apt to make in apology for their artlessness ; they say , it effeminates the mind : did it so in moses , david , alexander , caesar , iulian , constantine , antoninus ? nothing less : nor did they allow all time to their accomplishments as souldiers , schollars they knew they ought to be , and onely could be by study , and learned institution , and the laws of god , and men , as the treasuries of that they read and considered , and this made them calm governours , tender parents , prudent warriours , politique statesmen , victorious princes , and yet continues them in the reputation of heroiques . divide a prince from knowledge and action , curtail him of either of those diadems , and his crown is abated ; by how much either prevails against other , by so much is he propended to the extream , which is the over-reach of virtues mediocrity . and therefore , as i hold a prince ought not wholly to neglect military affairs , but verse himself in , and accustome himself to them , that he may intonate fear into neighbours , not to provoke him to war , or to contemn him in his appearing ; as vainly did the emperour by the swedish king , who was the bravest hector of his age ; no , nor ought he wholly to rely on them , contemning arts and policies of justice and law ; because they direct best how parta & propria conservare , and are the nerves and sinews of success and honour : but joyn them together , etsi milites sive arma propter leges in tuto collecantur , ipsas tamen leges armorum praesidio conservatas justinianus putavit . so salmuth . and how little arms , without managery of wisdom has profited their undertakers , is evident in the fatal consequences of those brutish engagements , which have been ruinous to princes , and their fortunes ; as salmuth has given us many instances to prove the truth of it . and this renowned queen elizabeth resolving in her self , who turned the affairs of christendom upon the poles , of her wisdom and courage , being truly furnished with both ornaments , to a degree symmetrious to her majesty , made her reign renowned , her subjects rich and grateful , her commands absolute and observed , her life prayed for , her death deprecated before it came , and lamented when it came . in a word , left none unsad , but those to whom she justly and honourably was a terrour . and she did this to the amazement of all christendom , and the immortall honour of the sex , by being directed by her learned judgment , to temper her justice with spirit , and her mercy with competent severity , and by employing such spectacle state-ministers , and active martialists , as shewed her a practical monarch , who as she knew how to rule supream , so skill'd the method of her supporting that her soleness by the proper aids and shores of it , laws and forces ; and this was non praetextu militiae legem ignorare . for the fundamental and antient laws , priviledges , and good customs of this kingdom , do not onely preserve the king 's regal authority , ( but are the peoples security of lands , livings , and priviledges , both in general , and particular ) are preserved and maintained ; and by the abolishing , or alteration of the which , it is impossible , but that present confusion will fall upon the whole state and frame of this kingdom . they are the words of the statute , which considered , there is great reason princes and monarchs , especially ours in england , should not be ignorant of the laws , because they are so essential to their own stability , and their peoples security , as nothing can be more ; nay , without them , known and exercised in that quaternion of magistratique method , imperare , vetare , permittere , punire , which contain the virtue of laws , there can be no honour to the prince , no felicity to the people : yea , that prince that is so unhappy , while he intends so nobly , not to be well resented , may use cato's words , though in a little other sense , nihil egisti , fortuna , omnibus conatibus meis obstando , non pro mea adhuc sed pro patriae libertate pugnavi nec agebam tantâ pertinaciâ at liber , sed ut inter liberos viverem , nunc quoniam deplor at ae sunt res generis humani , cato deducatur in tutum . better for a good king to go to a glorious reward in heaven , then live to oblige a graceless , and ingrate people . but god being the onely lord of life and death , is to be attended upon for the issue of things ; which if they be not to princes , as well as other men , such as they would have them ; yet are , in whatever they are , such as god permits , and knows best for them to have them . in the mean time , we must endeavour to do our duties , the prince not excepted , whose part it is , juris non esse ignarus praetextu militiae . a sacerdotibus leviticae tribus assumere jubetur exemplar legis , id est , à viris catholicis & literatis . this is added , to restrain the king for the matters of god , to god's own appointment and institution ; the priesthood was setled on levi by god , numb . . , . and no portion had levi with his brethren , for the god of his priesthood was his portion . now , god to put a dignity on the priesthood , does not onely enjoyn the people to consult the priest , who had the custody and knowledge of the law ; but even the prince , he was to write the law from the original , with the priests , called here the levitical tribe ; not as aben-ezra thinks , to distinguish them from other priests , which were not of the seed of levi : for drusius refuses that , upon the ground that the priests were of the kindred of aaron , who was of the race of levi ; but to keep us close to god's ordination , who made the priesthood the repertory of law-learning , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as philo's words are : and hence learned grotius writes ; hìs vero ratio habetur meliorum temporum , &c. here , saith he , is an account of the flourishing times of levi ; for then all controversies , judgments , difficulties , were brought before , and resolved by them ; but afterwards they declining , and the incomes of the priesthood being great , and inclining the priests to sloth and luxury , it fell out in time , that the learning of the priesthood was translated into other tribes , amongst which there were those that excelled the priests in knowledge of the law : so that the people did not onely wave the levites , but even sometimes the high-priest , and applyed themselves for introduction in the law of god , to those that were learned , though not levites , but lay-men ; saith he , out of maimonides , lib. . de synedrio . though therefore the priests misbehaviour , might eclipse their credit with the people ; yet god's dignification of levi is plain from scripture throughout the whole book of numbers ; and the authour to the hebrews mentions it in the fifth of the hebrews , as an augmentation of it . no man , saith he , takes this honour upon him , but he that is called of god , as was aaron . yea , and plain is it from philo , whose words are , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. do you not see , quoth he , that god the great law-giver , did not commit the preservation and charge of holy things to every man , but to the pure and holy levites . so in another place , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the levite has all the priviledges that pertain to a perfect priesthood , by which men attain the knowledge of the great god , and are in their sacrifices and services rendred acceptable to him . and in another place he gives the reason , why god took such care of levi , and made their habitations , cities of refuge , as well as their offices , the keepers of the holy things of god ; because they deserted all that was most dear and near to them , to attend his portion who is immortal . the priests then were the trustees , to whom the custody of god's law was referred . and therefore princes enjoyned to transcribe the law from their original , were to apply themselves to them ; so under the law : nor is it otherwise under the gospel . for as god under the old law by moses ; so under the new testament by who was faithful in god's church as a son , has ordinated an evangelical priesthood , not less conspicuous , then the aaronick one ; for , as that was ordained of god for men in things pertaining to god , as it is heb. v. . as that was an honour to those that were of it , who were counted god's portion , as that had the dispensation of offering both gifts and sacrifices , and making known the law of god to men , as none were to be of that but levites , persons separated to that function , as that was exclusive of all other worship , till the time of refreshing from its burthen of multiplyed ceremonies came : so the priesthood or ministry of the gospel is ordained by christ , and the ministers in it patrimonium crucifixi , and the tythes in it the ministers right , and all parts of ministry onely is dispensable by them , and none ought to be accounted in the ministry , but those separated to god by canonique ordination . thus they answer each other ; and in one thing the gospel priesthood excells the legal . as it is a more spiritual one , so a more durable one , so a more general one , that brought men to see their god through the glass of types and figures ; this face to face , that lasted but till the substance came . this shall endure , till time shall be no more ; that was limited to the iews : this is indulged to all nations ; the gospel brings salvation unto all men : now , there is neither iew nor gentile , bond or free , but all one in christ iesus . so that the chancellor has done well to expound the evangelique rites by viri catholici & literati . catholici ] this word in all authors is expressed to denote universality ; the physitians call * that which is profitable to allay and sweeten all humours , a catholique medicament ; and quintilian terms universal and perpetual rules catholique , catholici then here is to exclude factious assumption of the office of ministry , without admission , and confirmation in it apostolical , that is , catholique : for no ministry is catholique● , but that which is by church-tradition , catholique reception , apostolique practice , scripture-warrant ; which for ought i know , have read , or i think is possible to be found in scripture-history or tradition , was episcopal , in the sense that our holy mother the church of england practises it from the purest times , and piousest presidents . and then literati , to denote qualifications of the mind to , both understand in themselves their duty , and make others understand theirs also . for the catholique church , which is not restrained to any part or particular of the whole church , either romane , reformed , or greek ; but the whole complex of christians , having christ their foundation , and being the pillar and ground of truth on him the rock , though it may differ in circumstantials ; yet being one in unity of faith , and essentials of worship , and practise of charity , accounts its particular ministry , in a true sense , catholique . and therefore , though the chancellour by catholicis mean the romish priest , excluding all others , yet it is applicable to the priesthood , or ministry of the universal church : of which in cassander's words , it is abundantly enough honour done the church of rome , that it is a small part of the universal church . and no national church is more or less catholique one then other , vbi à capite non receditur per falsam , & scripturis sacris dissentaneam doctrinam à capite christo , a corpore vero non per quamvis rituum & opinionum diversitatem sed per solam charitatis defectionem . so he . so that the officer that the catholique church has admitted to , and empowred with the things of god , the dispensation of his word and sacraments , and other holy parts of priesthood , is successour to the prerogatives of the evangelique priesthood , of which the levitical was fore-runner , and no intruder must be hearkened unto , or admitted to participation in it , who is contrary publicae , antiquae , perpetuae , & universali ecclesiae consuetudini . for saint paul reprobates such interposition as dangerous ; we have no such custome , nor the churches of god. this be enough for catholicis viris . and those the churches of god have always trained up to be , and admitted onely such as be literati ; as learned , without catholique , will be but a factious ; so catholique , without learned , a barbarous priesthood . the apostle's rule is to timothy , study to shew thy self a work-man , that needs not to be ashamed , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , operarium inconfusibilem , one that can hew out fit proportions from the mass of scripture , and orderly set together what he has apportioned for his ministry , to make it orderly and advantageous , not erubescentem , as st. augustine expresses it , as they are that boast of more then they can perform , seeming to be what they are not , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , rectè secantem , that is , carrying himself so , as to hold the truth free from all extreams , as they do that keep the channel , and avoid the rocks on both shores , collatio er go inter dei servos esse debet , non altercatio , saith saint ambrose , in loc . grotius will have it to be similitudo ductà victimis quae certo ritu secari debebant ; and , says he , a man is said rightly to divide the gospel , cum cuique accomodat camonita quae cuique maximè conveniunt , quomodo de victimis aliae partes dabantur sacerdotibus aliae privatis ; which being an act of wisdom , requires learned breeding to direct the workman unto , and in his work ; and upon this ground , as the priests of old were learned in the law , so the ministers of the gospel , whose mouthes are to preserve knowledge , are to be by canon learned , and such the chancellour means by literati , not such as the scientique budaeus laments for being in primorum ordinum sacerdotibus in france , where virtutis doctrinéque praemia in homines latinè infantissimos non singula sedbinae , terna congeri veriùs quam conferri vidimus , qui certè non tam bis honoribus ornati , quâm obruti esse iniquis oneribus videntur . no such drones , and over-grown novices does our text intend ; the holy things of god are under the gospel committed viris literatis . so tully expresses viri literati as studiis doctrinisque dediti literatus & desertus . so de clar. orat. . such , who have much in them , and much written upon them of knowledge of books and men , and of holiness to the lord : of the sword in these mens mouthes , should not that of plautus be true , in eo ensiculo literarum quid est ? but every part of their exhortation and reproof , their information and direction should be rich and full of argument . this is the chancellours scope , to inform the nation , that the christian ministry , though it had the levitical for its president , yet not onely succeeds , but exceeds it . and that the rites of consecrating , or crowning kings , and taking oath of them to perform the laws of their government , and to maintain the rites of holy church , as they will answer it to god , and the evidences of their consciences , and the gospels they swear by , to which the ministers of god , bishops , and others , are witnesses in the behalf of truth , is no lame and lazy ceremony , made up onely of extern pomp , but of necessary and renowned consequence ; which those that vituperate are children , and those that would overthrow are devils ; because therein accusers of antient piety and prudence , and enemies to mankind , who generally have the priesthood in highest honour . this i the rather touch upon , because we have lately been in , and are not yet wholly purged from the lees of those unhappy times , wherein , with many , all antiquity was execrable , nothing pleasing but novelty , decrescebat innocentia in foro , justitia in judicio , in amicitiis concordia , in artibus peritia , in moribus disciplina , as s. cyprian once complained of his time . no law , but lust ; no justice , but arms ; no church , but a meeting-place ; no priest , but a high-shoe , or uncatholique illiterate ; no canon , but enthusiasm ; no mercy ; but ruine . so that truly in our england , there was a kind of reverter ( at least in the menace of the rabble , and their arch●dukes ) of draydlike ethnicism , tun● maximè deos propitiari , cum per cruciatum hominem excarnificâssent , saith giraldus of the druids , and 't was too true of them . but blessed be god , we are in a better state now , the exemplar legis has been tendered the king , à viris catholicis & literatis , and now the eccho of our learned chancellour may humbly present the pre-instanced scripture , chap. xvii . of deuteronomy , as that which is the noblest monitor of the prince's duty , that any where , in any author , in any time is to be found . liber quippe deuteronomii est liber legum quibus reges israel subditum sibi populum , regere tenebantur . this is added , to shew the text-master's love to the prince , in his preference of deuteronomy , and the xvii . chapter of it , for his direction , to be according to much wisdom ; for that it is methodus regiminis quo reges israelis teneri deberent , god's precise determination of the king to that , as his oracle and path to walk by , and in . indeed , i am of pliny's mind , sum ex iis qui miror antiqu●s , &c. i am of their minds , who admire the antients , but yet not so to despise the acquirements of later men and times ; for that were to accuse nature , as spent , and defective to a generous production of rarities , now as well as heretofore . i know there are tracts of policy , and treatises of institutions for a prince , which of late have been proposed to the world with notable art , and subtile insinuations : nor are the later wits less keen , nor their writings less polite , then those of their antecessors : but these are but men that wrote , and what they wrote subject-like them to errours and mistakes . moses , the penman of this , was one of god's infallible secretaries , and he propounds to the king ( that was prophetically regulated and admonished , for israel was yet under moses his regiment ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the noble mean between the iron and leaden extreams how he shall be , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. an admirer of right , a judger of wrong , a propagator of truth , as the best pillars of a durable regality . this , says philo , moses propounds herein , as a reward to the prince that is led by it ; and therefore no wonder , though moses direct to deuteronomy , as his second , and most compleat system of the law. for though there were many parts of holy writ that perswaded the prince to love the law , and to embrace it as the rule ; as that where no law is , the people perish : or that of saint paul , the law is just , and holy , and good ; and if it had not been for the law , i had not known sin . or that of our saviour , who being interrogated by the iews , questions of import , answers them , by referring them to the law ; how is it written in that law ? though i say the chancellour might have illustrated the beauty and use of the law from other scriptures , yet in that he waves them all here , and refers to this book , and this chapter of this book , 't is a strong argument , he thought it the most opposite to the prince's instruction , partem scripturae politicam & legislativam ; as aure●lus his words are . well he knew , good chancellour , that every word of god was good ; but that these were like those of solomon's apples of gold in pictures of silver , the onely words he could artlyly use to his purpose , deuteronomium est quasi incensa , & perpetua concio , e●que de causa mosis , c. . v. . jussit ut novi reges , elegendique describunt sibi deuteronomium , ut discant timere deum , &c. saith a. lapide . it 's true indeed , every book of moses has his peculiar excellency , as it answers some useful end of god in the production of his designs there described : in genesis there is description of god as the enjoyner of the law ; in exodus , of moses the minister of the law ; in leviticus , of the heads and content of the law ; in numbers , of the nature of the people , to whom this law was given ; but in deuteronomy , there is a short recapitulation and conclusion of the law given ; the last words of moses , most pithy , most memorable , most cull'd : and a. lapide says his book was made upon three causes . first , for supply of mortality , because all the old men that came out of egypt , and heard the law delivered on mount sinai were dead . secondly , because moses was now to dy , and being to leave the people of his care and love , he leaves them instructed in the law by this copy , and perfect accompt of it . thirdly , for that the words of rulers and princes have most sway with the people they govern , he leaves them this book , as the lasting memorandum , and iournal of their duty , and enjoyns governours to transcribe it , that by remembring it themselves , and ruling their people according to it , they may be happy and beloved as moses was . for so it follows , hunc librum legere jubet moses , ut discant timere deum & castodire mandata ejus quae in lege scripta sunt . well did moses know the temptations of greatness , that kings are but men in nature , though gods in sacredness ; that power is apt to arrogate a prerogative above mortal restraints , and that the nature of man frail in them , is apt to pervert god's intention in the latitude of their commission . therefore moses claps the clog of god on the king's conscience , and enjoyns him to read and write over the law of him and his government , as he will answer the violation of it through ignorance or perverseness to the god of that law , in whose hand his life and breath is , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. saith philo , that his corrupt nature being awed by god's soveraignty , may by fear and aw of it be restrained from exorbitant rigours , and vain excursions . indeed , as the law of god is the best book ; so fear of god is from the best lesson man can learn. no grace has more of the exaltation of god , and depression of man , then fear has ; and no man has more need to have god's fear in him , then a king that is free from the fear of man onhim . saint bernard makes fear prima gratiarum quaetotius religionis ex●rdium est ; no fear , no religion . therefore the wise-man says , fear god , and keep his commandements , that is the whole duty of man. in the last of eccles. it à est primus in ordine gratiarum sicut paupertas in ordine beatitudinum , saith that father . indeed fear , as it may be objected and accented , as it may be tinctured and byassed , may in philo's words be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , an ill adviser . it may be ionas in our ship cause a storm , and endanger all the serenity of our inward peace : this his fear , the fear of man ; a fear of incredulity , a fear of inverting god's position , making god less , and man more then he is . in an evil fear , forbidden by god , perfect love casteth forth this fear ; 't is a fear of servility , not ingenuity ; the fear of bastards , and not sons : 't is the nail in our heads , after the butter and milk in a lordly dish , which this world's flatteries , and the iael's of infirmity treat us deceitfully , and to our ruine . but holy fear , to fear the lord and his goodness , is the felicity , as well as duty , of not onely subjects but princes : nay , 't is paramountly pertinent to princes , because the onely object of their fear , as a superiour to them , employs it , and as a god to them , deserves it . and this the hebrew phrase here 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , translated to fear imports : for 't is none of those ordinary words the holy language has ; for ordinary fear not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the fear of one , a stranger in a land that is not his own ; as psal. cxx . . nor 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a fear of tristicity : so psal. xxxviii . . nor 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a fear of modesty , like that of youths , who blush for fear , when they come before men of age and worship , iob xxxii . . which we call a running our heads in a hole ; nor 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a fear causing an uproar in the mind , isa. xxxii . . like that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , charged on martha , tumultuaris circa plurima , c. v. nor 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a fear that wholly unmans us , deut. xxviii . . nor 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a fear taking away all hope of acceptance , esay xli . . nor this , or any of these fears , which melt down the spirit , and make a manless fusility in the ponderous and masculine nature of man : none of these is the fear here . that which moses lessons the king to learn from the lord's law , is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is a fear provoking to worship , and draw near to god ; such a fear as argues love and duty , to fear him ●so as to fear him onely , him always , so as to cast down their crowns and scepters at his feet , and to serve his glory with their compleat absoluteness . this is the king 's timere deum , but it has an adjunct and copulation , which makes it both appear to be what it is in truth , and to make the principle from which it is sound in a suitable effect , keep his commandements all the days of his life . this is that which ingratiates the fear of god with god , when 't is seen in obedience to him , according to his declared will , his law , and that in every particular , not one , but all his commandements ; and that not sometimes , and not at o●her times , but all the days of his life . this is to be upright with god , as was king david , then shall i not be ashamed , when i have respect to all thy commandements . this is non currere per mandata sad ambulare in mandatis ; to make god's glory the end of princes lives and reigns . and this is to produce what in our text follows . ecce timere deum effectus est legis , quem non consequi valet homo nisiprius sciat voluntatem dei , quae in lege scripta est . this is well inferred from the presumption of its cause ; to write the law , is the way to remember it ; to love it , the way to practice it ; and to practice it , is to be what the law here is told us to aim at , fear god , and keep his commandements , fully and constantly . this our chancellour calls an effect of the law , because the law is in god's intention , and the ordinary way of his dispensation , thus to dispose kings , as it offers them the rational and religious answering of the end of their power , and his prescript : for philo makes the law as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. god's declaratory of his will , both as to what man may , and may not do . and therefore , inasmuch as fear is a postnate of knowledge , and knowledge the means of ingenerating divine fear ; and this knowledge is conveyed to us by the law , according to that of the apostle , i had not known sin but by the law. not that the law has any efficacy , to illuminate man to an efficiency of holy and reverential fear . for that is true of the law , which saint augustine wrote of free-will , valet liberum arbitrium ad opera bona , si divinitùs adjuvetur , quod ●●t humiliter petendo & faciendo , desertum verò divino adjutorio quamlibet scientia legis excellat , nullo modo habebit justitiae soliditatem , sed inflationem impiae superbiae & exitiosum tumorem . and so in another place , nam & lex ipsa in hoc adjutorium data est illis , qui eâ legitimè utuntur , ut per illam sciant , vel quid justitiae jam acceperint , unde gratias agant , vel quid adhuc eis desit quod instanter petant . whereas therefore the knowledge of what is our duty to do , and not to do , is said to be ●he effect of the law , which teaches us what , and how to do our duty , or not do ; it is to be understood , not a necessary effect , such as follows the cause , but an effect in order , that is , where ever fear of god is , there the law of god , known and observed , has been the ordinary means of producing it , and not onely the ●escue to point us to our lesson , but the instigatour of us to learn and practise it . and indeed , to this end has the will of god concerning man its patefaction in the law , that man might not be under any impossibility of knowing what he is , and is not to do ; nor plead ignorance , when his omissions and errour● shall come to arraignment : and therefore as here is much mercy in god's promulgation , so is there a call to us in it of eternal gratitude . for the law written on the heart , and rivetted in the created nature , would have compurgated god from cruelty to his creature , in punishing the breach of his law , which they had such previous and plenary warning of . but in that he has been pleased to write his ●aw , and our duty , in such legible , and indelible characters , as are learnable ; not to know his will by the law , is to despise god from heaven , and to sin against our maker , and his mercy . to fear then the lord , as it is an act of service to god , so of mercy to our own souls , because it puts us out of fear of his fury ; who is a consuming fire , who has power of soul and body ; and it puts us into the protection of his promise , that no good thing shall be wanting to those that fear him , psal. . . and for asmuch as this fear is as in god causally , so in the law institutionally ; and moses , by the ●pirit of god , directs kings to the law as their academy and oraculary ; because they being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. as philo calls them , are not onely to take care that secular matters be carryed on well and wisely , but also the matters of god and his service . kings and all in authority shall do well to study the law , that they may know to do the will of their lord ; for that is to know god aright , to practicate his fear from a principle of conscience , and holy affection to god ▪ when not to oblige him to be ours , if any act of ours properly could so do , but to glorifie him as our chief good , is the sourse of our service , when we study to know , that we may be ready and regular , in doing what we know we ought , to shew forth the virtue of him that has called us out of darkness into his marvellous light . this , this is to know the will of god , which is written in his law ; because this is perfect charity , which is the fulfilling of the law ; and without this all the notional and grammatique knowledge of the law abstracted from practise of the duties postulated , is but nothing . so true is that of saint augustine , pro bonis operibus sperastiterrenam quandam felicitatem ; impius es , non est ist a merces fidei , cara res est fides , vili illam addixisti , impius ergo es & nu●●a sunt operatua , move as licet in bonis operibus lacertes , & videaris navem optimè gubernare , in saxa festinas . so that father ; and so our lord jesus , if ye know these things , blessed are ye , if ye do them . principium omnis famulatus , est scire voluntatem domini cui servitur . here the chancellour proceeds to confirm what went before , from the consideration of domestique order , which is suitable to the greater polity of kings and people ; nay , of god and man : for in families there is a lord and servants ; the one commands , because he is master of all , and his will is their law : the other obeys , because he is bound , as he eats , drinks , is cloathed , and lives by , and under his master . now in this service , which the chancellour calls famulitium , as after festus he does , servus famulatus , the first and chiefest thing is to know the master's pleasure , and to study , and actually answer it , si● cum inferiore vivas , quemadmodum tecum superiorem velles vivere . and because the will of the lord and his humour was best seen by frequent being in his company . seneca tells us antiently , the masters did admit their servants to eat with them ; yea , and that the masters might see what tempers their servants were of , and what commands could best bear , instituerunt diem festum quo non solum cum servis domini vescerentur , sed quo utique honores illi in domo gerere , jus diceré permiserunt , & domum pusillam rempubl . esse judicaverunt , ep. . servants thus encouraged , the master expected a return in observance ; no dispute , no delay , to be sure no opposition : the servant was , whatever he understood his masters pleasure to have him be , according to that of philo , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the onely praise of a servant , to think no command of his masters slight , but to do all to his utmost pleasure , that he thinks he wills . and therefore god alluding to the soveraignty of earthly masters , says , objuregatively to israel . if i be a master , where is my fear ? vbi est obedientia servi sub imperio domini ? and the apostle , to strengthen the authority of masters over servants , says , servants be obedient to your masters in all things , for this is well-pleasing , and acceptable to god. how holy paul obey in all things ? yea , in all things : suppose he commands idolatry , or murther , or any other sin , is he to be obeyed in this ? yes , he is to be obeyed , but not in the kind of the command he exercises , in the servants disposition , but not in the act of termination to such his command , cum dominus carnis à domino spiritus diversum imperat , non est obediendum , saith saint ierom , and tertullian , who owns this canon , yet modifies it , sed intra limites disciplinae , obey him so far as he obeyes god. ideò romanas leges contemnimus , ut divinae jussa servemus , said the martyr sylvanus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. we worship indeed but one god , but we are loyal servants to kings and emperours , praying constantly for them , that they may wisely and worthily discharge their trusts towards their people , as we profess their people ought to express loyal duty to them . and seneca is positive , that virtuous minds , contra remp. imperata non facient , nulli sceleri manus commodabunt . let stratocles flatter demetrius never so highly , and desire the athenians to pass a law , vt quicquid demetrio regi placuisset , id in deos pium , & inter homines justum esset : yet integrity will not swallow any unjust command , though it dare not disobey by contumacy a just ●ower , while it acts unjustly : but in things that are indifferent , in things civil and prudential , there the master is so absolute , that the servant is bound to obey throughly and constantly , and has no remedy , but to pray 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that god their onely saviour would hear and relieve them . this was the state of servants bound to obey ; yet had they also a priviledge , when they were veteranes and faithful : for then , as they were secundi liberi , where children were , so where they were not , they did in jus liberorum transire . to which probably our apostle alluded , when he made the priviledge of adoption to consist in translation from servants to sonship . this is notably set forth by abraham , in the case of eleazar of damascus his steward , gen. xv . . behold ! to me thou hast given no seed , and one born in mine house ( to wit , eleazar , v. ) is mine heir . this eleazar of damascus so called , because he had possibly either purchased a house at damascus , or had some rule there ( not born there ) is in chap. xxiv . . said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 procurator filius , or gubernator d●mus , in cujus manu relinquam omnia quae mihi sunt , saith rabbi ioseph , filius discursationis , who checks all under my roof . this is he of whom abraham says , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 haereditat mihi , that is , he at present possesses mine for me , and hereafter shall possess mine for himself . now this being the compensation of antient and faithful servants , that they may in time come to this , the principal familique prudence is , to study the master , and to let no word of his fall to the ground , no command of his be neglected ; and this is scire voluntatem domini . for since the servant is in his body , his lords , and has all accommodation from his lord ; what is more reasonable , then that his lord should be , in this world , and in things lawful , all in all to him : so that the servant having no sphere so proper for his actuation , as his masters will , and that will being best observed , by setting ones self to the exact knowledge of it , the chancellour has fitly made it the first knack in the van of service , and that which makes the master pleased with his servant , and with his service as such . legis tamen laetor moses , primo in hoc edicto effectum legis , videlicet timorem dei commemorat , deinde ad custodiam causae ejus , viz. mandatorum dei ipse invitat , nam effectus prior est quàm causa in animo exhortantis . that which our chancellour calls legislator , philo terms 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because laws being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and to sacred purposes , for order and distinction , security and beauty , the deliverers of them to the people they ruled , may fitly be termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; which , though all law-makers deserve not to be ; because , as they may rule solely , yet not be kings , and people , yet by no law : so they having not so much of divine rectitude in their titles and transactions , may abate in the deserts and right to such nominal titles . but moses was none of these ; he obtains power justly , uses it moderately , and resigns it willingly , when god his principal , determining his life , calls ioshuah to succeed him . this , this indeed , was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , nay , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , somewhat above the rate of men ; for , as ●●de habent quaerit nemo , sed opportet habere . so when 't is had ; oh ! to keep to their stipulations is death to them . if violation be more advantageous , no swasion of religion , no fear of losing fame , no disgust of their people , keeps such lawless and boundless natures in aw , they will do what providence prompts them to , and prudence suggests , as a necessary expedient , though they do perjure themselves , and confound all , that laws and policy has distinguish'd ; and all this they do , because the light in them is darkness , and the salt unsavoury . they consult with the false oracles of flattery and self-magnification , and decline god's fear lesson'd in his law. were that , their councellour , they would do nothing under pretence of god , but according to god , not rule , but as he does , suaviter & fortiter ; first with justice , and then with courage , and that by & according to god's law , which directed by god , discovers the soules vanity , and instruct to fear god's power , and love his goodness , as its compleat restraint from enormity . i know god by miracle can instruct kings , as he rained mannah , and raised the apostles from letterless fisher-men , to learned metropolitans , and profound doctours . he can do by his absolute omnipotence what he will , and therefore is not obliged to qualifie princes with fear and observance of him according to the method of nature or art , his will being the law : 't is but say , and do : so the chaos testified a passivity to his information ; nor did in the pre-existent matter ought reside , that had any refractoryness in it . it did not , it could not appeal from his will ; for that had no superiour , no equal . but in that , god now discovers himself to us in familiar and natural methods , and leaves causes to their natural operation , ordinarily interposing no power to suspend or impede the production of effects from causes ; and inasmuch as the effect is first in nature of project , though last in order of time , the cause physically precedeing it : therefore the chancellour advises to get holy and humble fear from the law , which is god's undoubted will to us ; and that which we knowing , and doing , in such knowledge and deed shall be blest . this is the sum of this clause . sed quis est timor iste quem promittunt leges observationibus suis , verè non est timor ille de quo scribitur , quod perfecta charitas for às mittit timorem . timor tamen ille licèt servilis soepe ad legendum leges , reges concitat , sed non est ipse proles legis . our chancellour having wrote great things of holy fear , and made it , that lucifer which shines in the souls firmament , as an effect of god's law read and practised , now comes to limit us to a right notion of it , that we may not mistake its counterfeit for the currant and noble grace of fear ; and this he does , by distinguishing of fear , as a nude and rude passion , from what it is as a complex of graces , and a renovated principle , which makes us commensurate , in such degrees as humane frailty allow , to god's requiry of us in order to his glory , our neighbours good , and our own personal and soulary felicity . for as it is not every medicine that cures , every suitor that succeeds , every valour that is victorious , every speaking that is oratory ; so is it not every fear that is this fruit of the law this favourite of god. there is fear that quivers through a guilty pusillanimity ; there is fear that precipitates to a desperate ferocity ; there is fear that sinks men beneath their station , into the stupidity of dull insects of sensless inanimation ; fear that petrifies , and obdurates to an immobility ; fear that lethargizes the spirits , and makes a man dead , while living . these fears may sometimes be useful , and god by their revulsions work great effects preparatory to the fear of worship and reverence , so often brings the terrour into the conscience , and thereby pricks the sinner at the heart , letting out all the purulency , and impostumation of sin by its lancet ; and that removed , makes a kindly avenue to his fuller work of repentance and conversion . in which sense , saint paul calls the law , our school-master to bring us to christ : because as the school-master cultivates youth , and weeds out by his discipline all the trash , and corrects him for all the wilful breaches of his rules , and so brings him at last into a pliant and regular temper , in which all after proficiencies thrive from their implantation to a great and graceful increase : so does god by toeling the sinner to read , and in reading to be taken with the terrours of the law against the sin he is guilty of ; so dismount and caress him , that for ever after he is a changed man ; that as god did call off paul from his eager pharisaism , and saint augustine from his prophane manichism , by the voyce of his power and mercy effectually touching them ; so does he often do by others , through the ministration of the law ; the threatnings of it being as so many voyces , and counsels of desistance and abhorrence . this saint bernard counsels the sinner to observe , that he may be happy ; fili accedens ad sernitutem dei , sta in timore , si ex timore te feceris illius servum , faeciet te ex charitate amicum suum , & sic aqua timoris commutabitur in vinum dilectionis . but this fear , though it be like poyson , useful by the modification of omnipotence ; yet it is not the fear of those , whom god values jewels , and , as such , will protect , mal. iii. 't is not the fear of god's elect , spuriorum timor , non filiorum ; 't is timor praedae , non probitatis , a fear that preys upon the vitals of ingenuity , and like imbib'd spirits at present refreshes , but after grate on , and overwhelm them , without god sanctifie it to illuminating purposes . therefore this fear quà such being not of stanch materials , and loyal composure , is not able to fortifie against evil , and to provoke to good ; not make the soul as compleat towards god , as the queen of navar 's accomplishments rendered her to the world , when she not onely bore up the degree and estimation of a queen , though she had no kingdom , but kept up her self , and built up the greatness of her son , in spight of adverse fortune ; but it flags , and renders the man that is acted by it mercenary , illiberal , and constrainedly onely good , being so far from enfranchising the soul , that it servilize it , and reduces it to an angustation of perplexity . whereas the fear of god , which moses magnifies as the laws work in the sacred heart of kings , is quasi auriga animae , quasi nauclerus animae , quasi specula animae ; 't is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a salutiferous , but a rare endowment ; and a good prince applyes that of synesius to the fear of god , makes god's fear the philosophy he sets down to , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in ep. . ad herculianum . that which carryes him not phaeton-like , furiously up to the clouds of pride , but christianly , by the safe path of humility , steers him to secure his immortal soul from those exitials that are occasioned by two much either of presumption or despair , gives him a prospect of god in his soul and in heaven , in the throne of his affections , and in the bliss of his divine supereminency ; and by this incoats glory even in this state of mortality ; which a lapide , on those words of the son of syrach , chap. . . blessed is the soul of him that feareth the lord , to whom he doth look , and who is his strength . thus descants on , parata ●st anima ( saith he ) sapientis tum in spe , quia per timorem , & amorem dei sperat certóque assequetur speratam à se beatitudinem , tum in re , quia beatitudo hujus vitae consist it in timore filiali , hoc est , in amore dei , quia per eum fit amicus , filius , & haeres dei , & cohaeres christi , quare ut filius , à deo protegitur , dirigitur , omnique bono cumulatur . thus he . and therefore as it follows in our chancellour . timor verò de quo hic loquitur mosis quem & pariunt leges , est ille de quo dicit propheta , timor domini sanctus permanet in saeculum saeculi , hic filialis est , & non novit poenam , ut ille qui per charitatem expellitur , nam iste à legibus proficiscitur quae docent facere voluntatem dei quô ipse paenam non meretur , sed gloria domini est super metuentes eum , quos & ipse glorificat , timor autem iste , timor est de quo job postquam multifariè sapientiam investigat , sic ait ; ecce timor domini ipsa est sapientia , & recedere à malo , intelligentia job xxviii . recedere à malo , quod intelligentia timoris dei est , leges docent , quô & timorem hunc ipsae parturiunt . in this conclusion of his first chapter , our chancellour has reduced into a compendium , all that he writes concerning the subject of fear , as the lesson of the law to the prince . and , as in the former clause , he shewed what fear the law wrought not as its proper and most noble work , that is , in the effectuation it expresseth to the mind , that is taught by god : so in this does he set forth specially what it is in the useful and proper proceed of it towards a gratious and well-inclined person ; and this he does out of that of the psalmist , psal. the fear of the lord endures for ever : not by a duration of time ; for the absorption of faith by vision , and hope by fruition , determines all fear , as it is in order to beatitude ; for that being enjoyed , fear , the means to it , is lodged in its end ; but the fear of the lord endures for ever , that is , it makes the fearers of god so walk before god , while they are in the way to him ; as that he shall take them into glory with him , and give them a coeternity of beatitude with him , which shall as little cease to be what it is , as his own essence shall : so that he being for ever and ever his united to him by grace , shall in glory also have a being and endurance for ever and ever , or else for ever and ever , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is an accumulate expression , denoting a constant method of god in all distributions of his to men by holy fear , to usher in all their subsequent services . and this is but as the way to that he wages ; whether one or both senses amounts , but to the acclamation of filial fear , which is the oyl of charity , the odour of a sweet-smelling sacrifice to god : so far from being inconsistent with the charity , that is , the bond of perfection , that it is the very charity , that is , the bond of perfection . since thus to fear god , and keep his commandements , is the whole duty of man. and this to do , though it does not paenam non merere , as the chancellour's words are , which attributes too much to the opus operatum , in the desert of it ; since all our righteousness is but as a filthy rag before god ; and when we have done all , we are commanded by our lord to say , we are but unprofitable servants , and so no meritters , but demeritters . yet does the acceptance of god's mercy crown this fear so far in us , that it makes us more then conquerours over our corruptions , which are deservedly our fear , and entails us to the sure mercies of david , which are emanations of fidelity , and munificence inseparable from the fearers of god , because founded upon the veracity of his immutable godhead . and hence it is , that iob his determination of god's fear to be wisdom , and to depart from evil to be understanding , chap. . is literally and infallibly to be understood , as indefatigble ; and the same is expressed to be , because it is the fear of the fontal and durably wise being , and so is objectively wisdom , and it worketh a practice in man suitable to the purpose of god in his creation and endowment , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a holy life is the first and most excellent wisdom , and that which is most clean and acceptable with god ; which is , to abhor and recede from evil , as god's opposite and antagonist in his soul , and so argues understanding , and makes him subjectively wise , because wise , both the witness of wise actions , since sin is absolute folly , as god charges it in his people . my people have committed two evils ; forsaken me the fountain of living waters , and digged to themselves broken cisterns that will hold no water . so that the law of god , in all senses , teaching man his duty , and quickning his endeavour by grace , imparted him to a capacitation of it , and a resignation of him to the conduct and empire of it , may well be magnified by our chancellour in this first chapter ; and the scripture he refers the prince to from the book of deuteronomy , of all other , be the most peculiar to the ends of his instruction in the fear of god , and to the observation of his precepts all the days of his life ; saying of our chancellour , as synesius does of his herculian , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. if there be question , whether there be syrens , so long as your instructions remain , they will put them out of question , since in every line of them they have such melodious notes , as wholly fortescue , the prince , and render him unable for admiration to contain himself . and so i end the first chapter , referring the reader for the fuller satisfaction of the latitude of holy and servile fear , to the many authours , whose works have much of it ; as they may be read in fabian iustinian his index universalis . printed at rome , anno . p. . and in the scholemen , who generally have written as largely on the head of fear , as on any other common place whatever . and so i proceed to what follows in chap. ii. haec ut audivit princeps , erecto in senem vultu sic locutus est ] because i look upon these dialogues , as to the persons , as well as to the matter real , and not fictive : therefore i term this chapter the prince's replication to the chancellour . and three notable things it is considered for : first , the prince's civility , in a speedy repay of his love ; haec ut audivit princeps . secondly , the prince's preparatory pertness , to oppose his youth to this grave and wise chancellour's age , erecto in senem vultu , sic locutus est . thirdly , the prince's pregnant and pathetique reply in the following matter . first , the civility of the prince's return to the chancellour's counsel , is notable : no sooner had he a sense that he was obliged , but instantly he meditates the compensation , haec ut audivit princeps . 't is true , men may have courtesies done them they know not of , and then their detinue of thanks , till they have notice that they have received kindness , is their excuse : but when a kindness is done , and so palpably , as we our own selves , are privy to , and convinced of the reality of it ; if then we either do it not at all , or not seasonably , and while 't is warm and fresh , we do amiss . for , as ingratum est beneficium quod diu inter manus dantis haesit ; so is the thanks suspectable not to be real , when it is cold , and comes by grand paws , and tedious crawlings to those we ow it to . this our prince abhorring , as knowing the suspition of ingratitude , too great a blot for majesty to be branded with , suffers nothing to impede his thanks to the chancellour , but sends by the same post that brought the narrative packet , his recoil of acceptance , haec ut audivit : no arrow as it were , is impelled toward the mark ; no thought ejaculated to its object , no volubility of the eye more quick , then this courtesie of his princely heart , haec ut audivit , that is , non citiùs audivit quam retribuit ; well knowing that of the moralist was true , qui citò dat , his dat ; and that he who makes no haste , has little good will. it is i know , a way , of narrow minds , to defer rependments , in hope that time may wear out the expectation in those that deserve it , as it does the gratitude of those that are deserved of : such spirits are frequent to vulgar births and brats of self-admiration , who are content , every body , should admire them , and as divine , offer to them ; while they in no sort divine , are immunificent ; no rain of their bounty , no sun-shine of their favour falls on their adorers , though their loves to them , make them their costly votaries : all they sow upon this rock , and commit to this cormorant , is sure to be thin come up , though thick sown . and well it were , if such degeneracy were the botch and deformity of men of low degree : but greatness sometimes has been capable of these ingratitudes ; yet the prince takes no president from them that are great , but not good , and have prelation above others in body and blood , but not in mind and virtue . therefore his practice is to haste out of debt , to accept of what is in love presented him , and to represent himself the owner of it : this is the first thing , the prince's acceleration , reddere quod recepit , cui recepit ; haec ut audivit princeps , secondly , the prince's preparatory pertness is notable ; pertness , in that he takes fire immediately upon the stroke , and kindles by his own innate candor , and the vestal touch of his gentle mind ; and preparatory , i term it , because it was ordinated to usher in the subsequent matter , more conveniently . it was the preface to the discourse , and the porch to this pupil-like entertainment of the grave chancellour . erecto in senem vultu ; he does not roughly frown , or rudely grin , but gravely youth out his mind to his instructor , erecto in senem vultu . of all the parts in man , the face we call the market-place , and in the face the eye is the jewel of it . of all the senses of man , sight is the noblest ; not onely because it is the organ even of our clarification in heaven , and that which we see the face of god by , but because here in this world it is the instrument of our earthly heaven , wisdom , and philosophy ; which , in philo's words , have their initiation from no other thing in us , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. then from it as the prince of the senses ; therefore , though he calls it small in bulk , yet he adds , 't is that organ which views the great things of heaven and earth . thus , as phidius , to use his words , did out of every material , make statues , gold , wood , stone , iron , his art appearing in every figure , let the materials be never so trite , that any one that had artly eyes might see him the workman : so god the great architect of man , though he has made him to consist of parts more and less noble ; yet in the minutest and least glorious part has he instanced his matchless power and goodness . alas ! the face , it is but a ball of flesh , and the eye but a bubble , which omnipotence keeps clear and plump ; yet how inexpressible is the prevalence of these to captivate love , to search into art , nay to do actions , second in a sort , to those of miracle and astonishment . but i say no more of the face , for that 's ipsa oris species ; our prince is here said , erigere vultum , and that 's to present his will , quae pro motu animi , infacie ostenditur . so tully , vultus qui sensus animi plerúmque indicant ; and imago animi vultus est , indices oculi ; and as dejection of countenance shews a guilt , which cain confirms after that fraticidial facinus , when god told him his countenance was fallen from his brightness to be sad : so erection of countenance is a token of god's primaeve largess , and nature's innocency resting in us . ille vultus nostros erexit in coelum , & quicquid mirificum magnúmque fecerato à suscipientibus voluit , &c. saith seneca . indeed , the antients , and men of wisdom in all ages , have made the countenance the horizontal line , upon which the idaea's of the mind , and the possessions of the regency there , turn themselves open to a perfect view ; when there is a sad disastre , and a lugubrious uncouthness within , there will be a flag of defiance to joy , and gentleness in the visage ; there will be ambiguus , ac consceleratus vultus , as horace says ; quintilians , distortus vultus , ovid ' s durus , ferinus , terribilis , trepidus , tristis vultus ; seneca ' s igneus , tumidi & truces vultus . there will be ovid's countenance that covets abdere vultus suos tenebris , de r●med . amor. . men , in these cases , will toto vultu in terram procumbere , metam . . they will shew , what troubles the spirit of man hating prevarication has . and when again there is contentment , and a virtuous habit ; when all is placid , and averse to mischief : then there is on the virgin visual table , the inscription of decorus , dilectus , hilaris , ingenuus . then there is ovid's laetus & loquens nitidus vultus , and virgil's virgineus , and placidus ; and claudian's comptus & coruscus vultus . in short , the face and hew of it , is an undeniable gnomon of the interns that reflect their beams of intention , or remission , of brightness , or obsuscation , according to the nature of them in their original : so that whereas our chancellour expresses the prince as erecting his countenance on them ; he concludes him pleased within , and evidencing of it in a conformity of looks on the visual superficies of so composed a soul and sense ; and by erecto vultu , here he means what other authours do by the most benign epithites ; and what ovid , placido vultu respice mea munera . fastor . . and as one that did not addere vultum verbis onely , but praeire verba vultu amicali . he makes way for the main address of his gratitude in the following words , sic locutus est . scio , cancellarie , quòd liber deuteronomii , quem tu commemor as sacrae scripturae volumen est , leges quoque & caeremoniae in eo conscriptae , etiam sacrae sunt , à domi●● editae , & per mosen promulgatae . quare eas legere sanctae contemplationis dulcedo est . these words argue the prince both gentle of nature , and satisfied in reason and judgment ; that as by the one he accepted the counsel of age , so in the other he owns the gratification of youth , in the firm perswasion of the chancellour's arguments to be valid , and his quotations scripture . and to make his ingenuity more transparent , i shall first observe his assent to the canonization of the book , out of which the scripture-counsel is taken ; deuteronomy , that , he owns to be sacrae scripturae volumen . secondly , his recognization of the laws and ceremonies in it as sacred , because part of the canonique scripture , leges & ceremoniae in eo conscriptae , etiam sacrae sunt . thirdly , his mention of the authour of them , god , à domino editae . fourthly , his notice of the instrument of their promulgation , moses , et per mosen promulgatae . fifthly , the conclusion he subjoyns , deduced from the preconcessions , quare ea● legere sanctae contemplationis dulcedo est . these , as the oratorious and pious preliminaries to his weighty subsequent reply , are worthy notice . but yet i proceed . sed lex , ad cujus scientiam me invitas , humana est , ab hominibus edita & tractans terrena : quò licèt moses ad deuteronomii lecturam reges israel astrinxerit , cum per hoc reges alios ad consimiliter faciendum in suis legibus concitasse , omnem effugit rationem , cum utriusque lecturae non sit eadem causa . this clause has the nerves , sinews , and ligament of the prince's reason in it , and had need of athletary and masculine arguments to resolve and repel it . no doubt , the law of god which moses proposes , is that which has an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in it self , and ought to have a more then moral swasion on men , nay , a divine empire over them , to believe , embrace , and follow the prescript of it ; the reason is , because flesh and blood is non-plussed , and has no rampier to raise against the battery of its divinity ; god does assist it with such an inseparability , that no wit of man shall hold out siege against it ; but if he be not sealed up to the day of destruction , shall yield up his reason and prepossessions to it . no doubt therefore , but israel's king would hold himself concerned in a punctual consistency to it . god , whose the spirits of kings are , was in it , and he dinted the edge of it , to cut through the oppositions of all argumentation against it . and therefore it was capable to teach the fear of god in god's method , and to the proportion of his requiry , because he fitted it to that end . 't was mighty , through god , to dismantle the strong holds of satan , and to rescind every obstruction that adversateth that end of god. it had a mighty authour , god ; and a mighty minister , moses , and a mighty appearance with thunder and lightning ; and thence ought to have a mighty power with kings , to teach them how to rule men under god , that they and their subjects may live with god for ever . but , sir chancellour , quoth he , saul's armour will not fit david , nor will the prerogatives appropriated to this one onely law , be appliable to all , no more then the scribes and pharisees come up to moses , because they sit in moses chair : moses was a man mighty in word and in deed , his law was written by the finger of god ; the statutes and appointments of it were contrived in the divine mind ; and no wonder , if they directed to god their center whence they originated : no wonder , though they taught the kings that were to be , what they might , and might not do , and possessed them with a fear to do the contrary , and with a care to do their positive injunction , in reverence to god the enjoyner , and to the injunction , as a part of his worship . all the scruple is , how humane laws that are made by men , subject to like infirmities with others : perhaps , tyrannos , truculent , prophane , per jurious . how these so weak and wicked should arrogate the authority of god , and command indisputable obedience to their laws . and how kings that are holy , pious , and beloved , should be reasonably thought to read them , or be obliged to conform to them ; since qualis causa , talis effectus , shrewdly presumes the laws of violence and injurious contexture and impression like themselves . this the prince objects , as holding himself not so strictly obliged to peruse the laws of england , since they are but humane in their subject matter , and earthly in the objects that they respect . and this concludes the second chapter . chap. iii. at cancellarius , scio , inquit , per haec quae jam dicis ( princeps clarissime ) quant● advertentiâ exhortationis meae tu ponder as qualitatem quo me non infime concitas super inceptis nedùm clariùs sed & profundiùs quodam modo tecum disceptare . these words bring in the chancellour , acknowledging both the candor in the prince , and the favour of the prince to him ; which he the rather here mentions , because good counsel , and noble precepts , have not ever such returns from pupils on their tutors . 't was rare counsel that seneca gave nero , in his book de clementia , which he says he begun and continued , vt quodammodo speculi vice fungerer , & te tibi ostenderem perventurum ad voluptatem maximam omnium . and yet , though it had the sublimest strains of rhetorique love , and pathetique zeal to his aggrandization , that it might polish the roughness , and attenuate the superbity of his nature tending him to practices , as victorious over passion , and as obliging to subjects gratitude ; as augustus his was , whom he brings in as justly glorying , praestitisti , caesar , civitatem incruentam , & hoc quod magno animo gloriatus es , nullam te toto orbe stillam cruoris humani misisse ; yet had he no other answer but death from that patricidial monster . but blessed be god , our chancellour having to deal with a sweeter nature , and receiving from him better proofs of radicated virtue , gives him this due encomium in the exordium of this chapter . and that he does by several gradations . first , he salutes him as a prince most excellent ; not as great , but good ; not glittering in the vest of royalty , so much as in the virtue of meekness and ductility ; in maxima potestate haec verissima animi temperantia & humani generis incomprehensibilis amor , non cupiditate aliqua , non temerit●te incendi , non priorum principum exemplis corruptum , quantùm in cives suos liceat experiendo , tentare , sed hebetare aciem imperii sui ; as seneca wrote to nero. and then secondly , not setting light by the grave and pithy suggestions of his experienced state-minister , who had with loyalty and love asserted his rights , partaken in his misfortunes ; and now for his good , affectionately imparted himself as he was able to him . this had been but like heady and grateless youth , which is apt to neglect and forget great deserts , and grave deservers , which the attique laws censured ; as val. max. lib. . c. . witnesseth , and which all ingenuous natures abhorred . but in that he does accept the counsels , and consider them , magnâ advertentiâ , intently and with a fixation of mind , to be conducted by them , and to admit them to a regency in him , argues him a high favourer of virtue , and one that bespeaks the chancellour to continue his service to him , and that not in the ordinary way of daily astancy , and appearing at this court ; but of diligent study to consider , and of faithful resolution to impart , what he conceives fit for him to know and do ; yea , and to convey this to him by a method of effectuality and perspicacity ; that by delighting him with the method and pleasure of the congress , he may be enamoured with , and surprized by the potency of the reason ; and thence be formed into such a composure of honour and honesty , as may for the present make him the darling prince ; and in future , promise and perform him , if god see fit , the renowned king of his fathers subjects ; which , that he may by this means come to , he proceeds to direct him as follows . scire igitur te volo , quod non solum deuteronomii leges , sed & omnes leges humanae sacrae sunt . quo lex sub his verbis definitur , lex est sanctio sancta jubens honesta , & prohibens contraria ; sanctum enim esse oportet , quod esse sanctum definitum est . here the chancellour shews , that though the laws of god mentioned in his word , and deuteronomy as part of it , be primarily , and per se sacred , because they immediately come à fonte saecro , and are the issues of explicated divinity , there being a kind of patefaction of god in the wisdom and order , the reason and necessity of them , to preserve natural religion , civil justice , and social harmony ; yea , and to dispose men by their oeconomy , to glorifie god , in adoring him as supreme , and securing his from the sacriledge of our insolence ; and though god has implanted such majesty in his laws , as is not in any humane law in the world , abstracted from it ; ye● are all laws which derive their force , à lege naturae ( and those that do not , are no laws , according to that of the schools , * nulla lex humana habet vim legis nisi in quantum à lege naturae derivatur ) and are honest , just , possible , according to the custom of places and times , advantageous to common profit , and plain . these as regulated by the eternal law of which they partake , inasmuch as from it they are inclined in proprios actus & fines . these though humane , in regard of their makers , and in regard of their tether , they respecting humane conversation and order , yet are sacred , and do refer to god , as their authour and justifier ; yea , they having a respect to that which is god's definition , order and charity , according to philo's notion of them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. yea , and being nothing else but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the narrative of the regular and devout lives of the patriarchs , before the law on mount sinai was published , there is good reason to call and account the laws of every government sacred , and severely to punish the violent and obstinate contemners of them . si quis adversus ●as fecisset , s●cer alicui deorum cum familia pecuniáque esset , was the romans judgment ; and saint paul's further , he that resists shall receive to himself damnation , that is , shall have a sentence in his conscience , in praejudicium futuri judicii . that the laws have ever been accounted in all nations sacred , is not onely evidencible from the nature of laws , which point out to man his duty , both to others and himself : from whence philo terms the law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as he does the king , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , adding , that as it is the duty of a king to command what is to be done , and forbid what is not : so is the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the manner and mode of doing and not doing it , the propriety of the law : and hence the law ( deriving its descent , non populorum jussis , &c. not from the peoples power , or from the iudges judgments , but the rule of reason and nature . and again , hanc sapientissimorum fu●sse , &c. i see ( saith he ) the law to be the judgment of the wisest men , not flowing barely from the conceptions of humane nature , nor issuing from any sect or number of men , but some thing eternal , the wisdom that governs all the world by commands and restraints . ) not onely from this ought the law to have great esteem , but ever had amongst all nations in all times . they called the law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the lord of men ; adding , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a sinner against the law is a fugitive ; and when craesus asked pittacus , what was the greatest thing ? 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , meaning the laws which were written on the barks of trees . plato calls the law , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the invention of truth . ficinus in primo leg . platon . derives the laws by minos , lycurgus & selon , from three gods , iupiter , apollo , minerva , power , clemency , wisdom ; this argues the dignity of laws ; and plato terms them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , plotinus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a power or faculty containing all harmony , the soul of the body politique ; and ficinus on him , says , legum major est quam syderum authoritas ; and plutarch said much of the laws , when he wrote the laws , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the laws always gives the first place in the common wealth to him that does just things , and understands things profitable to mankind . and in another place , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , yea , they were so exact in observing their laws , that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , was gospel with the antients , be their learning and power what it would be . pausanias replyed therefore to one that asked him , how the laws came to be so fixed , that no man durst endeavour their change , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. because the laws are lords of men , not men of the laws . hence the laws , as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , all men have subjected to . the egyptian kings , nil agebant propriis affectibus , sed omnia juxta legum decreta . alcamen refused the gifts offered him by the messenians , quoniam si recepissem , inquit , cum legibus pacem habere non poteram . pysistratus , though a tyrant , being accused by the areopagitae , for violating the laws of solon , submitted to the judgment of that senate according to them . augustus caesar , when he had violated the law of adultery , by him made , in beating the adulterer with his daughter , whereas he should have delivered him over to the law , was displeased with himself ; and when he cryed out to him to forbear , because he violated his own law , augustus forbore , ashamed , aequum tamen ducebat non minùs se quam alios legibus parere , as fulgosus words it , i might be endless in quotations of this nature ; but i refer the readers to other places of his commentary , where i more largely prosecute this : concluding with that of the moralist , hujus opus unum , est de divinis humanisque verum invenire , ab hac nunquam recedit justitia , pietas , religio & omnis alius comitatus virtutum consertarism , & inter se cehaerentium , haec docuit colere divina , humana diligere & penes deos imperium esse , & inter homines consortium , quod aliquandiu inviolatum mansit , antequam societatem avaritia distraxit , &c. whereas then the chancellour says , laws are sacred , and adds , lex est sanctio sancta jubens honesta , & prohibens contraria ; what doth he but speak , what god and nature inspires him concerning it ; for laws being the inventa deorum , and the universal suffrages of nature , propagating good , and impeding evil , are so deservedly accounted sacred , as nothing can be more , because they are from the sacred being , example , authority , and tend to a sacred issue , god's glory , and mens good . which considered , though the moral law once delivered by god be absolute , and no dispensation by man can be allowed for the breach of it ; yet is there a kind of second power , next to the positive law of suspension , latent in the nature of man , and that by god's permission , as it were authoritative , which may be exercised besides , though not directly against that unalterable law , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. later constitutions , that better see the defects of former , are to be preferred before those that preceded them , saith modestinus . for else emergent virtues would be without reward , and vices without punishment , because they , as omissi casus , being not in the ordinary canon ; and must on that ground be passed over , as if magistrates were unconcerned in them . and this evil prudence , and self-preservation , the supreme law , next that other , obviates , and that warrantably . philo says government is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a various and prudent adaptation of man to times . as a sea-master does not always steer one course , nor put out alike sails , but varies and alters , as the seas and winds , and his marchandizes , and men occasion ; and as a physitian does not always give one dose , but varies his prescript as the patient changes , by intentions , remissions , repletions , all to health : so should a governour order his affairs , as he sees best according to emergencies , regarding publique good , and mens profits . and this seneca makes a most notable care of a governour to prospect , so that he must needs no other eyes but his own to direct him . and hence is it , that as he proposes laws , ad docendum , as well as imperandum , yet he improbates plato's long laws , preferring short laws soon learned , and easily remembred far beyond them , and cryes out , nihil videtur mihi frigidius , nihil ineptius quàm lex cum prologo ; yet does he suffragate to the use of additional laws to those that are constitutional and primaeve , according to the requiry of extraordinary occurrences , which surely but for this , would be such an hiatus , as would swallow up all gods and mens constitutions . for though it may be disputable , whether the world does senescere vigore ; and many , on both sides , have variety and reason for their adhaesions for and against it ; yet is it out of doubt , that the world , in the acceptation of it for men , the noblest part of it , do every day decrease in virtue , and with their new fashions , new habits and diet , introduce new vices ; which , if not caution'd against by laws , ( slips cut out of the whole piece of pristine wisdom ) all that is sacred and civil , will quickly be absorp't and therefore as fabius cunctator was by the romans called imperii scutum , because he taught them the way to master and ruine hannibal by not fighting him , and for that was called by iornandes , prima redeuntis & reviviscentis imperii spes : so true subsequent laws , woven out of the materials of legislative wisdom , which the antients had , and we from them received the principles in . these i say improved , are rightly termed reviviscentis sapientiae naturalis indicia , the amputations of vice and eradicators of pestilent annoyances , and magistrates that carry them on to these ends indisputably to be adored . and therefore that king amongst the bramins , that made the law against the venery of women , by enjoyning that every wife should be burned with her husband , was an eternal benefactor to the nation whom he governed , and to the successions of them : for whereas their lust satisfiable by others , better as they thought then their husbands could , made them poyson their husbands , to enjoy their leachers , and so filled families with degenerous broods : his law drew them , for love of their own lives , to do nothing against , but all things for the lives of their husbands , that they themselves might also live with them . and this was the break-neck of that leachery ; and so a good instance , that even by the light of nature , there is a latent power in governours wisely to enact such laws , as times , places , persons , and occurrences shall require ; and such enactions being sacred , ought as such to be obeyed , and that upon the ground that they are sanctae , because they do sancta jubere & honesta , & prohibere contraria , and have no name above their nature , but answerable to their appellation , according to our chancellour's words , sanctum enim esse oportet , quod esse sanctum definitum est . this i conceive is added , to discriminate just from unjust government : in just government , a just law is the rule , that teaches unicuique quod suum , est tribuere , and impedes and punishes whatever is contrary to it ; that makes god and his right , mens aws , and expects their zeals to appear asserters of them ; whereas other governments set up wickedness by a law. nay , are set up to be what they are by wickedness ; such a government is that of the turks , and was that of the mammalucks . now as the government is , so must the laws of its support be ; for holy and righteous laws will no better suit with unrighteous power , and unjust manages , then old cloth will with new in a garment ; or new wine with old bottles , to use our lord's comparison . that then , which the chancellour intends , is , that things ought in nature to answer their definitions ; and if laws be defined holy from the holy sanctions , they are presumed to command , and the contrary to them , to forbid : then the laws ought to be preserved in their account of holy , from forbearing enactions that are diametral to honesty , and of evil report . and on this ground the laws of england , since christianity , have not onely eliminated foolish laws , like those of the argives , that women when they coupled with their husbands , should put on beards ; or that of the romans against their manumitted servants ; or that of the lacedemonians , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , men should not suffer their mustachio's to grow . not onely have the laws of england avoided fond enactions , but also eliminated all ethnique laws , and dr●ydize customs ; yea , and the reformation has since refined things , which in , and under popery , had at least negative legality , as dispensations for leachery ; and all this upon the chancellour's rule , sanctum enim esse oportet , quod esse sanctum definitum est . again , lex est sanctio sancta jubens , & prohibens contraria , is the definition of all authours according to truth it self ; as is proved from the fore-cited authorities ; lex , not onely à ligando , from the obliging nature of it , because none are exempt from its cogency as a rule ; but also lex à legendo , quia publicè legatur ut omnibus notus sit . for though of late laws have been printed , and the laity educated to read and practise them ; yet in the elder times , the laws were onely read and proclaimed from the authographon of their entry , that all might at their peril take notice of it ; which was one reason , i conceive , that magna charta being declaratory of the antient common-law which obliged all persons , was wont to be read not onely at the county town by the sheriff , but also in churches once a year at least , that all persons of what degree soever , though they could not read , or might not , if they could read , come safely to the sight and perusal of it , might hear to know it . sanctio sancta ] not consensus populi , but sanctio principis . for , though plato's rule be much to favour of people in formation of laws ; yet he fixes the sanctional power on the prince as inseparable from him , as god's vicar , and under him legislator , and so our laws do also . for the enaction which gives being to the law-statute , is the kings ; the consent of the estates is but sine qua non . the divinity of the king's unction derives a sacredness on the law ; subjects co-operation is but to frame them into useful methods , and to draw them to be obeyed more willingly , because consented to by their delegates in their passing . and to render them more probable to be just and wise , when so many peers , of honour and learning , spiritual and lay , and wise and worthy gentlemen , consider of , and consent to the enaction of them . iubens honesta & prohibens contraria . this i said was added to distinguish between law and law ; for 't is not the outward sanction onely , but the internal virtue , and the excellency of the end and drift of sanctions , that makes them obligatory and cogent on men to obey them . and therefore , if a law should be any where made like those fore-cited , or like that which lilius giraldus , out of herodotus , mentions among the babilonians , that the native women should once a year couple with forraigners , for their recreation and content , that ( as it were ) they might the better bear the company of their husbands and countrey-men all the year after . this law , i suppose , being so hard and obscene , so dishonest , and so unnaturally putid , would have no force on men and women further , then to make them suffer for disobedience to it ; for since the laws of every nation are to accommodate the people of it in their way to virtue and serenity , according to that of the orator , constat profectò ad civium salutem , civitatúmque inc●lumitatem , vitámque omnium quietam , & beatam , conditas esse leges . that the magistrate is a worded law , and the law a silent magistrate , as tullie's words also are , and that his work chiefly is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. to consult and put in execution things good , generous , and just . considering i say this , there is great cause to look that laws be made as laws ought , to the promotion of things honest , and the impediment of immoralities . for saint paul , in saying the law is just , and holy , and good , did but point out to the natural endowment of law , and those three glorious attributes of god , which the laws emanated from , and were regulated by . and hence is it , that abstract these ends from laws , and they are no remains of god in man , but have the monstrosities of corrupted nature , and execrable contradiction to god , in his intent and purpose of giving them to men ; and instead of being the lines of manuduction to heaven , they are bonds of iniquity , and conducts ● his dishonour in natures violation and distortion ; and some have thought the statute of . h. . c. . h. . c. . h. . c. . h. . c. . not to have been founded upon such piety , and justice , as laws ought to have been , and therefore they were soon repealed ; it being a good rule , alteri detrahere sui commodi causâ contra naturam est , & sic injustum , saith grotius out of tully . and thereupon considering the precise rule of our lord's , making justice the completion of the law , and the prophets , and finding many mens actions , in administration of law diametral to it , i cannot but bring in here learned budaeus his complaint , who makes some men even in their justicings , so far self-admirers , and self-seekers , cum , si ad veritatis normam , & ad simplicitatis evangelicae praescriptum exigere jura velimus , nemo sit tam stupidus quin intelligat , nemo tam vecors quin confiteatur , si urgeas , tam jus & fas hodiè , & jam diu in sanctionibus pontificiis , & jus , atque aequum in legibus civilibus , & principum placitis desidere , quam christi rerum humanarum conditoris instituta , ejusque discipulorum ritus ab eorum decretis , & placitis , qui craesi & midae acervos , bonorum finem esse putant , & faelicitatis cumulum , adeo si justitiam finire nun● velis , quomodo priscis auctoribus placuit , quae jus suum unicuique tribuat , vel nullibi illam in publico invenias , vel ( si dicere id mihi permittam ) culinariam quandam dispensatricem esse , ut fateamur necesse est , sive nunc imperitantium mores spectes , sive civium inter se & popularium affectus . so that grave parisian chancellour . by all which it appears , that laws are then onely sacred , when they are to purposes sacred , and enjoyn what god and nature dictates them to ; when they answer the end of their institution , and are conform to the principle whence they actuate , which being just and good , becomes thereby accounted sacred , because officious to man in his religious , civil , and social capacity ; for , sanctum esse oportet , quod sanctum definitum est . ius enim describi perhibetur , quòd illud est ars boni & aequi . cujus merito quis sacerdotes nos meritò appellat . this definition of the law , ars aequi & boni , is celsus's , and vlpian from him quotes it ; this the gloss well explains , jus est ars . first , ut dicas definitum jus in genere , & sic est ars , id est , scientia finita quae arctat infinita . for art is nothing else , according to porphyrius , but the finite learning of things infinite . secondly , it 's called ars arcta , it is artificium hominis , nam auctor juris est homo , justitiae deus , that is , though god give the rule for justice , yet man fits and disposes the method and way of its convoy and application to men , and so 't is art ; and then aequi & boni , that is , it appoints that which is aequam & utile , good and lawful in it self , useful and beneficial to man. this the gloss . now this delineation of the law of equity , which is the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the principle and fountain of all good , as antiquity terms it . it is fit , it should be further considered ; the philosopher calls jus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that evenness that intercurs the extreams ; adding , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. if injustice be inequality , then iustice must be equality . and he says , it consists in proportion and comparison , when both rewards and punishments are suited exactly to the merits and demerits of men , and when magistrates in administration , incline neither to the right hand nor to the left . i know , there are learned men that criticize between jus and lex : by jus they understand that natural obligation on man , which the hebrews called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and by lex , constituted positive laws , which they called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , quod justum , ut quis accipiat ratione scripturae aut legis aut consuetudinis . but this learned grotius does not approve of , but shews ius and lex , have a promiscuity of use , and homonymous sense in authours . and therefore i take ius and lex to import all one ; and though gaius disjoyns them , omnes populi qui moribus & legibus reguntur , partim suo proprio , partim communi omnium hominum jure utuntur ; yet there want not instances of lex his acceptation in good authours , in the large sense of ius . and so i know our chancellour intended it , since the laws of particular polities , being extracts from the natural law , and conducing to presentation and order , deserves the definition of ars aequi & boni . cujus meritò , quis nos sacerdotes appellat . here is a ternary of emphasises ; one , in cujus merito ; another in quis ; a third in sacerdotes . the first refers us to the law thus beneficial to mankind , as meriting from it , and having praise , as its debt , not donary . i confess , the phrase cujus merito , though in some sense it may be opposed to cujus gratiâ , a good orators phrase ; yet here it has an identity of sense with it , and lessons us to return praise to desert , and glory to virtue . god himself accounts our praises , a worship of him ; he that offereth me praise , glorifieth me : and men are by nothing more pleased and retributed then by praise . oh! to hear well , is the deliciae vitae and aqua mirabilis , and the aurum potabile that all brave spirits digest contentedly . m●ursius in his book , de gloria , has given us a large account of the virtues of men , as their titles to the glory ascribed to them : and camerarius , after he has set forth homer by such eulogies as are even hyperbolique to rhetorique , concludes in this superaddition , that above sixty famous men commentaried on him ; and that eustathius , who extracted his laborious work out of them , onely is now visible , of those many and famous writers . and yet though near four hundred years before herodotus , and one thousand before ●liny he wrote , or two hundred and seventy years after the trojan war , according to porphyrie ; since which there is no authour so antient among prophane ones : yet all this tract of time , and variations of men , he has for his work sake been honoured . neque tamen magis vitam conservari , & ad juvari igni & aquá , quàm omnem eruditionem hujus poëtae monumentis manifestum est , saith camerarius . here 's a cujus merito , with a witness , better then that of sons and daughters . for whereas few men live in them many ages ; some , not an age ; the best , not to much above twenty descents . this homer , though blind and ignoble by birth ; yet in the perennity of his wit , has had praise in above twenty centuries of years . this is the first emphasis facti dignè memorati & descripti . the second is , emphasis personae , quis : this is not quis nescientiae , but eminentiae , a man of name not to be triobolarly prolated . and this was vlpian , neither he that was a sub-tutor to alexander , and master of his rolls , and one of his circuit , and itinerant counsel : nor that other , a tyrian born , and , for his learning , made the emperour adrian's deputy in france , and slain in an uproar there . but our vlpian was , domitius vlpian the famous lawyer : he is the quis , in budaeus his determination . the digest tells us , where he calls the lawyers sacerdotes , to wit , the first of his institutes ; and the gloss on it gives the why he so calls them . quia ùt sacerdotes sacra ministrant , & conficiunt it à & nos cum leges sint sacratissimae & ut jus unicui que tribuit sacerdos in danda paenitentia , sic & nos in judicanda justitia . indeed , the laws of old were under the custody of the priests , as the onely men of honour and fidelity ; and cressolius gives a good reason of it , id sapienter machinata est divina providentia , &c. the wisdom of god , saith he , in the modelling of the holy tongue , has so providentially ordered it , that the same word should signifie priest , and prince , endowed with great nobility ; that when the word priest is named , the mind of man might be lifted up , and exercised upon the thought of some excellent and truly noble person . for since the law is ars aequi & boni , and all matters and men are to stand or fall by it : 't is reason , that sacred jewel should have a sacred servitour , and protector , whom neither favour or fear should be suspected to corrupt . and to preserve this from defection , and the opprobry of it , no means being continuable more probably effectual , then virtue of soul , and nobility of descent , antiquity chose to the priesthood persons thus qualified . alexander ab alexandro , has reported the customs of all nations thus to do ; and tiraquellus , his learned commentator , has added to him in this kind . diodorus siculus confirms this , lib. . c. . and when plato would have them begotten in holy marriages , what does he but intend they should be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , be nobly endowed with blood , and educated , that so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that both from their nourishment , institution , and descent , as clemens alexandrinus phrases it , .. . for , according to pythagoras , they thought 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that noble note they would have upon the priesthood , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , saith the philosopher , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; without which to determine differences , and distribute justice as gods to men , congregations of men cannot subsist , marsilius ficinus on plato's conviv . amoris , p. . has told us the office of these priests as heathenly , they were venerated , 〈…〉 officia deo amica sint , quâ ratione deo homines amici fiant , nos deccant , qui amoris charitatísque modus ad deum , ad patriam , ad parentes , ad alios tam ad vivos quam ●d defanctos sit adhibendus . and hence it may be the egyptians observed for long time that law , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. no king reigned but as priested . the same law had the greeks in some parts , as pluta●ch confirms it . vlpian's appellation then of sacerdotes , as applying it to lawyers , was in relation to the old priesthood of the iews and heathens , who committed all their sacra to wise and well descended men ; who did not make a profession and gain of the law , but did rectifie the peoples errours by their learned integrity , which budaeus , on this word of the pandects , thus expresses ; siquidem sanctissima res est civilis sapientia quemadmodum autem apud antiquos sacerdotes sui , singulis diis consecrati erant , qui de futuris atque agendis , consulentibus responsa dabant , sic venerandi illi jurisconsulti , omni genere literarum instructissimi , gratuitam non quastuariam jurisprudentiam habentes , in publicum quotidiè prodeuntes , unicnique civi consulentes , se antiquo instituto praebebunt , & tanquam oracula justitiae promebant . so he . whereupon athenaeus tells us , these were termed the heroes , and rightly too ; for they were propitious to communities , and nothing studied themselves more , then to be fitted for usefulness . but how the chancellour should apply this to men now a days , though lawyers , i not well know ; unless in that sense , that they do sacra scire & docere : and if sacerdotes they must be , they can be onely sacerdotes brevium deorum , as varro calls some , and gyraldus after him . it is true indeed , learned hopperus says as much as may be for them , when he says they were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and sophoi , as sempronius by the romans was , because they had a concentration of the philosopher , the priest , the lawyer in them , tum quia eà scientiâ praeditus est , tum quia sibi praesit ut philosophus , reipubl . ut jurisconsultus , sibi & reipubl . ut sacerdos . but as learned a man , as he , tells us , whatever the antients were , and how great their deserts were ; yet though some of their successours in time , answering them , ought to be answered in suffrage of honour from men to them ; others ought not to be ; the great parisian chancellour is the man who reproaches some of his contemporaries , disciplinarum omnium non modò ignaros , sed etiam contemptores , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , quasi omnem literarum elegantiam nitorémque dicendi perosos , doctrinis humanioribus abhorrentes , rusticos , invenustos , illepidos , hircosos . thus he . but i forbear more of this ; though i think the chancellor's etymologie will not agree to the name , as it denominates universally the men , and is exegetical of them ; for they do not always sacra dare , nor do they ever sacra docere . ferdinand king of spain knew that ; for when he sent pedrarias vice-roy into the west-indies , he forbad him , iuris consultos aut causidicos secum deducere ; adding the reason , ne litium semina quae illis regionibus nulla erant , ab ipsis importarentur , & pernitiosâ contagione pacem illarum ac tranquilitatem interficerent . the like is reported of the pannonians , that when matthias corvinus their king , sent for the best civilians out of italy to set over them , they requested the king to send them back again , and so he did , ad lites eorum ingeniis natas sedandum . nor did our sacerdotes trulier , sacra dare , or docere , here in england ; for in h. ds time william york , and robert lexington , pretended , as justice itinerants over the land , to reform justice ; but instead thereof , exacted great sums of money from the subjects for the king , contrary to the law. so did thorp , e. . berners , e. . line , yea , all the judges , except mettingham , and beckingham , qui non abierunt in consilium impiorum , e. . ) were sentenced and executed for baseness and bribery . so r. . there was but one skip with qui solus inter impios mansit integer , saith sir hen. spelman ; yea , in h. . his time , empson and dudley were as faulty as any miscreants before them , and thereupon executed : so that the name of sacerdotes , as they do sacra dare & docere , in their etymological import is , not infallibly due to all our late jurisperiti , as to the antient prementioned heroiques . though i know many of them have , and deserve to be remembred as brave and couragious men ; especially such as judge hales for his fidelity to queen mary , judge montague in hen. . and edward the sixth his time ; yea , and before them all , many of the late judges , serjeants , and other professors of the law , some of which yet living in great honour and dignity , suffered for their loyalty , whatever the savageness of the late troubles , by fine , imprisonment , sequestration , and other severity , could possibly express , to their eclipse and diminution ; notwithstanding all which , their loyalty and consciences kept them close to the principles of integrity , which they are now deservedly compensated for , in the peace of their consciences , the favour of their sovereign , and the love of all good men : which is a sufficient ballance to the levities of others , as well elder as later ; and gives me the just occasion to assert a truth , to the honour of god , the king , and the nation ; that the laws of england , distributed by the reverend judges , are with more integrity , and impartiality , accommodated to the people then in any part of the world , laws are : nor is there any nation under heaven so void of corruption in judgment , as england is , wherein the judges chosen for virtue , knowledge , and gravity , descended mostly out of knightly families , and endowed , for the most part , with great estates . neither need , nor possibly almost can , those circumstances considered , be suspected of favouring any thing , but justice in their judgments ; nor fearing any thing , but to offend god , the king , and the law ; if otherwise then according to their oaths they should do . and hereupon i shall use the psalmist's words , blessed are the people that are in such a case , and who do receive the law , à talibus sacerdotibus . sacerdotes , then , in a borrowed sense , judges and lawyers are ; but in the true notion of vlpian , and our fortescue too , i suppose lay-men were not intended to be expressed by it ; for they did militiam potiùs quàm literas administrare ; but in all parts , both of france , normandy , and other nations , men in civil judicature were , till e. . his time , ecclesiastiques ; and till then 't was not onely nullus clericus nisi causidicus , but nullus iudex nisi clericus . and when the judges of the courts of common-law were clergy-men , they would not suffer any usurpation upon the common-law , saith sir edward cook , to their honour . by sacerdotes then , vlpian , from whom our chancellour deduces his instance , meant the flower and prime of men , whom the antients expressed by names , alluding to their employments , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; the latines , sacerdotes , curiones , orgyones , and other the like , of which gyraldus writes ; and all to shew their dignity and duty , to whom the mysteries of law , justice , and religion , to god and man , were delegated . quia ut disunt iura , leges sacrae sunt quò eas ministrantes , & docentes , sacerdotes aplantur . in what sense the laws are sacred , i have heretofore shewed , and that is as they are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the invention of the gods , and from them delivered by wise-men , as demosthenes his words are , as they are so prevalent over men , that they do what is just of their own accord ▪ without their rigour over them , as agesilaus said , his subjects would . and when they have such a reverence with the ministers , and dispensers of them , as glanvil writes of in his time , tantae aequitatis , & suae celsitudinis curia , &c. when , i say , these that do jus dicere , though not dare , ) the judges are such ) then as the laws are holy , so do they deserve to be accounted reverend and worthy ; though not priests , yet priestly men , fathers for wisdom , oracles for integrity , and sanctuaries of every excellent thing ; because then they have the duos sales sir edward cook mentions , necessary to their ingrediency , salem sapientiae nè sit insipidus , & salem conscientiae ne sit diabolus . and how great jewels such men are , cressolius has notably in his anthologie , p. , , ad . observed . a deo enim sunt omnes leges editae ; nam cum dicat apostolus , quòd omnis potest as à domino deo est ; leges ab homine conditae qui ad hoc à domino recepit potestatem , etiam à deo constituuntur : dicente auctore causarum quicquid facit causa secunda , facit & causa prima altiori , & nobiliori modo . which words contain an irrefragable argument , for the sacredness of humane laws made by a lawful power . for the chancellour being to deal in a nice point , wherein carnal reason , and interests in religion , is apt to byass beyond , and besides the one and onely mark of truth ; the right fixation of which , having a strong influence on practice , and carrying a not to be retunded argument of duty , to be obedient to the laws of powers for conscience sake . this so necessary to prevent murmur and rebellion , which first by derogation from , then by insolency against magistratique power , threatens , if not enervates it , our chancellour backs and confirms from scripture and reason . from scripture , that of saint paul , rom. xiii . . let every soul be subject to the higher powers , for there is no power but of god ; the powers that be , are ordained of god : whosoever therefore resisteth the power , resisteth the ordinance of god ; and they that resist , shall receive to themselves damnation . this scripture i have ever held the magna charta of power , and because it hath such a pat and direct aspect on the supportation of it , pride and treachery have ever discharged their witty canon on it , to batter , or at least abate the obligation of it : nor were there ever more dangerous glosses , and religious cheats , put upon the literal truth of it , then of late by some of our seduced pretended zealots , and their theological enthusiastiques . for though the apostle has guarded this canon of so great concern , with all possible strength , through which nothing but levelling fury , and anabaptistical treachery can possibly break ; yet have as great endeavours been made by men of more pretended sobriety , as could well , by wit and ill-will , be machinated . but this scripture has , and i hope , ever will hold its own with all sober christians , as well of these , as of the primitive ages ; and so saint augustine defended it against the donatists , who would disobey magistrates , upon pretence , that god was rather to be obeyed then they ; which was true , but not in their sense ; and then boast , they suffered for conscience , and so were martyrs , i say , as he reproached them , saying , non ergo qui propter iniquitatem , & propter christianae unitatis impiam divisionem , sed qui propter justitiam persequutionem patiuntur , ii martyres veri sunt . and again , potest esse impiorum similis pana , sed dissimilis est martyrum causa . so that divers orthodoxly amongst us , and by name , and very early , when the poyson of it did but pullulate , the late learned bishop of chester . so that considering , what is in the text , and what has been said upon it , one would wonder , what confidence of man durst own so reasonless a principle , as prophanation of this text , endeavours to set up to the ruine of all governours , and confusion of all government . for , first , the apostle being to preach a doctrine necessary for the suffering times of the church , under ethnique princes , and rigid step-fathers , terms them yet powers , and powers ordained of god ; and then knowing , men-sufferers would be tempted to stand upon terms , when they had multitudes to back them , and so would raise a purpresture against the design of god in his churches clarification by suffering , and on the waste , and to the nusance of the lords of these earthly soils , publishes obedience and subjection to them . why ; they are powers , and higher powers then to be coped with , or resisted by any their subjects , while they command things lawful and just , actively , when otherwise , passively to be obeyed ; si contrà proconsul jubeat , non-utique contemnis potestatem , sed eligis majori sevire nec huic debeat minor irasci , si major praelata est , saith the father ; yea , and as there is by this rule a latitude of obedience , so of persons , every soul , not one , and not the other , but all , high , low , rich , poor , christian , heathen , master , servant . let every soul , saith saint paul , hinc jam assumenda est fides tua tanquam scutum in quo possis omnia jacula inimici extinguere , saith the father . and the reason of power , to be in all things , and by all persons obeyed , is ratione ortus & authoris ; 't is of god , appointed and commissionated : 't is of god , his eminently ; mens in magistracy derivatively . now this the chancellour proving , in behalf of powers constitution , extends to powers expression . if magistracy be of god , and laws be made by it , for the ends it self was constituted , then laws are of god , because effects of that power which was ordained by god : so that scripture is an assertor of humane laws as from god. and reason seconds it , whatever the second cause does , the first cause more singularly and nobly does : magistrates are the second cause of laws , and they are of god , their first cause : therefore laws made by them are of god ; by men his delegates , whom he empowring , as he is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the soul that enliveneth all , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the husband and father , that begets and support every thing , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the principle and fountain of original wisdom , as philo's words are ; enables , to make wisely and exactly to see obeyed the laws they so make , as the candle lightning argues the sun , the enlighter of it much more light , and the fountain of the candle light ; and the earth producing food for man , argues the earth , the maternal cause of man so supported : so in laws ; what magistrates , as the second cause , do , is by , of , and from god , their first cause . and hence is it , that the philosopher says of god , that he is not blessed from one good in him , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as he is the general nature of all . and so far as these refer to their first cause , god , are indispensably to be obeyed , upon penalty of that which the next verse calls damnation , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . quare josaphat rex judae ait judicibus suis , judicia quae vos profertis , judicia dei sunt , cor. xix . & vobiscum deus in judicio . this is added to confirm the preposition , for iehosaphat was a very holy king , chro. xvii . , , , . and , by god's direction , i believe , gave this charge to his judges ; the intent whereof was not so much to incline them to care and integrity , from fear of his severity , and ill resentment of their miscarriage ; but from consideration that they were quae dei sunt acturi ; yet the judgments they passed , were vice dei : therefore they should do as god would , were he himself on the bench ; iudge righteously , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , says the septuagint , that is , ye are temporary gods , and are such as have reputed infallibility . take heed , do nothing rashly , nothing contrary to evidence , nothing for favour , fear , or wrath . remember kings are properly iudges , and iudgments properly belong to them from god ; and when kings depute iudges to bear part of the subalter● burthen of government , they are taken into a near conjunction with kings ; for the same conjunction that is between god and the king upward , is between the king his iudge , downward , said our once english solomon of famous memory . this scripture puts a great dignity on judges , and calls for a great circumspection in their duty to god and the people they sit upon : for though it was primarily and personally spoken to iehosaphat's judges , who judged by the mosaique law ; yet inasmuch as the words are , that god is with them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , all judges that have 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , are within in it , one way or other , and there is a duty on , and a reverence to them , by virtue of this scripture . and this wise princes apprehending , constitute the best of lawyer● , both for learning and integrity , judges , such as pomponius mentions , servius sulpitius , neque enim magis ille juris consultus quàm justitiae fuit , itaque quae proficiscebantur à legibus , & à jure civili , semper ad facilitatem , aequitatémque referebat , neque constituere litium actiones malebat quàm controversi as tollere , saith budaeus . and such as caius aquilius , itá justus & bonus vir fuit , ( cicero writes of him ) ut naturà non disciplinâ consultus fuisse videatur : ità peritus , & prudens , ut ex jure civili non scientia solùm , verum etiam bonitas nata esse videatur . fond judges are to be taught their notes , as nightingales are by their mothers , and to make musick as they do , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. not for favour , or affection ; nor for reward , or advantage , but for pure iustice sake , and in obedience to god , their king , and the laws . for the laws are regulae permanentes , non nutantes : and as they punish bribery , and passion , as in the fore-mentioned examples is made out ; so have they punished easiness , and unjust lenity , as a blemish to justice , and an usurpation upon her . justice ingham paid in e. the first his time , eight hundred pounds for a fine spent on building the clock-house at westminster , for razing a roll in an action of debt recovered against a very poor man , and making the thirteen shillings four pence thereupon entered , six shillings eight pence ; which justice southcot in queen elizabeth's time , remembred catelyn , the chief-justice of . for when catelyn would have expressed such a like mercy to a poor wretch , southcot denyed assent to it , saying , he meant not to build a clock-house . ex quibus ●rudiris , quòd leges licèt humanas addiscere , est addiscere leges sacras , & editiones dei , quò earum studium non vacat à dulcedine consolationis sanctae . this is a good inference , and carries a great argument to the study of humane laws , that they are , in a sense , god's laws , because made by god's power , and to god's end , order , and justice ; and therefore as study of gods the primaeve and original law , whether natural , national , or mosaique , is the best adjument to the understanding of those humane laws , which are formed from them : so the comfort , delight , and benefit , which men have by the one in such degrees , reflects on the study of the other , as makes an ample compensation for the time expended about , and impended on them . for though in the laws of nature and men , there is mysterious abstrusity , which toils and troubles the learners brain , in perscrutating and understanding them ; the effects whereof are visible in the morosity and separation of their students , from the pleasures of conversation and diversion ; yet are the events and issues in comprehension of them to such degrees , as are consectaries and rewards of double diligence , very grateful , and perceptively congenial to the expectation of those excellent minds , who after busie disquisition into them , reap dulcedinem consolationis sanctae . there may god be seen in all his emanations and bounties to man , in the work of the world , in the harmony and consent of creatures , in a natural worship of god , and a noble conservation of themselves , in the various expressions of virtues and vices , according to the differences of climates and tropicks , under which nations are , and the accidents of their changes , subversions , discoveries , and laws , in the prevalencies of interests , which hurry up and down , sublevate and depress persons and things , as they are acted by the furies and concerns of their entrigo's and composures . these , and such like particulars , learned by study of the laws of nature , nations , and countreys , do so enrich and fortifie the mind against penury and ignorance , which the divinity of it abhors ; that truly 't is not possible to be a stranger to god , the chief good , and to be ignorant of the wisdom that is above , while we study that , which is revealed of that wisdom , in these several things , and in the traditions of them to us . hence the m●ralist lays down a notable rule for the chief thing , a wise-man is to propose , erigere animum supra minas & promissa fortunae , nihil dignum putare quod speres , quid enim habet dignum quod concupiscas , qui à divinorum contemplatione quoties ad humana recederis , non aliter caligabit , quàm quorum oculi in densam umbram ex claro sole redi●re . now this attained , and a man so rarified and abstracted from vulgar feculencies , how can this , effected by study of the laws of men , be less then dulcedo consolationis ; not that dulcedo consolationis is bound up in them , quâ such ; for so they do merum corticem hominis tangere , as they are humane , and have man for their scope and circumference , since in his capacity they amount to vanity and vexation of spirit . but as they are directions and manuducts to god , to whose wisdom and power all these are subject , and in whom they are what they are , and as they inable the mind to understand it self , designed to serve its principal , and by every exotique advantage , to be improved to its principals , glory , and dignity ; so the knowledge of them affords dulcedinem consolationis . nec tamen , ut tu conjicis dulcedo hujusmodi causa fuit ; cur moses , reges israel , deuteronomium legere praeciperat ; nam causa haec , non plus reges quam plebeios ad ejus lecturam provocat , nec plùs deuteronomii librum quam alios pentateuchi libros legere , pulsat causa ista . here our text-master prevents the mistake of moses his intent in this prescript to the israelitish kings , that deuteronomy is referred to , because it , in the matter of it , or in the intent of god , relates to the pleasure of a king more then other men . for god and moses in it takes no notice of this ; 't is an argument which , by the bye , has a superaddition comes in , like that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , our lord mentioned , matth. vi . . that which god and moses from him commends in deuteronomy to the king , is the utile dulci associatum & conjunctum , the holiness , the justice , the conformity to god , which a holy and divine soul counts its chief comfort , and that peculiar erudition in the method of kinglyness , which from that book entry is perspicuous and knowable . for though all the parts of scripture are full of instructions , and savoury precepts , directive to man in the latitude of his duty , and holy meditation will , by an effectual chimistry , drain from them spiritual succulency : yet none are so fitted to a king , as those parts of it which treat of kingly matters ; these words , in season , have the beauty of apples of gold in pictures of silver ; all parts alike , all parts of them beauteous . and therefore 't was not the sweetness of meditation , nor the particular affection that moses had to this book , as his ioseph , that made him specially refer his love and direction of the prince thereto : but quia in deuteronomio , plus quàm in aliis libris veteris testamenti leges inferuntur quibus rex israel populum regere obnoxious est , ejusdem mandati circumstantiae manifestè nos informant , that is , as i said before ; because in deuteronomy , as the second thoughts of moses , the laws formerly delivered but in part , and , as it were , confusedly , as the emergent occasions produced them , is compleated and digested into a fit and formal method . and the prince that follows them , will know how duritiam multarum legum ex aequo & bono moderare ; for as it follows , quo & te princeps câdem causâ non minus quam reges israel exhortatur , utlegum quibus populum in futurum reges , tu sis solus indagator , nam quod regi israel dictum est , omni regi populi videntis deum typicè dictum fuisse intelligendum est . still there is a perfect coherence in our text , every thing ushers in its fellow , every antecedent word its subsequent , and that upon a reason of order ; for in that moses did not write this law as a prescript of israel's kings , and determined the direction to them , in the line of their order , and succession of their government ; but made it morally typical of all governours , and governments , who thence should take pattern . our chancellour tells the prince , the direction of the law in deuteronomy , will reach him , as well as the kings of israel ; and that god having given the law as a counsel and prescript to all kings , will require the breach or neglect of it from all kings , as well others , as israels . indeed , some things there were delivered to the iews , which were appropriate to them , and determined with their oeconomy , the rites of their priesthood , the judicials of their civil government , was literally limited to them , though there was some fiber and string , as it were , of moral duration and influence in them also : but for things that relate to conversation with god , men , and ones self ; that , being moral in its nature , was adapted to the iews as prior in time to us : but not more obliged by the bond , or priviledged by the franchise of it then others their successours . and therefore as our lord renewes the precepts of old by his gospel mentioned matth. v. and saint paul says , what is written , was written for our instruction . so may i say , in this case of the king , as referred to deuteronomy , god intended the direction there to all successours to the first kings in their kingship , and to such enlargements of governments , as time should discover , and power and prudence erect ; and having done this , the counsel or command there reaches all in their duty to understand , attend , and obey it . and therefore the chancellour proceeds . autunc non convenienter utilit érque proposui tibi mandatum regibus israelis latum de eorum lege addiscenda , dum nedum ejus exemplum , sed & ejus authoritas figuralis te erudivit , & obligavit ad consimiliter faciendum de legibus regni quod annuente domino haereditaturus es . this the chancellour concludes with as a reddition of the premises , with an appeal to his reason , for justification of his service to the prince's accomplishment therein ; no vain ayrie romance , no nugatory delight , no sordid mendication is preferred by our chancellour ; those would weaken , not fortifie , the prince's mind ; and beweed , not cultivate it to an artly trimness ; that which he promotes , is apparently worthy . 't is the law of god , nature , nations , and what is as becoming him , to observe as any of these , because these all brought into , and become the law of his government . now this so antient , exact , approved , idoneous esteemed , as he conveniently , so profitably presenting to him , was a good office , without all doubt or peradventure : many things , experience tells us , are convenient , but not profitable , ( if profit be calculated according to the common notion ) many things are profitable , but not convenient : but this being profitable for the nature , and convenient for the season , deserves to derive an honour on the giver , and oblige the receiver to a gratitude . and with this he ends his third chapter . chap. iv. non solùm ut deum timeas , quò & sapieus eris , princeps colendissime , vocant te leges cum propheta disente , venite filii , audite me , timorem domini docebo vos ; sed etiam ut faelicitatem , beatudinémque ( proùt in hac vita nancisci poteris ) ipsae leges ad earum disciplinatum te invitant . here the chancellour prosecutes his precedent argument for the laws , by shewing , that the laws of government , and especially those of england , the marrow of all the fore-mentioned laws , do not onely instruct princes in the way of religion to god , and of justice to men ; but also of self-conservancy , by a well-ordered virtue , and a through-paced prudence , to attain temporal felicity of state and mind . and the better to possess the prince with the opinion , that this the law does , he engages him to the belief and tryal of them by these gradations . first , in that he complements him , as princeps colendissimus , he does bespeak him to love and follow the law as that was has all the learning of right living , and just governing in it , and that which makes men submit willingly to , and venture resolutely for him , men being apt piè sanéctque colere naturam excellentem & prastantem , as tully has it , and memoriam beneficii colere memoriâ sempeternâ , as the same orator : for though nobilissimus , and clarissimus , may make men dreaded and awed ; yet colendissimus supposes a virtue , which seises on the reason of man , and aws his conscience , and thence works a divine veneration , performed to a prince , as a mortal god , whom religion commands to honour , because good , just , merciful , as well as because great , terrible , and not to be resisted . secondly , in that he proposes the laws of government , as founded upon the law of god , nature , and nations , to be prescriptive of all virtue , accumulated in the fear of god , the beginning of wisdom , and applyes that text , which king david spake as a prophet to the law , as hers , in his mouth ; come my children , hearken to me , i will teach you the fear of the lord. words of weight and wisdom , like those the moralist calls for , non meherculès jejuna esse & arida volo quae de rebus tam magnis dicentur , neque enim philosophia ingenium renunciat : for the psalmist is no dry bone , that lives not in pathetiques , without a miracle ; his words here do not so much se , ut res ostendere , but when others are oratorious to no purpose , but to enchant and seduce , to cog and over-reach their auditors , by the lurch of their own credulity , his animi negotium agitur , non quarit ager medicum eloquentem sed sanantem , as the same moralist goes on : and therefore these words that he transplants to so good purpose , are much to be heeded , since they propose the counsel , command , and practice of a prophetique divine king , to the prince , that the chancellour supposes god has appointed , and the men of england ought in due time to have accepted their king , and as such to have valued him . thirdly , in that he works upon passions of love and desire , which the prince , as man , and young , might have eager set on felicity and blessedness , as attainable by this fear of god , wrought in him by the law. this is to decorate , and introduce the law into his love , by that lata porta , which is august , and by an entertainment of amplitude . indeed , the chancellour herein seems more happy , then seneca thought himself , when he was discoursing of plato , mille res inciderunt , cum fortè de platone loqueremur , quae nomina desiderarent nec haberent ; for whereas that rhetorician had an excellent person to speak of , but by exility of words failed in a reddition of him commensurate to his merit , and his mentioners intendment and ambition , to evidence , our text-master , as writing of a better subject , the laws , then he did of a plato , who was but a man , passant through the zodiaque of mutability and infirmity , neither wants words to wast his matter in , nor matter to ballast and carry his reason to his readers perswasion ; but having temperamentum ad pondus , produces it to a very serious and savoury purpose , telling him , that though life was short , and felicity in , and beatitude after this life , was the instigation and reward of all endeavours in kings and commoners , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that princes must devote to god altars of iustice , temperance , magnani●ty , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not of gold and silver , but of virtue , which they rather accept . yet this so truly the mistress and minion of all persons perfections , and perswasions , was lodged in , and acquired by the irritation and irradiation of the laws . for in that the laws have the precepts of virtue practised , and vice abhorred , and in that , serenity of soul , and success in affairs associates , and fame and heroique canonization succeeds their practical punctuality , what can be more truly asserted , nor more really assured a sequacious and virtuous prince , then that he living according to the laws , shall be made an amor & deliciae humani generis by them , and attain an elysium , not fictive , but real , his hearts wish , not the multa vota quae sibi fateri pudet , as seneca expresses it , but the pauca quae facere coram teste possimus . such desires he may obtain of god , by such a demeanour of , and conforming himself to the laws , as solomon had granted , when he wisely asked it , a wise and understanding heart ; such as hezekiah prayed for , let there be peace and truth in my days ; ad hunc disciplinatum te leges invitant , saith our text. philosophi námque omnes , qui de felicitate tam variè disputabant , in hoc uno convenerunt , viz. quòd felicitas sive beatitudo , finis est omnis humani appetitus . this is brought in to compleat the laws to the purpose of putting the prince in possibility , and possession of felicity and beatitude , by following the direction of the laws : for they do not make a man guess , and look upon them by rote , as we say , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. all men may as well do this as wise men , says aristotle ; but give a man an exact and perfect view of , and direction to , yea an inheritance in them . for as the mind makes the man in whom it resides , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as the same philosopher lays down the position : so the laws score out the features of beatitude and felicity , for those are consistent onely with virtue , and justice , which they also specifie . the philosophers therefore who were the antient nomothetae among the greeks , acknowledged the sum of all the wisdom revealed by the numina , and acquirable by men , to consist in felicity and blessedness , the adequate end of virtue , beyond which no man could , no man did ever wish ; and though seneca condemns them , as all other things , under that seeming hard sentence , tota rerum natura umbra est aut inanis aut fallax : yet in his . epistle , as he recites the various opinions and definitions of philosophy , and philosophers ; so does he conclude , stude , non ut plùs aliquid scias , sed ut meliùs . and this to follow him in , there are two things that are to be touched upon in this clause ; the persons produced , the actions they are reported to do their conclusion ; philosophers are the men , disputation concerning felicity and beatitude , their recreation and employment ; fixation of their consistency in virtue , that their consent and agreement . philosophi , these were not onely lovers of wisdom , but men , penè divini , compared to others , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , omni-scient , as theodor. in plato asserts ; and socrates confirms divine ; the ground of philosopy being admiration , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as it follows . philosophers must needs be admired , as the onely men of profundity and miracle that were almost not understood by men , but thought gods in the likeness of men . and hence ficinus makes plato in all his works , proposing nothing so requisite to a philosopher , quàm copulam ex fortitudine pariter temperantiáque conflatam , ut per illum alta petantur , per hanc non spernentur humilia , & utrimque nihil unquam nimis aut audeas , aut metuas . plotinus makes a philosopher so compleat , that he is not conversant with any speculation beneath , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a crafts-master in the cause and being of them , which he calls , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plutarch accounts them so exact , that he enjoyns the young man that is but saluted such , to be careful to avoid all indecency , least the jest of menedemus be applyed to them , that they came to athens to school wise ; after became philosophers ; further proficients then orators , able to utter their conceptions with applause . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , at last rude , and utterly vain , swollen with arrogance and pride , which was no fruit of philosophy , but the errours of them the philosophers , since philosophy taught , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. every thing that is good , and necessary concerning the gods. yea , he commends socrates , as grave and good speaking from a right judgement of the causes and natures of things . philostratus tells us the indians did much honour to phylosophers , and tryed them severely before they approved them for such ; and the phylosopher , in making a phylosopher to enquire , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , what does he less , then make it divinity , and the practicer of it divine . so that whatever was possible to be beloved , and admired in man , being concluded in them , we may well fix them for men of remarque ; and as such , record in our minds their memories , for so the oratour characterizes philosophers worthy , is qui studeat omnium rerum divinarum & humanarum vim , naturam , causasque nosse , & omnem bene vivendi rationem tenere & persequi , nomine hoc appelletur . the disputation is next , many men of many minds , and all men so far in love with their own shadow , that they , from different apprehensions , proceed to different determinations , and so to oppositions , heats , and civil wars , which fill the world with contests , and hurries ; and , in the end , looses science in passion , and reason in opposition . aristotle , he makes felicity to consist in such a satiation , as arises from the presence of some useful virtues , righteousness , courage , wisdom , &c. joyning with them corporal goods , as health , strength , which some call , bona viae ; but beatitude he terms 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the greatest of goods , the perfection of acquirements , the end of action ; bonum patriae , as divines call it : yet the same philosopher says , that learned and wise men have digladiated about it , and counts the rehearsal of their varieties , altogether useless ; yet he says , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. well to live , and well to do , is to be blessed . alexand. ab alex , gives a large account , that philosophers thought all bliss consisted in otio & quiete ; and surely , if all action be to rest , and rest be cessation from labour , and that be felicity or beatitude , as our chancellour confuses them ; then our chancellour , and the philosopher , lib. . de morib . c. . are at an accord : and though they do logomachize , to try mastery of words and wit ; and thereby to beat out discovery to greater perfection , and to spin a finer thred of art , and give it a renovation of beauty and delight ; yet are they confederate in the main , and do not vary in the definition of the nature , but the wording of their apprehension : for they make not felicity or beatitude , to reside in sensuality , or visceration , in violence or depredation , in morosity or sullen incommunicableness ; but in that assimilation of nature , to the chief good , and prime cause , god ; and to those figures of his immaculate , unalterable , and influential good , which he has communicated to excellent creatures , and by which they are rendered , esteemed , and unvulgar . and this i take to be the sense of our chancellour , in making felicity and beatitude tant amounts , not that they in logical acceptations , or in critical examinations , are exactly the same ; for though they mostly agree , yet are they unlike enough , to admit a discrimination ; but because the main ingredients to their perfection are the same , and the reward of both one , as to what we apprehend , the same virtue being the via recta to bliss , the finis itineris . and hereupon those learned men , that did disceptare de modo , disagreeing in the collateral , and less material circumstances , coincided in the upshot , which is their determination , quòd finis est omnis humani appetitus . and their conclusion is , that beatitude and felicity is the end of all mans desire ; of his desire , as rational ; not onely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a meditation of wisdom , as philo calls it ; but a wisdom , which is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. as he enlarges , and carries a man to such a mastery of himself , and such a magnification of his mistris nature , and her and his maker god , as puts us upon desiring him as our chief good , and every thing as our happiness , in order to , and our beatitude with , and in fruition of him ; for , as the same philo observes , no receptacle can be fit for god , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. but the soul that is purged and prepared to receive him , the best good . and therefore the supreme good , take it as moralists denominate it , animus fortuita despiciens , virtute laetans , an t invicta vis animi perita rerum , placida in actu cum humanitate multa , & conversantium cura ; or , summum bonum quod honestum est . ep. . ex naturae voluntate se gerere , perfectus status in quo quis summum voti sui invenit . take it for such a resolution , as makes a man a free man , though in phalaris his brazen bull : yet all this , if it could be separate from virtue , were nothing ; quis sit summi boni losus , animus , hic nisi purus & sanctus deum non capit . alas ! alas ! they are but refracted , and minute determinations of the chief good that philosophers make ; they are strangers from the common-wealth of israel , and ignorant of the covenant of grace , and without god in the world of their fancy and opination . their wits are a wool-gathering , they seek living light in the dismal and tenebrious caves of their obcecated mind , where the true light is not ; all the good they can reach to , is , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as arrianus says , to live according to natures norm and discovery : nay , though porphyry be the director to seek good , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. in conjunction with the authour of it , the soul. though therefore they agree , the desires are carryed to beatitude and felicity ; yet in that they specifie it so different from the truth of its being , they confer little to satisfaction : nor have they at all satiated in their discourses of philosophy about these , and other points , the world in any age ; though they have been the patriarchs of heresies , and illaqueated many in snares of ill belief , and suffurated time and parts from other matters , ( more books being writ of philosopy , and philosophers , then of any science whatsoever , ) as is evident in iustinian's index , and in other bibliotheckes . for there have none of the great sects of them agreed , but been , if not diametral , yet divers from one another . for while the peripatetiques , aristotelians , or walking philosophers , then which sort of men , tully says , nihil est uberius , nihil eruditius , nihil gravius , determined felicity , or beatitude in virtue . the stoiques , or zenonists , whom their master taught in a porch , called in greek , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and thence are named stoiques , though they do re concinere , yet verbis do discrepare , as tullie's words are , with the peripatetiques ; for their beatitude is in honesty . from both these , epicurus his followers with him differ ; for these either determined it to reside in pleasure , as reflecting on the garden where epicurus is said first to principle his clients , according to demetrius magnesius his account of their institution ; or in exemption from sorrow , and a vacuity from all passion , and the felicity of it . now , though i say all these , orè tenus , did differ ; yet in the upshot and conclusion , they coincided : for the stoiques honestly , and the epicureans pleasure , is butlin other words , the peripatetiques virtue , since the one and other abstracted from virtue , as the mean and rule of them are but vana & exilia nihila ; and so epicurus himself is quoted by our chancellour . to conclude , nihil esse voluptuosum sine virture ; and so forphyrius limiteth beatitude and felicity , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. not to be fascinating and venereous pleasure that inchants the mind , but grave and serious pleasure , which consists in pureness of virtue : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. exercising it self in just , good , and necessary actions of life . and therefore philiscus in dion , miscalculated beatitude , while he made it to be in a sound body , and an avoidance of cares , which whoever enjoys , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. has the fruit of all felicity . this , i say , is not rightly accented , because it terminated felicity to a self-fruition , and not to any thing without , and above it , which porphyry rightly called conjuction , which its authour , and the scriptures , make to be in the knowledge of god. this is life eternal , to know thee the onely true god , and whom thou hast sent jesus christ , and in the enjoyment of god in grace and glory . blessed is the man , to whom the lord imputeth no sin , and in whose spirit there is no guile . there is god enjoyed by his potent presence in the soul , chasing away all corruption inconsistent with him , and refining the soul from the impurity of its lees and dregs . and they shall be with me , that where i am , there shall they be also , which is the promise of christ to his , as their compensation and beatitude ; which is the fruition of them in glory . for so said the spirit , blessed are the dead , that die in the lord , for they rest from their labours , and their works follow them . vnde sectae illae , ut dicit leonardus aretinus , in hoc concordaverunt , quod sola virtus est quae felicitatem operatur . this authour , leonardus aretinus , is not that florentine , which poggius so acclamates , in the epistle he writes to him about ierom of prague , but one of the same name and kindred much elder : posseuine , and gesner , make no mention of this authour ; but draudius does to his infinite advantage , making him the authour of many excellent books ; amongst which , this isagoge here quoted , containing ten books on aristotle ad nichomach is not the least worthy . it was , i suppose , a manuscript in our text-master his time ; but about . it was printed at iean . and it is a notable discourse of moral philosophy , that part of philosophy that concerns the manners of men . now though that of seneca be true , non quicquid morale est , bonos mores facit ; yet may they be called morals , quae si non apertè & statim flexu , vel subsidio aliquo ad bonos more 's ducunt , saith lipsius . and of this nature are morals in philosophy , because they do componere animum , as natural philosophy does search into causes of things , and rational philosophy discuss the propriety of words , and structure of arguments . seneca in his . epistle , gives us a large account of philosophy , and the contrariancy of philosophers one to another , in stating and dissecting philosophy : yet his conclusion is , causae rerum ex naturali parte sunt , argumenta ex rationali , actiones ex morali : so that aretine writing of the moral part of philosophy , had unavoidably to do ; which felicity , and beatitude , as the end of all man's desire and tendency , in the practice of virtue . and that which he is quoted for , as coagulating all the sects of philosophers , ( and sects denoted habitus animorum & instituta philosophica circa disciplinam , that is , additions to a particular profession , according to the reverence men have of him that institutes , and as chief in it professes it ) all these sects , i say , he amassing , as it were , into one term of expression , declares them to own virtue alone , the means to attain felicity ; that is , in other words , no felicity is enjoyable by man , but in a state of reduction of nature to its primaeve purity , and in a subserviency to its maker , in all those actions wherein his pleasure is notified : which seneca words more elegantly to my sense then ordinarily ; vt quanti quidque sit , judices , that we rightly understand what everything is ; vt impetum ad illa sapias ordinatum , temperatūmque , that is , that we love and hate , use and not use it , according as it is auxiliary , or obstructive to our end , in pleasing god and our selves . vt inter impetum tuum actionemque conveniat , ut in omnibus istis tibi ipsi consentias , that is , that in the rise to , and action of our virtue , we do nothing but what is rational and proportionable to our being , who are made after the image of god on our reasonable soul. this is truly to be happy , to be what we ought , and onely such ; all other felicity is but nominal , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , weak remiss felicity , but a badgers footed felicity , halting before the best friend it hath to commend it ; for so epicurus concludes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. all virtue consists in pleasure , and to live delightfully , is to be happy . so that all sects of learning and wisdom , though diversly denominated , as those from the place of their birth , or first appearing ; as the elienses , megarenses , eretrici , cyrenaici ; or of their teaching and institutor's school , as the academiques , and stoiques ; or from guises and accidents , as the peripatetiques ; or from reproaches , as the cyniques ; or from effects , as the endemonici ; or from their heighth and pride , as the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : from the nature of their writings , and names of their masters , as the socratists , and epicureans . these , and all other sects of them recited by laertius , yet do all make up an harmonious suffrage , that virtue onely operates felicity . and this aretine assenting to , and corroborating , is here quoted by our authour , in the following words . quo & philosephus , politic. felicitatem definiens dicit , quòd ipsa est perfectus usus virtutum . this definition of aristotle , is the same with what he says otherwhere ; for discoursing of felicity , and aggravating the glory and lustre of it , he says it is termed by some 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; by others 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . this , or that excellent endowment , as prudence , wisdom , beauty , strength , riches , friends , which were but slips from , and diminutives of it ; but he concludes it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that it was a concentration of them all in their end , and noblest resolution , and an arrival at that which was the meta ultima , ultra quod non : and hereupon he concludes it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the perfect enjoyment of the end , and that perfectly . now in that he calls felicity the perfect use of virtue , he means , that virtue is the means to it , and then is perfect , when it has its end for which it was designed , and to which end it is the vehiculation : so that felicity being the perfect use of virtue , argues its end in that endless beatitude , which we living having not , cannot be properly said to have the perfect use of virtue ; yet comparatively we may , as we are laid by others , who are less virtuous ; and so heathens that know not god , lodging beatitude in these inferiour accomplishments , to any remarkable degree obtained , above the vulgar account , that perfects virtue which is by them expressed . so the philopher calls that perfect , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; to which there is nothing to be expected addable , because virtue is perfection it self . this is their notion of perfect use of virtue , when a man is so assueted to virtue , and has such a conquest over his passions of all sorts , that he can conform himself to his exact duty , and neither desire more then he has , nor fear more then he ought , nor endeavour to do otherwise to god , man , or himself , then as perfect virtue limits . this is the perfectus usus virtutum , which saint paul translates into carrying a conscience void of offence both towards god , and towards man. but saint paul's definition of it , transcending the heathen's notion , is not to be insisted on as aristotle's meaning , which went no further , then that before-mentioned . more of this might be added out of durand , suarez , saint thomas , and arragonius , and aurelius on him : also from scotus , parisiensis , turrecremata , and others the schoolmen , who have created of perfect virtue , and the use of it . but i refer the reader to them , avoiding the superfluity of quoting them here , and concluding with that of philo , that god doing all things like himself in weight and measure , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. indulges his creature nothing defective beneath perfect , though not in the absolute and exact act , yet in such degrees as he accepts perfect . and thus noah , daniel , iob , and others have been accounted perfect by him , and been blessed , in such the perfect use of virtue , from him . his jam praesuppositis considerare te volo , etiam ea quae sequuntur leges humanae , non aliud sunt quàm regula quibus perfectè justitia edocetur . ] this is to set forth , that as beatitude is attainable by virtue , so virtue is by knowledge of the law : and as all virtue , so that , which though inclusively , is general ; yet , in common understanding , one particular justice . this the law inclines to , and teaches a prince so the method of , as nothing else besides it can , or does . for laws being the wisdom of ages , and men having such additions , and subtractions , as make their compilements symmetrious to their end , must needs be the most faithful , and unerring counsellours , which has caused monarchs , in power and wisdom , to dye for laws , and the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as well as for religion , because religion and they , directing one rule of justice equally , call for courage and constancy in mens observance of them . now , though it were too bold a confidence , for any one to arrogate this rule of perfect justice to any single body of humane law ; yet it is well-beseeming a sober man , to own the chancellour in his vindication of humane laws as such ; because some , or other laws of men , do supply what others want ; and so amongst them , while yet they are together , but humanae leges , do notwithstanding perfecte justitiam edocere . for since the rule of justice with men , is the laws of their government , and the topique customs of the place of their being , and those are knowable by study and practice , and the knowledge of them in both kind ; is the perfectest acquisition , our nature is capable of . in the same sense they may perfectly be known , may they be accounted perfect rules of virtue ; since the virtue perfected in us by the law , is but a conformity in practice to the speculation we have of it . and hence it is , that , as in common speech , we call that á perfect copy , which is verbatim to the original ; and that a perfect child which has all the integral parts , and that a perfect book which has no leaves torn out : so the law may be taken for a perfect mistriss of justice , when it gives , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , rules for iustice , and is as indefectuous in it , as integrity of method and prudence , equity and exactness , composed by man , and generally approved by experience , can arrive at ; which budaeus well expresses , quod in legibus ; senatus consultis , rebus judicatis , juris peritorum authoritate , edictis magistratuum , more , aequitate consistis , &c. this is the rather to be insisted on warily , because all laws , like all law-makers , are not always such as virtue requires . nay , no laws or men , how transcendent soever , are either in their present times so well ballanced , or against the necessity of emergent changes and accidences , so omnisciently provided for : but there will need some either abolition of , or mitigation from , or declaration about them , and their senses in them . constantine was a brave man , and intended splendidly , in building anew , as to the laws and polity of it , constantinople . no doubt but he had all the thoughts of perpetuity in his head imaginable , and resolved to live in the glorious memorial of that justly ordered government , which in the memorial of his name , did , in a sort , immortalize him : yet ignatius remembers us , multas leges rogavit , quasdam ex bono & aequo , plaerásque superfluas , nonnull ásque severas , primúsque urbem nominis sui ad tantum fastigium evchere molitus est , ut romae aemulam faceret . and grotius , that memorable man , then whom , i think , few have been more profitably learned , acknowledges some laws imperial are not just ; as that of wrecks at sea , nullâ enim praecedente probabili causâ , dominium suum alicui auferre mera injustitia est , saith he : yea , he further shews , that the heathens abominated any thing like this , that men should lose their lives and goods for submitting to god , who causes , and allays winds and storms at his pleasure . a like hard , not to say unjust , they thought those laws of the nations , that punished children for their fathers crimes , which god interdicts in israel , as ethnique , and irrational , saying , the son shall not bear the iniquity of the father , nor the father of the son , but the soul that sinneth , it shall die . the like in justice was in the laws of the persians , and macedonians , vowing their neighbours heads in sacrifice : these , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , laws made by men , like the poets , atae , offensionis & noxae contubernalis , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for her enmity and spight , as it were , to mankind , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as she is set forth diule-like , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 saith suidas . i say , laws so made , are not probable to have any rectitude in them ; and therefore the statute of m. sess. c. . censures and repeals those statutes of h. . c. . h. . c. . for though laws they were , because the establishments of power ; yet just laws they were not , mistaken and mis-named laws onely cousin-germans to those of nebuchadnezzar , dan. iii. which made denial to worship the image he idolatrously set up capital , laws they may be , and those accepted by great and wise nations , as the salique laws are ; but yet hard , and against the opinion of nations ; yea , determination of god in zelophehad's daughters cases ; yea , and against the experience of females fit to rule , where righted to it ; witness q. elizabeth , and witness the judgment of our state and law , which establishes the crown on the heirs female of our kings , for want of male , q. mary , the second parl. c. . these , and the like laws , may be unjust , and therefore are not regulae , quibus perfectè justitia edocetur , but injuries to governments , and unjust usurpations upon the reasons of the subjects to be governed , qui leges injustas constituit , non dei , sed suo ore loqui disitur , suis niti inventionibus , ex ambitionis , libidinis , avaritiae sontibus deductis enjusmodi sunt omnes leges tyrannorum , & hypocritarum , quâ non ad justitiam in rempub. inducendam , sed ad opinatum , & falsum commodum eorum qui illas condunt , diriguntur , saith hopperus . which considered , our chancellours shafts against this inconvenience and mischief , are not shot at random , but prudently levelled at the mark he aims at ; satisfaction of the prince , that the law , as ars aequi est boni , is the best and safest discipline of administrative virtue . and hence is it , that he calls laws , rules ; now rules do not incline to things , but things conform to rules ; because there is no ametry in rules , but a fixed and exact rectitude , rules being truth adapted to ends of use , and tracks , according to wisdoms discovery of her self , in the practiques of sciences and mysteries : so the laws , as rules , are not to condescend to mens mutable humours , but to retain their majesty , and immobility , as rules do , and ought ; allowing always reason and magistracy regent in it , liberty , in licitis & honestis , to alter , as prudence advises , and providence , in affairs , shall over-rule them . while then laws are rules , and such as do perfectè justitiam edocere , they must be of high descent , from the father of lights , larded with virtue and wisdom , in every part and nook of them : not framed , as if epicurus were their patron , who taught , that nothing was just , suâ naturâ sed metu : or according to thrasimachus his latitude , whom plato brings in , asserting that to be right , which is pleasing to the chief power ; but understood , as sulpitius intended , whom tully reports to have referred all things , ad aequitatem facilitatēmque ; and as the ancient lawyers directed their learning , tollere controversias non constituere . and that purely , vt pax , & inter homines , & in unius , cujusque servetur animo , quâ nil majus natura ipsa gaudet , saith vives . and good reason there is , that the law should be a rule , by which virtue is so perfectly taught , since it has all that can go to make a rule , such as it ought , and is pretended to be , mensura aequi & boni : for besides its influence from god , papinian in his definition of it , lex est commune praeceptum , virorum prudentiam consultum , delictorum quae sponte , vel ignorantia contrahuntur , coercitio , communis reipubl . sponsio . i say , in this , he has published the deserts of the law to be received for a rule . for besides that seneca in the name of all wise men , calls the law , justi injustique regula ; and writing of honesty , says , hoc nec remitti nec intendi posse , non magis quàm regulam , quâ rectum probari solet , quam si flectes , quicquid ex illa mutaveris , injuria est recti , passing by this , the rule has profit , firmness , and delight in it , which makes is accommodate to every artist , and to every person that is concerned in it . and hence , as vitruvius observes , the rule in every part of architecture , though he reduces lengths ad lineam & regulam ; heights ad perpendiculum ; and corners , ad normam , and respond they all must to these , or else there is not just mensuration . so does our chancellour , in terming the law a rule , refer perfect virtue to it , as well to be gain'd by , as protected in it . nor is there any virtue learnable by any man , but what the law can , and will teach him , if he will hear , and obey it . and as demosthenes , whom pliny stiles , ille norma oratoris & regula , had not been an orator so eminent ; nor at all , if he had not conformed norma loquendi . nor he , in tully , a good man , had he not resolved , dirigere vitam ad normam rationis . so cannot the prince be , what be ought in charity to be ; good to his own soul , nisi servatâ illâ , qua quasi delapsa de caelo est , ad cognitionem omnium regulâ , ad quam omnia judicia rerum dirigentur ; as tully smartly . which considered , no wonder though the chancellour make justice that is in man's law , inseparable from the law ; because god , the fountain of it , has instructed , and commanded man in place and power under him , to promote and practice it , as that which is a ray of him , and raised by him to an esteem , as the architectonique virtue that includes all others , since consequens , est ut qui ad legem se applicet , iustitiae quoque tâdem operâ adhaerescat , nam secundum regulas geometricas quaecunque uni , & cidem sunt aequalia , inter se sunt aequalia , saith hopperus . iustitia verò quam leges revelant , non est illa quae commutativa , vel distributiva vocatur , seu alia quaevis particularis virtus , sed est virtus perfecta , quae justitia legalis nomine designatur . here our master disclaims that narrow sense of justice , which mistake may impose upon him , and lays claim to the latitude of justice , as that which is in , and teaches men , from the law , the practice of it . and this the better to obtain , he premises , that justice , as it is in fonte , and essentially in god , is like god himself inscrutable , having the vail of inaccessible glory before it , and dazling mortal eyes to an inperception of it ; which yet , through the mediation of the laws composed by wise men , and worded aptly to ordinary capacity , is in such a measure revealed , as it may be learned in some competent measure by them . and this adds much to the renown of the law , that it discovers so excellent a jewel , as harmonizes the world , and keeps it in any tolerable concord ; which because justice does , 't will be pertinent here to write somewhat additional , to what is before delivered of her . justice , either is considerable alone , as one of the virtues , or as complex , and including all virtues in her . in the first sense , my text-master intends her not here ; nor shall i in that here inlarge on it : but as she is the lesson , that the law learns both prince and people ; so she is to be acknowledged summarily all virtue . the schools define justice to be rectitudo impressa voluntati à rectitudine rationis quae dicitur veritas , and vast disputes they have about her : yet all agree , that she is the aurora of all perfections , attended by such an equipage , as no monarch beneath iehovah has . for if solomon in all his royalty , be not cloathed like a tender and trite lilly of the field , which every eye may look upon , till it have looked it self into darkness ; and every hand touch , till it hath defloured its glory , and withered into deformity : how unlike , in the pomp and grandeur of their train , are solomon's peers to this his peerless mistriss that is to them . tanquam inter stell as luna minores . tully makes six virtues to attend the train of justice , macrobius seven , andronicus nine , aristotle and theogius all virtues , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. xeno phon says the same , calling it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the greatest art the queen of all excellent virtues , polus the pythagorean , as i find him in stobaeus , is so transported with it , that he calls it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and adds no man , without it can be accounted wise or magnanimous . plato makes it so beloved of the gods , that be his condition never so distressed , they will never forsake him alive or dead , because he is useful to the publique , and so like the gods themselves . epictetus makes the same account of it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. every place is safe , where a just man lodges . infinite to this purpose are the accounts might be given of the encomiums of iustice : but those are but tinsel trickings to the glorious tyres , and invaluable ornaments , scripture puts on her , iustice is the habitation of god's throne , the exemplication of his essential magnitude , and illustricity to us . the lord is known by the judgement he executeth . justice is the whole duty of man , and that which prepares him for every good , against every evil : 't is the establisher of thrones , the credit of weights and measures , the sweetner of crosses , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as saint chrysostome notes it ; yea , that which is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , round every way , universally the same at all times , and to all persons , according to the differences of circumstances , which are to be taken in , in exercitial iustice. so that the laws of nations being artes aequi & boni , and administring to people under the regency of them , such just proportions of punishment and reward , good instruction , and seasonable prevention , in good and evil ; and being straight , certain , safe , useful rules of life , both in the ruling , and ruled parts of societies , and the tropiques upon which communities are harmoniously managed , they may , in very right , be allowed weight , according to our text-master's ballance , in those words , quibus perfectè justitia edocetur . for so donellus also asserts them , in the intendment of his words , and in that sense which wise-men dispense them in , sequamur potiùs quod justum & aequum quàm quod strictum est , quòd strictum jus nihil habet auctoris praeter verba , efficit ut sit maximè contra ejus sententiam & voluntatem , at verò sententia non verbis astringenda est , sed verba potiùs sententiae atque adeò aequitati servirè debent , quàm servari , est ex mente legis ; and that the performance of this is a necessary part of the laws justice , salmuth upon pancirol , doth in many examples , and by sundry authorities , make good . this shall suffice , for what our chancellour , out of leonardus aretinus , homer , and aristotle quotes , to the phrase of justice , as it is the parent of all other virtue ; and particularly the prerogative , and royal embelishment of kings : for so it follows . iustitia vero haec , subjectum est omnis regalis curae , quo sinc illa rex justè non judicat , nec rectè pugnare potest . in this sentence , our master applyes justice to the king , as the rudder that must move and actuate him that is the mover and spirit of all his government : for in government , the king and the law , though two in number , yet are but one in nature , both making but one head ; which head , our authour says , ought to be filled with no proclamations but justice , and the care of it . care did i say , yes to purpose ; princes find it so , that rule well and justly , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : oh! the tortures and troubles of crowns ! what anxious thoughts , what discomposed pleasures , what earth-quakes of popular murmure and insolence , does greatness totter upon ? antigonus had so much of it , that on a day , when a poor woman admired him for his diadem and purple robe ; he cryed out to her , o mother , if thou knewest the guilt and trouble of thése , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that is , thou would'st not take it up from the ground , if there it lay , and thou mayst have it for taking up , the charge attends it . indeed , did people know how real deservers princes are of their duties , what laborious bees they are to bring them the honey of peace ; what clouds of plenty they are , and all to disgorge their tributes and customs in protection and orderly government of them , they would make more conscience of duty to them then now they do . est enim ea hominum conditio , ut si quando justum regem nacti sunt velint potius illi subdi quam esse liberi , etiamsi rex hic sit tyrannus , quare dominarite & tibi orbi conducit , was virgil's counsel to augustus , wen he was in a quandary , whether to hold , or resign the empire . for what pliny said to one is here true , parens tibi imperium dedit , tuilli reddidisti , ultro dantem obligasti , communicato enim imperio solicitior tu , ille securior factus est . people have more from princes , in care and vigilance , for , and over them , then princes have from people , in tributes and perquisites of their crown , which they carefully wear , to those purposes of publique good . which considered , that speech of augustus to his livia , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. who woman can be quiet a moment , who has so many and great enemies within this government , &c. is but what all kings and chiefs do in their minds speak , and have too just cause to bemoan ; as that which makes them sometimes necessarily act , what they do not applaud , as exactly just . what then they do besides the rule , and beyond justice , lyes on them to answer to god ; for their square and tether is justice that 's the onely subject matter that regality should express care in ; and that done , security will flow in upon king and kingdom . for to promote this there is a kinde of necessity in a prince to take this glorious mancipation on him . and did not god kindle ambitions of glory , by publick beneficencies in great mindes , they would never deny themselves the delights of private living , to take the envy and murmure of government and rule upon them ; for when subjects sleep , princes wake ; when they eat and drink to freedom , princes are to keep cool heads , that they may be ripe and ready in counsel and action ; when they love and marry whom they please , princes are , and must be bound up by reason of state , and marry to their best interest , and strongest allyance ; when they command hours for private devotions , and hug their pillows as their ease , casting off care with their cloaths ; princes are masters of no privacies ; hurried they are up and down in the day , and perplexed in the night with myriads of thoughts , tumultuating one upon another ; every shadow presents suspition and fear to them . and they knowing not what a moment may bring forth , are in no moment hereby quiet : when they see a subject popular and wise , they fear his discontent , disaffection , and the fruits of it rebellion : when they hear of multitudes querulous , and parties among the people , their prudence aims to head none of them ; but to ballance them both , so that neither may have the advantage of other , but the law regulate both . when they observe princes their neighbours , in warlike paradoe , they must arm too , that the noise of their vigilance and preparation , may prevent what is malevolently designed from abroad against them . and when their own subjects are in arms , they take care , lest they should not be distributed into their first particles without inconvenience . when they are to court forreign favourites , they are dubious to trust , where they have not tryed , and found fidelity ; and when their way is made , then their care is to improve by subtilty , what prudently they have gained . for not to proceed wisely in what is begun , is to retrograde in publique reputation ; and to proceed faster then the good speed of affairs dictates , is to be less advised then princes ought to be . when affairs are on foot , they must be supplyed with instructions , money and all other necessaries ; and when they are brought to their growth and birth , then the case is , how to produce them gallantly , and to be moderate under the interpretation of them with men , whose bolts will be diversly shot , and censures boldly delivered upon them . these , and myriads of such like emergencies , discompose the lives and peaces of princes , and great men , and deny them the serenato's and calms that privacy delights their possessours with . when bajazet the fourth had lost his son orthobulus , and his city sebastia , he could sing no notes so cherrily as the shepherd , whom he sighingly cryed out happy , because he had none of them to lose . yet these cares are all but in order to the highest care of kings ; justice , which being the project of god , in the government of the world , calls them as dutiful children , wise servants , and worthy patrons of popularities , to imitate him the father , master , and defender of his creation , and the polities in it , which they can no ways to the life do , but by justice . justice is the cement and soul of all polities , the hinge upon which order winds it self into humane accommodation . diodorus writing of the virtues of noah , concludes that he taught them 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. iustice and integrity of soul above all . and trogus speaking of the golden age under saturn , attributes this to it , tantae justitiae fuisse fertur , ut neque servierit sub illo quisquam , nec quicquam privatae rei habuerit , sed omnia communia , & indivisa omnibus fueriut , veluti unum cunctis patrimonium esset . take away justice , and all that we see and read of , becomes chaos . take away justice , and what are kingdoms but magna latrocinia ; and kings , but violentiae numina . take away justice , and what are laws but nudae & nugatoriae ceremoniae ; pompous nothings , and ridiculous gloworms . take away justice , and what is property and priviledge , but libidini holocaustum : and who may not by ahabs , and sons of belial , be made a naboth for his vineyard ? set aside justice , and all religion to god , and order amongst men , ceases . yea , justice being the end of government , ( cujus quidem rei argumentum est , quod qui primus inter mortales à deo constitutus fuit , melchisedec , id est , rex iustitiae , saith hopperus ) is so necessary , that it cannot be removed without the dissolution of all : 't is the sun in the firmament , god's bow in the clouds , an eternal witness of his love to man. quo sine illa rex justè non iudicat , nec rectè pugnare potest . this is added , to shew the necessity of the presence of justice in every act of regality , peace and war are the two hands of government ; and both these are to be bound and loosed by justice . and hence has it ever been the care of good princes to be just , that they may be beloved , and well reported of : and thus onely they knowing , they must be by the laws of their government strictly stood to , has made them keep to it resolutely and throughly , boni principis est summum honorem legibus exhibere , nec quicquam sine illis nisi ultimâ necessitate tanquam tempestate cogente agere , ne si aliter faciat , in anceps periculum se conjiciat , & loco regis tyrannum se exhibeat , is a states-mans rule from the great secretary of nature ; who , because the laws are respective of the good of many concerned in them , makes the observation of them so important , that he concludes that a good king more eyes his peoples good , then his own greatness . that then peace and war are regulated by the laws . proceeds from the justice of the king who is head-dispenser and protectour of his laws . and hence it is , that the wisdom of kings has ever admitted their laws to be of the quorum , in conclusions about them : yea , and from this is it that mostly peace and war has been successfully managed where justice according to law , has associated them . for god having intrusted power with princes , to felicifie , and not ruine their people by it , prescribes justice , as the method of its dispensation to this end ; and the laws of god and men stating justice in every application to them , conducts princes to their prerogative , and instructs people in their allegiance readily and religiously ; so that the law being ars aequi & boni , and justice the end of it , being that which prince and people are made happy by , there is reason that the law , in assertion of justice , should be adhered to . unde cum perfectus usus virtutum sit faelicitas , & justitia humana quae non nisi per legem perfectè nanciscitur , aut docetur , nedum sit virtutum effectus sed & omnis virtus . this is the recollection of the premises to produce the conclusion , which our text-master makes in justification of the law , and of the excellency of justice taught by it . for since the end of all active virtue is felicity , & that is acquired by nothing more then justice ; and that justice is specificated by the law , which is the rule and model of it , and which onely can teach it perfectly , and make the knowledge of it productive of those fruits , which are comportable with justice , in all the latitude of her relation to god , men , and a mans self , it reasonably follows , that not onely the law is excellent , as it is repleat with wisdom , and answers the ends of gubernative policy ; but as it implants in , and exercises the mind that is furnished from it , with that perfect notion of felicity by virtue ; which because it is a complex of all attainable goodness , and furnishes a man to every good word and work , is here called justice ; for so are the next words . sequitur quòd iustitia fruens faelix per legem est , & per eam ipse sit beatus , cum idem sit beatitudo , & faelicitas in hac fugaci vita . iustitia fruens faelix per legem est . the phrase fruens referring to the will , quia frui est in voluntate , helps much to the comprehension of the chancellour's meaning , that the felicity which man attains by the knowledge of the law , ariseth from the delight of the subject , in which it is to justice ; when in the apostle paul's words , i delight in thy law in my inward parts ; or as the prophet david said , i had hid thy law in my heart , that i should not sin against thee . in this case , the soul that is every way quadrate , and that looks to all god's commandements with an indifferent and just eye , not daring to dispense with any part of his duty , may well be pronounced happy by the verdict of law. for god has given it that just confidence , that it shall stand in judgment , that it shall not fear evil tydings , since its principle , which is fixed on the rule , leads to beatitude , and to what is the porch of it , humble confidence . and indeed , what can make a man happy , but that justice of principle and practice , which the law justifies ? and what of this nature does the law allow as a virtue , worthy its encouragement , but that which is tending to justice : there is a mutual reciprocating of eccho's , 'twixt law , happiness , and justice ; they answer each other , as parts of that line of communication which connects heaven and earth together : for when all things are at a stun , when beauty gives way to putrefaction , riches , honours , and wisdom weep out their woful farewel , righteousness delivereth from death ; not from death , as a debt to nature , for it is appointed for all men once to dye : but from death , as a terrour ; from the despair of comfort in , and mercy after death . this it delivereth from , thus in hezekiah's cafe , that remember , o lord , i have walked before thee with an upright heart , was his cordial against the cutting off of his days ; it being the course of god , to give unto all men somewhat of comfort , or terrour in their departure , suitable to the merit , or demerit of their lives . but , i trow , there is another sense more genuine of this iustitia fruens faelix per legemest ; which is this , he that has the benefit of justice , is by the law happy ; for that the magistrate , which is the living law , is appointed by god to speak , and do comfortably to those that live under his charge , and are inoffensive to his power . and truly , it is no mean degree of happiness , which the justice of magistrates conveys to those under their charge , if the particulars of it be duly weighed ; to live peaceable lives in all godlyness and honesty , to sit under our own vine and fig-tree , and to possess ones good things in peace ; to drink of the water of our own fountain , and to have the credit and comfort of god's blessing on our propagation ; to keep our fleece on our backs , and not to have them shaven , and our lives taken from us , to colour the injury . to have the knowledge of god run down in the land like a mighty stream , is happiness , carrying its witness with it . and blessed are the people that are in such a case ; and with this outward advantage , have the lord for their god. but all this is from that iustice , which the law , by the magistrate , makes good to us . were it not for iustice , the laws grnadsir , and from the fruitful womb of order , which magistracy doth impregnate , who would be happy , but those whose powerful wickedness carryed them forth to drink healths in the bowls of the sanctuary , to prophane the holy things of god , and to violate the sacred rights of men . but blessed be god , there is a bright star in the firmament of rule , which illuminates the clowdy face of force , and makes us see iustice expanding her wings of protection , sovency , and comfort to all her clients , and she can do no less then chear all that love and follow her ; for she is a ray of the light sprung from on high , and is descended with a cornucopia of good to mankind . and therefore the chancellour had a good reach when he said , iustitia fruens faelix per legem est ; for as he told the governed their happiness , so the governour his duty , which is to love justice in himself , that he may administer it to his subjects . for it is a sin not to be just , and a greater in the prince , then in the people , because of the eminency of the one above the other . and that prince that is unjust , and yet will be owned as custos utriúsque tabuls , had need seize his subjects reason as an escheat , and make a law , that people should believe nothing good or bad , but as it is published to be by him ; for if men be left to the just latitude of their reason , they will conclude him no worthy prince that is not just . wherefore the happiness that people enjoy under just princes , is not onely from their good will , free concession , and gracious indulgence , but from a benefit also drilling down from princes by the laws of nations , on people , as the vallies which they water , and therefore laws are accounted publique treasuries , that buy out common slavery into enfranchisement . and therefore the law is called by the greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , some say 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies , to distribute ; as telling us , that whatever happiness subjection has , is from the justice of kings by their laws . eurypides says there are but three virtues which he would have his child learn , to fear the gods , to honour our parents , and to reverence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the common laws of greece ; as conceiving the reverence of the law to be next duty to god , and our parents : and whatever assurance government has , is from the same sourse ; for the law of natural justice teaches , that protection is to be recompenced with subjection , and subjection to be maintained by protection ; both which are best kept up by justice ; which justice makes man happy according to law. quo & per cam ipse fit beatus , &c. well added , for no man can be sure of a good end from an ill beginning , non habet eventus sordida praeda bonos ; the just god has joyned together justice , which is in effect , all virtue , to happiness , that men may know the way to the one by the other . for men must pay toll at the castle of justice , before they come to the basileopolis of happiness . and since pairs are so beautiful in their conjunction , the chancellour has by an elegant synonyma identified beatitudo & faelicitas , at least in has fugaci vita , in the condition whereof , we men are onely meet apprehenders of them . for he supposes , that the upshot of all man's motion in his calling and sphere , is but to attain rest ; and that rest , from the toil of life , he fixeth in his chair of state old age , under the canopy of his night-cap , and in the robe of his gown , having in his hand the scepter of his staff , and his cough as the herald , making room for him to the grave . now that obtained , he accounts himself happy to live in credit , dye in peace , leave a good name to survive him ; that 's all that the beatitude and felicity of this life amounts to , and this is only attainable by justice . the just , saith the wise-man , shall he had in everlasting remembrance ; and in another place , the memory of the dead shall be blessed . and this blessedness shall the law pronounce , when it testifies , that we have lived to the true and just purposes of life . for we were not made to study , serve , love , and delight in our selves , but to serve our maker , to love our neighbour , to promote virtue in our selves and others . and this we ought to do , considering that it is our duty , and we must give an account , quid , quando , quibus , quare , fecimus ; what , for the nature ; when , for the time ; to whom , for the persons ; wherefore , for the motive to our doing ; yea , and considering above all , that the time we have to work in , is but fugax vita , short time , slippery time , gone like a tale that is told , passing as shadow , as a brook ; time past before us , time past after us , time present , called life , onely ours : therefore we ought to be active , while the day lasts , because the night comes , wherein no man can work . cujus & per justitiam ipse summum habet bonum . the chancellour , as one in love with justice , makes the summum bonum of life to consist in it ; and so it must , considering he asserts it beatitude and felicity , which is the summum bonum of any thing ; for what is the beatitude of a thing more then the perfection , and what is the perfection less then the felicity of it : so that there being as perfect a concord in the chancellour's words , as soul ; i cannot but wish , that may be in our times , which learned budaeus , speaking of the areopagitae , says of them , they were such friends to justice , that they would endure no oratory , left their affection should be led aside from the truth , to favour that party which had the best language in its defence , and did fit on judgments in the dark , that they might not be led by favour , or know friend or foe ; yea , that their integrity might appear , he adds out of isocrates , tantum priscos illos areopagitas monumentum virtutis ac continentiae suae , illo in loco posteritati reliquisse , ut etiam suo tempore quo jam mores antiquos multùm degenerasse conqueritur , observatum effet eos qui moribus alioquin intolerandis antea fuisse videbantur , si quovis modo ad areopagiticum fortè consilium obrepserant , tum demum temperare sibi solitos esse , & tanquam loci genio afflatos , ex ingenio suo migrare ▪ malléque institutis tanti consilii quàm insitis sibi vitiis , aut ingenitis insistere . to this i say , budaeus adds , utiream benignitate divinâ , in amplissima curia nostra similis aliquis posthàc genius existat . by all which it appears , that justice is a most excellent virtue , and that which our chancellour both practised , when in office , and had the comfort of having so done , when exofficed ; and this makes me conclude , in commendation of justice . tamen non nisi per gratiam lex poterit ista operari . herein , as in other places , the chancellour , like a devout man , and a knowing christian , recalls his former extolling of the law ( as the rule of justice bestowing upon man the felicity of this life ) by interpreting himself , as ascribing the main work to grace , and to god the giver of it . for though that be true of laws , which plato desires of men , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. when god intends well to any man , or place , he raises up , and increases good men in it , which morellus says , has been verified in france , wherein reges sapienter & justè regnantes ad noucis septenos concessit : yet all that ever art or nature does to our perfection , is nothing , without god's concurrence and benediction in that gracious providence , which effectuates what it will. now this the antients called by many names , as desirous to convey it most to the advantage of its splendour . moses termed it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the finger of god ; and solomon , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , god's hand ; pindar , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , god's palm ; plato , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , god's lot ; aristotle , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that divine virtue which contains every thing in , and brings every thing about to it ; the old academiques , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. reason moderating , and ruling powerfully in all , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that divine gubernation and order of all things . these , i say , in other terms , mean the same with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that special grace and favour which he bestows on man , and by which he makes the law effectual to this purpose in him . for though i well know the law is just , holy , and good , and all laws have the most presumptions of success , in what they undertake to teach , and seldom do lead into any thing beneath the most exact habit and action of virtue ; yet in that they do this in conjunction with , not abstracted from divine grace , i think it just to ascribe all the perfection in virtue that man attains to by the law , to god's blessing which derives energy to it . indeed the law can , as a system , and collection of divine truths , and prudent rules , method us in justice , and teach us to use virtues , in order to beatitude ; that is , excite the faculties apt to take and retain principles , it can propose the rule to the understanding , and thence to the will and affections . but it cannot perswade his ear to hear , and his heart to embrace what is good , and accordingly to do it , quia ad bunc actum deus nos adjuvat & interiùs confirmando voluntatem , ut adactum perveniat , & exteriùs facultatem operandi praebendo ; as durand notably . this is solely an act of grace from god , whose prerogative it is to do , and not to do , as he pleases ; and therefore without god , man's free will is nothing ; nothing without god's co-operation . he , he , must carry our endeavours to their issue , or they will be abortive , and have no figures of amiableness in them . and therefore our chancellour has written no more here of grace , then the schools generally assert . and brulifer , though he would allow as much to man's will , and piety's merit , as may be presumptuously arrogated , yet brings in a four-fold grace of god indulged man , suitable to the four-fold evil he is immersed in : the evils are , . combat with satan's temptation . . the wrath of god. . the guilt of sin . . the sequel of sin . the grace that god vouchsafes , are , protection , deliverance , extraction , salvation . so that the triumph of a sinner over his toil and impossibilities , is from this grace of god , which enables him to every good word and work . this grace is therefore as the gift of god to , so the work of god in us ; 't is that which excites us to , retains us in , and rewards us for well-doing ; because it is a largess of god to us expressive of eudochy , and complacentialness ; it 's that which god answers men by : if not secundum identitatem desideriorum , yet secundum aequivalentiam : if not just as they desire , yet in the best exposition of their desire , that is , in such good as he sees best for them . no wonder then that heathens , in all great undertakings , addressed to their gods , praying their aid and influence , since they found themselves impotent to reach any things of remoteness without them . for god himself has declared it his prerogative , to bless , and curse ; to raise up , and pull down . and the law can do nothing , either to convince of sin , or conduct to virtue , but as god's fescue in magistrates hand . 't is god above , that must open the eye of the understanding , and incline the heart to good ; yea , and 't is god's grace onely , that when the good and excellent path of life is discovered , puts man in , and keeps him on from halting or deviation ; not onely by an act informationis & denominationis subjecti , presenting good to us , sed redditionis operis meritorii ; as durand too durely phrases it , that is , rendring it accepted in the beloved lord iesus . the consideration of which brings in grace in scripture , under so many honourable , and useful attributes , that it 's hard to think of benefits , whereof our nature and condition is capable , which this grace and favour of god does not accommodate us with ; it restrains from sin , it excites to duty , it conflicts with despair , it actuates faith , it erects fortitude , it debases pride , it adorns humility , it promotes self-denial , it is victoriously valiant against the enemies of the soul ; yea , it keeps the heart equanimous , neither presumptuous , nor despondent , but equilibrious , as a son should be , between the fear of duty and mercenariness . hereupon st. paul ascribes this mutation from a pharisee to an apostle , to be of grace ; by the grace of god i am that i am , teaching us to put our selves for the fortunation and felicitous sequel of actions on the mercy of the almighty , wherein no man that rightly aims , and religiously means to that end , can possibly miscarry . all that we have to do , is to walk regularly and humbly before god , and thereby our inward man will be kept from predominancies inconsistent with this grace . for , as in the body , the prepotency of malignant humours , impedes the operation of the noblest potions ; so in the soul , till grace have obtained the mastery over the brutal and lower regents , there is no effects of grace probable to appear . it must be god that first excites , then by a concomitation crowns our endeavours with a desired issue . he gives recompence to diligence by wealth ; to patience by victory ; to humility by exaltation ; to penitence by pardon . all that art and industry can do ( abstracted from this grace as its benediction , which includes it's fiat ) is nothing . lewis the ninth of france was a wise and pious prince , yet he made but two voyages against infidels ; one into egypt , and the other into barbary , and miscarried in both . in the first , he himself was taken prisoner , and his whole army overthrown . in the latter , he dyed of the plague . caesar borgia fearing that his father pope alexander the sixth dying , the papacy would come into the hands of his enemy , ordered affairs so dexterously as he thought , that which way soever they steered , he should be out of danger : pope alexander shortly after dyed ; and caesar borgia fell so sick , that he could execute nothing he had designed ; and so the popedom came nnto his professed enemy : so that the chancellour's position is most true , non nisi per gratiam lex poterit ista operarii . neque legem aut virtutem sine gratia tu addiscere poteris , vel appetere , cùm ùt dicit parisiensis ( in libro suo cur deus homo ) virtus hominis appetitiva interior per peccatum originale it à vitiata est , ut sibi vitiorum suavia , & virtutum aspera opera sapiant . this is added , to shew how impotent the best prescripts of nature are to any excellent and certain end , in their abstraction from god's grace : neither the whole duty of man , which our chancellour means by the law , in which 't is proposed ; nor any part of it contained in single virtues , can be either desired , or practised by us , but with assistance of god's grace . first , we cannot , appetere legem aut virtutem , without grace ; for appetuntur quae secundum naturam sunt , deelinantur contraria , is tully's rule . now the nature of man is so averse to virtue , as subverted from its created rectitude , that it opposes it self to it , and declines it so , that if it be brought upon the love and practice of it , it must be by a divine perswasion , and sweet compulsion , from grace moving the will to follow an enlightened understanding , and engaged affections . and then secondly , man cannot addiscere , that is , not onely learn , as oratours sometimes use the word , but quasi aliquid addere adea quae didiceris , as our text intends . no man can add to what nature instructs him in , concerning virtues divine and moral , but by grace ; for thereby onely corruption is discovered , and the means of recuperation and restitution , by improvement , revealed . neither of these so necessary to our compleatness , are attainable , but by the grace of god , which brings the light and truth of god's discovery to the conscience , in compunction and contrition ; and then carryes the convinced subject to iesus , the anchor , the price , the pattern , the donour of integrity , from which corrupted nature is the lapse . indeed , in heathens , and pure moral men , there may be suddain options , and passionate transports , reflected from the terrours of natural conscience , which may cajole a man to ingenuous confessions , and seemingly serious protestations of amendment . but these being the products of no solid and sincere conviction , but the fruits of god's terrour , which he often injects into , and sometimes long continues upon wicked men , are but splendida peccata , no acts of grace , but of power : which as a creatour , not a father , god expresses himself to his creature in . by these he over-wrought balaam to bless , whom he resolved to curse , and abimelech , not to take sarah , whom he resolved to prostitute ; which had they not been , neither the good words of the one , let me die the death of the righteous , and let my latter end be like unto his , numb . xxiii . nor the chast deeds of the other , in not touching carnally abraham's sarah , had not succeeded their actions , which were praevious and ordinated to the contrary . so that whatever these , and other heathens did , in order to self-mastery , magnanimity , contentation , patience , justice , charity , though they are effects of general grace , that is , of the largess of god the creatour , to man his creature , yet are they but imperfect works , because they did them as lures to their own same , and as defensatives of themselves from miscarrying in the deluge of censure and defamation , which hurries down into the lake of dishonour all sordid , illiberal , debauched courses ; and hence they deserve to be accounted not so properly virtues , as the umbra's of them : because , beyond the elysium of fame , there is no reward for these ; for so , according to their calculation , is their reward in this world : for all they aimed at , was to appear to men ; god , the principle of their activity , was superiour to , though not at all in their intendment and purpose ; and subjected they were , to what they could not oppose . bona ipsa opera quae faciunt infideles , non ipsorum esse , sed illius qui benè utitur malis , said that renowned father of our church against the pelagians . and therefore there is vast difference between the works of grace and nature , of heathens and christians ; because , though in the externity , and materials of them , they may have an equipollency ; yet in the intention , rule , principle , and purpose , ( which bears away the reputation with god ) there is no agreement . the righteousness of these gracious souls , exceeds the righteousness of scribes and pharisees , who yet were exact and rigid in the rites of their worship . the wisdom of these reaches to eternity ; they consider their latter end , and desire god to teach them to apply their hearts to wisdom . the charity of these , is not onely to those of the houshold of faith , but to all mankind ; not onely to a cup of cold water , but to actions of heroickness , whereby coals of fire are heaped upon their enemies heads . the patience of these , is not to the loss of their gods , but lives , so they may keep their souls spotless . the perseverance of these is such , that with iob , though god kill them , they will put their trust in him : the humility of these is so real , that they put their mouthes in the dust , the bemoan themselves with ephraim , if i have done evil , i will do so no more . these are the fruits of god's canaan in the soul , which worldly men , as false spyes misreport . these are iacob's hands , as well as iacob's voice ; the same in deed , as in word : there is no tincture of alchimy or alloy in these , they are all gold , whereas nature gives men but the vermillion of seeming : this presents the rose and lilly of perfect beauty . and hence comes it to pass , that god owns it as his work , and promises himself the reward of it unto the soul , vide quid christiani facere possint quorum in meliùs per christum restaurata est natura , & qui divinae gratiae juvantur auxilio , saith the father . which considered , 't is well added by our chancellour , that thus to do , is divinae bonitatis beneficium , non humanae virtutis . for as it is not flesh and blood that reveals it , so is it not flesh and blood that performs it , natura humana etiamsi in illa integritate , quâ condita est , permaneret , nullo modo seipsam creatore suo non adjuvante servaret , quum igitur sine gratia dei salutem non potuit custodire , quam accepit , quomodo sine gratia dei potest reparare , quod perdidit , is saint augustine's judgment . for if by the power of nature separate from grace , the virtue of justice could by the law have been taught and learned , man needed no other school but that to teach him his duty , and to make him actually perform its dictate . but inasmuch as our lord has taught us , that without him we can do nothing as we ought , and god will accept , and the holy men of all ages have recurr'd to god's grace , as the sine quâ non to their progress and success : it highly besits us to ascribe all to grace , and to disclaim merit and self-sufficiency , that he alone may have the honour , who is the authour and finisher of all good in us . for it is one of the great and undeniable explorations of omnipotence , and that which argues god the regent and provider of the world ; that he makes every thing accountable to his end , and subservient to his purpose , not onely the proper effects of grace , renovation of principle , and melioration of practice , but also the punishments of grace despised and neglected , sicut mali dei bonis malè utuntur dum non corriguntur , sic contrà deus , etiam malis corum benè utitur ad justitiam suam , & exercitationem suorum , said the father ; and to the same purpose synesius , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that is , even the sinful liberties men take to satiate themselves with sin , work out god's justification in their punishment , and satisfic the pious , that he must needs be good , who gives so just rules to life , and they be out of measure sinful , that obey them not . no wonder then the scripture says , obedience is better then sacrifice , because sacrifice being a devoir of the man externally conforming , may flow from the less noble and degenerous proposal that men make to themselves , of assimulation to those they converse with , and are planted amongst , by complying with whom same and advantage is acquirable , which they call humana virtus , and from reason and experience is moved and promoted ; but to obey god , in owning his goodness the motive , and his power the parent of what we attain to by study , action , friends , fortune , and to account our selves and all collateral aids , blind and passive seconds to his omnisciency and wisdom , the energy and effectuality of the first cause god , must be divinae bonitatis beneficium , no man can disclaim what he loves so dearly himself , but he that in the glass of god's perfection sees his weakness and insufficiency , and by the mastery of mercy over his corruption , ascribes all he is , or does , to his makers good-will to him , and the enablement he has from it . nam tunc leges , quae praeveniente & concomitante gratiâ omnia praemissa operantur toto conamine addiscendae sunt , dum faelicitatem , quae secundum philosophos est hìc finis & complementum humani desiderii , earum apprehensor obtinebit , quo & beatus ille erit in hac vita ejus , possidens summum bonum . this is a good inference from the premised assertion ; since all mans chief good , by philosophy is made to consist in felicity or beatitude , this felicity or beatitude is attainable by justice ; this justice taught and learned by the law , the law made effectual by gods grace accompanying it . hence argues the chancellor ; if such be the attainments by the laws , then the laws of god , nature , nations , are to be chiefly learned by a prince , indeed the argument has as much of cogency , as utile and decorum can give it ; and while there is a tye of grace upon the laws , without which they are counted ineffectual , there is no fear , supererogation , or attribution of ought to them in derogation to grace , which is the gift of god by them ; as it is not bread that supports life , nor air that cools and refreshes the inwards , nor light that promotes order , nor physick that procures health , but god's fiat and creative permission and benediction , whereby not onely their innate and specifique virtue , in a beneficent exertion , accommodates it self to , but is conducted and confirmed by the omnipotence of god so to do : so is it not the law that can bring the mind by understanding the definition , to affect the direction , and execution of justice , except god incline , and circumact the heart to the completion of it ; and that by a grace of prevention , taking out of our way those rubs that imply avocation , making us of unwilling willing ; and then by carrying on those beginnings to procedure , by breaking out the crepusculum into the bright day , nè frustra velimus , that is , by assisting us to run the race with patience that is set before us , looking unto iesus . o 't is a rare prospect of the crucifix , that brings us to make our selves vild , and of no reputation , that we may be obtainers of preventing grace , and do the will of god , by aid of his co-operating grace . our lord iesus gave us the president to follow him , that we might be enjoyers of happiness with him , gratias agamus domino & salvatori nostro , qui nos nullis praecedentibus meritis vulneratos curavit , & inimicos reconciliavit , & de captivitate redemit , de tenebris ad lucem reduxit , de morte ad vitam revocavit , & hxmiliter confitentes fragilitatem nostram illius misericordiam deprecemur , ùt quia nos misericordia sua praevertit , dignetur in nobis non solùm non custodire , sed & augere munera , & beneficia sua quae ipse dignatus est dare , was saint augustine's counsel : and , o lord , grant me , who am thy poor valet , and have presumed to write of thy grace , such assistance of thy preventing and concomitating grace , that i may neither sin against them by my pen , or in my life , but that i may so write of grace , and so live to grace , that it may appear i covet the grace i write of , and magnifie the assistance , that in this unworthy endeavour of mine , thy grace afford me ; while my heart conscious to it self of many falshoods in friendship , and coolness in zeal , to the glory of thy grace , yet presumes to cry out with saint ierom , semper largitor , semperque donator est , &c. thou , o lord , art always bountiful and givest , o let me be an ever receiver from thee , for it will not suffice my hungring soul , that once thou givest , unless thou often and ever givest ; i am covetous to have the most i can of thy gracious bounty : as my soul is never satisfyed with receiving , so let not thy grace be satisfied with giving to it ; for the more it has , the more it desires of thee . thus that father , and i from him : for , without this continual , and effectual inflex , how shall i write aright of grace , which worketh in us whatever is right in the sight of thee my gracious iudge . without grace then , the law is ineffectual to bring princes by justice to beatitude , since it will not inform them of the excellency of virtue , nor subdue them to its method by efficacy of conviction , which makes practique virtue , and carries to , and ends in beatitude , but by help from above . moral swasions are weak physick , to carry away peccant humours prepossessing : it must be grace from god that vehiculates them to the parts disaffected , and by them works evacuation and restitution to a better habit . if our righteousnesses , that are as filthy rags , become clean garments before god : if our salt that has lost its savour , be savoured by his acceptance ; if our darkness become light in the lord , through the lord of lights irradiation on us ; if our covetousness of the earthly mammon be converted into the earnest covering of the best things ; if instead of crying out against our selves , when we have done all we can , that we are unprofitable servants , as our lord commands us . it must be the work of grace . our lord , in room of that , makes himself that blessed call to us , come ye blessed children of my father receive the kingdom prepared for you . this happy change is from something of god in , on , and with us , his grace of prevention and concomitance . this , this , is the soul , rule , guide to the laws , wherein justice , as the way to beatitude , is deposited . and without this grace of god , the worlds philosopy , the laws learning , nay , justice to the highest proportion imaginable for man to arrive at , will be but apples of sodom , beauteous in appearance , but rottenness aud nullity in the proof of it : so true is that of the wise-man , even in this riches , as well as in any other ; the blessing of the lord maketh rich , and he addeth no sorrow thereto . and therefore no wonder , though our chancellour says , toto conamine addiscendae sunt leges , when he joyns the grace of god with the law , and makes the law sacred by its conjunction with , or rather subserviency to god's grace . for this premised , nothing can be imagined more pleasing and profitable to the reason and religion of a prince , then the laws , because they lead to the chief good by the best aids ; to god , by god. this is no other then scripture divinity , god the chief good apprehended by faith in the eye , hope in the heart , charity in the hand , humility in the knee , perseverance in the foot , which are all but other wordings of grace , preventing and accompanying . since to attain these , as there is no means but that of god's grace in chief , and our obsequiousness to it , as the consequent of it : so are those to be followed to this heavenly purpose toto conamine , no saint , remiss , refracted , minute desires , will do to purpose this deed . this heaven on earth is for the violent and laborious bees , that let no endeavour pass untryed to attain it , refuse no hazard or toil to conquer and atchieve it . he that wrastles with god in prayer night and day , he it is that toto conamine , endeavour knowledge of the laws : for conamen here signifies not so much the act , as the endeavour and desire to it , which expresses it self in a fixation and unmovableness of intention upon it , when all the man sets to it ( conari manibus , pedibus , as terence says , ) 't is such an expression as cicero meant , when he uses magno conatu studioque agere , to set out industry , or a conatus cum impetu , such an one , as beast and bruits express , when they are carryed to or fro from things they love or hate ; to do what we do with all our might , as solomon's words are : this is toto conamine addiscere ; nor can it well be otherwise , for it is in order to the greatest and utmost good , to justice , the delight of god , and perfection of a prince : yet this , though insisted on with all imaginable strenuity , will not be effected but by grace ; and that present and concurring , nothing can be wanting ; that god has declared the true elixar that makes what ever it touches partaker of its virtue , and transforms it from what it was , to what is more excellent ; not by sir edward kellets mystical jugling ( no better then commerce with satan ) whereby brass is transformed to silver , and copper-wyre into gold , as some chymists report him to have done . for that lightly and unlawfully come by , as lightly and loosely goes ; as it is said to do with him , who was so vain as to give four thousand pounds worth of gold wyre away in rings at a maid-servants wedding ; no such effect of this elixar : grace , it turns an hard into a soft , a proud into an humble , an hypocritical into a sincere heart ; yea , it teaches a man to delight in the law of god in the inward man , and to be deservedly what pits reports feckenham abbot of westminster to be , erat in eo ( saith he ) insignis piet as in deum , mirae charitas in proximos , singularis observantia in majores , mitis affabilitas in inferiores , dulcis humanitas in omnes , multiplex doctrina , redundans facundia , incredibilis religionis catholicae zelus ; and while a man obtains this by the law , is he not amply compensated ? has he not the utmost bliss , this state of viatoriness is capable of ● i trow yes , and if so , then the laws of god and men from them are the most ready and useful accomplishments of kings and great men , because they put them into bliss , in their deepest miseries , and in the unnaturallest desertions their vicissitudes can acquaint them with . for that princes may be unhappy in accidents of life , is but what has been , will be , must be , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . now , saith plutarch , the most deserving men have been most incumbred , most afflicted , most ruined ; but in that they can be chearful , patient , humble , and holy , under the pressures providence permits to impend them , argues a great enablement from god , who gives grace to those that beg it , suitable to his own glory , and their good . and this i conceive our text-master found experimentally in himself , god had made him a martyr for loyalty , a champion for the laws , whom because they could not bend , ( who would have their wills the law , and not make the law their wills ) they resolve to banish , and break in mind , fortune , body ; and he , though he had undoubtedly many friends of henry the fourth's party , who would , and could have made his peace , and procured his freedom to live at home , yet he rather chose to live free abroad , then a slave in a free countrey , and under a free law , as england ought to have been , but was not . hereupon his leisure , and loss of practice by business at home , proves his opportunity to study god , affliction , men , his own heart , more and more throughly . and now he cryes out , if it had not been for god's law his delight , he had perished in his affliction . now he owns gratefully to god , that it was good for him to be afflicted . now the fruits and comforts of justice in his profession , place , practice , quondamly return on him the reward of their integrity : sure he that writes so divinely of justice , & presses the law as the rule of princes in it , found the justice of laws great subterfuges to his disconsolacy , and retreats to his once mistakes of god's dealings . the greatest discoveries men have of god's light and truth , are from the midst of lightnings and thunders , afflictions storms end in a calm of merciful sublevation ; when the bush burns , and is not consumed , isaac's throat is under the knife , then the ram caught by the horns is welcome to abraham , as god's provision for a sacrifice of redemption . so often as i think of patmos , the place of saint iohn's revelation of , and prospect into the mysteries of glory , of which the fuller sight is reserved for hereafter , i cannot but conclude our chancellour , was made what he so divinely by his being driven from house and home ; for now he being taken off from the troubles of visits , and distractions of business , which storm-like , come in crouds , and cross waves of different import , has thereby leisure to converse with god , and to commune with his own heart ; and being removed from the impulsion of this world's hell , which by force and fraud either terrifie or allure men into snares . the judgment that he ( in this condition of separation being more impartial ) gives , carryes the stronger reason , and will be more influential , by how much the more sincere it is presumed to be , since nothing so embases counsel and instruction , as the prae-occupation of interest , to the proportion and scope of which it is often experimented mercenary : which being not to be suspected in our chancellour , renders his words not onely swasive but in a sort imperative , as they flow from the almost infallible oracle and fountain of great learning , grave experience , entire affection , and noble loyalty . verè etsi non haec te moveant qui regnum recturus es , movebunt te , & arctabunt ad disciplinatum legis prophetae verba , dicentis , erudimini , qui judicatis terram . still our text-master proceeds to inculcate on the prince a valuation of the law , which , though he had by many pregnant arguments , commended to him , he yet further urges from a higher authority then that of philosophers , and men of age and wisdom : for though it were enough to youth , that antiquity found in the way of righteousness , commended this or that to them , because multitude of years teach wisdom , and the spirit of god in that counsel or command , thou shalt rise up before the hoar-headed , gives youth to know his acceptation of respect shewed to them , then which , greater cannot be testified then to be directed and instructed by them : yet the chancellour brings in the irrefragable advice of god's spirit , by the kingly prophet , in the person of christ jesus , who being the prince of peace , as well as power , allures all his delegates , to submit themselves to his scepter willingly , throughly , constantly , and to be lessoned , that thus to do , is to advance their power , and attone the displeasure , that obstinacy may treasure up against them : be instructed ( saith he ) ye iudges of the earth . now this he brings in out of the second psalm , not primarily , ( for then he might have been thought to distrust the efficacy of his pre-engagements of the prin ces reason , since justice lodged in , and learned from the law , is of concern enough to move a man , a prince , in order to a king , to value , and endeavour to understand the notion and practice of it , as the sine quâ non , to his very essence and being quâ such . ) but the cause that this scripture is superinduced , is rhetorically to overbear the prince , that all excuse laid aside , he should as a man , and as a king , incessantly apply himself to holy instruction in the will of god , revealed in his law moral , and in the extracts from it , the national laws fitted to his government . for though true it be , that perhaps when our chancellour wrote to the prince , henry the sixth was alive ; or if dead , the prince was not actually king , as in title and truth after his father the chancellour conceived he ought to have been : yet the good chancellour bespeaks him , to prepare before against the time of tryal , to imitate solomon's pismire , that laid up in the winter of ruines store , against the summer of rule , provokes him by all the engagements of providence and probability , to antedate his regality , and become a king in learning and endowment , before he becomes king in fact and acknowledgment . and this he does not , by kindling in him thoughts of revenge , and flames of abhorrence to those persons and practices , that raised war against his father , and forced him abroad ; yea , threatned his never return , but by courting him to learn of god , how to want , and how to abound ; how to be without subject or subsistance , and how to use both moderately , and to the ends of god's glory , and governours institution : which wisely , and well to learn , he directs him to attend the counsel of holy david , a king and a prophet , ex utroque caesar , a man of valour , and a prince of piety , to be instructed , and that because he is to judge others : and thereupon that he may not either not do what , or do otherwise then what he ought to do to men , as one of the judges of the earth , to be well grounded in knowledge , the rule of action . now , though i know it becomes not any subject to treat of the duties of princes but with reverence , which many men have forgot in their late treatises concerning them : yet shall i be hold to touch upon this subject here , as my method leads me , in the exposition of this scripture , though that but shortly , modestly , and i hope with submissive wisdom above offence . the quotation then out of psal. ii . . erudimini qui judicatis terram , though it was largely intended to all , to whom instruction is proper ; yet presly and primarily was directed to the great men of the world , whom the prophet foresaw to be industriously composed , and pertinaciously resolved , against the reception of christ in his gospel , government , and doctrine . and this i suppose the psalmist had revealed to him particularly from god , whose prescience and omniscience discovered it to be such in the revolutions of time , and productions of men , that both the prenunciation of it might accord with other prophecies in the testimony and truth of mens opposition to the son of god ; and that as the godly might be prepared not to stumble at it , so the wicked might be left without excuse , when their pertinacy suffers the just indignation of god's son against them . which premised , the words have respect to somewhat implyed , and somewhat expressed : the implication is , that great men , judges of the earth , need instruction : not onely as they are men in common with others , subjected to the consequences of sin , which have labefacted all the integrals of created faculties , and made us dark in our intellects , averse in our wills , dull in our affections to good ; yea , in a sort estranged us from the love of duty to , and subjection under god , but as they are persons peculiarly elevated above others , apt to be flattered by , and inflamed from the vain delusions of their parasites , that they are made believe ( unless god give them more humility to know themselves ) the best and happyest of men , when ( god knows ) their cedar heighth , lyes in the storm and heat of all temptations ; and having such snares about them , better were it for them to hear of the frailty of man , of the justice of god , of the duty of humility . these more commemorated in their representation of things to them , would render them more happy in their souls and bodies , then often they are . ahab loved not micaiah , the holy ghost says , because he told him the truth , when all the prophets of baal covertly betrayed him to sin and judgment ; yet augustus did not so by maecenas , when he was more sharp them some think he needed ; for since he kept him a favourite , as one that should bring him off anger , and cool his enragings , he gently bore , yea , he kindly took , and accordingly desisted from his severity , when his friend put in that rubrique , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. arise sir , you have been terrible enough . it is , i confess , a happiness to serve princes of mild and ductile natures , whose hearts reflect on soft and virtuous friends with candor and kindness ; which augustus was so frequent and fervent in , that next to the indulgence of god , who gave him a good nature , and a docibleness to be guided by love and experience , which sedates jealousie and rage ; he owed as much of his stability and glory to his noble livia ; and his prudent maecenas , as to any other princely endowment , or benediction he enjoyed ; which that florid , and stupendiously eloquent moralist does incomparably mention , haec eum clementia ad salutem securitat émque perduxit , &c. this piety , saith seneca , accompanied with clemency , arrived him at safety and security : this made him a conquerour , before he had actually conquered his insolent and implacable foes : this , at this day , makes him dead , famous above most living princes ; men voluntarily for this , not by command , account him of a god-like goodness , descendedly a parent , and a good prince to his countrey ; and that because he passed by contumelies , which princes often take worse then injuries , and revenged them not . thus seneca of him . but he could not say so of nero , though his pupil , and one whom he put more milk , then blood , in the principles of his education ; his quinquennium shewed what he was from his masters tuition , before the vices of greatness , and the luxuries of effeminacy had enchanted him , he ought to have reasoned with himself , ego ex omnibus mortalibus placui , electúsque sum qui in terris deorum vice fungerer , &c. i , of all men , am favoured of the gods , and deputed to be their deputy on earth ; this favour and prelation , shall not make me wrathful and cruel ; nor shall either the heat of youth , or the rashness of choler , or the vain-glory of being known in my dreadful power , provoke me to be savage : but my ambition shall be to purchase glory by virtue , and to carry the sword as an emblem of severity to awe vice , but to support virtue : so will i be ruled by law and reason , as if i kept them within my heart , and would make use of them as i had occasion . this ought to have been his thoughts , and according to this his master , the cultivator of him , hoped he would prove . but nero had so debauched his mind by effeminate transports , that all the imbibings of his educations were expectorated . now all the lenitives and morals that art can prescribe , are apocryphal , and come too late either to be welcome , or followed . nero was proceeded tyger , such a degree in inhumanity , as had no name before him . to tell him , non regem decet saeva , & inexorabilis ira , to proclaim to him affability , love , complyance , as that which would not make him execrable , but adorable , was such a solaecism to his ranting resolution , that he counted it meliùs non nasci quam inter publico bono natos numerari ; yea , so impatiently did he suffer his fury to be in danger of allaying , by the mildness of his master , and the majesty of his reason , that he opened tyrannously the veins of that body , the soul whereof lodging in the blood and spirits then expiring , had impregnated him with better principles . die seneca did a martyr to nero's rage , who endeavoured to make nero mild and virtuous ? i could tell you of demetrius poliorcetes , pausanias , the lacedemonian alcibiades , agathocles , pisistratus , sylla , catiline , mark anthony , domitian , manuel comnenus , offa king of mercia , pope alexander the sixth : all which , and sundry others , who had eminent vices as well as virtues , and not well observing the rules of practique virtue , had need to be instructed against forgetting god , themselves , and their people . this confirms , that they need instruction , because their plethorique fortunes and stations are subject to more predominant vices , and their ears are less ( then is necessary ) suppled by virtuous freedoms , and serious monitions , softning the heart , and lifting it up in gratitude to god. this our late martyr'd king charles the first , considering , breaks out into this expression , publique reformers had need first act in private , and practice that on their own hearts , which they purpose to try on others . christ's government will confirm mine , not overthrow it , since as i own mine from him ; so i desire to rule for his glory , and the churches good . so he that was the best of men and kings his contemporaries , discovered the teachings of god to him in his afflictions : and as that they need instruction , is implyed , so that they may , and ought to be instructed , is expressed , and that by a king , peer to any successour in kingship , and a prophet , which no king after him i think was , solomon excepted , who was his son ; if a prophet he was , which i am not sure of . erudimini , said he , to the judges of the earth , who was himself a judge of the earth ; not thereby to become an authority to insolent spirits , to reproach or discover the nakedness of princes , if any such there be , as chams in all times have cursedly done : no , nor to render majesty cheap by these abasements , which even suspition of defect in some degree , occasions . but the erudimini here is , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 't is to follow and imitate nature ; embrace plain and naked truth , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to see good laws and right constitutions obeyed in all parts of government , as philo's words are ; and this to do , as to do it , is that which is insculpt on the table of man's heart , to obey god , who has fixed governours to rule for him , and will have account of their trusts from them . so is it to be followers of god as dear children , in all those imitable acts , which as a father , and king of order , he proposes to them in his example . the prophetique king here takes great men to task as their monitor , and he bids them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , castigate vos , he bids them understand , that whereas god has given them exemption from mens castigation , yet he requires they should restrain and curb themselves ; for the root , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , signifies such a restriction , as men in bonds and setters have , nè pro sua libidine evagetur & vivaet : 't is not barely to know ; for that the holy ghost have expressed by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for of that the wise king speaketh , prov. xxii . . teach a child in the trade of his youth , that is , as rabbi ionah expounds it , teach him pausatim paulatim , ut ferre possit ; nor is it an instruction like that of tyro's , who learn methods of war and combat by exercise ; for then the word would have been 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as the psalmist uses it , psal. xxxiv . . come my little children , hearken unto me , and i will teach you the fear of the lord : nor is it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , such a fear as is preparatory to god's instruction , such , as kimchi says , implyes , praeparationem verborum cujuspiam in alterum cum rationibus , & ostensione juris ; but it is chiefly 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is here used . and the prophet's sense is , learn to know god's mercy to you , that though he has prelated you , yet 't is , that you should deny your selves what you might , to do what you ought . this is that the holy king invites his fellow kings to ; and the holy prophet counsels them that govern the earth , in god's name to do , and that because they are judicare terram . indeed , the consideration of duties incumbent on men in power , should make them as less seekers , so less servers of themselves in it : for besides that it is a burthen too heavy for the most atlantique shoulders , which has ever been the reason why deputations have been so frequent , and that of old , as iethro counselled moses , and as paterculus tells us , was among the romanes , and as is in use at this day with us , and amongst our neighbours . men in power had need to have extraordinary parts , and self-masteries , to know and perform their places to a conscientious and creditable latitude . god requires talents for talents , every ten talents of power must have ten talents of justice to men , and glory to god returned for it . and hence comes it to pass , that the erudimini here has much more in the scope , then the meer phrase carryes with it . for my part , i humbly conceive those three heads of saint paul's , predicated of the gospels revelation , that is , teacheth to deny ungodlyness , and to live soberly , righteously , and godly in this present evil world , is whatever this erudimini imports , nay , whatever god has in expectation from kings , the best and god-likest of men . to live soberly to ones self , so as to have a reverence to ones body , becomes every man , but especially a prince , because he is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a diety in flesh ; and if he be the oracle that men repair to for solution of doubts , reparation of wrongs , preservation from violence , and example to virtue ; to keep his head cool , his affections restrained , his desires moderate , is the way to be quadrate to his dignity , then he will not erre in judgment , when he judges impartially first his own body and soul , and keeps such quarter in them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that he suffers nothing to be done by him , but what is suitable to nature's rule , and the good of mankind . this the emperour mark antoninus prescribes . this takes off all those exuberances , that besot and lose princes in obscenity and dissoluteness . to live righteously , that is the joy of all subjects ; because where it is radicated in the soul , 't will distribute it self in all expressions of power . the same emperour gives a noble advice 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not to wander from the punct and indivisibility of iustice , but ever to have justice as the rudder that steers us , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. to watch over the understanding , and hold it free from love of any appearance . the learned gataker glosses thus on the words , nè aberres vel tantùm , aut ab aquitate in conatibus , aut à veritate in assentionibus . this is that which seneca magnifies so , in that it does not virtutem daré voluptati , sed nullum bonum putat nisi hones●um , quae nec hominis nec fortunae maneribus deliniri potest , cujus boc pretium est , non posse praecio capi . but to live godly , that 's the top-lesson of princes , 't is doctrina principi congrua , because it keeps all the springs and artifices of action and contemplation in awe ; god himself declares this use to be made of it , i am a great king , saith the lord of hosts , and i swear by my self every knee shall bow to me . kings , though compared to men , they are gods , not to be bowed against their wills , but to be bowed to that they may will well ; yet to god , they are men subject to his iron rod , and his word of mutation works on their souls , bodies , and affairs . hence , not onely the apostle prefixes the true fear of god to the honour of the king ; but antoninus , according to the sense of scripture , gives the rule to all kings , as well as other , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . fear , saith he , the gods , and then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , preserve men . all government of men ought to be to that end , which iulian alleadges marcus antoninus to answer to silenus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , so to live over men , as to be both just and merciful to them , as god is just in point of punishing errours , merciful in point of relaxing burthens . deus est mortalis juvare mortalem , & haec aed aeternam gloriam via , hic est vetustissimus referendi benè merentibus gratiam mos , ut tales numinibus adscribant , saith pliny . so that all these considered , the erudimini here has much in it , and a strong force it carryes to the gaining of princes to follow it , if they would be subject to the reason of it , the prophet is no lax and saint rhetorician in this soft , yet significant language ; but he does by a pathetique , arctare & movere verbis , as our text-master comments on him ; he does movere vigore , and arctare ratione , and as he sets all his spiritual love on work to perswade , so all his learned reason to compel and over-rule the judges of the earth , scire institutum dei , & sequi disciplinatum legis ; for as learned king iames of happy memory once wrote . god gives not kings the stile of gods in vain , for on his throne his scepter do they sway , and , as their subjects , ought them to obey , so kings should fear , and serve their god again . if then you would enjoy a happy reign , observe the statutes of your heavenly king , and from his law make all your laws to spring , since his lieutenant here ye should remain . reward the just , be stedfast , true , and plain , repress the proud , maintaining aye the right , walk always so , as ever in his sight , who guards the godly , plaguing the prophane ; and so ye shall in princely virtues shine , resembling right your mighty king divine . and this our chancellour setting out so emphatically , makes me conclude him to be rara avis in terris . one in his own soul so just , and so incessant an oratour with the prince , for law and justice according to it , that to other acursiusses , leguleiviliora eligentes , non juris consulti , as budaeus words it , he deserves to be accounted a servius , a pomponius , a what not , that proclaims him a saint of the long-robe : and as budaeus wished to france in his time , ( and a learned and wise chancellour he in his time was ) so in my humble and hearty wish to england , vtinam verò nunc tres servos haberemus pro sexcentis illis accursianis , id est , tres viros justos , pios , germanósque , & ut ita dicam , majorum gentium juris consultos ; that is , say i , not as he , in the specifique words , but in analogie of good wishes , would to god we had more good , and less bad lawyers then we have . and this i wish , for god , the king , and the countreys sake , that religion , allegiance , justice , and charity , might be , by their learning and practice , the more and better promoted . but i return to the text. non enim ad eruditionem artis sactivae aut mechanicae hìc movet propheta , cum non dicat , erudimini qui colitis terram , nec ad eruditionem scientiae tantùm theoreticae quamvis opportuna fuerit incolis terrae , quia generaliter non dicit , erudimini qui inhabitatis terram , sed solùm ad disciplinam legis , quâ judicia redduntur , reges specialiter invitat propheta in his verbis , erudimini qui judicatis terram . these words our text-master adds , as an expatiation and ornament of his main argument ; not that he thought it not sufficient to carry the weight he superstructed it , but to obviate any mistake of the sense of scripture , apt to be distorted through peevishness , or mistaken by ignorance . to rectifie which digressions , from the intendment of the prophet , our chancellour proposes this allegation of the holy ghost's , as directly relative to rulers of all ranks ; not onely as they are men , for so they are concerned in common with all others ; but also , and chiefly , as they are the highest and most influential of men , either to good or evil . and because they may be engaged to do good , their architect who has built their power so many stories high beyond other mens , whose foundations are more in the dust , and whose houses are of clay , when theirs are of cedar and marble ; whose companions are the dogs of the flock ; when these sit among the gods , is by the prophet more presly catechetique to princes , not onely to call them to , but to instigate them by the commemoration of their received bounties from god , to learn their duty , and practice their subjection to , and zeal for him , that has so dignified them . it 's true indeed , there is an erudimini , which all men , at all times , in all stations , need ; the apostle , by the spirit of god , calls on christians to study , and exhibit to view that catholicon that cures prejudice , and commends to peace and charity , let your moderation , saith he , be known to all ; and there are particular scriptures exhortative to men in mechanique and active callings , which are to be heeded , god has left no man without his mortalis genius , his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; yea , and his monitor from above , such scripture-dictates as if he follow , he will please god , and pleasure himself in the peace of a rightly informed from , and rightly conforming conscience to , god. to this purpose are scriptures applicable to particular conditions : the priests are to read the law , to preserve their savour as salt , and lustre as light , to study to shew themselves work-men ; to carry consciences void of offence both towards god , and towards men ; to become all to all , that they may gain some ; and the people are to enquire the law at the priests lips . count those that labour in the word and doctrine worthy of double honour ; receive with all meekness the ingrafted word able to save their souls ; to labour to make their calling and election sure ; to press forward to the mark of the price of the high calling of god in christ jesus . these , and such like scriptures , are accommodated for instruction of priest and people . there are other scriptures adapted to other purposes of practick use , not to be proud , for god resists the proud ; not to glory in abundant revelations , not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to lift up our horn on high ; not to glory in riches , wisdom , beauty , strength , but to glory in this , that we know god ; to glory in the cross of our lord jesus , whereby the world is crucified unto us , and we unto the world. to parents , not to provoke their children ; to children , not to disobey their parents ; to servants , to be obedient to their masters ; and to masters , not to be hard and severe to them ; to wives , to submit themselves to their own husbands ; and to husbands , to love their wives as their own flesh ; to christians , to love one another , and to provoke each other to love , and to good works ; to souldiers , to be content with their wages , and to do violence to no man. to schollers , to be wise to sobriety , and not to search into the secret things which belong to god , but content themselves with things revealed . to people , to obey those that are set over them . to fear god , and honour the king , and to give subjection to every ordinance of man , for the lord's sake . these , and such like scriptures , are inserted into god's holy word , as particular documents , to particular persons , stations , degrees of men . but this scripture before us , erudimini qui judicatis terram , is the scripture that concerns kings and judges , that they should consider what god requires from them , and what their prelacies , ex aequo , imports them to do . and this , if ever any man did , i believe our late king charles the blessed , was taught by god to do : hear him , i never had any victory , which was without my sorrow , because it was on mine own subjects , who , like absalom , dyed many of them in their sin ; and yet i never suffered any defeat , which made me despair of god's mercy and defence : when providence gave me , or denied me victory , my desire was neither to boast of my power , nor to charge god foolishly , who i believed at last would make all things work together for my good . i wished no greater advantages by the war , then to bring mine enemies to moderation , and my friends to peace . i was afraid of the temptations of an absolute conquest , and never prayed more for victory over others , then over my self : when the first was denied me , the second was granted me , which god saw best for me . this was the piety and probity of a king , vivendo nobilis , moriendo nobilior , which i believe he had conveyed to him , through the mercy of god , by the instructions of his learned and pious father of happy memory king iames , the first king of england of his name , and the second solomon in the world , as i believe . for hear him , concerning a king's christian duty towards god. think not therefore that the highness of your dignity diminisheth your faults , much less giveth you a licence to sin ; but by the contrary , your fault shall be aggravated , according to the heighth of your dignity , any sin that ye commit not being a single sin , procuring but the fall of one , but being an exemplare sin , and therefore drawing the whole multitude to be guilty of the same ; remember then that this glittering worldly glory of kings is given them by god , to teach them to prease , so to glister and shine before their people , in all works of sanctification and righteousness , that their persons , as bright lamps of godlyness and virtue , may , going in and out before their people , give light to all their steps . and in the second book , treating of the king's duty in his office , he saith , a good king thinking his highest honour to consist in the discharge of his calling , employeth all his study and pains to procure and maintain , by the making and execution of good laws , the welfare and peace of his people ; and as their natural father , and kindly master , thinketh his greatest contentment standeth in their prosperity , and his greatest surety , in having their hearts , subjecting his own private affections and appetites to the weal and standing of his subjects , ever thinking the common interest his chiefest particular ; which , by the contrary , an usurping tyrant thinking his greatest honour and felicity to consist in attaining per fas vel nefas , to his ambitious pretences , thinketh never himself sure , but by the dissention and factions among his people , and counterfeiting the saint , while he once creep in credit , will then ( by inverting all good laws , to serve onely for his unruly private affections ) frame the common-wealth ever to advance his particular , building his surety upon his peoples misery , and in the end , as a step-father , and an uncouth hireling , make up his own hand , upon the ruines of the republique . thus incomparably that king. by these , and the like senses , which good kings have had of their duty to god and men , it appears , that the prophet's words here to kings , are of more consequence , by how much they tend by the greatest project , to end in the greatest emolument , that of kings bettered both to god and men in their beneficence , as i may so say to both , in that they do as marcus antoninus advises , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. do nothing rashly nor vainly , nor otherwise , then as exactly corresponds with the rule . when they do as artists do , in minutissimis quibúsque artis suae , & praecepta observant , & specimen edunt , it à & apelles ex lineae unicae ductu solo , protogeni innotuit , saith this learned commentator on him . which considered , as good princes are to be ever solicitous of their duties , and vigilant over their thoughts and works , that they wander not to an eccentricity , and dishonour themselves by the returns of the ventures they have made unhappily on them : so are all good subjects to pray for their princes in secret , and pitty their temptations , rather then revile their seductions by them . for princes had need of great graces , and self-denials , that remain virtuous , where every wit , every beauty , every courage , is their humble servant , and gives themselves a free-will offering to before they ask , them . no wonder then the fear of god is called the beginning of wisdom , and iustice the establisher of the throne , and both pressed by our chancellour from moses and solomon , as prescripts to kings , because they being in excelso positi , as they have great storms to shake them , so had need to be firmly rooted in the love of god , and in care and watchfulness over themselves , for their subjects sakes . for if they that are the guard be surprized ; if the wall of the vineyard be broken down ; if the shepheard wander out of the way , and be lost in the wilderness of sin , where no path of god is ; religion , peace , order , honesty , renown , power , all , evaporates and dissolves ; kings are bonds that keep all together they are nerves and sinews , veins and arteries , that preserve strength , and convey nutriment to the body : they are suns , and moons , and stars , all constellations of felicity to the inferiour world their subjects , who move from them , if they keep their brightness by day and night , suffering no sin vastative of the conscience to reign in and over them ; but by humility , and severity of life , rescue themselves from the eclipses of immortalities ; all the world will love and fear them , as good , and great , and all mouthes will be filled with acclamation of them , as they did in solomon's case ; blessed be god who has given to david a wise son to reign over this great people ; and as they did to antoninus , whom the senate acclamated thus , antonine pie , dii te seruent . the like to alexander , (b) to seuerus , (c) to gordianus , (d) to claudius , (e) to tacitus , (f) to probus . (g) yea , 't will be said of them , as 't was of the medicean family . in cosmo mediceo fuit hoc in primis admirandum , &c. this was most admirable in cosmo medices , that though he himself were unlearned , he loved the learned , and allured them to him by rewards and honours ; and his father laurentius medices was both himself a learned man , and loved the learned ; which caused the world to say , that the family of medices , were the patrons of learning , who restored arts almost lost , and gave the greek and latine tongues a resurrection in their learning and bounty . oh 't is a rare character the princely pope leo the th has , tu ille orbis amor , &c. thou , o sacred leo , art the worlds darling and delight , the restorer of peace , the determiner of war , the authour of safety , the setler of troubles , the father of studies , the nurse of arts , the restorer of all decay in science . for when a prince follows the orator's rule , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. when he seeks rather to be rich in fame then wealth , when he endeavours , as chrysantas says , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a good king differeth nothing from a good father , as tullius , the old roman king , was to his subjects , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. when he accounts his subjects children , and is to them a father ; when he is in his reign not a darius , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a narrow minded prince ; nor a cambyses , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a severe and violent lord , whom no man can either obey , or resist ; but a cyrus , a father , quia mitis , bonus , beneficus , benignus : a prince that thus is taught of god to know his mercy , and to make men bless god for the fruits of it that they find , in living peaceable lives under him in all godlyness and honesty : such a prince deserves to have the happiness , which nicoles said physitians had , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. whose virtues the sun and all eyed men see with admiration , and their frailties not see in charity , but bury them in grateful forgetfulness . et sequitur nè quando irascatur dominus , & pereatis de via justa . this is quoted , as it is added in the psalm , to acculeate the perswasion , to learn to know how to judge for , as god , that is righteously . for though it be enough to a good man , to do what is good and just , because good and just are the properties of god , and the provisions of his institution in magistracy : yet forasmuch as the servility of our nature being the effect of sin , evidences us more driven by fear , then drawn by love , the holy ghost has brought up the duty with a danger in the failer of it : and the sense is this , that the wisdom of god is not to be perverted by us , nor the power which he has intrusted great men with , to be abused to rage and fury , which is but the backside , and dark representation of that cloud , in which magistracy is wrapped , for its further and fuller awe on mankinds disorders , left god reveal from heaven his wrath against such unrighteousness of great men , and they perish from the right way , that is , lest when they are too big for men to deal with , god take them short by death , or other anticipation , and they have not the just power continued to them , which , while they had , they unjustly abused . and this indeed , is a great argument , which should move men in power to study knowledge , and practice of their duty ; to consider , that god is higher then they , that they are but dispensers of his talents ; and that therefore they ought to carry wise minds , and wary hands , in ordering publique affairs . oh! happy was that goth , theodorick , and happy those people under him . in bonis jactibus tacet , in malis ridet , in neutris irascitur , in utrisque philosophatur ; when governours are concerned in no passion , but as it still is in subserviency to god's end in their governments felicity , then are they out of fear of the son of god's wrath , and their perishing from the right way . nay then that is more true , then seneca perhaps meant it , dedit tibi natura , illa quae si non deserveris , par deo surges , hoc est summum bonum , quod si occupas , incipis deorum esse ●ocius , non supplex . nec solum legibus quibus justitiam consequeris , fili regis , imbui te jubet sacra scriptura , sed & ipsam justitiam diligere . tibi alibi praecepit , cum dicat , diligite justitiam , qui judicatis terram , sapientiae , c. . still our chancellour fills the prince's ears with fresh reasons ; fain he would that he should be just , who is a king's son , and he hopes is to be a king in god's time : and hereupon , as he had formerly acquainted him , that justice he must know and practice ; sonow he tells him , that the must do what he does not so much in policy , as in love to justice : not because he would be well thought and spoken of ; not for that it is commodious to fix government , though this is a warrantable motive ; but from love to justice , as the imitation of god , and a partaking of his essential perfection in such a measure as we are capable of , and it is possible to be derived on us . and hereupon princes are to love justice , and to hear the laws that commend it ; which laws were not made by men of force , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as porphyrus's words are , but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by wise and worthy men , who considered them , as they were suitable to the reason of nature , and the religion of right reason . and thus our chancellour presses it from the first of wisdom , v. . as both a moral divinity , and a divine morality . that which both to heathens and christians as men , is commendable , and without it , whatever is seraphiquely pretended in either , is just nothing . for whereas the text in wisdom is , love righteousness , ye that be iudges of the earth : our translators referring to texts in the canon , suitable to this apocrypha in the margent , mentioned kings iii. . the words are , solomon loved the lord , walking in the statutes of david his father ; and esay lvi . . where the words are , thus saith the lord , keep ye iudgment , and do iustice : which put together , do in their , and any good man's sense , amount to our chancellour's drift , that to love righteousness , is to love the lord the fountain of it , and the best way to see him with his reward with him , that is , with comfort and salvation from him , is to keep judgment , and do justice , that is , to do justice , by keeping judgment , since no king can be just to his own power , and peoples preservation , who keepeth not the judgment to discern of good and evil , and diligently searcheth not out the conveniencies and contraries that are in his government , and suits not laws congruous to them . and so our chancellour , and i after him , conclude the fourth chapter . chap. v. sed quomodo justitiam diligere poteris , si non primò legum scientiam quibus ipsa cognoscatur , utcunque apprehenderis . in this chapter , the chancellour presents the key to this invaluable cabinet of justice , in which all the wealth of heaven and earth lodges ; and though he has before me , and i , in all humility , after this great example , have been bold to write of it , what to rude and loose minds may seem superfluous ; yet on so noble and necessary a head , containing under it all virtue , especially in a prince , as he has not sparingly invited me to proceed ; so shall i not abruptly , and with disrespect to so superiour a president and command , desist , but further ampliate the dignity of justice , as in these words of this chapter , introductory to its subsequents , 't is expressed to us . that justice is lovely , besides those many precited authorities , philo's attribution to it , is notably confirming of it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. nothing , saith he , excels iustice , but it presides all other things , and adorns them all : yea , it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a fruitful guest , cherishing the soul in all conditions . but how to come at justice , to know , and love , and possess her , is that which the chancellour most drives at , to inform the prince of , and to enamour him with . this he resolves to be the knowledge of the laws , as the repertory and mine of justice , wherein god has manifested himself to mankind . hopperus , a very learned councellour to the king of spain , an authour , for the knowledge and use of whom , i owe the first discovery to the lord chancellour ellesmore , though the fuller , to my very learned and worthy friend mr. langford , a bencher of grays-inn , a notable contemplatour of this authour . i say , hopperus calls the law , summam divinae mentis rationem , & vocem cum bonitate & potentiâ conjunctam , quae posita in republ. jubet ea , quae facienda sunt , & prohibet contraria , ut exhausta injustitiâ iustitiâ particeps efficiatur : according to which computation , all laws are essentially the same , as they came from one god , but differ gradually , as they came to be revealed , or as the subjects they respect , are various . by reason of the latitude whereof , and the denomination of things just and unjust , according to the varieties of laws , there was a necessity that the wisest of men , should both at first make them , and after expound , and administer them . and good reason , the best and bravest of men , should have to do with laws ; since they are the standards of justice , and the rules of conscience , in matters civil , and nor mala per se , both to kings and people ; and upon this ground , not made by advice of raw and hot-headed youth , those , of old assistebant curiae foribus , & concilii publici spectatores , antequam , consortes erant , as tacitus teaches us , but as justice was specificated by nine several laws , the divine law , the law of nature , of nations , of the church , the civil law , customary law , the law of honesty , necessity , positivity , as phavorinus has noted it , and according to all these things are determined just ; so the justicers of these laws had need have great abilities to know and apply their judgments to the severalities of them , and their emergencies . the consideration of which , in the consequence of it , has dictated to men , prudently to acquiesce in the judgments of learned and well-parted men , as the competentest distributers of justice to the rest of the world , who being better qualified to act , yet are less exact in matters of design and decision then they : so that the great work of enablement to legislation , for which fabius and sabinus were called the cato's ; domitius vlpian , and iulius paulus , the two poles vertices legum ; pomponius the oracle skill'd , usque ad finibriam & extrema scientiarum ; papinian iuris asylum , the prince of law , and refuge of distress : i say , that which proclaimed these so useful in their times , was the universal science they had of right and wrong , good and evil , and the catholique disquisition that they had made of the usages and apprehensions of nations , and men concerning them . this they termed knowledge , the door to practique justice , and wisdom of action : so epictetus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. first knowledge enters into man , then her sisters fortitude and iustice. for as in the world , the first creature was light ; so in man , the initial virtue is knowledge , which is not barely the use of reason , but a distinct and applicative apposite use of it to persons and things . for by this method , doth god in nature carry man to improvement and action ; by his speculative intellect he understands good ; by his practical intellect affects it ; by his reason , he discerns between good and evil ; by his freedom of will he chooses , by his will consents , by his wit finds out mediums to his end , and by a close of all , comes to the mark he aims at . so that as phavorinus marshals them ; that which sense perceives , imagination represents , cogitation forms , the wit searches out , reason judges of , memory retains , and the understanding apprehends , and is brought on by contemplation , that is said to be knowledge : so that the knowledge of the law , that the chancellour ushers in here , is not knowledge of comprehension , which the greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; for that , though some oratours use promiscuously with apprehendere ; yet quintilian discriminates , latior comprehensio , says he . for so to know the law , and justice from it , is impossible for man , unnecessary for a prince ; comprehension in this sense being bonum patriae non viae , peculiare dei & deisicorum , non hominum , according to that of saint paul , we know but in part . but knowledge of apprehension is that quae ad mensuram refertur , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 't is to see as far into a mill-stone , as the opacity and compactness of the body will suffer , and our optique vigour can pierce to . this mediocrity , in our knowledge of the law , is that which the chancellour puts the prince upon attaining : for although deep speculations become professours of arts , who live and thrive by the fame and gain of their procedures therein , yet to men who study for delight , and to know how to regulate themselves to god , and to others , lesser proportions of criticalness and profundity will serve : yea , it sometimes falls out by god's judgment on curiosity , that our sin , in searching beyond our tether , brings us to arrive at aversation from god the chief god , and enmity against his image in his adorers , and to be made up of ill ingredients , as porphyrie was ; of whom holstenius professes , he can give no other reason of his hatred of christianity , and that madness , that he vented against it , quàm quod animus atrae bilis fermento turgens , & nimia eruditionis copia inflatus , semet ipsum non caperet , ita & hujus exemplo patuit , mundi sapientiam insipientiam esse apud deum . so that the apprehenderis here , is a term of restraint , wherein the prescriber limits the universality of his counsel , the prince he would have to know the law , because it 's the rule of justice , and that the crown of government , and that the earthly paradise of kings : but this knowledge he would have modest and moderate , true for the nature , but not ambitious of ultimacy , to know ultra quod non , to boast and brave with , but as the stoique advices , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. to shew our selves bettered by it ; men that are intent upon , and act according to reason , and are not acted by transports , and giddy fanaticismes , which makes much of what is little , and most of what is nothing , but folly and madness . dicit namque philosophus quòd nihil amatum nisi cognitum . this the text adds , to make knowledge of the law , more to be affected by the prince , because 't is the means of loves both admission and perfection . for as there is no desire of that we know not , so no degree of desire of it and love to it , further or other , then the knowledge of it is in us . 't is true good is the object of love ; but because good , is not to us good , but as known and apprehended so by us : therefore the philosopher first , and our chancellour next from him , tells us , nihil amatum nisi cognitum , which brings to my thought the wisdom of plotinus , in making love the consequence of knowledge , to be descended from the two extreams of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 indigence , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 affluence , to shew , that it is the mean between their excesses , and compounds want and abundance , to make a conjunct content ; for as if it were all good , and wanted nothing , 't would not look abroad in the power of a communicative effect : so if it were wholly void of good , and clogg'd with misery , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , it would never endeavour after good . the power and providence of god is then notable , in so dexterously composing things , that as knowledge occasions love , so love improveth knowledge ; since as that we love we enquire into ; so that we enquire into we love : so says experience from reason by the philosopher here quoted , dicit námque philosophus . this philosophe here is aristotle , the master of alexander the great , called here so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because no less a conquerour of art and nature , then his pupil was of people and countreys : as the one did reduce all to his power by puissant armies , laying level all opposition against him , and making the inaccessableness of their situation and obstruction plain before him , that every one might see alexander a conquerour , who chalked out his quarters every where , and had no more to do then veni , vidi , vici : so the other , in his subtile philosophy , and laborious history of nature , did denude those secrecies that before him were not known , and made men after him a fair access to the most cryptique , and obstruse veins and mines of intellectual riches ; which the learned world finding , attribute to him more then mortal eulogies , and prefer him in their doxologies beyond any that is meer man. i know the greeks had high value of socrates , and pythagoras ; the indians of apollonius tyanaeus ; the poets of hercules and tully , taking this rise from the interpretation of the oracle , which from the bees sitting on plato's lips , when but in swadling clouts , presaged his incomparable eloquence ; though i say tully admire plato so far , that he terms him , deus philosophorum , deus ille noster plato , as he wrote to his friend , princeps ingenii & doctrinae , cic. quint. fratri . lib. . exagitator omnium rhetorum in orat. . . though he calls plato gravissimus ; yet aristotle will carry the name of the philosopher , a name given him for his eminency in knowledge , for which the antients gave names of honour according to their peculiar merits ; bion they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the rhetorician ; arrianus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the lover of truth , atheneus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the wise-man at meals ; strabo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the geographer ; dyonisius : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the describer ; stephanus bizautinus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the writer of nations and customs ; iulian 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the apostate ; hermogenes rhetor , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the writer of the state of causes ; herodian grammaticus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the artist ; chaeroboscus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the countrey artist ; charon , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the ferry-man , &c. yea , in our own nation , it has , and is used thus , bede was called the venerable , halensis the accurate , scotus the subtile , bradwardine the profound , ockham the invincible , hooker the judicious . all which names were given them , not ad excitandam invidiam , sed ad perpetuandam memoriam of their incomparable respective merits . in like manner , as the holy ghost does affix reproaches on evil men , as on ieroboam , he who made israel to sin , & malo exemplo , & malo , praecepto ; and ahab , he who sold himself to do wickedness , ex malo proposito , & in malum finem , and iudas , he that was called iscariot the traytor , because he sold his master , malo genio , & pro malo lucro ; and commends the virtues of good men , by terms of diginity , as abraham , the father of the faithful ; noah , the preacher of righteousness , moses , the law-giver , and friend of god ; job the patientest man ; david , the man after god's own heart ; solomon , the wisest of men ; paul , the apostle of the gentiles ; john the divine . so other prophane authours , in the like cases , have done , and by so doing , as they have stained and battoon'd the coat-armour of divers hectors in villany and heresie , so have they adorned with all possible trophies of virtue the memories and names of others . amongst whom , our aristotle the philosopher , is not the least nor last to be placed ; to make good which verdict , a jury of authours , good men and true , shall be produced to confirm this title on him , not so much in the name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for all authours allow that to him , but in the merit so to be called . porphyrius says , the pythagoreans did account aristotle a collector from , and a resiner of pythagoras his discoveries and doctrine , as he was the tenth eminent person from him , after plato the ninth : and this must argue him , as both judicious to be able to do it , so notably benefited in science by so doing . plato gives so large a testimony of him , in calling him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the reader of all authours , that he almost deifies him , and makes him to books by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , what saint paul asserts god to men in his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . quintilian knows not , ( though he himself be , of oratours one of the first three ) what to write worthy him , quid aristotelem , &c. what shall i say of aristotle , whom i know not whence mostly to commend , for knowledge of things and books beyond measure , sweetness of expression , acuteness of invention , and variety of all learning . ammonius records of him , that in philosophy 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he exceeded the proportions of man , having gone through the exact course of that study . and what could laertius say more then he does of him , when he publishes him the great master of arts , and sums up his works to verses . plutarch ascribes much of alexander's victory to the parts that aristotle's institution raised and enlarged in him . averroes ( as i find him in rosselius ) accounting him a prodogie , and blazing star of knowledge , breaks out into these words , laudemus deum qui seperavit hunc unum ab aliis , &c. let us give thanks to god , that has separated this one he to a perfect knowledge of all things , having appropriated wisdom to him , whom he calls the father of philosophy , and master of method . pliny publishes him , vir summus in omni doctrina ; which is as much as if he had said , he had read whatever was written , and digested into use whatever he had read . tully extols him as the flumen orationis aureum , &c. the golden sea of speech , most admirable , and abundantly knowing . yea , so far exceeds himself , that he positively avers aristoteles is the he , whom i most admire . seneca grants him , the captain of all good arts , making theophrastus his famous disciple beloved by him . vossius calls him magnus aristoteles , non philosophus modo summus , &c. not onely a great philosopher , but a patron to history and poetry . causabon protests him , summum ( bone deus ) virum , &c. the most excellent man , the eagle of philosophy . duval compares aristotle's works , and so him , to the purple vest , which alcisthenes had to the wonder end ; for which dyonisius the elder gave one hundred and twenty talents ; adding , nihil hìc vile videas , nihil abjectum , &c. omnia pulchra , honesta , optima , praestantissima . and budaeus says as much as they all in those words , is author qui res omnes ratione , &c. he is the man who rationally , and in a way of science , treats of all things ; yea , even of those things , which without him , would hardly have held capable of such treatment . well then might aristotle be called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , though he had , as aldrovandus , gassendus , and even plutarch himself make good , sundry mistakes , as no man is without them ( no not his correctors ) though after him incomparable authours , since he not onely shewed the way to all after ingenuity , but even made it so facile , that not to exceed him , ( which is not ever the happiness , though the possibility of after discoveries , is a piece of non-proficiency , ) as picus mirandula has at large discoursed . this i the rather here touch upon , because the passions of men have been so keen and virulent upon account of this authour ; some crying him up as the onely he , panè post deos deus , and making his philosophy , and all of him , so far divine , that to vary from him in a tittle , has been by them censured of folly , and to oppose and decline him , condemned for a kind of sacriledge . others so servently acted against him , that they thought no envy truculent enough to his person , no severity too tart for his writings . as when he lived , he was fain to peragrate , to avoid the fury of destruction in his own countrey , every mom●s carping at him , and bedirting his name with their mordacious libels , till at last he made the proverb good , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; for his learning made him welcome abroad , whom it could not render quiet at home ; which shews the benefit of breeding , whereby men support themselves under the vicissitudes of fortunes , which nero comforted himself with , when he was fore-told by the mathematicians , that he should be deprived of his empire ; and dyonis●us of syracuse , found his onely refuge , when his tyranny left him , to take up the trade of teaching arts and musique . i say , as aristotle had these ruffles alive , so since has he been coursely dealt with by passionate men , and the storms of their servours impelled by interess . the whole parisian colledge , in anno . decreed his books to be burned , as ill doctrine to men , and blasphemy against god. and philo long ago , though he debacchates not against him , yet speaks with an indifferency , which amounts to a reproach , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. aristotle , saith he , whom i know not how piously and soundly learned , says so . all which tells us , that envy attends great parts , as many have to their sorrow found it ; and further more shall . and therefore , though great parts are seldome so kept in , but time and actions evidence them : so do they often make their havers unhappy ; some in making them feared , and pack'd abroad , least , as eclipses to favourites , they should darken them , that would be all that lustre and favour can make them , or putting them upon such thristless searches , as waste fortune , and reduce them to need . so far are men from admiring and loving , what god has made conspicuous , as was this philosopher aristotle , who had consummatam scientiam rerum omnium , as mirandula makes good against the astrologers , that their eye is evil , because his has been good . so much of this philosophus in our text. now of what he wrote , nihil amatum nisi cognitum . this position , in terminis , as here , is not from ought i can find in the philosopher , but the sense , and very near the words of it , is in him , in these words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that is , all learning , and discipline in art , is from antecedent knowledge , which is so necessary , that , as without the senses , no orderly and pleasant life , if any at all , can be ; so neither without knowledge can life of love be . hence the philosopher makes society , familiarity , and alliance , furtherances and progresses to love , and the heighth of it friendship . plotinus confirms aristotle ; for he calls love to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. an implanted apprehension , notion and cognation , on which his commentator observes , actus quidem intellectus omnino immobilis est , actus imaginationis omnino mobilis , actus denique rationis est mixtus , neque potest anima esse congruum universi mediam nisi tria hec inse possideret , and plato calling love eros , and plotinus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 having its substance from vision , seemes to conclude love a matter of knowledge : for though it be true , that love may not know , neither that which is most lovely , nor all , that is lovely in the object it loves , yet it is also true , that where ever any degree of love is , there is some knowledge introductory to , and obsignatiue of it ; for love moves from the understanding to its termination in the will , and before the act of the will , there is no liberty in the intellect ; so that when , what the understanding presents , the will complyes with , then love warms it self in the affections , and thence communicates it self to the object of it , and the object of love being good , and good being the object of knowledg , it followes , that as whatsoever we desire to know , we love to obtain , so what we obtain by knowledg , we love , as good : and nothing can be the object of love , but what is so made by the prospect of knowleeg , which god confirms by several texts in holy writ , when he promises that all his shall know him , from the least to the greatest , and what then , they shall know him as the means to their trust in him , which is the perfectest act of love , they that know thy name , will put their trust in thee . and our lord intended this in the order of those words , if ye know these things , blessed are ye , if ye do them . quare fabius orator ait , quòd faelices essent artes si de illis soli artifices judicarent . this sentence of quintilian's is some what like that of plato's , which marcus antoninus had almost alwayes in his mouth florere civitates , &c. that cities flourished when either philosophers ruled them , or they that ruled them , were philosophers . now this fabius was fabius quintilian , ( son to fabius causidicus , grandson to the quintilian declamator , which seneca makes his contemporary , and the renowned tutor to caelius , and honourably mentioned by martial , quintiliane vagae moderator summae juventae gloria romanae quintiliane togae . to rome's youth learnings law quintilian gave , their long robe by his glory became brave . yea , not onely famous in rome for notable defence of causes vivâ voce , but eviden cing a magistry in that faculty by his institutions of oratory , and his declamations which to this day are of great esteem and authority , and that so upon the account not onely of parts but virtue , if he practised what he wrote ; for besides , that he began his twelfth book with a chapter entitled , non posse oratorem esse , nisi virum bonum ; backing his assertion with nervous reasons , concluding mutos ●ascere , & egore omni ratione satiùs fuisset , quàm providentiae munera in mutuam perniciem convertere ; all good authours do give him characters not contrary to the merit of such virtue and learning : trebellius pollio publishes him declamatorem generis humani acutissimum ; sidonius apollinaris mentions acrimoniam quintiliani , others term him romanae eloquentiae censor , coriphaeus oratorum , criticorum omnium 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , optimus decendi artifex , orator , eximius ac necessarius . now this fabius is not called rhetor ( as those were , qui artem oratoriam profitentur , & dicendi praeceptatradunt , as tully's words are ; for these , though by some made equivalent to orators , i take a form below them ) but orator of the rank of those whom tully describes , orator est vir bonus dicendi peritus , qui in causis publicis , & privatis , plenâ & perfectâ utitur eloquentiâ ; such as were not onely advocates at home but embassadours abroad , faederum , pacis , belli , induciarum oratores , of these seneca in his , and . epistle writes notably . thus much of our fabius orator who , now of what he wrote here quoted , faelices essent artes si de illis soli judicarent artifices : by arts he meanes that which sipontinus defines esse facultatem quae praeceptis quibu●dam ac regalis continetur , tully makes it constare ex multis animi conceptionibus ; indeed when all is said , it is but reason of practice and observation followed by diligence which comes to be dux certior quàm natura . as all ingenious inventions are termed arts , so have arts attributions from authors suitable to the variety and diversity of such inventions , there is imperatoria ars , armorum ars , medentium ars , magica ars , palaestrica ars , every thing that is what it is , ex cognitione & comprehensione rerum , tully allowes art . now whereas he sayes , faelices essent artes , he means as much as fortunate & succedentes : so virgil . aeneid . vivite faelices quibus est fortuna peracta : so tully , ad casum fortunámque faelix vir ; so quod bonum , faustum , faelix , fortunatúmque esset , praefabantur rebus omnibus agendis antiqui , his meaning is , 't would be a gaudy time , and arts would be undoubtedly prosperous , if onely they which had art , were judges of art . si de illis soli judicarent artifices , that is , if onely men of judgment in arts might judge of arts , for though i know any man is counted an artificer , who exercises an art , yet as to this sense of quintilian , that is required to be taken in , which he sayes , artifex est qui percipit artem : and so festus , artifices dicti quòd scientiam suam per , actus exerceant , sive quòd aptè opera inter se arctent , so plin. lib. . c. . so that artifices here are men of proficiency , masters ; so tully calls exact men , dicendi artifices & doctores , and suavitatis artifex consuetudo , and morbi artifex , and generally every excellency is called artifice ; from whence i gather , our text-master thought arts then onely well dealt with , when they were not concluded before heard , nor judged by injudicious men , but had a legal and rational tryal per pares . which if it were , arts would not hear so ill as they do , some reproach them as the roads to ruine ; breed up a man ingeniously , and a beggar by all means he must be ; that is the prattle of ignorance 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. art is to men the port of misfortune : and iulius graecinus found it so , whom the historian writes to be a senator of great eloquence and wisdom in ordering publique affaires , but he adds iísque virtutibus iram caii caesaris meritus . indeed many brave men finde it so through the occult providence of god , and the manifest envy of men , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. ignorance make a fortune where knowledg onely discouers art , this is the lot of scientifiquenesse often , but not always ; many multitudes of men have by learning and arts , come to riches , honour , what not ? when they have been so happy to be understood aright , and lived in an age and place , where arts were acceptable and fairly valued ; for which virgil was not onely by augustus , who therefore was his munificent patron , but also by the great wits of ages , macrobius long ago gave a noble testimony of him , est tam scientiâ profundus quàm amaenus ingenio , miranda est hujus poëtae , & circa nostra , & circa externa sacra doctrina , non potest intelligi profunditas maronis sine divini , & humani juris scientia ; so pliny terms him solertissimarum aurium solertissimus blanditor ; cerda , donatus and servius are not behinde , but above all scaliger , resplendent gemma in ejus carmine ; compouit mellita , & nectarea ; addit tot venustates quot verba ; inest in eo phrasis regia & ipsius apollinis ore digna , sic puto loqui deorum proceres in caelestibus conciliis , non si ipse jupiter poëta sit , meliùs loquatur ; these incouragements do the learned give learning by the values of them . and hence comes it to passe that learning is so necessary for a man in power . for learning in a man of power and place makes him unprejudiced , and cleares his eyesight to an eagle-eyed clarity , it distinguishes between subjects and accidents , between what learning does , and what the man in which learning is , does ; and when it condemns the man , it justifies his art ; hence comes quintilian to account arts happy , if artists onely judged of them : because , they will not onely value them as they are , but not undervalue them for some adjunct defects ; protogenes valued one plain line of apelles , and the foam , or any minute and unbeautified particle of picture from zeuxis , or any he that does pingere aternitatem . or one sentence of masculine wit boldly and bravely worded , shall have more commendation from a knowing and accomplished master , then all the hecatombs and pyramids of rodomontado'd impertenances , which are darlings to the plebs , shall have : whereas others judge of arts as blinde men do of colours , hab-nab , hit or miss , no matter whether , crying up as the superstitious athenians did , a false god ; nay inscribing an altar to the unknown god , when they decry the true one onely god ; so they advancing trite , vain vile , artlesse art , decry real and regular art , reversing the escutcheon of rectitude , and making that vile which is excellent , as polaemon the grammarian did by marcus varro , the most learned of the romans , whom he called porcus , when he was the jewel of his age ; and the jewes did by our lord , whom they made a devil , and a friend of publicans and sinners , and the ethniques , did by the christians , whom they proclaimed disturbers of governments , and flagitious , when none were more holy , humble and submiss then they ; i say while men and things are thus misjudged , and the keen edge of ill will , or the blunt of ignorance is turned to them in their judgement of them , no halcyon dayes of art can be hoped for . but when god reduces things to rights , and puts men of art in place and power , then arts are like to thrive , quia judicantur ab artificibus , as the poét said of that pope , excoluit doctos , doctior ipse priùs . and therefore that reproof of tully is very appositely to be brought in here , hic quidem quamvìs eruditus sit sicut est , haec magistro concedat aristoteli cauere ipse doceat , benè enim illo proverbio graecorum praecipitur , quam quisque nôrit artem , in ea se exerceat : for since that of the harper in athenaeus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , every man is the properest iudge of his own harp ; learning and arts are never properly judged , nor to the proportion of their merits , till they be judged by artists . ignotum vero non solum non amari , sed & sperni solet , quo poëta quidem sic ait , omnia quae nescit , dicet spernenda colonus . if knowledge be the window that lets in love , ignorance is the nusance that annoyes and obscures the light and lustre of it , for it does not onely cause an inexpression of love , but an expression of hatred its contrary , since hatred of good arises from ignorance of it ; for did we know good to be what it is , we would love it as we ought , which caused the philosopher not onely to light a candle at noon day , to seek a wise man in the multitude ; but professe that if virtue could be denuded , so that men could see her pulchritude , they would be impatient to be absent from her , and to be in any condition without her . indeed it is a part of the penal pravity of our natures to be ignorant of the life of god , and without him in our understandings , and while we continue in this obccecation , as god is not in all our thoughts , so is nothing more the study of our corruption then to set light by his counsel , commands , rule , spirits , son , all that has his impresse on it , and the reason is onely from our ignorance of god , he is not in all our thoughts , and hereupon not before our eyes , but instead of loving him as the most excellent , ( which knowledge of him would represent and perfectly assure to us ) we postpone him to all objects we prefer before him in love as we apprehend above him by our knowledge ; and so the rule is in all things , so far they are loved and despised , as they are more or lesse known by us . every thing sayes solomon , has a season in which it is most gay , and in every man , and creature there is a pleasure and grandeur which with the contraries of them are appropriate to them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. said the moralist , the horse delights in his traces , the ox becomes his yoak , the dolphin pleaseth himself to passe by the ship under sayl , and to see men his darlings aboard them ; the boar loves hunting and the prey of it ; the dog is eager on his sport according to the scent of his kinde : and so amongst men , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the coulter pleases the swayn as well as the scepter the prince ; and the sword as highly accomplishes as the souldier thinks , as the book does the scholar him , so much is the love of man tethered to himself , and so does he philautize his own feature and the objects of his pompous fancy , that he is apt to make that his canton , which seneca layes down , tantùm sapienti sua quantùm deo omnis aet as patet , est aliquod quò sapiens antecedat deum , on which muretus writes , impia & intollerabilis arrogantia stoicorum , quò non satìs esse docebant sapientem suum cum deo ex aequo componere , nisi etiam anteponerent , and justly , for the excesse of his pride ought he tobe condemned , who thus raises a scalade against the knowledg of god and the humbling effects of it . which alas to their just grief , if they had eyes to see and hearts to mourn for it , not onely the best of men are subject to , but even the basest ; not almost he , that is hardly worthy to be fellowed with the dogs of a wise mans flock , but abounds in conceit of himself ; not onely alexander will be a god , iulius caesar make a marriage between heaven and earth in his power over both , octavian reduce the mettal of rome to a vassalage under him , beginning to dare the senate at twenty yeares of age , and keeping roysters about him , who shall nose the senators , and tell them pointing to their swords , hic faciet si vos non feceritis , no wonder , though these monsters in manhood leviathan like , swallowing up all thought of god , mali malorum daemonum & fictores & sacerdotes & cultores , as the father terms them , are so hot-headed , but to find the foex and tail of mankind thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to smell of pride , that 's somewhat strange ; yet most true , so it follows , quo dicipoëta quidam , omnia quae nescit dicit spernenda colonus . this is a verse out of some of the poet minors , the sense of it is , that even the reasonlessest of men , who are but one degree on this side beasts , have yet the sensuality , or senselessness rather , to contemn what they know not ; which made maro , the socrates of poets , say , o fortunatos nimium cives bona si sua norint , agricolas . o fortunate the countrey swain , though his life be a life of pain . accounting them happy in that countrey serenity , which their life of exemption from trouble gives them : though god knows , stupid souls that they are , they are seldom thankful , or contented with what they have . this onely they excel in , that they can judge as well of utile and dulce , as any men , and make as little use of it , beyond rude huffs , and high-shooe insolence , in which sense the adage is verified of them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 proud and ignorant ; not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , conspicuous and illustrious in acts of hospitality and kindness ; but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whom their happiness affects not , because they understand it not . this makes them think themselves the best of the pack of men that live in kingdoms , because they know not wherein by men of more exact breeding and parts , they are out-gone . what this colonus is , needs little explication ; properly it imported cultor agrorum , a husband-man , whom tully gives epethites of optimus , parcissimus , modestissimus , frugalissimus ; and as it imported a citizen of rome sent abroad to plant , and obliged to live according to the romane laws , so had it also a note of depreciation on it , and differed a little from a slave : to which plautus alludes , when he scoffingly speaks of colonus catenarum , for one held in prison . and tully , when he would turn men to the most barbarous masters of reason , bids us , à colono rationes accipere . concerning these , the digest speaks much ; and alciate on the th law. our law also , because they are men of narrowest reason , and lowest breeding decryes them all offices of note ; no man of this rank can be justice of peace , knight , high sheriff , or member to parliament . yet these men having skill in countrey affairs , and being ignorant of any thing beyond the plough , and the utensils of husbandry , contemn books and arts , as useless and unnecessary . et non coloni solùm vox hae est , sed & doctorum peritissimorum quoque virorum . which he adds , in confirmation of the rule he gave , that nothing is beloved further then 't is known : for not onely the vulgar sort of men , who covet no accomplishments besides how to dig , delve , sow , reap , hedge , ditch , whistle , and tend horses ; yet are in love with their employments , because they know them , and are onely intellectual proficients in them , but even artly men value art upon no other grounds ; for as their knowledge is of , so their addiction to , and affection for them , is . for though it be common to all men , to know the common notions of night and day , black and white , which perhaps gave rise to the proverb , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , yet to search into the abscondita of things , and thence to report the nature of them , where men and things do as the sepia , or cottle-fish do , to prevent its being surprized , send forth a quantity of black blood , which so thickens the water , that its white body cannot be seen : to which athenaeus alludes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 o're her fair body she can draw a cloud , then lose her takers , and her own life shroud . and catallus describes caesar , notwithstanding all his disguises , nil nimium studeo caesar tibi velle placere , nec scire utrum sis , albus an ater homo . i nothing study much , not caesar thee , whether th' art white or black , is nought to me . this , i say , to do , must proceed from knowledge , and is called art in him that knows how thus to demean himself . hence tully makes rubrius cassinas , who took one that was little of eminency in appearance , and made him his heir , and thereupon minds him of his love to him ; te is quem nunquam vidisti , fecit haeredem , & quidem vide quàmte amar it is qui albus atérve fueris ignorans , fratris filium praeteriit . i say , tully not onely in that remembers the person so favoured to be mindful of , and thankful for it , but censures rubrius , as more doting by passion then directed by judgment , as doctissimi and peritissimi here ought to be . for tully has matched these epethites together , to set forth the double nature of art , both in speculation and action . doctissimi theoria , peritissimi praxi ; for unless they both go together , they make no fair shew to perform the excellent end of right judgment , and to fix love upon the foundation of arts known , and thence delighted in . nam si ad philosophum naturalem , qui in mathematica nunquam studet , metaphisicus dicat , quòd scientia sua considerat res separatas ab omni materia , & motu secundum esse , & secundum rationem , vel mathematicus dicat , quòd sua scientia consideratres conjunctas materiae , & motui secundùm esse , sed seperatas secundum rationem , ambos hos licet philosophos , philosophus ille naturalis , qui nunquam novit res aliquas seperatas à materia , & motu essentia vel ratione , spernet , corúmque scientias licet sua scientia nobiliores ipse deridebit , non alia ductus causa , nisi quia corum sententias ipse penitus ignorat . here the chancellour instances in philosophers , the wisest and learnedest of men , as dissenting and detracting from one another , as the parts of philosophy , which they are particularly versed in , and bent to prosecute , are divers from each other in the object of their science , and the reason of them . for since philosophy is the study of wisdom , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a study of divine and admirable mystery : and philosophers are not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , men of prate and discourse , versed in no good and profitable method of art , having heads swollen with vapour and ostentation , but men that de wholly give up themselves to contemplation and disquisition of nature , as philo at large discourses , since they are asaphs , men that do wisely ruminate , and perpend what they do . this considered , ( as heretofore in the notes on the fourth chapter , has been larglyer written of ) invests philosophers with great respects , and expects them men of much reason , and therefore probable to be exact and scrupulous . now these philosophers our text calls by three several names , as they intend three distinct parts of philosophy ; the natural philosopher ; the metaphysitian ; the mathematician : all which , says our text , have principles so different each from other , that as the one may be ignorant in , so obstinate against the principles and practises of the other ; and that from this ground , that every one reduces art to his own standard , and will have all that is not what he knows and loves , false and useless . here now i might ravel out into a large field , and discourse of philosophers and philosophy to an infinity of needless trouble to my self , and my reader : but i shall study more thrift of time , and compose my discourse to those modest limits , and soft touches , as best suit with a commentator that intends profit and delight to his reader . certainly philosophy is a most excellent gift of god , and ornament of man ; philo says it 's the chief ingredient into man's prerogative , above the other works of god's hand ; and plotinus calls men learned in it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , prepared to fly high even to heaven , in the power of their mental endowments thereby , which was the reason , that architas said a philosopher was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and homer stiles him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as one , habilis ad omnes disciplinas , according to phavorinus , which should mind him that professes it , to live as one that has his mind divinely endowed , and called upon to all exemplary and practical virtue , which philo makes so peculiarly the part of a philosopher , as nothing more is : for as it is not bags but money ; nor deeds but lands , nor books but knowledge , to make use of them ; nor numbers of men , but discipline and courage , that declares a man rich , learned , fortunate , victorious ; so is it not the notion , but practice of philosophy , that derives on men the honour of being true philosophers . this was the cause plato was wont to say , and m. antoninus repeat from him that saying , then cities flourish , when philosophers govern them , or when they that govern them are governed by philosophers ; which the antients were so zealous in , that seneca answers us , antiqua philosophia nihil aliud quàm facienda & vitanda praecepit , &c. the antient pristine philosophy consisted onely in rules of doing good , and eschewing evil , and then philosophers were most excellent plain men ; but when they came to be so critically learned , as afterwards they became , all sincerity took leave , and learning was judged rather to consist in subtiliy then virtue , in wrangling wit , rather then in a good life . so he . and hence it is , that whereas virtue was the study of philosophers , and their heats and passions were lulled asleep in the pursuit of her . now since she has been deserted , and her professours have pretended , rather then practised philosophy , she hath degenerated into cavil and contest about words and forms . rhenanus hath learnedly collected a large catalogue of dissents amongst philosophers , which argues onely the disproportion of mortals apprehension , and the vehement choller 's that they are upon interesses of fame and fury expressive of , vitia●es not the reputation of art , for that still remains sacrum quoddam & venerabile , as seneca terms it . ep. . vitae lex , ep. . ultimum instrumentum & additamentum , ep. . inexpugnabilis murus quem fortuna multis machinis lacessitam non transit . ep. . omnibus praeferenda artibus , rebusque . ep. . and the philosophers , not being defective to themselves , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c high talkers of , while little livers to virtue , make not themselves a reproach , but rather recover their antique reputation by such severities , as may eliminate all vice , and stop the mouth of all detraction . so seneca's rule is , sapient omnia quae debet sine ullius malae rei ministerio efficiet , nihilque admiscebit cujus modum solicitus observet . which premised , the divisions of philosophy into parts , is rather a matter of method and order , then any thing else ; and since it is the contemplation of wisdom , in preparation for action , can have no variety in it , but what is gradual , and has a sense of ministration to the consequution of the noble end of it , to wit , how to know to do . whereunto , because the several attoms and minute particles ( making the mass and bulk ) with the variety of their use , and operation in ascent to the culmen of it , is to be considered , which perhaps is somewhat towards that which plotinus lays down , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the understanding gives perspicuous principles , which done , the soul compounds couples , and distributes them , till they come to perfect understanding . i crave leave therefore not so much to cherish and confirm debate of words , and variety of expression , as to write somewhat useful to the practical philosophy , to which the speculative is but ducent . for to little purpose is all knowledge of essences , and abstracted notions , if they refine not the reason , and brighten it to a perfect oriency in a life of exemplary virtue . aureolus ingenuously casts the sciences , which is philosophy , into this model : the first three he calls scientiae sermocinales sciences of speech ; grammar , logick , rhetorique . to speak properly and according to use , subtilly and according to rule , floridly to the heighth of captation and eloquence , either in prose or verse . the second three he calls purely sensible and experimental , natural , moral , medicinal . to know the nature the virtues , vices of things , and the adjuments to rectitude , and the restoration of declensions from it . two purely mathematical , arithmetique , and geometry , which instruct the use of numbers , weights , and measures . three medious between the mathematiques and experimental sciences , astrologie , harmony , perspective ; one meerly intellectual metaphisicks . thus that golden wit. nor is philo the iew much , if at all behind him , who compares philosopy to a gallant plantation : the physicks answers trees and plants , the moral fruits , the rational to hedges and bounds ; now ( says he ) as the fences and hedges secures the fruits , so the rational philosophy is the defence of the moral and natural . from both which i collect , that god has made a harmony in art , the preservation of which is the life of science ; there is then no difference in philosophy , but what arises by accident , and either pride , or wilful mistake of men : for as the fly does as well set forth the majesty and power of god in this production , as the elephant ; so in the least principle of service , the bounty and wisdom of god is patefied , as well as in the greatest . the natural philosopher he searches into the nature of compound things , and their revolutions , elements , generation , corruption , meteors , minerals , tendency of beasts , vegetables , and all their species ; the metaphysitian he understands indeed substance , accidents all sensible beings , yet separate from matter , the mathematician he makes disquisition of those things which he can make good the reason of , by demonstration obvious and plain to the sense ; but metaphysiques , being the contemplation of divine and abstract beings , that is of things separate from matter and form , is the foundation of all other things , not the mathematicks excepted ; yea , and all these improving ( to that we call practical philosophy ) makes up budaeus his compleat character of a philosopher , is qui studeat omnium rerum , &c. he that studies to know the nature of all things divine and humane with the causes of them , and applyes his knowledge , to produce a life of virtue and reason , suitable to such knowledge , he deserves worthy to be counted a philosopher , are his words full of weight and worth . order then is to be kept in sciences , which will best be done by love to them , founded upon knowledge of them ; for whence come heats but upon ignorance , on the assaylants part , and zeal of knowledge on the defendants : the composure of which will best be brought about by their unanimity , to credit study with practice . for when all is done that art can witness to , and woo the world by to love her ; if it leave the man that has it like barlaam the monk , whom the historian makes a rare critique in euclid , aristotle , plato , but vitiating all this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by filling a peaceable church with discord and cavils , fire-balls thrown about by his wit. better i say , know nothing , then thus to know any thing : better to know a little usefully , then much to no other end ; but to dishonour god , and disturb men . as then there must be knowledge in science to make men value them , so where there is not , there will be contempt of them , which their followers not enduring , proceeds to enmity at last between them ; yea , and if the learned side get the victory by argument , yet if they have not a strenuity of practice to consort with their learning , well they may obtain of men flashes of fame , but real and true victors they will not be . philo elegantly reasons this with the learned man in these words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. what reason , says he , hast thou , o man , to consider the nature of heavenly bodies , and vault up into the knowledge of things beyond thy reach : what sensuality hast thou by this skill purged out of thee ? what mastery over desires and passions obtained ? art thou more divine , and less carnal by this then thou wast ? if not , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. as trees signifie nothing , if they be barren , and bear no fruit ; so the knowledge of nature amounts to nothing , if it advance not virtue in us . from all which , argued upon occasion of our texts instance of arts so far , and no farther loved then known , the conclusion is , that knowledge is the key to love , and all the fruits of it . and where it truly and soberly is , does not heighten passion , but trims and polishes it to a serious purpose , that is , to magnifie god , accord with men , and exemplifie virtue in a daily practice of it ; which well executed , will evidence to men , that god has made a connection of sciences , and that where any truly is , there are such degrees of universality , as make men civil to those arts they are not masters of , and rude dictators in nothing that is cryptique and mutable : so true is that of calcagninus , ità juncta & copulata sunt inter se naturâ , ùt sine piaculo disjungi non possunt ; nam sicut . in corpore humano nihil frustrà positum est , quod ad suum opus est institutum , caterisque partibus respondeat , ut non sine pernicie avelli possit , ità disciplina , id est , humanae vitae membra inter se connexa sunt , ut seorsim positae mancae & mutiles sunt , nemo ergo phisica sine logicis , nemo logica sine mathematicis , nemo omnia sine orationis praesidio assequatur . though therefore , there may be upon various degrees of apprehension , more or less proportions of zeal and indifferency towards arts , and the rules of them , according to the measure of mens expending of themselves upon them ; yet will there ever be in true philosophers such a moderation , as keeps from the deridebit of our text. for though our chancellour phrases thus the effect of ignorance and disaffection , yet does he uses this hyperbole , rather to make his arguments more weighty , then to affirm the very specifique effect of them to be derision . for that , importing scorn , argues enmity , and superb prevalency in the soul against the principles of wisdom , which calm and soften it . now a wise and virtuous man will rather pitty , and pray for mens reductions from errours prejudices and mistakes , then contemn and reproach them for such their defects and alloys . and hence is it seen , that those that are the merry mad satyrists of ages , whose wits run to waste in pasquillous invectives , and mordacities , lucian-like , sprout into such prodigious excesses of folly , that they need no hell more then the vanity of their own actions procures them ; while every calm mind acquiesces in the serious study of himself , and in the charitable opinion of others , whom because he knows not erroneous from pertinacy , he uncharitably censures not to be abominated ; so that though wise men may with plato smile , yea and laugh , which bessarion says he never did ; yet do they not do it with levity , so as to reproach their internal gravity , or to injure their brother in nature , whom they are bound by the laws of civility , to preserve in his reputation , as to that vanity they are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , neither 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that laughter which makes men quake till they tickle again ; which philostratus renders by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , latè diductógue ore ridere , which we call , to laugh out , and is ascribed to fools and mad-men , nor that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which the profuse effeminate greeks were overtaken with in their feasts of lubricity and compotation : nor that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , when men laugh deceitfully , and from a heart enraged and malicious , which eudemus understands the meaning of that phrase 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou lookest down upon me , and deridest me . i say none of these laughters are good and grave men subject to , because this is not onely to prophane the gravity of their own minds , but to reproach god , who having made nothing in vain , abhors the contempt of any work of his hands . and therefore , though men of learning and charity may disapprove what some other say and write , from the better apprehension they have of things , then those who attend them not perhaps have ; yet still will they abstain from that which the text says , is the too common consequent of different judgments to deride . ipsos deridebit . sic & tu princeps legis angliae peritum miraberis , si dicat quod frater , fratri ne quaquam uterino non succedet in haereditate paternae , sed potius haereditas illa , sorori integri sanguinis sui descendet , aut capitali domino feodi accidet , ut escaeta sua ; cum causam legis hujus tu ignoras , in lege tamen angliae doctum hujus cusus difficultas nullatenus perturbat ; quare & unlgariter dicitur , quod ars non habet inimicum praeter ignorantem . this clause was that for which the fore-going was instanced in ; for the chancellour intending instigation of the prince to the study of the law , as before he had inforced it from the excellency of the law , as the guide to justice , which justice he proposes as the desert of fame , and the foundation of duration in government : so now does he in this clause shew how impossible it is to love what we know not , and to be zealous for that , which our conviction of the excellency and use of it , does not excite us to . and this , as he does rhetorically , by presenting the worst effect of ignorance , opposition , and that with vehemence of whatever is unknown to , and unbeloved by us , so does he discover the dreadful effect of that prepossession by deridere , a carriage of contempt and vilipendency . and this he tells the prince , if he knows not the law , he will make appear by his personal demeanour to men of law , whom thereby he will disoblige and discourage . to prevent which , he inculcates his counsel of him to the study of the law , which alone can make him love it , because acquaiut him with , and sit him for the execution of it . the great consequence of which wise men fore-seeing , do so direct princes in their education , that next the knowledge of god , they prefer the instruction of them in the laws of their polities above all other parts of breeding , as that which mightily relievs them in all the exigencies of government , and shews them the prescript of serenity , if any there be in those heights of honour and sublimation , which charles the . assured his son he never found in them ; and thereupon in the session at bruxels , when he resigned up the government to philip the second his son , he thus spake to him , compatlor tibi , mi fili , &c. i pity thee my son , on whise shoulders , by my resignation of my crown and government to thee , i put a very weighty burthen ; for in all the years that i possessed it , i enjoyed not a minutes time of ease and joy , free from cares and fears . so that the chancellour's application to the prince in the precedent clause , being confirmative of nihil amatum nisi cognitum , points at some inconveniencies ; which unskil'dness in the law will devolve on him . first , the municipe law , which is obvious and clear , angliae perito & in lege angliae docto , will be strange to him . secondly , he will be to seek of the law and reason of that , which as king he must defend , and according to which , by his judges in his courts , he must determine in cases of the half and whole blood . thirdly , he will not know whether estates go , if they have no legal inheritour , and the owner of them dies , sine haerede sanguinis . fourthly , he will be grieved , when he sees the ill effects of them , which are onely avoided , and the trouble of them waded through by knowledge of mind . fifthly , a prince will know , that if ignorance does so incommodate him and his affairs , and art so promote and beautifie them , in pure justice this art and knowledge , where by such advantages are acquired , ought to be promoted and valued , since ars non habet inimicum praeter ignorantem . first , as all arts are obvious to artists , so is it in the lawes , they are plain peritis , & in legibus doctis , such the chancellor calls not those 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , who are all for prate and noise , litium strepitu gaudentes ; but such as p●nè omnia profitentur , men versed in all points of law , in no portion of its necessary knowledge defective , rerum divinarum , humanarúmque notione , justi atque injustique scientia instructi , according to vlpian ; i mean not , nor do i think our chancellor did mean such an attainment of knowledg , as is to a perfection so properly called ; for so no man is capable of knowledg , the perfect god is onely thus perfect , but such a perfection as is haveable , cùm factum est , illud quod fieri inter partes convenit , qui ità consummavit scientiam , ut jam in usu esse possit , as alciat note is , such as enables a man to give counsel and direction , what to do in every case , and a judgement , in cases determined and adjudged . this is the sense of peritus & doctus in legibus , peritus coming from an old verb perio , or ( according to nonius ) aperio , as if one peritus had not onely opened the way , but gone through the path of learning ; some have made these two words nothing discrepant , but tully has given peritus the cast beyond doctus , for doctus a man may be in point of reading , and the wisdom of the minde , who is not peritus , for that implyes doctus and a faculty to set it forth to the utmost advantage , which we call a dexterity ; so tully mentions , sapiens homo , & multarum rerum peritus , and he commends aelius as one , antiquitatis , veterúmque scriptorum literatè peritus , so a good orator is called dicendi peritus ; a good souldier , peritissimus homo belligerandi ; a good teacher of youth , docendi peritus ; a good musitian at the voice , cantare peritus ; one that defines things well , definiendi peritus ; yea a husbandman , that is thorowly versed in culture , perisissimus de agricultura : all which are excellencies of action , and demonstrative skils : so here [ peritis ] intends the masters of them so well versed in law cases , that not onely the present age wherein they that thus excel , live ; but after-ages by their writing conclude them learned , and for that cause reverence them . secondly , to these then , though the case may be clear , that the brother of the half blood , shall not succeed to his brother , but rather the sister of the whole blood ; yet to a man , that knows not the law , 't will be strange . hereupon , if the king knows not the law , he will be ignorant of the reason of the law ; which is this , the brother of the half blood shall not inherit , because , he not being of the compleat blood , is not a compleat heir : so bracton sayes , the law ever was , that an heir must have sanguinem duplicatum ; and fleta lib. . c. . de propinquitate haeredum , so littleton sect . . and so is my lord cook 's opinion on him , not onely , quòd linea recta praefertur transversali , but because the whole blood is , pluis digne de sank , and the general allowed law of england , propinquior excludit propinquum , propinquus remotum , remotus remotiorem . thirdly , nor will a prince without knowledg ( in some degree ) of the law , know whether estates will go : if there be not fratres uterini , yet the law directs to the sisters of the whole blood ; and in this case the law is clear , a sister of the whole bood shall be in statu , as a brother , and inherit quasi he , so littleton , and all other authorities ; the reason whereof is , because proximity of blood , takes of all defects , not onely in the crown where no salique law is good , but in particular estates to the injury of sisters , whom god admitted heires to their father's estates , they having no brothers , numb . xxxvi . and for defect of these heires , either of the body , or the blood , or by will testamentary heires ; though i know till the statute h. . c. . lands were not devisable by will. lands are to descend as an escheate to the grand lord , either the king as the supremus dominus & haeres ; or to the lord to whom he has granted this benefit of his prerogative , as his escheat . escaeta a word of art , escaetae vulgò dicuntur , ( saith ockam ) qua , decedentibus his qui de rege tenent , &c. cum non existit ratione sanguinis haeres , ad fiscum relabuntur , these sir edward cock makes to happen , aut per defectum sanguinis , aut per delictum tenentis , see more of escheats in fleta lib. . c. . what the common law calls eschaeta , the civil laws i suppose names caduca ; so paulus , veterem sponsam in provincia , quam quis administrat , uxorem ducere potest . & dos data , non fit caduca . this word caduca from cadere , they apply to all things that do casually happen , caducas frondes , for leaves ready to fall : caduca haereditas is used by tully , and iuvenal . . satyr . . — propter me scriberis haeres legatum omne cupis , nec non & dulce caducum . and that he is called caducarius , that is heir to him , that has no heir , turnebus is authority ; see brech●us ad legem . p. . lib. de verborum significatione . fourthly , these things as they are obvious to men of parts , study , and businesse in the law , so would be very troublous and hard for a prince to understand , that wholy neglects the consideration of them ; to prevent which , the chancellour conjures the prince to study the law , that he may be ready in understanding of , and right judgement concerning it . and lastly , all the precedent arguments he presses to hinder a dangerous and necessary effect of ignorance , enmity to art and law : for notwithstanding all the good offices , knowledg of art , and of that of the law , doth , yet will it not carry a letterlesse minde above a barbarons hatred of that which is most beneficial ; nor has ever learning been more coursly dealt with , then from those that know it least , ars non habet inimicum nisi ignorantem . for god having made man after his own inage , in the endowments of his reasonable soul , with those perfections in remiss degrees which are eminently in himself , has no doubt in him , if improved to the utmost of his ingenuity , a capacity to act to the life the specifique actions of every creature under his subjection , as phavorinus very notably asserts : and that he does not effect great things by the illuminations of his intellect , proceeds , partly from the penal accessions of sin , which have blunted their edg , and dulled their perception ; and partly from the torpor and negligence of us , who do not put forth what of the remains of our creation is yet upon us . from whence alone it is , that we are so ignorant of our duty , and so unprovided to comply with the providences of god towards us : this makes us ignorant of and pertinacious against things , because we are at a losse concerning them , si bona fide sumus , &c. if we were in earnest , and answered the prescript of god , we would contemn the meretricious avocations of this world , no delights of sense should interrupt our commerce with divine objects ; 't is a light wit that lookes nothing inward , but is wholy swallowed up in the gaity of externals . and in his . epistle , totum mundum ( saith he ) scrutor , &c. i search the whole world and give my self a liberty of delight , great things rouse me up to contemplate their transcendency , this makes me fortified against all unpleasing accidents , which i eye not as casualties , but god's designs , which i am readily to comply with , and chearfully to follow , not as that i cannot , but will not wave , because it is the best fruit of my duty . thus does divine learning fit a man to deny himself , and to be free to persue the errand of his maker , st. ierom tells us , that hippias the philosopher called by the greeks omniscius , was wont to glory that he made every thing about him with his own hand , while he had a knowing head , and a contented minde , his hand was able to supply him with necessaries to nature ; and for humour and phantasie he had the mastery of those ; his learning had made him free from all those little states and airy punctilio's , that ignorance affects , and now he being arrived at wisdom , was by it manu-mitted : no wonder then galen calls arts , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and aristotle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which budeus opposes to those , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because when these deceive a man , and prove no subtersuges in want ; the liberal arts are a kind of portable mines , and magnetequ's that draw fame and fortune to them every where , which confirms that as all knowing men do love knowledg in others and promote it , so none are enemies to , and oppose themselves against it , but such as are ignorant ; which that the prince may not be , the chancellour proceeds to dehort him in the subsequent words . sed absit à te , fili regis , ut inimiceris legibus regni , quo tu successurus es ; vel , ut eas spernas quum justitiam deligere , praedicta sapientae lectio te erudiat . these words do signifie some fears in the chancellour , and those probably not groundlesse ones , that the prince being young , bred abroad , and martially addicted , might be drawn by those treacherous lures of love and revenge , to decline the love of the common-law , and admire some other law , which had more complyance with absolutenesse , and martial rigour then our law has : now this the grave judge foreseeing of evil consequence , the people of england admiring nothing above their lawes , nor loving any governor further then he rules according to them ; he seriously dehorts him from , and cautions him against such humours , and that not cooly and courtlyly , but by an amicitial vehemence , and oratorious pathos , in which all arguments of disswasion were couched . absit àte , as much as if he had said , sir , such an errour in judgement and choice becomes you not , nay rather you are so to abominate , as men do carrions , and sacriledges , incests and sodomies ; the hebrews expresse this absit by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , quod prophane & impurae rei notionem habet , and the learned say 't is used cùm rem diram atque atrocem abominamur , when the children of reuben were charged to have built an altar to confront god's altar , their answer begins with this absit , god forbid that we should rebel against the lord , and turn this day from following the lord , c. xxii . v. . res prophana est , servis tuis hujusmodi facinus designare , so the chaldee paraphrase ; absit abominantis sermo est , estius , erasmus , and grotius jointly affirm , and so saint paul uses it , rom. iii. , , . vi . , . vii . . ix . . xi . . cor vi . . gal. ii . . iii. . vi . . yea the jews long afore gen. xliv . . sam. xii . . xx . . chron. xi . . iob. xxvii . . luk. xx . . to the same purpose the latines absit procul , so cic. vt illiberalitatis , avaritiaeque absit suspicio , and martial , absit à jocorum nostrorum simplicitate malignus interpres , so pliny , procul à nobis , nostrisque literis absint ista : thus 't is in its own nature to be avoided . but absit à te , fili regis , there 's another step to the dehortation , sir , you are son to a king , and a pious king , who , though he suffered , yet was more then a conquerour , your father loved and lived in rule according to the lawes , and he has principled you with justice , according to those lawes the standard of it ; do not stain your high blood and noble greatnesse by actions of meannesse , let peasants and men of low birth expresse lubricity and weaknesse by such illiberal courses as inconsist with regal magnanimity ; let the lawes ( sir ) have the honour of your studying of them , that they may have the fruit of proficiency , your love . and truely if the considerations of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 will not work with men , what will. for since the glory and praise of every thing is from that decency , which it carryes with it , and that conformity which it expresses to the canon of its regulation ; as to fight advisedly , and with courage , commends a souldier , to speak fluently , and with apt tones of elevation and cadence , a true orator ; to argue subtilly and with nervosity , an exact logician , to distinguish critically and with scripture clearnesse , a ready casuist , to dance nimbly and with erect body , a trim courtier ; to plead boldly and with apt strains of captivation , a good advocate ; so to love the laws from experience of the use , worth , and benefit of them , to the ends of gubernative virtue , becomes a governour , and he that reasons not with himself from the point of honour and decency , to the motives of his action , will never act as becomes him : this was it that made abraham implead god's purpose against sodom ( as with reverence i write it ) using a phrase of cogency with men , when he supplicated god , shall not the iudge of all the world do right ? to slay the righteous with the wicked , that be far from thee ; he takes advantage from the nature of god , to plead for the actions suitable to it ; god is the judg of all the world , and judges are to do right , now sayes he , far be it from the judge of all the world to put good and bad into the same common calamity , and to reward good with evil ; that 's , o lord , contrary to thy nature as just , to thy prerogative as a judge , the judge ; to thy eminency of all the world , to that interest in thy justice which all men thy creatures , and the good especially , expect , to have right done ; that be far from thee not to do . so ioseph when he considered potipher's confidence in him , and the reservation of his wife to his own fruitions , yea the contradiction that was between a servant and a paramour , and the ingratitude that his acceptance of the invitation to his mistresse's imbrace implyed to god and potiphar , reasons thus , how can i do this wickednesse , so nehemiah rescued himself from subtile inactivity , when god's cause was so concern'd , by this shall such a man as i fly . indeed all the great actions of heroiquenesse that men do , are ( next the grace of god ) upon the instigations of the congruity to do , or to forbear , which actions have with our conditions , professions , obligations , and such like circumstances ; because kings runn'd not at the olympique games , alexander would not ; because pompey saw his affairs lost without his presence , he contemned the danger of his attempt with this , necesse est ut eam non ut vivam . because iulius caesar had the resolutions to be the phoenix of his age , he overlook'd the dread of resolute senatours , eying him as their supplanter and vowing his death ; and hence became he their sacrifice , who , had he observed his praecautions , had evaded them ; what shall i say ? seneca makes this an argument beyond most , when he advises to debate with a mans own heart , when proclive to sin , major sum , & ad majora genitus , quàm ut mancipium sim carnis meae ; which had victorinus the fifth of the thirty tyrants done , he would not have left that one record to his blemish that he has : iulius aterianus sets him forth as the deputy in france after posthumus , and second to none in the office : not to trajan in virtue , not to antonine in clemency , not to nerva in gravity , not to vespasian in ordering his treasury , not to pertinax , or severus in martialling his military course of life ; but all the glory , and same of these virtues , his libidinous desire and use of women defam'd ; so that no historian durst applaud his virtues , so stained by his vices . and therefore no wonder though our chancelour brings in this ( fili regis ) to back his absit ; so did the mother of king lemuel do to him : it is not for kings o lemuel , it is not for kings to drink wine , nor for princes strong drink , least they drink and forget the law , and pervert the iudgement of any of the afflicted . especially when this to do , is an inimiceris ; for to be ignorant of the law is not to love it , and not to love the law the rule of justice , is to affect injustice , and to resolve irregularity , and that is to proclaim an enmity against the law , and against such a law as is the law of your own country , to which your father and his progenitors swore observation , in the presence of the great god of heaven , and the great men of your nation . this is the force of the text , absit à te , fili regis , ut inimiceris legibus regni tui , why ? 't is inimicari tibi , & tuis , 't is to proclaim thy self not a royal minded prince , who art a father to thy people , but a severe lord , who wilt rule them by will , and rule over them by power : 't is to decline the oath in the coronation , which wise king iames said , is the clearest civil and fundamental law , whereby the king's office is properly defined , yea and the office of a father , which by the law of nature ( as well as policy ) the king becomes to all his leiges at his coronation : 't is spernere justitiam , to think justice too trite a path to walk in , though it be the path of peace and subtilty , for certainly a king that governs not by his law , can neither be countable to god for his administration , nor have a happy and established raign : and a good king will not onely delight to rule his subjects by the law , but even will conform himself in his own actions thereunto , always keeping that ground , that the health of the common-wealth be his chief law. so wrote a king that knew how to rule , and to value the law too , learned king iames. praedicta sapientiae lectio te erudiat . this refers not to the vulgar saying immediately before , art hath no enemy but ignorance ; but to the passage out of the second psalm , mentioned in the fourth chapter , be wise , o ye kings , and be instructed , ye iudges of the earth , kiss the son , lest he be angry , and ye perish from the way . which being the counsel of the holy ghost , and penned by his amanuensis , and that to the intent of pressing justice on them ( upon account of propitiating the chief justice of quick and dead , the son of god christ iesus ) may well be called electio sapientiae , and justly termed illos erudire ; for if any prudence be by man in this militant state expressed , 't is this , of laying up a good foundation , of labouring for the meat that perisheth not , of confirming him our friend , who is commissionated by god with all power in heaven and earth . and if any method be more indubitate and exquisite to this end then other , 't is that which justice , known , beloved , and practised , directs us how , when , and where to use , this virtue therefore as the rapsody and accumulation of all excellency . our chancellour does evertouch upon , as that which is subjectum regalis curae , and without which the foundations of the earth will be out of order . iterum igitur , atque iterum , princeps inclytissime , te adjuro , ut leges regni patris cui successurus , addiscas . the consequence of justice , as our chancellour has largely explicated in the fourth chapter , so does he here re-intimate , by his earnest and vehement conjuration , seising upon all that is tender and noble in him , to love and embrace justice , treasured up in the laws of england . and first he bespeaks him to do this , as what best becomes him , as he is princeps inclytissimus ; the first head on a subjects shoulders ; the second in the kingdom , because the heir , but one degree , as was supposed , on this side the throne ; and then he is as inclytissimus , one that was for endowment of mind as conspicuous , as for external accomplishment acclamated ; for so inclytus ( of which inclytissimus is the superlative ) signifies in its bare positive notion , inclytus , insignis , gloriosus , veluti fulgore quodam samae resplendens . hence every thing of remarkable and signal eminency , is expressed by this word . livy writing of the justice of the elder romane times , expresses it thus , inclyta justitia , religióque eâ tempestate numa pompilii erat , and plautus his inclytus apud mulieres virgil ' s armis inclytus & gloria inclyta famae ; and maenia inclyta bello . these , and such like expressions , in florid authours , argue our chancellour here , using the word in the highest notion of it , to intend the heighth of prevalence with the prince , whom thus highly he prefers . and then the chancellour's edge to propend the prince to the law , as the rule of justice expresses it self by such rhetorical charms as are not to be avoided , iterum atque iterum te adjuro , a form of comprecation , which emphatizes it self in the reduplication , iterum atque iterum te adjuro , a form of comprecation , which emphatizes it self in the reduplication , iterum atque iterum , a flower transplanted from maro's garden , iterumque iterumque monebo , iterum atque iterum fragor intonat ingens , iterum & saepius in tully , iterum as sapius in pliny , lib. . c. . and then to adjure him thus multiplyed that's more then usual , for it has not the sense of intreaty onely , but of obligation by oath , so swear by all that 's obliging and sacred : so terence , per omnes tibi adjuro deos nunquam eam me deserturum : so tully , adjurásque idte invito me non esse facturum . this adjuro the exorcists in act. xix . . used to the evil spirit , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , say they to the evil spirit , which lorinus says , was a constant adjuration of the devil by certain words , in the elder ages fewer , after consisting of more , s the devil grew more impudent , and adhesive to his possession . now , though in some authours , orators , and others , adjuro signifies no more then juro ; yet in the scripture and ecclesiastical use , it implyes obtestationem ac reverentiam divini numinis , reique cujuspiam sacrae , and is not used onely by good men , to perswade to do , or not to do ; but also by unclean spirits , to set their delusion more firm on them that heat it . thus the evil spirit that came out of the man , mark . . uses the word , i adjure thee by god , that thou torment me not . for as the apostles , and primitive worthies , did cast out evil spirits by miraculous power indulged them for the churches honour , and religions prevalence , against the heathen superstition ; so has the devil in the world , prophani circulatores & agrytae , such as the seven sons of sceva were , to delude them by into the blindness of errour , and under the power of satan to hold them : which tye he possessed the world to be so sacred , that vengeance attended the violation of it , which made orpheus of old mention 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i adjure thee by heaven , as somewhat sacramental in its intendment . add to this , vt leges regni patris tui addiscas , and then there is as much of swasion , as wit and love can allure by . for what can bear rule more with a son then the president practice approbation of his father , and since henry the sixth had the laws of england for his guide , and appreciated the knowledge of them , as the means to value and love justice commended by them , what can be more probable to prevail with his son to love and allow them , then the consideration of his fathers doing , which when he follows and improves , he does what addiscas imports , and what the text thereby presents him ; for addiscere is addere ad quae didiceris ; and so tully writes it , quid quòd etiam addiscunt aliquid , ut solonem in versibus gloriantem vidimus , quise quotidiè addiscentem senem fieri dicit . nè dum ut inconvenientias has tu evites , sed quia meus humana qua naturaliter bonum appetit , & nihil potest appetere nisi sub ratione boni , mox ut per dictrinam bonum apprehendere gandet , & illud amat , ac quanto deinceps illud plus recordatur tanto amplius delectatur in eodem . this clause has indeed the marrow of all perswasion in it ; for it not onely acquaints the prince with what is fit for him to learn from the law concerning justice , as it is therein prescribed ; but it presents him with solid reasons , why in love to himself , and in reason resulting from it , the law ( ars aequi & boni ) ought to be known , and delighted in by him . and these reasons are privative , and positive . there are inconveniencies , that a prince by knowledge of the law shall avoid , and there are advantages to be acquired ; for by knowledge love is gained , and by love delight in , and joy at the prevalence of the law over injury and disorder . this is the sum of this clause . and indeed what can be prescribed to a prince's accomplishment , which this method leads not to : for as to attain conveniencies , is to possess ones self of virtue ; so to avoid inconveniencies , is to shun all the diversions from it , and from the comfort of its enjoyment . as then convenientia is an oratour's word for fitness and aptitude of any thing to our purpose , and that in a measure of proportion between extreams , as wholesome and nutritive diet is called convenient food by agur , and a house suitable to ones degree and family , a convenient house , and a fortune proportionable to a man's charge and breeding , a convenient fortune , and a wind to fill out the sails , yet not endanger the mast , a convenient wind ; so is inconvenientia the opposite thereto , betokening exaberance , and somewhat uncomely redundant : which flaw in the chrystal , or rather adamant of princes , much abates them . for as in architecture , the essential beauties of building are delight , firmness , convenience ; so in the formation of princes minds , and in the building of them up to their after glory , no delight in , no firmness of their esteem , except there be a proportionation of their loves and natures to the nation they preside over . the best help to which is , the knowledge of laws , for they rightly understood and conformed to , take away wholly , or at least lessen inconveniencies in government ; so that the rule of law , quod est inconveniens aut contra rationem non est permissum in lege , reduces inconveniencies of disproportion to the law , as the first-born of reason , the king is caput regui & legum ; for an inconvenience it would be , that the head should be thought incapable to direct , judge , and order , what is to be done , both regally and judicially . the king is , though a child , plevae aetatis ; it would be inconvenient that his council should not supply his corporal inabilities , during his personal nonage . the king can do no wrong , because he judges in curia , by judges , and not in camera by his will , and it would be inconvenient , it otherwise should be . these , and such like inconveniencies , being publico malo , and injurious to the compleat and indefectuous being of majesty , the law supplies , by directing how they shall either not wholly be , or be wholly compensated for . thus as men stop up an inconvenient light , and fill an inconvenient pond , and repair an inconvenient way , and improve an inconvenient house , and change an inconvenient air , and avoid inconvenient company and diet ; so does a wise prince by the law judge of what is inconvenient in government , and either wholly abrogate , or mutilate and new form it to an improvement ; and hereby does he avoid the inconveniencies of either real vilipendency , ( for in that he discerns by the law evil from good , he vindicates his knowledge of , and affection to the means of such his judiciousness ) or reputed negligence , which being so great a fear to him , will best be disowned by his acceptation of the laws for his rule to govern by . for he that governs men rationally by laws , and justly by the laws of their own government ; doth not onely intra se vivere & addiscendo leges sapere , but appeals to god for protection and success in his government , and cannot easily fall into the paroxisms and distempers , which extrajudicial courses occasion , and in which princes and people are unhappy . for a sure rule it is , vim facit qui patitur , princes that either abate their subjects of their rights , or suffer themselves to be abated ( by their subjects ) of their royal rights , are accessary to the inconveniencies that follow them , and by so much the less know they the law , as they permit the invasion and breach of it , either in themselves , or others . the chancellour then that counsels , quomodo tu● evites has inconvenientias , is well to be listened to ; for as the counsel is grave in the conception and mind of the giver , so is it generous wise and affectionate in its tendency and scope , which is gravem & securum reddere principem , dum modum rectè evitandi inconvenientias , & realis & suppositiae ignorantis legis addiscit . for since the mind of man will be busie in some disquisitive activity , and natural desires are to nothing but what is either really and in very deed good , or else semblably , and in appearance such , which is the reason , the schools say , finis & bonum convertuntur , the chancellour does wisely and worthily , to bespeak the prince's youth to adhere to the law , as his choice and pleasure , and to expect no good as a man , and a king , but such as that informs him of , prepares him for , and onely will render useful to him ; as antoninus pius found it , who by the historian is charactred to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. an honest upright private man , but signally , and to a greater degree , honest and upright , when made publique . for no sooner was he in the throne ; but he grew the admiration of all ; terrible he was to none , bountiful to all ; moderate in using power , a preser●er of just men to rule under him . learning then in the law must not onely enter the prince in the love , but confirm and establish him in such love , to a delight in , and a resolution of prelating the law above all . for else , as in a calm , the ship moves not though all the sails be out ; and in the midst of dainties , there is yet want where there is no stomach ; so in the love of the law , there will be but remissness , if knowledge and valuation of its use , enhance not its appreciation , valuation is the daughter of discovery and science , and so far do we esteem , as we understand : therefore all the ports of science are to be set open , that love and delight may enter at them ; yea , and daily increase , as the knowledge of them increaseth . for so it follows in the words . quo doceris quod si leges praedictas quas jam ignoras ; intellexeris per doctrinam , cum optimae illa sint , amabis eas , & quanto plus easdem mente pertractaveris , delectabiliùs tu frueris . this the chancellour subjoyns by way of application , for having reasoned before with him , that knowledge causes love , and love desires to enjoy , and enjoyment fixeth delight , and crowns it with a non ultra of felicity , he deduces this from it , that the laws of england being the measure and mistris of her governours happiness , not to know them , is not to know how and whereby to be happy : and therefore he advises him once and again , not onely to content himself onely to know there is a law , and to appoint men of learning to judge in courts of law according to the law , and to see that right be done to all , as well poor as rich , and to punish them that do contrary ; though this , i say , be a rare princely virtue : yet is not this the very specifique virtue , he perswades the prince hereto ; which is intelligere leges per doctrinam , that is , to dig for the wisdome of them , as for hidden treasure : to knock early , often , and loud at wisdoms gate ; to gain by search , and sweat , the language , terms , books , sense , and reason of the laws , and in search after this to be exact and studious ; not to follow pompey who in his wars was effeminate , in castris pompeii videre licuit triclinia strata , magnum argenti pondus expositum , recentibus cespitibus tabernacula constrata , as ammianus marcellinus reports : that is , not to think an hour or two enough for study , and then perhaps when the minde is overcharged with other thoughts : but to follow that course in study , which iulian did in the wars , stans interdum more militiae cibum brevem , vilémque sumere visebatur ; according to the lawes of learning to keep close to the book , and to admit no interruption , till somewhat toward the helm of art be gained , this once obtained , and the lawes and our reasons kindely cohabiting our minds , then they will be loved as good , materially formally finally good , since all their precepts are ordinated to the bonum suprà , intrà , infrà , circà , to god , man , our selves , and all the things that relate to them . nam omne , quod amatur , trahit amatorem suum in naturam ejus ; unde ùt dicit philosophus , usus altera fit natura . these words give the reason of the former from the mouth of nature by the hand of her secretary aristotle , whose position is , that love is of a transforming quality , makeing the lover become so much what it loves , that he rather lives where he loves , then where he lives ; which is the reason , that of all the effects of love that 's mentioned by solomon , he is the most conclusive of this , love is stronger then death ; not onely because it survives and evicts death , having aboad in heaven where death is not , but chiefly because death can but part the bodyes , which by union of soules were combin'd in a fierce and firm resolvednesse of willing , nilling , joying , fearing , delighting , abhorring , chusing , refusing , imbracing , avoiding ; but it cannot by its terrour cause those latent similarities to be inexpressive or neglectfull of keeping an unisone in touch and time : for while they continue a capacity to love , they will expresse the fervour and constancy of the resolution they have to each other , and the reason is , because love is a perfect surprize and conquest which rests not in a bare sympathy , but passes from those inchoat novicisms to the non ultrà of con-naturality ; nor is it hard for any man or woman to be brought of to be of the same judgement , dyet , delight with those they love ; for in the assimilation each to other is the continuation maintained , and the degrees of love sublimated : there was no key to sampson's strength till the dallying with dalilah delivered it to her , and taught her how to ruine him , who , but for that lubricity , had not been to be dealt with by philistins ; nor could david's warmth so have afflicted his own soul , and blasphemed his god , ( as in the case of vriah slain and bathsheba enjoyed ) it did , but that his love was the sole provocation to that action of infamy . no wonder then the philosopher attributes so much to use , as to call it as another nature ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ) and quotes evenus his verses to confirm it . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. what many years men are accustom'd to , as second nature they delight to do . this is the reason that authours assign such potency to use and custome , as amounts to a second nature , not lesse effectual in her influences and ducts , then the first ; tully tells us of vetustatis & consuetudinis vis maxima ; tacitus makes in consuetudinem vertere , to be all one with in naturam . xiphilinus reports that commod●es was what he was , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , first , by ignorance of what was good , then by ill customes , he at last arrived at sordid and effeminate manners flowing from a contaminated and debauched nature . quintilian , dorsquius , a gellius , make all parts of grammer and learning , even to orthography , to be ruled by use ; and marsilius ficinus on plotinus makes good the force of use and custom as another nature ; yea terence when he expresses a mans application to a woman that pleases him , and from whom he can as soon die as part , calls it , consuescere cum aliqua . the consideration of which should turn men to right usages and customs , if they would preserve themselves virtuous , for if nature be by them altered and the course and current of it diverted , there ought to be great care that we habituate no evil to us , consuetudo peccandi tollit sensum peccati , and this amongst others i conceive to be one reason , why solomon advises to teach a child in the trade of his youth , virtue , that when he is old , he may not depart from it ; but of this saint ierome in his epistle to demetriades writes at large , and cornelius a lapide on ecclus. xxx . . and heresbachius de educ . principum liberis . sic ramusculus pyristipiti pomi insertus , post quàm coaluerit , trahit in naturam pyri , ut ambo deinceps meritò pyrus appellentur , fructúsque producent pyri , sic & usitatae virtus habitum generat , ut utens eâ deinde à virtute illa denominetur , quo modestiâ praeditus , usu modestus nominatur , continentiâ continens , & sapientiâ sapiens . here the text-master instances the force of custome and conjunction from that , which is somewhat equivalent to it in vegetables , and has analogie in that kinde with the effects of virtues and vices on the minde ; for though it be true , that no general rule is exempt from an exception , and no second cause is so absolute but may be overruled by its first cause , yet is it also ordinarily true , that god leaves nature to her work , and impedes her not but upon high concerns , and in notable cases : indeed there are instances that god , contrary to all humane probability , has brought men and things into esteem and renowne which have been unlikely so to be . valerius maximus brings in tarquinius priscus in the head of these , a man born at corinth , and damaratus a hogherd his father , and a bastard to boot , yet for all this miraculously brought to rome , and that with such multiform advantages to his greatnesse , that in short time , he grew the love , dread , and soveraign of all degrees , and the historian gives us such a record of his bravery , as eternally monuments him for a mirrour of men , dilatavit fines romani imperii , &c. he enlarged the romane empire by brave conquests , he honoured the solemnities of religion with additional graces to them , he made the senate and orders of knighthood more ample and capacious for great merits ; and besides these the great virtue in him , was , that he so demeaned himself in his charge , that the city of rome had no cause to repent she chose a stranger for her emperour , and passed by her own sons . the like doth egnatius report of the emperour iustine , a thracian born ; and so of mahomet : basilius , tullus hostilius , phocion , iphicrates , viriatus , narses , iacobus paresotus , mutius the founder of the s-forzan family , and sundry others meanly bred and born , who yet have come to great fortunes , and brought about mighty designs to the amazement of men , that beheld or read them . these things , i say , have been and yet are at the pleasure of god further to permit , but this extraordinary course is not god's frequent method of his manifestation to men ; his usual direction to attainments are by industry and assuescency of ones self to labours of the minde and body , and by that he gives men the successe of facility and pleasure in that , which before they were habituated to , was difficult and displeasing ; that as in vegetables , fruits generically the same , are reconciled in their specifique difference by inserting them into one anothers stock , the cyons of a pare or apple being grasted on the stock each of other , and plumbs inoculated into each other will produce the fruit of the stock and kinde , into which they are let : so in the minde of men , there is a real transformation suitable to the nature of the company men consort with , and the objects they fix their delight upon ; for use begets an habit , and habits delight in suitable activity , and such as the soul and minde of man is , such will be his delight either in good or evil , so true is that of seneca , naturâ duce utendum est , hane ratio observat , hanc consulit , idem est ergo beatè vivere & secundum naturam , and surely where virtue is in the soul , in quocunque habitu est , prodest , as he notably . for it is the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of virtue habituated to , and radicated in man , that transforms him ; naturally he is void of all good , and sets himself in a resolved hostility against whatever is divine , and may dissociate him and his rude praepossessions by vice and enmity to virtue : but when god touches the natural conscience , and causes the beauty of virtue to irradiate , when there is one beam of discovery let into the understanding , of a more excellent way then it has found , this causes it so to augment and dilate itself in desires and endeavours , that at last it brings in the perfect discovery of virtue , and releases men from their bondage to sins service , so that they once being accustomed to be continent , just , modest , patient , liberal , magnanimous , cannot tell how to be other , nay wonder at themselves for bruits and not men , when they were in their pristine barbarity , this was that made seneca professe with truth , nihil cogor , nihil patior invitus , i do not serve god being compelled , and obey him because i must , but i am willing to be what he would have me because i ought ; i know nothing is casual but certain , as to him who has laid out every occurrent of my life , so that whatever falls out is but the very effect of his disposition . o this habituation of the soul to virtue is the felicity and upshot of all acquirements , 't is the viaticum , that supports the journey of life , and serves us with all necessaries to our conclusion . porphyry made it peculiar to wise men to enjoy , for while he allowed all men to dy the way of all flesh , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by a departure of their bodies from their soules , yet he restrains the departure of the soul from the body onely to philosophers , supposing them onely to live chiefly in the joy of those abstracted virtues , which they contemplated in order to practice : this st. paul meant more metaphysically then any philosopher could understand or act it , i live , not i , but christ that liveth in me : i bring down my body , i account all things losse in comparison of christ : how so , holy paul ? the love of christ constrained him to deny himself for him , who had called him from a persecutor to become an apostle . thus prevalent was the habituation of sanctity to st. paul , that he could deny himself in all his complacencies , and in all his transcendencies , so he might fulfil the will of his master , whose vassal he was , and from whom he had command so to do ; yea , and no further is the philosophy of this world rational , and religiously moral , then it fixes us in this resolution of training up our minds to virtue , and choosing apt helps to advance it in us , good rules , good company , good discourse , good pleasures , that by all these , we our selves may be good . for true is that which apollonius tyanaeus spake of to the emperour vespasian , my companions , said he , in philosophy , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , keep their heads cool , and undizie , that they may see clearly what they ought to do in the course of steddy virtue ; nor are they ambitious to know what is not fit for them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. they hourly , and every minute consider with themselves , what is their duty to do , and intent , they are upon it , early and late . this , this is the way , to be every way what god and nature requires , to keep our selves up to the precise rules of virtue and to be habitually and dispositively good , is not onely the path of being , but also of doing good : by this the elders obtained a good report ; and through this , difficulties have been rendred facile , and impossibilities compossible . what makes the nightingale out-note her fellow choristers , in the suavity and perfection of her modulation , but her continual singing fifteen days , and fifteen nights without intermission , till she has made her notes natural to her ? what makes the sun to shine , and all things in their elements to move with vigour and indesession ; but that position of natures to such perfect actions in those spheres ? and what makes martyrs constancy not onely to lye hid in a well six whole years without seeing light , as athanasius did , but even to dye all sorts of cruel death , and that with joy and exultation ? but this contemplation of dying daily , this mortifying of their earthly members , glorying in the cross , endeavouring to have the same mind in them that was in christ jesus . the habituation of themselves to those virtues of self-denial and humility , made them not onely prepared for , but proficients in , all excellent virtues . for knowing the nature and use of them , they delighted in , and at last were partakers of the plenitude of them . thus david made the law of god his delight , by meditating in it day and night . and thus the law of god made david the delight of god and man , while it made him in wisdom to excel all his teachers , and in integrity to be a man after god's own heart , and to fulfil all his will. quare & tu princeps , post quam justitia delectabiliter functus faeris , habitúmque legis indutus fueris , meritò denominaberis justus , cujus gratia tibi dicetur , dilexisti justitiam quo & odisti iniquitatem , propterea unxit te dominus deus tuus oleo latitiae prae consortibus tuis regibus terrae . the former clause was but illustrative of the force of use and custome ; this is applicative to the prince , in the habituation of whose mind to justice , as the law propounds pounds it , there will be a suitable effect : for since all laws that are just , being extracts out of the law of god in nature , and the positive enlargement of it as emergencies required them , are to all respective countreys , and the men in them , the measures of just and unjust ; and the law of england is such to the king and people respectively therein , his humble address to the prince is , that the law he would study , and by considering of , so delight in it , that his principles being law and justice , his practice may be also such , and so he not erre in judgment , nor cause the people to wander out of the way by his ill example , or complain of hard usage under his government , when god should reduce him to it . this is the scope of the chancellour , which he wisely prosecutes , by not onely commending the law as a study of delightful knowledge , the magazine of justice , but as that which is attainable to some kind of intellectual plenitude , i mean to such a proportion as is necessary for him : so that from knowledge of , he shall proceed to love , delight , and take a complacentiality in the law , as the scheme of justice , that his mind ought to be conformed to , and thence his actions . and this once had , he concludes him not parasitically , but meritoriously just , and applyes to him that of the psalm xlv . . thou hast loved righteousness , and hated iniquity ; therefore god , even thine own god , hath anointed thee with the oyl of gladness above thy fellows . which the authour of the hebrews , chap. i. . applyes to christ , the king of righteousness , whom he makes super-eminently endowed with , and superlatively honoured for it , thou hast loved righteousness ; not greatness , not victory , not riches , but righteousness , that 's the darling of thy soul , that 's the secret of thy government . thou hast not onely said to kings , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as much as laws are not to be violated , because they are the exemplars of iustice , the glory of crowns ; and injustice in the soul of a prince , is the riot of sensuality against reason , and a warp of the less noble faculties from the law of their conjunction with , and subserviency to the more noble : but thou hast ( o lord jesus ) to thine eternal honour and admiration , loved righteousness as thy choice , thy self , bonum tuum quiae bonum te ; oh! but how does that appear ● the next words confirms it , ●disti iniquitatem , as thou lovest justice , so thou hatest whatever is contrary to , and inconsistent with it . thou hatest thy scepter which is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , should be other then of pure gold , and endure the touch of all tongues , thine enemies being judges ; thou wilt not by that oppress the weak , nor bruise the broken , but bind them up , because thy scepter is like thy kingdom , which represents all righteousness , having no fellowship with iniquity . here , o holy soul , thine eyes may see the king of saints in his beauty , far greater then solomon in all his royalty , loving iustice , and hating iniquity , as never man or king did , or could do before , or ever can , or shall do after him . now also consider the compensation that the father is mentioned to give the son for this his love to righteousness ; that follows , wherefore god , even thy god , hath anointed thee ; because thou art so qualified to rule as a king , god has called thee to kinglyness by unction ; as he has given thee a name above every name , so has he preferr'd thee in thy unction above all unctions of men . their unctions make their heads and hearts often ake with care , because their affairs are sometimes disasterous , and at best troublesome : their crowns gird their brows , and make them bend them for pain ; but god hath anointed thee , o blessed iesus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , with such oyl , as chears and incandorates thy face , ( for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifies the same with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , oblectumentum , ornamentum , honestamentum . ) god has put such sovereign oyl into the springs of thy rule , that thy scepter easily turns thy subjects to thee ; thy people are a willing people in this day of thy power , and they call unto thee to draw them , and promise to run after thee gladly and constantly , and all this above thy fellows ; no angels in heaven , no kings on earth , are so anointed as the king of the church was : for whereas their unction is but the work of art , christ's unction was the work and spirit of god whereas theirs was but poured out in measure , christ's was an effluxion of divine virtue without measure , whereas theirs was but temporary , as their kingdoms are : christ's was eternal and perpetual , as his kinglyness is ; whereas theirs was but to signifie their separation and sanctification to the rule of their subjects onely , and those onely during their lives , christ's was emblematical of his indeterminable and capacious power , which was to extend to all persons , and to indure beyond all time ; and therefore well expressed , prae consortibus tuis , regibus terrae ; quippe qui etiam habuit potestatem , &c. for christ the king of the church had the prerogative above all kings , to forgive all sins on earth , and to have an everlasting kingdom , as he had deserved , so to have his glory be by his purchase of it with his body on the cross , which was an expiatory sacrifice for the sins of the world , as manster and clarius both on the text. this scripture thus applyed to christ , our chancellour brings in here to his aid , the better to prevail upon the prince to love the laws , that declare the measure and proportion of english justice : for as the end of laws is to determine right and wrong , ( and the common-laws of england were composed and methodized so to do out of the farrago of laws that of old were here amongst us , and which brompton says , were nimis partiales ; and therefore by saint edward the confessour meliorated , and by all princes added to , explained , or substracted from , as their wisdom in counsel saw fit : ) so is the exactest and unerringst method of justice to be learned by prince and people from these laws ; which they that addict themselves to know , will love , and in loving be just and happy in life and death . and so our grave master , and after him , i conclude the fifth chapter . chap. vi. nonne tune princeps serenissime , haec te satis concitant ad legis rudimentae , cum per eam , justitiam induere valeas quâ & appellaberis justus , ignorantiae quoque legis evitare poteris ignominiam , ac per legem faelicitate fruens , beatus esse poteris in hac vita , & demum filiali timore imbutus , qui dei sapientia est , charitatem quae amor in deum est , imperturbatus consequeris , quâ deo adherens per apostoli sententiam fie s'unus spiritus cum eo . hic epilogat cancellarius totius persuasionis suae effectus , saith the editor of my text in hen. the . time on this chapter : and not amiss , for having prediscoursed of the excellency of justice , and the consequentiality of its being , and being beloved in a king , who is to distribute it according to the law of his government , which law known , will be delighted in , and conformed to by him : he now comes to annex , by way of motive and assurance , the felicities that do flow in upon just princes , and do distinguish them from others , both in life and death . and this he doth ; first , by telling him , that righteousness and justice is so peculiarly the garment of kings , that they must wrap up their whole man in it , as garments cover all the body , and the robes of princes are long from top to toe , significative of their plenary power and augustness . in which sense , god is said to put on righteousness as a garment , and the saints are said to be cloathed in the garment of their elder brother , and that to render them beloved . so the chancellour intimates to the prince , that by knowledge of , and love to the law , he shall be so invested with , and habituated to justice , that it shall be his nature , and as impossible for him not to be just , as not to be in warmth motion and sense while living . secondly , he presents him with another benefit , ignorantiae legis evitare poteris ignominiam , and that 's no small one : for as ignorance is the botch and deformity of humane nature , ( which god has endowed with a reasonable soul , divinae particula aurae , and made capable by the vastness of its intellect , to understand and judge of all things : ) so is ignorance of the law in a prince , so great a deformity , as no corporal one comes near in the despicableness of it . for as he will make but an ill oration , that knows not the rules of speaking , and he but a pitiful sea-man , that skils not the use of the compass , and he a rash souldier , that considers not of the advantages and disadvantages , which he is to provide for in fighting ; and he an ill counsellour , who has never read the rules of policy , nor seen the effects of them in practice , so will he prove himself but a sost and despicable prince , who knows little or nothing at all of the law , according to which he is sworn to govern . for as all other mens eating , sleeping , fruitions , are inbeneficial to him , if he have not health to enjoy them himself ; so is the knowledge of all other things incontributive to his real quiet and effulgency ; if in the law , which is anima regiminis , he be unversed , and letterless , frustra foris strenuè si domi malè vivitur . . as knowledge of the law will avoid the shame of ignorating it , so will it accrew a complication of positive goods , contributive to the comfort of life and acquirement of same after death , per legem felicitate fruens beatus esse poter is in hac vitâ , that is , the conscience of just governing his people , according to his oath and his laws , which are their birth-right , will give him such a calm and stability on his subjects love , and such an humble confidence in god's mercy and protection , that he shall not fear the evil day that it should come on him ; or if it do , he shall be assured to overcome it by magnanimity , and innocent hectorism . and whereas guilt makes kings succumbere , ashamed and unbold to assert themselves , the justice of a royal soul , notably evidenced in a just reign , shall make him that has it , more then a conquerour in life , and nothing less then a martyr at death ; yea , it shall go near , ( though not come home to the pitch of merit , for that 's no proper phrase in reformed oratory and doctrine . ) to deserve a canonization , by the favour of him that accepts and rewards all admirable actions flowing from virtuous principles ; yea , inasmuch as such a procedure in beneficence , must argue an intern fear of god , and a wisdom effected by it in the soul of the practicer ; who therefore is such to men , his equals in nature , and his inferiours in polity and order , because charity commands him so to be , and the love of god towards him in his prelation above others , and in him , provoking him to crown worth in all he sees it in , and to proportion his favours according to the justice of his divine office . i say these effects of justice , resulting from the knowledge and practice of the law , will so exhilerate and quicken the spirits of a prince , that he will not onely be calm within , and not incumbred with the terrours of the almighty , but be abundantly beloved by his subjects , live in peace and plenty , dye renowned and lamented , i king. iii. last v. all israel heard of the iudgment which the king had judged , and they feared the king , for they saw that the wisdom of god was in him to do judgment . yea , and be made as the chancellour reports , from the apostle saint paul , be made one spirit with him , that is , not onely submit to god , and follow him in all his directions and prescripts of virtue , as a good child does , who makes his fathers will his law ; nemo enim deo conjungi ullo modo potest , in cujus voluntate situm non sit , vel illius d●sciplinam , & imperium sequi , vel ingratè repudiare , cum autem beata , tota sit in divina conjunctione posita vita sequitur , ut astrictâ voluntate , nemo possit vitam beatam adipisci , but also as a fruit and consectary of that conjunctness , have a fameness of glory in heaven , as they had a sameness of soveraignty here , always understanding the sameness secundum mensuram hominis , though secundum veritatem dei , as true a conjunction with god in glory , as they had here in power , a reward commensurate to their actions rightly and religiously performed , sic autem fit ut justis hominibus regnum illud immortale , non solùm , ut merces , & praemium ; sed etiam , ut legitimum patrimonium patris sapientia , & benignitate fondatum , optimo jure debeatur : si enim aequitatis ratio postulat , ut servis operâ suâ egregiè functis , merces domini benignitati consentanea persolvatur , si leges amicitiae praescribunt , us omnia bona sint amicis communia , si jure statutum est , ut filii legitimi in paternorum bonorum possessione collocentur , non obscurum est juris aeterni rationem flagitare , ut summus ille omnium dominus qui bonorum amicus , & pater est , vel servis diligentibus , vel amicis fidelibus , vel filiis charissimis sempiternae gloriae fructum largiatur , saith orosius . sed quia lex sine gratia ista operari nequit , tibi illam super omnia explorare necesse est , legisquoque divinae , & sacrarum scripturaram indagare scientiam , this is judiciously inserted here to abate too much recumbence on the law , and too high admiration of justice , as she is proposed by it , for as the beauty of the sun overdoted on , proved an argument to the eastern world to adore it , and as the learning of nature besotted philosophers unreasonably to expend themselves about it , till they despised the wisdom of god and undervalued it , the power of god to salvation , beneath their delirancies and enthusiastique conceits , so is justice though beloved of god , and that which he commends to man as his duty and glory , apt to be mistaken as the onely acquirement of study , and the lesson of the law alone , if the prince be not informed of the proper cause , from whence onely it is blessed to be what it is ; and that is god by his will in his word : indeed god permits us to own study as a means , and that by which he ordinarily begets and expatiates virtue in man : as the minde of man from what he reades or heares , has the principle of his actuation excited , so arts and study so lawes and systems of justice may be owned by him as great helps and methods to those excellent ends ; but god endures them not partakers in the glory of successe , and prevalence , which onely is his , and theirs onely by his permission , and so far as he pleases : so that though the lawes of men , and of england may be most just , and such as can teach the prince how to be just actively , and that to all the proportions of kinglynesse ; yet can it not do this ex insita vi , or ratione i●natae potentiae , but must be helped to do this by grace , the gift of god : which grace and favour thus to be adjuvated , is , to be obtained by prayer ; so solomon obtained wisdom , and so every good thing is to be obtained . and to that must be added diligent meditation of scripture , not a light , and oscitant reading , but a deep and solid rumination , not now and then , but constantly and affectively ; indagare is to seek as men do at the bottom of wells , and in blinde corners , wherein , if they look not intently , they cannot finde what they seek . god will have us call earnestly and seek passionately for his blessing on our endeavours , before he will give us our desires : were justice an easie lesson , did the law infallibly make the student of it just , there were no more to do , then to read over the law books , and consider the judgements in them , and then the whole attainment of justice were had . but because the law is but ( of it self ) a dead letter to this quickning issue , therefore god will have his fiat begg'd by prayers , and this method learned from his minde revealed ; and the knowledg of these , proves ever the readiest way to the blessing of them . the law , saith st. paul , is holy , and just , and good rom. vii . . where 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is v. . explained by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , utpotè à spirituali bono profecta , god indeed has intended the law , holy , quoad ceremonialia ; just , quoad judicialia ; good , quoad moralia ; as st. thomas observes : o but whatever it is , it proves not without god's blessing , that opens the mystery , and applyes the energy of it to the understanding and will , and thence lets a man into the pleasure , and profit of it : nor is god's blessing on endeavours obtainable but according to the enaction of his word ; therein he has taught , that prayer is the scaladoe of heaven , and that the violent in holy devotion take it by force , ascendat oratio , ut descendat miseratio ; he has invited his to call , and promised to hear and answer them , and our lord bid his disciples ask , assuring them that whatsoever they shall ask the father in his name , shall be given them : which the psalmist in his own experience confirms so to be , as promised , the lord heareth the righteous , and his ●ares are open unto his cry . as then to beg the blessing of god on studies , not onely humane , but those of scripture , is the way to obtain it ; so is study without it as unsanctified so mostly unsuccessefull , 't is to labour for things of naught , 't is to loose time on shadowes and bubbles , sapienter descendere ad infernum ; so it followes in our text , cum dicat sacra scriptura , quòd vani sunt omnes in quibus non subsit scientia dei , sapientiae . c. . this sentence is true , and collectable from texts of holy writ , but as it is a part of the book of wisdome , not written by solomon , for st. ierom sayes , liber sapientiae apud hebraeos nus quam est , verum & ipse stilus graecam magìs eloquentiam redolet ; but by philo probably , whom the learned think so to have named it , because christ the wisdom of god is therein set forth both in his advent and passion , because of which , the iewes , as the centurists tell me , wholly rejected it ; this book i say , being written by none of god's penmen , ought not , as i humby conceive , to be accounted caenon in the catholique church : though i know lorinus and generally all the romanists account it sacred , and part of the canon , praefat. in com. in lib. sapientiae c. . but our church rejects it , and so does chamier . lib. . c. de canone . the learned bishop of durham , now one of the reverend fathers of our church , has notably vindicated the canon of scripture against apochryphal intrusions , as well as unwritten legends , to him therefore , as matchlesse in that argument , i refer my reader , humbly protesting against all novelty on either extream ; for though some wholly reject , and others fondly extoll them to a kinde of rivalry with scripture , yet our churches moderation shall be my temper towards them , to allow them their place , as rules of prudence , and direction for manners ; not as foundations of faith , and this i suppose , has been ever the catholique account of them ; so st. augustine , etsi in iis invenitur aliqua veritas , tamen propter multa falsa , nulla est canonica authoritas ; and philastrius , etsi legi debent morum causâ , à perfectis , non ab omnibus legi debent , quia non intelligentes multa addiderunt , & tulerunt , quae voluerunt haeretici ; and angelom , when he gives the reason of their reception in the church , concludes yet , hi à quibusdam excipiuntur , non proptere à ut illos approbent , sed ●a quae necessaria sunt ad confirmandum , recipiant . though therefore most true it is , that all knowledge that leades us not to god , in love to , admiration of , and conformity with him , be unprofitable , and therefore vain , forasmuch as it leaves a man , short of the best good , and the onely perfection , and argues his soul unactive to the immense nature of its divinity in god's purpose of infusion ; yet is not the book out of which this is quoted sacred canon : but god having made use of the authour of that book , as a notable instancer of truth in that which the wisdom of the world often deceives great scholars by , ( as it did particularly that abel bishop of st. andrews , who upon the gate of the cathedral there wrote , haec mihi sunt tria lex , canon , philosophia , and was wittyly replyed upon , te levant absque tria , fraus , favor , vana sophia . ) there is reason there should be regard done it , next to that of canon . his igitur princeps , dum adolescens es , & animae tua velut tabula rasa , depinge eam , nè in futurum , ipsa figuris minoris frugi delectabilius depingatur . here the grave knight improves the maxime of philosophers , intùs existens prohibet alienum , for finding by experience the minde of man taken up with action , and youth the warmest , and most vicious part of life , ( being the time from fifteen to twenty five , ) carrying the man to good or evil with impetuosity , he bespeaks the prince to anticipate vice by prepossession of his soul with virtue ; and that he may the more successefully rivet on , and drive home his swasion ; he not onely considers the soul as the mint , and formatory of all things , which have their rise in youth , and their ripenesse in age ; the soul of man in its actions on the body being like the seasons of the year , loaden with sap in the spring , and blowings and leaves after , and then with knitting and increase in the youth and mid-summer of it , and then withering , and returning to its first principle as the sap doth : but as a virgin-table on which there is a space to write what a man will , and hence as one that is yet a novice in vice , and has a minde like the galaxy pure and und●b●uched , he commends to him the fair arras and imagery of virtue to adorn himself with , and prayes him if he would be one of justice his triarii , sub vexillis innocentiae subsidere , to keep himself unarmed , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that he may come to the succour of justice , when things are desperate and hope of recovering almost ceases ; for as in wars and combats the bravest hectors are those that are so bred up from their youth , because to them courage in , and contempt of danger is a second nature , and no need there is of terrifying them by such a law as the megaritans had , who decreed , to fight disorderly or fly cowardly , should bedeath ; their resolution being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . &c , not to fly any disadvantage of an enemy in battel , but either dye or overcome : so are they the most just men , whose youth is accustomed to justice , and who inure themselves to love lawes , and orderly courses even from their cradles : this was solomon's reason in his counsel , train up a child in the trade of his youth , and he will not depart from it in his age , prov. xxii . . and the experience of the necessity , and importance hereof has so swayed with wise parents , that as they have omitted no improvements of their children , which their tenderest ages were capable of : so have they chosen the most professed masters and tutors , b●th in learning , prudence and piety , to instruct them , and accounted them their benefactors and parents , as to those fair fortunes of fame and usefullnesse , which those educations have fitted them for , and admitted them unto in after-times . for though natural ingenie give men great helpes to excellency in what ever they undertake , yet the main is god's blessing upon industry and diligence , provided those be prudently directed , and that they be so , helpes of exact masters are great furtherances , nor have any men in the world proved so noble lustres to their orbes , as those that have had their youths well seasoned with all the varieties of compleat institution , as was laurentius medices , whom mirandula thus writes of , efficaci adeò vir ingenio , &c. of so ready and generally a dexterous wit was he , that he seemed equally exact in every kind of ability , and has this admirable in him , that though he were ever taken up with state affairs , yet he always either spake or meditated some learned and scientifique thing . and our edward the sixth , of whom 't is hard to write any thing to such a heighth of hyperbole , which his just deserts advanced him not to be represented by . since then it is incident to youth to be ill-principled , as he was , whom suetonius reports , luxuriam , libidinem , crudelitatem veluti juvenili errore exercuit ; and as coligui , who was heard often to say , that neither alexander nor julius caesar were superiour to himself , and the ill habits that are atcheiued then , are seldom if ever receded from , but remain as dead flies to inquinate the compositions of the most eminent virtues . it is of high concernment to inure the minde of youth to virtue and humility , to courage and justice , for this will so ballast and steer the after-ages , that nothing will disseise them but death , which is the great usurper of all mortal glories and triumphs in their determination . which premised , our chancellour does most worthyly to attack the youth of our prince with such desensatives , as may abortivate the attempts of passion and lubricity upon him ; for in that he commends not airy romances , not poëtique fictions , not parasitique drolleries , but sober reason and sacred scripture to his rumination : what doth he lesse then endeauour to make his choice in youth , an iliads to repose his fame in , and teach him to live in the glory of a matchlesse piety , far more then homer did in his poems ; which yet tully sayes were so contributive to their author , vt nisi ilias extitisset illa , idem tumulus qui corpus ejus contexerat , nomen ejus obruisset . and truely if the holy scriptures , which are the most antient record extant , far before the peleponesian war , beyond which thucydides acknowledges in the greek stories nothing is certain , and which was but about artaxerxes and nehemiah's time ; i say , if the scripture does discover to us , moses , iob , samuel , three notable instances of sober youth , and such men in their age as few exceeded , and thus probably they became by the seasoning of their youth with piety and probity . is there not much more from the authority of the book , from whence these authorities are quoted , and the nature of the instances hence made to perswade a prince of reason and religion , then from any ethnique author , or lesse credible examples : surely i think , yes , and so i believe the chancellour doubted not but to convince the prince of ; for since the word of god is a sword and a hammer to cut asunder and mall down all opposition against and interposition between it and its end and drift , the chancellour has done well to draw forth this weapon to terrifie all contradictions , that he did but fear probable ; for since nothing became a young prince more then readynesse to learn , and ductility to take learning in that method his tutors should convey it to him , it was a dexterous practice that our chancellour uses to implant virtue by , to wit , the commendation of justice from the law of god and the law of england . nè in futurum ipsa figuris minoris frugi delectabiliùs depingatur , quia etiam , ùt sapiens quidam ait , quod nova testa capit , inveterata sapit . as the former clause had argumentum ab utili , so this has an argument à damno contrarii ; if virtue be not suprerinduced , vice will be ; for natura non patitur vacuum : so his motive to virtue is not onely a decoro from the beauty , but a damno evitato ; for if he give up himself to virtue ( and abandon every evil way , and every evil consort ; then there will be no vacuity for vanity and vice to portray it self on : that , as probably of old , candidates in any arts had tables in which they wrote , or on which drew ; what they had to say or do , which when all was full , and no room left ; those that had no place therein could not be carryed up to the judges to be approved of and chosen : so from thence does he apply to the prince the simile , beseeching him so to fill up the virgin-table of his minde with virtues of all kindes to his princely compleatnesse ; that when the heat and vigour of youth importunes him to release that severity his resolution has virtuously brought him under , he may deny those insinuations admission and acceptance , conside●ing that what 's once well done , ought not to be undone : nay , there is a kind of necessity to persist in an inexorablenesse , where to change is to become worse , and to retreat the field , to lose it . for youth is the foundation of ages superstructure , and though it sometimes falls out , that dissolute youths prove stanch ages , yet mostly 't is otherwaies , since the indications of manhood are conjecturable even from youth , iulius caesar told the world what he would be man , when but a boy , animum habuit semper ingentia semper infinita expetentem , and those drowsie inactivities that many have , who do plùs quietè , quàm ag●ndo , atque movendo proficere , shew , that to place them in active lives is to make them unhappy and uselesse , so that the great secret of institution is to know the genius and delight of youth , and to give it prospect and scope that way , not to abate their courage by continual droppings of displeasure , nor to raise their insolence by intemperate praises , but so to carry a mean in all things , that they may be kept warm , and not put into a flame and feaver of distemper , for tantùm ingenii , quantùm irae , and so to be cooled as not to be chilled and mortified ; for if wisdom said , vellem in juvene aliquid amputandum , and politian foretold of peter de medices , that he was like to make a wise man , who was so forward a boy ; then there is danger in breaking the spirit of youth by frequent and imprudent discouragements . as barren grounds brings forth nothing good , so over-lusty grounds too much to be good ; extreames are the errors which mediocrity corrects : such a strength of soyl as enables production kindly and plentifully , and no more then does inable so to do , is good in ground . the like proportion of discretion is to be allowed to the tillage of youth , neither too much severity , or too great liberty , but an even hand is to be exercised here ; for hereby not onely the ingenuity will be dexterously fed , and the stomach of it kept quick and unnauseate , but the memory will also remain unbroken ; and that being the sine qua non to all learning , quintilian allowes a youth onely capable of so much ingenuity to learn , as he has memory to retain ; because it is the christal glasse , which has in it lifes , yea arts elixar , set that over too great a flame , and the glasse breaks and the elixar is lost : burthen a youths memory with immense cares and manifold studies transcending his proportion , and he is ruined by an immemorativenesse : and again , wholly disuse memory , and it will shrivel up into a narrownesse and incapacity ; the right use of memory is moderately to exercise it , for action perfits habits as food and motion increase life and all the concomitants of it ; yea and this prudence will exercise it self towards youth in a right disposing of it to delights , and a real principling of it against ill manners , and ill maxims . timotheus the musician would have a double reward from those scholars , whom he took to teach from other masters , with whom they were entred ; and his reason was , because he had a double labour with them , dedocendi , docendi , unlea●ning them what they had been ill taught , and then teaching them what was better : and true it is , that he that will be a good tutor to youth , must imitate both the plastique artist and the carver , add and substract as he sees occasion , as they do ; which made michael angelo to say , sculpture was nothlng else but a purgation of superfluities , which being better done abroad then at home , the cockerings of parents fostering an impatience in children to be corrected for faults , and directed how not hereafter to commit them , makes breeding of children of such consequence ; that as the women of nombre de dios seldom are brought to bed there , where they conceive , but chuse a better air in which to bring forth ; so wits ( saith sir henry wotton ) thrive better transplanted then in their native soyl . youth then being such tinder , 't is good to prevent that by care , which negligence makes fatal ; for as in picture gladnesse , and grief , though opposites in nature , are such confiners each on other in art , that the least touch of a pensil will translate a crying into a laughing face : so in education of youth , vice and virtue are so near borderers one upon another , that it is easy to plant either of them on young stocks ; and many hopefull persons through the inobservance of parents , guardians , and tutors shipwrack , which had their pilots been knowing and carefull , had brought the rich gargazon of their mindes to a market of gain to their reputation , and advantage to the age of its production , which was the unhappinesse of robert de veer , of whom walsingham thus writes , qui quidem juvenis aptus fuerit ad c●ncta probitatis officia , si non defuisset ei in pueritia disciplina . the palpability of which injury to children is such , that even the grossest sort of men avoid it , and train up their children to courses of life suitable to their aptitude , and probable to afford them supports for life . so in the next words it follows : quis artifex tam negligens profectus suae prolis est , ut non eam dum pubescit artibus instruat , quibus posteâ vitae solatia nanciscatur , sic lignarius faber secare de labro , ferrarius ferire malleo filium instruit , & quem in spiritualibus ministrare ●upit , literis imbui facit , sic & princeps filium ' suum qui pòst eum populum regulabit , legibus instrui dum minor est , convenit . here the chancellour tells the prince , that the zeal that he has to his understanding of , and delight in the law as the rule of english justice , arises from that principle of paternal sagacity , which age and experience has brought to perfection in him , and his duty to henry the sixth , his liege lord , and the prince's father , ( now either in prison , or made away , could not in regard of the troubles of his life , and the absence of the prince from him disenable him to ) commanded from him . for though it be true , that young princes , probable heirs to crowns , are in reputation above all other persons ; yet may they want helps of instruction from their inferiours in station , who being zealous for their good , may not be rude and uncourtly , in communicating their counsels to them , in words pregnant , and with reasons solid . nor will any but rehoboam's despise it , since whatever love offers , is not to be reproached , though discretion may not accept it at the rate it is offered . if our lord commended the widows mite cast into the treasury , because she gave it freely according to the penury of her condition ; surely any address that good will makes , is to be received with kindness , especially when it comes a digno , and dignè , when the chancellour , a father in years , presents to the prince , as a youth of majesty , his humble and hearty counsel ; yea , indeed not to be concerned in the education and principling of this prince , according to honour , law , and justice , had been an offence against , and a breach of all the laws of charity and gratitude , which called the chancellour forth to a more then usual manifestation of himself ; that by producing a proportionation of care and zeal in parents , quâ such to their children , he might convince the prince , that what other discipline to meaner mens children is , that , the justice of law known , is to a prince , who without it , will be to seek of one of the flowers , and choicest jewel of his crown . as therefore it is the care of worthy parents to provide for their children , fortunes to live splendidly upon , if god please to succeed them in that just and commendable solicitousness ; so is it no less their study , to instruct them in such arts , callings , and courses of life , as renders honest industry , and convenient support and reward . and this the very reason of nature , in the lowest impartment of it , teaches parents to do to their children ; for besides that brutes do teach their young how to forrage , prowl , and provide for themselves according to the nature of their kind . the most rude , as well as knowing of men do train up their children in callings , that they may know how to live another day , as the proverb is . the carpenter he accustoms his child to cut with an ax , and a saw ; the smith to beat with the hammer ; and if a child prove , as that brave butchers son of ipswich did cardinal woolsey , so spriteful and eager after learning , so zealous in religion , that a clerk , or a church-man he must be ; then all that the father can wrap and wring shall be expended in schooling , and all this that youth may be sitted to the purpose his genius directs him to , and best furnishes him for performance of ; so does it become princes to express a proportionable care of their sons educations , as their proof is of greater consequence for good or evil : nay , there is no such a convenit , that a common parent should be intent on his child , to provide him good breeding and a calling on which he may live comfortably , as for a prince , because his influence being general , the care of him , in order to a general good , concerns the generality , whom his not being virtuous , endangers to be in no degree happy . the kingdom of macedon was lost by the covetousness of perseus the king of it . the treason of one count iulian was the cause that the moors conquered spain , and possessed it six or seven hundred years . the temerity of consul varro , in giving battle to hannibal , was the loss of the romanes at canna . these , and such like evils , are produced by the defects of men in place , and therefore great care is to be used in their education and conduct , that they appear in their actions compleat to the extent of their quality , and the proportion of their influence . to promote which , in a more then ordinary measure , the chancellour presents justice , resident in the english law , as the aptest aidant of him , and the thriftiest enterprize he can set upon ; yea , because the pliancy of youth gives advantage to the perfection of acquirements , and fixes attained habits in an unalteredness to their age , he perswades him to accept of serious and virtuous institution in his youth , and to believe that the laws of england are the best study he can engage in , because they are not onely the effects of reason experienced and methodized , but the peculiar rule of right government , and religious order ; the learning of which will be most facilitated , by beginning early , and persisting earnestly in the love and study of it from ones youth ; which the chancellour inculcates on him the rather , because he sees the inconveniencies that want of justice in the minds of princes , brings on them and their subjects , making them not meditative of their respective duties , but vigilant to over-reach and afflict each other : which evil spirit , so contrary to god's institution , and approbation , he beseeches him to abhor and discredit , by being the example of a just monarch , who by a religious and righteous reign over subjects , conjures them to a subjection suitable to his government : and this , if he does , he will not onely be a son of his incomparable father henry the sixth , but of his heavenly father god , whose place he in reigning bears . and so the sixth chapter , and the notes on it end . chap. vii . silente extunc cancellario princeps ipse sic exors●s est , vicisti me vir egregie suavissimâ oratione tuâ , quâ & animum meum ardore non minimo , legis fecisti sitire documentum . this chapter represents the prince , as sweetly and gratefully recoyling upon the chancellour , whom he not onely confesses potently oratorious , but sweetly a victor of his reason , into a resignation of practice to his precept ; so mild so ductile was our prince , that though it was not iob's hand-maid , whose counsel he desp●sed not , yet in that he was so observant of the wise advice of his inferiour , it argued him not onely not evil , like him the prophet mentions , who hated him that reproved in the gate , but very good , whom sober suasion , and affectionate tenderness did so effectually move , which is not ever the issue of good counsel given , to be kindly taken , and exactly followed . for mostly good advice is like to water spilt upon the ground , lightly set by , till it be dearly paid for , in the neglect of timely observance , which would have asserted the soveraignty of it . solon lessoned craesus the right use of prosperity , by preparing for its contrary before it came , but the philosopher was thought pedantique , and censured of pragmatique arrogance , till the time of craesus his trouble rush'd on him ; and then in his distress he cryes out , solon , solon , wishing he had credited his premonition , when there might have been hopes of anticipating his now miserable surprize : caesar had an intimation not to be at the senate the day he had his stab , but he contemned it , and lost his life by it . the duke of guise , in henry the third of france his time , was fore ▪ warned of his being slain not onely by nature , when she swooned a little before the duke sate at council , but by a note sent him by a friend ; to neither of which he hearkening , was murthered ; archias had had notice of the conspiracy against him , but he putting off the messenger that brought it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , till to morrow , and it acted on him before he would hear the discovery of it . but the prince here was better instructed by our master , who prefaced his advice , not as calisthenes fondly did , by freedom more bold then becoming , more rude then welcome and friendly , bringing death in by the ushery of love , and using the cloak of counsel to palliate the dagger of dispatch . no such projector , and half-faced traytor , was our good chancellour ; a gentleman he was born and bred , and a christian spirit , his piety and misfortunes by god sanctified , had begot in him ; and therefore he was not of cardinal prato's spirit , whom francis the first of france condemned to an iron cage , which was onely able to keep his pride within compass , nor of cardinal patavinus's , who rather then miss his plenty and extravagancies , would comply with any party , and serve any vices : no such miscreant our chancellour , he chose ( good man ) the noble attendance of his princes pilgrimage , before the enjoyment of his country , without his king ruling in and over it , and being of so masculine a soul , that , as prosperity made him not to boast , adversity not complain , neither passionate ; under all calm and conscientious : this , i say , being the virtue of our chancellour , deserved from the prince the title he here gives him , to be vir egregius . and justly such , for he was no rufus egnatius , more a ruffian then a long-robeman , but one singled out to this service , egregius , quasi ex toto grege electus , saith festus ; one , not to be pared in his age , nor to be fellowed for loyalty , not like nazianzens country of ozizala , abounding in flowers but barren of corn , that is a man of shew and talk , but of no sincerity and truth of wisdom ; no such man was our chancellour , but a sage of incomparable honour , piety and ability , whom no advantage would buy off from loyalty , and such he being , good reason he should be accounted , as indeed he was vir egregius ; yea , and without dishonour might his soveraign son say to him , vicisti me suavissimâ or atione tuâ ; for surely whatever his judgement dictated fit , his love put him to promote to his princes improvement ; no unprincely narrownesse did he principle him in , or counsel him to follow ; though undoubtedly he had metrodorusses enough to solicite him to accept of treachery to a good end : for his brave soul , like that of sextus pompeius , disdained to gain great things by indirect means ; and thus he serving his prince , could not but be acceptable to him , and the onely man of influence on him ; yea happy in some sort beyond the usual proportion of superlutive meriters ; for least he should have enter commoned with them in the misfortunes that the brave old marshal memorancy ( had by a remove from ●ourt , and mounsienr de vins notwithstanding his receiving a bullet at the siege of rochel into his body to save king henry the third , to his grief found true , according to the saying of lewis the ninth of france , too good service often undoes many men ; ) god called him out of life before he came to try what compensation his loyalty would have ; so that as he lived so he dyed an honourable victor over all difficulties , and received the testimony , that he had not onely asserted reason , but advantaged it by suaviloquious oratory , which is here termed , suavis oratio . and indeed if any thing have potency in it , 't is the rhetorique of affection , and the words of the soul warbled froma passionate and surprised lip , for its near allyance to if not samenesse with the heart , having the merit of all possible acceptation , can never fail of the utmost reception of kindnesse , and that is , victory over the ear and heart it addresses to : this pleasing effect , language expresses by sweetnesse as deleble to the ear as so also to the tast , to both which senses 't is applyed in prov. ix . . and xx . . stollen waters are said to be sweet , and bread of deceit is sweet . in iob. xx . . wickednesse is termed sweet : the influence of the pleiades are termed sweet , xxxviii . . friendly couns●l is termed sweet , psal. lv . . quiet sleep , sweet , prov. iii. . supply in necessity , sweet , xxvii . . yea , god himself condescending to the termes of mortal infirmity and apprehension , expresses his value of persons and things under this notion of sweet , cant. ii . . let me hear thy voice , for sweet is thy voice ; and the church is permitted , yea dictated to language her holy enamourments to christ in that pathetique acclamation of his sweetnesse , cant. v. . his cheeks ( sayes she of christ ) are as a bed of spices , as sweet flowers , his lips like lillies dropping sweet smelling myrrhe , and cant. ii . . she saies , his fruit was sweet unto my tast , the delight that god takes in his servants and their sacrifices is termed sweet , we are unto god ( saith st. paul cor. ii . . ) a sweet savour of christ , and phil. iv . . an odour of a a sweet smell , a sacrifice acceptable and well-pleasing to god , yea the sacrifice of our our lord iesus is termed an offering and a sacrifice to god for a sweet-smelling savour , ephes. v. . so that the prince in acknowledging the chancellours satisfaction of his doubts , and delighting his eares with words of reason and eloquence adapted to the conquest of his understanding and will , may well be expected , to not onely honour his chancellours gravity and learning , but to own his particular seisure into the power of efficacy of them . as it followes , quâ & animum meum ardore non minimo legis fecisti sitire documenta . by this it should seem , the chancellour baited his hookes to catch the prince by very subtilly like a master of the assembly , not with airy notions and soft triflings of canting words , but iovis & regis cerebro , with the brain of iupiter , with that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that flower of nectar , that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that milk of venus , yea that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that food of helen , which the poets expresse their hyperbolique fancies in ; for princes being born , what subjects are by accomplishment , cannot be surprized with ordinary forces of reason and quaintnesse , their mother understandings and abilities being paramount to them . in that therefore the text sayes , vicisti me suavi oratione tuâ sitire documenta legis , and that , non minimo ardore , it insinuates to us that there was somewhat above ordinary art , expressed by the chancellour , upon which so notable an effect followed , and 't is easie to be believed , if the consideration of the chancellor's origin , education , practice , office , ingenuity , all which speak him probable to be a master of language , as well as judgement ; yea , and if we consider to whom he applyes himself , and about what errand , to a prince , and for his polishing to a general after-benefit , these things premised will easily offer a conclusion on grounds of reason , that he did speak apt words to every purpose of prevalence , yea , and in that he bore away the testimony of making the discovery he tended to , our chancellour seemes more fortunated by god , then every brave actor in his brave action is ; for whereas they often miscarry through the inconformity of events to the latitude of their projects , he seems ( if this language be the prince's ) to be arrived at absolute successe , and to be in the conclusion what he intended in the attempt : the prince his affection , and respect he has gained , no man has his eares , no delight his heart more then the chancellour and his counsel has , the onely scruple resting unsatisfied now , is to appear , which if he can resolve , he 's what he would be , and that 's shortly this , sed tamen duobus me huc illúcque agitantibus animus ipse affligitur , ut tanquam in turbido mari cymba , nesciat quorsum dirigere pror as ; unum est dum recolit quot annorum curriculis legis addiscentes●earum studiose conferant , antequam sufficientem ●arumdem peritiam nanciscantur , quo timet animus ipse , nè consimiliter ego praeteream annos juventutis meae , &c. herein the text-master brings in the prince acting a part of great anxiety , and as it were labouring against wind and tyde the swift stream of his masterships reason ; for his highnes being but young and unfixed , and being mismatched by such a masculine and sturdy artist , who was to seek of no ram , petar , morter-piece , or canon of reason and art , to make his way through and through this royal stripling , had so distressed his proselyte , that he professes no cock-boat rides more untowardly , and with greater danger of shipwrack ; then he does in the high sea , & on the superficies of those surly doubts , and dissatisfactions , that possess him to a menace of o're-bearing him , fain he would please the grave chancellour , in being , as he would have him , a student of the law by knowledge , as well as the probable protector of it by office , and to the acquisition of skill in it , any reasonable time and toyl he would allow the study of it , but he fears the lyon in the way that stands between the law and his attainment , he sees many men spend many years in study of that , and that onely , and the abstrusity of it infructuates all their endeavours , their pleasure , their age , their strength intending its vestal fire spends ; yet they find no elixar of perfection , still they are to learn , and cases every day emerge to their non-plussing , and loath the prince is to engage on a long , desperate , profitless attempt , which will , after many years , and much industry , return him nothing but unsatisfiedness , loath the prince is to have vanity and vexation of spirit inscribed on all his pains and time allotted the study of the law. this is the force of his first argument . his next is , an angliae legum , vel civilium , quae per orbem percelebres sunt , studio operam dabo . nam non nisi optimis legibus populum regere licet , etiam ut dicit philosophus , natura deprecatur optima . indeed he is willing to be directed what well and wisely to do , and since he cannot better be by any then this aged knight , learned judge , and incomparable chancellour , to whom he promises indisputable obedience , ( quare libenter super his quod tu consulis , auseultaremus , are his very words . ) he desires solution , which of all laws are the best to study to know , and know to govern by . whether the particular municipe laws of this island , which are purely strange to all nations , or the laws romane and imperial , which are the directory of all civilized nations , and are as famous for their justice and reason , as the romane government , which introduced them , was for its conquest and prevalence . this is the sum of his argument , which because he starts not out of curiosity , as one nice and inquisitive , but that thereby he might be skilled in the best method of law , to the best end , order , peace , and charity . this evidence of his choice to be of the best , when he shall be directed to it , adds emphasis to the arguments scruple , and calls for the answerers care and cordiality , which the chancellour assents to undertake , professing , that though there be weight in the objections , and they are worthy the son of a king to make them : yet is not the law under such an obscurity of phrase and form , nor the books of it so many and divers , but that as little time and toil will be taken up in the study of them , as of other laws ; and thereupon he proceeds to answer the particulars in the following chapter , in these words . chap. viii . philosophus in primo physicorumdicit , quod tunc unum quodque scire arbitramur , cum causas & principia ejus cognoscamus usque ad elementa . this our chancellour begins his reply to the prince , that he may appear to him resolved , to give his scruples a fit and full satisfaction . the law indeed , the prince very much seemed to approve , and the study of it to acknowledge convenient , and in a sort necessary for a prince ; but that which he doubted of , was his possibility to attain it to any competent degree , in some convenient time ; as also which of the laws he should adhere to as his choice , to study and govern by . to both these our text-master gives solution in this chapter , and that by such a breadth and depth of foundation , as will carry currantly all his superstructure . to explicate which his design , he brings in what he has to write with this position of aristotels , that every thing is then said to be known and understood , when its cause and principle , even to its elements , is considered and ruminated upon . this sentence quoted out of the . phys. is , in sense , in other places of that author , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. nor can we be said to know any thing , till we apprehend the cause of it , for which , and by which it is such . so analytic . poster . lib. . c. . and in other places . yea since god has so connected things in nature , that they depend on him , and from him on each other , and pass through changes and degrees to their accomplishment , there is no understanding of the world in its mass , but from the apprehension of its 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , its efficient cause , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the cause from whence , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the matter of which , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the end for which , or the exemplar after which it is made . for since the material principle of the world is atomes , which amassed , makes by their infinity the moles to swell in bulk , and by god's art in natures work , to be in very deed beautiful , as it is necessary to contemplate , and venerate god as the prime cause and efficient ; for they are both one , though nominally they differ : so is it also the readyest and onely way to conceive rationally and judiciously of the whole by the apprehension of the minute , particles , and small beginnings of them , and the advances they being ( blessed by god ) make to after grandeur . which philosophers , as wise searchers after nature and reason , do therefore busie themselves in , because they find the ascent to a close view , and accurate prospect of them attainable onely by these degrees of motion from the centre , god and nature , to the circumference , effects of them . three words then here are proposed to couch the gradations of knowledge under ; the causes , principles , elements of things : which the commentator , probably averroes , thus explains , per principia intellexit causas efficientes , &c. by the principles , he understands the causes efficient ; by the causes , the causes final ; by the elements , matter and form . thus that commentator . indeed , without these three , understood in some competent measure , knowledge of any natural body or thing , is but dark and undelightful . the principle of every thing some say is the nature , rather then the matter of it ; so says the philosopher , for he makes it somewhat above what is gross ; therefore he says , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that from which any thing moves , is called the principle of it ; and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , this is common to all beginnings to be first in order of time , existence and influence . hence is it , that philosophers call these principles efficient causes , because they are the parents of all increase , and the products of all existence ; for whatever is , is , what it is , by force and actuation of its principle , god the first cause , and his benediction on the specifique nature , to which it appertains , and is principle . thus the principle of all being is in god , and the delegation of it from him to every created form and species under him . and therefore that passage of the apostle , in him we live , and move , and have our being , is exegetical of our dependance on god , as our supream and sovereign principle . the causes here termed final , are in effect , the same with principles : so says the philosopher , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , a principle whence any th●ng is known : therefore inasmuch as effects discover causes , and so things , they are principles , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that is , a cause from which any thing is what it is , saith the same philosopher . now though there be variety of causes , according to the several notion of men and things , which philosophers and school-men abound in , to a needless extravagancy , and men lose their time and judgment sometimes , in considering about them in the vastness and variety of their elaboration ; yet as they are soberly stated and considered ▪ they are very useful , and assistant to the understanding of all science . for causes have order in their operation , because the end is the reason of the agent , as the schools say , and thereupon because acts declare ends ; ( for knowledge is not secundum quod est in potentia , sed quod est in actu ) we are onely made knowing by the perception of causes in their actings , which we call effects , or the ends of their regency over , and energy in things . and thus god being the cause of the cause , is cause of the thing caused , because he gave to such causes power in subserviency to him the chief , and what the under causes does , the upper cause is entitled to , either as effecting , or permitting . for though reason be the order of procession from the cause , yet the cause is the impulse producing the act : and hence is it , that some learned men have derived causae from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ardor and incendium because men are inflamed and set on fire with desire to do , as if they could do no other , but do what they do . the last word in our text is elementum , that which supposes matter and form ; this in compound bodies is so necessary , that without all the four , water , fire , earth , air , in some or other degree , nothing can ordinarily subsist . this is confirmed by the philosopher in that chapter , where he makes it necessary to have four elements ; now that which is the first discovery of every thing , is its element ; and whatever being one and little , if useful to increase , that 's an element , in which sense , metaphorically , the greeks call the letter a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the first elemental letter , because it leads on to all the other , by which words are made , and things written upon ; and priscian terms a letter , the figure of an element , and an element properly the force and power of the letter . so that elements are the sine qua non's to all composition , and the understanding of all things ; which without them would be dark to , and inperceptible by us . and though there be a great affinity between principles and causes , yet is there nothing less then difference between principles and elements , i mean in the diversity of their nature , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. principles are immortal , increate , without beginning or end , elements are corruptible because created , and the ingredients of all compounds . yet even the prima literarum elementa , as quintilian terms the abc of arts , are to be learned , because they are the principles of speech and science , and lead to the greater mark , which they call matter and form , that which distinguishes all bodies each from other , and defines their particular species . thus knowledge is perfected by understanding the principle , whence all things arose , god's power , goodness , wisdom , manifested in natures order and efficacy . the causes final , or end , wherefore god reduced them to the position they are in , and has given them a law which they cannot disobey without rebellion and apostacy , that is , his glory and praise , for which they are , and were all created . and thus to know to the least punct of our duty , as rational creatures , is that which the philosopher intends by scire arbitramur , because made up of the knowledge of causes and principles to the very elements , that is , somewhat of insight into the whole chain of art , and into every link of it . in legibus verò , non sunt materia & forma , ùt in physicis , & compositis ; sed tamen sunt in iis elementa quaedam , unde ipse profluunt , út ex materia & forma , quae sunt consuetudines , statuta & jus naturae , ex quibus sunt omnia jura regni , ùt ex materia & forma sunt quaeque naturalia . here the text-master shewes the agreement which is between natural bodies , that consist of matter and form , and politique bodyes , beautified by lawes of order and use , which have the same accommodations to the ends of their contexture , as natural bodies have to the purpose of theirs ; as the matter of bodyes natural are elementary , and the form flowing from the soulary nature of every species is active and energical according to the denomination of its being , so is there in the lawes , reason , wisdom , justice , aptly worded , and orderly digested , which is called anima legis , and ushers in formam legis , which the lawyers understand by modo & formâ , and forma legalis , so frequent amongst them . now the chancellour sayes , these elemenss of the lawes do give occasion to those effluxions , which are equally correspondent in the law to matter and form in natural bodies , and of three forts he makes them , ( as sir edward cooke does also after him ; ) customes , statutes , and the law of nature . mr. perkins makes six grounds of the law of england . first , the law of reason . secondly , the law of god. thirdly , general customs of the realm . fourthly , principles or maxims . fifthly , particular customs . sixthly , statues . the law of nature what it is , is to high for me to determine , onely the use of it , god foreseeing , stamped the characters of it on all mens minds ; so that it is the seeds , and prime bounty of god and nature , whence what ever is right and law in the world between man and man , proceeds , thus hopperus ; and the same learned man , after he has spent much profitable discourse about it , concludes , that nothing is more peculiar to man to excell in , then iustice , for the practice of which virtue god especially created him , and appointed him the earthly temple of it . and hence is it , that the scripture has not onely commended justice , and set forth god the president and reward of it , but in the law of nature has so instituted man , that if he follow it precisely , he cannot but in propriis actionibus convenienter agere , that is , do every thing according to what god requires , and the law of his makers pleasure : for though positive lawes do variate according to diversity of men and times , yet this law of nature being moral and permanent alters not , but is central and fixed , and so the main ingredient of all obligations to virtue , and abhorrencies of the contrary . and on this ground the law of england is said to be built upon the law of nature , because it opposes every thing malum per se , and discovers the turpitude of it , and promotes what ever is just , honest , and of good report , which is the sum and end of the law of nature , concernwhich , see the notes on the third chapter . customes are the second triangle , and these are of an high nature , so that in the philosopher's sense , they are the great regents in all the world , so favourable to evil , that god charges the vanity and provocation of idolatry to the account of ethnique customes learned by israel , and reproaches them for vain , ier. x. . but these are not the customes the common-law is built upon , for whereas they are mala per se , and tend to evil , setting up mischief as a law. the customes of the common-law are the harmlesse and approved usages of the nation , time out of mind , and without interruption , and these are so far from being evil , or if they be so , from being continued such , that nothing of that nature can justly be charged upon them , which the prudence of kings in parliament have not , and may further as they see wisely and worthyly fit , remedy . the jewes ( great doters on customes ) have several words to expresse them by , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , denoting the addiction men have to it , while they make it their path and way to walk in , natural to and beloved by them , ezech. xx . ● . and gen xxxi . . by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , so ps. cx . . thou art a priest for ever , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , secundum morem vel consuetudinem melchisedec , which the authour to the hebrews renders 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , according to the order of melchisedec , or as vers . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , according to the likenesse of melchisedec : by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , denoting a long use from the law of nature and nations , by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , levit. xviii . last , derived from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , statuere , inscultere , vel imprimere effigiem , alluding to the force of custome , which transformes man from what he was into somewhat which custome makes him to be , as a carver makes a peice of wood rude and rough , by his art , symmetrious and lovely , or the contrary ; ●o custome rules men to what it self in nature is , pro decreto & statuto habetur , saith kimchi , these words so various and s●gnificant expresse the jewish notion of customes . the greeks called custom 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the unwritten law ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as a sign or direction to what is to be done , and whereas law is written custome , that is , the mos gentis vel loci , is presumed for the good of people , and by them as such observed : this custome as here understood is not , as suidas sayes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. onely the invention of men , but the act of life and time , not working 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by force and fear as lawes of penalty do , but by inclining men willingly to a resignation of themselves to it , makes in time it self absolute lord of them , and brings them under a pleasing subjection , in which they are resolute and unwearied . our law under the word custome couches many things , . common-law , . statute law. . particular customes . rent-services . . tributes and impositions . . subsidies . but these are large notions of custome , that which the text intends by custome , is more presse common usage , time out of minde , and peaceable without lawfull interruption ; of this bracton a learned judge in henry the third his time writes thus , consuetudo quandoque , &c. custome sometimes is observed for a law , especially where it is generally approved , for there it is the law , for use of ancient times and customes is not of mean authority . this of bracton is the voice of policy and gubernative wisdom in all lawes , inveterata consuetudo , &c. ancient custome is most deservedly allowed law , saith iulian ; the like say vlpian , hermogenianus , paulus , calistratus , mo destin●s , and all lawyers , yea those passages in the civil lawes , consuetudo dat jurisdictionem , est optima legum interpres , that custome gives iurisdiction , is the b●st interpreter of law , that the custom of a place derogat legi● in illo loco , prevailes against the rule of law in that place : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 jus or justitia , homer takes also for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 custome , yet such a custome , as is jure receptum . these and hundreds of such affirmations indulgent to local customes , declare the vigour and virtue of customes , as that unwritten law that is antient , acceptable , and convenient for that place ; hence is it , that the law of england allowes customs ( cloathed with time and usage , long and quiet without legal interruption ) of great authority : for as every place almost , so every court has its peculiar customes , which are lawes to it , yea the high court of parliament , suis propriis consuetudinibus subsistit , has its peculiar customes , which are called lex & consuetudo parliamenti ; and though , saith sir edward cook , ista lex ab omnibus est quaerenda , à multis ignorata , à paucis cognita , yet such a law and custome that sacred sanbedrim hath . indeed customes , mala per se , are void in law , and so are those that are contrary to national justice ; as were the customes in e. . mentioned by sir edward cook , and that other in the cafe of william of brimington , and the tenants of bramsgreen and norton , which therefore were judged void , because they were contrary to reason : and some will be apt to say of that nature , may be that custome in some part of gloucester-shire , that the goods and lands of condemned persons fall into the king's hands onely for a year and a day , and after that expired , return to the next heires : but in other cases where customes are reasonable , just and good , there they are presumed of great validity , and to have a good and sage commencement , though we know not the precise moment and manner of it , so resolves the learned selden in the many cases he instances in . and so is the judgement of linwood , who describes the proofs of custome thus , the witnesses are upon their oathes and consciences to say , quòd semper fic viderunt tempore suo , &c. that they have always seen it so in their time , and heard it so from their elders , neither did they ever hear or know the contrary , and that the common opinion is , that so it is , and has been in all times , in the memory of all men , and it is required , saith he , that the witnesses that depose a custome should be born in , and dwellers near the country and place , where the controversy is : thus linwood in the case of a particular custome , which yet is far short of a general one : for that being the common-law of the nation beares down all pleas against it , for that being the common-law of the nation beares down all pleas against it , that are not established by regal sanction in parliament , which the text calls statata . these are the lawes of the king made by the assent of the three estates his subjects by his authority called and kept together ; statutes , not statutes of omri , of disloyalty , treachery , disorder , but statutes of loyalty , piety , probity , humbly preferred , judiciously considered , soveraignly passed ; these , and these onely our lawes allowes statutes ; favours of the king to his people upon the presentations of their requests by their trustees the commons , and the advise and assent of the noble peers , the lords of the clergy and laity , to his majesty for his assent and consent , which is the inspiration of their soul into them . these lawes thus formed and emanating are the third basis of our lawes , and indeed the most probable engine of our rectification imaginable , since by this blessed act of wise and worthy legislation , lawes in cases omitted may be made , in cases dubious explained , in cases obsolete be vacated , in cases hard be indulged ; in all cases be accomodated to god's glory , the king's honour , and safety , the peers lustre and dignity , the peoples peace and prosperity . but because , of this i should have occasion to write in the notes on the . chap. i le desist further proceedure on them here . onely in that the chancellour says , all the laws of england do proceed from these as their elements , and constituent parts , there is a good argument to admire the laws of england , as most useful in , and most just for the government of the people . for since the wisdom of god in the law of nature , the customs of people in the common consent of the nation , the divine soul and sentence of the king assisted with his peers , reverend prelates , and renowned lay-lords , ( men in whose counsel , there is science , seriousness , and security . ) since these , i say , do all co-operate in maintaining the laws in this their triangularity , there is a most undeniable argument , that the law of england is a choice law , extracted from , composed of the quintessence of all laws , and suitable to all gubernative purposes , and in no sort defective to the carrying on of piety to god , loyalty to the prince , and charity to one another . and therefore , though the rules and forms of law , are the marrow of the knowledge of it , yet are the letters of which the words , and the words which make the ●ense of law , as of all other learning , to be well understood by the student , since they are as the elements of compound bodies , the grounds and inchoat ducts to the more consequential parts . 't is true , as in the body , the eye , brain , heart , face , as the most conspicuous and useful parts , are first honoured , yet cannot the body subsist , nor the anatomist exactly read of the structure of it , without knowledge of the less useful and honourable parts , and consideration of them in their respective position and use : so in arts and sciences , as this of the law , without elementary knowledge , all other is unattainable , not possible to subsist : therefore the text says , et ut ex literis , quae etiam elementa appelantur , sunt omnia quae leguntur . what attomes are to the earth , drops to the ocean , rays to the sun , sparkles to the center of fire , that are letters to science . nature works gradually , and her increment is by progression from little to more , and from more to most of her capacity . and hence is it , that as painters that are masters in picture , have pensils of all sizes and colours , intense and remiss , in the equality of whose mixture , the vigour of colours , mediocrities of shades consist : so is there in the rule of nature such a lesson taught us , as first to inure our minds to the smaller and less burthensome things of science , letters , before we approach those that are ingenerated by their introduction : principles must , in this sense , follow elements , as words do succeed letters . principia autem , quae commentator dicit esse causas efficientes , sunt quaedam universalia , quae in legibus angliae docti s●militer , & mathematici maximas vocant , rhetorici paradoxas , & civilistae regulas juris . the chancellour pretermits no animadversion that may adorn the law , and make it venust and taking , for though it has its pendants and knots of elements , which trick and adorn onely , yet has it also the more elaborate and becoming parts of lovelyness and feature , which are so necessary to its operation , and rational acceptance , that without them it would not evidence so just and ingenuous a merit . now these he calls maxims , which carries a sense of grandeur in it , as intending to dignifie the things understood by it with a note of transcendency . these maxims are the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the depths , and restorative quintessences of law ; that from whence all inferiour things have their invigoration and spiriting . thus the lawyers , as the mathematicians in their art call maxims , such notions as are the best in their kind , and productive of many excellentillations from them , and that from the authority of antiquity , which not onely termed god the architect of the universe , maximus , but all things superlative in their kind by this title . the greatest overseer of the romane ward , was termed maximus curio , and celsus calls land held by a high tenure , optimus maximus fundus , and the lady princess of the vestal nuns , is by valerius and suetonius , called maxima virgo , and maxima vestalis : so that our lawyer by maximus understands , a sure foundation or ground of art , and a conclusion of reason . so saith sir edward cook , and plowden seconds him , quia maximae est , &c. because great is its authority and dignity , as that reason which is indisputable , and not to be contradicted . so is the authority of henry the first , n'est my a disputer l'ancient principles del l●y . of the same nature also are the rhetoricians paradoxes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that which is beyond the common notion of men : and admirable in their opinion , is a paradox . so the civilians have their notable observations represented under what is equivalent to either of these , and they call them rules , which they define , a rule , say they , is a delivery made of many things , by a compendious narrative of them , that is , a short account of the substance of things of moment . and as the law is by chrysippus called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the king of all ; so the rule is , legis regina , the queen , and most excellent part of the law ; that which there is no receding from , but upon unavoidable necessity . it needeth not to a assign any reason , why at first they were received for maxims , for it sufficeth that they be not against the law of reason , nor the law of god , and that they have always been taken for a law , saith doctor and student . ipsa reverâ non argumentorum vi ant demonstrationibus logicis dignoscuntur , sed , ut secundo posteriorum docetur , inductions , viâ sensus , & memoriae adipiseuntur . in these words , the text-master shews the nature of principles transcending grosseness of sense , and therefore not to be examined by , and calculated exactly according to it . for as in matters of faith , there is no reduction of it to the narrow limits of humane bruitishness , but the rule of belief is the perswasion of the truth believed , & the recumbency of the believer on god , who is truth it self , in the assertion of that which from him mans understanding is informed of , and affections sharpned on to believe : so in maxims and principles of science , there is no pre-existency to be imagined to them in the art ; but all that is knowable , is emanation from them , and the majesty and reason of their conclusion and positivity , which is the reason that the philosopher allows no disputer to deny a principle ; for that done , undoes all that is subsequent , and takes away the very being of argumentation . for how can any artist advance an argument in any art beyond the first discoveries of that art ? and how can any demonstration be made beyond the line of discovery , and demonstrability ? for the rule and principle being the ultra auod non , beyond that there is no discourse or discovery . let then principles remain mysteries , not to be dived into , but adored , because of their coparcenry with divinity , and let the senses and memory of man content it self with such attainments , as are conceded them by god , in the right improvement of nature , and the religious use of her indulgencies . and as no man can define light , as it is in its principle , because it is like god , indiscribable , being a ray from his essential glory : so can no wise man properly and wisely determine principles by any common notion , or rational apprehension of them . for though they are , and are declared to be what they are by their effects , yet are they hidden , and cryptically reserved by god from the plenary discovery of our senses , that we by them unknown , might be kept humble and dependant on his omniscience , which onely has access to all things , or rather , from whose brightness all natural things are illuminated : and this being , as i humbly conceive , the true apprehension of principles according to the here alleadged authorities of the phylosopher , primo physic. and topic , his inference is rational . igitur principiis imbuendi sunt , quiqui gliscunt aliquas intelligere facultates , ex eis etenim revelantuar causae finales , ad quas rationis ducta per principioram agnitionem pervenitur . that is , as no man can regularly build without square and line , which do measure proportion , and keep the symetry inviolate ; and no man can war , except he have knowledge of , and care to adhere to the principles of conduct and battle ; so no man can understand science , unless he allows principles , and conform his notions to the canon of them . for his end in study and disquisition , being to attain knowledge in , and mastery over the difficulties of the art , and so subjugate them to his understanding , and to accomplish himself by helps of them , there is a necessity ( miracle not being taken in ) that reason operating , by the principles yielded to , can onely bring him , and his end together . for principles are the advances , to the end knowledge ; they are the single numbers , by which the numerals of art are made up ; they are the guttulae , which in their musters , and rendevouzes , amount to a sea of art. and those that contemn these steps of ascent , will never mount the throne of science . take away the knowledge of these , and arts will be under as great an eclipse as the earth would be , when the sun were routed the firmament : dispute these , and deny them to be their own testimony : we shall be all sceptiques , and seekers after what we know not , nor shall ever find : and as he that builds without a foundation , will be but a foolish builder ; so he that studies , without acquainting himself with these fundamental universals , shall bring his study to a vain issue , and prove ridiculous ; for as by the pregnancy of the soul , the faetus is fomented and invigorated to birth , and from the life thence commenced , takes augmentation by the nourishment of its mother ; so art is quickned by the principles of observation and experience , which imbibed , render the means study ( next under god ) able to produce something towards perfection of knowledg . and as where there is not a hailness of constitution , & the body is not prepared by the common good habits of health , to nourish the ●mbrio to quickning , and after to assist it in birth , no compleat vigorous infant comes forth , but rather a chix , or a lump of flesh and blood , appearing articulately perfect , but not compleat , as to the integrals of internal soundness ; so where there is an unsavouriness of conception , and the mind , by being vitiated by ill prepossessions , cavils at , and is carryed with a leaven against old rules and maxims received , there the greater pains is taken , to know the further perplexity , and mental fury is contracted , and men grow rather averse and obstinate , tetrical and opinionative , then sober , civil , useful , and learned . for true knowledge begins first at our selves , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and proceeds to know others aright , by valuing their virtues , and pittying their infirmities , then it comes to view in the glasse of a pure speculation , what it may possibly , ought rationally , and doth effectually know ; and because it finds its knowledge , is but as a point in the latitude of the universe , it more endeavours to search , then boasts of attainment . and hence it comes to pass , that the great boasters are not the great gainers , nor are men of singular ways and expressions , always of soundest judgment , and sincerest hearts : for as creatures that are of wild & ravenous nature , affect devious paths and avoid the ways of conversation ; so men of design , to be tragical , and ruinous to any cause or profession , forsake the old way , the good way , and in just return , are often forsaken ; for as the truth makes men free , so errour leaves them in bondage . and therefore the old chancellour has drawn herein to the life the portraicture of a good artist , while he presents him oculo ad calum , manu ad clavum , calling on god for a blessing , and expecting it from him , while he keeps in his way . god has an especial favour to order , 't is himself , and what of it is in us , is of him , a drop from his ocean , a ray from his sun , a beam from his light , an emblem of his infinite perfection . and those that go the way of god and nature , may expect the reward of both . for minds and bodies are so near of kin , that a roving head seldom keeps a healthy man ; and none are so apt to lose all that is in this world of value , time and health of body and mind , as those that are inquisitive after more then is fit for them to find , or appointed for them to know . god has confined study to his rules ; and the principles of every art , are to bound the artist ; for they are necessary to the knowledge of it , necessitate medii . therefore ( faith the chancellour ) principiis imbuendi sunt , &c. ex eis enim revelantur causae finales , ad quas rationis ductu per principiorum agnitionem pervenitur . now that a pythagorean , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , may not bind up the prince to a rigid conformity , and implicite belief , without any conviction of his own reason , which is a kind of divine judicatory in him , the chancellour here shews the necessity of knowing the principles of any science from this consideration , that they are the lines of communication , which reach to the end , center , tendency , and drift of every profession ; for the rule and principle is of the heighth and marrow of every constitution , and the end is the perfection of every thing . since it is that , for which every thing is ; and therefore because it is to be advanced to with much consideration and resolution , notwithstanding the impediments to proceed , and not to be hindered , the chancellour adds , ad quas rationis ductu per principiorum agnitionem pervenitur . for as there can be no motion without life , no augmentation without motion , no sensation without organs of sense ; so there can be no apprehension of principles without rational organs : for it is reason which apprehends and improves every rational creature , not onely by directing it to what is good , but fore-warning it against what is hurtful . and therefore no man's procedure is lesse or more then his reason ; nor his reason other then suitable to the organs prepared for them . for the soul in the formatory of all our reason , and the emanation of it , and the actions of rational creatures are so far praise-worthy , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as they are directed to a good end , which ever is carryed on by good means . vnde his tribus principiis , causis , & elementis ignoratis , scientia de qua ipsa sunt , penitus ignoratur . that is , the science consisting of the knowledge of the efficient cause , the final cause , and the elements . if these be not known in their command , subserviency , and congruity each to other , all that is thought to be known is but babel , rubbish and mortar to the noble structure of art , a chaos of notions or omniformity of fancy , no polish'd or trim fabrique of learning . for example , in the point of law , and knowledge of that , the efficient cause of the law are governours and people excited by god , out of ends of good to civil society , to make laws by consent , or obey good laws made by command of their superiors , though against their wills , yet for their good ; for laws are the effects of power , and have the stamp of empire before they are owned such . and again , laws are in remedium & tutelam , and therefore are ever acknowledged to be made for good , or at least so apprehended , therefore i term them made for ends of good , and i consent to them , as made by men excited by god : for since laws are advantageous to good , and hinderances of evil , and man naturally is evil , and inclinable to evil . what he is an efficient of good , must needs be by the over-ruling of the supream cause god , who is the author of every good and perfect gift , and who emphatically is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the law-giver . for kings , princes , parliaments , and all the learning of men and ages , are but feskues in the hands of god to point us to duty ; and if he does not sit in the assembly and judge among the gods , laws will be ligule non regulae , wit hs to bind the poor , but not able to hold sampson's , whereas laws ought to be regulae ad omnes . then the causae finales of law are order , justice , concord , peace . these were in the mind of god , when he thought upon making man , and politizing the world ; and these he works in the hearts of men in place and power , to propagate and effect , as they have opportunity . and therefore the student of the law must endeavour to know what justice is , and how it respects not onely the peace of his own soul , but of the whole nation , and how it has regard also to for reign correspondency . for iustice is indeed all virtue . hence was it that athenaes tells us , that antiquity represented justice to have , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a golden face , and golden eyes , tokens of amability , and purity ; yea , the first altars they erected were to iustice , as the diety subsidiary of all . and he that is deservedly an aristides 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , may well be prayed for , that his children may be numerous , and that they may in justice be like their father ; since iustice is like the cement , which keeps the parts of the structure together under the common bond of union ; and by such connexion , prevents scissure and fraction , which in time , effects dissolution . and therefore as divines that preach sanctity of life , and likeness to god , that call on the people to be mortified , and to be subject for conscience , should themselves , of all others , be most holy , most pure , presidents of piety and patience to others ; not heady , high-minded , effeminate , disturbers of order because they have daily lectures of preciseness herein from the severity of their profession , and the effect it should have on their own lives : so of all men none should be so averse to injury , so free from strife , so gentle in bearing with the follies of the plebs . so resolute to propagate order , honour , and learning , as men of law. for their profession is jus dicere & docere , right is the genius of their study ; and to prevent wrong , ought to be their practice . since the end of laws , is to keep men in government by the contexture of law , and the distribution of justice according to it ; and they who profess the law , and use it onely as a decoy , to call fortune to them , by over-reaching weak men , and suppressing right by power of argument and favour , are lawyers per antiphrasin , as richard the third was heir to his nephews , of whom the bishop of carlile said , he was malus haeres , they are possessours of the name , but not virtues of those pristine lawyers , pomponius , cajus , aquilius , servius , papinianus , bracton , glanvil , littleton , gascoyn , and others since , who were not temptable to injury , neither by favour nor frown . vnde his tribus , videlicet principiis , causis , & elementis ignoratis : scientia de qua ipsa sunt , penitùs ignoratur . that is the media and passes to perfections being obstructed , or rather not made ; there is no possibility of the perfection to be attained which they are ducts and convoyes to ; as without eyes and eares man can see or hear no letters , without reason not judge , without memory not retain , so without consistency and sobriety , not submit to principles , and be ruled and swayed by them ; the want of which rational passivity causes all the pedantry and scepticism that is in the world . i or though it be a brave daringnesse of reason to consider and search into things , and perfection , as it is attainable by man , is thus advanced to , yet is there danger in too far ventures , to be immerged and in the depth of new discoveries to lose all footing of pristine science ; for laxation of principle once assaulting new discoverers , brings them to such a levity and itch of progresse , that they acquiesce in nothing but uncertainty , and grow unnatural to the pristine principle of their fixation , which if they would as to the main adhear to , would encourage them to many rational advances , by which from the concluded root and maxime of art , many notable slips of science might be attained , which would make a pleasant shew in the knots and borders of arts implantation : tho i well know it 's a very hard matter to form with nobly ingenious des cartes a new philosophy , and not with his transcendent genius to resolve to do it by a declension of all former preconceptions , and a pleasure to unlearn whatever he has afore learned . thus as the civil law accounts a house or ship , that has been so much and so often mended , ut nihil ex pristina materia supersit , that it is nothing of what it first was , but all new ; yet the same it first was , notwithstanding all its changes ; so is it to be accounted possible , that men may finde out new discoveries , as has been abundantly by our famous country men in physick and mathematiques of late , yet be still loyal to the principles , elements and causes of science , which they overturn not , but understand more rightly , and apply not contraryly but diversly , as their notion and indagation directs them to . for since all the knowledge and discovery our nature can make , is but confused and dark , by effects to know the causes , so far as they explicate themselves , and are served by proper instruments . as it becomes the reasonable soul of man to actuate it self proportionably to the divinity of its constitution , so does it also import it to keep close to truth , and to be conducted by sobriety to the search and service of truth , least while it peepes into the secrets of god to see what there is , ( which it ought onely to admire , contenting it self with what god has revealed as its boundary ) it fall into a phrensy and raving in which it loses its self , and gives too just cause to censure , that not desire to know , as knowledg is the image of god , and in the rectitude and sanctity of it is usefull to man to inform him of his duty to god , his neighbour and himself , was the motive to disquisition , and the unctious liquour that fed the lamp of its persistency , but pride and sacrilegious ambition to exceed others , and thereupon to brave with , and boast against them : that i say these were sinister proposes of their minds , which kept them in this fruitlesse toyl . but it followes , sic legem divinam nos nôsse judicamus , dum fidem , charitatem , & spem , sacramenta quoque ecclesiae , ac dei mandata nos intelligere sentiamus , cetera theologiae my●eria ecclesiae praesidentibus relinquentes . this is added to shew , that all men in the church called christians , as they have not alike in place and office , so have not like endowments , nor ought necessarily to be alike knowing and scientifique . all men without doubt that believe there is a god , and are baptized into the name of christ , and have resigned up themselves by baptismal vow to be god's , in knowing his will that they may do it , and deny all ungodlynesse contrary to , and inconsistent with it . i say all christians within the pale of the church and cruce signati , are without dispute to know the elements , principles , and fundamentals of religion , which ( though all may not ) yet are chiefly and in their vividst representation brought in here under the ternary , that st. paul makes the sum of all religion , faith in god as , he is , and is a rewarder of all that seek him , as all the promises of god are in christ iesus , yea and amen . as it is the evidence of things not seen , and the substance of things hoped for . love to god for his own sake , as the infinite , eternal good , and to men for god's sake , since he that loves not his brother whom he hath seen , cannot love god whom he hath not seen , and hope , as the soul's anchor , that keeps the heart from breaking of from god by temptation or despair , and knits it to him according to that of king david , i had veryly fainted in my affliction , but that i hoped to see the goodnesse of the lord in the land of the living . i say , these graces as the principles of adhaesion to god , discretion and religion towards men , support and comfort to a man 's own soul , ought to be the study , and diligent intentnesse of every man to get , not onely to talk , and in the notion and superficiality of their apprehension to understand , but plenarily and affectionately to know that they may apply the comforts of them to their souls ; for theology being an affective and practique science , is then onely rightly known , when 't is applyed in the comfort and practice of those excellent graces it speculates and professes . then we know and understand what faith is , when we live not by sense , not by the impulses of pu●id reason , but as seeing him that is invisible , as having an eye to christ the president of sanctity , who calls us in our desires and delights from this world , in which we are but strangers and pilgrims to our country above , the inheritance amongst the saints in light . then we hope upon good grounds , when our conscience witnesses with god's spirit , that we are god's purchase , and thereupon may expect and hope for his promise : that we are those that live to god , and having this hope in us , purifie our selves as he is pure . then we love god as we ought , when his love shed abroad in our hearts , makes in love all his commandments by keeping them , and not thinking them grievous , all his servants for his likenesse in them and love towards them , all his ordinances for his impresse upon and glory from them . for though the scholes and after them the wits of men may distinguish praceptum and mandatum , making those onely precepts , which god by himsel f commanded , and those commandments which by others he gives to his people : and hold themselves obliged to know and practise the former when they dispense with the latter , which surely is of equal authority ; and so our lord saith , he that heareth you , heareth me , and he that despiseth , you despiseth me : though i say these partialityes and haltings in duty to god , according to the measure of our enlightning , may hurry some unstable minds into precipices in which they will finde no comfort . yet this is , mandata dei intelligere ; when the intellect officiates in order to practical piety and devout zeal , when it puts a man not so much upon myriads of accumulated notions , and ingenuous speculations , as upon the one thing that is necessary , parting with all we have and are for god , counting all our parts but as filthy rags and prostituted loathsomnesses in comparison of his glory . indeed if a christian reaches but this note , he bath voice enough to beg heaven with , and obtain it by , no nee d of the vast learning , subtle arguments , quaint strains of seraphique philosophers , and potent orators ; these graces in truth , will bring heaven down into the soul of their possessors , and carry their possessors into the mansions christ has purchased and prepared , which if so they will in a competent measure enworthy us for the right use of the sacraments of the church , which , they onely know comfortably , who live in faith , hope and charity : for suppose a man could discourse of the sacraments not of , but rather in the church ( for the two , baptism and the lords supper are christ's sacraments , instituted for the churches edification ) though baronias tells us the apostolique times expressed some other things by the term sacrament , the other five being the romish churches , shall be no part of my discourse . ) suppose , i say , a man could dispute and write of them , as never man did , rather , as the best of men have done ; yet if the power of them appear not in his life , all is to no purpose . christ will never own men for their knowledge but practice , nor shall any man have a place in glory as a reward of his ingenuity but virtue ; wits make men sometimes favourites here , but grace onely is the object of ●acceptation with god : be , o my soul , a good christian in the holynesse of an humble life , and live up to the bond of thy baptismal vow , examine thy self of thy sincerity , resolve against that sin , which makes and continues thee unworthy of the body and blood of thy saviour in the sacrament , and thou hast learning enough to make the happy , and out-shine all this worlds lucifers ; thou shalt not need to envy the greatest parts , or the gravest years , or the goodlyest growth of learnings splendor ; thou hast all in thy unfeigned devotion , and in thy firmer affiance in god for the reward and interpretation of it . caetera theologiae mysteria ecclesiae praesidentibus relinquentes , &c. this is subjoyned , to teach us , that there are many things in knowledge appendicious , and exploratory of compleatness , which are not fundamental , and requisite absolutely to make us secure from the wrath to come . god , as he has not made all men of one mould and stature , of one likeness and capacity , so has he not in his wisdom and justice appointed one and the same proportion of parts to be in all men ; nor will he judge all men according to one and same expression of themselves . indeed , the chief extrinsique wheel of faith is science , which through perswasion blessed by god , works the soul into a submission to god ; but god alone is the first mover , and the intern cause of our motion towards him ; and therefore there needs nothing to our security , beyond our humility before god , our sincerity to god. this will avail for our happyness , as much as we shall need ; yet are there accomplishments , which men in place and extraordinarily gifted attain to , which are not onely ornaments to them , but influences of good to others . the church of god has her 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and her 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as well as any other society of men , and the bishops and governours of her are the proper oracles of them ; men of years , learning , piety as they are and ought to be , are the probablest to know , and the meetest to handle those sacred rites , and renowned mysteries , which are then perverted and distorted , when the discourse of ignorant and impudent men ; wherefore antiquity ( to make religion venerable with , and influential on the people ) kept the plebs at a distance from the s●ght and audience of the mysteries of religion , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. because the hearers of them were by the law of their constitution , to shut their mouthes , and to tell what they heard to no man. of all the religious rites and mysteries , none were among the heathen like the eleusinian ones ; those were so serious and solemn , that none who were not sacris initiati , were to be present at them , and while they were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which was a twelve moneth , for their probation , they were kept at distance ; after that , they were admitted to the greater mysteries , and were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; to which saint peter alludes , pet. . . but were eye-witnesses of his majesty : yea , so much further reverence were these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 enjoyned , that they had an oath given them , not to reveal any of the great mysteries to the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , those that were but entred . these devoted to the service of ceres and proserpina , cicero alludes to , when he enjoyns the orator to conceal what his clyent has committed to his secrecy , as if it were a mystery . of these mysteries , alexander ab alexand. agellius , iul. caepitolinus , aelius lampridius , ammianus marcellinus , xiphilinus in epitom . dionis , p. . in adrian , herodian , lib. . p. . and particularly lilius gyraldus , these , and multitudes of other authors , have written of the trash and trumpery of these devotions ; which here to mention , were to abuse the reader , and to misuse time . the mysteries of christianity are no such silent nothings ; god has indeed committed to his church-men , the oracles of god , the word of reconciliation ; and the church , as the spouse of christ , is to be conducted in her march towards heaven , by these prasidentes ecclesia , who are guard to her , which is a city by them watched , the spouse of christ by them adorned , the sheep of christ by them fed , as saint bernard notably ; and therefore it being their duty and office , ornare spons um nou spoliare , to adorn , not rob , to keep , not ruine ; to institute , not prostitute the church ; god has given them power suitable to their trust . they are now lifted up above the meaner degrees of men sacrated to god , and are made watch - men and overseers of their spiritualities : and the presidency god has invested them with , being for edification , not destruction , deserves from them double honour , who by their care and conduct are kept from wander and errour ; yea fed with the sincere milk of the word , and may , and ought to grow spiritually thereby . though then all men are bound to know the things of god which are revealed in his word , as matter of their duty , and which by reason of god's postulation of them , he has given them possibility , and convenient helps ; to their indoctrination , such as are the grounds of faith , the law of conversation , the institutions of christianity , which are all couched in those words , dum fidem , charitatem , & spem , sacramenta quoque ecclesiae : yet are those whom he hath made his ambassadours and workers together with him , secondary apostles , not stinted to this proportion . there are caetera theologiae mysteria to be studied , and understood by them , over and above those , merè necessaria , which other christians are obliged to . they are to be salt and light , furnished with greater proportions of illumination and discretion , then the people are ; because the people are to enquire the law at the priest's lips , therefore god has promised those , their lips shall preserve knowledge , and chiefly sure , that knowledge that is peculiar to their calling . for though it be commendable in divines to know every part of science , and the more accomplished they are in the universality of their reading , the probabler they are to shew themselves work-men that need not to be ashamed : yet for them that are in holy orders , catholiquely , apostolically , can●niquely ordained , for these to be goliah and apollos's in other skills , and rude and unstrenuous in divinity , for them to know least in that which they profess , and by reason of which they have care of souls in the church , is very much a blemish , and i had almost said , a blasphemy : sure i am , 't is a botch and spot , which is not the spot of god's people in the priesthood . whether then the presidentes ecclesiae be here meant largely , for such as are in the order of evangelique priesthood , which (a) turrecremata affirms to be instituted by christ in his holy supper , when he himself priested all his apostles : whence (b) benzoniu● , out of saint (c) chrysostome , as he alleadges him , calls them vicarios christi , immo ipsum christum ; and out of others , sacerdotes deos quosdam esse inter homines , &c. or for the fathers of the church , the episcopal order , which he says christ instituted , when he consecrated saint peter , and in him , all his successours in that superiour order . or if not so ordered , yet of apostolique origin , and catholique approbation , as is evident in all the histories of the church , which do unanimously give testimony to episcopal iurisdiction and preheminence . i say , whether the text be understood in the lax sense , or rather in this more press one , for governours in the church , ( called by the statute of the . of eliz. c. . the bishop or guardian of the spiritualities : by the . of eliz. c. . the state of the clergy , one of the greatest states of this realm , arch-bishops and bishops ; who by reason of their dignity , deserts , and influence , are termed the church ; and so also are expressed in the statute of hen. . c. and which baronius tells us the honourable account this order had , being early after christ called apostles , which perhaps saint cyprian might allude to in these words , vnde scire debes episcopum in ecclesia est , & ecclesia in episcopum . ) the rule is very good ; that the more copious and curious knowledge of religion is proper and peculiar to them to know , that they may be able ministers of the new testament , and be meet to every ministerial purpose . quare dominus discipulis suis dicit . vobis datum est nôsse mysterium regni calorum , caeteris autem in parabolis , ut videntes non videant . this scripture , in mark iv . . comes in patly to confirm the proposition ; god's ministers , bishops and presbyters presiding in the church , are to know the mysteries of religion beyond the proportion of other men : why ? because they are set apart to that work : how ? by god specially qualified to such accomplishment , not as men , for so they partake in common with others , and are more or less apt , as they are more or less endowed with natural parts , and noble acquisitions ; but as they are haereditarii christi apostoli , as they are set apart to god , and have renounced this world ; so they seem to be entituled to greater proportions of illumination , even by virtue of this scripture , which though spoken to the apostles on a particular occasion , yet has a kind of promissory benediction in it , which is descendable on all the successions of men in the ministry of the church . and because this scripture is alleadged here so pertinently , and carryes so much of the pregnancy of divine reason in it , i shall take leave to touch upon the particulars of it so far , as they illustrate the purpose of our text-master . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to you , ] who were they ? not the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the multitude spoken of v. . who sate on the sea side to heare him , and to whom he taught 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , many things by parable , v. . but the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 refers to the tenth verse , when he said when he was alone 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , those that were about him with the twelve ; that is , some candidate disciples that had given testimony of their extraordinary sincerity , in resigning themselves up to our lord ; these with the twelve apostles , who were of our lords family , and stood dayly before him , his reverend privy chamber-men , who had dayly access to , and acceptation with him ; to these is the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 intended , for these being the persons that took a welcome confidence to seek solution of their doubts from his infallibility , he assures this priviledge to of knowing plainly what others doe but in shadowes , darkly and imperfectly . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . ] it is given , 't is not gotten by your industry , nor deserved by your excellency , nor purchased by your wealth , but given ; god bestowes his largesses as fruits of his bounty , and tokens of his munificence , and his word to lesson us humility phrases all our receivings as matter of grace and gift , the gift of god is eternal life ; so god loved the word , that he gave his onely begotten son ; if thou knewest the gift of god ; i will give you another comforter ; he will give the holy spirit to them that ask it ; it is god that worketh in us both to will , and to do of his good pleasure ; and every good gift , and every perfect gift cometh from above . these are the scripture phrases , and in this tone does our lord convey the impartment of his indulgence to his disciples above others ; to you 't is given , freely without your merit , fully without his restraint . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to know , ] not onely to heare and to see , by which two senses the intellect has great additions ; but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as much as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to judge and discern , which is the knowledge of a practick understanding , and a discreet judgment , to know so as to be able to make others know our knowledge , to know with assurance and demonstration far beyond the reach and certainty of pure rational evidence ; this the knowledge of faith , the evidence of things not seen , is that which is the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 here , christ had wrought faith in their hearts which drew the from them world to the love and relyance on him ; and he tells them that they had received an ample reward for their service , to wit , the gift to know the mystery of the kingdome of heaven . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; ] the mystery of the kingdom of god , that is a singular expression to a plural sense ; the knowledge of the apostles was of all the necessary matters to their comfort and compleatness , god is one and all that is knowable of him , he teaches his the mystery of ; thus complex is the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 rom. xi . . i would not brethren that you should be ignorant of this mystery , so cor. ii . v. . we speak the wisdome of god in a mystery , ephes. iii. . whereby when ye read , ye may understand my knowledge in the mystery of christ. coloss. ii . . unto all the riches of the full assurance of understanding , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to the acknowledgment of the mystery of god , to you 't is given to know the mystery , that is , god calls you into the mount to a close view of him , when others see in dark and uncertain proportions , and through thick cloathings of divine glory interposing between them and their seeings . when they heare but part , and not the full mind of god in the latitude of an affectionate bounty : ye shall know the mystery of the kingdome of god , non communicandum prophanis , sai●h erasmus , in the sacramental efficacy of it , ye shall have the kingdome of god in the graces of your hearts ; which shall by a mystery of love and goodnesse change and refine you . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but to th●se without . ] this alludes to the people and plebs of followers , so is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , taken , cor. v. , . col. iv . . thess. iv . . and so grotius sayes , st. clem●nt , and the ancient christians held all that were not professed disciples who heard christ non discendae pietatis animo , to profit by his doctrin , and to be in a conformity to it , but as the athenians are sayd to spend their time , acts xvii . . in hearing and telling newes ; these who are only eye servants , and hearers for fashion sake , whom the loaves and the miracles , and the sublimity of our lords divinity , made to follow him as a satisfaction of their curiosity , necessity , or such like self gratification , such who were touched with no zeale , inflam'd with no ardor , ballasted with no judgment in their following of him : our lord feeds only with the crumbs , somewhat these dogs of the flock must have from the lords bounty , and that they have , is but hard food , which has such an incrustation in it as the power of nature will hardly break thorough . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ] all things are propounded in parables , that is , whereas christ to his family speaks familiarly , though he shew these his followers , and as it were fellow-ambassadors , all the treasures of his wisdom and knowledge , though he make them privy to all his secrets , and give them the key of his cabinet , in which are lock'd up his receipts and prescripts , for pleasing god , and following him accurately and acceptably , though these patefactions of the mystery of his eudochy be the childrens bread ; yet to those that are without , all that he discovers to them , is onely in parables . now parables were dark and mysterious speeches , which in few words carryed large senses , and truly profitable ; antiently these were much in use , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a parable is the explication of words of antiquity , the discovery of what wisdom in the beginning of time thought . sampson in holy writ , is first that i remember mentioned to use them , iudg. xiv . . i will now put forth a riddle to you , saith he , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i will deliver my dark saying to you . so the lxx . heb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , comes from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to speak smartly and mystically , as we use to say , with a guard upon our words ; and the learned make it synomous with 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to speak acutely , and with all the dexterity that oratorious emphatiqueness can advance to and arrive at . this form of speech , god not onely in nature taught man , but expressly and by the positivity of a command , put the prophet ezech. upon using , for in the . of his prophecy , v. . god bids him put forth to the son of man a riddle , and speak a parable to the house of israel , where 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to speak a parable parabolically , is read oftner by dominari , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , then by any thing of a soft sense . god would have his prophet speak to them in a form of speech , that had authority and majesty in it , that could command their attention and obedience , like those words of our lord in the gospel , which were by his adversaries testified to be spoken with authority , and not as the scribes . hence it is , that learned men say , adages , sentences , and parables , which principatum in sermone tenent , none used , but those that were eminent , and far above the vulgar , thus our lord jesus here uses parables , to convey to the iews , what he saw they were capable of , and fitted to improve . he knew they were a rough and fierce people , whose ingratitude had obliterated all the memorials of mercy , and that divine favour had not bettered them , but yet they were setled upon their lees , and were under a confirmed obduration ; and therefore , though he could not but propose his love and light to them anew , and usher it into their acceptance , with all advantages of probable success ; yet he sore-saw their obstinacy would reproach his goodness , and thereupon he reveals himself to them in parables ; to tell us that whatever god conceals of himself from us , is in condescension to our weakness , and in punishment of our wantonness . for if there be any scalado to the secrets of god , 't is that of humility and holy fear ; the secrets of the lord are with them that fear him . and if the eyes of men be blinded judicially , 't is penal of their primitive sinful choice ; because they would not see when they might , god has concluded them under a sentence of irreversible blindness , ut videntes non videant . so dangerous obstinacy , against god's conviction and approaches to us , is , that it is just with him to suffer us not to know at all the things of our peace , who will not know it in his time , and by his means , and according to his proportion ; which they do not , that abound in their own sense , and limit not their studies to sobriety ; as the apostle in the first of rom. . and . . cautions , and our text-master after him . sic & tibi , princeps , necessarium non erit mysteria legis angliae longo disciplinatu rimare , sufficiet tibi ut in grammatica tu profecisti , etiam & in legibus proficias . here the chancellor applyes the premises , and makes the prince to apprehend the substance and drift of them , which is , that in every profession , the exact and utmost notions and possibilities of science , are not so usually the labours of men of fortune , and speculative pleasure , as of artists that intend to live by , and to be exact in them ; and that from their progress , fix a reputation and advantage to themselves from them : so in knowledge of the law , though lawyers may toil and travel to apprehend every nicity , and take view of every punctilio in their profession ; yet the prince being so great a personage , and having others in substitution under him , to judge according to the laws , shall not need to search year books , view records , turn over presidents , and toil in the varieties of these many mysterious nicities , that 's not necessary , nor what the chancellour judges correspondent to his state and degree . for as in grammar a man may be competently learned , so as to deserve the name of a grammatian , though he be not able to answer the nice questions tiberius put to the grammarians he delighted in , quae mater hecubae , &c. who was the mother of hecuba , of what account achilles was among virgins , what was the subject matter of the syrens ●otes . yea , though he attain not to the exactness of (a) chrysoloras , (b) lascaris , (c) gaeza , (d) vrbanus , (e) calcondylas minutius , or other later , not inferiour to the best of them , because the excellency of their knowledge , was rather in the curiosities and nicities of words and speech , then in the necessary rules which are indispensably to be known ; and therefore those that know the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and make a right use of them to all the four parts of grammar , and the issues from them , may with credit enough to themselves , and benefit to others , rest contented in their acquirements : so in the law , though the prince be not a littleton , a cook , a dyer , a plowden , yet if he be but acquainted with the terms , language , and maxims of the law , that will be enough to accomplish him , without any further travel into obstrusities of discouragement . now the chancellour urges grammar knowledge , as the introduction to all that is technical ; so quintilian terms it , and he adds , that unless a good foundation be laid in that , all after-superstructures will totter and fall ; and judicious (a) melancthou seconds him , the other studies succeed according to grammars tyrocinie ; for grammar being not well grounded in , all other institutions are to little purpose ; and the use of it being taken , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to teach the first elements : thereby it becomes necessary to youth , and in its progress delightful to the greatest proficiencies of age , prescribing the method of reading and pronunciation , of understanding and explication , of distinction and emendation , of judgment and discrimination ; which are made by varro , and others after him , the parts of practical grammar , under the names of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i say , the chancellour producing this , as the chief strength of his argument , makes me think of that of tully , the great master of language , whom quintilian calls ex actor asperrimus , so rigid to his son , in keeping him to the punctualities of grammar , and not dispensing with any omission in the exactness of it , because he best knew the ill confequences of neglects in it , which wise grammarians are by quintillian instructed to avoid , as that which will render their schollars little credit , or comfort to them . grammaticae vero perfectionem , quae ex etymologia , orthographia , prosodia , & syntaxi quasi ex quatuor fontibus profluit , non s●ecie tenus industi , & tamen grammaticâ sufficienter eruditus es , ità ut meritò grammaticus denomineris . these words are a representation of grammar , as a paradise that is encompassed with a four-fold fountain of delight and variety , as god's eden was with four rivers ; the first whereof is orthography , the art of writing aright : concerning which , claudius dorsquius has most ingenuously , and floridly written large books , and mentions . particular authours , who have preceded him in that argument . that which i shall add , is , that use and custome of time and men famous in their arts and ages , is the standard of rectitude herein : for in eve●y age and authour almost is there somewhat exempt from the common road , which yet is not accounted improper , but obtains by the users fame , and the favour of usage , an adoption into propriety , and an enfranchisement from the bondage of censure , as quinilian grants , and as by the perusal and comparing of priscian and other ancient grammarians with latter ones , frequently appeares : for as fashions in cloaths , and cookery of meats , and figures of building , and words of language , change with men , as their humours or the accidents of their lives , or other contingents rule them ; so does orthography alter , that being practiced by one age , that is distasted by another , as * melancthon in many places of his grammar makes good , and as bo●h a gellius , lipsius , and others make appear . though therefore there be a rule in orthography , which 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , be to be observed , yet where it is capable of correction , and improvement , the nearer writing comes to the tone of speech , the more proper and usefull seems it to me to be , nor are , as i humbly conceive , the omissions of superfluous vowels , or the addition of letters supernumerary , errors or beauties in writing . etymologia , ] as orthography marshals letters into words , so etymologie presents the true notion or notation of letters in their word : the latins call it veriloquium , quò verborum explicatio probatur , &c. etymology the greeks call the explication or the reason , why things are called so as they are : after him , quintilian (a) sayes the same , this , aristotle calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that which carryes the indication of every thing in it ; for names being significative of natures , and conform to somewhat relative to that they are called by , no better a calculate can be made of any thing , then that , which is deducible from the notation of its name . though rualdus takes upon him to censure plutarch , varro , and other exact grammarians upon etymologies by them given , and concludes them vain : yet as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , import much in crittiques , so doth etymology to , which carolus sigonius , and beckman , assisted by all florid suffrages make good ; for though i know that etymologies are not alwayes to be depended upon , but that sometimes the uncertain tye of them occasions losse of truth , as well as of smartnesse of notion , yet for the most part whatever is discoverable either from the greeks or latter historians , concerning places , men , nations , cityes , is much the effect of etymology . this is etymology in the general and large capacity of the word ; yet in grammar , etymology is taken for the ratio cognoscendi casuum discrimina , having relation to all parts of speech , and so it is here to be taken as our chancellour refers it to grammar , and makes it a part of it . the third part of grammar is syntax , the concord and regimental order of parts of speech , whereby they are made to coincide , and mix together in the harmony of propriety and exactnesse , grammarians define it to be the fit connexion and absolute comprehension of perfect speech ; that which does afferre sermoni venustatem gratiámque , gives a grace and majestique order and consent to speech , and indeed this is that part , that rescues speech from barbarism , and that which they call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 disproportion . for syntax making a concord of words each with other in gender , number , case , manner , time , person , introduces convenience the companion of delight , which is an harmony , and reaches the fourth and last part of grammar which is prosodia from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a musical consent , which keeps exactnesse in all notes of speech , whether lowd or low , shrill or soft , whether those that are distinquished by labour and care , either to extend or depresse the sillables , or appear in the production or correption of them , by which , time is regulated . this no lesse necessary to a graceful and good orator and poet is to be diligently observed , as the other parts are ; and whosoever has any competent skill in them , will deserve the name of a well instituted scholer , though not to the proportion of erasmus ( whom crittiques alow the restorer of curious learning , and as it were their second genius : ) but to such a degree as will in a good sense merit the title of a grammarian . consimiliter quoque denominari legista mereberis , si legum principia , & causas , usque ad elementa discipuli more indagaveris . still the chancellour proceeds to animate the prince in his persuit of the law by the example of successe in elementary learning , for as in grammar a man may attain enough to be termed a grammarian , though as i said before , he be none of the first three , so in the law a man may have credit of proficiency , though he be none of the profound ones . indeed to be exact a papinian , a pomponius , a plowden , a dyer requires a whole man in his best expence of time , and with the best of divine blessings on his reading and rumination ; and that no man can reasonably have ambition to attain to , or greive in falling short off , but he that by length of time , eagernesse of study , strength of memory , sharpnesse of conception , approaches it : but to be entred into and have a superficial knowledge of the law by which the student ( suppose the prince ) may have ( as i said before ) insight in the language and common notions of it , will give the prince as great a title to the praise of the knowledge of the lawes of his government , as he shall need to have ; and in having them will abundantly finde himself accomplished ; for as they are the best lawes for any place , that most suit with the disposition of the state and manners of the people that there live , so is it the best knowledg that a prince can acquire , to know gods mercy and indulgence to him in the method and prescripts of the topique lawes of which h● is guardian , and according to which his prudence and piety makes him conformable ; the degrees of which knowledge are not necessary to the latitude of the continent , but to such ascents as are in order to regal enablement . non enim expediet tibi propriâ sensus indagine legis sacramenta rimare , sed relinquatur illa judicibus tuis , & advocatis qui in regno angliae servientes ad legem appellantur , similiter & aliis peritis quos appretisios vulgus denominat . this the chancellour expresses , to take of all doubt in the prince , of more expected from him , then is probable for him to attain to with convenient industry : for though he press upon the prince love to , and skill in the law ; yet 't is not such a skill as is irksome to get , or takes up all his time to arrive at ; 't is not sacramenta legis rimare , but 't is to know what is common and introductional to knowledge of use , and credit of conversation . for though necessary it be to know legis sacramenta , the all that is to be known of the law , the rise , reason progresse , variation , policy , and interest of the law , and what in all these notions is couched , and how these have beneficial operations on the mindes of those that know them , to inable them to every scientifique and practique purpose , yet is this not fit for princes so far to engage them , least it take up their thoughts too strictly , and possesse them too fully to give way for other regal offices to be thought upon and beloved by them . to get a pregnant use of reason and to use it according to the prudence of government tempered by law , which rectifies all violencies ; this is enough for a prince to know when young , the rest that is more perplex and burthensome , the chancellour sayes , relinquetur iudicibus tuis , &c. for the king being a body-politique , as he commands by matter of record ( for rex praecipit , and lex praecipit ; are all one ) and judgeth not propria sensus indagine , but according to the law distributed in his courts ; so he knows in a politique sense the law by his iudges whose iudgements are so politiquely the king 's , that intentionally , and in the virtue of it , it is his . and hence comes the relinquatur judicibus tuis . that is , let others whose particular study and skill it is to intend it , ease you of your burthen , and distribute the laws of which you are head and supream governour to your people : nor is this late and lazy counsel , but grave and great , as old as moses , and given him from iethro his father in law , priest and prince of midian , as an expedient to prevent moses his toyl , and overmuch trouble of himself . for moses having told iethro , how he behaved himself to the people , and in what capacity he was apprehended by them , exod. xviii . . and iethro having wisely weighed the employment , and compared it with the condition and temper of moses his mind and body , does not confirm him in his laborious , and not to be endured toyl , but friendly , and in a way of pathetique kindness reproves him , ver . . the thing that thou doest is not good . not thereby meaning the act of legislation to israel , or his standing in the place of god for israels accommodation , was politically or morally not good : for good it was , that people should be kept in order by a good magistrate , and the prudence of nature dictates this : but in that he says , the thing that thou doest is not good , that is mode & forma , in the way and kind of thy doing it . thou art indeed moses , kind and useful to the people , but cruel to thy self , and to the people too , if what thou doest beyond thy strength , shorten thy life , and leave them , without thee , miserable : so ver . . thou wilt surely wear away , both thou , and this people that is with thee ; for this thing is too heavy for thee , thou art not able to perform it thy self alone . this is the reason of his dehortation and argument , ab incommodo ; 't is injurious to thee first , and then reflectively to israel , therefore cease to do what would be better undone : yet that he may not seem to loosen , what he cannot fasten again , and more usefully he annexes an affirmative direction , how to accomodate himself , and his government by a more mediocrious method , hearken now ( saith he ) unto my voice , i will give thee counsel , and god shall be with thee , &c. ver . , . and after all he adds , ver . . moreover , thou shalt provide thee out of all the people able men , such as fear god , men of truth , hating covetousness , and place such over them , and let them judge the people at all seasons . this scripture is the grand record of judges , both as to their antiquity , qualifications , and power , which is worthy to be written of , because the subjects of it are ( under supream princes , and their great officers of state ) the most considerable in any nation , especially in this of england ; where , though they can not jus dare , make laws , yet they can and do jus dicere , interpret the laws made , according to the true sense thereof . and therefore no wonder , though this scripture be the glass through which the kings of this land have seen the portraictures of those excellent persons , whom they have worthily in all ages , chosen to , and placed in those offices . iudges have been ever very antient in all the civilized world , and those chosen men , not forward to prefer themselves , not men of absalom's spirit , that are swollen with ambition and populacy ; but men picked , and by experience found fit to be deciders of controversies , who will , as the philosopher expresses it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. be so just to divide differences into equal shares , and give every one his portion , as parents do the matter of brawl between their children , and thereby appease them . now because men of brave spirits are set in their proper orbs , when in places of judicature , and then have the opportunity to shew the virtues god and nature have endowed them with ; the holy ghost directs men by the dictation of iethro , approved by moses , to begin with men of virtue , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , our translators render it , alle men , which is seconded by grotius , who makes this ability to extend as the rabbins lesson him ; and the notation of the word will bear it to all kind of ability , of body , mind , fortune , in which sense we call usually those that excel , able men , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; so the lxxii men of courage , that will go through stitch with the work of justice , that will not fear the face of any he , that offends , and the better to keep courage , ( besides innocency and the fear of god , which makes men bold and brave , ) fortune and estate is a great muniment to a judge , and rabbi selom , as munster quotes him , makes this able men to be meant of rich men , able to subsist themselves and their charges , without dependence , flattery , and the acceptation of mens persons in judgment ; which truly is much ( no doubt ) of what the sense of iethro , and of what the holy ghost means in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for though it be true , that integrity will preserve a man from desires , yea and admissions of corruption , yet it has a shrewd assailant , when need or shortness of tether beleaguereth it . for though a vicious mind will never permit a rich man to be just or good , where he is tempted to be otherwise by the vice he dotes on ; yet 't is probable the fear of censure , fine , and imprisonment , may awe him that has an estate solvable in that case , from attempting , or accepting , what on other grounds he would be more inclinable to . and since that of budaeus is true , ad judicem ire , ad jus est ire , &c. the iudge addressed to , is an address to the law , since he is the living law. it concerns princes , whose all power within their jurisdictions legally is , to be exact in their delegations to meet persons , men of ability in wisdom , courage , fortune . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , fearing the lord , ] this is added , as that which knits the knot of the former abilities so fast , that it will be indissolvable . hieronimus procarius ( whom tiraquell terms a most knowing man in the law , and expert in government ) has observed , that there are four things that subvert justice ; hatred , favour , bribery , fear ; and against all these , this fear of god is a preservative ; for it will put a man upon hatred of every evil way , and observation of god's eye intent on him : and his judgment impendent on his wandring , it will make a man watch and ward his ways , that he offend not in any defect of duty . for when the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is put absolutely , as here it is , the learned say it signifies curare , psal. xlix . . be not thou afraid , when any one is made rich , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , iethro's meaning then is , choose men fearing god , that is , that are solicitous , and thoughtful to do their duty , in obedience to his declared will , and according to the notions they have of his pure nature , and provident appointment of magistracy , to preside over men for their good . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , men of truth , ] who having knowledge , conscience , and sincerity , which king iames declared requisite in judges , dare to do nothing unworthy their places , or the laws prescript . for men of truth are opposed to loose & lewd men , in whom there is no thing but falshood , and to whose words there is no heed to be given . from this censure , as too great a blemish for innocence to bear , the sons of iacob sought to free themselves ; for when they were charged to be spyes , and ioseph , in gen. xlii . . appoints them to discover 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whether truth were with them , they joyn issue upon his own terms , and having ver . . alleadged , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , recti nos , and proceeded in their justification , ver . , , , . they avoid the just reward of perfidie , which those corrupt judges in herodotus had , one of which cambyses caused to be slead , and his skin to be set over the judgment seat , and the other sandoces by name was by darius suitably proceeded against . for since the law of god commands neither to look upon the person of the poor or of the rich in judgement , but to fear the lord and his punishment : the laws of all religions and governments , look upon irrectitude in a judge , as that which can have no penalty transcending the demerit of it , because it is an abusion of god's power , and the sovereigns grace , while both those royal purposes direct the use of that expedient to the divine end of righting wrong , and animating virtue , it follows 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , hating covetousness : the greeks render this by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is a word , importing desire of having plenty above others . the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , signifies all manner of evil desire , be it by what means it will , or in what degree it can , whether the way to accomplish it be calumny , force , flattery , or which way soever , that is inordinate . and because covetousness obstructs every good sincere action , which is nor subsidiary to some advantage of the covetous person , as is e●vdent in many examples , but especially in henry the seventh , who had a desire to saint henry the sixth , but that the pope asked too much money for his ( canonization ; which henry ) the seventh not willing to part with , omitted henry the sixth's canonization as loving money better then the honour of his predecessours memory and piety ; therefore god by his prophet habbakuk pronounces a woe to him that covets an evil covetousness that is , vae qui congregat avaritiam malam , saith s. ierom. so prov. xv . . so exod. . . this very verse of the text is understood by the learned , to be meant of those who follow not the desires of the world nor are unlawfully acted by the love of riches or power , but use them , and endeavour to possess them so far onely , as they are comforts of life , and may be illustrations of virtue . and thus to limit covetousness , being to ●ate it , is to avoid the judgments threatned against the intemperance of it , isa. lvii . . ier. xxii . ier. li. . mic. iv . . in all which places , the very same sin , by the same name , is most highly menaced , and the great severity of god in the wasting of nations , attributed to it , as the procuring and meritorious cause of it . judges then being by the prescript of god to be thus qualified , they that are such , and so endowed , ought to have high value from the people , as they have received the token of it in their trust from the king ; and since this place is so precise in the requiries of a judge , and the kings of this land have ever been so careful , to promote thereto persons , not onely in presumption , but in very deed so qualified . and in regard our now most gracious soveraign , whom god long preserve , our pattern of virtue , and our parent of peace and piety , has fitted the benches of law with such learned , serious , and renowned judges , as answer the best of times , and the most renowned of their ancestry . not those excepted in edw. the third's time ; of whose chief justice (a) thirning , . h. . gives so honourable testimony ; which truly i write not to flatter , for i despise it , as beneath the candor of a christian , and the honour of a gentleman ; but to give my humble attestation to their super-excellent merit : since i say so grave , so wise , so worthy men , are now the king's judges , i thought fit to illustrate this place , which they are so genuine a comment upon , by those few notes which precede ; beseeching god , that they that judge the people for god , and under the king , may so continue , ever to demean themselves , that when they be superseded by death , they may give up their accounts with joy , and not with grief . this considered , the chancellour may well advise the king , for the main of the laws knowledge , to refer himself iudicibus . for as the sea abounds in water , the sun in light , the earth with atoms , and no vacuity is in nature ; but god has compleated the world to all intents of providence , in the circumaction of his purpose , and the sustentation of his creatures ; so are the judges , as men of years , reading , and experience , so plenarily , and critically versed in the law , that there shall need to be no doubt , but that with our saviour's good man , out of the good treasures of their hearts , they will bring forth treasure old and new , that is , be able to give solutions to all doubts , upon old and new laws , and that not according to mens conceits , but according to the true meaning of the law , as interpreters of the law , as those that find out the reason of the law by books and presidents . so true is that of king iames the wife , though the common-law be a mystery and a skill best known unto their selves ( speaking to the judges ) yet if their interpretation be such , as other men which have logick and common sense , understand not the reason , i will never trust such an interpretation . so he . and , if in the multitude of counsellours there is safety , as the wise-man's words are , and the judges many in number , and learned in nature , are serviceable to the king to counsel him as their lord and master , and according to law and justice , which he in the execution of the law solemnly has sworn them to , and to perform which , they are upon penalty of god's curse , and the laws impartiality , bound to observe ; the graviora legis may well be left to them ; for in this case , that rule is true , quifacit per alium facit per se , and the king that thus knows the law by them , may in a good politique sense be said to know the law as becomes him , which is part of the sense of doctina principi co●grua , often spoken of by the chancellour . but here no more of judges , because i shall have more occasion to discourse of them in the chapter . et advocatis , qui in regno angliae servientes ad legem appellantur , similiter & alii● peritis quos apprentisios vulgus denominat . this advocatus , is a name of office and employment , comprehending all those personal honorary distinctions of men , which are gradual in the law ; for though every man that is called to the bar , and has read , be an advocate , yet every advocate is not a serjeant , nor an apprentice of the law : ( for under those names are comprehended the choice veteran eldest sons of that science , who do propriè & quato modo advocare , ) when others , advocates in name sometimes , are nothing less in deed . an advocate then is a patron , who undertakes the cause of men in judgment , and pleads the cause juridiquely before the judges that are to determine and judge of it , and he acts divers parts , that of an oratour in proper wording it , that of an attorney , in diligently watching and observing , that no advantage be taken against the cause ; that of a lawyer , in producing arguments from the text , to maintain and support it . now , though in all causes , one advocate at least is necessary , no court ordinarily allowing parties to plead their own causes , especially in civil causes : nor is it for their advantage so to do , who being ignorant in the laws , may by that pragmatiqueness injure their right in the judgment of the court upon it : yet in dubious cāses , and those of more then ordinary consequence , antiquity followed now adays , allowed two or more advocates , that by their joint counsel and assistance , they might the better go through what they have undertaken with solidity and success . these advocates so usefull and frequently imployed , the law allowed great dignities and p●iviledges to them , ludovicus bologninus has counted them to be . grand ones , besides the many additional , which is confirmed by the glosse on the text , which sayes , esse advocatum , honor est ; and our law capacitating them to great offices and honours , thereby still keeps up the rate and honour of advocation , yea so long as our lord iesus is owned to be the advocate with the father : the calling and honour of advocacie , as 't is the prestation of good offices of charity and beneficencie to men , will be in high repute ; but of this i shall speak more on the chapter . iudices , & advocati regis , qui in regno angliae servientes ad legem appellantur , these fleta terms milites & clericos locum regis tenentes in anglia : which alluded to the use of making clergy men antiently , as well as lay-men , not onely great officers in the state , but also judges in the courts of law in which the kings lieutenancy resides , who therefore were called locum tenentes , because they did locum regis in judicio tenere , the office of judicature being originally and fontally the king 's , and his judges onely by delegation , as commissionated to , and intrusted by him with that dispensatory power , so that serviens ad legem is no term of diminution or base office , but of hunour and dignity ; that as in ●eraldry the term esquire in latin ( serviens aswel as armiger ) is given to the best and bravest of men under the degree of baronage or knighthood , as a token of their portage of the arms and ensigns of honour , which they , or those whom they descended from , personaldly bore in war before the princes and peers , they in that way officiated to : so is the term serjeant in the law 's import , the title of one who does attend the service of the king and his people in study and profession of the law , and by carrying the emblems of his proficiency in his habit , supposing a judicious head and heart , uttering his acquisitions with a ready and well-languaged tongue ; and the not onely common civility of the nation attributes dignity to him , but the king , the fountain and soveraign of honour , dignifies him , as one of those patricii , out of whom the senatours , the judges are chosen , so sayes sir edward cook , ex servinentibus his ce tanquam è seminario iustitia , &c. from amongst these serjeants , as the seminary of iustice , the iudges are called : for none but a serjeant at law can be either iudge of any of the benches , or cheif baron of the exchequer , or claim place in either of the houses of serjeants ; because those inns are properly the lodges of serjeants , not of iudges . so that oracle of the law , which learned mr. selden confirms , and seconds in his preface before the scriptores anglici , p. . serjeant at the law then is a title state and dignity of great respect , so that it is counted next degree to a knight ; yea , there are many arguments from the writ of his creation , which sir edward cook directs me from him to collect for the honour of the serjeant : that he is no sponte nascens , nor self-creatour , but arises from the womb of the morning honour , the king majested , à rege de auisamento concilii inde evocatur ; and so is a fruit not onely of the king's affection , but of his choise by counsel , secondly , 't is non nutu capitis , nec ictu gladii , nec verbo oris , sed brevi sigillato , but by his writ somewhat issuant from his politique wisdom , and of kin to matter of record , a dignity in nature of a patent , brevi regio , by a writ of summons . thirdly , the writ is plural in the expression of the person serjeanted , vocabulo vobis dignitatis argumento singulari , as if the king in the honour did convey and intend him some participation in the rays of eminency with him . fourthly , he is called ad statum & gradum , which , the statutes not of h. . c. . but of e. . c. , h. . c. . doallow and insert them in , as if the king incorporated them into the tyrociny of nobility ; these and such like parts of their dignitye is by that worthy author observed : nor had they these without great duties expected from , and performed by them , as narratores and counters , for ( so they were anciently called ) and they did stand as patrons to the people throughout all their causes , to plead and defend them according to equity and right . the mirrour sayes also , chescun serjeant est chargeable , &c. every serjeant is bound by oath not to defend wrong or falshood , if he know it so to be , nor assist his glyent any longer then he perceives his cause is just : the same fleta writes , with this addition , under pain of imprisoument a year and a day &c. by which wisdom of our law , so advising the king to imitate the athenian areopagus , the band of serjeants have been the learned brother-hood whence the brave judges have ever since been chosen . the kings of this land being by their learned chancellours , and chief justices advised of the worths of men , though their own modestyes consented to their temporary obscuring of themselves . in the h. . martyn , babington , pool , westbury , iune , rolf , were called by the king into parliament for refusing to take the state and degree of serjeant , to which they had been by writt called , which they persisted to refuse , as counting themselves not fit for the state and degree , but in the end with much adoe , they took it , and divers of them ( saith sir edward cook ) afterwards did worthyly serve the king in the principal offices of the law. and these being serjeants counters , so called , because they recite and count in actions appointed by the judges before them at the bar , are distinguished from other serjeants , which are of lesse honourable degree then these at the law are . and though these are the prime of those periti in legibus mentioned in our text ; yet there are others who passe under the name of apprentises at the law , who yet are not learners and novices , but antesignani standard-bearers of science ; no dupondii , youths entred into study , of no more honour in their art , then those we proverbially call two penny lads , pupils who are under discipline and coverture , freshmen ; no students of years standing , which the digest terms 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ( quae vox solutores significat , importing a proficiency in explicating and resolving the knots and difficulties of the law terms ; ) but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , those who are compleat apprehenders of the law , and want no competent perfection in the knowledge of it . these who have been near twenty years or above at the inns of court , and done all the exercises that the house , of which they are , requires ; and having read openly before the society upon some statute , or point of law , as the probation of their judgement , and acquisition in their profession , by lawyers are called apprentises : and these so grave , so learned , are often mentioned in year-books , and their judgements and arguments therein much to be valued ; yea when they have written any thing in the law , they have subscribed their names as apprentises of the law. and though in e. . time anno . attourneys are named before apprentises , after which fleta so also marshals them , yet are those attourneys not to be named in a day with apprentises ( unlesse attourneys were more then now adayes they are , which i know not , ) for sir edward cook , terms these apprentises sages gents , intended in the statue of e. . c. . and so declares them in his preface to the tenth report . and the learned selden produces a notable record out of the tower , wherein king e. . directed his judges to select a certain number of these apprentises to attend the king's courts , who perhaps were hence called apprentisii ad b arras , of which , andrew horn makes menion in those ridiculous verses , as mr. selden calls them before his mirróur . these apprentises then of the law were men of note , as not onely appears by the forementioned instances , but from their wonted separation from the inns of court , ( where they spent their younger studyes ) and their locations in hostles proper to them . for as the serjeants had their inns , so had the apprentises theirs , tavies-inn in holborn was one of them ( and others no doubt they had , though the memory of them is lost ) yea and as is concludable from the roll of h. . when that thing , meaning to make good his title , and fearing least the lawyers in parliament should obstruct it , directs writs to the sheriffs of all the counties , that they should not suffer any apprentise , or other learned man in the law , to be returned to parliament . hence saith the judicious sir hen. spelman . this parliament was called , the lack-learning parliament , and that convention which put a hard yoak upon the church . whereas then our chancellour says , quos vulgus apprentisios denominat , he means not to disclaim the term apprentise ( as not a word of legal honour , but a nick-name originated from the mistakes or malevolence of the rabble ) but he uses the phrase vulgus , to shew the community of its approbation , and the willingness of the most knowing men in that profession , to derogate from themselves , so they might arrogate the law ; and to lesson also men to put a value on lawyers , whose travel and pains in the abstruse study of the common-law , is such , that when they have studied as long as their bodies will endure , or their eyes assist them ; yet after all , do not arrive to be doctors , professours , exprofessours ; but in the most accumulate advances are but apprentisii & servientes ad legem . melius enim per alios , quàm per teipsum judicia reddes , quòd proprio ore nullus regum angliae judicium proferre usus est . this clause resolves two doubts ; first , why the king need not legis sacramenta rimare , not toil himself in the intricacies of the law , but leave those to the judges , because it will be better to do it by others , then by himself . secondly , why more convenient and better , because so used to be done by the kings of this land , whose practice was upon weighty grounds : for melius here is not strictly and grammatically to be taken , for then it would have a sense of diminution , and reflect on the prince , as if any thing might be better done , then he that ( quâ prince , ) is perfection it self , and cannot be out done ; because he is the fountain of politique action , and judgments cannot be presumed to be justlyer judged , then by the prince , who is justice it self , and by his accession to the crown , is under no presumption of defect . but melius is to be taken for aequius ; so tully . . offic. . convenientius , that is , it will be more comely , in relation to their state as a king , and proportionate to the indifferent and equitable nature of their justice , to determine matters by judges , men unconcerned in the losse and gain of causes , then by their selves , to whom in all capital causes , the forfeitures of peccants escheats ; and in causes between them and their subjects , they may sometimes be judge , who are parties . yea , and melius , because also their serjeants and judges , being more versed in the mysterious parts of the law , are more likely to extricate the truth , perplexed in the heats and covins of contention : this i take to be somewhat of our chancellours mind in melius . thus authours expound melius , anima melior in virgil ; servius terms aptior mens , melior . donatus renders bona & tolerabilis , and natura bona , by plena , magna , pinguis . melior pars diei , by major & prima pars ; and tully coupling melius with aequius , as he does , makes the sense plain , according to the strictness of oratory , as well as law. per alios , quum per te ipsun● judicium reddes ] all judgment is the kings , though by the dispensation of the judges ; and of old , kings and chief magistrates did personally decide cases , and dispensed laws , as it is evident in the case of the judges , and solomon , and all kings , both in holy and prophane story ; philip of macedon , demetrius , poliorcetes , augustus casar , claudius , charles the great , and charles the eighth , as is confirmed by i lipsius , in monitis politicis , c. . p. . and in england , the sons of the kings of this land have sate personally in the courts of law ; as by name , e. . secundo regni . and prince arthur rode from shire to shire in circuits , to hear and determine causes depending between man and man. and others of them have by charter exempted certain persons from being drawn into judgment before any persons , nisi coram nobis , vel capitali justitia , which seems to reserve power to themselves judicially to judge . yea , though lipsius is positive , decere , expedire , debere , that kings ought , and may personally hear and judge causes : yet the more agreed rule of our kings legal pleasure and practice , is to judge in curia by his judges , whose authority his personal presence in courts ( i humbly conceive ) does not dissolve , though in other cases the rule be good , the power of the less ceases , in the presence of the greater . now this the king has yielded to , and established in the practice of law , that all passion and prejudice to justice might be avoided ; and that the judges may be indempnified , they are sworn to do justice according to law , without consideration of any thing in obstruction of it ; though prudence dictate to them , in arduous cases , to consult with the prince , qui ipsis de jure respondere solent , as the civilians say ; and in matters of state and concernment to the crown , prius consulere quàm constituere , & declarare . so did that wise monarch king iames admonish his judges to do ; incroach not ( quoth he ) upon the prerogatives of the crown ; if there fall out a question that concerns my prerogative , or mystery of state , deal not with it , till you consult with the king and his councel , or both ; for they are transcendent matters , and must not be slubberly carryed with over-rash wilfulness , for so may ye wound the king through the sides of a private person . so that oracle . and so have , and do the wise judges always ; that so the king being rightly informed of the nature of causes , may voluntarily , as the soveraign of our national justice , honour justice above himself ; if those can be imagined distinct which the law seems to me to have made one and indivisible . and this blessed effect of majestique condescension to humble and loyal subjection , have the subjects of england experimentally found from their princes almost always : not onely edward the first manifested it in the statute , de iudaismo , whereby though the kings of england had from h. . to e. . li. s. d. profit to their chequers , when the ounce of silver was but d. yet edward the first , though he had a great need of supply by money , his expences being great , did , for the honour of god , and ease of his subjects , banish the iews , and all their usury , by the statute in the eighteenth of his reign ; and edward the first , in the statute of treason of the . regni , c. . but also the late martyred king charles the first , of blessed memory , in sundry acts of grace by some of his graceless subjects abused . and above all , our now royal and renowned soveraign , has to a wonder , and an eternal obligation of his subjects admiration and gratitude , made appear in that never to be forgotten act of oblivion and indempnity , whereby all his subjects not excepted therein , are remitted all penalties both for life and estate : both which , thousands in the nation , bad in rigour of law forfeited to him . this shall be written , that the generations to come may know it , and the people that are yet unborn may praise the lord for those admirable restraints of anger and indignation in him . the consideration of which magninimity , and royal fidelity , as it entitles his majesty to the superlative love , and resolute assistance of his subjects , cordially as well as politiquely his , and to the blessing of god , who onely fortunateth all undertakings : so does it censure to hell , as ingrate and horridly inhumane , all thoughts of treachery , or malevolence to his royal person , posterity , and successours in government : the punishments of which , if any should be so wicked and wretched to deserve , not onely will be greivous in the legal terrours , but in the regrets , that conscience will give the deserved sufferers . my prayer shall be , that god would make us fear him , and honour the king , and not meddle with them that are given to change ; ever remembring that power is best and safest , when in its proper channel and centre . and that god , whose vicars kings are , has given that greatness of mind to them , that as they are above mean thoughts , so will they not alloy the glory of their thrones , by actions of narrowness to their subjects . lipsius has quoted rare professions of piety , and love to subjects from emperours , tiberius , trajan , vespasian , henry son to frederick . to which may be added the words of that late martyr'd majesty , those victories are still miserable , that leave our sins unsubdued , flushing our pride , and animating to continue injuries ; nor do i desire any man shouldbe further subject to me , then all of us may be subject to god. tamen sua sunt omnia judicia regni , licèt per alios ipsa reddantur ; sicut & judicum omnium sententias josaphat asseruit esse judicia dei. here the text not onely asserts the kings propriety in the land , people , strength , and law of england , but confirms the judgment of the judges appointed by the king , to be the king's judgment from a text of holy writ , chron. . . wherein iehosaphat , a famous king of iudah , charging his judges to be exact , calls their judgment , the iudgment of god. for as the judgment of iehosopat's judges , is called the judgment of god , because it was in execution of the design of god's justice in the world , and by the authority of the magistrate , the minister of god ; who being set by god to govern , makes by his delegation , the just actions judicial of his judges , the judgment of god , because judged by power derived from god : so the judgments pronounced by the king's judges in his courts , are the king's judgments , because they are from those benches that he erects , and protects to that purpose , and from those persons that he commissions so to do . for causa causae est causa causaeti . if the king empower any man to act for him , his action is in reason and reputation , while within the verge of his commission , the kings ; and the contumacy that is expressed against that power or person , the king and the law expounds as done against the king. and hereupon , as the person and palace of the king is to have no force expressed in it , under grievous penalties ; so the courts of law , in which the king's judges sit , are to have no action of violence or ryot expressed in the view of them sitting . he that strikes a judge sitting on judgment , or that strikes any other , the court seeing , and sitting , ioseth his hand , and shall suffer fine and imprisonment at the king's pleasure . he that appears not at the summons of the court , is in contempt of the king , and may be out-lawed , and so be out of the king's protection . these , and infinite such like cases , argue the judges in the king's courts to be ministers of the kings , and the actions they legally do , authorized by him . and hence , in reference to the judges , king iames of blessed memory told the two houses of parliament their dignity , in those words ; beware to disgrace either my proclamation , or the iudges , who when the parliament is done , have power to try your lands and lives ; for so you may disgrace both your king , and your laws . quare tu , princeps serenissime , parvo tempore , parvâ industriâ sufficienter eris in legibus angliae eruditus , dummodo aedejus apprehensionem confer as animum tuum . this inference is very proper from the premised matter : for since the king 's of england are furnished with learned judges , serjeants , apprentices , and other men of learning in the law , whose life is spent in study of the anatomy of the law ; and since they , how well versed soever in it , or any part of it , are obliged to serve the king by their counsel , and otherwise with such their parts , whereby the king is politiquely compleated in all points of his regal function . since these things thus are , they do excuse the king from that pains and care to understand the legal distribution of justice in his person ; which , but for these supplements , he must have held himself obliged to : so that now , all the king is in this case to do , is , to give his mind to love and comprobate the law , and in that delightful humour to please himself , such minutes as he can spare from action and pleasure . for though a serjeant at law , whose glory and grace it is , vt serviendo discat , & discendo alios perdiscat , as men of that degree did at their parvise ; of which chaucer speaks , a serjeant at law , wary and wise , that often had been at the pervise . though i say such men are to know whatever can be known in the law , because it is their profession , and they do illud agere ; yet the princes work being that of an architect , not a labourer , calls him accomplished , when able to oversee others due discharge of their duties . to do which , he is presumed to be knowing and intent ; and those will direct him so well to choose judges , that having chosen them , he shall have no cause to repent his choice . sufficient●r eruditus then is to be taken restrainedly , not for a sufficiency of possibility , the how much a prince may attain to ; but a sufficiency of convenience , and creditable use , such a learning as may suit with the state , dignity , and opportunity of a prince . thus vlpian expresses sufficienter , sufficienter alere & vistire debet secundum or dinem & dignitatem mancipiorum . for as saint paul was a most learned preacher of christ , even to the conviction of ethnique philosophers , who had all the art of evasion and dirision of his ministry imaginable , which yet he through the grace given him overcame , though he professes , he was not sufficient for these things ; and as many men are sufficiently learned lawyers , that arrive not at sulpitium his heigth , whom budaeus makes the phoenix of his profession , and more a fountain of low , then an age of lawyers put together . so sufficiently quaint oratours , though they have not what tully requires in an orator , the subtlety of logicians , the wisdom of philosophers , the words of poets , the memory of lawyers , the voice of tragediaens , the gesture of the most excellent persons in all pr●fissiens . and a man may be sufficiently a man , having all the integral parts of manhood , and being able conveniently to expresse them , though he be not a goliah or a sampson for strength . besides your education , it is necessary you delight in reading , and seeking the knowledge of all lawfull things , but with these two restrictions : first , that ye chuse idle houres for it , not interrupting thereby the discharge of your office ; and next , that ye study not for knowledge nakedly : but that your principal end be , to make you able thereby to use your office , so was the counsel of king iames to his son . so a prince may be sufficienter eruditus in legibus , that does give his minde to skill the language , read the lesser and more methodique authors of the law , and by conversation with the practise and enactions of courts , dispose his minde to enquire into them . in short , doctor and student , the sour parts of the i●stitutes and the statutes , which are to be read , parvo tempore & parvâ industriâ , will instruct a prince so , as to make him , in legibus sufficienter eruditus , but these authors being written long since , our text-master his suficienter eruditus may be supposed relative to another method . the iura coronae , the rights of the crown , the brevia originalia , which being grounded upon some original law , for the violation of which , that is the way to bring the offence to tryal and judgment : the maxims of the common law , which are most obvious , and the statutes , these in any competent measure read and understood , will make the prince sufficienter eruditus in legibus : for it will declare him a friend to justice , and one that so highly promotes it , that he yeilds himself a servant to it , and that diogenes was wont to call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a pleasure , and as it were sufficiency or perfection of life . not onely as he does judge and distribute the law by his judges , who are oracles in this learning , but if lipsius a most learned man , may be the judge , in all causes upon the account of these , and beneath these abilityes , da simplicem , da prebum , &c. let but the prince set himself in the sinserity of his heart , and with the utmost skill of his prudent attainments , to do his judicial duty , and i dare say , ( so are his words ) there will rarely be any cause , wherein he will not finde out the truth , or near the truth ; yea , god often inspires princes with wisdom beyond other men , when he sees their hearts are set to serve him conscionably in their office , according to that of the wise man , a divine sentence is in the lips of the king , therefore he shall not err in iudgement , thus lipsius . the consideration of law and justice as the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which the philososopher makes the rule of every one ; and which is onely to be distributed by the prince and his commissioners , so wrought upon king iames of happy memory , that though he came not to the courts of westminster , yet he , in a very great presence in the star-chamber , did wisely and christianly declare himself a king of parts as well as power , and of piety as well as of both , or either : for there , he not onely shewed what he understood , his duty to his people , and what his desert of the people ; but he also gave such a charge to all his judges , and other ministers , concerning all the points and parts of their duty , that 't is hard to say wherein they could possibly err , if they composed themselves onely to the conduct and observance of those rules ; which makes me take notice of that passage of baldus , where writing of the judge , his words are non aliter judicaturus , &c. that the iudge is for his wisdem and lustre of iustice so to manifest himself to the honour of his trust , and dignity , as the prince himself is to do● , if he were actually in the seat of iudgment ; whence i think i may properly infer , that the law supposes a king to be sufficiently wise and worthy to endeavour his accomplishment in all the parts of his regal duty , that he may appear to be a pattern as well as precept to all his judges . sufficienter eruditus then , must have a soft and sober sense allowed it , for in the latitude of the notion , no mere man , no prince but solomon ever had sufficient learning in the laws of nature and government ; for fince art is long , and the well out of which truth is fetched , very deep , and the life of man , though inched out to the utmost period of david's computation , be a long time , compared to lesser portions of living ; yet in order to art , and the expatiations of art to be inquired into in that time : nay , though the whole time should be spent in the one onely study of the laws , the student would notwithstanding be o're-taken , before he were an attainer to his meta ultima . for if consideration be had , how many years of life are lost in childhood , in youth , in mistake , which we are to rescue our selves from and retrograde , what casualties of sickness , necessities of life , pleasure , friends , avocate and steal away time , what treacheriés , unexperience in the conduct of studies and converse , betrays us to ; and how various the notions of men are in the passes of them through the several ages of their life . these , and sundry other leaks to the vigour and virtue of study , and mens accomplishment by it , proclaim sufficienter eruditus in the latitude and utmost sense of attainment and possibility , not to be here meant , because that cannot be gained parvo tempore , or parvâ industriâ , as this sufficienter eruditus proposed by our chancellour is said to be . the true notion then of it is , that which i said before , then the prince is sufficenter eruditus in legibus , when he knows the key and language , the reason and phrase , the rule and maxime , the more useful and common laws called the statutes ; because by this knowledge he shall be able to know his own , his ministers , his subjects duties ; and this is sufficient learning in the law for a prince ; nay , this is able to make him as an angel of god to discern between good and evil . for as in souldiery , he may be said to be sufficienter eruditus , who knows all parts of souldiery , horse and foot , field and garrison , the laws of command and obedience , the use of all machins , the enemy he is to fight with , the ground he is to fight upon , the forces he is to fight by ; and so in other arts and mysteries , as i say , an artist thus able to perform his undertaking , may be said to be sufficienter eruditus in it , though he be not an hannibal , a porphyrie , an aristotle , a drake : so he may be a prince sufficienter eruditus in legibus , who does know what he himself is , and other under him ought to do according to the laws of his government , of which he is the maintainer and defender . for as budaeus says of tully , quid non explicare potuisset illa vis ingenii , &c. what cannot so rare an apprehension make plain , what so quaint a tongue express , what so wise a heart conceive , as resides in a prince , to whom the laws of his government is pleasing , and the study of them his delight . parvo tempore , & parvâ industriâ . this is that which in another place he expounds by anno uno , a small time to so gainful a purpose : but i suppose the chancellour either tols him on by an engagement of facility and possibility of attainment , a harmless trepanning to study of the law , or else looks upon his princely wit , which the greek call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which makes a man , as socrates was said to be , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , dull to nothing he was set upon : but as pythagoras is by apuleius written of , supra captum hominis augustior , capacious above the proportion of man , as that which will accelerate , and bring about that in a short , which ordinarily is a long time in operation and circumduction . this he concluding , may be justified in his prefixing sufficienter eruditus to parvo tempore & parvâ industriâ . for well did the chancellour know , both what was sufficient law-learning for a prince , and how to perfect youth in that . for he had , as pitsaeus tells us , instituted many young noblemen in the elements of law : and therefore being himself so learned , and having instructed others in the incoate and necessary knowledge of the law. i conclude him able to perform his promise in instructing the prince , parvo tempore , parvâ industriâ ; brief and curt methods being useful to learners , when to know the law , as ars aequi & boni , that is , to set the mind upon the law with might and main , proprium est juris consultorum institutum , is the proper breeding of lawyers , and that which they are to intend . the chancellours sense then is , that intentness and addiction to any thing , will perfect that in short space , which otherwise will be more tedious in compassing . as the fish aphia ( which gave occasion to the adage , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) is no sooner shewed the fire , but it is broyled , being naturally of so unctious a nature , that it yields to the warmth of the fire , and takes its impression straightways : so does some mens wits capacitate them to any thing that is imparted to them ; which is the meaning of parvo tempore , & parvâ industriâ . though then ingenuity in the prince , and method in the chancellour , may make the prince's learning in the law , not so long in the time , nor so laborious in the toil of attainment , as otherwise it would be : yet time and industry there must be in some measure , ere ever there be attainment of learning the fruits of god's blessing on the prince's time and industry , which two time and industry are fit to be considered . time is the measure of life , and the opportunity to every action : pythagoraes called it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the globe of a moving body ; plato , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the moveable image of eternity ; eratosthenes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the motion of the sun ; the philosopher , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the motion of the vniverse , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the sphear of all motion . suidas renders it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , all one with aristotle . and solomon above all says , 't is that which is given by god , as the punct in which we are to perfect every duty , and in which the glory due to his sovereignty is returned to him by every created being . from which , because the time of action is that of light , which we call day ; the english word , for present time , day ; to day if ye will hear his voice , is derived from the hebrew 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is one word they express time by , which 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , they make to have the sense of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sufficit , as accounting it that which answereth every purpose under the sun ; unto which , perhaps , our lord alluded in those words , sufficient to the day , is the sorrow thereof . the hebrews also calls time , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which in the root signifies , to pervert ; insinuating , that the prevarication of man distorts the provision of god , while he gives us time to serve him in , and we turn it to his disservice : though i know , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , has also a sense of preparation and seasoning , which the greek ' render by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . so eccles. iii. . hag. i. . iudg. xxi . . eccles. ix . . there is also , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in the holy language , for time , as it is the series & ordo , of things and actions : so esth. ii . . cant. ii . . sundry other words have they for time . time then being either past , present , or to come , though known to god , yet is only ours in its present punct . that which is past , is gone ; that which is to come , is uncertain ; the present is onely ours , and that 's parvum tempus . thou hast made my age as a span long : every man therefore in his best estate is altogether vanity , saith king david . industry that puts upon time its due burthen , and improves it to its utmost fertility . this is that which provokes men to labour and motion with chearfulness and placidity , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , says suidas , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; to be industrious , is to be carryed to any thing with an indignation against whatever hinders and obstructs it . this was that which carryed alexander above his discouragements to his conquest . niciaes was famous for this ; for by his intentness on his study , he grew so immemorative , that he was wont to ask his servants , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whether he had washed , or eaten . many are the promises and praises of industry : the diligent hand maketh rich ; seest thou a man diligent in his business . he shall sit among princes . both solomon's aphorisms . and the son of syrach counsels , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , be diligent , and no disease shall hurt thee . the fathers appropriate much to industry ; saint chrysostome advises to it , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that we fall not short of eternal good things , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the time of labour is but short , and the reward in rest eternity : the bee is but a small bird , but the parent of all sweetness , she alone brings honey . so is industry , but a small time to be expressed in , but always to be rewarded in the fruit of it . so true is that of democritus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. men attain to great and good things onely by industry . and therefore the hebrew word is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , coming from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , signifying , cogitare , computare , ratiocinari , implyes the intention of the whole man , which solomon calls , doing with all our might , that is , actuating our reason to design , and seconding it by the subserviency of sense , leaving no stone unturned , to effectuate our projection . this industry is made up as it were of joints and ligaments , of strength in order to action . rabbi david terms it , ars supputandi , and arithmetica philosophia ; because in it , men do bring all the ref●acted particles of their toil and search into a mass , to make it more conspicuous , and to be regarded as the wise builder in luke xiv . . who before he layes the foundation of his structure , sitteth down , and counteth the cost . the hebrews knowing the consequence of this industry , have according to the variety of its nature several words to expresse it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a word of large extent , primarily denoting riches and substance , but translated by industry , because thereby riches and substance is gotten . it also signifies pecus , angelus , nuncius ; because as the eastern riches consisted in cattle , and those nourished to increase by industry , as was remarkable in iacob ; and as an angel is the guardian of man , and watches over him by god's command , to keep evil from him ; so industry is the probable means to keep the woolf from the door , to prevent poverty and want , which ever follows idleness , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , also is a word for industry , and that denotes such a vigilancy , as is that of a commander , who keeps a garrison in an enemies countrey , he is ever on his charge , diligent to consider every useful occurrent , and to improve it , no person , no moment is out of his eye , but his thought is bufied about it , and careful to make it commodious to his purpose . this word is opposed to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifie incogitancy , and vain levity ; such as the holy ghost reproaches in the ostritch , who lays her eggs in the sand , and considers not the foot of the traveller may crush them . the sense then of our chancellour by industry , is to commend such a proportion of time , as the prince can spare from the more important things of his office , to spend in the study of the law. as for the study of all liberal arts and sciences , i would have you reasonably versed in them , but not preassing to be a pass-master in any of them , for that cannot but distract you from the points of your calling . so wise king iames ; which he probably might thus intend , that he in his industry in the study of the law should aim ; first , scire linguam , to know the language of it , that he may understand what he reads ; then scire libros legis , that he may , by knowing authours , and culling the most pithy and methodique of them , improve the most he may , the time that he spends in perusing them . then thirdly , scire regulas legis , for they are the tropiques upon which the law moves . then fourthly , scire rationes legis , for that 's of the form and constitution of it , and declares the mind of the legislators of it . fifthly , scire fines legis , for the end of the law , is the motive to , and the merit of the law : so that when he does think of little time , and little toil , there must be a vigorous and thrifty expence of that little , and that will make it go a great way . for all time is lost , and all travel in study to no purpose , if there be not a close application of the mind to the thing we prosecute ; and that once vigorously set a work , carryes all to the desired upshot ; not onely lets a man into the secrets and abstrusities of knowledge , so that he knows good and evil , and employs his time and diligence in obtaining the one , and avoiding the other ; but it prevails against even the morosity and untractableness of wild beasts , as plutarch in his excellent book , de solertia animalium , has made good . therefore dummodo ad ejus apprehensionem tu animum conferas , is the indispensable limitation . for though by miracle god can , as he once did , give learning imbre linguarum in a moment , without any contribution of mans , previous to the collation of it , as was plain in the case of the apostles , on whom the spirit descended in fiery tongues : yet the ordinary way of god is by those steps and assistances of time and labour , that bring about conquests in arts , as stupendious as alexanders in arms , and that parvo tempore , and parvâ industriâ , that is , while the searchers into , and after them , are young , and their pains is in the nature of expression of a pleasure ; that as extraordinary fire , aptly conveyed through meet conducts , intends more to the liquefaction , and rarefication of any thing in a day , then otherwise it would in a longer time ; and apt moulds prepared , and reflexions on fruits and plants maturateth them in three or four moneths , which in the ordinary course of season would be a much longer time in production : so in study , intentness of mind , and earnestness of labour , brings about that in a little time to great perfection , which but for it , would not be so circumacted . for here the proverb is true , faint heart never wins fair lady . time and toil will never bring to the port of learning , except the addition of the students mind , proceeding from a love of learning , accompany opportunity and endeavour : love and labour do sweeten each other , and promote their consequent success ; it being pleasure , not labour , to follow our loves , though we lose our lives and wits in the chase and pursuit of them , and bury our beings in the mine where her oar lyes even archimedes , and eudoxus , will both lose their lives to illustrate the art they were enamoured of ; and aristotle not think the compiling of his history of creatures tedious , because he loved to search and know what was to be found and known . o this application of the mind , is that which has all natural potency in it ; 't is the door to all speculation and action : this makes men excellent and general , because indefatigable in study ; the praises of miltiades , the renown of heroick acquisitions , rewarded in those that have preceded them , stirs them up to an emulation , which draws off their eyes from sleep , and keeps their hearts musing upon their darling . this is that holy charm , that moses prays god to bestow upon his people , psal. . . so teach us to number our days , that we may apply our hearts unto wisdom , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ut adducemus cordi sapientiam , which is ad verbum , that we may bring to our heart wisdom , that wisdom and our hearts may be one and the same , the root 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in niphal , signifies ( according to rabbi david ) vaticinari , receptionem à deo & sermonem quem jubet deus ut loquatur , & then the sense may be , that our hearts may have wisdom , as truly and fully revealed to them , as the prophets had visions , and that by considering the nature of our days on earth , we may fore-tell our future condition , either of weal or woe , and endeavour to make us friends of this unrighteous mammon , that when we fail , they may receive us into everlasting habitations . so that dummodo ad earum apprehensionem tu animum confer as , imports a delight in , and an endeavour after the knowledge of the law : for animum conferre ad aliquid , is as much as to ponder on , and steer all ones actions to a thing , to make it the mark we aim at , and the goal we make to , and the centre we acquiesce in . this , though the chancellour did not in the strictness of the notion perswade the prince to , since he had other employments , which did more immediately take him up , the intrigoes of state , and secrets of policy , the interests of his crown , and the conducts of counsels . these being the more weighty matters of regality , and requiring more of the personal intention of the prince , were in order of concern and prudence , to be the chief and main of his study . though i say in the severity and heighth of the notion , the prince is not here pressed animum conferre ad earum apprehensionem , yet in such a competent and convenient measure , as he can , and his other affairs will permit , he is , and the more he is , ( other things not being neglected ) the more accomplished is he like to prove ; since as lucius crassus , that great lawyer said , omnia sunt posita ante oculos . &c. every day , and with every man there is good use to be made of the law ; which may be understood not onely as in the bulk and greatness of the author , containing the ocean of its variety and learning , but as its practice in ordinary administration patefies it . to conclude this head then , i presume our text-master well knew what knowledge in the law was necessary to accomplish the prince , and that it was acquirable in that small time , and with that pleasurable industry , that a year well and profitably spent therein , may in a good measure perform ; and thereupon he says , parvo tempore , & parvâ industriâ , because there is nothing which constant endeavour , and diligent care will not attain and overcome . nosco enim ingenii tui perspicacitatem . here the chancellour by a courtly concession , tempts the prince to a rendition of himself to his swasion ; and this he does not as one of those , pseudo catones perniciocissimi , &c. which budaeus says , study mens humours rather then their virtues , and pimpe to the one , while they subvert the other ; exceeding even roscius , the phoenix of actors in their theatrique impostry , as budaeus sets them out ; but as a good and grave gentleman , who considering the mercies of god to the prince in his endowments of mind so ripe and pregnant , calls him to gratitude to god the giver , and to a good and virtuous employment of them so given . indeed , this is the best construction christian ingenuity can make of extraordinary mercy ; not to abuse it , but to fix it upon the noblest object god , and to be satisfied in no sphear beneath , or besides his glory promoted , and charity to man auxiliated by it . it was undoubtedly a noble proposal that tully made to his mind , or rather his mind to him , when he thought , iuris civilis disciplinam in artis rationem formámque redigere ; and that by these steps , the whole body of the law he would refer to several common heads , then reduce every general head into members , then determine the state , use , and operation of every of them . every brave and generous mind should do so by the memorie of the mercies of god considering them in the latitude , as they are effluxions from the soveraign bounty of the creatour to his creature and then applying them to his condition , and affecting his soul with the obligation of them , and exciting himself there from to a proportionation of every virtue , which god requires to be performed , and when performed , he promises to accept . now this being the duty of men endowed with such rare perfections , as ripe wit and ready apprehension , which the text calls , ingenii perspicacitatem , the good chancellour remembers the prince in the excellency of the blessing , to perform the requiry of the obligation ; for that he had a ready and acurate understanding , whereby he could 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. whereby he could easily learn whatever he would , and retain what so he had learned , and distribute those good parts of learning he had , to publique good , is plain from what the chancellour , who best knew him , intends hereby to publish of him ; yea , and his choice of arms for his love and study to excel in , which his condition told him was properest to aid , restore , and adorn him , unto his expected kingly condition , does sufficiently confirm to me . for to the amazement of all his contemporaries , he not onely boldly came in the head of an army to fight the usurper ; but when he by misfortune of war was a prisoner , justified his fact to the teeth of his opposite ; which declares , that he had ingenii perspicacitatem , and saw that it was his interest above all things , to be in his addiction martial ; and this he accordingly being , is said to be perspicacissimi ingenii , as being a man in wisdom , while a youth in years ; yea , a prince , who had a complication of all the promising excellencies of prudence in him . and this the chancellour thus charactering in him , informs us , that a gentleman he was above his years : for perspicax implyes prudence . tully writing of palumedes , says there was in him perspicax prudentia , and the greeks calling this by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which suidas expresses by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and intends such an insight into things , as men have who look with not onely both their own eyes , but with all the other mens eyes they can be helped to see through things by . and the chancellour seeing in the prince a more then ordinary princely smartness , ( i say princely , for god ordinarily does qualifie them above others , as he designs them for greater charges then others have ) the chancellour i say , perceiving by the first appearance of the sun in the morn , and the early appearance of his life , calls upon him to direct his ripeness to a right object , and by right and proper means , to wit , the law , which he may sufficiently , to credit himself to men , and to answer comfortably to god , learn knowledge in parvo tempore & parvâ industriâ ; since as quick and intense fires , make that warm through in a moment , which slow ones will be long in piercing ; and birds fly that ground in an hour , which feet will not carry horses and men to in three : so readings , and forward parts , will furnish ayouth plainly to perform that , which others with great labour , and long intentness on it , cannot bring about . and this is the reason of all the admirable masteries in learning , and sagacity that some young men arrive at , and are made famous by . not onely in arts ; as papinian and celsus , who publiquely read the law , before he was years ' old ; marcus antoninus , who in the th year of his age did virilem togam philosphi sumere ; that son of ianus drusius , who began to learn latine and hebrew at five years old , and within less then two years had learned them , with the greek , chaldee , and syriack : at seven he so rarely interpreted david in the hebrew tongue , that a rabbie then at leyden heard him with admiration : two years after he read hebrew without puncts , and found out the reason of their use : like performances to this he made in the greek and latine tongues , &c. dying in the , year of his age . yes , in our own nation we read , that glanvil began to be famous for learning in the law , in ipsa adolescentia ; while but a young man , he was famous for his judgment in the law. sir thomas frowick , chief-justice to h. . was renowned for judgment in the law , and a judge of it before fourty years of age dying , floridâ juventute . add to these grocinus lupset , whom (a) budaeus terms juvenum doctissimus , sir philip sidney . these , and many others , dead and alive , not inferiour to them , are benefactors to arts , and to a miracle , great proficients in them , and beyond their years . so in matters of action , youth hath strangely been prodigious ; alexander subdued the world before he was years old , which made i. caesar rub his head with indignation , breaking out into that pathetique , nos vero quid ! cnejus pompeius in . and octavius in the . year of their age engaged eminently in the wars . severus , before he was years old , rendred himself egregium militaris disciplina exemplum , saith fulgosus , m. manlius capitolinus before years of age , took two spoils from the enemy , eques omnium primus , &c. the first knight , saith pliny , who wore the mural crown . count guido ranjone is by giraldus set out as a mirrour of youth this way : and all this by the blessing of god on the pregnancy of nature , which excites to , and perfects them in these projects so early . for though it be not infallible , what is conjectured in order to the futurities of youths proofs from the present lines of their faces , and lineaments of their actions ; but that it may not , as well as sometimes it does , fall out according to judicious prognostications , and judgments on them : yet mostly it is too true , that the vices as well as virtues of men , appear in their cradles and infancies . malmsbury tells us , alfred embraced his grand-child athelstan , looking upon , and seeing in him grounds to believe excellent things of him . and saint bernard seeing our h. . when a child , and at nurse in the court of france , looking on him , said , monkishly and mischievously , de diabolo venit , & ad diabolum ibit , saith brompton . and all this , from that impression , which in natures order and method has been fixed on them in the principle of their generation , which has for the most part so direct and vigorous an influence on them , in all the after choices and expression of their lives , that they are what is more suitable to that , and mostly abhor what is in contradiction to it , unles● by divine grace and natural prudence , they are preponderated . hence is it , that children and youths of great wits and forwardnesses , are either the comforts or griefs of their parents , the joys or terrours of their governments . for they being rasatabula , whatever is first written in them ; they retain with a vehemence assisted by their acumens . and since whatever they undertake , they perform with much pleasure , and persistency , they may be pressed upon to perform that parvo , tempore , & parvâ industriâ , which others not being so happy in a perspicacity of wit , must without remedy be longer about it . and so this nosco ingenii perspicacitatem , was the reason why he tells him , he may be sufficienter eruditus in legibus , parvo tempore , & parvâ industriâ . quo audacter pronuncio , quod in legibus illis licet earum peritia , qualis judicibus necessaria est , vix . annorum lucubrationibus acquiratur , tu doctrinam principicos gruam in anno uno sufficienter nantisceris . this is added , to evidence the chancellours judicious experience of his assertion , and it extends not onely to noscoingenii perspicacitatem , but to the whole scope of his words precedent , that he could by god's help , and would by his submission to his prescription , make him undoubtedly sufficiently learned as a prince in the laws of england , parvo tempore , & parvâ industriâ , which he limits to one year . now though it be a small time to so great a task , yet may with method suffice to instruct the prince in that part of the science of the law , which he calls doctrina principi congrua , that is , in the common notions of law , and elementary rectitude , in the skill of preserving the iura corons , and the rights of the subjects from clashing and interfering , in the sanctions of parliament , which either explain and clear , or add to , or abridge the common-law , or remove new obstructions , which incommodate government . these may be sufficiently read to , and riverted into a prince , anno uno , and ( i humbly conceive ) are sufficient knowledge for him , according to the sense of the chancellour . nor does the chancellour in this , audacter pronuncio , speak hyperbolically , but according to that gravity and truth , which the judgments and reasons of his , in the year-book of h. . from the . of his reign onward , record of him , and the experience that on other young men whom he had in his time instructed to some such proportion , made good to him , he could to the prince perform ; yea , and if this he did do , he did nothing but what others since him may be presumed to attain to , or what is equivalent to it . hopperus , a learned civilian and counsellour to philip the second of spain , undertakes the like in the civil laws . his words speaking of the institution of a prince , are these , ad quam rem plurinoum juvabit tractaius pandectarum , & c. to which end , the reading of the pandects , in which are the rules of the old law , conduces much to the preparation of a student towards his procedure , so as he begin with the institutions ; then the books that expound the words and rules of the law ; and lastly the rubriques of the pandects , code & novel , which he calls the labour of the student the first year . thus that great master ; whom my learned and religious friend mr. langford , heretofore mentioned having throughly studied , and that with design upon these very words of our chancellours , has attained to much ( i believe ) of that which the chancellour and hopper intend the work of one year in either laws ; for , having in the comparing of these two authours on this head , made a kind of symphony between them ; the nosco ingenii tui perspicacitatem in our fortescue , with natura , ingenium , labor , diligentia in his hopper . and our doctrina principi congrua , with his ars regia ; and our sufficienter eruditus with his nè quid nimis . and our in anno uno with his primi anni studiorum labor . he concludes , that the chancellours audacter pronuncio , is no boast , but what the chancellour himself very well knew how to effect , and what he after him , by god's help , is able to instruct youth to do : which that judicious authour of doctor and student promoted , as to the utility of its design , and the profit of its consequence , in these words , if the noblemen of this realm would see their children brought up in such manner , that they should have learning and knowledge more then they have commonly used , or have in times past , specially of the grounds and principles of the law of the realm , wherein they be inherit , though they had not the high cunning of the whole body of the law , but after such manner as mr. fortescue in his book that he entituled , de laudibus legum angliae , advertiseth the prince to have knowledge of the laws of this realm , i suppose it would be a great help hereafter to the ministrations of iustice of this realm , a very great surety for himself , and a right great gladness to all the people . so doctour and student . these things i note , to shew that smaller degrees of learning in the laws are sufficient to the accomplishments of gentlemen and princes , then professours and judges ; and that the twentieth part of that science , which is but unius anni filia , the fruit of one year will suffice for the one , when the study of twenty years will vix judicibus sufficere , scarce serve to the necessary accomplishment of a judge : which eminently sets forth the eminency of learning , which a judge ought to have , who after three apprentiships of years , one under the bar legendo & scribendo ; the second at the bar , audiendo & practicè observando ; another , ruminando & maturè judicando : yet how well soever he improves them all , arrives but at the title of serviens ad legem : for since the text says , vix viginti annorum lucubrationibus , the skill of a iudge is attained , there is great reason the judgments of them so perfitted , should be in high value . for since the iudges have no power to judge , according to what they think to be fit , but that which out of the laws they know to be right , as is the resolution of all the judges in calvin's case ; it becomes the judges to be men of great standing and study , as blessed be god and the king , they are , that they may distribute justice to the glory of god , and content of the king , his people , and their own consciences . first , then this time of study presumes great parts attained , and grave experience in the practice , as well as theory of the law arrived at . for the rule being , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 men judge of things as th' are in mind endow'd , to kings in art , judgment of art 's allow'd . and the judge being a representer of the king , ought to be so qualified , that his place may from his indis●ration have no disparagement . and thus to do , will require vast knowledge , not onely in laws of all sorts , but in men and things , and in the conversation with , and operation of them , the knowledge of these must not onely be , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , have a part in him , but be the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the whole of him . for a judge ought to be the living law , and the speaking iustice ; so says the philosopher . and this to be to all intents , and in all cases , calls for not onely great assistance from god , but great industry and intentness on study , and all little enough to carry the weight and burthen of his place , and creditably to execute it . no common custome of the nation , no entry or year-book , no judgment , no writ , no title , nothing that may make to the dilucidation of causes , must he be ignorant of : nay , if he will rightly execute his office , he must be seen in arts , histories , mechaniques , and all occasions of conversation , that so he may know how to unriddle the abstrusities of cases , and know where frauds lye , and obviate them : for since that of paulus is true , omnis qui defenditur , boni viri arbitratu defenditur . and that the gloss renders , by boni judicis arbitratu , a judg is to be a most accomplish'd man in the gifts and graces of his intellect and mind ; and this he cannot attain easily to be , nor continue to practice , till the heats and temptations of youth are over , and the solidity and indiversions of age and maturity be arrived at , which is seldome attained under the age of fourty , or above , by which time they may have a full twenty years time to store themselves . i know there have been some young men , who have lived little in time , but long in fame ; scipio africanus the master of atrick , was but a young man when he obtained that title . so was fabius cunctator . athelstan was such an one , whom no man before him did excel in the majesty and prudence of government , and others heretofore i have quoted presidents of it ; but these have been but rare , as rare in men , as successions of brave men are in families ; in which , though one family of the curio's in rome , produced three successions famous oratours , and one family of the fabii , three chief senatours one after another ; and the annaei of corduba , three brethren famous for learning , and exactness of morals ; and tacitus augustus continued the honour of his family , even unto cornelius tacitus his time . yet have more brave men and families been degenerous , and abated the splendour of their ancestry by their vicious imparities to them , as zuinger in many examples confirms . and so , though in the law some may be culled out , that extraordinarily profit , and are for learning , temper , grace , and integrity , fit betimes for judges , perhaps some time within the space of twenty ; yet such are but rarae aves ( one phoenix perhaps of this kind is in an age ) generally the rule is peremptorily true , that a judge's knowledge and learning is hardly got in twenty years time , if then . a judge then therefore is so long attaining his qualifications , because not onely they are many in number , and different in nature , but depend upon some masteries of self , and intuition into the mysteries of things , which are the product of great years , and much wisdom collected from them : while youth is warm , and passion keen , when the apprehension is not fixed , nor experience has corrected the volatility of fancy and humour , there is no room for unmoveableness , and a rectitude equally distant from the extreams . now such an equilibriousness being the perfect mean of virtue , and justice directing a judge , not to seek and affect the glory of clemency or cruelty , but to keep himself to evidence , and to the truth of the law , in censure and judgment of the fact : is it probable , such and so great masteries of nature and corruption will be in young men , who are all fire and tow , all tinder and quick-silver , as in those whom twenty years study have cooled and setled on the solid and serious basis of prudence and piety , which onely fits men to be of the sages gents , gods to men , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , servants to iustice , not engines of oppression and extravagance ? which considered , our chancellour has done well in giving twenty years to the accomplishment of a judg ; not thereby outing earlyer attainments of the fruits of god's blessing on their studies , and the king's favour in calls to the bench , if sooner the attainers of them are thought fit ; but to let the world know , that the most of learned men are in no competent measure qualified for that trust and dignity , under that standing ; and dangerous it is to call men to that preferment sooner , unless for extraordinary deserts , least they should sub gravitatis purpura nepotari . and this , as i said before on the th chapter * justifies the kings of england in all times , and our now liege lord at this time , not to make any judges before they have emerited , and exceeded the chancellours limitation , which i am sure the youngest judge now has almost twice , if not altogether over , and which is the reason that the courts are so learnedly filled with justices , and the people so satisfied with the justice of their judgments . so true is that of plutarch , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 youth is the season of obedience , but old age best befits rule , and best carryes on government . ne● interim militarem disciplinam , ad quam tam ardenter anhelas , negliges , sedeâ recreation●s loco , etiam anno illo tu ad libitum perfrueris . here the chancellour applyes himself to the prince by a wise insinuation , adapted to the humour of youth ; which being delighted with actions of pleasure and gayety , is frequently kept from other more serious and useful accomplishments , by the prejudices it has , as if they were inconsistent with the other things of recreation , and externity of pomp ; which because the chancellour knew a dangerous anticipation of his counsel , he endeavours to remove by a calm and swaviloquious grant of recreations , and a competency of time to military affairs , without any frustration of his sufficient accomplishment in knowledg of the laws in the proportion , and within the time aforesaid . and to good purpose does he do it , for had he told him , that the recreation he had chosen , was to have been refused , that learning in the laws alone could make him good in his person , and good to his government , had he kept him to the rigid and austere rule of study , and not given him some relaxation , and allowed that best spent , in what he most delighted in , and would really find a great ornament to him , military discipline , he had wholly lost his ear and heart ; which done , all the reason he could speak or write , would have been ineffectual , because coming from a tongue and pen unfavoured , and therefore suspected ; but in that he does so comply with the prince's youth , and yet follows on his intendment , argues him to be both a man of civility and sageness : for as labour is wearyness to the bones , a punishment of sin , and the waster of life ; so is recreation , and cessation from it a re-invigoration , or second enablement of nature to bear her burthen . thus pliny uses recreare for instaurare , si enim defecta long is aegritudinibus corpora recreantur . afflictos bonorum animos recreare , so tully . and amicorum literis recreari ; conspectus vester reficit ; & recreat mentem meam ; afflictam & perditam provinciam erigere & recreare . by then recreationis loco , he intends that he shall not be kept that year he is proposed to set apart for instruction in it , close like a prisoner , or an apprentice , but he shall have his play-times ; and those not onely as often as he profitably and ingeniously may ( study also being conveniently considered ) but in that specifique delight , which he does above all others choose as his mistriss and darling . for as the eye , always intent on reading , will at last be weak , though its composition and visual organ be never so strong , and the bow , if always bent , will grow weak , and the treasure always drawn from , will in time be exhaust ; and as shades are made of many colours , which any one colour will not perfect : so is the mind not onely pleased with , but refreshed by variety ; and therefore , as wise physicians prescribe no physick to the body , but such as it will bear , nor no oftner to repeat it , then they find morbid matter adhering , and then the strength and spirits of the patient will permit , but prescribe intervals by which the body is restored , and the strength in some measure recuperated : so do wise tutors gratifie their pupils with such refractions of them from their intentness on study , as may make them come to it fresher , and continue at it willinger , since by them they are made more apprehensive of their reading , and more emulous to deserve well , which they are so kindly dealt with . though then our chancellour did press vehemently for the princes training up in the knowledge of the law , and that by an intentness of mind for one year , in which he ( so ingenious and docile ) might be by the chancellours method taught it ; yet did he not desire all that years time to the law , but allowed him part of it to matters of arms and chivalry , part to devotion and piety , part to food and necessity , and part to friendship and courtesie ; which he i suppose did in a method , much like that my worthy friend mr. langford has imparted to me , and he himself has profitably disciplin'd young gentlemen in grays-inn . the natural days hours he thus distributing . from in the morning to . ad sacra . begin with god by reading and prayer . from . to . ad iura . read the law carefully and understandingly . from . to . ad arma carry en harmless acts of manhood , fencing , dancing , &c. from . to . ad artes , forget not academique learning , logick , rhetorick : from . to . ad victum , eat seasonably , moderately , and allow time to digest . from . to . ad amicitias , visit civilly your friends , and repay kindnesse in kind . from . to . ad artes , read history , poëtry , and romances . from . to , ad victum , take food often , but not much , nor heavy . from . to . ad repetitionem & sacra , repeat your parts , and say your prayers . from . to . ad noctem & somnum , to bed be times , and rise betimes again . which proportion of the dayes of a year exactly kept , will not onely allow every part of life its due share ; but determine to the princes comfort and content that engagement , and the possibility of performing it , which was by the chancellour made in those preceding words , parvo tempore & parva industria . and so concludes the eighth chapter . chap. ix . secundum verò princeps , quod tu formidas , consimili nec majoxi operâ elidetur . dubit as nempe , an anglorum legum , vel civilium studio te conferas , dum civiles supra humanas cunctas leges alias , sama per orbem extollat gloriosa . as the first disanimation of the prince was taken from the perplexity of the laws study , and the supposed impossibility of conquering it to any tolerable perfection in short time and with moderate study ; so the second is , whether law the prince shall choose as the subject of his study , whether the particular , insular , municipe law ; which no nation knows or owns but england alone , or the civil lawes which are the lawes of the continent , and to which almost all nations , and the learned men of them generally subscribe . this i confesse is a rational seruple , and that which in point of choice , a man of parts and single eye who unengaged seeks truth , and would bottom his actions thereupon , would be diligent to seek , and rejoyce in the obtainment of . for good being the end of mans desire and action , and it being deposited in the lawes of god and nature , whence all active good , that of prudence and conduct is extracted : to chuse the best method of them is the highest act of concernment , next the souls affairs , man can be imployed in . this the perspicacity of the prince diving into , conveyed such doubts into him , that he could not jurare in verba magistri , and take his chancellour's choice till he had concocted the arguments he proposed to his solution , and satisfaction therein . and truely , if it be considered what tully sayes of the civil law , o rem praeslaram vobisque retinendam iudices , &c o the divinity of that law , which yee , o iudges , are to keep , as your iewels and life ; such it is , as neither savour will bend , nor power break , nor money corrupt , which if removed , all right and propriety ceases , and all things fall into confusion , thus tully : and if what infinite other authours , and the wisest nations of the continent have of honour done to this law , be here rehearsed , it would make many volumes , and extrude the series of my intention in this commentary , and may well stumble a young prince which of the lawes to chuse , at least to refuse the civil lawes , which so great governments do admit to their regulation : and this effect , i suppose by the words of the text-master , this debate , and irresolution of the prince in his choice ( supposing him free ) had on him ; for else the chancellour would never have dehorted him from perturbation , which he calls mentis evagatio , a wander of the minde from its rational basis , and its station of consistence against passion , and the distortings of it . for since the prince had long , and fruitlesly ( as he thought ) waited god's return , which the heighth of his forward youth would ripen sooner then omnipotence pleased , since he saw another in his father's throne besides himself , and was greedy to contend and evict that which was supposed his right ; this considered , i say , may give us shrewd suspicion , that the grave chancellour saw him impatient , like that ill-advised man in king. vi . last verse , this evil comes from the lord , why should i waite for the lord any longer ; and in a hurry and storm of passion meditate to be revenged of the lawes , the sacredness of which seeming to shrowde his antagonists possession , made his accession upon him more difficult . this probably the old chancellour sadly considering , occasioned his counsel of recollection to the prince , not onely to allay the present servor of his youthful mettal , but to convince him , that when he had bussled all he can , and fretted his minde into a tempestuous heat , hazzarding all the serenity of his hopes and the comfort of god's reverter in mercy to him , he could do nothing princely , but what must and ought to be legal and just : and this he tells him is in the lawes case resolved , past doubt or alteration ; as a man that is married cannot use his wise as he please , but according to the nature of marriage , and the right of the privileges thereof ; so the king of eugland cannot salvo sacramento , salvo iure , salvâ conscientiâ , change the lawes of his government at his pleasure , but does and holds himself obliged to do nothing regally , but what legally he may , which he not being able ( salvis his ) to do , the question is answered in the negative , , non potest rex angli● . nam non potest rex angliae , ad libitum suum leges mutare regni sui . principatu namque nedum regali , sed & politico ipse suo populo dominatur . this the chancellour wrote not to assault or lessen the king's power , but to render it by its soft and gentle edge not onely lesse terrible , but more obliging to the subjects , towards whom it expresses it self so mercifull ; and truly did i not humbly resolve by god's grace assisting me , to be just to truth , and modest to the great power of my dear and dread soveraign , it would have become me rather to do by this subject , as patroclus did by achilles his spear , not meddle with this of any to comment on , because it is so easie to err about it : but as i humbly implore the wisdom of god to direct me to write the words of truth and soberness ; so do i in all humble reverence to the majesty of my lord the king , beg his pardon and ●avour , that what i write may be esteemed to proceed from a justice and loyalty , which aims at nothing but the real explication of the truth herein ; to which , since the text leads me , and a truth there is much to the illustration of the excellency of the monarchy of this nation reported in it , i will , with all ingenuous modesty , write a few words of it . and the clause analyses it self thus . first , there is the subject matter , or the noble thing he speaks of , that 's a king , and a king of england . secondly , there is the negative predicate , what this king , and king of england cannot do , non potest ad libitum suum leges mutare regni sui . thirdly , here is a production of the reason , why thus he cannot do , he is rex anglia , that 's argumentum ab officio , and then they are leges regnisui , and thence arises the subjects interest in them . the kings , with the consent of the three estates his subjects , has accepted , and in parliament made them ; and though he could have denyed his consent , and so not have made them laws ; yet having once passed them , they are not to be altered at his will , because the subject , for whose good they are , is concerned , & nihil potest rex quàm quod de jure potest . these heads take up the sense of the clause . rex angliae ; this is the title of the mighty monarch of england , whose imperial crown is a monarchy independent on all but god : and as it is a monarchy the best of governments , because the government of god over the world ; so is it the best of monarchies , not onely in regard of temperateness , but succession : a monarchy it is , in which the image of god's glorious soveraignty resembles its protoplast , being made such as it is by his mercy , and by the clemency of the monarchs of , and the laws in it . a government it is , not such an one as the philosopher calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the blot and blemish of kinglyness ; but such an one as answers every end of god and man , a kingdom wherein 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the king is the keeper of order and religion , peace and property , and the people kept by him are his faithful lieges , to defend his title in , and to the said imperial estate , place , crown , and dignity , in all things thereto belonging at all times , to the uttermost of our possible powers , and therein to spend our bodies , lands and goods , against all persons whatsoever , that any thing shall attempt to the contrary . they are the words of the nation in parliament , stat. i eliz. c. . confirmed by i iacob . c. . thus happy is the king of england , that he rules the valiant'st people , the richest spot , by the renowned'st laws , and in the religiousest method of any monarch in the world. for it is a principle congenial to our kings , not onely to delight to rule their subjects by the law , but even conform themselves in their actions thereunto , always keeping that ground , that the health of the common-wealth be their chief law. so faith king iames. since then the king has the power of arms , courts , coyn , justice , both in criminal and judicial matters ; for they are all by , and under him , administred and actuated ; that yet notwithstanding all this , he should keep himself within thé bounds of justice and mercy , argues him highly blessed of god , and deservedly beloved of men . since as a king , he is above the law , as the authour and giver of strength thereto : yet as a king of england , bears the limitation of laws of his own free-will , though not bound ( as others ) thereto . which considered , the chancellour's negative predicate , is a truth , in a qualified sense , non potest ad libitum suum , &c. for non potest does not respect the absolute and strict power of a king , for then who of his subjects shall dare to withstand his pleasure , and impede his resolutions any more then a whippit dare ruttle and enrage a lyon , or a smelt contend with a whale . as god over the world , so kings over their subjects , have an omnipotence not to be disputed with , but adored by them . if david will eat the shew-bread , which is onely the viands of the priests , and take the wife of uriah , which is the proper treasure of her husbańd , there is no opposing him . but the non potest is with respect to lenitive concomitants of absolute kingship , reverence to god , veracity to the coronation oath , valuation of justice , and honour with men , peace in the prince's conscience . all these come in to modifie the non potest , and to put weight upon it , so as to make it as the centre of the earth unmovable . and this is that which the kings of england have not onely consented to themselves , and such their consent confirmed by oath , i think my oath fully discharged in that point , by my governing onely by such laws , as my people , with the house of peers , have chosen , and my self have consented to . so the martyr'd king charles ; but sworn also their judges to observe in their delegations of power to them ; ye shall swear , that well and truly , ye shall serve our lord the king , and his people , in the office of iustice , &c. and after , and that ye deny to no man common right by the kings letters , nor none other mans , nor for none other cause , and in case any letters come to you contrary to the law , that ye do nothing by such letters , but certifie the king thereof , and proceed to execute the law , notwitstanding the same letters , are the words of the statute , e. . and if the king cannot rationally and politiquely command his judges to judge against law , because they are discharged by the kings own laws from such commands , sure he that is the fountain of justice , can not reasonably and plausibly approve that in himself , which he condemns in his ministers , for the king willeth that right be done , according to the laws and customs of the realm , and that the statues be put in due execution , that his subjects may have no cause to complain of any wrong or oppressions , contrary to their just rights and liberties ; to the preservation whereof , he holds himself in conscience as well obliged , as of his prerogative . so that our chancellours non potest , is but in other words thus much , since the king rules by law , and parliamentarily makes and repeals laws , &c. the king cannot lawfully , ad libitum leges regnisui mutare . and the reason is twofold ; first , quia rex angliae , he is a king , not a tyrant , and all kings that are not tyrants , or perjured , will be glad to bound themselves within the limits of their laws ; a lawful king , not an usurper , king of england , a land of freedom and riches , god's earthly western canaan , regnum angliae regnum dei , was an old saying , and he ruling as god does , by a law , and that a just convenient and wise law , which answers all purposes of government , cannot change that law , that is , bring in another law in room of that by his will and prerogative ; nor shall he need to do it , or have any of the kings of england , that i have read of , attempted to do it . the laws of england being so fitted to the people , that the oracle of monarchy spake and wrote it , that the grounds of the comlaws of england , are the best of any law in the world , either civil or municipal , and the fittest for this people , and so subsidiary to the honour and security of the king , that no law can be more favourable and advantageous , and extendeth further his prerogative then it doth ; and for a king of england to despise the common-law , is to neglect his own crown . and thus the non potest refers to prudence , prudenter & utiliter non potest , quia rex angliae , and ought to advise what is good for him and his people . secondly , conscienter non potest , because they are leges regis , in regard of emanation , fontality , and sanction ; and regni , in regard of application , appropriation , and interest : by all which , subjects are so inserted into the propriety of them , that they cannot be illegally taken from them , ( and illegally they must be , if without their consent altered ) without great dishonour to their violators , and great provocation of divine vengeance upon it ; which the piety of our monarchs considering , ever abhorred . for though in some times , and upon heats and cholers , there has been somewhat interpreted like a tendency that way ; yet has it ever been but an embrio , and soon turn'd into ruine of those that advised it . for the common and statute laws of england are in the mass and bulk of them unalterable , being fundamentals of all english order and authority , which is the cause our text says , non potest rex angliae ad libitum suum regni leges mutare . which words are not rigidly to be taken , as if the chancellour by them fully disseised regality of nomothetique and regal power in their legal sense ; and as according thereto our brave princes have juridically expressed themselves , for then the majesty of the crown would not be such and so imperial , as the prealleadged authorities assert and confirm it to be ; or as if the chancellour thought the system of the laws in his time , so compleat , that no addition could be made to them , no explication be made of them : for to dream of that had been altogether absurd , since no wisdom of law-makers was ever so exact , no method of laws so absolute , but some casus omissi have been discovered in them , to which additions and declarations have been in supplement , as appears not onely by all acts of parliament , made in succession of time , but is also in words set down in the statute h. . c. . no such intent had the chancellour in his non potest mutare leges to assert ; for unreasonable it had been so to have written , since laws , as garments , are good and comely in some ages , and in some temper of affairs , which in others are ridiculous and cumbersome : yea , if this latitude were not allowed princes politiquely to do , no obviation could be of emergent mischief , no provisions be made for reward of occasional virtue . both which power has occasion to apply , as to its judgment seems fit . and therefore the chancellour , as a man of state , and law knowledge , intends not his non potest mutare leges , &c. thus to be understood : no , nor does he by non potest rex angliae , take upon him to infirm the crown , and make it detectuous in any point of necessary and just dominion over the subjects of it : for as in divines disputes about god's power , though it be usual for them to say , god cannot do any thing that implyes contradiction ; yea , that it is impossible for god to lye , because he is truth it self , yet they mean the impossibility to be , ex parte rei , non ex parte dei , not from any dif●ct of divine power ; sed ab ipsa rerum , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , but from the incompatibility between truth and a lye . for god , can by his essential absolute power , do what he will ; and when it is said , he cannot do any thing , 't is not ex defectu potentia ejus , sed quia repugnat sacto in quantum sactum , vel in quantum tale , as the school say . so in this case of the kings , non potest leges regni sui mutare , our text-master intends not to dispute what the king in the heighth of majesty and absoluteness , quâ god's vicar , may , or may not do , for that 's between god and him , and to that god onely sets bounds : but that which the non potest refers to , is such a power , as he himself that is king , has in the law admeasured out to himself , and sworn to observe inviolably , and to cause others to see observed . concerning this , glorious king charles writes thus : i never was counselled ( quoth he ) by any , to alter the least of the laws of england , much less to alter all the laws : nay , i tell you this , i think no body durst ever be so impudent , as to move me to it ; for if they had , i should have made them such an example , and put such a mark upon them , that all posterity should know my intention was ever to govern by the law , and no otherwise . thus he . and therefore , as the kings of england are fountains of justice and law , and from them , with assent and consent of their subjects in parliament , laws of publique good , and private restraint are made , in which the king is pleased to ratifie that maxime , nihil potest rex in terris quàm quod de jure pot●st . so i say , these things considered , the chancellor makes bold to say , and i from him , both of us in all humility , that the king of england cannot alter any or all the laws of england , by his own power , because there is no power but parliamentary , can alter any one law , much less the whole laws ( as was the design of william de la pool , duke of suffolk , in our chancellour's time ; to have done , and in room of them , to bring in the civil laws , which sir edw. cook says was the occasion of our chancellour's writing our text in the commendation of the laws of england . ) because when laws be altered by any other authority , then that by which they were made , your foundations are destroyed , said our once noble king. now if foundations be out of order , what shall the righteous do , is a scripture phrase . implying good mens sad condition , then surely to keep them in order , is the way to make them happy , and that is by the good old way of making and repealing laws by king , lords spiritual and temporal , and knights , citizens , and burgesses in parliament : all other new doctrine is apocryphal . for other foundation then this of making new laws additional to the common and customary laws , or repealing any of the common or customary laws , i humbly am bold to say , i know no man can safely or learnedly lay . and therefore if the non potest be here applyed to the king , it is not in diminution of his power , god forbid , ( that is sacred , and not to be spoken of but with reverence ; ) but in declaration of his justice , condescention , and piety to his people , who in thus restraining himself , doth like a kind father for his children subjects good : and thus are to be understood the words of the statute of acton burnel , the king by himself , and by his council hath ordained ; and the words of the statute , qui warrante , wherein de gratia sua speciali , is said by sir edw. cook , to bind the king in this particular of his prerogative , quòd nullum tempus occurrit regi . so are the words to be understood , i. westminster . where the act being penned , in the name of the king , and the king commandeth , therefore the king bindeth himself ( saith sir edw. cork ) not to disturb any electors to make free elections ; and so is to be understood that speech of sir iohn markham to e. . that the king could not arrest any man for suspition of treason , or felony , as any other of his subjects might , because if the king did wrong , the party could not have his action . not by these could nots or cannots , to lessen or abate , but to magnifie him that thus denies himself to do good to his people . for the king and his subjects make one body , and the laws concerning the whole , are to be considered of by the whole , the head as well as the members ; and thus conjoynedly laws , may regularly and parliamentarily be altered ; and without this authority , to do any thing to alter law , has not been the practice of our kings : for since to draw the freeholds , inheritances , &c. of the subject , ad aliud examen , and to make them judged by any law then the common-law , is termed a disherison of the king and of his crown , the disherison of all his people , and the undoing and destruction of the common-law at all times used as in the statute e. . c. i. appeareth , its safe to keep to the common warrantable use of making and adnulling laws ; for the peoples properties are hereby preserved , and that said our late martyr'd master , strengthens the king's prerogation , and the king's prerogative is to defend the peoples liberty . principatu namque nedum regali sed & politico , ipse populo suo dominatur . this is the reason why he cannot salvis praeconcessis , salvo jure , & salvâ conscientiâ , alter the laws of england , other then by parliament and national consent , because he has himself owned and established the law , as that by which he will rule , and not otherwise ; and that also , because he is a king by right of inheritance and succession , according to the laws of his government ; and this the text calls , though in other words , yet to the same purpose , that solon said was the best of state of government , where the subjects obeyed their prince , and the prince the laws : and this one of the bravest kings that ever the world had , thought so just , that he says , a continual parliament i thought would but keep the common-wealth in tune , by preserving laws in their due execution and vigour , wherein my interest lyes more ( says he ) then any mans , since by those laws my rights as a king would be preserved no less then my subjects , which is all i desired ; more then the law gives me , i would not have , and less the meanest subject should not . so he : and truly , the consideration of this every way beneficient government both to king and people , has so wrought upon the consideration of all of the kings of this land , that they have disowned all titles of conquest and absoluteness ( as in opposition to laws ) to adhere to the mild and lasting ones of regal and politique contexture ; which though the wife of the●pompus reproached , telling her husband , he would leave to his children a diminished empire : yet he told her , it would by it be more stable , and lasting : for when vitellius's , whom apollonius tyaneus called theban emperours , because undurable in their offices ; when those soon were buried in the oblivion of their desamed and execrable names , princes like ours in england , who of free would voluntarily ingage themselves to rule by their laws , and not otherwise , have not onely the glory to say , and that truly , omnia peregi meipso imperatore , as pompey did , but also the just confidence to fly to god for custody , against treason and rebellion ; yea , and when god is said to give salvation to kings , may well hope to have salvations multiplyed in their number , and heightned in their nature to such gracious and serene kings , as recede from the extremity of what they in grearness might claim , to express themselves in a gracious and qualified soveraignty , soveraignty like gods of mercy as well as power . this is our text-master calls principatu nedum regali , sed , & politico dominari . for though its government has whatever is incident to regality in the proper and just latitude of its notion , according to god's allowance ; nor does , or can aim to abate any things of the sacredness of the kings unction , or his powers divinity in his person , which being instituted by god , retains ever the nature of its institution ; yet does it so mitigate , and render majesty informidable , that subjects love the princes , who thus appear to them , rather then fear them , and by their loves are so affianced to them , that they count all they have as it were too little to supply their wants , to propagate their honours , to support their governments , and really give themselves up to them , as children to their parents , in obedience free from all dispute . by these words then principatu nánque nedum regali sed & politico , ipse populo suo dominatur . the chancellour concludes the government of england a paternal regality , as i may so say , that is , a monarchy mixed with love and tenderness , in which absolute power is regulated by law , and legal order protected by regal and legal power : so that as the king can do nothing but what is just , because he does onely as just what the law directs , which is the rule of justice : so cannot the king suffer any injury from the subject , but what the law will right him in , who is caput regni & legum ; which considered , though there be a recession in this contexture from what kings in their original power might do in individuo vago ; yet is there no frustration of the end of god in setting up kings , or mutilation of them in their happy advantages , to serve god's glory , and benefit men in subjection to them , but an advantage to both ; as all the temptations of passion and partiality are removed , and the clearer and readyer way advanced to publique benefaction and endearment . and this i humbly conceive was the reason , that the laws of england have carryed on this mediocrity , having both justice and mercy , restraint and liberty ; yea matter of captation and allurement both to good and bad , both to prince and people , and leaves checks on all degrees , to correct their mistake , and to conduct them into the channel of safety , both in point of obedience to the king , and of protection from the king ; the law and its prescript , iacob . . that the king's majesty , ' his heirs or successours , shall not at any time hereafter , sue question , impeach , &c. for as absolute regality would be too much under the line and solstice of power , sub zona torrida , which made the martyr king say , let your liberties , properties , priviledges , ( without which i would not be your king ) be secured . so meer politique government would be too far north to have any vitality to subsist upon , because sub zana frigida , the conjunction of them both in a happy tertian , which is the mixture of them , makes the rational religious moderate durable polity of this kingdom , in which the soveraigns do not onely , regaliter sed politice dominari , that is , are to all men , as their virtues or vices deserve they should be to them ; to the pious and peaceable encouragement , protection , promotion ; to the persidious and prophane terrour corporal pecuniary ; nay , if cause require , death : fo● that as the law allows the king to have two capacities , a personal and politique one , ( though not in the dispensers and others traiterous senses , ) yet in a sense of truth , annexing allegiance to both the capacities , and in no sort severing them : so does the law allow of two several presences of power in the king of england ; the one of lustre and glory , which is ( as it were ) not to be looked upon , this is that of the king , as he is armed with terrour , and has the power of life and death ; and this he hath in common with all kings . the other of amiableness , as it has wisely shrowded its astonishing brightness by some interpositions of condescension ; this is that our text-master calls politique dominion , such an admission of regulation in rule , as sweetens men to obedience , by working upon their reason and good nature , and gives their indulger a security from the lenity of his government over his subjects , whom because he is good and gracious to , he is beloved and defended by them . this is capable of mis-interpretation , unless the law be the arbiter , and that has recogniz'd the king onely under the power of god , if he violate his oath . but the subject is under an indispensable tye from god to the king , underwhose allegeance he is ; and the reason is , because the person and fortune of the subject is under the legal dominion of his prince , but the prince is under the only dominion of god. the consideration of wch has notwithstanding wrought great effects of restraint on martial minds , and that ( even then when they meditated the greatest inundations of restraints ) not onely abroad in the world , the instances whereof are in zuinger collected to my hand , but also in this realm of england , when it had a prince in it , that promised not much better then tiberius did , of whom the noble emperour augustus said , miserum romanum populum , qui sub tam ' lentis maxillis erit . i mean the conquerour , who though he came in fiercely , and won the field by battle , yet did not onely suffer himself to be admonished by aldred arch-bishop of york , whom he honouring as a father , suffered to mollifie and cool him , and by him was restrained from those fiercenesses , that otherwise he would have expressed . and therefore before he was solemnly crowned , he renouncing his martial title , and entring as a politique governour , did before god , and the good arch-bishop , nobles , and the people there present , take oath ; that be would defend the holy church , and the governours of it ; that he would govern the people subject to him justly , and as a prince prudently should do ; that he would settle right law , forbid rapts , and all unjust iudgment . yea , he made up a confirmation of his love to the laws of england , and his resolution to be swayed by them , by swearing . men of every shire in england , to report the truth of the laws without concealing , adding , or in any sort varying from the truth . this , and much more ingulphus , abbot of crowland , tells us ; and sir ed. cook from him , and others . and though i know the conquerour little regarded this oath , but disseised natives of their estates , and gave them to his normans , making havock of all that was preyable , and made the english his base vassals ; so that before his death , there was scarce in england an english noble-man left , it being a reproach to be called an english-man , as knighton's words are . yet that such things he submitted , and swore to do , when in full power , argued more a conviction , that so religiously and prudently he ought to do , then any fear upon him ; and that sufficiently answers my purpose , to confirm that regal and politique government , joyn'd in our chancellours sense , makes a good legal english administration , and that when heats and humours are asswaged , all high and martial princes fall into it of course , to save their own troubles , and their peoples lives and fortunes ; yea , as by the just judgment of god , mens opportunities are their discoverers , and shew them bad at heart , notwithstanding all their external and flattering good appearances ( so diagoras milesius was known to be an atheist ; for being in an inn , and wanting sewel to dress his dinner , he took the image of hercules , reputed in that place for a god , and cast it into the fire saying prophanely , tertium decimum , &c. perform now the thirteenth labour , o god hercules , and boil the broth of diagoras the atheist . ) as god , i say , does by these acts discover some mens follies ; so does he qualifie the vices of some notable persons with great virtues , that makes them not so enormous and truculent , as but for them they would be : hipparchus was a tyrant , but yet a great favourer of learning ; his first work was to institute his citizens in letters : so of cleomenes the spartan , and francis the first of france , historians write . ignatius that tells how phocas reduced all the romane freedom to persian vassalage , yet reports one thing worthy praise in him , romanum pontificem principem omnium jure declaravit ; so did this our conquerour deserve some good words , and he has them : authours tells us , he built abbies , monasteries , and religious houses , ut esset expiatio quaedam effusionis tanti sanguinis christiani ; but above all , tantae pacis author fuerat , &c. he was the author of so great safety every where , that a maid might have carryed a load of gold all over england . these and such other actions of publick influence are lustres in princes , who , under favour of their greatness , ought to improve god's preferments to his glory ; considering that life is but short in men , and the greatest actions in probability have expired even with the lives of their actours , which often have been then running the last sand , when they thought of nothing but diuturnity and paramountship . alexander the great , when he had conquered the east , resolved to march into africk and subdue that with europe , sed festinata mors tantas spes abrupit , alexander dyes , and his journey is hushed . majoranus emperour of ravenna would forsooth make an onset upon africk , but a disease prevented that enterprise . our brave h. . of england , when he made cock-sure of france , dyed by poyson . hen. . of france , when he had setled his affairs with spain and thought to enjoy quietness , was slain by a pass at tilt in paris ; so francis the . not long after , when he meditated fierce things against the hugonots , was prevented executing them by an impostume in his head , where of he dyed . no wonder then that wife and worthy princes study calm methods of rule , and look upon their subjects as children , and as such preserve them free , since they have an account to make to god above other men , and may as soon make it as other men ; which our kings perhaps especially considering , though they ey'd monarchy as the most excellent form of government ( nay the onely , ( others being but wanders from it , as it is the prime and essential government ) yet they consented to such a temperament of it , as philo calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the mean between the two much , and too little of other governments , which the king of england ruling according to , is by the chancellour said , principatu nedum regali , sed & politico dominani , that is , so to respect himself a king over , as to respect his subjects as free and felicitous under his government . si regali tantùm ipse praesset eis , leges regni sui matare ille possit . this rationally followes , for if absolute he were , as nimrod , ninus , belus , and the eastern monarchs to this day are , then his will were the law and would work upon change of the lawes as they regretted him or he them , or as he observed more use might be made of other laws then them , every absolute ruler either dictating laws or suffering those onely to be distributed as did lacquy to his absoluteness : but in that the king is said not to can a change of the lawes at his pleasure ; it argues him not less absolute , but more kind and conscionable in not trying what he can to the injury of what , as a father of his country and the people of it , he ought to be . god can do what he will , but yet he suffers abraham to interpellate for sodom , and moses for israel , and till those potent intercessors were answered , god gives us leave to think in kindness he could do , what in greatness by his power we know he could : so likewise it pleases serious and sober princes to be told , they cannot do that as lords , which they cannot be pleased in doing as parents , as husbands to their governments : nor does any boundary trouble a virtuous monarch , where his generosity consents to fix it for the reward of loyalty or an allurement to it . this politique dominion then is no effect of force on , but of love and grandeur in the kings of this nation to their people . for kings we had and were free under them above a thousand years before caesar came upon us , if polydore virgil misinform me not , and thus we have continued down all the reigns of the princes almost six hundred years , ( the common and statute lawes of england , with the allowance of customes local , ) yea , and the super addition of ecclesiastical lawes not contrary to the lawes of god and the lawes of the land , civil law in the cases of matrimony , probate of wills and maritime affairs , serving all in their respective places to the continuation , and convenient carrying on its administration , and to the prevention of any thing that might justly be suspected contrary to the same . yea , when the happy accession of king iames to this crown , whereby in his person , and the matchless and incomparable descendants from him , the crown of scotland was united to this , when , i say , his wisdom thought upon an union of lawes as well as of empire , and took so much pains in it , that he prevailed to have the stat. iac. c. . passed to empower commissioners to consider of it ; yet this endeavour , though professed by him to be far from his royal and sincere care and affection to his subjects of england , to alter or innovate the fundamental and ancient lawes , priviledges and good customes of this kingdom● , and apprehended by the lords and commons in parliament to intend no more , or seek no other changes or alterations , but of such particular temporary or indifferent manner of statutes and customes , as may both prevent and extinguish all and every future question and unhappy accident , &c. notwithstanding the union had this declaration concurrent with it ; yet because the resolution of the english were to preferr their lawes and customes above any others , and to yield to no title of alteration in them , thereupon by the iac. c. . the things which were to be done by force of the stat. iac. . were capacitated to be performed in any other sessions of the parliament of . and by the iacob . . all lawes of hostility between scotland and we were repealed , and the stat of r. . c. . included , and that was all that came of the desired union : for it was resolved by the judges ( sir edward cook being the king's attourney-general then , and being then and there present , reporting their resolution ) that anglia had lawes , and scotia had lawes , but this new erected kingdom of britannia should have no law. since then , the assent of the subject is necessary to change lawes , not onely common and statute ones , but local customes and tenures ; and without it the kings of england have given their subjects leave juridiquely to say , they cannot by the power the law understands them to have , at their pleasure alter them ; it followes in confirmation of our chancellours words , that the government of england is a paternal , as well as a regal government , and that the lawes of it cannot be altered , but by the king with assent of his subjects in parliament . tallagia quoque , & caetera onera eis imponere , ipsis inconsultis ; quale dominium denotant leges civiles , cùm dicant , quod principi placuit legis habet vigorem . this followes unavoidably from the premised matter ; if the king cannot change the laws other then by parliament , then the lawes not allowing any charge on the subject , other then is laid in parliament on them , as sir edward cook our law-oracle makes good , tallages are out of doors and illegal to be laid upon the english subject . and therefore all our good princes have disown'd and disclaim'd , as other fierce and grating ones have imposed them : hence some think those granted in the parl. of h. . were hard ; for walsingham sayes , there was coucessa regitaxa insolita , & incolis tricabilis , & valde gravis ; and he tells us he would have described it , but that concessores ipsi , & auctores dicti tallagii , in perpetuum latere posteros maluissent ; yet he sayes , though they did what they did , they cautioned it should never be drawn into example , nor the evidences of it be in the treasury or exchequer , but after the receipt of the income of it , all the memorials of it should be burned , nor any writs or commissions be revived or sent out to enquire the value of it , thus walsingham : this i confess is a matchless president , but usually 't is otherwise ; for they being presumed never to grant without cause , in their so doing , the people are to submit and pay willingly ; for princes ever acknowledged pecuniary supports from their subjects , the fruits of love ; and their subjects declared ever themselves in reason , religion , and gratitude obliged to yield them . and therefore as wise parliaments have ever calculated prince's affairs and supplyed them with counsel , and money to carry them through with honour and success : so gracious princes have been thrifty and sparing of receipts from their subjects , being willing rather to pinch in their personal and pleasurable accomodations , then either spare from the publick concerns , or press their people beyond their good wills and reasonable powers ; and regular princes have had reliefs by the pleasing wayes of subsidies , disms , quinzims , and the like , generally consented unto . and the subject sometimes having found privy-seales good security , has lent money on them as men do on other securities ; and when it s a voluntary act , there is no injury done , volenti non fit injuria . but tallages or loans of compulsion , or such things not laid by parliament more majorem , the subjects of england have ever regretted . and of this nature were these tallages here spoken of , a word made latine from the french taille , quod vectigal significat ; this word tallagium , is in historians ranked with exactiones , to shew the execrable nature of them . in the council of lateran amongst other complaints made by the clergy to the pope against the laity , this is one that they did tam ecclesias ipsas , &c. burthen the churches and churchmen with tallages and exactions . tallage then as it was an imposition , so an imposition on land , called otherwise hydage ; anciently it was taken by some kings of england upon all land , where not exempted by grant , as the lands of st. augustine in canterbury was . it was a charge on every hyde of land ; which hyde contained not acres of land , as polydore virgil mistakes himself , but . which they in those times called a plough land , that is , enough to employ a plough ; so h. . in anno . sent out justices of inquiry into all shires , who , upon the oaths of men were to inquire quot iugera , &c. what quantity of acres of land in every village , imployed a plough ; and m. paris adds , and how many cattel would till a hyde of land , and their return was an . acres . so that this proportion of land was upon all occasions the subject of this charge ; sometime many hydes of land were jointly charged , so etheldred in anno . to oppose the danes , charged every hydes with one ship , and of every eight a coat of mail and a head piece ; the conquerour charged every hyde with . s. so rufus to enable him to hold his right in normandy laid . s. on every hyde ; henry i. towards the marriage of his daughter charged every hyde with . s. these and the like , as danegeld , lestage , stallage , are by historians called exactiones , and never had acceptance from the people of england when they were not consented to , and charged on them by parliament , but things of foreign president ; and therefore put upon them contrary to the lawes of their freedom , and not suitable to the calm government of their princes , who have delighted more to be accounted indulgent fathers , then rigorous lords : yea that tallages may appear odious , ( as un-parliamentaryly imposed ) that answer of the clergy of england to pope innocent , anno . is remarkable ; for when the bishops were by his command to exact of their clergy tallage , they were commanded by the king to resolutely and unanimously answer , that no such tallage or aid could be or had been accustomed to be laid without great prejudice to the dignity of their sacred sovereign , and the dignity of his crown , which they would not , nor could not siffer to be disparaged or injured , as thereby it would . and when h. . so ruffled his subjects , that they thought not fit to deny him in parliament a grant of unusual loanes and tallages ; yet so unwillingly did they do what they did , and so against their minds , could they have avoided it , that they made a saving of the subjects liberties , and inserted it into his charter , quòd illa exactio vel aliae praecedentes non traherentur in consequentiam . eis imponere , illis inconsultis . this is added , to shew that the law cannot be reasonably such as tyes up lawful power from alteration of it , if it appear to be useless or inconvenient ; yea , be the law what it will , if it be such as i will not take benefit by , and in so doing am not injurious to others , the law intends not the restraint of me by it . the law is , the king cannot take my goods without my consent , or rate my land , but by a legal rate : yet if i will freely pay the king out of my estate so much , and give him such of my goods , i may do it notwithstanding the law , for that and this are consistent ; that being made for my benefit , if i will accept it ; this being a testimony of my love and consent , which abates the injury , and makes the acceptance a courtesie . hereupon , though the king cannot by his own pleasure lay tallages upon his subjects , yet by their consents he may , and no grievance is it , no oppression in it , since volenti non fit injuria , and nothing being more free then gift : if they in parliament consent to it , then it 's a legal charge ; and this the chancellour mentions , to tell prince and people , that extraordinary courses are not to be practised , where legal and warrantable ones may be brought about ; and to tell them further , that the way to serve princes affairs , and the just ends of parliaments , is to compose parliaments of religious , sober , sincere , and knowing members , who will be diligent during the time of their service , who will be sober , that they may serve the king and satisfie the people , and who look for no result but god's blessing , the king's honour and safety , the peoples good , in which their and their posterities goods are involved . these so fitted to every proper judicial purpose ( as they will lay no charge , but ex praevisa ratione , as did the parliament of e. . on which words of the preamble , a son parliament general , sir edw. cook has this note ] so called , because all the laws then made were general , and that great and honourable assembly were not entangled with private matters , but with such onely as were for the greatest good of the common-wealth ; for the end of this parliament is , pour le common profit de saint esglise & del realm : ) so in their so doing , the people will rest satisfied and the crown have its dues willingly , and in good time paid and answered ; otherwise it comes like drops of blood , which a generous prince cares not to have come into his coffers : for as god loves a chearful giver , so do princes love presents offered them freely , as well as fully . and therefore the provents of tallages , and alia onera , such as are all preterlegal charges , not warranted by common-law , custome , and concession of parliament , have been little addition to the real grandeurs of their obtainers , because what they gained by them , they lost in the good will of their subjects . hereupon h. . made a charter to his people in these words , quia regnum oppressum erat injustis exactionibus , &c. he promises to take away all ill customs , by which the kingdom of england has been oppressed . for there is nothing that has sown such cockle and tares of trouble in this nation , as unusual taxes , i mean such as are not granted more majorum . for though the commonalty may be wary whom they send to parliament , to represent them ; yet when sent they are , the charge they consent to lay , must be paid by them : nor is it violence to exact it , but right to the law of its constitution . and since no wise representatives can be presumed to give more then they are in their principals able to answer , supposing the granters wise men , and if not so , the more unwise their choosers and impowrers ; and supposing the grants in such a proportion , as is suitable to the rational motives of them to grant it , the matter and kind of the grant must be made good , and this they are charged withall , ipsis consentientibus , and that is non invitis . quale dominium denotant leges civiles , cum dicant , quod principi placult , legis hab●t vigorem . this sentence cited out of the civil law is ulpians , and the application of it is thought to fix the power of absolute regality , upon whatever is of subjects for it to take hold of , which perhaps is not the lawyers meaning , but with some restriction ; that kings do not make laws upon their own wills , but as assisted in council by their learned and sage counsellours , who advising them what to declare law , accompany them also in a mild interpretation and execution of it . for so the same law qualifies the generality of this rule by that omnia sunt principis quoad jurisdictionem & protectionem , non quoad proprietatem ; and therefore though in absolute regalities , where no laws of modification are , this rule is made use of to warrant high courses ; yet may this have a calmer interpretation in the nature and intendment of it . a woman is under her husbands plenary power , he may do with her , so he destroy her not , as he please ; her person is at his pleasure ; her fortune subject to his dispose ; her allowance and manner of living solely to the quantum & quale of his proportioning them : yet no wise man will hence conclude , that husbands do , where good , improve this to a tyranny over , or a vexation or diminution of their wives ; rather wise men know , and worthy wives finde , that from deserving husbands their virtues have all the compensations and rewards that this prerogative of the husband over them can devolve upon them , and though the nature of marriage favour the man , yet the courtesie and nature of man retorts the fruit and kindness of such favour and prelation on the wise , because she is willing to obey , she rules , and by resigning to her husband , has assignation of his right to rule by him all he has and himself too : so in the case of absolute kingship , though kings may by the high sovereignty of their dignity curb their subjects , that they dare not deny whatever they ask , or refuse what they command , because god has made their swords of straw , against their princes of steel ; and their hands are bound , when their sovereigns are loosed , and onely can be bound by god : yet that by virtue of this position , and the sacredness of it , they should so do , is no necessary consequence , though too often true . and truly , we in england have cause to sweeten this hard exposition of this rule , when we consider our princes , as true monarchs as any , and as independent on any but god ; yea , as well protected against the insolencies of subjects , as any monarchs , yet have for the most part been very calm , considerate , and ruleable by the laws of the land , and not laid yoakes upon us , but such as either , some of them , have been ill counselled to , or by necessity of affairs put upon , and have remitted , with a kind promise of not so doing hereafter . and if they have obtained consent in parliament to any thing of extraordinary advantage to them ; yet it implying national consent , ought to be accounted no pressure upon their people . kings may have necessities more then ordinary upon them , and they must have suitable supplyes for them , which if they have by parliamentary levies , they have them by undoubted legality , and the subject repines not against the prince for it , but owns the law , which by his own consent has bound him from repining , and to the payment of his proportion towards it . such a favourable interpretation then being given of this quod principi placuit , legis habet vigorem , it follows , that the rigidness of the general rule may be allayed by a particular instance of goodness . and therfore the kings of england having never made laws but in parliament ( courts that they call not only modestiae ergo antiquam consuetudinem servare , as a forreigner falsely writes , as if they signified no more , then to do whatever they were commanded to by the king ; so that ( in his words ) ¶ parliamenta regiarum magis cupiditatum larvae quaedam sint , quibus in rerum dubiarum consultationibus laborem & incommodae , in periculosis autem rebus damnum subterfugiunt , quàm ut per ca potestatem suam moderari veliut , as that malevolent romanist slanderously reports . i say the truth of things being examined , and the kings of england using such wisdom , temper , and regularity in their proceedings ) though quod principi placuit , legis habet vigorem , p●imitively had a sense of asserting kingly absoluteness , his pleasure being the law , and his word the warrant , without any abatement from princely grace and justice ; yet in as much , as in the regal government of england , tempered by the politique , there is no prerogative of just regality usurped upon , but the crown remains imperial , notwithstanding the politique composition with it . there seems to me reason to conclude , that quod principi placuit , legis habet vigorem , may be interpreted of the legal and virtuous pleasure of the king , the will of him counselled by his sages about him , though not so ( perhaps ) in ulpian's meaning , or the common intendment of civilians by it , which is the reason why our text-master applyes it as here he does . sed longè aliter potest rex politicè imperans genti suae , quia nec leges ipse sine subditorum assensu mutare poterit , nec subjectum populum renitentom onerare impositionibus peregrinis . this the chancellour adds in the positive , as before he had in the negative asserted the indulgence of the english government , which he was the more bold to write upon . the king of england being not a prince of rage , as caracalla was but a father of mercy , who delights to hear his duty modestly remembred him , does not do by his papinians , as caracalla did , destroy them , because they will not destroy conscience and truth , the image of god in their souls ; but cherishes and considers their counsels , and steers his course by them ; which lenity , makes the chancellour , and me by this example , humbly bold to proceed in the modest explication of the words ; sed longè aliter potest rex , politicè imperans genti suae . in which words , our text-master joyns political power to absolute regal , and sweetens the potest , that is solely voluntatis & placiti , by that which is politique , and secundum dictamen juris . for wheras by absolutenes of power , a king is understood to do what he pleases with the laws , and people of his government , as the eastern monarchs at this day do : by this the king can do onely , quod de jure potest . this king iames of blessed memory sets out notably in these words : the one ( says he ) acknowledgeth himself ordained for his people , having received from god a burthen of government , whereof he must be accountable ; the other thinketh his people ordained for him a prey to his passions and inordinate appetites , as the fruits of his magnamity . this is a longè aliter potest , no degradation of majesty , but an attenuation of greatness to a more placid , and less terrible representation of it self . while as god , though he can do what he will , yet is pleased to give us leave to say , he cannot do what is contrary to his nature , not often does contrary to his declared will : so princes , though by that men call the incircumscriptions of their boundless authority , they can do extraordinary acts of greatness ; yet god so deals with them , that the laws of their governments are the usual methods of their administration , & contrary to , or beyond them , they do not ( as goed kings ) pass ; and contzen makes it good , that it is not only advantageous to the people , but also to the prince , or publique magistrate , to have no power to do some things of himself , without the consent of his inferiours , and he makes the first thing to be , that he put no new charges , tributes , and tolls ; and the second , that he make not new laws , nor abrogate old without them . and this , had it not been for the quiet and interest of our princes , as well as of us their people ; they who knew so well the arcana imperiorum , would never have been so zealous imparters of the power , and so faithful maintainers of it in its right channel , no one king of england , that i remember , ever claiming absolute regality separate from politique infusion . ( i do solemnly promise in the sight of god to maintain the just priviledges and freedom of parliament , and to govern by the known laws of the land , to my utmost power ; and particularly , to observe inviolably the laws consented to by me this parliament . let your liberties , properties , priviledges , without which i would not be your king , be secured and confirmed , and there is nothing you can advise me to , i will not meet you in : ) but acknowledging any think like it an errour in him , through the suggestions of ill counsel , and cautioning against its being brought in president for time to come . and therefore as the law has secured , that the king should not be diminished , and made praecario regnare , sed ubi justè & secundum leges imperârit , summa illius sit potestas ; making him in his great council and courts judge of all , ( and requiring the allegiance of all his lieges to his person , as the living law. ) so has the law obtained from the king , leave to modifie things between will and law , and to make them both a composition of harmony , and kind understanding between soveraignty and subjection . the truth of this is collectable from the words of h. . sirnamed beauclerk , in his letter to pope paschal , notum habeat sanctitas vestra , &c. your holyness ( quoth the king ) knows , that by god's blessing on my life and reign , the prerogatives and usages of our kingdom of england , has not been diminished or usurped upon : and if i ( which god forbid ) should consent to mine own , and the nations eclipse therein , my peers and the whole people of my realm , would by no means endure it so to be . and so in the letters of the nobility of england , by assent of the whole commonalty assembled in parliament at lincoln , the words to the pope are , we are bound by solemn oath , to the observation and defence of the liberties , laws , and customes of the realm of england , which with all our power we will ho'd fast , and secure with our utmost vigour ; neither do we permit , or will we permit ; neither will we , or ought we to pass any unwonted , undue , and prejudicial things to our king , though he would pass by them , and should favour the same . and the reason they give of this their adhesiveness is , because the premises do manifestly tend to the dishonour of the crown and dignity of the king of this land , and to the subversion of the state of the said kingdom , and to the prejudice of the liberties , customs , and antient laws of the same . thus in that letter ; which shews , that the kings of england have yielded their subjects a non-assent , if they should attempt to alter laws , or make them contrary to the legal establishments ; and this comes up to the chancellour's words , nec leges ipse sine subditorum assensu mutare poterit . and * carrarius makes it plain by all authorities and acknowledgments , that princes are bound by the laws of their governments . and as it is not kingly in them , contrary to those laws , to take away any thing that is their subjects , as saint thomas plainly proves , so especially not their laws ; nor , as i said before , has it ever been justified by any king of england so to do , but the contrary , and that in relation to the law , which says , no law in being , whether common-law , statute-law , or custome , upon which inheritances depends , can be changed by the king alone , or by the lords and commons alone , or by the lords lay and commons , excluding the spirituality ; but by the king , as the head of the three estates , the lords spiritual and temporal , and the knights , citizens , and burgesses , in the commons house in parliament . these must co-operate to the change of a law ; and without they do , no law can be changed ; nor can any custome , though but local , upon which title of land or such like interest of the subject dependeth , be destroyed , or be legally taken away , or made null , but by act of parliament ; which how to pass ( besides the prementioned authorities ) the th chapter of doctour and student sets forth . and hence it is , that in all commissions of oyer & terminer , &c. these words are in the king's commission to his justices , facturi quod ad justitiam pertinet secundum legem & consuetudinem angliae ; which shews , that the laws are , as enacted , so commanded by the king to be executed according to law and justice , and this makes the chancellour's next words true . nec populum renitentem onerare peregrinis impositionibus . this expatiation of the former non potest , produces this clause , as full of emphasis's , as words , populum ] that 's a word of capacity , more then gentem ; for gens signifies a kindred and relation ; but populus imports a whole people ; not onely the plebs , and obscure part , but the best , noblest , and most honourable ; and the intent of the chancellour , is to shew in the generality of the phrase , the extent of impositions to all , high and low , noble and mean , church and lay-men ; all are under the term populum renitentem ] as supposing , that naturally men reluct charge , and subjects usually publique ones : if the people be willing to pay what is laid on them , the text does not reach their willingness , nor debar them of it ; but it priviledges them , unwilling to be compelled otherwise then by law. for as no man can be compelled to serve against his will any command , extra patriam , because that is to exile him , and make him perdere patriam , which the law so makes his , that he cannot be , other then by judgement of law , without his consent severed from it , as was determined in sir pembrugh's case ; so in his countrey can no man be imposed upon , either in person or estate , other then as he is willing , or according to law , stat e. . c. . and the reason is , because that is onerare ] and burthens , the law eases , lays not on any shoulders . and for our kings , the law otherways provided . they had their custuma antiqua sive magna granted to edward the first , and their custuma parva & nova . they had their butlerage , prisage , and tunnage and poundage , from the latter end of h. . to king iames , to whom it was granted for life . they had quinzims , fifteenths , tenths , and these were accounted truly theirs , and no burthens , because legally founded . for as whatever the law lays on the subject , is in our texts sense no burthen : so whatsoever is without , and against the law laid on him , is nothing less then a burthen ; and that he submitting to unwillingly , and wishing no good with the obtaining of it from him , it often appears little advantage to the princes that acquire it . walsingham tells us a notable story of the lack-learning parliament , which gave so great a wound to the church , that when ( possibly by their irritation ) sir iohn cheyey , and his military comrades , desired of the king the lands of the norman abbies in england , in recompence of their service , god gave the then arch-bishop of canterbury such a successful zeal for the prosperity of the church , that he ( prelate-like ) couragiously obtested against it , telling them to their faces , that they did it to satisfie their covetise ; and assuring the king , that if that their execrable desire were accomplished , he would not be richer one farthing the next year ; and sooner will i ( said he ) have my head cut off , then submit to lose the rights of the church . and the reason was , because it was imposition , not concessio , a fruit of their importunity and ill advice , not a grant after judgment , considering what , and why to do ; and peregrina , not more majorum ; and hence relucted , as dangerous and of ill president . for , ¶ the common-law hath so admeasured the prerogatives of the king , that they should neither take away , nor prejudice the inheritance of any ; and these monopolies being malum in se , and against the common-laws , are consequently against the prerogative of the king ; for the prerogative of the king is given him by the common-law , and is part of the laws of the realm . so that the sense of the chancellour is , that no charge , but what for its nature is usual , and for its authority is legal , is by our text to be laid on the subject contrary to his consent , that is , other then by parliament , which onely can naturalize these impositiones peregrinae , and make them passable ; and without which , as lewd women of pleasure , are by donatus termed peregrinae , and valla opposes peregrinus to hospes : so do the laws of england brand impositions of this kind , as spurious and rejectitious , and all good princes have abhorred to exact them , after they have been informed the ill nature and consequence of them . quare populus ejus libere fruitur bonis suis legibus , quas cupit regulatas , nec per regem suum nec quemvis alium depilatur . this follows , to shew the benefit of good laws , . by which just princes suffer themselves to be bound . all tallages , burthens , or charges , put upon the subject by the king , either to , or for the king ; or to , or for any subject , by the king's letters patents , or other commandement or order , is prohibited ( by e. . and . e. . ) unlesse it be by common consent in parliament . and hence , because the kings of england do not claim power over their own laws , or their own subjects purses , but according to law ; it comes to pass , that the laws of freedom , in both the former cases , and all the descendants from them , remain firm , and are not attempted to be violated ; nor can by the wit of man a safer way be found out to preserve the virgin purity of laws in these points , other then by setling such revenues upon the crown , as well husbanded , will amply satisfie the necessities of it . if the king wants , the state wants , and therefore the strengthning of the king is the preservation and the standing of the state , and woe be to him that divides the weal of the king from the weal of the kingdom ; and as that king is miserable , how rich soever he be that reigns over a poor people ( for the hearts and riches of the people , are the kings greatest treasure ) so is that kingdom not able to subsist , how rich and potent soever the people be , if their kings want means to maintain this state ; for the means of your king , are the sinews of the kingdom , both in war and peace . for since princes have great cares , charges and sluces of expence , and want of money is such a dishonour to a nation , and defeat to the politique affairs of it , as nothing can be greater : it well becomes princes in reason , as it is commendable in policy , to supple their subjects to such settlements , and subjects of loyalty and wisdom ( to such unquestionable good ends , as preservation of peace , and interest abroad and at home ) will easily consent to it , and think they do god and their countrey , as well as the king , good service in so doing . and by this means do they prevent all attempts of the king by his agents and ministers , to supply himself extraordinarily when he has of his own , whence he shall be enabled to defray the expences of his crown . this , i suppose , is the reason of the establishment of that constant revenue of the customs on our now gracious soveraign during his life , and the other additions , to make up a constant revenue of li. a year . for though by the stat. i iac. . rehearsal is made of subsidies on all goods , which h. . h. . e. . queen mary , queen eliz. had and enjoyed by authority of parliament ; yet the grant of tonnage and poundage , &c. for defending the seas , was even then thought a small revenue for so expensive a purpose , and this was but during the life of king iames. after i find no perpetuation of it , but caroli , c. . four entire subsidies are granted by the temporalty , to supply the king 's weighty occasions , more then his constant revenue can supply ; so are the words of the statute . so that tonnage and poundage , being as some thought before our troubles , not setled by act of parliament , but taken away by the statute car. . in anno . by which act ( more saith the king in his speech the of iune . was granted of his right then ever was by any of his predecessours ) the revenue of the king was but meanly provided for till this settlement ; which truly all things considered , will appear to be , though a great , yet a wise and worthy one , and as is by wise-men believed , no more then the necessary expences of his majesty will require . and if it do prevent the inconveniencies of neediness , ( one of the most worrying mischiefs to greatness ) the subject will have great cause to pay willingly , and joy in the prudence of so convenient a settlement , as will prevent what follows , peeling and polling of subjects . nec per regem suum , aut quemvis alium depilatur . this follows , to shew that though the king , quâ king , can do no wrong , yet necessity may make him so give way to the injuries of his ministers towards his subjects , that they may in a sense become his , since qui non prohibet peccare cum possit , jubet . now though true it be , that our kings have ever considered ; first , an liceat ; secondly , an expediat ; thirdly , an deceat , in what , for the most part , they have done , and have never been of aemilius censorinus his mind , who was so grievous to his government , that he would reward those that invented new and unheard of punishments for his people : yet is it also true , that in some of their reigns too much advantage has been given to discontent by monopolies , and new courses of raising money , which ( good kings ) they have made little profit in the end by . of these illegal courses , walshingham relates in e. . that he did ponere maculam in gloria sua , and that his rage against walter langton , his fathers treasurer , was such , that he seemed to be erectus in tyrannidem , unde mox contraxit infamiam perseveraturam temporibus diuturnis . this the law frowns upon , as contrary to the nature of english freedom , and thereupon by the statute of iacob . c. . it is declared a grievance and inconvenience to the subject , contrary to the laws of the realm , &c. and remedy is given against it ; yea , our kings have taken great pleasure in releasing grievances : so did henry the first , edicto statim per angliam misso , injustitias à fratre , & ranulpho institutas prohiberet , aliquarum rerum moderationem revocavit in solitum . for they remembred , that a wrong it was to oppress subjects that are bound to obey , and that god , whose to do right is , would be the helper of those in distress , and the punisher of their distressours : so true is that rule of saint thomas , multum timenda & cavenda est rapina principi , & in se & suis collateralibus inferioribus , multum enim est deo , & sanctis exosa , diabolo placida , homini nociva , &c. and dreadful are the effects of god's judgment on evil princes , as the same saint thomas makes out in the particulars of its misery . now depilari signifies , in our chancellour's sense , a diminution , or taking off the good nap and rich covering that an english-man has , and not onely shearing , but shaving him to a baldness of poverty and servility . for depilatio was the dishonour of slaves , as covering the head was token of enfranchisement : and truly , to reduce the subject of england to such a condition , as to be naked of law and property , was too much for the stout stomach of the men of kent to bear in the norman william . for when they were begirt by his army , they then resolutely told him , and his normans , that they would wage a fierce war with him , being resolved rather there to die the valiant assertors of their laws and liberties , then to submit to the loss and antiquation of them . and sure such an aegon , as had an eagle greatness in his kingly breast , would not aim at so mean thoughts , as to dishonour his own people , by depilating them : yet fierce man as he was , he did depilari , both in france and here , and he paid dear for it on his death-bed : and justly deserved he to be bereaved of a subterfuge in the mercies of god , who had so much of mercyless savageness to men , himself in nature , his subjects in relation , and his vassals in misery . the chancellour then uses depilatur , to express the cruel nature of kingless exaction , which ought to be so much the more inveighed against by a subject to the king of england , because it has been much against his dignity , ( so no princes ever in the world have been more merciful , less pressing on their subjects , then the kings of england ( for the most part ) have been . and therefore depilatur is brought in here , as that which is looked upon to import dishonour , since hair is an ornament to the head , the noblest part , and 't is the emblem of the vigour of nature , which some lose upon decay of succulency ; or as a punishment for some enormity . among the iews , the nazarites men sacrated to god , were not shaven , no razor came on their head , and absalom's hair so large and thick was his ornament , rendring him acceptable with all israel . the lombards thought shaving of the head the greatest and most opprobrious punishment , saith alvarotus . among the saxons , to shave off the hair , and make a man ball'd , was the punishment of theft ; and if a woman were incontinent , she was shaven ; so if any one pulled off anothers beard , he was punishable , and baldus gives the reason , quia barba est membrum in homine ; and he that considers , that iulius caesar took it for a favour from the senate , that he had a crown granted him to wear , by which he covered his baldness ; and carolus calvus was named so , not onely for distinction , but in a sort of reproach ; and the mother of the sons of clodoveus , the first christian king of france , chose rather to have their heads cut off , then their hairs polled . he that considers this , will easily grant that baldness , this depilati● here , intends such a peeling and polling , as amounts to not only poverty , but dishonour ; thus the iews took baldness . as this is collectable from that scoff of the children to the prophet , come up you bald-pate . the hebrews therfore rendred this by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a word that signifies to pull by the roots , radicitus evellere , and it implyes not onely enmity in the doers , but pain in the sufferer , isa. . . i gave my back to the smiters , and my cheeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to them that pulled off the hairs , that is , to violence and cruelty in the high actings of it . thus this text is applyed to christ as prophetical of his sufferings , and fulfilled in them : so that the chancellour by his depilatur , means such an impoverishing of the subject , as renders him naked of all plenty and beauty , and exposes him to be in the nature of a villain , under the lash and pleasure of his lord , as horses in a team are . for so cowel interprets the word theam , regale privilegium est , quo qui fruitur , habet villanorum , id est , servorum & mancipiorum intra feudum sun●● propaginem & potestatem de illis , ut de caeteris suis seu liberis seu bonis mobilibus vel immobilibus , pro libito disponendi : so he . and this i am sure has been so unlike the royal mind of our princes to endeavour , that they rather have desired to add to our freedom and riches , then detract or impair them . consimiliter plandit populus sub rege regaliter tantum principante , dummodo ipse in tyrannidem non labatur . here the chancellour shews , that where regalities own no national laws ; yet if they restrain their power and wills , to prize justice , and gratifie not their passions above general good , and so tyrannize over their subjects , making their lives grievous them , there also people cannot choose but be happy . this the grave historian xenophon notably confirms , tò 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that government which is over men , willing and readily submitting to the same , and wherein the laws are the measure of rule , is called a kingdom ; but where men are ruled by no law , but by the will of their ruler , against their own wills , this is a tyranny . for there being no governour , or government , but acquiesces in those common notions of order and justice , which interfere not with power , but co-operate with it ; it must needs follow , that subjects under such a government , though never so tart and severe , yet if it be just , shall not ( while they continue wary and worthy ) find any grievance of the power , but find a blessing in , and from it . for it is not greatness of power , that betrays men to abuse of it , but their own corruption , which thence takes occasion to vexatiously exercise it . and this is the rise of all tyranny , when men obtain power to eliminate virtue , and that once discarded , to become monsters and tygers in man's flesh , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. for reason and wisdom residing in a prince , and being ( as it were ) the keeper of his soul , whatever in his power is dangerous , it sweetens and allays and leaves onely the kind and useful parts of it for him to express . against which abuse of god's bounty in princes p●elation , there is no more expedite a cordial and defensative , then to consider god the lord of all , as a resister of the proud , and a giver of grace to the humble , and take a resolution to practice such a dominion over ones own minde , as may reduce it under the empire of reason and justice ( which bias expressed , when he wept upon condemnation of a man to death , and one asked him why he wept for what he had occasioned , his answer was , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. because 't was necessary that the affections of nature should give way to the directions and commands of the law ) so to do to others , as they would have others do to them , and then to propound such presidents of equanimity or rather magnanimity , as are famous in their kind in men of great place and opportunity . 't was a rare demeanour of aelius pertinax which we read of , when the romane senate besought him that he would call his queen augusta and his son caesar , his reply was , sufficere , inquit , debet quod ego ipse invitus regn●vi quum non mererer , nimis aequissimus , omniúmque communis ; yea if so great ingenuity be in the soul of power , it will not express it self to any heigth , but what is consistent with general content and common advantage . i do not read that solomon's reign had any thing but plenty and blessing of the king , yet solomon's power was in a sense absolute ; nor that constantine , marcus , antoninus , or trajans reigns were branded with ought oppressive to their subjects , though they had all the absoluteness , that just kings could have . so long as there is a noble heart and a vice-less mind , which to gratifie greatness descends not beneath it self , there is no danger : nay so long as lawes of mitigation , gagg'd by religion , have onely the force of remembrances to princes ; subjects are more to pray for good princes then good lawes . for there may be good lawes in a nation , where under a bad prince the subject may be miserable , but under a good prince bad lawes seldom do hurt ; for his goodness prevented their ill influence , and wholly annihilated them by superinducing lawes of remedy and relaxation . and hereupon conscience being under the aw of religion , and the law of god binding subjects from capitulation and violence , to prayers and tears ; if the lawes be good and the prince so too , all is sure to be well ; but if otherwise , and they must be parted , better a good magistrate over bad lawes , then good lawes under a bad magistrate : for so it follows . de quali rege dicit philosophus tertio politicorum , quod melius est civitatem regi viro optimo quàm lege optimâ . this maxim of the philosopher , is , i suppose to be accounted , true upon consideration of two things . first , that good men were more ancient then good lawes ; for good laws were invented by good men , instituted by god in providence to the declension of men from rectitude , as conversation and discovery of the world occasioned their warp : for in patriarchal times , & in the innocency of the golden age , nations and continents submitted to one or few in whom they saw most divinity and heroiqueness , and from those did they willingly receive the rule of life and all the prescripts of their publick and private concern ; and when to such rulers and law-givers there was no law but their own wills , no question of their commands but presently they were obeyed ; yet even then did the virtue of these chiefs and patrons keep them from tyranny , and affectation to themselves with injury to the publick . but when once vice had boyled off the grain colour of virtue , and there was adoration given by men to the idols of pomp , power and magnificence ; then there was a necessity to limit encroachments , and to impede advantages against popular credulity by politique sanctions , and to make those accessable to rule , who were most demonstratively just , and had the most generous and open latitude of epidemique justice in them , which policy made all men of emulation candidates to gouernment , and those onely sure to have it by publique suffrage , who had the most pure and publique spirits in them . secondly , better good kings and rulers then good lawes , because good lawes are nothing without good kings and rulers that execute them ; alas ; the law is but a dead letter , 't is the minister of it that quickens it , without him the best laws are but like medicaments in the apothecary's shop , unavailable to the sick man , who dies notwithstanding them . indeed as demosthenes said , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. lawes are the soul of governments ; but what are souls without bodies in which they move : israel had good laws in ahab's , rheheboam's and other ill kings times , but the nation was never the better but the worse for them , because god was more provoked by them , as they were not improved aright under evil kings , and thereupon all people are to pray earnestly for good governours , that under them they may live peaceable lives in all godliness and honesty . for as it is not fire in the hearth that makes warm ; nor air in the sky that carryes to the port ; nor light in the candle that enables to read ; nor money in the purse , that feeds man , unless they be adapted to us ; and we within the sphear of these , whereby they may properly effect their end upon us : so is it not good lawes that felicifies a nation , unless they be made happy by a good guardian and defender of them . isocrates calls evagor as such an one , for his empire was so moderate and just , that all his life time in it he led 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. without injury to anyone , honouring the good , ruling over the bad , and punishing evil men onely according to the lawes ; for such an one will not onely execute good lawes in being , and suspend the rigour of ill ones , till they can be repealed ; but festinate the substitution of good lawes in room of ill ones , and remove the snare in which subjects may be harmfully caught ; and hence good kings are called fathers of their countries , because as they do ignoscere delicta , so do they agnoscere debita ; and if iheir children ask them bread , they will not give them stones : if fishes , not scorpions : and this the philosopher said was the end of kingdoms , which were to preserve virtue from the rapine and prey of multitudes , . the extravagance of which ends in tyranny . for if all things followed the suffrages of popularities , there would be more iews in vote to crucify truth and depose its regency in the minde , then cryers out for it ; because the whole world lyes in wickedness . and hereupon though good luwes are rare blessings in themselves , yet compared with good kings , they are less blessings ; because kings are the executioners that make them what they are in their exercitial goodness , and upon this ground i suppose that of pythagor as is notable , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c , that was the best of cities , which had most good men in it . it is then a truth , that good rulers are better then good lawes , because they make good lawes , and execute good lawes when made , and that with such moderation as argues them wise and worthy masters of their own mindes , and thereby not tempted to injustice ; which dioclesian eminently made good , for though he were no friend to christianity but a vehement impugner of it , yet he was successfull and great in esteem with his souldiers , subjects and confederates , and the first of all the roman emperours that resigned the empire to lead a private life ; and the historian sayes , he had a suitable honour done him for his temperance , of all private persons of his time he onely was deified . for surely , he that could leave so great a command contentedly , without doubt used remarkable justice in it ; for had he delighted in making his will the law of his government , he could not have willed his diminution , and proposed alone when none other did or durst , his own discharge from that royalty into the degradation of a privacy : but god dealing with the haughty nature of man , does by his distillations of restorement , and through the liquefactions of virtuous candor , so incline great mindes , that they can deny themselves contentedly , to benefit others certainly . thus did a matchless monarch , whose words were but the report of his deeds , i studied to preserve the rights of the church , the power of the lawes , the honour of my crown , the priviledge of parliament , the liberties of my people and my own conscience , which , i thank god , is dearer to me then a thousand kingdomes . and this is the cause of the philosophers position , that better it is to be ruled by good men then by good lawes . sed quia non semper contingit praesidentem populo hujusmodi esse virum , sanctus thomas in libro quem regi cypri scripsit de regimine principum , optare censetur , regnum sic institui , ut rex non liberè valeat populum tyrannide gubernare , quod solum fit , dum potest as regia lege politicâ cohibetur . this book of saint thomas , is amongst his opuscula , and 't is a most nervous and pious tract of policy , which he , or as some think , aegidius romanus , wrote to the then king of cyprus , to manifest his love to him , in a right conduct of him through all the passages of government , and the duties , that as a governour he was to express to his people : and the sense of this passage , here by the chancellour quoted , is out of the second book , the eighth and ninth chapters ; and it is according to the suffrage of reason : for because the will of men in power was found to degenerate , by the temptations they in their prosperity had ; & the impatience of men under rule , made them flye out into furies against their governours , by reason of his severity towards , and absoluteness over them : therefore nations did treat with their governours , not always as a pre-contract to their acceptance of them , but often as a favour from them to their people ; that they obeying them so and so , should be free from such and such expressions of their power . and this mutual understanding , being formed into a law , makes the politique alloy to the absolute regal soveraignty , which he here ( as considering it inconsistent with laws ) opposes to it . and truly , if there be any probable means to preserve majesty and mercy , 't is surely by laws ; which , though they do not oblige under humane penalties , princes , as they do private persons ; yet do remember them of a justice and veracity , which they are ever to prefer , before their passion and bare pleasure ; and that not onely in order to god , who requires truth in the inward man , but also in order to reputation , which princes are to value above other men . for , as far as a king is in honour erected above any of his subjects , so far should he strive in sincerity to be above them all , and that his tongue should ever be the true messenger of his heart ; and this sort of eloquence , may you assuredly look for at my hands . for the word of a king is the sacrum quiddam , which ought to be held inviolate : since a king that governs not by his law , can neither be countable to god for his administration , nor have a happy and established reign : so said king iames. and hereupon if kings that do own laws , do violate them , and not rule according to them ; they do somewhat unlike the lenity and grandeur of their office ; for in that they imitate god , who is just and good , and in this they contradict the attributes , which illustrate and besplendour their crowns : for set aside the good that results to governments by kings ad . ministring them , and their power will be terrible , and more feared then rejoyced in ; which that it may not be , the exercise of it by , and according to laws , is by them admitted , and the king's power and goodness exercised in his courts of justice , which are called libertates ( saith sir edw. cook ) because in them the laws of the realm , quae liberos faciunt , are administred : and in the practice of it , there is no easie degeneration into extravagancies , since laws are made by publique spirits to publique purposes of virtue , justice , and freedom ; but tyranny is the exaltation of a private peculiar humour , and will , in contradiction to , and destruction of the good of all others besides him , which eutropius says trajan so much abhorred , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. he overcame his military renown by his civil administration , and made his government as a prince , excel his dread as a souldier . so just and true did he approve of antigonus his monition to his son ; an ignoras fili regnum nostrum gloriosam esse servitutem , & qui aliter sentit neque regius nec civilis homo , sed tyrannus judicabitur . and therefore , though success , may carry princes aloft , and by them they may be happily accounted of , though they little deserve it , as did charles the eighth of france , deserve the same he had by his successes in the kingdom of naples . i say , though these may sometimes befriend princes ; yet the durablest , and most lovely stability they have , is the love of subjects , made theirs by their goodness , kindness , conscience , to govern by their laws . the old emperour marcus is highly for this , mentioned in stories . for so beloved by the people was he for his virtues , that they called him not onely the poor mans king , but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a bountiful father , and a brave king ; a fortunate captain , a moderate governour ; and added , that all this he was from integrity , demeaning himself so , that his death was a common sorrow to all mankind . and such another was st. ericus , king of sweden , about the year . who made such just and good laws ; vt non à rege in cives , &c. that one would think they were not made by a king to his subjects , but by an indulgent father for his most dear sons : which they may with reason and religion punish the violation of , in the treason and enormity of their subjects , when they themselves do not transgress the law , but keep close to the directs of it , which a gracious monarch so thinks upon , that as he desires to govern by the known laws of the land , and that the liberty and property of the subject may be by them preserved , with the same care as his own just rights , so when he willingly fails in these particulars , his integrity says he will expect no aid or relief from any man , or protection from heaven : so was the protection of glorious king charles the first . which considered in the kings of england , as parties voluntarily consenting to their own obligement , with reverence i write it , to their eternal honour , the subject is bound to return them a most faithful and just subjection and loyalty in all things , according to the duty of subjection by the laws of god and men . and he that is persidious and disloyal to his sovereign , who thus lets him be free under a just and merciful law , the free execution whereof he impedes not , but defends to that end , yea submits to in all things wherein the law concerns itself . i say , he that is other then loyal , loving , and cordial to such a prince , is a varlet ingrate , unnatural , a sinner of a cham-like unnaturalness , and thence the more abominable , because such without all provocation . and it is a very sage oracle of the laws observation , peruse over all books , records , and histories ( says he ) and you shall find a principle in law , a rule in reason , and a trial in experience , that treason doth ever produce fatal and final destruction to the offender , and never attaineth to the desired end , ( two incidents inseparable thereto ) and therefore let all men abandon it , as the most poisonous bait of the devil of hell , and follow the precept in holy scripture ; fear god , honour the king , and have no company with the seditious : so he . gaude igitur princeps optime , talem esse legem regni in quo tu successurus es , quia & tibi & populo ipsa securitatem praest abunt non minimam & solatium . this is well subjoyned , to excite the prince to a just return to god for his favour , in giving him the reputed title to so fair a crown , and so flourishing a law as it was held by . indeed , every mercy should oblige a man to gratitude , and he is not worthy the air he breaths in , the earth he treads on , the meanest indulgence he enter commons with the creation in , that does not express his gratulation to the fountain of his enjoyment : but princes that have crowns put upon their heads , and are to rule by just and wise laws , have myriads of thanks to return god for their prelation , and ought to be paramount to others , in returns of service suitable to their predignification . and this is the sense of the texts gaude ; not to kindle in the prince a joviality , arguing levity , and youthful froliqueness ; but to raise him to a comfortable demeanour under so great an indulgence : so to be affected with the mercy , as to think of king david's quid retribuam ; for it is a mercy to have a law ; and gracious princes think it so , that they may testifie , that they fear : if their wills were the law , the law of god and justice would not command their wills : but to have such a law as england has , that has the marrow and best of all governments in it , and that establishes prerogative and priviledge in a consistency each with other , that asserts the king a free prince and his subjects free people ; that bounds the crown not to swallow up property and priviledge ; nor property or priviledge to justle with , or oppose themselves to the crown . this , this is matter of joy to a prince , probable to succeed his father to it ; and that because where all parties concerned , are agreed in their respective stations , to promote the noble ends of this politique harmony , both peace will be to the prince in soul and body , and comfort to the subjects in their enjoyment of their good things in peace ; which thing , in other words , was notably declared , to the satisfaction of all sides . for the then king charles the first declared this to his parliament , that those things which have been done , whereby men had some cause to suspect the liberties of the subject to be trenched upon , shall not hereafter be drawn into example of our prejudice ; and in time to come , in the word of a king you shall not have the least cause to complain . and this he calls severitatis & solaminis praestatio , both as it begets a right understanding between prince and people , and makes a gordian knot of their mutual confidence in , and corroboration each of other ; and also as it strengthens them against all the counterblasts and discomposures , which are occasioned by emergent evils ; the sense of which is unpleasing and insupportable , where guilt and envy is predominant ; which since the laws ruled by , and subjected to , do anticipate ; the chancellour , had good reason to write , as here he did , quo & tibi , & populo ipsae non minimam prastabuxt securitatem & solatium . for as fortunate courage gets dominion , so politique circumspection settles it and secures it against its retrogradations ; which severus made provision against , by that wall which he built in britain , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that he might preserve his conquests , and be secure against their relapse . for nothing in prosperity is desirable , but grace to use it well , and a perpetuation of it ; whence onely arises the comfort and content of it . and therefore as security falsely grounded , is the road to ruine , because it is exoculate and lulls men asleep in confidences of fallacy , till they be irreversibly ruin'd ; which is the reason that prudence detects it , and ranks it amongst those defects that argue fatuity and incircumspection ; whereas in the chancellour's notion it is the fruit of diligence fore-thought , and the upshot and compensation of all right conduct , and of all real wise design ; which the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in the holy language represents , when it , in the conjunction of its import , signifies boldness and confidence , past all fear , prov. . . prov. . . and is opposed to fear , because 't is that boldness which is rationally and prudentially so , upon the ground of all the lines of virtuous endeavour conducting to , united in it . this is that which the wise-man calls , the wisdom of the prudent is to understand his way ; with the well-advised is wisdom ; through wisdom is a house builded : by all which are implyed the delight of security , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , saith suidas . and therefore as all men endeavour to secure what is dear to them , their wives from force , their houses from robbery , their lands from waste , their evidences from purloining , their children from seduction , their reputation from suffering , their lives from treachery : so ought princes to secure all they have , and are by good laws and a right and reasonable execution of them ; which when they do , their subjects are sure to be quiet , and their power established ; yea , their persons so contributive to publique serenity and order , modestly deifyed ; for as no man can choose but think that prince worthy pity , who with censorinus has the character to be falix ad omnia , infaelicissi●us imperator : so no man can choose but account him an object of veneration , who makes himself a numen of preservation to mankind . and happy is that prince who turns his ears from parasites , such as were hubert de burgh , pierce gaveston , the spencers , tresilian , william de la pool , lord hastings , sir john catesby , empson , dudley , woolsey , who all injured their princes by their praeter-legal counsels ; and happy is that prince that hearkens to the laws and to such brave spirits , as with charles brandon , the valiant duke of suffolk , do good to all , and harm to none . oh! such counsellours , will make a king beloved and adored , if he will hearken to them . tali lege , ut dicit idem sanctus , regulatum fuisse totum genus humanum , si inparadiso doi mand●tum non praeteriisset . this clause i do not , in terminis , find in st. thomas ; but the sense of it i do , in these words ; wherein he does prefer politique government with regal , to onely regal government , and that he does , . si referamus dominium ad statum integrum humanae naturae , qui status inno●entia appellatur in quo non fuisset regale regimen , sed politicum : for god having so ordered man in that state of innocence , that he might not have sinned : had he continued upright , there would have been no distinction of states and degrees of men , which are the effect of man's fall and sin , nor would any have usurped over each other : but though there would ( perhaps ) have been degrees amongst men , yet there would have been a sweet harmony and condescention each to other , according to the congruity of their common and sinless condition . this i suppose , and humbly conceive , is the sense of st. thomas , which the chancellour takes from him , and applyes to the laws of england , to display in the oratory of his conception , the grandeur of his love to the laws . for no man can imagine , that these words are less then hyperbolique , though they have in their pathos a neruosity of truth , pointing out to the laws medicinality , in that it rectifies all ill humours in the mass of the policies constitution , and preserves the head in its vital pre-eminence , and the members in their loyal subserviency , in which two necessary offices of distributive efficacy , it makes a correspondency to god's institution , and carryes on his order in a regularity of method : and this i take to be the all that is deducible hence . for as no man knows what form of law god would have prescribed man , had he continued upright , because then he had needed no law , but that on his heart . for in the formality of it , law was added , because of transgression : so to say what law would have been , or not have been , is besides the meaning ( i suppose ) here . the onely use of the instance is , to shew that regal power , mixed with politique , as in the temperament of englands politie , is the best government to make both king and people secure of god's mercy , and their mutual aid and affection each to other in order to their joynt and several capacities and conditions , happyable thereby : nor is there any government in the world so true a paradise to its enjoyers , as this of the municipal laws of england , accompanied with such supplements of the civil law , as are legitimated with us , yea surely , if paradise must be in an island , as lindschotten will have it , this island of britain must be the seylon where it is , and the laws of england must be the paradise in it ; for from them doth flow that quaternion of streams , piety , order , riches , renown , which render us the admiration of all our neighbours . and hereupon methinks , i may say of our chancellour , as quintilian does of caesar's commentaries , tanta in illo vis est , tantum acumen , ea concinnatio , ut illum codem animo dixisse , quo bellavit , apparuit . so much doth my text-master say in few words , that i know not what to add to him , in commendation of the laws . for as he likens them to those of paradise the best state ; so to those of the lives under the judges the next : for it follows , tali etiam lege regebatur synagoga , dum sub solo deo rege , qui oam in regnum peculiare adoptabat , illa militabat . this relates to the times , from moses to the end of iudges ; a government of about . years ; and in all which , god used the ministration of men to rule under him , keeping the monarchy over them to himself , and entituling no man to it ; and in all this dispensation of god's goodness to israel , the people of his love and delight , whom he carryed upon eagles wings , and made the head , and not the tail of nations ; not absolute soveraignty , but a politique dispensation of himself by laws of moral equity , and prudential convenience , did god carry israel in the wilderness , and into canaan , with a mighty hand , to the consternation of all their enemies : yea , and so did he qualifie all men in deputation under him , during that tract of time , and those tedious variations , that they did not affect any usurpation upon god's indulgence to the people , but bore with them , and prevailed against the roughness and choler of their nature ( for they were people 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , of a stiff-neck , not bettered by reproof ) by their ingenuous mansuetude , knowing well that god would have it so , whose the people were , and under whom they had the conduct of them . this oeconomy of god's , our text-master proposes , as the pattern of ours in england , and ours he likens to it , similitudine vestigii , though not imaginis ; for though every thing answers not , yet in the main integral parts , in the composure of the smartnesse of absolute regal , with the bluntnesse of politique government ; there is that aimed at which makes somewhat near the lovely figure of god's government , while he ruled israel as their king , and besides him they had no visible humane king. and this speaks more then all arguments for politique government with regal : for in that god allowed , nay established it as his choice , it appears to have all those integrals of perfect government , ayming at righteous ends by righteous means , and to be equally adverse to all extreams , either of defect or nimiety . sed denoun● ejus petitione , rege homine sibi constituto , sub lege tantum regali ipsa deinceps humiliata est . this our text-master brings in , to shew how god's establishment had its supersede as not by force ; for he was a king neither to be deprived by power , or deceived by falshood , or over-reached by subtlety , or flattered by oratory : no such artillery could impeach his regality , no nor could the moth of time or periodique fatality , which determins governments and transfers them from one to another , work on his government , that was from everlasting in the root , and would have been to everlasting , not onely in a sense of divine perennity and essential indeterminateness over the whole world , as lord of the universe , but as to such a proportion as the sense of his temporal exercise over the jewes was applicable to , over them : but by condescention to their desire , and in punishment to their murmure and machination , which rather aimed to gratifie their curiosity in being like other nations , then to acquiesce in a gratefull submission to god , and a willing subjection to his deputies set over them . and the chancellour not onely sets down their sin in desiring man rather their king , then god , but the instrument of their prevalence , and the engine they imploy , which is prayer to have their government passed over to a king of flesh and blood , bone and bulk as themselves , yea and the effect of their desire they begg'd inordinately , and god gave them their hearts desire to their after-terrour . this does the clause set forth , not to depreciate their desire of a king , but to blemish their inordinate principle in desireing a king in opposition to and declension of god their king ; and therefore god , though he gave them their desires upon their requests , yet he so imbittered his gift , that it should ever carry the memorial of their sin with it . and this shews us both the corruption of nature , which delights in change , and the danger of change by reason of such corruption . not onely , man being in honour abode not , but in his prevarication became se ipso humilior , beneath the beast that perisheth ; so that not onely the principles of which nature consists being changeable , incline to change , but even the tendency of man in the lubricity of his will inclines to it , and that by a judgement of god on his understanding , that takes evil for good , and is restive in loveing and improving it to his ruine and annihilation . nor is it ever seen that changes in this militant state , without great grace from god , are for the better , but most an end for the worse ; of all the changes of israel 't is said , they changed their glory for shame : their freedom for bondage , first , to the aegyptians ; then to the babylonians ; then to the romans , and now to the turks ; and of all personal changes , little can better be said then was in that , that of all the caesars , solus vespasianus mutatur in melius , yea when people are fond on change , what products do such incests bring , but tyranny and confusion , unless god be in the change by a gracious influence on it , as he was in david's change from a shepheard to a king ; in ioseph's from a neglected younger brother to a father to pharoah and all aegypt , in saul's change from a persecutor to an apostle ; in time's change of iulians for constantines . i say , unless god be the effectual mover of changes , and fortunates them to their blessed and lawful issue , changes quà such are dangerous , and when they are gratifications and holocausts to popular levity , become plagues and torments to their promoters ; who because they are children in discretion and are led by hurry and eddy are to be resisted in such attempts , and the rods of severity are by lawes made for such fools backs . thus then it came to passe with israel , god was their king , and another they would have as the nations had ; the contumacy of israël under god's gentle empire had provoked him to conclude a punishment for them , and now their corruption gives the occasion to its operation upon them ; god gives them their hearts desire , but not to their end but his own , to be his punisher of their perverness ; and thus that which they intended the display of their triumphal banner , and a trophy of their national grandeur , becomes their breaking a pieces ; so that no grain of their pertnesse and mettle remained unpounded ; broken they were under the iron mall of their own designation : and just it was with god , that since liberty caused insolence , oppression should compel duty , and the law of god dictating to duties , moral and religious , being contemned , the will of man contrary to these , even when it commands contrary to these , as a curse on people , be in place of a law , and chearful obedience to a lawfull government being stomach'd at ; if not denyed , a lawless smart and severe one should be introduced , for the justice of god punishes sin in the kinde it is committed ; because people are voluntarily rebellious against good princes , god makes them necessarily subject to bad , who trample them and thei●s under foot . sub qua tamen , dum optimi reges sibi praefuerunt , ipsa plausit , & cum dyscoli ei praeessebant , ipsa inconsolabiter lugebat , ùt regum liber haec distinctius manifestavit . here our chancellour uses a double dichotomy of persons and things . of persons , reges optimi , and dyscoli of things , ipsa plausit , ipsa inconsolabiliter lugebat . it is concluded that good kings are better then good lawes from this ; that while good kings were over israël , the severity of regal power was not injuriously felt by the jewish people , though transferred from a milde to a sharp government ; for the text sayes , sub ipsa plausit synagoga , now plausus is opposed to planctus , and as by the one the heart 's sinking into the heel ( as proverbially ) is deciphered , so in the other the capreols and vaultings of the heart , the plaudite's and eccho's of exaltation and approbation are intended . when then the chancellour sayes , ipsa plausit ; 't is as much as pliny expresses by sibi blandiri & placere , seu nimium amare , ep. . and declares the people to be highly satisfied with their enjoyment , and hugg themselves as happy in their acquisition of a governour that is good , and to them the best , because their own . for there are two fold kings mentioned in the clause , . regesoptimi ; who are those ? not any had israel properly so ; for if there is none good but god , then no kings , at least none the best but god , who has no equal but is super-superlative ; the answer is , they were the best kings who were better then the worst , who were most good compared to others less good ; and those the book of the kings mention to be david , solomon , asa , ahaz , hizechia , iosiah , these the holy ghost records to doe that which was right in the sight of the lord ; and these , when ruled by the law of god with his sacred priests , though absolute in power , yet were so conscionable in the use of it , that the people were happy under them to their hearts wish . they ruled as octavian is said to rule , though long in time , yet little in account of people , who were so happy under him , that they thought the time run away too fast , and his gouernment would too soon end : for all the fifty and six years he reigned seemed but as one day , because his virtues made him so beloved and desired . o when princes are like vespasian , builders , beautifiers , restorers of ancient paths to walk in ; then , as vespasian , they deserve eternal memorials : yea , they will never die in the records of stories , and on the tongues of subjects blessed by them , nor will any power be begrudged them to have , who know how moderately to use it , and mercifully to manage it ; for under this plausit illa , people that are so happy , need not care for lawes and courts of appeal ; virtue , rectitude , magnanimity have set up their thrones in the breast of these princes , and they are thence propitious to all men ; and their subjects are so gratefull to , and tender of them , that they cry out , as they did to claudius , habeas virtutibus tuis , devotioni tua claudi statuam , &c. o claudius mayest thou ever have as thou hast deserved a statue to thy memory , may thy virtues be ever alive in that . he that loves the common wealth will love thee , and applaud thee as we doe ; happy art thou claudius by thy virtues , happy thou in the senate's suffrage , yea happy thou both before , and in , and after thy government and life , as no trajan , no antonine , or other prince ever was , so he ; while then they are such , they may well be accounted optimi , and their people may well se plaudere under them . hear the incomparable humility and condescension of wise king iames , as the head is ordained for the body and not the body for the head , so must a righteous king know himself ordained for his people and not his people for him ; for although a king and people be relata , yet can he be no king if he want people and subjects ; but there be many people in the world that lack a head ; wherefore i shall never be ashamed to confess it my principal honour to be the great servant of the common-wealth , and ever think the prosperity thereof to be my greatest felicity . and that 's the first part of the dichotomy , optimi reges , ipsa plausit . the second is dyscoli . and under them they are said inconsolabiliter lugere , by this dyscoli he means the wicked kings of israel , such as were saul , rhehoboam , ieroboam , ahab , i●horam , manasses , iehu , and the rest ; who involved the people in wars , and by bringing the curse of god on them , made the government under them grievous ; and these he calls dyscoli , because lawless in their wills , and not reasonably to be pleased , since their humours were their rudder , and their sensuality their compass , and this has so inordinate a swinge , that it is not restrained or regulated by god's laws , which onely sweeten the temper , and plain down the rudenesses of princes , under which subjects do inconsolabiliter lugere , and though this often be but a slow remedy , yet is all , the laws of god and men indulge grieved subjects to relieve themselves by ; which the scripture calling , possessing our souls in patience , refers us by prayer to god to turn the prince's heart , or else to endue us with patience to endure what is god's pleasure , because he often punishes popular wantonness , and seditious murmures against good princes , with real burthens , and yoaks of torment from evil ones ; and by this affliction on them works their preparation for , and engagement in national repentance . tamin quia de ist a materia in opusculo , quod tui contemplatione de natura legis natur ae exaravi , sufficienter puto me disceptâsse , plus inde loqui jam desisto . in this clause , the prince is referred for further satisfaction , and the chancellour excused from further procedure on this argument , in relation to a tract which he has designedly wrote about it , which our chancellour the authour calls opusculum , because a short and not bulky tract , and then shews his impulse to the writing of it , tui contemplatione , that is , for the prince's institution and satisfaction ; and then the matter of it , 't was de ista materia , that is , the nature of absolute regal with legal and politique government . this tract ( i confess ) i never saw , but am informed 't is in sir cotton's library , which his noble and learned son sir iohn cotton promised to accommodate me with when he could find it ; which he not yet having done , as i have not seen it , so neither can i give any account of it . i hear also it is in oxford too , as also in other hands , and i conceive it goes under the name of de politica administratione , which pits mentions to be one of his works , and he here remembers : so much was the prince , and the age , yea our age , beholding to this sage chancellour , that he refused no travail of mind , to clear the doubts that might arise in active minds concerning government and subjection . in both which cases he was as well able to give solution , as any his contemporary ; for besides that he was a profound lawyer , as his judgments in the year-books of henry the sixth , his several judicious tracts on serious subjects , and the opinion of that time of him confirmed , he was also a most just man , who in all his actions went ( as he supposed ) according to an inlightned and rightly informed judgment and conscience ; and record gives this testimony of him , that in hoc summo officio ( of his chancellourship ) tam pie , prud●nterque se gessit , ut omnem illam quam consequi poterat authoritatem , ad reipublica referret utilitatem : yet , good man , he had the hard fortune , or rather the honour in an ill time to be banished , or rather to banish himself , that he might keep himself loyal , and be near the young prince to do good offices to him . and though he was born , bred , and long lived honourably in england , yet dyed he abroad , as many brave men have done before him , and was ill treated of his countrey-men as they also were : it being not onely the fate of scipio to have an ingrate countrey , the grief of which made him lay his bones abroad ; and of tensira , whom giraldus pourtrays as the noblest man of his time , yet repudiated by his citizens , and thereupon dying privately ; but also of infinite others , whose not onely lives have been checquered with party colourings of both good and bad fortune , but have been led one where , and expired another where , nasoentem aeneans vidit simois in asia , raptum absorbuit numicius in italia , which though aventine crosses , in the example of lodwick , the first count palatine of rhene , anno . who was born , and dyed in one and the same chamber at heidelburgh ; yet is confirmed in more that dye otherways . dido was born at phenicia , but dyed at carthage ; pythagoras born at samos , dyed at metapontus , alexander first appeared at pella , extinguish'd at babylon ; the decii all born at rome , but all dyed abroad ; cato had his first breath at rome , but drew his last at vtica ; mantua saw first virgil rising , but brundusium entombed him ; yea , the famous earl of warwick , beanchamp , whose character is parem sibi in armorum strenuitate & regis regnique fidslitate superstitem minimè derelinquens , though born in england , dyed at calice , e. . and this our chancellour dyed in berry , and there desisted from his labours ; as i shall now from the commentary on this● ninth chapter of him , which here ends . chap. x. tun● princeps illicò sic ait . vnde hoc cancellarie , quòd rex unus plebem suam regaliter tantùm regere valeat , & regi alteri potestas hujusmodi denegatur , equalis fastigii cùm sint reges ambo . cur in potestate s●nt ipsi dispares , nequeo non admirari . this chapter is spent in maintenance of the dialogical continuity , and it has that spirit of reason in it , which keeps the chancellour in preparation for an answer of what 's therein interrogated ; the common rule is , ubi cadem ratio idem jus , and why the politique , mixed with regal government , since it is a real kingship , should not have so much priviledge as its brother kingship nomore divine , nor no trulyer instituted of god then it is ? is the scruple now to be resolved . for since regality in both is of , god , the condescension of it in the one and not in the other is no alteration of the essential dignity , but an adumbration of it for ends of good ; which since god does seem for our sakes often to do , when yet he retains his absolute soveraignty ; why the king so doing should seem less then otherwise he would be , is the question to which the chancellour frames an answer in the next chapter . chap. xi . cancellarius . non minoris esse potestatis regem politicè imperantem , quam qui ùt vult regalitèr , regit populum suum , in supradicto opusculo sufficienter est ostensum . diversatamen authoritatis eos esse in subditos suos ibidem , aut jam , nu●atenùs denegavi , cujus diversitatis causam ùt potero , tibi pandam . this chapter is the pithy breviary of the chancellour's response to the former chapters proposals , and it is by way of concession , that the power of both kings is the same as his arguments and reasons in the formentioned tract purposely thereupon written , doe make good : all that is of diversity in the powers is not fundamenti sed exercitii , not in the nature of the power ; for that being god's in the trust of kings quâ such , is equally god's , and equally in the dignity and majesty of it . theirs ; but the emanation or rather modification of it , is diverse upon diverse reasons , which in the twelfth chapter be enlarges upon . for as there is no general rule but admits of some exceptions , and the same sun melts wax that hardens clay , so the same power and prerogative variously expresses it self in the one and in the other , according to the subjects it is conversant about and the juncture of affairs it has to cope with , which , because the chancellour has discoursed upon before , and now remembers , frustrà fit per plura , quod fieri potest per pauciora , he in that part referrs to what he had formerly resolved in it , and for what is undiscoursed of , promises additional information , and that he makes good , not by a bold braving , but a modest veracity , cujus diversitatis causam , ùt potero , tibi pandam . chap. xii . homines quondam potentia praepollentes , avidi dignitatis & gloria , vicinas saepe gentes sibi viribus subjungarunt . this chapter explicates the origen and rise of absolute and lawless monarchie , as men in nature and gods in power obtained first , and since have in their successional lines held them . now though he sayes the greatest monarchs were but men in nature , yet by the stimulations they had to great actions , and the successes they had by them , they appear to be more then men , because stirred up by desire of glory and honour to contemn danger and hazard , which in contest with , and conquest over men their fellowes in nature and station , they must resolve to cope with . now this so patiently works in the nature of great mindes , that it makes them set upon nations to master and lord it over them , and our text-master cals it the rise of great empires . and if all the heroiques of the world were asleep , and the memory of them perished ; the truth of this would be confirmed from the actions of one onely alexander , who was not onely the worlds master before he was thirty years of age , which he did by counsel , eloquence , and the art of rule and conduct , but envyed any commander of his own that was successefull : yea lipsius is my authour for it , that he was more wrath with his fortunate and well-deserving commanders , who did things with merit of glory resulting there from , then with those that executed his commands , infeli●iter & ignavè , unprosperously and with dishonour , which perhaps is the reason that ambitious princes disfavour great merits , least they themselves by them should be lessened , and have rivals and competitours in that power , which they would have solely theirs , and which they can attain to by no readyer an artifice , then reputation of bold and fortunate , which as it was a serviceable harbinger to designs of rule and soveraignty , so made subjects admire the obtainers of it beyond reason , and arrogate to them a participation of divinity ; so that men no sooner heard but feared , and no sooner saw but submitted to them , as thinking every frown a thunderbolt , and every angry word a hell-fire for their torment and terrour . learned lipsius professes , that he often laughed ( as well he might ) to read the follyes of men in their random admirations of those in power . for when the mexicans swoar their king , they exhibited to him these things in his oath , that iustise he would do , oppress none of his subjects , be valiant in warr , hitherto well ; but at last comes , that he would cause the sun to shine and not let it be interrupted in its course , that the clouds should rain , the rivers run , and the earth bring forth . and ammianus marcellinus tells us , the old burgundians who were wont to call their kings hendini , did depose them if either they were unfortunate in warr , or the earth failed its fruit . these and such like follyes men are sometimes irrationally guilty of , as preparatory to their shackles and the setters of their bold and daring coverers conquest of them . and thus comes it to pass that nimrod , iulius caesar , and the mighty chieftains of the world have subdued countryes , wasted continents , prostrated stately edifices , rent asunder goodly libraries , dissipated well compacted combinations ; yea in sort uncreatured the world by the prodigality of their furies , and the tragicall effects of it ; which though god has often turned to good , and most of the good lawes and good magistrates that the world and every part of it has seen , be the issue of this original grandsier cruelty ; yet was the commencement of it altogether roystrous and sauage , and in this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was there no aim at any thing at first , but to master , and to have all at the conquerours pleasure , which was the government mentioned daniel v. . where 't is said of nebuchad-nezzar . that all people , nations , and languages trembled before him , whom he would he slew , and whom ●e would he kept alive , and whom he would he set up , and whom be would he plucked down ; and which the turks and muscovite practises to this day , and which was the government of inga in brasil , where no man had any thing of his own but every man at the pleasure of inga and no longer , nor did any thing go to any mans heirs : which is so hard a tenure , that it may well be accounted conquest , and the subjects under it slaves beneath slavery . this the gyant-like monsters of ambition and pride did not onely to get them a name , as did the babel-builders , who built potius ad pompam quam adusum , for they built even as high as heaven , and in the eighth story which saint ierome makes about paces , and the iews make paces , if any truth be in their fictitious talcuth ; but also to intimidate and lurch men into a dread , that , by the dispiriting of them , should betray them into submission to whatever they please ; which the chancellour words as followeth . ipsis servire , obtemperare quoque jussionibus suis compuler●nt , quas jussiones extunc leges hominibus illis sancierunt . indeed therfore many men have endeavoured to get names of fear and reverence , that thence the dread of them falling upon men , they may be obey'd in whatever they design and prosecute . these the holy story called gyants in the earth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , men of name or renown . some would have 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to come from the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifying d●s●lare , or stupefacere , hinting thereby how renown or a name is gained by the fear and terrour men are possessed with , when they hear it . thus god is said to get himself a glorious name , isa. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a name of glory : by what ? by dividing the waters before israel , and leading them through the deep , which was an act of divine and unimitable power . now this , men of ambitions and prowess knowing available to their ends of puissance , endeavour as much as in them lyes , to make their actions as dredful and cogent to those they had designs upon , as possible they can ; and when once they are dunn'd and cow'd , then they will submit lowly , and obey universally , then they will take their curbs into the mouth willingly , and ride at what rate under them they will have them . for dominion is obtained over no people , but by either wisdom admired , or power feared prepossessing them ; either or both of those are the sure , if any be the fore-runners of power . these will make people not onely servire , become their subduers slaves , but obtemperare , as a son does his father , whom he will obey and be faithful to , because he loves and esteem his desires as laws ; yea , and not dare to do other then the reverence of laws to them . this opinion the world had of iulian , which made him so successful every where ; and of iulius caesar ; and all that have been victors , who have become absolute , by the awe their virtues either togal or martial have prevailed by . and this in time has been the ancestor to all after calmness ; for when the stomachs of men have come down , and both the ruler & ruled have had enough of force and fight ; to prevent it for the future , both of them have consented to terms of civil order and quiet , which in time has antiquated and eliminated all fierceness , and brought in credit , mutual kindness and politique consciencious respect and fidelity each to other : for so the chancellour proceeds , quarum perpetione divina subjectus sic populus , dum per subjicientes à caterorum injuriis defendebatur , in subjicientum dominium consenserunt . here the chancellour shews , that though conquest possessed the great monarchs of the world of their commands ; yet consent of the people conquered , recogniz'd and ascertain'd them peaceful to them , and hereditary to their heirs and successours ; and that not onely upon fear and necessity , because otherwise they could not help themselves , but upon choice , and as we say in law , a valuable consideration , the conquerour was to protect them from injuries , and to warrant ( with his utmost hazard ) their security , against all persons that would annoy them , and they were obliged to be loyal to him , and to live subject-like under him . so that there is hence a reciprocation of advantage ; the governour is secure from treachery and mutiny , the governed from rapine and cruelty : for there is a double rule of the law that makes to this purpose , subjectio trahit protectionem , & protectio subjectionem , and quibus modis aliquid acquiritur , iisdem & conservatur . in both which respects , the joynt concord to so noble and beneficial ends , appears to be wise and worthy , since security from danger is one of the great blessings of life , and that is not to be purchased but by submission to power , which is able to compel , but is willing to comply , and by adhering to that power , to those profitable issues of peace and order . this is the golden chain of power , by the links of which 't is made conspicuous , durable and communicative ; and this composition being so athletique and virile , so rational and effective of good to all parties indifferently , makes it so beautiful , and so lasting . for as it commenced through the wise project of both sides , conspiring to make each other happy in a respective conjunct fatiation ; so it cannot be dissolved , but with the dissolution of all that is lovely and desirable . for as it follows , opportunius esse arbitrantes se unius subdi imperio , quam omnium cos infestare volentium oppressicnibus exponi . indeed here is the marrow and motive of all subjection , 't is ration● boni inde proveni●ntis . for as god the proto-monarch is not made happy by the worlds obedience to him , but the world made happy by his defence and preservation of them , whom as a king he protects ; as a law-giver he directs ; as a father he feeds ; as a husband he tenders ; and as a benefactor he will reward : so kings ( just and worthy ) are not more happy in the subjection of their subjects , then their subjects are in the watchful eye , powerful hand , subtle head , affectionate heart , and every way expressive largeness he discovers towards them : nor is there any so compendious a way of peace , as for the subjects readily and freely to submit to their prince for conscience sake ; yea , and for the goods sake that thence results to them . for when one takes the duty , and expects the subjection , he puts an end therein to all those pretenders , whose injurious spirits flatter them into a right of doing wrong ; & whether it be not better to obey one then many ; and a king noble by birth , blood , and endowments , then fellow subjects , let not onely men in the experience of all ages be judge , but even god , who in the universal inclination of all nations to monarchy , has sufficiently determined the dignity of it , as a ray from his oriency , who is king of kings . but of this i have written heretofore , and shall refer here my readers to that nervous and ingenious discourse of monarchy asserted , by a most polite and accomplish'd gentleman ; who truly ( i think ) has said as much on that noble argument , as well in so few words can be said , and more then ( i dare say ) can be answered by any contrarient whatsoever . sîcque regna quaedaem inch●ata sunt , & subjicientes ilti dum subjectum populum sic rexerunt , à reg●ndo sibi nomen regis usurparunt , eorum quoque dominatus tantum regalis dictus est . this the chancellour , like a wise master-builder , lays down to a breadth proportionable to the intent of his intended superstructure : for being to convince the prince , that some of the kinds of governments that were in the world , were according to the compacts of princes and people in antient times ; and that the first subduers of nations sound their tenures by the sword troublesome , without the consent , and contrary to the mind of the people under the power of it , he lanches out into the discourse of the titles of those that so acquired and exercised power , which he lays down to be that of kingship ; and though latter times have seemed to give the prelation to emperour , as couching kingship under it : an emperour , in the strict sense of late lawyers , being the soveraign of kings , and having a king his subject ; yet our law accounting its king an imperiael monarch , according to the stat. of h. . c. . h. . c. . h. . c. . eliz. c. . iac. . before mentioned reduces the word king to the pristine honour which antiquity gave it . for king being the title of god , who governs and preserves the world , and who deserves the service and love of all his creatures , honours sufficiently in that title all that by delegation of his power , are governours and preservers of men in civil concord , and religious agreement . and that kings may become their kingdoms as god doth his , it becomes them to be just as he is ; and that they onely are , when they are such as the laws of their government prescribe them to be . indeed , in absolute governments , such as a e founded upon conquest , and the pleasure of the victor , here laws have no force : but justice ever ought to rule the wills of such prevailers , if they will be worthy and beloved . what cotys the thra●ian king told one that censured his sharp government to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : to whom he replyed , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. this severity ( quoth he ) which you censure , though it be sharp physick , yet it makes healthy bodies , and renders my subjects wary not to offend that they may be safe from punishment . i say what he reply'd is very much a truth , but not so much to the lustre of governors , as the practice of evagoraes in his government , which i mentiond before out of isocrates , who testifies it to be such , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that his subjects were more happy in him , then he in the government of them , for he gratified no passion of his own ; he studied no greatness , but the good he preferred and honoured , and the evil he punished according to law. and therefore , though rule may at first be acquired by ill means , depredation , violence , and injury ; yet after , may this stinging and deadly serpent become a brazen one , not onely durable , but sanative and beneficial . so the historian says the emperour iustine did , who though he got the empire by no good means ; yet when he was in it , ruled exemplarily , making virtue and every thing worthy praise his design , and according to the project every way doing . by which art , what oblivions have been of fury and injury , and what sodrings to future stability , stories and experiences do abundantly furnish the presidents of . for if the black atchievements of the quondam hectors , who founded governments , should not be shrowded with the lawn and tiffany of candor , and be sweetned by the forgivenesses of those rudenesses : 't were impossible to make panegyricks to their successours memories , and to pay the duty of subjection so contentedly as subjects , by this courtesie of time burying the stanch of it , and the goodness of kings deserving it , do yield it . sic nimbroth primus regnum sibi comparavit . here he descends to particulars , in proof of his assertion , concerning the truculent rise of the old absolute regal governments : and the first example he produces is of the assyrian monarchy , the first that ever was , and that in the person of nimrod , who not following the president of noah and his sons before him , who all were moderate and gentle governours , tendring their people , as fathers do their children , brake out into rage and resolution , to make himself terrible , and upon the awe and dread of his force , for which he is called a gyant ( ratione sevitiae , non staturae ) he founded his tyranny . and so bodin confirms , all the asian empires did after him ; yea , and the romane too , which makes glareanus , writing on the lives of the caesars , to extravagate , quid si dicam . latronum , mentiarne , in nerone , tiberio , caligula , . monstrorum , &c. i am ( saith he ) to write on the lives of the twelve caesars ; what if i say the twelve thieves , the twelve monsters . oh! but good words , glareanus , they are deities , divine honours are given them . his reply will be , what did they do to be de●f●●d ; if cruelty , covetousness , tyranny , murther , madness , pride , luxury , l●st , envy , rapes ; if these can make them divine , they are divine ; for such onely are their virtues : so he . but though the first monarchies and kingdoms long ago might have this foundation , as to the persons of men first fixing them ; yet is this no argument against the divinity of power , and the duty of men , as such , to obey them . for though the anabaptists and phanatiques do hence make a doubt of obeying governments that had so ill a foundation ; yet this principle of rottenness is easily prostrated , when consideration is had , that power in it self is instituted of god , though in the subject using it , it may not always be just and lawful , saepe res ipsa à deo instituitur ad quam nonnulls aspirant & aliquando perveniunt , per cos modos & rationes , quae deo minimè probantur , saith learned rivet . marriage is instituted of god , and lawful it is for a man to endeavour gaining of the woman he loves , to be his wife ; but yet god does not legitimate the sinister means that some men corruptly improve to obtain marriage by , as force , fraud , theft of children from their parents ; though when the marriage is compleated , the fruits of it may be good and excellent : so is it in empire , though it might at first be gained by ill artifices ; yet had , it may produce excellent issues , and become in time and by common approbation , just . so that the sic here is a black note onely on the first demeriter of his fellows , on nimrod , whose name says philo signifies , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , transfuge , or running away , because he deserted his brethren and went to their enemies , and with them tock arms against them and overcame them ; and so had babylon his royal seat , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies transposition and being besides his place . thus philo. and in this nimrod did but do like himself to be sole , not social in the earth . and therefore he was called nimrod , a name from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies , to oppose , oppress , and rebel ; and this name this person had by special appointment of god , who fore-seeing him to be a man of violence , terms him by that he most delighted in . this word ( in this man ) is near of kind to the chald●e , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , signifying a tygre , for such he was incarnate , no bounds would keep him within them ; he would over all that god and men made sacred . a proud and elate mind he had , and all others , he look'd upon as vild and contemptible ; and being in confidence & courage above others , he brake the yoak , and despised the common kindness , which nature had setled in her family , and upon that violence he erects a kingdom . what this origen was , the holy story tells us , he was the son of chush , son of chaens , the cursed son of noah : some will have him to be ninus ; of this mind is eusebius , but that is generally disclaimed : but that this nimrod did first exercise tyranny over mankind , is the assertion of the holy text , and all authours according to it ; which the holy ghost willing to stigmatize as the first luciferianism and insolent instance after the flood , permitted the character of him to b proverbial . that as we call cruel tyrants nero's , and desolate monsters sardanapalus's ; so men of prowess and irresistable ferocity should be called nimrods : for though he was but born and bred as other men , yet as florus said of andriscus though a slave , regiam formam , regium nomen , regio animo implevit ; and by this daringness did he set up the earlyest and greatest government of the world . some have thought this to be the he that the poets called hercules , a name of valour and puissance , which the great hectors of the world so doted on , that alexander of macedon , commodus , maximinian , heraclius , called themselves by his name and built cities after this name . they called him , as is thought also , bacchus the god of wine , because as wine makes men forget danger and despise it , so his valour made him contemn the discòuragements to rule ; for he being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by nature warlike and studious of renown , did make his way to his desire by his sword , and by this did primus sibi regnum comparare . tamen non rex ipse . this is added to shew that mens humours and mettles will carry them often beyond their births and probable obtainments . a man of a great courage he was , and his body bore not patiently others less vigorous then he , to be compartners in degree with him ; and therefore as he was active and potent , so does he manage such his excellencies beyond others , and becomes a terrour to men as well as to beasts , thereupon whatever he originally was , the holy ghost affixes this on him , that he had obtained to be accounted robustus venator coram domino . robustus venator ] this sets forth both his activity of body and minde : of minde , which chose hunting of beasts to discipline him to hunt men : of body , which was athletique and masculine able to follow the course , and to weary out the nimblest foot , and pull down the sturdiest body . aben ezra will have him called a mighty hunter , and successefull in his endeavour , quia partem praedae deo dabat ; but mercer reproaches this in him , and sayes , onely aben ezra of all interpreters magnifies this varlet . a man of courage no doubt then nimrod was , and of violence too , for hunting and hunters in scripture signifie so much , thus esau , gen. xxvii . is said to be a cunning hunter , a man of the field : and the malice and vehemence that wicked men have against the godly , is expressed by terms of hunting , lament . iv . . they hunt our steps that we cannot goe in the street ; which saint hierom renders lubricaverunt vestigia nostra in itinere platearum , so lament . ii . . mine enemies chasten me sore ; the vulgar reads it , venatione caeperunt me inimici mei , so psal. clx . . where 't is penally said , evil shall hunt the violent man to overtake him ; r. david adds , ve●abitur illum ad impulsiones , adeò ùt impelletur à malo ad malum , so prov. vi . . ezech . xiii . . and in other scriptúres violence is expressed by hunting . now this hunting of beasts , the gyants of old did not use for recreation , as our gallants now adayes do , beasts of prey and venery ; but to accustome their natures to cruelty and irrelentingness , and to enter them thereby into a making nothing of violence and life , which they found they should the better execute in earnest , when in jest ( as it were ) they were trained up to it ; that as gamesters begin with pinns and farthings , and leachers with obscene words , and blasphemers with random and broad speeches , and drunkards with sipping great quantities of small liquour , and thieves with robbing orchards and steeling deer , till at last they act all wickednesse in the heigth and improvement of it : so did the heroique bravado's of the world , who meant to wast countries and subdue governments to their wills , discipline themselves to ruffle and butcher men by doing the like first to beasts . thus xenophon tells us that the persian kings instituted their sons to hunting , and bochartus from him produces theseus , castor , pollux , vlysses , diomedes , aeneas , achilles , all which were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , trained up to hunting , chirone illos venandi artem summâ curâ edocente tanquam ad bellicam disciplinam non parùm profuturam ; tully seconds it , immanes fer●s bell●● as nanciscimur venando , & exercemur in venando ad similitudinem bellicae disciplinae ; yea , pliny is in the same tone , his artibus futuri duces imbuebantur certare cum fugacibus feris cursu , cum audacibus robore , cum callidis astu ; these and sundry other authorities , as of the emperour proclus , given to feats of theft ; commodus so cunning to snap beasts , that where he would he could have them ; adria● the emperour bred to hunting , all which , with many other examples do shew , that activity in contemptible things may in time grow to great success . ammianus marcellinus tells us the parthian kingdom grew from these small rudiments to great things , and (a) fulgosus remembers us that spartacus the thracian headed an army of men that put the romans in fear , and made them send out licinius crassus the most potent man of rome against them , and all little enough to repress that whiffling thracian , who originally was but a sordid person , yet active and bold . and he that considers what viriatus the lusitanian did , who was initio venator , & poste à laetro-factus , and yet did such a fourteen years service against the whole power of the romans , must yield that great things in issue depend upon small and unthought of beginnings ; yea , the most warlike people of india , the caeffares or black people of mosambique , become so terrible and active as they are , by living upon what they get by hunting , the prey of which they feed upon , and thereby are not onely able and bold to grapple with elephants , but even with all men that come in their way as linschotten informs me . this suffices to make appear that nimrod took a good method to his purpose , in making hunting of beasts inductive to his hunting of men . in which regard he is termed by the holy text , a great hunter . and that as it followes . coram domino , before the lord. this is added 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the more vividly to set out his monstrosity ; for it has an import of somewhat emphatique , not onely in grotius his sense , which makes the phrase to extend to things which are both pleasing and displeasing to god , but also and chiefly in that which rivet understands the holy ghosts meaning , coram domino vel contemptivè , vel simulatè ; for nimrod being a self-admirer , and having found his spirit bold , and his boldness successefull , may well be conjectured to resolve what he was to do , with an intent of despight of god , and in opposition to him , as valuing no eye seeing , no tongue censuring his actions ; so audacious was he , that he , in the effrontery of his attempts , seemed to pick a quarrel with god , and to challenge his purity and justice to clash with his lust and violence ; or else coram domino implyes his subdolous hypocrisie , which he conceited so much to prevail against god's omniscience , that he could intend violence and yet pretend onely order , and to make men more devout to him . one of these probably was the cursed artifice of this tyrant , whom therefore the holy ghost dissects by the phrase before the lord , to teach the world , that whatever the hidden hypocrisies , or open blasphemies of men are , god sees and censures them as before his eye and under his power , and will make their babylons of strength , by which they think to eternize their greatnesse , nothing . thus did he by nimrod , who though a mighty hunter and a subtle provider against an evil day ; for strong babylon he built as the non-such of the world , which should perennate his empire , and him the first founder of it : yet god in a short time brought him into the dust . and so we leave this mighty hunter before the lord humbled and reduced to lesser termes then an empire , all amort in the glory and terrour of his wonted activity . quia ùt venator , feras libertate fruentes ; ipse homines sibi compes●uit obedire . this is explanatory of the precedent words , and the chancellour by it shews how he exercised his strength and activity , to wit , in chasing beasts as a preface to his tyranny over men . wilde beasts are the subjects of the hunters pursuit , because they being ferae naturae , and nullius in bonis , and god creating nothing in vain , made them not onely as tokens of his power and omniform wisdom , but as exercises of mans industry and sageness , and as helps to his lustre and accommodation of life ; and should not man by hunting and slaying wilde creatures lessen the increase of them , not onely would the world be overlaid with them ; but man himself the lord of all creatures , of whom naturally the dread and fear is in all creatures , be overborne by the number of his rude and ravenous subjects , and be less able to master them then comported with the order and absoluteness of his empire . therefore god has implanted in man a spirit thus active and daring , that the creatures void of reason might ( though in bulk and strength excelling man ) be by the reason of man brought into subjection to him ; and this being the secret implant of god in order to mans dominion over the creatures , the corruption of man extends further then god originally intended , though not beyond the bounds he has successefully permitted , and in a sort , ex parte pòst , blessed . for though he loves not tyranny as 't is the lustfull and insolent rule of one over many ; yet as one good governor may by his rule over many bad , meliorate them , so he is not a disapprover of it : order and subjection he wills , though the irrectitude of the means , and the truculency of the subject , who transacts this , he approves not . that which then was reprovable in nimrod , was , that he did violently and savagely hunt men , and suffer them to be quiet no where , till they had taken his yoak and would answer his spur and lash ; which our chancellour expresses by compescuit obedire . because , as beasts of prey that use to be at liberty and not fettered , are not got into ginns and snares , but in order to their destruction , either for the skin , horn , flesh , feathers , or some other parts sake about them ; so men are not compelled to submit and obey , but sore against their wills : for though all men dare not do so much for freedom as hegesistratus elaeus did , who taken by the lacedaemonians and put in iron chains , cut off half his foot to be at liberty , and after that leaped over the wall and escaped his imprisonment ; yet all love freedom as well as he , and are loath to obey basely , till they cannot shift it . in that therefore our chancellour sayes , homines sibi compescuit obedire , he intends to declare that obedience is the childe of power , either that which is obtained over subjects by love the engine of milde princes , or by force and anger the method of angry and savage ones . and such were the following men he writes of . sic belus assyrios , & ninus , quàm magnam asiae partem ditioni suae subegerunt . this belus is diversly thought of among the learned . servius says this name did not ratione carere : it is thought by some that this was the iupiter of the poets , whom the nations worshipped as a god , because he commanded whom , and what he pleased . others say 't was bacchus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and hercules , and i know not who : probablyest he was the same whom the sidonians , and phaenicians call'd baal , so often spoken of in scripture , who was not onely a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as the father of tyranny , but as he did tyrannize over the souls of men , in making them give him divine honour ; for so ¶ strabo tells us , that to bacchus , which was baal , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. all asia was consecrated to bacchus ; and how much he daily devoured to satisfie his luxury , bochartus has to my hand set down . now this power of belus is here set down to be over the assyrians , that is , over that tract of ground near and about babylon , as appears not onely from the of ier. . where god says he will punish 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bell in babylon ; but also from the agreement of interpreters , historians , and geographers , strabo , herodotus , pliny , who all make assyria to be that very place now called syria , having on the east of it india ; on the west , the river tygris ; on the south , media ; on the north , caucasus ; which to distinguish the better , men divide it into syria , assyria , leucosyria , caelosyria : others into syria of palaestine , and syria of antioch . this was the plain and pleasant countrey , in which this tyranny under belus was acted , called assur , not from assur a man's name , as some will have it , but from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , blessed , because it was a land commodious for life , as the scripture testifies , a land of corn and wine , a land of bread and vineyards , a land of oyl olive , and of honey , king. . . this was assyriae , which was and is so noted to abound in delicates , that every thing of rarity was termed assyrian ; the citron , a rare fruit called malum assyrium ; the rose of ierusalem amomum , named gramen assyrium ; the drugs of which , choice perfumes are composed , termed assyrii odores ; the garments of state , which emperours and princes wore of purple and scarlet , v●stes assyriae ; yea , the learning of the then world , was limited to assyria . and hence we read in pliny of literae assyriae tanquam ibi primum repertae ; and high noted orators that traded in pompous words were called asiatici oratores : yea , many have made eden the garden of god , to be in assyria : so the chaldee paraphrase , on ezech. . as bochartus well observes . et ninus , quàm magnam asiae partem . this ninus was the son of belus , and husband to semiramis : nimrod built babylon , and belus expatiated his empire over all syria : but ninus was the notable monarch of asia ; for his empire was the first of the fifth heathen periods of time ; ninus his empire , ogyges his flood , the trojan war , olympiads , vrbs condita ; these were the five . i know there are other periods and aera's in sealiger and gassendus ; but the ethnique accounts was from these : and this establishment of ninus's , as it was a great one for power and territory according to diodorus , so was it a durable one ; for the assyrians commanded the upper asia near years , so fortunate was his small beginning , that after he had entred a league with ariaeus king of the arabs , in years he subdued all asia , which is the third part of the world , as big as europe and africa , and contains in it mysia , phrygia , caria , lysia and lycaonia , the pleasantest and richest part of the world. this was the subject of ninus his empire ; and of this , babylon was the chief , and ninus the second city . yet ninus , as great a conquerour as he was : was conquered by his cruel and false wife semiramis ; to whom , he able to deny her nothing , granted an one days onely empire , which he intended onely to honour her ; but she treacherously misusing , caused her husband to be slain , and so usurp'd his empire , and was not onely vild and vain in it , but when she was to dye , caused her effigies to be cut in stone near the mountain bagisthenes in media , and appointed an hundred men as priests , daily to wait upon it , and present it with gifts and offerings . sic & romani orbis imperium usurparunt . as the eastern monarchies , so the latine was founded upon force . man had made a babel of his soul by confusion of that divine order and integrity that was in it , and god made all the designs of his ambition and earthly eternity , indurable . the monarchies of nimrod , of belus and of ninus , were great and lasted long ; but yet they had many vicissitudes and several masters , and at last their greatness was eclipsed by the wester● monarchy under the romans ( which plutarch says , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. came upon the stage of fortune , and appeared gloriously in the wain of the assyrian and persian empires ; for so great and brave a government it was , that ( saith my authour ) it may well be called the sister of iustice , and daughter of providence . vrbs oritur , quis hinc hot ulli credere possit , victorem terris impositura pedem . when rome from small beginnings rose to give laws to the world , who could it then believe . to write of rome at large , has filled already the world with great stories , dionysius halicarnass . plutarch , pliny , tacitus , livy , suetonius , and all the scriptores romani , together with the exserpta out of them , brissonius , dempster , lazius , and above all lipsius have so largely and exquisitely done it , that to aim at any thing besides them , were a monstrous folly . as therefore i do decline all prolixity , and refer my reader to the ingenuity of those originals ; so i judge it fit for me shortly to write here of the romans empir'd , to bring them into a proportion with the other instances of our text-master ; rome therefore of old , the seat of the roman empire , was founded , according to authours , by romulus the first king of it ; a man infamous for his birth , being spurious , the product of mars and ilia the vestal nun , daughter of numitor king of albany , who left him ( as stories say ) to the nursery of a woolf , which educated him in a bestial ferity ; the infamy of his birth and nurtriture , he willing to be relieved from , meditated some heroique work , in the merit of which , he might by common consent of men make some addition to himself ; and confederating with his brother remus , built rome , calling it after his own name . this was ( i suppose ) done a little before the eighth olympiad , and according to computation about the year of the world , , before christ years , sigonius places it about the first year of the seventh olympiad : when it was certainly built , i am not chronologer good enough to state ; hut that it was built , and that by romulus , as aforesaid , i question not for the joynt authority it has to that purpose . when he had laid the platform of it , and beautified it with all necessaries to the presence of a regality . primò co●stitutis sacris legum jura sanxit , fecit & seregiis insignibus augustiorem , circa se lictores instituit , asylum aperuit complendae urbis gratiâ centum senatores creavit reipub. consilium ; equestri neptuno ludos finitimis gentibus indicavit . thus messala corvinus tells us he began , which new model the neighbouring nations gazing upon and becoming spectators of the recreations there instituted , gave occasion to the roman planters , to seise violently the sabine virgins , and them to wive , and on them to get a succession to their after-greatnesse . these rapes dictated by necessity of state , brought enemies upon the romans , and the enraged sabins , thus spoiled of their daughters , resolved to give romulus and his subjects sower sawce to their sweet meat : romulus defends himself and his acquisitions bravely ; and fortune ( to speak in roman language ) so favoured new founded rome , that all things answered the grandeur of its founders stupendious project . and as the infancy of rome was venust , so was its manhood notably strenuous . to it all people of prowess and art resorted ; in it they stayed ; to its glory they contributed their attainments , and so it ampliated its renown , that all the world grew rome , and rome almost had no bounds beneath the universe ; this was the orient gyant , that run his race into all quarters , and the helen that bewitched all loves , the lap into which all the lots of conspicuity were concentred . there and there onely was the city of kings , the paradise of learning , the office of honour , the campus martius of manlyness ; nothing was there wanting that could advance life to an envy and endanger its luxury : yea though it were nothing but a pile of violence , inhabited by the desperado's and debauchers of all nations , latins , tuscans , phrygians , arcadians , which florus sayes made one compact roman corporation : yet did they , upon the interest of common concern , so cement and co-operate , that they fortified themselves against all incursions , subversions , or earthquakes , which the magnetiqueness of their external success and increase might reasonably occasion them , and prevailed against all mankinde to their mancipation under them , which made the writers of them not onely call them , the people onely worthy of the worlds empire , and of all the admiration of all both gods and men , but aggravate them with all imaginable eulogick hyperbole's , the treasury of all lands , the common castle of the earth , the head of dominion and of the world , the centre and academy of arts , the sanctuary of iustice , the orb of eloquence ; these were the tributes the flatteries of men paid to rising rome . rome thus replete with a miscelany of nations and diversities of constitutions , producing a ferocity of manners and conversation ; numa the second king appears , and as he to the ten moneths instituted by romulus , began from the moneth of march , added ianuary and february , which make our now twelve , so did he add to the glory of the government and structure of the city and its appurtenances ; and so did after him ancus marius : but prosperity made the people luxurious and prodigal , and there was a necessity of breathing out these peccancyes , least for want of it , the constitution kindles and flame to its exinanition . therefore in tullus hostilius his time to action they must , and did , first against the albanians , then the latines ; and after once they were fledg'd , and had drawn their neighbours blood , their singers itched to be in arms , and since they could finde none , resolved they were to make an enemy with whom to quarrel , which because servius tullius their king saw to be their temper , and necessary to his subsistence ; he formed his subjects into methods of warr , and acquainted them with the dexterity of right encamping : yet as exact as he was in the skill of souldiery , he lost his government to tarquin , and tarquin , proud with his prevalence , brought regality not onely out of date in rome , but thence banished , where it first was most conspicuous . after him the romans proved fortunate under every government , and in the parthian war had so much of divine benedictive providence concurring them , that when the victory was ten to one upon the parthians side , the romans rallying afresh and refighting made it theirs , which caused one of their dying enemies to cry out , ite & bene valete romani , god speed you , and much good may the mastery of the world do ye o romans , whose valour is such and victory so great , that ye can resist and beat down the darts of the parthians , so that enemy . so true is that of eutropius : that the memory and eloquence of man will hardly serve to commemorate and set forth the flourishing state of rome , what vast conquests they made , how renowned lawes they established , what a terrible name they transmitted far off , how rare examples of veracity , fortitude , and generosity they were , histories abound in . hence was it , that as to be a citizen of rome , was to be noble ; so to be a senator , was supra quod nou , which adrian the emperour insinuated in that his speech upon the senatorizing of titius , nihil se jam amplius habere , quod in se conferri possit . but rome , as a piece of elementary mutableness , stood not always thus fixed , and really enviable for her virtue and happiness . for as her pride made her invade neighbours ; so her conquests over them , made their vices and pleasures victors over her quondam virtues ; syria and asia they got , but by them they were effeminated , and the manners of the age being inquinated with forreign vices , made rome a sink of lubricity , not a theatre of masculine puissance , and heroick bravery : for which the poët , not untruly , reproached it . seditione , dolis , scelere atque libidine & ira , illiacos intrà muros peccatur & extra . sedition , fraud , lust , wickedness , and rage , have rome devour'd , made it the villains cage . quae tam festa dies , ut cesset prodere furem , perfidiam , fraudes atque omni ex crimine lucrum quaesitum est , partos gladio vel pyxide nummos . what day so sacred is , which cannot discover theft , perfidie , with fraud , 'bout rome to hover , in thee gold is the goddess men admire ; they it by hook or crook resolve t' acquire , thus is the roman virtue dun'd i' th' myre . yea so just occasion there was for this declamation against rome's apostacy , that the grave philosophiz'd emperour antoninus upbraids it , is this ( quoth he ) rome , in which in elder time , and in the golden age , there was upright old men , civiliz'd youth , valiant and well disciplin'd souldiers , most just and wise censors and senators ? sure this that is now rome , is but the picture of that real rome ; for now ¶ the citizens are from watchful , slothful ; from men of agility , become vicious ; from industrious , become a city of idle and inoccupyed men . and now the roman name cripples and declines ; all the east defects from them , and of the west they hold but a small part ; their wealth refunds it self into those quarters whence it effluxed , and every ambitious and popular party rends and tears a limb from her symmetrious body , and that figure which was the glory of all its architects and statuaries , becomes now disfigured by the triumph of time , and the tyranny of change in her ruining voracity . so that as nimred , ninus , belus , tyrants all , had but a temporal consistency ; no more had rome in the grandeur of that position , wherein , as queen of nations , she gave laws to the continent . quare dum filii israel regem postulabant sicut tunc habuerunt gentes omnes ; dominus inde offensus legem regalem eis per prophetam explanari mandavit , quae non aliud fuit quàm placitum regis eis prae-essentis , ut in primo regum libro plenius edoceretur . this instance the chancellour produces , to shew that the customs of the nations had infected the people of god to symbolize with them , in desiring the government of a king , rather then that that god guided them by , when he says , he was their king , whom in their choice of a king , as the nations had , they declined , and for which , the severity of their kings should be a punishment ; not that god disapproved kingly government , for that is his own government over the world , and that which his son our lord jesus is expressed by , i have set my king upon my holy mountain ; but because he knowing the hearts of israel , set on it with a depreciation of him , made it therefore terrible to them , as a punishment of their disesteem of him . in these words therefore the holy ghost does exemplifie their condition in the fruition of their desire . and though lorinus , and other learned men largely discourse of the particulars of this their temper of affairs , as penal from god ; yet a better and shorter account of it , can no where be produced , then from the pen of ¶ king iames of happy memory , who in his discourse of the law of free monarchy , treating on it , has comprised all that the words import , in this breviary , the best and noblest of your blood , shall be compelled in slavish and servile offices to serve him , and not content of his own patrimony , will make up a rent to his own use of your best lands , vineyards , orchards , and store of cattle ; so as inverting the law of nature , and office of a king , your persons , and the persons of your posterity , together with your lands , and all that ye possess , shall serve his private use and inordinate appetite : thus he . and th●s makes good our texts description of it to be placitum regis eis prae●essentis . habes nunc ( ni fallòr ) princeps clarissime , formam exordii regnorum regaliter possessorum , quare quomodo regnum peliticè regulatum primum erupit , etiam jam propalare cenabor , ut cognitis amborum regnorum initiis causam diversitatis quàm tu quaeris , inde elicere tibi sacillimum sit . this epilogique sextence has much of comprehensive smartness , and oratorious brevity in it : the prince is gravely , and with due obeysance told what the chancellour aimed at , and accordingly has performed in the preceding words , habes nune princepsclarissime formam exordii regnorum reg●liter possessorum ; as if he had said , great sir , i have not boasted , of what i could not perform to your satisfaction ; you have it ( ni fal●or ) as far i hope as satisfies you , or is discoverable by man , the original of high mettalled domination . secondly , the chancellour rationally promises solution as well as he can , how politique government came in use , and the effects of it , and this as a piece of right to justice , that the sentence may not be passed upon either , but after audience and consideration of both , quare quomodo regnum politicè regulatum , &c. as if the chancellour had proceeded to say , your grace knows , that the fore-described absolute regality , was a fruit of popular fervour , which delighted in change and assimilation to the most received custome of men ; aad sir , you are also to understand , that politique regal government , such as englands is , did not come into approbation by chance , as a by-blow , with all the disparagements of ingloriousness upon it , but it did erumpere , as that which was expedient and necessary , to prevent both the rulers disturbance , and occasion the ruled's peace : 't was such a mixedness of temper for common good , as was equally in the issue of it compensative to king and people : for such a sense i conjecture our chancellour to have , when he says of it erupit , which is as much as cum impetu exiit ; erumpo being a word that argues and implyes vehemence and importunity , not to be almost denied , like the breaking out of a spring , which importunes passage , and where it finds , continues it . and i suppose our quondam kings , under whom it first appeared like indulgent fathers , seeing their subjects as dutiful children , prostrate before them to beg the blessing of kindness and freedom from them , did in paternal commiseration and regal condescension , vouchsafe their desires : and thus they did erumpere gaudio propter concessum regimen politicum . for the chancellor does not novum dogma propalare , not make the freedom and relaxation of our government to be a fruit of war , or ( as it were ) a trophey from the spoil of princes , but he makes it an acquisition of favour , a reward of duty , a stimulation to obediential perseverance . and then lastly , he shews the reason why he does thus produce the governments in their respective nature and fruits , to wit , that his reason might be satisfied , that antiquity was herein found in the way of righteousness , and therefore to be honoured , and that as well king as people consented so to rule , and so to obey ; and this takes off all the acrimony of people against their prince , and all rage and severity of the prince against his people ; which a commodus would never have consented to , for he laid aside the gravity of a roman senator , and appeared like a fencer , using no companions , but such lewd roysters ; and the reason was , his design was , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the grave men and all his fathers friends he meant to slay , that they might not see the wickedness he was to act , nor reproach him for such villany , as became rather a butcher then a prince ; but our princes have abhorred such courses , and consented so to govern , and so to be obeyed , as the law mentions and prescribes , declining all excesses , as equally dangerous . this their moderation therefore our chancellour perswading him to follow , introduces the discourse of politique government in the next chapter , in those words . chap. xiii . sanctus augustinus in lib. . de civitate dei , c. . dicit quod populus est catus hominum , iuris consensu & utilitatis communione sociatus . saint augustine is one of the four latine fathers , whom baronius calls occidentalis ecclesiaeculmina , &c. the spires of the western church , the pillars of the catholique faith , the great lights and miracles of the world ; a bishop about the fourth century of the church , and one so learned and famous , that though he had be dirted his life and name with immoralities , heresies , and other turpitudes , which not onely he in his own confessions laments and detests ; but also possidonius , baronius , erasmus , vives , and other authours , do not spare him for : yet did the grace of god so effectually rescue him at last , that he grew the great bulwark of faith against the goths , donatists , manichees , pelagians , and all other heretiques , and deserved that testimony that erasmus , that witty and oracularly learned man gives of him , quid enim habet orbis christianus hoc scriptore , vel magis aureum , vel augustius , &c. what ( saith he ) hath the whole world more valuable and magnificent then this father , who wrote , and spoke not by rote , but as it were divinely inspired , aptly , and in a not to be confuted dialect , who had the excellency of all the fathers concentred in him , as if the ample gifts of the holy spirit were in him above humane proportion , and as if his soul were the table on whom the grace of god would exemplifie it self in the lively picture of an evangelique bishop every way compleat : thus he . and not without reason , for god had given him great wit , solid judgment , experience of converse , prospect of the vanity of the world ; and having directed these by conversion , to their right object , and by a preponderation of grace , made his accomplishments gods , in the intent and devotion of his soul ; so to use them , god brought him forth to a masculine purpose , and placed him in the forefront of the battle of danger and opposition . as a champion of the church he stood vigorously and successfully , writing so much , that possidonius strains the truth to commend him , scripsit plura quàm quisquam legerit ; but one wittily observes , is decipi cum opinione credidit , qui omnia quae augustinus scripsit , arbitratur se legisse . true it is , that much he wrote , and to excellent purpose , for so great a name gained he by his excellent learning , life , and devotion , that his writings , next to holy scripture , were reverenced and owned . and on this ground did the church saint him , not by popish canonization , for i think that was not in use then , but by a publication , and recognition of his sacred endowments , and the service he as an instrument of god's glory in the church , did . now as the authour was an excellent person , so is the book here quoted by our chancellour a rare book , both for the occasion , argument , and zeal of the authour , in the composing and publishing of it ; roma gothorum irruptione sub alarico gotho paganiblasphemare deum caeperunt , &c. when rome ( saith he ) was incommodated by the goths under alaric their king , and i saw and heard their blasphemies against god , and the magnification they uttered of ethnique fopperies ; the zeal of god against them , made me vindicate the truth against them , and hereupon i wrote the books of the city of god : they are his own words . on these books , learned vives , by the help of incomparable erasmus , commentaried , but with as much discouragement as a painful commentator could have from an ingrate age ; but notwithstanding all that , he perfected his work , & dedicated it to our h. . out of these books of the father , to wit , l. . c. . our chan , quot . is also c. . populus est caetus multitudinis rationalis , reram quas d ligit concordi communione sociatus , which is almost in terminis our texts here , populus est caetus hominum juris consensu & utilitatis conjunctione sociatus ; which sentence sets forth the subject , the rule , the end of government and order in all societies . so then societies are made up of men not beasts , for though number may be of beasts , birds ; and fishes ; yet society , arguing amicitialness , presupposes reason , which onely men and angels have . and as they are called caetus for the number , so hominum for the nature . this catus is a word of a large extent ; for it not onely imports ten in company , as the code has it : but any great number . the common law makes three unlawfully met together a ryot , or a multitude punishable , and though sir edward cook sayes , that upon the statute of r. . . . the word multitude must be ten or more , yet he adds , i could never read it restrained by the common-law to any certain number , and therefore since the statutes r. . c. . h. . c. . h. . c. . h. . c. . do none of them specifie the number that shall positively make an unlawfull multitude or assembly but leaves them to the exposition of time and practise , which interprets three or more a number within those statutes , that exposition is the law of a multitudes consistency . by caetus then is understood a number united having some capacity for action . and though caetus in authours has some times an ill acceptation as suetonius uses it , qui caetum fecerit capitale sit , and augustus forbad his daughters to be in the company of strangers ; yet it having a good sense also not onely in tully , but in our text there is good use to be made of it , as it is directive to the conjunction of societies , who by meeting personally together , become one in affection and soder into an onenesse of all common conditions ; hence the greeks by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 express any society either sacred , civil , martial , corporal , iob. xvi . . iob complains to god of his misery in these words , thou hast made desolate ●all 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , congregationem meam ; as if he had said , thou o lord hast withdrawn thy mercifull indulgence from me , and dissolved the polity and contexture of my nerves , sinews , and arteries , which carryed vigorously about the motions and operations of nature , and now i am the subject of reproach and abhorrence , i am as it were nothing , all the venust figures of thy impression on me are defaced and desolated , so might iob be thought to say . our chancellour then out of st. aug. understands caetus in a good sense for a company of men met together , not vagely to do mischief , but prudently to preserve themselves in a justifiable way , iuris consensu , iuris consensu , not casually and by accident as birds and beasts do , but upon moral and durable principles , by common agreement and concord ; and this either , cùm totus coîit populus : or when part representing the whole accord and consent , and then facimus quod per alium facimus , sayes grotius . and this consent of a law for regulation , and such a law , as according to the common principles of honesty and prudence , takes off the combination of men from all injurious intendments , because it supposes them so to love and practise charity and justice , that they will not as enemies to mankinde be praedatorious , but make the law their judge , and of their actions the arbiter ; which plato declares the end of law , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. to us the law has this import , that under it the citizens may be most happy and most friends one to another : so dictogenes the pythagorean , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c , the law is the president and authour of all things that tend to civil concord and virtue of conversation . for god has so riveted principles of justice into mans minde , that as he knows to practise it is his duty , so to understand it is his delight , where corruption by a prevalency has not besotted him . and hence is the general suffrage of men for a law , and zealous they are for the reverence and observation of it . archytas the pythagorean sayes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , it ought to be that that law and government be accounted the best , that is the marrow of all forms and regulates every action by just laws . et utilitatis communione sociatus , this is the noble end of all society , love arising from the common fortune they resolve to partake in . sin alas made a very great gapp , between not onely god and man , but between man and man , letting in such a sea of vice and torrent of ataxicall principles , and all those in depravation of the image of god and the candor of humane nature ; that did not virtue , ordinated by god to be the balm of cure to it , interpose , and express it self in civil offices and kinde inclinations to mankinde , and thence conquer the depraved rudeness , no reconciliation would possibly be , but that coming in as a reconciler and good angel , closes the breach and makes men agree to rule and obey to ends of common convenience . for as in the body-natural , the one head rules all the members , because the noble faculties of regency are there seated , and the lower and less noble parts willingly submit to its guidance and dominion ; so in the state-body the noblest and best are fittest to rule and probablest to rule well , and one is the best to rule , because after the model of god and the manner of mankinde ; and though i know many have carried on and kept up government worthyly among the greeks and elsewhere ; yea , and that under their aristocracy common good has been promoted : yet all experience tells us , that the least inconveniencies to common good arises from just and well-composed monarchies , wherein princes rule for god as god , justly and mercifully , and consider their subjects as under them to order , not to destroy ; to discipline in virtue not to president to evil . and who so considers the inconstancies of people in the roman's state , who after they rejected their kings fell to consuls , thence to decem-virs , th●● to consuls again , after that to tribunes of the people , those sometimes annuall , then changed into dictatours , from thence to short-lived emperours ; till at last they came to perpetual emperours . whosoever i say considers the versatility of the people in their influence on ] government , will have cause to blesse god for god's lawes to rule them and good princes to execute them . nec tamen populus hujusmodi dum acephalus , id est , sine capite , corpus vocari meretur . quia ut in naturalibus , capite detruncato , residuum non corpus , sed truncum appellamus : sic & in politicis sine capite communitas , nullatenus corporatur . here the chancellour shews , that no societies of men but have superiority and inferiority by common consent amongst them , and that from president of god and nature in the constitution of the body of man , the little world after the model and polity of which the greater is made and to it conformed : now his argument is as a body , nothing can be said such to be , that wants a head on it , for then it is monstrous and deformed , ●dead and invivid , a block and carcase not a perfect figure of life and lustre ; so in societies of men where some do not rule above others , and the others obey them , there can be no reasonable appellation of a society , no expectation of joint and several advantage and peace resulting from the glory and guidance of the head . for as that rescinded from the body ceases its soulary influence and actuation , so the societies of men not subservient to their head are full of confusion , and in no sort regular nor durably successefull in any their actions , but as soon may a wise man hope to see a post stirr without help of lifters , as these politiquely transact without an head . the head is the seat of life , and the region of the spirits , and nature of man ; indeed the heart first lives , but when life is in the heart , then it distributes its energy to the whole mass of nature gradually , for the cistern of the spirits , into which they all flow , and where they concentre , is the head : so that though the people be first in order of time , yet the ruler is in order of dignity , the chiefest and best part of all societies ; for he is the living law , and makes them he rules either happy or miserable , as his virtues or vices are : and therefore , as , a ruler cannot be without his people , so not a people without a ruler , they are relata's each to other , and do necessarily imply each other , and are but nuda nomina in their separation . for as in the consideration of the world , there is god the creatour , man his creature , the world his work ; so in the common-wealth , there is ( saith hopper ) quod praest caput , the head that rules , the foot that obeyes ; and that which is a partaker of both rule and subjection , the community and society of the people : so that as the end of life is not obtained , but by the heads being upon the body ; so not the end of government , but by the safety and proper fixation of the prince in his prerogative and seat of rule . which all wise people , in their respective governments , have ever in such a degree promoted , as was approved necessary to their subsistance and peace : and the people of god so far propagated , that they told david plainly , that his security was so important to them , that hazard his royal person against rude philistims ( who would bend the heat of the battle against him as king of israel ) he should not ; and they give the reason , thou art worth ten thousand of us , that is , thou puts a spirit into all of us , who without thee should signifie nothing : and whatever betide us , thy courage , wisdom , and influence , will either bring us off when in danger , by sending a convenient and timely rescue , or revenge our deaths and losses , by a brave return of resolution in revenge of injuries . oh! but why so ? one worth ten thousand : yes , thou art the light of israel , and one sun is more available , then millions of little farthing lights : thou , o king , art a good of communicativeness , all our darkness is brightned , our dulness sharpned , our disorder regulated , our diffusions recollected and united in thee : therefore we are bound in love to our selves , to secure thee as the fountain of all our good , and the life of all our peace . for though it is agreed on all hands , that people were before princes , and families before kingdoms , ( for government was in families from the creation to the flood ) and from families to divisions and neighbourhoods , thence to towns , thence to cities , and thence many towns and cities being united made common-wealths ; yet princes , the most excellent of them , being set over them , and recogniz'd by act of state , no reassumption of the primitive power , and liberty of people lyes , any more , then it lies in the power of a woman once marryed , to dissolve the marriage bond ; for though it were at her choice , to consent , or not , while she was sui juris ; yet having once consented to the act of marriage , she becomes her husbands , and he has power of her , and all her single liberty is determined . this then considered , the chancellour has done wisely to consider bodies politique by bodies natural , as god in the fabrication of man made him the epitome and little model of the world , so our chancellour makes the head in the body of man the thing by which he sets forth the state of kingdoms , and their bodies governments . in the body though there be two feet , two hands , two arms , two ears , two eyes , two sides , yet is there but one head : so in the common-wealth , though there be many ruled , yet but one alone rules ; which one is called emphatically a head , because the head is sacred , sacrum caput ( saith varro ) à capiendo , quia inde capiunt originem sensus omnes , &c. all the senses internal , external , are there lodged , as in the noblest part of the body . hence is it , that not onely christ is called in scripture , head of the church ; and the man the head of the woman : but every thing of perfection and excellency is set forth by the head . gergitius , whom pha●orinus calls no mean authour , says , that rome was of old called cephaleon , betokening her empire to be over all the world , and the chief place in her was called the capitol ; ye● , all safety was expressed by the heads safety , if that were out of danger , the body could not be unhappy ; which was one reason , why the egyptians venerated the head ; and paulus , the famous civilian , has published for the honour of the head , locus ille in quo humanum inhumatur caput , religiosus efficitur , etiam absque aliis corporis partibus . although therefore monsters in africa may have their mouthes and eyes in their breasts , yet most of the world knows no place for them but the head , and that on the shoulders of the people , who with gladness bear it up , and are made happy by their support of it : for princes are to states , as heads are to bodies , beauty , life , regulation , which three make that one divine harmony , which the scripture calls , under the name of charity , the bond of perfection . first , beauty , that 's conveyed to the body by the head , in which the face , the eyes , the nose , the seat of all the senses , both soulary and bodily , are . hence is it , that philosophers say , vultus animi index ; for all the resemblances of virtues and vice are hereby made known : nor is it often seen that men are better or worse ; but mostly that ( to wise men ) they seem to be ; which socrates justified zopyrus the phisiognomer in , when he censured him for a bad person , and was derided by them that stood by and knew socrates his worth . oh , says socrates , he rightly judged , for such as he described me , i had been , had not philosophy reformed me . so may all men say ; such we are as we seem , unless we are other by miracle , which none can tell but the author of them : when therefore the head is separated from the body , all the beauty ceases , all the prerogative of man above other creatures expires ; a carcass he is , and no more like what he was , then a truncheon is to a scepter ( though aristotle tells us of iupiter hoplosms priest , that spake after his head was cut off ) yet a rude inform contemptible thing it is , passive under every insolency , attractive of no respect , hardly worthy of civil ceremonies . so is it in the state , if the head be from the body , there is nothing but deformity and tyrannous monstros●ty , the feet and hands will rule , who are masters of misrule , and good for nothing , but aut humiliter servire , aut superbe dominari . and wo be to that land where the government is headless . the holy ghost records it for an ill time in israel , when every man did that which was right in his own eyes . hoc dicit scriptura quasi super hoc ingemiscit , saith reverend bishop andrews ; and peter martyr is positive , that nothing is more pernicious to humane society , then lawlessness , when the itch of popular levity , and the scurvy of their insolent success , makes them trample down laws , and rebel against the law-maker . god sets it down so often , there was no king in israel , then did every man that which was right in his own eyes , as the great aggravation of the peoples penal infelicity . god had removed their governours , and now they by their sins , being without the staff of beauty , god for their sins broke the staff of bands ; for a magistrate is the band that holds all together . god gave them magistrates , and those they murmured under , and god took away their governours , and with them the lustre of their government . so fares it often with brave aurelians , though for their good ruling , they deserve inter divos referri ; yet they feel , as he did , the force of treachery and treason in their deaths : so that kings are as heads , beauties to their politique bodies , and 't is as comely that one should rule , and the rest obey in the body politique , as that the head in the body natural should preside over the rest of the members , and they observe its rule , and submit to it . so the text is out of aristotle , politic. quandocunque ex plurimis constituitur unum , inter illa unum trit regens , & alia erunt recta . for as musick is made up of deep bases , shrill trebles , and grave means ; so is beauty in government composed of those symmetrious correspondencies that are between power and obedience . secondly , the head in the natural body is regimen , the directive part ; for though it be lesser then the trunck , or lower parts ; yet 't is in figure and nature correspondent to the sublime part of the world , the heavens ; because man is made to be lord of the world , god has given him senses suitable to his dignity , and lodged them in a repertory sublime and secure . in the head is the soul with all her faculties , if materially any where , or rather circumscriptively , which i do not say ; but i mean there ; if any where the soul and her faculties be , 't is in the brain lodged in the head ; there are the senses , which subserve the reason , and all the distributions of it . and hence , because the court of all the noble constellations is there , it rules , for that government becomes it best : so in the body politique , the prince , as the caput regni & legum , does the offices of the head to the community , he directs what 's to be executed , and what not ; how , in what proportion , when ; he prospects what 's good and evil , and is the authour of both , according as his example inclines to either ; which plutarcg apprehending aright , admonished trajan of , notably ; and that not onely as he loved him , but also as his own credit was concerned in the goodness and prudent demeanour of his pupil ; tuae itaque virtuti congratulor , &c. i congratulate thy virtue , its good fortune and mine too , if thou shewest thy self worthy the institution i have given thee ; otherwise , sure thou wilt be the subject of detraction , and involve me in the censure with thy self ; for as rome will not applaud a slothful prince , so will not they forbear reproaching me as thy remiss master , who did not timelyly pluck up the roots of vices , whence such weeds now spring ; but by sparing them in thee , am accessary to the ill effects of them . thus wife plutarch , other words , but in analogie of sense to those of our lord to his disciples , ye are the salt of the world , have salt in your selves , that ye may season others ; for if salt has lost its savour , it is good for nothing : ye are the light of the world , let your light so shine before me● , that they may see your good works , and glorifie your father which is in heaven . lights are not to be put under a bushel , but upon a hill , that all may see by them : so are princes to be examples of good , and directors of others to be good ; heads are parts of government , instruction , and conduct , as well as beauty ; so is the text , quare populum se in regnum aliunde corpus politicum erigere volentem semper oportet ●num praficere tetius corporis illius regitivum , quem regem nominare solitam est . thirdly , as the head in the body natural is the life of it ; and separate that from the trunck , and it becomes a log , terra inutile pondus ; so is it in the body politique , the king is head , all the life and lustre of the common-wealth is in him and from him . hence the hebrews called kings by names indicative of the good offices they do to people ; they called him by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , so the king of tyre is called exech . xxviii . . thou art the anointed cherub that covereth , quod in morem cherub alas suas extendat longè & ditionem proferat , saith a gloss on it . and by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a word denoting a king lawfully reigning and not a tyrant , prov. xxiv . . kings xi . , and thus god declares christ is set by him psal. ii . . yea as the greekes called those that ruled well 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the latins deos tutelares , so did they give almost divine honours to them . and the persians to shew the benefit kings brought to their governments by the peace and order of their reigns , made a law , that upon the death of every king there should be five dayes inter-regnum , by the disorders of which they saw their debt to their prince , who brought a redress of those mischiefs , which sadly thought upon , makes all wise men of michael orsagh the palatine of hungary's mind , who , when the peers of hungary would depose matthias , opposed them with this ever in his mouth from his loyal heart , quemcunque sacra corona coronari videris , etiamsi bos sit , adorato , & pro sacrosancto rege dicito & observato . to separate those then whom god has joined together , prince and people , is therefore treasonous ; because tending to the destruction of both . for though the people are the embrio whence god enlivens and makes powerfull the king , yet they are not any thing but cyphers and embrio's , dead lumps , without the soulary influence of him , ex populo erumpit regnum , quod corpus extat mysticum uno homine ut capite gubernatum . and that monarchy is the most ancient and just , the most peacefull and durable , the most safe and communicative government , all politicians agree ; so true is that of king iames , the proper office of a king towards his subjects agrees very well with the office of the head towards the body and all members thereof . for from the head , being the seat of iudgement , proceedeth the care and foresight of guiding and preventing all evil that may come to the body or any part thereof . the head cares for the body , so doth the king for his people ; as the discourse and direction flows from the head , and the execution accordingly thereunto belongs to the rest of the members , every one according to their office , &c. even so is it betwixt the prince and his people ; and as there is ever hope of curing any deceased member by the direction of the head as long as it is whole ; but by the contrary if it be troubled , all the members are partakers of that pain , so is it between the prince and his people : so that king. et sicut in naturali corpore , ùt dicit philosophus , cor est primym vivens , habens in se sanguinem , quem emittit in omnia ejus membra , unde illa vegetantur & vivunt : sic in corpore politico , intentio populi primum vividum est , habens in se sanguinem , videlicet provisionem politicam utilitatis populi illius , quam in caput & in omnia membra ejusdem corporis , ipsa transmittit , quo corpus illud alitur & vegetatur . still the chancellour followes the parallel according to the position of aristotle , making the head , though the first in place and dignity ; yet , not so in the order of nature . for notwithstanding that gassendus tells us of some that held the head was first generated ; phavorinus is for the liver first , the heart next , and the brain after , gassendus resolves nothing peremptorily , that it is , he knows , but the order he is not positive in ; but the philosopher is thorow paced , that the heart is the first and last of life in man , and his reason is , because the life of every thing is in the blood , and the blood in the veins , and the heart being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the principle of the veins ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the lord of the senses . the heart from which the activity of life flows , must according to him be the first and last : but the dispute of this will be needless , all that is alleadged by it , is , that the life and vigour of the head is by the assistance of the heart . as in the body-naturall , so politique , head and heart must go together to make regular and noble life in both , and as the head will be dull and inactive without the heart ; so the heart faint and overwhelmed without the distribution of its self by the head into other members : so , that though the similitude may in most things hold true , yet is there somewhat of prudence to be used in the condiment of what 's truth in it . for though this that our text-master calls intentio populi , may ex natura sua be the externall rise of power ; yet ex jure naturae , multitudes may transferr it , and having transferred it according to the law of nature for the improvement of order and civil convenience , it becomes by humane lawes and customs recognized and irrevocably fixed , and as the power is of god , so the exercise of it is by and under god onely ; and kings that use it are not accountable to ( popes as benzonius will have the ceremony of an emperours receving the sword from the altar to import , * that he should use it at the pleasure of the pope , ¶ lord of the altar , under the punishment of deprivation : no nor to people in the greatest representative and most august sense of them ; ) for still ●hey being but subjects are not judges of their betters , nor can make the law but must be subject to it , as legally impressed by the king to be the rule of all actions . for though true it may be allowed to be , that the particular forms of government were of old , and in the first times by god indulged men to order as they saw most convenient , yet did god in the law of nature ( his minde made known to mankinde ) promulge government to be safest in the best men who were appointed thereto , and who from being in person and minde excellent , and of great deserts from the community they governed , had the government by general suffrage settled upon them and their descendants , the credulity of the people probably perswading them to believe their issue in a line of successive endowments , would rule suitable to those their excellent sires , which collation of power by the act and deed of the temporary possessors of it in the name of themselves and their successors recognized by the acts of succeeding generations , makes the head absolute , and the intention of the people but precary to the head 's ratification . for the head once placed , and furnished with perquisites to its proportion ; the intention of the people is no efficient cause of liberty , as the church of rome makes the intention of the priest of the essence of the sacrament ; but declares them to have had thoughts of publick good in their consent of settlement of government on one , to prevent many competitours , and in a line of descent to anticipate uncertainty ; yea and may be well thought to produce kinde intercourses of friendlyness between king and people , the king being civilly ( with reverence i write it ) obliged to let them be free from the edg and sanguinary sharpnesse of his power , who had both presented him the sword of his rule and sharpened it by an edge put on it by themselves ; and by which they are outed of all claim to reassumption , power of repulsing , or judgement of mal-administration . this then , that is here called politica provisio , is not referrable to any terms or compact antecedaneous as some may suppose ; but the security which kings do give to god and their people by their coronation oath , which having respect to the national lawes as extracts from the law of nature and nations , requires that princes exalt justice as the reason of their institution and dignification ; that as the subjects must obey in and for the lord , so the king should command according to and in the lord , that is , things just and lawfull ; of which though he be the onely judge on earth , that is , by matter of record and in his judicial courts : yet is the judgement of god superiour to it , which alwayes is according to truth . the consideration of which has softned princes as i said before , to take 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. as philo's words are , the kingly middle way between both extremes ; and to reason and resolve with themselves as moses brings in the king he instructs in the law to this purpose , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. when other kings use their scepters for terrour making their wills the law , this directory from the law shall be my will ; in this diadem i will rejoyce , this shall make me victorious and virtuous , a follower of the great iusticer of heaven ; by this i shall learn the rule of equality by which i shall keep my self from pride and insolence , which god resists , and by this shall i procure the love , prayers , and fidelities of my people , and by this shall i shew my self a conformist to the divine law , which enjoines the mean as that which is equally distant from both extremes , thus philo. for as philo says , though there be a principality in every thing ; the lord in the village , the master in the house , the phi●itian among his patients , the commander among his souldiers , the master of the ship among his mariners : : yet none of these do act so to the rigour , but that their underlings are happy for the most part under them , god restraining the nature of men in power , and giving some qualities to persons under power to be come gracious with power , and so to mollifie and incline it to goodnesse : so it is in princes , though they can do by the heigth of their power what they please , yet they considering themselves parents and husbands to their people , treat them with all kindness and conscience , as parts and members of their mysticall body ; and so the power and 〈◊〉 that they have by the law to which their peoples assent is given , enables them to be what princes ought to be , just and mercifull . and therefore what the philosopher observes concerning the position of the heart in mans body , wherein onely it inclines to the left side , whereas in all other creatures it is placed in the middle , that i apply to kings , the hearts as well as head of common-wealths ; because the living laws , as they are to have justice on the right side so mercy the affections of tender-heartedness on the left-side , that they may as well know how to indulge their peoples freedom , as to heig●hen their own prerogative ; and then there will be a pleasing and orderly circulation , no part of the body will consume by the aggrandization of the other , but all motions will be orderly , and a just distribution be to all parts ; and this the text-master calls artlyly , by alitur & vegetatur . lexvero sub qua caetus hominum populus efficitur nervorum , corporis physici tenet rationem . as he had resembled the king to the head , and the intention of the people to the heart : so now he does the laws to the nerves , which are a part of the body near allyed to the heart , as partaking of the strength that it enables it with to all purposes of activity and motion ; and generally 't is held to be commaterial with the bones , and arising from the same origin therewith . for though nerves receive no spirits as arteries do , yet are they extendable , which arteries are not : therefore because the motion of the spirits , is according to the convulsion and distention of the nerves , it makes good , that the nerves are of great consequence to the vigour and manly performance of any act●on of life ; yea . the later anatomists , that make the nerves to arise from the brain , do not thereby lessen the vigour and consequence of the nerves . hence is it , that in authours the nerves are counted the compago corporis , that keeps and girds all together . so quintilian tells us of astringi ussa suis nervis debent ; and tully in those words , nervis & os sibus dii non continentur , intends to attribute to the nerves much of strength , as well as to the bones . yea , as sine nervis esse is a phrase for debility ; so to be nervous , is taken to be valid and strong : so souldiers , navies , and tributes to support them , are called nervi reipub. by tully , and frangere nervos ●● ment●s & corporis , is by quintilian expressed to undo a man's self . by which and such like instances it appears , that the nerves are of the strength of the body , and so are laws the strength of polities . take them away , and multitudes of men are numerus , non populus ; for 't is the law that brings the plebs and rabble-rout into order , and entitles them to the honour of being a people . for lex à ligando , because as the iron band , which the antient call'd a nerve , kept the prisoner to the punishment he was adjudged to ; so the law binds every man to the peace and to consist in his station : it s that which directs , protects , compensateth , ascertains every man and thing . and therefore , though it may be extended and made to serve every ingenuous and politique purpose ; yet take heed men must of abusing the law , least it be a swift witness against them , et meritò juris beneficium amittit , qui contra jus aliquid volenter & violenter facit . and therefore the chancellour has aptly compared the law to nerves ; for as nerves are of the strength of the natural body , so are laws of the politique body ; as nerves are connected with the heart or brain , so are laws the fruits of the love , and wisdom of princes and their wise counsel ; as nerves are adjuments to corporal activity , so are laws the hinges on which politique bodies act and move , to what they wisely & worthily incline to ; yea all the progress and augmentation that virtue hath , is from the laws : so saith the text , sicut per nervos compago corporis solidatur , &c. et ut non potest caput corporis physici , nervos suos commutare , neque membris suis proprias vires & propria sanguinis alimenta denegare , nec rex qui caput corporis politici est , mutare potest leges corporis illius , nec ejusdem populi substantias proprias subtrahere , reclamantibus eis aut invitis . here the chancellour proceeds to assimilate the king to the head of man , as before in what the head could ; so now in what it cannot , quâ such , do : for as in the apologue of menenius agrippa , wherein the members of the body conspired against the belly , till at last they were all by the bellies emptiness debilitated , and not able to do their proper offices ; so in the practice of experienced things it is seen , that where the subjects rebelliously rise against their soveraign , all is going to ruine . to prevent which , the safest way is to keep within the line and tether of the law , which is the wise arbiter under god of all things that come under question : god has placed the head over the body , but it is to act according to the law of its nature , for the good of the body . the head , while found , will part with no member willingly , command no member contrary to the law , and order of its position . hitherto shalt thou go , and no further , is said to the head as well as to the waves ; and so is it in the body mystical , the prince is the head , solo deo minor ; he can do nothing , but what he justly and legally may do , because he is a father of comp●ssion , and a husband of dearness , as well as a head of soveraignty ; and all these importing interest and tenderness , fix the non potest ( against all contradictions to these ) beyond ●emove . see the notes on the th chapter , concerning what 's pertinent to this purpose . habes ex hoc jam princeps , instituti omnis politici regni formam , ex qua metiri poteris , potestatem quam rex ejus in leges ipsius , aut subditos valeat exercere . in this our chancellour makes a conclusion from the precedent matter , to wit , that politique governments , were by prudence contrived to respect publique good , ●nd general convenience ; and that as people intended to reverence , obey , and secure their princes , as defender of the government , and laws of his government ; so princes intended and looked upon themselves bound those to defend and against them in any ordinary case not to rule . for that the king has power of his laws , and of his subjects , is most true ; but the line and proportion of his so exercising this power on either , is laid out by the law of his government , to the observation whereof he is religiously sworn . and therefore when in (a) h. . the king did make another sheriff in lincolnshire , then he that was chosen according to statute , our chancellour , and his brother chief-i●stice , in the name of the iudges , said , that the king did an errour . for since every rational action tends to some end , and is so concerned to act , as tends to the scope of its intention ; the desires of people consented to by princes in favour to laws , as the method of administring power , are of the very being of the peoples felicity and comfort : for in the statute of h. . c. . these words are , that this your graces realm recognizing no superiour under god , but onely your grace , hath been , and is free from subjection to any man's laws , but onely to such as have been devised , made , and ordained within this realm for the wealth of the same , or to such other as by sufferance of your grace , and your progenitors , the people of this your realm have taken at their free liberty , by their own consent , to be used amongst them , and have bound themselves by long use and custom to the observance of the same . which princes considering , do not endeavour by any means to anticipate , defeat , or impair , by either using their power and prerogative , as anarcharsis said the greeks did their money , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , onely to count it , and make themselves great by it ; but to shew themselves willing and able to promote their subjects goods , and to protect them in their honest and just endeavours ; which severus dying , asserted himself to have done worthily ; in turbatam rempubl . ubique accepi , &c. i did ( quoth he ) enter on my government , when it was disturb'd and in confusion , and i now leave it setled at home and quiet , even in brittain , though i am old and lame , incapable of action ; yet the same of what i have done , shall preserve my empire firm to my successo●rs , if they be good ; but if they be dissolute and negligent , then they will find it not lasting to them : for they who found the benefit of my care and circumspect government , will , when they see my successours not such , be desirous to change , in hope to find such a governor as i was , who made it wholly my design to have while i lived , and leave when i departed , a happy people . which never can be done , unless laws be considered , as tully delivers them ; not onely as the decrees of princes ; not as the injunctions of people ; not as the iudgments of the iudges ; but also as part of the law of nature , and the wisdom of god conveyed to them by the experience of wise men in all times and places , who stirred by an extraordinary spirit , framed them to the purpose of order and civility . and if thus laws be venerated , and law-makers provide , that laws be not so many in number , as good in nature ; not dark and mysterious , but plain and perspicuous ; nor sharp and vexatious , but just and prudent ; then will they deserve to be the measure of power , and no prince will desire to rule other then by them , who will deserve the name of good and wise . and other then such , no prince as such duly considered , ought to be thought , because he being god's vicar , is presumed to be just as his principal is , and as the mortal representative of the immortal god he ought to appear accomplished . adtutelam namque legis subditorum , ac eorum corporum & honorum , rex hujusmodi erectus est ; & adhanc , potestatem à populo effluxam ipse habet . this passage has primarily regard to the first ages , and to the contextures of politick governments in them ; in the language whereof , as our text-master , so his humble commentator sometimes phrases things , the better to set forth the lustre and scope of this argument ; which here considers , . the person of the magistrate by his name rex , by his dignity and conspicuity erectus , which is a term of magnification , joyned in tully with celsus , liber , magnus , which surely was typified in saul , who is said to be higher by the head and shoulders then all the people , not onely corporally , but officially . . by the end of his title and advancement , that 's said to be ad tutelam , kings are not onely honours and ornaments , but fathers and defenders , in (a) varro's words , tutelae & septa , and the people do as tully expresses it , latere in tutela ac praesidio regis . . by what is the subject matter of this their beneficence to the publique ; tutela cor ū corpor ū honor ū legis subditoū , not only of the law as the rule , and of the subjects , as the persons to be ruled by it , which is a truth ; but legis subditorum , so conjoyn'd , and so specified , pointing to them as the antique origin of the forms of power , and as they are the persons that do assist the king in the carrying on the effectuality of power , wherupon the text says , à populo effluxam habet ; and then lastly the modus in quo , this tuition of the law & subjects appears , 't is in keeping the peace , and punishing the breach of it in the harm of their persons & goods , the felony of which is contra coronam & dignitatem domini regis . these things are considerable in the text ; but because i have treated of the severalties of them heretofore , i shall onely vindicate our chancellour from any intendment here to approve popular governments or the insolencies of them , which god wot he knew the ill effects of , in the carriage of the people to lycurgus , and others ; but to do right to the truth of antiquity , and to make the wise composition of politique with regal government , not favour of arrogance , or encroach upon the due majesty and august soveraignty of god in the trust of his deputies kings . for though the laws should be granted to be lege s subditorum ; yet is it not in any sense as if they were makers of them , or might dispute them with their prince , other then in his courts ; or by a supplicate celsitudini on their knees . no such authority gives the laws of god or men . no such mistake is in the chancellour , or would i after him be for all the world guilty of ( for so they are onely the kings , ( the power of enaction of them being his , as he gives soveraignly royal life to them ) but legis subditorum , as they are the persons , who by their delegates in parliament assent to the fitness and justness of them , and so are obliged by them ; yea , and so interested in the priviledge and security they have by them , that they are called by a master-lawyer , the birth-right , and the most antient and best inheritance that the subjects of this realm have ; for by them he enjoyeth not onely his inheritance and goods , in peace and quietness , but his life and most dear countrey in safety . so he . and so are the laws called legis regis , not onely because he is the head of them , and the parent and protectour of them for the publique interest , in which his paramount interest is couched ; but also because the subjects and he are not to be divided , being mystically united : and as king iames wisely once spake to the parliament of . ¶ what god hath conjoyned , let no man separate ; i am the husband , and all the whole isle is my lawful wife ; i am the head , and it is my body ; i am the sheepheard , and it is my flock , &c. answerable hereunto also is the resolution of the judges in the prince's case , chescun subject ad interest en le roy , & m●ldes subjects q' ●st d ▪ ●ins ses leyes sont divide de l●y esteant son teste & soveraign . and therefore the chancellour here by these and the like phrases of potestatem à populo ●ffluxam ipse habet , is not to be understood , as applying these words in their strictness to the government of england , which is an imperial crown , and is not alloyed by the politique admissions into it , but that it , as to the integrals and essentials of regality , retains its independency : but as before i noted , where such expressions , as do qualifie the terrour and servour of regality are used , they are with relation to the first ages of the world , and no otherwise applicable to this crown , then to testifie its consent to such provisions , as are for the quiet , honour , and renown of it . and therefore the law of england being formed to take in the good of all governments , to carry on the dignity of the head over , and the security of the members under the head , must needs hence be evinced a most excellent wise and worthy government , both in order to king and people . quare ut postulationi tuae , qua certiorari cupis unde hoc provenit , quod potestates regum tam diver simode variantur , succinctiu● satisfaciam . ferme conjector , quod diversitates institutionum dignitatum illarum quas propalavi , praedicta● dis●repantiam solummodo operantur , prout ex rationis discursu tu ex pramissis p●teris exha●rire . this the chancellour adds , to shew whence , and whereupon he entred the discourse of the originals of government . 't was first p●stulationi principis satisfacere , the chancellour knew that every good man is bound to serve his prince , ultimis viribus , in body and mind , with his best accoutrements of both , and that according to themture of his own condition and the legal necessities of his prince . now the prince being young and unfix'd , ready to evaporate his resolution with the next humour of instability , that took this youth not yet radicated and well principled , his chancellour runs out into this discourse of governments , that he might upon the good foundation of universals introduc'd , make this particular instance a more advantageous superstructure . for as he will make an ill sea-man , that understands onely one part of the compass , or how onely to use the compass to one port , from whence , it by distress of weather he be diverted steerage , he 's lost , because out of his knowledge . so will he be but an ill adviser , who does not understand how to distinguish of things and men , and from them to deduce his inference . the premises considered , our text-master next makes a concession , that as democracies , so regalities do vary in some less consequent appurtenances to them , and such variations he asserts not onely as contingent , and so the act of time and emergence not fore-seen by the first designers , for of such nature some of those differences in them are ; but as diversitates instituti●num dignitatum illarum . no doubt but the monarchies of france and spain were in the first founders absolute , as those of asia now are , after they admitted regulation , especially the kingdom of france , ( the three estates and parliament , wherein were instituted , to sweeten the rigour of the monarch , and to preserve a serenity of refrigeration against the solstice , under the direct piercing line of absolute power . ) no doubt , i say , but so it institutionally ( in a good sense ) was though now it proves otherwise . but england was ever a monarchy so temperate , that the monarchs in it have ever gloryed in the non-positivity of their wills , where not according to , and in affirmance of the law. so much have they ( the more blessed princes they ) abhorred the pernicious and atheistical president , and prophaneness of the emperour frederick , ¶ who being displeased with the venetians , told them , that to prosecute them , he was resolved to o●erthrow all divine and humane laws ; and the rigidnesses of severus's , who though he would do many excellent things , yet excused cruelty , because his practice : that they were rather of probus his temper , whom vopiscus calls , dignus fortis & justus , &c. a good leader to war , a good governour in peace , an example of order and admiration in both . so that not aurelians , not alexanders , not antonines , not trajans , not claudius 's , are to be wished for , because all excellencies of them several , have been united in many of o●r princes , who have been every way furnished with virtues to admiration ; which is the prescript that seneca gives princes , as the means to deserve the love of their people , and to obtain the same of most heroick mortals . for though in the convulsions and apoplexies of time , when allegeance is prevailed against by the ill habits and vitious defilements of faction and disloyalty , princes are necessitated and warranted by prudence and religion , to use severity , where lenity is despised , and the laws of love are wholly undervalued : yet gracious kings do rather choose methods of calmness , then those that are rigid and funest ; and because rigid government has been sometimes as churlish physick , necessary , and good princes have delighted rather to be loved then feared ; such sweet princes have those , rather to resign their governments then be truculent and secure , as in such junctures of affairs they must have been . timol●on and sylla did , and augustus would have done it , if he could . which our chancellour endeavouring to commend the example , and perswasion of a just temper to the prince , proceeds to present the illustration of the following examples , in words full of modesty : yet having an affirmative vehemence , firme conjector , says he , as not positively affirming what is not in palpable proof ( as all things of so remote antiquity are not ) but fairly proposing them as probable , and offering what sober reason may be averred for them , and leaving the belief of men at liberty , to take or leave as they see cause . sic námque regnum angliae quod ex bruti comitiva trojanorum , quam ex italiae & graecorum finibus perduxit , in dominium politicum & regale prorupit . here he particularizes the institution of politique mix'd with regal , as he had before of regal government alone ; and the first he sets upon , is this of england , which he makes to be kingdomed by brute , as king iames since him has done . bu●hanan , a learned , though violent scot , has mordaciously taunted this tradition , making gyrald●● cambrensis the author of it , a doter , delyrant , and i know not what ; yea , accusing all men of folly that believe brute , other then a fiction : but cambden and leland ( both incomparable antiquaries ) as they do not cry up a story of that antiquity for infallible , so do they not disparage it as mendacious , but leave it to be believed or not , as men please , though they themselves are satisfied of the probability of it , so does math. westminster ; yea surely , e. . would not have owned the story as matter of truth , as he does in his letter to pope boniface , which knighton , canon of leicester , at large mentions , had not it been a received story , and not to be reproach'd for fabulous . i shall then take the story of brute for more then a bare bruit , notwithstanding buchanan's invective : nor shall i hold it any more a dishonour to our nation , to have brute the first king of this isle , whom they say to be of no legitimate origin , then if he were otherwise , since brute was not the first nor onely famoso of that race , whose military bravery has enfranchiz'd and redeem'd all their alloys into gemms and ornaments ; yea , so long as the norman william is remembred , there will be some abatement to the dislu●tre of them even from him the once puissant lord of this nation in that predicament . brute then i take to be a trojan by the surer side , living after the destruction of troy , about the time of ely and samuel , who when his father had trained up in hunting and therein made him expert , did unfortunately , mistaking his father for a beast he aymed at , slay him : which parricide , so contrary to the laws of nature , the people of italy resenting , expulsed him thence . he thus exposed to his shifts , casts about with himself what best and most advisedly he was to do ; necessity tempted him to action , and resolution despising the danger of any attempt , made him in his own mind a victor before an undertaker . in his wander , ( straights being the womb and sier of all desperate atchievments ; which though at first improbable , yet many times have glorious events ( as in the case of the turkish empire , and the fraconians comming into france ) having no direct aym , but taking the best road he thought proper for a booty , to greece he comes , and there meets with some trusty trojans , miserable and discontented like himself . them in servitude to pandrasus he commiserates ; and as their concerned countrey-man , whose blood boyled with disdain to see trojans of stoutness reduced to vassalage , promises either their redemption , or his own mancipation : yet he wisely concealed his regret , and served his masculine intendment by such silence , as gave no mistrust to pandrasus , or in any degree defeated the feasibility of his intendment . finding therefore , that prowess and martial activity was the darling of pandrasus and his peers , he presents himself the challenger of all comers to those manly engagements ; wherein he deserved to be , and justly was accounted the first of all the youngsters . being thus fortunated to a military grandear , he looks upon envy as a foe probable enough to advance her fatal standard against him ; and knowing that the invisible , though for midable power of that tyrant , as to others she had , so to him might be , the ruine and marr of all his possibilities , immures himself as wise and subtlely as he might , against her . as he taught his companions valour by his example , and order by his discipline ; so did he gratifie their merits by the spoil of his atchievments , endearing himself by that munificence to them , that they were but eccho's to his voice , and vassals to his commands . his first rendezvouz was in greece , whither all the roving trojans and disbanded debauche's , resort to him . ( asaracus of the race of the trojans , living in greece , giving entertainment to them on brute's account ) when in a body they were , they complement pandrasus for leave to march through his countrey ; but with resolution to force , what they could not be granted . and though their pretence was to return to troy , and to recover their native land ; yet their design was to seize on whatever their power could master , and their lust and avarice be satiated by . pandrasus looking upon armed intreaties , but as modest treasons and silent threats , answers them with an army well appointed , and martially com●ilionated , doubling also guards upon the prisoners , whom he thought confederate with armed brute and his trojan hectors . but alas pandrasus the king being in possession of plenty , was becalmed with luxury ; and brute being indigent and watchful , soon found an advantage to let him and his army into their hopes , suddainly surprises the king and his army , and seizes on the town , and for himself fortifies it , loosing his imprisoned companions from the servitude they were in , and enlarging them to be compartizans in his prosperity . the released trojans , who had smarted under pandrasus his severity , call upon brute for justice against the king ; but brute knew the meaning of those clamours , and unwilling to violate the sacred person of kings or to pull down vengeance on him by so sacrilegious a fact , thought of some expedient diversive of their clamour , and propitious to his original design of acquisition and perpetuation . thereupon he proposes in his council of war , what course they would advise him to steer , that their co-operation being in the council , the consequence , if evil , should not be onely attributed to his precipitance and ill conduct , but to that publique spirit that was the genius to it , and to that fate , which ( as regent ) commands ( under god ) the issue of adventures . amongst all the sages of that senate , none in this exigent , gave so oracular counsel , none so obstetricated the birth of the expedient to answer both brute and his trojans advantage , and king pandrasus his freedom and restoration to his crown ( thus fraudulently and hostilely evicted from him ) but old memprisius ; who being of great experience and grave courage , gave brute and his companions the swasive , not to violently come near the intemerate person of the king , whom the gods , tutelars of their vicars , do propitiously tender , and whose injuries they return in violent and tragick vengeances on their insolent annoyers ; but in as much as the vigour of his youth and the glory of his minde suscitated by those hopes that are seconds to brave and victorious undertakings , receive no content beneath their either obtainments , or the same of miscarrying in attempting those difficultyes . his counsel is that pandrasus be treated with for the marriage of his daughter to brute , and that in lien of her ( and supplyes to brute and his trojans transportation ) pandrasus be released and restored to his kingdom , and brute with his lady and armed company , left to try and take their fortunes , and to disburden greece both of their force and fears : this as wise and seasonable , neither beneath the spirit of victors , nor insolent beyond the proportion of those that were under mortal mutability , and might be shortly where king pandrasus was , had the universal concurrence . and according to it king pandrasus was appointed to be treated with . pandrasus no sooner heares of it ; but as one that blessed the gods who had given him a daughter , not onely able to redeem her genitor and nation , but worthy to be wise to the rising son of valour , brute ; accepts the offer , closes with the motion , promises supply of shipping and victuals for their common support , and gives his daughter wi●e to brute . no sooner was the marriage over but brute importunes dismission , and greece as eagerly hearkens to it . to sea the trojans set , and resolved they were to stay where ever they set their foot ; as exigence brought them out and fortune put them in , so onely force should compell them from their chance where ever it was , brute , that had a minde congenius ( as it were ) with iupiter , is said to dream that an island he should ere long discover worthy his inhabitation , and fitted for tryal of his manhood ; his undaunted courage wished for nothing more then to see the place , and finde the inhabitants that durst oppose his landing . now all the powers of his soul are become desire and resolution , and as one agog to be nibling at the prey , he bids his oares chear up and pluck vigourously , that the sooner they may discover their freedom and enjoyment , and bring their floats to the foreseen fortunate island , which is the vision he had , was thus represented as leland records it . brute sub occasu solis trans gallica regna insula in oceano est , undique clausa mari , &c. brute on the west , not far from france is plac'd , an i stand by the sea on all sides fac'd ; which gyants did inhabit heretofore , now have abandoned to receive thy store ; make to it , for 't is thine , and doom'd to be the royal throne of thy posterity . though old troy ruin'd is , yet heer t is new the world with it will subject be to you . upon this brute and his accomplices were more then ordinarily animated and using all endeavour to accelerate their recovery of this island at last effected it , and finding none in possession of it , obtained it without bloud and quietly founded a monarchy in it ; which the chancellour calls politique : because though probably there were no lawes precedaneous to brute , since no people in it when he came to it ; yet by his consent to reward the valour and fidelity of his companions by whose co-operation with him he acquired it : 't is probable lawes were made both touching his regal prerogative , and their civil security in life , member , goods and lawes , and thus according to this account , dominium politicum & regale prorupit . sic & scotia qu●● ei quondam ùt ducatus obedivit , in regnum crevit politicum & regale , scotland is that part of great-brittain which hath ireland and england on one part , and the sea on the rest of it . m. westminster will have it called scotland because it was a land compounded of scots , picts and irish ; though this tract of land had much people and many governors in it , insulanorum duces cum penè pari dignitate ess●●t , are buchanan's own words , all in hubbub one against another ; yet had it no compleat formal king before fergus ; which buchanan conjectures was about the time of alexander's conquest of babylon about . years before christ. from this fergus the kings of scotland have derived themselves , and he coming in wi●h the aid of the irish , made himself king and lord as well of the whole land as of the while inhab●tants within the same , so scot●and has continued a warlike and puissant nation , goads in our s●des and thorns in our eyes , between whom and us much blood hath been shed and hostility acted ; as in hoveden , matthew paris , walsingham , and latter histories appear , and till they were reduced to be homagers to this crown , which perhaps is the meaning of our text's ùt ducatus obedivit , we could not be quiet , no not then neither , for out they flew upon all occasions , but still we reduced them to terms : which though buchanan deny against the evident records of the truth of it , which the most learned ● . r . (a) selden on this text has to my hand produced , yet sure it is , that scotland was for many years and many kings reigns held of this crown , and the kings of it then homagers for it ; so tes●●●ies besides the prealledged authorityes , (b) e. the ● ▪ in his epistle to pope boniface . and though true it be that scotland never had an utter ●●lip●● of its ancient crown , but that it enjoyed its own lawes ; which lawes sir edward cook makes much alike to our lawes both in the kinds and parts of them : common-lawes , acts of parliament and customs , in the books of law , in the descent of the crown , in the high court of parliament , in the degrees of the nobility , in the state great officers , in the ministers of justice , in the like customs , writs , lawes ●ccordant with m. charta , in wardships with charta de forresta , c. . the proclamation of the lawes of the sheriff , sheriffdoms in fee there as of old here , in the same vocables of art , in all which that reverend sage is punctuall , therefore to him i referr therein my reader . whereby it appears lawes they have a long time had , and exercised them within it self , which was enough to declare it ever a royal kingdom ; yet the chancellour's words , ùt ducatus obedivit , are most true , if respect be had to those services that some of the kings of scotland did to this crown as its tenurers , as did the kingdoms of navarr and portugal to the king of castile , of granada and leons to arragon , of lombardy , sicil , naples , and bohema to the empire , the old kingdom of burgundy to the king of the fre●●● ▪ ●en : which is according to the practice of subjects who have military charges as dutchies now are , which though in time they may e●franchise themselves , yet originally were dependencies . and this is that which the chancellour intends by ùt ducatus obedivit . in regnum crevit politicum & regale . this has relation to the lawes by which scotland has been time out of minde governed . lawes not antecedent , to but subsequent to kings , and therefore by their power enacted ; for the king being by the eldest fundamentall laws , dominus omnium honorum , & dominus directus totius dominii , the whole subjects being but his vaessals , and from him holding all their land as their over-lord , who according to good services done unto him , changeth their holdings from tack to few , from ward to blanch , &c. they are king iames his own words . that they notwithstanding this , have the freedom of lawes arises from the king's permission , that so the law shall be , and that so he swears to observe and protect it to be ; and this is to make the government crescere in regnum politicum & regale . because god's grace working on his kingly nature inclines him not onely to regard his own greatnesse but his peoples happinesse , not how to continue himself a powerful lord over them , but to make them rich , thriving , and contented lieges under him . so did augustus carry himself , that when he might have been more then a dictator , he declined so to be , ref●sing the peoples importunity to crowd the highest honours upon him , with a pertinacy equall to that of their courtesie . yea if ever scotland had cause to blesse god for an encrease , it was that union which was made with england in the person and accession of the wise king iames , grandfather to our now beloved sovereign ; in whom not onely england remembred the union of the white and red rose in the person of h. . from whom he was lineally descended : but the union of these two ancient and famous kingdoms of england and scotland , which god having so mercifully again made happy in the person of our gracious sovereign , who now blessed be god thorowly commands them both . may they , i beseech god , never be disturbed or severed while shiloh comes , but let o lord the throne of thine anointed be established for ever and his seed and succession prosper in thy sight . aliae quoque plurima regna nedum regaliter , sed & politicè regulari , tali origine jus sortita sunt . unde diodorus siculus in secundo libro historiarum priscarum de aegyptiis sic scribit . suam primum aegyptii reges vitam , non aliorum regnantium quibus volunt as pro lege est , traducebant licentia , sed vel●ti privati , tenebantur legibus , neque i● agrè ferebant , existimantes parendo legibus , se beatos fore . nam ab his , qui suis indulgerent cupiditatibus , multa censebant fieri , quibus damna periculaq●e subirent , & c. our chancellour brings in here a quotation in confirmation of his position from the aegyptians the eldest of mortals , as they both call themselves and are by others believed to be . a people seated in the first part of asia divided into the lower aegypt , and that upper about nilus extending to aethipia south towards sienc , generally very superstitious and addicted to their gods , kings and lawes . now because he would press home this argument from antiquity , and president even of those that were readiest to supererogate in their venerations to their forementioned trinity ; he singles out the carriage of the kings of that people , as the instance of the power and prevalence law and use had with them , and by the efficacy of which their power continued less terrible then otherwise it would have been , and the author he makes use of is diodorus siculus , a greek by birth and an historiographer by excellency ; suidas sayes he lived in augustus's time or afore , which gives credit to gyraldus his account of him in caesar's time , when ever , a man of sore travail and paines he was ; for his bibliotheca cost him thirty years journey of his life , for though he wrote other facetious discourses , yet this history was the marrow of his brain , and that wherein he yet chiefly lives . out of the second book of this history our text-master collects many instances of the continence and moderation of the ancient kings of aegypt , who were not onely not nero's , deba●ched , till they endangered their own lives and prostituted the glory of their governments ; but even tiberius's beyond the proportion of man in greatness , humble , not onely to every particular as he was to haterius , whom he cryed pardon from , for dissenting but in vote from him , but also to the senate in general ; et nunc , & saepe alias p.c. bonum & salutarem principem , quem vos tanta & tam libera potestate instruxistis , senatui servire debere , & universis civibus , saepe & plerumque etiam singulis , neque id dixisse me poenitet , & bonos & aequos & faventes vos habui dominos & adhuc habeo , and not onely so self-denying , though 't is so far a degradation of majesty , that i am not willing to believe it ought above a complement , but much beyond it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. their first kings did not form themselves as exempt from law and reducing all to their absolute pleasures , but in all things and for all actions were acc●untable to the lawes ; but what was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , more remarkable they could do nothing either of mercy or severity but just in the method of the law , yea he proceeds to tell us , that the ancient tradition was , that aegypt was governed , or years by gods and heroiques ; and when those ceased , the best and most publick spirit of the nation was chosen king ; kingdoms being erected saith he , as rewards of those that were most usefully qualified : yea he tells us of one sabaco an aegyptian king , who being told by the theban's god , that he should not keep his government long and sure to him and his , unless he put all the priests to death , marching through their dead bodies with his troups ; chose rather to quit his government 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. then either to offend the gods by a nefarious fact , or to make himself great and stable , or defile aegypt with their innocent and sacred blood . this was the pious temper of pristine kings as fathers and sheepherds to tender their people and not to raise themselves on the ruins and oppressions of them ; which stories least any virulent spirit should think fabulous , let him consider the authour diodorus , whom pliny sets forth , as he that brought the greeks in credit for truth and solidness ; and (a) rualdus , the learned commentator on plutarch , terms celeberrimus historiarum conditor ; of whose bibliotheque , though many books are perished , as are sundry other most excellent works there specially named : yet this our quotation is still in being , by the benefit whereof these stories came here to be instanced in , wherein there is confirmation given , that the true end of government is likeness to god , in beneficence to mankind , in propagation of virtue , and suppression of what is immoral , which is to do , as philo says kings , that consider themselves god's deputies , and accountable to him , should and do , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. let who will laugh ( saith he ) i will not be ashamed to say , he onely can every way be a compleat king , who hath gained the pastoral skill , and by demeanour of himself in those lesser charges , learns himself what to do in the other greater . and who in the method of this observes the laws of his government , not those sensual ones of his corrupted will , which carryes him on to all riot and truculency , but those of justice , reason , and common approbation , with the people he is set over , is both a worthy man , and a wise and noble king. for 't is a dangerous thing to give way to any start from the precise rule of law and justice : no man knows where his heart will stay , who permits it in the least from equity and justice to wander , iovian was a brave emperour , armatae rei scientissimus , &c. a rare souldier , a notable civil governour , knowing how to keep distance to prevent popular insolence , and the c●ntempt of familiarity ; more grave in mind and manners , then years ; of a long ear to reach grievances , and as long a hand to redress them , severe in manners , a despiser of riches , liberal to a miracle , an excellent law-maker . oh! but ammianus records it of him , that he was an enemy to christianity , and testified it in that severe edict , that he would not suffer the christian rhetoricians and grammarians to teach openly , and the reason was , left they should withdraw youth , à numinum cultu , from the ethnique idolatry . so dangerous a thing it is for princes to give way to their unlimited wills , and not to be ruled by the just laws , which are stanch and inflexible , that it endangers the defamation of all their good deeds . therefore king iames the wise spake the mind of himself and all good kings his successours ; a king that will rule and govern justly , must have regard to conscience , honour , and iudgment , in all his great actions ; and therefore you may assure your selves ( saith he to the houses of parliament ) that i ever limit all my great actions within that compass . and thus to do , will not onely procure the blessing of god on him and his , but prevent those damna and pericula , those oppressions that make wise men mad ; those treasons and rebellions that are the issues of popular poverty and discontent ; and those are worthy wise princes , to defend themselves , and their loyal and peaceable subjects against : and that not onely by the force that subdues them , but the justice and equitable administrations of government , which shames and reproaches their opposition to , and detraction from the merit and justifiableness of them . though therefore it be impossible to give satisfaction to ill-will and resitive prejudice ; and princes are not to hope to do that , but still they shall be by refractory spirits clamour'd against ; yet to endeavour all ingratiation with their subjects , is their ease , advantage , and security ; and that done , a watchful eye over dissenters , and implacable contrarients : will satisfie the prince's conscience , that he does not neglect his duty . and let obstinate disturbers abide the peril of their contumacy both to god and their prince ; for so long as the law is the arbiter , and the judges are interpreters of it , there is no danger to the subjects while loyal and orderly . et in quarto libro sic seribit . assumptus in regem aethiopum , vitam ducit statutam legibus , omniáque agit juxta patrios mores , nique pramio neque pena afficiens quemquam , prater per traditam à superioribus legem . consimiliter loquitar de rege saba in felici arabia , & aliis quibusdam regibus , qui priscis temporibus faliciter regnabant . this is added , to make the instances confirmatory of politique government more plural ; for as the egyptian the eldest and religiousest ( in the sense , superstition is taken for religion ) of men ; so the ethiopian magistracy was of this kind . now ethiopia is that part of aphrick under the torrid zone , between arabia and egypt , called first aetheria , then atlantia , and after ethiopia , from ethiops the son of vulcan . this countrey also , as egypt , is divided into the part of it on the east , and that about the sea in mauritania , near the red-sea , therefore by lactantius the inhabitants are called rubendtes aethiopes . the chief employment of these poor heathens ( as black in vice as in face , and as far north from virtue , as they are from the world in situation , being as strabo says , the utmost men to the north pole , and beyond whom there is nothing but sea and sky ) is hunting of elephants , the teeth of which are their chief merchandize ; though they live rudely , yet have they a great veneration of order , and a willingness to be subject to their king , the first of whom was a conquerour , sesostris by name : after the people fell into a milder way of regiment , and chose their king by common suffrage ; and while that continued , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. they chose him king , who either excelled in beauty and goodlyness of body , or skill in cattle , or strength or wealth , but some superexcellent their king was . their priests of old had power over their kings , and would be so rigid and superb towards them , that they left nothing of majesty uninsolenc'd : but one of their kings dissolved that humour by force , and recovered supremacy to the soveraign power . which had , to consolidate him in his acquisition , he and the people consented to laws , as their security , and his boundary ; the particulars of which laws , though the chancellour sets not down , yet he specifies some special parts of them . first , concerning the king's manner of life , that was to be according to the canon of law , vitam ducit statutam legibus , that is , he was to live regularly , according to that notion of regularity the people of ethiopia in their laws have established : which though it may be as unlike virtue and justice with us , as their faces are unlike ours ; yet is the rule of it , as to them , takable from the law of that place and people over which they are set . which law , because it is not always , if at all written , those barbarians being ignorant of letters ; yet inasmuch , as it consists in use , custome , and practice , which are patrii mores , he is said further to be directed to do , secundum patrios mores , secondly , concerning his civil and judicial administration , that is also to be according to the direction , and not against the prescript of that ; neither in reward , nor in punishment can he go beyond or beside the law , which was à superioribus tradita . which is to be noted , because the scripture seems to affirm much to the honour of antiquity in that expression , to strive earnestly for the faith once delivered to the saints , as intimating , that the spirit of ingenuity and sincerity dwelt in pristine men and times , when divine and heroick men were legislators , who stirred up by god to rule , had no design of their own separate from publique good : but did all they did with eye to the lustre and ampliation of the people they ruled in and over . for tyranny and self-aggrandization came in with the loose and dissolute manners of gross ethnicism , and apostate christianity , hodg-podg'd , and made up into a body of rough pride and self-magnification , which prostrates all laws and dissolves all justice before which mens minds were so sincere , that with orpheus they attributed to justice all imaginable praises , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. o most just goddess to mortals , blessed , desirable , which always doest by they equity rejoyce men , &c. and when vice began to shoulder in , then 't was necessary to restrain by laws , what otherwise would be without them dangerous in the liberty of using ; which was also the wisdom of the countrey of saba in arabia the happy : in which , as in the other , pre-cited princes ruled moderately in old times . and thus the chancellour , as having said enough , and no more ( i conceive ) then was true concerning the old kings and times , ends this th chapter ; and so end also my notes on it . chap. xiv . cui princeps . effugâfti cancellarie , declarationis tuae lumine tenebras , quibus obducta erat acies mentis meae . here the prince is brought in compendiously abridging what the chancellour hath in the preceding chapter discoursed of , which account he prefaces to by a candid and princely concession to the chancellour , whose arguments , oratoriously pressed , had made a plenary conquest of his reason . and that the prince may appear a true son of milde h. . his father , and an inheritour of all those bountifull ingenuities and heroique grandnesses that do adorn and belustre the mindes and discourses of princes ; he does not onely not vilipend and not injure his chancellour for his good counsel as heliogabalus did sabinus the consul , whom because he was a brave man and not avoiding rome , that monster emperour caused to be put to death ; or remove him from him , as the same emperour did vlpian the famous lawyer , and silenus the famous rhetorician , who were both good men and must not be endured : no such treatment has our good chancellour from his young prince ; for the chancellour was no togonius gallus called : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because he was nothing but words ; nor a cneius domitius , of whom licinius crassus said , he had an iron mouth and a leaden heart , but a man of deep reason and learned judgement , the dulcimer of whose eloquence did so ravish his noble ear and heart , that he professes himself not onely satisfied but surprised . effugâsti , &c. a word not at all oratorious , for i finde it in the verbin no good authour ; but a word which our text-master his authority has brought into propriety to signifie a plenary conquest , which appears in a routing all opposition and making it quit the field , having no root nor branch , fiber or string of hopes and retreat left , untaken off ; the prince is brought in , telling him the darknesse and ignorance of his soul was such , that many prepossessions and false principles he had imbibed and was destructively seasoned with , which rendred him prejudiced against the truth of the lawes excellency , and the influence it ought to have on him . but now the chancellour having considered and soberly answered his doubts and dissolved his agregated mistakes ; he gives the chancellour the honour of his atchievment , effugâsti , &c. and well he might , for the chancellour was one of a genius elegant and temperate , free from the levities of language and the wander of reasoning , no lax perswasions did his prudence engine by , all the ascents that he made to the judgement of the prince , were upon the advantages experience gave him . and being so arrayed with power of words to chase away opponents ( sciences , falsely so called , the pre-engagements to aversation ) and with strength of matter to confirm him in the real solidity and ground of his transmutation from darkness of minde to light of , not onely discovery , but apparent satisfaction , which he is brought , in expressing , no wonder though , in the following words he prosesses as he does . quo clarissime jam conspicio , quod non alio pacto gens aliqua proprio arbitrio unquam se in regnum corporavit , nisi ùt per hoc , se & sua quorum dispendia formidabant , tutius quàm anteà possiderent . this is added as induction to the subsequent matter , and it has many notable particulars insinuated in it . first , the subject matter , as i may so say , of great governments in their rise and ascent , e gente aliqua . gens is more then a family , for it contains agnatos & cognatos ; for whereas familia referrs to the c●gnomen or superadded name ; gens takes in the sirname or originall name as it referrs to the common ancestry , whence all the particulars of the family issued ; so festus defines it , gentem esse quae ex mul●is famil●is conficitur . gens then , though it be largely taken for a nation , yet primarily it signifies a kindred in nature : so suctonius mentions ex gente domitia duae familiae claruerunt ; thence is it that all things belonging to families are called gentiliita , the badges of their honour insignia gentilitia , the memorials of their ancestours riches gentilitae haraeditates , the solemnities kept by families gentile sacrum and familiae solenne , to go habited after the manner of a family was to be gestu gentili , and to be near of a name is termed gentilitas nominis . this notion is involved in gens , which is that of which politique bodies consist . then secondly , this clause sets forth by way of predicate what these kindreds did do , that was , corporare in regnum ; nature taught them that united force was preferrable to single , that the weaknesse and dislustre of the single parts of the body was provided for in the union of their situation in the body , where in their conjuction they were both fair and comely , and this lessened them to seek the comforts and conveniences of life in combinations and forms of living together in civil society : and when these rendezvouzes are the lodges of peace , order , arts , piety , and do not harbour treason and faction against government , they are in policy and as staples of trade , riches , and learning to be encouraged and ampliated . it 's true octavius augustus is mentioned by suetonius to dissolve some corporations and that justly , because they were factions and they made a party on purpose to disturb government ; but even then , he did not meddle with the collegia antiqua & legitima ; those that were settled by time and law were kept up in their beauty , because they had a care to give no just suspition to their governors , but shewed themselves forward in fidelity , and thereby secured themselves from eclipse , which otherwise they could not have done . for governours are to use prudence both in order to their own establishment and their peoples peace , which corporations are least of all to endanger because they have the most to lose by trouble and turmoil . cities and towns then being governed under princes by prudent magistrates , to whom they legally approve themselves loyal and dutifull , are no doubt the strength , glory , and riches of any monarch ; which numa first apprehending , put , as did severus after him , all the arts-men of rome into companies , vintners , victuallers , cooks , &c. setting wardens over them and appointing them their sphere and motion : and whether from this romane example , or from the same spirit in brittish magistracy , this way of incorporation first began in england , i know not ; but sure that it has been and is continued with great advantage we see and know : and from them , have in all times come many of the great estates and families of honour in the nation , but this is the honey that jonathan mast not tast of . and therefore i will proceed to the text's corporavit in regnum , which is the noblest corporation , because the bringing of all the pettite and distinct corporations into a joint stock or publick mass which is called a kingdom ; the government of one over , all , independent on any but god , to whom onely personally he is to give account . and this is so noble and necessary a corporation , as i have heretofore made good in the instances of the dignity of monarchy , that nothing i can add more , but to remember men that in this corporation there are all the ends that reason can aim at for the comfort of conversation , concentered . . to live . . to live pleasantly . . to live safely . . to live profitably . . to live peaceably . . to live blessedly . these are all the fruits of this corporare in regnum , but our text referrs onely to the third safety , which it makes the cause of this corporavit in regnum . thirdly , this clause discovers how this corporavit in regnum came about not vi cogente , sed ratione eligente & dirigente , proprio arbitrio sayes the chancellour ; for though i know , as before i have touched upon , some nations being victor'd , have been forced to take the impressions the power over them would force upon them : yet many of the elder governments were the effects proprii arbitrii , or at least actu postliminio they confirmed such popularibus arbitriis . now that which the text calls proprium arbitrium was not the vage giddy humour of the people as they were in face actuated by faction , humour and lawless impetuosity ; but it was their judicious , sober , and religious consent according to the dictates of prudence for self preservation and publique advancement . for if in the latitude of its corrupted sense the peoples consent and will should be regent ; as probably they would chuse a bramble-government rather then sit contented under their vine ; so their actions would be so far from order and religion , that their proprium arbitrium would be blood shed , confusion , anarchy ; yea , were not kings and magistrates better to popularities , then they do often wish , or they would in some humours have them , had they the power to hinder them , there would ere long be no corporation in the world. such tygers and monsters are men become , through the mistakes of religion , that 't is rare to find order in communities , nor more civility then is the effect of fear and force . hence the text subjoyns the end , why nations did incorporate , vt per hoc se & sua quorum dispendia formidabant , tutius quam antea possiderent . when man by sin had broken his peace with god , then not onely the creatures were let loose to great degrees of insolence against him ; but the powers of mans soul that before were orderly and restrained , then rioted one against another , and all against him that rebell'd against his maker . and then the security that men had each with other , while they were at truce with god , gave up its charter and priviledge . now every man grows a cormorant to his fellow , the weak the prey of the strong , and the fewer the spoil of the more in number . this keeping men in terrours , lesson'd them recollection of their dispersion . and therefore of old they did gather together , and make a common pact to defend each other ; and to method their common defence , appoint a head by whom they would be led and ruled . for nature teaching self-conservation as a primitive lesson , found out no better or other method , then that of government ; nor any government so peculiarly safe and contributive to peace and security as that of one . for besides , as i said before , monarchy is of god , and generally approved the perfectest of governments ; it has been found , that more often and fatal disturbances have fallen out in aristocracies ; or democracies , then in or under monarchy . antoninus pius was so happy and wise a prince , that egnatius writes , that for years under him there was no war , because love and fear strove for mastery in his time ; and as the one permitted not his friends : so the other affrightned his enemies from attempting any thing against him , whom the gods so favoured , and they ought as a god to venerate . and the same authour tells us , that if antoninus philosophus had not been in the empire , when he was ; then the roman empire had undoubtedly fell . whereas it is rare to find such security and peace under other forms , though i confess the venetians are a noble state , and prudently successful : yet in many dukes times they have been shrewdly threatned subversion , partly by their home-bred emulations , and partly by their forraign assaults . when men grow great and popular , they prove often earth-quakes to nations and places ; for do but discontent them , and all is in a flame . thus rome felt caesar and pompey , catiline , mark anthony , sylla , and who not , that had a name and would thereupon be sure of an antagonist . so in italy , between the state of venice and genoa upon point of rivalry ; so great were the animosities between those two states for years together , that they never met one another but with the mettle of furies and the spight of devils : yea , though they had the trevisian sports to dandle them into a calmness ; yet even there , their jest became a fatal earnest ; and so much did their stomachs disdain captivity each to other , though upon meerly the contingence of war ( which ebbs and flows victory , by an unsteady and blind event to men ) that andrea dandulo , one of the venetian generals , being taken in a fight , and carryed to the genoesse's gallies a captive , rather chose furiously to beat out his own brains against the side of the gallies , then be a prisoner of war to his countrey 's enemies : and amongst the venetians themselves , what plots have the governments of many dukes been endangered by ? witness that of marino baconio , who plotted to kill pietro gradonico , the duke , and such of the senate , as pleased him not ; and that more fatal one of bajamonti tepulo , who assaulted the duke and senate in the palace ; that of the rabble in dandalo's time . these and such like do shew , that as all governments are upon prudencies tending to conservation , so are those probablest best effected , when the multitude are anticipated their mad fits , which ordinarily they are , more in regalities then other forms . but however in all forms , the intent is to live peaceably from spoil , assault , depredation , and oppression ; which in singularities or lesser numbers , not being either so probable or possible , incorporations into kingdoms were thought upon and effected . for kings for the most part have so much of divine magnanimity in them , that as they were in the first time of the first ages chosen governours , and since are justly become lords of their countreys to do good offices , as fathers , shepherds , husbands , pilots , numens to them : so do they delight ( some particulars onely excepted generally to express grandeur of mind , in order to this design of their dignity , which claudius , no very good man , but a brave prince , shewed himself clearly and generously in . for when it was debated in the senate , whether he should first resist the goths or the tyrants , both which threatned him and his empire , gave counsel , that first the goths should be encountred with , because they were enemies to the government and roman common-wealth , whereas the tyrants were onely enemies to him , as prince and head of the empire . quali proposito gens hujusmodi frauderetur , si exinde facultates eorum eripere possit rex suus , quod antea facere ulli hominum non licebat . this is the argument that the chancellour brings as inferential from the precedent reason ; for posito , that governments were of old by consent of the people , and that such their consent was to better their condition , to defend them from the rapes and violencies of men of fierce spirits , who came upon them with sword , and over-powring them , took away their goods , forced their wives and daughters , and sometimes took away their lives , to prevent the clamour of their fact . these things yielded , it will ( says the chancellour ) rationally follow , that if the governour they put themselves spontaneously under , do with their bodies , goods , and souls , what he pleases , they do not avoid the inconvenience against which they intended their subjection a muniment , but are under the same misery under another name , and so are little less then miserable , through the incorrespondence of the actions , with the intent of the designers of them . for though true it be , that casualties may alter cases , and sweeten demeanours , which but for them would be tragical and barbarous . which the historian offers in vespasian's defence ; in whom avarice was either no vice , or not so great an one , if either the calamities of his reign , or the good use● he put his exactions to , be considered . yet truly it is below princes to be unmindful of god's mercy , and the laws lesson to them : and seldom are they happy , that resolutely and through design forget either ; nor can they by the strictest edicts , or the subtlest blinds , hinder people from observing , when so they do : but yet if some princes may , others recompence their omissions by supererogations . good king edward the first spake what the mind of all his good successours have said , and done , en primes voet le roy & commaund , que le peace de saint eglise & de la terre soint bien gard , &c. first the king wills and commands , that the peace of holy church and of the kingdom , be inviolably kept and maintained in all things , and that iustice be done to all , as well poor as rich , without respect of persons . nor are the actions of princes so eccentrique , when they are driven by the greatest and most enraged impetuosities , but that even then they have many sparks of justice in them , at least are much better to be interpreted , then popular insults or the lordings of fellow-subjects ; yea , one time with another , there have been more heroicisms acted for publique good by princely spirits , then other men , and less real mischiefs by them , then by men of meaner origin have bin introduced . what may we call the action in giovanni soranza the duke of venice his time , but a miracle of love to venice : for whereas the city and territory of venice had been a long time , and then was under the pope's interdiction , which caused unspeakable loss to them , and crossed their affairs in all parts of their correspondence . and pope clement took the business of ferrara so hainously , that he would hearken to no relaxation , though often and earnestly solicited thereto , but obstructed any further audience of them . which francisco dandalo , a noble-man of great honour seeing , came into the pope's presence , and lay prostrate on the ground before the pope's table , with an iron chain about his neck like a dog , until his wrath being appeased , he took away that note of infamy from his countrey . i say , what can this be called less then a notable instance of great love to ones countrey , which onely could come from a princely spirit : which action had its reward , for not long after he came to be duke and procured a constitution , that his country should never be excommunicated by the pope , for such like action , or any other action whatsoever . it follows . et adhuc multò graviùs populus talis laderetur , si deinde peregrinis legibus , etiam ipsis forsan exosis , regerentur . inconveniencies seldom come single : when princes are other then they ought to be , lawes will signifie little to minde or manage them ; and ever it is seen , that as virtuous and pious princes reverence lawes , and will do nothing knowingly and designedly to the affront and denigration of the credit of them , but let the law have a free passage , and countenance the modest and legall averrment of it : so the contrary princes take pleasure in nothing more then in despising the lawes and making them truckle under their contempts and violations ; this the chancellour calls laesio populi : and that because the lawes are the asylum and refuge that subjects have , and if that be no shelter to them , they count themselves miserable ; for some law must be , and if the native country lawes do not rule , forein exotique law must ; and that , the prince is brought in acknowledging too heavy for their stomachs to bear . nor have any princes well advised ever endeavoured so to tempt the people to wince and kick , as they ever have done , against laws introduced in rivalry with , or supersedal of their country lawes : and princes are never so accomplished for their governments , as when they make the knowledg and skill of right conducting their publique affairs , the that of their excellency . which that brave king edward the first , then whom no man was more sad in counsel , free in utterrnce , secure amidst dangers , cautious in prosperity , constant in adversity , this prince i say , whose justice made his lawes renowned , and yet continue for the most part to this day ; he was a great admirer of the lawes and directed them to the good of the kingdom , as he expresses in the act . regni , que nostr● seignior le roy ad graund volunt et desire del estate de son realm redresser , &c. for thereby shall they understand at the first hand what the people love and hate , wish and fear , are pleased with and grumble under ; and by this shall they make the law their guide , and not listen to forein guises and customs , which are often more dangerous then advantageous to them ; yea , saving that mutuall correspondence that nations have each with other , and saving that necessary pass and repass that men have to and from every part of the world , wisdom of government has exterminated forein things as much as civilly could , especially in lawes preferments and fashions . not but that there may be good use made of some forein and unwonted things when urgent occasions require them , but to preferr them in love and esteem , because forein , has been ever avoided by wise princes ; yea , and that because they are execrable in natives eyes , who generally love their country usages , customs , lawes and fashions , with a zeal that speaks a kinde of scorn of what is unlike or contrary thereto , that look as the athenians were so zealous , that they enjoined a severe punishment to any , who being a stranger took benefit of their law , by an actio peregrinitatis , which brought the offender first into bands , then caused him after proof thereof to be sold , and that at so high a rate , that this buyer should vse him cruelly to have , as we say , his penny-worths out of him ; and lege papia foreiners were to quit rome ; so in france , spain and all countries , strangers and their influences are disfavoured by their lawes , as choppinus has collected to my hand the instances thereof ; and all nations looked upon strangers ( other then upon travail and businesse ) with no good eye , but made them uncapable of publique offices , and with us the chronicles tell us the complaints against them and the domination of them in h. . time , in e. . time , in h. . time , in which they have been ever forward by their counsels and assistances to further unusual and illegal courses , and for it have been exosi . not that our nation is naturally uncivil , but because hath found the experience of it ; and therefore the text joines to peregrinis legibus exosis : * since even all unusuall and not beloved things have been accounted countd forein , and thence in our chancellours words exosi , that is , perfectly hated ; hated as david did the haters of god with a hatred 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of compleatness and universality , at all times in all degrees ; rabbi david expounds it by magnoodio , imò maximo odio odi illos , so is the sense of exosi among the latins , the preposition ex adding vehemence to the notation of the word , to which prefixed . thus in the very word tholossanus uses it , nomen regis romanis summoperè esset exosum , and in the like words other authors , so turnebus notes pliny to use exalbidus ; and pulman on that passage of suetonius where caligula is said to be pallido colore , translates it expallido , adding ex enim prapositio , vim & potestatem verbi amplificat , thus exanimo is rendred by perterrere , exardere by valde inflammatum esse , exarescere by sole & vento penitùs siccari , exaturare by that we call a glutting a mans self , exaudire by perfectè audire ; and so our text when it said eísque exosis , means such a hatred of grievous and illegal burthens , as makes subjects complain to god night and day in their prayers for relief from them , yea and so perfectly hate the ill counsellours of them , that they seldom or never have better ends then gaveston had , or then michael de la pool and cardinal woolsey had , whose high and illegal actings were by the lords and judges articled against as high and notable grievances , and offences ; misusing , altering and subverting the order of your graces lawes , ) and otherwise contrary to your high honour , prerogative , crown , estate and royal dignity , to the instimable great hindrance , diminution and decay of the universal wealth of these your graces realms , they are the very words of the preamble to them , et maximè si legibus illis eorum minoraretur substantia , pro cujus vitanda jactura ùt pro suorum tut la corporum , ipsi se regis imperio , arbitrio proprio submiserunt . this is added to shew , that as nothing discourages people more then not to be answered in the end of their loyal confidence , so nothing is more to be admired in and valued by princes , then the practise of doing what they are by office and conscience bound to do ; that is , ruling by law to the prosperity of themselves and their subjects . for as the king is then said to command , when he wills by the law any thing to be done ; and the king cannot do it by any commandment , but by writ or by order or rule of some of his courts of iustice , as sir cook 's words are ; according to which the statute marlbridge c. . sayes , dominus rex de aliquo contemptu sibi illato alium iudicem in regno quàm curia sua habere non debet ; so the king is then said to act like himself not onely to his subjects , but even to his own souls health and happiness , when he does what he does precisely according to rule and prudently according to seasons : for this is that which will best comfort him in his sicknesse and death , that he has walked uprightly before god , and done that which was right in his sight , yea if a king should put the day of death , as a day of evil , far from him , and fancy ( as i may so say ) a temporal eternity , generous and patronique actions to subjects are the onely way to accomplish it . augustus made his subjects happy and rich by governing them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , according to law and prudence ; looking upon them as reasonable creatures and treating them with no more rigour , nor no less goodness then the paternal charity and magisttatique care he was to expresse towards them required , and this so abated the sowerness of the romans against soveraignty , which before they were prejudiced against , that they by decree of senate thought fit to trust him to doe even what he pleased 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that he should be absolved from the band of law , and that he might do and not do what he would . for since the end of society is preservation , and of the best society , politique monarchy is to render the subjects of it happy and secure , which our text makes to consist in that by which non minoratur substantia , and in that which furthers corporum tutelam , there is good cause for princes , as ours ( blessed be god and them ) mostly have done to regard the effecting of this common and commodious intent . for the nature of subjects is , let them but be free in their persons from slavery , and enjoy their fortunes according to god's blessing upon their industry , and the lawes fixation of them in it , and they will not onely loyally observe and cry up their prince as the most deserving darling of their hearts , but will bear up his person on their shoulders , and his dominion and regall title on their swords points ; yea , they will make him terrible to his foes , who is thus a father to his friend , and a saviour to his lieges . non potuit revera potestas hujusmodi ab ipsis erupisse , & tamen si non ab ipsis , rex hujusmodi , super ipsos nullam obtineret potestatem . this clause relateth to the laws of nature , and the institution of government according to it , and that giving no one man a superiority over another ( unless by the consent of men , who do in themselves give the general law a restraint ; which is ( as i conceive ) lawful , and has been the mother of all constitutions . ) the chancellour's deduction will be rational , that supposing in the first ages and first constitutions the forms of people politiquely living together , to be in the people , either they must act to their own injury , or else design such a government as much preserve them and theirs : which politique government joyned with regal doing , it follows , that such a kinglyness as was not originally violent , but entred upon by the will of the subjects , and continued and carryed on with suitable goodness in the successions of it , must be that which originated from god by them , who by submitting to one , proposed to themselves security to themselves , according to the laws and agreements of their politizing , which cunaeus says was the cause moses did command from god the people to choose a prince over them of their own people , ( not onely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. to signifie , that there ought to be a free choice of the people , and after a confirmation by god's lot , as philo's note is ) but even that government might be the more firm , and apparent●y beneficial , he appointed that all things should be done by law , and nothing besides , or against it . and therefore as it cannot be supposed , that all communities of men were hostilely conquered ; but though some were , others were compaginated and grew into kingdoms by consent . so can it not be thought but those that so did , did in their so doing , design as a dignity to their chief in consideration of the erection ue had , and the good offices he did in the just and wise management of himself in it ; so a benefit to themselves and their successours in subjection , which they do no otherwise find , then as their laws , persons , and goods , are kept free and secured , according to such their constituted laws . and therefore it was a most savoury and christianly wise counsel of the once phoenix king ; ¶ never ( saith he to his son ) charge your head with such a crown , as shall by its heaviness oppress the whole body , the weakness of whose parts cannot return any thing of strength , honour , or safety to the head , but a necessary debilitation and ruine : your prerogative is best shewed and exercised , in remitting , rather then exalting the rigour of the laws , there being nothing worse then legal tyranny : thus he . but it follows , e regione aliter esse concipio de regno , quod regis sol um authoritate & potentia incorporatum est , quia non alio pacto gens talis ei subjecta est , nisi ut ejus legibus , quae sunt illius placita , gens ipsa a quae eodem placito regnum ejus effecta est , obtemperaret & regeretur . here our chancellour asserts the law in absolute monarchies of conquest-foundation , to be other then the former , and that upon no less valid grounds . for supposing the victor to be a vassal to justice , which restrains from violence and irrectitude , even when there is the greatest advantage and provocation thereto . i say , allowing this the wills of victors over them , whom they have manlyly overcome , ought to be as effectually binding to obedience and contentedness under the providence of god in the pleasure of such princes , as in the former case ; for as here people provided laws of regulation and preservation of them , in what they had against the abreption of it from them : so in this , they wholly are at their prince's pleasure for their regulation and preservation , because they have nothing of their own , but what is his , ex opere operato of his conquest . nor did nimrod , ninus , belus , of old ; or do the leviathan monarchs of the east at this day , make any bones of swallowing all their subjects have to satiate their pleasures ; nor do they think they do injury thereby , because their dominion is absolute , and all their subjects have is theirs , in what sense he pleases to interpret it , who is the lex loquens , even when the laws he utters are illius placita ; not inventa deorum , but retenta pravorum principiorum . and if this be the liberty of those monarchs , how much is the subject of england to bless god , and magnifie his prince , who permits , and what 's more , protects the law , to warrant the subjects while loyal and dutiful , the free use and benefit of the law ; yea , and who does not hold himself free from the directive and conscientious obligation of the law , wherein it has a tongue to utter its sense to those purposes . yea , that the words of a king may make us english-men , either very grateful , or the contrary , hear them from the prince i delight to quote wisdom and goodness from , no condition , saith he , can make a king miserable , which carries not with it , his souls , his peoples , and posterities thraldom . neque cancellarie , à mea hucusque memoria elapsum est , quas alias in tractatu de naturalegis naturae , horum duorum regum equalem esse potentiam doctis rationibus ostendisti ; dum potestas qua eorum alter perperam agere liber est , libertate hujusmodi non augetur , ut posse languescere morivè , potentia non est , sed propter privationem in adjecto , impotentia potius denominandum . this the prince is introduc'd to mention , not onely to insinuate to great men , that their duty it is , gratefully to remember fidelity and love of counsel to them ; but in preface to the memory of an excellent treatise of the chancellours , in which the fuller debate of the matter in argument is handled . the title of the book is here mentioned to be de vigore legis natura , a book no doubt of worth and weight , not onely because the work of the authour , who in all things was a very great master , but also of the consequence of the matter , and the testimony it has to be backed by learned reason . pitsaeus mentions it , as no doubt there is but it was common in his time : but most of his works , besides our text , are lost , at least in such private hands , that they are as good as lost , which i ingenuously profess , i should be loath , if i could help it , any line of our text-masters should be : but it fares with books as with pictures , that pass from their first to after and other owners , till at last they are unknown almost whose they are , or kept to the solitary use of their proprietors by purchase from those , who would admire the lineaments of them as much as their impropriators . that then there was such a book is certain , and that he is onely honourably remembred by this our text , is as certain . for that herein he has a monument far more durable then any of marble or adamant ; nay , when his body interr'd i know not where , and inscribed with i know not what epitaph , is a secret to most of the nation ; this that he hath done to the honour of the english laws , and the consolidation of a wavering prince , is publike to his name and glories , perpetuation and augmentation . that while herostratus was remembred for his villany , in burning the ephesian temple the worlds wonder , and phavorinus for three strange things which he acquired ; that being a french-man he learned greek ; that being an eunuch he was thought guilty of adultery ; that being an opposite to the emperour adrian , he yet lived and evaded his fury : and the roman emperours are monumented by suetonius , and others for their deeds of prowess , liberality , lubricity ; and the like things our worthy is mentioned in the pyramid of his wit , and has his own hand both the pen and epitaph to him ; which i the rather note , because many not onely ignorant , but lazy , morose and capricious learned men , transported with a fret against the high tide of learning that is at this day by the over float of the nilus of divine blessing on industry and ingenuity , ( which they would tether to themselves and straiten as to its diffusion ) are so virulent against writing more books , that they cannot but censure with mordacity the labours of writers , and contemn them as far as they civilly dare therefore , which i dare call so great a weakness and vanity in them , as deflowrs the merit of all their other excellencies . nor do i believe there is any true art in any man that envies the good eye of god on others , in making them instruments of addition to men and ages science . yea , i know there can no inglorious principle raise men that write to deny themselves the pleasure of life , as they must therefore necessarily do , if they were not excited to , and kept in the resolution of it , by that inclination that virtue works to beneficence , and that testimony they would give to men and times , that they did not live unprofitably , as all they do , that die in person , and bear their learning out of the world with them . and for my part , i think tacitus his commendation of haterius , to be as much a reproach as eulogie to him . haterius ( said he ) was a senator by family and wisdom , noted for eloquence in speech , but died intestate as to any records of it . what the age he lived in accounted him , was more natures bounty then his care ; for he did all on the suddain , as inconsidering after-times , so becomes his immortal wit mortal , and the main of his eloquence inaudible to us . thus fell it out with haterius , and thus will it fall out with those negligent and incontributive souls , which treasure up ( miser-like ) for no purpose , but to be said to be learned ; not considering , that there is no wisdom nor counsel in the grave whither they go ; and that it is a kind of self-felony to abbreviate the life of god's gifts in them ; which they do , that make themselves , though learned , die and be forgotten , who by their works of learning would live as long perhaps as homer , or virgil , or any authours , which do out-last lands and conquests , families and issues . this premised , i return to our chancellour , concerning whose learned work the prince is produced in testimony . and that to which he speaks is to this assertion , that the power of both absolute kings , and kings by politique constitution , are equal ; not as they are in actu exercito , for so they do evidently differ , but as they are in actu primo , that is , as they are proper exercises of power . for power as descending from god , and a ray of his lustre accompanied with justice , are in confort with equity , which environs and circumvallates it . and as god can do nothing but what is just , because every thing that is in god is god , and every thing that proceeds from god is as god , good and holy and just in its cause and foundation : so every proper act of power supposing an ordinateness to a good end , and by right and suitable means thereto , cannot exceed the bounds of such restraint , without a forfeiture of its nature and denomination ; which makes , that vice and excesses are no proper expressions of power , but rather privations of power , sin having defaced the image of god in man , and rendred him naked of that ability and exercise of a right understanding , and a conform'd will to the rule of rectitude , and standard of power . for the abusion of power in its conversion of itself to one mans accommodation , with the injury and vexation of millions of others , as well the image of god , as that one , is not the true tendency of power ; nor does dare formam to power , quâ such ; but is rather the absence of power , in which lust and lawlessness , as master of mis-rule , rants and rages to an excerebration , which is the reason that laws of modification are taken in , to qualifie the distemper of surprised power . for if the soul of man were emancipated by virtue , it would not need any regulation or monition , besides that of its inward tribunal , which because sin does usurp upon , has some relief from those extern adjuments . otherwise , suppose a prince so tender conscienced as david was , when himself , that he durst not cut off the lap of saul's garments . suppose his heart so soft and flexible , that with iosiah he melts before god , and dare not abide the hearing of the law , which so represents his own sins to him , that he is ashamed to make his returns so unsuitable to god's indulgencies to him . suppose a prince so chaste , as was restrained abimelech , and upright samuel , in whom there was no immorality visible . here the great indulged power to such a prince , would be no other then what expressed itself in just , holy , and good actions , because the power of them is in being and full oriency in the soul : but when the inundations of justice , kindness , and equity breaks out , then is not the heighth of power to be accused , but want of power by a prevalence of weakness against it . moses was as mighty a monarch as ever was ; his will was the law with israel : yet do we not read , that ever he did that to israel that they complained of ( excepting onely in their petulant and frenzy fits ) and the reason was , he proposed to himself no by-end ; no self-aggrandization to lacquy whereto he was to express lubricity and weakness . this is evident not onely in scripture , in the example of ioseph , who had opportunity , and probably personal power enough , to have unlawfully enjoyed his mistriss ; but because god brought into the presence of his mind , tamper'd with by her fond solicitations , the power of integral nature , telling him it was an immorality , which he as a man was not to hearken to , and a turpitude ; which as a saint he was to defie , his mistriss rested untouched by him , notwithstanding all her resignation to him . for though true it be , that god's restraint on men be the superadded curb to exorbitancy ; yet true also it is , that there are laid from nature , though lapsed according to the good constitutions and habits of some men , or the particular extemporary or premeditated resolutions of others , such restraints visible and emanant , as make the opportunities they have to the contrary , frustrate to all ends but those of virtue and power , as in contradiction to turpitude . thus though tarquin's weakness may force lucrece ; * yet , alexander his power over his passion may preserve darius his wife , and mother , and brother , though under his martial power . and though attila may come with fire and sword , and salvadge-like devour countreys ; yet an antoninus may preserve his conquests , and do the conquered no harm but good . while a belteshazzar may riotously drink in the bowls of the sanctuary , a cyrus may preserve god's interest intemerate : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. ' t is ( saith the philosopher ) a main evidence of magnanimity , not onely to bear all conditions , but not to admire delights , applauses , power , nor victorious successes , but to look upon ones self as concerned to do more noble acts , by how much the greater opportunities we have to effect them . for the mastery of nature in her unjust postulations , is the true specimen and evidence of power ; vices and esseminacies are but privations in adjecto , the absences of impedients , and the presence onely of what is a member of the conspiracy . and this is the reason why absolute power is so formidable , because it has the temptations of almost impossible refusal , unless there be a resolution of dethroning self in the irregularity of its absoluteness . nor will any man in power be good in his office , except he resolve not to make the king of france revenge the quarrels of the duke of orleans . caesar borgia that could not command his revenge , but act it must against his nearest relations . and herod that had no power to abstain from herodias , nor to deny her , though she sensually by her daughter asked the head of the second bravest man of the world iohn baptist. alphonso that king of naples , who never made men fair weather and good chear but betray'd them , murthered ambassadours against the laws of nations , sparing none whom to ruine was his advantage , forcing subjects to sell their commodities , and buy them again of him at his own rates ; fell church-patrimonies to iews , and count religion a thing of nothing . men and princes that do thus are no princes of power , but vessels of weakness . for let their titles be never so absolute , yet powerless princes they will evidence themselves , that thus are vassals to lusts , and impotencies of soul , privationes in adjecto , such privations of true power , as no privation besides it , is . agesilaus , king of the lacedemonians , being asked what were the chief and most requisite qualities of a king , replyed , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c courage against enemies , kindness to subjects , and reason in counsel to improve opportunities aright , and not to go against the intent of providence in them . and therefore the chancellour's assertion , that both the regal and politique king are equal , amounts to a truth ; not onely as both of them are equally from one fountain , god , and to one end , ivustice ; but also as the power of the absolutest is but such , while it keeps within just bounds ; nor is the expressions of the regal politique king , though never so restrain'd less then power , because it acts in conformity to the law of its institution , which is to the preservation of the prince's own conscience from violation , and his subjects bodies and goods from oppression and injury , which the chancellour commends in all princes , to love and value , considering the end of power , which is as it follows . quia , ùt dicit boëtius , potentia non est nisi ad bonum , this sentence out of manlius severinus boëtius is much to be regarded as well for the truth of it as the authority of the author who was a most noble roman senatour , for learning and art the glory of his age and time , which was under the empire of zeno ; theodorick the triumphant goth had so great a value of him , that he knew not how ( as he thought ) to write enough of him , quascunque disciplinas vel artes foecunda graecia per singulos viros edidit , te uno auctore , patrio serm●nt roma susc●pit , are the least of his words to him : yet even this incomparable patrician , whom any man but a goth would have valued as a none-such ( agnoscant per te exterae gentes , tales nos babere nobiles , quales leguntur authores , are the goths very words ; ) even this man was with symmachus his father-in-law a patrician too , and many others of right virtuous parts and noble extract banished rome , and after put to death , upon bare suspicion of inclining to rome's enfranchisement ; or as murmelius has added to it , because he was bold against arianism , with which the emperour was infected and plaque-sick of ; which quarrel purposely picked , and offence unjustly taken at his learning , eloquence and integrity , endowments too manly to pimp to base and illiberal projects , robbed the world of his excellent life , and that orb of the lustre of his transcendencies , whom iulius martianus rota in his prefatory epistle to his works doth more at large set forth , and murmelius also in his prolegomena , this was the authour . the sentence here out of him quoted is no less ennobled by its allyance to truth , then to him the utterer of , 't is no doubt out of his books de consolatione philosophiae , which he wrote when in banishment at ticinum , five they are in number , according to tully's five books de finibus bonorum & malorum , and though all his large volume , on parts of which murmelius , agricola and porretas have commented , are manifesto's of his transcendent learning and most christian accomplishment ; yet his books de cons●latione philosophiae are the flower and dainty of them all ; and though he was put to death about the year ann. . after christ , yet do they survive to render him remembred even to this day . i confess , yet i have not found the very words here quoted in him , but i have found what confirms them , extrema verò est servitus , cum vitiis dedit à rationis propriae possessione ceciderint . for he finding that power originally god's and part of his essence is not exercised by him but to the good purposes of creation , conservation and glorification , and knowing that the trusts of power , his peculiar , which he graces men with , is in ordine ad bonum , and is onely such while it is so , and when it is not , ceases to be power and is the privation onely of it , and as it were a non ens , no creature of god's , no derivative from him but an usurpation of mans upon the permission of god , as i may so write . he i say , knowing this and that by the sad experience of his own suffering under the undeserved rage and implacable fury of theodorick , who was onely powerfull in the multitude of vices concentring in his soul , and rendring the faculties of it weak and opposite to good , gives this monition to him and to all men in condition like him , that there is no power but ordained for good : and therefore that either great men must be good and use their greatness to promote goodness , and discountenance the contrary , or else they have no power in them ; for that is onely to good , which vice and truculency is opposite to . and hence he inferrs , that to be able to do wickedness is onely the power of sensuality , which being proper to beasts is unproper to men , whose power is ordinated onely to good . quo posse malè agere , àt potest rex regaliter regnans , liberiùs quàm rex politicè dominans populo suo , potiùs ejus potestatem minuit , quàm augmentat . this sentence supposes , that the more princes are left to their wills , the more temptation have they to inordinancy ; and the more invitation they have to it the more probability have they of surprise by it ; and the more surprised they are , the less will they boggle at the sin and folly of the lust that victors them ; which danger so really p●rillous to the interest of god in us , he layes down more probable to seduce and prevail upon absolute princes then politique ones . and then next he concludes , that the prevalence of such temptation is so far from declaring the effects of it , the creature of power and expatiating the fame of him for it , that it is on the contrary an argument not to be refuted , of impotency in the soul , wherein vice alone has the command , and man being under the tyranny of the beast , the body is made a non ●ns as it were to all impeding of this abusion of power . and hence it is , that i am so far from fearing men for their fortunes , armies , titles , favours in the world , when they are vicious , that i cannot but despise their fury as weaknesses , their favour as danger , their gi●s as poyson to integrity ; and conclude them in the hell of misery , while in the heighth of their jollity , and amidst the pomps and gaities of their attendants . it was a brave character eutr●pius give anteninus pi●s , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a most honest man he , while a private man was ; but more , if possible , then an honest man he was when in the empire : then he was as good as all the opportunities to goodness co●ld make him , and no more evil th●n the presence and predominance of virtue would permit him . oh there is no vi●tue more kingly , then generous greatness of mind , and royalty of humour . malcolm the third of scotland , was famous for this ; so was king iames in the case of bothwel : and so was the late king charles , whose words were ; for those that repent of any defects in their duty towards me , as i freely forgive them in the word of a christian king ; so i believe you will find them truly zealous to repay with interest that loyalty and love to you , which was due to me . so again , i have offered acts of indempnity and oblivion to so great a latitude , as may include a● that can but suspect themselves to be any ways obnoxious to the law , and which might serve to ex●l●de all future iealousies and insecurities : i would have you always ( meaning our now soveraign ) propense to the same way : when ever it shall be desired and accepted , let it be granted : and so blessed be god and the king it has been , not onely as an act of state-●olicy , but of christian charity and choice . thus that brave prince made good his power , in boëtius his sense , potentia n●n est nisi ad bonum . and that the greatest monarch in the world is not great in his actions of lawless cruelty , and rigorous severity , but in his virtuous , kind , and conscionable expressions of the power god has given him , which he so far benefits himself and others by , as he makes them good and happy , by his example and exercise of it : nor needs such a prince to be limited by law to do , who voluntarily limits himself by that law which he allows in his government , as the common direction and rule to all pe●sons ; and to the observation of which , he holds himself obliged in justice and prudence . and hence is it , that all the happiness that lawless and injurious power promises it self , is but in parisiensis his words , somnialis faelicitas , the power of fancy and opinion ; 't is no real power , because it is power which leads to misery ; since by the love of it as irregular , a man is made more and more unable to good , assuescency in evil making it natural to him , and impossible for him , without extraordinary power from god to be recovered from it . and hereupon it is , that all the mis-employments of god's favours to men ; ( and such they are , when by them disservice is done to the giver , and as far as in the receiver is , a real design against him managed ) are not onely sins in god's account , but real weaknesses in their own nature , because arrived to be what they are by the inactivity of the true presence and power of virtue in them . for as that of the school man is true , that all virtues in glory will be in act : so is it in a sense true here , that all power of virtue will be active in a virtuous mind , while virtuous it is , and deserves the glory of being , and being accounted such ; and where the contrary is , there how great soever the ex●ern power is , there the actions will declare no power but weakness , because separate from virtue , and disposed to a contradiction thereto . nam sancti spiritus jam confirmati in gloria , qui peccare nequeunt , potentiores nobis sunt qui ad omne facinus liberis gaudemus habenis . this is brought in to prove the argument , that the least power to do good , is greater then the greatest to do evil ; because power exercised in well doing , a●●s properly according to the institution of power , which is to a virtuous activity : but power expended upon evil , is not power but weakness . the privation of power , which ●he chancellour makes good , from comparing the glorious angels with us men , which sin by reason of the converse we have with , and the addiction in us to irregularity , and a latitude of choice and love ( which the glorious angels confirmed against and undesirous of , being in plenary glory and under no carency or desire of what they have not ) are said to be and that most truely potentiores nobis . this clause then is thus to be considered . . the subjects of it are spirits and holy spirits , dignified from their state-glory , from their stability in that state , confirmed , from their purity and impeccancy as a fruit of their confirmation , peccare nequeunt , from their endowment or priviledge thence resulting ; because they cannot sin , therefore they are more happy and valuable then we who can do nothing but sin , potentiores n●bis sunt , qui ad omne facinus liberis gaudemus habenis . sancti spiritus . ] these are the angels not excluding the spirits of just men made perfect , for they are both admitted to one and the same glory ; these are the peers of the upper house of glory , who continually behold the face of god and are ministring spirits for the good of god's elect ; these in their nature state and condition are abyssalis latitudinis & profunditatis , as parisiensis his words are , and therefore i shall not engage in those inquiries which the scholes have curiously about them , which some of them do aggravate almost to a blasphemy . that which is pertinent here is to to consider them as the glorious instances of divine goodness and power , that though they are creatures , and as spirits laps●ble , as appeared by the fall of some of them , lucifer and his apostate confederates ; yet those that stand are to be admired for the illumination of their intellects , the purgation of them from corruption , the perfection of them in their state , by the help of all which they are made fit for the service of god , for the performance of his commands , and for the expression of benevolence and charity to the militant heirs of glory , according to that sevenfold good office which parisiensis sayes the angels and saints in glory do to us here . spirits then they are by nature , holy by donation and charter of royal endowment , which our text calls confirmatio in gloria ; glory as that is a state of perfection and incarency , visio maris , the fruition of what ever the heigth , breadth , leng●h and depth of mercy has to give , yet is it advanced by the impossibility of abbreviation , decay or dissolution of it . and this depends upon the security the saints and angels have for their indetermination , which is in the word ●●●firmati , whereby they have not onely all joyes for the kind but the ultimityes and quintessentialities of them according to the true and furthest notion of glory ; not barely passed , as i may so say , the soveraigns grant , but ratified irreversably , god has set to the seal of his truth , invariable , inviolate , that the glory they have , they shall hold so long as he himself lasts , and this is that act of goodnesse and power which the sovereign and bishop of all creatures both in heaven and earth , has fixed on his vessels of glory for their seal of certitude and continuation , which they cannot either by their own defect , lose , or their desertion of their state deserve to have taken from them , since not onely ex adjutori● sibi co-assistente but ex dono inherente , they cannot sin peccato commissionis aut ●missionis , as the scholes speak , but they being once confirmed in glory are for ever tenable of it and in no sort separable from it ; their confirmation being not viae sed patriae , not in order to completion but the very completion , of their glory in the present possession of it : and because of this saith be●zonius is it , that the saints and angels are set out in their state of stability by a pillar in scripture , revel . iii. . to him that overcometh will i make a pillar in the h●use of my god. and hence bonaventure pleases himself and me much in advancing glory by these three steps of meditation . . cogitatio veritatis , the soul shall not onely not harbour errour but meditate on truth the subject of all its delight . . inhaesio bonitatis , there shall be in the glorified saint an universality of goodness , which shall so overshadow it and adhere to it , that it shall not be separable from it , for god who is all good shall be the object of its love and admiration . . perfectio comprehensionis , it shall fully comprehend what god is , and what the glory in which it is , is . and all this by its confirmation in glory , which considered , the chancellour's consequence is most direct , peccare ●equeunt ; sin is the desertion of god and adhesion to his creature , a lapse from his constitution into somewhat of contrariety to him ; but this the saints and angels being pass'd possibility of , because they are in glory where no temptation to sin , no nature serviceable to sin is , they are well said , non posse peccare ; not as creatures , for so they are peccable : but as confirm'd against degeneration and lapse ; from whence , as god's powerful indulgence to them , arises their impossibility to sin , as also their prepotency to us : for in that they are sinless , their created power is in its pristine vigour and oriency , immaculate without spot , regular without any inordinateness , plenary without any abatement ; so that as they have glorious states , so proportionable natures , delights , activities , and operations , and transcend us as well in what they can do , as in what they are . for where as we men can do nothing , but by assistance of things , without our selves , and to such proportions as are suitable to finite beings , and under such restraints as may interpose , and if they do , will defeat us . the glorious angels , as spirits of power , activity , and purity of essence , can from the energy of their essence , as it is indulged by god , and priviledged to purposes of ministration to his glory , and his saints good , effect stupendious things , and by hidden and secret methods , which the wit and enquiry of man by not discerning is so far from ability to prevent , that he cannot penetrate the intent and purpose of them , till they discover themselves in their effects . hereupon our lord jesus is set forth in the old testament , under the name of the angel , exod. . . and much of the expressions of divine power over the world , either for tuition or destruction , is from god manifested by angels : as his angels are ministring spirits , and gather his elect from the four corners of the earth ; so are they the dissipaters and ruiners of all pernicious persons and practices , which are antipodique to god , and enervative of his glories progress and augmentation . 't was an angel that d●● stroyed sodom and gomorrah . 't was an angel that destroyed senacherib.'s ho● in on enight ; 't was an angel that comsorted iacob ; and an angel that went before israel ; and an angel that was to destroy ierusalem , samuel xxiv . . and thus they are potentiores nobis ; they are indeed more excellent then we , as they cannot sin corporally , because they are spirits , as they cannot sin voluntarily , because they are sancti spiritus , and their will is wholly conform to gods , in the purity of it , as well as in the glory they partake of by it ; and then by sin they cannot demerit of god , and so be deprived of the glory they are invested with , because they are confirmed never to be other then they are ; and because they are inflexible to sin , and defie that which we call desire and delight , being wholly taken up with the vision of god , and dis-ingaged from this world's enthusiasms , and the captivations of sense , they are well said to be potentiores nobis . indeed the power of man is little but vanity and vacuity ; as this life , the time of power , is but a span in length , so but a flower in duration ; and all the sphere wherein mortal power acts , is but this vain and vild world , and no further is it capable of regency , then by , and under god , and according to the commissions of his permission . and when in the exercise of it we cons●der it , there is more cause to weep then rejoyce , that so fair a beauty should be courtezan'd to pleasure sin , and by it to work iniquity with greediness , which is that the chancellour means by liberis gaudere habenis , a phrase purposely used , to express the licentiality and excess of mens use of power . adam used the power of his free-will , to disobey god in eating the fruit he was forbidden ; and cain , the natural power of an advantage credulously given him to murther abel ; noah had a power of sense , and he abused it by the intoxicating delight of the grape ; david had a masculineness , which he deturpated , by impregnating vriah's bathsheba ; herod had a power of tongue , even to the stupefaction of his auditors , and he listned too much to vain-glory , and thereby abused his power ; nimrod had a power in his arm , and art of cajouling men into his politique net , but he abused it by cruelty . these , and thousand of examples of the incircumscription of power , and the vanity of its excess and eccentricity , every story , every age , every man almost confirms : and all this proceeds from this of our text , liberis gaudere habenis . we would all be originals and independent , loath we are to be under the yoak of restraint , though it be lined with the velvet and shag of ease and innocence . we would phaetonize , till we hurried god out of the throne of rule , and brought heaven and earth into a gallemaufre ; and this comes from our pride and presumption : our tongues are our own , they said it , who told no truth with them ; and to bind the hands of men to the peace , makes them stark mad of revenge . the sturdy stallion does not more ●re● when he is curb'd up , nor more riot , to the danger of his rider , when let loose , and the rein given him : then men do rise in spirit till they have power , and rage with madness when they have it . therefore the chancellour understanding habena , as servius does , pro potestate & facultate , intends , that men by being glad of a free raign , hold themselves priviledg'd and at liberty to do what they list , which the scripture calls , to work iniquity with greediness , and to do what is right in their own eyes , which is impotency in the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and non ultrality of it . for then all fear of god and man being rejected , the brutality of sense evicting the ingenuity and soveraignty of reason , man becomes beneath the beast that perisheth ; that like as that fornax & caminus charitatis , as parisiensis phrases it , that love of good men to god , swallows and drowns all self : so that nothing is now competitor with it , but it acts in ultimo fortitudinis . so in the errour and misplace of love on our selves and on the practices we are in our opinion aggrandiz'd by ; the swallow and gulph of the whole man is to gratisie his sensual project and libidinous apprehension ; and this is libere gaudere habenis . solum igitur mihi jam superest à te sciscitandum , si lex angliae ad cujus disciplinatum me provocas , bona & efficax est ad regimen regni illius ; ut lex civilis , qua sacrum regulatur imperium , sufficiens arbitratur , ad or bis regimen universi . si m● in hoc demonstrationibus congruis indubium reddideris , ad studium legis illius i●i●● me c●nferam , nec te postulationibus m●is s●per his , am●lius fatigabo . this conclusion of the chapter presents the prince both rational and tractable ; and in the one an acknowledger of the chancellour's learned assistance : so in the other an expecter of his further satisfaction , in what he yet rests uninformed in : having therefore from the prealleadged arguments found relief , he subjoyns an insinuation o● a restant scruple , which his oracular head is to salve , solum igitur mihi superest . this solum igitur mihi jam superest ] tells us the prince's ingenuity , that though he was of perspicacious wit , and knew all that his years and education could advantage him to ; yet he is free and noble to confess , that something is wanting , which he requests his chancellor to supply to him . for notwithstanding it cannot be denied , but that god does give often those that are born to greatness , wits and minds suitable thereto , and paramounting the ordinary indulgency to other men , as far as their hopes and fortunes are beyond them , as salmuth makes good in many notable examples : yet are the highest accomplishments in them but rude and dangerous , if not polish'd , prun'd , and regulated by grave and virtuous tuition : nor is all the knowledge youth has , any true ornament , if it reduce not the mind under the empire of virtue , and settle it not on the appetition of useful knowledg ; for as the body may be without delicate food , and thrive well , yet will have no grand strength without bread , which is the staff of life : so the mind may be variously adorned with studds , and embroideries of art ; and yet being void of true applicative wisdom , need its habeas corpus to remove it from imprisonment of errour and ignorance , to have benefit of the solum superest , that necessary , proper , and prudent knowledge , which it is losingly wanting in . and this is that , which because the prince is in his own opinion without , he endeavors from his learned chancellor to be supplyed with , à ●e sciscitandi● . a te sciscitandum ] the supplement of this knowledge he 'l have , à digno , not from any that obtrudes himself upon him , nor from any that on other accounts come not before welcome to him ; but à te scisvitandum , as the properest and pregnant'st resolve● of them , and one who having faithfully attended the misfortunes of my father and my self , and throughly digested the providences of god , the provisions of the law , and the intrigo's of government , art able to reconcile my prejudice to their prescript , and settle my wavering by their stability . from thee , o good man , and grave chancellour . do i alone desire direction and resolution of my doubtings . this is the sense of à te scis●● tandum ; which being the voice of a great mind , lessons us to conclude the fixation of brave and princely spirits , who as they never settle but upon premeditation , so alter and remove not their favours , but upon great and apparent provocation ; and that not onely for fear of the detection of their secrets , which being under the covert of their confidents , may by the spleen and choler of their discontents , take air and be vented to their principals dishonour ; but also because levity and futility thence chargeable on greatness , indisposes it for the future , to be relyed on by those ministers of state , who are unquestionably necessary to carry on publique and soveraign designs ; which the prince considering and judging , to avoid the suspition of such princeless versatility , points to our chancellour as the very very person of whom he onely would enquire , and from whom alone expect an account of what he was in suspence and doub● of . this for what in the clause is presational , the singularity of the thing , and the person whom he singles out to be enquired of in those words , solum igitur mihi jam superest à te sis●itandum . now for the matter and substance of the quaere , that 's lex angliae , no trite or vulgar subject , but a princely and noble one ; a law , the fruit of justice collected from the divine and natural law , and digested into useful forms and methods , fit for this nation , the queen of islands , and the lustre of europe , lex angliae . ] then , why this law is so searched into , that 's by reason of the chancellour's solicitation of the prince to love , embrace , and study it , [ ad cu●us disciplinatum me invitas , ] saith he ; since sir chancellour , your gravity directs me to it , as the subject of my minds love and engagement ; that mind of mine requires me rationally to search , whether the choice be worthy it , before i own my self a disciple to , and put my self under the discipline of it . for as i would not refuse your provocation with rudeness , so neither would i embrace it without satisfaction , that fit it is i should . this makes me enquire for satisfaction , that having found it , i may submit my self to the learning of it . then thirdly , what of the law of england it is , that the prince would know , that 's contain'd in those words , bona & efficax est ad regimen regni illius , a shrewd question worthy the prince to ask , and the chancellour to answer . for england being a kingdom of consequence , and governed by a law , 't is fit it should be a good law , respectu justitiae , and an effectual law ; respectu prudentiae , every way commensurate to the superstructure that should be laid upon the foundation of law. for bona here is not onely taken for propitia , as servius takes it ; adsit laetitiae bacchus dator & bona juno ; but pro existimata & virtute praedita , and efficax is that which ad aliquid agendam maximè conducit , efficax adversus serpentes , efficacissima auxilia , used by pliny , tully , and others , to express energie and fitness , throughly to perform any thing . by which two words as referring to the law , the prince intends the interrogation of his chancellour , whether the law was such for the justice and wisdom of it , as would answer the end of government over the people , and make the people happy and contented with it : whether the concerns of the crown and subject in peace and war , in civil and ecclesiastical matters , was duly provided for by it : this is the sum of bona & efficax , that not onely the plaister should be broad enough for the sore , but the matter of it be well composed , to the end of its application , to asswage tumours , and congregation of ill humours , and to keep the parts of the politique body hail and thriving . for as undoubtedly , that is the best diet that enables the body to be vigorous , and keeps the colour from decaying ; so is that the best law that is proper to keep government in a prudent medioc●ty , because it takes away all the occasions of misunderstanding and disaffection . and this the prince would know , whether the common-law does or no ; why ? because he is now in debate , whether law to adhere to and study , and resolved he is to choose the best , that is the most proper and suitable to the people of england : that ever being the best law to rule by , that is most adapted to the nature of the subjects it is to rule : which because the law of england is to the people of england , is to be therefore allowed the best law for england : so the law thinks , and has published of it self , and its testimony all wise men are to believe and take , according to the maxime of law , n●minem oportet legibus lapientiorem . the like may be said of the roman civil law ; which i account with that very learned civilian and prudent gentleman , lex legum , above all humane laws whatsoever . ( for the sacred empire , allowing it the particular salvo's from the common rule of it , which all nations allow with the use of it , ) it being not onely for the most part the law of it , but that which is suitable in its capacity and concern , to the vast requiries of the empire and continent ; and that by the justice and wisdom whereof , no doubt but great expa●ation and lustre has been given to it . for since the roman civil laws were the quintessences of the greek laws , and improvements of those of the twelve tables , which a learned man says thus of , let men rave and rage as they list , the book of the laws of the twelve tables , are in my opinion not onely as the fountain laws , and heads of inchoat order , to be preferred before all the libraries of philosophers ; but also for the weight of authority , and abundance of profit , to the wisdom of life that thence resulteth . and daily supplies have been made to them as emergencies require , and the prudence of experience has solicited , and accordingly has effected . even our chancellour , though he were by profession a common-lawyer , and by choice a champion of it against the introduction of the civil-law , in competition with , ( or what he thought rather ) in subversion of the municipe law ; which time beyond record , and success beyond parallel , has radicated here ; yet is even in this designed remora to that projection , a confessour by the mouth of the prince , that the civil-law ( with the reserves of particular customs , which in every countrey is used , besides the texts of the law , ) is the law that governs the roman empire , and is sufficient to distribute justice by it to the continent . so true is that of patricius senensis , ex ill is namque dignitas omnis expetitur , &c. for from them every dignity is derived , since all industry and honest labour is by rewards , splendour , and glory herein encouraged , and all the vices and frauds of men punished with fines , disgraces , bonds , stripes , banishments ; yea , even death . thus he . and this does not onely merit for it the honour of good words , from men of learning civility and gratitude , who must and euer will ( passions and private concerns laid aside ) express it to her , as the mistriss and magazine of learning , wisdom , and order , suitable to the universal nations she is oracular in , and accordingly furnished for ; but also apologize for , and obtain from this nation of england , a high respect to her learned ●ons the civilians , whom i shall delight to see encouraged according to their merits , and that modesty , which their prudence will dispose them ( i know ) to express to the muni●ipe laws of this nation , which in the allowance of the civil law , in the cases usual and as wonted before the late distractions , will so i trust satisfie the professours of that law , that as thereby they shall see a fair field for their display , & a plenteous harvest for their encouragement , so they will in no sort hold themselves neglected . and this will ( i think ) content the wise men on both sides ; the learned civilians being restored to what they were forcibly put from , and the learned common-lawyers confirmed in the enjoyment of what they now and ever had . for that both laws are necessary in their respective allowed ●pheres and proportions here in england , no man of learning can deny , no more can any man of worth deny to the civilians of this nation the praise of their great learning , and deservedly to be encouraged usefulness . which considered , the prince here is personated as resolving a conformity to his chancellours prescript , which he judges will be closely rational , such as shall satisfie his perspicacity and princely judgment , and take him off from all uncertainty and doubt of distraction . this he intends by ( si me in hoc demonstrationibus congruis indubium reddideris . ) and to this he assu es an hoped for reward , in a resignation of his princely self to that study , which has the most of rational swasion , and ought most to lead him ; and this he tells the chancellour he will ( ilico ) instantly do , all delays and further debates laid aside , and all further troubles by his enquiry and irresolution being abandoned . chap. xv. cancellarius . memoriae tuae princeps optime commendasti , quae huc usque suggessi , quare & quae jam interrogas , meritus es ut pandam . here the chancellour gives the prince the just acknowledgment of his pupillike ingenuity : to remember what youth is told , and to observe the precepts of communicated wisdom , is a virtue amiable in all ; but in princes prodigiously commendable and obliging . and this the chancellour finding the prince profitably to do ; not onely by the commemoration of it , encourages the prince : but by the civility and good consequence of it whets himself to add all the helpes his experience and love can to his improvement , not thinking any thing too much to bestow upon a just valuer and a gratefull acknowledger . for since the high conceits of men of dinon tarentinus his minde , carryes them to ascribe more to their single selves , then to all o● her besides them . and they cry out , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that their opinion is more weighty then thousands of other mens ; and with francis the first king of france , make nothing of their words but content themselves with ie suis roy , let charles the fifth say what he can of a violated promise ; the gentlenesse and gratitude of those that are more modest and memorative of their duty , carrying them to the virtue of acknowledgment to those they are obliged to ; cannot but be kindly expounded a merit , as the oblivion of it would be branded , a disobligement . and therefore the prince so frankly reciting the chancellour's impartment , is well said to by our chancellour , meritus es ut pandam . scire te igitur volo , quòd omniae jura humana , aut sunt lex naturae , consuctudines , vel statuta , quae & constitutiones appellantur . here the text describes the kinds of humane lawes to be three , such as are effects of god's implantation on all men and things . this law of nature is the law of all places , all persons , all times , altering not , but is one and the same inscription of god's power and goodnesse , wherein he makes manifest , himself to be the fountain of being and to preserve his creatures in the law and rule of it . this law i have in some kinde treated on in the notes on the first chapter ; that which i shall here add is but onely to shew the obligation of it . for though moses the most ancient of writers and law-givers doth not write of it , yet undoubtedly it was the directory of man-kind and nature in all the forms of creatures long time before him , and was contained in the seven precepts of the sons of noah ; and the learned say , god commanded the israelites to kill all those they overcame in battail , that were ignorant of them . this tully suffragates to ; for having said much of the obligation and extent of it , he concludes , cui qui non parebit , ipse se fugiet , &c. to which law whoever obeys not , avoids himself and becomes not man , but as a runaway from his station deserves utmost punishment . hence is it that all lawes of men are deduced from this , and so far onely are just , as they are conform to this , and in what they contradict it , are no lawes of justice ; and hence as the law of nature is the law of god , so an obligation lyes on the creature to observe it . concerning these lawes of nature , our most learned late deceased country-man mr. selden has most incomparably treated ; so has * gratian ; and carraria who sayes , iuris naturae violator est , qui legem justum non observat ; the summe of all , grave hopper expresses pithily , prima vera lex ab uno deo , à quo deinde ad mundum profluit , & post deinceps ad hominem , ubi lex humana à lege divina & naturali deducta ; and this suffices for the first sort of humane lawes , those of nature , catholique for both time and persons . the next are consuetudines , these have been ( saith doctor and student ) of old time used throughout all the realm , which have been accepted and approved by our soveraign lord the king and his progenitors and all his subjects , because the said customs be neither against the lawes of god , nor the law of reason , and have been alwayes taken to be good and necessary for the common-wealth of all the realm . hence these are ( secondly and in a kinde ) soveraign lawes ; for they do rule men and things : consuetudo praescripta & legitima vincit legem , saith the rule of law ; and not onely in the lawes common , customs are the lawes of places and things , as in mannors and tenures , in which there is no law without them , lyes ; but in the civil lawes , mores recepti sunt legum nervi , and consuetudo dat iurisdictionem , etiamsi agatur de causis meri imperii , and consuetudo observata legis instar est ; in antiquitatis causa , & praescriptiones , longúsque usus & consuctudo considerantur : these and such like rules are in the civil-law , texts : yea tertullian averrs the prevalence of custom , making it a law upon rational and religious grounds , which saint augustin confirms in his epistle to ianuarius ; of which i shall have occasion to write in its due place . all that i shall add is , that custom so prevalent , ought to be reasonable or else it cannot be good , the rule of law being , consuctudo contra rationem potiùs usurpatio quam consuctudo appellari deb●t . let this be enough here for the second kind of humane lawes , customs . the last is constitutiones , the same in the civil law that acts of parliament under the name of chartae regis , h. . ordinationes e. . & e. . e. . e. . e. . articuli , e. . e. . these under what titles they of old variously went , yet being made in parliament according to the constitution of our government , are that which is here called constitutions , because being made by the king , not as in france , where tholossanus sayes , princeps noster monarcha solus , ●●lius addictus principis vel legum imperio , iura subditis , & magistratus ipsos praeseribit , jurisdictionisque cujusque modum ex sententia distribuit ; but with the assent of the lords and commons , they are to be obeyed as wise and worthy acts of government : for in that the king corroborated with the counsell of so many brave lords spirituall and lay , and commoners as a parliament of england affords , makes lawes , they must needs being so pondered upon and passed , carry the presumption of convenient and suitable to the nature of affairs . and tholossanus so far approves of this , that like a wise man as he was , he , after he has discoursed of the french kings absoluteness in making lawes , concludes , meliùs tamen non diffiteor rempublicam se habituram , &c. i do not doubt to say , 't would be better for the common-wealth , if our most christian king would take the counsell of his senate in making lawes , by which means they would be more mature and advised , then by the counsell of few they can be hoped to be , for men of parts and loyalty to the stability of his throne , would sooner quit their places and preferments under him , then sin against god and him by counsells of flattery . thus he . sed consuetudines , & legis naturae sententiae , post quam in scripturam redactae & sufficienti auctoritate principis promulgatae fuerint ac custodiri jub●antur , in constitutionum five statutorum naturam mutantur . here our text-master shews how the ternary of laws pre-mentioned , become regularly and effectually statutes , which all persons are to take notice of , as that which has an obligation on them , & they are to express a duty to : for though customs do bind , & the laws of nature do bind men , in foro dei , and in foro civilitatis & decoris , as they evidence men intelligent of their duty , and obsequious to that which has upon so just grounds a regency over them ; yet they seem not in the sense of our chancellour ( as i concceive ) in foro poena externae , and by an intitling of the civil magistrate to punish the non-observance of them , become obliging , till they are transfer'd into a positive law. for as where there is no law , there is no transgression ; so where the transgression is not breach of a publish'd law , there ought to be no punishment ; for punishment is the effect of a sin committed , and by a known law violated , the magistrate provoked and despised ; which in this case not always being , since there are many offences against these laws , which men may not know . our text says , that whatever the offence of not observing customs , and the laws of nature , be in themselves ; yet as humane laws , they are not in magistratique construction , till magistratically they be made such ; and that they can onely be made , by being form'd into the method of statutes , and passed as such by the royal assent , which chiefly gives the life and noble energy to them . and this the chancellour sets down pithily and orderly ; they must be in scripturam redactae , that they may be not onely durable , but also certain , and entred on the parliament re● ; for the law being the extract of justice , leaves nothing to discretion and uncertainty , because it knows danger and inconvenience may come in at that door ; but as it requires that laws be had in honour when made , so does it deserve such honour from men , by being no snare , but a security to them , leaving nothing arbitrary , or under the exposition of any man's will or pleasure , but as declaring the penalty , so appointing of old , before printing came in dace , and men might have the laws of them printed ) that they should be proclaimed by the sheriff in his county , and the acts were often enrolled in other the king's courts , that the judges might take knowledge of them , accordingly to administer justice to the people : all which argue the care of the law. ● or when laws are once , in scripturam redactae , then they are by the rule of reason , and by the judges men of reason and conscience , to be interpreted ; and this is no small priviledge that laws which reach all men , are reduced to writing , that all may read and consider them , and plead them for their defence and indempnity . and surely the writing of laws the holy ghost mentions as a blessing in this regard , when he commanded moses to write the law , and the kings of israel to write the law ; yea , when god wrote the law ( which omnipotently and primarily he had written on the tables of man's heart ) in tables of stone , to be a monument of the perpetuity of its obligation , and the inexcusibleness of his breach , who knowing the will of god , and law of his duty , yet does it not , but is rebellious against it ; he exemplified to man the greatness of the blessing , to have not onely a law , according to which he was to live , but a law written ; the sanction and imperation of which he might certainly know , by having it penned under his eye , and within the reach and capacity of his reason . and therefore , though as i have before noted , laws there were probably before moses ; yet none of those laws ' were published in the form of them to the people , that were to live by , and be judged according to law by way of writing . from the mouths of the dictators of them , did nations of old receive their laws . in allusion whereunto 't is said in scripture , that the priests lips shall preserve knowledge , and the law be enquired at his mouth . from moses his lenity and tenderness onely , was the first reduction of laws to writing . and being so , they must further before they can be laws , be sufficienti authoritate principis promulgata . for as no laws can be such in the sacredness of them without authority , so no authority can make them laws , but that which is sufficient to that end ; and because none is so sufficient to that end but that of the prince , the text says , sufficienti authoritate principis promulgatae ; for legislation being the act of majesty , excludes all exercise of it besides , or without it , and so not onely says the civil laws , as tholossanus quotes authorities for it ; but also the common and statute laws , as i have abundantly heretofore proved : contrary to which there is no one good authority rightly understood in all the law-books that i have met with ; yea , because the first statute of e. . was made without the king's consent , the statute of the same year did repeal it , and the title of it says , the last mentioned statute was repealed , because it was made without the kings consent . for though subjects in parliament may prepare and humbly offer to the king their requests , and assent as much as in them lies to the passing of laws ; yet he gives by his pleasure of passing them , the quickning word to them ; and therefore they are said to be a sufficienti authoritate principis promulgatae . ac custodiri jubeantur , in constitutionum sive statutorum naturam mutantur , & deinde panalius quam antea sub ditos principis ad earum custodiam constringunt , severitate mandati illius . this our chancellour adds , to shew that laws ( like physick ) must have some potent ingredient , to carry them to a right working on the part affected ; and this he calls , fear and dread of displeased greatness ; and the consequence of it , fine , imprisonment , and as the cause may be , death : for as god himself is not known , but by the judgments he executeth ; nor feared , but for the command he hath over the bodies and goods of men , which he can blast and ruine in a moment , and for the hell that he has in the other life , to cast the body and soul of implacable and impenitent men into : so kings are not observed in the laws of their declared authority , further then they do iubere custodiri leges , and that paenalius quam antea subditos constringunt . for in england i suppose every law , either common or statute , has a certain duty and penalty , and as the duty is rewarded with the favour of protection , for so signifies the words of king ed. . in the stat. . regni stat. . where speaking of the laws and customs of the realm of england , and his prerogatives and rights royal , he adds , we considering how that by the bond of our oath , we be tyed to the observance and defence of such laws , customs , rights and prerogatives : ) so is the violation of it with the proper penalties , therein expressed , accustomed to follow such transgressions , and no other , the law of engl. leaving little to discretion or pleasure , especially in the penalty of statutes , wherein nothing being expressed penal , the subject that will be refractory thinks himself more safe . for the laws of england , by the kings in their parliaments made , were ever intended to be mercifully medicinal , physick of evacuation , not excoriation . hence tart laws have been observed ever short-liv'd , as was that of boiling men to death for treason , h. . c. . which was repealed by ● e . c. . ( which statute of repeal says , nothing being more godly , more sure , more to be wished and desired betwixt a prince the supreme head and ruler , and the subjects whose governour and head he is , then on the prince's part great clemen●y and indulgency , and rather too much forgiveness and remission of his royal power and just punishment , then exact severity and iustice to be shewed ; and on the subjects behalf , that they should obey rather for love , and for the necessity and love of a king and prince , then for fear of his straight and severe lawes . every good and loyal subject will hold himself obliged to conform to his prince's pleasure in things not mala per se , and not fear a penalty more rather then love a duty ; but where the contrary is , princes are furnished with power to order contumacy , and their proclamations commanding the observance of lawes , are very strong to not onely invite good , but terrifieevil subjects to conformity ; and this the forementioned statute also hints in these words , yet such times at some time come in the common-wealth , that it is necessary and expedient for the representing of the insolency and unrulyness of men , and for these foreseeing and providing of remedies against rebellion , insurrection , and such mischiefs , that sharper lawes as a harder bridle should be made to stay those men and facts , that might else be occasion , cause , and authours of further inconvenience , ) so he : and that of e. . c. , & . which was repealed by e. . c. . the very next year ; these and others might be instanced in , which confirm what is the all , i conceive , our text intends in these words . it followes . qualis est legum civilium pars non modica , quae à romanorum principibus in magnis voluminibus redigitur , & corum auctoritate observari mandatur . vnde legis civilis , út caetera imperatorum statuta , jam pars illa nomen sortita est . this is made good from the digest , which is authenticated in all parts of it by the emperours , who set it out as the body of lawes civil ; and in that vlpian is quoted , thus saying , quodcunque igitur imperator per epistolam & subseristionem statuit , &c. whatsoever the emperour by his letter or subscription appoints , or knowing decrees , or advisedly and thronally utters , or commands by his proclamation , that ought to be a law. that these constitutions of the emperours of rome in their successive ages , and the sayings of famous lawyers book'd into the bodies of civil lawes , make up as really the civil lawes as the original lawes do , is as plain to all knowing men , as that the statutes are part of the lawes of england , and so ought to be accounted , as well as the customs and records of courts , and the entryes of law-judgements in the year-books . for since all lawes are gradually made , being by one and the same power , they are owned with equall reverence as well the later as the elder ; yea , modestinus considering that all law is either such as consent made , or necessity introduced , or custom has settled , sayes plainly , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. later constitutions are more prevalent then former . si igitur in his tribus quasi omnis iuris fontibus , legis angliae praestantiam probaverim praefulgere , legem illam bonam esse & efficacem ad regni illius regimen etiam comprobavi . deinde si eam ad ejusdem regni utilitatem , ut leges civiles ad imperii bonum , accommodatam esse lucidè ostenderim , nedum tunc legem illam praestantem , sed & ut leges civiles electam ( ùt tu optas ) etiam patifeci . this is the method which the chancellour proposes to the prince's solution , he being in suspense ; whether of the lawes he should study , as in the fore-mentioned part of the comment on this chapter i have further signified . and the chancellour being , as an english-man , zealous for the law of his freedom ; and as a master in that science , concerned to promote the honour of his study and delight , finding of●xeter's ●xeter's daughter , the rack ; brought into the tower iohn holland then newly created duke of exeter , being made constable of it , and intending it as a preface to that law which allowes the use of it , which the common law does not . i say , the chancellour advertised of this , applyes himself to the prince to prevent any rivall law ; shewing , that not onely the rachel of england was beautifull and well-shaped , but fruitfull of all that amounts to order and ornament ; and that as the civil lawes are very fit for the empire , and every way correspondent to the magnitude of that vast and gyant-like body ; so are the lawes common and munic●pe such , as set out livelyly and preserve healthfully the beauteous and lovely constitution of this british empire : which though the truth of it be evicted by the judgement of the law in all ages , and the experience of the order and renown of the nation by reason of it , the violation whereof , in the lawes undervaluation , has ever been the nations hatred and vehement prosecution ; yet the good chancellour not contented to pack upon the prince heaps of presidents and infinities of quotations , ( which are most historique , that such the temper of the nation has been , then rational that so it judiciously ought to have been ) here proceeds to satisfie him argumentatively ; that there is no favour shewed therein to the lawes , but that which her deserts have made the subjects her debto●s by , and that the sun is no more usefull in the firmament for the invigoration of vegetables , then the commonlaw , as it was in his time used , is for the well-being of this nation to which it is every way helpfull , both as food , exercise , and physick . and so concludes the fiteenth chapter . chap. xvi . leges angliae in his quae ipsae sanciunt legis naturae ratione , non meliores pejoresve sunt in iudiciis suis , quam in consimilibus sunt omnes leges caeterarum nationum , &c. this whole chapter is but a transition to what he had preasserted as his proof in behalf of the english lawes , as flowing from that trinal fountain of law , nature , customs , constitutions , the first whereof being the law of nature , and the same with all lawes , he passes over without any stay upon it , as conceiving no necessity to inforce that by argument , which already is in grant ; and so do i , after the example of my text-master , pass over it with a testimony of sir cook 's pertinent hereto . our common lawes ( saith he ) are properly and aptly called the lawes of england , because they are appropriated to this kingdom of england ; as most apt and fit for the government thereof , and have no dependence upon any forein law whatsoever , no , not on the civil or canon law , other then in cases allowed by the lawes of england ; and therefore the poët spake truely hereof , et penitùs toto divisos orbe br●tannos : so , as the law of england is proprium quarto to the kingdom of england , therefore forein presidents are not to be objected against us , because we are not subjects to forein lawes , thus that sage : and with his justification of our lawes as good and effectual to the government of england , i end my notes on this chapter . chap. xvii , regnum angliae primo per britones inhabitatum est . here our chancellour enters on the second head of his argument on behalf of the laws of england , customes , and those he not onely proves to be most antient , but used and accepted as good by five several nations , all which ruled successively in britain . the first whereof were the britons , a people whose name and origin many have diversly descanted upon . mr. gambden knows not what to say , but concludes , that in these cases 't is an easier matter to impeach the false , then to teach and maintain a truth . many count them aborigines : mr. cambden thinks gomers posterity to be the cimbri which might come to this island , as the uttermost quarters of the world ; gomer signifying utmost bordering . but this , as all other such like opinion , i take with respect to his great name , to be but conjecture . time having lost us so irrecovably in the dark of its not to be regained discovery , that to be positive in any thing is not onely fond , but a phansiful madness . that britains were very antient inhabitants here , and primo , as our text has it , that we can read of , stories confirm , and that their druids and priests were the great men of learning and law , is also known of old . of these many authours are quoted by the learned forecited authour , which i will not enlarge upon : these britains were also the same with the gauls of old , and had one language and custome , which the w●lch , the remaining britains , hold to this day , as they do their christianity ; for to their eternal honour 't is recorded , that from the time of their first conversion , which is said to be years ago , in anno . after christ , they never after wholly defected from christianity , but as they held their little spot of land , ( if their own authours do not deceive me ) from brute to cadwalladar , which they compute about years under kings ; so do they continue also very resolute in retention of their language and customs . and as british language they at this day speak ; so do they please to be called by the name of britains , which name of old was the general name of the people of all these islands , wherein as the king of it was ●●iled , insularum britannicarum monarcha , and did in right of his imperial crown , quatuor maria sibi vendicare : so the laws of it were called the british laws . but about the year . the angles , a people of germany came upon us ; and about anno . egbert being crowned king of all britain at winchester , made an edict , that all saxons should be called english-men , and britain , england ; and dicet confirms it , that about the year . that those that were heretofore called kings of the west-saxons , were for the future to be called kings of english-men . so famous ever since has england been accounted of , that not onely pope gregory call'd its monarchs , domini liberorum , lords of free subjects ; but the kingdom it self , regnum dei , the kingdom of god. but concerning england's kingdom , i have in part written heretofore , and shall hereafter in another place : therefore that which i shall add , shall be an accusation of my own nation , as at this day , so of old , as ingrate to god for his mercies ; not onely in a good land every way a canaan of plenty , and to all intents of peace and war accommodated ; but in the discovery of his glorious gospel to us , in the power & purity of it , though the fruits whereof is little seen in our lives for as it was in the days of old , they were eating and drinking , and taking and giving in marriage till the flood came , and swept those secure merry mad-men away ; and as before the norman conquest , there was a man of god ( they are iernalensis his words ) fore-told that god would send a scourge on the english for their beastly and cruel vices ; not onely murther and treason , but drunkenness , and despight of the house and service of god ; but also for their antique fashions , which shewed the instabil● of their minds . i say as these omens were then on the nation ; so truly 't is to be feared , that some heavy misery impends us , who have not learned obedience by the things that we have suffered , who abound in secret hatred , each to other ; who are proud beyond our fortunes , prodigal above our proportions sloathful beneath ingenuity , envious to great merits , censurers of grave manners , contemners of native customs , affectors of vicious pleasures , intollerably peevish , mercylessly savage , brutshly voluptuous , zealously prophane , and frigidly religious , amongst whom , the son of man when he comes on the earth , will not finde so much faith as a grain of mustard seed in bulk , nor as a bubble of air in solidity , all complement , all boast , no truth in word or deed . sed auferat oblivio , avertat deus malum omen , let peace and truth , o lord , be in our hezechiah's dayes ; for he hath by his proclamations forbidden p. ophanenels : and whatever befall us , let us say , the lord is just , and we have reaped but the fruit of our own deservings . for never was there a nation more beloved of god , and saved from the hands of our enemyes then we have been ; and never was there more turning of the grace of god into wantonness , then has been amongst us , who yet do not know the things that belong to our peace . deinde per romanos regulatum . this is added not onely to shew the succession of conquests , but the accidentall benefit of them ; for the romans being a people of universall empire and civility with their power , brought learning and manners hither , which is part of the notion of regulatum . under whom the romans came ( for without a head and order they did nothing ) is evident in story ; suctonis tells us iulius caesar did visit britain to their cost , the pearles , as some say here , indrawing him hither , and the money here given him appeasing him , and keeping natives in the possession of their estates and lawes : augustus would no voyage to britain , thinking the empire would be neglected at home , when it had such affairs to do afar off ; but clauàtus was of another opinion , and therefore be sent plautius hither , who did many great matters tending to the romans advantage ; which domitian seconding , setled to the romans a great part of this land , placing garrisons in the most proper and tenable places , and by them awing the subdued natives : adrian built a wall to keep the roman conquest from inroads , so did severus and m. antoninus make high walls , and wayes , together with other laborious monuments of order , not purposing ever that the roman power should ravall off in britain . but as low and victored as the natives seem to be , their stomachs were not lessened , nor did they so much submit to , as repine under the insolence of their roman rifllers ; as design made them watchfull , so resolution bold , to take the first occasion they saw to their own restitution , and the interition of their usurpers : in severus his time , they flew into arms and so incensed him , that he ordered execution of the britains they took rebells ; but death determined his tragick edict , and his successors vice made the hopes of a better time more probable and neer . in this juncture constantine , a britain by the mother , becomes emperour ; then britain had ease , but his reign expiring , with valentinian his successour new troubles arose ; till the natives , resolving the last and most desperate thoughts in theodosius his time , acted them and were emancipated by them ; which though then they little knew how to manage moderately , yet happened to be the abolition of the roman power after a . years continuance in a great and heavy measure here . yet as bad as the romans were , they never afflicted the nation like the northern cormorants , which followed them , nam finis unius mali , gradus est futuri . so it follows . iterumque per britones & saxones . the romans being disseised of the most of their power here , the britons think themselves in a good degree possible to become free ; but alas , the romans strongly planted and garrisoned , having wives , children , and improvements in the nation , would not easily quit them , nor be driven out from them : yea , so did they adhere to their acquisitions , that for fourty years after the resurrection of the natives , these domineer'd , and held their own making excursions and inroads ; yea , endangering a rally again of their dispersion , and that to the britains re-eclipse if not extirpation . in this straight , the natives call in auxiliaries , and those the saxons , a poor , hardy and pyratique people , who were modest at first , and came in such numbers onely , as the natives suspected not , but after drew by degrees more and more out of their country , till at last they tyrannized ten thousand times worse then the romans did ; the particular whereof , and the misery of the nation under it , our cambden has most fully set forth . these subdued the britains and made themselves lords of this land ; the angles , a people between iuit-land and holsatia joining with them , and being powerfull amongst them , by reason of which the nation was termed england , quasi angles-land ; according to which venerable bede stiles his saxon history , historia gentis anglorum : during all whose times , in a heptarchy of government , which lasted for a long time , there was nothing but civil war and blood-shed ; till egbert , king of the west-saxons , prevailed over the other kings of the saxons , and so had for a time the whole government to himself . but not long was it before the danes , who many years by pyracy had infested the coast , now enter the last by force of arms. so it follows . et tunc per danos idem regnum parumper dominatum est , & iterum per saxones . this is the fourth variation of the lords of this nation , as it was conquered by the dane a pitifull deboist nation , bordering upon the baltique-sea , wholly living on pyracy , and by reason of lust and promiscuous use of women , multiplyed so numerously , that their own country not being able to contain them , they were forced to seek abroad for habitations where they could finde them out , and force themselves into them . hither they came , and here they made such hurly burlyes , that it surpasses the penalmost of all historians to aptly express them ; so that one that considers them well , would conclude them to have been of the race of those devils , that entred into the saxon swine , and run headlong into the sea , and were overwhelmed and drowned in lubricity and effeminateness : alfred and his son overcame them , and restored the nation to a fifty years freedom from their tyranny ; till sweno the dane , taking advantage of ethelred's softness and invigilancy , entred england with a mighty army , and over threw the english , but they re-enforcing their right , carryed it and lodged happily in edward the confessor , who was the son of ethelred by his second wife : thus was the crown again in the saxon race , till the confessor dyed issueless , which being by the wise disposition of god , made way for the norman conquest , which was the last and durable one . as it follows in our text. sed finaliter per normannos , quorum propago , regnum illud obtinet in presenti . this was a conquest with a witness , not onely of plenary prevalence , but also of duration and successional continuance ; for it was not over a part , the rest unsubacted , nor yet for the life of the conquerour , or the same and terrour of him continued in his son , or to the proportion of that vision , which is reported to be seen by the conquerour , telling him , that his posterity should enjoy his obtainments years but it was such a thorow one , that it rooted out all the english nobility and gentry ; yea it carryed all so torrent-like before it into the black sea of dismallness , that all kind and shew of justice , was for a time perverted . concerning therefore this , as amply and ingeniously discoursed upon , i referr the reader to that particular discourse , which mr. cambden has written of it , whereby it appears that the saxon empire , which had continued about years , determined ; which though some take upon them to say , was for a iudgement of god on the base avarice of the magistrates , and superstitions lazyness of the prelates , as mr. cambden's words are ; yet was not onely for the past and then present sin of the whole people : but to induce the purpose of god in the after felicity of our nation , which we have long enjoyed , upon the account of what follows in the text. quorum propago , regnum illud huc usque obtinet . this our chancellour annexes , to shew the secret pleasure of god ; who though he be altogether goodness , yet for a punishment of nations sins , suffers evils to come on them ; and when his glory is thereby righted , converts the ill designs of men to the good of those , to whom the actors therein least intended it . the norman conqueror he came into england fiercely , and changed the british government , and in a great measure their laws , extruded the english out of their possessions , and placed normans in them yet in few years his successours restored much again , the english revived , and his successours , saith king iames , have with great happiness enjoyed the crown to this day . so that quorum relates not to the britains , romans , saxons , or danes , but to the normans onely , because their issue onely had the crown , and so were the quorum propago within the words . quorum propago ] not quorum filii , or successores : but propago a word adapted to the intent of continuance , dicta quod porro pangatur , id est , longè figatur ; and the chancellour intends the conquerour to be a vine , which planted in this fruitful soil , would shoot out many branches of regality to not onely an illustrious , but a durable purpose ; and as they should influence ( regnum illud ) this english kingdom ; so should they do it huc usque , not onely historique , from the first prevailing to the time of the text , but prophetical , of a longer continuance , even to the times , when time shall be no more : which later huc usque reaches onely to in the exposition of good-will , the text chiefly limited the huc usque to its own time , which was about years thus calculated ; william the conquerour came in about the year . from thence to henry the sixth coming to the crown , which was in anno . in the succession of kings , there was years ; and if we add thereto years at least , that he raigned , before perhaps our text was published , it makes the huc usque to be years , which was a long time . for thus it pleased god to fortunate not onely the first attempt , but to continue the majesty and memory of it , even to so many successions , notwithstanding the sundry intercurring varieties . so true is that of the wiseman , no man knows good or evil by what he sees under the sun. for though hannibal lost the day , and was overthrown at home by a roman , a young man inferiour to him in reputation , experience , and forces ; and that when he and his affairs were most important , and he endeavoured most to shew himself a carthaginian veterane : yet charles the eighth of france , though a young man , destitute of money and counsel , came to invade naples , strongly guarded , and amply furnished , yet obtained all his desires with ease , and became master of them , which made pope alexander say , the french-men came as harbingers into italy with chalk in their hands , to make and take up their lodgings where they listed , not having occasion so much as to put on their armour in all their voyage . so true is that of the wiseman , the lot is cast into the lap , but the disposition thereof is of the lord. et in omnibus nationum harum & regum eorum temporibus , regnum illud eisdem , quibus jam regitur , consuetudinibus continuè regulatum est . here our chancellour uses a pleonasm ; and to shew his love to the law , and his constancy in asserting the credit of it , tells us , that whatever the alterations of the masters of it kings , and their people of several nations , were , yet the customs of england stood firm under them ; by reason where of those words , consuetudines , and continuè regulatum est , are to be qualifiedly understood . for if consuetudines be taken complexly , either for the laws , or for all those usages that were topique , then undoubtedly there will not be ( as i humbly conceive ) a precise historique truth in consuetudines , no more then in continuè regulatum . for as the learned selden observes on these words , the saxons made a mixture of the british customs with their own ; the danes with the old british , the saxon and their own , and the normans the like , the old laws of the saxons mention the danish law ( danelage ) the mercian law ( mercenlage ) and the west-saxon law ( west-saxonlage ) of which also some countreys were governed by one , some by another . yea , the common-law , which is the general custome of the nation , when it is attributed to saint edward as the compiler of it , yet is so to be understood , as hy his command it was framed out of the three pre-mentioned laws . so says brompton positively ; furthermore , when the romans had their colonies here , they govern'd them by the civil laws , as well as they governed other parts by british laws , dispensed by romans , and when the normans prevailed ; though the conquerour is said to call anglos nobiles , sapientes , & in sua lege eruditos , &c. the noble , wise , and learned english lawyers , that of them he might have an account of the laws and customs of england , according to which there were chosen twelve men out of every county , who were sworn before the conquerour , that to the best of their power , they should justly and indifferently make known the truth of their respective lawes and customs , passing by none of them , neither adding to or diminishing from any of them ; i say though this was done , yet who knowsnot for all this , he chopped and changed them as he pleased ; such as served his turn , he confirmed others he rejected : and though he retained the figure and mould of the nation , rapes , wapentaks , hundreds , countyes , with the little jurisdictions and mannors in them , also the councils , wittenagemots , shiremotes , wardmotes , though mostly under norman names ; yet did he either put normans into place and possession of them , or else made such additions to or subtractions from them , as conquerours use to do , whose will is the law : nor can it be expected it should be otherwise , so long as god has appointed time to ebb and flow with uncertain vicissitudes , to bring in and carry off the temporary inhabitants of the world , and with them their language and manners ; which is the reason , that at this day language is so confused and mingled ; as that nothing of the primaeve idiom almost subsists , and nations , yea even our nation has been so party per pale , as that the people of i● have been at one time one , and another time another ; when the romans were in power , they were roman in lawes and manners ; ( yea , though they did at first romanam linguam abnuere , could not endure the roman speech ) yet by the roman's civility of nature and conversation , they did not onely romanam eloquentiam concupiscere , but grew to be romanly vain and vicious , not only in habits , but in perfumes and bathings , in lawlessness of àyet and luxury of entertainments , which even the meaner sort of men called civility and kindness of hospitality , when 't was part of their slavery . so tacitus : to which gildas assents , when he sayes , england was called by the prevalence of the roman power , and customs in it , non britannia , sed romania , which prevalence was not onely over the lawes and language , but religion also , which the romans changed by abolishing the druids , whose nesarious carriages suetonius tell-us , the romans would not endure ; though i know , they long after were here : yet , as mr. selden sayes , not as the potent inspirers of the nation , but as students of mysteries ; to which , am. marcellinus gives authority . the like also was the issue of the prevalencies of the saxon , danes , and normans , to which as conquerours , the same methods are ascribable ; it being the inseparable companion of conquest to be altered in language and in lawes , if not wholly , which seldom is : yet in a good measure which never is otherwise . and therefore though it may be true , that the conquerour did confirm the good lawes of the confessor ; because they were just and honest , and extracted out of the very bowels of natural justice , prae cateris patriae legibus , before any other lawes , because he thought it hard to judge by lawes he know not , those of the confessor probably being onely the written ones ; yet did he also allow , out of a private respect to the ingloriousness of his birth , the norwey lawes , they allowing the base son of any king of that kingdom , equal priviledge , though he be born of a bond-mother , with the son and heir born in lawfull wedlock and of a free woman ; and that being his case , he did the honour to those lawes to introduce them , though as to that end they never had any credit here ; all which premises considered , the text's universality of language in the behalf of the law , is ( as i said before ) to be understood with limitation ; for neither were all the customs or lawes of england by them reatined , nor were they constantly used to govern by them : but every one of them as they saw most advantageous to them , took and left the british lawes and customs or some of them , and in so doing were but wise in their generation , and both served themselves of , and secure themselves by , the providences god gave them auxiliarly to them , which if they had not done , ( justice and honesty thereby being promoted ) they had done weakly and ( as their omission might have been causal of blood and cruelty ) wickedly . quae si optimae non extitissent , aliqui regum illorum justitiae , ratione vel affecti●ne concitati , eas mutâssent vel omnino delevissent . this , flowing from the precedent clause , will also be dubious , as it historically was : for though our text-master , and sir ed cook after him , make this an argument for the paramountship of the common-law ; yet as it here stands , it makes little for it , since that which is urged for the stability of it under all powers , is rather a flower and fruit of the chancellour's love , then that which i can warrant from history . for although i cannot say any of the kings here mentioned , britains , romans , saxons , danes , did change the laws universally ; or that those parts that they changed , were by them so changed upon reason of justice ( which is a rare jewel in a conquering ear , and not often the companion of prosperity ; especially in assaults and successes of foraigners , whose access being onely to gain their success , is mainly seen in luxury and voluptuousness , associated with cruelty and oppression ) yet that some of them were changed by the affection of the changers to their own stability , better forwarded by foraign laws then these , is as true even as gospel : yea , and that those changers were over-ruled by god for the natives betterance , is also most plain . for since we cannot but believe , that the prudence of all governments tended to honour and order , which were probablest soonest arrived at , and sadliest maintained in , by the reason and justice of laws , made up of the quintessences of all collections and bodies of laws . it is most likely , that the laws in use amongst our ancestours , which are in the fore-mentioned sense to be understood , were the laws which for the most part and longest time were the laws here under all governments . for though saint edward's laws , which were but the laws of edgar revised , were here ; and the conquerour set ( as i wrote before ) a seeming value on them , and braved as if he should have them the standing rule : yet when he found they would not fit norman interests , he either so wholly suppressed , or else so gelded them , that norman they seemed rather to be , then british , or english ; and divers norman customs were in p●actice first mix'd with them , and to these times continue ; as succeeding ages , so new nations ( coming in by a conquest , although mix'd with a title , as that of a norman conq●erour is to be affirmed ) bring always some alteration . by this well considered , that of the laws of this realm being never changed , will be better understood : thus mr. selden . et maximè romani , qui legibus suis quasi totum orbis reliquum judicabant . this note on the romans chiefly is , not from any secret antipathy they had to the british laws , quâ such ; but refers to the method that scientifically they as the best bred and politiquest nation under heaven , exerted themselves and their dexterity by . livy terms them a nation , natam instauraudis reparandisque bellis , and being such in a height beyond others , 't is likely they would introduce all the instances of conquest for their own aggrandization , and the suppression of all hopes of reverter to the conquered ; which conquerors cannot more signally do , then by change of laws and language : both which were done , and from the romans possibly is it , that our old laws , and records of courts yet are in latine ; as from the normans , that our pleadings and books of law were , and are yet in french. the romans then , who first by the law of the twelve tables , made the civil laws , and by their emperours added daily to them , as they expatiated their empire , cannot be thought to give way , when conquerours , to our brittish laws ; so as to cause the civil law to cease exercise here , because it was their own law ; and therefore did they carry on their martial and civil government every where , as well as in the mother city by it . this must be granted , though it somewhat impair the drift of our text , because amicus socrates , amicus plato , sed magis amica veritas . and therefore mr. selden yields it ; and the sense of the text-master here is onely to be understood with ingenuous allowance . neque verò tantorum temporum curriculis leges civiles in quantum romanorum inveteratae sunt neque venetorum leges , quae super alias antiquitate divulgantur , &c. as the former , so this is a kind of seraphique instance and argument , not exactly accountable to the plain tenour of history . for though our chancellour were a most honest and exact man , well versed in all learning ; yet dare i not assert , or make a defensive comment on this his chapter barely upon his authority . and though sir edw. cook is , and shall be much my oracle in other matters ; yet in asserting the common-laws antiquity from brute , and i know not what antique ancestry , for which he says he has onely our chancellour , whom he rightly terms of profound know edge in the laws , and an excellent antiquary : yet in this i shall not ( under favour ) subscribe to him , bec●use not onely 't is impossible almost if not altogether , to find truth at that distance ; but because the consequence of that uncertainty , will be certain blemish to mine own judgment , and import a kind of arrogant vapour over that which my duty and ingenuity rather bows down to and venerates , then in any thought or word will or dare disesteem ; nor is there any fruit from such vain and profitless digladiation , as the heightning of one , and depreciating the other law , occasions ; but the forfeiture of the adventurers credits , and the display of their cholerick passions let these heats then die with hottoman , and cook the first and fierce combatants . comparisons between the laws are as odious now to revive , as are the precedencies and antiquities of the two universities ; which though some think they do well vindictively to renew , is no true part of gallantry . for my part i do own equal honour to , and so i hope do all cambridge men to oxford , as to my mother university ; and i would have all oxfords worthy sons so to profess and evidence to cambridge my mother , and that considering them as the two onely nurses of good learning in this realm . they are the words of the and . ●hil . and mary , c. . and as these are the common breasts that nourish the men of both laws ; so would i have the nutriment they there-from receive , evidence it self in all the fruits of common kindness , which their growth gives them opportunity to shew each to other : to promote which , as i a person equally obliged to the merits of the professours of both laws ; and in neither my self a professour , shall christianly pray for their accord ; so shall i in this discourse willingly write nothing that may ●ffend either , or both of them , but keep my pen steddy , as near as i can , to truth , and to that sober peremptoriness in it , which becomes humility , and the consciousness i have of mine own weakness : which digression i think hither to necessary ; yet not further to be prosecuted : i return therefore to the text , declining all comparisons between the two laws , and resting in the grave judgment of king iames , concerning both their use , here . for a king of england to despise the common-law , it is to neglect his own crown ; and i think if the civil-law should be taken away , it would make an entry to barbarism in this kingdo● , and would blemish the honour of england . and after the king enlarges , my meaning therefore is not to prefer the civil-law before the common-law , but onely that it should not be extinguish'd , and yet so bounded , i mean to such courts and causes , as have been in antient use ; as the ecclesiastical courts , courts of admiralty , court of requests , and such like , reserving ever to the common-law , to medd●e with the fundamental laws of this kingdom , either concerning the king's prerogative , or the possessions of sub●ects , or any questions either between the king , and any of them , or amongst themselves , in the points of meum and tuum : so that king. from all which i conclude , that though it cannot , nor shall not need to be averred , that the common-laws and customs of england , have been the onely laws and methods of government , which all the several lords of this nation , have constantly and precisely kept themselves to ( the romans using the civil-laws here above years , and the saxons , danes , and normans , abolishing and introducing what of their countrey laws they pleased ) yet may it very confidently be said , that the common-laws and usages of england , have not onely been very antient before the ●onquest , and very much approved by the several lords of this land ; but are such for the nature of them , that there is no humane law within the circuit of the whole world by infinite degrees , so apt and profitable , for the honourable , peaceable , and prosperous government of this kingdom , as these antient and excellent laws of england be . and hereupon , since the kings and parliaments of england from the conquest , have given reverence to the common-laws , and by their additions of statutes strengthned and beautified it , making the wilful and obstinate violation and subversion of it , not onely penal pecuniarily and by imprisonment , but also as the case may be , capitally . it doth ( i say ) from hence appear , that the wisdom of the kings and parliaments of england , and of the reverend iudges , who according to their declared judgments have judged , did concur in judgment with them , and with our chancellour here , when he calls them bonae & òptimae anglorum consuetudines . and so i conclude the notes on this chapter , being in no sort desirous to enter upon com●arisons between the laws : but as i said before , to acquiesce in the pre-mentioned modest explication of the text , and to avoid all dictatorian confidence , which in no sort becomes any man , leas● of all my self , who do write , non ut instruam eruditos , sed ut excitem paratos . and who , if i offend in any thing , shall not be ashamed , but be most ready to acknowledge it , crave pardon for it ; and in the next edition , if god shall let me live to it , and it be worthy of it , make amends for it . this be enough for the notes on this chapter . chap. xviii . statuta tunc anglorum bona sunt necne , solum restat explorandum . non enim emanant illa à principis solum voluntate ut leges in regnis quae tantum regaliter gubernantur , ubi quandoque statuta ita constituentis procurant commodum singulare , quod in ejus subditorum ipsa redundant dispendium & jacturam . quandoque etiam inadvertentia principum hujusmodi , & sibi consulentium inertia , ipsa tam inconsulte eduntur , quod corruptelarum nomina potius quam legum , illa merentur , in this chapter the chancellour comes to the third part and proof of the goodness of the laws of england , as the statutes of them are enacted by the sageness , wisdom , and justice of the government of england ; and to make his foundation more solid , he first proposes what the statutes in their origin are not , and then proceeds to shew what in their rise , progress , and nature they are ; by both which he aims to make the nation of england more splendid , then rome ever was : for though it had many temples to fortune , yet to wisdom , temperance , justice , or any of the virtues , it had none : whereas england in the wisdom , temperance , and justice of her laws , devotes magnificent piles of praise and power to her princes , whose attendance , with their prelates , peers , and commoners , as assenters to their piety and paternity therein , raise an immortal pyramid of regular liberty , just subjection , and symmetrious order . to the explication whereof , our chancellour advances , . negativè , that they do not emanare à principis solum voluntate . in which words , the chancellour implies , that statutes do emanare à principis voluntate , for he is the fountain of statutes ; and as water flows from the fountain , ex impetu naturae , so statutes flow from the satisfied judgment , and prudent omniscience of the king , ex impetu gratiae & regalis providentiae : nor can there , or ever has there been any law made , but by the king willing thereto , which we usually call his passing the bills , or giving his royal assent . whence is the life of the law ; yea , and the duration of it too . for since princes may exceed in wisdom , as much as in place and power they do any of their subjects , no man can seek to limit and confine his king in reason , who hath not a secret aim to share with him , or usurp upon him in power and dominion . thus said the good king when he was hardly pressed . the chancellour then in this clause , acknowledging the prince to have a freedom and power of reason to consent , or dissent : as he advises him not to deny laws that are pro bono publico , for the joynt good of king and people ; so advises the people to be quieted with such an answer , as the will and reason of their superiour thinks fit to give . and in thus doing , the laws that are statuted , will emanare à voluntate principis , which saves the king's honour and right , giving unto caesar that which is caesars , and unto the power of god in him that which is god's , reverence and obedience . whereas then our text says , non enim emanant i●a à principis solum voluntate ; as it does not suppose the lords and commons excluded assent , so not the king denied his royal assent , and consent ; but shews that ( as before i have said ) the king is pleased to have , and have the laws to be remembred to be such , that the endearment of f●ther and child , husband and wife , being insinuated in them , there may reciprocations of love and duty be enterchanged between them ; the king's will may be the law , because the law is the king's will , and the peoples rogation be his concession , because they ask nothing amiss , nor would have it , but with submission to their princes freedom ; remembring that at best they sit in parliament as my subjects ( said the king ) not my superiours ; called to be my councellours , not dictators ; their summons extends to recommend their advice , not to command my duty . thus wisely he . vt leges in regnis quae tantum regaliter gubernantur . this is added , to shew the priviledge that kings and people have , and the obl●gation they owe to god , and their ancestry : kings and people thereupon ; because by it as kings are delivered from the temptations of lawless will , concerning which , king david cryed out to god , who doth know his own errours , keep me from presumptuous sins . so are people kept ( unless they will be mad to p●ovoke god , and mischief themselves ) from all temptation to disobedience : ( no subject of england being possible , under the legal government of his prince , to become a traytor , but by the instigation of the devil , and premeditated malice . ) i confess , in the most absolu●e governments , when such as augustus and theodosius are in power , who were by their natural piety so restrained , that they did not onely not put men to death for their pleasure sake , but cry out , vtinam mortuis vitam dare possumus , when they do use their power , as ●extilia the mother of vitellius is said to use her interest in her sons power , onely to gain her love while she lives , and tears when she dies . when i say such as these spirits are in rule , there is no fear of truculent laws and administrations , be the absoluteness of what they may do what it will , they will do but what is fit and gentle ; but when the licentiality of the will is in full carear , when they may make what they will , law ; then there is danger of what follows that , statuta ita constituentis procurant commodum singulare , quod in ejus subditorum ipsa redundant dispendium & jacturam . for therefore is ( onquest endeavoured , and absolute dominion arrogated , because there is in the obtairers of them an aim to confound and lodge all their subjects have in their own despotiqueness ; the severity and partiality of which endeavour , contrary to the laws of nat●re , and the rules of equity , is that which the chancellour calls here singulare conemodum in subditorum dispendium & jacturam ; which our good monarchs hating to once look towards , or be in any degree deservedly suspected for , thereupon are justly accou●ted fathers to their subjects , as well as friends to their own peace both of mind and state , i will onely here add the words of one of our chroniclers ; divers other conquists , saith he , also have been pretended by sundry princes f●thence the conquest , onely to the end that all pristinate laws , and tenures of possession might cease , and they make a new disposition of all things at their own pleasure ; as one by king ed. the third , but it took none effect ; another by hen. the fourth , who nevertheless was at the last , though hardly , drawn from the challenge by william thorington , then chief-iustice of england : the third by hen. the seventh , who had some better shew of right , but yet without effect . and the last of all by queen mary , as some of the papists gave out ; and also would have had her to have obtained ; but god also staid their malices , and her challenge . thus that authour . by which appears , that though some of our princes have been solicited possibly by ill-disposed favourites , or mistake of the laws matchlesness , to all intents of governing this nation : yet none of them have been resolute , in following such dangerous solicitations and prejudices ; but having looked upon their duties to god , themselves , and their subjects , avoided those rocks of danger , which by embracing them they had fell upon . for the oracle of kingship said it , everlastingly to be in the memory and mouthes of his successours , kings : if the divinest liberty be to will what men should , and do what they so will , according to reason , laws , and religion ; i envy not my subjects that liberty , which is all i desire to enjoy my self : so far am i from the desire of oppressing theirs ; nor were those lords and gentlemen which assisted me , so prodigal of their liberties , as with their lives and fortunes , to help on the enslaving of themselves and their posterities . thus he . which amply sets forth the truth of our chancellours character of conquerours , who do aim in their absoluteness to effect dispendium & jactaram , the not onely immoderate and unadvised loss of their subjects , but even to cast them and theirs over-board , in the storm of their passions , to an irrecoverable subversion ; or at least do , by making laws in a huff and heighth of humour , without and against counsel of any but themselves ; which our text calls , principum inadvertentia , and sibi consulentium inertia ] and make laws , which in regard of the novity and incongruity of them , to the reason of government , and justice of law , deserve rather to be blushed at , then promulged ; which is also the sense of corruptelarum nomina potius quam legum illa merentur . 't would be infinite to particularize the instances of those stories bound with them : but this shall suffice for our chancellour's sense , what statutes are not : come we to discuss his positive assertion what they are , and how they come to be what they are , in the following words . sed non sic angliae statuta oriripossunt , dam ●cdum principis voluntate , sed & totius regni assensu ipsa conduntur . herein our text obstetricates to the statute-laws , and shews them to have a celebrious origin , oriri est nasci vel surgere , saith festus ; and therefore , as pliny says , oritur fons in monte ; and virgil , monstrum mirabile oritur , and tully oritur ab his sermo ; and nothing is more frequent then dies eriens , lux oriens , stella oriens , and the like : so is it a propriety of speech that our chancellour uses , when he says statuta oriri , intimating , that they rise up from the people , and being exhaled thence by the influence of the king , who is the sun in the firmament of rule , do , from his consent to , and approbation of them , appear orient and replete with vigour and authority ; and this concurrence makes the legal , as well as rational harmony in laws passed , according to the english constitution : the contrary to which , ( onely practised in heat and hast , but repented of at leisure ) makes work for the emendation of them by calmer tempers . for god has so joyned king and people in their concurrence to the passing of laws , that where any seemingly publique act is otherwise then more majorum passed ; there it not onely wants its weight and esteem , but is also soon recalled and accused to boot , of defectuousness . for there are three that bear record to the legality of passing acts of parliament in england , the lords spiritual , lay , and commons ; and these three are one in assent under one head , where the life of all the excellency of power resides , and that 's the king ; whom god long defend , the defender of the faith and the laws . quo populi laesuram ipsa efficere nequeunt , vel non eorum commodum procurare . prudentia & sapientia , necessario ipsa esse referta putandum est , dum non unius aut centum solum consultorum virorum prudentia , sed plusquam trecentorum elector●m hominum , quali numero clim senatus romanorum regebatur , ipsa edita sunt , &c. this clause enter ; us upon the very weighty consideration of statutes , as they are passed by the wisdom and council of the nation . and the word quo , relating to the assent of the whole realm , that is , king , peers , & people , makes the consequent words true , that they cannot be reasonably presumed to be grievous to either , but advantageous to all ; since all have made them what they are , and what without them jointly , they could not have been . and this the chancellour mentions , not more to bedignifie the parliaments , that are consistent of so many , and so rarely accomplish'd members , then to illustrate the augustness of the crown , to which all these are sworn , whose lieges these are , and to whose soveraignty they do not onely bend the knee , but the heart , and ought to venture all they have and are for it ; and so declared the parliament of the e. . that they could not assent to any thing in parliament , that tended to the disherison of the king and his crown whereunto they were sworn . yea , when the nation owned his holiness of rome , ( as they then called the bishop of rome ) for their sacred spiritual father ; yet even then did the lords and commons in parliament , by consent of the king , declare a denial of what the pope demanded , because it tended to the detriment of the crown and dignity of the king , and to the liberty of the people . which wisdom and zeal of parliaments , is by our text-master therefore said to amount to a cannot of injury to the people , and to a can and will of their emolument . and hence has it ever been , that the opinion amongst us holds good , that nul chese dishonourable , &c. no mean thought is to be had of parliaments . for of it is that famous rule uttered , si antiquitatem spectes , est vetustissima , &c. if you regard the antiquity of parliaments , 't is most aged ; if the dignity , 't is most honourable ; if the iurisdiction , 't is most capacious . for there is no cause so abstruse , but it can dive into ; so litigious , but it can period and judge ; so important , but it can state and regulate . and hence is it , that parliaments consisting of the king , and his subjects environing him , are by the chancellour said to do such notable beneficencies to this nation , because they are not onely many , above thrice as many as romulus instituted ; his number being but , which after , in the declensions of the honour of the senate , was multiplyed into a thousand . so that the historian says , the senate so over-grown in number , and so mean in accomplishments , needed an augustus to restore it by a moderate number to its wonted veneration ; and so augustus did reduce them to . which sir ed. cook computes our parliaments , not much to exceed calculating them thus : of the lords spiritual . of the lords temporal , about . of the commons , . . and made the members of the roman senate to be men of worth and worship , worthy the trust they judicially had , and were expected judiciously to discharge : which as for the number , so for the nature of the persons , members of it , our laws do follow this roman president ; for though cyclopique times may , to make up a faction , as heliogabulus did , admit any person that was but a consider , though he were of no fortune , saith , blood , nor , of orderly principles : yet as by the decrees of that wise state , no man was to be a senator , but a rare person , wise , noble , and able to live to the heighth of the state of it : so in our parliaments , there are statutes of regulation to election of persons , both in counties , cities , and boroughs : no yeoman be he never so wealthy , is capable to fit in parliament . by the h. . c. . he must be some knight or esquire , resident , dwelling , and abiding in the shire , and cities , and boroughs : so h. . c. . the reason whereof is , for that it was presumed , that men of blood , fortune , and breeding , will have more knowledge in , conscience to , and honour by , which they will faithfully do their duty , and hold themselves concern'd therein , by the great pledges they have at stake ; and will be most probable to secure by good laws , the publique interest , then those that have none of those obligations and ties . and this the chancellour specially points out in those words , prudentia & sapientia ipsa esse referta , because as multitudes of councellors promise safety ; so chiefly when those many are of such as are spiritual lords , men of all arts and hours , lords of the laity , who are versed in secular affairs , and accomplish'd with travails , and knights and esquires out of the best gentile families of england . all these , together with the most intelligent and wealthy men of trade , sent to parliament from cities and corporations , and in parliament consulting , may well be presumed to pass acts , sapientia & prudentia consulta ; especially when consideration is had , that these gentlemen and others , ought to be plenae aetatis : no young men , whom pleasures or vanities will avocate , whom passions and emulations do incline from the via lactea of counsel ; but grave , staid , and well-advised sad men , virorum consultorum prudentia , says our text , where prudentia virorum bene consultorum , is opposed to levity and versatility , prudence being that pondus that settles the mind in all worthy persistencies , against that rashness which precipitates all good intendments . thus lupercinus in marcellinus is said , properation : tumultnaria coactis militibus temere magis , quam consulte progressus ; and the same authour writing of men of approved worth , calls them consulto consilio cognitos ; and trebellius pollio puts consulto for consilio ; for in any great affair the heathens had their consulta numinum : and therefore members of councils , whatever they want ( as no men have all blessings aboard their vessels ) they should not want counsel , for that is of the very essence of their trust : which because sometimes men chosen to parliaments have wanted ; or if they have not , have wanted courage and integrity to shew themselves ; acts of parliament have sometimes passed , which have not been as wise e. . says he intended his regni● ● . to be , al honcur de dieu , & des seinct esglise , & au profit de n●stre realm : which sir edw. cook says , is , or should be the true end of all parliaments . and by how much short of this end parliaments fall , by so much are they less then they truly ought to be : to prevent which miscarriage which tends in dispendium & jacturam subditorum , it is good that the rocks and shelves , upon which of old shipwracks of parliament-honour have been made be modestly remembred . for as the note of a wise father is , that in five cases parliaments succeed not well : so is it observable , that in sundry cases the statutes of parliaments succeed not long in credit or duration , as when they are effects of meer power and advantage , separate from legal reason and justice . by the k. c. . and . no person was to attempt revocation of any ordinance made in that parliament ; but that clause was repealed , h. . c. . as against the iurisdiction and power of a parliament , the liberty of the subject , and unreasonable . by the r. . c. . the power of a parliament is committed to a few . by the h. . c. . this is declared against the dignity of a parliament . so by r. . c. . no man against whom iudgment or forfeiture was given , should sue for pardon or grace . this was repealed by the h. . and judged unreasonable , and without example , and against the law and custom of parliament . thus were many acts passed in henry the ths time , which were hard ; as that c. . c. . which acts , together with o●hers of like nature , were repealed by the e. . c. . and also when they are hudled up in hast , without due rumination of what they intend a remedy of , and rightly penning the acts to that purpose . for laws are like all things that have not due concoction and proper maturation , indurable , and not beauteous in their figure and acceptation . which evil to avoid , it was wont to be the wisdom of our fathers , to premeditate acts before they were preferred , scan them well when they were preferred , and pass them onely for a candidateship , to see how they will approve themselves in experience ; yea , and to be sure to make them as short , and as little dure as might be : & when in these things failer has been , the acts made were either inconvenient , or but short-liv'd ; witness the act h. . c. . which is called by a man that knew what he said , a most unjust and strange act ; and therefore was repealed h. . c. . which that brave chief-justice said , he recited and shewed the just inconveniences thereof , to the end , that the like should never hereafter be attempted in any court of parliament . and therefore if statutes be made according to our chancellour's legal standard , they must answer precisely their prescript , and not want their plenary counsel , as did that parliament h. . held before the duke of bedford , guardian of england , wherein of the lords spiritual and temporal , there appeared but in all , who passed but one act of parl. & that of no great weight . but those that appear in full number be rightly poised , to perform unto king and people due benevolence , that is , to evidence conjugal designs of advantage to conjunct felicity . if the men which make the court , what it in our text is asserted to be , a seminary and repertory of wisdom in mind , and prudence of action , conform to which the expressions of them in the statutes of their enaction will be . if the members , i say , be men of honour , experience , integrity , fortune , ¶ and do propose no private emolument , but as they are freely chosen , and thought free from all pre-engagement of ambition , popularity , or perfidiousness , and bound in fidelity to the king , zeal to the religion , honour to the laws , reverence to parliaments , and integrity to the people ; so will they be very loath to do any thing for fear or favour , which may either prejudice their trusts , or engage their credits in after-times censure ; but having the fear of god and the king , and the love of themselves , their posterities and the people , before their eyes , will take heed of new ways , and enquire for , and keep in the old way , the good way . the declension from which has ever cost the nation dear ; and when it has been unhappily misteered that way , given the nation just cause to say to their treacherous pilots , as fulvius did to his son , whom he took in the conspiracy with catiline , non catilinae te gen●i sed reipublicae ; for sure the laws of england , and the people , intend and expect parliaments to be oracles of order , repairers of breaches , and sanctuaries to oppression ; which because they have mostly been , as institutionally they were designed ; not onely people have doted on them , but even princes , and by that occult prudence engin'd those affairs with a successful popularity , which otherwise would have stuck in the birth , and not found a safe exition from the womb of their conception and nutrition . thus adrian courted the roman senators , by being present constantly at it , and excusing to them all irregularities ; yea , complementing them so highly , that he assured and swore to them , that he would never punish an offending senator , but with their consent and approbation . and this henry the eighth did so practise , that he made them so supple to him , that what almost he pleased was a law , and so did queen elizabeth : for if the power and iurisdiction of parliament for making of laws , in proceeding by bill , is so transcendent and absolute , as it cannot be confined , either for causes or persons , within any bounds : which sir ed. cook makes good , as far as it is maintainable from many notable presidents how much are we the people of this land to pray to god for good parliaments , and to praise god when we have them ; when parliaments are not black with fury , and desire of change ; but when they are like that of e. . for the common profit of holy church , and of the realm ; and because the state of holy church hath been evil kept , and the prelates and religious persons of the land grieved many ways , and the people otherwise entreated then they ought to be , and the peaceless kept , and the laws less used , and the offenders less punished , then they ought to be , the king hath ordained and established those acts , which he intendeth to be necessary and profitable unto the whole realm . then is there cause to bless god for parliaments , wherein gracious princes make happy noble peers , prudent gentlemen , and obsequious commons , by the good statutes of religion , peace , and prudence , that emanates from them . and when ever the contrary has been , wise and pious men ought to he humble under god's corrections by them ; for it is for the sins of the nation that many are the princes of it , and that he makes oracles err : witness the parliament of r. . which though it have as glorious a prologue to its statutes as words can make , to the honour of god and holy church , and for the preservation , salvation , and surety of this realm , and good governance of his people , of the assent and accord of the prelates , dukes , earles , barons , and commons of his realm there assembled , &c. yet this whole parliament was by . h. . c. . repealed . so says sir edw. cook , a parliament holden at coventry , in h. . is wholly repealed by h. . c. . and the whole parliament of . of the same king , is said also to be repealed : but i confess , i find not these in the printed statutes . these , and the like , which may further be produced , shew us , that councils and senates of men , though never so wise , yet may at some times , and in some cases err , and ebb and flow with partialities , the avoidance whereof is a great blessing ; for when no extream frustrates counsel , and no private concern supersedes justice , then are the statutes of parliaments , constant , standing , and durable laws , establishments : as were those of the parliament of e. . whom sir william herle chief-justice , called , le pluis sage roy que unque fuit . all which considered , the chancellour did not without cause write , that statutes in england , populi laesuram efficere nequeunt ; because parliamentarily no injury can therein be done : not onely because what is therein done is juridicè factum , and so not laesura populi ( the law being the arbiter of right and wrong ) but also because the wisdom of apprehension and action is such in the severals there conjoyned , that they cannot reasonably ( unless god causes wisdom to cease from the wise ) be suspected , either to be deceived , or willingly to deceive the peoples expectation ; and so the nequeunt refers to their politique , as well as natural capacity . the like sense is to be given to non eorum commodum procurare ; which if literally understood , would be confuted in the pre-mentioned authorities . but with allowance of humane infirmities , and politique encumbrances is mostly true , as is the rest of the clause , which makes them prudentia & sapientia necessario referta : but enough of this ; they , that concerning the method , manner , and form of parliaments , and their passing acts , would know more , may turn to the authours quoted in the margent ; which amply can satisfie ( search being also made into rolls of parliament ) in what the useful curiosity of men can with advantage direct them to enquire after . i will conclude this with a rare expression of king iames , who treating of the members of parliament , says thus to those of the commons house ; what you give , saith he , you give it as well for others , as for your selves , and therefore you have the more reason to eschew both the extreams ; as the one part ye may the more easily be liberal , since it cometh not all from your selves ; and yet upon the other part , if you give more then is fit for good and loving subjects , to yield upon such necessary occasions , ye abuse the king , and hurt the people , and such a gift i will never accept ; for in such a case you might deceive a king , in giving your flattering consent to that which you might move the people generally to grudge and murmure at it , and so should the king find himself deceived in his cal●ule , and the people likewise grieved in their hearts : the love and possession of which , i protest i did , and ever will account the greatest earthly security ( next the favour of god ) to any wise and just king. et si statuta haec taenta solemnitate , & prudentia edita , ●fficaciae tantae quantae conditorum cupiebat intentio , non esse contingant , concito reformari possunt , & non sine communitatis , & procerum regni assensu , quali ipsa primitus emanârunt . this clause is as a reserve to the inefficacy and inconvenience of some statutes : for as it is in all actions , the success crowns and commends them ; so is it in legislation , that is accounted wisdom of government , and those laws most prudentially compiled , which are most generally accepted , and by reason thereof longest last in their vigour ; which because all laws are not thus befriended by god's blessing on them , and peoples resentment of them : therefore is this remedy here as the help at a dead lift , by the law of our government setled , and by the discourser upon it introduced . and the chancellour , that he may make this clause appear suitably considerable to the real nature of it , sets it forth by these gradations ; . it sets forth the equipage and concomitants of statutes , which are commenced by prudence in the intent , and associated with solemnity in the method of their procedure to accomplishment ; and is expressed in those words , tanta solennitate & prudentia edita . . it rehearses the defeat that all humane things , and so statutes are subject to ; while as they possibly may , so they as possibly may not answer their makers intent , si efficaciae tantae quantae conditorum cupiebat intentio , non esse contingant . . the remedy and cure for this anticipation , and as it may prove , state and statute-evil , concito reformari possunt . . by what means this mischief is expelled , and cure effected ; even analogous to the origin of it , una cademque manus , vulnus opemque tulit . that our text sets forth in the last words , & non sine communitatis , & procerum regni assensu , quali ipsae primitus emanârunt . si statuta haec tanta solennitate & prudentia edita . this has reference to the nature of the editors , and the court of their convention , or the mint whence they have their statute-stamp ; which being the head and vital spirits of the nation , endowed with a kind of omniscience and omnipotence , are in a legal sense understood to do all things like themselves providently and with an argo's ey'd circumspection , as not onely intending that for good , but as so ordering them by a divinely-sovereign genius inspiring them , that nothing almost shall appear enormous or improlifique in them to those ends , for which they are contrived and published . for prudence being a virtue of fore-sight , as solomon specifies it , prov. . . a prudent man fore-seeth the evil , and hideth himself , does not onely in our chancellour's sense , direct the co-operators in edition of statutes , to be so subtle , as to hide themselves from the evil of detraction , in the wisdom of their enactions , from the devices of the crafty ; as the phrase is , iob . . where 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the crafty is rendred by saint ierom , malignorum , of those that watch and look for their haltings , and would be glad to find and blaze abroad their mistakes : but it tells them also , how they shall evict their malignity , and defeat it , by a rectitude of aim both at god's glory , their own discharge , and their peoples emolument ; and this sapience therefore it called prudence , because it flows from a principle , &c imperat de ordinatis ad sapientiam , as the schools say . and hence is it , that wisdom and prudence expresses it self in a vigilancy and parateness , to not onely expect , but to provide against , and to encounter with whatever is insidiary to it ; which , so necessary to greatness in every mo●ion of it , as well as in relation to laws , seems to me some reason why tully calls it a kind of divination , the wisdom of experience leading men that are obsequious to it , to an introspection into not only the nature , but the probable , and almost infallible operation of things . by this did achitophel get the reputation to be accounted an oracle ; and the holy ghost says , so was all the counsel of achitophel both with david , and with absolom , that is , he was so ponderous and considerate , weighing every circumstance , that he hit every thing in the white which he aimed at , and pierced in●o the bowels of every thing he designed to know . this was wisdom and prudence rightly ordinated not onely solomon's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 wisdom of understanding , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 h●s superexcellent wisdom , but his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 prudence of action pro . and this wisdom ●tatute-makers abounding in , will not onely shine in the face of their laws , as the scripture says , wisdom makes a man in the face of his fame as body to do , but render them secure and serene in their consciences , whatever the sequel of things be ; for as their integrity will endure tryal , so their wisdom will fore-see and prevent what 's harmful in it . thus did publicola his eclipse , by the envy that attended his credit with the souldiery and people of rome ; for he having built a stately palace , which the romans looked upon as too august for a citizen , and thereupon had some jealousie whispered into them , as if he intended to improve his influence on them to a contentment of admiting his ( bruited to be ) affected tyranny . he , i say , fearing the city would rise upon him , nocte intempestiva , &c. one night when all the city was quiet , and not aware of it , pulled down his building to the very foundation , which when the city , in the morning , perceived , th●y both admired his prudence , and be moaned their own groundless jealousie . and thus did the great law-givers of the world not onely bring , but continue their laws in credit , by the real , or at least opinionated wisdom of their rise and design , which not being questioned , but made good by the conformity of their enactions to justice and ●quity , made them obeyed and not disputed , adhered to and not exclaimed against . which considered , our text having an eye to the wisdom , honour , power , and state of our nation , concentred in that court , wherein enactions of statutes is , tells us , that they are prudentiâ editâ , and that not onely as they respect the editors of them , who are ever constitutionally and cathedrally wise , and also mostly personally such ; but as they do evidence & exert this internal excellency in a method proper to it , expressed by tanta solennitas , which relates to the care that our great council takes , in formation of a statute , when either upon petition to , or motion in either of the houses of parl. a bill prepared is proposed to be read ; the speaker of either house signifies the nature of the bill , and it is thrice distinctly read three several days ; every member of the houses speaking upon any reading what he judges fit , for , or against it ; if when after the third reading it be carried by the major vote to be an enaction , then it passes in the respective houses , and after all comes to the king who has the creative power , and either assents to its being a a law , or denyes its passage , by all which as there is time to consider , and digest the consequence of it , so is the deliberation called by the text a solemnity , tanta solenn●tate sayes he . and that to denote the consequence of statutes which are set for the fall and rise of many ; and here upon have their solemnities in the passing of them , as all things of extraordinary nature in all times had , the iews had their solennitates , their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . exod. . their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . psal. . where the word signifies a throne wherein monarchs do use to set in robes when they pass statutes , so are the words verse the fifth . for this was a statute in israel ; and they had their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which signifies not onely solennes conventus , ierem. . . ierem. . . but also a solemnity of time in which no common work was to be done . levit. . all these kind of solemnities they had upon fundry unordinary occasions ; so had the heathens their solennia , and their festidies , which were stativae feriae , conceptivae , imperativae , & nundinae : of which lili●s gyraldus gives us an account ; so does suctonius , ammianus marcellinus , flavius vopiscus , and multitudes of o●hers ; yea , our law allows many ●●lemnities , and performs them to ¶ non-●urid qu● days , and on festivals , the judges when they sit , sit in their r●bes of state : so does , i suppose , our lord the king and his peers sit robed , when they consent to enaction of laws . thus we see the chancellor's pregnant use of tanta solennitate , as well as prudentia , and this argues the dignity of statutes . si ●fficacie tantae , quantae conditerum cupiebat intentio , non esse contingunt . this is the second gradation or rather degradation , the possibility of abatement ; for as all sublunaries known but in part by us , and in but some remote and partial degrees subject to us , are miscarriable ; so are statutes . men that are earth , and have their own foundation in the dust , cannot six pillars of perpetuity here . the world is materially mutable ; and god has made it globular , that it may be more apt to not onely motion , but monition to us , to fancy no absalom's pillar here . and if the world it self be thus , what can be better expected from the men and laws , the polities and governments in it , but that they should alter , and often do not if at all , answer their first constitution : romulus enobled rome , and made a senate in it , assistant in council to his kinglyness in succession ; but that very senate that he established to kingly honour and aid , was the bane and boutefeu of regality . iulius caesar thought himself secure in the senate , and thence he had his deaths wound , and that first from his son brutus . scipio brought the roman power triumphantly into africk ; yet was so mistaken in the romans gratitude , that he denyed them his bones when dead , who had dealt by him living , no better then they do by dead bones , which they cast out . charles the fifth of france was very wise in the greatest part of his actions ; yet he mistook policy , in passing by margaret the earl of flanders onely daughter , whom he might have had , and with her the netherlands and bu●gundy ; and in the act he made , that the kings of france ( though children ) should be crowned , and be under protectours , which became the misfortune of his own son ; and (a) aemilius says , filled france with infinite troubles . columbus that discovered the unknown part of the world , instead of being rewarded with the government of his discovery , was made nothing of by the don 's of spain . thousands of instances are producable to this purpose . the same defeats have law-makers had in laws ; people are of claudius his humour , as by vice or virtue agitated , so are they in or out of love with laws ; yea , as in some junctures reasonfull laws may hear ill , so in o●hers reasonless ones may be declared and approved good . though therefore law-makers are to wish the blessing of god , and the popular approbation of , and benevolence to their enactions ; yet are they ever as to eye , that by the justice and piety of their administrations they may deserve it ; so to comfort themselves , that if they be not valued by the obedience given to them , they have but that measure meeted to their laws , that they themselves meet to god's laws . he gives them laws and statutes that are good , and they break them , and put his law behind their backs , which they should set before their face to observe and do ; and god suffers his quarrel to be revenged by their peoples disobedience to , and non-approbation of their laws . and god that accepts their virtuous intentions , the integrity of their wills , instead of the virtue of their actions , and upon their repentance turns an eye to mercy to them , will also turn their good intentions to the people , which they desired to testifie in wholesome laws for the government of them will in due time make acceptable with the people , which ought to encourage princes to be gracious and worthy , as theodosius was ; of whom when some asked , why he did not pu● some of those that were declared enemies to him to death , replyed , would to god i could give life to those that are dead , meaning those that were dead with ingenuous grief for their rebellion and contumacy against so good a man & prince who so only used his power , as to make him beloved while living , and lamented when dead : which is the character tacitus gives of vitellius his mother sextilia , which those that follow , will be sure to be happy , whatever the success of their endeavor in government be . for to desire to rule well , and to make laws providently , for the matter , manner , and season of them , is all that princes and parliaments can be expected to propose , and as far as they may , effect : god , whose the event of them is to know and rule , can onely and alone do more , and do better then this : but under men there is one onely remedy for what is in the proof of laws amiss in them , that is , concitò reformari possunt ] statutes or common-laws are not then irremediable evils , but accidental and curable ones ; not by amputation onely , as in gangrenes , but by attenuations , as in diseases of less danger . there is a power by the law in our state-physitian , and his colledge , not onely plastique , but in a sort creative , whereby not onely form and being is given by making that law which was not law , but alteration of that from what it is , to what it better ought and may be . this reformari is that not of root and branch , but of such wens , monstrosities and excrescencies , as may be abated and taken off without danger to the peace or disfigure of the beauty of that they adhere to . thus reformatio and reformari are honest , loyal , and useful words , leading to necessary works , if they be rightly bounded . so the civilians use reformant , id est , qui formam aliam conventioni dant ; vel eandem substantiam conv●ntionis alia formâ retraectant . thus they also intend by their reformatio monasteriorum , sabrogatio in locum corum , qui eo titulo indigni sunt ; and so vectigalia sine imperatorum praecepto , neque praesidi , neque curatori , neque curiae constituere , neque praecedentia reformare , & his vel addere , vel diminuere licet . and so the best authours take reformation to be the reduction of a thing into its old or a better form . thus pliny uses it , when he calls ●he prince , he that like a good father reforms and corrects the ill manners of his children , and brings them back by the steps they have gone astray , so ¶ he terms him he admires , the very reducer and reformer of expiring and even dying art . nor does quintilian intend less , when he makes reformare to be velut recoquere . for as boyling and burnishing plate , renews it ; so doth refo●mation of laws recuperate their respect , and re-ingratiate them . thus the statute of marlbridge mentions reformation , it was provided ( saith the preamble ) agreed , and ordained , that whereas the realm of england of late had been disquieted with manifold troubles and dissentions ; for reformation whereof , statutes & laws be right necessary , &c. thus , in sense , is the meaning of the preface to the stat. west . and in other statutes , where the words redress , amendment , and the like are , which do shew that reformation is always intended for the better , though not alike in the extent of it ; for that it sometimes wholly repeals , and at o●her times but in part , as according to the wisdom of the king and his parliament seems meet ; which because it is festinum & certum remedium , the text says concitò reforma●i possunt , intimating , that these politique potters have power of the clay-laws , and can make them with their breaths vessels of honour , or of dishonour . for 't is not con●itò reformari debent , but possunt ; because there is not so much necessity of state , as conscience of duty to god and men , which makes them to do what therein they can , and with all the speed and convenience they can , in this reformation , which is to be onely by them . so is the last part of the clause , et non sine communitatus & procerum regni assensu , quali ipsa primitus emanârunt . this is the unalterable method of enacting and repealing laws by the king , as head of the three estates , the lords of the spiritualty and temporalty , with the knights , citizens , and burgesses , all assembled in the two houses of parliament . now because enaction is onely in strictness of law and policy , the act of majesty , 't is onely said here assensu communitatis & procerum regni , since to them assent and consent is ordinarily ascribed . and though the word communitas is as much as needed to be said to include a parliament , ( which is the common assent of the realm , and signifieth an act of parliament , for it cannot be per communitatem angliae , but by parliament . ) yet our text , to shew how great honour the law does the noble peerage , and he , as a worthy english man would do to that honourable order , mentions them particularly as the great props and instances of every dignified excellency . which peers are tither temporal men , who are hereditable counsellours to the high court of parliament , by the honour of their creation and lands ; or bishops , spiritual men , who are likely by the virtue of their place and dignity , counsellours , life-renters , or ad vitam , of this court. concerning these , many have so copiously written , that i forbear to ad any thing , because all men that know any thing , know these are so essential to a parl. & so estated in it by all laws , customs , & constitutions of this nation , & their places setled by h. . c. . that notwithstanding we have heard voted these late unhappy times the contrary ; yet as true as truth it self it is , that no true english legal parl. can be without them ; and therefore the text puts the non sine communitatis & procerum assensu ; for the rule is quorum est instituere corum est etiam destruere , as without the lords and commons both , and each of them , no enaction can be made ; so without them can no enaction be discharg'd . but of this enough , because i have every where in this comment , asserted their necessary co-operation to enaction of laws , according to what the books of law , and the law of use and practice warrants me ; passing by the rest of the chapter , as only matter of recapitulation and abridgment , together with application to the prince by way of complement , & prayer ; that having in the scale of justice weighed the arguments , and being throughly satisfied , that what the chancellour had undertaken in behalf of the laws of england , he had conveniently , and to his expectation satisfied him in , he would conclude , that the laws that have so just , pious , and well-setled a foundation , may be accounted of him not onely effectual and good to promote order , piety , and wealth in england , but also the best and most commodious to those , and such like ends , for this nation , of any laws in the world ; and so i end this chapter . chap. xix . solum igitur unum de his quibus agitatur animus tuns , restat explanandum , &c. this chapter brings in the chancellour proposing the method of his discovery to the prince , how judgment is inoffensively to be made of the two laws ; and thereupon how his promise to satisfie the prince's mind in the scruples it has about them , will be accomplished . now because the question was , whether the common-laws were as good and effectual to the wise and orderly government of england , as the laws civil were to the empire , he seems in this chapter to premise something antecedent to the main of the arguments ; as first that it is digna & nobilis quaestio , and such as will deserve his diligence to be informed of , and concerning it princelyly to judge . for that i take to be insinuated in those words , etiam & accomodè judicari mereantur : then secondly , that in disquisition and dijudication of them , there ought to be solid judgment , and modest delivery , because comparationes odiosa sunt , that is , comparisons are as they are mostly managed , make baits and ventings of partiality , rather then inductions of reason into a method of proof and trial of things , upon the good and evil of them perpended . and this the text-master the rather mentions , because he would not onely shew , that he does not enter on this argument upon choice , but necessity , has aggredi non delector ; but also to shew , that there may be a profitable use of comparisons , and that in the sense they might and ought to be used , they are amiable , useful , and not odious . for besides , that comparisons are to the judgment , as light is to the eye , the medium of discerning ; and that by them , under the rational sense , appeal is made to the gravity of that tribunal for judgment : even god , after the manner of men , uses comparisons , to reproach the stupidness of mortal madness , when he compared , as a fountain of living water saith , he is deserted by his ingrate creature , for broken cisterus that will hold no water . and thus he proposes his controversie ; god had delivered israel from many evils , and many times interposed his power and goodness to their danger , upon which he expected duty from them in some proportion to his indulgence to them ; which they not affording but the treasures of wickedness , being in the house of the wicked , ver . . and violence being in the rich men thereof , ver . . from the incorrespondence between the venture of god with man , in his voyage of life , and man's return to him for his talents credited to him , he deduces this resolution to make them sick in smiting them ; as directing in his method the true use of comparisons , to learn by the result of them , after consideration of their circumstances , what is good or evil , best and worst of them compared , and to chuse the best , and refuse the worst , non ex meo judicio , saith our text , sed ex his in quibus earum differunt sententia , efficacius capere poteris argumentum . . that there ought to be a due understanding expressed in the preponderation , and delivery over of a man's practice and choice to one and not the other : for comparisons being to an end of equality , the true nature of rational comparation is not attained ; if wherein things are what they are , be not throughly considered , vbi conveniunt leges , and in casibus ubi dissentiunt , says the text : this is necessary to the proper apprehension of the laws , as they are the subjects of choice , and as choice is made upon that digna pensatio , which is the refulgency of well-applyed reason . the drift of the chancellour in this chapter then is not to make , as tully's words are , contentionem & comparationem de duobus honestis , to contentiously compare the two laws ; but to compare them so , as to understand whether of them is upon tryal fit or unfit here for this publique use laws are designed for . thus did salust compare caesar and cato , and iulius capitolinus balbinus with maximus ; yea , thus did plutarch the noble romans with the greeks , and with others of their own nation . and thus does wisdom instruct to do , to make the choice of what men like and adhere to , more rational ; for were it not for comparison , and the view wisdom ' takes of things and men in the glass thereof , how would polidorus , the son of aicamenes , whom pausanias reports to be one , who neither said , or did any thing , to the injury or reproach of any man , but joyned humanity with justice ; and piso , the onely and humble moderate man of his time ; and hermodorus , whom the gaddy ephesians banished , for that he was a grave and well-pois'd man ; and such as trajan , antoninus , and others , be discovered from nero's , plautianus's , and corocotta's , who were beasts in mens bodies , and who make all where they come , worse for them and weary of them . this good then comparisons occasioning , when they are used soberly , and according to the intent of our chancellour , they are of excellent use ; and will , ( as our chancellour hopes , ) make good to the prince , that the laws of england are not onely bonae & efficases , as he in the former chapter calls them ; but frugi & efficaces , that is , effectual not onely to punishment of evil , but benign in the frugal and moderate expression of themselves , to encourage goodness ; and thence deserve melius praeconium , then by their rigour they otherwise would : and so ends the th chapter . chap. xx. si coram judice contendentes , ad litis perveniunt contestationem super n●teria facti , quam legis angliae periti exitum placiti appellant . this is the first instance of the dissimilitude of the proceedings of the two laws , and 't is in the enquiry of the truth of the matter of fact which is in controversie , upon which duly cleared , the sentence of the laws is given : for though both laws aim at the discovery of truth , and in both laws the judges are to proceed , secundum allegata & probata , and to deliver righteous judgment according thereunto ; yet in the manner of the proof , not in the end whereto it tends , arises the discrepancy . si coram judice contendentes ] here is set forth the parties pro and con called contendentes ; not that always there actually is , or religiously ought to be enmity of mind , where there is legal difference : for then the power of god in the magistrates hand , would support a breach of that commandement , which says , love one another , and thou shalt not hate thy brother in thy heart ; because where ever there were rancour of mind , there would be a subterfuge to that distemper , in the pretence of legal justice ; which though it too often be , yet is it not always , nor necessary to be so charged on all contenders at law ; since sometimes that course is unavoidable , and may consist as well with habitual charity , and amicitial integrity and fervour , as did lots and abraham's parting upon the contention of their servants ; notwithstanding which , their friendlyness was full and cordial : but they are called contendentes , because the parties in course of law are in a politique battail , wherein juridiquely they draw forth their forces each against other ; the plaintiff affirming , and the defendant denying the matter he is accused guilty of ; and because what men either love or hate , desire to have , or are loath to lose , that according to the impetuosity of their passion they apply themselves to the obtainment of . therefore all authours , to express eagerness and intentness of mind on any thing , render it by contendere . thus contendere cursum ad aliquem , is to set with a good will to any one ; contendere agmen , to lead a force of men to the relief of a party , or to gain a pass . so tully , contra vim gravitatemque morbi contendere , and omnibus nervis contendere , and plurimis verbis aliquid ab aliquo contendere . this and the like shew , that the parties that would legally evict one another , are therefore thus called , because they do manage a civil combat , and try a juridique mastery , upon which they are said , coram judice contendentes . coram judice ] this makes contention lawful , in foro saeculi , because it is an appeal to the civil magistrate , as the oracle and judge ; and it supposes him to have power , because it appeals to him for tryal and sentence , which it could not reasonably do , if it did not allow him cognizance of the cause , which it doing , takes off all private revenge , and all contumacy against the ordinance of god : for the magistrate is set by god to settle debates , and thereby to prevent disorder , injustice , and confusion . hence is it , that by the law of nature and nations judges are every where , and in all times , set up and repaired to , and all contentions setled by them . and that this office was patriarchally in the heads of families , after in the priests , after in judges , civil magistrates , and so is to this day , no nation affords not testimony to it , no man can be ignorant of it . ad lit is perveniunt contestationem super materia facti ] that which the common-lawyers call ( after the arrest or appearance , and declaration upon it , to which the defendant pleads ) the issue of the plea is by the civilians termed litis contestatio ; because the citation summoning the parties to appear , their appearance , and the legal testifications of their minds is termed litis contestatio ; and lis we know is so called , à limite , because the first quarrels that were , are thought to be about bounds : and hence because the grounds of this variance were things solid ; lites were accounted other gates matter then iurgia , those we call brawls ; for they may be among neighbours , without breach of friendship ; but these contentions are things of hostility : and therefore though they may be lawful , and are so ; yet because they are perillous to , and minacious of the extirpation of charity , not onely does ingenuity decline , but christianity reproach it , as a spot that is none of the spot of god's people , but a smack of the old serpent in the leaven of his imparted enmity , and disaffection to man , whom he would make as unlike god , in good , as his malice can plot and effect : yet so far is the prudence of government necessitated to give way to it , that to prevent the ferity of humane nature ; which if it could not this way vent it self , would do it more butcherly : it allows suits at law to determine what otherways cannot be determined , the partialities of the respective contrarients , rendring them incompetent judges . and this the law civil calls litis contestatio . quintilian names it litis productionem , the libel or roll in which the grievance we have from any one , or more , is at large specified . and the lawyers makes contestation to differ from protestation , attestation , detestation , as alciat has at large quoted authorities ; by which it appears , that this contestatio litis is the solemn production of the matter in contest before the judge , with intent of affirming or denying the truth of the fact . for the fact being that , upon which the law arises , the proof of that is the carriage , and the disproof of it the defeat of the cause or contention , testes dicuntur quasi superstites & antistetes , qui stant dictis , vel factis : so alciat . so that witnesses being necessary to prove matter of fact , the law requires that they be legitimi & idonei , those which in some sense were present , either by sight , hearing , or some other lawful way , by which they are enabled to give positive and indubitate testimony ; which they the more unquestionably do , when they are assidui , as the law of the twelve tables is : that is , saith a gloss , locupletes , men of worth , who do not testifie by their testimony to make a gain , but are omni exception● majores , which some are not , whom the civil-law therfore excludes . for matter of fact being the ground of contention , the judge is to see the proof correspondent to the averment , or else the litis contestatio will fail in the proof , and appear rather matter of malice , then zeal for justice . exitus hujusmodi veritas , per legos civiles testium depositione probari debet , in qua duo testes idonei sufficiunt . all contestation is to some issue , and that issue must be determined according to the proof of witnesses ; so is the text of civil-law : for though in some cases single witnesses are allowed ; yet in full proofs of facts two at least , and those spotless and plenary witnesses are required as sufficient ; and this the civil-laws had from the mosaique-law , which undoubtedly was according to the law of nations equity , wherein god has so instructed mankind , to minister thus to justice , that no less , nor no other proof for the main should be , then this of witness , and for the most part of or in number . for in deut. . . one witness shall not rise up against a man for any iniquity , or for any sin that he committeth ; at the mouth of two witnesses , or at the mouth of three witnesses shall the matter be established . in which words , god has put much weight upon witnesses , provided they be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , such as witnesse de re vera & certa , in their own knowledge ; and that which they knowingly and truly making known , and publickly standing to , are therefore by this law to be believed , and the judge justified in sentence giving according to this evidence ; yea , though in his own conscience he believes the testimony is not good and just , he is bound to declare according to the testimony of two or three witnesses ; for god has said that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , shall stand as a pillar that is not to be removed , but bears the weight of truth on it . the truth of which is not onely made good from the texts of civil-law , but from the expositors of this text , and by the most unerring doctor , who not onely lay in the bosome of the father , but knew the heart of man : yet even he our lord iesus in the . of math. . confirms this : so iob. . . and the apostle , cor. . . and heb. . . these authorities shew the descent of two witnesses for proof ; and therefore ludovicus capellus , a learned man , doth not without good ground reproach that papal sanction , juri tam divino , quam humano contrarium ; which for proof , against a great church-man , will have . witnesses , against whom no exception can be : for since , says he , god says , every word shall be confirmed in the mouth of two or three : so much super addition is to make the proof impossible almost , and so to continue the sinner unpunished . onely the text here puts in a word , which well explains the sufficiency of this number , when they are idonei ; which what that is , the laws mention , as i have quoted heretofore in this chapter : yet 't is worthy addition , that as the rule is praesumitur quis non idoneus nisi probetur idoneus ; so by contraries , praesumitur quis idoneus nisi probetur non idoneus ; for there is a good gloss to this purpose , approbatur quis eo ipso quod non reprobatur . and surely , where no just attaint can be made of a persons understanding , fidelity and privity to that he swears , his testimony ought to be taken as from a fit witness ; since no honest man will put himself upon the attestation of any cause , which he is not , by knowledge of , a fit witness in . sed per leges angliae veritas ist a non nisi . hominum de vicineto , ubi factum hujusmodi supponitur , sacramento judici constare poterit . this is brough in , not to prove that the law of england does not allow proof by witnesses , one in some cases (a) unus testis sufficit non ad damnandum , sed ad inquirendum & in pecuniariis ad deferendum reo jusjurandum purgatorium , but not in treason , (b) here two must be ; and so in other cases , the more witnesses are , the clearer probably is the cause to go ; but to shew , that over and besides the two witnesses , the law appoints the sheriff to summon a jury of twelve men in number , and those liberi & legales homines , and those de vicineto , dwelling about the place where the fact in controversie is , who being presumed to know best the truth , are to pass upon their oaths their verdicts , upon hearing of the evidence or witnesses deposing , what upon their oaths they believe to be the truth , &c. in all which cases within the trial of juries , there are special qualities of jury-men limited by statute , according to the nature of their enquiry . thus jurors in indictments are by h. . c. . jurors within the county or without , e. . upon life and death , h. . c. . h. . c. . upon forcible entries , h. . c. . before escheators , h. . c. . before the sheriff in his turn , r. . c. . to enquire of felonies in corporate towns , h. . c. . on attaints in london , h. . c. . h. . c. . h. . c. . these , and the like , the statute . law provides for juries , without which no trial of fact can be . which use of juries , however some have been pleased to affirm , that they were introduced by the conquerour , mistaking ( i presume ) his taking of twelve men , who out of every county were chosen reporters of the countrey customs for these jurors in matter of fact between man and man. i say , however mistakes may herein be ; yet sure it seems to me , and to others more wise , then i dare presume to think my self , that jurors are very antient here even from the saxons times . for in the saxon laws mention is made of them , and that as a peculiar set of men , that were in matter of fact to judge the truth , as in matter of law the judges are . and by glanvil it appears , that when duel was banished , clementiâ principis de consilio procerum populis indultum , then the more frequent use of juries begun for trial of causes ; which h. . did , to discard the uncertainty of that tryal , cum enim● ex unius iurati testimonio procedat duellum , duodecim ad minus legalium hominum exigit ista constitutio iuramenta . for the number twelve , it should seem to be one of those scripture sacred ones , which the law delighted in . the tribes of israel were twelve , and the stones and the names written on them on the breast of the high priest were twelve ; our lord chose his apostles twelve , and their glory in heaven is denominated by twelve thrones ; yea , the heavenly ierusalem is said to have twelve gates , and twelve angels to guard it ; so the patriarchs were twelve . acts . . and solomon's officers were twelve , king. . . so sam. . . the thousands of chosen men were twelve , and the sealed thousands in the rev. were twelve ; twelve bullocks , and twelve he-goats were an offering for all israel , ezra . . so with us here the judges of old were , the counsellours of state of old twelve ; and he that wageth law must have twelve , that is , eleven besides himself to be his compurgators ; yea , it should seem that twelve was very much a valued number , especially in great matters ; for seneca tells us , that iupiter sends his lightnings by advice , for he calls twelve gods to council about it ; and tully sure intends something by it , when he writes , discebamus enim pueri duodecim & carmen necessarium ; and the famous greek laws , after the parent of the roman laws , was called the law of the twelve tables ; the number . is famous in france , which hath peers . these , and such like things may prevail with us to believe , that something our ancestors held fortunate in the number twelve . de vicineto ] this is a word from vicinus , signifying the neighborhood , any place within the county or hundred , which is in a large sense the neighbourhood , the stat . eliz. c. . enacts a writ to the sheriff , quod venire facias duodecim liberos , & legales homines de vicineto ; and i suppose the reason is , quia vicinus facta vicini praesumitur scire ; which the statute words in the preamble somewhat otherways , as the reason of the writ , for the returning of more able and sufficient iurors for tryals , and for reformation of abuses by sheriffs and other ministers , who for reward oftentimes , do spare at home the most able and sufficient free-holders , &c. and because jurors by the law have great trust , they ought to be liberi & legales homines ; for that 's included in hominum de vicineto , that 's virorum fide dignorum , nere locally , sufficient intellectually and fortunarily , sincere unsuspectedly . sacramento ] this word the law uses to put a dread on men that are under the obligation of it ; because it is not onely an obligation as an oath , but as called a sacrament memorative of us , with what integrity men ought to enter into it . they are understandingly , conscienciously , and resolutely to give verdict according to their consciences , and that not onely because the oath of god is upon them ; and if they do otherwise then justly , god's vengeance impends them : but also because the law has put her power into them in point of fact. and if they have not the greater fear of god , reverence to the law , and charity to their neighbours , as well as to themselves , they may turn judgment into gall , and righteousness into wormwood . and if they do not perversly , but keep themselves within the limits of their oaths and verdict according to evidence , neither for favour or affection : so help them god , and the contents of the testament ; i say , if according to this they do , undoubtedly they will quit themselvs like men , sacramento astricti , and do in their demeanours clear to the world the wisdom and care of our ancestors , to provide such a remedy against falshood and partiality . the truth of this i know by what i have seen , and found by mine own personal service in juries with persons of quality , knights and gentlemen of the county of middlesex , my worthy neighbours , and that in causes of very great moment , and on grand enquests ; for onely with such , and in such causes , have i been engaged : and i am further humbly boldly to say , that if juries be kept up in their credit , and gentlemen of the best quality be by no means excused , except where law and necessity excuses them , there is no such way of tryal for the justice and integrity of it in the world. for who that is by birth a gentleman , and by breeding and fortune kept up worthy that degree , will charge his soul with the guilt of perjury , for the pleasure or fear of any man ? nay , i further will , under the favour of my betters presume , to add , these great free-holders being thus in service , will do the crown all right , in presenting encroachment upon it ; and the people in presenting all common nusances or entrenchments upon them . and this the sheriffs shall do well to take notice of , that the king's courts of justice are never ( to my observation ) better pleased , then when they see pannels and returns of knights , esquires , and gendemen , of rank and quality before them . and our text gives the reason , because in matters of fact , nonnisi . hominum de vicineto , ubi factum hujusmodi supponitur . sacramento judici constare poter●t . no jury returned , and appearing , no tryal can be , so no sentence ; for matter of fact must be tryed by juries , ad questionem facti non respondent iudices , ad quastionem iuris non respondent iuratores . q aritur igitur , &c. ] the difference of tryals by the two laws being patefied , this is ●he reddition and application , as it were , to its close order , that the prince may see how the chancellour's arguments answer the end of their production . the thing he was enquired about , and undertook to satisfie was , that the common-laws of eng and were bona & ●ffica●es for england , as the civil laws were for the empire . now this he supposes he has done in part , by shewing that the proof of matters of fact , is by the english law to be by the oath of two or three witnesses , as the civil laws require ; and because he supposes in the engl sb law there is a super-addition of strength to the validity of proof , and the p●evention of falshood by the juries , which are on their consciences to judge whether they think the matter of fact is deposed ●o and in its evidence clear , he ●hinks this the rationabilior & efficacior ( via ) ad veritatem , then otherwise . but of this enough ; and if by any thought too much , which ( under favour ) i think has all imaginable modesty in its assertion . let that excuse the chancellour ; and his humble e cho my self , the law of england has thought so , & neminem oportet esse legibus sapientorem . chap. xxi . per leges civiles pars quae in litis contestationem affirmativum dicit , testes producere debet . this is suitable to reason , and the method of all laws , for those that commence a suit to make good their action by proof . for besides that , the lawyers say , in his quae pertinent ad litis ordinationem , favemus actori potius , quam reo , which makes the plaintiff have the advantage , as he is the occasion , and so may move fast or flow as he sees his advantage : there is reason so it should be , because the action or contention either justifies or abates , according to the actors testimony valid or not . for though the law civil de require of an actor oath , that he has not begun his suit injuriously , or on purpose to disquiet his neighbour , but upon assu●ance that he has a good cause , and the reus or defendant do likewise swear , that he shall make a just defence ; yet does the law require testimony be given by such persons , quos ipsemet ad libitum s●um nominabit , that is , by such idoneous persons as he shall produce , and shall be allowed , and not excepted against . this is the tenour of the law 's direction in affirmative contests , wherein the opinion is , duobus adserentibus affirmativam magis creditur , quam etiam decem negativam proponentibus ; and therefore our chancellour has rightly said , that pars quae in litis conte statione affirmativam dicit , testes producere debet . for so , besides the other authorities , paulus adds , incumbit probatio , ei qui dicit non qui negat ; on which the gloss says , duas ponit regulas haec lex prima , qua dicitur affirmantem probare , &c. from all which appears , that the proof lies upon the affirmative party , for the reason that follows . negativa autem probari non potest directè , licet possit per obliquum . all affirmations are opposed or weakned by negations , and negatives are either facti , juris , or qualitatis ; of all which negatives , the hardest to prove is that of fact , which our text intending , therefore says , it cannot be directly proved , though indirectly , or obliquely it may , that is , negativa coarctata loco & tempore potest probari ; otherways the proof of it must be indirect : as for example , a. accuses b to have been at york , and there to have committed such a facinus , in proof of which he produces c. d. e. b. cannot prove that he was not at york , against the positive testimony that he was ; but he can prove the negative by collateral testimony , to wit , that at that very same time , b. was at exceter , in such a house , and with such company ; which admitted true , proves the negative obliquely , to the improbation of the affirmative peremptory ; for the rule is , omnis enim res sit dubia negatione ; which i understand in a good sense applicable to affirmative testimonies , which are so far weakned in their credit , as the negative of them seems , and is most strongly supported by circumstances , introducing belief , that the affirmative is not true , medo & forma . exilis quippe creditur esse potentiae , minoris queque industriae , qui de omnibus quos noseit homin bus , duos reperire nequit ita conscientiâ & veritate vacuos , ut timore , amore vel commodo , omni velint contraire veritati . this is written , to shew the danger that the positivity of two witnesses that do affirm , may do to the right of a cause ; for if two in number assert upon oath what must stand , and the judge must accordingly judge upon ; then industry to seek out , and influence to perswade for love , compel by fear , or bribe by reward , may do what it pleases with two , that it may find out for its purpose : which done , be the judge never so learned & just ; yet by the civil-law , he is supposed by our text to give sentence according to the fulness and positiveness of the evidence ; which though it be a reason urgable against any thing , which is mortal and mutable ; yet is thought by our chancellour an argument of strength here , when the text says , testes producere debet quos ipsemet ad libitum suum nominabit ; which advantage given to the actor in a cause , is so great a favour to him , that if he be not felo de se , and desert himself , he cannot but succeed in his cause . now this wanting to ones self , as here 't is brought in , is said to be ob exilitatem potentiae , that is , by want of wit , and inaptness to business ; which is a sense pliny puts on exilis , when he opposes plenus to it , making it the absence of what is vivid , vigorous , and masculine : so exilis aper gracilis & malè saginatus in varro ; exilis copia ; and genus sermonis exile , aridum , siccum , cui opponitur liquidum , fusum , profluens ; and exile solum & exilia dicere de virtute , which arises from either a natural defect , or a desuetude and stupor of nature that makes men impatient to be troubled with business , and unhappy in it . they being as much to seek of wisdom to manage it , as the psylli , a people of india , are mopish and superstitiously ignorant , who because the south-wind is harmful to them , go to war with the south-wind : or the thracians , who when they see their governour make many high ladders , pretending to mount up by them to juno , and before her to accuse them of contun●acy and stubborness , hereupon they are so terrified , that presently they do whatsoever they are commanded to do . this easiness of reach , and softness and indigestion of reason in the mind , will make a man key-cold to action . and so may minoritas industria , ( as i may so turn the chancellour's words ) make a man not improve what he may to the uttermost ; whereas industry has a notable effect , and almost an omni potentiality attending it , which i have in part heretofore shewed in the notes on the eighth chapter , p. , . and will further in sundry presidents , wherein industry has served men to high and fortunate purposes , not onely as it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that which makes men crafty to lye in wait , but bold as hunters , are , to venture on the greatest design they have a mind to ; which rabbi david glosses on the words of david , psal. . . prohibueris ne de industria peccem ; but as it is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that which is the net that encompasses whatever we have a mind to , and the girdle under which we bring all our aims ; yea , that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which makes us enjoy what we obtain with the good-will of all men , who account it rightly placed , and us not unworthy of it . this is the industry of providence , that strikes while the iron is hot , and the spirits warm ; and that by providing for a fore-seen evil day , makes the evil of it abortive , and conducts the havers of it into their meridian . fulgosus tells us of a notable young don that was a pregnant spirit , and thought nothing too good for himself ; who one day came to alphonsus the eighth of castile , to ask of him the government of toledo ; the king looking upon this youth , as unmeet for such a charge and trust , refused his request : but the young gallant would have no denial , but persisted in assertion of himself to a kind of courtless impertinency , telling the king , that he saw many young nobles about him , who because they were his companions in play , were also made happy by him when he was in earnest in a throne ; and that he found in himself great excitations to brave actions , which he desired to express in his service , if he might be honoured by a trust and command therein . which alphonsus hearing so boldly and so bravely uttered , granted his request , and a brave man he proved , fellow to any his contemporaries . the like is reported of hannibal , whose industry was such , that though he were many years in an enemies countrey with an army of men of different nations , language , habit , manners , who were differently religion'd , arm'd , addicted ; yet so did he unite them to him , and to one another , by the justice and strictness of his discipline , and the industry he expressed in circumspection , that in the utmost straights of war , he never was disquieted with sedition . so that by this it appears , that industry and diligence in business , has so much of the plenarty of worldly felicity entailed to it , as god permitteth ; and that nothing in ordinary to the effection of extern means , is restrained from being the trophy of its conquest , and the sacrifice of its vigilance . which emphatizes the chancellour's argument to the end he prolated it ; for since industry is thus prevalent to good and to evil , as is evident in the examples of both , in which , especially the latter and worst of them it is more frequently and indefatigably expressed ; witness satan , who is said to go about like a roaring lion , seeking whom he may devour ; and wicked men his emissaries who work iniquity with both hands , whose fect are swift to shed blood , and who design mischief on their beds , to whom wickedness is pleasure . i say , since thus it is ; who that is industriously wicked , and wittily industrious , can miss of what he aims at , as it falls under an earthly notion , and is the consectary of prudent endeavour . for as by this in good things , augustus evicted salvidenus , lepidus , muraena , capio , ignatius , and even cinna himself , whom when he had in his power , he so reason'd out of his enmity , and laid his offence so home to him , that cinna was ashamed of his insolence ; and having all his lands and honours confirmed on him , ever after lived a most loyal subject to his prince : nor did augustus repent the prudence he thus fruitfully expressed , because never after he had any trouble from any he had condonated . that look as mentor rhodius admiral of asia ( by sending hermias the aternensian tyrant a subtil message , by the belief of which he was cogg'd into his power ; whom mentor being once possessed of , so prevailed upon by fear & fallacie industriously applyed to him , that he got his signet , and then wrote letters to the several towns , that hermias had entred upon , and for him were held , signing them with his seal ; whereby he ( without bloud ) gained delivery of all his masters losses , with his enemy also : and all this diodorus says he did , by the prudence and industry of a warlike soul , which preferred secure policy , before dubious war , and subdolous stratagem to manly encounter . as he , i say , did do this great service to his master , by industry , in knowledge of hermias his humour and weakness , and accordingly thereto framed his applications : so may any man of power and diligence , wind himself into either an admirer of his parts , or a fearer of his power , or a flatterer to his favour , or a vassal to his purse , and them makes his servants to any pleasure he will command them . for men are to the soveraignties of love fear and advantage , such vassals ; that they make rendition of their integrity to them , as readily as the world did to alexander , whom no enemy encountered with ( saith diodorus ) whom he overcame not ; no city besieged he , which he carryed not ; no nation came he near , which he victor'd not : which i do not mention , as onely the extraordinary pleasure of god to have it so , as it is evincible in sundry cases : but as it seems to be the consectary of martial prudence , and active wisdom ; which probus methinks puts out in a notable example of one who was ever in the head of his armed men ; and as he attempted no great thing without them : so did he no grievous thing by them . all his enterprises had the ballast of counsel ; and because they were once well done , as they needed not to be repented of ; so did they not miss of his end , which was either to reform what was amiss , or to introduce what was expedient . in consideration of all which , supposing men be knowing , and will be active , what may they not accomplish ; and especially in testimonies , where if they go by number , they may be so contrary to truth , as nothing more can be . for witnesses a man may find enough ; and if they be conscientia & virtute vacuos , they will depose anything they are cajouled to depose . for conscience is that sweet noted syren ; that makes a man have all delight , while it witnesses integrity and clearness ; 't is that which is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which will render a man bold end fearless ; free in captivity , joyful in sorrow , abundant in want , glorious in rags ; 't is that , which when good , is a continual feast , which holy men have rejoyced in , and evil men onely made shipwrack of . the excellency of a good conscience is known by its companions , faith and charity , tim. . v. . and . and c. . v. by the study st. paul expressed to keep it , act. . . and the use he made of it , and the defence he had by it , pet. c. . v. . & . indeed , what a good conscience is , the contrary can tell ; for a bad conscience is , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as gregory niss●n expresses it ; and philo , that every evil man is condemned by his evil conscience . and when truth is not regarded , which god so highly values , that he calls himself a god of truth : and his son calls himself the truth , and says of truth , that it shall make his free ; that it is the means of their sanctification ; that it is a fruit of the holy spirit . if truth be a denizen of heaven , and a fellow commoner with god at the mess of eternity ; and if the reward of it be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as epictetus says , if god loves truth in the inward parts , and will be served of those that draw near unto him in spirit and in truth : then , tthen , to be void of truth , to have that kept from its office in informing conscience , and so keeping a man free from the great offence , is to lye open to all mischief ; 't is to be beautiless , and without all form of virtue . thus the earth is said to be without form , and void , gen. . thus the wanton young man is said to be deficiens corde 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which our translators render void of understanding ; yea , and void has a sense of perishing and adnulling , deut. . . it is a nation void of counsel ; the word is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , periens consiliis ; and thus the lawyers use the word , making void , for nulling , cancelling , unsaying , undoing . so that when our text says , conscientiâ & veritate vacuos , it intends such prostigateness and debauchery of soul , as has no tincture of god , no grain of restraint to the utmost degree of vildness ; no not to such a measure of impiety , as the apostle calls working iniquity with greedeness ; insomuch , as what god says of israel turned into the degenerate plant of a strange vine unto him , jer. . . and is expounded by the prophet hosea in the . of his prophecie and the first , to be an empty vine , is but what this passage imports , in those phrases of detraction and abasement , conscientiâ & veritate omni vacuos , & is what the wise-man says of the lewd woman , she forsakes the guide of her youth , and forgets the covenant of her god , that is , she is as vild , as voidness of truth and conscience to god and man can render her . vt timore , amore , vel commodo , omni velint contraire veritati . this follows upon the former vacuity , when god is not in the terrours of conscience , and in the conviction and light of truth in all a man's thoughts , then he lies fit for all occupants , and hangs out a bush , to toal in all comers ; vice as well as nature , in a sense , endures no vacuity hence is it , that it says to god , depart from us , we desire not the knowledge of thy law ; but it complements satan and his creatures in , and bids them welcome . those lovers , it has strewed its bed with roses to entertain ; and all this is done , to gratifie the combination he is head of against truth : truth is the queens daughter , all glorious within ; and he onely delights in her whose she is , and who onely knows throughly what she is . and so far are onely men aimers at , and prosecuters of her , as they are partakers of defecated reason . the soul while it fits at home contemplating truth , it seeds on mannah coelestial viands ; but when once it wanders abroad , and will find truth , where god hath not bid man to seek it , nor promised he shall find it ; then there is danger of dinah's misfortune amongst the daughters of the land , innocence and integrity have no mines and snares so corruptive and ruinous to it ; as fear of power , love of favour , hope and desire of profit : these are in most the price of conscience , and truth with them . fear , 't is a fruit of sin ; and therefore the fear of man is a snare , because the fear of god is not made the guard : he that has commanded not to fear man , whose breath is in his nostrils , has dictated , why he dehorts there-from , because such fear hath a snare and a ●it attending it ; 't is timor absorptionis non cautionis ; 't is a fear that disables to opposition , and leads man a captive to all mischief , ier. . . this was moab's fear , timor exantlationis ; 't is a fear that makes men desperate to venture , and helpless in miscarriage : no , save us master we perish , when the storms and winds engage those our embarquings , christ is not a friend at hand in this trouble . and therefore no wonder this base fear wrought so on the cardinals , when pope iulius secundus stood to be pope , that they knowing him to be a bold and daring spirited man , and impatient to be crossed , were so awed by him , that they durst not but choose him pope , because they consulted more how to wave his displeasure and purchase his favour , then discharge a good conscience . amore ] love that 's the next fury , a passion , like the apples of sodom ; if good , very good ; if bad , very bad . when it s by a kind of miracle from water become wine ; by a prepotency of reason and religion , reduced and bounded : then 't is like the precious spickna●d , which mary magdalen anointed our lord's head with , odo●iferous , very costly and amiable : no ingenuity and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of art or nature , but superlatizeth it self by the touch and tincture of this ; it is the rapsody of all transports ; and if the magnetiques and cabalistique charms of nature be any where , 't is here in love . the love of every man is his weight , that he is that he loves : there is a fixed truth in the poets fiction , the moon will forsake her orb to kiss her endymion . thus cir●●an is love , that it leads creatures madding , without reason or religion ; which causes , the holy ghost to cry to us by the wise-man , omni custodia , keep thy heart ( the fountain of love ) with all diligence ; for out of it are the issues of life and death . and because love , which way soever it byasses , is so potent ; therefore st. paul when he recounts what a christian should do for christ , who has done so much for him , mentions this as the motive , the love of christ constraineth : no influence of the pleyades is so sweet and so effectual as love ; it has a magnetism , that when it relates to art , will perswade an eudoxus to be a mathematique martyr , and pass his li●e away to the suns flames ; so he may purchase the dimensions of tha● fiery body , for the benefit of posterity ; and when it is set on worse objects , 't is as heroique and impetuous . for which cause our lord leaves no antidote more commended to his followers , then that amulet against love of the world ; because there is danger any love rival with christ , will be prevalent against the love of christ in us : christ is spiritual , and we are carnal ; christ is holy , and we are wholly averse to it : and because amor est inter pares , & quic quid impar dissidet ; therefore christ , and the world , and our selves , cannot be coparceners in love : love , like the rainbow in the ●●orm , is no●h●ng but every thing , save what it should be : 't is david , white and ruddy , the victor of goliah : but the victory of bathsheba , which i note , to usher in the specifique worm , that corrodes and eats out the vitals of pure love ; this world and the lusts of it . this then stronger then death , because it carryes men beyond the fears of death , to gratifie the pleasures of sense , being the mist before solomon's eyes , that he could not see what his amorous wander after knowledge would penitentially cost him , is that in which every man almost miscarries : as 't is that fogg and gloom , in which neither sun or moon , or star of religion or reason is visible . vel commodo ] this is the third traytor to integrity , and a terrible one 't is too ; the poet could tell us so , munera , crede mih , capiunt hominesque deosque ; the prevalence of this with most men , made satan apply it to our lord ; though as subtil as he was , he missed his aim : for the prince of the world had nothing in him ; there was no soul or faculty in him seducible ; no lust of the flesh , no lust of the eye , no pride of life to gratifie : he was all pure , he was altogether sinless ; which if he had not been , satan would have tryed him with an omnia haec tib● dabo . this , this advantage is the bait to every sin ; it seduces the priest from his zeal , the states-man from his integrity , the souldier from his honour , the lady from her modesty , the servant from his fidelity : 't is the great apollyon of souls : this made banister betray his master the duke of buckingham , in r. . his time . this made the wise-man call the love of money , the root of all evil . oh! the trea●hery of rewards ! it has blinded the eyes of the judge , and hardned the heart of the father , and rebelliously lifted up the horn of the ●on , and heightned the ambition of the servant : yea , it hath made the philosopher a mer●enary , and the threasurour apostle a traytour : and therefore severus that loved money so well , that the h●storian says , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. though he gathered money from every project , and loved to have a full chequer ; yet he never spilt bloud , or put any man to death to get money by it . which considered , our chancellour has well accented the contraition to truth , to depend on the seduction of these , or some of them . and the rather because not onely the seduced's own soul may be endangered by it , but even the souls of others , who by the oppression of this may become desperate ; for the law being , that the testimony of two must stand , hos potest tunc ipse producere in testimonio in causa sua , says the text. hos potest tunc ipse in testimonio producere in causa sua . 't is not said hos debet , but potest , because that he does discredit his cause ; by such inidoneous witnesses is his own folly , and his causes loss : the law civil is not hereby chargable with neglect of justice ; for as by that , they that are blemished , are uncapable to give testimony ; so by that the judge is allowed to refuse it : that testimonies are accounted , as their persons are that give them , is plain by that of modestinus : in testimoniis autem dignitas , fides , mores gravitas , examinanda est ; & ideo testes , qui adversus fidem suae test ationis vacillant , audiendi non sunt . and calistratus , after he has notably told the qualifications of apt witnesses , concludes , nam si careat suspicione testimonium , vel propter personam à quâ fertur , quod honest a sit ; vel propter causam , quod neque lucri neque gratiae neque inimicitiae causa sit , admittendum est . and that there are many causes that do invalidate testimonies , tholossan , has to my hand collected . to whom i refer the reader ; which clears the civil-law from admitting testimonies , quâ such , without consideration of the persons , and circumstances of the deposers of them : yet further , as the text is thus clear ; so the judges of that law are required to see to witnesses , that they be stanch , and their testimonies clear and pregnant . for bartolus writes on the texts pre-mentioned this , nota quod potestate judicis conceditur utrum debeat adhiberi fides testi vel non ; and iudex potest refraenare numerum testium ; for though the judge cannot arbitrari in determinatis à lege , yet can he by the law judge of testimonies ; an fides ● sit adhibenda , judicis mandatur officio , saith the gloss : and in matters of fact , ¶ the judge may not admit impertinent articles . so that all things considered , i do not understand our chancellour's meaning , to impeach the civil-law of any defect ; but to commend the common law , which to that way of proof by witnesses which it allows also , superadds the tryal of juries as a remedy , if any subornation of witnesses should be ; which because 't is easier done with two witnesses alone , then with them and jury men , which are , and ought to be men of fortunes and integrity , when witnesses are not required to be so strictly such . the chancellour applauds the way of tryal in england , upon this consideration , that it is less probable to be tortuous , then that of bare witnesses is . concerning the stoutness of juries , in keeping close to their evidence in point of fact , and not to be tempted or threatned there-from , see the carriage of sir throgmorton's jury , primo queen mary : and by reason of the sufficiency of the jurors returned , and the penalty in their corruption , there is ( dare say ) less errour in justice with us in england , then in any part of the world : yea , our justices being such learned and grave gentlemen , as they ever have been , and are , do so rightly inform juries , in the right method of digesting their evidence , that a nobler and braver tryal can no man desire , then by a jury of twelve men , good men and true . et si contra eos pars altera dicere velit , vel contra eorum dicta , &c. this is added , to shew that every action consists of two parties : and as it is the affirmants , or libellers part , to impeach ; so the libelleds , or defendants , to justifie themselves against it . this the text calls in the defendant , or opponent , contra eas dicere , a crimination of their persons ; or contra eorum dicta , an impeachment of their evidence . for as the law does not allow an infamous person to bear witness ; so not his witness to be believed , but excepted against , if he be rationally presumed not to be upright in it : onely that which seems hard , is , non semper continget eos eorum mores , eut facta apud contradicere volentem agnosci , ut ex eorum faeditate , & vitis testes illi possunt reprobari . 't is true indeed , it were to be wished , that witnesses might be enquired into , what fashion they are of , and where they live , and how they behave themselves , before their testimony pass in a court of law. it were also to be wished , that mens hearts were so far knowable ; that the fruits of them , in the faedity of their actions , and the contagion of their practice , might be publique and they not pass for cato's , who are nero's ; nor for saints , who are devils : but that not being possible , nor any humane law usurping cognizance of the good or evil intent of men , but as they are manifested and visibilitated in the practice . how are the civil laws to be blam'd , which when it appears , do provide against it , and by reason thereof , account the testimony weakned in a great measure . for though the judge cannot arbitrate in the positive rule of law ; nor in a civil cause , deny the affirmatives of two witnesses that plenarily swear : yet may he defer sentence , till the party oppressed by false witnesses , may find some expedient , either to disable the testimony ; or the judge seeing the perversness of the prosecutor's end , perswade them to agreement ; which is somwhat of probability to the effection of reparation to the injured , and disappointment to the injurer , though it be not such a curb , as that in tryal by juries is . for there , though positive evidence is the trump that ruffs all before it ; yet that positive testimony is scannable , and having so many eyes upon it , may have a hole picked in the coat of it ; and though the jury cannot take notice of a negative oath , to ballance an affirmative ; yet they may see such cause of doubting the clearness and veracity of such affirmatives , and they may hear truth , denying the charge against it by such circumstances , as if true , are inconsistent with the affirmative depositions . and frequent it is with juries to verdict , as they think in their conscience , the truth of the fact is , upon consideration of the evidence on both parts ; and if so they do , they do ( as i humbly conceive ) what they ought . for they being judges of the fact , are to determine , what their consciences judges clearly proved concerning the fact , and no more : and the fact once stated and fixed , the sentence of law is pronounced by the judge . so that all that hence , can be argued , is , that still falshood seems to be put upon a harder task , and amore inextricable labour , and to grapple with ( as it were ) an impossibility , which it cannot so easily overcome or evade , in the evidencing before justices and juries , as before judges alone ; where they do but deal with two witnesses , and one judge , ( who are a less number then the electors of the empire were , who yet by richard duke of cornwall , were so made plyable , that they chose him king of the romans , who was no german , and who was onely brother to our henry the d ; which occasioned a poet of that time to say , nummus ait pro me , nubit cornubia romae , ) and the work is done , and the cause carryed : whereas in our courts of justice , where there are or judges , and twelve jury-men , of fortune , bloud , breeding , and conscience , ( for such the law requires they should be , & so often i am sure they are ) 't is a hercules labour to attempt this ; yea , and 't wil be that , by which the attemptor is sure to be deceived : for if but one honest unengaged person be in the pannel , no verdict can be , and so no judgment ; which is the reason that the chancellour here reasons so titely for juries , and against the sole evidence of two witnesses ; for though a conslave of cardinals may be bribed , as platina confesses , in the choice of pope alexander the sixth they were , and names cardinal s. fortia for the merchant ; who drove the bargain emptus pro●uldubio profusissima largitione ; yet juries are not so to be dealt with , which makes the credit of them so much in england . quis tune poterit suorum aut sui ipsius , sub lege tali vivere securus ; dum cuilibet sibi inimicari volenti , lex tali praestat subsidium . this is to be understood moderately ; not as if our text did make the civil laws subsidiary to injury ; for that were to cast an odium upon the sacred law of the empire , which so great and so many nations have in all ages been governed by , and as strenuous patrons as himself , do defend to be a very noble and learned law , and conform in the greatest part of it to natural equity . but in that the chancellour says , quis tunc poterit esse securus , &c. both in body and fortune , when such may be evicted by two witnesses of dissolute condition , who may be sons of belial , and for swear themselves , to act a malice against him . his sense is , that to him it seems a greater latitude is left thereby to such sinister courses , then in england by the common-law tryals are . for i take the words not to be verba approbatoria , but oratoria , and to have no further intent , then to make the common-law more popular , and applicable to general security , then he would have the civil-law accounted . nor is this thus interpreted piaculary in our chancellour ; considering , that the municipe law of england , is the darling of the nation , and to speak well of what 's native , is much the honour of an english-man ; though always it be a generous man's quality , to praise what he loves , with no reproach to what is rival with it , at least with as little reflexion , as his fidelity to what he prefers , permits him . to sweeten then what has been charged , as somwhat too sower in my great master , i humbly premise this , that though the civil law requires direct and positive proofs ; yet does it not reprobate presumptions wholly ; but if they be strong and forcible , whereby the certainty of the cause may be illustrated , admits them ; it being a rule amongst civilians , argumentum sumptum à praesumptione valet ; and praesumptioni statur donec probitur in contrarium ; which the gloss thus explains , that though these presumptions do not transferre probationem , yet they do durius onerare actorem probatione tam alias apertiore , quam in civilibus , &c. for though praesumptioni levi non est standum , is a rule with them : yet where presumptions are firm and violent , where they have poize and conviction of reason , there they are leading ; as tholossanus has in his . chapter at large made good ; and as dr. wiseman has very soberly and solidly on this matter defended his laws . onely let me be excused , if i ( notwithstanding all ) do in my apprehension conclude the tryal in a court of justice , by twelve men indifferently chosen , and to be excepted against , if there be legal cause , who after hearing evidence , and considering the nature of it , give their verdict upon oath , according to what they hear really proved before them , as by the common-law is used , to be the best and most probable tryal to be equitable , of any in the world. and though men may possibly be secure in body and goods under tryals by witnesses , according to the civil-law , as we suppose men are abroad : yet do i not question , but that the security of an english-man , under the common-laws defence and administration , is equivalent to any , if not paramount to all . and i pray god , as born i was , and have ever lived under the good government of it ; so i and mine may live and die by the direction , and under the favour of it . et qui iniqui duo tam incauti sunt , quod facti de quo ipsi examinabuntur in initio non antequam in testes producantur , occulti fingant imaginem & figuram , componant quoque eidem omnes circumstantias , quales sibi fuissent , si illud in veritate constitisset . et qui iniqui duo ] this sets out the number two , and the nature , iniqui . now iniquus , the learned know is one that does any thing , contra aequitatem , against right : terence couples iniquus with inimicus , and horace with iratus . and hence every thing of displeasure , we are said iniquè ferre . thus iniqua conditis in tully ; praecium pictatis iniquum in ovid ; pugna iniqua in virgil ; and iniquitas loci , iniquitas hominum , iniquitas temporis , is frequent , to express the straights , difficulties , and miseries , mem suffer in them . so that iniqui here , are such as are made instruments , to make an innocent cause suffer by their villany . tam incauti sunt ] the text in this interrogation , strongly affirms the temper of men set on mischief ; not to do what they do rashly , but with advice , that it may succeed ; or in the scripture phrase , appear done with both hands , with all their might ; which they seldom do , who run hand over head , and incautelously about it . nature has taught us this even in her instinct in beasts ; the most harmful and spiteful of which , are the sub●lest and least-nois'd creatures : who by project as it were , and infidiarily steal upon their prey ; and as they design their rove and rapacity in the night , so they come gingerly and softly to it . this our text calls in the contrary of it , incautien , a frailty that innocence is often guilty of , and as often smarts for this its dove-like credulity : but that which men of the world think in themselves inexpiable , because its the loss of their design , & of that opportunity , which as it may happen , they may never have again . thus did flaminius lose himself by engaging with hannibal neglictis comitiis ) as it were before his commissions were dispatched into all parts of his quarters ; who for want of conduct , hannibal every where circumvented ; which was so great an errour in a commander , as nothing can by him be acted more nefarious to his cause , more proditorious to his souldiers lives , then so to do . and thus do all men of passion , who are , as varro terms paulus , temerario & prae propero ingenio , lose themselves . and therefore satan chooses no feathers for his cap of seduction , no men levis armaturae for his triarii ; he carries on his designs by the achitophels , the goliahs , the sauls , the iulians , that are men of might , that bark not before they bite ; that roar not , before they have their prey in their clutches ; as he himself comes crawling on his belly into our paradise our souls by ill thoughts , sins of pleasure , fanciful dalliances , and pleasing dandlings , till he has engaged us to a nonretreat ; so does he institute his instruments by sophistry and subtlety , by pretensions and fictions of seeming good to the most portentuous evils . and all the prevalency he has ( next the permission of god ) he ows to the liquour he pickles his projects in ; he steeps them in high-seasoned counsel , and the darkness and indiscernable night ( as it were ) of death . no eye he suffers to peep into his projects , but that which is sworn to secrecy : no emissary he sends forth to act it , but such as has drunk down greedily the potion of his intoxication , by which he being lessoned to , and confirmed in sin , works it with greediness : not onely is pleased so himself to be , but zealous to proselyte others , and make them as bad as himself . and all this satan effects by counsel and deliberation , by advice and pre-appointment . the pharisies had a mind to destroy our lord ; they would not rudely and unthoughtly enter upon him , and then consider what to do with him : but they took counsel against iesus ; and because they found his words might soonest be carped at , they sought to entangle him in his words . so in the other gospels , the chief priests and the scribes watched him , and sent forth spyes , which should feign themselves just men . this was the wile and forlorn of these caitiffs , by which they sought to express the malice of their hearts , by bringing him into trouble : which shews , that satan arms his with caution ; they seldom do exire incauti : he lessons them too well to be surprized ; they have all the stratagems implanted on their mind , that may both enable them to supplant others , and keep themselves free from apprehension and suspition . these faux's and catesby's have the cellar and the night ; yea , and the dark lanthorn , whereby they can see , and not be seen . and hence is it , that they being not incauti , are uncaught , till god bring the fear , the snare , and the pit on them , which in his good time he does : but till then , they do not forfeit their prudences by rashness , but do not only lay low in counsel , what they are to act but do fix on their minds the manner and circumstances of their action , which the text here terms ●cculte fingere imaginem & figuram , &c. they do act what they are to execute . thas did the execrable murtherer of h. . of fran by reading mariana's damnable tract , act in his mind the form , and inure his hand to use that instrument , that he sacrilegiously murthered that brave prince by . and thus undoubtedly did faux , by being in the cellar , in sight of the match , powder , and combustible materials , with which he was to do that execrable villany , meditate in his mind , and in the externity and figure of the action , embolden himself to the real acting of it : that look as a painter does , fingere figuram & imaginem of the picture he intends to draw ; and an oratour does contrive in his mind the speech he will utter , and a souldier does design the method he will fight in , and a lover does fancy the beauty he could love , which seeing he loves for nothing , is in the intellect embraced for good , but such as the sense admits such : so when an evil witness is resolved on an evidence , and will desperately depose in a cause against any one whom thereby he would overthrow , he does premeditate what to do , and provides what to say in all parts of his deposition , which may more then ordinarily conduce to his end . thus wise are the creatures of this world to carry on their work , though they have hell for their wages : whereas the onely way to express honest wisdom , is to engage in no fordid action ; but to make the answer of a good conscience , which will comfort in all conditions . this our king richard the first found relief in , when in the emperours hands he was charged with injuries done to the sicilians , he made so pithy and direct answers to them , and excused himself in every point so throughly , that the emperour much marvailed at his high wisdom and prudence , and not onely greatly commended him for the same , but from thenceforth used him more courteously . and indeed , difficulties are the proper touch of prudence ; for as every man can sail in a calm , when in a storm he must be a good pilot , that can keep by steerage his vessel from danger ; so every man that is not a drone , can give answers in easie and ordinary matters ; but to give them ripely and readily in difficult cases , that 's the trial of prudence . upon which consideration , vae soli is a truth in this sense , which is one of the wise-man's sense . for be one never so wise and dexterous ; yet he is but a semiplene witness , and nothing will be carryed by him ; but when two are in joint testimony , and the devil to back and breast them , with steels that are of proof , when he has obdurated them , and turn'd them loose as sinners that will not shrink or give back , then his work goes on with all possible caution . thus warily did he steer charles the ninth of france , to set villoquer to murther lignerols , who from the duke of anjou knew of the massacre ; and yet though he had set the assassin about it , yet when he heard it was done , shewed great trouble for it , and committed villoquer and mansfield , that jointly did it by his command , to prison . thus did he further lead the same prince to some seeming favour to those of the religion , till his designs were brought about , and they were mastered ; which while he was effecting , as he endeavoured by corrupting cardinal messandeino to misrepresent better then it was , and to put a fair gloss upon it to pope pius the eighth ; which he honestly would not do , telling him plainly , that by his majestie 's unexpected falling from the zeal of the catholique religion , all his most valued and precious iewels , were no more then dirt in his estimation . but also when he had effected them , then he sets on the king of navarre , and terrifies him from his religion , and then tells the prince of conde , that there was no more ado , but he must turn from calvinism , or else expect mass , death , or bastile : which three words so wrought on him , that to mass he came publiquely . nor much of a better nature , but sure a like work of darkness , was that of the perswasion of poltrot to murther the duke of guise ; if a truth it be that is reported , that coligui the admiral proposed him infinite rewards . and another told him , ( which i believe to be but a meer fiction , and malevolent calumny ) that he should merit of god , by taking out of the world so great a persecuter of the faith. lord ! what hellish advisedness is this , to make darkness a withdrawing room to such villany of plot and contrivance ; which makes me often think of st. paul's aphorism , as of that truth , which will one day be visible in the punishment of it , when the judge of quick and dead shall come , the wisdom of the world is enmity with god. for as that spanish proverb is , he is a king that never saw a king , that is , he is the happy man that contents himself with moderate things , and can sit at home with short commons . so is he the wise and wary man , that is aware of these wary men of the world , whole unhappiness it is , more often then they think , to have their religion counted hypocrisie , their prudence a wicked craftiness , their policy meanness of spirit , their liberality licentiousness , their affability contemned , their gravity suspected , their name detested , th●ir private conversation imputed to enormous vices , and their deaths extreamly rejoyced at . 't is a good account of the use of power indulged to great men , that theodorick gives , not by it to accomplish wicked , but worthy things , and instead of making their will the reason their subjects should walk by , bring their wills to the reason god will judge them by . to apply this then to our text , the chancellour by these words , qui iniqui duo tam incauti , &c. means that wickedness in witnesses , two or more having designed what they will act , and prepared for whatever can come upon it , are but in so doing true descendants from satan their ancestor , who from the beginning was a lyar , and who principles his to carry on his design by any means : which two thousand thousand that are , iniqui , shall not prevail to effect further then god pleases to permit them ; for he taketh the wise in their own craft , and the counsel of the froward is carryed headlong , as iob's phrase is , chap. . . maugre the prudence they think to express in it , who are as it follows . prudentiores namque , ut dicit dominus , sunt filii hujus mundi quam filii lucis . this scripture is in the luke . uttered upon occasion of the parable of the unjust steward , which while he had opportunity feathered as we say his nest , and in the halcyon of his gainful steward-ship , provided against the winter and storm of his ecclipse and disfavour , the wariness and sovereignty of which providence benign to the futurity of his condition , and preventive of the disfavour of his indignated lord , our saviour not onely commends , but transmits it as a rule for his to practise spiritually , so to use the day of grace and life that the day of desertion and death may be sweetned by the provision laid in , for and against it , for the children of this world so do , and therein are more wise in their generation then the children of light . which scripture because it has much of concern in it to a christians erudition , in the wisdom which concerns both direction of himself , and detection of his rival , the worldling . i shall humbly and shortly write a little of beseeching god that he would assist me as a child of light , to understand the wisdom that is from above , which is pure in principle , and peaceable in practice , and that he would by his grace keep me , in that happy ignorance of the children of this world , whose wisdom though it be notable in its generation , yet in god's account , is earthly , sensual , and devilish . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] these are one of the partyes in comparison so called , not onely because they in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 those of which the world is built and inhabited , or , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 darlings and infants which the world suckles , but as they are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 unhappily so the worlds as the world is theirs , by a complacency and inseparableness , or dearness of love , qui volunt esse filii mundi , aut quorum desiderium est in mundo , saith r. david . the holy language expresses every thing that is more then ordinary , by the name of son , he that is condemned to dy , they call a son of death , a lost man , a son of perdition , those that are married sons of marriage , and so the sons of this world , worldly men , because they are conformed to the fashion of it , and not transformed in the spirit of their minds , as children of light are , but do m●ndana sapere ; relish onely the cookery of this world , and not savour the things of god ; they do mundana quaerere , all their love is so to , and their labour after the world , that they think no toyle too hard , no self-denial too great , so they may grasp the world , and ioyn land to land , and house to house , till they be alone in the earth , and then they do gaudere mundanis , having acquired the world , they acquiesce in it as their portion , and sing that requiem to their souls that they have enough , when as they are in gods account miserable , and poor and blind and naked . these saint bernard compares to oakes and elms , which are great in bulk and of a procerous growth , but they are not planted in the noble garden , wherein the master of them delights to walk , because they yeild no fruit , or if that they do , 't is fruit for swine , not men , tales sunt filii hujus seculi agentes se commessationibus , saith the father , and hence it is that because they bring fruit onely to themselves ; and none to god , they are called not onely by iohn the baptist a generation of vipers , but by god in a vehemency of indignation rebellious children , esay . lying children verse the ninth , children of transgression , chapter the fifty seventh verse the fourth , backsliding children ier. . and chapter the fourth verse . children of whoredoms ; h●seah . children of iniquity hosea . children of the flesh rom. . children of disobedience ephes. . and of wrath verse . children of the devil iohn chap. . these are the men denominated heer , the children of this world . the nimrods , and mighty hunters of the world , who sayl in seas of bloud , to ports of power , who waste countreys , deflower virgins , violate matrons , dissolve polityes , and turn the world topsieturvy , that they may be known to be powerful , the achitophel● of this world , who poyson ages and persons with fraud and falsehood , being proteus's and polypus's , and to save themselves cannot onely be willows , and not oakes , bend rather then break , but become malls , and axes to dig up their own foundations , and to ruine others body and soul , to secure themselves ; who can curse with balaam , for a reward those whom god has blest ; and are so pertinacious in their wickedness , that they neither fear god's angels of terrour , nor regard the miracles that he admonishes them by . these are the herods of this world , who are so in love with what they should not be , themselves , that they study to be applauded vainly , and in the elevation of it forget god impiously : the iudas's of this world , whose kisses have more harm in them , then the staves of caitiff iews , or the swords of butcherly assassines ; the magus's of this world , who will be trucking for every spiritual thing , and will , with our cardinal wolsey , let nothing pass , unless it pays tribute to them . these are they that our lord calls the children of this world ; and whom the prophet david calls the ungodly who prosper in the world , they encrease in riches , and from whom he prays de●iverance : and why ? because they imagine mischief in their heart , continually are they gathered together for war. and who by reason of this , are not onely a grief to , but the terrour of god's little flock , which made the father cry out to god , heu , heu , mihi domine deus , quoniam undique mihi bella , &c. oh miserable man that , i am , o lord , who am every way beset , and have snares on all hands of me , whom the darts of envy , and the open war of fury threatens ; woe is me , who am insecure in my pleasures , in my delights , in my sleep , in my sustenance ; against whom , both labour and rest are combined : thus that father . this is the notion of ●he children of the world , whose malice , power , and policy , would dishearten the children of light , were it not that they were but children of this world , sinful in what they do , changeable notwithstanding what they do , miserable after what they do : for all that they do , god either undoes , o● undoes them , that they shall not see their projects in the plumes of their pride , and in the spread sails of thei● success . these achans get the wedge of gold , and the garments of gaudery , but they have god's curse with it . they get children , and name lands by their own names , but god condemns their children to obscurity ; so that they are in genitorum vituperium & laesuram , or else die , and they leave no name on the earth , no heir to inherit their acquisitions . they think themselves admirable architects , that can pyramidize their names and governments , in some durable monument of strength , and admiration ; but god tumbles down in his fury these mis-instructed structures , and makes his counsel stand . and therefore the power and policy of the world had need to look to its foundation , that it be upon the rock against which no winds or waves shall prevail , and into which no moth of god's curse , or canker of times injury , will work it self ; were it not for this damp , and this hand-writing to the world 's nebuchadnezzar's , what a bochim ▪ what a golgotha , would this world be to god's hidden ones ; to his jewels whom he renders as the apple of his eye ; there would be no lighting on the earth for these doves , though it were to but pick up the crums that are the offals worldl●ngs live upon , but god has in wisdom made the world , and all in it versatile , that there may be some serenato and brize under its solstice , and that the greatest felicity of man might be even by its own sentence imperfect , galienus the emperour came a youth to the empire 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. his first years were prudently and quietly reigned , after , he slackned in his gubernative happiness , and at last he was wholy a bad man and a bad king , severus was a victorious emperour , and of austere discipline in his army , military rudeness he endured not even in britain , though here he had many intollerable provocations ; yet as successful as he was , who was the glorious phoenix of his time , he did not onely say when he lived and looked upon his life and actions omnia fui & nihil sum , but he caused his urne to be inscribed with this , thou shalt contain the man whom the whole world could not , thy narrow bounds shall conclude his body , whose ambition the world was too straight for . thus does god furl up the flying colours of the sons of this world , and put them into a storm , in which they are forced to strike their sails , and level their mast , that they may live and ride out his fury ; which if they do in this world to such a degree , as portius cato did , in spight of all the envy that attended him , which onely injured him to his aggrandization , polishing his prudence , and making his tryed virtue more truly standard and defecate , then otherwise it would have been : which is not often , yet their death-bed terrours and their after-torments , declare them children of the world , who are onely more wise in their generation , then the children of light , who are the other part of the subjects opposed to children of this world. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] here light is opposed to the world , as it is the region of darkness , not in the natural and ma●hematique notion of it ; for that is illustrated by the light of that great taper the sun and its coelestial peers , that do beday and belustre it , but in the sinful & penal notion of it . thus as the world lyes in sin , so the state of sin is term'd darkness , thus s. peter uses it , who has called us out of darkness into his marvellous light ; ye were sometimes darkness , but now ye are light in the lord. so that look as children of the world , suck the milk of the world , sin and pleasures , and cry after the world as their parents , and play with the toys of the world , as their senses and labours are gratified and expended about worldly things , so are the children of light , intent on light ; they love god as light of perfection in himself , and communication to them ; they love christ as the light of matchless charity to die for enemies , and to example his to a suitable goodness ; they love holiness , as the light of irradiation , kindled in the heart of god's elect , by a spark from his essential holiness ; they love heaven , as light of clarification , wherein their vile bodies shall be made glorious , and they shall see god face to face ; in his light they shall see light . these are children of the light , that lucem amant are not delighters , in surfeiting and drunkenness , in chambring and wantonness , but put on the lord iesus ; and in his robe appear to men in the light of shining , and reformed works , works fruits of repentance , worthy of the light of god's countenance , manifestation of the gospel's prevalence and prescription , and of holy mens practice and approbation . these are children of light , qui lucem quaerunt , they seek whom their soul loveth ; light is their joy , and they search after light , to know and prize it , that their joy may be full , in plenitudine lucis internae , quae luci aeternae est praefatoria . and this is much of their happiness , that god in this instinct of theirs to seek light , does not let them seek in vain ; they seek not the living among the dead , light in the darkness of this world , which is wholly obfuscated by the incredulity of jews , the ignorance of heathens , the obstinacy of heretiques , the carnal and sensual sinful lives of catholiques ; may i not ( saith the father ) call that night , ubi non percipiuntur , quae sunt spiritus dei , where there is a clear sight into all policy of project , all mystery of mechaniques , but a darkness to the simplicity that is in christ , where men see not the holy spirit in his addresses , nor feel him in his operations on them . no these seekers , ( far from the phanatiques , and enthusiastiques of our age , ) do not seek light out of levity and sceptical unsatisfiedness , which keeps them lax and unfixed in every principle of truth ; but they seek light as it is coelitus data , as it comes from the father of light , to direct his children to walk in the light ; and they seek it as it is res simplex & aperta , as it is that which will make them walk honestly as in the day , and let every eye into their cell and closet . these illuminates no heretiques , are heavenly daniels , that will have their conversations open , that they being transparent all may see them . and this they do , quia luce gaudent , the more light they have , the more are they justified ; for as they pray , that god would make them lights in a crooked generation : so when they are hea●d in this , that according to the will of god they have requested , they acclamate the light by which they are illustrated to be what grace has made them , burning and shining lights ; and they assault their lord with many grateful tears , o blessed iesus , ( say they ) how many sorrows and sighs has thy presence in my soul rescued and resolved into comforts ? how many mists and foggs , in which all sense of thy blood my ransome , thy spirit my guide , thy advocation my security , has thy manifestation to me despelled , and thy balm anointing my galled and oppressed conscience , asswaged and calmed ? how hast thou caught and saved me sinking , comforted and satisfied me despairing : how , o light of lights , hast thou lightned my heart , when it saw thee in it the hope of glory . thus that father . these are the children of light , who have all the properties of light ; light is res pura , so are these pure in heart ; light is res commoda , so are these useful to the age , and time , and place they are in ; light is res decora , so are these the beauty and glory of their dwelling ; light is res placida , so are these . and hence they are said to walk circumspectly , not as fools , but as wise , giving no offence , neither to the jew , nor to the gentile , nor to the church of god. and are not these thus qualified rare jewels ? do not these whom god accounts his jewels , and over whom he extends his everlasting arms ? whom he hides in the evil day , and whom he hears for thousands of sinners , that reproach the holyness of their lives , and would but for them have hell out of heaven soon pou●ed on them . i say , do not such , rarae aves in terris , deserve to be favourites ? and ought they not to be prayed for , that they may fructuose uti luce , that they may , while they have light about them , not be in darkness , and complain of want of light , running into factions and pharisaical follies , by which the true light of religion is blemished , and for which blasphemed , but that they keep themselves free from faction , schism , heresie , separation , and walk by god's light in his scripture-candlestick , which the catholique church faithfully sets forth in its useful posture . and i pray god my soul may have the light of its conduct to heaven , by the ministry of our holy mother the church of england , whose humble son , i ever ( i bless god ) in the worst of times , have conscienciously and convictedly been , and hope ever to continue , beseeching god to visit with his light and truth her many seduced ones , and to make her doctrine and discipline sweetly effectual to their reduction ; whose wander is not more her blemish , then their own danger . this shall suffice for my observation on our lord's description of the subjects he speaks of , children of the world , children of light. now of the praedicate , or our lord's sentence , prudentiores sunt , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; this is a word which criticks make to import not barely a wisdom of mind and speculation , but chiefly of action and dispatch ; not onely a knowledge how matters are to be done , and to give the rule of them , but an exercitial and effective knowledge of them . and thus aristotle uses the word , and thereupon says , that anaxagoras thal●s and others , were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , who were not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , utpote 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and therefore to the compleat knowledge of this word , we must take in that sense that not onely xenophon does , when he terms one 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , a dexterious warriour : but that in which even our lord uses it , in mat. . , . where he calls the virgins that had their oyl in their lamps , and their lamps ready trimmed , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and those that had their oyl to seek , when their lamps should have been l●ghted , and they ready for their lord , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because they wanted expression of more wisdom to make them acceptable , as the other that were punctual in their duty arrived at . this prudence then is of three sorts ; the prudence of the serpent , which when he supposes any danger , will secure his head , and observing where he may mostly be injured . secondly , the prudence of circumvention , and a wittiness of defraudation . and lastly , the true wisdom , which saint basil calls the knowledge , what is fit to be done , and not to be done . the two former were the wisdom of this unjust steward , he would be sure to keep himself from want ; and that to do , he thinking nothing more expedient , then to make him friends of unrighteous mammon , his master's goods under his power , ( he having a value of his corporal worth , and the security thereof from disesteem for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 budaeus makes to have a sense of ●fferri , and animo tolli ) he gives occasion thereby to our lord to say , the children of this world are more wise , &c. which words are not to be understood absolutely , but secundum quid ; not as if there were a more real wisdom in the worlds choice and practise then in holyness and her wayes ▪ for then the wisdom of the world would not be enmity with god as it is ; nor then would the fear of god be the beginning of wisdom , as it is , and a good understanding have they that do it : but it is meant to those ends that their worldly & sinful actions conduce , as they are children of the world , & onely desire to approve themselves to the world 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as owls and cats can see better then men in the night to catch mlce , and vermine , but not to read books , that is in their kind and according to the actions that are proper for them ; so are and no otherwise the children of this world , wiser in their spheres , to gain their temporal ends , then the children of heaven are to eternal & spiritual ones . this then , i humbly conceive , our lord uttered ▪ not to approve sensual and sinful diligence , but to exprobrate spiritual sloth , and by this cock of worldlings vigilance , to awake his drowsie peters . and methinks our lord in saying they are wiser in their generation , then the children of light , provokes his to rouz themselves to holy activity , from this that worldly men shew prudence . and in three things manifest their prudence , probitate electionis , ardore prosecutionis , constantia adhaesionis : the first evidences the legitimation of prudence , as no hand over-head , and extemporary suddain thing ; but that which is cum avisamento consilii & rationis , a fruit tryal and experience ; wisdom dwells with prudence , dictating to it , right time , right method , right instruments of actions . the second propalates the activity of prudence ; 't is no dormonse that lyes snudging , and creeps softly , or appears cooly : no , when it has well chosen , what , when , and by what means , and to what end it is to act ; it vigorously , and with a masculine fortitude executes them , aut vincere , aut mori , is the motto of prudence . the third discovers the fortitude of prudence , 't is big of a generous indefession , and a noble heroiqueness ; what it has chosen it prosecutes , and in the prosecution is weariless and undiscouraged : these are the gradations of prudence . our lord then does not in the first sense strictly predicate this ( wiser ) of the children of the world , in this place . for according to the examen of defecated and primitive reason , as the world is under sin , and the wisdom and tendency of it folly of sin ; so the wisdom of the world is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a very senseless choice ; 't is the choice of leah before rachel , darkness rather then light , belial with refusal of christ : but our lord says they are wiser in their generation , because in the choice of the world , they do choose what 's more quadrate to their sensual selves , a sensual world will best please a sensual heart , and sensual affections ; and because the world is so consanguineous and proportionate to corrupt reason , will , and affection , therefore all the sails and streamers of endeavour are flying , to take the worlds full wind in them ; they make the world onely their choice , and admit nothing in competition with it ; they have no other diana valentina , no other mistriss they value and apply to ; they rise up early , go to bed late , and eat the bread of sorrow , that they may obtain the world , and that had , care not what they miss : and herein they out-strip in generation the children of light . for though they have a more transcendent object , in whom are concentred all the treasures of wisdom and knowledge , and though the kingdom of heaven , and the righteousness of it draw with it all superadditions ; yet the whole thoughts of the devout soul fix not upon god , but scatter and remit their intention to couple with other objects , which makes them miss the mark of having god always ready to be their help in trouble , because they tempt him to punish their ●rail inconstancy with some temporary withdrawings . o how rare is it for a soul to be of david's temper , my heart is fixed , o god , my heart is fixed : the desire of my soul is to thee , and to the remembrance of thy name . where are the saintly merchants , that sell all they have to purchase god's pearl ? and the mary's that forsake all the trash of the world to sit at their lord's feet ? where are the mary magdalens that prefer to be mourners in the sepulchre of a crucified saviour to the theatres of mirth and the rooms of state and pleasure . the world , alas ! has these minions and zealots for it , that will adieu god , a good conscience , relations , yea , even life for it ; and all this with an heroiqueness and chearful gallantry , as they say , when god's clyents come to him with cold zeal , and serve him with refracted and divided affections , looking aside upon the world , when they seem to look direct upon god ; like those of old , whom god reproaches for their prevarication with him , and requires them to cast away their abominations , and not to defile themselves with the idols of egypt ; and those whom he detects for worshipping and swearing by the lord , and by malchom . such parcel guilt christians , his holiness cannot endure ; because their project is to serve themselves of him , not to serve him with all their might : when a storm they see , they consult evasion of it , though it be with abnegation of the truth of god deposited with them , and professed by them . let holiness shift for it self , they are of iudas his company , when they are most and successfullest : so much do good men often give way to corruption , that , with peter , they dare not venture the least tryal ; whereas the world's creatures , as they mind earthly things , so they exert their addictions with vehemence and indefession , as if they meditated the success of it . as god does every thing in weight and measure , that is , to the perfection of its kind , and as comports with so matchless a master ; so do these comply with whatever may be auxiliary to them . fit objects to work on , fit subjects to work by , fit methods to work in , fit time of production , fit rewards to instruments , fit menace to opposites : so great masters of diligence , and so cunning enquirers are they , that they serve times and men , till their mine be ready , and then their arrows are at the mark before the blow is prevented : what posting● for intelligence , what pensions to false servants , what subornation of cabinet-counsel , what prostitution of confessions , what depredations of territories , what , in fine , satanique subtilty does the men of this world act , to bring to pass their desires ? let the facts of caesar borgia , rich●lie● , and other the great cormorants of christendom's policy discover ; yea , surely the carriage of that terrible duke of burgundy , who collected all the venom and poyson , that was in the filthy matter of dead serpents , scorpions , adders , and other mischievous creatures , and threw them in barrels into calice , on purpose to poyson the souldiers that held it against the french , and by poysoning the inhabitants render it intenable . i say , let the prudent love of children of the world to the world , be calculated by this , and 't will appear to be prudence with a vengeance , though it be but that of their generation , in which they onely are wiser ; o my soul enter not thou into their secrets ; o my god give me not a portion with these men in their delicates ; let me be none of those wise-men , who do go down into hell , because they forget thee ; but vouchsafe me that prudence of the serpent , that may protect me from being harmed , and that innocence of the dove , that may keep me from harming others ; and let my soul ever prefer honesty to policy , and to save my self with thy fools , rather then to perish with the worlds wise-men ; whose death-beds have no comfortabler notes then those of despair , which walsey uttered , o that i had served my god , as faithfully as i have done my king , then he would not have forsaken me in my distress as the king doth : or as those in wisdom are brought in groaning for anguish of spirit , and saying , this is he whom we had sometime in derision , and a proverb of reproach . we fools accounted his life madness , and his end to be without honour . how is he numbred among the children of god , and his lot is among the saints ? this i no further prosecute , though it were worthy some further discourse , because it is the gangrene of the age , which has so prevailed against the severity of piety , that there is nothing seems more to be a man's reproach , then to be of pristine simplicity : so far are men declined from that christian candor , and plainness of meaning , that they seem to say that to religion and honesty , which popili●s did to his friend king antiochus , when by the romans he was sent ambassadour to him . . while we have to do in business , let 's do that without either thought of god seeing or hearing us in our counsels , and lay conscience behind our backs , while this that so highly concerns us to effect , be continually before our faces . but god undoubtedly will meet with this , when he besieges with his terrours these worldlings , and reduces them to such straights , that they shall be glad to release all their confidences , to obtain a minutes ease ; and when it is too late , cry out despairingly , as lysimachus did ; o for how small and short a pleasure have i lost a kingdom , for how vain an humour have i passed away heaven . this shall be the portion of these politico's , if they miss temporary disgrace ; which some of them have not done , as in the following words appears , which returns me to the text. sic jezabel sc●leratissima testes duos filios belial , contra naboth in judicio produxit , quo ipse vitam perdidit , & ahab rex ejus vineam possidebat . this clause is quoted out of kings and it hath a notable narrative of an innocent subject oppressed and murthered ; and that not by assassination , but judicially , and according to the preciseness of the appearance of justice ; and three things are narrated in it ; who was the prosecutour , that the text says was iezabel , a woman by sex , and a queen by dignity ; but no honour to either : for it adds , she was sceleratissima : then quomodo , how she brought this artifice about to reach naboth's life , duos filios belial , contra naboth in judicio produxit : thirdly , in quem finem , she did this ; that 's double , first that naboth might die a malefactor , and then that ahab might have his vineyard , as his escheat . iezabel sceleratissima ] this lady was wife to king ahab , a woman of a busie humour , and masculine spirit , as appears in the impiety of her life , and the tragickness of her counsel , whom satan ( of all her sex ) culled out , as the most accommodate engine for seduction and cruelty , that the world in her time , or in any time after incarnate had . in allusion to which , the holy ghost charges upon the church of thyatira , that she suffered the woman iezabel to teach , and to seduce his servants to commit fornication : the allusion being to this very woman , who because she was a sidonian , and a worshipper of baal , brought in the worship of baal into israel , and stirred up her husband to prosecute the prophets of god , whom by his authority she is said to cut off . now this woman being so tart and subtle , whom nothing would content , but tyranny in the state , as well as idolatry in the church , having always in her mouth that of caracalla's mother-in-law , imperatores dare leges non accipere , and willing her husband should rule over , rather then rule by the law , is here termed by the text sceleratissima . sceleratissima ] not as an epethite of dedecoration to women , the most tender , delicate , delectable , obliging ; yea , the onely phoenix part of the creation ; that which the father of men , innocent adam , upon god's first presentation of eve , termed bone of his bone , and flesh of his flesh , himself in another , and i had almost said better sex ; and ever since his sons and male-posterity have , when they have done manlily , and virtuously , doted on . no such opprob●y then is our text-master guilty of : nor were he would his commentator suffer such his mistake , if he could be guilty of it , to go uncorrected . so much a valuer am i of that incomparable sex , in gratitude to those excellent pair of virtues which once in that sex i successively could have called mine own and the memory of the last of which , i shall mournfully carry to my grave , as the she , whose person alive was my delight ; and her memory , now dead , my joy to have had , and my grief to have lost . i say no such epethite has the woman here in the text for her sex sake ; for that has produced matchless heroicks , divine prophetesses , seraphique illuminates , perspicacious oracles , harmonious syrens , what not , that has been heaven on earth , spirit in flesh , merit in mortality , as the authours that have honoured themselves with treating on them , have abundantly evinced . but she is by our chancellour called so , as she is degenerated ; of sweet become sowr , and of gentle and soft , perverted by satan into a turbulency and bloudiness of nature . as she is another ¶ tullia , messalina , and another (a) constantia , whose influences are to confirm in evil , not withdraw from it . this lady so ingeniously savage , and zealously terrible in the designs of her mind , and execution of her ministers , is by our text called sceleratissima . sceleratus in quo scelus sit constitutum , sed commissum , saith donatus . tully couples impurus with sceleratus ; and if in the positive the word be so significant , what degree doth the superlative import ? surely no less , then that she was nequitiae antesignanus ; or as the holy ghost brands her , when he says , ahab sold himself to do wickedness . he adds , whom iezabel his wife stirred up , and made the cause of multiplyed mischiefs . for this sex , as in its integrity , 't is the womb of all sweetness and tractability ; and not onely civility , but also christianity , has been ushered in to nations by their fair hands , and at their influential intreaty : so in the degeneration of these , are the darkest nights of turpitude , and the deepest woads of malice tinctured . we say there is no murther , but a woman is in the company of it ; and when all the instances of a cruel she were lost , one might draw the portraicture of it most livelily from this sceleratissima here , who like that aetolique woman in plutarch , was as cruel as if she had accompanied with a dragon , from whom she learned all truculency . for she was not onely an active and busie-spirited lady in discourse and influence on every person , and every thing , but she was one that thought her wit more regal , then that of her husband-soveraign ; whom when she sees dejected , because modestly denied , what earnestly he desired , she caresses increpatorily , art thou my lord ahab , quoth she , a king , and wilt thou be denied ? is there any thing that israel has , which israel's monarch shall not command . let me but use thy name , and thou shalt have thy pleasure , and make the contrarients to thee pay dear for their insolence . do but now , my dear , own me , and i 'le fetch the vineyard and his life with a vengeance that holds it against thee . has thou his lord and master asked it on exchange or purchase ? and gives he thee no better answer , then a god forbid , that i should sell the inheritance of my fathers ; a law indeed good against private persons , but not against the king , whom , because he knew not how to obey , he shall ere long be ruin'd by . this is the sum of her speech and design . but this is but the apertura to her wickedness : that which confirms all she does , is the king's seal , with which she seals letters to the elders or heads of iezreel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the candidates or nobles that were clad in white . for so of old they were ( white being a token of dignity . ) to whom , so soon as the regal mandate comes , all obedience is given . and so naboth enters on danger by a wicked woman , wickedly designing her revenge in his ruine . so are the words , testes duo filios belial contra naboth in judicio produxit . a formal trial it must be , and but formal ; for naboth's vineyard had made him criminal before accused , and iezabel's malice condemned him before found guilty ; witnesses there must be , and two ; three iosephus will have , which grotius says was usual upon a person of note , as naboth was : but alas , they are loose profligate men , that know not what they ought , nor care not what they do swear ; something they must depose to convict him , and they boggle at nothing iezabel will put them upon . these ruffians and monsters that defie all conscience , seducers , deut. . . sam. . . men of violence and hubbub , judg. . . chap . . of uncleanness and beastly ignorance , sam. . . despisers of god and his appointments , sam. . . churlish and rude monsters , sam. . . sam. . . these are the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the men at large , that say their tongues are their own ; these are the witnesses . and they are said , in judicio produci ; because they , in due form of laws , as the pretence was , do accuse and evidence against naboth . the word witness , comes from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 depredari & expoliari ; not to right him , if justice he had on his side ; but to spoil him of his life and fortune . 't was before such a high-court of justice , as david the king complained of , psal. . . the bands of the wicked 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 have robbed me . but rabbi himmanuel reads it , dolores impiorum , id est , quibus me officiunt impii , expoliaverunt me boni● mundi . for what iezabel had contrived , these were to make oath of , and that with boldness , and in affront of naboth's innocence ; for so our text says , they were produced , contra naboth in judicio . and that not to fine and imprison him , as a man disaffected to ahab , and as one who was rustiquely stubborn , and contumacious to majesty ; but as a miscreant , neither fearing god , nor regarding the king. for of blasphemy against both they do accuse him , and such by oath make good against him ; and thereby that of our text is confirmed . quo ipse vitam perdidit & achab rex ejus vineam possidchat . iezabel gave the counsel , to falsly impeach him , and by witnesses of ratification to sentence him ; so is the holy text , ver . . and therefore the murther of naboth is attributed to iezabel ; god saw she made use of her husbands name to colour her violence and oppression . and he that hates wickedness , though he suffered it for a while to prevail ; yet punished it throughly on the injurer . it 's true naboth lost his life , for blasphemy was ever capital , lev. . , . and that the sons of belial witnessed against him , and to entitle the king to the vineyard of him , when in law defunct they depose also his blasphemy against the king , which being made good , for the blasphemy against the king , is a blasphemy against god , ( whose vicars kings are , and by hos●●e power they raign ) all naboth had becomes forfeit and seizable into the king's hands , as escheated to him , since capital offences corrupt bloud , and leave no heir , but are casualties to the crown . thus is naboth ruined in person and possession , and that by iezabel , who may well be termed a woman , labouring with an infirmity of bloud , not in the gospels sense , but in a worse sense , prae gravitate peccati de orsum ●ergentem , & depressam , as nicet in nazianzen comments on that of the gospel ; a woman who had no temper ; no compassion in her , but was made up of fulminating and fiery principles , thinking power not worth the having , if it might be in any thing capitulated with or denied ; wherein by the law of its own constitution it denies it self ; and those not worthy to live , who would live happier then tyranny would allow them to do . so true is that of tacitus , trucidare , rapere , falsis nominibus imperium appellant . but alas ! fond lady that she was , who spur'd ahab to such cruelty : better be no king , then a king of terrour and trucidation , better have no desire gratified , then to have it by the spoils of innocence , and the preys of cruelty , as domitian had , and as ahab here had ; for which god fore-told a plague on him , her , and their family , and that of extirpation and death , even in this very portion , that thus injuriously was evicted from naboth , v. , & . of the kings and fulfilled by iehu god's executor , kings . so true is that of the poet , de malè quaesitis vix gaudet tertiushaeres . sic duorum etiam iudicum testimonio , mortua fuisset pro adulterio uxor castissima su●●nna , si non ea● miraculose liberasset dominus inexcogitabili prudentia quam à ●atura non habuit puer junior non dum aetate provectus . this instance is out of that part of apocrypha , entituled susanna ; which though some prefix to daniel's prophecy , upon design probably to impair the credit of the canon , by adjunction of somewhat to it , dubious : yet others , as our late reverend translators also , set this history apart , from the beginning of daniel , because it is not in the hebrew . our chancellour here uses it , to make good this charge against two witnesses , where no other circumstances or presumptions are admitted , to invalidate the testimony of that number , and where it is maliciously contrived ; and as in the former quotation he discovered two witnesses , suborned by a lend woman , against an innocent man ; so here he alleadges one chaste woman , accused by two leud men , and like to die upon their false testimony . the story has many passages in it , opprobrious to vicious and caytiff old age , laudative of chast and innocent youth , attributive of the miraculous detection of both , by god , who onely judgeth righteously . the persons concerned in this story , are of three sorts ; the contrivers of the plot , those are ver . said to be the two elders : the person against whom the plot is contrived , that is against susanna : the conviction of the false evidence , and accusation of the elders , by the wisdom and integrity of one more righteous then those , whose spirit , though a youth , god stirred up to discover the impostry , v. . duorum senum etiam iudicum testimonie ] two for number to make the testimony legal , elders by quality to make it credible , and pass unsuspected : of the number two , i have written heretofore , and now shall onely touch their quality senum etiam iudicium ) in the fifth verse 't is said , there were appointed two of the ancients of the people to be iudges , where ancients or elders do not alwayes signifie such in years but mostly men of dignity , place , power , worship and wisdom who are said to be seniores , quia presumuntur esse saniores : thus the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 coming from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 barba , signifies a man of years ; because such usually are bearded , and wore it very long , as yet persons of degree do in the eastern countreys , and anciently did with us here ; yet it also , and ordinarily denotes place and respect , so gen. . verse the seventh ioseph went up to bury his father , and with him went up 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the elders of his house and the elders of the ●and . the elders were the peers , heads of tribes and leading men of the land , by reason whereof in all great affairs they were consulted with , hence those scriptures ioel . . ruth . . exod. . , c. v. . lam. . . and others in all which the elders were sine qua non's to all affairs of import . the greeks called these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is the cause the read 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by it and suidas terms 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and hence was it , that when the expressed any one of ancient extract and noble quality , they termed him by this word . thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , one that was so disposed to publick spiritedness , that he with codrus spend and be spent for it , thus xenophon takes the word , and thus the term presbyter is attributed to the consummate order of ministery called priesthood , which we know is conferrable on men of thirty years old or under , which is no old age , though i confess , more usually 't is taken for men of good and great years , and as a notation of antiquity ; and plutarch uses the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : so in those words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and philo , when he calls the fire 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and so i take the phrase here to intend that like , as v. . wickedness is said by god to come from babylon , from antient judges , who seemed to govern the people . so here were two antient judges , alder men , not in the saxon sense , men chiefly of wisdom ; but in the scripture sense , men of years , old enough to be wiser and honester , then herein they proved themselves , since age is chiefly honourable , ● when it is found in the way of righteousness . which it was not , god-wot , in the persos projecting these villanies ; for though god had weakned nature in them , and they were rather like deserted castles , monuments of nature's declension ; though the sun , and the moon , and the stars , were darkned in them , though the keepers of the house trembled , and the strong men bowed themselves in them , and all those juvenile ornaments , which by ages assault , do suffer eclipse , were on them , as the description of solomon elegantly sets it forth ; yet are these fully set on fire by the lust of their minds , and the turpitude of their speculative lubricity , to attempt that on the chast person of susanna , which was vild and vicious in men of youth , and roysters of deboistness , but in aged and judicial gravity is abominable , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a wicked old man , as a worn out light , is good for nothing , said plutarch : yet where youth has been villainous and deboist , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. custom in sin has made even the winter of old age bud afresh with lustful blossoms ; though they have been incalid , and so not arrived to any perfection of naughtiness active ; yet have they been the same sins before god , as if acted , and greater too ; because fore-thought , and applyed to , by all the experience and counsel many years life administers to . for then onely are men of old age worthy reverence , when exemplarily , and not to the scandal and seduction of youth they demean them ; which if they do not , they are the more ridiculous and absurd , as were the elders here , who plotted against susanna : and thereby not onely sinned against god , their office , their years ; but also did a folly like him in seneca , who did exactâ viâ viaticum quaerere , which erasmus wittily applyes to old age's covetousness ; which the less time it has to live , the more solicitous it is to provide to live . and i apply to lust , and carnal follies , which had the same fatuity in the raign of these besotted and luxurious elders , who plotted the execution of their villany on a chast woman , and worthy wife susanna , who is the second person in this story . vxor castissima susanna ] three words of our text pointing out her persons name , her minds virtue , her relation and state of life . concerning names , to write at large , would be endless ; divers authours have purposely done it , and somewhat i have touched of it in the introduction to this comment ; that names were used ever , and are at this day every where , is plain ; and that by the wisdom of the humane nature , to distinguish persons and things , and to nourish order , converse , and society , is plain also . and i suppose , as plain it is , that susanna is not an heb but a greek , or exotique name . there is in all scripture but once besides here mention of it , and that is luke . . where amongst those women , that had been healed of evil spirits and infirmities , susanna is one ; by which i may conjecture , that as probably the name was given to persons of excellency , and bodily beauty ; so were such named persons , troubled with impure solicitations , the usual temptation and attendant of rarity and transcendency . and if they are not injured by , and prevailed on from those subdulous and captivating insinuations , 't is by miracle of mercy , that reserves them to their future conspicuity , as in the case of the two susanna's , the first whereof is the she of our text , who is set forth in the story of her to be fair , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a beauty , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , saith suidas , to have no disproportion in her . hence the septuagint render that place , ( god saw every thing that he had made , and behold it was good , ) by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , it was such as answered the perfection of its kind . that then in susannah , here termed good or fair , is a beauty of body and gate , of speech and utterance ; a jewel she was in flesh , and one that feared god , and as a chast wife , made her husband the covering of her eyes . vxor castissima ] as she was honestly born , the daughter of chilchias , and virtuously bred , ver . . taught according to the law of moses : so was she wealthily married to ioachim , a very rich and hospitable man in babylon . and as to him , she was obliged by vow ; so to him did she keep by resolution , and from him could she not turn , without blemish to her virtue , and loss to her happiness , for he was more honourable then all others , v. . these charms notwithstanding on her , their lust endeavours to entice her to avoid ; and that by such occult & dexterous methods of design , as were propitious to their end , and but for the impediment of a miracle could not but succeed . first , they consider what she takes pleasure in , and mostly frequents as her retreat of safety and pleasure , her husband's garden ; and there , iews as they were , they would have made the sepulchre of her modesty . there where the senses are most pleased and satiated with the favour of scents , and the sight of colours , the melody of birds , the tast of fruits ; there , where are shades against heat , and springs to relieve thirst , and retreats for contemplation ; there , are the lyers in wait to work mischief ; as our lord had the bloudy agony in the garden : so had susanna her tryal in the garden . and secondly so impudent are these var●ets , that though the garden were near the house , and in the close view of her husband ; yet there would they have rap'd the onely lovely flower of his garden , his susanna . as no fear of god , or love of the husband ; so no prudence perswades them to choose another place , then that , which they thought least suspected , because adjoyning to the house . oh the impudence of vain desire ! it hurries men of age and wisdom into actions of folly and madness : no sampsons of fortitude , no david of piety , no solomon of wisdom , but lyes open to the temptation of his flesh . if he give way to its wander , and foster its suggestion . oh danger ! thou attempt us from all quarters ; from men of high and low degree ; from things lawful , abus'd ; unlawful , used . thou art on the earth of covetousness , in the air of ambition , upon the waters of tumult , with the fire of lust , in our beds of pleasure , in our shops of profit , in our studies of learning , on our benches of justice , in our fields of labour , in our journeys of business , in our pleasures of retreat , in our assemblies of devotion . thirdly , this fact was aggravated , by the advantage they took of her constant hours , as well as place to walk in , ver . . they saw her go in every day . because use creates delight , satan watches to take us napping where our delights are , and if he cannot one day , hopes another to prevail : so did he use potiphar's wife , to subvert ioseph's continence , gen. . . she spake to him day by day , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , dietim , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the word here . poor soul ! she took the garden to prevent temptation , and there she finds it ; she walked there to see no body with desire inconsistent with chastity , and a wively fidelity , and there she is lustfully looked upon , and tempted to be made unchast . oh! how studious ought we to be to please god , that being at peace with him , he may direct our paths , and keep evil from us , since our ruines are so often involved in our contents . how careful ought we to be to prevent evil , by denying the occasions of it , who are so watched by , and so stollen upon , by the many disguises of its avenue . if a light dress , and a loose gate , and a bright active eye ; let hamor lose upon dinah , and the harmless disports of marriage seen by others , then the marryed enjoyers of them provoke abimelech to attempt sarah , whom thence he thought provable the same to any courtier as to her abraham . if caesar's wife prostituted her name by intuition of onely pictur'd naked men ; and if david's eye lost him body and soul in the lust of bathsheba , and the murther of uriah , how much care ought to associate our repasts , and the least appearances of us ; considering , that the frequency of susannah's repair to her husbands garden to walk , prov'd an occasion of their des●gn on her there . fourthly , their lust was aggravated in the combination and unity of it , v. . they made one joynt stock of counsel , and to one purpose of action . wickedness knows union carries on all enterprises , and therefore it 's ever for agreement and conjunction . the kings of the earth are said to set themselves and the rulers to take counsel together against the lord , and against his anointed , psal. . and by this that of iob is true of these leviathans ; one is so near to another , that no air can come between them . they are joyned one to another , they stick together that they cannot be sundered . thus they conduct their designs to their issue , fortiter & suaviter . no eye , as they think , seeing ; no tongue censuring them . and if they fail of that , and discerned they be ; then by their union are they more plausible in their defence , more pardonable they think in their guilt : as many hands make quit riddance , so many heads form deep counsel : then they machinate how to put a creditable gloss on their putidness . o how glad are these misereants of a zoar , though it be but a fig-leav'd palliado . thus hectorean madness , they call generous valour ; absalomish treason , high-metled discontent ; tarquinian lust , kindness of nature ; and high-bred civility , solomonique lubricity , a spring-tide of reason , covetous to know infinity of objects : and to this the unity of sinners inclining them , makes their union destructive to god and a good consciences interest in us . fifthly , their lust was aggravated by the effrontery of it ; they come upon her not with pyrates colours , not with the soft and modest pretensions that win on credulity , and steal under the vizards of kindness , the monsters of lust ; but rush open-mouth'd , like beasts of prey that are in haft , and must do what they do on the suddain , v. . we are in love with thee , lye with us . o courtless rudeness ! o mercyful mistake ! by which they were prevented to win , whom they were resolved to ruine . o the mercy of god , that guards innocence ! by its assault reversed , and its temptation disarm'd ; because they were not ashamed , when they endeavoured these abominations , therefore god counter-courted them , and undermin'd their machination . if the lord be on his susanna's side , she need not fear what men , old in sin and counsel , can plot , to act against her . sixthly , their sin was aggravated by the reserve of their malicious revenge , in case of her consent denied , and their plot defeated , v. . if thou wilt not , we will bear witness against thee , that a young man was with thee , v. . and therefore thou didst send away thy maids from thee . lo the true character of lust , mischief in the act , & no less in the defeat . ¶ the most deplorable confirmation of this is from the horrid project of one la-mot , who being an ensign , pretended love to a virgin in metz in france , entices her by an old woman , he employed , to frequent his company , he gets her into a prison , and there ravishes her , her parents running up and down bewailing themselves for her : the governours finding her not by search , sent for the captain of the souldiery , thinking some of them might have got her , and commanded them to deliver her untouched . when thus they were charged , mot the ravisher stood by trembling , but not discovered . when he saw , if he should restore her , she would appear ravished , he meditated , to hinder the discovery by murthering her , and that he does ; and that done , cuts the body in pieces , puts it in a sack , and casts it into the next river . behold ! the bloudy event of lust ! nor much unlike was that intended by the elders . what defence has innocence against calumny : poor soul ! she innocently went to cool her self in the water of her husbands garden ; out she sends her maids , probably not having confidence enough to be seen naked by her own sex , whom she seen , could have been but the reflex of their own bodies , shut they must after them the doors , that no one may enter , but she alone may be private ; this was her chast care , this her innocuous modesty , and sincere zeal to her ioachim . but see how all this is by malice and intended rape frustrated of its purpose on her , turned as they think to her disadvantage . they misrepresent her sending away the maids , and shutting the doors , to be in favour to the courtship of a young man appointed by her , and concealed there , to enjoy her by their furtherance , and under the umbrage of those contrivances ; and they not onely vow to detect , but to depose it in all the circumstances . this is the carriage of the elders , to subvert her chastity , and loosen her confidence to , and interest in her husband . but honest soul and wife as she was , she trusted in god for the right of her wrong , and the asserter of her innocence ; no amazonian raving , or masculine indignation , shews she to them ; no lucretian violence to her self ; no forcible entry makes she on her tender skin , through her veins to her bloud ; nor did she with a iael-like fortitude dissemble her anger , till she had them under the perpendicular of her fatal revenge ; she did not endeavour her defence by arguments impotent to it , weeping without calling out , and wailing without resolving their defiance , like that great person the story tells us of , who pretended a surprise ; but when she was taken away , and the lords of the nation sent her word , that if she were surprised , they would come with an army and set her free . she answered , that it was against her will that she was brought thither ; but that since her coming , she had been used so courteously , as she would not remember any more that injury . no such actor of a part was susanna ; too modest and well-meaning was she to express these fasts and looses , which are rarely the figures of any thing better then falshood and wantonness ; but she trusts to the alarum of her innocence , which she knew god would take , who was all ear and eye ; though her husband at that distance could be neither to her rescue , and aloud she cryes , and so do the elders to drown'd her poor soul ! what a straight was she in , whose modesty in assenting , or life in denial , were at stake , or at least must be candidates to the judgment of the law and the charity of her neighbours . but god gave her as well the wisdom to choose to suffer innocently , as the courage to defie the temptation to sin bravely ; consent she will not , but put the issue on god she will , and does ; and the guilty elders amazed and discouraged , recede from tempting , and apply themselves to defamation of her , as their inchantress and the contriver of their seduction ; elders they were in years , judges by place ; and to be accused by such persons , was too much for ought to contest with , that had not liv'd unsuspected ; but susanna being such , as no report of ill had passed upon , was the more comforted under her impeachment : yet as guiltless as she was , the law must pass on her , the two elders depose stoutly and falsly against her , and sentence passed on her as guilty , and to execution she was leading . god who had all this while permitted the progress of this mischief , for the greater defeat of it when it was discovered miraculously ( as says the story ) raised up the spirit of a young man called daniel , to improbate this testimony , and by cross interrogation to denude the impostery of it , ver . . and so forward . and then susanna , and the elders change turns in the bail-dock , and that divine endowment that was by miracle fermented in him , takes to task those hellish sophisters , whose artifice it was , both to be tempters to sin , and accusers for sin . thus much of the elders , and their false testimony , which had took effect , if somewhat had not interposed ; which the text thus phrases , viz. si non eam miraculosè liberâsset dominus inexcogitabile prudentiâ , quam à natura non habuit puer junior . here our chancellour ascribes the patronage of innocence to god alone , whose the peculiar care and love of truth is , and who by a wonder of mercy and power does dissipate the contrivances of wickedness , and provide salvation for walls and bulwarks . for though our master well knew , that daniel , whom tradition and general consent makes the young man here , was magically and astrologically instituted . i hope i may use those phrases without offence ; because i suppose those words , skilful in all wisdom , and cunning in knowledge , and understanding science , whom they might teach the learning and tongue of the chaldeans , dan. . . import so much . though i say he knew daniel ten times better then all the magicians and astrologers , even in their own art ; yet does he piously ascribe this heroiqueness and divine spirit in him , to the special efflux of god's spirit on him , who had qualified him signally for this service above , and beyond the possible attainment of his years , or the extent and energy of his breeding ; which i the rather note , because many atheistique minds , and bold asserters of natural causes and the influences of them , are not content to publish the great and mysterious operations of nature , and to reduce every thing to her norm ; but to detract from the extraordinary instigation and assistance of god. which though i believe not to be in the bravado's and mad frenzies of giddy enthusiasts , and sanguine phanatiques ; yet i doubt not but to be in very notable degrees on the spirits of all great and good actors , and to appear in their grave and orderly actings ; yea , and as god does sometimes permit an evil spirit from him to kindle great and grievous flames , as his execution on sinful nations : so does he by a mercy of miracle , rouz up the souls and senses of instruments proper for him , to assist and effect his purpose , in his time , according to his instinct on them . and therefore , though some holy , or rather some unholy pyrats , when they would subvert the faith of god's elect , hang out false colours , pretend scripture , revelation , spirit , impulse from god to do deeds of darkness , derogatory to the pure god , and to the peaceable gospel ; yet are there holy and serious impulsions on men , which i doubt not to aver , to have the image and superscription of god on them . and that because nothing but the finger of god can inscribe them with the perfection and to the prevalence they arrive at . this was in ioseph , when he was presented to pharoah's favour , which he so merited by his discretion and wisdom of carriage , that pharoah calls the spirit of god in him , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 not onely one in whom the spirit of god , but ( with reverence be it written ) the will , and as it were a part or angle of god , is ; that is , in whom is an excellency of spirit to discern , and of will to discover what he knows , good for men to do , or evil for them to avoid : so is to be understood those passages in scripture , which entitle god to mens extraordinary endowments , and make them that have them , eminent in their times . so it s applyed to bezaleel , exod. . . chap. . . so to moses , numb . . . and to caleb , numb . . . to ioshuah , chap. . . so to our lord christ , isa. . . by this spirit god came on balaam , and made him prophecy , numb . . , . by this made othniel deliver israel , iudg. . . iephtha , chap. . v. . sampson , chap. . ver . last . by this david was enabled to his royal office , sam. . . yea , by this ( i believe ) is god with his haereditary apostles in the order of ministry , whereby he casts down the strong holds of satan , and notwithstanding the mighty oppositions of the world , accomplishes the number of his elect. to which , alas the foolishness of preaching , and the frailty of those earthen vessels , in which the treasures of wisdom and knowledge are conveyed , would be but despicable means , if they were not made mighty by god , and by his spirit and co-operation pointed for , and prevalent to those ends . nor do i think they are ceased wholly in the last ages of the world ; but that god upon sundry occasions , stirs up the spirits of men to great works , and makes them fortunate and prophetique in them . and that not onely as they may by the divination of experience , fore-see and fore-warn danger , and be directed in the seasonable preparation for it ; but as they may be awakened by god to know and fore-see ; and by being armed and fronted with courage , to despise discouragements , and encounter with seeming impossibilities . thus god stirred up the spirit of athanasius , and st. augustine , against the arians , donatists , and novatians , who had prevailed over catholicism . thus god raised the spirit of our bradwardine against the pelagians ; of wickliff and luther against popery ; and thus he stirred up the spirit of our reformers , not onely the kings , the nobles , and the commons in parliament , to reform religion , but to inable the father-bishops , & presbyters of our mother-church , and other learned men of this realm , to contrive a form of service for the church : concerning which the words of the statute are , the which at this time , by the aid of the holy ghost , with one uniform agreement is of them concluded , set forth , &c. a very godly order , agreeable to the word of god , and the primitive church , very comfortable to all good people , desiring to live in christian conversation , and most profitable to the affairs of this realm ; as the judgment of parliament is in the fifth and sixth of the same king , c. . i say this book so framed and owned , by so wise and religious parliaments , yet god stirred up a contrary spirit to defame and extrude ; which spirit , notwithstanding its fierceness long continued not , but another spirit came on the nation stirred up by god , and cast out that spirit , and censured the rejection of that book , as a great decay of the due honour of god , and discomfort to the professour's of the truth of christ's religion ; the first eliz. c. . says so expresly ; and the . eliz. c. . calls it , a godly and virtuous book . and as god raised up the spirit of the builders of ierusalem in ezra's time , and the spirit of the king of the medes against babylon ; so god raised up the spirit of queen elizabeth , and all our monarchs since her , to deliver the people of england from danger of war and oppression both of bodies by tyrannie , and of conscience by superstition with liberty both of bodies and minds . they are the words of authority ; yea , and when an evil spirit came from the lord upon this nation , to divide and scatter it ; and we were all like water cast upon the ground , that could not ( without a miracle ) be gathered up again : even then when the fury of war fanned us , and the wind of animosity , rage , and unfixedness , was carrying us away , then the lord opened rivers in high places , & fountains in the midst of the vallies ; then he gave the nation his eye-salve , that they should look upon him whom they had pierced ; then he put courage into the matchless memorable general and parliament then sitting , to beseech our absent ¶ pylot to commiserate our naufrage ; then he by a miracle , second to none in any time or story , planted in our wilderness the cedar , the shittath-tree , and the myrtle-tree , and the oyl-tree ; that is , the king ( not onely the highest cedar for altitude , but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the cedar for excellency . for so that shittah signifies , for its wood is lignum imputribile nitore & pulchritudine facile caetera superans ; of which the ark of the covenant , the tabernacle , and all the vessels of them were made . ) this cedar of affliction and circuit , who was exposed to prey and contempt , when he was off his majestique mountain , did god , notwithstanding the * ordinance to the contrary , which god concurred not in , refix , and with him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the lords , whose reduction into their orb , wherein they with the myrtle , do strengthen and assist the crown , and keep evil from it , makes good that prophecy of gods to his church , esay . last ; instead of the thorn shall come up the fir-tree ; and instead of the bryar shall come up the myrtle-tree ; yea , and with them the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the wood of the olive ; that which not onely flourished , but that which is arid and cut off : so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifies ; and it admirably answers the expansion of the mercy . god brought to life not onely the lords , whose house was wholly voted down ; but even those commoners , members of the then voters , who were secluded , and by their prevailing fellows cut off and cast out . and by this mercy to the pia mater of our order , lustre , and grandeur , has deserved of us everlasting eulogies ; and what exceeds vocal , vital doxologies . and oh that god would once more stir up the spirit of this nation , not to animosity , dissention , disloyalty : no ( god forbid that evil spirit from the lord should penally burry england any more ; we have too fatally felt the fruits of intestine war , to return ( i hope ) again to that folly and ferocity ; ) but the spirit of humility , moderation , charity , this spirit stirred up by god , would sedate our spirits in our own , and inflame them onely in god's quarrel , with those regnant sins that are in their tendency and pride deicidiall : such adders are we to the loud voice of that never to be forgotten miracle and mercy , of the of may , . that nothing seems less to be heeded , then the stupendiousness , and almost incredible transcendency of it . but lord lay not this sinne to our charge , our deliverance is as it were dead and buried ; and since no man regardeth the work of the lord , nor the operation of his hands , how just may it be , that god's whirlwind should go forth with fury , continuing whirlmind , and should fall with pain upon the head of us wicked ones . like as his judgement did in a good measure on the wicked elders here in the text , who maliciously combining against innocent susanna , were by the spirit of daniel excited by god to discover their impostry , denuded ; and as false witnesses , and perjurious villains put to death , & that lege talionis . for as they would have brought susanna to the flames , which amongst the chaldees was the punishment of adultery , ( for grotius says the iews had there no exercise of their national civil polity , but were adjudged by the topique laws of babylon ) though the verse of the story sayes , they put them to death , according to the law of moses ; which is most probable , and so understood by our text-master , who thereupon brings in the lex talionis , according to the prescript of god by moses , deut. . v. . so did they by that machination cusnare themselves , and remain an eternal shame to lewd and treacherous elders . but enough of them , i return to the text. nosti & tu princeps divine qualiter jam tarde , magister johannes fringe , post quam annis tribus sacer dotali functus est officio , duorum iniquorum depositione , qui cum antea juvenculam quandam affidasse testati sunt , sacrum presbyteratus ordinem relinquere compulsus est , & matrimonium cum faemina illa consummare . in this clause he does not onely bespeak the prince's attention , by a compellation of highness that he owns in him , and a duty thereupon , that he knows he and all men ought to testifie in word and deed towards him ; but to this divine prince , produces a ternary of instances , wherein the mouthes of two witnesses have been wickedly produced , and made use of to matchless and monstrous villanies . this then is the third instance ; and the person mentioned to be the ingenious contriver of this delinquency is one iohn fringe , of whom , as he is here charactred , no either english or latine story , that has come to my view , makes mention ; probably either because what he did was in the time of combustion in england , when many things passed in the crowd unnoticed ; or else because it was done in france ( especially the treason ) where the prince then lay an exile hence . that there was a truth in it is not to be questioned , but the circumstances i cannot supply , nor cloath this naked narrative with such varieties of art and ornament as would make it symmetrious to the other parts of the comment , that which is notizable in it , is first the quality of the person , a priest , and such not onely by the confirmation of his order , but the continuation of him in that confirmation , three years . secondly the degeneration of him from what he ought to have been , but was not , to what he ought not to have been , but was ; gladium perimentis sub pallio consulentis gestabat , he had iudas his heart with iudas his kiss ; he did currere ad sacros ordines sine reverentia , sine consideratione , &c. by all means he would have holy orders ( those entrusts that even angels do admire and adore ) without consideration of that humility and divine zeal that ought to reside in the minde of him that has them and the honour he should pay that honour done him , by a holy life suitable to them ; whereas no man ought to offer himself to those mysteries in whom covetousness reigns , ambition rules , pride rages , iniquity sits , and luxury commands , as saint bernard sayes to the clergy of his time . from this our fringe should have been free , but he was not it seems , but though by order he was sacred to god , yet by devotion of soul he was nothing lesse but like paulus cremensis the pope's legate here , while he was inveighing against the clergy's leachery , himself was taken abed with a common strumpet ; so did our mentioned presbyter , while in his orders he pretended a dedication to god , he in the profusion of his vicious life devoted himself to his mistris , which was his shame and his sin . for though i would be a constantine to him , and referr his case to his last judge , with silence of whatever may be written against him , as reflecting on his order ; yet in as much as the vices of him were flagitious and to the vituperation of him and his profession , to both which they were scandalous ; 't is no breach of charity to follow the text with a commentary as well here as in other parts of it . that then which he is in our text detractingly charged with , is first , that he was libidinous ; and notwithstanding the restraint of orders , and the assiduous seeming continence in them , he did meditate effeminacy ; and to make way to his freedom , contrived the annihilation of his orders . secondly , that to effect it , he plotted to procure and confirmed two in their perjurious resolution , who should depose that which ipso facto if true , as it was not , should dissolve his orders . thirdly , that the sacrilegious combination between him and the witnesses to so execrable an end should not be confessed by him till he came to dye . fourthly , the justice of god in punishing one sin with another , sacriledge with treason , and perjury with perdition . post quàm annis tribus sacerdotali functus est officio . ] as three years were according to some canon , though five as other canons appointed to intercurr between deaconry and priestshood ; so this priest is deposed to consist undetected three years after his presbyterating , not that he was not probably under a hot lubricity before , but because the depositions instructed by him were to commence date thence : sin has gradations , no man is at first bad to the baddest degree ; but first there is levis & pudicus tastus , a virgin blushingnesse as it were , and after more confidence , till at last a confirmed effrontery . no man knows where to stay , that stops not at the first appearances of evil , and does not obviate the pullulations and first glimmerings of them ; let hazael be a warning to all confident presumers , who think themselves not so bad as mercy foretells them to prove , time discovers them to accordingly be ; and peter who when the lord told him he would be the signallest starter from him , made a bold bravado of holy valour ; but by peeping into the high priest's hall , in curiosity to see what became of his lord , was so overtaken with pusillanimity , that he not onely denyed in the palace to the maid that taunted him as a follower of iesus , that he understood not her language , but called them all to witnesse that she mistook him ; v. . but even in the porch when accused by a second maid , he denyed not onely that he was his follower but that he knew him , and forswore both with an oath , v. . yet again when a hotter huy and cry came after him , and more and confidenter suspicions came upon him , to evade them and extricate himself he falls afresh to curse and to swear that so far was he from owning his person and cause , that he knew neither , or would justifie either of them . here was a parum abfuit , to utter abnegation : so probably was it with our priest fringe , at first may be thought to dabb●e with this iuvencula , by a kindness of courtship ; after by the engagement of speculative tu●pitude , pressed her to more familiarity ; thence was provoked to that desire , which to accomplish , neither his orders , or her condition would permit . at last he resolved , being hurried headlong into the torment of lubricity , to quit his orders , rather then to desist his courtship , and he contrives to do it by subornation of witnesses : and thus , as much as in him lay , damned their souls , to be pleasure his own and h●s paramours body . qui eum antea juvenculam quandam affidasse testati sunt . ] the witnesses were two , and those to give legally a testimony of an untruth . he knew there was no discharge of his orders , but causâ professionis ; for the councils of the church were much against marriage of priests , as that which they accounted dangerous , full of incumbrance , derogative from the zeal of men , temptative of them from their studies , and the like . this fringe wickedly takes hold of ; not as he found women , stealers away of the heart and their society scandalous to priesthood , especially those that do blazon their wonts with them , notoriè & publicè , as the words of the council of saltzburg are ; for this had been venial , nay heroique in fringe : but no such motion had he , orders he had taken , and in them long and loosely continued ; and to be quit of them , as too severe reins for his base mind to be restrained by , he contrives a false accusation against himself , and raises up an evil testimony to confirm it , and thereby to occasion his ecclesiastical : censure and deprivation . which was , that before he took orders , he was betrothed to a young woman . and herein he makes himself censurable ; first , of levity , that he took holy orders before he had a setled mind , and had some assurance of that self-denial and humility , that becomes that calling . no man is to rush on that , chiefly as a lift to preserment , o● a relief to necessity of life , or as an occasion to a popular appearance ; the parts and pomps of men are not to be consulted with in this undertaking . the design men have to glorifie god , and the enablement from him to deny themselves , to please him , in a serious , zealous , and painful course of ministry , is the best evidence of fitness , & call , and the hopefullest title to success in it : this had fringe attained to , he would either not have entred into orders ; or when he was in them so long , not so have prophaned them . but if corruption had so prevailed on him , he were better have directly marryed , as saint bernard's counsel was ; and as ¶ aeneas sylvius , after pope pius the second counselled iohn freund , a roman priest , to do ; then thus to contrive a remedy of sin and shame to himself and others : but , poor man ! in a sinful storm he was , and he took the next course his corrupt nature presented him , and that was but a tortuous and tortious one , not onely accusing himself of levity ; but also , secondly , of lubricity , by a predominancy of sinful passion , which made him n●n apte nubere , that is , not marry (a) a grave and decent person , that might keep his piety steddy , and dispose him the more to the sober prosecution of the things of god ; as i am sure fit marriage does beyond all singleness , that has not a very strict gift , and does not abate the edge of nature by low and moderate diet , devout and religious severities , laborious and incessant studies , frequent and intent devotions of soul , evidenced in resolved avoidances of all opportunities of aversation ; i say , and that knowingly , let who of the batchellour-pretenders to seraphiqueness be offended that will , there is no such ordinary help to piety and sanctity in the world , ( the gift of perfect chastity onely excepted , ) as fit marriage is . but this our fringe is willing to be thought not to choose ; for the accusation is , that he did onely affidasse , which is as much , as contract himself in order to marriage , fidem dare , fidei vinculo se connectere , as the canonists say , that is , he fairly promised , that marry her he would ; which affidavit he confirmed by oath ( in which sense , our lawyers call a deposition an affidavit ) that thereby he might not so much assure her of his fidelity , as entitle himself to the command of her upon the presumption and assurance of her , that the marriage was good , in foro dei , and legitimated them to the consent , which they had affidavited between them . this he onely is represented to do , which was no more but the security that men do give each to other for performance of pacts ; as richard the first , and the french king , are said , in propriis personis affidaverunt firmiter & fideliter . iuvenculam quandam ] wisdom , as it is seen in the actions of life , so chiefly in promising what we can and will perform . no man ought to say , what he will not swear , nor swear what is not true ; yet the priest is contented to not onely own himself guilty of affidation to a virgin , ( and probably no pure one , ) according to the deposition of his accusers ; not as a testimony of his sorrow , for his unworthy mind in that holy function , and for his prophane life , notwithstanding his holy vow ; but purely he prostitutes his name and calling , to bring about a disfranchisement , and to procure his vows unvowing . for though charity conjure me to believe , that he confesses that this subornation of witnesses to accuse him , was onely to make way to his marriage ; yet i do verily believe , and i hope not in any degree uncharitably , the sparks that kindled this combustible matter in him , was too intimate conversation with this young woman , whom here our text calls juvencula , a tender and taking creature , florenti atate , not yet sub maritali capistre ; for to such as are fresh and excellent in their kind is this word given . and such he concluding her , meditates the marriage enjoyment of her , though with the violation of his vow , and the abjuration of his profession ; for upon the oath of the witnesses it followed . sacrum presbyteratus ordinem relinquere compulsus est ] that is , the canons of the church being transgressed , as by concubinacy or marriage they are , ( as by the pre-mentioned authorities , with sundry others every where in the tomes of the councils appears ) under the grievous pains of excommunication , and censure of schism and sacriledge , he is to desist not onely from the exercise and benefit as a church-man ; but even ab honore clericuli . which resolution of gregory the seventh , as i take it , being made known by the german bishops , to their clergy , upon their return from the council at rome , so offended them , that they resolved rather to relinquish their benefices , then their wives . so did also the french clergy in pope hildebrand's time ; nor before i think elfrick's time was it ever enjoyned our clergy in england , but long before the contrary practice was legitimated by our councils . in anno . ordained it was , that the wife of a clergy-man should be veiled ; and if they were not , they were without honour from the laity , and to be removed from the church ; and before that anno . deacons were allowed marriage upon their craving it , and yet to continue their ministry ; and so gregory's resolution is to augustine the monk's interrogatory . see more in the marginal quotations . i know in the general council of aenham , anno . calibat is commended to the clergy , and they reproved , for having two or three wives , which least they should prefer to hold before their orders , the council concludes , qui antem ordinis sui regulam abdicaverit , omni cum apud deum tum apud homines gratiâ exuatur ; notwithstanding all which the seculars had their wives , which the stricter or looser clergy called their mynecenae ; probably those we call to this day mincing dames ; for when any one goes lightly , we say , she minces as she goes . but priests had not , nor were permitted to have any women in the house with them , ne eos ad peccandum iliiciant ; notwithstanding all which , the clergy that were not votaries in england did marry , and their issue was legitimate and enjoyed lands ; and this probably was that which moved fringe to be the more eager to marry , because as he knew by discharge of his orders , he might enjoy his iuvencula , his young wife ; so by the marriage his issue should be legitimate . and this was that which made him will the severity of the law upon himself , as it follows . et matrimonium cum faemina illa consummare . ] here is a change , his affidatio being consummated , becomes matrimony , and ●his iuvencula in years , is become famina in state of life ; matrimony is a state of life , which the heathen calls the safest boundary of youth ; and though it be not inhibited priests , neither by the old law , or the gospels sanction , or apostolique authority , but meerly ex statuto ecclesiae , as durand determines , to which agree st. thomas , and others ; yea , though cardinal cajetan confesses , that marriage entred into by a priest is good , and the children legitimate ; and though true it be , that it is the seminary of immortality to mankind , not onely in plutarch's sense , as it peoples the world , and makes a kind of eternity in it , but also as it delivers men from sin , and keeps them by the remedy of it , in the love of god , and practice of virtue , which tends to a heavenly immortality . yet for all this , marriage in priests , is the mark that many ( who may themselves doubt , as well as doubtlesly others do , whether they have any continence above that which is the lowest step to it ) level at , and discharge much more of their malignity and defamation upon it , then becomes sober or religious men to do . but these being answered by a most holy and learned deceased father of our church , much to the honour of the undertaking , and the shame of the opposite tenent , i content my self to forbear ; onely let me ingenuously profess , as i honour highly those seraphique virgin-persons , who in the office of ministery keep single , and notwithstanding it do enjoy that calmness and content in their single life , which is the gift of god , the blessing of continence , & the absence of those provocations that are in virtuous persons troublesome , and in loose scandalous , the probable avoidance of which , being ( in the martyr's words ) honest marriage , i am bold to judge as meet for clergy-men , as for any : and more , for as i perswade my self , the devil more designs to undermine these the eminency of whose calling casts the blacker shade on the conversation unsuitable thereto , and the world greedily appetiting the denigration of their reputation , who are most signal in the fruits of learning and most sacred in the opinion for religions : so do i believe , if there be any help to heaven , next to divine mercy and power , 't is this of marriage , which is the manifesto of them both ; which our mother the church of england , according to the old doctours & authors , says , was instituted of god in paradise , in the time of man's innocency , for a remedy against sin , and to avoid fornication , that such persons that have not the gift of continence might merry , and keep themselves undefiled members of christ's body ; and for the mutual society , help , and comfort , that the one ought to have of the other , both in prosperity , and in adversity . so our church ; whose judgment and favour to the clergy's marriage , i prefer , before the humours of any private opinionists , especially since it is not with any diminution of the just honour and praise of devout chastity and singleness , but in supplement to it , as a refuge to the non-attainers of it , and an honest help to a sacerdotal blamelessness . hear the judgment of the king , nobility , clergy , commonalty in parliament , & . e. . although it were not onely better , for the estimation of priests , and other ministers in the church of god , to live chaste , sole and separate from the company of women and the bond of marriage , &c. yet for as much as the contrary hath rather been seen , and such uncleanness of living , and other great inconveniences , not meet to be rehearsed , have followed of compelled chastity , and of such laws as have prohibited those ( such persons ) the godly use of marriage , it were better and rather to be suffered in the common-wealth , that those which could not contain , should , after the counsel of scripture , live in holy marriage , then feignedly abuse with worse enormity outward chastity , or single life . these are the words of the preamble to that statute , which makes void all laws , prohibiting spiritual persons to marry , who by god's law may marry ; which statute mistaken by some stubborn votaries , who stood more upon blind obedience to the pope , then to the liberty christ had endowed them with ; and choosing rather to truckle to turpitudes , ( i am modest ) quam contra papae mandatum inire matrimonium . i say , some mistaking our church and state 's meaning therein , were so bold , to the high dishonour of almighty god , the dishonour of the king's majesty , and his high court of parliament , and the learned clergy of this realm , who have determined the same ( marriage of priests ) to be most lawful by the law of god , in their convocation , as well by the common assent , as by the subscription of their hands , as the statute words are ; that the state saw great need to make a further act of corroboration and vindication of their meanings , from their injurious glosses ; and thereupon passed the statute and . c. . which though by the first of mary . it was repealed , yet that repeal was repealed by iacob . . and so by that the statute of e. . being in force , the judgment of parliament is for the clergy-mans , continence and singleness , if it may be ; but to avoid inconvenience for his lawful marriage . our fringe then did not amiss to marry , he not having the gift of singleness , and having betrothed himself to a woman , in order to marriage ; for fit it was , that he should perform it ; but that which was faulty in him , was , his dissimulation and sacrilegious contrivance of falshood , with a subornation of witnesses to depose it ; in the complication of which , all the fruits of the flesh , which make up the deadly sins , and oppose themselves to the cardinal virtues are visible . but i pass to what succeeds . cum qua post quam annos . moratus , sobolem septimam suscitaverat demum de crimine laesae majestatis in tuam celsatudinem conjurato convictus subornatos fuisse testes illos , et falsum dixisse testimonium in mortis suae articulo coram omni populo fassus est . this clause declares gods vengeance on the first sin by the second , and the consequence of it ; the patience of god had long been provoked , and the mistaken pleasure of his ( as some think ) apostasie as well as leachery , were for a long time permitted him , not for an earnest of impunity , but to shew him the obduration of his heart , and to tell the world that there is no man so perfect but may slip , none so peccant but ought to amend and return to his loyalty by prayer and penance , to pardon and acceptation . yet for all this fringe recollects not , but as one swallowed up in the pleasures of his wife , and the prebends of his marriage , persists in impenitence not onely one year as did david , but fourteen years , and all perhaps to maintain his young wife . thus did fava , who having a wife , children , and family , and being unable to subsist by honest means , entred upon the most notable cheats that ever was ; and when he was detected , and judgment passed on him , poysoned himself to avoid the shame . so did mussardus , a valiant man in picardy , during the combustions in france , who because in peace he could not live so high , as he was wont , falls to ill courses to maintain himself . first , he kills a gentleman his neighbour ; then despises the king's mercy , takes a castle ; and when he and his partizans could defend it no longer , they shot one another , and were burned in the straw they had environed themselvs with to that desperate purpose . so also our fringe was so far from being mindfull of his misacquirement of his wife , that he more doted on her , and on his issue by her , then divined the abbreviation of his life and happiness , by a treason which should determine both , and leave them corrupt in bloud , and poor in condition . so just is god , that though he seemes to permit the inordinacy of men's desires in the manner and measure they propose them to take effect , though their projects be what they would have them , and their prosperity what they can most secondarily wish , yet at last they determine , one corellius rufus who had a good conscience , a good fame great authority , a wife , daughters , nephews , sisters , all good and with them good friends is enough for an age , most men have the contrary , or at best but viciffitudes , yet god has left some instances of it , that men might seek to , and serve him who can curse and bless whom he pleaseth , and not alwayes suffers it to succeed virtue and industry least it should be ascribed as a fruit and consectary of them , and not a blessing of his he it is that fortunates some families and eclipses others , that makes some worthy men obscure , and other worthless once eminent , he it is that inclines the hearts of queen elizabeth's , to stoop for her cecils sake , that would not stoop for the king of spaine's sake . the onely way then to prosper , is to procure god our aide , and to preserve him our ortion , which they will never do that make lyes their refuge , and that work by il and mischievous engines . if men would be rid of their faustina's as anteninus couldl have been contented to be , they must reddere dotem , vomit up all their ill getting by them , god will not clear the soul of guilt , that does not part with all that is sacrilegious , a depredation on his son's purchase , which if fring here had done , he might have been a longer liver with his wife and children , for some blessings his marriage had , which no wise and worthy man can chuse but value , as first a larg● time of continuance years , time enough to make a man comptus & moratus , well trained and throughly polished , and assueted to the nature and temper of marriage , that 's the oratours sense of moraetus , though our chancellour use it as a term of duration for commoratus ( the noun being mostly taken in the former sense , and the verb morari denoting stay ; so virgil long â ambage aliquem morari ; and pliny nè pluribus moramur in re confessâ and pomponius uses moraeri apud aliquem , vel cum aliquo , to stay with any one , morari solutionem , or praesidium , to defer payment or aid . ) in this sense fringe had more happiness then many most excellent husbands , and high valuers of their wives have had . who though they both prayed for , and delighted in the enjoyment of them , yet had them taken from them , in much shorter time then our priest held his . besides , secondly , he had children , which the wise man calls the gift of the lord , and the fruit of the womb , his delight , and these he had not sparingly , but in number , and in that sacred . number seven , which of all numbers the ancients thought most divine ; for though all numbers being adjutants to memory , are ascribed to the invention of minerva , ( quasi quaedam meminerva , which minerva , they say was de capite iovis nata , and therefore they ascribe all parts of ingeny to it ; ¶ as to counsel well , to judge rightly , and to do justly , ) i say , though all numbers thus devised , and for this purpose intended are useful ; yet some certain ones were more cabalistique , and esteemed chryptick then others were . pythagoras valued the number three , because sacrated to hecate , who was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . others think he did it upon other grounds , also to apollo the number three was devoted , as to venus , and in scripture as i have heretofore noted ; but this is the onely number conducing to the life and body of man , hence probably is that of the civilians from the phisitians , septimo mense nasci persectum partum jam receptum est , and of the seventh son's fortunateness ; but greater honour is yet done this number , god himself rested from creation on the seventh day , and sanctified it , and the iews counted it numerus quietis & felicitatis , in allusion to which , king david may be thought to mention often praying , by seven times a day do i praise thee , because of thy righteous judgments , and how oft shall i forgive my brother , unto seven times , so we read of seven churches , seven candlesticks , seven stars , seven lamps , burning before the throne of god , which are the seven spirits of god , seven seales , and seven angels with trumpets , seven angels having the seven last great plagues , these do set out the number seven , which applyed to our text's purpose , declares fringe happy as well in the number , as in the children ; god had not onely more blessings then one but even seven in store for him , and those he had by his wife in a fourteen years marriage , now see the danger involved in this pleasure , the priest had lost his church income , and had contracted a charge which he probably knew not how to maintain : and that evil heart of his that made him to desert his orders , and that by an imposition upon the law as well as upon his own name and his seduced witnesses conscience , now tempts him to seek to support his pleasant life by perfidie and treason by which no man long advances himself . for though god often blesses sincerity with the gain of greater blessings then men lose , to preserve it , as he did valentinian , who hated by iulian and discharged his trust in the army because he was a christian and retired to a private life , was upon iulian's death in the persian warr chosen to be emperour ; yet he mostly recompenseth one successefull sin with a sin of ruine : thus did he , the priest here , after a fourteen years prosperity . demum de crimine laesae majestatis in tuam celsitudinem . this clause shews the just return of god on fringe his falshood ; mercy had a long time waited for repentance , but because iudgement was not suddenly executed on this sinner , therefore his heart was fully set to doe evil ; and that no ordinary one , but such an one as shall pay all the arrears of his own and his other men's sins : that look as montgomery ( by being casually the cause of all the troubles in france which followed upon the death of henry the second of france , whom he unhappily killed running at tournament with him ) i say , as he was thought many years after punished therefore by being taken in rebellion in danfront , and by judgement of the parliament of paris executed as a traytour : and as henry the third of france , who caused the duke of guise to be murthered , was himself after murthered by clement : and as henry the duke of guise proud in the excellency of his minde and body , so that he boastingly would swim in a strong currented river against the stream in his compleat armour , and all this to tell the world his strength ; whose pride god punished his by permitting him to side with a faction against the crown , which brought him to shame and to ruine : i say , as god was revenged of these mens former sins , by the latter punished , so was he with fringe . into a treason he is led , and probably leads others , and by it is brought to a shameful end , and worthily and without pity ; for treason is as the sin of witchcraft against the law of nature and nations , a falshood to the pater patria , who ought to be adored and defended . treason , god himself very early punished in lucifer and his comrades , in corah and his company ; neither did heaven bear the one , or earth brook the other . and hence was it that of old tribuni sacrosanctum corpus attingere capitale fuit , for treason is that which has so much horrour involved in it , that it denudes a man of all comforts , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. when one man rejoyces in his family , another in his house , a third in his wife , in his friends . this treason rescinds all those , and dismantles him of all but sad thoughts and deep despairs , which makes all nations to abhor it , that they think no punishments too dreadfull for it ; for it being a diminution of majesty , for which cause (a) civilians call it imminutae seu laesae majestatis crimen , there is as much done by it as malice can do to disarray the glorious majesty of god , of that resemblance , of his sovereign power , which he hath cloathed his deputies supreme magistrates with , for the good of mankinde , and the preserving of justice , order , and every thing that is praise worthy amongst men . hence comes it to pass that treason being as much as in man is the defeat of these glorious ends , is by all nations and all lawes severely punished , not onely with death in the actors but in all the counsellors , abettors , or concealours ; and not onely against them but against their posterities , families and allies , all which for treasons have been unfortuned , banished , yea put to death , and that with all the exquisite torments imaginable ; not onely to tell men the horridnesse of the fact but to deterr them from acting the like wickedness . amongst us the laws have ever been most severe against treason , as that which is contra celsitudinem tuam , as the text saith , against the life , government and being of the sacred person of the king in the fixation of his throne ; and therefore accounted inter scelera jure humano inexpiabilia . hence the law of canutus made it death and losse of all ; so king alfred confirmed the law with many additions c. . and so the common law punished it with death , losse of all both fortune and family . and because the crime was so deep dyed and contracted such a penalty of non-ultrality in this world , the parliaments of all times have not onely ascertained treasons and given men definitions and characters of their consistencies , ( preventive of expositions that power may be tempted to make , and mischief in the committer● pretended ignorance of ; ) so that those consulted with , cannot but let men see their duty , and their danger , and leave them wholly causal of their dishonour and ruine if they observe them not : thus did the parliament of e. . in the statute of treasons , which act made by that blessed parliament , * for so 't is called as it well deserved ; not onely for the many good acts , but for this law , for except it be magna charta , no other act of parliament hath had more honour given unto it by the king , lords spiritual and temporal , and the commons of the realm . for the time being in full parliament , then this act concerning treason hath had . for whereas in the statute r. . the twelve first chapters of the statutes of that parliament were spent upon inquiries and treasons , according to various opinions and successes ; by which , the h. . c. . sayes , no man knew how to behave himself to do , speak or say , for doubt of such pains . those statutes of r. . were repealed , and treason onely stated according to the e. . confirmed by e. . c. . and mar. c. . which grave and gracious statute of the e. . was promoted by the renowned judges then living ; as were the statutes of confirmation , which sir edward cook mentions , and i here from him , to the honour of them , and of their families and posterities , who were not by those expressions of publick spiritedness , more just to own their profound knowledge in the laws , and mercifull to their own nation and posterities , then to their sovereign's honour and his crowns stability , in promoting the fair lillies and roses of the crown to flourish , and not be stained by severe and sanguinary statutes ; for as much as the state of every king , ruler , and governour of any realm , dominion , or comminalty , standeth and consisteth more assured by the love and favour of the subject towards their sovereign ruler and governour , then in the dread and fear of lawes made with rigorovs pains and extreme punishment for not obeying of their sovereign ruler and governour : these are the words of the stat. mariae sess . . the consideration of which , as it induced our kings in their parliaments to make no more things treason , then necessarily were such to be , and as such to be punished ; the particulars whereof are in a great measure specified in the statute of the e. . which statute is so commentaryed upon by sir edw. cook , that i referr the reader to him , who as to those things doth give abundant light to the understanding of the statute ; the particulars of which are for a great part treason by the law civil ; yet have there been additional lawes to make offences treasons , which by that statute i think would not have been , for that did but declare what the common law was , and what they discovered then necessary to be made treason ; but it was never intended to be the universal standard of treason , since that parliament which made it , knew well there would be the same power in subsequent parliaments that was in the present one , and they reasonably might , and prudently ought to employ that power of theirs to the provision for all emergency , as well of treason as misprision of treason , as in and phil. and mary c. , . . eliz. . eliz. c. . eliz. c. . eliz. c. . eliz. c. . eliz. c. . eliz. c. . these and other like acts declare treasons as occasion shall be ; which makes good , that treasons being high offences are not left at large to be vagely expounded , but when any treason is not within the e. . or subsequent acts unrepealed ( unless by common law it be ) no treason i think ought it to be accounted , although i know sometimes power ( though quo warranto god onely can question , who is paramount power ) makes that called treason , which is not so really ; but as the king of navarre told henry the third of france when the pope had excommunicated him ( about the duke of guise , and the catholiques cause , as they were called ) and complained of the pope's violence against him ; o sir , said he , let your majesty endeavour to conquer , and be assured the censures shall be revoked ; but if we be overcome , we shall all dye condemned heretiques . according to this calculate , i say , power has ever in the world made strange treasons , witness the late declarations of that nature , which england these . years never heard or read the like of , that by name of ianuary , black and blew , fatal ianuary . c. . . that of iuly , . c. . that of august , . c. . that of september , . c. . these were declarations of treasons , not known in books before , nor according to the books i read in more majorum authorized : but to this our text has no respect , for the laesae majestatis in it was in tuam celfitudinem , not onely against a single person , but the best , or at least second best of persons in england ; if not against the king himself , yet against him , whom our chancellour thought the heir-apparent to the crown . for truly when , or where this treason was committed , or in what manner , i am altogether ignorant ; though the word conjuratò makes me believe it to be by treachery and secret practice , either to betray his prince or reveal his counsels ; it probably being not recorded , at least in history , as i before wrote : but sure that it was our chancellour's authority gives me undoubtingly to believe , and that the judgement was according to law , upon either his confession or proof by witnesses ; for the text sayes , he was conjuratò convictus , which i conceive he could not have been but by tryal and judgement upon it : since ( the rule of law sayes res non ideò vera est , quia asseritur , sed quia probatur , ) which being done modo & forma , he remains an infamous traytor , and so adjudged to shame and death , yea to shame after death , the quarters of whom are monuments of terrour to all such successours in treachery : for surely he must be seduced by satan and his own evil heart , who can be treacherous to a king of england , who governs by the setled lawes of his kingdoms , which are ( said the wisest and worthiest of kings and men of his time ) the most excellent rules you can govern by , which by an admirable temperament give very much to subject's industry , liberty , and happynesse ; and yet reserve enough to the majesty and prerogative of any king who owns his people as subjects , not as slaves ; whose subjection as it preserves their property , peace , and safety : so it will never diminish your rights nor their ingenuous liberty , which consists in the enjoyment of the fruits of their industry and the benefit of those laws , to which themselves have consented . i say , who dare be treacherous to such a king , deserves the severity of the law as fringe here had ; who fox-like dealt under ground , and , privily conspiring against his sovereign , was conjurato convictus , and put to death therefore . and now it behoves his disguise to be taken off , and him nakedly to appear what indeed he was , who had masked so many vices hitherto under the covert of religion and the gravity of his profession ; and he having but a moment ( as it were ) to live , in ipso mortis articulo , when the abjuments to his dispatch were sitting , then he follows the prophet's counsel to achan , confesses his sin and gives glory to god ; in not biting in the lip , but openly publishing , that not onely as a traytor he now dyed : but that god had brought this guilt on him to shame his former prevarications , and to display his occult desultoryness and theatrique personation of what he was not : and he that should have followed the moralists advice ; subsilire ad coelum ex angulo ; though he failed in that , yet did exsurgere modo , & se deo dignum fingere . now outcomes confession , the second best thing to innocence , and he penitently acknowledges that he did suborn witnesses to depose his contract with the woman he marryed ; whereas there was no such thing in truth , but that he did it to procure his legal release from his religious calling and severe single life . o how happy are afflictions and deaths to those who by them are made penitent sinners ! how great cause have god's ionahs to blesse god for a storm , and a sea , and a whale to swallow them , to prevent the swallow of the bottomless pit ? how mercifull is god to men in love with themselves when prosperous , bringing them to see themselves miserable and to look for a better state above themselves . o 't is happy when afflictions are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the discipline and exercises of virtue and goodness ; when men by them are , as that laconian said children were by teacking them , made more accustomed to and more delighted with virtue ; when god by them brings our sins to remembrance which we had forgotten , and which we would have stifled and buryed till we had for them been buryed in the pit out of which there is no redemption ; thus benign was god to our priest here , who was sub temporaria gravitate , vel potius sub gravitatis imitatione , as pliny's words are ; and seemed to deserve some praise for his faithfullness in performing his troth to his mistris , which is the part of an honest man ; nor is any man just or worthy that does it not ( i mean not to a mistris of pleasure as gallants call them ( for they neither keep nor deserve to have faith kept to them ( but of virtue in order to a wise ) who so , i say , to these keeps not faith , will have it one way or other punished notably ; as fringe had for those sins which were as bad as bad could be , contriving a lye , suborning witnesses to depose it , apostacy ( as it were ) from his order and habit ( for god accounts fringe a voluntary desertor , not under compulsion of canon because he contrived his own degradation , and the law was as to that blamelesse ) and what makes all the rest appear ? treason : which had it not been , and by it death , the priest would probably have not at all confessed this his sin , or not so publickly and so amply as he did ; but god that saw in secret did reward him openly , not in the sense those words were uttered but in the sense they w●re threatned against david's sin , sam. . . thou didst it secretly , but i will do this thing before all israel and before the sun. by which god made fringe conspicuous in the penance of his death , who was not so in the innocence of his life ; so true is that of the emperour antoninus , though the cedar be lofty and beautifull to behold , yet the coal thereof is nothing the whiter for it ; and though the flint be vile and under-foot , yet the dust of it is nothing the blacker for it ; often god makes the dissolution of mean men , who are bred hard and live nearly , more signal and remarkable then that of princes , who feed high lye soft , and are full of pleasures , thus that emperour . from which notable example of fringe , we should all learn to make our lives referential to our ends , and to do nothing in health , prosperity and life , which shall upbraid us in sickness , distress , or death . for as dying bruxillus comsorted himself , sure i am , saith he , to him , that in life has done no injury to men , the gods will not be unkind at his death , that is in scripture-phrase , he that has made god his song , his portion , and his delight , in this house of his pilgrimage , wil finde him not far off when trouble is near and there is none to help him . and so i leave the consideration of fringe . qualiter & sape per verti judicia , faelsorum testiam medio , etiam sub optimis judicibus , non est tibi inauditum nec in●ognitum mundo , dum soelus illud ( proh dolor ) creberrime committatur . these words are the conclusive deduction from the premises by which the chancellour is not to be understood to lay blame on the law-civil , which allows deposition of witnesses , to cast causes , and rules judges to sentence according to them ; though they be , as in the prealledged cases , never so unjust and perjurious : but serves onely to commend those lawes most , where the greatest care is expressed to prevent them ; which though the wit of man cannot do , without the grace of god restrain ; yet there is most probability of obviating it , where the severest scrutiny is of the witnesses , and the most materiall exceptions to invalidate them allowed : which for as much as the civil lawes do their part in the empire , and the common and statute law performs its part here ; there is no cause to charge either of them for the mischief of ill accidents in their respective orbs. god has condemned all under sin , and under the fatall effects of it ; and errours will fall out sub optimis iudicibus . no magistrate so holy and wise , no law so severe and punctual , but may be defloured with evil men and evil practices under them ; non est tibi incognitum , nec incognitum mundo , sayes the text , with regard to the community , and so not to be wondred at appearance of such monsters . all that rests to good men is , to take heed of their wayes , that they ●ffend not with their tongues , and to hate every evil way and work ; which is the sense of proh dolor : ] and to have the motto of the family of momorancy fiducially in their eyes , deus primùm christianum servet , which the wise-man translates into other words to the same sense , acquaint now thy self with god , and be at peace , so shall god come unto thee ; and thus if they be guarded , they shall not need to fear in the evil day : nor shall the sons of violence do them harm : but that god , whom they serve , will not reward them with disfavour , as henry the third of france did his old , noble , and wise marshal momorancy , whom he re●oved from court , because he pretended he knew not how better to reward for his great merits , then with easing him of the trouble and toyl of affairs ; but he will keep him in all his wayes , in perfect peace ; which is the portion only of those , whose hearts are stayed on god ; who , to his , is the onely continual feast in life , and after , receives his to glory : where , to praise him shall be their delight , and to enjoy him their eternity . and so we conclude this chapter . chap. xxii non igitur contenta est lex franciae in criminalibus , ubi mors imminet , reum testibus convincere , ne falsi dicorum testimonio sanguis innocens condemnetur . sed mavult lex ista reos tales torturis cruciari , &c. here the chancellour takes off the asperity of some civilians against the proceedings of the common-law by juryes as well as witnesses , upon consideration that even france , where the civil-law is the national law ; yet does allow the rack to prevent false witness in criminal causes , which is besides the ordinary prescript of the civil law ; whereby deposition of witnesses is onely allowed to conviction . nor surely is it amiss that lawes should be framed according to the natures of the people over which they have influence , but very prudent and just it should be so ; yea inconsistent it would be if it were otherwise . for as all people have cloaths , dyet , pleasures , company , and all enterprises , means , and instruments peculiar to them ; so have kingdoms exercise of legislation according to the vices and virtues regnant in them . and as there was reason that led our ancestors to try matters of fact by juryes ; so was there no doubt like reason in france for the use of the rack , not onely the purgatory , but the hell to torture falshood , and by confession of latent mischiefs to prevent innocent bloud-shedding . for though we in england have a rule nemo tenetur seipsum accusare , and in judgement of law he is no offender that is not proved such ; yet in france , because perjury hath brought many to death that have not deserved it , but onely had a charge from malevolence , and the effect of it , subornation of witnesses : therefore the law is there , that if a man be criminally accused , the bare depositions against him shall not condemn him , unless he himself confess the fact either voluntarily without compulsion or terrour ; or upon the rack applyed to him . imbertus , and tholossanus after him allow this the law in france , and without this , non contenta est lex francia , sayes the text. for since the end of torture is punishment for indagation of the truth , it is thought fit there to do it by this means , which is quinquepartite , and consists . of threats of racking . . in leading to the place of torment . . uncloathing and binding the party . . lifting him up upon the rack . lastly , adding weights to his feet , &c. these and circumstances of them , the french civilians abound with ; and this the law of france does , as not finding the proof by witnesses ( who may be suborned or maliciously acted ) the very infallible way to discover truth and prevent innocent bloud-shedding ? and though by the common rules of law even racks and torments are not allowed in certain cases ; yet even in them cases the practice of france enfranchises it , and the reason is , quia interest reipublica delicta manifesta esse , & detegi ut puniantur ; and this is no new law , for the authour adds , atque it a majorum more inductum est , ut delicta quae clam committuntur semotis testibus per tormenta appareant . reum testibus convincere . ] witnesses ought to be by all laws , and without them no conviction ordinarily lyes ; now the person to be convicted by them the text terms reus . the greeks called this : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; whence our common-law has the practice to charge the inquest upon criminal and capital offenders , yee shall inquire whether he sted for it , since ( a ) fuga praesupponit reatum : the civil-lawes by reus understand the same thing in qui accusantur rei criminis , qui conveniuntur rei , that is in tully's words , rei sunt dicti quorum res agitur ; and so again . de orat. reos autem appello , non eos modo qui arguuntar , sed omnes quorum de re disceptatur ; and tholossanus when he makes reus to be a relative term , understands judgement at law to consist of three partyes , the actor , the judge , the criminal person , that is reus . thus ulpian , eum cum quo agetur , accipere debemus ipsum reum ; and the gloss on ( a ) ulpian , lib. . ad l. iuliam & pap. makes reus accusatus . so then the sense is , that whoever is accused of a crime which forfeits his life and estate , must be convicted of it by solid proofs of two witnesses , or by confession or flight . so is the law of god , so the common-law , and no new courses has the government of england ever introduced ; for if any one guilty of treason , be slain in it and cannot be brought to tryal , which is , testibus convinci ; ] the course is to attaint him by act of parliament : so was it in hin . . time , stat. . c. . whereby iack gade was attainted ; and so has it been deservedly often since . so that though our common or statute-law has not , thanks be to god , our kings , and parliaments , enfranchised and made legal the odious torture of the rack to discover conspiracy or secret villany by ; though perhaps in some high cases , and upon supposition of martial exigencies , high punishments such as the rack either threatned or executed has been used : yet has it a very grievous punishment for conspiracy , and that by a writ of conspiracy , and an indictment at the suit of the king ; the manner , punishment , and extent of it , sir edward cook sets forth . but the law of france is not contented , saith our text , to take this accusation of witnesses for infallible , therefore mavult lex illa tales torturis cruciari , which choice of france , thus to subjoin tortures to come to the discovery of truth , yet for all them , is fallible , and the tryals of them to be eluded . for since they are to join with presumptions and so far are onely practicable in france , severed from them tortures must not be , and the reason is , quia ex praesumptionibus solis nemo damnandus est capitaliter . which considered , though the tortures in france may be intended to search out truth and secure innocence , yet are they no otherwayes available thereto , then other milder courses are with us . truth depends on god , and if he do not lighten men into the discoveries of it by an extraordinary sagacity , and open the dark cells and vaults of its recess by his co-operations with mens endeavours , violence will do little . how many do we read in story whom tortures worked not upon to declare what they knew of secrecy , by name leaena aristogiton's mistris ; chariton and menalippus ; theodorus , whom ierome the tyrant of syracuse so in vain tortured ; anaxarchus , aretaphila , alexander , fannius his servant ; philip servant to fulvius flaccus ; the servants of mark anthony and plotinus plancus ; that famous mother lygus , whom tacitus mentions as despising death to conceal her son ; that woman hector ephicaris , privy to the pisonian conspiracy against nero ; quintilia , privy to the conspiracy against caligula ; that famous servant in spain , whose master being slain by hasdr●bal the carthaginian , he on hasdrubal revenged by killing him , and when he was tormented , ridens , gestiensque laetitiâ , in medio dolore expiravit ; add to these bonetus of verona , bardilo , viucentinus , vincentinus , that servant of mauritius whom pontanus writes of : these and many other like examples may be produced of the ineffectuality of torments . that cursed raviliack , who had the exquisitest torments that art and severity could invent , acted on him to make him confess his companions ; yet confessed nothing , but that he was instigated to it by the devil . for sin is of an obdurating nature , and he that has been so wicked as to design , is not often terrified by punishment from acting it ; conscience indeed may work much towards confession , but death and tortures work often nothing , which surely is one cause ( besides the christianity that is expressed in avoiding inhumane torments ) that the law of england , though it allows prisons ad detinendos , non ad puniendos , as bracton's words are ; yet it allows not prisoners in them to be durely used , not to be bound in shackles , nor to be beaten : for whatsoever is of pain to prisoners , other then to keep them from escape or mutiny , is criminal in a goaler : and therefore there is no present law , that i know , to warrant tortures ordinarily in england , nor , saith sir edward cook , can they be justified by any prescription being so lately brought in , and never heard of with us till h. . when iohn holland earl of huntingdon , and duke of exceter , being constable of the tower , brought it in ; but to little purpose ; for it never had , as by warrant of the common or statute-law , place ( god be thanked ) here ; for it was a new punishment here , and such tholossanus sayes , quae magis ad carnifices immanes , quàm ad christianos iudices pertinent ; and as the holy martyrs found inhumanely exercised upon them in queen mary's dayes , when their hands were burned off , and their bodyes abused , not by order , nor according to common , or statute but upon some pretence of canon-law ; the which i the rather note to shew the happiness of the reformation , which determined cruelty of persecution to death simply for opinion , ( except it be for heresie within the statute of eliz. ) and leaves men secure from that while they are not traytors , heady , high minded , lovers of pleasures more then lovers of god. and if the statute of & p. & mary , c. . called by a great name a dangerous act , was but a probationer to the & of the same reign ; and then onely to continue to the end of the next parliament : which being the eliz. was by that confirmed to queen eliz , and to the heirs of her body , which failing , this act hath lost its force as , saith the aforesaid authour , it was well-worthy . i say , if the nation were so sparing to endanger one limb of a subject , how much care did they intend to expresse to the whole body , which the rack disjoints : but of the care of our government , to exclude foreiners greatness , and forein customs hence , read sir edward cook , and the statute iac. c. . about tryals of scotch-men and english-men . in all which this mavult lex illa reos torturis cruciari , is , as i humbly conceive , by the law of england left out of its allowance and remains purely french. quousque ipsi corum reatum confiteantur . ] this is one end of the rack , that they , that are accused , may be brought to confession ; that is , that they may make that known which is strongly suspected and sworn against them : not that confession in torture presently makes a proof , for that it does not , nisi reus ratificet eandem à tortura remotus , in juris auditorio , as the doctours say , ídque expresse apud acta extra carceres & tormenta ; and if he shall deny what he is accused of , the first and second time , and that a day after every of their torments , when he is in cool bloud ; then the third time he denying is absolved , nè in infinitum procedatur ad tormenta ; for thus suffering and denying his guilt , videtur purgâsse indicia : so that the law of france , in requiring confession by so terrible punishments , supposes there is somthing to confesse ; and it may be feared to press some by terrour to confesse that against themselves , ( to please the judge or the state by whom they are prosequuted ) which never was in thought or intendment . and thus that danger which tortures are intended to prevent , may be incurred , passiones iniqua ! what more such then base fear , and what subornationes ad perjurium are there more dangerous then revenge and reward , to conceal others by accusing a man's self : these may be , and have been ; notwithstanding confessions on racks , and have been as injurious as per jurious witnesses ; and therefore our law here , though it had purgations by ordeal and battail ; yet because they were cruel , and god did not ever , for reasons best known to himself , determine innocence and guilt by the events of them ; but that many innocent persons perished when nocent ones escaped by them : therefore has the law obsoleted them now . and where offenders are not by clear evidence cast , there they are not to be sentenced and executed ; notwithstanding which favour of the law , as few great offenders in england lye hid , and avoid their deserved punishment , as in any part of the world. quali cautione atque astutia , criminosi etiam & de criminibus suspecti , tot torturarum in regno illo generibus affliguntur , quod fastidet calamus ea literis designare . quali cautione atque astutia . ] this is brought in to shew the formale internum , of lawes penal and provisional , wisdoms forms them with such warynesse , as that theremedy shall neither prove the disease , nor shall the probe be too short for the bottom search of the wound ; but there shall be every grain of virtue and vigour that is necessary to the effection of its intendment . and thus composed lawes are worthy their name , and operative to their end . hence cautio is ranked with provisio by tuuy ; and astutia coming from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the old word for a city , in which men are made wise and wary by experience and conversation . our text predicates these endowments of the law even of france in the case of racks , which no doubt but were invented by the wisdom of worldly men to carry on their terrour over their treacherous subjects ; whom they can punish , if either they really be guilty , or be onely suspected to be guilty : for so the text sayes . criminosi vel de criminibus suspecti . ] these tortures are appointed for both parties , whether they are actually or suspectedly criminous ; the former of which are called criminosi euphatiquely ; for words terminating in osus have an import of augmentation , ebriosus , gulosus , famosus , bellicosus , formosus , furiosus , imperiosus , seditiosus , so tully uses it : and when bonosus the emperour is defamed by the historian , as one born ut bibat , non ut vivat , there is somewhat of analogie hereto intimated ; it being part of the triumph of wit 's liberty to express the grandeur of things by words of altess , which , having a sharpness of accent and syllabique pomp , are understood either expressive of excellent virtue , or execrable vice : so that our text by criminosus intends a noted offender , patens crimen ; and as it were fine teste probatum , whose guilt is not so much necessitatis as voluntatis ; not such , because he cannot avoid it , as he will not , because he being wicked delights in wickedness , to whom it is a second nature , and that which gratifies him . such pride some men take in their combustible and sinfull humours , that they cannot account themselves happy , but when they are in some criminal singularity ; like our proto-brownist master brown , who made so little account of his schism from the church , that he would glory he had been in prisons , in some of which be could not see his hand at noon-day ; yea when he was above eighty years old , his obstinacy is said to be such , that for breach of the peace he was committed to northampton-goal , wherein he dyed , but this by the way : that which i mainly note is , that criminosus here in our text is such an offendor as is willingly and designedly a breaker of the law and that with obstinacy . et de criminibus suspecti ] these incurr the rack too ; for there being in the law vehementia indicia , which are , though not full proofs , yet seconds to it ; they are therefore said to draw a man into question , because in canvas of crimes , questions are propounded for them to answer , and just it is that before men be punished they should be examined : god presidents this in his question to cain , where saith he is thy brother abel ? and reason dictates this method . for since there may be offences dangerous though indiscernable , there must not onely be a study of not being openly guilty , but of avoiding whatever may justly give suspicion ; for of all things suspicion is the most prying and cankerons incumbrance ; 't is a fruit of envy , tenerity , subtlety , and hatred amassed , and it has all the spawn and venome of them in it ; it in ely made hannah a deboist lewd woman , who was a vehement zelot , and who in the bitterness of her soul begg'd of god his own glory in a blessing to her self . suspicion is crime enough , as good before men be guilty , as suspected so to be ; onely in * conscience suspicion without ground findes relief . much suspected may be , nothing proved can be , was the motto of our virgin queen when she was enough , and more then she deserved , suspected ; but god cleared her innocence : and so will do if men walk circumspectly , keep good company and good hours , use moderate pleasures and live in moderate expences . that in fine will best secure from suspicion which comes nearest to albertus scipioni his stage advice for travel , your thoughts close and your countenance loose , will go safely over the whole world ; that is , keep a good tongue , and an unbusie spirit , and suspicion of crime will be a non ens . tot torturarum in regno illo generibus affliguntar , quod fastidit calamus ea literis designare . this the chancellour adds , not to raise a wonder that offences should be variously punished in different places and nations ; for nothing is more ordinary and convenient then that it so should be : but to evidence that the french as they are a very ingenious and nimble fancyed nation , so do they expresse it in all things that they do either of word or action . and indeed , as i am not ashamed to own my disaffection to their fashions , much as i humbly conceive to the dishonour of our pristine gravity introduced amongst us , and to the waste of our wealth which was wont to be expended on hospitality , and now is lavished in toyish baubles and airy nothings ; so is our chancellour as much out of love with their method of discovering truth in cases of great consequence and of latent nature ; though it is said they are intended not to explorate cruelty , but to penetrate truth and to avoid all danger by malevolence . for since reason supposes a man will not willingly , if at all , affect himself to be guilty of what he is not , the canon law ( for i suppose it first to allow tortures ) enjoins that where vehement suspicions are , & the indicia are proved by two witnesses , there , if the accused party will not confess , racked he must be ; because by his obsticunning , the fact can be no otherway proved ; for torture is subsidium quoddam extremum ad inveniendum veritatem ; and where any other way can be taken to discover , torture is not to be used ; and whereever the contrary is , the learned spaniard sayes , 't is de consuetudine sanguinariorum hominum . and this to prevent , i humbly conceive to be the cause why the law of england is so sparing to leave any thing to discretion in punishments , because men are so apt to preferr passion before justice ; therefore are all opportunities of passion rescinded and the positive law is prescribed , which the reverend judges do observe precisely ; and were it otherwise , that inconvenience might be with us that is abroad , where much of judgement is arbitrary ; for though in the civil and canon law the rules are straight enough , that no man is to be tortured when there is other proof ; onely by report no man is to be tormented ; that the indicia ought to be proved by two witnesses ; that onely fame is not sufficient to bring a man to torture , except the man be of ill life , ill belief , and ill conversation , &c. yet because in these cases the judge is to determine , nothing is more usual then to act something like cruelty under the pretence of justice . and therefore though all doctours agree , that in case of treason , ubi criminaliter non potest probari , tortures are necessary , and no person is exempt and priviledged therefrom ; and the like in heresie : yet do even they who are most for it conclude , that they must be by wonted and known tortures , which grillandus and iulius clarus make five in number , and marsilius improves to fourteen , and boasts he had invented another per somni substractionem : but pegna so far abhorrs this wicked ingenuity , that he parly sayes , that invention of cruel tortures to afflict men by , is rather the work of hangmen and cannibals , then of lawyers and divines ; which calls to my minde a speech of that mild spanish father alfonsus , confessor to king philip ; who , when he saw the protestants so hurried to the flames for their religion , professed , purpurensthic imber monstrosos producit foetus . all which considered , though france do abound in various tortures , such and so many as is tedious to rehearse , and troublesome to think upon ; yet blessed be god these tortures are restrained to that country . for in arragon ( pegna's noble country , & semper catholice regno , as his words are ) torture cannot be inflicted by the judge , but onely in case of heresie ; nor in england , so far as i can finde , can any man suffer death upon religious accounts but in case of heresie upon the statute of eliz , . wch heresie is also there limited to prevent the danger of misinterpretation . and though with us we have many different punishments for felonies , as infalistatus a felon was at dover , demembratus of his eyes and stories at winchester & wallingford , at southampton drowned , at northampton , beheaded ( and so i think at hull and halyfax , the suddeness of which gave occasion to that speech , from hell , hull , and halyfax , good lord deliver us , ) and so in sundry other places ; yet have we no such tortures for malefactors as france has . for such the tender-hearted chancellour , who had long attended his noble prince and his hard misfortunes there , knew the tortures to be , so various in their number , and acute in their nature , that he sayes plainly , fastidit calamus literis designare ; that is , he thinks it pity to propagate the memory of them , and refuses to give them the honour of ought , but his abhorrence ; for fastidire is as much as recusare : and the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which he uses to express his minde 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by , tells us , that his stomach rose much against them , and his tender soul did penance , while he remembred what dreadfull accounts the engineers , that invented them were to make to god. i confess 't was a most hellish , execrable , monstrous , unpardonable parricide , that raviliack committed on that brave and puissant king h. . and no torment was great and grievous enough for it ; but yet to read the narrative of it , is a terrible torture to a meek and mercifull spirit : and the tortures that iames the grand-master of the templers in france was put to , when they tormented him to death by peice-meales to make him confess such things against the order ( which they had a minde to extinguish ) as they were in no sort guilty of , which he confessed he did to be rid of the pains , and in hope of life , though he craved god and his order pardon therefore . these , i say , are great tortures ; so also were those that the venetians executed upon calerio , assassine to the venetian gentlemen in candy , who being by the venetians taken , was thrown down from the top of the palace on swords points ; and mossolerico his brother , being convicted for sending letters into padua ; while besieged by the venetians , was with two priests consederate with him put alive into the ground between the two columnes with their heads downwards . but yet these are such as france affords , for so in the particulars it followes . quidam in equuleis extenduntur . ] this is one of the kind of tortures france has , and a grievous one it is . the extension of the body on a wooden horse , on which the hands and feet are so fastned and the body stressed with weights , that as it follows , eorum rumpuntur nervi & venae in sanguinis fluenta prorumpunt , this was a heathen roman punishment , tully mentions it : of kin also it is to the rota or breaking on the wheel , which the germans of old used . of these punishments that is true which the historian sayes of the extraordinary punishment of metius suffetius drawn in pieces with wilde horses , i●ud veluti immite praeterque legum immanitatem , in exemplum deductum non est , which is the reason , i suppose , i finde no mention of it in the digest , either in the title quaest. or poenarum . from which acuteness of the pain and rape of the violence of this torture , our text's sayes , rumpuntur nervi , that is , that is , it breaks in upon the main battalia of the body , and that it must do by a violence of assault , and a not to be resisted force ; for the nerves which the greek , call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nutare vel flectere , are the motive instruments of the body , of a spermatique and bloudless substance , endowed with sense and motion ; and therefore as the arteryes and veins , so the nerves are reckoned , inter prima & simplicissima elementa humani corporis ; and so available are the nerves , that by them are expressed the most necessary furtherances to motion . hence it is that galen by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 understands not onely that genus totum , quod à cerebro & spinali medulla est , or that which arises out of the muscles , and by hippocrates is called the tenon ; but also that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or ligament which physicians call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the binding or holding together nerve , which having according to the old philosopy its rise from the heart ; or as the later anatomysts referr it to the brain ; from either whereof , as the noblest parts of life , is argued , the nerve to be a choice instrument : and this the learned understanding so , express every thing of excellency by it , as the notes on our thirteenth chapter do declare . so then the text by this rumpuntur nervi , ] understands a total subversion of nature , such a rout in the microcosm as is unrallyable , and with sampson's strain of strength , carryes the foundation from underpropping the superstructure , that which disseises life and enters death as a forcible possesser , & vena in sanguinis fluenta prorumpunt , ] that is , by a breach of those china ampuls in which are the liquids of life reposed , not onely their wonted circulation is impeded , but all its spirits evaporated and substance lost . fluentum signifiing a small river , and the bloud being by breaking of the veins , which are tenuous and lucid , moved , all the contents of them flow out ; and that is true of iob , we are all as water spilt upon the ground , that cannot be gathered up again . quorundam vero , diversorum ponderum pendulis dissolvuntur compagines & junctura . this is another kinde of torture , that of disjointing the body , and that by weights which are too heavy for the joints to bear up , by the weight of which the body is torn a pieces . this is worse then that punishment in aethiopia , where those that are criminous , are forced to drink the herb ophiusa , ophiusta , or ophinea , which will so terrifie the minde of those that take it , and present to them such terrible views of things , that they shall chuse rather to make themselves away then endure it . or like that persian torture called disphendomena , whereby men are tyed to the bodyes and tops of trees deflected ; which when they let loose , rends the body , with its forcible return to its natural position , into pieces ; this is that , which in another sense then s. paul declares the two edged sword , the word of god to do , divides between the marrow and the bones , not onely beats up but blows up natures quarters into nullity , dissolutione continui : such a like cruelty as this was in richard the seconds time butcherly and barbarously here , by the l. holland and others , acted on a carmelite fryer , who accusing the duke of high treason , which the duke ( great in power ) excused , and his excuse by the king being excepted , he thereupon prayed the king that the lord holland , the king 's half brother , might have custody of the fryer , till the day that he should come to his full tryal ; the night before which day , the said lord holland and sir nicholas green knight , came to the fryer , and putting a cord about his neck , tyed the other end about his privy members ; and after , hanging him up from the ground , laid a stone upon his belly , with the weight whereof and poise of his body withall , he was strangled , and tormented so , as his very back-bone burst in sunder therewith , besides the straining of his privy members . et quorundam gaggantur ora , usque dum per illa , tot aquarum infundantur fluenta , ut ipsorum venter montis tumescat more , &c. this is another torture , to apply to the mouth the gagg , called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , so fast clasped to the extended orifice of the mouth , that it not onely hideously pains it to be kept at the heigth of extension , but also impedes all speech or complaint ; as also gives opportunity to exercise utmost fury upon the intrals , by infusion either of scaldding lead or any mettal into the body , or such vast quantities of water as the trunk cannot contain , but must break with the burden and stowage of it . this surely was an ethnique punishment ; to which * s. paul alludes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , speaking of false teachers . and the gagg is only here used by thieves , who to hinder out-crys , whereby they may be detected , gagg men : and so when some obstreperous offenders have been brought to punishment , to prevent their blasphemy against god , and the authority they dye under , some powers have made use of this , though never that i read of in england , there being a better way to prevent such raving , speedy execution : for though the law does , as i think , allow the sheriff liberty to give the condemned and to be executed person , freedom of speech upon presumption that he will testifie some remorse , or declare somewhat of sober exhortation to the people ; yet when his concession is abused to raving and vehement execrations , to insolent and high justifications , which are derogatory from the honour , authority , and justice of the magistrate ; the sheriff is , as i think , to hinder that by executing the law ; for reason as well as religion directs not to abuse liberty for a cloak of maliciousness . piget ( proh dolor ! ) jam penna exquisitorum ad haec cruciatuum enarrare immania . nam eorum variatus numerus , vix notari poterit magna in membrana . this the chancellour adds to shew his abhorrence of the wicked ingenuity of these torments ; and his vehement abjuration in ( proh pudor ) is first observable ; for any thing that affects the heart with grief or the face with shame , authours have expressed by proh dolor , prob pudor : and though pro be used sometimes and but rarely , yet prohob aspirabilem literam plus afficit , say the critiques , perhaps doing respect to h out of that rabbinique reason , because 't was a letter of the name of god , and so dignifiing what ever it was conjoined with . the sense is , that our chancellour thought these practices rather matter of sorrow and shame then joy & triumph , adding , that there can be little love and pity where these tortures are insultingly practiced . our lord iesus when he prophetically beheld the city near to those exigencies , that the romans soon brought it unto , wept over it ; saying , o that thou hadst known , eventhou , in this thy day , the things that belong to thy peace , &c. and the prophets , when they had burthens to disgorge on the people , did it , as it were , beshrewing themselves to be the messengers of it . holy moses , when god would be let alone to destroy israel , and bids him desist his prayer for their salvation , interposes with god thus , blot my name , o lord , out of the book of life rather than destroy israel . passions , if ever they are religious and commendable , are , when they are exercised about grief for sin , and shame for want of sorrow . o what a disanimation and amazement was there in luerece , when tarquin had raped her chastity , she wounds her self to be revenged on the insolence ; yet heals her reputation of chast , by the reason that accompanyed the blow : o petus , quoth she , the wound , i thy forced wife h●v● made in my heart , does not afflect me ; but the wound thy love hath made in me , who ought , and would onely have enjoyed and been enjoyed by thee , but am violently against my soul and power made disloyal to thee : this , this , was her proh pudor . piget penna exquisitorum . ] this metonomy the chancellour rhetoricates his preterition of these things by ; not , but that he could enlarge on them , but because he would rather bury and obliviate , then brighten and perpetuate the memory of them . when a man is writing , as david sayes , the things that concern the king ; of the piety of constantine ; the mildeness of trajan ; the gentleness of marcus antoninus ; the strict discipline of severas ; the justice of aristides ; the temper of augustus , who lived a renowned lord of an empire , and of a lady , whom he more grieved to leave then he did his greatness : i say , when a mans pen is thus nobly imployed , 't is the pen of a ready writer , viget tunc penna ; but when 't is to gild over dirt , and make a blackamore white , when it must commend lais for modesty , heliogabalus for continence , pompey for temper , caesar for self-denyal , nero for p●obity , iulian for piety , origen for fixedness , severus for lenity , when thus it is to serve fordid ends to the disservice of truth , then piget penna : ] especially if it be exquisitorum . no figure so torvous and tragical can apelles draw , his pensil cannot artisie such foam and filth of putidness ; noble wits and penns are not parasitique , they can serve princes and ages in display of virtues , and record of truth ; but they cannot call evil good or good evil , there piget penna exquisitorum . for as it followes , 't is cruciatuum enarrare immania . ] god has condemned sin to shame , and the pen of exquisiteness is not to reverse the reverse of the escutcheon of state that wickedness hangs forth ; what the great marshal of heaven and earth has stigmatized , and charged with a battoon of alloy , no wit of man must plead for , no pen honourably character : justice gives to every thing its just essay , and art to every figure its symmetrious lineament . devils in practice and invention must be pourtrayed savagely , and the ferity of their deeds be dreadfully as they deserve , represented . this me thinks was notably done by roger bacon a witty preacher in henry the third his time ; for there then being one petrus de rupibus , bishop of winchester , whom the nation disgusted ; he , the said roger , told the king , that petrae and rupes were most dangerous things at sea , which facetious counsel the king following , called a parliament , took counsel of his peers , and was ruled by them . here was that which did answer penna exquisitorum ; and , blessed be god , it did not spare to speak but was accepted to speed ; which had it , the nation had been under cruciatuum immania . nam corum variatus numerus , vix notari poterit magna in membrana . this is added hyperbolically to signifie , not onely the malignity , but also the multitude of them ; these devil like inventions are legion , not terminable to those persons that invented them . for happy were it , if onely ( as sometimes it is ) those that were this way ingenuous , might taste first the fawce of their own cooking , and dy with haman , by the engines they had invented for others . — nec lex est justior ulla , quam necis artifices arte perire suâ , but extendible to others who are often taken in their snare : for many they are , so many that they cannot be crowded close , not contained magna in membrana , that is , sayes pliny in a sheet of parchment : the lawyers using to ingross all in parchment , which they call a membrane from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whence melbrum or membrum , thence membrana quae circa membra ; the greeks call membrana by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because it cloaths ( as it were ) the body ; for the arteries are covered with membranes , which ( i humbly conceive , and if i err i crave pardon ) is the superior pars membri , which we call the pellis : so that by this exstatique expression , there is that intended which may make the sense of the chancellour to be figurative , and denote largeness , and capacity , like ( in a sort ) that which the evangelist uses in those words , there are many other things which iesus did , the which , if they should be written every one , i suppose , that not the whole world would be able to contain the books that should be written of them : which elegant clymax and heigth of hyperbole is to have no other construction but that very many they are for number ; which also , according to its proportion , is the import of , vix notari potuit magna in membrana . leges civiles deficiente testium copiâ , in criminalibus , veritatem consimilibus extorquent tormentis . this , i suppose , cannot be denyed , for tolossanus quotes abundant authorities for it ; and though they have in that law other punishments for capital offences , either death or banishment or servitude : yet does that law in high cases , where it seems it is not to be avoided , ( conspiracy being heynous and secret ) allow torments to detect and thereby prevent it . this leave of god's absoluteness government takes , to try all means for preservation ; and as things are hurryed together , and precipitated in some places and ages of the world , all little enough : no violence , no torment , though it be such as bends a man together , and breaks the silver cord and golden ball of his life asunder , will work on him ; 't is god onely must perswade to confession , his torments in the sinner's conscience make him discover the accursed thing . experience of this , though it has not perswaded quamplurima regna ; yet our nation it hath , to punish legally treason and conspiracy with death , quartering , and corruption of bloud with forfeiture of estate . indeed there was a time when poysoning was frequent with us , then the stat. h. . c. . made the punishment boyling to death ; but the nation judging it too severe and un-christian an infliction repealed it by e. . c. . such a phoenix kingdom is england , so mercifull are our kings , parliaments , and lawes , that all savage punishment heretofore used , either have been by act of parliament repealed , or obsoleted by disuse : of old , grievous offeners were hanged in chains alive , where they , farnishing , uttered dismall moans so to the terrour of passers by and of women with child , that use reduced it to hanging them in chains when dead . so in the isle of scilley there was a punishment of felony very tragical , felons were let down in a basket from a steep rock , with the provision onely of two loaves of barley bread and a pot of water , to expect as they hang the mercy of the sea. notwithstanding these terrours have been in use , and our nation has been branded for fertility of tyrants , though we have had high and jarring spirits which have made way for attempts and forein successes against us ; which tacitus long agoe observed to be the romans key to conquest of us : though , i say , this was our keenness and high stomach ; yet has god brought liberty to us out of the steel and flint of servitnde ; and we are yet free from the rack and those torments which quamplurima regna have admitted . and as my continual prayer is , that from ' all treason and rebellion , sedition and privy conspiracy , from all false doctrine and heresie , from haraness of heart and contempt of god's word and commandments , we may be delivered : so do i also pray , from fire and ●fagot , from rack and torment , from new lords and new lawes , good lord deliver us , and make us thankfull that we see the king in his beauty , and that our iudges are as at the first , and our counsellours as at the beginning ; this shall be written that the generations to come may know it , and the people that are yet unborn shall praise the lord. but it follows . sid quis tam duri animiest , qui semel ab atrocitanto torculari laxatus , nou potius innocens ille omnia fatertur scelerum ginera , quam aserbitatem sie experti iterum subiretormenti . this is brought to confirm that tortures are apt to work on some men to confesse any thing , if by such confession they may be released ; and this i take so far from being a justification of torments , as subsidiary to truth , that as it may fall out in coping with either pusil or resolute mindes , nothing may lesse by it appear then truth , weakness alledging that for truth through fear , which is nothing but fiction , and wilfullness luring up all in silence and resolute secrecy . and therefore the chancellour's quis tam duri animi , is not only a questionary speech , carrying a vehement affirmation in it ; but is a flower of oratory , which has a kinde of perswasive assertion in it ; that most men are so terrified by pain and torture , that any thing they would rather do then undergoe the pain they have once acutely felt : though there have been examples of men , who not innocent but criminous , have so resolved the contempt of tortures and torments , that they have even consolidated themselves to suffer , and by a bravery of courage to out-dare them . how resolutely did that villain olgiat , one of the murtherers of galeatius duke of millan , who seeing some of his comrades in that assassination , fear and begin to faint as they drew near to behold the torture they were to undegoe ; he , though but twenty two years old , desired the executioners to begin with him , ut suo exemplo comites patientiam discerent ; being laid upon the rack naked , and fastned that the torture might more work on him , he with a very audible voice and bold countenance , even when he was half dead , was heard to say , confide hieronime , &c. be of good chear jerom , death is terrible but fame is durable ; yea , and when he was just dying , be ended his life , praying to god most devontly . nor have we been at home here without instances of malefactours , that have dyed justifying themselves , and without all shew of terronr ; michael ioseph the black smith , taken in warbeck's insurrection , being executed , comforted himself , that by this he hoped his name and memory would be everlasting : but an honester black-smith , and of juster courage , because more innocent , was he of burntwood in h. . time , who being sent for to make shackles for hubert de burgh , earl of kent , then apprehended ; when he heard it was the earl of kent , fetched a deep sigh , and said , do with me what you please , and god have mercy on my soul , but as sure as the lord lives , i will never make iron shackles for him , but will rather dye the worst death'that is ; for is not this that worthy , loyal , and courageous hubert , who so often hath preserved england from being destroyed by strangers , and restored england to england . i say , it is less wonder to see innocence courageous ; but to see guilt on the conscience yet so steeled that it can boast of confidence in god and implore his mercy when it justifies murther , parricide , sacriledge , and all upon cold bloud and under pretence of justice , this is strange ; but not so strange as true : the eyes of many have seen , and the ears of more heard it to their consternation and amazement . indeed when men have suffered for righteousness sake , nothing has been more common with god's hectors , then huperhumane fortitude : look into the storyes of the martyrs in heb. . and in ecclesiastical authours , and you 'll find death their joy and torture their ambition , constancy their renown and charity their coat of mayland armour of proof ; they knew god valued more fidelity then any thing else , and therefore they persevered in it to the death ; and as they suffered joyfully the spoiling of their goods and bodyes , so they would be sure that in such their suffering they had a just cause and were innocent . o they knew the spirit of glory restson the in●●censille , in our text , who will go through much triumphingly ; this has made christians offer themselves to torments , and turn the edge of their persecutours swords with the glut of their bloud . this has made men forsake their noble mansions , their pleasant companions , their profitable professions , their beloved countryes , to preserve their innocencyes . indeed this innocency will carry god's iewell not onely to deny subscription to sin , but embrace proscription on for not committing it . this iob so kept close to him , that he resolved not to part with it till he dyed . this innocence is the best defence the soul has against all temptation to , and tribulation for sin ; 't is that which few value because few have it , and few have it because few pray for and prize it ; o innocence where art thou ? whether art thou fled ? in what order or profession of men art thou resident , that we may seek after thee to finde thee out ? thou art in angels , and thou hast been in prophets , apostles , and primitive martyrs , though not in the brightness of thy divine oriency ; yet in transcendent proportions , making them burning and shining lights , spiriting them to despise tortures , resist violences , insult over conflicts , embrace poverties , deny favours , glory in sufferings : but in the world now thou art not , we are all now adayes decocted and abated in our holy servours . no need of racks and tortures to bring off men now from innocence ; make but a motion at the barr of power , and threaten to enter judgement and take out execution upon them for their singularity , and all 's hush . 't is well with the world , as now it effeminately is modell'd , that ethnicism is over ; for if such times should have been now as was then , the text's innocens ille would have been a nemo scit . no courage can be in any soul but in the soul that is sincere ; which because men are not , therefore god gives them up to fear fordidly , and deny the truth shamefully , as those carpet and out-side reverends did i mariae , who were zealous protestants in king edward's , and as zealous papists in queen mary's dayes : yea in the convocation of mariae , there were of all the clerks but six , that withstood the reduction of popery ; and the goodly prolocutor weston , told master philpot one of them ; that because he stickled so against transubstantiation , which was against the doctrine of the church of england ' constituted in edward the sixth's time , that he was a mad-man , meeter to be sent to bedlam then continue there : lo a taste of innocency which will never cope with flames and tortures . that which enables to endure , notwithstanding all , must be faith in god and frailty supported and sublimated by him ; this will make a man not onely dye dayly by mortification , but dy strenuously and suffer patiently for a good cause : and that not from a durities animi the effect of sin , but from a resolution hardned by the fire of holy zeal , which none has but that innocens ille which our text speaks of . who will do by the cause of god , as matheo fasceolo did by his country ? he being a citizen of chioggia , when the genoesses wann it from the venetians , lost a great estate in it ; after which he repaired to venice , and finding the city in a great strair , went to the senate , and told them he was willing to serve his country with all he could ; his estate he had lost , and had nothing left but his wife and children , and them he tendred to serve the state , though it were to be sold to raise money for the states use . so if god's glory be concerned , a good christian , innocens ills , will part with all that 's dear to promote or rescue it . et non semel mori mallet , dum mors sit ultimum terribilium , quàm toties occidi , & totidem gehennales furias morte amariores sustinere . this our tex-master adds as the reason why an innocent man would rather chuse once to dye , then long and often to be tormented ; because in death there is but one short brunt which over , all terrours are past : but in tortures and torments , as there is scarce perfect life ; so neither is there compleat death , but an interpendance of the miseries of both , and the mercyes of neither . whereupon the chancellour concludes , 't were more eligible to an innocent man to dye for adoe as we say , then to be tormented , which is protracted death : and that the chancellour's intendment may more signally appear , 't is fit to consider his order in that he proposes ; . he concludes that a good man's choice is alwayes de re licita & possibili ; if he had his choice , he would desire nothing but what ought and is to be , semel mori mallet . sin requires natures punishment by death , and god has appointed that all , that do live , shall dye . the canon is , dust thou art in nature , dust thou shalt be in dissolution by death ; to dust thou shalt return : and saint paul declares this the second time , it is appointed for all men once to dye ; not for all creatures , for good angels live eternally , yet they are creatures , but for all men , once to dye : not that all shall dye but once , for there is a second death mentioned in scripture , which is the punishment of sin , and which wicked and impenitent sinners are condemned to ; but once to dye as a payment to nature , which the best of men are to make then , this the innocent man chuses , because he knows 't is god's appointment and nature's order ; and he yields to it , not onely as 't is inevitable , but as certainly it is lucrosum quiddam . for death to him is ultimum terribilium , that is , of natural terribles ; his pains , his terrours , his wants , his defects , which in life pinch him , then adieu : and therefore to be rid of those incommodations , he chuses rather to dy then live ; for as the poet sayes , better not to live then to live wretchedly : and aeschilus , death is preferrable to a sor did life . o but no man can call death the last terrour , but he , that has christ , the victor of death , and him that hath the power of death , his portion . no man can chuse to dye , who has his heaven here , and must have an hell hereafter ; and therefore because no man delights in terrours ( and death affords such to all but innocent and holy men ) there can be no mallet mori , as death is the ultimum teribilium in any : but a virtuous soul , who knows , when his earthly tabernacle is dissolved , he shall have a building made of god , not made with hands but eternal in the heavens ; this makes him chuse rather to dye then to live so incumbred , as men in nature are , and in sin more : for their life is nothing but a file of sins . and therefore no man can account death the last physician of diseases ; and as he in aeschilas prayes death not to refuse him but to case him , as that , which alone cures incurable diseases , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because no grief follows the dead . no man , i say , can , as the causians in stobans are said to do , weep when men are born and laugh when they dye , but those that are either holy or that believe souls are mortal and leave the body without account of what in conjunction with it they were guilty of ; for if they believe that body and soul must conjoinedly stand in judgement before god , then , if they be not holy men that dye , death is not ultimum but primum terribilium : for death is then onely a victory over terrours , when , as tertullian's words elegantly are , it has the glory of pleasing god , and the prey of everlasting life , this made iacob salute his death with this fiducial calm , o lord i have waited for thy salvation ; and saint paul , i desire to be dissolved ; and hilarion importunes his souls exition from the body ; and saint bernard to long , and to utter his longings , why o lord jesus dost thou not lead thy spouse into thy garden , and entertain her with thy delicates after life , whom thou exercisest with thy sufferings in life ? a good man , faith saint ierome , may be pitied in his life , god hedges his way with thorns , he calls him to combat against principalities and powers ; he has a law in his members that rebels against ! the law of his minde , he is for god's sake killed all the day long , he has a fountain of evil thoughts , and must give account to god of them . these things make their hearts heavy , and mingle vinegar and gall with their nectar ; but their liberata , their emancipation and manumission by death , is their gaude-day : to these death is ultimum terribilium , god has given them a release by it , 't is their rest from their labours , and their passe to their happyness . but death is not so to all ; not to herod who lived in adultery and dyed in murther ; not to marius , who desired life onely to revenge himself of silla his enemy ; not to theophilus the greek emperour , who expressed he could not depart life , till theophobus his deputy in fersia , whom he was displeased with , were murthered ; which done , he dyed , uttering this , neither shalt thou hereafter be theophobus , nor i theophilus ; such as these that dye impenitently and are without hope in their death , do but , when they dye , begin their terrours , their great wo is to come : for them is prepared the never-dying worm , the inextinguishable flame , the unquenchable thirst , weeping and gnashing of teeth , utter darkness , and so forth ; as saint ierom sadly characters it . therefore these are not those whose to dye is choice ; but he that can do that , is alone innocens ille , god's lazarus , whose fores shall have balm , and whose soul shall have comfort in abraham's bosom . this , this , this is the innocens ille , who cryes to the world and the devil as his lord did , what ye do , do quickly ; do your utmost , in spight of your rage i shall be more then a conquerour . he can not but be victorious , whose faith , with reverence i write it , has overcome that iesus , whose passion and merit overcame this , and purchased the next world . by all which it appears , that to dye once is natural to all ; to dye happily , so , as to have death the last of terrours , is peculiar to innocent men , who therefore chuse death rather then miserable life , beause they shall avoid those torments in life which our chancellour terms gehennales furias . gehennales furias . ] tortures are well set forth by these : for as the furiae were acherontis & noctis filiae , as iupiter by them turned a king into a wolf ; so do tortures act savageness upon the noble body of man , which david sayes is fearfully and wonderfully made : and because as the furies , so tortures by either , wrath desiring revenge , covetousness aiming at gain , or lust gratifying pleasure in such cruelty , are cruel to men exposed to them . servius also has made three sorts of these , assigned to three several orbs , dirae to heaven , eumenides to hell , furiae to earth ; tully , after he has smartly treated of these , concludes , he sunt impiae , assiduae , domesticaeque furiae , que dies noctesque parentum poenas à consceleratissimis filiis repetant ; which considered , the ancients did well to term every thing of dread and unacceptableness by furiae : thus tully has his furiae ac pestis patriae : and claudian his tristes furiae : and the poets express the eagerness of love by it , malis furiis actus , furiis agitatus , concepit furias , are epethites , that virgil , horace and ovid give love ; and suctonius tells us of verberibus furiarum exagitari , and so doe other authours of arma furialia , ausa furialia , saedes furiales , ignes furiales , caput & virus furiale ; which warrant our text's resembling of tortures by them : yea , in that our text has added gehennales furias to display them , it has abundantly set forth the terrour and direfull nature of them . and our text seems to make tortures by this , a local hell , an engine of cruelty , and that not to be endured . gehenna is a word adopted into the greek and latin tongues from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a valley south of ierusalem , in the possession of hinnom an eminent iebusite ; 't is called also the valley of tophet , because abused to idolatry and cruelty , for there they caused their sons and daughters to pass through the fire alive to molech ; for which god cursedd its fertility and changed its name : so that at last it became the lay-stall of the city , and every filthy thing was cast on it , this was gehenna in the history . now the sense of our chancellour was , i conceive , to set forth the sanguinariness of torments , not only by furies , but by hellish furies ; which none , but he that is the prince of darkness , and whose odium is versans circa totum genus humanum , could invent . and therefore i repeat my thanks to god and the lawes of england , that though offenders do deservedly dy , when guilty ; yet that their bodyes are not ¶ tortured , but they left to that repose that conscience will afford them , this is christian-like in the law : nor shall they need to be tortured here in their death , who are to be tortured ( if they dye impenitent ) for ever after death . nor surely does the god of nature design to it an hell every where , for since the good man's heaven is hereafter , he may bare with his hell here ; and since the evil man's heaven is here , it seems not just to add to his affliction , to torment him before his time : this the devils cryed out upon , art thou come , say they to our lord , to torment us before our time . and this , god , i am apt to think , did insinuate to men in the patriarchal and pure ages , yea and to the iews his own people ; for though dye malefactours did by god's own judgement , either by stoning or by the sword of the magistrate , or by some immediate hand of god : yet those deaths were quick and dispatching , not protractive of time and augmenting torture . and when the romans brought in the cross , which was an ethnick and torturous death , which the iews in token of malice executed on our saviour because of the torture of it which was inhumane , i suppose they are , in the prophecy of their conversion , and the sorrow that then should seise on their natural obstinacy , said to look upon him whom they had pierceed ; which is prophetical not so much of the spear that pierced his side , as of the nails that fastened his hands and feet to the cross : by all which i humbly conceive the deaths of malefactours by tortures may be thought not so christian , as dispatches of them more calmly , by a quick stroak or sudden throatle , are . but it follows . et nonne princeps tu novisti criminosum quendam , qui inter tormenta hujusmodi , militem nobilem , probum , & fidelem , de proditione quadam , super qua , ut asseruit , ipsi duo insimul conjurarunt , accusare . still the chancellour multiplies instances of the invalidation of torments to discover truth , and the uncertainty of proceeding according to them ; and as before he quoted fringe for suborning witnesses to depose falshood , so here now he produces an example , in the prince's own knowledge , of one that accused a man of honour of treachery ; which he after racking ratifyed to be so , and being racked again , when he found himself unable to live , confessed his accusation false and himself only guilty . and this the chancellour does , not more to shew the danger of relying too much on frail man , who in his best estate is altogether vanity , apt to be seduced by his corrupt heart to deal falsly , and not to be pityed in being punished therefore , as pipus the florentine was , who being sent by the hungarian with great forces to invade italy ; was bought off from that warr , and betraying his trust returned , whom , the king of hungary punished by causing him to have poured down his throat molten gold : i say , not onely does our chancellour produce this example to shew mortal villany , but also to admonish all men that stand , to take heed least they fall . for if obscurity of condition is prone to temptations , what are the ruffles and tryals that mountains , cedars , and grandeurs of men meet with ; o they have need of many prayers that are in high places . the text here tells us of a brave person a knight , miles quasi unus è millibus , a man of a thousand , nobilis ordine , probus mente , fidelis corpore , who is impeached ; probus quasi prohibus , qui se à delinquendo prohibet , as festus descants on it , a gentleman spotless , so wary that he undergoes not the desert of suspicion , whose minde is so moderate and passions so calm , that he seems a pattern of all excellency ; ( for so probus imports , and so authours use it , witness probae matronae for chaste women , not to be drawn aside to wantonness , probus artifex , occasio proba , facinus probum , ingenium probum , mores probi ; yea tully joins sanctus with probus : ) i say , though thus stanch this person accused is said to be , yet he is the man impeached , and that of treachery , who is termed fidelis ; ] fidelis corde , found at heart , all loyalty ; fidelis ore , found in speech , one that regardeth his words , who will not speak evil of his prince , no , not in his bed-chamber , when he is most alone ; fidelis opere , that does every thing that a loyal subject ought , and nothing which a loyal subject ought not : even this man , though thus firm and fixed as that he is notable therefore , ( for nobilis here is quasi notabilis , god having given him virtue and bloud which has made him eminent ; ) yet this man with all these accomplishments is accused . accusare ] is a forensique word well known to lawyers ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 est aliquem ad causam dicendam urgere : and tully defines the nature of accusation pithily , accusatio crimen desiderat , rem ut definiat , hominem ut notet , argumento probet , teste confirmat . concerning accusations and the nature of them tholossanus treats at large . accusers the bulgarians held of old so dangerous , that their legislator appointed no accuser should be heard nisi vinctus & tortus . this i suppose was the condition of the accuser in the text , who yet did so much the more vehemently falsly accuse militem nobilem , probum , fidelem , and that onely to evade the torment ; so ready often is the devil to suggest evil to us , that to ease our selves of one evil we will bring on others greater , which is every day visible , when men to right themselves care not whom they wrong . those two florentine families of the medices and pazzians are examples of this ; for the medeceans having surprised the pazzians , they were so inraged that they vowed revenge though they seemed friends ; and so it was , that the pazzians had contrived assassination of the medicean's even in the presence of the elevated host. this makes me think of an holy life as the best guard , and a self visitation as the safest imployment . he that lives at home and detracts from no body , gives his life much serenity ; which had the wife of the lord bruise done , she might have had h. the third's good favour , and spared her present of milch kine and one bull all milk-white , except onely the eares red , which her lavish tongue of the king made unacceptable to him . de proditione quadam , ut asseruit ipse , duo insimul conjurarunt . proditio ] is a falsehood in friendship , as it were , datio veritatis pro mercede ; and it consisting in betraying a trust is execrable amongst all nations , & deservs extermination from man-kind : tholossanns has a whole chapter about it which i referr the reader to . that , i suppose , which this knight is accused for , is either holding correspondence with the prince's enemy , or promising to deliver up some strength that by commission from the prince he held . this prodition , however it was , all lawes make capital ; and therefore the ac●user , in torments , confesses it against him , that by engaging a person of more note then himself he might have the more liberty : yea , and to possess them with a belief , that he both knew the nature and would discover the truth of his knowledge concerning it , he accuses himself consederate with the knight ; this the varlet did once and again in hopes to evade the torments : but when he saw the torments would end his life , and he ought to be in earnest with death that was in earnest with him ; then he turns his tale , then he begins to be reall , sed demum cum ex poenis illis laesus , usque ad mortis articulum infirmaretur , ] sayes the text , then he does right to the wrongfully accused person ; and his accusation acknowledged by the very accuser to be malicious and false , makes the knight that was eclipsed ten thousand times more orient . so god often rewards oppressed innocents , that he makes their cloud their lustre , and their misfortune their advantage . famous is that story of nicholao rucino , who was set to sea over many gallyes against the genouesses , a tempest arose which cast him into the haven of cariste towards the negropont ; there he thought his design lost , but there he unexpectedly found fourteen gallyes of the genouesses , richly laden with merchandise and provision of warr , lying at anchor ; and knowing them to be the enemy he was to encounter with at sea , he set upon them and overcame them . pisani was cast into prison for his misfortune at pola , but god so distressed the venetians after the loss of chioggia , that they were fain to court their prisoner , and put all their strength under his conduct . there are infinity of these examples , ioseph , iephta , david , daniel , mordecay , and others , who , had they not seemingly been defeated , had never arrived at those notable advantages that god designed them to be aggrandized by . cosmas the incomparably learned italian , when taken by the saracens , and wanting any man of learning to converse with , or any lad inclined to it , bemoaned more that want then his captivity ; yet god so ordered it , that he was brought from his servitude by one who set him to tutor iohannes damascenus , by making whom so great a scholar he got renown enough : whereas in wayes of wickedness god gives no opportunity to advantage , unless he intend to bring the soul off from it by his mercy to repentance ; and that sometimes he does in the last gasp , in ipso mortis articulo , not onely when the body is brought low with torture and restlesseness , but in ipso mortis articulo , in the very 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and the entrance of death on life's quartars , ( for so articulus is by plautus understood , opportunitatis omnes articulos scio : so tully , ut eum suis conditionibus in ipso articulo temporis astringeret . ) then , then , does the truth finde being in the breath of our dying varlet , tum demum , &c. ultimum quoque viaticum , christi videlicet corpus , sumpserit . this is well added to shew the custome the ancients had of giving the sacramental elements to dying persons , which they called viaticum , because the manner was when travellers were entertained in the eastern countryes , where vast desarts were , and they were to carry their provisions with them , there being no inns in the way , there this provision was called viaticum . hence plautus mentions the viatica caena quae datur abituro , like those parting meals we call foye's , as i take it , which men give their comrades when they go to travel . yea viatica signifyed every thing necessary to journey , money as well as meat and drink , so tully , velim videas quid viatici , & quid instrumenti satis sit ; and horace tells us of collecta viatica multis aerumnis , and of largum & liberale viaticum . now this notion spiritualized , our chancellour makes use of to shew the practice of the church , who considering the journey from this to the next world , required provision for it , and that there was nothing so proper thereto as the sacramental elements , did minde the party dying to repent and to cast of all confidence in the world or in himself , and to rest onely on the mercy of god in christ ; and to beseech christ iesus to make him worthy of his acceptation , and to own that sacramental body of his , which the humble and contrite sinner has taken into his body towards the preservation of his body and soul to life eternal : for sure to a worthy receiver great is the benefit of the sacrament of christ's body and bloud . saint bernard thought so when in those words he said , et sensum minuat in minimis , & in gravioribus peccatis tollit omnino consensum . and hence was it that the church , when the minister was satisfyed a sinner was penitent and had confessed ingeniously his offence , did for his comfort give him the sacrament called here corpus christi ; and a purgation of any one from suspicion by solemn taking of the sacrament to oblige the truth of a thing was quittance enough : this was done in the case in hand , the knight , that was by the person racked accused , is upon the sacrament taken at his death , declared innocent and free from the crime he was accused of ; innocentem militem illum & immunem , that is , he is not onely not so much as not at all guilty , but as free , as we say , the unborn childe is . every good man not onely being carefull not to be guilty of evil , which david calls , keeping from the great offence , but from the appearance of evil ; for though with worldly men and loose livers , not to be grossly and actually facinorous is as much as they look to : yet a christian should , as that heathen did say , though in the corynth of this world , to be not so had as the worst is an happiness , yet 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i am a childe of light , i must walk as in the day , wisely and virtuously . this is innocens worthy to be mated with immunis . ] immunis qui nullo fungitur officio , liber ab onere publico , qui vel aetate vel alio privilegio praestare omnia non tenetur , saith festus , and this admirablely reaches the purgation of the knight to be free from all temptation to , or advantage by crimes of treachery ; he was a man of honour and fidelity , who had no putid principle which would truckle under sordid profers : he was where he would be , god had bounded his minde within the verge of providence , and content he was with his station ; and thereupon though he was falsly accused , yet is now worthy to be purged , as one innocent and free from the malice of the charge . tamen ait , poenas in quibus ipse tempore delationis suae fuerat , it à atroces exstitisse , quod priusquam eas iterum experiretur , etiam eundem militem ille iterum accusaret , similiter & patrem proprium . this clause notably shews the disarmation of not ●onely manhood , but even of integrity by fear , the terrour of which , in the penalty that the bodyes of offenders feel under racks and tortures , is not onely probable at some times , but even apt with most to make them say or do any thing , though never so untrue and unjust , to avoid them . this , there is evidence of in this example , where not onely the fear of peter , but the falshood even of iudas seem concentred . an innocent person he accuses , stands to his accusation in tortures , then having no hope to out-live them , confesses the knight innocent and free , and seals his vindication with the sacrament to confirm the truth of it ; yet , for all this , publishes his so great dread of the tortures , that rather then suffer them , he would accuse any innocent man ; nay his own father . o self-love , what a corrasive art thou to holy courage and martyr-like constancy ! how much dost thou abase the nobility of manly minds , when thou courtest to save the shadow to lose the substance ? how treacherous art thou to truth to secure the trash thou valuest above it ? peter , peter , thou pillar of apostles hast left a blot on thee for this , never mortal more obliged by a master then peter ; yet never a master more dishonoured by a servant then christ by him was : thanks to thy mercifull look , o blessed saviour , for peter's tears and his after-constancy . 't was bad enough with peter while he was peter , and it had never been better with him while he had been peter ; but that thou , o lord , hadst some future work for to which thou preservest him by thy courage in him . 't is a rare advice that the knight that dyed courageously according to his prescript ( for that , which charity would perswade me to judge , he believed he ought to do , though the law & state judged otherwise ) quos in id pati vocat deus intendant prosperè , &c. let those sayes he , that god puts resolution into , suffer for him , buckle to their work manlyly ; for they serve him that has times and seasons , men and means at his beck , and will rule and intend them sweetly and effectually to serve his glory . o this playing fast and loose , this being neither hot nor cold , this plannetaryness is the preparatory to tergiversation , 't is prevarication which ends in cowardise ; what a wretch does our instance shew him to be ; that , to avoid bodily torture , would torture his conscience , and incurr hell by an impenitent and unnatural sin . o , self-love is the dangerousest aqua fortis to penetrate , that satan works by ; saint bernard thought the abbot of saint theodorick in danger by it , when to save him some trouble , or to gratifie an humour he quitted his charge : but the father tells him , he had best look to it , that his own ease was not god's burthen . and how ill god took his carriage , who consented to the murther of davye , and under-writ the instrument of the combination ; and yet had the confidence to cause it to be proclaimed at the cross in edenborough , that he was innocent and never consented to the murther , let the records of heaven in due time tell . for though it may have warrant from reason of state for the venetians , who kept treveso forty years , and lost it most unwillingly to leopold of austria ; yet when their enemy had it , the venetians so dissembled their regret , that they sent embassadors to leopold upon congratulation of his welcome and entring into it : yet truely it is in the nature of the thing , but a worldly bubble , which being insolid , teaches men not to rest on the favour , or dote on the felicity it promises . give me the stanch virtue that will not do a sordid illiberal act to better it self , but had rather have cato's chains in prison then nero's scepter on the throne ; for when a man is more led by sense then justice , what does he not dare to do that is facinorous , so it be but accumulative to his ends : hee 'l not onely accuse innocent persons , sed patrem proprium , ] the sacred genitor , who did , to give him being , patefacere semen , impart himself . his father , that religious name , unde omnes dii patres vocabantur , faith servius ; father , a name of honour , to which is entailed every dramm of duty and respect imaginable , to the honour of which , the first commandment of promise is made : yet , even this father , not onely for age , but even in nature , fear of the rack , and hope of avoidance of torture , would induce to accuse . nec verò ipse mortem quam tunc metuit , evasit . sed demum suspensus , tempore mortis suae ipsam militem purgavit ab omni crimine de quo dudum defamavit . all that i observe from this clause is onely , i. curse of god on cowardise ; many think to avoid tortures and death by fallacious complyances with wickedness : and god when they have shewed their naughtiness , has indurated the bowels of those they thought thereby to oblige , so that though they have loved the treason yet they have hated the traytor . for though confession of guilt be a due from every christian at all times , and at death especially , that those that hear may be warned and admonished to live better that they may dye better ; yet , when a man is near death to be so yarc of life , as to confess or rather fancya nothing and set it up as something , to lengthen out a few minutes of ease and life by what is indulged to it , as supposed truth , is to dishonour god and deserve no attainment of so cursed ends . . that though life conceal much of truth yet death often reveals it , demum suspensus , tempore mortis suae militem purgavit . 't is time to speak truth to men when men cease to a malefactor , as they do when he is judicially dying ; then cryes he for his confessor , and decryes his sewd companions ; then he execrates his debauchery , and exclaims on his costly idleness which made him facinorous , and for the punishment whereof he is a sufferer . 't is good and welcome news to charity , when a sinner converteth , and concludes well an ill life ; and therefore the angels in heaven rejoyce for a sinner that repenteth , because not onely he by repentance puts himself into the arms of mercy , but also desists from that enormity which illaqueates and makes unhappy the life of many innocent holy ones , whom he traduces and misrepresents . there was not in all scotland a more brave and pious noble man then archibald , lord of angus , in his time was ; yet he dyed by incantation and witchcraft : nor was there here a braver knight then this in our text , yet he was accused of treachery , and not acquitted by his accuser till at the gallows , and then the false accuser had his reward ; not that which the priest by order of the star-chamber in anno . had , who was set on the pillory and burnt in both cheeks with an hot iron with the letters f.a. which the paper over his head expounded for false accusation ; or as the other in . was , for accusing one of the court of common pleas of treason : but by hanging at the gallows by the head while dead , and then cut down and buried without christian burial . taliter proh dolor & quam plures alii miseri faciunt , non veritatis causa , sed solum urgentibus torturis arctati , quid tunc certitudinis resultat , ex confessionibus taliter compressorum this clause affirms that which i affirmable of all relating to erring man , to wit , that nothing he fayes or does , is infallibly to be concluded upon further then it is regulated by a divine principle , which regards truth and fears falshood as a provocation of the pure god , who is the revenger of it . nor is the argument here applyed more strong against tortures then any other tryal wherein men are instruments , who by being possible to be corrupted , may so be under juryes as well as tortures ; onely this it shews that then the excuse of the invention of torments is detracted from , in the ineffectuality that they prove to the discovery of truth , which , notwithstanding them , is concealed ; and justifies lighter punishments ( though mortal ) to be both lesse barbarous , and as much , if not more effectuall then those . for whereas in france , where torments are , trust is altogether to the acuteness of those sufferings , as if the terrour of them would work enough without any softer applications ; with us in england because our kindes of punishments are lighter , we do apply religious arguments to the conscience , and lay home the terrours of god to sinners ; and because the magistrate comes not to encounter this goliah of desperation in his own strength , in which no man shall prevail , but with spiritual weapons which are mighty through god ; therefore god makes them prevalent to work contrition and confession . piety is the noblest and nearest way to politique permanent issues and successes , nor are statists ever more wanting to themselves then when they neglect the spiritual weapons of the church to second the carnal ones of the state. the bottom of any villany will sooner be founded by an holy and serious divine's humble prayer , serious conviction , prudent encounter with a wicked conspirator , then by all the terrours and allurements whatever ; because satan and his own corruptions incrust him against the one , but against the other which is god's engine and key by which he turns all the springs and wards of resolution and secrecy , they are invalid : this is evident in experience , not onely in many examples with us , but also abroad ; the history of venice has a notable story of beltrand a popular man in that state , who was privy to the conspiracy of phalerio against the government , whose conscience so troubled him that he revealed it , brought the conspiratours to execution and delivered his country . and yet how hard is it to perswade the world that piety is the best policy ; when as , if men would observe it , there is no folly like that of the worldling , who serves a master which cannot support him , but leaves him as saint ambrose sayes , in an helpless and hopeless misery . and yet the world is a goad in holy men's sides , and often a snare to them ; nay , ever so , when they love it above their boundary , when they take it as their friend , and delight in the repasts and umbrages of it , when they suffer it to corrupt their moderation , and to tickle and hallucinate their passions , and by them surprised , to engage them to foedity . there is a notable instance of this in master mountgomery the minister of striveling in scotland , who was a fierce a man against episcopacy as any his contemporary ; yet shortly after this man accepted the bishoprick of glascow , which he fordidly came to by making over to the duke of lenox ( who was his patron thereto ) the land of the see , which the duke had a minde to , and by taking in liew thereof a thousand pound scotish , to be paid by the duke and his heirs ; to which , i had almost said sacrilegious , condition , no clergy-man in scotland would yield , and by yielding have the bishoprick , but onely he . in which frailty we are taught to mistrust our selves , and to look on men , as temptable and various ; and therefore the text's inference is good , quid tunc certitudinis ex confessionibus taliter compressorum . ] for men not being themselves when they are in pain and under pressure , the oppression of it often making a wise man mad , there is little heed to be had to what is said or done under the torture of it . nor has god given certitude to any thing that is extrinsique , for every thing being subject to his interposition , there is no certainty to be concluded , but that he will rule all for the best of his glory and his saints good ; but as to outward things , alas they go cross , and are vicissitudinarious , and that by the special appointment of god ; nor can any thing be depended on in them , or collected from them , but what is subject to contingency : men intend one thing and god disposes another ; states make lawes to one end , but god nulls those enactions by his occult pleasure , which alone must stand : yea , if counsels and lawes are never so well made and laid , if god do not reveal the seasons and opportunities when to set them on foot , and whereby to improve them ; all the wisdom of law-makers is defeated . doria the genovesse was a brave general and got a mighty victory against the venetians in phalerio's dukedom , which had he prosecuted , as he might , and come directly to the city , he had utterly determined the venetian government and power : so had the genovesses after the taking of chioggia , but god gave them no certain knowledge of the event ; and so they missed the improvement of the victory . no more certainty is there of the truth of that which a tortured person confesses to avoid his pain , then there is of that which may , and may not be . tortures are like physick , on some trinid and easy natures they work fully and readily ; but on others they must have notable acuteness to stir them : and when sink they do , 't is their bodyes and nature , not their malice and venom that yields ; confess truth they may , but as often they confess nothing at all ; or if any thing , not that they should : and therefore the text sayes , quid tunc certitudinis resultat , ex confessionibus taliter compressorum . caeterum si innocens aliquis non immemor salutis aternae , in hujusmodi babilonis fornace , cum tribus pueris benedicat domino , nec mentiri velit in perniciem animae sue , quo iudex eum pronuntiat innocentem , nonne eodem judicio iudex ille , seipsum reum judicat , omnis saevitiae & poenarum quibus innocentem afflixit ? this clause is brought in to shew how instrumental some powers of the world are to torment christ's innocents , who are for the most part the onely sufferers in the world ; at least in those exquisite torments which are the effects and instruments of the implacablest malice . for as lenity in man is a ray from god's oceanal mercy , so the contrary is a con sectary of god's absence and retraction from man ; and when the spirit of man is simply natural , and has no adjunct good which sweetens and abates the tartness of its peccant rage ; then is it virulent and demoniacally rapacious to make others as unhappy as its malice can , and to oppose its self to whatsoever is not as impetuously depraved as its self is . this being the rise of antipathy , the road to persecution , tortures , the emanation of it , fall to no lot more directly then to god's lot , whom the world is said to hate , because it hated me ( saith christ ) first , and because they are not of the world ; therefore they do not onely speak all manner of evil against , but act all manner of evil to them , specially that of making their lives unquiet and their deaths bitter to them . the proto instance of this in the latitude of its inhumaneness is here borrowed from daniel . . where the three children , shadrach , meshach , and abednego , more timorous to sin against god then to incurr the king's displeasure , refuse the adoration of the idol , and accept the punishment that nebuchadnezzar annexed to the recusancy thereof : and that it may appear , that not humour and singularity , but zeal and conscience led them to this resolution ; it is remarkable that they do not revile the decree , nor reproach the power under which they suffer , but as christ their head is said , like a lamb led to the slaughter , not to open his mouth either in complaints , or denunciations of judgement : so these confessors , his members , shewed no renitency , but willingly embraced the suffering , trusting in god , whose champions they were , for the issue . alas ! they knew the iews were envyed by their chaldaean masters , and that they had purposely invented this trap to catch them in ; whom having ruin'd , they thought the hebrew religion with the chief assertors of it would cease and all become ethnique , as chaldaea was : but god's thoughts were otherwise , he suffered his to be led , not onely to , but put into , not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the iron fornace , so rendred ab excidendo , seu fodiendo , because the iron oare is digged out of the earth ; nor 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the baker's oven , wherein bread is baked ; nor 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the tilekill or brickill ; nor yet 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a founders fornace to melt metal in ; though these all are exquisite fires and intense in the torment they put those , that are cast in them , to ; but 't is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a chaldee word emphatique to express a chaldee punishment , into a fornace of fire seven times hotter then ordinary fire , that is , into fire purposely hightned by the materials of subtility that feed it ; into this fire , which was the creature of ingenious cruelty and sinfull malevolence , were the three children cast ; yet for all this , they neither prayed mitigation nor relucted the chearfull acceptance of it , but having a clear conscience of their innocence and a just confidence in god's power , they put themselves upon the flames , and in the mercies of the almighty they did not miscarry ; but not onely had security from the flames exustion , yea or accession to them , but had also the association of christ iesus to asswage the fury of the fire , and sweeten that intended cross into an honour by his compartization with them ; as the story read at large will more accurately inform the reader . now this our chancellour makes use of to shew the force of passion , however it be objected ; for as love to idolatry , and indignation not to see it propagated , moved nebuchadnezzar to make the decree , and the chaldaeans to inform against the three children as contemners of it , and criminal for so doing ; so love to god , and confidence in his mercy and power , kept the three children from complying with the text's terms , mentiri in perniciem animae suae , ] and made them chuse rather the fiery fornace then to worship the image : whence our chancellour collects , that to sentence an innocent is so great a crime that it not onely deserves from god a sentence of retaliation , according to that of our lord , for with the same measure ye meet to others , it shall be meeted to you again ; as befell the busie informers in daniel by judgement of darius ; but it also makes such a torment in the conscience of a judge that condemns him , that he never or very hardly sedates and abates it ; but in the text's words , seipsum reum judicat omnis saevitiae & poenarum quibus innocentem afflixit . and how much a prudent natural man will decline the guilt of bloud , innocent bloud , we may see in pilat's case , who though he was cunning enough to make the best of his deputy-ship , and knew the way to cajoul the iews , and to render them supple to acclamation of him ; yet , when his wife sent to him word of her dream ; wherein she had discovery from god , that the prisoner to be brought before him was a just man , and that the iews thirsted after his bloud ; which judicially they could not come at , but by pilat's sentence and delivery of him to them to be crucified : when , i say , in the , , and . verses , pilate had done as much as he cunningly could , to blunt the rage of the prosequuting iews , and to weaken and evirtuate their evidence ; and yet for all this , obstinate they were , being set on by the chief priests and elders : when all this , i say , was done , and yet they would not be discouraged , then he took water and washed his hands before the multitude , saying , i am innocent of the bloud of this just person , see you to it , v. . which , though i take to be no absolution of him , yet declares that he thought , that to judge innocence to death is to draw judgement on ones self , and to bring hell into a man's own conscience ; which david felt so sore , that he cryeh out to god , that of all mercies he would bless him with delivery from bloud-guiltyness . and therefore our chancellour , in terming cruelty pernicies animae , ] writes emphatiquely here , as every where ; for pernicies comes à pernecando ; and the latines to shew the direfull nature of it , couple it with pestis : so lucilius , hostibus contra pestem perniciemque ; and terence , eripite hane pestem perniciémque mihi ; and tully , pernicies omnium adolescentum perjurus pestis ; so of cataline , cum tua peste & pernicie ; i say , the chancellour in this applause of honest recumbency on god , rather then to provoke him by lying in perniciem animi , ] does commend , the not onely holy constancy , but wisdome of good men , who thereby save themselves much horrour ; which , their lukewarmness would occasion in the remorse of their conscience for it . o there is no danger men run into like that which they occasion themselves by forsaking the truth , and trusting to lying vanities , 't is the fog in which all confidents miscarry , and bring themselves by sin to shame & sorrow . religion , scripture , and the lawes of the land , are the onely guides of our duty to god , men , and our selves , and he that walks according to these in the moral duties and just prescripts of them , shall neither err in judgement or sink in reputation ; but shall dare to doe as that generous , learned , pious , prudent , stout * zamzummim , as learned d. collyns termed him , did , to a person , and in a time , when to counsel to give to caesar the things that are caesars , and to god the things that are god's , was to bid him undoe all that he had unduely done : i say , he , that is thus innocent , shall have from god the grace & favour thus to doe , and not himself be undone for so doing . whereas , when men are led by private spirits and tickles of vain glory , vile ambition or vage covetousness they must expect pernicien● animae : thus a prophecy and a vision , which two priests , jointly averred they saw concerning the duke of buckingham in anno . his obtaining of the crown lost the seduced duke , and the like lost others . and had that reverend chief-justice ( for so , while he was himself , he was ) sir william hancksford , temps . e. . not more feared men's wrath , then trusted god's power and mercy ; he would not have contrived his own murder to avoid the danger of difficult times : nor sir iames hales in queen mary's time . 't is a good rule saint ierom practised , thou , o lord , the searcher of the reins and heart , knowest , that i did not therefore deny , least i should suffer ; but therefore i would not lye , least i should sin ; for if once truth grow cheap , and men learn the sinfull subtlety to own her no further then she may serve their ends , and credit their designs and enterprises ; then they care not to make lyes their refuge , and to blemish innocency rather then suffer the abortion of their project . 't is a rare passage of the late grand arch-prelate of our church , who in many things was prophetical , where the foundations of faith are shaken , be it by superstition or prophaneness , he that puts not to his hand , as firmly as he can , to support them , is too wary , and hath more care of himself then of the cause of christ ; & 't is a waryness that brings more danger in the end then it shuns , for the angel of the lord issued out a curse against the inhabitants of meroz , because they came not out to help the lord against the mighty : thus incomparably he . 't is good therefore to do all things with respect to justice , for the day of retribution will come , and then the lex talionis will be revived ; which , they need not to fear who do righteous things , and they shall be unable to abide or avoid who do the contrary ; the consideration of which wrought so with antonio venieri the duke of venice , that he did a notable justice on his own son when an offender ; for ludovico his son being in love with a senator's wife , there happened some cause that he and her husband fell out , and ludovico caused horns to be hung up at the senatour's gate ; the insolence of that injury coming to the dukes ear , so offended him , that he caused his son to be imprisoned , where he remained till he dyed , a rare president : and such , as if all judges would follow , they would not need to be strictly tyed up , which they being not in the civil lawes , wherein much is left arbitrary to them , as the learned doctor ridley has very judiciously collected the instances to my hand ; i presume there may some reason be for some to doubt whether judges in that law may not be men and err in judgement by having the opportunity of that latitude ; but that they have transgressed that way is no part of my charge to inquire , or of my work to blazon : i am a great honourer of the learned civilians , and shall ever in my orbe further all civility to their renowned profession ; as owing my self much enriched from the light i have had and collections i have made out of tholossanus , budaeus , hopper and grotius , four matchless civilians , which i think fit here gratefully to remember : but i proceed . o iudex , quibus in scholis dedicisti , te presentem exhibere , dum poenas luit reus ? executiones quippe judiciorum in criminosos , per ignobiles fieri convenit . this apostrophe our chancellour uses to shew the tenderuess of his soul , which , though it can serve justice in pronunciation of its sentence on malefactors , yet cannot abide the view of that execution it judicially awards criminals to ; and this the good man thus sets forth to call men to tryal , whether they have bowels of compassion to manhood , when they have resolutions of vehemence against vice the abusion and dishonour of it . for since it is tragical to behold sanguinary executions , and custome is apt to naturalize cruelty to men , the chancellour dehorts ( as i think ) in this expression all judges from seeing execution of their sentences ; least they should lose that softness and lenity which the law intrusts them to express , where not derogatory to equity and prudence . and therefore what saint ierom said of hylarion in another case , i shall apply to this ; the profound judgement of the judges , the diligence , impartiality and calmness they express in their hearing , examinining , and judging of cases , i admire not so much , as to see and hear them do this ; because they know not to do it is to derogate from god and the king , whose delegates in judgment they are : yea , not to do it is to contemn the glory of doing good to mankinde . and thereupon our chancellour looking upon cruel judges as great monsters , calls them to account to him whence they learned their terrible principles , and how they thought they should give god their answer for such misuse of his indulgence . o iudex , quibus in scholis , saith he . quibus in scholis ] all learning was in scholes from the teaching of the master or professor in them ; and scholes were the repose of learned men , where they did seat themselves to meditation , and institution of those that applyed themselves to them for learnings sake . etymologists say schola comes from the hebrew 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , vacavit , or otio vixit ; because when men had wearyed themselves with travel and peragration , their quiescence from that toyl was called their schole , that is , they sat down to distribute to others their collections , and to propagate their acquirements to the good of succession . the holy text tells us of the scholes of the prophets ; berosus and middendorjuus story the assyrians and egyptians to have scholes ; the phoenicians also who had colonies of trade and correspondence all the world over , traffiqued also for letters , berythus amongst them was famous for it and termed pulcherrimam & l●gum nutricem ; and among the grecians scholes were so frequent , that all greece was almost nothing but a great schole , though athens was called civitatem linguatam , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the eye and choice center of science , because the notedest masters resided there , and from thence dispersed themselves into all the world : so that scholes were the darlings of all nations . hence read we of the corinthians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , where dyonisius the syracusan tyrant was professor after his banishment ; the rhodian gymnasium , to which pompey the great was so great a benefactour ; the ¶ scholes of alexandria which strabo remembers , and from whence some say the name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by way of eminency was given to alexandria , as those of athens did the name ● as● to that ; the carthaginian scholes in which tertullian was professor , saint cyprian a rhetorician , and saint augustine a student ; the constantinopolitan scholes which brought up saint basil the great , and iulian the apostate ; these , added to plato's academas , aristotle's lyceum , zeno's stoa , the cyniques cyrosarges , the academiques , peripatetiques , stoiques , and epicurean scholes , make a large muster of learned forces , and a strong battalia against barbarism . but if to these the scholes of later times be added , there will be such an appearance of learned liberality and princely greatness , as but to mention them will be the work of a life ; i shall therefore referr my reader to those excellent authours that have written on them , as middendorjuus , hospinian , sturmius , l●dovicus vives , gatzonius , and multitude of others , which fabian , iustinian , and dra●di●s , in their bibliotheces mention ; yea , as not the least of all to iunius his academia , and hold my self excused in writing no more of scholes here , because the summe of what i can briefly think of pertinent hereto , i ( though very unworthy , yet i thank god i dare say it with a very great and just love to learning and religion ) did (a) apologetically publish in those tragick times , when they both were in hazard of (b) naufrage ; and to the prevention of which , god knows , i therein did my utmost endeavour : to that mite then , which god ( i am assured ) accepted into his treasury , from my humble and honest zeal , for those then orphans , do i referr my excuse for no further enlargement here , humbly beseeching god , that as he by his grace then excited , and in that weak measure enabled me to that service , which no man can think had any advantage attending it , unlesse it were that matchless one of being valiant for the truth : and , (c) expressing it by conjuring him , that then had the power , as he was a gentleman , to doe by the counsel and information of the addresse , as he thought in his conscience god expected from him , that had the opportunity to doe good or evil , as he had ; ) so he would graciously assist me in this humble undertaking , that from him i may be blessed with deliverance from the strife of penns and tongues : this i here introduce not superbly , as if therein i thought my self to have deserved of learning , nothing lesse , ( for i know , that my undertaking was but my duty ; and that which god required of me , whose uninterestedness in the actuality of contests rendred me less subject to the exception of any party then some others were . ) but to notifie to those honourable , learned , and worthy persons abroad , that though england had too many furies in it , who breathed out ruine to all that was sacred ; yet , that there were many in it also , that were true men to the king , his crown and dignity , faithfull to the church of england her order and discipline , and cordially affected to learnings lustre and increase : but of this , if i have said too much i crave the reader 's pardon , and proceed to what our chancellour prosequutes , to wit , the redargution of those persons , not onely that fatally invent , but that judicially promote tortures and torments . these , the good and grave oracle interrogates where they learned that incompassion to be present at tortures , and to see their fellowes in manhood tortured , te praesentem exhibere , dum poenas luit reus ? for though the judgements uttered by them against offenders be the lawes justice languaged by the judges who are called the lex loquens ; yet the executions of them , sayes the text , per ignobiles fieri convenit . ] since though such greatness , as carrario's , was delighted in giving those he was offended with to wilde and ravenous dogs , which he kept on purpose to devour them ; and others , whom he called to his hall to speak with him , he tormented with two scorpions which he had for their dispatch ; though parasites ' the mother of cyrus the younger , pleased her self to give men that which should breed worms in their bodyes , which by degrees should eat them up , and yet protract their miseries upshot ; and volesus augustus his pro-consul caused three hundred men in one day to be slain by his command , and walked through them all agore , crying out , o kingly sight ; and macrinus tyed dead and living men together till both were alike by the stench and vermine ; yea though butcherly claudius's can look upon tortured persons and take pleasure in their afflictions , and those lamentable outcryes , that by reason of them , they express ; yet none but monsters can thus do . executions , though things as necessary in bodyes politique , as cuppings , lancings , scaryfyings , amputations in bodies-natural , being the delight of those that are not of relenting bowels ; which god himself expresses to us in that representation , which his wisdom , by the prophet's pen , records to our learning : when he complains his people were bent to back-sliding from him , and though his mercies called them to the most high , yet none of them would for them exalt him ; what provocation would be greater then this , yet he expresses himself by a pathetique of undelightedness in afflicting them proportionably to their demerits ; how shall i give thee up ephraim , how should i deliver thee israel , how shall i make thee as adnah , how shall i set thee as zeboim ? my heart is turned within me , my repentings are kindled together , i will not execute the fierceness of mine anger , i will not return to destroy ephraim for i am god and not man , &c. and if the good angels do rejoyce in heaven at the good of man , surely their philanthropy does indispose them to be instruments of his evil on earth any further then god's glory and his saints good are concerned therein : although therefore we read in scripture of angels of the lord that execute the viols of his wrath , and expresse the grandeur of his power over the contumacious and refractory world ; yet are we not presently to conclude they are alwayes the good angels that do it but mostly the contrary , executiones quippe iudiciorum fieri convenit per ignobiles , saith the text , that is , by lapsed angels that hate god and every footsstep of his image , and by men who are unworthy to live , and therefore are made the dispatchers of other wicked men out of life . hence is it that the law both common and civil make those executioners or headsmen , who are condemned persons , and who purposely have their lives given them that they may serve the publick in that necessary though infamous office ; which how hatefull it is all men know that know any thing ; as , not onely the common taunt gives us to understand , when rude men say scornfully of any man , they call him an hangman , but also all authours testifie : whereupon they are called ignobiles , which authours conjoin with vilis , ignotus , abjectus in contemptum ; so tully mentions (a) peregrina facies videtur hominis atque ignobilis ; so inglorius & ignobilis a little after ; ignobilis profaece populi , saith servius ; and virgil mentions ignobile gramen for that which is a weed and grows in every ditch ; so that not without cause is that office carnificis , quasi faecis carnis , of execution said to convenire ignobilibus , for they are onely fit for it , and them it fits as directly as a thief does the halter or the halter the thief : for persons of any whit raised spirits and sublimated ingenuities abhorr imployments of vexation and violence , to which the curse and reproach of vulgarities is appendant ; and therefore some of the emperours made lawes to secure the publick executioner from that violence against , and detestation which the people had of him . and if , notwithstanding he were the executioner of justice , they had such an abhorrence of him , how greatly would they have banded against him , had he been as calergo that base greek was , who murthered with his own hand all the brave venetian gentlemen in candia ; and how joyfully would they see such an one rewarded as he was , who being taken by the venetians was thrown down from the top of the palace upon the point of swords , and being rent into diverse pieces was cast upon the dunghill . for if the sun in heaven did retreat its oriency , as ashamed ( as it were ) to lend its light to deeds of cruelty , as in the case of our lord on the cross ; if a tender spirited vespassan justly adjudged no malefactor to death but with tears and in compassion to virtue , which otherwise could not be defended ; if frederic the second made a law against wrecks at sea , as thinking them not fit to be royal boons , when the owner was ruined by their naufrage ; if our henry the sixth of england was so milde and mercifull that he could not endure the quarters of a traytour to be hanged up for him ; if these executions are so displeasing to brave spirits and christian generous mindes , those , that take content in acting them , and shew a more then ordinary readyness to accept the office of execution ( though a very necessary one in any government ) may well be accounted ignobiles quasi non notabiles , unless in the sense herostratus was for his wickedness . for as it followes . non enim per angelos sed per daemones exequi facit dominus judicia sua reddita in damnatos . this clause confirms the former , for angels are philanthropique , and by reason of that do not onely convey to the souls of those they inspect discoveries , secundum intellectum illuminationis , which they are capable of , but they do serve man , and the elect chiefly , by an exact vigilancy , non ex debito servitutis , sed ex effectu charitatis & ordine legis divinae . now these which are described to stand before god , and to do his will , the pursivants and jannisaries of his puissance , these are never instruments of torment to the damned , for they are without their pale and charge ; the evil angels being the plagues of evil men : but sometimes they are commissioned to reveal to evil men good things from the counsel of god , good to them which in his good time he will discover ; and to the opposition of which , he , by it , blunts the edge of their malice and vehemence . for though the knowledge of angels is too mysterious for our viatory state , and the ambition of the scholes has displayed it self somewhat too curiously therein ; yet this , i hope , i may safely add to what heretofore i have delivered of angels , that , they are favourites of god , and have , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the first discovery of god , and make known to us , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the things that transcend our nature , and are of consequence for us to know ; and being so beneficial to us , ought to have an awe in us towards them ; as those impure spirits , the apostate angels , which are called here daemones , have over those on whom they are said , judicia reddita in damnatos exequi . daemones . ] this word , in the latitude of its criticalness , is subject enough for a whole volume , many having taken great pains and shewed much learning concerning them , by name (a) andre as caesalpinus , steuchius , crespeti●s , pselius , (b) gomez , and may others ; my humble aim shall onely be to make way to the chancellour's intendment , by a short consideration of daemones as antiquity notioned them . the greeks by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quasi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , understand plato's gnarus , sciens , intelligens ; the pythagoreans thought the air full of souls , and those they distinguished into daemones & heroas ; and ficinus tells me , that they had an opinion , that to every one a daemon is given for good , which occasioned the pythagoreans precary sonnet to iupiter , that either he would be graciously pleased to deliver them from the evils they were subject to , or direct them to that daemon they should depend on for their tutelar ; the stoiques called these daemons 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and saint augustine out of plato divides the rational soul into three partitions , that of the gods , that of men , and that of daemons ; to these daemons he reserves the middle residence , nam deorum sedes in coelo est , daemonum in acre , hominum in terra , perhaps resting on the literal sense of saint paul , who calls the devil the prince of the air ; to which ficinus suffragates in those words , in daemonibus positum est propinquum corporei mundi hujus imperi●m ; which does not onely point to that notion of their power as they are superiour , but of their influence as they are the genius that inlive●s , propends and inclines nature to its proper specifique expression of it self , as that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which carryes to good and evil ; which epicharmus intended to us in those words , ' o 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and tertullian in those words , nescitis genios daemones dici ; and lactantius when he sayes , hi spiritus sibi geniorum nomen assumunt ; these , and infinite such like passages out of the ancients do inform us , that as the eudaemons were tutelary of men , so the cacodaemones ( which are the daemones of our text ) are the executioners of god's severity on the godless world , who are not onely pestered with their ill motions here , which porphyrius expresses by calling them , ● 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the causers of plagues , barrenness , earthquakes , drougths , and other evils in this world , but shall be hereafter with that fire and torment which they are condemned to with them under the name of the devil and his angels , so sayes our lord , go yee cursed into everlasting fire prepared for the devil and his angels ; which confirms the chancellours positions , that the executions of god's judgement in damnatos , that is , on impenitent malefactors , whom justice has doomed to an eternal exile from god's comfortable presence , is by these daemones performed , which the scripture calls the devil , who is not onely himself an evil spirit , but the cause of all the evil in our spirits , which by his temptations and craft he lurches into his power ; and therefore saint augustine's advice is very good , magna dei misericordia necessaria est , ut nè quisquam cum bonos . angelos amicos se habere put at , habeat malos daemones amicos fictos eosque tanto nocentiores quanto astutiores ac fallaciores patiatur inimicos . for as there is no good action that men , whether christian or ethnique , do , but is , as phavorinus sayes , by god's leave , and by the concurrence of some good angel impelling and perswading to the performance of it ; nor did curius , fabricius , coruncanus , calatinus , metellus , l●ctatius , cato , scipio , laelius , or the rest , do any heroique deed but by this motive ; and as that seeming marriner , who anno . took the charge of above . matrons and noble virgins upon the siege of ptolemais , and was by them offered all the wealth they had , and which of them he pleased to take to wife , so he would transport them any whether from the sultan's rage , which he freely did , landing them in cyprus , and that done , could not be found ; as , i say , i can judge this to be no lesse then a good angel , that officiated in so charitable and christian a work ; so do i veryly believe that the contrary works are often the deeds of daemons , devils or evil spirits , whom god permits to afflict the world with disasters for their rebellions against him ; and who , in the tormenting of them , are the more diligent , because they are desirous to make others unhappy as they themselves are , as * saint augustine well notes : which gives me occasion to minde my self and others of that duty which our lord enjoins us to , ¶ watch and pray that you enter not into temptation . for though satan has a direct power over the damned , and god gives him a latitude of commission against them , exequi judicia , ] to throughly torment them ; yet he can do little or nothing to the godly without special concession from him whose iewels they are , whom he tenders as the apple of his eye , and against whom he will succeed no power that is laesive in any degree , but only what advances his own glory and their good . nec vero in purgatorio cruciant animas quamvis praedestinatas ad gloriam angeli boni sed mali . this our text-master brings into imponderate the argument he uses , that executions are by ignoble persons ; since not onely evil angels or devils do torment the damned in hell , but even they , and they onely doe doe what is of terour and torment in purgatory to the souls of god's predestinate . this is his sense , which i lift not much to write on because it seems to me an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 of his religious mistake more then any serious matter on which to ground an argument . for though i honour baronius , who makes the doctrine of purgatory ex apostolica traditione ; and bellarmine , who undertakes proof of it from the scripture of the old testament , c. . from the new testament , c. . from the councils , c. . from the greek and latine fathers , c. . of catholique consent , c. . yea though (a) bonaventure , (b) cajetan , (c) durand , (d) aquinas , (e) alexander halensis , (f) guilielmus parisiensis , and multitudes of other doe assert it ; yet truely , saving their learned and venerable names , purgatory to me ( in their sense ) seems but a fiction , or rather a politique engine to bring the gold and silver of credulous and well-meaning men into the pope's crucible . i do readily and humbly own my lord iesus the true purgatory , he it is that purges us by his bloud from all sin , and presents us spotless to his father ; he it is in whom that promise of god , though their sins be as red as scarlet , they shall be made white as snow , is yea and amen to his saints ; and under him i blesse god for another purgatory , afflictions , which god in this life mercifully sends his , and by the merits of iesus this purgatory leaves us better then it found us . these purgatoryes the reformed and glorious church of england , my holy mother , will acknowledge , and i according to her declaration of the truth therein ; but purgatory in the romish sense , for a third place between heaven and hell , and for a detinue of those that depart hence between the joyes of heaven and the torments of hell ; this i cannot understand : for our lord , who knew all things , delivering it so plainly , come yee blessed children of my father inherit the kingdom prepared for you from the beginning of the world ; and , go yee cursed into hell-fire prepared for the devil and his angels : nor in the apostles dayes is any mention made of purgatory . i say , these being the onely two states after life by him mentioned , the third is by me suspected , in their sense , for an invention of subtlety , to trepan the world into a purchase of pardons and indulgencyes , and with the gain thereof to support the state of that papal hierarchy , as well in the head of it , the pope , as in the toes of it , the priests ; both which finde a great advantage from this doctrine , and the popular assent to it : for , as the case now standeth , saith our incomparable iewel , and as most men think , the pope could be contented to lose both heaven and hell to save his purgatory . waving then the belief of the place , there is no cause to write much on the cruciant animas non boni angeli sed mali . for though i yield the souls of evil men have a cruciation wherein their souls really are tormented , poena damni & poena sensus , both in the loss of god's vision , and in the sense of inexpressible terrours , and intolerable and unendable torments ; yet can i not see ground to believe the souls of holy men , who are the purchase of christ's bloud , should be deprived of the felicity , that is the fruit of it , one moment after their dissolution : nor would our lord have said to the thief , this day shalt thou be with me in paradise , had there been any interstitiary state as purgatory is made . in the mean time if the souls of the godly are in this life tormented , 't is by the permission of god without which no evil angels can accede them ; nay , not onely does god keep the souls of his under his sovereignty , as that jewel in their bodyes which has the oriency and is the center of reason , which porphyrius allows it to have ; and trismegist tells us god loves , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as his own issue , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the character and representation of god ; the oracle of apollo , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , part of god , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and such like expressions , which phavorinus has collected to the souls aggrandization : i say , god does not onely reserve the souls of his to himself , as exemptions from evil angels , but even the bodies in which these souls are . for though i know the saints of god are afflicted in this world by satan and his emissaries , evil men , and all the imaginable practice of their rage they execute upon them ; yet is this both for the kinde and measure onely so far as god by it appoints consequence of good to his ; and therefore good men are by mortification and abnegation , cruciare animas here , and then they shall not need the purgatory that is attended by evil angels : nay , god that has predestinated them to glory has so manifested his benignity to them , that as they have no cause to love him lesse then the most they can , so need they not fear his gracious conduct of them ( humbly and holily demeaning themselves ) to their eternal accomplishment . concerning which predestination to glory , though much may be wisely and worthily written , yet i forbear to venture on it , the knowledge of it being too wonderfull for me ; that being my rule which seneca cites from aristotle , that we never ought to be so modest in any thing , as in that which concerns the counsel and secrets of god , which this predestination being , i dare onely adore it , remembring the sovereign command and counsel of authority , which sober lay-men as well as clergy-men ought to observe , since secret things belong to the lord our god , but the things revealed to us ' and our children . maligni enim spiritus sunt per quos dominus in hoc mundo miseris tribuit malum poenae . this the chancellour proceeds in to fortifie his argument , that executions are convenient to be done per ignobiles ; and as he in his believed purgatory makes the evil angels to be there the tormentors , so here , sayes he , evil men are the plaguers of mankinde . now these evil instruments he terms maligni , a word that has emphasis in it , gnus the termination implying so much as from benè benignus , from digné indignus , so likewise malè from malignus , which carryes not onely the sense of malus which critiques derive from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , debilitavit or infirmavit , as if the evil represented by it were malum defectus onely ; in which sense sealiger tells us , souldiers that were cowardly and had not heart to face and fight the enemy were called caculae militares from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is used in authours for that vitium in malitia cum amittunt locum in acie , i say , malignus does not onely import this , but also a superadded asperity and delight in mischief and malefaction , when men do mischief totis viribus , which catullus expresses by mente maligna facere aliquid ; malignus qui asper , difficilis , invidus , avarus est , saith donatus , when men are peevish and short , not to be dealt with by dehortation from their touchiness ; for pliny ranks malignum & breve together , when men are as barren of good , as soil is that eats up all the dung and compost that is put into it , and yet brings forth nothing but weeds , such is pliny's phrase in maligna terra ; when i say a man is malignant , à malo genio , & prava atque per versa voluntate , then no wonder that he is said by our chancellour to be an ill neighbour , a tormentor of mankind : for as satan is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the malignant , and we pray to be delivered 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , from his temptations , because they are the effects of his hatred and subtlety ; so ought we to deprecate wicked men as the instruments of punishment on the world , for as much as the instruments to torture , execute , and dispatch malefactors are such as are as bad as those they dispatch ; who are therefore excused the halter , that they may serve justice in that ignoble and execrable , though necessary office , which better principled and less vicious men will not undertake . nam cum dixerit deus reg. . quis decipiet mihi ahab ? malus erat spiritus ille qui respondit , ego ero spiritus mendax in ore omnium prophetarum ejus . this scripture is brought in to confirm the prealledged instances , not that historically there was any such conference between god and any spirit , or that really any spirit made such answer to god ; for i humbly conceive with tostatus , that it was solum visio imaginaria , whereby the sacred pen-man introduces ( by authority from god ) ahab deceived by his own sin penal upon him ; and thereby the just judgement of god , for his matchless impiety , severely passed upon him : for here we are to take in that rule of divines , those things that are spoken of god 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , are to be understood of god 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and whereas in the text 't is said , quis decipiet mihi ahab ? it is not to be understood as if god properly could be the authour or incourager of deceit quà such , for that being the defect of veracity is inconsistent with his attribute and essence ; but then he is said to decieve ( with reverence be it written ) when he does that per effectum which turns to wicked mens disappointmens , when he frustrates the counsels and enterprises of their wisdom , takes them in their own snare , and withdraws that prudence from them which should stand them instead to their conduct , and the fortunation of their counsels ; and when he suffers satans implacability to exestuate against them and to work effectually upon them ; for though true it be , that god does not ( as i humbly think ) indulge satan more power then naturally he hath , yet in not giving him restraint to that power , nor men defence by his grace against it , satan and his instruments have power of deceiving men how potent and wise soever they be : and thus ahab comes to be deceived by gods permission of the evil spirit to be a deluder of his prophets , and they of him , malus erat spiritus qui respondit . ] an evil spirit or a daemon is here visionally ment , some have been curious to inquire what daemon it was ; tostatus saith rabbi solomon thinks it was the soul of naboth , for the bloud of which innocent subject , slain , this penal delusion and ruine on ahab was brought ; but he will not allow , as i think he has reason , this conceit : first , because naboth was a just man , and his soul being in abraham's bosome could not come thence to deceive any one . secondly , because naboth as a just man died in charity , which would be inconsistent with this revenge of his soul. thirdly , because the souls of good men have no desire to harm any either good or bad , but to benefit them the most they can . fourthly , because his question presupposes a real congregation of counsel , and yet the thing here mentioned was but a visio imaginaria ; whose soul then this was , if a soul it were , matters not ; a spirit the text sayes it was and a mendacious one , and therefore i think the devil , who is said to be a lyer from the beginning : and probably it was that daemon or daemones which used to answer ahab's false prophets in their inquiries of unlawfull things : this oracle that they rested upon as their strength and stability , god makes to be their seduction , and that not onely to ahab , but to him by his sycophanting and idolatrous prophets . so it follows , ero spiritus mendax in ore omnium prophetarum ejus . ] as god suffers satan himself to tempt some good men for their tryall , as he did david , iob , ioshuah the high-priest , and peter , so does he let loose satan on evil men to bring to passe his displeasure against them : thus not onely by the immediate accesses of satan to them , but by the mediate applications of his instruments no less prevalent to his ends , such here as the prophets of ahab , men of influence and popularity , of reputation and credit with greatness , ahab's bladders that bore him up , his favourites on whose breast he leaned , and to whose fidelity he impiously attributed more then kinglyly he ought : these satan undertakes to suborn and by these to make the delusion strong and inextricable . ero ] 't is not sum or esse possum , not i am or i can be , but , i will be whatever i mischievously have been or possibly can be to draw a mist over the eyes of ahab's counsel , and to intenebrate his prospect into the consequence of this ginn of ruine to him ; so fatally will i steep my subtlety to over-reach him , that whatever of extraordinary injury my long experience and accurate malice enables me to , shall be discharged against him , ero ; ] and that unawares to him i will be spiritus ] a mischief secret and indiscernable , he shall not know whence his bane ariseth ; it shall be latens malum that shall provoke him to his ruine , ero spiritus mendax , ] he shall account himself most happy in that counsel which shall at once prostrate his life and his glory : and this i will do not by any instruments but those unmistrusted ones , his sacred favourites , ore prophetarum , the mouth of his prophets : ] o that is poyson with a witness that comes wickedly from the mouthes of deluding prophets , therefore god sentences those as causers of his people to err ; when those mouthes are not seasoned with sanctity , but have the poyson of asps , and vomit out the myre and dirt of falshood and fanaticisme , princes and people are in danger . no times so tragick as those are in which such dealbatores potentum are , nor doe any leathergies so possess nations , ' as when they are lull'd asleep by blinde guides and unseeing seers ; when prophets are fools and spiritual men are mad , then is the day of a nations visitation : israel found it so in ahab's time , in which , not onely one , but all of ahab's long-robed favourites were tinctured with demonical mendacity , not one of them excepted ; for such was the daemon's confident affirmation to god , that he would be a lying spirit in the mouth of all his prophets ; that it seems to carry a warrant to our belief , that he had taken livery and seison of them to be his own , jurare in verba magistri , to be such and onely such as he would have them , who being himself the authour of seduction , and the great imposter that by his gulleries out-wits this worlds politic●es , and by his frauds deceives , as far as god permits the possibility of it , the other worlds wise men , the very elect , according to that of our lord , which he left his church ( in those ages in which these feats should be acted ) as their premunitional caution against them , and their lesson to intend the defeat of them , which they can no wayes better do then by faith in god's power and promise , the victory of which overcomes the world , and satan the prince and arch - malignant of it . non enim decuit spiritum bonum exequi talia , licet à domino prodiit judicium quod ahab mendacio deciperetur . here our text-master shews whence it comes to passe , that ahab was thus seduced and that not from a contingency or a fortuitous casualty , but from a just and sovereign preappointment of the penal act of justice upon him , à domino prodiit judicium . he that made the world with a word can with a word doe what he pleaseth in it ; he it is that commands times and seasons , men and angels , creatures and elements : the whole regiment of nature is his , to order and disorder it as he pleases ; from this matchless potentate , king of kings , and lord of lords , comes ahab's final and fatal period , à domino prodiit judicium : and that not onely that prophets should be the men , by a lye in their mouths , the means of his deception ; but that as god permitted the thing to be effected by instruments proper thereto , so did he imploy none but such to those ends , because non decuit spiritum bonum talia exequi . ] if holy spirits cannot in respect of their purity and charity condescend to those derogatory acts of seduction and fraud , and such artifices must be practised to effect the punishment of sinners demeritings ; then either those that are proper for it must do it , or it must not be done , which omission not being allowable , for god's will must succeed , the deduction will be , that evil spirits must be the instruments ; for the non decuit relates to the nature of good spirits which is to do good , which execution of punishments quaà punishments and laesive to nature are not , nor is it suitable to the office of good spirits ( who are tutelars ; to keep off ) not executioners to intrude upon men perplexities and discomforts . and therefore i conclude , that be the daemon never so smooth , faced and beauteous , let his pretences be never so faire and obliging , let his pompous inscription be holyness to the lord , or , the everlasting kingdom , or , behold my zeal , let him have in his banner the quinque vulnera of our saviour , and profess to set him upon his throne ; yet all these are but splendida mendacia , but varnishes of a purid and diabolical villany , which can no more excuse it self by these sucacious trickings and meritricious ornaments , then poppaea sabina could to the age she lived in , who knew her to be well-spoken , witty , generous , and sweet natured , defective in no natural perfection , but that which is the onely glory of a woman , chastity . sed dicet iudex forsan , ego nihil egi manibus meis in cruciatibus istis ; sed quid refert propriis facere manibus , an presentem esse , & quod factum est iterum atque iterum aggravare . this is well here objected , that it might as well be answered ; that god weighs not so much the act as the motive and principle . the iews were the cryers-out for christ's crucifying , yet in as much as the scribes and pharisees , the elders and priests , set the people on and by their subtlety modelled his death , god's omniscience imputes to them the malice of the actual execution of him ; urijah was slain by the hand of the enemy , though ioah was accessary because he connived at the plot , which tended to his murther , yet david that willed and wotted it was chiefly charged by god with it . 't is not enough not to be openly evil , for that may be the act of policy not innocency , abscondore vitia non abstindere , as tertullian's words are : but he that will have a good footing , and lay a clear title to god's protection and blessing , must be free from having any thing to doe in evil . marcus arethusius gave the rule , one farthing subsidiary to wickedness beguilts the giver as much as pounds to that sinfull purpose ; no posting it off to others when they are what they sinfully are by our authority . if qui nou vetat peccare cum possit , jubet , what a mountain of impiety do they lie under , that will , direct , command , compell men to evil actions , and are not satisfied till they commit them ; certainly god has great reckonings to make with men in place for this , because the errours of all underlings will be charged by god on the negligence , if no worse , of superiors , who are not onely to look , that they themselves are not personally evil , but that no evil has countenance and corroboration from their authority ; all unrighteousness acted in a nation , by the governours privity , is the governours in the account of god , because god has given them the sword , and that which is done by the colour of that , is , in god's account , done by them whose the sword is ; which if the judges of the world would rightly consider , they would not think they should be excused by the darkes and shades that they abstrusely wrap themselves up in , who are the chief engineers in that which is torment to some and temptation to more : yea , were it not that greatness has some unavoidable naeves and flaws in it inconsistent with that durable peace and continual feast which nourishes an endless jubilee in the soul , wise and holy men would not so little seek it as they doe shun it ; and blesse god for agur's portion , food convenient for them : but good men knowing the corruption of their hearts , and the dangerous influence of temptation in greatness , have as well blessed god for the happiness to dwell among their own people , as , to be buried in the sepulcher of their fathers . i know the number of these modest unwilling ones is but small , but yet some there are , and those not the least excellent in their ages and places ; of all the fathers of the church , none merited more then athanasius , yet no man shunned governmens in it more then he ; of all the dukes of venice , none a braver one then contareni the duke , yet he fearing to be chosen duke left the city on purpose to avoid it , the senate sent letters to invite him to the city , but come he would not till they had chosen a duke , at last the senate concluded to confiscate his goods , and for ever banish him the city if he came not to the city , which dreadfull sentence brought him thither , and by his return brought the dukedom with it to him ; and the reason is , because power does engage men to delegate that to others to act , which they must answer for to god as the commissionators of it : for the rule is good , qui facit per alium , facit per se. and therefore the chancellour sayes in the following words . credo quod vulnus , quo santiatur animus iudicis paenas hujusmodi infligentis nunquam in cicatricem venict . here the chancellour shews , that in justice pronounced by a judge has often a return upon him in the dismal effects of it , terrour and torment of minde , which he calls vulnus , which is not a light superficial scratch or a shrewd drye rub and bruise , but a deep wound fixed in the quick which discovers its laesion in emission of blood and expiration of spirits ; this is the nature of a wound which the guilty conscience of a cruel judge is said to labour under ; and a sore torment it must needs be , for it is said sauciare animam , which denotes such a galling as is in the tender parts when they are rawed and tortured with scourges of rodds , so plantus , quid causae est , quin virgis te usque ad saturitatem sauciam ; and tully , servi nonnulli vulnerantur , ipse rubrius in turba sanciatur ; from this grievous pain , which the iews probably learned from the nasions , the torment of a guilty conscience is metaphorized , for that it makes the life of man turbid and uneasy by it , which the greeks hinted in that adage , ' h 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . how these terrours of god in the souls of men have afflicted them , the examples of cain , manasses , david , iudas , make appear in holy writ , and the like other stories afford : master fox has many collections in his martyrology to this purpose , and were all the instances of the affrighting tristicity of it perished , that notable one of spira would inliven the memory of them all ; nor are the stories of bonner , judge morgan , thornton , arundel , with others , much behinde it ; but declare notably , that when there is a sanciatio animi , as in these notable returns of god upon presumptuous sinning there is , then there is but a black night of horrour and despondency in the soul. therefore as all men are hence admonished to look to themselves , that they provoke not god to chastise them with these scorpions , so are judges especially , because they are god's delegates , and they doing unjustly in the place of the just god , and to his vituperation and scandal , are by his just judgement , so much the severelyer handled , as there crime is more enormous : for this is crimen lasa majestatis coelestis , since it is sacrilegiously to entitle the just god to unjust sentences , which indignity to him he recoyls in that fatal judgement of setting men's sins in order before their faces . this is that which makes the wound nunquam in cicatricem venire , ] that is , never heal ; for when a wound tends to a scarr , which is the sign of it on the superficies of the skin , then men reckon the festery matter is outed and all the noxiety removed , by reason of which nature closes its orifice and shuts its mouth from craving further aid from art , leaving onely the scarr as the testimony of its danger being over and escaped ; but when the conscience of a prodigious cruel sinner has got a wound from god's stroak upon it , and the sins of a cruel life , with all the aggravating circumstances are marshalled and set in rank and file before a man , then he sees nothing but despair and horrour , terrours and amazements , such as cain and iudas had , and such as all bloudy wretches shall finde to their consternation , for god who is good and does good , cannot away with evil men and evil actions , but brings them home upon the actors in all the tragical fruits of them . had iehu peace that slew his master ? had bonner the comforts of god on his death-bed who made hecatombs of triumph to his deluded zeal with the bones and bodies of burned martyrs ? had benefield , the butcherly keeper of queen elizabeth , who thirsted after nothing more then that incomparable ladies bloud , and not onely suborned witnesses against her , but joined with others ( purely upon the account of her being a protestant ) to perswade the spaniards at court , either to dispose of her abroad or rid her out of the way ? had these , i say , any comfort , was their wound ever healed ? o 't is much to be doubted they had not ; though repentance has indeed a balm that can do all that is needfull , and if god give it and accept his gift , much may be done , but otherwise vulnus nunquam in cicatricem venict , and the reason is , the humours that poyson the wound are not rectified , sweetned or diverted , but there is a continual flux of them to the malade part which is harmed thereby , and still continued a wound . for as it followeth . maximè dum recolit acerbitatem poenarum miseri sic afflicti . indeed this is god's terrour by which he gores and batters wicked men , and by the pelts and ramms of which he forces open the recesses of their fancyed content , and galls them in their tender parts ; so that they have their torture ever before , because ever within them : this was evident in iudas , who when he remembred 't was a master that treacherously he had betrayed , and an innocent bloud that he had contracted to shed , how raving and perplexed is he ? so that the hands , that told the silver , tyed the halter by which he hanged himself : famous to this purpose is the story of olivier , chancellour to henry the second of france , a fierce man he was and had condemned certain protestant gentlemen for taking arms against the house of guise , being instigated thereunto by the cardinal of lorrain , sick the chancellour fell , and troubled in conscience , casting forth many sighs for his unrighteous sentence , at last on a sudden he skreeked out with a lamentable cry , saying , o cardinal thou wilt make us all be damned . the consideration of which makes good men wary not to be instruments of injury and cruelty . whatever a souldier parts with he should not with his arms , but if he have by cowardice lost them , he ought with cato's son to enter the thickest strength and menacing'st storm of the enemy to recover them : and so a good christian , whatever he be forced from , should not be from his integrity , and from a calm and peaceable conscience , which they cannot have that are delighted in envy , malice , and mischief to all but their own party . remember this all yee that preferr this world before your consciences , and to please a passion break out against innocence , who care not who sink so yee swim , nor who is your foot-stool so you mount the bucephalus's of your ambition ; remember this yee that ride post , and switch and spur to reach the babels of your contrivance , though the cry of the oppressed , and the groans of the famished poor be in the stone mortar land materials of your superstructure ; not , o unhappy men , your counsel but god's shall stand ; sir garret tryers found it so ; he , for a grave-ship promised him by the spanish regent , undertook the destruction of the protestant professors in flanders , but god struck him with such a blow as left him dead in his bed as he was just entring upon it , which , methinks , should make men study in all their advantages and actions , moderation and temper to express their worth by ; which iohn of austria not kenning , in eight hours caused the death of . citizens of antwerp , who were put to the sword , and above . perished in endeavouring escape , together with the loss of the city to the value of three millions , besides all the warrs and cruelties on the belgick provinces which were meerly in hate to the natives , and to introduce the inquisition there contrary to the lawes of the country . for when all the pudder they that are fierceest have made comes to the moment of death , then they will be forced to say to their fiercenesses , i have no pleasure in them ; then the memory of one good deed done charitably and piously , will be more refectional then all their superb huffs and ranting pitilessnesses : yea in this worlds account 't will appear in the issue most prudence to be milde and kinde , where men may doe it without injury to justice and order . 't was a very memorable moderation the venetians expressed to the zaratins who had seven times revolted from the venetians , and in all those revolts been reduced by sharp and terrible warrs ; yet for all that did not the state raze or sack the city , though delivered unto their mercy , but put a new governour into it , and the chief authours of the seventh rebellion were for ever banished the city ; this was the method of that wise state : of a good temper was that famous requisinius , one of the valiant and noble governours of the king of spain's in the low countryes , who coming thither found it all in flame , yet he , though a valiant and expert souldier , was a lever of peace , grave rather then severe , and more studyed the publick settlement then his own glory ; this made some airy persons detract from him : but god so honoured his bravery of minde , that he ever had the better of all his opposites ; and moderately used the advantages he had to shame their enmity and not to ruine them for it . this was the praise of that grandee , and the contrary had not onely lost him the lustre of that glory , but engaged him in that internal torture , that the memory of truculent and barbarous actions infelicitate their actors by , whose conscience is never healed but continually terrifies them , maximè dum recolit acerbitatem panarum , &c. chap. xxiii . praetereà , si ex contractibus , illatisve injuriis , vel haereditatis titulo , jus accreverit homini agendi in judicio , si testes non fuerint , vel si qui fuerint moriantur , succumbet ipse agens in causa sua , nisi jus suum probare valcas inevitabilibus conjecturis , quod facere crebro non contingit . &c. here the chancellour offers something in seeming extenuation of the proceedings of the civil law in cases of contract , reparation of injury , or title of inheritance , which are three chief subjects on which the justice of any national law ought to work ; and the main argument he brings hereto is , the necessary presence and testimony of witnesses to the maintenance of those actions and the recovery of right by them , which he would make , as it may happen , defective to that end that lawes are made . ius unicuique tribuere . this is the summ of this chapter , which i shall no further write upon , then to shew that in these cases witnesses are required , and without them , by that law , no action lyes so as to be recovered upon it . ex contractibus . ] contracts are the first of the ternary , and matters of capaciousness they prove , and in the ordinary notion we account them those accords and agreements of men upon which actions for non-performance of them valuably arise ; erant hamque actiones praescriptae verborum agendi formulae pro natura cujusque negotii , say the civilians , hence is it that because man is a sociable creature and lives in the light of his reason , turning and winding things to his politick accommodation , which is the principle of contract , the lawes of nations allow him his jus prosequendi in judicio quod sibi deb●tur , which if he rightly manage and punctually observes , he cannot fail of the lawes equity in them . these contracts then , to discourse at large of , would be the work of a life , for there is no end of them since they take in not onely those of merchandise , but even of oeconomy and martialness ; hence is the agreement of two to be man and wise called contract of marriage , of master and servant , a contract for service and wages : yea the military art hath its contracts too , as appears by those mutualities of accord that were ever between the souldiers and their leaders , to which the apostle is thought , and that not improbably , to allude in those words , i bear in my body , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the marks of the lord iesus , which phrase is borrowed , as i suppose , from those military compacts that were of old , when captains put on their souldiers faces or hands , their brands or stamps of dignoscence , and without this they were no lawfull souldiers : so to this day all souldiers either are entertained by indenture , or entry on the band-roll , and have the colours of their regiment as the badge of their contract with their chieftain to do him service according to the laws of warr , and the performance of his promised pay ; for reciprocation is absolutely necessary in contracts , and where the persons that contract are not fit and proper , contracts are insignificant , but if such they be as they ought , they are actionable to procure the performance of them , and not to fullfill them is to doe injuriously ; and that the text sayes the law does allow an action for : ●o are the words , not onely si ex contractibus , but illatisve injuriis . ] illatis●e injuris . ] so the old and true text is , the later , illasisve injuriis , is corrupt ; for the chancellour's intent is to shew that the law being ars aqui & boni , looks upon all departure from it as wander , and all measure beside it as injury , quicquidenim non jure fit injustè fit . now injuries within the text are chiefly those violences and uncharitable actions which flow from an ill will and a pravity of principle , which because it appears in some signal violation of social kindness and politick order , is made to intitle the magistrate to not onely see the law executed upon it , but to interpret it a stroke of malice ( though at a distance at him . ) and therefore is it that in teespasses , assaults , and batteries , the declaration is vi & armis , the trespasser , &c. did doe what he did ; because injury persisted in , and not satisfied for , is inchoate rebellion , or a defiance of the custos regni & legum , which aggravates the guilt : so the romans accounted small offences , which simply were nummarily penal , to become in their repetition capital ; and lipsius gives the reason , because thrice to repeat a fault is to reproach the law of which it is a breach , and to dare it to severity against such a blushless effrontery . by this then it appears , that injuries are the warps of man , seduced from his primaeva rectitude , and a recess from charity and righteousness , which is the onely noble endowment of humane nature : the proneness to decline which , through the prevalence of passion regnant in us , and the fruit of satan's influence on us , whereby our wills , wonn by him to a delight in unrighteousness , does that to another which is against justice and that civil right , which god and nature has vested in men , is that which is termed injury : to avoid which , lewis the hungarian king being come down into italy with great forces against the state of venice , ( who were so weakned by a plague that they were forced to declare , that whosoever would come to them , after two years abode there , should be accounted a citizen ) and being informed of the act of god , causal of their distress , and applyed to with intreaty not to take advantage of it , condescended so far as to promise them , that during their adversity he would make none attempt against them , which was a great command of himself ; and which had he not done , he would , in my minde have been injurious : but enough of him and of injuries , for which there is remedy appointed in all lawes according to right reason as tholossanus abundantly makes good . vel hereditas titulo . ] this is title of land , that which is patrimonial and successive , donative or testamental , acquisitive or emptional , of this bracton treats : this the learned called anciently 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , though since that term is restrained to the patrimonium crucifixi , those that are god's portion , evangelick levites , as i may so say , who are there by in their order understood , but more ordinarily inheritance ; haereditas ] was that which was the portion of the children of the defunct possessor , which were termed haerdes necessarii , and to whom it came by the law of the twelve tables , sive vellent sive nollent : after these the next of the bloud , or such as by will they would appoint , whereof the civil law gives us much learning every where in the body of it , and in the doctors upon it . now in all these cases either of contracts , injuries , or inheritance , the lawes civil requiring lawful witnesses both for nature and number , or such prevalent conjectures as are tantamounts , doe but what , i humbly conceive , is rationall , religious , and worthy them , and thereupon i conceive them justifiable in so doing ; nor can they well be said deficere in iusticia , because they do require that which is for the most part haveable if the cause be just , and if a just cause once in an age sink for want of it upon the act of god who calls the witnesses away before they have given their testimony , the law is not to be charged for that it could not provide against , for god is to do with his creature what he pleases whose he is ; but rather the law is to be justified which wisely provides for witnesses to be examined in perpetuam rei memoriam : and the parties , whom the want of witnesses most prejudices , are to be blamed for omitting the indulged opportunity , the rule of law being , currit tempus contra desides & suitemporis contemptores . and if lawes should be branded as defectuous in point of justice for what thus may happen , no humane law ever was or ever will be just ; for as there may be some high tides and strong windes that may force a breach upon the best walls and mounds of art imaginable , so may there also be some casus omissi which may be too extraordinary for ordinary rules and provisions to remedy : nay the common law it self will be in most cases thus defective , since in most , or all cases , witnesses are necessary , and that heretofore in the beginning of every action , and if witnesses fail before a tryal come , the suit were as good not proceed as fall for want of proof ; so that with favour to my learned master , the civil law in requiring witnesses or inevitable conjectures , without which it judicially determines no action , does but what is just ; and may be said , unicuique quod suum est tribuere , since that which is not made out by witness or presumptions of equivalency thereunto , is as if it were not at all any thing above a bare allegation ; the rule of law being to proceed to judgement , secundum allegata & probata . and so i end this chapter . chap. xxiv . reguum angliae per comitatus , ut regnum franciae per ballivatus distinguitur , these words are initial to what is of materiality in this chapter , and thereupon i begin with them , the preceding clauses being onely matter of form and transitional coherence to maintain the continuity of the discourse ; which , though it be very comely , and proper to display the venust proportion of this creature of the chancellour's , which he himself could not but love ( because 't was his own , and so like his learned and pious minde wherein it was formed , and i cannot but admire for his sake ; whom to serve i have herein spent some pains , and through the goodness of god i hope not unprofitably , ) yet do i not think those things that are so ordinary as prefaces and flowers of oratory are , fit to seise me from persuance of more ponderous passages , therefore proceed i to these words , reguum angliae per comitatus , &c. regnum angliae . ] this is the subject , a noble and imperial one ; but of it because i have written in the notes on the seventeenth chapter , and shall further in those on the twenty nineth chapter , i forbear here : onely all men are to know , that england was ever a monarchy and imperial crown , and though in regard of the community of its subjects , whose goods in all the latitude of felicity was aimed at by the just monarchs and lawes of it , the name common-wealth has been given it : so stat. iacob . c. . & e. . c. . & p. & m. c. . h. . c. yet that name , in contradiction to imperial crown , monarchy , state and kingdom , was never allowed here , nor attempted in any change till the year , when by an ordinance it was , as far as god permitted that strange engine to operate , new modelled and named a common-wealth , or free state ; but as ab initio non fuit sic , so blessed be god now it is not such in a sense of opposition to its sovereign , but loyally returned to , and enjoyed by him : whom , god preserve long , our gracious protector and great encourager in virtue ; and to whom , god preserve us christianly subject and englishly loyall . per comitatus . ] this is the predicate what the kingdom is in its politick scheme , to wit , a pack of shires or partitions of government for the more apposite and orderly regulation of them and of the whole island in them ; now the main and superiour parts of this division is called comitatus , possibly because it contained a circuit of ground and people which was under the charge , caesaris comitatus , of some one that was of its kings and masters near attendants and bosom-friends , who was companion of his warr and of his peace : into this model of counties , alfred is said to cast england about the year . and as dutchies were the charges of dukes , and thence took their names , so counties of earls who presided them ; it being usual with antiquity to honour every dignity with somwhat of trust martial , or if not with the thing , yet at least with the name , as sir henry spelman , and master cambden with others assure us by most clear authority . comitatus then being the name of offices had various acceptions , of old it signified the senatus imperatoris domesticus , as we may say , the court of the king's house ; after , they were extended to that we call the ¶ county court , which is the court of the earl or count , now the sheriff who hath the custody of the county . these charges are also called shires from scype the saxon word , to part or divide , because they are those limits and bounds of ground which our ancestors , from the germans , learned to model government into , for its more secure and expedite carrying on . the number of these of old , saith mr. cambden , were accounted by some , or . but at this day are reckoned at . and in wales setled in henry the eight's time , as appears by the statute h. . c. . & h. . c. . though sir edward cook makes counties and in wales . and within some of these is every part of england , ità ut non sit locus in anglia , qui non sit infracorpus comitatus . ] for because every county is under some sheriff who has the custody of it in times of peace , ( as the come sanciently had in warr , and as our lord-lievtenants at this day seem to have ) and who is responsible for every legal judgement to be executed in it ; therefore is every place in england under and within the precinct of some county ; yea though a priviledged place it be , yet is it within the body of some county , though it may have a special officer to whom the dispatch of judicial matters belongs . the consideration of which was the cause that made the isle of wight to be declared in the satute of h. . c. . to be part of the county of southampton ; for that it being a rich neck of land and having many inhabitants in it , as it might have the priviledges and freedoms , so also should pay the duties and service to the lawes that other parts of england doth . so then by all this it appears , that as france was divided into baylywicks , when , i think , the capets reigned in france , which is but the same * charge under another name ; ballivus coming from baillar tradere , committere , and a bayliff being nothing but a commissary to execute anothers pleasure ; in which sense we read of ballivus provincialis , ballivus franciae , ballivus libertatis , ballivus burgorum , ballivus manerii , and ballivi vicecomitis , of which sir henry spelman sayes , hoc illud hominum genus est , &c. this is that sort of bayliffs , that while they torture and catchpole men , do so dishonour the name of bayliff , that all the honourable notion of it is by the infamy of these bayliffs errand disgraced : i say , when we ' read of bayliffs , i mean chief ones , we read but the name . of the same office and officer with our sheriff , whose office is termed balliva most frequently ; so that the sense of the text is , as there is in france no place but is under some baylywick or other , so neither is there in england any place but is within some county or other . comitatus quoque d●viduntur in hundreda qua alibi wapentachia nancupantur . as counties were lunches out of the whole loaf of land , so hundreds or wapentakes are morsels from them ; now though these are differently named , yet are they really the same , for the lawes of saint edward revived by the conquerour say so expressely , quod angli vocant hundredum supra dicti comitatus ( to wit , warwick , lincoln , nottingham , leicester , and northampton shires ) vocant wapentachium ; and as hundreds some called them , because they were the tenth part of a county , in which dwelt centum pacis regiae fidei jussores , ( which i rather believe then that random conjecture of ralph of chester , who makes the hundred to be procinctus centum villarum , ) which is so ridiculous , that the learned ¶ knight sayes and that truely , that there is no hundred that he knowes in england has villages in it , no , not one half , many great ones have but , or , others not , some not two , thus he . concerning hundreds fee malmesbury , de gestis anglorum , p. . selden's notes on this chapter , tugulphus , p. . cambden . brit. p. . cook on m. charta , c. . and of hundredors to be returned on juryes the stat. of h. . c. . eliz. c. . make mention . wapentachia . ] that this is the same with the former , though otherwise called , as i have written before : generally this is acknowledged to be derived from wapnu , arma , and tac , tactus est , alluding to that honoratissimum genus assensus armis laudare , which ¶ master selden quotes from tacitus , it being usual with them to give approbation in their convents military by touching their weapons as token of assent , and joining their utmost power to assert it . amongst the lawes of the conquerour i finde this recorded , when any new governour or judge of the wapentake first came to take his charge , he called together all the chief men within his bounds , et descendente eo de equo suo omnes assurgebant ei , ipse verò erecta lancea sua , ab omnibus secundum morem foedus accipiebat , omnes autem quotquot venissent cum lanceis suis ipsius hastam tangebant , & ità se confirmabant per contactum armorum pace palam concessa . hundreda verò dividuntur per villas , sub quarum appellatione continentur & bargi atque civitates . it should seem villae were in our chancellour's time terms of comprehension not diminution , else he would not have shrowded under the term of villae cities and burroughs ; or at least villae were tantamounts and equivalent to burgi & civitates : this promiscuity of expression the learned selden gives president of , and all to this purpose , that no place should be exempt from being pars corporis comitatus ; either part of the county in which the city , ville or burrough stands , or a county of itself , for rare is it to have any place priviledged as battle-abbey was , to which the conquerour gave grant , leugam circumquaque adjacentem liberam & quietam ab omni geldo & scoto & hydagio , &c. & omnibus auxiliis & placitis , & querelis , & shyris & hundredis : and therefore though vills , cities and burroughs are commonly used one for another , as malmesbury writing of claudia or glocester , called by the britains airchala , as a city devoted to the memory of claudius ; ( of which seneca makes mention in those words , barbaros in britannia cum pro deo colere , & in honorem ipsius civitatem edificare ) whereas he terms bristol but vicus celeberrimus . though , i say , these three names were of old confounded in use , yet now adayes they are distinct , vills being open under officers of the crown as parts of the county ; burroughs are particular governments and corporations by prescription or charter , sending members to parliament mostly though not alwayes : but cities are accounted such as are shire-towns , most an end wall'd , having sessions and courts in them , and a bishop's seat ; and these , requiring great circuit and jurisdiction , may uninjuriously be said to be contained under vills , which our text makes capacious as appears by those words . villarum etenim meta , non muris , aedificiis , aut stratis terminantur sed agrorum ambitibus territoriis magnis , hamletis quibusdam , &c. hamletis quibusdam . ] a hamlet is some part , or member of a ville or town , so sayes the text , vix est locus aliquis in angliae qui non infra villarum ambitus contineatur ; for , ham in saxon signifies a circuit , or compass . whence the word hemme , for the edge and limit of any garment ; sir henry spelman sayes , the ancient word haga , sire ( i think to our hedg ) to signifie a trench , ( hedges being bounds , as trenches , as ditches are , ) or rather little residencies for security and livelihood ; ham quasi home , which , because many habitations conjoyned eminently are great towns , are called by names ending in ham : buckingham , walsingham , notthingham . and demivills are termed diminutively hamlets , see the stat. of e. . which i finde not printed , though sir henry spelman mention it . praeterea in quolibet comitatu est officiarius quidam unus , regis vicecomes appellatus . this praepositus , or deputy of the king is here set out by three terms ; that of office officiarius ; that of honour vicecomes regis ; that of number , unus officiarius . ] this word comes from officium , & the termination rius being personal , directs to the he that executes it ; thus from the-saurus thesaurarius ; from camera camerarius ; from registrum registrarius ; from cancellum cancellarius ; from praebendum praebendarius ; from ostium ostiarius ; from ianua ianuarius ; from beneficium beneficiarius ; and so in infinitum . quidam vnus . ] many men , but one governour , or principal : god put a dignity on one ; hear o israel , the lord thy god is one . and reason and policy has also given the suffrage to one ; vnus in coelo sol , unus in regno rex , una in regione religio is the rule of all policy : and therefore the kings of england it should seem by our chancellours word , appointed to every county one sheriff ; yet till the eliz. . the statute tells us divers counties were pared , and had but one sheriff between them ( as i think yet some have ) but by that statute those counties were parted , and one sheriff appointed to each of them , as by the of the same q. eliz. c. . was appointed to others ; the nation probably filling more with fit persons , and the charge being better borne for one then two counties ; and because his office was iudiciaria dignitas as well as ministralis , and like to that of the romans consulage , therefore as the law committed to this officer , and required his residence thereupon , so did it not put pluralities , or supernumerary duties upon him more then those he could reasonably be thought in his (a) proper person to perform : nor did our kings and their counsell appoint anyone to this place of dignity , but such as was proper thereto , milites vel armigeros , men of blood , breeding , and estate ; and to these one by one in their office has he committed great trust ; for , since every mans business is no mans , and many in an office are authors , rather of confusion then orderly action . the laws of nature and nations prefer oneness in most things before manyness , as i may so say . and as god by one soul in the body rules all the senses and faculties to a rational and orderly purpose , so does the king in the law carry on wise and worthy government in counties , by this one ( though not only ) yet chief officer in it : and as the romans were wont to make their equities of select men , who had their horses appointed them , and were accounted to decline when the conditions and fitnesses of men were more calculated by their purses then minds ; so is it in any place , and government a great defect to chuse persons to offices , who are not nobly qualified thereunto , it being a rule with me , that the kings authority is never contemned , but when it is managed by weak men . and certainly , what the emperours theodosius , gratian , and valentinian decreed concerning souldiers , that no man of mean birth , fordid breeding , ill carriage , poor nature , or of illiterate minde , should be admitted to the noble company of souldiers ; but the best , and every way braveliest accomplished of men , is applicable hereunto , and practised in a great measure by our state , as in the hereafter treaty hereof will appear . regis vice-comes appellatus . ] this puts a dignity on the sheriff , that though he be not as the roman legats are by the historian described to be , whom he termes of all the most honourable and sacred ; having the power of an emperour , and the sanctity of a priest. yet may this officer be allowed many , not only grains , but ounces and pounds of honor , for his derivation from the king , by the count , or earl of the county , to whom he succeeds ; who therefore was called comes , because probably he was either of the blood , or by merit inoculated into the stock of princely greatness , to which he was a companion : now this compartization in command ( as i may so say ) time wearing off , and the wisdom of princes disallowing great mens rivalry , or potency , to prevent the irruption of it to princely disturbance , has committed this trust to a hand where it is acted less formidably . and this person or officer , the law calls vice-comes ; where vice pro loco accipitur , as pliny phrases it , so bos in aegypto numinis vice colitur , that is loco , so cartias uses vice alicujus solicitus , & suetonius vice mundi circumagi ; which is as much as ad similitudinem mundi , and livy has pungi aliena vice : so that this officer being successor to the earles of counties , who originally had the charge and government of the counties , their honourable titles were called by ; is hereupon to be accounted a great officer , and to be chosen out of the most select band of the shire-gentlemen . and such , not onely england apprehends them to be , but also some other countreys : for , to this day , in sweden (*) every territory has its vice-comes qui alter fere prator & qui jus dicit ; above whom is the praefect , or lamem , with us chief justice , who rides circuits , and by these vice-comites are attended , which probably was the rise of our circuits and sheriff from some northern ancestry of ours ; the danish laws ( with help of the saxon ) affording us much of institution , and law-method . qui inter caetera officii sui ministeria , omnia mandata & judicia curiarum regis in comitatu suo exequenda exequitur . this the chancellour brings in to the fuller blazoning of the sheriffs dignity , which is , not only ministerial , but magisterial , and iudicial as i humbly conceive it in some cases is , and as before the c. . of magna charta much more was ; before which it is probable sheriffs did arrogate to themselves pleas of the crown , by which they being ignorant of the law , gave ill judgment in the case of mans life , which is a tender thing , and requires the learning of the great and grave judges to the cognizance and consideration of it : i say , i humbly conceive there may be some thought that this inconvenience occasioned this barr of the seventeenth chapter . and , the maine drift of the chancellour is , to represent the sheriff ; as properly the hands and feet of justice , the executor of the law , that carries its wisdom and justice to a thorough execution , and vital energiqueness . hence is it that he has power both in iure & in sero , and has committed to him according to sir edward cook , a threefold custody , vitae iustitiae , for , no suit begins , or process is served but by the sheriff ; vitae legis , he is after long suits , & chargeable ones to make execution ; vitae reipublicae , he is the principal consevator of the peace within the county . and thereupon the text sayes right , that he is omnia mandata curiarum regis in comitatu suo exiqui : for , in that he is said mandata curiarum regis exequi , is implyed execution of the kings commands , because the king commands by matter of record , and rex praecipit , & lex praecipit are equivalent , as heretofore more at large has been discoursed . and now i seem to have a fair challenge to write of the courts of westminster hall , which are the curiae regis ordinariae , the honourable courts and iurisdictions planted in this kingdom , as king iames's words are ; but sir edward cook writing of them , not to the elaboration of their nature , nor any before him that i know of , warns me to be modest and not to meddle with such intricacies , which i am very easily perswaded to avoid , because i know the learning of them more various then to be abridged as here it must , and mistake so easie , that truely i should be very prodigal of prudence to engage in it ; it shall onely content me to professe my duty and reverence to the king's majesties courts and to the most reverend and learned chief justices , with their suitable companions the justices in them ; to whom , as i can do no lesse so i will be excused in applying that to their worthy master-ships , which paludanus , upon the view of sir moor's works , wrote to his friend , nec satis scio majorene cum voluptate an admiratione felicem britanniam , quae nunc ejusmodi floreat ingeniis , ut cum ipsa possit antiquitate certare . but i proceed . cujus officium annale est , quo ci post annum in eodem ministrare non licet , nec duobus tunc sequentibus annis , adidem officium reassumetur . before this , sheriffdoms were granted for term of life , terms of years , or in fee , but by the stat. e. . c. . it was restrained to one year ; yet , how it come to pass i know not , but sure so it was , that sheriffs did continue many years in their offices , and , did many oppressions to the people and evil service to the king and his people , so are the words of the statute : therefore by the stat. h. . c. . provision is made against their enormities , which are called , many and diverse oppressions to the king's liege people , unduely , evilly , and falsly to serve the king and his people . and hence comes the limitation which our chancellour terms annale officium , though by the e. . c. . some relaxation is given , yet still is it annale officium ; for the wisdom of our ancestors looked upon longer time as too great an opportunity for mortal weakness and wickedness to evict : and therefore it anticipated the occasion of such temptation , it being a wise proverb which we have , opportunity often makes a thief ; thus was achan lurched , i saw among the spoils a goodly babylonish garment , ane sheckles of silver , and a wedge of gold of sheckles weight ; then i coveted them and took them and hid them in the earth . o 't is a rare thing to be a david and see a bathsheba and be in love with her , and yet let her rest whose she rightfully is ; nor is any sprigg in octavius his plume more imperial and matchless then that which was rare in the caesars , to be perpetuo sanus ; to have an empire and to be so little in love with the greatness of it , as upon serious and moderate thoughts to think of chusing a private life and resigning that is an argument of supern magnanimity ; which truely if it be thick sown , as i question , yet that it comes up thinn , i question not . and if all the instances of the danger of opportunities were obliviated , yet in the survival of two , which our own stories do and will mention , the first of which was that of the protector after r. . and that later ( o tell it not in gath , declare it not in the streets ef ascalon , least the uncircumcised rej●yce : ) that , that , ( which by abuse of a gracious law , and to the destruction of a gracious king , engaged us in warr and wickedness ) would more then enough revive to us the danger of opportunities . so that all things considered , in as much as the sheriff is an officer of great power and trust , and many temptations attend it , yea much evil has been done under the umbrage of it , the wisdom of our kings in their parliaments has been great in limiting them as by the prementioned statutes and as by those further ones , r. . c. . h. . c. . they have done ; for in that it is lest to be annale officium , there is time enough to discover the virtues of fit persons in their service to the king and country . for a year ( which is a time of legal months , ordinarily said the measure of the sun's march through the zodiack ) the heb. called it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , à mutatione , from its revolution ; the greeks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because as a circle it turns into it self : the learned make many notions of annus , they tell us of annus civilis , naturalis , annus magnus , and under these of annus solstitialis , lunaris , embolismus , bissextilis , iubileus , olympias ; and (a) tully summs up all in that great year which contains ● years , but most ordinary is that lunary year of dayes , and the solstice year of months , according to which our law computes and our chancellour is here , i suppose , to be understood . all nations then agreed in a year as the mensuration of time , onely they variated in commencement of this time , ¶ porphyry tells us the egyptians made aquarius 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the leader of the year , others cancer ; the christian account is with ianuary , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the door-month , because it lets men into a method of computation ; but many christian nations compute the year from march as we ( because of the reigns of our princes ) do with us ; which i can say no more to , then that it seems to follow the constitution of romulus , who instituted but ten months to the year , whereof march was the first , ianuary and february being after added by numa , which makes up our year of dayes which i humbly conceive to be that time which our text intends by , annale officium . quo ci post annum in eodem ministrare non licet . ] this is added to shew that whatever administration is beyond the allowance of the law , has a non licet upon it , and intitles the actor , not onely to the penalty of . l. for every year , but to be in misericordia : now seeing that the law by acts of parliament sayes , he that is sheriff shall be in that office but one year , nor be reassumed to that office for the next two years after ; and this it does on purpose to break off the officers insolence over the people , and the peoples dread of the officer , after the years expiration he being defunct as to all power , and ( unless there be no other sufficient within the said county ) acquiesce he ought , ministrare non licet , so are the words of the statute ; and hereupon , when as the under sheriff of bristol doubted concerning his capacity to hold the place from year to year , as the under sheriff of london does , the statute h. . c. . did declare , that notwithstanding the statute of inhibition he might , or else those statutes being in force he durst not ; so well the later lawes remedyed the inconveniencies of former times , that the old proverb , aeginenses neque tertii neque quarti , may be said of english sheriffs : no man can ordinarily continue in it any time beyond that of a year , which is time enough for an honest man where such choice of them is , as in england blessed be god there are , and beyond it would be too much time for any that is not worthy to have it . officiarius iste sic eligitur ; quolibet anno in crastino animarum conveniunt in scaccario , &c. this shews us , that as there is one officer , so he to be chosen , and so , and so onely ( ordinarily ) as the statute of e. . c. . appoints , which our text is but an enlargement upon . and the first thing that is remarkable , is the note of time , greater , quolibet anno , an annary officer to be chosen annarily ; the lesser or prefixt day of the year , in crastino animarum . crastino animarum . ] this was a day set apart upon papal ends , afore and in our chancellour's time , but at this day is a festival by virtue of the statute of & e. . c. . which i do not assert to decline canonical compliance , or as thinking the church of england may not harmlessely , as she doth , symbolize in these little externities with the romish church where she has any footstep or print of unsuperstitious antiquity for her colour or warrant ; but to satisfie the scruple of some tender spirited persons , that they may make more conscience of contemning authority herein then hitherto they have , for in that some saints dayes and other festivals are called holy-dayes , our state does not call them such , for the matter and nature either of the time or day , nor for any of the saints sakes , whose memories are had on those dayes , for so all dayes and times considered are god's creatures , and all of like holiness , but for the nature and condition of those godly and holy works wherewith onely god is to be honoured , and the congregation to be edified , whereunto such times and dayes are sanctified and hallowed , that is to say , separated from all prophane uses , and dedicated and appointed not unto any saint or creature , but onely unto god and his true worship , these are the words of the statute , which shews that pure prudence and piety destinated these to the respect that with us they have , which our ancestours were not onely directed to do by the light ( as it were ) of nature , which dictated the commemoration of notable persons and actions by a more then ordinary solemnity , but also by example , and authority of god , positively commanding it : and therefore there has never been any nation so rude but has observed it ; nor any so religious but has been awed into the conformity hereto : which made s. bernard declare him unworthy of the ioy of the festival , in the sacred comfort of it , who does not observe the injunction of fasting , in preparation for it . now , though i know there may be , and is abuse of holy-dayes , as of the best things there may , and divers times is : yet do i not thence see any excuse they have that defie holy-dayes from this accident ; but , methinks it would rather become their greater zeale , and knowledge , to celebrate them so , as to rectifie that aberration , and to method and credit the reduction of its eccentricity : for , if great mercies and notable atchievements be remembred on these dayes , i see no reason but our customs to feast , and weare our best robes , and do every thing most triumphingly on these dayes , are applaudable : the heathen-herald taught clytemnestra this , when he tells her , that sad lookes , and narrow austerities do not become a free-day , which is devoted to the gods , the best of beings : and s. bernard highly encomiating the feast of all-saints , sayes to his friends and auditours , non ignoratis fratres , &c. know ye not , that men of the world do on festivals , feast splendidly ; and the higher the day is , the most dainty fare have they . this shews , that festivals were ever in account , because they were the relaxations of life from its constant portadge , imprisonment , and toile ; but , concerning the institution , nature , and qualities of this , tholossanus gives a very great and good account , as others also do , whom i shall mention in the notes on the chapter . that which i write this for , is , not to magnifie holy-dayes , as they gratifie any carnal principle in vaine men , which by them is pleasured ; or , in any opposition to tender spirits , whom some delight to grieve and contradict : god forbid any of these should prevaile with me , who , i hope , have not so learned christ ; but , my enlargement herein is only to allay ( if i might ) the animosity that (a) some have against holy-dayes , whereof that omnium animarum is one : and to shew , that crastino animarum is therefore set apart ( as i suppose ) by our law , to chuse this high officer in , because it supposes , the mindes and souls of the great men , then to nominate , being lesson'd with piety the day before , will have a great tructure of it the morrow ; and being convened there , before they have let the severity and honour of the precedent day evaporate , come big of it to the nomination of this officer ; who , by being elected on this day , gives name to crastino animarum ; as the massacre of the danes by the women did to quindena paschae , another law day . conveniunt in scaccario . ] this is the place where these great ones meet to chuse , in the exchequer , originally the court of the revenew ; whereupon polydore virgil would have it written scattarium , from the german word schats , or the saxon scacca , thesaurus , impositio , taxatio ; probably it may be so : for , it is the sea , into which all the rivers of publique revenew run ; every sheriff accounts for his office into it : and therefore , when in edward the sixths time , it was found , that the sheriff of northumberland for a long time had not accounted for his office to the exchequer , as other sheriffs did , but converted the profits of it to his own use , the statute of & of that king , c. . ordered redress of it ; and brought in that out-lying-deer into the herd , making him responsible as others were . concerning this court sir edward cook has written of late , as nigell is said of old to do , who had incomparabilem scaccarii scientiam & de cadem optime scripsit ; of this court therefore no more . thirdly , as the time and the place , so the persons electors are admirable to be noticed , regis omnes consiliarii ; that is , such of the lords , and others of the privy-council as will : for , this omnes is not necessitatis & coactionis sed capacitatis & juris . all of the kings councell may , if they please , and some of them must , and many will ; and with them comes the policy , and gravity of the nation . tam domini spirituales quam temporales . ] this is added , to shew the variety of our princes counsells , which , as they are of things that concern religion and policy , so are furnished with men oracular in both provinces subjects , divided in terms , and by names , of spiritualty and temporalty , so sayes the stat. h. . c. . not that physically there is any difference between a bishop , and abbot , and a lay-baron , for they are alike men , and subject to like infirmities , possible to deceive , and be deceived ; and alike are the votes of their baronies in parliament : but , the distinction is , to import a kinde of metaphysical difference ; as the clergy lords calling being circa res sacras ; imports , their mindes to be in sacris , holy men , having their conversation in heaven , whence they look for the high-priest of this profession to visit them with an euge serve bone ; these then who are men set apart to god in their order , and dignified above , and distinguished from vulgar men in priesthood , are called domini spirituales ; not that they pretend the pedegree of their honour from christ iesus : for , they knowing his kingdom not being ( in this sence ) of this world , their prelacy in that sense also is not : but , that by reason of which , they are spiritual lords is their baronies , which they hold iure ecclesiarum ; and by which , the kings of this land have erected them as homadgers to them for such baronies ; and the law and custom of the nation has incorporated them into the baronage inseparably : whence , though severall ordinances mounted against them for a time , battered them sore ; i mean not the act of carol. . but that of . c. . of . c. . of . c. . c. . & . of . c. . and c. . that of . c. , . yet god has brought them into their wonted right , to the free enjoyments of their lustre , with all the perquisites of it ; which , as they are never to forget , but to make their lives ( though not ) pillars of gratitude ; for , that has too fixed a name for so fixless a thing , as the life of man ( in his best estate ) is ; much less in old age ( which is the state of most of our reverend fathers ) but burning and shining lights of holiness , and exact conscience ; which , when they do , and as bishop iewell , one of them , once said heroickly , can deny their parts , and their relations , and their honours , but the faith and truth of christ they cannot deny . when thus i say the fathers of the church do adorn their order , preaching frequently , living holily , and dying comfortably : there are no oppugners of their credit and greatness ; but must-blush at their peevish opposition against them ; and such , since to the height of this character , this glorious church of england , from the reformation , abundantly has had , and i trust has ; and ever ( i hope ) by gods mercy will have : there will be no cause for any ingenious and noble tongue and pen to disown it , as it is held prelacy , for since the honour that is attending on it may , and has been subsidiary to piety , and may and has contributed much of its lustre to the bedecking thereof , i must be humbly bold to declare , my prayers shall rather be to god that he would sanctifie and preserve in all exemplary piety and charity this order , then to highten it above , or abate it from , what now it is ; for 't is well where it is , and may god ever supply it with pious and learned successions ; and may they ever continue in the kings and peoples love , as domini spirituales . et temporales . ] of these i have written in the notes on the chapter ; and the titles of both lords spiritual and temporal has been the language of so many acts of parliament , and for so long time that to be ignorant of it were to be sottish : for though in many authours , specially scripture , carnalis be opposed to spiritualis , and mundanus to coelestis , and temporalis to aeternus , yet in the rolls of parliament and books of their statutes , spiritualis and temporalis are matched . quam alii omnes justiciarii , omnes . ] this is to be pressely taken , all may , but do not , nor are necessaryly to come , but chiefly the two chief-justices of the benches , if they be present , so sayes the statute ; and though (a) fleta calls the barones de scaccario justices , and use intitles them to the power and honour of justices or judges , yet is not our text content to couch them , but positively sayes , omnes barones de scaccario ; though the statute prementioned nominates onely the chief-baron , making him one of the three prime regents in this choice , for the words are , by the chancellour , treasurer , and chief-baron of the exchequer , taking to them the chief-iustices of the one bench , and of the other if they be present : see the h. . c. . where these are also joined . clericus rotulorum & quidam alii officiarii . ] because the officers of courts were often clergy-men , therefore the term clericus was given to officers , e. . c. . but this great officer , called here clericus rotulorum , and so in the statute h. . c. . is , as i think , ( and if i err i crave pardon ) in later statutes termed magister rotulorum ; so in the satatutes & h. . c. . h. . c. . gard●in des rolls de nostre cancellarie , so sayes the old instrument , de forma mittendi extractas ad scaccarium . et quidam alii efficiaerii . ] though mention is made of other great officers of the realm in the statute r. . c. . yet more probably other then these , and perhaps some chief-officers of the exchequer who are necessary to be used , but who our text-master means i am not able to resolve , nor is it much material ; for the greater persons being ascertained the lesse may passe as of lesse consequence , for that they meet , and by common consent nominate and agree upon the names of certain gentlemen in every shire , and them present to the king to prick whom of the presented he please , is the main work , and that the chancellour sayes according to the now practice they annally do . nominant de quolibet comitatu tres milites vel armigeros . ] tres for the number , milites vel armigeros for their quality . three is a sacred number , tria sunt omnia was a saying of old , not onely for that three charactred the trinity , according to which the apostle sayes , there are three that beare record in heaven , the father , the son , and the spirit , and these three are one , but because this number consisting of even and odd contains 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which are the rise of plains and referential of the superficies , as plutarch's words are ; and sure when plautus calls a thief , hominem trium literarum , he intends such a subtlety and reach in him , that he can be even and odd , play the iack alone or in company ; being like alexis , not this nor that , but having utriusque temperamentum . as some other numbers have been noted extraordinary by antiquity , as twelve , seven , so this three , not onely , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ( alluding to the manners of three nations whose names began with cappa , the cappadocians , cretians and cilicians ; or as others , betokening those three men whose names began with that letter , cornelius sylla , corn cynna , and corn. lentulus , ) or not onely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , alluding to a custome of old , for the judges to allow condemned persons before execution , being filled with wine and good chear , to speak their mindes to three things freely , but also the notation of three is prefixed to three exoptable things which are called tria saluberrima , to eat so moderately as to rise with a stomach , to comply with reasonable labour and not decline it , to keep natures vigour uninjured , these are the three saluberrima . these are conceits of the number three , but not the reason of our law , that pitching upon the nomination of three , does it probably as there is plentifull choice , submitting to the king , who is absolute herein , if he finde two that are equally worthy and neither of whom he knows how to wave , because he cannot chuse both , to chuse neither , but take the third to the displeasure and disfavour of neither . milites vel armigeros . ] these are the names of the flower of the less nobility or gentry , what they heraldically import i have elsewhere shewed , that which they are here expressed for , is to necessitate the sheriff to be a man remote from the plebs ; no high shoe or bloudless man as we call men of no extract , but as the statute of lincoln requires , he shall have estate , that is , have sufficient lands within the shire to answer the king and his people and not to be in service : but as justices of peace are to be men of the best reputation , with other wise and learned in the lawes , so in other words sayes the statute of e. . c. . the most worthy in the county ; e. . c. . the most sufficient knights , esquires and gentlemen of the law ; r. . c. . . h. . c. . if such must be justices of the peace , then sure much more such should the sheriff be , who being praefectus comitatus , ought to have nothing of disparagement upon him , which he will have that has not a fortune to bear up the port. and hence was it that though by e. . men were compellable to take knighthood that had estates , yet if any were summoned that had not they were discharged ; nor were then any made knights who were not before made esquires : therefore kingston combatant with a french lord r. . being no gentleman , was , that he might perform it , made an esquire but no knight ; so carefull was the state to preserve the reputation of great officies , that they designed , none to them that were not of ability to keep up the port of them , which because men of breeding and estate can best do , therefore the text sayes , the persons nominated to be sheriffs must be milites vel armigeros . quos inter caeteros ejusdem comitatus ipsi opinantur melioris esse dispositionis & famae . herein appears , that as they must be knights and gentlemen of the county , that ( truely i think ) primitively was intended resident , dwelling , and abiding there , as the words of the stat. of h. . c. . h. . c. . in the case of elections to parliament are ; though i know use interprets it , having estates in the county , which is a kinde of fortunary residence . so , as they are to be men of bloud , birth , and estate , so , of fidelity and intelligence , knowing men in the duty of their place , and faithfull men according to what they know they ought to do ; for this i take to be the sense of melioris dispositionis & famae in general , and to this sense incline the words of the stat. e. . c. . where men fit to be intrusted with commissions of inquiry are called , the most worthy of the country as well for the king's profit as the commons , and the h. . c. . calls him that is to be a sheriff , a meet and sufficient man. but the specifique sense of melioris dispositionis & famae here , i suppose is , men of sober and regular life , men of orderly conversation , that walk worthy of their places and conspicuities ; for so dispositio is ranked with ordo in columella , quis enim dubitat nihil esse pulchrius in omni ratione vitae dispositione atque ordine ; so , disposita hominum vita pro bene constituta , & quae non fluctuatur is in pliny . thus we say a man is well disposed when he does keep a good guard upon himself and lives virtuously , which tully terms , disponere studia sua ad honorem , when he speaks and lives in print , which is , verba disponere , ut pictores varietatem colorum , disposition here being not so much the intern principle , as that which appears in conversation , the fruit of it ; and that this is the sense , appears from its adjunct or copulation , & famae , which is exegetical of it , for no man can live with credit that does not keep orderly hours , orderly company , and orderly methods in his station , as a christian , as a gentleman , as a master , as a neighbour , all which concentring in a person of worth , makes him as conspicuous for a man , as that house , which has art , vse , and pleasure in it , is for a building . et ad officium vicecomitis comitatus illius melius dispositos . ] well affixed , for gentlemen may be well-fortuned , well-affected , well-reported , and not be dispositi ad officium vicecomitis , for this office being an office of trust , requires the residence of the offices thus trusted within the county , that he may be ever at hand selvere debitum ; and this seems to me to in reason exclude out-lyers , unlesse in case of necessity , when that is admitted which otherwise is not , as in the statute of e. . c. . where the statute sayes , it shall not extend to great assizes , in which it behoveth many times knights to passe not resident in the county , for the scarcity of knights , for in all cases of necessity exemptions are void , h. . c. . then it is an office wherein use of discretion and reason will be frequent , and so it excludes weak and insolid men , for since experience tells us , that this office calls for wisdom of minde , when to doe , and what , and what not ; that being sometime true here , which quintillian in other cases said , est utilitatis & in tempore quaestio expedit , sed non nunc . this , i say , being the case of sheriffs in their office , men that have not their wits about them , and cannot disponere unicuique munus suum , as tully's phrase is , will be very unfit for it ; for it properliest becometh one that is , dispositu , provisuque rerum civilium peritus , as (a) tacitus phrases it : for the sheriff being the minister of the law must answer in his disposition the notion of disposition in rhetorick , rerum inventarum in ordine distributione , and thus when he does he is melius , that is legalius & potius dispositus , which in my apprehension excludes letter-lesse or unbred men ; yea , in as much as the sheriffwick is an office of action , sickly , decrepit , or other infirm men , are not melius dispositi , which in the case of jury men is expressed , in the stat. e. . c. . for the act of god infirming them , either the office must be done by deputation , or not be done at all : for , personally to perform it , they that cannot ride or move , are not to be expected , so that to be melius dispositus ud officium vicecomitis , seems to me to intend a man able and willing , to know and do the duty in the latitude of it ; which , onely men of wisdom , experience , and activity , personally can execute : but , because that of clemangis is in some degree applicable here , non perfectis vivitur hominibus , sed cum iis in quibus praclare agitur si sint simulacra virtutis ; and the law allows the supplement of under-sheriffs , who are ( i will not say melius , ) but dispositi ad officium : having oftentimes to them , committed by the high-sheriff , the whole , or part of the exercising and executing of the office of the high-sheriff ; ● herefore less punctuality in these particulars is necessary : for , the law knowing what dispositions under-sheriffs are of , has required two oaths of them before their execution of their office , see the eliz. c. . which if they shall make conscience of , they shall do well . ex quibus rex unum tantum eligit , quem per literas suas patentes constituit vicecomitem comitatus de quo eligitur pro anno tunc sequente . the choice of the officer is the kings , because the office is the kings ; the people and county the kings ; the law which he is to execute the kings ; and he calling out the single one , makes him ipso facto ponderous melius dispositus ad officium , and melioris dispositionis & famae ; then , to be below the endowments it deserves . supposing then the person pricked , or elected , out of the three presented , the next and great expression of the kings pleasure , is , by the signing of letter-patents , to which are affixed the broad-seal , for his authorization to be sheriff of the particular county , for that year then next following : which commission , or letter-patents , sealed by the broad-seal , or great-seal in the custody of the lord chancellour , compleats his authority as sheriff . for , no authority in the kings dominions is assumeable by any subject , but that which either is warranted by common , or statute law , or prescription , or by the broad-seal , which is so effectuall an authority , that honours , offices , profits , pardons , all the great things of the nation pass by it ; which was the reason that edward the first caused both the charters , of magna charta , and charta de foresta , to be sent , under the great seale , to all persons , and places of note , there safe to be kept : the great seale of the king importing his high good-will and pleasure , to have those darling laws inviolable ; yea , for that the broad-seal is so lively a print of sovereign majesty , the statute of e. . c. . sayes , there shall no writ from henceforth , that toucheth the common law , go forth under any of the pettit seales , but under the broad-seal : and the statute of e. . makes the counterfeiting of it treason . good reason then has the sheriff to see that he have the great-seal for his authority , which before he hath the text suggests . sed ipse antequam literas illas recipiat , iurabit super sancta dei evangelia inter alia , &c. this shews the wisdom of our princes , that before they will impower any subject , though never so great and good , by their great seale to do any thing , they will bring him under an oath , to do his duty faithfully and conscionably , according to their royal intendment , and the law to that purpose : now this security antecedent to this possession , the text terms iurabit super sancta dei evangelia ; ] which words denote both the matter of it , oath ; and the method and way of its administration , super sancta dei evangelia ; oathes are the sacred bonds that determine all controversie : not onely god himself is said to swear by himself , and to sweare to his people his love to , and care of them : but , the saints of god , in holy writ , confirmed , and assured any truth by oath , from which the nations learned the religion of oaths ; that as the iews did swear by heaven and earth , and by the temple , and the gold , by ierusalem , and by their own heads , which our lord increpates them for prophanating ; and after , per caput regis , & per legem , sic & sic : so the heathens had their rites and ceremonies in swearing , which obsignated the majesty of that part of religion . tholossanus has collected the several ceremonies of nations , and the security they took to reside in oaths ; and because oaths principally and properly are made to god , the scripture accounts oaths a part of holy worship , and accordingly the later iews did swear by putting their hands upon the books of the law , and this oath onely they held valid , saith drusius , adding , he knows not whether from this example comes the christians custome of swearing on the gospels ; which the christian world has embraced ever since christianity : ( in the gospels being contained the life , death , and preaching of that iesus who is our saviour and shall be our judge , and to whom god the father has committed all judgement of whatsoever is done in the flesh , whether it be good or evil . ) now this book so serious , so sacred , being that upon which the law of england appoints all men in england witnesses and officers to swear , adds to the emphasis of the oath , and brings it under a closer tye of religion then otherwise oaths would be ; for though socrates swore by a dog and a goose , and others had their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not onely their oaths that exclude every thought of god from them being rhodomontado'd to express their internal putidness , yet christians should either have the grace , not at all to swear , which is the letter of christ's charge , or when they do sweare before the magistrate , which is their duty to do being required thereto , to swear in iudgement , righteousnesse and truth , that is , secundum as well as super sancta dis evangelia . quod bene , fideliter , indifferenter exercebit & faciet officium suum toto anno , illo neque aliquid recipiet colore aut causa officii sui ab aliquo alio quam à rege . this clause contains the summe of his oath , the form of which according to the common-law is set down in the books , and the confirmation of it in this double ; that he shall do his duty in his office , benè to god , bonum benè , perform a good office goodlyly , that is , piously ; fideliter to the king whose officer he is , indifferenter to king and people , high and low , rich and poor , according to the mandats of the law and the duty of charity : benè as a christian , fideliter as a servant , indifferenter as an honest man ; who does what justice enjoins , unicuique tribuere , this is to be melioris dispositionis & famae then those are that care not what they are or doe , so they may live brave and dye rich : but this being a back-door to integrity , the common-law provided against , by that appointment of the sheriff to take nothing for the exercise of his office , but of the king , the master of it whose it is , and whose servant and bayliff the sheriff is , see the statute e. . c. . and when the statute of h. . c. confirms the e. . c. . it adds onely some small fees that the sheriff might take ; but after that this rule of the common-law was altered , and that the sheriff , coroner , goaler , and other the king's ministers , might in some case take of the subject ; it is not credible what extortions and oppressions have thereupon ensued , so dangerous a thing it is to shake or alter any of the rules or fundamental points of the common-law , which in truth are the main pillars and supporters of the fabrique of the common-wealth , they are the words of sir edward cook ; who , as very an oracle as he was , did not decline this very authority of our chancellour in both those parts of his learned comment quoted in the margent , but gives him a most noble testimony as in the notes on the subsequent chapter shall appear . chap. xxv . quotiescunque contendentes in curiis regis angliae , ad exitum placiti super materia facti devenerint , &c. this chapter treats of juries , which sir edward cook terms the most exact and equal means of producing truth of any in the world ; and because , what our chancellour in this and the following chapters delivers of them , is said by that sage , to deserve writing in letters of gold , therefore will i begg of god the grace , and of men the pardon to endeavour some dilucidation of it analogicall to it . contendentes . ] plaintiffs and defendants , actores & rei , are in all lawes said to contend , not malitiae , sed iustitiae causa , not so much from anger and choice as necessity . this phrase contendentes is used in all actions of vehemence , rivalry and competition , and it imports not only a preoccupation of that we are carryed towards by the velocity of love and rage , which gives wings , and speeds seisure , in which sense our lord seems to intend those words , the kingdom of heaven suffers violence , and the violent take it by force , ( faith putting men , while on earth , in a fiducial or second real possession of it ) but also a prostration and annihilation of that we strive against , contendere quasi contundere , not onely to alarum and storm , but to raze the walls and foundations of that we assault , this is the nature of contendere , which , when it is the fruit of uncharitableness , is to be deprecated and avoided ; so did abraham with lot , let there be no contention between me and thee , for we are brethren , for thus it is a fruit of the flesh , displeasing to god and exclusive of heaven : thus contendentes christians ought not to be , but as it is the tryal of truth before the minister of god the publick magistrate , in curiis regis angliae , so it is lawfull and necessary . and therefore the king's courts are allwayes open for administration of justice to all persons , and this the law has wisely done to express its care of christian charity and humane justice : hence curiae ( varro derives ) from curae , and festus seconds him , curiae est locus ubi publicas curas agebant ; whence agnus curio in plautus , a carrion-lamb , quasi confectus curis , saith becman : this i note to shew how much magistracy deserves of subjection , that it thus carks and cares for remedy of evils , and appoints sanctuaries against violence ; and does that not partially and by piece-meales , but fully and to all purposes , ut nullatenus esset defectus iustitiae , for all the chief courts are contemporary , so that no man can say this is elder and that is later of them , saith sir ed. cook. adexitum placiti super materia facti devenerint . ] this exitus placiti is the same with the civilians causae status compositio , and it is previous , and in potentia proxima to tryal . concerning it , see the notes on the twentieth chapter , where the materia facti is to be tryed by the jury of twelve men , who are to try the fact , as the judges , i humbly conceive , are the quastio iuris , either upon demurrer , special verdict , or exceptions , for cuilibet in sua arte perito est credendum . now as the justices are alwayes ready in order to hear causes , so do they of course send out writs to empannel juries to serve , for the most part , on those causes , and that concitò , so are the words , concitò iustitiarii per breve regis scribunt vicecomiti . ] this is according to the rule of the common-law to which our text relates , and which the later statutes illustrate and make addition to ; so sayes the statute h. . c. . and therefore the text sayes , the writs preparatory shall issue forth concitò , because the law allowes time enough to prepare , and abhorrs surprise ; the design of the kings courts being to promote justice that it may run down like a mighty stream ; therefore copies of pannels are to be allowed the parties six dayes before the sessions of the justices , e. . c. . h. . c. . iustitiarii . ] of these i have written before , and shall doe in the notes on c. . yet i crave leave to write , that within this word are contained not onely the justices of the courts at westminster , but also justices of assize , so is my authority from sir edward cook. per breve regis seribunt vice-comiti ] the venire facias issued forth according to the common-law , and the statute h. . c. . is called scriptum iustitiariorum , because it issues forth of the office of the court which they preside in : this instrument of authorization to the sheriff to summon a jury , is termed breve , as much as breviarium , not only in the common , but even in the civill laws , rationum libri seu nominum & debitorum breviaria nominabantur ; thus lampridius tells us alexander knew all his souldiers so well , that he had the breves , or notes nominally of them all ; so (a) aurelian is said to have breve nominum ; hence comes the breves in ecclesiastical (b) writers , especially the late papal ones : many breves and bulls from rome we have had mentioned in acts of parliament , and historians ; thus it grew in use with lawyers very antiently here , to call the summaries of the cause briefs , or breves , and in english writs , because written ; so bracton , fleta , and sir edward cook (c) discourse at large , of both original , judicial , reall , personal , mixed ; and other writs , and especially fitz herbert in his natura brevium , and the register , all which point to the knowledg of writs , as a great piece of law learning . quod ipse venire faciet coram iisdem iustitiariis ad certum diem per cos limitatum duodecem probos & legales homines de viceneto , ubi illud factum supponitur . venire faciet . ] this is to be understood , not compulsive , but declarative : the sheriff is not by the posse comitatus raised on them to compell them , but by summons to notifie to them their return , and to shew them the pannel ; e. . c. . h. . c. . and if any juror be returned that is not summoned , the sheriff is finable : h. . c. . eliz. c. . and , in case the summoned have no just excuse which the law allows , they loose issues by non-appearance ; eiiz. c. . but the act of god or other just detinue shall excuse them , provided it be made out to , and allowed by the court. duodecem probos & legales homines , &c. ] see my notes on the twentieth chapter , and concerning the number twelve , see lorinus in actor . v. . salmeron part , tract . . tom. p. , . tostatus in matth. c. quaest . , brentius homil in . c. lucae , spelman gloss p. . where the number is notably instanced in , as esteemable in all laws , especially when together , with the numbers there is weight in them ; for , that is the import of probos & legales homines . ] as much as sacramentales , men that know , and make conscience of their oath ; liberi & legales , men that are engaged to no lord , so as not to use the freedom of their reason , and integrity ; nor are lureable by rewards , or pliable through need : but , such as may dispend . shillings by the year , at least of estate of free-hold , out of antient demesne ; so sayes the statute h. . c , . men that are de vicineto , next neighbours , most sufficient , and least suspicious ; e. . c. but all the learning of those being most elaborately discoursed upon by sir edward cook , i forbear writing further here of it . qui neutram partium sic placitantium ulla affinitate attingunt . though there be many just exceptions against jury-men , when summoned , which not onely daily practise , but good authours justifie ; yet the most of them are omitted particularizing here , and onely this of affinity is alledged , to be a barr to the sheriffs summons of any who is so related to either party ; for , affinity being contracted by marriage , and women being potent orators with their husbands , who naturally and wisely indulge their wives ; the common law wisely excludes these alliances , left their relation should preponderate their love to justice , and they forget to do right , when so to do , is to wrong ( according to the vulgar notion of wrong ) their kinsman : and if this were part of the cause ( as i believe it was ) of the statute r. . c. . that no man of law should ride judge of assize , or goal-delivery in his own country or where he dwells , confirmed by h. . c. . and by the h. . c. . where the words are , whereby some jealousie ( speaking of some that contrary to the r. . had obtained to be justices in their own counties ) of their affection and favour towards their kinsmen , alliance , and friends within the said county or counties where they were born or inhabiting , hath been conceived and had against them by the king 's most loving subjects of the same countries and counties . therefore the enaction is in the negative , and because justice ought not to be deferred or denyed to any man , nor ought any man to be condemned but by the laws full tryal h. . c. . that is , by good and true impartial juries , consisting of men neither indigent , nor byassed ; for so the common-law intends , against which no judge is to goe , e. . c. . e. . c. . good cause is there that juries ( without which tryals and judgements cannot legally in ordinary be ) should be compact of such as may verdict justice , which they will readyliest doe , when they are uninterested as well in point of alliance as profit . ad recognoscendum super sacramenta . ] that juries are to be sworn before they are empannelled i have heretofore wrote of , what they are to doe in these their gears the word recognoscendum makes forth , and that is taken in authours for aestimare , considerare , to heed and observe so , as to give a clear and sad judgement of the nature of that they recognize ; so tully , literas tuas libenter legi recognovi enim tuam pristinam virtutem , thence dona , amorem , vetera recognoscere is in good authours frequent to expresse the lively characters and great impression of any thing in the minde , and the value of it . sipontinus by recognoscere understands , opus compositum emendandi , aut limandi , aut reprehendendi causa revidere , to review , peruse , and ponder before we passe it , as pliny sayes he did four times at least every thing he wrote , and that at some intervals , and to consider it as if it were more concerned pro regina justitia & veritate , then pro domina phantasia regina , so to look narrowly into it , as that we spie every title and cranny of it ; thus suctonius uses the word of caligula . equites remanos severè curioseque nec sine moderatione recognovit : the sense of our text then is , that the jury are so to follow the cause with their attention through the whole manage of the evidence , and after when they are from the barr by themselves , so to revive and make use of their memories , notes , and observances , that they recoming to the barr , and being demanded by the court whether they are all agreed , shall plenarily affirm their verdict and answear chearfully by their foreman what the common conclusion of them all is . and this the law calls verdictum from the presumption it has that those that are iudges of it do therein consider the allegations , defences , and proofs , and after poising them give the down-right to that side that has truth on it , whether plaintiff or defendant , which is the summe of our text. quo adveniente die , vicecomes returnabit breve praedictum coram eisdem iustitiariis , unacum panello nominum cornndem quos ipse ad hoc summonuit . this is according to the common law and the prementioned statutes upon it seconded by the subsequent ones , h. . c. . and others ; and the tenor of the clause is exegetical of the lawes punctuality . injury is done which the law must right , a complaint or declaration is entred in the court , pleaded to , issue joined , and to compleat it a writ is directed to the sheriff to summon a jury of twelve able and honest men to try the matter of fact ; the sheriff observes it , considers , and frames fit men into a pannell , summons them to the certain service upon the certain day of the return of the writ ; the writ with the pannell he returns to the court , iisdem iustitiariis , from whom he had his writ to summon , and this brings the cause to tryal by twelve , or the failing jurors to lose their issues : so exact is the law that it leavs nothing uncertain , but requires an account of all its intrusts , returnabit coram iisdem iustitiariis breve praedictum . vna cum panello . ] this is a word of art applyed to that piece of parchment which is table-wise , in figure oblong and narrow , being the diminutive of a pane , which is large and square so pannel is the name of that habiliment which horsemen use , the pannel of a saddle , and pannells of waindscot , and panes of glasse are frequently understood by us ; probably this name was given to the parchment from the tabular figure of it , it being frequent of old to write in tables or panes and pannells of stone or wood before parchment or paper came in use , yea here in england it was usual heretofore , and yet in some places is , to write in panes or tables of slate . this is the rise of the word , which , as it relates to jurors , may admit of an etymology , which though it be not genuine , yet may be harmonious to the sense of the text. pannel pan-all , a word parted between greek and english , borrowing from pan the god of rusticks its more frequent use ( for country-yeomen ride most upon pannells , ) and from all , as the twelve in the iury make but one body with one heart to try , and one tongue to deliver judgement on the fact in issue , that which ( according to this ) is t s legal import , sed hoec obiter & leniter . quos ad hoc summonuit . ] this whole subject of iuries is so learnedly written on by the prementioned oracle , that it's arrogance almost to endeavour addition , as 't will be to little purpose to offer the learned reader a repetition ; that therefore which i enlarge on is that which by him is omitted , the grammatical notation of the word , whence the legal follows . summoneo is a law word , not of the sense that moneo or admoneo is , for that is the act of ones equall or friend , and a branch of charity , which the apostle a directs to , and which (b) moses observing grew the man he was by it , as it declared the regularity of his soul , which knew obedience became it , not this sense has summonitio barely , but an aggravated one , summonitus quasi submenitus ( m being doubled for euphony and b rejected ) admonished under the pains and detriments that the contempt of the king's writs and courts can and will inflict , which though it be not high , yet is enough to punish the purse , and declare also the displeasure of authority , even as much as those words , as you will answear the contrary at your peril : which to avoid as the summons is to be punctual , and that if need be upon oath , so the issues lost are certain to be levyed , except the court do alleviate by admitting the defaulters excuse , as by the law they may . quos si veneriut utraque pars recusare poterit , this is done in pure favour to justice ; for , though the sheriff be a sworne officer , and ought not to return men partially called , but to take them promiscuously , where they topically are ( admitting there be sitting men in the hundred to serve , as every where in england diffused there is ) yet , least the sheriff should by a bribe , which exoculates justice , or for favour or envy pack a jury , the law allows exceptions , and admits a scrutiny of the pannell , the manner of which i refer to the grave judge , whom i often herein quote , most highly applauding the wisdom and justice of the law , thus to obviate a michief , so out of measure mischieveous , as but for this there would be in all causes , and against all persons . for , were the sheriff left to a latitude , and what return he makes must serve , though never so tortious , partial , and impotent , that partiality would be found in juries that has been found every where , where sidings and packings are to promote parties , and suppress justice , which , because the law hates , therefore it allows these checks to all exorbitances , which , had that peevish melvile in the presbytery of st. andrews in scotland considered , as reasonably he ought , he would not have endeavoured boysterously to carry the choice of the minister to the church of lockhart , when he had but six only of the fraternity with him , against mr. bachanans side , with which there was of the same body nineteen or twenty , blustring against the major number ( which every where carries it ) with that impudence , suffragia sunt ponderanda non numeranda ; the pride and injustice of which partiality is so much the more detestable , as it pretended better then it practised . to prevent which , the text sayes , vtraque pars recusare poterit , and that alleadging their reason , dicendo quod vicecomes panellum illud favorabiliter fecit pro parte altera : viz , de personis minus indifferentibus ; concerning this fee sir edward cook on littleton , p. , , &c. and to remedy this , by a sit return , was the statute of eliz. c. . made ; and that juries excepted against , might not occasion the causes non trial , the and philip and mary , c. . grants a tales cum circumstantibus , the great end of the law being to promote justice ; all proper means thereunto is promoted by the law , which this being , the statute was very rightly made , and very worthily continued . qua exceptio si comperta fuerit vera per sacramentum duorum hominum de codem panello , ad hoc per iusticiarios electorum , mox illud panellum quassabitur . this is the common law , in case of exception , which yet is appointed to be approved just , by that which is by gods declaration an oath , the diremption of all controversie : and by the oath of two ; that in the mouth of two or three witnesses every word might be established : now this the law does , as well to prevent levity and spleen against the sheriff , as to repress his partiality and injustice to the cause ; since , as if it be an exception on good grounds , it must stand ; so if it be not , it must not be allowed for such : therefore the exception must be exceptio , not prolata , but comperta ; not alledged , but made good by matter found after enquiry ; comperta vera , that 's exception indeed , when t is not onely words , but truth ; not furmise , or slander , but reality made out by discovery of the motives and methods of it : and vera per sacramentum ; not by the belief or perswasion , but the oath and veracity ; not of one , or all , but of two : nor of any two , but duorum de cadem panello ad hoc per iustitiarios electorum ; the best and most accomplished of the pannel , whom the judges suppose least privy , or plyable to partiality , these are to consider the exception : and , if upon the oath they have taken , they judge the exception just and true , mox panellum illud quassabitur ; not only shall the pannell be shaken , and under a harrass and suspition , but shall be totally nulled and evacuated . quashed quasi ashed , reduced to its first nothing , void , and of no effect . et iustitiarii tuns scribent coronatoribus quod ipsi novum faciant panellum . the sheriff having forfeited his credit once , the law trusts him no further with the return of the new pannell , but a writ issues forth to the coroner ; coroners were anciently officers of great credit , but time discrediting them , their rate was fain to be raised by the statute e. . c. . which sayes , it is provided , that through all shires sufficient men shall be chosen to be coroners of the most wise and discreet knights , which know , will , and may best attend upon such offices . the office of a coroner , the statute e. . exemplifies , and fleta , lib , . c. . but more particularly the statutes of e. . c. . h. . c. . & philip & mary . . h. . c. . h. . . e. . c. . h. . c. . h. . c. . h. . c. . and the dignity of this officer appears in that he is the most ancient officer of the crown , and was wont to be of knights , and the best men of the county ; yea , and the greatest judge of the common law courts , the chiefe justice of the kings bench is the chiefe coroner of england : whereas then t is said , scribent coronatoribus . t is intended of the coroners of the shire , or the hundred , that they being officers as well as sheriffs , and under-sheriffs , h. . c. . and being men of estate in the shire , according to the statute e. . c. . . shall make a just and indifferent return of persons , omni exceptione majores , and that is no novum facere panellum ; id est return men to serve in it , that fear god , and love truth , and that will do nothing for favour or affection against them : which , it they shall not do , as fall out it may , that corruption may go thorough the warp and wooff ( as men proverbially say ) of these officers ministerial , etiam & illud quassabitur . et tunc iustitiarii eligent duos de clericis curiae illius vel alios de codem comitatu , qui in praesentia curiae per corum sacramentum facient indifferens panellum . this is the third remedy of partiality in return of juries , the justices may for default fault of the sheriff and coroner chose two clerks of the court ; now clerks and clerici have divers acceptations , generally all men literate were thus called , and because church men were mostly of old such officers , therefore all men that are bookish are said to be clerkly . thus in the stat. we stminst . those there called clerici were of old magistri cancellarii , and saith sir edward cook , were associated to the lord chancellour : a eleta calls clerici , honesti & circumspecti , and in stat. & h. . c. . mention is made of the six clerks of the chancery , who , because they were clergy men ( suppose ) and were not marriable according to the canons , are by that statute allowed marriage ; so in the e. . c. . the clerks of the exchequer are allowed non-residence from their churches ( for clergy-men they were ) and the reason is given by the statute , and such things as be thought necessary for the king and the common-wealth , ought not to be said to be prejudicial to the liberty of the church . clerici then in the utmost of the notion is not meant here , but onely for attendants in the court , who are honest knowing men and will do their duty being sworn and called thereunto . thus mention is made of clerks in the statutes h. . c. . h. . c. . h. . c. . & h. . c. . and many other statutes , and these notwithstanding the law couples ; not to one of them does it commit the reformation of antecedent errours in pannells , but to two clerks the law commits it , two , because two are better the none , less probable to be byassed and corrupted ; vae seli is true even in this sense , for as the comedian sayes , that which one hand does is seldom effectually done ; our lord therefore sent out his a apostles by two's , that they should comfort and assist one another in the work of their ministery : as natures perfection is made up of two , so the lawes execution ( which is the life of it ) in this case of juries , is accomplished per duos clericos , and therefore here is provision made for the continual , due , and speedy execution of the law , saith sir edward cook. this being done and the pannel not being exceptable against , the law , that abhorrs corruption , avoids also delay and progression in infinitum , thereupon a proceeding is to tryal , and the impannelled come into court. sed cum venerint sic impanellati , &c. still the liberty of exception against the jury is allowed , and that not vagely as expression of humour or design of protraction may aim at : for the law being ars aqui & boni hates and declines that , but as the exception is rationally grounded , and as it has a more then ordinary right to carry it to the centre of credit and approbation with the court. dicendo quod impanellatus ille est consanguineus . ] this is to be understood of kin by the whole bloud , ex utroque parente , and that this nearness may have great influenceon men is clear in the examples of melampus to byas , xerxes to mas●stes , of scipio numantinus to fabius , of the two brothers , one in pompey's army , the other in cynna's , which volateran mentions , of the two brothers banished whom falgosus writes of , of tyberius to drusus , commodus to his sister , leopold arch-duke of austria to his brother frederick the fair , with hundred of others , but above all there are three that i read of most remarkable , the first , iazates king of the adiabenes , who , though he had four and twenty sons , yet left his kingdom when he dyed to his onely brother monobazes ; the second is of lucullus the roman senator , who though much elder then his brother marius in love to him would not be a magistrate , till his brother came to years to be a magistrate also ; the third is of antony corarius and gabriel condelmarius venetians , and nephews to gregory the twelfth , who were so endeared one to the other , that they became monks in one house , anthony being called first by his father to rome would not go without his brother gabriel , nor would he accept the bishoprick of bononia , till his brother were bishop of siena , nor would he be cardinallated , till his brother had the cap also , both of them were legates à latere in the council of constanse , at last gabriel was called to the popedom by the name of eugenius the fourth , when anthony saw his brother had given him the slip , he returned to his cloister at venice for grief : these and the like instances of the vehemence of consanguinity , give the law occasion to make consanguinity an exception to a juryman . vel affinis parti alteri . ] this is kindred by marriage , of this i have written heretofore , see tholossanus and the many authours in him , and the law is exclusive of this because it is such a nearness , that , those that are next of kinn cannot by the civil lawes be compelled to witnesse against one . vel amicitia quacunque tali sibi conjunctus . ] that is , not friendly at large , but intimate and strict , for nescit nomen amicitiae qui metuit , he that has a friend of a iury does not mistrust his inclination to , and endeavour for him and his cause . indeed friendship is the potent magnetique that charms all , agellius writes a whole chapter of what a man ought to do for his friend , and tully penned a whole book de amicitia , and seneca , plutarch , plato , and all moralists reckon friendship inter suprema vitae munera . friendship the onely riches and happiness of life is that which ought to be admired above all , for it makes the haver of it more rich then phoenix the thief that did by it so great robberies . friendship is an union of souls and senses to a through compartization , to become as blosius was to gracchus , obsequious in all things , to sympathize in the worst of conditions , to make them partakers of our advantages , to consult them in our straits , to live theirs , yea to dye theirs ; this is friendship , to be a member 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , this is to be a friend , as the proverb is , more necessary then food or fire ; indeed the friendship of lucilius to brutus , of coelius to petronius , of ticinnius to cassius , are great , examples of cogency to men under the like engagement , and hard it is to extricate blosius cumanus from graechus his obligation on him , which has him so fast , that hee 'd burn the capitol to please his friend . friendship is such a catch and device of hold fast , that scipio africanus would not stand competitor with pompey his friend for the greatest honour . there are few rutilus's who can withstand their friends importunity to do injustice , and reply to them , your friendship is not worth keeping if it tempt to unjust things ; nor can the athenian cleon be matched in that more then manly self-mastery , for before he took charge of the common-wealth , he called all his friends into one place , and returned them their friendship , quitting all relation to them on that score . all these examples shew the reason why the law makes intimate friendship a cause of challenge to a jury-man , because it is apt to enervate integrity , and to make a man incline to that scale that his love lodges in , which is the cause that as men of alliance and friendship , so of unindiffereny are challengeable : see concerning the latitude of this sir ed. cook in the forementioned place . sic quoque fiet de omnibus nominibus impanellatorum , quousque duodecim corum jurentur ita indifferentes . while the jury are swearing , exceptiors or challenges , may be made till twelve , which are the number of the jury , be filled , against whom no challenge has been ; these empannelled , ( of which four are to be hundredors ) that is , of the same hundred where the fact was committed , and all of them of the value of . s. the cause is tryable and concludable by them : these things the law requiring is punctually to be persued , not that it hearkens to calumnies impertinent , for in all times there has been experience that ill will seldom speaks true , and partiality delights to make worth theonino dente rodi , the mischief of which by the effects called succum loliginis & nigrum salem , is so aspersive that it does cum morsis addere & famae maculam ; not that the law desires hereby to deferr the tryal of the cause to the injury of justice , for that it abhorts , allowing exceptions no further or freer then to make the jury indifferent men , who , when they are impannelled to their number , are recorded , then stabit panellum , ] provided they that are of it be of . s. in lands , tenements , or hereditaments , as , et quilibet iuratorum hujusmodi habtbit terras vel redditus pro termins vitae sua ad valorem annuum s. this is added to prevent poverty and necessity , by which men are apt to be taken off by fear and favour from integrity and justice ; which the law intends to pronote in trials by juries : now , though in places where juries are not to this proportion haveable , challengers of reins deins le gard , were remora's to tryals , the statute of h. . c. . took that away in london , but yet , for ought i know , retains in countries ( where free-holders of value are numerous ) the limitation to men of shillings a year , which , though it be but a small fortune now , yet was of old much more considerable : for , silver in the saxon time at d. an ounce , though it was risen to d. and so continued as * one faith , till henry the eighths time ; yet then it was but the third of what it is now ; and all things else were but low rated to what now : in the ed. . c. . mention is made of . marks per annum for an esquires value , and c. . of knights of the same value , and marks accounted knights of great estate ; in of the same king c. . no man was to give for the hire of a priest above s. d. a yeare ; and if he had his board , but s. d. in money : but by the h. . c. . a parish priest had . l. for his board , apparel , and other necessaries ; so stood the rate by this statute till the iacob . and then c. . it was repealed : and e. . c. . wages of workmen was very low , a master carpenter d. a day , a master free-mason d. other masons d. servants . d. ½ , tylers d. and their knaves d. ½ ; coverers of fern and straw d. and their knaves d. ½ , without meat or drink ; when in the of h. . wheat was at d. & d. a quartar , and barley at d. d. when l. a year was a justice of peace his value ; h. . c. . ( not long before the time our text was written in ) and five marks per annum a man of values estate , e. . c. . and d. d. the price of a horse ; h. . c. . not to mention the prises of corn in the statute h. . nor that in e. . time , l. a year was a great estate ; and e. . knighthood was to be taken upon it . not to insist on these , even in the memory of our great grand-fathers charges aad rates are incredibly enhanced , by h. . c. . t was penal to sell the finest scarlet cloth in grain for above s. a yard , and the finest other cloth for above s. ; in the h. . c. . french wine was not to be sold above d. a gallon , nor sack above d. and in the of the same reign , c. . no man was to take for a pound of beefe , or pork , above a halfe penny ; of veale , or mutton three farthings : and less where sold for less . the mannor of burlew in cambridge shire containing acres of arable , acres meadow , and acres of pasture , was at a rack rented but at l. a year ; when these , and all other things were at the prementioned rates , which , in a good measure they have been since our chancellours writing ; fourty shillings a year was somewhat considerable , as a convenient support to life , and a delivery of the possessor from temptation to perjury , and a determent of him from all kinde of unjust and fraudulent demeanour ; since upon his offence the law will take hold of his estate , which he having , is thereby solvent ; and therefore this value of the jurors probably being a good help to the honesty and honour of jurors and juries would do well ( if the wisdom of the state think also so , and please to consider it ) to be sutably preserved by enhansing the value of jury mens fortunes , according to the value of rents , and prizes now ; ( l. a year being as little for a free-holder now to have in estate , as s. then . ) and , if ever justice had need to be provided for , and that in this very point of juries , never more cause that the best men of fortune and breeding should be returned and serve on them , then in this age , when forgery is so rise , and knights of the post so audacious , and against which there is no so sovereign means of anticipation , as brave and knowing juries , who neither will slubber over the consideration of the evidence given them , nor be meale-mouth'd to request the courts interrogation of such scruples as they are inquisitive about , and judge materiall to the dilucidation of the fact they are serving upon the tryall of . et hic ordo observatur in omnibus actionibus & causis criminalibus , realibus , personalibus , praererquam abi debitum vel damna in personalibus non excedunt quadraginta markaes monetoe anglicae . hic ordo observatur . ] this is purposely set down to signifie the lawes reverence of order , as that great favourite of god , by which he rules the common-wealth of this world : hence is it that the humane nature attributes to order a kinde of divinity , not onely as it is essentiall in god , but as it is quiescentiall of all those disasters and tumults , that but for it would be every where , and in every thing ; which the heathen observing cries out , confusion and the trouble of settlements is every where mischievous : because as the order of nature is of god , so the order of reason is from man , who regulates and disposes his endowment by fit and proper modes of operation and convenience , to both inferiour and superiour purposes , of politique and christian life : hence is it that not onely order is ascribed to creation of the world , but to the continuation of every particle , and thing in it ; yea , take away order , and nothing remains but non-entity , or that which is next to it , confusion . what seneca said of solitude , is true of order ; take that away and ill counsells are busie , then mischiefe to mankinde is machinated ; then evill desires and coverings are set on foot : then the mindes of men ( however before modest ) shew themselves in all their villanous licentiousness . for if order be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. as philo's words are , the consequence and series of things preceding and following ; then without order no account can be given of any thing , so as to make it appear beauteous and usefull : this made life and death , peace and war , law and trade , arts and sciences , religion and policy keep its order ; yea , of all orders that concern this world , none more then the hic ordo of our text , which is ordo of judgments , for deciding rights , and punishing offences . for , though the romans took care of their ordines ( of which brissonius gives us a very notable account , and of which too much can hardly be said ; the ceremonies , and extern part of them , couching the most substantiall and consequentiall nerves and ligaments of civil society : according to that of theodorick that common-wealth is most happy which does abound with conspicuous subjects ; as the firmament is illustrious which has the embossery of glistering stars ; not that dignity qua such betters men , ( for that is only the gift of god , and the work of virtue ) but it renders men more discreet and circumspect , as they are prescribed by it , the most excellent and exemplary order of life . ) i say , though the romans loved order , yet the care that the civill and common laws have circa ordinem iudicialem civilium causarum , as tholossanus his words are , is most notable , as that immoveable method from which there is no recess but with danger and inconvenience ; therefore the text sayes not hic ordo suadetur , or hic ordo observari debet : for , many things are fairely commended by power , that are not embraced by practice ; and many things ought to be done , that are not accordingly done as they ought : but the words are hic ordo observatur , as if the chancellour intended satisfaction of the prince , and in him of all men : that in all changes and vicissitudes which crowns are ( in common with all sublunaries ) subject to ; the same order yet remains in the midst of them unreversed , all men in this nation being concerned , how various soever they are in other matters , to carry on this very way and method of triall , and no other . praeterquam ubi damna vel debitum in personalibus non excedunt quadraginta marcas monetae angliae . this is a salvo to the general rule : for , the law proportioning the quality of the jury-men to the quality of the matter in triall , as it requires more estate in those that trie title of land , which is called realty ; so , less in that which is of lesser value , as personally esteemed . the value of juries in great causes heretofore has been observed s. per annum of freehold out of ancient demesnes , or what is equivalent to it ; and by the eliz. c. . it is advanced to t l. land , because sheriffs were found to spare at home the most able and sufficient freeholders , and to returned poorer and simpler sort , least able to discern the causes in question ; and most unable to bear the charges of appearance and attendances in such cases . for reformation whereof the value of jurors was enhanced , which though it be not applicable to corporations where men of such value are not ever to be had , by reason of which there is a provision in the said statute ; yet is it for the most part , and where it may ( as in hundreds and counties it may ) to be practised : for as the law compells not to impossibilities , so does it not allow neglects or obstructions to justice , which , as they are occasioned by peremptory challenges without shewing cause , which was the indulgence of the common law in the king's case , till by the statute of ed. . it was otherwise enacted ; so does it favour tryals in places where men of such value cannot be had . like law because like reason there was for that enaction in the statute ed. . for though therein was required that every juror that passed in tryal out of his proper county should have land to the value of . s. at the least ; yet is there a saving of the law 's former requiry of . s. lands , and of such other value in towns , cities , and burroughs as hath been accustomed , which shews , that the aim of the law is to promote justice , and to prescribe nothing but what is possible and feasible to that end quia tunc non requiritur quod iuratores in actionibus hujusmodi tantum expendere possunt , faith our text. ] what then may the promiscuity of men try the cause , shall any he that has a face be admitted without challenge or exception ? nothing less ; for , as the common law required men well-to live , as we say , such as having estates of their own , know what it is to get and keep , and so are likeliest to be sparing of casting away another mans by rash or heedless verdict ; and hazard their own by attaint for perjury : as i say , the common law limited who and who not should be returned ; so divers statutes subsequent to our text has enacted , especially in the city of london , where , by reason of the great confluence of people , and trade , personal actions abound ; by the h. . c. . no person is to be empannelled in the courts of the said city , except he be of lands , tenements , or goods and chattells , to the value of fourty mark ; and , that for lands , tenements , or actions personall , wherein the debt of damadges amounteth to the summ of fourty mark , or above , no man be empannelled except he have in lands , tenements , goods and chattells , to the value of . marks ; which the statute of h. . c. . seems to make analogous to the . s. per annum required of freeholders in counties by the law ; and thereupon enables them to do what they can in their condition by the law : so , that the law being intent upon justice , and the equall and impartiall conduct of right means to that important end , provides for every circumstance , as well of men as things . and in men , that they shall be of value , properly english : that is , of intrinsique worth , whose estates shall be valuable , as if they were bullion , for that is the sence , monetae angliae . ] england being a noble kingdom , whose sovereign stamps no coyne but what is standard ; not onely made passable by a statute , ( for so power may make money of leather or metall ; as the king of spain frequently doth to be currant money ) but passable " " because gold and silver ; passed the kings mint " " and returnable thither with the loss onely of coynage ; and this is called the money of england : h. . c. and to preserve this from abasement and undervaluation were the statutes of h. . c. . r. . c. . yea , on this ground was " " and is adulterating of the kings coyne (b) the currant money of england made high treason e. . diminishing of it high treason , eliz. . eliz. c. . all which i instance in to explicate the term monetae angliae . ] to be indigitative of reall value ; and applyed to the juror , for that it intends him really worth , pecuniis numeratis , a legal value , which in this case is left to the justices discretion , according to common reputation , and the judgment of wisdom , which is presumed ( and that not groundlesly ) to be in those venerable sages ; therefore wisely left to their discretion . habebunt tamen terram vel redditum , ad valorem competentem , juxta discretionerae iastitiariorum . habeburt . ] that i conceive to be as much as praesumuntur habere ; for judgement of discretion is charitable where it knows nothing to the contrary , and justices when they have no cause , will not seek a cause of doubt against a man where he is reputed to live in fashion and to pay scot and lot as we say . terram vel redditum , ] that is lands , or houses called candle-rents , or annuities , or rent-charges , i suppose , to a proportion of equality to the matter in issue is corapetens valor , within the text. and so , i think , the reverend justices will declare it , and their judgement must stand ; for the law sayes , according as the text quotes it , iuxta discretionem iusticiariorum . ] that is , according to that natural and learned judgement that their years , study , and place enables them to and presumes them of ; and this is not that vage discretion , in better english arbitrariness , which empson , and dudley obtained to vex the subjects by in henry the sevenths time , and for which they suffered deservedly ; but the discretion of the iustices that the statutes of h. . c. . h. . c. . intend , which is the proportion of the qualification to the drift and scope of the law. alioquin ipsi minimè jurabuntur , nè per inediam & paupertatem iuratorum hujusmodi de facili valeant corrumpi & subornari . this is the reason why the law requires ability of estate in jurors , not that it thinks poverty inconsistent with integrity or wisdom , the endowment of those that have no inheritance besides it ; or that it expresses thereby an evil eye to poor men , because god's is not good to them in a fortunary way : nothing lesse , the chancellour is of a more pious and prudent genius then thus to precipitate , for he knew , that a poor man by his wisdom delivered the city ; so the wiseman has told us , and we may know that many mean estated persons have been very contributive to the good of their countryes , as by name sarbolla that mean candiot , who , when bressia was besieged , and the venetians knew not what to do to relieve it , made offer to the senate to undertake the succour of it , which they accepted , and he by his art did bring over land , and over mountains and hills , mighty vessels from venice to the lake which kept bressia from delivery ; the like did the poor centurion when mellito and all the venetian gentlemen were surrounded in the valley of sabia ; these , i say , and thousand such instances would confute the rashness of that position , that men are not to be trusted because they are poor , ( for they that are poor in estate may be rich in virtue , and so accomplished to actions of integrity and heroicisms : ) but the intent of the law is to supersede and undermine that common pest of poverty , sordidness and illiberality of spirit , which makes men open handed to receive any thing that is put into it , that may answer a want and supply a need ; thus is perjury imputed to gifts by jurors received , so h. . c. . h. . c. . and that the more sufficient men be of lands and tenements , the more unlikely are they to be driven or moved to perjury by brocage , power , or corruption , they are the words of the statute of h. . c. . which is the very same with what is the reason in the text , nè per inediam & paupertatem iuratorum hujusmodi de facili valeant corrumpi aut subornari , for since necessity has no law , and hunger breaks through stone walls , there is no better a prevention to the sordid effects of need , then thus to provide as the law hath . livius drusus was a brave man , so generous and liberal in minde , that , he left nothing unobliged by his bounty , but heaven and the sea ; yet the historian sayes of him , when he grew short of money , he did many things unbeseeming him : and agur when he beggs of god neither poverty nor riches , but food convenient for him , teaches us the danger as well of the left-hand , extreme poverty , as of the right-hand , riches ; the one making a man forget god , the other forget a mans self . et si per tales exceptiones , iuratorum nomina in pannello cancellentur , quod non remantat numeras sufficiens , &c. there is no need of much enlargement herein , for this is but enumerative of what has been heretofore asserted ; juries of twelve sufficient men of the county must be summoned , and before they be arrayed may be challenged . if twelve of the array be not unchallenged by whom the cause may be tried , then must more and more jury men , omni exceptione majores , be summoned by the sheriff , according to a writ directed to him to that end : for there must be no defect in justice ; while the county has solvent men , and those not legally challengeable , there must be returns of them , quod & soepius fieri potest , faith the text ; and that to prevent injustice in the nation , which then is chargeable on it , when causes hang undetermined : ob defectum iuratorum , which to prevent , the law grants tales , not onely of other persons in the shire * but of the next adjoyning shire-men , if none in the shire there be fit . so in the case of attaint , wherein perjury has been committed , as neighbours may be partial , the statute of h. . c. appoints . et has est forma , qualiter iuratores & veritatis hujusmedi inquisitores eligi debent in curia regis , similiter & jurari . t was hic est ordo before , and hac est forma now , both to one purpose , to notifie the exactness of the law to keep it selfe in a method , and to walk by rule : forms are the prescripts of god in nature , and of nature to polities for avoidance of consuon . the iewes , the first people and polity , had their forms in all things ; in their sacrifices , worship , dedication , solemnization of festivalls , oaths , marriadges tuneralls , making peace and war , in their enfranchisements , jubilees , in every thing . and from them the nations learned forms ; tully speaks that with an orators confidence and a good mans truth : iura & formae de omnibus rebus consittutae , and as things had their forms to distinguish them by ; in which sense we read of forma dicendi , bonestatis , scribendi , temporum & reipublica forma , scelerum formae , provinciae forma , & forma edificii , and such like in authors ; so also had persons their forms . so among the romans , there were forms for every order of men , which brissonius tells us of , and no authors of theirs omit mention more or less of . and these forms , though we look upon them as accidentall things , which may adesse & abesse sine interitu subjects ; yet are not to be innovated , or forcibly entred upon without great consideration : because they couch great mysteries in them , which are necessary to be cherished for the advantage they give to the more essentiall parts of truth and policy : which is the reason that both the civil , canon and common lawes do insist much on forms . has est forma sayes the text , and so ends this chapter . chap. xxvi . iuratis demum in forma praedicta , & . this chapter begins with an exegetique recapitulation of what had passed concerning juries in the preceding chapter . for , there the number of a jury being twelve , and those twelve not trivial , but probi & legales homines ; that is , such as are of good conversation , and morally civill , and have besides their goods , moneys , leases , and other less-fixed subsistences termed mobilia : lands , tenements , and hereditaments which are called possessiones à post sedendo ; ( because they give being to those that come after the present enjoyers , being descendible to either corporal or testamentary heires , and sufficient to conserve them in their condition without dependence or necessity of fortune , which betrayes men to by-courses , to the prejudice of honesty and justice ) i say , the chancellour having premised this , proceeds now to the further narrative of what such qualified persons are by the law expected to do , in discharge of that great confidence it has reposed in them ; and that he does by enumeration of severall particulars , wherein their exactness and sincerity is required : concerning which , before i write further , i think fit to touch shortly upon that motive to the lawes choice of men of fortune for this imployment , as is couched in those words , vnde statum suum ipsi continere poterint . ] by which i collect the judgment of experience resident in the law , and in the compilers of it , to be , that all perjury and unjust dealing proceeds from a departure , and discard of moderation and contentment with the condition god has designed men to bear , and requires them to be patient under . and indeed , there is no account of sin more rational then that which refers it to incontinence : men derogate from gods wisdom and power , and aggrandize themselves beyond what god has fitted them for , and will carry them thorough ; and this makes them steer a course to extremes , which is , seipsos non continere : for , as it is in valour , there is no excuse admitted by that person that is willing to fight ; but when all the discouragements imaginable are presented magnaminity replies as pompey did necesse est ut cam , non ut vivam : so is it in modesty of minde , nothing will tempt it to go beyond its boundary , or trespass on the peace of its intern calmeness : it s true , valour in the best men will tempt to venture hard for the master-prizes in this worlds lottery ; and hard it is upon meere worldly grounds to withstand the irritations and impulses of their cogent interest : but , for all this , where god gives continence of minde , the virtue of that endowment will reply to those fusurrations , phanorinus did to those that reproached him for flattering adrian , who loved to be accounted a learneder person and prince then he was ; page why should i not admire and humour him who commands thirty legions : so sayes continence , when ambition solicites to comply with base and by-ends to gratifie sensuality , cur non cedam buic , &c. why should i not observe the command of god and nature , which learns me to live of a little , and to be sober in keeping my self in mine own orbe : for , while men do , as one told cleon , intra suam pelliculam se continere ; and are desirous of nothing more then they enjoy honestly , and can use temperately , they avoid delight in riches of violence , and honours of fraud and usurpation ; which romulus deserved , and had accordingly renown for : for , though he had the choice of all the . sabin virgins , yet kept he himself to his own ( though old ) wife herfilia : and though he might take the freedom of high feeding , and martiall compotations , by the visceration of which men grow valiant , and heady , beyond measure and mercy ; yet , the historian sayes , he kept himself free from taint : ego quantum volai bibo , non quantum potui , was the account he gives , and surely t was a solid one , and tuitive of virtue , beyond all curbs beneath effectual grace . when i read of that athenian young man , who to preserve himself against the lust of demetrius , cast himself into a cauldron of boyling water and dyed : and of that roman generall that refused presents , and contented himself with a few roots for his meale , and them sorily cooked by his own hand , and cryed out , in defiance of the importunity of his gratefull presenters ; i have no need of your gold , while i can command my senses , and they not me , i shall never want that which satisfies the luxury , not necessity of them : i lay , when i read this , and consider the defects and excursions of christians , i blush to finde christ so often in the mouth , where he is so much an alien from the heart and life : men ought to live as they of old did , though they speak daintily , as the neoteriques do . for , no shipwrack is so terrible at sea , as this wrack to the soul and sense of man is when they are intemperate ; intra statum suum se continere , ] is not onely to avoid marsya's insolence , in challenging apollo to pipe with him , whom when apollo overcame ( as soon he did ; for the presumer was no musician , but a bravado ) he hung him on pine-tree : i say , to be moderate , and affect nothing beyond our station , is not onely to avoid one , but all evill , which the contrary prompts to , confirms in , and ruines for : so long as the registers of lucifer's pride , and corabs conspiracy , and absoloms rebellion , and reubens incest , and iehu's murther , and achans covertuousness , yea , and of iudas his treachery are in being , and mention of holy writ ; the danger of not keeping in one station , and not compling with gods pleasure , will be lively testimonies against that humour : intra statum suum se no continere . t is good to remember the fable of the crab that left the sea , and would feed in the land , where the woolfe met with it and devoured it : the crab bewailing his condition when , t was too late , was told , being thou wast a creature of the sea you should have kept there and not affected the land , but your trial of conclusions has concluded your security . and when god lets the reins lie loose , and men have latitudes penall as well as peccant ; then , there is no meane for them to rest in , but they go from one wickedness to another , till they be the shame of men and the curse of god : picenino the italian generall is a notable example of this ; for , he having defeated antonini at novara , resolved revenge on his enemy by any means he could invent , and effect , he slew great numbers of the inhabitants of novara in heat of blood , and those that escaped he executed by the common-hangman , and being at last glutted with blood , and not knowing almost which way to be further vile , he sets to sale young children , matrons , and reverend priests ; and all this he did by not heeding se intrastatum suum continere , which the law soreseeing , prescribes such valuable proportions of estate in those that are to serve on juries , that they by it may se intra statum suum continere : for , if once passion predominate , and men sinfully look abroad , then they court unlawfully , and attempt desperately the accomplishment of it . in anno . one of the bishops of st. andrews did enshrine the bones of st. palladius , who first converted scotland : this shrine being silver was the eye sore of a gentleman neer fordon , in the county of meruis , who when times were disasterous seized upon the shrine because it was silver , and made away with the relique , but his family soon after decayed , which was probably a curse of god on his sacriledg and prophaneness . and so i have done with this passage , intra statum suum se continere , ] because though it be necessary to be inculcated , yet it must not court me to extravagate . now then i return to what is to be done previous to , and conductive of their service to a just and worthy issue . totum recordum & processus placiti quod pendet inter partes . ] that which i think the civill law calls libellus accusationis , the common law calls recordum ; a word from recordor ; the record being the summary and substance of the suit or cause , and therefore the text sayes it is appointed to be read as the process of the cause is here also : critiques make this word a recordor to be the most emphatick word that comes from cor , valla confounds memini with recordor , because records are a kind of immortal memory ; the lawyers also call the entry of things in the books , or rather rolls of the court a record , and this was called a roll , because entred on a parchment that was rolled up : so statute r. . c. . but h. . c. . t is called a record ; and a process , or record , e. . c. . h. . c. . h. . c. . ac dilucide exponetur eis exitus placiti . ] what the exitus placiti is see the notes on the twentieth chapter . that which is phrased here dilucide exponetur , is in sense , the jury shall heare distinctly in their mother-tongue the true sttate of the contention , abstracted from all those disguises and pretences , that craft and vehemence impose on it ; to prevent which the law appoints , that it shall appeare plain and unmysterious : dilucide exponere is as much as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , intra lucere , as i may so say , to search into , and perambulate the bowells of a cause ; yea , t is as much as to tell the jury what points the concernment of the cause rests upon . this then , as to do it shortly and pithyly , requires ability , so declares honesty in the doing of it ; for , it is almost sine qua non , to right judgment : therefore the text adds , de cujus veritate iurati illi curiam certificabunt , ] that is , they shall give their verdict according to their evidences and the righteous instructions of the court ; both which if they follow they may be said curiam certificare de veritate . ] for , the discreet verdict of the jury is a certificate to the judges , how they finde the cause to be , and accordingly are led to dispose their verdict upon it . quibus peractis , utraque partium per se & consiliarios suos in praesentia curiae referet & manifestabit omnes & singulas materias & evidentias , quibus eos docere se posse credit veritatem exitus taliter placitati . this remembers the method of pleading causes ; per se & consiliarios . ] of old probably men that knew how , and would venture the cause upon their own memory and judgment to manage it , were permitted to plead their cause ; but laterly it has not been in any degree so : but as the courts to encourage the study of the law , expected causes before them should be pleaded and prosecuted by juridique men ; so have all parties in suit chose rather to take the cooperation of a man of law , whose profession it is to know the patriall lawes , then to hazard his cause to save a fee : and for as much as counsell and strength is for the war ( not onely the field , but the court-warr ) and causes are best defended by the truth of their cause , and the prudence of the parties carriage in it : the text sayes , per se & consiliarios suos in prasentia curiae referet & manifestabit ; that is , as the plea is framed by counsell , so is the defence or stabilition of it to be made by counsell , and that vocally , in praesentia curiae ; and this the text terms referre & manifestare ; that is , referendo manifestare : and this insinuates great accomplishments in counsellours ; prudence tempestive referendo ; this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is the wisdom of a man exactly to observe , if he would succeed in what he attempts . counsell that speaks over-much , and beyond the proportion of the courts liking , or that interposes when the court is declaring its judgment , is not favoured by the court : therefore a man of counsell , as he expects not to recall what is past and gone , nor seeks the rose out of its season , so will he watch , and catch at every opportunity he worthily may to accomplish his purpose . not that wise men are ever fortunate , or that their counsell is ever valued ; for socrates , though the wisest of men , was obscure and unknown to most of the age he lived in , as was epictetus his saying , which seneca suffragated to in his th epistle : but , though a wise man does not ever succeed , yet in doing so he does as a wise man ought , bene consulere ; and that no man can , who does not regard the times and seasons , the humours and passions of prevalent and potent parties , and carry himself wisely in all affairs : which cato doing , is by paterculus charactred to be liker a god then a man , who did not virtuous things for applause , or advantage sake , but because he could not bring his divine soul into servility to his brutish sense , nor account anything worthy his reason that did not excite him to iustice. secondly , as the counsellour must referre , which implies prudence , so he must manifestare eisdem iuratis omnes & singulas materias & evidentias ; ] and this implies memory , art , elocution : for manifestare is a word that argues a rescue of any thing from its shade and obfuscation , and a reddition of it apert and visible . this potency of oratory , and strenuity of memory and invention , is that engine which from the cannons and sacars of language discharges such batteries on the eares of auditours as makes them intenable against them : which , when counsellours abound in , and by it express the learning of their minds , they prevaile in all causes , and over all persons they are retained to plead in , and before : which being the defect of many men of the long robe , makes them so rude in speech , and ingrate to the eares of their hearers , that nothing seems more defective in them then good words , and a gracefull delivery of them ; which they that want cannot manifestare within the text. for , though they may apprehend materias & evidentias , yet if by proper words they cannot manifestare materias & evidentias causae to the jury , they are short of what they ought ; yet further that of the text referet & manifestabit iuratis , &c. ] points us out to the double duty of a good counsellour after hearing of the record read ; first referet , that is , he shall be a monitor to the jury to observe what they have heard : thus ( referendarius papae is put for the popes remembrancer , or master of his requests , to put him in minde what supplicants presented their requests to him ) and manifestabit ] to satisfie them that what they have heard in the record , was necessary so to be insisted on for the assertion of right , the cause of their suit. omnes materias & evidentias . ] that is , all points of law in the case , and all testimonies in confirmation of the fact , which the law so and so adjudges to be proved ; or else materias per evidentias . that is , a good counsellour will so manifest the cause full of matter and moment , that he will omit no evidence that may clear it to be what he explicates it ; and this to do is to be as notable a patron to a cause as barbaro the bressian governour was to that city of his charge , which though it were miserably straitned , and the people in it disanimated , yet he kept against the potent assaults of it , by his noble courage and obliging demeanour ; being such an argos in every part of his government , that he kept up his own honour and his masters interest against the force and rage of those who were enemies to both : thus , if our counsellour do , he will not carry a leaden sword in a golden sheath ; that is , no law under his barr-gown , evidence no oratory in his pleading and defence : but be such an one as will referre & manifestare omnes & singulas materias & evidentias . ] et tunc adducere potest utraque pars eoram iisdem iustitiariis & iuratis omnes & singulos testes quos pro parte sua ipse producere velit . as before there was an ordo in the summoning of the jury and arraying them , so here is there an order expressed in their work , the end for which they were so called and empannelled , tunc adducere potest : when the record is read , and the counsell have evidenced for their clyent , then the witnesses are produced to confirm what points are necessary to be sworn to ; that as there is vtraque pars , and iidem iustitiarii , and iurati , all pluralls : so there is to answer these in the plurality of their constitution , omnes & singuli testes ; all , if they can speak to all parts of the fact , which is rare , every one to what part he can depose . for the law expects no witness should evidence any thing but what is just , and known to him : and to the deposition of which it admits him not before he be charged by the gospells with all fidelity , to utter his knowledge : and , if the justices do lay the load of gods power , omniscience and mercy , the great discoveries of the gospells , they do what the text words by qui super sancta dei evangelia per iustitiarios onerati . ] qui super sancta dei evangelia per iustitiarios onerati , &c. why the gospells are , that upon which men lay their hands when they sweare , i have shewen in the precedent chapter : now , the expression of the common law by the mouth of our chancellour , when juries are said to be onerati by it , is to be enquired into ; and an oath upon the gospell is called a charge , or burden , because it presses the soul to performance of it upon penalty of the gospell violated , being evidence against the violators , as a heavy weight presses the body down , and fills the porter with care and fear till he be discharged of it : this the hebrews expressed , not by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , nor by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , nor yet by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , though all these words are used to signifie presure : but they expressed it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a word that is lifted up in its import above other words of the same seeming sense : for this word is used metaphorically , for any office , charge , or ministery that is committed to any one ; because these intrusts require care and intentness , which makes nature in those that bear them heavy , and droop : thus the prophets denunciation against people is called their burthen ; and dumah's charge and penal menaceis termed the burden of dumah ; and thus all care is called a burthen : cast thy burthen upon the lord ; which s. peter renders , cast your care upon him for he careth for you : so do the latins use onus and onerare for any thing grievous : malis onerare aliquom , and catenis onerare aliquem , injuriis , maledictis onerare ; and tully argumentis quamplurimis onerare iudicem : and livy , when he speaks of one that did vehemently commend his friend , writes , he did laudibus illum onerare ; and tacitus , onerabat paventium curas ordo mutinensis ; these , and thousands such like expressions , shew , that to charge a man upon the gospels , as here , is to lay load upon his soul cogent to his performance : and this the law purposely does to keep men servile to justice , that they should not dare to doe contrary to it , least they burden themselves with god's curse and their conscience's rebuke . et si necessitas exegerit dividantur testes hujusmodi , donec ipsi deposuerint quicquid velint . this the common law and the practise upon it does to prevent combination and injurious confederacy ; for since it may fall out , that witnesses , like sons of belial , may agree to depose one and the same falshood , and by dexterity , helped out by satan , contrive testimony to such an harmony , and sameness of note , that they may , that give it , sing one song , as we say ; the law has given not onely the direction , but the mandat to undermine this artifice , by honest policy , dividantur testes , sayes the text , but that onely , si necessitas exegerit , ] which is the great regent of the world ; which made the comaedian cry out , necessitas plus posse quam pietas : for all men do allow necessity to be of the quorum quarum quorum in all cases and things , which though it may be pretended by many , who naturally are mutable and politickly are proteus'd , as the people of chios are spotted for versatility by that proverb , not one of chios by birth , but one of chios in nature ; yet is no further to be the temper of wise-men , then it is inevitable , sinless , and cogent : in which sense tully uttered that aphorism , to give way to time , that is , necessity , that carryes all down before it , is the part and property of a wise-man , which truth , apt to be abused the same oratour qualifies with , * quicquid non licet certe non oportet ; and saint bernard yet restrains more , in his applications to pope eugenius , certainly ( sayes he ) in christian philosophy , and by rule of the wisdom that is from above , nothing is comely but what is lawfull , nothing expedient but that which is comely and lawfull ; and saint augustine confirms it , a thing may be lawfull which may not be expedient , but expedient that cannot be which is not lawfull . though then necessity be to be harkned to , yet it must onely be such an one in judicial affairs , as that is in martial ones , cum res ad triarios rediit , when things are so urgent that there is no avoiding it , but either witnesses must be heard and examined apart , or else they will out-swear , or rather forswear truth and misguide the court ; when the justices see they are resolved to carry their design by resolute and agreed deposition , tunc dividantur testes ; and yet that onely , donec deposuerint ipsi quicquid velint ] the law searches out truth onely , and to doe that , may examine suspected evidence apart , but that done , and the testimony made , the witnesses are in statu quo ; for the law ordinarily takes evidence as it 's given in open court , all that will being present , and the court asking the witnesses in the hearing and view one of another , and if it do separate witnesses , and take their testimony severally , 't is upon jealousie of legerdemaine dealing : for as that of seneca is true , aculeos subdunt exempla nobilia , so is it on the contrary , one scabbed sheep infects a whole flock , conciliant inter se impii inimicissimas amicitias , saith s. bernard , and if there be one villain in a pack , he can design what others act , as darius said of the ionian defection , histiaeus , was the shoemaker though aristagoras wore the shoe. therefore our law to prevent mischief provides to catch these false witnesses in a net , dividantur testes , ] that so they , being ignorant what each other depose , may by their contradictory depositions invalidate the credit of that they depose , ita quod dictum unius non docebit aut concitabit eorum alium ad consimiliter testificandum , saith our text. quibus consummatis , postquam iuratores illi deinde ad eorum libitum , &c. this is onely matter of form , and declares the lawes order in proceedings ; every article of proceeding is by steps and degrees proportionable to the nature of the cause , and the judgement the law is expected to give in it . as therefore the jurors do hear and observe the record , the evidence , and the direction of the court , so in their retreat to debate and consider of their verdict , as they are not compelled by the law to come before they have considered and agreed their verdict , so are they not favoured in their unreasonable cunctation ; a verdict must be given before the jury can be free , and the court whose legal prisoners they are , ( for they are in custodia ministrorum curiae , ) not allowing them fire , candle , or drink , till they have given up their private verdict , and after that , when they have all those conveniences , yet they are not discharged , till they have given their verdict in court. i say , all this considered , the law does wisely to allow convenient time to debate , but none to unnecessary delay ; and as it keep● them from food and fire , that necessity may drive them to dispatch and agree , so does it keep them under the eye of the court from conference with any ( the ministers of the court , being sworn men , servants to the court , and so in this sense the court ) least if they were at liberty they might be solicited and bribed by the parties in contest , to the overthrow of right . and this discovers the exactness of the law , that it leaves no stone unturned to promote discovery of truth , which when it has found , then it appoints , that those that departed the court to consider in order to a verdict , shovld return orderly with it , reveniet in curiam saith the text ; and then modo & forma they give their verdict , and according to that verdict , iustitiarii reddent & formabunt judicium suum , ] that is , as i humbly conceive , the sentence arising from the matter of fact verdicted , the justices before whom the verdict is given , supposing the jury just and untampered with ( as the law concludes them to be when they follow their evidence , and the direction of the court according to it ) do give judgement , that is , suffer judgement to be entred according to it . and this argues juries notable promoters of justice in tryals of fact , because the law , which is ars aequi & boni , has appointed that its judgement shall be entred according to the verdicts of them ; which if the gentlemen and men of fortune in this nation doe rightly consider , they would be more punctual to serve on juries then they are . for besides the notable experience it begets in men , and the parts in them it displayes ; it not onely advances distribution of justice in the nation , but it facilitates and makes more currant the judgement of the king's justices in his courts , since all the burden lies not on them , but the matter of fact passes the verdict of juries , compacted of knights , gentlemen , and freeholders , who are considerable men in counties . tamen si pars altera contra quam veredictum hujusmodi prolatum est , conqueratur se per illud injustè esse gravatum , persequi tunc potest pars illa versus iuratores illos , & versus partem quae obtinuit , breve de attincta . &c. still the law by our text affords remedy against injustice . for though verdicts are not as the law of the medes and persians irreversible , yet as judgments pronounced in the king's courts they must stand , till they be reversed by attaint or a writ of errour , h. . c. . r. . c. . e. . c. . eliz. c. . eliz. c. . e. . c. . e. . c. . h. . c. . eliz. c. . iacob . . so may the jury be attainted for their partiality and perjury e. . c. . e. . c. . e. . c. , & . e. . c. . & c. . h. . c. . , and so in sundry other statutes . breve de attincta . ] this is an ancient writ at the common law called a writ of attaint , because it referrs to persons vanquished in judgement , weighed in the ballance of justice and found too light ; the word seems to come from ad and tango , attingo , as much as to overtake , and to guiltily reach , though it be extremis digitis : the word in oratours signifies less then in lawyers ; for the lawyers make attaint and attainder , to be the highest dishonour , felony , treason , perjury ; the ancient books call it , breve de convictione , that is , a writ to summon an honest jury to attaint a perjurious one , which false jury , after conviction and attaint , contracts a very sore punishment , the particulars whereof , collected out of the antiquities of the common law , sir edward cook has furnished me with , the first whereof is , amittat liberam legem in perpetuum , that is , let a jury-man , that has contrary to the fear of god , the reverence of the law , the charity to his neighbour , and the peace of his own soul , been sordid , and for gain , fear , or love given false verdict in a cause ; let such an one ( i say ) be out of the lawes protection , as he extruded the law his affection ; let him lose the law of a freeman , and become lawless as a villain : hence , i suppose , the book e . fol. . calls this , the villanous iudgement , not to reproach the judgment of the law , but as to the persons meriting it , who thereby of free-men become villaines . secondly , as his person should be out of the law 's favour and protection , so forisfaciant omnia bona & catalla sua , let his estate , that consists of money , plate , debts , leases , annuities , be forfeit to the king , as a compensation to the king's honour for the blot that it has suffered by his perjuriousness . thirdly , terrae & tenementa in manus domini regis capiantur , ] while he lives , let his real estate be anothers , and not his to enjoy or command . fourthly , quod uxores & liberi extra domos ejicerentur , ] the innocent wife and children that are at home in the house , harmlessly associating each other where their security is , are to be cast forth to the contempt and injury of cold and want ; which , how dolorous that condition is , let haegar's tears speak , who , extruded by her mistrisse , sat like a forlorn in the open wilderness ; to which perhaps as well as to the punishment of cain , the psalmist might allude in that imprecation he prophetically makes on wicked men , to whom his person for his piety was an eye-sore , let his children be vagabonds and his seed begg their bread , that is , let them be men that have no home , but wander here and there as never out of their way . fifthly , domus suae prostrentur , ] let not onely they and theirs not have being in their own house , but let their own house not be in being , but become a monument of the confusion that is penal on perjurious falshood . sixthly , arbores suae extirpentur , ] let not onely the building and ornament , trees the beauty , profit and honour of it cease ; and his rich laden meadows , which filled his dairy , and stalled his oxen , and supported his plough , let them all be ploughed and broken up ; and to the compleatment of his punishment , when his wife , children , house , lands , have been sorely harressed , let his body be imprisoned without bayl or manisprise , and this touches the offender to the quick , when he is restrained , and can stirr no further then the bar and lock of a thick door , or the length of a strong chain , or the narrow bounds of a loathsome strait room will permit him , then 't is misery with a witness . imprisonment is one of the punishments that all nations inflict on offenders , and though caelius rodiginus tells us of other ends of prisons then punishments of gross crimes , yet certainly the chief ends of prisons was to keep them bound , who would abuse liberty to injure and ill-principle others . thus we read of the cretan labyrinth , and the messenians thesaurus , the carians termerio , whence the use of termeria mala , the cypriots ceramon , the boeotians 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the persians lethes , the attamans barathrum and melita , the spartans decas and carda , the latomius built by dionysius the tyrant of syracuse , the roman sceleratus campus , their gemonii graechus , their spoliarium , tullianum ancon . these , and others such like afflictions on facinorous men , are equalled by this severity of our law in the imprisonment of perjurious jurors bodies , which judgement of the common law , the statute of h. . c. . does mitigate the severity of , and therefore to that i referre the reader . nor is the common law onely so severe in this case of perjury , but even all national lawes equal them in severity . tholossanus has to my hand collected the severity of many nations against perjury , and the digest seconds all severity against it ; for when (a) paulus sayes , sufficit perjurii poena , the gloss adds , perjurii poena divina exitium , humana dedecus , which it has out of tully , that helluo of law , language and wisdom , lib. . de legibus . and therefore is it that an oath being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , no trivial customary thing , as philo's words are , but a citation of god to bear witnesse of it , if it be false it provokes god , because it makes truth it self witnesse of a lye , is so punished by god and men , as in the subsequent words appear , which are . virtute cujus si compertum fuerit per sacramentum viginti quatuor hominum , in forma praenotata returnatorum , electorum , & juratorum , qui multo majora habebunt patrimonia quam iuratores primi , quod idem primi iuratores falsum fecerunt sacramentum , &c. virtute cujus . ] that is , brevis de attincta ; for this is the warrant for the sheriffs summons : for , compertum it cannot be , if not quaesitum ; and quaesitum it cannot be , sine mandato regis , and that can be no otherwise then brevi de attincta . so , that if attaints be necessary to punish perjury in juries , that punishment must be discovered due to the fact , by the fact legally proved , and that the text sayes must be by the oath of soure and twenty men , this is the direction of the common law : for , neither in the statute h. . c. . or h. . c. . which are expired : or of h. . c. . do i finde the direction for it other then as by the common law ; in affirmance of which , so much of the statute of h. . c. . as concerns the number and value of the jury on attaints was made ; for , in as much as an attaint , when proved , contracts great infamy and punishment , the law before it adjudges and inflicts them , expects to be notably satisfied ; and this appears from the enhansement of the number of the jurors to try this , whereas twelve serve in other cases , foure and twenty must be in this : and whereas men of the value of s. freehold , or l. in some cases , here the law requires that the jurors shall have every one pounds by the year freehold , &c. h. . c. . h. . c. . and thus stood it when our text was written , though the statute h. . c. . reduce the quality to . marks , and this confirms that of the text , multo majora habebunt patrimonia quam iuratores primi . ] these then returned , elected , and sworn in due form of law , are to enquire whether or no that be true which is suggested ; quod idem primi iuratores falsum fecerunt sacramentum . ] in what sense oaths are termed sacramenta , i have written in the notes on the . chapter . that which the law aimes at , is to prevent false oathes by punishment of those most severely that are guilty of them , that (a) others may heare and fear , and do no more presumptuously . for , the law having indulged triall of the fact to juries , and the court charging them to make true enquiry of all things in evidence before them , and not to give verdict for favour or affection , so help them god , they for favour or affection going maliciously against their evidence , deserve not onely infamy , but all the consequent punishments of their seduction : and , although bracton sayes favour may be shewed quo ad infamiam , yet is there none quo ad poenam redemptionis : for , as god is a hater of false swearers , zach . . and a swift witness against them , mal. . . so have ever the lawes of this land been eager against them : by the lawes of cnute it was banishment , and to forfeit his land : by the lawes of (a) ethelstan to want christian burial : and so by those of st. edward (b) to be as it were un-christian'd . and because they that were perjurious were not oaths-worth , therefore were they never to be believed afterwards : which is in our texts words , nec aliter recipientur in testimonium veritatis . ] for , the reason is by bracton added , quia qui semel convictus de perjurio praesumitur quod iterum velit perjurare , according to which the books are cited by our judicious selden , in his notes on this very chapter . et pars quae succubuit in priori placito restituctur ad omnia quae ipse perdidit eccasione ejus . this conveniently follows , for if a detriment be befallen a man upon false oath , the evacuation and disproofe of that oath , and the attaint of the person foresworn by it must inferr restitution of that which the improbated oath occasioned : for , as that of glanvil in point of the punishment , is true , quae poena adeo recte instituta esset ut quoslibet ab illicita praestatione sacramenti in tali casu coerceat similitudo supplicii ; so in point of restitution , that implies the nature of the recompence , to have what they lost , and their reasonable costs and damadges : so h. . c. . confirming h. c. . and the same was the common law before in point of restitution , of what was lost by the false verdict ; for so sayes our text , restituitur ad omnia quae ipse perdidit occasione ejus . ] quis tunc igitur , etiamsi immemor salutis animae sua fuerit , non formidine tanta poena & verecundiâ tantae infamiae veritatem non diceret sic juratus , &c. this clause is inferentiall of what the chancellour collects from the premised severity of the law towards violated faith , and abused justice ; and its interrogative vehemence having the oratory of a positive negation , mindes us , that no man that is wise and worthy will pawn his soul to fill his purse , or hazzard his good name to accept a petty bribe . for since god would have every man a caeneus , to be armed with innocence from top to toe , and in no part or point void of its muniment , but wholly invulnerable by willfull and notorious sin ; no man that will have the hornam messem of heaven , and obtain his vessell as top full of glory as it can contain , and a good conscience preserved , will have from the righteous judge ; no man i say , that strives for this , must or dare make his soul a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sordid to sin and vice , which god abhors , and for which he hath prepared terrours in life , and torments after death . for since the holy ghost has told us , that without shall be dogs , and enchanters , and whoremongers , and murtherers , and idolaters , and whosoever loveth and maketh a lie , and into the new ierusalem no unclean thing must enter : but unto him that ordereth his conversation aright the salvation of god shall be shewed , the good and grave knight here confirms his own and his readers mindes in the belief of this , that no man can be false to the law and the king in violating his oath , and injurious to his neighbour , in parting with his right , which he ought to justifie ; but he that neither feares god , nor reverenceth man , he that is immemor salutis , and cares not whether he sink or swim , as we say , and is desperate , not valuing reputation , or personall dishonour , but rest sinè formidine tantae poena , and sinè verecundia tantae infamiae . in that then the text sayes quis enim tametsi immemor salutis suae fuerit ; ] it points out to us the piety of the law that sweares us on the gospell , that we might remember the requiries of the gospell , to love truth in the inward man , and to do as we would be done by , as the god of the gospell exacts from us , and to feare to do the contrary upon the curses that the violated gospell threatens upon its violators ; so does it minde us that some there are that as they put the evill day far from them , so do they in their actions demeane themselves , as unmindefull of all those glorious remains that the image of god in them is capable of , and has deposited for them : which prophaneness ( for it is a vilipendency of a birth-right no less noble then esau's was , and sold no less trifflingly then was his ) if it should prevaile in a seduced sinner , to promote or give way to , and he throw away his eternity as a thing of naught , yet is there in the legall censure of this perjury in jury-men attainted , somewhat that the chancellour thinks being more effective of the sense of man , will more work with him then his heaven will ; for that few understanding aright do not sutably value , but this every ion of adam can judge of , and will endeavour to avoid disgrace to his name , and punishment in his body . for surely , of all things cogent in man , fear is the first and firmest ; primus in orbe deos fecit timor : and the prophet , who well knew what the power of mortall passion was , cries out to god to affect his enemies with this one of them , as that which would reduce all the rest to termes ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as aquila reads it : and our translators after it , put them in fear o lord , that the nations may know they are but men . feare , o t is that which brings men into servility and compliance , which makes lapide read these words by pone legislatorem super eos ; and cajetan by pone dominum ; and others by pone jugum vel dominium ; because all these , being terrible , cause feare and dread in the objects of their terrour and fury , and that our chancellours expressions may have their allowance of weight , this formido is no transient feare , which does not cadere in v●rum constantem ; but it is metus permaneus : such as does not onely make the heart ake , and the joynts to tremble , but such as therefore is such from the prospect it has into all the arcana and dimensions of that which it feares : hence scaliger derives formida à formis id est spectris ; not onely for that men by feare take appearances for more then they truely are , accordingly to that of the orator , horrible feares arise out of the ignorance of things : but because feares soften and cajoule men into obsequiousness . even god himselfe prevails mostly on men by feare ; when thy iudgments are in the world , saith the prophet , the inhabitants of the world will learn righteousness . what , no otherwayes , nor before ? will not the love of christ constrain ? no , not the world ; the little flock onely are so tender and mouldable : it is the fear of gods soveraignty that brings the rebell world to crouch . if men do lityersam cantionem canere , as iulius pollux his words are , t is against their wills : the sense then is , perjury being so great an offence in the jurour , and the law not leaving men to that liberty in point of oaths , that corcyra left men in other things , according to that sarcastique adage (a) lybera corcyra caca ubi licet ; but requiring not onely that no jury man shall be an ambidexter , but if he be such punishing him according to the statute ed. . c. . and the other prementioned statutes ; but also that he be inculpable , and know no party in judgment , as he will avoid that sore judgment of attaint : the chancellour does well to urge , that if a man lay aside all religion and morall virtue , yet in the bare formido poenae there is enough it self to deter him from provocation of the law , and procuration of his own punishment according to it ; especially when there is verecundia tantae infamiae ] added to it . for this offence does not onely afflict the person , fortune and relations , but bespatters , yea deturpates and dishonours the good name of any man ; and to be infamous men naturally hate , to be odious and contemptible is the plague-sore of life , which every man shuns : this god himself humbles man by , when he tells him , that he being little lower then the angells , and crowned with majesty and honour , abode net , but became as the beast that perished : for this of suffering diminution is the great crest-fall to all manly mindes , when men are ranked with the dogs of the flock , they are no company for any but persons of disregard ; and to such do they onely incline who are infamous . whereas brave and virtuous mindes are like generous trees , that will not onely bring forth fruit , and that quickly , but will thrive in no soyle that is not generous like themselves : this then the chancellour considering , arraigns the perjurious person , as not onely stupid , in not fearing the punishment of his crimes , but phrantick , in contemning all modesty and care of his report and esteem : metellus in (a) agellius tells the world , that the brave minde holds himself obliged to do every thing like it self . and if ever any man would have a fair autumne , he must have a tender respect to his spring and solstice ; reputation once lost is not regain'd but by something stupendious , next doore to hyperhumane , which considered , the chancellour brings in the dearness of a good name , and the avoidance of the contrary , as pregnant motives to avoid perjury ; if the thoughts of heaven and bodily freedom would not prevaile , yet the care of avoiding disgrace should make a man that is sworn to do right , feare to forfeit his oath . et si unus forsan tantus sui honoris prodigus esse non pepercerit , aliqui tamen iuratorum tantorum famam suam non negligent , &c. this the text adds to shew , that as one scabbed sheep may be in the flock of a jury , so in that there may be others sound and good , that infected and seduced one can do no injury to justice , if the rest or any part of them hold their own : for though that may , in a sense , be true in juries , which was reproachfully spoken of the discordant carians , multitudo imperatorum cariam perdidit ; yet so long as there is any limb of that body hayle , all the others subversions signifie nothing : for the enquiry of the court is , are ye all agreed of your verdict ? if any one sayes no , ( holding his own against the others perjurious seduction ) the combination comes to naught . so that the law considering that men here are set inter sacra & saxa , inter malleum & incudem , in acie novaculae , that they have many temptations to conflict with , bids them in this storm 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 put forth their anchor , integrity : and rather expose themselves to the utmost hazzard , though it be to be liberide nudiores then to devide the spoyle with the wicked : for , though most men may be versatiles artemones , and turn and winde every way as the gust of their advantage drives them ; yet a good and well principled man will walk sure , and know his footing before he will trust his body and fortune upon it , crying out with him in the adage , pedibus ingredior , natare enim non didici : and this to do , and to be fixed to justice , is famam suam non negligere , which the text mentions , and which sir throgmorton's jury made good , and have immortality of same for . neque bona & possessiones taliter distrahipatientur . ] this relates to the reward of integrity , security to a mans person and fortune ; for , as the law easily beares down whatever is a perjurious jurors , and sinks all of him and his in a bottomless contempt , and an irrecoverable loss : which the text terms bona & possessiones distrahi . yet , upright and true men non patientur talia , because they do not forfet their rights by wrong doing : and therefore of all the bladders and supports to estates , none like those of justice in an ancestor , that gives a durable basis to all that 's built upon it , and to endeavour to sink it , is (a) to sink a bottle full of winde : o t is a rare custody in the worst time that innocency has , when men walk in the circle of the law , they do (b) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 duabus nixus in portis sedere ancoris , and they that seize their fortunes contrary to equity and law , are publick enemies ; for they that suffer for righteousness have the spirit of glory resting on them : that onely being a comfortless suffering which is the fruit of busy-hodiing , and evill-doing against the lawes of men , and the vice-gerent of god. this then being the circumspection of the law to prevent perjury in jury-men , the chancellour is by me to be considered , not in opposition to the course of other laws , but as recollecting his precedent arguments for the triall of truth by juries ; as that the act of god and nature determine not the remedy of justice , that witnesses are not taken hab nab , as we say , ignoti ] such as no body ownes , but are their own affirmers ; whose condition , life and way men are unsatisfied in , because secret and subdolous ; men never known in their own , nor ever known out of other mens way : nor conductitii , ] bought , and made witnesses , as plautus's fidicina conductitia was , who played what tune his company called for : and varro calls all works of pay conductitiae operae . no such buyers and sellers of innocence in the temple of juries doth the law suffer , but overthrows the tables of these money-changers , and all this it does to make way for upright judgment : tunc canunt cygni cum tacebunt gracculi . for , when men are sordidly set on gain , if their houses and estate be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and they have 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , heapes of gold ; yet , if they be venal , they will truckle to perjury , as every workman that will be well paid , learns to humour and please his imployer and pay-master : and this the law looking upon , as the moth and canker of integrity , decries and punishes it , and that with the concurrent acclamation of all honest men ; who , because they know not the deceits and lurches of their own hearts , are pleased to have these mandative preventions put upon them ; for faith untainted , and truth pure and defecate , saith seneca , is the most sacred good thing in the divine soul of man , compellable to evill by no necessity ; perswadable by no bribe or leure ; resolute against all terrour , constant in retaining its innocency : so , that acceptance of rewards being punishable , the law has done wisely to see , that witnesses be not conductitii , such as either neede for want of fortune , and will take for covetise any gratification to elude justice , and become false . vagi inconstantes . ] these are ill qualities which the law abhors in witnesses who under this name are accompted loose persons , though perhaps not such as the statute eliz. . calls vagrants , or the iacob . . vagabonds ; yet little better , vagus qui passionem manifesto ostendit , saith festus . this the greeks call by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , qui sine negotio , modo huc , modo illuc , inutiliter discurrit , an erratile and planetary peice of manhood carried up and down by the impetuosity of vice to this and that , without settlement in any thing . the ancients , as they accounted consistence and stability the all , almost , of virtue and wisdom , so levity and vagenesse the complement of all evil and infamy ; tully mentions aliquem vagum & exulem errare , and aves vagae , errores vagi , and fortuna vaga & volubilis ; and in martial there is , iuvencus vagus , and gressus vagi , lumina vaga , and murmura vaga ; and pliny writing of the name of the herb ambrosia , terms it , nomen vagum , inconstans , & multis opinionibus obnoxium , by all which the laws wisdom is apparent , for therefore does it exclude necessitous persons , or such as have habituated themselves to shift and shark , from all credit , as witnesses ; because custom has made it a second nature to them , and they cannot but be almost such in all cases , who doe apply themselves to be such in any . aut quorum conditiones , vel malitiae ignorantur . ] that is , they are so well known to be reputed honest and upright , that , if such they be not , their testimony is abated in the credit , for the law requires stanch witnesses , and presumes them such where they are not either convicted or violently presumed , and the law being so argus-eyed , and giving liberty to all well-grounded information , and it so importing the adverse party to inform against the witnesse , if cause and justice there be for so doing : this considered , occasioned the words , aut quorum conditiones vel malitiae ignorantur . these are the infamous persons that the lawes exclude testimony , the allowed ones follow to be touched upon . vicini sunt testes , de propriis vivere potentes , famae integrae & opinionis illaesae . ] this added to the former perfects the parallel , there 't was non ignoti , here vicini sunt ; there 't was non conductitii , here de propriis vivere potentes ; there 't was pauperes , vagi , inconstantes , here 't is famae integrae , & opinionis illaesa ; so that the variation adding to the emphasis still directs us to our authours excellence , which is to render the law considerate in every particle and point of its justice ; for it aiming at the great end of government , right-doing , imployes every instance of its power and reason to minister to that ; and that it doing , by impeding the contrary as well as by advancing the proper tendencyes thereto , arives at that compleatness therein , that denominates england the throne and center of justice ; and that not onely for the exactness of witnesses , and impartiality of juries , but for that the returners of juries are not men mercenary , ill to live , but of great fortune , bloud and breeding , per officiarium nobilem & indifferentem electi , ] and , when served they are to testifie their knowledge in a cause ; 't is not arbitrary , whether they will or will not , but they are fineable if they do not : yea , and as the cause may be , i think , the party that suffers damages by the absence of a witness legally summoned and served to appear , and not appearing , being well and no act of god impeding him , may bring his action against such an absenter , and recover in it against him , which is perhaps the cause that the text sayes , et coram iudice venire compulfi ] that is , the obstinacy of such absence being penal , both from the king whose laws are contemned , and to recompence of the party who by it is damnified , the witnesses may be well said to be coram iudice venire compulsi . this then the law doing , and to that end which is onely propitious to order and national charity ; the conclusion of the chancellour is to good purpose , quid ultra vere nihil est , meaning this the hercules pillar and the meta ultimae of all politique prudence and magistratique care : for , when that is done to further virtue , which the wit of man can devise or carry on , what more can be thought endeavourable then is aimed at in this proceedure ; which , how the lawes of england effect , let those judge who consider , that such are onely allowed to serve on juries as are fide digni , and are men of estate , and those to give testimony unto them , who are not onely unblemished , but are positive , and not by hear-say , witnesses . so tenacious is the law of its just spirit , that it abates not one iota of it to gratifie any greatness or prevalency , but gives this motto , fiat iustitia & ruat mundus ; which constancy , upon so divine a basis , displayes the rectitude of its principle , and bespeaks the great reward of honour from god and men . for when men of wavering mindes have played all their prizes , and had a venture in every lottery of levity and change , that will be the indeleble mark of a wiseman , which seneca commends socrates for , whom he brings in justifiing himself immovable , notwithstanding popular tumults , as the rocks are for all the high seas that dash against them . and therefore though maro may commend latinus as he deserved , for being , as he publishes him , ille velut pelagi rupes immota resistit ; and (a) papyrius may be cried up as the onely roman . youth that could keep a secret , and be constantly resolute against the sieges of love to discover it : though robert earl of gloucester , son to h. . have the praise of our historians for adhering to a good matter , and being zealous in it : and that christian rule in saint cyprian should be owned gospel by us , which is not to be hoped it should in this degenerate age be , wherein gold and greatnesse are the onely numens ; i say , should all these be amassed into one , yet would they not come up to the lawes constans & perpetua voluntas ius unicnique tribuendi . and therefore 't is a good rule that a wise man , monarch , and christian gave us , that the law was the surest foundation of happiness that any man could rest upon ; which when the belief of it evidences it self in practice , will prevail with me to admire the graduates in this perfection , as contenders with the venetian senate for mastery in constancy , of which , truely i think , they gave a matchless president in the case of carmagniola their generall , who , though openly suspected in the senate , wherein execution of him was concluded , yet in all the eight months that passed between their conclusion and his execution , though he had many friends in the senate and some of them poor , who might have received great rewards for discovering his danger to him ; none of them discovered it to him , nor did he know of it till it fell fatally upon him ; which justice , to the honour and success of the senate , argues them , that were members of it , ambitious rather to honour their government , then advance themselves ; which if we of this nation would doe , we should better deserve then we doe , the freedom of such a law and government , as we , blessed be god , have constituted . by all then that has been written it appears , that a readier way to justice no man can go , then by those stepps that the law has chalked out . and so i take leave of the text , and proceed to the following chapter . chap. xxvii . sed quomodo in criminalibus leges angliae scrutantur veritatem , etiam rimare pernecessarium est . here the chancellour , like an exact master , observes method to the clear and kindly attainment of his end , which was to endear the law to the prince , and the prince to it ; and that upon conviction that it is the most expedite way to govern english men by , and has the best means of discovering offences and providing remedies for them in england , that can possibly be found out : to which end considering , that causes relating to justice are either such as are civil , or criminal , having fully in the two forgoing chapters treated of civil actions with their remedies and manner of prosecution , he now comes to criminals , as they are tried and proceeded against in england by the common law or by the statute law , which come under the title of leges angliae . and this he thinks not onely convenient to explorate and detect , sed peruecessarium , as that which unles removed will obstruct his after and more effectual passage ; for his errand being to the prince , whose soul and reason he would conquer to and confirm in , so just and behovefull a thing both to king and people , as a good opinion of the law of england is , he judges it peruecessarium throughly and absolutely requisite to evidence to the prince , that the law is not more defensive of priviledge , then prerogative ; nor a stouter bulwark to civil rights between man and man , then of the sovereign's person , honour , and prerogatives , the violation of which endowments of soveraignty it judges criminal . and that the chancellours intentness may more illustrate it self , i shall crave leave to touch upon two things in this transitionall clause . . the epithite he gives the lawes enquest after criminall offences , scrutantur veritatem : the greeks express the verb scrutor by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , quod proprie est interrogando aut colloquendo scrutor , elicio , indago : and by this the chancellour informs us the meanes and way of discovery of treasons , felonies , and breaches of the peace , which are all criminalls , to wit , by way of enquiry , examination , and following offences by a wise and diligent persuit , while the bruite of them is fresh , and the stinch of them warm and reaking ; not but that the truth of some facts lie a great while unfound out , because either secret , or not ripe for vengeance in their discovery : but when ever the law has intelligence of offences and offenders , by the ministers of justice , and officers of the crown , it eagerly pursues them , and dives into the nature , circumstances , and aggravations of them ; and this to know is pernecessarium , because it implies zeale to justice , and gubernative severity ; which by prosecuting offenders is tender , and conservative of well doers : and this the chancellour intends by scrutantur veritatem . secondly , the chancellours drift in bringing criminals to be discoursed on is notable , rimare pernecessarium ; it should , i think , be rimari , for the verb is deponent , and has no active , because it is of active signification ; the nown rima signifies a cleft , chap , or chink , which is not close joyned : and by allusion plenus rimarum is by terence the discription of a babler , who has such wide chinks and chops in his mouth between his lips , that all secrecies pass thorough them : plautus also uses invenire rimam to finde excuse , or means to escape , as little vermin do at the least crevise , or chinke . hence one sense of the verb rimor is to cleave , as timber that is shaken by the winde doth , though the usuallest be to search out narrowly in every corner and cleft ; so claudian uses iuga rimari canibus , for to hunt with hounds in every corner , to which our chancellour without doubt has respect : telling the prince , that as the law is very exact in its appointment of all things that concern king and subject , and is defective in no point of regimentall prudence ; so is it his care to finde out apt words to carry his ardent affection to the lawes of england , pleasingly to the princes ear , and from thence to his love and affections . vt in cis plenaric aguita ambarum legum forma , quae earum efficacius latentem revelat veritatem certius agnoscamus . here the chancellour intimates to us three things ; first , the end and use of good lawes , latentem revelare veritatem . secondly , the modus , by which judgment is rightly made , and in what manner the law does this , that 's plenaria agnitione ambarum legum formae . thirdly , the danger of civil broils to render national law odious , and forraigne lawes amiable ; this i collect from the expression of ambarum legum : for our chancellour would never have so eagerly asserted the common law of england , and debacchated against other laws , had he not seen them probable to be competitors with the municipe laws , the love of which exotique lawes probably he perceived , either stealing into the princes heart , or whispred into his eare by adulatorious forraigners in the time of his exile . the end and use of good lawes he makes to be latentem revelare veritatem : truth is the precious jewell which does latere , and is not come at but with toile and hazzard ; which made the pythagoreans say , veritas in puteo : indeed methinks solomon had some meaning analogick to this , when he bids us get wisdom rather then gold ; now both wisdom and gold do not lie on the surface , nor are they obvious , but obtained with difficulty . since therefore her lustre has such damps , and her price is so invisible , the work of us mortalls is to prosecute truth so hard , and follow after her so earnestly , that we give no rest to our eyes , nor recreation to our lives , till we apprehend her dulcis veritas in interiora melodia ; this therefore the chancellour here publishes to be the labour of the law , latentem revelare veritatem : to rescue the beauty and virginity of truth from the rape and force of pretended virtue , but reall falsehood her antagonist . for , such is the craft of the world's polycrates's , that they do omnem movere lapidem ; to bury truth in the heap of fallacies , and to make justice set up somewhat as a law , which should bastardize her , and , in stead of her , legitimate that spurious product of villany , in justice . this makes the law so exact to trie , so vigilant to avoid trapanning , and from this are often delayes occasioned , which are reall advantages to truth , not ( as is supposed ) methods purposely studied to enhance gain : for as mariners , when they have but a bad winde often shift sayles , and waft from shore to shore , that they may make some way to their port , and not lose all progress because they have not a full gale : so are law-makers necessitated to use all means to right truth , and use all instruments to her clarification , rather then lose one grain or atome of her . for all truth qua such is mysterious , and to be sought after till it be found , if ever it be ; and the least dram of it that we attaine as the consequence of our acquisition , will be wellcome to us ; and we shall account our selves to be recompenced for all our labour by it . the truth then that the law seeks for here , and having found reveales , is the truth of fact ; that is , whether a malefactor be so bad as he is suspected , and accused to be : for it sometimes falls out , that the clamour is greater then the offence deserves ; and if the punishment should be in hast executed , the magistrate would be artifex injuriae non opifex iustitiae : therefore policy , that is well advised , cautions that a just assay should be taken of every man and thing , and that such arts should be practised as may sever the precious from the vile , and the gold from the dross ; and that is done by examinations of witnesses upon such heads as may best conduce to knowledge of what they understand in the cause : for lawes are intended to settle the rule of equall distribution both of mine and thine , rewards and punishments : and being directed to so usefull an end as is the decision of debates by the line and plummet of truth , what more usefull benefit to humane societies , then lawes ? but how shall good lawes be fitted to answer these good ends , or how shall men make use of good lawes to the latitude of these good ends . that the chancellour resolves in the second place , plenaria agnitione ambarum legum formae . ] for knowledg of the forms which do dare esse , makes a man capable to judge of their fitness and conducibility to those ends . as it is not a trite skill in simples , and a bare book learned speculation that makes a good physician ; but the knowledge of the operation , and the view of them in practice upon patients that makes an expert practicer : so is it not a light and oscitant touch in the study of law that makes a man capable to judge of the law , but an accomplished mastery of the reason of it , and a coylification of it into ones mother reason , rectifiing it thereby , that entitles a man to judgement of what the law is , and is not . for formes , as they are modelled and fixed to the freehold of the law , are not purprestures that are destroyable without great inconvenience , but they are so fastned to the maine principles of polity , that with them they endanger the ruine of government : for we must reasonably imagine that the setters up of them , wise , ( and in their times ) worthy men , had solid reason for what they did ; and thereupon doing it , we are to conclude there is some inconvenience will ensue that demolition , which was on purpose raised as a sanctuary to order : the consideration of which may lead us into the reason , why judgment of forms , methods , and regulations of government in the world , is not committed usually to young and green-headed men , whose brains are too mercuriall to fix , and too sultanish to deliberate of things ; but to grave and sad men , who are above the levities of youth , and beneath the dotages of old age . byas that wise law-maker appointed no man to be governour of his people till fourty yeares of age ; and the reason was , youth is light and heady , age is soure and infirm : and the usuall saying was , consilia senum hastas esse juvenum ; pointing out no doubt at this , that experience the fruit of yeares is the season of iudgment . and therefore as to the case in point , he that will judge of whether lawes proceedings are best , must know the forms of both , which few fully do that are not of yeares ; and spend not their yeares in study and search into both lawes . yea , suppose a man had the law-learning of volufius metianus the master of that renowned marcus antoninus , who gives this testimony of him , that he was in legibus interpretandis experientissimus ; yet if he be as volusius was , in iisdem violandis longe magis exercitatus , what is he profited by it ? such a volusius who askes , whether one thinks there be any law in the world which he knew not , may be answered as he was , dic mihi , estne ulla lex in mundo quam praestes & observes ? that then which must give a man a right judgment of laws , will be consideration thorowly of the forms , steps , and marches by which they move ; and how suitable they are to the people , they are to order : for our chancellour now speaks to the prince as sollicited by his breeding and conversation abroad , to close with forreign lawes , under which he saw people obedient and loyall , and countreys in peace : when in england where the common law had , in pretence , its course , at least where no other law but the common law was admitted , rebellion prevailed , and civill wars continued ( a mote or beam in the princes eye , which made him look as it were a-squint , or unpleasingly on the common law , and delightfully on other lawes ) the chancellour courts him to continue the common law his darling , though the other law had some , yea much respect , as , in its kinde , it was worthy to have of him . si reus quispiam de felonia aut proditione in anglia rettatus crimen suum coram iudicibus dedicat . concerning treason and felony somewhat hath been written heretofore , yet this chapter being purposely designed by our text to the treaty of it , i crave leave to add further what i humbly conceive pertinent to this place . reus de felonia aut proditione ] this referrs to the two great capital offences punishable by law ; felony ] which anciently was the offence of the vassal against his lord , perhaps for little thefts and slight of hand , whence it may be that sore on the finger called a fellen may come : since , felony was punished with forfeiture of the estate and goods of the person offending , which though they were redeemable by mere and mergild , yet now are not ; for henry the first made theft , the most ordinary felony , punishable with death : and though the common law brought off felons by their books , yet since many statutes , (a) taking away clergy , leave felony to the punishment of hanging the body and forfeiture of the estate . the crime of felony is a grievous one , and to call a man felon , is to entitle him to all the opprobry and danger imaginable . at this day then felony is the great brand of every offence against the peace , crown , and dignity of our sovereign lord the king ; for , all treason , though it be more in the punishment , yet it has in it felleum animum which makes the atrocity of it . to discourse of felony at large is needless , since both stamford , sir edw. cook , and others have abundantly done it , therefore i referr the reader to them . vel proditione . ] this in the latitude of it signifies any falseness , but chiefly that which concerns the magistrate , and his charge , to deliver up whom or which into the enemies hand is capitall by all lawes . tholossanus gives us an account of all nations abhorrency of it , and severity against it : but this proditio here is alta proditio , or laesa majestas ; which being an offence against the great god , thorough the king , who is deus post primum secundus , and is solo deo minor , the minister of god for our good , and the dispenser of the power of god to the foecundation of order ; the lawes of england makes capitall , as in the notes on the chapter i have shewen ; onely as in all cases , not the accusation but proof makes the guilt ; so is it here , and thereupon in order to proof , the offender , or presumed so to be , is called by our text rettatus . in anglia rettatus . ] i confess , at the first view of this i thought it was a fault in the coppy , and that rettatus should have been rectatus ; the word used in the statute de bigamis , quando de felonia rectati fuerunt : but when i considered the word had another sense there , then this must have here , i searched to finde the proper notation of it , and found it to signifie arrested , or accused , so gents rettes de felony stat. . westminst . c. . so in the statute marlbridge , c. . si clericus aliquis pro crimine aliquo vel retto quod ad coronam pestineat arrestatus fuerit ; and so westminst . . c. . pur view est ensement que quant clerk est pur rette de felony ; and so c. . gents rettes de felony : and methinks rettatus may come as well from raptatus as from the other etymologies , accusations and arrests for treason being things of violence , the party that is guilty of them being not willingly apprehended for them . crimen suum coram judicibus dedicit . ] if the felony be confessed , then the triall in form of law is needless : but if he do dedicere ; that is , deny it , and stand upon his integrity as not guilty , then it must be tried modo & forma ; which the law therefore provides for , because it meets with few offenders that take the prophets advice , to confess their sins , and give glory to god : for they are so far from that , that they have contrived a proverb , in barr of that ingenuity , confess and be hanged . the law therefore thinking fit to search into all offences of this nature , as intolerable , provides for the triall , as well as the apprehension and detection of it , which is , by empannelling of a jury to trie it . mox vicecomes comitatus ubi facinus illud comissum est , venire faciet coram eisdem iudicibus viginti quatuor probos & legales homines , &c. this jury is but to consist of twelve , but the summons is to be of double as many , that there may be room for exception : and this the law does to prevent all surprise , especially in treason , which being a heinous guilt , and having a heavy doom ; all the justice that can be done in favorem vitae & relationum , is herein shewed : these then good men and true , of the neighbourhood , as in actions reall and personall , returned , having in estate . . a year in lands and rents , as appoints the statute e. . appearing in court , the fact is triable : if the prisoner interpose not by challenge of them , or some of them , which the law allows him to do , rettatus ille cos calumpniare potest , &c. ] sayes the text. et insuper in favorem vitae calumpniare potest triginta quinque homines quos ipse maxime formidat . this shews not onely that an offender may challenge , but also why , and how many he may disable to serve against him : the freedom that the law allows him is calumni●re , which we translate challenge ; and so our historians use the word as well as our lawyers : so walsingham uses it when relating the famous coronation of richard the second , and the pretence the lord frevil had to be champion to the king : and the men he may disable are such of the returne as he does maxime formidare ; that is , such as he feares , as well for their justice and impartiality as for their enmity : ( for a traytor has as great spight against loyalty in the jury as any thing else ) and this he may do to the number of . not to three full juries , for then there may be a progressio in infinitum , and no triall easily be , but to as many as may be within three whole juries , that the law may be known to favour life , and avoid cruelty . t is true , i know by the h. . c. . these peremptory challenges were reduced to twenty , confirmed by of the same king c. . ; and by the h. . c. . made perpetual : but the statute of & p. & m. restoring the triall by the common law , offenders are indulged challenge peremptory to . as the text sayes , qui ad ejus calumpniam cancellabuntur in panello , &c. licet ipse nullam causam assignare sciat , &c. quis enim tunc mori possit inique in anglia pro crimine , cum tot juvamina habere ille poterit ob favorem vitae suae . this the chancellour infers to shew the prince how much the laws permit to the favour of life , even in those cases wherein the law is most provoked ; and the quis inique mori possit in anglia , &c. ] is not to be expounded as if it were a challenge to the bitterest foe to our lawes , to instance in one that injuriously had died , or to boast of no naeve or scarr in the administration of justice , nothing less : for this livia (a) of our law may be in some things too speedy to be justified to her own augustus . some instances will not be denied to be produceable , wherein there may have been more hast then good speed : there may be such an offender as many freeholders in a shire , condemning in the sessions of their own judgments , and that upon perhaps a bruite , or mistake ; may in persuance of that prepossession verdict guilty in triall upon him : and there may be iniqua tempora , wherein such bloody usurpers as richard the third , and such parasites as sir george rutliff his creature domineering . many may ●nique mori in england , these times and things have been elder and later in england , therefore the chancellours quis tunc , &c. is not rigidly and absolutely to be taken , as if it imported an affirmation , excluding all instance to the contrary : but it is interpretable as an inference of prudence which from meanes judges of ends ; & so we must apprehend the chancellour , to intend that thorow the punctuality required by law to the trial of causes , there is as much as art and conscience can contrive to extrude corruption , and to favour preservation of right , life , and reputation : and that if the sins of the nation have not provoked god to give up the subjects to irreligion and falseness , there is safety to all that 's deare to an englishman in his triall , nor does often any good thing that is his suffer by them ; yea , if juries be but knowing , honest , and resolute , nothing of injury can judicially be done in england , and , especially in case of life : and , when in such times and cases things have been hand-over-head injuriously carried , times of better temper and restitution have reversed the judgments , and dishonoured the practices of them : so did the nation do by the murther of thomas the good duke of lancaster , who was not put to death per legem terrae ; and therefore was declared unlawfully proceeded against , by parliament . and so , though our eyes saw , and the hearts of wise and worthy men in the nation mourned for , the extrajudiciall proceedings of high courts ●f iustice , and courts martiall , as they were called ; wherein not onely many of the loyall and brave spirited lords , knights , gentlemen and commons of england were sentenced , and by order of it executed : yea , and what is ever to be rivetted into the abhorrence of an englishman , the sacred and divine person of our then wise and pious sovereign king charles the first ; forced within the power , and martyred by the violence of that execrable usurpation : though , i say , this nation has had such monstrous impieties acted in it , yet has it obtained from god the mercy and opportunity of nationally disclaiming , and nobly abhorring the sacriledge and truculency of it : yea , and to perpetuate the antipathy of the nation against it , has by act of parliament , not onely censured it , but set apart the th . of ianuary : ( if any such day ought , as but for that dedication to pennance , it ought not to be allowed in the moneth for ever after ) to be a day of humiliation , nigro carbonè notandus , and of expiation for that nefarious fact ; which i will no further censure because the sentence of law has past on it : i return then to what follows . mallem revera viginti facinorosos mortem piet●te evadere , quam unum iustum injusté condemnari . this vehemence of our chancellour's well becomes his pious and divine soul ; which knew , that to erre on the right hand , by too much lenity , was safer , then to erre on the left by too much rigour : and as i am bound to believe that his afflictions had brought god and him into intimacy , so does he in his actions resolve to follow god in all the actions of judicature his providence shall interest him : and hence it is , that as gods delight is mercy , and iudgment is declared by him to be his strange work ; so does our chancellour here profess his alienation from injustice , and that if he must be a judge he had rather rid the world of many miscreants , then be accessary to the oppression of one righteous person unrighteously adjudged to death by him . and good reason he had thus to prefix his mallem to that truth , because not onely the righteous man is better then his neighbour , and the best is to be preserved ; and the destruction of one good man is afflictive to god , according to that of the psalmist , precious in the eyes of the lord is the death of his saints : but also as one good and just man may be more worth then a world of dissolute ( and god damne me ) sinners ; so is the testimony of god himself , who , when he looked upon the earth , and beheld it was corrupt , for all flesh had corrupted his way upon the earth : yet in the seventh chapter v. . god sayes to , and of noah , thee onely have i seen righteous before me in this generation : and as for the sake of this just man , god reserved some men alive , who were with him in the ark , so for the unjust cruelty of the iewish nation against that holy one , and that just one our lord iesus , whom they barbarously and with high contempt crucified , did god bring the fierce and puissant roman upon them , who rifled the temple , sacked the city , carried away the nation captive , and determined the account of iewes and iudaism all the world over . these examples tell us , there is reason for the chancellours mallet ; nor are the instances only in scripture , whence the prepollency of one to many may be confirmed , but in other authours also . aristides is represented to us so just , that the graecian judges would preferr his word to many other mens oaths : and socrates so matchlesly wise and exemplary , that after his countreymen put him ( the eye and soul of greece ) to death , they never did any brave action either at home or abroad ; but dwindled away , as if god revenged in their infamy the death of that heroick . among the romans there is honour done fabius coeso , as the only conservator of the government . and quintinus coeso , by opposing the agragrian law , is counted a patriot more worth then all the plebs . so fabius cunctator ; these and such like are famous above many . and if one worthy man whose justice has the oriency of a carbuncle , and glisters in the night of degeneration , to the dislustre and eclipse of those whose interests in the domineering follies of ages make them dark as hell , and dismall as those subterraneous labyrinths that the fiends of satan retreat to : if thus , i say , one just person may be corrective of a multitudes exorbitancy , and reduce them from the evil of their wayes ; good reason is there for this choice of our chancellour , in desiring rather to pardon twenty evill doers , then punish unjustly with death one just man. since in the one he contributes time ( if god will give grace ) to their repentance , who by living longer may live better : but in the other he drawes innocent blood upon himselfe , which david deprecates , deliver me from blood-guiltiness , o god , thou god of my salvation . in hoc equidem processu nihil est crudele , nihil inhumanum , nec laedi poterit innocens in corpore aut membris suis. as the guilty being impeached cannot ( salvis legibus ) go unpunished , so cannot the innocent be charged in his body , or any member of it ; for the law of england is a mercifull law , and sayes , disclaimingly as to cruelty , as perseus in a like nature did , neque enim mihi cornua fibra : for the law has nothing of the adamant , flint , steel , which are said cornu in pectore gestare ; but it is composed of sweetness where it may allure , and of pitty even when it is forced to correct : and he is not a true judge of this law who condemns offenders without remorse for their sin , and obduration the cause of it : nor are our punishments , racks , torments , making up between walls alive , inhumane butcheries , such as in other nations are wont ; those cruelties are no methods of our law : if the offence be light , suitable to it is the punishment : if criminall , then death : and if men deserve neither , by judgment of their peers , innocent they are : and as such cannot suffer in their whole , or any part of their body ; for as no man can be put to death but secundum legem terrae ; so not lose any limb nisi per legem terrae : for mayhem is an offence against the law , and actionable , unless where the loss of a member is permitted by act of parliament : for , though of old the privities of men for adultery , and their eyes and hands for theft were avitable ; yet since christianity , and the more illuminate times of it , loss of members of the body has been allowed , but in very few cases , as in striking a judge in executing his office , or any other man in the face of the court , the court sitting : and loosing of eares in case of cheating and forgery . so that considering that punishments are upon such just grounds , and that no person has permission in england , through the greatness of his power , to oppress any man , nor may any man justly dread calumniam inimicorum ; because ( non torquebitur ille ad arbitrium ipsorum ) but they can no otherwise be revenged of him ( except perjuriously and murderously , which the law will severely punish them for ) then the law allows , and the guilt deserves : since , i say , the law of england is so tuitive of the estate , life , and member of men , as it ( to the admiration and acclamation of all our neighbour nations ) is known and confessed to be . the chancellours inference is most true , sub hac lege vivere quietum & securum est ; and so with a prayer to the prince to chuse ( upon these things premised , and the reason of them weighed ) whether either the foreign or patrial lawes he will best approve and adhere to , he concludes this chapter . chap. xxviii . cui princeps . arduum ambiguumve cancellarie , non conspicio , &c. this chapter personates the prince , as ingeniously suppled by the chancellours application and reason , into a plenary concession of his allegations , and a subjection to the prevalence of his learned arguments : and as the several passages in it proclaim the prince generously ductile , ( for i make no question but the penning of it is exploratory of his addiction , and rather historically true then parasitically fancied ) so the account he is personated to give , is amply masculine in the vigour of its reason ; for as the chancellour did not present him , rebus palestrae & olei , as light things are called by tully , but with the great things of the law , and grave arguments to work upon his judgement and affections , to love and follow it , so the prince did not shew himself morosum titubantemque to such wise offerings ; for that had been to brow-beat his age , and to dishearten his loyalty . yea if such unsetledness of humour caused the desultory satyr , when invited in time of frost and snow into the country swains house , seeing his host blow his hands before there was a fire for cold , and when there was a fire for heat , to cry out to the swain , farewell sir , i le have nothing to do with them that are of so uneven a temper ; i say , if this owl ( as it were ) of the desart could not away with hot and cold out of the same mo●th , much lesse could the good and loyal chancellour have borne the peevishness and obstinacy of youthy greatness , if it could have deserted its native majesty so far as to have shewed any thing unlike love , gratitude , and resignation to his constant duty , unshaken loyalty , and matchless learning expressed towards him in his education and travel ; but the goodness of the prince was such , that he was resolved never to try the patience of his chancellour by doing any thing of contradiction to him : and therefore he is brought in here ( as i believe he truely carried himself ) gently yielding to what is insinuated to him , and protesting aversation to morosity or waveringnesse in the choice of that he commends to him ; for every man desires to live long , and see good dayes ; and this to obtain is to be secure , to live a safe life secura quasi secutura mala rescindere , to dock all reversional pretenders to annoyance , and that by a fine and recovery of obedience to that law which provides muniment for such a darling as life , and security in it , is . and this the law of england yielding all the subjects under it , by preventing all occasions and improvements of malice , and by allowing refuges to those that are prosecuted by it , to wit , innocent persons , who may in the king's courts , and by the king's subjects , juries , in tryal of the causes be preserved and quitted ; since it is not the fair plea , nor the numerous evidence that the law is seduced by , but the justice of the cause made out by clear and honest witnesses , omni exceptione majores , that it is led by ; when , i say , in this happy consistency , it regards the body of man , that little digest of omnipotency , wherein there is a perfect correspondency to the method of our english polity , the heart sovereign , the brain chancellour , the faculties peers , the bloud lawes , the veins and arteries officers of ministerial destribution ; the parts and members the commoners in this common-wealth ; and all congregated in the parliament of the body : when i humbly conceive all these are orderly preserved secure from laesion and confusion by the lawes , not onely of our civil society , but national function ; and with these , the goods and fortunes which are appendant to these . there is great reason to acknowledge the lawes of england the most deserving darlings of english-men : let me be free , i care not who knows this english humour in me , i value the english cooking of dyet , making of cloaths , way of house-keeping , friendliness of greeting , fidelity of word , steddyness in counsell , zeal in religion , boldness in the field , and matchless administration of justice beyond any of these of forein extract , and i hope i write herein more majorum , and if i erre , 't is ex amore patriae , cui deesse ( to use the historians words ) aliis turpe , camillo nefas esset . and so i conclude this chapter under pardon of my text-master for writing no more ; and , of the enamourated with forein things and customs , for writing so much ; and if this little be to be vile in their eyes , i shall venture to be yet more vile , in those chapters that particularly are explorative of the lawes and modes of that country where our chancellour was then an exile ; yet no otherwise or further then becomes a modest and generous ingenuity , and the necessary vindication of my native country , and her customs , lawes , and sovereign ( to whose honour i am an humble valect ) doth require of , and i hope will take kindely from me . chap. xxix . cancellarius . iuvenis recessisti princeps , ab anglia , quo tibi ignota est dispositio terrae illius , &c. here the chancellour mindes the prince of the necessity his youth has to be instructed in the country of england , who is to judge of the lawes of england ; for in as much as the wisdome of legislators is seen in conforming lawes to the nature of the people they are to regulate , and the lawes of england being thus suited to it and the subjects of it , the right judgement of those lawes will best be presumed to be , where the best knowledge of the country , where they rule , is had . now that not being possible to be in the prince , whom the fury of what the chancellour thought rebellion , drove away ; the good man , who had long been a man of law and prudence , applyes himself to supply that to him , which the force of his father's extruder denyed him to be accomplished with . iuvenis recessisti ] this youth is one of the six ages of life , being the time from to . for these ages learned men thus destribute , . infancy , from the birth to years old ; . childhood , from thence to ; . adolescentia or the adult-age , thence to or ; . youth , thence to ; . age , thence to ; old age , quod n●llo annorum termino finitur , and this they call the ultimate part of old age , & terminatur in morte . amongst these ages , youth , by reason of which the prince is termed iuvenis , is the sturdy and pleasant part of life , that which has evaded the meridian of adolescency , and grows towards the after-noon of age ; this was amongst the romans the military age , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and vlpian the scholiast upon demosthenes tells us , there was a law among the athenians that men onely should go to warr from to . which though (a) seems to confirm , yet lipsius denyes or at least suspects , because the gracchian law was , which was direct against so young admissions ; and if consideration be had to those passages in great authours , that years old was the boundary of mens warring ; and that years service was the utmost time the romans required men to , as sigonius , tacitus , salust , and many other authours agree : then about years of age must this youth for warr begin , though i know tubero in agellius affirms the time from . but i dispute not this , that which i am to urge is , that in some time from or our prince here was , when he left england , or else our chancellour would not have said , iuvenis recessisti , and that it was then when perhaps the gaities of life did so engage him , that he was not for love to them at leisure to consider the more consequent parts of intellectual accomplishment . for , though it cannot be denied but that some there have been of rare perfections , young in yeares , as i have heretofore shewed , and as further i might in the examples of (a) daniel , solomon , iosiah , damas that famous magnesian bishop , of whom st. ignatius writes honourably , and timothy the bishop of ephesus , whose youth st. paul gives a glorious testimony to , as that which was exemplary , and not to be contemned but imitated ; yet for the most part it is otherwise : men do sero sapere ; not ponder and gravely weigh things till they have great abatements of passion , and aduances of calmness , which is the reason that seneca , a great lover of the florid and sparkling times of life ; yet gives his vote for age , that men ought to bless god for it , as that which affords the one onely comfort , if we know how to use it ; which considered , the chancellour mindes the prince , that in regard he came away so early from england , before he thoroughly understood it , he should bethink himselfe what he did before he banish the english lawes his love , iuvenis recessisti . recessisti . ] mannerlily and softly expressed ; that which after-ages would call force , the chancellour calls leaving england : the chancellour knew nothing more unpleasing to princes then to be compelled , and therefore though compelled he was ( for he would not sure have left this land had there not been danger in staying in it , where another was more in favour then he , and in power then his father , ) yet though on these termes he betook himself to france , in hope to finde a sanctuary , which some princes have not found ; though the marquess of mont-ferrat did among the venetians : whom when he was beaten out of his countrey , they so courteously entertained , that he was , in the return of his countrey to him , unwilling to leave venice : i say , though this phoenix courtesie was his happiness , yet no prince has cause to hope for it : and therefore this prince may reasonably be thought unwilling enough to goe , but when he was there , bravely bore this misfortune , as his attendant and wise instructor here expresses it in this word recessisti . ab anglia recessisti . ] concerning england something i have wrot on the th & th chapters , yet am bold to add what follows : recessisti here imports not the choice of the prince , but a fate upon him ; such an one , as though he beare because he must , yet he delighted in no more , then great spirits do to retreat , recedere quasi retro cedere : which because it is mostly a token of worsting , has some term of diminution affixed to it . turpiter victa venus saepe recessit is ovids . thus when a man changes his condition of life , and being ashamed as it were , or forced by necessity of affairs to seek somewhat better then he at present has , he is said recedere à conditione , à persona , à statu ; and tully uses recedere ab usitata consuetudine , and recedere ab officio for non facere officium : this considered , the chancellours words here argue no more desire in the prince to depart england and take refuge in france , then men do when they die which is to recede life ; not because they think death better , but because life can no longer be enjoyed . for , alass , what was it not that is desirable to get and hold , which he parted not with in parting with england ? a countrey one of the best and largest of the islands of the known world ; the glory of brittain : called england from angela the daughter of a certain saxon duke , who ruling it , and loving her , called his government after her name . anciently it was called albion , after brittain ; famous it has been in antiquity for its fertility : onocritus the athenian philosopher , whom tatian and clemens alexandrinus think was authour of those poems ascribed to orpheus , relates it to have so fruitful a soyle , vt cereris sedem ibi fuisse videatur , furnished also it has been thought of old , and is yet , with those accommodations which toaled hither the phoenicians to us , and with the lead and tinn that they came to fetch returned us learning and arts , ( many greek philosophers coming hither in their floats , ) and calling sylly , a part of this island 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the cassiterides ; yea so happily situated is it , that it seems to be the eden of the world , subject to no extremes , either of vehement heat or violent cold ; so that it is no carrhamitis , or house of death , as northern countryes are , that hardly ever see day , or feel warmth ; nor is it in the centre of the sun , or under its direct perpendicular ; but temperated with heat and cold intermixed , that it may truly be called regnum dei , a place that god has peculiarly blessed with all comforts for life , water , flesh , fish , herbs , fruits , for medicine and delight , abounding in cattle of labour , profit , chase , but none of prey , furnished with goodly cities , famous churches , religious houses , charitable hospitals , noble seats and large parks about them , beyond most , or all christendom in so small a circuit , which made charles the great call it the store-house and granary of the whole western world , and henry of huntingdon begin his history with its praises , calling it beatissima insularum , after whom a poet sayes thus , anglia terrarum decus , & flos finitimarum est contenta sui felicitate boni , externas gentes consumptis rebus egentes cum fames laedit , recreat & reficit ; commoda terra satis , mirandae fertilitatis prosperitate viget cum bona pacis habet . which i thus english , blest europe's crown , in neigbours eye twixt groundless envy had and admiration , to wants of whom thy store's a granary , and yields abundance to the famish'd nation : ah fertile soyle , ah earthly paradise , where life's delights abound , where dainties flow , on which jehovah's mercy sets such price by peace preventeth plenty's overthrow . it is famous for its ancient reception of christianity from ioseph of arimathea , simon zelotes , &c which was here propagated before the year . four englishmen converted eight nations of europe to christ , winfred the devonshire-man converted the germans , saxons , franconians , hassians , and thuringeans ; wilbred the northern-man the freisians and hollanders ; nicho. breakspear of middlesex the norwegians ; and tho. of walden the lithuanians . it is famous for pious princes , of whom it hath had more then any nation , besides the kings of it are anointed , and hence are capable of spiritual jurisdiction , according to that of our law term hilarii , e. . reges sacrosancto oleo uncti sunt spiritualis iurisdictionis capaces . it s crown had and hath very large territories , for besides ireland they have commanded from the isles of orkney unto the pyrene mountains . it s famous for its beauties and features , no nation affording men and women so generally handsome and proper as it doth , which made goropius say , angli quasi angle , quia omnes caperent sui admiratione , what the poet said of chios , taking its name from chione , signifiing white and clear , may be said of her , — quae diutissima forma , mille procis placuit . — who being of a specious hue , a thousand captives to her drew . it is famous for its valour , its inhabitants being lions of courage and generosity , equally brave both on horse-back and on foot , with sword , target , or bow and arrow , or on sea , where it has ever appeared with navies , not so numerous and rude as due●●ius the roman led against carthage , which were growing on the stub and sailing on the sea in dayes ; or those tall ships led against hieron , which bare leaf and saile in dayes ; nor like the ships scipio led in the carthage warrs , which were felled in the wood and floating on the sea in six weeks ; nor were they in number , as polybius sayes the romans lost in one fight that number when the carthaginians accosted them ; but with tall brave warlike ships , of vast bulk , great strength , laden with robinet , falconet , falcon minion , sacre , demy culveriin , culveriin , demy canon , canon , e canon , basilisk which carry shot from to pound bullet , and were manned by great quantities of men . it 's famous for its wealth , hence called by some of the pope's puteus inexhaustus , and had it not been so , their avarice had drawn it long since dry , and the dayes of h. . so vainly and prodigally expensive had undone it . it 's famous for its learning , there being no nation to which it leads not the dance , its clergy have ever been pious and learned to a miracle , and arts have hence had great founders and benefactors , here were born alexand. halensis aquinas his master , scotus the subtile , bradwardine the profound , ockham the invincible , bede the venerable , and burley the perspicuous . it 's famous , renowned and envied for its common law , and peculiar priviledge from the injuries of great men , and depredation on property , the people of it being no villains but freemen , and the lawes being not arbitrary , but setled and fixed , and not alterable without consent of king , lords , and commons in full and free parliament assembled . this , this was the faire paradise of beauty and bravery , from which this noble young prince , notwithstanding his father's present and his own probable future right , was forced ; — quis talia fando temperet à lachrymis . — and from which , all things considered , he could not but be unwillingly driven , since if he knew so well what england was as he might have done had he longer stayed in it , and learned more experience from the prospect into it , he would account it the phoenix of lands and lawes : so , in short intends the chancellour to represent it in those comprehensive words , quas si agnoveris , & caeterarum regionum emolumenta qualitatesque eisdem comparaveris , non admirareris ea quibus jam agitatur animus tuus . anglia sane tam fertilis est quod quantitate ad quantitatem comparata , ipsa caeteras omnes quasi regiones exsuperat ubertate fructuum . this is the first instance of the excellency of england , fertility of soyle and plenty of fruits ; for though he could have instanced that it was ethnique and barbarous , that the inhabitants were a kinde of canniballs , and without god in the world , & sub hoc malo lemnio látuisset anglia , if god had not rescued us ; yet he reserves that for a fitter place , and comes in first with that instance of the goodness of a land , plenty , which the holy ghost , in canaans case flowing with milk and honey , calls the glory of a land ; and as the sterility of a land is the curse of the inhabitants , a fruitfull land turns he into a barren wilderness for the iniquity of those that dwell therein ; so an unctious and fruitfull land is the blessing of any people : now this fruitfullness men usually impute to three causes , supra , intra , extra , god's blessing above in making the clouds to drop fatness , and giving rain and fruitfull seasons ; intra , in the depth and fatness of the womb and soyle which receives not the dew and seed in vain , but nourishes and gives it rooting and extension ; extra , in mans endeavour of labour and ingenuity to improve what god has endowed to the reasonable latitude of its capacity : in all these , and whatever can rationally be couched under them , england is fertilis regio . . the mercy of god has seated it under a calm and temperate heaven ; t is to brittain what alabanda was to the carians , the most fortunate island : for it has neither extremity of heat or cold , but a mixture of both , to keep the constitutions of its inhabitants interpendent to the extremes , either of remissness or intentness ; and this temperature working upon the people , lawes , customs , every thing of it , renders it beatissima insularum : and we of england may say gratulatorily to god in the psalmists words , non taliter fecit omni genti , for had he not distinguished us from other nations as he has , we might have been as savadge in manners as we ethnically were , and out-beasted the beasts of africk , then whom the men there are little better : for as all beasts of the same kinde are not alike in all places , but some lions are more milde ( such as live on mountains ) not having that fury of heat in them which the desart lions in africa have , as aldrovandus instructs me , so is their difference of men according to the temperaments of their constitutions , which are regulated by the aires and clymates under which they are born , bred , and live ; and therefore god having suited the ayre , earth , men , lawes , all to each other , and made them all fruitfull of encouragement , riches , liberty , there is just cause to bless god for his mercy , that is the maine ingredient to our national and personal fertility : t is gods word of soveraignty that impregnates the earth , and makes it bring forth seed to the sower , and bread to him that eateth : that increases the breed of cattell , and blesses the increase of our flocks . for , though we in this land have no mines of gold and silver , no quarries of diamonds , no beds of pearls , no wombs of spices ; yet we have treasuries of lead and tin , lodges of wool and hides , magazines of cloathing and drapery , nurseries of cattell ; and we have blessed be god , noble marchant-men , who ship out native , and return for them forraign commodities , and this makes england an indies , a spain , an italy , a germany , full of the wealth of sea and land : this is the sourse of fertility , supra , and in the psalmists words , blessed are the people that are in such a case , yea blessed are they that have the lord for their god ; and i pray god the mercies god has shewed us of this nation do not make things mandrabuli more succedere ; that is , not make us do by our benefactor as mandrabulus did by iuno , whom the first year he offered a golden sheep to , the second year one of silver , the third one of brass : god forbid that we should so requite the lord , o foolish people and unwise ! god ●orbid when he has not been a barren wilderness to us , we should abuse our mercies to his dishonour . secondly , as the fertilitas coeli is the blessing of england , so fertilitas soli is that with which the nation of england is happy in also , our land is another campania , all marrow and fatness ; there is no shire or angle of its compass but has much of fruitfullness in it : here there is corn , there grass , in one part wood , in another mines , on this quarter grows timber for building , on that cattell feed for increase ; in this there are no desarts , no unimproved grounds to speak of , but every part as it is fitted for some specifick purpose , so is by the inhabitants well and wisely improved to the end it is most correspondent to , by reason of which there is not much bad land in england , as in other nations : for england for the sea-coasts and middle part of it is all fertile , and ( as it were ) for the most part deep soyled , either fit for gardning , feeding , plowing , or else wood-land ; and were there no other argument of its good soyle then that it nourishes so many inhabitants , and that so affluently , in so little a tract , and gives its inhabitants such succulent nutriment , that makes them of bold , brave , warlike ; daring and manly courages , that no nation does pleasingly face , or willingly abide battaile with them : yet , even this alone were an argument of a rich soyle . for that patch which brings forth much in a little , must needs have the potentiality of much in it : and when to it the benefit of navigation is considered , what it has of native growth more then it consumes , it exporting fetches in return what forraign commodity it wants . so that , what with its own fertility , and trade , ( blessed be god , ) it has breasts enough to succle its numerous brats at ; and if we be sequacious of our good king , whose extremities have taught him experience and sagacity to direct trade , as well as to lead forces , and administer justice ; for he is ex utroque caesar : i believe we shall carry the staple of trade and make our maritime force comfortable to those in amity , and formidable to the rest in enmity with us . for if england had not been the granary of the western world , if it were not the phoenix kingdom , if it were not tanquam inter stellas luna minores , neither the romans of old , nor the picts , saxons , danes , normans , spaniards , had invaded us , had we been a hungry , vast , and improlifick soyle , and nothing would have grown without much cost , labour , and hardship , no nation would have been eager after us : but when every conquering slave that could not live in his own countrey but miserably , lives here bravely , and with ease ; this made those attempts on us , which some times were repulsed , but when prevailing , took the season of the nations dissension , and the nations dissociation into parties . so that god having indulged the land of england with a brave soyle , nobly planted , pleasantly watered , inhabited by lords , knights , gentlemen and yeomen , with artificers , labourers , and common people in abundance : though this nineteen years here has been a fierce civil war , in which funest battells have been fought , and multitudes of men of all ranks , ages , and artifices ; yet is there almost little sign of a warr , no want of men , no visible depopulation ; so fruitfull has god made this time of captivity , that though many of the wealthy subjects have been beggered and diminished , especially such as had personal and portable estates , yet forraigners went not away with the spoyle of it , the nation still kept it , it is but transferred from men to men ; england yet , blessed be god , holds its own . and therefore if it please god to give us , that are natives , duty to our superiours , and love to one another , the ruine of england by these wars may yet be its making ; for there is a third way of fertility , and that is mans industry , which is in the effect a nemo scit ; for it brings impossible things to pass : this industry , o! it can almost do any thing , it has ( as it were ) removed mountains , or at least made wayes thorough them , so did caesar over the alpes , and alexander in his voyage to the indies : it has dried up and diverted seas and navigable torrents : it has erected hecatombs and pyramids from little attoms of principall materialls ; it has made glass malleable , instructed in all arts , languages , sciences , professions : found out the use of simples and their compositions ; of mettalls , and their digestion ; of mineralls and their use ; of peace , warr , justice , religion : nothing has been too hard for the industry of man to cope with and conquer . yea , so far has it usurped upon gods peculiar , that it has found out many secrets : and if archimedes did not delude himselfe , could move the center of the earth if it might fix its engine . now though i do not believe industry can do all that 's boasted of it , yet i do advisedly conclude , that in the industry of man there is such a latent power and life of actuation , that it comes neer the verg of miraculous : thus have men devised engines of battery and military use , whereby the strongest castles are surprised and won , and which seconded by diligence can do every thing : and hereupon have sundry noble atchievements and notable been performed ; yea industry has formed politics , and founded empires ; and the roman one , so vast in circumference , so venerable in its edicts , so formidable in its armies , so consultive in its senate , so fruitfull in wise men , so conservative of it self , so victorious over the universe , was but the industry of a romulus , a numa , &c. of those numinated heroes that succeeded them : so successful have mens industries been , that they have grown by it like fishes that have had no equals to feed on the nutriment of vast seas but themselves , and to whom alone the lesser fishes have been preys . and if mans industry have besides all this tamed lions , panthers , and tigers ; charmed serpents , enamour'd dolphins , civiliz'd barbarians , reformed debauches ; nay even joyned , as iulius caesar dreamed he had done , the empires of heaven and earth ; it may well be a notable improvement to fertility of soyle ; if it have discovered the globe of earth , and the path of safety and knowledge in the undiscernable waters , reducing all ports and nations to such points of the compass as the compas directs the mariner by steering to reach , and to know what latitude he is in , and what degree he must make too ; if it have subjected the seas leviathans , and the earths behemoths : yea , leur'd the eagles of loftiness , towring bajazets , and warlike belisariuses into cages of restraint , and straits of nullity ; if it put life into dying and almost extinguished interests , and them recalled to life , and as it were after their interment , suscitated them to their wonted or improved glory , t●●n is it a thing to be encouraged in all , which is the reason that all governments have encouraged industry , as that which has a cornucopia attending it , & that which is most seen in the trade of our late monarchs reigns , & has been most productive of the wealth of england of any thing else , for by reason of it we have europe in a fort in england : now every wast ground is built upon , every incult and over-grown field tilled ; every bogg dreigned ; many parks by the owners converted from parks of pleasure to mines of revenew ( though i am no friend to disparking , where mens fortunes will bear , and their children be provided for without them ) and all this by the industry of man , finding supports therefrom for the increase of people and charges of living , which good and frugal mindes consider , and therefore to it submit ; so that adde to home-industry forein trade , ( which is but the former diversified , and by the changes too and fro , incredibly advantageous to the nation ) and there can be no fertility thought of in a land but england has , which god preserve to us and make us worthy of it ; yea , and may they ever be accounted enemies to all that is good in the nation , that do bear ill will to the industry of it , for they doe , taurum tollere qui vitulum sustulerint , as the adage is . though therefore much might be spoken of the furtherances of fertility from addition of compost to the soyle , or quickning it by marle , chalk , earth , salt , raggs , horn , leather , shaving , and all overflowings , with restings , and lying fallow , and equal to them all folding of sheep , the breed and profit of which has enriched many families to a proportion like that corinthian cydon , who was so full and free ▪ that he kept open house all the year long ; as also by substraction , when the succulency of the mother may be such that it ●●ifles the child in her womb , who is not able to take it off ▪ rank soyles parching up , through inordinate heat and heigth of nutriment , the grain that is sowed in it , or at least running it up all into blade and straw without ear or berry : or lastly by diversion , when it has been worne out by one grain or burthen , imploy it to another purpose , that being prudent in ordering grounds , which is so in greater matters , all things not being alike practicable in all times , but changings in those lesser things being convenient to avoid evils , as augustus did , who in following scipio numantinus ▪ in whose time praetorian cohorts were set up for defence of his person , which after , from being firmamentum imperii , became in lipsius his words , pestis imperii ; i say , though on all these there might be profitable enlargement , yet i contract my self , not to disserve my country , whose glory i am ever willing to advance in prayer , and practise : but to return to the chancellours position , that comparing england acre for acre with any other , it gives place for fruitfulness to no country ; nay , in that it hath those seven endowments which the philosopher makes the glory of a land , . nobility of vegetables . . wholesome fountains and fruitfull rivers . . a benign influence of the sun. . abundance of conveniencies of cattel and other things to the use of man. . pleasantness of situation in the landskip of it , having woods , rivers , springs , meadows , enterwoven . . plenty of healthfull victuals and fruits : and . temperateness of air and climate . it may i humbly think in these and the foregoing respects be accounted fellow to any country in the world ; and this the chancellour intends at least when he sayes it does , ceteras omnes quasi regiones exsuperat ubertate fructuum , ] and adds , etiam suum ultro ipsa profert vix industria hominis concitata , which i take not to be altogether hyperbolick to shew his pathos to his native country , which probably he loved better carendo quam f●uendo , but to have such a truth in it , as , candidly expounded , directs the reader to the true estimate of england , which in no corner , and in no hill almost of it , no not in wales or cornwall , the dryest and steelest parts of it , is void of herbage , but carries a green coat upon it , which breeds and raises young cattel of all sorts ; and by reason of which not the peasantry ( as france terms them ) but the yeomandry and farmers , as we in england call country occupiers of land , are the happiest of any swains in the world ; for whereas in other lands they are shoelesse , spoonlesse , dishlesse , except accommodated with wooden ware , which is the highest of their furniture , those poor labourers being the prime and nobler beasts , labouring to make themselves miserable , and their lords luxuriant , and to them mercilesse . these with us in england ( and blessed be god and the law for it ) while they continue to know themselves and their betters , the nobility and gentry rejoyce to see it ; the yeoman and country corydon is a great proprietor of land ( freehold , and socage tenure of inheritance ) served in plate , attended with servants , cloathed in the best cloath and silks , trimmed with silver and gold , full of money in his purse , and ready upon all occasions to lend on bond , or lay out on purchase ; yea , generous to his wife , children , and family , who eat and drink in great plenty and variety ; yea many yeomen are so gratefull to god and the gentry , under whom they have grown rich and lived happily , that they breed their sons to learning and callings of worship , and having well-bred and well-portioned their daughters , married them into generous families , and unto men whose merits make their way to honour and eminency ; and all this while the yeoman labours little bodily , but looks over his servants , and by prudent ordering the wayes of his family and husbandry , attains great advances in fortune : and i think it may very truely be said , that mostly by this means the yeoman does live more free from care , and give his children better portions then the younger brother gentry , and this he does by god's blessing on his labour from the soyle and the fruits of the ground ; the fertility whereof , to the proportion of the chancellour's expression , is hence in a good degree confirmed , and i think by no judicious man will be , in such degree , denyed . nam agri ejus , campi , saltus , & nemora , tanta faecunditate germina ebulliunt , ut inculta illa , sape plus commodi afferunt possessoribus suis quam arata , licet fertilissima ipsa sunt segetum , & bladorum . having before in generall commended the fertility of the nation , he makes good the lustre of the whole by the dignity of the particulars which compleat it . agri ejus ] donatus and varro derive ager ab agendo , quia in illo multa aguntur ; the learned largely take it for any neighbouring territory to great cities , thus ager campanus , leontinus and the like is read in authours ; but strictly they take it for that place in the country wherein country men live and do country affairs ; and therefore they derive from ager , peragro , peregre , and peregrinus , as one qui multos agros pererrat . the latins make ager fourfold , seminalis , consitivus , pasenus , and floriger , or restibilis & novalis ; our law-language calls open common fields agri , and men that live in remote places with little neighbourhood agrestes : thus in deeds and conveyances , arrable lands in the fields is understood for the common fields , where no mans particular right is enclosed though bounded . campi ] valla terms campus planities terra amplae & grandis , ideo spatiosae plate● arcave , campi nomen acceperunt , and hence is it that geographers when they describe any country that is plain and open , call it campestris regio , i take this word campus as lipsius does promotus and promotio for a pure roman word , and as that is given to one that is famous ob strenua facta multasque cades , so is this term campus proper to vast and roomy places , where there is convenience to stirr and act businesse ; fields to fight in are called camps hence , because the men in them are not couped up , but can fight with numbers and in variety of figures . saltus ] the translator renders this groves , and some think , how probably i say not , in these occult places they did in ethnique times celebrate idolatry , and in that were merrily mad in dancing and capering , not onely to shew their joy to serve their idol , but to sacrifice their activity to the worship of it : hence the scripture tells us of idols in the groves , and david's dancing before the ark in the sight of israel , may be thought to shew , that though he were a king , chr. . yet he would expresse as much of exultation and activity to the service of the true god , as the worshippers of idols did to their false ones : but this is too high a capre from the truth of the word's notation , saltus is a lawn in a park or forest , wherein beasts of venery and chase do shade and repose themselves , and from thence , because hares and harts are saliant creatures and the inhabitants of woods and groves , the woods and groves are called saltus ; thus ovid uses apti saltus venatoribus , and virgil magnos canibus circundare saltus , and thus saltus signifies a great tract of ground , where there is scope enough for the nimble foot of those beasts of chase ; livy tells us of saltus pyrenaeus and saltus grajus , here our text calls the coverts and lawnes of deer , cubile & lustrum eorum , as pliny's words are , lib. . c. . saltus , as much as philosophers mean by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . et nemora ] these festus calls , sylvas amaenas , where cattel feed in the shade , free from the heat of the sun , or biting of the breezes that in the heat sting and disquiet them ; and they are called nemora from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 pasco , because they afford pleasure to the eye in the greenness , and food to the creature who feeds upon the gripe of them ; authours ascribe pleasure to them , virgil , fortunatorum nemorum amaena vireta odoratum lauri nemus ; tully sayes much of these in those words , nemora & sylvae multos commovent ; and the romans when they called that place which they consecrated in the aricine territory to diana , nemus , are thought to do no dishonour to the word . our law accounts nemora woods the treasuries of timber , and though true it be that feeding under them is not sweet where timber over-shadows it ; yet the law does take special care to preserve timber , that is , such wood as is fit for building of houses and shipping , and as the common law makes the unseasonable and unreasonable felling of it , wast , so do sundry statutes for bid it , or at least express how , and how not , 't is to be felled , so stat. h. . c. . made perpetual by eliz. c. . and in regard of the late liberty of destroying and wasting the lusty timber of this nation , there may ( i humbly think ) be very further usefull prohibitions and penalties on offenders added for the future , for our ships are our walls , and of our well-grown , and sturdy iron-sided oak are our ships made ; and if they be wanting , and wanting they will be if providence be not the better steward , what shall become of our trade abroad and our security at home : but because rome was not built in a day , nor is a reformation in the true law-sense effectable presently ; it becomes me to be silent any further then to remember those that have power and opportunity , that this is of no less consequence then other things , which in former times have been made , as is this , penal to misuse them ; aspe-wood was in h. . time used for shafts , the statute of e. . c. . permits patten-makers onely to make pattens of such aspe as was not fit for shafts ; english horses were felony to be delivered into scotland , h. . c. . e. . c. . eliz. c. . bell-mettal , or brass to cast ordinance not to be transported , & e. . c. . sheep not to be carried out of england , eliz. c. . corn not to be transported but upon some cases , eliz. c. . confirmed by iacob . . & carol. c. . leather not to be transported eliz. c. . timber not to be consumed by new iron-mills , eliz. . and why ( god and good men forgive my zeal to englands navy ) should it not be made almost treason to sell timber for shipping to foreiners , or to build shipping here , and abroad to sell them to such , as either actually are , or upon any reason of state may be the nations enemies . but this is a digression , for which i both do penance in my self , and crave pardon of my betters , whose wisdom i do praise god for , and humbly submit to , not arrogantly censure i return then to the text-master's meaning , that is , to the praise of englands fruitfulnesse , even in the herbage under the shades of trees , and growths of timber , which he sayes does not onely keep cattel alive , life and soul together , as we say , but nourish them to a ranknesse and lusty increase of flesh , insomuch that the profit of their feeding equalls the proceed of tillage , all charges considered ; for though these groves should be fertilissima frugum & bladorum , which they reasonably cannot be expected to be , which ly in the shade and under the dripp ; yet so great is the charge of the plough , and so little that of feeding , that there is not in the conclusion much difference ; yea , i believe as great estates have been gotten by timber and grasing , as by tillage , though the law affords great priviledge to tillage , and generally ( i think ) all covenants made against tillage are void , and severall lawes have been made in favour of tillage , that of h. . c. . h. . c. . h. . c. . and others , though expired and repealed by eliz. c. . and iacob . c. . but the common law favours ploughing as the way and means to procure bread , the staff of life , and to nourish cattel for the service of man and portage of commodities : and therefore when in h. . or h. . times tillage was much decayed , i read that great numbers of husbandmen came to the king's courts , offering up their plough shears to him in token of their calling ceased , and they undone , which was occasioned by lords and great mens turning their demesnes , woods , forests , and arrable grounds into pasture , and a very good effect followed it ; for many good lawes came in use which encouraged husbandry , and when the stat. r. . c. . was repealed by eliz. . & iac. . 't was not to dishonour and dishearten plowing , but to release those that had geniuses to higher things then the plough from the rigour of the statute ; since many men may be of a calling for some yeares , who after may be fitter for other things then it : in as much then as that statute tied those that were in the calling of husbandry for twelve yeares not to alter , it was by the eliz. c. . ( as to that ) repealed : but still the patronage of husbandry is in the law , which highly favours it , and that in consideration of six disadvantages that accompany the abatement of husbandry : first idleness . secondly depopulation . thirdly decay of one of the greatest commodities of the realm . fourthly , the destruction of churches and the service of god. fifthly , injury to patrons and their clerks , gods ministers . sixthly , the defence of the land against forraign enemies enfeebled , the bodies of husbandmen being strong for warr. these and sundry other reasons are the cause our law favours husbandry , and so do all lawes and nations : tempore agriculturae nullo pacto agricolae debent molestari ; yea , speciall lawes contra juris rationem , are there to exempt husbandmen , and (a) diodorus siculus reports , that the indians before the trojan war , did use to war without any injury to them : and philo in his book purposely written of it , sets forth the usefull and excellent benefits of it ; and patricius sayes plainly ▪ vnless men will grow too dainty to be of that sex , and will invade the delicacy of females , they ought not to hold themselves too good to be husbandmen , for it is a course of life becoming the most excellent minds , and persons of greatest gallantry have delighted in it : all which , and much more , might be said in commendation of it , if need were so to do , but when it commends it selfe , as it so much does to our bodies , in bringing us bread , and flesh , to our purses , in filling them with money , to our glory , in manning ships and camps . there needs no more to be added then the suffrage of king solomon , who in the person of the preacher sayes , the profit of the earth is for all : the king himselfe is served by the field . and therefore when the chancellour tells us , england has nemora segetum & bladorum fertilissima , he sayes much to the pleasure and plenty of all estates : for , in that the fields are fertilissima segetum , he means there is bread enough , because corn plenty ; for seges is that grain that is ground for bread . et bladorum . ] which is a synonomus word ; bled in the french being thought by mutation of l for r , to be bred our word , which the latins call panis from the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : because it is the all of life , men in distress calling for bread bread for the lords sake ; and hence this word bladum is taken , as seges , for all grain that is makeable into bread , and used as such to be eaten ; not onely wheat and rye distinct , or together called mesling bladum hybernagium , but for all ; as well the former as barley and oats , of which bread usually is made : and may be extended also to beanes and pease , of which for need bread may be made . though , i know , bracton excludes them from herbage , or blade , making them swines food , not mans : for as the best tempered piece of steele is called a sword blade ; and the keenest mettled man a notable blade ; so the best herbage of the ground is called here blade : and of this england is said to be most fertile . includuntur quoque in terra illa pasturarum arva fossatis & saepibus . the riches of englands land is much occasioned by enclosure , not of commons , for truely i question whether that be not within the curse , of removing the antient bounds , and grinding the face of the poor , for whom i perswade my self onely the piety of our princes , and the charity of their subjects ( the quondam proprietors under them , left them free ) but of mens distinct estates , which no one but themselves had common in : for where any had right to enclose without their consent , and leaving them a fit proportion , was forbidden by the common law , and confirmed by the statute merton . h. . c. . & e. . c. . which , though it gave leave for great men to approve against their tenants where they left them sufficient common of pasture , yet did not enable them to enclose as they pleased ; for if they leave not sufficient common in the residue , the commoner may break down the whole inclosure ( saith sir edward cook ) because it standeth upon his ground , which is his common : the same law of preserving tenants right , as indulging lords in point of inclosure is reserved by the & of e. . c. . and by the eliz. c. . persons undertaking to dreyne marshes , and keep them dry , must be by approvement made between the lords and commoners of those marshes and the undertakers : and when burwell in king iames's time did winn and inn the marshes of lesnes and faunts in kent , that were drowned , he was faine to agree with the lords and owners of the same surrounded grounds before he could do it ; so sayes the statute iacob . . & c. . these all shew that the texts includuntur is not inclosure of power only , but of law ; of right rather then might : and this so done enhanses the common profit of the nation , and the particular profit of the owner ; because it makes dry and leane grounds well fenced and fat . pasturarum arva . ] that is , by having cost bestowed on them ( which when they lie open the owners will not ) to become lusty and succulent , and by being delivered from the constant harrass of the plough , which rips up the heart of them ( for arva comes from aratrum , whence ambervales hostiae , because offered for the fields , our harvest quasi arvi festum and their arvi-pendium ) become walks for feeding of kine and beefes : for that which varro calls arvum agrum necdum satum , our chancellour terms pasturarum arvum ; ●eeding , or pasture grounds : so bracton uses the word , est enim communia in eo quod dicitur pastura de omni quod edi poterit vel pasci . fossis & sapibus . ] hedge and ditch is the word of our law and instruments of conveyance , which some books call defensa , and we at this day in some places , fences ; which , as every owner is bound by law to keep , so , being sufficient to break thorough them , and lay open any mans ground is a trespass , and an action lies for it : the statute of mar. sess. . c. . made the casting down , or digging the pales , hedges , ditches , or other enclosure of any park , or other enclosed ground , by the number of twelve or above to be felony ; but the eliz. . limited it only to the queens life , and untill the end of the parliament then next following , but the trespass still remains for breaking fence , hedge , or ditch , the conveniences of which mures or inclosures to pastures the preamble to the iacob . . incomparably sets forth ; and the iacob . c. . as to parks , makes penall ; for as walls and fences military are reckoned inter sacra , and they had their fossae interiores & exteriores , within , and without to keep the enemy from assault , and when he had got the wall , to keep him , yet at distance by the inn-ditch , so did the wisdom of antiquity to keep cattell safe from prey of beasts and thieves , secure them by inclosures fenced and ditched , which is the signification of the word parke , from the french parquer , to enclose . desuper arboribus plantatis quibus muniuntur à procellis , & aestu solis eorum greges & armentae . as mostly the hedges are of quick which keeps the fence thick , and the bank strong , so in the quick are planted trees of all sorts , but chiefly those that beare a great leafe , and give a good shade , timber trees , oake , elm , ash , and though sometimes apple , pare , crabb , as in hereford and worcester shire and in kent the garden of england ( yea sparsim every where ) yet generally the other , because of the lop-wood , whereof stakes , gates , and other things may be made , as well as the cattell defended by the shade of them . these trees , they are not said nasci , but plantari ; ( for thornes and briars are the earths aborigines ) trees are planted with the art of the hand and care of the eye , yea , and to the comfort of the heart of the planter : thus the good man is likened to a tree planted by the rivers of waters , his goodness is from his plantation ▪ a noble vine he is because god made him a noble vine . thus god is said to plant his church for a vineyard , wherein his ordinances produce liquor of life to penitent and prostrate sinners , and that upon this ground that he hath planted it to that end , to binde up the broken heart , and to speak peace unto the captives . whereas then our text sayes , arboribus plantatis ] it means trees purposely set to answer the owners end , in the hedges ornament , the cattels umbrage , and the lopps profit . quibus muniuntur à procellis & aestu solis eorum greges & armenta . this shews the end for which culturage had this care and defence raised about it ; as the ships that carry rich merchandise have gunns aboard to defend their lading ; and castles that have the commands of countries , have all military habiliments to preserve and carry on their designs and interests ; so the field having its riches , corn and cattel , has not onely hedges and ditches to prevent beasts forrage and swines rooting , but trees shelter for the cattel against heat and cold . greges & armenta ] these words comprehend small and great cattel , the gregary creatures are properly sheep and goats ; these are the flocks to which our lord alludes in those words , fear not little flock , meaning these , who are commanded to be milde , passive , and tender spirited : the armenta are such as are called majora animalia quae arationi destinuntur , such as are cowes , oxen , asses , deer , and swine , are said also to be in herds , the evil spirit went into the herd of swine : now both these sorts , though they have pelts well covered with wool and hair , yet are sensible of extremes either of heat or cold ; and because the oppression of nature by either hinders the frolickness and vivacity of them , whence the thriving and fatning of them comes , therefore experience prepares remedies for both those inconveniencies , which the text calls muniuntur , ] a term applyed to any defence : in some authours , letters credential , or certificates , whereby men unknown are testified to be what they are , are called munimenta ; sipontinus sayes , munire is as much as fortificare , praeparare , 't is to adorn and furnish them against the time of need and trial , for as bare walls make giddy houswives , so open fields without shelter makes but lean and thriftless cattel , that look as a man , that would be resolute , does in tacitus his words , contra pudorem se munire , and as brave commanders doe secure their charges by watches and guards obstructive to the treacherous enemy ; and as innocence endeavours muniri & ornari bonorum omnium praesidio , as (a) tully's words are , and as bodies alive are (b) munita contra avium morsum , whose carcasses when they are dead they worry and snap at , so are cattel great and small , by shades from winde and heat preserved , and this shelter is termed munimentum . a procellis ] this is vehementior venti impetus sed non durans , most an end in the sea rather then on land , a cold blast we call it , because it carries all down before it , and shatters all that is near it ; a tempest , which , because of the terrour and havock it makes , is by silius called immanis , by seneca , insana , tristis , by catullus , turbida , whence not onely the violation of peace by insurrection is termed procellae , but all things of terrour expressed by it , aequor procellosum in valerius , and venti procellosi in livy , yea nati procellosi in ovid , all to shew the unpleasing nature of cold and bleak airs ; which therefore are called procellae , from celes that nimble courser , who flew like the winde , and denotes such a sharp blast , as not onely makes the beasts to quake , but wets them to the skin with the rain that accompanies it . et astu solis ] as trees are defences from cold windes , so from sultry heats and accession of vermine which vex and bite the cattel , for as digestion is fortified by an equal proportion of heat and moisture , so the temperament of cold and heat in weather is contributive to the feeding of cattel ; and therefore as in hot countries men in the day keep their houses and take their serenato's and refreshments by the umbrages they make to shelter them from the fury of the heat , so doe provident husbands prepare for cattels conveniencies to cool them , by interposing some natural or artificial defences from the sun , for the heat of the sun does not onely partch the hide and skin , but exhales the natural heat and disperits cattel , which is the reason that our text speaks of trees planted not onely to defend cattel from the cold storms , but also from the suns heat . ipsaeque pasturae ut plurimum irrigatae sunt , quo infra earum claustra reclusa animalia , custodia non egent per diem nec per noctem . these are the feeding grounds , wherein the milch kine for daries , and the oxen and cattel that are for the shambles , feed ; and as they are called pasturae à pascendo , so in other books * oxgangs , these , as they are rich and from the spring of the ground , afford a good gripe ; so are they fitted with springs or standing ponds of water , which are as necessary to make cattel thrive as the grass they bite or the hard meat they chew ; for as meat goes down with men like chopt hay ( as we say ) when they have not drink to it , so is it with cattel thriftless dyet , where the throat of them is not cooled , and the passage cleansed by water ; this element , of all , is that which cattel rejoyce in , and the residence of them is by the waters ; god when he planted eden , made it rivery , it had limpid streams issuing from it in abundance ; and the patriarchs , when they seated themselves for accommodation of their cattel , respected waters as the great convenience of their imployment ; in gen. . we read of the waters of gerer , and the herdsmen contending with iacob's herdsmen ; in exod. . , . of iethro's daughters , and the servants that watered their father's cattel , and where-ever in scripture pasture is mentioned , water is spoken off , or at least presumed near : and the text here calls this accommodation of water , irrigatio , irrigatae sunt pasturae , where irregare is as much as adaequare , quasi aquas in agrum aut hortum per rigationem deducere , thus tully (a) uses the word waters in plenty , as nilus overflows egypt ; authours use this word to signifie number , thus plautus sayes of one , he was homo irrigatus plagis , and (b) pliny expressing cruelty , sanguine irrigari , and seneca , genae irrigantur assiduo rore ; and irrigua aquarum are those lanches by which waters are let into grounds to overflow and fertilize them , so that these being in grounds , answer the requiries of cattel , both to cool them within , and make their food go down cleaverly with them , yet it saves them the labour to be driven to water , which wastes the body of cattel , and often chafes them ; besides by reason of this the charge of looking after them is lessened , for , they being able to water themselves when they have a minde to it , a little looking to them once a day is all they require ; yea by reason of both the ditch , hedg , and water , they need no watch , or at least lesse then without them they would . nam ibi non sunt lupi ] the wolf is a terrible creature , heretofore frequent in england , or rather in wales , where edgar , a prince of happy power , is said to lay on the welch a charge of . wolf-skins a year , in token of tribute and dependance ; to the performance of which , he gave liberty to the welch to chase them into any part of england . they are a kind of wild dog , savage and crafty , enemies to sheep and all creatures of mansuetude ; in relation to which ferity of nature , they have the characters of acres , avidi , asperes , cruenti , and by reason of these , the flocks of england and they , were never cater-cofins , as we say : but the love of the nation to the sheep preponderating , the wolf went to the pot , which is the reason that wolves are destroyed . the savageness therefore of this creature , as it caused the eracing of them here , so did it make them abhorred every where ; the adage insinuated enough of the fatality of the nature of this beast where a victor , before a precipice , behinde wolves : and therefore , though our flocks in england have not shepherds so fierce as those of agla , who will with their crook and sling persue a lion and make him leave his prey , which gave rise to the adage , which is called a man of feare and faint-heartedness ; timidior leonae aglae , yet our sheep are secure from this , that with us there are no wolves ; and he that seeks wolves here must (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , make account to seek what he shall never finde : for so safe are our flocks , that unless they straggle , or are for corporall food , or to make money of , stollen , they will be forth-coming . vrsi nec leones . ] as no wolves , so no beares nor lions ; those beasts are in the extreme parts of the world : beares in the northern climates , lions in asia and africk ; some have said we have had , though no lions , yet beares breeding in england ; but gesner denies it : though in the northern parts of europe he allow some to have been , yet not in england . but we have had wolves in sheeps cloathing , beares and lions in mens shapes ; we have had a generation in it , who , like the caffares of mosambick , fyled their teeth , as sharp as needles , to bite asunder the gordian knot of government , so that of late that of aeschylus is true of england , here was a fountain of all evill opened : and though our flocks in the field have been safe from wilde beasts , yet not the flocks in the church from scism and heresie ; nor the flocks of humble and innocent subjects from violence , oppression , and what not , that was clamourous to god for vengeance , and to men for patience and prayers : no age of england ever knew such truculent spirits in manhood as there have been lately amongst us , whom god deliver all peaceable subjects from : but i return to the text. quare de nocte eves eorum incustoditae in campis recumbunt in caulis & ovidibus . ] the law watches the sheep from the stealer , whose act is felony and death ; the terrour of which , if it keep the thief off , the flock feeds quiet . for , though the night be the season of prey , because they that are wicked , are wicked in the night ; yet the night is secure even to the sheep in england : the sheep of all creatures is a harmeless creature , that for a beast , which the dove is for a bird ; and it has no forecast for it self , which aristophanes notes , in that he calls the life of a simple negligent person 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : yet the sheep is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a golden fleece , a rich and profitable creature , his flesh good for dyet , his wooll for cloathing , his fat for tallow , his horns and hoofs for soyle ; and this beast has this quality , that he will wander and straggle , if he be not kept ; and though he have 〈◊〉 force to repell danger , yet has no foresight to avoid it . therefore the use is , to keep the sheep in the fields , in caulis & ovilibus ; that is , in such pens and prisons , that they shall not straggle in the night , and be taken up as nigh-ramblers are . caulae . ] is a repository for sheep , where they were kept safe from injury , a kinde of denn , or under-ground lodge , wherein ( before the finding out the use of building above-ground ) they lodged them . servius terms them munimenta & septa ovium ; and generally any refuge of security to sheep is called caula . ovile . ] is the same under another name , properly this was a place in the campus martius , figured like the penns of sheep , open lattesses , in which the romans stood , and thorough which gave their suffrages ; citatis centuriae senioribus datum secreto in ovili cum his colloquendi tempus . t was concerning choice of a consull to make head against hanniball . ordinarily the ovile is stabulum ubi oves stabulantur . quibus impinguantur terrae eorum . ] the folds and pens are not onely the security of the sheep from stray , but the fertility of the ground , which their dung adds to , and invigorates : for as the sheep-walks are most in those countreys that are champaign and arid , so are the grounds helped against their naturall sterility , by those foldings of sheep , the soyle of which is not only very succulent and productive of corn and grass , but avoids great charge , which otherwayes those remote grounds and barren would occasion . so good and wise is god in the work of nature and providence , that he has appointed every thing its station , and given a compensation to every defect , and an alloy to every redundancy . deep and fat soyls , that need no soyling from sheep , are not proper for breed of them , though for raising the bodies of sheep they may be ; therefore the breed is in hungry and lean grounds , where the corn-fields are madefyed by their foldings . vnde homines patriae illius vix operis sudore gravantur ] this is onely to be understood candidly , that england is no iron flinty soyl , lying under the perpendicular of the curse , bryers and thorns onely to bring forth ; but it is a full and free soyl , on which the tiller lives as easily , and from whence he has as comfortable support for himself and his family , as any nation in the world yields its inhabitants ; and because the feeding of cattel is more advanced by prudence and care , then by toyl and labour , our text sayes , the country man , vix iudore gravatur , that is , his flocks yield him profit when he stands still and lyes down by them as they feed : but this is not the condition onely of country-men , their lives are divided between the plough and the flock ; some there are that in some places wholly stock their grounds with flocks , but alas this land has not many parts of it so fitted to it , but that even there are many ploughs jogging also . it 's true indeed , i believe england is the richest in flocks for number and goodness of any island in the world , and men we have had , whom reports have made incredibly rich in sheep , as that ancestor of the lord spencer , whom same speaks ( as is pretended , but with what truth i affirm not ) to be by record in the tower richer in cattel then iob ; and that l. cheyncy owner of one of the islands in kent , either sheppey or thanet , who being in france , and laying a wager with the then king of france of . l. and when the king asked whether he was able to pay it if he lost it , he replyed , that his sheeps tayls in the isle should pay for it , and reported they are to have been of that value . i say , these and other instances may be produced of men very rich in sheep , but that thence england should be made onely a sheep-walk , and the ground rendred such , as yields fruits and profits without labour , is more a noble character of the chancellour's love to his native country , then that which can be made strictly good ; that it is a brave soyle , and that sheep abound in it , is true , so is the assertion , that men are as soon made rich by the standing of sheep , as by any thing , but that sheep are gold to all , and that all parts of the land are proper for sheep , is not inferrable hence ; though truely i think ( but ever with submission to better judgements ) that breeding sheep , and tending flocks is not onely a gainfull , but a very divine patriarchal course of life , and those that follow it have in a kinde opportunity spiritu vivere : for besides that the care of flocks is in philo's words the tyrociny to state-government , and that the minde is exercised more in intellectual acts then corporal ones , gives the opportunity to meditate and dwell more at home then other callings permit : thus iacob is said to go out and meditate in the field , which probably was to read and contemplate while his flocks fed , whereas in the occupation of the plough , no longer is there thrift then the plough joggs ; whereupon the statute of r. . c. . calls handicrafts , easie occupations , and going to plough and cart , laborious occupations ; for though in such soyles as babylon and the sybarites country , there be , , for one , as pliny tells us ; or truer , , and some fold , which our lord alluded to in that matth. . yet in most countries there being tougher soyles and less increases , the toils of husbandmen are great , and their wayes and manner of life scant , narrow , and full of hardship , which makes the poorer sort of people , born and bred to misery , take to that , as the calling which is most suitable to their mean birth , breeding , and spirits , for by hard labour , constant tugg , and incessant vigilance , they do 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , rifle the monuments of natures riches , for the gain that arises by the crop on her , which when they attain , they have what they expect in compensation of their diligence and charge , when as in the pastoral life there is not that pain and trouble required . whereas then the fathers of old , and our fore-fathers are said by our text , spirita magis vivere , and greges malle pascere quam animi quietem agriculturae solicitudine turbare ; our chancellour is to be understood , that england was ever very rich in sheep , by reason of which , our cloathing is the worthiest and richest commodity of this kingdom ; and divide our native commodities exported into ten parts , and that ( saith sir edward cook ) which comes from the sheeps back is nine parts , in value of the ten , and setteth great numbers of people on work ; which considered , as pests and rots of sheep are a great chastisement of god , so are all things that depreciate the wools and cloathing of our nation to be cautioned against : by e. . . none were to weare any cloath but such as is made in england : and c. . no cloaths made beyond the seas were to be brought into the kings dominions ; but this being thought hard , was by h. . c. . in part repealed , and by iacob . . in generall words ; by the e. . c. . the weight , goodness , and sale-place of wools is appointed , confirmed by r. . c. . h. . c. . e. . c. . h. . c. . eliz. . yea , and when the florentines and other natives came into england , and made clothes of ray , there was by the e. . c. . the measure and assizes of them set down , which was repealed by & e. . c. . but yet the more precise goodness of later and more usuall cloathing specified ; and by e. . c. . the length and breadth of cloths made to be sold , is limited ; and no cloaths wrought beyond the sea are to be brought into this land : and since henry the eighths time , when the new drapery was brought in , more acts have been made for wooll and cloathing then ever before . from all which i collect the great concernment of the sheep , and proceed of them to this nation , which is the cause , that the chancellour supposes men that have so much leisure , as the sheep-masters of england have , whom their flocks make rich , without their constant corporall labour , more probable to abound in exercises of their mindes and understandings , then other people , that are more harrassed , and so are less masters of reason : thereupon he sayes , as it follows , ex quibus homines regionis illius magis redduntur dispositi ad discernendum in causis quae magni sunt examinis , quam sunt viri qui telluris operibus inhabitantes , ex ruris familiaritate mentis contrahunt ruditatem . this illation seems to have some weight in it , for though the temperature of the aire do contribute much to mens complexions and constitutions , and thence to their virtues and vices ; by reason of which the greeks are termed light ; the africans inconstant ; the germans strong and valiant ; the italians grave ; the spaniards proud ; the french fiery , and so onward . though , i say , the milde climates producing , by moderate influences , temperate and wise mindes in men , may , in a good sense be accounted the externall cause of mens fitness here with us in this moderate zone for judicial affaires ; yet can it not be denied but that education and ingenuity of calling , wherein men have leisure , and helps to polish their mindes , is a very notable furtherance to intellectuall plenitude : and hereupon this land having so much of advantage reflecting on the inhabitants of it , from its plenty , and the ease of many gainfull callings in it , may well be called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as herodotus words are , a most blessed island ; the men whereof , as of a countrey blessed by god , are not dull greeks , rude arabs , riotous muscovites , fiery goths , barbarous vandalls , gluttonous danes , no nor light airy braves , but sober , stanch , resolute , apprehensive men ; fit for the field , for the court , in peace and war , jest and earnest , ferious and trite things : and by reason of this advantage of their mother-aire , and the attendants on it , they are in our chancellours sense native statesmen and justicers , having a kinde of constitutionall judiciousness in them , resulting from the liberty of their lawes , and the enfranchisement and heroising of their spirits thereby ; and that not only in that single act of selfe-preservation ( which men of anaexarchus his temper , who was philosophorum omnium adulatorum abjectissimus , thrive by , when such as calisthenes , though they have ten thousand times the merits of those flatterers , are ruined by plain-dealing ) not only , i say , are english men wise in that of promoting their own particular interests , but in rebus magni exanimis ; such as are triall of life and estate , actions of promise and contract , projects of combination and forgery ; the cryptick and hellish secrecies of treason , rebellion , murther : these , though buried as it were under ground , doth the sagacity of an english jury follow , and pursue to their subterraneous caves , and un-litter those kennells of villany and mines of poyson and rancour that are brewing in them : and this they do , by an ingenuity and naturall endowment , which the text termes in them , magis apti & dispositi ; which , though i do not believe , in the astrologers sense , is by pure influence of the stars and energy of conception , yet i may think arises from some benignity and largess of god , according to the receptivity of the soul , and the concurrents of other appointments , which , i think , is the sense of those that hold unam animam in naturalibus esse alia excellentiorem & perfectio●em ; though perhaps it do thwart the opinion of st. thomas hales , and others , who determine animas esse aequales . for , since we see there is in the souls of men degrees of ingeny , whence it should come but from a prelation of endowment , i am not able to determine , nor do i determine any thing , but leave it sub judice , only in that our text sayes , magis apti & dispositi , it asserts a priority in some to others , and this consists much in a fitness of the body to the soul ; for , as a gun unevenly boared , and not cleverly mounted , will shoot at random , though it have the best powder and marks-man imaginable ; prick out the rarest notes to a songster , yet if his voice be naught , the musick will not be delightfull ; lead men never so puissantly , yet if the men lead do not follow on , no battell is well fought , or day bravely got ; so let the soul be never so divine and wise , yet if the body mated to it be dull and stupid , the incorrespondency will destroy all the precellency that is not answered by the other part of the quire , which is the harmony of body and soul. so that by apti and dispositi the chancellour intends the fitness and towardliness of men to great imployments , aptus est qui convenienter alicui rei junctus est ( saith tully ) and virgil , axem stellis ardentibus aptum : criticks account this verbal very large in its signification , comprehendere vinculo they called apere ; and muret , in giving the description of its contrary ineptus sets aptus amply forth ; he that sees not what the present time requires to be done , or he that is impertinent in saying or doing what were better unspoken or undone , forfeiting his credit with those judicious persons , who are witnesses of what he sayes and does , he is ineptus , a fond man : therefore in all good authours the word aptus being the avoidance of the prementioned extreame , is used to significantly express any thing ; so (a) tully applies it to cat● , of whom he writes , nulla aptior persona quae de illa aetate loqueretur ; that is , accommedatior & convenientior : none more proper for that work then he that was so grave a man. so apta compositio membrorum , apta & cohaerentia , apta verba ad latinorum consuetudinem , aptae ad stabilitatem commissurae & adactus finiendos accommodatae ; so aptus esse & decere ; so celsus has aptus curationi aeger ; and pliny , his aptus alicui rei ; and quintilian , animi apti ; yea , all authors equae aptae , color aptus , tempus aptum , verba apta joco , umbra apta pastoribus , apta arma , and therefore t is well here matched with dispositi : ] as in other authors , aptum & ratione dispositum ; and dispositi in turmas ; so livy terms wise counsel's disposita in omnem fortunam consilia : and pliny calls sabinus , liberalis vir , subtilis , dispositus , acer , disertus . by all which the chancellour applying apti to his country-men , makes them not men whose heads are in their heels , and when they are driven to straits , cry out bemoaningly , as he in aristophanes did , that his minde was shut up within his skin , and could not appear to do him credit without the memento of a lash : no such dull figures of manhood as deserve the taunt plautus gives the servants of his time , dead beasts chastise living men ; no such inelegantiores lebethriis , as the (a) adage has it , are the freeholders of england ; god be praised they do not labour under that mentis ruditas which other common people ( whose spirits are suppressed , and their breedings mean , because of the tenuity of their conditions ) are unhappy in , and contemptible for ; but as god has given us of this nation a pleasant land , a free law , and a plenary discovery of his gospel , so has he endowed the nation with that tillage and culture of breeding , which has polished all the rudeness of their mindes into a smooth and amiable oriency ; so that if we do not sin against our light , and provoke god to intenebrate us , there are mercies enough upon the nation and the people , to force from our neighbours the confession , that god has made us the head and not the tayle , and that 't is not onely better with us then we deserve , but then with any our neighbours : and i never fear any reverter of us to this , that is here called , rudet as mentis , till we wilfully shut our eyes against the light , and harden our hearts against god's fear , which if ever this nation should be guilty of , we may again , as the angles , picts , and british did before christianity , mentis rudìtate gravari . 't is a dangerous thing to give way to reigning sins , either in a nation or person ; in the history of france there is a notable story of fredegund the fair wife of chilperick , who suffering her self to be courted by landri de la towre , at last grew so enamoured of him , that she was impatient to be without him ; chilperick riding one day a hunting , went up , just as he was going , into his wives chamber to complement her , and finding her combing her head , being behinde her , tapped her most softly upon her head with his rod , she thinking chilperick had been gone , and it had been landri , replyed , a good knight should alwayes strike before and not behinde , the king understood the meaning and went sorrowfull away ; but she , finding her self overshot in her tongue , plotted her husbands death , which her paramour and she brought to passe , and a miserable woman she became . but this rudeness of minde not being the unhappiness here meant , but a progression of misery beyond it , i prosecute no further , but return to the text. regio etiam illa it à respersa , refertáque est possessoribus terrarum & agrorum , quod in ea , villula tam parva reperiri non poterit , in qua non est miles , armiger , vel pater famelias , qualis ibidem franclaine vulgariter nuncupant . by this the chancellour persists in the commendatory description of england , as from the fertility of its soyle , so from the plenty and splendour of its inhabitants ; for whereas amongst the romans and germans their villa were onely granges and sheepcoats , where their drudges kept cattel , tended vines , and sowed grain to furnish the great men that dwelt in cities of concourse , pleasure , and business ; whereas the country seats were mopish and dull , rude and uncompt , and men used them more for profit and necessity then pleasure and choice , in england every corner is so thwackd with inhabitants , and so orderly disposed , that 't is not onely possible to finde men of office and honour in every ville , but impossible almost to finde any ville without them , there is such plenty of them as if the land were sown with them , so that one would think they could not live each by other , and so are they verging each upon other , that corn , thrust down in a bushel , packs not closer to make the weight of the bushel more , then they do . the chancellour looks upon england as a land of tissue , so embroidered with nobility , gentry , and land-owners , that the ground is by them over-laid , and the lustre of it occult ; here mettal upon mettal argues the richness of the bearing , for the mettle of the ground causing mettal in the purse of the possessor , makes every villula bear a knight or esquire , or master of some free-hold . so that the name villa being roman ( not so eminent as the law of the twelve tables ) the roman sense of villa is yet unforgotten , though somewhat advanced by time and transplantation ; amongst them their villa was ¶ domus extra urbem adificata cum omnibus aedificiis , quae non pecora solum armentaque recipere possent , sed etiam omnis generis artifices & familiam , to which varro lib. . de re rust. and pliny accord . * varro sayes it is so called villa , quod in ea convehantur fructus & evehantur cum veneunt , and hence comes the word way quasi veha , the passage on which carts go too and fro : this was called pagus also from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 fons , because it was usually in loco paludato , for that neither man nor beast thriving without water , ancient granges and daries were commonly seated low , where the defences from storms are most , and supplies of water and rich grounds best . the roman authors make three properties of a villa ; . that it contain room for the master and lord , that 's as our mansion-houses , or ha●●●nights , as we call them , were or berries , or places . praetoria , such were cicero's tusculum and ac●handus the son of cafirmianum , from whence our term farm perhaps may come , or budaeus●●emies ●●emies ( ala in anum , on these the romans bestowed great costs , ampla & operosa praetoria gra●● band , augustus ; villas videlicet quasdam elegantius & sumptuosius extructas , saith suetonius ▪ and of caligula , in extructionibus praetoriorum atque villaerum omni post habita ratione , nihil tam efficere concupiscebat , quaem quod effici posse rogaretur ; and of hadrian 't is written , tiburtinam villam mirifice ex aedificavit , ita ut in ea , & provinciarum & locorum celeberrima nomina inscriberet , lycaeum , academiam , prytanaeum , canopum , paecilem , tempe vocaret , as desiring by sight of their names , to be put in minde to contract the single rarities of them all into the ornament of his country seat , and as it were , palace of pleasure . . the second appendix to a roman villa was humiliores ac potius casae quam domus in quibus pecora erant , & familia servique habita , aut qui opera faciebant rustica , to which cic. alludes , when writing to his friend , he calls this , villula sordida & valde pusilla , of this varro lib. . c. . de re rust. so horat. serm. si vacuum tepido caepisset villula tecto . and from this part of the villa arises the word villains , who were omnes villae adscripti & coloniari conditioni addicti , these were ever to be at their charges and never to be off their labours , unless in their lords service , or to tend his cattel or commands . . the third part of their village is pars fructuaria , their store-houses or granaries , in which they repose and stow all their fruits that from the ground they gathered , for the husbandman or swain was but to labour to sow , reap , and bring in or gather the fruits , when once that was done , the lords disposed of them , to which columella referrs , nec tamen instituendo villicam domesticarum rerum villico remittimus curam , sed tantum modo laborem ejus , adjutrice data levamus . these were the three parts constituent of a villa , and these every villula , or mansion-house in england has ; the mannor or lords repose , the farm-house or baylywick , where the bayly and hindes are , and the cattel both oxen and horses with the dary is kept , and the barns and granaries where the fruits lye , and out of which they are by the bayliff delivered by tale , either to the officers of the house for their respective expences , or to market for exchange of money , wherewith to buy other necessaries for the lord and his family , and to defray the wages of his menial servants and day-labourers , together with his sports , travels , and other pecuniary disburstments : yea , so has time bettered these rude and thin-carcassed cottages , from what they originally were , that from being clamped with clay and headed with heath , neither capable to keep out winde or rain , they are now generally well built and notably covered ; yea , often adorned luxuriantly , and that to encourage the tenant to pray for his lord , and the servant to labour truely for his bountifull master , under whom he lives in comfort and plenty . so that our chancellour in this clause highly extolls the opulency and pregnancy of englands treasury , which is not onely many in inhabitants , but mighty in wealth and abounding in conveniencies , not onely of life , but for state , distinction and ornament , that , as england is the phoenix nation , so every villula and hemm-breadth of it is so digested , that it seems to be a little common-wealth , a model of the national government . for whether the romans here placing their colonies in the british towns , and having their villae in the country , or whether from a native british origen i know not ; no villa ( i mean not in the large sense which equalls it with pagus , vicus , arbs , but in a restrained sense , for a neighbour-hood or small conjuncture of houses ) but has a system of politick government in it , the civil magistrate , the lord of the soyl , who has from the crown , or other great lord ( who from the crown holds it ) dominium soli , all regalities and perquisites , or such of them as the king excepts not to his own use ; such are jurisdiction and profit of courts for trials of offences capital , criminal , or at least trespasses and actions within the mannor , escheats upon felonies , or other accidents , custody of infants and lunaticks , power of passing estates and admitting tenants , reliefs upon death , hunting , hawking , fishing , and the like : the church-magistrate , the parson , vicar , or rector of the church , who has , sub episcopo , curam animarum , and lives de proprio , the church-glebe , and the tithes and church-book profits , for which he is by the law to reside , and to preach , instruct , reprove , and inspect the people , that they perish not for want of knowledge and faith , which comes by hearing the word , which he is constantly on lords dayes , and other dayes if need be , to preach , and that their knowledge may be sweetned to them in the bloud of christ , which he is to offer to such of them as present themselves for knowing and worthy receivers at the lords table , and he knows not notoriously ignorant and scandalous in their lives . the officers both civil and ecclesiastical ; constables , and headboroughs to keep the peace , and to prevent frayes and unneighbourly fudes , and to secure offenders to publick justice , and to lead men , if need be , to defend themselves against unlawfull assaulters , and predatorious insurrections against them ; and the church-wardens and side-men to see the fabrick of the church kept decently , and to receive and pay the incomes and expences of it , and to answer for it in all cases wherein it shall come in question , who , together with the overseers of the poor , take care for persons impotent , sick , poor , aged , orphans , and other objects of charity , that god be not provoked by neglect of them to deny his blessings to the fruits of the ground , and revenues of the parishoners , nor the religion and polity , under which those poor souls are bred and live , be evil spoken of , as inoperative , dead and lifeless as to works of charity to men , as well as piety to god. now because this resemblance of the national government in every seigniory collated a dignity and ray of grandeur to those lords and gentlemen , whom the kings of this land ( from whom all lands and jurisdictions originally moved ) dignified and priviledged by chartar , to reward their service , or encourage their loyalty for the future ; therefore the chancellour does not content himself to write , that many such knights , esquires , and freeholders there are , but terms england in all parts , and in every villa , respersa refertaque , words that signifie plenty which way soever we look . respersa ] respergere is as much as circum circa spargere , thus tully uses it , quum praetoris nequissimi inertissimique oculos praedonum remi respergerent ; and sanguine respergere dextram is in catullus , and mero respergere tergora is columella's phrase , so iuvenis respersus caede fraterna in catullus , and manus respersae sanguine in cicero ; and pliny notably tells us , that the flighs of birds go in numbers , respersu pinnarum , or pennarum hostem obcoecantes ; and referta ] the other word , is a word of accumulation , noting plenty , stuffed as full as full can be ; so cicero to his brother owns the receipt of his letters , together with caesars also , refertis omni officio diligentia & suavitate , and in other places he mates plenus and locuples with refertus , which sets forth the chancellours meaning , to shew that england is a land close-packed with inhabitants , so wedged together , that a man would wonder how they set their horses together , especially when they are so potent and rich , not onely as they are possessores terrarum , ( for so in a large sense occupiers or farmers of land are , during the terms of which demised to them they are paying their rents and performing the annexed conditions possessers of the lands so demised ) but as they are possessores proprio jure , en son proper droit ; as onely those are whom he expresses by those words , miles , armiger , paterfamilias . miles ] of this i have written in the notes on the . chapter . that which i add here , is , that the chancellour meanes not this in the large sense , as every souldier is capable of the title , but as only honorarily it is understood , as they are dignities , bestowed by the sovereign on men dilecti & electi as they were , not onely the choice for vigour of body , being florentioris aetatis , but as they were men of fortune and interest , who were fit to be senators for counsell , as well as champions for conduct ; and hence of old called ritters , that is , servatores or saviours , eo quod virtute & fortitudine servent patriam ; by reason of which , what donaries , largesses , and priviledges these equites or milites had , the roman stories every where tell us , especially learned lipsius , who spares no cost of time and judgment to illustrate their militia , and all the parts and premium's of it : these knights , as we call them , were then very honourable , the carians called them alabandi , from alabandus the son of careus , who obtained , on horseback , a famous victory for them over their enemies ( ala in their tongue signifying a battle , and banda victory ) whence probably our term band , for a company of warlike men ; and the nationall standing forces in m. paris , civilium communiarum legiones , are called trained bands : and the germans , in part our ancestours , were wont to call antiquae nobilitatis principem praepotentem banderum , which might be seir ( though with some alteration , as the badge of time ) to the word bannerer , and banneret , a degree of knighthood more eminent then the bachelour , though that being done ictu gladii , seems the more natively military , and catholickly honoured : much here then might be said of knights , as that they ought to have those six qualifications which casanaeus from acursius mentions , that they are to be men of fortune ; and that none but such ought to be in their places to parliament , to serve coroners , or on assizes , as proto-jury-men . that none were compellable to knight-hood when the law was such , but those who were claro loco nati , or gentilhommes de estate , and had l. a year ; nor to just and perform manly actions , but such as either were actually such , or stood candidates upon their emeriting such to be : these who by service , tenure , fortune , courage , were able and willing to serve their king and country : of these i could write much , but the incomparable m. selden has prevented me herein , and so has sir william segar , and others , whom i refer the reader to , as also to the statute of h. . c. . which sir e●●ard cook writes of , on the statute e. . de militibus ; for , this honour , however in times of peace , t is given to reward riches honestly gotten , and learning industriously acquired : yet , in the native rise of it is purely a brat of the field , and the fruit and reward of hardship in , and victory after the encounter with an enemy . and those chains and neck-jewels which knights and their ladies , as an honour , defluent on them ( vxor fulget radiis mariti ) wear , as tokens of respect , were at first remunerations of valour , and that as it were by direction of the light of nature ; for even among the caffares , or black people of mosambick , nothing is accounted so honourable as to kill enemies in battell , and every man they took and killed they dismembred of his virilia , and after they had dryed them , to preserve them from putrefaction , then they carry them to their king , and before him spit those out of their mouthes at his feet , who commands them to be gathered up , and given to them again , and ever after they are accounted as knights ; and these privities they string , and wear as collars of ss . at publick feasts , marriages , and meetings : yea their wives wear them as carcanets of jewells . the consideration of all which amounts to the honour of our chancellours reason , in alleadging england to be a rich country , and the free-holders of it fit for matters , magni examinis , because they are men of blood , wealth , and honour , and no ville but has such in it , the chiefe whereof are milites . armiger . ] this originally was a title of service , by standard-bearing to lords , and great cheiftains , and thereupon in some books armigeri & servientes are joyned ; so , when the french king understood that our henry the third would assault him in poict●w , he prepared a great army of knights , notably prepared , and of esquires and attendants to the number of . these were called also scutiferi , and (a) signiferi ( so robert de veer is termed signifer gulielmi longaespathae ) also primicerii and (b) balcaniferi ; yea , men of this rank and title have not only been accounted brothers in arms to princes , but taken to be husbands in arms to queens , and yet not been disparaged ; so was owen aep theodore to katharine , once queen dowager of england , and when she was so , maintained an action as queen of england : so our law and nationall civility accounted ever highly of these , because they were men of great valour and merit , which was not onely the reason that lands held in serjeantry have been to finde two esquires to go in the kings vant-guard upon occasion of war with the welch , as a grave authour informs me , but that men in times of trouble purchased these , their friends and confederates as leaders , and daring to defend them by puissance and force , so i collect from statute r. . c. . which sayes , because that divers people of small garrison of land , rent , or other possessions , do make great retinue of people , as well esquires as of others , in many parts of the realm . so at this day no man is charged with light-horse ( which is a gentlemans service ) but such as are in account esquires , and are fellows to those whom the statutes of h. . c. . h. . c. . h. . c. . eliz. c. . intends . and though before henry the fourths time men were not distinguishable but by their forinsecum servitium ; yet the h. . c. . appointing additions to ascertain men otherwise doubtfull , titles came in use , and this of esquire , before the time of our chancellours writing ; concerning the degrees , priviledges , and other curiosities of them , the former authorities about knighthood referred to , are proper to be in them consulted , onely these are the numerous part of the men of fortune , blood , and breeding , in the nation , and the second degree of the minor nobility , comprehending in it , under the notion of gentlemen , knights and esquires . paterfamilias . ] this word does not denote one , a servant or substitute , manerii ballivus , domus dominica custos , & domesticus famulus , as m. paris calls some ; no , nor the major domus or vice-master ; nor yet a farmer ( as firma and firmarius used in our old authours , understand them : and as the romans called their coloni and pagani , of which (a) tully , (b) lazius , and others write ) but paterfamilias imports one (c) qui sui juris est , nullique addictus mancipio , called the father of the family ; non quod familiam sed jus familiae habet , as the lawyers say : this we in england anciently called the good man ; and the old dames in my memory were wont to call their husbands , my good man : later times more gentilized , discard that name from all mouthes , but those that are plebeian , and though it be enunciative of franklaynes ; that is , free-liers , and owners of land , in which sense swain●-mete is the name of the conventus libere tenentium , according to the old custom or law , swaine-metum teneatur ter in anno ; yet is it now not much set by , though from this condition of them , there are many now grown into families , now called franklin , who are men in the county of middl. and other parts magnis ditati possessionibus , which the text expresseth to set out this paterfamilias by , and this is an argument of much wealth ; for therefore he that is the paterfamilias here , is counted ditatus , because he has possessiones , not like those ascriptitii , which were a sort of husbandmen , that bound themselves by indenture to till the ground , promising not to depart till their manumission , nor as possessours of the one onely farm , or mansion they live in , but many farmes and portions of lands they demise to others , and those not only in their own county , wherein they live , and in which they are members , but in other shires , and not onely copy-hold , which is a badge of villenage , but free-holds : yea , and those not onely tenancies , but even capitall messages , and chiefe mannors , by reason whereof they are drawn sometimes to beare offices in forraign cōunties upon extraordinary occasion , and have opportunity to place their children apart , when their age and their parents pleasure is they should marry , or be bestowed in a course of life , to live upon what by their fatherly gift is become their own ; and as many possessions in number , so large in their extent , noble in their royalty , and rich in their revenue : for of this race of men who were and are but plain good man , and iohn , and thomas , many in kent , and middlesex especially , besides sparsim in every severall county have been men of knights estate , who could dispend many hundreds a year , and yet put up to raise daughters portions ; yea , so ambitious are many of them to be gentlemen , that they by plentifull living obtaine the courtesie of being called master , and written gentleman ; and their posterities by being bred to learning and law , either in universities , or inns of chancery and court , turn perfect sparks , and listed gallants , companions to knights and esquires , and often adopted into those orders : and from this sourse , which is no ignoble one , have risen many of the now flourishing gentry ; for the gain of callings , whether clerkly or civicall , has preserved and augmented estates , when the state and thristless laziness of the old english gentleman has sold them , and servants ; by proving themselves laborious and provident bees ; have entred by purchase upon their masters hives and their honey too . for besides the good pleasure of god who has decreed revolutions in families as well as governments , and variations in the parts as well as in the whole of the world , there is a cancre even in time which eats out the luster and puts out the light of the brightest family , whom few ages see obsolete and vanished , and another in place of it ; and there are periodique vices which varlets and bigots in families have , by which ancestors graves , corps , monuments , royalties , and seats are transferred from them to others , whose humours are more retentive , and veines less vain and riotous . and this is the cause why god ought onely to be eyed in the desired fortunation of families ; for no humane wit , providence , or adjunct whatsoever can preserve against this moth ; or promote against this depression , nor can the brightest star that arises in the firmament of a family , shine to any durable illustricity , if it be denyed the rayes of power and mercy to adjuvate and continue it ; yea most an end it is seen , that as blazing stars are portentuous presages of changes in states , so are notable wits and polite persons ( sparkling remarkably in families ) proems to the temporary if not total eclipse of them , for either they suddenly dye re infecta ( not reaping what they have sown , nor having past the last round of the ladder of greatness ) or else they neither leave no heirs of their name , or such as are no honour to their names . and therefore though the counsel of god be secret , and no man can presage what , and when , and why , and by whom this family shall be made or marr'd , yet all wise men know , that there have been , are , and ever will be flouds and ebbs in families , and men there will be in them who are made for the rise and fall of many in them ; some crown what others curse , some purchase , others profusely squander , some are blest with marriages apparently rich , and succedaneously more rich , and they live to have issue by them , and those inheritors ; others marry upon hopes , and their abortion mutilates them even to a necessitous condition ; some cast away themselves , not caring whom they joyn to , and their desperate voyage ; judged ship-wrack , proves a conquest of peru ; or springing of a mine of gold and treasure ; the summ of all is to trust god , and design things with virtue and moderate wisdom , not relying too much on the arm of flesh , and the event is mostly better then when so much of mans policy and wisdom predominates , for god's counsel will stand , and most an end he sets his wisdom to defeat ours which is not also his : they seldom reckon of successes aright that reckon without their host ( as with reverence ) the proverb is , they doe , that take not god into their thoughts , counsels , and actions ; nay it is often the judgement of men to be blinded by delusion , and deafned through pride and passion against the counsel that propitiates and tenders ( if followed ) safety to them . in the irish chronicle , in sir iohn perot's deputy-ship ; there is a notable story , there was an engagement against the obrins , who had betaken themselves to a wood , and there lay hid ready to entertain the english valour which would come out there to assault them , iaques wingfield a brave commander , and experienced , had two nephews , sir peter , and captain george carew , who were hot upon the service , and by all means would enter the wood upon the irish , iaques would not let them , but sir peter would no nay but in he must go , slighting his uncles counsel , and captain george would have gone in also but that his uncle forcibly hindred him , saying , i will not lose you both at once , sir peter was presently taken and slain ; but i recall my self to my text , which thus followes . nec non libere tenentes alii , & valecti plurimi suis patrimoniis sufficientes , ad faciendam juratam in forma pernotata . this is added to shew , that over and above knights , esquires , and reputed gentlemen , ( whom the courtesie of the nation favours with that appellation for their wealths sake , they being magnis ditati possessionibus ; ) there are others of fortune and solid substance socagers and copy-holders , who are fit to serve on juries , having lands and lands-worth to the value of the highest requiry ; and this shews the general wealth of england , that it is not cooped up in a few great mens hands , who share out to themselves the delicate parts of the national dainties , leaving bare bones to the meaner people , and rendring their ingenuity fruitless to them , but spread abroad to all orders and degrees of men , so as every one has his encouragement , and may perform his duty in turns ; and , by being capable hereof , endeavours by all good means to discipline , train , and institute himself thereto . now as before our text explicated the noble parts of this nations anatomy , so now writes he his observations on the other , though lesse eminent , yet as usefull parts of the body politick ; and these he terms libere tenentes and valecti ] the former free-holders without doubt were opposed to villains , such as held their lands in base tenure , and base services ; therefore being ad natum domini , and subject to his passions , either of lust , rage , or reward , now this not being the condition of all country men , but some ( either by hardiness making conditions with conquerours to enjoy their rights , or purchasing their darling liberty out of the tallons of victorious seisers of them ; rested free in their persons , relations , lands , and acquirements , paying only quit-rents , or other inconsiderable annual acknowledgments , as owning their lords seigniory , and yet their own freedom , which if distrained from them , or they compelled to any service or payment not due by the condition and compact of their tenure , nor customary in the mannor , then had they remedy against the lord by bill in chancery , as he had by seisure , in case they broke truce and were trespassers upon him ) continuing free , their tenure was called land of inheritance and free-socage , which yet owes some suites and service to the lord it is held of , and may pay also a quit-rent , and as it may happen a fine at every alienation of . s. or some such small matter , yet that certain and not at the will of the lord ; and these tenants are called barons , and from them the court-baron is denominated ; yea , the tenure of these is so estimable in law ( being of old date and upon grand consideration ) that they are a kinde of cheque-mates to the lord , because without them , in some cases , he cannot dispose of matters in his mannor , not but that the lords and free-holders estates are for the most part distinct and cognizable each from other , but because the conjunction of both , in cases of inclosures of commons , and division of wasts , and other such like things , as depends upon the court-baron , is necessary : and methinks this complication of things in a harmony commends highly the prudence of antiquity , in that it made such a dependance as occasioned correspondence and communication between the head and foot , the hand and heart , the better to keep the end of god in mans creation , inviolate , that man should serve god , in serving these common ends that unite mindes under his supreme government dominion and conduct , and the delegations of it to magistrates . et valecti plurimi , &c. ] these i suppose are men of less note , and not so free , for though , when our chancellour wrote , there was no slavery or villeinage in england , for those were antiquated in r. . time ; yet there were seeming badges and prints of that deformity , which yet in h. . time , and to this day some mistakingly judge to scar the face of freedom , and those they take to be them which our law calls yeomen , see stat. r. . c. . & r. . c. . these are the next order to gentlemen , termed yeomen quasi young men , as some think , or from gemen or yemen in the saxon signifying a commoner ; so that of old these were men of no rank above servants , though valet in the french imports quasi va lez son maistre , thence the word wallet [ pera viatoria ] the bearers of this as some called them valets or varlets , others called them garcions , though of old it was a title of better repute , for all young persons though gentlemen , if not knights , and under eighteen years old , were called valets in france , as we called them batchelours in england , hence valet de chambre , a title of honour to the king ; but francis the first of france , perceiving those that attended him to be no better then roturiers ( our yeomen ) introduced gentlemen of the chamber , though yet in the king's palace here the officer yeoman remains , stat. . h. . c. . yet in subserviency to the gentlemen-officers ; so are grooms another court word , in french valet , or varlet ; so that the texts valecti or valetti are such of the commoners of countries , who hold not their land sub nomine culvertagii & perpetua servitutis , but having been servants or tenants to great men , have either , pro bono servitio impenso vel impendendo , had land given them , or by industry and thrift ( blessed by god ) been purchasors of land in see to them and their heirs , and that in such sort for the quality , and in such proportion for the value , that the law requires jury men to be of , as before in the chapter of juries i have shewed ; that they may be said to be sufficientes ad faciendam juratam in forma praenotata . sunt namque valecti diversi in regione illa , qui plusquam sexcenta scuta per annum expendere possunt , quo juratae superius descriptae sepissime in regione illa fiunt . this is added to shew that juries are peculiar to england , because country-men of estate are onely in england , in the several hundreds of the counties of it ; now though it be usual for men of the plough to be and abide up and down in the country in nations abroad , yet onely with us are they men of estate , and allowed , as such , to be judicial members of juries , and fit they should be judges of fact on other mens estates ; because they have estates of their own , and so knowing what an estate is , are presumed to be more intent upon , and considerate about their verdict in their neighbours case . and this is the reason that not onely the law requires they shall have solid and solvent estates , but acordingly such in very deed they have , most of them to a very convenient proportion , but some , and that not a few , qui plusquam sexcenta scuta expendere possent . scuta ] are french crowns , so called i think from the shield of the arms of france , that they have on one side of them ; there are three sorts of them , escusol , the best crown now made having a star on one side ; escu coronne , the next less by a sous then the former ; and escu veil the old crown , worth . s. . d. sterling ; of the former crowns i take our chancellour to mean , and according to that his computation of yearly , valuing a crown at . s. . d. comes to about . l. english a year , which in our chancellours time when silver was at . d. an ounce , comes to almost . l. a year now , which though it be a great estate , is no more then many in every county of these true yeomen , gentilized onely by the courtesie of the nation , have with advantage , and many to double the value ; now these churles ( not hunger-starved like the peasants of france , nor cowed down like the boores in germany , but keeping free houses , and being full of riches and plenty ) are the persons whom the text mentions , not onely as men of possessions , but as by them possessions fitted to serve on juries with knights and espuires . presertim in ingentibus causis , de militibus , armigeris , & aliis quorum possessiones in universo excedunt duo millia scutorum per annum . this is subjoined to make good what before has been shewen in the chapter of juries , that jury men were chosen of different worth , according to the different value and nature of the cause they were to serve upon ; in case of life and title of land , great assises , none but knights were summoned and served in glanvil's time ▪ and after , and in our chancellours time , though esquires and great yeomen under the name of alii did serve on them , yet those had possessiones , and those to the value of a knights estate , towards , or l. a year , as now things go ; for i compute the crown which we call a french crown , though the translator reckons it much less in words , but not in truth , for he renders scuta by marks english in his time , which is full as much and more then pounds sterling now . quare cogitari nequit tales subornari posse , vel perjurari velle , nedum ob timorem dei , sed & ob honorem suum conservandum , & vituperium damnum quoque inde consequutivum evitandum etiam ne eorum haeredes ipsorum laedantur infamia . the premises considered , and the members of juries being affluent men ( above the exigences and pressures of life , which follicite men often , and sometimes , yea too too often prevaile with them , to exchange a good conscience for a transient accommod●tion ) and being also such as disdaine to stain their honours , infamize their posterities , endanger their fortunes ; and displease god the righteous judg , who delights in truth in the inward man ; and being such as those in whom the posse and velle of integrity is upon no ordinary termes presumed to be : how , i say , these things well weighed , can by the wit of men and governments , any more probable way be excogitated to preserve justice and right trial then england by juries has , i cannot conceive ? for , surely there cannot be any thing cohibitive and repellent of temptation , if the fear of god and shame amongst men be not prevalent to the formidation of , and the abstinence from it . first , obtimorem dei . ] for that being the beginning of wisdom , is that which layes the ground-work for all the after-superstructure ; feare of god keeps the soule stiff girt against all temptations , intent upon duty , vigilant over its affections , exact in charitable distributions : fear of god is a complex virtue , that has omnis religionis & boni rationem in it ; 't is that which adapts a man to every command without dispute , to avoid every thing prohibited without seeking evasions , and attempting dispensation for non-performance , to observe every voice of god , either in his word , by his spirit , or of his rod , and to follow the dictations of it : 't is that which searches the souls sesters , quickens its dimm prospect , sharpens its devoute appetite , nimbles its obsequious foot , elevates its active hands , invigorates the whole man , to be what god will have him , and suffer what he has preappointed for him : and therefore solomen who was an incarnate lucifer , and knew experimentally , and thorough practice , what wisdom was , initiates it from the feare of the lord , because that directs a man to make god the aime , center , and achme of his wisdom , and to be wise for his soul and eternity , both concerned and advanced by gods glory , which his feare propagates ; and therefore though heathens determine wisdom by knowledge of men , creatures , books , arts , and politick practiques upon them , though they are excited to good , and deterred from evil , by rewards and punishments , which bribe them to either one or other ; yet the best prescript is , to take and leave , as gods fear principles and excites us ; fear god and keep his commandments , for this is the whole duty of man : feare god , and that will make us keep his commandments , which are not grievous to his fearers , but pathes of pleasure and peace : and feare god , by keeping his commandments , for that is the best indication of our fear , and all his commandments , for that testifies our internall sincerity ; yea , and feare god and keep his commandments , for 't is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the whole duty of man : though not wholly the duty of man , for angells and saints feare , yea devills fear god , and 't is their duty so to do , as well as mans ; but 't is the whole duty of man : because , whatever god requires of renovated man , whatever he accepts as the reparation of lapsed nature , thorough the interposition of christ , who fortifies the soul in his fear , and out-brazens it against its worldly confronts to a persistency , is couched in this fear ; this do o holy soul and live a saint , and die and ever after live an angell . so then , the feare of god being such a curb , as heretofore in this book in the notes on the fourth chapter i have shewed it is to all good men , in the examples of abraham , moses , ioseph , iob , ieremiah , david , paul ; the primitive martyrs , and all the seraphick comprehenders , and militant heroicks , who keep themselves unspotted of the world , and meddle not with that abominable thing that god hates , ea ratione , because he hates it , and because it makes them unlike him ; whom their piety indeavours to assimilate , it must needs work upon precise pious soules proprie & quarto modo , and restrain others of morall and civill principles , by way of proportion , and as resulting from that surviving awe of god that is left upon their souls intemerate , and so it is amulettick . for , if the fear of man , whose power is only temporary , and terrible to the outward parts , the subject of its violence and dirily is such , that it forces him to do or not do against the eddy and propension of his genius and affection : how much more shall the feare of an immortall god ( ruling in the soul by a golden scepter of love , and impending over the soul , erring from him by perfidie and elective degeneration , clouds of fire and brimstone ; and those eternally to be suffering in , without any possibility of reprieve , relaxation , or discharge ) preporiderate it to do what he commands , and decline what he forbids , ob timorem dei . secondly , honorem suum conservandum , ] that 's another stimulation to integrity , and a disanimation to perjury and prostitution of conscience ; and this is so suasive with mortalls , that they will part with life rather then with that they account honour : though some will do as the old doting and unfortunate captain did , who rendred a city of the king of spain's to his enemy , to save his head ; but the king told him , perdista mi villa y guardasté la barba cana . sir , you have rendered my town to save your white beard , which you shall be no gainer by : thus sometimes it is , aud usually aske hectors what the chiefe article in the creed of gallantry is , and they will quote honor & vita aque passu ambularent ; this is the diana of this world 's ephesians , this the image that came down from their iupiter ; such gods in the likeness of men they venerate : and what assaults this they execute , and are quickly in arms against ; and by this zeale to their imaginary eminence ( which consists chiefly in opinion and popular suffrage , and has it's systole's , and diastole's , as the ages humour is , more or less , quicker , or less smart ) they think themselves safe in point of honour and reputation : now the wit of man cannot contrive , should it be intent on the exploration many ages a more durable and certain way of stabilizing that , then justice , the ready way to a good name , the great idol that men fall down before sinlesly : a good name , saith solomon , is as a precious oyntment ; this the learned render by existimatio , which is something extra aestimationem , without , beyond , and above esteem ; dignitatis illaesae status legibus & moribus comprobatus , as the civilians call it : and budaus , when he sayes , estimation is the consideration and porpension of any thing , adds , existimatio judicium & arbitratus : therefore though some do calculate it to the proportion of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , fama , yet he makes it more according to the computation of (a) a gellius , whose words are fama ex vulgi iudicio nascitur sed existimatum hominem esse qui in primis censetur ; that is , inter bonos & graves : for , both esteem and reproach or infamy , follows the account of such , and such best rule the exchange of both ; and therefore when the text writes of ob honorem suum conservandum added to the former , one would think our master had produced arguments cogent enough , yet least the fear of religion , and of mens undervaluations should not take men off from injurious courses , but they should persist to accumalate advantages to themselves by the gain of unrighteousness , the chancellour adds , damnum quoque consequunturum evitandum ; which what that is , the notes on the th chapter sets forth : yet as here the instance of it is introduced , it appeares to be that argument , which like the deep base drounds and prevailes over all the other notes of arguments . for , many atheistick mindes make nothing of god , ( he not being in all their thoughts , they put the evill day of his terrour , and visitation of them farr off ; drolling away the severe impressions and softnings of conscience , with resolved wickedness , and hectorean bravadoes ) and the good thoughts and reports of men they set light by , so they may add a cubit to their fortunary stature : they can make takes to the queen of heaven , and adore the planetary deities , that have profitable and pleasant aspects on them : they care not whose places they usurp , whose children they exheridate , whose reputation they prostitute , whose estate they defraud , whose right they suppress , whose bread they eat ; to these that of alatharick in cassiodore is not applicable , who , writing to cyprian the senator , sayes , merito tibi prolixior aetas optatur inqua fama semper robustior invenitur . let men censure them as they will , they will make much of one , and a fat sorrow ( they cry ) is better then a leane one , rather would they be envied then pitied ; populus me sibilat , at domi ipse mihi plaudo , crie they , for these against such like quezinesses prescribe , and proclaime themselves ●●●noh , they care not for same , 't is but ayre and prattle of people , and that they value rot ; but when the lawes of government , fine and imprison , when all they have must to pot for the offence against the king , in wilfull violation of his lawes , and that in the odious way of perjury , and that in the case of a false jury-man , then , then men look about them , and are afraid to be in deed what in affection they perhaps are , because they have wherewith , and must loose that from themselves , and in a good part from their posterities ; this keeps them within compass , ad evitandum secuturum damnum , they will keep honest ; for , though they scruple not with david , the water of b●h●ehem ; because it is the price of blood , but have consciences so large , that thorough the wide arch , and into the bottomless hell of them , vessels of never so great burthen with masts and sayles ; sins with colours flying , and effronteries neighing , may pass currantly and without boggle ; yet ruine of estate their punishment , more terrifies them then gods curse and heavens loss : and this the law knowing , urges them by it , not onely sub timore & infamia curtelagii & perpetuae servitatis , as henry the third did summon his subjects against the french ; but as king iohn did his nobles , as they would keep their estates , and prevent being nething , next degree to nothing , by forfeit of their estates : all which considered , the prudence of the law in deterring men from these sinfull engagements , to the injury of man and displeasure of god , is very remarkable . and hereupon the chancellours inference is very good and material ; taliter ( fili regis ) disposita , inhabitataque non sunt aliqua alia mundi regna . ] which he adds , not to depreciate other countreys which are also great instances of divine bounty and power , but to raise his owne countreys reputation , and his countrey mens gratitude : if god has made us like capernaum , lifted up to heaven ; if he has given us the purity of religion , the prerogative of being governed by our own lords , our kings , and their and our own laws ; the freedom of sitting under our owne vines , and enjoying our good things in peace ; if he have caused a cessation of leading into captivity , and complaining in our streets ; non taliter disposita inhabitataque sunt alia mundi regna in this sense ; but in that we have trials of life and fortune by juries , good men of estate , and true in disposition , standing stiff to the rule of justice , and inclinable neither to the fear of power , love of gaine , or by as of malice ; but such , as if they had a minde to be villanous , dare not for fear of shame and ruine to their persons , fortunes , and posterities : this , this , that there is in england , iustice free neither bought nor sold ; full , not curtayl'd or partiall ; speedy , not tedious and uncertain ; occasions the non taliter disposita here , &c. for surely , as the coyne of england is , of any in the world , the most to the intrinsick value of what the money goes for ( the kings of england having passed many lawes , in all times , for the custody of it from devirgination : and (a) king iames of blessed memory , notwithstanding them , caused a search to be made into the coyne , and a jury to be summoned of brave men to trie it , and came himself in person to see the assay made of it ) i say , as our coyne is the best , so is our justice the best , in that just assay of it , which juries of knights , esquires , and other free-holders of englands severall counties make , in causes upon which they are summoned to serve . and the reason why this is a peculiar happiness to english-men , is , because england onely has persons of these ranks , dispersed in every county ; so it follows . nam licet in eis sunt viri magnae potentiae magnarum opum & possessionum , non tamen corum unus prope moratur ad alterum ut in anglia commorantur viri , nec tanta ut ibi haereditatorum est copia & possidentium terras . no doubt but every country has its blessing ; some in soyle and fruits , some in beasts and birds , some in mettalls and ores , some in men of all personal accomplishments , others great in power , purse and command ; yet england , our chancellour thinks , has some advantadge above them all : because , as our hemisphere has no extremities of weather ; nor our seas any leviathans of fish ; nor our land behemoths of beasts ; so our land no men giants of greatness , to whom all their neighbourhoods are but crumbs and morsells for their ingurgitation : england being an island , every thing in it is framed by the mercy of god , and the wisdom of government , to a generall good ; and to such a method of improvement as is most dilate , and least oppressive : abroad in the continent , great men , as it were , live alone in the earth ; their vast uninhabited territories their titles swell with , give them room to lord it so over their vassalls , that they shrivell their spirits into a non-ingenuity , and leave thereby mighty tracts of ground untilled ; as thinking it toyle enough to get meat and drink , with a few ragged clothes for their lord , who takes them , and all they have for his propriety , and rewards them with nothing but severe lawes from him , and hard lives under him , such as these viri magnae potentiae magnarum opum & possessionum , are there abroad in france , germany , and all countries ; yea in england we have had such great persons of power and estate , as did ( in a sort ) stand upon terms with princes , lupus earl of chester , the lords in king iohn's time mentioned by * paris , hugh bigot e. of bungey , who in the time of h. . is said to utter that rhyme , if i were in my castle at bungey , vpon the water of waveny , i would not set a button by the king of cockney . r. bigot earl of norfolk , marshal of england ; bohun e. of hereford and essex , constable of england ; and gilbert de clare e. of chester , the earles of oxford , and arundel , the duke of norfolk , and others later have been men of great power and fortune ; to this day we have some such in england , but yet they are lessened by the lawes encouragement to industry , and the blessing of god on frugality and gaining courses of life , which steal upon the luxuriant idle lives of great men , and undermines their fortunes by its thrift which often purchases them : and this makes england ( though not nutritive of great men like the asian grandees , or the german dukes and electoral bishops , or the italian seigniors , dukes , and princes , who all are masters of castels and armies , and upon displeasure will call their leidges to their defence ; when in england all men , as well great as small , rich as poor , are bound to the peace , and must not armedly dispute with their prince , as leoline prince of wales traytorously did , and for it lost his life and government , and as all traitors since have done to their deserved ruine ) produce what is more conspicuous in the nation , an universal wealth and courage , diffused among the people of all counties ; who , though they live near one another , yet do thrive , entertain , negotiate , marry one with another , and mostly are not malvicines each to other , or do act the part of mangonells , slinging the stones of envy and destruction each at other , but as fair guests about prince arthur's round table sit merry in their respective seats , bearing their proportions of service to their countries , according to their sovereigns pleasure and the lawes requiry . the summ of all is this , there may be some absoluter and more supreme great men in other countries , because they keep their tenants slaves , when ours are free , and make them drudges and beggars , when ours have easie lives and rich purses under their lords , who let them good penyworths and rejoice in their increase under them : but the chancellour sayes , there is not in any country , though much bigger then england , tanta haereditatorum copia , such a harvest and plenty of socagers , freeholders , and men of value , who have whereof to leave to their heirs , and executors after them ( for copia come à con & ope , plenty of any thing , copia quasi coopia , as medicum quasi medium ) so that in this copia haereditatorum , the chancellour intends men of value in lands or lands-worth ( for the equivalence is as much within the intent of the text as the thing in kinde ) to be as it were thick-sowed up and down england , and thick come up ; which facilitates the bayliffs labour in every hundred , to summon his jury upon all occasions . vix enim in villa una regionum aliarum reperiri poterit vir unus , patrimonio sufficiens ut in iuratis . 't was in the precedent clause the chancellour's assertion of his country england , that it was so packed and stuffed with lauded and estated men , that in it so small a ville or thorp cannot be found , wherein dwelleth not a knight , esquire , or some free-holder of good lands , or all of them , i may add , and that almost every where ; but here , when he parallels other countries , he sayes , vix enim in villa una , scarce can there in a ville be found one of ability to be a jury-man , that is , worth . s. . l. or . l. a year , the reason not being because the soyle of other countries is not so fertile , or the natural ingenuity of other country men less then ours , but onely from the oppression of the great men that suck all the nutriment from them ; and as pikes in a river prey upon the lesser fishes , and by the continual drip of their amazing greatness , upon which they dare not cast one confident look , they become poor-spirited , lazy , and incogitative to progg , and ingenuously improve their lives of labour ; for let them advance what they can , 't is but to add heaps to their lord , not a grain falls to their grist , miserable they are and ever must be : this , this , is that which not onely arraigns their lords of less generosity then the lyons of africk have , if aldrovandus from aelian do not mislead me ( who when they in hard weather come to the cottages of the moors in the desarts , and knock at the door , when the poor woman , keeping the door shut , answers them in the moors language which they understand , 't is your part , as king of the beasts , to take your prey upon beasts which are proper for your food , and not to come to seek relief at my poor cottage , where i am so far from plenty , whereof to relieve beasts , that i have not enough to feed me and my family ; these words do so charme the lion ; that he departs ashamed , as sensible he has done an act disgracefull to him : this i say is reported to be the generosity of that creature , who abhorrs to oppress poverty ) when as the great men abroad do nothing else but infelicitate the lives of their peasants , boores , and villains , by hard exactions from them , and strait allowances to them ; and by this keep them so narrow-spirited , that they know not what it is pennas nido majores extendere , and if any of them act above the sphear of vulgarity , 't is by the sufflation of a miracle , or something which i can reckon no lesse then it ; so was chongius from a dull smith kindled into a bravery to become the place and power of cham of tartary , and to behave himself in it bravely against the turks ; so did that young sicilian , who , when the venetian general was in distress , offered to fire ottoman's navy , which he did , and when he was taken , being asked by ottoman what moved him to do it , bravely replied , that he had done it to hinder the common enemy of christendom , and that this attempt would be much more glorious if he might as easily run his sword through his body , as he had set fire on his gallies ; though these and such like examples there may be of mean persons , low bred , and lowly living , who having these towres and altitudes in their mindes , look upon the valleys below them as too mean for their delight , yet the major part being accustomed to nothing but toil and poverty , do not in suum ipsorum sinum inspuere , but content themselves to know nothing more then they ought , and desire nothing beyond what they have : this makes those vast countries , where men magna potentiae , & magnarum opum , & possessionum are , to be barren of middle men , who amount to the value of jury-men , that one overgrown giant starves all his neighbourhood , whom his magnitude suffers onely to be pigmies . nam raro ibidem , aliqui praeter nobiles reperiuntur possessores agrorum , aliorumque immobilium , extra civitates & muratas villas . 't is not nunquam but raro , not said by our text that abroad there are none out of cities and towns , men of estate and estates worth ( possessores agrorum aliorúmque immobilium ) but seldom or but few such : such an one is rara avis in terris nigroque simillima cygno ; one of a city and two of a tribe , as the scripture phrase is to express paucity , the great priviledges and possessions are reserved for the nobles , who being the braver sparks , have the glitter of estates to dazle the eyes of their humble valets by . this is purposely subjoined to shew the value foreign lawes put upon nobility of race , and to these onely is indulged to be owners of castles and countries , and offices of honour and renown ; for though in cities and corporations men of trade and arts have estates in burgage , and are great bankers , full of plenty and riches to live , and bestow their children by ; yet the lands that lye in the country are granges and husbandries , appertaining to lords , knights , and gentlemen , who are called nobiles a la mode de france , and to whom the occupiers and dwellers in and upon them are but servants : and therefore these that are so great masters of all that 's conspicuous and desirable in life , ought to consider , that ( as philo excellently , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. ) nobility is not onely measured by bloud and descent from ancestors of prowesse , but by personall virtue and deeds of merit in him that claims it , which , if a man want , though he have all the lustre of successional glory , and be of a family , whom honour it self has been entailed to , and concentred in , as in its element ; yet no true nobi●ity is thence devolved on a degenerous successour : king alatharicus writing to opilion , tells him , what a sparkling ancestry he broke out from , and how uniform the virtues of his brother were to those of his father ; that nobility seemed to make his family her hive , and to hatch all her noble brood in his relations : yet , when all is thus by him expressed , he concludes ; that though honour and life be contemporary to them , yet if virtue be not also concomitant , there is a great abatement of the superexcellency of it . though therefore nobility be a rare advantage to every ascent and conspicuity of life , yet is it chiefly and only in the account of god and wise men so , when it designs and acts service to god and men , in promoting his glory and their good : for this to do , is to excell , nobiles esse quasi noscibiles , to carry the badge of their honour on their actions ; which is more pompous and magnificent then trains of lackeys , and vollies of oathes , then contempt of studies , and of lives of imployment and gainfull subsistence , which are so abominated by the great and gaious youth , that they deride those that are votaries to diligence in them , as ignoble spirits , and by wholly waving them , leave them to such as will intend them ; which budans sadly bemoans in france , and others may as sadly in england : wherein truely nothing is thought noble but what comes too neer idleness and prodigality , (a) contempt of religion , and breach of promise , which god knowes are so farr from being gentle and noble , that they are immoralities which vitiate the faire portraytures of mercy in those advancements of men to greatness by god , whose vassalls they are , and to whom they must be responsible : but the best remedy of this is , to pray god to turn the hearts of men from libertinism to a severer life , by which honour will have more prevalence then by any other engine : for , 't is not the coruscation of an ancestour , or the vapour of a title , or the plenty of a revenue that nobilitates men , but the wisdom of the minde and action seconding these , that makes a conspicuity and veneration by reason of them ; and this the treaters on honours and nobility , put the stress of their arguments in defence of it upon , since riches and force are nobilities , which beasts have in common with men ; but reason and sagacity is that which only is that endowment which men and angells have : and that because they are made to be the daily attendants and courtiers in ordinary before god. though therefore i concur with the excellent discourses of bartholus , cliothovius , bonus de curtili , lucas de penna , lundolphus , pogins florentinus , and others , who have acclamated nobility not more elegantly then so prinecly a subject requires ; though i allow of that heroick principle , to stand upon the honour of our ancestours and family , yet still i like the association of virtue in a divine sense with it ; which by making a man acceptable to god ( as bartholus his words are , apud deum iste nobilis est quem deus sua gratia gratum sibi fecit ) makes him also honourable amongst men , which st. ierom applying to marcella , made her truely noble in his testimony of her : other nobility abstracted from this , is nobility reversed , turned topsie-turvy ; like that the father imputes to helvidius the heretick , of whom he sayes , nobilis factus es eo scelere , 't is nobility in the sense ; lais the curtezan is called nobilis scortae , and the place where the romans had the overthrow said to be nobilis ille clade romana locus est : and the best fruit it produces will be but like that mistaken bravery of minde , which that vaine lombard expressed , whom the venetian senate decreeing whatever he demanded , as a recompence for his art , in setting up the three wonderfull pillars in that city , he requested onely the sanction , that it might be lawfull for all dice-players , and card-players , to play and cheat betwixt those pillars , without any fear of punishment : this , i say , will be the sequell of such gallantry , when as that nobility that is mingled with piety and prudence , refuses and abhors commerce with that vice , which alloyes the dignity of descent by the ignobility of action : by all which it appeares , that as nobility has preferreney to plebeity , so it is exalted in the positivity of such degrees of heroicism as makes nobles transcend vulgars in virtues divine , civil , and politick ; to be noble for wisdom , as was solomon ; for meekness , as was moses ; for patience , as was iob : to dimm and ecclipse ordinary excellencies , as alexander , aristotle , antoninus , caesar , scipio , tully , metellus did their contemporaries . not onely to be lineally descended from nobles , but to be noble in thought , word , and deed ; such as these are the true 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whom iustinian calls his nobles ; not onely from the sheilds in which their ancestors were effigiated , but from the notable conduct , and un-tainted loyalty that their deportments in the trusts credited to them , discover of them ; and to such nobiles as these too much cannot be attributed : too great portions of nations be given , because they are of men in nations the best , 't is fit they should be best accommodated ; virtue is a valuable consideration for any purchase of favour and fortune , and by reason of the impression of this on the first blazing stars in families , did nobility descend to posterity , and with nobility great patrimonies to support it in a decent and becoming equipage ; for honour without estate is like a stomach without meat , a very great and unpleasing burthen . therefore wise governments have ever exalted those to nobility , who either have had ample fortunes , or virtues attractive of such , ingenuity and diligence being magnetick of them ; which , though it be not ever imployed in gross and corporally laborious courses of life , yet if it be in callings , that equally merrit of governments , ought to be suitably rewarded by them : and hereupon , as peace and warr are the two poles on which the world of government turnes , as the common sort of arts-men and labourers do follow those professions of peace ; fo the nobles and gentry do engage in courses of chivalry , especially in france , where the cavalry is made up of them , and that is the strength and glory of that kingdom : for the infantry being so kept under , by their indigent and suppressed lives , are not so considerable as ours are , whose spirits being boayed up by the freedom of the lawes , vouchsafing them that plenty and accommodation that their labour and parsimony acquires to them ; they are bold and brave spirited in the field , and as ready to encounter their king and countreys foes , as they were to beare the brunt of heat and cold , early and late , wet and dry , in their country employment . and this is the reason that the commoners of england being landed , are so subsidiary to their princes and laws in all kindes of aide and duty , because they have whereon to keep up their own spirits , and to breed their servants and sons to manly and lusty exercises , from which as their train , they ascend to ambitions of rivalry with men of generous birth , and often have more of prowess in their minds then great born and bred men have , for though the nobles and gentry with us have the great royalties and demesnes , the vast estates and revenues , the lofty and towring woods , the bottomless and rich mines , yet the yeoman and his fellows have very much riches in money , land , yea and royalties too in every shire . and therefore though it is the french crown 's interest to keep the commoner poor , and the noblesse their cavalry may eat him up , and he not dare to begrudg their hard dealing , but crouch and cringe to their greatness , as thinking his answallowed down carcass happiness and priviledge enough for him to have ; yet the english commoner is on better terms , live he in what part of england he will , as remote from neighbours as he can , yet the law is his buckler , and the nations justice so just a guardian to him and his , that he ( following his honest vocation , and serving god , his prince , and country according to the laws ) need fear no man further , then the fear of prudence and civility obliges inferiours to be disposed to their superiours : for though the law and custome of the nation exclude high shooes from services of honour and command , such as are deputy lievtenantships , justiceships of the peace , memberships to parliament , from being captains of trained bands , personal service to princes at coronation , ( i mean near their body , according to the nature of some tenures , and sundry other things of the like nature ; ) yet do they not stand out-lawed and excommunicate from being rich in land and money , free in house-keeping and cloathing , but are what the commoners of france are not , possessores agrerum aliorumque immobilium . nobiles quoque ibidem pasturarum copiam non habent . ] though the nobles , who are there all those that we call knights , esquires , and gentlemen ( for as by the civil law there is no title beneath knights , the rest going under the name of people , so in france there are onely two degrees , the nobles and the commons ) though the nobles , i say , have all the country seats and demesnes , yet are their seats not furnished with pasture , grazing , and meadow-demesnes , as ours here are ; for pasturarum copiam non habent ] and the reason is , not onely because france is much a hilly country , but also because its fields are champaign and vast , far from improvement by inclosure , an enemy to horsemen , who love to finde or lay all in common , plain before them ; besides it being an in-land country is not so irrigated by sweet and silver rivers , which overflowing the banks fertilize the conterminating lands by their inundation , as other countries which lye lower and being deep and flat , are accommodated by : and therefore because the nobles have not such granges and farms whose creslow grounds feed sturdy oxen , succulent milch cowes , deep fleeced sheep , and stall them also with their sweet-sented hay in winter , whereby their houses are provided for with all substantials to hospitality ; and of the supernumeraries sold , buy other additions to that excellent and royal entertainments of families , which is peculiarly the glory of england . the french nobles , while themselves and their retinues with their military treatment , when their army is in motion for the three or four hot months of the year , and the rest they live at home , plentifully for their own persons and children , but all their retinue is at board-wages ; for since they have not pasture in plenty , nor must not husband things warily , as men do , that make the most ( as we say ) of their own , pinch they must some way to bring their revenue and expences to be cater-cousins , for that principle of mistake runs through the warp and wouf of greatness . those callings and courses of life that relate to learning , corporations , or agriculture , do not statui nobili convenire , so is the text , vineas colere aut aratro manus imponere statui non convenit : ] which , though it were received here of old , when the civil warrs of the nation made souldiers the best trumps , and ruffed off the board of honour all the stakes of wealth and place , according to that clause in the statute of merton . c. . which forbids that wards should be married villanis , séu burgensibus , nè disparagentur , yet now is altogether obsoleted ; peace the mother of arts and mistriss of riches bringing in those into the bed of honour , whose fortunes and merits , dignifyed by the sovereign's favour , vouchsafed admission to : so that though in france a noblemans estate , though small , may not be inched out by setting his sons , or overlooking himself the occupation and improvement of it , because it is below his greatness so to do , yet with us nothing is more usual , no , nor more commendable ( due regard being had to moderation in the degree , and consideration of the farmer , whose calling this chiefly is ) then so to do ; for though we do not manus arratro apponere , & vine as colere , which are the imployments of perfect colones , yet to inspect those that thus doe , and to order what , and see accordingly that they doe , is the imployment of many gentlemen , who yet keep bayliffs , and notwithstanding finde it necessary to cast an eye into their offices ; nor ought any man how great in birth , breeding , and fortune soever , disdain the knowledge and care of the plough , who considers his progenitors in time and virtue taken from it to the highest atchievments ; the romans took many brave citizens from the plough to be their generals ; and the families of lentulus and cicero took their names from their imployments in the country ; and though the germans our ancestors did not much dote on tillage , but rather on forrage , which is the reason that historians note them to abhorr it as unmanly , and to commit it to their women , or to those poor spirits whom they call burii , probably the swains that drudged in the farm , which we call yet in some places a berry ; yet is tillage a very usefull imployment and very creditable , which besides the authoritìes heretofore in this chapter and on this argument quoted , is confirmable from that of tully , who , though an orator by knowledge and profession , so applauds it , that he gives it the utmost courtesie of his eloquent munificence , nihil agricultura melius , &c. nothing is more profitable and usefull then husbandry , nothing sweeter and more worthy a free-spirited man then to imploy his time and minde in and about it . and therefore for nobles ( as france calls all that are not the common people ) to think tillage or vine-dressing , i mean , overlooking the drudgers in them , not statui suo convenire , is more from a huff of pride then the reason of prudence in them , for no man ought to count that calling slavery that brings in penny-savoury ; and that it does when it inches out the shortness of rent-fortunes to more capacious purposes . nor are punctilio's nationally to be stood upon , where they are not credited and supported by some fortunary grandeurs : and therefore since necessity is the lord-marshal that determines decency , and what is comportable with all mens estates under it , it is prudence to submit to that which is most for convenience , and has the directest tendency to preservation and increase ; which , industry having the suffrage of nations for , encourages nations and princes to reward estates with honours , and account those honours best supported that are well underlaid with revenues . and thus as the venetians , florentines , and we do account merchandise not beneath a gentleman , so did not lewis the twelfth , that wise and worthy prince , who priviledged the citizens of certain great cities to hold noble tenures , which is contrary to the law of france , and gives the reason , quia istae civitatis habent jura nobilitatis , for since those places do benefit the crown , good reason they should be benefited with honour from the crown ; which yet the french do not generally receive for a rule , for cassanaeus one of that country sayes , apud nos gallos , nobiles ut plurimum habitant in rure , & ibi rejecta omni mercatura , cult●i agrorum ( saltem non multum opulenti ) & rusticanae rei per familiam vacant , &c. which is not contrary to what the text sayes , for the gallants do attend the army of the king , and what time they are at home they do not think any inspection over their revenues , which consists of vineyards and tillage , suitable to their state , because their whole intentness is upon the army , in which they are brave and live freely , commanding whatever they please and come to , and when they are from that , on hunting ; and this humour was in a great measure here till the warrs ( between the houses of york and lancaster determining in h. . ) ceased ; for then the gentry and youth , not having whereon martially to busie their mindes , fell to such callings of industry , as throne by peace : thus came the younger sons of noble and generous families to corporations , as apprentices to trades , and to inns of courts , and chancery , and other callings of gain to their future decent subsistence , and the commonalty fell to tillage and manual labours , to busie and support the multitudes of which , the great men of england , who had depopulated farms , which brought infrequentiam & diminutionem populi & per consequentiam oppidorum , ecclesiarum , decimarum & similium , as the noble historians words are , were fain to be enjoined to restore husbandry , hereupon by the statute of h. . c. . there was a penalty for decaying houses of husbandry , or not laying convenient land for the maintenance of the same , which statute though it were repealed by the eliz. c. . yet by c. . arrable land made pasture , since eliz. was again to be converted to tillage , and what is arrable was not to be converted to pasture , which good provision for the plough , the main engine of all our chief support for life ( bread ) brought husbandry in request , and with it riches , plenty , and civility of manners . and hence by the blessing of god comes it to passe that our yeomen , who are the strength of the nation and the best foot-souldiers in the world , are so much encouraged and in so good plight both in purse and courage ; and hence comes justice to flow so currantly in juries by the substantialness of these who are numerous in them ; which i am the longer upon , to shew the vanity of disdaining honest and gaining callings , and preferring an idleness of sin , shift , and want , before lives of business and profit , as the reward and compensation of them . let the nobles of france stand upon honour in this matter , the gentry of england finde too fatally the unhappy fruit of idle children and relations , and knowing industry in husbandry , trades , and professions of learning , blessed by god with heigths of attainment , equall to , and sometimes much transcending their families honour and estate , do now freely , and further i hope will dispose their children to them : for as there is no toyle like to that of idleness , so no pleasure better returned with peace and plenty then that of honest callings . to return then to our chancellour ; this being premised to introduce the parallel of england 〈◊〉 appeales to the lawyers on of juries , his conclusion is , that because juries , where 〈◊〉 at him , and exhibits multum remoti ; nor to be had in countreys where men are poor , 〈◊〉 his words and lue required : it follows , that since alone england abounds with 〈◊〉 the conqualified men , and so neer together as jury-men ought to be , who do 〈◊〉 agnoscere ratione vicinitatis , justice by their verdict , in matters of fact , is onely haved able in england ; which i so far admire , that i think if it be kept up in the honour of it , as i hope our masters the judges will see it shall , we in england shall avoid that too true character , that the french chancellour gives his country , haec eunomiâ gallia non regitun , &c. by this good law france is not governed . in which there is great indulgence to vice , and rare rewards to virtue ; where to blemish men of worth and wisdom is so frequent ; where recoveries of right by suite is so dubious , that modest and good men were better loose their right , and be quiet , then seek the recovery of it , with so much trouble , and so little certainty of obtaining it : thus the chancellour , whose words i modestly translate , that i may not offend many of our gallants , who are so frenchisied , that they dispise every thing almost that is english : though therefore no man can deny to france that which god has made it remarkable for , that it has an excellent ayre , plenty of corn and food , furniture of men and arts , quick and commodious , that it is the rising sun that looks to be adored ; yet do i not joyne with blondus , langolius , bonandus , textor , and cassanaeus in their hyperbolicks , when they make that prophesie of the daniel . where god is said to set up a kingdom that never shall be destroyed ; and the kingdom shall not be left to other people , but it shall break to peices and consume all those kingdomes : to be meant of france ; which for greatness of virtue , probity of manners , counsell , prudence , civility joyned with piety , and military skill is inferiour to no nation in the world . though , i say , i should grant to france much of this , yet there is yet an addition , to be wished it , which a learned frenchman made long agoe , (a) o beatam futuram galliam si tam contigisset heros habere frugi , quam bonos habere solet ; yea , and for all this , though it were granted to be so happy , vt hic palladem cum baccho certare videretur , as cassanaeus his words are : yet in the justice of it's trialls , 't would ( under favour of all the prealledged characters ) come beneath england ; for here the poorest subject cannot be injured in his goods , or body , but he has remedy by a jury of twelve men , and the like for his life ; for cast he must be by them , or die he cannot : when as there is not a marshall ( if marshall biron be to be beleived , and why he should not i know not ) can be free from being accounted , and condemned , as a traytor , by the single testimony of one , though a base person , as he alleadged la fin to be , who had bewitched him by the potency of a charm , and an image of wax , which deluded him into a beleife he should be king of france ; but from such seductions , delusions , accusers , laws and ends , good lord deliver us : and so i end this chapter . chap. xxx . tunc princeps . comparationes odiosas esse licet dixerimus , &c. this whole chapter is but introductionall , of the prince replying to the insinuations of the chancellour , concerning the justice of juries , and the possibility of having them in england above other countreys ; to which , though the prince is produced , mildly answering , yet in that is there much strenuity expressed , in refracting those hightnings that the chancellours love to his common lawes languaged it selfe by . now , though the prince waves comparisons , as engines , rather to advance humour , provoke passion , and manifest pride , then to dilucidate truth , and to lay open the candidates to a true judgement : yet , in that he keeps to a modest assertion of the civill law , and states it's regency and authority in the continent , whereof france is a part ; though he allows the common law the same favour in this island , he does but right without inconvenience to either lawes , and the contenders for them , since all the zeal and fervour that men passionately appear in to the averrment of their darlings , is but that squib of wit , which , though it soars high , and blazes in the firmament of popular admiration , evaporates and dissolves in a crack and issue of nothing but smoak and stench ; for god that made nothing in vain , but has given every living thing not onely breath but pabulary subsistence for its continuation , and a providence of support to make that by his benediction effectual to that end ; that same great and good god , directing neighbourhoods to join into cities , counties , and kingdoms , and to be governed by rules and lawes of prudence and order , has no doubt fitted every thing , not lawes excepted , to every country , and every country to the lawes his wisdom in the humane nature appointed for them ; and the lawes of one nation will universally no more fit another , then all cloaths will fit one body , or one bodies proportion fit every bodies : in the common principles , lawes in civilized nations all agree , though in the particulars they differ , as cloaths made all of one shape for mens bodies doe in the more or lesse of them ; and as that is the best suit of cloaths that best sets forth , and most accommodates the body with warmth , agility , and defence against injury , so is that the best law for any nation , that most promotes its peace , piety , and wealth , and impedes the cankers and subversions of them ; which since the civil law does abroad ( and for ought i know deserves in that regard that character which a learned professor of it gives , that if all the rules , maxims , constitutions , and lawes of all other people and countries were put together , i except none ( saith he ) save the lawes of the hebrews which came immediately from god , they are not comparable to the law of the romans , neither in wisdom nor equity , neither in gravity nor in sufficiency , thus largely he ; ) yet notwithstanding all this ( which truely , being taken pro confesso , is very much for the honour of those lawes ) the common law of england has that specifick energy and adaption to the land of england , as no law in the world hath or can have : and i pray god i and mine , and all the true men of england , may live and dye in the love and under the obedience of it , and of the protectors of it , kings ; and their counsellours , parliaments . and so i end this chapter . chap. xxxi . sed licet non infime cancellarie , nos delectet forma , qua leges angliae in contentionibus revelant veritatem , &c. in this chapter the prince is personated as scrupling the goodness and lawfulness of juries , by reason of the seeming opposition the constitution of them has to the law of god ; for the prince , supposing that god in deut. . . settled the decision of matters upon the mouth of two or three witnesses , does exclude all determinations of judicial causes from any interest in them , but what is of the nature of that constitution , which the prince sayes was a proof according to the law of nature and reason , and not a temporary law in the ceremoniality of it , determining with the jewish polity , which the scholes call vetus lex figurae vel umbrae ; and therefore our lord , who was the dissolution of whatever was not moral , but by his coming abrogated , confirms this to the pharisees in iohn . . and grotius sayes , that this was so generally received that it became proverbial , and so he takes the meaning of iohn . . & cor. . . yea , because the weight of proofs shall not be scanted and want its full advantage , the holy ghost adds two or three witnesses , not therby onely to exclude one , but to take in a third for down weight if need be ▪ and this is the reason undoubtedly why the lawes of nations , and our law chiefly , though they allow two witnesses , good and stanch , proof enough , yet they look upon three as the fuller evidence ; as in company the more the merryer , so in evidences the more witnesses , the more unquestionable the truth of their evidence ; and therefore our lord does not plead prerogative , as he was the truth , and ought to be believed upon his own assertion , but he appeales to the lawyers themselves , who were his great opposites , and critically carped at him , and exhibits himself forinsecally to them , as one that ought to be credited , because his words and works had the testimony of god by miracle ; and of their consciences , by the conviction of them upon what he said and did : and therefore he sayes , having approved himself according to the method of their own law , from the appointment of their own law-giver moses , not to beleive his words thus attested , was not onely to contemne moses , but to proclaime their enmity and malice against him , who , by testimony juridick , was affirmed to be the true god-man he asserted himself to be : this is the princes objection , that in as much as god had set down the way of condemnation to be by two or three witnesses ; and christ the new law-giver confirmed this , and subjected himself to the manner of triall concerning the truth of his doctrine and divinity ; huit legi contraire est legi divinae refragare : that is , to prescribe another method then what god has set , is to wander from gods appointment , and to contradict the wisdom of god the father in the positivity of his appointment , and of the iudge of quick and dead , who approves it ; yea , 't is to set up mortall weakness against immortall power , goodness , wisdom , and soveraignty , which is treason against the soveraign of our soules : nemo enim potest melius aut aliud fundamentum ponere quam posuit dominus , saith the prince in our text ; and upon this doubt , not narrowly or pusilly raised , but breaking forth from reason and piety regnant in him , and evidencing it self in the proposall of its arrest to his gravity , who is able , ready , and willing to enlarge it , by his resolution of the difficulty does he apply to the chancellour ; this is the summ of this one and thirtieth chapter . chap. xxxii . chancellarius , non his quibus turbaris princeps contrariantur leges angliae licet aliter quo dammodo in dubiis ipsae eliciunt veritatem . here the chancellour endeavours answer of the personated prince his expectation , and that in the solution of those doubts which he in the precedent chapter raised , to the discharge of which undertaking he applies himself not with the levis armatura of words , light in their nature , and cheap to utter , for then his reply had been like that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or swallows nest , wherein the poets tell us there is great noise , but no musick no such hail-shot does he from the birding-piece of a bombaste-oratory discharge on the princes reason rampier'd up , and in a kinde of civill hostility against him , with no such mean and triffling lime twiggs does he hope to catch this bird of paradise with : but , knowing him to have a kingly reason , and to answer in a soulary plenitude his majestick birth , and corporall sanctity , poures forth upon him a volley of solid reason and judicious gravity ; by the force of which cannon-shot , so artlily levelled , he doubts not but to batter the breast-works raised against him , and to gaine those towres of opposition , from whence these artillery on him played ; and the better to effect this , he yeilds to the prince in that which is the ground-work of this scruple , that what god has appointed as a morall and fixed rule is irremoveable ; and to wave it , or wander from it is contraire divinae legi , to rebell against the divine soveraignty , which is the highest sacriledge : this he grants ; yet does he hold his owne , in denying the princes inference : for , though the old law does appoint , that in the month of two or three witnesses every word shall be established ; yet does it not take away all prudent improvement of that prescription to the end of it's institution , but under the latitude of that remedy admit whatever after experience shall discover necessary , to obviate after villany the defeat of god's intention in that prescript , to which undoubtedly that law of moses was too short in the letter , as in other things it is supposed to be ; and therefore as the new law being ( as the scholes term it ) lex veritatis ; supplied that in the maine things that concerned the grace of men and the glory of god , to which it's promulgation is the rule and line , so does the lawes of nationall prudence conform to the mosaick norm in the moral and natural rules of it , though they may alter and vary in some explanatory methods , or additions of circumstance adapted to time and men ; the liberty whereof may be conceived indulged to government , by the magna charta of christian liberty , to those notable and noble ends of carrying on order and justice in the world : and , of this nature is the addition of juries in england unto the two or three witnesses , which our law does not do actu dominii , as if it arrogated a power of antiquation in the point of witnesses ( for the law does every thing by witnesses ; where witnesses can be had that are fide digni , which the lawes of god and all nations enjoyne : ) but it adds to witnesses , juries ; nutu prudentiae & sub ratione majoris certitudinis , who upon their oathes and consciences are to judge whether they think the depositions are true , and the witnesses creditable in that they have averred : for , as in bonds , the security men have by sureties bound with the prime debtor , does not make the payment of the debt less , but more sure : so in matters of witness , juries empannelled to hear and verdict a cause in triall , does not depreciate and abate the justice of decisions by witnesses , but enhanse the reputation , and imply the more credit and conscience in them . and hence i humbly conceive the law of england may , on good grounds , be argued a very pious and just law , in that it takes all advantages to promote justice , the great soder of civill societies ; and that not onely by witnesses , which god prescribes signally , but also from that honour he does witnesses , by terming himselfe by that name : iob. . . mal. . . and by terming his holy spirit the witness ; and his holy apostles witnesses : all which proving his approbation of witnesses , concludes the lawes wisdom and justifiableness in allowing witnesses , and without them ( where to be had ) ordinarily doing nothing . but yet , hence is there no ground to conclude that the addition of juries is supererogative ; and not onely more then needs must , but a sinfull supplement to that which is already perfect ; which suspition the chancellour takes off in those words , non contrariantur licet aliter quodammodo ipsae in dubiis eliciant veritatem : ] which is as much as if in other words i humbly conceive his sense had uttered ; that , though there be a variation of the method in some adjuncts to it , yet no aberration from the end , discovery of justice : for , as the intent of god was not the precise letter ( sit hence then the number , two or three witnesses , how false or sordid soever , must have been his appointment , without any limitation , which being the destruction of justice , cannot be the sanction of the great justicer , who is summum jus sine aliqua injuriae macula ; and being contrary to his will in other places of his law ; would imply contradiction , which is odious to god ) so , to keep to two or three witnesses , where they presumed to be true may be otherwise , and not to admit that which may discover them to be otherwise , as juries ( added to them ) in the triall of a cause and judgment on it may , is not against the tenour of the enaction of god , in the maine intent and drift of it ; for that being the discovery of truth , and the delivery of right from all combination against it , is pursued and attained in this way of triall by witnesses and juries . not that the law wholly rests on juries , and decides nothing by witnesses without them ; for , that in certain cases it does , as hereafter in it's proper place shall be shewed ; but because the law introduced juries , first , to clear truth more against falsehood and conspiracy then otherwise it could be : for were witnesses only taken , that might pass for currant which is adulterate , as in that notable record cited by mr. selden on this text , in the bishop of salisburies court at sunning , whereof the entry is willielmus producit soctam suam & ipsi quos producit per se discordantes sunt in multis & in tempore & in aliis circumstantiis , &c. wakelinus producit sectam qui concordati sunt in omnibus & per omnia , & dicunt omnes quos ipse producit pro se , which shewes the use of juries to judge whether of the parties witnesses are most creditable , and accordingly to verdict the matter : another use of juries also there is to prevent the incertainty of judging integrity , and it 's contrary by dubious events , wherein god is not ever pleased to evidence his pleasure to the determination of right , but leaves them to the empire of second causes , from the conclusion of which there is nothing peremptorily collectable , such as were triall by ordeal of fire , which was in use tempore of the conquerour , or by duell , combate , and battel , of which glanvil speaks in those words , per duellum potest placitum terminari , which was antiquated in henry the seconds time , when glanvil , treating of the great assise brought in place of it , sayes , ex aequitate maxime prodita est legalis institutio . ius enim quod post multas & longas dilationes vix evincitur per duellum , per beneficium istius constitutionis commodius & acceleratius expeditur , so that juries coming in and antiquating these , there is patefaction by them to more certain justice then otherwayes was ; all which well weighed amounts to the chancellours position , that juries with witnesses do not contradict the divine constitution , licet aliter quodammodo in dubiis eliciunt veritatem . quid duorum hominum testimonio obest lex illa generalis concilii , qua cavetur , &c. this the chancellour produces to prove that even the canonists and popes with their councils , that cry up the civil and canon lawes and the proceedings of them by two or three witnesses , and will not away with juries , because they pretend their institution is besides the rule and appointment of god in the prealledged scriptures , and the proceedings of nations according to it ; yet even they are by our chancellour instanced in , as proceeding by other methods then two or three witnesses . and the particular case of their variation is in that about testimony against cardinals to make them criminous ; for these cardinals created , whether by pope eugenius the fourth , or pontian , or sylvester , were held the religionis duces & antistites , in the roman church of great authority , creaturae papae , solo papae minores , cardines à quo motus ostii firmatur in claudendo , & aperiendo , &c. cardinals from cardo an hinge , because as the hinge moves the door to and fro , so do these the affairs of the church , and as the heart guides the man , so doe these the mystery of the church and state of christendom ; these then so magnificent prelates were at first but few in number , and of eminent parts and perfections , which made them worthily venerable ; after , when they being found usefull to the interest of the pope , they grew more and mightier , and the pope made what number and whom he would , which made his holiness so strong in the carriage of affairs , that he left almost no room for temporal princes , but all was swayed by him and his creatures ; yet for all his power and pretences , though the cardinals were incardinated and let into the papacy so dexterously that there was no injuring them without injury to his holiness , in pope honorius's time they were all by the emperour isaacius banished , and so abject , ut non fuisset qui resistere debuisset de clero ; for though their institution was good to carry on the amity of the greek and latine church , and to gratifie the greeks , the (a) two first cardinals bessarion and isidore of sarmatia being greeks , and so i think were (b) all the cardinals some time after ; yet when the popes made no bones ( as we say ) of the council canons , but multiplied their number , debased their nature by chusing not for birth , parts , and piety , but for vice , craft , and policy , contrary to the first oecumenical council of basil , then , with his italians whom he mostly cardinalated , did he introduce that magnificent grandeur , which as it arrogates preheminence over princes , so in time becomes a check to his holiness . so that now he that can accomplish the cardinalitial favour , and to be highest in the suffrage of the conclave , is not onely likely but sure to be pope ; and therefore as they can curb and ( in a sort ) awe the pope , so does he claw them to make them his vassals . these , these , are the purpurata mancipia , that as legats à latere , and conciliarii pro capite , do enrich his holinesse , and for these scarlet sons are the canons of the council , here in the text mentioned , made ; though i confesse i can finde no council ( but perhaps 't is my ignorance , for which i crave pardon ) where onely is admitted for proof against a cardinal : for in the second council of rome , under pope sylvester the second , it was decreed ( as much and more contrary to god's constitution of two or three witnesses then juries are ) that a presbyter-cardinal was not to be condemned of crime under . witnesses , a deacon-cardinal under . & summus praesul , that is , a cardinal , not under . witnesses , which canon was undoubtedly overborne by the pope and his cardinals , on purpose to make proof against and condemnation of cardinals , impossible , or not ordinarily feasible ; for in what deed of darkness and subtility ( wherein their eminencies are often parties ) will such politico's as they , be so publick as to admit witnesses against them ; and since without that number they cannot be convict , they are as good as pardoned , that is , not fully accused so as to be punished by degradation , be they never so enormous and scandalous : thus pope iohn the ninth when a cardinal , was gallant , as we call it now , in better english stallion , to the famous roman courtezan , who ruling rome gratified her humble servant with first the bishoprick of bononia , then ravenna , and at last the popedom , which aventine thinks gave rise to the story of pope ioan , this iohn being papasyed by a woman , and so called the woman-pope ; thus the then pope's holiness in anno , accused six cardinals to have conspired his death , and went so far as to almost degrade them for it , which if true , 't was murther before god , but alas by the artifices of the conclave and their adherents , the sentence was said not to be passed legally and with good conscience and consideration of the churches honour , and therefore it was not prosecuted . by all which it appears , that the church , which the prince acknowledged the pope his cardinals and councils to be , ( appointing otherwise in this case then the word of god does in the prealledged authorities of scripture set down ) doth as much seem to go above and besides scripture as the law of england does in case of juries ; since they , added to witnesses two or three , do onely corroborate truth and make it less capable to be deluded and prevaricated with , then upon the single account of witnesses and their depositions , it might in probability be : and this i conceive to be the intendment of our text in alledging this canon concerning cardinals , wherein the rule of god in deut. . is in the letter of it departed from , and yet without the prince's scruple , which the chancellour insinuates to dissolve this his scruple in the case of juries upon no less if not a more rational and equitable account . and therefore as this sanction of the church concerning cardinals , which the prince ( according to the religion of our chancellour's time ) thought unerrable , was not by him concluded sinfull , because an addition of a greater number to that of two or three , and all to promote right ( as was pretended ) to truth , relating to those praesulary eminencies ; so ought not the annexing of twelve jury-men to the evidence , which is to the same end of evincing right and subverting its contrary , to be excepted against , but admitted as that which tends to the design of god in that judicial constitution : and hereupon our texts inference is most rational , if two or three worthy men confirming a testimony make it irrefragable , and not to be ordinarily impeached , much more a greater number , quia plus semper continet in se quod est minus . supererogationis meritum promittebatur stabulario , si plusquam duos quos recepit denarios ipse in vulnerati curationem erogasset . this is relative to the story of the mercifull samaritan , luke . who did not onely come to the distressed and wounded man ( when the priests and levites , who saw his misery , turned the deaf ear to his moans , and the pittiless eye to his sad misfortune ( for the text sayes , they passed by on the one side , ) but bound up his wounds , putting in oyl and wine to purge and heal them , and set him on his own beast , and brought him to an inn , and took care of him ; and to compleat his courtesie , on the morrow when he departed , he took out two pence and gave them to the host , and said unto him , take care of him , and whatsoever thou spendest more , when i come again i will repay thee , v. . this whatsoever thou spendest more is termed meritum supererogationis ; for , because there might be a necessity to carry on the kindness to the distressed person further then the samaritan could then see , or perhaps was then ( being on his journey and having no more then would barely defray his own charge ) convenient for him to moneyly supply , he promises compensation for , when he comes again , that is , upon notice of it ; now this the chancellour makes use of to clear the necessity , that supplements be ( by after prudence and experience made ) to those things , which at their first stabilition could not be conceived of , or provided for ; and this is the reason why more then two or three witnesses are permitted by the civil and canon law in certain cases , as well as juries of twelve added to two or three by the common law , as in the notes of the . chapter i have at large discovered . and therefore though the law of england join juries to witnesses in causes where juries are to be had , and is therefore justifiable , yet does it not suffer causes to fall by reason of the invalidity of testimonies where juries cannot be had , but proceeds in those * cases secundum rationem , and jure gentium , for so it followes . nisi quae supra altum mare , extra corpus cujuslibet comitatus regni illius fiant , quae postmodum in placito corum admiralto angliae deducantur , per testes illa juxta legum angliae sanctiones probari debent . here the chancellour makes good his assertion in the . chapter , itu ut non sit locus in anglia , qui non sit infra corpus comi●atus ; for being to speak of maritime matters and cases that are in debate about contracts beyond the sea , or wrecks and administrations of justice upon the sea , he referrs them to a particular jurisdiction exempt from the ordinary courts of justice , to wit , the court of admiralty , and gives the reason , because the original of the cause was from the sea , which is extra corpus cujuslibet comitatus , and because every cause regularly ought to be tryed in the country where began , unless by a certiorari it be removed to a higher tribunal , he shews , how the fact being upon the high sea , and so our of any county , ought to have and so hath a particular judge to determine it , which is the lord admirall : the court of which is not left to proceed how it pleases , but in the prosecution towards sentence must pronounce secundum allegata & probata , for so his words are , quae postmodum in placito coram admirallo angliae deducantur , per testes illa juxta legum angliae sanctiones probari debent . for the first , what altum mare in this case is , this , i humbly conceive , is thus phrased , not to ●lead into the vast consideration of it , but to resolve the jurisdiction hereby intended ; for mure is called by the learned altum , in regard it is hellno aquarum , and in common opinion , bottomless . the learned have been full of dispores about it , and they say , that the sea is the moist and liquid part of the universe , which they therefore term 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as the philosophers words are . seas , the ancients called the circumvallation of earth , or the girdle of its loynes , which blessed it with moisture to help on fructification , with passage to further civility and trade . the ancients speak variously of seas , the great secretary of nature calls the sea , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is what moses calls the sea in gen . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the gathering together of waters , and that not a bare gathering together ; for though the hebrews have above twenty words to signifie that , yet they express this gathering not by the general word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies all kindes of gathering together , but by a special word importing a gathering together by statute and good warrant , by a law of establishment , by a sanction of power not to be controlled , and decree not to be reversed ; by which god is said to set bounds to the sea , beyond which its surly waves shall not passe : such a collection of waters as of lines in the circle , all which concenter in the sea and make a mass of waters . and though all seas are waters , yet all waters are not sea , for waters are particulars , sea general , waters are in propriety , sea qua such is nullius in bonis , but in occupancy ; yea when the roman empire was expanded over almost the whole world , 't was said to them not unaptly , mare liberum esse , non romanorum , yet there are authorities of impropriating seas ; waters may rise and fall , as the springs that feed them or the rains that fall into them ; the sea , properly so called , is neither added to , nor substracted from ; for it is the sphere of liquidity , and is not in its true notion exhaustible , unless god miraculously dry it up or add thereto by opening the fountains of the deep , as in the deluge . indeed particular arms and toes of sea by bordering on land may through the narrowness of passage swell and augment their depth , because the great quantity of moisture in the channel not being voidable , must needs , while it is in passage raise its bulk , for all bodies must have place , but the sea is vast and so capacious that it ordinary is what it is , and though it gives yet receives nothing from the land but what the land returns of its own : and therefore although some have ascribed originals by way of fountain or spring to the sea , yet the philosopher wholly refutes that , and concludes , that sea is the source of all waters , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and that all rivers empty themselves into the sea , as into their great resolution and vessel of capacity . now the sea being so vast a body of waters that the earth seems to be but an island in it , and being called by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , an abyss of waters , as god is an abyss of mercy , as i take the allusion to be , abyssus ad abyssum invocat , the abyss of misery calling to the abyss of mercy , psal. . the sea , i say , so vast , may well be called altum in this sense , though this be not altogether the sense of the chancellour ; for he here makes altum mare to be that which being extra regnum , is exempt from the ordinary jurisdiction of law , which it would not be , were it infra corpus comitatus ; for where altum mare is , there is the power of the common law , as to tryal of causes , determined : every man that is upon the sea of england is within the allegiance of the king the sovereign , notwithstanding that sea be altum mare ; but yet tryal of all causes that are super altum mare shall be , by the particular jurisdiction of the admiralty , determined , as appears by sundry parliament rolls ; whereby the jurisdiction of that court is very ancient , and as is plain by the lawes of oleron , which r. . made when he was there in france , returning from the holy land , and is every where confirmed in law-books . altum mare then is the proper region of the admirals jurisdiction , as appears not onely from the common consent of books , and the concurrent allowance of time , but also by divers statutes declaring the power of the admiral , as r. . c. . r. . c. . h. . . . eliz. . all which do limit the admiral to the high sea , and exclude his jurisdiction over any cause that is infra corpus comitatus ; for in that case the law gives restitution , as appears in sundry cases , hibernici sunt sub admirallo angliae de re facta super altum mare ; the libel in the admiralty court makes the cause to commence , sur le haut mere , & infra iurisdictionem del ' admiralty ; and so the learned chief justice cook understands our text here , for rehearsing the very passage we are discoursing upon , he sayes , which proveth by express words that the iurisdiction of the admiral is confined to the high sea , which is not within any county of the realm . now then the question is , what is altum mare ? for that must determine the corpus comitatus ; since whatever is not altum mare is infra corpus comitatus , and subjest to the common law and justice of the nation . now altum mare is thought to be where one can see no land on the other side of that he stands ; for in such case where a man may see from one land to another , he is said to be infra corpus comitatus , and the coroner shall exercise his office , and the country take knowledge of it , and the tryal shall be by a jury of twelve men and not by the admiral , because the cause grows not super altum mare : and generally where the water doth flow and reflow it is within the body of the county , as appears in the abbot of (a) ramsey's case , and b diggs his case ; and if a man be slain upon any arm of the sea , where he may see land on both sides , the coroner shall enquire of this murder and not the admiral : and yet there is a good authority for a divisum imperium ( as it were ) between the common law and the admiralty ; for though the low-water-mark be infra corpus comitatus at the reflow , and for causes thence arising determinable by the common law , yet when the sea is full , the admiral hath jurisdiction super aquam , as long as the sea flows . the power then of the admirall is super altum mare onely , unless by speciall commission it be enlarged , as by h. . . . it is ; and the jurisdiction very ancient , not onely since , but before the conquest : for that the monarchs of britain had command of their seas , commonly called the narrow seas , is confirmed by ancient records , not onely of king edgar , who is said , quatuour maria vindicare ; and of edward the third , who in rotul . scotiae of regni sui , sayes thus , nos advertentes quod progenitares nostri reges angliae domini maris anglicani circumquaque & etiam defensores ; but also from sundry other reasons and authorities , cleared in the learned seldens mare claus●m : and if they had such command of the seas , was it not fit they should depute guardians of their power , which they called admiralls , yea , and they did ; and most an end more then one at a time for the nation : for ( saith sir edward cook ) the wisdom of those dayes would not trust one man with so great a charge , page . part . this great officer of admirall was in the saxons time called aen mere al , over all the sea : praefectus maris sive architbalassus ; and the office called custodia maritima angliae ; the latine admirallus most derive from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , à salsugine quod in salso mari suum exercet imperium : but the best derivation of the word seemes to be that the learned sir henry spelman mentions , ex anabi●i & graci connubio , ab arabico amir , & graco 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quasi praefectus marinus ; and the knight likes this well , first , for that homer calls neptune 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as ruler of the sea ; and it was usuall in aula orientalis imperii , to have words bilinguis bujusce modi compositionis ; and that the word admirallus and amireus is used for one in great trust , appeares from sundry authorities by him laboriously quoted ; so that both the admiralty and the admirall have been in good esteem and of great jurisdiction , not only from edward the third's time , as some have thought , because then the court of admiralty had it's solemnity of proceedings but from richard the first 's time , in which and for long since there were admiralls of the west , east , and northern coasts , and of the floates in the mouth of the thames ; but admiralls of england there were none as i think ( but under correction ever ) till the tenth of richard the second ; when richard fitz-alan the younger earl of arundell and surrey was created admirallus angliae . the admiralls jurisdiction is then super altum mare , and that because that cannot be intra corpus comitatus , and so not triable by a jury de vicinetto ; now the high sea is said to be extra corpus comitatus , because the counties are the kings as part of his dominions , so are the narrow seas , but this altum mare in the large notion is said to be mare liberum , nullius in benis : but gods common , in which all creatures claime share , and have the priviledg and convenience , gods blessing and their own industry by help thereof occasion to them , this is the effect of the record quoted in (a) sir henry constable's case ; and hence it is , that because they are the pretensions of all nations that descend into them , they are to be accounted of by the laws of nations , and the offences done upon them , for ought i know , punishable by those laws , which the admirall being judge of , proceeds accordingly by ; and this represents the admirall to be a very commander and prince of power , whose command is not only over the boldest and desperatest mettled men in the nation , but over those that often commit great outrages farr off , and yet are accountable for them when they come home ; so great is the admiralls power , that the whole sea-regiment , next under the king and his laws , is his ; which is the reason that antiquity delegated this power to peers of fidelity and prudence : thus tully in this place was called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , bishop of the sea-coast ; and forcatulus tells us , france highly sets by this officer , and gives him a large proportion of power , and requires a sutable measure of care in him , which justifies the monarchs of england in committing this trust to great peers , and noble heroicks . and may the honour of it ever be blest with such a guardian as it now ( thanks be to god , and our most gracious sovereign ) has , in the noble and illustrious prince james , duke of york , the most august lord admiral of england , whose grace i beseech god long to preserve in health and happiness . per testes illa juxta legum angliae sanctiones probari debent . ] i take this proofe of facts triable before the admirall , to be in this place intended according to the civill lawes , which is , by witnesses , fide digui , oculati testes ; for such were , i think , within the sanctiones legum angliae , when our chancellour wrote ; but since many inconveniences happening ( as i learn from the preamble the statutes of the h. . c. . & c. . ) piracies and outrages committed on the sea , are to be tryed by witnesses with a jury , and this by special commission to the admiral from the king , wherein some of the judges of the realm are ever commissioners , and the tryal is to be according to the course of the lawes of england , directed by the statutes . consimiliter quoque soram constabulario & mariscallo angliae fieri solitum est de facto quod in regno alio actum est . as some mens affairs living in counties , and others sailing on the seas , occasion their converse each with other , and so their trespass one against the other , and against the law , which appoints decisions of these controversies according to the respective natures of them ; so are their injuries done to men in forein parts , which ought to have , and accordingly have appointed tryals and punishments for them : and these are tryable before the lord constable and marshall of england , which i take ( but if i err i humbly begg pardon ) not to be only the marshall mentioned in some statutes under the notion of marshall of the king's house , because the statute of r. . c. . limits the bounds of that to twelve miles of the king's lodging : but the constable and marshall within the text i take to be a more splendid person , the latitude of whose power is rather to be admired and dreaded then described ; for though at first it was according to the etymologie of the two saxon words con and stal , as much as conservator stabuli , or comes stabuli , ( my authority is the learned knight ; ) yet after it became much more honourable , as being applied to the leaders of armies , whom the saxons stiled heterochii , who were the chief men of the precincts and countries where they resided ; and the * french so account of the constable and marshals of france , as of the great officers and peers of france : with us the office of constable-ship is very ancient , as old as the conquerour , who made , whether walter earl of gloucester , or william son of osborn earl of hereford , e. constable is uncertain , but one of them is agreed to be ; in fitz-empress mawds time , miles son to the e. of hereford was constable of england , and so continued to king stephens time ; of this family of bohuns were successively numbred ten constables of england , nine of which were humphryes , who had the office by tenure of inheritance ; from them it descended to the lines of the staffords and dukes of buckingham , as heirs generall to them , 'till by the opinion of all the judges eliz. it was lawfuly descended ( as sir edward cook instructs me ) to that edward duke of buckingham , who was attainted of treason , h. , and came to the crown by forfeiture , and since that time i think it hath ( in regard of the amplitude of the power ) not been granted in fee to any subject , but by commission for a day or two upon tryal of a peer , or such like extraordinary matter ; and when it was resolved of the queen , that an appeal d●●lye in the case of doughty , whose head sir francis drake strook off , and that it was cryable before the oonstable , the queen would not make a constable , & ideo dormivit appellum . the consideration of this officer in the magnitude of his authority , makes the law very punctual to bound it , that it transgress not to oppress subjects under the colour of justice towards them ; therefore , when as this , which anciently had moderate bounds , exceeded them , the statute of the r. . c. , & . bounded it not onely to limits of place but of jurisdiction , so sayes the h. . c. . all the appeals to be made of things done within the realm shall be tryed and determined by the good lawes of the realm , and all the appeals to be made of things done out of the realm shall be tryed and determined before the constable and marshall of england , they are the words of that statute ; from whence i collect , that the common law had alwayes a jealousie of all power that was not conservative of the subjects safety , but might bring him ad aliud examen then the known usual common lawes . and therefore our sir edward cook , speaking of the lord high steward the marescallus here , for though they are two names , and some will have them two offices , the constable in warr and the marshall in peace ; yet in as much as they are in the statutes put copulatively , i take them to be ( as the l. keeper's and l. chancellour's authority are declared to be one in eliz. c. . ) but synonomous . see concerning these things sir edward cook in his notes on the court of chivalry , where much notable learning in this matter is produced . the judgement of parliament in good thomas e. of lancaster's case put to death by martial-law , e. . declared unlawfull by the parliament of e is notable , which sir edward cook recites in the chapter of murder , to shew what courts martial are , when common law courts sit , and westminster-hall is open : see more of the marshal and constable in sir william segar , and those other authorities quoted in the margent , which , if there were need of it , i could extend to an infinity of similar quotations . etiam & in curiis quarundam libertatum in anglia , ubi per legem mercatoriam proceditur , probant per restes contractus inter mercatores extra regnum factos . as the former cases do shew the common law in cases of necessity to admit witnesses according to which they judge , which mr. solden has particularized in his notes on the . chapter of our authour , and our authour himself has herein by the former instances made good , so is this another case in which the same method to judgement is allowed ; and this is called lex mereatoria , and comprehended under lex terre : for this land being opportune to the sea , and of no great circuit ( though it be one of the noblest and capaciousest of islands ) is concerned to promote trade as that bridge which makes a passage to it over the vast seas to the utmost nations inhabiting their coasts , and not onely vents to them native commodities , but takes from them in exchange their growths , and by the proceed of them not onely acquires wealth , and encreaseth the navy , but accommodates the nation with all things necessary for the universal compleatness of natural and politick life ; which zeal of the nation to trade has notably appeared from the reigns of h. . to this day , in which descent there have been above acts of parliament relating to trade ; yea , all acts , that have been derogatory thereto , have been ever noted in this nation to be short lived . these courts then here in our text are , as the learned selden instructs me , such as the law of the staple , called so , because they were places which held and stayed trade and merchants , as a staple doth a lock and thereby a door ; for though before the conquest merchants had liberty of egress and regress for certain time , so not onely the lawes of ethelstan but alfred , as the mirrour relates , permitted dayes and not above , which the . chapter of magna charta confirms ; yet after staples of trade erected , limiting trade to certain places and times , merchants grew discontented and trade fell , 'till by the e. . c. . all staples were determined according to the great charter , and merchants set at liberty to go and come with their merchandises when they saw fit , untill they be forbidden : the motives to the constitutions of staples are set down in the preamble to the statute of e. . c. . to prevent the dammage which hath notoriously come as well to us ( they are the king 's in statute-words ) and to the great men , as to our people of our realm of england , and of our lands of wales and ireland , &c. to the honour of god , and in relief of our realm and lands aforesaid , &c. and cap. . as encouragement is given to merchants to bring in commodities , so assurance of safety to them and theirs , with such festine remedy , as the nature of their being strangers , and from home , requires ; according to the law of the staple and not the common law , which celerity of justice contributed much to trade , so d●d also the laying open of all ports to land merchandise at ; for though native commodities are to be brought to certain places and to none other , as all tynn was to be shipped forth at the port of dartmouth , till r. . c. . which repealed that of the same reign c. . so also that till the iacob , . which repealed the r. . c. . that limitation stood good ; so all goods brought into the river of tyne is to be unladen at newcastle , the h. . c. . all woolls , &c. to be brought to the staple , e . c. . h. . c. . r. . c. . h. . c. . which though they are row determined , yet were long in force , but yet the staple-law stands good ; and as the statute of h. . c. . gives liberty to land merchandise at any port , entring them in the kings books , paying his customes , and such merchandises not being prohibited ; so does it allow safety and speedy justice to all traders concerned in them , and that by the law merchant , which bracton termes celeris iustitia , and which is indulged them as they are common instruments of advantage , and in lieu of the same kindeness natives have in their countreys ; as also for the reason of religion , which bracton mentions , propter privilegium & favorem cruce signatorum , quorum negotia maturitatem desiderant & instantiam : and as the law is in the staple for merchants aliens , and is in all nations of the world , wherein in causes of trade there are proper judges ; so is it on the land for natives in faires , wherein courts of pipouders are , which are established in faires and markets by common law and ancient charters , confirmed by the e. . c. . & e. . c. . which under faires couches this as the justice in them ; but the e. . c. . is punctuall in the court of pipouders , the plantiff must sweare that the contract was made in the time and jurisdiction of the same faire , which done , there is justice to be had de hora in horam , as fast as the dust can fall from the foot it adheres to , that is , smartly and speedily : from hence the words he came with a powder , and i le pay you with a powder , pipoudens , this court is a court of record confirmed by sundry statutes , as in (a) gentlemans and gregories cases is set forth , and the rules of it are such as bartholus mentions , to be equity and right , omitting the niceties and traverses of craft , which do not concern the truth of the matter in question , but give releife to fraud , according to which the statute of eliz. c. . proceeds in the trialls of assurance by policy , which law is thought very beneficial to avoid differences and suits , which without it would be tedious , chargeable , and detrimentall to trade ; for , surely the greatest controversies that arise , is by ignorance of right reason , and resolution to oppose it , in favour to our selves , or displeasure to others , the contrary to which tully commends , as the glory of servius sulpitius , above all the men he knew or ever read of ; for he was not so much a criticall lawyer , who applied himselfe to tie knots and raise scruples , to intricate and clogg causes with dark and abstruse disputes ; but , as a man of conscience be accommodated all causes and cases to equity and conscience , being willing to end more causes then continue them in debate . this regard to equity and speed of justice , is the cause why our text sayes , the law merchant for contracts beyond the seas is allowed ; for the rule being ordinarily that actions must be tried in the county where the cause of them lay , and by free-men of that county , who are in law accounted de vicineto , and this not being possible in cases commencing extra regnum where no county or visne of english men is , yet necessary that some triall should be , the law admits what proofe can be , and therefore witnesses , probant per testes contractus , &c. saith our text ; and therefore as the lex rhodia which vivian comments upon , was most reasonable , to wit , that if a ship in a storm did exonerate it self of some goods to save the rest and the lives of the men , that there should be an average , and all the goods should be contributive to the loss of those goods cast over-board , because they were an expiation as it were for the whole secured . so say i of this proceeding of the common-law , 't is most just ; for that it takes the best course that can be to decide differences , and when it cannot do what it would , yet is excused for just in doing the utmost it can to express justice , for that rule of bartolus is most true , necessity takes away freedom . similiter si charta in qua testes nominantur deducatur in curia regis , processus tunc fiet erga testes illos , &c. this is another case , in which evidence by witness sans juries is allowed ; for , since the norman conquest , that scriptum obsignatum , which the romans called symbolum , tabula ( whence tablina in pliny , for the place where deeds and records were kept , which we call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or archivum , ) epistola , testamentum , chirographum they forsooth must let in charta , in our english a deed. this was ever subscribed with witnesses , not such as we now use , any that first comes , but the best men of the county , and neighbourhood ; and that in perpetuam rei memoriam , to preserve the credit of it alive , even when the witnesses are dead ; men of quality being probably known either by their hands or signets , which they affixed to their testimony . now these , if they came in question , if the parties were alive to prove them , were by them proved ; but , if they were of old date , and free from suspition , upon production of them they were allowed ( every man being as it were a witness for reverend and unspotted antiquity : ) in these and such like cases the law allows , and accepts of proofe by witnesses ; but where the causes are referrable to a proper county , and a jury of the neighbour can be had , per testes solum lex ipsa nunquam litem dirimit , saith the chancellour , adding the reason , because it is the most excellent form ; et remotior à corruptionis periculo , as our text is , concerning the excellency of the triall by juries , which this chapter proceeds to treat of , see the notes on the th and th chapters , wherein truely i have written my thoughts of juries , not , i hope , passionately , but with that gravity which becomes a sober author , considering that legal juries are not made up of simple men , of which scarce foure of the twelve understand the evidence ; so that it may seem rather to be a matter of superfluity then of good policy , to refer a matter to their verdict , when , as they say , no other thing then as the judge taught them before ; stultum enim est id facere per plura quod fieri potest per pauciora , ( as the words of a more learned then ( in that ) wise man 's were ) but juries are , and ought to be made of men of worth and prudence , and when such , they are the readiest way to right judgement of fact of any in the world ; and the mos patriae and ancient triall of england being established by these , no wise and worthy mans mouth is to be opened against them : the rule of law being , as heretofore quoted , neminem oportet esse legibus sapientiorem . o quam horrendum & detestabile discrimen saepe accidit ex forma per depositionem testium procedendi . concerning this see the notes on the one and twentieth chapter , whereby appeareth what dangers may come , and yet justifies in those lands , where this is the way of triall , that to be not onely tolerable but necessary ; for god having in all nations stirred up brave spirits to affect rule , and subjecting to them the less generous ones , gives them so excited , prudence to compile lawes sutable to reason and civill convenience , and to perfect such endeavours as they discover in the use , the fitness or unfitness of them , it must be thought and concluded that lawes being suited to people , and people to lawes , the change of them with introduction of others , would be altogether as inconvenient for , and nauseous to them , as high food is to a swayne , or course diet to a courtier ; the consideration whereof prompts wise men to applaud the carrying on of government in all places by the topique lawes , which ever are the best for those places and persons they were fitted for , and have been prosperously governed by . nonne si quis clandestinum contrahat matrimonium , & postea coram testibus mulierem aliam ipse affidaverit , cum tadem consummare matrimonium arctabitur in foro contentioso , & postea in poenitentiali foro judicabitur ipse concumbere cum prima si debite requiratur , & poenitere debet qu●ties exactione proprìa concubuerit cum secunda , licet in utroque foro judex fuerit homo unus & idem . this the chancellour brings afresh , as a cannon , that by its shot of reason , will ( as he thinks ) through and through the credit of deposition by witnesses , and lay it low in the opinion of wise men ; to wit , that witnesses may make that good in the law which is not such in conscience ; and want of witnesses , that void in law which in conscience stands good before god , who judges righteous judgement , and who considers things as they are , and not as they appear . and this our text referrs to the case of marriage , the most excellent , social , and free life imaginable ( perfect virginity and calm chastity , much professed but rarely attained , onely excepted . ) this marriage is called matrimonium , because it of old was the act of the will and affections , fixing parties upon each other in a constant and faithfull bond of love , cohabitation , and communication of all things each to other . alexander ab alex. tell us that the temple virilis fortunae was the place whether all women repaired that would stand to be chosen , and there they stood naked , that every one might see they had no imperfection , but were such indeed as their choosers took them to be : but from the beginning it was not so ; for the purer ages , though they allowed candidation , yea , and as it were candida veste , the fairest carrying usually the market away : yet there was much sobriety and modest kindness expressed each to other , and these parties were called pater and materfamilias , as much as those that though they had not yet coupled , yet did intend a race of natures improvement from them . for though there have been some who debase materfamilias to justa pellex , yet antiquity in the stream of it did not ; for sulpitius , the oracle of lawyers , makes a vast difference , as much as between a lawfull wife and a mistris of pleasure : and therefore the more reserved authours called these by the grave and venerated name of matrons ; and thus agellius affirms her to be accounted a matron , who was solemnly joined in marriage with a man , in his hand as publickly owning her , and one that with him continued , although yet there were no issue between them , but they in hope and in persuance of it cohabited and communicated each with other : and budaus confirms it , as all i think must do , that write truth . hence is it that not onely the church has this definition of marriage in her forms of solemnization , and in her canons concerning it : but the lawes of nations do affirm the nature of it to a vnisoniety , as appears in the (a) digest ; and as they had their (b) sponsiones , ( it being a custome of old to promise before marriage , and to have some interstitiary time from their consent to their marriage , which we at this day call , fairly promised or contracted : ) so did they express every thing of more then ordinary solemnity by something nuptial ; the heathens had their rit●s matrimoniales , which their priests performed ; they had their dies nuptiales , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the eve to , the day of , and the day after the marriage , and these they called dies nuptiarum legitimi ; they had their locus sacer , and their astantes testes , their ornatus nuptialis , their invocationes & hymnos nuptiales , their munera & canae nuptiales , all things in the paradoe of our times , onely christianity has sanctified them by this transplantation of them into a more sacred soyle . this is the nature of the thing spoken of in the text , marriage , of which enough ; because i have written of it in the notes on the chapter : but the adjunct to it is that which makes the stir here , clandestinum matrimonium , ] such as we call , stolne marriages , when persons either non sui juris do marry , or when they that are sui juris do not canonicè nubere ; this the canonists say is sundry wayes so made , . when it is done without witnesses . . when without all solemnity , hand over head , as we say . . when no publication of the banes has been , and when parents consents has not been had . these , the practices of lucifugous persons , the lawes of all religion and society decla●● against , not as it is an act of the will and affection for ferruminating two hearts into one , and making up such a confort as has all the notes of delight and concent in it ; for so no doubt 't is consentaneous to nature , and approved by the god of nature , by whose donation , the powers of their compact express themselves : but as the act has an appearance of evil in it , and is abused by evil persons , who by it live in scandal and are causal of breach of charity in them that censure them as sinners in their association , which in it self may be , nay is , before god , lawful , consent onely being in soro dei of the form of marriage ; these , together with the marriages of priests , who mostly were guilty of this keeping their marriages close to avoid loss of preferment , knowing that , if their marriages could be proved by witnesses or instruments , their children would be legitimate , caused the canons of the church to be most planted to the battery of this . and in the time of gregory the ninth , canons were made damnative of it ; for so far as any thing is clandestine , so far has it been thought suspicious and uningenuous : so caesar accounts clandestina concilia , and tully , clandestinum colloquium cum hoste , so clandestinum foedus in * livy , and motus clandestini in lucretius . yea our law does not allow clandestine marriage , but disavows the posterity of it ; for that marriage that the law of england allows , is open and authoritative marriage , in the face of the church , by a lawfull minister , and according to the office and form for it appointed , of which the bishop can take notice , and certifie whether loyal accouple or not , and in which case onely the issue , quoad legem terrae , will be lawful . to this marriage then , as inheritance to the issue , so dower to the wife is allowed , and all other matrimonial priviledges , which are denyed in clandestine marriages , because the church and magistrate judges not de accultis sed apertis ; for non observata forma infertur adnullatio actus , as the rule ( i have heretofore quoted ) is , which i the rather note , because stolne matches and libidinous actings under the palliadoe and umbrage of clandestine marriages , has been charged on our * nation long agoe , ( but i hope better of us now . ) for though it be too true that marriage was never under so little practical reverence as now it is ( the more is the pity and the shame , ) it being fashionable to desert the company of their own to attend ( as gallants and mistrisses ) on others husbands and wives : yet , god be thanked , marriage that is honourable amongst all men , is the sanctuary to which all modesty beneath perfect virginity , betakes it self ; and though the sinfull liberty of many gallants may break in upon the severity of his bond , yet on the gravest and greatest part of the nation , that of st. ierome , charged on the ¶ scots , is not chargeable . every man may , and many men do drink of the water of their own spring , so far is the saxon humour yet undecocted in us , that we are for wives , and but for one at a time neither . for though the iews , chaldees , greeks , romans , and other nations had many , yea , though wise king solomon was fascinated by this curiosity , which laid load on his death-bed repentance ; yet with us in england the law has been to have onely one wife at one time , though the statute of iac. c. . first made it felony without clergy . and this respect that the law has ever had to marriage , is the reason that clandestine marriage has been decryed , as that which evil persons have pretended to credit leachery ; and good persons , though they did it upon weighty reasons as to the world , and warrantable as before god , yet did not avoid that censure , which no humour or prudence , as they account this act of theirs , could countervaile . better a thousand times not marry at all then privately , then to one that dares not , or will not be known of it . 't is a slavery which no ingenious minde can content itself to be under , because it is subject to be upbraided , and dares not justifie its loyalty . upon all which considered , the chancellour's minde is now to be learned , and that is , that where the law judges onely by witnesses , that being proved which is less , as promise of marriage before witness , shall oblige ; when the greater ( marriage ) being clandestine and secret , though lawfull and firm before god , may be condemned , and one and the same man , by one and the same judge , compelled to performance with the one , and suffer penance for performance with the other , though that in different tribunals , called fora because the judges sat in the market places which were the most conspicuous and tenacious places , and because thither people applied , the seats of justice are called fora . for as penance may be enjoyned in ¶ curia charitatis , which is the forum poenitentiale he●e , for paying the wife her due benevolence , according to the rule of the apostle in corinth . vii . . ( she that is clandestinely married , not being in the eye of the church and law the wife but a woman that lives pleasurably , and so sinfully with him , because not solemnly married to him ) so may he that has promised be enjoyned to make good his promise in foro contentioso , that is , by action of the case to the person to whom he is affidated , notwithstanding he is married privately to the first , because the second promised has a dammage by the bruit of being promised , and looseth her opportunity with another , and the man that couples with the woman he is clandestinely married to , shall be enjoyned penance for his effeminacy with her ( who , though in truth his own wife ) yet in repute is but his woman . which considered , the chancellour urges this effect of witnesses upon the positivity of their oathes ( which cannot be softned by consideration of circumstances which in case of a jury would be probably in some sort allowed ) to be very hard , o quam horrendum & detestabile diserimen , as his words are , which are an emphatick ejaculation , arguing admiration and vehemence , as if he considered a man thus straightned , as not knowing what to do , which way to take , but to be perplexed , as the leviathan is described in iob , so it followes . nonne in hoc casu ut in job perplexi sunt testiculi leviathan ; prob pudor vere perplexi sunt . this passage out of iob. is in chap. . v. . spoken of the behemoth of the land , the elephant , the words are , he moveth his taile like a cedar , the sin●wes of his stones are wrapped together , which words , though there be some that apply to the leviathan , or whale , yet the streame of learned men understand the elephant , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the creature which cannot be chased without danger and hazard to his hunters . now this beast , though the largest and most robust of all creatures , and therefore a pellican sayes , the ramification of his testicles is purposely expressed to set forth his invincible strength above all creature's ; since the nerves so plashed and entertwined each in other , do confirm and fix the strength of the part in which they are thus complicated ; this beast , i say , is said to be perplexed , the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signi●ying a nerve , by r. david on esay ● is rendred by virga ferrea , because the nerves are in cervice , and makes the body like a pillar of iron or brass , solid and durable , especially when nerves are 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nervi testiculorum , the nerves of those parts which are most guarded by us , because most to be feared in their hurt-taking ; and therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ramifioated , thickned and strengthned by their reticulation : this then i conceive to be the sense of the words , though god had made the elephant of such strength even in his tenderest parts , yet such a straight is he sometimes upon hunting , or other exigent brought to , that his strength failes him , and he growes cold in the nest of his heat , and weak in the element and sphear of his strength ; which applied to the instance in the text , makes good the purpose of our chancellour , that the various effects of actions , as they are proved by witness or not , may distract men of great wit and courage , so that they may not know which way to turn themselves ; but as people in feares and transports , are sorely angariated , pro pudor vere perplexi , ] as the texts words are : for , as between two stooles , we say , a man gets a fall , so between these two rivalls , for a mans company , the man looseth himself , in an uncouth despaire and dissatisfaction , which of the wayes to take , and women to apply to . and this the chancellour charges on the proceeding by witness , as causall of the confusion and uncertainty , but whether so or not , i determine not , since arguments from accidents to subjects do not follow alwayes , for though i know there be no such magick girdle in our law , as boissardus sayes amongst the french is usuall , and approved to dissolve marriages , by incapacitating the parties to act their kindenesses each to other , which is a perplexity , which every unhappy sufferer cries prob pudor upon ; yet , in as much as possible it is , that witnesses credited over-much by juries , may drive a matter to this fatall issue , i will not peremptorily say , that 't is impossible , though i may safely say , 't is improbable any such thing should , and , i think , without president , that tale malum aut diserimen in casu aliquo evenire possit , etiamsi leviathan ipse ca generare nitatur , as the words of the text are ; and so with a recollection of what has passed , and an application of the reason of them to the credit of the common law in this method of juries , he concludes the chapter , gratulating the lawes as victorious after all the eclipses and scrutinies , prejudice in some , and disaffection in others put upon them , notwithstanding all which they do , tanto magis clarescere , quanto cisdem tu amplius reluctaris , as his conclusive words are . chap. xxxiii . princeps , video , inquit , & cas inter totius orbis jura , in casu quo jam sudâsti praefulgere , considero in legibus suis minimè delectatos , &c. this chapter is purely transitional , and framed , by the liberty of dialogue , to accommodate the continuity of the discourse ; and to introduce the chancellour , not so much imperiously commanding ( for that had not well become him though the nonages of princes level them also to their tutour's temporary and disciplinary sovereignty ) as sweetly following the prince with such tuition as might occasion his questions , and such solidity as by answer might resolve them . now , as in comparisons there cannot be a total and compleat correspondence , but in some of the four feet they move upon , they are defective and untunable ; so in discourses dialogique , there is not a direct and strict verity of history and fact in every part of the questionary and to be resolved part , because that ( like chancery-bills ) being formed to discover , is composed of such generalls , as in the answer to them , will comprehend the matter aimed at to be resolved . for , as rivers by circumambiency and circularity of current and channel bring themselves to their center , and the rider on them to his port ; so do questions vagely , if with strength of art proposed , promise proper resolution to what is most material and of consequence in them . and hereupon , though i am apt to believe the prince might answer in the love of his heart and satisfaction of his judgement this personation here , in those words ; video , & cas inter totius orbis iura in casu quo tu sudâsti praefulgere ; ] yet do i , under favour of our text-master , much doubt his privity to the next clause , considero tamen progenitorum meorum , &c. ] because ( as i shall in the next chapter make appear ) i know not whom of the kings of england he could intend here ; for none of them do i ever remember , so little concerned in their own stability as to part with the municipe common law , the firmest bond of sovereignty and subjection next religion , according to which it is framed , and which , in all the severity of it , it affirms ; nor is it ( were there any truth in the story of such mistake ) usual for , or commendable in princes , to mention their predecessours with dishonour , as truely this is , not to be delighted in their own , but enamoured with forein lawes . this , i say , being the subject of this chapter , and so onely the prince's , as by it he is personated in the order of the dialogue , courts me to no long stay on the consideration of it , but serves me for a pass to the following chapter , in the notes on which the fuller display of these matters will appear . satagentes proiude leges civiles ad angliae regimen inducere , & patrias leges repudiare fuisse conatos . master selden on these words confesses , he understands not the prince , and his reason is , because the chancellour here , speaking in the person of the prince , tells of some of his progenitors , who , admiring the civil lawes , endeavoured extrusion of the lawes of the land , commonly used , and alwayes approved best for this nation : and what kings ( saith he ) of england ever desired the laws of rome ? as intimating , that no president can be brought for this averment . but , with leave of that learned gentleman , i think , if due consideration be had to the form of speech , 't will not be strange , that he should put a question at large to receive an answer in point : for the chancellour , being desirous to take occasion to speak of both lawes , and of the conveniencies and inconveniencies of those to good government and order , and coveting a just provocation to bring them in view with reproach , who endeavoured to remove the ancient bounds , and to take off the dishonour from kings , the faults of whose ministers are accounted to them , most an end to their disadvantage , and sometimes to the endangering of their governments , brings the prince in , laying a heavy charge against those he complains of , that so , in the answer the truth may be the more transparent . and therefore the words are not to be taken de facto , as if any kings had so done ; but de more prudentis , who , desiring to make way for this design , does it by assertions , which are not onely postulative of , but important to be answered . for suggestions , that seem in their first appearance wilde and eccentrique , in their just examen cause notable defences and discoveries of matchless advantage , it being in resolutions depending upon question , as in things that men seek for and would finde , they must seek as well where they are not as where they are ; so the depth of wisdom is often arrived to , when questions are made not seemingly conducing to it : and we often finde what we most expect , from that design or essay that we least confide in . as for any that endeavoured to undermine the good laws of england by forein and imperial lawes , they were not of the race of kings ; ( for they are as much honoured , secured , and dignified by the laws of england , as by any other law : and government is as much carryed on , in the point of justice , under the english lawes as any , insomuch that king iames , who was born and bred under the distribution of the civil law , and was of great years , experience , and learning in the laws of nations , sayes , as heretofore i have quoted him , notwithstanding that he thinks he is able to prove it , that the grounds of the common law of england are the best of any law in the world either civil or municipal , and the fittest for this people , thus he ; kings and princes of wisdom and moderation , preferring old and approved lawes and customs beyond new conclusions and models . ) but those that were for novity , and either appeared vain or vile persons , such as had new projects to rule towards , or thought lawes but like rattles , of no solid import to the honour of a nation , non tam comites regni , quam hostes publici , as sarisburiensis terms some evil counsellours in his time ; such were alexander archbishop of york , robert de vere deputy of ireland , michael de la pool earl of suffolk , robert tresilian chief justice , who , in the parliament r. . were by the king and lords in parliament protested against , for endeavouring such a subversion of the lawes as this the chancellour treats of ; see the judgement thereon in mr. selden on fortescue , c. . p. . there is an account in roger bacon , that king stephen made an edict against the lawes of italy , which sarisburiensis , a man of great place and authority both with the king and the pope , sayes , was onely to indict the canon law ; for he mentions it as an offence to the church , his words are these , alios vidi qui libros legis deputant igni , nec scindere verentur , si in manus eorum iura pervenirent aut canones ; and he goes on , tempore regis stephani à regno jussae sunt leges romanae , quas in britanniam domus venerabilis patris theobaldi britanniarum primatis asciverat ; ne quis etiam libros retineret edicto regio prohibitum est , & vicario nostro indictum silentium , sed deo faciente eo magis virtus legis invaluit , quo eam amplius nitebatur impietas infirmare , so he. indeed , saith the learned selden , in archbishop theobald's time both the canons and civil law began to be published ; and its like enough , that going from bec in normandy ( where he was abbot ) to rome for his pall , he might bring those lawes home with him ; and it should seem the then pope took this so heavily , that he by a legate severely increpated him , and told him , as i have it from william malmsbury , non debere illum , qui se christi fidei subjectum meminisset , indignari , si a ministris christi ad satisfactionem vocatus esset , tanti reatus conscius , quantum nostra saecula nunquam vidissent , and he adds , that he seems in a kinde ungratefull in thus doing , ex debito etiam oportere ut ecclesiae faveret , cujus sinu exceptus non manu militum in regnum promotus fuisset . but stephen , for all their bigg words , despised the canons , and commanded none of the clergy to use them , or go to rome to appeal , quia si quis contra voluntatem suam & regni dignitatem ab anglia quoquam iret , difficilis ei fortasse reditus esset , they were the words of alberic de ver. the kings lawyer or justice , as i finde them before quoted . horum revera consilium vehementer admiror . ] and well he may , for the lawes of england make england not a popular state , but an august monarchy ; not dependant on pope , or people , but on god : not elective , but successive , and by constant recognition settled and declared it so ; not subject to absorptions , as the salique law of france , which cuts off daughters and their issue , but as rightfully successive in the line of descent , whether male or female , married or single , of an other nation or our own ; right to the crown takes away all imperfections : no king is an alien , a minor , an ideot ; he that is such is every way accomplished , worthy our duty and prayers . that adage had significancy , quicquid coronatum videris , etiamsi bos sit , adorato ; so that all things considered , and the common and statute law being so subsidiary to the crown , and subsisting it upon such a basis , as nothing but treason , treachery , perjury , and nationall defection can endanger or subvert , i clearly am of the minde , that the counsell , that shall disparage the lawes that yeild such aide to the being , subsistence and glory of regality , should be attained ; for 't is against reason that such a zimri should have peace who thus endeavours to abuse his master , by dishonouring his masters mistriss , the law. but in all times some sycophants have bepestred the eares of greatness , and susurrated pernicious principles into it , which has , by gods just vengeance , been the ruine of the givers of such ill advice ; of this number were empson and dudley , who , contrary to the antient way of trying men per legem terrae , upon a bare information , without triall by twelve men , obtained an act of parliament of h. . c. . to be impowered to determine all offences , against the statutes made , and not repealed : this unjust and injurious act ( they are sir edward cooks words , not mine ) by the forged , feigned , and crafty informations of them , brought great dammage and wrongfull vexation ; and the ill success hereof , and the fearefull ends of those two oppressors should deterr others from committing the like , and should admonish parliaments , that in stead of this ordinary and precious triall per legem terrae , they bring not in absolute and partiall trialls by discretion , so sayes verbatim sir edward cook. for 't is fit that those that attempt to subvert and enervate the kings lawes , should , according to the old writ , ad capiendum impugnatores iuris regis , be carried ad goalam de newgate , which is lex terrae , by process of law , in this case , to take a man without answer or summons , and the reason is , merito beneficium legis amittit qui legem ipsam subvertere int●ndit ; and i wish all that will not take warning by their miscarriage may fare as they did : for , as the lawes have hitherto seen their desire upon their enemies , and by their judgment sent them to their execution , so , i hope , for hereafter they shall : and so the prince ends this three and thirtieth chapter . chap. xxxiv . cancellarius . non admiraris princeps si causam hujus conaminis mente solicita pertractares , &c. audisti namque superius , quomodo inter leges civiles praecipuae sententia est maxima illa quae sic canit , quod principi placuit legis habe● vigorem , &c. this chapter openeth the cause why the prince expected to be answered by him , according to his scruple pre-recited ; and for what concerns the rule of the civill law , quod principi placuit , &c. i shall referr the reader to the notes on the ninth chapter , where , as in every other part of this book i have endeavoured ( by gods grace conducting me ) to demeane my self as a sober author , a sincere subject , an humble christian , and an honest english man ought to do , of that then i have nothing to add , but to pray in david's words , give thy iudgments , o lord , unto the king , and thy righteousness unto the kings son : and then , when the king by this royall donation is redeemed from errour in judgment , there will be no terrour in the rule , quod principi placiuit legis habet vigorem ; for , then he will not judge upon his own advice , but with advice of counsellours , and in the capacity of a regall encathedration , attended with sage and prudent men of all ranks and ages , which makes it placitum non merae voluntatis & arbitrii , sed rationis , consilii , justitiae , as all the doctors agree this clause of their law to import ; and thus sensing it , as it on the one hand waves the confusion of popular suffrages , the candidates to which do cringe and crouch to their voters ; and being their creatures are apt to tempt them to partiality , to gratifie their importunate cravings , which was the inconvenience in the popular government of rome , ) so does it also relate to the absolute and unlimited wills of princes , over whom , though authoritatively and with magistery none have power within their dominions , but onely god , whos 's their life , breath , thrones , power , and soules are , and who with them can do what he please ; yet in these the voice of wisdom advocating , the love of benevolence conjuring , and the reason of policy advising , all transactions by advice and serious consideration ( separate and abstract from passion , and the bewitching transports of it ) do but declare them great to good purposes , and not advantage princes beyond what 's virtuous and safe for them to assume , and for their subjects to submit to . for so (a) glanvill , who wrote in henry the second 's time , ( a happy reign under a most pious prince , under whom justice so flourished , that no man durst be unjust , or contumacious against the lawes ; ) i say , this king , who ruled so potently , because he seconded his power with virtue , did so demeane himself under the liberty of this maxime of grandeur , that ( a ) glanvill , one of his judges , allows this , quod principi placuit , &c. not to be contrary to the common law of england , when associated with the councill of his wise men , his peers and commons in parliament . for , as in the sense of the kings giving life to the preparations and advices of both the houses , it is said , a parliament can do everything , it being the ultimum sapientiae , of which no dishonourable or defectuous thing ought to be imagined ; so in the sense of the two houses counselling the king to pass a law , and he accordingly assenting , quod principi placuit may become an english law , without any entrenchment on lenity , or the subjects liberty , both which are then only endangered , when they are beleagured with power and passion , in the high-noon of which , reason is as at midnight dark and inorient . so long then as god perswades the prince to moderation , and keeps his eyes intent on his dependance on him , whose vicarage his mortall divinity is , the greatness of his power will not provoke him to extend it beyond the line of prudence and piety ; but so to use the prerogative and participation with supernity that he hath , that it may appeare he onely resolves it into the glory of his institutor , and end of his institution ; which is not onely the voice of scripture in the assertion of wisdom . by me kings reign , and princes decree iudgment : but also of those heathen oracles , which by calling apollo , neptune , priapus , iupiter , kings , taught king to act according to the nature of god , suaviter & fortiter ; paternly , with bowells of good will to their weale , and severely to the preservation of authority in all the just and usefull appendencies to it . and since the power of legislation is eminently in the prince , and every humane law depends so upon the will of man , that it not onely is there in origine , but in duratione , as grotius his words are , there is good reason to pray for princes direction in well doing , that they may both further it by their lawes and in their lives ; which if they do desire to do , this quod principi placuit legis habet vigorem will not be too great a prerogative for them . for , though they will easily contemne such shadowes of god , who reverence not that supreme and adorable majesty , in comparison of whom all the glory of men and angells is but obscurity : yet hath he giwen such characters of divine authority and sacred power upon kings , as none may without sin seek to blot them out ; nor shall their black veiles be able to hide the shining of my face , while god gives me a heart frequently and humbly to converse with him , from whom alone are all the traditions of true glory and majesty ; so saith that glorious monarch , our martyr'd king charles . qualiter non sanciunt leges angliae , dum nedum regaliter , sed & politicè rex ejusdem dominatur , & c. of this see the comment on the ninth chapter , where the text being the same with what it here is , the discourse thereon is proper to be recurr'd to ; onely let me hint an instance of the moderation and bounty of one of our kings , who commanded very sovereignly , yet was himself commanded to part with his own advantage for their good . 't is of edward grandchilde of edgar , who remitted the danegeld to the people , which he looked upon as the devils heap , being exacted from the poor subject by violence , and therefore commanded the return of it to the owners , protesting , not one farthing of it so unjustly obtained should ever bide with him ; which i introduce , not as the onely instance of such monarchique bounty and benevolence ( for later examples there are as great as it , the act of oblivion or free and general pardon , &c. not being a lesser but a far greater indulgence , thanks be to god for giving his majesty a heart to do it , and thanks be to his majesty for being so free too , and so constant in that magnificent action , which has , to use the scripture phrase though in another sense , prepared salvation for walls and bulwarks of safety in the loyalty of his people ) i say , i quote not that now , as the only instance of regal heroicism ; but to minde men , that are strait-laced , and think monarchy not so free a government as the republican way is , that greatness of minde directs princes to bound themselves where no bound is besides that of their own fixation ; and that , be the regal power what in the ocean and altitude of it , it can in a mortal man and managery be , yet even this great power , when it is dispensed with an eye to god the judge , ( to whom princes as well as others are , and shall be accountable , and in conscience to justice which princes are to propagate and carry on ) cannot be but beneficial to pious and peaceable subjects ; and that the freest regiments men fancy to live under , will without this restraint either finde occasions by arrogations of advantage to it self , or take occasion of derogation from others , to exercise its power vexatiously . enough then of this part of the chapter , i proceed . quod reges quidem angliae aegre ferentes ] who these were which the chancellour predicates this of , i do not well know ; for though king iohn , henry the third , edward the second , richard the third , and henry the fourth may be as probable to be intended as any , in regard that the chancellour might think , that the rigour of some of their proceedings , transcending the moderate tenour of the common lawes , tended unto somewhat incongruous with politick dominion , and came too near to that which he here calls , libere dominari in subditos , ut faciunt reges regaliter tantum principantes . ] yet that any of them did declare and produce so much displeasure against the native lawes , ( because they were such a sanctuary to liberty and such a mall to the contrary , as libere dominari in our text's sense would be , and shewed so great desire of other lawes by which they might be the more lawless ) as might give rise to this assertion of our text , is to me a riddle . ●confesse the confession of my learned antecessor on this service to fortescue , mr. selden , who sayes , here i understand him not , from him i learn that there was a protestation against forein lawes , and that the king in parliament declared , and that with a plenary concurrence , that the realm of england , unques ne serra rule ne gouerne par la ley civil , which shews , that they ever accounted the patrial lawes most fit for england ; and satisfies me , that there was no signal endeavour in our princes to alter the frame of our lawes , but that this , which the chancellour here insinuates , has an eye more to some particular actions that signified , in the externity of them , some such tendency , rather then any studied and designed scope to such an impossible atchievment . and therefore that h. . thought libere dominari ( in our text's sense ) an unprincely english principle , is plain from this , that though he came in by battel , and recovered his crown by a hot military dispute : yet , pro animi sui magnitudine aleam tim jecit , he waved all titles of arms , and betook himself to his native right , and built up his regality by those durable and firm foundations of law and inheritance , which he would so use , as a king by just claime and right of descent ought to do . and though he discarded not other pretenses as second to this , but kept them to obviate private enmity and publick contradiction ; yet his great trust , next to god , was in the law , which devolving the crown on him , with it brought all perquisites of it , and laid all the obligations ( i write the word with reverence ) on him , to rule more majorum , that is , by the patriall lawes : and how the issuant successive monarchs from him have strenuously propagated this president all men know , that know any thing , and all men must confess , that will owne the truth . for though mistakes and prejudices have given being to some seemingly-unpleasing actions , yet in truth there has been as great alienation in the mindes of our monarchs , from introducing persicam servitutem , ( as tully calls that government which is non modo romano homini sed nec persae cuiquam tolerabile , as lipsius quotes him ) as the parliaments and people of it has had opposition and regret in their natures against it ; and that not onely because the lawes municipe are the secrecy of their own establishment as well as of their peoples freedom , but also because to maintain those lawes they were sworn at their coronation . which truth edward the second made use of , in answer to the lords and others in arms against him , under pretext of their liberty , assuring them , that he would never neglect the majesty and piety of a king , so farr as to depart from his coronation oath ; and that since they had taken arms in defiance of him and the laws , they should be tried by god and their countrey , whom they had disturbed thereby , and not be acquitted by his favour , to whom their hostility was as much as in them lay a dethronement , or at least without mercy the prologue to it . and therefore as i in this , stick at the quidam regum , ] &c. not knowing who the chancellour intends ; so do i at the act here charged on them , moliti sunt ipsi progenitores tui hoc jugum politicum abjicere , ut consimiliter & ipsi in subjectum populum regaliter tantum dominarint ; sed potius debacchari queant , &c. ] this certainly is a very great charge , yet 't is euphemiz'd by the generality of the expression , and the namelessness of the persons it refers to . yet perhaps our chancellour to the other before mentioned , whom he conceived to rule besides the laws , and were thereby censurable , moliri jugum politicum abjicere ] he might mean edward the third who though ( by the stat. regni , it was ordained , that the realm of england and the people thereof , shall not be subject to the king , or kingdom of france ; the reason of which act was , because the kings of england then being kings of france also , the subjects of england might be subject to the king and kingdom of france , and so grow into a government like that of france , which is in the texts words , in subjectum populum regaliter tantum dominari . ] to prevent which , the peers and commons in parliament requested the king to declare , that the kingdom of england never was , nor ought to be in subjection , nor in the obeysance of the kings of france which for the time have been , nor of the realm of france : and a little after , our said realm of england , nor the people of the same , of what estate or condition they be , shall not in any time to come be put in subjection nor obeysance of us , nor of our heires nor successors , as kings of france , as afore is said ; nor be subject nor obedient , but shall be free of all manner of subjection and obeysance aforesaid , as they were wont to be in the time of our progenitors , kings of england ; so declares that statute : notwithstanding which statute his fingers ( are thought by some ) to 〈◊〉 after something in the french government here . for though in the six and thirtieth of his reign he passed an act at the instance of his parliament , that pleas and records of law , which till that time were in french , should henceforward be pleaded in the english tongue , and enrolled in latine ; yet he did at that time , as walsingham writes ( though i confess no such printed act is in anno . ) endeavour reducement of the commons a la mode de france ; no man was to wear rich clothing but he that could spend . l. a year ; and the husbandmen and day labourers should not eat nor drink daintily : which though it was a fruitless constitution , it being free in england for men to wear , eat , drink , and live in any reasonable proportion , to gods mercy , in the blessing of their industry , and the discretion men shew in the managing of it ) yet it was suspected to be some little experiment towards a more plain change : but whether this were any inducement to the chancellour thus to write or not , i cannot say , onely somewhat historically true there was , which occasioned this averment of the chancellours , who by this moliti sunt pr●genitores tui hoc jugum politicum abjicere , & ipsi in subjectum populum regaliter tantum dominari , sed potius debacchari queant ] did not intend to blemish the predecessors of his prince , for that ought not to be suffered , as king iames of happy memory , the once learned deceased king of this land , counsels not to permit , suffer not both your princes ( saith he ) and your parents to be dishonoured by any , especially sith the example also toucheth your self , in leaving thereby to your successors the measure of that which they shall meet out again to you in your like behalf , thus that king. no such intent , i say , had our text-master , but his aim being to press on the prince the love of the lawes , he produces all those instances of discouragement to the contrary , from consideration of the naufrage princes have been incommodated by , who have least adhered to the national laws , and lain in their affections loosest from them , as did edward the second , whom peirs gaveston so misled , that , though he loved gain better then iustice , and his own profit beyond the common profit of the realm ; yet was so favoured by the king beyond measure , that he led him into very praeterlegal courses ; so did edington , treasurer to e. . who to advantage himself did not care to embase the coyn , whereby every thing growing dear caused much murmure in the nation ; for that it not onely burthened the subject , but dishonoured the crown , in that which is one of the glories of it , the coyn. and therefore our chancellour , writing thus to the prince , does not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , write beside his text , as those musitians do err in their art that do rave extra cantionem , but he keeps in these notes of good counsell close to the duty of a grave counsellour and a good subject , who , intent on his duty , proposes to his prince such studies and wayes of politick government , as may make his government paternal in his lenity , and loyal in his subjects obedience ; for well he knew , besides the provocation of god and the hazard of the prince's peace , the contrary thereto does but betray seduction and transport , which is the greatest abatement to the glory of a monarch of any thing possible to diminish him : and when he has done all he can to make good his first departure and eccentricity , his conclusion towards serenity will be retractation , which had edward the first foreseen , he would not have broken the act of of his reign , by laying unusual taxes without consent of parliament on his subjects , which occasioned their murmure and disquiet , produced his passing the act de tallagio non concedendo , anno reg. which , though it were acceptable to the subject , yet did not advance him so high in their opinion , as forbearance to burthen them , of which they could be easied no other way then by such an act , would have procured him : which the chancellour , ( no aristodemus who had been seven years at athens and yet was altogether an infant in strength ) no such fruitless student or traveller but a man of great sageness and conscience , makes forth to the prince by the just measure of government , according to the law of nature and the comments of national practice and just constitution upon it , in a discourse which he purposely penned and termed , which though i have never seen , nor could i hear of any that ever saw it , yet was in being long after his time : and for which , as this , and other his works , men do honour fortescue in the words almost that the oxford oratour did learned cambden , velata lugent iurium capita , ille velum detrahit , occulta stupent naturae mysteria , ille aperit , dignus unice qui coelo à consiliis adoptetur , & sacer fiet iurisprudentia arbiter ; yea , as the most ingenuous deschartes does our matchless dr. harvey , as ( the first he that gave rise to the circulation of politick bloud in the body of the english government ; none ( i think without partiality ) ever before him giving us so full and succinct an historical and rational account of the english lawes and government , as he did , who , as he was a great states-man and lawyer , whose many years , generous education and experience , had instructed him in what was knowable to a matchless accomplishment , so was he a very just and consciencious christian and english man , whose influence on his prince spent it self in nothing more then in confirming him in the reason and love of the lawes ; for , as wisdom and experience enables to give good counsel , which doth not only make monarchs prayed for , and praised while they adhere to them , but conjure subjects to obey , in and for the lord , their governours so set over and so ruling amidst them , this is the effect of that part of the chapter which treats of those things , politice regere & regaliter dominari , as they are pourtrayed out in the governments of the kings of england and france : but because concerning this i have written in the notes upon the fourteenth chapter , i conclude here , yet still following the chancellour , who to make the government of england , under its gentle and paternal monarchy , appear glorious , compares it with the government of france , which he accounts more despotique , and so less indulgent , as in the following chapter is set forth . chap. xxxv . reminiscere ( princeps divine ) qualiter villas & oppida regni franciae frugum opulentissima , dum ibidem peregrinaris , conspexisti . this chapter treates of the condition of the french subjects under the high and mighty government of the french king , who governing his people not according to the ancient constitution of france , by a generall assembly of the three estates , the clergy , nobles , and people , by whose sanction every one was bound , not the king excepted : ( i say , after albergatus no meane authour ) this way of government being after a long continuance changed , in lewis the eleventh's time it was made capitall ( not onely to endeavour , but even to word the restitution thereof . ) france and the people thereof become ruled by armies and counsels of power , in which only royall will and pleasure did preside ; this being the condition of france in the infelicity of her subjects crushed and crumbled into nothing by the hard hand of power unallayed , and unveluetly lined by the lenity of politick government mixed with regal . the chancellour ( who was ever bred up under our paternal and divine mixture , which he treats of in many chapters , as the government which approximates that of god , and of paradise , if man had continued in innocence ) mindes the prince of what fruit he ought to collect from travell , and how great advantages to intellectuall accomplishment his pilgrimage in france gave him ; since , while he was at leisure to observe ( being discharged from the encumbrances of business , and pomp of life ) he might , and ought to lay the foundation of after wisdom in the observation of present occurrences , which , because those of the government and people of france ( the place of his unpleasing present abode . ( for , who can leave england , the happiest of islands and nations if it had one publique spirited man in it , as the wise abbot of escalia adieuing it , said , without grief or regret ) were most contiguous to him ? he humbly addresses to him the recollection of himselfs concerning those discoveries of his travell , which may facilitate to him the truth and importance of his chancellours arguments , in behalfe of englands constitution and lawes , here in compare with them . now , though i well know comparisons in governments as well as in persons , is no further discreetly practicable , then is civill , seasonable , and necessary , which restraints and modifications i am resolved shall bound me ; yet must i crave leave to do right to mine own native countrey , and her most admired government , lawes and monarchs , which according to all authors and confessions is the most free and fatherly , and to disclaime all admiration , or ( as to my private affection and sphere ) admission of any thing which is enervative of it , or in any degree tends to the eclipse of the glorious monarchy herein by god fixed , which being thron'd in righteousness , is , i hope , established in the blessed posture it is in , for this world's eternity , as i may so say , or in plainer english , ever to last in the line of that majestick family , that now ( blessed be god ) rightfully and royally enjoyes it , till shiloh comes the second and last time to iudgment . this then premised , as that tender of affection which kindled in me from my text-masters spark and flame in this chapter , was not to be stifled but publickly owned as a signature of my loyalty , i proceed to follow him in his method , taking the augmentation of england's lustre from that comparison of the state of france , which our chancellour here represents . regni franciae frugum opulentissima ] this is that part of gaul which is thought denominated from francus , son or nephew to hector , who , after the destruction of troy , about the year . is storied to be chieftain to the franconians , a german-people , who , being stirred up by the narrowness of their own border and the desire of a more convenient abode , moved armedly into gaul , and being prosperous , sat down in that part which is between the river scaeld and sene , and thence was called france or gallia comata , from ( i suppose ) its fertility and abundant succulency of soyle . i or though i know pliny tells us all gaul was called (a) comata , yet this particular noble island of it was specially so called , because the eden and flower of all the land : and this the text complies with , in that it terms it frugum opulentissima ] two words very comprehensive and purposely phrasive of the latitude of abundance . for fruges ] is a word that contains every esculent and pabulary thing ; varro derives frumentu● à fruendo , because by food men enjoy themselves in a plenitude of health and strength , (b) others determine it , à frumine eminenti sub mento gutturis seu gurgulionis parte , qua cibus in alvum mittitur , à ferendo cibum appellari ; whence soever , sure i am 't is used in authours to denote plenty and abundance . opulentissima here ] so locuples frugibus annus in horace , pareus frugum tellus , gravidae , letae , maturae fruges in virgil , foeta frugibus terra , cererem fruges appellamus , unum autem liberum in tully ; all which applied to the text's sense , sets forth france as a noble country : and indeed , such it to be , i my self have as well in a good part seen , as more fully from the best authors read . pomponius mela , though he makes it no india , that it produces pismires as bigg as little doggs , honey running down in streams , woods full of wool , reeds laden with sugar , and vines with clusters of grapes incredible ; yet he terms it , (c) terra frumenti praecipui & pabuli ferax : which is the reason that though france be but a part of gaul , yet tota illa pars europae , &c. that most noble part of europe , heretofore gaul , is now called by the name of a little spot in it , france , so saith cluverius . and therefore those commendations that the natives give it , are not besides the truth altogether . bu●●● , a most grave and learned french man , writes of it elegantly ; and when he has asserted it of a clement air , productive of things good and plentifull in their kinde , concludes thus , in ea summum liberi patris cum cerere certamen , ut vini nobilitates non possis sine nomenclatoris opera numerare . which made maximilian the emperour wickedly , and with prophaneness too great for a christian , say , that if nature could bring about his design to be a god , he would be that god ; and then by his will , he would pass his divinity to his eldest son , and his second son he would make king of france , as supposing it the second preferment to that of his fancyed godhead . add to this what our most accomplished historian , and late deceased country-man , dr. heylin reports in these words , the soyl is extraordinarily fruitfull , and hath three l●adstones to draw riches out of other countryes , corn , wine , salt ; for which there is yearly brought into france . l. sterling , and the country so full of pleasant fruits and vines , that never eye beheld a fairer object , so he. i say , add this to all the rest , and to that of strabo which rosellius quotes , and there was good reason to say , france is a country frugum opulentissima . ] regis terrae illius hominibus ad arma , & eorum equis it à onusta , ut vix in eorum aliquibus quam-magnis oppidis tu hospitari valebas . this clause shews france had need to be such as it is described , because it has such armies in pay in , and moving through it ; for as st. clowis the chief founder of that government is storied by the histories of france to atchieve his greatness , the pedestal to this , by such artifices and practices of unchristian policy , as i forbear to name ; so have many after governours there carried on their grandeurs by fierceness and might of fury . so that not any lenitive dare be offered to soften the pleasure of the french king , but his will must be the law , which albergatus confirms me in , who writes after the politick opinion , ab ejus arbitrio solo omnis & belli & pasis deliberatio , &c. tanquam verus monarcha solus omnium dominus , &c. which uncontrouledness of power , because he findes men at arms properest to advance and establish , to these does he give the civil spoil of the land , that is , power to propagate his pleasure be it what it will , and opportunity under the pretext of that to do what they will with the poor peasant , and drudging country-man , who by these homines ad arma are said to be burthened . onusta ] not somewhat charged , as by pilfering and stragling numbers of loose people any place through which they passe , will be ; but onusta ] a word of number , weight , and measure , having all the dimensions of grievance , as full of burthen , not onely as we proverbially say , as an egg is full of meat ; but as a ship is when stowed to its full lading , so onusta frumento navis in tully , when a mariner knowing , corn to bear a great price at the port he intends for , crowds as much as his bulk will bear ; onustus praeda , when a souldier has so much spoil that he even breaks his back with the portage of it ; tergum vulneribus onistum , the description of a souldier whose breast was not onely pierced standing , but his back all wounds when flying ; onustus cib● & vin● , when a mans stomach and head is so overcharged , that he is fit for nothing but a bason and a bed : these are the notions of the onusta here , which points out france so charged and surcharged with these cavaliers , that there was no room for any thing but these homines ad arma , ] that is , horsemen , for so our chancellour intends to express the king of france his strength by . for though we read of viri ad arma nati in lipsius and others ; yea , though men at arms in the venetian history signified fusely all souldiers , shute p. . yet in our stories and laws , according to which , together with the common notion of them in france , our chancellour went ▪ viri ad arma are onely horse-men , and so besides this in the text , & equis ecrum , ] other stories understand them ; thus thomas beauchamp earl of warwick is by walsingham said to encounter contra ducentos homines de armis , and homines armorum a little after ; so the same authour , writing how e. . overthrew philip of france , adds , with many nobles and barons , with two thousand men called , men at arms. these , i say , being in so great measure did not onely terrifie the people , but make the receipt of strangers in great towns as homely and scarce , as the safety of them on their travels questionable . now this the chancellour remembers the prince of , to raise in him a love to the politick , and yet imperial government of england ; which , though it be seconded by force to suppress rebellion and resist invasion , yet is founded on general consent , and parliamentary recognition . so that what seneca writes of augustus is true of our monarchs , that they well deserve the name of parents , who are so tender and benign , that their subjects good is more cared for by them then their own greatness ; so that if their power and their subjects happiness ( which is ever best in their respective conjunction ) could be separate , which is not possible , their kindeness would carry them rather to wish their people happy then themselves great : yea , so immortal a garland is it to the heads and hearses of meritfull princes , that it will bud a fresh blossom of glory to their memories when dead in person , though it deny any ornament or addition to living loveless ones . which instance , to wave forein presidents , is evident in the reigns of two of our monarchs , edward the first , and queen elizabeth : the former , at the parliament of the seventeenth of his reign , was besought by the peers , prelates and commons fully there in obedience to him convened , to renew the confirmation of the great charter and charta de foresta , according to what he had promised , but he stood off a long time ; at last , being pressed to perform his regall promise , he did it with a salvo iare coronae nostrae , which the whole parliament took so heavily , that they returned home unsatisfied : and the latter , q elizabeth , so tempered her subjects , between awe of , and love to her , and so dreaded any appearance of violence , other then that of her imperiall , and necessary legall influence on her subjects , that she is in no story charged with any act , but what has a defence of motherly tenderness , as well as majestick courage in it . though then such like powers of homines ad arma be not used nor approved of in england ( except upon extraordinary occasions , when discontents and parties , that will not be fairely reasoned , and gravely lawed down , must be pessundated by the terrour of them ; ( this kinde of devil being not like the gospell devil , cast out by prayers and teares , unless they are associated with force and punishment ) yet in france they are , and without them the plebs would be but ruleless ; and therefore necessity , that has no law , calls for these homines ad arma there , and what their being in abundance any where can occasion better then rudeness and licentious outrage , let the (a) authour inform us , who sayes , the neapolitans , millanois and sicilians , who have had triall of both the spaniards and french for their masters , chuse rather to submit themselves to the proud and severe yoke of the spaniard , then to the lusts and insolence of the french , which if they were such as denied even in towns to traveller , and that a prince , vix hospitari ] that is , hardly lodging ; what churlishness , to say no worse , do they express to meaner persons , and their own countreymen , when they are more out of sight . vbi ab incolis didicisti , homines illos , licet in villa una per mensem aut duos perhendinaverint , pro suis aut equorum suorum expensis soluisse aut solvere velle . this is a further instance , not of the miseries of a warr ; for , if an enemy had done this , the people of france , sufferers under it , might have said in the psalmists words , if it had been an enemy that had done this we could have borne it , but it was ye , our countreymen , our friends and our acquaintance , and this is that which renders it intolerably afflictive . for as much as the poor peasant has nothing to live upon but his labour , and a high rent , and payes contribution to the kings army , and that in so plentifull a measure , that the revenues of the crown , to defray the charge of government , is (a) counted as vast from that very kingdom , as the romans before the conquest of mithrydates , and the third expedition of pompey had from all their empire ; yea , so absolute is the soveraignty of their king , and so content are they to be what he pleases , that he imposes nothing but they submit to , and applaud the hand that puts so sore a burthen on them ; which budaeus notes as a virtue in them , so meritfull as nothing can be more : so doth * cominaeus , adding , that it is unjust and inhumane , that a prince , having such obsequious and open purst people should press them beyond their ability ; it being much more faire and generous to smooth them into a willingness by gentle invitation and reason of love ; quaem imperiosa agere pro sua libidine ; that is , then to screw and force by power and feare what they have , and he pleases to command from them , thus be ; which well considered , as it layes load of infamy on those , that when there is but one harvest and crop in the year , from which profit and subsistence is gained , exact unlawfull and unreasonable contributions all the year long , and that without consideration of what the payers suffer , and the receiver is by his officers deceived of ; ( of which hybraeas the orator told antony ; asia has paid thee , noble cheiftain , two hundred thousand talents , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. this , if thou hast not received , call thy collectors to account , to whom we have paid it ; and if thou hast had it answered thee , since tho● canst not give as two crops , and two returns , exact not two tributes , each of which answers , or rather exceeds the utmost we can render thee . ) as , i say , it accuses the imposers of much mercilessness , so it renders the imposed miserably poor and cowed ; for our text sayes , they do not onely perhendinare , ( a word lawyers and historians use for stay , thence perhaps the word enn or inn , which is the stay for travellers for a night or two ; so walsingham uses perhendinare to denote a stay , magnates dutem apud sanctum albanum cum suis armatis exercitibus per triduum perhendinantes — ; so that perhendinare here is not onely a chargeable , but a long stay , per mensem aut duos menses ; and a loosing one to put a further greivance , as the text sayes , they pay nothing at their departure , neither for man or horse , which is not onely the allegation of our text , but the complaint of learned cominaeus a creditable knight , who sayes lamentingly , that the oppression on the poor countrey-man is very great , not onely by the taxes that is unreasonably leavyed upon them ; but ab equestribus etiam cohortibus , &c. but from the charge the cavalry , that lye on them , occasion , whom they not onely eat up , but abuse licenti●usly ; nor are they contented with what growes on the farm and field , but compell them to travel for delicater dyet then at home they have : and when they are gone to get them dainties , endeavour to abuse their wives and daughters to their lust , thus cominaeus ; which is , what follows in our text. sed quod pejus est , arctabunt incolas villarum & oppidorum in quae descenderant , sibi de vinis , carnibus & aliis quibus indigebant , etiam carioribus necessariis quam ibi reperiebantur , à circumvicinis villatis , suis propriis sumptibus providere . this not to be contented with what is in house and at hand , is one of the unwelcomest qualities in a boarder , even though he pay well as to the value and time ; but when one comes on free quarter , and on charity , ( as government ought to think they do that come upon anothers propriety , and yet are courteously treated ) then to capitulate and indent what they will and will not have , then to take and leaue what they lift , and to call for what is not to be had but with trouble and charge , is not onely uncivil but unreasonable . yet this is the condition of the french souldiery , who do not come , as our country men have in many places ( even during this late unnatural commotion ) done , with caps in their hands , and carriages of humanity and gentleness ; but with stern looks , drawn swords , cock'd pistols , damn me , and all horrid oaths of hell in their mouthes , and when they are quartered , so continue their imperiousness , that 't is hard to live in the house with them unstrapadoed , if not murdered . this irregularity , which often frightens inhabitants from their houses , and ever makes their houses terrours to them , is the effect of ill discipline and want of pay : for had they whereon to live and pay currantly , they might be kept to the stricter conformity ; but when live they must , and money they have not , the officer bears with them for his own peace , which to prevent , as the plague that infects countries with ill will to souldiers , the * romans took a course to provide dyet in kinde for their souldiers , summer dyet from april . . to septem . . and the winter è converso , which dyet was two dayes bisket , the third day softer bread ; one day wine , another day vinegar ; one day bacon , and two dayes mutton , and by this kept they them lusty and vigorous , yet temperate and civil . for though i know to keep up the spirit there must be good dyet , and enough of it , such as is flesh , wine , strong bear , and other changeable food ; yet that men should be their own carvers at anothers cost and table , and make the giver a vallet to their curiosity and intemperance , is that which france onely its poor subjects are abused by : we of england , god be blessed , do not understand other then by hear-say and reading . for though in ireland from edward the second's time , when the earl of desmond commanded in chief , the damnable custome of coign and livory was there set a-foot , and continued to h. . his time , when , by the statute of h. . c. . it was destroyed , for that by pretext of it the commanders of the army exacted from people horse-meat , man's-meat , and money at pleasure , without ticket or satisfaction : yet ( times of flagrant warr onely excepted ) were such rigorous courses never in practice with us here ; nor in times of warr were they justified any other , then by necessity and want of pay . so far is our licentiousness from the constant temper of the french , that necessity onely works that seldome and skulkingly with us , which choice and no temptation , but that of ill humour and inclination to vice and rudeness , evidenceth boldly in them . and since the government of france is supported by armies and garrisons , and those so numerous , that charles the ninth is reported to have horse and foot of his own nation , besides horse and foot of swisses , germans , and other nations ; and lewis the thirteenth is storyed to have at once five royal armies on foot , keeping men in pay many years , rigging ( 'tis in dr. heylin , but i ghuesse it the errour of the press ) ships for sayle and service : yea , for as much as the kings of france so depend on the fidelity of the souldiers , there is no relief for the poor peasant and country-dweller hopeable , but they must have what they will , though to procure it they do arctare , ] put the purse of the poor provider into little ease , and though he pawn ( as it were ) his own skin , bone , body and soul almost to purchase it ; for , they must needs go that these gallants of fury drive , whose violence has career enough to precipitate even dulness itself , and to make it fly with the wings of fear to avoid the talons of their fury . et si qui sic facere renuebant , concito fustibus caesi , hoc agere compellebantur . ] this shews , that must is in france not onely for the king , but for every horse-man , who , if he be but mounted and become a man at arms , thinks himself absolute , holding his office by the scepter of his batton , which is so nimble , that 't is no sooner a word but a blow ; and that upon his head who is de jure head of him , while in his family and under his roof . now these fustes , with which on unwilling , because ( god knows ) unable hosts , they do execution , i take to be no tesserae hospitales ; nor can the ruffian , that thus vapours and fumes , say with him in plantus , deum hospitalem & tesseram mecum fero : nor do these hospitium renuntiare , nè hospitii jus violarent , as tully sayes the custome was ; for this in them had been a grace of ingratiation , which would rather have been thought a prodigy then anything ordinary , and fictive rather then real . i say , i take this mall of their uncivil execution to be no earnest for their welcome , but an intimation of that club-law that they hold their interest in their quarters by , and therefore while that is up , the housekeeper is bound not onely to the peace of good words , but even of willing looks ; for if he shew any disgust of his guests pleasures , strait to the lace he goes , which does so terrify them , that they are fain to take injuries contentedly , and to give thanks for being eaten up , and out of house and home , as we say ; for so are these horsemen flush'd with their tyrannous absoluteness in their quarters , that , to use cominaeus his words , no reason or humanity can restrain them from injury and violence . ac deinde consumptis in villa una victualibus , focalibus , & equorum praebendis ad villam aliam homines illi properabant . this continues the misery , 't is general , every part must bear its proportion ; these curriers do circuit it to obtain the fattest prey and the plentifullest provision ; these clyents to venus and bellona , the hot goddesses , are all for dyet and drink , that in the vigour of them reach the utmost extents of their flaming constitutions , which vice rather then nature hath so accended , that nothing but cold and hunger can reduce . rather therefore then they will want these cherishings of their pleasure , by which the wolf of feebleness and dispiriting is kept from the door of their moving tabernacles , they will , as bite close while anything is to be had , so change their pasture when it begins to abate , victuals of all sorts they will have ; for though the house-keeper , sea-mew like , must live upon the spuma marina , the dew ( as it were ) or nothing : yet these 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 must have first and second course , all sorts of things victualia ] quia vescuntur ab hominibus , they must have speedily , as soon as they call , willingly without regret , plentifully without scant , and seasonably , according as the nature of the year ushers in variety of dyet . and as food , so fire must they have , focalia ] for this , as it is as denominative of an house , as ara is of a temple , and as much to the completion of entertainment as meat is , ( since without fire and candle , which are focalia , what comfort have men in entertainment . ) i know focalia has other senses in authours , the operimentum colli & faucium is so called by quintilian ; but the greeks applyed the word pugillaribus & luctatoribus , which turnebus notes as well as others : yet our chancellour by focalia intends those things that appertain to fire , which is best when 't is in the chimney ; and thus it is near of kin to the ancient's focaria , sier to the word fornicator , who was servant to the baths and fornaces , he that heated them , which because he ever kept hot , he was termed fornicator ; thence an old fornicator we call a man of years , that when he is past action of folly , yet is speculatively , and in word , filthy and obscene . et equorum praebendis ] this is to express horse-meat , not onely pasture and herbage , but provender , hay , straw , which are all prabendae ; because they do in fructibus consistere : and such grass , hay , and grain being , they are termed equorum praebenda , though i know praebenda in the plural number in the canon law has another sense , according to what the ancients held the residentiaries in religious houses and cathedral churches , enjoyed to supply religious pilgrims and strangers that came to them with testimonials , and agellius extends it to all necessaries for an army , when he sayes , ventidius bassus being straitned , magistratibus qui sortiti provincias fuissent , praebenda publicè conduxisse , these , and other large notions of the word being not to the chancellour's purpose , i keep myself to that sense of praebendae which is obvious , and respects horses in armies , whose quarters these blades of buff and fury do change as they do their own when they impair , according to the old proverb , love me and love my horse , which love to their horses they best shew by putting them into good pastures ad villam aliam homines illi properabant , cam consimiliter devastando . ] these flying tormenters , like fleas , skip every where , biting close , soon in and out of places , as they said of charles the eighth's expedition in and out of italy , try they will before they buy ; yet not so happy the poor peasant , to have things bought of and paid for to him . eat and drink and wench and rave they will , but a penny they will not part with in payment for what they take , nè denarium unum pro necessariis , sayes the text. and this ubiquity of theirs , though it terrifies all the country , yet it ruines it less , and impoverisheth it , as it were , more justly , every part alike . no angle of the country that 's good for any thing but is a praebend for souldiers and their horses ; yea , and for somewhat more rapacious and bloudy , their wenches , called usually sucklers and laundresses , which the text terms concubinae , a word more press then meretrices ; for those are common to the seisers be they what they will , first come first served , when these are a sort of loose proprieties , pretendedly loyal to their own mates , but extremely disorderly and villanous . yet these , though forbidden by the strict rules of warr , are suffered to attend armies , and are so influential ( being the baggages that attend the luggage , lumber , and heavy draught of the army ) that they are taken care of by the quarter-masters , and are as curious to be pleased as any : ●yea , being vitious women and warped from modesty , are the most beastly and pestilent enemies to the modesty of their own sex that can be imagined : yet even these , so sordid , so nasty , so troublesome , do they constrain their quarters to receive in magna copia , ] in great abundance ; yea , for these as well as for themselves do they compell the inhabitants of the vill● they come to and stay in , to provide all necessaries , not onely food and fire , but socculariae ] genus calciamenti à sacco deductum , a shooe like a slipper with an heel , which we call a sock , after the likeness whereof it was made : the comedian tells us as well of risus socci , as of luctus cothurni ; but socculus the diminutive , suetonius writes of . caligis ] this is the boot-hose , or legg , or short stocking which the souldier wears , hence called caligati milites ; and though caliga properly signifie regumentum tibiarum militare , the cover of the military pipe , suppose the coronet or fife ; yet it being of likeness to a hose signifies that . this caliga , or military calciament , gave the name to cajus , son to germanicus the emperour , who was called caligula , quia manipulario habitu inter milites ' educebatur . vsque ad minimam carum ligulam ] not onely food and fire , washing and lodging , shoes and hose , but laces , and every utensil about these fire-brands , must the poor peasant finde ; which makes me believe , that either france is all gold , or the peasant all dross ; for , unless whatever he touches be coyn , he cannot but be as bare as a louse , who has thus many riflers of him successively each to other : and therefore no wonder they are poor spirited that are thus harrassed and outed of all ability to live handsomely or lay up any thing for their children . alas , poor souls , all their thoughts are how to please and progg to live , the gayety of life they neither know nor desire , all that they have to call their own is an house of children , a wife horridly nasty , an house slenderly furnished , a back barely covered , and an army of vermine every where about them , and this is the condition of all those that dwell in open places , without garrisons and walled towns ; for of them there is not one expers de calamitate ista ] saith our text. for though garrisons and walled towns , villa & oppida murata ] be more chargeable , for that they maintain garrisons to defend them , and discipline in them is very strict , because it is in view of all the inhabitants , whose clamour would have audience if it were deserved ; yet is that charge ten thousand times recompenced in the security they have that dwell in them , which is the reason that in all places , set england aside , no security is almost out of cities and towns , fellows to them , there being not onely a force in walls to deny access to spoilers , but a kinde of charm , which languages the rude approachers to beware of sacriledge in violating them : in municipiis muros esse sanctos , is marcianus's his rule , lib. . regularum ; concerning muri and the notions of them , consult turnebus his excellent learning , which i quote onely to avoid prolixity , though the use of walls is from the very instance in consideration very important , since these walls do not onely keep off the trouble , charge , and danger of souldiers quarterings , but the often passes and repasses of them ; for so the text sayes , quae non semel aut bis in anno haec nephanda pressura gravatur , but very often is thus vexed and impoverished ; so that they are not plagues for a day and away , but at all times , so often as they please : and this adds to the misery . praeterea non patitur rex quenquam regni sui salem emere , quem non emat ab ipso rege , pretio ejus solum arbitrio assesso . this royal monopoly of salt is that which is one of the mines of the french crown 's revenue ; and though our text count it a part of the smart misery of the there people to buy so necessary a thing as salt is , which they cannot be without , any more almost then they can without water , fire , or air ; yet truely propriety being the measure of the value of things ( provided the price assessed , though it be proprio arbitrio , yet if it be in any degree moderate ) 't is damnum sine injuria to the people , since the king may as well make the most of his own as private men ; though i think seldom princes so do , though their farmers and those that officiate for them , grinding the people to enrich themselves , draw much murmure of the oppressed people upon their principals : for so unhappy are princes , that offend who will under pretext of their authority , and by colour of their service , the distaste and odium of them is apportioned to princes , which is a good caution to princes not to crush their shoulders and crimple the supports of their usefull lives with such super additions ( to the unavoidable care of their proper offices ) as arise from mal-administration of men in place under them , let every back bear its own burthen , which i purposely here insert , not onely , as it is just , to vindicate the right of royal commodities , as salt in france is ; but to remember the fatality of this artifice of popular tumult upon the pretext of oppression by evil counsellours and instruments , towards the best of men and kings his contemporaries , st. charles , who so heavily complains of them , that his words are , if i had not mine own innocency and god's protection , it were hard for me to stand out against those stratagems and conflicts of malice , which by falsities seek to oppress the truth , and by jealousies to supply the defect of real causes , which might seem to justifie such unjust engagements against me , so he. this premised , i proceed to discourse of this the french king's restraint of salt to any but such as buy it of him ; and the reason is , because it is the king's commodity . brechaeus , that learned french-man , tells us , that it has been the perquisite of regality , and that which magistracy has taken as its revenue in ancient times , among the romans alwayes ; and thence in those countries which were fractions of it , and took pattern according to the proportion of their parts to its whole , to retain their necessary usages amongst them . this then of salt , one of the great necessaries to li●e , i shall not write of at large , but referr the reader to the authours in the margent ; onely let me minde the reader , that this sal here , is not that sal metallicum , id est , fossitium , which strabo lib. . calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and (a) pliny , (b) dioscorides , and (c) varro mention , and of which i think i may with learned men conclude , that not onely absolom's pillar was made of , but also let 's wives figure , as the solid body that in the perennity of its consistence would eternize the memory of their sins and punishments . no such salt is the king of france's commodity here , but that salt which the wiseman saith , salt savoureth every thing ; that which not onely our lord hints of its conservating quality in that allusion to discretion , the steerage of the conversation from danger and disgrace , have salt in your selves and be at peace one with another ; but that salt which is the relish of every palate , and makes good every crudity , which the ancients apprehending under the name of salt and wood , comprehended all necessaries to a charitable entertainment : so that though many things to the celebrity of a court-feast may be wanting , yet where bread , beere , fire , and salt is , there is no lack of the integralls of meals , and those not ony subsidiary to life , but wholsome to promote the comfort of it , being in some measure there . and therefore the universal requiry of salt enhaunces the quantity that is vented and the price of it , especially where it being in the sale no general commodity , by occasion of which , one underselling another , the buyer has the more choice to deal with men , either as their good humour and necessities do render them more tractable , or to forbear them when the contrary ; but in one hand , who either must be pleased in the price , or the accommodation cannot be had . this being the state of salt in france , the text complains of it as a sore curb to the natives ; for it is prized solo regis arbitrio , and at such rates ( though merchants may chuse to buy it to transport , for buy it they will not but at such a rate as they can get by exporting it ) yet the eaters and users on the terra firma must ; and by this he does so orbem [ gallicum ] sale defricare , as the speech in turnebus is , that he by his salt at his own price dreyns away the bloud of their purses , and so does in a kinde , as of old was wont though in another manner , consecrate by * the salt his table of royal plenty and riches , which he supports his imperial charges in a good part with . for though he has other vast incomes , yet this of salt is not the least ; and therefore in that he has it , and that for so mighty a people , and that in such a measure as he may set his own rate , it is a very great prerogative ; which , since it must be in one hand , is fittest to be in the best and most charitable one , who like meroveus , the quondam governour of france , ruled so , that in ten years be omitted not one hour to do well ; for princes , as they have opportunities , so have spirits sutable thereto , and though private men may be narrow and make the utmost they can of what they have , yet they , out of their greatness of minde , love to be bountifull , and in so doing deserve not the complaints that otherwise would arise upon enhauncing . for as it would seem too hard a pressure on subjects to make them pay a rate for their breath , light and water , so some make it hard to put such a gabell upon salt ; yet , as i said before , it has been very anciently laid not onely on the roman and other government 's subjects , but even in france . and though this salique law has excluded the subjects from the merchandise of salt any otherwise but by buying it of the king , as well as the other salique law has females from that crown ; yet there being a vast revenue ( reckoned at least to crowns a year coming to the crown by it ; ) and being a continuance of a long time in the crown , the nation findes no burden of it , but grows rich notwithstanding it . for princes do let and sell good pennyworths , and if their subjects are pinched , 't is by their ministers avarices which cannot be avoided , not their desires to sell to the utmost value ; for some they must trust , and if they chuse the wiselyest they can , yet they may be deceived , opportunity often making the thief , and then their being deceived is more their misfortune , then their sin or mis-government . and therefore the subjects of france are no more displeased at this , then the egyptians were with ioseph's store of corn , which , though it bought out the land to king pharaoh , yet rescued them that sold it from famine and perishing . for though this salt raise a vast summ of money , yet it thereby defends the people from rebellion and invasion ; because it maintains an army that suppresses the one and advances boldly to refuse the other . 't is true , i confess , there is no comfort in being hanged on a golden tree , no more then for a virgin to be stuprated by a beauteous person . if ruined a subject must be , whether it be by princes or others , men account it ruine and welcome it not ; but yet in things beneath ruine , in shortnings and abbreviations of life , for particulars to suffer them to the accommodation of the generalty , is very endurable ; for time and use wears out those prints of regret , that upon the first example and introduction of unwonted things , were fixed in the mindes of men against them . the twelve peers of france were wondred at , when first instituted by charlemaigne to make his voyage in the warrs with spain more honourable in shew ; yet ever since they continuing , are counted the nobilities stabiliment and the allowed heigth of their honour . this imposition on salt grew up first under the warrs between philip of valois king of france , and our king edward ; the french king being in want of money made a decree , that no man , of what degree soever , should sell or buy salt but from his granaries , which he set up ( seising all salt in every proprietors hand , and giving them a reasonable price for it ) which done , he set what price he thought good upon it , and made every one at his stated price buy according to the proportion of his family ; and from that time ever downward . this then taken up on that necessity , has been kept up , ingeniosum profecto inventum ( saith gaguin ) quo nemo à tributo liber esset , & unde ingens regibus pecunia quotannis venit ; yet time has made this gabell natural to the french subjects , as tunnage and poundage is here . for though , saith sir e. cock , that were given to h. . but during his life in respect of his recovery of his right in france , and there was a proviso in the act , that the king should not make a graunt thereof to any person , nor that it should be any president for hereafter : yet it continued all the kings times after , and all of them enjoyed it , which confirms , that time makes that pleasing which at first was not so . and so , though for the french to purchase salt at the king's rate were at the first hard and disgustfull , yet use has made the nation perfect in the custome and way of so doing ; that onely which argues the rigour of it is , that the subjects must not onely pay the king's rate for the salt they buy , but must buy such a proportion as the bodies of the persons in his family , are by the king's commissioners computed to spend , so sayes our text. et si insulsum pauper quivis mavult edere , quam sal excessivo pretio comparare , mox compellitur ille tantum de sale regis ad ejus pretium emere , quantum congruet tot personis , quot ipse in domo sua fovet . indeed this is hard , that a poor soul , that must ( through necessity ) want much accommodation , because money that fetches it , is short with him , that yet such a miserable wretch ( rich in nothing but children , wants , and vermine ) should be compelled to take salt , which perhaps he would shift without , or to such a proportion onely as his money will reach to , ( other things being considered also , which are as much or more concerning to him ) beyond his ability , is very irksome and certainly offensive to god , because an oppression to the poor , whom god leaves in the world as objects of charity and exercises of our gratitude to him , between us and whom he onely has made the difference . yet is not this so strict as true , that it is the condition of all parts of france , the pressure whereof none feel but they that are least pityed by greatness , and least able to relieve themselves against the burdens of it . but poor wretch that the peasant is , he has no remedy , but to commit his cause to god the onely helpfull patron of distressed subjects , and unless he turn the heart of a prince and make his bowells yern to his poor vassals , there is no remedy but patience ; better suffer any misery and diminution then sin against the law of dominion and the fidelity of subjection . this is the safest way to a good life and death ; though certainly they have other principles whose spirits rise up against governours , whose accounts being onely makeable to god , are not to be questioned by men any further then the lawes of nations allow , and the limitations of religion expound those allowances ; my prayer being ever , that god would season all good subjects with that piety of resolution , that they may make them love and obey , more then fear and be in awe of their prince ; for love makes loyal , when hatred and dread is the preparation to treachery and revolt . he said well that avowed his own experience of god's work on his gracious soul , i had rather prevent my peoples ruine then rule over them , nor am i so ambitious of that dominion , which is but my right , as of their happiness , if it could expiate or countenance such a way of obtaining it by the highest injuries of subjects committed against their sovereign , thus the oracle of english monarchs . insuper omnes regni illius incolae , dant omni anno regi suo quartam partem omnium vinorum quae sibi accrescunt . this is a further addition to the revenue of that king , which though some may censure for mala vicinia to the precedent salsuginosa vicinia ; yet truely i know not how to think other , but that it is a reserve of the crown on all the vineyards , which were originally derived from it : and then 't is no more a levy on his subjects , then rent is tax on a tenant , or tithes on the occupier of ground . yet in as much as our text-master , who lived long there , referrs it to a badge of servitude and villenage according to the old rule , quicquid acquiritur servo , acquiritur domino ejusdem servi , seems to be more then ordinarily worthy notice ; for in our chancellour's time this fourth part de claro , of the growth of vines , was in effect , reckoning the charge of tillage and gathering , the third : and cassanaeus adding another imposition of the eighth part , de vino venali , then the fourth part of the growth in kinde , and the eighth part of the value in price , brings the best part of the profit of vineyards unto the crown : for as all persous are bound to yield it the fourth part of their growth without diminution , so are they every where to give it without exception . et omnis caupo , quartum denarium pretium vinorum quae ipse vendidit . this caupo the translator terms a vintner , because such are with us the great sellers of wine ; and of these is there a wealthy corporation in london . yet caupo in the law signifies so much as amounts to an ordinary , where men eat , drink , and lodge , but not their horses ; which differs from a tavern , in that therein men eat and drink onely and not lodge , it being a tippling-house for a pass , and so the lawfull residence in it onely for the day : though * brechaeus takes it otherwise , caupo mercedem accipit , ut viatores in caupona manere patiatur , stabularius ut permittat apud eum jumenta stabulari ; yet our text restrains caupo to an house of entertainment , an hostlery as in france they call them , which though the statutes of r. . c. . h. . c. . h. . c. . so calling , understand inns for beasts receipt as well as mens : yet the text primarily respects them as selling wine for mens drinking . but i take caupo to be more general , and to extend to any kinde of negotiatour , as cauponari to any kinde of dealing ; for it being sier to cupedia , which referrs to lautiora esculenta venalia , takes in all kinde of dealing for things , which the greeks render by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : thus ennius uses cauponari bellum , which he borrows from aeschilus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and philostratus thus tells us apollonius tyanaeus wrote an epistle 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to the corn-merchants ; and in ¶ another place , when he writes of the toyl and moyl of callings , he sayes , there is no greater a slavery in the world , then your merchants by sea and land have , who do not onely keep faires in all weathers , and notwithstanding all hazards ; but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , but keep so with comers and goers in those publick houses , that they are ever bibbing , and buying or selling in them , which he reckoned desamatory . for the ancients made lawes again tavern-keepers , as persons infamous and not admittable to magistracy ; yea , in as much as the keepers of them were to receive all comers and minister to all their wants ( which worthy people would not conforme to doe . ) of old those that kept such houses were counted e face plebis , no better , as we say , then they should be , under which reproach rahab went , and was therefore called the harlot ; and our lord is thought to be disgracefully alluded to in that scandalous taunt of the pharisees , a wine bibber , a friend of publicans and sinners . this then is the large notion of caupo , which the text master restrains here , not to limit its verbal latitude , but to reach the sense of his purpose in the quotation ; that every publick house and merryment in it , payes a duty to the publick charge , and that being the fourth part of the price , comes surely to a vast revenue . et ultra haec , omnes villae & burgi solvunt ' regi annuatim ingentes summas super eos assessas , pro stipendiis hominum ad arma . concerning vills , see the notes on the th . chapter . that which their mention here intends , is to notifie , that as the open country-dweller payes in his spoyle by the army , so the immured ones answer in taxes ; and these , as they are annual , so are they not light and easie , but heavy and hard . ingentes summas ] not onely great but wonderous summs , such as exceed almost numeration ; for ingens is a word of capacity , and has a kinde of latitudinary vastness in it , ingens moles , ingens exercitus , ingentes colossi , and populi ingentes , are frequent in authours : yea every thing that is notorious and prodigiously wonderfull is termed by it . virgil tells us of ingenti amore perculsus , and pliny of ingens animus , fortis , magnus & constans , and livy of ●ura ingentes , ingentes gratias , clamores , bellae , and ingentis nominis rex ; these things set forth the concurrence of authours with our text to express extraordinary taxes by ingentes summas . and sure such they must needs be , for france is a country that has vast provinces , and every vill and town in them being yearly assessed , the summe total of such provents must be exarithmetique ; yet so insatiable is the minde of some princes as well as meaner men , that they think they never have enough , though they force men to digg upon the rock , as he told pyfistratus the athenian tyrant , where nothing but toyl and grief is to be expected , and yet must it be done to pay his masters imposition upon him , although the end of such levyes be not prosecuted , but the subject preyed upon by the army he payes , as if it were forces of enemies : for the text sayes , the taxes are levyed pro stipendiis hominum aed arma ] but in truth they have least of it , which causes the following words , that the armata regis , qua quam magna semper est , &c. ] that the royal army which is great is grievous also , making little difference between taking all in an enemyes country , and leaving none in their own country : and this makes the condition of france sad , that men must pay to support an army , and yet , by that army they contribute to , be eaten up and totally ruined . yet this is the misery of armies , that they are not onely chargeable but insolent and cruel , and are armed such to be and not to be refused , because they come into countries all over prepared for commands and terrour . armata ] (a) tully points out to this sense of armata ] armatos si latine loqui volumus , quos appellare vere possumus , ●pinor cos qui scutis telisque parati ornatique sunt , and in another place he speaks of one incredibili armatus audaciâ , and silius mentions , armata dalis mens , and armatum fide pictus : so that the army of the king being potent and poor , and being not paid their wages , are forced to either spoile or starve . and hunger breaking through stone walls , and necessity forcing to what ( but for it , is execrable and not the choice of men ) the french subject is hardly dealt with , who payes money for his security , yet is quartered upon by the souldiers ; yea and that in vills and burroughs , such an animosity is there in the nobless against corporations , and the inhabitants of them , that they can neither bear their thrift , nor forbear borrowing of them when thrifty they are and can lend . yea it sometimes happens that the huffs of greatness better endure detriment to nations , then take reparations by the help of citizens and burgesses of vills and cities . there is a famous story confirming this in walsingham : in the time of richard the second there was one mexer a scotch man infested our , coast so boldly , that no ship could stir to and fro but it was snapped ; the admiral of england that then was cared for none of these things , so true a gallio he was in neglect of his duty , that the subjects were afraid to trade , and merchandise grew scarce and dear : yea the pirat braved so by his successes , that he said , he would surprise england ere long . when no spirit in the nation rose to the suppression of this mischief , sir iohn philpot a citizen of london , and a man of great wit and wealth , pitying his native country ( so nosed by a bold enemy , and neglected by heedless ministers of state ) resolved with himself to clear the seas of this cormorant , and to secure his country-men and their vessels from his rapacious clutches , thereupon de propria pecunia conduxit mille armatos , &c. he raised a thousand men at his own charge , and with them set upon the pirat , and not onely took his prizes , but him the arch-pirat also ; which action , though it had the acclamation of the commons , yet brought him no favour with the great men : for sir iohn philpot was summoned before the lords , and told , he was too blame so to do , ac si non licuisset benefacere regi & regno sine consilio comitum & baronum , saith the historian . patiently he bore the several censures of his judges , till overcharged with the tartness of the lord stafford , who rating him more then he thought became him , was by sir iohn stoutly replyed upon to this purpose , that he , not moved with pride or ambition , but with pity on their sloth and his nations dishonour , undertook the enterprise ; and that what he had at his own charge done , was so farr from deserving displeasure , that he hoped it was an acceptable work to god and his country-men : and that his lordship ought rather to commend his zeal to his country , then blazon it as a demerit of it , which reply did so daunt that lord , that he had not a word to say , thus the story ; which i note , because it often falls out , that great-men think nothing worthy or acceptable , that comes from a hand they like not ; ( as seldom do the haughty of the nobles and gentry , cities or citizens , though descended of noble and knightly families ; ) who , though they will seek portions with wives in citizens daughters ( and were it not for london , what mine of that kinde would they finde in england , as meanly as they think of it ) yet are too often detracters from them , and utter phrases of disparagement to it , like that marginal note which my walsingham has on this story in hand of queen elizabeth's time , a sawey knave , merchants answer to a nobleman . but enough of this , onely 't is pity corporations , that are staples of trade , should pay to avoid quarterings on them , and yet be quartred upon : but this being the posture of things in our chancellour's time of stay in france , occasions me to conclude , that all 's fish that comes into the souldiers net. and since their net , which heretofore caught the nation , is broken and we are escaped ; and our governours are as at the first , and our iudges as at the beginning , as the forequoted scripture expresses the happiness of a restored people ; how much becomes it us all to sacrifice to god ( in the advancement of his glory and the gratitude of our reformed lives ) the first and fatlings of our serenity and order . for what bocerus writes of armies and souldiers is most true , all the good they doe ( necessity of rebellion and invasion excepted ) is toleration of all religions to gratifie the parties potent in them , disturbance of setled order , decrease of good learning , dispossession of subjects of their houses , lands , vineyards , and accommodations , impedement of husbandry , trade , navigation , destruction of buildings , murthers of men , and waste of cattel and wealth ; for the souldier qua such does more intend his spoile and pay then examine the cause ; and caring not for any thing beyond returning home rich when he shall be discharged , studies no civility to the country he is a stranger to and a temporary conquerour of , thus bocerus . from the danger of this then ( god be thanked ) england being delivered , we have a mercy beyond the subjects of france ; wherein , though there is no enemy , there is notwithstanding an army , which does quarter on the people shrewdly , so it follows . et ultra haec , quaelibet villa semper sustinet duos sagittarios ad minus , & aliqua pl●res , in omni apparatu . still more and more charge , belike france is all gold and gold's worth , not onely the fourth part of the grapes , and a penny on the quart for wine sold , taxes raised yearly on vills and burroughs , free-quartring on the peasants who live in the open countrey ; but also besides all these , every town and ville is bound to maintain at their own charge two archers at least , and some more , every way compleat , in all manner and equipage of warr : this will amount to a mighty army . consider then if we doe , france to be in length italian miles , in breadth , in circumference , it s great provinces , that contain in parish-priests of the clergy , who yet are but a small part of the men , yet are in number said to be , other ministers , archbishops , bishops , abbyes , arch-priories , ● priories , nunneries , convents of fryers , commanderies of malta , parish churches , in which are computed millions of people . i say , france so vast in circuit and numerous in people , having perhaps as many vills and burroughs as egypt had cities in amasis his time , which budaeus sayes , were : if at thousand of them comes to archers ; and at a ville is thousand more . i say , these thus computed make a very vast army of archers , and those are no mean artillery but of great terrour and execution . antiquity thought so of them , for besides that the asiatique nations and the indians to this day use them , the romans and germans had much esteem of them . tully numbers archers among the magna tormentorum copia , multis sagittariis , multo labore , &c. and ¶ tacitus reports the germans to asperare sagittas ●ffibus , and quintilian tells us of armatus sagittis & face ; and ovid , though he want only uses the phrase nudis sagittis uti ad bella , yet alludes to the customs of warrs , to have arrows in a readiness , when the wolf of an enemy was before them , this dogg of arrows was behinde hanging at their backs , ready to fix them . for as arrows are an engine of warr , doing execution without noise and at distance , so are they very fatal in their galls to horses , and their injuries to foot-souldiers , which made moses , who was mighty in word and deed , compose his army much of archers and darters , if philo's authority be canon in the case ; for he sayes , he had 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which are often as potent to force an enemy from his station , as that persian money named sagittarius , was , to force agesilaus out of asia , when the king of persia by timocrates gave him thirty thousand of them to have his room rather then his company . the archers then of our text are such as doe , though they doe not venenatas emittere sagittaes ( as some barbarous nations used , to cure the ill consequence of which pliny tells us , men studied remedies ) yet doe vulniferas emittere sagittas , and such as brings men in potentia proxima , by mayhem to death . thus saint bernard tells us allusively , that god has three great sorts of arrows to wound the hairy-scalp of wickedness , loss of fortunes , corporal disquiet , and infernall torments , and that there are but three defences against them , calm fear , devout love , and virtuous wisdom , by which they will be frustrated . and certainly as heed to , and provision for the evil day afore it comes , is the way to conquer the terrour and despoyl the triumph of it when it comes ; so to be unprepared for and negligent of it , is not onely to yield the breast of life and happiness to the fury of arrows of enmity , and to court a foe , in me convertite ferrum , but cloggs the disconsolacy and shame of such advantage and insult , with reproach of asnery . and therefore our nation , who ever found great advantage by archers and arrows , not onely by many notable acts and discomfitures of warr against the infidels * and others , but subdued and reduced divers and many regions and countries to their due obey sance , to the great honour , fame , and surety of this realm and subjects , and to the terrible dread and fear of all strange nations , they are the words of the statute . h. . c. . enjoynes archery to be maintained ; so did , before h. . . h. . c. . which , though they are repealed by the forementioned , yet stand good as to the approbation of archery therein directed . and this the text noting as a piece of the wisdom of the french ( who has often been defeated and galled by our archers and their vollies of arrows , as at hambout in edward the third's time under the lord mannyes conduct , after at abvile and saint requier , after at the battells of poictiers , aulroy , agincourt , in the expedition of the lord d. awbeny and earl morley against the french in henry the sevenths time ) finding the use and consequence of them , array their nation with them ; though i read of no great execution that they have done by them , but yet they do continue the exaction of archers from every vill and burrough , which doth finde duos ad minus sagittarios , & aliqui plures . in omni apparatu & habilimentis sufficientibus ad serviendum regi in guerris suis. this comes in to shew , that not onely the bare archers are to be found , but them set forth to , and furnished for performance in the warr ; for omnis apparatus signifies a good cloathing and arraying , as an archer should be , with bowes , arrowes of all sorts , files , whetstones , gloves , bracers , bow-strings , sword , and all things else that to archery appertaineth : apparatus signifying not onely the furnishing it self , but the preparation to it , training up to the exercise , and this added to the former , makes compleat apparature : thus tully defines apparatus homo , and instructa & apparata domus omnibus rebus , as much as ornata , so that every thing that is deficient of the perfection of its kinde , being said à magnificientia generis recedere . this apparatus being the triumph over that mutilation , is that which is understood the compleatness of it , which because in matters of warr to have all necessaries to carry on our undertaking to its full execution , do become a souldier . habiliments of all sorts are necessary , and 't is said , cum habilimentis sufficientibus , whereby is meant , according to the french habiliments notation , aptly , strongly , cunningly , and with good decorum ; and this to be enabled by good setting forth to do , is cum habilimentis sufficientibus , ( as the texts words are ) worthy the kings service in his warrs . in guerris suis. ] a word made latin from the french guerre , which signifies primarily intestine dissention and contest , a thing frequent in france , but is used largely for any military encounter ; so walsingham expresses it , and thence the word warr which is of the same latitude : for wars being the kings to begin and end , as to him in his majestick consideration seems meet , those that are to assist him by tenure and roll are so to do in france , when ever his army is in motion , and his royal orders to summon them to their quarters ; which quoties libet eos summonere ] is a very vast power in that king , and those people willingest submit to , and with least regret bear , who live in the times of such as lewis the twelfth was , whom histories publish to be good to his subjects , and alwayes studied to ease them ; for he raised many armies of horse and foot without the oppression of his people by new impositions , which made his subjects often and freely grant him increase of subsidies to supply his forein and domestick affairs , yet would he not allow of those impositions , desiring rather to cut off the expences of his own person and houshold to save his people from oppression and spoyle : thus noble was king lewis , who , though he had all he pleased of his subjects in vassalage to him , and could mow the faire meadow of france by the sithe of his power as often as he pleased , and that to such a proportion as should shave , rather then only sheare the fleece of his subjects : yet amidst all these temptations , he employed not his power to burthen and pinch them , but knowing god his chief , knew 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , what was white or black , good or evil in him , would accordingly reward or punish it . i say , under such a prince no latitude of power is too great , because god gives him power over his temptation , and thereby secures them that otherwise he could annoy : but when princes of other temper , whose will is the law , ( when it wills nothing consenting with the law of god , nations , reason and religion ) are in power , then full sad is the case of subjects , & full dismall the accounts those princes have to make to god for terrifying their quiet and patient people , and burthening their contented backs beyond measure , and the proportion of necessity : which lewis the eleventh king of france in a high measure practicing , and rejoycing in nothing more then to tyrannize , did feel repaid him in the dreadfull terrours of his sick and death bed ; for when he began to decline , he was a terrour to himself , hating and mistrusting every one , ( not his own son and son-in-law , his daughter , nobles , courtiers , commanders , excepted ) but prosecuted them all with jealousies , onely iames cortiera , a burgundian physitian , he trusts , and was so desirous to live , that to draw forth cottiera's utmost skill to save him , he gave him crowns a month , and what lands and offices for himself and his friends he would demand , his nephew he made bishop of amiens ; in short , so he would but prolong his life , he was contented he should command his crown and scepter : after this , being fearfull of death , he sends for francis the pious hermite of calabria , falls down upon his knees before him , desiring him to prolong his life : he causes the holy reliques to be brought from rheimes , paris , and rome , and by them standing by him , hoped to preserve his life ; and when all the divines about him , told him he could not escape death , but was to prepare for the entertainment of it , all he sayes is , i had hope that god would help me , but god knew he little deserved it , for though he took the politickest course he could to have his cruelty in government concealed , setting up his statue in his life time , with his knees bended , and his hands joyned together and lifted up as a devotionary , and this he did to prevent the effigiation of himself when dead , as the manner is , with both his hands downwards , to signifie those that did in utroque male administrare ; yet by this did he not avoid the severe character of historians : for miserable prince as he was , god was not near in the comforts of adversity , the prosperity of whom was not only an estrangement from , but an enmity against god. much good may honours do them that buy them so dear as some great men , whose will is the law , often doe : so did the french queen katharine , who to establish her regency after henry the second , found no better means then to abolish the fundamentall lawes , the order of the realm , the priviledge of the princes of the bloud , the authority of the general estates , and the prerogative of the parliaments . o surely 't is a shrewd grief to undergoe the cross purposes princes affairs are ruled by . philip the fair would needs raise impositions of ten deniers on every livre in merchandises and wares , the people in picards , normandy , orleans , lyons , and other places flew into such sedition that they made his life a trouble to him . and in charles the sixth's time , by reason of high government , it came to that pass , that his very servants banded against him , his counsell plotted his ruine , and the chief controulers of his actions were the princes of the bloud . these , these , are the miseries of governments depending on will , which is such a wilde thing , if not bounded by god who onely can keep it from the hour of temptation and miscarriage , that there is nothing more fatall ( except hell ) then it is ; nay , it is that which makes the hell of torment . this boundless will in the dangerous effects of it , is the cause of that his non ponderatis , which produces tallagia alia , &c. to the ruin and grief of subjects ; for when greatness is set upon the carier , and will go on non obstante religion and justice : o then 't is nothing but god can remora it . saint clovis , the founder of the gallique greatness , is storyed to commence his atchievements after a method very dreadfull ; he slew all his kinsmen that their principalities might come to him and his race , he spoiled men prodigeously of their goods , he seised and slew chararie and his son , condemning them ( as they were polling ) to be put into a monastery ; the son seeing the father weep bitterly said , these green branches will grow again , for the stock is not dead , but god will suffer him to perish that causeth them to be cut off ; which speech clovis hearing of , said , they complain for the loss of their haire , let their heads be cut off , and slain they were . add to this his conspiracy with the servants of raguachair , and when they had brought raguachair bound into his presence , he reviles him for unworthy the bloud of merovee thus to suffer himself to be bound ; and when those that he hired to binde him came for their reward , he reproached them with avaunt traytors , is 't not enough that i suffer you to live , i love the treason but i hate the traytor : these and sundry the like which gregory of tours charges on him , make him a most grievous sinner though a great king , and the more grievous because so great a personage . all these confirm , that oppression proceeds from unlimited wills. when princes give way to vage desire , they bound no where , but think what they have too little , when what they would have , is farr further too much . alas , what would the french monarch have more then he has , who has all his subjects have ? enlarge his revenues he would , but to what proportion he knows not himself , nor doe his subjects : lewis the eleventh advanced the revenue of france one million and half of crowns ; francis the first doubled that advance ; his successour henry the second doubled the first double ; charles the ninth added to the six millions a seventh ; henry the third brought the seven to ten millions , and after to fifteen ; in henry the fourths time the treasurer of the duke of mayenn said that his master had more improved the revenues of the crown of france then any king had done before him , advancing it from two to five millions sterling , and yet not a tenth part come clearly to the king's revenue , the crown having officers to gather its revenue . these and the like unhappinesses of our natures in heigth of fortune , argue princes as men in danger , and subjects under the ill aspects of that greatness , not happy , but as the text's words are , lacessita plebs calamitatibus in miseria non minima vivere . his & ae● iis calamitatibus plebs illae lacessita in miseria non minima vivit . these forementioned and others equivalent oppressions , he calls calamitates , to set forth the inevitable and fatal nature of them : for calamitas is properly the violent beating down of corn or other vegetables by winde , hail , rain , or other tempest . theophrastus to shew the demolishing nature of it , renders it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that which causes pain in the fracture of a bone . from this calamitas comes clades , which originally is surculorum contritio , and so calamitas calamorum is taken for strages stratarum arborum ; here it imports such affliction and sorrow of streight as men in love have , and as those that we say are at their witts end , that know not which way to bestirr themselves . lacessita injuriis ] made mad by oppression , * as the phrase is ; thus lacessere aliquem ad pugnam & bellum is to provoke to battel , and sermones lacessere to provoke talk ; and when silius sayes the bull does rupes lacessere , he relates to the bulls madness , which will butt his rage against the hard rock ; and turnebus when he reproaches intemperate men , sayes , they do mortem lacessere ; and i remember ¶ walsingham writing of pierce gaveston sayes , he did lacessere insolentiis regni nobiles , &c. he provoked by his insolencies the nobles of england , till they took his head off , and therein taught him m●re wit then to provoke honour and valour . by then this clause , lacessita plebs in miseria non minima vivit ] the chancellour does not onely mean they are kept short , as those pastures are that are overlaid , but so afflicted as those are that have craving bellies , and no food or money to buy it . this cominaeus in other words sets out to the life , france he tells us was before and in charles the sevenths time twenty years afflicted with grievous exactions , which lewis his son encreased upon them ( as if he had fullfilled that commination that god threatned in that scourge of his , that should eat the fruit of the cattel and the fruit of the land until the people be destroyed , who also shall not leave corn , wine , or oyl , or the encrease of the kine , or flocks of the sheep , untill they have destroyed them ; ) for so immane was he , that my * authour sayes , it was amiserable thing to consider the extremities his cruelty forced people to : which makes me often to minde my self and all my countrymen to be thankfull to god for his mercy in our good princes and good lawes , which do not onely give us freedom and security with full consent , but deny the contrary upon pious and politick grounds . for as england has ever had more parkes and chases in it then any part of the world no larger then it , ever had or has ; so has it had more in number and virtue pious and mercifull princes then any nation of the christian world ever has had ; which is the reason the lawes and they , have so well agreed to bless their people with riches , freedom , and co-operation in government under them , that i may ( under favour of the great and noble state-oracle , the now lord chancellour of england ) use his words very seasonably here , when speaking of our most dear and beloved sovereign he sayes , he hath not yet given us , or have we felt any other instance of his greatness and power and superiority and dominion over us , nisi aut levatione periculi aut accessione dignitatis , by giving us peace , honour , and security , which we could not have without him , by desiring nothing for himself but what is as good for us as for himself , thus that reverend and honourable sage ; which makes me reassume my former magnification of the government of england , in which there is no slave , no subject so vile and vulgar who can say he is lacessitus , or does live in misery through the oppression of his prince and the lawes ; but according to the thrift he expresses , and the blessing of god on it , lives in the enjoyment of what they acquire to him . which not being the happiness of the people of france , they are said in our text to live in non minima miseria ; because , though they are in continuall factions , according to that which caesar wrote long since of them , and budaus does not deny , in gallia , non solum in omnibus civitatibus , atque in omnibus pagis , partibusque ; sed pene etiam in singulis domibus factiones sunt , which is enough to ; keep them miserable ; yet have enough whereon to support their lives and relations comfortably : yet is that they have , so charged , that the exhaustion from it leaves nothing theirs , but renders them so poor , that they doe hardly keep life and soul together , for the text sayes aquain quotidie bibit ] as in the foregoing instances , the fortunes and estates of the peasants were charged , so as thence to render them poor in estate ; so here is a particularization of that which is in a sort afflictive of their bodies , while , though they have wine and appetites to drink it , their expences be so enlarged by their taxes , that they are fain to spare every luxuriancy to answer them ▪ and for that cause , while they sell their wine they drink water , and that not onely sometimes for pleasure or medicine , but quotidie , as often as they eat their bread , day by day . now this water-drinking the text makes a part of their misery , not as water is the mother of liquors , and in some countries , seasons , and cases excellently wholesome , being the natural drink of man and beast , and so a blessing and no injury ; but as it is that , which in common account being cheap and chill , is improductive of such generous spirits as lustier liquors generate ; and as it is that which has such a mortifying operation upon nature , that it leaves the drinker dejected and sad , and denies nature all the merry notes of her musick and prankness . for thus water understood amongst all nations passes for a drink of meanness and want : hence that passage in the prophet , wherein god alluding to the custome of power to afflict perverse and facinorous delinquents with a dungeon , and onely bread and water therein , sayes , though the lord give you the bread of adversity and water of affliction , yet it shall be well , intimating , that onely bread and water are the support of nature under adversity and affliction : so god's menacing ierusalem's reduction to short commons for abuse of her plenty , sayes , i will break the staff of bread in ierusalem , and they shall eat bread by weight , and with care ; and they shall drin●k water by measure and with astonishment . so that to drink water dayly , and that to save charges , and to be able by such denyal of themselves to gratifie the great levyes upon them , which they should be unable to disarrear if they did not so , is that which confirms their misery according to the allegation of the text , nec alium plebeii gustant liquorem nisi in solennibus festis ] though water be most wholesome and the drink of epidemicalness , and though it does many good offices to nature , feeding it to no excess , engaging the intrals to no inflamation , though it impede corrosion and putrefaction , most of which injuries to nature are promoted by sophisticated wines , and other ill-compounded liquors , as well as by salt , crude , and indigested dyet ; yet when water is become ( in this sense ) of a servant a master , when it , from being serviceable to cleanlyness and to cookery of meat , advances to concorporate with men , and that to be the onely drink they must take down , then 't is hard . water is thought cold comfort , welcome it is to armies on their march , and to shepherds for their flocks , and to travellers on their plod , and to garrisons in a siege , and to prisoners in their dungeons ; but to men that labour hard and have wines growing , yet must sell their wines to pay impositions and finde souldiers dainties , while they themselves are forced to drink water , this is irksome . yet the condition of france is such , that the poor peasant is kept so short , that eat and drink coursely he must ; which though some do in england , 't is because of other accidents , not their impositions . but in france the plebs drink water except onely diebus festis ] these dies festi or holy daeyes i have written of in the notes on the chapter , that which i add here , is to notifie the practice of antiquity to indulge to these great dayes , and the solemnities of them , extraordinaries of all sorts , not onely cloaths and entertainments , but every other thing , the best whereof then appeared ; so philo tells us the iews did , and turneb●s with bud●ms out of the roman authours confirm . for though i know they had their (a) dies magui , besides these festa ; yet did they in these festivals abound argento , veste , omni apparatu , ornatuque , as (b) budaeus testifies : which entertainment of festivals , as the christian church has ever retained , as is evident in the councils , and as polydor virgil has made good : so also the custome of france is , that though the plebs drink water ordinarily , yet on holy-dayes they feed and drink better ; their compotations are then , as larger and freer , so more cheary and spiritfull : then they tipple wine cum privilegio . froc●is sive collobitis de canabo ad modum panni saccorum teguntur . as their drink is water , so their garments mean , frocks of canvas made of hemp. this frock anciently was the habiliment of monk● ; so matthew paris tells us in the life of wolnoth , and so ingulphus ; not that i would have it mistaken as if these frocks were that vest we call the candida vestis or the surplisse , but that monastique garment , which of brown and course linnen , or woollen hung down from the neck to the knees , and which now porters in london wear and horse-keepers : yea because they are worne also by country iobsons at this day , and denote servility , we have a phrase when we would express our anger to one under our power , i 'll canvas his iacket , or i 'll canvas his coat for him . this then of canvas hangs over their close garments , which is in colour and nature much like our barge-cloaths , either brown or of an hair-colour , good for weather and toyle ; and this i my self have seen the peasants of france . in , god knows , with wooden shoes and pitifull other accoutrements . ad modum panni sacculorum teguntur ] pannus is the general name for all that which is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not onely honey , oyl , balsam , which keep the inward parts from waste and injury ; but that hemp , flax , and cotton , which rising from the ground , cloth , though course yet warm for out-side covering , is made of . the greeks call pannus by ' p 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , saith suidas . indeed pannus is taken for cloathing of meanness , and things of meanness ; so paracel●us calls a blemish born with one , pannus ; pliny stiles the tumour or swelling in the groyne by pannus , and turnebus tells us of pannaria mala ; and pannicularia in the ¶ digest signifies rayment and things of small value , not above five crowns , which a man carries with him into prison or the place of his death , so vlpian uses pannicularia ; and he that is rude and beggarly in habit , a ragshame or rakeshame is termed pannosus : so (a) iustine tells us of a military feat that was done under disguise , permutato regis habitu pannosus sarmenta collo gerens , castra● hostium ingreditur ; and saint (b) bernard makes it a sanctification of poverty that our lord humbled himself to be pannis involutus ; thus for panni . but the specification is saccorum ] saccus is one of the original words , that hold their own almost in all languages , in the heb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whence the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is , to strain wine so exactly as we would count it worthy our drinking , and keep it choicely as men do cordials ; hence the best wine is called by iulius pollux 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and theophrastus mentions 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which wine , called sack , holds its own ( as we say ) for esteem even with us . from this custome of streining wine through these sacks or sacking , which were called (c) sacci vinarii , we use to call every thing of linen or hair , that carries any value in it a sack , a sack of corn , a sack of money ( for money-baggs are little sacks . ) hence religious men because their penitent souls are precious , and their natural sins by their sorrow is dreined from them , were prescribed to put on sackcloath : from whence it s grown the livery of those superstitionists , who , under the pretext of sackcloth , carry on subtle projects . so then when sackcloth is applyed to the poor french , 't is to shew their poverty , which cannot exceed the meanest cloathing for their bravery . panno de lana praeterquam de vilissima , & hoc solum in tunicis subter fr●ccas illas non utuntur . ] cloth of hair they wear , but cloth of wool they wear not , or if they do , but that fort of it which is next door to hair , that is doggs hair , as we sarcastically call course cloth . for since the nature of the french is confident and violent , necessity is on the king to humble them , if he will keep his high government ; and if humble them he will , it must be in all things , as well in cloaths , as meat , drink , and money . and this the text asserts he does in that they are allowed no fine cloth to wear , for that is for fine fellows , masters of peasants ; the rough and course remains of refuse wools are for their vests , and yet those not in view portending any value , nor in garments of any capacity ; but in their short coats like cassocks , in tunicis suis subter froccas . tunicae ] most authours agree to be the cassock or polonian coats , a garment close and warm , which though the greeks , and we after them ( for england was ever more like the grave then light nations in habit and religion ) used long ; yet the french peasants cut off , wearing it in the place of a doublet , it being loose and warm , plyant to the body in the labour and activity of it . some derive tunica , a corpore induendo , others ab inducendo ; because it is a garment drawn over not onely the body but also some other coverings of the body . critique authours discourse much of this garment : in turnebus we read of tunica nilotis , tunicae coloriae , demissae tunicae , manuleatae tunicae , tunicae russae : and it should seem that the laticlavian robe , which senatours had , was a tunica ; which , though not so long as womens trains , yet longer then the military coats , and was as the now gowns aldermen use , drawn over their other cloaths : so that tunica understood for the exteriour and visible garment , was applied to the externity of other things . the shell of a nut , tunica nuclei ; the skin or coat that covers the eye , which anatomists make cornea , uvea , vitrea , crystallina , this they called oculorum tunica : that fatal coat which malefactors had of pitch about them , when they went to be burned , was called tunica molesta . in short , what the text intends by tunica is shortly uttered in that which is the country-mans garbe with us , the short coat ; which , though our yeomen and farmers wear , as gentlemen do under a wide and longer vest : yet the peasants in france wear under their frocks of canvas or sacking . and this is their abatement and the badge of their servitude being the vests of porters . neque caligis nisi ad genna disco-operto residuo tibiarum . ] this further argues their suppression and vility , that they go bare-foot , having neither hose nor shoes , but those of wood , or old ones , the refuse of our nation transported thither . now , as to be well shod as well as well clad was among the romans and is amongst all nations a sign of freedom and prosperity , so to be the contrary is a sign of extreme poverty . and therefore the french peasants are kept so poor that they cannot afford to buy hosen to shelter their shin-bone ( the tibia here , which not onely gives strength but beauty to that flesh , which environing it , adorns and symmetrizeth the legg ) but are fain to goe bare from the gartring , to which their breeches reach ; and are so farr from great breeches ( which are semi-pericoats , and the invents of effeminate wantons , who by affectation of them proclaim their lubricity , and what it is they are enamoured with ) that they are glad they can purchase any thing that will tolerably cover their body , and defend the knee , where the motive vigour is , from cold and injury ; which breeches so girt under the knee , may well be called tibialia : as those other things were , which the romans wore on that part armed with it , of which suetonius writes , and of which to write more would be useless . mulieres etiam nudipedes sunt , exceptis diebus festis ] this is a further degree of the poor peasants misery , that not onely he himself must endure hardship , but even his wife and daughter ; women in fex must do it also , and in that , in this particular of going barefoot , the badge of very beggary . now , though true it be , that god made man , one nature , in two sexes ; in which regard philo elegantly calls man , the male-woman , and woman , the female-man , puts them into conditions of compassiency : ( and the state of marriage is under the indispensible condition of for better for worse , for richer for poorer , in sickness and in health . and usual it is , and otherwayes it can not be , but that poor mens wives must be miserable with their poor husbands ( i mean , in that scantness of outward accommodation which men call a worldly misery : ) yet , for women so to be objected to hardship is very irksome to any man to behold , and unpleasing for me to write of . tears here are the properest encounters of these narratives , and 't is pity a pen should any further eternize such barbarism , then to be the remembrancer of that abhorrence , which men in all successions ought to have of it , for womens sakes who suffer by it . but so it is in france , the poor women are sain , to save hose and shoes , to go bare-foot and bare-legg'd , as beggars do , fulfilling that of philo , though in another sense then he meant it , that they are subject to vulgar customs ; onely herein they exceed perfect beggars , that they have hose and shoes for holy-dayes , to masse and to recreation , where they see and are seen , they will go trimm ; otherwise , nasty and pitifull persons they about their houshold affairs are . and this our chancellour uses as an argument of the french country-womens hard lives ; though truely the wives of their nobless and villagers or citizens , are plentifully accommodated with all necessaries ; yea , so glorious and gay are they , and so have they by their fashions new-fangled our nation , that though i do not wish a revival of somewhat like that senatus muliebris in heliogabalus his time , which scoffing and deriding their vanities , brought an odium on , and diminution of women , the wearers of them . this , i say , i wish not , least it too much lessen them ( whom we men ought to have high value of , and great loves for ; because they are not onely unspeakable blessings of life , when they are worthy their names women , but also the means of the continuance of the race of mankind and so our temporal eternizers : ) but that which i do wish is without prejudice i am sure , and without all displeasure i hope to the truely worthy of that sex ; that as (a) budaus wished for paris ; so i , for london and the suburbs , might see such a constitution , vt de nostratibus matronis statueret , quae cuique cedere , quae cuique dux aut comes esse deberet , quid gestare , quid indui , quid amieiri , quidve cingi unamquamque deceret ; but enough of this . onely , since the poor mens wives of france are bare-footed all dayes but holy-dayes , and then put on hose and shoes in reverence to those dayes , i cannot but wonder whence that injunction of simon islip arch-bishop of canterbury in ed. . time should proceed , when holy-dayes being in the greatest esteem and credit , because canonically according to strictness observed , were to be dayes of recreation and devotion ( which is the reason that the historian makes saint lewis the french king's penance on holy-dayes to be meritorious ) and no arts-man to work upon them ; yet then the arch-bishop by his letter patents to all his clergy , inhibited upon pain of excommunication , from abstaining on some saints dayes from their callings of labour , and permitted them to work thereon as upon common dayes . but i return to our text. carnes non comedunt ibidem mares & foeminae , prater lardum baconis , quo impinguant pulmentariae sua in minima quantitate . this leut all the year with the poor drudges of france , our text produces as a further argument of the tenuity of their condition , and their taxes exhaustion from them . for that they eat no flesh , is not ( i conceive ) from any religious observation , or any state-injunction , but purely for cheapness sake ; and by their hard dyet to enable them to keep somewhat about them to entertain their masters with , when they come abroad : and without which to treat and appease them , they would be cruelly tyrannous . for flesh they breed up and have , and stomachs they have to eat it , and a snap now and then they get of it ; but they dyet on roots , grains , and fruits , which they make into pottages : this the text calls pulmentaria ] the same in effect with pulmenta , that we call , water-grewel , pulse , or thin pottage , the dyet of poor people : to which horace alludes , canes ut pariter pulmenta laboribus empta ; and that which apuleius , plautus , and others mention as thin dyet : this the text sayes they do make hearty and strong with a small piece of lard of bacon , or , as i rather believe , by the lard of bacon in the broth , they so quat their stomachs that they make it go further by it ; to this use of it plautus alludes when he sayes , ipse ego pulmenta utor unctiusculo ; and for this use lard of bacon is fitly called lard from arduo , quia ardor f●rmum & arduum facit ; and thus bacon by being salted and hung in the smoak , and over the fire , has much of the succulency , and moisture exhausted ; which being the matter of tenderness and putrefaction , renders it ( in the absence of them ) more compact , firm , and durable . now this bacon or lard , becoming a dish that will dure , is ready ever upon the sudden , which is the reason that some of the * ancients have called it , succidiam , because they do dayly cut such portions off as they use ; and tully sayes cato was wont to call his garden hence succidiam , quia inde quotidie aliquod resecari possit . this then so cheap to the peasants , who bring up the swine of which it is made , and so ready at hand , and satiating the gross labourer's stomach , is the flesh , that onely those poor souls are able to provide , which though they can do but in minima quantitate , yet better a little then none at all . carnes assatas coctasve alias ipsi non gustant , praeterquam inter dum de intestinis & capitibus animalium pro nobilibus & mercatoribus occisorum . this shews , that the best of what they breed and kill , they sell to make rent and pay taxes and quartrings ; and that which they keep is the course parts , which are not moneys worth : and therefore they themselves sometimes feast with it , but carnes assatas coctasve , rost and boyled meats , which are the staples of dyet with us , they attain not to . carnes assatas ] this word assatas etymologists derive from ardeo ; and in the best roman authours assare and assum is as much as merum solum : by way of metaphor it signifies the effect of fire on any thing that extracts by its heat the moisture of it , and thence obdurates it , leaving nothing almost but siccity in it , or at least nothing so much as siccity ; this our language calls through rosted . from this prevalency of fire , which by extraction of the humid parts , leaves siccity to predominate in rosted flesh , critiques term every thing of solitary import by assare , and the words derivative from it , vox assa , a voice without musick , tibiae assae , musick without voice ; assa , the place in the baths where they do onely sweat and not wash , we call it a stove ; assae , nurses that are so intent on the babes they suckle , that they forget themselves and their relations , to tend them : so assam pro mero solo sine aqua & humiditate . and when the poets were said to devote a poem to any particular person , they were said assare ; and their poems were called assamenta . this is the notion of the word , and the ordeal by fire in which the flesh of beasts is purged and made innocent to the stomach of man ; as also it is by the ordeal of water ( coctasve ) which is the effect of fire working by water on flesh ; not by parching up , but by soaking out the moisture and humid parts of flesh , which it allures to its self , and by which the liquour of its purgation is heigthned and spirituated . this , though it hath not the preheminence of the former , but follows it in the account of cookery , we saying , rost and boyled , yet is very wholesome dyet ; and for weak and declining bodies thought most nutritive . it is with us here the dyet mostly of the meaner sort , because it requires least charge and attendance to its cooking ; but in france they use it much , because they delight in pottage , which is sier'd from it . yet the text sayes , the country people have neither one or other ; all they of flesh attain to is the offalls , the nobler parts are for the freemen , and those that are moneyed and can fare and live high , which our text sayes are the nobiles & mercatores . the former for their bloud and commands sake , the greatness and dread of which will fetch from the poor commons whatever it desires : the later , the merchant or citizen for his money sake , which does not onely purchase him esteem in all places , as cassanaeus sets forth notably , but also procure him all conveniencies to life and lustre . for though in france , prerogatives and seats of honour and military tenure be not purchaseable by merchants and men of trade ; yet are such owned for very rich in money and money's worth . and i think the (a) iulian law , that prohibited a senator's son or daughter to marry any one whose father or mother did artem ludicram exercere , will not in the exposition even of france , which stands most upon punctilio's , extend to men of trade , the mercatores here ; seeing trade of merchandise , buying and selling staple and usefull commodities , is not ars vilis but nobilis , ( as noble as the advocate , who sells his breath to the clyents fee , or the souldier his life to his generals pay , or any other profession which men practice for reward ) and so the holy story accounts it , when it terms the merchants of tyre , the honourable of the earth . sed gentes ad arma comedant alimenta sua , ita ut vix ova corum ipsis relinquantur pro summis vescenda deliciis . before it was homines ad arma , by which the cavalry were understood ; now 't is gentes ad arma , all the souldiery . provision the peasants breed up , and perhaps sometimes and in some measure sell to raise their rents , and other charges , but the most of what they get about them , by hard toyl and parsimony , is but to satiate the souldier , not to recreate themselves : which makes me think these poor wretches with others in the asian governments to be very miserable , and those , that so belabour them with affliction and pressure , to justly fear the return of that commination in amos , forasmuch therefore as your treading is upon the poor , and ye take from him burdens of wheat , ye have built houses of hewn stone , but ye shall not dwell in them ; ye have planted pleasant vineyards , but ye shall not drink wine of them ; for i know your manifold transgressions and your mighty sins , &c. or that in ¶ deuteronomy . for truely if poverty , which is god's affliction , be great mens marks to level their power at , and against it pitilessly to discharge it self ; if they that could eat flesh which they breed up , if they had it , are not permitted an egg the slightest dyet , princes that have subjects thus har●assed and shortned , have great cause to have long ears and quick eyes ; yea soft hearts , to hear their subjects groans , pity their griefs , and remove their afflicters ; and that not so much upon politick and plausible grounds , as upon principles of conscience to avoid the terrours of death-beds , and the wrath of their eternal and supereminent sovereign , under whose power they themselves are as well as the meanest of their people ; so lewes the pious told the world when he was in affliction , that nothing preserved kings so safe as piety to god , clemency , meekness , and justice to men . and philip the fair , when he was to dye , calling for his son lewis that was to succeed him , said to him thus , lewis , hitherto of my life i have reigned as a monarch , vexing my people with unreasonable , and to them ruining taxes and tributes , debasing my coyn , by making that go for a value which indeed it was not worth , by this means i have raised the hatred of my subjects against me : o lewis , behold thou art to reign after me , have pity upon the soul of thy father , which is now departing , and see thou amend what has been faulty in my government , thus he. and thus have our pious english monarchs breathed out their imperial souls in benedictions to the people , and valedictions to the world , shewing that they dyed in the love of god as well as of men : hear the soul that was all , ( as it were heaven on earth ) the true glory of princes consists in advancing god's glory , in the maintenance of true religion and the churches good ; also in the dispensation of civil power with iustice , and honour to the publick peace : and in another place , since the publick interest consists in the mutual and common good both of prince and people ; nothing can be more happy for all , then in safe , grave , and honourable wayes to contribute their counsels , in common enacting all things by publick consent , without tyranny or tumults , &c. and how well this counsel in the name of god and by paternal authority given , is obedientially followed by our most excellent lord and master , hear himself to his parliament expressing , in god's name provide full remedies for any future mischiefs ; be as severe as you will against new offenders , especially if they be so upon old principles , and pull up those principles by the roots : but i shall never think him a wise man , who would endeavour to undermine or shake that foundation of our publick peace , by infringing that act in the least degree ; or that he can be my friend , or wish me well , who would perswade me ever to consent to the breach of a promise i so solemnly made when i was abroad , and performed with that solemnity ; because , and after i promised it , i cannot expect any attempts of that kinde , by any men of merit and virtue : thus divinely , and like himself speaks our good king. this disgression i have thought fit to make in relation to that sensibleness which good princes have of their poor subjects conditions , which surely they must needs relent at , who have subjects dutifull to them , yet so miserable , that though they breed up flesh and dainties , hardly can keep on egg , the most trite thing about a country , dwelling , for their own dainties , but are fain to crouch to the souldiers that quarter with them to their undoing , so sayes the text , the misery of the poor peasant is , vix ova eorum ipfis relinquuntur pro summis vescenda deliciis , et si quid in opibus eis aliquando accreverit , quo locuples eorum aliquis reputetur , concito ipse ad regis subsidium plus vicinis suis caeteris oneretur ; quo , ex tun● convicinis cateris ipje equabitur paupertate . this is a further degree of misery , that a governour 's eye should be evil because god's is good ; or , that the thrift of a subject , not by vice or villany , but by labour and frugality , should be the occasion of his scrutiny in order to his diminution . this , though it be here said to be the condition of the peasant , yet is not his affliction from his prince or parliament ; but from those souldiers in command near him , who can so pester him with inroads , and charge him with levyes , that those lunches out of him shall leave him as bare as his neighbours : a cruelty that surely the judge of quick and dead will severely punish , and such as the prince , whose agents these are , should endeavour to understand , and understanding to punish and redress ; which forcatulus , that learned french lawyer , sayes , was the excellency of meroveus , the founder and amplier of the french government , who thought it his duty to overcome his enemies by valour , and oblige his party by kindeness , and not to permit his power to be abused to the injury of any , not to suffer his army to be licentious , but to restrain them where such they were ; accounting it an encouragement to violence , not to prevent it by strict mandates , and to punish it when , notwithstanding them , perpetrated : by which means he appeared not to them a rigid lord , but a calm father , and so inserted himself into the love of the people , that to minde his successours of what the people delighted , they should after his example express towards them , they called them meroveus's . and surely if this example had been followed in france in our chancellour's time , he would not have had so just occasion to have bemoaned the miseries of the poor peasants , as in other , so in this respect . for as enjoyments of mens acquisitions is a great encouragement to them to industriously endeavour , and ingenuously design their plenty and locupletation : so to be deprived of those compensations , and to become the spoyl of others , who by their power worry their plenty and rape it from them , is a disheartning of him to any thing above idleness ; or at best to make him but slow and improlifick in expression of himself . for since the french nation , according to their old druid delirancy , derive their origin from dis the god of riches , that so many poor wretches should be in the nation , who have not prodigally wasted their patrimonies , if any they can be thought to have from that tradition , must proceed from the violence of some over others , and the success they have had therein against them ; which has made the nobless absolutely great and rich , and the peasants absolutely poor and miserable : and for which no better apology can be made , then what i have heard , and is generally the character of the common french people . keep them poor and servile , and they will be gentle and loyall ; but let them prosper and be flush , and the waves of the sea are not more insolent , proud , and boisterous then they are . haec ni fallor forma est status gentis plebanae regionis illius ] this concludes the narrative of the common mans condition in france ; which , though it be full of tristicity , and in the severalities of it very unwishable , because beneath the delight or endurance of a free spirit ; yet must be borne by those whose subjections to their prince calls them to this servitude : which though the chancellour has given me from this text occasion to illustrate and civilly to aggravate , with all those historique circumstances , that carry it to a plenarty of discovery , and thereby render it unamiable ; yet as the chancellour's scope then ; so mine now , is not to provoke those subjects to impatience , or to arraign the polity of that great and majestique nation ; but , by the detection of that ( so indulgent to military men and their accommodation , and so unbenign to men in courses of civil life , such as is husbandry , arts , merchandise , ) to raise a just value and religious gratulation to god , and the kings and parliaments of our own nation , by whose favours and mediations there is therein impartiality of freedom to all , every man bere setting under his own vine and under his own fig-tree ; ( and the laws being equally the benefit and terrour of poor and rich , noble and common subjects as they are good or bad . ) we , that are so priviledged by and happy under this paradis'd government , ought to express all loyalty and readiness to observe the lawes , and venerate the law-makers , who certainly have been ever as true nursing fathers to this nation , as love , cohabiting with humane infirmity , would permit them : nor have for the most part more concerned themselves to promote their own private interest then consisted with the respective interest of their subjects , according to the measure of the known lawes ; so declares good king charles the blessed , i can be contented to recede much from mine own interests and personal rights of which i conceive my self to be master , but in what concerns truth , iustice , the rights of the church , and my crown , together with the general good of my kingdoms ( all which i am bound to preserve as much as morally lyes in me ) here i am and ever shall be fixed and resolute , so he. and so should every subject testifie his loyalty to be fixed and resolute for the king , his laws , and his peoples rights , against all insolence and innovation that rises up against them ; for the law being the surest foundation , all appearance according to it , and in opposition to whatever is frowardly contradictory and adverse thereto , is very worthy good subjects : and i pray god give us all of this nation the grace , to fear god and honour the king , and not to hearken to them that are given to change . thus much concerning the french plebs , and the restraint of them . nobiles tamen non sic exactionibus opprimuntur . ] this shews the partiality that is in france , in that the poor go to pot , while the rich go if not scot-free , yet are not exacted upon ; for france being a military government , and the nobless attending the king in his warrs and armies , excuse themselves and their estates from all forrage and charge , putting the whole burthen on the poor tradesmen , vine-dressers & husbandmen : and this the nobless do by a kinde of aboriginal right , as the instance of their freedom . and not to suffer them to be thus priviledged , were to enrage them to those disorders that their quick spirits are naturally inclined to , and their enraged anger would make them persist in . therefore as the great men of france have ever gloryed in great heads of hair unpolled , as a token of their being free-men ; so have they preserved to themselves the liberty not to be polled of their fortunes by exactions . for by this means the king does not onely keep up his horsemen to keep under the rude common people , and repress the insolencies of their discontents ; but prevents the dangerous effects of displeased and unobliged greatness : which has been such a pest to france , that it has not onely raised great armies in it , but kept them so raised up to the waste and spoyle of men and treasure . for great spirits are impatient of diminution , and when they are that way as they think undervalued , meditate returns , edged from the irritation of rage and grief , which ever make a desperate medley , as in contarino's assault of forscari duke of venice appeared ; for that onely proceeded from the opinion contarino had that forscari was the obstacle to his admiralship of the adriatique seas . and so in other cases abundantly might be instanced , the avoidance whereof is that which dictates to a non provocation of great persons and parties , which is the reason the text sayes , nobiles non sic exactionibus opprimuntur . sed si illorum aliquis calumniatus fuerit de crimine , licet per inimicos suos , non semper coram iudice ordinario ipse convocari solet ; sed quam sape in regis camera , & alibi in privato loco . this clause presents the nobless not sometimes very happy : for since greatness is subject to temptation and envy , both which are productive of enemies , and enemies contrivers of accusations , and accusations too often believed , and proceeded upon before the truth of things be throughly examined , greatness is even in france a thing of danger : for , who can be secure there , where his enemy may accuse , and he not be capable to defend himself juridickly ; nay , how can innocence stand in judgement , if it may not be tryed per pares , persons of honour , as the peers of a nation cannot but be presumed to be . yet the text sayes this is the condition of the nobility in france , who , though they are priviledged , that in criminal cases they usually may answer and defend by their proctor , that they contribute not towards payments to the king , ( talia namque munera plebriis imponuntur pro modo suarum facultatum , as my * authours words are ; ) though i say , non sic exactionibus opprimuntur ] yet their persons are in danger and their fortunes too , by being accused and condemned clandestinely as it were . non semper coram iudice ordinario ] in common apprehension , is before the judges that judge according to the lawes of nations , and the customs of the country , and are men of law , and graduates in that faculty . but the notion of ordinarius iudex in france , as i have it from cassanaeus a french-man born , and a lawyer bred , is this , when a man is to judge a cause who has no law in him , but goes ( as it were ) according to the private instructions he has from his superiour , or according to the swing of his own will , having no rule to go by . now , though true it be that these judges purposely delegated , and termed ordinary , ( because they have but the learning of ordinary men in them , that is , they know no more of the law then is the law of reason ) ought to be ruled by the judgement of the lawyer , or lawyer 's assistant to , and associated with them in the commission , and so mostly are and proceed according to the course of the lawes in those cases . yet so sad is the case of the nobless there , that alwayes they are not summoned to a juridical answer ; but sometimes , yea , quam saepe , that is , sapissime , are summoned into the camera regis to hear their dooms according to their princes royal wills and pleasures : now , this camera regis is not paris the royal city , as london also here is , and thence in the statute of & e. . c. . is termed the king's chamber , nor the bed-chamber or chamber of presence , which the greeks called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , because it was arched on the top and had a convex figure , which they render by fornex , the archness of its figure being the same in building that the psalloides is in the body , argues state and united strength . hence camera signifies any thing that has an arch-figure , camera naves sunt archae & exiles , like close liters , or arks rather , which a philo calls , the sacred repository of the law , and the vessel fitted for their retention ; it being the custome of antiquity to make their chests for any sacred purpose arch-figured , as we see at this day in many old churches in the chancells of them : and these chests were the camerae of the church-untensils , plate , registers , copes , vestments , &c. wherein those times deemed the external majesty of religion to consist . this is some notion of camera , which , as to the text's sense , may ( as i conceive ) be the chamber of the king , where he lyes down to rest , for in military times princes had their pavilions in the fields with their armies , over which they had arches not onely to prevent weather and winde , but dust and filths accession to them ; and these were called aulaea , like the canopyes of state , monarchs to this day use to dine and sleep under ; some call them tentoria sericea : to these in our setled times , wherein princes have fixed courts , these camerae do succeed ; and the officer of state , that has the charge of them , is called camerarius regis : in france , le grand chambellan . none of these chambers does the text chiefly intend , but the sense of our text-master in alledging this , is to tell us , that when great men are in france under displeasure , they are summoned to the king's chamber ( not his chambre des comptes , or chambre du domaine , or chambre du counsell , or chambre dorée , but his chambre royal purposely erected as a court of censure and doom : for when any , that were of dangerous consequence , appeared , they were called to the king's chamber ; so were the lutherans in henry the second's time , and others down all along since ) to hear their doom . et alibi in privato loco , &c. up he goe , and his doom is privately adjudged him , without judgement of his peers , or defence of himself , mox ut criminosum , eum principis conscientia relatu aliorum judicaverit ; very hard to be condemned unheard , yet it must be undergone , in sacco positus absque figura iudicii per propositi mariscallorum ministros noctanter in flumin● projectus submergitur ] surely a judgement full of terrible cruelty , the iudgement on parricide ; for of old , parricides were scourged with bloudy rods , then put into a sack with a dog , a cock , a viper , and an ape , all alive sewed up with them , and they all cast with the sack into the sea. and though i confess no judgement can be too severe for such a villany as it is to kill the pater patriae ; yet this of giving an offender a cruel death , absque forma iudicii , is much more rigid then ( i doubt ) to god can well be answered ; for he being the father of mercies and the fountain of justice , delights not to see princes , in power under him , to be inclement and truculent , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as philo's words are , as not onely the punishers of them offending in making their lives a torture to them , but after depriving them of an easie dispach ; for this he accounts the errour of his entrust , and too near a compartization with those quadrupedial furies which he hath inferiorated to man in reason , and thence made the subjects of his empire : but that which he loves and commends in those earthly gods , whose lustres both of power and life are determinable , is , that they should imitate him in beneficence , in suffering the sun of their favour and the rain of their care to impend all their subjects ; and though they correct their enormities , yet they then should pity their infirmities , and bestow their compassions on them as men in nature with themselves ; and if this they would do , considering themselves 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. the divine artifice , whereby it hath exemplified its transcendency to the utmost capacity mortality can attain to ; their wills would be the law by the victory their goodness gets over the loves of men , rather then their persons and power be terrible to them : then would not that complaint of our text be so true as it is , qualiter & mori audivisti majorem multo numerum hominum quam qui legitimo process● iuris extiterunt ] for however some princes in the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and lustiness of their power may pish at calm and paternal exhibitions of themselves to their politique children ; yet , when experience the best master has ingenerated the calmness of wisdom in them , they will account it the onely rise to continuation and serenity : nor can any prince be thought , as lewis the twelfth was , a father to his people , but he that by justice governs , by prowess defends , by parsimony enriches , and by clemency obliges his subjects ; for fury and severity unallayed by that regal grandeur which uses them onely as physick , is not the endowment of kings , but the intemperance of sinfull nature , which , though it torments others for a while , yet ends in the reproach and dishonour of its practicers . and therefore let flattery prostitute truth never so much to the temporary satisfaction of licencious greatness , yet all things done beyond the rules of religion , morality , and national lawes , are enormia ; for since these are the squares and proportions according to which imperial architects should raise and carry on their politique fabrique , whatever in any dimension transgresses this , is enormous : and though men mince it , and write not so openly and with vehemence as our chancellour does of the absoluteness that is taken from colour of that maxim of law , quod principi placuit , which means nothing less then is imposed upon it to be its sense ; yet do they in their hearts conclude , that such things are detestabiliter , damnabiliterque perpetrata , that is , that they are sins committed by them against the laws of their government , and therefore in their nature detestable , and against the lawes of religion and therefore damnable : which doctrine certainly , as true as truth it self , if it had been canonized at rome , would have undermined that horrid artifice of secular policy which is conclav'd there ; and which wrought puissantly , and to a notorious degree of wickedness in the case of robert somercot our country-man , whom i read storyed for one of the foremost of the three elects for the popedom after the death of pope gregory : the card●nals being set to have an italian and not an english man ( and celestine as after he was called and not somercot ) made somercot away by poyson to prevent his obtainment of the chaire , which they feared otherwise he would have had ; but enough of this . for as our chancellour here took leave of the memory of these practicks to excuse his dialogue from any suller register of them , and to prevent the exasperation of his pen , which might else be keener then otherwise would be convenient ; so shall i , after his judicious example , desist the further comment on this chapter , the residuary parts whereof are onely enunciative of the design of this his exageration in what passages has concerning the people of france occurred , and concerning the subjects of england are further to be produced . and as on the text that concerned the people of france i have discoursed with all the veracity and modesty i could , acknowledging the french nation very wise , warlike , and prosperous , and their government best fitted for their clymate and people ; so shall i , in what follows concerning the just equity and excellency of the english lawes , and the condition of england's men under england's monarchs , write the truth and nothing but the truth , according to the modesty and humble submissedness i have herein endeavoured to express , and hope i shall be by my betters allowed to have accordingly acted , hoping , that god will give us of this nation grace , upon sight of the mercy we enjoy beyond others , to value out governours and government above others , and to pray for , and give obedience to the king , his parliament , and his lawes , now happily flourishing amongst us . for surely if there be any national government that has a symmetriousness to the government of heaven , 't is this of our native country ; wherein , as our sovereign resembles ( with reverence to god the incomparable king of kings and lord of lords i write it ) the supreme wisdom and goodness , being by the law said to be under no defect , and not possible ( as king ) to do wrong ; so his peers and commons in parliament do ( in their proportion ) assimilate angels and saints ; and his lawes , that divine charity which directs all the subjects to fear and love him , and to be at peace one with another . the consideration of which in this blessed ternary , might perhaps occasion that old saying , which thus is in a good measure made plain by it , regnum angliae regnum dei , which though i know to be commonly understood of god's particular patronage of england ; yet may as well be intended of the form of our government after the model of the heavenly empire : which premised , i humbly conclude this and enter on the following chapter . chap. xxxvi . in regno angliae nullus perhendinat in alterius domo , invito domino . as in the fore-going chapter he shewed the misery of the open country of france , where the souldier commands all , and makes the poor husbandman afraid to own himself master of the house he lives in , and labours hard to pay his rent for ; so in this he paralels the condition of the english-husbandman with it : and he begins first with that which is the life of all security , the house , which he sayes the common law does so preserve to the owners propriety , that no man can come upon his ground against his will but is a trespasser ; no man lodge in his house without his consent and against his declared minde but is punishable , and , as the case may be , a felon for so doing . now this the chancellour does to shew the just imperiality of the crown of england , which , as it depends on none but god , to whom onely our kings are ( as to their superiour ) accountable , ( the popes of rome being but * usurpers in their claim , and god jealous of and displeased at their insolent rivalry with him , causing a fire at lyons that burned the pope's wardrobe there , in which was that detestable charter which weak king iohn made to the pope to bring the crown of england into servage to the sea of rome , evidenced his displeasure that any testimony should be extant of this nations slavery . ) i say , as the chancellour by this instance of the text clears the freedom of the kingdom of england , so does he avouch the exemption of every subject in it from vassallage ; for as he asserts that the will of the housekeeper is warrant enough for a mans abidance in it , though he be not ordinarily of the family ; so doth he assure , that the will of the master not had , no man can long , if at all , lawfully abide therein : the reason whereof is from that common right which the common law does every rightfull claimant to it for aid , sub clypeo legis nemo decipitur is the rule , and this the justice of england does to withstand intrusion upon men by bold braving persons ; who else would take up their quarters , presuming on the courtesie they never deserved nor are ever resolved to require . for though the civility of the nation gives welcome , and did infinitely more in old times then now , to any man of creditable appearance , that came for a day and away , to any house of credit ; yet perhendinare ( which imports three dayes stay , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and under colour of that , differre in longum , de die in diem ) it denies to any without invitation , which invitation has ā more amicable sense then the invito domino ] here , for that is an act of the will , choice , and allowance , which the greeks render by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a calling of one to him by his word , letter , or servant , acquainting him when and what he is then and there to doe ; but this invito domino is as much as the master unconsulted with , and in defiance of , and so not onely without his privity , but against his publication to the contrary . when any man stayes in an house when the master bids him be gone , he is a trespasser , and may be a felon , because he does perhendinare in alterius domo invito domino ] for the law looks at the commencement of every action , and judges the effect according to it . and therefore if a man come forcibly into my house , and after he has so done i shew not my distaste because i fear ; yet the law i suppose will judge the force offered , and not qualifie it by my after-silence , quia quod ab initio non valet , progressu temporis non convalescit : nor will the law believe any man has a good intention to be harmlesly in the house when he enters into it uninvited , and stayes in it against the pleasure of the master of it , whose the house is , and to whom the lawes and charges of hospitality in it are accountable . si non in hospitiis publicis ] these are publick houses called inns , and being purposely appointed for receipt of strangers , if they carry themselves civilly and keep lawfull hours , they may presume the masters good will as long as they stay and spend their money in it ; though i make no question but if any man or men come to an inn , and stay there above three dayes and nights ( not having business , or being impeded travel by the act of god , or other unthought of accident ) he or they may be suspected and drawn to give account of their stay even in these houses : for the law raising them for strangers and travellers accommodation , intends they shall in the use of them be sanctuaries of resuge against the incommodations of journeyes , and nor lodges of disorder and harbours of vice . the word hospes , whence hospitia comes , the law defines to import a forein dweller which has an house , and because this house that is the receipt of those unknown persons that come to it , does empty the purse of their guests by heigths of charges for necessaries had in them , it makes the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the word used of old for a stranger which we use for an enemy , which if an host be , he is unworthy his place , for that is to be friendly and true to strangers . and of old before inns and hosts in them were in use , there were places of kindeness set apart to receive strangers , which places were called hospitalia or pro●enia ; hence iuppiter xenius was called the hospital god , and concerning affairs of these places they invocated him : and as these were residencies of amicableness , and the elder ages used them to maintain charity ; so were these certain emblems of kindeness intercurrent , which being brought with the repairers to them , gave them the assurance to receive welcome , as being not a cheat ; but one really in amity with them . these were , as heretofore i have mentioned , which might be as our tallyes clest in the middle , one part with the comer , another residing with the hospitallers , and without this brought and corresponding with the other part , they that came with them were suspected and not welcome ; which probably gave rise to the proverb with us , an unbid guest must bring his stool along with him . at first the entertainment in these was plain and homely , probably they lay in straw ; and had viands much like that in the holy-text , * where 't is said , iael set butter and milke before sisera in a lordly dish ; but when the greeks grew fortunate and effeminate , then their luxury spread its self over all their civility ; and by them was brought in great entertainments , not onely lodging of them in gorgeous chambers and rich beds , but also the first night entertaining them at a publick supper , and next day sending them pullen , eggs , apples , herbs , and all other country things : in reference to which perhaps the custome of our nation for the sheriffs to entertain and present the judges in their circuits , was a long time continued with us . to these sanctuaries , for such they were while the strangers in amity with them were entertained , ( which was for three dayes and yet is kept up in sundry places , where the chartree monks have convent ) during which time they are sanctuarized , and have security from the immunity of their residence , not to be injured , so faith a acursius ; and baldus ; as he is quoted in the margent of the (b) digest , adds , nota argumentum ex hac glossa quod malefactor non possit extrahi de hospitali sicut nes de ecclesia ; concerning these (c) tholossanus has fully written , that which i shall add , is , that antiquity giving so great honour and priviledge to these , they in time became abused , not onely to harbour idleness and enormity , but to charge the country in which they were with burdens in provision for them ; to remedy which there were lawes made to ease and relieve the people against the exactions of them . and though sanctuaries ( such kinde of hospitals ) are taken away with us by the statute of iacob . c. . yet inns and receipts for travellers , the hospitia publica in the text , remain : and the law takes great care that such there should be in all convenient places , and those in them so honest and so able to furnish them , that no necessary for horse and man shall be wanting , nor any rates put upon them but such as are reasonable ; by the . r. . c. . the gains of victuallers and hostlers is ascertained , and what they shall take for hay and oates over and above the market ; and though the strictness of the later clause in that statute be , by the stat. . iac. , & . repealed , yet the main scope of good using guests is retained : inn-keepers must take reasonable prices , and make good horse-bread and full weight under the penalty even of that statute of iacob . . this exaction of inns is punishable by the common law in leets , as being contra publicam pacem & fidem regni , and an enormity which dishonoureth the government , and imposeth upon strangers and men in need , who being unknown and far from home are unable to right themselves against it . and hereupon as the text sayes the law provides that inns shall have present pay , and men not run in arrears or take from them on ticket , vbi tunc pro omnibus qua ibidem expendit , ipse plenarie solvet ante ejus abinde recessum ; ] so doth it caution that the prices so paid be no more then they have is worth , consideration being had of the charges an inn-keeper is at to fit himself with all things necessary to entertainment , for house-rent , servants , dyet , wages , spoile of goods , candle , and all other things of house-keeping considered , together with the uncertainty of guests , and the casualty of fire considered , either they must take great gains , or live they cannot without becoming beggars ; which the law considering , allows them a convenient latitude , which , those that will encourage guests to come to their houses as they travel by them , do not abuse . nec impune quisque bona alterius capit sine voluntate proprietarii eorundem . ] this , though it be the common law , yet is confirmed to the proprietor against his disseisor by several statutes ; for , because power would often make bold with what was anothers , and greatness sometimes thought it durst not be refused , because it was under its opportunity to ruin what did not crouch to it , lords and great mens servants seising for their masters uses what they pleased without and against the owner's will , & under such a price as they could not afford it , the kings of engl. consented to laws of restriction , not only to themselves , as in the statutes of e. . c. . e. . c. . h. . c. . r . c. . making it penalty felonious to take from any man what he is lawfully possessed of without his consent , although it be for the king 's or queen's own uses , so are the statutes of e. . c. . & r. . c. . for though fit it be that the king , being the head of his subjects , and the noble he that impregnates this whole politick body with life and lustre , should be supplyed from this body with all things necessary to his subsistance for so beneficent purposes : yet does the king think fit , out of grace to his people , not to make his prerogative their punishment , but to live and let live , that is , to cherish their industry and good-will , by ease of , and justice to them , as in greater , so in lesser things . and thus our sacred kings have in all ages done to prevent the insolence and deceit of their purveyors , who , to enrich themselves , have abused the king's power to the peoples impoverishing , that as none can purvey but for the king or queen , or the royal issue ; so none can for them , but by their special warrant with the owners consent , at a reasonable value by the constables of the town assessed , if the buyer and seller cannot agree to pay ready money or at a certain prefixed day , so is the chapter of magna charta , e. . c. . . e. . c. . e. . c. . e. . c. . e. . c. . e. . c. . r. . c. . h. . c. . h. . c. . h. . c. . h. . c. . h. . c. . e. . ● c. . all which and sundry others since made , being in affirmance of propriety , and that by the king himself and his great-men , for the common good declare their joynt and several zeals for propriety ; for the common law ( saith sir ed. cook ) has so admeasured the prerogative of the king , as he cannot take nor prejudice the inheritance of any ; i 'll add , nor can or ought the subject to entrench upon his prerogative , but to hold himself bound to give unto caesar the things that are caesars , for the law also is so , and so is and ought to be owned ; which i the rather note , because protection and propriety , that is , possession , is no further , or otherwise due to any subject by the law , then according to his duty by the law he gives subjection and aid to the king , defender of the law ; and if he justifies the possession of subjects in their propriety , there is reason his subjects should justifie him in the propriety and possession of his power . which since they mainly do by owning according to the law his just prerogative , it becomes them to consider their duty in the point of religious and legal obedience ; for by the favour of king's have good lawes been made , and these in particular which conserve property according to the notion of our text. neque in regno illo praepeditur aliquis de sale , aut quibusdam mercimoniis aliis ad proprium arbitrium , & de quocunque venditore providere . this shews the liberty of english ingenuity , that it may work upon any thing it judges a profitable imployment for it . for as the enhansing of any commodity by one person or more , with exclusion of others , is accounted a monopoly , and so against the common law , and against the statute of iac. c. . so , to deny any subject to deal in what he sees most convenient and gainfull for him ( the commodity not being forbidden , ' or dangerous to the publick , but such as consists with honesty and usefulness ) i humbly conceive to hinder him of this ( where no topique priviledge according to law is co-operating with such impedement ) is to abridge him of his right ; for the text sayes , neque in illo regno praepeditur aliquis . ] all sort of victuals men may eat , and all sorts of ordinary cloaths men , that can pay for them , may wear and in any merchandise men in open places by buying and selling may trade , and with whom they will buy and sell or not they may please ; the land is open for all industry , and trade both home and forein not embargued : for though the corporations for trade , such as are the merchants-adventurers , and those that trade to turky , muscovia , eastland , the corporation of the merchants of exceter , and the east-india's , were first erected and since continued to regulate trade , and to prevent , by the prudence of their own experience the overclogging of markets , which is apt to be when every person that will , may trade , and for what proportion he pleases , to the ruin of the commodity ; while necessitous men , that must sell , sell at the rates foreigners will buy , and so the purses of the subjects of england are emptyed to fill those foreiners , to whose markets such merchandises are so unproportionably carried . i say , though on these and other grounds , corporations restrained such from trade to those places who were not members and submitted to the government of them ; yet in all other cases trade was ever free ; not onely to aliens , who by the stat. of e. . c. . e. . c. . r. . c. . h. . c. . h. . c. . and many others by which they were permitted to sell the commodities they brought in gross , or in retail , ( notwithstanding any charter to the contrary ) but also to native subjects , who , during the time of their princes warrs , being charged , ought indifferently to enjoy all the benefits of their most happy peace , so sayes the iacob . . which therefore gives liberty , notwithstanding all former charters to the contrary , to all his majesties subjects , from henceforth at all times to have free liberty to trade into , and from the dominions of spain , portugal , and france , &c. so the king be paid his customs , and the freedoms of corporations , cities , and towns not infringed ; so that the like restraint on salt in france , is here on no merchandisable commodity whatever , other then such as is charged by act of parliament , or royal mines , which are mera regalia , as the tyn in devonshire and cornwall is , which being the king 's in the right of his seigniory in the dutchy of cornwall , is his commomodity , and from his farmers to be bought ; but once of them bought is freely to be traded in . rex tamen necessaria domus sua , &c. ] concerning this , see the foregoing notes on this chapter , and the several statutes therein quoted , which do confirm the text in the severalities of the chancellour's assertion . neque rex ipse per se aut ministros suos tallagia , subsidia , aut quaevis alia onera , &c. concerning this , see the notes on the ninth chapter , which do confirm what here is in our text. blessed be god and our kings , the case of england is not like that of rome , wherein , every man of power thought himself but pitifully accommodated , if he did not set his foot upon the neck of the common wealth , and trample down the majesty if that to set up his own greatness : but such as makes the generality of the subjects rich and happy , and the prince happy in governing such wealthy and well-ordered people . and by reason of this freedom is it that the text sayes , that the poorest man in england uses fructus quos sibi parit terra sua ] that is , eats , drinks , sells , wears whatever he has growing ; yea can dispose of any emolument that he gets propria , vel aliena industria , that is , by his labour or others kindeness to him , ad libitum arbitriumve ] as he pleases , without asking any leave to spend or give it ; for though a man may not burn his house ; because that is destruction and may tend to the ruine of other men , whose houses by contaction or neighbourhood may be burned also ; yet any man may fell his freehold or pull it down ( no custom being in the mannour to the contrary ) and use his land to what kinde of purpose , not forbidden by law ; he pleases : so much does the law of england favour propriety , that it submits every thing to it that may consist with the publick and other private interests intermixed with it . vnde inhabitantes terram illam locupletes sunt , abundantes auro , & argento , & cunctis necessariis vitae . this vnde relates as well to the freedom of trade , as to the subjects exemption from unreasonable arbitrary and un-parliamentary taxes ; for trade being the way to get estates and freedom from vast contribution to the publick ( except in extraordinary occasions , when all lying at the stake , all is due to the common-wealths service and support ) being the means to preserve an estate so gotten ; the locupletation and enriching of the nation may be reasonably ascribed to both , and they both be allowed the vnde here . in that then the subjects of england are said to be losupletes , that is , assidui , for so the law of the twelve tables defines it , ab assibus , id est , aere dando , when men are such as answers every thing that is required of them , this is one sense of (a) locuples , though the genuine one be from the great possessions men have , for which they are termed locupletes : locuples à lata hamo , hoc est locorum plenus , qui pleraque loca , id est , qui multas possessiones habet , saith festus ; and with him accords (b) quintilian : and (c) tully , when he writes semper enim boni assiduique domini , referta cella vinaria , oleariae & penaria , villaque tota locuples est , abundat porco , hedo , agno , gallina , lacte , caseo , melle , &c. intends a man rich in real estate , lands of great revenue , rents of liberal income , such as our law calls men of great demeasnes and freeholds of inheritance ; for though in the largeness of the word , and the acceptation of authors , any person of note and thing of value is termed locuples , as annus locuples frugibus by horace ; locuples ac referta provincia , locuples copiis civitas , copiosa plane & locuples mulier by tully ; locuples & speciosa eloquentia by quintilian ; and plato with pythagoras are by the oratour termed locupletissimi authores : yet the more proper notion of locuples is from fixed estates in land. and thus the chancellour sayes the subjects are locupletes , some of them rich in real estate , others in personal , abundantes auro . abundantes auro & argento & cunctis necessariis vite ] this is meant of personal estate , which consists of movables , money , plate , leases , merchandises , houshold-stuff , corn , cattel , and other things money-worth ; which are called necessaria vitae , because without them there is no living : for money being the nerves of all commerce , and that which answers every thing in its exchange for it . in the terms auro & argento ] are the general notations of riches and plenty ; so abraham is said to be very rich in cartel , in silver and in gold ; so in ioseph's brethrens sacks , there was silver and gold ; so balaam joyns silver and gold together , numb . xxii . . & xxiv . . and the gods of the nation are said to be of silver and gold , psal. cxv . . dan. v. . and so in sundry other places : by which it appears , that our chancellour speaks according to the account of portable wealth , which is reckoned by money and plate , silver and gold ; and in this he sayes the subjects of england do abound . for though england has no mines of gold or silver , as diodorus sayes france of old had , which forcatulus , in love to his country perhaps , is ready to believe , and make publick for franc's glory ; yet england has such staples of cloth , wool , tyn , lead , and other such like useful trafficks , that will transmute themselves into gold and silver , and by turning and winding the peny in trade will advance the rent of land , the revenues of custome , the hire of workmen , and the plenty of living ; which is equal to the having gold and silver in kinde , since it not onely is equivalent to , but in some degree better thus then it , especially when by this means there are caetera vita necessaria purchased , which is household furniture of all sorts ; so that the subject is not onely rich , but accommodated neatly and correspondently to his condition , having his house and its appurtenances compleat , as well as his purse full . aquam ipsi non bibunt , nisi quando ob devotionis & poenitentia zelum aliquando ab aliis potibus se abstinent . this is purposely inserted to shew , that necessity and choice are two different impulsions to the drinking of water . in france the peasant drinks it to save charges ; here , when it is drunken , 't is upon religious accounts , for penance , and humbling of the flesh ; which is well added by our text to bring the poor's draught into the possibility of a prophet's reward , and of a prophet's practice , self-abasement , which is the sense of those three words , devotion , penance , and zeal , or rather the zeal of devotion or penance , which is that which alone is in them commendable ; for there is no devout soul , that is penitent for sin , and casts himself down before god in confession and contrition for sin , but is willing to deny himself any thing that is fewel to the fire of his carnal combustion : which because liquor of mettle is , he drinks water : now this the chancellour sayes the english do thus drink but not for poverty ; for so the peasant does not aquam bibere , but drinks beere and wine , the former commonly , the other upon feast-occasions , when also they eat all sorts of dyet that the season and country yields , and their purses and stomachs will reach too , whether fish or flesh . pannis de lanis bonis ipsi induuntur in omnibus operimentis suis ] as all merchandises , furniture , meat , and drinks are free , so all apparel . it 's true indeed here have been sumptuary a lawes to restrain such and such things to particular degrees ; but those have been but temporary and short-lived . for though inordinate and excessive apparel , as the words of the stat e. . c. . are , is a great waster , especially when it is such as nero's was , who never wore a sute of cloaths twice , or heliogabalus , who did not onely make luxuriant garments for himself , but leonibus & bestiis nobilissimas parabat vestes ; and so lollia paulina , whose garments were all trimmed with pearl ; or as agrippina , aurelian , and others , who all were very extravagant in them , these indeed 't is fit should be restrained and denyed , if men will not deny themselves the having them . but for any other cloaths to be denyed , though it has been , yet at this day it is not ; the nation being so full of gentry in all places , that the younger brothers , no less gentlemen then their elder , think themselves , concerned to oppose it , being loth to see their industry , secundated by god , to be eclipsed by lawes in disfavour of them . etiam abundant in lectisterniis & quolibet supellectili , cui lana congruit , in omnibus domibus suis , nec non opulenti ipse sunt hustilimentis domus , necessariis cultura , & omnibus quae ad faelicem vitam exigantur secundum status suos . this further sets forth the riches of the house-keepers of england in the furniture of their chambers and rooms for their recreations and callings , (a) abundant lectisterniis sayes the text ] these we call bed-steeds at this day ; but of old they were the beds that they eat upon in their solemnities and feasts devoted to their gods. hence properly lectisternium ( from lectus & sterno ) implyed the preparations in the capitol for iupiter , iuno , and minerva ; concerning these livy and valerius maximus write : hence plautus terms him that doth lectum sternere , ( as we say ) cover the bed or table , lectisterniator . with us one of the chief furnitures of houses are these lectisternia , not onely couches but beds well furnished with curtains , vallens , counterpanes , hangings , blankets , pillows , tables , &c. which the text terms supellectilia ] these the (b) civil law accounts as aforesaid , and c pliny too in these words , totam supellectilem ligneam ; every thing also that was usefull and gracefull in any condition or course of life was hence called supellex , (d) turnebus uses philosophiae supellex , and servi supellecticarii for the wardroper , and e tully has oratorum supellex , and vita supellex , and cogitatio supellectilis ad delicias , lauta & magnifica supellex . so much is supellex changed in its sense from what it first imported , namely , the tents or receipts of ambassadours when they went their journeys , which being covered with leather , as our sumpter-horses lading , and our portmanteaus at this day are , ( which carryes the journey-provision , and thence were called supellectilia ; ) that now every implement not onely of the house is couched under supellectile , but every furniture of what nature soever . here in our text supellectile cui lana congruit ] signifies the furniture of beds , such as i pre-described ; which , though they are now made of silks in great abundance , yet in henry the sixth's time were of home-bred , and home-span making . de lana ] for our ancestours in the golden age of thrift , kept their families un-idle , and not onely killed the provisions they bred , but also made the linnen and woollen they wore ; which profitable practice being brought to maturity in the house , the womans kingdom , our law terms them spinsters from that property of a virtuous woman , that so to do solomon describes , who certainly wrote what in that case was the conclusion of wisdom : for the house being the place of residence and security , does then best please a noble master and mistris , when 't is well arrayed and furnished for all purposes of entertainment and convenience ; which because the house-keepers of england have to a greater proportion then is usual any where else , yea , to so compleat a degree , as no addition is almost possible to be made thereto , the text sayes , they are opulenti in omnibus necessariis ad quietam & felicem vitam , secundum statum suum . nec in plasitum ipsi ducuntur nisi coram iudicibus ordinariis ] see the notes on the . and . chapters , wherein , what concerns the residue of our text in this chapter , is written upon ; which being well-weighed , and the differences of despotique and paternal governments considered by the good and evil effect of them , his conclusion commended to the prince , is , that the lawes of england are the best rules of governing england by ; and that those princes , ( progenitores tui as his words are ) who declined the observance of them , were led there-from by the prepotency of passion and the neglect of justice , which they , as princes , should ever have prized above all , which is modestly the substance of that which he expresses in those words , et nonne ambitio , luxus , & libido quos praedicti progenitores tui regni bono praeferebant , eos ad hoc commercium concitabaet , ] which he requests the prince to consider as the monition of his loyal servant , for his royal peace and fame , which are best propagated and advanced thereby , and so he concludes this chapter . chap. xxxvii . sanctus thomas in libro quem regi cypri de regimine principum scripsit , dicit , quod rex datur propter regnum , & non regnum propter regem . this chapter commences with a quotation from saint thomas , and from that little tract of his , which in very great duty and devotion to the dignity and piety of kings , he wrote to the then king of cyprus ; it is in the order of his works placed in the seventeenth tome amongst his opuscula : and though it be amongst his breviaries , yet it has many valuations with me from several adjuncts of conspicuity , which justly may be attributed to it . the first whereof is from the authour thomas aquinas , whom the text terms sanctus thomas , which title our chancellour not onely gives him as he was sanctified by divine grace , and a member of that mystical body of christ , but as also this holy man was canonized by pope iohn the . about the year . and that not so much for the piety of his life , as for that miracle which by invocation on him is pretended to be wrought on his decayed niece . now though this canonization ( to write gently of his holiness and his saintings ) have some things in it , which in the design of them presume those that by it are ( as far as it can ) honoured ; yet the many natural , religious , learned accomplishments he above the rest of his contemporaries had , render him semi-divine with me , though he were abstracted from his registry in their calendar ; and these ( amongst many others ) are , first , his origin was noble , aquine in campany , and from parents in it , as some write , descended from the earl of apulia and the kings of sicily ; or as others from the lombard-race , and that earl of aquine who lived in great 's time about the year , which honour of his bloud and birth no doubt kindled him to great endeavours , and to such expressions of an holy magnanimity , as seldom appears in the brats of plebeity . secondly , the prediction of his after-proof by an holy man , who , when his mother was with childe with him , told her , she was with childe with one that would be most famous , adding his name , profession , addiction , and acceptation with god and the world , nec res sanctissimi viri mentem fefellit , saith his biographer . thirdly , his early entry upon serious study ; for coming very young to naples , he quickly mastered logick and natural philosophy , disputing so notably in them , that every one that heard him admired , and expected a sutable progress . fourthly , his declension of applause and publick suffrage , cloistring up himself in a convent , notwithstanding the many temptations and civil violences he had expressed to further his conspicuity . fifthly , his obediential obstinacy in embracing this order of religion against the commands of theodora his mother , and continuing in the love and labour of it , maugre his mothers artifices to remove him , and his brothers vehemence in rending , tearing , and abusing his priestly habits . sixthly , his famous masters , iohn st. geminian and albertus magnus , who were so proud of him , that they would not suffer him to lye hid , but so proclaimed him to the world , vt ●a lucerna non jam sub modio sed de sandelabro emicaret . seventhly , his constancy and abnegation of himself for christ's sake , refusing a large patrimony with his brethren , and after , the great archbishoprick of naples , when clement the fourth presented him to it . eigthly , his capacious memory which held whatever was reposed in it . ninthly , his general admiration and acceptation with all degrees , bishops , archbishops , cardinals who frequented his readings , and grew famous by them . tenthly , his choice friends clement the fourth , vrban the fourth , gregory the tenth , lewis the holy of france , cardinal bonaventure , ptelomaeus luce●sis , and reginaldus privernas , birds of a feather fly together ; i omit the miracles ascribed to him , as that of the woman of st. sabins monastery , reynald , &c , because i think them questionable : but these prementioned excellencies concentred in him , made him a vessel of much grace , fit to glorifie god here on earth , and fitted for god's glory of him in heaven . this , this , is the saint thomas , the authour of the book quoted by our text-master . the book this matchless authour wrote , was of the government of princes , a very high subject worthy his incomparable genius , which made its nest with the stars , and thought triter texts were beneath the majesty of its endowment ; that it was his , is praise enough to it , and that he wrote to a prince of princely qualities and offices , commends his prudence in so proportionate a choice : for surely he must have some rayes of a princely minde in himself , who has the confidence to write to princes of matters purely princely , and to treat aptly and with counsel of those secrets which are lock'd up in the cabinets of grandeur , and to which none can unsacrilegiously approach , but those that are pious , modest , loyal , and prudent ; and such in every degree saint thomas therein approving himself , directed his thoughts to the then king of cyprus . these things premised as emphatique in that our chancellour here quotes out of him , we will humbly and in god's fear consider the particulars as they are pertinent to the order of our commentary . rex datur propter regnum & non regnum propter regem ] this is a truth no wise man can , and no just prince will deny ; for god instituting government in nature , which requires something regitive in every multitude , and having in that institution a regard to the generality of his creatures and the propagation of it , though he place the power of order and jurisdiction in one or a few , yet does he it in order to those many whose good he therein chiefly eyes . for in that god gives one the prerogative and jurisdiction over multitudes of others , 't is not as that one is such numerally , but as that one in number , is many and all in dignity , as having a divine vicarage in him , in the worth whereof he 's worth of them , the sun , shield , father , oracle , the all of them . and hence , though true it be that the philanthropy of god displays it self in putting the many of his creatures under one for their good and profit , which is rex datur propter regnum ; ] yet true also it is , that though multitudes are not made for holocausts to the rage of princes , which is non regnum propter reg●m ] yet comfort , observances , and supports of princes they are appointed to be , and princes that love , govern , and discipline them deserve , ex opere operato , they should be such to them ; and therefore god has endowed princes not onely with such qualities as are attractive of subjects loves , and have cogency on the wise and worthy of them , justice and generousness , whereby their hearts are pleasingly and to their profit stolne from themselves and set on their princes with resolutions of loyalty and reverence towards them ; but also with such adjuments of extern terrour , as shall make the good safe in their fidelity , and the refractory punished for their mutiny and disorder . now this doctrine of the text quoted out of aquinas , all good princes have in the sense of st. thomas , and all good authours owned , especially our own ; so is the sense of the preamble to the e. . c. . shewing , that princes as fathers are to make lawes best suting to the tempers of their people and to the time of their reigns : so king iames of blessed memory acknowledged the duty of kings in those words , as a loving father and carefull watch-man , caring for them more then for himself , knowing himself to be ordained for them , and they not for him ; and therefore countable to that great god who placed him as his lieutenant over them , upon the peril of his soul , to procure the weale of both souls and bodies , as far as in him lyeth of all them that are committed to his charge , &c. not to encourage their subjects petulancy and peremptoriness , ( for though princes are so generous that their subjects cannot ask more then they can give , yet princes may reserve to themselves the incommunicable iewel of their conscience , and not be forced to part with that whose loss nothing can repair or requite ; ) but to minde themselves of their account to god , which as fathers they are to make , and to their subjects , as to their children , to express ; and by which they infinitely deserve more love and support then ever they have from them , be they never so dutiful and open-hearted to them . and therefore kings being as angels , dati à divina bonitate propter homines , non solum christianos , sed & gentiles , & cujuscunque generis atque conditionis , as * phavorinus sayes of them ; whatever can be attributed to them without sin and flattery is very highly due to them , and but the bare duty and not supererogation of subjects to them . and therefore this position is true in its just and prudent sense , in which onely our text-master quotes it , and i after him discourse on it ; for in the anabaptistique and iesuitique sense of judicial power in multitudes over their supreme magistrates , 't is treasonous , execrable , irreligious , anti-scriptural ; 't is all that is pestilent to monarchies , dishonourable to religion , and every way unsafe for the sacred persons of princes . concerning these things then , i having written in my notes on the , , and . chapters of this book , i shall pursue it here no further , onely pray , that princes and people may ever keep close to the lawes of their sovereignty and subjection ; for otherwise , nulla est securitas , sed omnia sunt incerta cum â iure disceditur , nec confirmari quicquam potest quod positum est in alterius voluntate , ne dicam libidine , as aquinas his words are . quare rex qui hec peragere nequit , impotens est necessario judicandus . sed si ipse passionibus propriis aut penuria it â oppressus est , quod manus suas cohibere nequit à depilatione subditorum suorum , quo ipsemet eos depauperat , nec vivere finit & sustentari propriis substantiis suis : quanto tunc impotentior ille judicandus est , quam si eos defendere ipse non sufficeret erga aliorum injurias ? here the chancellour shews , that as the mastery men act over themselves , is more noble then that they can over others ; so the weakness men expresse in being conquered by their lawless wills and reasonless passions , is more notorious and defamatory then to be victor'd by an adversary : and this he applies in the reason of it to princes in order to themselves and their subjects ; for god having endowed them with divine souls , and with authority over their subjects , men in common nature with them , and to whom they as fathers , shepherds , and guardians ought to evidence themselves ; for such to sauciate and exhaust them , and by a leontine voracity to consume them and theirs , and all to bring their wills to be the law , and their pleasures the iron-saw by which they hackle the persons , fortunes , and freedoms of their poor vassals , is an act of truculency , so altogether unmanly and irregal , that polybius sayes , nothing is more ●●●crable then the injury and avarice of governours ; yea , so to doe is not onely to be an enemy but worse then an enemy , a worrier of the flock he by office is , and by affection pretends to love and keep . yet this is the unhapp●ness of absolute greatness , that while it musters and marshals forces to evict forein assault and subjects sedition , it self is found guilty of violence and depredation upon the lives , estates , and serenities of its subjects , to whom because it does by a pravity of will and a vicious affectation , which it may if it will resist , do that which is unjust , therefore is impotentior less virtuously just and abundant in true fortitude then that prince is , who , though he has force , yet dare not fight , because his number is not such as he promises himself victory by ; and so by fear suffers his subjects to be spoiled , whom , by a manly venture and a masculine performance , he might have secured . now this impuissance our chancellour layes down as god's punishment of vice , which so allayes the soul , that by uninnocencing it , leaves onely in it a pavidness and irresolution to any act of heroickness , that look as an unchaste wife cannot comfort herself against all the infirmities of life and crosses of her marriage state , that she has a good conscience to god and her husband , whom by disloyalty she has not abused ; so a prince that is never pleased better then when he by negligence reduces himself to straits , and then mercilesly relieves them upon his subjects , depilatione subditorum ] frequently ; not once and away , but to such a proportion as it may be said , depauperat subditos : ] and to suffer his subjects so to be made miserable by it , as nec sinet vivere , & sustentari propriis substantiis . ] surely thus to put the yoke of servitude on subjects , to gratifie the licentious insubjection of the prince's soul to reason and religion , seems to bode ill to any prince that is guilty of it . and therefore praxaspes , cambyses his favourite did friendlyly by his master , whom , when he saw persianly luxurious and rubified by an high and ranting compotation , he with civil affection and majesty of prudence , admonished him from reiterating such a kingless jovialty , telling him , that kings , who are the chiefs of nations , on whom all their eyes are , and after whose examples they all do , ought to be wary what they do , least by an ill president they undoe thousands of their subjects ; for one ill example shall more pervert then many good lawes can rectifie . and therefore one of the most kingly qualities , that mortality is capable of , is self-mastery , because where that is endeavoured by us , and from god consolidated to us , we are able to keep our prospect into things clear , and not judge by the false glasses of extremes , which magnifie or diminish , multiply or lessen , as our addictions to those vices are more or lesse prevalent , or intense : for still judgement being obfuscated , our power is transferred to that we are enjoyed by , which is the victorlust . therefore where ever wisdom resides in princes , i mean not onely cathedrally but personally , there is in those princes a constant study to keep free from all preoccupations ; and so to ascribe to others , as not to exclude themselves the liberty to consider and judge what they themselves are to doe . and this truely i think we of this nation have very really and to a miracle of regal constancy , seen in that once father of us all , whom i take leave frequently to quote as my oracle , king charles the first , whom no adversiry , no eclipse , not even that of death , could make recede from his resolution of patronage to the church , the law , the crown , the subject , to all these he being firm , gave not way for fear or hope , but quitted himself as a christian , whose graces had mastered his infirmities . and the second to him is his son , our now gracious sovereign , who by that fixed immovableness that he , notwithstanding all temptations to the contrary , retained , and in the act of oblivion and indempnity expressed , which he calls , the principal corner-stone , which supports the excellent building of this government . declared such a piece of fatherly tenderness and ●iety , as could proceed from no heart but such an one , in which god hath treasured up a stock of mercy , and justice , and wisdom to redeem a nation , they are the words of his majesties great chancellour ; and of them i may say in budaeus the parisian chancellour's words , mercurialis hic sermo , mentium sublimium interpres est , mirificorumque sensuum enarrator disertus & copiosus . but i return to the occasion of our instance , which is , the necessity of power in princes to refuse passions when they are not co-incident with reason , which power unless they have , be they never so great , they are impotentiae nexubus vinculati , ] and with king iohn will put their crowns under servage rather then not be revenged of their opposites : which ill habit and distemper of soul is that remain of sin unmortified , which thief-like having once crept into the house , opens the doors and lets all its comarado's in to him ; and so this , being the effect of incontinence , not keeping desires within their prison , carries them to all the expressions of vageness and immorality , so that , no bounds being observed , they lye open to all kindes and all degrees of transport . 't was a rare charge athelstane gave the fathers and others in the council of gratelean , i would have you , saith he , doe by me as our lord jesus commanded we all should doe ; doe as we would be done by : give me therefore onely what is my right as your king , and keep what is god's right to his use , and what is yours to your selves , that none of you or your creatures may by wrong-doing deserve and have the displeasure of god and of me , thus this king , whose potency over his will and passion rendred him more like god then his throne did , without which he had been but polyphemized , goodly statured , yet defective in the main instance of and ingredient in his admirableness . by this then it appears that our law considering , and our princes willing themselves to be considered politick monarchs , whose soveraigntyes admit mixtures of paternity to them , did onely intend such practice of power over their subjects as should render them able to support themselves by their subjects , and willing ( their subjects in such subjection to them ) to preserve in the free use of what god , nature and industry had made theirs . this is the sense of all that the chancellour doth or can write on this argument , for the glory of a king is to be liber in his prerogative , and potens in his subjects ; so is the king by his , how ? his virtue-regal secures himself and his subjects erga propriam passionem & rapinam , and so declares him and them liberi . ] and then that he is able to defend them , eorum quoque bona & facultates ] and theirs from assaults of enemies , thieves , robbers , and seditions by sea and land ; this declares him potens by them , and they potent under him . for of all things in the world the most sovereign expression of wisdom is , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. to keep close to the lawes of our country and the civil customes of our fore-fathers , and to live by the written lawes , and by them to judge of all men and things , which happy compact accomplishes that felicity which * polybius sayes licurgus brought to his country , when , by the right settlement of equality between men , he did so cement them , that they did joyn together into one common soul and city of civility and wisdom . for though wise alphonsus of arragon , whom panormitan stiles regum gloria & sapientiae exemplar , thought it solaecismous reges ab aliis regi , & duces ab aliis duci , calling those that would do nothing without their councils concurrence , consiliariorum mancipia ; yet that maxime of so doing will remain the eternal honour and security of kings : for , since the lawes of nature and nations prescribe it , to do otherwise is to be injurious to their durable and wise enactions , which the pristine kings , polybius gravely tells us , did so devoutly abhorr , that as they were chosen for their abilities of intellect and resolution ; so did they not so much as think of bringing , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. their government under the vassallage of their lawless and corrupt wills , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , but invigilated their charges and were not haughty and rigid but calm and familiar with them ; and by this preference of justice , lenity , and temperance to fierceness , wrath , and luxury , which plato prescribes as the very necessary project of princes , and which renders them truely worthy ; and therefore the delight and blessing of their subjects . this then to be able to doe , notwithstanding the temptations of self-accommodation to the contrary , is to be potentior , liberiorve ] then any king can be who can deny him nothing , will and power can accumulate to him ; for this which sufficit scipsum debellare , as the text's words are , is onely the felicity of those moderate and virtuous kings , who , because they know they are delegated by god to rule according to his method , exalt righteousness , and are themselves thereby exalted : quod potest & semper facit rex politice regens popalum suum quare experientiae effectu tibi constat princeps , progenitores tuos qui sic politicum regimen abjicere satagerunt , &c. this clause the chancellour adds , to shew the ill success princes have in england had , who have ruled praeter morem majorum ; for though we have here been blessed ( as i said before ) with many most pious and just princes , who have so ruled , as became england , wherein , to use plato's words of greece , men ought to be virtuous and free , and lovingly to live together , and are onely to be kept such by the lawes , their delight and buckler : yet some we have had , who , though i say not they endeavoured politicum regimen abjicere ] yet by governing otherwise then according to the strict lawes , brought infelicity upon themselves and their people . for this nation consists of men born and bred up to freedom , and if they see their prince as milde and vigilant , so just and valiant , they will admire , assist , and obey him , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. as convinced of his kindeness and good offices to them ; as they did in the general excellent temper of the time of queen elizabeth , which is observed by the great minister of our state , to be full of blessed condescension and resignation of the people then to the crown , and the awfull reverence then they had to the government , and to the governours both in church and state : so , if they perceive the contrary in the effects of unwarranted actuations of power , they grow sowre and displeased , setting themselves to disappoint his deviation , and to own the law and customs of ruling , in which are deposited the subjects security and the majesty of the prince , which amounts to that of the text , non solum in hoc non potuisse nancisci potentiam quam optabant , videlicet , ampliorem , sed & sui binum , similit●r & bonum regni sui , per hoc ipsi discrimini exposuissent & periculo grandiori ] for such princes , not considering what the adversity of popular troubles produces , and what amidst them to do , being deceived by the meretricious suggestions of parasites , who bewitch them with their delusions , do draw on themselves and their confidents those difficulties that ever end in disquiet and sometimes in worse ; so befellit to ed. . probably one of the princes intended by our text-master , for he being seduced by giddy gaveston a foreiner , who laboured to bring in such absoluteness as the lawes of our kings do not approve of ; and that not for the king's profit , but that this favourite and perverter , who ruled him , might thereby rule all , so far inflamed the discontent and jealousies of the peers and commons , that this butterflie , that was so gay in the summer of the king's favour , must be accused and apprehended , to the performance of which they so strenuously and with incessancy applyed themselves , that they put him to death , as a subverter of the lawes and a publick traytor to the kingdom , and when he was dispatched , not without the kings great affliction , the despencers father and son succeeding to the king's favour , mis steered him likewise , so that the king led wholly by them , and all things following the counsel and appointment of those gratioso's , neither earl , baron , bishop , or other could do any thing with the king but by their favour and mediation , they became so execrable that they were forced to fly ; and the king himself that had lost his subjects hearts for their unhappy sakes , becomes a prisoner at kennelworth castle , and was ever after unhappy : which i observe not as a virtue , but the sin of the nation ( for bonum benè ) good lawes may be evilly stood for ; and evil men removed by evil means become the sin of a land ) but to clear the truth of the text , and to applaud the prudence as well as piety of our well-advised princes , who do nothing of importance without their councils advice , and declare no binding pleasure but either by matter of record ( lex praecipit & rex praecipit being convertible ) or by some declaration in affirmance of known and undoubted lawes , which considered , the subjects of this land have ecchoed back the filial duty that this paternal obligation merits of them , as knowing ( to use the words of a most noble and eminently accomplished gentleman , who now is deservedly honoured publickly by this nation ) that the strongest building must fall , if the coupling pinns be pulled out ; and therefore our care ( saith he ) has been to prepare such constitutions , that the prerogative of the crown and the propriety of the people may , like squared stones in a well-built arch , each support the other , and grow the closer and stronger for any weight or force that shall be laid upon them . tamen haec quae jam de experientiae effectu practicata , potentiam regis regaliter tantum praesidentis exprobrare videntur , non ex legis sua defectu processerunt , sed ex incuria , negligentiaque taliter principantis . this is added to shew that the absolute power of kings , if just , is much more tolerable and to be admired , then that , which under the pretext of it , is practiced by some that rule by it ; for if there were a consideration of subjects as the mines and quarries out of which the gold and silver of princes incomes must be fetched , and they were by princes studied and secured , that so they might the more safely bring their rich ladings to the port of their princes exchequer , and having paid their duty there , make the most ( with their prince's blessing and good will ) of what is theirs neat and clear , as by the rules of justice under the absolutest monarch in the world they ought , then would they have encouragement to blesse god and their prince for the mercy of a government , which did thus permit them to be happy under the allegiance and justice of it . for it is not the strictness of government associated with justice , that makes subjects grieved and discontented , ( no more then the vigilant eye of a prudent husband over his beloved wife makes her discomposed , for this being an argument of a wise minde to keep her to himself , and to prevent all bold attempts upon her ( in the negation of which chiefly lyes that sexes security ) is the great argument of her virtuous gratitude and resolved loyalty to him ) but that which offends subjects , and makes them entertainers of fears and cross humours , is not ex legis defectu ] want of a right rule to walk by , ( for that the law of nature and nations prescribes to every man , who more or less has the principles of it legible in his minde ) but the grievance is , in the distorted will and the loose affections of the governour , who , regardless of the main ends of government , justice , and national prosperity , launches out into the ocean of pleasure , and in the endearings of them ( not onely drenched but drowned ) looses all thoughts of that distributive regality , which from the intentness of a real greatness and virtuous care of and conscience to subjects , ought to be manifested ; which seneca found true in nero , and thence was bold to tell the world , that tyrants and kings differ not so much in their outward appearance of state , as in their direction of their power to a proper end , tyrants being truculent as delighting such to be , but kings as being forced to the severity they practice by necessity , and as that remedy which they unpleasingly apply . for since kings are the ministers of god , and have credited to them the conservation of justice and virtue , which they are to propagate by rewards and punishments , and in the distribution of them , not to err into any arbitrary by-path , but to follow the commune praeceptum , which demosthenes calls , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and on that ground , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he sayes , it bindes all men ; to be remiss and cold in propagating that their divine interest , and to permit sovereign balm and prudent medicinality to run at waste , and to effect no purpose of its designment , but the contrary rather , is surely that which provokes god to give people up to their own frowardnesses , and to make them inundate the mounds and walls of religion , loyalty , and civil love ; and not to fear the power of him , whom they see weak by the absence of self-denyal , and by the facility of being victor'd by delightfull folly , which captivity being , very often ( through the deceit of mans heart and the temptations of satan ) the misfortune of mighty potentates , who stand on tiptoe of their unlimited greatness , the chancellour shews that by reason thereof the condition of politick princes is much more secure , and in the issue and last result of it , not inferiour to it in the point of absoluteness , since by the bonds of love and the convictions of the paternal merit , it challenges as of right , and receives with all readiness of good will , the firm and flourishing fidelity and benevolence of subjects , by which great seal and affection which they bear to them , as the words of the statute are , the subjects do so meditate on and provide for their princes security , in whom consisteth all the happiness and comfort of the whole state and subjects of the realm , that they are so far from disputing , that they freely concurr with them in all their just and regal postulations , and set themselves with all carefull study and zeal , to consider , foresee , and provide for them , as professing , by the neglecting and passing over whereof with winking eyes , there might happen to grow the subversion and ruine of the quiet and most happy state and present government of this realm , which god defend , so are the words of the statute aforesaid , which i thus mention to fortifie the chancellour's position , that politick princes become more absolute in conquering their people by kindeness , and convincing them of the benefit their care and vigilancy over them returns upon them , then any severe and rigid administrations in the behalf of absolutely regal potentates arrives at , which is the summ of what saint thomas in his book of the government of princes wrote , and what our text from it collects , and what in the notes on the and . chapters i have endeavoured to illustrate , and which here i have been no more copious in then i hope will be profitable to the reader , whom it may direct to praise god for the blessings we in this nation enjoy , while we are governed by lawes , just , holy , usefull , and proper to us , and by a prince the guardian of them , whose administration is not regulated by wrath , and written in the terrour of subjects , but who admonishing his subjects to beware the penalties and dangers of his lawes , covets rather their amendment by gentle and mercifull means , then with severe execution of his lawes to be enriched by their evil deeds and offences , they are the words of the preamble to the statute , eliz. c. . the consideration whereof should be monitory to us to be dutifull , and to account nothing so much our honour , as to value the mercy we above others are made happy by , and to beleaguer god with earnest prayers , that he would ever preserve amongst us , the unity of the spirit in the bond of peace , without which neither sovereign nor subject can be solidly happy ; concerning which * iacobus tapia has excellently discoursed , and in all reason and experience it is so found to be true . and hereupon , as the chancellour concludes this chapter with st. thomas whom he began with , wishing that omnia regna politicè regerentur , ] so shall i end my comments on it , with the advice of an oracle among kings and men , our late gracious king charles the father , nothing can be more happy for all ( both king and people ) then in fair , grave , and honourable wayes to contribute their counsels in common enacting all things by publick consent without tyranny or tumults , which is , politicè regere & regi in st. thomas his words , and to which as oracular , and that which is the prayer of every good englishman , ought to be ( in our holy mother the church of england's words ) subjoyned , we beseech thee to hear us good lord. chap. xxxviii . tunc princeps . parce obsecro cancellarie , &c. this chapter is as other formerly have been , but accommodative to the personation of the prince , and his proportionable demeanour in the dialogue . all that the chapter affords is but doctrinal to tender and infant-greatness to be sequacious of grave and learned age , which this our chancellour having in that sense that age is truliest honourable in , attained to , and so abundantly and with matchless sincerity evidencing to him as that flourishing branch , which though rejected and forsaken of men , and thereby made a man of sorrows and acquainted with grief ; yet in the breathings and longings of his loyalty , he , he ( our chancellour who loved much , and therefore ought to have much forgiven him ) hoped and expected ( though god knowes it was otherwise ) would come to pass . i say the chancellour in all his pourtraying a most intense loyalty to his prince , whose interest ( as he conceived it ) he was a sufferer for , and after was with it civilly interred ) i say this long robed heroick thus approving himself , is deservedly courted with a parce obsecro cancellarie ] and intreated to a further information to his profit , which he professing the particulars of it were , as in these words , mihi namque perutilia sunt ] the chancellour is engaged to persue his own promise in the method of the personated princes recitall , primo ut aliquos alios casus , &c. ] in producing some such cases as the two lawes do disagree in , that in consideration of them he may the clearer judge which of the two he does most incline to study and approve as best for the government of the kingdom and people of england : this is the sum of this chapter . chap. xxxix . cancellarius . quosdam casus alios in quibus dissentiunt leges predictae , ut petis princeps , detegere conabor . here the chancellour answers the personated prince his expectation , which being to be from him satisfied wherein the lawes agree and disagree , and the reason of both will better clear up to his understanding the way of his choice . this then being the scope of this chapter , as it is appendicious to those other foregoing instances * of their dissonancy ; though the chancellour writes with much judgment , yet presses he not his authority further then the reason of his arguments seizing on his judgment , swayes his affection and practice ; for so the modest words of our text are , sed tamen quae legum earum praestantior sit in judiciis suis , non meo , sed arbitratui tuo relinquam . ] this for the introduction . the words of the chapter most material follow . prolem ante matrimonium natam , ita ut post legitimam , lex civilis & succedere facit in haereditate parentum , sed prole● quam matrimonium non parit succedere non sinit lex anglorum . ] prolem . ] this is a word of largeness , importing the issue of any creature or thing used by orators and poets for that which the greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thus ovid mentions , volucrum proles , and virgil , olivae proles , faelix urbs prole virum , proles ignara parentum , tully has also ferrea proles , and * columella writing of the goat , calls his young generosa proles ; in this diminutive sense of proles , budaeus uses proletarius sermo for plebeius , such as is nulla animi dote ; and the poor in rome were from this called proletarii , whence perhaps our word to prole up and down , as much as to shark , the act of necessity . to those that are the refuse and ignoblest of families , the law shews no countenance , in honour to marriage gods institution , and that which he has in lay'd with honour amongst all nations , so saith st. paul , and to confirm this which is so clear , were to question the universal embracement of it ; now matrimony being the chast limitation of the loves of one man and one woman each to other at one time , the chancellours phrase of proles , and not natus , nor filius quod omnium constantissimus sit amor parentum in filios , saith sipontinus , nor liberi which extended not onely to the legitimate children of the body , but to the nepotes & pronepotes , to which * glanvil assents , when he calls these haeredes ; i say the text naming those he writes of , not by these names of credit , but by that of proles which is a common title of the proceed of any creature , does thence insinuate that illegitimate children are as no children , being abscinded from the discents of the families of those that got them , and that because they are ante matrimonium natae . ] for though in the court of heaven they may be legitimate , their parents consenting conjugally each to other before they coupled , and continuing loyal each to other after ; yet in foro seculi the proles ante matrimonium natae , are proles ignara parentum , incerta , and so have no right jure divino aut naturali , as covarruvias notably determines notwithstanding the declaration of pope alexander , which sayes , tanta est enim vis sacramenti , ut qui antea sunt geniti post contractum matrimonium-habeantur legitimi . now proles ante matrimonium natae they are , who are born before the parents of them are lawfully married , that is not married as the pope by his canons and dispensations indulges , for that sometimes has made that lawfull which god's law has made unlawfull , and on the contrary , as the statute of h. . c. , declares ; but according to the appointment of the law of england , solemnized in the face of the church , and by lawfull authority , the truth and loyalty of which the bishop onely must certifie , which these natae ante matrimonium proles not being capable to be , they by our law come to be infamous , ita ut post legitimaem lex civilis & succedere facit in haereditate parentum . ] mr. selden quotes iustinian for this , though the canon rather then the civil law makes them inheritable , if their parents marry after , and there be no other issue born after marriage , this , (a) covarruvias sayes , is favor iure pontificio matrimonio impensus . i confess the civil law has , a way of legitimation of them , as our law has by act of parliament . sed prolem , quam matrimonium non parit , succedere non finit lex anglorum . so great a reverence has the common and statute-law to marriage , that though natus intra matrimonium shall be the childe of the marriage , the father by marriage being presumed apt for generation , as natus ultra mare within the e. . & e. . c. . shall be the kings subject though it be born extra limites , if infra ligtantiam regis angliae , yet natus extra , that is , ante matrimonium shall be a bastard ; for that the law repudiates all vage lust , the affront of marriage , and dishonours the proceed of it . i know pope alex. . in h. . made a decree to legitimate ante-nate children upon subsequent marriage between their parents ; but this was never allowed here for law , but the contrary asserted , so glanvil , who wrote in henry the second's time , sayes , orta est quaestio , si quis , antequam pater matrem suam desponsaverat , fuerit genitus vel natus , utrum filius talis sit legitimus haeres cum postea matrem suam desponsaverit . et quidem licet secundum canones & leges romanas talis filius sit legitimus haeres , tamen secundum jus & consuetudinem regni , nullo modo tanquam haeres in haereditate sustinetur , vel haereditatem de jure regni petere potest . so such , bracton also , who wrote in third's time , sayes are not inheritable , and that per consuetudinem regni ; for though he would write favourably of the ecclesiastical constitution , which all the bishops of england did in the parliament of h . promote , yet all the earls and barons with one voice answered , that they would not change the lawes of the realm which hitherto have been used and approved ; which bracton i say considering , though he sayes the natural sons of men ad omnes actus legitimos idonei reputantur , yet restrains it non nisi ad ea quae pertinent ad sacerdotium : for as to secular things they are not lawfull , which sir edward cook takes notice of in the report in lechford's case ; and (a) doctor zouch shews this to be the custom of normandy , and tholossanus makes the law of all france , as others do generally of all the world ; for even amongst the athenians if a man had a base son he had some portion allowed him , but the inheritance went unto his lawfull daughter , so sayes (b) suidas : and so strictly did our law ever adhere to it , that in times of popery , when the canons of the pope were most adhered to , yet the bishops in case of general bastardy , when the king wrote to them to certifie who was lawfull heir to any lands or other inheritance , ought to certifie according to the law and custome of england , and not according to the roman canons and constitutions , which were contrary to the law and custome of england , and this was the reason they loving the canons and fearing the pope who laded them with such chain-shot , desired in the parliament of h. . to be relieved , but in vain alas ; for the nation would not stirr from adhering to marriage , and the issue lawfull of it ; and that bastardy is an exception against inheriting , fleta not onely makes good , but all later authorities . and to help this in a particular case , which otherwise would have ended in disherison , was the statute of h. . c. . made , for bastards begotten and born out of lawfull matrimony ( an offence against god's and man's law ) as the words of the eliz. c. . are , has ever been not onely disfavoured by the laity in parliaments , but by our clergy in their * convocations ; for although the pope gave liberty , and some of the clergy of old took liberty to enjoy concubines , yet the church in her councils decryed and execrated it as abominable , and made the issue of it un-inheritable , non legitimam proclamans , saith our text. civilistae in casu boc legem suam extollunt , qui incitamentum cam esse dicunt , quo matrimonii sacramento cesset peccatum . here the text terms those learned gentlemen of the gown , which in other places it names iuristae , advocati , iurisperiti by civilistae , a name of art and dignity given to those that are graduates in the profound study of the lawes , the termination sta referring to the person , as i-us does to the office , thus sacrista , exorcista , lanista , iurista , canonista , all appropriated to men so and so qualified ; for these are not oratours or historians words , so much as terms of art and private invention . that which the text sayes of these , is , that they do extoll their law for this indulgence , that is , they being professours in both lawes , the canon as well as civil , do as much as in them is , keep up the credit of their lawes , by evidencing the reason or equity of them . and though this dispensative enaction be the popes , and so directly their canon-lawes rule , yet inasmuch as the rule is with them in matrimoniis judicandis , & in his qua aed ea pertinent , praeponimus sanctiones pontificias civilibus , our chancellour sayes these civilians , for that is the title of most eminency , do legem eorum extollere , that is , they judge it prudent and just , and such publickly and with confidence avow it ; thus extollere armatum in sublime is by hertius used , extollere caput & se erigere , and ad coelum landibus aliquem extollere by tully , extollere verbis pr●clara ingenia by salust , extollere indignationem by pliny , extollere in majus by livy : all which shew , that our text by these words legem eorum extollunt ] intends a magnification of their lawes , which is what the oratour intends by extollere se gloriando & praedicatione , as tully's words are . this i note , because it is not a vain jactancy that our text mentions these civilians guilty of , for that had been not worthy them but to be passed over by his ingenuity , no such extolling is this , but it 's such an extolling as is grounded upon reason and conscience , quia incitamentum eam esse dicunt , quo matrimonii sacramento cesset peccatum ] that is , supposing the first act be so strong a fetter to continued lubricity , which is the sin of incontinency , marriage limiting & legitimating the vageness and obliquity thereof , turns the sinfull passion into a sinless virtue , such fruitions in the latitude and effects of them becoming , by a not to be blushed at transmutation , noble and creditable , which before such marriages were culpable and infamous ; yea , notwithstanding all the precedent irrectitude , charity may perswade to interpret a dispositive marriage in their mindes , who ( in their censured familiarity ) were thus cordial each to other : yea and the marriage in being , be but the design their loves tended to , though the completion thereof had for some time and reasons interruption , so are the words , prasumendum quoque dicunt esse , tales fuisse contrahentium animos , quales esse demonstrat subseq●ens sacramentum . ] and therefore the church of rome counting marriage a (a) holy thing ( for that 's as much as sacramentum here will amount to ) makes the issue of it legitimate , which act of legitimation is but yet the favour of a particular church , which though some councils have declared to be sacrosancta & apostolica ecclesia quae non ab apostolis sed ab ipso servatore dominoque nostro primatum obtinuit , yet has onely power over its members and within its limits to establish what it pleases in matters of ritual and circumstantial nature , but in the doctrinals and mains of religion , the scripture not men ought to be judge : and therefore if the church be taken here for the roman church , pro prasidentibus ecclesiae , pro ecclesiasticis viris , & pro auctoritate papa virtualis ecclesiae , as the romanists generally hold ; then that church non habens maculam neque rugas neque aliquid hujusmodi , as (a) baronius his words are , will not establish any thing which is not according to scripture and morality , and so is not the ecclesia here , that does habere natos ex subsequenti matrimonio for legitimate . for then i suppose the church , which they say , as headed by the pope , cannot err , must be granted to err ; and that in allowing that for ends of policy and gain , which has an apparent turpitude in it , and from which there is no absolution , but by god's mercy by an humble penitence , which subsequent marriage does not necessarily nor always imply ; so that the ecclesia foetus hujusmodi habet pro legitimis ] must onely be meant of a part of the church-catholick , that is , the roman church , which though vitiated in many things , both practices and opinions , yet having the integrals , i dare not deny a member of the catholick church : and i understand the chancellour onely to intend the roman church here as it does foetus hujusmodi habere pro legitimis ; for the catholick church does not so judge , nor as i think has ever so declared . ad quae sic respondent legis angliae periti . primo dicunt , quod peccatum primi concubitus in casu proposito , non purgatur per subsequens matrimonium , licet ejus merito delinquentium quodam modo minuatur poena . this has several parts of its answer worthy consideration , first , that the primus concubitus was a sin , because a violation of chastity and an act of lust and irregular concupiscence ; for it being not an observance of the institution of god , nor to the end of prolification , ( which though it happeneth unexpectedly to be , yet was not the end of the coition , but meerly the effect of brutish sensuality , which titillated the concupiscence to acts of inordinacy , and took the object it first lusted as the creature of its pleasure , not the beloved and solitary object of its adhesion , ) there being no end of god in the institution of marriage designedly promoted thereby , no blessing of god on such conjunction can be expected there-from , though the patience of god forbear punishment of such a sin against his law , the breach whereof this act was , and does not in the very act destroy the sinner ; yet is the sin entered on record in heaven and without repentance is damnable : and therefore the subsequens matrimonium does not purge that , for then the remedy must antidate it self and work before it had a being , then it must be either in its own nature , or in god's acceptance of equivalence with guiltlesseness , for else how can it purge from the guilt of sin committed , not that then can it do , but all that it can do is to mitigate scandal and to give restitution in point of fame , as thereby it imports to the world , that there was an inclination and addiction of them to a marriage completion , and that they were soularily marryed , and so the subsequent marriage may be purgatio , that is , declaratio intentionis conjugalis , and this may purgare à tanto though not à toto , or as the text is , poenam delicti minuere , ] though not tollere , which is all one with that of our lord , not beaten with many stripes but with few stripes , by which appears that though the church of god and the lawes of men may allow the issue of reputed marriage to be lawfull , though there were a pre-marriage , provided that the party that was free when married , did not know of the former marriage , quia crimen non contrahitur nisi volunt as nocendi intercedit , & voluntas & propositum distinguunt maleficium , as the rule of (b) law is , and the children and one parent ought not to suffer in this case for the other parents sin . though i say there be favour shewed the issues of these marriages , yet generally the lawes of god and men abhorr them , and allow no respect unto but thunder out comminations against them , and when satisfactions are given for the very specifick sin " n = " yet the stain of it remains " n = " and the trouble of it in the conscience of the sinner while he lives to remember it . and therefore though our text saying " n = " ecclesia tales habet pro legitimis " n = " seems to favour the church of rome's primacy " n = " as if whatever she " n = " for politick ends " n = " publishes her pleasure in " n = " must be the doctrine and judgement of the church ; yet so long as the scriptures give no allowance thereto " n = " nor the catholick church " n = " ( of which the roman is but a part , and god knows as now 't is gallimaufry'd and made a cabinet of civil interest and state-policy as well as of church-doctrine and church-discipline , but an infirm and vitiated part ) the noise of the church makes no great musick in catholick ears ; for all the dispensations and allowances that are given to immoralities and turpitudes do but prostitute the credit of those that take money for them , and render them deservedly censured for pilati rather then praelati , for carnifices not pontifices : god will never approve in heaven actions evilly done on earth , upon the suggestion of good intents and great good aiméd at . i like not the allowance of stewes to keep chaste women from being tempted , nor of concubines to help on the singleness of priests , nor of subsequent marriage to legitimate issue , though the last be most tolerable of the three . dicunt etiam quod peccati illius conscii , tanto minus inde poenitent , quo leges transgressoribus illis favere desiderant . this is a sure consequence , as impenitency arises from obcaecation and sin not discovered : so impudence and confirmation in sin , from sin by law not censured or disallowed ; for the rule being , quod non vetat lex , id mandat , if there be not a notorious manifest of the lawes displeasure , the corruption of mortal nature will thence derive an encouragement to commit and justifie it . and therefore the lawes of our nation having the lawes of god for their original and exemplar , do according to it justifie themselves to claim obedience from men , because they enjoyn those moral and just acts that the law of god does , which is , that every man shall enjoy his own wife and every woman her own husband , because whore-mongers and adulterers god will judge ; and that whatsoever is beside or against the honour and loyalty of marriage , is a breach of the divine law , and a trespass upon the civil magistrate the keeper of both tables , by which these lawes retain their majesty and worth , cum lex sit sanctio sancta , jubeus honesta & prohibens contraria , ] as the text saith : while they do by no connivance at the sin make the sin either little or none at all , and so tacitely invite to the commission of it . and this our chancellour gives as the reason of the law against legitimation upon subsequent marriage , because if this should be allowed , all vageness of fruition would be practised , and unless issue come which they neither expect nor welcome who are lustfully acted , never subsequent marriage would be . therefore the law to honour and establish marriage , necessitates persons to be in that state , if they would have their issue descendable to estate or bloud . nec vallari potest lex ist a per hoc , quod ecclesia foetus hujus modi pro legitimis habet . pia namque mater illa , in quamplurimis dispensat , quae fieri ipsa non concedit . the sense of this clause is , that there is no argument from the dispensation and permission of a thing to the legitimation of it , because many things are suffered upon reason of state , &c. to gratifie emergent necessity which are not otherwise tolerable . moses has gave the jews for the hardness of their hearts a bill of divorce , which from the beginning was not so . polygamy was not reproached in the patriarchs , because the world was to be peopled ; yet god made one man for one woman , and why ? because he sought a godly seed . this therefore being our chancellour's argument , he excludes all subterfuge under the churches introduction of allowance , nee vallari potest lex ista ] as much as the law has no trench or strength about it to shelter the inference from the church's permission to her justification , ( for so vallare is in authours understood , so pliny mentions munire & vallare contra feras , and vallare sepimento is in tully , monitis vallare aliquem in silius , and thereupon though he proceeds to own a power and prerogative in greatness to do ( in things not mala per se ) as it shall see fit to the carrying on of order and the complyance with the necessity of humane affairs , which otherwise it cannot accommodate , yet does he deny that on this ground the conclusion of the churches approbation of children ex matrimonio subsequente followeth . pia namque mater ] the church he calls a mother , because she bears believers in her womb , unto birth ; and being born nourishes and suckles them to further growth by the sincere milk of the word professed and teached in her , in which relations though the holy text call onely ierusalem above ( the church triumphant ) the mother of us all ; yet it terms the church on earth the body of christ , and the spouse of christ , and these import the office and affection of a mother to believers and professours the sons and children of her , which she doth evidence to them more eminently then other mothers can do ; for though they being seduced , do unnaturally leave their children to the wide world : yet the church like a ●ious mother , as she keeps herself close to truth , so doth she keep her children close to her in the truth declared by her and defended from her , for their support . and thus she shews her self a pious mother , who more regards the unity and edification of her children , then her own lustre and satisfaction , which is the cause that she as pious as she is , does that sometimes ex plenitudine affectus , which she approves not in examine stricti iudicii . this the text calls dispensare ] a relaxation and exemption from the ordinary rule , which though the church of god in all times hath in things indifferent used , as st. paul bore with those of the circumcision . even while he preached and pressed the circumcision , not of the flesh and the letter , but of the spirit , and the church has since done after the example of christ , who though he were the end of the law , yet was present at and affirmed the paedagogy of the iews while it was the way of the national worship : yet in things of an absolute evil nature , the church never arrogated a power of dispensation ; for the church being but the body of christ , cannot do any thing valid against her head , as the legitimation of what he has damned , must and will be . and of this nature i apprehend dispensations in cases of legitimation of children upon subsequent marriage must be ; for if it were in its own nature a sin to couple with a woman , which is not ours by marriage , then to marry her cannot extinguish the sin , nor admit into an unstained state the proceed of it , quod enim ab initio temporis non valet , progressu temporis non convaelescit ; and hence supposing the church of rome allowing the pope dispensative power , not onely in ordinary things ( his prerogative herein not infringing the prerogative of christ , who onely can forgive sins ) but in higher matters , such as are the licencing of marriage within prohibited degrees , taking and breaking oaths , pluralities of benefices , incontinence of living , &c. in these cases , if the pope shall honestè accipere quae inhonestè petuntur , give way to such things to advance his peace , or enrich his coffers , which he seems to make by arguments of subtlety to be propriè & quarto modo ( as i may so say ) for the church's edification , because to maintain his splendour , in which he would make the world believe all the church's good and greatness consists . i say , if the pope shall do this as the viruall church , yet it is more an argument of his pride to usurp it and of his church's cowardize to suffer it , then any argument that they approve dogmatically of it , quia quaedam tolerantur quae non approbantur , of which infinite instances might be produced , so some things are permitted which are not commanded in our own laws . vsury the stat. h . c. calls , a thing unlawfull , as it was by the saxon laws , vtterly prohibited by the word of god as a vice most-odious and detestable , as the words of the & e . c. . are , though the eliz. . repeal the & e. . and re-invigorate the h. . yet does it onely allow vsury at . l. per cent. as the iacob . c. . does at . l. per cent. for a year to be unpenally taken ; all vsury forbidden by the word of god it expressly calls sin and detestable , but the vsury it permits and dispenses with ( not allowing the practice of vsury in the point of conscience and religion , so are the words of the iacob . c. . confirmed by car. . ) is as to any advantage the civil magistrate should take against the takers of it ; these statutes taking away the old vsury , which before the statute of merton was practiced here by the iews , and after till henry the seventh's time , when by the statute of c. . it was declared , for as much as importable damages , loss , and impoverishing of this realm is had by damnable bargains grounded in vsury , coloured by the name of new cheivance , contrary to the law of natural iustice , to the common hurt of this land , and to the great displeasure of god. i say , the law though ( it taking away these ) did permit moderate interest to be taken ; yet did but what the text terms dispensare with the taking it , as not looking on it as a matter of conscience , but as a great expedient for trade and correspondence between man and man : and thus vsury at this day standing , the law may be said dispensare rather then constituere vsuram . and so in other cases instances might be given , which confirms the chancellour's position , that the church in admitting the issue of such after-marriages for lawfull , does not so much doctrinally conlude , as piously dispense with what thus happens upon presumption of subsequent penance in them , and future satisfaction to be made by them for former scandal , per matrimonium subsequens docetur ecclesia contrahentes poenitere de praeterito & de futuro per matrimonium se velle cohibere ] and then as the text sayes , if saint paul did fraena virginitatis laxare quod consulere noluit ] if he that preferred virginity above marriage , yet did indulge marriage to christians in persecution rather then burning , absit ut mater tanta ? ] our chancellour puts a god forbid upon the denyal of the church to shew lenity to her children , when they , fallen into sin by aforesaid enjoyments , desire to return from their wandrings by subsequent marriage , and this is that which he produces in favour of the church , quae foetus hujusmodi habet pro legitimis , that is , if the woman , mother of them , be before in concubinatu , in familia retenta , so that there be an undoubted affection as in a wife , ( saith the learned (a) bachelour , who makes many doctours therein to agree with him ) in this sense the church takes prolem ante matrimonium natam pro legitimis . sed longè alium in hoc casu lex angliae effectum-operatur , dum ipsa non concitat ad peccatum , neque peccantes fovet : sed terret eos , & ne peccent , minatur poenas . this he produces to purge the law of england from cruelty and unmercifulness in this exclusion ; for marriage being the institution of god , and lust a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not onely a pugnation with god but with nature , which intentionally by it in her noblest operation is defeated ; the law of england to prevent or correct this sin committed , doth incapacitate the issue of it inheriting , and puts a deserved blemish upon them . and this it does to declare its abhorrence of vage lust and inordinate copulation , the sin much of the nation , and that which the law would be interpreted in not punishing to encourage , and in not abhorring to cherish . therefore is the law constrained minare poenas , not castration and exoculation , which are since christianity antiquated , but illegitimation of the issue , and a disherizing of them , as no cyons's from the root and growth of the family ; and if children be gotten between two , an offence against god's law and man's law , the words of the statute of eliz. c. . they shall be provided for by the reputed father and mother , so is the statutes direction confirmed by car. c. . yet if any bastard-childe so gotten and born shall be destroyed and made away , which some l●wd women do to avoid their shame and escape punishment , the statute of iacob . . makes it murther without clergy . this the law does to shew , as bracton sayes , that luxurious and incestuous persons are to god abominable ; and philo gives it for a reason why bastards are not to come into the congregation of god , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. because these , archers shooting at rovers direct their arrows to no one onely object , but being wilde and of random fancies , imagine not one , god the creatour and preserver of all things , but many causes and principles of things and creatures , and thence are execrable to god , because authours of all monstrous and prodigious tenents and actions , the effects of their vast wits and limitless passions , thus philo. and therefore since carnis illecebrae fomento non egent ; ] and that be the lawes never so strict there will dayly dishonour accrew to god by the infirmity of our nature , and the advantages satan takes by our discovery of our selves to tempt us , as the irritamenta lasciva , be importunate and incessant , ( never expiring menace of us while we are in the body ) so are our vigilancies and remedies to be suted thereto , and all little enough to keep under the body , which naturally tends to expend it self in generation rather then on any other way ; for every creature naturally desiring being and perpetuation in its kinde , embraces that which thereto tends , which because to generate it's like is the onely means to effect his desire , his actuation will thereto drive : and so man having the common notion of desire with the creature , intensly designs the conducement thereto , and is kept from it by no restraint but that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , virtue divinely restraining , or fear of punishment servilely deterring him , which the wisdom of god well-knowing , rivetted in humane nature such prudence and conservative principles , as do answer every requiry of nature's infirmity , and adjuvate every branch of the interest of god in the circumduction of things to the full point and consistence of his glory , for which he made the world and all creatures in it . et homo quum individuo perpetuari nequit , perpetuari naturaliter appetit in specie sua ; quta omne quod vivit , assimilari cupit causae primae , quae perpetua est & aeterna . this is here introduced to shew the reason of man's dotage on generation-enjoyments , 't is because the good of being ever he cannot obtain , ( his body being elementary , mixed , and so dissolvable ) his great drift is to contribute to the being of his kinde , though by it he pay the death and determination of his person ; for though the life of man be dear to him , skin for skin , that is , one part of his substance after another 'till all be exhaust , will a man give for his life : yet to be a benefactour to succession in prolification is that which preponderates life , and more natural and noble is it for man to carry on the succession of man by generation , then to enjoy individual life if it were possible to a perpetuation , because the one is but a solitary good , the other a diffusive and general one ; which abraham no mean artist in nature as well as in piety apprehending , complaints to god , that all he had , did him no good since he went childeless , as conceiving , he lived not at all to the purpose of nature who had not generative energy , or having it , expressed it not ; nor did he seem to himself favoured by the god of nature , whose natural endowment orderly expended brought no harvest to succession . now though i am apt to think there was some sensual instinct that impresses this desire and urges on this impetuosity of man ; yet do i not believe but that some ambition of a temporal eternity as pledge of assimilation to the first cause ( in a degree and apprehension of perpetuity , and as it were indeterminateness of being ) acts man to this : & god having furnished him with soulary powers to it , proportionates corporal organs to those offices of life and activity , vnde fit quod plus delectatur homo in sensu tactus , quo servatur species ejus , quam in sensu gustus . ] the senses of man are the deficient participations of intellect , say the scholes , because they distinguish of objects and things by some directive and discriminative property , which is like though not very intellectuality ; those senses that are here mentioned are the two keenest and most consequent of all , taste and touch , which though they he but one in the true nature of them ( touch comprehending taste as it is the sense of all the parts , whereas taste is but the touch of the tongue ) yet are distinguished in the order of senses ; and as no man can live without food and taste , so no man can generate this kinde without touch . therefore the a philosopher makes this inseparable to generation , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. men and all creatures that do generate have touch . and man , though he be answered nay exceeded in other senses by the creatures , who have them in transcendency above him ; yet in touch and taste he is lord of them all ; none have them in any degree comparable to him . this is his peculiarity and donative of prerogative , wherein he is more excellent then all the works of god's hand ; for this is that without which no other sense were acceptable to , or illustrious in him : for in these his soul eminently appearing , does accommodate them with all the energies and subsidies of it , which is the sense of the philosopher , lib. . de anima . c. . and therefore in the third book and twelfth chapter , he calls the touches of the tongue and of all the body , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the necessary senses of living creatures ; which touch of man being so excellent , ( and as it is more quick in some men then others , so argues more excellent souls and prudent mindes ) is the reason why above the ordinary proportion of men , wise and brave men are most addicted to venery ; not onely upon the account that men generally are , which the philosopher mentions when he sayes , there is no time exclusive of their courtesie as there is in other creatures : but as they are apt to intend an object summarily and to an extasie of degree , and on that object so enamouring them and enamoured by them to expend themselves to a prodigious , luxuriant and boundless proportion , which in some has been not onely to the heights of constitution and civility , but even to an insaniency , or what 's further , exanimation ; thus dyed cornelius gallus and quintus haterius , two roman knights , and pontanus reports one beltr and ferrerias of barcellona so to have dyed , and multitudes of others . but enough of this , that onely which i drive at is to commend the reason of the text , that as the sense of taste keeps man by the help of meat and drink to live this bodily life , which is vivere in individuo , ] so the sense of touch enables him to immortalize his frail body , by generating his like , which is vivere in specie : and by the improvement of this , plus delectatur homo in sensu tactus , quo servatur species ejus , quam in sensu gustus , quo conservatur individuum . quare noe ulciscens in ●elium qui ejus pudenda revelavit , nepoti suo , filio delinquentis maledixit , ut inde plus cruciaretur reus quam proprio possit incommodo . this quotation is out of gen. ix . . where cham the second son of noah is cursed for his unnaturalness , in that , when his father was denuded , he did not modestly cover him as his brothers did , but rudely beheld him with a bold and braving glory over his infirmity , which therefore god curses him for , and to shew his abhorrence of such a childeless unnaturalness curses his posterity ; for canaan his son for this fact is condemned to be a servant of servants , that is , the meanest of servants , not onely of a servile condition , but more base then servility to men can be thought to be , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , servus perpetuus qui nunquam manumittitur ab co cui servit , as drusius renders it : though therefore cham was the immediate sinner , yet god to shew his judgement on his sin , punished his son canaan , inasmuch as canaan signifying commotion , was stirred up by cham , which imports heat ; for though the sin were in cham's heart lurking , yet so long as it appeared not in villany of action god declared not the curse against it , but when it did , punished it in his posterity who are to this day , a seed of evil-doers . quare lex quae vindicat in progeniem delinquentis , penalius prohibet peccatum , quam quae solum delinquentem flagellat . this is a good consectary , and justifies the law of england in that it follows the method of god in punishing children for parents transgressions ; for though the punishment of hell-fire be annexed to the person that sins , according to that , the soul that sinneth it shall dye , and the father shall not bear the iniquity of the son nor the son of the father , but every one shall answer to god for their own deeds and not for anothers ; yet in external punishment , as the good of parents often reaches evil children their posterity , so the evil deeds of parents often reaches good children their of-spring , ( and that for the greater solemnity and notoriety of god's sovereignty both in rewards and punishments : ) answerable to which , as god is known by the iudgements he executeth when the wicked are taken in their own snare ; so is the power of god in the distribution of earthly magistrates to be proportioned as may most encourage to good and deterr from evil . which because those lawes do most effectually , that reward the childe for the father's virtue , and punish the childe for the father's sin , as in the case of bastardy the law of england doth . the chancellour's position that the law of england is lex casta , ] and that quia facit castos by its admonition and discovery of the excellencies of continency ; or if it works not that effect , yet it does fortius , firmiús qué repellere peccatum , by declaring the issue of incontinence illegitimates , then do those lawes that do , ex matrimonio subsequente , allow them . this being the chancellou'rs conclusion , he therewith ends and so do i the notes on this chapter . chap. xl. praeterea leges civiles dicunt filium naturalem tuum , esse filium populi , de quo metricus quidam sic ait . cui pater est populus , pater est sibi nullus & omnis . to the honour of the civil lawes be it written , that they do all imaginable honour to marriage and all dishonour to the contrary ; the rule therefore of the law is , that the marriage proves the son , and that the son that will have a father and inherit from him , must be the son , of his marriage , thus celsus peremptorily concludes , and vlpian sayes it is the law of nature , that he that is born out of lawfu●● marriage , unless there be a particular law to the contrary , has no relation to his father that begot him , but must relye on his mother that bore him : to this agrees tholossanus , who calls these natural sons , spurii , his words are , cum naturales tantum procul à patris successione arceantur omni illicito coitu reprobato jure divino , & naturales etiam ideo à feudo rejiciuntur paterno , etiam si fuerint legitimati rescripto principis , and a alciat allows onely legitimate sons to be of their father's family ; yea , so doth the civil law suppress these as to any thing of splendour , that though they come from the body of a man , yet his nephews and remoter kindred shall inherit and not they ; for they being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are therefore left at large , and by the law unprovided for as strangers are : answerable hereunto is littleton's rule , a bastard is quasi nullius filius , and therefore can lay claim to no bloud or fortune by descent , but if any he hath it must be by deed or will , by which they often ( and god forbid it should be otherwise ) have estates given them : for if any man knows a person to be his childe , though sinfully begotten , ( the more is his shame and ought to be his sorrow ) not for him to give it his estate , if no lawfull children he have , or something of it if such lawfull children he have , is a very great unnaturalness , and that which discovers an horrible ingratitude to nature , and a sensuality in himself which he ought to recompense to the childe which was passive in the act of his generation , and yet is thereby rendred infamous ; which one , as i have heard of note , in the reign of king iames the wise , considering , and having a great affection to his natural son , settled his estate upon him , his kindred endeavouring to make it void by a bill of equity , had as much right done to them therein as the eloquence of sir francis bacon then a pleader could afford them ; upon the close of sir francis his elaborate impeachment of the settlement , which he said was done to make and favour a spurious brood , the then judge of the court of equity leaning upon his staff , and well attending the strength of his arguments and the vehemence of his expression , notwithstanding them , decreed for the settlement , saying , terram dedit filiis hominum , wherein he did well ( if the case was onely thus as i have heard it reported . ) for reasonable it is , that he that has the power of an estate should settle it as he pleases , and to those he best judges to deserve , which certainly those must by any reasonable man be judged to be who are his children , though not legitimate , he having none such , yet natural , and such he having . which i write not in the least degree to apologize for looseness which i hate , or to dishonour marriage by the benefit of which ( i bless god ) i have been happy in a serene life and an hopefull issue ; but to dissallow that execrable oblivion and sordid folly , which too much swayes with wanton and wilde persons , who first sin against god in begetting children in vage lust , and then sin against their own bodies , in disowning such support of the fruit of them , as they are able in point of estate to allow . but of this enough . cui pater est populus , pater est sibi nullus & omnis . cui pater est populus , non habet ipse patrem . this is mentioned as the saying of a certain metrician , but whom i know not , nor doth sir edward cook , who yet recites it in his commentary on littleton , mention the authour of it , possibly 't is some obscure monkish distich , whose authority being of urgent weight , the authors name may remain a secret without loss to any reader ; the sense of it is but the same with what in other words is fore-cited , and therefore i shall mention it onely as a pass to that absurdity which the chancellour sayes will follow upon legitimation of issue upon subsequent marriage , to wit , that when as a natural childe he had no father at his birth , thereby he after gets a father and so becomes a lawfull childe ; which in reason no children being possible to get without aid of that gloss , which is diametrally contrary to our common law rule , quod ab initio non valet , ex post facto convalescit , which though it be a good gloss to that of vlpian's in the case of a senatour , ad legem iuliam & papiam there treated on , and a libertine may by the prince's indulgence become just a ●xor ; yet in case of issue , ex post facto legitimated , is very hard to yield : nay certainly since the text sayes , non novit natura , how a man can be father after birth that was not father at the birth of a childe . it may be added , nec admittere debet iustitia , how from a corrupted fountain of lewd fruition the pure streams of legitimate children should flow . maxime infra regnum angliáe , ubi filius senior solus succedit in hereditate paterna . as marriage is defined by philoxenus to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the cohabitation of man and woman in all conjugal dutyes , so the fruits of it are by the law of conjugation to inherit the possessions of the so marryed couples : and that in england , not as they are equally allyed to , and descended from their genitors by equal proportions , but as all the glory and sovereignty of descent is fix'd on the eldest son of the family , who is the chief in bloud , and also in inheritance above his brethren . this the ius commune of england allowes , and though particular customs in mannors rule descents otherwise , as in gavel-kind and burrough-english tenures , yet the lex terrae is so , that solus senior succedit haereditate paterna . ] and this seems to come up to the appointment of god and the dictate of nature , whereby the eldest being the head of the family , as every sheaf did homage to his sheaf , so did there such a majesty reside in him , that he being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 did overtop others and took them under his umbrage to defend them from all inconvenience , and to be a kind of divine oracle to them all . thus reuben is said by iacob to be his first born , my might and the beginning of my strength , the excellency of dignity and the excellency of power . now this the hebrews write to consist in that the government and authority over his brethren should be his as their common father , and that they should stand before him and give reverence to him as to their father ; and drusius adds that by virtue of primogeniture he should have two portions of all his fathers estate to any of the rest : thus primogeniture was accommodated amongst the jews ; with us in england 't is so ordered that wherein the elder brothers reverence is diminished , his estate is advantaged , the younger brothers are not bound to be so submiss to their elder , nor are they often so ; but the elder brother has the inheritance , and this tyes the younger brothers to their respect for fear , if not for love . all the while spurious issues are ( as to descents ) out of doors . for as the partus ausillarum & foetus pecudum , are by tryphonius coupled together as equally disregarded by the law , so in our law , filius ex stupro cannot participare cum filio ex legitimo thoro ] that is , the child of adultery or unlawfully coition ( for the julian law uses them both promiscuously ) cannot pertake the inheritance with the childe of lawfull marriage , because the law looks on issue only lawfully begotten , which none being but those born in wedlock the descent of estates is onely upon them by the law of england . nam sanctus augustinus sic scribit , abraham omnem censum suum dedit isaac silio suo , filiis autem concubinarum dedit dationes , ex quo videtur innui quod spuriis non debetur haereditas , sed villus necessitas . here is an instance in confirmation of what the law of england does in the case of lawfull issue , and what the men of england ought to do in the settlement of their estates amongst their children ; and this is out of gen. . . where abraham a most holy man is storyed to have by the permission of his wife ( a beautyfull but as yet a barren woman ) a concubine named hagar , by whom he had a son , begot and brought up in the house , and to whom he gave love and portions as a father to his children , but not the inheritance ; for when sarah's isaac was born , then the concubine and her brat was to be gone , cast out this bond-woman and her son ( said she ) for the son of the bond-woman shall not inherit with my son , even with isaac , which words of vehemence sarah spake as the challenge of that right which was due to marriage , and the son of the wife by the lawes of nature ; for so the greek oratour sets out the right of wives above concubines or vage women of pleasure , which men use as , and when they will ; and their lust satisfied , throw them off as debauched vermint : but wives men have lawfull and inheriting children by and make them ladies of their lives and families . and musonius , after he had made a very eloquent and just encomium of marriage as no impediment to philosophy , shewing that pythagoras , crates , and others were furthered in their studies thereby , concludes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that marriage must be the most excellent and worthy state of life , because the gods are particular tutelars and fautors of it , and do special honour and respect to it . yea hierocles , when he has written notably of marriage , concludes thus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. neither can cities be without families , nor families without marriage , for that is no perfect family but maimed which is not such by marriage . and hereupon concubines and use of women besides wives , though it has been of old tolerated to some persons and in certain cases , yet it was non ad explendam libidinem , sed ad generandam prolem ; and it did not make a man exsultans sed obediens conjugi , as the father observes of abraham , whom though it very sorely grieved to have ismael thrust forth and disowned , yet it irritated not to brow-beat sarah , or reason down her eagerness , which made the father cry out of him , o virum viriliter utentem soeminis , conjuge temperanter , ancilla obtemperanter , unlla intemperanter , but to yield to her ; and when his wife that first betrayed him to her maid , recalled her indulgence and removed the rival of her jealousie , hagar goes from abraham and ismael with her , and though it grieved him to turn them out of doors as rents from him and no parts of him , yet away they went packing with some small pittances , such as after-times termed , ad nothos pertinentia bona , which the athenians called that part of a man's estate that he might give to his by-blows to the value of drachmes , with these he packed them away , the inheritance was isaac's the son of marriage begotten on the wife ; and because ismael's insolence was such , that being he was before isaac in time , therefore he strove with him for the inheritance , and was impatient that isaac should have it , contemning him as the younger , therefore the hebrews think sarah was so earnest to remove ismael , and abraham , who knew in isaac's seed the blessing was to reside , consented to and forwarded it , giving them censum ejus , that is , not lands and houses , for those fixed things he thought better became his heir , but his portable fortune , cattel , money , goods , and such like , these being of value are called a census ; for since abraham being a prophet , and knowing the minde of god , understood , that one so born as ismael was , ought not to come into the oeconomy of god , as b cresolius had at large discoursed , he thought it best for his son isaac's peace to banish ismael his house , and to leave isaac sole master therein . ex quo videtur innui quod spuriis non debetur haereditas , sed victus necessitas , as the text is . sub nomine vero spurii denotat augustinus omnem foetum illegitimum , qualiter & saepius facit sacra scriptura quae neminem vocat bastardum . that these base children are no heirs , nor can have the rights of their parents descend to them , is plain from all authority ; for though they that are thus born may have many brave qualities , according to that the learned selden on the text quotes of peleus out of euripides , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and agamemnon in a homer declares teutrus to be : yea , though in some parts of the world at this day , these natural sons have gentilitial priviledges , though no where they succeed to the inheritante , yet in all ages and times 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 was a word of diminution , and an alloy to any thing it was affixed to ; thus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is opposed to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , so any feigned forein and not proper atticism the greeks termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as proper and regular elegancies they called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 budaeus renders by spuria cogitatio , and suidas explicates 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 beggarly , trite , mean , next door to stranger that no body knows or owns . hence the b latins use virginalia & spuria , id est , procliscoena parte ; so apuleius calls the parts of our bodies which are covered spuria & fascina . though therefore the holy ghost in scripture use not the word bastard , because 't is of a later edition and language , yet he uses that which sets it forth , and by spuriousness intends all dishonour to lust , as the contempt of that ordinance of god which he accepteth the issue born from , and which all mankinde after his example admits to inherit , as crespetius has to my hand made good , and c tholossanus agrees to ; and hence our chancellour in the text inferrs , ecce differentiam non minimam , ] &c. which is purposely subjoined to cast contempt on incontinence , as it is in contradiction and upbraid of marriage , that though the children of them that be such may be valiant , witty , learned , &c. yet there is somewhat in their very constitution that will corrode the vitals of their consistence and duration . this the chancellour makes good from the fourth chapter of wisdom , where the words are , but the multiplying brood of the ungodly shall not thrive , nor take deep-rooting from bastard-slips , nor lay any fast foundation , that is , as carthusian's exposition is , they shall not shoot out their roots , as thriving and pregnant trees expansively do , their children shall not be virtuous and notable for holyness of life . non dabunt radices altas , saith a gloss , though they flourish in the upper boughs of their temporary prosperity , yet they are intenaces soli , their root withers , and so non collocabunt stabile fundamentum ; and all because they are not built upon the rock of god's institution and benediction , marriage , but upon the sands and fallacious levity of wantonness , which is the reason that the doctours say they are inhabiles ad ea quae in decoro consistunt , ut ad dignitates , that is , they ( saith cassanaeus ) can be no counsellours of princes , no witnesses , no doctors of law , not bear arms or ensigns gentilitial , not claim right in their fathers wills , not be successible to inheritances either by custome or statute , as the law of burgundy is . reprehendit & ecclesia quae eos à sacris repellit ordinibus ] such has ever been the account of holy orders , that not onely the church has kept from them persons that were impares oneri , as mained and illiterate , but also sordid and mean born ones , the reason being good , rerum divinarum tractatio maxime ad ingenuous pertineat ; therefore the philosopher in his politiques prohibits husbandmen or men of sordid life to be priested , and if so , then much more reason has the church to prohibit spurious children to be in d orders , because the disparagement of their birth transcends all other incapacities ; for their birth being against the lawes of god , ( fornication and adultery being sins against his purity and institution ) the issue of it cannot but be odious to him , and so unfit to serve before him ; and therefore the church has ever abhorred men of stained origins to be in orders , as well as of polluted lives , such as are keepers of a concubines and loose immoralists , whom it hath not onely excluded before they took orders , but deprived of them after they in them have lived unworthy of and unsutable to them ; for god having appointed those that serve at his altar , and live on his altar , to live and be holy as the god of their altar is . a prophane and lewd , nay a light and jovial priest , whose crankness at tipple and entertainments of riot and dissolute mirth is a blasphemy to his serious and sacred calling , ought to be accounted of the number of those , quos reprehendit ecclesia ; for i dare say , ( who , as a gentleman , know the modes of converse , and the intrigo's of these fashionable civilities and correspondencies ) that priests , who feed high , study and pray little , frequent womens companies , neglect their watch of the flock of god , over which they are set , give way to passion , affect excessive pomp , and are drowned in the cares and lures of the world , never do , or shall bless the church of god , nor will religion according to godlyness prosper in their dayes ; for these will by their ill lives and putid examples , subvert more then they will by their doctrine convert : and therefore the church does justly reprehend these , because they are beams in the eye of her brightness , scarrs in the face of her beauty , spots in her feasts of love , who make the sacrifice of the lord to be abhorred , and the way of truth to be evil spoken of . this i the rather note because men are apt to huddle upon orders without any consideration what the work of holyness and mortification is upon their hearts ; alas , 't is not learning alone that qualifies a man to be a good and gracious minister of christ , for many of them shall have cause , notwithstanding abundance of this , to cry out , scientia mea me damnat , as saint augustine once did ; and at the last day 't will not be , lord , have we not in thy name prophecyed , and in thy name done wonders , that will procure christ's owning : for notwithstanding all these fruits of great parts he shall say , i know you not , depart from me yee workers of iniquity . not then these extern prerogatives will be the refrigeraries in that solstice of his indignation , but the grace of his likeness in the heart and life , the humility , sincerity , and preciseness of the life to the rule of his word ; this , this , well understood and well practised is the best learning in the holy ecclesiastique , and without this , great parts will but make men mad on the world , and venture their eternities rather then not carry the day in it ; which has caused the pious and tender-spirited men in all times of the church to debacchate against secular snares and avocations , so did st. bernard to eugenius , so did a clemangis , so did luther , so have , so will all zealous men do to the end of the world ; for while passions , which are the tinder for satan's spark to kindle upon , be keen and quick in men , they will do any thing to undoe themselves and others souls and securities , rather then not prevail in their design . caesar borgia was known to be the unholy son of that unholy , holy pope alexander the sixth , when his father would cardinalate him , which he could not , ( he being , as spurious , uncapable by canon ) he the pope found this villany to evade the obstruction , he suborn'd certain knights of the post , ( as we say they are , who will swear and forswear any thing ) who came into court and deposed , that caesar borgia was the lawfull son of another man ; and so his incapacity was delete , and he admitted : which contrivement between a sensual father , and a most like son , favoured of so high a falshood and deep-tinctured hypocrisie as suted with no varlets better then herod and iudas , whose interest was onely to rage and get gain , though they prostituted their souls and bodies to the greatest servitude . and therefore no wonder the church does not onely tales reprehendere , but also indignos judicare sacro ordine , & repellere ab omnia praelatia , as the words of the text are . gideon autem virorum fortissimus , septuaginta filios in matrimonio legitimo procreâsse , & non nisi unum solum habuisse ex concubina ; filius tamen ipse concubinae , omnes filios illos legitimos nequiter peremit , excepto uno solo . this story is out of iudges viii . . where gideon is said to have many wives , mothers to those seventy sons , which poligamy was in some degrees successive , and in other degrees contemporary ; for though he had not all his wives at a time , yet at all times he had more then one , it being then no scandal to have many wives , but rather an honour as thereby there was the greater occasion to people the world , then but thin of inhabitants . now the children of these wives were all coparceners in the inheritance , the eldest onely having the double part , and they entercommoned in affection each to other , and were together in the house of their father , loving and tendering each other ; but the base son who was filius meretricis or concubina , ( not that she did make mercimony of her body by taking reward for the hire and pleasure of it as harlots did , who were wont , when their husbands were abroad at sea or otherwise , to expose themselves to the lust of any chapman , and if they proved with childe by it , which was rare and against their wills , to kill their childe ; ) for no such person was this gideon's concubine , but one that probably kept to him onely , and gave him no just jealousie that any one came near her carnally but himself : but that which is the disparagement to her and her childe is , that she was uno viro addicta citra vinculum matrimonii , that she was of another tribe then gilead , and therefore must with her son be a stranger to inheritance . this is that which brands her and disables her son to inherite , which so boyles in the stomach of this blazing star of lust , that he meditates the ruine of all his fathers lawfull sons . in which story there are sundry things observable . first , there is the bastards craft , he enters not on the act alone without a strong party , nor craves aid of any that would come in to him , but solicits the sichemites , whom he calls his kindred , bone of his bone and flesh of his flesh . secondly , the bastard's confidence to attack the sichemites and to solicite them to such a design , and so to engage them by his plausible insinuations , as not onely they should connive at and underhand approve his project , but give him money to entertain men to effect it , chap. ix . . thirdly , the bastard's cruelty to slay so near relations , brethren , so many of them , sixty nine ; in that place , their father's house ; at one time , upon one stone , in sight of one another , upon no provocation , but because they were legitimate and must inherit , not he . v. . compared with v . and . fourthly , here is the bastard's subtlety , rage , and cruelty , partly frustrated by god , and his fancyed sovereignty disturbed by the reservation of iotham one of gideon's sons unslain , whom god preserved to revenge the bloud of the sixty nine slain , upon the bastard and his sichemites , from the . to the . vers . fifthly , the effectualness of small means cunningly carryed and subtlely imployed to bring portentuous things to passe , seen not onely in abimelech his sin in soliciting the sichemites , and murthering the sixty nine sons of his father , but in iotham's parable , who set all israel a-gog to revenge the fratricide purely by the cogency of a parable and the intention of it , which explicates the falseness and ingratitude of the sichemites to gideon their deliverer , v. . and prophecies god's vengeance on them for it , v. , . and god's means to unravell the rope of sand that they twined together to hold their wickedness fast , by sending an evil spirit between abimelech and the men of sichem , v. . lastly , the commensuration of the punishment to the sin , rule he would who was born to serve , ruine his brethren he would who ought to have reverenced them as his betters , partizans he would have in the fact , that having begun he may go through with it ; but god turned his confederates into conspirators against him , that the cruelty done to the threescore and ten sons of ierubaal might come , and their bloud be layd upon abimelech their brother which slew them , and upon the men of sichem which ayded him in the killing of his brethren , so is it v. . thus may we see how just god is to make the sin men design for their greatness , their shame and diminution ; which not onely happened to this bastard and his misguized partizans here , but to sundry others to this day ; for though it be not an infallible rule that gods vengeance alwayes meets with sinners in this world , in the punishments that are declarative of their sin , yet often it is so . that queen of hungary found it so , who being unjustly possessed of hungary against ferdinand the king of the romans , and after emperour , and not able to defend it against ferdinand , crav'd ayd of solyman , who came into hungary , and deprived her and her son of the kingdom ; and henry the third of france when he designed the murder of the duke and cardinal of guise , used saint clement for the watch-word to the assassines , and after the same prince was himself murthered by one clement in the midst of his army . quo in no tho uno plus maliciae fuisse deprehenditur , quam in filiis legitimis . . this is subjoyned to set the disgrace of adultery and fornication home in the abhorrence of all good men , who cannot but hate it , not only because it tends to the utter destruction of souls , but is a provocation of the terrible wrath of god , upon the places where such abominations were used and suffered , they are the words of the stat. h. . c. . but also because the sin and obliquity of it , is so thorough vitiative of the production of it , that it according to our chancellours sense makes them out of measure sinfull , as full of mischief as a toad is of poyson ; which though it be too often true ( as it also is in the children of lawfull marriage , then which mankind never saw greater villains then some of them are : ) so is it not ever true of base children as we call natural sons , for some of them have been in all times men of courage , learning , piety , prudence , every way accomplished . hence is it that not onely our text tells us of a bonus bastardus , but mr. selden out of tiraquella and hutterus concludes , that most of the brave spirits , and able , of the former times are in the catalogue of famous bastards , some of whom have had dubious mothers : so nicias , demosthenes , lamachus , phormio , thrasybulus , theramines , famous athenians and brave men , and others ; if they had any fathers known , yet those known to be theirs by surreptitious and unchaste raptures and effusions . to omit what a epiphanius writes the jews held , melchesedec ideoque nec nomen patris vel matris in sacris literis expressum , sayes he , i say to omit this , there are presidents of multitudes of the greatest heroicks of this tribe , scotius , farthenius , theseus , romulus , abimelech , ieptha , iupiter , neptune , venus , apollo , aeneas , homer , the partheniae amongst the lacedemonians , demaratas , themistocles , demades , timotheus , aristonicus , perseus , hircanus , remus , brutus , iugurtha , alexander , claudius , constantius , theodoris , carolus , martel , carlomannus of bavania , manfred , hencius , pope iohn the eleventh and twelfth , adelstan , amundus king of suevia , pomponius l●tus the great geographer , gratian the great decretalist , andrea , ferdinand king of naples , and alfonsus king of arragon , comestor , these and thousand others , have come of that illegitimate race , and yet been renowned in their times , which shews that god has a secret and predominant power over natures not only act but sin , that he can suspend the vigour and vehemence of that pheontick gallop that makes the genitors of these meet together like torrents , that coupling make a mixture to swallow up all calmness of temper and mediocrity , that this i say is so sweetned , is a mighty mercy to mankind : for else should these , who are beste card as kilian etymologizes bastard , id est optimae indolis sive naturae , and have chearfull and high spirits , sage wits , and mature crafty natures , not be restrained : what prodigies of men would they be ? yea , what terrours would not their vast and various endowments surprized by satan , occasion to the world , but this that is their sin by nature , god corrects by special favour ; not as they are issues from libidinous stocks , but as they are passive under that regency of nature , which in the naturall generative expression of her , is his own implantation , and in which nature vitiated by sin is instrumentall to the multiplication of mankind , and this is the reason why any of this race are so restrayn'd , and so excellent , as to favour any thing calm and sober ; for in nature there is nothing in them but the heighths of all passion and excess in which sense the text makes them to be more fierce and hot by nature then legitimate children are , which is the reason that they have been ever the attempters of desperate actions which no spirits but theirs durst cope with . a lively instance whereof is in frisco the bastard of azzom of este , mentioned in the venetian story , which duly weighed , the saying mentioned si bonus est bastardus hoc ei fuerit à casu videlicet gratia speciali , si autem malus ipse fuerit hoc sibi accidit à natura ] is not onely true as grace gives the advantage against the corruption of nature in all both good and bad , but also as it does more then ordinarily overcome the evil of nature in these that have their pravity wodded and double dyed by the lewdness of their parents , and the lawlesness and monstrosity of the motives to , and kindlings in their coitions , which the text not onely expatiates upon , calling it libido parentum culpabilis , peccatum fornicantium , and that which in legitimis castisque amplexibus conjugatorum non solet debacchari ; for thus our text in sundry parts of the chapter phrases it , that it concludes them to deserve rather the title of filios peccati then peccatorum ] which brings to my mind that tradition of the iews that the cursing tribes on mount ebal were the sons of the handmaids , and the tribes of gerazim were the sons of the free-women , and they were tribes of blessing to shew no doubt that children born against the law of marriage are worse then those according to it ; for children begotten of unlawfull beds are witnesses of wickedness against their parents in their tryall , so saith the authour of the book of wisdom c. . v. . which warrants the chancellours eulogy of lawfull progeny in those words , o quam pulcra est casta generatio cum claritate ; for if all the examples of villany in a profuse and debauched rage and wander of choyceless loosness were perished , but onely that of messalina to mnestor the base and sordid pantomime , whom she dishonoured her self with ; that , that , were enough to set forth the horrid and detestable nature of that impetus , which as it is kindled by hell in the members , does tend to hell in the complement and reward of it . creditur idcirco , caecum illum natum de quo pharisaei . joh. . dixerunt , tu in peccatis natus es totus , fuisse bastardum , qui nascitur totaliter ex peccato . that this blindman was of old held a bastard , was not only the opinion of the ancients who wrote before our text , and the beleif of many christians according to it ; but also the consent of grotius , pererius and others , and that because he is said to be totut natus in peccato , a toting sinner , as we say , a monstrous great sinner , such an one as has not only the blemish of his genitors naturall sin , in which all the sons of adam are conceived and born , but an over and above-sin upon him , not only of the nature , but also of the state which his parents who begat him were dishonourably in , to wit , not the state of marriage which has the presence and allowance of god with it , and thereupon being a kind of sinless and innocent state is honourable among all men , but a state of contempt and sculkingness , a lucifugous state , which is that of the night , a state of prey and violence , that derives on the procede of it , the reproach and scorn of a thorough and totall turpitude . totus natus in peccato ] so tully ranks totum & universum , toto corpore atque omnibus angulis , as if the vitiation of the prostituted parents incubated all the mass , and dislustred it in every limb , article and action of it , totus natus in peccato ; for though there is in all as i wrote before a defilement of every faculty of the soul of man , and a deformity in the abuse of every member of mans body ; yet in one born thus , there seems by this to be a super-superlative impression of sin , which disposes the sinner ( subject of it ) to be violent , eager , cruel , crafty , and what not which is opposite to learning and judgment of temper , the endowment of chaste and lawfull love . hence the pharisees a sect of knowing and smart men , who had notable insights into arts and men , reply so vehemently upon him , tu doces nos , as if they intended to tell him he was out of the road of spurious born men to affect to be learned , that they wholly begotten in the sulphure of lust , are more disposed to actions of mettle and violence then to arts , books , and things of coolness and composure . this the chancellour understanding the sense of them in that place , writes , bastardum non ut legitimum in naturalibus esse dispositum ad scientiam & doctrinam . the summe then of this chapter being to advocate for the law of england in its exclusion of the issue upon subsequent marriage from inheritance , having done it , as he conceives , in the former part of the chapter , he proceeds to such an epilogue as resolves all the prealledged particulars into one mass of assertion , that therefore the law of england does not parificare bastardos & legitimos in haereditate paterna , quia illos dispares judicat ecclesia in haereditate dei ; and therefore determines for the english law , because it doing honour to marriage and punishing its reproach , deserves to have all honour and suffrage from those that are children born in marriage . and so he concludes this chapter . chap. xli . princeps . revera cam quae fortius à regno peccatum eliminat & firmius in eo virtutem conservat . in this chapter the prince is introduced complying with the chancellour's judgment in the preference of the laws of england , as the rule of government here , to any exotique lawes ; which though for other countries they may be convenient , yet to this , other then as assistant laws , are altogether inidoneous . and that the chancellours praise of the lawes may not appear more the effect of custome and use ( the tyranny whereof prevailes often beyond the influence of reason and judgement ) then of experience the best oracle next to that of justice in government , there is such a preface precurring it , as will not be denyed welcome with all men of science and conscience . for as sin is that which promerits a divine curse and impends it over kingdoms sure to sink under the weight and terrour of it ; so lawes in kingdoms which do cast forth the abominable thing that god hates , and preserve the integrity of soul which god accepts and will reward , are certainly the most to be approved and chosen . and this the law of england doing in the method that in the foregoing chapter is described , the chancellour presents the prince , though in the main satisfied , with some further instances of the variety of the lawes in their prescripts and sentences , which is the sum of this one and fortyeth chapter . chap. xlii . leges . civiles sanciunt , quod partus semper sequitur ventrem . this is agreed by all the doctours , partus naturae ratione matrem sequitur , and the reason is because in the law the partus is pars visceris matris ; the reason of this law ¶ mr. selden shews to be , that where marriage or jura connubii could not be , there alwayes partus sequebatur ventrem ; to this vlpian assents , lex naturae est ut qui nascitur sine legitimo matrimonio matrem sequatur , on which the gloss , quoad libertatem & servitutem quod & verum , &c. that the partus , ( which is the childe out of marriage , partus aucillarum & foetus pecudum , paulus joyning together ) is here meant , appears not onely from that of vlpian , connubio interveniente liberi semper patrem sequuntur , non interveniente matrimonio matris conditioni accedunt , but also by celsus , bartolus , paulus , and all the doctours : to these agree the a canonists , and that from the reason which causes the semper in our text ; for that is jure naturae & gentium so to have it ; for though the father that begets may be uncertain , yet the mother that produces must be certain , and whose childe soever it is not , here it is , a plutarch writing of hercules sayes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that he was the son of a lewd woman , and because iephtha was the son of an harlot , id est , extraneae saith grotius , they thrust him out of his father's house , as being no chip from his block , but his mother's son , and as such disparaged ; according to this b turnebus writing of the spurii uses these words , horum natales non habent obscuram matrem sed patrem appellare non possunt . this the holy text regarding is sure to remember the mothers name as the glory or blemish of her son , for though the father be the motive and active c cause of generation , yet the matter of the childe is more from the mother , ( the f●tus being formed by the vis plastica which consists of the nature of the womb as well as of the seed of the father ) and by conjunction of them both ( as say anatomists ) forms all the parts of the body as to their spermatical and solid substance , which compagination being resident in the belly of the mother , gives the childe a stronger tincture of the mother then father , from whom it passes onely in a whirlewinde ; nay besides this the mother by a constant act of sovency does in se ipsa generare , as she ( does by the umbilique veins unto the arterias illiacas , and all the rest of the parts of the body by which air is given to the childe ) convey nutriment from her self to it ; which is the reason that children do most favour the mother , not onely in visage but in humour , and why wise men do choose brave women to breed upon ; for as a course cloath proves an ill ground for a noble design and draught in picture , and as a tough and mishapen logg will deform the art of the noblest statuary , so will an ill-chosen wife vitiate and alloy the brood of any family : which is the reason why choices by prudence ( as they fashionably call their marriage iockkying , wherein persons bartar away their comforts and conspicuities in a brave and procerous issue , for accommodations of pelf and coyn ) are so often repented and digressed from with abhorrence , because there being no true splendour , the disseminations whereof will bud and blossom in posterity , the portions the father acquired with the mother is doubly and trebly expended with the daughters and sons , whose blemishes thereby are fain to be compensated for with great and wasting portions : the like mischeif is where brave women marry with absurd men , the incomplacency whereof they often , if not always repent . vt si mulier servilis conditionis nubat viro conditionis liberae . proles eorum servus erit , & è converso , servus maritatus liberae , non nisi liberos gignit . this is the instance wherein the partus does sequs ventrem . a lord has a woman that is his vassal , she marryes one that is free , as the childe is ingenuns qui ex matre natus est libera , so is the childe of a bond-woman a slave or servile in his condition ; now though servitude be against the law of nature , and this constitutio iuris gentium . and this constitutio iuris gentium being introduced by saving persons victor'd from death , who having the right of their persons so under their power and kept alive till their manu-mission , they marrying , though to a free man , do not produce a free childe but a bond one , because the partus does sequi ventrem , and the mother being in that condition , the proles or partus of her must so be ; mr. selden not without warrant thinks this thus to be , vpon presumption that the marriages with bond-persons were alwayes accounted but contubernia and not connubia , and they were called contubernales non conjuges , which i finde allowed by for●erius , nam quod inter liberos & cives romanos matrimonium , id in servorum conjunctione & copula contubernium veteres appellarunt , which iustinian calls servile consortium ; and contubernales vlpian expounds by conjuges servi & ancillae , when as connubium * he terms ducendae uxoris jure facultas , nullum cum servis : so that when the mother does convey her condition to the childe and not the father , as in this case it should seem to be understood , such are children contubernii non connubii ; yet this i finde currant , that the childe is wrapped up in the mothers condition , and whatever the father be , yet in reputation of the civil lawes is as his mother is bond or free . sed lex angliae nunquam matris , sed semper patris conditionem imitari partum judicat . this is confirmed by all our books , si vne villein prent frank feme a feme , & ad issue enter eux , l' issues serront villeins ; mes si neife prent franke home a sabaron , lour issues serra frank , saith littleton , according to all the books , quia semper a patre non a matre generationis ordo texitur . and though i know bracton tells us in the county of cornwall there was a custome in some mannours , that if a bond-woman marry to a free-man , and she , by him admitted to his free house and bed , have two children , one to a free-man , and she , by him admitted to his free house and bed , have two children , one shall be free as her husband , the other bond as she ; yet the same authour sayes in another place the general law was , if a bond-woman marry to a free-man , the childe of them shall inherit , which must be understood of being free as his father , for else he could not inherit , the rule being , quicquid acquiritur servo , acquiritur domino il lius servi , supposing them the partus not to be monstross , ( for then they are non legitimi by both lawes , such as are mentioned by * neirembergius and ammianus marcellinus , aliquid habens duo capita , as the gloss on paulus explains prodigiosum . ) if the partus be secundum membrorum humanorum officia a childe , it shall be reputed and as such , follow the condition of the father , and be his childe whose the marriage is according to the rule of both lawes , pater est quem nuptiae demonstrant . quae putas legum harum melior est in sententiis suis ? crudelis est lex quae liberi prolem sint culpa subdit servituti , nec minus crudelis censetur , quae liberae sobolem sine merito redigit in servitutem . because our text-master here is both the scrupler and the resolver , and seems to determine hardly against the civil law , which in this case he calls lex crudelis , by the same reason the civilians may call the common law so , ob exclusos nothos ex subsequente matrimonio , treated on in the foregoing chapter . because ( i say ) there ought to be a very calm soul and a wary pen in writing any thing to the prejudice of the accord of both lawes , my humble offer shall be in excuse of the civil law for the continent , thus prescribing , that 't is ratio quia ius , and in lawes of positive justice , there can no other reason be given , but the pleasure of the law-maker ; which as they allow us for our law , we must allow them for theirs : for since the amassers of the civil lawes are deservedly to be owned and honoured as men as learned and wise as any either the greek or our law-makers have been , that which they , in this case , have constituted , to be the law of the empire , is to be thought as fit for that vast body , as our lawes appointment fit for us to observe . for as he ought to be counted a mad-man , that because there was one messalina , whose wantonness , if it could be coped with an hundred times a day , would rather be wearied then satisfied , cryes out against all women as insatiable ; so are they to be esteemed little other then mad , who , because there are differences in the manner of exhibiting justice according to the common and civil lawes , exclaim against the civil lawes for this , when as it concerns them rather to applaud the wisdom of law makers in framing their lawes thus variously to answer the varieties of men and manners , which arise from constitutions and accidents attending them . for there is no diversity in either of the lawes but has topique arguments very rational allegable for them , and upon scrutiny will appear to be so strenuous , that all circumstance of time , place , and persons considered , they will not easily be overthrown ; which gives me the constant monition to be very circumspect in averring any thing on the side of one law , which may have any unbeseeming reflexion on the other law. all that i have written , or shall write in the case of both lawes , shall i am resolved savour of no unhumble affectation . i honour both lawes in their respective sphears , though ever , as to the government of england , i must , and shall ever say and protest to all men , that the common and statute-laws are in my mean opinion the only way of wise , milde , and effectual rule of it , that the wit of man can prescribe , or the experience of man discover , alwayes premising the association of the civil law in those cases wherein that law is adopted , and made by use and custome part of the lex terrae . and therefore though the chancellor here doth marshall the arguments on both sides , that out of them well considered and discussed , the reason and judgement of the prince whether to adhere to may be cleared ; yet shall i , in the illustration of it , onely modestly point at those things that are material in both their arguments as here they are alledged , and so proceed . legistae vero dicunt , quod non potest arbor mala fructus bonos facere , neque arbor bona fructus malos facere . ac omnis legis sententia est , quod plantatio qualibet cedit solo quo inseritur . this is the defence the civilians make for their making the partus matris sequi ventrem , because every plant partakes of the nature of the soyle in which 't is set and grows ; for the root fixed in the ground and drawing nourishment from the solum or terra ( for it is all one ) the plant is said cedere solo , because the soyl or mould wherein it grows , victors and conquers it from its own original nature to somewhat analogous to the nature of the soyl , which is cedere solo , as we say , a resignation to become one in nature with the soyl ; so cedere loco , urbe , patria , domo , is in authours to leave ones country and residence , and cedere bonis & possessione is in this sense used by quintilian , and amori turpi cedere by valerius , cedere testibus by vlpian , and vives when he expresses the desire of one to his wife to give up her interest in her son-in-law to him , writes , exorata uxore ut sibi genero cederet , and some where i have read of cedere foro for bankers , who defraud men of their moneys by non-appearance , which is giving themselves up to obscurity , playing least in sight ; all which answer the purpose of our text-master , rightly phrasing his intention , that position has a great influence on action , and nourishment on nature . hence argue the civilians , if a plant by meer being in the earth , partake of the earth , and is good or bad as the soyl , is in which it is ; then the childe being pars viscerum matris , and lying long in her and having ablactation and fovency from her , must needs be according to the ordinary dispensation of nature as the mother is : and therefore if the mother be good or bad , the childe is presumed such as she is to be , since according to nature , a good tree cannot bring forth evil fruit , nor an evil tree good fruit . therefore , say they , just it is that the partus which lodges in the belly of the mother and partakes so much of her as to be predominantly in nature hers , should be denominated from the mother and be reputed bond or free , good or evil as she is ; which argument of theirs carryes much of reason with it , for it is built upon undenyable premises , such as the tree is , such is the fruit , our saviour's argument , matth vii . . according to which all mankinde conclude , menander has the same , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , grotius makes this the principle of nature which all men concurr in ; so that supposing god the supreme cause interpose not , nor he by his influence divert not the ordinary course of nature in causes and effects , it stands for a general rule not to be denyed , that a good tree , so long as it is good , brings forth good fruit , and an evill tree while it is evil , brings forth bad fruit , a bonis bona proficiscuntur necesse est , à malis contra , saith clarius , which i suppose he borrowed from saint augustine , as did also aquinas , who to this purpose quotes him ; for a surer rule cannot be given , then to judge according to causes of effects : so that the mother being the nourisher of the childe , which she supplyes with sustentation from every part of her body according to the capacity of the childe , which without it would never thrive nor make to birth , ( since neither the mouth , nor the liver , nor the heart , say the physicians , do prepare nourishment for the childe , but the mother from her store and treasury of succulency sustains it , ) there seems very high reason that the mother predominating in the nature of the childe , should , where not the mother in marriage , denominate the childe , and its external condition follow the nature of the belly of the mother wherein it was so long steeped , and from whence so carefully produced ; and this the law-civil so orders , because the mother is more limited and bound to abide with the childe then the father , for which cause 't is proverbially said , 't is a wise childe that knows his own father , for the mother every one must know that either sees her delivered , or hears it from those that saw her , and thence transmit it to others and so it becomes notorious , but the father of the childe , there is onely the mothers word for , which though it be of great credit , being ( in a cause of vehement suspicion ) assured in the pains of that condition , yet is not so demonstrably true as the certainty of the mother , from whose belly the childe is taken ; which being the reason of the civil lawes position , partus semper sequitur ventrem , seems to me not to be without much of reason in the observation of it . ad haec legis angliae consulti dicunt : quod partus ex legitimo thoro non certius noscit matrem , quam genitorem suum . nam ambae leges quae jam contendunt , uniform iter dicunt : quod ipse est pater , quem nuptiae demonstrant . the law of england looking upon the childe as the partus legitimi thori , concludes the childe as well capable to know his father as his mother ; for the knowledge here being that of polity and civil enaction , followes the prescript of the law which appoints and orders it , which is that lawfull procreation be within marriage , so that if a childe born in marriage may know his mother who is the wise of the father , the same childe may by the same rule of marriage know his father , that being concluded on by all hands , he is the father who is the husband of the mother in marriage ; for as the parturition of the childe by the mother declares who is the mother of the childe , so the marriage of the mother with the father attributes the father-hood of the childe so begotten and born in marriage to the husband in that marriage , and his in reputation of law it shall be , if no impossibility in him to beget it be maintainable ; and as wedlock declareth the mother as to honour , so doth it the father as to legitimation and inheritance ; and the man being the head of the wife , and the wife and he but one person in the law , the law of england holding up the honour of marriage , and vilifying whatever is honestative thereto , judges it more convenient ut conditio filii ad patris potius quam ad matris conditionem referatur ] as the texts words are , and being with us there is a rule which none must depart from , that no man ought to think himself wiser then the law , all argument against this constitution and practice is sacrilegious ; for though here be under marriage a discrimination of sex , yet is there an unity of nature and indiscriminate parentage , so is the text. cum de conjugatis dixerat adam , erunt ipsi duo in carne una , quod dominus exponens in evangelio ait , iam non sunt duo , sed una caro . this is produced to shew both the antiquity , honour and innocence of marriage ( instituted in paradise , and hence by god sanctified to the ends of his institution ) and the intimacy of marriage , which purports a dearness of invisceration beyond that of adhesion , for 't is not said they shall onely leave father and mother and cleave to one another , but 't is said that those acts of leaving dear relations , and cleaving to the solitary choice marriage makes , shall be that , whereby they may be one , which aphorism uttered by adam in gen. . . was ( i am apt to think ) when he was extatique or seraphique above what he as a meer man was for it is prophetique and prefigurative of what should be the conviction and duty of man and woman in marriage to the end of the world . i take my notion from saint augustine and clarius ) i say when adam was thus abstracted from humane feculencies , and carryed above the perch and flight of the narrow and dwarfie prospect of mortality ; then , then , was it that he said of man and woman in marriage , erunt caro una ] that is , sayes vatablus , unus homo , for that ipsi duo in carne una , is our lords addition in matth. . v. . where the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seems to me to be somewhat lesse then that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 mark. . . for when a thing is joyned to another , as fletchers do in pieceing of arrowes , or masons in cementing of stones , or builders in joyning frames , though there be a support and assistance each of other , yet there are flawes and joynts which wind and weather may pierce and make chinques and chops in , but when a bone forced aside , is set in its proper place , and a cyons inserted the stock , and let into a convitality with it , then it growes to be one invisible punct of kindness and conjunction , then is that done which this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seems to me to intend . thus our lord sayes , adams erunt una caro is made good in the double 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which refers to the union of body and mind , by which è duobus fiet unus , not as if the holy ghost pointed , saith erasmus to the carnall contents of marriage , which the greeks termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or that he commended this union as it was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 wherein wives had delights of husbands as husbands had of wives ( though this is the effect of marriage ) but our lord drives it thus home to represent the dearness of that tye in the virtuous amicitiality of it , if it were abstracted from all possibility of sensuall fruitions , and the oblectaments of carnality ; and so st. paul in ephes. . . applyes it to christ and the church , which dignification of marriage grotius thinks to be that which declares marriage to be rem vere sacram , non humanitus sed divinitus repertam , for 't is god that can make two in an house to be of one heart , and one minde , that is , to be two in one , which the heathens made the top of concord and kindness . now this the chancellour applyes to the case in point , if , cum masculinum concipiat faemininum , ad masculinum quod dignius est referri debet tota caro sic facta una ] as much as if he had said adam ( the first man and husband ) under the polysexuall word , man , couches woman part of him , and imports the nobility of humane nature to reside in the man as being the first tempore and dignitate , which i write not to advance the huffs and prides of men over their companions , who are bone of their bone , and flesh of their flesh , the best , onely , excellent , and rational comforts of life , but to assert the rights of man-hood , and to excite men to live and love , worthy the majesty and merit of their divine endowment ; for in that man is called creaturarum pretiosissima & dignissima , and is preferred above the woman , as theophilus antecessor makes good , and fabrottus observes on him to be according to the lawes of nature , and to what god declares gen. . . where he sayes to the woman thy desire shall be to thy husband , which aben - ezra reads by obedientia tua erit viro , it is to be understood , not as if the dominion of man were a tyrannous and violent one , but to shew there is a certain naturall and affectionate virtue implanted by god in the woman , disposing her with complacential delight to submit to her husbands milde and civilly-obliging government , as that which she is made free by , & rests happy in . now though grotius according to the ballast of his incomparable judgment makes the subjection mentioned in tim. c. . v. . to be a branch of servitude penal on the woman being deceived , and so first in the transgression ; yet surely it is that w hc by the institution of god is very comely in them to submit to , & very contributive to the order and propagation of mankind , and therefore the glory of modest and virtuous women to own in all the latitude of a marriage loyalty and sweetness ; for no wife recalcitrates the government of her husband whom she is presumed to have chosen and voluntarily to have pledged her faith to and reverence of ; but she that is fickle in order to dishonour , and weary in preparation to a desire of change : for man being in his nature so excellent that he has the perfection of all creatures in him , the lustre of jewels , the flourish and increase of plants , the activity of animals , the intellect of angels which made him be accounted by the ancients quoddam omne , mortalis deus , eccel●ior coelo , profundior inferno , longior terra , latior mari , as phavorinus his words are , ( for which cause the ancients have attributed so much to him that they have made all things nothing in compare with him ) i say , as woman is blessed rather then burthened with his superiority , so are their children begotten by him , dignified by bearing his name , and becoming him in the continuity of a succession , which is the reason that our common law considering that the greater is more worthy then the less ( because it implyes the less in it , and has prelation from the super-addition it hath ) appoints the childe to follow the condition of the father and not of the mother . ipse quoque civiles leges dicunt , quod mulieres semper coruscant radiis maritorum suorum . this tholossanus confirms from iustinian and the authentique ; and vlpian concludes , femina nuptae clarissimis personis , clarissimarum personarum appellatione continentur ; and acursius gives this in our text for the reason , quia uxor fulget radiis maritorum . hence is it that the * lawes say , vxores domicilium & forum maritorum sequuntur , for since they are one flesh with their husbands , good reason is there they should have the same respect their husbands had while they continue their husbands relicts , or marry in his degree ; for though if they marry above , they mend their lustre as their marriage is more illustrious , or equally , they are no losers , but still do coruscare radiis mariti ; yet if they take husbands beneath it , the courtesie of england is , they retain their best title , and this women have to preserve their matronage , or if not that , to compensate the subjection they are under ; not that which of old was executed in case of disloyalty , but that affectation of shew and pomp which is naturally in them , and which if they are abated in or deprived of , they grow discontented and unpleasant . for though the lawes of nations do abhorr a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and he deservedly be reproachable , that being enthroned by god does consent to his abas●ment and vility , as that unworthy husband deserves to be accounted to do , who is shrivelled up to nothing by the parch and sharpness of his sultanish wife , as budaeus complains many henn-peck'd men are deservedly accounted ; yet does civility , religion , and good breeding commend to , and command from men love , respect , yea , high kindeness and courtship of endearment to the wife , as the flower and fineness of all domestick contents . and since the wife has no greater , nor at all any nobler portion of the felicities of life then what she has devolved from and imparted to her by her husband , worthy and wise wives , or those that such women would be accounted , should be very exact and choice in the fixation of their marriage-loves , for surely the aberrations and straggles from pudicity , and the intoxicating labyrinths of stolne and defaming pleasures , commence from the violencies that either parental commands , or ambition , or covetousness gratified , surprise women of rare parts and persons by to unequall matches , from the husbands of which these wives having no coruscation , but rather a total eclipse through the fogg and dead night of their dismal and inorient appearances , these sparks , enraged by the loss and diminution of their names and reputations , turn apostates to their plighted troth , and seek abroad what they have not at home ; to prevent which , as the great botch and plague-sore of womanhood , and that which is the dead flye in the precious oyntment of their reputation , it were to he wished they would resolve on such husbands as have cornscancy , and those had , and that had from them , be satisfyed with them . for surely , next the grace of god , nothing is so certain and effectual a muniment of feminine modesty as a compleat and sutable husband , which does not onely make all eggs of attempts on her , addle , but gives her a serenato in her minde , and disposes her to the most noble and notable endeavours and performances of her sex , which livia the empresse , wife to augustus , so made true , that she , from the example and ambition of congruity to her husband , grew the mirrour of mortals , not onely loving and observing him while alive , but rewarding even the news of his being in heaven brought her by numerius , who not onely said , but swore he saw his soul fly into heaven ; which felicity of his she no doubt would have thought her self little concerned to reward , had she not had a vigorous affection from him , as the he , from whom she had the cataracts and full streams of glory descending on her . for womens passions are the signs of the heaven , and points of the compass they steer by ; and therefore to keep those influences of theirs within compass , that they portentuously inundate none of the fair grounds of religion , which they are the greatest pretenders of neighbourhood to , policy and lawes of nations have allowed them many reserves to blunt and break the ferocity of such passions in them , which to men are denyed , mulieres honore maritorum erigimus , & genere nobilitamus ] sayes our text. for though that be a true rule , ceo que est gaine per marriage poet auxi estre perde per marriage ; yet if a queen-dowager marry any of the nobility , or under that degree , she loses not her dignity . katharine dowager marryed to owen ap theodore esquire , and maintained her action as queen of england , and the queen of navarr marrying with the brother of edward the first , sued for her dower by the name of queen of . navarr and recovered it . but si minoris ordinis virum postea s●rtitae , &c. ] if she marry in the same order with the first husband , she goes as the rate of the second husband is , so is the rule in acton's case , unless the dignity be such by her birth , then 't is inseparable ; but if not , then if upon her second marriage she marry in the same degree below her husband , she loses , so is the judgement of the judges in acton's case before cited , and in the countess of rutlands case , and so our text is to be understood ; yet if she marry not in her first husbands degree but beneath him , as being a noble woman to a knight , or being a lady to a gentleman , she by the courtesie of england holds her own degree of first or former marriage , as we see in every dayes experience made good ; and this the law of england allowing in courtesie to women , does honourably by them , considering they are the mothers to those children which succeed to their fathers , and whose husbands are presumed to will their honours to those their wives on whom they beget their children , as to such children begotten of them , upon which ground the chancellour concludes , that since the mother ( retaining the honour of the husbands condition who is father to the son of marriage ) is said honore & conditione resplendere ] the son who is born to the father will by the same consequence be resplendent by his father's state to which he succeeds ; for the father being the predominant in marriage , the denomination of the childe as to freedom or bondage is by our law to follow him , si neife prent frank home , lour issues serra franke , is littleton's rule . crudelis etiam necessario judicabitur lex , quae servitutem augmentat , & minuit libertatem . nam pro ea natura semper implorat humana . quia ab homine & pro vitio introducta est servitus . this our chancellour writes to disable principles of absolute government introductory of will for law , and of slavery instead of liberty , from prevalence with the prince , whom he endeavours in this discourse to make a mirrour of goodness and regal temper ; and the better to press on the prevalence of his loyal project , to all the precedent insinuations in behalf of lawes , as the rule of manners in men , and administrations in princes , he adds this of inveighing against cruel legality , which the scripture calls , setting up mischief by a law , as well knowing that nothing is more common with politicians then sub gravitatis purpura nepotari , to pretend law and justice for will and oppression ; which abuse of god's trust , and mens confidences evidencing it self in the fruits of hard conditions on willing and ready obedience , he terms a cruelty because an approbation of that which is the abridgement of natural freedom , and a stabilition of that in the room of it , which is unpleasing to and regretted by the humane nature ; for though servitude was brought in upon necessity , and reason it is that those that reserve them whom they could slay , should after saving of them have their service : yet is it not to be promoted to such high degrees of diminution of man's natural freedom , as shall extirpate all remains and foot-steps of the primaeve sanction , which , as the law of nature , is immutable . for servitude is the result of that defection from god and nature's innocence , which lust and corruption occasioned ; and as the longer it wanders , from its first station , the more contumacious it is against the rule of its censure and restraint : so the more adverse to a return of regulation it is , the more pugnant with that justice and lenity that should associate power and magnanimity . and therefore since liberty is the instinct of all creatures , who are not brought into the power of man but against their wills , and who no longer rest under it then that power has a menace and dread in it ; which liberty in men is that jewel and darling that they will venture life and soul to preserve it from losing , or else recover it when lost , as we see in the combustions of all the world , which chiefly are to contend for it . i say , this natural liberty over-powered and become servitude is so much the abomination and distast of humane nature , that the chancellour sayes , it is a cruel law that exacts against the law of nature and the god of it , who being himself a free agent , created his creature to a freedom . now though the lawes of men have profitably introduced restraints of freedom in the sinfull excesses of it , and reduced the power of multitudes into few , and the dictates of licentious will to the empire of religious justice and moral order ; yet is this no violence or rape upon the natural freedom in the main design of its position and donation , but a preservation and improvement thereof to those principal ends , that the mercy and wisdom of the endower thereof indulged it for , which , if not ●tinted in the excursions of it , ( as sin by defacing the soul has sensualized it ) would be a more intolerable evil in men then in beasts . and therefore lawes and law-makers are patrons to common preservations , and to be honoured as secundi dii , who do favere libertati where they may do it salvo ordine & regiminis pace , and yet propitiates it no otherwise then it is favourable to its self in a regularity of action and a virtuosity of order , which so far is accommodated to multitudes , as they , by the prevalence of virtue conquered to the will and empire of prudence , are fitted for the entertainment of it : which because the people of england are in the mass of them more civilized then most nations are , the lawes of england are said by our text , in omni casu libertati dare favorem . haec considerantia iura angliae , in omni casu libertati dant favorem . that is in omni casu legali dant libertati legalem favorem ; for the chancellour's drift is not to assert an incircumscription of favour in the law to licentious and ill-constituted liberty , ( for then he had made the lawes of england patrocinies to every extravagance ; nor would any virtue or order be promoted here , did the law in the latitude of this notion favour liberty . ) but this in omni casu libertati dant favorem , is so to be understood of the law , as it makes good the definition of ars aequi & boni , which a law ought to be , and then the sense will be , that the lawes of england in all cases wherein freedom consists with virtue and peace , favours the freedom of lord and vassal , that the rights of both may be properly conveyed to them ; and hence the learned know that the lawes of england are called libertates angliae , quia liberos homines faciunt : and therefore the first chapter of magna charta is concessimus etiam & dedimus omnibus liberis hominibus regni nostri , which words sir ed. cook sayes extend , to all persons ecclesiastical and temporal , yea to villains , for they are accounted free-men saving against their lords , yea against their lords when they unlordlyly abuse their villains ; for though villainage did draw service , and the lord might command his villain or neif to any service that was painfull if honest ; yet to that which had turpitude in it , or was above the nature and ability of man to do , and was onely fit for a beast , the lord jure dominii could never force the villain to perform ; for as the rule is lex non cogit ad turpia , so is it also lex non cogit ad impossibilia . and the law of england being grounded upon the law of god and upon reason and religion , defends the villain from the unlawfull tyranny though not the just service of his lord ; for though a villain shall not have an appeal of robbery against his lord , for that the lord may lawfully take the goods of his villain as his own , yet in an appeal of murder , poet aver envers son seignior vne action d' appeal de mort son pere ou d' auters de les ancesters que heire il est , saith littleton ; for the law , sayes fleta , does not as of old reach ad vitam & mortem , sed hodie coarctata hujusmodi potestas , qui enim servum suum occiderit , non minus puniri jubetur quam si alienum interfecerit ; and to this littleton gives many instances of the lord's accountableness if he do exceed , as appears in him in the title of villainage , which declares the law of england , dare libertati favorem . for the law was not made to shelter oppression and injury , but to succour innocence and passivity against it ; and if the lord upon presumption that his neif is his , shall ravish her , notwithstanding his propriety in her as to his honest service , yet his injury to her chastity , which is her jewel , by the lawes of god and men , shall bring on him loss of his eyes , propter aspectum decoris quibus virginem concupivit , and loss of his testicles whereby he was excited ad calorem stupni ; and if this will not secure the unvitiated chastity of a woman , but her lord will ryot on her , as was the sin of some in edward the first 's time to do , then by the statute westmin . . c. . e. . 't is declared felony , which the leet being in the l. mannour , cannot ( saith sir edward cook ) enquire of but the courts of law , because 't is a felony by statute not by common law. yet here is to be remembered , that though marriage with a freeman enfranchised a neif , yet even then , though the lord could not recover his neif from the freeman that had enfranchised her during coverture ; yet the lord for this should have recovered a reasonable recompense for the service of his neif : and so if a villain be made knight , though there be no reduction of him to his service , yet there is a rationabilis valor to be recovered , for the law though it cannot recall what is once done and cannot be undone , yet does it preserve as well to the lord his liberty as to the villain or neif their freedom , and so the lawes of england are justly said libertati dare favorem . et licet jura illa judicent eum servum , quem servus in conjugio ex libera procreavit , non per hoc jura illa rigida , crudeliave sentiri poterant . the lawes of england adjudge the childe to that state which the father is in , for the mother does nihil conferre to the childe but onely nourishment and production , such as the father is , such is the childe , so saith littleton and sir edward cook on him , and that because the husband and wife being one person in law , the condition of the man shall determine the condition of the childe begotten on his wife ; for as a neif marrying a freeman during coverture is enfranchised , so a free-woman that marryes a bondman is during her coverture a bondwoman , and cannot redire in pristinum statum till she be released from the coverture , since such as the husband is , must by the law the wife be . for though in case of crowns husbands may be subjects where wives are sovereigns , as king philip was to queen mary , yet between subjects the lawes of matrimony are such as devolve the prerogative on the husband , and subjects the wife to his condition , which the queen of france sister to henry the eight made good to charles brandon , and queen katharine parr , who after the death of hen. . marryed the lord seymour , and was a very respectfull wife to him ; and lipsius on tacitus shews this to be the nature of marriage in all times and amongst all people , and so is not a violence or fraud by which women are either forced to and beguiled into a degradation , but an act of will and choice , proprio arbitrio se fecit ancillam ] that is , not onely to do that which the a ancilla usuaria did , if her husbands fortune will not support her without it , but also that which the ancilla usuaria was not bound virtute ancillatus to do , that is , to bear children , which though the bondwoman might not be b bought to that end , yet the wife is marryed so to do ; and when she knows this is the law of her marriage , and is carried by that motion of nature which is rational to put her self into the conjugal chariot , and to be hurryed up and down with the vicissitudes of it , and to submit to the conduct of her husband , the guider of it ; when , i say , this is soberly and with consideration entred into and accepted , the woman is bound so long as her husband lives to be conformable to him , and the proceed of their ventures must be in condition as he that is of them the father : which no doubt the heroique constantia the relict of raymond prince of antioch was contented with , who after she had lived a good while a widdow , refusing the affections which many princely suitors profered unto her , yet at last descending beneath her self marryed a plain man reynold of castile , yet was contented with the choice she had made , and the reason was because there was a free choice of her own , which to repent of would argue her light , and continue on her an impossibility to be remedyed , which contradicted the merit of generous patience and contented freedness . for though god has left to man the vice-regency of all creatures under him , and as the great c master of reason , has subjected the woman to him , and endowed her onely with such proportions of courage and art , as may make her know good and evil , and submit to her husband as her head , and have desire to him as to her boundary , which when she does and shews her self to doe , she does her duty ; for the wife is sub potestate viri , & ipse dominabitur tibi ] saith the scripture , which being the magna charta of man's superiority , the woman is hence bound to her good behaviour , which many of that noble sex delight with so great readiness to own , that they sometimes steal the hearts of men from them , and with it their empire , which while they abuse not they deserve to keep , and have sooner from wise men then fools . by all which it appears that marriage is favoured , and the children of it succeed to the state of their father either bond or free ; and that the wife ( if she be not sovereign ) is under the common law of marriage in all the precise determinations of it , and that the wife so being , can expect no better a reputation then reflects on her from her husband , whom though she is free to chuse before she marry , yet she is bound to cohabit with and submit to when marryed : for a wife being a name of honour and not pleasure , as the husband that duely considers the friendship and beauty of his conjunct ought , so will he kindely and with tenderness and respect apply himself to her , and so work upon her love that she shall think her yoke easie and her burthen light , while she is with fidelity and courtesie thus victored . this is the summa & forma legis angliae in this case , which gives some in-let to the judgement of both lawes , in the wise constitutions of them for the respective places of their regency ; my conclusion being in this case as in the former , for england the law of england is the best , pater est quem nuptiae demonstrant , & nunquam matris sed semper patris conditionem imitari partum judicat . ] chap. xliii . princeps . anglorum legi in hoc casū , &c. this whole chapter , as the . is onely serviceable to the compleatness of the dialogue , and to the vehiculation of the chancellour's design to that perfection , which his aim ( through the mediation of providential advantages well observed and improved ) promised him to arrive at ; for though many men and things properly fitted and industriously followed do not attain what , in the enterprises of their actours mindes , they are studious to dispose themselves and their endeavours towards : yet so long as reason , which seneca calls , a portion of divinity , sunk and lodged in us , and that which leads the creatures and follows the gods in the wisdom and conduct of it , so long , i say , as reason swayes men , they are well guided , and probable to arrive at the lawfull issue they expect . this being the chancellour's argument in the personated prince , that he makes it omnis honesti comes , and thence concludes on the law of englands side , is but what he has throughout this treatise done , and which he thinks the lawes of england deserve : and that because they do not onely shew themselves just to give to every one their due , that will sue to them for right , but establish right to innocent and impotent babes that are not able to help themselves . and hereupon the rule of reason and law is , as here quoted , odia perstringi & favores convenit ampli●ri ] which is the rule of the civilians , and accursius applauds it , so also does our laws ; for where any case is equilibrious and is capable of two senses , the best and most beneficial one is put upon it , and it made to intend what is most in favour of justice and mercy , and in prevention of discontent and hatred . seneca tells us that the old rule of wisdom was to avoid three evils , hatred , envy , contempt , the way to do which , wisdom onely can discover ; and that being in the law which is sapientia temporis , it in all cases preferrs justice and mercy before oppression and violence : and this not onely in exposition of regal grants , and in cases that concern the estates and liberties of men , but their lives also , and most chiefly , witness that of mr. stamford , where it is said , that though by the strict rule of the common law , he is not to have benefit of the clergy who cannot read any where in the book offered to him ; yet in judgement of law , and for favour of life , he that can read but a word or two , or spell letters , and after put them together , shall be allowed clericè legere ; so whereas a prisoner in felony was in a bad case , because he lost his challenges to the inquest that found him guilty , and yet upon the inquest of office formerly used , ut sciatur qualis ordinatio liberari debet , he forfeited all his goods and chattles and the profits of his land , until he had made his purgation ; the thrice reverend and learned sage sir john prisot studying how to relieve the poor prisoners that were destitute of counsel , with the advice of the rest of the iudges in hen. . ( our chancellour's ) time , for the safety of the innocent , would not allow the prisoner the benefit of clergy before he had pleaded to the felony , and having had the benefit of his challenges and other advantages had been convicted thereof , which just and charitable course hath been generally observed ever since , which is an argument of the favores c●nvenit ampliari in the text ; and that it may carry on the majesty of government in a due circulation of inferiority and superiority . odia perstringi is also the care of our law , for all feuds and animosities it discountenances , and as they appear punishes as breaches of the peace , or by actions of recovery against the dammage of them if just cause be ; for our law being lex pacis & concordiae , promotes every adjument to quiet , and prosecutes every remora thereunto , and therefore declares , that it conceives jealousies and distances in names and wayes of contradiction each to other , to be a not onely feaver but plague-sore to a nation ; to cure which there is a rare prescript by one of the best state-physicians ( if the phrensie of the nation would have hearkened to him ) that ever this or any other nation had , given in these words , beware of exasperating any faction by the crossness and asperity of some mens passions , humours , or private opinions , imployed by you , grounded onely upon the differences in lesser matters , which are but the skirts and suburbs of religion , wherein a charitable connivance and christian toleration often dissipates their strength , whom rougher opposition fortifies , and puts the despised and oppressed party into such combinations as may most enable them to get a full revenge on those they count their persecutours , who are commonly assisted by the vulgar commiseration , which attends all that are said to suffer under the notion of religion , thus that wise king ; and to this purpose speaks a right noble and well-advised sage and grandee after him , who minding the wisdom of the nation , what , as wise physicians , they are to doe , divinely counsels them , be not ( saith he ) too severe and rough towards your patients in prescribing remedies , how well compounded soever , too nauseous and offensive to their stomachs and appetite , or to their very fancy , allay and correct those humours which corrupt their stomachs and their appetites . if the good old known tryed lawes be for the present too heavy for their necks , which have been so many years without any yoke at all , make a temporary provision of an easier and a lighter yoke , till by living in a wholesome air , by the benefit of a soberer conversation , by keeping a better dyet , by the experience of a good and just government , they recover strength enough to bear , and discretion enough to discern the benefit and the ease of those lawes they disliked , thus the grave chancellour and counsellour of england , whose divine and ponderous counsell in these words , confirm the wisdom of the law alledged in our text , odia restringendo & favores ampliando . ] for surely if any thing carry a law with credit to its noblest end , the glory of god in the orderly government of men according to the rules of justice and the dictates of kindeness , it must be that participation which that law , in the soul and design of it , aptly expressed in administration , hath of that divine wisdom and goodness by which the world and all in it is governed by god , whose wayes are all mercy and truth as well as judgement and power . and these being the scope and practice of both lawes in their respective sphears to promote , though there be a variation in the method , yet the union in the end makes them happy conducements to multitudes felicities ; which considered , the chancellour is to be understood not to alledge his arguments for the common law out of design to reproach any other law , but onely to winn the prince to a love of the english lawes , upon consideration that of all others they are the most sutable to the nature of england and englishmen . and so he proceeds to the fourth case wherein the lawes vary , contained in the following chapter . chap. xliv . leges civiles impuberum tutelas proximis de eorum sanguine committunt . this is the fourth case wherein the two lawes do vary in their judgements , to wit , the tuition of orphans ; for though the lawes agree to supply the impotency of them by substitution of some persons meet to rule and order them and theirs in that necessary trust , yet the common law and the civil lawes do place their confidence of the due execution of this honest and parental charity diversly . the civil law does commit impuberum tutelas to the next of their whole bloud , saith the text. this act of the law is according to the law of nature , and the provident wisdom of nations ; for impuberty being the novicism of manhood , and that vacation wherein the first dawnings of virility are not , but persons ( males under . and females under . ) have no sign of the spring of perfection and adultness in them , the in-ability of the childe thus infirmed was ever in all times and nations made good by the addition of some person of years , integrity , and worth ; who during the child's incapacity to order himself and his affairs , should dispose them to his advantage for him . this is evident not onely in the times of the iews , but also of the heathens ; for laertius tells us aristotle appointed by his will antipater guardian of his son nicanor and of all he had , till nicanor should come of age to take care of himself . from this common observation of nations saint paul mentions this law in gal. iv . . where he tells us , the son is under tutours and governours untill the time appointed of the father ; for as the master or lord had the power of the servant or villain jure gentium , and could manumit him when he pleased : so had the father iure civili , power of the childe to dispose his estate to him when he pleased , which is the reason why 't is said , till the time appointed of the father . for these impuberes were ever alieni non sui juris , and till they were seventeen years of age or eighteen , as some say , they were by the athenians not admitted , * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as hypocration testifies , but were under tutours who answered for them upon all occasions ; so that according to this account , impuberty , which the greeks called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and which we account the whole time of childhood to years of age in males and in females , is therefore under tuterage , because till then there is not probable discretion to guide themselves in any commendable convenient measure , but apt they are to be deceived and abused through the levity of their nature , and their unexperience in the quality and temper of good and evil . and though in some children there may be monstrous pregnancy not onely of wit but also of body before this age , as was in that boy which a st. ierome mentions , and in those that b brechaeus out of hostiensis reports of ; yet for the most part , and not without somewhat wonderfull , 't is otherwise : for seneca tells us , ante pubertatem non testantur , and the lawes think adultery incredible ante decimum quartum annum . and though puberty being the inclination to the vigorous time of life , and that in which every thing flourished and appeared gay , was accounted lovely and acceptable ; in allusion whereto pubes and pubescere and pubentia are ascribed to all things of appearing perfection , as pubescentes herbae , and genae pubentes we read of in virgil , and rosae pubentes in statius , ora pubentia and virgulta pubentia foetu in claudian ; and in turnebus nothing is more frequent then to have pubes and pubertas expressed in this sense , as mpubes and mpubertas is in the contrary . all which i instance to illustrate the wisdom of nations , who did hold the infancies of men and women , excused from all care of and prudence in business ; yea almost from all punishments except in notable wickednesses , as in that case wherein the areopagi censured the lad who picked out the eyes of a young crow , which those judges thought to be so ominous of a future wickedness in him , that , they punished him severely for it , to nipp the fruit of his growing folly in the bud of its first appearance ; which well ruminated , directs to pitch well in the assignment of children to trustees or tutours . for as good or bad masters ordinarily make good or bad men , institution being a second nature , and rendring youth such as they probably become men ; ( which was the reason that socrates made grave men , when dionysius made light ones : ) so good or bad tutours and guardians produce pupills or orphans rich or poor , well or ill-bred , according as they do carefully improve or carelesly neglect the trust reposed in them : which trust that they should be engaged to minde more from the stimulation that nearness of bloud presuming dearness of affection proclives to , the text sayes the impuberum tutelas is committed , as followeth . proximis de eorum sanguine . ] the grammarians deriving proximus from propè make this person here mentioned to have the priority , to be of the nearest of the whole bloud of the pupil , for though proximus be a general word , ( in which sense 't is no more then vicinus and amicus , there being a neighbourhood and cognation of manhood , habitation , profession , friendship , in all which proximity is allowed , yea brotherhood . ) yet in the lawyer 's sense , cum transfertur ad sanguinis jura , then the proximi are such as not onely doe positivi vim habere , and are primi , proximi , & intimi , as valla writes , but also such as are soli in relatione , that is , supremi , such as have no fellows to them in nearness of bloud and perpendicularity of descent , these the law terms agnati seu cognati ] which terms are (a) gentilitatis nomina , and are not to be understood in pliny's sense , who makes agnatus to amount to abundans ; so he calls the supernumerary members of man's body , which are useless and monstrous , (b) membra animalibus agnata , and (c) pili agnati for abundant hairyness : but by agnati the lawes intend those that are of the male-bloud from the line of the father , as cognati are of the female ; and these agnati are the first in preference , for the cognati are comprehended in the agnati , but not the agnati in the cognati , since they are further off & are not inheritable , nor can have the custody of them while the agnati are in being , for agnatio does in the lawe comprehend all right of allyance : and therefore in all disabilities , whether of nonage or lack of reason by madness , the custody of the impotent kinsman was to be in the agnatus the next of his fathers bloud ; so tully and varro mention the law , and (d) budaeus tells us the proverb hence grew , carry madmen to their kindred , not that they are sure ever to be most taken care for , and most made of by them , but because the lawes of nations in preferring them , follow the rule of nature , which is , that we love our own ; which saint paul had regard to when he sayes , * never man hated his own flesh but nourished and cherished it : and that cousins of the whole bloud are one flesh and so ought to be as to the title of love and dearness cannot but be granted , which is the reason that this commitment of either children or madmen to the nearest of their bloud , is by the lawyers said to be a law that cannot be receded from , a nearness that all the water in the sea will not wash off , as we proverbially speak ; and vivian after he has glossed upon the texts of the doctors , who all agree the latitude and fixation of the right of agnation , concludes , id est jus quod habet quis , ideo quod est agnatus ut in hareditatibus & tutelis ; whereas then the chancellour sayes aguati fuerint seu cognati , he thus joyns them , because the same priviledge in this case is to the cognates as to the agnates , though the preference be to the agnates if such there be ; for what budaeus sayes of gentilitas & agnati that the ancients alwayes joyned these words together , is true of the cognati & agnati , they differ little or nothing but in priority , where they are competitours . for so great is the indulgence of the law to the agnati , that in some cases they are exempted from what the son as heir was bound to , as tholossanus who is my authority for it , makes good , and therefore as god appointed in the of numbers and the verse , that the father having no brethren , the inheritance was to be to the inheritance that was next to him of his family , who was counted residuum , a part , and the remaining part of himself , so the civil laws do in case of infancy or incomposure of minde appoint the care of the disabled person to his next kinsman , who is , as it were , sui residuum ; and this being ordo juris , ought to be accounted antiqua solennitas . et ratio hujus legis est , quia nullus tenerius , favorabiliusve alere infantem sataget , quam proximus de sanguine ejus . this is the reason of the law in custody of persons , as well as in conservation of goods . for as to goods preservation the laws civil commits the care and power to the next of kinn , because 't will be thought they will best look to them that they be not wasted whose they are to be , in case of death or misfortune ; so the person none are presumed more faithfully to love and keep then those that are of their bloud and allyance , this surely is a rational conclusion , which from the beginning was as true as true could be ; for in the simpler and less subdolous ages , as there were no vices so frequent and prodigious as now there are ; so were there no deceits of trusts occasioned by them as now there are , such being culpae vitia , non naturae , this is made good from that speech of abraham to lot , let there be no difference between me and thee , and between my herdsmen and thy herdsmen , for we are brethren . abraham as i believe referring to the law of nature , which for bad depredation on friends and neighbours , much more on brethren , who are one in bloud and solicitous fidelity each to other ; yea , i am apt to think , that cain making that reply to god , am i my brothers keeper ? had some self-accusation that overtook him and impeached him to his conscience of sinning against that law of love to and of a brother , which the strict ligament of that relation implyes . and certainly those passages in saint paul , love the brotherhood , offend not thy brother for whom christ died , cause not the weak brother to stumble , and those of saint iohn wherein he laies the law of love to the brother , do all lay load on this his obligation of tenderness to relations in the preservation of them and theirs from injury , tamen longe aliter de impuberum custodia statuunt leges angliae . nam ibidem , si haereditas quae tenetur in socagio , descendat impuberi ab aliquo agnatorum suorum , non erit impubes ille sub custòdia alic●jus agnatorum ejus , sed per ipsius cognatos , videlicet consanguineos ex parte matris , ipse regetur . because there was not as i conceive , when our chancellour wrote , any villainage in england , nor any estates held in base tenure , except copyholds of inheritance be accounted such but much of the meane states in socage , that is , the service of the plough , therefore our chancellour begins to shew how the children of such being infants or otherwise uncapable to order themselves and their estates , are by the law cared for , to wit , the lord of whom they hold such their estates , does grant over the custody of the body of the heir of the deceased socager , to his next of kinn that cannot inherit . for all lands being derived from the crown , as the great tenures called tainlands , were in the hands of the nobles and gentry , who held them in escuage or other military tenures , and attended the kings in their warrs ; so the lesser ones named reevelands were held in socage ; and the heirs of them when impuberes , that is , within fourteen years if male , or twelve if female , if they be not given by will of their father , or delivered by him in his life time to any particular person son whom the father selects to that trust , shall be in the custody of the prechcin ●my a que le heretage ne poet descendre saith littleton . for the law intending the preservation and good nurtriture of the child , commits it to them that have great interest of love , though none of estate , in case of the failer of the child , well knowing , that occasion often makes the thief , and that many an one had not been so bad as he was , had he not been trusted farther then he ought . to prevent which danger of treachery for advantage , the law concludes , that no heir shall remain in the custody of him , that there is any suspicion of his claime to the heirs estate , which they of the mothers side not being , the commitment shall be to the next of kinn on the mothers side , to whom the inheritance cannot descend . and our text adds the reason , which is the reason of all ancient books ; to commit the custody of a child to him that is next to succeed to the inheritance after him , is to commit the sheepe to the wolf who is readier to worry then cherish it , and who secures no further then he may preserve it ; from others to make it become a prey for himself . now the law in this is not more jealous then wise , nor more vigilant then rational ; for there no greater villanies have been acted in the world then those who from hopes to gain by their success have been encouraged to act them , this is the heir le ts kil him that the inheritance may be ours , was the cursed combination of the evil terre-tenants in the gospel parable , nor are any acts of truculency more transcendently horrible then those that have been acted by , or connived at by relations of bloud and kindred ; were not cain and abel brothers , yet cain who should have been his brothers keeper was his butcher ? so esau and iacob were uterine brothers , yet none more malicious against plain and downright iacob then his furly brother esau , the brethren of ioseph were iosephs sellers to strange merchants , which was intentional murder in them ; because they would have ioseph out of the way , who was more beloved of their common father then they were . and who considers that not only falsehoods in friendships but even in brother-hoods are frequent , and that it was reuben who vitiated his fathers concubines , and absalom that intruded his fathers throne , and amnon that stuprated his own sister , and zimri that slew his master , will conclude , that mens enemies are often those of their own house ; nor shall men readilyer finde greater fallacies , and more real ruines from any then from false brothers , and perfidious uncles , the confirmation of which zuinger has collected in the instances of danaus to his brother egiptus , xerxes to masistes , horatius romanus to curiatius , atila to buda , vitiosa to theofred , gondebald to childeric , perinus fregrose to his brother nicholas with many others , but above all , the enmity of zaringensis prince of carinthia to his kindred , is notable , which he dying expressed by willing that all his plate , jewels , and utensels of worth might be gathered together to provoke his kindred to fight , and stay one another about the obtaining of it , to which iosephus adds the story of ptolomy governour of iericho , who that he might reign , slew his brother-in-law with his two sons ; i could instance in many more , but none of them are more pregnant to confirm the rational and prudent severity of our law in committing the custody of heires to those that after them cannot inherit , then the examples of persidie , that first occasioned the law so to be ; for undoubtedly there were presidents of this mischief before this remedy of it was found out and prescribed , since ex malis moribus bona leges nascuntur , and the law willing to provide safety for those that cannot provide for themselves , nor ought to be sacrifices to their keepers voracity , established this prudent reserve , to prevent that effect of ambition and covetousness which ends in murther of innocence and intrusion into their rights , witness that bloudy richard the third , whom , sir thomas moor anatomizes to be versepellis , iracundus , invidus , semperque etiam ante partum pravus , this uncle , who could be light and grave , pensive and pleasant , rageful and milde , religious and prophane , as he saw his projects were best accomodated by his ambidextrallity , this monster of guardians , whose very exsecation from his mothers belly portended that somewhat he would prodigiously act in his life . this , this crafty and bloudy uncle cogs his two nephews into his custody , as one that had a parents love for them , when god knows he all the while intended their murther and his own enthronization , which , though the mother of those royal babes foresaw , and did as much as a prudent foresight , and a motherly affection could do to prevent , yet was not prevalent to effect it ; but the protector ( for so the uncle was ) first got possession of them , then slayes them , then secures all their loyal friends , from whom he dreaded trouble , and at last ascends the throne ; which nefarious fact ratifies the reason of the law , to commit the heir to none that by the miscariage of it can possibly inherit , but to the next kindred of the contrary side , who may be presumed to have affection enough to perform a trust , and not any temptation from advantage arising to him to forfeit and betray it . sed si hereditas illa non in socagio , sed teneatur per servitium militare , tunc per leges terra illius , infans ipse & baereditas ejus , non per agnatos neque per cognatos , sed per dominum feodi illius custodientur , quousque ipse fuerit aetatis viginti & unius annorum . this is added to shew , that as there are men of arts and arms in every nation , so there are tenures and services by which these men hold lands in order to peace and warr , arts and arms ; having therefore in the former clause declared , how the infants of socagers , which are men of the plough and plain , are secured during their minority , he proceeds to evidence , how the infants of the more noble tenurers , who hold by military service are provided for , and those he sayes are to be kept by the lords of the fees , of whom they hold their estates , and to whose persons they in warr , when able , are to do service . per servitium militare ] here the chancellour passes over lands held by homage ancestrel , because , though the custody is the same with those in escuage and serjeantry , which are the military services here , yet perhaps there was at the time of our chancellours writing little land held by homage ancestrel , both lords and tenants altering and changing , and the land nor continuing in the bloud of lords and tenants as by the precise nature and rule of that tenure ought . and thereupon the chancellour takes notice onely of such tenures as were in being , concerning the custody of the infants of which , is most pertinent to his purpose , and those are escuage and grandserjeantry , or knight service , this littleton defines thus . tenure per grand serjeantie est lou an home tient ses terres on tenements de nostre seigniour le roy , &c. on this , sir edward cook has largely written , and made good in himself , what in another place he writ of sir william herle , chief justice to e. . the words are , this our student shall observe that the knowledge of the law is like a deep well , out of which every man draweth according to the strength of his understanding , he that reacheth deepest , he seeth the amiable and admirable secrets of the law , thus he , which truely i think he himself made good in his commentary on the sect . of littleton , therefore to him i shall referr the reader , and to the stat. of h. . c. . . e. . . e. . c. . instit. p. . to these militaria servitia then as attendancies on the king in his wars , the text sayes , the heir of the tenants shall be committed domino feodi ] till he be years old , which is the age of livery and manhood , or full age , so . h. . c. . . h. . c. . . e. . c. , , . . e. . c. . . e. . c. . direct , and so has been the law i think till of late the court of wards , and all the priviledges and effects of it was by our now gacious sovereign taken a away , so that now all the military tenures as to marriage and relief are void ; and the custody now i suppose is to follow the course of socage tenures proximis de ecrum sanguine ] unless the ancestour shall otherwise will or deliver in his life time his heir to any person he has a great trust in ; for then i think , the lord of the fee upon petition is to grant it to that person , none being more prudent , in the presumption of reason , to judge of the fitness of a guardian for a childe , then the father of the childe . and thus wardships , which mr. s●lden sayes , were before the conquest , or at least contemporary with it , as appears by the authority he quotes against higdens supposed contrary assertion , determine , notwithstanding they were instituted at clientes perpetua patronorum profectione defenderentur , ac vicissim cos omni obsequio colerent , as oldendorpius , craig , cujacius , and all the feudists agree , and hereupon though i might take occasion to pass over this chapter , because the law and usage in it is by the late act of parliament in a great measure , if not wholly obseleted , yet i shall shortly descant on it , because somewhat not unworthy the readers entertainment may perhaps be culled from it . quis put as infantem talem . ] therefore the law committed the heir to custody , because he was infans , a state of helplessness , ab in , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , & sando , one unable to tell its own wants , or judge what is good for its self . this is not onely tempus cum fari possit , which is about the seventh year , but also by our lawes to a greater proportion , and that not in inheritances onely , but in other cases ; therefore infantes and insipientes are ranked together and opposed magnis & disertis viris , and infans in the orator is taken pro non facundo , orationis facultate destituto : consideration then being had to infancy as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a kinde of inform thing capable to take whatever art and use impresses on it and fits it to , as plotinus his words are , there was good reason that infans talis , who was ratione tenurae to do military service , should be educated in actibus bellicis ] indeed naturally in masculine children there is an inclination to manly things , which is the reason that whereas females delight in babyes , clouts , and such like toyes , boyes are pleased with drumms and daggers , swords and pikes , with tops and balls , with running and swimming , all manly exercises , yea and the horse youths mightyly delight in ; now if this proclivity be furthered by custome and education , it by the assuescency to , causes a delight in and an attainment of the skill of it to perfection . for souldiers are not expected to be neat and clear-skin'd , but robust and hardy , such as are harrassed and adusted by continual hardships ; which david not being , but seeming to goliah to be a youth tenderly and delicately to be brought up , was contemned by him : to prevent which the romans took a care to educate their puberes martially , and to place them under tutours to be disciplined accordingly , which servius and turnebus specially remember us of , so did the germans , and so did we ever ; which because the gentry were best able to instruct men in , as being men not onely gladio cincti , but gladio dediti , therefore had they the education of their young tenants , as those that could and would melius instrucre cos ] because as they were hardy , valiant , and loyal , so were their lords whom they attended in warr better defended , and brought off with honour and safety . which brings to my memory that story of the lord audley's four esquires , who attending their lord in the black prince his warrs in france , were rewarded with the . mark a year , which the black prince rewarded the lord audley with , and that with this further testimony from him , that they having right-valiantly defended him , deserved , what he had presented him , to have given them . et qui majoris potentiae & honoris astimatur . ] this is written to shew that the law judged the lord meetest to have the custody and education of his servants , who must when he is able personally attend him , because his lord best knows how to breed him , and is probable least to injure him ; for his lord having a great estate has not the temptation thereto , as in a minuter fortune is more urgent : yet this rule is not so general but there are many flawes to be found in it , and so notorious have the abuses of wardships and marriages been , that our gracious king , as i said before , has quitted them by an act of . c. . et quid utilius est infanti , qui vitam & omnia sua periculis bellicis exponet , quam in militia , arcubusque bellicis imbui . 't is true there is nothing more profitable and efficacious , for so the learned explain and joyn them , then for any childe to be trained up in his youth to that which in manhood he must practise ; for that being facile and habitual to him , causes with his delight , an acquirement of excellency in it . hence proceeds that which seneca sayes of the epiraeans , whose discipline made them virtuous by a pregastation and fore-contemplation of the pleasure of it ; for when they intend their mindes on warr , they do , as cleanthes sayes , fam●y victory in all the angustness of it coming towards them , and discard fear , as beneath the aspiration of their courage and constancy , and sedate and exterminate those pests of youth ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. ) vice , unsetledness , wildeness , which are in the a philosophers opinion , the marrs and cancres of all their hoped for improvement ; for , since youth is the time of desire , and is spent most an end in travel and observation , what is then treasured up , grows dear and natural to men ; for the philosopher observes well , that experience makes wisdom , which youth wanting ( for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as his words are ) use teaching perfection , and use being learned by time to accustome a childe to manly things , is the onely way to make him manly when a man. and this , had it been more the method of those to whom wards were granted , that they had done as they ought , ( brought up young wards to heroique and brave sports , and feats of arms , by which their mindes employed , would have been more fixed on manly things , and more averse to vice and effeminacies , which are the hell of youth , and disarray them of all hopes of future perfection ) there would never have been such a party in the nation , and those of the gentry , against wardships , but still they might have continued ; but when favourites covered them , not to breed them up bravely and martially , and to make them as arminius in paterculus , noble in minde , valiant in person , quick in action , prompt in design , but to get their estates , and marry their persons to their disparagement , or at least contrary to their fancies and delights , what could be more the abuse of a brave institution then this was ? for though i know there is nothing but is abusable , and if abuses in things should alwayes occasion the amotion of them , nothing , though never so good , would continue , as gassendus has learnedly observed in the life of epicurus : yet i cannot but confess , abuse in this , which so often ruined noble youth both fortunarily and personally , is upon occasion just enough punished by determination . et revera non minime erit regno accommodum , ut incolae cjus fi●t in armis experti . this is not to be denyed , the common lawes enjoyn this : for in the confessor's lawes 't is thus said , all free men ought to have arms according to their condition and tenure , and to keep them alwayes in kelter and ready to defend their king and his kingdom at the service of the lords , to whom they are to attend in the warrs , when the king shall summon them . and so in the lawes of the conquerour 't is said , we enact and establish , that every earl , baron , knight , esquire , and all other freemen of our kingdom , have and keep in readyness their horses and arms , as becomes their quality and degree ; and that they be alwayes ready to serve us whenever our necessities shall put us upon commanding their assistance and service : so have later statutes declared and enjoyned , viz. e. . . e. . c. . e. . c. . and the custom of the nation to train the free-holders and them to discipline , declares it , that it has ever been held accommodum regno , that the incolae regni should be in armis experti ] and thus they ever have been , and ever i hope will be to defend their king and his lawes , which they will boldlyest and best doe , when they do not fight at random and in confusion , but according to method ; for that is true philosophy which our text here quotes , quilibet facit andacter , quod se scire ipse non diffidit , which though some practices confure , yet the rule in the main abides , and so the chancellour concludes this chapter . chap. xlv . princeps ] immo cancellarie legem banc , &c. here the chancellour obtains from the personated prince , a concession in behalf of the laws of england , that they do wisely provide for the care and custody of orphans and their fortunes , and especially of that nobilium progenies whom he terms so provided for , that de facili degenerari non potest . now though the prime and efficacious prevention of degeneration , is the merciful act of omnipotence , which onely can put bounds to natures insolence , and which alone can shore up its declension from its central rectitude yet wise and wary lawes are great helps and advantages thereto , not onely as they discover the turpitudes of straying from the good old way , but as they punish such strayings with disfavour & terrour . therefore the law & custome of england , looks upon the nobiliam progenies , as the young nobility , not only in the sense seneca writes of , a brave minde becomes every one , and by this we are all noble , the minde makes the nobleman , by which a virtuous soul will be great in meanness , and free in restraint and bondage ; but as they are successours of the peerage of england , and so presumed to be ad virturem benè à natura compositi . these that have from the examples of their ancestours , and the rewards thereof , such excitations , cannot but be roused up to great actions , at least , non facile degeneraripossunt ; for degeneration is à genere decedere , to become mungrel and rascal ; and as there is no value to be made of excrements and deformity , according to that rule of gajus , a so is there no honour due upon any account to degeneration quâ such , and therefore , as the countrey-man is said to degenerate , who doth deponere rastra ut sequetur castra , and the childe to degenerate , when according to servius b he doth not appear like to , and worthy of his parents so is the nobleman said to degenerate , when he does not take in noble principles , and evidence them in noble practices . hence is it that all defects from notable originals proposed , after which generous copies should be taken , are termed degenerations . statins tells us of degener alta virtutis patrum , and tacitus of insidiae degeneres , and pliny of degener humani ritus , and degenerare in feritatem , and tully of degenerare à gravitate paterna , à perenni constitutaque virtute morum , à secta vel doctore aliquo degenerare . all which confirm , that where so notable helps to virtue are , to accept and improve them is non facile degenerari potest nobilium progenies . ] sed probitate potius , strenuitate , & morum honestate antecessores suos ipsa transcendet , of probity , see the notes on the two and twentieth chapter , to which i add * ficinus his note , that probity consists in likeness to god the onely rule of excellency , and in conforming the life to that intellect that he has endowed man with , as the conduct of him in all his worthy and wise actions , which god onely wil reward and accept ; for this , hee , that is , one simple beeing , looks upon , as a sincere act of the intellect , leading to a plain and uncompounded action of virtue and integrity , which being delightful to god , to whose pure nature it is a present , he rewards with approbation and credit with men , in regard of which 't is termed probity ] which is such a tincture of the whole man with goodness , that it will stirt a man up to doe , as probus is reported to doe , excellent things with pleasure and delight , as he is said to build cities and dispose of the empire wisely , that little time be reigned , which was but years , and therefore to be favoured of the gods , whom though they suffered to be afflicted , yet they so far succoured that they made all his traytors miserable . so that this probity , is that ballast and temper of the minde , which keeps a man from evil , by a propitiousness of mediocrity , which it insinuates , and thereby guards from all engagement in , or pursuit of unreasonable and licentious things , which seneca calls a sempiternal bappiness , and a transition of life without any snarle or discomposure , so that a man knows not what the black & passionate misery of nature and life means . o 't is a rare attainment to be thus adorn'd , the merchandise of this virtue is better then the merchandise of gold ; for it makes us active non malitiae , sed virtutis impulsu & imperio , and swayes us to follow what is good purely for that goods sake which is an ample theatre to it self , and a sufficient reward to its practicer . which , though debauched mindes , as messalina's was , think folly and madness of pusillity of spirit ; yet will be honourably monumental to its patrons and clients , when their turpitude will render them infamous . therefore numerianus though but a scholemaster by profession , yet sent by severus , general into france , deserved , and obtained great honour from severus ; for he did not onely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sending the emperour great sums of money , but also did like a just and a worthy servant , impart honest and prudent counsel to him , and when his master would have given him ample honours , he refused them , and betook himself to a mean country domicil , and smal pittance , which severus day by day allowed him . here 's probity tuitive of innocence , which will make a man not only not covet great things for himself with the injury of others , but perform all his actions in aspero & probo as i may so say , that is , spotlesly and without blemish , pay the age and time a man lives in , the debt of his parts and talents which god has lent him to serve his glory and their good with , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in aspers , not in reviles , but in currant and beautious coyn , not onely in that which is intrinsiquely valuable , but that also which is outwardly grateful , probato opere & approbato , that is , recte & probe consummatum se praebere , as budaeus appositely out of tully . so that by probitate , our text means , a rectitude of inclination , disposing a man to do every thing squarely and above-board as if all the eyes of men and angels were upon him . strenuitate ] this points out to that specifique endowment which god gives virtue , boldness and undauntedness in pursuit of that which is good , and this seemes to be the native honour of every thing that 's english , that it is not discouraged by repulses , but persues its end , aut vincere aut mori . for , as our horses will not faint at a tug , but draw many and many repeated pulls at a living tree , which they cannot stir , and loose their eyes rather then discover coole mettle ; and our dogs are so bold and braving , that they will fasten upon a lyon once and again , and never be drawn of but by violence , nor yet easily by that , but will come on a fresh , as often as they are let loose , witness that dog of the lord buckhursts , who , before the french king in one day , alone , without any help , first pulled down a huge bear , then a pard , and last of all a lyon : so our souldiers are no viri cervini , but strenuous and daring beyond any others . fortissims viri & milites strenuissimi as plinies words are , not onely strenuous , as strenuus is accompanied with acer and dirus , but as it is explayned by cita and celeris , as they are resolved , and dispute not of the danger , but conclude the action , be the hazard what it will , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . prompt to all performancies , as the historian sayes of some , when he opposes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , vigorous activeness , to supine lazyness . this strenuity then is the proof of souldiers , and as the lawes civil gives to fruitful matrons more priviledges , both alive and dead , then they did to barren ones ( cujus honoratis ossa venuntur equis ) so did they attribute more to strenuous souldiers then to spiritless ones ; for though i know strenuity as an influence of the starrs , which are boasted by astrologers to convey to men fortitude of minde and herculcan efficacy , be but fabulous and nugatory , i mean , as to the necessary influence of them , which picus mirandula makes good against them : yet do i confess , that strenuity ( arising from a natural vigour , alloyed and debased by no guilt or vice ) is a very great virtue in a souldier . and this our text sayes the breeding of young heirs under their lords , the nobles , did arrive them at . honestate morum ] by this i think the chancellour intends fair condition and civil deportment , that kindeness and truth of conversation which excludes all elation and falsehood , and abhorrs mixtures of fraud and levity with that which seems amiable and worthy in men . this plato is so precise in , that though he expects not men should be irreprebensible , yet he would have them that would be accounted honest to do no evil premediately , and for the once as we say . this honesty the philosopher calls , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the good of justice , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the victory and honour of all good men and good things , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the utmost procedure of virtue , beyond which nothing by man can be acted here on earth . this pleonasm to the honour of honesty , the moralist gives the reason of , 't is no mortal principle that moves to honesty of manners , but a consideration of god above , and conscience within and men without , all supervisors or judges of our behaviours . upon this ground the ancients mate the most noble virtues and rewards with honest as , tully joyns dignitas with honestas , and writes of honestatem & decus conservare , and honestatibus partis & omni dignitate privare ; thus honest a dicta , nonestus dies , nonesta virgo , nonesta forma , nenesto loco natus , nonesta arma , nonesti exitus , nomen nonestum , mors nonesta , are so frequent to express the best of excellencies by , that there is no doubt but our chancellour by morum nonestate ] means the best and most unspotted accomplishments of generousness , blamelessness of life , and exemplarity of conversation , honest as turpitudini vitae contraria , as tully and quintilian often mention them . this saint paul calls walking circumspectly and inoffensively , and epictetus , a freedom and friendship with god , which ( saith he ) god expects i should walk worthy of ; for he has not given me in charge adorning my body , or getting a great estate , or an honourable fame , but he has commanded me upon the penalty of his disfavour and his abhorrence and rejection of me , to be sober and solid , to live orderly and conform to the moral dictates of reason , avoiding all turpitude as the disluster of his image in me . indeed , next to that we christians call grace , this honesty of manners is to be valued and endeavoured ; for it not onely keeps from every extreme , but carryes on and continues in such a direct line of mediocrity , as is glorious to behold and imitate : and therefore is so much the more to be pressed on great men , because they are so apt to love and practise licentiousness , and are by it so influential to mislead the meaner sort , that without it prevail over them , all good virtue and order is like to be discarded the world. for my part , i think sobriety and civility of manners and garb the great ornament of nobility and gentry , and conclude , as apollonius tyanaeus did of sparta , they doe , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. extend their glory to the heavens by it , and in the failer of it , eclipse and drownd them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not onely in the sea but on the land. the consideration of which made pliny , that grave authour , brand the aedility of marcus scaurus , with mischief to the common-wealth , because it introduced new toyes into it , to the dishonour and abolition of the old fashions and manners . this evil to avoid , probity , strenuity , and honesty of manners will instruct , while it preferrs to men of bloud and honour self-denyal of vicious appetites , courage in virtuous undertakings , and exactness and veracity in demeanours and dealings . this is to become a man without welt or gard , the same he seems to be , and this is the noblest end of generous education . and this our chancellour sayes young lords and gentlemen are probabler to have abroad then at home , and in the lord's houses rather then in their father's house , because 't is altior nobiliorque curia , &c. antecessores suos ipsa transcendet , dum in altiori , nobiliorique curia quam in domo parentum illa sit imbuta , &c. the sense of these words is , that as every youth is presumed to excell as his opportunities to excellency are more and meeter to that end , so every age and succession of education gives being to somewhat of additional accomplishment which precedent times and breedings did not ; for as the world grows older in time , so the men of it grow quicker in invention and more dextrous in action , and thence facilitate more and more that , which but for their discoveries , would be difficult and immethodique . this is the sense , as i conceive , of this clause , upon the ground-work of which the chancellour raises a lofty rooff of prospect upon the houses of noblemen in his time , which as they were curiae for the multitudes of frequenters to them , so were nobiles altioresque by the great entertainments both for activity , fashion , and feasting in them beyond what was in the houses of the gentry ; for of old , before and in hen. . time , the state of the baronage was great , and they were attended not with few but many , not airy and pigmy , but sad and proper servants , well-clad , well-manur'd , well-fortun'd , well-treated . the majesty of england was seen in every appearance of nobility , in the garb , in the train , in the table , in the solemnities , in the officers , in the recreations of their houses , all arts , arms , exercises , pleasures being there so ordered , that the young fry of both sexes , thither sent and there accepted to be bred , came away madepersons as to all their after-lustre , and owed all the after-eminency of their lives to the acquirements of those houses , which the text calls , nobiliores altioresque curiae then their fathers houses were . but the times being altered and the methods of houses transformed , the gentry's children now find their fathers houses their best and safest residence , and from it obtain the best and onely preferment . principes quoque regni sub hac lege regulati , similiter & domini alii à rege immediatè tenentes , non possunt de levi in ruditatem lasciviamque labi . as the mean lords hold of the chief lord , so the chief of their chief the king ; and as the heirs of these were during their impuberty , educated in the houses of their lords , and thereby taught to love and serve them according to the condition of their tenures and their native degree : so the noble youth , principes regni , the young lords and barons , during their minority , were trained up in the king's court , as the properest schole of virtue , prowess , and heroique demeanour ; for as soft rayment is for princes courts , so are all noble qualities best becoming it , and best learned from the virtue and variety of the displayes of them in it . for suppose a court ( such as the solomon of kings , the first of his name over england , sets it forth ) lustrous in a prince and chief , who doth , as he adviseth , remember , that as in dignity he hath erected you above others , so ought ye in thankfulness towards him go as farr beyond all others . a moate in anothers tye is a beam into yours , a blemish in another is a leprous bile into you , and a venial sin ( as the papists call it ) in another is a great crime into you , suppose a prince such therein as to use his words , let your own life be a law-book and a mirrour to your people , that there in they may read the practice of their own lawes , and therein they may see by your image what life they may lead , in the government of your court and followers in all godlyness and virtue , in having your own minde decked so with all virtuous qualities , that therewith you may worthily rule your people . and a little after , as to the government of your court and followers , king david sets down the best precepts that any wise and christian king can practise in that point ; for as ye ought to have a great care for the ruling well of all your subjects , so ought you to have a double care for the ruling well of your own servants : chuse ( for your service ) those within age that are come of a good and virtuous kinn , such as are come of a true and honest race , and have not had the house , whereof they are descended , infected with falshood and treason . delight to be served with men of the noblest bloud that may be had ; for besides that their service shall breed you great good will and least envy , contrary to that of start-ups , ye shall often finde virtue follow noble races . and again , make your court and company to be a patern of godlyness and all honest virtues to all the rest of the people , be a dayly watchman over your servants that they obey your lawes precisely ; for how can your lawes be kept in the country , if they be broken at your car , punishing the breach thereof in a courtier more severely thin in the person of any other of your subjects , and above all , suffer none of them ( by abusing their credit with you ) to oppress or wrong any of your subjects , &c. and shortly , maintain peace in your court , banish envy , cherish modesty , banish debauched insolence , foster humility and repress pride ; setting down such a comely and honourable order in all points of your service , that when strangers shall visit your court , they may , with the queen of sheba , admire your wisdom in the glory of your house and comely order amongst your servants . i say , imagine a prince's court , not like that cornelius agrippa mentions to his friend in those sarcastique and prophane words , an non in inferno es , amice , qui es in aula ubi daemonum habitatio , nor like that * petrus blesensis writes of ; but thus exemplary , thus refert with rare persons and religious practices , as this king proposed his sons court to be when he should come to it ; conclude this not an vtopia , or a display of kingly wit and politique sagacity , but what really and truely his wisdom found out to be the interest of kings to make , and the religion of kings to keep their courts such . what ( when a court is such and so ordered ) can be a readier and more notable means to ingenerate and preserve virtue in youth then education there , where they shall not take in good and grave principles as they do , who do vappambibere è lagenis , but ingurgitate them freely as they do , who do e dolio haurire , who are ( as we say ) at the well-head , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , encircled with every thing that is magnificent . i say , in a court that is thus raryfied and sublimated , ( that by the elixar of imperial prudence is turned from tinn and course metal into pure gold , as frederic the third , king of denmark , is reported to have made his court ) no miscarriage almost because no degeneration can be in lasciviam ruditatemve de levi ] for the sobriety of such a court keeps youth from luxury , and the state and fashion of it from rudeness . for though athens were a place wherein there was so many artists , that no one artist was valued , which made him in the tragedy cry out , that there was no reward is her , nor any art flourished there : yet this domus regia ] in the text , called in other names , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , has rewards and encouragements for every conspicuity in its courtiers , and they that compare any places to them , where nobly ( and as of old ) they were composed , does rosam cum anemona conferre . for as princes have no fellows in their dominions , so have their courts no fellows in the priviledge and magnificence of them ; for besides that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is given them abroad , our lawes make them exempt from ordinary jurisdiction , and offences done in them contrary to the sacredness of them highly punishable . if a man fight in the king's court , the king being then and there present , he shall lose his right hand , and be for ever , during his life , imprisoned , and pay fine and ransome at the king's pleasure , which was like to have been the doom of sir edmund knevet in anno , but that the king remitted it upon his humble submission and entreaty ; for these residencies of the king are accounted honours by the statute of h. . c. . and it being against the honour of the sovereign of the law to have his lawes violated in his presence , the penalty of such insolence is very severe : and those that make bold to brave and dishonour the order and sacredness of them , are wellcomed with a punishment remarkable . fulbertus reads those words of psal. xxviii . adorate dominum in atrio sancto , by colite cum in conscientia vestra mundissima , and he gives the reason , ipsa est enim aula regalis & habitatio spiritus sancti . and therefore all persons that approach the king's court , as they are to be trimly habited , and to the elegantest proportion of their degree ; so ought they there to demean themselves soberly and with civility , since princes courts are paradises of pleasure and state , as might at large ( if need were ) be made good out of great and grave authours : which is the reason the chancellour here in the text sayes , opulentiam , magnitudinemque illus collandare . dum in ea gymnasium supremum sit nobilitatis ] the court of the king according to our text , is not onely the sphear of riches and lustre , but the academy of activity and manliness gymnasium nobilitatis , sayes our master . now gymnasium was the place where the actors of old , stripped themselves naked , that they might shew themselves active , without hinderance . (a) seneca termes pyrrhus ( the institutour of these ) maximum praeceptorem certaminis gymnici , and the caution he chiefly gave his youngsters was , that they should not be passionate and cholerick but do as wise courtiers ought , accipere injurias & referre gratias . lipsius his commentator tells us not what pyrrhus this was , but pyrrhus probably it was the epyraean king that brought in dancing , called afterwards pyrrhica saltatio . these corporal exercises of running , vaulting , justing , wrestling , tilting , and torneaments , though under other names , together with the liberal learned sciences , were alwayes judged so proper for courts , that nothing was judged more peculiar to them then they ; because they took youth off from effeminacy , and intended them on exp●essions of manliness . budaeus asserts lycaon the arcadian , to have delivered them to the greeks , who had their lycaeum , academia , ●ynosarges , to further the education of youth , and in all these , erudited them according to 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or laws of instituting youth by their 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , who were purposely designed to attend them . and how diligent the young frie there were , that they might be notable gamesters , and renowned for their victories . plautus mindes us in those words , ante solem exorientem , &c. nisi in palaestram v●neras , if one came not into the pit before sun-rise , he was sorely punished : there by running , striving , activity of spear , quaiting or throwing up in the ayre , fighting at cuffs , playing at ball , dancing , they exercised themselves rather then with whoring and kissing , thus hee . and surely had not the wisdom of humane nature found it necessary to divert youth from sinful pleasures which engage the minde , they would never have done such honour to these corporal exercises , and the excellers in them as they have done ; nor would historians have taken the paines to write of their ancients athletae , and palaestritae , their cursores in stadio , their saltati●nes & pugilum certamina , their hyplomachi gladiatores , their equestres concursus & pugnae , as caelins rhodiginus , plato , sabellicus , athenaeus , pausanias , alexander ab alexandro , plutarch , scaliger , diodorus siculus , faber , have done ; and therefore i conclude that they are necessary and advantageous to draw out and keep up the manhood of the minde , and to enable men to serve their countryes , with their bodies against their enemies , and justifie the courts of princes to have exercises of activity . not onely the pyrrhica saltatio , which , though on foot was somewhat like tilting , wherein the engagers were armed cap-a-pee , and the sicinnis , which was satyrick , wherein the dancers clad as satyrs , by the variety and agility of their motions , did provoke by the rarenesse of their singing , delight : but also that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or civil exercise of dancing , which plaeto calls very honest and harmeless dancing , and we may call french and countrey dancing , or dancing in masks , which truely is in its self i suppose so harmeless a repast , as nothing can be more harmeless , ( evil be to them that evil think the jollity no doubt is lawful , if it be used lawfully ) and much ( in things not mala per se ) is allowable to the courts of princes , which is not fit to be practised elsewhere , which if some would rightly consider , they would not be so imprudently rigid in their censures , as they , more to their own disgrace then to others disadvantage , impudently are . as then to the suprema gymnasia of our text , and the schola quoque strenuitatis , probitatis & moram ] which the kings court is called , i can write nothing punctually as concerning the teaching of martial seats and activities therein ; but near and in the verge of the kings court , all these exercises have been and yet are taught , though now the young lords more addicted to travaile then heretofore , learn them abroad , whether they go very young , and so these places and masters are not so much taken notice of as then they were . but that practices of activity have been ever here performed , is plain in our stories , in . & . e. . these were performed at windsor , in . & . r. . the king kept his court at the bishop of london's house in london , and there were justs in smithfield , and after , dancing and revelling after the court manner in henry the . time at the tower , and at greenwich , so in henry the . time , at sheen for a moneth together , within and without the kings pallace : so at westminster . h. , . h. . at greenwich , and . of the same king , there before charles the fifth , and ever since almost , though of late years tilting has been disused , yet still other exercises are continued ; so that when our text sayes , it is scholà strenuitatis , probitatis & morum , it intends such a collection of men of arts and arms , of valour and courtyery in it , that every young nobleman that thereunto comes , may ( if he have ambition to appear , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a prognate of jupiter's , be excellently adorned with all complements of honour ) and not be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not one that has no evidence of his nobility , but his bare descent ; for , as it is not bulk that declares the man , but spirit and valour , so is it not name and equipage that publishes a nobleman , but a brave minde and a brave courage , a stanch virtue , and a not to be impeached fidelity : these are verae nobilitatis insignia , and therefore are by our chancellour annumerated as those things which doe honour and illustrate a kingdom . quibus honoratur regnum & floret ] this is a great truth which all experience subscribes to , that strenuity of action , probity in minde , and honesty of manners is the chief glory of any kingdom . this i think , moses according to our texts sense intimated that deut. . where he charges israel to keep all his enactions , which god , who had so highly deserved of them , had enjoyned them observance of ; for this sayes he , is your wisdome and your understanding in the sight of the nations , which shall hear all these statutes , & say , surely this great nation is a wise and understanding people . for virtue being the corner stone of governments , and the firmament of its lustre , no honour is to be had or kept without her , nor is the truely any where , but where she shews her self in the fruits of courage , abstinence from turpitude , and zeal for propagation or order , which three are the leures of greatness to any people ; for valour gaines ground , and makes the purchase , & prudence orders acquisitions by equity of administration , whereby it cements mindes so together , that they as one man joyn in propagation of common interest , raising by the art of loyalty , such a rampire and defence about them , as no art or assault of their enemies shall subvert , and darts such rayes of conviction on beholders , that they cannot but admire and desire to be under the rooffe of such politique artificers , as build both stately and securely , yea , and makes the way open for merit to be rewarded , when servility and abjectness of condition makes unchearful subjects , and such as , though they are bound 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , with golden fetters ; yet would think themselves more happy to be free : not as to dependance on and loyalty to their prince ( for that is the best charter and evidence for orderly political freedome ) but as to that vassalage which is the effect of absolute and unlimited will , which being no method of our princes to their subjects , produces in the subjects , thus paternally treated , strenuity , probity and honesty of manners , to such a degree as makes the kingdome in which they are , honorari & florere , flourish in its self , and be honoured abroad by others ; for there is nothing acquires such benediction of god , on men studious to thrive by just and good endeavours , as justice , honesty , and persistence in their well and judiciously chosen way , which as they are first commended to the affections and made connatural by good breeding and right principling in youth , so are often visible in those enlargements , which manhood in the ripe and prudent experience of it , occasions men to evidence , and by it to be renowned . for since wisdome makes a mans face to shine , and education is the stirrup to help up into that faddle , where , well feated , we sit notwithstanding all the menaces of dismount , that the various and cross accidents of life suggest to us , it is the readiest course to attain that , by such company and conversation , as are greatest masters of it ; and this being to be observed in the houses of lords for young gentlemen , and the court of the king for young lords , as therein to breed them was the custome in our chancellours time , the conclusion of our text is as in all other chapters , that this method of england in this as in other parts of it , was best for england , while it was the use so to doe . and what the difuse or other appointment of their custody and education will better to after ages produce , then that did to our times let after ages tell when they know , wee that know but in part , can but prophecy in part . to god to whom the event of all things is known , and by whom over-ruled i refer it , and so i conclude this chapter . chap. xlvi . tunc cancellarius . sunt & alii casus nonnulli in quibus differunt leges audictae , &c. to the prementioned cases , wher●in the two lawes in the manner of their administration differ , our chancellour subjoyns that of manifest theft and of ingratefull libertines ; in both which cases the civil and common lawes give different judgements . leges civiles judicant furtum manifestum per redditionem quadrupli . furtum ] the lawyers derive from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , id est , auferendo contrectandoque ; hence they define it , contrectatio rei alienae mobilis & corporalis , frandulenta , invito domino , gratiâ lucrandi rem ipsam vel usum ejus vel possessionem . it must be contrectatio , for the animus intercipiendi is nothing as to men , if contrectatio be not ; so is the gloss , sine contrectatione furtum fieri non potest , and rei alienae ; for in propria non committitur furtum . therefore the matter of the theft must be the right of another , and mobilis & corporalis it must be , quia hae , capi , ferri & moveri possent ; for although aulus gellius tells us sabinus delivered it , non hominum tantum , neque rerum moventium quae auferrioccultè & surripi possunt , sed fundi quoque & edium fieri furtum : yet the more currant judgement is , that thefts must be de re mobili & corporali , and then it must be fraudulenta , for animus fraudendi maxime inspicitur , & non sit furtum sine affectu furandi , as also it must be invito domino , not onely when first taken , but when it is kept longer then his time prefixed ; so also if it be taken or kept with his privity and consent , it is not theft , but a theft it is if otherwise , because it 's done animo lucrandi rem ipsam , vel usum ejus , vel possessionem , furtum facit , scienter accipiens indebitum ; and no man that takes what is not his own , but knows it to be anothers , and takes and keeps it to the injury of the right owner , but is a thief , and this makes the theft : for theft is not computed inter casus fortuitos , but it supposes a premeditation and an ill minde to the owner of it , which they call not onely damnum cum corruptione rei , but furtum cum amotione rei . now these furta were either manifesta , such as are in the very fact , in which the thief is termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , hoc est , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , with the thing stoln about him , or he that is apprehended within the bounds of the place whence it was stoln ; or else not manifest ones , that is , such as though they are proved , yet they came cleaverly off , and went smoothly away with , as we use to say : thus tully expresses manifestum furtum by clarum & apertum , and he calls it , manifesto comprehensum & deprehensum facinus . hence because manifestation is the act of light , authors express every thing of palpability and obviousness by manifestum ; manifestus amator , libido manifesta , pietas manifesta , signa manifesta , manifesta caedes , &c. these thefts were ( sayes our text ) differently punished , in old time , amongst the nations , i suppose with death in the party stealing , and with the bondage of his companions , to which the brethren of ioseph had probably an eye when they willingly proposed to the lord of egypt , that with whomsoever of them the money for the corn be found , both let him dye , and we also will be my lords bond-men . i know there are learned men that make this onely a bold offer of innocence , which knowing it self free , condescends to the hardest terms to vindicate it self ; and hereupon they rank it amongst the follies and vapours of these sons of iacob , who , as israelites , would seem to be more abstemious , and not so temptable as other men , but saving their greater judgements i humbly conceive it to have respect to the custome of the nations , perhaps egypt , thus to punish theft , which punishment , though they were strangers they willingly condescend to , nor was it strange they should , who knew theft was a notable sin against the moral law , and that justice which god has implanted in every man , and when it was so manifest as their's was , could not but expect the punishment of manifest theft , which was death , especially , if in the night the thief were taken in the house ; so plato appointed , and the law of the twelve tables , and so the theft per lancem & licium , ( like our night-robbers , who come in vizards and with cords to binde men , while they ransack the house , ) was punished as manifest theft ; now , because theft is often in smal things , in which , acursius thinkes , it ought to be prosequuted , modice puniendo , and not capitaliter ; therefore the law a appoints this fourfold restitution of the thing stolne . indeed god himself appointed restitution in case of theft , so in the of exodus and the first verse , five oxen are to be restored for one ox stolne , and four sheep for a sheep ; and the principal with a fifth part of the value in a trespass , levit. . . &c. . v. . numb . , but in cases of small things stolne , manifest theft was to have a four-fold restitution , so king david determined against himself , that vriah's lamb taken from him by violence , should be restored four-fold , sam. . , which was according to the law in exodus ; answerable to this was zacheus his protestation , if i have taken from any man by forged cavillation , i restore him four-fold . this law continued amongst the iewes till herods time , when iosephus tells us , he altered it , and appointed the thief absolutely to be sold. grotius sayes , from this law of exod , c. the greek and roman law took their prescripts ; and ; that if a thief before he had made away the matter of his theft did before arraignment repent of it , and restore it entire , and a fifth part more with it , he was absolved according to the text of numb . . but if the thing stolne were alienated , then he was to restore four-fold , that is , to give him four times more satisfaction then the injury done him comes to . to this quadruple , i think our lord alludes in the luke . good measure shall men return into your bosome , pressed down , shaken together , and running over ; four degrees of measure alluding to the four-fold restitution that the directed manifest theft was to have . et furtum non manifestum per dupli compensationem expiari ] non manifestum est quod manifestum non est , say the lawyers , that is where the thing does not prove it self , but needs some other proofs ; for this being capable of evasion and excuse or something in mitigation , is allowed but a two-fold compensation . thus i finde it among the lawes of king alfred , and so it was ever among the ancients , aristotle gives the law 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. if any one stole out of the baths or theatre , or the forum , he was to be put to death , but if from a private house , he was to restore onely twice the value , so also plato , and agellius confirme the law to be . sed leges angliae , neutrum facinorum illorum mitius quam committentis morte puniri permittunt , dummodo ablati valor duodecim denariorum valorem excedat . this i suppose was the law before the conquest , that felonies exceding the value of . pence should be punished with death , for this is grand larceny oustre le value de pence , sayes the . e. . c. . answerable hereto is fleta , who adds , that pro modicis delictis petty felonies , pissories , loss of the ears , and brandings with a red hot iron were invente● ; for though every little may make a mickle , or in fleta's words , many smal larcenyes may make a great and capital one : yet for one single theft if not exceeding the value of . pence no death of man can be . sir edward cook gives us much learning concerning this , so does master stamford , which i have enlarged upon in the notes on the twenty seventh chapter ; for since the law of england , is a law of justice , and justice requires defence of property and order , which theft violating , and theeves growing so loose , that they make a mock of sin , and delight themselves tabulis lusoriis , with which they trifle out the day till the night come , wherein they act their villany , and bulas like , are so proteus'd , that they by their deluding ingenuity , goe invisibly , and care not what mischief they engage in , i say , this , so pestiferous to the property and possession of rightful owners , the law is most severe against , whether it be manifest theft , that is , the thief taken in the fact , or not manifest , that is , proved by witnesses against the accused person , if it doe exceed pence 't is death . for though many offences are clergyable , yet not felonies of theft ; for where people are warlike in nature , and given to theft , not to punish it capitally , is to favour it more then in relation to order ought , which the saxons our ancestours considering , were so rigid against theft , that to be even accused of it was decreed capital , and that by hanging the thief , which a vives sayes , the emperour frederick the third first exampled christendome to . nor is the law of england to be accounted cruel herein , for that it does but what the wisdome of legislation suggests necessary to obviate national impieties , and to secure the order of national justice , which , other nations as well as ours , have in the very case of theft , so also doomed . for though great and victorious thieves , that with the emperour constantine the third , ransack rome of all its bravery more in seven dayes , then the barbarous nations had , or could doe in years , goe off with the preyes of stately capitols , renowned arsenals , well arrayed warderobes , vast treasuries , and are flattered , when so they doe , by the oratorious panegyricks of adulating admirers ; yet , the thieves that are masterable by justice , are fatally accounted with : so among the indians , phrygians , scythians , so b draco punished theft , and for it c fabius adjudged his son to die , so did sertorius put to the sword a whole plundering cohort , and d mark antony put to death the thief that stripped brutus his body , and pescentius niger , a souldier but for taking away a henn from a woman , and gave her ten henns for it . sundry other examples of severe inflictions on theft , iohannes magnus , ludovicus vives , iovius , fulgosus , and others , furnish us with , all which shew , that theft is an odious sin , and the law of england in punishing it with death , doth but what other wise law-makers have in the like kinde done . for since perhaps , our nation has ever been addicted to theft , and as amongst the isauriaus , so with us , lawes against theft , as the reigning sin ought to be tart and fatal , the lawes so made and executed , are worthily magnifyed ; for as much as theft does not onely rob the living , but even the dead , not of their sheetes of worth and wit , in which , if their mortal lives had their due , they would be in a sort immortalized ( as thestorides did homer's verses , whilest hee bribed homer to be silent in his arrogation of them to be his ; and chrysippus , when from eurypides he stole those notions that apollodorus sayes he got his name by ; and menander , whom eusebius and porphyrius charge to be the thief of the ancient poets ; and flavius the libertine of appius claudius , by purloining his masters works , insinuated into the people so farr by it , that they made him an aedile and tribune . ) i say , these and others by theft do not onely rob the dead of their sheets of learning , but even of their winding-sheets , as that miscreant a haynes did ( furto inaudito ) in the of king iames : good reason is there that such villany should doom to death the actors of it , dummodo ablati valor duodecim denariorum valorem excedat . item libertinum ingratum leges civiles in pristinam redigunt servitutem ; sed leges angliae semel manumissum , semper liberum judicant , gratum vel ingratum . this is the last instance wherein the lawes do vary in their sentence , that of an ingrate libertine . now a libertine was such an one as after just service was manumitted , so gajus defines him : marcianus makes libertines to be one of the degrees of free-men , as ingenuous men are the other . three sorts of libertines the lawes of old mention , as there were three degrees of liberty or manumission : . the plena libertas , which was in their being enfranchised citizens of rome . . latine libertines , ex lege iunia norbana , which after was taken away . . the dedititia libertas , which was ex lege aelia sentia , which also was taken away : which way soever then they became libertines , the law looked upon ingratitude in them as monstrous and pernicious . this should seem to be one of the lawes of the twelve tables , for schottus writing on that law , that every man might dispose of his own , mentions this exception , nisi sit nequam & prodigus , & decoctor h●res est futurus , aut parentibus non obediens , aut denique ingratus ; cum & servus manumissus ob ingrati crimen in servitutem retrahatur , so he. sutable to this are all the instances of punishment on ingratitude ; for ingratitude being not onely a rebellion , and so as the sin of witchcraft , but also an abuse of love and freedom , is therefore so vehemently persecuted , because it is an unnaturality inconsistent with reason and moral justice , which caused the athenians to enact that memorable law , wherein the party , who did enfranchise any one who was unworthy that favour , did supersede his enlargement , and call him to his bondage as the punishment of abused goodness . for of all the vices none more unpardonable then ingratitude , since it 's the womb of all enormity , god himself is offended with it , and therefore reproaches israels immemory of his mercies , deut. xxxii . . ier. ii . . ier. xxiii . . hosea . iv . . and his peoples wantonness in the high-noon of them , and threatens to bring their old miseries upon them , ier. xvii . . so amongst men ingratitude is reckoned as the greatest provocation , because it takes occasion to return good with evil ; hence becomes it a deformity not in all persons onely , but also in whole nations guilty of it . the iews god sent his son to , and that unspeakable mercy they contemned , and cryed down the holy one and the just , desiring a murtherer , and god cursed them with blindeness more then cimmerian . hereupon , because ingratitude is so execrable , seneca indicts rome of it , as a spot and blemish she could not easily wipe off , which considered , the persians a wise nation punished no offence more grievously then this , which they thought was an unnaturalness to god , the country , our parents , our friends and our selves ; and therefore abominable to all these : which makes me to conclude , that reduction of libertines to servitude , because they are ingrateful , is a most just and necessary law for those places and persons over whom it is particularly received to predominate . yet the law of england is otherwise , for though it hate ingratitude , ranking it amongst those sins which are in the very forlorn and main battalia of hell ; yet when servitude was in being with us , it punished it not with reduction to servitude , because that is an undoing what the law has done , and a playing fast and loose with the states and conditions of men , which are bond while manumission , and after that continue free . and perhaps our law is so consistent in this , from the apprehension it has of god's abhorrence of the iews cruelty and hypocrisie in ieremiah's time ; for god having commanded them that every man should let his man-servant , and every man his maid servant go free , that none should serve themselves of them any more , which they obeyed , and let them goe : but afterwards ( sayes the text ) they turned , and caused the servants and the handmaids , whom they had let goe free , to return , and brought them into subjection for servants and for hand-maids ; which act of recess from their lenity and justice to their servants , god took so ill , that he for it , proclaimed liberty for them , to the sword , to the pestilence , and to the famine , and i will make you to be removed into all the kingdoms of the earth , vers . . by which sad return of their cruelty and unmercyfulness , we are told that god loves no double dealing , but delights in righteousness persisted in , and mercy thoroughly extended . and this i suppose may be some ground of the reason of the law , which manumits once for all ; for if the lord does enfranchise his villain , he must be free , revillain'd he cannot be , because the lord's act shall be construed most forcibly against himself : and no new villainage can be made , licet gratus vel ingratus sit libertinus , saith our text. for as when villainage was in england , villains could not out their lords of their rights in them by a writ of libertas probanda , but that their lords , notwithstanding such writs , might seise the bodies of such villains , stat. e. . c. . and obtain their servage , r. . c. . c r. . . so when villains are libertin'd to reduce them by a retrospection to their vassalage , was ( i suppose ) utterly against the law , which accounts once well done ever done , and forfeits freedom upon no account but disloyalty . alii quoque sunt hujusmodi casus , &c. ] these and sundry other cases there are wherein the variation of the lawes do evidence themselves ; but the quotation of these , as the chancellour , so his humble commentator enlarges not upon , because they are not of very great moment , nor require any elaboration in the treaty of them , but onely serve to the compleatness of the dialogue , in which the prince is introduced by our text - master in the following words . chap. xlvii . princeps . nec expedit , cancellarie , in his multum sudare , &c. this chapter is but as some others before , transitional to what is subsequent ; for the chancellour having in the . chapter shewed the discrepancy of the civil and common lawes in determination of theft and enfranchisement , in which he conceives the common lawes to be more terrible to theft and more indulgent to freedom then the civil lawes are . the personated prince , satisfied with the main of his assertion , requests his preterition of what might further be alledged in this case ; and to proceed to satisfie him why the lawes of england , tam bonae , because so just , tam frugi , because so temperate and sutable , tam optabiles , because so tuitive of freedom , which every man naturally loves , are not taught in universities as civil and canon law is . this is the summe of this chapter . chap. xlviii . cancellarius . in vniversitatibus anglia non docentur scientiae , nisi in lingua latina . as mechaniques and societies of trading-men had among the greeks and romans their corpora , or guilds , or halls , whereto they resorted , and in which they met for consultation about their art ; so have the liberal sciences had their places of convention , called by some academies , by others scholes , and here vniversities ; so stat. . h. c. . , h. c. . eliz c. . eliz. c. . & . phil. & mary c , . eliz. c. . in which mention is made of vniversities , as a name not onely of number and multitude , but of that which is unum totum ; so matthew paris mentions vniversitas , and so the civilians take it sensu complexo & capaci , for tholossanus his words are , vniversitatis dicis ca tantum quae communia sunt municipibus ejus loci , vel civitatis , ut stadia , theatra , pascua , nemora , & id genus similia : so that universities , in our texts sense , are places set apart and priviledged for learning and learned men , there to reside and study for the service of the nation in church and state. and as universities in general are designed for this use by the bounty of kings and sovereign princes ( vere carum parentes & conditores , saith a choppinus ) so have the vniversitates angliae been , and accordingly have proved feraces ingeniorum & artium , not onely to a proportion with , but to degrees beyond any other universities ( i think ) in any nation of the world. in these , saith our text , docentur scienti● liberales ] these liberal sciences the ancients had a great value of : seneca calls them meritorious artifices , very profitable if they serve for preparation to greater things , and do not intangle and detain the mind in them , prejudicating it against all other necessary acquirements ; for though he were a very great admirer of and proficient in these liberal sciences , yet he forbears not to avocate men from doting on them further then is convenient , because they are subject to abuse , and are often inoperative in their greatest masters as to those ends of virtue which they were primarily intended to promote . for since the philosopher calls them , habits and means to demonstrate things , and sayes , the chief end and noblest perfection of them , consists in their conduct of men to a wisdom of mediocrity in all their actions , they are to be cherished as the fruits of practical experience , by which a right judgement is made of things , and a right method prosecuted to the obtaining of what is excellent in them , or what excellence may be wrought in us by them : for this is the reason why the arts professed in them are called liberal sciences , because they rightly understood and improved , deliver the minde from the bondage of ignorance and the villainage of passion and errour , and make it wise , sublime , courageous , generous , and what not , which is excellent and unvulgar . concerning the number of these , some variation there is between the calculate of antiquity and later times ; nay even in the later computation , * claudius clemens reckons among the liberal arts and sciences architect , hunting , hawking , printing , graving , painting , &c. which i think are not admitted but under other heads by most of the learned besides himself . the ancients by the liberal arts understood gymnàstica , corporal exercises preparatory to soulary ones ; rhetorique , which made men expresse their mindes aptly ; poetry , which excited and magnified the fancy to all height of conception and variety of fancy ; arithmetique , which taught the use of numbers ; geometry , which treated of the position and circumference of the earth ; a musique , which taught the use of notes and sound ; philosophy , which treated of the whole latitude of nature , morality , ethiques , politiques , oeconomiques ; these were the liberal sciences which in them we read of . but these i think , though in effect what our text sayes , docentur in vniversitatibus ] are yet not set down in the very method they are mentioned , there professed ; for the liberal sciences therein are , divinity , physick , the civil and canon law , philosophy , history , the mathematiques , musique , which , together with all the appendixes to them , are professed there and taught therein . nonnisi lingua latina ] that is , the latine tongue is the most general language in which their lectures and authours are read and written ; for though hebrew was the language in which all the arcana of wisdom was written , as after the greek tongue , when its empire flourished , was the most admired : yet in the triumph of the latine empire , and its prevalence over nations , all applications were in the victors language , and all the sacrifices of servility to the idol of success , though it were really short of that which gave way to it . seneca seems to avouch this , who , though a pure latinist , and one whom partiality would have enclined , if ingenuity were consistent therewith , to admire the latine tongue , which was in a sort his mother-tongue ; yet heroiquely professes , that it was but narrow and short , not capacious enough to admit the expression of his minde in . but alas the latine tongue is since advanced , for to that prisca & condita latina which the aborigines and eldest latines under iuno and saturn used , and that which the italians used from latinus and the other tuscan kings , in which latine the law of the twelve tables was wrote , and the roman latine , which after the determination of their kings , they used under their aristocracy , to all these , mixed latines ( which came in , when the empire had many nations admitted into it , who brought their idioms into use with them ) made addition by which though the language may be decocted and somewhat abated in the strenuity and elegancy of it , yet is it more capacious and large as those additions have been contributions to it : and though the generalness of speech be not so elegant , yet the latine of learned mens writing and speaking is yet polite and truely roman . i know tully , that eloquentiae humanae flumen , is no friend to the opinion that the greek tongue is more copious then the latine , but calls it a vulgar opinion , asserting the latine more copious , which whether it be or no i leave to the learned to judge , concluding it in our chancellour's sense , excellent as it is in the general the learned university-language , in quibus docentur scientiae . et leges terrae illius in triplici lingua addiscuntur , viz. anglica , gallica , & latina . these leges terrae what they are , i have shewed in the notes on the ninth chapter . in that they are said to be taught and learned in three tongues , it shews the mutations states are subject to , and the different methods they take in different times ; for the old saxon lawes were written in the saxon tongue , and probably the customs of england , called our common lawes , being contemporary therewith were recorded in saxon : but when the conquerour came and prevailed , then in came the french , with a powder as we say , and every thing was done and said a la mode de france , non permiserunt ipsi eorum advocatos placitare causas suas , nisi in lingua quam ipsi noverunt ] that is , in french ; and this he did to declare his conquest , since change of lawes and language are tokens of plenary conquest● for though i know the conquerour retained and confirmed the major part 〈◊〉 common lawes , waving those parts of them onely wherein they put any th●●g of his absoluteness in danger ; yet in as much as he had them all under his power and they were new christened and had a french name given , whereas they were written in greek , saxon , or latine before , they may well be said to be in this sense changed as to the declaring him a prevailer over the nation , and as to the introduction of the french idiom put upon the lawes , not onely in the books , but from the mouths of the advocates pleading : so that france being brought into england , and the customs of normandy , which were said to be originally but transcripts from our old greek , british , latine , and saxon entryes , become currant here , and pleaded as in france in the french tongue , there was a great progress made to the funeral of the english language . ●iliter gallici post eorum adventum in angliam , ratiocinia de corum proventibus non receperunt , nisi in proprio idiomate . as the pleas in courts , so the accounts of their lands and offices they would not take or admit but in french ; not that they understood not english , for 't is probable in a short time they did that : but because they would retain the memory of their title to england , and by the old language discarded and a new one introduced , tell the natives they were tenants at will , and would reduce their proud stomach to the plyableness of the french peasant . for though probably they had english drudg-bayliffs who did gather in from the severall farmers their rents and incomes , and who conversed with the renters of them in the english tongue ; yet before the frenchmonsieur , who was all agog on his native speech , the accounts must be in french termes and in a french method , which had it been because the french understood not whether they had right done them or not , would have been excusable , but when it was purely out of design to dishonour our nation & language would never have been borne but that necessity had no law. for men being born , must be kept , and living under the regency of providence which circumacts governments and things as most discovers the absoluteness of god , ( who permits their variation as farr as he pleases and when he will restraines them , ) havin a strong and not to be denyed invitation thereto , not to doe it were to undoe themselves , and to disserve as much as lyes in them the future revolutions of good that god had decreed , emergent in their proper season , which considered , the french masters not willing to receive their rentals but in french termes , their then english vassals did well to observe them , and thereby to make a virtue of necessity . venari etiam & jocos alios exercere ut talorum & pilarum ludos non nisi in propria lingua delectabantur as military action in time of warr , so hunting in peace is a generous exercise , if it be used generously ; for though the venatio oppressiva hominum , which nimrod used , be tyrannous and execrable , and maximinus that exercised whole legions in it , that thereby they might be most accurate executioners of torments on his subjects , who by them did so terrific the people , that they prayed he might never return safe to rome , who thought the empire could not be held but by cruelty . to use hunting as a hardning of the heart , and an induction to act mercilesness on men by the assuescency of it to the actors of it on beasts , as capitolinus reports the custome to be , before chieftaines went to the wars is justly to be condemned . i say though this kinde of cruel and vild hunting has many pretenses of plausible advantage in it , which sarisburiensis a mentions , and though men of good consciences cannot use or delight in it ; yet , that hunting which is saltuosa , either of beasts of prey , or birds of wing , sive fiat propter necessit atem indigentiae , as a way of livelyhood , sive propter necessitatem violentiae , - or to destroy those that would destroy cattle and fruits , or propter utilitatem for food to eate , as in those countryes where no butcheries are , but every man kills for his own use , they are all lawful unless immoderately used , and unless municipally prohibited , as in france they wholly are to the peasant , who dare not keep a gray-hound , or mungrel , but must manicle and mutilate them , as in the verge of the forrest has here often been . though therefore the husband man is , as before i have shewed , kept short , yet the noblesse is left free , venari he may , where and when he will , so he observe bounds , and doe no wilful trespass ; for as no man of what degree soever , may hunt , when the corn is upon the ground , and the feilds closed up , unless in his own ground , or in chases and parks by leave of the owner of them : so no man can be ( as i conceive ) denyed to hunt ( except within the verge of the kings house , and in destruction of his game , who is the high lord of the nation ) unless he be of base condition , and not able to live in the state of a worshipful man , for whom onely this recreation of hunting is proper , so is as i humbly conceive the intent of the statute of . r. . c. . . e. . c : . . h. . c. . . h. . c. . . h. . c. . . h. c. . when ever then lords and gentlemen hunted , either with kennel hounds , fox dogs , or coursing hounds , whether buck or hare ( for wilde beasts we never had in england , at least not in our chancellours time , our text tells us , they did ( before third's time at least ) use all venatory phrases in french , and this they did to bring their exercises into a french method , and i wish , that now-a-dayes , though the french terms be obsoleted , yet forein humours did not too much possess many of our young gentlemen , who think , nothing so generous a quality in them , as to be fierce and indefatigable in the chase of beasts , and i would to god they would consider , that as they are by their sublimity of bloud and plentiful fortunes , advanced above others , so in sarisburiensis his words , they would prefer the solid good of the publick , before their pleasurable toyes ; and lay aside follies , to promote the great consequences of peace and warr . et jocos alios exercere ] as their bodily exercise was frenchly , so their wits activity was also ; for they used to be pleasant and facetious in french. iocus ] is by tully opposed to serium , and therefore all nugatory behaviour , expressed in words , is expressed by illiberalis jocus ; hence insanus jocus in claudian , lassivus jocus , saevus jocus in horace , iocus venenatus & turpis in ovid , yea the holy text seems to brand this sinful airyness , as arguing some effrontery and settling upon the lees of sin , with delight and contentment . fo●les saith the wiseman , make a mock of sin . yea , i am apt to think , that because ierusalem did not put on mourning thoughts , and had not an humbled sense of gods visitation , but in the day of her affliction and of her misery remembred all her pleasant things that she had in the dayes of old ; therefore god not onely obdurated her enemies hearts against her , but suffered them to mock at her sabbaoths . though therefore there be much folly in this mirth ; yet is it that pleasantness of humour which many delight in , and for their excellency in smart and facetious speeches are highly valued : this also the text saies was uttered in french , that both earnest and jest might be in that language . et talorum & pilarum ludos non nisi in propria lingua delectabantur ] the mind of man being restless , and chosing rather employment , then musing , antiquity invented the disports of dice and ball. these dice are by the latines termed tali , from talus the anckle bone of the foot , or the postern bone of a beast , of which , they were wont to make these dice ; whence our proverb , when one will act cruelty on a man , they are said , to make dice of his bones : this is near of kin , in the nature of the word to that game of cock-all , which boyes use amongst us , which cock-all , is as much as win and take all , as a cock does who victorying , has not onely the praise of all , but wins all that 's laied on the match by the abettors against him . this is cock-all ; hence talorum ludi , is that cast of the dice that carries the game and wager . now these talorum ludi are things of factive , as the other were of verbal recreation , and tully commends them , when moderately and without injurie to grave things ; and surely though 't is good to keep the minde alwayes well employed , and the less levities doe avocate men from serious thoughts the better is the heart made : yet harmeless and decent recreations , whereby release is given to those austerites , is very necessary and lawful , and not to doe it , is a kinde of homicide and self-felony . for as god in point of duty commands us no more , then we ( if we will put our selves out to the utmost ) are enabled to doe , nor in point of suffering , layes no more upon us then we are able to beare ; so men ought not to be more vexatious to themselves , and put greater burthens and harder lawes of restraint on themselves , then may consist with the hilarity , as well as sincerity of piety . and therefore , though i am no delighter in these lusory recreations , but notwithstanding my general and long converse with men of all ages , fashions , addictions , sciences , am yet designedly and in prosequution of a long determined resolution , a novice in , and stranger to all play , being wholly ignorant of the termes , method and delight of it , and i hope as happy in , and as contented with the ignorance and unsurprisedness of it as any infant is , or as the most captivated lover of it is with the witchery of it ; yet doe i not disapprove the recreation that persons of worth and wisdome take in it , but rather believe it as wisely and worthily by them used , to be harmeless and practicable . whereas then the lawes doe forbid play that depends on chance , such as are dice , tables , cards , which are all ceux d' hazzard ; yet doe they so doe , upon the account of the abuse of them , and the dreadful events that they have had such as are vain expence of time , and prodigality of fortune , oaths and blaspheming of god , passions and quarrels amongst men , prostitution of the pudicity of ladyes , who , by too much familiarity contracted thereby , give occasion to their affections and persons surprisal , and voluptuous engagement , which , i the rather note , because i have known much inconvenience really issuing ing from hence , which , those that have by occasion thereof suffered , have never had the happiness to be compensated by , with any thing of honourable ballance to it , but have been for the ever of their lives injured thereby , so true is that of some in our dayes which tacitus reports of the germans , that they loved play so intently , and were so besotted to it , that they would not onely loose all their money at it , but lay even their clothes and bodies at stake , rather then be disgamestred . i am therefore in earnest against , not the use but the abuse of play , though i think the less any one playes , the less they are in danger to be in love with it , and to be withdrawn from seriouser things by it ; yet i dare , and doe say , very wise and good persons of both sexes use it , and that with greater grace and honour to it , then i wish did thereby accrew to the encouragement of others , who , under pretext of their using it , doe themselves abuse it , but enough of that , onely let the lawes of nations be ever understood to abhorr and decry dice and cards , or other gameing . themistocles made a law , that magistrates should not game , ne respublica ludere videretur , defectum sui relicta gravitate pronunciet ; so amongst the canons of the apostles , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; &c. a bishop , or priest , or deacon , that is intent on drunkenness , or gaming , either let him lay aside his coat , or be degraded ; so synod constantinople , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. no man whether lay or clergy , must from henceforth ( scandalously ) play at cards , if he doe , being a clergy-man , let him be deposed ; and a lay man excommunicated : and the synod of augusta thought constant gamesters so profane , that they decreed them denyal of the sacrament a by which exactness , the church did not so much declare them unlawful because sinful , as intend the avoydance of scandal , and confirming of those in it , that from the example of divine men using it , would be prone undivinely to abuse it . and by the stat . . h. . c. . order is taken for unlawful games , such as there are named dice , cards , &c. out of christmas , which the law does not to deprive men of fashion of their recreations , for that is saved by the satute ; but to disharbour the lodges of these gamesters in houses of expence and riot , in which , estate , time , reputation , is besotted to , and wasted by these sports ; which therefore the statute calls unlawful , because they are unlawfully used : and by them so abused , the magistrate becomes blemished through the insolence of them , whereupon they are declared unlawful and penal , and all licenses to keep houses of game made void by stat. . & . p. & m. c. . concerning these tali read turnebus , iulius pollux , iohannes sarisburiensis , master gataker , and sundry others . pilarum ludis ] this was one of the repasts , which , within or without doores , the ancients used their youth to ; though it be ranked by tully with dice and tables , yet is thought of a more allowed nature then they , and is one of those quinque games that iustinian allowes , and which at this day we use , whether foot-ball or hand-ball , called stool-ball . four sorts of these the doctors mention , paganicam , arctam , trigonalem , follem , clemens alexandrinus , a tells us , the gamesters at it did play stripped , and with all earnestness retorted the ball they received either by hand or foot , and were accounted good or bad gamesters as they did it nimbly and effectually , which seneca b phrases pilam scite & diligenter aeccipere , adding , sed non dicitur bonus lusor nisi qui apte & expedite remisit quam acceperat ; the greeks called this ball 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , from its sphearical figure , as the latines pila from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 aequo , because it s on all sides alike . methinks this sport is kept up liveliest in cornwal , in their hurlings , which is by a round ball plated with silver , and is thrown up for those that bring it away from the many contenders , to keep as their own , and to present to whom they please . one of them i have my self had at my being in that country , presented to me , accompanyed with a mighty concourse of young persons , whose congress may well be called a hurly burly . these and other sports managed in some method and with some words , our chancellour sayes , were passed in the french tongue , in which the french ( flushed with their victory and heightened by the favour of greatness ( for our chancellour has respect to the times in and near the conquest ) gloryed to propagate their nations honour , and to enervate and worm out all memory of the english language and manners . quo & anglici exfrequenti eorum in talibus comitiva , habitum talem contraxerunt , quod hucusque ipsi in ludis hujusmodi & compotis linguam loquuntur gallicanam . this is added to shew the force and influence of use and habituation , in that it works another nature in men , which is the reason wise law-givers have cautioned against ill customs and habits , as the great apollyons of grave and good manners . for the nature of man being prone to evil , and endeared to the object of its familiar intuition and converse , does not onely at first civilly bear , and friendlyly affect what it so familiarly meets with , but at last passionately dotes on even to a delight of surprise by that it so is acquainted with and accustomed to . which god , who knew the heart of israel better then they did their own , foreseeing to be the sin of them under their captivity to the nations , to whom their sins were penally to bring them , forewarns them not to follow the statutes of abomination which were set before them : god has told them , that because of the evil customs and practices of the nations , he had made their land spew them out , vers . , . and because israel that came into their land , and with whom some of the inhabitants would be left , whom they mingling and treating with , might be intangled in the love of their idolatry and immorality ; therefore does he forewarn them to keep close to their directory , his law , and not to observe the statutes of abominations , that is , such customs as by continuance has obtained the reputation and authority of a law , and therefore were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , abominations to god , because practices against his law and the prescripts of nature , which he calls vain , jer. . . because they entertain men in their appearance without any reall satisfaction of or reward to them for their confidence . this then , as odious to god and deceptive to men , the lord cautions israel against , deut. . , . and that because they have a nature of insinuation into man , and thereupon drew god's abomination of man. of this sort besides many others were those customs of rome to sanctuary thieves and promulgate lewdness , which socrates sayes were used many hundred years till theodosius exploded them . hereupon as all law-givers have enjoyned severity of manners , so have they looked upon avoidance of converse with and neighbourhood to evil , as the best means to preservation of good manners ; for vices come into credit by use , and fashions into request by example and practice : so did the ambitus for magistracy among the romans , for though begging of votes made servile magistrates , who did sordid and wicked things , yet when the lex ambitus came to reform this ill use ; it found notable opposition and was decryed , many factions appearing for it because it had long been in use . so is it in the most enormous things storyes acquaint us with , and therefore more probable it is in things of indifferent nature , as playing for recreation is ; yet by them sayes the text is the french terms of play and account kept to our chancellours , and to this day . et placitare in eadem lingua soliti fuerunt quousque mos ille vigore cujusdem statuti quamplurimum restrictus est . though play was not fit or worthy for the states notice or regulation , i mean , as to the terms and method of it , it being reducible to those things that are rather tolerated then commanded ; yet pleas in publick courts are , because they concern multitudes of people , and are the defences of learned advocates in law-cases , which because the people concerned in them should understand , which they could not when pleaded in fren●h , the statute of e. . c. . appointed that all pleas which be to be pleaded in any of his courts before any of his iustices or before any of his other ministers , or in the courts and places of any other borders within this realm , shall be pleaded , shewed , defended , answered , debated , and judged in the english tongue , and that they be entred and enrolled in latine , so that statute ; by which the judgement of the nation appeared against admitting forein language into common use , to the dishonour and eclipse of the national one : for it having ever a great respect to pleadings , ( which are chief parts of our law-art , and wherein the lawyer as much evidences his skill as in any or all other parts of his profession , and since to the obtainment of right placitare was necessary , because else the cause could never be tryed ) the wisdom of the king and parliament ordered pleadings should no longer be in the french but english language . concerning pleadings and pleas read the authorities cited in instit. p. . and my notes on the six and twentieth chapter , tamen in toto huc usque aboleri non potuit ] though the statute took effect as to the language of pleadings , yet not as to all terms of art ; for they having been purposely formed to accommodate the science of the law , the abolition of that would occasion a new invention besides that of time and use , and make some rudeness and defect in speech , which men of art delight not to be encumbered with . therefore , since long custome had rivetted french terms and forms into use in forming of writs and entryes of books concerning them , the statute not directing its inhibition to work on those , men and time conspired to continue them as to this day they are , and that i think to keep the law more secret from the insolence and arrogance of the illiterate and vulgar , who , did they understand these terms of art , or were they so explicated to them as use and business renders them to the learned , they would take upon them to value the law less , or to understand more then they do , or then consists with their subjection to it , or their charity with their neighbours ; which i think is the reason why that declaration of november . that all report-books of the resolution of iudges , and other books of the law of england shall be translated into the english tongue ; and that all writs , processes , returns , &c. shall be in the english tongue , and not in the latine or french , being not more majorum , is obsoleted by the introduction of the old method , of which our text sayes , plus proprie placitantur in gallico quam in anglico ; and the declarations upon original writs , tam connenienter ad naturam illorum pronunciare nequeunt . ] reportantur etiam ea quae in curiis regis plaeitantur , disputantur , & judicantur , ac in libros ad futurorum eruditionem rediguntur , in sermone semper gallico . this relates to the year-books called the old reports , which contain the collection of four or more learned men , who ( particularly chosen to , and ( as i suppose ) feeed for their attendance on the kings courts , in which they had a particular station , & therein abode all the sitting of the courts ) did observe and take notes of all the pleas , arguments , and judgements that in them occurr'd , which notes they at the least at the end of every term did communicate with the judges about , and rectified them by the judges advices , and compared them with the entryes of the courts , by which they being confirmed were booked ; and of these entryes are the old reports of the judgements in the reigns of e. . h. . h. . h. . e. . r. . h. . made up and written sermone semper gallico , that is , not in quaint french , nor in the french that is vulgarly spoken in france , but in good old norman french , this is littleton's french , and the french of the old year-books ; and this we read the conquerour wrote the lawes in . the intent of which laudible design was to transferr the notion of wisdom to after-ages , and to perennate to after-ages , the memory of venerable sages , famous for knowledge and justice in their generation , and to them to bequeath the fair legacy of honour and uprightness , according to the national lawes , to all that should succeed them in place , and thereby have the opportunity ( if they walk worthy of the mercy god vouchsafeth them ) to exceed them in profound judgement and dexterity of determination ; which happy end truely i think succession has been blessed with arrival at , in the matchless continuation of our reverend and learned masters the judges in all the ages since : and may they ever continue so to be , that the law may flourish , and the subjects be secure and happy by the protection and favour of it . for though it lisps out french , and some acts of parliament are recorded in french , as westminst . e. . stat. gloster . stat. de iudaismo . . e. . & stat. mod. levendi fines of the same year , confirmat . chartarum e. . articuli super chartas e. . and many others , as a remembrance of what occasioned its survey and mutilation by the conquerour , whose english issue soon restored it to its ancient demesnes , as i may so say ; yet it s full notes are to purposes of english freedom , and in abhorrence of symbolization with ought that is french , and not naturalized by act of parliament . and therefore though our new reports , dyer , plowden , cook , crook , moor , and others be in french , as fit they should be , as well as the authours of any other art in their learned language are ; yet the acts of our parliament are published in english , that all may know that every thing that is purely english is the love and study of the english nation , and of the wisdom , strength , and majesty of it : which surely i am so farr in love with , and so professedly a votary to , that should i be in place , when the english language should be disparaged in compare with the french , i should take the confidence to do as those learned judges did when a cafe of littleton's , whether a release to one trespasser should be available to his fellow-trespassers , came before them , who gave judgement according to littleton , saying , that they owed so great reverence to him , that they would not have his case be disputed or questioned ; after whom i should be very positive not to have any thing that is english subjected to the french , whose ingenuity and valour , whose language and lawes i honour in all things , but wherein they are competitors with and derogatory from the splendour of these excellencies of my native country , whose prosperity god continue , whose religion god propagate , whose sovereign god preserve , god grace , and god glorifie , whose lawes god maintain , whose rights god defend , the wealth of whose subjects god encrease , and the looseness of whose manners god reform , but i proceed to the text. sub tertia verolinguarum praedictarum , videlicet , sub latina , omnia brevia , originalia , & iudicialia , similiter & omnia recorda placitorum in curiis regis , etiam & quaedam statuta scribuntur . the use of latine was probably introducted by the clergy , when sundry of the bishops and others of the spiritualty were judges and chief officers in the kings courts of law , as from after the conquest to the middle of edw. . time they in a good measure were . and they knowing that whatever the alteration of national languages were , & however the entryes of judicial matters in them differed according to the language in or out of use , as befell the british , saxon , danish , norman tongues , latine would rest currant and be universally understood , caused entryes of the courts of law , and the instruments to bring causes and persons to appear and stand judgement to be in latine . now those things that the text here referrs to , are original and iudicial writs ; concerning writs see my notes on the . chapter . by originalia i am apt to think our text means writs to call men to answer for violation of some original law , whence because they are formata ad similitudinem regulae iuris , they may be called original writs , because they do ( as i conceive , yet ever with submission to the learned ) originem dare secta , as the original law violated does originem dare brevi ; for the rule in fleta is , tont erunt formula brevium quot sunt genera actionum , quia non potest quis sine brevi agere . these original writs being grounded upon original laws , that is , either the common law or some statute , cannot be altered or digressed from , but when the lawes themselves can be altered , that is , by parliament , the common consent of the nation , so sayes fleta , and sir ed. cook after him . iudicialia ] so called because they are to bring the party that offends to judgement of law. these are , if i mistake not , varied according to several occasions being framed by the cursitors who are the masters of the office whence they issue , and thereupon called magistralia . both these are by our text said to be linguâ latinâ : so are the records or rolls of the courts of chancery , kings bench , common pleas , exchequer , and the several appendixes of them are all in latine . etiam & quaedam statuta ] to wit , magna charta , stat. marlbridg , the statute de bigamis , we siminst . . the statute of circumspecte agatis , the stat. westmin . e. . de tallagio non concedeudo , e. . de asportatis religios . e. . de frangentibus prisonam , e. , de militibus , articuli cleri e. . and the rest . quare dum leges angliae in his tribus addiscuntur linguis , ipse in vniversitatibus , ubi solum exercetur lingua latina , conveniexter erudiri non poterunt aut studeri . this clause recollects the force of all the premises , and answers the quaere , why the lawes of england were not taught in the vniversities of england as well as the lawes civil are , to wit , because the civil lawes are originally writ in the learned languages , which are common to all scholes and scholars , and without which the arts cannot be attained ; and the latine tongue being there publickly spoken , ( for the solum referrs to the place not to the tongue , as if onely latine were there spoken and exercised and no other learned language , for greek , hebrew , and other languages are , in the same sense the latine is , exercised therein : ) but therefore it is said solum lingua latina , because the latine tongue is therein more used in discourse and exercise then any other tongue there , or in any other place of the nation is , exercises in latine being as it were entailed to the scholes , and fixed to the freehold of the universities , for thither all persons of learning repairing , and there staying to study , thereby merit their degrees . and as all wits and perfections of promptness are there presumed to be ; so all exercises , authors , and dexterities in art are also , which is the reason that the universities have the onely opportunities to institute youth in matters of speculation into arts and languages . and therefore the lawes of nations , the civil law , being in the latine tongue , and being the law of the continent , which a professor of it may practise and own in any part of the christian and civilized world , ( when as the common law is but a topique law , and serves onely for a municipe purpose , being thereupon writ in a municipe language ) is proper to be taught in the universities , and has degrees and honours therein , when our common and statute-lawes have none there . leges tamen illa , in quodam studio publico , proillarum apprehensione omni vniversitate convenientiore & proniore docentur & addiscuntur . this clause introduces the discourse of the famous societies of the law , called the inns of court. of which to write to the proportion of their augustness is altogether impossible for any man , who has so little help to their illustration , as ( for ought i see ) the learned and generous professors of them are enabled to communicate to him that has a desire to blazon the beauty , antiquity , and accommodation of them . i confess my hopes and expectations were to have found much assistance herein from my friends of the long-robe ; but truely , save that the learned and most civil gentleman sir thomas witherington , serjeant at law imparted a discourse which in the conclusion of this chapter i mean to print verbatim , nothing has been communicated from any of them to me . it is probable at first men that studied the common laws dwelt & lodged in diffusion , where being far from the courts of westminster , and uncertain to be found by those that desired their skill and advice , they to avoid that trouble to themselves and their clyents , did associate and joyn their studies and lodgings each to other , which in time came to be accounted studium publicum ; all of the profession resorting to the common residence , and so making one publick presence of law and lawyers . after as they encreased , men of name withdrawing themselves for convenience of more room and better air , as their clyents followed them , so also young students , admirers of them , joyned themselves to them ; till at last by time and agreement they grew into some proportion of a body , which had so much of head and members , lawes and servants , as are necessary to a subsistence of honour , and a perpetuation of being : study being best carryed on in a place of repose , and by numbers that are ambitious to search that they may know , to know that they may professe , to professe that they may gain , to gain that they may enrich their heirs and families , and by these riches acquired by the law , encourage a continuation of students in the law. thus as i conceive , rose the inns of courts about edward the thirds time ; for before that though the law of england was ever in high honour , yet was it less celebrious in its publique professours and profession then after it became . for when by the influence of the renowned judges vere , glanvil , lucy , & others , gentlemen of great families & interest in the nation , the scholes of canon and civil before and in that time publiquely kept in london and elsewhere , were put down as about the year . . h. . they according to master selden were , then i conceive these publica studia of the law took root , and sprouted out more in a few yeares then before they had done ; and these publica studia , as to the rudimenting and practice of the law , are ( sayes the text ) omni universitate convenientiora & proniora . studium namque illud situm est prope curiam regis , ubi leges illae placitantur , disputantur & judicantur . though time has enlarged the one onely society of law , which our text calls studium illud into many , yet those many are by our text called but one study ; because though they are lodges of several students , yet tend to one end , the propagation of national justice according to national law : which because it is determined in the kings court ( not that of his personal but politique residence , therefore inns of court seated so near westminster , where the courts of law are , are said to be prope curiam regis . for as in the sense of the text , all the inns of court make but one publick study , so all the courts of westminster-hall make but one curiam regis , it being the same great king whose lawes are administered in every bench of his court to one and the same purpose of order and justice ; to doe which ( so symmetrious to the administration of god himself , who is the archetype justicer ) our chancellour sayes , the laws that all persons must submit to and be adjudged by , are opened , debateed and judged there , and there onely ubi leges illae placitantur , disputantur & judicantur , sayes the text ; placitantur by the parties , disputantur by the advocates , judicantur by the judges ; placitantur , that they may come to tryal , disputantur , that they may appear what they truely are in trial , judicantur , that they may be sentenced as they appear to be upon and after trial ; placitantur , that every grief may have a remedy , disputantur , that the remedies may be rational and according to legal justice and circumstances of fact , judicantur , that the determination of learning and justice may be subsequent to the matter , pro and con ; this gradation shewes the law not to proceed furiously , nor to delay slothfully : but to hear , consider , and determine , as the weight of the matter in controversie requires , and that judgement to deliver from , and enroll in , the kings court , according to justice and good conscience . per iudices , viros graves , senes , in legibus illis peritos & graduatos as the pleading , opening , and arguing of cases belong to the students of the law , who being barristers or serjeants , are incipient and perfect graduates in the law : so the decisive act of the law , is from the venerable and prudent mouthes of the judges , whom the text , to the honour of the kings and laws of england , terming viros graves , who , though men by nature , and graduates by their proficiency in the knowledge and apprehension of the law in all the attainable latitude of its profession , it raises to all veneration as heroiques and divine sages , from the consideration that they are graves mente , senes corpore , fathers of experience , whose youths abus'd not the inns of court by making them otii diversoria , and by trifling out their time in them , but were taken up with incessant studies , profitable conferences , diligent exercises in the houses , constant attendances on the courts , laborious transcribing of reports , yea and who when they were called to the barr , ( which they never or rarely importun'd ) did forbear practice , till they had ruminated well , what the duty of , the requisites to , and abilities for it , were ; these oracles thus ascended to , and the virtue in them thus graduated , have by the wisdom of the kings of england in their respective reigns been advanced , and by the people of england been accepted , as the ordinary living and speaking law , that is , those learned , pious , and impartial dispensers of justice in all causes , and to all persons , who are able men , fearing god , loving truth and hating covetousness . but of these , because i have written in the notes on the . and . chapters , and shall further , on the . chapter , when i come to it , i forbear to write more ; onely let me ever remember the nation of that due gratitude they are to perform to god and the king , for the mercy and favour of furnishing the courts of equity and law , with such learned men , and sincere judges as now sit in them , of whom i must ever profess my thoughts , that i believe they are in all respects of learning and integrity , inferiour to no age of their predecessors ; nor were the people of england ever better satisfied with the iudges of their times , then now the people are with the present iudges , who are ( for i am above flattery , and despise to prostitute my name and pen by any ungentleman-like meanness ) as the text ( written by one of them in every regard ) describes them to be viri graves , senes , in legibus illis periti , & graduati , ] and as sir edward cook sayes , littleton had great furtherance in composing his work , in that he flourished in the times of many famous and expert sages of the law ; and he himself accounts it of all earthly blessings not the least , that in the beginning of his study of the lawes of this realm , the courts of iustice , both of equity and of law , were furnished with men of excellent judgements , gravity , and wisdom , from whom he confesses to have learned many things which he published in his institutes , so may the hereafter-writers as well as the present ones attribute much of their happiness and encouragement to the great parts and virtues of these excellent sages , who yet ( blessed be god ) live the life of nature , and ever will live that better and more desirable life of fame : for when the name of the wicked shall rot , the upright shall be had in everlasting remembrance , but i proceed . quo in curiis illis ad quas omni die placitabili consluunt studentes in legibus illis , quasi in scholis publicis leges illae leguntur & docentur . in euriis illis ] that 's in westminster-hall for there the courts are fixed when as before they followed the kings court , and were removable at the kings will , the returns being ubicunque fuerimus ; therefore the courts wherein law is debated , considered , and adjudged , being at westminster , the publick lodges of the students so near it , advantage the students to repair more readily to them : and that they that intend to be lawyers , and make a progression of their study , doe , omni die placitabili ] that is , every hall-day in the terme ; for they i conceive are only dies placitabiles , when the courts sit wherein causes are pleaded . for though in terme times some holydayes are dies non placitabiles , and non juridici , as the common lawyers call them , of which sort in every terme , there are some to be named besides sunday in every week , which is dies non juridicus ; yet every ordinary day in terme is reputed dies placitabilis or juridicus ] and thereupon pleas are held in the courts , and thither upon such dayes the clerks and the atturnyes of the courts , together with the pleaders and students doe confluere ] that is , not barely repair to , but meet and conjoyn in , as many waters doe refund themselves into one common panch . thus caesar sayes , consluebat ad eum magnus numerus ; and tully has confluere ad aliqua studia , in unum locum confluere , ad nos pleraeque causae confluunt ; and when he is seraphique in the praise of one , he sayes , laus , honor , dignitas , ad aliquem confluit , and sentina reipubl . confluit aliquò . and this the students doe , that they may from the arguments of the advocates , and the dictinctions and declarations of the judges , hear and understand what the law is , and by this are the students as much instructed as they are , in scholis publicis leges illae leguntur & docentur . situatur antem studium illud inter locum curiarum illarum & civitatem london , quae de omnibus necessariis opulentissima est omnium civitatum & oppidorum regni illius . this studium here intended , is ( as i said before ) not referrable to one inns of court , but to all thoses severalties of that one study , all which he calls the inns of law. for though i know master stow tells us , that the temples were granted to be houses of law in the time of edward the third , when probably other inns of court were not so destinated ; yet that our text means these , excluding the other , is not likely . for our chancellour was a member of lincoln's inn , which house of his study and breeding ; he cannot be thought to leave out of his studium in the text ; for though before h. . time ( when sir tho. lovel is said to be a great benefactor to and enlarger of it ) it was not an inn of that magnitude it now is : yet a most ancient house has it been of the earls of lincoln , one of which dyed there anno . but rather that he looking on them all as in the suburbs of london and confines of westminster , makes them lye pat for receiving clyents from the city the seat of trade , applying themselves to westminster where the courts the sphear of justices are ; where all controversies depending on contract ( which brings more sacks to the lawyers mill then any thing else , because it is the general commodity of the nation ) are to be determined . now this opportuneness to london as it is the mother-city of england , opulentissima omnium civitatum & oppidorum regni illius , declares the wisdom of the men in seating themselves so near the greatest , richest , and most populous city of england ; concerning which i have , as in duty and gratitude i am bound as it is the place of my birth , written somewhat testimonial of it in the notes on the . chapter and ¶ elsewhere : so should i add somewhat here in admiration of her , but that the text prevents me when it terms her de omnibus necessariis opulentissima omnium civitatum & oppidorum regni . ] notwithstanding which , many reproaches and detractions dayly pass from the mouths of envious and ingrate men against her , which are so farr from effecting any real evil to her , that they do but intend the industry of her citizens the more to trust to god and their diligence , and by the blessings of them to make themselves and their families happy , which they would soon do to the disappointment of their reproachers , would they match within themselves , and give in trade not so large credit ; for so long as god sets not his face against london , and the river of thames flows up to london , london will be london when all its contemners are in dust , and will be honourably remembred when they and their names shall be forgotten . for its immortal genius has so much of an indefinite felicity in it , that as it has hitherto in all ages been the glory of this empire , so will it for the future i trust continue to be ; for it is urbs per euncta maria genitrix , as seneca wrote of miletum ; 't is civit as literarum , as cassiodore termed rome ; 't is domicilium legum & gymnasium literarum , and in lipsius his words opto sic esse & manere : and therefore the text does not hyperboliquely call it opulentissima , but with relation to the plenty of men , diversities of callings , abundance of merchandise , and vastness of wealth , which above and beyond any city in england it hath . furthermore our text sayes , the inns of court placed in the suburbs , scorsum parumper , ubi confluentium turba quietem perturbare non possit , ] were fitly seated ; for had they been in the streets of trade , there had been no conveniency for study which is advantaged by silence ; and had they been in the country , there had been no opportunity to the king's courts but with much toyl and inconvenience , which this situation so accommodated both to the city , the magazine of money , food , books , men of all sorts and conditions , and to the courts of westminster whereunto all men are for justice to apply themselves , hath prevented . these things , i say , well-weighed , there appears in the situation of them , where they are , much of prudence and convenience . and so i end this . chapter . chap. xlix . sed ut tibi constet , princeps , hujus studii forma & imago , illam ut valeo jam describam , &c. this chapter is purposely designed to treat of the inns of court , and of all those circumstances in and about them ; which the chancellour , whose delight and stay was much in them , endeavours to impart to the honour and advantage of them . for since our chancellour was no heady and desultory writer , ( who passes over the solid parts , and treats onely of the trifles of his undertaking ) but a grave and learned authour , which gives every limb and part its due emphasis , proportion , and ingrediency , whereby he makes the whole symmetrious . as he had before in the eight chapter discoursed of the forma iuris , which every good student should embrace and prosecute ; so here he does discourse of the forma & imago studii , of the nature and order of the inns of court , wherein the law , which is so useful to order and religion , is studyed . concerning these i must profess my unhappiness not to be able to write as i would , and they deserve ; ( for that they being no corporations , but convents of men who have no sanction from the prince to incorporate them , but are what they are by mutual consent and an order of common understanding , which passes between the gravity and youth of them , who are for the most part so considerate each of other , that what the bench and parliaments in them conclude upon , the rest observe ; or otherwise must expect not onely the scandal of being rebellious , but the disfavour of the judges who will not hear any korah's that are disorderly to the ancients rules : which loss of their practice and reputation makes some as plyable to the benchers orders , as the benchers are obsequious to reason and justice in the dispensation of them to the youngsters . ) i say , concerning these i would more elaborately discourse , but that i yet neither finde , nor have communicated to me any thing but what is too narrow to compleat such an undertaking . wherein therefore i am defective herein ( as i am in many other parts of this endeavour ) as i humbly crave the learneds pardon for it , so i promise an hereafter-supply if god shall bring this commentary to a second edition , and betwixt this and then i shall endeavour such collections as may most contribute thereto ; in the mean time i am to consider these houses or lodges of law as our text calls them hospitia . concerning hospitia i have written in the notes on cap. . that which i shall add here , is , that the lodges and places of receipt to souldiers in their advance to or retreat from the warrs , were of old so called . for though the souldiers had among the romans their hospitia campestria , which were their tents in the field ; yet their hospitia militaria were fixed to some settled place or other , from which they departed not , but to which resolutely adhered . these were called inns for their receipt and charitable accommodation , because what receipt they gave was free and in an orderly and sutable manner to such expectations as strangers could hope to receive upon travel . hence comes it to pass , that because hospitia militaria are properly intended to receive military men ; the inns of these military men termed templars , residing in the temple , london , gave name to the most ancient and eminent of the inns of court , the temples , which became inns of law , as heretofore i have shewed . these hospitia ] our chancellour sayes , are either minora , preparatory lodges of freshmen ; for none were to be admitted of an inns of court , but such as first have been in an inns of chancery ; and such as probably were forced by exigency of fortune to live near : or majora , such as received not the gudgeons and smelts , but the polypus's and leviathans , the behemoths and the gyants of the law. of the first sort called the inns of chancery , so called possibly because they contained such clerks as did chiefly study the formation of writs , which regularly appertain to the officers of the chancery ( to wit , the cursitors , ) there were by the text ten : these were as the ten tribes , that revolting from ignorance to clerkship , became men of prudence , diligence , and fortune . those that of them yet remain are thavy's inn , reputed the ancientest inn of chancery , so named from one thavy a citizen of london that therein temps e. . lived ; but temps h. . it is said to be purchased by lincolns inn. bernards inn , in the occupation of one bernard , who temps . h. . dwelt in it , and ever since it has been called so . furnival's inn , so called from sir william furnival , temps e. . in h. . time it belonged to the earls of shrewsbury , after purchased temps q. eliz. by the society of lincolns inn. new-inns , erected to be an hostle for students temps h. . since purchased by the society aforesaid . clement's inn , so called because it pertained to the parish of st. clements danes . clyfford's inn , the house of the lord clyfford . staple-inn , belonging to the merchants of the staple . lions-inn , before h. . time it was the sign of the black-lion , whence called lions-inn to this day . these eight are all now in being . there was a ninth , chester's inn , which stood on or near the place where somerset-house stood , but it was pulled down temps e. . the tenth inn of chancery , which was standing in our chancellour's time , is wholly lost in the memorial of it ; unless st. george's inn over against st. sepulchres church , which is thought to be the ancientest inn of chancery , be it : for scroop's inn is not to be accounted one , since it has been reputed to be an house of serjeants . but these eight yet in being are still inhabited by young atturneys , and students after the manner of the inns of court , and are accordingly governed and ordered ; for they do all of them appertain to some or other of the inns of court , and have readers every year sent from them , who do therein read law to the young students after the likeness of the inns of court : and every one of them , sayes our text , contained centum studentes ad minus ] who though they resided not therein alwayes , nor had commons in them but in term-time , when the atturneys and others members of them came up to the term to follow their clyents businesses ; yet were they contributary to the charge , and submissive to the government of them , and there had their chambers and were in judgement of law abiding . and many of them that were young and intended study of the law , in order to transplantation to the inns of court , learned here the knowledge of original and judicial writs , and read the elements of the law , to fit them for remove into the greater and more creditable sphears of law , hospitia curiae ] so called because they are receipts of the children of nobles and gentlemen , who onely of old were admittable into them . these our text reckons as at this day four , the two temples , the house of the templars , wherein they lived in great plenty above an hundred years ; lincolns inn , the house of henry lacy earl of lincoln , afterwards it was the bishop of chichester's till eight's time , when the interest thereof coming to justice sullyard , sir edward sullyard in eliz. sold it to the benchers and society of students therein . though the temples have ever been famous for good pleaders , yet this inn grew up chiefly in sixth's time , when one of the greatest gloryes of it was our reverend chancellour ; gray's inn , seated within the mannour of poorpool , as i conjecture , the corps of some prebendary in saint paul's church ; called gray's inn from the noble family of the grayes inhabiting it in third's time , near about which it began , inhabited by the students of the law , who had it granted to them . all which are societies of the cream of the gallantry of england , each of which in our chancellour's time contained near students , which is a vast augmentation since fifth's time , of which mr. fern sayes he has seen an alphabet of the names and armes of all those that were members of an inns of court , exceeding not above the number of sixty : so great an improvement does a few years produce , that in the very next reign those inns had near or full out . benchers , barristers , and single students , since all these are contained under the text's studentes , for they do studere optimis disciplinis & artibus , as the oratour sayes ; and thereby they do landi & dignitati studere : yea , they do pesuniis , imperiis , gloriae studere , and in so doing , arrive at that greatness no profession , besides theirs , brings the proficients in them unto . in his enim majoribus hospitiis , nequaquam potest studens aliquis sustentari minoribus expensis in anno , quam octoginta scutorum . by this it appears the honour of being an inns of court man was great in our chancellour's time , because none were admitted of them but men as of bloud so of fortune ; since to live and study there was so chargeable that a thrifty liver there could not come off for less then escues , which i take not to be as mr. mulcaster makes it to amount to twenty marks , but casting the escues into those that are escue vicil , worth s. d. sterling a piece , comes to near l. a year , which in that time was a good allowance , and this the chancellour knew to be very competent for a student that lived in no luxurious pomp , but intended his mindes accomplishment in order to his future profession of the law. for although most men now repair thither for fashion , and to spend money ; yet of old they thither went and there resided to acquire parts of virtue and action , and to compleat themselves as good christians and stout gentlemen ; and this to doe , nothing contributes more , next god's blessing , then frugality of living and keeping close to study : for large fortunes and allowances make youth preys to vice and baits to seduction . for when in elder ages there was more severity conveyed to youth by education and frugality of nurture , then were effeminacies anticipated , and luxury was wholly borne down by the prevalence of resolved virtue ; the moderation of which as it directed the affections and desires to god and goodness , so did it take away the necessity of a great fortune , which in this deviation from it , is indispensably to concur with the charge and state of immoderate and high living , which is the reason of the change of times in portions and expences ; for whereas the portion of h. the third , son to the conquerour , when he was a younger brother , was but bare pounds , and that was then thought a good estate , now such a portion is thought but small for an aldermans son ; so much , saith sir henry wotton , is either wealth increased , or moderation decreased . et si servientem sibi ipse ibidem habuerit , ut eorum habet pluralitas , tanto tuno majores ipse sustinebit expensas . in our chancellours time , men of honour and worship , sent no children to these inns of court , but such as they could honourably and plentifully treat there , which they not opinionating to be done , other then by adding to their convenient chamber , decent furniture , rich apparel , different masters for every science , and a full purse for every pastime , a well apparated servant to attend them , enhaunsed the expence of their stay there , which they very willingly allowed to train their sons up to generous purposes of recreation and profession , since , as they were the best of the nation that so placed them , so they having sufficient estates to defray the charge of their conspicuity , expended it on them in their persons and equipage . for as then none but men of estate entred themselves in the inns of court ; so being there entred , none almost lived but with a servant to attend him when an under-bar student , which was very comely and useful , if the servant were well chosen , and proved well . for though a mean and trifling servant , be but a harpy , and serves onely to promote a debauched masters vanity , by the instrumentality to which he takes confidence to become a quarter-master with his master , as knowing he must not displease him , least the secrets intrusted with him take ayre by his discovery ; the convenience of which servant to carry on his secret as it first assisted the master in his clancular designs of vice , so the awe of his detection upon discontent , makes him so mean a vassal to his servant , as nothing meaner can be . for nothing is more insolent then a necessary servant , which the earl of essex found true in sir anthony bacon , whom he made use of in all his secrecies in the difference he had with cecil , and thereby did so inflame bacons mercenary soul , that he covetous to dreyn the earl of some notable reward , gave out that he could mend his fortune under the cecilians , which the earl of northampton hearing , friendlily discovered to the earl of essex with this concurring advice , to keep bacon his confident , whatever he gave him , least his discoveries should ruine the earl in his fortune and honour . the earl of essex followed the counsel , and gave him essex house , which he was fain after to redeem with pounds in money , and pounds he before had upon a like trick , which shews that servants if not well chosen , and warily trusted , are dangerous attendants . that then which the servant is an advantage in , is when he is sober and sincere , when he understands his duty , and makes conscience to perform it , and both will and can serve his master to honest and worthy purposes , to excite him to worthy actions , to advise him humbly in doubts , this is a servant that deserves to have patrimonium libertini as well as he has ingenium libertini , as seneca sayes , not as lipsius interprets ingenium libertini , humile , terreum & quod saperet stirpem , but in that he has a free and virtuous soul , deserves to be sutably rewarded for his service . occasione vero sumptuum hujusmodi cum ipsi nobilium filii tantum in hospitiis illis leges addiscunt . it should seem by this clause , that none but gentlemen of the best quality sent their sons hither ; and by command of king iames , none was to be admitted to the inns of court , but a gentleman by descent , and that not onely because they had keenest stimulations to liberal studies , wherein being masters they might best serve the noble ends of justice and order : but also for that the expences of their education to the law being so chargeable , is best borne by them that have plentiful incomes to defray them by : and these by the text are said to be nobiles , and their sons sent thither nobilium filii ] which is to be understood not of the high nobility , the peerage ( though often their sons were thither sent , and there have professed the lawes , and been advanced in fortune by them ) but the sons of the lower nobility , knights , esquires , and gentlemens sons , who are chiefly the nobiles here ; for these , as their fathers have great estates , and generous bloud in them , so doe beget and nourish in their children that bravery which may excite them to and confirm them in virtuous emulations , and rouse up their spirits to excellent performances . and this the ancients thought so peculiar to noble birth , that they decryed all mean born persons from publick trusts and honours , and that , for that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for the very servility and meanness of spirit which is impressed on them by their genitor ; and also , that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that illiberal education that they take by reason of it . i know this is no general rule exempt from all exception , for there is every dayes experience of gentlemen born , that are sordid and mean in nature , and of plebeians by birth that are genteel'd in disposition ; but for the most part , and according to the general dispensation of nature it being so , the learned in all times have judged those fittest for great trusts and honours , who are not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( as mercury in lucian cries out of extemporary philosophers , who base in birth , and breeding , couet to doe high things but fail in them . ) but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as socrates his words are , well born , and well employed and improved by virtuous education , who thereby will be able and willing to expedite justice , and to prevent oppression and violence , which as ill advocates doe promote , so good ones doe prevent . this is the reason d'argentre in his account of britany sayes , that by the lawes of britanny , and according to the old constitution of that dutchy , no man could be an advocate or pleader of causes , but he that was of a noble ancestry of gentry ; because mean spirits doe embase the honour of the lawes by serving the ignoble ends of those , who being great would be cruel and disorderly against the counsel and enaction of the laws : which because men of good families may be presumed not to connive at or approve , but to oppose and reject , therefore they have been ever judged meetest to be bred to the knowledge of lawes that they might be employed in those trusts . and therefore though some despise bloud and parentage ( and in some it deserves no less , because their lives and minds are so unlike it in any expression worthy it ) yet wisdom thinks 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the most glorious temple of the minde onely fit to contain it , and that onely nobility to be , as philo's words are , the greatest good and causal of the greatest good , which is solely bent upon and conjured to advance goodness and virtue ; which ambition , when the minde of man has , he in whom that minde is , deserves the utmost secular honour . let these be kings , sayes seneca , though their ancestours were none ; for in that they preferred iustice before their emolument , and when others tore and rent the common-wealth with factions , these lay still and encouraged no commotion , nor irritated any party . let these rule , who could so well overrule their own passions ; and so benefit mankinde by good precepts and principles . this is true nobility , not tincture of bloud , & grandeur of fortune , or honour from princes , but that honour that appears 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. in active virtue , when high spirits , put men upon high designs of virtue in deed and truth , and not in word and vapour ; for without these , gentility and nobility signifie just nothing , nor is it any addition to our student to be nobilis ortu , if such he be not dotibus & studiis . whereas then 't is said in our text , ipsi nobilium filii tantum in hospitiis illis leges addiscunt , 't is to be understood that as they are most proper to learn and practise the law , so for the most part they , and they onely do ; for tantum is not here exclusive , but accumulative , not an onely of impropriation , as if none but such did or might : but an onely of annumeration , as i may so say , more of them then of any other doe , nay the greatest part of those that doe in hospitiis illis leges addiscere , are of those ucbilium filii . for this philosophy is no populare artificium , but those are to study and attain it , who are industrious and not faint hearted , whom no labour and toyl of brain will discourage , no voluminousness of authours will affrighten . for though ingenuity and mother-wit may do much , and may make a great bustle with it ; yet books throughly read and understood are the great helps to skill and art : and he that intends them well shall addiscere , as our chancellour's word is , that is , not operose nihil agere , & in literarum inutilium studiis detineri , which the moralist accuses the greeks to have corrupted the romans with the love of ; but to learn by study what may add to their own ingenuity , addiscere quasi addere ad qua didicerunt , to make an improvement by learning to what god has given them in nature . cum panperes & vulgares pro filiorum suorum exhibitione tantos sumptus nequtant sufferre , & mercatores raro cupiunt tantis oneribus annuis attennare merchandisas suas . here the chancellour shews how it comes to pass that the gentry onely do send , and can maintain their sons at the study of the law which is so chargeable . for there being amonst men poor and vulgar persons who cannot , and men of trade who will not be at the charge , those that doe and will must be of the gentry , who are neither of both ranks but a degree above them : and thence are the nobilium filii sent to these hospitia as the soli that can and will bear the charge of the breeding to profess the law. alas , in our chancellour's time the yeomen and country-farmers were kept low and needy , the citizens not so full and landed as since queen elizabeths time they have grown ; and therefore our chancellour had good reason to write as he did , that the nobilium filii onely did , because the pauperes and vulgares could not , and burgers the mercatores here , would not be at that charge , by breaking their stocks and disbursing such summs of money , as in this way of breeding was to be expended . but alas since that time all things are become new : the peasant grown rich makes his son par cum thaino dignitate , and the citizen descended out of the best families of gentry in england , having an elder-brothers fortune for his son , breeds him as high as may be , and yet does not merchandisas attenuare . for he looking upon mens sons that have risen to be great counsellours to princes upon the account of good parts well directed and fortunated , hopes by brave education , to see him prove one of them , and thereupon cares not what he spends upon him , so he be sober and diligent : but rather the breeding of a son to this course makes the father more diligent and concerned to get , that he may leave an estate fit for such his sons generous education . so that now not bloud is the onely good ingredient to an inns of court man , but fortune , and gentlemen in reputation men are according to the latitude or narrowness of their fortune ; though truely good breeding and brave qualities with little fortune often works greater wonders by its endeavour to obtain conspicuities of life , then the greatest bloud or fortune without them has obtained , witness not onely martia's son , whom seneca terms so rare a lad , that the wisdom and majesty of his demeanour brought him into the sacerdotal grandeur , when but a childe , and fabius maximus , cnejus domitius , sempronius gracchus , all which when but very young were highly for their wisdom dignified , and tacitus sayes , deservedly ; but also in that never to be forgotten but ever to be honoured sir henry sidney , a gentleman , who though he had many peers to him in fortune , yet had none in his time of almost equal virtue , nor any that i remember of like reputation as he was ; for though queen elizabeth's time , which was so choice in ministers of state and publick employment , nourished many incomparable statists and courtiers , yet did few if any of them overtop sir henry sidney , but that he was accounted the glory of them all : being therefore not full one and tweny years of age , he was sent embassadour to h. ● . of france , and that not upon complement , but matter of great concernment ; which he transacted with so great judgement , that every year after he was on some embassye or other : and at last was four times lord-justice of ireland , three times deputy of ireland by special commission , and dyed knight of the garter , leaving his son most like him in all renowned qualities , and therefore admired by all the world , learned , eloquent , valiant and courtly sir philip sidney , who yet remains in memory the darling of the muses , and the eternal grace of all good letters : but i proceed . quò fit , ut vix doctus in legibus illis reperiatur in regno , qui non sit nobilis , & de nobilium genere egressus . this unavoidably follows upon the premises truth : if none can be learned in the lawes but those that study it , and none can to a latitude of learning study it but they that do it in proprio studio , that is , take the water at the springs head , and attend the courts in their debates and resolutions ; and those that study it must be able and willing to undergoe the charge , which few in sixth's time were but the nobiles , that is , the gentry , who had fair lands and offices , by the income whereof they plentifully supported themselves , if by all these gradations there is ascent to learning in the law , then the learning that is attained to , must be by the nobles , that is , the gentry , who are so docti in legibus , ] that they are sacrarum opinionum conditores , as after they have been double readers or serjeants they are accounted . i grant there might be some then , as now there are many more who are learned ; yet not of the nobilium genere , which is the reason of the vix to qualifie the peremptoriness of the position : but to one that was , twenty were not of any race below that of gentry by the father , which is the right line , and so are nobiles within the text ; or by the mother , who being de genere nobilium , her son may by our chancellour be said to be de nobilium genere egressus . vnde magis aliis consimilis statûs hominibus , ipsi nobilitatem curant & conservationem honoris & famae suae . this is added to shew the trust that the nation puts in men of the law , and the confidence they have in them from the consideration that they have honours and fortunes to aw them from all fordid and trucking practices . for though every man is , as an honest man , bound to keep himself just and upright , because of god his judge , and conscience his accuser or excuser ; yet are some seemingly more obliged hereto then others , because they have superadded restraints and favours to those common ones , which the humane nature promiscuously hath , and by which it is circumscribed and confined : and this the text makes to be riches and bloud , the two darlings of all polities , and those pair of favourites that accommodate peace and warr. now though no man can endow himself with either of these further then god gives him opportunity thereto , and gives him wisdom to discern and co-operate with his opportunities ; yet every man that has the use of reason and the fervour of justice in him , can chuse whether he will be fordid or not , and can ( if he will ) resolve to keep himself from a just arraignment of dishonesty and injustice . and therefore men , next to the fear of god , should propound to themselves great examples and great exceedings of any thing in their family before them , as that which might both keep them in aw of lessening their family by doing any thing minute , and put them forth to do somewhat beyond what is almost effectable : my reason is , because where there is not something of merit and unvulgar floridness appearing in men , the disappointments of life will so lessen and abate them , that they shall have nothing able to cope with or prevail against them , but must take down their top-sayls and strike mast , leaving all that is dear to them to the mercy of those cruel vicissitudes , which often swallow down with more then beastial ferity the most lovely fruits of life , great parts and great diligence . that passage of seneca is enough to bid men beware dependance on mortal levity or popular fame , so it happens to me as to many ( saith he ) who are not by vice , but by a secret providence brought to poverty ; all pitty , but none relieve : lipsius has a note on those words , which referrs his grief to the court of nero , which he having spent much time in , bemoans himself for the loss of it , all his attendance there neither bettering the mindes of those he conversed with , nor advancing his fortunes as any compensation to his service . a misery that facetious and generous spirits are so often flattered into and deluded by , that they bemoan themselves too late to be accounted either wise or recompensed . that ingenuous sir henry wotton is one of the livelyest instances of this , for that great soul of his which thought the emperour's jewel given him , but a narrow present for the countess of sabrinah's short treatment of him , was so eclipsed by the disfavour of greatness , that it was forc'd to publish inability to defray the charge of every day that came upon him ; and to bemoan his former greatness , the abridgement of which , caused his face to be wrinkled with care , and on another occasion , to complain that after a . yeares publique imployment ) he is left destitute of all possibility to subsist at home , being much like those scale-fishes , which over-sleeping themselves in an ebbing water feel nothing about them but a dry shoare when they awake , which comparison saith he , i am fain to seek amongst those creatures , not knowing among men that have so long served so gracious a master , any one to whom i may resemble my unfortunate bareness . i forbear the sad eclipse of the most ingenious chancellour bacon . these things i instance in , to shew the instigation men have from noble births to endeavour their conspicuities , and to bemoan the defeats of them , which the students of noble families are best thought to endeavour , who seek nothing more in their profession , then to be able to deserve many and good clyents , and to be great gainers by them , and so becoming honestly and fairly rich , and not shewing themselves like the causidici in claudius his time , venale genus hominum ; but keeping close to the law , and being faithful to their clyents , may be said magis aliis consimilis statûs hominibus nobilitatem curare , &c. in his revera hospitiis majoribus etiam & minoribus , ultra studium legum , est quasi gymnasium omnium morum . this the chancellour writes to shew the generous accomplishment of a noble student , whom , though he knows sent to the inns of court to be a professed lawyer ; yet he presents here as apt , by the quaintness of his general breeding to comply with all conditions of life , to which god , his genious and his opportunities shall most incline him to . now though here i have a fair occasion to humbly suggest my apprehensions of excellent perquisites to the study of the law , as to live soberly and retired , to study moderately and with method , to keep company sparingly and with choice , to frequent exercises both publick and private , to * practice leasurably and not too soon after his call to the barr , to be not greedy of fees till they be deserved , to counsel in causes just and lawful , and to discourage prosequution of the contrary , to keep his chamber , study , and courts constantly , to treat his clyents affably , and to hear them calmely , to stick to their interest if just , resolutely , and to settle himself to the consistence in these by a fit and convenient marriage . though i say i might enlarge on all these , which doe account highly to the studium legum , and are in effect but those three precepts of the law that bracton mentions ; yet i pass them over to avoid tediousness , desiring the student to remember that all these without gods blesssing on , his diligence cannot secundate it : for he that endeavours any thing without god , does but reti ventos venari . that then which i pass to , is that which besides the study of the law is learned in the inns of court , to wit , exercises of manhood , of ornament , and delicacy , of learning and activity . of the first sort are singing and playing n instruments very great additions to a gentleman ; for though musique seem to be but of an aiery and volatile nature , yet in the consequence of it it proves to be a very notable furtherer of the minds delight , order , and composure , which is the reason that the ancients prescribed musique not onely in civil , but sacred rites : and that not to make those mysteries light and jovial , but to draw up the heart and soul by every occasion of joy , and expressive agility to actuate it self upon that divine opificer , whence these powers and art to improve them come , and by whom they are ingenerated in us . this musique the text respects both as it is vocal and instrumental , cantare ipsi addiscunt ] saith the text. now cantare , is not bare modulation , or transition of the voice from grave to acute notes , and so backward , joyning thereto apt intervals and cadencies ; nor is it onely as a quintilian sayes , a noting of great things loftily , pleasant things sweetly , and moderate things softly , but it is a singing of celebration , and a mirth of grandeur and composedness ; cantare , quasi incantare & fascinare , to doe that by the voice which orators doe by words , surprise and captivate hearers , yea work conquests over their own mindes and passionss . this dulcimer of the voice , whether it be sacred or civil , is very effectual to excite the minde to all facetious pleasure , and to recruite it of those spirits which are exhaust by intentness and labour ; therefore the holy ghost by moses excites the people to praise god by singing exod. . . and in all the book of god , nothing is set forth as a devouter part of worship then vocal musique , sing unto the lord is the exhortation of every psalm ; yea in the primitive times singing of holy anthems and psalmes , was the peculiar character of christians , the heathens from this practice of the iewes uttered most of the praises of their gods and their heroe's by singing , which is so harmeless and tunable a token of foulary joy , that nothing can better testifie internal contentation and rapture then singing . whereas then 't is said , cantare ipsi addiscunt ] it means not rude and artless singing , for that is natural , ( being the expression of the air or breath from the lung , which invigorates and sonifies it ) but that which they learn is artly , singing by book and rule according to the gammuth , and the true position and order of sounds , to give every note its heigth and depth , and time its length and breadth : thus to sing , is to divide time into proper portions , and to observe order in the transports of our joyes , and this maphius vegius thinks so necessary to good institution , that nothing can be more graceful , nothing more worthy a free-man . for that a nero delighted in singing and jovialty was not his reproach , but in that he expressed it by such leud and vain singings , as savoured of obscenity and immoral lubricity , that was his abuse of singing . and therefore artly singing , as it is a very wholesome thing to keep the breath sweet , and has a taking acceptation with the ear and heart of all auditours ; so has it a very useful influence on the content of all actions . for as we are to eat , sleep , recreate , study in proportion ; so we are to be merry in due and convenient manner . nothing more rocks asleep and reposes , nothing more renders entertainments acceptable then singing , which is the reason that all treatments at meales , all festivals of joy are associated with singing , the pleasure of which does not onely in a sort disgest the meat , but affablize the nature of the communicants each to other , especially when hereto instrumental musique is added , which the text calls genus harmoniae . in omni genere harmoniae ] this is not so much winde and pipe , as touch and stringmusique ; not the musique that is loud , stentorian , and clamarous , as that which is sweet , silent and undisturbing : musique which goes so soft that it may sweetly note it in a ladies chamber , as the proverb is . this musique of the lute-viol , and the like , is that which becomes an inns of court , and an inns of court-man ; nor is there any thing in the world more disposes men to sweet and social temper ; then musique and voices , these by a pleasing and harmonious witchery , harmelesly sedate and surprise mindes to a delightful comportment with all humours , accidents , companies . nor are any men more acceptable companions then men of musical addiction ; for if orpheus as the poets fein , surprised trees , & arion fishes by their harpes ; if instruments well tuned , lay evil spirits in sauls ; and pacifie the distempers of brainless furies ; if this be the effect of harmony , to incline the eye to kindness , the hand and foot to agility , the ear to attention , the whole man to grace of behaviour , our court-man is to be accomplished therewith , and not to stay there , or come away thence without it . ibi etiam tripudiare ac jocos singulos nobilibus convenientes qualiter in domo regia exerceri solent , enutriti . as serious things become the manhood of nobles , so lighter and more active , their youth ; for as the year has her season of fruits and weathers , and the sea of ebbs and flowes , and the air of windes and rains : so the ages of men have their peculiar virtues and vices , and accordingly evidence the fruits of them . therefore as sedere , silere , studere , are the companions of age ; so are active recreations the treatments of youth . this the text alludes to in the word tripudiare ] that is , dancing or vaulting . tripudium , of old terripavium , after , terripudium , then tripudium derived from pavio , which is applyed to birds who are light creatures , and who hop up and down when they are lighted the wing , to pick up viands : hence dancing , which is a quick motion of the body here and there , is called tripudium ; so (a) livy and (b) tully both render it by saltare . which dancing perhaps was not as with us , by congees , paces , chases , boundings , vaultings , turnings , and other such gracefull demeanours as obsequious to the musique , make the merryment orderly ; but such a dancing as does ter pede in saltando terram ferire , as c turnebus well observes . of these tripudia there were sundry sorts , tripudia solestina and tripudia sonivia . with us we have onely french dancing and country dancing used by the best rank of people . morris-dancing is an exercise that the loose and vile sort onely use , and that onely in faires and meetings of lewdness : but the tripudare in our text is that decent , harmless , and graceful carriage of the body in all the motions of it , which answers the exactness of perfect majesty of gate and grace of comportment , for which men are said to be well-bred and well-fashioned , or of good behaviour , de bonne meane . this in these places is expressed in part by revellings . ac iocos singulos nobilibus convenientes ] iocus is properly verbal mirth , telling of romantique stories , and proposing riddles , exercising questions and commands , acting passions of love , which therefore is called courtship . these are ioci as to the notation of the word , though when the later clause is made to expound it such as doth nobilibus convenire , and as in dome regia exerceri solent , ] then it should be something more manly and dispositive to arms and activities , as fencing , leaping , vaulting , riding the great horse , running , these seem to me together with cards , bowls , tennis , and the like , which are exercitial of the minde and body , to be ioci within the text ; for these are much the repasts of nobles , and men that but for them know not how to spend their time , and that not unbeseemingly . for as solomon allows a time for all things , so have wisemen in all ages mixed with serious , jocose things , as conceiving an amability in the moderate medley of them . socrates the gravest of mortals , thus condescended to humour youth , not blushing to bear his part with boyes in their boyes play , which was such as was that sport , in arnudine equitando , d valerius maximus writes of ; and scipio is reported to please himself in acting his military and manly body according to the direction of the then musique , keeping time in his motions , not as effeminate persons use , saith seneca , to doe , but as of old athletique and pugillary men did , that is , on festivals and great appointments of recreation , they so manly vaulted , leaped , jumped and danced , that they would have been magnified therefore , had their enemies been spectatours and iudges . in ferialibus diebus eorum pars major legalis disciplinae studio , & in festivalibus sacrae scripturae , & cronicorum lectioni , post divina obsequia se confert . this clause remembers the virtuous and thrifty division of time , which the law of the inns of court in our chancellour's time directed , to wit , that the study of the law should not eat out god's portion of time , nor the reading and meditation of scripture , or converse with history , but that though the most time were allowed the law , yet those other necessary accomplishments were to be duely and in their proper time also intended . in ferialibus diebus ] that is , on common dayes , the six dayes of the week , none of them being holy dayes , which if they were , so many onely as were not , ought to be employed in the study of the law. to write of these feriae at large were to perplex this commentary ; and to little profit the reader . that onely that is necessary to insert , is , that in antiquity feriae were such dayes as were vacations from all ordinary labour , and had extraordinary indulgence allowed them , it being a cheif prerogative of them to be free and brisk in all disports and recreations that are not absolutely flagitious , the wisdom of legislators appointing them to be the releases of servants and men of toyl from the sowerer practices of life , as the encouragement of them to return to their drudgery more contentedly : which gave occasion to that saying of democritus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. a life without holy dayes was a long way without an inn. of these feriae there were diverse sorts , stativae , imperativae , conceptivae , nundinae ; of which tholossanus writes at large : so also mention is made of them in the (a) digest , and in (b) budaeus , and (c) , (d) others . that which the text is applyable to , is the designation of these feria to reading of the law : that is , as i humbly conceive , when the student has laid a good foundation the first three years , and laboured hard at the little books together with the register , which i take to be the best pointer out of original lawes , writs being the remedies of their violation , and thence importing original lawes violated , i say , ( with submission ever to the learned ) when the understanding is accustomed to the law , and there is in the student an habituation to the law ; then to repair on court-dayes to the courts , and there to take notes and observe the arguments and carriages of persons and causes therein , is very advantageous to the profit of the student , who there may learn much , and from thence bring it written down to his after-improvement . for to our student these feriae are no r●leif from study , as to other men they are from corporal labour : but they are diversions of the labour from the students body in repairing to the courts and intending the causes pleading in them , to his minde intent on his books in his study . for the text sayes not , he should by jollity and good fellowship refresh himself , as seneca sayes cato did , and therefore by memmins was railed at for intemperance ; but the text sayes that the greater part of the students do on common and court-daye devote themselves to the study of the law , that is , if they cannot hear law at westminster-hall , they will read it in their own chambers ; for law they will have that come and intend to be lawyers , whatever diligence they express and whatever pleasure they deny : for the very dayes of other mens pleasure is to them a time of great pains and expression of diligence . et in festivalibus ] of these i have written in the notes on the . chapter . these festivals were the sacred portions of time in which the honour of the gods , as the heathens phrase was , took up all the thoughts and actions of men ; and wherein they not onely sacrificed in token of religion , but also feasted and jollited in relation to the sweenting of life , which thence did receive much pleasing entertainment . hence every thing of delight and plenty they termed festivum and festivitas ; so tully calls a man of a pleasant and gay genius and humour , homo festivus , and terence sayes he has festivum caput ; and loci festivi and festivi ludi are frequent in plautus : when then in the (e) orator we read of festivitate igitur & facetiis , festivitas , splendor , concinnitudo in oratore , festivitate & venustate conjuncta vis dicendi , it is to remember us that the joy of festivals is no new thing ; but that which prudence in all ages has ordered to associate the plenty of it . and therefore christianity has allayed the mirth of excess with duties of devotion in both parts of the day at prayer hours ; and the student of the law , though he may keep his chamber post divina obsequia , yet after he has been at the publique prayers ( wherein his devotion dictates the most humble and un-pharisaical posture to him ) yet even his retirement and holy-day recreation must be reading of scripture and of history , that thereby he may know how as a christian and a good man , to demean himself . for the word of god being notified to man , as the declared will of his maker , and the law of his eternal soul , as by reading , understanding , and practising of it , it is able to make him wise unto salvation ; so by reading the records of past ages , he satisfies himself in the virtues , vices , humours , lawes and reasons of the transactions of them , and is thereby enabled to discourse of , and judge concerning the nature and impulses of the same . for as in order to the grace that leads to , and the glory that is in the triumphant world , the sacred scriptures are the surest oracle , and he that trusts to them shall never be ashamed or deceived , because they are not onely the power of god to salvation , but the light that shines in the darkness of errour and infidelity ; and discovers those things , that eye hath not seen , nor ear heard , nor hat entred into the heart of man to conceive or think of , which is the reason our lord charges his disciples to search the scripture , assuring them that therein they have eternal life , and they are they that testifie of him ; so in relation to this world so full of sin sorrow and dissatisfaction , the study of chronicles , in which ages long since past , are presented men as in then being , is the second best expence of time wisdom can possibly prescribe , since conversation with wise mens books and actions are no less instructive in wisdome then personal converse with them : which because men who are not contemporary with , or near livers to , or timelily acquainted with them , cannot have , history and record of them is onely able to become supplement to those great defeats , which sin on mans , and judgement on gods part , has incommodated mortality with , and against which there is no compensation but that of continuation , by which the excellent and immortal penns of heroique men , doe by histories in a sort eternize men and ages . which is the reason our text makes holy dayes spent in reading scripture before prayers in the morning , and history after prayers in the after-noon ( for so i understand divina obsequia as referring to the inns of court devotion-orders ) to be a most notable account of time , and the probablest engine to adorn a students life with piety and knowledge . ibi quippe disciplina virtutum est , & vitiorum omnium exilium ] this is a notable character of them , that the inns of courts are what luxurious athens was not , matres virtutum , novercae vitiorum ; for none coming thither but with a resolution to submit to the government of them , the government actuated by learned and prudent gravities , termed masters of the bench , is such as is modelled and conforme to virtue , and diametrally opposite to vice : hence is it that as the students were kept close to chappel ; commons , exercises , studies , so did they at their leisure , and at their recreation acquire such genteel qualities , as made their nature manly , their behaviour graceful , their language and writing courtly , and their conversation praise-worthy . to further them in which , by amotion of whatever might add fuel to the fire of vanity in youth , orders have from time to time been against long hair , hats , greatruffs and excesses of apparel , against riot in meat or drink , quarelling or fighting in the societies , and against all intemperance , by reason of which these studies of the law may well be written of , as here they are , ibi disciplina virtutum & vitiorum omnium exilium . ita ut propter virtutis acquisitionem , vitii etiam fugam , milites , barones , alii quoque magnates & nobiles regni , in hospitiis illis ponunt filios suos . it should seem by this , that the inns of court were in high esteem in h. the . time ; for they were then the trains of the flower of our youth , who are termed nobilium filii , hence the statute that mentions , prelates , dukes , earles , barons , saies also , and other nobles and great men of the realm . . r. . c. . which nobles by . e. . c. . are named lords , knights , esquires , and other noblemen of this noble realm of england , honourable and noble persons , so . mar. c. . for when travell was not so frequent as now it is , our gentry and nobility that then were bred at home in these inns , were as towardly to all purposes of warr and peace , counsel and conduct , as now travel makes them ; nay undoubtedly though some are much accomplished by it , yet many more are so tainted , by the liberty they have in it taken , that they never return to a sobriety of principle and practice , but are confirmed in a lawless latitude of doing and speaking their pleasures , to the confront of all moral and religious restrictions : hence come the frequent debaucheries and incontinencies of life , the vain disguises and transports of fashion , the prodigal expences and haughtiness of living , the ruining looseness of recreations and gaming , the manless disuse of activities and tilting , the great decayes of hospitality and house-keepings , these and other such like mischiefs ensue upon the frequent travels of our great men , who learn that liberty abroad that they never after refrain at home . indeed travel when men are of yeares , have conduct , and design it an accomplishment to their understanding , and accordingly employ it , is very soveraign to excellent ends ; but as it is afforded youth , and they by it are seduced from that gravity and sobriety , that more restrained breeding would acquaint them with , so 't is dangerously enervative of all future stayedness , which our ancestors well understanding , chose rather to put their sons , how well born , honoured and fortun'd soever , to these inns of court there to learn the mode of living , sutably to their quality , rather then to send them abroad , fearing nothing more , then the infection of forein toies and the tinctures of forein vices . but now the times are such , that the inns of courts are thought mean lodges for nobility and the eldest sons of gentry , who all goe abroad to travel , leaving the younger brothers or gentlemens sons of smaller fortune to inhabite them : so that the young inns of court-men of our age , are such as mostly study to profess the law , and by it become great and rich , which they well deserve to be who preferr a learned diligence and industry in a profession , before a vain sinful and needy idleness and latitude of life , which is so great a burthen to a noble and actively virtuous humour , as nothing can be more , since that onely answers the end of gods mercy to our beings , births , and lives , which enables us to glorifie him , benefit men , and serve our own fames , in the opinion of those that either knew us alive , or read us dead , which they will hardly ] with pleasure delight to do those who studied themselves onely as all persons of vice and vanity doe . ibi vix unquam seditio , jurgium , aut murmur resonat . ] these inns of court consisting of so many gentlemen of different tempers , may reasonably be expected to be variously acted , as the severalties of them in their predominancy , doe incline , but that the ingenuity and gentle submission of them to the government of their society , steers them to a more comely submission and conformity , vix unquam ] sayes our text , not nunquam ; for that has many times been . the youth have been ( as we may say ) in rebellion against the ancients , and the bar against the bench , but this is but seldome , and not durable , 't is nubecula cito transitura , soon up soon down ; though it be à sede itio , a shew of sedition , and seemingly a departure from the rule of subjection , yet when ever it happens 't is seditio levitatis non pravitatis , adolescentiae non malitiae 't is not seditio malevolentiae sed incogitantiae , not such an one , as being complicated with tacitus his acria jurgia , and seneca's rabiosa jurgia , with alta and fera murmura in propertius , minitantia murmura in lucretius , these formidable disobediences tending to violence and dissociation , are not the unhappinesses of the inns of court ; for our chancellours words are , vix seditio , jurgium aut murmur resonat ] that is , there is hardly any whispering or eccho of discontent , not so much as that noise of it , that the musical waters have in their gliding , vix resonat ] that is , contra sonantem imperium vix sonat seditio &c. as much as if the text had said , there is not so much hidden displeasure , as amounts to a mouth open against the orders of the parliaments & benchers of the houses , but all obedience is given them ; for that the governours are thought to be wise , and worthy , and to doe nothing but pro bono societatis , and the governed are orderly and submissive in demonstration of good examples , and civil breeding , which directs them to observe their temporary governours while they are under government , as they themselves when governours would be observed by puisnes , under government . delinquentes non alia poena , quam solum à communione societatis suae amotione plectuntur . this is introduced to shew that these societies are no corporations , or have any judicial power over their members , but onely administer prudential cures to emergent grievances , which being submitted to by the society , have ( by consent ) the honour and effect of lawes , and work onely upon the contumacious , by way of either discommoning them for light offences , or expelling them for greater , which way of reproaching and discountenancing irregularity was very primitive in the cohabitations of christians , in relation to religious and civil life ; for as they under persequution were inclined by grace to be of one heart and minde , the better to propagate their profession , and to adorn it with a sutable and peaceful conversation : so did they in prudence wholly agree the punishment of enormity within themselves , the civil magistrate neither protecting nor affecting them . from this dreadful punishment of excommunication practised amongst the jews , and from them in use amongst christians , have the societies of the law and colledges in universities , the course to put out of commons , which the apostle remembers in those words , if any man that is called a brother be a fornicator , or covetous , or an idolater , or a rayler , or a drunkard , or an extortioner , with such a none no not to eate . and this putting out of commons , or removing from the table , in the inns of court is often the punishment of unseasonable playing at cards and dice , making disturbances , disrespect to the seniors , &c. expulsion is for greater offences , such as are , breach of the peace , and violent assault of members of the society , or for refusal of conformity in payment of commons , or obedience to orders ; this so disgraceful to a gentleman , to be unworthy worthy company , is so great an awe , that nothing , ( no not the fear of death ) can be a greater awe almost to those generous spirits , then expulsion is , they well remembring that rule of honour , honor & vita aequo passu ambularent , since to be cut of from a society of men of worship , is to be infamous , and that remedilesly ; for so great a harmony is there between the societies of law , that a member expelled any one society can have no admission in any other , since the act of one house is ( in these cases ) in construction of the rest , their own act , as farr as their cooperation in the allowance of the punishment makes them ratificators of it ; so is the text , semel ab una societatum illarum expalsus , nunquam ab aliqua caeterarum societatum illarum recipitur in socium . formam vero qua leges il●ae in his discuntur hospitiis , hic exprimere non expedit . concerning the formà juris & studii , i have wrote something iu the notes on the eight chapter , though as the chancellour who knew undoubtedly much of it , discovers it but minutely : so i , ( who god knows ) know very little in comparison to his great proficiency , dare onely offer at it , as i hope i have here done very modestly . that which in this chapter i shall add , is only to recollect the chancellours sense therein , to wit , that the way of study in the inns of court , is very ingenious , and profitable to generous accomplishment , and that the lawes studied in the famous universities of france , anjon , cane , and others ( paris onely excepted ) are not entred into , and carried on by such well grown and manly gentlemen , as the lawes in the academies of the inns of court are , which that they may further appear to be the noble nurferies of probity , strenuity , honesty of manners , and law-learning , this following discourse , which i before thankfully owned to the kindness of sir witherington's impartment to me , will more evince , which verbatim followeth . to the most high and puissant prince and our most dread sovereign lord and king henry the eight by the grace of god , king of england and of france , defender of the faith , lord of ireland , and on earth the supreme head under god of the church of england , tho. denton , nic. bacon , and robert cary , his highness most humble and faithful servants , wish continuance of health , encrease of his most prosperous felicity , and right fortunate success of his graces most godly enterprises and purposes . where as , most dread sovereign lord , after that we had , according to your graces commandment , delivered unto your highness a book of articles , containing the cheif est exercises of learning , and orders now used in the houses of court amongst the students of your graces lawes , your royal majesty of a most princely purpose and godly zeal minding to erect an house of students , wherein the knowledge as well of the pure french and latine tongues , as of your graces lawes of this your realm should be attained , whereby your grace hereafter might be the better served of your graces own students of the law as well in forein countries as within this your graces realm : your highness therefore gave us further in commandment , that we with our most diligent endeavours should set forth , and describe unto your highness in writing certain other rules and exercises whereby your said students might , besides the knowledge of the lawes , be also expert and learned in the knowledge of the said tongues . we therefore , according to our most bonnden duties , for the satisfying of your graces expectation in this behalf , have in articles set forth herein such orders and rules both concerning the corporation of the same houses , and also the exercises as we think convenient to be put in ure and practice by your graces students . and this our rude and simple device we herewith offer unto your graces hands , most humbly beseeching your highness to accept the same in good part . and we further again most humbly beseech your majesty not to take it any wise as the doings of them that will presume or attempt to prescribe or appoint unto your graces incomparable wisdom and judgement , any rules or orders in this your graces most godly purpose : but we most humbly beseech your majesty to take it onely as a testimony or witness of our readiness and promptitude , according to our most bounden duties , in the diligent accomplishment of such things as your royal majesty shall will us to attempt or take in hand , submitting the correction and alteration thereof to the censure and most expert judgement of your graces most royal majesty . hereafter followeth in articles the manner of the corporation and elections , and of exercises of learning , together with certain rules to be observed in the king's graces house . first , the certain number of such as shall be the king's students , and of his graces exhibition to be limited by his highness . secondly , one ancient , grave , and learned man , and of no small authority , which either hath the knowledge , or at the least is a factor and furtherer of all such knowledges as are studyed and professed there , to be named of the king's grace to be cheif and head-governor over them ; and his name of corporation to be appointed by his highness . item , one in his absence to be a vice-governour , who also would be one as should procure the furtherance of all the studies indifferently , and be bounden perpetually to be resident , saving every year to have liberty of absence two moneths , but never passing three weeks together ; and that but at certain times when the least exercise of learning is in the house , except the governour be there . item , that the vice-governour in the time of his absence shall always appoint one of the company to supply his room . item , that of these three , that is to say , the governour , vice governour and students , or by such other names as shall please the king's grace , a corporation to be made by the king's letters patents ; and for a further and perpetual establishment thereof , that it be confirmed by act of parliament . the election and nomination of the governour , vice-governour , and students , to belong to the king's grace . item , his grace shall elect p. or as many as his grace shall think meet , of the most sage , discreet , and learned of all the students , to whom with the governour and vice-governour , the ordering and execution of all the rules and ordinances shall pertain , which shall be called the company , or such like name . item , that all ordinances hereafter to be made concerning this house by them , and signed by the king's grace , shall be as good and effectual as if it had been made upon the foundation and past by act of parliament . item , that all the king's students be sworn to observe the rules and orders of the house . item , that it shall be lawful for them or any two of them to admit to study , besides the number of the king's students , as many other young men which shall not have the king's stipend , as to them shall seem meet , undertaking to the governour or vice-governour for their good behaviour , so that they may be twenty years of age . item , that such shall be at a table and commons by themselves , and shall be bound to observe all the rules and learnings in the house ; and also be sworn at their admittance thereunto . item , that none be admitted the king's students under the age of two and twenty years . item , that whensoever the vice-governour chance to dye or be otherwise removed , the governour and company shall choose and appoint three out of the same house , or the other houses of court , as men most towards ; and the king's grace of the three to appoint one to be his student . item , that all elections and ordinances to be made as aforesaid concerning this house , there be present the governour or vice-governour , and six of the company at the least . item , if any of the ten , which is before called the company , chance to dye or otherwise to be removed , the governour and company to elect another of the king's students into his room ; and he to be ready the next vacation after his election , if he be elected one quarter of a year before the vacation , or else the next vacation after . item , that in all elections and ordinances hereafter to be made , the consent of the greater number to binde , and if they be equal , then that part that the governour taketh , or in his absence the vice-governour . item , that it shall be lawfull to the governour and vice-governour and five of the company at the least , to admit any young man of the age of eighteen years and under twenty to be a student , they being thereunto moved by some singular quality or excellency of knowledge that appeareth in him . item , that the king's grace shall appoint every of his students his ancienty , and after his ancienty to go by continuance . first , that every week three times , that is to say , on monday , wednesday , and friday , except festival dayes and their vigils , a mote be had in the house . item , that the inner barristers shall plead in latine , and the other barristers reason in french ; and that either of them shall do what they can to banish the corruption of both tongues . item , that three by the course of the company which shall be the most ancient , shall sit at the motes as benchers and argue unto them . item , that every man in commons shall keep his course in mote , as well as the king's students ; and this course once appointed by the governour to continue for ever . item , that none of the ten , called the company , shall be bound to mote , but as benchers to argue in them . item , that the mote be alwayes after supper , as is used in court. item , that after dinner every three , as they sit , to have a case propounded and argued unto , before they rise . item , that after supper , if there be no motes , three cases shall be propounded to the company by the other learners , and the puisne shall choose which of the three cases he will , and argue thereunto , and after him three at the least of the company . the first reading vacation the vice-governour shall read , and after him every of the rest in his ancienty . item , that none be called to be a reader , but onely the king's students . item , that after the ten have read , one after another , then he that read first to read in the lent-vacation ; and so every lent , one to read that hath read before : and every summer-vacation one that never read . item , that any reader during his vacation shall deliver to them whose course is to mote , such cases as shall be moted , new questions or old at his pleasure . item , if any the king's students refuse to read being thereunto called , except he have such reasonable excuse as the governour and company shall accept , to lose the king's exhibitions . the exercises are to be observed in manner and form as they here appear by the space of two years , and after in somethings to be altered in manner as hereafter shall be declared . in the term-time and vacations , every monday , tuesday , and wednesday , ( festival dayes onely excepted ) one of the excellent knowledge in the latine and greek tongue to read some orator or book of rhetorick , or else some other authour which treateth of the government of a common-wealth , openly to all the company , and to all other that will come for the knowledg of both the said languages ; and therefore it seemeth convenient that there be two of these . item , that this lecture be in the after-noon between three and four of the clock . item , that every friday and saturday in the term , and vacation at the same hour , one learned in the french , read some introduction , to teach the true pronunciation of the french tongue . item , that the first two years past , every mote that shall be brought in , shall in order go after this sort , that is to say , the first in good latine , and the utter barristers to argue in good latine so much as they can , and the second in good french ; and this to continue alternatim : and the benchers to argue in like manner after three years past . item , that the mean vacations after two years past , instead of motes , to have dayly declamations at the same hour in latine ; proviso , that none of the company shall be bound to be at this . item , we think it very convenient that they should have some house not farr from the city , where they might lye together and continue their study at such time as the infectiou of the pestilence or other contagious sickness shall chance amongst them or nigh their house . item , that during the lent-season the latine lecture to cease , and instead thereof from thursday after shrove-sunday till palm-sunday , even the same man to read an open lecture of scripture . first , keeping of concubines in the house to be the loss of his stipend : fighting in the house , expulsion of his part beginneth the quarrel , and finable for the other . if any be known for a notorious whore-hunter or common quarreller to be expulsed : playing at dice or cards in the house out of the twelve dayes in christmas to be expulsion . absence of any one , one week , at times appointed to be ' resident , without special licence to be expulsion , except he have a cause thought and judged reasonable by the governour , vice-governour and company . item , if any the king's students convey or steal any books out of the library , or be privy or consenting thereunto , that he shall be expulsed and lose the king's exhibition . item , if any other of the house consent or be privy to any such act , to be expulsed and committed to the fleet , there to remain without bayl or mainprize as long as it shall please the governour and company . item , all other offences to be punished by the discretion of the governour or vice-governour and company ; and that they shall have power to commit any of the house to the fleet , there to remain during their pleasure . item , that one of the butlers every saturday make clean the library , and clasp the books , and lay them in their places . item , that the governour , or vice-governour and company , shall have power to call counsel in the house as oft as they shall think fit for the preferment of good order , and reformation of offences . item , forasmuch as we think it meet , that such as should be the king's students should be seen expert in all civil things that are requisite to be known to do good and faithful service to the king's highness in the affairs of his graces realms and dominions ; we most humbly desire that it would please the king's majesty , that when his grace doth send any embassadours into any forein realm , that his grace would associate or send to wait upon the same embassadour one or two of his graces said students to be assigned by his highness , to the intent that thereby they may be more expert and meet to serve the king's majesty in such affairs , when occasion shall serve . item , forasmuch as it seemeth no wise convenient , that neither the politick government of this imperial realm , and the noble acts of the governours of the same , which undoubtedly are worthy of eternal memory and fame ; neither on the other side the detestable and divelish acts attempted against the common-wealth contrary to the express lawes of god and nature , and the due and just punishment for the same sustained , should in any wise o●her by negligence or lack of knowledge be drowned in forgetfulness or buried in ignorance , but that they should be rather chronicled and remain in histories for ever , whereby our posterity seeing ( as it were before their eyes ) the goodly access of so noble a government , should better provide for the security of this realm , we therefore most humbly desire , that it would please the king 's most excellent majesty to appoint two of his greatest students to put forth in writing the history and chronicle of this realm ; and they that shall be so appointed , to take an oath before the chancellour of england and the king 's most honourable council truely and indifferently to do the same without respect of any person , or any other corrupt affection : and also that those two or one of them when any notable arraignment or high treason shall be , to give openly evidence for the king's highness by the councils appointment , whereby they being so made privy to the matter , may the mor● truely and lively in their chronicles set forth the same . and whereas we think it very expedient , that such men should also besides their studies aforesaid , have some knowledge and practice in martial feats , whereby they may be able to doe the king's grace and the realm service both in time of peace and warr also . first therefore , that it shall be lawful for every the king's students to occupy and exercise at his pleasure shooting in a cross-bow and long-bow without licence and placard ; so that it be not prejudicial to the king's highness gamés . item , that whatsoever warr shall hereafter chance between any forein prince , that a certain number of the activest young men , and of no small discretion and soberness , to be appointed by the king's majesty , which shall amongst others repair into those parts not onely to view themselves the order and fashion of their camps , and assaulting and defending , but also to set forth in writing all the whole order of the battel , and this to be registred in their house and to remain there for ever . to the most high and most excellent prince our most gracious and most redoubted sovereign lord and king henry the eight , by the grace of god , king of england and of france , defender of the faith , lord of ireland , and supreme head on earth immediately under christ of the church of england , tho. denton , nic. bacon , and robert cary , his graces most humble and faithful servants , wish prosperous health and continuance of felicity . pleaseth it your most royal majesty to understand , that whereas your most godly disposition and tender zeal impressed in your most noble heart , both towards the advancement of the common-wealth of this our realm , and also towards the furtherance and maintenance of good learning , and the study thereof hereafter to be used in the same , your highness now of late commanded us , to our inestimable comfort and consolaetion , to assemble our selves together , and upon the diligent search and perusing of all the orders of the houses of court , compendiously to set forth unto your grace the best form and order of study practised therein , and all their orders and rules meet to be used and observed amongst them that profess study and learning : we immediately considering the godly effect and intent of this your meaning , tending onely to the right institution and education of your subjects of this your gracious realm , whereby they shall be undoubtedly as much unto your grace as to these natural parents , did not onely render hearty thanks to almighty god the onely authour of this your princely purpose , in that it hath pleased him to send us such a king and head to reign over us , that is not only endued and adorned himself with all kindes and sorts of good learning as well divine as prophane , and exact judgement in the same , but also to send us one that most endeavoureth and purposeth to set forward , and as it were to * ruyne the study and perfect knowledge thereof of long time detested and almost trodden under foot ; that this his realm in short time shall not be equal with other but far excell them , whereby not onely we that are in this present age , but the whole realm for ever , and all our posterities shall be most bound to him therefore . for in times past , yea in our dayes ( alas for pity ) how many good and gentle wits within this your graces realm have perished , partly for that in their youth ( the cheif time to plant or graft good learning in ) they have not been conversant nor trained in the study thereof ; but cheifly for that the most of them in their tender years , indifferent to receive both good and bad , were so rooted and seasoned as it were in barbarous authours very enemies to good learning , that hard it was , yea almost impossible to reduce them to goodness , but even like a fertile ground overgrown with thorns and bryars produced no good fruit at all . the redress therefore undoubtedly , most gracious sovereign lord , shall be the noblest and princelyest act that ever was enterprised or attempted in this realm . we therefore according to our most bounden duties have endeavoured our selves with all our wits and power to satisfie your highness said desired purpose and expectation . and now having concluded your graces commandment in all things as nigh as we can , we do offer the same here unto your most excellent majesty , most humbly beseeching the same to accept in good part this rude thing , submitting it to the most excellent wisdom of your majesty , whereunto we do and shall conform our selves , as to our most bounden duty appertaineth . the manner of the fellowship and their ordinary charges , besides their commons . first it is to be considered , that none of the four houses of courts have any corporation , whereby they are enabled to purchase , receive , or take lands or tenements or any other revenue , nor have any thing towards the maintenance of the house , saving that every one that is admitted fellow , after that he is called to the masters commons , payeth yearly . shillings . pence , which they call the pension mony , and in some houses , every man for his admittance , payeth . pence , and also besides that yearly for his chamber . shillings . all which money is the onely thing they have towards the reparations and rent of their house , and the wages of their officers . the whole company and fellowship of learners , is divided and sorted into three parts and degrees ; that is to say , into benchers , or as they call them in some of the houses , readers , utter-barresters , and inner-barresters . benchers , or readers , are called such as before-time have openly read , which form , and kinde of reading shall hereafter be declared , and to them is chiefly committed the government and ordering of the house , as to men meetest , both for their age , discretion , and wisdomes , and of these is one yearly chosen , which is called the treasurer , or in some house pensioner , who receiveth yearly the said pension money , and therewith dischargeth such charges as above written ; and of the receipt and payment of the same is yearly accountable . utter-barresters are such , that for their learning and continuance , are called by the said readers to plead and argue in the said house , doubtful cases and questions , which amongst them are called motes , at certain times propounded , and brought in before the said benchers , as readers , and are called utter-barresters , for that they , when they argue the said motes , they sit uttermost on the formes , which they call the barr , and this degree is the chiefest degree for learners in the house next the benchers ; for of these be chosen and made the readers of all the inns of chancery , and also of the most ancient of these is one elected yearly to read amongst them , who after his reading , is called a bencher , or reader . all the residue of learners are called inner-barresters , which are the youngest men , that for lack of learning , and continuance , are not able to argue and reason in these motes , nevertheless whensoever any of the said motes be brought in before any of the said benchers , then two of the said inner-barresters sitting on the said forme with the utter-barresters , doe for their exercises recite by heart the pleading of the same mote-case , in law - french , which pleading is the declaration at large of the said mote-case , the one of them taking the part of the plaintiff , and the other the part of the defendant . the whole year amongst them is divided into three parts ; that is to say the learning-vacation , the terme-times and the meane and dead vacation . they have yearly two learning-vacations , that is to say , lent-vacation , which beginns the first munday in lent , and continueth three weeks , and three dayes , the other vacation is called summer-vacation , which beginneth the munday after lammas-day , and continueth as the other , in these vacations are the greatest conferences , and exercises of study that they have in all the year ; for in them these are the orders . first , the reader and ancients appoint the eldest utter-barrester in continuance , as one that they think most able for that roome , to reade amongst them openly in the house , during the summer-vacation , and of this appointment he hath alway knowledge about half a year before he shall reade , that in the mean time he may provide therefore , and then the first day after vacation , about . of the clock , he that is so chosen to reade openly in the hall before all the company , shall reade some one such act , or statute as shall please him to ground his whole reading on for all that vacation , and that done , doth declare such inconveniences and mischiefs as were unprovided for , and now by the same statute be and then reciteth certain doubts , and questions which he hath devised , that may grow upon the said statute , and declareth his judgement therein , that done , one of the younger utter-barresters rehearseth one question propounded by the reader , and doth by way of argument labour to prove the readers opinion to be against the law , and after him the rest of the utter-barresters and readers one after another in their ancienties , doe declare their opinions and judgements in the same , and then the reader who did put the case , indeavoureth himself to confute objections laid against him , and to confirme his own opinion , after whom , the judges and serjeants , if any be present , declare their opinions , and after they have done , the youngest utter-barrester again rehearseth another case , which is ordered as the other was ; thus the reading ends for that day : and this manner of reading and disputations continue daily two houres , or thereabout . and besides this , daily in some houses after dinner , one at the readers board , before they rise , propoundeth another of his cases to him , put the same day at his reading , which case , is debated by them all in like forme , as the cases are used to be argued at his reading , and like order is observed at every messe , at the other tables , and the same manner alwayes observed at supper , when they have no motes . of those that have read once in the summer-vacation , and be benchers , is chosen alwayes one to reade in lent , who observeth the like forme of reading , as is before expressed in the summer-vacation ; and of these readers in these vacations , for the most part are appointed those that shall be serjeants . in these vacations every night after supper , and every fasting-day immediately after six of the clock , boyer ended ( festival-dayes and their evens onely excepted ) the reader , with two benchers , or one at the least , cometh into the hall to the cuboard , and there most commonly one of the utter-barresters propoundeth unto them some doubtful case , the which every of the benchers in their ancienties argue , and last of all he that moved ; this done , the readers and benchers sit down on the bench in the end of the hall , whereof they take their name , and on a forme toward the midst of the hall sitteth down two inner-barresters , and of the other side of them on the same forme , two utter-barresters , and the inner-barresters doe in french openly declare unto the benchers , ( even as the serjeants doe at the barr in the king's courts , to the judges ) some kinde of action , the one being as it were retained with the plaintiff in the action , and the other with the defendant , after which things done , the utter-barresters argue such questions as be disputable within the case ( as there must be alwayes one at the least ) and this ended , the benchers doe likewise declare their opinions , how they think the law to be in the same questions , and this manner of exercise of moting , is daily used , during the said vacations . this is alwayes observed amongst them , that in all their open disputations , the youngest of continuance argueth first ; whether he be inner-barrester , or utter-barrester , or bencher , according to the forme used amongst the judges and serjeants . and also that at their motes , the inner-barresters and utter-barresters doe plead and reason in french , and the benchers in english , and at their reading , the readers cases are put in english , and so argued unto . also in the learning-vacations , the utter-barresters which are readers in the inns of chancery , goe to the house whereunto they reade , either of the said readers taking with them two learners of the house they are of , and there meet them for the most part two of every house of court , who sitting as benchers ( doe in court at their motes ) hear and argue such motes as are brought in , and pleaded by the gentlemen of the same houses of chancery , which be nine in number , four being in holborn , which be read of , grayes-inn , and lincolns-inn , and lincolns-inn have motes daily , for the most part before noon , which begin at nine of the clock , and continue until twelve , or thereabouts , and the other five which are within temple-bar , which are of the two temples , have their motes at three of the clock in the afternoon . the onely exercises of learning in the terme-time , is arguing and debating of cases after dinnet , and the moting after supper , used and kept in like forme , as is heretofore prescribed in the vacation-time , and the reader of the inns of chancery to reade three times a week , to keep motes , during all the terme , to which motes , none of the other houses of court come , as they doe in the learning-vacations , but onely to come with the reader of the same house . the whole time out of the learning-vacation and terme , is called the mean-vacation , during which time , every day after dinner , cases are argued , in like manner as they be in other times , and after supper motes are brought in and pleaded by the inner-barresters , before the utter-barresters , which sit there , and occupy the roome of benchers , and argued by them in like forme as the benchers doe in the terme-time , or learning-vacation the readers and benchers at a parliament or pension held before christmas , if it seeme unto them that there be no dangerous time of sickness , neither dearth of victuals , and that they are furnished of such a company , as both for their number and appertaines are meet to keep a solemn christmas , then doe they appoint and chose certain of the house to be officers , and bear certain rules in the house during the said time , which officers for the most part are such , as are exercised in the king's highness house , and other noble men , and this is done onely to the intent , that they should in time to come know how to use themselves . in this christmas time , they have all manner of pastimes , as singing and dancing ; and in some of the houses ordinarily they have some interlude or tragedy played by the gentlemen of the same house , the ground , and matter whereof , is devised by some of the gentlemen of the house . every quarter , once or more if need shall require , the readers and benchers cause one of the officers to summon the whole company openly in the hall at dinner , that such a night the pension , or as some houses call it the parliament , shall be holden , which pension , or parliament in some houses , is nothing else but a conference and assembly of their benchers and utter-barresters onely , and in some other of the houses , it is an assembly of benchers , and such of the utter-barresters and other ancient and wise men of the house , as the benchers have elected to them before time , and these together are named the sage company , and meet in a place therefore appointed , and there treate of such matters as shall seem expedient for the good ordering of the house , and the reformation of such things as seeme meet to be reformed . in these are the readers both for the lent and the summer-vacation chosen ; and also if the treasurer of the house leave off his office , in this is a new chosen . and alwayes at the parliament holden after michaelmas , two auditors appointed there , to hear , and take the accounts for the year , of the treasurer , and in some house , he accounts before the whole company at the pension , and out of these pensions all misdemeanours and offences done by any fellow of the house , are reformed and ordered according to the discretion of certain of the most ancient of the house , which are in commons at the time of the offence done . first they have one called the steward , whose office is to provide the victual of the house , and hath for his wages five mark . they have three butlers , whereof the chief butler hath . shillings , every of the other hath for their wages shillings . they have three cooks , of which , the chief cook hath yearly pounds . the manciple , or stewards servant , whose office is to convey the provision of the house home from the market , and hath yearly shillings pence . the under-cook hath yearly for his wages shillings . the laundres of the clothes for the buttery , hath by the year shillings pence . and besides this wages , the three buttlers have in reward at christmas of every gentleman of the house pence , and some more . and at easter , the cooks and manciple have in reward , of every gentleman pence , or more amongst them . the whole fellowship is divided into two several commons , the one is called the masters commons , and there is the clerks commons . the masters commons amounteth yearly to nobles , or thereabouts , which is after the rate of shillings pence the week . the clerks commons amounteth by the year to five pounds six shillings eight pence , which is after the rate of shillings pence a week . these , most redoubted sovereign lord , are the most universal and general things concerning the orders and exercises of learning in the houses of court , which we thought meet to describe , and to present into your grace's hands ; and having regard to other particular or private things , we thought it not convenient to trouble your highness with them , partly , because of the multitude of them , and partly , because they are things of no great importance , or weight . chap. l. sedeum tu , princeps , seire desideres , cur in legibus angliae non dantur doctoratûs & baccalaureatûs gradus , sicut in utroque jure in vniversitatibus est dare consuetum , scire te volo quod licet gradus bujusmodi in legibus angliae minime conferuntur , & c. this chapter begins with a reference to the conclusion of the . chapter , where according to the order of the dialogue , the prince is introduced querying , why the lawes of england are not taught in vniversities , and why degrees inchoate and consummate are not conferred in them . now the chancellour being willing to let no query of the prince pass unresolved , after he has written of the academies of the law , ( ●inns of court and chancery ) which are the subjects of the . chapter , proceeds in this , to a replication in satisfaction to him ; that though the lawes of england do differ from the civil lawes in the names and kindes of their degrees : yet in the import and signification of them , they are sutable in every notation of desert and dignity , licet gradus hujusmodi , &c. saith our chancellour . datum tamen in illis , nedum gradus , sed & status quidam gradu doctoratûs non minus celebris aut solennis , qui gradus servientis ad legem appellatur . nedum status sed & gradus ] concerning this honourable degree , see my notes on the . chapter . the honour of serjeancy , as it is a state and degree in the law conferred by the king 's writ or patent , is not onely ( saith the late learned and honourable chancellour the lord coventry ) a very ancient state and degree , so ancient that books are as silent in it as in the commencement of the common law ; but also a very honourable one , the high reward of profound learning , spotless integrity , and notable fortune , and whatever tends to a jurists accomplishment . for besides that it is coupled in the stat. mar. sess. . c. . with the great men of england , and has place next to knights ; the clause of status & gradus in the writ amounts to some honour like that of knighthood , and conveys an addition of gentility importing name and bloud : and this makes it non minus celebris aut solennis then the doctorship of the law is . for though it has not been said that this degree has grand priviledges attending it as ludovicus bologninus has computed those of a doctor of the law , ( thanks be to him , who being himself a doctor has generously amassed and propalated the dignity of his degree . ) which none of the learned serjeants has ever , that i know , done to the lustre of their dignity ( being more intent on gain by it , then glory from it , which truely i beg their favour to say , is none of their greatest praise and emeritingest commendation , ) yet is there much undoubtedly to be said and written in exemplification of the renown and worship that is due to this state and dignity of the learned long-robe . now though i cannot serve them here in to the proportion i would , because to write of it strenuously and to the non ultra of the nature of it , would become a distinct work of some largeness , and a noble compiler of some more then ordinary industry and exactness , learnedly and with judgement to do it ; though i say i cannot undertake to write to the amplitude it calls for , yet so far as my tenuity can contribute thereto i readily shall , being a servant to all and a particular friend to some of them that are dignified with this state and degree : in testimony whereof , i shall crave leave according to the method of my comment , to write what i finde sutable to the matter of our chancellour's text , and apposite to be insisted on in the illustration of his language and meaning . the form of which solemnity of creation he thus describes . capitalis iustitiarius de communi banco , de consilio & assensu omnium iusticiariorum , eligere solet , quoties sibi videtur opportunum , & c this clause shortly abridges the ancient ( and yet in the main practised ) form of calling serjeants , from their travel and retirement in study to their reward and conspicuity ; which excellent men in our chancellours , as in all good times arrived at , not by any meanes less ingenious and worthy , then by the merit and reputation of excellent parts , constant diligence , stanch integrity , approved fidelity , which , because they best appeared to the judges , who best know and judge of them , therefore is the nomination , approbation , and presentation of such fit persons referred to them ( that is ) to the chief iustice of the common pleas . for that is the peculiar constellation of serjeants , and therefore the presentation , &c. is by the chief justice of that bench , with the advice and consent of all the justices , these all so concurring , doe eligere ] that is , the chief justice of that bench in the name of all his company , doth nominate and present such as he accounts meet to be serjeants ; for eligere here has not a notification of fixed designation , but of discreet presentation , upon which , though acceptation be usual , yet i take it as in the case of the speaker of the house of commons , to be gratiae not debiti , ordinis , non juris ; for the eligere solet here ] seemes to me ( but i ever beg pardon for , and shall recal , when i know my mistakes , which without gods mercy and mens pardon , will be many and injurious to me ) to be rather optionem alicui facere , at eligat utrum velit , as tully's words are , then any necessary cause of call thereunto , since i think persons so presented may be refused to be called , which they could not be , were the eligere soles unavoidably to be answered with acceptance . this then eligere solet ( as in the text referred to the chief justice ) is to be qualified with a quantum in se , juxta posse officii , and salvis praerogativis regii beneplaciti , and argues rather a favour , that accepts for orders sake the persons presented , then right and necessity of law and usage so to doe . quoties sibi videtur opportunum ] this is to be understood when the degree of serjeants growes thinn by death , or other disablement , when there are not enough to serve the king and his people in the great affaires of law ; for serjeants of old ( saith the lord chancellour coventry ) were men of learning and great cunning , who did love the law for the law 's sake , and intended their clyents cases for god , and a good conscience sake , in order to which heretofore counts and pleadings were received at the barr , and every little doubt was prepared and cleared by a debate there openly before either demurrer or issue were joyned , such was the care of the serjeants not to disadvantage their clyents cause , by any suddain or indigested conceptions , or by omissions or neglect , and then the prothonotary entre●it on record , thus that sage . whence i conclude that serjeants being so judicious and careful of mens causes , no causes were well handled without them ; and so there was a necessity of them in their number sutable to their consequence , to be continued : and therefore quoties sibi videtur opportunam referrs to the discretion of the court where they plead , to certifie the decay , and present a supplement of it , which succession ( though it may be in the numerical persons declined ) yet in the intent of it , to furnish the courts with able practicers , and the people with learned advocates is never departed from , but for the most part those very men called by writ , who are presented by the court , as fit for that state and degree . septem vel octo de maturioribus personis ] here i conceive is a definite number put for an indefinite , . or . for so many as shall be wanting , and shall be necessary to be supplyed , to the furnishing of the barr with serjeants ; for in the call of . e. . there were but eight , in anno b . temps , . h. . . in anno c . h. . . in the d . h. . eleaven , in the . e. . six . e in the . eliz. onely , f in the . eliz. eight , so all king iames , and king first 's time , and so in the late call , all which shewes , that the number of them was not onely . or . but as many more or less , as the king pleased ; for there being calls of grace as well as of necessity , the number purely at the pleasure of the king , for he it is that is the fountain of this , as of all other honour , and by his writ onely it is that the serjeants are called ad statum & gradum . de maturioribus ] as the duty of serjeants is , to counsel the king and people aright , as heretofore i have shewne ; so are their abilities to be sutable to this great trust and confidence the king and his●people have in them ; which that they may well discharge , the text sayes , the persons presented to be called , are de maturioribus , ] that is , those that by being docti & periti , as other where he calls them , are able and willing to counsel according to law and good conscience ; for though maturus in authours sometimes signifies festinus and repentinus , maturè , citò & ante tempus , saith donatus , soon ripe ( as we say ) and soon rotten : yet here de maturioribus ] denotes that settlement of judgement and ballast of solidity that poyses a man against every extreme , that which full ripeness and taking in time is in fruit ; thus maturitas senectutis as tully calls it , which is as much of perfection as nature can bear or arrive at : which is so much the glory of every thing in the apprehension of wisdom , that whatever is omnibus numeris absoluta is phrased by maturitas , thus a maturitas aetatis , b orationis , c virtutis , d sceleris , is used by tully . this maturity applyed to time is called a proper season , or a fit time ; and it is that virtue in men by which they do every action in weight and measure , so as neither too much haste , nor too great sloath dulls the visage and flats the edge of its design and success ; but that it is carryed on in an orderly and advisive way , and has all the advantages that art , nature , and experience can contribute to its production . this is the sense of de maturioribus ] when as a mans ascent to honour is expressed by maturè extollere aliquem ad summum imperium per omnes honorum gradus , so this learning of intellect in the law is the result of many years study and practice , whereby the student is perfected to become a judicious and well-advised advocate in all points of law-learning and right judicature , which the lord chancellour coventry terms the approved and best-worthy in every inn of court ; and our chancellour by qui in praedicto generali studio majus in legibus profecerunt . et qui eisdem iustitiariis optimae dispositionis esse videtur ] this eisdem iustitiariis explains the former clause , capitalis iustitiarius de consilio & assensu omnium iustitiariorum ] for because the chief-justice is the first and most eminent justice , therefore his act , when he delivers what he does with their consent and privity , is the act of them all ; which the law and custom of england purposely does to avoid errour and iniquity in judgement , and to transact judicial things with all their appurtenances by consent and concurrence of all those that are concerned in and entrusted with it . for since a serjeant is a person publick , and his qualifications , if such as they ought , are extensive in the good or evil of them , good reason many wise and worthy men should consider and report his fitness that is to that state and degree to be promoted , and that fitness in his government over his passions and his severeness of virtue and sobriety of life , which is optimae dispositionis videri within the text , and to be most worthy in the stat. . e. . c. . see my notes further on this in the . chapter . et nomina corum ille deliberare solet cancellario angliae in scriptis , qui illico maxdabit per brevia regis cuilibet electorum illorum , quod sit coram rege ad diem per ipsum assignatum ad suscipiendum statum & gradum servientis ad legem , &c. a convenient number of grave and learned apprentices or their fellows chosen by the justices out of the inns of court , the studium iuris , ] the names of them are to be presented to the chancellour ; who being the primum mobile of a subject , is the sine qua non to all good warrant and dispatch . therefore since all things that pass by the great-seal , are passed by this high officer of estate , all acts of parliament mention him the first in commissions ; and when any thing is to pass by the broad-seal , application is to him , who , under the king , has the power and custody of it ; and as the he , that according to his great and grave judgement , can either pass or stop it , as it seems good or evil to him : which considered , the usage upon creation of serjeants , to present the lord chancellour with the names of such in all or most of the inns of court as are de maturioribus , and can best perform the office of counselling the king and his people in gravioribus legis , is well declared by our text to be cancellario angliae ; for as he onely can , so he readily will ( no cause of the contrary appearing to him more then discovered it self to the judges that present them ) send forth writs to summon them to appear at a certain day , to take the state and degree of a serjeant at law. mandavit per brevia ] this shews how the persons presented as fit for serjeants , are summoned to appear to take their state and degree , to wit , by writ : not by paper-order , or word of mouth , or message ; but mandato brevis , that by a legal command , see the notes on the , and . chapters . which summons is not general to them all , as in case of witnesses many are put into a writ ; but for the greater publication of the king's regard to them , as to men of value and learning , a writ is sent cuilibet electorum : concerning this also see the notes on the . chapter . that which i add thereto is , that so publick does the law and usage of england account the honour of serjeanting , that the duty and solemnity of it is in no sort to be clancular and in hugger mugger , but openly at the court , and that in the due solemnities ; which when the serjeants of caroli did not observe , but whereas they ought to have presented themselves to the justices in robes of brown-blew , al. black-coloured , they came in their party-coloured robes , for which cause they were sent back again ; also they came into the hall , each of them having his servant bearing his scarlet hood , his coyff and cap before him : but that also being against course , ( for every servant ought immediately to follow and not precede his serjeant ) they were directed to go back again and return in their gowns of brown-blew , and then they recited their count , and had their writs read in term-time , by solemn procession of the inns of court with them : so i read the resolution of all the judges was i caroli . for as they are to take oath publickly , and count , and have their robes and coyff publickly put on ; so are they to keep their feast publickly , that all men may be witnesses of the king's grace to them , and their fitness for and resolution to discharge their place , remembering the modesty , fear , care , and conscience of those excellent men that were their predecessors , and endeavouring if possible to succeed them . et quod ipse in die illo dabit aurum secundum consuctudinem regui . as kings at their coronations give medals in token of their entrance on their government , and in memory of the lustre of their triumphs ; so have they indulged men of worth in favour with them to symbolize with them in such partial imitations of greatnnss , as are competible with their being subjects . thus did * antoninus philosophus out of his great respect to learned and brave men ; so probably did alexander , who loving ulpian and other learned men at his meals , and being pleased with the musick of their wisdom and science , thought no donary too magnificent for them . from this use of good kings and cheifs so to do , probably grew the example of our ancestours , and the use to our chancellour's time ( as i think ) for serjeants upon creation-dayes , to bestow peices of gold , artlyly form'd and inscrib'd , in token of their admission to honour by the king s favour , which i ground upon the former insinuations , and that which is additional to it in the text ; for notwithstanding there is mention of rings after in this chapter , yet here 't is said , dabit aurum secundum consuetudinem . but of this , as of all other the solemnities of serjeants , because our chancellour who was long an ancient of lincolns inn , under the name of fortescue senior , and i take to be serjeanted about the . of h. . thinks it too tedious to discourse , cum scripturam majorem illa exigant , as his words are ; i thereupon restrain my pen the labour to enlarge , referring the plenary satisfaction in it to such discourses as are purposely intended for illustration of it . one of the most punctual accounts whereof , that i have seen , is that of the manner of proclaiming edward the sixth , and making judges and serjeants , with the proceeding of the serjeants feast kept in lincolns inn hall e. . scire tamen te cupio , quod adveniente die sic statuto electi illi inter alias solennitates festum celebrant & convivium , ad instar coronationis regis . though our chancelour waves the less material solemnities , yet the main and most conspicuous he here describes , as first , the punctuality of the day of their appearance being the return of the writ , which is called dies statutus ; for as god did set apart diem statutum , his holy day , as that sacred time of his especial worship , which was in the end and mystery of it moral , and after by positive lawes directed other times for other services , yea as solomon from the light of nature tells us , there is a time appointed for all things under the sun : so all lawgivers in all ages , have consecrated set times to particular occasions , and from them not receded but upon grounds equivalent to the reason of their first appointment . in order to which our lawes have set dayes for set purposes : dayes of lent , rather leanth , when men ought to intend devotion , and other works of charity , for remedy of their soules , as the words of the statute . e. . c. . and the keeping whereof is rather in ceasing from sin , and abstaining from fleshly lusts , which fight against the soul ; then in bate abstinence from flesh , and so is expounded in the statute of . & , e. . c. . holy dayes , for calling men off corporal labour , and recreating them by the service of god , and pleasure of recreation . & . e. . c. . set dayes for rent those mentioned . h. . c. . for keeping courts , h. . c. . . e. . c. . . e. . c. . for the assises of novel disseisin , mortdauncester and darrein presentment . e. . c. . these together with dayes limited for paiment of bonds , election of officers , determination of nonage , as the law precisely looks upon the observation of : so also of appearances to answer suites , give evidence , and accept dignity , which day statuted by the return of the writ , the summoned doe observe and appear at , and then and there after oath taken , robes and coyf put on , and count rehearsed more consult & solenni , they return to some place of receipt and convenience , festum celebrant & convivium ] that is , as we say , they make holy day , and give up their study in sacrifice to the disports and entertainments of their friends ; they feast , and that convivando , as a testimony of their friendly amity , respects , and civility each to other , as common slips from one and the same stock , the humane nature . for though convivium , in the latitude of it be any familiar meeting , suppose for service of the gods , ( in which sense atheneus tells us , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. every convivation was of old in honour to the gods , and was celebrated with songs and hymnes , sacred to them : and tully tells us of gladiatorum convivia , which lollius was placed in . ) though i say , convivia signifie this at large ; yet here in the text it imports meeting onely for eating , drinking , and friendly delight each of other , and thus 't is applyed to the serjeants feast . which hospitable reception of the serjeants friends , and the great states of the nation called serjeants-feast , is a solemnity answerable to antiquity in all nations upon great occasions , whether particular or publique . thus we read of a lot's feasting the angels , and b abraham's feasting at isaac's weaning , of labaus at his daughters marriage , and c pharaoh's on his birth day , of d sampson , when he went to his wife , and ieroboam's feast , of solomon's feast at the dedication , and of ahasuerus his feast , of these feasts the holy story tells us . prophane authors also tell us of feasts , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is mentioned in homer , which turuebus comments upon , credo quod feriis hominum conventus celebris epulantium latitiâ coire soleat . grave and great plutarch confirms this , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. feasts are the communions of serious and merry words and actions , and therefore not all are admitted thereunto , but onely friends , who pleasingly and pleasantly eate , drink , and talk over their good viands . the same authour recites to us feasts that they had upon all great occasions , as their agrionia & amatoria festa , their bacchanalia , carina , carila , charmosyna , consalia , and almost twenty others of like nature ; and he brings in one rarely marshalling feasts , that is , not placing young and old , rich and poor by themelves , but so placing them , that those that abound may give to those that want , and they that want may be filled with the plenty of those that have more then they know well how to want or how to have . the latines also had their convivia upon great occasions , & those opiparous , and extravagant ; thus suetonius mentions claudius his feasts , not onely copious to the capacity of guests at a time , but very often and very publiquely , so e augustus , f heliogabalus , g carinus , (h) pertinax , (i) severus (k) marcus , and the rest , abounded in feasting , yea that famous or infamous feast in vitellius his time , in which there was ( as (l) alex. ab alex. tells us ) dishes of choice fishes , and of ●owle . from these , feasting came in use among the germans and us , who celebrated all solemnities with feasting , yea not onely the coronations of princes , installations of st. george's knights deliverances from evils , and victories over them , commemorations of magistrates anniversaries , consecrations of bishops , calls of serjeants , and such like great things are celebrated with feasting ; but even marriages of children , choice of officers in corporations , and every thing that is of a more then ordinary nature , is accompanied with feasting : and that not without much advantage to love , and riches moving to and fro in the nation by reason of it . amongst these notable feasts our stories remember us of that of h. . anno . kept in westminster-hall , for entertainment of the emperours ambassadour , who came for isabel the kings sister , and at christmas the same year , the treasurer havershill , by command of the king , caused on the circumcision day poor people to be fed at the same place but above all feasts , famous is that marriage-feast of richard earl of cornwal , king h. . brother , with the countess of provence her daughter , where there were told ( saith stow ) thirty thousand dishes of meate . add to these the feast of pentecost held by e. . anno . and that notable christmas one temps r. . at which there was spent . or . oxen , . sheep every day , besides fowle and other provision without number . so at the coronation of the lady katharine , temps h. . these and the like of later times have been great feasts . also of lord maiors feasts , not onely the yearly ones , of his as it were coronation , but that famous one of sir henry piccard , in anno . is honourably remembred . so are the serjeants feasts ( the discourse of which occasions the mention of all the rest ) those of , e. . , & , and h. . . h. . e. . eliz. eliz. and these latter in king iames and king charles , the blessed father , and king charles our now beloved soveraign's reign , are not beneath any of the former , being full of the noblest persons of the nation , furnished with the best cheer , graced with the best order that wit , art , and cost could set them out by . for as on feast-dayes , men have ever been cheery , recreative , and gay , wholly giving up themselves to pleasure and pastime ; so at meales of these dayes they have had all recreation imaginable , not onely that rodomontado prittle prattle ( as i may call that chat which comes to nothing ) making onely noyse , which seneca describes , but also sundry other , more pleasing and jovial freedoms , they eate freely , being entertained by those that did (m) facere lauta convivia , yea and those plenâ mensâ , they drank freely , taking it for granted that it was a rite due to feasts hilerare convivia baccho , they had singing and musique in their feasts . and though gravity ever discountenanced obscene cantings , and such loose sport as did obscenitate convivium obstrepere , as quintilian's phrase is ; yet joviality and mirth that was not purely vicious , all ages allowed , as that which repetita convivii laetitia does ornare & apparare convivium , as tacitus expresses it . i know the gymnosophists declined this , for they , as alexander ab alexandro tells us , appointed at feasts , that every one should make forth some action of theirs , advantageous to mankinde ; and he that could not , went away unfeasted , and the persians before meales did discourse of modesty , the graecians proposed riddles , and he that best unfoulded them had the reward , the spartans sang and played on the harp the praises of brave and dispraises of base men , the sybarites brought in horses so musically trained , that they would keep time with the instrument , and the indians and samnites were wont to fence and try skil and valour at sharps , yet the romans bringing in jesters and actors of mirth and abuse , probably occasioned our custom of having musique , singing , justing , tilting , interludes and mis-rule at and after feasts . thus publiquely as during their eating our great feasts have ever musique and singing ; so after , dancing and exercises . so our stories tell us e. . the maior and aldermen of london , justed against all comers in rogation-week , so h. . in whitsunday week , at the tower , so h. . at the marriage of q. eleanor , so at richmond , * h. . the like , n , h. . and o elizabeth , to welcome the french lords , tilting and other exercises were ; and to this day upon grand dayes , musique , masques , and comedies are : and all this to express the fulness of the joy and the liberality of the welcome , which is further advanced by what follows . quod & continuabitur per dies septem ] this shews that serjeants feasts are not misers ones , one meal and have done ; but as noble in their nature and plenty , so in their repetition and continuation , for a whole week , per dies septem ] concerning the sacredness of numbers i have discoursed in the notes on the , & . chapters . the number of all other is most sacred , not onely ( as before i have shewed ) from god's sanctification of the seventh portion of time to himself , which occasioned the iews to put a great value on the seventh moneth and seventh year ; but also for that this number was in their opinion a most compleat number , having a double three ( & tria sunt omnia ) and one over and above in it , and so seeming to be the peculiar number of excellency and weight , a number of capacity and emphasis . thus in solemn oaths they obliged each other by . so abraham said to abimelech , these seven ewe-lambs shalt thou take at my hand , that they may be a witness unto me that i digged the well , wherefore he called that place beersheba , because there they sware both of them : thus in reverences , seven times iacob bowed to esau : thus in mourning . so ioseph made a mourning for his father seven dayes : thus in eating of unleavened bread seven dayes , the last of which shall be a feast to the lord : so in sundry other things which are quoted in the margent . from this opinion of the number , the iews kept their great feasts for dayes ; so did solomon the feast of dedication mentioned king. . . which 't is said he kept dayes and dayes , that is but dayes in time , though in the solemnity , because as much bounty and great entertainment was shewn in that short time , as would have taken up twice the time had it not been extraordinarily improved ; this i collect from v. . where 't is said , the eighth day he sent the people away : which he could not have done had he kept the feast longer then seven dayes . and the nations hence observed dayes to betoken the grandeur of feasts ; so ahashuerosh his feast was for dayes , esther and the eunuchs that stood before him being 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as iosephus phrases them , were in number seven , with whose counsel the king feasted himself : which with other such things considered , the serjeants feast continuing for a week , which is dayes , is in the nature of it very sumptuous and costly . so it followeth . nec quilibet electorum illorum sumptus sibi contingentes circa solennitatem creationis sua , minoribus expensis perficiet , quam mille & sexcentorum scutorum , quo expensae quas octo sic electi tunc refundent , excedent summam duodecim millium & octingentorum scutcrum . herein the account of the whole , and every particular's expence at his call to be serjeant , is set down , scuta , which here if he means half-rose nobles at . s. . d. a piece , comes to . l. . s. . d. to each of them , which being multiplyed by . the number in the text mentioned to be called , it makes up the . marks here in the text ; which summe being in pounds . . . at s. to the pound , makes a great summe of money , especially in our chancellour's time , when though things were risen higher then in h. . time they were , ( when a measure of wheat for bread for men was by the king's officers valued but at one shilling , the carcase of a fat ox , . s. of a sheep , . d. and for provender for horses but . d ) i say , though in h. . time things were raised above this proportion ; yet were things then so cheap that this summe amounts to near as much as . l. now , and declares the state and degree neither cheaply come by , nor cheaply to be maintained , and therefore to become onely those who have law in abundance to answer the learning and duty , and estate enough to support the dignity and equipage of it . and therefore if it so happened that some were returned to be mature men , fit for their skill and integrity to be serjeanted , if fortune they had not , they could upon refusal but be fined , and that but once , which they were better to submit to , then take a degree to impoverish their family . for as honour is a beauty when it has fortune sutable thereunto ; so in the absence of it , is it a great burthen , which did men well consider , they would not when they have honour , squander away their estates the support of it : or when they have it not , desire honours to dishonour those honours and themselves by want of perquisites thereto . expence then they must be at , and a great one too , rather more then now-a-dayes ; for then serjeants ( as all other honours ) were fewer then now , and those onely had calls to them who were men of great estates , able to live like themselves in all points of greatness sutable to their degree , which was expensive not onely as to the quantity predescribed , ( which i take to be the charge of their robes , attendants , dyet , and equipage : ) but also further in donaries of rings which they are to give : so the text proceeds . quilibet corum dabit annulos de aur● ad valentiam in teto quadraginta librarum ad minus monetae anglicanae . this ( as i said before ) is to shew that publick inaugurations into honour , as it is accompanyed with feasting friends ; so those feastings are attended with donaries , probably peices of gold to some , and certainly rings to others . for as sovereign princes gave gifts at their coronations , as 't is said of ahasuerus , that at his feast he gave gifts according to the state of a king ; so he gave to his queen 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a city regis persarum uxoribus in calceamentum data , as grotius notes , that is , to buy her shoes and shoe-strings , like our saying , to buy pinns with . and as princes to this day do give medals and other money , and equivalent rewards at their coronations ; so do they indulge subjects honoured by them to bestow some such rayes of bounty as testifie their admission into greatness , and their mindes prepared for and fitted to it . these gifts our text names proper for the serjeants feast to be rings . annulus from annus the computation of time consisting anciently of ten moneths , whereof march was the first ; whence perhaps it follows that the reigns of princes , whose governments depend much on martialness , are computed from march the moneth of mars : or twelve moneths , as after the romans concluded it , making ianuary the entrance into them . i say this annulus the diminutive of annus being round as time in its motion is , is the emblem of amity , acceptation and honour . in this sense the giving of rings is not , but it is understood as a remembrance and token of friendship and love , (a) iure annulorum , a letting them into relation , and into a kinde of participation of honour with them . in authours i read of many rings , the (b) annulus sigillaricius which aurelian made for himself and his daughter ; the annulus fatidicus and the annulus pensilis fatidicus in (c) marcellinus ; their (d) annuli aestivi & hyberni , which were heavier or lighter as the season of the year was hot or cold ; and their annuli samothracii , which were of iron inlayed or welted with gold ; the annulus signatorius , which (e) tully relates to when he gives the charge it should not be made common , but be trusted in no hands but either our own or those we know to be faithful , and as such , love them as our selves . these were of old engraven with the device of figures in appropriation to families , like armes at this day ; and they were of iron to servants , of silver to libertines , and of gold to free-men hence was it that the cheif servants of conquerours had from them gifts of golden rings ; and embassadours from the romans , though they wore iron-rings ; at home , yet abroad wore gold-ones . by which appears , that as rings were tokens of relation , and rings of gold of nobilitation ; so these rings of serjeants import love , bounty , and freedom to all those they are sent to : nay , they imply an expectation from them to witness his marriage to the law , and his disposal of rings as his wedding-favour . for as women are wedded to their husbands by rings , and doctors to their profession by rings ; so is the serjeant evidenced to be wedded to the law by his donation of rings , as the ensign of his creation in the state and dignity of a serjeant . and these our text sayes cost the serjeant at least fourty pounds sterling , which is as much as near . pounds now , and no less doe i think the serjeants at this day doe spend annulis aureis , in their old-fashioned joynt rings . et bene recolit cancellarius ipse , quod dum ille statum & gradum hujusmodi receperat , ipse solvit pro annulis quos tunc distribuit quinquaginta libras , quae sunt trecenta scuta . this the chancellour introduces to shew that as he was not made a judge without the feast and charge of giving rings , when he was made a serjeant ; so he did not sparingly , but to the full proportion of his degree bestow those his serjeants rings : for though , when he was serjeanted , i yet cannot finde , yet i guesse it about the h. . which was . yeares before the year of that king , when i finde him by writ of the five and twentieth of ianuary , constituted chief justice , and so summoned , , , , , , , yeares of that king , yet that he was serjeanted is plain from this bene recolit cancellarius ipse , and from this charge he was at in it , which though it were great , coyn not being above / value of that now it is , yet may easily arise to the mentioned summ , when presentment of rings are as followeth . solet namque unusquisque servientium hujusmodi tempore creationis suae , dare cuilibet principi , duci , & archiepiscopo in solennitate illa praesenti , ac cancellario & thesaurario angliae , annulum ad valorem octo sontorum . this clause shewes the orderly distribution of the rings , made by the serjeants , according to the nature and quality of the personages they have to invite , and entertain . for the ancients , and we when we doe wisely and well after them , do not account our entertainment good , unless it be every way compleat , tempestivum convivium ; and varro as (a) a. gellius quotes him , makes four things to goe to the perfection of a right entertainment , good company , a fit place , a fit time , and order and plenty of every thing , all these are notably met at our serjeants feast ; for here are lecti homines , non homunculi , but hominum magnates , primaria capita , cuilibet principi saith the text. ] that 's of the kings family , either sons in descent or cosens , and of the bloud royal , who are all in the text intended ; for principes intends somewhat more then duces , or archiepiscopi , which none are in england , but those of the bloud , unless we 'll understand dux & archiepiscopus to be the species of princeship in our chancellours sense , which may and may not be ; yet i confess the arch bishop of canterbury his grace , as he has the title and place of a prince , so , as first after the king's children and his vicegerent has the chief place , and so in the statute . h. . c. . 't is every arch-bishop and duke , which precedency the religion of the nation has ever given , in ordine ad sacra . to minde them no doubt that as the nation honours them for god's sake , so they should love , watch over , and instruct the nation by holy life and sound doctrine for god's sake and the peoples salvation ; which while they doe , they will be worthy double honour for their callings sake . cancellario & thesaurario angliae ] these are the high officers of england , those that have custody of the seale by which charters , patents , and offices pass , and of the rents , incomes and profits of the crown , by which the expences of the kingly office is defrayed , these the statute of . h. ● . c. . sayes , being of the degree of barons , shall sit and be placed on the hether part of the forme on the same side , above all dukes , except onely such as shall happen to be the kings son , the kings brother , the kings vncle , the kings nephew , or the kings brothers or sisters sons . as they are of the great officers of england , and have preheminence and place accordingly , so are by our text , if at the feast they be present , but if not 't is sent them , ( and happy the serjeant whom they are pleased to accept it from ) a ring of . shillings . pence according to the value of our chancellour's age . et cuilibet comiti & episcopo ] earles , barons and bishops are ranked here together , and their rings are according to the abatement of their degree , a noble abated in their value , which is done for orders sake , that the presents may sute with the persons , and to reduce the charge into reasonable bounds ; for of the former rank there are but few in number , possibly ten may be the most in any time , not so many in most reigns , but of earles , bishops and barons many are , and therefore those present , or whom of them the serjeants please , have their rings sent them , to the value of twenty shillings . custodi privati sigilli , capitalibus iustitiariis , baroni de scaccario , ad valorem sex scutorum . these , though no barons , yet are of chief note and high honour in the nation , and brought in under equality of present with the former , and that for the height of the honour and trust they have in the transaction of judicial things . hence the prementioned statute h. . c. , ranks the lord privy seal ( whom i take to be the custos privati sigilli here , amongst the great officers next after the high chancellour , and high treasurour ; and the chief justices , and chief baron , being the proto-iudges of the high courts at westminster , deserve accounts with the best of subjects , no barons , and so are in all publique instruments of state declared ; and therefore when as in the statute of the h. . c. . omission was made of some of them , as to a chaplin , supplement was made by the . c. . and they allowed a chaplin to attend them in their house . omni domino baroni parliamenti , & omni abbati & notabili praelato ac magno militi tunc praesenti , custodi etiam rotulorum cancellariae regis & cuilibet iustitiario , annulum ad valentiam unius marcae . because differences there must be in rings , as there are in the quality of the persons to whom they are presented , and that rings of that breadth as serjeants rings are , cannot be in weight less then a mark ; therefore are all these particular persons here nominated , omni domino baroni parliamenti ] that is , to every member of the upper-house , under the degree of an earl , and that sits there en son proper droit , and is thither summoned , there to sit as one of the peerage , omni abbati ] which intends not onely abbots sovereigns , ( as they were called who were subject to no bishops but were within their monastery absolute , and were lords of parliament , and thither came as bishops did and doe ) of this rank in the parliament h. . there were . in e. . time onely . in e. . time , decrescente cleri potentia & aestimatione , onely . so they continued under from e. . time to the dissolution of monasteries ; for though there were in e. . more then the old . yet the roll of . sayes , istis abbatibus & prioribus subscriptis non solebat scribi in aliis parliamentis . et notabili praelato ] this terme might take in some remarkable person that is comprehendable under none of the former notions , other prelates stat . r. . c. . perhaps some deanes that had government , such as were those five , called by writ to parliament in h. . these or such like governours of some royal hospitals , being in a remote sense praelati notabiles , may be within the intent of our chancellour , as magno militi ] may be either a knight of great office in court , such as the honourable offices of the court were fitted with temps h. . ( for then lords and knights were rare and and unordinary ) or else such as were magni opibus & proficuis , men of great fortunes , families , and revenues ; custodi etiam rotulorum cancellariae regis ] see the notes on c. . fol. . whereby it appeares how great an officer this is , when as in the absence of the lord high chancellour , he is the first president ( as i may so say ) in the high court of chancery , and in the rolls in afternoons , orders causes that in court are not dispatched by reason of multitude of businesses , and interposition of circumstances of delay . similiter & omni baroni de seaccario ] these are the kings justices or judges , though otherwise named then those of either bench are ; for that the normans , who introduced that court into england , do call their judges and magistrates , barons , as we in england called them judges and justices ; which sir henry spelman instructs me in , not without great probability of truth : for the word baron signifies freedom and power to judge and determine matters within themselves , as it is understood in the title of court-barons , barons of london and the cinque-ports . these barons then of the exchequer are the same in power and honour with other * judges , and hold their places quamdiu se bene gesseri●t , which chief-baron walter , that prudent and learned judge held his place by to his death , though he were under displeasure , which if he had been patented durante bene placit● , he could not have done . the chief-baron of this court was in third's time a great peer , which is the reason that by the e. . c. . he is named next after the chancellour and treasurer , before the cheif-justices of either bench : but when he became a lawyer , as in our chancellour's time he was , then he comes , as in the statute of h. . c. , next after the cheif-justices of either bench. regis camerariis ] this i take not to be so much the great officers of the king's houshold , the high-chamberlain or vice-chamberlain mentioned in the statute e. . c. . r. . c. . as the chamberlains of the exchequer mentioned in the statute e. . c. . h. . called now receivers , anciently chamberlains ; fleta intends these in those words , habetis per hoc statutum de servientibus ballivis camerariis , & aliis quibuscunque receptoribus ; these giving dayly attendance on the king's revenue-affairs , are taken notice of by the serjeants , and presented rings to , as all other notable officers and men are in the king's courts , as registers , clerks of the crown , protonotaryes , philizers , and eminent atturneys , who if they do not all come under the notion of officiarii in curiis regis ministrant , yet are introduced under those words notabiles viri , and have rings according to their quality presented them . et ultra hos ipsi dant annulos aliis amicis suis ] still this augments the charge , for because the serjeant cannot invite all to their feast , and there present them with rings , therefore he supplyes the omission of one part of his friendlyness by addition of the other part , presentation of rings , which they make to those of their acquaintance , clyents and others as they call and treat as friends ; these , if any , are the true meriters of rings and hearts too , if truely friends they be . which our text intends not of that severe and solid friendship , which the moralist calls a most matchless good which works prepared hearts in each other to gratifie with all their might and main those they love , and to be wanting in no kindeness and representation their power reaches to , whose truth is so intense and conscience so upright , that a friend has cause to mistrust himself rather then them , i say , our text by amicis does not intend these , for these are none such'ss ; should rings be restrained to these , our serjeants would present but few : for i presume they , as other men , may say over seneca's words of gracchus and livius drusius , they have many great and rich friends but few true ones : but amicis suis ] imports acquaintance by ordinary civility and treatment of courtesie , friends of breeding and study with them , of kindeness and respect towards them . these friends ( as common notions of friendship pass and are understood ) are they for whom , besides what is ex debito as it were , ( as to the prementioned are to be given ) supernumerary rings are provided , and that according to their dignity and degree . which brings to my minde the analogy of the use in london , where the liveries of the societies feasted by the lord mayor & sheriffs ( whom they present more civitatis with gold , some more , some less , but the least to the proportion of two pieces a head ) have in the end of their year returned them a donary of a gilt spoon , either an ordinary one or a . l. one , or more , according to the magnitude of the present in return turn whereof it is . from whence , as well as from the serjeants feasts and presents , i collect , that feasts were anciently accompanyed with gifts , and those gifts of gold or gilt , as most pure , rich , and orient , betokening the wealth , integrity , and good will of the presenter . and in the serjeant's case surely the ring bestowed by him on his friends being of gold for the matter , and of orbicular forme , which is the figure of perfection , imports constancy and uninterruptedness in the study of the law ; to enable themselves whereunto , they should not onely content themselves to have read the year-books , but to read them again , that they may learn them better : and as they attend the kings courts for their practice , so to attend them for their learning , remembring still that the degree they have is the highest in their profession , and their learning ought to be sutable and proportionable to their degree , which is superlative . they are the words of a dictator in their study and learning , whose advice is apposite and serious . similiter & liberatam magnam panni unins secta , quam ipsi tunc distribuent in magna abundantia , nedum familiaribus suis , sed & amicis aliis & notis , qui eis attendent & ministrabunt tempore solennitatis praedicta , &c. as they please the eyes of some with the shew of their proceeding , and the ears of others with the gravity and learning of their counts and speeches , the fingers of some with rings , and the bellyes of others with good chear ; so do they cloath the backs of sundry with good and grave liveries . which liberatae , though they are not displayes of enfranchisement and independance , as * livery is , which is frequent in the law ; yet are badges of such graceful service , as men of great and good rank that are masters of themselves and of others too , notwithstanding submit to . and therefore though in the statutes r. . c. . r. . c. . r. . c. . h. . c. . h. . c. . e. . c. . . h. c. . h. . c. . e. . c. . liveries are badges of service , when we call a servant's coat his livery . yet in regard that in the statute of h. . c. . mention is made of the king 's honourable livery to the lords temporal , and to knights and esquires , and in the of the same king , c. . mention is made of liveryes to men of law. and in as much as at st. georg's feast , the lord mayor's show , and sheriffs appearances at assises to attend the king's iudges and deliver the goal , men of very good quality do put themselves for the honour of the persons they pretend to , in their liveries ; yea even princes themselves when at marriages and in camps they wear the bridegrooms favours or generals colours , are in a sort in their livery , as part of their train . and as it is part of the honour of the created serjeants , so no dishonour to their attendants , to attend them at this solemnity ; which is so much the more lustrous and compleat , by how much the more numerous and well-instructed the attendants be ▪ because accordingly is the shew and glittering of the pomp ; for according to the old english calculate , nothing became a great entertainment better then capacity of room , choice of guests , plenty and good cookery of dyet , neatness of linnen , grace and agility of attendants , orderly service of tables , mirth and repast at them , kindeness and sobriety after them , and a free and open welcome from the master of the feast . these are the gradations of pleasing feasts , to which if a great train of attendants upon motion of the master be added , all 's noble . as then it is liberata and unius sectae , that is , as it is a livery of one colour and kinde , to shew the state and degree of the master of them that wear it ; so 't is panni , to signifie not onely that wisdom favours and promotes native commodities , as wollen cloath is : but panni , to continue the memory of it for some time , and for some benefit to the wearer . for the serjeant looks not onely to his seven dayes wonder , and that done , cares not how few and small penny-worths the wearer has afterwards out of it ; but desires it may reside with and rest by him , as a monument of his creation . therefore it has been known that liveryes given upon this occasion have stayed by the meaner sort of men many years , though the better , after the solemnity , give them away ; for when their service ( by the expiration of the solemnity ) determines , then also their liveryes grow with them out of season . quare licet in universitatibus , &c. ] this is written to shew the charge , worship , and solemnity of a serjeant , which though it be answered by the solemnities of a doctor of the lawes , who has a creation as the serjeant has , and who makes a feast , and of old might give bonnets [ birreta ] round like his own , in token of sanctity and truth , as those virtues he is by his degree remembred of and required to express , and wears scarlet , &c. yet our chancellour sayes , he does not give gold and other presents as serjeants give . which though it be most true , and declares a greater and more popular splendor in his creation , then that of a doctor hath ; yet is the doctors creation to his degree very significant and solemn in every circumstance of it , as first , he is as it were crowned , with a round cap in signum sanctitatis & veritatis , by the figure of which he is taught to be sincere and unsordid , generous and scientifique ; then he has the books of the law delivered him , that he should remember to reade , observe , and practise according to the wisdome and justice of it : and this the doctors generally agree so necessary after the example of scripture chro. c. . , where 't is said , they brought out the king's son , and put upon him the crown , and gave him the testimony , which referrs as by the marginal note appears to deut. . . where 't is said , when he sitteth upon the throne of his kingdom , that he shall write him a copy of the law in a book or out of that which is before the priests , &c. i say , the doctors agree this so consequential , that without the delivery of a book of the lawes to him , he can be no doctor , quia in librorum lectione consist it doctoratus ; then he has a ring put on his finger , implying that by his degree he is sponsus factus verae philosophi●e & scientiae quam profitetur . for as by a ring given and taken , betokening faith and troth plighted each to other , marriage is solemnized between man and wife ; so by a ring at creation , the marriage of a doctor to his art is intimated : onely there is a difference of fingers between these two wearings of their marriage rings , the woman weares her ring on the fourth finger of the left hand , in which there is quaedam vena sanguinis , quae ad cor hominis usque pervenit , but the doctor weares it on the thumb , ut facilius testificari possunt sub suo s●gillo , then the doctor is set in a chair , and has his duty represented to him in pathetique words , proceed and goe out worthy and virtuous men , sit yee in the seat of virtue and science , not of vice and pestilence , and the chair he is created in has many notable depictions in it , all significant , in the inward part of it two young men , referring to love and labour , in the latter part of it , two virgins representing care and watching , in one of the sides thereof a young man girded about the loynes , carrying little ordinary things , intimating poverty or contentation with a little , as if humility were the onely way to seek and finde wisdom of science , in the other side is the portraicture of a man presenting a figure that flies away , noting , that life is short , and art long , and that if we would attain learning , we must banish all diversion and pursue it eagerly , then there is presented him a girdle of gold , and he is bid to gird his loynes with the girdle of faith , that is , to be faithful to the laws , and to his clyent , and not to betray his trust , no more then a souldier should solvere militi● cingulum , which he cannot honourably doe quia indecens omnino probatur , prius solvere militiae cingul●m quam cedat victori adver sitas praeliorum , then he is kissed on the cheek with a kiss of love , to minde him foedus pacis in facultatibus iurium servare perpetuum , these and such like rites and attendants there are to the investiture of a doctor of the lawes , which shew him in his degree not to be inconspicuous , but the contrary in all the degrees of scholastique lustre ; for of this rank and breeding of men , are the great counsellours , ambassadors , and ministers of state , almost of the world , and to these doe the names of grotius , budaeus , tholossanus , and others , famous for all good learning contribute honour , the doctors of the civil and canon-law , being as great masters of learning , as any or all other besides them have been , or are , which i mentīon as heretofore i have , not to claw them ( for that is odious to me , who proposing to write the words of truth and soberness , need not fear the brow , or , by any soft and adulating prècarinesses , beg the smile of any men ) but to clear to the world , that i prosequute nothing but integrity to all men , and all things of worth , and to own my collections in this and other my studies , from many authours , civil-lawyers ; by reason whereof i cannot but averr the doctors of the lawes , most eminent graduates and great masters , although that of the text here cannot be denyed . nec est advocatus in universo mundo qui ratione officii sui tantum l●cratur ut serviens hujusmodi . though servicus ad legem be a terme of state and degree , yet advocatus is of office and employment , concerning this see the notes on the eighth chapter , wherein the nature and honour of advocation is set forth . whereas then the chancellour here magnifies the serjeant at law , he is to be understood not to doe it in relation to himself , ( he being one of that degree , and a very learned one , i believe , as ever was before or since him , ) nor as vituperating and lessening the degrees of doctors , in which there are and ever have been as renowned wits , as serious judgements , as heroique minded men , as in any profession in the world ; no such pedanteriness is our great and grave chaucellour herein guilty of : but he setts out the oriency of the dignity , thus to advance the reputation of the law and the love of the nation to it , evidenced in that it has instituted , continued , and augmented , such an honour for men of great worth in the national and country lawes as is no where in the world , neque in reguo aliquo orbis terrarum datur gradus specialis in legibus regni illius praeterquam solum in regno angliae ] as if he had said , as england is by it self in its national law , which is favourable to freedom , tuitive of government , promotive of ingenuity , more then other lawes are ; so has it a peculiar honour for those that excell in the knowledge of it , above other nations , and sutable to the honour , indulges it a support , paramount , to that of any advocate in the world below . for though the advocate with the father , our glorious lord jesus , ( whom all the angels of god worship and to whom my heart in all humility asoribeth all the grace and glory it has or hopes for ) hath this name above every name , his advocation transcending all advocations , though he is ascended above the principalities and powers of mortal merit , and mortal glory , and has gained by his advocation , all power both in heaven and earth , all praise from men and angells , though he , that onely precious and prevailing advocate , who is at the right hand of god , comes within the tantum lucratur , which no eye can see , no tongue language , no pen discourse , no thought conceive , though he be in nature , perfection and exaltation , as farr above all the gainers in the world , as heaven is beyond earth , and no mortal is to be mentioned in compare with him , the immortal , invisible and onely wise advocate ; yet in all other respects , wherein mortal advocates have the greatest encouragements , this serjeant at law is not matchable , nec est advocatus in universo mundo , qui ratione officii sui tantum lucratur ] for as he is the onely pleader at the common bench , and the onely requested one in great pleadings elsewhere , in chamber-counsels , and circuits , which makes his cunning as a fountain ever full of the water of life , silver and gold fees , so that the circuits of some one of them have been more profitably valuable , then the practice of a great civilian all the year long , so have they by custome of the nation great fees , that their proficiency in learning and procedure in integrity may be encouraged ; and the best love they can express to their present renown and future peace , is to be earnest in prayer to god not to permit , and stedfast in resolution , not to take any temptation to the contrary , but to fear the blinde of a gift , and the terrour of a frown , as that which god hates , and men execrate , and alwayes to remember the tragical ends , and amazing death-beds of covetous caytiffs , who having not the fear of god , boggled at no villany that was gainful . while achan's wedge , and balaam's reward , haman's honour , and absolon's rule , iudas his treachery , and simon magus his prophanness are upon record , there will never want monitors to great gainers to be wary . that onely is sweet and found gain that is godly gain , and hath the promise of a gods blessing in a life of repute , and a death of hope . and to that end , the serjeant best endeavours that most followes the wise counsel of a chancellour , who to the serjeants gave this in charge ; strive and study to be more and more learned unto your degree , your advocateship is inseparably united , and that for whom and for whose use ? but for all the king's people , many millions of men : and for what ? for all their inheritances , their properties and their interests : and then what exactness and multiplicity of learning ought to be for the conscionable discharge of so great a duty ? thus that wise sage , which well observed by the serjeants , is the best way to preserve them well worthy of the great gains their care , skill , and fidelity accumulate to them above any other advocates in the world. nullus etiam , nisi in legibus regni illius scientissimus fuerit , assumitur ad officium & dignitatem iustitiarii in curiis placitorum coram ipso rege & communi banco , quae sunt supremae curiae ejusdem regni ordinariae , nisi ipse primitus statu & gradu servientis ad legem fuerit insignitus . as no man ordinarily is serjeanted till he be de maturioribus , that is , above sixteen years standing , or rather has read , ( i write according to the wonted course and the usual rate of men , allowing proviso's for extraordinary praecocious wits , or men of great birth , fortune and favour ; ) so no man , though he be de maturioribus , can be a justice in the king's courts till he be serjeanted : for serjeancy is the sine qua non to justiceship , upon the presumption that that degree obtained , learning , gravity , and integrity is sans dispute . this the kings of england have pleased to method themselves in , as the onely probable means to produce justices , iustitioe satellites , & iudiciorum optimi tam athletae quam gubernatores , that is saith the gloss , athletae in advocando , gubernatores in judicando , that is , every way compleat , both to a solid conception , a ready delivery and a sincere judgment . concerning iustices i have written in the notes on the chapter , & in fol. . also of their courts which are called here by our text supremae curiae ordinariae , as they are by the act of h. . c. . i have discoursed in the same chapter . that which the text gives occasion to add is from the word insignitus , which being a clarissimation or an illustriorating of him that has soulary virtue and professional merit , renders the serjeant , as step to a justicer , a most eminent person , especially when consideration is had that he and none but he , is admitted to practise and plead in that court , which one calls the lock and key of the common law , ubi omnia realia placita placitantur , saith our text , when all pleas therein flow from those nigri , purpurati , & coccinei seniores , who are no puisnes , but have exceeded two apprenticeships at the law , sexdecim annos ad minus complevit . ] not but that great learning may bring a man to the degree before that standing ( as it did scaliger in not much above ten years after his entrance at leyden to be a professor ; ) but nullus huc usque to our chancellor's time has bin called , but he that has intended so long the general study of the law : and that because as the duty requires learning , so the degree and state gravity and poyse , which is seldom in youth how towardly soever . for surely if any one deserved to be serjeanted before this standing , 't was famous littleton ; yet he was not called before he had read , but some time after , and so was no president for being serjeanted before sixteen years standing in study : though he was a man of ancient bloud , great fortune , noble parts , and general approbation , and therefore in e. . with the prince and other nobles he was made knight of the bath ; yet notwithstanding all these excellencies , he was not called to be serjeant till he had fulfilled and passed his sixteen years . et in signum quod omnes iustitiarii illi taliter extant graduati , quilibet eorum semper utitur , dum in curia regis sedet , birreto albo de serico quod primum & praecipuum est de insignibus habitus quo servientes ad legem in eorum●reatione decorantur . herein the serjeants degree is to the office of a justice necessarily precursive above that of a doctor to a bishop ; for he that is a graduate in the universities may be a bishop , though a doctor he be not : but no man how learned soever he be can be a justice , but he that is already a serjeant ; nor can he sit in the king's courts but with that particular habiliment of a serjeant , which ( with reverence to that noble dignity ) is in a kinde nayled to his head , i mean so fixed that thence it is not to be removed , no not ( i beg the boldness to say ) in the king's presence , this is the caul on his head called the coyff . the chancellour words it by birretum , others by birrus or birreta , tegmen capitis , pileus saith the codex theodos. it was permitted servants of old as a token their servility was on its last leggs , as we proverbially call service that is determining , after-times adopting the use of these night-caps or womens gear , as we may call them , into credit . these coyffs or caps became emblems of mastership , to which clemangis alludes in these words , non cappa ut in proverbio monachum efficit , nec cappae etiam aut cathedra birretivè impositi● , magisterium . in after-times they grew vary-coloured , cardinals had birreta coccinea , scarlet or purple bonnets or caps , bishops black , but serjeants at law these white ones : which though they now have impropriated to them , as one of the insignia of their degree , was of old purely sacerdotal : varro pedigrees it from the women-priests , who amongst the romans used it to cover their heads in sacrifice , so pompeius ; and turnebus makes it to be that coyff or caul that women do to this day tye up their hair in , their night-linnen called a coyff . the priests taken with these , used at nights to lye in them , or on travel to cover their rasure , and protect their heads from cold ; other then in these cases , by the constitution of othobo● , our priests might not wear them : but that they did wear them , and that to cover their rasure was plain from that which m. paris writes of w. de bussey , the evil counsellour of w. de valence , who when he was apprehended , and brought to make answer to the accusations against him , when his guilt made him answerless , and his impieties were not to be defended , voluit ligamenta sue coyffae solvere ( saith paris ) ut palam monstraret tonsuram se habere clericalem . from priestly men judges in courts of law about third's time this coyff descended with justiceship to lay-men , and from being made of open cancell-work , cut-work , ( such as in my memory women wore coyffs of , which in regard of the barrs and net-work of them , were what the hebrews call by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) it was made of silk birreto albo de serico in our chancellour's time ; but after , it became to be of cambrick the next to it in transparency , and thus to this day it continues . from which covering , white in colour , and pervious in the nature of it , we may conjecture the scope of it to signifie protection of the head to purposes of sanctity and sincerity , mindeing the serjeant to not onely fill his head with learning , but employ that learning to the establishment of justice , and the support of innocence against powerfull oppression and fraudulent subversion ; and it calls them to own themselves free-men from the frowns of judges , who sometimes brow-beat puisnes , and gives them liberty , as brothers of the long-robe , to speak boldly because weightily in a good matter . and this is the reason why the coyff being such an instance of sacredness and authority is called by our text , primum & praecipuum , de insignibus habitus . nec birretum istud iustitiarius sicut nec serviens ad ligem , unquam deponet , quo caput suum in toto discooperi●t , etiam in praesentia regis , licet cum celfitudine sua ipse loquatur . this is subjoined as a notable instance of this serjeants dignity , to wit , that whereas of old no man might come capp'd into princes or great mens presences , without a particular grant so to doe , which i collect from the use till eighth's time , when i read one mr. brown had letters patents , confirmed by act of parliament , to enable him to put on his cap in the presence of the king or his heirs , or any lord spiritual or temporal in the land , whereas i say no man might come capp'd into the king's presence without special leave , the serjeant privilegio statûs & gradûs might ; and the reason perhaps might be , for that the head of a serjeant , so full of law and learning useful to the king and his people , should suffer no injury by cold , nor appear no not with the defects of old age , or other accident , which might injure or diminish his reputation : but that he may retain that reverence that becomes so venerable a profession as the law is , and so grave a sage as he the serjeant is presumed to be . this may be one reason why princes permits these worthy persons to wear that in their presence to which they thereby command reverence from others , who are much ruled by the practice of their betters , especially of their prince , who not onely suffers these to appear before him coyff'd , but often speaks with them and is counselled by them in matters that concern his crown and dignity ; and even then when they are nearest him , licet cum celfitudi●e sua ipse loquatur ] they do stand capp'd and coyff'd which considered , and the lawes of england ( so conforme to the law of god , the law of nature , and the condition of england and the nature of the people of it , so prosperous in the peace , plenty , honour , riches , and universal advantage that it has in all ages produced ) while it is studied by brave men of parts and parentage , pleaded and distributed by learned and aged sages , and judicially declared by the upright and well advised masters of it , the reverend justices of the king's courts . all this i say premised , the chancellour humbly not onely conjures the prince non hae ●itare which of the lawes to love and chuse , but from the result of what the premises discoursed upon produce , to conclude , that for the piety of them they are pretiosae , being as the queen's daughter , all glorious within ; and for the reason , judgement and gravity of them nobiles , sublimes ac magnae praestantiae , and in the effect of them to the glory of god , honour of the king , and comfort of the people . maximaeque scientiae & virtutis , so he ; and i after him humbly conclude this chapter . chap. li. sed ut iustitiariorum sicut & servientium ad legem status tibi innotescat , eorum formam officiumque ut potero jam describam . having shortly described the material parts of the manner of creating serjeants , he proceeds from the step to the throne , the investiture of justiceship , which though it be no state and degree , but an express of state and degree in an office judicial ; yet is so farr an advance of dignity , as in worship and honour is not in the law to be exceeded : and therefore to what of it i have under favour of my lords the justices written of their dignity in the five and twentieth chapter , and in fol. i shall add onely that which the chancellour here gives me the invitation in the comment on him to doe , reserving the more plenary treating of them to some discourse purposely on that subject . in the mean time i follow my text. solent namque in communi banco ] here the chancellour begins by a modest condescension with the court of common pleas , so called because of the common-pleas there holden ; now though this court he presided not in , ( being chief justice of , and so placed in , the king's bench , which according to the learning of time and usage has the priority ) yet to evidence how little his merit stands upon punctilio's , and how trite he accounts rivalty between those paire of sisters that are to serve the king and his people in decisions of law and justice ( i would to god the same were the ingenuity of the members of both universities , and then they would honour not derogate from one another ) he writes first of the common-bench , which undoubtedly is not onely a most ancient court , not onely before third's time , but before r. the first , or even the conquerour's time . and as in the king's bench , pleas of the crown , and things concerning the king and subjects were and are tryed ; so in the common-bench real actions by original writs , are to be determined , and also common-pleas mixed and personal : and therefore as there being the high matters of law judged in it , so are the pleadings to be performed onely by serjeants . there is usually in this court , for the greater weight and more substantial carrying on of right judgement , quinque iustitiarii vel sex ad majus sayes the text ] ma●y , for in the multitude of counsellours there is safety , and five an uneven number , that the ballance may be preponderated by the odd voice , and so decision of the courts judgement be . of old it should seem by our text there may have been six , which master cambden does not deny in those words , the iudges there , are the lord chief iustice of the common-pleas , with four iustices assistants or more , as the king shall think good ; but that there have been in late reigns any more then five with the chief iustice , i cannot finde , but sometimes there have been fewer . et in banco regis quatuor vel quinque ] this court is the first of the high courts ordinary of law , called the king's bench , because the kings of england have there sat as presidents in proper person , which is the reason the returns in it are coram meipso , and because also it peculiarly holdeth pleas of the crown and such other matters which pertain to the king and the weal-publique , and withall ( saith master cambden ) it sifteth and examineth the errors of the common-pleas . anciently this court followed the king's court , for it was kept-in aula regia , whence the prementioned cambden tells us , they were called lawyers of the palace , and justices of the court , and iustices assignes de nous suer . the justices of this court sir edward cook calls the sovereign iustices of the oyer , and terminer , goale-delivery and conservation of the peace in the realm , so was the resolution of the judges in the lord sanchars case , and the chief justice of it called by the patents of kings capitalis iustitiarius regis , & capitalis iustitiarius ad placit . coram rege tenend . the king 's chief ju●●ice of england ; so in the statute of & h. . c. . h. . c. . but the stile and authority which this high officer , called iustitia angliae in third's time had , was altered temps e. . not onely in the power , but in the name and ground of his power from iustitiae angliae , to capital . iustit . regis , and from patent to writ ; so that though the rest of the judges of the king's bench have their offices by patent , the chief justice is constituted by writ , and therefore when in e. . 't is said , that a man cannot be justice by writ , but by patent and commission , it is to be understood of all the judges , saving the chief iustice of this court , see more of this in the instit. c. . now in this court there has been , sayes our text , justices quatuor vel quinque ] so has the number mostly been besides the chief justice , both in the reigns of king iames , the last king , and such the number now is ; which justices of the king are of so great sway with the nation , that they not onely settle all suits and causes in their benches and circuits , but their resolutions are of high authority , not onely inducements to parliamentary declarations , as in the stat. de bigamiis e. . but also in arduous scruples upon lawes , and the interpretations of them , which appeares in the quotations of them every day as law , and in the allowances of our kings in all times , that their resolutions are law. which lessons all men to honour the judges , and all pleaders before them to demean themselves with judgement , sobriety , and law-learning ; for as much as they are the ordinary lex loquens , and next to the books , according to which they ( having the morning light , which is the defecate light of knowledge ) doe speak , and therefore are to be diligently heard , and reverendly observed . ac quoties eorum aliquis per mortem vel aliter cessaverit , rex de avisamento concilii sui eligere solet unum de servientibus ad legem , & cum per literas suas patentes constituere , iustitiarium in loco iudicis sic cessantis . as life , merit and choice makes a justice ; so death , demerit and disfavour discharges him . when therefore any of the king's justices doe die by age or sickness , being perpetuo languidi , or otherwise are superseded , as by writ under the great seale , i suppose they may , though made iustices , they are (a) said not to be by writ , but by patent or commission ; and as that learned and upright judge , sir george crook upon his humble petition , by reason of his very great age honourably was , and as sir randal crew car. . sir robert heath , and sir edward cook car. and others have upon sundry reasons been , which is per mortem vel aliter cessare ] then the king , whose the justices places are , and in whose place , and by whose power they administer justice to his people doth elect new ones cum avisamento concilii ] for the king having divers councils his commune concilium , his magnum concilium , his privatum concilium , his iudiciale concilium , is said to doe what ever he does ex avisamento concilii , that is , by advice of his council , secundum subjectam materiam , as in state matters out of parliament of his privy council so in law-matters by counsel of his judges . now this avisamentum concilii sui being referrable to the choice of a judge , who is a person of law , and proper to be scanned by men of law , though the councils of the king in the former notions are not excluded ; yet avisamentum concilii seems to me chiefly to respect the judges , from whom the king understands the fitness of persons in that office to serve him , so as he be ( and other then such , they will not nominate ) unus de servientibus ad legem . for though i know the patent or writ to make them , does not term them serjeants that are so , or make them serjeants if th●y be not such ; yet no man can be a iudge unless he be a serjeant of the degree of the coyff , vnum è servientibus ] if not a serjeant long before , as of old the senior-serjeants in regard of their great experience were ( i presume ) advanced ; yet a serjeant when advanced , though but so created the day before advancement . et cum per liter as , patentes constituere ] these letters patents are writs under the great-seal ; directed to him or commanding him to attend the office of chief-justice , or justice ; and they are called letters patents , because the king's pleasure and judicial command and power is patefyed in them : and they issue forth from the chancellour who is termed secundus à rege in regno , and according to fitz-stephen , is enabled , vt altera parte sigilli regis , quod & ad ejus pertinet custodiam propria signet mandata , they are the words quoted by sir edward cook. and this being done more solenni , and to preserve the king's power in a due exercise of it towards his people , is a very provident supplement to death , decay , or discharge . et tu●s cancellarius angliae adibit curiam ] what the chancellour has sealed privately he owns publickly . and that the justice to be made may more seriously consider the king's grace , and the people more respectfully reverence the king's justice , the great chancellour , who is keeper of his seals ( for in h. . time there were three seals in the custody of the chancellour who is ) the signer of his grants , the presenter to his promotions , the judge of his equity , the general oracle to all orders of men condescends to come from his high court the chancery , which is alwayes open when other courts are shut , out of term , to the court where the justice is to be placed , adibit curiam ubi iustitiarius sic deest . ] et sedens in medio iustitiariorum ] 't is not stans for that 's a posture of ministration and request , but sedens ; for as that is the station of pleaders , so this of judges : advocates stand at the barr to plead , but judges set on the bench to judge , sedere , quasi seorsum erectè caeteris seperari , so tully uses the phrase . sitting is a posture of consideration and intentness , hence servius renders that of celsa sedet eolus arce by id est curat ; and plautus when he brings in the servant saying to his master , sine ut juxta aram sedeam , & meliora consilia dabo , hints to us , that sitting is a posture of solidity and judgement , post designatas coeli partes à sedentibus captantur auguria . hence is it that in scripture god is phrased to set upon his throne , is. . . ier. , , &c. and christ iesus is said to sit at the right hand of god , and his apostles and martyrs are promised to set upon thrones judging the twelve tribes of israel . so that the texts sedens ] imports possession by a kinde of temporary right : as the king 's high delegate he sitts , to betoken judicial prerogative ; and in medio iustitiariorum because of official excellence . for as if there be but two , the right hand is the place ; so when there are three or more , the middle or centre is the place of dignity : because it is that whence , as from the centre , the lines of circumvallation move , and wherein they are united . therefore the latines oppose in medio esse to obscurum ; so tully , dicendi omnis ratio in medio posita , and ponam in medio sententiam philosophorum . and surely when the moralist has written much of placing at meetings , and determines the propriety of primacy , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to virtue and dignity ; yet in that he brings in democritus chusing the middle place , he intends the notification , that the middle being his choice was by him accounted the best , quia virtus in medio . from the consideration of this dignity of the middle , as the most conspicuous , we read that god is often in scripture expressed to appear in the midd'st , so out of the bulb , exod. . , . & c. . . so in the midst of the camp , numb . . . out of the midst of the fire , deut , . , out of the midst of the darkness , deut. . . god is in the midst of her , psal. . . thou o lord art in the midst of us , jer. . . the holy one in the midst of thee , hosea . . when our lord iesus , the judge of quick and dead , is said to be in the midst of them that are gathered together in his name , matth. . . and in the midst of the two thieves on the cross , john. . . and when he appeared to his disciples after his resurrection , he stood in the midst of them , john. . . when he is said to stand , and walk , and set his throne in the midst of the seven golden candlesticks : sure all these signifie not onely special and eminent presence , but also authority , majesty and every thing that is transcendent . and therefore sedens in medio iustitiariorum ] here , is enunciative of the chancellour's dignity , in that he sets in the courts of law not as a stranger , who by the courtesie of the court has the best seat ; or as parning chancellour to e. . did , to debate matters of law : but as the king 's chief minister of state to dispense the king's grace in a graceful and majestique manner ; that from the solemnity people see in the constitution of a judge , they may learn to reverence him : and the students of the law may be excited to diligence and virtue , that they may be in due time honoured with the bench , as well as fitted for it by the barr. but it follows . introduci facit servientem sic electum , cui in plena curia ipse notificabit voluntatem regis de officio iudiciario sic vacante . till the chancellour be sat in the court , the serjeant appears not ; for the intent of the solemnity being to magnifie the grace of the king and the office of the judge , the best means thereto is to do it plena curia , when there is the greatest appearance both of judges , officers , and auditors , which then being , when the chancellour is fat , the to be promoted serjeant appears , and then the chancellour , who is alwayes a man of learning and oratory , declares the king's favour to his people in supplying them with seats of judgement , and with judicious and just sitters on them : and that in such a number as sutes best with the expedition of justice , and the prevention of delay , errour , or iniquity ; yea , who continually provides against the supersedals of death , impotency or demerit , by additional justices to compleat the necessary and usual number . and this as an act not more of policy then good will , for 't is voluntas regis that determines the office and alters the persons officiating as judges in the courts ; and that because the courts are curiae regis , and the lawes are leges regis , and the justices being iustitiarii regis nothing is more reasonable and just , then that the king should do , as to this , what he will with his own , that is , what he kinglyly and legally by matter of record ( his legal will ) pleases to do with his own . which though it be in this case contrary to the tenents of disorderly times and tempers , such as were those temps h. . where the provisio magnatum sayes contrary to this text , ravelling out the good pleasure of the king into the pleasure of the subjects ; yet the very authour that relates this , adds a notable censure of it , as usurpation upon and injury to his sovereign grandeur and propriety , tot enim in anglia reguli , ut videantur in anglia antiqua tempora renovari : but enough of this . the language of the text is more law and reason when it tells us , the chancellour does notificare voluntatem regis de officio iudiciario sic vacante . et legi faciet in publico liter as praedictas ] this is done to shew the reason of his coming to the court , and the warrant for this his performance in the court ; for as the king calls a man of worth to a publick charge ; so he signifies this pleasure of his by a publick instrument , publickly read , that all may witness the lawfulness of his title , that being sworn and placed , sitts and judges . for as the patent read declares what the king's will is ; so the oath read and administred which is that of e. . shews him what he is to perform in duty to the king and his people , to the king he takes the oath of allegiance kneeling , according to the stat. iac. to the king he takes the oath of justice standing : which done , cancellarius sibi tradet literas patentes ] before he be qualified by taking the oaths previous to his trust , he has not his patent delivered , and so no admission to his judicial office . for though the sealing of the patent seems to give him jus ad rem , that is , an inchoate right as it is explanatory of the king's favour , and an allowance of his conceived fitness ; yet till he have testified his subjection to the king and the law , and bound himself by the oath of god to be true to his trust in all the particulars of it , the jus in re commences not , for that is perfected by the delivery of the patent to him : but when he has to his submission to the terms of his acceptance and duty , satisfied the chancellour and the court , that he is the man he is taken for , then his title is delivered him , and he enters on his charge . et capitalis iustitiarius curiae assignabit sibi locum in eadem , ubi deinceps ipse sedebit . when the king's chancellour has performed what for the king's honour and his peoples good is , to be as farr as prudence and piety can secure and render them in their honest performance undoubted , then he recedes leaving the formalities that are purely local to the order of the court ; the chief iustice , who is the chief actor in the court , then places the new judge ( but here is nothing preposterous , but every iota appointed in the solemnities ) in the place where he must sit , which being according to the seniority , for i take it , the vacancy ordinarily advances the next to it , the judge is to sit there till he have room made higher for him , by which , emulation is prevented , and love between the iustices of the court preserved . sciendum tibi est , princeps , quod iustitiarius ifte inter caetera tunc jurabit , &c. this is a summary of the juramentum iustitiariorum e. . and it consists of those heads , which comprehend the pious and plenary dispatch of justice , freely without sale , fully without denyal , speedily without delay , which though it were declared in those words , nulli vendemus , nulli negabimus aut differemus iustitiam vel rectum ; yet is more fully here charged on the judges , who as the king's distributers of it to the people , by the force of their oath are to doe as followeth well and lawfully to serve the king and his people in the office of iustice , to warn the king of any dammage , to doe equal law to all his subjects , to take no reward of gold , silver , or any other profitable thing , ( meat and drink onely excepted ) to give no counsel where the king is party , to suppress breakers of the peace and contemners of the law , to maintain no suite or quarrel , to hearken to no letters or commands to delay or deny iustice , to procure the profit of the king and his crown , with all things where they may reasonably doe the same . this is the sum of the oath which our text insists on , as that which must not onely be the bridle of restraint to judges ; but the confidence of the people , that they shall live under a law so dispensed in all godliness and honesty . for therefore is the subject of england rich , free , secure , and what not that is emulable ; because his prince pleases to rule by the lawes , which lawes are distributed by such justices as fear god , and reverence man no further then they reverence god in heaven , and the law on earth , which is the true and during support of sovereignty and subjection . sciendum etiam tibi est , quod iustitiarius sic creatus , convivium solennitatemve aut sumptus aliquos non faciet tempore susceptionis officii & dignitatis sua , cum non sint illa gradus aliqui in facultate legis , sed offi●ium tantum illa si●t & magistratus ad regis nutum duratura . here the text tells us , that there is no cost of presents , entertainment or equipage at this advancement of a serjeant to a justiceship ; and the reason why none there is , to wit , that the cost of solemnities attends degrees , dignity and state of honour conferred on a person , from the result whereof others , attendants , relations and friends are seen in service and gratified for it : but justiceship being onely delegation to an office executable by and determinable at the pleasure of the king , there is no degree proceeded in beyond that of serjeant , but an additional faculty to express magistratiquely and with judicial authority , the learning of law , that in the serjeant was seen in pleading , and now may further appear in judging . it is true , in the case of bishops it is otherwise , for though when they were doctorated they kept feast ; yet shall that not excuse them , but at their consecration , they so shall doe also , because they are admitted into a superiority of order , and have a dignity of temporary baronage , though not personal , yet in the rights of their sees , and are therefore to gratulate the king's favour and their friends kindness in attending the ceremonies of their consecration with preparation for , & entertainment of them with gloves , and good cheer , and with sober , hearty and generous welcome , the cream , marrow and musique of all entertainments : but in this of a justice , the official improvement of a serjeant , there is no cause of further joy and triumph , then as it is an opportunity to glorifie god , serve the king , and his people , honour the law , his study and profession , nor is the reward of it more , if so much , as by a good round practice is gained ; and therefore when it comes to a serjeant of yeares that has plyed hard at the oare when young , and has feathered his nest well , it comes very seasonable to alleviate his toyl and to be a port to his old age and a help to his retirement . these are the motives to good and grave mens inclinations to observe the king's pleasure , and to serve him as justices . pride , popularity , covetousness , idleness , are no jewels or ornaments in a judge , but rather the treacherous syren-notes that make the achilles of learning , piety and truth in them self-felons , accessaries to their ruine and defamation which had thorp considered he would not have so dishonoured the law , and his singular judgement therein by bribery , nor tho. de wryland chief justice of the common-pleas , for an accessary in murther , or stratton chief baron , for felony ; and all the justices in e. . time ( except mettingham and beckingham ) have deserved for their bribery and corruption to be removed , fined , and imprisoned : qui non amoverentur nisi clarescentibus culpis , as matthew paris his words ( of some such delinquents ) are . habitum tamen indumenti sui in quibusdam ipse extunc mutabit sed non in omnibus insigniis ejus . the coyff called the pileum in the roman stories , being a priestly habit , and so by saint ierom owned under the name of pileolum , as the fourth kinde of sacerdotal habiliment , the judge continues ; so doth he his long robe and cap , onely habitum in quibusdam mutabit . now a habit we know is a token of regency in universities , it 's to accompany the hood , when masters of arts goe to congregations , it is an old philosophers short cloak , of which i have written in the notes on the precedent chapter ; that which is to be added is , that as men of honour in the heroique ages , either covered not their heads at all , ( which is the reason why homer makes no mention of pileus , nor any of the antient statues are seen other then bare headed ; or if they did cover them , yet onely but when need was , and that with some lap of their garment ) so did they not then wear covering for shoulders longer then necessary , nor them longer then either cold or raine required it : which though we ( now accustomed to more delicacy and trimness ) have altered , yet so much of the antique vest as intimates gravity and learning is retained , and this our text makes to reside in the habit of a serjeant in common with a judge , who wear long robes priestlike , for so the long robe is reckoned . exod. . cum capitio penulato circa humeros ejus & desuper collobio ] with a furred cape about his shoulders ; so is the translators reading ; robes were the best of garments , and those that signified excellency and state. and therefore as they were long from the collar to the foot , to import the extent of dignity over the whole person of the wearer , according to that pattern which i believe the christian church took for her long robe , from that text , wherein we reade in the midst of the seven candlesticks , one like the son of man , cloathed with a garment down to the foot ; so was there a shorter robe , which the priests wore from the pattern of old , pallium superhumerale 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 exod. . . . verses , which pallium or short cloak signifyed a vest , panno out pelle suffultâ , whence the lining of the judges robes with silk in summer , and furr in winter , hence the furred cape , capitium ] anciently mamillare foeminarum , a stomacher , or rather a short cloak , like those women heretofore wore , when they rode , or were ill , and yet doe wear in child-birth , which is now worne onely by country old women , and country midwives , which capitium , because it was a guard to the breast and shoulders , which cabinetted and secured the entrals of life and tenderness , things of security from weather were called capes , thus the seamen call a port where they touch for relief , and put in for safety a cape . our chancellour then by capitium penulatum ] meanes not that tegmen capitis which varro mentions , but that penulatum capitium , that vest or loose garment which is worne in rain and stormes over the close garment , which vlpian reckons amongst the garments that are in common between men and women , and are used indifferently by them , both call penulas , or as we call them caped rockets or short cloaks not much longer if so long as the middle ; severus is accounted the first that allowed this garment , yet onely to old men , and that on their journeys , and in cold and wet weather ; (a) tully terms it penula viateria ; galba made so much of this garment that quintilian tells us , when one of his favourites asked him to bestow his penula upon him , he refused to do it , saying , si non pluit non est tibi opus , si pluit ipse utar . paysius tells us of many penula's , the penula scortea which the pegasarii cursores used , the penula gausapina which we call the gossips mantle , the penula oratoria which tacitus alludes to , all which were several habits for several persons on several occasions , such as the capitia penulata for the serjeants , who being men of years , weakness , and dignity , do as well for security as state , wear these short cloaks furr'd in the cape . from these furr'd capes on their capitia penulatia came probably semi copes and copes used in cathedrals and churches under the name of capae canonicae & capa chorales ; and from this the term of festa in cappis , which because they were lined with furr or silk on the inside according to the season of the year , the serjeants , that in their robes are sacerdotal , continue to wear robes lined according to the seasons , et desuper collobio cum duobus labellis . ] this collobium does not here signifie a short coat or a tabard , like that we call souldiers mandils , or mantles of the fashion of coat-armours , such as our heralds coats are ; for that the codex theodos. forbad senatours and men of worship to wear : but it imports that cowl that was proper to monks , hermits , souldiers , and country-men , who because they were encounterers with hardships , had these superhumeralia to defend them . thus the learned knight understands these very words of our chancellour ; and thus we all know , that though the hood or cowl be worne about the shoulders , it is the proper tegument of the head and neck . and therefore iulius firmicus reckoning those that are defective and impaired in health , and thereupon dye , mentions among others collobici , that is , such as by reason of infirmity are fain to keep their heads in cases , and bide them in a hole as it were , least the winde blow upon them . collobium then was as a hood for warmth , so cum duobus labellis , which lips , longer then ordinary , might be convenient to close up that room in which their trinkets were carryed , perae oratoriae , that in which advocates carryed their papers ; for as priests and priestly men did by severe penance and study portare rugas in vertice frontis , and auxilium portare clientibus , so did they portare fasciculum librorum sub ala : and so our advocates ordinary do , save onely serjeants and the great ( within barr ) counsel ; for these have their baggs carryed by their clerks , but of old 't was otherwise . for as the collobium was used for the head-case , so the duo labelli joyned to it might render it capable to be useful for stoadges . and thus in the habit and some other solemnities the serjeant and the doctor of the lawes agree , and little or no dissimilitude is between them ; for though the serjeant has in england more honour then the doctor of the lawes : yet the doctor of the lawes is more generally honoured and owned in the world , because he is a professor of the lawes of the continent , when the serjeant is onely of the municipe local lawes . sed iustitiarius factus chlamyde inducetur firmata super humerum ejus dextrum , caeteris ornamentis servientis adhuc permanentibus . as the office of a justice is an advance to the state and degree of a serjeant in the person of the officer ; so is there an advance in the nobility of that vest , which in a justice is superadded to that of a serjeant . the long-robe and cap , the hood and coyff are the same , and the colours of black , purple , and scarlet , for the respective dayes are the same ; but the chlamys which the justice has , makes the difference . now this chlamys , suidas calls ' 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a military garment , and he sayes numa was the founder of it , who learned it from the albanians , whom he being victor of , and liking their vest , from them used it . it was called by the romans , paludamentum ; and varro sayes it had its name , quod qui ea habent , conspiciuntur ac fiunt palam : to this seneca alluded when he sayes he does not loek upon men for their gay garments and rich apparel ; but accounts of them as he believes their mindes are crowned with virtue and tissued with generosity , and the noble and virtuous pride of well-doing . this chlamys imperatoria was that which the (a) roman chieftains put on when they led forth their armies , as the toga was their garment in peace , when they stayed in the city . virgil describes pallas by this ; — ipso agmine pallas in medio chlamyde pictis conspectus in armis . this garment after grew so requested that every nation had of them , and those of diverse sorts : hence is it that we read of chlamys aurata , crocea , purpurata , intexta variis coloribus ; also of the chlamys phrygia , sidonia , spartana , tyria : yea , all the roman emperours and military magistrates gloryed in it , as in that which was the very 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and specification of absoluteness and majesty , so eutropius sayes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that the chief token of maximinian ' s absoluteness was his rich cassock , or rather robe ; so of caligula 't is said , he put on , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a silken purple robe studded with precious stones ; so the same authour tells us of vitellius , that he was on a kingly well-mounted horse , adorned with a rich purple chlamys ; so severus , antoninus , caracalla , (a) maximinus , (b) honorius , and theodosius , are storyed to wear this , which originally ( according to (c) xiphilinus ) was a greek vest : but cassiodore sayes , by dioclesian it was first introduced in the embroyderies of gold and precious stones , and the reason that he would have such a glorious vest was , because he would be accounted a god , and as such adored , cum ante eum omnes imperatores , &c. when before him all the emperours we looked upon and saluted as iudges , and had nothing to distinguish them from the habit of citizens but their purple robe . from these and the like instances and received customs have the use of the chlamys , which was first military , then imperial , and thence judicial and magistratique ( in not onely primary but subaltern and derivative magistracy , as is that of the justices here in the text ) been derived to us ; and not onely been the distinction of them when living and sitting on their benches , but also their ornaments and honourable remembrances when in their graves : witness the sculptures of the roman statues chlamydated , and of our knights and judges in their pictures and monuments . now this chlamys is in our text said to be firmata super humerum ejus dextrum , ● to tell us , that judgeship is a thing of burden to an honest man , and one that makes conscience to know and perform his duty ; and that he that buckles to it had need to lay his right shoulder , his best abilities of minde and body to discharge it wisely and fully . hence it is that sipontinus derives humerus from humus , because as the ground complains of no burthen that is laid upon it , but supports it because it self is of solid substance ; so a good publick-spirited heroique , whom god has endowed with parts and piety , goes thorough stitch , as we say , with his duty , and having put his shoulders to the yoke , flinches not , but is firmatus super humerum dextrum , that is , goes on in his work indesatigably , as if he were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as our lord iesus is said to be so adapted to it , * that the government which was laid upon his shoulders , he bore up valiantly and victoriously . as our judge must pray and endeavour , he ( according to his opportion and ability ) may , that the magistracy he has virtute chlamydis data & impositae , he may peragere digné & debitè without any gap , chop , or breach in justice ; for therefore is this chlamys closed on his right shoulder , that he may learn to be alwayes uninterruptedly courageous for , and in the truth : and that the firmness of his faith in god and to the king , may appear in his service of them both , and their people for their sakes , with might and main . excepto quod stragulata veste aut coloris bipartiti , ut potest serviens iustitiarius , non utetur , &c. serjeants alwayes , till within this late time of distraction , i think wore their party-coloured robes , and their attendants party-liveries , for the first year after they were serjeanted ; and that not as a token of diminution , but of their tenderness and new entrance on their state and degree . genes . xxxvii . . 't is said , iacob loved ioseph more then all his children , and he made him a coat of many colours . and this was done not onely to comply with the nature and humour of youth , which delights in variety and novity , in which regard that allusion of pliny's may not be impertinent , that every egg of birds is party-coloured , which signifies youth to be an unsettled thing , this and that , and neither yet either , &c. but also to instruct us , that party-colour in garments signifies honour and victory , so , to sicera a prey of divers colours , a prey of divers colours , of divers colours of needle-work , on both sides meet for the necks of them that take the spoile . in which words there is not onely 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vestis phrygionica , that embroydery in many colours set out to the life , which makes the garment glorious , gaudy , and delightful , of which the prophet ezekiel and other scriptures speak ; but that party colouredness that is by tincture or dye , as the rabbins expound this place by vestes factae diversis speciebus colorum , so 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifies : for though the plural . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifies what has as many kinds of colours as there are dayes in the year , yet in the singular it signifies onely vary colours . stragulata vest is coloris bipartiti ] though our serjeants colour is black and purple , party per pale ; yet stragulata vestis , is in authors any thing that is rich and delightful ; stragula ] * genus vestis , sive quicquid vel insternitur lecto , vel equo , vel alii rei ; so tully also computes stragulatas vestes amongst the greatest jewels , and (a) livy ; so budaeus tells us , that tapetes & tapetia , tapistry as we call that part of rich furniture , was brought by the army out of asia to rome , and accounted an advance to the luxury of rome . whereas then our text uses stragulata vestis , for bipertiti coloris vestis , it is not to signifie as if serjeants vests were like heralds-coates , embroydered with silk and gold , but were onely of two different colours of cloath , to signifie his initiation by gravity and learning into grandeur and lustre : and thus sable and purpure make a fair display of a serjeants qualifications sutable to his trust , learning and generosity ; by the one to know what justice and honesty is ; and by the other to be enabled with courage and resolution to serve and propagate them . this then being a companion and emblem of incipiency and meer entrance and freshmanship , as i may so say , in the state and degree of serjeancy , the justice is not to be alloyed by , and therefore the ensign of it not to wear , iustitiarius non utetur ] saith the text. capitium ejus non alio quam menevero penulatur ] this is another difference ; as the serjeants cape is lined with lambskin , which is in token of tenderness : so the justices is with menever , that is , as i take it either the skin of a little beast bred in germany , or of a russia squirrel , but it is that which is spent in lining hoods and garments of graduates in arts , as black and yellow furrs are for the linings of liveries of men of societies and mysteries . with this menever , as the caps of judges and men of honour were lined , so the attires of ladies and persons of quality , as somewhere i have seen in an ancient picture . qualem habitum te plus ornare optarem cum potestas tibi fuerit ad decorem status , legis , & honorem regni tui . this clause is insinuative to the prince why , and upon what reason formalities were established , and civil ceremonies first nourished , to wit , in order to the great and more consequent ends of stability and government . for as hedges of thorn and bryars preserve fields of corn and grain , and locks of iron on doore of wood defend carkanets of jewels , and treasuries of gold , as souldiers that have hardly a tatter ( as we say ) at their breeches , protect rights that have kingdomes depending on them , and farthing candles help men to finde a gemm that is invaluable , and without them would be lost ; so the little things ( as they are thought ) of forms and methods , habits and proceedings , doe so conduce to the greater and nobler parts and portions of administrative prudence and virtue , that without them and their punctilio's in every thing duly observed , errors and inconveniencies will ensue . this is the reason our chancellour mindes the prince , when god shall doe well with him , to doe well by the law , not onely in the greater and more considerable matters of securing it from all encroachment upon it , but also in the very circumstantial and ritual appendances to it , qualem habitum te plus ornare optarem ] and that not so much for love to mee , your chancellour who have followed your misfortunes and disasters , and resolve to live and die your votary , who though now a banished person from the bench , and from the countrey i love because i was born in it ; yet cannot but wish well to the law my study , to the professors of it my companions , whom i would beseech you to favour highly , and in all things to promote , defendere , amplisicare & ornare , as cicero's words are , magnificentius augere & ornare as the same authour . i say our chancellour does not here barely desire their esteem , but somewhat more decretis ornare , to declare favours to them by law , aedificare & ornare classes , to enlarge the borders and boundaries of houses of law , and to make the habits of lawyers , vestitum pulcherrimum , & ornatum regalem , to account the professors of the law as the orator did eloquent men of his time , the flower of the nation , the firmament of the roman splendor , the ornament of the cities dignity ; this is the generous temper , and supereffluent cataract of his love to his profession and study beyond any private and narrow emolument of his own . for he presents not to the prince his fidelities and sufferings , his eclipses and hazzards , his relations and countrey , whom for his sovereigns sake , he has quitted and is dubious ever to see , he beseeches him not to remember his family when he comes into his kingdom , and to set one son of his at his right hand , and another at his left in the glory of his restitution , no such mercenary sallies of a mean soul does he in these words discover ; but all that he remembers him of as a grave counsellour and father to his youth , so winnowed and chaffed to and fro by the euroclydon of a distracted nation , a potent antagonist in a possessed throne , and his doubtful victory over his present dislustre , all that i say he craves of him , is that he would make the law which he counted lumen & ornamentum reipublicae , as tully stiled hortensius , in all the ceremonies of it honourable , and the habit of it honoris ornamenta , monumenta gloriae & landis insignia , as the orator said against catilin . and this he does , not from a spirit of opposition or in remora to the conspicuities of other artists ; but as a brave and true spirited englishman pro bono publico , this ( saies he ) will make men esteem well of the law , and the professors of it , & ornatissimam de illis sententiam dicere , as the orator's words are , and this comes to our texts ad decorem status legis , that men by the honours and riches they attain to by study of the law , may be invited to apply themselves to it , and acquire excellent knowledge in it , and in the conclusion fill the nation with learning and skill , which accomplishes that which the chancellour here presses , honorem regni . thus the chancellour evidences in his advice to the prince , his love to the law , which yet as a wise man he desires not exhibition of , till a fit season to shew it self in , is effectually administered . he , good man , is not all agog , for he has learned patience and submission by the things he has suffered ; but resolves by a holy and humble obsequiousness to serve providence , and submit to the regency of it . therefore while he shewes his love in this advocation for the law , he also manifests his submission to god for the time when his pleasure shall most advantage it self in the discovery of it , so it follows . cum potestas tibi fuerit ] those are his modest limits . princes as well as subjects are in and under the power of god , and he will have his will on them as well as on meaner men ; for they are all but clay in the hand of the potter , and the vessel he makes to honour is but still a vessel , the work of his hand . 't is not for us wormes , who crawl on a soyl of dust , and are busied in a world full of shaddowes and snares , to stand upon termes , and be dictatorianly haughty . god that is above us can worry our folly , and launch our tympany ; yea and with the humorous matter , let out also the life-bloud of our beings , and then what are we ? o what a madness is it to fret and fume , to sacrilegiously resolve not to wait upon the lord any longer . such arrogant nebuchadnezzars , who raunt and rave in their sultanish bravado's , and consult not with god , build on tottering foundations that shatter down in a moment , and the place of them is no more known . better and firmer is that foundation which is laid on faith in god , and obedience to god which resolves to wait till god return and have mercy ; and when that season of his is come , then welcomes and walks worthy of it . this is the scope of our chancellours cum potestas tibi fuerit ] for his purpose being to press upon the prince courageous prudence and generous patience under his present condition , when he presents the law and its artists as meet objects of his favour and kindness , and wishing his benefaction to them , as meet to promote the main design of government , peace , and order , religion and learning , industry and riches , he so intends his advice to take place , as god's providence in the favour of a worthy issue to his adventures shall permit ; for till god's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is come , all 's but talk and bustle , vanity and vapour that is put on by the spurr of the keenest mettle , and laid a-soak in the ripeningst prudence and the most effectual conduct . men may pray and project , forme and sight , but can never overcome their fears and obtain their wishes , 'till god's counsel be answered in every punct of it : and then his figure has all the perfection that weight and measure can accomplish it by . for as in the computation of life there are foure aera's , the spring of childhood , the high summer of youth , the autumn of manhood , the winter of old age , and each of these have their proportions of the summe of life , dividing the eighty years of man into four twentyes , and allowing to each pass a twenty years , before the absolving of which no ordinary avenue is possible to the priviledge and benefit of the gradation that is before it ; so in the series of god's operation , which is infallible , there is such an exact harmony and sorites of concurrences , which are not to be abated or promoted beyond the proportion of god's endowment and situation of them , that there is nothing more to be done in the entertainments of god's pleasure in productions , then to be subact in our mindes to god , and to be thankful that he gives time as the season , and men as the instruments to their production . scire te etiam cupio quod iustitiarii angliae , &c. here in the promiscuity of titles ( iustitiarii angliae here , as well as iustitiarii regis in the former chapter ) our text-master shews the unity and inseperableness of king and kingdom , both which make up but one and the same great good , which compleats the head and members of government and order . and therefore as respectu fontalitatis the justices are the king 's , for he onely does , as he onely can commissionate them to judge the people , whose the people , they be to judge , are ; and that by the law , whose the law they are to judge the people by , is : so respectu utilitatis & finis the justices are the peoples , that is , distribute justice in the place of the king for the peace of the people , which circumaction of appropriation in this reciprocal line of endearment , tyes that gordian knot that nothing but necessity unavoidably can loosen or dissolve . non sedent in curiis . ] that the justices sit argues their authority , that they sit in the king's courts displayes and declares the publickness of it ; but that they sit not above three hours , and that in the first and clear part of the day , when there is time to prepare for the court before it sets , and to dispatch the subsequent business in the afternoon when the court sits not , is contrived with great prudence . for lawing is not the totum regni , but the plough and the ax , the shop and the barn , the field and the market is to be tended as well as the study and the barr. therefore as there are but certain times which are called terms , wherein the courts of the king sit , and by them causes in dispute can be determined : so are there in those terms certain hours in the day , in which onely those courts sit to hear causes , which hours are the hours that are neither so early that weak and sickly persons cannot rise at them , nor men , when they rise be without sleep , and drowsiness not shaken off them , fit presently to come to the court : but they are the three middle hours in the fore-noon , which in the time precurring them , gave way to devotion , and preparation for the court by consultation with counsel before the court sits , and takes the wits of both clyents and witnesses in their coolness and keenness before they be loaden and surcharged with visceration , which the antecession of meat burthens the after-noons hours with . i say , the order of the king's justices sitting those hours , from eight to eleven , that is , from that time more or less as emergencies require , ( for strict minutes , no nor hours in this case are precisely stood upon , that maxim of the law being true here , apices iuris non sunt iura , ) argues a prudent appointment of experience to avoid the temerity and drowsiness , the indisposition and unfitness , that after-noons clogg dispatches with . for though as to formalities and entryes , as to matter preparatory to tryals and courts of law , the fallows of afternoons do well ; yet as to the judicial and wise determination of affairs of life , reputation , and estate , the morning judgement is most subtile , sincere , and undisturbed : which is i believe the reason that the chief service and devotion of the church was ever accounted her morning exercise . and surely if the morning had not been as musis amica so devotioni , david would never have attributed so much to the morning as he doth , thou shalt hear me in the morning , in the morning will i direct my prayer unto thee , nor would he speak so much of god's loving kindeness in the morning , if he did not attribute much of furtherance to sanctity and seriousness to the morning . now the morning being , in a large sense , any time before noon , and arguing sobriety and freedom from repletion and luxury , which declines prudence of fore-cast and deliberation , the hours here limited though but in number , yet being in the best and clearest time of the day , are enough to dispatch much business in ; especially considering the judges are aged , whose infirmity as it often disables them in their decay of strength and tenacity to sit long : so after meals do the same infirmities engage them to repose , and therefore saith our text , curiae post meridiem non tenentur . ] for as there are dies non iuridici ( as before i said ) not onely every lords day , but some dayes in every term ; so are there horae iuridicae & non iuridicae , which our text warrants : whose authority the great * chief-justice quotes in the very words of our text. sed placitantes tunc se divertunt ad pervisum & alibi , consulentes cum servientibus ad legem & aliis consiliariis suis. this referrs ( not to the pleaders repairing to the pervise-exercises of academique origen , the same in law that those exercises in oxford are , called pervisiae , or sittings general in the scholes in the after-noon ( which mr. selden sayes he understood first out of mr. wake 's musae regnantes ) and to which not onely young lawyers repaired to learn , but old serjeants to teach and shew their cunning , ) i say , this clause turns us not to that pervise , from whence the little place ( whereof teaching of schole was ) in the lower part of the church , was called pervisium ; but this referrs to the consultation that clyents use to have with their counsellours and serjeants about their pleadings , bills , demurrers , rejoynders , special verdicts , orders , the reading over of which judiciously and with intentness is called pervisum , or as we say , perusal of them , that is , considering the legality of them , comparing them with originals , making briefs out of them , marshalling the evidence and preparing for tryal in court. quare iustitiarii postquam se refecerint totum dici residuum pertranseunt studendo in legibus , sacram legendo scripturam , & aliter adcorum libitum contemplando , ut vita ipsorum plus videatur contemplativa quam activa . this clause , from so true and knowing an oracle as our chancellour was , informs us of the piety and wisdom of the law , that therefore calls the learned age of lawyers off practice to iusticing , that they may the better do justice to the people when they are taken off from all action of diversion , and wholly set apart to read over their books again , which they had in a good measure forgot ; for practice though it adds to the stock of coyn , yet it abates the stock of reading ; therefore the judge being taken from pleading , is wholly to betake himself to read over his law-books , to peruse scripture-directions , and to contemplate moral prudence . this if the judges had in that latitude that our text speaks of , they had not that trouble with multitude of persons repairing to them , that now they have : for then the tricks and sharks of men were fewer then now they have found out , which multiplies the trouble and diversion of the justices ; though that time they have free from business contributive to the expedition of the court , and from visits and conferences with friends , together with the affairs of their families and fortunes , they spend in meditating upon the law , and on the word of god , and in such methods of wisdom as becomes their years , dignity , and learning to evidence themselves versed in . for a good judge that does employ his vacation as our text describes , does not as acindinus in st. augustine , abuse power to oppress his underlings till they have quitted their right and sacrificed it to his lawless and sinful pleasure ; but so demeans himself in the use of humane lawes , ut secundum aeternae legis immutabiles regulas , quid sit , quo tempore jubendum vetandumque discernat , considering that of saint ierom , that the judgement of god and man is not alike , nor is the same plea available in the assise before the iudge of quick and dead , assessed with by saints and angels , that will be acceptable here before us men , with whom many things pass for virtuous , which there wil be rejectedas vild ; and this our text sets forth not so much as matter of recreation and pleasure as pain and study of the minde studium , est dedita opera voluntatis hominis attentior atque impensior saies donatus . hence is it that men of study doe wholly retire themselves from avocation , and intend their thoughts and speculations ultimis viribus , giving no sleep to their eyes , nor slumber to their eye-lids ; but rising with the light , and sitting on the eggs of their conception constantly , till they have hatched their designs . this david calls in his holy soul meditation in gods law day and night , celebrare per otia recta studia as the orators words are . and this study , the occupation of the minde in contemplation and invention , being properly the work of age , when the minde wearied with the seeming gaudery and real nothing of objects pleasing to light and credulous youth , retires it self in penance to time mispent in fruitless action and sinful delight , returns to consistency , and to preparation for higher fruitions , and more real and solid contentments . i say when the minde of man in the age and serious temper of it , dwels at home , and is abstracted from the objects of its vageness and insolidity . then , then , is it best at leisure and most pleased with the repose of study and the delights of contemplation . for as in youth the glory of it is action , so of age the honour thereof is contemplation . then they doe quietam vitam agere ab omni solicitudine ac mundi turbinibus semotam their passions are ebbed low , and their curiosities satiated , with desire defeated , and expectation glutted , turns them upon more real objects of captivation , the contempt of the world , the preparation for death , the appropriation of the joyes and comforts of the almighty , the communion with god and christ , by the assistance of the holy spirit . these , these alts and elahs of holy musique , which attol the soul above wonted endearments , and heretofore surprising iuventutis lupanaria , are the onely blessings of age , and the noblest compensations of lifes infirmity . when men can defie the sinful fear of men , as gascoigne did , and dare own truth in the day of hazzard for it , then they doe as those that are remoti à mundi turbinibus , then they doe quietam vitam agere , which hankford chief justice to * e. . ( though he was a most learned man in the lawes , had never a son , and had a great estate ) yet never attained to . for had he not feared difficult times and the issue of them more then he ought , he had not been his own murtherer as he was , nor had sir iames hales that honest judge , who stood alone in the integrity of a lawful judgment in the case of the crown temps e. . and who therefore highly deserved of queen mary whose champion for her right in succession to the crown he was ( though shee requited him ill , in suffering him to be imprisoned for his religion , which owned so constantly her supremacy and sovereignty ) i say had that good judge feared less the terrours of men he had not made himself away to avoid them as he did . i say had these , though other wise worthy men , been à turbinibus mundi remoti , had they the quietae vitae actio , which as good judges and grave sages they are described in the text to have , they would have kept themselves from this great offence . nec unquam compertum est corum aliquem , donis aut muneribus suisse corruptum . this is not in the strictness of the letter to be understood . for our chancellour right well knew , that sir william thorp chief justice of the kings bench e. . cepit munera contra juramentum suum , and e. , all the justices except two , e. . justices itinerant took bribes of berners , and were fined for every pound a thousand marks , and so others , which sir edward cook nominates , i say our chancellour knowing these errors and misdemeanours in judges , could not be thought to write thus confidently in a matter of apparent questionableness ; but whereas he sayes nec unquam compertum est , he is to be understood , non frequenter ; raro unquam , as quintilian expresses it . for though there have been such persons and presidents of misdemeaning justices , who have been donis & muneribus corrupti ; yet not often , as seldom as next door to never , have such been , the justices of england being for the most part the most approved and impartial judges of any in the world , nor is there any place under the cope of heaven , where i think so little iniquity in judgement judicially is , as in england . unde & hoc genus gratiae vidimus subsecutum ; quod vix corum aliquis sine exitu decedat , quod justis magnae & quasi appropriatae benedictionis dei est . this inference is to have a modification to reduce it to rectitude in the court of experience and truth . for because in outward things , the wise man's caution is safe , not to conclude good or evil , love or hatred by them , for as much as they have unequal events and various catastrophes ; therefore is the hoc genus gratiae , and vix eorum aliquis to be gently pressed as an argument of benediction on men in their way and prosession as rewarded by them for it . for though true it is , that children are the gift of god , and that posterity to preserve a name , is much the delight of men and the mercy of god to many , that are in their families eternized by it , as has been our royal-family , in which , in which , king iames said he was in descent to the kingdom of scotland yeares before christ , and may it so continue in them i beseech god , and so is the suffrage of all true englishmen , till shiloh come , that is , for this worlds ever . and as many others of ancient extract have by it been long in nations and in honours , yet falls it so out often , that brave men either have no issue at all , or those not monumental to them , unless it be for wickedness and dissimilitude of manners to their genitors , which aemilius spartianus makes good in romulus , numa , camillus , scipio , both the cato's , homer , demosthenes , crispus , terence , plautus , caesar , tully , trojan , antoninus pius , severus , and may be instanced further in thousands of others ; and therefore this is no infallible instance of gods favour , no more then other things are , which are commonly distributed , of which the father saies dantur bonis , ne videantur esse summè mala , dantur malis ne videantur esse summè bona , but that which i would have our chancellours sense herein is , that god hath so approved the integrity of the judges in england , and so rewarded it with living memory , that very seldome they being men of good families , breedings , fortunes , and courages , doe deny themselves the content of marriage ( as justices did when priests and under vowes , as till e. . time , they often were ) but in their lusty and liberal youth , bestowed themselves to women of quality , and thereby gained additions of fortune and relations , and as a consequent of their natural vigour , and conjugal content , prolificated . for though i know all the vigour and kindness nature has in her repertory , and the most endeared expression of it parties can testifie each to other , availes nothing to encrease without gods fiat , and his benedictive amen ; yet where those are , and are properly expressed , issue may come as the work of nature , as well as from a more hallowed cause , which our chancellour calls here gods grace , magna & appropriata benedictio dei. and therefore , though i concurr with sir edward cook , who to this of our chancellour adds another crown to judges , that they die not will-less ; yet doe i think both these if they be peculiar blessings , yet are onely so to judges as to other wisemen , who walk humbly before god , are diligent in their callings and advice , and act for the peace and plenty of their families living and dying . for though i know to be childless is a curse as in the case of coniah , and to have no male children is a death to a family , daughters with their persons carrying all they are and have into their husband families ; yet is it better to have no sons then lewd and for did ones . for as a wise son maketh a glad father prov. . , for such an one gathereth in summer , verse the fifth , such an one heareth his fathers instruction c. . v. . so a foolish son is a son that causeth shame c. . v. . c. . v. . is a grief and calamity . and if wise sons the justices of england have eminently had , as truely i think , they more conspicuously then any profession of men have had , because they have given them better breedings then others have done , 't is much towards that our chancellour intends in that clause , quasi appropriate benedictions dei est . quod ex iudicum sobole plures de proceribus & magnatibus regni huc usque prodierunt , quam de aliquo alio statu hominum regni , qui se prudentia & industria propriaopulentos , inclytos , nobilissimosque fecerunt . this clause gives much confirmation to the precedent assertion , that the judges of england have the rewards of justice in gods benediction on them consisting in the encrease and continuation of their issue ; which is so great a felicity that iob accounts it amongst the rewards of god's beloved ones , whom he corrects to their emendation , and thereby dignifies by this special testimony of his love , that their seed shall be great , and their offspring as the grass of the earth . for if it be a judgement to dye issueless , as in the case of coniah , and to have ones seed cast out , as in the case of iehoiakim and his seed whom god threatens ; if god threatens to pour out his wrath upon the children of wicked men , then surely to have children , and to have those children blessed after them , to have them inherit the earth , to have them delivered in the evil day , is the peculiar honour of god to the piety and justice of ancestry : which the chancellour here takes notice of to fix on the princes mind a love of the law , which has been the raiser of so many excellent siers , whom god has made the extern instruments and the natural causes of so fertile a peerage and nobility , as from them lawyers by profession and judges by office have arisen . for though true it were that when the justices were clergy-men , there were no magnates or proceres that came from them as their lawful soboles ; yet when lay-men came to be justices , and they marryed and had issue , the issue of them inheriting such fortunes as they left them honestly gained and thriftyly improved , made them sit and worthy of the king's honour , whereby they were not onely made men of honour , but proceres & magnates regni , ] that is , barons , and of the high nobility of england ; so proceres & magnates are frequent to express earls and lords by , c. . magna charta , stat. merton , w. . gloster west . . quo warranto , west . . and so in m. paris , and so in all acts of parliament , when the lords spiritual and temporal are named , those the text calls proceres & magnates , are intended . and that these have in a great measure ( many of the ancient baronies of england being extinct and determined ) been the supplements and rise of the growing nobility , no man can deny that has any skill in antiquity , though because to avoid inconvenience i forbear to instance in particulars ; yet a truth it is from our chancellour , seconded by sir edward cook , who has numbred near great families risen from lawyers , the professors of which law by the blessing of god , hath obtained a greater blessing and ornament to their family and posterity then any other profession ; for it is an undoubted truth , that the just shall flourish as the palm-tree , and spread abroad as the cedars of libanus , thus sir edward cook. not that our text-master attributes all ascents to honour by riches , and virtue , to the law in the science and practice of it ; for there are many courses of life and wayes of profession , wherein diligence , crowned with success , makes rich , and riches had , procure titles and dignities , such as are offices , physick , trades , husbandry , plantation , buying and selling of land , all which have raised great estates and made families rich and honourable by them , especially the city , which how much soever it is vilified is no infrequent or unfruitful womb of honour , though i say the chancellour allows these to have their respective shares in the pleasing returns of conspicuity on their issues ; yet the persons that have risen to be opulentos ( that is , divitiarum pleni , as tully renders it , pecunia opulenti , rich as they are who do componere opes nullo sine , and who get what they have ex sanguine & miseriis civium , as salust accused some ; like that clericus militaris whom lichfield's chronicle mentions in a short time to have grown from the inheritance of an acre to an earldom , and mansell that greedy unconscionable clerk , that had fifty promotions at a time , being able in h. . his time to spend marks a year . these are , as the text sayes , opulentos , inclytos ] that is , eminent fulgore fame conspicui , preferred above the vulgar , non tantum titulo sed merito , not for their fortune having genus inclytum magnis titulis , but virtue , as livy storyes numa , whom he terms inclyta justitia : nobilesque ] that is , having fortune to support , and virtue to become honour and peerage , are preferred to , and blessed in it above others , ) he accounts the issue of the justices . quanquam mercatorum status , quorum aliqui sunt , qui omnibus iustitiariis regni praestant divitiis , numerum in millibus hominum excedat . this our chancellour grants , that by how much the greater improbability of it is , the greater may appear the blessing of it , to improve it to so unlikely an end . for though i think it well-becomes the chancellour to advance his purpose by all the plausible arguments , that art with truth can forme to so noble a tendency ; yet that thus he magnifies the estate of merchants beyond that of judges , and yet concludes the judges children to be more durably fortunate & worthily honoured then the sons of merchants are , seems to me high-wracked , perhaps beyond the proportion that can be made out in confirmation of it . for though i believe in h . time the justices were not so great gainers as since they have been , by reason whereof they might be so much excelled by merchants as now they are not ; yet , that either they then should be so mean in estate , that one merchant should in wealth exceed them all , or that any merchant should be so great , as that he should so vastly exceed ordinary calculates , seems to me strange i confess trade is a thing of gain if well followed , and timelyly left ; ( for there are apoplexies in trade , and men sometimes had they known well when to have given over , had dyed great in estate , who persisting in it have dyed beggars : ) but that it operates such mountains and mines of wealth , as one man of the number may thereby get twelve mens estates , and those justices , who are for the most part men of great years and great fortunes , is to me strange , and as in the text , hyperbolique . yet in that our chancellour sayes what historially i will believe rather then dispute , unless i could think his age produced what queen elizabeths reign , the rise of riches and trade , did , a race of sir iohn spencers , sir william cravens , sir thomas greshams , to which may be added sir baptist hicks , sir william cockain , sir thomas middleton , and sir stephen soams , unless i say these were matched by men in our chancellour's time , i see no reason he should so advance the gains of trade above that of the law , when as there are instances of late as well as former judges , judge gawdy , mounson , cook , popham , and the chancellour coventry & others equal to them . so that in what profession soever , if god move the heart to ingenuity and diligence , and fortunate them to a prosperous event , there may be great encrease as well as in the profession of the law ; for it is god alone that maketh men by his blessing rich , and addeth no sorrow to the riches he blesses men to get , for the liberal soul shall be made rich , and he that watereth shall be watered also himself . dilige ergo iustitiam , fili regis , quae sic ditat , colit , & perpetuat foetus colentium eam , & zelator esto legis quae iustitiam parit , ut à te dicatur quod à justis scribitur , et semen eorum in aeternum manebit . having in the prementioned passages shewn the worth and eminency of the law , and commended it in the fruits of god's blessing on the labour and posterities of the chief lawyers the justices , whom he acknowledges to be the great meriters of respect , and the great stakes in the hedge of government , who as they have primorum ordinum sacerdotia , id est , doctrinae , virtutisque praemia , as b●daeus his words are , so are every way accomplished to it : and therefore are by the chancellour , as promoters of justice , to be beloved . for in as much as the law is the rule of english justice , and the justices , the ordinary speaking rule of the law , do answer all motions in the courts , even in the presence of the king , by reason that the king's judicature is committed to them by the king , according to the law ; and that answers and declarations of theirs from the courts are the law and justice of the nation , by which the order , wealth , and peace of the nation is preserved , our chancellour , i say , upon these perswasions that the law is so beneficial to not onely the professors of it , but to their posterities , whom the blessing of god gives and preserves estates and honour to , for that is the sense of ditat , colit , & perpetuat foetus colentium eum , ] counselling him well to not onely love the law , but esto zelator legis ] to be a passionate doter on the law , as a suiter is on his mistriss , whom he desires to keep from all lovers but himself , and that for that one and onely reason , that it doth ducere ad virtutis viam & praemium , that the promise may be fulfilled in you , their seed shall remain for ever . and so he ends this one and fiftieth chapter . chap. lii . princeps . vnum jam solum superest . here the prince is personated as formerly convinced of the wisdom and fitness of the law of england for england , and of the unreasonableness of all arguments produced against the prevalence , honour , and continuation of it ; yet that he may be fortified to repell all applications of diversion , he further craves the chancellour's solution of that which chiefly sticks with him , and somewhat demurrs his plenary consent and resolution . vnum superest solum ] that 's but a little punct but of huge import , like the one thing our lord sayes is necessary , mary's choice , the better part , and the one thing david desired of the lord , and the one thing that is first to be sought , the endeavour after which has promise of all things to be added . one thing sayes the prince , one numero , but all pondere , for it unresolved , does fluctuare mentem & inquietare , that is , fluctuando inquietare ; for as seas are disturbed by the agitation of waters from the winde , so is the minde of man hurryed this and that way when 't is unquiet , this virgil terms magno curarum fluctuat aestu , and lucretius , fluctuat incertis erroribus ardor amantum ; yea curtius setting out alexander's distraction , not knowing what way to go , or whose counsel to follow , expresses it by this , that the king was at a stunn which advice to follow , whether his own or parmenio ' s : and as a man severed from all consistence and with the winde hither and thither acted , as it alters its blasts , so the princes owns himself to be discomposed ; and therefore as he prayes relief from his wisdom , so promises he not to raise more scruples , non amplius te quaestionibus fatigabo ] sayes he . this premised he produces his debate . dilationes ingentes , ut asseritur , patiuntur leges angliae in processibus suis plusquam leges aliarum nationum , quod petentibus , nedum juris sui prolatio est , sed & sumptuum quamdoquidem importabile onus . &c. because delay of iustice is one of the great errours of men in power , as being a kinde of denial of iustice ; therefore the lawes are said pati not inferre dilationes . patiuntur leges ] sayes our text , thereby intimating that lawes do permit rather then approve of delayes , and account them rather necessary evils then desirable goods . this dilatio authours interpret by prorogatio , so pliny in those words , nec ulla segetum minus dilationem paetitur ; so livy , per dilationes bellum gerere , that is prorogare bellum , pedetentim & per intervalla bellare ; thus cicero uses temporis dilatio , and horace , dilator , spe longus , iners , avidusque futuri : thus the moralist tells us that delay is the best remedy of wrath , and as it impedes precipitations and advantages , truth and justice in the ripening of discoveries ; so the lawes of nations and the wisdom of law-makers did encourage petere advocationes , which lipsius on that phrase in seneca writes , significare moram & tempus deliberandi , which is sutable to seneca's expression lib. . where his words are , * utrique parti dares advocationem , dares tempus , nec semel audires ; magis enim veritas elucet , quo saepius ad manum venit . thus for the good of men in the clearing of justice in all the lineaments of her beauty and truth , the civil lawes allow delay , and hard it would otherwise be , nay impossible it would in some cases be to make out truth where the act of god or other occurrence inevitably intercepted , if time should not be indulged men either to use that help whence the hinderance should be removed , or to think of some other way equivalent to that which by reason of those demurrs , is not obtainable . for the law being ars aequi & boni , and intending nothing but justice , as it allowes delayes for such a time as the judge , who is presumed just and wise , shall allow , ubi spatia non cadunt in certam regulam , for then there is no waving the prefixed time of the law ; so does it abhorr that those well-intended conveniences and prudent remedies should be misapplyed , to softer injury and delay of shift and dishonesty ; for they account such execrable , crebrae dilationes quibus res in longius tempus extrahuntur frustrationis & calumniae suspicione laborant , say the doctors ; and therefore though the law allow time or prorogation upon petition , yet does it doe that purely upon the pre-asserted grounds , and if second dayes of delay be desired , it judges of the justness of them , and grants and denies as it sees fit , so are the authorities which confirme the rule of bartolus , ex causa potest iudex dilationes prorogare , yea and minuere too , as he in wisdom and justice findes the reason so to doe , which considered since this which our text calls dilatio , is the constitutio vel extensio spacii temporis ad aliquid agendum vel dicendum per consensum quorum interest , vel per legem vel judicem facta , and that ordinary and extraordinary ones , are in their kindes allowed necessary and convenient for the accomplishment of the ends of justice , as tholossanus cleares out of the civil lawes . the lawes of england which allowes essoine-dayes , does not exceed the proportion of other lawes , nor herein gratifies the gain of officers , who by these delayes , multiply to themselves fees , which the prince here calls by importabile onus , but does in whatever the law is slow and the proceeding favourable to any excuse that may plausibly and with colour of reason be granted in prosequution of a gentle and religious tenderness that it has to all mens conditions , and with an eye to that general rule of doing to others what we would have others doe to us , and because no man ought to goe beyond , and defraud his brother , since the lord is the avenger of all such : these things being by the prince well ruminated , the lawes of england are by him charged ( through misinformation ) with that which they are not guilty of . for notwithstanding that in all governments and lawes , some inconveniences will fall out , and some persons be aggrieved , by reason that delayes are occasioned by difficulty , divers opinions of the iudges , and sometimes for some other cause , as the words of e. . c. . are ; yet is there as little fault to be found with the law of england for this , as with any law in the world . for though the law of england does think it unreasonable to condemn a person unheard , especially where he is not able to appear , the act of god , or other impossibility of appearing , intervening and crossing him ; yet does the law , as delay savours of fraud , oppression , of ill will and perverse humour , utterly decry and disapprove it : witness the statutes of e. . c. . &c. . e. . c. . e. . c. . eliz. . . eliz. c. . which together with sundry others have in all times been enacted against it and thereupon , though there may and are several excuses on good and reasonable grounds allowed ; yet is not the law light or therein favourable to unnecessary delay and prorogation of spight : but purely inclined so such lenity and latitude upon the prementioned reasons , which protects both lawes and men from sin and guilt for legally practising it , according to that rule of bartolus , non est in mora qui potest exceptione legitimâ se taeri . and so he ends this chapter . chap. liii . cancellarius . in actionibus personalibus extra vrbes & villas mercatorias , &c. in actionibus personalibus ] of these i have discoursed in the notes on the . and chapters . extra vrbes & villas mercatorias ] that is , without corporations , which are counties and staples of trade within themselves . ( for corporations being the most secure residencies of men of art and mystery , have private local lawes reserved and indulged to them , which are distinct from the general lawes of open places , ) which is the reason the text sayes extra vrbes & villas mercatorias , the processus sunt ordinarii ] that is , all matters of justice , whether in actions between man and man , or in matter that concern the peace , are tryed in the hundred , county-court leet or assises , according to the custome of them respectively , and that as part of the lex terrae , which though it cannot avoid some delay ; yet so long as it is in any degree moderate , is very tolerable and useful . so was the judgement of parliament in justice richel's case , wherein it was determined that a reasonable time may be taken to deliberate upon answer to interrogatories : but when they are excessivae , such as are unsutable to justice either in men to desire , or in the law to grant , when they are merae subtilitatis & ingeniosi doli molimina , and tends to the mortifying of a cause , ( for so excessus , whence excessivus , is by * tully rendred ) then the lawes of england never have , never can , never i hope will endure them , but have discovered them ; hence allowed they by the statute e. , c. . no essoine in appeale of the death of a man , no essoine de malo lecti , where the tenant is not sick and produceable to appear before the justices , e. . c. . no essoine after a day given prece partium ; yea in that the statute of essoines does allow challenges of essoines in certain cases , it clearly appears that essoines as delayes in obstruction of justice the law allowes not . for the law of england being a law of virtue , loves nothing that is , excessive , which virtue is not ; for in medio consist it virtus . in vrbibus vero & villis illis potissimum cum urgens causa deposcit , celeris ut in aliis mundi partibus fit processus . because men of trade as well strangers as others , are the inhabiters of towns and cities of trade , and their affaires will not permit them long stay ; therefore the law of england has allowed them a speedy course for the obtainment of right against detainers of it from them , so stat. acton burnel e. . e. . c. , and other statutes , the execution of which being in corporations ( where of course by the local custome and law there are weekly courts , in three or less of which judgement may be obtained ) delayes are in a great measure out of doores . for those chapiters and assemblies of men having much of contract and contest , and of buying and selling for great summs upon barely the royalty of the faith of traders , without bond , bill , or witness , if it should not be speedily and without delay be made good by the law of the place , so great inconveniences would follow , as the law thinks not fit to permit , but to prevent the fatality of them , has by act of parliament ever saved the rights of them , and that for the better carrying on of justice , honesty and civil living within them ; yet is not the haeste ( as we say ) a cause of waste , for though the tryals are speedy , yet not quicker then is convenient , both for the plaintiff to prove his charge , and the defendant to provide himself of defence ; for if there were nimia praecipitatio it might cause quaerentis partis laesionem , as well as in the nimia cunctatio there would be . that then which is by our text aimed at is to present the justice of england , in the legal administration of it , admirable both as to the allowance of delay as a moderate and proper assistant to ripeness , and the disallowance of it as a dissipation of those ill humours speedy trial would draw to an head and expell . rursus in realibus actionibus in omnibus fere mundi partibus morosi sunt processus , sed in anglia quodammodo celeriores . this is added to shew that the greater and more valuable the nature of the thing is that the law is to determine , the more time does the law allow to the tryal and decision of it . real actions what they are i have touched in the notes on the and . chapters , yet as to the mention of them here , this is to be added , that the lawes of all nations esteem them the greatest and most valuable of things civil , not in the sense that the actiones extraordinariae in the civil law are , which doe wholly depend on the judges pleasure , who can make them what they will. no such notion of real actions are we to have ; for in that they are extraordinary actions , and cause more delay then other less consequent ones doe , arises from the value , intricacy , and difficulty of them , since title of land and the fee's of estate are much more weighty in their nature and value qua such , then debts , damages , and the like . this is the reason why in all actions that are to try and determine solid parts of estates , lands , offices , &c. every where in the world , morosi sunt processus , sayes our text , that is , not onely tedious and crabbed , but difficult and hard to bring about ; difficiles ac morosi tully couples , to shew , that all things that are of concern are leisurably to be transacted , and capable by many pauses and sluggs on them to be retarded : sed in anglia sunt celeriores , ] for that the law , as has been heretofore made good , hates delay as it is opposite to justice , which ought to be free , full , and speedy as farr as may stand with reason and convenience . for though essoines upon solid reasons are allowed , and protections in case of service to the king and kingdom against the enemies of it been given some time , but ever by allowance of law : yet did queen elizabeth , who maintained many warrs , grant few or no protections , and her reason was , that he was no fit subject to be employed in her service that was subject to other mens actions , least she should be thought to delay justice . which added to the former instances , accommodates the chancellour's purpose with confirmation , that speedy execution of justice is the glory of england ; and that no delay can be in tryals if there be not neglect in prosecution , or combination in adversaries to spin out suits in infinitum : and then , as in all cases so in this , he that values not but contemns his own quiet , may disturb another mans . for though no law can well hinder turbulentness , which is a sufficient vexation to its self ; yet the lawes of england do as much to discourage and punish it as may be , and that by punishment of conspiracy and perjury , forging of deeds champerty , barretry : and this to prevent delay of justice , and to promote the fruits and felicities of love and charity . which the law doing to out-law those lyers in wait , whose onely work and wages it is to do mischief , does contribute much to the expedition of justice and to the absorption of unnecessary delayes , which are faults and errours of men , not of the law , for that decrees righteous things , and proceeds according to evidence , allowing no delay but what is contributive to discovery and determination of right ; if the indulgence of the law to these purposes be abused by one parties industry , and not opposed by sutable vigilance in the other party , the law is not to be blamed , but the party whose the remissness is : for the law gratifies alwayes the diligent prosecuters , presuming those have ever good desires to come to issue , who prosecute the means thereunto most vigorously . now that it may appear that the chancellour's averrment , that proceedings legal in england are more speedy then in other parts they are , he quotes his own experience while he lived in france . sunt in regno franciae , in curia ibidem suprema , quae curia parliamenti vecitatur , processus quidam , qui in eis plusquam triginta annis pependerunt . &c. this instance acquaints us with the misery of seeking justice where justice is hard to be found ; for though true it be , there were of old good laws and brave parliaments in the constitution of france : yet , since absoluteness has been affected , and armies necessary to support it , since these must live upon the spoils and sharks from the poor peasant , and all offices must to sale to raise revenues and to maintain the equipage of favourites , causes that come into advocates hands must be so lengthened out , that not years of apprenticeship but even of life must be the measure of them . this the chancellour makes out in instances of great oppression and excessive delay ; which though it may perhaps in some few cases be parallel'd , some law-suits being hereditary and continuous : yet is that not because judgement of law has not been effectually given in them , but for that the parties have resolved an incessancy of suit , and bequeathed the christianless legacy of persistance to their children and successours , whereby they have immortaliz'd the suits and differences in their families , to the ruine and disquiet of one or both parties of them . this indeed has sometimes fallen out in england , but that has been in case of honour and arms bearing ; as in that matchless memorable contest between reginald lord gray of ruthen and sir edward hastings , which lasted undetermined from r. . time to h. . when judgement i think was given in it , from which there was appeal to the king , by reason of which it rested litigious till sixth's time : but this being but in a case of arms , reaches not the instance of our text , which charges france in the high court of parliament ( which ought to be the readiest and more effectual court of dispatch ) to be in so great a degree dilatory , that plaintiffs had better lose their cause then sue for it , and defendants answer the demands of it then defend it in that court , where not onely there are detentions of suit without judgement thirty years in some cases and ten in other , but those chargeable evils brought upon subjects , for seeking remedies of small evils , the remedies whereof have been worse then the diseases , witness the allegation of the chancellour , who in the text recites a case of one in paris , who for a right of eight pence english in rent , eight years in the parliament of paris prosecuted the detainer of it , and all in vain , for as the words are , nec speravit se in octo aliis annis se judicium obtenturum . many other such cases of ruining delay i have my self been acquainted with from those , whom i could name if it were convenient , who have been undone or at least unrepairably maimed by suits in the parliament of paris : so that true our chancellour conceives it to be angliae leges non tant as ut mihi visum est dilationes sortiuntur ut faciunt leges regionis illius ] which is confirmed by the prementioned statutes made against delay , and particularly by the e. . c. . which statute though it erected a court for redress of dela●● of judgements in the king 's great courts ; yet was the inhibition and punishment 〈◊〉 ●nnecessary and unjust delay before that statute at the the common law , which required , that plena & celeris justitia fiat omnibus ; so in the writs of praecipe quod reddat , are quod juste & sine dilatione reddat : and so in the writ de executione judicii , and the rest : all which , pleno ore , do confirm , that the lawes doe abhorr delay as it is an obstruction to justice . sed revera pernecessarium est , dilationes fieri in processibus actionum omnium , dummodo ipsae non fuerint excessivae . this the chancellour asserts not to gratifie delayes of subtilty , but delayes of security and discovery ; for many things are either composed or conquered by time , which in post-hastes are lost and infeasible : which is the reason that there are such steps and gradations to judgement , that when ever it is gained it may appear to be after consideratum est per curiam , and after all , that diligence on both sides could inform the court by , has been used . as therefore the law does grant essoines in certain cases , as hereafter shall be specified ; yet those because they are in view of law delayes ( though not evil-intended ones ) shall be restrained as much as possible . item , it is accorded and established , that it shall not be commanded by the great-seal nor the littleseal to disturb or delay common right , so sayes the statute , e. . c. . by the e. . c. . if the defendant essoine himself of the king's service , and does not bring his warrant at the day given him by the essoine , he shall recompense the party's damage for his journey , and shall be grievously amerced unto the king. for the law , as i said before , though it tolerates necessary and reasonable delay , which does not endanger the freehold , and very life and soul of a cause ; yet it abhorrs needless and vicious delay , which the text stiles excessive . nam sub illis , partes & maximè pars rea , quam saepe sibi provident de defensionibus utilibus , similiter & consiliis , quibus aliâs ipsi carerent . though the law provides not for the guilty person , as he is an offender against the law , to answer which the plaintiff compells him ; and therefore ought and is rather favoured in tryals then the defendant : yet that the equity and impartiality of the justice of the law may appear , the text sayes , that delayes are useful and good as they steed all parties , even the guilty side with discoveries and improvement of men and things to its vindication and defence . for as it is the noblest victory that is obtained in a field foughten , and against an enemy disputing terms ultimis viribus ; so is that the most creditable decision and judgement on causes and persons , which is after the causes and persons have not been surprised , and had all convenient latitude to free and evince their sentence and condemnation : then then the sentence of the law is most clear and justified . and hence come the unavoidable delayes of the law , delayes do i terme them , rather deliberations of the law. ( for delay being a word taken in the worst sense , is not properly attributable to the law , which is ars aequi & boni ) but when the law seems to be guilty of it , 't is to be charged on men the lawyers , not on their mistriss the law , for the law is precisely against delay , wherein then it does not speed processes , as eager persons desire , proceeds from the wisdom resident in it , which dictates to doe all things by deliberation , to a just and not to be repented of conclusion . and magistrates who are in love with justice , as that 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which becomes the wearing of reigning darius's . ( i allude to the story in strabo , which tells us , that because syloson having a garment that darius when a private man loved , gave it him freely , in recompense thereof darius when emperour gave syloson the whole island and city of the samnians ) when i say magistrates are virtuously entangled with the love of justice , and put on righteousness as a garment , justice not onely helps them to , but continues them in , and graces them by her largesses . this is the chancellours sense , that the law of england , and the iudges in it , are therefore so blessed by god in the accomodation of their integrities , with monuments of temporal eternity , their posterities in name , fortune , and honour , because they doe not , either precipitate or retard justice , but so proceed upon tryal to sentence , that during the pendence of the cause , there is time given recte consulere , perite defendere , utiliter consummare , what is pertinent , if not to their total vindication , yet at least to their mitigation in point of judgement . nec unquaem in judiciis tantum imminet periculum quantum parit processu●festinatus . this is in other words , to err on the right side , rather by being something too slow , then in any degree by being too quick ; and that because we men dwel in a valley whence we can take but a short prospect of things , and being fallible by reason of our imperfect judgement , are so apt to err and mistake , because poysed and gravelled with so many partialities and frauds ; what we want in perspicacity and certainty of judgement , we are to supply by integrity of watch and diligence of search and enquiry , to which since nothing more contributes then time and experience , therefore too much haste making waste , is to be in all reason declined . for thereby conscience is not galled nor innocence injured , or if it be , yet in a less degree , and with a better excuse and defence . for however the passions of men may ruffle them into vehemencies , and no pace in judgement pleases them , but the carrere , and full swoop , to ride as desperately upon their opposites ruine , as rage and cruelty can prick them on to ; yet a wise and worthy genius , such as that in iustice is , likes not those manilia imperia , those hot headed and fierce spirited proceedings , but followes the method of god , who waites that he may be gracious , and the exhortation of the apostle , to be slow to wrath , and to judge nothing before the time : yet this not so much out of timorousness , irresolution , or disaffection to justice , as in care and providence to conduct her into her proper channel , and to preserve her pure to the purpose of her institution . for because nothing is so perillous in judgement as hastyness , the wise man's counsel is , not to be rash in our words , nor to let our heart be hasty , and in another place , g●e not forth hastily to strive least thou know not what to doe in the end thereof . since as in private actions nothing is more injurious to mens fortunes and fames , then suddain and rash evidences of themselves , so is it in publique sanctions and judgments of law , which daniel intimated in that stigma he gave the unjust and sanguine decree of nebuchadnezzar , which he call a hasty decree , why saith he to arioch the king's captain , is the decree so hasty ? the word in the original is not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hasting righteousness isaiah . . nor 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 psal. . . where david speakes of a prudent and warrantable haste , i would hasten my escape from the windy storm and tempest , nor 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in prov. . . seest thou a man that is hasty in his words , there is more hope of a fool then of him , it 's none of these words , but it 's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 a chaldee word signifying crudelis , festina , id est , crudelis faith grotius and lorinus , yea calvin sayes that daniel does in them perstringe the king for not deliberating on the tart nature of his decree , but passing that so lightly which concerned the lives of innocent persons . this mischief in judgement our text tells us the law avoides by halting in processes . nec unquam in judiciis tantum imminet periculum quantum parit processus festinatus . vidi nempe quonda● apud civitatem sarum coram iudice quodam ad goalam ibidem deliberandum cum clericosmo assignato , &c. here the chancellour produces an instance of injury though not murther committed by a iustice his quickness , in shewing the extremity of his power ; and 't is an instance not by report or hearsay , but whereof the chancellour was himself an ocular witness . vidi sayes he ] that is , vidi personam & andivi sententiam , for he being a practiser of the law in his youth quondam ] and riding the western circuit , did then at salisbury , where the assises for the county of wilts was holden , see one tryed before a judge and condemned to be executed by burning , and the clerk of assises in commission with him . ad deliberandum goalam ] as there are justices of assise , oyer and terminer , & nisi prius , according to the stat. west . c. . so are there of goale-delivery , and that to expedite justice , and deliver persons by execution or discharge of them from unreasonable burdens , which delivering of the goale concerning the life and members of man ought to be performed with great caution , and from a judicious bench , which sir edward cook well remembers me of in those words , by the original institution of iustices of assises and of nisi prius , the tryal should be before two at the least , and it were much for the advancement of iustice and right , to have the law put in execution , for plus vident oculi quam oculus , and especially in pleas of the crown concerning the life of man so that grave judge ; which tells us , that the law does not onely take care that there should be plena & celeris justitia ; ( and therefore commissions , goale deliveryes , ne homines diu detincantur in prisona ) but also that they should be before judges , bone gents & sages autersque des places : and that because the law would have . justice and mercy fairly mixed and marshalled together , that there may not be more haste then good speed , which that judge of whom our text speakes should have better considered then he did , and then he had avoided the terrour he fell into . for though true it be that justices of oyer and terminer may upon indictment found , proceed the same day against the party indicted , as appeares in h. . in the case of marks , the resolute bishop of carlisle , of empson the turbulent executor of the penal statutes h. . of bell e. . of bonham , elizabeth , and felton in our memory , and yet not be festinatum judicium , but as the enormities and proofs may be , prove though so speedily executed , most serious and good justice . yet in a dubious cause , and in that which concerns the life of one unnatural to their relations , where neither confession nor direct proof is , there upon presumptions , though never so vehement , or positive oath of suspected credit , as to the credit and veracity of the affirmer , to adjudge and warrant execution is very hard , because the judge is discernere per legem quid sit justum , and the law having entrusted him with a power of reprive , to the next session , that then better proof may come if any be , or favour be shewed them , if the proof be not found enough to take away the life . this i say a judge being enabled to doe and not according to his enablement doing is much to be blamed . and this our text instances in , to minde how dangerous suddenness is . for here was a woman accused and condemned for murther of her husband , and burned therefore , who was clear of it , and that by the confesson of a servant that did it , and owned afterward the fact , who besides that he charged himself onely with it , and was deservedly executed for it , did purge the woman executed from all hand in and all knowledge of it ; magistram suam uxorem ejus tunc combustam innocentem omnino fuisse de morte ejus ] so are the words of the text which shew not onely a plenary purgation of her , that was so speedily concluded the murtherer ; but also a sad sentence on himself for suffering an innocent person to be condemned for his offence , which was accompanied also with such a terrour to the judge , that he never clawed it off ( as we use to say ) but had the memory of it before his eyes , as his daily terrour and amazement . the consideration of which should make all men study temper and restraint of violence , and not indulge anger and fierceness of minde and action ; for that our lord reproves it in the disciples that would have called for fire from heaven , in those words , ye knew not of what spirit ye are , and instructs his to be slow to judge , and to bear with offences , as farr as wisely and safely we may rather then revenge them ; which augustus considering as great a piece of wisdom practised it towards timagenes , whom though he knew to be an intemperate and rude reviler of him , yet he permitted to be in pollio's house ; and though he charges pollio 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , pollio thou nourishest a wilde tigre or savage to me : yet he seises not on the miscreant , nor disfavours not pollio , but sayes fruere mi pollio , fruere , by which condescension he avoided all severity against him , and did not burthen himself with the bloud of a subject . nor shall any man have cause to repent of his lenity in a dubious cause , because it proceeds from goodness and likeness to god , and has his approbation of , and benediction on it , which the contrary has not ; for rash and sudden severities are the bratts of rage , which are repented of too late , if ever : witness the hard sentence on the good earl of lancaster , which cost the house of valence e. of pembrok , that had so deep a hand in it , extirpation ; and * judge morgan who ran mad , and cryed continually to have the lady iane taken away from him . o , 't is good to be slow in doubtful things , and not to suffer passion to precipitate ; for though it be sutable to iezabels rage and ahab's covetousness , to cain's envy and david's lust , to the iews malice and iudas his treachery : yet it is agreeable with no virtue in man , no love of or likeness to god , for his iudgements are alwayes just ; and in that he is said to go down & see whether the men of sodom and gomorrha have done altogether according to the cry of it which is come unto me , and if not i will know , so is the text , god as the chief-justice of the world teaches judges to consider their judgements before they deliver them : for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that temperament that is equally averse to rashness or sloth , is the best humour of a justicer , without which no learning or fidelity in a justicer can be meritful or valuable , nihil minus in duce perfecto quam festinationem temeritatemque convenire arbitrabatur . the experience of which is the reason of that position and rule of the law which sir edw. cook quotes from this chapter , and the editor of forteseue sets out in another letter , to shew , not that it is a transplant ( as i conceive ) from some authour unnamed , but that it is a golden sentence of his own , crebro in deliberationibus iudicia maturescunt , sed in accelerato processu nunquam , which is as much as if he had wrote , that moderate and prudent respite may dilucidate and clear up the way to a just determination , which in a speedy and heady course proves abortion of all profitable discovery . hence is it that our law being a law of justice and judgement , allows essoines as approaches thereto , so the chancellour sayes in the next words . quare leges angliae essonium admittunt , qualia non faciunt leges aliae mundi universae . as the lawes of england are for freedom lawes by themselves , as we call those things that have no fellows ; so are the lawes of england particular and singular in this point of essoining : for though other lawes , as heretofore i have shewed , have what is in proportion ( as it were ) the same to these essoines , yet essoines in the nature and diversity of them they have not . the word essoin is purely french , signifying want of ability in souldiers to hold or take a place ; thence essoiner , to excuse or discharge an absent or impotent person . in the assises of clarendon temps h. . essoniare is a word made latine by our historians , and used at large for any excuse ; so hoveden , no man was to lodge any stranger above one night in his house , unless he that is so entertained have a reasonable essoin and excuse : but the lawyers restrain it to such excuses as in real actions guilty persons make in the king's courts , or in the courts of their lords . these essoines at the common law are reported to be five , . de ultra mare . . de terra sancta . . de malo veniendi . . de malo lecti . . de servitio domini regis . of essoines the stat. of marlbridge c. . writes , and * sir edw. cook tells us on it , that they were instituted upon just and necessary causes ; and because they should not be used in feigned causes of delay , he that casts the essoin ought to be sworn that the cause thereof was just and true . it should seem at the common law oaths were not of old required , but men growing bold to misapply the just remedy of the law unjustly , the statute restrained oaths to extraordinary not ordinary essoines , that the reason of the excuse was necessary not dilatory , i mean , in essoines of great delay , such as were those of the service of the king , &c. which had great delay ; and therefore he that alledged that , was to swear , though in common essoines , which were but for a small term , no oath was required by the statute : for the end of these being the promotion of justice , if it appeared the party obtaining it otherwise designed it , 't would benefit him little , and injure the party as little ; for the judges , who hate delay , will admit excuses in no case without oath , but in in common essoines . besides these essoines there are other stops to proceedings at law , and those profitable ones , the text stiles them vtiles vocationes ad warrantiam ] of these (a) glanvil writes , and (b) littleton ; and the reason of the law is , that if i be bound to defend the title of another , as the tenant is to defend the title , then he that has the reversion , fee , or term , must not onely furnish him with deeds , if any he hath , but with such a proportion of money as is reasonable to that end ; and that because if my term which precedes his futurity fail , his expectance also fails : and he warrants to me , and warranty draws supply and recompense for all damages . the like is the reason of coparceners , quiréddent pro rata , si tenementum comparticipi allottatum evincatur ] saith our text. this is i suppose the sense of learned littleton , sect. . upon this reason , that where all have a joynt title , the eviction of part shall have contribution from the rest after an equal rate and proportion , because they all are of equal title and ought to be equal in profit and loss , according to that rule , cujus est lucrum ejus debet esse damnum , & è converso : and where many are concerned , their profit and loss shall be proportioned and allotted to them indifferently . and these are therefore called by our text res utiles , because they do not onely engage parties to joyn in defence , that estates be not recovered from the possessors of them ; but after recovery oblige to recompense the damage that contrary to the nature of their estate they sustain : and this being but rational and just , is therefore profitable to be effected . all these the lawes of england admitting , do not further thereby delay of pretence , which we call spinning out of time , which the text terms frivolae & infructuosae induciae ] like the parlyes of crafty souldiers with those that besiege them , whom they pretend discourse with in order to rendition , when 't is but to cease hostility till they be relieved , or have otherwise diversion : or like crafty and self-ended creditors , who pretend offers of composition with their debtors , whom by the hopes of it they keep from prosecutions of extremity , when as all the while they are designing escape and withdrawing themselves from them : or like cunning mistrisses , who pretend correspondencies with men whom they have designs upon , and them served , slight and desert them . the futility and fraudulent rottenness and inanity of which , operating nothing but frustration and circumvention , is the reason why frivolae & infructuosae are joyned with these induciae , and why the text explodes them allowance in the law : which further then they are ampliative of the truth , and not unreasonably prejudicial to the adverse party , the law allowes not . and if time and vice of man shall usher in any subdolous errour , by which the good intent of the law becomes void , then the law has a remedy ready for it , in omni parliamento amputari ipsae possunt . ] for that is the felicity of england , that parliaments are frequent , and the king in parliament by that serious and effectual power that resides in parliament , can either sweeten or reform the incovenience ; or if those seem not good to his sovereign and parliamentary judgement , amputari possunt , that is , they may be damned by a law , and cut from that root of inconvenience they to that time sprung from : so festus uses amputare for resecare vel abscindere ramos arborum , and tully amputare ramos miseriarum ; so amputata * circumcisaque inanitas pro sublata : and the reason is , because amputation is the remedy of pestilency , mortification , and gangrening , hence in tully , amputare quicquid & pestiferum . so that when our text tells us of reasonable delayes , it intends such as not fraud but favour , not craft but justice has introduced and continued ; but when of such as are minus accommodae ] that is , which are occasions of injury to particulars , and of loss to the whole which is composed of particulars , as the former it concludes proper to be continued , so these latter it judges necessary to be discharged , by that grand maul and battery of injustice and oppression , parliaments ; wherein not onely new risen and emergent evils are to be remedied prece subditorum , & consilio membrorum : but also any lawes in being , when they doe claudicare , that is , when by reason of age they grow dull and dispirited , as to the activity of their first creation . when they have either corns on their toes that make them tread gingerly and tenderly , or gouts and palsies that render them wholly unable to follow offenders smartly and quickly , when they doe claudicare ] that is , doe as plantus his taylor does , sit cross legged , still as a stone all day , when they are badger-footed and wont endure trial but fall short of the end , ex vulnere accepto claudicare as tully's words are , when lawes doe not tenorem servare aequabilem , as budaeus translates tully's actio claudicat , then are those lawes fit for parliaments , ( and blessed be god ) these physicians are of value to such valuable purposes . for from kings , lords spiritual and temporal , with commons in parliament , have the good additional lawes of england been made , i mean those wholesome statutes , which either restrained , explained , or added to the common-lawes , and which thereby have been , are , and i hope ever will be the daily cure of growing inconveniences , which mindes me daily to pray , in the words of the psalmist though in a variation of sense . give thy judgements , o lord unto the king , and thy righteousness to these the king's sons and subjects , that as the king delights to be a fountain of mercy and justice ; so his subjects as politique sons may be dutiful and aidant to him therein , that the nation may evermore bless and pray to god for this high court of parliament , under our gracious and religious king assembled , and enjoy good and beneficial lawes by their in strumentality . for by the meanes of parliament is it that england ever has , and ever will be happy ; since by them , the best lawes of the world have been either actually made , or possible so to be made , when they shall see cause of addition to or explication of the lawes made , which is that which our text intends by optimae in actu vel potentia . for as he can want nothing that either has actually every thing , or has that in his power which will procure every thing when his will pleaseth to apply his power thereunto ; so can that estate be defective in no point of good lawes , which either has good lawes in actu exercito , or has power to make the acts that are not , such as it would have them , since frustra est potentia quae non reducitur ad actum . and therefore the law being , that parliaments are frequently to be held , and those enabled to make laws of all sorts , recte concludi potest saies our text , that if good lawes there be not to answer all emergences , men are to blame , not the government ; for in that there is that sacredness which conveys optimacy to lawes , if not in actu , yet in potentia , if they be not already the best , they may be bested further , per potentiam reductam in actum . for the kings of england have been ever so gracious lords , that they have yeilded to all good and just lawes that their subjects in parliament have humbly presented them ; yea and the subjects of england have ever ( when themselves , and not seduced ) been so dutiful leiges , that they have desired nothing that their princes have had just cause to except against , but have so been principled with religion and order , that the law has been acknowledged by king and subject the just arbiter : and that conducted both king and people to happy improvements of good and durable advantages in prosequution of the oath of god , both on sovereign and subjects . so ends the chapter . chap. liv. princeps . leges illas nedum bonas , sed & optimas esse , &c. this conclusive chapter is designed by the chancellour in the person of the prince , as the recollection of all that has been written concerning the lawes in the former chapters of the dialogue , wherein the intent of the chancellour being , to present the lawes of england to his love and judgement , as not onely good but best for england , and that in whatever kinde time or men necessarily cal for either change or explication ; what , in those cases , is fit to be done , may be wisely and seasonably done by parliament , which considered , the prince is brought in acknowledging what heretofore the chancellour had written in the chapter in those words , legem illam bonam esse & efficacem adregni illius regimen ] which was in replication to his doubt chapter the fourteenth ; and which he seconds chap. . . . . . adding , that the kingdom of england being governed praestantissimis legibus ] his discourse of so superexcellent lawes cannot but be acceptable to the kings of england in all times ; and that because , as the knowledge of them is non inutilis doctrina ] so the exercise of such knowledge is the grace and peace of princes , who doe delectare regere legibus praestantissimis ] and who have then their regal care in a good degree lessenned , when they are instructed by equal lawes , and by them indifferently administred , and thereby thrive in the blessing of god , and the love and acclamation of their subjects . for as no end is attained without proper meanes conducing thereunto , which is apparent in mechaniques , wherein a good figure is not formed without good tooles , but be the designer the skillfull est man in the world ; yet ineptio instrumenti ] that is , the incongruity and unhandiness of the tool indisposes to a compleat artifice . ( for ineptio & ineptus signifies every thing of defect and imparity ; thus (a) causa inepta in terence , (b) chartae ineptae in horace , (c) labor ineptus in pliny , (d) lusus inepti in ovid , and thus ineptire pro facere aut dicere , quod neque loco , neque tempori , neque rebus , neque personis conveniat , are to be understood . ) i say our text mentioning ineptio instrumenti , as that which does fastidire , not onely not make work pleasing to the workman , but tedious , for so fastidire aliquem signifies , hence fastidire preces in livy , and aestus fastidit amictum in (e) claudian , implies that fitness to every purpose makes men excellent and acceptable in it . et militem ignavum reddit debilitas lanciae & mucronis ] that is when a man dare not trust on the strength and toughness of his weapon , and the truth of its edge , that it will doe execution and keep off an enemy , though he press hard on him . for lances , the weapons of h. time , if they were not of well growne , well seasoned , and stiff materials , if they would bend this and that way with the body of him whom it touched , yet dismounted not or took off from further trial of honour ; or if the point of it would not pierce the clothes and light defences of antagonists , but when they come to close fight , their edgeless armes , drew no bloud , did no execution , such disanimations eclipse men of valour , and make them disappear on action : so doe lawes that are unfit and not congruous to people , toyle out a magistrate , and make him live and govern displeasingly , because the engines whereby he should doe , move not agilely , nor evenly , but have unequal pulses , being either too short or too long , too severe or too lax , too merciful or too just . which since the lawes of england are not but every way fitted to the government of england , so that in the safety and preservation of them , all honest men doe think the welfare of their countrey doth consist , so said * the best and knowing'st immortal mortal of his time . the monarchs of england have ever had great encouragement as to rule by the lawes , so to know the lawes they are to rule by . for as that of vegetius quoted by saint thomas , or aegidius romanus is true , that a souldier is heartned on to battel when he has fit armes , and competent knowledge to use them , when he knowes what he enterprises and delights in it , as it is the object of his intellect and by reason thereof is not strange to him , quia nemo facere metuit quod se bene didicisse confidit as the text's words are ] so is it in government . no magnetique is more potent , no inducement more cogent , then lawes of reverence to princes and punishments of the contrary , then power to defend , protect , order , reward , punish , all which being due to princes by the law of england , they have great encouragement to adorn their province , to go on couragiously , and to proceed to know more and more of the law , which is thus a buckler to them , and a beautifyer of them . for though as i wrote before in the notes on the eighth chapter , a prince is not to be expected so furnished with discreta determinataque peritia & scientia ] as a justice has need to be ; yet in the nature and forme , in the general and inchoate knowledge of it , he must have insight . for as those passages of fathers and scriptures which require in a prince scripturarum divinarum peritiam ] and ascribe to a prince infallible knowledge , according to that of the wiseman a divine sentence is in the lips of the king , therefore he shall not err in judgement ; yet are to be understood not of profound and indeterminate knowledge of scripture , but onely of such proportions as are convenient for direction and judgement in conducts and administrations of piety to god and men , i say ; as these are then answered according to scripture-requiries , when there is the day-starr from on high visiting princes in holy and serious resolutions of walking humbly before god , and prudently in the sight of men ; then a prince that does it may well be said to know the scriptures like a good christian , though not like a workman that needs not to be ashamed , that is , to the proportion of a thorough-read divine . for though it tends much to princes lustre and admiration , that they , as christians , know much of the depths of holy learning , vt decet sacra theologiae professorem ] as our text's words are , and as king iames and king charles the first , princes of eternal memory , to the admiration of all men are acknowledged to excell in , and it to evidence in their writings , which are memorable and matchless remains of their regal judgement and piety in the knowledge of the mysteries of our holy religion , and of the law of god the rule of it . i say , though to be scientifique to this proportion be the glory of them ; yet , earum in confuso degustare sententias ] less proportions in our chancellour's sense would have creditably adorned them , because they have councils in sacris , whose place it is to know the more cryptique parts of scripture knowledge : so that princes need not vitam profundere , omnes nervos intendere , & omnem ingenii vim applicare , as tully phrases it ; not are princes to be put upon such exactnesses as reside in those who endeavour to do by sacred science , as he in plautus is brought in , saying , ejus nunc regiones , limites , confinia determinabo , & rei finitor factus sum ego . thus spiritu & arte determinare , which pliny makes the meta ultima of criticalness , is that which the text presses not to ; for it mentions onely in confuso sententias degustare , which is leviter & intranscursu attingere , as (a) quintilian's note is on those words , degustanda tamen haec prooemio non consummanda ; and as (b) tacitus translates it in that speech to galba , imperium , & tu galba , quandoque degustabis , and (c) tully in that passage , aliquid speculae ex sermone alicujus degustare , id est , aliquantum spei concipere . as thus then the prince , as a christian , being versed in scripture-learning , may be well accounted in * belvasensis his words quoted in our text , scripturarum divinarum habere peritiam : ] so by understanding the law in the sense we have in all humility ( and under pardon of our betters ) prediscoursed of , ( respect being had in the plenaryness of knowledge and learning thereof to the reverend judges , the great masters of that science , who are the prince's counsel , and by whom he distributes his justice to his people ) the prince may be said to understand the law , his interest , and preservation , and accordingly to be encouraged to undergo the great and god-like charge of government chearfully ; for that the text's rule is , nemo facere metuit qui se bene didicisse confidit . for since ignorance causes fear , and knowledge confidence , the chancellour presses the prince to know the law , that he may trust in it , as that which best warrants government , and most enables him to a courageous managery of it , which that holy miracle of devotion and magnanimity , whom all generations for it shall call blessed , our late blessed sovereign king charles , had so much the conviction of , that he applyes to his great son , our now gracious trajan , this counsel , rather to be charles le bon then le grand , good then great ; for the true glory of princes consists in advancing god's glory , in the maintenance of true religion and the churches good , also in the dispensation of civil power , with justice and honour to the publick peace . piety will make you prosperous , at least it will keep you from being miserable ; nor is he much a loser that loses all , yet saveth his own soul at last . sic & fecerunt carolus magnus , ludovicus filius ejus , robertus quondam rex franciae , qui hanc scripsit sequentiam , veni spiritus , adsit nobis gratia . here the text presidents the prince by the great examples of france , which he is so much taken with , to be excellently accomplished both in the knowledge of god and the law of his government ; and that upon the account , that princes great in reputation and glory , have thereby attained those eminencies , by name charles the great , charlemaine as the french historians call him , who , as he was the founder of the french empire , so did excell in all those gifts and graces of minde which were requisite to make a charle-maine : for he was carefully instructed in religion , which he honoured and loved with reverence all his life time , and likewise the churches pastors , charity , temperance , equity , care of justice , relief of the poor , to keep his faith both to friend and foe , to use victory modestly , were the notable effects of his excellent knowledge ; he by nature loved learning and learned men , be called humane sciences his pastimes , he built the vniversities of paris and pisa , he honoured the lawes of the land , nothing would he doe without advice of the three estates , he took not the empire but with consent of the romans who elected him , the good old lawes of the empire he confirmed , and excellent new ones he added , church-affairs much disordered he settled by five councils , mentz , tours , challons , rheimes , arles , all congregated to settle and reform it , which settlement he caused to be published in a book called capitula caroli magni , when he was years old , and had ended the warrs , he spent three whole years in his study , reading the bible and saint augustine : thus sayes the story of charles the great . good things also record they of lewis his son , named in our text , who was called ludovicus pius , not in * reproach to his kingless sloath , for which , losing all his dominions , he was stiled lewis the gentle ; but for that he was of most excellent temper , and did patrizate though not in fortunateness , yet in intentness on meditation of scripture and good books : as long after did lewis the ninth , whom historians call the saint , leading a life worthy a king , loving and honouring religion with much zeal and respect , taking delight in reading the holy scriptures , the which he caused to be translated into the french tongue , he had a good , just , and sober soul , &c. et robertus quondam rex franciae ] this robert was the king of france , son of hugh capet , and was so noted for piety , that he is called robertus pius . helgaldus in his life sayes so much of him , as more of admiration and super-superlative character cannot be written , that he was the standard-example of civil life , the patient embracer of all the casualties of mortality , devout to god , making the church his content , and the humility of a sinner in it his dayly delight , simplicity of soul he loved , contemned and pardoned injuries , avoided excess both in dress and dyet , was a man of notable eloquence , taken up wholly in reading and meditating david's psalter , a great benefactor to the church , having a priestly minde in a king's estate and person ; which so contributed to his acceptance in what ever he said or did , that the responsals , which our text calls the sequence , spiritus sanctus adsit nobis gratia , &c. ] are said to be his this and much more is he famed for in chronicle . these , together with other princes of france famous for piety , philip , lewis the seventh , and lewis the ninth , who reigned all long and desiredly , are by our chancellour from belvacensis presented to the prince , as the notable examples of piety and probity , which are the chiefest ornaments of princes , and which being efficacious and in very truth in them , disposes them to the right use of power ; which is not more to consider themselves placed by god and the lawes in an uncontroulable heighth , ( which no subjects must or ought , to dare to set themselves to insolently confront or abate , the rule being in the doctors , imperator gerit omnia iura in scrinio pectoris , ( by which they are made sole lords of lawes ) whereby to incline them to do what they in the latitude of such power may , as men of might in the full swoop and swinge of their absolute power do ) then to solicit and remember them , that though they are accountable to no man or tribunal here , yet to god and the majesty and jurisdiction of his divine absoluteness , whose vassals the mighty monarchs of the world are , they are responsible . and therefore as the chancellour began , and has hitherto prosequuted this discourse of the commendation of the lawes of england , to beget in the prince a desire to know what is just and unjust by the law , and that law the law of england , and the measure of that justice by the law , has acquainted him with , and earnestly invited him to make the object of his love and choice ; so does he here in this conclusion inculcate the sense of these prementioned designs of his love , evidenced in those familiar , friendly , and loyal applications to him , which the prince in the dialogue is brought in so to resent , that he not onely yields to the chancellour's swasion , as appears in those words , quia , cancellarie , ad legum angliae disciplinatum mihi jam conspicio sufficienter esse suasum , &c. but subjoyns a relaxation to the gravity and goodness of his love and learning therein from any further travel or argument in satisfaction to his youth , non te amplius hujus praetextu solicitare conabor ] saith he : and as a towardly and grateful prince , who well understood the profit and benefit of his discipline , entreats him to a further procedure in methodizing the law , and in regulating his studies therein , that so he may attain to the knowledge of the english law , which is the glory for english princes to know that they may love , and love that they may conform their publick administrations thereunto . this is that which the personated prince is here mentioned obnixè deposcere , that is , not faintly and formally , but cum conatu , instanter , totis viribus , to desire and long after ; ( for deposcere is a verb of vehemence , so caesar uses deposcere omnibus pollicitationibus ac praemiis for earnest and not to be denyed attacking , leaving no stone untryed and unremoved : non modo non recusem , sed appetam atque etiam deposcam is tully's . ) and that upon resolution of conviction , that as the chancellour was no * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , no gracchus , making a great noise to no purpose , or in our proverb 's language , a great cry and a little wool ; nor did he in his discourse and the arguments of it , apologum alcinoi introducere , as they do ingratefully enough to wise men , who frame arguments from impertinent fabulosities , no such trite , nugatory , theatrique trifler was our text-master : but as one that had himself imbibed the law , and by the practical science of it had connaturalated the reason of it to his minde , which was fully possessed of it , and was able to possess others with the love and understanding of it , he draws off the prince from his prepossessions , and makes him a convert of that courage that he bids defiance to all other lawes in competition with it ; for his approbation of its fitness to the temper and people of england , the incomparison between which and it he makes as wide and impossible to be rationally reconciled , as to compare the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which precedes the sun and has the preheminence of all starrs in the influence of the world , lucifer ] to the other starrs , which are as farr beneath it as heaven and earth , or the utmost opposites in nature are remote from each other . not but that the prince approves other lawes as highly for other countryes , as the common and statute-lawes for this ; but that he would conclude as he began , being still the same he was in the fixedness of a well-ballasted judgement , he supersedes his further address to him and progress in this dialogue , giving humble and hearty thanks to god who is alpha & omega , qui ea incipit , prosecutus est , & finivit , as his words are . ] for god alone it is that excites us to , encourages us in , preserves us for , and crowns us with ability to serve his glory in all honest and worthy undertakings : and to him , as the onely giver of every good and perfect gift , does my prostrate and grateful soul ascribe the onely praise and power of this my weak enablement to finish this undertaking . for notwithstanding those flattering hyperbole's which vain men are apt to excurr in , as he vapouringly did who encomiated archimedes in those words , quod ad geometriam attinet deum aliquem in ea fuisse archimedem , there is too too just cause for all men to debase themselves before god , and to acknowledge all that they know is but ignorance to the light of his omniscience : and that whatever is theirs in the clarity of speculation , is but mutuated from that primaeve and architectonique light , which enlighteneth all that come to , and live in , the world. this , this , being the mercy sprung from on high visiting me in the darkness , errour , and ignorance of my sinful minde , and raising me up from the grave into which i was almost * gone while this was composing , and from which this goodness and favour of god ( which i beg may be ever legible in my heart and life ) raising me when others have miscarryed , as did father pradus in his comment on ezechiel , and villalpandus , who perfecting pradus his unaccomplished endeavour , dyed also at rome , what remains , but that as god has given me a new life to perfect ( though in a weak and worthless measure ) this endeavour ; so i hope he will give me a will to improve every advantage his providence ministers to me to his glory , and the good of the men with whom , and age in which , i live . the authour's conclusion . i shall conclude all with the epilogue of the grave and learned littleton , que ieo voil que tu croies , &c. i would not have thee ( reader ) believe , that all which i have said in these [ commentaries ] is law , or apprehended by me void of mistake , ] for i will not presume to take this upon me , but of those things that are not law , enquire . and albeit certain things which are moved and specified in these commentaryes be not altogether law , nor in every particular such as men of deeper judgement would produce : yet what is in all love and humility offered thee may make thee in some measure more apt to understand and apprehend the reason and arguments of our text-master , drawn from , and quoted for , the honour and establishment of the lawes . for my intention is not to blazon an ambition to seem to know much , or by a dictatorian confidence to impose upon thee any thing against thy reason and better skill , but to continue some memorial of what the learning of former men and times has instructed me in to the benefit of those that shall live after me . and i pray god i may attain to that high and onely to be emulated degree of learning , to know how to be truely humble and generously modest , considering that of the apostle , god resisteth the proud but he giveth grace to the humble , which sir edward cook comments well upon in that aphorism , which on littleton's epilogue he recites , nulla virtus , nulla scientia , locum suum & dignitatem conservare potest sine modestia . scripsi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . operam da ut vivus laudabilis , mortuus autem beatus judiceris . antagenes apud stobaeum , serm . literarum scientiam justam , juveni morum temperantiam , seni solatia vitae afferre , in rebus secundis ornamentum , in adversis subsidium esse . budaeus in lib. de studio literarum recte instituendo . a table of the principal heads and material things contained in these commentaryes . a allegiance due to the king's person . page by the law of nature . ibid. due to kings qua-such , and not onely when good , but when evil also . ibid. danger of limiting allegiance to one capacity of the king , excluding the other p. affliction good for men . p. acclamations of people to good princes . p. , aristotle the philosopher worthily so called . p. the subject of envy at home . p. ill used now dead . ibid. arts derided by ignorance . p. none can rightly value arts but artists . p. every artist loves his own art best . p. , absit ] what it imports . p. adjuration , what it imports . p. apocryphal books not divine . p. apprentices at law. p. , , & seq . absolute power has no limitation . p. , , , &c. absolute government instituted first as a punishment . p. , the original of absolute monarchy . p. , of it . p. angels have more power then men , in what sense . p. , attaint of iuries for perjury , the great punishment of it . p. ad altum mare , what the admirals power on it is . p. , b bishops , governours of the church , ought to know more then other men . p. , kingdoms , bodyes-politique are compared to bodyes-natural , the king the head , the law the heart , &c. p. , , brute the first monarch probably . p. bayliwicks what . p. , bastardy . p. ad c catholique and catholici . p. , roman church no more catholique then any other church . p. the countenance is the glass of the soul. p. good counsel welcome to good men . p. custom to do acts of virtue will make virtue delightful to us . p good counsel despised , dangerous . p. children to be educated according to their genius . p. , on their breeding depends ordinarily their proof . p. , customs what they are and import . p. , causes , elements , and principles , what. p. charity . p corporations , how first , very ancient . p. , , civil law highly respected as in right it ought . p. , , , , conquests of us by romans , saxons , danes , and normans . p. , , &c. conquests change lawes and language . p. , , , &c. common law and civil law not to be hostilely compared . p. chastity a fresident of it . p. , , , contracts what . , countyes what . , , criminal causes how the law of england proceeds in . p. , & seq . cardinals , when created , what they are , and how difficult 't is to accuse them though never so facinorous . p. , corpus comitatus what , and how altum mare is extra corpus comitatus . p. clandestine marriage forbidden . à p. ad commons of france miserably poor . p. ad children bond or free as their mothers are by the civil law. p. courts of princes , when good nurseryes of youth-nobility . p. , , &c. cards and dice how to be used , and how not . p. , , d princes as well as others have their delights . p deuteronomy why prescribed to be read by the prince . p. doctus , what sense it has . p. . depilatio , what it signifies . p. . daemons , what . p. dispensations when lawful in matters that relate to conscience . p. ● many things dispensed with , that are n●● legitimated . p. delayes hated by the law. p. ad e the eye the chief organ in man. p. escheats , what in our and the civil law. p . elements , what they are in the law as well as other arts. p. , elders evil . p. , , england , the commendation of it . p. ad england a free government compared with that of france . p ad . & ad essoines allowed by law , how and why . p. ad f fortune does not ever favour worth . p. fear of god what , and the different natures of fear with the effects of it . p. , , , , , , & seq . felicity , wherein it consists . p felicity , wherein it consists . p felicity and beatitude all one . ibid. it consists in virtue . p. , faith , hope , charity . p. french government tends to misery of subjects . p. , ad father of the childe he is whose the marriage is , and whom such to be , that declares . p , & seq . the denomination of the childe as to bondage and freedom , follows the father . p. , &c. french tongue much prevailed till the e. . see the mischief . p. , , g great men ought to have great mindes p. gratitude is quick and sure in repaying kindnesses . p. , grace of god must make the law effectual to teach iustice. p. grace of god what and how called . p. it must conduct us to and concurr with us in all good . p. , , , greatness had need of grace , grammar , the parts of it , and what they import . p. , gentlemen , famous by virtue p. intemperate and deceitful gaming forbidden . p. , , h hope . p. humane lawes , either the law of nature , customs , or statutes . p. ad heritage and heirs . p. , husband and wife , one flesh , how . p. i ignorance of the law , a fault in the prince . p. iustice defined by the law of every government . ibid. iudges , their charge and honour . p. iustice , what it is , and how excellent . p. iustice of the law makes the law amiable . p. , iustice of the areopagites . p. iustice is the soul and life of all beauty in things and men . p. , instruction given princes by god. p. , , vicious mindes hate instruction . p. instructions and counsel in scripture for all occasions . p. , iudges iudgements , in a sense , the king's iudgements ; in what sense better by iudges then by kings in person . p. , , industry what . p. , iudges , what manner of men they are to be . , , , and what degrees of learning to have above princes . p. , iustices of the king's courts their habits , appointment to their office , and placing by the lord chancellour . p. ad impositions not to be laid but by authority of parliament . p. , , , iudges are not to see offenders tortured p. , , ● seq . injuries . p. , iuryes . p. ad & iuryes how kept in integrity . p. , impositions upon every thing in france . p. ad illegitimate children who . p. . & seq . inns of court what , and how ruled and ordered . p. , . & seq . none but nobiles were to be of them , that is , gentlemen of bloud . p. , all gentile qualities learned in them . p. , , the order and government of them . p. ad k kings ex officio manage their people in warr by conduct and courage , in peace by right-judging them . p. kings have great prerogatives . p. kings make the law their wills . p. , kings and tyrants differ . ibid. kings should divide their times between arts and arms. p. , , kings subject to god , though to none but god. ibid. & p. kings in what sense absolute . p. kings ought not to be ignorant of the law. p. & kings have great cares with their crowne . p. knowledge of the measure of our love to the law. p. , , , , , , wisemen love no kickshawes in words . p. knowledge of faith , hope , and charity , the knowledge of the whole law of god. p. , what knowledg of the lawes is necessary for a prince . p. , , , , & seq . kings cannot doe what by their lawes they cannot doe . p. , , , & seq . kingly government an happyness . p. , , where the rule is not by the will but by the law. p. , kings how useful and sovereign they are to their people as heads of them . p. , , , , kingdoms compared to natural bodyes . p. , &c. l law the king's will in what sense . p. the king's will the law , how and how not . ibid. the law of god is to be written by the king out of the copy with the priests , why ? p. the law ought to be known by the king. p. lawes , civil , of nature , nations , common lawes . p. , , civil lawes where , and in what authours contained p. lawes of england whence originated . p. martial affairs ought not to steal away the princes love from the law of his country and government . p. , levitical priesthood what , and how different from the evangelique one . p. , literati qui. p. humane lawes where just , have god their authour . p. , , , , law-givers venerable . p. lawes , what the ancients stiled them , and the reverence they gave to them . p. , lawes ought to be just , and holy , and good ; and those that are not , lose the desert of being sacred lawes . p. , , lawes are to be accommodated to men and things . p. , lawes of men when just , are in a sense the lawes of god. p. , lawes are to be taught the people from god's law p. lawyers in what sense called sacerdotes . p. , some lawes of men are unjust . p. , lawes are rules durable , immoveable . p. law makes men in a civil sense happy . p. , not to know the law , is in a prince a kinde of enmity to it . p. knowledge of the law prevents inconveniencies . p. knowledge got by time and industry . p. lawes of england how , and how not , to be altered . p. , , & seq . , lawes of england the best for england , as the civil lawes are the best for the empire . p. &c. lawes of england have nothing cruel in them . p. lawes of england not contrary to the law of god in the case of iuryes . p. lawes of england favour liberty . p. law , though it grants essoines , yet hates delay unnecessary and injurious . p. . &c. m moses a famous law giver and captain . p. his excellencies above those of the caesars . p. god's endowments extraordinary of him , sutable to his employments extraordinary . p. , ministers are to be , where they may be , episcopally ordained . p. man being in the image of god , ought to affect learning and knowledge . p. . maxims , what they are . p. , mysteries of religion . p. mix'd government , regal with politique , god's government and moses his government . p. , , absolute monarchy when , and in whom began , together with the fierceness of it . p. , , , marriage of ministers lawful and convenient , where , and where not . p. , marriage clandestine unlawful when 't is such , and why forbidden . p. , marriage subsequent legitimates not antenate children . p. , & seq . mothers by the civil law being bond or free , make the childe so . p musique , learned by inns of court men , how excellent in them . the praise of musique . p , n the nobles in france trample upon the peasantry . p. , &c. natural sons who , and what . p. nobles , how best bred . p. ad number of iudges in the king's courts . p. o orators make good prefaces . p. ordination according to the reception of the catholique church , necessary to a minister . p. obedience due to the higher powers by the law of god. p. orphans to whom by both lawes committed . p. , , &c. p a princely virtue , serenity . p. warlike exercises the delights of princes . p. the ancients thought no virtue so proper to princes as chivalry . p. what exercises of manhood are princely . ibid. powers are to be obeyed for god. p. philosophers who and what they were . p. philosophers , though they differ in the names of things , yet agree in the main . p. princes great authours of good to people . p. , peritus , what signification it has . p principles , what they are . p , , , parables why and what . p. , , princes may attain law-learning in a short time , if they please to intend it . p. , politique government mix'd with regal , what , and how excellent . p. power absolute may do any thing . p. , &c. in what sense quod principi placuit legis habet vigorem , is true . p. , polling and peeling of subjects , what . p. parliaments onely lay legal charges on the people . p. , , politique government with regal , the government that would have been in innocence if man had stood , and that which was the government of moses and the iudges . p. , how politique governments began . p , & seq . ad , & ad princely spirits act greatness in exigencies . p. power is then onely power , when it acts virtously . p , , &c. parliaments , their number and nature . p. acts of parliament , when durable and when not . p. , parliaments are senates of wisdom . p. priests , where misguided , apt to do evil . p. , , purgatory , an invention . p. , , publique spiritedness , as well as learning , the virtue of fortescue . p. , &c. r righteousness , the darling of christ , eminent in him , and rewarded by god. p. , rules and maxims , what they are . p. , restitution of the king , lords , and secluded members , a mercy . p. , racks usual in france , not here . p. , &c. revelling or dancing used in inns of court. p. robes what , where read of long robes . p. respite of appearance called essoines , allowed . p. , &c. s serenissimus , the title of sovereign princes . p. serenity , what it is . p. , solomon a wise king , and a president to kings . p. , , subjects free , how and how not . p. servants ought to know , that they may doe their master's will. p. , sacerdotes , who . p. , sciences have a connexion and dependance each with other . p wisemen vilifie science in no man. p. sacraments of christ , which . p. serjeants at law. p. , , & serjeants at law their ceremony , habits , &c. p ad study in the laws well methoded for the time of it . p. , , scotland , an homage kingdom to us . p. security of subjects a great end of government . p , , how subjects are well pleased . p. statutes how passed in parliament . p. , , not to be revoked by the same authority that established them . p. , spirits of men in great actions excited by god. p. , scholes . p. satan how s●ffered to torment good and evil men . p. sheriffs what , and how chosen . p. , &c. sheep abundant in england , the profit of them . p. , & seq . good rules for a student of the law. p. singing what , and to what end taught in the inns of court. p. , sudies of law or inns of court , the nature and manner of them in a discourse purposely about them . p. ad sitting , a posture of authority , therefore the iustices doe sit on the bench. p. solemnity of placing a iustice in the king's courts . p. , set times for sitting in the courts . p. slowness sometimes an help to iustice. p. , &c. sanguinary severity odious in a iudge . p t time , what it is . p. , tallages not to be imposed but by consent of parliament , and what tallages are . p. , , , , tryals by witnesses , by civil law : tryals by iuryes and witnesses per legem communem . p. , &c. tryals by the civil law. p , , treason , what . p. , , torments usual in france , not here , punishments by canon law. p. , , torments allowed by the civil law in criminal cases where witnesses are wanting . p. , truth is not alwayes discovered by them . p. , , & seq . torments are hellish furies . see the effects of them . p. ad terrours of god in the soul. p. , &c. theft manifest and not manifest . p. , &c. time well spent in the inns of court , hallda●es in the morning at the courts , in after-noons at the sudy , on festival dayes in reading of scripture and the chonicles . p , , , & travel when dangerous for youth , and oftner occasion of ruine then advantage . p. v virtue the way to felicity and beatitude . p. virtue much the effect of custom . p. vniversities , the places wherein sciences are taught . p , &c. w readyness of wit will do much to get art . p. , &c. witnesses how in danger to be corrupted , see examples of two witnesses suborned in several cases . p. , &c. wisdom of the children of this world , and of the children of light . p. , & seq . women good and bad . p. , what witnesses the law allowes not . p. women are in account of law as their husbands are , except in certain cases . p. ad wives are onely conspicuous as their husbands illustrate them . p. , , &c. women should have a care to marry brave men that may honour them . ibid. writs original and iudicial . p. , finis . the authour's request to the reader . though i have endeavoured by an unusual inspection , to avoid all mistakes in the press ; yet some have unhappily intruded themselves , which if thy ingenuity encline thee to pardon and correct , thou shalt highly oblige me , who , what ever this may prove , intend well in it to thy benefit : be pleased therefore to rectifie the errata's as followeth . page . lin . read it . p. . l. . r. also . p. . l. . r. had . l. . r. vivendi . p. . l. . r. detrahimus . l. . r. for we . l. . r. sempronius . l. . r. england , p. . l. . r. christ. p. . l. . r. doctrinaeque . p. . l. . r. apposite . p. . l. . r. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . l. . r. this . l. . r. lordly . ibid. r. with which . p. . l. r. servilizes . p. . l. . r. considerable . p. . l . r. insuperability . p. . l. . r. need . p. . l. . r. preservation . p. . l. . r. have . p. . l. . r. that . l. . r. for p. . l. . r. as . p. . l. . r. hic . p. . l. . r. addictions . p. . l. . r. care . p. . l. . r. of p. . l. . r. just . l. . r. time to come after us . p. . l. . r. was . p. . l. . r. his . p. . l. . r. george the artist . p. . l. . r. mettle . p. . l. . r. his . p. . l. . r. a for and. l. . r. but. p. . l. . r. had . p. . l. . r. ingenious . p. . l. ult . r. king. p. . l. . r. to the law. p. . l. . r. whom . p. . l. . r. e. . p. . l. . r. could not doe . p. . l. . r. thing . p. . l. . r. to them . p. . l. . r. lawes . p. . l. . r. profession . p. . l. . r. by . p. . l. . r. a. p. . l. ult . r. dissolute . p. . l. . r. is . p . l. . r. repressing . p. . l. . r. not . p. . l. . r. other . p. . l. . r. temerity . p. . l. . r. obstinate . p. . l. . r. timid . p. . l. . r. ministerial , but. p. . l. . d. not onely . p. . l. . r. . . . d. l. . . . . d. p. . l. . d. th●y . p. . l. . r. mercer . p. . l. . r. a. p. . l. . d. has . p. . l. . r. indivisible . p. . l. . r. many more . p. . l. . r. exceed . p. . l. . d. to . r. in . l. . r. sonantes .. ip . . l. . r. chancellour . d. ) p. . l. . r. erectus a. p. . r. for. p. . l. ult . r. but. p. . d. isagoge moral . philosoph . in marg . in the introduction p. . l . d in . p. . l. . r. gentile . p. . l. . r. isabel. notes, typically marginal, from the original text notes for div a -e in epistol . dedicator ante annot. in pandect . notes for div a -e dialogus est oratio , in qua disputantes introducuntur quotquot authori libiserit . cic. ad attic . lib. ▪ lilius gyraldus , syntag. . de diis . p. . forte scutum salus ducum . fortescue's motte . tholoss . syntag. juris . lib. . ● . . ss . de mutations nominis . river . exercit. . in genes . . (a) hine colligunt hebraei adamum insignem philosoplium fuisse , qui naturas ornnium animalium probe tenuerit , ut inde juxta naturam ac proprietatem suam cuique suum nomen indiderit . fagius in gen. . . (b) geograph . sacrae , p. . & p. . . tholoss . syntagm . juris . lib. . c. . (c) isidor . origin . lib. . c. . (d) de nominibus romanis , c. . p. . ed sylburg . lilius gyraldus . syntagus . de mu-sis . hist. deorum . syntagm . . no●en dici putant quod rem notam faciat , sitque velut rerum imago . manertus apud tholoss . syntagm . juris . lib. . c. . epist. dedicatory before fortescue . pitsaeus p. . selden ' s notes on fortescue . to the reader . rot. parent . . h. . membr . fortescue ' s descent by father and mother . a most worthy kinsman . lege forcatulum lib. . de gallerum imperio & philosophia . salmuth . in páncirol . part. . p. . locus is in quo celebrantur ludi forenses , fossis , cancellis , aut aliis id genus septis erde circumscriptus . erasin . adag . . chil. . cent. . cui alludit cicero lib. . de oratore . et quasicertarum artium sorenseb●s cancellis circumscriptam scientiam . idem in actionibus , ab his cancellis quibas me circumscripst , declinav●ro . budaeus in pandect . p. . edit . vascos . variarum . lib. . c. . lib. . c . p. ; edit . seld. glos. p. ; budaeus loc● pracit . selden epistle before his book . spelman in gloss p. . (a) in introduct . materia ante fortescutum ex impress . edw. whitchurch . cum priuilegio . temps . h. . dominus cancellarius angliae constitutas fucrit . coke preface to . rep. instir. in ed. . stat. de militibus . see my defence of armes and armory . photius in excerptis ex olympiod . p. . edit . sylburg . though i know there is more probability in that opinion , which our books are of , that rise of it from the baculus , which the tyrones novitii , who had suffered their launces to be broken , which was a deviction in their hastiludia , and torneaments , did bear , and thence were called baccalaurei : which the strenuest souldiers after were called by . so m. paris p. . l. . p. . l. . p. . l. . petrus blesensis . serm. . p. . edit . london . p. . rot. patent . h. ● . part . . in claus. h. . in . rot. in turr. dorso 〈◊〉 . parliamenti . caelius rhodigin , lib. . c. . in lib. . aeneid . non panitendum imperatorem egisset , si diutius illi per cononem & leonem , orientis praefectos , imperaro licuis●et . egnatius in theodosio adramiteno . rex longe pientior , quam imperio forinnatior . leland . de h. . in cygnea cantione . holingshed . p. . hollingshed , p. . holingshed . p. . pag. . god an avenger of innocent bloud . idem loco pr●cit . pag. . pag. . pag. . pag. . spelman , ante glossàrium . notes for div a -e mihi non effundere videtur oration●m , sed fundere . seneca ep. . in notitia dignitatis utriusque imperii , à p. . ad p. . & c. . alciatus & brechaeus ad legem . in lib. de verborum significatione p. . de opi●ic . c. . animosa vox videtur , & regia . cùm sit stultissima senec. lib. . benef. c. . dion cass. lib. ● . p. . lib. . p. . ● . . q. eliz. k. j. charl. . cic. ad brutum lib. . ep. . c. . de consol. . vers. lib. ▪ ep. . in augusto . pag. . plutarch . in adver● . stoicos p. . edit . parisiens . cic. . tuscul. ep : ad. lucil. epist. . lib quod deterius potiori insidiari soloat p. . lib. de septenar . & festis p. . cic. . tusc. lib. . de ben● . fic . . adag . . chil. . cent. . p. . iliad . x. v. . in jugurth . d'avila p. . lib. . do clem : p. , . holingshed p. . lib. de educ . liberis . p. . aemilius probus lib. . c. . nicephor lib. . c. . & lib. . . schrivelius in epist dedic . ante iliad . homer . edit . . sabellicus lib. , ennead . . plutarchus lib. de exilio . p. . adag . chil. , cent. p. , . lib. . de finibus . ad quint. fratr . lib. . veri boni avi peras ●●ta est , ●ence . ep. . . de oratore . pro sylla . plutarch in gryll p. ● . edit . paris . holingshed , p. . petulantium libidinem , inxu . riam , avarniam , cr●delitatem sensim quidem prim● & occ●●ltè , veiut juvenili errore exercuit . sueton. in nerone cap. . d'avila . p . spotswood's history , scotland , p. . seneca natural . quast . lib. . p. . d'avila . p. . cent. . chil. . adag . . ep. . e●dem loco . ep. . vnicuique nostrûm padagogum dari deum non quidem ordinarium , sed hunc inferioris note , ex corum numero , quos ovidius ait de plebe dcos . senec. ep. . libro de fortuna romanorum . plau. in trinummo . in panegyr . hic princeps suo beneficio tutus nihil praesidi●s eget : arma ornamenti cansa babet . senec . lib. . clem. p. . patrem quidem patriae appellavimus , ut sciret datam sibi esse in potestarem patriam quae est temperatissima . liberis consulens . suáque post illos pone●s . idem sodem loco . hist. scotland . p. . d' avila p. . nullâviverborum nullâ ingenii sacultate exprimi potest , quantum opus sit , quám laudabile , qu ámque nanquam à memoria hominum exiturum posse hoc dicere , parentibus meis parui , cessi imperio corum , five aquuns , five iniquum fuit , obsequentem sub● missúmque me praebui , ad hos unum contumax fui , nè beneficiis vincerer senec. lib. . de beneficiis p. . quis ergò magis naturam rerum ignorat , quàm qui optimo ejus operi & commendatisismo hoc ferum & perniciosum vitiu● assignat . seneca de iral . . p. dum in pace esse possumus , non arma induamus . egnatius in vita ejusp . . edit . sylburg . aelius spartianus , p. . edit . sylb. nullum orna mentum principis fastidio dignius pulchriús que est , quàm ella corona , observatos cives . seneca lib. . de clem. ad sinem . quem in socordis principis invidiam cives facilè admisère . egnatius in vita ejus p. . lib de iside & osicide p. . edit . parif . lib. de agesilao , p. . lib . memo●ab . p. . de administrat . domest p. . lib. . hist. g●aecae p. . aquinas de regimine principum , c. . romani s●n●per justa movere arma , caeterae nationes odio , & malevo 〈…〉 quód imper●●m t●nt● vrbu justitiâ ageretur , sela in populam romanum apiebant . lilius giraldus syntag. deorum pag. . lib. . p. . edit . sylb. (a) e. . e . ● . . e. . c. h. . c. . e. . . & . p.m.c. (b) e. . c. . . h. . c. . e. . c. . h. . c. . (c) eli● . c. . (d) & e. . c. . r . c. . (e) i ac . seneca in comsol . ad polyb. p. . habet rex in manu sua omnia jura , quae ad coranam , & laicalem pertinen● potestatem , & materialem gladium , qui pertinet ad regni gubernaculum . flera , c. . lib. . p. . edit . seld. lib. . de benefic . inlioff . discurs . politic. p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . crispinus apud stobaeum , ser. . p. . nullius juris ratio , aut aequitatis bonignitatis patitur , ut quae sal●briter pro utilitate homi num introducuntur , ea nos duriore interpretatione contrà ipsorum commodum producamus ad soveritatem . modestinus , lib. . responsorum . king iames's speech at white-hall , . p. . of his works in fol. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. diotogenes pythagor . apud stobaum serm. . p. . lex scripta , quamvès dura , est servanda . gloss ad pauli verba lib. . ad edit . digest . lib. . tit . p. . king iames's speech at white hall , . p . of his works in sol . lib. de moribus c. . c. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , xenophon . lib. . de exped . cyri. libro unico , de instit. prine . in argum. p. . politic. fleta in proëmio libri edit . selden rex est 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . fornerius ad legem , . lib. de verb. signif . pag. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . diocogenes pythagor . apud stobaeum , serm. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . philippus rex apud herodotum , lib. . pythagor . lib. . c. . art. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. idem loco prec . tiraquel . in alex. ab alex. lib. . c. . calvin's case , rep. seneca , ep. . quam venerationem praeceptoribus meis deboo , candemillis praeceptoribus generis humani , à quibus tanti boni initia fluxerunt , si consulem video , aut praetorem quibus omnia bonor haberi solet faciam , equo desiliam , caput ad aperiam , semitâ cedam . quid ergo ? marcum caronem u●rumque , & laelium sapientem , & socratem cum zlatone , & lenone , cleanthem que in animum meum five dignatione summa recipiam ? ego verò illos veneror , & tantisi nom nibus semper assurgo . rep. calvin's case . rex ●unguam moritur reg. juris . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . adag . . chil. . cent. . habeatur personarum a● dignita●um proportio , & cism sit ubique virtutis modus , aequò yeccaet quod excedit , quàm quod deficit . seneca , de benef. c. . speech , . pag. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 philo , lib. de agricultura , paeg . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 justinus mart. epist. ad zenum , & siren. p. . edit . sylburg . see the most learned bishop of worcester's character of him , in his sermon , at our gracious sovereign's coronation , pag. , & . kings iii. lib. . de nobilirate . lib. . de philosoph . princip . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 aristor . precemio metaphys . in piman●o mercurii . lib. . com . . dialog . . c. . de vetitate , p. . in reg. iii. . bayns in c. . prov. inter crit. sact. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as gregory naz. orat. . in eccles . p. ● . eiconn basilie . pag. . art . . ver. . ver. . ver. , . ver. . ver. . ver. , . adag . . chil. . cent . pag. . e●a ▪ in . chrysippus libro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 citatus in digest . tom. . tit. . de legibus senaiúsque consultis , p. . orat. in ecc●es . p. . holingshed . pag. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . synes●us lib. de regno pag. . lib. de providentia , pag. , . glanvil in prolog . de jur. belli & pacis . l lib. . c. . tacitus de mo ●ib . germ. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , non bene imperat , nisi qui bene paeruerit imperio . aristor . lib. . politic. ideò imperialem fortunam relus humanis deus praeposuit , ut possit omnia , quae noviter contingunt , & emendare , & consponere , & modis & regulus competentibus trudere , & boc hon prinium à nobis dictum est , sed ab antiqua descendit prosapia . justinianus in diplom . de confirm . digestorum , pag. . tom. i. hopperus lib. de vera jurisprud . pag. . synesius , lib. de regno . pag. . in his sermon at the coronation of our now blessed and beloved king , pag. . jac. c. . plowd . com. . instit. c. . m. charta , p. . grocius , de jur. belli , & pacis , p. . lib. . stat. jac. c. . & . in oratione de agesilao , p. ● cie . in catal. . autor ad hetennium , lib. . opus est alique ad quem mores nostra seipsi exigant : wise ad regulam prava non corriges . aliquem habeat animus quod vereatur cujus auctoritate , etiam secretum suum sanctius faciat . seneca ep. . lib. . de vita mosis . p. . in resp. ad quest. . ad oithod . p. . edit sylburg . lib. . de vita mosis p. . lib. de vita mosis , p. . initio . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . philo libro de sacrificiis . abesis & caini , p. . com. in lib. . de legib. platon . p. . and moses had them all . gaulmyn in opere rabinico . de vita & motte mosis p. &c. joseph . a ●tiq . judatc . lib. . c. . lib. de vita mosis . p. . gaulmyn p. . de vita & morte mosis . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. philo lib. . de vita mosis p. . vt deus in rebus inferio refus procreandis non sua , sed nostra causa agit , ita & vicarius ejis princeps dominum suum imitatus , apud quen omnium actionum suorum rationem red . dere debet , non de se perticulatè , sed ▪ dè tota reipub. universè solicitus esse debet . hopperus , lib. de institut . principis . homil. . in hexameron . lib. . c. . sum. de ecclesia , lib. . de vita mosis , p. . lib. de cherubim . p. . lib. . p. . lege gaulmyn , lib. de vita & motte mosis . octavo . antiq. judaic . lib. . ● . . lege justinianum in confirmatione digestorum ante tom. . p. . et seq . tradunt judzi circa hunc locum , quâ ratione , modo , & ordine & in qua item membrane quo demque atramente liber legis sit describendus . fagius in loc. lorinus also reproaches the iews for this out of munster . statim inito regno sua manu legem describat prater illam quam privatus descripserat ut intelligat se ad observantiam legis obstrictiorem privatis esse . fagius in locum . describi carabit , v. . habebat . autem teste r. s duos libros legis unum qui repositus adservabatur in archivis , & alium quem secum portabat . drusius in loc. in c. . v. . posseuinus in apparatu sacro . p. ● . in speculo historiali , lib. . c. . quo genere obligatus es , hoc fidens exsolvè . senec , lib. . benef. vos ad speciem veri componite animum . & dum h●nestum dicitis quicquid est id quod nomine honesti ●actatur . id colite , idem codem loco . ex iis autem qui sant , eligamus non ces qui verba magna celeritate pracipitant , & communes locos volvunt , & in privato circulantur , sed ces qui vita decent , qui cum dixerint quid faciendum sit , probant faciendo . seneca . ep. . omnejus aut consensus fecit aut necessitas constituit aut firmavis consuetudo . modestinus , lib. . regul . totum autem jus consistit aut in acquirende , aut in conservando , aut in minuendo , ulpianus lib. . institut . iustus non e● nist qui constanter , & firme animi proposito quod justum est , agit . reg. jur. cum léx in prateritum quid indulget , in futurum vetat , ulpianus , lib. . ad edictum . in notis in philonis , lib. de officio judicis . minimé sunt mutanda qua interpretasionem certam semper habuarunt . paulus , lib. . ad plautium . lib. . c. . historiae sclavorum . a mundi origine & primordio nobiscum nata est , nunquam interitura . quam si sequerentur nostri jurisperiti ne rabulas dicam & legulejos potius non profecto intersecturas , & m●andros quotidiè & identidem de ●ondcremur . lilius gyrald . adu literas . corvinus , lib. . instit. tit. ● . gloss , in pandect lib. . tit. . e. quod natura , p. lib. . de juti . sprud . c. . p. ● . lib. de aristot. dogmat. eversione . c. p. . p. . in cohortat . ad graecos , p. . budzus in pandect , priores , p. . impress . basilez , . fornerius in legem . p. . de signific . verborum . view of the civil and eccles. law , p● . digest . lib. . tit. . de justitia &c jure , p. , . . florentinus lib. . inslit . lege an● not . loc . ut supr● . ¶ see k. iames's speech , an. star chamber , p. . of his works . alciatus brech . & forner ad legem . p. , . gajus . lib. . instit. c. . digest . lib. . tit. . p. . ulpian , lib . instit . c. . digest . lib. . tit. . de justitia & jure , p. fornerius de veriorum significad legam ● . p. , . lib. . epitom . alfini . . digest . lib. . tit . . ad exhibendum . budaeus in pandect , p. . edit basil , . posseuinus bibliothec. select . lib. . c. , &c. seq . nostrum autem consummationem quaea no. bis de● admuente componetur , digestorum , vel pandectarum ●omen babere sanctmus , nullis jurisperitis in posterum audentibus commentarios illi applicare , et verbo●itate sua supradicti codicis compendium confundere . imp. caesar iustinianus in concil● ante lib. pandectatum . p. . posseuinus biblothec select , lib. . c. . ulp. lib. . instit digest . lib. . tit. . p. . . lege imper. justin . diplom . de confirm . digest . p. , , , &c. ante tom. . pandect . de origine juris p. . doctor & stud. lib. . c. . p. . lib. . de legib. p. . math. paris , pag. , , . wals. in e. . scire leges , hoc non est verba corum tenere , sed vim ac potestatem . coelius , lib. . digestor . pag. . to the prince of wales . jacob. c. s. in epift. de justiniano , codice confirm . in panicrol . tit. . de armamentariis , p. . sapientiae noceri non potest , nulla delebit atas praesens , nulla diminuet sequens ac deinde semper ulterior aliquid ad veneratione● conferet , quoniam quidem in vicino versatur invidia . seneca , lib. de brevit vitae . p. . iac. c. . in the preamble . modestinus , lib. . regularum . seneca , ep. . in loc . grotius in deut. xvii . . lib. quod det. potiert insidi soleat . p. . lib. de sacrif . abelis & caini , p. . de differentia mosaici sacerdotis & evangel●i lege in orat. carlerii in concil . basil. concil . to. ● . p. . & orat. polemarii , p. . catholicus est ille qui credit implicité , vel explicatè actu , vel habitu omnia qu'ae pertinent ad fidem orthodoxam formatam vel informem . brulifer . dist. . . lib. . ¶ lib. . c. . instit . orator . n● putes ecclesiam , quae in petra est , in una parte esse terrarum , & non diffundi usque ad sines terr● , &c. s. augustin . lib. . contriter . petiliani , c . sic tract . . super joannem , homil. super apocalyps . de correct . donatist . c. . sanctus august , de correct . donatist , c. . extra hoc corpus neminem vivificat spiritus sanctus . romanae ecclesiae abundè satis est gloria partem esse parvam universalis ecclesiae . lib. de officio pii viri , p. , . quisquis ergo ab hac catholica ecclesia fuerit seperatus quantumlibet landabiliter se vivere existi●net , hoc solo scelere quod à christi unitate disjunctus est , non habebit vitam sed ira dei manet super ipsum . sanctus aug. ep. . post collat contr . donatist . nomen caholicum fuit inventum , ut ea discriminutione nominis ab haretico cum conventiculis cognosceretur esse distincta . baronius , to . ad am. . tim. ii . . lib. . contra cresconium , c. ● in locum . budaeus in pandect . priores , pag. . edit . basil. cl● . pro balbo . in penul . lib. de abus . saculi de natur. deorum syntagm , . p. . plinius in ep. caninio rufo , ep. . philo. lib. . de creati principis , p. . rom vii . . rom. vii . . in pentateuch . in argumento an●e deuteronom . lorinus in pr●fat ante deuteron . ● beda in loc . lib. de nominum mutatione . p. . de donis spir. sancti . c. . lib. de abrehamo , p . beatus es , si cortuum triplici isto timore repleveris . ut timeas quidem pro accepta gratiae amplius pro amissa longè plus pro recuperata . sanctus bernardus serm. . super cantie . cantie . lib. de migrat . abraham ● . p. . in solutionibus questionum ●i la●i . q. . ● epist. ad hilar . lib. ● . de vita mosis , p. . in prima quinquagena ex prol●g● , psal. . ep. . lib. quis rerum divinarum . haret . p. . justinus martyr in apol. . pr● christian. philo , lib. de confusione linguarum , p. . lib. de monatchia , p. . con●zen . politic . lib. . c. . p. . timor filialis oritur à duplici radice ; . a cognitione divinae magnitudinis , & a dilectione dei aragonius in s. secundae , diui thomae . . art. . de timore , p. . timor dei est metus reverentiae , & cultus , a lapide in ecclus. xxiv . . p. . serm. . inter paervos sermones ▪ timor servilis quantùm ad●servitutem est malus , tamen quantùm ad substantiam est bonus . aragonius in secundam . secundae tho. . art. . de timore , p. . d'avila , p . greg. naz. orat. . on eccles. p. . expresses it . a lapide in loc . caten . graec. patrum , p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . isidor in job xxviii gregorius theolog . apud caten . graecorum patrum in job xx . p. . jer. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , greg. naz. orat. . ep. . ingrata patria non habebis essa mea . dictum scipionis . lib. de abrahamo , p. . lib. de orator . ●● . de oratore . ep. . lib. . c. . herc. fu● . projectus & degener vultus . tac. lib. . lib. . de clementia , p. . ● . . pettitus in leges , atic. lib. , tit. ● . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . trismegist . in pimand . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in min●e , p. . * sanctus thom. summ. prima , secunda , q. , prima secunda , q. . art . . detrahunt leges aliquando à jure naturali , & addunt juri natural● ; nec obstat , quod ipsum jus naturale est immutabile & verum , qui● illud verum in suo genere , in certis autom capitulis mutatur , & mutetur , quoad observantiam ipsam , tamen semper bonum , & equum est , gloss. in digest . lib. . tit. . de jure & justitia , p. . dr. & stud. c. . lib. quod deus fit immutabilis , pag. . lib. de abrahamo , p. . livius , lib. . lib. secundo de vita mosis , p. . lib. . de legib. cic lib. . de legibus . m. antoninus , lib. . c. . lib. de mundo , c. . plutarchus , de homero . plato in minoe , p. . politic. p. . ficin . com. in . de legib. p. . lib. . de legib . p. . aenead . . lib. . com. in lib. . aenead . . p. . reip. gerendae . praecepta p. . lib. ad . princ. indoctum , p. . porphyrius in vita pythagorae . edit . holstenii . lib. de bon. hom . libert . diodor. sicul. lib. . c. . plutarchus in solone . lib. . c. . ep. . illustres conditores legum , inventionem legum in deum , sed per diversa nomina atque media retulerunt , lege annumerationem legislatorum apud ficmum in argum. ante minoe , platon . p , . lege s pettit . de legibus atticis , edit . paris . . lib. . excusationum . c . digest . lib. . tit. p. . de consti● . primus . lib. de joseph , p. . budaeus in pand. priores , p. . iura constitui oportte in iis quae 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 accidunt , non in iis quae 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , id est , iis quae plerúmque accidunt , non in iis quae nec opinatò , vel praeter hominum opinionem . lib. . p. . edit . sylb. porphyrius , de abstin . lib. . p. . linschotten , in his voyages to the india's , c. . plut. lib. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , p. . de his quiserè à numine puniuntur , p. . syntagmat . de diis . p. . cic. lib. . de leg. tertio de legibus . plato . de legib . p. . 〈◊〉 . de jure belli , & 〈◊〉 p. . lib. . in epistol . thom. lupseto inter opuscula . tho. mori cancel . angl. impress lovaniae , . ulpianus , lib. . instit. digest . de justitia , & jure , tit. . p. . author incertus , de vita pythag. apud photium , bibl. co . . lib. . de moribus , cap. . jur. belli & pacis , p. . lib. . instit. tit . . p. . corvinus in erotematibus imperial . p. . lib. de gloria . in lib. . iliad hometi . impress . . majoranus in proemio eustathii impress . romae . . lib. hestor . budaeus in pandect . priores , pag. . edit . basil. vossius , lib. de scriptor lat. mystagog . lib. . sect . . ad sinem . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plato in politic. p. . lib. . genial . c. ● . lib. . de repub. lib. . stromat . stobaeus , serm. . lib. . repub. p. . pag. . vol. . plato politic. p. . plutarchus in quaest romanis , p. . in pandect . p. . edit . basil. . syntag. . de diis , p. . hopperus , de vera . jurisprud . lib. . tit . . budaeus in pandect . p. . edit . basil , . naudaeus in proemio , de studio militari . gloss. p. . ● inst. m. paris . in guliel . secundo . instit. p. . on stat. westm. . and p. . syntagm . deorum . p. . oratione . contra aristogitonem . plutarch . in laconicis apothegmat . in prolog . ante lib. legum . angl. pleas crown , part . p. . lib. de correctione donatistarum , c. . ad bonifac. dr. f●rn . serm. . de verbis dom secund . matthaeum . philo. lib. . legis allegor , p. . lib. de agricultura , p. . lib. quod det potior insidias . sol. p. . seneca . ep. . haec exemplaria rerum omnium deus intra se habet , numerósque universorum quae agenda sunt , & modos mente complexus est ; ●plenus his figuris est quas plato ideas appellat immortales , immutabiles , indefatigabiles . de republ. lib. . c. . king james in his speech , . in pandect . fo . . edit . basil , . plutarchus , lib. de solertia animalium . p. ● . sir edw. cook , part instit. pleas crown , p. . quae cùm se disposuit & partibus suis consensit , & ut ita dicam continuit , summum , bonum ●eligit nihil enim pravi , nihil lubrici superest , nihil , in quo arietet , aut labet , omnia fa●iet ex imperio suo , uthilque inopinatum accidet , sed quicquid agit , in bonum exibit facile , & paratè & sine tergiveratione agentis . senec. lib. de vita beata , p. . natur. quaest. lib. . p. ● . s●e●onius in claudio , c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , theolog. apud stobaeum , serm. . p. . de natur. deorum . cic. post r●di●um . ep. . senec. ep. ● . plut. lib. de pythiae oraculis , p. . lib. . benef. p. . metaphysic . l●● . . c. . lib. . de motibus . c. ● . ep. ● . lysis . p. . in sophista . p. . in theaetet . p. . argum. in repub . lib. . p. . aenead . . lib. . p. , . lib. de profectu virtut p. . lib. de socrat. genio , p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . philostr . in vita apollonii , c. . p. . topic. lib. . c. . p. . de oratore . budzus in pan. dect . priores . p. . rhetotic . lib. . c. . lib. . d● mo●ib . c. . lib. . de morib . c. . genial . lib. . c. . cum notis tiraequelli . lib. de congres . q●et . erudit gratia , p. . lib. de his verbis resipuit noe , p. . seneca , de beata vita . p. . epist. . senec. ep. . in epictet . lib. . c. . philosophi , patriarcha haereticorum , e●● clesia puritatem perversa maculavere doctrinâ sanctus hieronim . ad cresiphontem adu . pelagianos . cic. acad. c. tuscul. de nat. deo . rum . senec. lib. de beata vita , p. . de vita pythagorae , p. , . holstein interp. dionis hist. lib. . cicero exal . p. . in fasciculo rerum expetendarum & fugiendarum , so . . draudius bibliothec . class . p. , , , , , , . epist. ● notis in loc●● . est autem secta disciplinae certa quaedam disciplinae formula , factio , studium , ratio vitae . cic. de orator . secta & ratio vita . cic pro caelio . laertius , p. . edit . colon. . laertius in epicuro , p. . edit . colon. . gassendus aethicae , lib. . de faelic . in proemio . de morib . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 metaphys . c. . p. . metaphys . c. . p. . virtus propriè dicta est habitus constituens potentiam in ubtimo gradu perfectionis suo actui debitus , arragonius in sanctum thom. artic . ● . de virtute sidei explic. text. p. . in lib. de migratione abrahami , p. . in pandect . priores . p. . edis . basil. lib. . de constantino . jur. belli , & pacis , lib. . c . p. . brechaeus ad legem . . lib. de verborum significatione , p. . lib. . p. . budaeus in pand. p. . edit . basil. eustathius in iliad . lipsius in notis ad secundum , politic . tom. . oper. so . . lib. . de vera jurisprud . tit . . regula est plurium rerum compendiosa narratione facta traditio . gloss. in tit. . digest . de legibus sena●usque consultis , p. . lib. . de legib. in c. lib. . sancti augustini . de civit dei. papinianus , lib. . definit . c. . digest . lib. . tit . . p. . lib. . de benefic . c. . ep. . lib. . de tectorio opere . ep. . pro muraena , . lib. . de finib . . lib de vera jurisprud . tit . . sanctus thom. prima secunda , . art . . o. lessius de iustit , & jure . lib. . de morib . c. & . lib. . de factis , & dictis socratis . serm. . p. , . lib. . de republ . stobaeus , p. . aug. lib. . de civit dei. budaeus , in pandect . p. . edit . basil. methodius . lib. . com. juris civilis , c. . dion . cals . hist. lib. . p. . partis primae , p. . eurypid . in alemaeo , in stobaeus , p. , . stobaeus , serm. . corda in vita virgilii . in panegyr . dion . cass. hist. lib. . p. . edit . leunclavii . bibliothec. lib. . justin. lib. . sanctus august . lib. . de civit dei alciat . lib. de verborum signif . p. . ad legem . lib. de justit . principis . mopperus , lib. de instit. principis . lib. . de morib . c. . lib. . reipub. c. . alciat . ad leg . . lib. de verbor . signific p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 stobaeus , serm. . p. . injuria semper injusta est . laedi etiam aliques justè potest . nam & qui jure damnantur , laduntur , sed non injuriâ . asconius praedianus , apud philoxenum . lib. de serm. latino , p. . quod sol mundo est & sanitas corpori , hoc animo & reipubl . est iustitia . nam res ad vitam necessarias non ideo quaerimus ut simus , hoc enim brutorum est , sed ut benè simus , quod est justitia , & bellum cum hostibus gerimus , non ut vincamus , aliósque servitute opprimamus , nam hoc tyranni faciunt , sed ut in pace beati vivamus , quod à justitia prostuit . hoppe●rus . de instit. principis . stobaeus , serm. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sophocles apud stobaeum , p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dictum sotadis apud stob. p. . in pandect . fo . . basil edit . . qui quidam ordo cum invertitur , & major opum armorúmque , potentiae , quam religionis , & justitia ratio habetur , fit , ut res illae primum fastu & luxu civium corrumpant deinde autem ipsaemet aufugiant , & pro libertate ac opulentiâ , extremam servitutem , & paupertatem relinquunt . hopperus , lib. de instit principis . praefatione in lib. senec. de provident . p. . durand . dist. . q. . lib. . dist. . q. . p. . bradward . lib. . c. . de causa dei. bonaventur ▪ lib. dist. . distinct. . qu . lib. . p. mirandul . in hexap . c. . p. . dist. . q. . lib. . p. non te oxistixnes donum dei jure hareditario possidere , ità videlicet securus de eo quasi nunquam perdere possis , nè subito cum fortè retraxerit manum , & substraxerit donum , tu animo concidas & tristior quâm opportet , fias . sanctus bernard . serm. , in cant. cantic . lib. . de natur. deorum . offic. . non dat natura virtutem , ars est bonum sieri . deerat illis justitia , deerat prudentia , deerat temperantiae ac fortitudo , omnibus his virtutibus babebat similiae quaedam rudis vita , virtus non contingit animo nisi instituto & edocto , & ad summum assiduà exercitatione perdacto senec. ep. . bradward ; de causa dei , lib. c. . p. . beda , cap. . contra julianum . malè velle , malè facere , malè dicere , malè cogitare de quoquam ex aquo vetamur . tertullianus apolog. c. . bradward , lib. . c. . p. . epist. . ad paulinum . st. augustin . ep. . epist. . lib. homil. homil. . the authour's prayer to god. the authour's ejaculation . quieunque est victoriâ dignus , non est ex se dignus sed ex dei gratuita voluntate , quae & dignum victoriâ efficit , & victorem . bradward , lib. . c. . ad finem , p. . andr. . . pro quinto . pro scylla . theatrum chymicum . p. . scriptorib . lic . p. . lib. de exulio , p. . edit . paris . psal. . leges magistratus & judicia quaedam quasi sunt numina divinitùs constituta in republ hopperus , lib. unico , de justitia principis . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . dion . cass. lib. . p. . lib. . de clement . p. . c. . lib. . de clem. c. . postea . adeò sui dissimilis evasit , ut monstrum non homo dici mereatur . sueton. de nerone . c. . eicon basih p. . lib. de temulentia , p ● p. . pagninus in verbo . rarò eminentes viri , non magnis adjutoribus ad gubernandum fortunam suam usi sunt , ut duo scipiones , duob●s laeliis quos per omniae aequaverunt sibi , ut divus augustus , m. agrippa & maximè ab illo statilio tauro , quibus novitas familiae hàud obstitit , quò minùs ad maltiplices consulatus , triumphósque , & complura niterentur sacerdotia . patercul . lib. . titus . lib. . sect. . edit gatakeri . lib. . sect. . p . in lib. . c. . p. . commentar . epist. . esay xlv . . lib. . sect. . p. . hist. nat. l . c. . king iames to prince henry . lib. . basilic . doron , sonnet before the first book . phil. . . mark . . tim. . . cor. . . mal. . . tim. . . jam. . ● . pet. . . phil . . jam . . adag . chil. ● . cent. . adag . , . p. . jer. . . gal. . . ephes. . , . ephes. . , . luke . deut. . . heb. . pet. . . eicon . basilic . ● . p. . basilicon . doron , book . p. ● . fol. pag. . book . lib. . sect. . p. . gatakeri annotat . n lib. . sect . . p. . quod in caesaribus rarum comperies perpetuo sa●●s . erasm. in epist. ad suetonium de augusto . malos principes faciunt nimia licentia , rerum copta , amici improbi , satellites detestandi . vopiscus in aureliano . vulcatus gallic . in avidio cassio , p. . rom. scriptorum . (b) lampridius in severo , p. . (c) capitolinus in severo , p. . (d) idem , p. . (e) trebellius pollio , p. . (f) flav. vopisc . p. . (g) idem , p. . ul●ichus huttenus ad leonem x pontif. in praefat . ante vallam . ulrichus huttenus de leone x. papa , in praef. ante vallam . isocrates , ep. . xenophon . paedag . lib. . dyonis . halicarnass . lib. . herodot . lib. . anton. collect. lib. . c . sidonius , lib. . ep. . ep. . lib. . de abstinentia , p. . lib. de abraham , p. . lib. . legis allegoria●um , p. . in the case of the postnati . lib. . de vera jurisprud . tit . . budaeus in pa●dect p. . edit . . so● . parte primâ , de excellentia hominis , c. . p. . in cebetis tabula , p. . quod sensus percipit , imaginatio representat , cogitatio format , ingenium investigat : ratio judicat , memoria servat , intelligentia approhendit , contemplationèmque adducit , scientia est . parte primâ c. . p. . lib. . c. . . de vita & scripti● . porphyrii , c. . aenead . . lib. . p. . amor cum ex pulchro ama●● quasi ex patre & ex pulchri cognitione unà cum ejus absentia in amante conspecta quasi ex matre ducat originem . phàvorinus , lib. de excel . hom . parte prima , c. . p. . lib. . p. . . d● divinitat . lib. . denat . deorum . cic. attico . lib. . . vossius hist. graec. lib. . p. . cel. rhodig . . antiq c. . dugardus in sappl . ad vigers idiotism . graec. livy impress . hom . . p. . king. . . king. . . math. . deuita pythagorae p. . incertus author de vita pythagorae e photio . p. . lib. . instit. orator . p. . in vita aristot. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lacitius in uita edit . causabon . lib. de virtute & fort . alexandri . in trismegist pymand . lib. . c. . p. . historia natur. lib. . c. . & lib. . c. . academ . in orat. . de oratore . lib. de brevitate vitae . lib. . c. . de historicis graecis . in epist. ant● opera . in epist. brulat●o cancellatio gal. in pandect . priores . edit . basil. p. . in apologia , p. . vossins c●ntra des chartem in censura novae philosophiae . sueton in nerone . rigordus in vita philippi august ad annum . campanella . nè quis eos de catero scribere aut leg●re praesumerst . vel 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raro simul hominibus & bona fortuna & bona mens datur . liv. lib. . georg. adag . cent. . chil. . . de oratore . cic. . de nat. deorum . in asin. . pro c●cinna . lib. de verborum signific . p. . adag . . i hil . cent. . . philip. tullius . . offic. aristot. lib. de. mundo prasat . ad alexand. lib. de vita contemplativa , pag. . cum sapientes propriè vocemus eos qui sublimia quadam , & a vulgi captu remota intelligunt , quomodo anaxagoram , thalotem , democritum , sapientes nominavit antiquitas , certè qui adeae per quirenda o● ▪ studio incumbunt , quae qui tenent , sapientes habentur , ii propriè dicendi sunt philosophari , muretus , innotis ad primum natur. quest. senecae . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lib. de mundi opificio , p. . aenead . . lib. . p. . parte prima , de excel . homi. c. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. de specialibus legibus , pag. . julius capitolinus in antonino . p. . edit . sylb. epist. . in notis ad senec. ludum . p. . epictetus apud a. gellium . lib. . c. . lib. . de ira. . anead . . lib. . p. . in prologo art . . p. . in sententias . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lib. de agricult . p. . aristot. auscult ' lib. . c. . p. volum . primo . phavorinus . part● prima , cap. . p. . vives in censura operum aristotelis , tit . metaphisic . basil. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . metaphys . lib. . c. . ad initium . in pandect . priores , p. . contacuzenus hist. lib. . c. . lib. de ho●inum mutatione . p. . caelius calcagninus nepoti suo . quaestionum , lib. . fictus amor oculorum nitet in lumine , sapit in ore , mulc●t in aure , ridet in facie , placet in cute , intus autem est venenum sardinium quod nimirum quos peremit , risu perire facit , cyrillus lib. . apolog. moralis . c. . in apolog. per platone . adag . . cent. chil. . cent. . chil. . p. in collectaneis dictionum rhetoric . deridere atque contemnere , lib. . de oratore cic. . de oratore . in legem . ad legem juliam & papiam p. . lib. de verborum signifis . itaque quum si docti , à peritis facilè desistunt sententia . offic. . pro fronteio . de clar. oratoribus . quintil●●● . c. ● . virgil. . eclog. . offic. . varro . de r● rustica . c. . lib. . p. . b. & lib. . p. . . instit. lib. . fe●●simple . p. . reg. i●ris . lib. . sect . . cap. quod non absolvitur . . instit. on littl. p. . digest . lib. . tit. . de ritu nuptiarum . p. . virgil. lib. . georg. . phil. & lib. . de oratore . advers . lib. . c. . parte primá de excell . hom. c. . p. . ep. . ep. ad heliodor . in reliquis pandectis p. . masius in josh xxii . . offic. . lib. . . quod decat , honestum est , & quod honestum est . decet . cic. . offic. plaut . deos decet opulentia . decet me haec vestis , plaut . decet me his verbis fabulari , plaut . exemplis grandioribus decuit ●li , cic. . divinat . decentia , convenientia quadam & pulcbritudo cic. . nat. deod . gen. xviii . . gen xxxix . . nehem. vi . ii . baffus noster videbatur mihi prosequi se , & componere , & vivere lanquam superstes sibi & fortiter serre decidium sui senee . epist. . non est viri timere sudorem , huc & illuc accedat , ut perfecta virtus sit , aqualitas ac . tenor nor vitae per ●mnia consonans sibi , quód non potest esse , nisi rerum scientia contingat , & ars , per quam divina & humana noscuntur . seneca ep. . nimirum existimo praserendum non in virture trajanum , non antoninum in clementia , non in gravitate nervam , non in gubernando arario vespasianum , &c. trebellius follio in victorino . trov . xxxi . c. true law of freè monarchies , p. . of his works . pag. . livius i. aburts . plautus in milite virgil . aeneid . . . a●neid . . aeneid . prolege manilia . iurare vehementius & gravius . and. . . ii. philip. . lorinus in . actorum . v. . baron . annal. to. . p. . ad . annum christi , ● . gualtperius . in. . actorum , v. . de oratore . ea debent in historia poni ab historiographis . qua aut sugienda sint aut sequenda julius capitolin . in gordian . tr. p. . edit . sylb. cic. lib. , offic . de nat. deorum . vide heresbachium , lib. de educandis principum liberis . o praeclara informatio doctrina rum munere cale sti indulta felicibus quae vel vittosas naruras sape excolusti . ammianus marcellinus , lib. p. . in valentiliano & valente . hist. bell . civil . lib. . in juliano tunde quantum vales , anaxarchum non ranges , tunde quantum voles , opinionem non mutabis ; nihil anaxarchus bonum esse credidit , quod animi non esset , nihil malum quod ad animum non pertineret . heinsius in orat. de stoica philosophia annexa senec. p. . ad●sine●● lib. de amicitia . . in dialog . de oratore . epitome dionis in commodo . . p. . edit . sylburg . orthographia per totum librum . in lib. . enead . . p. . art . . namsi is possit ab ca sese derepente avellere qui cum tot consuescit annos , non ●um horninem ducerem . ancyr . . scholastici . pag. . lib. . c. . lib. . pop. rom valer. max. lib. . c. lib. de beata vita p. . lib. de tranquil . p. . lib. de providentia , p. f. in sententiis holstenio interprete , p. . gal. ii . . . cor. ix . last v. phil. iii. . philostratus in vita ejus . lib. c. . p. . plinius hist. nat. in athanasii persecutiones universum conjuratum orbem , & commotos fuisse principes terrae ; gentesetiam , regua , exercitus coiisse adversus eum , russinu● ; lib. . c. . . inter dicta phythagorae , apud porphyrium in vita ejus , pag. . injustitia in anima , est ig●●bilium partium à naturali lege dissidium . tapia , lib. . p. . de triplici bono & verâ hominis nobilitate . grot. in locum . phil. . psal. . cant. . . brompton in chronicis , pag. , , edit . londini . legum ministri magistratus , legum interpretes judices , legum idcirco omnes servi sumus , ut liberi esse possumus . cic. pro cluenti . edit . edw. whitchurch . quomodo justitiae vindex erit , qui expoliat alios ? quomodo suam amabit remp. qui de thesauris cogendis , dies , noctésque cogitat ? quomodo rebus agendis advertet animum , quilucro totus inhiat ? nihil rectè geritur quod rei privatae studio geritur , nullum facinus generosum suscipitur absque famae existimatione . hanc verò in pracio non habet animus vilis , abj●ctúsque avaritiae deditus . savedra in symbolis politicis . lib. . de justitia . p. . rom. i. . l●ge p. mirandul . in c. . heptapli p. . in locu● . psal. ● . . matth. xxi . . prafat . in lib. solomonis . eu●eb . lib. . c. . magdeburg . cent. . c. . p. . secundae lectionis vel ordinis , bellarminus de verbo dei c. . king james to all christian monarchs p. . oper . lib. . de ciuitate dei , c. . in catalog . haeres . in. c. . & . regum . reddidit causam , quare in ea peccata de quibus suprà dixit , inciderint aegyptii & cànanaei , ac illorum occ●sione incipit in genere tractare de idolorum superstitione quae triplex erat ; quaedam enim animalia viva cole●ant pro diis ; alia ●reaturas ut elementa , & corpora caelestia ; alia verò etiam imagines verarum rerum . jansenius annotat. in loc. spotswoods history church scotland . p. . petr. crinit . de honesta discipl . lib. . c. . dionyssus halliearnass . lib. . herodor . lib. . a prima adolescentia observandis sideribus deditus gassendus , tom. . in praefat . ad vitam tichon . brahe . zuniger . theatrum vitae huma●ae , vol. . lib. . p. , . heresbachius de instit. principum liberis . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , laertiu● in vita ejus . picus mirandul . lib. . c. . in praemio de ente & bono ad angel. politianum . p. . in nerone . c. . bochartus praefat . in lib. de coloniis cuspinian , in vita ejus . alexand. ab alexand . l. . c. . pag. . of his works . pag. . in hypodeigm . neustriae . p. . plutarch in p. aemilio . tolet. l . c. . liv. de● . . li● . . plutarchus in vita ejus . per intempestivam libertatem & su perbam scultitiam ar●ian●s lib. . de gestis alexand. venenum perimentis sub pallio consulentis . garimbertus . in epist. de theodorico . gladiatori quàm s●natori propior , vel patercul . l. . d avila p. . p. . il perd● souuent d' auoir , trop bien serui . eras. adaq . chil. . cent. . p. . in immenso aliarum super alias acervatarum legum cumulo , sons omnis publici privatique juris , livius , de x. tabulis . q. . instit. p. . lib . natur. a●scult . tract . . c. . p. . c. , tract . d● cognit . primorum principiorum . glassend . physic. sect . . lib. . de materiali rerum princip●o , c. . lib . de causis rerum , c. . vol. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lib. . de partu animal . c. . metaphys . c. . de causis analytic . lib. . tract . . c. . gassendus lib. ● de causa efficiente rerum , c. . c. . c. . metaphys . lib. . c. . lib. . c. . causae habent inter se ordine● , quia finis est ratio● agentis , sanctus thom. primae part● , q. ● a●t . ● . vox el●menti fuerit primili●s attributa igni , aeri , aqua , terra , hoc est , quatuor corporibus . gassend●s li● . . de materiali principio . c. . to. . p . q●ippe author naturae , legibus naturae non adstringitur , ac infinita pollet vi , quâ distan●iam illam quasi infinita saperet , qua interjacet inter aliquid & nihil . idem . lib. . de caelo , c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. lib. . metap . c. . metaphys . lib. . c. . litera elementi figura , elementum lit●ra vis & potestas propriè . priscianus , lib. . de litera . non nim inquit ex una re sicut thales ex humore sed ex suis prori●s principiis quasque res nasci putavi● , qua rerum principia singularum eredidit esse infinita , sanctus augustinus de anaximandio . apud gassend . physi● sect . . lib. . tom. . p. . suidas in verbo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lib. . c. . . cicero . de orato . instit. c. . lib. . sect . . doctor & student , p. ● . b. prima illa de● . ac naturae data sive seonna in annis nostris insita , unde quicquid 〈◊〉 orbe juris est . ac legum , en ascitur lib. . tit. . de vera jurispro lib. . tit. . vide tractatum durandi episc. meldonsis de legibus circà initium . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lib. de mor●● . c. . suida● in v●l● 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . instit. p. . . instit. p. . lib. . c. ● . lib. . digest . digest . lib. . tit. . . p. . digest . lib. . tit. . gloss. margent . p. . digest . lib. . tit. . de legibus , senatúque consultis . p. . instit. p. . p. . consuetudo licèt magna sit authoritatis , uunquam tamen praejudicat veritati , reg. juris . ed. . c. . cambden in gloucester shire p. . titles honour p. , . lib. . fol. . doctor and student c. . see the . stat. of eliz. c. . instit. p. . notes on chap. . of parliaments . cook jurisdict . parliamenti . p. . . see the preamble to the stat. h. . c. . ann. dom. . edit . basil. mores certè & instituta nostra , júsque ●mnino morib●s nostris introductam receptúmque , quas consuetudines dicimus . budaeus in pandect . priores , p. . iustit . p. . plowd . com. p. . b. doctor & stud. c. ● . suidas in ●erbo . regula est plurium rerumcompendiosa narratione facta traditio . marcianus lib. . instit. tit . doct. & stud. ●● . deipnos . lib. . p. . tit. de legatis . , lib. si ●à ss . . doctor harvy . mr. boyle and others , most worthy honour . fides , spes , & charitas sunt virtutes theologicae , propriè in mente sita , sicut in intelligontia fides sit , in memoria spe● , in voluntate charitas , hopperus lib. . de vera iurisprud . tit. ● p. . quid non invenit fides ? attingit in accessa , deprehendit ignota , comprehendit immensa , apprehendit novissima , ipsam denigue aeter●itatem vastissi . mo suo sinu quodammodo circumcludit . sanctus bern ard . sermone . in cantie . pr●cepta qu● deus per scipsu●●● , mandata qua per alios mandavit . aquin . prima secunda quaest. . art . . conslus . tom. . p. , , . , . bellarminus lib. de sacramentis . fides sine ope charitatis non justisi cat . bellarminus lib. . de iustific : c. . the author's application to himself . fides gignitur & nutritur per scientiam extrinsecè tantum persua dendo . sanctus thom. . part . art . q. . suidas in verté tantum tanquam mysterium tenere aliquid . . de orator . ad attic. lib. . . in alexand. sever. p. . lib. . p. . & . . in symbol , pythagoric p. . titulo silentium , & p. . histor. deorum syntag. . civitas est ecclesia , vigilate ad custodiam ; sponsa est , studete ornatus ; over sunt , intetidite quastus . serm. . in cantic . . se●m . . (a) lib. . cap. . sum. eccles. (b) in psal . qu. . disput. . p. . (c) tract . perri de palude , de causa immediata eccles. potestatis . durandus epise . meldensis , lib. de orig. jurisdiction●m , art . . de potest episcoporum . tom. . annal. p. , , , . sanctus cyprianus apud baronium . to. . annal. p. . eruditio & scientia pontificis in ecclesia evangelica , tanta esse debet , ut & gressus ejus & motus , & manus , item digiti , & universae partes corporis vocales sint ita , ut veritatem mente concipiens , & t●to eam habitu resonet & ornatu , benzonius in psal. . quest . . p. . hoc autem 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , veteres explicârunt 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 laxiore notione . grot. in mar. iv . . rom. . . john . . luke . . phil. . . jam. . . in mat. . . in lo●● 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sine ●arum apertiore explic●tione , grot. in lo● . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . suidas in verbo . de parabolis l●g● hieronimum de la rua tole tanum c●n●rovers . non● de psalmis , & sensib●● s. scriptura , p . imp. ma●riti , anno. . suetonius in tibet . c. . (a) erotemata impr. paris . calcondylas . . (b) de ecto partibus orationis . (c) introductiones grammaticae . basil , . (d) institutiones graecae linquae , basil , imp. per sebastianum henric . petri. (e) instit. gram. edit wolmarii basileae . ars caeterarum omnium veluti fons & origo , cujus fundamentum nisi quis fideliter jecerit , quicquid superstruxerit , corruet , lib. . c. . instit. (a) praefat. epist. ad grammat . suidas in verbo . necessariae pueris , jucundae senibus , dulcis secretorum comes , & quae v●lsola , omnium studiorum genere plus habet artis quàm ostentationis , fab. lib. . c. . institut . orator . lib. . c. instit. orator . antiqui novique orthographica impr. tornaci , anno. . victorinus afer . lib. de orthographia . veram orthographiae consuet udini seruit , idcó que s●pe mutata est , lib. . c. . &c. sylburg . rudiment . graec. ling. p. . & seq . * pag. , , , . &c. lips. de recta pronunciatione ling. lat. ad finem vol. oper. orthographiam , id est , formulam , rationémque seribendi à grammaticis institutam non adeò ●ustodiit , ac videtur sequi potiùs opinionem , qui perinde scribendum ac loquendum existiment . suetonius in octav. c. ● . (a) . academ . . lib. . c. . aut enim etymologia est , aut allusio , aut allegoria , aut caetera hujusmodi . brechaeus ad legem . lib. de verb sig . p. . alciat . ad legem . . p. ● . continet in se multam eruditionem , sive illa ex graecis orta tractamus sive ex historiarum veterum notitia , nomin●m , locorum , homin●m , gentium , urbium requiramus , lib . de orat. c. . grantus in gr. ling. spiceleg . p. ● . ● . lilius in gram. prosodia e●● quae rectam vocum pronunciationem tradit , idem . selden notes on fortescue , p. . k james speech whitehall , . p. . of his works in folio . ipse jus dixit assiduè ; & dixit autem jus non modo summa diligentia , sed & lenitate sueton. de octaviano aug c. . cook . instit. on c. . w●stmin . p. . . de morib . . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , rhetor. l. . c. . grot. in loc . viri fortes sunt divites quibus non est necesse , ut adulentur , & accipiant personas . r. selo . apud munster , iu loc . in pandect . priores , p. . edit . basil. tiraquel ad lib. . genial . dic●um . c. . p. , speech in parliament . . fol. . of his works . lib. . lib. . polymn . drusius in loc . hall & fox , in h. . ad annum , . chap. . , qui non sequuntur mundi disederia , nec divitiarum amorem , aut dignitatem ; atodio habeant , abominentarque opum congregationem nisi quatenus ad vitam sunt opera pratiam . pagninus in ver●o . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . menand . preface to the . rep. caveat sibi , nè in sede judicandi , quae est quasi thronus dei , q●enquam loco suo substituat insipientem , & indoctum , contemptibilem , vel severum , nè pro luse ponat tenebras , & manu indoctâ modo furioso , gladio feriat innocentes , &c. fleta c. . de iustitiariis substituendis . (a) sir ed. cook preface to the . rep. cum vix possint omnes casus , qui quandoque inciderint , certâ lege , edicto , senatus consulto comprehendi , prudens judex n●gotium , quo de agetur , ex simili aequitatis regula de finiet . fornerius ad legem . p. . de verbor . signif . speech star-chamber , . p. . ascon . pedianus , l●b . de divinat . ●re●haeus ●d l● gem . p. . de verb. signif . brech●eus ad leg●● . p. . de verb. fig. digest lib. . t it . de postulando in gloss. d. p. . cum igitur non sit possibile , quòd sulus [ rex ] ad omnia terminanda sufficeret per iustitiarios , & comites , & alios ministros viros sapientes , deúmque timentes &c. de necessitate oportebit cum his subveniri . fleta lib. . cap. . t 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , athenaeus . seldens titles honor , p. . m. paris , p. , , . hypodigm neustriae , p. . preface to the . rep. lib. e. . fol. ● seldens titles , honour . p. . preface . report . quid aliud est iuruconsulis domas , nisi ora●ul●m c●vitatis . ci● . prefa●ce to the . rep. populo ad actiones suas pronunciandas , & defendendas usque ad sententiae examen pro honorario suo deservituri , specul . iustitiariorum . mirrour des justices cap. . sect . des counters . lib. . c. . p. . edit . seld. rot. parl. h. instit. p. . in stat. . west . apprentisis . a dupondio nummo quasi duorum assibùs aftimaerentur : alciat . lib. . de verborum signific . p. . in proemio digest . p. . gloss. d. ut legum enigmata possunt subtiliter & acutè dissolvere . alciat . loco pracitato . stat . h. . c. . ed. . fol. . kitchin. finch . de atturnatis , & apprentisiis , dominas rex injunxit , &c. e. . rot . . dors. fleta lib. . c. . notes on this . chap. o f fortescue , p. . spelm. gloss in verbo apprentisii hospitium i● quo apprentisis legis habitare solebant . e. . . par. claus. in dors. n. . regni h. . hinc parliamentum illud la●coram . & indoctorum qu● & jugu . lum ecclesiae utrocius petehae . tur . spelinan in verlo . see sta● h. . c. ● . rastal at large . aeucid . . terent. adel. lib. . offic. . selden on cap. . art . . p. . mirrour cited by sir ed. cook instir on the stat. quo warranto , p. . in monitis & exemplis politicis , c. . p. . qu. t. cessat potestas minoris , in praesentia majoris . reg. juris . e. . juramentum iustitiar . l eum quem . ss . . ff . de judice . novel . . c. . bocerus , de bello , c . . speech , star-chamber , . p. . of his works in fol. sir edw. cook on the stat. de iudaisme , . instit p. . lib. . de monitis & exempl . politicis , p. . eicon . basil. c. . p. . in urbibus , aut noviter structis , aut bello acquisitis , effecit ut essent judices . qui de causis civilibus , & capitalibus non exceptis cognoscerent . grot. in chronic. cap. xix . v. . in judicando estis vicarii judicis summi , sio & rex in regnando ; & à deo authoritas & potestas judiciaria derivatur . ideo judices sicut & princip●s , d●i in scripturis vocantur , carthusianus in loc . report . de jure regis eccles. p. . b. king iames's speech , star chamber , . fol. . of his works . dicehatur autom curia , primò de regia seu palatio príncípis , inde de familia & judiciis in ●a habitis , ùt ostendit spelman in verbo . speech at white-hall . anno , p. . of his works in sol . selden's notes on forteseue , fol. . munus regiu● architectoricum esse , sic , ut non tam ipse agere , quàm altis agentibus prasidere , & ad offioiu●● eos compeller● debeat . hopperus , lib. . de instit. principis . ulptanus in . sed & si quid ss . . ff . de usu fruct . omnes qui ex omni aetate , hâc in civitate intelligentiam jurts habuerunt , si unum in locum conferantur , cum servio sulpitio non sunt comparandi , budaeus in pandect . priores , p. . edit . basil. in oraetore inquit , acumen diaelecticorum , sententia philosophorum , verba prope poërarum , memoria jurisconsultorum , vox tragaedorum , gestus ●oenè summorune aertificum est requirendus . de oratore . basilicon doron . ● . book p. . fol reseripta originalia , fundamenta esse & totius legis quasi cardines ; & quám rectè ab illo iuris principia appellantur , firmat casus illud quod sentit , bractonus lib. . fol. . ubi dicit , breve formatum esse ad fimilitudinem regula iuris . in prafat . ante . rel. cook. strobaeus sermonè nono , de justitia , p. . ● da simplicom , da probum , affectuum expertem , audeo dic●re , rara causa erit , in qua verum aut junta verum non videbit , immó deus plerumque inspirat , & talibus mentem movet , &c. j. lipsius n monitis politicis , cap . p. . rhetoric . ad alex. cap. . p. . anno . digest . lib. . tit. . de offic. praf . praet . p. . a test. punctam e● quod vivimus , & adhuc puncto minus . senec . ep. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . epicter in enchyrid . lit . : . . in pandect . priores , p. . edit . basil. holstemius in notis ad vitam . pythag. à por. phyrio script . p. in florid. de pythag. apud budaeum in pandect . priores , p. . ●rasm adag . . chil. . cent. . p. . athenxus deip. nos . lib. . plutarehus , lib. . de plac . philosoph . c. . physic. lib. c. . eccles. . . math. . v. ast . psal. . in verbo . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . salmuth in pancirol p . stobaeus , serm. . p. . basilic . doron . . book . p. . works in fol. pag. . &c. edit . paris . acts . cicero dialog . de oratore , dictum livii crasii . budaeus in pandect . pag. . edit . basil. . nil est quod pertinax opera , & diligens cara non ex pugnat . seneca . qui vel roscinm illum histrionum decus , hypocrisi & arte mimica superare etiam possunt . in pandect priores , p. . edit . basil. . budaeus in pandect . loco prae●ttato , p. . xenophon , lib de sociat . dict. . offic. . . offic. . such another was our edward the sixth . patriclus instit. reipub. lib. . p. . . salmuth in pancirol . tit. . partis secundae . p. . capitolinus in vita ejus . drusius , centur. . miscellan , p. . franzius de modo legendi s. bibl. p. , , . pitsaeus ad annum , . p. . ●uller worthies england , in middlefox , p. . (a) epist. ad lupset inter opera the , mori , imp. . plutarchus in j. caesare . salmuth in pancirol . p. . lib. . c. . in epist , ante catalogum senio . rum poetarum , hiboriam partis secunda , p. . lib. , c. . p. . edit . savil. ; in h. p. . edit . lond. particius , lib. ● instit. reipub. p. , . de themistocle , & de libris xeniadis . lib. . de vera jurisprud . tit . . de speciali juris interpretatione . doctor . & stud. book . c. . p. . b. phocylides apud stobzum . serm. . de imprud . ita jus reddi debet , ut authoritatem dignitatis su● ingenio suo augeat , calistratus , lib. i. de cognit . digest . lib. ● . tit . . p. . lib. . de morib . c. . p. . lib. . ad edictum digest . lib. . tit . . p. . h. arbitratu in gloss. jornandes , lib. b. p. , , edit . sylburg . parum aetatis multum gloriae . malmsbur lib. . de gestis anglor . c. . plin. lib. . c. . lilius gyrald . dialog . . histor. poetarum vopiscus in tac. theatr. vitae humanae , p. . non enim aut severitatis , aut clementiae gloria est affectanda , sed propenso judicio prout quequae res expostulat , est statuendum . hopperus , de ver jurisprud . p. . tit. . stobaeus , p. . * p. , , . plutarch in lib. an seni sit gerenda resp p. . edit . paris . lib. c. . . lib. . c. . . ad attic. lib. ● . ii. pro planc . . verr. a bencher of grays . inn , apud budaeum in pandect . priores p. . edit . basil. . fabianus iustinianus in indic . universal . ad lit . ius , &c. a p. . ad . possevinus bibliothec . selecta lib. . c. . & seq . ad sinem p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plutarch , lib. de adulat . & amici discrimine , p. . eliz. c. . h. . c. . c. . c. . h. . c. . h. . c. . m. sess. c. . eliz. . iac. c . . . report de iure regis eccles. p. . b. stobaus serm. . philo lib. de monarchia . crockier in thes. aphoris . politic . lib. . c. . contzen . lib. . politic. c. . lipsius in politic. c. . p. . arist. moral . c. . ficinus in platonis politic. moral . c. . in the true law of free monarchy . p. . inter oper . in sol . ide● cod . loco . cook instit. notes on . chapter , magna charta , p. . c. . upon his majesties retlrlng from westminster . iuramentum iustittariorum , e. . king's answer to the petition of right , d car. puston's stat. p. . king iame's speech , . p. , of his works in sol . cook instit. on chapter , magna charta , p. . speech , . p. . nulla leges it a seriti possunt , ut omnes casus qui quandoque inciderunt , comprehendantur . sed sufficit ea , quae plorùmque accidunt contineri ; si quid extra ea accidat , de ea interpretatione aut jurisdictione certius statuitur ' vel eriam novis legibus secundariis , qua ex primariis deducumur . hopperus , lib. . de vera jurisp. tit. . ad dominium non est necessarium , quod possit quis uti re cujus est dominus , in omnes usus . ariagonius , quast . . in secundam secunda st. ●hom . tit. de domimo , p. . grot. in heb. . . lege arragon , in sentent . quast . . d praeceptis spei , & timotis . art . . p. . speech to the bill of attainder , f. str. may . reliquia caroli , p. . galvin's case , rep. p. . ● instit. chapt. flattery , p. . speech to the country of nottingham , . reliq , carolinae , p. . cook . part , instit . c. . p. . instir. p. on stat. . westmin : h. . . ed. . stat. . e. . instit. p. . quod omnes tangit , ab omnibus tractari debet , reg iuris . sir tho. smith , de rep. anglor . lib. . c. . . answer to the rightad caroli . poulton , p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. stobaeus , serm. . p. . eicon basil. c. . upon passing the bill for a triennial parliament . eicon basil. c. . see king charles's message for peace from holmby , . fol. . from the isle of wight . p. . and p. . reliq . carolinae . see preamble to the statute . i maria , c. . instit. p. . on wesimin . . king iames's speech . p. , of his works instit. c. , p. . speech to the parliament at oxford . . reliq . caroli . p. . see sir thomas smith , de rep. angl. c. . resolute judges in calvin's case , rep. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . jamblicus in●pist ●pist . ad agrippam , apud stobaeum , serm. . p. . theatr. v. ham. vol. . lib. . tit. reges principes qui se legibus subjecere . suetonius in tiberio , c. . ita ipsum loco patris colebat , ùt cúmille rex cateris imperabat , ab illo archi-episcopo voluit aquaminiter imperari , j. brompton , p. . s. dunelm in w. . p. . brompton , p. . stubbs , p. . r. de dicet . p. . edit . lond. in prooemio confirm . legum d. edvardi , anno reg. . spelman gloss. p. . pref. to the th rep. w. thorn , p. . edit lond. dicet , p. . p. brompton , p. . simon dunelm , p. . knighton . p. . p. . salmuth in pancirol , tit . . partis secunda , p. . zuinger theatr ' p. . lib. . de princ ' roman . dicet . p. . brompton . p. , . knighton , . dicet . p. . sabellicus lib. . c. . morbo inopinato praeventus in nihilum sunt redacta omnia , cuspin . plutarch . in lib. de monarchia . aristocrat . & oligarch p. . lib. de creatione princip . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . libanius in ulyss declam . p. . britannia . annos litera , suos reges habuit ; tandem per julium caesar. cassemulano principe , romano imperio facta est vectigalis , lib. . hist. angl. h. . c. . & e , . c. . . the words of the stat. jac. c. . instit. e. . p. . cook on magna charta . p. . preface to . rep. an. . wals. hypodeig . neustriae . p. . in h. . p. . see cook . inst on c. . p. . high court of parliament . see cook instit. on c. . mag. charta on the statute e. i. de tallagio non concedendo p. , . where our text is quoted by sir ed. cook , so p. . gervas . tilbur . in chronic. p . edit . lond. . chronic. thorn. p. . gloss twysd . annex . legib . saxonicis , p. . gervas . tilbur . c. penult . spelm. in gloss p. . huntington lib. hist. wigorniens . ad annum . m. paris ad an. . brompton p. . greg. tolossanus syntag. lib. . c. . cives londinenses iteratò ad quingentas marcas talliati quasi servi ultimae conditionis ad regis arbitrium , non obstante aliqua libertate jugum subeunt servitutis , m. paris . p. . m. paris . p. . m. paris . p. . instit. on c. . magna charta . on westminster . instit. p. . instit. on chapter . magna charta , p. . math. paris . p. . sir tho. smith , lib. . c. . de republ . angliae . lib. . instit. digest . lib. tit . . de constitutionibus principum . digest . p. . in gl . ad prooem . c. instit. p. on stat. w. . h. . c. . instit. p. on w. . ¶ thesauro politico impress . francofurt . anno . de regno britannico , p. . quod principi placet legis habet vigorem , eas scilicat , quas super dubiis in concilio desimendis , procerum quidem consilio & principis authoritate accordante , vel antecedente constat esse promulgatas . fleta in proemio . papinianus jurisconsultus ab antonio caracalla securi percuffus est . caracalla enim cum interfecto fratre geta , ei mandaret , ut in senatu , & apud populum facinus dilueret , papinianus respondit non tam facile parricidium excusart posse quam fieri . irâ commotus caracalla . sanctissimum virum occide jussis spartianus in caracalla . legibus astringuntur rectores politici , nec ultrà possunt procedere in prosecutione justitiae , quod de regibus , & aliis monarchis principibus non convenit . quia in ipserum pectore sunt leges reconditae prout casus occurunt , & pro lege habetur , quod principi placet sicut jura gentium tradunt ; sed de rectoribus politicis non sic reperitur , quia non audebant facere aliquam novitatem praeter legem conscriptam . sanctus thomas , lib. de regimine principum , c. . king iames's basilicon doron , book , p. . works in fol. his majestie 's protestation in the head of his army at stafford , septem . . p. . collect. speech to the members of both houses at oxford , . p. . collect. contzen . politic. lib. c. . p. . sir edw. cook on stat. merton , c. . p. . . instit. ¶ lib. de literali & mystica iuris interterpret . q . art . . p. . lib. . c. . de eruditione principum . speech of king iames , . p. . speech of king charles , pass . bills in answer to the petition of right . caroli . sir edw. cook , on westminster , e. . p. . instit. p. . instit. sect. . instit. c. . on magna charta , p. , , . instit. on chapter , magna charta , p. . alciatus & brechaeus ad legem , , p. . de verb. signific . volenti non fit injuria . stamf. pl. coron . , . instit d part on chap. magna charta , p. . poulton , p. . eliz. dyer , . cook instit. of parliaments , p. . pag. . pag. . anno . temps h. . si rex quod absit vestro satisfecisset execrando proposito , non esset opulentior uno quadrante sequenti anno . et ceriè prius hoc caput exponam gladio , quam ecclesia destituatur minimo jure suo , p. . ¶ resolution of all the judges , iac. see d instit. c. . of purveyour , p. . see the preamble to the stat. . charles d , for the li. per annum . parvi dejectique animi est , de subdutis non profectum quaerere subditorum , sed quaestum proprium sanctus bernardus , lib. . de consid. instit. p. . king iames's speech , . p. of his works . by the stat. . and car. . see preamble to the statute e. . c. . sanctus thom. lib. . c. . de erudit . principum . plutarch in parallelis , p. . walshingham in e. . p. . edit . lond. malmsbur . lib. . in h. . p. . m. paris , p. . & . lib. . c. . de erudit principum . boni pastoris est tondere pecus , non deglubere , dictum tiberii apud sueton. in tiberio , c . holingshed , p. . plutarchus in orat. de fortitud . & virtute alexandri , p. knighton . p. chronicon . w. . . brompton . quod poena genus ipsis fuerit coma detensio in vilspendium , & opprobrium delinquentis constituta , in ss . de pace tenenda in usüb . fendorum . spec. saxonic , lib. . c. . king . . cowel in verbo theam . lib. de memora bilib . socratis . plutarchus ad ingentem ducem apud stoboeum , serm. . p. ● . apud s●obae●m firm . . p. . . jornandes lib. . de aelio pertinac . logibus namque regni & consuetudinibus de ratione introductis & di● obtentis , & quod laudabilius est talium virorum ( licet subditorum ) rex noster non dedignatur consilio , quos morum gravitare , peritia juris , & regni consuetudinibus , sua sapientia & eloquen●ia praerogat●và aliis novit práecellere , &c. glanvil in prolog . ante tractat. de legib. & consuer . angliae . ' o 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , stobaeus serm . . de justitia . p. . isocrat . in evagora apud stobaeum serm . . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , arist. lib. . de rep. c. . excellentia rei est in actu non in habitu , scholastici stobaeus serm . ● . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , eutropius in breviario , lib. . ad finem . eicon . basil. c. . to the them pr. of wales , now our dread soveraign . lege argumentum operis . lege lib. . c. . de regimine principum inter st. aquinat . opuscula . king iames's speech in parliament , anno . fol. . of his works . in the law of free monarchies . p. . of his works . instit. c. . on magna charta . p . eutropius , lib. . edit . sylburg . p. . aelian . lib. c. , variatum histor . omnibus fere natura animique dotibus vacuus , ut monstro similior , quam homini videretur , guicciardinus , lib. . herodian , lib. . p. . edit syl. burgii . jo magnus . . protestation at the head of his army , betwixt stafford and wellington , septemb . . . collect. p. . aquinas , lib. . c. . de regimine principum inter op●scula . part instit. c. . petit treason ad finom , p . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. archytas pythagor . apud stobaeum , serm. . p. , . caroli , pulton stat. p. . eutiopius , lib . p. . to. ● . 〈◊〉 sylb. quod confidentam sequatur securitas , pagn . in verbo . prov. . . prov. . . prov. . . instit. c. . p. . lib. . ● . ● . quamvis in statu innocentia nulla esset mise ria nulláque ignoran●ia , non tamen essent futuri omnes homines aquales in sapientia & virtute & in altis dotibus anima , tam naturalibus quam supernaturalibus ; & ideo . qui inter eos sapientia & virtuto praestarent dowinarentur aliis absque aliqua tamen molestia . arragonius q. . in secunda d. thom. p. . si homo non peocasset nulla fuisset agrorum divisio , sed omnia communia bonavent . ser● . to● . p. . nomen & conditione● servitutis culpa genuit , non natura ; & prima hujus subjectionis caput , est peccatum . sanctus august . lib. de vera innocentia , c. . in his account of the island of zeylan . c. voyages to the west-indies . hottoman in praesat ante commentar . julii caesaris . hac autem politia codem modo temperata videtur , qua dicitur lacedemonum illa perfectisuma ita , ut moses regiam quodammodo potestatem habuerit , sub dei tamen veri tunc & unici israelitarum regis auspicris . corn. bertrum , de politia judaica , c. . exod. . . prov. . . cunaus , de reipub . hebraeorum , lib. . c. . plaudere 〈◊〉 manibus pulsare & strepit●● facere , quod vel latitia vel derisionis causa steri solet quoties alicui pro re benè ge sta congratulamur , laetitiámqu● oftendimus . cu. ad q. fratr . lib. , , . priorum autem sanè regum merita , in libris regum non parvalaudantur , in israel autem reges , alios magis , alios minùs , omnes ta men reprobos legimus . lib. . de civit. dei. c. . ex maxima parte deo similis est putatus , neque antem facile ullus , aut in bello eo felicior fuit , aut in pace moderatior , nullo tempore ante eum res romana magis sloruit . eutropius lib. . his romam deformem incendiis & ruinis , permissa . si domini deessent , volentibus adisicandi copia , capitolium , aedem pacis , claudii monumenta reparavit , autelius victor . in vespas . quòdillum , & senatus , & populus ante imperium , & in imperio , & post imperium sic dilenit ; ut neque tra janum , nec antoninum , nec quemquam alium principem sic amatum . trebellius pollio ad sinem . speech in parl. . p. . of his works . de vitiosa monarchiae forma , quae tyrannis dicitur , lege contzenium , politic. lib. . c. . in vita ejus . jus tum civile tum municipial● publice docuit , habuitque auditores nobil●ssimos juvenes quamplurimos , pitsaeus in vito ejus . nota bene . dialog . secundo , de poetis , p. . partis secundae . zuinger theat●r . vitae hum. volum . . lib. ● . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , plutarchus in lib. an seni sit gerenda resp. in notis ad lib. . polit . cor . c. . p. . in notis ad c. . lib. . politic. e lopezo & gomara . et ritu veteri potestate deposita removetur , si sub co fortuna titubaveri● belli , vel segetum coptam negaveri● terra lib. . in valentin . & valente p . edit franc. wochelii . contzen . polltic . lib. c. . in illa oppressio multitudinis , essu s●o sanguinis , ordinis confusio , legum violatio , rerum omnium perturbatio . casus de tyrannide , lib. . c. . sphae●a civit. sed mihi sexoper obtemperaevit tanquam filius patri cic. ammianus marcell lib. . p. . edit . francof . & lib. . p. . r●● . iuris . tolossanus syntagm juris , lib. . c. . tit . . mr. matthew wren . valdesius , j. c. de dignitate hispaniae , c. p. . monarchiae nomine administratio illa contmetur , quae ununstantum habet dominum , qui superiorem non agnoscit . tolossa●us s●ntagm . juris , lib. . c. . tit . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 diotogenes pythag . apud stobaevm , serm. . p. . isocrates in evagora . ¶ principatum dol● partum magna virtute poste● administravit , rexit ille summa cum laude , & pietatis studiosissimus . egnatius , lib. . rom. princip . rivet exercit. . in gen. . bertram . de politia judaica , c. morcarus , in gen. . c. lib. . de republ c. . glareauus , orat. in suetonium . p. . august . scriptorum . exercit. . in gen. . lib. de gygantibus , p. . rivetus exercit. . in gen. . turrecrem . summ● eccles. lib. . c. . lib. . c. . lilius gyraldus in hercule . erat fortis & corpore & animo , qui auderet feras invadere . vatablus in loc . mercerus in . genes . cyropaed . lib. . geogr. sacr. lib . c. . lib. . de nat. deorum . in panegyr . flavius vopise . in procl . herodian . lib. . p. . edit . sylburg . aelius spartianus in adriano . lib. . p. . (a) lib. . c. . ●ulgosus lib. . c. . cap. . of his voyages to the india's . coram domino fi●ri dicuntur , aut quae deo pergrata sunt , aut qua ei displicent . grot. in loc . rivet . in loc . dissert . . bochartus geog. sacr. lib. . c. . & lib. . c. , . herodot . in ca●liope . xiphilinus epitom . dio●is , p. . in augusto caesare . lilius gyraldus syntag. . de natur. deorum , p. , . bochartus geogr . sac. partis secundae , lib. . c. , p . ¶ geograph ● . . p . edit causab . lib . geograp . ad initium bochart . geogr. s lib. . c. . herodotus in clio. lib. . p. . rivet . exercit. . gen. . geogr. lib. . c. . part● primae , p. . a●ùp 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . suidas in verbo . lilius gyraldus , lib. de annis , & mensitus ad mitium , de emendat . temporum . ninus primus omnium , veterem & quasi avitum gentium morem nova imperii cupiditate mutavit , primus bella finitimis intulit , ad libyae terminos usque perdo●uit , domitis proxximis , cùm accessione virium , fortior ad alios transiret , & proxima quaeque victoria , instrumentum sequentis erat , totius orientis populos subegit . diod. sic. lib. . biblioth . è cnidio . trogus , lib. . lilius gyraldus , hist. deorum syntagm . . lib. de fortuna roman , p. . edit . paris . lib. de magnitudine romana . sigonius de fastis & triumphis romanorum . annales armachani è fabio pictore . imaginem urbis magis quam urb●mfecerat . florus , lib. . messala corvinus . lib. de augusti progenie . in iuvenem eractus & virum e● o●ni plaga , quam orbis am●it imme●sus , reportavi● laureae triumpbos ; & in senium verge●s & nomine solo aliquoties vincens , ad tranquilliora vitae deces●it . ammianus marcel . lib. . florus lib. . c. . sigonius lib. . de nominitus romanorum . o populum dignum orbis imperio , dignúmque omnium & admiratione hominum ac deorum , jornandes lib. de regnorum & temporum successi● salmuth in pancirol . lib. . p. . vives in lib. . de civitate dei , c. . alciat . ad legem ● . lib. de verb. signific . p. . corvinus messala in augusti progenie . florus lib. . c. breviatii . lib. . condita est roma velut altera babylon , & velut prioris silia babylonis , per quam p●ac●●t orbem debellare terrarum & in unam sociotatem reipub , legumque perductum , longè lateque pacare . sanctus augustin , lib. . de civit dei , c. . aelius spattianus , in vita ejus , p. . edit . sylburg . quae enim res alia furores civiles peperit quam nimia faelicitas . florus , lib. . c. . flaccus , ep. lib. . so juvenal , satyr . . hanccine esse romam credis illam ● bi priseis temporibus & in aureo illo saeculo senes erant honestissimi , juvenes optimè morati , exercitus disciplinae observantissime , & censores senatoresque justissimi ? non est haec roma , nullum habet romae vestigium , nullum decus , nullam similitudinem . epist. ad pollionem . ¶ paterculus , lib. . sam. . . eusdem ego sicopinor atque id asserere non dubito , deum immortalem non charttate , atque reipubcura imperium sauli dedisse , sed quoniam arrogantiam saevitramque ejus introspexerat comparatione deterrima gloriam samueli quaesivisse , ut tali successore desideratior ille quandoque foret . cunaeus , de rep. hebr. lib . c. , ¶ the true law of the monarchies , p. of his works upon the sam. . . est in monarchia rex , aut consilio admissus , aut successione designatus ; est verò in tyran●ide truculeietus leo ; in monarchia proponitur virtus , in tyrannide triumphat scelus ; loges in monarchia aperte loquun●t , at in tyrannide oracula civitatis silent ; in regno communi bono 〈◊〉 , ac ist tyrannide populus opprimitur . casus sphaer . civit lib. . ● . . p. . in epist. ad ta pam clement . octav. ante tom. annal. in vita ejus . episiola dedicat oper. edit . frobenii , ad card. fonsecam . lib. . ● . ' i. contra petilianum . in vita ejus . his tanta authoritas , ut nullius scriptis post evangelicam historiam tarsensis que pauli , major hominum consensus accesserit . sa bellic . lit . . c. . in argumento sancti augustini ante lib. de civit. dei. in vives prafat . ante commenta rios , est quidem respub . ordinata hominum multudo , hoppotus ver . jurisp. lib. . tit . . civitatem appellandam esse censeo collectam hominum multitudinem ad jur● vivendum . patricius lib. . tit . ● . de instit. reipublic . ● instit. p. . sect . . caetu extraneorum prohibuit silias . in august . c. : quid enim necesse est tanquam meretricem in matronarum catum , sic valuptatem in virtutuus consilium adducere , cic. lib. . de finib . certa ratione asque ordine rempub. cons●itui . hopperus de ver . jurisp. lib. i. tit. . lib. . c , . de jur. bell . & pac . lib. . de legib. lib. de sanctitat . apud stobaeum serm . . stobaeus serm . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , arist. lib. . de repub . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. corporis hujus certum debere esse caput , & quidem divinum ; quoniam homo natura sua non sui generis animantibus paret . ( nam non oves ab ovibus , sed à praestantiori natura homme nempa reguniur ) sed um principi deo , cujus vicarii , & quas● viva imago sunt . ●qui inter homines regnum obtinent , nopperus lib. de vera jurisprudenti● . tis. . tholoss . syntag iuris civilis lib. . c. . p. . ●●sus in sphae●a civitatis p. . l. . c. . hist. animal . lib. . c. . lib. . c. . lib. de ver . jurisprud . c. ● . nam nunc tu potes roborare si●ut nos decem milia chald. paraphr . lipsius , politic . c. . monit . ● . p . casus sphaera civitat . lib. . c. . p . king iames's true law of free monarchies , p. . phavorinus , lib. de excellencia hominis , partis primae , c. p. ● , &c. omne quod est perfectum , vocari caput . j. c. blemmyis traduntur ca●ita abesse , ore & oculis pectori assi●●s . plin. na. hist. lib. . c. . in unaqua ●ue facie similir●do magnifi●eti● , a 〈◊〉 , pro●itatis , 〈◊〉 ignav●ae 〈◊〉 ac vitiorum omnium extat . plin. senior . lib. . lib. ● . de pa●●● animal . c. . p. . fet. martyr , in iudic. c. . v. . ● . v. . c. v. last . cum ●●bitis mutationem reipublicae , deus non ●lect●●ur ; nam rex semel inauguratus vi●●tur esse loco dei , immo appellatur christus domini . p. martyr . in sam. ● . . aurel. victor epitom . hist. august , sanctus thomas , lib. de regim . principum , c. ● . r●tilius benzonius in . psal. . quast . . prop. . p. . hist. animal . lib. . c. . p. . edit , paris . probi mors satis perdidit ; omnia pro●e passa est , quae patitur in un● homine mortalitas . flav. vopisc . in caro numeriano , p. . rualdus in vita plutarchi cap. . gyrald de diis gent. syntagm . . hopperus lib . de vera jurisp. tit. . zuinger theatr. volum . . lib. . p. . , . & seq . bonfinius lib. . c. . benzonius in psal. . q●oest . . p. . . & seq . lipsius . politic. c. . p. . & deinceps . johannes casus in sphaera civit. lib. . c. . p. , . the true law of free monarchs , p. . of his works in fol. lib. . physie . de gener. animal . p. . tom. . de excellentia hominis , partis prima , c. . p. . lib. . c. . de gener. animal . lib. de respir . c. . lib. . c. . de part . animal . regia potestas caterorumque principum civiles authoritas non hominum est inventum ; sed ab ipso deo per legem naturalem , qua sua semp●ernae legis participatio est , sanctissima fuit ordenatio covarruvias practic . quaestio . lib. . c . conclus . p . benzonius in psal. . quaest . . propos. . p. . * ad significandum illo debere uti ad nutum pontificis qui altaris est dominus quaest. . p. ● . ¶ si principes exinutu sulditorum & adhue singularium quorumcunque penderent potestate ; ●ertè non reges , sid insaeli●issima esse●e mancip●a , nec monarchia sed democratia ofset , pejor regno spartarum . tholossanus . syn tag . iurls univers . lib. . c. . p. tit. . philo lib. de creatione principis p. . sacramentum five intentione ministri non conficitur , bellarminus lib. . c . de justific . p. . lib. de creatione principis , p. . pag. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. aristot. hist. animal , lib. . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . hist. animal . l. . c. . l●b . . gener. animal . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lib. de spiritu , c. . ¶ metereolog . lib. . c. . in prooemio , lib. . . de nat. deorum , . . pro lege manilia philip. . reg. iur. caterum in omni corpore civili , quemadmodum in humano , & caput & membra sunt . & quaedam alic quibus illa colliguntur , veluti nervi , quibus membra singula , moventar , & m●nus proprium exequantur , & quemadmadum illi â cerebro , & capite manantes per iotum corpus diffanduntur , sic etiam in corpore●ivili à bene disposito capite robur in societatem subjectam permeat , & status ejus fit legitimus , qui nervus disciplina dicitur . tholoss . syntag. juris , lib. . c. . art . . zonar . annal. tom. . p. . haec est voluntas regis , viz. per just●ciarios suos & per legem . r . ●ol . . statute . r. . c. . sir cook● instit . p. . viri boni & sapientis est parere ra tioni , & ad eam se accommodare , haud aliter atque prudens nauta ad maris ac venti tempestates se accommodas . hopperus , de ver . jurisp . lib. . tit. . delegum mutatione . (a) instit. p. . plutarchus , lib. de profect . virtutis , p. . edit . paris . spartianus in severo . non populorum jussis , non principum decretis nec sententiis judicum constitui , sed naturae norma . hanc video sapientissimorum suisse sententiam , legem neque hominum ingeniis excogitatam . nec scitum aliquid esse populorum , sed aternum quiddam , quod universum mundum regeret , imperandi prohibe●dique sapientia , lib. . de legibus . hoppetus , de ver . jurisp. lib. . tit . . praetor quoque jus reddere dicitur , etiam cum imque decernit , relatione scilicet facta , non ad id quod ita praetor fecit , sed ad illud quod praetorem facere convenit . digest . lib. . tit . . de orig. juris . p. . è paulo , lib. . ad sabinum . cic. pro dejotaro ad attic. lib. ● . livius , lib. . ●●●rbe . tutela , jus & potestas in capite libero constituta , ad tuendum cum qut per aetatem sua sponte se defendere nequit . paulus , lib. . de tutolis . (a) lib. . de rustic . c. . vt enim tutela , sic procuratio reipubl . ad eorum utilitatem , qui commisii sunt non ad eorum , qui●us commissa est , gerenda est . . o●● fic . . interest reipubl . ut pax in regno conservetur , & quaecunque paci adversentur , provide dealinentur maxima juris , instit. p. . h. ● . c. . plutarch in laconic . apothegmat . p. . sir ed. cook preface to ● rep. part . e . . b. cited in calvin's case , rep. p. . ¶ pag. . of his works in sol . report . h. . p. . instit. ingram's case . instit. c. . p. . imperatorem quae vocas in quem populus omne jus & authoritatem suam legé regia contulit ●●de & dominus ●erra● . & lex maris dicitur pene● quem nen solum tam tutius re●pub . quam 〈◊〉 & pacis est arburu●m . hopperus , lib. . de ver jurisp. tit. ● . ¶ shute hist. venice . p . solum vitium crudelitatis excusans . spartianus , de severo . p flavius vopise ▪ p . edit sylb. debent prosecto principes sive reges praeter justitiam , etiam puta●i impr●mis studere , ut tutores status public● nominari mereantur , lib. . de clem. c . tales & dicemus reges qui à bene regendo nomen la●ent . tholossan . syntagm . ju● , lib. . c. . tit. . basilicon doron , book , p. . of his works in ●olic . basilicon doron , ● book , p. . quanta illa est stultitia , existimare magnificum vel illustre , quod à magno setiere vel flagitio est , lib. . hi●t scotic . p. . . cambden in britannia , i. clandus in indice annex . assert , arthurii , ad vocem britannia . hist. ●tat . tertiae . p. . knighton , p . edit lond. fu●●●n & alit ( praeter herculem ) complieve● ex adulterio gemti , ●t ex veteri constat historia , quorum virtus dome militiaeque eximit clar●it inter nos . & noster arthurus bri●an●iae ornamentum maximum & sut saeculi miraculum umcum essloruit . lelan●us in assert . arthurii . egnatius , de origine turcanum , d'avila . hist , et. p. . in closs , ad n●m●n b●uti . scot. enim illud dicitur , quod ex diversis rebus in unum acerumm congregatur m. west . p. . ad ann. christi , . hist. scot. lib. . p. . b. lib. . p. . king james's sp. white-hall an. . p . king james law of free monarchies p. ● . oper. lib. . & . hist. scot. (a) see his notes , on c. . of our text , p. . (b) knighton lib. . de eventib. angl. c. . p. . edit . london . brompton . p. . ● instit. iurisd . courts c. . p. . merum imperium publici judicii principali●er vindicat sibi tantùm corporales panas ; est enim merum imperium habere jus gladii bocerus lib. . de bello , c. ● instit. p. . c. proximum à diis immortalibus honorem memoria ducum-praestitit , qui imperium populi romani ex minimo maximum reddisiet , su●●on . in octaviano augusto , c. . seldens titles honour , p. , . true law of free monarchies p. works in fol. dictaturam quam pertinariter populus ei de ferebat , tam ●●●stauter repulit . sigonius in comment . de sast , & triuraphis rom. p. . edit . syl. pompon . mela lib. i. demens aegyptus ob vanas superstitiones & deorum portenta ab ipsis excogitatae , juvenal . satyr , . suidas in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lilius giraldus dialog . . de poët . histor. p. . sape ejusmodi rixis oculorum & vitae periculum adut , sueton , in ne●one . sueton in tiberio . c. . diodot sicul. bibl. p. . edit . rhodani imp● . hanoviae , . p. , & c● pa●●● ●● apud graecos nugari desiit . plin. de diodoro siculo . (a) cap. . in vita plutarchi , p. ● . c. . p. . lib. de vita mosis , p. . ammianus marcellinus , lib. . in joviano , p. . edit . sylb. speech at white-hall , . p. . of his works in folio . plin. lib. . c. . geograph . lib. i. p. . edit . casaub. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . strabo geog. lib. i. p. . lib. . p. . lib. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . menand . apud stobaeum , serm. . de justitia . p. . morum legumque regimen recepit aque perpiinum . sueton , in octav. augusto c. . ex orphei hymnis justitiae , stobaeus , serm. . p. . sabinum consularem virum ad quem libros ulpranus scripsit , quod in urbe remansisset , jussit occidi ; removit & ulpianum iurisconsultum , ut bonum virum , & sabinum rhetorem quem magistrum caesaris secerat , lampridius de heliogabalo p. . edit . sylb. tacitus . os ferreum & cor plumbeum , suetonius in nerone . c. . genus eloqùendi secutus est elegans & temperatum , vitatus sentemiarum meptiis alque inconcinnitate & in conditorum vorbo rum fatorilus sueron . de octavian . aug. c. . alciatus , forner . & brechaeus in legem . ib. de verb. signific . p. , . inter gentem & familiam illud interest quod gens ad nomen , familia ad cognomen refertur . sigonius do nominibus romanis , p. . sueton. in nerone . in jul. caes. p. . qui sinul habitant , unum corpus faciunt civile , & universitati & corporall dies dicuntur , qui in communione aliqua conscripti vel admissi sunt . tholossan syntagm . juris lib. . c. . & lit . . c. . tit. . plurimae factiones titulo novi collegit ad nullius non sacinoris societatem coibant . sueton. in octav. c. . tholossan syntagm . juris lib. . c. . tit. ● . choppinus de domanio franc. lib. . p. . corpora omnium constitusit , lampridius in severo . p. . edit . sylburg . c. . magna ch. rep city of london's case . nota benè . casus , sphaera civit. lib. . c. . p. . covarruvias , practic . qu. lib. . p. . vt per annos tres & viginti nullum sub eo bellum fuit , amor enim & timor gentium in eo concertarunt bellum movere timentibus his adversus principem , quem ut numen aliquod venerarentur . nisi enim hic pracfuisset . majestas rom. imperii facile hinc concidisset . egnatius in vitis corum , p. . edit . sylb. hist. venice , book . p. . pag. . pag. . pag. . pag. . see law of free monarches , king iames , p. . of his works . gothos censuit prius aggrediendos , quod ●● reipublicae hostes , tyranni principis essent . egnatius in vita ejus , p. . avaritiam ne culpes in eo , & temporum calomitas & laudabilis ejus usus facit . egnatius in vespas . p. . providente ipso domino rege ad regni sui angliae meliorationem , & exhibitionem justitiae ( prout regalis officii exposcit utilitas ) pleniorem , &c. provisum est & statutum . prologo statuti de marlbridge , anno dom. . h. . instit. part p. observe well this law , instit. p. . on westmin . . c. ● . shute's history , venice , p. . sit vox legis terror , sit legis paena fulmen ; draco non sum atheniensis ille , neque leges sanguine conscriptas volo , sed hoc velim , ut voce panaque legis deterreantur omnes , casus in sphaera civitatis , lib. . cap. . p. . haud sanè improbandum principem numina terris dederunt , si quantam literis & militari disciplina vacabat a● venationib●s , tantam curam ad rempublicam cognoscendam impendisset , egnatius de gratiano , p. . edit . sylburg . westm. instit . p. . fornerius in leg . . ss . p. . de verb. signif . sigonius lib. de fastis & triump . rom. p. . choppinus lib. . de domanio franciae tit. . de bonis advenarum . p. . * holingshed . p. , ● , , . psal. . . pagnin . in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . syntagm . iuris lib. . c. . tit. . adversar . lib. . c. . nota in sueronium p. . edit . sylburg . institutes c. . title court of chauncery p. . art . , , . instit. p . on westm. . c. . resolution of the iudges loco precitato , p. ● . xiphilinus epitom . dion . p. . in augu●●c . idem p. . terrae certè itala sub gallorum principatu adeo floruit ut vetera romanorum princpum tempora non desiderarent . egnatius in vita arnulphi p. . edit . sylburg est quidem servitus libertati contraria , ita constitutio quadam de jure gentrum , quâ quis domino alieno contra naturam subjicitur . fleta , lib. . p. . civilis eteni●● potestas , naturae & dei ordinatio est , ad humanum convictum & humani generis conservationem necessaria omnino ; nam enamsi respubl . & populi , jus habuerint naturali notione creandi principes & reges , quia tamen haec focerint divinitus erudita , publica haec & civilis potestas , dei ordinatio dicitur . cova ruvias practic . quaest. c. . p. . lib. de creatione principis , p. . quo firmior respubl . foret . ita sanuit edixitque , omnia uti ex legibus fierent , &c. de republ . hebraeorum , lib. . c. . law of free monarchies , p. . lex quae magistratibus imponitur , est ut legum cusiodes & al●i non ipsi modo rem bene . gerant . sed & alios qui idem faciunt post se relinquant , non aliud ob oculos habentes , quam justitiam , & parati potius mortem obire , quam ut hae● patria adimatur . hopperus , . . de ver . jurisprid . tit . . p. . regenti imperium omniae nimia velut praerupti scopuli sunt devitanda . ammian . marcellinus , lib. . p. . ¶ eicon basilic . c. . to the then prince of wales , our now gracious soveraign , whom god long preserve . instit. on c. . magna charta . p. . king charles the martyr . eicon . basil. c. . ad ann. . p. . tametsi quid libris commune cum pictura : pascit illa tantum oculos , hic animum mentemque instruunt ; illa mutam , nanem , & plaerumque falsam descriptionem continet , libri , viventem praeceptionem , atque exactam spondent ; tabulas ctiam imperiti pingunt , literarum monumenta non nisi ductisumi consiciunt . baptist. egnatius in epist. ad minutium ante caesar. philostratus in vitis sophistarum p. . in phavorino . q. hatetius familia senatoria eloquentia , quo ad vi x●● , celebrata , monumenta ingenii ejus baud peninde retinentur , scilicet ●●pot is magis , quam cura vigebat ; utoque aliorum meditum & labor in posicrum valesc●t , sic haterii canorum illud & prosluens ingemum cum ipso simul extenblum est , 〈◊〉 . lib . derivativa potetesias est ejusdem jurisdictionis cum primitiva . reg. juris , instit. p. . nobis ergo qui de jure disputamus qua sit in principe potestas , non licet nec licebit unquam in principe , constituere potestatem , qua ejus libidine & liberae voluntate absque recta rationis limitibus ducatur . covarruvias , lib. ; va●resolut . c. . p. . ad prudentiam semina prastari sanguine , quare molles carnes aptires ad disciplinam , sane spiritus subtiliores agiliores lucidiores& ut ita dicam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . caesar scaliger in lib. . c. . aristot . de hist. animal . p. . * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , dictum alexandri apud stobaeum , ser●● . . p. . plutatchus in alexandro , p. ● . aristot. lib. de virturib●s apud stobaeum . serm. . privatio quantum ad illud quod significatur per nomen , est non ens , & praesupponit sabjectum & habilitatem subjecti ad formam cujus est privatio . sanctus thom. prima parte qu. . fitz-herbert's religion and policy , p. . plutarchus in lib. an sevi administr . sit respub . cassiodor . variar . lib. . epist. . in prolegom . ad vitam boetii p. . oper . quod in libertatem populum romanum viderentur velle vindica re . lilius gyraldus dialog de poet. historic . p. impress . basiliae ann. . impress . basillae ann. . henricpeter . prosae secunda lib. ● ●rimus homo nibil omnino brutalitatis habuit , hoc est , nihil omnino brutalis desipientia aut temeritatis sive praecipitationis habuit , sed rationalis & modestus erat in statu illo & erectus ad bona spiritualia , & aversus ab infimis suis. gulielin parisiensis , de universo partis primae , c. . p. ● . malus autem s● regnet se●uus est , ner unius bo●inis , sid quod est gravius , tot dominorum guot v●t●o●um . lib. . de civii dei. c. . eutropius , lib. . spo●swood . p. . p. . eico● . basilic . c. to he then prince of wales , our now soveraign . c. . non caret regia potestate qui corpori suo noverit rationabili●er imperare , vere enim dominator ▪ est terrae , qui carnem suam regit legibus disciplinae . sanctus a●gustin . de offic. magi. stratus , c. . contra epist. manichaei . somnialis faelicitas , ex necessitate maxima mi● seria est , quia qui magis amat luxuriav● , magis captus est in ea , & magis servus ●●sius magisque impo●ens ad a●●a ●ona acqui●endae . cap : de legibus , p. . consuetudinales habitus affuefactione operum acquiruntur , & quodam modo generantur , partis secundae de vniverso . parte prima , c. . p. . omnes virtutes erunt in actis in gloria , parif lib. de retribu●ionibus sanctorum c. . p. . potentia non conjuncta actui est imperfecta . durandus , quaest. . lib. . disti●ct . . p. ● . potentia illa est m●●●●●●era , er q●●● ha●emus principa●tus do num du●●●●● , lib d●sunct . , q . p. . status gloriae nihil habet imperfectionis aut carentiae , seu desiderii cujuscunque rei non habitae parisiensis , secundae partis de universo , part . . c . p. . aequalis erit gloria sanctorum spirituum & angelorum . guiliel . paris . part . . de universo . c. . p. . partis secundae de universo , part . . c. . p. . quia conjunctio vel applicatio animarum hu●nanarum ad deum altissimum , deificatio ea . rum est , quod tibi dubium esse non debet . idem c. p. . parisiens . c. . p. . tom. . secundae partis de universo part . . c. . p. . durandus . lib. . dist . . p. . b. angeli ob permanentem in natura stabilitatem nomine columnarum in scripturis appellantur . benzon . in psal. . c. . p. . in cap. . sapientiae tom. . p. . omnis virtus generaliter , & omnis potestas e●●peditior & ●otentior & efficacior ad id , quod potesi per se●etipsam , quam ad id quod non potesi nisi per aliud ; similiter omnis virtus , & ' omnis potent●apotens per se , hoc est , essentian● suam , vel per id quod est , apud cam & in essentia sua , quam quaevis alia , quae non potest nisi per id quod extra ipsam esi . guiliel . parisiens● secundae partis , parte secunda , c. . p. . de universo . angelus perficte cognoscat perfectè omnes causas naturales necessa●tas , & contingent●s , ac per hoc sciat , quae causa aliam impedict vel non . durandus , qu. . lib. . dist. . p. . sanctus hieronim . lib. . in c. . ad galat. tom . gen. . gen. . . exod. . . angelus non potesi demereri , quia peccatum seu demeritum non potes● esse in voluntate nisi praecedente aliquo defectu in cognitione . durandus qu. . lib . dist . ● . p. . gen. . . ● . v. . in . aeneid . lib. de r●tribut . sanctorum , p. . singulariter vero notandum est non infrequens esse , ut heroum & principum liberi , etiamnum adolescentuli , ardua & consulta negotia faeli●●ter exptevis●e leguntur , sunt quippe occulta quadam virtutum semina regibus ingenita quae si aaolescere sinantur , repente fructam ferunt industriae & gloriae supra aliorum mortalium facultatem , & ante tempus naturae legibus praestitutum , quasi praecoci fr●ge . in panci●ol . t it . partis prim● p. . the chancellour's character . aeneid . plin. lib. . 'a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . l●● ad●●gustum ●●gustum , apud xihil in epi●om . dionis , p. . edit . sylburg . dr. wiseman in his book . lex legum . printed . fremant omnes licet , di●am quod sentio ; bibii●thecas me bercuie omnium philosophorum , unu● mihi videtur duodecim ta●ularum libellus , si quis legum fontes & capita videru , & authoritatis pondere , & utilitatis ubertate supe●are . p ● ri●us senens . lib. . instit. reipub . t it quinto , p. . b. lib. . instit. reipubl . tit . p. . observe well this . adag . . chil. . cent. . herbert . hen. . p. , . ius naturale esse , quod natura omnia animalia docuit ; atquo jus istud non humani genetis esse proprium , sed omnism animalium quae in terra , qua in mari nascuntur , avtum quoque commune esse . seldenus de iurs naturae & gentium , lib. . c. . calvin's case rep. doctor & student . c. . vis illarum tam latè ad omnes pertinuit . ut qus nescirent ea , interficere in bello atque ex hominum communione tollere jussi sunt israelitae , cunaeus de rep. hebraeorum lib. . c. . lib. . de republ. fornetius ad legem . p. . de verb. signifie . obligatio juris vinculum est quo necessitate astringimur . instit. d. ti● . de obligationibus l. . &c. * decretal . dist. . . & . lib. de literali & mystic juris interpret . quaest . . art . . p. . dr. ● student . c. . instit. p. . p. , , . , . tholoss . syntagm . juris . lib. . c. . . p. . lib. . c. . ss . . lib. . c. . ss . . pandecta iur. civil . sive lex jubeat sive consuetudo dum vetustissima , & post hominum memoriam sit , ca enim prjvilegii jus habet & qualis nunc est , presi●mitur semper retro fuisse . alciat . ad legem . lib. de significatione verborum , p . consuetudo antem , etiam in civilibus rebus pro lege s●scipitur cum deficit lex , nee dissert s●●tura an ratione consisut quando & legem : atio commendat . c. . lib. de corona ●ili●is . reg. iuris . choppinus ●● . . de domanio franciae , ●●● 〈◊〉 . . c. . ●● . . syntagmat . juris universi . lib. . c , . p. . ius naturale per positivum quandoque specificatur , quandoque determinatur carraria de literali & mystic . jur. interpret . partis secundae reg. . art . . . . antiquitus leges solonis axibus ligneus inscriptae & romanorum in are tabul . tholoss . syntag. lib. . c . art . . cook instit. c. . p. . & p. . doct. & student . c. . ante mosis tempestatem scripta jura non agnovit orbis . ●tsi enim amca profecto haud sane sine legibus gens hominum aguaverat , tamen neque publicis tabulis cae , neque ullis monumentis erant consecratae . cunaeus , de repub . hebraeorum , lib. . c. . sicuti & leges quidem ra●one jurisdictictionis in s●o territorio parliamentum facere potest , & de quibus constitutio regia diversum non inhibet , at sine consensu principis leges statuero non potest . tholoss . syntag. juris , lia . . c. . . poulton's stat p. . see sir ed. cook , c. of penal laws , instit. lib. . tit. . de constitutionibus principum . ex ulpiano instit. . p. . . cum principis interlocutio redacta est in corpore juris . gloss. p. . interlocutus est . omne jus aut consensus fe●u aut ●e ●es●●a constituit , aut consuetudo fir me● . monestin li●● regularum digest lib. . tit. p lib excusationum . rot. parliamenti . h. ● num . 〈…〉 peter trea●● . p. instit. p. , . in stat. merton● c. . p. . instit. britannia , p . britanniam circumstuam oceano , abo ●g●n● tenuere pomponius le●●us . p. . edu . sylb. p. . pag. . . holingshed's description of britain , p. , , , &c. book hist. britain , holingshed , p. . vide chronic. august . cantuariensis , pag. ●● qui prius vocati sunt reges west ●a●●num , abhinc vocandi sunt reges anglorum . dicet , p. . ●ornalensis p. . edit . lond. pag. . note this . sunt enim infirm & tepidi amatore ; justitiae quibus aus vigor , aut servor deest , aut fortassis uterque ; cum uterque sit , summopere necessarius . sanct. bernardus in declamat . in verb. dixit simon pe● tius ad iesum , aggressors est & britannos ignotos anteà . superatisque pecunias & obsides imperavit . in jul. caesare , c . p. . cambden . p. . aelius spartianus in adriano p . in severo . jul. capitol . in antonino , p. ▪ britannia , p. . & seq . britannia , p . about the year , . britannia , p. . brompton in will. . p. . vix aliquu princeps de anglorum progenie esset . p. , . britannia p. . & seq . pag. . law of free monarchies . p. . see vet . m. charta , p. . sub titulo , nomina regum , fitz-herbert , religion and policy , p. . prov. . . ad caput p. . brompton , p. . . in praefat. ad leges w. . ●dit . twisd . p. . spelman in gloss. p. . jornalensis p . bochart . geogr. sacr lib. . c. . p. . hic denique populus colonias in omnibus provineiis misie , ubicunque vivit romanus habities , senec ad albinum . c. . indè habitus nostri honor & frequens togapau atimque decessum est ad delinimenta vitiorum , porticus , & balnea , & conviviorum elegantiam , idque apud imperitos humanitas vocabatur , cum pars servitutis esset . tacitus in agricola . caesar com. lib. . & . bell. gallic . in claudio c. . lib. . in vita constantii tom. . august scriptur . p. . edit . sylb. morum & linguae gaudentes similitudine leges passim triumphatis populis inferebant , patriarum suarum ritus , & vocabula plurima retinentes . spelman in gloss. p. . de gothis . saxonibus , longobard , &c. preface to the rep. est enim sciendum ; quod consuetudo regni no wegiae est usque in hodiernum diem , quod omnis qui alicujus regis norwegiae dignoscitur esse filius , licet sit spurius , & de ancilla genitus , tantum jus sibi vendicat in regnum norwegiae , quantum filius regis conjugati , & de libera genitus , r hoveden . parto poster p. . preface ● . rep. iste edwardus postquam rex coronatus fui● cum concilio baronum & eaeterorum regni ▪ fecit renovare & stabilire , & confirmare bonas leges , quae sucrunt per annos inter dormientes soporatae , & quasi oblivioni traditae ▪ leges istae voc●ti sunt leges sancti edwardi non quia ipsas primo invenorat , sed quia quasi sub modio positae , & in oblivione derelictae , â tempore regis edgar avi sui qui primo manum suam misit , ad ipsas inveniendas & sta●●enda● ▪ knigh●on , de eventibus angliae , lib. . cap. . pag. , . edit . lond. notes on this chapter , p. . dominus nolentes , & invitos vasallos jure communi feudorum , & exceptis consuetudinibus privatis , non potest in alium alienare , nisi necessitate adigatur ad venditionem . tholossan . synt. juris , li● . . c. . ss . p. . subsidium adversus rebelles & imbuendis sociis ad officia legum . tacit. annal. lib ▪ . de coloniis rom. see the notes on this chapter , and also on fleta , p. . . & seq . preface to the ● report . preface ●o the ●o . r●●●● . s● im●●●m pro● glossary . observe this well . the authour's impartiality . speech anno p. . of his works . selden on fleta , c. . preface to the ● report . 〈…〉 te well 〈◊〉 excellenc●●f the common-laws . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plutarchus . lib. de fortuna romanorum , p. . fons emanat . cic. . divin . lib. . de juven . t . eicon basilic . c. . eicon basilic . c. . eicon . basilic . c. . cuspinianus in theodos. neque aliud ex imperio sihi cons●quuta est , quam justum bonumque nomen apud omne● . tacitus , lib . hooker and vo●el in volum . of description of britain , p. . eicon basilic . c. . iactura , propriè damnum , dicitur quod fit praecipuè in mari quum quis magnas mer. ces , quas secum velut tempestate ingruente cogitur in mare conjicere , ni navis obruatur . j. consulti . epist. ● . aeneid . . ● . de amicit. ● . eliz. ● . and by oath of allegeance . instit. p. . chap. parliaments . temp. e. . & ▪ e . instit. p. . messul● corvinus , lib. de augusti pro● 〈◊〉 ● ● ▪ . 〈…〉 h●m p . 〈…〉 momerum deformi & 〈…〉 enim super wille , & 〈…〉 &c. suetonius , in 〈…〉 . instit. p. . seminarium senatorum equestrem locum esse . sueton. to augusto , c. , . magn●m virum esse oportere , quem saceret senatorem . aelius lamprld . in severo , p. . in senatum legit sine diserimino aetatis , census , generis , pecuniae merito . lib. . p. . lib . p. . consulto valeriani frairis sui in gallien● . p. ● . aliud in impera tore quaeritur , aliud in oratore , vel poeta flagitatur . idem codem loco . instit. p. . instit. p. . rastal . p. . instit. p. . see rastal at large , p. . deliberatio omnibus rebus necessaria . quae homjnum indis●ussos colores possit refraenare : temporeque indignius , ut aliquid maturius agamus . tholoss . syntag. juris , lib. . c. . tit . . instit. p. . r. . stat. . c . instit. p. . ¶ h. . c. . n●que sunt praecipitanda opera nostra , aut consilia , nec ordo corrumpendus . cantela & illa laudabilis in quae totum agit ratio , & furor nihil sibi vendicat , agendumque nihil prius , quam concitatae mens ad tranquilitatem redcat . tholoss . syntag. juris , lib. . c. . tit . . eliz. c. . in senata etiam excusatis , qua facta erant . iuravit se nunquam senatorens nisi senatus potentiae puniturum . spartianus in adriano , p. . august . script . herbert in h. . p. . the very words of the preamble of the statute . westmin . e. . instit. p. . gracchus legem tulerat , ut equites romani judicarent ; judicaverunt per annos fine infamia : post victor sylla legem tulerat , ut senatorius ordo judicaret , & judicavit per annos decem turpiter ; nunc aurelius cotta legem fert , ut senatores , & equites rom : & tribuni aeraru simul judicarent budaeus in annot. reliquas , in pandect . reliquas . p. . edit . basil. cook . instit. chap. parliaments , k iames's speech . & . p. . & p. . cambd. britannia , p. . sir tho. smith , de repub. anglorum , lib. . c. . description of england , c. ● hooker & vowel , p. . speech . fol. . of his work. a good kings value of subjects love . instit. pag. . chapt. parliaments . satius est in tempore occurrere , quam post vulneratam causam remedium quaerere . tholoss svntag . lib . c. tit . . prudentia non est tantum in intellectu sicut scientia & ars . sed habet aliquid in appetitu sicut rectitudinem . sancius thom. partis primae qu . prima secundae q. . art . . sam , last . prov. . prov . king. . . flor●s , lib. . c. . sir tho. smith , de repub angl. c. . lib. de annis & mensibus , partis secundae , p . in vespasiano , p. . in nerone , p. . ¶ instit. p. . in juliano , lib. . p. . & lib. . p. . in aurel. p. . sam. . . vrbis romae parentem romulum senatus in amplissimo dignitatis gradu ab eo collocatus . in ●uria lacera vit ; nec duxit nefas ei vitam adimere , qui alterum romano imperio speritum ingenuerat , rude nimirum illud & ferox saculum , quod conditoris sui cruore maculatum ne summa quidem posteritatis dissimulare pietas potest . valet . max. lib. . c. . (a) lib. . & . ] immortalitate dignus scaliger , in ep ist . ad manilium citiusenim arcus caelesti variis coloribus sine nube apparebit , quam multiplex virtus sine invidia . forcatulus , de gallor . imp. & philosop . lib. p. . in cognoscendo ac decernendo magna animi varietate fuit modo circumspectus & sagax , modo inconsultus & praeceps , nonnunquam frivolus amentique similis . sueton. in claudio . nota bene . vtinam mortuis vitam darepossem . culpinianus in theodos. neque a'iud ex imperio filii consecuta est quam tacit. lib. . tholoss . syntagm . juris universi , lib. . c. . art . lib. . c. . tit . . hermogenes , de public . & vectigalibus . vt ostendam quam longa consuetudine corruptos d●pravatosque mores principatus parens noster reformet , & corrigat , in panegyr . . ¶ epist. lib. . ad minucianum . rhodi rursus reformandum ac v●lut recoquendum se dedit . de cicerone , quintil. lib. . c. . statute marlborough , h. . anno . nemo prudens sin● justitia , sine temperaentia , sin● fortitudine , nec prudentia ignava esse potest , aut injusta , aut intemperans ; quia si aliquid corum in se admitteret , prudentiae non esset . jacob. mausacus in judicio , de plutarchi scriptis , p. . edit . paris . instit. p. . king iames's speech , . p. . spelman in gloss. p. , , . accusatorem alicni comparare . cic. pro cluentio . comparare canem ad rixam , ad pugnant , ad cursum . columella , lib. . c. . in ●stentationem comparare declamationem . quintil. lib. . c. . parium comparatio nee elationem babet , nec submissionem ; est enim equalis . gic. topic . . in comparatione vis rerum cernitur . idem . mic. . . sed cum lego , ex comparatione sentio , quam malè scribam . plin. ep. . lib. . offic. . alterum severum clementemque , bonum illum , istum constantem , illum nihil largientem hune assluentem copiis omnibus dicerent . julius cap●●olinus , p. . august . scriptor . dictus●rebel ●rebel . pollio . p. . sigonius ●riumph . rom. p. . nemo nostrum frugi esto . strabo . lib. . qui luxu & flagitiis alter fuit nero , foris c. o , totus ambiguus , ut ex contrariis diversisque naturis unum monstrum novamque bestiam diceres compactam . sanctus hieronym . ep. contendere pro defendere & affirmare . celsus , in praesat . lib. . grave agmen ad euphratem contendit . curtius . lib. . cic. . philip. . verrem . lege digest . lib. . tit . . p. . in gloss. si jurgant ●enevolorum concertatio , non lis inim●corum . tullius , de rep. lib. . jurgare igitur lex putat inter se vicinos , non litig are . nonius . non differendarum litium causa , sed tollendarum , ad arbitros itur . celsus , digest . lib. . tit . . p. . litis contestatio est hins inde , apud judicen● negotii principalis facli narratio una cum petitione ab actore facta & re● contradictione . corvinus in enchiridio , tit de litis co●test . p. ● . quintil. lib. . c. . alciat . in legem . lib. de verbor . signific . p , . litem in judicium deducere est litem contestari lib . tit . . p. . lib. . tit. . de procurationibus contestatum , in gloss. p. . in leg. . tit . . de verb. signifie . digest . lib. . tit . . de testibus , p. . & seq . digest lib. . tit . . dignitas h. p. . digest . lib . tit . . p. . domestici mag. tholossan . syntag. juris , lib. . c. . tit . de testibus . fotnerius in legem . ss . . de verb. signific . p. . duo ad minus requiruntur testes in plena probatione . tholoss . syntagm . juris . lib. ● . c. . ss . . corvinus enchirid. tit. de testibus . grotius , in johan . . v. . vbi numerus testium non adjucitur , etiam duo sufficient ; pluralis enim electio duorum numero contenta est . ulpianus , lib. . ad edict . digest . lib. tit . . p. . sapientor lex divina exigit testes in quaque causa binos aut ternos , primum rejiciens singularia testimonia , deinde oftendens cam posso esse viri alicajus famam , ut facilo non uni tantú , sed & duobus testibus sit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . tunc igitur tertius non exigetar testis ; nam probationum pondera , angustis ●inibas circumscribi non possunt , sed pro personarum rerumque circumstantia boni viri arbitrio astimanda veniunt . grot in ma●th . . . bartolus , digest . lib. . tit . p. . si lis aut accusatio confirmata fuerit , duorum aut trium testimonio rata erit . vetabl . in deut. . . in cap. . ad hebrzos . v● . . digest . lib. . tit . . p. . de probatioaibus . digest . lib. . tit . . p. . in marg. gloss . digest , lib. . tit . . p. . (a) crotius in deut. . v. . (b) and e. . c . instir. c . petit treason , p. . e. lumly's case . probationes oportetesse lu●e clariores . reg. juris . instit. p. . e. . c. . e. . c. . e. . c. . h. . c. . h. . c. . stat . . regist. fol. . vicinus facta vicini praesumitur scir● reg. jur. polydor. virgil. cook preface to the . rep. duodecimvirale istud judicium altioris est originis , & ab ipsis anglo-saxonibus . spelman in gloss. p. . inter ll. ethelrecii , c. . & . lib. . c. . cambden britania , p . rev. ● . . instit. p. . secundum mittit quidem jupiter , sed ex concilit sententia ; duodecim enim deos advocat . natural quaest. lib. secundo , c. . cicero , secunda legibus . choppinus . de domani● francia , p. . reg. juris . instit. p. . b. amos . . the credit of iuries h●w preserved . reg. juris . iustit . p. . b. reg. jutis . actor est qui alium prius , ad judicium evocavit . digest . lib. . tit . . gloss. in tribus , p. . tholoss . syntagm . jutis . lib. . c. . tit . . datur actori sacramentum propter enormitatem criminis . digest . lib. . tit. . p. . gloss. a. digest . lib. . tit . . closs . k. consenserunt . p. . lib. . ad edictum . digest . lib. . tit. . de probationibus , p. . baldus in marg. gloss. titul . de probationibus , & praesumpt . p. . digest . lib. . tit . . digestorum , lib. . tit. . in gloss. b. debet , p. . epist . cic. . de divinat . . de re rustic . c. . . cic. . de finibus . de orator . . cic. . de lege agtar . ac si unum aliquem hominem , ac non rem incorpoream peterent . sabellicus . lib. . c. . a. gellius , lib. . c. ii. theatrum v. humanae . 〈◊〉 . lib. . p. . esth. . . lib. . c. . sabellicus . aenead . lib. . pet. . . micah . . vives , iib. . de concordia , &c. discordia . lib. . bibliothec . d. siculus bibliothec . lib. . in vita iphicratis . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . antiphon apud stobaeum , serm. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . stob loc . praecit . psal. ● . . philo lib. de confus . iohn . . linguarum , p. . iohn . . iohn . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . olympias apud stobaeum , serum . . prov. . . so psal. . . jer. . . job . . dulcis veritas in interiorem melodiam . sanctus bernardus . in cont. matth . . in platina in vita julii . papae . platina in vita julii . o amor , quite appellem bonum an malum , dulcem an ama●um ; ita enini utroque plenus es , ut utrumque esso videaris . salvianus . lib. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 eurypid . in antigone . prov. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 theophrastus apud stobaeum , ser. . p. . cor. . . i joh. . . platina in act. . guallo , legat. temp . king john. holingshed , p. . p. , , ● . holingshed , p. . xiphil . in epitom . dionis . p. . edit . sylb. lib. . regularum . digest . lib. . tit. . pag. . . lib. . de cognitionibus . digest . loco praecitato . tholossanus . lib. . c. art . , , . p. . de testibus . digest . lib. . tit. . p. . b. rubr. digest . lib. . tit. . a. b. in marg. p. . digest . lib. . tit. . p. . gloss inimicus . ¶ lib. . tit. p. . ss . b. holingshed , p. . & seq . note this . cur enim ad arma & rixam procedere patiatur praetor , quos potest jurisdictione sua componere . julianus . digest . lib. . tit. . p. . in textu . c. opprimi aliquem per adversarti sui potentiam non oportet . digest . lib. . tit. . b. in text. tum propter ej●s fidelitatem & sapientiam , tum propter sui thesauri abundantiam . m. paris . in h. . ad annum . p. . in vita alexandri . par est probationi prasumptio quod quidem ad effectum attiner , quia probatione habetur . we senbechius . digest . lib. . tit. in marg. p. : lib. tit. . p. . f. presumptioni . gloss . lib. . tit. . p. . x. contrarium in gloss . digest . lib. . tit. . p. . in marg gloss . c. ● . lex legum . in prol , adelp a serm. satyr . . ovid epist. . ● aenead . plin. lib. . c. . cic. pro roscio amer. collatis signis exercitu amisso excisus est . sigonius in fast & trumph . rom. p. , . neque imperatori bono quicquam minus , quam temeritatem congrui●● satis celeriter fieri quicquid commode geratur , aurelius victor in augusto . matth. . . chap. . . mark . . luke . . quoniamque ut bona naeturâ appetimus , si● à malis natura deslinamus , quae declinatio sicum ratione siet , cautio appelletur eaque intelligatur in solo esse sapiente . cic. . tulcul . de oratore . prudens & qui sibi probus , & negotiis suis scit eavere . terenc . in . phorm . . . de regis & regni institutione . see stat. jacob. c. . qui testibus pecuniam dederit , ut falsum testimonium dicent , vel certè , quod setunt taceant , aut non exprimant venitatem , vel judici praemium dederent , ut sententia contra justitiam dicat vel non judicet ; humiliores capite puntantur , honestiores bonorum suorum amissione multentur . edict . theodori regis , c. . annexum cassiodor . p. . contra singulas objectiones it a luculenter , & argumentose respondens peroravit , ut omnibus admirationi & venerationi haberetur , ita ut nulla suspicio de his in quibus accusabatur , in cordibus audientium ulterius remaneret math. paris . in r. . p. . prudentis viri intellectus quorundam generosum animalium assimilatur , qui die tanquam caliginosi ac somnolenti dormirant , sed noctu acutissimè vident , hosti aggrediendo praedaque intenti . inter instructiones cardinal . montalti , p. . thesauri politici . d' avila , p. . pag. . pag. . pag. . d'avila , lib. . pag. of h. france . quanquam potestati nostrae deo faverte subjaceat omne quod volumus , voluntatem tamen nostrum de ratione metimur , ut illud majus existimemur elegisse , quod cunctos dignum est approbare . theodoric . epist. . ad eugenium cassiodor . variat . lib. . p. . the authors humble prayer to god. pagnin . in verbo . qui nihil aliud curant , quàm vitae huju , commoda , filii mundi appellantur . grotius in loc . sin● arbores infructuosae , ut quercus & ulmus & arbores silvestres aliae ; sed hujusmodi nemo plantat in borto suo , quia non faciunt fructum & si quem faciunt , non humano sed porcino usui aptus est . sanctus bernardus , serm. , de sancto benedicto . matth. . psal. . . psal. . . sanctus bernardus , serm. . in quadrages . eutropius in brevia●o , lib. . edit . sylb. p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . xiphilinus in epitom . dionis , p. . edit . sylburg . pet. . . john . . john . ● . ephes. . . colos. . . cum pene totus ipse mundus nox sit & totus semper versatur in tenebris , nox est judaica persidia , nox ignorantia paganorum , nox haeretica pravitas , nox catholicorum carnalis animalisve conversatio . sanctus bernardus ▪ serm. . in cantic . cantic . dan. . . o quanta amaritudine adveniens , liberasti adveniens bone iesu , &c. sanctus bernardus , serm. . in cantic . matth. . ● . gen. . . prov. . ephes. ▪ . cor. . . the church of england . . ethicor. nervus prudentiae est conjectura , quae futurum quod o●s●urum ●st prosp●tens , as●imilatur itineri , quod ●o●t●● aggredimur instructio ad cardinal . montaltum . thes. politic. p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sanctus basilius , homil . . in princip . prov. tom. . p. . commentar gr. lingua , p. . in rebus suis agendis , nam actiones hebraei vocent 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . grot. in locum . sanctus bonaventura in locum . ezek. . . zeph. . . see my discourse of the piety , policy , and charity , of elder times , and elder christians , printed anno . hypodigm . neustriae . p. . holingshed . in h. p. . the authors prayer . d'avila , p. . wild. . , , . facessat privat● amicitia dum publica agitantur negoti● . kings . . instrumentum erat diaboli accommodatissimum , & plus quam dict possit maliciosum , p. martyr . in reg. c. . rev. . . hic impia mulior prius vitiavi● dei cultum introducendo baalis idolatriam nunc●● tiam leges politica●●●ntaminat in republica ; 〈◊〉 duabus partibus corruptis , sani quid potest super●sse . per. martyr . in reg. c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . dictum athletae apud plutarchum , lib. de cu riositate , p. . my two dear wives , mary and elizabeth , buried and lying in st. m. magd. milkstreet , london ; to whose memory , i intend this a second and more durable monument . ravisius , de claris mulieribus . richardus dinothus , de rebus & factis mirabilibus , lib. . c. , , . fabianus justinianus . in indice universali . plutarchus , in lib. de mulierum virtutibus . p. . ¶ tarquinius superbus à tullia incitatn● , advocato senatu regnum paternum repeter● caepit . aurel. victor . de vir. illustri . p. . aug. script . (a) maritum suapte natura crudelem ad omne facinus procliviorem reddidit . cuspinianus . ea erat fervidis admodum asperisque moribus . jovius . de elisa matre . m. sfortiae , in vita sfortiae . scelerata castra , sueton in claudio . c. . vicus sceleratus aurel. victor . in tullia . p. . aug. script . et scelerato signatur nomine , quae proficiscentes in praelium portâ dimisit . florus , lib. . c. . messalinae quoquo amorem flagrantissimum non tam indignitate contumeliarum , quam periculi metu abjecit . cum adultero silio acquiri imperium credidesset . sueton. in claudio . c. . plutarchus . lib. de sole●●ia animalium p. . grotius in 〈◊〉 . lev. . . nam adversus insignis famae virum tres requiruntur . grotius in loc . posside vineam ] titulo consiscationis , quae apud hebraeos locum habebat in omnibus delictis adversus regiam majestatem . grot. in locum . luke . in greg. nazian . orat. . h. aerarium sub domitiano spoliarium cevium cruentarumque praedarum saevum receptaculum . plin. apud grotium , in c. . v. . reg. hunc historium judaei non plane negunt . grot. in loc . see the title of this book in our bibles . hi duo senatores multas mulieres hebraeas adulterassent susannae , etiam pudicitiam 〈◊〉 tas●ent . grot. in v , . hebraei nunquaem judicis brer● annales , aut birios ● sed poterant hi esse astessores ejus , qui crat 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . grot. in loc . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . hellen . spel. concil anno . christi , p. in symposi ac . philo , lib. . de vita mosis . temporibus saxonum vocabantur aldermanni , non propter aetatem , sed propter saep●entiam & dignitatem . inter ll. edvardi confess . c. . eccles. . . apud stobaeum , serm . sanctus basilius , apud eundem . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . evagrius apud stobaeum , serm. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sanctus chrysost. apud stobaeum , . in libelle , de moribus . adag . cent. . chil. . adag . . p. ● . tullius in caton . major . gen. . last . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . suidas in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . qui suasione plectenda matrimonia dividere nititur aliena , ipsius conjugium habeatur illicitum . edictum alathar . regis , lib. . c. . job . , . jer . . , . deprehendimus ipsam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ut est , joh. . . draco dixit , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , solon , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . pomponius , in ipsis rebus venereis . ulpianus in ipsaturpitudine . grot. in loc . v. . ¶ hist. h. . of france , grimst●n , . true chastity . spotswood history sco●l . p. . ver. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , dicitur falsus & iniquus testis , qui crimen fingit ad opprimendum alterum . grot. in loc . badwellus in loc . to. . crit. sacr. et deus quidem hanc suae legis observation●● ministris suis rependere volens , locuyletavit hos quatuor adolescentes multa rerum prudentia , atque intelligentia . ita , ut q●osvis . libros intelligerent , multaque sapienti praestaren● caeterum daniel is praecaeteris ha● praerogativ● claruit , atque insignis fuerit , quod omnium visionum ac som●orum intelligentiss . fuerit . tossarius , in c , . danielis . note this . gen. , . bradward in praefat. lib. de causa dei. & e. . c. . & p.m. c. ● . ezra . . jer. . . in the office for the nov. qu. elizabeth's day . the d prayer . isa . . the duke of albemarle . ¶ see the common's letter to the king. may . vers. . pagnin . in verbo . * ord. feb. . c. , & . o stupendious providence ! myrrhae virtu● est ut corpora imputribilia reddat . plin. lib. . c. . . no holy , humble , penitent spirit in the nation but from god. psal. . . ier. . . lib. de conversione ad clericos . c. . de sacerdote nihil mala aut foeda natura est temere presumendum . reg. can. spelman concil . p. . kings . . ; kings . . . matth. . ver. . ' o 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 concil . naeo ca●sar . sub sylv. tom. . c. . p. . synod . rom. tom. . parte . p. . tom. . par . secunda , p . tom. . par p. , , . & tom. . par . . fol. . concil . rom. . sub greg. . temp. martini . papae , tom. . concil . p. . a good memento to those that take orders in the ministry . esset autem sine dubio melius nubere , quam uri ; & salvari in numero fidelis populi , quam in cleri sublimitate & deterius vivere & destrictius judicari , cap. . de convers. ad clericos . ¶ epist. . (a) see a● rare wife arch b●shop parker● fuller church history , p. . luctuosa des●riptio carnaliter viventium sacerdo●um e. prospero , apud concil . general . tom. c. . p. . marriage upheld commendable in church-men . bract lib. . ●● . constit. siculae , lib. . tit . . spelm. gloss. p. episcopus wintoniensis in manu archiepise . gantuariensis coram episcopis affidavit tempore stephani regis , brompton . p. . brompton , p. . an vero gravior ullaphrenesis , quam impanit●ntia cordis & peccandi obstinata voluntas ; siquidem manus nepharias injicit sibiipsi . nec carnem , sed ment●m lacerat , & corrodit . sanctus bernardus capitul . de conversione ad clericos . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quod esset privata & occulta viro , hebraei . tom. . p. , tom. . parte secunda fol. . tom. . parte prima fol. , . concil . roman . sub greg. . anno . anno . inter canones aelfrici . canon . . spelman in conciliis : p. . synod . st. patricii , spelm. concil . p. . nota ad prov. afric . spelman , p. . p. . p. , p. . spelm. conc. . pag. , . spelman concil . p. . cook instit. p. . fox martyrol . p. , . plutarchut in conjugialibus praeceptis . lib. . distinct. . quaest . . de conjugio cleric . capite cum olim . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plutarchus in amator . p. . edit . paris . the late renowned bishop hall. dr. taylor temp. q. mary . tholossanus , syntag. iuris , lib. . c. . exhortation to the solemnization of matrimony . in matrimonio annulus arrba loco saepe daretur , ut vir atque uxor invicem se coemerunt . salmuth in pancirol . lib. . p. . grimston hist. h. p. . & seq . pag. . bonam conscien tiam , optimam fa mam , maximam authoritatem ▪ praterea familiam , uxorem , nepotes , sorores , interque totpignora veros amicos . plin. ep. de corellio rufo . fuller worthies of england , p. lilius gyraldus lib. de annis & mensibas , p. ● . parte secunda . ¶ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , idem codem loco . p. . parte prima syntag. . de nat. deotum . quod per cam ternionis numeri mysterium col●ret , eum quando numerum in sacris adhibendum putavit l. gyraldus in aenjgm . parte secunda p. . revel . . . . c. . v. . c. . v. . c. . v. . guevara horol . princ. p. . censuit justias fieri si inter perfectos christi quam si inter perfectos caesaris constitu●retur . sidonius lib. . c. . eccles. ● . . d. avila p. . pag. . pag. . note this . plutarchus lib. de animi tranquil . p. . crimen in hos ( vicarios christi reges ) commissum proximum sacrilegio est . ulpian . ad legem jul. majest . (a) tholossanus lib. . c. . & . non tautum actor sed & conscius adjutor , minister gladio puniatur . corvinus enchyrid . juris . p. . tholoss . lib. . syntagm . iuris universi . grimston in h. . decianus consult . . num . . corvinus instit. lib. . p. . inter leges canuti c. . si quis saluti regis aut domini sui insidias tetenderit , vita & rebus suis omnibus plectitor . inter l. canuti cap. . edit . twisd . bracton . lib. . fol. ● . britton . fol. . fleta lib. . c. . instit. p. , c. . glanvil . lib. . c. . l , . c. . * sir edward cook pleas crown , c. treason p. . sess. prima . . instit. chap. treasons p. . observe this well . in the preamble instit. pleas of the crown , chap. treason . tholossanus syntagm . juris lib. . instit. chap. treasons c. . dion . cass. lib. , p. . de mesio pompusiano . ecçe serenissimus dominus imperator fieri simiam leonem jussit ; & quidem provisione illius vocari potest , fieri autem leo non potest . sanctus gregor . in regest . lib. . ep. . d. avila . p. scobel's collections , part . fol. . . . . . reg. juris . eicon basilic . c. . in his advice to the then pr. of wales now our most gracious sovereign . iosh. . . seneca , ep. . illud pracipue salutem impedit quod cit● nobis placemus ; ideo mutari nolumus quia nos optimos ●sse credimus . senec. ●p . . m. antoninus edit . gatakeri , p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . loco praecitat . lib. . ep. . licèt cedrus alta & pulchra sit , nihilo praeterea candidior est illius carbo ; & licèt ilex humilis deformisque sit , nihilo propterca nigrior est illius cinis ; saepe deorum pormissu honoratiora sint ossa pauperis philosophi , qui vitam duriter egit quam principum qui delicatissime vixère . marc. anton. in epistola ad egelippum nepotem . certus sum . ei qui'in vit● nulli hominum male fecit in morte deos neutiquans malefacturos . cuev . in horol . princ. psal. . . psal. . . psal. . . psal. . . d. avila p. . psal. . . esay . . . prov. . . tortura quantitas & qualitas statuetur seoundum morum regionum . tholosl . syntag. juris universi , lib. , c. . ss . . at in gallia promiscuè omnes cujuscunque dignitatis & nobilitatis fuerint cum luculentioribus delicti indiciis torquentur si indic●a duorum idoneorum testium fide constent . imbertus lib. . instit . tholoff . lib. . lib. . ss , . idem eodem loco ff . . ad sinem . fatetur facinus qui judicium fugit . reg. juris . ( a ) reg. juris . de oratore . syntagm juris universi , lib. . c. . ff . . lib. . ad edict . text. digest . lib. . tit. . p. . ( a ) lib. . tit. . p. . reuss ] gloss. instit. c. . of conspiracy . neque pertinaces , neque nimium timidi unquam , vel vix verum fateantur . tholoss . lib. . c , . ff . . polyaenus lib . valer. max. lib. . c. . egnatius lib. . c. . val. lib. . c. . polyaenus lib. . fulgosus lib. . c. . pontanus lib. . c. . de fonitud . domestica . serres in life h. . lib. . fol. , & . cook pleas of the cro●n p. . . syntagm . juris universi lib. . c. . ss . . fox acts and monuments . p. , , . sir edward cook instit. p. . chap. . institutes chap. . of executions and iudgments . tholoff . syntag. juris . lib. . c. . ff . . omnino omnium horum vitiorum , aetque incommodorum una cautio est , atque una pro visio ; ut ne nimis cito deligere incipiamus , neve von dignos . ad attic lib. . . . hic tribunus plebis , modestus , prudens , non modo non seditiosus , sed & seditiosts adversarius ; ille antem a●erbus , criminosus , popularis homo 〈◊〉 turbulentus . cic. pro cluentio . . a. gellius . lib. . c. . & . fullet's church history part . p. ● . tormenta fine presumptions non sunt instigenda . gratian. decret . secunda parte . caus. . qu. . c. . in criminibus serutandes quastio adhiberi solet . tholoss . lib. . tit. ● . de quaetionibus . art. . gen. . . crimen , falsa suspicio . donatus in virgil. aen. * nullum tormentum conscientia majus est , illa incellumi hac externa despicite , intra te est consolator tuus . petrarcha in dialog . . de tormentis . tunc demum ad torturam deveniendum est . cum suspectus e● rens , & cum multis argumentis urgetur . f. pegna schol. ● . in tertiam partem directorii inquisit . lib. . p. ● . edit . eimerici . impress . romae , . pensieri stretti & il viso sciolto . sir henry wotton's elements architecture . p. . of his works . eadem scolera in diversis provinciis gravius plectuntur , et in africa nessium incensores , in mysia vitium . ulpianus apud digest . lib. . c. . text. guido de suzaria . tract , de tortuza cum notis bolognini . p. pettae de castro . tract . de tonuris . fr. pegna schol. . in tertiam pa●tem directorii . inqulsit . lib. . p. . authore eymerico , impres . romae an. . pldem eodem loco . . , . gratian. decret . parte secunda causa . c. . gloss . . p. . pegna loco praecitato . dicam quod sentio , hactractatio de novis tormentis excogitandis ; carnisicum est potius crudelium quam iureconsultorum & theologorum . loco pracitato . selden notes on hengham . p. . . hengham parva , c. . p . ame fastidit a●●●● ovid. 〈◊〉 alium , si in his fastidit alexis . virgil. in bucol . serres in his life . paulus aemilius in vita philippi pulchri . shutes hist. venice . p. . haec etiam in equuleum conjiciuntur , quo vita non aspirat beata . s. tuscul. . al. ab alexand. lib. . c. . lib. . c. , . galen . lib. de motu musculorum , ad initium . lib. . de elementis . lib. . de usu partium . alex. ab . alex. b. . c , hollingshed in r. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 aramentum est quo ora filentinm ●bturantur & laxantur cum opus est . budoeus in pandect . p. . edit . basil. . . * tit. . . vitruvius lib. . c. . de hydraulicis organis . deut. . . vulnus , pete , non dolet quod ego feci , sed quod iu fecists . nible livia . dion . cass. lib. . in august . caesar. speed. p. . membrana charta pergamena ● pellibus animantium concinnata . plin. lib. . c. . last st. john. last verse . lib. . c. . digest . lib. . de poenis . tormentum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ‑ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , non recti , seu curvi & inflexi etymologiste . m. paris . p. , . gloss. in verbo . porphyrius apud holstenium , lib. de scriptis porph. c. . p. . olim regibus parebant , nunc per principes factionibus & studiis trahuntur ; nec aliud adversus validissimas gentes pro nobis utilius , quam quod in communi non confulun● . in vita agricola . this prayer becomes every true english subject . isay . . psal. . . fulgosius lib. . c. . egnat . lib. . c. . temps . h. . speed. p. . speed. p. ● . iudex seculi plus deferet clerico continentu quam diviti , & magis sanctitatem tuam venerabitur quam opes . sanctus hieronimus epist. ad heliodorum . de vita solitaria . nihil christiano felicius , cui promittitur regnum coelorum , nihil laboriosius que quotidie do vita periclitatur , nihil fortius qui vincis diabolum , nibil imbecillius que á carne superatur . sanctus hieronymus . epist , ad rusticum . iob. . . fuller's church history , . part . p. . shutes history of venice . p. . gen. . . heb. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sophocles apud stobaeum , serm . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , aeschil . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . philo lib. de praemiis , & poenis p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sophocles . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . stobaeus serm . . p. . ea victoria habet glorians placendi deo & praedam vivendi in aternum . tertullian . in apologet. c. . de martyrio . cur non ( bone jesu ) ducis sponsam tuam in hortum tuum . serm. in cantic . cantic . nos dolendi magis qui quotidie stamus in praelio peccatorum , vitiis sordidamur accipimus vulnera , & de ocioso verbo reddituri sumus rationem . in epist . ad theodoram . joseph , lib. . c. . sabellic . lib. . c. . cuspinianus in vita theophili . vae illis quibus praeparatur dolor vormium , ardor flammae , sitis sine e●inctu , &c. epist. . ad julianum . psal. . . poela tres furias dixerunt qua mentes hominum exagitant , ira ultionem desiderat , cupiditates opes , libido voluptates . lactantius , de vero cultu . lib. . c. . lib. . de natur. deorum : orat. pro roscio . pro sestio . i● nerone . iudges . . king. . . ier. . . ier. . ● . ¶ resolut . of the judges in felton's case . difficile immo & impossibile est , ut & praesentibus quis & futuris fruatur bonts , ut & hic ventrem & ibi mentem impleat , ut de deliciis transeat ad delicias , ut in● utroque saeculo primus sit , ut & in coelo & in terra appareat gloriosus . sanctus hieron . epist. ad julianum . tholoss . syn. tagm . juris . lib. . c. , . & seq . idem c. . zachar. . . shute's hist. of venice . p. . si ego latens in caverna & quasi sub modio non quidem lucens sed fumigans ventorum quidens impetus , nec sic declinare sufficio , sed continuis tentationum variisque fatigatus impulsibus instar vento agitatae arundinis huc illucque circumferor ; quid positus supra montem , supra candelabrum . sanct. bernardus , epist. . ad archiepis . senonensem . see my discourse of arms and armory printed march. . pro cluentio . nobilitas nihil aliud est quam cognita virtus . cic. epist. ad herennium . pro m. caelio . syntag. juris . lib. . de accusationsbus . speed. p. . lib. . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. philo lib. de specialibus legibus , p. . shute's history venice . p. . tag . . cressolius mystag . p. . articulus pro momento & tempestiva rerum faciendarum hora sive puncto , seu alienjus rei aut temporis particula . etymolog . cic. pro quinctio . . cic. ad attic. lib. . horat. . epist. serm. in caena domini . magdeb. cent. . c. . p. . innocens dicitur , non qui nocet leviter , sed qui uihil nocet . tusc. quest. exasmus in adagiis . chil. . cent. . adag . ego te . semper simon , plurimi feci , & tu , simon , dormis . ego te tot modis honestavi , & tu dormis , &c. diserrissimus , & strenuissimus morus equ . aurat . in exposit. passion . inter opera impress . lovanii , anno . p. . b. in commentariis pass . impress . lovanii , anne . p. . congratulor quidem tibi quid sis exoneratus , sed vereor nè deus à té quantum in te exhenoratus sit . epist. . spotswood history of scotland . p. . history venice . p. . servius in voce patris , in . georgic . . de poena patricidii , lege turneb . advers . lib. . c. . edit . basil. spotswood . p. , . stow's chronicle summ. p. . . shute , p. . quam misera hominis conditio quae quasi mercenaria aliis laborat , sibi indiget , & nisi aliena misericordia sustineri nequit , quotidie sub timidine sub timore gravem tolerans servitutem , &c. sanctus ambrosius , lib. de interpell . c. . spotswood hist. church scotland . p. . shute's history , p. . . non exhibemns ullum gestam honorisicum coram statua obstante decalogi praecepto seeundo . grot. in locum , acts . . viri chaldaei accusaverunt judaeos ] invidentes judaeis , & ad eos opprin●ndos aut suasores hujus edicti aut na●a occasionis seduli aucupes . grot. in locum . deut. . . lev. . . ier. . . poena non infrequens apud chaldaeos . grot. in locum . ex ipso eventu statim liquebit non sine arcano dei impulsu hoc totum suisse factum galvinus in locum . matth. . . dan. . v. . matth. . . vers. . psal. . ● . satyr . . adelp . offic. * bishop brumrigg , late l. bishop of exon. see my venerable friend , the eminently , storid , generous , painfull , and pious doctour gauden , late l. bishop of worchester , his memorials of him . p. ● . speed. p. . holingshed . p. . holingshed . p. . tu , inquit , testis domino jesu , cui occultum nihil est , qui scrutator renis & cordis ; non ideo me negare velle , ne peream ; sed ideo mentiri nolle , ne peccem . sanctus hieronym . ad innocentium . l. archb. laud. in his epistle to king james in answer to fisher the iesuite . iudges . . shute's history venice . p. . view of the civil and eccles. law. p. , , , . mirentur alit signa quae fecit , mirentur incredibilem abstinentiam , scientiam , humilitatem , ego nihil it a stupeo , quam gloriam illam & honorem calcare to nisse . sanctns hieronym . de hylarione . athenaeus deipnosoph . lib. . c. . caelius rhodigin . antiq lib. . c. . laertius lib. . in vita diog●n , cic. lib. . tuscul . sabellic . enn●ad . . ¶ strabo lib. . lib. . de trad. discipl . in platea universali discurs . . ad finem to. . operum . (a) see my apologie for learning and learned men . printed anno . (b) strongly pressed in the commons house that vniversity lands might be sold and the colledges discolledged . (c) this was my message with the apologie sent to d.c. by doctor bernard , who honestly delivered it in my words . shute's history venice . p. . quoad corpus miserabiliter i consumptum mortem lentius admitteret . sabel . lib. . cap. . pontanus lib. ● . de immanitate . fulgosus lib. . cap. . cael. rhodig . lib. . cap. . tormenta quaestionum ac poenas parricidaerum coram aspiciens , glad●atoriisque ac bestiariis spoctaculis plurimum delectatus . sueton. in claudio . hosea . . vers. , . sam. . . revel . . tholossan . syntagm . juris . lib . c. ●● . sunt enim exosi vel natura ipsa humana hujusmod● homines . fornerius ad legem . p. . (a) tuscul. . shutes history of venice . p. . sueton. in vespas . si quo casu rupta fuerant navigia , vel aliter ad terram pervenerant , tam navigia quam navigantium bona , illis integre reserventur ad quos specta●ant . titul . de statu & immunitate locorum religiosorum . dyonisius areopag . d● coelesti hierarchia , c. . p. . edit . paris . anno . (a) investigatio peripatetica . (b) in militia christiana . lege boissardum lib. de devinatione . in plotin . lib . ennead . . p. ● . plutarchus lib. . de plac . philosoph . cap. . lib. . civit. dei. c. . saint thomas on t of apuleius defines these to be corpora aerea , animo passiva , mente rationalia , tempore aeterna , part . . qu. . . prim . & qu. . . plotinus ennead . . lib. . p. . porphyr . lib. . d● abstinentia , c. . p. ● . edit . holstenii . apolog. c. . lib. . c. . sunt enim carnifices & lictores in hac dei republ. improbi damones vilissimo ministerio addicti in poenam antiqui sceleris . p. mirandula in heptap . lib. . c. ultim . p. . lib. . de abstinent . ● . . p. . non naturaliter mali daemones sed propria voluntate aqu. parte prima qu. art . . lib. . c. . d● civit. dei. iuvante deo , hoc est , favente angelo impulsore , suasoreqúe ● egregia gesta , admirandaque visu . phavorinus , de excel . homin●s . part● prima , c. . p. . fuller's holy warr. pag. . * daemones esse credendum estnocendi cupidissimos , à justitia penitus alienos . superbia tumidos , invidentia lividos , fallacia callidos , qui in hoc quidem aere habitant quia de coeli s●perior●s sublimitaete dejecti merito irregressi●ilis transgressionis in hoc sili congruo velut carcere perdamnati sunt . lib. . de civit. dei , c. ● . ¶ matth. . . daemon est caput omnium malorum , non insluxu interiori , sed gubernatione exteriort , in quantum avertuntur à deo. sanctus thomas part . . qu. . art . . tentare ad nocendum est proprium daemonum , sed mundus & ●aro tentant instrumentaliter . sanct. thom. part . . & qu. . art . . volum . . ad annum christi . p. . de nomine purgatorii . (a) centiloqui parte secunda sect . p. . tom. . (b) volum . . in cor. c. . p. . (c) lib. . dist. . qu. . resp . ad . (d) in supplem . quaest . . art . in conclusione . (e) par●e quarta quaest . . de sacram. paenitentiae . (f) partis primae de universo pars prima . c. , , . p. . impr. venetiis . cent. magdeb. cent. . p. . chemnitius in historia purgatorii . parte prima , examinis concil , tridentini , p. . &c. tom. . isaiah . . matth. . . vers. . cent. magdeb . lib. . c. . p. . magdeb. cent. . c. . p. . cent. . c. . p. . cent. . c. . p. . cent. . c. . p . cent. . c. . p. . cent. . c. . p. . cent. . c. . p. . defence of the apologie of the church of england , p. . part . . habent omnes anima cum de●saeculo , oxierint diversas receptiones suas , babent gaudium boni & mali tormenta , sed cum facta fuerit resurrectio , & bonorum gaudium amplius erit , & malorum tormenta graviora , quando cum corpore torquebuntur . sanct. aug. tract . . in johannem , lege lib. ● . de civirate dei , c. . ' h 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sentent . col . . p. . edit . cantabrigiae , . lib. de excellentia hominis , c. , , . aureolus in sent. dist. . p. . alex. alensis . qu. . art . . p. . sanctus augustin . c. . lib. de praedestinat . & gratia . lib. . hyponostic . nunquam nos verecundiores esse debere , quam cum de diis agitur , si intramus templa compositi , si ad sacrificia accessuri vultum submittimus togam adducimus , si in omne argumentum modestiae fingimur quanto hoc magis facere debomus cum de syderibus de stellis d● deorum natura disputamus . nat. quaest. lib. . c. . his majesties late letter to the lord arch-bishop of canterbury , to be sent into every diocess . exercit. ● , sect . . epigram . lib. . c. . malignus ager agricoli illiberalis & minus ferax . nonius . plinius ep. . f lib. . a spiritu sancto satan vocatur adversarius , angeli vero vocantur silii dei , quo significatur angelos sponte obtemperare & ultro servire , satanam vero invite & coacte . calvinus . iob. . . tostatus in l●● , quaest. . deus permittet mala fieri ad ostentionem potentia divina vel sapientia vel benignitatis vel justitia . a. halensis , par● . . qu. . numb . . art . . quaest. . in locum . chron. . . iob. . zach. . . . luk. . . ier. . . etiam ab exemplis malorum sacerdorum vitiorum labes fuit dimanant in populum quandoque minus ii idouci sunt ad impetraudam gratiam ad quos vigilandi & orandi populo spectat officium ranto in mirum magis opus habet populus ut vigilet , sargat & impensius oret , ipse pro se , nec pro se tantum , s●d & pro presbyteris ejusmodi . tho morus equ . in euposition● passionis , p. . impress . lovan . . matth. . . huic prorsus mulieri cuncta alia fuerunt prater honestrum animum , opes splendori generis sufficiebant , sermo comis , nec absurdum ingenium , erat prudens , magnifica , liberalis , sed & lasciva . aeneas vicus , invita ejus . matt. . . c. . v. . & . sam. . , , , , &c. ad impietdtem perinde valet unum obulum conferre ac si omnia conferas . kings . . neh. . . sam. . . king. . . shute's history of venice . p. . in ruder . cic. . verr . . idem in fato . in his chapter of god's punishments upon persecutors and contemnors of the gospel p , , , . non delectatum esse cum iure illo acro . cic. . tuscul. respiciendum est judicanti ne quid ant durius ant remissius constituetur , quam causa deposcit , nec enim aut severitatis ant clementia gloria affectanda est sed propenso judicio prout quaqn● res expostulat statuend●●m . bractonus , lib. . c. . fox . act. & monuments . p. . fox . acts & monuments . p. . scutum reliquissa praecipuum flagitium , nec ant sacris adesse aut concilium inire ignominioso fas . tacit. do morib . germanor . acts & monuments . p. . anno . dinothus lib. ● . de bello civili , p. , . shute's history of venice . p. . dinothus lib. . de bello belgico civili . p. . inventa sunt pacta & conventiones ut alium obligemus ad dandum vel faciendum quippiam . tholossan . lib. . c. . . lib. . c. . p. . bracton lib. . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . aerius medicus apud lipsium . de militia romana , lib. . p. . bracton lib. . de actionibus . c. . non valet donatio nisi tam dantis quam acciptentis concurrat mutuus consensus & voluntas unda enim donatio & pactio non obligant , nec faciunt aliquem jure debitorem . idem lib. . c. . lib. . c. . voluntas & propositum distingunt malesicia . bracton li. c. . bracton lib. . c. . p. . quod talem pravo ingenio censebant & factum ad peccandum fortasse , & contumacia iis visa punienda , & quod quasi per contemptum ludibriumque legis peccares . lib. . de milit. rom. p. . quia affectio●●sa nomen imponit operi tuo , & crimen non contrahitur nisi nocendi voluntas intercedas , nec furtum committitur nisi ex affectu furandi . bracton . lib. . cap. . shute's history of venice . p. . syntagm . juris universi . lib. . de injur●is & con. haereditas est successio in universum jus quod defunctus antecessor habuit ex quacuoque causa acquisitionis vel successionis eum seisina sua sine , &c. lib. . c. . p. . tholoss . syntag. juris lib. . c. . tholoss . syntag. juris . de acquienda vel amitrenda haeredit . lib. . ●pandect . selden's notes on cap. . tholoss . syntag. juris universi . lib. . c. . & e. . c. . sir ed. cook on little on p. . may . scobels collect. c. . p. . the authors prayer . shyre quasi share vowel . descrip. britt . part . . p. . totius anglia pagos & provincias in comitatus primus omnium commutavit . ingulphus . gloss ad vocem comes . cambden division of britain . ¶ h. . c. . & e. ● . c. . cambden's britannia . division of britain . p. . vowel . descrip. brit. p. . instit. on littleton . p. . * cook on littleton . p. . ● . glossar . in verbo ballivus . instit. on littleton . p. . ● . . b. vowel's . . part . description of england . c. . inter ll. sancti edw. c. . de hundredis & wapentachiis . p. . edit . twisd . mr. selden's notes on the text. p. . fleta lib. . c. . lib. . c. . ¶ nescío an medietas , magni habeniur , qui vel . vel . numerant , &c. gloss. in verbo . . see stat. . h. . c. . carol. c. . brompton chron. p. . edit . london . fleta lib. . c. . ¶ notes on this chapter . hoveden . annal. parte posteri . p. . sumner in gloss ad verbum wapentake . inter leg. conq. p. . de hundredis & wapentachiis . edit . twisd . on this chapter . ss . . charta conq. abbat . de bello . in comit. sussex . de gestis pontific . lib. . p. . lib. de morte claudii . cook. instit. upon littleton . p. . b. selden notes p. . dyer . fol. . gloss p. . gloss p. . dentr . . deus est unus & maxime unus , sanct. thom. part. qu. . art . & . deus est unus secundum quod unum convertitur cum ents , non autem quod unum est principium numeri . idem eodem loco . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , eusebius orat. de laudibus constant. tom. p. . casus in sphara civit. p. . cook upon littleton , part. p. . stat. lincoln ed. . h. . c. . (a) r. . c. . ed. . ed. . c. . ed. . c. . tholossan . lib. . c. . nunc pocunia judices tribuunt , plin. lib. . c. . longa pax militem incuriosius legit , veget de milit . rom. lib. . quotiescunque & aliquis militia crediderat offerendum p●atim , de natalibus ipsius & de omnis vita conditione examen habeatur , & ad militiam nullus adspiceret nisi quem penitus liberum aut genere aut vita conditione inquisitio tam causa depreheuderit , lib. . cod. theodos. tit. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . hallicarnass , lib. . cook on littleton , p. . ex limitaveis ducibus comites ordinis primi creavit constantinas , comites à principis comitatu , quod ipsum soleant comitari . pancirol in notitia imperii , p. . c. . plin. epist. . lib. . c. . epist. . lib. . sueton in nerone , c. . inter optimas lectissimorum militum turmas neminem è numero serverum dandum esse decernimus , neve ex caupona ductum , vel ex famosarum ministris tabernarum , aut ex coquorum aut pistorum numero , vel etiam eo quem obsequii deformitas militia secernit , nec tracta de ergastulis nomina . cod. theodos. tit. . (*) albergatus in thesaur . politis . relat. de stain reg. suecia , p. . lipsius lib. . de milit. rom. p. . cook on c. . magna charta . pag. . instit. part. speech . p. institutes of the juridisdiction of courts sir rob. forster . chief justices . sir orland bridgman . chief justices . sir hales . chief baron . fleta lib. . c. , . in epist petro aegidio , inter opera mori , impr. lovan ii . . e. . c. . e. . c. ● rastal statutes larg . ioshuah . c. . . administrationem eorum ( regnorum angliae & galliae ) duntaxat mecum duco . jus vero fructumque as proprietatem omnium vestrum haud dubiè publicam , qaem ego animum quo dic habere desiero precor u● superi mihi hoc regnum , nec vestrum modo , sed vitam quoque ipsam ut indignam qua retineatur , abripiant . hist. r. . per tho. morum . equ . aur. p. . edit . lovanii , anno . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plutarch . quaest. rom. p. . macrob. . saturnal . c. . capito in gloss. isidor . de originib . p. . (a) in hortensio . brechaeus ad legem . lib. de verborum signific . p. ● ¶ lib. de autro nymph . p. . edit . holst . isid. de orig. p. . plutarchus in quaestionibus romanis . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plutarch . libro praecitato , & post illum . alciat . de verboram signific . in legem . p. . id licere dicimus quod cuique conceditur . cic. . tuscul. h. , rast. peccaere nemini sicet . cic. . tuscul. . . h. . c . r. . c. . e. . c. . h. . c. . erasm , in adag . chil. . cent. . adag . . note well . religiosum est quod propter sanctitatem aliquam remotum ac sepositu● à nobis est , verbum à relinquendo dictum . massur . sabi●us apud aul. gell. lib. . c. . & . indignus quippe solenni laetitiae est qui states tum vigiliae abstinentia non observat , sce●● in vigil . s. andreae . petrus victorius , lib. . var lectionum c. . ex aeschylo in agamemnone . serm. de fecto omnium sanctorum . bios 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . stobaeus serm. de avaritia . lib. . syntagm iuris , c. . (a) ord. . c. . scobels collect. glossarum ad m. paris . in verbo hokeday . fleta , lib. . c. . . iinstt . chapter exchequer . & instit. p. b. ex ochamo , p. . h. . c. . e. . c. . e. . c. . e. . c. . e. . c. . qui propter prndentiae opinionem ad concilia principium suggerenda destinantur . alberg . thesaur . polit. c. . p. . h. . c. . e. . c. ● . eliz. c. . eliz. c. . ● eliz. c. . eliz. c. . cook . rep. de re eccles. see the act of parliament for their restitution . ed. ● . c. . (a) lib. ● . c. . & . ed. . c. . veter . m. charta part . . p. . b. iohn . . lib. de animae procreat . e. timaeo . p. . lillius gyrald . in aenigmat . p. . philo lib. de profugis . erasm. adag . chil. . cent. . adag . . chil. . cent. . adag . . in my defence of arms and armory . e. ● . stat. of sheriffs . e. . c. . e. . c. . e. . c. . r. . c. . instit. p. . columell . lib. . ep. . epists . cic pro muraena . cic. in orator . . hane dispositionem amaenitatemque tectorum late longeque praecedit . hyppodromus . plin. lib. . ep . . h. . c. . momentis quaedam grata & ingrata sunt , senec. de beneficiu . c. . lib. . instit. orat. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . de carminibus homeri . cic. de petit . consul . . (a) lib. . cic. . de invent. . officium cancellarii est regis sigillum custodire . fleta lib. . c. . sigillum tantam probet authoritatem literis quantum vult is qui auctoritatem concedere potest , & proinde si persona sit publica , publica erit ejus sigilli consignatio , tholossan . lib. . cap. . sect. . stat. ed. . c. . plowden , fol. . dyer , fol. . . . b. hanes case . rep. fol. . pages case , rep. p. . b. matth. v. , , , , . syntagm . juris universi . lib. . per totum . et lib. . c. . & multis aliis locis . lib. . de tribus sectis iudaeorum . tit. de form. jurandi . erasm. adag . chil. . cent. . adag . . matth. . vet. m. charta . part . . p. . cook on cap. . m. charta . p. . deus plus delectatur adverbiis quam verbis . loco pracitate p. . on stat. westm. . in his preface to the report . consestatione facta & statu causae composito prosecedendum est ad probationes . tholoss . lib. . c. . matth. . . gen. . . gal. . . propter curam locum quoque quo quisque domum senator confert curiam appellat , lib . de vita pop. rom. in aul. preface to the report . cook on littleton . p. . cook on littleton . sect . . on littleton , p. . & e. . c. & p. & m.c. . eliz. c. . tholoss . syntagm iur's , lib. . c. . sect. . vt in cubiculo haberet breves & numerum & texapora militantium , lamprid. in alexand . (a) flavius vopis . in aureliano , budaeus in pandect . p. . edit . basil. a. . (b) tholoss . lib. . c. . sect. . (c) breve quidem cum sit formatum ad similitudinem regula iuris quia breviter & paucis verbis intentionem pr●fer●ntis exponit & explanat . bracton lib. . fol. . fleta , lib. . c. . institut . p. . cook instit. p. pag. . idem loco pracitat● . sir ed. cook. sect. ● . in littleton . cum dua cognationes inter se divisae per nuptias copulantur & altera ad alterius si us accedit , inde decitur affinis , j. cti . note this . instit. p. . budaeus in pandect . epist. ad attic. lib. ● . tholoss . syntag. juris lib. . c. . ss . . decretum recognoscere . cic. pro balbo . palam adempto aquo quibus aut probri aliquid aut ignominia inesset . c. . cook. . instit. on littl. p. . b. sir ed. cook sect . in p. . littleton . a thess. . . (b) heb. . . cum in minimo imperium contenmitur ex omni parte violatur . regul . legitimam summonitionem recipere in propria persona uli●unque inventus fu●rit in comitatu , in quo fuerat res petita , qui quidem si non inveniatur , sufficit , si ad domicilium fiat , dum ●amen alicui de familia manifeste fucrit rela●a . bracton . lib. . p. . sir ed. cook. ● sect . . on litt. spotswood hist. scotland p. . sect. . heb. , deut. . de officio coronatoris . apud nos corona officialis pervetustus est ad tuendam pacem & dignitatem regiam , universis praest capitalis iustitiarius baci regis qui & ideo summus angliae coronator habitus est . spelman in gloss p. . regist. fol. . cap. . p. . . instit. a lib. . c. . clerici olim fuerunt legales & brevia dictitarunt , scribebant , signabant , m. patis . p. . addit . p. . gloss , ad m. paris . in verbo clerici . solus omnino est quisine amico est . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 euripides in heracl . a mark. . . on stat. westmin . c. p. . instit. zuniger in theatro v. humana , p. . lib. . c. . anthrop . fulgosus lib. . c. . fulgosus lib. . c. . propter quam rem alsentes ambos pop. romanus adiles creavit . idem codem loco . garimbertus lib. . de vitis pontific . syntagm . juris universi , lib. . c. . non cogi possunt contra proximos & affines qui proximi yunt testari , lib. , c. . ff . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . erasm. adag . cent. . chil. . adag . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plut. lib. de adulat . & amici discrim . p. . edit . paris . alexand. ab alexand. lib. . cap. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . adag . . chil. . cent. . maluit consulatu cadere quam amicum perdere . plutarch , in apothegm . rom. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , & . plutarch in amator . p. , edit . paris . valer. lib. . c. . tanquam quae in administratione civitatis rectum ac justum institutum emolliat , & transversum agat , partis secunda , sermo . . pag. , , , . i instit. on littleton . eliz. c. . non observata forma infertur adnullatio actus . reg. juris . adag . cent , chil. . a h. . c. . statute the second . ● e. . stat. de his qui ponondi sunt in assisits . * vorvel's description of england , p. . rust. stat. larg . h. . c. . h. . c. . assisa panis h. . confirmed by e. . c. . & h. . . note well . vbicumque est aliquid principium oportes . quod sit aliquis ordo , quia ordo includit in se modum prioris & posteriorii s. thom. . . quest . . art . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plutarchus , lib. . sympos . quoest. . p. . tune mala consilia agitaniur , tune aut aliis aut ipsis futura pericula struunt , tunc cupiditates improbas ordinant , tunc quidquid aut metu aut pudore celabat animus expromit senec. epist. . ( a ) lib. de mundi opificio , p. . lib. . select . antiq . juris . c. . constat foelicem esse rempublicam quae multis civibus resplendet ornata , nam suut coelum stellis redditur clarum , sis relucent urbes lumine dignitatum , non quia fiat home alter honoribus , sed quia modestior efficitur à que conversationis ordo melior postulatur . theodorick apud cassiodor . varr. lib. . formoe illust. vacaniis . p. . syntag. iuris universi . lib. , c. . cook on littleton , p. . b. an ordinance for enquests . . e. . . anno dom. . stat. de his qui ponendi sunt in assisis , anno . a mariae c. . & p. & mary , c. e. . c. & e. . c. . (b) counterfeiting lushburgh . discretio est discernere per logem justum . reg. juris . dr. & student . c. . eccles. . . shure's history of venice , p. . page . . cum pecunia egores multa contra dignitatem feci● . aurel. victor . lib. de viris illustribus . * h. . c. . confirm by & . c. & p & mary , c. . drusius , lib. de tribus sectis judzorum . pro quintio . aulus gellius , lib. . c. . lib. . c. . posideo à potis vel porro sedeo ; possessiones sunt agri late patentis publici privatique quos initio no● manucaptione sed quisque ut potuit occupavit atque possidet . isidor . o. rig . lib. . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 adag . . cent. . chil. . page car non cedam huic qui triginta habet legiones . saballicus tom. . ennead . . lib. . adag . . chil. . gent. . p. . memoriae traditum est . fere annos post roman conditam nullas rei uxoria neque actiones cautiones in urbe roma aut in latio fuisse , a. gellius , lib. . c. . dum his omnibus imperare scio non opus est pecunia vestra . vivere diseas moribus praeteritis , l●qui verbis praesentibus , a. gellius lib. . c. . erasm. chll. . cent. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . adag . . chil. . cent. . shutes hist. venice . p. . spotiswood , p. . tholossanus syntag . iuris , lib. . c. . de accusatione solenni . a lib. . c. ● . quia per scriptum vecurdatur , quid factum . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . prov. graec. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . epictetus , lib. . c. . lib. . c. . quamdiu videbatur furere democritus vix recipit socratem fama . quamdiu catonem civitas ignoravit , respuit , nec intellexit , dum perdidit . ep. . homo virtuti simillimus & per omnia ingenio diis quam hominibus propior , qui nunquam recte fecit ut facere videretur , sed quia aliter non poterat . patercul . lib. . adeo negligitur oratoria ab horum temporum dyscolis ut in actionibus eorum faex quo que quotidiani sermonis fada ac pudenda vitia deprehenduntur ut ignorent leges , non teneant senatus consulta , ius civitatis ultro derideant , sapientia vero studium & praecepta prudentium penitus reformident . quintill . dialog . de oratore , p. ● . pancirol in notitia . shutes history of venice , p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . diogen . in apothegmat . quid facias in is●o suffragiorum impiorum astuarto deprehensus , dubitas enim illo in momento quo in diaboli ecclesia fueris , omnes angelos prospicere de coelo & singulos donotare , tertullianus lib. de spectacul . c. ● . zeph. . chron. c. . v. . zach. . v. . numb . . . zeph. . . isai. . . psal. . . pet. . v. . terent. and. . . ● . . de nat. deor. . lib. . ab urbe , lib. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . adag . . chil. . cent. . tempori cedere , id est , necessitati pare●e semper saptentis habitum est . cic. . epist. famil . * cic. pro balbo . certe in christiana philosophia non decere nifi quod licet , nec expedire nifi quod & decet & licet , lib. . de consider . potest aliquid licere & non expedire , expedire autem quod non licet non potest . s. aug. de adult . conjug . c. . vt qui sub vexillo consedebant pugnare debent . adag . chil. . cent. . adag . . lib. de tranquil . c. . serm. . hoc calciamentum consuit histiaeus aristagoras induit . chil. . cent . adag . ed. . term. paschae . cook . instit. p. . dr. & student . c. . fleta lib. . c. . de veredicto juratorum . note this . . h. . c. . e. . c. . instit. p. . , &c. attinctos quasi victos . spelman . gloss. p. . cic. pro caelio ▪ attincta & attinctura pro istius modi reatus manifestatione & haereditaria successionis quae per eam sublata est coinquinatione . spelm. gloss. p. . idem eodem loco . p. . b. glanvil . lib. . c. . gen. . . gen. . . . psal. . . fleta lib. . . &c. . antiquit. lib. . c. . sabellicus lib. . ennead . . adag . centur. . chil. . adag . . alex. ab alexand. lib. . c. . cic. in verrem . liv. lib. . belli punici caelius lib. . c. . alex. ab alex. lib. . c. . caelius rhodig . lib. . c. . diod. sicul. p. . edit . hanoriae . syntagm . juris universi . lib. . c. . digest . lib. . tit . . c. nam perjurii poena in marg. p. . lib. . tit . . p. . d. in marg. (a) lib. . ad edict . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lib. de decalogo . p. . eliz. c. . sacramenta militaria apud romanos . sueton in caligula . turnebus advers . lib. . c. . instit. c. . p. . (a) deut. . . lib. . tract . . c. . p. . homieida perjurus & adulter ni ocyus ad se redierint & compensarint una cum his flagitiosis sceleribus patria exterminantur . inter l. canuti . c. . p. . . edit . twisd . (a) p. . c . (b) p. . lib. tract . . c. . p. . lib. . c. . dyer fol. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . adag . . chil. . cent. . adag . . chil. . cent. . chil. . cent. . adag . . revel . . ephes. . . rom. . . psal. . . amos. . . psal. . . cic. . tuscal . . pavidus formididine p●na virgil. horribiles formidines ex ignorationè rerum existunt , cic. . de finibus . isa. . . lib. . de rerum vocabulis cap. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . erasm. adag . . chil. . cent. . (a) cent. . adag . . chil. . psal. . . generosioris arboris statim plantae cum fructu est . adag . . chil. . cent. . (a) vnus quisque debet agere secundum quod sibi ipsis decet . a gellias lib. . c. . p. . impetu quodam currere ad mortem commune cum multis ; sed deliberare & causat ejus expendere utque senserit ratio vita mortisque consilium suscipere vel-ponere , ingentis est animi . plin. secundus in epist. adag . . cent. . chil. . cent. . chil. . . . . adag . . chil. . cent. . adag . . chil. . cent. . in anno . hollingshed , p. . (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . adag . . chil. . cent. . (b) adag . . cent. chil. . epid . . lib. . de re rust. . omnia conductor solvit , ovid . amor. eleg. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . chil. . cent. . adag . . nemo iustus esse potest qui mortem , qui dolorem , qui exilium , qui egestatem timet , aut qui ea qua sunt contraria aquitati auteponit . cic. . offic. fides sanctissimum humani pectoris bonum est , nulla necessitate ad fallendum cogitur , nullo corrumpitur praemio ; ure ( inquit ) occide , coede , non prodam , sed quo magis secreta quarit dolor hoc illa altius condam . senoc . lib. de const. sapient . vagabundus essusus in voluptates , ac vagabundus semper & ebrius . senec. lib. de vita beata . pro gluentio . pro milone . si careat suspicione testimonium vel propter personam à qua fertur , quod honesta sit , vel propter causam quod neque lucri , neque gratiae , neque inimicitiae causa sit , admittendus est , calistratus lib. . de cognitionibus . quise non opinari sed scire , non audivisse sed vidisse , non interfuisse , sed egisse dicunt . cic. ●yo archia . praebeo me non aliter quam rupes aliqua in vadoso mari destituta , quam fluctus non desinunt , undiquaque moti sunt , verberare , nec ideo aut loco eam movent , aut per tot aetates crebro ineursu suo consumunt . seneca lib. de beata vita , c. . (a) agellius lib. . c. . malmesbury hist. novel . lib. . manere debet apud nos frater fidei robus immobile , & stabilis , atque inconcussa virtus contra omnes incursus & impetus obl●trantium fluctuum . &c. sanct. cyprian . epist. . shute's history of venice . p. . ab 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vel 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 becman , lib. de orig. lingua lat. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . john. . . rimari est quaerere valde , festus prov. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. dyonisius areopag . apud stobaeum serm. , . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . evagrius apud eundem . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . epist. ad pollionem . very felons and thieves , words of stat. eliz. c. . spelman gloss : in voce . (a) eliz c. . jac. . . h. . c. . h. . c. . eliz. . & p. & m. c. & e. . c. . eliz. c. . eliz. c. . eliz. c. . eliz. c. . h. . c. . h. . c. . & e. . c. , & . eliz. c. . e. . c. . stamford . pleas of the crown . cook . part . instit. pleas of the crown . & on littl. p. . spelman in gloss. lib. . syntag. juris universi : cap. . instit. p. . instit. p. . pag. . pag. . stat. de his qui ponendi sunt in assessis . quanquam perante dominum baldwinus frevil , idem officium calumniasset sed minime obtinuisset , p. . spelman gloss in verbo calumnia , p. . resolution of the judges in the case of sir walter rawleigh , instit. p. . b. (a) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dictum de livia erasm. adag . . chil. . cent. . ingenii magni , malignus , sermone rudis habitu rusticus , ad quaelibet-atrocia facinora suscipienda princeps , ab omni aut erga homines misericordia aut erg● superos reverentia alienissimus . tho. morus cancellar , in r. vita p. . impross . lovanii . hollingshed . p. . cook. . part instit. chap. parliament . act of of the king entitled an act for preservation of his majesties person and government against treasonable , seditious practises and attempts . see the act entitled an act for the attainder of several persons guilty of the horrid murther of his late sacred majesty king charles the first . anno . car. . confirmed by of our most gracious king. isay. . . prov. . . psal. . . gen. . v. . vnus ille vir ipse consul rempublicam sustinuit . livius lib. . vnus impetus trilunitios popularesque procellas sustinuit . lib. . psal. . satyr . prim● . cook instit. p. , , &c. stat. . h. ● . c. ● . sunt quidam it● natura muneribus in iisdem habiles , ita ornati , ut non nati , sed ab aliquo deo ficti vid●rentur . cie . lib. de clar . oratoribus . valebis , neque enim mihi ratio est cum ejusmodi homine haber● hospitium commune . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , adag . chil. . cent. . adag . . et pro hac suspicione constitutum est , ne quis extraneum hospitetur nisi de clara die , ne● permittat eum recedere nisi declarata die . bracton lib. ● . de corona c. . p. . chil. . c. . p. . ad accusationem hujus criminis admittitur quilibet de populo liber homo & servus , &c. dum tamen sit is ille qui accusat integra fama , & non criminosus quia criminosi ab omni accusatione repelluntur , bracton lib. . de corona . c. . fol. ● . in uno homine , velut in archive quodam celeberrimo , perfectio●●s & proprietates , creaturarum reponerentur , quorumque ipse & complementum esset , & thesaurus velu● omnium uberrimus , sic luscinias cantu , elephantos memoria , prudentia . simi●s gesticulatione , canes sagacitate . &c. aldrovand●s , ornith . lib. . p. . note this . linwood lib. . de sacra unctione , p. . b. k. adultus in gloss. iuvenis à juvando , quod ea aetas maxima sit apta ad laborem tolerandum . a iurisconsultis juvenes dicuntur , qui adolescentium excesserunt aetatem quoad incipiant inter seniores reputari . plin. lib. . c. . (a) incipientem pubertatem ad dilectum v●cari , lib. . c. . lipsius lib. . p. . . lex à quinquagessimo anno militem non cogit . senec. de brev. vitae . c. ult . fabius instit. lib. . liv. lib. . lipsius lib. . de millt . rom. p. ● . quemadmodum in minore corporis habitu potest homo esse perfectus , ●sic & in minore temporis modo potest esse vita perfecta , senec . epist. . (a) tholoss . lib. . c. . c. . & lib. . c. . . complectamur illum & am●mus , plena est voluptatis si illa scias uti , quam dulce est cupiditates fugasse ac reliquisse . epist. . & sic ep. ● . shutes history venice , p. . plin. lib. . c. . de remed . amor . . de statu dignitatis recedere cic ▪ attic. lib. . . . cic. pro quintio . offic. . vivet eni● vivetque semper atque etiam latius in memoria hominum & sermone versabitur , postquam ab oculis recessit , plin. ep. . brompton in regno cantiae , p. . edit . lond. bochartus geograph . sacrae , p. . lib. . c. . ex alfr. rhevalensi . cambden's remains . . rep ▪ de iur● regis . eccles. p. . cambden's remains . p. . vowell's description of england . p. . m. paris . p. . . chil. . cent. . adag . . psal. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . adag . chil. . cent. . adag . . leones non omnes sunt ejusdem temperamenti ; qui montes inc●lunt minus habent caloris & ferocia & vicis●im quanto plus os●ive participant tanto sunt calidiores & audaciores veluti colentes desertum angua qui totius africae sunt tru●ulentissimi . aldrovand . lib. de quadrupe . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 homerus apud erasm. adag . . chil. . cent. . psal. . . mandrabuli more res succedunt , adag . . cent. . chil. . deur . . . plus apud campanos unguenti quam apud cateros olei fit . adag . . cent. . chil. ● . see doctour ridley's view of civill and ecclesiasticall lawes , p. . vt ingenium adhiberetur ad turrim . m. paris . p. . l. . hinc machinam reticulum vel aliquod hujusmodi vocamus an engine , gloss. ad m. paris in verbo ingenium . m. paris . in viti● p. . r. . c. . semper aliquis in cydonis domo . adag . . cent. . chil. . de m●litia romana , lib. . p. politic. lib. . cassan. catalog . glrr. mundi . p . note this & be thankfull . brechaeus ad leg . . p. . de verb. signific . de agro , aratione , & aratoribus , lege turnebum . adversar . lib. . ● . . becman . de ling. latina . varro lib. . elegant . vnde roma campus mortius . caesar. . bell. civil . . siculi circum aut hippodromum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vocabant , à flexu quadrigarum quae ibi certabant . becman in verbo . king. . . & . . saltus densior silva & invia , quod ibi arbores saliant in quo pasci & astuare pecudes solent . valla lib. . et brechaeus ad leg. . p. . de verb. signifi● . saltus est ubi sylva & pastiones sunt , ca jus aelius , lib. . signifi● . saltus pro magna possessione magnum agri modum conjunctarum quatuor centuriarum in agris divisis appellari saltus . varro de re rustic . lib. . c. . turneb . advers . lib. . c. . idem . lib. . c. . p. . alciat . in leg. . p. ● . de verborum signific . cic. in attic. lib. . . aeneid . . . lib. . de divinat . . sir francis barrington's case . cook lib. . p. . jac. . eliz. . eliz. c. . fleta lib. . c. . mr. fabian philip's tenures p. ● instit. p. . instit. p. . the stat. merton . . cod. de agricult & cens. lib. . l. colonus nunquam . (a) mutua caede grassantur , agricolis nulla in re nocent , sed intactos relin●uunt tanquam communis utilitatis ministros neque hostium agros urunt neque arbores caedunt . . antiq. luc. de ●enna lib. . c. eodem . cass. catal. gl. m. p. ● . instit. reipubl . lib. . titulo secundo . pancirol in notitia imperii de magistr . municipal . c. . eccles. . seges proprie fruges eorum seminum ex quibus conficitur panis valla. lib. . plin. lib. ● . c. . ●loss ad m. paris . in verbo bladae . fleta , lib. . c. . de exitibus grangiarum . item notandum quod sub nomine herbagii non continetur glans , bracton lib. . p. . deut. . . cook on stat. merton . instit. p. ●● . idem loco praecitato . quia in arvis osserebantur festus . varro lib. . de re rust. c. . lib. . fol. . m. paris . . in vita sancti albani . l. . lipsius poliorchet lib. . dialog . . p. , . vallo vel fossa circundare gloss m. paris . in verbo parca . arbor est generale nomen & appelationo ejus vites quoque & hederas . &c. continetur jurisconsulti . planta de arboribus dicitur ea quae transferendae gratia vel de arboribus rapta , vel ex seminibus est orta , servius in georg ▪ jerem. . . psal. . isay. . isay. . , , , , , . luk . . matth. ● . instrumenta sua monachis nullatenus ostendere voluerunt , id est , ait glossator , scripta sua authentica chartae donationum , & evidentiae munimonta vocantur . gloss. in m. paris . in verbo munim . & in hist. p. . in vita agricolae . praesidiis , custodiis , vigiliisque coloniam munire . cic. . in catil . . (a) pro flacco . . (b) de senect . . valla in raudens . lib. . . argonaut . lib . belli punici . a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 notans levitatem . scalig. lib. . poetic . c. . procella vis ventorum cum pluvia ab ●o quod omnia procellat . servius . * librata terrae continet quatuor bovatas ( id est , oxgangs ) terra unaquaeque bovata tredecim acres continet ; & librata continet quinginti duo acres . gloss. ad m. taris . in verbo librata . agri aquaerum irrigatione aut pluviae carentes , nullos fructus cultoribus praestant . lucas , de penna . c. de fundis rei privatae , tit. . ex agris irrigaetis bis in anno fructus praecipiuntur . papinianus apud cassau . catal . gloss m. p. . (a) cic. ● . de nat. deorum . plautus epid. . . (b) lib. . c. . iniqua aquarum , loca per quae aqua rivos producit ad irrigandum . plinius lib. . c. . & lib. . c. . signum autem binignitatis pastoris est , quod greges nori diffugerit , fleta lib. . c. . vowell's description of england , p. . in l●queo lupui . adag . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . chil. . cent. . ad. . si le● ovem vel agnum furantur apprehensi baculo vel lapide fugientibus leonibus timorem incutiat . aldrovandus lib. . de quadrup . digit ovipar . p. . . (a) cent. . chil. . adag . . non in anglia quanquam in europa in plaga septrionali ulyss. aldrov . lib. ● . p. . quadrup . ovip . linschotten descript . indias , p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in persid . ha● tantas viri virtutes , ingentia vitia aequabant , inhumana crudelitas , perfidia plusqua●● punica , nihil veri , nihil sancti , nullius dei metus , nullus jusjurandum nulla religio , livius lib. . de hanaibale . surgent de nocte latron . virgil. in pluto . budaeus lib. de asse● , et ejus partibus lib. . p. . in aeneid . livius dec . . lib. . brechaus ad legem . de verb significatione . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , philo in lib. de josepho , p. . budaeus lib. de asa , & ejus partibus , lib. . p. , chil. . cent. . adag . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , eurypid . in hecuba , adag . . chil. . cent. . instit. c. . ad finem . pastores autem expedit habere discretos & vigiles & benignos ne oves per iras suas t●rqueantur . sed ut pacifice in laetitia suas depascant pasturas . fleta lib. . c. . cassan. catal. gl. mundi , p . olympiod excerpt . p. . edit . sylbur . gii . country from contrada the italian word ; so emperour frederick in his epistle to our h. . m. paris . p. . contrada tota descendit inde usque ad joppen , id est regio ait gloss. eam sententiam sic ad unguem servant hujus temporis homine ut hominis vocabulo videatur indignus qui non qua ratione suis consuler● commodis noverit , erasm. ad adag . . chil. . cent. . cass. catal gl. mundi . p. . anima secundum ordinem naturae non perfertur alteri amina , s. thom. part. . qu. . art . . anima quanto nobilior est tanto plures potentias operationis & organa habet , part . . qu. . art . . anima non impeditur à suo corpore ut est perfectibile ab ea , sed ut habetis aliquid repugnans animae , s. thom. part. . quest . . art . . ex omnibus latinis verbis hujus verbi vim vel maxime putavi . cic. . de claris oratorib . qui aut tempus quid postulet non videt , aut plura loquitur aut se ostentat , aut eorum quibus cum est vel dignitatis vel commodi rationem non habet , aut denique in aliquo genere , aut inconcinnus , aut multus est , is ineptus dicitur , advers . lib. . c. . (a) cic. in coelio , offic. de opt. genere orato . de nat. deorum . lib. . c. . lib. . c. . cic. pro roscio , lib. . lib. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . adag . . cent. . chil. . vivos homines mortui incursant boves . plautus de loris quibus caeduntur servi , qua facti fuere è coriis bovalibus , erasm. adag . . chil. . cent. . (a) adag . . cent. . chil. . deut. . v. . isa. . . isa. ● . . history of france . p. . budaeus in pandectus , p. . edit . vascos . ager proscissus ad serendas seg●tes arvum dicitur , plantatus autem & consitus arboribus , aut vineis vinetum nominatur , adificatus vero villa est . brechaeus ad leg . . lib. de signific . verborum . lazius lib c. . p. in duodecem tabulis legum nostrarum nusquom nominetur villa . plin. lib. . c. . ¶ lazius lib. . c. . p. . * villam tripartito distribuit partem unam urbanum , rusticam alteram & terti am fructuariam columella , lib. . c. . budaeus in pandect , p. . edit . vascos . in 〈◊〉 spartianu● hadriano . alciat . in . leg . p. . de verb. signific . epist. lib. . ad attic. alciat . ad leg . . lib. de verb. signif . brechaeus ad leg . . lib. de verb. signif . fornerius ad leg . . lib. de verb. signif . lib . rei rustic . manzo sive mansio , italis est quantitas terra quae sufficit duobus bobus in anno ad laborandum . papias glossator . vadianus jurisconsultus in origin . dicit esse villam cum pradio ecclesiae annexam & servitio seculari liberam , vid● plura in gloss. ad . m. paris . in verbo mansus . cic. . verr . argon . . . lib. . c. . pro roscio americ . ad qu. fratrem . lib. . . academ . . verr. electi milites & primicerii qui primi inceris scribebantur , duces exercituum . gloss. ad m. paris . in verbo primicerii . seminarium sena●orum equestrem esse lo●um . noldenus de statu nobil . . . besoldus de nob. & comit. imperi● . lipsius , de militia rom. p. . adag . chil. . cent. . catal. gl. mundi , p. . digest . lib. . tit . . miles periculi com. p. . h. . c. . h. . c. . h. . c. . patent . e. . multi de militibus universitatis regni qui s● volunt . bacchalaureos appellari sunt contriti m. paris de iustis apud brackley , temps h. . p. . lege gloss. in m. paris in verbo baccalau●ei . ( a ) instit. p. . lindshotten hist. east indias . erat numeras militum eleganter ad unguem armatorum quatuor milia absque undique adventantibus , armigerorum autem & servientium ac balistarum numerus ad viginti millia numerabantur , m paris . p. ▪ (a) idem . p. . (b) b. p. ● . l. . instit. p. . my good friend m. fabian philips , in his disc . of capite tenures . p. . rast. stat larg . sir edward cook iustit . on the statute addition p. . m. paris . p. . gloss ad m. paris . in verbo vice dominus . m. paris . p. . . (a) pro domo sua (b) lib. . c. . (c) brechaeus ad leg. . p. . de verb. signific . & in leg . . m. paris . p. . gloss ad m. paris . in verbo swaine . ex quibus robertus knolls ex paupere mediocrique valerio mox factus ductor [ regii exercitius ] ad divìtias usque regales excrevit ibidem . walsingham in e. . p. . gloss in m. paris verb. ascriptitii . agri cultores & fossores vinearum non de bent eligi in consules , ubi est copia aliorum sapientum , jacob. rebuffus lib. . cap. de agricolis . ab aymaro de valence-comite , pembrochiae qui fuit unus de assessoribus & judicibus super mortem , t. de lancastria usque ad istum johannem de hasting , nullus unquam comes pembrochiae patrem suum vidit , sed nec pater filii visione latatus est ; walsingham in r. . p. . edit . lond. vowel . p. . cook upon littleton . lib. . p . b. the king , lords , and great men did ever reserve the sectas curia , though they made gift of lands in frankelmaigne ; therefore the bishops and clergy owned this , item ratione hujusmodi possessionum , the king and other men might compell episcopos , pralatos , religiosus , & rectores ecclesiarum facere sectas ad curiam laicalem . m. paris in additamentis , p. . vbi secta est servitius , quam tenentes debent domino suo & curia ejus . gloss. in textum annexum . see littleton . sect. . & sir ed. cook on him , lib. . burgasaticum ] terras colonerum , vel burgorum , & ingenuoram , heritages en roiture , closs ad m. paris . garciones , id est , pedites , & sequentos equos , quos vulgus expertum est pessimos esse ribaldos , m. paris , p. , , . . m. paris , p. . lib. . c. . . . duodecim milites gladio cinctos electi in assisa de consensu partium litigantium , hanc assisam solenniorem ob magnam & specialem aliquam causam indictam . gloss. apud m. paris . in verb. assissiam . eccles. . . mariana in hist hispan . tholoss . syntag. iuris universi , lib. . c. . sect. . annotat. in pandect , p. . edit . vascos . luter . in folio . (a) lib. . c. . tholoss . lib. . c. . sect. . & lib. . c. . sect. . natura perennis fontis est gloria vena laudabilis nam sicut ille sluendo non expenditur sic nec ista celebri sermone siccatur , alathar . apud cassi●d . variar lib. . ep. . cypriano patritio . sam. c. . m. paris . p. . . rex milites anglos ut ad obsidionem veniant jubet nisi veline sub nomine nething quod latine nequam sovat recìnseri m. paris . p. . nething lucifica unde nigh nunc night . gloss. ad m. paris . in verbo . libera quia nihil iniquias venali justitia plena quia justitia non debet claudirare celeris quia dilatio est quedam negatio , cooks instit. p. . instit. p. . e. . c. . r. . . h. . . h. . . h . . h. . . h. . . h. . . h. . . h. . . . . e. . r. . . h. . . h. . . h. . . h. . . e . . . eliz. . (a) howe 's cronicle , p. . rolinus cancellarius ducis burgundiae , multas domos ●excellentissimas construi secit , & suis posteris viginti quinque villas , in quibus erant castra amplissima & superba cum viginti quinquae millibus , lib. turoneasum redditus annui reliquit , cassan. catal. gl. mundi , p. . * isti communes conjurati & confaederati stephanum cantuariensem archiepiscop . capitalem consentaneum habuerunt . p. . vowell's description of england , p. . hypodeig . neustriae , p. . mr. nab. philips of capire tenures p. , & . ligeancia obligatio vasalli erga dominum , ut servitium debitum ei praestandum obedientia , & pro eo stet contra omnes nunc soli regi agnoscimus , m. paris . p. . temp. e. . gloss. m. paris . ad verb. malvicine . athenaeus in despnosophist . lib. . c. . p. . instit. ou littleton . p. . in re modica non est copia , jul. scalig . in theophr . lib. de plantis . haec tamen veluti in laudem patrii soli non [ tantum ] ex animi judicio , sed amoris indulgentia prodidit , ciuverius antiq . lib. . p. . de bodino laudante gallos . plebs pene servorum habetur loco , qua per se nihil audes , & nulli ad hibetur consilio . caesar de gallis , com. lib. . de quadcuped . lib. . p. . dedecet is quadrupedum animantium regem ad tuguriolum meum alimenti causa accedere , tua interest per montes proficisci ad capiendos cervos , & alia hujus generis animantia leonino victui competenies , quibus verbis leo , quasi decantatus , oculis in ter●am defixis . afflicto animo discedit , aldrov . lib. . de quadrup . p. . chil. . cent. . adag . . shute's history of venice . p. . adag . . cent. chil. . si rustisus emat frudum nobile , non sit nobilis , cass. catal. gl. mundi . p. . lib. de nobilitate , p. . . , &c. tater his fascibus praefuit sed & frater eadem resplenduit claritate ; ipsa quodam modo dignitas in stemmatibus vestris larem posuit & domesticum factum est publicum decus alathar . opil●oni apud cassiod . variar lib. . ep. . origo ipsa jam gloria est●lans nobilitati connuscitur , idem vobis est dignitatis quod vita principium , var. lib. . ep. . magna abundantia laudis est in penurba reipublica vel mediocria munera mer●●sse alathar . s●natui ep. . var. lib. . hujus mali causa est nobilium institutum , qui res consentantas & mutua ope nixas , generis claritatem literarumque peritian collidi inter se & di●●entire putant , quo errore factum est ut disciplina olim ingenua appellatae ad plebem jamdiu transierint non tantum à nobilibus sed etiam o mores perditos ) à sacricolis repudiatae , ne non generosus esse & lantus , antistitum ordo prasulumque putaretur , lib. . de asse p. . edit . vascos . (a) in pandect , p. . & . note this well . n●bilitas est dignitas proveniens à coruscatione clari sanguinis , à parentibus originem sumens & in liberos legitimos per carnem continnata [ iurisconsulti . ] nihil in ea laudabo nisi quod propriam est , & eo nobilius quod ex opibus & nobilitate , facta est . paupertate & humilitate nobilior epist ad principem virginem . history venice . p. . vnde melius nobilitati collegam quaerimus quam de vena nobilium , qui se promittat abhorrere moribus , quam refugit sanguine vilitatem nathar . agapeto ep. . cassiod . var. lib. . quid enim gener●sius quam tot literarum proceres habuisse majores al●th sonatui var. lib. . ep. . & lib. . ep. . pedites ut bellicosi & fortes evadant , opus est ut in conditione aliqua non servili aut inopi sed libera & copiosa degant , itaque si quod regnum & status in nobiles generosos potissimum excrescat , agricola antem & aratores loco tantum & conditione operariorum inserviunt , aut sorte tuguriastri meri existant , qui pro mendicis tecto coapertis haberi possint , equitatu certe pollere possit , sed peditaru mini●● , dom baconus cancellar , in hist. h. . p. . edit . lat. ridley , view lawes ecclesiastical & civil . p. , . aranti concinnato viator attulit dictaturam , serranam invenere serentem oblati honores , lege exempla apud cass. catal. gloriae mundi , p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , strabo lib. . & lib. . agriculturae non student majorque pars victus corum lacte , caseo , & carne consistit , caesar de antiq. germanis , com. lib. . cluverius antiq. lib. . p. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , strabo de britannis , lib. . nihil agricultura melius , nihil uberius , nihil adulcius , nihil libero homine dignius , lib. . offic. & lib. . de senect . in omni gallia corum hominum qui aliquo sunt numero atque honore , duo sunt genera , nam plebs penè servorum habetur loco , qui per se nihil audet , & nulli adhibetur consilio . caesar. comment . lib. . cass. catal. gl. mundi , p. . barthol . caepolus tract . de imperat milibus eligendis , in verbo nobilitatis . dom baconus cancellar . in● hist. h. . p. . lat. magnam partem fundi regni agricolis , & mediae sortis hominibus mancipabat , & perpetuabat . idem sodem . note this . vt modessissimo cuique & innocentia praedito jus suum obtinere plerumque non liceat , aut certe in illis meandris forensibus harere , in labyrinthosis dilationum similus consenescere , veteratorias pragmatiorum imposturas plurima judicum fastidia fastusque quorundam perpeti , mille iudignitates devorare necesse sit , budaeus in pandect . p. . edit . vascosam in folio . terra est frumenti praecipue & pabali ferax & aemaena lucis immanibus . pompon . maela lib. . de siiu orbis , p. . edit . steph. nec potest sane aliud esse praesiguratum praeter illud , cassan. catal. gl. mudi . p. . textor in epithetis . (a) budaeus cancellar . lib. . de asse & ejus partibus . catal. g. mundi p. . history france in h. . p. , . dr. ridley in his view of the civil and canon law. p. . the authour's wish . caterum lex ista mosis proprie ad facti controversium pertinens , in proverbium transiit , ita ut de rebus aliis usurpatur , grotius in matth. . . hoc dicit ne pasiim sed cum discretione ad judicium mortis procedatur , in quo compescitur malitia invidorum , hugo cardin. in deut. . . sub testimonio trium peribit omnis malus , & salvabitur omnis bonus ; patris scilicet filsi & sp. sancti sit peccatoris condemnatio erit sub testimonio cordis , oris , operis , hugo card. in loc . matth. . . chil. cent. adag . , p. . contraire vel contradicere , glanvill lib. . c. ● . lex nova nihil determinat circa catemonialia vel judicialia nes pracipit alia moralia quam lex vetus . . st. thom. quest. . att . . lex vetus erat bona quia cons●nabat rationi , reprimendo concapiscentius , sed erat im perfecta quia non poterat sufficienter ad finem inducere . st. thom. . secanda qu. . art . . lex vetus dissert a lege naturali non ut ab ea penitus aliena sed ut aliquid ei superaddens , s. thom. . . q. . art . . deut. . . c. . . in ore duorum vel trium ] bona fama , jus testimonii moribus hebrais non habent amentes , pueri ante annum tredecim , fures etiam post restitutionem qui de alea victuant , publicani qui plus áquo exigunt , caprarii & si qui alii ea factitant , qua verberibus digna sunt , rejici etiam possint qui valde propinqui au● familiáres aut inimici sunt partium alteri , grot. in c. . deut. . h. . coram rege inter wakeling de stoke & w. de la guildhal . st francigena appellaverit anglum de perjurio , furio , homicidio , aut rane , quod dicitur aperta rapina , quae negari non poteris anglus se defendat per quod melius voluerit aut judicio ferri candentis vel duello . leg. guil. . p. . edit . twisd . brompton in w. . p. . glanvil lib. . c. . idem lib. . c. . spelman in verb. duelli , oloss . tholoss . syntagm . juris . lib. c. . binius ad fin . tom. ● . concilior . p. . in summis majoris antonii , part . . lib . c. z. de electione & potestate cardinalium . et tit. . c. . de statu cardinalium & legatorum . cardinales debent osse dei amici singulares per vitae perfectionem , ut sicut praecellunt alios dignitate , ita excellunt in sanctitate , ff . . quantum , &c. rubeus lib. . rational . divinor . offic. c. . impress . venet. aurel. arcad. charis . lib. singul. de offic. praf . pratorio . lib. . ceremon . ecclesiastic . p. . ritnum eccles. lib. . sect . . sub leone . papa . baronius tom. . p. . albergat . discurs . polit. p. , . cassander , p. . de officio missae . (a) tom. . concil . p. . chalcondylas , lib. . de rebus turc . (b) tom. . p. . binius , to. . p. . ius pontificium . c. prasulum . . q. . cardinales , filii primi gradus dicuntur , tholoss . lib. . c. . sf . . cum summi pontificis sedes vacat , in interregno sacro sanctum cardinalium collegium rempublicam christianam regit , rerumque difficaltati consulit , donec pontifex creatus . tholoss . loco sodem , ff . . binius tom. . , concil . p. . & . spelman . gloss. in verb. cardinal . aventinus lib. . hist. boiorum . quanto magis ponderat in iudiciis plurium idoneorum testium fides , quam unius tantum , tanto tutiore aquitate nititur ista constitutio , quam duellum . cum enim ex unius jurati testimonio procedit duellum , duodecim ad minus legalium hominum exigit ista constitutio jur amenta , clanvil . lib. . c. . numerus supplet quod in fide deficit , digest . lib. . tit. . ff . numerus p. . & lib. . tit. . c. . lotinus deut. . . tatrinaceus de testibus , dist . . num . . & seq . see mr. selden's notes on c. . of our text. * rep. abbot of strata marcella's case , p. . lib. de mundo c. . meterolog . c. . mes appiert per l' opinion de bracton & britton auxi , que flòtsam jetsam & ●agan cy longe come ils sont in au sur le mere n' appent al roy , mes occupanti conseduntur , constable's case , rep. p. . grotius de iur. belli & pacis , lib. . p , . meteorologie . c. , & . gen. . . see our learned mr. selden in his notes on this chapter . h. . h. h. . vide rotul . e. . ●instit . p. . instit. p. . b. instit. , , & seq . r. . fol. . stamford . pleas crown , fol. . dyer , p. . instit. p. . e. . tit. coron . . (a) e. . b eliz. diggs his case in scaccario . stamford p. . pleas crown . cook , . part . instit. fol. . chap. of piracy . . report , p. . sir henry constable's case . see in sir henry constable's case , rep. p. . 't is resolved by the court , que le roy avera flotsam jetsam & lagan comme est avantdir per sen prerogative comment que ils sont in du sur le mere ; and the reason there is , car le mere est del ' ligeance del roy & parcel de son corone d' angleterro . tholoss syntagm . lib. . c. . . spelmans gloss , p . . spelman in gloss in voce admiral . (a) non est aliquis qui inde privilegium habere possit , rex non magis quam privata persona , propter incertum rei eventum ; to quod constare non possit , ad quam regionem sunt applicanda . sir ed. cooks . rep. spelman in gloss. loco pracitat . seldens mare clausum . vult me pompeius esse , quem tota hoec maritima ora habent , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 speculatorem & custodem . sic ep. ad attic. in majori dignitate constituti sunt duces & principes militum , apud nos vulgo dicitur conestabilis , cassanaus . catal. p . admiralius gallica primum vox fuit , & dignitas latissime deinde a variis populis usurpata pro ille illustri prafecto , cui maris imperium & littorum , a rege conereditum est , qui classes & navalia . instit. p. . see resolut . of the iudges , temp. eliz. regin . instit. p. . instit. p. . title court of the commission . c. . abbot strata marcella's case rep. p. , . e. c. . e. . c. . e. . c. . r. . c. . & in other statutes . spelman . in gloss. in voc . constabularii . hertog . & hertug . cluverius lib. . antiq. german . c. . erant & alia potistates & dignitates per provincias & patrias universas , &c. qua heteroches apud anglos vorabantur , scilicet barones nobiles , & insignes sapientes , & fideles , & animosi . latiné vero dicebantur ductores exercitus ; apud gallos capitales constabularil vel mareschalli exerci●us , inter leges ed. confess . p. . edit . twisdensi . * feron au catalogue des grands maistres de france , tholoff . syntagm . lib. . c. . ff . . flor. wigorn. in anno . spelm. gloss. p. . selden notes on this chap. p. . dyer . p. . instit. p. . instit. on littleton . p. . e ; . c. . fleta lib. . c. . le case del marshalsea , rep. instit. p. . cook. . instit. c. . p. . c. pramunire p. . & seq . fleta lib. . c. . & . de officio mariscalli forinseri , de officio mariscalli tempore pacis . instit. c. . instit. p. , . note this iudgement . honor. military & civil , lib . c. . instit p. . spelman . gloss. p. . walsingham in r. . p. . see the case of abbot strata marcella , rep. p. , . cook instit. p. . b. note this . selden on the text. mercatorum navigia vel inimicorum quidem quacunque ex alto nulles jactata tempestatibus in portum aliquem invehemur , tranquilla pace fruuntor . inter leg. ethelst . stat. . anno . item propter personas qui celerem babere debent justitiam ; sicut sint mercatores quibus exhile●ur iustitia pepoudrons , lib. . de brevi de recto , p. . & lib. . de exceptionibus , p. . cum commercia hominum maxima utilitatis sint & facilis esse expeditio deboat , placuit negotiatoribus praeponi proprios judices , & fere apud omnes gentes , cum & juris gentium commercia sunt . tholossan . syntagm . iuris lib. . c. . sect. . instit. c. . (a) cooks sixth report . nota quod in curia mercatorum debet judicari de aquo & bono omissis juris solennitatibus , hoc est , non inspectis apicabus . qui veritatem negotii non tangunt . lib. . sect. tit. mandati vel contra . neque enim ille magis jurisconsultus quam justitta fuit ; it aque quae proficiscebantur a legibus & a jure cevils semper ad facilitatem aquitatemque referebat ; neque constituere litium actiones malebat quam controversias tollere . . philip. si levanda navis gratia jactus mercium factus sit , omnium contributione sarciatur , quod pro omnibus datum est . digest lib. . tit. . de lege rhodia . in necessitatibus nemo liberalis existit . reg. jur. bartolus apud digest . lib. . tit . . p. . plin. lib. . budaeus in pandect . reliq . p. . edit . vascos . chirographorum confectionem anglicanam , qua antea usque ad edwardi regis tempora fidelium praesentium subscriptionibus cum crucibus aureis absque sacris signaculis firma fuerunt , normanni condemnantes , chirographas chartas vocabant . & chartarum firmitarem cum cerae impressione per uniassuinsque speciale sigillum sub insullatione trium vel quatuor testium astantium conficere constitnebant ingulphus abb. crowl . in histor. edit . savell . doctor ridley in his view of the civill and ecclesiasticall law. p. . reg. iur. note this . ne quis in matrimonis vinculo indissolubili . fraude deciperetur , alex. ab alex. lib. . c. . sulpitius , eam qua in manum convenerat , in manu mancipeoque mariti esse dixit , idj est , justam esse matremfamilias ; camque concubinam , qua cum viro hujusmodi uxoris consuevisses , justam pellicem esse . budaeus in pandect . prior . p. . b. edit . vascos . idonei vacum antiquarum enarratores tradiderunt matronam dictam esse proprie , qua in matrimonium cum viro convenisset , quod in matrimonio maneret , etiamse sibi liberi nondum nati forent , dictumque esse ita à matris nomine non adepto jam , sed cum spe & omine mox adipiscendo . a. gellius lib. . c. . (a) lib. . regul . digest . lib. . tit. de ritu nuptiar . , p. . (b) digest . lib. . tit. . de sponsalibus . lege zuingerum in theatro . à p. . ad p. ● . de die & in facie ecclesiae celebrentur . lindwood . lib. , de sponsalibus p. . & p. . gratian. decret . part . , caus . , qu. . per totum fol. . tholoss . syntag. juris , lib. . c. . ss . . tholoss . syntag. juris universi . lib. . c. . ss . . ridley , view of the canon and civil law , p. . lib. . commen . lib. de senect . * lib. . h. . c. . abbott strat. marcell . case . rep. ridley , view of the lawes p. . . glanvil . lib. c. . reg. juris . glanvil . lib , c. . reg. juris . * gentem anglorum spretis legalibus connubiis adulterando & luxuriando sodomitici gentis foedam duxisse vitam , bonifacius epise . mentz in epist. apud antoninum , tit. . c. . ss . ¶ nitio uxores proprias non halet , lib. . adv. jovinianum . omnium fere qui ad septentrionem & ortum habitant , soli umca uxore conte ti initio fuere , sabellicus ennead . . lib. . zuinger's theatr. vit● . humanae , vol. . lib. . p. , ad . eorum appelat quintilianus in quo judicia publica exercebantur . budxus in pandect . in p , , , . ¶ glanvil . lib. . c. . quia ecclesia non po●est judicare de his qua latent , & ideo si de clam contractis nuptiis coram judice ecclesiastico agatur , cam dubium illi sit non interveniente ecclesiastica solennitate an fuerat factum matrimonium , non potest compellere servare illud . tholoss . syntag. lib. . c. . de personis & ritu nuptia●um . behemoth elephantem intelligunt omnes hebraei . grot. in locum . a ad invincibile robur prastandum supra omnia animantia reliqua , in loc. aldrovandas de quadrup . à p. . ad p. . testes habet non foris conspicuos sed intus circa renes conditos , plinius de elephanto . ( a ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . verere , formidare . nervi intricati sunt , nam nervos intus absconditos habet , grot in loc. ex arist. lib. . de gen. animal . aldrov . de quadruped . p. . . ligula modus magicus frequens apud gallos , quo excellentia matrimonia solvantur , & conjugale vinculum à deo institutum labefactatur ; & tamen hoc agere non tantum perditorum hominum est , sed virorum bonorum & honestarum foeminarum , nec putant hoc tam enormi facinore deum offendi , quod id impune patrant omnes & doceant . boissardus , lib. de divinat . speech at whitehall , anno . p. . of his works . de nugis cur. l. . c. . see sir ed. cooks preface to the . report . lib. . c. . usque ad finem . edi● . . lugdun . batavorum . in cap. . p. . in novella lib. . p. . edit , london . pag. . instit. p. . cooks instit. p. . regist. p. . sir ed. cook instit. p. . the authors desire in this book . in usu fuit reipublicae officia consensu & suffragio populi dispensare , & hoc elevatione manuum ; unde à graecis 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vocantur qui in rescriptis imperatoris theodosii & valentini creatores appellantur cum vulgo creditores , cujacius apud petreium in notis ad philonis librum de officio iudicis . (a) leges namque anglorum licet non scriptas leges appellari non videtur absurdum , cum hoc ipsum lex sit quod principi placet & le gis habet vigorem , eas scilicet quas super dubiis in consilio definiendis procerum quidem consilio , & principis accedente authoritate constat esse promulgatas . glanvil . in prolog . an t . tractat. de leg . & consuetud . angl. instit. c. . p. . qua quidem de causa moses roges istos ac principes quasi corporales quosdam deos su● nomine constituit qui in rep. regenda & moderanda vicariam ei operam praestant . hopperus , lib. de instit. principum . verum ac proprium boni principis munus est dei imaginem & similitudinem ut geren● , suorum commoderum oblitus , in unius reipublicae verum ac solidum bonum cedat . hopper . loco eodem . rex ] deorum omnium commune elogium , sic apollo à theocrito . noptunus ab homero , priapus ab orpheo , demum dii omnes ab omnibus poetis . cerda in lib. . aeneid . p. . lib. . de jur. belli & pacis , p. ● . eicon basilic . c. . et de tam fera exactione , nè iota unum voluit retinere , ingulphus edit . savell . p. . voluminis . car. . note this o england and be thankfull . isa. . . notes on chap. . p. . r. . dom. baconus cancel . in h , . e. bacons hist. h. . in notis ad lib. . senec. de beneficiis . p. . postremo cum juramento addidit , quod noluit sacramentum violare ad quod astrictus fuerat in coronatione sua , concedendo literas pacis , & indulgentia tam notorie delinquentibus , in sus persona contemptum & totius regni perturbationem & majestatis regiae lasi●nem . walsingham in e. . p. ● . poulton , p. . ● e. . c. . vt singuli artes suas exercerent , & ut nulli pannis praetiosis aut pellura uterentur , nisi qui possint expendere per annum centum libras ; & ut plebei operarii & agricultores non vescerentur cibis delicatis aut potibus sed haec omnia nullum effectum capiebant . walsingham in e. . p. . edit . lond. basill con doron lib. . p. , & , works in fol. nullius consilium , nullius consortium , nulliusve solatium curare videbatur nisi petri solius , qui pecuniam potius quam aequitatem plus respexit , munera quam causarum qualitates , walsingham p. . in anno . hypodeigm . neustriae , p. . cent. . chil. . adag . . confirmationes chartarum . instit. p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ad. . chil. . cen. . the praise of fortescue . townlaei orat in memoriam cambden . . imp. oxoniae . cui laus hac tribuenda est quod primum in ista materia glaciem fregerit , primusque docuerit multas esse exiguas vias in arteriarum extremitatibus , per quas sanguis quem à corde accipiunt , in ramulos venarum ingreditur , deschartes in method . dissert . p. . d● d. harvaeo . interveniente enim populi voluntate & assensu crescit robur & patentiae regum & major est ipsorum authoritas & faliciores progressus , cominaeus com. lib. . de gest. ludov. . p. . quicquid in eo convent● decernebatur legis habebat vigorem , neque modo populos obligabat sed ipsum regem . sed postquam regum virtus defecit , & cuique sua libido imporavit , haec consuetudo congregandorum statuum abolitae est , ut paulatim hoc jugum sum●●veretur . tempore autem ludovici undecimi perduellionis reus habebatur , quisquis de eo consilio restituendo verbum fecisset ; solebatque rex ille usurpare , se ex ephebis jam excessisse , negue tutoris e●ere , albergatus discurs . politic. p. . cominaeus com. lib. de gestis ludov. . contzen politic. lib. . c. . p. . cluverius antiq . lib. . c. . gallia comata quae nunc francia dicitur , budaeus in pandect . p. . edit vascos . (a) comata gallia , omnis gallia uno nomine appellata , lib. . c. . generale nomen est , non modo ad frumentae , leguminaque ; sed etiam ad omnes fructus terra quos in alimoniam vertimus , varro , lib. de ling. lat. (b) festus , servius , & donatus . epistol . . georg. de natur. deorum . tam pinguis alicubi & tam ferasis soli , ut in ea , mella frontibus desluant ; lanas sylvae ferant , &c. lib. . de situ orbis . c. . (c) lib. . c. . tota illa pars europae praelustris ac omnium pene nobilissima gallia , in idem franciae nomen transivit . antiq. lib. . cap. . lib. , de asse p. . edit . vascos . vt ex filiis meis primogenitus esse● deus post me , & natu secundus gallias imperaret . lansius in consult . europae , p. . geography p. . in fol. pymand . mercurii , lib. . c. . dialog . . p. . grimston hist. france , p. . relatione de regno gallico , p. . offic. . livy . ab vrbe . tacitus lib. . cic. . divinat . in comment . ad . taciti lib. de morib . german . p. . nic. faber . in notis ad lib. . controv. senec. . p. . walsingham in hypodeigm . neustriae . p. , . cum multis dominis & baronibus & d●obus millibus fer● hominum nominatorum de armis , de communibus vero numerus ignoratur . idem loco eodem . bonum principem augustum , & bene illi convenisse parentis nomen fatemur , ob nullam aliam causam , hac gratum ac favorabilem reddidit , haec h●dicque praestat illi fam●m qua vix vivis principibus servit . senec. lib. de clem. quod cum audivissent comites , cum displicentia ad propria discesserunt walsingham in e. . p. . matth. . . (a) doctor heylin , p. . psal ▪ (a) quo anno haec prodidi , princeps noster tantam ferme pecuniam ex ditione gallica percepit , budaeus , lib. . de asse , p. . b. sic enim sunt galli homines , ut prout quidque principi aut collibuit aut collibuisse dictitetur , id perinde jus fasque esse credatur ; omnium haeud dubie mortalium , qui quidem barbari non sint , maxime ut graece dicitur pytharchiei id est principalibus edictis aequo animo obsequentes . idem . p. . * commentarius de rebus gestis ludovic- . lib. . p. . paris . . budaeus , lib. . de asse p. . hoc est enim perendit quod graeci 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicunt quasi post crastinum . budaeus in pandect , p. . edit vascos . in e. . p. . quae quidem cohortes obequitant liuc illuc perpetuo , & non solum vivunt sumptu miserorum , sed etiam proterve & insolen ter in eos multa faciunt ; nec enim contenti sunt iis quae passim in agris reperiunt , verum miseris etiam hominibus vim adferunt , eosque cogunt longius abire , & aliunde adferre cibaeria delicatiora , mitto quod uxorum quoque & filiarum pudicitiam tentant , commentar . lib. de gestis . ludov. . p. . huic autem incommodo facile possit occarri , si bimestri quovis dependerentur eis stipendia ; sic enim nullam essent haebituri causam qua se purgarent de injuriis illis quas inforunt , necessitate quadam ut aiunt , eo quod ipsis non persolvitur . idem lib. . p. . * dr. ridley , view laws civil and eccles . p. . davis history of ireland , p. . heylin . geogr. p. . geogr. p. . in paenul . in verr. act. ● . budaeus in pandect . p. , & in reliq . p. . b. est quaedam sane in nobis innata pravitas , adeo magna quidem ut nulla plane ratio nos ab injuriis & violentia coerceat , cominaeus comment . lib. . de gestis . ludov. p. . adag . . cont. . chil. . p. . focus privata cujusque domus , quemadmodum ara aliquando templum significat . vrbem , agrum , aras , focos , seque uti dederent , plautus amphitr . act. . sc. . lib. . c. . advers . lib. . c. . turneb . advers . lib. . c . tholoss . syntag. juris . lib. . c. . ss . ● . lib. . c. . heylin , geogr. p. . morotrix dicitur , qua indifferenter so exponit omnibus ; concubina vero , qua uni soli se exhibet . est autem concubinatus foraicatio quaedans continuata rum soluta determinata , ita ut sit velut cohabitatio quaedam ac si matrimonia effet conjuncta , sayerus in clave regia sacerd. lib. . c. . num . . in vitellio . c. . plin. lib. . c. . venuleius lib. de militibus . sueton in calig . c. . plin. lib. . c. . si quis violaverit muros , capite punietur , pompon . lib. . digest . p. . advers . lib. . c. . lib. . c. . lib. . c. . lib. . c. . eicon basilic . c. . initia . a veteribus romanis jamdudum institutum fuit , in leg. . ss . salinarum . p. . de verb. signific . coelius rhodig . lect . antiq. lib. . cap. . plin. nat. hist. lib. à cap. . ad c. . brechaeus loco praecitato . (a) lib. . c. . lib. . c. . (b) lib. . c. . (c) lib. . c. . josephus lib. . antiq. burchardus in descript . terrae sancta . part . . c. . marc. . . parochi & xenoparochi idem sunt . qui peregrinis salem & ligna praebebant , sub nomine autem harum specierum omnia hospitibus necessaria intelligimus , budaeus in pandect , reliq . p. . edit . vascos advers lib. . c. . p. . * tu●nebus advers . lib. . c. . p. . lege budaeum lib. . de asse . p. . edit . vascos . grimston's hist. france , p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , philo lib. de septenario & festis , p. . tholoss . syntag. juris universs . lib. . c. . ss . . & seq . albergatus disc. politic. p. . ●eylin's geog. petr. martyr . in reg. c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , chil. . cent. . ad. . p. . french history , p. . tholoss . syntag. lib. . c. . lib. . c. . de gest. francor . h. . instit. c. . m. charta , p . miserrimum era● spectaculum videre multitudinis & populi arumnas , cominaeus com. lib , . de gestis ludov. p. . a good principle . the authour's prayer . eicon . basille . c. . chil. . cent. . adag . . vt fore in tota francia ubi octava de umo venali fisco debetur , cassanaeus catal. gl. mundi . p. . caupona , ubi etiam advena & ad comedendum & ad cubandum , non ad stabulandum recipiuntur ; & differt à taberna , qua est locus ubi comestabilia venduntur , & comedentes recipiuntur , non ad cubandum vel ad equ●s stabulandos , sed comedendum tantum , digest . lib. . tit . . marg. d. taberna , p. . * in leg. . p. . de verborum signific . lib. . de vita apollonii c. . ¶ lib. . c. . plato lib. de legibus , tholoss . syntag. juris , lib , . c. . iosh. . . georg. plin. panegyr . . liv. lib. . lib. . bel●● punici . j. sleidanus illustrium rerum & galliae descript . armata dicebatur virgo sacristcans cui basinia tog● erat in humerum rejecta , fest. (a) cicero pro cecin . . cic. pro domo sua lib. . . in r . p. . ducis lancastriae & caeterorum dominorum defectum ne dicam falsitarem , qui regnū defendere debuerant , attente considerans walsingham . p. . in r. . loco pracitato . vt comos non habuit quod responderet , idem ●od . loc● . psal , , . isay. . . god give us to think of this seasonably . bona quae bellum aufert , sunt liber religionis usus , reipub. tranquillitas , studia literarum , possessiones , agri , vineae , pradia , domus , agricultura , mercatura , navigatio , &c. milites enim castra sequuntur , sape non ut bonam & justam causam defendant : sed ut spoliato & exuto omnibus fortunis adversario , ditiores domum redeant , pileis inter se nummos distribuant , holosericum non ulnis sed hastis metiantur , lib. de bello & duello , c. . p. . heylin , geogr. p. . heylins geogr. budaeus lib. de asse , p. . edit . basil. . in fol. lib. . ad attic. . ¶ de germanis , quintill . lib. . c. . . sagitta quod satis longe agatur , vel à satis & ictus , vel quod sagax sit ictus , etymolog . lib. de vita mosis , p. . plutar●h . in apothegmar . natur. hist. lib. . c. . p. & lib. . c. . p. . lib. . c. . stimulus amissae pecunia , pestis corporalis miseriae , malleus infernalis memoria , sanct. bernard . in sententiis . * holingshed , p. . temp. r. . holingshed . p. , , , , , . atque ad illam causarum operam ad quam ego nunquam nisi apparatus & meditatus accedo . de legib. . de invent. . valla lib. . nul terre sans guerr● , prov. gall. translated , he that hath land , is seldom out of law. hypodeigm . neustriae , p. . hist. france . in his life . a brave k. and a true publick father . cent. . chil. . adag . . reges enim illi , solum dici merentur qui se & alios virtutum plenitudine regunt , cassan. catal. gl. m. p. . gaguinus in chron. franc. cass. catal. gl. mundi , p. . hist. france in life of lewis . p. . cass. catal. gl. mund. p. . hist. france , p. . tolle malam voluntatem , & toll●● gehennam , french hist. p. , . heylin's geogr. p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . * eccles. . . livius . mortem lacesiit qui luxuriose intempevanterque vivendo valetudinem labefactar . turneb . advers . lib. . c. ad finem . ¶ donec privatus capit● , docuit suo miserabili fine nobiles milites non lacessendos , in edw. . p. . rusticos pascua esse militum , milites pascua esse diabolorum , dictum ludovic . . deut. . ● . * cominaeus de gestis ludov. lib. . p. . note this . cambden in his remains . the lord chancellor's speech at the opening of the parliament in may. . budaeus in pandect . p. . comment , lib. . de bello gallico . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , dioscorides lib. . cap. . lib. . cap. . lege commentar . in lib. . c. . p. . isa . . ezech. . . ad tria sufficit aqua , ad potandum , ad lavandum , ad cibes coquendos ; sic verbum dei crudos carnis cogitatus igne spiritus sancti accedente coquit , & vertit in sensus spirituales , & cibes mentis . sanct. bernard . serm. . in cant. caentic . lib. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , p. . non solum autem vereres dicbus festis & laetis solebant templa ramis ornare & velare ; sed & in magna laetina familiaribusque sacris & nuptiis suos postes e●am sertis umbrabant atque velabant & infulis decorabant ac insigmebant , addebant & lucernas . turnebus advers . lib. . c. . p. . & lib. . c. . p. . (a) budaeus in pandect . p. . edit . vasco . (b) in pandect . reliq . p. ● . imp. pasil . . ( c ) lib. . de invent , c. . formam cuculli & frocci quàm colorem transmutavit primitivum . in vita wolnothi . m paris p. . indicit omni anno totum conventum cum secta sua de tunicis , omni altero anno de cucullis , & omni tertio anno de eroccis , ingulph . hist. croyl . in verbo ' p 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lib. . c. . advers . lib. . c. . p. . ¶ in l divus de bonis damnator●m . pannosus qut sordida veste , ●rassu panno vilique opertus est , nec hoc nisi de panpere dicitur . (a) justinus lib. . (b) pannis involutus sacram in corpore suo dedicavit paupertatem , serm. . de nativ . dom. sacco vinum veteres , turneb . advers . lib. . ● c. . (c) plin. lib. . c. . & . tunica vestis estcui toga superinducitur , budaeus in tandect , p. . edit . vascos . advers . lib. . c. . lib. . c. . lib. . c. . lib. . c. . lib. . c. . lib. . c. . cui laticlavii jus non erat , ita cingatur , ut tunica prioribus oris infra genua paulum posterioribus ad medios poplit●● usque perveniant ; nam infra mulicrum est . supra centurionum , budaeus in pandect . p. . edit . vascos . rosinus antiq. rom. lib. . c. . p. . rosin . de antiq . rom. lib. . c. . p. . proprie as cruris oppositum sura , celsus lib. ● . c. . arma quibus crura muniuntur tibialia vocant . hyeme quaternis cum pingui toga tunicis , & subucula thorace laneo & femoralibus & tibialibus muni●batur , in aug. c. ● . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , philo lib. de cherubim . p. . muliards quast molliores . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , lib. de temulentia , p. . cum autem esset dies sanctus pentecostes , supplicaverunt cremonenses , ut propter diem sanctum differretur pugna usque in crastinum saltem . rigordus de mediolanensibus in gestis philipp . regis franc. p. . fecit & in colle quirinali senaculum , id est , mulierum senatum , in quo ante fuerat conventus matronalis solemnibus duntaxat diebus , facta & senatussonsulta ridicula de legibus matronalibus , qua quo vestitu incederent , quae cui cederet , qua ad cujus ofculum veniret , qua pilento , qua equo saginario , quae asino veheretur , quae carpento mular● , qua boum , qua sella veheretur , &c. lampridius in heliogab . p. . tom. . hist. august . script . lat. vopise . in aurel. (a) in pandect . p. . edit . vascos . gulielm . de nangis , de gestis ludovici regis . p. . script . gall. literis fuis patentibus sub poena excommunicationis praecipiens universis ecclesiarum rectoribus & vicariis sua provinciae , & illorum subditis , ut de catero non ab●●ineant in sestis quorundam sanctorum ; ab operibus manualibus & servilibus , qua prius in talibus festis sieri non licebit . walsingham p. . horat. . ep. . ius porcorum , pullorum , piscium , & jus pulmentorum , largissimas epulas . apuleius . pulmentum pridem si eripait . accius plautus in aulul . . . succidia verbum catonianum , quo nostr● lardum significant , ex quo in usum suum quotidie partes succidunt . agellius lib. . c. . vbi aliquid aruit & rostum est , abit humidum , solum id quod siccum & aridum superest beeman . in verbo . assestrice● vocabantur , quia assident f●ta . etymolog . catalog . gl. mundi . p. . mercatores quia pecuniam possident hisc● temporibus , plurimum gratia valent ; veru● nulla gaudent prarogativa ; quta omnis lucri avidi professio nobilitatem in regno illo maculat . albergatus in rel. reg. gallic . p. . (a) digest . lib. . tit . . art . ● . paulus lib. . ad legem juliam & papiam . p. . may. . amos. ● . . zeph. . . vers. . ¶ deut. ● . . quod enim conservandis regibus firmius praesidium , quam pietas , quam mansuetudo , quam clementia & liberalitas esse potost . gaguinus , lib. . fol. . edit . veter . ludovice , inquit , regnau● ha●tenus , plur●●is vectigalibus & tributis meum populum vexans , nec mihi satis cura fust , monetam cudere , qua legitimi ponderis esset ; cam ob rem mu●torum odia in me concitavi : ecce , post me regnaturus es , miserere patris animae , . & quae perperam à me gesta sunt . ipse emendes . idem lib. . p. . b. eicon basil. c. . to the then pr. of wales , now our gracious lord and sovereign . a word in season is like apples of gold in pictures of silver . the happy act of indempnity and oblivion . a divine sentence is in the lips of the k. his mouth transgresseth not in judgement . prov. . . in his speech at the opening of the parliament . . si vis tribunus esse , immo si vis vivere , manus militum contiu● nemo pullum alienum rapiat , ovem nemo contingat , uvam nullus auferat , segetem nemo deterat , oleum , sal , lignum nemo exigat : annon sua contentus sit de praeda hostis , non de lacrymis provincialium habeat . flavius vopisc . de aureliano in epistol . militari . p. . ego boni ducis functus sum officio , qui debellare hostes didici , & socios honorifice tractare , corumque ulcisci injurias ; didicerat autem optime militum licentiam coercere , inquiens , principem irritare milites quos non castigat . forcatulus de gallor . imp. & philosoph . lib. . p . b. imp. paris ● . ideoque omnibus populariter charus atque ita venerandus , ut ab ipso posteri reges merovingi in francia appellari caeperint , indicio manifesto rarae virtutis . idem eodem loco . caesar lib. . de bell. gall. cic. lib. . de nat deorum . galli natura feri sunt atque superbi , & in rebus tentandis animosi , in prosperis intolerandi , in suïs commodis augendis assidui , in alienis negligentes , & in re bellica saepe promissa fallentes . quandoquidem hac apud illos viguit opinio , ubi commodum adest , ibi quoque adesse honestatem & majestatem , soletque proverbio usurpari habeas galliam amicum , s●d vicinum nequaquam . albergatus in discursu politic. p. . bicon basil. cap. . note this . non contribuunt ad collectas nobiles & ex constit . carol. . cavetur no subsidia aliqua , talia , focagia , impositiones , auxilia , à nobilibus & corum successoribus solvantur vel exigantur tholoss . syntag. juris . lib. , c. ● . ss . . gallorum enim optimates recepto more , qui in francos translatus est , cafuriem insignem & copiesam lubenter ostentaverunt , ●● fortasse libentius quod ( ut jam dixi ) franci quasi liberi potissimum nominarentur . forcatul . lib. . de gall. imp. et philo p. . b. edit . paris . , shute's hist of venice . tholoss . syntag. juris universi . lib. . c. . ss . . * guido pap. decis . . ordinarii judices vocantur in gallla qui judicant , cum ipsi non sunt periti , id est , non sunt graduati in iure ; omnis enim graduatus prasumitur esse peritur . et ideo his iudicibus appenduntur assessores , qui homines sunt perite , & qui illos judices informant in jure in omnibus casibus . catalog . gloriae mundi . p. . . ordinaria & delegata potius copulantur p. . rosinus antiq. rom. lib. . c. . a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lib. de nominum mutatione p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lib. . devit . mos. p. . camera , id est , ex arca domini . tholoss , syntag. juri . lib. . c. . ss . ● . camera ] vela ad excipiendum pulverem , ne super mensas spargeretur atgue dapes simul conspurcaret ab horatio aulaa vocatur , quem morem hodie principes & monarchas servare compertum est . apud quos mensas sub quibusdam veluti tentoriis sericess parars sape videmus . rosinus antiq. rom. lib. . c. . p. . qui praest cubiculo camera regi● cassan catal . gl. mundi . p. . serres hist. of france , p. . london impress . . modestinus ad l. pompe●am de paricidiis . schottus in notis ad contr. senec. lib. ● . p. . minime majores nostri lagendum putaverunt ●um , qui ad patriam delendam & parentes & liberos interficiendos venerit . pomponius digest . lib. . lib. de septenatio & festis , p. ● . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , philo lib. de judice , p. . philo in lib. quod det potiori , p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . idem lib. de mundi opific . p. . a good monition to greatness . magnum sine mensura , dicitur enorme . plin. ep. . longitudines ad regulam & lineam , altitudines ad perpendiculum , anguli ad normam respondentes exigantur . vittuvius lib. . de opere tectorio . fuller's hist. of the worthies of england in lincolnshire . p. . lege cassanaeum part . . catal. gl. mundi . p. ● . & seq . acta exteriora indicant interiora secreta . reg. juris cook ● rep. . the author 's hearty advice to his country-men . rex hoc solum non potest facere quod non potest injuste agere . reg. juris cook. rep. p. , . attribuat rex legi quod lex attribuit et , videlicet . dominationem & imperium non est enim rex ubs dominatur voluntas & non lex . bracton . lib. . ash. in fascicul . florum juris in lit r. h. . c. . eliz c. . jac. c. . instit. p. . * eliz. c. . h. . c. . common right in e. . called common law e. . instit. p. . see the notes on the chap. f●gitivum esse in ait caelius , qui ea mente discedit , ne ad dominum redeat , tame●si mutato consilio ad cum re vertatur ; nemo enim tali peccato , poenitentia sua noc●ns esse desinit . ulpian . apud digest lib. . tit. . p. . hospitalia ] locus erat ubi recipiuntur homines causa misericordia vel auxilii . digest . lib. . tit. . p. . s asylum . budaeus in pandect . p. . b. edit . vascos . in tandect . reliquas , p. . iudges v. . note this . a asylum ] locus erat ubi recipiebantur homines causa misericordia vel auxilii , puta hospitalia & consimilia , ab a quod est sine & sylvos quod est tractus , quia non extrahebantur inde , qui eo confugerant . (b) gloss. ad digest . lib. . tit. . p. . de aedilicio edicto f. asylum . (c) syntagm . juris . lib. . c. . observare aut●m proconsulem oportet , ne in hospitiis prabendi● oneres provincias sicut imperator nester cum patre ausidio severiano rescripsit . ulpian . lib. . de offic . proconsulis . lib. . digest . tit. . p. ● . sec h. . c. . s. e. . c. . droit ne poit pas morier , reg. littletoni , see instit . p. . sir ed. cook. instit. p. . instit. p. . de possessione , id est , de proprietate . digest lib. . tit. . de judiciis . k. si de vi ] p. . lib. . tit. . p. ● . cook. littleton p. . b. note this well . h. . c. . see the preamble to the statute of jac. c. . cook. instit. iurisdiction of courts . chap. . ipse patria munus afferre , & fascibus suis illam premera potentia & dignitas est , humili se ac depresso loco stare putat , quisquis non supra rempublicam stetit , accepti ab illa exercitus in ipsam convertuntur , & imperatoria concio est . senoc lib. . de benefic . p. . cum id tempora reipubl . postularent , aut à muneris pro familiari copia faciendi assiduitate . budaeus in pandect . p. ● . b. edit . vascos . (a) locuples p●rro est qui satis & idonee habet pro magnitudine rei quam creditor petit . tholoss . syntagm . lib. . c. . ss . . alciat . & forner . in leg. . ss . . (b) lib. . c. . . (c) lib. de senectut . . locupletem ait dictum qui pleraque loca hoc est possessiones ac pradia tenst . agellius lib. . c. . verr. . verr. . lib. . c. . de divinat . . gen. xiii . . gen. xxiv . . gen. xliv . . lib. . de gallorum imperio & philosophia , p. . b. a e. . c. . e. . c. . e. . c. . h. . c. . h. . c. . h. . c. . phil. & m. c. . phavorinus part . . de hominis excellentia , c. . p. . see his gracious majesties speech at the prorogation of this parl. . (a) quod sacrorum gratia lecti in tomplis sternebantur , ad discumbendum in apulo publico . alciat . in leg. . p. . de verborum signific . lib . ab vrbe . valerius maximus lib. . cap. . de nuptiis . tu esto lectisterniator . tu argentum eluito . plautus . (b) supellex ] domesticum instrumentum patrisfamilias , quod neque auro , argentoque facta , vel vesti adnumeratur , id est , res mobiles cujus numero sunt mensa trapezophori , lecti inargentati , sipontinus . c lib. . c. . (d) lib. . c. . lib. . c. . e lib. . de orat. . lib. de amicit. lib. . philip. supellectilis origo , immanavit , quod olim his qui legationem profsciscerentur , locari solerent , qua sub pellibus usui forent . fornerius in leg. . p. ● . de verb. signific . prov. xxxi . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plato lib. . de republ. p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plato in minoe , p. . inducit socratem sic loquentem . cogitanti mihi quid offerrem regia celsitudini dignum meaque professioni congruum & officio , id occurrit potissime ●fferendum at regi regni de regno conscrib●rem . in proamio ad librum . papa potest canonizare aliquem approbando & manifestando alicujus hominis sanctitatem & toti ecclesiae proponere , & eorum venerationem mandare ; nam inter puros homines papa est caput ecclesia . tria autem sunt de canonizatione alicujus sancti , sanctitatis , ejus approbatio . . sanctitatis ejus adept● à popul● veneratio . . fidei totius ecclesia benesicia illius sancti posc●ntis confirmatio . baptista rubaeus in rationali divinorum . offic. lib. . c. . p . impress . venet. autor vita sancti aquinatis . libri qu●s de regimine principum ad cypri regem conscripsit , ostendunt quod illuc usque suarum virtutum fama , nominisque reverentia penetraverit , quid autem libris illis huic regi conscribendo occasionem prastiterit , nondum mihi compertum est , nisi quod crediderim suarum virtutum samam , gratum ●um & amicum tunc illi regi , tunc aliis multii ipsam reddidiss● aut●r vitae ejus . oportet esse in omni multitudine aliquod regitivum . lib. . c. . de regimine principum . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plato lib. . de rep. p. . k. iames in his book of the true law of free monarchies . p. . of his works in folio . eicon . basilic p. . edit octav. gubernatoris est navem contra maris pericula servando illesum ad portum salutis : bonum autem & salus consociata multitudinis est ut ejus unitas conservetur , quae dicitur pax , qua remota , socialis vitae perit utilitas , quinimo multitudo dissentiens sibi ipsi onerosa lib. . de reg. principum . c. . p. . * lib. de excellentia hominis . part . . c. . p. . see the preamble to the stat. iacob . c. . lib. . c . de regim . principum . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . po●yb . lib. . p . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , quasi dicas , regnum omnibus numeris absolutum ; ejusmodi erant reges principes romani , ulpiani tempore , nihil jam priscae civilitatis retinentes , omnia arbitrio suo staetuentes , ut & nunc reges nostri sunt , qui omnia in potestate habent , quique ut homericus ille jupiter , quoquo se verterint , omnia circumagunt , nutu etiam solo omnia quatientes : denique humani joves , sed qui tamen hominum more emoriantur . budaeus de reg. galliae . annot. in pandect . p. . edit . valcos . illud naetura non patitur ut aliorum spoliis nostras facultates , copias , opes augeamus , hoc enim expectant leges , hoc enim incolumem esse civium conjunctionem , quam qui dirimunt , eos morte , exilio , vinculis , damno coerc●nt . jacob. tapia . lib. . de triplici bono & vera hominis nobilitate . p. . turpem dicens ebrietatem in rege quem oculi omnium auresque sequerentur . seneca lib. . de ira. herodotus lib. . hist. potens etiam non solum à possum verbo . verum etiam à potior deducitur . turneb . lib. . c. . non enim me cuiquam mancipavi , nullius nomen fero , multorum magnorum virorum judicio credo , aliquid & meo vindico . senec. ep. . kingly constancy . speech at the opening of the parliament . . l. chancellours speech then and thereunto annexed . lib. de studio literarum recte instituendo . p. . b. edit . vascos . impotentia & incontinentia conjung●ntur in bonis authoribus . turn . advers . lib. . c. . ne quis vestrum neve corum aliquis , qui vobis paruerit , ●ffensionem aut divinam aut nostra● concitetis . spelman in concilus . ad an. christi . aristoteles . lib. . politic. * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . polyb. lib. . p. . lib. . d● gestis alphons . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . philo. lib. de virtutibus & vitiis . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . polyb. lib. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plato lib. . de leg. p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plato lib. . de rep. p. . hoc enim vinculum est hujus dignitatis qua fruimur in republ. hoc fundamentum libertatis , hic fons ●niquitatis . cic. orat. pro cluentio . polybius lib. . p . l. chancellour's speech at the prorogation of the parl. may . . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. polyb. lib. . p. . tanquam legum subversor & publicus regni proditor , walsingham in e. p. . quos odio inex●rabili perstringebant , ca maxime quia regem ducebant pro sua voluntatis arbitrio , in tantum quod nec comes , nec baro. nec episcopus quicquam valuit expedire in curia sine horum consilio & favore . idem eodem loco . sir ed. turnor speaker of the cōmons house in parliament , in his speech to his majesty at the prorogation of the parliament in may . vbi jam sum ista regula , ubi quid sit justum ab injustis cogn●scitur ; ubi descripta sunt , nisi in libris illius lucis qua veritas dicitur , ubi lex omnis ju●tae describitur , & in cor hominis qui operatur justitiam : non migrando sed tanquam imprimendo transfertur , sicat imago annuli ex annul● . sanctus augustin . lib. . de civitate dei. c. . quid interest inter tyrannum & regem ; specie enim ipsa , fortuna , as licentia par est , nisi quod tyranni voluptate s●viunt , reges non nisi ex causa & necesiitate , lib. . de clementia , p. ● . rosellius in pymand . trismig . lib. . c. . quast . ● . p. . vol. . orat. . contra aristogiton . digest . lib. . tit . ● . p. . non consolabimur tam triste ergastulum , non adhortabimus ferre imperia carnificum , ostendemus in omni servitute apertam libertati viam . seneca lib. . de ira. p. . preamble to the eliz. c. . preamble to the eliz. c. . quia ad hoc ordinatur corum potetestas & ●ujuslibet domini , ut prosint gregi , alias non sunt legitimi domini sed tyranni . aquinas lib. de regimine principum . c. . remember this . perierant omnia ubi quantum suadet ira , fortuna permittit , nec diu potest ; quod multorum malo exercetur , potentia stare : periclitantur enim , ubi eos , qui separatim gemunt , communis metus junxit . seneca lib. . de ira. p. ● . see the preamble the eliz. c. . * lib. . c. . d● triplici bon● & vera hominis nobilitate . eicon basili● p. . edit larg . octav. rare counsel worthy a good king. in the letany of the church of england . * chapters● ● , , , , , , . . fastorum . ferrea tam vera proles exorta repente est . lib. . de nat. eorum . * pascit autem si est generosa proles frequenter duos , nonnunquam trigeminos lib. . tholoss . syntagm . juris . lib. . c. . ff . . uxorem duxi , natum sustuli , filium educavi . quintil. lib. . c. . charitas quae est inter natos & parentes dirimi nisi detestabili scelere non potest . cic. lib. de amicit. * lib. . c. . tholoss . lib. . c. . consensus praeponderat concubitui . tholoss . lib. . c. . ss . . consensus solus facit conjugium . rogul . juris . promis●to de suturo matrimonio , sequente copula , facit matrimonium praesumptum , contra quod non habet locum probatio . regul . juris apud tholoss . lib. . c. . ss . discurs de matrimonio . part . . c. . ss . . a p. . ad p. . in epist. ad exoniens . episcopum concil , tom . part . . p. & e. . c. . glanvil . lib. . c. . & . selden's notes on this chap. ubi non est copia aliorum , bene assumuntur minus legitimi . gratian. decret . part . . dest . fol . (a) loco praecitato . lex enim h●sce justis filiis aequiparat , nihilque a legitimis legitimatos differre jubes , no● hi invicem dissimiles a legitimis & naturalibus censentur . alciat . lib. . de verb. signific . p. . tholoss . lib. . c. , , . & lib. . c. , , . matrimonii honestas naturalis est . tholoss lib. . c. . . de privilegiis matrimonii lege cassanaeum ad consuetudinem burgundiae ad tit . des droit appartenans a gens mariez . instit. p. . on c. . of the stat. of merton . non potest de facili praeter consensum haredis sui filio suo post-nato de haereditate sua quantamlibet partem donare . lib. . c. . glanvil . lib. . c. . haeres autem legitimus nullus bastardus , nec aliquis qui ex legitimo matrimonio non est , procreatas esse potest . lib. . c. . fol. . h. . c. . nec haeredes judicabuntur quod parentibus succedere possunt , propter consuetudinem regni qua se habet in contrarium lib. . c. . (a) in descript. iuris feudal . p . spurii autem non succedunt etiam in gallia patribus vel eorum agnatis , & ita conveniunt omnes , quia non habent jura sanguinis . lib. . c. . (b) in verbo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . instit. p. . on ch . . mert●n . lib. . c. . capite de exceptionibus contra personam quarentis , &c. fitz. herbert . title bastardy , , , , , , , . and the year books h. . fol. . h. . fol. . e. . fol. . e. . fol. * deum ista conjugia semper prohibuisse & nunquam placuisse , & pracipue temporibus christianis concubinas baber● nunquam licuit . nunquam licet , nunquam licebit excerptio egbedi . ad ann. . canon . spelman in concil . p. . sic in canonib . sub edgaro . p. . sic inter leges canuti ; p. . . . . . . tholoss . lib. . c. . sl . . lib. . belli africani . . orat. pre plancio in iugurth . in parad. . non enim coitus matrimonium sacit , sed maritalis affectio . forner . ad leg . ff . . p. . lib. de verb. signific . qua ratione deprensi in concubitu & adulterii accusati se excusant , si conjugium c●ntraxisse asseverent , corumque affirmatio verisimilis sit . alciat . ad leg. . p. ● . lib. de verb. signific . (a) field in his appendix to the third book of the church . c. . lege cassandrum in consultat . cap. de romano pontifice . p . tom. . concil . tract de primat . rom. ecclesiae . p. . &c. dr. field of the church lib. . c. ● . &c. . turrecremata summ. lib. . de ecclesiae . doctor field's . book c. . of the church . (a) tom. . p . nihil proinde aliud credendum , tenendum , aut docendum est , nisi quod sanctae romana tenet & docet ecclesia , omnium consentientium ecclesiarum mater & magistra ; cum vero qui à side catholica & romana ecclesia recedit , necesse est a veritate & capite deficere . concil . trevirense ad annum . tom. . concil . p. . a contrahentibus publicata matrimonia olim valida . to. . concil . gen. p . luke xii . , . bracton . lib. . de aequirendo rerum dominio , c. . p. . zouch in descript. iuris feudal . p. . in custom de normandy . (b) bracton . lib. . c. . de corona . p. . concilior . gene●al● tom. . c. . fol. . tom. . p. . tom. . c. . p. . proles tali nata pollutione non solum pareniem accipiat " n = " sed etiam in servit-tem ejus ecclesiae de cujus sacerdotis vel ministri ignominia nati sunt " n = " jure perenni manelunt . a●t . . concil . toletan . . tom . concil . p. " n = " . " cassand . lib. de officio pii viri . p. , . vniversalia praecepta iuris naturalis sunt indispensabilia . durand . lib. . distinct . qu. . art . . p. . lib. . dist. . qu. . p. . pralati ecclesiae non sunt domini sed ministri , nee fundatores sed executores . idem lib. . dist . . qu. . art p. . cor. . heb. . . philo lib. de spe cialibus legibus . p. . dispensatio non potest fieri contra pr●cepta iuris naturalis communia , sed tantum contra ta qua sunt quasi conclusiones corum . prim secunda quaest . . art . . mal. . . lib. . c. . . atque haec omniae quasi sepimento aliquo vallabit , disserendi ratione , veri & falsi judicandi scientiae . cic. . de legib. cic. de aruspice res. . gal. iv . . coloss. xviii . . ecclesia est uxor christi & pro amplitudine prolis sua mater sidelium . turtecremat lib. . de . ecclesia . c. . non enim aliud est dispensatio quam juris communis quadam in favorem particularem & relaxatio seu correctio , quae & privilegium dici potest . alciar . lib. . d● signific . verborum . p. . nunquam dispensandum est in prajudicium boni communis . sanctus thom. prim . secund . quaest . . art . ● . oranis dispensatio à praelato debet fieri ad honorem christi , & ad utilitatem ecclesiae . secund . secundae . qu. . art . . pontificiam dispensationem quando non adest justa causa dispensandi valere in foro fori , sed non in foro poli. bellamin . to. . concil . . p. , . tom. . concil . part . . p● ● . ex dispensatione summi pontificis nuptia contrahe possunt licite intra gradus seu generationes prohibitas . tholoss . syntag. lib. . c. . ss . , &c. duarenus lib. . de beneficiis . c. . p. . bellarm. lib. . c. , de authoritat . conciliorum . benzonius . in psal. . p. . solus deus potest dispensare in praeceptis divinis , non autem papa . . da. qu. art . . reg. juris . inter l. s. edvardi si quis di usura convictus . glanvil . lib. . c. . stat. merton . c. . instit. p. ● . (a) mr. selden on this chapter and words . consules a consulendo , gladiis , id est , ringis , & ringa cingunt renes talium , ut custodiant se ab incestu luxaria ; quia luxuriosi & incestnosi deo sunt abominabiles . bracton . lib. . de acquirend , rerum dominio . c. ● fol. . b. lib. de confusione inguarum . p. . necessarium fuitad quietam & pacificam hominum vitam aliquas ab hominibus leges imponi , quibus homines improbi metu p●na a vitiis co●iberentur & virtutem assequi possint . s. thom. prim . secund . qu. art . . conclus . iob. . . gen. . . sensus est quadam deficiens participatio intellectus . sanct. thom. part . . qu. . art . . sensus gustus quadam species tactus quae est in lingua tantum , non autem distinguitur a tactu in genere , sed a tactu tantum ad illas species quae per totum corpus diffienduntur . sanct. thom. qu. . art . . ad quartum dicend . quod cum absque aliis sensibus vivere po●tumus , absque aspectu scilicet , odoratu , a●ditu , atque complexu , absque gustu & cibis impossibile est humanum sustinere corpus . sanct. hieron . tract . . c. . a hist. animal . lib. . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. . c. . plin. lib. . hist. animal . c. p. . lib. . de anima . text. . capit● do odore . lib. . c. . de gener . animal . note this . lib. . de anima . fracastorius lib. de sympath . & antipath . c. . phavorinus part . . c. . plin. lib. . animal . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. philo lib. de his verbis , resipuit noe. p. . non tantum servilis erit conditio sed vulgari servitute deterior . vatablus in loc. no 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. philo lib. praecit . p. ezech. ● . psal. . . nuptia probant filium , gloss. ad nolit filium ] digest lib. . tit . . de his qui sui vel alieni juris sun● . p. . cum legitima nuptiae facta sunt● , patrem liberi sequuntur , vulgo quaesitus matrem sequitur , lib . digestorum . lex naturae haec est , &c. ulpian . lib. . ad sabinum . digest . lib. . tit . . p. . syntag. juris . lib. . c. ● . ss . . & lib . c. . ss . , & . & lib. . c. . ss . . a in leg. . ss . . foeminarum . p. . cook ●n littleto● . p. . . dyer . p. . . sect. ● . of villenage p. . in margin . gloss. lib. digest . . ti● . . de ritu nuptiarum p. . ulpianus lib. . loco pracit . eo quod pater in illo primum masculam suam virtutem exserit , & declarat se virum esse . fagius & munsterus in . genes . drusius in genes . . lib. disput . digest . lib. . tit . . de peculio . . stuprum in virginem viduamve committitur quod graci 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 appellant budaeus in pand. reliq . p. . fleta lib. . c. . lib. . de civitate dei. c. . concubina sum faminae cohabitantes cum hominibus absque scripto & subarratione & legitimis ceremoniis . gen. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. demost. orat. contra neaetam . musonius in lib. an philosophiam impediant nuptiae . stobaeus serm. . hierocles . lib. de nuptiis . lib. . de civit. dei. c. . spurius ] à 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 seminare , quia nihil habet à patre nisi semen . etymologistae . cap. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . aristophan . habent ergo nonnulis● munera silii concubinarum in plaga ortentis , sed non perveniunt ad regnum promissum . sanctus augustin . lib. . de civit. dei. c. . hebrat sentiunt altercationem inter ismaelem & isaacum subnatum fuisse de hareditate , quisnam ipsorum potior haeres abraham suturus esset , ibique ismaelem consisum praerogativa primogenitura pra se isaacum contempsisse . fagius in gen. . . a budaeus in pandect . priores p. . . edit . vascos . b cresolius mystagog . lib. . cap. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. eustathius p. . l. . edit . romae . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . suid. in verbo 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . tholoss . syntag. juris lib. . c. . ff . . a in androm . act . . v. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 schol. in homer . in ● . ilyad . plutarch in artaxerxe . in comment . grac. lingu . p. . à platone . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] qui non est ex propria & legitima uxore , sed ex alia natus muliere , extraneus de his dicitur , qui est ex urbibus vicinis jerusalem , humilis & contemptibilis . pagninus in verbo . b tumebus advers . lib. . c. . p. . lib. . c. . lib. . c. . p. . in summis tit. matrimonii , p. . c tholoss . lib. . c. . ss . . emittere ex se profundas radices ut faciunt arbores bonae , hoc est , sobolem virtuesam seu vitam laudabilem . carthus . in loc . cassan. catal. glor. mundi . p. . . quia tale statutum contra jus divinum , ut in burgundia dicitur . idem eodem loco . baron . tom. . ad annum . p. . concilium pictaviense sub paschali secundo . binius . tom. concil . p , . cressol mystag , lib. . p. , , . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , lib. . politic. d in decretalibus statutum est quod nullus episcopus spurios aut servos , donec à dominis sunt manumissis , ad sacros ordines promovere praesumat . glanvil . lib. . c. . epist. . innocentii . part. . tom. . conciliorum . p. . tom. . p. . a cap. can. apost . tom. . concilior . p. . & can. . p. . tom. . p. . ridere ea rideri secularibus derelinque ; gravitas tuam personam decet . st. hieron . epist. . ad laetam . note this . vestis aspera , zona pellicea , cibus locustae , milque sylvestre , omnia virtuti & continentiae praparata . sanct. hieron . ep. a. ad rustic . monachum de joh. baptist. matth. . . plus debet christi discipulus prastare quam mundi philosophus , gloria animal & popularis aura atque nummorum venale mancipium ; tibi non sufficit opes contemnere nisi christum sequaris . sanct. hieron . epist. . ad pammachium . lib. . de consideratione . a ex epistol . ad maketum de egressu ex babylone . aliquid permittigratia virtutis , quod alias non permittitur . gloss. in pandect . lib. . tit . . p. . o virtuti note this . saltem per consuetudinem , non per legem . drusius in loc . concesta fuerunt viris uno tempore plures uxores in spem ulterioris sobolis . grot. in loc . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 libanius declam . . p. . edit . moreilii , anno . mulieres fuisse artis cauponaria , quarum mariti tum forte abierant negotiationis ergo . vatablus in reg. ● . . cum lex hoc nomine vetat connubia diversarum tribuum , ne permistio fiat pradierum . drusius , munsterus , clarius in loc . surius commentar . ad annum . d. avila . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. . gener. animal . c. . p. . selden in c. . of fortescue tiraq . de nobilitate c. . pontus hutterus de veteri belgio ad finem . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 plutarchus in alcibiad . ad initium p. . edit . paris . a lib. . tom. . haeres . . sperma omnibus rebus nascentibus attribuitur pro principio , scaliger in com. ad lib. . animal . aristotel . fo . . illegitime enim & furtive concubitu procreati , animo plerumque sunt alacri & elate , ingenio sagasi , & judicio exacto ; sumnerus in gloss. ad scriptores , antiq. angl. impress . lond. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 arist. de part. animal . lib. . c. . p. . shute p. . mentioned by the phoenix prelate bishop brownrig . serm. inauguration p. . dion cassius . lib. . incomparably learned doctor hammond in his annotations on this text . iohn . cic. . de finib . . tuscul. q. totum & partes . cic. . academ . totus ego . totus gaudeo , plautus . in liberali causa matris non patris inspicienda est conditio . tit. de lib. causa l. . & l. . tholoss . syntagm . lib. . c. . ff . . lib. . c . ff . . ulpian . lib. . ad sabinum . digest . lib. . tit . . p. . de statu hominum . fornerius ad leg. . p. . de verb. signific . tit. de his qui in potestate sunt . alciat . ad leg. . p. . de verb. signific . legitime natus quoad conditionem & originem patrem sequitur , matrem vero sequitur non legitime natus . bartol . digest . lib. . tit . . p. . celsus lib. . digest . digest . loco pracitat . ¶ notes ad cap. . fortescue . a gratianus decret . par● . . caus . . qu. . fol. . a in vita themistocl . mater quae legi se subjecerat , non maculabat natales , neque ad haereditatem capescendam obstabat . grotius in iud. xi . . b advers . lib. . c. p. . kings xiv . . c. xv . . c. xxii . . kings viii . . c phavorinus lib. de excellent . hominis . part . . c. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 arist. hist. animal . lib. . c. . non-observation of this cause of much mischeif . digest . lib. . tit . . ss . . p. . florentin lib. . instit. digest . lib. . tit . . de statu hominum . p. . notes on the text. p. . . in legem . p. . lib. de verb. signific . hercle quid istuc est ? serviles nuptia ? servine uxorem ducent ? plautus prol. casiu . * tholoss . synt. lib. . c. . ss . ● . instit. on littleton , p. . sect. . cook on him . p. . liber rub. c. . bracton . lib. . fol. . si mulier serva copulata sit libero , partus habebit haereditatem . lib. . fol. . partus monstrosi , id est , contra naturam seu formam hominum , non dicuntur esse legitimi . bartol . digest . lib. . tit . . p. . * historia naturae , p. . ammian , marcellin . lib. . ratio non potest reddi in his quae sunt de justitia positiva , nisi quod sic visum fuit legislatori . digest . lib. . tit . . d● postulando . quae etsi centies in die viro commiscuerat , potius delassatam quam satiatam sepradicabat . the author desires ever to be modest in all his expressions of the lawes . this sir ed. cook mentions on sect. . littleton . p. . digest . lib. . tit . . p. . gloss. o. & p. . lib. . tit. . de servitu tibus & digest . p. . solum vertere , id est , terram . budaeus in pond . relig. p. . caesar cons. gassendus de plantis . tom. . physic. lib. . c. . p. . theophr . hist. plant. lib. . c. . grot. in matth. vii . . arist. . topic. c. . lib. . hist. animal . c. . nat. auscult tract . . c. . gassend . physic. sect . . lib. . c. . clarius in matth vii . . quamdiù quisque malus est , non potest facere bonos fructus ; sicut enim potest fieri ut quod fuit , nix non sit , non autem ut nix sit calida : sic autem potest fieri , ut qui malus sit , non fit malus , non tamen potest fieri ut malus benefaciat , quia etsi aliquando utilis est , non hoc ipse facit sed fit de illo , divina providentia procurante . aquinas in locum . lex natura est hac , ut qui nascitur sine legitimo matrimonio matrem sequatur . ulpian . lib. . ad sabinum . digest . p. . pracitat . qui est in utero pro nato habetur quoad sui commodum . reg. iuris apud gajum . lib. . instit. digest . lib. . tit . . p. ●● . pater est quem nuptia demonstrant . paulus lib. . ad edictum . digest . lib. . tit . . de in jus vocando . p. . . instit. on littleton . p. . lib. de recta nominum ratione . eam naturam quae rebus nomina imposuerit celsiorem esse hac humana . clarius in loc. deus per hominem dixit quod homa prophetando praedixit . sanctus august . lib. . de nuptiis c. . vatablus in matth. . v. . ●rasm . in loc. idem adag cent. . chil. ● . adag . . grot. in c. . gen. v. . nostris ex ossibus alter . . aeneid . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . . politic. . plutarch . in sympos . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . digest . lib. . tit . . p. , . de edilicio edicto . theophilus antecess . instit. lib. . tit . . de senatus consult . tertul. p. ● . semper seniorem juniori & amplioris honoris inferiori , & marem famina & ingenuum libertino praeferemus ulpian . lib. . adedict . digest . lib. . tit . p. ● . digest . lib. . tit . . p. . aelian . hist. animal . lib. c. . observe this . non semper cum mulieribus mariti agunt amice & 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . grotius in tim. c. . . tholoss . l. . c. . prius diligendam esse uxorem quam ducendam , cognoscendam quam amandam ; & sapius maelitia & contemptus uxoris causam , esse stultitiam & fatuitatem maritorum qui non noverint cum uxoria opera authoritatem viri retinere . tholoss . lib. . c. . ss . . phavorinus lib. . & . de excellentia hominis . p. . principium jure tribuitur homini , c●jus causa videntur cuncta alia genuisse natura . plin. in pro●mio ante lib. . hist. natur. tholoss . lib. . c. . ss . . . vxores coruscant radiis maritorum & eorum dignitate & privilegiis gauden● . lib. fidei commiss . digest . lib. . tit . . p. . * tholoss . lib. . c. . ss . . apud veteres romanos nulla fuit lex . neque institutum divortii faciendi , & licebat maritis axores adulteras occidere , aut vinum si bibissent . brochaeus ad legem . p. . lib. de significatione verborum . pudendo eorum more qui usque adeo uxoris sunt , ne dicam ignavi , ut domi sua privati sint & uxoria potestati pareant , cum foris magistratus gerant , & viris imperare se dignos esse censeant . budaeus in pandect . p. . edition . vascos . note this well . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. dion . p. . ad finem vitae augusti . holingshed . p. , , , . selden's titles honor p. . rep. p. . rot. pari. . e. . rot. . quando mulier nobilis nupserit ignobili , desinit esse nobilis . ● rep. p. . mes si feme s●it noble , &c. per descent comment que el marrie ou un desonch le degree de nobilitie vncore son birthright re maine , car ceo est annexe a son sank & est caracter indelebilis . rep. p. . countess rutl. case . rep. see selden's titles honor. p. . nuptae prius consulari viro , impetrare solent à principe quamvis perrarò , ut nupia iterum minoris dignitatis viro ▪ nihilominus in consulari maneat dignitate . ulpian . lib. . de censibus . p. . digest . lib. . tit . . which is the common law of england saith sir edw. cook instit. on littleton . p. . tholossan . syntag. juris lib. . c. . iure gentium introducta fuit servitus . tholossan . ●yntagm . juris lib. . c. . servitus est constitutio iuris gentium qua quis dominio alieno contra naturam subjicitur . florentinus . digest . lib. . tit . . fol. . de statu hominum . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . arist . politic. lib. . c. . bestia quas delectationis causa concludimus , cum copiosius aluntur quam si essent libera , non facile tamen patiuntur se contineri . cic. . de finibus . cic. . philipp . offic. tholoss . syntagm . lib. . c. , , &c. qua sit libertas quaris ? nulli rei servire , nulli necessitati , nullis casibus , fortunam in aquum deducere . senec. epist. . & . hanc quam dico societatem conjunctionis humanae munifice & aque tuens . justitia dicitur , cui sunt adjunctae pietas , bonitas , liberalitas , benignitas , comitas , quaeque sunt generis ejusdem , atque haec itae justitia propria sunt , ut sint virtutum reliquarum communia ; nam cum sic hominis natura generata sit , ut habeat quiddam innatum quasi civile atque populare , quidquid aget quaeque virtus , id à communitate , & ea qua exposui charitate atque societate humana non abhorrebit . budaeus in pandect . p. . edit . vascos . instit. p. . pag. . sect. , , . cook on it p. . b. instit. fleta lib. . ● . . sect. . ad . libertas legibus & magistratibus suis constat & imperii certa forma . lipsius in lib. . taciti p. . cook on westm. c . p. ● . instit. fleta lib. . c. . instit. p. . nullam vilem personam natione spuriam vel servilis conditionis ad militia strenuitatis ordinem promovere licebit . fleta loco pracitato . cook instit. sect . . p . britton . fol . b. bracton . lib. . fol. ● . stat. mar. c. . fuller in westmorl . p. . in lib. . annalium . p. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plotinus ennead . . lib. . p. . a digest . lib. . tit . . de usu & habitatione . p. . b ancillae non emantur ut pariant . gloss. t. venit , digest . lib. . tit . . lib. . tit . . ex ulp. lib. . ad edict . ss . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. plotin . ennead . . lib. . p. . fuller's holy warr. c. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plotin . ennead . . lib. . p. . c major ratio in hominibus quam in angelis . rosselius in trismegist . vol. . lib. . com . . c. . p. . & vol. . lib. . c. . p. . nisi te marcia scirem tam longe ab infirmitate muliebris animi , quam à caeteris vitiis recessisse , & mores tuos vèlut antiquum aliquod exemplum aspici . senec. lib. de consol . ad marciam . vxor nomen est dignitatis , non voluptatis . digest . lib. . tit . . p. . in corpus humanum pars divini spiritus mersa . senec . ep. . arbitria bonorum & malorum ep. ● . ep. . lib. . de benefic . c. . & . de ben. c. . digest . lib. . tit . . gloss. p. . de minoribus annis . lib. . tit . . de senatus consult . macedoniano . p. . nullum bonum putamus esse quod ex distantibus constat , senec. ep . tria ex praceptione veteri prastanda sunt ut vitentur odium , invidia , contemptus ; quumodo hoc fiat , sapíentia sola monstrabit . epist. . pleas crown . p. . instit. p. . mercy the true property of a iudge . see statute of ed. . c. , . note this . eicon basil. c. . to the then pr. of wales now our most gracious sovereign . the lord chancellour in his speech . may● . . pubes ] lanugo qua maribus decimo quarto , feminis duodecimo anno circa pudenda oriri incipit , quod quia maturitatis est signum , factum est ut mas pubes sive puber vocatur , quamprimum ad generandum aptus est , & femina ad concipiendum . theophil . antecessor . lib. . institut . tit. . p. . de pupillari substitutione . edit . fabrotti . pueris pupillis dubantur tutores , furiosis & adolescentibus curatores qui res suas administrabant . erasm. in loc . theophilus antecessor . lib. instit. tit . . p. . de patria potestate . impubes constitutus in patris potestate , citari non potest verbaliter nec etiam realiter , id est , capiendo personam . bartolus digest . lib. . tit . . p. . * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. laertius in vita aristot. p. . edit . romae . gajus lib. . ad l. . tabul . digest . lib. . tit . . p. . theophilus antecessor . instit. lib. . tit . . p. . de authoritate tutorum . brechaeus ad legem . lib. de verb. signific . p. . a sanctus hieronym . ep. ad vitalem presbyterum . b brechaeus in leg. . loco pracitato . fornerius loc . pracit . p. . pubescentes herbae non mihi videntur adulta , sed lanosae , lanuginosa ; nam in veneficio quo viri qui pu●ent & barbati sunt ▪ petuntur & incantantur , majorem vim habere , plusque pollere quam leves & impuberes censebantur . turneb . advers . lib. . c. . p. . advers . lib. . c. . p. . lib. . c. . p. . lib. . c. . lib. . c. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. basilic . lib. . tit . . c. . quod illum ubi adolevisset multò fore crudeliorem existimarent , ubi mens adhuc tenera malis cupiditatum imbuta venenis , sese jam prodit , supplente aetatem malicia . fornerius ad legem . p. . de verb. signific . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . aristippus apud laertium lib. . p. . edit . romae . alciat . ad leg. . p. . de verb. signific . lib. . elegant . c. . biochaeus ad laegem . loco praecitate , proximus est quem nemo antecedit , ut supremus quem nemo soquetur . fornerius in legem candem . (a) gentilis vero & agnationem & cognationem complectitur . paulus de grad . & affinit . lib. . (b) lib. . c. . (c) lib. . c. . tholoss . lib. . c. . ss . . lib. . c. . ff . . lib. . c. . ss . . selden on this chap. p. . tholossan . syntagm . juris . lib. . c. . ss . . alciat . lib. . de verborum significat . p. . agnati sunt codem sanguine procreati , sed proximiores . forner . ad legem . lib. de verb. signific . p. . si furiosus est , agnatorum gentiumque in eo pecuniaeque ejus potestas esto . cic. . de invent. . varro lib. . de re rustic . c. . (d) budaeus in pandect . p. . * ephes. . . iura generis non possunt dirimi . bartolus digest . lib. . tit . . de pactis p. . d. ius agnationis non posse pacto repudiari non magis quam quis dicat nolle suum esse . modestinus lib. . regularum . idem dico si est cognatus . vivianus in gloss. p. ius digest . lib. . tit . . p. . cognati omnes dicuntur aequalis juris . syntag. juris lib. c. . ss . . consanguinei una massa , quilibet autem eorum residuum dicta massae grorius in locum . lorinus in locum digest . lib. . tit . p. ● . gl. c. ad proximiores primum defertur tutela a lege , quod bona tutius administrari nec melius conservari posse lex crediderit , quā ab eo qui , eadem ad se , suosque perventura aliquando speret . tholoss . syntag . iuris lib. . cap. . ss . . gen. . . gen. . . rom. . joh. c. , , & . cook . instit. p. . bracton lib. . c. . glanvil lib. . c. & , lib. . c. fleta lib. . c. . lib. . c. , . . & . phil. & mary c. . preamble . . istit . on littlet on . p. . p. . nanquam remanebit aliquis in custodia alicujus de que haberi posits suspicio , quod velit jus clamare in ipsa hareditate bracton lib. . p. . flera lib. . c. . clanvil . lib. . c. . a friend that is near , is better then a brother that is far off theatr. vita humans p. . idom p. . . . josephus antiq. lib. . c. . in hist. r. . impress . lovanii . sive id inscitia factum seve fato , agnus certe consulto in lupi sidem creditus est . idem p. . escuagia a scuto quo militare dicuntur , bracton lib. . c. . scutagiam dicitur quod talis prastatio pertinet ad scutum quod aessumitus , & servitium militare dicitur . lib. . c. . littleton sect . . cook l. . c. . p. , . entitled the statute of wards and reliefs . a statute of . car. . c. . notes on c. . p. . titles honour p. . . tholoss . syntag. juri . lib. . c. . ss . brechrus & fornet . ad leg . p de verb. sig . cic. . de invent . . ipsum scipionem accepimus non infantem fuisse . cic. de clarit . orat. . ennead . lib. . p. . neminem excelsi ingenii virum sordida dolectant & humilia , magnarum rerum species ad se vocat & extolliet , noster animus in motu ect , eo mobilior & actuosiar , quo vehementior fuorit . senec. ep. . despexit illum , quod non bellicosus vir , & pugnis affuctus ; nam cernebat illum juvenem rubicundum & pulchro aspectu , quales martiales homines esse non solent , ques radii solares & assidua desatigatio deformes reddunt . clatius in sam. . v. . romana militia mos fuit puberes primo exerceri armis , nam decimo sixto anno militabant , quo etiana solo sub custodibut agebant . servius in aentid . turncbus a'dvers . lib. . cap. . p. ● . digest . lib. . tit . p. . & lib. . in . . p. . lib. . tit . . p. . egregium virtutis apud vos efficium est , voluptates pragustare . lib. de beata vita . tubebat cos qui audicbant pictano in tabula voluptatem pulclierrimo vestiia & ornatu regali in solio sedenzem , &c. cic. . de finibus . de cleanthe . a ethic. c. . ' oi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , lib. . rhetoric . c. . ethic. c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , lib. . rhetor. c. . alcaeus & philiscus pseudo-epicuraei roma pulsi , quod essent turpium voluptatum adolescentibus autores . aelian . lib. . c. . gassendus lib. . c. . de vita & maribus epicuri . tom. . oper. invenis genere nobilis , manu fortis , sensu celer , ultra barbarum promptus ingenio . paterculus hist. lib. . p. . edit . lipsii . tom. . oper. lib. , c. . de vita epicuri . debent enim universi liberi homines , &c. secundum feudum suum & secundum tenementa sua arma habert , & illa semper prompta conservaere ad tuitionem regni & servitium dominorum suorum juxta praceptum domini regis explendum & peragendum . lambard . p. . e saxoni . statuimus & firmiter praecipimus , ut omnes comites & barones & milites & servientes & universi liberi homines totius regni nostri praedicti , habeaent & teneant se semper in armis & in equis , ut decet & oportet , &c inter leges will. . edit . twisd . gassend . tom. . lib. . exercis . paradoxorum . lege theodorerum in orationibus de provident . tom. . operum bona mens omnibus palet , omnes ad hoc sumus nobiles , animus facit nobilem , cui ox quacunque conditione supra fortunam licet surgere . seneca ep. . neminem despexeris , étiamsi circa illum obsoleta sunt nomina , & parum indulgente ad juti fortuna , sive libertini apud vos habentur sive servi sive caterarum gentium homines . erigile audacter animos , & quicquid in medio sordidi jacet , transilite : exspectat vos in summa magna nobilitas . lib. . de benefic . a cicatricum aut deformitatis nulla fit astimatio lib , . ad edict . prouinc . c. . digest . lib. . tit . de noxalibus actionibus p. . b degener est qui patris vel majorum suorum moribus non respondit , in aeneid . iiuvenis patriisnon degener●oris ovid. . de ponto . cic. lib. de provid . pro flacco . cic. divinat . plin. lib. . c. ● . proles non degener senec. ag●mem . , * illum esse praecipue probum in quo vires imaginationis rationisque prorsus intellectis formata sunt , adeo ut tota vita secundum intelligentiam peragatur , ubi non vitae praeest daemon aliquis , sed ipse deus , & scilic et divinus intellectus , tum intellectualis unitas qua est intelligentia quasi auriga caput &c. in ern●ad . plot. lib. . c. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . juliani aug. caesaris in probo . edit . cantoclari tom. . rom. aug. script . graec. minorum p. . semper esse felicem , & sine morsu animi velle transire vitam , ignorare est rerum naturae alteram partem . . de providentia . honestum propter nullam aliam . causam quam propter usum sequimur . seneca benefic . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . dion cass. lib. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , idem in severo p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , idem quod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lipsius in . epist. sever . in pandect . reliq . p. . edit . vascos . est enim approbare , efficere at probum , rectumque judicetur , id quod quis facit vel dicit . cic. in verrem . vowels descript . of england . p. adag . i hil . cent - . p. . lib. . c. . lib. . thucyddes . idem lib. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , protatto at acciperentur vel accuserentur . turneb . advers . lib. . c. ● p. . in astrol. lib. . c. . p. . & lib. . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plato in protagor . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . idem . rhetoric . c. . moral . c. . non quicquid mortale est , bonos mores facit . senec . ep. . ad attic. lib. . offis . pro muraena . offic. c. . lib. . c. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. enchyrid . lib. . c. . p. . philostratus in vita apollonii . lib. . c. . p. . actiones nostra , nec parvae sint nec audases nec improbae , lib. . de ira. hinc lipsius , nec viles minutas . que esse actiones nostras vult , incultas nimis , & audaces , media sequamur . in comment . . sect . c. . p. . note this . sequuntur à conversantibus mores & ut quadam in contactus corporis vitia transiliunt , ita animus mala sua proximis tradit . senec. lib. . de ira. p. . ego autem ( inquit cicero ) nobilium vita victuque mutato mores mutari civitatum puto , quo perniciosius de republicae merentur vitiosi summi in civitatibus viri , quod non solum vitia concipiunt sed cainfundunt in civitatem ; neque solum obsunt , quod ipsi corrumpuntur , sed etiam quod corrumpunt , plasque exemplo quam peccato nocent . cic. lib. . de legilus . budaeus in tandect . p. . b. edit . vascos . sarisburiensis de nugis curialium . lib. . c. , , , , &c. basilie . doron . book p. . of his works in fol. book . p. . . book p. . pag. . * tom. . bibliothecae magnae part . . p. . epist. . chil. . cent. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . aristophan . in pluto . dion . hist. lib. . p. , , . chil. . cent. . p. . dion , lib. . p. . rich. . c. . stamford's pleas crown . p. . magna bibliotheca patrum . tom. . p. . alex. ab alexan. lib. . c. . zuinget theatr. vit . hum . p. . luitprand ticinensis lib. . c. . a nudis dicta gymnasia scalig. lib. . poetic c. . budaeus in pandect . p. . edit . vascos . (a) lib. . de ira. nutritus in palatio contubernalis & condisispulus augustorum , non est inflatus superbia , nec alteros homines adduct a fronte contempsit . sed cunctis amabalis ipsos principes amabat ut ●tratres , venerabatur ut dominos ; ministros autem corum & universum ordinem palatii , sic sibi charitate sociaral , ut qui merit , inferiores erant officiis , se pares arbitrarentur . sanctus hieronymusde nebridio ●p , ad salvinam viduam ejus . p. . b. in pandect . edit . vascos . racchol . act. . scen. . zuinger in theatro p. . saltationem armatam curetes docuere , pyrrichen , pyrrhus , sueton. in ver. c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c lib. sept . de legibus . holingshed p. . p. . p. . . p. . p. . p. . p. , , adag . chil. . cent. . p. . chil. . cent. . p. . true nobility , whence . see sir edward waterhouse , my uncle's epistle to the earl of essex , in holingshed . p. . sarisburiensis lib. . de nugis curialium c. , , , . quanto quisquo promptior obsequio , tanto citius honoribus & opibus extollitur . tacirus . florere authoritate & gloriae . cic. ep. ad nigidium . florere exis●imatione cic. pro fronteio . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . dictum peryandri eras. adag . chil. . cent. . p. . alciat . ad legem . p. . de verb. signifi● . paulus iurisconsult . alciat . disput. lib. . c. . tholoss . syntagm . lib. . c. . digest . lib. . tit . . mandati vel contra gloss. non r●ddidis . p. . tholoss . lib. . c. . & . & lib. . c . digest , lib. . tit . . mandati p. . digest . lib. . tit . . h. dubitatio in gloss. tholoss . lib. . c. . & . & lib. . c. . qui , ultra modum , tempus vel locum à domino constitutum utitur , furtum faci● quia invito domino facit . tholoss . lib. praenotat . furtivum non est quod sciente domino inclusum est . paulus lib. . ad neratium . digest . lib. . tit . . . p. . digest . lib. . tit . . baldus digest . lib. . tit . . ad legem aquiliam . manifestas fur est , qui in faciendo deprehensus est , & juxta terminos ejus loci unde furatus est , comprehensus est . vel antequam ad cum locum quo destinarat porvenire . paulus lib. sentent . de furibus . q●asi ad manus s●ris sta●s . cic. pr● ro●cio . pro● cluentio . budaeus in pand. reliq . p. . gen. . . si liber furti coarguatur , servire cogitur . lex lyciorum apud nicolaum . lib. de moribus g●ntium . alciat . in legem . p. . plato lib. . de legibus lib. . gajus lib. . ad edit . provin . digest . lib. . tit . . p. . lance & dicebatur apud antiquos , quia qui furtum ibat quaerere , in domum alienam licio cinctus intrabat , lancemque ante oculos tenebat , propter matrem familia aut virginum praesentiam . turneb . advers . lib. . c. . a tholoss . syntag. juris lib. . c. . ss . . alciat in l●gem . de verbor . signifi . p. . luke . . joseph . lib. antiq. judaicarum . c. . grotius in luca . manifestum furtum , quod nulla alia probatione indiget . tholoss . loc● pracitato , ss . . verbum reddendi , pr● dare . digest . lib. . tit . . p. mensura justa , coacta , succussata , superfluens . grot. in locum . gajus lib. . ad edictum aedilium curulium c. . digest . lib. . tit . . in duplum condemnatur . spelman concil p. . , arist. problem . sect . . c. plato lib. . de legibus . a gellius lib. . c. . cestassavoir que nul ad judgment de la mort , si non larceny , &c. ●e ne passont deniers de sterling . mirr . justic. c. . ss . fleta lib. . c. de far●o ex pluralitate tamen , & cumule modicorum delictorum poterit capitalis scutentia generdri . idem lib. pr●●ot . instit. p. exposit. of c. . of the west . and institut . pleas of the crown c. see the statut. . h. . c. . h . c. . e. . c. . de tabula lusoria , & lusu latronum leg● turnebum advers . lib. . c. . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dion . lib. . p. . stamford . lib. . c. civ●s furibus non parcunt ; qui surti fuerit accusatus , vel levem suspicionem habuerit , inauditus suspenditur , ●ec purgandi sui tenepus datur , &c. ro●ellius in pymand . de oppidis , castris , & villis , austriae , lib. . com . . dial . . p. a fartis suspendium addidit , qud poenà nunc per europam utimur . lud. vives lib. . de causis corruptarum artium . quicquid antiqui operis ex are & murmore suit , quicquid oculos potuit delectare , sublatum aut vi revulsum ad naves deferri jussit , ut plus ornamentorum unus septem dierum spacio urbi detraxerit quam ●arbari . annorum spacio . sabellicus lib. . ennead . . lib. . c. . e● lib. . c. . nicolaus de moribus gentium apud stobaeum serm . . bonfiaius b a. gellius lib. . c. c alex ab alexand. lib. . c. d sabellic . lib. . ennead . fulgosus lib. . capite de re militari is latrociniis infamis esse , strabo lib. . latrocinari & rapto vivere solitos , sed & fortassis gentis vitium hoc fuit . alciat . disput . lib. . c. . p. . si quis to●●at de chrysippi libris quae aliena sunt , vacua illa charta relinquetur . zuingeri theatr. vitae human . vol. . lib. . p. . a cook pleas crown . instit. p. . bree●wood . lib de n●mmis iudaeorum c . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . waserus lib . de nummis he braorum c. . libertini sunt qui ex justa servitute manumissi sunt . gajus lib. . instit . marcianus lib. . instit. digest . lib. . tit . . p. . tholoss . syntag. lib. . c. . ss . s. in notis ad lib. . controv. senecz , p. . tholoss . lib. . c. . p. . de rebus & feudis . & lib. . c. . ss . . lib. . c. . ss . . lib. . c. . ss . , . lib. . c. . ss . . lib. . c. . ss . . supersedeo , inquit , te habero civem tanti muneris impium astimatorem , nec adduci possem ut credam urbi utilem quem domi scclestum cerno . abi igitur & esto servus , quoniam liber esse nescis . valer. max lib. . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sanct. chrysost. apud stobaeum serm. . p. , ipsa respubl . quam ingrata in optimos , & devotissimos sibi fuerit ; camillum in exilium misit , scipionem dimisit , exulavit post catilinam cicero , diruti ejus penates , bona direpta , factum quicquid victor catilina fecisset . senec. lib. . de benefic . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . xenophon . lib. . de instit. cyri , p. . & . ier. . . sect. . c. . h. . c. . corpora omnium constituit vniariorur● , lupinariorum , caligariorum , &c. omnino omnium artium , hisque ex sese defensores dedit . aelius lamprid. in severo , p. . tandem in hoc convenerunt communiter , ut regi nunciaretur ex parte vniversitatis quod negotium dilationem caperet . m. paris in h. p. . tholoss . lib. . c. . ss . . lib. . c. . ss . . lib. . c. . ss . . lib. . c. . ss . . lib. . c. . ss . . digest . lib. . tit . . ss . . p. . lib. . tit . . p. . bartholus digest . lib . tit . . p. . digest . lib. tit . . p. . lib. . tit . . p. . & lib. . tit . . p. in marg. forner . in legem . p. . & in legem . p . a choppinus lib. ● . de d●manio francia , p. . meritoria artificia sunt ha●tenus utilia , si praparant ingenium , non detinent . ep. . an tu quicquam in istis credis boni , quorum professores turpissimos omnes ac fla ●tiosissimos cernis . idem codem loco . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , lib. . de moribus c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . lib. . cap. . ' h 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , lib. . metaph. c. . tamdiu enim istis immorandum est , quamdiu nihil animus agere majus potest . rudimenta sunt nostra non opera . quare liberalia studia dicta sunt vides , quia homino libero digna sunt ; caterum unum studium vere liberale est quod liberum facit , hoc sapientia ; sublim● , forte , magnanimum ; catera pasilla & puerelia sunt . senec . ep. . * in muscei usis , p. . lege muretum in ep. . senec. p. . edit . mag. a i. sarisburiensis lib. . c. . de nugis curialium , & lib. . c. . quanta verborum nobis paupertas , immo egestas , nunquam magis quam hodierno die intellexi . ep. . cassanaeus catal . gl. mundi , p. . itasentio & saepo disserui latinam linguam non mod● non inopem ut vulgo putarent , sed locupletiorem etiam esse quam graecam . de fiv . . sir ed. cook preface to the re● ipsum etiam idioma normanni tantum abhorrebant , quod leges terrae , statutaque anglicorum regum lingua gallica tractarentur : & pueris etiam in scholis principia literarum grammatica gallice , ac non anglice traderentur , modus etiam scribendi anglicus omitteretur &c. ingulphus apud seldenum in c. . solis venationibus legiones frequenter exercebat . senatus eum tantum timait , ut vota in templis publice , privatimque , mulieres etiam cum suis liberis facerent , ne ille unquam urbem romanam videret ; erat enim ei persuasum , nisi crudelitate imperium non teneri . julius capitolinus in vita maximini p. vnde mos tractus sit , ut proficiscentes ad bellum imperatores , munus gladiatorium & venatus darent . idem in maximo & balbino p. a lib. , c. . de nugis curial . quomodo ergo dignus est vita , qui nihil aliud novit in vita , nisi vanit atis studio saevire in bestias . sarisbur . lib. . c. . de nugis curialium . nec canes nec aves ad venandum 〈◊〉 habere agricolae , ne ab agricultura 〈◊〉 tur aut divertantur . joh. de platea in i domin . cap. de agricolis lib. , cass. catalog . gl. m. p. . lege constitutiones canuti regis de fores●a . . eliz. c. vtinam audiretur à nostris , ut saltemin provectio● aetate nugis suis reipub . scria anteponerent . lib. . cap. . ad finem . ioca & seria contraria . cic. . d● finibus . in praf . lib. , in eutrop. trist. , prov. . v. . lam. v. proprie ludus in facto , ut jocus in verbis non seriis . l●ur . valla lib. eleg. c. l●do & j●co uti quidem licet ut somno & cateris quietibus . ita si gravibus caterisque rebus satisfecorimus . lib. . offic. pessimum est genus homicideis , sibi manus injicere ▪ quod is facere videtur qui existimat perpetuo animi & corporis motu afftigere debere . tholoss . syntag . juris lib. . c. . ss . si iocus est ludus honestus a rebus series , quae animum intendunt , requies est , & velut induciá , a quibus nunquam graves & cordati viri loco & tempore commodo abhorruerunt . tholoss . syntag. juris loco pracitato . idem . lib. ● . c. . de alca lusu vetito . nonne satis improbata ost cuju●que aris exercitatio , qua quantum quisque doictor , tanto nequior aleator quidem omni● hic est . m●ndaciorum siquidom & perjuriorum mater est alea , & aliena concupiscentia sua prodigit & nullam habens patrimonii reverentiam ; cum illud effude●i● , sensim in furta dilabitur & rapinas . . sarisburiensis lib. . c. inter seria sobrii germani aleam exercent tanta lucrandi perdendique temeritate , ut cum o●nia defecerunt , extremo ac novissimo jactu , de libertate ac de corpore contendant . de moribus germanorum . quoniam usu compertum est , ut alea ludo , saepe surta , raepina● , fraudes , blasphemias , aliaque id generi● flagiti● proficisci perhibeant taxillis aut alea ludi . tom. . in mediolan . concilio primo . p. . sarisburieus . de nugis curialium . lib. . c. , & . c. . vol. concil . gener. tholoss . lib. . c. ● tom. . concil . p. . canon . synod . tom. . concil . mediolan●nse . p , . concll , aquileiens . . tom. . p a tom. . p. . turnebus advers . lib. . c. . & lib. . c. . &c. , lib. . c. . . pollux lib. . c. . sarisburiens . polycratic . lib. ● . c. . & . ad pilam se , aut ad tal●s , aut ad testeras se conferens , homines labore assid●● & quotidiano assueti cum tempestatis causa oper● prohibentur . lib. . de oratore lib. . paedagog c. . a sipontious & tholoss . lib. . c. . pilae proprietas est cum aqualitat● , aequalitatem hanc accipe quam vides in lusoria pila . senec. nat. quaest. lib. ● . p. . b de benefic . c. ● . turneb . advers . lib. . c. . the terme hurly-burly , whence probably originated . lev. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . hist. eccles. lib. . c. . dion . lib. . p. , & . see the preamble to the stat. e. . e. . ordine placitandi servato servatur jus . cook on littleton , p. . sect . . little. cook on● . . magna charta . scobells collections , p. , . sir ed. cook preface to the ● report . hollingshed p. . sir henry hobars and his companions iac. in banco regis . see preface to in. stit . on littleton . note this well . concorde● sermo tuus cum vita , ille promissum suam implevit , qui & cum videas illum & cum audias , idem est ; non delectent verba nostra sed prosunt . sen. lib. . de i●a . instit. p. . bracton . lib. . fol. . fleta lib. . c. . qua consilio totius regni sunt approbata , ea quidem mutari non poterint abseque eorundem coutraria voluntate . fleta lib. . ● . . cook on littleton . sect . . p. . b. lib. . c. , of escuage . preface to the report . see them in the instit. how probably the inns of court first began . qameunque paertem rerum divinarum , humanarumque comprehenderis , in ingenti copia gerendorum , discendorumque fatigaberis . haec tam multa , tam magna ut habere possint , liberum hospitium . non dabit se in haes augustias virtus , laxum spacium res magna desiderat . epist. . p. . ad fletam dissertatio . c. . p. . inter se , ita miscendae sunt , & quiescenti agendum & agenti quiescendum est ; cum rerum natura delibera , illa dicet tibi se & diem secisse & noctem . seneca ep. . nunquam hanc auditorum partem videbis , cui philosophi schola diverseri●m otti est . senec . ep. . ego quidem priora illa ago ac tracto quibus paratur animus , & me prius scrutor , deinde hunc mundum . e● pist . . sola sublimis & excelsa virtus est nec quicquam magnum est , nisi quod simul & placidum . seneca lib. . de ira. note this . ii. chap. mag. charta . p. . institutes . part . actor vel reus in judicio contentioso , non admittuntur , ut si feria sacrae & solennes sint , quibus jura edixerunt silere lites . tholoss . syntag . lib. . c. . ff . instit. on littleton . lib. . belli gallici . . tuscul. . . de legibus . cic. pro plancio . cic. . de inventione . cic. in salust . stow's survey , p. . ¶ in my defence of armes and armony , printed . the authors zeal for london . consol. ad helviam . lipsius in notis ad consol. helviae . p. . in folio . civitas non potes● stare sine iurisperito , cum leges tendunt ad conservandam rempub. civitatis & hominum congregationem . baldus apud cassanaeum catal . gl. mundi p. . hospitiorum nomine domini tenentur praebere hospitibus , qua habitationis causa tantum necessaria sunt . tholossan . lib. . , . order of lincolns & p & m. an. . lib. . p. . lib. . lincolns inn. fol. , , , . idem eodem lib. p. , , , . & lib. . p. . carter analys . of heraldry . stow's survey . p. . see orders for inns of chancery in lib. . lincolns inn , p. , , , , , &c. lib. . lincolns inn. fol. . glory , generosity . p. . cic. . verr . de finib . de finib . si vis vacare animo , aut pauper esse aportet , aut pauperi similis ; non potest studium esse salutare sine frugalitatis cura . frugalitas autem paupertas voluntaria est . senec. ep. . in his character of some kings of england . p. servus , perpetuus mercenarius est . lib. . senec. de benefic . p. . sir. henry wotton . p. , . senec. ep. . primo jacobi , lincolns inn atb. . p. . lib. . lincolns-inn p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . plato lib. . de repub. euphrades philosophus apud cressolium mystag . lib. . c. . lucianus in bis accusatus . generosi animi & magnifici est , juvare & prodesse ; qui dat beneficiae , deos imitatatur ; qui repetit , foeneratores . lib. . de benef. p. . philo judaeus . lib. de nobilitate . p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . idem lib. praecitat . ad initium . sint hi reges , quia majores eorum non fuerunt , quia pro summo imperio habuerunt justitiam , abstinentiam , quia non rempublicam sibi , sed se reipubl . dicaverunt ; regnent , quia vir bonus proavus eorum fuit , qui animum supra fortunam gessit . senec . lib. . de benefic . p. . philo. lib. de nobilitate . p. . is hercle posteritatem deserit , qui antiquitati addictus nihil suae atati concedit . petrus crinitus c. . de honesta disciplina . non est philosophia populare artificium , nec ostentationi paratuni , non in verbis sed in rebus est . senec . epist. . cujus ( hospitii juris ) cum vestibulum salutassem , reperissemque linguam peregri nam , dialectum barbaram , methodum inconcinnam , molem non ingentem solum , sed perpetuis humeris sustinendam , excidit mihi fateor animus . spelman in pr●oemio ad gloss. non est quod admireris animum meum , adhuc de alien● liberalis sum . senec. ep. . qua , sive contineas nihil . tacitam conscientiam juvant , sive proferas non doctior videb●ris sed molestior . lib. . de brevit . vita . p. . pauperes à parvo lare . no atturney to be admitted into any houses of law. order of lincolns inn. ● , lib. . fol. . p. & mar. tu si filios sustuleris , poteris habere formosos , poteris & deformes ; & si fortasse tibi multi nascentur , esse ex illis aliquis tam servator patria quam proditor poterit . senec. consol . ad marciam . p. . haec sanctitate moru● effecit ut puer admodum dignus sacerdotio videretur . senec . consol. ad marciam . c. . p. . lipsius in senec. consol. ad marciam . p. . nobiles adolescentulos avitis ac paternis sacerdotiis recoluit . tacitus . holingshed . p. . sic ●v●nit mihi , quod plerisqu● non suo vitio ad inopiam reda●tis ; omnes agnoscunt , nemo succurrit . sen. ep. . non suo vitio ] sed temporum fortuna judicat callide in aula sibi tempus perire . lipsius in not. ad ep. . p. . in his life , p. . . in his letter to the duke of buckingham , p. . rhenanus in notis ad senec. ludum . p. . * an old order in lincolns-inn , none to come to the bar under . years standing . lib. , temps e. . p. . plin. lib. . c. . . iuris praecepta sunt tria , honeste vivere , alterum non ladere , jus suum unicuique tribuere . bracton lib. . c. . habes sharissime qua possunt tranquillitatem tueri qua restituere , qua subrepentibus vitiis resistant . illud tamen scito , nihil horum satis esse validum , rem imbecillam servantibus , nisi intenta & assidua cura oircumeat animum labentem . ] senec. lib. de tranquil , ad stuem . cantus est modulatio , se● fluxus & transitus vocis a gravi in acutum , & vice versa , per intervalla concinna , qui aptus est ad animi latitiam , dolorem , aut alium effectū exprimendum vel commovendum . mersenius harmonicorum lib , p. . in tabul , proposit . a canere grandia ●late , jucunda dulciter , & moderata leniter . quintil. lib. . c. . . omnis cantus certis pthongis , intervallis & temporibus constat . mersenius lib , , harmonicorum p. . musica ad degendum recte in otio vitam , moderandosque animorum motus , leniendasque perturbationes ediscitur , qualis est maxime qua fortium virorum gesta , divinaque landes decantantur ; nihil certe cognitione ejus utilius , nihil homini libero convenientius . lib. . de educatione liberorum . c. . tom. . biblioth . magnae patrum . p. . a suetonius in nerone c. , &c . forte inter epulas aulicis ( uti mos est ) canentibus . aurel , victor c. . de caesaribus p. ▪ none hate musique , but rude mindes . cicero de divinat . . cato c. . columella lib. . c. . . quia cum pascuntur , necesse est aliquid ex ore cadere & terram pavire . becman in verbo . (a) ac per urbem ire canentes carmina tripudiis solennique saltatu jussit . lib. . ab urbe . (b) sed illum tot jam in funeribus reipublica exuliantem & tripudiantem legum si possit laqueis constringeret . pro sestio . c lib. . c. . turneb . advers . lib. . c. . & lib. . c. . socrates cum pueris ludere non ●ruboscit . senec. de tranquil . d lib. . c. . ad numeros satyri movere bathylli , persius . et scipio triumphale illud & militare corpus movit ad numeros , non milliter seiufringens ut nunc mos e● etiam incessu ipso ultra mulierum mollitiem fluentilus , sed ut illi antiqus viri solebant , inter lusum & festa tempora virilem in modum tripudiare , non facturi detrimentum etiamsi ab hostibus suis spectarentur . senec. lib. de tranq . feria dicuntur dies quibus cessatur ab opere aliquo , sed per extensionem dicuntur feria sex dies post dominicam , quos nomine planetarum & idolorum dicebant ethnici , lunae , martis , &c. tholoss . lib. . c. . de feriis festisque . feria dicta sunt dies in quibus ab aliquo opere vacui , dabunt hominos , vel dar● poterunt operam aliis negotiis quales sunt feriae nundinarum , &c. bruno lib. . de ceremon . c. . lil. gyrald . lib. de ann. & mensibus , p. . apud stobaeum sermone de avaritia . lib. . syntagm . juris . c. . lib. . c. . ss . . lib. . c. . ss . . (a) lib. . tit . . de feriis & dilationibus & diversis temporibus . (b) in pandect . prior . p. . (c) sigonius in fast. & triumph . romanor . p. . . (d) suetonius in claudio . c. . plutarchus in moralib . per totum opus . legum conditores festos instituerunt dies ut ad hilaritatem homines publicè cogérentur , tanquam necessarium laboribus interponentes temperamentum . senec. lib. de tranquil . p. . cato vino laxabat animum publicis curis fatigatum . eodem loco . lipsius in notis ad lib. de tranquillit . feriarum festorumque dierum ratio in liberis requietem habet litium & jurgiorum , in servis operum & laborum . cic. . de legibus . festi dies erant in quibus vel sacrificia diis offerebantur , vel dies diurnis epulationibus celebrabantur , vel ludi in bonorem dierum fietant , vel feriae observabantur . nonius in verbo . de oratore . . terence adel. , , . psiud . . . casina . . (e) de claris orator , . cic. . de invent. de orator . . . nihil earum rerum scire , quae antequam nasceris factae sunt . hoc est , semper esse puerū , cognoscere vero res gestas antiquitali , exemplorumque memorabilium habere notitiam utile decorum . laudabileque ac prope divinum est . cic. see . book lincolns-inn . p. . nihil enim moribus hujus atatis publicum , praeter aerem & pluviam censetur . budaeus lib. . de asse , p. . edit . vascos . tacit. lib. . hercul . fur. . . propertius lib. , eleg. . lucret. lib. . cavendum vero ne etiam in graves inimicitias convertant se amicitiae , ● quibus jurgia , maledicta , contumelia gignuntur . cic. de amicitia . jacob. c. . seld. lib. d● syu●driis judzorum . lib. primus minor hosp. lincolns . inn. p. . lib. eodem loca pracitat● . lib. . p. . cor. . v. . the manner of corporation . the elections and other ordinances concerning the same . the exercise for the learning of the law , and first of moting . reading of the law. exercises for th● latine and french tongue . rules and orders to be kept in the mouse . * revive i suppose it ought to be , but it is ruyne in the copy . that what sorts and degrees the whole fellowship and company of students of the law is amongst them divided . benchers . v●ter-barresters , inner-barresters . the order and exercises of learning . the exercises of learning in the vacation . the manner of reading in the inns of court. lent-vacation . the ordering and fashion of motying . exercises of motes in the inns of chancery , during the vacation . the ' exercises of learning in the terme time . the exercises of learning in the mean-vacation . the manner of christmas , used amongst them . the manner of their parliament , or pension . the officers , and their wages . the diet of the house . fol. , , . lord coventry's speech creation of serjeants carol. . anno . sir edw. cook instit. on stat. de milit. p. . the author not ashamed to acknowledge his defects . verr. . lord coventry's speech in chancery . . car. . anno . at the creation of serjeants . holingshed p. . stow p. . b idem p. . c holingshed . p. . d stowes survey p. . e holingshed . p. . f idem p. lib. . hospitii lincolus inn. p. , , . cic. . verr. celsus lib. . c. . agellius lib. . c. . ut enim insirmitas est puerorum , & ferocitas juvenum , & gravitas jam constantis atatis , sic senectutis maturitas naturale quiddam habet quod suo tempore percipi debeat . cic. de senect . . a cic. sulpitio . lib. . . . b de clar . oratorib . . c pro caelio , . d c.i. in catil . . maturare , accelerare , ita ut adhibeatur industriae celeritas & diligentiae tarditás ex quibus duobus contrariis sit maturitas , ut neque aliquid citius , neque serius fiat . cic. . in catil . . speech at the call. . car. . anno . cook instit. p. . upon the stat. west . c. . ossirium cancellarii est sigillum regis custodire simul cum controrotulis suis de praficuo regni . flera lib. . c. . see sir. ed. cook instit. c. . o● the court of chancery . termin . pascha in com. banco crook part . reports p. , . part . crook's reports p. , , , , . lord coventry's speech creation serjeants . car. . * viris claris permisit ut eodem cultu , quo & ipse , vel ministeriis similibus convivia exhiberent . julius capitol . , . edit sylb. cum inter suos convivaretur , aut ulpianum , aut doctos homines adhibebat , ut haberet fabulas literatas , quibus se recreari dicebat & pasci . aelius lamprid in severo p. . edit . sylb. lib. . hospitii lincolns inn p. , , , & seq . die quidem dominico mercata celebrari , populique conventus agi , nisi flagitante necessitate , planissima vetamus ; ipso praterea die sacrosancto a venatione & opere terreno prorsus omni quisque abstinete . inter leges eccles. canuri c. . spelm. concil . p. . see the statute . car. c. . deipnos . lib. . p. . . in verr. lilius gyraldus lib. de annis & mensibus p. . festum quiequid latum & feriatum . nonius . lavamur & tondemur & convivimus ex consuetudine . quintil. lib. . c. . a gen. . . b gen. . . c. . v. . c . v. . d iud. . . kings . . king. . . hestar . . . advers . lib. . c. . moral . p. . . . . . . . . . . . . . . . . . . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . symposiacon lib. . p. . edit . paris . convivia agitant & ampla & assidad , it a fere patentissimis locis ut sexcenteni simut discumberent . id claudio c. . e sueton in augusto c. . f lamprid. p. . edit . g vopiscus p. . sylburg . (h) jul. capitol . . c. . (i) lamprid. in severo . p. . (k) j. capitol . p. . (l) genial . di●rum . lib. . c. . p. . hollingshed p. . stow's survey p. . e. rotul . turris london . loco codem . m. paris . p. . stow's survey , p. . holingshed p. . stow's survey p. . . legum conditores festos instituerunt dies ut ad hilarihomines invitarent varius nobis sermo fuit , ut in convivio nullam rem usque ad exitum adducens , sed alii aliunde transiliens . ep . (m) tibullus lib. . eleg . propertius epigram . . lib. . c. . lib. . cic. . verr. . lib. . c. . holingshed p , . . . * . n p. . . . o p. . . . fulgentius lib. . mythologia . turneb . advers . lib. . c. . gen. . ● . gen. . . gen. . . exod. . . exod. . . lev. . . c. . . c. c. . . c. . . c. . . c. . . numb . . . c. . . c. . . deut. . . &c. heptas , coleber apud persas numerus . grot. in loc . drusius in cap. . v. . ezr. . . spelman in gloss. ad vocam firma . cook on stat. de militibus . instit. p. . esther . . grot. in loc . ex herod . lib. . plutarchus in questionibus romanis , p. . eutrop. lib. . breviarii . p. . ad initium . messala corvinus , lib. de augusti progerie p. . dedit annulum in signum potestatis quam ci faciabat , cujas moris exemplum habes . gen. , . grot. in loc . esther . . . (a) sueton in j. caesare . p. . budaeus in pandect . p. , , . edit . vascos . (b) fl. vopis● . in aurelian . ad sinem vita . (c) lib. . in valentin . p. . (d) turneb . advers . lib. . c. . p . lib. . c. . & lib. . c. . (e) sit annulus tuus signatorius non ut vas aliquod , sed tanquam ipse tu . cic. in quae verba turnebus . ne passim sinat annulum suum signatorium à quovis , ut domestica vasa tractari , sed eo solus utatur . advers . lib. . c. . p. . alciat ad legem . p. . brechaeus loco codem . turneb , advers . lib. . c. . majores nostri imperatores superatis hostibus , optime republ. gesta , scribas suos annulis aureis in concione donarunt . cic. . verr . pat. . h , . parte prima memb . . in turri . . lond. part . . m. . . m. . claus , ● m. . m. . m. . m. . m , . m. . . m. . m. . m. . (a) lib. . c. , . si belli homunculi collecti . . si lectus locus . si tempus lectum . . apparatus non neglectus . turneb . advers . lib. . c. . . h. . c. . h. . c. h. . c. . r. . c. . spelm. gloss. p. . e. . c. . solum iudices scaccarii vocamus barones ex prisco gallorum usu , qui iudices & magistratus quoslibet barones appellabants & hoc quidem in causa est , quod cateri apud nos iudices non sunt dicti barones quia sola hac curia è gallia scilicet normannia suum ad nostra duxit specimen . spelman . gloss. p. . instit. p. . * iustitiarios suos in scaccario . fleta lib. . c. . crook part . report . carol. term. mich. p. . barones ] eo quod suis locis barones sedere solebant . fleta lib. . c. . capitalis baro scaccarii locum illic obtinet capitalis iustitiarii angliae , cujus ●lim in hac curia sedes erat primaria , maximus hic utique baro , & ex potentioribus regni magnatibas . spelman in gloss. ad vocem bar● . instit. p. . instit. sect . . instit. p. . lib. . ● . . edit . seld. officium camerariorum in recepta consistit in tribus , clav●s arcanum bajulant , pecuniam numeratam ponderant , & per centenas libras in sorulas mittunt . ockam cap. quid , sit scaccarium . nihil tamen aeque oblectaverit animum quam amicitia fidelis & dulcis ; quantum bonum est , ubi sunt praeparata pectora in qua tuto secretum omne descendat , quorum conscientiam minus quam tuam timeas , quorum sermo solicitudinem leuiat , sententia c●nsilium expediat , hilaritas tristitiam dissipet , conspectus ipse delectet . lib. de tranquil . p. . amicos primos habaerunt & secundos nunquam veros . lib. . de benesic . p. . lord coventry's speech at creation of serjeants car. . anno . * r. . c. . r. . c. . h. . c. . h. . c. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 athenaeus lib. . deipnos . p. . the grace of feasts . birretum quasi bis rectum , quia his rectum decet esse philosophum & doctorem , scilicet , in docendo & operando . luc. de penna murileg . lib. . cassanaeus catal. gl. mundi . p. - . . salmasius in notis ad tertull. lib. de pallio . p. , . in signum carentia sordium , quia ubi angulus est , ibi sordes esse dicuntur . cass. catal. gl. mundi . p . . luc. de penna lib. . cap. de professoribus . cass. l●co prae●itato . cass. lo●● pracitat● , p. . note this well . digest . lib. . tit . . gl . b. contradicere p. . lib. . c. . lib. . tit . . ex quibus causis lib. . tit . remember this o my soul , and be thankeful . advocati salarium deb●t dari pro facundia ejus & fori consuetudine . digest . lib. . tit . . de postulando a. . & lib. . tit . . de pactis , p. . nunquam tuta est liumana fragilitas ; & quando virtutibùs crescimus , tanto magis time ▪ re debemus ne de sua limite corrua ▪ mus . sanctus hieron . in c. . joelis . lord coventry's speech creation serjeants . car. . anno . instit. c. . of the king's bench. p. . in prooemio digest . p. . instit. p. , ● . preface to the instit , de liabitu quo ●● oportet extra ●r●om . epist. . spelm. gloss in vocem birretum . capital quod sacerdotula nunc in capit● solent baber● . varro lib. de lingua latina . advers . lib. . c. . vt rasuras sive coronas capitum bujusmodi cappis defenderent . cl●rici nonnis● in itinere constituti unquam aut in ecclesiis , aut ●oram praelatis suis , aut in conspectu communi hominum publice infulas suas , vulgo coyffos vocant , portare aliquatenus andeant vel prasumant . lindwood . p. . b. . matth. paris . p. . in h. . pagnin . in verb● p. . primum 〈◊〉 quod ante se aliud habere non potest . reg. juris civil , digest . p. . fuller church history . part . . p. . iustitiarii r●gis jurati , sunt omni exceptio●e majores . leg● cook . instit . p. . . fleta lib. . c. instit● c. . of the kings bench p. . . . instit. jurisdict . of courts . c. . p. . britania p. , of the courts of england . & carol. . iustitiarii . rep. cook temps car. . cambden's britania of the courts of england . p. . p. . cook instit. p. . p. . rep. p. . . . pat. h. . parte prima m. h. . parte prima m. . h. . m. . spelm. gloss. in verbo iustitiarii . cook instit. p. , p. . e. . fol. . of the court of king's bench. instit. p. . resolut . judges iacob . upon the stat. articuli cleri . instit . p. . instit. p. . instit. c. . of the kings bench fol. . (a) lib. . e. . fol. . preface to his . part . rep. temps car. . p. . cook on littleton sect . . p. . instit. c. . p. ● . instit. p. . c. . of the king's bench. car. sir r. h. serjeanted octob. . & octob. . advanced . crook rep. so idem p. . idem . p. , . instit. c. . court of chancery . cambden . brit. p. . what the chancellour is . instit. c. . of the court of chancery . p. . ad gubernacula reipub. sedere . cic. pro roscio . persarum satrapae pro dignitate cujusque sedes habebant apud regem , idque ex cyri instituto . drusius in c. . esther . ier. . , . ille ergo possidet qui sedere , id est , sedem ponere potis est à sessitando . alciat . ad legem . p. . de verb. signific . de orat. . cic. de nat . deorum . plutarchus lib. . sympos . p. . edit . paris . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . idem p. . ioel . . zeph. . . rev. . . c. . . c. . , & . instit. c. . p. . voluntas regis per iustitiarios suos & legem suam . r. . fol. . instit. p. . m. paris p. . . pag. . crook rep. regni carol. . p. . vet. magna charta . . chap. m. charta . instit. c. ● . p. , . hac est voluntas regis per iustitiarios suos , & per legem suam , & non per dominum regem in camera sua vel aliter . r. . fol. . instit. p. . episcopatus est sacerdotium completum & perfectum , inferiores ordines sunt antececedentia ad sacerdotium ex congruitate , sed non ex necessitate . durandus lib. . dist . . q. . art . . p. . e. . . instit . chap. p. . instit. c. . of bribery p. . m. paris p. . romani saturnalibus pileum gerebant , aliis diebus nudo capite erant . turneb . advers . lib. . c. . sanctus hieronymus ad fabiolam . lib. de veste sacerdotali . lege salmasium in tertul. lib. de corona militis . turneb . loco praecitato . rev. . . cunxus lib. . c. de republ. hebraeorum in tom. . critic . bibl. p. . spelm. in gloss. p. . capapro scrinio ad conservandas reliquias . idem codem loco . tunicas neque capitia neque strophias neque zonas , &c. lib. . de vita . pop. romani . penulata vestis quae nebuloso & pluvioso tempore supra tunicam assumitur loco pallii ad arcendas a corpore pluvias . alexandrum constituisse ut senes penulis intra urbem frigoris causa uterentur , quum id vestimentum itinerarium aut pluvia fuisset . lampridius in severo . (a) cic. ad attic. lib. . ep. . lib. . c. . quantum humilitatis putamus cloquentiae attulesse penulas istas , quibus astricti , & velut inclusi cum judicibus fabulamur . in dialog . orator . matt. paris in vitis . p. , . observandum est interim has cappas chorales olim pellibus ●ariis fuisse furratas , suffultas , & duplicatas , ut dicimus nunc , lineatas . gloss ad matth. paris in voce cappa . milites cappati cappis regiis , nihil praeter camisiam de sacco , calceos de bove , & capam de cilicio secum gerant . m. paris . p. . cod. theodos. lib. . tit . . spelm. gloss. in collobio . morientur autem aut spatici , aut apoplectici , aut collobiet . lib. . c. . ovid . amor. eleg. . salust . . catil . suidas in verbo . lib. . de lingua latina . quaeramus quid optime factum , non quid usitatisimum . & quid nos in possessione felicitatis aterna constituat , non quid vulgo . veritatis pessimo interpreti , probatum sit . vulgum autem tam chlamydatos quam coronam voco ; non enim colorem vestium quibus pratexia corpora sunt aspicio , oculis de homine non credo , habeo certius meliusque lumen , quo à falsis vera dijudicom . senec . de vita beata . c. . (a) fornerius ad legem . p. . aeneid . . . valer. lib. . de crasso . cum ad bellum exit imperator ac lictores mutaverunt vestem & siqua incinnusrunt , dicitur proficisci paludatus . varro lib. . de lingu . latina . breviarli lib. . p. . edit . sylburg . xiphil . epitom . dionis in caro caligula . p. . e 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . in vitellio . p. . in severo . p. . in caracalla . p. . herodianus in severo . p. . idem in caracalla . p. . (a) herodian , lib. . in maxim. p. . (b) zosimus lib. . p. . (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in cómmodo p. . cassiodor . in chronicis . p. . edit . sylburg . jornandes lib. . de regnor . & tempor . success . p. . xiphilinus in epist. dionis , p. . statua scipionis cum chlaveyde cic. pro rabirio postbumo . humeris rempub. sustinere . orat. pro flacco . vt comitia suis , ut dictitabat , humeris sustineret . cic. pro milone . * isaiah . . c. . . quamuis puer sit habet humeros aptet and imperium sustinendum . forner . in is. . . grotius in ezech. . . tunicam polymitam ex variis liciis confectam , tunicam figuratam , & pictam . fagius in loc . omne ovum volucrum bicolor , lib. . nat. hist. c. . iudges . . sam. . . ezek. . . . c. . . psal , . . quod in festis ante altare sternunt in pavimento stragulum rite vocabimus . * valla lib. . c. . dico te maximum pondus auri & argenti , eboris , purpurae , plurimam vestem melitensem , plurimam stragulam , &c. cic. . vetr . . & . (a) liv. . belli maced . . cic. pro lege manilia . cic. . de finibus . flos italiae , firmamentum populi romani . ornamentum dignitatis . cic. ● . de finibus . our chancellour is worthy of admiration , even for this , which is a publique spiritedness well becoming a gentleman . orat. pro milone orat. . in catilin . orat. pro domo sua . a good monition petrus crinitus lib. . c. . de bonesta disciplina . not sumus apud quos usque udeo nihil ante mortem etiosum est , ut si res patitur non sit ipsamors otiosa . seneo . de otio sapientis . p. . non potest aliquis judicare in temporalibus , nisi solus rex vel subdelegatus . fleta lib. . c. . sine warranto [ regis ] jurisdictionem non habent neque correctionem . lib. . c. . de iustitiariis de banco . psal. . . psal. . . psal. . . psal. . . cum indulget judex indigno , nonne ad prolapsionis contagium provocat universos ? fleta lib. . c. . fleta lib. . c. . de diebus constitutis in banco . * instit. on c. . of stat. wesim. p. . selden notes on this chapt. pro ipsa subsiantiola cogebatur ille panperculus multis diebus scholas exercens , venditis in pervisio libellis , vitam famelicam & codrinam protelare . m. paris p. . et caveat sibi [ rex ] ne in sede judicandi , qua est quasi thronus dei , quenquam loco suo substituat insipientem & indoctum , corruptibilem vel severum , ne pro luce ponat tenebras , & manu indocta modo furioso gladio feriat innocentes , culpabilesque prece vel precio utetur illegitime reddere quietos , ne per malitiam , vel ejusdem substituti imperitiam , simul cum ipso aterno luctus maesiitiam sibi comparet . fleta lib. . c. . lib. . serm. domini in monte. lib. de vera religione c. . non eadem oft sententia tribunalis ejus & anguli susurronum , multae hominibus viae videntur justa quae postea reperientur p●va , sanctus hieron . in epist. ad virgines hermonenses . studium est animi asiidua & vehemens ad aliquam rem applicata magna cum voluptate occaepatio . cic. . de inventione . quid tam populare quam otium , quodita jucundum est , ut & vos & majores vestri & fortisimus quisque vir , maximos labores suscipiendos putet , ut aliquando in atio posiit , esse , praesertim in imperio & dignitate . idem codem loco . a good employment of old age . militum christi perfectio est exutā mentem habere a eunetis terrenis negotiis & tumultu seculi . sanctus hieron . com. in c. . lamentat . tom. . oper. * anno . e. . holingshed p. . p. . instit. p. , & chapt. . lib. . c. . good iustice administreed in england . eccles. . . speech white-hall . . p. of his works . nominem dioclesiane auguste prope magnorum virorum optimum & utilem filium reliquiste satii claret , denique aut sine liberis viri interierunt , aut tales habuerunt , ut melius fuerit de re bus humanis sine posteritate decede●● . lege plura apud aetium sparrianum in severo . p. . edit . sylburgii . preface to littleton . iob. . . ier. . ult . & . ier. . . prov. . . ps. , ● . prov. rot. parl. e. . rot. . m. . instit. c. . of chancery . p. . barones dixerunt posteri quos antiqui heroes & proceres . spelm. in voce baro. pag. , , , , , , , , , , , , , &c. leaf next after the epistle to the report . ps. . . . offic. senec. in herc. furent . . inclyta justitia religicque ea temipestate numa pompilii crat . lib. . ab urbt. prov. . . prov. . . instit. c. . king's bench. p. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 acts. . . zelari significat amulari , cupide aliquid imitari , vehementer amare , adeo ut nullam amoris in partem admitti patimur . lib. . aeneid . lib. . . v. fluctuari animo rex putabatur , & modo suum modo parmenionis consilium expendere . curtius . quod sine nervis & articulis huc & illuc se habet . autor ad herennium lib. . . lib. . c. . . phil. . . in arte . de senibus . maximum remedium irae dilatio est . lib. . de ira. p. . seneca lib. . de ira. p. . commentar in loc . p. . * lib. . de ira. p. . alciat . in leg . . fornerius in leg. eandem . p. . . fornerius loco pracit . fornerius . loco praecitato . in pecuniariis causis omnis dilatio singulis causis plus semel tribui non potest , in capitalibus autem reo tres dilationes , accusatori dua dari possant , sed utrinque causá cognita . paulus lib. . sent . digest . lib. . tit . . p. . digest . lib. . tit . . p. . in margine . digest . lib. . tit . . p. . de judiciis . & p. . syntagm . iuris lib. . c. . de actionibus & dilationibus . e. . c. . thess. . . digest . lib. . tit . . de pactis . p. . instir. p. . c. . magna charta . rot. par. . h. . memb. . num . . instit. p. . * lib. . de legibus . certe non longe à tuis adibus inambulans post excessum suum romulus , julio proculo dixit se deum esse . legitime summonitus f● non venerit ad diem litis , secundum quod fuerit summonitu● , puniendus erit , nisi excusationes habeat legitimas per quas sua absentia merito debeat excusari . fleta lib. . c. . h. . cap. . et hae extraordinaria actione imploratar officium judicis nobile , quia in ejus arbitrio situm est ad agendum admittere vel non , cum magistratus sit custos bons & aqui . tholoss . syntag. iuris lib. . c. ss . . vsque eo difficiles ac morosi sumus ut nobis non satisfaciat ipse demosthenes . cic. in in oratore . note this well . cook on littleton . p. . b. contemptor propriae vitae , magister tuae . . instit. p. . c. . of conspiracy . &c. . of perjury . p c. . p. . c. . & . p. . cum parisiam venisset ludovicus conventu generali habito , rempubl . reformavit , statutis optimis legibus de jure à judicibus dicendo , & de officiis non emendis . gaguini hist. in ludovico divo . lib. . bissaeus in notis ad spelmanni aspilog . p. . instit. p. . c. . lib. . geograph . vnius vestis munus tam opulento vegno compensans . valer. max. lib. de mirabilibus . mult●s fortuna liberat paena , metu neminem , quia infixe nobis est ejus rei aversati● quā natura damnavit ; ideo nunquam latendi fides fit etiā latentibus , quia coarguit illos conscienti● . sen. epist. . erasm. adag . p. . magnanimi motum tardum docet philosophus , vocē gravem , locutienem tardam stabilemve . lorinus in eccles. . . eccles. . . c. . v. . prov. . . festinare praecipitanter & cam subit● quodam pav●●e & solicitudine . lorinus in eccles . . . dan. . . vid●tur his verbis daniel oblique perstringere regis iracundiam & simul ingratitudi nem , quod non sa tis diligenter ingussi●rit , antequam prosiliret ad crude l● illud supplicium , calvin , in lecum . instit. c. . instit. on c. . westm. p. . instit. c. . p. . few but effectual words saith sir edward cook instit. p. instit. c. . p. . luke . . seneca lib. . de ira. c. . securitatis magna porti● est nibil inique facere , confusam vitam & perturbatam impotentes agunt , tantum metnunt quantum nocent , nocens habuit aliquando latendi fortunam , nunquam fiduciam . ep. . hic consentiamus mala facinora conscientia flagellari & plurimum illì tormentum esse cò quod porpetuo illam solicitudo urget atque verberat . senec. ep. . * holingshed . p. . genes . . . sueton , in octavio . epistle to the report . nulli liceat hospitari extr●neum aliquem ultra unam noctem in domo sua nisi hospitatus ille essonium rationabile habuerit . hoveden in annal. p. . in h. . hengham parva c. . p. . edition . seldeni . fleta lib. . c. . . , &c. glanvil . lib. . c. . . spelman . gloss. p. . probabit quodlibet essonium jure jurando propria & unica manu , &c. glanvil . lib. . c. . * cook instit. on c. . stat. marlbridg . p. . fines dilationum sine dubio multi sune & aperts , ut deliberatio , probatto , exhibitio , instructio , auditio , productio , conclusio & similia , tholoss . syntag. juris lib. . c. . ss . . de dilattonibus . (a) lib. . c. . . . (b) cap . sect. . cook on littleton . c. . sect . . p. . lib. . instit. c. . p. . fleta lib. . c. . vt ille qui cum . dierum essen● cum hoste pacta induci● noctu populabatur agros quod dierum essens pactae non noctium induciae . liv. . ab urbe . in amore hac omnia insunt vitiae , injuriae , suspiciones , inimicitiae , inducia . terenco in eunuch . . tuscul. . * de finib . . philipp . . quasi clasidus sutor domi sedet totos dies . plautus aul. . . lib. . de oratore . de claris orator . . see the prayer for the high-court of parliament . regum proprium est facere judicium & justisiam , & liberare de monu calumniatorum vi oppressos , & peregrino , pupilloque & vidua qui facilius opprimuntur à potentioribus prabere auxilium . sanctus hieronymus in c. . jeremiae . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . aristot. politic. lib. . c. . via inepta , incommoda , dissicilis . cit. ad attic . lib. . . (a) terent. and. . . (b) epist. . (c) plin. ep. . (d) ovid. . tristib . . lib. . belli macedon . (e) epithal. . bonum integritas corporis , misera debilitas . cic. . de finibus . * eicon basil. p. . lib. . de regimine principum : cap. . p. . prov. . . hoc igitur officium rex se suscepisse cognoscat . ut sit in regno sicut in corpore anima , & sicut deus in mundo ; qua si diligenter recogtet , ex altero justitia in eo zelus accenditur , dum considerat ad hoc se positum ut loco dei judicium regno exerceat , ex altero vero mansuetudenis & clementiae lenitatem acquirit , dum reputat singulos qui suo subsunt regimini sicut propria membra . sanctus thomas lib. de regiminè princip . c. . learned princes in matters of reformed religion . ci● . ad attic. lib. . . offic. . panul . . theologia ut nomen pra se fert est scientia de deo , hujus autem scientia perfecta traditio & earum rerum qua deo per se competunt , & illarum quae eidem ex eo quod mundi opifex & finis est , conveniunt , exacta notitia continetur . arragonius in prafatione ad . secundae sanct. thomae despe , fide & charitate . (a) lib. . c. . . (b) tacitus lib. . (c) cic. pro cluentio . . * de morali institutione principum . lib. . observe this . cap. . to the prince of wales . cujus exempluns imitati omnes sere qui secuti sunt francorum reges , magnis atque excellentissimis factis cum religione & fidei christiana dignitatem conservarent atque ampliarent . lege gaguini hist. in carolo magno . grimston . hist. france . p. . pag. . p. . p. . imitator erat in hac caroli magni imperatoris & filii ejus ludovici imperatoris qui per semetipsos lectionibus pasiebantur . in fragmento historia aquitanicae , p. . p. . * grimston . p. . ob morum mansuetudinem pii nomen est consequutus . gaguini hist. in vica ejus . history of france . p. . bonis moribus spectatissimus rex nec minus optimis disciplinis eruditus . gaguinus lib. . fol. . b. erat in eo jugis & frequens ad deum oratio , genuam flexio innumerabilis ad humana conversationis exemplum , per laboris genera universa , vir provectus ad summa , sist●nt in consistorio clientem se esse libentissime fatebatur , nunquam injuria accepta ad ulciscandum ductus , &c. helgaldus in epitem . vita ejus inter historias francorum ab anno christi . ad annum . p. . grimston hist. france . p. . isagoge moral , philosophia . quem ego credo manibus pedibusque obnixe omnia facturum . teteut . and. . . . caesar comment . lib. . belli gallici . . cic. . philipp . . vt illa flamma divinitus extitisse videatur , non quae deleret jovis optimi maximi templum , sed quae praeolarius magnificientius que deposceret . cic. . verr. . * chil. . cent. . p. , . de privilegiis luciferi . lege ro●sellium in piman . mercurii . tom. . lib. . com. . c. . commandinus in epistola dedicatoria cardinal . farnesio ante opera aliqua archimedis . impres . venetiis anno . * by reason of a great sickness . vbi dum operi suo invigilat operi suo intermoritur . ribadeneira catal. societatis iesu. p. . continuis tandem la●oribus fractus & magni operis mole veluti oppressus , pestilenti morbo romae succumbit . idem p. ● . quem tametsi scio imperfectum esse , semper en●m accessio fleri poterit , utilem tamen sore existimo magnoque aliis incitamento , ut dugeant inchoata , liment rudia , impolita perpoliant , & novis accessionibus suppleant quae à me praetermissa , vel ninots comparta sunt . ribad . idem loco praecit . p. . jacob. ad calcem iustitutionem in littletonum . justice justified; or the judges commission opened: in two assize sermons, preached before the judges of assize. the first at chard, on prov. . . march . the other at tauton, on rom. . . aug. . . by james strong, master of arts, and minister of the gospel at illmister in sommerset. strong, james, or - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason e _ ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing s thomason e _ estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; :e [ ]) justice justified; or the judges commission opened: in two assize sermons, preached before the judges of assize. the first at chard, on prov. . . march . the other at tauton, on rom. . . aug. . . by james strong, master of arts, and minister of the gospel at illmister in sommerset. strong, james, or - . [ ], , [ ] p. printed for john stafford, and are to be sold at his house, neer the george, at fleet-bridge, london : . annotation on thomason copy: "aprill d", "april. ". reproduction of the original in the british library. eng sermons, english -- th century. law (theology) -- early works to . judges -- great britain -- history -- early works to . a r (thomason e _ ). civilwar no justice justified; or the judges commission opened:: in two assize sermons, preached before the judges of assize. the first at chard, on pr strong, james d the rate of defects per , words puts this text in the d category of texts with between and defects per , words. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - jonathan blaney sampled and proofread - jonathan blaney text and markup reviewed and edited - pfs batch review (qc) and xml conversion justice justified ; or the judges commission opened : in two assize sermons , preached before the judges of assize . the first at chard , on prov. . . march . the other at taunton , on rom. . . aug. . . by james strong , master of arts , and minister of the gospel at illmister in sommerset . justitia immota res publica floret , illa sublata , flaccesset ac deficit . casper sibelius . tom. . page . and i will restore thy judges as at first ; and thy councellors as at the beginning ; afterward shalt thou be called a city of righteousnesse , and a faithful city , isa. . . london , printed for john stafford , and are to be sold at his house , neer the george , at fleet-bridge , . to the right honourable robert nicholas , one of the barons of the exchequer , and richard newdigate , one of the justices of the vpper bench , judges of the western circuit : as also to the right worshipful william hillyard , esq high-sheriff of the county of somerset ; together with the gentlemen of the grand inquest , and others , at whose request these sermons were made publike . my lords and gentlemen ; t was a sad presage of israels ruine , when the lord in anger threatened to break these two staves of his beauty and bonds : if religion be the one of these two staves , the law shall be the other ; these are semper gemella nunquam singula in foetu , two twins , mercies that live and die together , israel at once lost them both , hos. . . the children of israel shall be many dayes without a king , & without a prince , & without an offering , and without an ephod , &c. corruption is the mother of confusion , dan and bethel , the place of judgement , and the house of god , had been corrupted together , and therefore 't was just they should be destroyed together : wickednesse had usurped the seat of justice at dan , and bethel , the house of god , was become a bethanes , the house of lies . what violent adventures have been made by many of this nations own degenerate sons to break the staffe of beauty , i need not tell you ; i fear the next generation will scarce live to see religion healed of some of these scars and wounds she hath received in our late unhappy wars , of which , oh may she not complain in the prophets words , that she hath been wounded in the house of her friends : the quarrel begun with religion , but ended against policy : those that are burthened by the gospel , can live without the law ; sine fide , sine rege , sine lege . the staff of bonds hath of late had its turn , and had not both been held in the hand of a strong god , sure the issue ere this had been confusion . my lords , that both justice and religion finds yet the countenance of so egregious patrons as your selves , is a valley of achor , a door of hope to our israel , that we shall once more see jerusalem in jerusalem , when truth buds out of the earth , and righteousnesse looks down from heaven , then have we ground to hope that our land also shall give her encrease . what evidence have you given the world , not only of your integrity in doing justice , but also of your zeal to religion ? this makes your name which you have left behind you , like a sweet perfume . not to flatter you ( 't was but your duty ) how often to provoke others of quality to imitate your religious practise , have i mentioned , that joy that possest me to see a judge so constant and serious in writing sermon notes ; like those noble berians , acts . the two short sermons following , however esteemed by your honors , and others , had never seen more light then came into my study window , had i known how else to have satisfied the earnest importunities of many gentlemen , and others , that were my auditors ; but beyond all , the joynt desire of your lordships , was of sufficient authority to make me consent ; this liberty only i must crave , when there was one only desired , to present you with two : they are both of the same mould , and like ruth and naomi , they are resolved to go together . what may be the censure of others ( though i am sure to have my back-burden ) doth very little trouble me : the smith's dog ( they say ) doth not fear the fire ; it hath been my lot for some years , beyond many of my place , to be exercised by a generation , whose inward parts is very wickednesse , and their throat an open sepulchre ; so that experience hath sufficiently steel'd me against reproaches . what ever be the welcome that this weak essay finds among others , yet i am sure wisdome is still justified by all her children . to your honors then , and the rest of the gentlemen , whose desire i have gratified by this impression , i humbly inscribe these weak conceptions of mine . and oh that god would once more make another impression of them upon their hearts ; and as he hath honoured you among his people , and advanced you above others in place , so may he make you all more eminent in piety ; that having served your generation in the several trusts committed to you awhile , you may cheerfully resign your offices , together with your souls , and give up your accounts to him who shall come to judge quick and dead , at that last and great day . so doth he promise to pray , that is your most zealous and affectionate servant in the gospel , ja. strong . a sermon preached at the assizes held for the county of somerset , at chard , march . . mr. william hillyard of sea , sheriffe . pro . . ver. . righteousnesse exalteth a nation , but sin is a shame to a people . to begin with god ( especially when the work hath been weighty ) hath been the practice of antiquity among all . scipio went first to the capitol , and then to the senate ; and thither , as the historian tells us , the consuls alwayes went to sacrifice the day they received their authority , a lesson that nature hath taught even heathens , and grace hath much more charged as a duty on christians . of the patriarchs it 's observed , that where-ever they pitch'd their tent , there also they built an altar . thus did abraham , gen. . and isaack , gen. . and jacob , gen. . and good reason . 't is that which was their duty . glory . security . their duty : especially where ever they came to set up god by a publike profession , who had set up them in publike places . . their glory : hereby they read ( as it were ) their commission from that great god , who was pleased to own them in a special relation , and gloried to be called the god of abraham , the god of isaac , and the god of jacob . moses face was never seen shining , until he convers'd with god on the mount , then god darted a beam of his own glory on the face of his magistrate , so that israel trembled at moses majesty . . their security : abraham called his altar jehovah nissi : lord is my banner , under which a christian marches with courage and confidence . the ark paid obid-edom well for its entertainment , and no man sure can be a loser by religion . the service that those three martyrs did to god , made them boldly claim protection from him : thus they argue , dan. . . our god whom we serve will deliver us out of thy hand , o king . the temple hath ever been a good guard to the town-hall , and better secures the ministers of justice , than swords and halberds ▪ o 't is sweet and safe too , when our earthly affairs have a relish of religion , when we carry our selves on earth as denisons of heaven , when we can say as paul , {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} even our civil conversation is in heaven ; non cives respicit , sed magistratus ( saith one ) a duty doubtlesse that beseems none better than those that are in authority ; a mercy yet granted us amidst all those concussions and confusions , both in church and state , when religion is become a by-word , and the ordinances of god accounted but so many need-nots , sith yet those that sit at stern keep the helm in their hand , while our princes and rulers are as ready to hear what god hath to charge them in his courts , as to see and charge their own : what cause have we to hope , that though sinners be the shame of a nation , yet such rulers will exalt it by righteousnesse . the words are one of solomons axioms , and have him for their author , who was both judge and king in israel ; one that better deserved to be stiled master of the sentences for those his proverbs , than ever lumbard , say our late translators . the verse divides it self a thesis . and an antithesis . a thesis ; in those words , righteousnesse exalteth a nation . an antithesis ; in those words , but sin is a reproach to a people . dedecus populis . so drusius . miserum facit populum . so hierom. in both , we have sin and justice described by their contrary effects , altero corripimur , altero corrumpimur ; the one cures us , the other corrupts us : justice exalts us , but sin brings us to shame . the thesis needs no new mould , 't is a doctrine of it self ; i shall briefly explain . prove . apply it . by righteousnesse or justice ; we are to understand distributive justice , or publike justice especially , which consists in giving every man his right , either in punishing the nocent , or justifying the innocent : so we read the word used psa. . . i have done judgement and justice ; where the latter explains the former : i have done judgement and justice ( that is ) i have done judgement justly , or have been just in doing judgement . well , this justice exalts a nation ; 't is a special piece of solomons politiques ; and he layes down the assertion again , pro. . . the king by judgement establisheth the land ; but how a due administration of justice exalts a nation , let us see in the next place . this it doth these three wayes ; ut fundamentum . munimentum . ornamentum . ut fundamentum . as the foundation bears up the house , so doth justice a nation : {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} is so called from {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} and {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} the foundation of the temple : if the fo●ndations be destroyed , what can the righteous do ? positiones vel statut aeverterunt : so luther renders the orig they have imbroiled and destroyed the law ; and when there 's no law for loose men , what can the righteous do ? what but glorifie god by suffering his will , and relieve themselves in the words that presently follow ; the lord is in his holy temple , the lords throne is in heaven . ut munimentum . as sampsons strength lay in his locks , so doth the strength of a state in government : justice was wont to be portraitured with a balance in one hand , and a sword in the other ; as with that she weighs the case , so with this she defends the guiltlesse , and hate of the impious . for this too ; magistrates are called the shields of the earth , fencing and securing their people , as a shield doth the body . once more , they are called the corner-stone , zac. . . out of juda shall come the corner . corner stones unite the walls , draw out these , and the house will fall without any more trouble ; magistrates are the strength of a state ; as the walls gapes when the corner is out , so a nation without government must needs be devided ; and what follows , a kingdome devided , cannot stand ▪ justice exalts a nation ; ut ornamentum : corner-stones do not only strengthen , but also adorn the building ; they are more costly and curious then those that lie by them ; their daughters shall be as corner-stones polish'd , after the similitude of a temple , psa. . . besides , they are called a nail in zac. . . nailes do not only fasten and strengthen , but they serve to hang things on . do not think it strange , that the glory of a nation should hang upon the nail of authority : when god promised to fasten eliakim as a nail in a sure place , ( that is , to establish his government ) 't is added , and they shall hang upon him all the glory of his fathers house , isa. . . 't is worth notice , that when the psalmist was in a vein of extolling the glory of jerusalem , he commends her , among other things , as glorious for this , because there were the thrones of judgement . thus good laws well executed , are the bottom , beauty , and bullwork of a state , and it briefly teaches us ; that anabaptists and libertines , as they are enemies to the church , so they are bad friends to a state ; to ruine lawes , and to destroy a nation , are but the same thing in divers expressions : those satanized monsters that despise government , and speak evil of dignities , are such as follow the flesh in the lusts of uncleannesse , . pet. . . law is one of the greatest enemies to lust , two masters they are , that cannot be served both , but he that will leane to the one , must despise the other . a lap. proposes the query , why epicurus had more disciples than the rest of the phylosophers ; and he gives this answer ; non quod disciplina verum afferat , sed quod voluptate invitet ; liberty is a bait that lust loves to bite at , and he that would catch the one , must angle with the other . corruption could never endure to be bridled by authority , but loves to run in a loose rein : elies sons were first lustful , and then disobedient ; and still do their impure off-spring decry authority to foster their impurity , every where voting down lawes and justice ; as they in the psalm , who is lord over us . we may learn nezt the necessity , both of law and justice , and the misery of a nation that is without them . the persians had a custome when their chief ruler died , there was among them , {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} a lawlesse liberty for five daies after , so that every one might do for that five daies what he pleased . now in this short interval of government , there were such murders ; rapes , and robberies of all kinds committed , by the headlesse multitude , that before the five daies were expired , they were exceeding glad to accept of a new governour . justice is the very pulse of a state ; and as we know the man's dead when his pulse doth not beat ; so in a commonwealth , when justice ceaseth : the prophet saw nothing but spoiling and violence , and the wicked compassing about the righteous ; and why ? defluit lex , the law was dissolved ; no life any longer in the state , its pulse had done beating , heb. . . 't is an observation of learned weems , that so necessary is justice to the very being of a commonwealth , that no society can subsist without it , even thieves and robbers could not long subsist , if every one had not his share , the whole society must needs be dissolved . miserable is that nation where justice is corrupted , that looks for judgement , and meet with oppression , and for righteousnesse , but behold a cry ; wrong judgement is worse then no judgement : 't is sad when judgement is turned into gall , and the fruit of righteousnesse into hemlock , where should a man look for justice , but where men professe holinesse : yet this was the grievance of which the preacher complains , eccles. . . i saw under the sun the place of judgement , and behold , wickednesse was there ; and the place of righteousnesse , and iniquity was there . such corruptions gave cato cause to complain of the roman state , that private robbers lay in chains of iron , but publike thieves went in chains of gold . in short , a people is then at their last cast , when god finds not a man to do justice among them , jer. . . run too and fro thorow the streets of jerusalem , and see , and know , and seek in the broad place thereof , if there be any that executeth judgement , and seeketh truth , and i will spare it . the want of justice upon earth , provokes god himself to do justice from heaven . learn we next to prize this grand blessing ; justice executed by men is a mercy from god ; since sin entered into the world , justice is the remedy that god hath provided to purge corruption . nebuchadnezzar was none of the best governours , yet a cedar , under which the beasts of the field found shadow , and the fowls of heaven dwelt under the boughs thereof ; if a bad magistrate be so useful ; what 's the worth of a better ? when the queen of sheba came to hear solomon , she made it matter of her joy , and blessed god that he had set solomon on the throne of israel ; because the lord loved israel for ever , therefore he made the king to do judgement and justice , kings . . sure 't is our happinesse , had we hearts to acknowledge it , that we have justice weighed to us by the balance , when for sin we might justly have expected to have seen it carved out to us by the sword . addresses it self to you ( right honourable ) with the rest that are in authority , you see what 's your duty , and the countryes expectation , would you raise a poor nation that 's almost in the dust ; you see the way , and your duty lies somewhat more exactly described in deut. . . i charged your judges at that time , saying ; hear the causes between your brethren , and judge righteously between every man and his brother . five things especially are requisite to make a compleat magistrate , and they are briefly these . wisdome and judgement to find out the truth ; magistrates are the eyes of a state , and if this light be darknesse , how great would the darknesse be ; let us ever deprecate that curse that god justly once threatened israel with ; shepherds they should have , and the sword upon their right eye . job here deserved to be a pattern to posterity , seldome at a losse in judgement , but the cause , that i knew not : i searched out , saith he , job . guilt usually stands at the bar under a disguize , and hath a design to carry away the blessing , as jacob from esau , under the pretence of innocency . of alexander 't is reported , that he was wont to sit in judgement with one ear stopt , and never heard with that , till the party accused came to speak . 't is gods own law , exod. . . when there is a difference about an oxe or an asse , sheep or rayment , or any lost thing , both the parties must come before the judges ( that is ) must be heard by them . the other four vertues to compleat a magistrate , are in one scripture injoyned , exod. . . provide you among all the people men of courage , fearing god , dealing truly ; and hating covetousnesse , &c. and let them judge the people . i shall crave leave briefly to run them over . and . they must be men of courage , such as cato , of whom 't is said , that no man ever durst petition him for a favour that was contrary to equity . solomon symbolized this courage by the steps of his throne , which were adorned with lions , to mind him alway of that courage that beseemeth him that sate thereon : for this reason constantine in sc. is called the man-child , rev. , . to to imitate his valour in venturing for the churches weal ; this valour was eminent in job , who brake the jawes of the unrighteous , and pluck'd the prey out of his teeth , job . . this holy boldnesse would be as a shield to fence us either against the frowns of superiours , or the murmurings of inferiours ; who so well fences against the reproach of others , as he whose heart doth not reproach him : bene agere , & male audire regium est , saith seneca . they must be men fearing god , and that as they are considered in a double capacity . as christians in common with others ; this ( saith solomon is both the beginning and the end of christianity , 't is the beginning of wisdome , prov. . . and 't is the end of all things , eccles. . . yea , 't is the all of christian , that one thing that is necessary ; and oh that we could chuse this better part . ▪ as magistrates in place above others ; as unjust judges ( one sayes ) is a solecisme : a magistrate , saith luther , should be vivalex , such whose life should be but a comment on the law of god and man ▪ the way to do righteousnesse is to be righteous : how ill doth it become him to punish a drunkard , swearer , or sabbath-breaker , that is such himself . religion and justice uphold a nation , as those two pillars jachin and boaz did solomons ▪ temple . now religion must stand as jachin , on the right hand . luther long since told the reformers of germany , it would never be well with the state , till they first secured the peace of the church ; yet alas , how apt are we to begin at the wrong end ; do our own work first , and then gods . good constantine kept gods method , first sought gods kingdome , and then ( sayes one ) other things sought him ; adeo ut tanta terrena nullus auderet petere &c. so that none durst to desire so much of worldly happinesse , as god freely gave him ; and this was the isalmists order too , who first tenders a petition for zion , and after that for jerusalem ; do good in thy good pleasure unto zion , and then build the walls of jerusalem . o then let me beg this one thing , as upon my knees , be as zealous that god hath his due , as caesar or his subjects theirs ; shall blasphemy scape better than felony ? shall a cut-purse die , and a blasphemer , a god-robber , a kill-christ live ? is sacriledge become a lesse sin than theft ? if ever rage beseems a magistrate , 't is when he comes to rescue the honour , or revenge the dishonour of his god ; then if ever moses might ▪ be excused for tearing the tables , when israel had turned the glory of god into the similitude of a calf that eateth hay . servetus the heretique , charging melancton of harshnesse in a dispute , made this answer , in aliis mitis sim , cum blasphematur nomen christi non ita . religion ( my lord ) hath the greatest interest in us all : all the tents were pitch'd about the tabernacle , to teach us , that the whole world is but a great inn for the church to lodge in ; the vine is a noble plant , and the wine that 's prest from it hath noble qualitie , yet they say , if a mandrake be set neere the vine the grape is farre the more generous ; justice is a rare vertue in it self , but if religion be planted neere it , it s farre the more admirable . the centurions servant commended his master to the utmost when he told christ jesus that he loved the nation , and confirmed it by this , that he had built them a synagogue . o bring back the captive ark , build gods house , repaire the ruines of the tabernacle of david . this wil honour you indeed , and prove you lovers of your nation . . they must be men of truth ( that is ) of justice , saith a lap. for in all wrong wrong judgement there is a lie . delrio tells us , that justice was wont to be described by a virgin and the magistrate , by an eunuch armed , to shew , first , that magistrates must not violate the chastity of justice themselves ; and secondly , they must preserve her from others . two enemies especially justice is in danger of , . the lawyer , who makes it a great part of his art to raise a mist before the judges eyes ( 't is a rule , that where the discourse is general , there 's no personal wrong to any ) 't is sad to see a cause prove good or bad according as 't is pleaded . methinks i cannot mention the employment , but mind too that of poor spira , whoat once breathed out his soul , his hopes , and this sad lamentation together ; good causes i pleaded coldly , or else sold perfidiously ; bad causes i followed zealously , and pleaded with all my might , o legitur historiam ne sitit historia . be not too wise or too learned to be saved by the foolishnesse of preaching . . the second enemy is the false witnesse , if truth and innocency escape the one , how usually do they suffer by the other . though a faithful witnesse , i must confesse , as great a friend to truth , as jonathan to david , yet that thorowly sifted , i doubt not but too often they would deserve to be handled as paul , when he was examined with stripes . alas , who knows not ( saith luther ) that steven died by witnesse , and christ himself died by witnesses , though sometimes suborned . between these two enemies , when truth is like to be torne in pieces , as paul by those contrary factions , the pharisees and the sadduces , acts . what need of a compleat magistrate , like the centuriont , here to come and make a rescue . . hating covetousnesse . when the prophet complaines of jerusalems officers . thy princes are rebellious , and companions of thieves , he addes the cause , they love gifts . as paul shook off the viper from his hand , so should a magistrate a bribe , and say as he at another time , ( if he meet with a temptation ) when he dealt with simon magus , thy money perish with thee . o honourable comfortable testimony , when our hearts can witnesse . as samuels . here i am , &c. whose oxe have i taken , or whose asse have i taken , or of whom have i received a bribe , and i will restore it . and now to move you a little , let me quicken this grand duty with these few argumens . . consider those many honourable titles wherewith god hath dignified you , wherefore are you called princes , nobles , nursing-fathers , shepherds , mountaines , sons of the almighty , but that you should honour those titles by acting for his honor that hath conferr'd them on you , 't is a saying of salvians , reatus impii est pium nomen . titles of honour do but greaten wicked mens guilt that do abuse them . . consider the influence that men of place have upon their inferiours . magnates magnetes , great mens lives are small mens laws , magistrates are the countreys looking glasses in which other men look and dress themselves by them . if a magistrate will drink , or sweare , or slight the sabbath , who will not bear him company . as an eclipse in the sunne alwayes produceth some destructive effects upon inferiour bodies , so 't is here , let a man of place be either good or bad , he is sure to be exemplary : we read when crispus the chief ruler of the synagogue beleeved , many of the corinthians beside beleeved and were baptized with him , acts . . on the other side the psalmist could imagine no heavier curse for his enemy then this , set you an ungodly man to be ruler over him . . meditate seriously whose work you are in . solomon tells you , the weights of the bag are his work , prov. . . et quae dei sunt trimide tractanda . judges are gods lieutenants , and you judge for him , saith jehoshaphat to his judges . take heed what you do , for you judge not for man , but for the lord , who is with you in the judgement , and that 's the third . . consider that god himself is present with you , and president over you , psal. . . god standeth in the congregation of the princes . loring on that scripture tells us , the ethiopians were wont to set an empty chaire in the middest of their judicatories to minde them that god was there , o think that god attends to heare what charges , evidences , pleas , and sentences are there past , cave cato videt , was wont to be a watchword in rome , and this awed them from evil , let our watchword be , the lord seeth . . lastly , he is judge of judges , all causes must once more be heard over , and called again , he judgeth among the gods , when the preacher complains of wrong judgment upon earth , he looks upward , and relieves himself from heaven , but god ( saith he ) shall judge the righteous and the wicked , eccl. . . ciprian in his prayer before his martyrdome among many heart-wounding passages from the consideration of the last judgement , this especially is one , ve peccatis nihil cum elevaneris confringere terram sub qua fissura petrarum me absconsurus sum cui monti dicam cade super me , cui colli tege me , &c. woe to me when thou o lord shalt arise to shake terribly the earth . in what rock shall i finde a clift to hide me ? to what mountain shall i say , fall on me ? to what hill cover me , & c ? o if martyrs tremble , how will sinners stand . if such as lose their lives for christs dread that day , what will become of such as venture their lives against him . if this be done to the green tree , what will be done to the dry ? oh that we were wise to consider our latter end , that we could provide by holinesse , and prevent by repentance the sad issues that sin will in that day bring upon us : god in scripture is said to have a bag and a bottle , a bag for our sinnes , a bottle for our tears , oh as we have fill'd the one with sin , so le ts fill the other by repentence . and oh blessed be that god that after we have made shipwrack by sin , hath provided us such a plank as repentance upon which we may swim safe to heaven . let us then all take the shame of sin to our selves by repentance here in the day of grace , that sin may never bring us to shame in the day of judgement . a sermon preached at the assizes at taunton in the county of sommerset . august . . rom. . ver. . for he is the minister of god to thee for good , but if you do that which is evil be afraid , for he beareth not the sword in vain . great places and employments god never intended as priviledges to secure any from his service , the king himselfe , how great soever be his busines was ( with his own hand , saith philo ) to write two copies of the bible out of the original , the one he was to use at home , and if he went abroad the other he must use as a running library or hic vade mecum , deut. . . and the reason is added , v. . that his heart be not lifted up . o 't is a hard matter to keep our hearts down when our honours rise . vespasian is said to be the onely man that was ever the better by being emperour , self-love like a false glasse makes us see our selves bigger , and others lesse then they are ; to prevent which , we are never to be without that true glasse of gods law , that will tell us that even gods among men are but men with god , and that the greatest magistrate is but gods minister , and that 's honour enough , for he is the minister of god to thee , &c. to be large in prefacing were but to wrong my text . as though like the prophets strait bed and his narrow covering it could not hold me an houre , when rather indeed it 's like the great and the wide sea , where there 's roome enough for the tallest ship to float , and the great leviathan may take his pastime therein . to the words then briefly . and here , as by the portal we go into the inner roomes , so let me give you by the coherence , occasion , and other circumstances to the text . 't is aretius observation of the jewes , that they ever scorn'd subjection to any , especially to the romans , and alsted of the vain glory of their successours to this day , sayes thus , antiquum obtinent ; they are no changelings , still fill up their fathers sinne by their present pride , you may read their temper in that bragge of theirs , john . . we were never in bondage to any man , when yet they were scarce ever out of bondage to some or other , and at that very time in bondage to the romans . well , bondage being so burdensome to this people , there was liberty by the gospel preacht by christ and his apostles , which doctrine of liberty was so misapplied , and abused by divers , that they thought themselves by their christian liberty discharged from being any longer subject to secular authority ; whence julian , porphirius , proclus and other heathens traduced the doctrine of christ and his apostles , as that that was seditious , and father'd the rebellious practises of the people upon the doctrine of their teachers . on this occasion ( saith clemens alexandrius ) did christ and his apostles studiously endeavour to vindicate the doctrine of the gospel from this aspersion , and did enough to convince the world that gospel liberty was farre from countenancing rebellion against civil authority . this christ did when he paid tribute money himself , and gave it in charge to others to give caesar the things that were caesars . and paul among the rest makes it his profest businesse in this chapter , in which both his matter and method are exceeding plaine . . he enjoynes subjection on all as a generall duty , verse . let every soule be subject to the higher powers . . draws up his arguments in order to prove his doctrine , and the first is this . . the authour of government , that 's god , for there is no power , but of god : true , the constitution is from man , the manner or mould of government , as solon said of the athenian laws , they were so good as the people could beare , fitted ( he meant ) and accomodated to the state of the people , but still the institution or ordination is from god , {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , they are ordained of god , from which conclusion follows this fearful consequence , he then that resisteth the power resisteth the ordinance of god , v. . . he proves his position from the end of authority , v. . for rulers are not a terrour to good works , but to the evil . jeroboam then forgot his duty and proved a shame to magistracy , when instead of encouraging his people to serve the lord ; he set a net on mizpeh , and spread a snare on tabor to watch who would go from him to worship god in judah , hosea . . . he argues from magistrates relation to god , whose person they represent , and by whose authority they act , vers. . for he is the minister of god , &c. the words in short are a vindication of magistracy drawn from its authour . its end . . from its authour , that 's god , for he is the minister of god . . from its end , and that 's twofold , . the protection of them that are good : gods minister to thee for good . . the punishing and suppressing of the wicked , to such the magistrate is intended for terrour , and the reason is added , for he beareth not the sword in vaine . doct. observe then , . that a lawful magistrate is gods miinister {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , gods vicar , deputy , or vicegerent . several wayes this may be evidenced . . they are commissioned by him not only kings , but judges also , prov. . , . by me kings reigne , and princes decree justice ; by me princes rule , and nobles , and all judges of the earth . god alone is the absolute monarch , and hath the sole sovereignty of heaven and earth , and this power he delegates to princes and rulers who governe for him . . they act for him , and this will appeare two wayes . . they are gods laws whereby they judge god himself prescribed israel her judicials , deut. . and he is supreme logislator still . hence that prayer of the psalmist , give the king thy judgement , o lord , and thy righteousnesse to the kings son , and then he doubts not when god has given him righteous laws , and a righteous heart to execute them , but that he will prove a blessed governour , then shall he judge thy people in righteousnesse , and thy poore with equitie . . it 's gods sentence ( or ought to be ) which they past ; though the king be but a man , yet 't is a divine sentence that is in his lips , and his mouth transgresseth not in judgement , prov. . . our old word conning , and by contraction , king becanus sayes , comes from con , which signifies three things , p●ssum scio audeo , i can do justice , i know how to do it , and i dare to do it , if either a magistrate want power , or skill , or courage to do justice , 't is but vaine to expect this divine sentence ; and oh 't is sad if the judgement be mans only , and not gods . a few things briefly i shall inferre from the point . and first , what meanes that bedlam spirit , whereby anabaptists , quakers , and the rest of that same batch are acted , that have learnt a religion to justifie their rebellion , pretending as the jewes of caesar that they know no king but christ , as if he were a loyal subject to his prince that contemn'd his deputy ; facile imperium in benos , pessimus quisque asperime rectorem patitur , &c. the corruptest tempers have ever been most apt to scorne authority , i wish such masterlesse monsters would consider how well that querie might might be proposed to them wherewith the lord confounds sennecharib ; whom wast thou railed on and whom hast thou blasphemed , and against whom hast thou exalted thy voice , and lifted up thine eyes on high ? ( not against hezekiah ) but against the holy one of israel . israel was weary of samuel , and god tells them plainly they had cast off him . secondly , it shews us that magistrates power is not arbitrary , they are some of heavens commissioned officers , and may say as the centurion , though they have others under them , yet that they themselves are men under authority ; and oh how careful ought such to be of breaking their commission . thirdly . it serves exceedingly to encourage magistrates : can they think that god will employ them in his work , and not bear them out in their employment ? sure you serve no such hard master . 't is a note of paraeus , did not god ( sayes he ) countenance and assist them that are ministers of justice , did not he stand in the assembly of princes , it could never be that the face of authority should be so formidable : that god that promised israel , that one should chase a thousand , is he that makes the face of a single magistrate to awe the hearts of a thousand malefactors . take heed next of undertaking gods work , and doing their own . yea , judge for god said , good jehoshaphat , to his judges , therefore take heed . oh how should it be the study of a christian magistrate to passe such a sentence as god himselfe would passe did he take the matter into his owne hand . it acquaints us with that harmony that there is between magistracy and ministry . the same word serves for both : minister in a general name that will agree to either . they drive but one designe , and serve but one master , though in different places , moses and aaron , the king and the priest lie usually together , like sweet twinnes in the armes of scripture . o let them not prove , like the twins of rebecca , one strugling against the other ; but , like the twins of heraclitus , alwayes weeping and laughing together . magistracy christ likens to a neck of ivory pure and potent , ministry to the eye , of the body cleare and transparent , like the fish-pooles of heshbon , and these he joynes together , cant. . . oh those which christ hath joyned together , let not man put asunder . never magistrates fared worse than such as were enemies to the prophet , as paul and ahab , and none ever prosper'd better then such as were nursing to them , as david and hezekiah , and that general rule is still true , beleeve the lords prophets , so shall ye prosper . so much briefly for the first note , let the next be this , doct. . that the peoples good is the end of government . he is the minister of god to thee for good . hence as gualter notes , the ancient title that was given magistrates , was benefactor , luke . . the kings of the gentiles rule over them , and they that bear rule over them are called bountiful {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} called benefactours , the magistrate comes ahimaaz with good tydings ; and wherein this good lies , i shall briefly shew you . a fourfold good comes by government . , natural good . it preserves our lives , as moses slew the egyptian , but saved the israelite , so doth the magistrate , cuts off the nocent preserves the innocent . . civil good , how quickly would the hills become mountains of robbers , and the high-wayes be once more unoccupied as in the dayes of jael , judg. . no safety would there be to him that went out , nor to him that came in , did not the sword of justice guard the innocent , as that flaming sword did the tree of life . . moral good , by restraining men from vice ; and encouraging them to vertue ; were there none to reprove in the gate , sin would quickly grow impudent and audacious , what could we expect but that all prodigious impieties , like another deluge , would drown the world , were the gates of authority thrown off their hinges . therefore the apostle bids us pray for kings , and all that be in authority , that under them we may live peaceable lives , in all godlinesse and honesty , tim. , . spiritual good magistracy was ever intended to be a guard to the gospel ; defenders of the faith they are all in their places : of charles the great 't is recorded , that he had his office written on his sword , which he wore as his great glory , decem praeceptorum custos carolus , charles , lord keeper of the ten commandments ; how careful good governours have ever been to secure religion . i might instance in david , ●oas , jehoshaphat , hezekiah , solomon , and others . take two for all , of good josiah 't is said , that he was so farre from leaving his subjects to an intollerable tolleration that he commanded judah to serve the god of israel , chron. . . and so did asa , chron. . . i am forc't to leave the application to your selves , and must hasten to the next thing . and that 's from the other end of government ( viz. ) the punishment of evil-doers , but if thou doest evil , feare . doct. . whence we note next , that good laws are terrible to none but to evil persons . in this sense the law troubles not a righteous man ; but its threatnings are levelled against the lawlesse , such as tear the bonds of government , as sampson did his withes , and cry out we will not be be bound . to such the law is intended for terrour , excellently solomon to this purpose , prov. . . a wise king scattereth the wicked , and causeth the wheel to turn over them . quest . but what evil is it that falls within the reach of civil justice . answ. any civil or religious : the magistrate is custos utriusque tabulae , all laws propounded without limitation must be understood in their latitude . two things briefly it lessons us . first , to observe a difference between the precious and the vile , and in drawing the sword of justice alwayes to have a blow at wickednesse , the psalmist deserves to be our president here , who having sorted his subjects , bestows his favour on the good , his frownes on the evil , psal. . . mine eyes shall be upon the faithful in the land , that they may dwell with me . these he intended should be to him , as joseph to pharaoh , men of office and honour , but v. . betimes i will destroy all the wicked of the land , that i may cut off the workers of iniquity from the city of the lord : if men in place would study this choice , and make such a difference among their inferiours , i had almost said they might save the labour of forcing men from evil by their power . i am prone to beleeve they would winne so many by their practice . it charges magistrates that they do not do justice by halves , take heed you do not punish one for speaking one word against caesar , and let another scape that speaks too against christ , to all evil-doers a magistrate must be terrible . david threatens impartially to weed out the wicked , to cut off all the workers of iniquity ; this is indeed not to beare the sword in vaine , the last thing that craves your attention and notes to us is this , doct. that the end why god hath armed authority with the sword is to do execution upon the wicked . an allusion , sayes calvin , to the roman consuls , who had axes and swords carried before them as ensignes of their power ; 't is not in vaine this sword is committed to them , no 't is to give notice that they have potestatem vitae & necis , gladium gestant ut impios plectant ( saith one ) 't is to cut off the wicked , which otherwise , like rotten and gangreen'd members , would endanger the body . but here it must be remembred that the sword of justice must be furbisht with the oyle of mercy . the malefactor in the law must lie down and be beaten , and that before the judge but with a certaine number of stripes , and that too according to the nature of the trespasse , deut. . . the same punishment is no more fit for all offences then the same physick is for all diseases ; the romans had as well rods as axes borne before their consuls to intimate that some offences were as sufficiently punisht by the whip as others by the block . and now that i may not lose the advantage of doing god some service in so sacred a solemnity as this , i shall keep me no longer to generals , but parcel out the residue of my discourse , and addresse my self briefly to all sorts in particular , that my doctrine may fall as the dew , and though here a little , and there a little , yet may leave some moisture upon all . and first , ( right honourable ) your dignity bespeaks the upmost roome , 't is for you , there 's none more honourable then your selves that is bidden of it . you here authority is no empty word . magistracy implys somewhat more then a title of honour , take heed of sparing when god bids you slay , let not the sword of justice rust in the scabbard , and prove like the sword of jeth●r which he could not draw nor use ▪ judges had need often to edge the sword of justice with the file of courage , fiat justitiarunt coelum was a good resolution . be champions of justice while you can , and when you can no longer serve her as such , keep your ground , and resolve to die her martyrs . as to the case of religion ( my lords ) though i hope i may say as paul to his thessalonians , of love i need not speak to you , though you know and do this already , yet suffer me a little to put you in remembrance , for sions sake i cannot hold my peace . oh help the teeming woman , the travelling church , the fruit is come to the birth , but there wants strength to bring forth , is 't not pity she should miscarry , with ephraim , and stay in the place of bringing forth children ? sure a hand of authority would do much to further her deliverance , christ by the sword hath been paring and pruning his vine till at last some some young grapes of reformation did appeare , but ah on a sudden the subtle foxes threaten to devoure all ; the petition that at this time i shall tender to their hands shall be the churches prayer , cant. . . take us the foxes , yea , the little foxes which destroy the vines , for the vines have tender grapes ; never pity nor spare them for that they are young . happy shall he be that takes the brats of babel , any of her little ones , and dasheth them against the stones . to commissioners of peace that are assessours with you , i have onely this , do not say , as saul , all is well in the countrey , if so , what means the bleating of sheep , and the lowing of oxen that we heare ? what meanes the roaring in ale-houses , prophanation of sabbaths , with other crying abominations ? what 's the matter that so many with malchus have lost their right eare that they cannot hear a complaint , nay , sometimes the right eye , that they cannot see a disorder ? is it not woful , that many a magistrate , like george on horse-back , sits alway with the sword up , but never strikes . the lord give you moses spirit as well as moses place , and write upon your hearts resolution for the lord . as for you , gentlemen of the gowne , i intend no satyr but a sermon , and therefore 't is but a word of councel that i would venture to give you , looking neither for bribe nor fee , save onely a desire to see the fruit of my lips in the consecrating of yours . o read often the law which is both the law and the prophets . converse much with heavens statutes , all which , like the lawes of draco are written in blood , death being the penalty that 's threatened to all . take the fatherlesse and the widow for your clients , god owns them for his , and alwayes judge your selves most bound to speak when truth wants an advocate . for the gentlemen that are jurors ; so farre have you honoured your employment of late , that without flattery . i question not , but that like a well-drawn picture , you will have your eyes on every corner in the county , you are your countreys representatives , a petty parliament , o make faithfull reports of your countreys case , when god by you makes inquisition , bring forth the accursed thing whatever it be , out with jonah that you may save the ship . for the jurors of inferiour order , and the witnesses , oh that there were none of jezabels knights of the post to be found among you , that should sell an innocent man for eight pence . remember that for oathes the land mourneth , and before you lay your hands on the outside of the bible , fix your thoughts on something of the inside . 't is zech. . . where the curse comes like a flying bood , and enters into the house of the thief , and into the house of him that sweares falsly , and there it must remain til it hath eaten up the stones and timber thereof . for barretters , and litigious brawlers , that like salmanders , live in the fire , and contend for trifles , even the turks send away such with a whip , if any be found in their courts , i wish heartily ours might speed no better , doubtlesse authority would be far lesse troubled then now , if mens hearts were not bigger then their suits . i shall make but one turne more to them that are in authority , take leave , and i have done . o minde your duty , and do it , and to make it sure , i would take but two or three temple-nailes , and fasten all . . consider it will make you great blessings to your countrey ; if any thing fetch life in a dying state , 't is justice , 't is worth our observation , that when god promises to give a spirit of judgement to them that sit in judgement , he promises also to be a crown of glory to the residue of his people , is . . , . o that the generations to come might rise up and call you blessed . . 't is the way to live honourably , and to die comfortably . . to live honourably : of cassianus the emperour , 't is storied that he refused to be called pius , but would be called foelix , a wilde designe to reach after felicity by the neglect of piety ; nothing so surely honours us among men , as when we seek the honour of god , 't is a bargaine of gods own making , those that honour me , them will i honour . 't was this that made deborah cry out in her song , my heart is set toward the governours of israel . . t is the way to die comfortably , when the sight of grim death makes others look wan , conscience of their integrity will steel their hearts against the king of terrours ; oh blessed case , when in the closing up of mens lives , they can with that zealous magistrate , nehemiah , say boldly , remember me o lord concerning this , and remember me , o lord , concerning this also . to borrow the elegant words of a reverend authour , what happy items will these be in our last reckoning , such magistrates may sweetly close their lives with those comfortable words wherwith he closes his book : and remember , o my god , in goodnesse . a vast and blessed difference between the righteous and the wicked , when of the one the lord protesteth he will never forget any of their works to let them scape unrevenged , amos . . of the other we have as strong an assurance that he will never forget any of theirs to let them go unrewarded , heb. . . 't is not consistent with the justice of god , the lord is not unrighteous to forget your work and labour of love . o that your works might praise you in the gates of your own courts while you live , so shall they follow you to the gates of heaven when you come to die . finis . courteous reader be pleased to take notice that these books following are worth thy perusal ; printed for john stafford , and are to be sold at the george at fleet-bridge . a divine message to the elect soul , delivered in eight sermons upon seven several texts , by that laborious and faithful messenger of jesus christ , mr. william fenner . b. d. divine meditations upon several subjects , whereunto is annexed gods love , and mans unworthinesse , with several divine ejaculations , written by john quaries . choice and profitable secrets , both physical and chirurgical , formerly concealed by the deceased dutches of lenox , and now published for the use and benefit of such as live farre from physicians and chirurgions : being approved of by eminenent doctors , and published , by their charitable advice , for the publick good ; whereunto is annexed , a discovery of the natures and properties of all such herbs which are most commonly known , and grow in countrey gardens . notes, typically marginal, from the original text notes for div a e- zac. . zac. . . psa . , . anabapt. quakers . sensualists . notes for div a e- rosing de antiquit . rom. lib. . page . ex. . . ex. . . sam. . . phil. . . regnum coelorum est civitas nostra & nos gerimus ut municipes coelorum . cornel. a lap. in loc. assemb . annot. vid. d●usium in loc. explanation . vid. a lap. in loc. psa. . . luther in loc. psa. . . luke . ▪ psa. . . use . sam. . psa. . use . hab . . weems his christian synagogue . use . am. , . use . dan. . . kings . . use . zac. . . boni pastores debent esse cent oculi ut se ipsos introspici , aut & alios curent , cui enim bonus qui sibi nequam ? vid a lap. in loc. ut nemo navem dirigit sine ferro quod attricuit sideri●es : sic nemo rem publ . sine mente quam offlavit prudentia . sibelius . tom. . p. . a quo nemo unquam rem injustam petere audebat . king. . . see brightman on the apoc. ch. . luke . . j●nkin . quid valeant statuta legum que illi maxime spernant qui ministrant . salvian , pa. . chro. . . respublica bene constituta duabus vastis innititur columnis & vera religio ne & justitia . sibelius . tom. . page . psa. . . zion signifies the state of the church , in regard of things spiritual , and ierusalem the evil state . mr. leigh . weems . lev . . virgo haec judicibus commissa est in custodiam ut ipsi nec violent nec violari patiantur . delrio adag. ver. test . pag. . luther mensal . colioq . isa. . sam. , psal . . chron. lorinus in ps. . cyprian . tom. . pag. psalm . job . notes for div a e- psal. , judei semper iniquissime tulerunt alienum imperum , &c. aretius in loc. trap in loc. mark . doct. haec sententia duo significat . hanc potestatem esse a deo. reges vicem gerere dei , &c. a lap. in loc. psal. . , use . king. . sam. . use . use . pareus in loc. use . use . psal. . lam. . . chr. . doct. . gualter in rom . in bonum ci qui bonum agit . estius . exod. . . ad hoc instituta est potestas secularis ut & pacem publ . conservet & vitae communis honestatem . estius p. . doct. . mr. leigh . use . use . doct. calvin in loc. principe non frustra gladium testat sed ut stringat in malafactoris , estius in loc. use . judg. . . thes. . ▪ hosea . ▪ psal. . whatsoever you would that men should do to you , &c. mat. . rom. . ult. psal , . jer. . ad magistratum maxime utiles qui privata comoda publice post habent qui sciunt civium non servitutum sibi traditam sed tutelam nec republ. suam esse sed sc republicae &c. sibelliq . tom. . p. . sam. . judg. . neh. . , dr. 〈◊〉 . the harmony of natural and positive divine laws charleton, walter, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing c estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the harmony of natural and positive divine laws charleton, walter, - . [ ], p. printed for walter kettilby ..., london : . attributed to walter charleton. cf. halkett & laing ( nd ed.). advertisements: p. 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ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- philosophy. natural law. law (theology) -- biblical teaching. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - rina kor sampled and proofread - rina kor text and markup reviewed and edited - pfs batch review (qc) and xml conversion the harmony of natural and positive divine laws . chrysostom . ad demetrium . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; quòd praeceptis non creditur , ex inertia ad implenda quae praecepta sunt , venit . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . deo parere , non libertate tantùm , sed & regno praestantius est . philo lib. de regno . london , printed for walter kettilby , at the bishop's head in st. paul's church-yard . . the publisher to the reader . fortune , though beyond my merit , and beside my expectation so propitious , as to give me , not only the liberty of reading the original manuscript of this compendious treatise , but also a right of adjudging it , either to perpetual darkness in my cabinet , or to publick light , as i should think convenient : hath yet been so reserv'd , or sullen , as to deny me the knowledge of the author's name and quality ; as if it were favour great enough , that she entrusted me to dispose of anothers treasure , without understanding from whom she had receiv'd it ; or as if she design'd to make trial of my faith , whether i would lay claim to what seem'd to want an owner . but this her caprichio , as it hath not deterr'd me from divulging , so ought it not to discourage you , candid reader , from seriously perusing this manual . for 't is an ancient and wise saying of a philosopher , non tam quis dixerit refert , quam quid dictum sit : and if the book be good enough to commend it self , what can it concern you or me to be inquisitive who compos'd it ? if not ; certainly no name , how much soever celebrated , can defend it from neglect and contempt . besides , when we remain ignorant upon whom to fix the blame of our frustrations , commonly that ignorance turns to our advantage , by mitigating our resentments , and keeping our displeasure from transgressing the limits of humanity and moderation . this i speak , neither out of dislike of that natural curiosity by which all men are led to search into things conceal'd , nor from vain hope to restrain you from using the liberty of conjecturing , that is equally common to all : but only from good manners , which forbid us to pry into the secrets of another , chiefly of him who judges the communication of them to be unsafe to himself , and no way useful to us . if therefore our author , duly conscious to himself of human frailty , and diffident of his own learning and judgment , fears to come upon the stage in this censorious age , wherein the illiterate blush not to condemn the knowing : we are at once to acknowledge his modesty , and commend his prudence , not to envy him the privacy he affects . and this is enough for me to say , and for you to know concerning him . as for my self ; if i , from good will to all mankind , desire to make common to that benefit , which seems have been at first intended to be inclosed and kept peculiar : i neither invade the authors propriety , nor abuse the freedom permitted to me , but charitably dispense to many the wealth i might have kept intirely to my self . and this too , following the writers example , i choose to do unknown ; that my charity may be exempt from all suspition of ostentation , and that i may prevent all thanks of those that take it in good part . so that in fine , all i ask of you is , that you would freely enjoy the pleasure of his studies , and of my benevolence , without thinking your self obliged to either , without perturbing the quiet we both hope from our belov'd obscurity . this , good reader , you cannot with equity deny to men , who leaving to censure the liberty wherein chiefly it delights , do by concealing the more expose themselves . it remains only , that i add a short advertisement concerning the book it self , of the good reception whereof by the learned and the iudicious , i am not a little solicitous , and from whose fate i may learn how rightly to estimate the small judgment i have in discourses of this kind . permit me therefore to inform you , that it was written by the author to no other end , but to confirm his faith by inquiring into the reasonableness and purity of it , and to augment his piety toward god. in a word , that he might offer to the divine majesty , not the sacrifice of fools , but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , worship consentaneous to right reason : as appears from the laudible profession he makes in the fifth article of the second chapter of the first part ; and from the plainness and simplicity of the stile , such as serious men use , when they commit to writing their collections and remarks for their own private use ; and ( what is yet more convincing ) from the scope of the whole disquisition . the design then you will ( i presume ) acknowledge to be good , worthy a philosopher and a christian. and if he hath pursued it so far as to satisfie his own reason , why may not i hope from the same cause the like good effect also in the minds of others ? from this , and only this hope it is , that i permit this compendium of natural and positive divine laws to see the publick light. if my hope be by wiser heads found to stand upon an infirm basis ; the charity of my intention may at least excuse , if not expiate the error of my understanding . the contents of the first part . chap. i. of right and law in general . pag. . ii. god's right to soveraign dominion over all things in the world. iii. of the precepts of the sons of noah , in general . . iv. of extraneous worshipor idolatry v. of malediction of the most holy name , or blasphemy . vi. of shedding blood , or homicide . vii . of uncovering nakedness , or unlawful copulation . viii . of theft or rapine . ix . of iudgments , or the administration of iustice in courts of iudicature ; and of civil obedience . x. prints of the six precedent natural precepts , found in the book of job . xi . of not eating any member of an animal alive . of the second part . chap. i. the preface to the decalogue explained . page ii. the first precept explicated iii. the second precept explicated iv. the third precept explicated v. the fourth precept explicated vi. the fifth precept explicated vii . the sixth precept explicated viii . the seventh precept explicated ix . the eighth precept explicated x. the ninth precept explicated xi . the tenth precept explicated xii . evangelic precepts reduced to those of the decalogue . appendix , containing a short history of the iews talmud . the concordance of natural and positive divine laws . part i. containing a brief explication of the precepts of the sons of noah , and reduction of them to the dictates of right reason . chap. i. of right and law in general . what is by the ancient wise men of greece , as well philosophers as legislators , call'd sometimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sometimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sometimes 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; by the latines , ius ; and by the english , right ; may not unfitly be defined to be the rule , measure , and index of what is lawful , and what vnlawful . this is consider'd in a twofold sense , first as it is obligative or binding , and then it is called also preceptive or commanded : or secondly as it is only permissive , and then it is named also concessive . in the former sense it takes place in those things that are commanded or forbidden , as to give every man his due , not to swear falsly , &c. in the later , it is found in those things whereof the use is neither commanded nor forbidden , but yet notwithstanding permitted ; as in the act of buying , selling , manumission , in the conditions of contractors used to be added to their contracts , and in others of that kind . but both these kinds of right belong , either to all mankind universally , that is , to all nations , or not to all . that which belongs to all mankind , or all nations , is again distinguish'd into natural and divine . the natural is that which is manifest from the light of mans natural reason , or the right use of his faculty of understanding and inferring ; elegantly defined by tertullian ( lib. de corona militis ) to be lex communis in publico mundi & naturalibus tabulis scripta ; and call'd by the two best of all the greek historians , thucidides ( lib. . ) and polibius ( lib. . ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , communia hominum jura ; and by iurisconsults , ius gentium primaevum . the divine , that which hath been ordain'd and declar'd by divine oracles , committed to writing in the holy bible . and this , as well as the natural , deserves to be acknowledged to be ius gentium vniversale , seu omnium commune . because all the laws of nature , are the laws of god himself ; because his positive or written laws are no other but sanctions or explications of his unwritten or natural : and because whatsoever is obligatory in either natural or divine universal right , either from the nature of the thing it self , or rather from the auctority of the author of nature , is by all men held to be immutable . whence that maxime so often asserted by philosophers , theologues , jurisconsults ; iura naturalia esse immutabilia . which cannot be truly said of right permissive , whether natural or divine , extending to all mankind . for that this is variously mutable , according to the judgment of governors , is manifest to every man of common sense , even from the name permissive , and from dayly experience , which teaches that permissive right admits obrogations , abrogations , temperaments , and limitations , i. e. mutations . whereas the obligatory , tho' it admit indeed of increments or additions ( namely such by which it may be either more firmly , or more decently observed ) yet admits no mutations , by which its force or vertue may be in the least diminished . from the additions of obligatory right , and the mutations of permissive , there hath risen up that other right , which being of less extent , belongs not to all nations , or to mankind universally , but only to some parts of it , and is wont rightly enough ( as being put or founded , whether by god , or by men ) to be call'd positive , and sometimes also civil , and an additament of right reason natural . this positive right may with good reason be distinguished into that which is proper and singular to some one nation or people coalescent into a society ; ( such long ago was that patria potestas among the romans , and that which was in use at athens , mention'd by demosthenes ( in orat. contra aristocratem ) and that which is common to many nations . which is again distinguish'd into that , to the observation whereof more nations than one are at once , equally , and in common obliged : and that under which many nations live , not at the same time , equally , and from any common obligation , but singly and by accident . of this triple species of positive right the first may conveniently be term'd right simply civil , as pertinent to some one city or commonwealth : the second , common right of many nations , because of the communion of obligation : the third , civil or domestick right of some or many nations , because the obligation under which they are , is only domestick and civil to each of them singly , not common to all . for example , the twelve tables brought from athens to rome obtain'd to be of equal force in both nations , the attic and the roman : but from no communion of obligation or conjunction of peoples . the right of those tables therefore might much more commodiously have been call'd , the civil right of these nations , than simply the right of both , because this later phrase indicates a communion . but as for the common right of more than one nation founded upon communion of obligation ; this likewise is to be parted into two branches : viz. that which is imperative to many nations or peoples , and that which is intervenient . by imperative , we mean that right of nations , which is or ought to be observ'd by many nations or peoples , otherwise subject to divers governments and soveraign powers , from an obligation common indeed to every one of them , and equal , but deriv'd from the command either of god or of man. such was the right of the dolopes , magnetes , phthiotae , thessali , and other peoples of graecia , who by a common obligation receiv'd from the command of acrisius king of the argives , were under the jurisdiction of the great amphictyonic council at athens . such also was the singular right of war by god prescrib'd not only to the hebrews , but to the canaanites too , with whom they were to make war. for both nations were obliged though diversimodè , by the authority of the imperant . and when divers nations convene in like manner into the same right , by the authority and command of the pope of rome , that is to be call'd an imperative right of those nations . but we call the intervenient right of nations , that which ariseth , not from an empire common to many , but from intervenient pact or use of customs , and is wont to be call'd ius gentium secundarium . heads of this right are remarkable in the right of demanding satisfaction for injury , of proclaiming war , of embassies , of captives , of hostages , of leagues , of commerces , and other like things usually intervenient among divers nations . for what right soever , in these things , is made up of the additions that have come to the universal obligative right of nations , and of the mutations that have come to the universal permissive right , among divers nations ; all that , and not more , deserves the name of either imperative or intervenient . the rest , 't is evident , retains the name of the universal or most ancient right of nations . the caesarian right also , which is so much insisted upon in the above-mention'd heads of intervenient right , when they come to be discuss'd by jurisconsults , so far forth as it agrees with the universal right of nations , whether natural or divine , is also to be put under the same name : but so far as the heads and some decrees of it , which are not of universal right , are made use of from the consent of some nations , with whom they are in force ; it is most fitly to be denoted by the title of right intervenient among those nations . and in fine , so far as the same caesarean right is by some single nations receiv'd into their forum or court of judicature ; it is to be named the civil right of some nations , or their domestick right . from this consideration of the nature , various notions , and differences of right , we may easily be able to distinguish betwixt those two things , which many learned writers confound , using the words right and law promiscuously . for from the premisses it may be collected , that right consisteth in liberty of doing or not doing : but law obligeth to do , or not to do , and therefore right and law differ as liberty and obligation , which about the same thing are inconsistent . hence we may define natural right , to be the liberty , which every man hath of using , according to his own will and pleasure , his power to the conservation of his nature ; and ( by consequence ) of doing all things that he shall judge to be conducive thereunto : understanding by liberty ( what that word properly signifies ) absence of external impediments . and natural law , to be a precept , or general rule excogitated by reason , by which every man is prohibited to do that which he shall judge to tend to his hurt , harm , or wrong . by nature all wise men understand the order , method and oeconomy instituted and established by god from the beginning or creation , for government and conservation of the world. all the laws of nature therefore are the laws of god : and that which is called natural , and moral , is also divine law : as well because reason , which is the very law of nature , is given by god to every man for a rule of his actions ; as because the precepts of living , which are thence deriv'd , are the very same that are promulged by the divine majesty for laws of the kingdom of heaven , by our most blessed lord iesus christ , and by the holy prophets , and apostles ; nor is there in truth any one branch of natural or moral law , which may not be plainly and fully confirm'd by the divine laws delivered in holy scripture : as will soon appear to any man who shall attentively read and consider what our master hobbs hath with singular judgment written in the th . chapter of his book de cive : where he confirms all the laws of nature by comparing them singly with divine precepts given in the old and new testament . whoever therefore desires clearly to understand the reasonableness , equity , justice , and utility of moral laws , and the true causes of the obligation under which he is to observe them , in order to his felicity , as well in this life , as in that which is to come ; ought most seriously and profoundly to consider the divine laws or precepts recorded in that collection of sacred writings call'd the bible . which i , though of learning inferiour to so noble an undertaking , and subject by the nature of my profession and studies to various distractions every day , yet resolve with my self to attempt , according to the module of my weak understanding , not for information of others , but for my own private satisfaction . chap. ii. god's sovereign right to dominion over all things in the world. that god is by highest right soveraign lord , and monarch of the universe , having in himself most absolute power both of legislation , and of iurisdiction ; is sufficiently manifest even from this , that he is sole author and creator of the world and all things therein contain'd , and doth by his most wise providence perpetually conserve and sustain them . and that he only can relax or remit the obligation under which his subjects are to observe the laws by him given for their regimen ; and to whom he pleaseth pardon the violation of them : is no less manifest from his very supremacy . so that it belongs not to the right of any mortal ruler , either to command what god forbids , or to forbid what god commands . the reason is , because , as in natural causes , the inferiour have no force against the efficacy of the superior ; so it is in moral also . upon which reason st. austin seems to have fixt his most discerning eye , when teaching that the commands of kings and emperors , so far as they contradict any divine command , cannot impose an obligation to obedience ; advances to his conclusion by the degrees of this climax or scale . if the curator commands somewhat , it is not to be done if the proconsul forbids . herein we contemn not the power , but choose to obey the higher . again if the proconsul bid one thing , and the emperor injoin the contrary , without doubt you must give obedience to the emperor . therefore if the emperor exact one thing and god another ; what is to be done ? god is certainly the greater power : give us leave , o emperor , to obey him. from the same reason that most wise emperor , marcus aurelius also said , the magistrates judge private men ; princes the magistrates , and god the princes : and seneca the tragedian , quicquid à vobis minor extimescit , major hoc vobis dominus minatur : omne sub regno graviore regnum est . for his sense is , deum esse supra omnes summates hominum , regum timendorum in proprios greges , reges in ipsos imperium est iovis . this monarchy of god is double , natural and civil . by the natural , is to be understood the absolute dominion which from the creation he hath exercis'd , and at this day doth exercise over all men naturally or by right of his omnipotency . by the civil i understand that which in the holy scriptures is most frequently named the kingdom of god , and which is most properly call'd kingdom , because constituted by consent of the hebrew nation , who by express pact or covenant chose god to be their king : he promising to give them possession of the land of canaan , and they promising to obey him in all things . but this kingdom being by divine justice , for the disobedience and many rebellions of that perverse people , long since extinct , they now remain in the same state of subjection with all other nations , namely under the natural empire of the universal monarch god. but ( what is worthy our more serious remark and consideration ) tho the common-wealth of the hebrews , the form of whose government may be most properly call'd a theocraty ( for , the supreme ruler and president was , not moses , but almighty god himself ) hath been , so many ages past , dissolv'd : yet the most excellent positive divine laws , principally those comprehended in the decalogue , upon which that empire was founded , have lost nothing of their sanction and original force , but still continue sacred and obligatory , not only to the posterity of the hebrews , but also to all the sons of men of what nation soever . which the learned cunaeus hath ( de rep . hebraeor . cap. . ) with singular judgment observ'd in words of this sense . the laws of other nations , inventions of humane wit , are enforced only by penalties , which by time , or through the sloath of governors , lose their terror : but the iewish ordinances , being the decrees of the eternal god , not weakned by either continuance of time , or softness of the judges , remain still the same ; and when the ax and the scourge are no longer fear'd , mens minds are nevertheless kept in awe by religion . and as the stability of these laws given by moses , whom god had consituted his representative and vicegerent in the promulgation of them , to the people of israel , is by cunaeus rightly referr'd to the eternity and immutability of the divine decrees : so is it lawful for us to assert the vniversal extent of them from this reason , that the divine law of the decalogue is an explication of the law natural written in the mind of every individual man from the beginning ; though we must at the same time acknowledge , that the very giving the same in precept to the iews , added a new sanction and obligation to the former ; so that the iew doing the contrary , not only offended in doing an act simply vitious , but also in doing an act strictly for bidden ; because ( as st. paul speaks rom. . . ) by the transgression of the law he dishonoureth god. that this different obligation of laws natural and divine may be yet more clearly understood , we observe , that the determining of human actions ariseth , either from their own nature ; as to honour and worship god , is due ; to lye , unlawful of it self : or from the positive divine law. those of the former sort are referr'd to the law natural : those of the latter are such as have been prescribed by god , some to single persons , namely to abraham , isaac , iacob , moses , and other servants of god : among all people , to israel alone god prescribed many positive laws pertaining to their religion , which was the same with their politie . to all mankind , some things were commanded for a time ; as the observation of the sabbath , presently after the creation , as many of the most learned think ; the law of not eating bloud , or the strangled , after the floud : others to last for ever , as the institutions of christ , concerning excommunication , baptism , the supper , &c. if there be any more of that kind . so that one and the same vitious action is more or less offensive to god , according to the determination of it to be so by positive law , or by meer light of reason , i. e. by law natural . because though both laws be divine , yet the obligation of the former is double , of the later single . having thus , briefly indeed , but plainly asserted gods right to the monarchy of the whole world ; distinguish'd his natural dominion from his civil ; defined what is law natural , what positive divine ; and shewn the difference betwixt that and this , as to their obligation : it seems to me , that i have not only prevented all such erroneous conceptions , which otherwise might arise , either from ambiguity of the words , right , dominion , government , law , and obligation ; or from confusion of various notions of single things : but also laid the corner stone as it were , of the little structure i propose to my self to erect , in order to the stronger defence of my mind against allurements to do evil , i. e. to violate any of god's laws . for in this illaborate exercise of my pen , i have no other end or design but this ; to investigate and examine the perfect concordance betwixt the laws of nature , and positive divine laws , principally those of the decalogue ; to the end that being at length fully convinced of the double obligation incumbent on me not to transgress any one of the latter sort , i may in the little remnant of my days do my best devoir to live more inoffensively both toward god , and toward men. for certainly who is throughly conscious of the justice , equity , and decency of religious duties , will be so much the more solicitous to perform them : because the more the understanding is illuminate by the rays of truth and evidence , by so much the less prone it is to be imposed upon by the specious pretexts of passions , and by consequence the more apt to direct its handmaid the will in the right way to felicity ; which consists in the knowledge , love , and veneration of god. as for method ; the work in which my thoughts are at present versed , will be in bulk so little , i need not be over curious what form to give it ; the materials so few , i need not be solicitous in what order to range them to the best advantage . without affectation therefore of ornament from either of those two things , and without farther amusing my self with variety of distinctions ( many times of more subtilty than use ) i will content my self with tracing , as faithfully as i can , the footsteps of time , or ( to speak a little more plainly ) reciting and considering the various moral laws , whether meerly traditional , or written , given by god , first to noah and his little family , when soon after the deluge they began to replenish the earth with inhabitants ; and then to moses , when he constituted and established the most admirable common-wealth of the hebrews , in the same order in which they are said to have been delivered ; and breifly comparing them singly with the laws of nature ; it being ( as i just now profest ) my chief scope in this disquisition , to find the concordance betwixt these and those . chap. iii. of the precepts of the sons of noah in general . i begin from the moral laws , which , according to the tradition of the talumdic masters , were given to noah and his sons soon after the floud , and which are thence named praecepta noachidarum . which before i recite , three things not altogether unworthy to be noted , for our more facile understanding of their authority and extent , are to be premis'd . the first , that by the patronymie noachidae , the rabbins unanimously understand all nations besides the hebrews , who affect rather to be call'd abrahamidae , from the father of all the faithful , abraham . the second , that the same rabbins , firmly believing , and confidently teaching , that there hath been no age wherein these precepts have not obtained ; therefore take them for the natural and common right of all men . whence we may receive a glimps of light whereby to discern , both what they thought of the religion of the ancients before the law , and upon what condition it was lawful for strangers to reside in the land of israel , after the law. for , while the hebrews were sui juris , i e. lived under no laws but those of their own republick , within their territory no dwelling was permitted to any idolatrous gentile . but the stranger , who in the presence of three men , had taken upon himself the seven precepts of the sons of noah , and promised to observe them , was held to be proselytus domicilii ; and tho' he were neither circumcised , nor baptized , might nevertheless , as a sojourner , dwell among the hebrews . the third , that tho' in the mishna or collection of ancient traditions made by rabbi iehuda , surnamed hakadosh , the saint ( who lived under the three antonins , pius , marcus , and commodus , and finish'd his syntagme of the mishna in the year . from the destruction of the temple , but of the christian aera . ) there be no memory of these precepts : yet in the babylonian gemara or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] complement , compos'd by rab. ase , about years after the former , they are not only mentioned , but with sacred respect commended to posterity ; so that even our prince of antiquaries mr. selden , thought it a task well worthy his diligence , and admirable learning , to explicate and comment upon them in his seven books de iure naturali & gentium ; tho' he had found the masters themselves embroil'd in a kind of civil war about the number of them , some accounting but six , others seven , others eight , and others again adding two or three more . as appears from the gemara it self , where ( ad titul . sanhedrin . c. . sect . . ) is found this list of the precepts . traditur à rabbinis , septem praecepta imperata esse noachidis ; de iudiciis , de maledictione numinis , de cultu extraneo , de revelatione turpitudinum , de sanguinis effusione , de rapina seu furto , de membro animalis viventis . r. chanina dixit etiam , de sanguine viventis : r. chidka etiam , de castratione ; r. simeon etiam , de magia ; r. eliezer etiam , de heterogeneorum animalium admissione , arborumque insitione . and from rabbi moses ben maimon ( vulgarly maimonides and rambam ) who saith , that the six former were delivered to adam ; that of abstaining from any member of a living creature , to noah ; that of circumcision , to father abraham ; in halak melakim , c. . but the major part of these learned commentators upon the mishna give their suffrages to no more than seven . of those therefore , supposing them to be genuine and universal , i choose to speak in this treatise : preferring these two that belong to religion or divine worship , to the rest which concern the mutual offices or duties of men. chap. iv. the first precept . of extraneous worship or idolatry . by extraneous worship , the ancient egyptians seem to have understood and detested only whatsoever [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] their parents had not taught them ; as may be collected from that prayer , or apology rather , used by them at funerals , translated from the egyptian tongue into the greek by euphantus , and from him transmitted to posterity by porphyrius in lib. de abstinentia . sect . . for in this apology , one of the overseers of the obsequies , personating the defunct , and speaking in his or her name , pronounces among many other these words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : ego enim deos , quos mihi parentes commonstrarunt , piè colui quamdiu in hoc saeculo vixi . but the hebrews thereby understood , that the worship of any creature whatsoever , as well of angels , and bodies celestial or terrestrial , as of images or idols , was strictly prohibited . for , to acknowledge and worship one god , and him the true god , was to them , as it is now to us christians , the fundament of religion . this difference betwixt the egyptian and hebraick religïon , even tacitus treating of the iews ( hist. l. . ) clearly enough observes in these words ; corpora condere , quàm cremare , è more aegyptio ; eademque cura ; & de infernis persuasio . coelestium contrà : aegyptii pleraque animalia , effigiésque compositas venerantur ; judaei mente solâ , unumque numen intelligunt ; profanos , qui deûm imagines mortalibus materiis in species hominum effingant ; summum illud & aeternum , neque mutabile , neque interiturum . itaque nulla simulacra urbibus suis , nedum templis sunt . from the times of abraham , idolatry was held by the hebrews to be of all crimes the greatest , and to be fled from as the worst of plagues : but that which is interdicted in the decalogue and other laws , seems to have respect to the manifold idolatry of the egyptians . in the parts of lower egypt , the highest honour and veneration was given to a sort of buck-goats with long shaggy hair , call'd seirim : and the israelites placed there , were grown so mad with this mendesian 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that they needed a special interdict to restrain them . which they receiv'd in this form ( lev. c. . v. . ) they shall no more offer their sacrifices [ pilosis ] unto devils , after whom they have gone a whoring . where not only our translators , but maimonides ( in more neboch . part . cap. . ) by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 sive 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , understand devils appearing to their votaries in the shape of hee-goats with long hair . the same rabbi ( doct. perplex . lib. . cap. . pag. . ) saith moreover ; of the zabians there have been some , who worship'd daemons , and believ'd them to have the form of male-goats , and thence call'd them also seirim , i. e. goats . which foolish and ridiculous opinion was in moses's time diffused far and wide ; as appears from the above recited prohibition , non sacrificabunt ultrà sacrificia sua lasseirim , hircis , i. e. daemonibus ita appellatis : and was the true cause why the eating of such goats was piacular among the zabians , by which name he understands chiefly the mendesii , people of a province in lower egypt . to enumerate all the various kinds of idolatry used by the egyptians in the time of the israelites servitude under them , would require a large volume . for not contented to adore all the host of heaven , by an idolatry common to them with many other nations ; they were then grown so impiously devout , that they form'd to themselves deities of all sorts of animals , four-footed beasts , fowls , fishes , serpents , insects , not excepting plants , trees , and herbs . so that it was not without reason that moses , solicitous to extirpate the reliques of idolatry out of the hearts of the infected israelites , at once , and by one universal antidote ; gave them this command ( deut. c. . v. . & . ) you shall utterly destroy all the places wherein the nations which ye shall possess , served their gods , upon the high mountains , and upon hills , and under every green tree . and you shall overthrow their altars , and break their pillars , and burn their groves with fire , and hew down the graven images of their gods , and destroy the names of them out of that place . yea more , he made it unlawful for them either to enter into a league of what kind soever with any people serving idols intra solum israeliticum ; or to have conversation , or commerce with them . ( exod. cap. . ver . . and deut. cap. . ver . . ) before the law , iacob the patriarch erected [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , cippum , statum ] a pillar , ( gen. . . ) and moses , before the tabernacle was built , rais'd an altar , and twelve titles ( exod. . . ) but lest from these conspicuous examples occasion might be given to idolatry , the law forbid such things also . ( levit. . . ) but these laws , peculiar to the israelites , did not per se oblige a noachid or stranger ; to whom living without the hebrew territory , it was lawful to raise such pillars , altars , monuments , &c. at his pleasure ; provided he did it not in cultum extraneum : within the promis'd land , lest from such example encouragement might be taken for idolatry , it was no more permitted to the stranger , than to an israelite , either to set up a statue , or plant a grove , or make images , or do any other thing of that kind , no not meerly for ornament sake ; as mr. selden hath truly observ'd ( de iure naturali & gentium lib. . c. . ) the rabbins hold a humane image protuberant to be unlawful : but not that which is made in plano , flat , or in concavo , in a hollow . of caelestial bodies neither prominent , nor plane made for ornament , were lawful ; but made for teaching or learning , as in diagrams astronomical , and the like , they were permitted . other figures , as well an israelite , as a noachid might form as they pleas'd . of the same respect is that interdict ( deut. . . ) non inferes quidpiam ex idolo in domum tuam , thou shalt not bring ( as our translation renders it ) an abomination into thy house : which the iewish masters thus interpret . to have , use and enjoy an image made only for ornament , was lawful , the same being part of domestick furniture : but one made by a gentile for worship sake , was not to be admitted into promiscuous use with other utensils ; nor was it permitted , either to possess , or to sell victims , oblations , vessels , instruments consecrated to idolatrous uses . nor was any thing , whose use had been interdicted , to be retain'd ; but either burned , or broken in pieces , and thrown into the air , river or sea : nay the very ashes or coals thereof were an abomination . but an idol it self , if melted or broken in pieces and applied to common uses by a gentile , before it came into the possession of an israelite , might be kept , and among other utensils commodious to life used : because the liquation , comminution , and application thereof to common uses by the gentile , was a manifest resecration or solution of the religion of it : and the idol being once resecrate , all furniture and utensils belonging to it , are so too . but whatsoever has not been made by man , as a mountain , fountain , river , four-footed beast , and other terrestrial things , the works of nature , tho' worship'd as an idol ; the use and possession thereof was not prohibited . a grove or tree planted by a gentile for worship , or only to shadow , or adorn an idol was so abominable , that to an israelite , it was unlawful either to shelter himself from heat , cold , rain or wind under the boughs of it ; or to pass through it , if there were any other way ; or to eat the eggs or young of birds building their nest in the branches of it ; to bring home the wood for building , instruments of agriculture , or fewel , or to eat any bread or meat dress'd with fire made of the wood ; or to wear cloth woven with a shuttle of the wood ; or to make use of the ashes . and yet the use of herbs growing there , was not unlawful ; because the soil it self was unpoluted . now of all these things , whatever was unlawful to an israelite to do , or possess ; the same was equally unlawful to a proselyte of the house . and this is a summary of the most learned rabbins exposition of this first precept against extraneous worship or idolatry . chap. v. the second precept . of malediction of the most holy name , or blasphemy . so agreeable is this interdict to the law of nature or light of reason , that even the old egyptians themselves , tho' overspread with the leprosie of polytheism , acknowledged themselves under a most strict obligation punctually to observe it : as may be inferr'd from hence , that hermippus , in the life of pythagoras , whose doctrines were all deriv'd from egypt , among many other statutes of that sect concerning the soul's purification , &c. sets down this for one ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to abstain from all blasphemy . to the israelites god expresly gives the same . ( lev. . . ) keep my commandments and do them ; i am the lord ; ye shall not prophane my holy name , that i may be sanctified in the midst of the children of israel . now among the hebrews , a more diligent observation of the law is call'd sanctification of the divine name : and on the contrary , to perpetrate any thing against the law , is call'd prophanation of it ; as mr. selden hath out of the princes of their rabbins judiciously remark'd , de iure natur. & gent. lib. . cap. . the more notable interdicts of idolatry , homicide , unlawful coition , were not to be violated , tho' to avoid the danger of imminent death : for of a less danger no account is made . in time of publick persecution , life was not to be redeem'd by violation of any law. at another time , it was sufficient to violation of the law , to obey the person impellent by menaces of death , rather than to be kill'd ; at least if the act turn'd to the emolument of the impellent : as where work was to be done for him upon the sabbath , or if ten or more hebrews were not present . to a sick man it was lawful to eat things prohibited , to deliver himself from death . farther , a sin against more establish'd customs or manners and humane society , tho' not against the law , is a prophanation of the holy name . nor is such prophanation in any case observ'd to have been fully remitted to any man before the very moment of death ; according to that of isai. cap. . ver . . this iniquity shall not be purged from you till ye die . this 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , pollution or prophanation of the divine name , seems to be call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by the apostle , ( rom. . . ) but is not that which is interdicted to the noachid here in this second precept ; and naaman the syrian cleans'd from the leprosie ( . of kings c. . v. . ) is brought for an example . the difference is clearly shewn by mr. selden ( de iur. nat. & gent. lib. . cap. . ) whose words therefore i here faithfully translate . the blasphemy or malediction by this precept forbidden , is that most horrible wickedness [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . ] execration of the divine name , when any reproach and audacious contumely is openly and maliciously thrown forth against god ; such as was cast forth by those most impious miscreants , the son of shelomith ( levit. . ) and rabshakeh's ( kings . ch . . v. . ) also when the divine majesty is understood to be knowingly and proudly denied , from the consequence of any act or profession : as when any man , not from ignorance , but out of malapertness and pride , professeth and endeavors to perswade others , that idolatry is to be imbraced ; this man , tho' he hath himself worship'd no idol , denies god by consequence , and is to be held a blasphemer . and against this most execrable impiety is turned the edge of that sacred law ( numb . . . ) but the soul that doth ought presumptuously , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] with an high hand , whether he be born in the land , or a stranger [ ex proselytis , tam domicilii quam justiciae ] the same reproacheth the lord ; and that soul shall be cut off from among his people . upon which law maimonides commenting ( more neboch . pa. . c. . ) saith ; no man so sinneth , but he into whose soul another opinion , that is repugnant to the law , hath crept . the scripture there speaks also de cultu extraneo , because that is opposite to the very foundation of the law. so that a balsphemer is equal to an idolater , both denying the fundamental principle of all religion . other sins committed from error , or ignorance , or force of concupiscence or pravity of manners , were to be expiated by certain sacrifices , or corrected by other sorts of punishments : idolatry and blasphemy always to be punished by excision or cutting off , to be inflicted by divine vengeance ; but blasphemy also by stoning , ( levit. . . ) and these explications of the hebrew doctors seem to me sufficient to evince the equal obligation of these two precepts concerning divine worship , and common to the noachides with the israelites . i proceed therefore to the rest , which concern the mutual offices of men. chap. vi. the third precept . of spilling blood or homicide . that this precept also was contain'd in the moral discipline of the ol● egyptians , is evident from the precedent apology of the overseer of the obsequie● in sacred use among them , in which he● in the name of the defuntct , makes thi● profession , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ▪ of other men i have kill'd none . and to 〈◊〉 noachid belongs that of gen. . . i wi●● require your blood of your lives . which is to be understood of incruent or bloodless homicide also of what kind soever . some interpret it of suicide or self-murder . whoso sheddeth mans blood , by man shall his blood be shed : not by judgment pronounced in court , but by natural right of talion , or like for like . and this interdict is renewed in the decalogue , thou shalt do no murder ; and elsewhere more than once in the mosaic body of the law. philo the jew ( de leg. special . praecept . . & . ) saith , the exposing of infants is among many nations , by reason of their native inhumanity , a vulgar impeity . to the hebrews it was expresly forbidden , either to extingusih a foetus in the womb , or to expose children . and tacitus could say , ( hist. lib. . ) augendae multitudini consulitur . nam & necare quenquam ex gnatis nefas . egyptians also , if we believe the records of diodorus the sicilian , the best of antiquaries , ( lib. . p. . ) were obliged to nourish all their infants , for increase of mankind , which highly conduceth to the felicity of their countrey . voluntary or wilful murder was , ex fo●ensi sententiâ , to be punish'd by the sword : but philo iudaeus ( de leg. special . p. . ) saith , the murderer was to be suspended or hanged upon a gibbet . he that killeth any man , saith moses ( levit. . . ) shall be put to death . ye shall have one manner of law , as well for the stranger ( or proselyte , of iustice , not of the house ) as for one born in your own country . for so the masters understand this text : and as for the punishment of this sort of homicide ; they have some differences betwixt the gentiles living within the territories of the israelites , and the natives and proselytes ritely circumcised . again moses saith ( numb . . . ) the revenger of blood shall slay the murderer , when he meeteth him [ without any place of refuge . ] now the right of the revenger of blood , in the territories of the israelites , belonged no less to the gentiles and proselytes of the house , than to the hebrews themselves , but whether it obtained among the noachides before the law , or among the egyptians , is uncertain : but that name seems to derive it self , not so much from the mosaic constitution , as from a custom more ancient . however , most certain it is , that the revenger of blood was the next heir of the slain . homicide by chance , or error , had right of sanctuary . of which right , or cities of refuge , the sacred law hath ordain'd many things ( numb . . ) and the masters deliver many necessary to the interpretation of the law. to a gentile , the priviledge of sanctuary did not appertain ; he was obnoxious to the revenger of blood : nor to a proselyte of the house , in the casual slaughter of one circumcised ; but he enjoy'd the right of asyle , when he had by chance slain another of his own kind or quality ; as mr , selden hath curiously collected ( de iur. nat. & gent. l. . ● . . ) who in the next chapter proceeds to the interpretation of divers other niceties concerning this precept , from the commentraries of the iewish masters of greatest estimation and authority . thou shalt not stand against the blood of thy neighbour , saith moses ( levit. . . ) that is , thou shalt not stand idle , when danger of death is imminent over one of thy own kind , stock or nation ; but shalt help to deliver him . the force of an aggressor with purpose to kill , also of a buggerer , of an adulterer , of an intestuous person , was to be hinder'd , tho' with loss of life , that they might not commit sin . and such wicked force was also ●o be punish'd by private force ; if it could ●e done , by blows ( not mortal ) or by ●utting off a member ; if not , rather than fail , even by killing . if an israelite shall have delivered an israelite , or his goods , into the power of a gentile , whether by fraud or by force : it was lawful either to slay him , or to give him up into the power of a gentile , that he might not betray or deliver up others in like manner . to kill an israelite a prevaricator ( i. e. a worshipper of idols , or a sinner in contempt of the divine majesty ) as also an epicurean ( i. e. an apostate denying the holy law and the prophesies ) it was lawful to any other israelite to kill him , either in publick with the sword , or by stratagem . for by his prevarication and apostacy , he is depriv'd of the title and priviledge of a neighbour , i. e. he hath ceased to be an israelite . by fraud to circumvent a gentile an idolater , to his destruction , was not lawful : and yet notwithstanding the law doth not command to deliver him from imminent death , seeing he is not a neighbour . other kinds of homicide there were , permitted to private men . a thief in the night breaking into a house inhabited , might be impunely slain . which is also in the platonick laws , and in those of the twelve tables . in child-birth , it was lawful , for the mothers preservation , to extinguish the foetus in her womb : but not vice versâ . for worshipping the calf , three thousand were slain , not twenty-three thousand as the vulgar . from the notorious example of phinehas the son of eleazar ( numb . . . ) was deriv'd ius zelotarum , the right of zelots , by which it was lawful for private men led by pious zeal , whensoever an israelite , openly and before at least ten israelites , violated the sanctity of the divine majesty , temple , or nation , to punish the wickedness in the same moment by beating , wounding , and even by slaying the offender persevering in his sin . by this receiv'd right of zelots , mattathias ( macchab. lib. . cap. . v. . ) kill'd a iew going to sacrifice after the grecian rite : and our lord iesus christ himself , as a private person , by whipping drove out money-changers and buyers and sellers violating the sanctity of the temple , without reprehension ; because they had prophanely made the house of prayer a den of thieves : and his disciples refer'd this fact of their lord to zeal of thy house . under pretext of the same right , the iews in their assembly ran upon our lord himself as guilty of blasphemy , and smote him on the face with their hands : and a servant of the high priest struck him presently , because he seem'd , by an irreverent answer , to have violated the sanctity of the high priest. in fine , under the same pretext , st. stephen was stoned to death , and a conspiracy undertaken against st. paul ; and at length in the iewish war sprang up from the same root a power of horrid villanies and dire mischiefs . from this universal interdict of homicide , what we read of abraham's readiness to immolate his son isaac , seems very much to derogate : and some there are , who think it to have been lawful to the hebrews , from the sacred law de anathemate , of a thing vowed or devoted , by voluntary consecration , to devote to death their sons and servants whom they had in their power ; and they affirm , that iephtha offer'd up his devoted daughter in sacrifice . yea iosephus ( antiq. l. . c. . ) professeth himself to be of this opinion : but hath been clearly convicted of error therein by his rival in the search of the iewish antiquities , our incomparable selden ; who ( de iur. nat. & gent. lib. . cap. . ) from rabbi kimchi's commentaries , and the very words of the sacred text , concludes most rationally , that iephtha , in accomplishment of his vow , built a house for his daughter in a solitary place , and brought her into it ; where she remain'd during life secluded from the sons of men , and from all secular affairs ; and it was a statute in israel , that the daughters of israel should yearly visit her , to condole her perpetual virginity . the father indeed is said to have deplored the cruelty of his vow , and rent his garments for sorrow : but not because he thought himself thereby bound to immolate her , but because he had cut off all hope of issue from her . so that she seems to have been rather the first nun in the world , not an example of a right granted , by the law de anathemate , to the iews of consecrating or devoting their children to death . for humane slaughter was by no right of the hebrews permitted , unless in case of legitimate punishment , and of just war : and then too the very act of killing was in it self reputed so hateful and impure , that it required solemn lustration of the actor , by virtue of this command ( numb . . . ) whoever hath kill'd any man [ malefactor justly condemned , or enemy in war ] and whoever hath touch'd a dead body , let him be purified , as well ye as your captives . chap. vii . the fourth precept . of uncovering nakedness , or vnlawful copulation . of matrimony both the original , and the necessity are derived from the very creation . male and female created he them ; and god blessed them , and said to them , be fruitful , and multiply , and replenish the earth . which was repeated to the sons of noah soon after the deluge . from natural right , was interdicted coition with mother , with step-mother , with anothers wife , with a sister of the same venter , with a male , with a beast saith mr. selden ( de iure nat. & gent. lib. . cap. . ) to the children of adam indeed it was of absolute necessity not to observe the fourth branch of this natural interdict , because the males had no other females , with whom to conjoin themselves , besides their uterine sisters : but all the rest have at all times been unlawful . nevertheless , after mankind had been sufficiently multiplied , even till the law was given , the germane sister , i. e. of the paternal blood only , was not interdicted to the brother . abraham saith of sarah , in truth she is my sister . for she is daughter of my father , tho' not of my mother ; and she became my wife . and thence they collect , ( that i may repeat the words of clement of alexandria , stromat . . ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; that uterine sisters ought not to be taken for wives . also solon the athenian permitted the marriage of sisters begotten by the same father , not those born of the same mother ; as philo iudaeus ( de spec. leg . p. . ) delivers . and he had reason , more perhaps than he or any man else then understood . for if the curious observations of dr. harvey , de graaf , swammerdam , and other anatomists of this our age be true ( as doubtless they are ) the father contributes much less to the generation of the foetus , than the mother doth . he gives only fecundity to the egg , in and of which pre-existent in her ovary the foetus is formed : she gives the seminal matter , the augmenting nourishment , the cherishing warmth , and the secure closet in which it is conserved and brought to perfection . and therefore the consanguinity betwixt brothers and sisters of the same womb seems to be naturally greater than betwixt those born of divers mothers , but of the same father : and by consequence , the interdict of marriage to those , is founded upon more of natural right . but this reason being occult to solon , i am inclin'd to think , that in making this law against marriage of brother and sister uterine , either he follow'd the example of the hebrews , or had respect to this proverbial saying , the mother's is still the surest side . to which the lacedemonian lawgiver seems to have given no belief at all . for he on the contrary ( as philo the most learned iew hath recorded in the place just now cited ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , permitted marriage to vternine brother and sister , not to those of the same father : persuaded perhaps , that the seminal principle deriv'd from the father is more energetick , than that proceeding from the mother , in the work of forming organizing , augmenting , and perfecting the faetus . but among the egyptians , by a constitution or custom different from all these here mention'd , it was free to the brother to marry the sister either of the whole or the half blood , elder or younger , or equal ; for sometimes brother and sister are born twins . and this licence in process of time descended also to the grecians . for the example drawn form isis , obtain'd among the macedonians . arsinöe had ptolomeus ( thence named ) philadelphus , both brother and husband . yea , to honest this incestuous use by yet more illustrious examples , they say , the gods themselves affected such marriages , as most divine ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sic & deorum sacra connubia confecta sunt , saith theocritus ( idyll . . v. . ) and ovid ( metam . l. . v. . ) — dii nempe suas habuere sorores ; vt saturnus opim junctam sibi sanguine duxit ; oceanus tethyn , iunonem rector olympi . so that even from hence we may understand , that the deities of the west were traduced from egypt . hence also we understand , why philadelphus and arsinöe , by a kind of second marriage [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of deification , obtain the title 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , of brother and sister gods , in coins and marbles . among the persians , from the late example of cambyses , the like marriages were introduced ; as herodian ( l. . c. . ) hath transmitted to posterity . antiochus soter languishing with love of stratonice his step-mother , obtain'd her , even by his fathers consent , for his wife ; by an example sufficiently rare : as lucian ( de dea syria ) observes . but this matrimony was not unlawful by the right of the east , rather than by that of greece . in a word all kind of incest , adultery , yea [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] sodomy it self were by some of the ancients , and those too renowned for wisedom , accounted among things indifferent . concerning which sextus empiricus ( l. . c. . ) deserves above all others to be consulted . as for the hebrew constitutions concerning matrimony , the various degrees of consanguinity , in which it was interdicted to the israelites to marry , are either expresly set down by the writer of the books of moses in the eighteenth chapter of levit. or may be from thence by easie and familiar reasoning inferr'd ; as the prohibition of wedlock with the own daughter may be by an argument à majori ad minus , inferr'd from the interdict of contracting matrimony with the wifes niece , &c. the custom of marrying the wife of the brother deceas'd without issue , seems to be of remotest antiquity . for iuda the patriarch said to his son onan ( who died before the entrance of the israelites into egypt ) go in unto thy brothers wife , and [ jure leviri ] marry her , and raise up seed to thy brother ( gen. . . ) and this right moses long after by a singular law confirm'd ( deut. . . ) which our immortal selden occasionally considering ( vxor. ebr. l. . c. . ) observes , that some of the masters hotly contend , that the cause and mystery of this marriage of the surviving brother with the relict of the brother defunct , is to be fetch'd from the opinion of a metempsychosis or transmigration of the soul : which tho' commonly fathered upon pythagoras , was of much higher antiquity , and born in egypt . where also this jus leviri obtain'd , from their antique laws deriv'd down to the times of the emperor zeno. who ( in iustiniani cod. l. . tit . . leg . . ) saith ; the egyptians therefore by matrimony conjoyned to themselves the widows of their brethren , because they were said to remain virgins after the former husband's death ; for they thought , that when the man and wife had not conjoin'd bodies , the marriage seem'd not contracted , according to the mind of some law-makers . from the reason then , which the egyptians render of this law , it appears plainly , that among them the nuptial contract was not perfect without carnal knowledge . nor was it indeed otherwise among the hebrews before the law : but after , from the civil right of that nation , consent alone sufficed to contracting matrimony . before the law , women unmarried among the hebrews might freely permit the use of their bodies to whom they pleas'd : and of the egyptians sextus empiricus ( pyrrhon . l. . c. . p. . ) saith , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; the same was esteem'd honourable by many of the egyptians . this the law expresly prohibits ( deut. . . ) there shall be no whore of the daughters of israel . before the law , the matrimonial pact remain'd firm and stable , so long as both parties continued in consent : but was , either party renouncing , dissolved . among the athenians , the man had jus ejiciendi vxorem , and the woman jus relinquendi maritum ; as pollux ( l. . c. . sect . . ) records . the law of moses introduced the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] bill of divorce , that the matter might be brought before the judges the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] wifes dereliction or leaving of the husband , was long after induced by salome , sister of herod the great , in favour of her sex ; as iosephus ( antiq. lib. . cap. . ) before the law , lamech , abraham , iacob , esau , enjoy'd the pleasure of variety in many wives : which was permitted also by the law. elkanah had two , david more , solomon seven hundred princesses , besides three hundred concubines , tho' it were forbidden to the king to multiply wives , beyond the number ( say the masters ) of eighteen . iust so many wives rehoboam had ( chron. c. . v. . ) and iosephus ( antiq. l. . c. . ) calls them legitimate wives . of this license of polygamy among the hebrews , maimonides ( in halach ishoth c. . ) hath this memoir . it is lawful to marry many wives , even a hundred , either all at one time , or one after another ; nor hath the wife married before , any power of hind'ring the husband herein : provided he be of estate sufficient to maintain them all in food and raiment , according to their degree and quality ; and of strength of body sufficient to pay to each one her conjugal debt , i. e. once in a week at least to each , nor to run upon the score above a month with any one . concerning the oeconomy of these ancient polygamists , and how they preserved peace and quiet in their families , or seraglio's rather ; epiphanius ( haeres . . ) hath this brief remark ; tametsi quidam è patribus duas & tres vxores habuerunt , non tamen in una domo vxores fuerunt . they kept them in several houses , or several apartments at least , to prevent jealousy . by the law of moses , the high-priest was obliged to take a wife in her virginity , ( levit . . ) and because a wife , in the singular number , the masters , thence conclude , that he ought to have but one . besides that singular law ( deut. . . ) by which liberty was indulged to an hebrew souldier of lying once before marriage with a captive gentile ; the hebrews had no right at all given them , either of coition , or matrimony with strangers , not yet admitted into iudaism : nor was the same right granted to all proselytes of marriage with hebrews . after circumcision was instituted among the hebrews , before their entrance into egypt , the sons of iacob say to sichem ( gen. . . ) we cannot do this thing , to give our sister to one that is vncircumcised : for that were a reproach to us . of the gentiles , moses saith , thou shalt not contract assinity with them : thy daughter thou shalt not give to his son , nor shalt thou take his daughter unto thy son ( deut. . . ) which law extends , not only to the seven nations there named , but also to all uncircumcised nations whatsoever . of the circumcised , the law inroll'd ( deut . . ) decrees far otherwise . now the egyptians were circumcised , so were the idumeans by esau ( call'd also edom ) and the ishmaelites by their father ishmael , whom abraham himself circumcised . with the nephews and nieces therefore of proselytes of egyptians or idumeans , it was permitted to the israelites to marry : and solomon's nuptial contract with an egyptian proselyte , daughter of king pharaoh , was legitimate . by the mosaic law ( deut. . . & . ) neither eunuch , nor bastard might enter into the congregation of the lord. the marriages of such therefore were interdicted , even to the tenth generation . of eunuchs , because they were unfit for generation : of bastards , because of the infamy of their birth , the ignominy of the parents sin descending to their posterity . nevertheless the manzers or bastards were not prohibited to contract matrimony with either proselytes of justice , or libertines . if a maid-servant , being a proselyte , were join'd to a manzer , the son born of her of servile condition , was , by manumission , accounted a libertine : and by such emendation of his birth , both he and his posterity put off the ignominious name of bastard , and enjoy'd equal right with proselytes . an ingenuous ( i. e. a free-born ) gentile admitted into iudaism , was call'd a proselyte of iustice ; a servant , in the very act of his admission made free , was call'd a libertine : the same civil regeneration , and blotting out of former cognation ; the same participation of the iudaic right and name ; the same retention of peregrinity in their posterity , were common to both . also to both proselytes and libertines , marriages with either forreigners , or servants , were no less unlawful , than to natives ; among themselves , of whatsoever nation , they might freely inter-marry : nor did the diversly interdicted marriages with the aforesaid nations belong to them , but to the originaries only . when a gentile was made a proselyte ; or a servant , a libertine ; all his former consanguinity ceased , and was ipso facto utterly extinguished : so that his marriage with his sister or mother was not incestuous . among the sons of a female proselyte was no fraternity , unless both were as well conceiv'd as born in sanctity , i. e. after her conversion and admission into judaism . thamar ( the masters say ) was david's daughter conceiv'd of maacha , a captive and yet a gentile ; and amnon was his son by his wife ahinoam : thamar then was germane sister to amnon in respect of blood , but not by right of regeneration . she therefore saith to amnon ravishing her , nay my brother , do not force me ; for no such thing ought to be done in israel . — but speak rather to the king for he will not withhold me from thee . and she spake with understanding . for the consanguinity that was betwixt her and amnon , being by her mother's proselytism taken away , the marriage was lawful . a handmaid receiv'd into iudaism , her servitude retain'd , was not ritely capable of matrimonial right ; as mr. selden ( de iur. nat , & gent. l. . c. . ) and iosephus ( antiq. l. . c. . ) but to one manumitted , i. e. made free , as having obtain'd entire freedom , marriage was permitted . with a handmaid partly a libertine , the whole price of her liberty not yet paid , espousals were neither void , nor of full force . ( levit. . . ) whosoever lieth carnally with a woman that is a bondmaid betrothed to an husband , and not at all redeemed , nor freedom given her ; she shall be scourged : they shall not be put to death , because she was not free. death therefore , the vltimum supplicium , was not to be inflicted upon her , as in the case of adultery , because matrimony with a maid not perfectly redeemed , or made free , was not absolute . a proselyte man-servant , his servitude retain'd , was not participant of civil right ( extra sacra : ) nor was there among such , either any respect of cognation , or any legitimation of espousals . the maid-servant join'd by the master to the man-servant , ut in fructu prolem haberet ; was not his wife , but his contubernali● , chamber or bed-fellow : and this contubernium or bed-fellowship was dissolved by the same master at his pleasure ; nor was there , as to this matter , any thing of difference betwixt such servants , and beasts inured to labour in carriage or tillage . but the more humane and mild doctrine of christianity at length remitted this extream rigor of the iewish law , and introduced the right de servorum conjugio , by canon law , or right pontifical . by which also marriage is interdicted even to the seventh degree of consanguinity ( caus. . q. . & . ) according to the names of cognations , in the cesarean law , to which inheritances and guardianships are ascribed . but in the council of lateran , anno dom. . it was decreed ( cap. . ) that prohibition of matrimony exceed not the fourth degree of consanguinity and affinity . and in england ( by statute . of hen. . c. . ) the levitical constitutions concerning degrees of kindred to be excluded from contract matrimonial , are restored . chap. viii . the fifth precept . concerning theft and rapine . if by this precept , not only the taking away , whether privily or by open force , from another any thing that is rightfully his , but also the interring upon another any loss or detriment whatever , contrary to right and the common faith of mankind , be ( as certainly it is ) interdicted : then am i well assured , that the egyptians of old were under an obligation to observe it . for , reflecting upon the apology made by the overseer of the solemn funeral rites used among them , in the name of the defunct , more than once above-mention'd ; i therein find these words ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , neque eos deposito defraudavi , nor have i defrauded them of any thing committed to my trust . and that theft , which properly is clandestine stealing , was among them unlawful , is sufficiently manifest , even from the memorable example of the thief in herodotus ( lib. . c. . ) who plundering king rhampsmites's treasury , and being at length catch'd in a snare or trap by the neck , chose rather to have his head cut off , than to be detected . as for robbery indeed , they had a singular law , yet extant in the most faithful monuments of diodorus siculus ( lib. . p. . ) which was this : he gave command , that they who would addict themselves to robbery , should profess their names [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] before the prince of thieves , and solemnly promise to bring to him so soon as they could , whatever they had stolen ; and that the persons robbed should likewise send to him in a written bill or ticket a particular account of the things they had lost , with mention also of the place where , and of the day and hour when they were taken from them . by which means the goods being easily found , the loser recovered what was his own , paying the fourth part of the real value thereof . for since it seems impossible , that all men should abstain from stealing , the maker of this law found out a way , by which the whole thing stolen might be redeem'd for a small part of the price of it . by virtue of this natural interdict , as the talmudists ( gem. bab. tit . sanhed . c. . ) affirm ; every one of the sons of noah was obnoxious to punishment , if he had stolen any thing from gentile or israelite , either clancularly or openly , goods or persons ; or detained wages from an hireling , or done ought of that kind . in the mosaic law , theft is simply forbidden more than once ; in the decalogue , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt not steal : as of goods , so of men , as well servants , as free. ( exod. . . ) he that stealeth a man , and selleth him , or if he be found in his hand , he shall surely be put to death . which was interdicted also by the roman law ( f. f. de furtis . . ) the defraudation of wages is particularly prohibited . ( deut. . . ) other thefts there are of that kind , which are call'd not manifest : such as the deceitful removing the boundaries or marks of fields . ( deut. . . ) let him be accursed , that removeth his neighbours land-mark , namely the bounds which your fathers have put in thy inheritance . which is understood of the limits or boundaries set in the first distribution of the holy land : as also of the limits of the nations confining thereupon , without just cause of war. whence that of iosephus ( antiq. l. . c. . p. . ) terminos terrae movere non liceat , neque propriae , neque alienae quibuscum nobis pax est . sed cavendum nè auferatur , quod velut dei calculus in aeternum figitur . among the egyptians , fraudulent practices were severely punish'd , whether they were of publick or private wrong . witness diodorus siculus ( l. . p. . ) the law commanded , saith he , that both the hands should be cut off [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of those that adulterated mony , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] substituted new weights , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] counterfeited seals , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] scribes that wrote forg'd tables or instruments , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] took away any thing from written records or deeds , or obtruded false bonds . to the end that every offender might suffer punishment in that part of his body , with which he had offended against the law , and by an irreparable loss deter others from committing the like crime . to the hebrews it was forbidden , not only to use false weights and measures , but even to use any fraud of words in contracts , or to lie to anothers wrong . ( lev. . . ) ye shall not steal , neither deal falsly , neither lie one to another . upon which text the masters commenting , pronounce , that tho' an israelite accounted not a gentile for his neighbour , yet by the natural interdict of theft , gentiles were not to be any ways defrauded in negotiations . nefas est , say they , quenquam decipere in emptione & venditione , aut in consensum arte pellicere : quod pariter obtinet in gentilibus atque in israelitis . nevertheless , in the violation of this interdict , the babylonic gemara ( tit . sanhed . ) makes the right of foreiners different from that of natives . if a labourer working in a vine-yard or olive-yard , eat of the fruit thereof , at any other time than that wherein he laboured there , he was guilty of theft , tho' he were a noachid : but with an israelite the case was otherwise , he might eat at any time . and this difference arises from the mosaic right ( deut. . . ) when thou comest into thy neighbour's vine-yard , thou mayest eat grapes thy fill , at thine own pleasure , but thou shalt not put any into thy vessel . and so of the standing corn. by which law there was given to the israelites , not a licence of stealing , but iuris modus , a measure or rule how far the right extended . another example of this difference may be from the value of the thing taken away by stealth , which is not taxed by moses . by the institute of their ancestors , an hebrew was not lyable to an action of theft , if he filched from another , what was in value less than a prota ( which is the smallest piece of mony , the eighth part of an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , weighing half a grain of pure silver ; ) but a noachid was guilty of theft , if he took away by stealth any thing of less value than a prota ; and for so small a trifle was to be punish'd with the sword ; from this natural interdict , not from the civil law of the hebrews , which in such cases required neither attonement of the divine majesty , nor compensation of the neighbour . but capital punishment was , in the dominion of the hebrews , inflicted upon gentiles for almost every light offence . satisfaction for damage sustain'd , was always to be made , either by restitution of the very thing that had been taken away , or by payment of the price thereof and a fifth part more , to the heirs of the person that sustain'd the damage , if he himself were dead ; if he had no heir , to the lord , and in his right to the priest. ( numb . . . ) an israelite could not want an heir ; and therefore this law is to be understood to concern only the proselyte , who had no kindred , nor heir , unless one born after his regeneration ; nor had the occupant any right to the goods that had been by stealth taken from a proselyte deceas'd without heir . restitution of things lost ( saith mr. selden , de iur. nat. & gent. l. . c. . ) depended , not upon this natural interdict of theft , but upon that mosaic law in deut. . . to an israelite it was lawful to retain a thing that a gentile had by chance lost ; as left , and not yet occupied : but on the contre-part , 't was not lawful to a gentile to retain what he had found of an israelites . to deceive a gentile in reckoning , was unlawful : but if a gentile in casting up accounts , through error pretermitted any thing , the israelite had the same right to make his advantage of the mistake , that he had to retain what he had found of the others , and so might refuse afterward to pay it ; as maimonides ( galiz . waib . c. . ) also any thing lost by an israelite , if he despair'd to find it , became the finders own , as if it had been left of purpose : or if he could not so describe the signs or marks of the thing lost , as that it might be thence known , that it ought to be restored ; 't was then to be presum'd , that the owner had despair'd to find it . ( ibid. c. . ) in mutual commerce to impose upon another by an unequal price , was unlawful by that mosaic law in levit. . . which is understood ( saith mr. selden l. . c. . ) of goods moveable , as the law of redemption is of lands and houses . nor doth the same belong to a gentile : but if a gentile had brought damage to an israelite by an unequal price , he was by judgment of court to refund . from the receiv'd interpretation of the law , if the price were by a sixth part less than the true valor of the thing , nothing was to be refunded : if greater by a sixth part , the buyer might require his mony to be restored , the seller his ware. the punishment of theft was capital , from ius noachidarum , not from that of the hebrews , which required ( exod. . . ) five-fold , four-fold , or double restitution to be made . if the person convict were not able to give the satisfaction required , he was by sentence pronounced in court , adjudged to servitude of the actor or plaintiff , until his service should equal the price of the theft : but the restitution double , quadruple , or quintuple , was to be expected from his more prosperous fortune after his servitude . nor was a woman sold for her theft . neither was a man convict of theft adjudged in servitude to a proselyte , whether of iustice or of the house , much less to a gentile , but only to an hebrew ; who was obliged to give food , raiment , and a house , not only to him , but to his wife and children too : who notwithstanding were not the masters servants , but when the husbands and fathers servitude was ended , went away with him . and all this by virtue of that law in exod. . . to an hebrew servant adjudged by sentence of court , who had by a lawful wife fulfill'd the command of multiplication , it was permitted to have carnal conversation with a maid-servant that was a canaanite , that the master might be enriched by the children born of her : provided he were not kept apart from his legitimate wife and children , and that but one maid-servant were conjoin'd to one man-servant , not to two or more . other causes of servitude there were also among the hebrews . if thy brother compell'd by poverty , shall sell himself to thee , &c. ( levit. . . ) if any shall have sold his daughter for a servant , &c. ( exod. . . ) these addictions or sales were not permitted but in case of extream poverty , when the seller had nothing left , not so much as a garment , and that his life was to be sustain'd by the price agreed on . this selling of a daughter is understood only of a minor ; nor without hope of her marriage to the emptor , or to his son : without espousals , she obtain'd her liberty gratis , when first the signs of puberty appear'd upon her . also an hebrew was made a servant privately ; that by his addiction or sale he might not lose his dignity together with his liberty . now from this permission of an israelite reduced to extream want , to sell himself or his child for sustenance , lest he should die of hunger , it is sufficiently manifest , that from the very law of nature obtaining among the hebrews , it was not lawful to steal for even the greatest necessity . to exercise vsury was more than once forbidden by the hebrew law : and the lender upon vsury was compell'd , by sentence of court , to restore to the debtor ; what he had receiv'd for the loan of mony , as a thing taken away by stealth , ( deut. . . ) to a stranger thou maist lend upon vsury ; to thy brother thou shalt not lend upon vsury . to steal the goods of a gentile , was no less unlawful , than to steal from an israelite : but to take usury of a gentile was permitted ; of which the contract arises from the consent as well of the receiver , as of the giver . for neither from natural right was it unlawful to lend upon usury . by the statutes of their fore-fathers ( as mr. selden de iure nat. & gent. lib. . c. . delivers ) an hebrew was guilty of theft , who made any gain to himself by playing at dice , cockal , tables , or committing wild or tame beasts , or fowls to fight together , to make sport for the spectators . for they judged no gain to be honest , that arose from a contract depending upon fortune . but it was not theft , if a iew contending with a gentile won the prize or wager : tho' that also , as a thing inutile or unprofitable to humane society were prohibited . by the same ancient right , he also was a thief , who so bred up and taught doves or other birds , or beasts wild or tame , as that they should fly or go abroad , and alluring or decoying others of the same kind , bring them home , to the gain of their owner : nor was it lawful to go a fowling after pigeons in a place inhabited , or within four miles thereof : because pigeons were reckoned among the goods of other men , and were nourished by the owners , either for sacrifices , or for food . nor was it lawful for any man to build a dove-house in his field , unless he had ground of his own lying round about it , of fifty cubits extent every way . chap. ix . the sixth precept . of judgments , or administration of iustice in courts of iudicature ; and of civil obedience . from this natural precept , the masters ( saith maimonides , hal. melak . c. . ) acknowledge that the rulers ought to constitute judges and prefects in every city and town , both to judge all causes pertaining to the six precepts of the sons of noah , and to admonish the people of their observation of them . and so indeed the mosaic law also at length commanded ( deut. . . ) iudges and officers shalt thou make thee in all thy gates , &c. in many other places also , juridical prefectures are commanded to be constituted , according as the civil societies of men require . many and memorable things indeed hath that most excellent interpreter of eastern antiquities , mr. selden , written of the councils or assemblies of the ancient hebrews , in that interval of time that preceded the giving of the holy law on mount sinai : but to me ( i confess ) it doth not from thence appear , that any one of the patriarchs , before moses , exercised jurisdiction in foro , in court ; much less constituted juridical prefectures in cities and towns. the family of the hebrews , descending from sem to abraham , lived in mesopotamia : nor is it constant from the scripture , whether it were at that time sui iuris , or under the laws of the neighbour nations . the grand-children of abraham were toss'd to and fro in continual peregrination , until at length they sate down in egypt ; where they were so far from living by laws and customs of their own , that they groan'd long under a most cruel servitude . common-wealth of hebrews there was none . tribunal or court of judicature they had none , till after their deliverance from the egyptian bondage . then , and not till then it was , that the people of god being greatly multiplied , and divided into twelve tribes , the precept concerning judgments was given in mara ; exod. . . among the traditions of the masters we find mention'd often , the house of iudgment of methusalem ; also of sem , and eber : which yet are not to be taken for juridical prefectures , but for schools . witness maimonides ( more neboch . part . . c. . ) who saith ; the wise men speak of the prophets that were before moses , the house of judgment of eber , the house of judgment of methusalem , that is , the school of methusalem . all [ those ] were prophets , and taught men after the manner of preachers , or doctors . nor is it otherwise said of abraham , ( gen. . . ) i know him , that he will command his children and houshold after him , and they shall keep the way of the lord , to do iustice and iudgment , &c. for this was a thing oeconomical , not political . soon after the deluge , god proclaimed this edict ; ( gen. . . ) he that sheddeth mans blood , by man shall his blood be shed : not by judgment of any court of those times , but by natural right of talion . cum lex haec lata est ( saith the incomparable hugo grotius , in locum ) nondum constituta erant iudicia : aucto humano genere , & in gentes distributo , meritò solis judicibus permissum fuit jus illud primaevum . from these places of genesis therefore truly interpreted , no pretext can be drawn to excuse their error , who dream of i know not what publick tribunals or courts of judicature constituted before moses . neither can any be drawn from either of these two examples following . simeon and levi , in revenge of the rape committed upon their sister dinah , by sichem the hivite , slew him and his father and all the males of the city . but this was done by war , not from any sentence of a judicial court ; nor is this revenge of a private injury to be brought for an example here , where the question is concerning publick iudgments . it was told iudah , thamar thy daughter in law hath played the harlot , and is with child [ per fornicationes ] by whoredome . and judah said , bring her forth , that she may be burnt . but this saying of iudah , rashly pronounced , and in heat of anger , is by no means to be accepted for a iuridical sentence . for by the law of moses ( levit. . . ) the priests daughter was for fornication ( the masters understand adultery , not stuprum , whoredome ) to be burnt alive . but thamar was neither priests daughter , nor wife , but a widow expecting to be married to the brother of her husband deceas'd ; and this law was not then made . others think , that there was such a law peculiar to this family , to which iudah had respect : which is in truth repugnant to the ius noachidarum , by which it was accounted no crime for an unmarried woman , to humble her self to whom she pleas'd . of which right maimonides being conscious , and speaking of this our thamar , saith ; ante legem datam , coitus cum scorto erat sicut coitus hominis cum vxore suâ ; hoc est , licitus erat , nec homini fugiendus , [ velut delictum ] &c. thamar then , by virtue of this ancient right then obtaining , was not to be held guilty . whence other interpreters understand the combustion or burning mentioned in the text , to signifie , not burning to death , but a stigmatizing or marking in the forehead with an hot iron , by which she might be known to be an harlot . again , when thamar was brought forth ( not ad poenam , as the vulgar latin ) the whole matter being detected , iuda non cessavit eam cognoscere , that is , he took his daughter in law to be his wife ; such marriages being not unlawful before the mosaic law. this place is ( i acknowledge ) translated by the seventy seniors thus ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , non adjecti ultrà cognoscere eam ; vel , ultrà non cognovit eam : but the hebrew verb 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifying as well cessare , as adjicere ; i am inclined to prefer the foremr interpretation , and the more inclined , because the genealogy of king david and of our saviour christ is deduced from one of the male twins she brought forth at that birth . these examples therefore not sufficing to prove that for which they have been alledged by some interpreters , otherwise of profound erudition and solid judgment , and it remaining still difficult to demonstrate , that there were any such things in the world , as courts of judicature more ancient than those erected by moses : let us enquire what was the ius noachidarum in the common-wealth of the israelites , as to iudgment . they that preside over the tribunals of the israelites ( saith maimonides in hal. melak● c. . ) ought to appoint judges for the proselytes of the house , to hear and determine their causes according to the rights of the sons of noah : lest humane society should suffer any thing of detriment : and that they might constitute these judges , either by electing them out of the proselytes themselves , or from among the hebrews , at their pleasure . in another place ( viz. c. . ) he saith , a noachid is put to death by the sentence of one judge , and upon the testimony of one witness ; and that without premonition and the testimony of neighbours : but not upon the testimony of a woman . nor was it lawful to a woman to give judgment upon them , [ nor upon the hebrews . ] on the other side , by the civil right of the hebrews , three judges at least were to hear and determine causes pecuniary , and twenty-three to judge of causes capital , not without plurality of witnesses , and premonition . by the receiv'd right of the sons of noah , the violation of these seven precepts was punish'd in a proselyte of the house , with death inflicted by a sword : but an israelite , by his own right , was not to be punish'd with death , for violation of the three latter . no gentile that was under age of discretion , or blind , or deaf , or mad , was punish'd ; because such were not reputed sons of the precepts , i. e. capable to observe them . a noachid that was a blasphemer , or an idolater , or an adulterer with the wife of a noachid , and after that made a proselyte of iustice , was not to be call'd into judgment , but was free : but if he had slain an israelite , or committed adultery with the wife of an israelite , and were after made a proselyte of iustice ; he was to be punish'd , with the sword , for homicide ; with a halter , for adultery ; that is with the punishments of the israelites . by the vertue of proselytism , which was regeneration by the hebrew law , crimes committed against equals , yea also against god himself , were purged away : those committed against an israelite , not . all which nice differences betwixt the primitive right of the sons of noah , and the civil right of the israelites , punctually observed by judges in hearing and determining causes , in foro ; have been with vast labour collected out of the monuments of the masters , and with exact faith and judgment recited by selden the great in lib. . de iure nat. & gent. to whom i owe the knowledge of them , with many other remarkable things of good use toward the interpretation of divers difficult places in holy scripture . chap. x. prints of the six precedent precepts observable in the book of job . the same most excellent antiquary , to add the more of credit and authority to the six foregoing precepts of the sons of noah , hath also observed manifest prints of them in the book of iob , a man ( as st. austin , de civit. dei , l. . c. . ) of admirable sanctity and patience ; who was neither native , nor proselyte of the people of israel , but an idumean by descent and birth , and died there ; and by consequence could not be obliged to keep the laws of moses , of which perhaps , nay most probably , he never so much as heard . for this just man is said ( iob . . ) to have offer'd up victims , in the name of his sons ; not according to the form and rites ordain'd in the mosaic law , by which it was enacted , under the penalty of excision , that all sacrifices should be immolated at the door of the tabernacle : whence some learned men infer , that he lived before the law was given . others affirm , that there never was any such man , and the book that bears that name , is not a true history , but a parable , or poem ( for the original is written in verse ) concerning providence divine . which of these two opinions is to be preferr'd , i pretend not now to enquire . certain it is however , that this book contains many remarkable things pertaining to natural law , principally these following . of idolatry . ( chap. . v. . ) if i beheld the sun when it shined , or the moon walking in brightness : and my heart hath been secretly enticed , or my mouth kissed my hand : this also were an iniquity to be punish'd by the iudge : for i should have denied the god that is above . of blasphemy . ( chap. . v. . ) in the morning he offer'd burnt-offerings according to the number of them all . for job said , it may be that my sons have sinned , and cursed god in their hearts . of homicide . ( chap. . v. . ) if i rejoyced at the destruction of him that hated me , or lift up my self when evil found him . neither have i suffered my mouth to sin , by wishing a curse to his soul. if the men of my tabernacle said not , oh that we had of his flesh ! we cannot be satisfied . of adultery . ( chap. . v. . ) if my heart hath been deceived by a woman , or if i have laid wait at my neighbours door : then let my wife grind unto another , and let others bow down upon her ; or , as the vulgar latin , scortum alterius sit vxor mea . to turn about a mill , was among the ancient services of women . of theft , or the unlawful laying hands upon the goods of another . ( chap. . v. . ) if any blot have cleaved to my hands : then let me saw , and let another eat ; yea , let my offspring be rooted out . of judgments he speaks in chap. . from v. . to the end , where he relates , that himself had in the days of his prosperity sate on the tribunal , and been a prince among the judges of his nation . most evident it is then , that all these precepts of the sons of noah obtain'd among , and were sacred to the idumeans , who lived not under the laws of moses . chap. xi . the seventh precept . of not eating any member of an animal alive . this precept was added after the flood , according to the traditions of the rabbines ; who say , that the eating of flesh , which had been interdicted to adam , was permitted to noah : and understand this interdict to be comprehended in that of not eating blood. god at first said to adam ( gen. . . ) i have given you every herb bearing seed , and every tree , in which is the fruit of a tree yeilding seed : to you it shall be for meat . after he said to noah ( gen. . . ) every moving thing that liveth shall be meat for you ; even as the green herb have i given you all things : but flesh with the life thereof , which is the blood thereof shall you not eat . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , at carnem in sanguine animae non comedetis : where by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 anima , we are to understand the life . the eating of blood is , by the levitical law , forbidden in the same form with the immolation of a son to moloch . ( levit. . . ) i will set my face against him that eateth blood . nor is this manner of speaking to be found in any third precept : which maimonides well observes ( in more nebochim part . c. . pag. . ) because the eating of blood gave occasion to the worship of devils , and he fetcheth the reason of the interdict from idolaters who thought blood to be the meat of daemons . hence also it is commanded ( levit. . . ) that the blood of victims be sprinkled upon the altar ; and moreover that it be covered with dust , or sprinkled upon the ground as water . some of the zabii used to eat the blood ; some others , who reckoned this to inhumanity , at the killing of a beast reserv'd the blood , and put it into a vessel or trench , and then sitting down in a circle about it , eat up the flesh , and pleas'd themselves with an opinion , that their daemons fed upon the blood , and that this manner of sitting at the same table with their gods , would endear them to a nearer tie of conversation and familiarity ; and promising to themselves also , that these spirits would insinuate themselves in dreams , and render them capable of prophesy and predicting things to come . now in reference to these absurd and idolatrous ways of the amorites it was , that god expresly forbad his people to eat blood , for so some of the zabians did ; and to prevent their imitation of others who reserved it in a vessel , he commanded that the blood should be spilt upon the ground like water . and with the same respect to the zabian rites it seems to be , that it was also forbidden ( exod. . . and deut. . . ) to any man of israel , to seeth a kid or lamb in his mothers milk , as our many-tongued mr. gregory ( in posthum . ) hath learnedly asserted . the law in another place ( viz. deut. . . ) saith , ye shall not eat [ morticinum ullum ] of any thing that dieth of it self . thou shalt give it unto the stranger that is within thy gates , that he may eat it : or thou mayst sell it unto an alien . whence some collect , that the eating of blood was not forbidden to either proselytes of the house , or the sons of noah ; but only of flesh torn from an animal alive ; as the stones of a lamb cut out . maimonides ( more neboch . part . cap. . pag. . ) brings these reasons of the interdict : both because that is a sign of cruelty , and because the kings of the gentiles in that age were wont so to do , upon the account of idolatry ; namely they cut some member from a living creature , and eat it presently . nor is this so strange a thing , since clem. alexandrinus ( in protreptico , p. . ) commemorates the same execrable cruelty and bestial carnage to have been practised in bacchanals : bacchi orgiis celebrant dionysium maenolem , crudarum carnium esu sacram insaniam agentes , & caesarum carnium divulsionem peragunt , coronati serpentibus . nay more inhumanity yet hath been solemnly practised in the furious devotion of the adorers of the same drunken diety . prophyry ( de abstinentia l. . sect . . ) saith ; in chio sacrificabant baccho [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] crudis gaudenti , hominem membratim discerpentes . idem in tenedo obtinuit . well therefore do they speak who call idolatry madness in the last degree . jobus ludolfus ( in historia aethiopica lib. . cap. . num . . ) saith of the habessins , a sanguine verò & suffocatis abstinent , non vigore legis mosaicae , sed statuti apostolici in ecclesia orientali semper , in occidentali verò per mutla secula observati , & in conciliis nonnullis repetiti : nosque reprehendunt , quòd id in desuetudinem passi fuerimus venire . to these seven natural precepts , given ( as hath been said ) first to mankind in general , and after revived in mara ( according to the doctrine of the talmudists ) in the recension and explication of which according to the sense of the most learned interpreters of the hebrew antiquities , i have hitherto exercised my unequal pen ; some have subjoined another , of honouring parents . but of this , tho' equally natural with the former , and among moral precepts principal , i defer to speak , until the thred of the method i have prescrib'd to my self in this disquisition , shall have brought me to the first precept in the second table of the decalogue : both because some of the masters do not reckon it in the number of the primitive and genuine precepts of the sons of noah , but affirm that it was not given until the israelites were encamped in marah ; and because i would prevent repetition of the same things in divers places . nor doth any thing more , concerning the seven precepts precedent , occur to my mind at this time , that seems of moment enough to excuse me , if by insisting thereupon i should longer defer to put a period to this first part of my present province . ¶ the end of the first part. the concordance of natural and positive divine laws . part ii. containing a short explication of the laws of the decalogue , and reduction of evangelick precepts to them . chap. i. the preface to the decalogue explicated . from primitive laws meerly traditional , or such as were delivered down from generation to generation , not in writing , but only by voice or word of mouth , and seem to have constituted the most ancient right of mankind ; we come now to the most ancient of written laws , such as were committed to writing , and consecrated to the memory and observation of posterity . of this sort , the mosaic laws certainly are , as the best , so also the first of all known in the world. the grecians indeed , ambitious of the honour of being reputed founders of government , by making good laws for the regulation of humane societies ; among many other benefits , wherewith they boast themselves to have obliged other nations , put legislation in the head of the account . lycurgus , draco , solon , and other ancient sages , are great names they glory in . but their glory is altogether vain . for all the pretensions and brags of that arrogant nation in this kind , have been long since refuted and silenced by the jew flavius iosephus , in his apology against apion , full of admirable learning . there he shews , that the greek legislators , compar'd to moses , are but of yesterday : for at what time their father homer liv'd , they knew not the name of laws , nor is it extant in all his poems ; only the people had in their mouth certain common sayings and sentences , whereby they were govern'd ; to supply the defects whereof , the unwritten edicts of princes were upon occasion added . and he had reason . for the truth is , moses , senior to homer by many ages , was the first writer and publisher of laws , teaching the people what was right or wrong , just or unjust , and by what decrees the common-wealth was to be established , which the most high god had commanded to settle in palestine . before the time of this moses , no written laws were known in the world. for although mankind liv'd not altogether without laws before , yet were not those laws consecrated and kept in any publick records or monuments . of this sort were the afore-recited seven precepts given to the sons of noah , concerning certain rules of righteousness necessary to humane life . wherefore they were of so large extent , that whosoever knew them not , those the israelites were commanded to destroy by war , and deprive them of all communion with mankind : and justly ; for they that had receiv'd no law , seem'd worse than beasts ; and ( as aristotle hath divinely spoken ) injustice strengthened with arms and power , is most cruel and intolerable it must then be acknowledg'd , that of all legislators moses was the most ancient : nor can it be with truth denied , that he was also the wisest . for he ordain'd such a kind of government , which cannot be so significantly stil'd , either monarchy , or oligarchy , or democracy , as theocracy ; that is , a common-wealth whose ruler and president is god alone : openly professing , that all affairs were managed by divine judgment and authority . and of this he gave a full demonstration , in as much as although he saw all matters depending upon him , and had all the people at his devotion ; yet upon so fair an invitation he sought no power , no wealth , no honour for himself . a thing whereby he shew'd himself more than man. then he ordered that the magistrates should not be lords and masters , but keepers of the laws , and ministers . an excellent constitution this . for seeing that even the best men are sometimes transported by passion , the laws alone are they that speak with all persons in one and the same impartial voice : which may well be conceiv'd to be the sense of that fine saying of aristotle , the law is a mind without affection . to these two undeniable arguments of admirable wisdom in moses , may be added a third no less considerable , viz. the eternal stability of his laws : whereto to add , wherefrom to take ought away , was a most high offence . so that , neither old laws were abolish'd , nor new brought in ; but the observation of the first was with rigor exacted of all , even in the declination of that common-wealth . which was not so in other common-wealths , most of which have been ruined by law-making . the reason of this diversity cannot be abstruse to him that considers , that the laws of other nations were the inventions of humane wit , and enforced only by penalties , that by time , or remissness of rulers , lose their terror : but those of the iews , being the decrees of the eternal god , not enervated by continuance of time , or softness of judges , remain still the same ; mens minds being still kept in awe by religion , as i have in the former part of this discourse intimated . now if in these three things ( to which i might here subjoin others , if i thought it necessary ) the excellent wisdom and prudence of moses be not clearly visible ; i know not what is so . of these mosaic laws , upon which by divine wisdom both the polity and the religion of the holy nation are so establish'd , as to be , not only connex'd , but made one and the same thing ; some are moral , others ceremonial . the moral ( which only belong to my present province ) are comprehended in that sacred systeme call'd the decalogue , or ten commandments , in which the whole duty of man , as well towards god as towards men , is prescrib'd . these ten precepts therefore i intend ( the omnipotent author of them assisting me ) seriously and according to the best of my weak understanding , to consider , one by one , in the same order in which they are delivered in the twentieth chapter of exodus . and that neither want of skill in the hebrew language , and in the idiotisms or proper modes of speaking used by esdras ( or whoever else was ) the writer of the pentateuch ; nor the slenderness of my judgment , may lead me into errors , in the interpretation of the sacred text : i am resolved to resign up my self entirely to the conduct and manuduction of the most celebrated interpreters of the holy scripture , and among them principally of the illustrious hugo grotius ( a man no less admirable for the singular felicity of his judgment in difficult questions , than for the immensity of his erudition ) in his explication of the decalogue , as it is extant in the greek version of the seventy seniors ; choosing rather to tread in his very footsteps , than to deviate from the right way , in an argument of so great moment . not that i think it necessary to recite whatsoever he hath congested of this subject in that part of his theological writings , wherein are deliver'd many curious criticisms concerning the various significations and uses of as well greek as hebrew words and phrases , that belong chiefly to the cognizance of philologers : but that i design from thence to select only such things that seem requisite to my right understanding of the sense of all and singular the precepts , that i am now about to consider . in pursuance therefore of this design i begin from . the preface to the decalogue . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the lord spake . here by the lord , is meant the god of gods. and the reason why the greek interpreters chose rather to use the word [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] lord , than [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] god , seems to be this ; that writing to the greeks amongst whom , are to be number'd the egyptian kings of the macedonian blood , by the hebrews call'd kings of graecia ; and that among the graecians also they who were reputed wiser than the rest , as the platonicks , of which order were the ptolomies kings , used to give the appellation [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of god also to those whom they call [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] daemons , and sometimes , in imitation of the hebrews , [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] angels : they thought themselves religiously concern'd openly to testifie , that they spake of that god only , who by supreme right ruled and commanded all those that they honor'd by the name of gods : as among mortal kings , the king of the persians was call'd [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the king of kings ; and even at this day the king of the habessins in ethiopia writes himself [ negûsa nagast zaitjopja ] king of the kings of ethiopia , with respect to some petty kings subject to him , or his vice-roys , who also are honoured with the title of negus , king ; as the most learned iobus ludolfus observes ( in hist. aethiop . l. . c. . printed at francfurt this present year . ) but although the lord , that is , the highest god , be here said to speak these words that follow ; yet ought we to hold for certain , that he spake them not by himself , or immediately , but by an angel sent as an embassador , acting in the name of the most high god : which ought to be understood also of other the like visions , that have hapned to holy men in old times . for it was an angel that spake to moses and the people in sinah ; if we believe the writer of the acts of the apostles ( chap. . v. . ) and so thought the grave iosephus also , when ( antiq. l. . ) he said , cum nos dogmatum potissima , & sanctissimam legum partem per angelos à deo acceperimus . they err greatly , who here by angel understand the second substance of god , or second person in the trinity . for god spake indeed in various and manifold manners to the fathers of old ; but in the last times he began to speak to us by his son , ( hebr. . . ) the law was given by angels by the ministry of [ internuncii ] an embassador or mediator ( namely of moses ) that it might be of force , until the promised seed should come ( galat. . . ) and the writer to the hebrews prefers the gospel to the law from this , that the gospel was given by our lord iesus himself , the law only by angels . ( heb. . . ) in which places angels are named in the plural number , tho' st. stephen saith angel in the singular ; because such is the manner of visions of that kind , that there is one angel sustaining the person and name of god , and others present with him as apparitors , or ministers . as in gen. . & luke . . conferr'd with thess. . . and with matth. . . . . as therefore the angel that pronounced the law , saith , i iehovah , so also do other angels , that have been likewise sent from god , as embassadors , to transact affairs of great importance , speak in the first person , just as the crier of a court pronounces the words of the judge ; as st. austin ( l. . de trinitate c. . ) makes the comparison . so moses ( exod. . . ) saith , that the god iehovah spake to him in the bush : and he that then spake to moses , had newly said , i who am , which is an explication of the word iehovah , i. e. existens , or being ; for being without beginning , without end , and without dependence , is proper to god alone . but st. stephen ( acts . . ) saith , that an angel of the lord appear'd to moses in a flame of fire in a bush : and that from the authority of moses himself . ( exod. . . ) of which st. athanasius ( orat. . ) saith ; et vocavit dominus mosem exrubo , dicens : ego sum deus patris tui : deus abraham , deus isaac , & deus jacob : at angelus ille non erat deus abraham , sed in angelo loquebatur deus ; & qui conspiciebatur , erat angelus , &c. of the same judgment was the author of the responses to the orthodox christians , when he said ; angelorum , qui dei loco visi aut locuti sunt hominibus , dei vocabulo nominati sunt , ut ille qui jacobo , quique mosi est locutus . etiam homines dii vocantur . vtrisque ob officium ipsis injunctum datum est , & dei vicem & nomen obtinere . expleto autem officio , desinunt vocari dii , qui tantùm operae alicujus causâ id nomen acceperunt . we must acknowledge then , that the words recited in this place of exodus , were pronounced by an angel in the name of god : but we are not obliged to believe the same of those that are in deut. . for they were the words of moses by memory rehearsing the former , and indeed with such liberty , that he transposeth some words , changeth some for others of the same signification , omitteth others , and addeth new for interpretation sake . for deuteronomy , or , ( as philo speaks ) epinomis , is nothing else but the law and history summarily repeated , in favour of those who were not present at the promulgation of the law , and at the transactions of that time . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; all these sermons , saying . these very words ; that no man of posterity might think ; that ought had been added or taken away . in deuteronomy . are not found these words so express : and therefore it sufficeth , that there the sense of the reciter is signified , as we just now siad . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; i am the lord thy god who hath brought thee out of the land of egypt , out of the house of servitude . by the hebrew word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 which the septuagint have interpreted 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , empire is signified . the same word is attributed sometimes also to angels , as in psalm . v. . and sometimes to eminent magistrates , as in exod. . . & . . so that in psalm . . & . . it is a great doubt among the most learned of the hebrew doctors , whether angels or magistrates are to be understood . but whensoever the plural is conjoin'd with the singular [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] by apposition , but [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] defective , no doubt is to be made , but that he alone is to be understood , who with highest and most absolute empire presides over all both angels and magistrates . but to that word , the possessive case is wont to be added , whereby it is signified , that to this most high god , besides the soveraign right he hath of most absolute dominion over all angels and men , there belongs also a certain peculiar right of dominion over some particular men or nation , by vertue of not common benefits conferr'd upon them . for such is the nature of benefits , that it always gives to him who hath conferr'd a benefit , somewhat of new right over him that hath receiv'd it . and this is the cause , why here no mention is made of god's creation of mankind in the beginning , but of those things that properly belonged to the posterity of iacob , nor of all those neither , but only of the most recent , the memory whereof sticks more firmly and efficaciously in the minds of men. compare with this , the cause of keeping the law , which fathers are commanded to deliver down to their children , in deut. . . and following verses . now what is said in this place , is not law , but a preface to the law , seneca indeed approves not of a law with a prologue , because a law is made , not to persuade , but to command . but zaleucus , charondas , plato , philo , and some other philosophers were of another opinion . certainly the middle way is the best ; let the prologue be brief and grave , such as carries the face of authority , not of disputation . the number ten is to almost all nations the end of numbering ; for the numbers that follow , are distinguished by compound names , either by the sound , as vndecim , duodecim , eleven , twelve ; or by signification , as an hundred , a thousand , &c. and certainly the most ancient way of numeration was by the fingers , of which man hath ten. for which reason , also in these precepts , which were above all other things to be imprinted upon the receivers memory , god was pleas'd to choose this number , wherein that all diversities of numbers , all analogies , all geometrical figures relating to numbers , are found ; philo largely shews in his enarration of the ten precepts . and martianus capella , where he saith ; decas verò ultra omnes habenda , quae omnes numeros diversae virtutis ac perfectionis intra se habet . nor was it from any other reason , that the pythagoreans , and after them the peripateticks referr'd all kinds of things into ten classes , vulgarly call'd categories : or that not only in the law , but also before it , tenths were devoted to god ; as may be collected from the history of camillus written by livy and plutarch , and from herodotus , who speaks of that custom as most ancient . the place wherein the law was given , also exacts our notice . it was given in a wilderness barren and desolate ; with design , that the people remote from the contagion of cities , and purged by hardship and sore afflictions , and by miracles taught not to depend upon things created , might be well prepared for that common-wealth which god was about to found and establish . nor ought we without a remark , to pass by the particle [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] thy god. which not only here in the preface , but in the precepts ensuing , is used ; intimating , that the law commanding and forbidding speaks to every individual man in the number of unity ; to the end , that it may declare , that here the condition of the prince , and of the lowest hebrew of the vulgar , is one and the same , none , high or low , being exempted from the obligation thereof . chap. ii. the first precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . thou shalt not have other gods beside me . in the words , other gods beside me , seems to be a pleonasm , or redundance of speech . for it had been sufficient even to men of common sense , to have said , other gods. but the like speech occurs also in corinth . . . and corinth . . . and the meaning is , that other gods are neither to be substituted in the place of the true god , nor to be assumed to him , which many did , as in kings . . here by gods are to be understood , not only angels and iudges or other magistrates of eminent dignity , who are ( as we have already hinted in the preface ) sometimes in the scripture honour'd with the title of gods , while they execute their office ; but also all those whom the gentiles , tho' without just cause , call'd by that name ; [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] who are call'd gods ( corinth . . . ) so some are call'd prophets , who boast and magnifie themselves for such , ( ier. . . ) let us therefore consider , first the false gods of the ancient gentiles , and then those that are not without cause call'd gods. that the first things which men worshiped as gods , were the celestial fires or luminaries ; is the opinion of the most learned and judicious of the hebrew masters , abenesdras , moses maimonides , and others . and this opinion is highly favor'd , both by the tradition of abraham , who is said to have abandoned his native countrey , and travell'd into a strange land , meerly out of detestation of this kind of idolatry ; and from the history of iob taken from times most ancient ( chap. . v. . . . ) whereto may be added that of deut. ( chap. . v. . and chap. . v. . ) now that the sun , moon , and other lights of heaven are false gods , is most evident , not only from hence , that no great goods or benefits come from them to mankind ; but also from this , that they neither understand mens adoration and prayers , nor have the liberty of doing good more to one man than to another : which two things are conjunctim requir'd to fill up the true signification of the name god , ( heb. . . ) no sooner had men made to themselves gods of the stars , but they began to make also stars of men , and to worship them with divine honours . kings and queens ( that there might be deities forsooth of both sexes ) were after their decease , what by the cunning and pride of their posterity , what by the adulation of the learned of those darker times , deified and adored ; and that too under the names of eminent stars . and from this antique custom st. chrysostom ( ad . cap. secundae ad corinth . ) derives the worship of idols : sic enim idolorum cultus primùm obtinuerunt , cum homines supra meritum in admirationem venirent . that divine honors were by the syrians attributed to azael and aderus their kings , iosephus relates : and athenaeus affirms , that this custom came first out of egypt . but the most ancient memoir of the thing is found in sanchuniathon , who hath recorded for truth , that [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] kronos king of the phenicians was by them consecrated into that star , which the greeks , taught by the phenicians , call'd from his name 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and the latines saturnus . and he is the same to whom , by way of excellency named 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. the king , the phenicians used to sacrifice their children : a most inhuman and execrable custom , that from them descended down to the tyrians ( a colony of theirs ) and from them to the carthaginians and other peoples of africa . thus was astarte also consecrated into the planet venus ; and not long after among the egyptians , osiris was stellified into the sun , isis into the moon . thus was hammon translated into aries , the ram ; derceto into piscis , the fish. but of the moors , a people of mauritania , st. cyprian saith ; manifestè reges colunt , nec ullo velamento hoc nomen obtexunt . from the deification of stars , and stellification of men , in process of time they proceeded to yet a higher degree of madness , idolizing of brute animals . for , either because the asterisms or constellations of stars had been before , by the curious observers of them , formed into the figures of divers animals , from some similitude they fancied in one or more stars ; or because some animals were believ'd to have , i know not what , secret natural cognation with certain asterism , and to receive a more vigorous influence and virtue from them ; or perhaps for both these causes : therefore were those animals supposed to have somewhat of divine in their natures , and accordingly number'd among deities by the egyptians , who adored them as such . hence an ox was call'd apis , with relation to luna , or lunus rather ( for a great part of the east call'd that planet by a masculine name ; ) the phoenix ( tho' probably there never was any such bird in rerum natura ) was worship'd as a favourite of the sun ; as also were the lizard , lyon , dragon , falcon , for the same reason ; the bird ibis , out of respect to mercury ; the dog , in respect to sirius , the dog-star : and in like manner other animals also , betwixt which and the asterisms ( to which notwithstanding the chaldeans gave figures different from those the persians imagined , and the indians different from those that either of those two nations had fancied ) they conceiv'd any resemblance of shape , or cognation of nature to be . they proceeded yet farther . without any respect at all to celestial bodies , they honour'd as gods all such living creatures that were highly useful and profitable unto men ; such as are reckon'd up by diodorus siculus cited by eusebius ( in praeparat . evang. ) by pliny ( l. . c. . ) philo ( ad praecept . secun . ) and porphyry ( de abstinentia l. . ) now of all these brutal deities of the egyptians , we need say no more than what we said just now of the host of heaven , to prove them to be false gods ; viz. that they neither understand the prayers , nor have power to do good to one man more than to another of their stupid adorers , as wanting the faculties of reason and election . the same cannot be said of angels , who are able , both to hear and understand prayers address'd to them , and from a certain liberty of mind to confer benefits upon those whom they are commanded to favour and assist . he therefore that honours them with due respect and reverence , also he that hopes to obtain some eminent benefit by their help and assistance ; doth not sin against this law : but he doth , who attributes to them the things that are proper to the most high god. for the word god in this precept , is to be understood in sensu summitatis , i. e. as signifying the god of gods. examples will illustrate the thing . they sinned not who as often as angels appeared to them , shewed great veneration of them by falling down upon their faces , as in ioshuah ( c. . v. . ) since as much of honour as that comes to , was given also to prophets , without sin ; as to him that was thought to be samuel ( sam. . . ) to eliah ( kings . . ) to daniel ( . . ) who forbids offerings and sacrifices , doth not forbid a sign of simple reverence . nor did the angel in the revelation refuse that honour , because there was ought of unlawful in it , but because he would shew that the apostle was equal to him , both being ministers of christ , now head of the angels , ( see coloss. . . . ) and that an apostolick legation designed for mens salvation , was in no part inferior to an angelick : and equals are not wont to usurp such signs of submission one of the other . nor is this explication of that place new , but delivered down to us by st. ambrose and gregory the great . nor do i think that man would sin , who should beseech an angel appearing to him , to recommend him before god ; to the proof of which point maimonides brings what is in iob ( . . ) with whom philo consents , often calling angels [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] mediators . but in both exhibiting signs of reverence to angels , and in imploring their commendation , it highly concerns us to see , that he that appears to us under the form or shape of an angel , be not an evil daemon come to delude and seduce us ; a cheat not seldom practised by the prince of impostors satan , as st. paul observes ( corinth . . . ) and porphyry ( de abstinentia l. . ) in these words ; aliorum deorum velut vultum induti , nostra imprudentia fruuntur ; and iamblicus ( de myster . aegypt . l. . c. , & l. . c. . ) nor is it difficult to discern betwixt good and evil angels appearing to us . for those that endeavour to seduce men from the worship of the true god , or pretend themselves to be equal to him ; are most certainly emissaries [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of the devil , and to be resisted . true it is nevertheless , that there are many signs of honour that cannot be exhibited even to good angels , without manifest violation of this holy precept . first if those signs of singular veneration be exhibited to them , which the consent of nations hath made proper to divine worship , as sacrifices , oblations , incense , expresly declined by the angel that appear'd to manoah , ( iudg. . . ) and mentioned in daniel ( . . ) secondly if we solemnly vow or swear by them , or beg of them those things , which by god's command ought to be petitioned for from god alone , or now under the new covenant from god and christ , such are remission of sins , the holy spirit , eternal life . for this is , as philo rightly observes , aequalia dare inaequalibus , qui non est inferiorum honos , sed superioris depressio ; nor is it less than crimen laesae majestatis summae , high treason against the divine majesty , to give his honour to his ministers . to petition superiors , principally kings and princes , who are presidents of human peace , and conservators of every private mans right and propriety , for such things as are in their power to grant ; is not against this law. nor are we by the same forbidden to honour them by kneeling or prostrating our bodies in their presence , where custom of the place or nation requires those signs of respect and reverence ; for this is civil , not divine honour . nathan prostrated himself before david , only as he was king ( kings . . ) and the writer of illustrious lives saith ( in conon . ) necesse est , si in conspectum veneris , venerari te regem , quod 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 illi vocant . the greeks instead of that word often put 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , procumbere , to lye down flat upon the ground , in token of submission and veneration . livy speaking of certain embassadors of the carthaginians , saith ; more adorantium ( accepto credo ritu ex ea regione ex qua oriundi erant ) procubuerunt . he means from the phenicians , neighbours of the hebrews , whose custom of yenerating their kings in this manner euripides ( in phoeniss . ) thus expresses ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . supplex te , rex , venerans genibus patrio advolvor de more tuis . but if this prostration of the body be in any nation used only in divine worship ; then is the case quite alter'd , and to use it in honour of the king himself , will be unlawful . for this very reason the grecians , who were not accustomed to prostrate themselves unless in sacris , refus'd to venerate the king of the persians in that manner : and some macedonians , tho' eminent in the army and court of alexander the great , could not either by flattery or terror be brought to prophane the religious gesture of procumbency , by using it before him even when he affected to be thought a god. particularly callisthenes and polypercon : the former of whom , in the close of his free oration to alexander , fear'd not to say ; non pudet patriae , nec desidero , ad quem modum rex mihi colendus sit discere , the other openly derided one of the persians that , from veneration of the same mighty king , lay with their faces upon the ground , jeeringly advising him , ut vehementius caput quateret ad terram , as curtius ( lib. . cap. . ) relates . there were times when the christians thought it not alien from their religion , to humble themselves by such prostration before the statues and images of emperors . but after iulian had commanded , that images of false gods should be added to his own images , the more prudent of the christians held themselves obliged in conscience to suffer the worst of torments , rather than to fall down before them ; as gregorius nazianzenus hath recorded . and hither may we refer that of tertullian to scapula ; colimus ergo imperatorem sic , quomodo & nobis licet , & ipsi expedit , ut hominem à deo secundum , & quicquid est à deo consecutum , & solo deo minorem . hitherto we have enquir'd , what gods are falsely and without just cause so called ; and who are sometimes not without cause named gods ; and how far these of the latter sort may , without offence of the most high god , be honour'd . it remains only , that we enquire , what is the grand scope or principal design of this first precept . the most learned iew , philo , and the christians following him , rightly call this precept [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of the empire of one , or also [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the destruction of a multitude of gods. for no doubt is to be made , but that the chief purpose of this law is to extirpate polytheism ; and that too , as maimonides wisely observes , not for god's sake ( for what benefit can he receive from humane worship ? ) but for man's , whose felicity consisteth only in this ; that he be advanced from things sensible to that insensible god , from things subject to decay and destruction , or such as had a beginning , to that eternal ens. nor is any thing so useful , as the belief of one god , to conjoin and bind men together in peace and mutual amity . whence that memorable sentence of the greek author of the book ( de monarchia l. . ) amatorium vehementissimum , & vinculum insolubile benevolentiae atque amoris , cultus unius dei. whereto he adds , for confirmation , or that he might inculcate the same as a maxime of perpetual truth , and universal too ; causa concordiae & summa & maxima , de uno deo persuasio , a quo velut fonte procedit amicitia firma & insolubilis hominibus inter se. to this great verity tacitus seems to have had respect , when speaking of the religion of the iews , he saith ; honor sacerdotii firmamentum potentiae assumitur . for if the honour of the priesthood be the grand sanction of the power and authority of the civil magistrate in all common-wealths ( as is confest by that common axiom , sublato sacerdotio tollitur simul & lex ) and religion be the basis upon which the honour of the priesthood stands ( which is by all men acknowledg'd ) and the persuasion of one god be the firmest fundament of religion ( which cannot be denied ) then it will of necessity follow , that the perswasion of one god , is the firmament of empire , because the strongest ligament whereby the minds of men are combin'd and disposed to live , both in obedience to governors , and in peace and mutual amity among themselves . admirable therefore is the goodness shewn by god to the israelites , in this : that having selected them before all other nations to be his peculiar people , and being now about to constitute a new form of government or republick , wherein himself was to preside : he gave them this first precept , as the fundamental law upon which the stability of their empire , and their felicity was to depend ; and to which the light of nature or right reason would oblige them to assent . for the agnition of one , eternal , infinite , omnipotent god , is to a considering man , without much difficulty of thoughts , inferrible from any one of these subsequent reasonings . . he that from any natural effect whatever , which he hath seen , shall reason to the next cause thereof , and thence proceed to the next cause of that cause , and then immerge himself profoundly into the order of causes ; will at length find ( with the philosophers of clearest understanding ) that there is one first mover , i. e. one eternal cause of all things , which all men call god : and this without all cogitation of his own fortune , the solicitude whereof both begets fear of evil to come , and averts the mind from the inquisition of natural causes , and at the same time gives occasion of imagining many gods. . god is necessarily , or by himself ; and whatsoever is so , is consider'd , not as it is in genere , but in actu ; and in actu things are single . now if you suppose more than one god , you shall find in singulis nothing , wherefore they should be necessarily or by themselves ; nothing wherefore two should be believ'd to be rather than three , or ten rather than five . add , that the multiplication of singular things of the same kind is from the fecundity of causes , according to which more or fewer things are bred out of them : but of god there is neither original , nor any cause . and then again in divers singulars , there are certain singular proprieties , by which they are distinguish'd among themselves ; which to suppose in god , who by his nature necessarily is , is not necessary . . nor can you any where find signs of more than one god. for this whole university makes one world ; in the world is but one sun ; in man also but one mind governs . . if there were two or more gods ; acting and willing freely ; they might will contrary things at the same time , and consequently one might hinder the other from doing what he would ; but to imagine it possible for god to be hinder'd from doing what he wills , is to imagine him not to be god. evident therefore and necessary it is , that there is but one god. evident it is also , that the israelites were under a double obligation to obey this precept : one from god's express command ; the other , from the light of nature , which alone is sufficient to teach men , both that there is but one god properly so call'd , and that to him alone all divine worship is due . chap. iii. the second precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. thou shalt not make to thy self any graven image , &c. in greek writers the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is often used to signify [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] an apparition or ostent : but in the sacred books we no where find it used in that signification , but always of the same with [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] graven , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , an image , or effigies ; and therefore st. ierom translates it sometimes idolum , sometimes sculptile , then imago , and in other places simulacrum . so the calf made in horeb is by st. luke ( act. . . ) call'd an idol , and they that worship'd it are by st. paul ( corinth . . . ) call'd [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] idolaters . and the greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 answers exactly to the hebrew 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whereby is signifi'd worship alien from the law : not that an idol signifies any thing of evil per se , as some think ; but because , after the law , there was no more evident sign of distinction betwixt the pious and the superstitious , than this , that all these had graven images , those had none . and therefore tho' the greek version renders not word for word , yet the sense is plainly enough express'd . nor did the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] worshippers of many gods only make and set up images to them , but thought also that by magical rites some certain ethereal spirit was brought down into those images ; as may be seen , both in the dialogue of trismegistus ( whoever he was that impos'd that mighty name upon himself ) with asclepius , and in maimonides in many places of his book intituled ductor dubitantium , as also in abenesdras upon this precept . the same is noted by tertullian ( l. de idololatria ) in these words , rapere ad se daemonia & omnem spiritum immundum per consecrationis obligamentum ; and ( in l. de spectaculis ) he saith , that demons operate in images : and minutius felix , isti impuri spiritus sub statuis & imaginibus consecratis delitescunt . that such were the images which in iacob's history are named teraphim , is the opinion of abenesdras , maimonides , and kimchi : tho' the word it self be of good and bad signification indifferently , and is sometimes ( as in iudg. . . and hosea . . ) taken for cherubins . such also was the gamaheu or little image that nero had , or at least was willing men should believe he had , by the suggestions whereof , he pretended to be premonished of things to come , as suetonius relates . that many images , telesmatically made forsooth , and erected have been vocal , yea , and oraculous too ; many grave writers have made no scruple to affirm ; and maimonides ( parte . cap. . ductor dubitant . ) tells us , that he had read two books of speaking images . these authors perhaps had from others heard of such statues , and believ'd what they had heard to be true : but to me ( i freely profess ) it seems more probable , that either they gave credit too easily to fabulous relations , or that the relators themselves had been imposed upon by frauds and impostures of heathen priests speaking in , and pronouncing enigmatick oracles from the hollow of statues , to delude the credulous , and at the same time propagate the honour of the false gods represented by those idols ; than that evil demons should as it were animate a statue , and cause it to express articulate sounds , without vocal organs . and as for memnon's statue or colossus made of black marble , set up in that magnificent temple of serapis in thebes , and for the musick it made upon the striking of the beams of the sun upon it , so much celebrated by ancient writers as well latine as greek ; certainly it was meerly a piece of art , a kind of pneumatic machine contrived by the theban priests , men of not vulgar skill in astronomy and all other philosophical sciences . athanasius kircher ( i remember ) in his oedipus aegyptiacus ( tom. . ) according to his usual credulity , conceives it was a telesme , or made by talismanic art ; and that the devil was conjur'd within the hollow of it , to perform that effect , because it continued musical for so long a time , namely to the days of apollonius tyaneus , which from the first erection of it was about eleven hundred years . but yet he shews , that such a musical statue may be made by mathematical and natural contrivance upon the ground of rarefaction ; saying , magnam enim vim in natura rerum , rarefactionem obtinere , nemo ignorat ; and subnecting various other pneumatical devices among the aegyptians in their temples . but whether it were the devil or the priest that spake in those consecrated statues ; or whether the vulgar , in all ages easie to be gull'd by men of more learning and cunning , were only deluded into a belief that they spake : certain it is however , that the opinion of some spirit or other included within them , so far advanced their reputation , that they were now no longer lookt upon as representations of gods , but as real gods themselves , and accordingly worshiped and consulted about future events . from this opinion it was , that laban ( in genesis . . ) expostulating with iacob about the teraphim or images that rachel had secretly taken from him , saith , wherefore hast thou stolen my gods ? that these teraphim were fram'd by astrologers , for divination sake , and that they might predict things to come ; is the judgment of rabbi kimchi : and that they were also made of human form , so as to be the more capable of coelestial influence , is observ'd to us by rabbi abraham ben-ezra , the greatest theologue and astrologue of the iews . who adds , that rachel stole the images from her father laban for this reason alone , lest from the inspection of them he might learn what way iacob had taken in his flight , and so pursue him . and st. austin ( quaestion . in genes . ) grants that laban consulted these idols for divination ; saying , quod laban dicit , quare furatus es deos meos , hinc est illud fortasse quòd & augurari se dixerat . capite enim praecedenti , ad jacobum dixit , auguratus sum , ( not as our translation , i have learned by experience ) quod benedixerit mihi deus propter te . so mr. selden ( de diis syris syntagm . . c. . ) assures us , the ancients interpret nichasti ; and the hebrews understand that place ( ver . . ) of fore-knowing or conjecturing . but whether or no these teraphim were worshiped as gods , though they were call'd so , is an old controversie among the masters , as appears from r. simeon ben-joachi ( in libro zohar fol. . ) as for the dismal manner how these teraphim were made , mr. selden ( from r. elias in thisbi ) describes it thus : they killed a first-born son , twisted or wrung off his head from his body , then embalm'd it with salt and aromatick powders , and wrote upon a thin plate of gold the name of an unclean spirit ; which plate being put under the embalm'd head , they placed it in a niche of the wall , burning candles , and adoring before it . and with such teraphim as these laban used to divine . if this be a true description , i wonder why the author of it , and onkelos too , in this place of genesis translate teraphim by tzilmenaia ; when tzilmenaia signifie figures , effigies or images ; and a dead mans head is neither of these . of micha also we read ( iudg. . . ) that he had a temple of gods , and made an ephod and teraphim , and consecrated one of his sons , ( that is , filled his hand with sacrifices ; ) which ancient rite used in the initiation of priests , we find mention'd in exod. ( . . ) and levit. ( . . ) and he became his priest. upon which text mr. selden , according to his wonted sagacity , well observes , that this micah did ill to mix the worship of the true god , with that of idols and demons ; for doubtless he consecrated the ephod and levite to the true god , but the teraphim , the molten , and the graven image to demons : from which the danites soon after obtain'd an oracle , as if it had been from god himself ; as appears in the chapter following . nor did the idolaters give credit to the ephod , which they referr'd to god ; or to the teraphim of demons , singly or apart : and therefore they foolishly and impiously thought , that both together were to be consulted , both to be worshiped , and conciliated by the same divine worship . it seems by the history , that the molten image , and the graven image of micah were the gods to whom the teraphim were consecrated . but yet the teraphim also , in respect to their egregious use in divination , were held to be gods. hence arises somewhat of light to us for our clearer discerning of what is meant by that darksome place in hosea ( . . ) for the children of israel shall abide many days without a king , and without a prince , and without sacrifice , and without an image , and without an ephod , and teraphim . for the sacrifice and ephod are referr'd to divine worship of the true god ; the statue or image and teraphim , to idolatry : according to r. kimchi's interpretation , who ( in radice ) saith , absque sacrificio , respicit deum verum ; absque [ matzebah ] statua , cultum alienum sive numina gentium ; & absque epho , item deum verum ; & teraphim , cultum alienum . as to the matter whereof these [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] puppets or idolillo's were made ; the most antique of eastern nations , the zabii , or chaldeans ( out of whose books r. moses the aegyptian transcrib'd many remarkable memoirs ) made them of gold sometimes , sometimes of silver , according to the rate of their fortunes . these they dedicated to the moon , those to the sun : and they built temples or houses to receive them , as he , ( more nebochim . l. . c. . ) records ; et posuerunt in eis imagines & dixerunt quod splendor potentiorum stellarum diffundebatur super illas imagines , & loquebantur cum hominibus , & annunciabant eis utilia . which quadrates exactly with their doctrine who teach , that the teraphim were always made according to the precepts of astrology , and to certain positions of the stars , ( as those which the greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) and to the figures , imagined to be in heaven , that they might be , not only [ mechavi ] annunciantes , fortune-tellers , but also [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] averrunci dii , drivers away of evil. nor do the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 indeed , as to the astrological reason , differ from the teraphim , unless in this , that these were design'd to predict things to come , but those to drive away evils ; and the makers of the talismans were named 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . much nearer to the nature of the teraphim do those images come , that were believ'd both to give oracles , and to protect from evil : not only from their having been astrologically formed and erected , but [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 daemoniorum ] from the coming of demons into them : and we are told by michael psellus , that demons are said [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] to make their intrada's or entrances , when being invocated by their adorers or conjurers , they enter into statues or images consecrated to them . of this sort of images the most ancient memory is found mention'd by that hermes trismegistus in his dialogue with asclepius . such was that wooden seal by apuleius called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and by him under a secret name worshiped ; of which magical practice being accused , he wrote an elegant apology . the same is to be thought of that head of a statue , which gerebert arch-bishop first of rhemes , and after of ravenna , and at last pope , by the name of sylvester the second , taught by the saracens of spain , to the satiety of humane curiosity , made into an oracle for his own use ; as our william of malsbury ( de gestis regum angliae , lib. . cap. . ) relates . this head , saith william , would never speak , but when interrogated ; and then it fail'd not to speak truth , either affirmatively , or negatively . for instance , when gerebert asked , shall i be apostolick ? the head would answer , thou shalt . shall i dye before i have sung mass in jerusalem ? no. but by this answer , the pope ( as is well observ'd by selden , de diis syris . l. . c. . ) was deceived , as to the time of his death : for he understood it of the city ierusalem ; but the oracle meant a church so called in rome ; in which , immediately after his holiness had upon the sunday call'd statio ad ierusalem , celebrated mass , he ended his life miserably . that the like head was made of brass , and to the same purpose too , by our country-man roger bacon of oxford , a minorite ( a man of greater learning than the gloomy age wherein he lived , could well bear ) is confidently reported by the vulgar ; not without injury to his admirable skill in all parts of the mathematicks , which his works now extant shew to have been profound and pure , and of which the most renowned university of oxon hath , in their late history and antiquities , given an honourable testimony . nor have our annals any the least ground , upon which this scandalous fiction could be rais'd . of what matter the image of the great diana of the ephesians was made , is left to conjecture ; no less uncertain than the founder of her magnificent temple in that city : but that the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] silver shrines made there by demetrius a silver smith , and other crafts-men , not for , but of diana , and mentioned in acts . . were little chappels representing the form of the ephesian temple , with the image of diana enshrin'd ; hath been affirm'd by the great erasmus , and sufficiently proved by our most learned mr. gregory , ( in posthum . c. . ) and to this agree the heathen rites of those times . for ammianus marcellinus ( in iuliano , l. . numb . . ) relates , that asclepiades the philosopher was wont to carry about with him whithersoever he went , a little silver image of the coelestial goddess , or vrania : and dion ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 lib. . fol. . ) saith of the roman ensign , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that it was a little temple , and in that , the figure of an eagle set in gold. now that which moved demetrius and other workmen of the like occupation to stir up the beast of many heads to raise a tumult against st. paul , was not zeal for the honour of diana , as they cunningly pretended , but fear lest their trade should be ruin'd . for at this time there was a solemn confluence of all the lesser asians , to the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] holy games celebrated at ephesus , to the honour of other gods , but of diana in chief . and it must have cut off the stream of profit from the craftsmen , if the people had been convinced of the absurdity of their devotion by st. paul's doctrine , that these enshrin'd idolillos of diana so much bought up by bigots , were no gods , because made with hands . in the prophesie of amos ( . . ) is mention'd [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the tabernacle of moloch , which probably was an image of saturn in a shrine , like these of diana here describ'd . for that moloch was saturn , selden hath render'd indubitable : and that the aegyptians worshiped him under the name of rephan , is evident from the coptick table of the planets explicated by athan. kircher in prodrom . coptic . c. . pag. . but of what materials soever the idols of the ancient gentils were made , still the worshipers of them seem to have been possessed with an opinion , that there was [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] some numen or divine power latent in them . and this opinion had been so diffused through all the oriental nations , before the law ; that god thought it necessary to the peace and felicity of the hebrew commonwealth now to be established , by this precept to interdict all graven images of any animal whatsoever , such being thought , by reason of their hollowness and secret recesses , more capable of demons , than others . for we are to understand , that to the hebrews , as it was expresly forbidden to worship any such image , so was the meer making of any not permitted ; lest from the shape or form of the image , the israelites might perhaps take occasion to believe , as the heathens did , that such images were ( to use the phrase of the false trismegistus , in dialog . cum asclepio ) animatae sensu , & spiritu plenae ; or ( as iamblicus calls them ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , divino consortio simulacra plena . where that consortium or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is of angels or daemons , whom they conjur'd into the images , by certain magical rites and sacrifices . nay more ; god strictly commanded that all such statues and images should be destroy'd and utterly abolish'd , exod. . . numb . . . deut. . . hence it was , that when pilate had nayl'd up certain shields or bucklers in the holy temple , the iews were unquiet and mutinous , until he had caus'd them to be taken away ; because there were in them [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the countenances or faces of some of the caesars emboss'd or prominent , perhaps in messo relievo . hence also herod having set up certain trophies , was in danger of being outraged by the fury of the iews , until by exposing them uncover'd , he shew'd , that no images lay conceal'd under them . in like manner the golden eagle set up by the same herod over the gate of the temple , was thrown down , as repugnant to the holy law ; as iosephus ( antiq. l. . ) relates . nor was this law unknown to tacitus , who speaking of the iews , saith , nulla simulacra urbibus , nedum templis sunt . and he was in the right ; for even dion could tell his readers , that to have graven images or statues , not only in their temple but in any other place whatsoever , was to the jews unlawful . to endeavour to exempt himself from the obligation of this law , while the sanctity of it continued , was criminal to any man , from the prince to the meanest of the vulgar : god reserving to himself alone , the power of exception , as being the law-maker . he by his right commanded cherubins , winged images with human countenances , to be set up in the sanctum sanctorum of the temple in that very place , into which none but the high priest , nor he but once in the year , upon the day of solemn and general expiation , was permitted to enter : as well knowing , that there was nothing of divine in them ; and designing , that by them should be signified , either ( as philo thinks ) that the actions of god in rewarding good men , and in punishing the disobedient , are winged and swift ; or ( as maimonides and others conjecture ) that god uses the most ready and expedite ministry of angels to execute all his commands . of this his prerogative royal ▪ he again made use , when he gave order , that the brazen serpent should be erected in the wilderness for the healing of the people bitten by fiery serpents ; and therefore tertullian ( de idololatria ) saith , extraordinario praecepto serpentis similitudinem induxit . that the fiery serpents by which the mutinous israelites were bitten , were ex genere chersydrorum , a kind of water serpents , grown more venenous by heat and thirst , and so truly seraphim , i. e. ardentes , and exurentes ; and that they were not bred in the place call'd phunon , where the brazen serpent was erected , but brought thither vi quadam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by divine power , to punish the contumacious people ; hath been amply proved by the many-tongued bochartus , ( in hierozoici parte posteriori . l. . c. . ) to whom we owe all the knowledge we have acquired of the various kinds of animals mentioned in the holy bible . as for solomon's adding the images of oxen and lions , to the brazen laver ; either he did it by secret intimation or suggestion from god ; or ( as iosephus judges , and other learned iews ) it was his first step toward the idolatry to which after he arrived . when we said that graven images of animals were by this law forbidden , we comprehend also images of the caelestial luminaries , because they too have their motions ; not animal indeed , but regular and periodick . for , that not the coelestial orbs , but the stars and planets are moved in caelo liquido , in the aethereal spaces or firmament ; is the most ancient opinion of the hebrews , as the gemara teaches at the beginning of genesis , saying , orbes fixi , sed sidera mobilia . and they expressed in figure , either the form of some single planet , as of the sun , moon , saturn , ( call'd the star of your god remphan , or rephan , in act. . , ) lucifer , jupiter , &c. or some whole constellation made up of many stars , and by men fancied to resemble a man , or brute animal , or serpent , or other living creature . wherefore images of this kind also fall under the interdiction of this law. it appears nevertheless , that the images and figures here interdicted , are in the number of things in their own nature neither good nor evil , but indifferent , and consequently not unlawful ; and which are prohibited only for caution of some evil that may arise from the abuse of them . and that very many things interdicted in the mosaic law , are indeed by their own nature , or per se [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] indifferent ; but directly opposed by god to the institutes of the aegyptians , phoenicians , arabians , to the end that the hebrews might be kept the more remote from polytheism or the worship of many gods ; is prudently observ'd by maimonides . but besides this caution , there is another excellent use of this interdict of images , viz. to admonish men that god is most remote from our sight and other senses . the invisible god is not to be worshiped by images , symbols or representations . ye saw not , saith moses , any similitude in the day wherein the lord spake unto you in horeb out of the midst of the fire , lest perhaps being deceived ye might make to your selves any graven image . and seneca ( nat. quaest. . . ) could say of god ; effugit oculos , cogitatione visendus est . also antiphanes the philosopher ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. god is not seen by eyes , he is like to no man ; whence no man can know him by an effigies . and that this was the reason of this law , is intimated both by philo , when ( de-legatione ) he said ; eum qui inaspicuus est , in simulacro aut fictili opere ostendere , nefas : and by diodorus siculus , when he said of moses , imaginem statuit nullam , quòd non crederet deum homini esse similem : and by tacitus , iudaei mente solâ unumque numen intelligunt . prophanos qui deûm imagines mortalibus materiis in speciem hominum effingunt . for the same reason halicarnensis and plutarch affirm , that numa caus'd all images to be remov'd out of the roman roman temples ; quod non sanctum ratus , assimulare meliora pejoribus , neque ad deum accedi aliter posse quàm cogitatu . and varro hath left upon record , that the romans for more than one hundred and seventy years from the building of their city , worshipped the gods sine simulacro : adding , that if that wise custom had been continued , to his days , the gods would have been observed more religiously ; and alledging the example of the jewish nation to attest that his sentence ; and at length concluding , that they who first set up images of gods for the people , took away fear from their cities , and put error in the place of it . what therefore shall we say of pictures or forms of animals made in flats , or cut in hollows ; are they also by this precept forbidden , or not ? certainly this place cannot be interpreted to condemn them . that not all pictures were prohibited , may with good reason , and assurance too , be inferr'd from the ensigns of the hebrews bearing a man , a lyon , a bull , an eagle , &c. some pictures are indeed forbidden , but in other places ; namely all those which idolaters used in their superstitious and detestable worship . levit. . . to which may be adjoyn'd the figures cut or engraven upon metals , and believ'd to be of power , after their consecration with certain magical words and ceremonies , to defend men and cities from invasion of enemies , scorpions , lyons , serpents , and other hurtful animals , commemorated copiously by maimonides ( ductor dubitant . part . . cap. . ) which opinion the graecians following , call'd such magical figures [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] perfect works : whence comes the corrupt word of the arabians talisman signifying the same thing . others call them ( as we have before hinted ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , principles , or 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , traditions of elements . of these frequent examples occur in the constantinopolitan history , in the posthume works of scaliger , in gaffarel , and in our mr. gregories opuscula . that we may come now to the christians ; they have believ'd themselves to be oblig'd , neither by other laws of the hebrews indeterminately , nor by that of having no graven images of living creatures . for such images and statues both of emperors and of private men renowned for learning and wisdom , have been in most cities extant among them , and are so at this day , without danger of idolatry ; and therefore without offence . and as for figures painted or engraven ; since these were not without difference interdicted even to the hebrews , they have used them more freely , as the figure of a shepherd in a cup or chalice mention'd in tertullian assures us . nay , they abstain'd not from the figure of our saviour christ , after the emperors became christians : witness , these three ancient verses , written by prudentius : christus purpureum gemmanti textus in auro signabat labarum , clypeorum insignia christus scripserat , ardebat summis crux addita crist is . christs figure of bright gold on purple born , did the imperial standard long adorn : drawn upon shields , for arms his picture stood ; and on their crests was rais'd a cross of blood. the same excellent poet ( in passione cassiani ) hath transmitted to posterity , that in the monuments of martyrs was express'd in figures , the manner of their martyrdom , and what they had so gloriously suffer'd . long it was notwithstanding before pictures were admitted into churches , as appears from the eliberin canon , and from that so celebrated fact of epiphanius . longer before statues and prominent images were admitted , nor then without much dispute and opposition ; not because they were prohibited by the law , but only because they were thought to give occasion to error ; which reason was indeed , while paganism remain'd , of no little moment . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt not adore them . so abundant was the goodness and favour of god towards the israelites , that not thinking it sufficient to provide for their defence against the false opinions , and impious customs of that age , for the time they were to live in the society of their own people ; he having a longer prospect , was pleas'd to superad cautions for those of their nation , who should in future times travel abroad and reside among strangers . for there , since they could not hinder the making , and superstitious use of graven images of animals or stars ; another preservative was requisite to prevent their infection by the contagion of some evil and absurd opinion and institute : and the most powerful antidote against all contagion of that kind , was to prohibit to them the imitation of all such gestures , by which that errour was nourished . the hebrew word here by the septuagint translated 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is sufficiently general ; signifying an act , not of the mind , but of the body , whether done by bowing down the head only , or by inclining the whole body , or by bending the knees , or by sitting upon the hams , or ( which is a sign of the greatest honour ) by falling prostrate upon the ground . and yet notwithstanding the greek interpreters had reason on their side , when they rendr'd it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , adorare , to adore . for , as among the peoples of the east , veneration was shewn by various forms of bending the body ; so among the greeks , and some other nations , veneration was generally signified by putting the hand to the mouth ; which properly is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 [ in utero fero , & suavior ] whence 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which is , osculor , i kiss . nor doth the latine word adorare own any other signification , being in truth deriv'd , not from orare , to pray or entreat , but ab ore quod manus admoveatur ori , from putting the hand to the mouth , or kissing the hand . which was not unknown to st. jerom , who ( in apologia contra ruffinum ) saith , qui adorant , solent de osculari manum : nor to apuleius , who interprets adoratio , adveneratio , to be , a putting the hand to the mouth , or kissing the hand , in token of singular honour and veneration . what in an old epigram is , ingressus scenam populum saltator adorat ; is the same with that in phaedrus , jactat basia tibicen . how ancient this manner of veneration is , may be learned from that expression of iob ( . ) if my mouth hath kissed my hand , i. e. if i have offended by extraneous worship . but what hath hap'ned to many other words , that they remain not in the sense of their original ; nay that in process of time , and by long use , the adoptive sense comes at length to prevail over the genuine ; the same hath been the fate of this greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . it began to be used for any gesture whatever testifying reverence . and therefore what the interpreter of st. matthew ( . . ) calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , adorare ; the same in st. luke ( . . ) is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to fall upon the face ; and in st. mark ( . . ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to fall at the feet . sometimes for perspicuity of the sense , one is explicated by the other added , as in st. matt. ( . . ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , falling down they worshipped : and ( act. . . ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , falling upon his face he shall worship god. hence it came , that an external thing being referr'd to an internal , that word is sometimes , though not often indeed , to signifie an act of the mind also , as the words 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sacrifice ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , oblation ; and many other made by time ambiguous . but in this place doubtless is signified , every act whereby honour is wont to be demonstrated to superiours . for as the hebrews are in exod. ( . . ) forbidden to use the names of false gods , though in common talk : so here they are forbid to give any sign of honour to images , quocunque tandem animo id fieret , as moses de cotzi ( praecepto vetante . ) prudently noteth . but that by this interdict of bowing the body to , or before images , strangers-born , how pious soever , are of right obliged ; the hebrews themselves deny , alledging the example of naaman the syrian . nor did the ancient christians believe themselves to be thereby obliged indistinctly , but only so far as there was in the testimony of honour exhibited before an image , a veneration of a false god , which is , per se & omni modo evil : which may be understood from the forecited place in job , from that in the acts ( . . ) and from the well known history of nazianzen . but in places of prayer , whether it were lawful to bow their bodies , in sign of honour , before the images of christ , or of saints , which the greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. a sign of love and reverence towards men eminent and honourable for sanctimony ; was a question long disputed and not without seditions in the east . to germany and france , this seem'd not to be free from evil , or an appearance at least of evil : as appears from the synods of francfurt , and paris , which were held in the times of charles the great and his children . but yet it is to be remark'd , that in those synods the greeks were more harshly treated , because the western bishops interpreted the sentence of the greeks express'd in the second nicen synod , in a harder or more rigid sense , than it was intended , or than the words could well bear : being deceiv'd by the acts of that nicen synod , translated into latine so unfaithfully , as that sometimes they exhibited a sense contrary to the greek ; which may be observ'd , as in other places , so chiefly in those things which constantine bishop of constantia in cyprus had spoken about images . the errours of which translation , so far as they concern this question , have been particularly detected , and by comparing the latine with the greek copy corrected by the incomparable hugo grotius ( ad exod. cap. . ) of whom i borrow'd much , and the best of what is here said . but to end this digression ; that there was somewhat of danger in this honour exhibited to the images of saints ; st. augustin in his time observ'd , when speaking of the christians , he saith , novi multos esse sepulchrorum & picturarum adoratores . at this day the greeks prefer pictures to images , as thinking that in those is less of danger . the armenians abstain'd from both . and as for the habessines , the most learned iobus ludolfus ( hist. ethiopic . lib. . cap. . num . . ) speaking of the singular honour and veneration they have for the blessed virgin mother , saith , eam tanto prosequuntur affectu , ut parum illis videatur , quidquid ecclesia romana in ejus honorem excogitavit : tantùm nullas ei statuas erigunt , picturis contenti . so that being in all things true iacobites , they follow the example of the greeks , who judged pictures of saints more innocent than images . of the muscovites , who yet boast themselves to be the only true christians in the world , since they only are baptized , whereas others are but sprinkled ; olearius assures us , that they universally give their saints and their images the honour due to god alone ; and that the vulgar among them place all religion in the honours and veneration they exhibit to images , teaching their children to stand with profound respect , and to say their prayers before those images for which the parents have most devotion . herein therefore they have degenerated from the greek christians , from whom they pre●end to have deriv'd their faith , doctrin , and sacred rites . ' 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , nor worship them . if by this law god permitted not the honour that was wont to be given to eminent men , to be exhibited , i do not now say to , but before images , or in places where they stood ; he thought it more unfit for his people to be permitted to do before images any of those things , which the custom of nations had made proper to the honour of a divine numen , whether true , or only believ'd to be such . here the hebrew word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is indeed of ample signification , but when spoken with relation to any thing , is wont to be , by the greeks translated as well by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to serve , as by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to obey ; and sometimes also by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to minister unto . but because , when the same is used of things divine , the same interpreters render the sense of it by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thence sprung up that difference , with the latine christians , more than the greek use . otherwise , if propriety be consider'd , there is no more in the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , than in the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; as appears from psal. . . compared with thess. . . in both which places , what is meant by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is the same that in heb , . . is meant by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but where the writer treats of things divine whether truly such , or only thought to be such ; there the hebrew word here used , is wont to signifie particularly those things , which by receiv'd custom through all the east , and that which after was diffused through all graecia , and wider too , were used in divine worship , whether true or false ; namely , sacrifices , oblations , and incense . for these properly are the things , which whensoever they are used in honour of any but the true god , the hellenists or iews speaking greek , and as well the apostles themselves , as apostolic writers , following the hellenists , express by ' 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the worship or service of idols . and in this apostolic sense , idolatry is , as tertullian describes it , quicquid ultra humani honoris modum ad instar divinae sublimitatis attollitur . now both the rites of which we have just now spoken , and all bowing before images are prohibited to the hebrews , because the precept of throwing down and breaking images , in countries not within their jurisdiction or dominion had no place ; as the hebrew doctors rightly observe . with whom agrees that in the lx. canon of the eliberin council ; si quis idola fregerit , & ibidem fuerit occisus , quatenus in evangelio non scriptum est , neque invenitur sub apostolis unquam sactum , placuit in numero martyrum eum non recipi . of the same judgment was st. austin , who ( . contra literas petiliani ) saith , non enim auferenda idola de terra , quod tanto ante futurum praedictum est , posset quisquam jubere privatus : and the african synod under honorius and the younger theodosius , which petitions the emperours to take away the reliques of idols through all africa . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; for i am the lord thy god , a jealous god. this clause belongeth , not only to this second precept ; but also , and principally to the first : to the second , so far as that is inservient to the first . by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is signified , the supream lord ; i who have soveraign right and empire over thee . the other , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is for 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies strong , mighty , potent ; appositely , because mention of revenge immediately follows in the next comma . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , is properly impatient of a rival , as appears in the law concerning the jealous husband ( numb . . ) * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , visiting the iniquity of the fathers upon the children . the hebrew word here interpreted by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , reddens , or rendring , signifies visiting , as our translation rightly hath it ; and is usually taken in the sense of vindicating : and accordingly by the greeks very often expounded by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to revenge . but here is not treated of all sins , but of that sin in particular which is committed about false gods ; as appears from the antecedents and the consequents . this sin therefore , as committed against his divine majesty , god revenges , not only in those who have committed it , but also in their posterity ; namely , by delivering them up into miserable servitude : which he , by the right of his supreme dominion over all men , can do without any the least iniustice . to give authority to this explication , we bring that place in levit. ( . . ) and they that are left of you , shall pine away in their iniquities in your enemies lands ; and also in the iniquities of their fathers shall they pine away with them . we bring also the example of zion , ( lam. . . ) we have given the hand to the aegyptians , and to the assyrians , to be satisfied with bread . our fathers have sinned , and are not , and we have born their iniquities , &c. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to the third and fourth generation . even to the grand-childrens grand-children . this is a proverbial speech ; used also by plato , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he transmits revenge to the fourth generation : and by the poets . et nati natorum , & qui nascentur ab illis . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , of those that hate me . because properly the evil touches the posterity , the punishment the parents . st. chrysostom ( homilia . ad . genes . ) nulla poena plus adfert doloris , quàm si quis ex se natos sui causâ in malis esse videat . and tertullian : duritia populi ad talia remedia compulerat , ut vel posteritati suae prospicientes legi divinae obedirent . in sacred writ they are said to hate god ; particularly , who worship false gods : so that maimonides denies , that that kind of speech is found in any other sense . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and shewing mercy unto thousands . god spake in the plural number , not to a thousand , but to thousands ; shewing how much larger god is in doing good , and conferring benefits , than in punishing . this is what the hebrews mean when they say , that the angel michael [ the minister of god's wrath and vengeance ] flyes with but one wing ; gabriel [ the minister of his mercy , love , and blessing ] with two . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to those that love me . to those that worship me , and that are therefore call'd pious . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and keep my precepts . who are attent to observe all my commandments , but chiefly those which pertain to the exclusion and extinction of idolatry and all wicked superstitions : and who are therefore call'd righteous or iust. chap. iv. the third precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 thou shalt not take the name of the lord thy god , &c. in the hebrew , thou shalt not bear or carry , namely in thy mouth ; which is the same with , thou shalt not take , viz. into thy mouth . here also is , of the lord ; because by that title the tremend majesty of god is best understood . we may en passant observe , that here the manner of speech is changed . for according to the way of speaking used in the former precepts , it should have been my name ; but to the hebrews this is frequent , to put a noun for a pronoun ; as in exod. . , . genes . . . numb . . . and many other places , where the like translation from the first person to the third occurs . * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in vain , or ( as aquila ) rashly , or ( as philo ) to testifie a lye. but to omit all other interpretations of these words , we have the sense of them compendiously exprest in st. matthew ( . . ) thou shalt not forswear thy self : nor is it to be doubted , but our saviour christ in this place urged the very words of the law , where the syrian hath put words that signifie , thou shalt not lye in thy oath or swearing . only this is to be accurately noted , that in this place is treated , not of an oath taken for testimony , of which the ninth precept was particularly given ; but of an oath promissory , which the words following immediately in the same verse of st. matthew sufficiently declare , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt perform unto the lord thy oaths ; ( taken most certainly from numb . . . ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to forswear , taken in its proper sense , is ( as hath been critically observ'd by chrysippus ) to make void what thou hast sworn , or not to stand to what thou hast by oath promised . the weight or hainousness of this execrable crime , philo wisely sheweth , where he saith ; that he who commits it , doth either not believe , that god takes care of humane affairs ( which is an abnegation of gods providence , and the fountain of all injustice , ) or if he doth believe that , he makes god less than any honest man , whom none that designs to assert a lye , would dare to call in for a witness of what he knows to be false . abenesdras adds , that in other sins somewhat of commodity , profit , or pleasure is lookt upon , whereby men may be tempted and carryed away ; but in this oftentimes there is not the least commodity or emolument : that other crimes cannot always be committed , this always . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; for the lord will not hold him guiltless that taketh the name of the lord his god in vain . here according to the greek custome , two negatives are put for one in the hebrew : and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 signifies , to pass by one as innocent . so that the sense is , god will not leave him unpunished : which is a figure call'd [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] an extenuation , such as is used in the gospel of st. matthew ( . . ) blasphemy against the holy ghost shall not be forgiven unto men ; that is , shall be severely punished ; and in many other places of scripture . and this sin is even by the light of nature so hainous and detestable , that the heathens themselves believ'd , that it was always severely punished by god. hesiod said , et juramentum , clades mortalibus unde adveniunt , quoties fallaci pectore jurant . dire miseries pursue those men , that dare , themselves with heart fallacious to forswear . in herodotus this oracle is related . at juramento quaedam est sine nomine proles , trunca manus & trunca pedes : tamen impete magno advenit , atque omnem vastat stirpemque domumque . from perjury a nameless issue springs with maimed hand and foot ; which yet still brings revenge with mighty force ; and doth at last , both the whole race and family devast . and the sweet-tongu'd tibullus could say ; ah miser ! et si quis primo perjuria celat , sera tamen tacitis poena venit pedibus . ah wretch ! though one his perjury conceal , vengeance with silent feet will on him steal . and he had reason ; for an oath is a religious affirmation , as cicero defines it : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a testimony of god upon a doubtful matter , as philo : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , an affirmation with an assumption of god for witness , as clement of alexandria : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the strongest seal of human faith , as dionysius halicarnensis : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the last and most certain pledge of faith , as procopius . wherefore the ancients , even wehre a specious excuse might be brought , held themselves religiously oblig'd to fulfill whatsoever they had by oath promised . concerning the sanction of an oath or vow , consult iudges . . sam. . , , . ioshua . . psal. . , , , . now the reason why god threatens to send from himself dire punishments upon those who either worship false gods , or violate his most holy name by perjury , seems to be this ; to let them know , that though men may perhaps be ignorant of , or neglect to vindicate these crimes , yet they shall never escape the certain hand of divine vengeance in the end ; which many times indeed is slow in lifting up , but always first or last strikes sure and home . chap. v. the fourth precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , remember the sabbath day , &c. in deuteronomy 't is [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] observe the sabbath day ; and in the hebrew is the like difference : in the latter place moses expounds what is meant by remember in the former , namely attend to the sabbath . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to sanctifie it ; viz. by a glad and grateful recordation of the worlds creation by god. for most true is the sentence of rabbi iudah barbesathel , and r. ephraim in keli iacar , that in these words one thing is commanded , and another in the following . the keeping holy of the sabbath day , hath for its true cause the creation of the world : the rest from labour , the egyptian servitude . that extends to all mankind : this to the hebrews only , exod. . . which is the judgment also of irenaeus ( lib. . c. . ) and of eusebius ( histor. c. . ) and thus may we best explicate that of genesis . god blessed the seventh day and sanctified it ; which the hebrew masters will have to be spoken by [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] anticpation , as if moses should say , that this cessation of god from his work of creation was the cause , why after in the time of moses the celebration or sanctification of the seventh day was ordained . but the righter interpretation is that , which distinguishes the precept of keeping holy the sabbath , from the precept of resting from labour , as by the causes , so also by the times . and to this difference moses himself seems to have had respect , when in duternomy to these words , observe the sabbath day to sanctifie it , he adds , as the lord thy god hath commanded three ; namly long ago from the very beginning of the world , as grotius conceives ; or , as selden , from the time when the israelites were encamp'd in mara ( a part of the wilderness so call'd from the brackish bitterness of the waters ) where the observation of the sabbath was first instituted , about forty days before that institution was renew'd in the decalogue . for he refers the first word of this precept ( remember ) to the first sabbath there instituted . and true it is , that the first sabbath was celebrated by the israelites in their tenth mansion or encamping in alush , part of the desert of sin. they came from elim into the desert of sin upon the fifteenth day of the second month from their beginning to march . six days manna was gathered , and one the seventh the people sabbatized . so that the first observation of the sabbath fell upon the . day of the same month ; which being the second month from their exit out of egypt , was after named iiar ( for the names of the hebrew months were then unborn ) and that . day of this month answers to the . of may in the julian year . the seder olam makes this month hollow , i. e. of but twenty nine days ; not full , i. e. of thirty days . whence in computing the feriae or holy days of these months , there hath risen up a discrepancy of one day betwixt that chronicon , and the talmudist's . but that alternate distinction of months , as our most excellent chronologist sir iohn marsham ( in chronic. canon . pag ▪ . ) observes , doth not well agree with the antick chronology of the hebrews . how then shall we reconcile these two different opinions concerning the respect of the word remember , the one asserted by grotius , the other by selden ? by granting , that the precept de observando sabbato , in commemoration of the aegyptian servitude , was first given to the israelites in mara , and a little after renewed at the promulgation of the decalogue , as pertinent particularly and only to them ; and consequently that so far selden is in the right : but that the institution of the sabbath in grateful memory of the worlds creation by god , wherein all mankind were equally concern'd , was as ancient as the world it self , and extended to all nations universally ; and therefore grotius , who seems to have consider'd this general institution and the cause of it , is so far in the right too . for , that some knowledge and veneration of the sabbath was by tradition of highest antiquity derived to other nations beside the hebrews , and remain'd among them for some ages ; clemens alexandrinus ( stromat . l. . ) and eusebius ( in praepar . evang. ) have clearly shewn , as by other testimonies , so particularly by the verses of hesiod , where [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the seventh day is call'd holy. and in iosephus , philo , theophilus , and lucan , are places that manifestly attest the same long-liv'd tradition . and upon this account it was , that the primitive christians , who believ'd that by christ all things were reduced to the same state wherein they had been constituted from the beginning , piously celebrated the sabbath , and therein held their solemn assemblies , in which the law was publickly read and expounded , as appears from that of the acts . . which custom flourished until it was antiquated by the laodicen synod , which judged it more convenient and profitable to christians , that instead of the law , the gospels should be upon that day read to the people assembled . so sacred in those more pure and pious times was the memory of the sabbath originally instituted , that men might with glad and grateful hearts acknowledge and celebrate with praises the infinite wisdom , power , and goodness of god shewn in the creation of the universe ; that they equall'd the sanctity thereof to that of the lord's day consecrated to the perpetual remembrance of that greatest seal of our faith , and pledge of our hopes , the resurrection of our redeemer from the dead . hence balsamo most appositely said ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. by the holy fathers the sabbath days were held in all respects equal to the lords days . hence also gregorius nyssenus calls these two days brethren , as worthy of equal veneration and solemnity : and the ancient book of the constitutions of clement ( l. . c. . ) gives this in precept ; diem sabbatti & diem dominicam festas habete , quoniam illa creationis , altera resurrections memoriae dicata est . nor was it from any other cause , that by the most ancient church was introduced the custom of not fasting upon the sabbath , because it was a day of joy and gladness : as appears from the epistle of st. ignatius ad philippenses , where he saith , si quis aut dominicâ aut sabbato jejunet , excepto uno sabbato , is christum occidit . the same may be inferr'd from that memorable place in tertullian ( advers . marcionem ) meminerat enim & ille hoc privilegium donatum sabbato à primordio , quo dies ipse compertus est ; veniam jejunii dico . where we cannot but observe , that this custom is deduced from the beginning of the world. from the same reason it came , that constantine the emperor , permitting to christians the free use of their worship , at the same time forbad their being compell'd to appear before any tribunal or court of judicature upon the sabbath , no less than upon the lords day : which edict is yet extant in eusebius . these things being known are sufficient to refute those who think that [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the lord's day was surrogated into the place of the sabbath ; of which mention is no where made by christ , no where by any of the apostles . and st. paul , when ( colossi . . ) he saith , that the christians are not to be condemned for their sabbaths and new moons ; sheweth plainly , that they are free from that law of resting from labour , which liberty would signifie nothing , if , the law remaining , the day were changed . that the christians therefore appointed and held their assemblies upon that day , wherein their lord had risen from the dead ; was not from any precept either of god , or of the apostles , but they did it by vertue of the liberty granted to them , and by voluntary consent among themselves . and to violate such consent , after it hath passed into a custom , is not the part of men living in society . but this custom obliged not to rest from labour , farther than was necessary to the holding their assemblies . having thus briefly shewn the difference betwixt the precept instituting a sabbath in memory of the creation , which was from the beginning given to adam and his whole posterity ; and the precept given particularly to the hebrews , both in marah , and soon after at the promulgation of the decalogue , whereby they were obliged to celebrate the sabbath , by resting from dayly labours , in remembrance of their redemption from the aegyptian servitude ; and assigned to each its proper cause and time : it will not perhaps be impertinent , if we subjoin a line or two concerning the word sabbata here used in the plural number . this word among the greeks is listed in the catalogue of those , which tho' pronounced in the number of multitude , are yet notwithstanding often contented with the signification of unity . and so is it often found in the greek pentateuch ; so also in mat. . , , , , . and c. . . in mark . . and . , . in luke . . on the contrary st. iohn every where speaks it in the singular , as do also the greek interpreters of the other books extra pentateuchum . the latines often exprest it , as here , in the plural . so horace , sunt h●die tricesima sabbata ; and iuvenal , quidam sortiti metuentem sabbata patrem . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , six days shalt thou work , and do all thy works . here now begins that constitution which is not common to all mankind , but proper to the hebrews . and what is here spoken in the imperative , and in the future , which is often taken from the imperative hath not the force of a command , but the sense only of suffering or permitting . for lest the modes might be too much multiplyed , it hath seem'd good to almost all nations to express the sense of permitting , as also of praying , with the same sound , with which they express the sense of commanding : as , for example , sequere italian ventis , in virgil ; and ubi nos laverimus , si voles , lavato , in terence ; and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , vre haec cremaque membra , in an old greek tragedy . by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 here are signified all sorts of work , by cicero ( de ligibus l. . ) call'd famula opera ; ferii jurgia amovento , eaque in famulis operibus patratis habento : and by tertullian , humana opera quotidiana , whatsoever men commonly do in their ordinary vocations or daily business . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; but on the seventh day is the sabbath of the lord thy god. the seventh day is dedicated to god from the beginning . and wisely do maimonides and other hebrew masters distinguish the cause why rest or quiet was commanded , from the cause why it was commanded upon this day . the former cause is exprest in deuteronomy plainly to be , because the israelites lately freed from the aegyptian slavery by divine help , ought to remember and consider how hard and grievous servitude is , and therefore to treat their servants and others subject to their command with humanity and clemency ; as dido in virgil , non ignara mali miseries succurrere disco . the latter is declar'd in this place , where it is signifi'd , that when any day might have been taken for rest or vacation for labour , this was chosen by god , because from the beginning it had been dedicated to joy , and the grateful commemoration of the worlds creation by him ; and because upon the same day god had finish'd all things , and ceas'd from creating , whence the seventh day deriv'd the name sabbath . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt not do every work therein . god by many words inculcates this precept concerning the sabbath , that by the perpetual observation thereof might be impressed upon the minds of all , a firm knowledge that this world was not from eternity , but made by god , which is a strong inducement to the veneration of the omnipotent creator , as on the contrary , the belief of the worlds eternity , is the way to impiety and down-right atheism . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; thy son and thy daughter . he understands those , who by reason of their minority have not yet attain'd to knowledge of the law ; whom their parents ought to restrain from working upon the sabbath . for they that are of more advanced age and understanding , are by the law bound for themselves ; as likewise in the law of circumcision . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; thy man-servant and thy maid-servant . this is [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] a kind and courteous way of speaking , much used by the greeks to their servants , and in imitation of them by the latins , who with like softness and humanity call'd their men-servants , pueros , as hath been of old noted by servius upon that of virgil , claudite jam rivos pueri . hence the names of ancient men-servants , marcipor , quintipor , &c. so epicurus call'd his servants friends , as seneca ( epist. . ) observes , who in imitation of him , saith of them ( epist. . ) servi sunt ? imò homines . servi sunt ? imo contubernales . servi sunt ? imò humiles amici . servi sunt ? imò conservi , si cogitaveris tantundem in utrosque licere fortunae . than which he could have said nothing more becoming his great prudence and erudition . hence also were masters call'd patres-familias , and mistrisses matres-familias , that by the very name they might be admonished of humanity . and this precept obligeth masters , not only not to injoyn labours to their servants of either sex , but not to suffer them to work upon the sabbath . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; thy ox , and thy ass , and every beast of thine . observable here is the great clemency of god , who by this law requires some goodness and mercy to be exercised even to brute animals , that he might remove men the farther from cruelty toward each other : and to confirm this mild precept , the like is given in deuteron . . . the same reason is urged by porphyry [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of abstinence from eating of the flesh of animals . hence also was the slaughter of a plowing ox prohibited by a law common to the phrygians , cyprians , atticks , peloponesians , and romans , as we find recorded by varro , pliny , columella , porphyry , aelian , vegetius and others . the athenians made a decree , that a mule should be fed at the publick cost , which worn out by labour and age , used to accompany other mules drawing burdens : and banished a boy for putting out the eyes of little birds , taking it for a sign of a mischievous and cruel disposition in him . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 are , besides oxen , asses , and mules , which also were used to the yoke . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , beasts , as well dogs as other quadrupeds . but these words are by the greek interpreters translated hither from deuteron . . for in the hebrew is found only one general name , signifying all mute animals whatsoever : which the greeks render sometimes by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , beasts ; sometimes by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , four-footed living creatures , and sometimes ( from the sense of the place ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , wild beasts . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : and the stranger that is within thy gates . of proselytes there are ( as we have often hinted in the former part of this disquisition ) two sorts ; some , who subjected themselves to the whole mosaic law , that they might be participant of the right of marriages and honours among the holy people : others , who though of forreign blood , were notwithstanding permitted to dwell among the hebrews , so long as they worshipped one god , and observ'd the perpetual and common laws of all nations , together with the additional laws interdicting incestuous copulation , and eating of blood ; of both which we have spoken profess'dly in the precepts of the sons of noah . now it is of this latter kind of proselytes ( as abenesdras noteth ) that the precept here speaks , such as had not admitted the seal of circumcision , and whom st. luke ( act. . . ) rightly enough calls [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] devout greeks , because the hebrews used to call all gentiles greeks . * here it may be inquir'd , why such a stranger or proselyte , though not oblig'd by other laws of moses , as appears from deuter. ( . . ) was yet bound to keep this of resting from labours upon the sabbath . the reason is this ; if while the hebrews rested , strangers had been permitted promiscuously to work and dispatch their businesses ; they would have diverted the stream of gain and profit from the natives ; which was repugnant to justice and equity . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 is to the latines incola , a sojourner , one that fixeth his seat in a soil not native to him . thus in the gospel of st. luke ( . . ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou art a peregrine or stranger . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; for in six days the lord made heaven , and earth , and the sea , and all things that are in them . a brief description of the universe , as in acts. . . at first the earth was rude and without form , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , mud , to the phaenicians , intermixt and overwhelm'd with waters , which is call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the abyss or bottomless gulph . of these god made the earth dry land , gather'd together the seas , and distinguish'd the air into two parts , the superior or aetherial , wherein he placed the stars ; and the inferiour , which surrounds the terraqueous globe : then to this lower air , to the earth , and to the waters he added their proper animals ; and particularly to the earth he affix'd herbs , trees , &c. and in fine , he made man : and all in six days , though he could have made them in one moment , that he might by his example , teach men to act with counsel and deliberation , and [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] to hasten slowly . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and he rested upon the seventh day . the sense is taken from genes . . . by 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , requievit , is signified , not that god was weary with working , whereof the divine nature is incapable ; but that he ceas'd from creating , or put an end to all his works : converting himself to the survey and contemplation of the most beautiful world he had newly rais'd and made out of nothing ; as philo excellently observes . from gods example the hebrews also were commanded to devote this day to pious contemplation , and the learning and commemorating sacred things . of which pious custom there remains an ancient testimony in kings , . . and the number seven was call'd 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , more anciently 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , worshipping . * concerning this seventh day , by philo ( lib. de vita mosis ) call'd [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the worlds birth day , various are the opinions of the iewish masters . some think that the septenary period of days was first instituted by adam , and began from the six days of the creation . others affirm , that seth found out the way of computing the flux of time by weeks , months , and years . but however disputable this question be , highly probable it is , that philo hit the white of truth , when he observ'd , that the true seventh or sabbatical day came first to be known to the hebrews from the miraculous cessation of manna to rain upon that day : whence 't was easie for them to understand , what day in the weekly circle of seven days ought to be reckon'd the seventh from the creation , which was altogether unknown to them before . the same most learned and wise iew , treating [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of the making of the world , and of the number seven , saith , that this number hath been held of singular honour by the more illustrious of the greeks and barbarians ; who were versed in mathematick studies . and certainly the aegyptians were the most ancient masters of the mathematicks , by whom , both pythagoras and plato being taught , have very subtilly philosophiz'd concerning the power and dignity of the septenary number in general , which the greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . this number ( saith a. gellius from old varro ) makes in heaven the septentriones or charle's wain , and lesser constellation of the same name ; also the pleiades , and the seven planets . nor doth the zodiac want characters of that noble number . for in the seventh sign is made the solstice from winter , or the shortest day in the year , and again , from the summer solstice in the seventh sign is made the winter solstice . both equinoxes are confin'd to a seventh sign . whence in the sacred rites of osiris , a little before the winter solstice , plutarch tells us ( in iside . pag. . ) the aegyptians used to lead a cow seven times about the temple , because the course of the sun from solstice to solstice is finish'd in the seventh month. and they affirm , that all the great dangers of the life and fortunes of men , which the chaldeans call climactericks , happen in septenaries : of which abstruse argument clemens alexandrinus ( stromat . l. . pag. . ) and macrobius ( in somn. scipionis ) have written copiously , and with no less assurance , than if they had certainly known that there are such climacterical mutations of human life . in sacred things also , in purifications , invocations , and other religious rites , the septenary number hath been esteem'd of singular vertue and solemn observation . whence apuleius describing the manner and ceremonies of his preparation for the worship of isis ( metamorphos . l. . initio ) saith , me , purificandi studio , marino lavacro trado , septies submerso fluctibus capite ; quòd eum numerum praecipuè religioni aptissimum divinus ille pythagoras prodidit . and virgil ( aeneid . . vers . . ) testifies that invocations also were to be seven times repeated . — longâ cum veste sacerdos obloquitur numeris septem discrimina vocum . of the septenary number of days , they observe , that the monthly course of the moon is performed in four times seven , i. e. in twenty eight days ; that the birth of infants depends very much upon the power of this number : and they observe the first seven days , the fourth week , and the seventh ; as a. gellius . and from the scholiast upon aristophanes we learn ( in plut. p. . ) that by the athenians some certain days of every month , besides other feasts or holy-days , were consecrated to some gods particularly ; as the new-moon , and the seventh to apollo , the fourth to mercury , the eighth to theseus . the same was long before taught by hesiod in this distich : primùm prima , quarta , & septima dies sacra est : hâc enim apollinem auri-ensem genuit latona . in the mosaic rites also the septenary number is solemnly respected . in the consecration of the altar , oyl is seven times sprinkled upon it : in seven days the consecration of priests is consummated : in the expiation of sin committed through ignorance , the blood of the bullock is sprinkled by the priest seven times before the mercy-seat ( levit. . . ) a woman that hath brough forth a male child , is unclean seven days : she that hath brought forth a female , is unclean twice seven . a man unclean by touching a dead corpse , is expiated upon the seventh day . in the purification of a leprous man , seven aspersions , and seven days are ordain'd : and accordingly naaman wash'd himself seven times in iordan . iob offer'd for his friends seven bulls , and as many rams . balaam built seven altars , and prepared seven bullocks , and seven rams . seven priests sounding trumpets went seven times round about iericho , and on the seventh day the walls thereof fell down . just so many priests sounded with trumpets before the ark , and an equal number of bulls and rams were offer'd in sacrifice . ezechias also offer'd seven bulls , seven rams , seven lambs , and seven hee-goats ( chron. . . ) in ezechiel ( . . ) arms and weapons are commanded to be burnt with fire seven years : and the land purged in seven months ; and ( chapt. . . ) the altar is in seven days expiated . daniel numbers the times by hebdomadas . in the apocalyps , the book is seal'd with seven seals , the lamb hath seven horns , seven eyes , which are the seven spirits of god ; and to the seven angels are given seven trumpets , and seven phials . in a word , in mysteries this number as the most perfect ; hath always been preferr'd to all other . but the most celebrated , and to our present enquiry the most pertinent , is the septenary cycle or round of days , or the seventh day in the weekly periods of days perpetually recurrent ; such as is the sabbath of the iews . the aegyptians , the most ancient computers of times , are reported by authors of good credit , to have deriv'd the weekly circle of days from the number of the planets , and to have propagated that account of time , together with their astrological discipline . for herodotus recounting the noble inventions of that mighty nation , saith ( in lib. . c. . ) alia etiam ab egyptiis inventa sunt : quis mensis , & quis dies cujusque sit deorum : & quo quis die genitus , qualia sortietur , & quam mortem obiet , & qualis existet . quibus rebus usi sunt ii qui è graecis in poesi versabantur . where dies deorum are the days of the week , denominate from the vii planets : for in the genethliac art of the egyptians , they obtain the name of gods , and every planet hath his peculiar holy-day assign'd to him : and therefore dio cassius the greek historian ( lib. . pag. . ) said truly , quòd verò dies assignantur septem planetis , id certè inventum est egyptiorum . but in the denomination of the seven days , they have not observed the order of the planets , that is in the series of the coelestial orbs. whereof various writers have excogitated various causes . of all these , the reason given by our venerable bede seems to be the most simple , and therefore the best . the gentiles ( saith he , de tempor . ratione cap. . ) though that they by good right consecrated the first day to the sun , because it is the greatest luminary ; the second to the moon , because it is the second luminary . then by an ordinate alternation , they made the first planet from the sun , mars , president of the third day , the first from the moon , mercury , lord of the fourth ; the second from the sun , iupiter , ruler of the fifth ; the second from the moon , venus , lady of the sixth ; and the third from the sun , saturn , governour of the seventh . now because this saturn was by astrologers imagined to be a sad , ill-natur'd , and malignant planet ; therefore the seventh day , in which he ruled , hath been accounted a black and unlucky day ( forsooth ) and unfit for business and the performing of any work , and so set apart for leisure and rest . nor have orpheus and hesiod doubted to propagate this precarious and superstitious doctrine . to which tacitus , writing of the jews , seems to have respect in these lines : septimo die otium placuisse ferunt ; quia is finem laborum tulerit . alii honorem eum saturno haberi ; seu quòd è septem sideribus ( queis mortales reguntur ) altissimo orbe , & praecipuâ potentiâ , stella saturni feratur ; ac pleraque coelestium vim suam & cursum per septenos numeros conficiant . but whatever was the reason that induced the egyptians to assign the seventh day to saturn , we have none to doubt but that this planetary denomination of the days , though not received into use by the grecians till many ages after , is originally of remotest antiquity , equal to that of astrology it self , and to the age of mercury the first , who taught the egyptians the art of computing the year and times . for beside the auctority of herodotus and dio cassius above-cited , we have that of plato also ; who ( in phaedro ) introduces socrates speaking of the egyptian theuth , i. e. mercury ; these words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , &c. that is , that he first invented numbers and computation , and geometry and astronomy , and the games of cockle-blanck and dice . nor are there wanting some of the rabbins themselves , who have granted that this denomination of the days was in use among the gentiles before the decalogue was given . and chaeremon in porphyry ( de abstinentia ) affirms , that the egyptian priests , in their purifications observ'd the seventh days . we may therefore acquiesce in this persuasion , that the weekly cycle of days was taken from mathematick discipline , and from the most secret treasury of egyptian antiquity : but that the sacred observation of every seventh day , and the feast of the hebdomadical sabbath , constituted by this mosaic law , in memory of the egyptian servitude , was now first receiv'd into the religion of the hebrews ; as also that this their sabbath was by the miracle of manna ceasing to rain down upon that day , fixt upon the true seventh day from the creation , which god had from the beginning sanctified . nor is it to be doubted but that this precept of keeping holy the sabbath day , was peculiar to the israelites . for god himself was pleased to say ( exod. . . ) it is a sign betwixt me and you in your generations ; that ye may know that i am the lord who sanctifie you . ye shall therefore keep the sabbath ; for to you it is holy . nor will the masters allow it to have pertained to the gentiles . some exempt even proselytes of the house from the obligation of this precept ; but how that exemption can be brought to consist with those words of the law [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] and the stranger that is within thy gates , i see not . chap. vi. the fifth precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. honour thy father and thy mother , &c. that this precept ( among those that are as it were imprinted upon the mind of man by nature , and legible by the light of right reason , not the least ) was first given to the israelites in marah ; we have the authority of the babylonian gemara , where ( in titulo sanhedrin . cap. . sect . . ) we read ; decem praecepta acceperunt israelitae , in mara : septem quae noachidarum fuere ; jam vero adjecta sunt iudicia , sabbatum , & parentum honos . that it obtain'd among the egyptians also , and was by them placed next after the precept of divine worship ; is evident from the funeral apology used among them , wherein the libitinarius personating the defunct , saith , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , i have ever honour'd those who begat my body . and that the same was taught also in the school of pythagoras , who learned all his doctrines from the egyptian priests ; is equally manifest from the golden verses , where immediately after the precept of worshipping the godsfollows , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and honour thy parents . but long before the days of pythagoras was this law placed in the temple of ceres eleusinia , if we may confide in the testimony of porphyry , who ( from hermippus ) in de abstinentia , p. . and . saith , as st. ierom hath translated the place ( iovinian . l. . p. . xenocrates philosophus de triptolemi legibus apud athenienses tria tantum praecepta in templo eleusinae residere scribit : honorandos parentes , venerandos deos , carnibus non vescendum . and socrates in xenophon . ( memorabil . l. . p. . ) saith , civitas ingratitudinis alterius rotionem non habet , neque datur actio in eam : verùm si quis parentes non honorârit , & actio adversùs eum scribitur , & magistratum capessere non permittitur . for , in the [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] inquisition made into the manners and life of those who were to be admitted to magistracy , they were interrogated first , if they were descended for three generations at least on both sides from athenian citizens ? and secondly , if they had duely honor'd their parents ? because he that is impious toward his parents , cannot be judged pious toward his country . nor toward god neither , saith menander in this distick , qui patrem incilat , voce maledicit patri : at in hoc se parat at ipsi maledicat deo. to return to the egyptians ; doubtless the sons among them shew'd all signs of filial respect and honour to their fathers while they lived , since they piously venerated them even after their decease , and paid a kind of religious reverence to their dead bodies , to that end preserv'd by precious embalmments ; as if death could not cancel their bonds of gratitude , nor fate extinguish their sentiments of natural piety . whence that honourable testimony given of them by the prince of antiquaries , diodorus the sicilian ( lib. . pag. . ) sanctissimè receptum est inter egyptios , ut appareant parentes aut majores , ad eternam habitationem translatos , impensius honorasse . whereto he adds , that it was lawful for them , in case of necessity to pawn the dead bodies of their parents : but those who redeem'd them not , were punish'd with highest infamy and contempt during life , and after death with privation of sepulture . nor were the egyptians the only nation that taught and urged obedience and honor to parents , from the dictates of nature . for the grave plutarch ( de philadelphia ) saith , omnes dicunt atque canunt , primum ac praecipuum honorem post deos , parentibus destinasse & naturam , & naturae legem . nor is there is the whole world any people so barbarous and savage , but by mere natural instinct they understand , that honour and reverence are due to parents . wisely therefore did philo iudaeus account this precept now confirmed at the promulgation of the decalogue , the last of the first table , and placed in confinio utriusque his reason this ; natura parentum videtur esse confinium immortalis & mortalis essentiae . immortal , because a father by begetting resembles god the genitor of all things : and in the violation of it he puts the highest inhumanity , most detestable to god and man ; feritatis primas ferunt , qui parentes negligunt . and in truth this law is the cement of human society . for he that loves and reveres his parents , will requite their care with good education of his children , love his brethren and sisters as branches of the same stock with himself , cherish and assist all his kindred as descendent from the same progenitors : whence flows that whole series of consanguinity and natural relation ; and whence was the most ancient original of nations , cities , and towns , when tribes and numerous families conjoyn'd themselves into societies under the government of their heads . after this , when men conven'd from many places , they began by common consent to constitute kings and governours , by the example of parents , to whom the ancients therefore gave the most proper and obliging name of fathers . for which reason in the roman laws , and in those of other nations , the crime of majesty , which we call high treason , is put before all other crimes , as most pernicious to the peace and safety of the common-wealth : and for the same reason is this precept of honouring parents put before the rest that respect human society . here god hath been pleased to name ( and certainly as he is the author of nature , and maker of all children in the mothers womb , so is he the most equal judge ) the mother as well as the father . whereas the laws of this kind made by men , provide almost for fathers only ; as the persian law commemorated by aristotle , and the roman described in the digests and institutions , mentioned first by epictetus , then by simplicius , and philo ( de legatione ) and though ( in collisu ) the right of the father be the better , by reason of the prevalency of his sex , for which god gave the husband dominion over the wife : yet certainly obedience and reverence , which are here signified by the word honour , are from children due to both . in the same word is comprehended also the duty of thankfulness and a grateful requital , as much as in children lyeth ; for indeed a full requital can never be made to parents for the great blessing of existence and life given by them to children ; as both aristotle and philo have observ'd : quomodo enim ab aliquibus genitus eos vicissim generare possit ? and as god was pleased , for mans imitation , to impress upon mute animals visible characters of almost all virtues , of justice , clemency , chastity , fidelity , friendship , &c. not of all in all , but of each in particular species : so hath he given for an example of filial love and piety , to men the storks which sustain and nourish their parents , when they are grown old and weak . for this also is comprehended in the first word of this precept [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] honour , which in its chief sense signifies to nourish , as appears from the timothy . . honour widows that are widows indeed , i. e. relieve their wants , and contribute to their maintenance . and so the hebrews interpret that text in numbers . . i will promote thee unto very great honour . so cicero ( officior . . ) treating of duties to kindred and near relations , saith , necessaria praesidia vitae debentur his maxime . and hierocles , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : i. e. we shall highly honour parents , if we most readily serve them with the ministry of our body , and the help of mony . here i cannot but take notice of a strange distinction made betwixt sons and daughters , by the egyptians in their law of nourishing parents labouring of old age or poverty , and recorded by herodotus ( l. . . ) nulla est necessitas filiis alendi parentes , nolentibus : sed filiabus summa , etiamsi nolint . sons are under no necessity to feed and sustain their parents , against their own will : but daughters are most strictly bound to nourish them , though against their will. an odd law this , to impose the burden upon the weaker sex , and exempt the stronger ; and the more admirable to me , because no reason is added to it by herodotus , nor can i fix my conjecture upon any that is probable . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that it may be well with thee . this is here added out of deuteronomy , for explication sake ; or perhaps ascribed on the margin from that place in epist. to the ephesians , . . . many such additional clauses being found in the scripture . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that thou mayst live long . here abenesdras noteth , that god is wont , when he forbids any thing , to annex the penalty ; where he commands , the reward , as in this place . but st. paul in the just now cited place to the ephesians , noteth this more , that this is the first commandment with promise . the law in direct words promiseth only temporal felicity , as st. ierom observes ( l. . commentar . in epist. ad galat. & . dialog . contra pelagium , ) and st. austin ( de civit. dei l. . cap. . ) and of temporal felicity the principal part is long life . which is generally promis'd to those that keep the law , as in levit. . . and . . and in deuter. . . . and in ezech. . . some expound the hebrew words , that they may prolong thy days , namely thy parents by their favour and prayers to god. but i fear lest this interpretation be too subtile , and adhere rather to the seventy and other interpreters , who take the hebrew word , though of an active form , in a passive sense ; viz. that thy days may be prolonged . to absolom violating this precept , his days were cut off or shortned . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , vpon the earth , or in the land. life in exile , is not life , but a long death . therefore god promiseth to obsequious and dutiful children a long life , and that too at home in their own country . and ezechiel enumerating the causes of deserved exile , puts the contempt of parents in the head of the catologue ; chap. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , the good land. this also hath been added from deut. . . but deservedly . for that land was in those days truly good and singularly fertil , abounding with milk , honey , and corn , and other fruits ; and the only land that produced balsam , which it continued to do in good plenty down to the days of pliny , who therefore praised it , and doth even at this time though in less quantity . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which the lord thy god will give thee . the present for the future , as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , who will come , matth. . . it must be something great and highly estimable , that god confers as a donative upon the posterity of those whom he loved above all others , and to whom he promised to give it . but as god promises great blessings to those that observe this precept : so on the contrary he threatneth grievous punishment to those that contemn and revile their parents , namely death by decree of the judge , if the matter be by sufficient testimonies prov'd against them , exod. . . . ) and if the matter be not brought to publick notice , divine wrath ( deut. . . ) than which nothing is more dreadful , and from which good lord deliver us . chap. vii . the sixth precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt not commit adultery . in the hebrew this precept is placed next after that against murder , and the greek copies also now keep the same order in the rehersal of the decalogue in deuteronomy . but lest any should think this transposition of these two precepts a thing recent , i must observe , that philo in his time read them , as we now do ; and that he gives this reason for it [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] that among unjust facts adultery is the greatest . and again after he hath with admirable eloquence described the many evil consequents of this crime , he saith , meritò deo & hominibus exosa res adulterium inter crimina ordinem ducit , meaning the crimes that are injurious to men . nor did the ancient christians read them otherwise , following the greek codes ; as appears from tertullian ( de pudicitia ) who saith , eo amplius praemittens , non maechaberis , adjungit , non occides . oneravit utique maechiam , quam homicidio anteponit , &c. wherefore whenever the ancients bring in these precepts in another order , they bring them out of deuteronomy , not out of this place of exodus . let us then , since we may do so without injury to the diligence of the masorets , follow the greek edition , which we have taken into our hands , and which may be defended not only by its antiquity , but also by this probable reason , that many of the hebrew women preferr'd chastity to life ; and that in the judgment of aristotle , the crimes that proceed from the desire of pleasure , are more hainous than those that come from anger . abenesdras thinks , that by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , he hath committed adultery , all unlawful venery ; and simple fornication is signified : but we find , that among the hebrews that word is every-where taken only in the sense of adultery , and so translated in this and other places , by the greek , latin and other interpreters . true it is indeed , that in the mosaic law there is an interdict , that there should be no whores in the people of israel ; and that incests , and marriages with strange women that worshipped false gods , and the portenta veneris or unnatural lusts , are also strictly prohibited . but there was nothing of necessity that in so brief a decalogue all the crimes that were afterward to be interdicted , should be mentioned , when it was enough that those were toucht upon , that might most hurt either piety , or human society . so there is no mention made of wounds inflicted , but of murder , which of all kinds of violence offer'd to the bodies of men is the greatest . in these words therefore is properly comprehended both the wife that yields the use of her body to any other man besides her husband , and the man that polutes anothers wife . both are condemned to suffer death , levit. . . which punishment the christian emperors , constans and constantius long after introduced into the roman empire , as appears from the theodosian code . nor is this capital punishment to be thought more severe than equity requires , if we well consider that common-wealths arise from , and are conserv'd by marriages , that their very foundations are shook by adultery , that conjugal love is converted into mutual hatred , that inheritances are alienated to a spurious issue , while the right heir is supplanted ; that whole houses are fill'd with reproaches and feuds , which descend to posterity ; and not seldom break forth into publick miseries and destruction . of these dire mischiefs , and a hundred other ( too many to be here in this brief and desultory discourse particularly mentioned ) sad and tragical examples occur in almost all histories , whether ancient or modern : and the consideration of them made epicurus , in the moral sentences ascribed to him , to say , what evil doth it not draw upon a man , to desire to have to do with a woman , whose company is interdicted to him by the laws ? doubtless a wise man must be deterred from admitting such a design into his thoughts , if not by the manifest injustice thereof , yet at least by the great solicitude of mind requisite to obviate the many and great dangers that threaten him in the pursuit of it : it being found true by daily experience , that those who attempt to enjoy forbidden women , are frequently rewarded with wounds , death , imprisonment , exile , and other grievous punishments . whence it comes , that for a pleasure which is but short , little , and not necessary to nature , and which might have been either otherwise enjoy'd or wholly omitted , men too often expose themselves to very great pain , danger , or at best , late and bitter repentance . chap. viii . the seventh precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , thou shalt not kill . that in the books of our time this precept hath been unduly placed after that against theft , philo , tertullian , and others clearly shew . philo saith truly , that he who commits homicide , is guilty also of sacriledge , in that he violates the image of god : and then he most hainously sins against society , to which all men are born , and which cannot consist , if innocency be not safe from violence . since nature hath instituted a certain cognation betwixt us , it is a genuine consequence , saith florentinus most wisely , that for one man to lye in wait for the blood of another , is a high crime against the law of nature . then again , he that assumes to himself that power over the life of another , how nocent soever , which the law attributes only to the judge , violates the civil laws . so that homicide is a crime against the majesty of god , against the law of nature , and against the laws of humane society , or civil government . but by the verb [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] to kill , is here signified , not every act by which the life of another is taken away , but the unlawful act , which is wont to be the sense of the hebrew word , [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] he hath murder'd . what therefore is done in defence of life or chastity , is exempt from this law , by that of exod. . . and deut. . . so are other killings that the law permits , as the killing of him that attempts to seduce to the worship of strange gods , deut. . , , . and the killing of an homicide is permitted to the revenger of blood , who was the next of kin to the person slain . the same is to be said also of those who have receiv'd from god a special mandate to kill some peoples or men. for there is no injury in what god commands , who hath by highest right most absolute dominion of the life and death of all men , even without cause given . of the right of zealots , deriv'd from the example of phineas the son of eleazar ( numb . . . ) we have formerly spoken in art. . of chap. . of the former part of this disquisition . chap. ix . the eighth precept explained . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . thou shalt not steal . under the name of theft is comprehended all subduction or taking away of the goods of another , whether it be done by force , or by fraud . society , to which ( as was just now said ) all men are born , cannot subsist , unless every mans possessions be in safety . he therefore that either by open violence , or by privy stealing , takes any thing from a private man ; at the same time both wrongs him , by invading his propriety ; and hurts the common-wealth , by dissolving the common ligament or bond of it , which is the safety of every mans private right or propriety . nor is it to be doubted , but he that indulges to himself that licence , would , if he could , invade all things of all men , and by open force make the common-wealth his own . for injustice strengthned by power , becomes tyranny . therefore , * the seeds of so great and pernicious an evil were to be early oppress'd , and the diligence of all men to be excited to labours , by faith made to them , that they should quietly keep , possess and enjoy whatsoever they by their honest pains , art , and industry acquired . to admit theft , saith paul the learned roman lawyer , is prohibited by law natural . and vlpian saith , that theft and adultery are by nature shameful and odious . by the mosaic law , the panishments of theft were various , according to the quality and valour of the things stolen , and some other circumstances . but theft of the most precious thing , of a man , which the latines call plagium , was punish'd with death . exod. . . and deut. . . which abenesdras , in his notes upon this precept , will have to be understood only de puero , of a boy or child that cannot speak . theft of a man was interdicted also by the roman law , f. f. de furtis . . so it is by our law , which makes it felony . chap. x. the ninth precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . thou shalt not speak against thy neighbour a false testimony . neighbour here is , an israelite of the same country ; as appears from exod . . . and levit. . . where it is said , thou shalt not stand against the blood of thy neighbour . which according to the interpretation of the masters is , thou shalt not stand an idle spectator when an israelite one of thy own nation , is assaulted , and his life in danger , but help to deliver him from the aggressor . and to this neighbour is opposed [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] an enemy . but in the gospel , neighbour is every man of whatsoever nation or country , as in st. luke . . where the good samaritan is by christ himself declared to be neighbour to the iew that was wounded by robbers : and before the law of moses , all men were neighbours , as is hinted in genes . . . and they said one to another , i. e. in the hebrew , a man said to his neighbour . the hebrew word here englished speak , properly signifies to give answer to an interrogation ; and in that sense we take it , for witnesses were wont to be solemnly sworn or adjured , i. e. by an oath administred and taken by the most holy name of god , excited to give true testimony in the matter under enquiry before the judge , who administred the oath : and then to answer the questions by him propos'd . so are we to understand that of levit. . . and if a soul sin , and [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] hear the voice of adjuration , and is a witness , &c. the party accused was also adjured by the judge in the name of god : of which ancient custom we have an example in ioshua . . and in matth. . . and the form of interrogating and adjuring the accused was , [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] give glory to god ; as in the examination of achan by ioshua , my son , give glory to the lord god of israel , and make confession unto him , and tell me now what thou hast done . hence some learned men with good reason collect , that achan was not without hope , that the souls of men survive their bodies , and remain after death to eternity . for by what other hope could he be brought to confess himself guilty of a crime , which he knew to be capital without pardon ? nor could he be ignorant of the common perswasion of the hebrews , that by confession and death , full forgiveness of such crimes might be impetrated or obtain'd from god. this form of adjuration was used by the prophets and judges of the great sanhedrin constituted by god , as hath been rightly observ'd by grotius ( ad ioannis cap. . vers . . ) and in the thalmudic digests ( titulo de synedrio ) simeon one of the senators thus spake to king iannaeus ; non stas coram nobis , sed coram eo qui dixit , fiat & factus est mundus . sometimes this form indeed was express'd in other words , but the same sence was still retain'd : as in kings . . [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] i adjure thee to speak to me the truth in the name of the lord. now this crime of bearing false witness , which is here prohibited , is also hainous and execrable in various respects . first because verity , which is as it were another sun among men , is thereby violated and brought into contempt . then because the guilty are helped and absolved , and the innocent hurt and oppress'd ; both which are against the rules of justice . in fine , because a false witness deceives and mocks the judge , who is gods vicegerent ; and doubtless would do the same to god himself also , if he were not above all illusion . the punishment appointed by the law of moses for a false witness , was most apposite , namely what the latines call poenam talionis , i. e. an evil equal to that which the person against whom the false witness gave testimony , might have suffer'd , in case the testimony had imposed upon the judge : so that the punishment might reach even to death , if the party accused were upon trial for life . chap. xi . the tenth precept explicated . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . thou shalt not covet thy neighbour's wife , nor his house . by the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , to desire , here most fitly used by the greek interpreters , is signified , not every sudden motion of the mind , or [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] phantasie exciting the mind , as philo speaks , but the passion or disease of the mind call'd lust , when a man resigns up the conduct of his will to that sensual desire , and pursues the object of it ; or as the poet pathetically expresses the passion , vulnus alit venis , & caeco carpitur igne . seneca ( de ira lib. . cap. . ) calls the former , a motion not voluntary , a stroke of the mind that cannot be declin'd by reason : the latter he saith , arises from judgment , and is by judgment to be taken away . of this moreover he makes two degrees ; one , that is not yet obstinate , but vincible by reason ; the other , that already triumphs over the understanding , and leads the will captive in chains of impotent desire . in the old testament also we find the hebrew words here used to express concupiscence , most frequently to denote , not those first and indeclinable motions alone , but the permanent study and fixt purpose to obey , cherish , and gratifie them ; as in michaea . yea , more in this place seem to be noted , the acts by which the wife or house &c. of another man is indirectly coveted ; such are the sowing or fomenting of discord and animosities betwixt husband and wife , whence follows divorce ; promoting suits at law , and other artifices of conceal'd iniquity . and this to me seems to be the reason why st. mark ( . . ) expounds this precept by [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] ne fraudem feceris , defraud not : which both the order of the laws there recited shews , and because [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] thou shalt not steal , went before . but although this may seem to be the sense of this precept [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] in a grosser interpretation ; yet have philosophers of the soundest judgment always held , that the meer purpose in lust or coveting , though it never proceed to act , is sinful . aelian said wisely , non solùm malus est , qui injuriam fecit , sed & qui facere voluit , me quidem judice . nay , ovid himself , though no example of chastity , could say ; quae quia non licuit , non facit , illa facit vt jam servaris benè corpus , adultera mens est . seneca the father saith the same thing , and with equal elegancy ; incesta est etiam sine stupro , quae cupit stuprum . the son ; non immeritò in numerum peccantium refertur , quae pudicitiam timori praestitit , non sibi : and in another place , of crimes in general ; omnia scelera etiam ante effectum operis , quantum culpae satis est , perfecta sunt . so typhoninus the lawyer affirms , that a man is call'd an adulterer ex animi propositione sola , though he hath never actually corrupted any mother of a family . so also porphyry ( de abstinentia lib. . ) postquam factis abstinueris , abstinendum & motibus , ac maximè ipsis animi morbis . quid enim prodest factis absistere , si causis unde ea proeedunt astrictus maneas . these philosophers then saw farther into the nature of concupiscence , and required greater purity of mind , than the iewish masters that were in our saviour's time , and a little before and after ; who finding in the mosaic law no penalty ordain'd for thoughts and desires of interverting the wife or goods and possessions of another man , therefore deny that any sin is committed by the will alone , without any overt act , unless in the case of worshipping false gods , because to such thoughts , counsel , and purpose , a penalty was assign'd , and to no other . and that this was the judgment of most rabbins , abenesdras noteth at the beginning of the decalogue : and iosephus certainly was of the same , when treating of the sacrilege designed by antiochus , he said ; non erat paenae obnoxium consilium sine effectu . nor would st. paul , educated under such masters , have believed otherwise , had not a more exact and more spiritual consideration of the law convinced him , and brought him to write ( romans . . ) that the law being spiritual , makes concupiscence in thought , though it proceed no farther , sinful . but what shall we christians say of what our saviour prescribes to us in the gospel of st. matthew ( . ) that this law , which we now consider , was thereby only vindicated from an erroneous interpretation ; or that somewhat was aded unto it ? the latter is more probable ; viz. that christ prohibited not only a firm purpose and design to gratifie our lusts , but also the assent or yielding to the motions of them ; which he commands us to suppress and extinguish so soon as they are felt and perceived within us , and to avoid all occasions that may foment them , which he teacheth very significantly , though in parable , by the casting away of hand , eye , and foot , i. e. by the loss of those things that are dear to us . nor content to have taught this purer doctrine , he addeth a more grievous penalty to offenders , than any found in the old law , namely that of hell ; whereas for such delicts the law of moses prescribes no punishment at all , as the masters rightly observe . certainly the ancient christians held , that in the gospel somewhat more perfect is exacted , than what the law expressly treats of . witness tertullian . nos ergo soli innocentes ? quid mirum , si necesse est ? enimvero necesse est : innocentiam à deo edocti , & perfectè eam novimus , ut à perfecto magistro revelatam ; & fideliter custodimus , ut ab incontemptibili dispectore mandatam . let us for example take that precept of not lusting after a woman , which the ancients thus explicate . iustin writing to zena and serenus , saith that [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] the first fume of this appetite is interdicted by christ. athenagoras saith ; we are so far from thinking such things indifferent , that it is not permitted to us to look upon a woman with desire . tertullian ( de velandis virginibus ) a christian beholds a woman with safe eyes : in mind he is blind toward lust . and minutius ; ye punish wicked acts ; to us , but to think an ill thought , is to sin . this more refined precept deliver'd by christ , with some other of like perfection , seem'd so new , and so heavy withal to the iews , that tryphon , the most learned and eloquent among them , doubted not to say to iustin ; your precepts in the evangel i know to be so great and admirable , that no man is i think , able to observe them : not considering what had been taught by christ ( matth. . . ) with men this is impossible ; to god all things are possible . namely christ hath obtain'd for those that believe in him , a more certain faith of eternal life , and a spirit much greater , than had ever before been given to men : and then by his sufferings upon the cross he gave us an example most absolute ; and that nothing is so hard at first , which may not by exercise and a willing mind be made easy and familiar ; as most of the fathers have noted upon that in st. matthew ( . . ) by this custom of repugning it comes to pass , that those lustful motions by degrees subdued , dare no more rise up within us . this is that noble and glorious victory by faith , of which st. iohn speaks in his epistle . c. . v. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : nor his field , nor his man-servant , nor his maid-servant , nor his ox , nor his ass , nor any beast of his , nor any thing that is thy neighbours . nor his field , hath crept hither from deuteronomy ; and , nor any beast of his , from the precept of the sabbath : for neither is found in the hebrew of this place . but these differences are of little moment . tertullian spake all in a word , when he said , alienum non concupisces , thou shall covet nothing that belongs to another ; not the least things ought to be excepted , lest by degrees men should go higher ; nor the greatest , because in such the virtue of justice is most resplendent . and aristotle being asked what was [ tò 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] iust , answered , as became the prince of philosophers , [ tò 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] non concupiscere aliena ; in which all moral precepts are reduced to one . chap. xii . evangelick precepts conferr'd with those of the decalogue . it was wisely observ'd by philo , that the masters of his nation were wont to referr to these ten precepts of the decalogue , which we have endeavor'd briefly to explicate , whatsoever was contained in the whole law of moses : not that all the mosaic institutes were comprehended in the words of the ten commandments , but that these all pertain to certain kinds of actions , to which the rest may be , for help of the memory , referr'd ; as all things are by philosophers referr'd to ten categories or predicaments , for more facility of teaching . this very thing have the christians also done , referring all evangelic precepts to their respective places in the decalogue : but they have done it much more fully and perfectly , as being both endowed with a greater spirit , and obliged by their most noble faith and profession to exercise sublimer virtues . thus to the first head , which is [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] of gods vnity and single government , they congruously refer , not only all those doctrines of the gospel that forbid the least shew or appearance of worship exhibited to false gods , deliver'd in acts . . and . in corinth . . . in iohn . . and particularly expounded by tertullian ( in apologetico ) and the ancient canons : but also those that command the vnity of the church most strictly to be observ'd , taught in iohn . . and . in corinth . . . and . . . . and . and in ephes. . . to the second , which interdicteth idols or images , they refer all the evangelic ; precepts by which we are prohibited to addict our selves to , or fix our affections upon things subject to sense , so as to prefer them before , or equal them to god : such as are given in matth. . . in ephes. . . in coloss. . . in philip. . . and in romans . . of which argument we may read excellent things in st. chrysostom , upon the fifth chapter of the epistle to the ephesians . to the third , of not swearing or vowing by gods holy name in vain , they refer whatever we are taught in the new testament concerning the great reverence due to the divine name , in matth. . . so great , that out of respect thereunto we ought to abstain from all swearing , unless in matters highly pertaining to the honor of god ; as in matth. . . and iames . . to the fourth , of keeping holy the sabbath , they refer the christians certain hope of a most tranquil and happy life to come , assured by that in hebrews . from the first verse to the th . whereof a certain tast is in the mean time given in that peace of conscience which st. paul so justly preferrs to all other enjoyments in this transitory life , when ( romans . , . ) he saith , being justified by faith , we have peace with god , &c. to the fifth , commanding honour to be given to parents , the christians refer all the evangelical mandates of giving civil honour and obedience , within the limits of divine commands , to kings and governours , and all that are put in authority under them . such are given in rom. . from verse . to . in tim. . , , and . in pet. . . of obedience to masters , in ephes. . . and coloss. . . of honour and obedience to husbands , in corinth . . . coloss. . . in pet. . , and . in tim. . . in tit. . . also to pastors or ministers of the gospel , in tim. . . in hebr. . . and in pet. . . and to others of eminent quality , in rom. . , and . to the sixth , by which adultery is prohibited , are accounted the evangelic interdicts against all sorts of unnatural lusts , all scortation or whoring , all uncleanness and polution venereal of whatsoever kind or degree : such as are promulged in st. matth. . . in mark . . in acts . . in rom. . . in cor. . . and cor. . . in gal. . . in ephes. . . in coloss. . . in thess. . . and thess. . . also all divorces , unless in the case of adultery , as in matth. . . and . . to the seventh , interdicting homicide , are referr'd all animosities , anger , hatred , and malice , the seeds of fights and murders , condemned and forbidden in matth. . . , , . and the following comma's ; in eph. . . in coloss. . . in tim. . . in iames . . in ep. of iohn . . and in other places of the new-testament . to the eighth , against theft , are reduced those most equitable precepts by which christians are , not only forbidden to infer any damage , loss or detriment upon others , but obliged on the contrary to do good to all men , even to their enemies , to the best of their faculties and power . such we find in matth. . . in luke . . in cor. . . and . in cor. . . in coloss. . . in ephes. . in pet. . . in rom. . . in galat. . . in thess. . . under the ninth by which it is made criminal to give a false testimony , are listed the precepts by which we are commanded to shun all falshood , lying , and deceit in speech , and to be highly studious of veracity and faith in all conversation , and transactions . such are recorded in iohn . . ephes. . , , . iohn . . coloss. . . rom. . . tim. . . cor. . . the last prohibiting concupiscence , is by christians so far extended , as that no permission is to be indulged to the motions of the mind that sead to unlawful counsels , designs and actions ; but that they ought to be checkt and extinguished , so soon as we perceive them to arise within us , as appears both from the places already cited in th . art. of the chapt. next precedent , and in mark . . gal. . . pet. . . and this mortification of our sensual appetites , is what the holy scripture intends by crucifying , killing , and putting off the old man ; in coloss. . . and . rom. . . ephes. , . and what lactantius ( l. . c. . ) adviseth when he saith , priùs tamen quàm commotio illa prosiliat ad nocendum , quoad fieri potest maturius sopiatur . the three allurements of these sensual motions are , pleasure , pride , riches ; in the judgment of st. iohn ( epist. . , and . ) to whom philo consenting , deduceth all sins and mischiefs [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] from one fountain , viz. the desire either of money , or of honour , or of pleasure . to conclude ; the sum of all the hitherto . recited precepts , of the mosaic somewhat more obscurely indeed , and with many shadows intermixt ; but of the evangelical most openly and brightly , is no more but this , that god be loved above all things , and that every man be loved as our selves . this is the sole scope , as of the law and the prophets , so also of the gospel . witness psal. . esai . . . mich. . . matth. . , , , . mark . , . luke . . rom. . , , , and . cor. . . and . . gal. . . tim. . . pet. . . iam. . . iohn . . and . . and . , , . and . . . by this love faith is [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] operating , gal. . . [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] and perfect , iam. . . without it , and the works thereof , it is a dead faith , iam. . . this love therefore let us pray to god to give unto , and increase in us , for his sons sake , by the holy spirit . amen . from this harmony of the mosaic and evangelic laws , i might take occasion to enquire also into the things in which these differ from and excel those ; and thence to shew , how incomparably more noble in it self , and more agreeable to the spiritual nature and proper affections of a rational soul , the christian religion is , than the iudaic , or any other hitherto known in the world. which would not be difficult to me to do , since various arguments offer themselves to every considering man , from the excellency of the reward by god himself promised and infallibly assured to all true and sincere professors of christianism , viz. eternal life and immutable felicity after a joyful resurrection : from the singular sanctity of its doctrine and precepts , as well concerning the true and most congruous worship of god in spirit , and from pure love , as concerning all the offices of humanity due from us to our neighbour , though our enemy ; the mortification of all sensual lusts and unjust desires , nay the contempt of all temporal goods in comparison with eternal ; from the divine virtues , inculpable life , miraculous works , patient sufferings , and certain resurrection of christ the author of it : and in fine , - from the wonderful propagation thereof , whether we consider the infirmity , simplicity , and obscurity of the men that in the first times taught and diffus'd it , or the mighty impediments that retracted their hearers from embracing , or deterr'd them from professing it . from all these heads i might ( i say ) fully evince the excellency of our religion . but because this matter is alien from my present theme , and principally because the same hath been already treated by many others of much greater ability than i can pretend unto , more professedly with philosophic subtility by raimundus de sebunde , with variety of dialogues by ludovicus vives , with solid erudition and charming eloquence by mornaeus , and with inimitable gravity of judgment by grotius : therefore i restrain my unworthy pen from profaning a verity so sacred , and as well from its own splendor as from the light it hath receiv'd from those illustrious writers , so conspicuous ; and acquiesce in the full persuasion thereof , wishing equal conviction of mind to all mankind . appendix . a short history of the iews talmvd . collected out of josephus , philo judaeus , bishop walton's prolegomena ad biblia polyglotta , the chronicus canon of sir john marsham , &c. having in the precedent shadow of a book often cited the talmvd or pandects of the iews ; and now presuming it to be possible , that those papers , of how little value soever in themselves , and however secretly kept by me in my life time , may yet , after my death , come into the hands of some men , who are not perhaps so conversant in those greek and latine authors who have written of the civil and canonical laws , and traditions of that nation , as to know from what original , of what antiquity , and of how great authority among them that talmud is : therefore i am inclin'd to hope , that the more learned will not condemn me , either of vanity or impertinence ; if for information of the less learned , i here add a brief history thereof , not without somewhat of diligence and labour , collected from writers of excellent erudition and undoubted faith. after the macedonians had spread their victorious arms over the east , and the hasmoneans with equally successful courage asserted the liberty of their country ; there arose out of the school of antigonus sochaeus two mighty sects among the iews : the pharisees , so call'd from their separation ; and the sadduces , who deriv'd their name from sadocus their head and ring-leader . the former deliver'd to the people , many precepts receiv'd by tradition from their ancestors , which were not written in the pentateuch among the laws of moses ; the latter directly opposing the admission and sanction of those traditions , maintain'd that the precepts recorded in the books ascrib'd to their legislator moses , were all of sacred authority , and therefore to be diligently observ'd ; but those taught by the pharisees , from tradition only by word of mouth , were not obliging ; as iosephus relates ( antiquit. l. . c. . ) from this division of the disciples of antigonus , in a short time it came to pass , that the whole nation of the iews also was divided into sects ; of which there is no memory in any of their monuments , before the government of ionathan , who succeeded his brother iudas machabaeus , ( whose history we have in the books of the maccabees ) in the year of nabonassar . and of the iulian period . at which time , as the same iosephus commemorates ( antiquit. l. . c. . ) there grew up three sects or heresies of the iews , which delivered divers doctrines , not of religious duties , but of human affairs , principally de fato ; one , of the pharisees ; a second , of the sadduces ; a third of the essens , who lived an active life , different from the others . so philo ( de vita contemplativa ) distinguishes them from the theoretics , whom he call's 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 : and so photius ( in bibliothec. n. . ) interpreting philo , saith ; lectae sunt philosophantium apud iudaeos vivendi rationes , & contemplativa , & activa : quorum hi esseni , illi therapeut ae appellantur . these esseni [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] denominated from their sanctity , retiring from the noise and crowds of populous cities into solitary villages , affected solitude ; gens sola , sine ulla faemina , sine pecunia , socia palmarum , &c. no wonder then , if all the four evangelists be silent concerning them , since they lived strangers ; and unknown even to the inhabitants of ierusalem , nor is any mention of them to be found in the writings of any rabbins before zacuthius , a late writer , and living in the year of our lord . but the pharisees , and their antagonists the sadduces made a great bustle and noise in the court of ierusalem where they lived in mutual emulation , drawing mighty parties after them : the rich for the most part patronizing the sadduces , and the common people adhering to the pharisees ; as we read in iosephus ( antiquit . l. . c. . ) and in truth those [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] unwritten traditions asserted by the pharisees , grew more and more authentic in the schools , were openly taught by the rabbins by word of mouth to their disciples , and studiously propagated as sacred verities ; but not published in writing . yet at length , after the city of ierusalem had been sack'd and demolish'd by titus , and repair'd by hadrian in such sort , that the poor iews retain'd neither their name , nor nation , nor religion ; while by the sedition of one barchocebas , almost all iudea was reduced to a desert , as xiphili● ( in vita hadriani ) reports ; and while the iews were dispers'd , and in exile , prohibited to set a foot upon their native soil ; and the schools that had been design'd to promote the pharisaic discipline failed ; one rabbi iehuda , whom they call hakadosh , i. e. the saint , with vast labour collecting all the traditions , judgments , opinions , and expositions , that the synagogues of all ages precedent had deliver'd upon the whole law ; composed of them the book of the mishna , and read it publickly . and this he did , lest the traditions of their ancestors might otherwise be lost and forgotten . he lived under the three antonins , pius , marcus , and commodus , and finished this syntagm of the mishna , in the reign of the last , and ( as de gantz computes ) in the year . from the destruction of the temple , but of the christian aera . this mishna is their [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] second law , so call'd to distinguish it from the first , which was written . of christian writers , the first that remembers this book of the mishna , seems to be the emperor iustinian ( a greater collector of ancient , but civil laws and constitutions ) who in the year of christ . gave leave to the iews to read the holy scriptures publickly in their synagogues ; but interdicted the like use of the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or second edition of their law , the mishna , as neither conjoyn'd to the pentateuch , nor deliver'd down from the old prophets , but invented by men that had nothing of the divine spirit in them : as appears from novel . pag. . but since neither origen , nor epiphanius , nor st. ierom ( who all make mention frequently of the judaic traditions ) takes notice of any such book as the mishna ; and since st. austin ( contra adversarios legis & prophetarum l. . c. . ) saith expressly , habere , praeter scripturas legitimas et propheticas , iudaeos quasdam traditiones suas , quas non scriptas habent , sed memoriter tenent , et alter in alterum loquendo transfundit , quam 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vocant : it seems probable , that the mishna was , either not written , or at least not well known in the world , in the year of christ . as the modern rabbins would have it to have been . among these maimonides ( in praefat . ad mishnam ) affirms , that about years from the destruction of the temple , rabbi iochanan , head of a synagogue in palestin added the gemara [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] or complement , call'd the ierusalem gemara . which joyned with the mishna of iudas , makes the ierusalem talmud . and this maimonides well deserves our belief . for his extraordinary wisdom and learning are to this day so much admired by the iews , that they commonly say of him . à mose usque ad mosem nequaquam fuisse hactenus talem mosem : and mr. selden ( de diis syris syntagmate cap. . ) prefers him to all other rabbins , saying , primus rabbinorum fuit , qui delirare desiit . the iews at length passing from the subjection of the romans to that of the persians , about years after , rabbi ase in the land of babylon composed another gemara or complement of the mishna ; which from thence was denominated the babylonic gemara , and which contains many ridiculous fictions , and fables incredible . and this , with the mishna , makes the babylonian talmud , which is now most in use ; nay doctrinal to all the iews , as if all their discipline , all law both divine and human were therein comprehended : in which notwithstanding the sadduces are never remember'd , but under the name of hereticks or epicureans . in the mishna if self were contain'd , not only the judgments , ordinances and decrees of all precedent consistories , but also a collection of all the traditions which they call the law oral , and pretend to have been originally receiv'd from the mouth of moses himself . and to give more credit and authority to these traditional precepts , rabbi eliezar ( in pirke cap. . editionis vorstianae pag. . ) tells us , that during the days absence of moses on the mount , he spent the days in reading the scripture , and the nights in composing the mishna : and in the babylonic gemara is a formal story of the very manner ( forsooth ) how moses communicated and explain'd the oral law to aaron and his sons and the elders . the elders ( saith the pirke aboth , i. e. capitula patrum , a talmudic treatise ) deliver'd the same to the prophets , and the prophets to the men of the great synagogue , and they again handed it down to their successors . but these things being too compendiously spoken , to evince the succession through so many ages , the more recent rabbins have put their wit upon the rack to explicate the matter more particularly . after the finishing of the talmud , for an age or two , there is nothing but thick darkness in the histories of the iews : but then they being expulsed out of babylon , and their schools left empty and desolate , about the year of our lord . a great part of the rabbins and people came for refuge into europe , and chiefly into spain : there appearing to us no memorials of european iews before that time . since that , innumerable rabbins men of great learning & skill in all sciences , nor addicting themselves and studies to the extravagant and absurd dreams of the talmud , as their predecessors had done ; have written copiously : and the succession of the cabbala hath been sought for in the east . rabbi moses ben maimon , vulgarly maimonides and rambam , born at corduba , in the year of christ . died at the age of . after he had written commentaries upon the mishna ; in the preface to which he gives a long series or list of those who had propagated the oral law successively . which yet appearing imperfect and interrupt to rabbi abraham zacuth of salamanca , who wrote iuchasiin in the year of christ . he and his contemporany don isaac abarbinel an exiled spaniard , and after them , david ganz ( who brought his chronology down to the year of christ . in his book entitled tzemach or germen davidis ) found , or made that catalogue of the propagators of the traditional law more perfect and continued . herein zacuth indeed follow'd maimonides ; and ganz trod in the steps of abarbinel : but guitiel . vorstius ( in observat . in ganz , pag. . ) comparing these successions each with the other ; from the diversity of computation from the interruption and gaping conjunction thereof , argues the catalogue to be plainly fictitious . there are nevertheless even among our christian divines some , who lay hold upon that continuation of traditions , and use it to serve their turn : how prudently , let others judge . for i have not undertaken curiously to examine that series and the nine classes of iewish doctors : contenting my self at present with these few collections concerning the original and antiquity of the talmud . finis . books printed for walter kettilby , at the bishop's head in st. paul's church-yard . h. mori opera theologica , & philosophica , fol. three vol. dr. more 's reply to the answer to his antidote against idolatry . with his appendix . octavio . — remarques on judge ▪ hales , of fluid bodies , &c. octavo . — exposition on the apocalyps . quarto . — exposition on daniel . quarto . — confutation of astrology , against butler . quarto . dr. sherlock's discourse of the knowledge of jesus christ. with his defence . octavo . — answer to danson . quarto . — account of ferguson's common-place-book . quarto . dr. falkener's libertas ecclesiastica . octavo . — christian loyalty . octavo . — vindication of liturgies . octavo . dr. fowler 's libertas evangelica . octavo . mr. scot's christian life . octavo . dr. worthington's great duty of self-resignation . octavo . dr. smith's pourtraict of old age. octavo . mr. kidder's discourse of christian fortitude . oct. mr. allen's discourse of divine assistance . octavo . — christian justification stated . octavo . — against ferguson , of justification . octav. — perswasive to peace and unity . with a large preface . octavo . — preface to the perswasive . alone . octav. — against the quakers . octavo . — mystery of iniquity unfolded against the papists . octavo . — serious and friendly address to the nonconformists . octavo . — practical discourse of humility . octavo . mr. lamb's stop to the course of separation . octa. — fresh suit against independency . octavo . mr. hotchkis discourse of the imputation of christs righteousness to us , and our sins to him . in two parts . octavo . mr. long 's history of the donatists . octavo . — character of a separatist . octavo . — against hales , of schism . with mr. baxter's arguments for conformity . octavo . — non-conformists plea for peace , impleaded against mr. baxter . octavo . dr. grove's vindication of the conforming clergy . quarto . — defence of the church , and clergy of england . quarto . — defensio suae responsionis ad nuperum libellum , qui inscribitur celeusma , &c. in quarto . — responsio ad celeusma , &c. quarto . the spirit of popery speaking out of the mouths of fanatical protestants . fol. dr. hicks's sermon at the act at oxford . quarto . — before the lord mayor . peculium dei. quarto . — notion of persecution . quarto . dr. hicks , sermon before the lord mayor , ian. . at bow-church . . dr. sharp's sermon before the lord mayor . quarto . — sermon at the spittle , & york-shire feast . quar. — sermon before the house of commons . april . . — at the election of the lord mayor . . dr. william smith's unjust mans doom , and discourse of partial conformity . octavo . — two assize sermons . octavo . — two sermons , on the d. of may , & th . of may. — lent sermon . quarto . dr. thorp's sermon before the lord mayor . quarto . dr. woodrof's sermon before the lord mayor . quarto . mr. williams's sermon before the l. mayor . quarto . — christianity abused by the church of rome , and popery shewed to be a corruption of it : being an answer to a late printed paper given about by papists . in a letter to a gentleman . quarto . remarks on the growth and progress of nonconformity quarto . baxters vindication of the church of england in her rites and ceremonies , discipline and church orders . mr. lynford's sermon . quarto . mr. bryan turner's sermon . testimonium iesu. quarto . mr. iohn turner's sermon of transubstantiation . quarto . dr. butler's sermon before the king at windsor . mr. lamb's sermon before the king at windsor . mr. brown's visitation sermon . quarto . dr. fowler 's sermon at the assizes at gloucester . quarto . mr. cutlove's two assize sermons at st. edmunds-bury . quarto . mr. inet's sermon at the assizes at warwick . quar. mr. edward sermon 's sermon before the l. mayor . mr. resbury's sermon before the charter-house scholars . quarto . — sermon at the funeral of sir allen broderick . mr. needham's six sermons at cambridge . octavo . dr. eachard's dialogue against hobbs . d. part. mr. hallywel's discourse of the excellency of christianity . octavo . — true and lively representation of popery : shewing that popery is only new-modelled paganism . quarto . — account of familism against the quakers . — sacred method of saving humane souls by jesus christ. — discourse of the polity , and kingdom of darkness . octavo . dr. goodall's vindication of the colledge of physicians . octavo . mr. l' emery's course of chymistry . with the appendix . dr. grew's anatomy of trunks . with nineteen copper plates . octavo . d. sydenhami observationes de morbis acutis . octav. — epistolae duae de morbis epidemicis , & de lue venerea . octav. — dissertatio epistolaris de variolis , nenon de affectione hysterica & de hypochondriaca . octavo . lossii observationes medicae . octavo . mayow tractatus . . e. med. de sal. nitro . &c. octav. burnetii telluris theoria sacra de diluvio & paradise . quarto . spenseri dissertat . de urim , & thummium . octavo . speed epigrammata iuvenilia . encomia , seria , satyrae & iocosa . octavo . lord bacon's essays octavo . gage's survey of the west-indies . mr. claget's reply to the mischief of impositions . in answer to dr. stillingfleet's sermon . quarto . the true english-man humbly proposing something to rid us of the plot in the state , and contentions in the church . quarto . a perswasive to reformation and union , as the best security against the designs of our popish enemies . quarto . the roman wonder : being truth confest by papists , &c. being the jesuits morals condemned . fol. essex free-holders behaviour , &c. folio . two sheets . the country club , a poem . quarto . amyraldus discourse of divine dreams . octavo . dr. arden's directions about the matter and stile of sermons . twelves . protestant loyalty fairly drawn . in answer to a dialogue at oxford between a tutor and pupil , &c. and an impartial account of the late addresses , &c. quarto . mr. tho. smith's sermon concerning the doctrine , unity , and profession of the christian faith. preached before the university of oxford . with an appendix concerning the apostles creed . quarto . . mr. lamb's sermon before the lord mayor , feb. . . dr. calamy's , sermon preached before the lord mayor , aldermen and citizens of london , at bow-church on the . of may. . prosecution no persecution : or , the difference between suffering for disobedience and faction , in a sermon upon phil. . . preached at bury st. edmunds in suffolk , on the . of march , . by nath. bisbie . d. d. notes, typically marginal, from the original text notes for div a -e article . . right defined , and . distinguished into preceptive and concessive . . what is right natural , and what divine . . what is right positive or civil . . civil right either peculiar to one nation , or common to many nations . . right common to many nations subdivided into imperative and intervenient . . right distinguish'd from law. . natural right , and . natural law defined . . that all the laws of nature are the laws of god. . god's right to the absolute monarchy of the world. . his dominion over men natural , and civil . . the stability of his positive divine laws given to the iews ; and universal extent of the same . . the difference betwixt law natural & positive divine , as to their obligation . . the importance of the premisses , & design of the subsequent discourse . . the method and heads of the same . article . three preliminaries concerning these precepts . , various opinions of the rabbines concerning the number of these precepts . article : what was understood to be extraneous worship by the egyptians ; and what by the hebrews . . that the interdict of idolatry given to the hebrews , seems to have respect to the manifold idolatry of the egyptians . . egyptian polytheism , contagious to the hebrews ; and therefore obviated by one general interdict . . the setting up of pillars , statues , &c. why forbidden by moses to the hebrews ; tho' not unlawful to the stranger , unless used to idolatry . . the mosaic law concerning idols , explicated . article . blasphemy forbidden among the egyptians , . what was blasphemy to the hebrews . . blasphemy and idolatry , equal crimes and always to be punished by excision . arti. . homicide prohibited to the egyptians and other gentiles , by law natural : and after to the israelites , by the mosaic . . exposing of infants , and procuring of abortion also interdicted . . punishment of wilful murder in the common-wealth of the hebrews . . right of asyle , in casual homicide . . how far an aggressor was to be resisted by a by-stander , in defence of the assaulted . . homicide , in what cases permited , and whence arose the right of zealots . . that the law de anathemate gave the hebrews no right to devote their children or servants to death : and therefore that the daughter of iephtha was made , not a victim , but a nun. . incest , adultery sodomy , and bestiality , interdicted by the law of nature . . before the mosaic law , marriage of the brother with the germane , not with the uterine sister , permitted : & why . . lacedemonian law permitting marriage with uterine sisters , not with germane . . marriage with both uterine and germane sister , lawful among the egyptiane , . and persians . . marriages interdicted to the israelites . . the right of marrying with the brothers widow , most ancient , and confirm'd by moses . . the same used by the egyptians . . the hebrew women unmarried , free to humble themselves to whom they pleased before the law. . the right of divorce instituted by moses . . polygamy permitted to the hebrews both before and after the law. . the hebrews not permitted to lie , or marry with gentiles not proselytes . . eunuchs & bastards excluded from matrimony with israelites . . the right of proselytes and libertines . . the maid-servant not permitted to marry , before she was made absolutely free by redemption or manumission : . nor the man-servant ; until the christians gave them jus conjugii . article . theft interdicted among the egyptians , whose singular law concerning robbery is recited . . theft , of what kind soever , forbidden also to the sons of noah , by law natural : and . by the mosaic , to the hebrews . . fraudulent removing of ancient land-marks , theft . . punishment of various frauds among the egyptians . . all fraud , even in words , unlawful to the hebrews . . the difference betwixt the right of an hebrew , and of a gentile , as to pilfering things of small value . . satisfaction for damage , always to be made , by the mosaic law ; and to whom . . the law of restoring things lost , explicated . . an unequal price , unlawful . . punishment of theft capital , not from the law of the hebrews , but from that given to the sons of noah . : the mosaic interdict of theft deduced from law natural . . vsury unlawful to the hebrews among themselves ; lawful to the gentiles . . gain from games , unlawful to an hebrew . artic. . the administration of justice by iudges , prescribed , first by natural law , & after by the mosaic . . courts iuridical not constituted before moses . . the contrary not evident from the traditions of the rabbins ; nor from the scripture . . nor from the example of simeon and levi , and of iudah in the cause of thamar . . the right of a gentile in the common-wealth of the hebrews , as to judgments in foro . article . eating of blood interdicted , first to noah , and after to the israelites . . the reason of this interdict . . the law against eating of any thing that died of it self , and of any member torn off from an animal alive : and the reason thereof . . examples of such cruelty & carnage in bacchanals . article . the mosaic law , of all written laws the most ancient . . moses , the wisest of all law-givers . . the writers design & method in the e●suing explication of the decalogue . . why god is here call'd the lord. . that the law was given , not immediately by god himself , but by an angel in the name of god. . why the angel that pronounced the law , said , i am the lord , &c. . why the writer of the law saith , all these words . . god's peculiar right to the title of supream lord of the israelites . . the preface to a law ought to be brief and full of authority . . why god , in these precept , chose the number ten. . why the law was given in the wilderness . . why it is here said , thy , in the singular number . article . why it is here said , other gods beside me . . gods distinguish'd into two classes . . the celestial luminaries , the first false gods. . kings and queens deified after death , the second false gods. . whence it was that brutes came to be worship'd as gods. . honor due to good angels , and what . . signs of honour proper to god , not to be exhibited to good angels . . civil veneration of kings , not unlawful . . extirpation of polytheism , the principal design of this precept . . the unity of god , manifest by the light of nature . article . in what sense the word idol is always used in holy scripture . . that idolatry was founded upon an opinion that images magically consecrate were animated by daemons , and therefore vocal . . teraphim used chiefly for divination . . teraphim , how made & . of what materials . what were the silver shrines of diana of the ephesians . . why graven images of animals were by god interdicted to the hebrews . . that god reserv'd to himself a right of exception to this law ; from the instances of the cherubims and of the brazen serpent erected by his command . . images of the stars , also interdicted by this precept ; and that to prevent polytheism . & . to admonish men , that the invisible god cannot be represented by images . . what pictures fall under this interdict . . that the christians have not thought themselves indeterminately obliged by this law. . what is here signified by adoration of images . . different opinions of christians about honour exhibited to saints before their images & pictures . . the true sense of the word idolatry . . private men among christians ought not to pull down idols * . that god revenges idolatry only to the third and fourth generation : and that by delivering up the posterity of idolaters into miserable servitude . . who are properly said to hate god. . why god is here said to shew mercy unto thousands . . who are by god call'd pious , and who righteous men. article . why it is here said , the name of the lord , not my name . * . perjury interdicted chiefly by this precept : and . threatned to be severely punish'd by god himself . . the sanctity of an oath . . why god threatneth to revenge perjury by punishments inflicted by himself . article . the precept of keeping holy the sabbath , distinguish'd from the precept of resting from labour upon the sabbath ; as by the causes , so also by the times . . the different interpretations of grotius and selden , of the word remember , reconciled . . testimonies of the sabbath observ'd anciently by gentiles also . . why the primitive christians held their assemblies upon the sabbath day . the lords day not surrogated into the place of the sabbath . . why the greeks and latins use the word sabbata , not sabbatum . . labour upon six days of the week , not commanded , but only permitted . . why god fixed the sabbath upon the seventh day . . why he by many words inculcated this precept . . who are to be understood here by thy son and thy daughter . . humanity of masters towards servants here intimated . . some goodness and mercy to be exercised also toward brutes , by this precept . . who is here meant by the stranger that is within thy gates . * . why the stranger was by this law obliged to abstain from labour upon the sabbath . . why god made the universe in six days . . what is to be understood by his resting upon the seventh day , * . how the true seventh or sabbatical day was first made known to the hebrews . . the honour of the number seven , deriv'd from the aegyptian mathematicians . . the septenary number of days observ'd by gentiles in their feasts . the number seven of solemn respect in the mosaic rites & in other mysteries . . the weekly circle of days , deriv'd by the aegyptian astrologers from the seven planets . . bede's reason why in the planetary denomination of the seven days of the week , the natural order of the planets was not observ'd . . why saturn was made lord of the seventh day . . the antiquity of the planetary denomination of the seven days : and conclusion of this chapter . article . that this precept was anciently observed by the egyptians , the pythagoreans , and . the athenians . . honour and reverence given by the egyptians even to the dead bodies of their parents . . other nations also honour'd parents . . excellency and usefulness of this law. . the right of mothers to honour and reverence from their children . . children by this law obliged to relieve their parents in want . . longaevity , the reward of filial reverence . . the penalty added to this law. article . . murder a crime against god , nature , and civil laws . . exempts from this law. article . . theft , injurious to private men , and hurtful to the public . * . the necessity and utility of this interdict . . theft of a man , capital among the hebrews . article . who is here to be understood by neighbour . . the form of adjuration used by the hebrew judges to witnesses and to the accused . . false testimony , a hainous crime . . the punishment of a false witness among the hebrews . article . what is here meant by concupiscence , according to the interpretation of the hebrew masters . . acts indirectly tending to the gratification of lusts , interdicted by this precept . . as also the simple purpose to fulfil them . . concupiscence without effect , no sin , according to the judgment of the rabbins . . but condemn'd by the christians , who are obliged to purity of mind . . not to covet any thing that belongs to another , the sum of all moral precepts . the heads of the judges arguments for the deceased duke of norfolk, in the case between him and his brother mr. charles howard, with some observations on the lord chancellor nottingham's arguments. england and wales. court of chancery. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing h estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the heads of the judges arguments for the deceased duke of norfolk, in the case between him and his brother mr. charles howard, with some observations on the lord chancellor nottingham's arguments. england and wales. court of chancery. nottingham, heneage finch, earl of, - . howard, charles, d. . norfolk, henry howard, duke of, - . sheet ([ ] p.) s.n., [london : ] imprint from wing. reproduction of the original at the british library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng future interests -- england -- early works to . remainders (estates) -- england -- early works to . law -- england -- early works to . estates (law) -- england -- cases -- early works to . - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion the heads of the judges arguments for the deceased duke of norfolk , in the case between him and his brother mr. charles howard , with some observations on the lord chancellor nottingham's arguments . the judges all agreed that the limitation to charles howard was a void limitation of the trust ; and that the bill ought to be dismissed , grounding their opinions on the following reasons . . all the trust of the whole term was vested in henry by the limitation of it to him and the heirs males of his body , which in law is a disposition of the whole interest : such a trust being indeed greater in its nature , than a term of years is capable of , in regard it cannot go to heirs males , but therefore hath been often resolved to contain the whole interest . and where a term for years is under such a limitation that will admit no remainder , there can be no contingent remainder limited of such a term ; and to make that limitation which could not be effectual by the rules of law , as a remainder to take effect by calling it a springing use , is but a quibble too light to have the countenance of the law. . it 's contrary to the rules of law , to limit an interest either in law or equity of a term , to take effect after any ones dying without issue of his body , and of a dangerous consequence ; for it would tend to make perpetuities and fetter estates : inasmuch as it is allowed of all hands , that if there can be such a limitation by law , allowed after a dying without issue male , there is no possibility of docking or destroying the interests that are under such limitations ; so that such estates can never be sold or parted with , no recoveries reaching them , nor no method in the law nor possibility to do it , which would make estates stagnate in a family , and discourage all ingenuity and industry , which the law perfectly abhors — and this the lord chancellor allows in his arguments in this case in his third conclusion . and it mends not the matter , to say that this is under a limitation of thomas his dying without issue in the life of henry ; for . this is a stretch farther than ever before was endeavoured , the judges have gone as far as is fit in indulging mens dispositions of terms to take effects by limitations after lives — if this limitation should be admitted ( if thomas dye without issue in the life of henry , then the next strain would be to limit a term over upon ones dying without issue during the lives of two or three , and then of twenty men : and then if he should dye without issue within seven years , for that is equal to a life , and then within twenty years , then why not within a hundred years , and then why not within a thousand , or during the term , &c. for all these are less interests in the eye of the law , than a freehold , and where should we end or stop ; for it must be confessed that there is the same reason for all these , as it was by experience found upon the judgment of mathew manning's case , when it was once allowed that a term for years might be limited to one , and if he died within the term then to another ; it was soon found that there was the same reason to allow a limitation of it after two as twenty lives , which hath been the occasion of fettering estates exceedingly by such limitations of terms to take effect after lives , and made the judges often repine at that judgment , and declare that if it were now a new case , since they have seen the inconveniencies of it ) it would never have been so adjudged . so bridgeman in the case of grigg and hopkins . siderfin's report fo . . . it 's agreed on all hands that there is the same reason and ground of allowing limitations of terms for years at law , as there is for allowing limitations of trusts of terms for years in equity and no other : now there hath never been any judgment that the limitation of a term to one , after anothers dying without issue was good — it hath been often endeavoured , and ( if it could have gained the precedent of such a solemn resolution ) would no doubt of it , be too often practiced . but it hath always been disallowed , and many judgments against it — leventhorp and ashby pasc. car. . in b. reg. rolles . sanders and cornish rolles , . rolles . rep. cro. backhurst and bellinghams case . mod. rep. . and burgis case there reported . and child and bayley's case trin. . jac. rot. . in banc. reg. which is a judgment in the very point — william heath being possessed of a term for . years , by his will devised it to his wife , and afterwards to william his son , provided that if william his son should dye without issue of his body then living at the time of his death , then thomas his eldest son should have the term ; william did dye without issue , living thomas , yet thomas could not have the term , because the whole court of kings-bench adjudged that the limitation to thomas after the death of william without issue ( tho this contingent was confin'd to a life , as here it is ) was void , for the reason before mentioned . and this judgment afterwards affirmed in a writ of error in the exchequer chamber , by all the judges of the common pleas and barons of the exchequer , so that it was a solemn judgment of all the judges of england , and which alone were enough to rule the case in question . yet the lord chancellor decreed this limitation to charles to be a good limitation , and that he should hold the barony during the residue of the term , and have an account of the profits thereof from the death of duke thomas . declaring his reasons to be as followeth . . some men have no estates but terms of years ; and he that hath a term of years , hath as much right to dispose of it , as he that hath a fee-simple . . unless these words ( if thomas dye without issue in the life of henry ) have the effect of excepting this out of the common cases of limitting terms over upon ones dying without issue — the words are idle and of no effect . . this might have been done in another way ( viz. by making the first term to cease upon this contingency , and limitting a new one to charles ) and therefore shall be taken to be good this way . . that the meanness of a term for years or chattel interest , is not to be regarded in limitations of it . — it was at first disputed , whether it might be limited over , after a life , and some opinions against it : but that afterwards obtained ; and though the judges would not allow a limitation of it over after a dying without issue ; but he saw no reason why it might not be allowed after a dying without issue in such a ones life ; for that is but equal to a limitation after a life . then the lord chancellor seeks to evade the case of child and baylie , by making several distinctions between that and the case in question , which it's plain that he himself look'd upon but as frivolous , and saw there was no real difference between them ; and therefore to fortifie his own resolution , he is driven at last in plain downright terms to deny it to be law , calling it a single resolution , that never had any like it before or since . and he opposes to this resolution in child and baylie's case , two other cases ; the one of heath and cotton , ( which is nothing to the purpose , there being no limitation after a dying without issue , but only after a death ) the other of wood and sanders ; where a term is limited to the father for his life ; then to the mother for hers ; then if john survive his father and mother , to him ; and if he die in their lives , and leave issue , to his issue ; if he die without issue in their lives time , then to edward his brother ; he died in their lives time without issue , and holdeth that the limitation to edward was good . nevertheless the lord chancellor made such a decree , that charles should hold the land during the residue of the term ; urging further for his so doing , that it was the will of hen. frederick , father of the plaintiff and defendant , who was owner of the estate ; and therefore that it was equitable and just to decree that it should go accordingly ; not allowing that mens wills and intentions are to be bounded by the rules of law , and no farther to prevail , than the methods and rules of law warrant them . there being afterwards a bill of review brought upon this decree , before the now lord keeper ; and his lordship finding the said decree grounded upon great mistakes , and likely to be a ground it self of great inconveniency , did reverse the said decree , as being erroneous , and against law , and dismissed the said charles howard's bill . whereupon the appeal is now brought in the lords house . notes, typically marginal, from the original text notes for div a -e . note , the lord chancellor ( finding himself pincht with this reason , in his argument indeavours to answer it by saying , he would stop any where when he should find an inconvenience by allowing such a limitation , which is a poor evasion , and the judges conceived would be too late when it should have gained the countenance of such a solemn precedent and resolution , and conceived it more agreeable to the prudence and policy of the law , to prevent such inconveniences when foreseen , than to distinguish ones self out of them , or retract opinions by a ( non putarem . ) . note this is true , but it doth not follow that he may dispose them contrary to the rule of law. . note this hath no weight , for many words are oft inserted in settlements that are idle ; and operate nothing , and these are not the only words in this that are idle , for the lord chancellor allows here , that the limitation to edward and all after him are void . . this is so weak a reason , that it requires no answer . . this answered in the judges third reason supr . note , this case of child and bayly was adjudged by all the judges of england , first in the king's bench , and then in the exchequer chamber , and hath been approved and cited by many judges in many cases since , and made the ground of several judgments , and never denied for law , as in love and windham , and grigg and hopkins , and other cases , till now by the lord chancellor , being thus hard put to it to maintain this opinion of his . note , this touches not this case of the duke of norfolk , for there john never had any limitation took effect at all , for it was to commence upon condition , which never happened ; so it was all one , as if there had been no limitation at all . an act for turning the books of the lavv, and all proces and proceedings in courts of iustice, into english· public general acts. - - . england and wales. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing e ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing e estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) an act for turning the books of the lavv, and all proces and proceedings in courts of iustice, into english· public general acts. - - . england and wales. sheet ([ ] p.) printed by edward husband and john field, printers to the parliament of england, london : . with an order to print dated nov. [i.e. ]. caption title. last word of first line of text: "and"; first word of line below initial: "that"; last word of last full line on page: "of". reproduction of the original in the british library. eng courts -- law and legislation -- england -- early works to . law -- england -- early works to . a r (wing e ). civilwar no an act for turning the books of the lavv, and all proces and proceedings in courts of iustice, into english· england and wales a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - john pas sampled and proofread - john pas text and markup reviewed and edited - pfs batch review (qc) and xml conversion an act for turning the books of the law , and all proces and proceedings in courts of iustice , into english . the parliament have thought fit to declare and enact , and be it declared and enacted by this present parliament , and by the authority of the same , that all the report-books of the resolutions of iudges , and other books of the law of england , shall be translated into the english tongue : and that from and after the first day of january , one thousand six hundred and fifty , all report-books of the resolutions of iudges , and all other books of the law of england , which shall be printed , shall be in the english tongue onely . and be it further enacted by the authority aforesaid , that from and after the first return of easter term , which shall be in the year one thousand six hundred fifty and one , all writs , proces and returns thereof , and all pleadings , rules , orders , indictments , inquisitions , certificates ; and all patents , commissions , records , iudgements , statutes , recognizances , rolls , entries , and proceedings of courts leet , courts baron , and customary courts , and all proceedings whatsoever in any courts of iustice within this commonwealth , and which concerns the law , and administration of iustice , shall be in the english tongue onely , and not in latine or french , or any other language then english , any law , custom or usage heretofore to the contrary notwithstanding . and that the same , and every of them , shall be written in an ordinary , usual and legible hand and character , and not in any hand commonly called court-hand . and be it lastly enacted and ordained , that all and every person and persons offending against this law , shall for every such offence lose and forfeit the full sum of twenty pounds of lawful english money ; the one moyety thereof to the use of the commonwealth , and the other moyety to such person and persons as will sue for the same in any court of record , by action of debt , suit , bill , plaint or information ; in which no wager of law , essoign , or other delay shall be admitted or allowed . die veneris , november . . ordered by the parliament , that this act be forthwith printed and published . hen : scobell , cleric . parliamenti . london , printed by edward husband and john field , printers to the parliament of england , . of the law-terms, a discourse wherein the laws of the jews, grecians, romans, saxons and normans, relating to this subject are fully explained / written by ... sir henry spelman, kt. spelman, henry, sir, ?- . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) of the law-terms, a discourse wherein the laws of the jews, grecians, romans, saxons and normans, relating to this subject are fully explained / written by ... sir henry spelman, kt. spelman, henry, sir, ?- . [ ], p. printed for matthew gillyflower ..., london : . reproduction of original in duke university library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- terminology -- early works to . law -- antiquities -- early works to . - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion of the law-terms : a discourse written by the learned antiquary . sir henry spelman , kt. wherein the laws of the jews , grecians , romans , saxons and normans , relating to this subject , are fully explained . london , printed for matthew gillyflower , in westminster-hall . . sect . i. of the terms in general . as our law-books have nothing , to my knowledge , of the terms , so were it much better if our chronicles had as little : for though it be little they have in that kind , yet is that little very untrue , affirming that william the conquerour did first institute them . it is not worth the examining who was authour of this errour , but it seemeth that a polydore virgil ( an alien in our commonwealth , and not well endenized in our antiquities ) spread it first in print . i purpose not to take it upon any man's word : but , searching for the fountain , will , if i can , deduce them from thence , beginning with their definition . the terms are certain portions of the year in which onely the king's justices hold plea , in the high temporal courts , of causes belonging to their jurisdiction , in the place thereto assigned , according to the ancient rites and customs of the kingdom . the definition divides it self , and offers these parts to be consider'd . . the names they bear . . the original they come of . . the time they continue . . the persons they are held by . . the causes they deal with . . the place they are kept in . . the rites they are performed with . these parts minister matter for a book at large , but my purpose upon the occasion imposed being to deal onely with the institution of the terms ; i will travel no farther than the three first stages of my division , ( that is ) touching their name , their original , and their time of continuance . sect ii. of the names of the terms . the word terminus is of the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifieth the bound , end , or limit of a thing , here particularly of the time for law-matters . in the civil-law it also signifieth a day set to the defendant , and in that sense doth bracton and others sometimes use it . mat. paris calleth the sheriff's turn , terminum vicecomitis , and in the addition to the m : ss : laws of king inas , terminus is applied to the hundred-court ; as also in a charter of hen. . prescribing the time of holding the court. and we ordinarily use it for any set portion of time , as of life , years , lease , &c. the space between the terms , is named vacation , à vacando , as being leasure from law-business , by latinists justitium à jure stando , because the law is now at a stop or stand . the civilians and canonists call term-time dies juridicos ; vacation , dies feriales , days of leasure , or intermission , festival-days , as being indeed sequester'd from troublesome affairs of humane business , and devoted properly to the service of god , and his church . according to this our saxon and norman ancestours divided the year also between god and the king , calling those days and parts that were assigned to god , dies pacis ecclesiae , the residue allotted to the king , dies , or tempus pacis regis . divisum imperium cum jove caesar habet . other names i find none anciently among us , nor the word terminus to be frequent , till the time of hen. . wherein gervascius tilburiensis , and ranulphus de glanvilla ( if those books be theirs ) do continually use it for dies pacis regis . the ancient romans , in like manner , divided their year between their gods , and their commonwealth , naming their law-days , or term-time , fastos , because their praetor or judge might then fari , that is speak freely ; their vacation , or days of intermission ( as appointed to the service of their gods ) they called nefastos , for that the praetor might ne fari , not speak in them judicially . ovid fastorum lib. . ille nefastus erat , per quem tria verba silentur , fastus erat per quem lege licebat agi . when that the three judicial words the pretor might not use , it was nefastus : fastus then , when each man freely sues . the three judicial words were do , dico , abdico ; by the first he gave licence citare partem ream , to cite the defendant ; by the d . he pronounced sentence ; and by the d. he granted execution . this obiter . the word term hath also other considerations , sometimes it is used for the whole space , from the first return to the end of the term , including the day of a return essoine , exception , retorn . brev. sometimes and most commonly excluding these from the first sitting of the judges in full court ( which is the first day for appearance ) and this is called full-term by the statute of . of hen. . cap. . as though the part precedent were but semi-term , puisne-term , or introitus termini : the words of the stat. are these , that trinity-term shall begin the munday next after trinity-sunday , for keeping the essoines , returns , proffers and other ceremonies heretofore used , &c. and that the full term of the said trinity-term shall yearly for ever begin the fryday next after corpus christi - day . here the particulars i speak of , are apparently set forth , and the term declared to begin at the first return . by which reason it falleth out that the eight days wherein the court of the exchequer sits , at the beginning of michaelmas-terms , hilary-term and easter , are to be accounted as parts of the terms , for that they fall within the first return : the exchequer having one return in every of them , more than the courts of common-law have , viz. crastino sancti michaelis , octabis hilarii , and octabis or clausum paschae : and it seemeth that trinity-term had crastino trinitatis in the self-same manner , before this statute alter'd it . sect . iii. of the original of terms or law-days . law-days or dies juridici , which we call terms , are upon the matters as ancient as offences and controversies : god himself held a kind of term in paradise , when judicially he tryed and condemned adam , eve , and the serpent . in all nations , as soon as government was setled , some time was appointed for punishing offences , redressing of wrongs , and determining of controversies ; and this time to every of those nations was their term. the original therefore of the terms or law-days , and the time appointed to them , are like the signs of oblique ascention in astronomy , that rise together . i shall not need to speak any more particularly of this point , but shew it , as it farther offereth it self in our passage , when we treat of the time appointed to term or law-days , which is the next and longest part of this our discourse . sect . iv. of the times assigned to law-matters , called the terms . we are now come to the great arm of our division , which spreads it self into many branches in handling whereof we shall fall , either necessarily or accidentally , upon these points , viz. . of law-days among the ancients , jews and greeks . . of those among the romans using choice days . . of those among the primitive christians using all alike . . how sunday came to be exempted . . how other festivals , and other vacation days . . that our terms took their original from the canon-law . . the constitutions of our saxon kings ; edward the elder , guthurn the dane , and the synod of eanham under ethelred , touching this matter . . the constitutions of canutus more particular . . the constitutions of edward the confessour more material . . the constitution of william the conquerour . and of law-days in normandy . . what done by william rufus , stephen and henry the d . . of hilary-term according to those ancient laws . . of easter-term in like manner . . of trinity-term and the long vacation following . . of michaelmas-term . . of the later constitutions of the terms by the statutes of the . of hen. . and . of edw. . . how trinity-term was alter'd by the . of hen. . . and how michaelmas-term was abbreviated by act of parliament . carol. . chap. i. of law-days among the ancients . the time allotted to law-business seemeth to have been that from the beginning amongst all , or most nations , which was not particularly dedicated ( as we said before ) to the service of god , or some rites of religion . therefore whilst moses was yet under the law of nature , and before the positive law was given , he sacrificed and kept the holy festival with jethro his father-in-law on the one day , but judged not the people till the day after ; some particular instance ( i know ) may be given to the contrary , as i shall mention , but this seemeth to have been at that time the general use . the greeks , who ( as josephus in his book against appion witnesseth ) had much of their ancient rites from the hebrews , held two of their † prytanaean-days in every month for civil matters , and the third onely for their sacra . aeschines , in his oration against ctesiphon , chargeth demosthenes with writing a decree in the senate , that the * prytanaean magistrates might hold an assembly upon the . day of the approaching month of † elaphebolion , when the holy rites of aesculapius were to be solemnized . the romans likewise ( whether by instinct of nature or president ) medled not with law causes during the time appointed to the worship of their gods , as appeareth by their primitive law of the . tables , feriis jurgia amovento , and by the places before cited as also this of the same tables . post semel exta deo data sunt licet omnia fari . verbáque honoratus libera praetor habet . when sacrifice and holy rites were done , the reverend pretor then his courts begun . to be short , it was so common a thing in those days of old , to exempt the times of exercise of religion from all worldly business ; that the barbarous nations , even our angli , whilst they were yet in germany , the suevians themselves , and others of those northern parts would in no-wise violate or interrupt it . * tacitus says of them that , during this time , non bellum ineunt non arma sumunt , clausum omne ferrum ; pax & quies tunc tantùm nota , tunc tantùm amata . of our german ancestours we shall speak more anon ; our british are little to the purpose : they judged all controversies by their priests the druides , and to that end met but once a year as † caesar sheweth us by those of the gauls . i will therefore seek the original of our terms onely from the romans , as all other nations that have been subject to their civil and ecclesiastical monarchy do , and must . chap. ii. of law-days amongst the romans using choice days . the ancient romans , whilst they were yet heathens , did not as we at this day use certain continued portions of the year , for a legal decision of controversies , but out of a superstitious conceit that some days were ominous , and more unlucky than others ( according to that of the aegyptians , ) they made one day to be fastus , or term-day , and another ( as an aegyptian day ) to be vacation or nefastus : seldom two fasti , or law-days together , yea they sometimes divided one and the same day in this manner , qui modo fastus erat , manè nefastus erat , the afternoon was term , the m●rning holy-day . nor were all their fasti applyed to judicature , but some of them to other meetings and consultations of the commonwealth ; so that being divided into three sorts , which they called fastos propriè , fastos intercisos , & fastos comitiales , they contained together . days , yet through all the months in the year there remained not properly to the pretor , as judicial or triverbal days above ; whereas , before the abbreviation of michaelmas term by the statute of . car. . we had in our term above . days in court , and now have . besides the sundays and exempted festivals which fall in the terms ; and those are about . or there about . † sir thomas smith counts it strange , that three tribunals in one city in less than a third part of the year should satisfie the wrongs of so large and populous a nation as this of england . but let us return where we left off . chap. iii. of law-days amongst the primitive christians , and how they used all times alike . to beat down the roman superstition touching the observation of days , against which st. augustine and others wrote vehemently ; the christians at first used all days alike for hearing of causes , not sparing ( as it seemeth ) the sunday it self , thereby falling into another extreme : yet had they some president for it from moses and the jews . for * philo judaeus in the life of moses reporteth , that the cause of him that gather'd sticks on the sabbath-day , was by a solemn council of the princes , priests , and the whole multitude , examined and consulted of on the sabbath-day . and the talmudists , who were best acquainted with the jewish customs , as also galatinus the hebrew , do report that their judges in the council called sanhedrim sate on the week-day from morning to night , in the gates of the city ; and on the sabbath , and on festivals upon the walls . so the whole year then seemed a continual term , no day exempted . how this stood with the levitical law , or rather the moral , i leave to others . chap. iv. how sunday came to be exempted . but , for the reformation of the abuse among christians , in perverting the lord's day to the hearing of clamorous litigants , it was ordained in the year of our redemption . by the fathers assembled in concilio taraconensi cap. . after that in concilio spalensi cap. . and by adrian bishop of rome in the decretal caus. . quaest . . that , nullus episcopus vel infra positus die dominico causas judicare [ aut ventilare ] praesumat , no bishop or inferiour person presume to judge or try causes on the lord's day . for it appeareth by epiphanius , that in his time ( as also many hundred years after ) bishops and clergy-men did hear and determine causes , lest christians , against the rule of the apostle , should goe to law under heathens and infidels . this canon of the church for exempting sunday was by theodosius fortified with an imperial constitution , whilst we britains were yet under the roman government , solis die , quem dominicum certe dicere solebant majores , omnium omnino litium & negotiorum quiescat intentio . thus was sunday redeemed from being part of the term ; but all other days by express words of the canon were left to be dies juridici , whether they were mean or great festivals ; for it thus followeth in the same place of the a decretals ; caeteris verò diebus convenientibus personis illa quae justa sunt habent licentiam judicandi , excepto criminali ( or as another edition reads it ) exceptis criminalibus negotiis . the whole canon is verbatim also decreed in the capitulars of the emperours * carolus & ludovicus . chap. v. how other fastival and vacation days were exempted . let us now see how other festivals and parts of the year were taken from the courts of justice . the first canon of note that i meet with to this purpose is that in concilio triburiensi ca. . in or about the year . nullus comes , nullúsque omnino secularis diebus dominicis vel sanctorum in festis seu quadragessimae , aut jejuniorum , placitum habere , sed nec populum praesumat illo coercere . after this manner the council of † meldis ca. . took easter-week , commonly called the octaves , from law-business ; paschae hebdomade feriandum , forensia negotia prohibentur . by this example came the octaves of pentecost , st. michael , the epiphany , &c. to be exempted , and principal feasts to be honoured with octaves . the next memorable council to that of tribury was the council of ertford in germany in the year . which though it were then but provincial , yet being afterwards taken by gratian into the body of the canon law , it became general , and was imposed upon the whole church . i will recite it at large , as it stands in * binius , for i take it to be one of the foundation-stones to our terms . placita secularia dominicis vel aliis festis diebus , seu etiam in quibus legitima jejunia celebrantur secundum canonicam institutionem , minimè fieri volumus . in super quoque gloriosissimus rex [ francorum henricus ] ad augmentum christianae religionis concessit , ( or as † gratian hath it ) [ sancta synodus decrevit ] ut nulla judiciaria potest as licentiam habeat christianos suâ authoritate ad placitum bannire septem diebus ante natalem domini , & à * quinquagessima usque ad octavas paschae , & septem diebus ante natalem sancti johannis baptistae , quatenus adeundi ecclesiam orationibúsque vacandi liberiùs habeatur facultas . but the council of st. medard extant first in † burchard , and then in gratian enlargeth these vacations in this manner , decrevit sancta synodus , ut a quadragessima usque in octavam paschae , & ab adventu domini usque in octavam epiphaniae , necnon & in jejuniis quatuor temporum , & in litaniis majoribus , & in diebus dominicis , & in diebus rogationum ( nisi de concordia & pacificatione ) nullus supra sacra evangelia jurare praesumat . the word [ jurare ] here implyeth law causes , or hold plea on these days , as by the same phrase in other laws shall by and by appear , which the gloss also upon this canon maketh manifest , saying , in his etiam diebus causae exerceri non debent , citing the other † canon here next before recited , but adding withall , that the court and custome of rome it self doth not keep vacation from septuagessima , nor , as it seemeth , on some other of the days . and this president we follow , when septuagessima and sexagessima fall in the compass of hilary-term . chap. vi. that our terms take their original from the canon law. thus we leave the canon law , and come home to our own country , which out of these , and such other foreign constitutions ( for many more there are ) has framed our terms , not by chusing any set portion of the year for them , but by taking up such times for that purpose , as the church and common necessity ( for collecting the fruits of the earth ) left undisposed of , as in that which followeth plainly shall appear . chap. vii . the constitutions of our saxon kings in this matter . in as one of our ancient saxon kings , made a very strict law against working on sunday . gif þeoƿ mon ƿyrce on sunnan daeg . be his hlafordes haese . sy he freo . if a servant work on sunday by his master's command , let him be made free , &c. and * alured prohibited many festivals ; but the first that prohibited juridical proceedings upon such days was edward the elder and guthurne the dane , who in the league between them , made about ten years before the council of ertford , ( that it may appear we took not all our light from thence ) did thus ordain ; ordel & aþas syndon tocƿedene . freols dagum . & riht faesten dagum ; we forbid that ordel and oaths ( so they called law-tryals at that time ) be used upon festival and lawfull fasting days , &c. how far this law extended appeareth not particularly , no doubt to all festival and fasting-days then imposed by the roman church , and such other provincial , as by our kings and clergy here were instituted . those which by alured were appointed to be festivals , are now by this law made also days of vacation from judicial trials , yet seem they , for the most part , to be but semi-festivals , as appointed onely to freemen not to bondmen , for so this † law declareth , viz. the . days of christmas , the day wherein christ overcame the devil , the anniversary of st. gregory , the . days afore easter , and the seven days after , the day of st. peter and st. paul , and the whole week before st. mary in the harvest , and the feast-day of all-saints . but the four wednesdays in the four ember weeks are remitted to bondmen to bestow their work in them as they think good . to come to that which is more perspicuous , i find about a sixty years after , a canon in our b synod of eanham , under king ethelred in these words . first , touching sunday , c dominicae solennia diei cum summo honore magnopere celebranda sunt , nec quicquam in eadem operis agatur servilis . negotia quoque secularia quaestionésque publicae in eadem deponantur die . then commanding the feast-days of the c b. virgin , and of all the c apostles , the d fast of the ember days , and of the e fryday in every week to be duely kept ; it proceedeth thus , f judicium quippe quod anglicè ordel dicitur , & juramenta vulgaria , festivis temporibus & legitimis jejuniis , sed & ab adventu domini usque post octabas epiphaniae , & à septuagesima usque . dies post pascha minime exerceantur : sed sit his temporibus summa pax & concordia inter christianos , sicut fieri oportet . it is like there were some former constitutions of our church to this purpose ; but either mine eye hath not lighted on them , or my memory hath deceived me of them . chap. viii . canutus succeeding shortly after by his danish sword in our english kingdome , not onely retained but revived this former constitution , adding , after the manner of his zeal , two new festival and vacation days . and ƿe forbeodað ordal . & að●s freols dagum . & ymbren dagum . & len●●en dagum . & riht faesten dagum ; & fram adventum domini eþ se eah to þa dag ; and we forbid ordal and oaths on feast-days , and ember days , and lent , and set fasting days , and from the advent of our lord till eight days after [ the ] twelve [ days ] be past . and from septuagessima till fifteen nights after easter . and the sages have ordained that st. edward's day shall be festival over all england on the . of the kalends of april , and st. dunstan's on the . of the kalends of june , and that all christians ( as right it is ) should keep them hallowed and in peace . canutus , following the example of the synod of eanham , setteth down in the paragraph next before this recited , which shall be festival and which fasting-days , appointing both to be days of vacation . among the fasting days he nameth the saints eves and the frydays ; but excepteth the frydays when they happen to be festival days , and those which come between easter and pentecost ; as also those between midwinter ( so they called the nativity of our lord ) and octabis epiphaniae . so that , at this time , some frydays were law-days and some were not . those in easter term , with the eve of philip and jacob , were , and the rest were not . the reason of this partiality ( as i take it ) was ; they fasted not at christmas for joy of christ's nativity , nor between easter and whitsontide , for that christ continued upon the earth , from his resurrection till his ascension ; and a the children of the wedding may not fast so long as the bridegroom is with them : nor at whitsuntide for joy of the coming of the holy ghost . chap. ix . the constitution of edward the confessour most material . saint edward the confessour drew this constitution of canutus nearer to the course of our time , as a law in these words : b ab adventu domini usque ad octabas epiphaniae pax dei & sanctae ecclesiae per omne regnum ; similiter à septuagessima usque ad octabas paschae ; item ab ascensione domini usque ad octabas pentecostes ; item omnibus diebus quatuor temporum ; item omnibus sabbatis ab hora nona , & totâ die sequenti , usque ad diem lunae ; item vigiliis sanctae mariae , sancti michaelis , sancti johannis baptistae , apostolorum omnium & sanctorum quorum solennitates a sacerdotibus dominicis annunciantur diebus ; & omnium sanctorum in kalendis novembris , ab hora nona vigiliarum , & subsequenti solennitate : item in parochiis in quibus dedicationis dies observatur ; item parochiis ecclesiarum ubi propria festivitas sancti celebratur , &c. the rubrick of this law is , de temporibus & diebus pacis regis , intimating term-time , and here in the text the vacations are called dies pacis dei & sanctae ecclesiae , as i * said in the beginning . but pax dei , pax ecclesiae , & pax regis in other laws of edward the confessour , and elsewhere , have other significations also more particular . hora nona is here ( as in all authours of that time ) intended for three of the clock in the after-noon , being the ninth hour of the artificial day , wherein the saxons , as other nations of europe , and our ancestours of much later time , followed the judaical computation : perhaps till the invention and use of clocks gave a just occasion to alter it , for that they could not dayly tarry for the unequal hours . chap. x. the constitution of william the conquerour . this constitution of edward the confessour was amongst his other laws confirm'd by william the conquerour ; as not onely a hoveden , and those ancient authours testify , but by the decree of the conquerour himself , in these words ; b hoc quoque praecipio ut omnes habeant & teneant leges edwardi in omnibus rebus , adauctis his quae constituimus ad utilitatem anglorum . and in those auctions nothing is added , alter'd , or spoken , concerning any part of that constitution . neither is it likely that the conquerour did much innovate the course of our terms or law-days , seeing he held them in his own dutchy of normandy , not far differing from the same manner , having received the customs of that his country from this of ours , by the hand of edward the confessour , as in the beginning of their old customary themselves do acknowledge . the words touching their law-days or trials are these , under the title , de temporibus quibus leges non debent fieri : c notandum autem est quod quaedam sunt tempora in quibus leges non debent fieri , nec simplices , nec apertae , viz. omnia tempora in quibus matrimonia non possunt celebrari . ecclesia autem legibus apparentibus omnes dies festivos perhibet , & defendit , viz. ab hora nona die jovis , usque ad ortum solis die lunae sequenti , & omnes dies solennes novem lectionum & solennium jejuniorum , & dedicationis ecclesiae in qua duellum est deducendum . this law doth generally inhibit all judicial proceedings , during the time wherein marriage is forbidden , and particularly all trials by battail , ( which the french and our d glanvill call leges apparentes , alias apparibiles , vulgarly loix apparisans ) during the other times therein mention'd . and it is to be noted , that the emperour frederick the second in his e neapolitan constitutions includeth the trials by ordeal under leges paribiles . but touching the times wherein marriage was forbidden , it agreed for the most part with the vacations prescribed by edward the confessour , especially touching the beginning of them . of dies novem lectionum , we shall find occasion to speak hereafter . chap. xi . what done by william rufus . hen. . k. stephen , and hen. . as for william rufus , we reade that he pulled many lands from the church , but not that he abridged the vacation times assigned to it . henry the . upon view of former constitutions , composed this law under the title , de observatione legis faciendi , viz , ab adventu domini usque ad octabas ep●●haniae , & à septuagessima usque ad dies post pascham , & festis diebus , & quatuor temporum , & diebus quadragessimalibus , & aliis legitimis jejuniis , in diebus veneris , & vigiliis a sanctorum apostolorum non est tempus leges faciendi , vel jusjurandum ( b nisi primo fidelitate domini vel concordia ) vel bellum , vel ferri , vel aquae , vel leges c exactiones tractari , sed sit in omnibus vera pax , beata charitas , ad honorem omnipotentis dei , &c. the copy of these laws is much corrupted , and it appeareth by florence wigorn's continuer , that the * londoners refused them , and put maud the empress to an ignominious flight when she pressed the observation of them . but in this particular branch there is nothing not agreeable to some former constitution . the word bellum here signifieth combats , which among our saxons are not spoken of , and by those of ferri vel aquae , are meant ordal . king stephen by his charter recited at malmesbury , confirmed and established by a generality † bonas leges & antiquas , & justas consuetudines . henry the d . expresly ratified the laws of edward the confessour , and william the conquerour , as c hoveden telleth us , saying , that he did it by the advice of ranulph glanvill then newly made chief justice of england ; which seemeth to be true , for that * glanvill doth accordingly make some of his writs returnable in octabi , or clauso paschae where the laws of edward the confessour appoint the end of lent vacation : and e gervascius tilburiensis also mentioneth the same return . chap. xii . the terms laid out according to these ancient laws . to lay out now the bounds of the terms according to these canons and constitutions , especially that ancient law of edward the confessour ; it thus appeareth , viz. hilary term began then certainly at octabis epiphaniae , that is the thirteenth day of january , seven days before the first return is now , and nine days before our term beginneth , and ended at the saturday next before septuagessima , which being movable made this term longer some years than in others . florentinus wigorniensis , and walsingham in his a hypodigma neustriae saith , — anno . in octabis epiphaniae apud sarisburiam rex gulielmus rufus tenuit consilium in quo jussit gulielmo de anco in duello victi oculos eruere , & testiculos abscindere , & dapiferum illius gulielmum de alderi , filium amitae illius suspendi , &c. proceeding also judicially against others . though walsingham calleth this assembly consilium with an s , and wigorniensis concilium with a c , ( the word term perhaps not being in use in the days of william rufus ) yet it may seem to be no other , than an assembly of the barons , in the king's court of state , ( which was then the place of justice ) to proceed judicially against these offenders . for the barons of the land were at that time the judges of all causes , which we call pleas of the crown , and of all other belonging to the court of the king : so that the proceedings being legal and not parliamentary , it appeareth that it was then no vacation , and that the term was begun at octabis epiphaniae ; whereby it is the liklier also that it ended at septuagessima , lest beginning it , as we now do , some years might happen to have no hilary-term at all , as shall anon appear . and this our ancient use of ending the term at septuagessima is some inducement to think , the council of ertford to be depraved , and that the word there quinquagessima should be septuagessima , as the gloss there reporteth it to be in some other place : and as well gratian mistakes this , as he hath done the council it self , attributing it to ephesus , a city of ionia , instead of ertford a town in germany ; where burchard before him , and binius since , hath placed it . it comes here to my mind , what i have heard an old chequerman many years agoe report , that this term and trinity-term were in ancient time either no terms at all , or but as reliques of michaelmas and easter-terms , rather than just terms of themselves : some courses of the chequer yet encline to it . and we were both of the mind , that want of business ( which no doubt in those days was very little ) by reason suits were then for the most part determined in inferiour courts , was the cause of it . but i since observe another cause , viz. that septuagessima or church-time one while trode so near upon the heels of octabis epiphaniae ( i mean came so soon after it , ) that it left not a whole week for hilary-term ; and again , another while , trinity-sunday fell out so late in the year , that the common necessity of hay-seed and harvest , made that time very little , and unfrequented . for inasmuch as easter-term ( which is the clavis , as well to shut up hilary-term , as to open trinity-term , ) may according to the general council of nice , holden in the year . fall upon any day between the . of october exclusively , which then was the aequinoctium , and the of april inclusively ( as the farthest day that the sunday following the vernal full-moon can happen upon ; ) septuagessima may sometimes be upon the . of january , and then they could not in ancient time have above . days term , and we at this day no term at all , because we begin it not till the . of january , which may be six days after septuagessima , and within the time of church-vacation . but what hilary-term hath now lost from the beginning of it , it hath gained at the latter end of trinity-term . and i shall speak more of this by and by . chap. xiii . easter-term . easter-term , which now beginneth two days after quindena paschae , began then as the law of edward the confessour appointed it , at octab. this is verified by glanvill , who maketh one of his writs returnable thus ; — summoneo per bonos summonitores quatuor legales milites de vicineto de stock , quod sint ad clausum paschae coram me vel justiciariis meis apud westmonasterium ad eligendum supra sacramentum suum duodecim legales milites . but , as it began then nine days sooner than it now doth , so it ended six or seven days sooner , ( viz. ) before the vigil of ascension , which i take to be the meaning of the law of edward the confessour , appointing the time from the ascension ( inclusive ) to the octaves of pentecost with ascension-eve to be dies pacis ecclesiae , and vacation . chap. xiv . trinity-term . trinity-term therefore in those days began as it now doth ( in respect of the return ) at octab. pentecostes , which being always the day after trinity-sunday is now by the stat. of of hen. . appointed to be called crastino trinitatis . but it seemeth that the stat. . of hen. . changed the beginning of this term from crastino trinitatis to octab. trinitatis , and that therefore the stat. of hen. . did no more in this point than reduce it to the former original . as touching the end of this term , it seemeth also that the said stat. of . hen. . assigned the same to be within two or three days after quindena sancti johannis ( which is about the twelvth of july ) for that statute nameth no return after . bnt , for ought that hindreth by the canons , it is tanquam terminus sine termino ; for , there was no set canon or ecclesiastical law ( that i can find ) to abbridge the continuance thereof till michaelmas-term , unless the . days next before st , john baptist , were ( according to the canon of ertford ) used as days of intermission , when they fell after the octaves of pentecost as commonly they do , though in the year . four of them fell within them . and except the ember-days next after holy rood ; for jejunia quatuor temporum , as well by the laws of canutus , and edward the confessour , as by all other almost before recited , are either expresly or implicitly exempted from the days of law. but when trinity-sunday fell near the feast of st. john baptist , then was the first part of this term so thrust up between those days of the church , that it was very short ; and the latter part being always very late did so hinder hay-seed and harvest following , that either the course of it must be shortned , or it must still usurp upon the time , allotted by nature to collect the fruits of the earth . for as religion closed the courts of law in other parts of the year , so now doth publick necessity stop the progress of them ; following the constitution of a theodosius , thus decreeing ; — omnes dies jubemus esse juridicos . illos tantum manere feriarum dies fas erit , quos geminis mensibus ad requiem laboris indulgentior annus excepit : aestivos fervoribus mitigandis , & autumnos fructibus discerpendis . this is also confirmed in the b c. — and in c gratian with the glosses upon them to which i leave you , but is of old thus expressed by d statius , as if it were ex jure gentium : certè jam latiae non miscent jurgia leges , et pacem piger annus habet , messésque reversae dimisere forum : nec jam tibi turba reorum vestibulo , querulique rogant exire clientes . the latian laws do no man now molest , but grant this weary season peace and rest ; the courts are stopt when harvest comes about , the plaintiff or defendant stirs not out . so the longobards ( our brethren as touching saxon original ) appointed for their vintage a particular vacation of days , which paulus diaconus doth thus mention : proficiscentes autem eo ad villam , ut juxta ritum imperialem triginta : whereby it appeareth that this time was not onely a time of vacation , in those ancient days , but also of feasting and merriment , for receiving the fruits of the earth ; as at nabal's and absalom's sheep-shearing , and in divers parts of england at this day . so the normans , whose terms were once not so much differing from ours , might not hold their assizes or times of law , but after easter and harvest ; that is after the times of holy church and publick necessity ) as appeareth by their customary . and forasmuch as the * swainmote-courts are by the ancient forest-laws appointed to be kept fifteen days before michaelmas ; it seemeth to be intended that harvest was then done , or that in forests little or no corn was used to be sown . but is to be remembred , that this vacation by reason of harvest , hay-seed , vintage , &c. was not of so much solemnity as those in the other parts of the year , and therefore called of the civilians , dies feriati minùs solennes ; because they were not dedicated divino cultui , but humanae necessitati . therefore though law-business was prohibited on these days to give ease and freedom unto suiters whilst they attended on the store-house of the commonwealth ; yet was it not otherwise than that by consent of parties they might proceed in this vacation , whereof see the b decreta gregorii . chap. xv. of michaelmas-term according to the ancient constitutions . michaelmas-term ( as the canons and laws aforesaid leave it ) was more uncertain for the beginning than for the end . it appeareth by a fine taken at norwich , hen. . that the term was then holden there , and began within the octaves of saint michael ; for the note of it is ; haec est finalis concordia facta in curia domini regis apud norwicum , die martis proximo post festum sancti michaelis , anno regni regis henrici filii regis johannis . coram tho. de mulet , rob. de lexint , olivero , &c. i observe that the tuesday next after st. michael can ( at the farthest ) be but the seventh day after it , and yet it must be a day within the octaves ; whereas the term * now is not till the third day after the octaves . but a gervasius tilburiensis , who lived in the days of hen. . hath a writ in these words : — n. rex anglorum , [ illi vel illi ] vicecomiti salutem . vide , sicut teipsum & omnia tua diligis , ut sis ad scaccarium [ ibi vel ibi in crastino sancti michaelis , vel in crastino clausi paschae ] & habeas tecum quicquid debes de veteri firma & nova , & nominatim haec debita subscript . viz. &c. by which it appeareth that the term in the exchequer , as touching sheriffs and accomptants , and consequently in the other parts , began then as now it doth , saving that the statute de scaccario , hen. . hath since appointed , that sheriffs and accomptants shall come to the exchequer the monday after the feast of st. michael , and the monday after the * vtas of easter . so that this time being neither ferial nor belonging to the church , may justly be allotted to term affairs , if the octaves of saint michael have no privilege : more of which hereafter . the end is certainly prefixed by the canons and laws aforesaid , that it may not extend into advent . and it holdeth still at that mark ; saving that because advent sunday is moveable , according to the dominical-letter , and may fall upon any day between the th of november and the th of december , therefore the th of november ( as a middle period by reason of the feast and eve of st. andrew ) hath been appointed to it . howbeit when advent-sunday falleth on the th of november , as sometimes it doth , then is the last day of the term ( contrary to the canons and former constitutions ) held in advent , as it after shall more largely appear . chap. xvi . the latter constitutions of the terms . to leave obscurity and come nearer the light , it seemeth by the statutes of hen. . called dies communes in banco , that the terms did then either begin and end as they do now , or that those statutes did lay them out , and that the statute of ed. . cap. . confirmed that use : for the returns there mentioned are neither more nor fewer than * at this day . chap. xvii . how trinity-term was altred and shortned . trinity-term was altred and shortned by the statute of hen. . chap. . which hath ordained it quoad sessionem , to begin for ever the fryday after corpus-christi-day , and to continue days ; whereas in elder times it began two or three days sooner . so that corpus-christi-day being a moveable feast , this term cannot hold any certain station in the year , and therefore in the year , it began on st. john baptist's day , and the year before it ended on his eve. hereupon , though by all the canons of the church and former laws , the feast of st. john baptist was a solemn day , and exempt from legal proceedings in courts of justice ; yet it is no vacation day , when corpus-christi falleth ( as it did that year ) the very day before it : because the statute hath appointed the term to begin the fryday next after corpus-christi-day , which in the said year . was the day next before st. john baptist , and so the term did of necessity begin on saint john baptist's day . this deceived all the prognosticators , who counting st. john baptist , for a grand day , and no day in court , appointed the term in their almanacks to begin the day after , and consequently to hold a day longer ; so deceiving many by that their errour . but , the aforesaid statute of h. . changed the whole frame of this term : for it made it begin sooner by a return , viz. crastino sanctae trinitatis , and thereby brought octabis trinitatis which before was the first return , to be the second , and quindena trinitatis which before was the second , now to be the third ; and instead of the three other returns of crastino octabis , and quindena sancti johannis , it appointed that which before was no return , but now the fourth and last , called tres trinitatis . the altering and abbreviation of this term is declared by the preamble of the statute , to have risen out of two causes , one for health , in dismissing the concourse of people , the other for wealth that the subject might attend his harvest , and the gathering in the fruits of the earth . but there seemeth to be a third also not mention'd in the statute , and that is , the uncertain station , length and returns of the first part of this term , which , like an excentrick , was one year near to st. john baptist , another year far removed from it ; thereby making the term not onely various , but one year longer , and another shorter , according as trinity-sunday ( being the clavis to it ) fell nearer or farther off from st. john baptist. for if it fell betimes in the year , then was this term very long , and the two first returns of octabis and quindena trinitatis might be past and gone a fortnight and more , before crastino sancti johannis could come in : and if it fell late , ( as some years it did ) then would crastino sancti johannis be come and past , before octabis trinitatis were gone out . so that many times one or two of the first returns of this term ( for ought that i can see ) must in those days needs be lost . chap. xviii . how michaelmas-term was abbreviated by act of parliament . car. . cap. . the last place our statute-book affords upon this subject of the limits and extent of the terms is the stat. . car. . chap. . intituled , an act concerning the limitatiom and abbreviation of michaelmas-term . for , whereas by former statutes it doth appear , that michaelmas-term did begin in octabis sanctae michaelis , that statute appoints , that the first return in this term shall ever hereafter be à die sancti michaelis in tres septimanas , so cutting off no less than two returns from the ancient beginning of this term , viz. octabis sancti michaelis , & a die sancti michaelis in quindecim dies , and consequently making the beginning of it fall a fortnight later than before . wherefore the first day in this term will always be the d . day of october , unless it happen to be sunday , for then it must be defer'd till the day following , upon which account we find it accordingly placed on the . for the year . this is all the alteration that statute mentions , and therefore for the end of michaelmas-term , i refer the reader to what our authour has said already in the th . chapter . it may not be amiss in persuit of our authour's method to set down the motives of making this abbreviation as we find them reckon'd up in the preamble to that statute . there we find , that the old beginning of michaelmas-term , was generally found to be very inconvenient to his majesty's subjects both nobles and others . . for the keeping of quarter-sessions next after the feast of st. michael the archangel ; ly . for the keeping their leets , law-days and court-barons : ly . for the sowing of land with winter-corn , the same being the chief time of all the year for doing it ; ly . for the disposing , and setting in order of all their winter husbandry and business ; ly . for the receiving and paying of rents ; ly . because in many parts of this kingdom , especially the most northern , harvest is seldom or never inned till three weeks after the said feast . all which affairs they could before by no means attend , in regard of the necessity of their coming to the said term , so speedily after the feast of st. michael the archangel , to appear upon juries , and to follow their causes and suits in the law. sect . v. other considerations concerning term-time . having thus laid out the frame of the terms , both according to the ancient and modern constitutions , it remaineth that we speak something of other points properly incident to this part of our division touching term-time , viz. . why the courts sit not in the afternoons . . why not upon some whole days , as on grand-days , double feasts , and other exempted days , and the reason of them . . why some law-business may be done upon some days exempted . . why the end of michaelmas-term is sometimes held in advent , and of hilary-term in septuagessima , sexagessima , and quinquagessima . . why the assizes are held in lent , and at times generally prohibited by the church . . of returns . . of the quarta dies post . . why i have cited so much canon , civil , feodal , and foreign laws in this discourse , with an incursion into the original of our laws . chap. i. why the high courts sit not in the afternoons . it is now to be considered why the high courts of justice sit not in the afternoons . for it is said in * scripture , that moses judged the israelites from morning to evening . and the romans used the afternoon as well as the forenoon , yea many times the afternoon and not the forenoon , as upon the days called endotercisi , or intercisi , whereof the forenoon was nefastus or vacation , and the afternoon fastus or law-day , as we shewed in the beginning . and the civilians following that law do so continue them amongst us in their terms at this day . but our ancestours and other the northern nations being more prone to distemper and excess of diet ( as the canon law noteth of them ) used the forenoon onely , lest repletion should bring upon them drowsiness and oppression of spirits ; according to that of st. jerome , pinguis venter non gignit mentem tenuem . to confess the truth , our saxons ( as appeareth by a huntington ) were unmeasurably given to drunkenness . and it is said in b ecclesiastes , vae terrae cujus principes manè comedunt . therefore to avoid the inconvenience depending hereon the council of nice ordained , that judices non nisi jejuni judicia decernant . and in the council of salegunstad it was afterward decreed , a. d. , ut lectio nicaeni concilii recitetur , which being done in the words aforesaid , the same was likewise there confirm'd . according to this in the laws of carolus magnus the emperour it is ordained , a l — lib. . ut judices jejuni causas audiant & discernant : and again in the b capitulars caroli & lodovici , nè placitum c comes habeat nisi jejunus . where the word comes , according to the phrase of that time is used for judex , as elsewhere we have it declared to the same effect in the capitular ad legem salicam : and out of these and such other d constitutions ariseth the rule of the canon law , that quae à prandio fiunt constitutiones inter decreta non referuntur . yet i find that causes might be heard and judged in the afternoon ; for in capitulars lib. — , and again lib. . cau. . it is said , causae viduarum pupillorum & pauperum audiantur & definiantur ante meridiem , regis verò & potentiorum post meridiem . this though it may seem contradictory to the constitutions aforesaid , yet i conceive them to be thus reconcilable : that the judges ( sitting then but seldom ) continued their courts both forenoon and afternoon , from morning till evening without dinner or intermission , as at this day they may , and often do , upon great causes : though being risen and dining , they might not meet again ; yet might they not sit at night , or use candle light , quòd de nocte non est honestum judicium exercere . and from these ancient rites of the church and empire is our law derived , which prohibiteth our jurours , being judices de facto , to have meat , drink , fire or candle light , till they be agreed of their verdict , it may here be demanded how it cometh to pass , that our judges after dinner do take assizes and nisi prius in the guild-hall of london , and in their circuits ? i have yet no other answer but that ancient institutions are discontinued often by some custome grating in upon them , and changed often by some later constitution , of which kind the instances aforesaid seem to be . for assizes were ordained many ages after by henry the second , as appeareth by the charter of beverly glanvill and radulphus niger , and nisi prius by * edward the first , in the statutes of westminster ; though i see not but in taking of them the ancient course might have been continued if haste would suffer it . chap. ii. why they sit not at all some days . though there be many days in the terms , which by ancient constitutions before recited are exempted from law-business , as those of the apostles , &c. and that the a statute of ed. . appointed many of them to be kept holy-days , as dedicated , not unto saints , but unto divine worship , which we also at this day retain as holy-days : yet do not the high courts forbear sitting in any of them , saving on the feast of the purification , the ascension , st. john baptist , all-saints , and the day after , ( though not a feast ) called all-souls . when the others lost their privilege and came to be term-days i cannot find ; it sufficeth that custome hath repealed them by confession of the canonists . yet it seemeth to me , there is no provision made for it in the constitutions of our church under isleep archbishop of canterbury in the time of edward the third . for though many ancient laws and the decretals of gregory the th had ordained , judicialem strepitum diebus conquiescere feriatis ; yet in a synod then holden , wherein are all the holy-days appointed and particularly recited , no restraints of judicature or forensis strepitus is imposed , but a cessation onely ab universis servilibus operibus , etiam reipublicae utilibus . which though it be in the phrase god himself useth touching many great feasts , viz. a omne servile opus non facietis in iis , yet it is not in that when he instituteth the seventh day to be the sabbath , b non facies omne opus in eo , without servile , thou shalt doe no manner of work therein . now the act of judicature , and of hearing and determining controversies is not opus servile , but honoratum & planè regium , and so not within the prohibition of this our canon , which being the latter seemeth to qualifie the former . yea the canonists and casuists themselves not onely expound opus servile of corporeal and mechanical labour , but admit several cases where ( even in that very kind ) dispensation lieth against the canons , and by much more reason then , with this in question . it may be said that this canon consequently giveth liberty to hold plea and courts , upon their festivals in the vacations . i confess that so it seemeth ; but this canon hath no power to alter the bounds and course of the terms , which before were setled by the statutes of the land , so that in that point it prevaileth not . why ? but there ariseth another question how it comes to pass that the courts sit in easter-term upon the rogation days , it being forbidden by the council of medard , and by the intention of divers other constitutions ? it seemeth that it never was so used in england , or at least not for many ages , especially since gregory the ninth ; insomuch that among the days wherein he prohibiteth forensem strepitum , clamorous pleading , &c. he nameth them not . and though he did , the glossographers say , that a nation may by custome erect a feast that is not commanded by the canons of the church . * et eodem modo posset ex consuetudine introduci , quòd aliqua quae sunt de praecepto non essent de praecepto , sicut de tribus diebus rogationum , &c. to be short , i find no such privilege for them in our courts , though we admit them other church rites and ceremonies . we must now shew ( if we can ) why the courts , sitting upon so many ferial and holy-days , do forbear to sit upon some others , which before i mention'd ; the purification , ascension , st. john baptist , all-saints , &c. for , in the synod under isleep before mention'd , no prerogative is given to them above the rest , that fall in the terms ; as namely , st. mark and st. philip and jacob , when they do fall in easter term , st. peter in trinity-term , st. luke ( before the late abbreviation by . car. . ) did fall , and st. simon and jude , doth always fall in michaelmas-term . it may be said , that , although the synod did prohibit onely opera servilia to be done on festival-days , as the offence most in use at that time ; yet did it not give licence to doe any act that was formerly prohibited by any law or laudable custome . and therefore if by colour thereof , or any former use ( which is like enough ) the courts did sit on lesser festivals , yet they never did it on the greater , among which ( majoris cautelae gratiâ ) those opera servilia are there also prohibited to be done on easter-day , pentecost , and the sunday it self . let us then see which are the greater feasts , and by what merit they obtain their privilege , that the courts of justice sit not on them . as for sunday , we shall not need to speak of it , being canonized by god himself . as for easter and whitsunday , we shall not need to speak of them neither , because they fall not in the terms : yet i find a parliament held , at least began on whitsunday . but touching feasts in general , it is to be understood , that the canonists , and such as write a de divinis officiis , divide them into two sorts , viz. festa in totum duplicia , & simpliciter duplicia : and they call them duplicia , or double feasts , for that all , or some parts of the service , on those days were begun voce duplici , that is , by two singing-men ; whereas on other days all was done by one . our cathedral churches do yet observe it : and i mean not to stay upon it , for you may see in the b rationale which feasts were of every of these kinds . the ordinary apostles were of the last , and therefore our courts made bold with them : but the purification , ascension , st. john baptist , with some others that fall not in the term , were of the first , and because of this and some other prerogatives were also called , festa majora , festa principalia , & dies novem lectionum , ordinarily , double feasts , and grand days . mention is made of them in an b ordinance . ed. . that writs were ordained to the bishops , to accurse all and every of the perturbers of the church , & c. every sunday and double feast , &c. but we must needs shew why they were called dies novem lectionum , for so our old rituale de sarum , styleth them , and therein lyeth their greatest privilege . after the arian heresie against the b , trinity was by the fathers of that time most powerfully confuted and suppressed , the church in memory of that most blessed victory , and the better establishing of the orthodox faith in that point , did ordain , that upon divers festival-days in the year , a particular lesson touching the nature of the trinity , besides the other . should be read in their service , with rejoycing and thanksgiving to god for suppressing that heresie : and for the greater solemnity , some c bishop , or the chiefest clergy-man present did perform that duty . thus came these days to their styles aforesaid , and to be honoured with extraordinary musick , church-service , robes , apparel , feasting , &c. with a particular exemption from law-trials amongst the normans , who therefore kept them the more respectfully here in england : festa enim trinitatis ( saith belethus ) digniori cultu sunt celebranda . in france they have two sorts of grand days , both differing from ours : first , they call them , les grand jours , wherein an extraordinary sessions is holden in any circuit , by virtue of the king's commission directed to certain judges of parliament ; secondly , those in which the peers of france hold once or twice a year their courts of faught justice ; all other courts being in the mean time silent . see touching this their loyscean de seigniors . to come back to england , and our own grand-days , i see some difference in accounting of them : durandus in his first chapter , and seventh book reckoneth the purification , ascension and st john baptist , to be grand-days , not mentioning all-saints ; but both he in his th . chapter , and belethus in his — do call it festum maximum & generale , being not onely the feast of apostles and martyrs , but of the trinity , angels and confessours , as durandus termeth it . and that honour and duty quod in singulis valet , potentiùs valebit in conjunctis . as for the feast of all-souls , neither durandus , nor belethus , nor any ancient of those times ( for they lived above . years since ) do record it for a festival . but my country-man walsingham the monk of st. albans sayth , that simon archbishop of canterbury in the year . at a provincial council holden at london , did ordain , a quòd die parasceue & in commemoratione omnium animarum ab omni servili opere cessaretur . surely he mistook it ; for neither is it so mention'd in lindewood , reciting that canon , nor in the ancient copy of the council it self , where the two feasts canonized by him are the parasceue and the conception of the blessed virgin. yet doubtless , whensoever it was instituted it was a great feast with us , though no where else . for the old primer eboracensis ecclesiae , doth not onely set it down in the kalendar for a double feast , but appointeth for it the whole service , with the nine lessons ; for it is as a feast of the trinity . and though neither the statute of edward the . nor our church at this day doth receive it ; yet being formerly a vacation-day ( as it seemeth ) our judges still forbear to sit upon it , and have not hitherto made it a day in court , though deprived of festival rites , and therefore neither graced with robes , nor feasting . the feast also of st. peter and paul on the th . of june was a double feast , yet it is now become single , and our judges sit upon it . i confess i have not found the reason , unless that by canonizing st. paul and so leaving st. peter single , we allow him no prerogative above the other apostles , lest it should give colour for his primacy ; for to st. paul , as one born out of time , we allow no festival , either in the statute of edward . or in the almanacks and kalendars of our church . and why st. peter hath it not is the more observable , for that he not onely is deprived of the ancient dignity of his apostleship , contrary to the canons ( as the other are ; ) but of the privilege given him in that place by pope nicholas the d . in a bull to edward the confessour , as being patron of the paroch and dedication of westminster , where the terms are kept , and where by right thereof this day was also privileged from court-business . other festivals i enquire not after , as of st. dunstan and the rest that stand rubricate in old kalendars ; they being abrogated by old canons of our own church , or the statute of edw. . whereof i must note by the way that i find it repealed by queen mary , but not revived by queen elizabeth , or since . it seemeth that the statute of the . and . edw. cap. . notwithstanding the repeal of it amongst a multitude of others by queen mary , anno . sessione . cap. . is revived again , though not by queen elizabeth , yet by ● jacobi cap. . in these words ; that an act made in the first year of the reign of queen mary , intituled an act for the repeal of certain statutes made in the time of king edw. the . shall stand repealed . i am carried from the brevity i intended , yet all this lyeth in my way ; nor is it out of it to speak a word of st. george's - day , which sometimes falleth in easter-term , and is kept in the court royal with great solemnity , but not in the court judicial . though he stood before in the kalendar , and was the english patron of elder time , yet h. chichley , archbishop of canterbury gave him his greatness by canonizing his day to be a double feast and grand day , as well among the clergy as laity ; and that both the one and the other repairing to their churches should celebrate it ( as christmas-day ) free from servile-work , in ardent prayers for safety of the king and kingdom . the occasion of this constitution was , to excite k. henry the th . being upon his expedition for normandy ; and this , among many holy-days , was abolished by the stat. of . and . of edw. . yet it being the festival of the knights of the garter , it was provided in the * statute , that the knights might celebrate it on the . . and th . of april . other feasts there were of this nature ; as that of st. winifred on the d . of november , which is in effect no day of sitting , but applyed to the pricking of sheriffs . these are vanished , and in their room we have one new memorable day of intermitting court and law-business for a little in the morning , whilst the judges in their robes go solemnly to the great church at westminster on the th . of november yearly , to give god thanks for our great deliverance from the powder-treason , and hear a sermon touching it , which done they return to their benches . this was instituted by act of parliament . jacobi , cap. . and it is of the kind of those ferial days , which being ordained by the emperours , not by the popes , are in canon and civil law called feriati dies repentini . i will go no farther among the tedious subtilties of distinguishing days ; i have not been matriculated in the court of rome : and i confess i neither do nor can explain many objections and contrarieties that may be gathered in these passages . some oedipus or ariadne must help me out . chap. iii. why some law-business may be done on days exempted . in the mean time let us see , why some law-business may be done on days exempted , and sometimes on sunday it self , notwithstanding any thing above mentioned . for as in term time some days are exempted from term business , and some portion of the day from sitting in courts ; so in the vacation time and days exempted , some law business may be performed by express permission of the canon-law , according to that of the a poet in the georgicks , quippe etiam festis quaedam exercere diebus fas & jura sinunt — the synod of medard admitteth matters de pace & concordia : the laws of hen. . matters of concord and doing fealty to the lord. the decree of gregory the ninth , in cases of necessity , and doing piety , according to that of b prosper , non recto servat legalia sabbata cultu , qui pietatis opus credit in his vetitum . the rule is verified by our saviour's healing on the sabbath day . out of these and such other authorities of the laws ecclesiastical and civil , cited in the glosses , the canonists have collected these cases , wherein judges may proceed legally upon the days prohibited , and doe the things here next following . for matters of peace and concord , by reason whereof our judges take the acknowledgment of fines , statutes , recognizances , &c. upon any day , even the sabbath it self ; ( though it were better then to be forborn . ) for suppressing of traytors , thieves , and notorious offenders , which may otherwise trouble the peace of the commonwealth , and undoe the kingdom . for manumission of bondmen : a work of piety . for saving that which otherwise would perish : a work of necessity . for doing that , which , time overslipt , cannot be done : as for making appeals within the time limitted , &c. for taking the benefit of a witness that otherwise would be lost , as by death or departure . for making the son sui juris : as if , amongst us , a lord should discharge a ward of wardship . all which are expressed in these verses ; haec faciunt causas festis tractare diebus , pax , scelus admissum , manumissio , res peritura , terminus expirans , mora festi abesse volentis , cumque potestatis patriae jus filius exit . or thus according to panormitanus ; ratione appellationis , pacis , necessitatis , celeritatis , pietatis , matrimonii , latrocinii , & ubicunque in mor a promptum est periculum . so likewise by consent of parties upon dies feriati minùs solennes , viz. harvest , hayseed , &c. as we have said before . and divers others there are . see the a glosses . chap. iv. why the end of michaelmas-term is sometimes holden in advent ; and the octaves of hilary in septuagessima . but the terms sometimes extend themselves into the days of the church which we call vacation ; as when advent sunday falleth on the th of november , then michaelmas-term borroweth the day after out of advent ; and when septuagessima followeth suddenly upon the purification , hilary-term not onely usurpeth upon it and sexagessima ( which by the president of the church of rome here before mention'd it may do ) but also upon quinquagessima , shrove-tuesday , and quadragessima it self ; for all which there is matter enough in one place or a other already shewn . yet it is farther countenanced by the statute of ed. . cap. . where it is thus provided ; forasmuch as it is great charity to doe right to all men at all times ( when need shall be ; ) by assent of all the prelates it was provided , that assizes of novel disseisin , mortdauncester , and darrain presentment , should be taken in advent , septuagessima and lent , even as well as inquests may be taken , and that at the special request of the king made unto the bishops . where it is to be noted , that inquisitions might be taken before this statute within the days prohibited , or church time , and that this licence extended but to particulars therein mentioned . chap. v. why assizes are holden in lent. it seemeth that by virtue of this statute , or some other dispensation from the bishops assizes began first to be holden in lent , contrary to the canons . i find in an ancient manuscript of the monastery of st. albans a dispensation of this kind thus entituled ; licentia concess . justic. reg. de assistenend . sacro tempore non obstante . pateat universis per praesentes nos richardum ( miseratione divinâ ) abbatem monasterii sancti albani , licentiam & potestatem authoritate praesentium dedisse dilecto nobis in christo domino johanni shardlow & sociis ejus justic. dom. regis assisas apud barnet ( nostrae jurisdictionis exemptae ) die lunae proximo ante festum s. ambrosii capiendas , juxta formam , vim & effectum brevis domini regis inde iis directi . in cujus , &c. anno domini , &c. sub magno sigillo . whether this was before or after the statute it appeareth not ; it may seem before , or that otherwise it had been needless . but i find a shardlow to be a justice of oier in pickering forest , aug. an. . ed. . if it were after , it seemeth the writ to the justices extended to somewhat out of the statute , and that this licence was obtained in majorem cautelam . but to conclude , although we find not the reason of things done in ancient ages , yet we may be sure nothing was done against the rule of the church without special licence and dispensation . the feast of st. ambrose mention'd in the licence was on the fourth of april , which commonly is about a week or two before easter . and the abbat of st. alban , having exempt jurisdiction within the province of canterbury , granteth the dispensation to hold assizes in tempore sacro , as the rubrick explaineth it , lest the words [ nostrae jurisdictionis exemptae ] might be applied to some layick franchise : i assure my self there are many of this kind , if they might come to light . chap. vi. of the returns . of the returns i will not venture to speak much , but nothing at all of essoins and exception-days , for that draweth nearer to the faculty of lawyers , wherein i mean not to be too busie . the returns are set days in every term appointed to the sheriffs , for certifying the courts what they have done , in execution of the writs they received from them . and i take it , that in old time they were the ordinary days set to the defendants for appearance , every one of them being a se'night after another , to the end that the defendant according to his distance from the place where he was to appear , might have one , two , three or more of these returns , that is , so many weeks for his appearance , as he was counties in distance from the court where he was to appear . this is verified by the law of * ethelred the saxon king in case of vouching upon trover . gif he cenne ofer an scira . haebbe ân ƿucena fyrst ; gif he cenne ofer tra scira habbe tra ƿucena fyrst ; gif he cenne ofer iii. scira . haebbe iii. ƿucena fyrst ; ofer eall sƿa fela scira . sƿa he cenne . haebbe sƿa feala ƿucena fyrst ; if the vouchee dwell one shire off , let him at first have one week ; if he dwell two shires off , let him have two weeks ; if he dwell three shires off , let him have three weeks ; and for so many shires as he dwelleth off , let him have so many weeks . the law of a henry the first is somewhat more particular ; qui residens est ad domum suam summoniri debet de placito quolibet cum testibus . et si domi non est idem dicatur vel dapifero , vel denique familiae suae liberè denuncietur ; si in eodem comitatu sit , inde ad septem dies terminum habeat ; si in alia sit . dierum terminum habeat ; & si in tertio comitatu sit , . hebdomadae ; si in quarto , quartae hebdomadae , & ultrà non procedit ubicunque fuerit in anglia , nisi competens eum detineat * soinius ; si ultra mare est . hebdomadas habeat & unum diem ad accessum & recessum maris , nisi vel occupatio servitii regis , vel ipsius aegritudo , vel b tempestas , vel competens aliquod amplius respectet . the † statute of a marlebridge cap. . soundeth to this purpose ; in b assisis autem ultimae praesentationis & in placito quare impedit de ecclesiis vacantibus dentur dies de quindena in quindenam , vel de tribus septimanis in tres septimanas , prout locus fuerit propinquus vel remotus . and again , cap. . sed si vocatus , &c. ( ad warrantum coram justiciar . itinerantibus ) fuerit infra comitatum , tunc injungatur vicecomiti , quòd ipsum infra tertium diem vel quartum ( secundùm locorum distantiam ) faciat venire sicut in itinere justiciar , fieri consuevit . et si extra comitatum maneat , tunc rationabilem habeat summonitionem . dierum ad minùs secundùm discretionem justiciar . & legem communem . there was also another use of returns , as appeareth by the reformed customary of normandy , artic. th . some of them belonged to pleas of goods and chattels , which we call personal actions , as those of octab. some to pleas of land , and real actions , as those of quindena to quindena . nul n'est tenu de respondere de son heretage en mavidre tems que de quinizanie in quinizanie . the more solemn actions had the more solemn returns , as we see by the * stat. dies communes in banco , which i leave to my masters of the law. i will not speak of the returns particularly , more than that octab ▪ is sometimes reckon'd by . days , sometimes by ; by . excluding the feast from which it is counted ; by . including it . and the word is borrowed from the constitutions of the church , where the seven days following easter were appointed to be ferial-days ( as we have shewed before ) in imitation of the seven days azymorum , following the passover in the levitical law. but in this ●●nner octab. trinitatis always includeth nine days , reckoning trinity-sunday for one , by reason the just octabis falleth on the sunday following , which being no day in court , putteth off the return till the next day after , making munday always taken for the true octab. unless you will count these two days for no more than one , as the * stat. de anno bissextili in the like case hath ordained . chap. vii . of the quarta dies post . touching the quartam diem post allowed to the defendant for his appearance after the day of return , it is derived from the ancient saxon , salique , french and german laws , where it was ordained , that the plaintiff should per triduum seu amplius adversarium expectare , usque ad occasum solis ( which they called sol satire , ) as appeareth abundantly in their laws , and in the formular of marcellus , as bignonius notes upon the same . to which also may be added that which occurreth in gratian cap. biduum vel triduum . but the original proceedeth from the ancient custome of the germans mentioned by tacitus ; † illud ex libertate vitium quòd non simul nec jussi conveniunt , sed & alter & tertius dies cunctatione coeuntium absumitur . he saith , ex libertate , because that to come at a peremptory time was a note of servitude , which the germans despised . chap. viii . why i have used so much canon and foreign law in the discourse , with an incursion into the original of our laws . i have used much canon and some other foreign laws in this discourse , yet , i take it , not impertinently , for as the western nations are , for the most part , deduced from the germans , so in ancient times there was a great agreement and affinity in their laws . — facies non omnibus una , nec diversa tamen , qualem decet esse sororum . they that look into the laws of our english saxons , of the saliques , french , almayns , ripurians , bavarians , longobards , and other german nations , about . years since , shall easily find , that out of them , and many other manners , rites and customs of the saxons and germans is the first part and foundation of our laws , commonly called the laws of edward the confessour , and common law. two other parts principally ( as from two pole stars ) take their direction from the canon-law and the laws of our brethren the longobards ( descending from saxon linage as well as we ) called otherwise the feodal-law , received generally through all europe . for in matters concerning the church and churchmen , legitimation , matrimony , wills , testaments , adultery , diffamation , oaths , perjury , days of law , days of vacation , wager of laws , and many other things , it proceeded , sometimes wholly , sometimes for the greater part , by the rules and precepts of the canon-law . and in matters touching inheritance , fees , tenures by knights service , rents , escheats , dower of the third part , fines , felony , forfeiture , trial by battail , &c. from the feodal-law chiefly ; as those that reade the books of those laws collected by obertus and gerardus may see apparently . though we and divers other nations ( according as befitteth every one in their particular ) do in many things vary from them ; which obertus confesseth to be requisite , and to happen often among the longobards themselves . i wish some worthy lawyer would reade them diligently , and shew the several heads from whence these of ours were taken . they beyond the seas are diligent in this kind , but we are all for profit and lucrando pane. another great portion of our common law is derived from the civil ( unless we will say that the civil-law is dervived from ours ; ) for dr. cowell , who hath learnedly travelled in comparing and parallelling of them , affirmeth , that no law of any christian nation whatsoever , approacheth nearer to the civil-law than this of ours . yet he saith that all of them generali hujus disciplinae aequitate temperantur , & quasi condiuntur . had he not said it , his book it self , intituled , institutiones juris anglicani ad methodum & seriem institutionum imperialium compositae & digestae , would demonstrate it : which bracton also above . years before right well understanding , not onely citeth the digests and books of the civil-law in many places for want of our common-law , but in handling our law persueth the method , phrase and matter of justinian's institutes of the civil-law . when and how these several parts were brought into our common-law is neither easily nor definitively to be expressed . those no-doubt of the canon-law by the prevalency of the clergy in their several ages , those of the feodal by military princes , at , and shortly after the conquest . and those of civil-law by such of our reverend judges and sages of ancient time , as for justice and knowledge sake sought instruction thence , when they found no rule at home to guide their judgments by . for i suppose they in those days judged many things , ex aequo & bono , and that their judgments after as responsa prudentium among the romans , and the codex theodosianus became presidents of law unto posterity . as for the parts given unto common-law out of the constitutions of our kings since the conquest , and before magna charta ; i refer them ( as they properly belong ) to our statute law , though our lawyers do reckon them ordinarily for common-law . but among these various heads of our law , i deduce none from the scots , yet i confess that if those laws of theirs , which they ascribe to malcolm , the second , who lived about years before the conquest , be of that antiquity , ( which i cannot but question ) and that our book called glanvill be wholly in effect taken out of the book of their law verbatim , for the greatest part , called regiam majestatem , ( for they pretend that to be elder than our glanvill ; i must ( i say ) ingenuously confess , that the greatest part or portion of our law is come from scotland , which none i think versed either in story or antiquities will or can admit . to come therefore to the point ; if my opinion be any thing , i think the foundation of our laws to be laid by our german anestours , but built upon and polished by materials taken from the canon law and civil law. and under the capacious name of germans , i not onely intend our saxons , but the ancient french and saliques ; not excluding from that fraternity the norwegians , danes and normans . and let it not more mislike us to take our laws from the noble germans , a principal people of europe , than it did the conquering romans to take theirs from greece , or the learned grecians theirs from the hebrews . it is not credible that the britains should be the authours of them ; or that their laws after so many transmutations of people and government , but especially after the expulsion ( in a manner ) of their nation , or at least of their nobility , gentry and freemen , the abolishing of their language , and the cessation of all commerce with them , should remain or be taken up by the conquering enemy , who scarcely suffered one town in a county to be called as they named it , or one english word almost , ( that i yet have learned ) to creep into their language . admit that much of their servile and base people remained pleased perhaps as well with their new lords as with their old ; can we think that the saxons should take either laws or manners , or form of government from them ? but more expresly seneca speaking of claudius the emperour 's having made an absolute conquest of this island . * jussit & ipsum nova romanae jura securis tremere oceanum . in th' ocean isle new laws he set , which from the roman axe were fet . and more plainly herodian , speaking of severus the emperour's going on t of this island , * he left ( saith he ) behind him in that part of the island subject to the romans his youngest son geta , to administer law and the civil affairs thereof , and some of his ancient friends to be his councellours , taking his eldest son antonius for his wars against the barbarians . when the romans conquer'd this land , they neither removed the inhabitants nor brought any foreigners upon them , other than ( to govern and keep them in obedience ) some legions of souldiers , and small colonies . yet that they made an alteration of their laws , we may see in the scripture by the example of judaea . for though pompey obtained the kingdom there , rather by the confederacy with hyrcanus , than by right of conquest , ( and therefore suffer'd them to enjoy their rites of religion , with the liberties of most of their cities ; ) yet it being reduced into a province ( as this of ours was ) their laws were so changed , as that , by their own confession , john . . it was not lawfull for them to put any man to death . therefore our saviour and the two thieves were judged , and suffer'd upon the cross after the roman manner , not according to the laws of the jews , ( for their law never inflicted the cross upon any offender ) and the punishment of blasphemy wherewith they charged christ was stoning ; and the punishment of theft a quadruple restitution , or bondage in default thereof . as for the stoning of stephen , it was not judicial but tumultuous , an act of fury , and against law : in which course also they thought to have murthered st. paul , had not lysias prevented them , by sending him to his legal trial before caesar's judgment seat. by this we may conceive how the romans dealt with the britains touching their laws ; and the story of saint alban and amphybalus somewhat sheweth it : but what laws soever the romans made in britain , the saxons doubtless swept them all away , with the britains . there is certain proof of it ; for antonius made a constitution , that all nations under the roman empire should be called romans , and this was done when the northern people brake into the lower parts of europe , and made their habitation there . but more plainly seneca speaking of claudius the emperour 's having conquer'd this island , as above ; jussit & ipsum nova romanae jura securis tremere oceanum . in th' ocean isle new laws he set , which from the roman axe were fet . the old inhabitants , whom they expelled not but lived mingled with , were still called romans ; as we see in the ancient laws of the saliques , and burgundians , in cassiodorus and others , and their laws distinguished by the titles of lex barbara , and lex romana . but here in britain after the saxons had conquer'd , we never hear nor find any mention of lex romana , or of any roman : which sheweth , that both that , and the laws of the britains were expelled and driven away together , or that of the romans with the romans , and that of the britains with the britains . what the laws of the britains were , it remains at this day to be seen by a model of them in an ancient manuscript under the title of * the laws of hoel dha , ( that is hoel the good ; ) nothing consonant to these of ours at this day , or those of the saxons in time past . but we find by the red book in the exchequer , that the laws of hen. . do so concur in many things with them of the other nations we speak of , that sometimes he not onely citeth the salique law , and the rubuarian or belgique by name , but deduceth much of the text verbatim from them . and we find also a great multitude of words of art , names of offices , officers and ministers in our law , common in old time to the germans , french , saliques , longobards , and other nations , as well as to our saxons , danes and normans ; but not one to my knowledge that riseth from the british tongue , nor do we , to my knowledge , retain any law , rite or custome of the ancient britains , which we received not from the saxons or germans , as used also by them of old , before they came into britain . for these few words that are found in our law chirographer , protonotary , &c. whereby some argue the antiquity of our law to be from the druides , whom caesar and pliny report to have used the greek tongue , it is doubtless , that they come to us from the civil lawyers , and the one of them being a mongrel , half greek and half latine , could not descend from the druides , who had neither knowledge nor use of the latine tongue . they therefore that fetch our laws from brutus , multnutius , the druides , or any other brutish or british inhabitants here of old , affirming that in all the times of these several nations , ( viz. britains , romans , saxons , danes and normans ) and of their kings , this realm was still ruled with the self same customes that it is now govern'd withall ; doe like them that make the arcadians to be elder than the moon , and the god terminus to be so fixed on the capitoline-hill , as neither mattocks nor spades , nor all the power of men or of other gods , could remove him from the place he stood in . and thus i end . finis . notes, typically marginal, from the original text notes for div a -e a deinde constituit [ guilielmus conquaestor ] ut quater quotannis , &c. lib. . p. . l. . &c. definition . notes for div a -e a see sect. . cap. . notes for div a -e greeks . † every month had about . more or less of them , so called because on them the prytanaean magistrates might hold court. * so called from the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , where their business was to sit onely on things inanimate , as when a peice of stone , timber or iron , &c. fell on a man , if the party that flung it were not known , sentence was past on that thing which slew him ; and the masters of this court were to see that thing cast out of the territories of athens . see the attick antiq. l. . chap. . sect. . † the month february , or , as others would have it march , when sacrifices were most usually offer'd to the goddess diana , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ab 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , cognomen dianae , quod est , jaculis cervos figens . romans . * lib. de moribus germ. cap. . † de bello gallico lib. ● . † de rep. angl. lib. . * lib. . a caus. . quaest . . c. . * lib. . cap. . à benedict . levit● , † bin. tom. . part. . sect. . circa annum christi . * concil . tom. . part . . pag. . in istius concil . cap. . † decret . cau. . quaest . c . * al. septuagessimâ . † cau. . ● . ca , . † cau. . q. . c. . legum cap. . * legum alured cap. . vide foedus eavardi & gu●●urni regum cap. . † see the aforesaid . chapter of the laws of k. alured . the synod of eanham . a 't was held between the years . and . see the authour's conc. britan. tom. ● . pag. . b the word synod here signifies more than council , not as 't is usually restrained to that of the clergy onely . c concil . eanham . can. . c concil . eanham . can. . c concil . eanham . can. . d can . e can. . f can. . canuti leg's cap. . a mat. . . mark. . . b leges ed. conf. c. . * sect. . a in hen. ● . pag. . b legum anglo — saxon. pag. . c custom : cap. . d lib. . c. . lib. . c. . . e lib. . 〈◊〉 . . a alii legunt . singulo . rum . b misi primo ] al. pro. c al. examinationis . * anno dom. . † hist. nov. lib. . pag. . c in hen. . pag. . * lib. . cap. . e dial. de scacc. hilary-term . a pag. . lin. . a cod. lib. . tit. de feriis . cap. . b tit. de feriis . ca. . c cau. . quaest . . d silvarum lib. . carm. . quod inscribitur . ad victorium marcellum . sam. . . sam. . . * swaiumote or swanimote , ( from the saxon sƿang i. e. a country clown or free holder , and mot or gemot conventus ) is a court of free holders within the forest. see hen. . c. . b lib. . cap. . * before the abbreviation by . cat. . cap. . a dial. lib. . cap. . * utas ] i. e. octava , the eighth day after any term or feast . * anno . in which year this tract was written . notes for div a -e * exod. . . a hist. lib. . . b cap. . . a tit. b lib. cau. c archaed . verb. comes cap. . . d et alia cap. car. . . * ed. . cap. . a an. . & . edv. . cap. . a lev. . , . b ex. . , . lev. . . * tabien . feriae sect. . why on some festivals , and not on others . the differences of ●●stivals . a vide duraudi lib. . c. . n . b durand . lib . ca. . b rast excom . . c belethus explicat . cap. . grand days in france . grand days in england . a tho. walsingham , hist. angl. pag. the feast of st. peter and st. paul. st. george ' s day . * parag . . st. winifred . the th . of november . a virgil. georg. lib. . v. , &c. b lib. ep. a cau. . q. . tit. de feriis c. . a as an. . . & . . hoveden p. . a in com . ejus . * leges ethelredi cap. . a legum hen. . cap. . * sonius m : ss . seld. b m : ss . cod. l. intempestas . † this statute was published anno. . hen. . anno. salut . . a the same with marleborough in wilts , famous for nothing more than that this parliament was holden there . so coke institut . part . fol. . b coke ut suprà fol. . hath it thus , sed si warrantus ille fuerit infra comitatum , tunc , &c. * anno. . hen. . al●ered by the statute of . hen. . cap. . * anno . hen. . † lib. de morib . ger. manorum cap. . * senecs philosoph . de morte cl. caesaris . * 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 &c. herodiani hist. lib. . cap. . * these laws were made by hoel dha king of wales , about the year . and since the writing of this tract have been published to the world by our authour himself , in the first tome of his concilia britannica , pag. . ecclesiastical cases relating to the duties and rights of the parochial clergy stated and resolved according to the principles of conscience and law / by the right reverend father in god, edward, lord bishop of worcester. stillingfleet, edward, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) ecclesiastical cases relating to the duties and rights of the parochial clergy stated and resolved according to the principles of conscience and law / by the right reverend father in god, edward, lord bishop of worcester. stillingfleet, edward, - . xxvii, [ ], p. printed by j.h. for henry mortlock.., london : . reproduction of original in the union theological seminary library, new york. includes bibliographical references. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng ecclesiastical law -- england. law reports, digests, etc. -- england. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - rina kor sampled and proofread - rina kor text and markup reviewed and edited - pfs batch review (qc) and xml conversion ecclesiastical cases relating to the duties and rights of the parochial clergy , stated and resolved according to the principles of conscience and law : by the right reverend father in god , edward , lord bishop of worcester . london , printed by i. h. for henry mortlock at the phoenix in st. paul's church-yard , . to the reverend clergy of the diocese of worcester . my brethren , the following discourses do of right belong to you ; the substance of them being contained in what i delivered to you in several times and places , in the course of my visitations : in which i endeavoured to lay open the nature and dignity of your function , the rules you are to observe in the discharge of it , and to state and resolve the most important cases which relate to your duties and rights , according to the principles both of law and conscience . for i observed that some had spoken very well of the general nature of the ecclesiastical function , without a particular regard to the limitations of the exercise of it by our laws . others had endeavoured to give advice and counsel in point of law , who meddle not with the obligation of conscience . and therefore i thought it necessary to joyn both these together , that you might have a clear and distinct view of your duties in both respects . for in a matter of positive institution , where only the general duties are prescribed in scripture , and the bounds of the exercise of them depend upon the laws of the land , i could not see how any person could satisfie himself in the discharge of his duty , without a regard to both . for the care of souls in general , is a matter of wonderful weight and importance , and can never be sufficiently considered by those who are concerned in it . but no man among us takes upon him an indefinite care of souls , without regard to persons or places ; for that would produce confusion and endless scruples , and perplexities of conscience about the nature and obligation to particular duties , which cannot be prevented or removed without a right understanding the different respect all that have taken our holy function upon them , do stand in both to the church in general , and to that particular cure of souls which they are admitted to . the best way i know to represent them , is to consider the case of dominion and property ; and how far the vniversal obligation of mankind to promote each others good , is consistent with the care of their own and families welfare . adam had in himself the entire and original dominion over all those things , which after became the subject of particular property ; when his posterity found it necessary to make and allow several shares and allotments to distinct families , so as they were not to incroach , or break in upon one another . but the law of nature did not prescribe the way and method of partition , but left that to occupancy or compact : and so the heads of families upon their settlement in any countrey , had a twofold obligation upon them ; the first was to preserve the interest of the whole body , to which they still were bound , and were to shew it upon such occasions as required it . the next was to take particular care of these shares which belonged to themselves , so as to improve them for their service , and to protect them from the invasion of others . and although this division of property was not made by any antecedent law , yet being once made , and so useful to mankind , the violation of it , by taking that which is anothers right , is a manifest violation of the law of nature . i do not think , that the distribution of ecclesiastical cures , for the greater benefit of the people , is of so strict a nature ; because the matter of property doth not extend to this case in such a manner . but since an vniversal good is carried on by such a division far better than it could be without it , there is an obligation lying on all persons who regard it , to preserve that order which conduces to so good an end. and i cannot see how any persons can better justifie the breach of parochial communion as such , than others can justifie the altering the bounds of mens rights and properties , because they apprehend that the common good may be best promoted by returning to the first community of all things . if our blessed saviour , or his holy apostles in the first founding of churches , had determined the number of persons , or fixed the bounds of places within which those who were ordained to so holy a function , were to take care of the souls committed to them , there could have been no dispute about it among those who owned their authority . but their business was to lay down the qualifications of such as were fit to be imployed in it ; to set before them the nature of their duties , and the account they must give of the discharge of them ; and to exhort all such as under took it to a watchfulness , and diligence in their places ; but they never go about to limit the precincts , within which they were to exercise the duties incumbent upon them . when churches were first planted in several countries , there could be no such things expected as parochial divisions ; for these were the consequents of the general spreading of christianity among the people . as is evident in the best account we have of the settlement of the parochial clergy among us , after christianity was received by the saxons . which was not done all at once , but by several steps and degrees . it cannot be denied by any , that are conversant in our histories , that the nation was gradually converted from paganism by the succesful endeavours of some bishops and their clergy in the several parts of england . not by commission from one person ( as is commonly supposed ) but several bishops came from several places , and applied themselves to this excellent work , and god gave them considerable success in it . thus bizinus did great service among the west saxons ; and felix the burgundian among the east-saxons ; and the northern bishops in the midland-parts , as well as augustin and his companions in the kingdom of kent . and in these midland-parts , as christianity increased , so the bishops sees were multiplied ( five out of one ) and placed in the most convenient distances for the further inlarging and establishing christianity among the people . the bishops were resident in their own sees , and had their clergy then about them , whom they sent abroad , as they saw cause , to those places where they had the fairest hopes of success . and according thereto they either continued or removed them , having yet no fixed cures or titles . all the first titles were no other than being entred in the bishops register , as of his clergy , from which relation none could discharge himself , without the bishop's consent . but as yet the clergy had no titles to any particular places , there being no fixed bounds of parishes , wherein any persons were obliged to be resident for the better discharge of their duties . this state of an vnfixed and itinerant clergy was soon found to be very inconvenient ; and therefore all incouragement was given , where christianity most prevailed , for the building churches at a convenient distance from the cathedral , and setling a number of presbyters together there , which were after called collegiate-churches ; and the great and devout men of that time gave them liberal endowments that they might the better attend the service of god there , and in the countrey about them . but after that the several parts grew to be more populous , and lords of manors , for the conveniency of themselves and their tenants , were willing to erect churches within their precincts , laws were then made , that they might detain one share of the tithes for the supply of this new church ; the other two remaining due to the mother church . and i can find nothing like any allowance for the lords of manors to appropriate the other two parts as they thought fit . for those manors themselves were but parcels of larger parishes ; and the tithes were due from those estates , which were no part of their manors , and therefore they had nothing to do with them . but after the norman invasion , the poor parochial clergy being saxons , and the nobility and bishops normans , they regarded not how much they reduced the inferiour clergy , to enrich the monasteries belonging to the normans , either at home or abroad . and this i take to be the true reason of the multitude of appropriations of two thirds of the tithes in the norman times , and too often with the consent of the bishops , who ought to have shewed more regard to the interest of the parochial clergy than they generally did . but of this i have discoursed more at large in one of the following cases . in the latter end of the saxon times , if we believe those called the confessors laws , after all the danish devastations , there were three or four churches where there had been but one before . by which it appears that the parochial clergy were numerous before the conquest . and within this diocess , in two deanaries of it , there are to be found in doomsday-book above twenty parish-churches : in the deanary of warwick , ten ; and in the deanary of kingstone , fifteen : but of the former seven were appropriated in the norman times ; and of the latter , ten ; by which we may see to how low a condition they then brought the parochial clergy . one church in the former deanary i find built in that time , and that was at exhal ; which was before a chapel to salford , but was erected in the time of h. . by the lord of the manor and freeholders , who gave the glebe and tithes , as appears by the confirmation of simon bishop of worcester . many other parochial churches , i doubt not , were built and endowed after the same manner , although the records of them are lost . and as churches were new erected , the parochial bounds were fixed , that the people might certainly know whither they were to resort for divine worship , who were bound to attend them as part of their charge , from whose hands they were to receive the holy sacraments , and whose advice and counsel they were to take in matters which related to the salvation of their souls . now here lies the main difficulty with some people ; they cannot think that parochial bounds are to determine them in what concerns the good of their souls ; but if they can edifie more by the parts and gifts of another , they conclude , that it is their duty to forsake their own minister , and go to such a one as they like . i meddle not with extraordinary occasions of absence , nor with the case of scandalous incumbents , because it is the peoples fault if they be not prosecuted , and the place supplied by better men. but the case , as it ought to be put , is , how far a regard is to be shewed to a constitution so much for the general good , as that of parochial communion is . we do not say , that mens consciences are bound by perambulations , or that it is a sin at any time to go to another parish ; but we say , that a constant fixed parochial communion , tends more to preserve the honour of god , and the religion established among us , to promote peace and vnity among neighbours , and to prevent the mischief of separation . and what advances so good ends , is certainly the best means of edification : which lies not in moving the fansie , or warming the passions , but in what brings men to a due temper of mind , and a holy , peaceable , and unblameable conversation . and as to these excellent ends , it is not only your duty with great zeal and diligence to perswade your people to them ; but to go before them your selves in the practice of them . for they will never have any hearty regard or esteem for what any one says , if they find him to contradict it in the course of his life . suppose it be the peoples fault to shew so little regard to your profession ; yet you are bound to consider how far you may have given too much occasion for it , and their fault can be no excuse for you , if any of your own were the true occasion of theirs . we live in an age wherein the conversations of the clergy are more observed than their doctrines . too many are busie in finding out the faults of the clergy , the better to cover their own ; and among such priest craft is become the most popular argument for their insidelity . if they could once make it appear ; that all religion were nothing but a cheat and imposture of some cunning men for their own advantage , who believed nothing of it themselves ; and that all the business of our profession was to support such a fraud in the world for our own interest , they were very excusable in their most bitter invectives against such priest-craft . for nothing is more to be abhorred by men of ingenuous minds , and natural probity , than to be the instruments of deceiving mankind in so gross a manner . but , thanks be to god , this is very far from being the case among us ; for our profession is built upon the belief of god and providence , the difference of good and evil , and the rewards and punishments of another life . if these things have no foundations , we are certain that the best , and wisest , and most disinterested men in all ages have been in the same fundamental mistakes . and it is now somewhat too late for any persons to set up for sagacity and true iudgment in these matters , above all those of foregoing ages . there is a mighty difference between slight and superficial reasonings , ( although some may be vain enough to cry them up for oracles ) and those which are built on the nature of things , and have born the test of so many ages , and remain still in the same degree of firmness and strength , notwithstanding all the batteries of profane and atheistical wits . for it cannot be denied , that such there have been in former times as well as now ; but that makes more for the advantage of religion , that our modern pretenders are fain to borrow from the old stock ; and scarce any thing worth answering hath been said by them , but hath been often said , and with more force by their masters . and the best philosophers of this age have given up the cause of atheism as indefensible ; so that the being of god and providence seems to be established by a general consent ; and if any secretly be of another mind , they think it not for their reputation to own it . the main pretence now is against revealed religion ; but without offering to shew how so great and considerable a part of mankind as the christian church hath been made up of , came to be so imposed upon , as to a doctrine which advances morality to the greatest height , and gives mankind the most assured hopes of a blessed immortality , when nothing like interest and design as to this world , could be carried on by the first and greatest promoters of it . but we are told in a late complaint made abroad by a friend of our deists ( wherein i am particularly concerned ) that we make objections for them which are most easie to answer , and pass over their most considerable difficulties . which is a very unjust charge , and cannot be made good but by producing those considerable difficulties which we have taken no notice of . for my part , i know of none such : and we make no objections for them ; however , we may think it our duty to lay open the weakness of them , when we are importuned to do it ; which was my case in the treatise i suppose he refers to . if they keep their considerable difficulties to themselves . i know not how we should be able to answer them . but it is the common way in a baffled cause still to pretend , that the main difficulties were not produced . but this is not a proper occasion to insist lon●er on these matters ; my present business is to answer the objection which immediately regards the clergy ; and the summ of it is , that our profession rather hinders than confirms the belief of religion ; because they who plead for what makes for their interest , are always suspected to be swayed more by interest than by reason . to give a full and clear answer to this , we must consider , that however mankind are apt to be swayed by interest , yet the truth and reason of things do not at all depend upon them ; for a thing is not true or false in it self , because it makes for or against a man ; and the measures of judging truth and falshood , are quite of another nature ; and so mens interests come not into consideration . so that in this case they are not to examine whose turn is served , whether such a thing be true or false ; but whether there be sufficient evidence to convince an impartial mind of the truth of it ; for let the reasons be produced by whom they please , the grounds of conviction are the same . if a man in a dispute about surveying a piece of land , which he claimed a right to , should appeal to the elements of geometry in his case , would the evidence be less because he was concerned in the land ? but we proceed farther ; suppose it be for the interest of religion in a nation , for an order of men to be set apart on purpose to attend the services of it ; and that there should be great incouragements for their education ; and a maintenance set apart for their subsistence afterwards , that they may not live in dependance on the humours and uncertain fancies of the people ; how can such a constitution take off from the credibility of that religion which they are to support ? was it any lessening to the authority of the law of moses , that the tribe of levi was so plentifully provided for by god's own appointment ? they were to teach the law to the people in the places where they were dispersed among the several tribes : and suppose it had been then said , why should we believe what you say , when you live by it ? you have cities , and lands , and tithes , and oblations , and dignities among you ; no wonder you set up this law as divine and holy ; but we get nothing by it , but part with a share of our profits to maintain you ? what then ? was the law therefore false , and moses an impostor ? these are hard consequences , but they naturally follow from such a supposition . and if such an inference were not reasonable then , neither will it appear to be so now . but we do not pretend that the parochial settlement of our clergy is by such a divine law as the levitical priesthood was ; but this we do insist upon , that the christian religion being owned and established in the nation , there was a necessary reason from the nature of it , and the obligation to preserve and support it , that there should be an order of men set apart for that end , that they should instruct the people in it , and perform the several offices belonging to it ; and that a sufficient maintenance be allowed them by the law of the land to support them in doing their duties . and i appeal to any men of sense or of common vnderstanding , whether on supposition that our religion is true , these be not very just and reasonable things ? how then can that make a religion suspected to be false , which are very reasonable , supposing it to be true ? if it be true , as most certainly it is , are not they bound to maintain it to be true ? and can it be the less so , because their subsistence depends upon it ? therefore all the impertinent talk of our profession being a trade , can signifie nothing to any men that understand the difference between scarron and euclid , or the way of burlesquing and of demonstration . there is still one common prejudice to be removed , and that is , that too many of those who preach up our religion , as true , do not live as if they believed it to be so . we are very sorry , there should be any occasion given for such a reproach as this ; and we hope there are not so many instances of it , as some would have it believed . woe be to those by whom such offences come . but supposing the instances true , is there any religion in the world , considering the follies and infirmities of mankind , which can secure all the professors of it from acting against the rules of it ? but if such instances are sufficiently proved , there ought to be the greater severity used in such cases ; because religion it self , as well as the honour of our church , suffers so much by them . but it will still be said , that these persons are secret infidels , and believe nothing of what they profess . this is another point , how far bad lives are consistent with sound opinions : some that think that men act consistently , will not allow that bad men can be any other than meer infidels ; but others who consider the prevalency of mens lusts and passions over their reasons , are apt to think that they may retain their good opinions , even when they act contrary to them : but then their consciences fly in their faces , and they condemn themselves for their evil actions . and then these very instances are an argument against infidelity ; for we may justly presume , that they would shake off their fears of another world , if they could . but why should some instances of this nature signifie more against religion , than the many remarkable examples of a godly , righteous and sober life among the clergy , to a stronger confirmation of it ? for they have had greater occasion of searching into all the considerable difficulties about religion , than others can pretend to ; and i do not know any that have imployed most time and pains about it , but have had greater satisfaction as to the truth and excellency of it . thus i have endeavoured to remove the most common prejudices of our times , against our profession . it would now be proper for me to give some particular directions to you , but that is so much the business of the following discourses , that i shall refer you to them ; and commend you to the grace and blessing of almighty god , that you may so carefully discharge your duties in this world , that it may advance your happiness in another . i am your affectionate friend and brother edw. wigorn . hartlebury c. apr. . . errata . preface , pag. viii . lin . . read birinus . p. xii . l. . r. kington . p. . l. . after fraudes add & . p. . l. . r. birinus . p. . l. . r. wulstan . p. . l. . r. flocks they go to . p. . l. . after but , insert to perswade you . p. . l. . for more r. meer . p. . l. . for titles r. tithes . p. . l. . r. a●b●rdus . p. . l. . r. guthrun . p. . l. . for than r. as . the contents . case i. the bishop of worcester's charge to the clergy of his diocess , in his primary visitation , &c. p. . ii. of the nature of the trust committed to the parochial clergy , &c. p. . iii. of the particular duties of the parochial clergy , &c. p. . iv. of the maintenance of the parochial clergy by law , p. . v. of the obligation to observe the ecclesiastical canons and constitutions , &c. p. . to which is annexed a discourse concerning bonds of resignation , &c. a catalogue of books published by the right reverend father in god , edward lord bishop of worcester , and sold by henry mortlock at the phoenix in st. paul's church-yard . a rational account of the grounds of the protestant religion ; being a vindication of the lord archbishop of canterbury's relation of a conference , &c. from the pretended answer of t. c. the second edition . folio . origines britannicae , or the antiquities of the british churches , with a preface concerning some pretended antiquities relating to britain , in vindication of the bishop of st. asaph . folio . irenicum , a weapon-salve for the churches wounds . quarto . origines sacrae : or a rational account of the grounds of christian faith , as to the truth and divine authority of the scriptures , and the matters therein contained . the fifth edition , corrected and amended . quarto . the unreasonableness of separation , or an impartial account of the history , nature and pleas of the present separation from the communion of the church of england . quarto . a discourse concerning the idolatry practised in the church of rome , and the hazard of salvation in the communion of it , in answer to some papers of a revolted protestant , wherein a particular account is given of the fanaticism and divisions of that church . octavo . an answer to several late treatises occasioned by a book , entitled , a discourse concerning the idolatry practised of the church of rome , and the hazard of salvation in the communion of it : part i. octavo . a second discourse in vindication of the protestant grounds of faith , against the pretence of infallibility in the church of rome , in answer to the guide in controversie , by r. h. protestancy without principles , and reason , and religion ; or the certain rule of faith , by e. w. with a particular enquiry into the miracles of the roman church . octavo . an answer to mr. cressy's epistle apologetical to a person of honour , touching his vindication of dr. stillingfleet . octavo . a defence of the discourse concerning the idolatry practised in the church of rome , in answer to a book entitled , catholicks no idolaters . octavo . several conferences between a romish priest , a fanatick chaplain , and a divine of the church of england ; being a full answer to the late dialogues of t. g. octavo . the council of trent examin'd and disprov'd by catholick tradition , in the main points in controversie between us and the church of rome ; with a particular account of the times and occasions of introducing them . a discourse concerning the doctrine of christ's satisfaction ; or the true reasons of his sufferings , with an answer to the socinian objections , and a preface concerning the true state of the controversie about christ's satisfaction . octavo . second edition . a discourse in vindication of the doctrine of the trinity : with an answer to the late socinian objections against it , from scripture , antiquity and reason : and a preface concerning the different explication of the trinity , and the tendency of the present socinian controversie . octavo . second edition . the bishop of worcester's answer to mr. locke's letter concerning some passages relating to his essay of humane understanding , mention'd in the late discourse in vindication of the trinity . octavo . the bishop of worcester's answer to mr. locke's second letter , wherein his notion of idea's is proved to be inconsistent with it self , and with the articles of the christian faith. octavo . sermons preached upon several occasions , in three volumes in octavo . the effigies of the right reverend father in god , edward lord bishop of worcester , engraven on a copper-plate . price d. the bishop of worcester's charge to the clergy of his diocese , in his primary visitation , begun at worcester , september th . . my brethren , this being my primary visitation , i thought it fitting to acquaint my self with the ancient as well as modern practice of episcopal visitations , and as near as i could , to observe the rules prescribed therein , with respect to the clergy , who are now summoned to appear . and i find there were two principal parts in them , a charge and an enquiry . the charge was given by the bishop himself , and was called admonitio episcopi , or allocutio ; wherein he informed them of their duty , and exhorted them to perform it . the enquiry was made according to certain articles drawn out of the canons , which were generally the same ; according to which the iuratores synodi ( as the ancient canonists call them ; or testes synodales ) were to give in their answers upon oath ; which was therefore called iuramentum synodale ; for the bishop's visitation was accounted an episcopal synod . the former of these is my present business ; and i shall take leave to speak my mind freely to you , this first time , concerning several things which i think most useful , and fit to be considered and practised by the clergy of this diocese . for , since it hath pleased god , by his wise and over-ruling providence , ( without my seeking ) to bring me into this station in his church , i shall esteem it the best circumstance of my present condition , if he please to make me an instrument of doing good among you . to this end , i thought it necessary in the first place , most humbly to implore his divine assistance , that i might both rightly understand , and conscientiously perform that great duty which is incumbent upon me ; for without his help , all our thoughts are vain , and our best purposes will be ineffectual . but god is not wanting to those who sincerely endeavour to know , and to do their duty ; and therefore in the next place , i set my self ( as far as my health and other occasions would permit ) to consider the nature and extent of my duty ; with a resolution not to be discouraged , altho i met with difficulties in the performance of it . for such is the state and condition of the world , that no man can design to to do good in it ; but when that crosses the particular interests and inclinations of others , he must expect to meet with as much trouble as their unquiet passions can give him . if we therefore consulted nothing but our own ease , the only way were to let people follow their humours and inclinations , and to be as little concerned as might be , at what they either say or do . for if we go about to rowze and awaken them , and much more to reprove and reform them , we shall soon find them uneasie and impatient ; for few love to hear of their faults , and fewer to amend them . but it is the peculiar honour of the christian religion , to have an order of men set apart , not meerly as priests , to offer sacrifices ( for that all religions have had ) but as preachers of righteousness , to set good and evil before the people committed to their charge ; to inform them of their duties , to reprove them for their miscarriages ; and that , not in order to their shame , but their reformation : which requires not only zeal , but discretion , and a great mixture of courage and prudence , that we may neither fail in doing our duty , nor in the best means of attaining the end of it . if we could reasonably suppose , that all those who are bound to tell others their duties , would certainly do their own , there would be less need of any such office in the church as that of bishops ; who are to inspect , and govern , and visit , and reform those who are to watch over others . but since there may be too great failings even in these ; too great neglect in some , and disorder in others ; too great proneness to faction and schism , and impatience of contradiction from mere equals ; therefore st. ierom himself grants , that to avoid these mischiefs , there was a necessity of a superiour order to presbyters in the church of god ; ad quem omnis ecclesiae cura pertineret , & schismatum semina tollerentur ; as he speaks , even where he seems most to lessen the authority of bishops . but whatever some expressions of his may be , ( when the bishop of ierusalem and the roman deacons came into his head ) his reasons are very much for the advantage of episcopal government . for can any man say more in point of reason for it , than that nothing but faction and disorder followed the government of presbyters , and therefore the whole christian church agreed in the necessity of a higher order , and that the peace and safety of the church depends upon it ; that if it be taken away , nothing but schisms and confusions will follow . i wish those who magnifie s. ierom's authority in this matter , would submit to his reason and authority both , as to the necessity and usefulness of the order of bishops in the church . but beyond this , in several places , he makes the bishops to be successors of the apostles , as well as the rest of the most eminent fathers of the church have done . if the apostolical office , as far as it concerns the care and government of churches , were not to continue after their decease , how came the best , the most learned , the nearest to the apostolical times , to be so wonderfully deceiv'd ? for if the bishops did not succeed by the apostles own appointment , they must be intruders and usurpers of the apostolical function ; and can we imagine the church of god would have so universally consented to it ? besides , the apostles did not die all at once ; but there were successors in several of the apostolical churches , while some of the apostles were living : can we again imagine , those would not have vindicated the right of their own order , and declared to the church , that this office was peculiar to themselves ? the change of the name from apostles to bishops , would not have been sufficient excuse for them ; for the presumption had been as great in the exercise of the power without the name . so that i can see no medium , but that either the primitive bishops did succeed the apostles by their own appointment and approbation , ( which irenaeus expresly affirms , qui ab apostolis ipsis instituti sunt episcopi in ecclesiis ) or else those who governed the apostolical churches after them , out-went diotrephes himself ; for he only rejected those whom the apostles sent ; but these assumed to themselves the exercise of an apostolical authority over the churches planted and setled by them . but to let us see how far the apostles were from thinking that this part of their office was peculiar to themselves , we find them in their own time , as they saw occasion , to appoint others to take care of the government of the churches , within such bounds as they thought fit . thus timothy was appointed by st. paul at ephesus , to examine the qualifications of such as were to be ordained ; and not to lay hands suddenly on any ; to receive accusations , if there were cause , even against elders ; to proceed judicially before two or three witnesses : and if there were reason , to give them a publick rebuke . and that this ought not to be thought a slight matter , he presently adds , i charge thee before god , and the lord iesus christ , and the elect angels , that thou observe these things , without preferring one before another , doing nothing by partiality . here is a very strict and severe charge for the impartial exercise of discipline in the church upon offenders . and although in the epistle to titus , he be only in general required to set in order the things that are wanting , and to ordain elders in every city , as he had appointed him ; yet we are not to suppose , that this power extended not to a iurisdiction over them when he had ordained them . for if any of those whom he ordained ( as believing them qualified according to the apostles rules ) should afterwards demean themselves otherwise , and be self-willed , froward , given to wine , brawlers , covetous , or any way scandalous to the church , can we believe that titus was not as well bound to correct them afterwards , as to examine them before ? and what was this power of ordination and iurisdiction , but the very same which the bishops have exercised ever since the apostles times ? but they who go about to unbishop timothy and titus , may as well unscripture the epistles that were written to them ; and make them only some particular and occasional writings , as they make timothy and titus to have been only some particular and occasional officers . but the christian church preserving these epistles , as of constant and perpetual use , did thereby suppose the same kind of office to continue , for the sake whereof those excellent epistles were written : and we have no greater assurance that these epistles were written by st. paul , than we have that there were bishops to succeed the apostles in the care and government of churches . having said thus much to clear the authority we act by , i now proceed to consider the rules by which we are to govern our selves . every bishop of this church , in the time of his consecration makes a solemn profession , among other things , that he will not only maintain and set forward , as much as lies in him , quietness , love and peace among all men ; but that he will correct and punish such as be unquiet , disobedient , and criminous within his diocese , according to such authority as he hath by god's word , and to him shall be committed by the ordinance of this realm . so that we have two rules to proceed by , viz. the word of god , and the ecclesiastical law of this realm . ( ) by the word of god ; and that requires from us , diligence , and care , and faithfulness , and impartiality , remembring the account we must give , that we may do it with ioy and not with grief . and we are not meerly required to correct and punish , but to warn and instruct , and exhort the persons under our care , to do those things which tend most to the honour of our holy religion , and the church whereof we are members . and for these ends there are some things i shall more particularly recommend to you . ( . ) that you would often consider the solemn charge that was given you , and the profession you made of your resolution to do your duty at your ordination . i find by the provincial constitution of this church , that the bishops were to have their solemn profession read over to them twice in the year , to put them in mind of their duty . and in the legatine constitutions of otho , ( h ▪ . ) the same constitution is renewed , not meerly by a legatine power , but by consent of the archbishops , and bishops of both provinces ; wherein i● is declared , that bishops ought to visi● their diocesses at fit times , correcting and reforming what was amiss , and sowing the word of life in the lords field ; and to put them the more in mind of it , they were twice in the year to have their solemn profession read to them . it seems then , that profession contained these things in it ; or else the reading that could not sti● them up to do these things . what the profession was which presbyters then made at their ordination , we have not so clear an account , but in the same council at oxford , h. . i● is strictly enjoined , that all rector● and vicars should instruct the people committed to their charge , and fee● them , pabulo verbi dei , with the food of god's word ; and it is introduced with that expression , that they might excite the parochial clergy to be more diligent in what was most proper for those times . and if they do it not , they are there called canes muti : and lyndwood bestows many other hard terms upon them , which i shall not mention ; but he saith afterward , those who do it not , are but like idols , which bear the similitude of a man , but do not the offices proper to men. nay , he goes so far as to say , that the spiritual food of god's word is as necessary to the health of the soul , as corporal food is to the health of the body . which words are taken out of a preface to a canon in the decretals de officio iud. ordinarii , inter caetera . but they serve very well to shew how much even in the dark times of popery , they were then convinced of the necessity and usefulness of preaching . these constitutions were slighted so much , that in edw. . the office of preaching was sunk so low , that in a * provincial constitution at that time , great complaint is made of the ignorance and stupidity of the parochial clergy , that they rather made the people worse than better . but at that time the preaching friars had got that work into their hands by particular priviledges , where it is well observed , that they did not go to places which most needed their help , but to cities and corporations , where they found most incouragement . but what remedy was found by this provincial council ? truly , every parochial priest four times a year was bound to read an explication of the creed , ten commandments , the two precepts of charity , the seven works of mercy , the seven deadly sins , the seven principal vertues , and the seven sacraments . this was renewed in the province of york , ( which had distinct provincial constitutions ) in the time of edw. . and here was all they were bound to by these constitutions . but when wickliff and his followers had awakened the people so far , that there was no satisfying them without preaching , then a new provincial constitution was made under arundel , archbishop of canterbury ; and the former constitution was restrained to parochial priests who officiated as curates ; but several others were authorized to preach ; as ( . ) the mendicant friars were said to be authorized iure communi , or rather privilegio speciali , ( but therefore lyndwood saith , it is said to be iure communi , because that privilege is recorded in the text of the canon law ) these were not only allowed to preach in their own churches , but in plateis publicis , saith lyndwood , out of the canon law ( wherein those words were expressed ) and at any hour , unless it were the time of preaching in other churches ; but other orders , as augustinians and carmelites , had no such general license . those preaching friars were a sort of licensed preachers at that time , who had no cures of souls ; but they were then accounted a kind of pastors . for io. de athon . distinguisheth two sorts of pastors ; those who had ecclesiastical offices , and those who had none , but were such only verbo & exemplo ; but they gave very great disturbance to the clergy , as the pope himself confesses in the canon law. ( . ) legal incumbents authorized to preach in their own parishes iure scripto . all persons who had cures of souls , and legal titles , were said to be missi à iure ad locum & populum curae suae , and therefore might preach to their own people without a special license ; but if any one preached in other parts of the diocess , or were a stranger in it , then he was to be examined by the diocesan , and if he were found tam moribus quam scientia idoneus , he might send him to preach to one or more parishes , as he thought meet ; and he was to shew his license to the incumbent of the place , before he was to be permitted to preach , under the episcopal seal . and thus , as far as i can find , the matter stood as to preaching , before the reformation . after it , when the office of ordination was reviewed and brought nearer to the primitive form ; and instead of delivering the chalice and patten , with these words , accipe potestatem offerre deo sacrificium , &c. the bishop delivered the bible with these words , take thou authority to preach the word of god , and to minister the holy sacraments in the congregation , &c. the priests exhortation was made agreeable thereto , wherein he exhorts the persons in the name of our lord jesus christ , to consider the weight and importance of the office and charge they are called to ; not barely to instruct those who are already of christ's flock , but to endeavour the salvation of those who are in the midst of this naughty world. and therefore he perswades and charges them from a due regard to christ , who suffered for his sheep , and to the church of christ , which is so dear to him , to omit no labor , care or diligence in instructing and reforming those who are committed to their charge . and the better to enable them to perform these things , there are some duties especially recommended to them , viz. prayer , and study of the holy scriptures , according to which they are to instruct others , and to order their own lives , and of those who belong to them . and that they might the better attend so great a work , they are required to forsake and set aside ( as much as they may ) all worldly cares and studies , and apply themselves wholly to this one thing , that they may save themselves and them that hear them . after which follows the solemn profession , wherein they undertake to do these things . this is that , my brethren , which i earnestly desire of you , that you would often consider . you are not at liberty now , whether you will do these things or not ; for you are under a most solemn engagement to it . you have put your hands to the plough , and it is too late to think of looking back ; and you all know the husbandman's work is laborious and painful , and continually returning . it is possible after all his pains , the harvest may not answer his expectation ; but yet if he neither plows nor sows , he can expect no return ; if he be idle and careless , and puts off the main of his work to others , can he reasonably look for the same success ? believe it , all our pains are little enough to awake the sleepy and secure sinners , to instruct the ignorant , to reclaim the vitious , to rebuke the profane , to convince the erroneous , to satisfie the doubtful , to confirm the wavering , to recover the lapsed ; and to be useful to all , according to their several circumstances and conditions . it is not to preach a sermon or two in a weeks time to your parishioners , that is the main of your duty ; that is no such difficult task , if men apply their minds as they ought to do to divine matters , and do not spend their retirements in useless studies ; but the great difficulty lies in watching over your flock , i. e. knowing their condition , and applying your selves uitably to them . he that is a stranger to his flock , and only visits them now and then , can never be said to watch over it ; he may watch over the fleeces , but he understands little of the state of his flock , viz. of the distempers they are under , and the remedies proper for them . the casuists say , that the reason why there is no command for personal residence in scripture , is , because the nature of the duty requires it ; for if a person be required to do such things which cannot be done without it , residence is implied . as a pilot to a ship , needs no command to be in his ship ; for how can he do the office of a pilot out of it ? let none think to excuse themselves by saying , that our church only takes them for curates , and that the bishops have the pastoral charge ; for by our old provincial constitutions ( which are still in force so far as they are not repugnant to the law of the land ) even those who have the smallest cures are called pastors ; and lyndwood there notes , that parochialis sacerdos dicitur pastor ; and that not meerly by way of allusion , but in respect of the care of souls . but we need not go so far back . for what is it they are admitted to ? is it not ad curam animarum ? did not they promise in their ordination , to teach the people committed to their care and charge ? the casuists distinguish a threefold cure of souls . . in foro interiori tantum , and this they say is the parochial cure. . in foro exteriori tantum , where there is authority to perform ministerial acts , as to suspend , excommunicate , absolve , ( sine pastorali curâ : ) and this archdeacons have by virtue of their office. . in utroque simul , where there is a special care , together with jurisdiction : this is the bishops . and every one of these , say they , secundum commune ius canonicum , is obliged to residence , i. e. by the common law ecclesiastical ; of which more afterwards . the obligation is to perpetual residence , but as it is in other positive duties , there may other duties intervene , which may take away the present force of it ; as care of health , necessary business , publick service of the king or church , &c. but then we are to observe that no dispensation can justifie a man in point of conscience , unless there be a sufficient cause ; and no custom can be sufficient against the natural equity of the case , whereby every one is bound from the nature of the office he hath undertaken . i confess the case in reason is different , where there is a sufficient provision by another fit person , and approved by those who are to take care that places be well supplied , and where there is not ; but yet , this doth not take off the force of the personal obligation , arising from undertaking the cure themselves , which the ecclesiastical law understands to be , not meerly by promise , but cum effectu , as the canonists speak ; which implies personal residence . not that they are never to be away ; non sic amarè intelligi debet , ut nunquam inde recedat , saith lyndwood ; but these words are to be understood civili modo , as he expresses it , i. e. not without great reason . there must not be , saith he , callida interpretatio , sed talis ut cessent fraudes negligentiae , i. e. there must be no art used to evade the law , nor any gross neglect of it . it 's true , the canonists have distinguished between rectories and vicarages , as to personal residence ; but we are to consider these things . . the canon law strictly obliges every one that hath a parochial cure to perpetual residence , and excepts only two cases , when the living is annexed to a prebend or dignity ; and then he who hath it , is to have a perpetual vicar instituted , with a sufficient maintenance . . after this liberty obtained for dignified persons to have vicars endowed in their places , the point of residence was strictly enjoined to them : and we find in the provincial constitutions a difference made between personatus and vicaria ; but this was still meant of a vicarage endowed . this was in the time of stephen langton , archbishop of canterbury ; and in another constitution he required an oath of personal residence from all such vicars , altho' the place were not above the value of five marks ; which , as appears by lyndwood elsewhere , was then sufficient for maintenance and hospitality . and to cover the shameful dispensations that were commonly granted to the higher clergy , under pretence of the papal power , the poor vicars by a constitution of otho , were bound to take a strict oath of continual residence ; and without it their institution was declared to be null . but even in that case the gloss there saith , that they may be some time absent for the benefit of the church or state ; but not for their own particular advantage . . the obligation in point of conscience remains the same , but dispensing with laws may take away the penalty of non-residence in some cases . ioh. de athon . canon of lincoln , who wrote the glosses on the legatine constitutions , doth not deny , but that rectors are as well bound to residence as vicars ; but these are more strictly tied by their oath ; and because a vicar cannot appoint a vicar , but a parson may . and altho' that name among some be used as a term of reproach , yet in former ages personatus and dignitas were the same thing ; and so used here in england in the time of henry ii. but afterwards it came to be applied to him that had the possession of a parochial benefice in his own immediate right ; and was therefore bound to take care of it . for the obligation must in reason be supposed to go along with the advantage ; however local statutes may have taken off the penalty . ii. when you have thus considered the obligation which lies upon you , to take care of your flock , let me in the next place recommend to you a plain , useful , and practical way of preaching among them . i mean such as is most likely to do good upon them ( which certainly ought to be the just measure of preaching . ) i do not mean therefore a loose and careless way of talking in the pulpit , which will neither profit you , nor those that hear you . he that once gets an ill habit of speaking extempore , will be tempted to continue it by the easiness of it to himself , and the plausibleness of it to less judicious people . there is on the other side , a closeness and strength of reasoning , which is too elaborate for common understandings ; and there is an affected fineness of expression which by no means becomes the pulpit : but it seems to be like stroaking the consciences of people by feathers dipt in oil. and there is a way of putting scripture-phrases together without the sense of them , which those are the most apt to admire , who understand them least : but for those who have not improved their minds by education , the plainest way is certainly the best and hardest , provided , it be not flat , and dry , and incoherent , or desultory , going from one thing to another , without pursuing any particular point home to practice , and applying it to the consciences of the hearers . and give me leave to tell you , that meer general discourses have commonly little effect on the peoples minds ; if any thing moves them , it is particular application as to such things which their consciences are concerned in . and here i must recommend to you the pursuing the design of his majesties letter , which hath been some time since communicated to you ; by it you are required to preach at some times on those particular vices which you observe to be most prevalent in the places you relate to , such as drunkenness , whoredom , swearing , profaning the lord's day , &c. if ever we hope to reform them , you must throughly convince them , that what they do is displeasing to god. and there are two sorts of men you are to deal with , . profane scoffers at religion . these seldom trouble you ; but if any good be to be done upon them , it is by plain and evident proofs of the good and evil of moral actions . for , as long as they think them indifferent , they will never regard what you say , as to the rewards or punishments of them . . stupid and senseless people , whose minds are wholly sunk into the affairs of the world , buying and selling and getting gain . it is a very hard thing to get a thought into them above these matters . and whatever you talk of meer religion , and another life , is like metaphysicks to them ; they understand you not , and take no care to do it : but if you can convince them , that they live in the practice of great sins , which they shall certainly suffer for , if they do not repent , they may possibly be awakened this way ; if not , nothing but immediate grace can work upon them ; which must work on the will , whatever becomes of the understanding . iii. after preaching , let me intreat you to look after catechizing and instructing the youth of your parishes . he that would reform the world to purpose , must begin with the youth ; and train them up betimes , in the ways of religion and virtue . there is far less probability of prevailing on those who have accustomed themselves to vicious habits , and are hardened in their wickedness . it seems strange to some , that considering the shortness of human life , mankind should be so long before they come to maturity ; the best account i know of it , is , that there is so much longer time for the care of their education , to instill the principles of virtue and religion into them , thereby to soften the fierceness , to direct the weakness , to govern the inclinations of mankind . it is truly a sad consideration , that christian parents are so little sensible of their duties , as to the education of their children ; when those who have had only natural reason to direct them , have laid so much weight upon it . without it , plato saith , that mankind grew the most unruly of all creatures . aristotle , that as by nature they are capable of being the best , so being neglected , they become the worst of animals , i. e. when they are brought up without virtue . education and virtue , saith he , is a great thing , yea , it is all in all , and without it they will be much worse than beasts . the main care of the education of children must lie upon parents ; but yet ministers ought not only to put them in mind of their duty , but to assist them all they can , and by publick catechizing , frequently to instruct both those who have not learned , and those who are ashamed to learn any other way . and you must use the best means you can to bring them into an esteem of it ; which is by letting them see , that you do it , not meerly because you are required to do it , but because it is a thing so useful and beneficial to them , and to their children . there is a great deal of difference between peoples being able to talk over a set of phrases , about religious matters , and understanding the true grounds of religion ; which are easiest learned , and understood , and remembred in the short catechetical way . but i am truly sorry to hear , that where the clergy are willing to take pains this way , the people are unwilling to send their children . they would not be unwilling to hear them instructed , as early as might be , in the way to get an estate , but would be very thankful to those who would do them such a kindness ; and therefore it is really a contempt of god and religion , and another world , which makes them so backward to have their children taught the way to it . and methinks those who have any zeal for the reformation , should love and pursue that which came into request with it . indeed the church of rome it self hath been made so sensible of the necessity of it , that even the council of trent doth not only require catechizing children , but the bishops to proceed with ecclesiastical censures against those who neglect it . but in the old provincial constitutions i can find but one injunction about catechizing ; and that is when the priest doubts whether the children were baptized or not ; and if they be born eight days before easter and whitsontide , they are not to be baptized till those days , and in the mean time they are to receive catechism . what is this receiving catechism by children , before they are eight days old ? it is well exorcism is joyned with it ; and so we are to understand by it the interrogatories in baptism : and lyndwood saith , the catechism is not only required for instruction in faith , but propter sponsionem , when the godfather answers , de fidei observantiâ . it is true , the canon law requires in adult persons catechizing before baptism ; but i find nothing of the catechizing children after it ; and no wonder , since lyndwood saith , the laity are bound to no more than to believe as the church believes ; nor the clergy neither , unless they can bear the charges of studying , and have masters to instruct them . this was good doctrine , when the design was to keep people in ignorance . for learning is an irreconcilable enemy to the fundamental policy of the roman church ; and it was that which brought in the reformation , since which a just care hath still been required for the instruction of youth ; and the fifty ninth canon of our church is very strict in it , which i desire you often to consider with the first rubrick after the catechism , and to act accordingly . iv. after catechizing , i recommend to you the due care of bringing the children of your parishes to confirmation . which would be of excellent use in the church , if the several ministers would take that pains about it , which they ought to do . remember that you are required to bring or send in writing , with your names subscribed , the names of all such persons in your parish , as you shall think fit to be presented to the bishop to be confirmed . if you take no care about it , and suffer them to come unprepared for so great , so solemn a thing , as renewing the promise and vow made in baptism , can you think your selves free from any guilt in it ? in the church of rome indeed great care was taken to hasten confirmation of children all they could : post baptismum quam citius poterint , as it is in our constitution provincial ; in another synodical , the parochial priests are charged to tell their parishioners , that they ought to get their children confirmed as soon as they can . in a synod at worcester , under walter de cantilupo , in the time of henry iii. the sacrament of confirmation is declared necessary for strength against the power of darkness ; and therefore it was called sacramentum pugnantium : and no wonder then that the parochial priests should be called upon so earnestly to bring the children to confirmation ; and the parents were to be forbidden to enter into the church , if they neglected it for a year after the birth of the child , if they had opportunity . the synod of exeter allowed two years , and then if they were not confirmed , the parents were to fast every friday , with bread and water , till it were done . and to the same purpose , the synod of winchester in the time of edw. i. in the constitutions of richard , bishop of sarum , two years were allowed , but that time was afterwards thought too long ; and then the priest as well as the parents was to be suspended from entrance into the church . but what preparation was required ? none that i can find : but great care is taken about the fillets to bind their heads to receive the unction , and the taking them off at the font , and burning them , lest they should be used for witchcraft , as lyndwood informs us . but we have no such customs , nor any ▪ of the reformed churches : we depend not upon the opus operatum , but suppose a due and serious preparation of mind necessary , and a solemn performance of it . i hope , by god's assistance , to be able , in time , to bring the performance of this office into a better method ; in the mean time i shall not fail doing my duty ; have you a care you do not fail in yours . v. as to the publick offices of the church , i do not only recommend to you a due care of the diligent , but of the devout performance of them . i have often wondred how a fixed and stated liturgy for general use , should become a matter of scruple and dispute among any in a christian church , unless there be something in christianity which makes it unlawful to pray together for things which we all understand beforehand to be the subject of our prayers . if our common necessities and duties are the same ; if we have the same blessings to pray , and to thank god for in our solemn devotions , why should any think it unlawful or unfitting to use the same expressions ? is god pleased with the change of our words and phrases ? can we imagine the holy spirit is given to dictate new expressions in prayers ? then they must pray by immediate inspiration ( which i think they will not pretend to , lest all the mistakes and incongruities of such prayers be imputed to the holy ghost ) but if not , then they are left to their own conceptions , and the spirits assistance is only in the exciting the affections and motions of the soul towards the things prayed for ; and if this be allowed , it is impossible to give a reason why the spirit of god may not as well excite those inward desires , when the words are the same as when they are different . and we are certain , that from the apostles times downwards , no one church or society of christians can be produced , who held it unlawful to pray by a set-form . on the other side , we have very early proofs of some common forms of prayer , which were generally used in the christian churches , and were the foundations of those ancient liturgies , which , by degrees were much enlarged . and the interpolations of later times , do no more overthrow the antiquity of the ground-work of them , than the large additions to a building , do prove there was no house before . it is an easie matter to say , that such liturgies could not be st. iames's or st. mark 's , because of such errors and mistakes , and interpolations of things and phrases of later times ; but what then ? is this an argument there were no ancient liturgies in the churches of ierusalem and alexandria , when so long since , as in origen's time we find an entire collect produced by him out of the alexandrian liturgy ? and the like may be shewed as to other churches , which by degrees came to have their liturgies much enlarged by the devout prayers of some extraordinary men , such as s. basil and s. chrysostom in the eastern churches . but my design is not to vindicate our use of an excellent liturgy , but to put you upon the using it in such manner , as may most recommend it to the people . i mean with that gravity , seriousness , attention , and devotion , which becomes so solemn a duty as prayer to god is . it will give too just a cause of prejudice to our prayers , if the people observe you to be careless and negligent about them ; or to run them over with so great haste , as if you minded nothing so much as to get to the end of them . if you mind them so little your selves , they will think themselves excused , if they mind them less . i could heartily wish , that in greater places , especially in such towns where there are people more at liberty , the constant morning and evening prayers were duly and devoutly read ; as it is already done with good success in london , and some other cities . by this means religion will gain ground , when the publick offices are daily performed ; and the people will be more acquainted with scripture , in hearing the lessons , and have a better esteem of the prayers , when they become their daily service , which they offer up to god as their morning and evening sacrifice ; and the design of our church will be best answered , which appoints the order for morning and evening prayer daily to be said , and used throughout the year . vi. as to the dissenters from the church ; the present circumstances of our affairs require a more than ordinary prudence in your behaviour towards them . it is to no purpose to provoke or exasperate them , since they will be but so much more your enemies for it ; and if you seem to court them too much , they will interpret your kindness to be a liking their way better than your own ; so that were it not for some worldly interest , you would be just what they are ; which is in effect to say , you would be men of conscience , if ye had a little more honesty . for they can never think those honest men , who comply with things against their consciences , only for their temporal advantage ; but they may like them as men of a party , who under some specious colours , promote their interest . for my own part , as i do sincerely value and esteem the church of england ( and i hope ever shall ) so i am not against such a due temper towards them , as is consistent with the preserving the constitution of our church . but if any think , under a pretence of liberty , to undermine and destroy it , we have reason to take the best care we can , in order to its preservation . i do not mean by opposing laws , or affronting authority , but by countermining them in the best way , i.e. by out-doing them in those things which make them most popular , if they are consistent with integrity and a good conscience . if they gain upon the people by an appearance of more than ordinary zeal for the good of souls , i would have you to go beyond them in a true and hearty concernment for them ; not in irregular heats and passions , but in the meekness of wisdom , in a calm and sedate temper ; in doing good even to them who most despitefully reproach you , and withdraw themselves and the people from you . if they get an interest among them by industry , and going from place to place , and family to family ; i hope you will think it your duty to converse more freely and familiarly with your own people . be not strangers , and you will make them friends . let them see by your particular application to them , that you do not despise them . for men love to value those who seem to value them ; and if you once slight them , you run the hazard of making them your enemies . it is some trial of a christians patience , as well as humility , to condescend to the weaknesses of others ; but where it is our duty , we must do it , and that chearfully , in order to the best end , viz. doing the more good upon them . and all condescension and kindness for such an end , is true wisdom as well as humility . i am afraid distance and too great stiffness of behaviour towards them , have made some more our enemies than they would have been . i hope they are now convinced , that the persecution which they complained lately so much of , was carried on by other men , and for other designs than they would then seem to believe . but that persecution was then a popular argument for them ; for the complaining side hath always the most pity . but now that is taken off , you may deal with them on more equal terms . now there is nothing to affright them , and we think we have reason enough on our side to perswade them . the case of separation stands just as it did in point of conscience , which is not now one jot more reasonable or just than it was before . some think severity makes men consider ; but i am afraid it heats them too much , and makes them too violent and refractary . you have more reason to fear now , what the interest of a party will do , than any strength of argument . how very few among them understand any reason at all for their separation ! but education , prejudice , authority of their teachers sway them ; remove these , and you convince them . and in order thereto , acquaint your selves with them , endeavour to oblige them , let them see you have no other design upon them , but to do them good ; if any thing will gain upon them , this will. but if after all , they grow more headstrong and insolent by the indulgence which the law gives them ; then observe , whether they observe those conditions on which the law gives it to them . for these are known rules in law , that he forfeits his privilege who goes beyond the bounds of it ; that no privileges are to be extended beyond the bounds which the laws give them ; for they ought to be observed as they are given . i leave it to be considered , whether all such who do not observe the conditions of the indulgence , be not as liable to the law , as if they had none . but there is a very profane abuse of this liberty among some , as tho' it were an indulgence not to serve god at all . such as these , as they were never intended by the law , so they ought to enjoy no benefit by it : for this were to countenance profaneness and irreligion , which i am afraid , will grow too much upon us , unless some effectual care be taken to suppress it . vii . there is another duty incumbent upon you , which i must particularly recommend to your care , and that is , of visiting the sick. i do not mean barely to perform the office prescribed , which is of very good use , and ought not to be neglected ; but a particular application of your selves to the state and condition of the persons you visit . it is no hard matter to run over some prayers , and so take leave ; but this doth not come up to the design of our church in that office : for , after the general exhoratation and profession of the christian faith , our church requires , that the sick person be moved to make special confession of his sins , if he feel his conscience troubled with any weighty matter ; and then if the sick person humbly and heartily desires it , he is to be absolved after this manner , our lord iesus christ , who hath left power in his church to absolve all sinners who truly repent and believe in him , &c. where the power of absolution is grounded upon the supposition of true faith and repentance ; and therefore when it is said afterwards , and by his authority committed to me , i absolve thee from the same , &c. it must proceed on the same supposition . for the church cannot absolve when god doth not . so that all the real comfort of the absolution depends upon the satisfaction of the person's mind , as to the sincerity of his repentance and faith in christ. now here lies the great difficulty of this office ; how to give your selves and the wounded conscience satisfaction , as to the sincerity of those acts ; i do not mean as to the sincerity of his present thoughts , but as to the acceptableness of his faith and repentance with god , in order to remission of sins . but what if you find the persons so ignorant , as not to understand what faith and repentance mean ? what if they have led such careless and secure lives in this world , as hardly ever to have had one serious thought of another ? is nothing to be done but to come and pray by them , and so dismiss them into their eternal state ? is this all the good you can , or are bound to do them ? i confess it is a very uncomfortable thing to tell men how they are to begin to live , when they are liker to die than to live ( and the people generally have a strange superstitious fear of sending for the minister , while there is any hope of recovery . ) but at last you are sent for ; and what a melancholy work are you then to go about ? you are , it may be , to make a man sensible of his sins , who never before considered what they were , or against whom they were committed , or what eternal misery he deserves by committing them . but i will suppose the best i can in this case , viz. that by your warm and serious discourse , you throughly awaken the conscience of a long and habitual sinner ; what are you then to do ? will you presently apply all the promises of grace and salvation to one whose conscience is awakened only with the fears of death , and the terrors of a day of judgment ? this , i confess , is a hard case ; on the one side , we must not discourage good beginnings in any ; we must not cast an awakened sinner into despair ; we must not limit the infinite mercy of god : but on the other side , we must have a great care of incouraging presumptuous sinners to put off their repentance to the last , because then upon confession of their sins , they can so easily obtain the churches absolution , which goes no farther , than truly repenting and believing . but here is the difficulty , how we can satisfie our selves that these do truly repent and believe , who are out of a capacity of giving proof of their sincerity by amendment of life ? i do not question the sincerity of their present purposes ; but how often do we find those to come to nothing , when they recover and fall into the former temptations ? how then shall they know their own sincerity till it be tried ? how can it be tried , when they are going out of the state of trial ? the most we can do , is to encourage them to do the best they can in their present condition , and to shew as many of the fruits of true repentance as their circumstances will allow ; and with the greatest humility of mind , and most earnest supplications to implore the infinite mercy of god to their souls . but besides these , there are many cases of sick persons , which require very particular advice , and spiritual direction , which you ought to be able to give them , and it cannot be done without some good measure of skill and experience in casuistical divinity . as , how to satisfie a doubting conscience , as to its own sincerity , when so many infirmities are mixed with our best actions ? how a sinner who hath relapsed after repentance , can be satisfied of the truth of his repentance , when he doth not know , but he may farther relapse upon fresh temptations ? how he shall know what failings are consistent with the state of grace , and the hopes of heaven , and what not ? what measure of conviction and power of resistance is necessary to make sins to be wilful and presumptuous ? what the just measures of restitution are in order to true repentance , in all such injuries which are capable of it ? i might name many others , but these i only mention to shew how necessary it is for you to apply your selves to moral and casuistical divinity , and not to content your selves barely with the knowledge of what is called positive and controversial . i am afraid there are too many who think they need to look after no more than what qualifies them for the pulpit ; ( and i wish all did take sufficient care of that ) but if we would do our duty as we ought , we must inquire into , and be able to resolve cases of conscience . for the priests lips should keep this kind of knowledge ; and the people should seek the law at his mouth ; for he is the messenger of the lord of hosts , mal. . . if this held in the levitical priesthood , much more certainly under the gospel , where the rates and measures of our duties are not to be determined by levitical precepts , but by the general reason and nature of moral actions . viii . among the duties of publick worship , i must put you in mind of a frequent celebration of the lord's supper . there is generally too great a neglect of this , which is the most proper part of evangelical worship . the duties of prayers and praises , are excellent and becoming duties , as we are creatures with respect to our maker and preserver . the duty of hearing the word of god read and explained , is consequent upon our owning it to be the rule of our faith and manners ; and all who desire to understand and practise their duty , can never despise or neglect it . but that solemn act of worship wherein we do most shew our selves christians , is the celebrating the holy eucharist . for , therein we own and declare the infinite love of god in sending his son into the world to die for sinners , in order to their salvation ; and that this is not only a true saying , but worthy of all men to be credited . therein , we lift up our hearts , and give thanks to our lord god ; we joyn with angels and archangels in lauding and magnifying his glorious name . therein , we not only commemorate the death and sufferings of our lord , but are made partakers of his body and blood , after a real , but sacramental manner . therein we offer up our selves to god , to be a reasonable , holy and lively sacrifice unto him . therein we adore and glorifie the ever blessed trinity ; and humbly implore the grace and assistance of our ever blessed mediator . and what now is there in all this , which is not very agreeable to the faith , hope and charity of christians ? nay , what duty is there , which so much expresses all these together , as this doth ? nor , whereby we may more reasonably expect greater supplies of divine grace to be bestowed upon us ? what then makes so many to be so backward in this duty , which profess a zeal and forwardness in many others ? if we had that warmth and fervor of devotion , that love to christ , and to each other , which the primitive christians had , we should make it as constant a part of our publick worship , as they did ; but this is not to be expected . neither did it always continue in the primitive church , when liberty , and ease , and worldly temptations made persons grow more remiss and careless in the solemn duties of their religion . s. chrysostom takes notice in his time of the different behaviour of persons , with respect to the holy ●●charist . there were some who pretended to greater holiness and austerity of life than others , who withdrew from the common conversation of mankind , and so by degrees from joining in the acts of publick worship with them . which did unspeakable mischief to christianity ; for then the perfection of the christian life , was not supposed to consist in the active part of it , but in retirement and contemplation . as tho' our highest imitation of christ lay in following him into the wilderness to be tempted of the devil ; and not in walking as he walked , who frequented the synagogues , and went about doing good . but this way of retirement happening to be admired by some great men , the publick worship came to be in less esteem ; and others upon reasons of a different nature , withdrew themselves from such acts of devotion as required a stricter attendance , and a more prepared temper of mind . and there were some who did abstain , because they were not so well satisfied with themselves as to their own preparations ; and such as these s. chrysostom seems to favour , rather than such who came often without due care , as to the whole course of their lives ; only out of custom , or out of regard to the orders of the church . from hence many thought it better to forbear , as long as they did it not out of contempt . and so by degrees the people were content to look on it as a sacrifice for them to be performed by others , rather than as an office , wherein they were to bear a part themselves ; at least , they thought once or thrice a year sufficient for them . and to this , as appears by our old provincial constitutions , they were forced by severe canons . when the reformation began , this disuse of this holy sacrament was looked on , by the chief reformers , as a great abuse and corruption crept into the church , which ought by all means to be reformed ; and the frequent celebration of it set up in the reformed churches . but unreasonable scruples in some , and misapprehensions in others , and a general coldness and indifference , as to matters of religion , have hitherto hindered the reviving this primitive part of devotion among us . i do not go about to determine the frequency in your parishes , which the scripture doth not as to the christian church , but supposes it to be often done ; but i may require you to take care that christ's institution be observed among you ; and that with your utmost care , both as to the decency and purity of it . the last thing i recommend to you all , is , to have a great care of your conversations . i do not speak it out of a distrust of you ; i hope you do it already : and your case will be so much worse , if you do it not , because you very well know how much you ought to do it . for the honour of god and religion , and the success of your ministry , as well as your own salvation , depend very much upon it . lead your flock by your example , as well as by your doctrine , and then you may much better hope that they will follow you ; for the people are naturally spies upon their ministers , and if they observe them to mind nothing but the world all the week , they will not believe them in earnest , when on the lords days they perswade them against it . and it takes off the weight of all reproof of other mens faults , if those they reprove have reason to believe them guilty of the same . i do not think it enough for a preacher of righteousness merely to avoid open and scandalous sins , but he ought to be a great example to others in the most excellent virtues which adorn our profession , not only in temperance and chastity , in iustice and ordinary charity , but in a readiness to do good to all , in forgiving injuries , in loving enemies , in evenness of temper , in humility and meekness , and patience , and submission to god's will , and in frequent retirements from the world , not meerly for study , but for devotion . if by these and such things you shine as lights among your people , they will be more ready to follow your conduct ; and in probability you will not only stop their mouths , but gain their hearts . for among all the ways of advancing the credit and interest of the church of england , one of the most succesful will be the diligent labours , and the exemplary lives of the clergy in it . but if men will not regard their own , or the churches interest in this matter ; if they will break their rules in such a manner , as to dishonour god , and the church , and themselves by it ; then you are to consider the next thing i was to speak to , which is , ii. what authority is given to us for the punishing offenders in our diocesses by the ecclesiastical law of this realm . for this we are to consider , that our authority herein is not derived from any modern canons or constitutions of this church ( altho' due regard ought to be shewed to them ) but from the ancient common law ecclesiastical in this realm , which still continues in force . for as there is a common law with respect to civil rights , which depends not on the feudal constitutions , altho' in many things it be the same with them ; but upon ancient practice , and general consent of the people from age to age. so , i say , there is a common law ecclesiastical , which altho' in many things it may be the same with the canon law , which is read in the books ; yet it hath not its force from any papal or legatine constitutions , but from the acceptance and practice of it in our church . i could easily shew ( if the time would permit ) that papal and legatine constitutions were not received here , altho' directed hither ; that some provincial constitutions never obtained the force of ecclesiastical laws ; but my business is to shew what did obtain and continue still to have the force of such ecclesiastical laws among us . by the statute of h. . c. . it is declared , that such canons , constitutions , ordinances , and synodals provincial being already made , which be not contrariant nor repugnant to the laws , statutes , and customs of this realm , nor to the damage or hurt to the king's prerogative royal , shall now still be used and executed as they were afore the making of this act , &c. it 's true , a review was appointed , but such difficulties were found in it , as to the shaking the foundations of the ecclesiastical law here , that nothing was ever legally established in it ; and therefore this law is still in force . in the statute h. . c. . it is said , that this realm recognizing no superiour under god but the king , hath been , and is free from subjection to any man's laws , but only to such as have been devised , made , and observed within this realm , for the wealth of the same : or to such other , as by the sufferance of the king and his progenitors , the people of this realm have taken at their free liberty , by their own consent , to be used amongst them , and have bound themselves by long use and custom to observance of the same , not as to the observance of the laws of any foreign prince , potentate , or prelate , but as to the customs and ancient laws of this realm , originally established , as laws of the same by the said sufferance , consent , custom , and none otherwise . all that i have now to do ; is to shew what authority the bishops had over the clergy by the ancient ecclesiastical law of this realm ; and what censu●es they were liable to for some particular offences . i. by the ecclesiastical law the bishop is iudge of the fitness of any clerk presented to a benefice . this is confessed by the lord coke in these words : and the examination of the ability and sufficiency of the person presented , belongs to the bishop , who is the ecclesiastical iudge , and in the examination he is a iudge , and not a minister , and may and ought to refuse the person presented , if he be not persona idonea . but this is plain to have been the ancient ecclesiastical law of this realm , by the articul . cleri in edw. ii. time , de idoneitate personae praesentatae ad beneficium ecclesiasticum pertinet examinatio ad iudicem ecclesiasticum , & ita est hactenus usitatum , & fiat in futurum . by the provincial constitutions at oxford in the time of hen. iii. the bishop is required to admit the clerk who is presented , without opposition , within two months , dum tamen idoneus sit , if he thinks him fit . so much time is allowed , propter examinationem , saith lyndwood ; even when there is no dispute about right of patronage . the main thing he is to be examined upon , is his ability to discharge his pastoral duty , as coke calls it ; or as lyndwood saith , whether he be commendandus scientia & moribus . as to the former , the bishop may judge himself ; but as to the latter , he must take the testimonials of others ; and i heartily wish the clergy would be more careful in giving them , by looking on it as a matter of conscience , and not meerly of civility ; for otherwise it will be impossible to avoid the pestering the church with scandalous and ignorant wretches . if the bishop refuses to admit within the time ( which by the modern canons is limited to twenty eight days after the presentation delivered ) he is liable to a duplex querela in the ecclesiastical courts , and a quare impedit at common law ; and then he must certifie the reasons of his refusal . in specot's case it is said , that in hen. . , . all the iudges agreed , that the bishop is iudge in the examination , and therefore the law giveth faith and credit to his iudgment . but because great inconveniencies might otherwise happen , the general allegation is not sufficient , but he must certifie specially and directly ; and the general rule is , and it was so resolved by the judges , that all such as are sufficient causes of deprivation of an incumbent , are sufficient causes to refuse a presentee . but by the canon law * more are allowed . in the constitutions of othobon , the bishop is required particularly to enquire into the life and conversation of him that is presented ; and afterwards , that if a bishop admits another who is guilty of the same fault for which he rejected the former , his institution is declared null and void . by the canon law , if a bishop maliciously refuses to admit a fit person , he is bound to provide another benefice for him ; but our ecclesiastical law much better puts him upon the proof of the cause of his refusal . but if the bishop doth not examine him , the canonists say it is a proof sufficient that he did it malitiosé . if a bishop once rejects a man for insufficiency , he cannot afterwards accept or admit of him ; as was adjudged in the bishop of hereford's case . if a man brings a presentation to a benefice , the bishop is not barely to examine him as to life and abilities , but he must be satisfied that he is in orders . how can he be satisfied , unless the other produce them ? how can he produce them , when it may be they are lost ? what is to be done in this case ? the canon is express , that no bishop shall institute any to a benefice , who hath been ordained by any other bishop , ( for if he ordained him himself , he cannot after reject him , because the law supposes him to have examined and approved him ) except he first shew unto him his letters of orders , and bring him a sufficient testimony of his fo●mer good life and behaviour , if the bishop shall require it ; and lastly , shall appear upon due examination to be worthy of the ministry . but yet in palmes and the bishop of peterborough's case , it was adjudged , that no lapse did accrue by the clerk's not shewing his orders , for the bishop upon his not coming to him again , collated after six months . but the court agreed , that the clerk ought to make proof of his orders ; but they differed about the manner of their proof . anderson said , the bishop might give him his oath . but if a proof were necessary , and the clerk did not come to make proof , it seems to me to be a very hard judgment . ii. the bishop by the ecclesiastical law , is to visit his diocess , and to take an account of the clergy how they behave themselves in the duties of their places . by the eldest canons i can find , the bishops visitation is supposed as a thing implied in his office ; whereby he is obliged to look after the good estate of his whole diocess , and especially of the clergy in it . in the time of hubert arehbishop of canterbury , in the beginning of king iohn's time , care is taken in the canons then made , that b●shops should not be burdensom to the clergy in the number of the attendants in their visitations , which then were parochial , and the number allowed of twenty or thirty horse , was too heavy for the clergy to bear . and therefore by degrees it was thought fit to turn that charge into a certainty , which was the original of procurations . by the fourth council of toledo , the bishop was to visit his whole diocess , parochially , every year . the gloss saith , if there were occasion for it ; and that the bishop may visit as often as he sees cause ; but if he be hindered , the canon saith , he may send others ( which is the original of the arch-deacon's visitation ) to see not only the condition of the churches , but the lives of the ministers . the council of braga in the latter end of the sixth century , makes this the first canon , that all bishops should visit their diocesses by parishes , and there should first examine the clergy , and then the people ; and in another canon he was required to receive only his cathedraticum , i. e. a certain sum in lieu of entertainment ; which came to be setled by prescription . the council of cavailon in france , a. d. . fixed no sum , but desired the bishops to be no burdens to the clergy in their parochial visitations . lyndwood saith , the ancient procuration here , was a day and nights entertainment ; which after came to be a customary payment : but however it was paid , it is an evident proof of the right of the bishops visitations by the ancient ecclesiastical law ; and by such a custom as is allowable by the rules of our common law. iii. there are some faults which make the clergy liable to deprivation by virtue of the ecclesiastical law , which was here received . i shall name only some of them , and conclude ; these being sufficient for my present purpose . i. excessive drinking . all drinking ( ad potus aequales ) was absolutely forbidden to clergymen , on pain of suspension after admonition ; not only by a synodical , but by a provincial constitution under edmund , archbishop of canterbury . the canon law saith in that case , ab officio vel beneficio suspendatur : but our constitution is more severe , à beneficio & officio . the council of oxford not only strictly forbids all clergymen whatever tends to gluttony and drunkenness ; but it requires the bishops to proceed strictly against those who are guilty , according to the form of the general council , i. e. the lateran , . viz. by admonition first , and then suspension . lyndwood complains , that this was not so much looked after as it should be , because it brought no profit ; i hope that reason will not hold among those who pretend to reformation ; which will be very defective , if it extend not to our lives as well as our doctrines : for there can be no greater reproach than to see those loose and dissolute in their conversations , who think it their honour to be ministers of a reformed church . it was a stinging reflection upon our church by the archbishop of spalato , ( who was no very strict man himself ) that he saw nothing reformed among us but our doctrines . i hope there was more of satyr than of truth in it ; for i do not question , but there were many then ( as there are now ) of exemplary lives , and unblameable conversations ; but if there be any others , it will be the more shame not to proceed against them ; since even before the reformation , the canons were so strict and severe in this matter . in the council at westminster in henry ii. time , under richard , archbishop of canterbury , all clergymen are forbidden going into taverns to eat or drink , unless upon travelling ; and the sanction of this canon is , aut cesset , aut deponatur . the same was forbidden in the council at york , in the time of richard i. in the council at london under hubert , in the time of king iohn . and since the reformation the same canon is renewed , that no ecclesiastical persons shall at any time , other than for their honest necessities , resort to any taverns or ale-houses . and there have been instances of the severity of our ecclesiastical censures against drunkenness in clergymen . in iac. parker was deprived of his benefice for drunkenness , and moved for a prohibition , but it was denied him . in iac. another was deprived for the same fault ; and the judges at common law allowed the sentence to be good . no doubt there are other instances , but we had not known of these , if they had not been preserved in books of reports . ii. incontinency . lyndwood saith , those who are proved to be guilty of it , are ipso iure privati ; but he thinks a declaratory sentence of the ecclesiastical judges necessary for the execution of it . since the reformation , we have instances of deprivation for adultery in our law books . one eliz. another eliz. a third eliz. these are enough to shew that the ecclesiastical law is allowed by the judges of common law , to continue in sufficient force for deprivation in this case . iii. simony . which is the name given by the ecclesiastical law , to all contracts for gain in the disposing or obtaining any ecclesiastical promotion or ministry . it is true , these do not come up to the very sin of simon magus , which related to the immediate gifts of the holy ghost ; but because the whole ministerial office in all the parts of it ( especially the cure of souls ) is of a spiritual nature ; and all bargains are so repugnant to the design of it , therefore the ecclesiastical law hath fixed that detestable name upon it : for , all contractus non gratuiti in these things , savour of turpe lucrum , and tend to bring in turpe commercium into the church ; which would really overturn the whole design of that ministry , which was designed for the salvation of souls . and therefore it was necessary , that when persons had received ( by the favour of temporal princes and other benefactors , who were founders of churches ) such endowments as might encourage them in their function , that severe laws should be made against any such sordid and mischievous contracts . and such there were here in england long before the excellent stat. of eliz. c. . although it seems the force of them was so much worn out , as to make that statute necessary for avoiding of simony ; which is there explained to be corruption in bestowing or getting possession of promotions ecclesiastical . in a council at london under lanfranc , in the conqueror's time , simony was forbidden , under the name of buying and selling of orders . and it could be nothing else before the churches revenue was setled : but in the time of henry i. ecclesiastical benefices were forbidden to be bought or sold , and it was deprivation then to any clergyman to be convicted of it ; and a layman was to be out-lawed , and excommunicated , and deprived of his right of patronage . and this was done by a provincial synod of that time . in the reign of henry ii. it was decreed , that if any person received any money for a presentation , he was to be for ever deprived of the patronage of that church ; and this was not meerly a provincial constitution , but two kings were present ( hen. ii. and his son ) and added their authority to it . this was not depriving a man of his free-hold by a canon , as a learned gentleman calls it ; for here was the greatest authority , temporal as well as ecclesiastical added to it . but we are told , these canons were of as little effect as that of othobon , which made all simoniacal contracts void ; but some of the most judicious lawyers have held , that simony being contractus ex turpi causâ , is void between parties . all that i aim at is to shew , that by our old ecclesiastical law , simoniacus incurred a deprivation and disability before the stat. . eliz. and therein i have the opinion of a very learned judge concurring with me . iv. dilapidations . by which the ecclesiastical law understands any considerable impairing the edifices , woods , and revenues belonging to ecclesiastical persons , by virtue of their places . for it is the greatest interest and concernment of the church to have things preserved for the good of successors ; and it is a part of common iustice and honesty so to do . and the lord coke positively affirms , that dilapidation is a good cause of deprivation . and it was so resolved by the judges in the kings bench , iac. not by virtue of any new law or statute , but by the old ecclesiastical law. for which coke refers to the year-books , which not only shew what the ecclesiastical law then was , but that it was allowed by the common law of england ; and we are told , that is never given to change ; but it may be forced to it by a new law , which cannot be pretended in this case . and by the old constitutions here received , the bishops are required to put the clergy in mind of keeping their houses in sufficient reparations , and if they do it not within two months , the bishop is to take care it be done out of the profits of the benefice . by the injunctions of edw. vi. and queen elizabeth , all persons having ecclesiastical benefices , are required to set apart the fifth of their revenue to repair their houses ; and afterwards to maintain them in good condition . v. pluralities . by the ecclesiastical law , which was here received , the actual receiving institution into a second benefice made the first void ipso iure ; and if he sought to keep both above a month , the second was void too . lyndwood observes , that the ecclesiastical law had varied in this matter . and it proceeded by these steps , ( which are more than lyndwood mentions . ) i. it was absolutely forbidden to have two parishes , if there were more than ten inhabitants in them , because no man could do his duty in both places . and if any bishop neglected the execution of it , he was to be excommunicated for two months , and to be restored only upon promise to see this canon executed . ii. the rule was allowed to hold , as to cities , but an exception was made as to small and remote places , where there was a greater scarcity of persons to supply them . iii. if a man had two benefices , it was left to his choice , which he would have : but he could not hold both . this kind of option was allowed by the ecclesiastical law then in force . iv. that if he takes a second benefice , that institution is void , by the third council of lateran , under alexander . v. that by taking a second , the first is void ; which is the famous canon of the fourth lateran council . vi. that if he were not contented with the last , but endeavour to keep both , he should be deprived of both . and this was the ecclesiastical law as it was declared in our provincial constitutions . but the general practice was to avoid the former , according to the lateran council . these were very severe canons , but that one clause of the pope's dispensing power , made them to signifie little , unless it were to advance his power and revenue . for when the dispensing power came to be owned , the law had very little force ; especially as to the consciences of men. for if it were a law of god , how could any man dispense with it ? unless it were as apparent that he had given a power in some cases to dispense , as that he had made the law. those casuists are very hard put to it , who make residence iure divino , and yet say the pope may dispense with it ; which at last comes only to this , that the pope can authoritatively declare the sufficiency of the cause : so that the whole matter depends upon the cause ; whether there can be any sufficient to excuse from personal residence . it is agreed on all hands , that the habitual neglect of a charge we have taken upon our selves , is an evil thing , and that it is so to heap up preferments meerly for riches , or luxury , or ambition ; but the main question in point of conscience is , what is a sufficient cause to justifie any man's breaking so reasonable and just a rule as that of residence is . it cannot be denied , that the eldest canons of the church were so strict and severe , that they made it unlawful for any man to go from that church in which he first received orders ; as well as to take another benefice in it : and so for any bishop to be translated from that place he was first consecrated to ; as well as to hold another with it . but the good of the church being the main foundation of all the rules of it ; when that might be better promoted by a translation , it was by a tacit consent looked on , as no unjust violation of its rules . the question then is , whether the churches benefit may not in some cases make the canons against non-residence as dispensible , as those against translations ? and the resolution of it doth not depend upon the voiding the particular obligation of the incumbent to his cure ; but upon some more general reason with respect to the state of the church ; as being imployed in the service of it , which requires a persons having ( not a bare competency for subsistence , but ) a sufficiency to provide necessaries for such service : for those seem to have very little regard to the flourishing condition of a church , who would confine the sufficiency of a subsistence , meerly to the necessaries of life . but it seems to be reasonable , that clergymen should have incouragement sufficient , not only to keep them above contempt , but in some respect agreeable to the more ample provision of other orders of men. and by god's own appointment the tribe of levi did not fall short of any of the rest , if it did not very much exceed the proportion of others . we do not pretend to the privileges they had , only we observe from thence , that god himself did appoint a plentiful subsistence for those who attended upon his service . and i do not know what there is levitical or ceremonial in that . i am sure the duties of the clergy now require a greater freedom of mind from the anxious cares of the world , than the imployments of the priests and levites under the law. but we need not go so far back ; if the church enjoyed all her revenues as entirely , as when the severe canons against pluralities were made , there would not be such a plea for them , as there is too much cause for in some places , from the want of a competent subsistence . but since that time , the abundance of appropriations ( since turned into lay-fees ) hath extreamly lessened the churches revenues , and have left us a great number of poor vicarages , and arbitrary cures , which would hardly have afforded a maintenance for the nethinims under the law , who were only to be hewers of wood , and drawers of water . but this doth not yet clear the difficulty : for the question is , whether the subsistence of the clergy can lawfully be improved by a plurality of livings ? truly , i think this ( if it be allowed in some cases lawful ) to be the least desirable way of any ; but in some circumstances it is much more excusable than in others . as when the benefices are mean , when they lie near each other , when great care is taken to put in sufficient curates with good allowance ; when persons take all opportunities to do their duties themselves , and do not live at a distance from their benefices in an idle and careless manner . but for men to put in curates meerly to satisfie the law , and to mind nothing of the duties of their places , is a horrible scandal to religion and our church , and that , which if not amended , may justly bring down the wrath of god upon us . for the loosest of all the popish casuists look upon this as a very great sin , even those who attributed to the pope the highest dispensing power in this case . but when the great liberty of dispensing had made the ecclesiastical laws in great measure useless , then it was thought fit by our law-makers to restrain and limit it by a statute made h. viii . wherein it is enacted , that if any person or persons having one benefice with cure of souls , being of the yearly value of eight pounds , or above , accept , or take any other with cure of souls , and be instituted , and inducted in possession of the same , that then , and immediately after such possession had thereof , the first benefice shall be adjudged to be void . and all licenses and dispensations to the contrary are declared to be void and of none effect . this , one would have thought , had been an effectual remedy against all such pluralities and dispensations to obtain them ; and this , no doubt , was the primary design of the law ; but then follow so many proviso's of qualified men to get dispensations , as take off a great deal of the force and effect of this law. but then it ought well to be consider'd , whether such a license being against the chief design of a law , can satisfie any man in point of conscience , where there is not a just and sufficient cause ? for , if the pope's dispensation , with the supposed plenitude of his power , could not satisfie a man's conscience without an antecedent cause , as the casuists resolve , much less can such proviso's do it . it is the general opinion of divines and lawyers , saith lessius , that no man is safe in conscience by the pope's dispensation for pluralities , unless there be a just cause for it . no man can with a safe conscience , take a dispensation from the pope for more benefices than one , meerly for his own advantage , saith panormitan ; and from him sylvester and summ. angelica . a dispensation , saith cardinal to-let , secures a man as to the law ; but as to conscience there must be a good cause for it ; and that is , when the church hath more benefit by it , than it would have without it . but the pope's dispensing power went much farther in point of conscience in their opinion , than that which is setled among us by act of parliament . for it is expressed in the statute of hen. viii . that the dispensation is intended to keep men from incurring the danger , penalty , and forfeiture in the statute comprised . so that the most qualified person can only say , that the law doth not deprive him ; but he can never plead that it can satisfie him in point of conscience , unless there be some cause for it , which is of more moment to the church , than a man 's sole and constant attendance on a particular cure is . but this statute is more favourable to the clergy , than the canon law was before , in two particulars . . in declaring that no simple benefices , or meer dignities , as the canonists call them , are comprehended under the name of benefices , having cure of souls , viz. no deanary , archdeaconry , chancellorship , treasurership , chantership , or prebend in any cathedral or collegiate church , nor parsonage that hath a vicar endowed , nor any benefice perpetually appropriate . but all these before were within the reach of the canon law , and a dispensation was necessary for them : which shews , that this law had a particular respect to the necessary attendance on parochial cures , and looked on other dignities and preferments in the church , as a sufficient encouragement to extraordinary merit . . that no notice is taken of livings under the valuation of l. which , i suppose , is that of e. . for that of h. . was not till five years after that statute . but after that valuation it was to be judged according to it , and not according to the real value , as the judges declared car. i. in the case of drake and hill. now here was a regard had to the poorness of benefices , so far , that the statute doth not deprive the incumbent upon taking a second living , if the former be under l. the question that arises from hence is , whether such persons are allowed to enjoy such pluralities by law ; or only left to the ecclesiastical law , as it was before ? it is certain , that such are not liable to the penalty of this law ; but before any person might be deprived by the ecclesiastical law for taking a second benefice without dispensation , of what value soever the former were ; now here comes a statute , which enacts , that all who take a second benefice , having one of l. without qualification , shall lose his legal title to the first ; but what if it be under ? shall he lose it or not ? not by this law. but suppose the ecclesiastical law before makes him liable to deprivation ; doth the statute alter the law without any words to that purpose ? the bishop had a power before to deprive , where is it taken away ? the patron had a right to present upon such deprivation ; how comes he to lose it ? and i take it for granted , that no antecedent rights are taken away by implications ; but there must be express clauses to that purpose . so that i conclude , the ancient ecclesiastical law to be still in force , where it is not taken away by statute . and thus , my brethren , i have laid before you the authority and the rules we are to act by ; i have endeavoured to recommend to you , the most useful parts of your duty , and i hope you will not give me occasion to shew what power we have by the ecclesiastical law of this realm to proceed against offenders . nothing will be more uneasie to me , than to be forced to make use of any severity against you . and my hearts desire is , that we may all sincerely and faithfully discharge the duties of our several places , that the blessing of god may be upon us all ; so that we may save our selves , and those committed to our charge . of the nature of the trust committed to the parochial clergy , at a visitation at worcester , october st . . my brethren , i have formerly , on the like occasion , discoursed to you of the general duties of your function , and the obligation you are under to perform them ; and therefore i shall now confine my discourse to these two things : i. to consider the particular nature of the trust committed to you . ii. the obligation you are under to your parochial cures . i. the first is necessary to be spoken to ; for while persons have only so confused and cloudy apprehensions concerning it , they can neither be satisfied in the nature of their duties , nor in their performance of them . and there is danger as well in setting them so high as to make them impracticable , as in sinking them so low as to make , not only themselves , but their profession contemptible . for the world ( let us say what we will ) will always esteem men , not meerly for a name and profession , but for the work and service which they do . there is , no doubt , a reverence and respect due to a sacred function on its own account ; but the highest profession can never maintain its character among the rest of mankind , unless they who are of it , do promote the general good , by acting suitably to it . and the greater the character is , which any bear , the higher will the expectations of others be concerning them ; and if they fail in the greatest and most useful duties of their function , it will be impossible to keep up the regard which ought to be shew'd unto it . we may complain as long as we please of the unreasonableness of the contempt of the clergy in our days , ( which is too general , and too far spread ) but the most effectual means to prevent or remove it , is for the clergy to apply themselves to the most necessary duties , with respect to the charge and trust committed to them . but here arises a considerable difficulty , which deserves to be cleared ; viz. concerning the just measures of that diligence which is required . for , there are some who will never be satisfied that the clergy do enough , let them do what they can ; and it is to no purpose to think to satisfie them who are resolved not to be satisfied : but on the other side , some care not how little they do , and the less , the better they are pleased with them ; and others again , have raised their duties so high , that scarce any man can satisfie himself that he hath done his duty . it is a matter therefore of the highest consequence to us , to understand , what rule and measure is to be observed , so as we may neither wilfully neglect our duty , nor despair of doing it . here we are to consider two things ; . how far the scripture hath determined it . . what influence the constitution of our church is to have upon us concerning it . . the scripture doth speak something relating to it , both in the old and new testament . in the old testament we have the duties enjoyned to the levitical priesthood , and the extraordinary commissions given to the prophets . as to the levitical priesthood , we can only draw some general instructions , which may be of use , altho' that priesthood hath been long since at an end ; christ being our high-priest after another order , viz. of melchisedeck ; and our duty now is to observe his laws , and to offer that reasonable service which he requires . but even from the levitical priesthood , we may observe these things . . that although the main of their duty of attendance respected the temple and sacrifices ; yet at other times they were bound to instruct the people in the law. for so moses leaves it as a special charge to the tribe of levi , to teach iacob his iudgments , and israel his law. and to incourage them to do it , they had a liberal maintenance , far above the proportion of the other tribes . for , by computation it will be found , that they were not much above the sixtieth part of the people ; for when the other tribes were numbred from twenty years old , they made six hundred thousand , and three thousand and five hundred and fifty . but the children of levi were reckoned by themselves from a month old ; and they made but two and twenty thousand ; so that if the males of the other tribes had been reckoned , as they were , it is agreed by learned men , who had no fondness for the clergy , that they did not make above a fiftieth or sixtieth part ; and yet they had near a fifth of the profits , besides accidental perquisites , as to sacrifices , and ransoms of the first-born . thus , say they , god was pleased to enrich that tribe which was devoted to his service . but it was not certainly , that they should spend their time in idleness and luxury , but that they might with the greater freedom apply themselves to the study of the law , that they might instruct the people . for the cities of the levites were as so many colleges dispersed up and down in the several tribes , to which the people might upon occasion , more easily resort . . that if the people erred thro' ignorance of the law , god himself laid the blame on those who were bound to instruct them . my people , saith god by the prophet , are destroyed for lack of knowledge . if people are resolved to be ignorant , who can help it ? had they not the law to inform them ? but it is observable , that the peoples errors are laid to the charge of the priests , and the punishment is denounced against them . because thou hast rejected knowledge , i will also reject thee , that thou shalt be no priest unto me . it seems the priests were grown careless and negligent , as to their own improvements ; they did not know to what purpose they should take so much pains in studying the law , and the difficult points of it ; they were for a freedom of conversation , and hoped to keep up their interest among the people that way . therefore isaiah call them shepherds that cannot understand ; but were very intent upon their profits , they all look to their own way , every one for his gain from his quarter . but this was not all , for the prophet charges them with a voluptuous , careless , dissolute life . come ye , say they , i will fetch wine , and we will fill our selves with strong drink , and to morrow shall be as this day , and much more abundant . was not this a very agreeable life for those who were to instruct the people in the duties of sobriety and temperance ? it was death for the priests by the law to drink wine or strong drink , when they went into the tabernacle of the congregation ; and the reason given is , that ye may put a difference between holy and unholy , and between unclean and clean ; and that ye may teach the children of israel all the statutes , which the lord hath spoken to thee by the hand of moses . which implies , that those who are given to drinking wine or strong drink , are very unfit to instruct others in the law of god. and god looked on them as such a dishonour to his worship , that he threatens immediate death to them that approached to his altar , when they had drank wine ; and the iews say , that was the reason why nadab and abihu were destroyed . and then god said , i will be sanctified in them that come nigh me . all nations have abhorred sottish and drunken priests , as most unfit to approach to god when they were not themselves ; or to offer sacrifices for others , when they made beasts of themselves . but this was not all ; for god required from them who were to teach others the law , that they should be always in a capacity of understanding and practising it themselves . but if we proceed to the prophets , nothing can be more dreadful , than what god saith to ezekiel , that if he did not warn the people as he commanded them , their blood will i require at thy hand . is this charge now lying upon every one of you , as to every person under your care ? who would not rather run into a wilderness , or hide himself in a cave , than take such a charge upon him ? but we must distinguish what was peculiar to the prophet's immediate commission to go to any particular person in god's name , from a general charge to inform persons in their duties , and to tell them the danger of continuing in their sins . if any fail for want of information , when you are bound to give it , the neglect must fall heavy , and therefore you are bound to take all just opportunities in publick and private to inform those under your care of such sins as you know them to be guilty of ; not with a design to upbraid , but to reform them . in the new testament the charge is general to feed the flock of god ; and to do it willingly , not for filthy lucre , but of a ready mind ; and to be examples to the flock . but st. peter , who gives this advice , doth not determine who belong to the flock ; nor within what bounds it is to be limited ; and there were many flocks in the iewish dispersion , and many elders scattered up and down among them in pontus , asia , galatia , cappadocia , and bithynia ; so that here we have only general and excellent advice for such who had care of the several flocks , to carry themselves towards them with great humility and tenderness , with charity and goodness , as those that made it their business to do good among them , and conduct them in the way to heaven . st. paul , in his charge to those whom he sent for to miletus , tells them , that they must take heed to themselves , and to all the flock , over which the holy ghost hath made them overseers , to feed the church of god , which he hath purchased with his own blood. it 's possible here might be a particular designation of the flock they were to oversee , by the direction of the holy ghost ; but yet the charge is general to take heed to themselves and to the flock , and to promote the good of the church of god , which christ hath purchased with his own blood. which are the most weighty considerations in the world to excite us to the utmost care and diligence in discharge of our duties . in the epistle to the thessalonians they are said to be over them in the lord , and to admonish them . in that to the hebrews , to watch for their souls , as they that must give an account . no doubt , very great care and watchfulness is required in all that take so great and solemn an office upon them ; but where are the bounds and limits set , as to the people , and nature of the duties required from them ? must every man be left to his own conscience and judgment , what , and how far he is to go ? or can we suppose all men equally careful of doing their duties , if no particular obligation be laid upon them ? some of the eloquent fathers of the church , as st. chrysostom , st. ierom , st. gregory nazianzen , and others , have allowed themselves so much in the flights of fancy , and figures of speaking about the height and dignity of the sacred function , as if they had a mind to discourage all men of modest and humble dispositions from undertaking it . i do not wonder that they ran into solitudes , and withdrew from the world upon it ; but i do wonder how they came from thence and undertook the same charge afterwards , without giving an answer to their own arguments . for the world remained just as it was when they left it . mankind were still as impatient of being governed , or told of their faults , as sickle and humoursom , as prone to evil , and untractable to good , as it was before . and could they hope it would ever mend by their running away from it ? or , was their duty become more easie by declining it ; i think it was very well for the church of god , that , notwithstanding their own many arguments , they took the sacred office upon them at last , and did god and the church good service in it . but if men were to judge by their writings upon this argument , one would think none but those who had a mind to be damned , would undertake it . and their great strains of wit and eloquence , if they had any force , would keep the best men out of the church , who were most likely to do god service in it ; and we need no other instances than these very persons themselves . and if all good , and humble , and conscientious men should for the sake of the hardness of the work , decline the church's service , and take any other lawful imployment , what would become of the church of god ? for none that had , or intended to keep a good conscience , could undertake the cure of souls ; and so they must be left to such as had no regard to their own ; but were either ignorant , stupid and senseless creatures , or such as regarded not their own salvation , who durst undertake such a task , as would not only add to their own guilt , but bring the heavy load of other mens faults upon them too . what is now to be done in this case ? hath god really imposed such a task upon all those who enter into this sacred function , that it is morally impossible for an honest man to discharge it with a good conscience ? how then can any such undertake it ? but if it may be done , what are those bounds and rules we are to observe , so as a good man may satisfie himself in a competent measure , that he hath done his duty ? ii. and this is that which i shall now endeavour to clear . for every one who is in orders , hath a double capacity : one with respect to the church of god in general ; another to that particular flock which is allotted to him , by the constitution of this church , and the law of the land. for although the nature of our duty in general be determined by the word of god , as i have already ready shewed , yet the particular obligation of every one to his own flock , is according to that power and authority , which by the rules and orders of this church is committed to him , and is fully expressed in the office of ordination . by which it plainly appears , that the care of souls committed to persons among us , is not an absolute , indefinite , and unaccountable thing ; but is limited , as to place , persons , and duties , which are incumbent upon them . they are to teach the people committed to their charge ; by whom ? by the bishop when he gives institution . they are to give private as well as publick monitions and exhortations , as well to the sick , as to the whle : what , to all ? no , but to those within their cure. they are to banish erroneous doctrines , and to promote peace and love , especially among them committed to their charge . and last of all , they are to obey those who have the charge and government over them . these things are so express and plain in the very constitution of this church , and owned so solemnly by every one that enters into orders , that there can be no dispute concerning them . and from thence we observe several things that tend to the resolution of the main point , as to the satisfaction of doing your duties , as incumbents on your several places . i. that it is a cure of souls limited as to persons and place , i.e. within such a precinct as is called a parish . ii. that it is limited as to power , with respect to discipline . therefore i shall endeavour to clear these two things : i. what the just bounds and limits of parochial cures are . ii. what is the measure of that diligence which is required within those bounds . as to the former , we are to begin with the limitation as to place . i. that it is a cure of souls limited within certain bounds which are called parishes , which are now certainly known by long usage and custom , and ought still to be preserved with great care ; for otherwise confusion and disputes will arise between several ministers , and several parishes with one another . for since the duties and the profits are both limited , it is necessary that those bounds should be carefully preserved , as they generally are by annual perambulations . but there are some who will understand nothing of this bounding of ministerial duties by distinct parishes , who think they are at liberty to exercise their gifts where-ever they are called ; and that it were better that these parochial inclosures were thrown open , and all left at liberty to chuse such whom they liked best , and under whom they can improve most . these things seem to look plausibly at the first appearance , and to come nearest to the first gathering of churches , before any such thing as parishes were known . but to me this arguing looks like persons going about now to overthrow all dominion and property in lands and estates , because it seems not so agreeable with the first natural freedom of mankind ; who according to the original right of nature , might pick and chuse what served most to their own conveniency . but although this were the first state of things , yet the great inconveniencies which followed it , upon the increase of mankind , made division and property necessary ; and altho' there be no express command of god for it , yet being so necessary for the good of mankind , it was not only continued every where , but those persons were thought fit to be punished by severe laws , who invaded the rights and properties of others , either by open violence and rapine , or by secret stealth and purloining i grant , that at first there were no such parochial divisions of cures here in england , as there are now . for the bishops and their clergy lived in common ; and before that the number of christians was much increased , the bishops sent out their clergy to preach to the people , as they saw occasion . but after the inhabitants had generally embraced christianity , this itinerant and occasional going from place to place , was found very inconvenient , because of the constant offices that were to be administred ; and the peoples knowing to whom they should resort for spiritual offices and directions . hereupon the bounds of parochial cures were found necessary to be settled here by degrees , by those bishops who were the great instruments of converting the nation from the saxon idolatry . but a work of this nature could not be done all at once , as by a kind of agrarian law , but several steps were taken in order to it . at first , as appears by bede , they made use of any old british churches that were left standing ; so augustin at first made use of st. martin's near canterbury , and after repaired christs-church , which were both british churches . but ethelbert gave all incouragement both to repair old churches and to build new. however , the work went on slowly ; augustin consecrated but two bishops , which were setled at london and rochester , where ethelbert built and endowed two churches for the bishops and their clergy to live together . in the western parts bicinus built several churches about dorchester , where his see was fixed . wilfred converted the south-saxons , and settled presbyters in the isle of wight , but they were but two . in the kingdom of mercia there were five diocesses made in theodore's time ; and putta , bishop of rochester , being driven from his see , he obtained from saxulphus , a mercian bishop , a church with a small glebe , and there he ended his days . in the northern parts we read of two churches built by two noblemen , ( puch and addi ) upon their own manors . and the same might be done elsewhere ; but bede would never have mentioned these , if the thing had been common . but in his epistle to egbert , archbishop of york , a little before his death he intimates the great want of presbyters and parochial settlements , and therefore earnestly perswades him to procure more . and if egbert's canons be genuine ( of which there are several ancient mss. ) the duties of presbyters in their several churches are set down : however , the work went not on so fast , but in his successor eanbaldus his time , the bishops were required to find out convenient places to build churches in ; and the same passed in the southern parts by general consent . in the council of cloveshoo , we read of presbyters placed up and down by the bishops in the manors of the laity , and in several parts distinct from the episcopal see ; and there they are exhorted to be diligent in their duties . in the times of edgar and canutus , we read of the mother churches , which had the original settlement of tithes , ( after they were given to the church by several laws ) and of the churches built upon their own lands by the lords of manors ; to which they could only apply a third part of the tithes . but in the laws of canutus , we find a fourfold distinction of churches . . the head church , or the bishop's see. . churches of a second rank , which had right of sepulture , and baptism , and tithes . . churches that had right of sepulture , but not frequented . . field-churches or oratories , which had no right of burial . the second sort seem to be the original parochial churches which had the endowment of tithes , and were so large , that several other churches were taken out of them by the lords of manors ; and so the parishes came to be multiplied so much , that in the laws of edward the confessor , c. . it is said , that there were then three or four churches , where there had been but one before . in this diocess i find by an epistle of wulston , bishop of worcester , to anselm , that before the conquest there were churches in vills , or upon particular manors that were consecrated . and if william the conqueror demolished six and thirty parish churches in the compass of the new forest , as is commonly said , there must be a very great number before the conquest ; although so few are said to appear in doomsday book ; ( yet there are many parochial churches of this diocess in it , above twenty in two deanaries ) but the normans almost ruined the parochial clergy , by seizing the tithes , and making appropriations of them . but in the saxon times the number still encreased , as lords of manors and others were willing to erect new churches , and to have a settled parochial minister among them , who was to take care of the souls of the people within such a precinct , as hath obtained the name of a parish . but parishes now are of a very different extent and value ; but the obligation which the law puts upon them , is the same ; only where the maintenance is greater they may have the more assistants . and from hence came the difference among the parochial clergy ; for , those whose parishes were better endowed , could maintain inferior clerks under them , who might be useful to them in the publick service , and assist them in the administration of sacraments . and this was the true original of those we now call parish-clerks ; but were at first intended as clerks-assistant to him that had the cure ; and therefore he had the nomination of them , as appears by the ecclesiastical law , both here and abroad . and lyndwood saith , every vicar was to have enough to serve him , and one clerk or more ; and by the canon-law , no church could be founded , where there was not a maintenance for assisting-clerks . in the synod of worcester , under walter cantelupe , in henry the third's time , they are called capellani parochiales , and the rectors of parishes were required to have such with them . and the canon law doth allow a rector to give a title to another to receive orders as an assistant to him ; and this without any prejudice to the patron 's right ; because but one can have a legal title to the cure. but lyndwood observes very well , that those who gives titles to others , as their assistants or curates , are bound to maintain them if they want . these are called vicarii parochiales , & stipendiarii ; but conductitii presbyteri , who are forbidden , were those who took livings to farm , without a title . but after appropriations came in , then there were another sort of vicars called perpetui , and were endowed with a certain portion of the temporalities , and were admitted ad curam animarum : but such could not personam ecclesiae sustinere in an action at law about the rights of the church , but as to their own right they might . but still there is another sort of vicars , who are perpetual , but not endowed any otherwise than the bishop did allow a congrua portio ; and this was in appropriations where the bishop consented only upon those terms , as they generally were so made , till the neglect made the statutes necessary , r. . . and h. . . the bishops were to make , or enlarge the allowance , say the canonists , after presentation , and before institution , and were to see that it were a sufficient subsistence . but there were some cures which had chapels of ease belonging to them ; and they who offiuated in them , were called capellani , and had their subsistence out of the oblations and obventions , and were often perpetual and presentative . and where the incumbents had several chapels of ease , and only assistants to supply them , the canon law doth not call them rectores , but plebani ; who had a sort of peculiar jurisdiction in lesser matters ; but still they were under the bishops authority in visitations and other ecclesiastical censures , because the care of the whole diocess belonged to him iure communi ; and so it was taken for granted in all parts of the christian world : and especially in this kingdom , where parochial episcopacy was never heard of till of late years . for , nothing can be plainer in our history , than what is affirmed in two of our laws , stat. of carlisle , e. . and the stat. of provisors , e. . that the church of england was founded in prelacy , or diocesan episcopacy . for our first bishops were so far from being confined to one church or town , that at first in the saxon-division of kingdoms , every bishop had his diocess equal with the extent of the kingdom , except in kent , where one suffragan to the archbishop at rochester was confirmed . the first conversion of the english nation to christianity from paganism , was by the diocesan bishops , who were sent hither from several parts , and the presbyters imployed by them ; and as the number of christians increased , the number of bishops did so too ; so that in the parts of mercia one diocess was divided into five , that they might the better look after the government of them ; and every bishop , as appears by the saxon-councils , was bound to see parochial churches built , and the clergy to be settled in them to attend upon the duties of their function among the people committed to their charge . that which i have aimed at in this discourse , was to shew , that the original constitution of this church , was episcopal ; but yet that the bishops did still design to fix a parochial clergy under them , as churches could be built and endowed . it remains now to shew , that this constitution of a parochial clergy , is more reasonable , than that of an unfixed , and unsettled clergy by law ; which will easily appear , if we consider , . the greater advantage as to unity , and real edification among the people . for this makes them to be as one body within certain bounds : and the people know whither to resort for publick worship and sacraments ; and the inconveniencies , as to the difference of mens abilities , is not so great , as the inconveniency of a broken , divided people , as to religion ; which always creates suspicions and jealousies , and generally contempt and hatred of each other . and i think every wise and good christian will consider , that which tends to peace and unity , is really more edifying than a far better talent of elocution , or the most moving way of exciting the fancies and passions of hearers . for , s. paul tells us , charity is beyond miraculous gifts . it is easie to observe , that the wisest methods are seldom the most popular ; because the generality of mankind do not judge by reason , but by fancy , and humour , and prejudices of one kind or other . from hence the heats of enthusiasm , and odd gestures , and vehement expressions , with no deep or coherent sense , take much more with ordinary and injudicious people , than the greatest strength and clearness of reason , or the soundest doctrine , and the most pious exhortation , if they be not set off in such a way as strikes their imaginations , and raises their passions . and this is that which such do commonly call the most edifying way of preaching , which is like the coming up of the tide with noise and violence , but leaves little effect ; whereas the other is like a constant stream which goes on in a steady and even course , and makes the earth more fruitful . the one is like a storm of thunder and lightning , which startles , and confounds , and amuses more ; but the other is like a gentle rain which softens and mellows the ground , and makes it more apt to produce kindly and lasting fruit. we are to judge of true edification , not by the sudden heat and motion of passions , but by producing the genuine effects of true religion ; which are fixing our minds on the greatest and truest good , and calming and governing our disorderly passions , and leading a godly , righteous and sober life . but we too often find violent and boisterous passions , an ungovernable temper , envy , strife and uncharitableness , growing up with greater pretences to zeal , and better ways of edification . i never expect to see the world so wise , as to have persons and things universally esteemed according to their real worth. for there will be a tincture in most persons , from temper , and inclination , and the principles of education ; but generally speaking matters of order and decency , and things which tend to a publick good , affect those most , who have the best judgment and temper ; and irregular heats , and disorderly methods of praying and preaching , those whose religion makes more impression upon their fancies , than their judgments , and is seen more in the inflaming their passions , than in keeping them in their due order . . there is a greater advantage as to discipline : for , if among the teachers they are under no bounds nor subjection to a superiour authority , it is very easie to avoid any kind of censure for the most corrupt doctrines or practices . we cannot boast much of the strict exercise of discipline among us ; and one great reason is , that many have more mind to complain of the want of it , than to do their endeavour to amend it . we hear of many complaints of the clergy in general , and sometimes by those who have more mind to have them thought guilty , than to prove them so , for fear they should acquit themselves , or at least the church should not bear the blame of their miscarriages . but we cannot proceed arbitrarily , we must allow them timely notice , and summon them to appear , and a just liberty of defence ; but if upon proof , and sufficient evidence we have not proceeded against them with the just severity of the law , then we ought to bear the blame , but not otherwise . but whatsoever personal neglects or faults there have been , or may be , my business is to shew , that our way is much better fitted for the just exercise of discipline , than that of independant congregations , altho' the managers of them pick and cull out the best they can for their purpose ; and one would think , when they had made choice of members to their mind , and bound them together by an explicit covenant , they should be very easie , and tractable , and submissive to their own discipline . but they have found the contrary by their sad experience ; they grow too heady and wilful to bear any such thing as strict discipline ; for when they had the courage to exercise it , their congregations were soon broken to pieces , and the several divided parts were for setting up new heads one against another , till at last they found it was much easier to be teaching than to be ruling elders . and so they have let the reins of discipline fall to keep their congregations together . but suppose the teachers should fall out among themselves ; as , to give a fresh and late remarkable instance : suppose some set up antinomianism , and preach such doctrines to the people or flocks before you , which others think of dangerous consequence , what is to be done in such a case ? they may send some brethren to enquire whether the matters of fact be true . suppose they find them true , what then ? what is to be done next ? it may be , some would have them come up to their brethren and answer to the accusations brought against them . but suppose they will not ; and others of the brethren say , they ought not ; and so fall into heats and disputes among themselves about it , and make new parties and divisions : is not this an admirable way of preserving peace , and order , and discipline in a church ? and i am as certain , this is not the way of christ's appointing , as i am , that god is the god of order , and not of confusion ; and that when christ left the legacy of peace to his church , he left a power in some to see his will performed . but these things can never be objected against us ; for all are members of the same body , and are governed by certain and known rules ; and if any be guilty of open violation of it , the way is open to accuse and prosecute them ; and if they be found guilty , the censures of the church will render them uncapable of doing it in such a station ; or at least , to bring them to confession of their fault , and promise of future amendment . and now i leave any one to judge , whether the parochial clergy are not under greater and better discipline , than the teachers of the separate congregations . ii. but the great complaint of such men is , that we want parochial and congregational discipline , so that faults should be examined and punished where they have been committed ; but instead of that , all matters are drawn into the ecclesiastical court , and there causes are managed so , as looks rather like a design to punish men in their purses , than for their faults ; and the delays are so great , that the court it self seems to be designed for penance , and grows very uneasie , even to those who are the members of our church . and some think that the proceeding against men upon articles of enquiry , not so agreeable to the rights and liberties of mankind . in answer to this , i shall consider , ( . ) the proceedings upon enquiry at visitations . ( . ) the method of proceeding in the ecclesiastical courts . ( . ) the inconveniencies of parochial discipline . . as to enquiries at visitations . they were grounded upon one of the main pillars of our law , viz. an ancient , immemorial custom founded upon good reason : in the first canons that ever were made in this church under theodore , archbishop of canterbury ; the second is , that every bishop is to look after the government of his own diocess , and not to invade anothers . and that in so doing they went about their diocesses in order to an enquiry and correction of miscarriages , is evident from the council under cuthbert , archbishop of canterbury , can. . . the first council at calechyth , can. . the constitutions of odo , archbishop of canterbury , can. . and the canon of edgar , can. . but in these saxon times , the visitations were annual , which were found inconvenient ; and therefore in the norman times , the archdeacons were taken into a part of the jurisdiction under the bishop , and visited those years the bishop did not . but we meet with no archdeacons with any kind of jurisdiction in the saxon times ; we read indeed sometimes of the name of archdeacons , but they had nothing to do in the diocess , but only attended the bishop at ordinations , and other publick services in the cathedral . lanfranc was the first who made an archdeacon with jurisdiction in his see. and thomas first archbishop of york , after the conquest , was the first who divided his diocess into archdeaconries ; and so did remigius , bishop of lincoln , his large diocess into seven archdeaconries , saith h. of huntingdon : and so it was with the rest ; of which there were two occasions , . the laying aside the corepiscopi in the western parts , as assuming too much to themselves . . the publick services which the bishops were more strictly tied to , as the king's barons in the norman times : which was the reason not only of taking in archdeacons , but likewise of archpresbyters or rural-deans , who had some inspection into the several deanaries , and assisted the bishop in such things , as they were appointed to do ; and then came in the other ecclesiastical officers , as vicars general , chancellors , commissaries , &c. for we read not of them here at all in the saxon times ; but about the time of hen. ii. the bishops took them for their assistance in dispatch of causes , when the king required their strict attendance on the publick affairs in the supreme court of parliament . . as to the method of proceeding in the ecclesiastical courts , it is no other than hath been continued here without interruption , till of late years , ever since the conquest . for the consistory-court , and the rules of proceeding there , were established by a law in the time of william the first . as far as i can find by king edward's laws , c. . the bishops did then proceed by the ecclesiastical laws , although they then sat in the county-court ; but this caused so much confusion , that william , by a general consent , and a charter directed to all the people of england , doth separate the ecclesiastical from the temporal courts ; which was enrolled as good law , r. . upon occasion of a suit of the dean and chapter of lincoln ; and therefore the charter of remigius , bishop of lincoln , is more mentioned than others , but the same was to all the bishops and counties of england , as appears by other copies of it . thus the consistory-court was first established , as a distinct court from the county-court , which it was not in the saxon times , for then the bishop sate with the civil magistrate in the same court ; and ecclesiastical causes were first heard and decided there . it seems the people wer very unwilling to go to a new place ; and therefore the law is inforced with severe penalties for contempt . and those who object against the reasonableness of the method of proceeding in those courts , must reflect upon some of the wisest nations in the world , who have gone upon the same grounds , in all that have received the civil law , and upon some of the greatest courts at this time in the kingdom , as the chancery and admiralty , which go by the same fundamental rules . as to any objections which arise from the personal faults of those who are imployed in them , that reaches , i am afraid , to all courts ; and it ought to be the work and business of those who look after them , to do what in them lies , to reform them , that others faults may not be laid at their doors . . but for those who would have a parochial or congregational discipline set up , as much better , and more effectual , i shall desire them to consider , that since matters of discipline are such , as that in them the reputation and interest of persons is very much concerned , they ought not to be left to arbitrary proceedings of any persons , but they ought to be managed by the certain and common rules of justice ; since every man hath a right to defend himself , when he is accused . and unless there be known and established methods of proceeding agreeable to natural justice , and the laws of the land , nothing would be more grievous and intolerable than the common exercise of a parochial discipline . for , . it cannot be presumed , that there will be competent judges . for every one who hath a faculty of preaching , hath not a faculty of judging in such cases . and where discretion and a judgment of circumstances is wanting , an honest mind will not secure men from doing injury , and exposing their judicature to contempt . . they have no fixed and established rules of proceeding , as there are in the ecclesiastical courts , which have been continued down from time to time , and allowed by the laws of the land. and what miserable disorder must follow an arbitrary method , when humour , and will , and passion may over-rule justice , and equity , and conscience ? . they are not under the check of the law , as the ecclesiastical courts are . for , if they exceed their bounds , either as to the nature of the cause , or the manner of proceeding , they are liable to prohibitions from the king's courts of justice ; but the law can take no notice of parochial or congregational judicatures , and so men may suffer without remedy . . they have no way to judge of legal evidence , which is very material when a person is accused . it is one of the nicest points in all criminal proceedings to determine what is good and sufficient evidence . for several things are to be weighed , before either witnesses or testimonies can be allowed . as to witnesses , it is required that they be persons of reputation , and free from infamy of law and fact ; that they be disinterested , and so not liable to the just suspicion of partiality ; that they be men of discretion and sane memory ; and all reasonable exceptions are to be allowed against them . as to testimonies ; they must be by our law upon oath ; and what authority have such persons to give an oath , and why shall a man be liable to suffer by a testimony , without one , when the law requires it ? they must be deliberate , and not given in passion , consistent as to time , place , and other circumstances : they must be certain and positive , and not upon hear-say , or the believing of other persons : they must be free from any just suspicion of contrivance and conspiracy , or any sort of corruption or partiality . and now is every parochial minister , or select congregation fit to judge of these matters , whereon the reputation , and consequently the interest of every person may be so deeply concerned ? . they have no way to prevent a percipitate and hasty sentence . suppose a man be accused by one of interest and passion , who possesses others with the same opinion before-hand , and the judges are all prejudiced before the matter comes to be heard ; and in popular assemblies some few men sway the rest , what a case is a person accused unjustly in ? he hath no liberty for others that are not of the congregation , altho' more disinterested , either to come in to judge , or to plead for him : he can have no advocate to defend him , or to shew the weakness , or inconsistency of the evidence against him . in all ecclesiastical courts , they may sometimes proceed summarily , but even then the fundamental rules of the court must be observed , as to proofs and witnesses , or else the sentence is void ; but here the sentence will take place , altho' there hath not been the least colour of justice in the whole proceedings . . here is no settled course of appeals in case of a wrong sentence . but where men are liable to mistake and passion , a right of appeal is one of the fundamental parts of justice . and therefore independent and arbitrary courts of judicature , as all congregational churches are , are inconsistent with the common rights of mankind , and that due subordination which ought to be in all societies in order to the preserving order and justice among men. but suppose , parochial discipline so settled among us , as to allow a liberty of appeal , how would the trouble , and vexation , and expence be increased , by going from the parochial sentence to the bishop's court , and from thence still further ? so that if there be some inconveniencies in point of distance , for persons to be summoned to appear at first so far from home , yet there is some compensation by the less trouble and charges , if due care be taken to prevent delays , and unnecessary expences ; which ought to be done : and those who do make the greatest clamour against our courts , are rather willing they should continue such as they may have cause to complain of , than to do their endeavours to reform them . thus i have endeavoured to shew the just bounds and limits of parochial cures . ii. i now come to consider the just measure of that diligence which is required under those limits . for our church requires faithful diligence in preaching , and sacraments , and prayers , and reading the holy scriptures . if then we can understand what this faithful diligence implies , we may come to satisfie our selves whether we do our duty or not . . faithful diligence implies serious application of our minds to the main end and design of our holy function : which is to do good to the souls of men , especially to those committed to your charge . and an idle , careless , santering life ; or one too busie and distracted with the cares of the world , are not consistent with it . i do not go about to take you off from necessary business , and reasonable allowances , as to health and studies ; but that the doing good to your peoples souls , ought to be the principal and chief design of your thoughts , studies and endeavours . and if the people be satisfied that this is really your design among them , you will find , that your doctrine will be easier received , your persons esteemed , and your labours valued . it is possible , you may meet with a froward , peevish , self-willed people ; and it is hard when a man is only set to water and mend a hedge made up of briars and thorns ; the more pains he takes , the more scratches he may meet with ; but if it be your lot , be not discouraged from doing your duty : remember what sort of people the prophets were sent to , and what usage they had from them ; what hardships and reproaches christ and his apostles underwent from a very unkind world ; but a patient continuance in well-doing , gave them inward satisfaction in the midst of all , and did by degrees gain the christian doctrine access to the hearts of those who most opposed it . . it implies an honest and conscientious care of discharging the known and common duties of your function , as preaching , praying , catechizing , administring sacraments , visiting the sick , &c. a diligent person is one who neglects no good opportunities of doing his business , but watches for them , and studies to improve them to the best advantage . can those satisfie themselves that they use faithful diligence , who shamefully neglect their cures , and care not how seldom they come at them , nor how they are supplied , if they make a good bargain for their own advantage ? i cannot deny , but that according to the laws of the land , and the canons of this church , some persons are allowed to have two several cures , which must imply a non-residence for some time at least , upon one of them . but they still suppose , that there are persons resident upon them , who are allowed by the bishop to be sufficient to discharge the necessary duties of the place , and not to be taken up like post-horses , the next that comes , and to be turned off at the next stage . i think it a very great fault in those who have pluralities , that they look no more after the curates they imploy , and that they do not bring them to the bishop to be approved , and to have their allowance fixed , before they imploy them . they think no more is required but to pay the fees for a licence ; but i have , and shall endeavour to convince the clergy of this diocess , that licences are not to be taken as st. peter took the fish that first came with money in the mouth of it ; i hope to be able to satisfie them , that it is not the fees that we aim at , but at persons doing their duties . and our canons are express , that no curate is to be allowed in any cure of souls , that hath not been examined and admitted by the bishop or ordinary having episcopal jurisdiction , and attested by the hand and seal of the bishop . how then come curates to officiate without ever coming to the bishop at all , or undergoing any examination by him ? this is a plain breach of the canon , and ought to be reformed . i do not say , that such licences as have customarily passed without the bishop's hand and seal , are void ; but i do say , that they are irregular and voidable , and none ought to be allowed , which are not according to the canon ; and that no incumbent ought to take any one for his curate till the bishop hath allowed and approved him under his hand and seal . and this remedy the law gives us against the inconveniencies which attend pluralities by weak and insufficient curates ; but no man is excused either by law or canons from attending the duties of his place at some times in his own person , and that good part of the year ; in which time he ought to do the duties of his place with diligence and care ; and to acquaint himself with his parishioners , in order to the better discharge of his duty towards them . they have very mean thoughts of their holy function , that think the main part of it lies only in the pulpit ( i wish even that were minded more ) but all the ways you can do good among your people , is within the compass of your duty ; not meerly to instruct them in religion , but to prevent quarrels , and contentions , and meetings for debauchery , which tend to corrupt mens minds , and draw them off from the principles as well as practice of true religion : it is your duty to endeavour to make them live like good christians and good neighbours , and to set patterns your selves of sobriety , meekness , charity , and of every thing praise-worthy . . faithful diligence implies filling up your vacant hours with the most useful studies , as to the main end of your function . for in your ordination you solemnly promise to lay aside the study of the world and the flesh , and to apply your selves to the study of the scriptures , and such studies as help to the knowledge of the same . but it may be seasonably asked by some , what method and course of studies will best conduce to that end ? to this i shall endeavour to give a short answer so far as it concerns the main end of your function , which it is most proper for me to consider at this time . . look well to the temper of your minds , that it be humble , sober , and religious . for a vain , affected and self-opinionated person can never have an inward and hearty relish of divine truths . the scriptures will appear to him either too plain and easie , or too obscure and intricate ; some things will seem low and flat , and others too lofty and poetical . those who read not with a good mind , will have always something or other to cavil at . it is a mighty advantage in all spiritual knowledge to come to it with an unbiassed mind , free from the power of prejudice and evil inclinations . for these give a strange tincture to the mind , and hinder the clear and distinct perception of revealed truths , as above the natural faculties which god hath given us . some are therefore so fond of philosophical speculations , that unless the letter of the scripture suits with them , they are ready to despise it , and only shame and fear keep up any reverence for it in them . some are altogether for mathematical evidence and demonstration , as though the way to salvation were to be shewed by lines and figures ; why do they not first run down all laws and history , because they are not capable of mathematical evidence . and it argues a far greater measure of true understanding to know when to be satisfied , than to be always disputing and cavilling . the plainness of scripture in some places , is no more an offence to one that wisely considers the design of it , than a beaten road is to a traveller who desires to know which is the true way to his journeys end , and the plainer it is , the more he is satisfied with it . but the scripture wants not its depths , which require a very attentive and considering mind , and will afford matter for exercise of thoughts , and frequent and serious meditation . the excellency of the scripture is , that all necessary things are plain ; and such as are not so , although they are not necessary to be known for salvation , yet require our diligence to understand them ; and give great satisfaction as far as we can know them . . not to perplex your minds with difficulties above your reach , as in what relates to the eternal decrees , and the particular manner of that unity of the godhead which is consistent with the trinity of persons . for since the scripture doth assert both , we may safely be contented with what the scripture reveals , although the manner of it be incomprehensible . and as to the other the scripture is clear and positive , as to the moral parts of our duties ; and if we are to seek how to reconcile them with gods decrees , we have this certain rule to go by , that without doing our duty , we cannot be happy ; but we may without understanding how the freedom of our wills is consistent with the divine prescience and decrees . . not to fix plain and necessary duties upon new and unaccountable theories . as for instance ; there are no duties of greater consequence , than the love of god and our neighbour : but it would be unspeakable mischief to religion to fix the love of god upon so absurd a principle as his being the immediate cause of all sensation in us . and it would have made the christian doctrine ridiculous to found its fundamental precepts on extravagant notions , and mystical contemplations . and so for the love of our neighbours to allow only a love of benevolence and charity , and not of delight and complacency , is to make nice distinctions , where god hath made none . but to take away the love of complacency in friends and relations , and the blessings which god gives for the comfort of life , is to overthrow the due sense of god's goodness in giving them ; and to take away a great measure of that gratitude we owe to god for them . but when any seem very fond of such notions , and shew so much self-complacency in them ; it is impossible upon such principles that they should love their neighbours as themselves . . if you would understand the new testament aright , fix in your minds a true scheme of the state of the controversies of that . time , which will give you more light into the true knowledge of the scriptures , than large volumes of commentators , or the best systems of modern controversies . as what the iewish notions of justification by works , and expiation of sin , were ; and of god's decrees of election and reprobation as to themselves : and what the principles of the judaizing christians were , as to the joyning the law and the gospel , and the pythagorean superstition together . and what the gnosticks , who were professed libertines , held , as to grace , redemption , liberty , government , &c. all which tend very much to the clearing the sense of the new testament . . where the sense appears doubtful , and disputes have been raised about it , enquire into the sense of the christian church in the first ages , as the best interpreter of scripture ; as whether the apostles left bishops or presbyters to succeed them in the government of churches ; whether the apostles appointed the lords day to be observed as the day of publick worship ; whether baptism were not to be administred to infants as well as circumcision , both being seals of god's covenant ; whether divine worship doth not belong to christ , and were ●o● given to him in the hymns and doxologies of the primitive church ; and , whether divine worship can be given to any creature ; whether the form of baptism was not understood so , as to imply a trinity of persons ; and , whether all true christians were not baptized into this faith ; and consequently , whether denying the trinity be not renouncing christian baptism . these and many other such questions of great importance , receive great light from the writings of the first ages . but some rules may be very useful for right judging the sense of those times . . to distinguish the genuine and supposititious writings of that time. this hath been examined with so much care by learned men of this last age , that it is no hard matter to make a true judgment about them . . in those that are genuine , to distingush the sense of the church , delivered by them , from their own particular opinions ; the sense of the church is best known by publick acts , as by creeds , sacraments , hymns , prayers and censures of such as oppose or contradict them . . to put a difference between the authority of private persons , and of the bishops and governours of the church , who may be presumed to understand the sense of the church , and the doctrine of the apostles better than the other . and so clemens , ignatius , polycarp , theophilus , and irenaeus are more to be trusted , as to the sense and practice of the christian church , than such as hermes , and papias , and tatianus , who had neither the judgment nor the authority of the other . . that may be justly looked on as the sense of the church , which is owned both by the friends and the enemies of it . the enemies of christianity charged them with many things , which the apologists utterly denied . now we find pliny charging the christians with singing hymns to christ , as to god ; several christian writers of that time mention this , but never go about to soften , or to excuse , or deny it . and so we find lucian deriding the christians for the doctrine of three and one ; which the apologists of that time are so far from denying , that they assert and vindicate it , as appears by athenagoras and others . but these things i only touch at , to shew how the sense of the church is to be taken , and how from thence the sense of the scriptures may be cleared . of the particular duties of the parochial clergy , at a visitation , october th . . my brethren , as often as it pleases god in his wise providence to bring me among you in the ordinary course of my visitation , i cannot satisfie my self that i do my own duty , unless i put you in mind of doing yours . we live in an age , wherein the contempt of the clergy is too notorious not to be observed ; but the true reasons are not so well considered as they ought to be . some , to increase the contempt of the clergy , have given such reasons of it , as seem to make it a light and jesting matter ; but truly it is very far from being so : for the contempt of religion is oft-times both the cause and the effect of it . it is not at all to be wondred at , that those who hate to be reformed , should hate those whose duty and business it ought to be to endeavour to reform them . but when religion is struck at through our sides , we ought with patience to bear the wounds and reproaches we receive in so good a cause . wo be to us , if those who are enemies to religion , speak well of us : for it is a strong presumption that they take us to be of their side in our hearts , and that we are distinguished only by our profession , which they look on only as our trade . and we give too much occasion for such suspicions of us , if we do not heartily concern our selves for the honour and interest of true religion in the world , whatever we may suffer , as to our reputation , for the sake of it . it is possible , that if we go about to humour such persons in their infidelity and contempt of religion , we may escape some hard words for the present , but they cannot but have the greatest inward contempt and hatred of all those who live upon religion , and yet have not the courage to defend it . and what satisfaction can such have , when they reflect upon themselves , and think what occasion they have given to confirm such persons in their infidelity , and to make them think the worse of religion for their sakes . the best thing we can do to recover the honour of religion , and to set our profession above contempt , is to apply our selves seriously and conscientiously to do our duties . for if others find that we are in earnest , and make it our great business to do all the good we can , both in the pulpit , and out of it ; if we behave our selves with that gravity , sobriety , meekness and charity which becomes so holy a profession , we shall raise our selves above the common reproaches of a spiteful world ; and do what lies in us to stop the mouths at least , if not to gain the hearts of our enemies . for the real esteem which men have of others , is not to be gained by the little arts of address and insinuation , much less by complying with them in their follies ; but by a steady and resolute practice of our own duties , joyned with a gentle , and easie , and obliging behaviour to others , so far as is consistent with them . but a proud , supercilious , morose behaviour towards our greatest enemies , doth but make them much more so ; if any thing softens them , and makes them more tractable , it will be , joyning a firmness of mind , as to our plain duties , with humility and kindness in other matters . but what are these duties we are obliged to so much care in the performance of ? there is a twofold obligation lying upon us . i. that which is more general from the nature and design of our imployment ; which is the cure of souls ; and that requires great diligence and faithfulness , frequent recollection and consideration , serious application of our selves to divine studies and imployments ; a prudent use of the best methods for the convincing , reproving , directing and assisting those who are committed to our care. and all these are implied in the nature of our office , as it is set forth in holy scripture ; wherein we are described as laborers , and therefore must take pains , and not spend our time in vain and idle company : as teachers , and therefore ought to be stored with a good stock of knowledge our selves , and be ready to communicate it to others : as pastors , and so we ought to look after our flock , and not leave them to the careless management of others , who are not so concerned for their welfare , as we ought to be : as ambassadors from christ , and therefore we are bound to look after the business we are sent upon and the great weight and importance of it , as to your own salvation as well as others : as stewards of the mysteries of god , and the first thing required in them , is to discharge their trust honestly and faithfully , remembring the account they must give to god. but these , you may say , are only general things , and do not determine and limit our duties within certain bounds ; what is there which doth fix and determine our duties , as to the station we have in this church ? ii. i come therefore to the special duties , which by the ancient constitution of this church , and the ecclesiastical laws of it , are incumbent upon you . and you are to consider , that as the law hath taken care for your maintenance and subsistence in doing your duties ; so it doth suppose your careful performance of them , not only in regard to the general rule of conscience , but to that particular obligation you are under , as members of this church . and therefore i shall enquire into two things : i. the duties you are under this obligation to . ii. the incouragement which the law gives in consideration of it . i. the duties are of two sorts : . publick and solemn . . private and occasional . . publick and solemn ; and those either respect the time , or the duties themselves . . as to the times of solemn and publick worship , which are the weekly lord's days , and the other holy-days . . i begin with the observation of the lord's days ; which i shall now make appear to have been set apart for the solemn worship and service of god , especially by the clergy , from the first settlement of a parochial clergy in this church . in a provincial council held at cloveshoo or cliff , a. d. . the king and nobility being present ( where the archbishop and bishops assembled for regulating the worship of god in parochial churches then newly erected in many places ) the fourteenth canon is express , that the lord's day ought to be celebrated with due veneration , and devoted only to divine worship ( divino tantum cultui dedicatus ) and the presbyters are required to officiate in their several churches , both in preaching and praying ; and the people are required to let alone their common worldly affairs , and to attend the publick worship of god. the canons of egbert , archbishop of york , are as clear and full for the northern province , as the other for the southern , can. . that nothing is to be done on the lord's day , but what tends to the worship and service of god. and can. . that christ sanctified the lord's day by his resurrection . but because these canons of egbert will be often used , something ought to be observed to clear their authority . sir h. spelman saith , there are several ancient mss. of them . mr. selden owns the cotton ms. to be of the time of h. . but he suspects that another made the collection , and put it under his name . but it was no strange thing for the great bishops to make such a collection of canons ; for so it was done by theodore , archbishop of canterbury ; by theodulphus of orleans ; isaac lingonensis , chrodegangus , herardus , hincmarus , &c. and egbert was not only a great man , brother to the king of the northumbrians , but a great promoter of learning and ecclesiastical discipline , as appears by his dialogue about the latter , and the other by alcuin's epistles about him , and bede's epistle to him a little before his death . and the agreement between the capitulars and these canons , might come from alcuin's carrying them over into france with him . in the saxon canons , c. . it is said , that the lord's day on which our saviour rose from the dead , is to be devoted wholly to the service of god , excepting only works of necessity and charity . these canons are translated from those of theodulphus , bishop of orleans , a. d. . and it is observable , that as the christian religion prevailed in these northern parts , so the religious observation of the lord's day was enforced , as appears by the canons of the gallican church , as well as this . as in the famous canon of the council of mascon , a. d. . where the bishops assembled , complain of the neglect of the lord's day , and agree to put the people upon a stricter observance of it . and so before in the council of orleans , a. d. . but in both these canons they avoid a iewish superstition as well as profane neglect . they allowed both works of necessity and conveniency , and did not place the observation in a bare rest , but in attendance on the worship of god ; and forbad all manner of secular imployments which were inconsistent with it . nay , theodulphus his canon goes higher , tantummodo deo vacandum , the whole day ought to be spent in religious and charitable imployments . the greatest men in our saxon churches asserted the same . bede saith , that the apostles appointed the lord's day to be observed with religious solemnity , and therein we ought to devote our selves to the worship of god ; tantum divinis cultibus seviamus . and to the same purpose speaks alcuin , who was bred up under egbert , archbishop of york , and calls bede the greatest master of his time ; and in another place he saith , one seventh day is set apart among christians , as another had been among the iews for the service of god ; and that therein we ought to attend to the care of our souls , and to lead a spiritual life . bede distinguishes between the patriarchal and iewish sabbath . the latter he calls a carnal , and the other a spiritual sabbath ; the former lay in a strict abistnence from labour , but the other in prayer , and devotion , and spiritual contemplations . the iewish rest , he saith , was inutile , 〈◊〉 , & luxuriosum . for the 〈…〉 ●llowed recreations and sports on their sabbaths ; vacant ab opere bono , saith he , non ab opere nugatorio . vacant ad nugas , saith s. augustin ; but he saith , they had better plow or dig , than dance on that day , or sit in the theater . and he tells us , that the heathens objected against the iews , that they spent one day in the week in idleness . for they supposed the bare rest to be the sanctification of the day which was commanded ; and the spending any part of it in the publick worship , to be voluntary devotion . but the better sort of the iews thought the rest was appointed for the knowledge of the law , and spiritual imployments . so philo , iosephus , aben-ezra , kimchi , and menasseh ben israel . it seems most reasonable in this case to distinguish between the legal rest strictly required by the fourth commandment , and the original rest in remembrance of god's resting from the work of creation . the former was a sign between god and the people of israel , as it is often called in scripture ; and the other was a commemorative sign , but such as excited them to the worship of the creator ; and therefore the patriarchal sabbath , as bede observes , was of a spiritual nature . and such a spiritual sabbath , as s. augustin calls it , ought to be observed by christians in the duties of god's worship , as well as in spiritual and holy thoughts . but the iewish sabbath , he often-saith , doth not oblige christians . i the rather mention him , because bede followed his doctrine herein ; and that of gregory i. who was the great instrument of promoting the conversion of our ancestors to christianity . and he declares himself fully , both as to the cessation of the iewish sabbath , and the religious observation of the lord's day . it seems there were some then , as there are among us now , who were for the strict observation of the saturday-sabbath . but gregory saith , they might as well insist upon circumcision and sacrifices , as the iewish sabbath . but yet he adds , we ought on the lord's day to abstain from worldly imployments , and devote our selves unto prayers , that we may make some amends for the weeks negligence , by the devotions on that day . and this devoting the lord's day to the service of god , is entred into the body of the canon law ; and taken out of ivo , and by him from the canons of the gallican church , as appears by several councils . our lyndwood mentions that canon as in force here , die dominicâ nihil aliud agendum , nisi deo vacandum . and he takes some pains to explain it , by distinguishing , . works servile materially and formally , as plowing , sowing , markets , law-days , &c. these are generally forbidden . . acts spiritual materially and finally , as all acts of piety and devotion , and these we ought to attend upon with care and diligence . . acts not servile in themselves , but done for a servile end , as studies and designs for gain . . acts servile in themselves , but not so in their end ; as the man's taking up his couch on the sabbath-day , whom christ cured . he affirms , that there is a moral part in the fourth commandment , which , he saith , is a spiritual rest , or a time set apart for god's service : which he takes from aquinas , who saith the substance of the command is moral ; but he doth not make it to be one day in seven , but some determinate time , which , he saith , the church may appoint ; but then it must be imployed in the service of god ( vacare rebus divinis ) as things were said to be sanctified under the law , which were applied to god's service . but notwithstanding this judgment of aquinas , some great men in the church of rome have thought one day in seven , moral ; and that the proportion which god himself had appointed , cannot be lessened . for altho' mankind could not by natural reason find out the proportion , yet being once revealed , it doth not cease to oblige , unless something figurative and symbolical , or peculiar to the iewish nation be discovered in it . bellarmin makes that the reason of the institution of the lord's day , because god's law required that one day in seven should be set apart for the worship of god ; but the apostles thought it not fit to observe the iewish sabbath , and therefore changed it into the lord's day . covarruvias saith , that all divines agree with aquinas , that there is something moral in the fourth command , which continues to oblige ; and that the lord's day is of divine institution . and to him the roman editors of the canon law referr , as to this matter . azorius confesseth , that the observation of the lord's day hath something of the divine and natural law in it , which requires one day in a week should be consecrated to the service of god , and that it is most agreeable to reason . and he adds , that panormitan , sylvester , and other canonists held the lord's day to be of divine institution . suarez saith , that the church doth observe one day in seven by virtue of the divine law ; that proportion being so agreeable to natural reason , that it cannot be altered . thomas waldensis , who lived here in the time of h. . observes , that even then there were two extreams in mens opinions about the observation of the lord's day ; some allowed no kind of work , and others , any . but he shews , that the law of nature requires some solemn days for divine worship ; and that then there ought to be a rest from other labours , because they hinder the mind from that attention necessary to the service of god : and necessary works are left to a few , that others may be more at liberty . in the saxon laws we find many against the profanation of the lord's day by slavish imployments , by markets and trading , by folkmotes and law-suits , &c. so that great care was taken then , that the lord's day should be duly observed . after the norman times , we have several constitutions to inforce the strict observation of the lord's day . in the time of h. . hubert de burgo saith , that custom may derogate from other holy-days , but not from the lord's day ; because they are not commanded by god , as that is . since the reformation our book of homilies goes upon the same grounds which were used in the saxon times , viz. that the iewish sabbath doth not oblige us ; but however to observe the like proportion of time , and devote it to the service of god. mr. hooker saith , that we are to account the sanctification of one day in seven a duty which god's immutable law doth exact for ever . but what is meant by this sanctification of one day in seven ? if it be understood according to the old canons , it will fill scrupulous minds with more doubts and fears about the right observation of it . origen saith , the observation of the christian sabbath lies in these things ; . a forbearance of worldly business . . attendance on the publick worship . . divine meditation on things invisible and future . haec est observatio sabbati christiani . and in another place , he requires besides publick worship , private meditation and reading the holy scriptures . s. chrysostom insists very much upon the same in several places , and on different occasions . and altho' it be in his popular sermons , yet he would certainly not put them upon any thing , but what he thought very fit to be done . and they must have a mean opinion of him , who think his eloquence carried him too far in this matter . i shall conclude with the opinion of lyndwood , a learned and judicious canonist ; and he observes a threefold sanctification of the lord's day . . by abstinence from sin , which is necessary at all times . . by abstinence from such bodily labours as hinder the mind's attendance upon god's service . . by the whole imployment of our minds in divine matters ; and this he calls the perfect observation of it . these things i have the more largely insisted upon , to shew , that the religious observation of the lord's day , is no novelty started by some late sects and parties among us , but that it hath been the general sense of the best part of the christian world , and is particularly inforced upon us of the church of england , not only by the homilies , but by the most ancient ecclesiastical law among us . but this is not all , for the ancient as well as modern canons require the observation of holy-days likewise . the canons of egbert require not only prayers , but preaching then , can. . . the council of cloveshoo , can. . distinguishes the holy-days relating to our saviour , from the rest ; and saith , they are to be observed in a solemn and uniform manner , and the rest according to the roman martyrology ; which , i suppose , were those repeated then in the diptychs of the church ; which custom continued longer at rome , than in other churches ; but it was generally disused before the time of charles the great . the custom in rome , in gregory's time , was to observe the saints days with the solemn service at one church , as appears by his homilies on the evangelists , which were many of them preached on those occasions ; as of s. felicitas , hom . s. agnes , hom. , . s. felix , hom. . s. pancrace , hom. . &c. and of others who were roman martyrs ; and therefore had a particular solemnity appointed for them . but as to other saints days , it appears by the antiphonarius and sacramentary of gregory i. that they had particular anthems and collects proper for them in the offices of the day ; but i do not find that the generality of the people were so strictly tied up , when the offices were over , as they were on the lord's days , and the greater festivals relating to our saviour . in the council of cloveshoo , can. . i observe , that the natalitia sanctorum , i.e. the anniversary saints days , were observed with particular psalmody and anthems ; and can. . the days of gregory and augustin , the two great instruments of converting the nation , were only to be kept as holy-days by the clergy , without any particular obligation on all the people . so that the holy-days of strict observation then , seem to have been no other than those which relate to our saviour , called dominicae dispensationis in carne festivitates ; the rest had some proper offices which were performed on their days ; but the people were to attend them , as well as they could ; but after there was not this strictness required , as upon the greater holy-days ; and as it was in the church of rome afterwards , when they made the obligation of conscience to extend to all holy-days appointed by the church . but it is observable , ( . ) that this obligation is taken from those canons which mention only the lord's day , as appears by bellarmin . ( . ) that they kept up the distinction of greater and lesser holy-days . ( . ) that they allow the bishop to dispense , as to some works on holy-days . lyndwood observes , that the abstinence from work is not alike , but as the church hath required it ; and that if a bishop's licence cannot be had , a less will serve . our church , can. . requires holy-days to be observed with works of piety , charity , and sobriety ; but gives no rule as to abstinence from works , or the strict obligation of conscience . . i now come to the particular duties of the clergy on the days which are solemnly devoted to the service of god. . the constant and devout attendance upon , and solemn reading the prayers of the church , as they are appointed . in the old saxon canons the presbyters are required to officiate constantly at prayers in their churches ; so in the council at cloveshoo ; can. . the canons of egbert , can. . canons of edgar , can. . but how if the people will not come to the prayers ? you ought , what lies in you , to remove the causes of such neglect ; which arises generally from these things ; either a gross stupidity and regardlesness of religion , which is too common in the world , or from prejudice and principles of education , or the interest of a party ; or from not reading the prayers with that attention and devotion which is fit to raise an esteem of them . the other two , you ought to do what you can to remove ; but this is your own fault if you do it not . we are not to please the fancies of people by an affected variety of expressions in prayers ; but we ought to do what we can to excite their affections , which is done as much by the due manner of reading , as by figures in speaking . and the people are uneasie at staying , when they see the minister read them so fast , as though he minded nothing so much as to be at the end of them ; or when he mangles them so , as if he had a mind to make the people out of love with them . . the next duty is preaching ; and truly that need to be looked after , when the esteem of our profession depends so much upon it . we have none of those methods which those on both sides make so much use of ; we can neither comply with the people in gestures , and phrases , and enthusiastick heats , nor with the superstitious devotions and priest-craft of others . of all churches ours hath the least reason to be charged with it , since they let go so many advantages over the people by the reformation . thanks be to god , we have scripture , and reason , and antiquity of our side ; but these are dry and insipid things to the common people , unless some arts be used to recommend them . but since our main support lies in the honesty and justice of our cause , without tricks and devices , we ought to look very well to that part of our profession which keeps up any reputation among the people ; and that is preaching . those who are so weak or lazy , as to be glad to have that laid aside too , in a great measure , never well considered the design of our profession , or the way to support it . it 's true , for some time preaching was an extraordinary thing in the church ; and none but great and eloquent men of authority in the church were permitted to preach , and the greatest bishops were then the preachers , as appears by the sermons of s. ambrose , s. chrysostom , s. augustin , &c. and even some of the bishops of rome , whatever sozomen saith , were frequent preachers , as appears by gregory's homilies on ezekiel and the gospels . and if it were not then practised he did very ill to complain of the burden of it , and the danger of neglecting it . but in other churches while the bishop and the presbyters lived together , before parochial cures were settled , the presbyters had no constant office of preaching , but as the bishops appointed them occasionally . but afterwards , when the presbyters were fixed in their cures , they were required to be very diligent and careful in preaching , or instructing the people committed to their charge , as may be seen in many early canons of the gallican church ; and so it was here in england : council of cloveshoo , c. . . egbert , can. . and that not only in the moving way in the pulpit , but in the familiar and instructing way , which we call catechizing ; concil . cloveshoo , c. . can. egbert . . both ought to be done , because they are both very useful . the principles and foundations of religion must be well laid , to make the people have any taste or relish of preaching ; otherwise it is like reading mathematicks to those who understand not numbers or figures . erasmus observes , that the sense of religion grows very cold without preaching ; and that the countess of richmond , mother to h. . had such a sense of the necessity of it in those times , that she maintained many preachers at her own charges , and imployed bishop fisher to find out the best qualified for it . and since the reformation the church of rome hath been more sensible of the necessity of it , as appears by the council of trent . cardinal borromeo , one of the most celebrated saints since that time , frequently insists upon it , gives directions about it , and speaks of it as a thing , which tends very much to the glory of god , and the salvation of souls . and to the same purpose other great men among them , as cardinal palaeotus , godeau , bordenave , and others . would it not then be a great shame for us , who pretend to a zeal for reformation and the true religion , to neglect or lessen the reputation of those things which our adversaries have learnt from us , and glory in them ; and those are diligence in preaching and catechizing ? which none can despise who value religion , none can neglect who have any regard to the interest or honour of their profession . . the next duty is the solemn administration of the sacraments , which ought to be done in the publick assemblies , where there is not a great reason to the contrary . the saxon canons are express , that baptism , unless in case of necessity , should be administred only in due times and places , egber . can. , . while the ancient discipline was kept up , and baptism only celebrated at the great festivals , there was a necessity of its being publick ; and the catechumens underwent several scrutinies , which lasted several days in the face of the church , as s. augustin observes , after they had been kept under private examination for some time before . but when whole nations were not only converted , but infants generally baptized , the former method of discipline was changed . but yet the church retained her right as to satisfaction about the due admission of her members . and that is the true reason why , after private baptism , the child is required to be brought to the publick congregation . for baptism is not intended to be done before a select number of witnesses , but in the face of the church , which is the regular and solemn way ; however , the bishop may dispense in some particular cases , which he judges reasonable . at first baptism was administred publickly , as occasion served , by rivers ; as bede saith , paulinus baptized many in the rivers , before oratories or churches were built . afterwards the baptistery was built at the entrance of the church , or very near it ; which is mentioned by athanasius , s. chrysostom , s. ambrose , s. augustin , &c. the baptistery then had a large bason in it , which held the persons to be baptized , and they went down by steps into it . afterwards when immersion came to be disused , fonts were set up at the entrance of churches : but still the place was publick . but in case of necessity there is a form prescribed ; and i do not see how any , without leave , can use the form of publick baptism in private houses ; which is against both our ancient and modern canons . in the greek church it is deprivation to do it ; and the synod under photius confirms it , both as to the eucharist and baptism , because publick order is to be preserved . but it is there understood to be done in opposition to the bishop's authority , whose consent may make the case different , if they judge it reasonable . but ministerial officers are not judges in an equitable case against a standing rule . . another duty of the parochial clergy is , to be able and ready to resolve penitential cases , which relate to the internal court of conscience , and not the external and judiciary court , which respects the honour of the church , as to scandalous offences committed by the members of it . and this takes in the private and occasional duties of the parochial clergy ; for they ought to inform themselves of the spiritual condition of their people , that they may be able to give suitable advice and directions to them both in health and sickness : but chiefly to be able to give them safe and seasonable advice under troubles of conscience by reason of wilful sins . duarenus , a very considerable lawyer , thinks the main business of the clergy , as to the cure of souls , lies in the power of binding and loosing , i. e. in dealing aright with the consciences of men , as to the guilt of their sins . and the rules of the penitential court , are different from those of the ecclesiastical court , as well as the end is different . in the saxon times , there were both here . there were ecclesiastical law which related to judicial cases , wherein a publick penance was injoyned in order to the churches satisfaction . but there were many cases which were not publick , and yet great care was to be used , as to the direction of penitents , as appears by the penitentials of theodore and bede in the saxon times . whereby we learn that a difference was to be observed , as to the nature of offences , and the circumstances of persons and actions , and the measure of contrition ; and the particular method is set down in the penitential books , which was in very material circumstances different from the methods used in the church of rome . but it is a thing necessary for every parochial minister to be able to settle doubting consciences , and to put them into the best methods of avoiding sin for the future , without which the absolution of the priest signifies nothing . for where god doth not absolve , the church cannot . . giving a good example to the people committed to your charge . this is often mentioned in the saxon canons : council at cloveshoo , c. . canons of egbert , , , , , . in the laws of alfred , c. . of edward c. . constit. of odo , c. , . of edgar , , , , , , . of canutus , c. . and in the conclusion of one collection of his laws are these words , happy is that shepherd , who by his good life and doctrine leads his flock to eternal and heavenly ioys ; and happy is that flock that follows such a shepherd , who hath rescued them out of the devil's hands , and put them into god's . . lastly the performance of all these duties supposes a constant residence among your people ; without which it is impossible to discharge them in such a manner , as to give them and your selves full satisfaction . this , i am sensible , is a very nice and tender point ; and the difficulties of it do arise from these things : on one side it is said , . that there is an allowance by the law given to several persons to hold more benefices than one ; and since the distribution of benefices is not by the law of god , but by the law of the land , what fault is there in making use of the privileges which the law gives ? but there cannot be constant residence in more places than one . . that the general service of the church is more to be preferred than taking care of a particular parish ; because the necessary duties of a parish may be supplied by persons approved by the bishop , and a single living seldom affords a sufficient competency for persons to be capable of publick service . . that the way of subsistence for the clergy , is now much altered from what it was when celibacy was enjoyned . for a competency was always supposed where residence was strictly required ; and what was a competency to a single person , is not so to a family . . that the church hath a power of relaxing the severity of ancient canons from the different circumstances of things ; and when the general good of the church may be more promoted therein ; as in the removal of clergymen from one diocess to another , and the translation of bishops . . that the case is now very different , as to dispensations , from what it was in the church of rome , as to the number of benefices , and the manner of obtaining them ; that a great restraint is laid by our laws upon pluralities , and our own metropolitan is the judge when they are fit to be granted . but on the other side it is objected , . that in the first constitution of parochial churches , every incumbent was bound to a strict residence ; so in the canons of egbert , can. . presbyters are said to be settled in those churches , which had a house and glebe belonging to them ; and many canons were then expresly made , that no person should have more than one church ; and it is said in the capitulars , that this had been several times decreed . and so it is in herardus his collection of canons , can. . in isaac lingonensis , tit. . c. . in chrodegangus , c. . in ivo carnotensis , part . . c. . in regino , l. . c. . the like we find in the spanish churches , concil . tolet. . c. . and thence in the canon●law , c. . q. . c. . and in the greek churches , concil . . can. . c. . q. . c. . and as soon as the abuse crept in in these western churches , it was complained of , and endeavoured to be redressed , concil . paris . . c. . concil . aquisgran . . part . . c. . concil . metens . c. . that afterwards , not meerly the mendicant friars complained of them , as some have suggested , but some of the greatest bishops have been zealous against them , as gulielmus parisiensis , peraldus , archbishop of lions , iacobus de vitriaco bishop of acon , robert de c●orton cardinal ; guiard bishop of cambray ; and gregory ix . declared , that he could only dispense with the penalty of the law. after a solemn disputation at paris , it was determined against pluralities , if one benefice be sufficient ; and all the divines joyned with the bishop therein , except two ; so that it seemed to be the current opinion of the learned and pious men of that time. aquinas saith , it is a doubtful point , but cajetan is positive against them . so that all the zeal against pluralities , is not to be imputed to the piques of the friars against the secular clergy ; although there is no question but they were so much the more earnest in it ; but in the council of trent the bishops of spain were the most zealous , as to the point of residence , and the friars against it , as appears by catharinus and others . . setting aside all authorities , the argument in point of conscience , seems the strongest against non-residence ; because persons have voluntarily undertaken the cure of souls within such limits ; and although the bounds be fixed by human authority , yet since he hath undertaken such a charge personally , knowing those bounds , it lies upon his conscience to discharge the duties incumbent upon him , which cannot be done without constant residence , as the magistrates are bound in conscience to do their duty , although the bounds are settled by human laws : and so in the case of property , human laws bind so that it is a sin to invade what is settled by them . and if it be left to a man's conscience , whether a man answers his obligation more by personal attendance , or by a curate ; whether the honour of religion , and the good of souls be more promoted , and the peace of his own mind secured by one or the other , it is no hard matter to judge on which side it must go . it is impossible to defend all the arguments used in the old canons against pluralities , as that polygamy is unlawful under the gospel : so that , as a bishop hath but one city , and a man but one wife , so a presbyter ought to have but one church : that no man can serve two masters , &c. but all their reasons were not of this sort . for , the council of toledo speaks home , that one man cannot perform his duty to more than one charge . to the same purpose the sixth council at paris ; and withal , that it brings a scandal on the christian church , and an hinderance to publick worship , and the good of souls , and savours too much of a worldly mind ; which are weighty arguments . the only considerable thing on the other side , is , that the bishops are to take care that the places be duly supplied ; but whether it be done by parson , vicar or curate , is not material . but this will not hold . for , ( . ) the care of souls is committed personally to him that doth undertake it . and a regard is had to the qualifications of the person for such a trust , by the patron that presents , and the bishop who admits and institutes the person so qualified . ( . ) the old canons were very strict as to personal residence , so as to fix them in their cures from which they could not go away when they pleased , which they called promissionem stabilitatis . our saxon canons are clear , as to the personal cure , can. egbert . . , . populo sibi commisso ; and no presbyter could leave his cure and go to another only for honour or profit , can. . and none could go from one bishop to another , without his diocesan's leave , concil . herudford . c. . egbert . de eccles. instit. p. , . and when the bishop gives institution , he commits the care of souls to the incumbent , and not meerly the care that divine offices be there performed . but yet it is well observed by aquinas , that if the having more benefices than one were a thing evil in it self , it could in no case be dispensed with ; but there are some actions which in general are irregular , yet in some cases may be justified ; especially , if they be extraordinary , as to publick service and usefulness , &c. and to the same purpose cajetan speaks ; but he saith , the cases that make it lawful , must relate to a publick , and not a private good ; but he mentions these things which excuse from residence ; . lawful impediments , as to health , &c. . publick service . and others say , a geometrical proportion ought to be observed in the distribution of ecclesiastical benefices , and not an arithmetical , i. e. a regard ought to be had to the merits and capacities of persons ; as a commander hath more pay than many common souldiers ; but this reaches only to the value , and not to the number of benefices . but the question still remains , whether a legal dispensation take not off the obligation in point of conscience , since it is allowed by law , and the curate appointed by the bishop , who committed the cure of souls to him ? in answer to this , we must consider , . that the law proposes in dispensations very allowable ends , as publick service , incouragement of learning , reward of merit ; and therefore doctors by favour have not the privilege which others have ; and in case of incompetency , as it was then judged , no legal dispensation was needful . . some ancient canons took care of the supply of the place by competent persons , and in that case abated the rigour of the canon . for sirmondus saith in the canon of the council of nantz , against pluralities , this clause was added , unless he hath presbyters under him to supply the duties of his place : and the same clause is in regino , l. . c. . and regino puts it among the articles of enquiry , as to the clergy , if any had more churches than one without presbyters to assist him . and in their old admonition to them at visitations it is to the same purpose , but in others it is left out . thomassin is of opinion , that the former enquiry related to those who had chapels , and not to more churches ; because then there were none that had titles upon anothers benefice ; but these words are express as to more churches . it 's true , there were no such titles then ; for a title in the old canon law , was the relation which a clergyman stood in to the bishop of his diocess , being one of his clergy ; and so the greek canonists understand a man 's not being ordained without a title , and not having two churches ; i. e. not to have relation to two diocesses , and so sine titulo , is without being owned by some bishop ; and this was that which they thought ought to be strictly observed ; and to which purpose many canons were made , both ancient and later ; and if any deserted their bishop , they were liable to deprivation . afterwards the word , title , came to be applied to parochial churches ; but there were some who found out , that the ancient canons had another sense . thence in the council of placentia in the canon sanctorum dist. . c. . it was decreed , that one might have two churches in the same diocess , but not two preferments in several cathedrals . and in the council of clermont , a. d. . the reason is given , because according to the canons no man could have-two titles ; and every one was bound to hold to the title to which he was first ordained . but after all , the council of nantz shews plainly , that more parochial titles were then allowed , if well provided for , by such persons as the bishop of the diocess approved . now this very much alters the state of the case ; for then the obligation is real , and not personal . . it was agreed by the ancient canons , that where there was an incompetency of maintenance , they allowed an union for support ; now that is but the bishop's act in joyning what had been divided , supposing a sufficient subsistence : and a reasonable distance with the bishop's allowance , hath the same equity ; i.e. the bishop's act may unite two small benefices for a support , not by a perpetual union , but so long as he sees cause , which our law doth still allow , under such a value . but it is rather a dispensation than an union ; for the rights continue distinct . in the court of rome there were prerogative unions ad vitam , which were very scandalous , and are owned by the best canonists to be destructive of all order , and invented to defeat the canons against pluralities . but the unions which the law allows , are only those where two distinct benefices are made one for a competent subsistence ; and then if the union be reasonable , the dispensation within due distance is so too . balsamon saith , in the greek church pluralities are not forbidden , if they be near , and under the same bishop ; but they did not allow the same man to be under two bishops . in the capitulars that clause is added , that no man shall have more livings than one , si facultas suppetit , if it affords a reasonable subsistence . and therefore in case of incompetency of maintenance , of a good provision for curates , and of publick service , the severity of the ancient canons is with reason abated , and a person is supposed to undertake the cure , with those measures which the law and canons allow . but every man who regards the doing his duty out of conscience , will consider how much lies upon himself ; and that the original intention of the church and laws , was , that no man should undertake more than he was willing and ready to discharge , as far as one man's abilities could go . for , in great cities , one great parish requires more than several churches in the countrey ; and in such cases an equitable construction must be put upon such canons , which require personal performance of these duties . of the maintenance of the parochial clergy , by law . the subject i intend now to consider , is the incouragement which the parochial clergy have by law for the doing their duties : which are the manse , the oblations , and the tithes . i. the manse , or house and glebe . in the canons of egbert it is said , can. . that an entire manse ought to belong to every church , without any other than ecclesiastical service . by a manse , mr. selden saith , in the old charters the same is meant as a casat or hyde of land. bignonius and sirmondus say , so much glebe as was an imployment for an husbandman and two servants . spelman saith , it takes in the house too . lyndwood saith , as much land as would imploy a yoke of oxen ; and so the gloss on the canon law. but in another place the gloss saith , the manse is the original endowment of the church , without which it cannot be supplied : and without which it could not be consecrated . for the endowment was first to be produced before the building , collatâ primitùs donatione solemni , are the words of the canon law. and the same appears by concil . valent. . c. . concil . bracar . . c. . vit. udalrici c. . regino l. . c. , . which is there explained to be a substantial sustenance for those who were to attend the service of that church . and in the acts of consecration of a parochial church in baluzius , the bishop in the first place declares himself satisfied with the endowment , unde dignè domus dei sustentaretur . and upon this the original right of patronage was founded , not upon the soil , which gave no title , where there was not a church built and endowed with a competent subsistence . so that all advowsons or rights of presentation in private patrons , were at first appendant to manors , and not in gross ; because the right came from the endowment out of the manor : and the name of patron in the sense of the feudal law , is the same with lord of the fee , and so beneficium is a feudal term ; and till the feudal law prevailed , the name of patrom is rarely used in this sense . and when it came to be used , the patrons in france would have brought those who had their benefices to a kind of feudal service , and to have received investiture from them . this mr. selden drives at , as though the patrons had the right of investiture belonging to them , because some such practice is often complained of in the french canons , and as often condemned , not meerly by ecclesiastical canons , but by as good laws as any were then made . it cannot be denied that bad practices are the occasion of making good laws ; but doth it follow that those practices which were against law , were the law of that time ? yet this is mr. selden's way of arguing ; he grants , that there were laws made , but they were little obeyed . must we therefore conclude those illegal practices to have been the standing law , and the laws themselves to be illegal ? there were two things aimed at by those patrons . . to keep the clergy in a sole dependance on themselves , witout regard to the bishop's authority . . to make such bargains with them as they thought fit . both these were thought necessary to be redressed by laws , since the canons were slighted by them . and if the practice be good against law in one case , why not in the other also ? why is not simony justified , as well as the patron 's absolute power over the incumbents ? but the laws were severe against both . for in the time of lud. pius , a. d. . there was a solemn assembly of the estates of the empire , where several ecclesiastical laws were passed , and among the rest , these two : . that no presbyters should be put in , or put out of churches , without the authority and consent of the bishops ; and that the bishops should not refuse those who were presented , if they were probabilis vitae & doctrinae , i.e. such as the bishops could not object against either for life or learning . . that every church should have an entire manse belonging to it , free from any feudal service ; but if they had other estates of their own , for them they were to answer to the lords of the manor , as others did . and from hence this came into the collections of ivo , regino , burchardus , and gratian , and passed for a law generally received . as to the former , a new sanction was added to it in another assembly at worms , a. d. . c. . and repeated in the capitulars , l. . c. . addit . . c. . and the like as to the latter , l. . c. . capit. a. . c. . but it seems there were some still continued obstinate in their former practices , and therefore these laws were reinforced in another assembly , a. d. . in the time of carolus calvus , who mentions the laws of his father and grandfather to the same purpose , c. . and there takes notice of the contrivances made use of to defeat the intention of those laws ; and the bottom of all is there said to be abominable simony . which shews , what it was which these patrons aimed at , by claiming investiture without the bishop . and it was then judged necessary , that the bishop's consent was required to prevent this mischief . but still some patrons required feudal service for the glebe they had given to the church ; but the law commands them to restore it free from such service , capit l. . c. . addit . l. . c. , . and after much struggling , hinomarus , who lived at that time , saith , that these laws were observed . the patron 's right by virtue of the endowment , was not disputed ; but an arbitrary power , as to the incumbents , was utterly denied them ; and they were put under the bishop's care , who was to receive complaints against them , and to proceed according to the churches canons . but i am apt to think that all this stir in france did not arise from the pretence of original donation and endowment of churches , but from the infeodation of church lands and titles , by charles martel ( as an old ms. in filesacus saith ) and others in france , whose custom it was to give them in recompence to their souldiers , who then looked on them as their own , and were hardly brought to any reasonable allowance for the clergy which supplied them . these were called beneficia in the capitulars , and they were to pay nonae & decimae , i.e. a fifth part out of them , which was obtained with much difficulty , as appears by the many laws made about them . in the council at leptins , a.d. . carolomannus , son to charles martel , owns the letting out some of the church lands sub precario & censu , upon a reserved rent , can. . capit. l. . c. . but then it was barely for life . but the consequence was , that it was very hard to recover either the lands or the reserved rents , and they put in clergy-men , and put them out as they pleased , because they held these lands as beneficiary tenures from the crown . so that it was the work of more than an age to put the church there in any tolerable condition . but this seems to be very much mistaken , when it is brought to prove the right of patronage from the endowment , as to the disposal of benefices . but the right of patronage by the first building and endowing the church , is owned by the civil law in iustinian's novels , . c. . and two things were there required ; . a sufficient maintenance for the clergy who were nominated . . the bishop's satisfaction as to their fitness ; about which he speaks in another novel , . tit. . c. . and he elsewhere requires , that before any churches were built , the bishop should see that there were sufficient maintenance for those who were to officiate , novel , . tit. . the same right obtained here upon the same grounds , as appears by the barons answer to gregory ix . who affirm , that they had it ever since christianity was founded here . they mean , ever since parochial churches were endowed by their ancestors ; for there could be no such right of patronage before . and such patrons were here called advocati ecclesiae , as appears by ioh. sarisbur . ep. . . and the ius advocationis , as our lawyers tell us , is a right which a person hath to present to a vacant benefice in his own name ; which is agreeable to what bracton and fleta had said long before . but it doth not appear by them how the names of patron and advocate came to be so applied . among the romans , saith asconius pedianus , the patron was he that pleaded the cause of another ; the advocate , he that appeared in court on his behalf . but this doth not reach to the ius advocationis which we are now about . in the ninety seventh canon of the african code , an allowance is made for the churches to have advocates to solicite their causes at court. from hence the greater churches and monasteries had their proper advocates appointed them by the king , as bignonius observes ; and in the old charters of aub. miraeus , several such advocates are appointed ; and it appears to have been an honorary title , and great men were pleased with it . miraeus faith , it was accounted a considerable honour at that time . and so by degrees the founders of parochial churches came to have the title of patrons and advocates of them ; and the right they injoyed , the right of advowson as well as patronage ( not as some ridiculously talk of advocat se , or advocat alium ) because the trust and care of those churches , endowed by their ancestors , was fallen to them , and they were bound to look after , and to defend the rights of them ; and so lyndwood explains it . ii. the next thing to be considered , is the oblations of the people , which in those elder times were so free and large , that ( which may seem incredible now ) there were persons who would build churches on their own land to have a share in the oblations , as is affirmed in one of the spanish councils , and there forbidden with great severity . it was not , as the gloss on the canon law understands it , to make a bargain for the right of patronage , but it is expressed to have an equal share with the clergy in the oblations of the people . it is observed by agabardus , that the devotion of persons in the first ages was so great , that there was no need to make laws or canons for the supplies of churches , since they were so amply provided for by the liberality of the people . thence we read of the deposita pietatis in tertullian , which were voluntary oblations ; and out of which were made divisiones mensurnae in s. cyprian , and the sportulae , which were the allowances made to the clergy out of the common stock ; and they who received them , and not those who gave them ( as mr. selden fancies ) were called sportulantes fratres ; and the allowances were then stiled stipes & oblationes , which were so considerable , that st. cyprian blamed some for their setting their hearts too much upon them ; stipes , oblationes , lucra desiderant , quibus prius insatiabiles incubabant ; which could not be said of any meer necessary subsistence ; these they received tanquam decimas ex fructibus , as st. cyprian speaks , in lieu of tithes at that time , when the most of the christian church inhabited the cities , and gave out of their stock to maintain the church , and those who attended upon the service of it . but when christianity came to spread into the countries , then a more fixed and settled maintenance was required , but so as to retain somewhat of the ancient custom in voluntary oblations . no sooner was christianity settled in france , but we read of lands given to the church by clodovaeus after his conversion ; these are owned by the first council of orleans called in his time , a. d. . and were put into the bishop's hands , and to be distributed by him for repairs of churches , maintenance of the clergy , and other pious uses , can. . , . but besides these , we read still of oblations made by the people on the altar , both in the mother-church , and in parochial churches . if in the mother-church one moiety went to the bishop , the other to the clergy ; if in the other , only the third part to the bishop . in the second council of mascon , can. . we find it required , that all the people make an oblation of bread and wine at the altar ; and this was a. d. . but besides , the next canon insists on the payment of tithes , as founded on the law of god , and the ancient custom of the church , which is thereby reinforced ; unde statuimus & decernimus ut mos antiquus reparetur ; which words are not fairly left out by mr. selden , because they shew that there was only in this canon a renewing of an ancient custom , which had obtained , but was now growing into disuse . for this council of mascon was called on purpose to restore what they found too much declining , as to religion ; and they begin with the observation of the lord's day , and after , add this , wherein they complain of the neglect of that which their predecessors observed , as founded on the law of god. so that there can be no doubt of the custom of paying tithes in france , from the time of receiving christianity ; and that this custom declined as their religion did . in the council of nantz , about a. d. . oblations and tithes are mentioned together , c. . as making up the churches stock , which was to be divided into four parts , to the bishop , and to the clergy , and to repairs , and to the poor . but besides the oblations of the living , it was then common to make oblations at their death ; and these were called oblationes defunctorum , and severe canons were made against the detainers of them , concil . vas. i. c. . agath . c. , . q. , , , . and so much appears by those canons which forbid exactions at funerals , concil . tribur . c. . nannet . c. . where an exception is made as to voluntary gifts , either by the parties deceased , or by the executors . but here , in the saxon times there was a funeral duty to be paid , called pecunia sepulchralis & symbolum animae , and a saxon soul-shot ; this is required by the council at aenham , and inforced by the laws of canutus , c. . and was due to the church the party deceased belonged to , whether he were there buried or not . some take this for the foundation of mortuaries ; but then the money must be turned into goods . for in glanvil's time , a freeholder is allowed to make his will of other things , provided that he give his first best thing to his lord , and his second to the church . and this was not originally pro animâ defuncti , as lyndwood thinks , from the modern canonists de consecrat . c. . but it was a right of the church settled on the decease of a member of it , as appears by the law of canutus . others have said , that it was in lieu of tithes substracted , and oblations not duly made . so simon langham in his constitution about mortuaries , which was made to explain a former constitution of robert winchelsee , because the people were observed not to pay their tithes and oblations as they ought . but he did not go about to settle a right which had not been before , but to prevent suits about that which was to be taken for a mortuary ; and he declares , that where there was a choice of three or more , the second was to be for the mortuary , de sepult . f. . b. so that r. winchelsee supposes it to be an ancient right . indeed in the cotton ms. of the council of merton , where this constitution is extant , the reason is given , that it was required by way of compensation for the neglect of tithes and oblations . in the synod of winchester , in his time , a constitution is made for the uniform payment of mortuaries in that diocess , the second best of the goods or chattels was to be paid in lieu of tithes unpaid . in the synod of exeter of pet. quivil , e. . the reason is given for the neglect of all parochial duties ; but there it is said , that some pleaded custom against the payment of them , and others , as to the manner ; and although this council endeavoured to settle an uniform payment , yet the statute of circumspectè agatis , leaves the whole matter to custom , ubi mortuarium dari consuevit . from whence my lord coke inferrs , that there is no mortuary due by law , but only by custom . the true inference was , that the contrary custom had altered the law from what it was in the times of canutus and glanvil . but that the prevailing custom became the standing law , as to mortuaries , appears by the statute of h. . c. . which limits the payment where the custom continued , but allows liberty for free oblations : and this free oblation was then called cors presentè , and was distinct from the mortuary in lieu of tithes , as appears by the instances in sir w. dugdale . but i return to other oblations , which lyndwood distinguisheth into those by way of gift , and such as became due . for these latter , he insists on c. omnis christianus in the canon law , de consecr . d. . c. . which requires that every one who approaches the altar , make some oblation . where the gloss saith , it is but counsel at other times , but a command on the festivals . for this q. . c. . is produced , quas populus dare debet ; but it is there interpreted of the case of necessity : hostiensis thinks all are obliged on great festivals , and that the general custom lays an obligation ; but lyndwood thinks the custom of particular churches is to be observed . in the synod of exter before-mentioned , oblations are said to be of divine right , and that every parishioner is obliged to make them ; but the time is limited to christmas , easter , the saints-day of the church and the dedication , or all-saints . so that four times in the year they were required to make oblations after the age of fourteen . and so giles , bishop of sarum , debent offerre ex debito quater in anno . in the synod of winchester , none were so obliged till eighteen , and having goods of their own . but i observe , that in the ancient canons here , by the oblations , such things were then understood , as were for the support of the clergy : thence several canons were made against those who turned them another way . so in the council of london under archbishop stratford , oblations are declared to belong only to ecclesiastical persons . and so lyndwood saith , the goods of the church are called oblations . and in case the mother-church were appropriated , the oblations and obventions made in the chapel of ease , did not belong to the convent , but to the persons who officiated there . these were called by the name of the altarage , and were generally expressed under that name in the endowment of vicarages ; but when these were too small for the maintenance of the vicar , those small tithes which were joyned with them , were comprehended under that name ; and so it hath been resolved in the courts of law upon a solemn hearing . iohn de burgo , in his pupilla oculi , speaking of oblations , saith , that persons may be bound to them four ways : . by contract upon the foundation of the church , which amounts only to a pension upon endowment . . by promise either living or dying . . by necessity , when the parochial minister cannot be supported without it . . by custom , in the greater solemnities ; but he saith , the proportion and kind are left to discretion ; which made oblations sink so low , that the parochial clergy must have starved , if they had nothing else to support them . but besides these , he mentions occasional oblations upon particular services , as at marriages , christenings , funerals , &c. concerning which we have several constitutions against those who went about to hinder them , or to reduce them to a small quantity . the easter-offerings are none of these voluntary oblations , but a composition for personal tithes payable at that time ; of which i may have occasion to speak more afterwards . but in the saxon times here were other sorts of oblations ; as ( ) the cyrycsceat or first-fruits of corn payable at s. martin's day , ina ll. . . edmund . c. . and is often mentioned in doomsday-book , and in fleta l. . c. . malmsb. l. . c. . and the oblation of poultrey at christmas is mentioned in doomsday , under that title . ( . ) there was here another kind of oblation called plow-alms , which was a peny for every plow between easter and whitsontide . this is mentioned in the laws of king ethelred , and required to be paid fifteen days after easter , although it be called eleemosyna aratralis . in the endowment of the vicarage of s. ives , plow-alms is mentioned besides the altarage and obventions . but all these oblations made a very poor subsistence for the parochial clergy . iii. and therefore i come to the main legal support of the parochial clergy , which is in tithes . concerning which i shall proceed in this method ; i. to consider the foundation in law which they stand upon . ii. the rules of law which are to be observed about them . i. as to the foundation they stand upon in point of law. my lord coke not only saith , that the parochial right of tithes is established by divers acts of parliament ; but he mentions the saxon laws before the conquest for the payment of tithes of edward and gathrun , ethelstan , edmund , edgar , canutus , and king edward ' s , confirmed by william i. hobart saith , that tithes are things of common right , and do of right belong to the church . and since parishes were erected , they are due to the parson ( except in spiritual regular cases ) or vicar of the parish . in the register of writs , a book of great authority , there is a writ of consultation for tithes , wherein they are owned to be of common right , as well as immemorial custom , due to the rector within the limits of his parish . lord chief justice dyer saith , that tithes can never be extinguished , because they are of common right . the same is affirmed by justice dodderidge in the case of fosse and parker . in pieddle and napper's case , tithes are said to be an ecclesiastical inheritance collateral to the estate in land , and of their own nature due to an ecclesiastical person : and , that all lands of common right are to pay tithes . therefore it is said by hobart in slade's case , that no land can be discharged of tithes , although it may be discharged of the actual payment . in popham's reports we read , that it is a maxim in law , that all persons ought to pay tithes , and all lands shall be charged with them of common right . so that if the judgment of some of the greatest men of the profession may be taken , nothing can be more clear and evident than the legal right of tithes . but it falls out unhappily among us , that nothing hath been the occasion of so much difference and contention between the incumbents and their parishioners , than the point of the payment of tithes . so that some have wished them changed into some other way of maintenance ; but i cannot see any reason why so ancient , so legal , so just a maintenance should be changed into any other , which would less answer the end , and be liable to as many difficulties , if not far more ; but every change of this kind , where we cannot be secured of the event , is very dangerous , especially when it proceeds from want of judgment or ill-will to the profession ; both which are to be suspected in this case . if the ill humours of some people could be changed , it would signifie far more to the quiet of the clergy , than altering their legal maintenance . therefore the best way is to enquire into the reasons of this dissatisfaction , that we may find out the proper methods to remove it , and thereby to prevent the troublesom and vexatious suits about them , which make the parochial clergy so uneasie , and their labour often unsuccessful with the people . and there is a twofold dissatisfaction which lies at the bottom of most of these contentions about tithes . . in point of conscience . . in point of law. . in point of conscience . there is a sort of people among us , who are very obstinate in this matter , and will rather chuse to go to prison and lie there , than pay their tithes . i have often thought whence such a stiffness should arise in a matter of legal right . if they had opposed all determinations of property by law , they had been more consistent with themselves ; but to allow the law to determine the right as to nine parts , and not as to the tenth , is not to be reconciled . for if the question be concerning the other parts , to whom they do belong , may not men as well dispute the matter of dominion and property in them ? may they not say , that the seed is our own , and the labour and charges our own ; why then shall i answer to another for the profit which arises from my pains and expence ? if it be replied , that the law hath given the property of the land to one , and the use to another , why may they not pretend this to be an unreasonable law to separate one from the other , since land was given for the use ; and the original right of dominion was from what was necessary for use ; therefore the separating right and use , is an incroachment on the natural rights of mankind . and there seems to be more colour for this , than for any to allow the laws to determine the right of nine parts to belong to the lord of the soil , but the tenth by no means to go that way , which the law of the land hath long since determined it . so that the lord of the soil either by descent or purchase , can claim no right to it ; for neither did his ancestors enjoy it , nor those who sold the land to a purchaser consider it as his own , for then he would have had the value of it . the tenth part then is set aside in valuation of estates , as already disposed of ; and the question is , whether the same law which settled the right to the other , shall determine this likewise ? is it not a part of natural injustice to detain that which by law belongs to another ? and is not the law the measure of right in cases of difference between man and man ; why then should not the law fairly and equally determine this matter , to whom the tenth of the profits belongs ? but still they say , it is against their conscience , and they cannot do it . is it against their conscience to do acts of natural justice , not to detain that from another , which of right belongs to him ? but it is in vain to argue with people , who do not judge of things by the common light of reason and justice , but by an unaccountable light within them , which none can judge of but themselves ; and in matter of interest men are the worst judges in their own case . . therefore i come to those who are capable of being argued with ; such , i mean , who are unsatisfied in the point of law , not in general , but in particular cases , from whence suits arise , and those are often from these causes : . not duly considering the just measure and extent of the rules of law for the payment of tithes . . not attending to the exemptions , or discharges by law from the payment of tithes . the best way i know to prevent troublesome suits about tithes , is to enquire diligently into these two things : . the rules of law for the payment of tithes . one might have justly expected , that in a matter of common right and daily practice , and wherein the peace and quiet of the people is so much concerned , as well as of the clergy , the rules of law should have been plain , and clear , and liable to as few exceptions as possible ; but instead of this , there is not one general rule in this matter , but hath several exceptions ; and different opinions have been about them by the great men of the law , which hath given too much occasion to the multitudes of suits which have been in the matter of tithes ; so that the clergy are not so much to blame , if they are unavoidably involved in suits by the perplexity of the law , and the different resolutions which have been made about the cases reported by them . this i shall make appear by examining some of the most general rules of law , and comparing them with the resolutions which have been made in particular cases . . one of the most standing rules of the law , is , that tithes are only to be paid of things which do annually increase , ex annuatis renovantibus simul & semel . but is this rule allowed in all cases ? . from hence coke concludes , that no tithes are to be paid of minerals , or of what is of the substance of the earth ; and so stone , turff , tinn , lead , coals , chalk , pots of earth , are denied to be titheable . but i find , h. . n. . a petition of the commons was denied about being sued in the ecclesiastical courts for tithes of stone and slat taken out of their quarries . the petition was renewed , h. . and then the king's answer was , that the former custom should continue . and so about tithes for sea-coals , e. . n. . from whence it appears , that these things might be tithed by ancient custom , and that was not thought fit to be altered . but , eliz. it was resolved in the kings-bench , that no tithes are due of quarries of slat or stone , in the case of lysle and wats . here was no regard to custom , and a reason is given , which deserves to be considered , viz. that he may have tithes of the grass or corn which groweth upon the surface of the land where the quarry is . but how if there be none ? as lands where quarries are , seldom afford tithes . but the note on the register saith , that if corn do grow there , tithe of it would be due however . so that here we have a rule against an ancient custom and rule too . but it cannot be denied , that fitz-herbert and brook say , that there is no tithe of quarries , or coals , or such things ; and it was so adjudged , iac. and iac. and in other cases since . and yet after all , rolls yields , that a custom in these cases is to be allowed ; so that the general rule is to be understood so , as there be no custom to the contrary . and as to minerals , it is determined by a late writer , that by custom tithes may be due of them , although they do not annually increase . and my lord coke mentions king iohn's grant to the bishop of exeter of the tithe of his tinn-farm . and a good author assures us , that in places of lead-mines , the tithe of lead is the chief part of the ministers maintenance . therefore my lord coke concludes his discourse of tithes with this general rule , that by custom a parson may have tithes of such things as are not titheable of common right . . from hence it is concluded , that no tithe can be due for houses , because they have no annual increase . this was solemnly debated in dr. grant's case , iac. and that there was no tithe due , was proved by the counsel from the register , fitz. h. n. b. brook , &c. but it was resolved by the court , that although houses of themselves were not titheable , yet there might be a modus decimandi on the ground on which the houses stood , and the houses did not take away the right before ; and in most ancient cities and burroughs there was such a modus for the maintenance of their minister . i grant that there was a certain modus decimandi upon houses , but not upon the account of the ground they stood upon ; but there was a customary duty upon houses in lieu of tithes , and were accounted a sort of praedial tithes , although they were called oblationes de domibus , as lyndwood saith , and were distinct from personal tithes , for the iews were bound to pay tithes of houses , but not personal . such was the rate on houses in london : but in dr. layfield's case it was denied , that there could be a prescription of tithes upon houses , because they are to be paid only for the increase of things . what is now become of the former modus decimandi , when a prescription was here insisted upon and denied ? so that here were different opinions , a special custom was allowed upon good reason ; and here a prescription disallowed upon such a reason as would have overthrown the former custom , and yet the law was the same still . . from hence it would follow , that if this rule hold , things which have not an annual increase would not be titheable : then no tithe of saffron would be due , whose heads are gathered but once in three years , nor of sylva caedua , under twenty years ; and yet this was allowed in parliament at sarum , saith the register , notwithstanding it was not renewed every year . and rolls saith , that tithes shall be paid of beeches , hazle , willows , holly , alder , maple , even after twenty years , because they are not timber . but what if willows be used for timber ? then hobart saith , they ought to be excepted . if young trees grow in a nursery , and be sold , it is allowed that tithes shall be paid of them , and these are not renewed every year . and what becomes now of this general rule , when so many exceptions are made to it ? . if this rule hold , there can be no tithes of after-pasture , for the rule is simul & semel . and my lord coke saith , it was adjudged , iac. that a parson shall not have two tithes of land in one year ; and he instances in the hay and after-pasture , &c. and yet rolls affirms , that it is due by law , unless there be a prescription to the contrary ; and he saith , the iudgment was given upon the prescription . and therefore he resolves it into a modus decimandi . but he mentions several judgments , that no tithe is due for after-pasture , where tithe-hay hath been paid before ; which must be where there was no custom to the contrary , or else he must contradict himself . and so yelverton saith in the case of green and austen , that of common right , tithe-hay discharges the tithe of the after-pasture . but crook saith , that in that case the court went upon the prescription , and allowed it to be good . how could it go upon both ? and sir s. degge is positive , that if a meadow affords two crops , the parson shall have tithe of both . how can these things consist ? or what authority may we rely upon in such difference of opinions ? . another rule in law is , that things which are ferae naturae , are not tithable . but here we are to seek what things are ferae naturae ? whether such things as may be tamed and kept under custody , and become a man's property , are ferae naturae ? is it not felony to steal rabbets or pigeons ? if it be , they must be some man's property ; and if they be a man's proper goods , how can they be said to be ferae naturae ? for the meaning was , that no man was to pay tithes for that which was not his own . are not bees ferae naturae , as much as pigeons and rabbets ? but the tithe of bees is allowed to be paid by the tenth of the honey and wax . but rolls saith , that it was doubted whether a tenth swarm were a good modus for the tithe of bees , because they are ferae naturae . the reason is , because they are left wild , and under no custody ; but if they went into several hives belonging to the proprietor , they might be tithable by the hives . and so for pigeons under custody in a dove-house , they are a man's property , and therefore tithable : as it hath been several times resolved in courts of law , iac. in whately and fanbor's case , in iones and gastrill's case , a prohibition was denied ; and justice dodderidge declared , to whom the court assented , that tithe was due both of young pigeons and conies . but the prevailing opinion hath been , that if they are consumed in the house , they are not tithable , but if sold , they are . but are they not ferae naturae as well when they are sold at market , as when they are eaten at home ? why then are they tithable in one case , and not in the other ? if they are tithable at all , they are so where-ever they are spent ; for in tithing , the nature of the thing is to be considered , and not the place of spending it . for upon the same reason there would be no tithe of corn spent at home , or pigs , calves , &c. and therefore i look on the reason as of worse consequence , than the total denying the payment . for who can tell how far this reason may be carried in other cases ? but it is resolved in many cases , that though they are ferae naturae , yet by custom they may be tithed ; and so for fish. custom it seems hath the power of reducing things ferae naturae to the same condition with other things . but as far as i can find , these things by our old constitutions , were as tithable as other things ; but the notion of their being ferae naturae being started , served as a plea against them , where the custom was not continued ; and where it was beyond all dispute , then they said , they were not tithable in themselves , but only by custom ; or not by law , but by custom ; and yet such customs make a part of our law. in several ancient appropriations , fish , and pigeons , and rabbets are expresly mentioned , as given together with other tithes ; so that in those times both law and custom went together . for the lords of manors were not wont to give tithes which were not otherwise due . . but what is to be done with those lands which might afford tithe , if the increase of grass were suffered but the owners feed cattel upon it , and so there can be no tithes , what remedy doth the law afford in this case ? . it is agreed that no tithe is due , if no other cattel be fed , but such as the owner pays tithe for , or are imployed in plowing , or any other way which is for the benefit of the incumbent of that parish where they are fed . for otherwise they are but as barren cattel to him . . that there is a certain rate due for the agistment of barren cattel , iure communi , and so delivered by hales then chief baron , according to the value of the land , unless custom hath determined otherwise . and so for guest-horses , &c. unless the inn-keeper had paid tithe-hay , say some , or the custom be otherwise : but none for saddle-horses for the use of the owner . one of the judges dissenting , because not intended for husbandry . but for unprofitable cattel the tenth part of the bargain is due , or according to the value of the land , and the owner of the cattel is compellable to pay . . if profitable and unprofitable be mixed , so as the latter be the greater number , then herbage must be paid for them , and tithe in kind for the profitable ; but if the profitable be the greater number , it is questioned whether the other are not excused ; but no law or precedent is produced for it : and there seems to be no reason , if pasturage be due for unprofitable cattel , why they should be excused because there are more profitable , unless their number be inconsiderable . these things i have only briefly touched at , that you may the better govern your selves in disputes of this nature ; and as you are not to lose the just rights of the church , so neither is it for your interest or honour to be engaged in them , where the law will not bear you out . ii. the next thing necessary to be considered , is , the legal discharges from the payment of tithes . for , although the reason of the payment of them be founded on the law of god , and the settlement of tithes among us hath been by ancient and unquestionable laws of the land , yet the recovery of tithes when unjustly detained , can be no otherwise than by the law of the land , as it is now in force . and if these do allow several discharges and exemptions not to be found in the ancient laws or practice , we shall but involve our selves in fruitless-contentions , if we dispute those limitations which the law hath put upon the payment of tithes . and therefore our business is to enquire and satisfie our selves , as well as we can , about the nature and extent of these limitations . now there are four sorts of discharges of the payment of tithes allowed . . by appropriations to monasteries . . by privileges of particular orders . . by prescription and real compositions . . by unity and possession . of these i shall discourse in order , so as to clear the greatest difficulties , with respect to them . . as to appropriations . by the statute of dissolution , h. . . the new possessors are to enjoy their parsonages appropriated , tithes , pensions , and portions , and all other lands belonging to them , discharged and acquitted of the payment of tithes , as freely , and in as ample a manner as they were enjoyed before . h. . . it is enacted , that no persons shall be compelled , or otherwise sued to yield , give or pay any manner of tithes for any mannors , lands , tenements , or other hereditaments , which by laws or statutes of this realm are discharged , or not chargeable with the payment of any such tithes . so that we must enquire into the state of parsonages appropriated before the dissolution , and how the payment of tithes stood then . i will not deny that there were churches appropriated to monasteries in the saxon times ; but if mr. selden's doctrine hold good , as to the arbitrary consecration of tithes till the twelfth century , those churches cannot carry the tithes along with them , but only such glebe and oblations as belonged to them . for how could the tithes pass with the churches , if they were not then annexed to them ? but he confesses , that the mention of tithes with churches in appropriations , was rare , or not at all till after the normans . the reason might be , that the separation of tithes from the churches , was not known till the norman times . for the norman nobility took little notice of the saxon laws about tithes ; but finding tithes paid out of the lands within their manors , they thought they did well , if they gave the whole tithes , or a portion and share of them , as they thought fit , to some monastery either abroad or at home . and this i take to be the true account of the beginning of appropriations among us . it were endless to give an account of the appropriations made by the normans , for the monasticon is full of them . william i. gave several churches with their tithes to battle-abbey . william rufus added more . h. . to the monastery of reading , several churches in like-manner ; and h. . more . hugh earl of chester , gave the tithes of several manors to the monastery of st. werburg , in the time of william i. of which kind the instances are too many to be mentioned ; instead thereof , i shall set down the state of the parochial clergy under these appropriations , which was very mean , and intended so to be , being supplied by the english clergy . . where the churches and tithes were appropriated to a monastery , the vicar had only such a competency as the bishop thought fit to allow , till vicarages came to be endowed : for right understanding this matter of appropriations , as it stood here in england , these things are to be considered . . that there was a parochial right of tithes settled in the saxon times : which i infer from the laws of edgar and canutus , where the tithes are required to be paid to the mother-church ; and if the lord of a manor have a church on his own free-land , he may retain a third part of the tithes for the use of it . these laws are so plain and clear , that mr. selden does not deny them ; and he confesses , the first limitation of profits to be contained in them . but what is to be understood by the mother-church to which the tithes were given ? mr. selden would have it the monastery or mother-church ; but afterwards he grants , that a parochial right to incumbents was hereby settled ; which is the first legal settlement of tithes in a parochial manner : but these laws of edgar and canutus were so solemnly enacted , that , as mr. selden observes , they were particularly called , leges anglicae , the old english laws in the old latin mss. it is a commonly received opinion among the lawyers of the best rank , that before the lateran council there was no parochial settlement of tithes here . my lord coke found no such decree of the lateran council under alexander . h. . a. d. . and therefore he refers it to a decretal of innocent . as to the lateran council which lyndwood mentions , it plainly speaks of feudal tithes , which a person enjoyed by the churches grant , and such might before that council , be given to what church the person pleased . but is there no difference between feudal and parochial tithes ? and what proof is there of any ancient infeodations of tithes here ? mr. selden himself thinks lyndwood applies the custom of other countries to his own . but as to the parochial right of tithes among us , it stands thus : by the saxon laws the parochial was settled . after the norman invasion these laws were neglected and slighted by the normans ; h. i. by his charter restored them , h. . c. . and the very words of the laws of edgar and canutus are repeated . the normans went on notwithstanding , and so these laws were discontinued in practice . but hadrian . who was an englishman by birth , observing the disorderly payments of tithes here , published a constitution to require the parochial payment of them , as is observed by p. pithaeus , a very learned and impartial man. after him alexander . in a decretal directed to the archbishop of canterbury and his suffragans , complains , that whereas the parishioners had formerly paid their tithes entirely where they ought to pay them , the contrary custom had obtained ; and some withdrew the tithe of wooll , fish , and mills ; therefore he requires the strict payment of them to the churches to which they were due . the latter part only is in the canon law , but the former is added from the ancient copies by pithaeus . as to the decretal of innocent iii. to which my lord coke refers , and mr. selden thinks was mistaken for the lateran council , being brought into england with it ; there is such an epistle extant in the collection of his epistles , but not put into the canon law , and was nothing but an inforcement of the former laws , and a declaring the contrary custom void , which had too much obtained since the norman times . but in a decretal extant in the canon law , de decim . c. . he acknowledges the parochial payment of tithes to be due by common right , cum perceptio decimarum ad paroeciales ecclesias de iure communi pertineat . can any thing be plainer than that the parochial right could not depend upon his decretal epistle , when himself confesses that they were due by common right ? we do not deny that he inforced the payment which had been so grosly neglected in the norman times , and the most they would be brought to in many places , was to pay only a third part to the parish-priest who officiated , and gave the rest to monasteries , and often appropriated the whole tithes to them , either at home or abroad , as will abundantly appear by the monasticon ; from whence it is plain , that they looked on tithes in general , as due to the church , as appears by very many of their ancient charters ; but they thought they did very well when they appropriated them to monasteries of their own erection , or others , as they thought fit . but this humour took so much among the norman nobility , and served so many purposes of honour and devotion , as they thought ( besides reason of state ) that the parochial clergy were reduced to so poor a condition , that alexander iv. complained of it as the bane of religion , and destruction of the church , and as a poison which had spread over the whole nation . and it must be very scandalous indeed , when the pope complained of it : for the monks that were able , generally got their appropriations confirmed in the court of rome . . there was a competency to be settled on the parochial clergy by the bishops consent , which was required in order to the confirming an appropriation ; as may be seen in multitudes of them in the monasticon , besides those which are preserved in the churches registers . sometimes the endowment is expressed , and at other times it is reserved in the bishop's power to do it as he sees cause . but the bishops were either so remiss in those times , or the monks so powerful at rome , that the poor vicars fared so hardly , that in the time of h. . alexander iii. sent a reprimand to the bishops for favouring the monks too much , and the clergy too little ; and therefore requires the bishops to take care that the vicar had a competent subsistence , so as to be able to bear the burden of his place , and to keep hospitality . this was directed to the bishop of worcester ; for it seems so long since the poor vicars here were hardly provided for . and yet i have seen several forms of appropriations made by the bishops here , after the conquest , wherein there is a twofold salvo ; one for the bishop's right , and another for a sufficient maintenance for the curate , although the church were appropriated ad communem usum monachorum , as of wolstan , roger , and of william in the time of hen. ii. when alexander iii. lived , and of walter de grey , sylvester , &c. but it seems where a competent subsistence had been decreed , the monks took the first opportunity to lessen it ; which occasioned another decretal in the canon law , wherein any such thing is forbidden , without the bishop's consent . in other places they pleaded custom for it ; thence came another decree of the lateran council , to void all such customs by whomsoever introduced , where there was not a competent subsistence for him that served the cure. the monks were still refractary in this matter ; and because the bishops had power to refuse any person presented by the monks , unless they did consent to such a reasonable allowance as the bishop thought fit ; therefore they grew sullen , and would not present ; in which case another decretal was made to give the bishop power to present . and after all , clement v. de iure patron . c. . reinforced the former decretals , and injoyned the diocesans in the strictest manner , not to admit any person presented to a cure , where the church was appropriated , unless sufficient allowance were made by the bishop's consent and approbation , and all custom and privileges to the contrary are declared to be void . but how far doth this hold among us now , since the appropriations are become lay-fees , and the bishop's power is not mentioned in the statute of dissolution ? to this i shall give a clear answer , but i doubt not satisfactory , to all parties concerned . for as necessity and power , so some mens interest and reason live very near one another . . the statute of dissolution leaves all matters of right as to persons interested just as they were before . for by the surrender the king was to have the monasteries and tithes in as large and ample a manner as the abbots then had them in right of their houses , and in the same state and condition as they then were , or of right ought to have been : and so res transit cum suo onere . but this is not all : for there is an express salvo for all rights , claims , interests , &c. of all persons and bodies politick . so that if by the law of england there was such an antecedent right in the vicar to his allowance , and in the bishop to assign it , it is not taken away by this statute , nor any other . . by the law of england the bishop had a right to provide a competent maintenance for supplying the cure upon an appropriation . we are told by an unquestionable authority in point of law , that car. . this point was brought before the kings bench , in the case of thornburgh and hitchcot . the vicar complained , that the church was appropriated , and that he wanted a competent maintenance ; a prohibition was prayed , but denied upon this reason , that the vicar had reason for his suit , and that the ordinary might compel the impropriator to make it greater ; because in all appropriations that power was reserved to the ordinary . and so in the year-books it is allowed , that the ordinary may increase or diminish the vicar's portion , e. . cas. . f. . by our provincial constitutions , the bishop is to take care that the vicar have a competent allowance ; which at that time was set at five marks ; but lyndwood observes , that as the price of things rose , so the allowance was increased , and in stipendiaries it was then advanced to eight or ten marks ; which , according to sir h. spelman's computation , comes to above sixty pounds per annum . but some have told us , that by some old statutes , even beneficed persons were not by law to have above six marks per annum ; for this was the sum allowed to parish priests ; which is so gross a mistake in any that pretend to law or antiquity , that it is to be wondred how they could fall into it . the truth of the case was this ; the parochial chaplains or priests were complained of , e. . n. . that they could not be gotten to attend after the plague , but at excessive rates ; upon this a provincial constitution was made , extant in the parliament rolls , wherein they are obliged to demand no more than six marks . but who were these parish-priests ? not such as had the legal endowments , but those who depended on the good-will of the parson or people , and were hired to officiate in chapels of ease , or to perform offices for the dead , which were so frequent at that time . and these were called annual chaplains , or masse chaplains , and were distinguished from domestick chaplains who officiated in great mens houses in their private oratories , and from beneficed persons , as appears by many constitutions . but whatever was understood by the act of parliament then , it was repealed iac. . . . the law of england , as to a competent subsistence for the vicars or curates in appropriated churches , is founded on very good reason . for the tithes were originally given for the service of the church , and not for the use of monasteries . and this was a hard point for the monks to get over , since the tithes were given for the maintenance of the clergy , and they were none of the clergy , how they came to have a right to the tithes . it is certain , that the state of the clergy and the monastick state were different ; and the offices of the clergy and of the monks were inconsistent , if they held to their rules ; how then came the monks to take the maintenance which belonged to the clergy for other offices , as though they were originally intended for them ? for which there is no colour or pretence . this point was debated between two great men of their times , s. bernard and petrus cluniacensis : the former a cistertian monk , declared himself unsatisfied with the monks taking the maintenance of the parochial clergy from them , which was given on purpose to attend the cure of souls . but , said petrus cluniacensis , do we not pray for their souls ? but the cure of souls is another thing ; and by the canons of the church the monks were forbidden to meddle in parochial offices of preaching , baptizing , visiting the sick. so that it might bear a question in law , whether a monastery were capable of an appropriation , since by the ecclesiastical law , they are not an ecclesiastical body ? and for that reason hobart saith , a nunnery is not ; and the same reason will hold for the other . the cistertian order was at first very scrupulous in this matter , when they came hither , and pretended to live only on their own lands , and disliked appropriations , as great injuries to the clergy , and called it sacrilege to take their tithes away from them . this was wisely done of them at first to ingratiate themselves with the clergy , and to get as good lands as they could . but after a while they abated their zeal , and then they pretended to do nothing without the bishops consent ; till at last they were as ready as any , and got as large privileges to exempt their lands from payment of tithes , under which the clergy suffer to this day . but to return to the beginning of appropriations among us . after the normans coming , they stood upon no niceties of law , or original grants , but they took possessions of the tithes of their manors , and disposed them as they pleased . the poor parochial clergy were english , whom they hated , and cared not how poor they were ; the bishops were normans , as fast as they could make them ; and the business of the great men , was to incourage the norman monks that came over , and to build and endow monasteries for them to pray for their souls , which they minded so little themselves ; and this i take to be the true account of the beginning and increase of appropriations in england , which at first were only permitted , but are confirmed by the law since the statute of dissolution . ii. in some appropriations there were vicarages endowed , and here the difficulty lies in distinguishing the tithes which belong to one from the other . before the statutes for endowment of vicarages , in case of appropriations , r. . . h. . . there were endowments made , where the bishops took care of it ; but they were generally so remiss in it , that those statutes were thought very necessary ; and one , it● seems , was not sufficient . for they eluded the former by appointing vicars out of their own body ; but the latter statute requires , that the vicar shall be a secular person , and made spiritual vicar , and have such an endowment as the ordinary should think fit , otherwise the appropriation to be void . the scandal of the appropriations was made so great by the greediness of the monks , and easiness of the bishops , that i find in the parliament rolls h. . . a petition of the commons , that no appropriations should be made for the future ; but afterwards they came to that temper which is expressed in the statute h. . and that before those statutes , there was no necessity of the endowment of a vicarage , is plain from the occasion of making them ; and so it hath been agreed in the courts of law in the case of britton and ward . but the main difficulty is , to state the tithes which belonged to the vicarage and to the appropriation ; because there was no certain limitation either as to quantity or kind , although generally the great tithes of corn and hay went with the parsonage , and the small tithes and obventions , and altarage with the vicarage . the best rules i can find to be satisfied in this matter , are the endowment , or prescription . and where the endowment is found , yet there may be a prescription for tithes not mentioned ; because the bishop had a power reserved to increase the allowance : as in the case of the vicar of gillingham , who sued for customary tithes not mentioned in the endowment ; and he recovered them on this presumption , that the vicarage might be augmented with those tithes ; and in case of long possession , it is there said to have been often so held and ruled . sometimes there is a difficulty in the sense of the words of the endowment , as in the case of barksdale and smith , whether decima garbarum in w. implied tithe-hay ; but it was resolved , that although garba seems to relate to corn , de omni annonâ decima garba deo reddenda est . l. edw. confess . c. . at least , to something bound up ; and so lyndwood applies it to faggots ; yet the custom was thought sufficient to extend it to tithe-hay ; and for tithe-wood in renoulds and green's case . but the greatest difficulty hath been about small tithes , which is the common endowment of vicarages . in the case of ward and britton , one point was , whether lambs were small tithes or not . noy pleaded custom for it . the councel on the other side said , that small tithes were such as grew in gardens ; but lambs were a sort of praedial tithes ; however , it was yielded , that custom might bring them under small tithes . another point about small tithes , was about saffron growing in a corn-field , in the case of bedingfield and freak , and it was resolved to be small tithes . but the ground of that resolution was questioned in the case of udal and tyndal ; some said it was , because saffron was small tithes where-ever it grew : others , that by the endowment , the parson had only reserved the tithe of corn and hay . but suppose whole fields be planted with woad , which grows in the nature of an herb , is this to be reckoned among small tithes ? crook seems to deliver the sense of the court so , in the former case ; but hutton reports it , that it might come to be majores decimae and praedial , if it came to be the main profits of the place . and the like may hold as to hemp , hops , wooll and lambs . it 's there said , that all these new things , as saffron , hemp , woad , tobacco , &c. are to be reckoned among small tithes , unless there be some material circumstance to the contrary . but who is to be judge of that ? and what proportion changes small tithes into greater ? but what if the endowment be so expressed , that only tithes of corn and hay be reserved to the parson ? then rolls thinks all the rest falls to the vicar by construction of law. by the word altarage , it was resolved in the exchequer , upon a solemn hearing , eliz. and after confirmed in the case of wood and greenwood , not meer oblations are to be understood , but whatever custom hath comprehended under it . and i find in the settlement of the altarage of cockerington by rob. grosthead , bishop of lincoln , not only oblations and obventions , but the tithes of wooll and lamb were comprehended under it . ii. the next discharge of tithes , is by the privileges of particular orders allowed by our law. for it is , to be observed , that no bulls of popes make a legal discharge ; but in such cases where the law allows them , and my lord coke thinks it cannot be insisted upon without danger of a praemunire . for when the cistertians had procured new bulls to inlarge their privileges , as to their lands in the hands of farmers , a law was passed against it , h. . c. . which was grounded on a petition in parliament shewing the novelty and mischief of it . it was affirmed by our great lawyers , that the pope's act in dissolving the body of the templars , which was done , e. . had no effect here till the e. . when the parliament gave their lands to the hospitallers . and that the pope could not by his bull dissolve a vicarage after they were made perpetual by the statute ; so that our own law is to govern in this matter . but what orders had exemption from tithes by our law ? at first most of the orders of monks had it for lands in their own hands . this by hadrian iv. was restrained to the cistertians , templars and hospitallers , which is owned in the canon law by a decretal of alexander iii. who declares it not to be intended for lands let out to farm . innocent iii. restrains it to such lands as they were then in possession of ; but my lord coke makes the grant to be from innocent iii. in the council of lateran , john ; but he adds , that it extends only to the lands which they had before ; which was all that was done then . but he saith , that this privilege was allowed by the general consent of the realm ; however that were , it is certain that the lateran council made no restriction to the three orders . but what shall we say to the praemonstratenses , of whom he saith , that they were discharged by a bull of innocent iii. this point was disputed in the case of dickenson and greenhow . it was not denied , that they had obtained such a bull , but it was denied that it was ever received here . on the other side , it was said , that their bulls were confirmed ; which doth not appear , nor that any judgment was given in the case . there is a bull extant in the collection of innocent's epistles , to exempt the praemonstratenses from the tithes of lands in their own hands ; but this was granted in the first year of innocent iii. sometime before the lateran council , and they might enjoy the same privileges with the cistertians , if it could be proved , that they were as generally received , which hath not yet been done . as to the cistertians themselves , there are considerable limitations of their privileges . . they must relate to lands in their possession before the lateran council , a. d. . of king iohn . and in matters against common right , the proof in reason ought to be on those who pretend to particular privilege . but it 's certain the cistertian order hath had many lands in england since that time ( and it were no hard matter to find them out . ) but , suppose they were actually discharged at the dissolution , and the proprietaries were to enjoy them in the state they found them , is not this a sufficient discharge ? yes , if it be a legal discharge ; for the statute only puts them into the same legal capacity they were in before ; but if they were lands given since the lateran council , they were not in a capacity to be discharged by law ; for it was not otherwise received . . this privilege doth not exclude ancient compositions , as to their demesn lands . for these privileges did not go down so easily , but where there were rectors able to contest it , they brought even the cistertians to compositions . and the pope himself appointed commissioners here to compound the matter : as between the monastery of pipewel and hugh patesbul rector of eltyndon , which ended in a composition of six marks per annum for the tithes of their demesns . and another between the vicar of dunchurch and the same monastery ; and between the rector of wynswick for the tithes of ten yard-lands in colds-abbey . all which i have perused in the register of that monastery ms. . the privilege doth not hold where the monasteries were under value , and came to the king by the statute h. . unless they were continued , and came within the statute of dissolution , h. . and it ought to be proved that they continued separate ; for if their lands were given to the greater monasteries , they did not retain the privilege upon dissolution . but there is a much harder point concerning the hospitallers ( who had the lands of the templers after e. . ) their lands were not given to the king by the statute of dissolution , h. . but h. . c. . and the clause of exemption was left out of the grant. upon which a great question hath risen , whether their lands are exempt or not ? and judgment was given against them in the case of cornwallis , or quarles and spurling . but in the case of whiston and weston , it was argued , that the king had the same privileges which the hospitallers had . but it was replied , that other lands given to the king after that act , had not those privileges , as chanteries , &c. it was said , that it was , because they were not regular ecclesiastical bodies : which was a strange answer , considering what sort of ecclesiastical bodies the hospitallers made , when only the grand master and two chaplains are bound to be ecclesiasticks ; and in foreign judicatures they were denied to be any part of the clergy , being only an order of knights under some particular regulations . but suppose them capable of appropriations of tithes , yet when the body is dissolved , the appropriation falls of it self , unless continued by act of parliament , as those of the templars were to them ; and those of the monasteries by h. . but where there is no clause to continue the appropriation , it must be understood to be left to the natural course of things , and so the appropriation sinks . iii. the third legal exemption is from prescription , and ancient compositions . this seems a difficult case , because something less than the real value is to be taken , and the rule in lyndwood is , non valet consuetudo , ut minus quam decima solvatur ; but in all such prescriptions and compositions there is less than the true value . to clear this matter , i shall shew , . that by our ecclesiastical law , all compositions are not condemned . . that by the common law all prescriptions are not allowed . and if these things be made out , it will follow , that where the compositions and prescriptions are legal , the clergy may with good conscience submit to them , as they do in other matters of law. . as to the ecclesiastical law , lyndwood himself makes these limitations ; . in case of personal tithes . he grants that as to them , a man may with a good conscience observe the custom although it be under the real value . now these are founded on the same laws that praedial and mixt tithes are ; and by the stat. e. . c. . they are reduced to a customary payment before easter , as it had been used forty years before : but besides these there were offerings to be compounded for , and the easter duties are a kind of composition for personal tithes . . in small tithes , the customary payment is allowed . the payment in lyndwood's time , was ob . for six lambs , because it was the tenth of the value at that time of a lamb of a year old ; the seventh lamb was to be paid in kind , for which ob . were to be paid back , because three lambs were wanting of the number ten. but can any one believe that d. was the true value then of a lamb of a year old ? and lyndwood doth not suppose it be the exact value ; but it was such as the provincial constitution determined , and he allows compositions super minutis decimis . . compositions were allowed with the bishop's consent with lay-persons for their tithes . as to what is past , there was no doubt ; but for the future he saith , it doth not hold sine iudicis auctoritate ; which implies , that by his consent it may . and if so , then a modus decimandi so qualified , is allowed by the ecclesiastical law. such compositions as these were entred into the bishop's registries , and if they were then made upon a valuable consideration at that time , i doubt the force of custom will get the better of the reason that may be taken from the great difference of valuation of things . . let us now consider what prescriptions and compositions are not allowable at common law. . no prescription de non decimando , is allowed among lay-persons , because none but spiritual persons are by the law capable of tithes in their own right . a lay-man , saith mr. selden , cannot be discharged of all payment by meer prescription , unless he begin the prescription in a spiritual person . and to the same purpose our great lawyers speak . but in the famous case of pigot and hern , a distinction was found out , which may prove of dangerous consequence , viz. that although the lord of a manor cannot prescribe for tithes , because he is not capable of them by our law , yet he may prescribe for a tenth shock , as a profit apprendre , as a thing appurtenant to his manor ; and so he may have decimam garbam , but not decimas garbarum . upon which resolution it is said in the bishop of winchester's case , that the lord of a manor may have tithes as appurtenant to his manor : for which there is no foundation in our ancient laws or customs , that i can find , and is inconsistent with what is before acknowledged , that none but spiritual persons are capable of tithes . but in plain truth , this case is not truly represented ; and my lord chief justice hobart , a person of great judgment and learning in the law , hath told the world , that this famous reporter hath sometimes given his own opinion , and that sudden , instead of the resolution of the court , which must take much off from the authority of his reports ; especially when the case is differently reported by others ; as it falls out in this case . for serjeant moor , who was of councel in that case , saith , that the defendant pleaded a modus decimandi in satisfaction for tithes , which was s. per annum : but as to the other point , whether such an ancient modus being made with the lord of a manor , binds the copy-holders , it is out of our way ; but surely there ought to be good proof , that the modus was made before the copy-holds holds were granted , which is not offered , but only that it might be so ; which deserves no other answer , but that it might not be so . and it is hard indeed , when judgments are given upon possibilities . and for the distinction of decima garba and decimae garbarum , in a composition for tithes , is the same thing . mr. selden , as to this case of pigot and hern , saith , it was an inheritance of tithes from immemorial time , by virtue of an ancient composition . and he would not understand the judges in any other sense : for no kind of infeodation of tithes is allowable here , he saith , so as to create in lay-men a perpetual right to them ( except only by the statute of dissolution of monasteries ) unless it be derived from some ancient grant of discharge from the parson , patron and ordinary , with a consideration of recompence to the parson ; and that either from time immemorial , or ancient composition . and to the same purpose he speaks in another place , where he owns , that by our law every parson had a common right to the tithes of all annual increase ( praedial or mixt ) within the limits of his parish ; and any title or discharge must be specially pleaded . . where a prescription is pleaded de modo decimandi , the actual recompence by composition must be shewed . for , as my lord coke saith , a modus decimandi is intended as a yearly sum in way of satisfaction for the tithes to the parson ; which rolls calls the actual recompence . in the register the account of the modus decimandi is thus set down : . there was a real composition , as four acres of land for some small tithes . . there was an agreement in writing , by the consent of ordinary and patron . but my lord coke saith , the modus may as well be for a sum of money as for land. suppose no ancient composition in writing can be produced , how far doth a prescription hold ? . it must be immemorial , or time out of mind . here a great point arises fit to be considered : suppose the thing it self hath been within memory , as improvements by hops , fruit-trees , &c. doth not a composition bind in this case ? i answer , that we are to distinguish personal contracts from real compositions . in the case of hitchcock and hitchcock , there was a contract between the vicar and parishioners , but it was denied to be a real composition , although confirmed by the ordinary , and affirmed not to be binding to the successors . a composition by a meer verbal agreement in the case of hawles and bayfield was declared to be neither binding to the party nor his successors . but in the case of tanner and small it was declared to hold for years , but not for life . my lord coke seems to be of opinion , that if it be a prescription , it must be time out of memory of man ; but that a real composition may be either before , or within memory of man ; but then it must be by parson , patron , and ordinary . it is well observed by sir simon degge in his useful book about these matters , that although real compositions are supposed in law to be the foundation of prescriptions de modo decimandi , where the patron , ordinary and parson did consent to them ; yet that the most of them have grown up by the negligence and carelesness of the clergy themselves , which , i am afraid , is too true . and he is of opinion , that no real composition can be made now to bind the successor , since the statute , eliz. c. . which restrains all binding grants to one and twenty years , or three lives ; and if so , then the consent of patron and ordinary cannot make it good . . it must be reasonable , and therefore it hath been rejected in these cases : . if it be a prescription to pay a certain tithe without the parson's view of the nine parts , because , saith hobart , it is against the law of partition , in the case of wilson and the bishop of carlisle . . if there be no recompence to the parson , as in the case of scory and barber , the prescription was founded on the parishioners finding straw for the body of the church . . if it be for paying only what was due in lieu of other tithes ; as in the case of ingoldsby and iohnson , that they paid their other tithes in lieu of tithes of dry cattel ; or in case a load of hay be prescribed for in lieu of tithe-hay , or ten sheafs of corn for the tithe of all the rest . . if it be not for something certain and durable . for this , saith hobart , shews an original weakness in the composition ; being of a thing certain and durable for that which is not so . iv. the last exemption or discharge that is pleaded as to the payment of tithes , is unity of possession : that is , where a monastery had the right of tithes by appropriation , and had other lands which did not pay tithes , because the owners were to receive them , these were actually free at the time of dissolution ; and the question is , whether they are legally so by virtue of the statute ? it cannot be denied , that unity of possession is in it self no legal discharge ; but whether by the words of the statute the judges were divided in opinion . but afterwards in the case of green and bosekin the judges allowed it , so it were not a meer unity of estate , but of occupation . hobart saith , that after it had been long controverted , it was received as the common opinion . coke , that where unity of possession gives a discharge , the title must be clear , the non-payment general , and the prescription time out of memory ; but if the appropriation were made in the time of ed. . h. . it could not be discharged by unity ; nor if it were a late abby-prescription . thus i have endeavoured to lay this matter before you as briefly and clearly as i could , from the best light i could get , that i might give you such directions , that you may neither run into needless and vexatious suits , nor be run down by frivolous pretences . it is your great advantage that you have the law of your side , if you understand it a right ; but have a care of being set on by such , whose interest it is to promote suits ; and i am sure it is yours to prevent them , if it be possible , and as much as lies in you . the church's right is not to suffer by your negligence ; and you are not to make the church to suffer by your contentions . he that loves going to law , seldom fails of having enough of it ; he suffers in his purse , in his reputation , in his interest , and the church suffers by his means . endeavour to gain , as much as may be , the love of your people by a kind , modest , courteous and peaceable behaviour , which is the best way to prevent , or to compose differences . if you are forced to sue for your maintenance , let them see that you are forced to it , and that you are always willing to put an end to all such disputes , if the church's right be secured , which you are bound to preserve . of the obligation to observe the ecclesiastical canons and constitutions , at a visitation october th . . in speaking clearly and distinctly to this case , there are these two things to be considered ; i. by what authority they do oblige , ii. in what way and manner they oblige . i. the first thing to be considered , is the authority by which ecclesiastical canons and constitutions do oblige . for , if there be not sufficient authority , there cannot be that obligation on conscience , which supposes a legal exercise of power , or a just right to command . our obedience to the orders of our superiours , is due by virtue of that divine law which requires us to be subject for conscience-sake : but our obedience is to be regulated by the order of iustice , i.e. it ought to be according to law. therefore it is necessary , in the first place , to enquire , whether there be among us any such things as ecclesiastical laws , i.e. such rules , which according to the constitution of our government , we are bound to observe . for we are members of a church established by law ; and there are legal duties incumbent on us , with respect , not only to the laws of god , but of the realm . for , although our office and authority , as church-men , hath a higher original ; yet the limitation of the exercise of it , is within such bounds as are allowed and fixed by the law of the land. it is therefore a matter of great consequence to us to understand how far our ecclesiastical constitutions are grounded upon the law of the land , which cannot be done without searching into the foundations of our laws . which lie in three things : . immemorial custom . . general practice and allowance . . authority of parliament . and i shall endeavour to shew how far our ecclesiastical constitutions are founded on these . . immemorial custom . our greatest lawyers allow ancient custom to be one of the foundations of our laws ; and my lord coke calls it one of the main triangles of the laws of england . i suppose he means foundations . and another saith , that the common law of england is nothing else but the common custom of the realm . my lord chief justice hales saith , that the common usage , custom and practice of the kingdom , is one of the main constituents of our law. coke quotes bracton ' s authority to prove , that custom obtains among us the force of a law , where it is received and approved by long use. and of every custom , he saith , there be two essential parts , time and usage ; time out of mind , and continual and peaceable usage without interruption . but in case of prescription or custom , he saith , that an interruption of ten or twenty years hinders not the title , but an interruption in the right ; the other is only an actual suspension for a time . it may be asked , how time and usage come to make laws , since time hath no operation in law , saith grotius ? not of it self , as grotius there saith , but with the concurrence of other circumstances it may . bracton saith , longa possessio parit jus possidendi ; and by a long and peaceable possession dominion is transferred , without either title or delivery ; which he founds on this good reason , that all claims of right ought to have a certain limitation of time , and length of time takes away any proof to the contrary . littleton saith , that time out of memory of man , is said to give right , because no proof can be brought beyond it . and this he calls prescription at common law , as it is distinguished from prescription by the several statutes of limitations . but whence is it then , that an immemorial possession gives right ? is it from the meer silence of the parties concerned to claim it ? no , silence gives no consent , where ignorance or fear may be the cause of it . and is it a punishment upon the neglect of the party concerned ? so bracton saith , time doth it per patientiam & negligentiam veri domini . but meer neglect doth not overthrow right , unless there be an antecedent law to make that neglect a forfeiture ? is it from a presumptive dereliction ? but that supposes not bare continuance of time , but some kind of voluntary act , which implies a sort of consent which doth not appear in this case . and it is a great mistake in those , who think there is no presumptive dereliction , where there is not a full consent ; for it may be , where there is the consent of a mixt will , i.e. partly voluntary , and partly involuntary ; when the circumstances are such , as the person rather chuses to leave his right , than submit to the lawful conditions of enjoying it : as if a man would rather quit his fee than perform the service which belongs to it . is it from the common interest of mankind , that some bounds be fixed to all claims of right ? because otherwise that men will be liable to perpetual disturbance , if the right be permitted to be claimed beyond any possibility of proof . or is it , lastly , that in such nations where immemorial custom obtains the force of a law , it seems agreeable to the foundations of law , that a long continued possession should carry right along with it . and this was the case here in england , as not only appears by what bracton hath said , but glanvil makes a great part of our law to consist of reasonable customs of long continuance . and st. germain affirms ancient general customs to be one of the principal foundations of our law ; and that they have the force of laws , and that the king is bound by his oath to perform them . and it is worth our while to observe what general customs he doth instance in ; as the courts of equity and law , the hundred court , the sheriffs turn , the court baron , &c. which depend not upon acts of parliament , but the ancient custom of england , which he calls the common law. and among these ancient customs , he reckons up rights of descent , escheats , the different sorts of tenures , freeholds , and the laws of property , as they are received among us . we are now to enquire , how far any of our ecclesiastical constitutions can be said to be built upon this foundation ; and upon immemorial custom generally received . . i place ( . ) the distribution of this national church into two provinces , in each whereof there is an archbishop with metropolitical power , which lies chiefly in these things , ( . ) the right of consecration of his suffragans . ( . ) the right of visitation of every diocess in such way and manner as custom hath settled it . ( . ) the right of receiving appeals from inferiour courts of judicature in ecclesiastical matters . ( . ) the right of presiding in provincial councils of the suffragans of his province ; which by the most ancient constitutions of this church , were to be held once a year ; so it was decreed in the council under theodore , a. d. . but by the difficulties of the times , they were discontinued ; and so the authority of examining things through the province , came by a kind of devolution to the archbishop and his courts . ( . ) the custody of vacant sees , by the custom of england , falls to the metropolitan , if there hath been no custom or composition to the contrary . and so it hath been upon solemn ▪ debates resolved in our courts of common law. coke thinks that of common right it belongs to the dean and chapter , but by custom to the archbishop . but panormitan saith , there was no pretence of common right for them , till the time of boniface viii . . the ordinary jurisdiction of every bishop over the clergy of his own diocess . this is as ancient as christianity among us . for no sooner were churches planted , but there were bishops set over them ; who had from the beginning so much authority , that none of the clergy could either receive or quit his benefice without their consent and approbation ; and they were all bound to give an account of their behaviour at their visitations ; and in case of contempt , or other misdemeamours , they were to proceed against them according to the canons of the church . i do not say the diocesses were at first all modelled alike , or with the same bounds which they now have ; which was unreasonable to suppose , considering the gradual conversion of the nation . for at first there was but one bishop in every one of the saxon kingdoms , except kent , where was but one suffragan to the metropolitan for some time , till the kingdoms came to be united ; or the kings consented to an increase of several diocesses , and uniting them under one metropolitan , which was a work of time. but in all the saxon councils we find no mention of any ecclesiastical jurisdiction , but what was in the bishops themselves , concil . cloveshoo , can. , , . concil . cealchyth . can. . egbert canon . c. , . the first who began to seek for exemptions , were the abbots , who were under the bishop's jurisdiction , who was too near them ; and therefore they endeavoured to get under the pope's immediate jurisdiction by charters of exemption , which the great abbies either procured or made ; and the more ancient the more suspicious . but the lord chancellor and three chief judges declared , that by the common law of england , every bishop in his diocess , and the archbishops in convocation may make canons to bind within the limits of their jurisdiction . . the subordinate jurisdiction which was lodged in the bodies of the clergy resident in cathedral churches , and of archdeacons in the several diocesses : i cannot find either of these to have had any jurisdiction here before the conquest , neither were there any courts of justice out of the several counties before ; for all causes were transacted in the county-courts and sheriffs turns , and appeals lay from them to the supreme judicature of the king and the lords . but this doth not hinder but these courts may be founded on the law of england . and so the original jurisdiction , which of right belonged to the bishop , might by degrees , and a gradual consent , come to be committed , as to some parts , to the bodies of cathedral churches , and to the archdeacons , who are , saith my lord coke , sixty in england . we are told in a late case of woodward and fox , that there are archdeaconries in england by prescription , which have no dependency on the bishop , but are totally exempt . and for this godolphin is cited , who refers to the gloss on the legatine constitutions , f. . where we read of some archdeacons having a customary and limited iurisdiction separate from the bishop , for which a prescription lies . but this is only for some special iurisdiction ; as the archdeacon of richmond for institutions , which came first by grant from the bishops ; but that not being to be produced , they insist upon custom and prescription , as the deans and chapters do , where the ancient compositions are lost . but none who understand the ancient constitution of this church , can suppose either of them to have been original , since the right to the jurisdiction of the diocess was in the bishop , before there were here either archdeacons or chapters with jurisdiction . in the case of chiverton and trudgeon , it was declared , that an archdeacon might have a peculiar jurisdiction , as to administration , &c. as the dean of st. paul's had at s. pancras ; and so the archdeacon of cornwall , as to wills. in the case of gastril and iones the chief justice declared , that the archdeacon is the bishop's officer , and his authority subordinate to the bishops , and granted by them ; but if special custom be pleaded , that must be well proved ; to which dodderidge agreed . but we must distinguish between archdeaconries by prescription , for which i can find no foundation ( being all derived by grant from the bishop ) and archdeacons having some kind of iurisdiction by prescription , which others have not ; which cannot be denied . all the power which the archdeacons have by virtue of their office , is per modum scrutationis simplicis , as lyndwood speaks , tanquam vicarius episcopi : whatever power they have beyond this , is not iure communi , but iure speciali , and depends either upon grant or custom ; which the gloss on the legatine constitutions calls a limited iurisdiction . the archdeacon's court is declared by the judges in woodward ' s case , to have been , time out of mind , settled as a distinct court , from which there lies an appeal to the bishop's court , by the statute , h. . c. . and so the archdeacon's jurisdiction is founded on an immemorial custom , in subordination to the bishops . as to deans and chapters , i observe these things : . that although ecclesiastical bodies in cathedrals were very ancient , yet we read not of any jurisdiction peculiar to themselves , during the saxon times . my lord. coke saith , there were chapters , as the bishop's council , before they had distinct possessions . and by their books , he saith , it appears , that the bishops parted with some of their possessions to them , and so they became patrons of the prebends of the church : such were london , york and litchfield . . that several of our chapters were founded and endowed by the bishops since the conquest : such was that of salusbury by osmund out of his own estate , as appears by his charter , and the confirmation of h. . so was that of lincoln by remigius , who removed the see from dorchester thither , and placed there a dean , treasurer , praecentor , and seven archdeacons , as henry of huntingdon saith , who lived near the time . and in following times those of exeter and wells were settled as dean and chapter ; for they were ecclesiastical bodies before , but not under that denomination . . that some had the legal rights of dean and chapters , as to election of bishops , and confirmation of leases , &c. but were a monastick body consisting of prior and convent : such were canterbury , winchester , worcester , after the expulsion of the secular canons ; for the monks not only enjoyed their lands , but were willing enough to continue the name of dean among them as at canterbury , after dunstan's time , agelmothas is called dean ; in worcester wolstan is called dean when he was prior ; and winsius , upon the first change , is said to be placed loco decani , by florence of worcester . at norwich , herbert the bishop founded the prior and convent out of his own possessions in the time of william ii. and they became the chapter of the bishop by their foundation . now as to these , it is resolved in the dean and chapter of norwich's case , that when the king transferred them from a prior and convent , the legal rights remained the same . and in hayward and fulcher's case , the judges declared , that an ecclesiastical body may surrender their lands , but they cannot dissolve their corporation , but they still remain a chapter to the bishop . and it was not only then delivered , but since insisted upon in a famous case , that it was the resolution of the iudges , that a surrender cannot be made by a dean and chapter , without consent of the bishop , because he hath an interest in them . . that h. . endowed some as chapters to new erected bishopricks , as chester , bristol , oxford , &c. h. , . h. . . and united others , as bath and wells , and coventry and litchfield , h. . . h. . . . that where the custom hath so obtained , there may be a legal-chapter without a dean ; as in the diocesses of s. david's and landaff , where there is no other head of the chapter but the bishop ; but they must act as a distinct body in elections and confirmations of grants by the bishops . . that by the ancient custom of england , there are sole ecclesiastical corporations as well as aggregate . a sole ecclesiastical corporation , is , where a single person represents a whole succession , and under that capacity is impowered to receive and to convey an estate to his successors : as bishops , deans , archdeacons , parsons , &c. but parsons and vicars are seized only in right of the church , but as to a bishop , he may have a writ of right , because the fee-simple abideth in him and his chapter ; and so may a dean and master of an hospital : and these are called bodies politick by littleton . that the exercise of the bishop's power may be restrained by ancient compositions , as is seen in the two ancient ecclesiastical bodies of st. paul's and litchfield . concerning which , it is to be observed , that where the compositions are extant , both parties are equally bound to observe their parts . thus by the remisness and absence of the bishops of litchfield from their see , by going to chester , and then to coventry , the deans had great power lodged in them , as to ecclesiastical jurisdiction there . after long contests , the matter came to a composition , a. d. . by which the bishops were to visit them but once in seven years , and the chapter had jurisdiction over their own peculiars . so in the church of sarum the dean hath very large jurisdiction , even out of the bishop's diocess ; which makes it probable to have been very ancient ; but upon contest , it was settled by composition between the bishop , dean , and chapter , a. d. . but where there are no compositions , it depends upon custom , which limits the exercise , although it cannot deprive the bishop of his diocesan-right . . the delegate jurisdiction which was committed to the several officers of the bishops courts , and the manner of their proceedings , is founded upon immemorial custom . in the saxon times i find no delegation of ecclesiastical jurisdiction ; for the bishops sate in person in the county-courts , and there heard ecclesiastical causes , as appears by the charter of h. . when he pretended to restore the saxon laws , c. . but william i. had settled the consistory-court by as good a law as any was made at that time , distinct from the county-court , and required all ecclesiastical causes to be there heard ; and his son h. . did but make a shew of restoring the saxon laws , and the former law came to be generally received ; and so mr. selden yields , that it grew to be a general law ; which shews that it obtained the force of a law by consent , as well as by authority . the consistory-courts being thus settled , and numbers of causes there depending , and the bishops being then by h. . in the constitutions of clarendon strictly tied to attendance upon the supreme courts of judicature , with other barons , there came a necessity of taking in other persons with a delegated power to hear causes , and to do such other acts of jurisdiction as the bishops should appoint . for it was still allowed that iure communi , the jurisdiction was in the bishop ; but iure speciali , & in auxilium episcopi , it might be delegated to others . and so it hath been here received , and not only here , but it hath been the general practice of christendom . as to the manner of proceeding in the ecclesiastical courts , it is the same in all parts , and built on the same grounds with those of our courts of equity and admiralty , which are as different from those of the common law. . the settling parochial rights , or the bounds of parishes depends upon an ancient and immemorial custom . for they were not limited by any act of parliament , nor set forth by special commissioners ; but as the circumstances of times , and places , and persons did happen to make them greater or lesser . in some places parishes seem to interfere , when some place in the middle of another parish belongs to one that is distant ; but that hath generally happened by an unity of possession , when the lord of a manor was at the charge to erect a new church , and make a distinct parish of his own demesns , some of which lay in the compass of another parish . but now care is taken by annual perambulations to preserve those bounds of parishes , which have been long settled by custom . but the bounds of parishes is not allowed to belong to the ecclesiastical jurisdiction . ii. the next foundation of law is a general practice , and allowance i.e. when things of themselves do not oblige by the authority of those that made them ; yet being generally received and allowed , they thereby become law to us . this we have in an act of parliament , h. . c. . wherein it is said , that the people of england are only bound to such laws as are properly their own , being in subjection to no foreign legislative power . but were not many things here received for laws , which were enacted by a foreign authority , as the papal and legatine constitutions ? true , say they , but it is not by virtue of their authority , but by the free consent of the people in the use and allowance of them : and so they are not observed as the laws of any foreign prince , potentate , or prelate , but as the customed and ancient laws of this realm , originally established as laws of the same , by the said sufferance , consent and custom , and no otherwise . so that here we have a full and express declaration by parliament ; that such canons as have been received and allowed by ancient custom , make a part of our laws , and continue to oblige , provided that they be not repugnant to the king's prerogative , nor to the laws , statutes , and customs of the realm , as it is expressed in another act of the same parliament , h. . c. . the ecclesiastical laws , saith my lord coke , are such as are not against the laws of the realm , viz. the common law , and the statutes and customs of the realm : and according to such laws the ordinary and other ecclesiastical iudges do proceed in causes within their conusance . so that by the acknowledgement of this great oracle of the common law , there are laws ecclesiastical in force among us , and causes to be judged by those laws , and officers appointed by the law to proceed according to them . the ecclesiastical laws and ordinances are owned by the statute , h. . c. . h. . c. . h. . c. . after the commission appointed for the review of them . e. . c. . the ecclesiastical courts are appointed to be kept by the king's authority , and process to be issued out in his name in all suits and causes of instance between party and party , where the causes are particularly mentioned , which belong to those courts , and no alteration is made in them , as to their powers , but only that the process should be in the king's name . but some persons in our age , who love to be always starting difficulties to humour such as bear ill . will to our constitution , have 〈…〉 although this act was 〈…〉 m. . yet that repeal 〈…〉 ●ac . . n. . therefore 〈…〉 stat. e. . is 〈◊〉 but the plain and short answer is this , that there was no need of any debate about the repeal of the statute of e. . after the first of q. eliz. because then the statute , h. . c. . was expresly revived , wherein the bishops were impowered to act as before they might have done , according to the laws and customs of the realm . by which no less men of the law than coke , popham , and other judges did think the stile of the court , and manner of their proceedings was comprehended . and the ancient episcopal iurisdiction is declared to be according to law , by the stat. el. c. . and all foreign iurisdiction is abolished , and the ecclesiastical iurisdiction annexed to the crown of this realm ; which is owned by every bishop when he takes the oath of supremacy . how then can it be imagined , that he should do any more to the prejudice of the crown , by the process being in the bishop's name , than the lord of a manor doth , when he keeps his courts in his own name ? to suppose that it is owning a foreign iurisdiction , is ridiculous ; for the bishops of england never pretended to act as ordinaries , by virtue of a jurisdiction from the pope , but by virtue of their original authority which they had by the laws of the realm , as to their exterior jurisdictions . and the authority they then acted by from the pope , was in cases extraordinary , when they were delegated by particular commission . and if there had been any real derogation from the king's prerogative , in the process being in the bishop's name , can any man of sense imagine , that it would have been permitted in such jealous times as to supremacy , as the latter end of h. . and the whole reign of q. elizabeth were , wherein the bishops wanted not enemies , but their malice would have been too apparent , if they had insisted on such objections ? but to proceed in shewing that the ecclesiastical laws have been owned by acts of parliament since the reformation , e. . c. . n. . the ecclesiastical iudges are required to proceed according to the king 's ecclesiastical laws . and to the same purpose , el. c. . n. . accordingly my lord coke frequently owns the ecclesiastical laws and iurisdiction , so they be bounded by the laws of the realm ; of which there can be no question . for deciding of controversies , and for distribution of iustice , saith he , there be within this realm two distinct iurisdictions ; the one ecclesiastical , limited to certain spiritual and particular cases ; the other secular and general , for that it is guided by the common and general law of the realm . and to the same purpose my lord chief justice hales in several places in a ms. discourse of the history and analysis of the common law , ch . , and . but here the great difficulty lies in finding out what these canons and constitutions are , which have been so received and allowed by our laws . for it is certain , that several canons made by popes , were not received here , as in the statute of merton , about legitimation of children born before marriage , stat. mert. c. . where the lords declared they would not alter the old laws for a new canon . for alexander iii. in the time of hen. ii. had made a canon to that purpose ; but as glanvil saith , it was contra jus & consuetudinem regni . the canon to take away the benefit of the clergy from bigami , was debated in parliament how far it should be received , and the sense there declared , which was complained of , e. . and taken away , e. . c. . the canon against investiture of bishops by a lay-hand , was never here received ; for although h. . after a long contest gave it up , yet it was resumed by his successors . the canons for exemption of the clergy , were never fully received here . some lawyers say , it was never observed ; i suppose they mean , according to the canons , but that they had legal privileges here , although not a total exemption , cannot be denied by any one versed in our laws from the saxon times . the pope's canon for the clergy not being taxed without his consent , was never received , as appears by the contests about it in the time of e. . and their submission afterwards . the pope's canons about appeals , provisors , dispensations , &c. were never received by such a general consent as to make them laws ; they were sometimes practised by connivence , and the kings , when it served their purposes , let them alone ; but as often as there was occasion , they were contested and denied , and statutes made against the execution of them . some canons i find disputed , whether they were received by the law of england or not . as the canon against clergy mens sons succeeding their fathers in their benefices immediately , without a papal dispensation ; is not only a part of the canon law , but enter'd in our provincial constitutions . but in the case of stoke against sykes , it was held by dodderidge and iones , two learned judges , that this canon was not received here . and dodderidge instanced in two other canons not received ; as against a man's marrying a woman he had committed adultery with ; and a lay-man's not revoking his first presentation . and sir iohn davis mentioned reckoning the months for presentation by weeks , and not by the calendar . but both these are disputable points . for some say , as to the former , that none but the king can revoke a presentation . but the canonists think a private patron may vary with the bishop's consent . and as to the way of computing the months , it hath been differently resolved ; but in catesbie's case , it was determined to be calendar-months for many reasons . but in the ancient resolution in the time of e. ii. the tempus semestre was reckoned from notice to the patron , and not from the death of the incumbent . rolls saith , by our law it is from the time the patron might have notice , with regard to the distance of the place where the incumbent died : which leaves the matter uncertain . but the register reckons from the vacancy . in many other cases the foreign canons were not received , for they allow but four months to a lay-patron , but our law six months ; they deny any sale of a right of advowson , but our law allows it , and a separation of it from the inheritance , which the canon law allows not ; and so in other particulars , but these are sufficient to my purpose . it is observable , that after the council of lions , where the pope was present , peckham , archbishop of canterbury , called a provincial council , wherein he mentions the difference of our customs from all others , and a temperament to be made suitable to them . and our judges in the great case of evans and ayscough , declared , that no canons bind here , but such as are recieved by the realm . and dodderidge said , that our ecclesiastical law doth not consist of the pope's decretals , but is an extract out of the ancient canons , general and national . but the judges agreed , that when they are received , they become part of our law. lord chief justice vaughan saith , that if canon law be made a part of the law of the land , then it is as much the law of the land , and as well , and by the same authority , as any other part of the law of the land. in another place , that the ancient canon law received in this kingdom , is the law of the kingdom in such cases . in a third , that a lawful canon , is the law of the kingdom , as well as an act of parliament . iii. i now come to the third thing , viz. the power of making canons by act of parliament . this is founded on the statute h. . c. . the words are , that no canons , constitutions and ordinances , provincial or synodal , shall be made , promulged and executed without the king 's royal assent or licence . canons so made , and authorized by the king's letters patents , according to the form of the statute , are said by lord chief justice vaughan , to be canons warranted by act of parliament . and such he affirms the canons of a. d. . to be . but some have objected , that these are only negative words , and are not an introduction of a new law , but a declaration of what the law was before . but my lord coke with far greater judgment , limits that expression , that what was then passed , was declaratory of the common law , to that clause , that no canons should be in force , which were repugnant to the laws of the realm . but as to the making of new canons , he only saith , that their iurisdiction and power is much limited , because they must have licence to make them , and the king 's royal assent to allow them , before they be put in execution . but he never imagined the sense of the statute to be , that no canons could be made but in parliament , or that the king had not a power to confirm new canons made by the convocation . as to the law , as it stood before , we must distinguish these two things ; . convocations called by the king 's writ to the bishops , and the body of the clergy , could never assemble without it . but the writ for the convocation to sit with the parliament , ( not together in place , but at the same time ) is contained in the writ to the bishop , and begins with the clause , praemunientes . and it is most probable , that it began on the same ground that the attendance of burgesses did , viz. that when they were brought into the payment of subsidies , they ought to give their consent . for i find , that in the time of h. . a. r. . the inferiour clergy complained , that they were taxed without their consent . . convocations called by the king 's writ to the archbishops ; and in this province the archbishop sends his mandate to the bishop of london , who is to summon all the bishops , &c. to appear at a certain time and place , and to act as they receive authority from the king. the not distinguishing these two writs , hath caused so much confusion in some mens minds , about the rights of the convocation : for they imagine that the convocation , as it treats of ecclesiastical matters , sits by virtue of the first writ , which is in the bishops summons to parliament ; but that related to them as one of the three estates of the realm , whose consent was then required to their own subsidies , which were distinctly granted , but confirmed by the other estates . but the other writ was directed to the archbishop , by which the bishops and inferiour clergy were strictly required to appear , and then to understand the king's further pleasure , as appears by the most ancient . writs for a convocation . which shews , that the convocation , properly so called , is an occasional assembly for such purposes as the king shall direct them when they meet . and this was the true foundation upon which the statute , h. . was built . for it cannot be denied , that in fact there had been convocations for ecclesiastical purposes called without the kings writ , by virtue of the archbishop's legatine power , which was permitted to be exercised here , although it were an usurpation upon the king 's right . so even in the time of h. . although there were a convocation summoned by the king 's writ to the archbishop of canterbury , yet cardinal wolsley , by virtue of his legatine power , superiour to that of the archbishop , removed the convocation to another place , and presided in it : which was as great an affront to the king 's as well as the archbishop's authority , as could well be imagined . but this was then patiently born : wherefore the statute is to be understood of legal , and not of legatine convocations . but when h. . was sufficiently provoked by the court of rome , he resolved to resume the ancient and legal rights of the crown , how soever disused by modern usurpations . and among these he claimed this of summoning the convocation , and directing the proceedings therein . the difference of these writs will best appear by the instance of the convocation , a. d. . in the year , . about the first of february the parliament writ was issued out to the bishops for calling their clergy to parliament ; and this is only ad consentiendum iis quae tunc ibidem de communi concilio regni nostri contigerint ordinari . the other writ for the convocation to the archbishops was issued out the twentieth of february , and had this clause , ad tractandum , consentiendum , & concludendum super praemissis & aliis quae sibi clarius exponentur ex parte meâ . the parliament at that time being dissolved , it 's certain the convocation sitting by virtue of the writ to the bishops must fall with it : but a great question arose , whether the convocation sitting by the writ to the archbishops , was dissolved , or not ? and the greatest judges and lawyers of that time were of opinion it was not . but those were not times to venture upon such points , when people were disposed to find fault , as they did , to purpose when the next parliament met ; who made use of the sitting of this convocation and the canons then pass'd , as one of the popular themes to declaim upon against the bishops , and to inflame the nation against the whole order . the greatest objection in point of law , was , that the commission had a respect to the convocation sitting in parliament-time , which began april . and the commission bore date april . the parliament was dissolved may . and the th of may a new commission was granted , which made void that of the fifteenth of april ; and so what was done by virtue of that , must be done out of parliament , and so not in convocation , according to h. . . although these canons were confirmed by the king's authority the thirtieth of iune the same year . after the king's restoration , an act of parliament passed for restoring the bishops ordinary jurisdiction ; wherein a clause is added , that this act did not confirm those canons of . but left the ecclesiastical laws as they stood . which act being passed by the king's assent , it voids the former confirmation of them , and so leaves them without force . but the alteration of our law by the act , h. . c. . lay not in this , that the convocation by the king 's writ to the archbishop , could not sit but in parliament-time ( although that in all respects be the most proper time ) for there is not a word tending that way in the statute ; but provincial councils having been frequently held here , without any writ from the king , and therein treating of matters prejudicial to the crown , by virtue of a legatine power , there was great reason for the king to resume the ancient right of the crown . for so william i. declared it in eadmerus , that nothing should be done in provincial councils without his authority . but afterwards we find hubert , archbishop of canterbury , holding a provincial council against the king's prohibition ; and several writs were sent to them to prohibit their meddling in matters of state in prejudice to the crown , h. . under penalty of the bishops forfeiting their baronies ; and to the like purpose , e. . e. . e. . which seems to be a tacit permission of these provincial councils , provided they did nothing prejudicial to the crown . and from such councils came our provincial constitutions , which lyndwood hath digested according to the method of the canon-law , and hath therein shewed what part of the canon-law hath any force here ; not by virtue of any papal or legatine power , but by the general consent of the nation , by which they have been received among us . but my business is not now with canons so received , but with canons made according to the statute , h. . . for it is ridiculous to imagine those are only negative words , for then they exclude the king's power of calling a convocation , as well as confirming the acts of it . for to what purpose is the king 's writ to call them together , if being assembled they can do nothing ? but i have already mentioned my lord chief justice vaughan's opinion , that the canons made a. d. . are warranted by h. . c. . it was urged by the council in the case of grove and eliot , carol. . that no canons can alter the law , which are not confirmed by act of parliament . but it was said on the other side , that these canons had been always allowed , having been confirmed by the king. one of the judges said , that the king and convocation cannot make canons to bind the laity , but only the clergy . but vaughan said , that those canons are of force , although never confirmed by act of parliament , as no canons are ; and yet , saith he , they are the laws which bind and govern in ecclesiastick affairs . the convocation , with the licence and assent of the king , under the great seal , may make canons for regulation of the church , and that as well concerning laicks as ecclesiasticks ; and so is lyndwood . there can be no question in lyndwood's time , but ecclesiastical constitutions were thought to bind all that were concerned in them ; and the ecclesiastical laws which continue in force by custom and consent , bind all ; the only question then is about making new canons , and the power to make them , is by virtue of an act of parliament , to which the nation consented ; and so there need no representatives of the people in convocation . and no such thing can be inferred from moor , . for the judges declared the deprivation of the clergy for not conforming to the canons , to be legal ; but they say nothing of others . but in the case of bird and smith , f. . the chancellor and three chief judges declared , that the canons made in convocation by the king's authority , without parliament , do bind in ecclesiastical matters , as an act of parliament . and therefore i proceed to shew , ii. in what manner we are obliged to the observation of these canons ; concerning which i shall premise two things ; . that i meddle not with such canons as are altered by laws ; for all grant , that unless it be in moral duties , their force may be taken away by the laws of the land. . there are some canons , where the general disuse in matters of no great consequence to the good of the church , or the rights of other persons , may abate the force of the obligation ; especially when the disuse hath been connived at , and not brought into articles of visitation , as can. . about gowns with standing collars , and cloaks with sleeves . but the general reason continues in force , viz. that there should be a decent and comely habit for the clergy , whereby they should be known and distinguished by the people ; and for this , the ancient custom of the church is alledged . but here a very material question arises , how far custom is allowed to interpret and alter the force of canons made by a lawful authority : for where a custom prevails against a standing rule , it amounts to this , whether practice against law , is to have more force than the law. and how can there be a reasonable custom against a law built upon reasonable grounds ? but on the other side , if custom hath no power in this case , then all the ancient canons of the church do still bind in conscience , and so we must not kneel at our prayers on sundays , nor between easter and whitsontide , which were thought to be made upon good reason at first ; and so many other canons which have long grown into a disuse . so that if we do strictly oblige persons to observe all ecclesiastical canons made by lawful authority , we run men into endless scruples and perplexities ; and gerson himself grants , that many canons of general councils have lost their force by disuse , and that the observation of them now would be useless and impossible . but on the other side , if meer disuse were sufficient , what would become of any canons and constitutions , where persons are refractary and disobedient ? this is a case which deserves to be stated and cleared . and we are to distinguish three sorts of customs . . customs generally obtaining upon altering the reason of ancient canons . . customs allowed upon the general inconveniency of modern canons . . customs taken up without any rules or canons for them . . as to general customs against ancient canons where the reason is altered ; i see no ground for any to set up those canons , as still in force , among us : for this must create confusion and disorder , which those canons were designed to prevent ; and the laws of the land do certainly supersede ancient canons , wherein the necessary duties of religion are not immediately concerned . for we must have a care of setting up ancient canons against the authority of our laws , which cannot be consistent with our national obligation , nor with the oath of supremacy . . as to customs relating to modern canons , if it hath any force , as to altering the obligation . . it must be general ; not taken up by particular dissaffected persons to our constitution ; for the custom of such men only shews their wilful disobedience and contempt of authority ; and all casuists are agreed , that contempt of lawful authority , is a wilful sin : which supposes a wilful neglect upon knowledge and admonition of their duty . for contempt is , nolle subjici cui oportet subjici ; and a lesser fault commited with it , is a greater sin than a greater fault in it self committed without it , i.e. by meer carelesness and inadvertency . but where there is an open and customary neglect , there is a presumption of contempt , unless some great and evident reason be produced for it . i do not say the bare neglect doth imply contempt in it self , but where there is admonition and a continuance after it , there is a down-right and positive contempt . but where the disuse is general , not out of contempt , but upon other reasons ; and there is no admonition by superiours , but a tacit connivence ; there is a presumtion of a consent towards the laying aside the strict obligation of the canons relating to it . . it must be reasonable ▪ i.e. on such grounds as may abate the force of the obligation . for there is a difference between a custom obtaining the force of a law , and a custom abating the force of a canon : in the former case the custom must be grounded on more evident reason than is necessary for the latter . wherein the casuists allow a permission of superiours joyned with reasonable circumstances , to be sufficient . but how can acts of disobedience make a reasonable custom ? cajetan saith , they are to blame who began it , but not those who follow it , when the custom is general . and suarez saith , it is the common opinion . the canonists say , if a custom be against a rule , the reason must be plain ; if only besides the rule , and be not repugnant to the end and design , the reasonableness when it becomes general , is presumed . but if the superiours take notice of it , and condemn it , it loses the force of custom , unless a new reason or higher authority appear for it . . but what is to be said for customs taken up without rules or canons ; of what force are they in point of conscience ? . it is certain , that no late customs brought in by such as have no authority to oblige , can bind others to follow them . for this were to lay open a gap to the introducing foolish and superstitious customs into the church , which would make distinctions without cause , and make way for differences and animosities , which all wise and good men will avoid as much as may be . it is a rule among the casuists , that voluntary customs , although introduced with a good mind , can never oblige others to observe them . and suarez yields , that a bare frequent repetition of acts cannot bind others , although it hath been of long continuance . . if the customs be such as are derived from the primitive times , and continue in practice , there is no reason to oppose , but rather to comply with them ; or if they tend to promote a delight in god's service . as for instance : . worshipping towards the east , was a very ancient custom in the christian church . i grant that very insufficient reasons are given for it ; which origen would not have men to be too busie in inquiring into , but to be content that it was a generally received practice , even in his time ; and so doth clemens alexandrinus before him , who thinks it relates to christ , as the sun of righteousness . tertullian and s. basil own the custom , and give no reason . but of all customs that of contention and singularity , where there is no plain reason against them , doth the least become the church of god. . the use of organical musick in the publick service . if it tends to compose , and settle , and raise the spirits of men in the acts of worship , i see no reason can be brought against it . if it be said to be only a natural delight , that reason will hold against david , who appointed it by god's own commandment . they who call it levitical service , can never prove it to be any of the typical ceremonies , unless they can shew what was represented by it . i come now to the measure of the obligation of the canons in force . and therein a great regard is to be had to the intention of that authority which enjoyns them ; and that is to be gathered from three things ; . the matter . . the words and sense of the church . . the penalty . . as to the matter . if it be in it self weighty , and tends to promote that which is good and pious , and for the honour of god , and service of religion , it cannot be denied but these canons do oblige in conscience . bellarmin distinguishes between laws of the church , which , he saith , are very few , and pious admonitions and good orders , which are not intended to oblige men to sin , but only in case of contempt and scandal . and as to the feasts and fasts of the church , which belong to the laws , he saith , they have mitissimam obligationem ; so any one would think , who considers how many are exempted , and for what reasons . gerson saith , that no human constitutions bind as to moral sin , unless it be founded on the law of god ; as he confesses the church's authority is , as to circumstances ; and then he thinks it obliges in conscience . the substance of his opinion , which hath been much disputed and controverted by modern casuists , lies in these things : . that where ecclesiastical constitutions do inforce any part of the law of god , although it be not expresly contained therein , they do immediately bind the consciences of men. . that where they tend to the good of the church , and the preservation of decency and order , they do so far oblige , that the contempt of authority therein , is a sin against the law of god. . that where the injunctions of authority are for no other end , but to be obeyed , he doth not think that there is any strict obligation in point of conscience . and so far cajetan agrees with him . and although the other casuists seem to be very angry with him , yet when they require a publick good , and the order of the church to be the reason of ecclesiastical laws , they do , in effect , agree with him . now as to the matter of our canons which respect the clergy , there are two especially which bind them strictly ; . the canon about sobriety of conversation , can. . yes , some may say , as far as the law of god obliges , i.e. to temperance and sobriety ; but the canon forbids resorting to taverns , or alebouses , or playing at dice , cards , or tables ; doth this canon oblige in conscience in this manner ? if it were a new thing that were forbidden , there were some plea against the severity of it ; but frequenting publick houses is forbidden by the apostolical canons , which are of great antiquity , by the council of laodicea , and in trullo , and many others since . and by the apostolical canons any presbyter playing at dice , and continuing so to do after admonition , is to be deprived . the illiberitan council makes it excommunication to play at dice . not meerly for the images of the gentile gods upon them , as albaspinaeus thinks , but because the thing it self was not of good report , even among the gentiles themselves ; as appears by cicero , ovid , suetonius , &c. as giving too great occasion for indecent passions , and of the loss of time . hostiensis reckons up sixteen vices that accompany it , which a clergyman especially ought to avoid . and playing at dice was infamous by the civil law. iustinian forbids clergymen not only playing , but being present at it . it was forbidden in the old articles of visitation here , and in several diocesan synods , spelm. ii. , , , , . so that there can be no reason to complain of the severity of this canon , which so generally obtained in the christian church . ii. the canons which relate to ministers discharging the several duties of their function , in preaching , praying , administring sacraments , catechizing , visiting the sick , &c. which are intended to inforce an antecedent duty ; which we can never press you too much or too earnestly to ; considering that the honour of religion , and the salvation of your own and the peoples souls depend upon it . ( . ) the next way of judging the church's intention , is by the words and sense of the church . cajetan thinks the general sense is the best rule . navarr saith to the same purpose , although some words are stricter than others . suarez , that the main obligation depends on the matter , but the church's intention may be more expressed by special words of command . tolet relies most upon the sense of the church : but the sense of the church must be understood , whether it be approving , or recommending , or strictly commanding , according to the obligation of affirmative precepts , which makes a reasonable allowance for circumstances . and so our church in some cases expresly allows reasonable impediments . and in precepts of abstinence , we must distinguish the sense of the church , as to moral abstinence , i.e. subduing the flesh to the spirit ; and a ritual abstinence in a meer difference of meats , which our church lays no weight upon ; and a religious abstinence for a greater exercise of prayer and devotion , which our church doth particularly recommend at particular seasons , which i need not mention . ( . ) by the penalties annexed , which you may find by reading over the canons , which you ought to do frequently and seriously , in order to your own satisfaction about your duties , and the obligation to perform them . but some may think , that such penal canons oblige only to undergo the punishment . to which i answer , that the case is very different in an hypothetical law , as suarez calls it ; when laws are only conditional and disjunctive , either you must do so , or you must undergo such penalty , which is then looked on as a legal recompence ; and ecclesiastical constitutions , where obedience is chiefly intended , and the penalty is annexed only to inforce it , and to deterr others from disobedience . for no man can imagine that the church aims at any man's suspension or deprivation for it self , or by way of compensation for the breach of its constitutions . and now give me leave not only to put you in mind , but to press earnestly upon you the diligent performance of those duties , which by the laws of god and man , and by your own voluntary promises when you undertook the cure of souls , are incumbent upon you . it is too easie to observe , that those who have the law on their side , and the advantage of a national settlement , are more apt to be remiss and careless when they have the stream with them , than those who row against it , and therefore must take more pains to carry on their designs . as those who force a trade must use much more diligence , than those who go on in the common road of business . but what diligence others use in gaining parties , do you imploy in the saving their souls : which the people will never believe you are in earnest in , unless they observe you are very careful in saving your own by a conscientious discharge of your duties . they do not pretend to fineness of thoughts , and subtilty of reasoning , but they are shrewd judges whether men mean what they say , or not ; and they do not love to be imposed upon by such a sort of sophistry , as if they could think that they can have such a regard to their souls , who shew so little to their own . therefore let your unblameable and holy conversations , your charity and good works , your diligence and constancy in your duties , convince them that you are in earnest ; and they will hearken more to you , than if you used the finest speeches , and the most eloquent harangues in the pulpit to them . these , the people understand little , and value less ; but a serious , convincing , and affectionate way of preaching , is the most likely way to work upon them . if there be such a thing as another world , as no doubt there is , what can you imploy your time , and thoughts , and pains better about , than preparing the souls of your people for a happy eternity ? how mean are all other laborious trifles , and learned impertinencies , and busie inquiries , and restless thoughts , in comparison with this most valuable and happy imployment , if we discharge it well ? and happy is that man , who enjoys the satisfaction of doing his duty now , and much more happy will he be whom our lord , when he cometh , shall find so doing . notes, typically marginal, from the original text notes for div a -e pag. , &c. histoire des o●●●ages des scavans . août , . p. . notes for div a -e regino . l. . p. . hispan . concil . p. . regino collect. canon . lib. . p. . burchard . l. . c. , . gratian . q. . c. . hieron comment . ad titum . epist. ad 〈◊〉 advers . luciferian . hier. in psal. ad evagr. ad marcel . cyprian . ep. . aug. in ps. . . ambros. ad eph. . . cor. . . theod. ad tim. . . iren. l. . c. . iohn , . tim. . , , &c. . . . . . titus . . de voto & voti redempt . lyndw. f. . concil . anglic. vol. . f. . constit. othon . f. . concil . angl. vol. . f. . constit. provinc . de officio archi-presbyteri , f. . concil . anglic. vol. . p. . lyndw. v. latratuf . . v. pabulo v. dei. * prov. constit . de offic. arch-presbyt . f. . concil . anglic. vol. . p. . concil . anglic. vol. . p. , . concil . anglic. vol. p. . constit. de haeret . f. . lyndw. f. . c. dudum . clem. de sepulturis . io. de athon . in constitut. othobon . f. . c. dudum de sepulturis . non potest esse pastoris excusatio , si lupus oves comedit , & pastor nescit . extr. de reg. juris c. . reginald . praxis , l. . tr . . c. . p. . constit. provinc . de clericis non resid . c. quum hostis . ioh. athon . ad constit. othon . f. . reginald . ib. n. . can. relatum ex. de cleri●is non resid . lyndw. in c. ●uum hostis . residcant cum effectu . ioh. de athon . in constit. othon . f. . continui . can. extirpand . de praebend . & dign . de praesumpt . f. . . de cleri●● non resident . cum hostis , &c. lyndw. f. . ioh. de athon . in constit. othon . f. . otho de instit. vic. f. . othobon . f. . ioh. de athon . in constit. othon . can. quia nonnulli de clericis non resid . quadril . . . c. . plato de leg. l. . arist. polit. l. . c. . nicom . l. . c. . . c. . 〈◊〉 . . de 〈…〉 c. ▪ lyndw. pr●v . c●st . f. , . concil . anglic. vol. , . de c●nse●r . dist. . c. , . lynd. f. . . sciat . si enim habeant expensas & magistros , peccarent , nisi plus sciant quam laici . provine . constit . de sacra vnct. f. . concil . angl. . vol. p. . c●●cil . angl. 〈◊〉 . p. ● , ●● . 〈…〉 . p. ● . ● . . lyndw. f. . orig. in iur. h●m . . p. . ed. 〈◊〉 . . q. . c. . lyndw. ad l. de poenis . f. . extr. de priv. c. porro in gloss. in 〈…〉 . in ephes. hem. . concil . angl. tom. . p. , , . calvin . instit. l. . c. . n. . pet. martyr . l. c. l. . c. . n. . in cor. . p. . bucer in matth. . p. . i●●t . . inst. . provinc . cons. quum secund . f. . can. . rep. . * multa impediunt promovendum , quae non de●iciunt . gloss. in c. . de vit. & honest. cleric . c. christiano , f. . de iure patron . c. pastoralis officii . gloss. in can. & malitiose . moor el. . cr. . can. . cr. . leon. . regino l. . c. , , , , . baluz . ad reginon . p. . concil . anglic. vol. . f. . c. . q. . episcopum , regino . l. . c. . concil . braga . . c. . . q. . placait . concil . cabil . . c. . de censibus , f. . de officio vicarii c. quoniam v. procurari . concil . anglic. vol. . , . extr. de vita & honestat . cleric . c. . prov. cont. f. . epist. ad ios. hall. concil . anglic. vol. . f. . . can. . brownlow's rep. f. . id. f. . lyndw. f. . c. . hob. . owen . cr. . . officium curae animarum est praecipuum a● spiritualissimum dei donum . ca●etan . in act. . concil . anglic. vol. . p. , . p. . p. . constit. prov. . parsons councellor , sect. . hob. . rolls . io. de athon . in constit. othob . f. . . . e. . ● r. . 〈◊〉 inst. . ●●oo● . godbolt . rolls . . e. . . hen. . . hen. . . . e. . . constit. othob . f. . . othob . f. . . provinc . constit . f. . lyndw. ib. v. sit content . . q. . c. vnio . concil . tolet. . c. . . q. . c. . clericus . ex. de praeb . c. referente . ex. de cleric . non-resident . c. quia nonnulli . ex. de praeb . c. de multa . less . l. . c. . dub. . pan. c. du . lu● . . de elect. sylv. benef. . sum. angel. ben. . tolet summa casim . . ● . . cr. car. f. . c. . . holland's case . notes for div a -e deut. . . levit. . . numb . . , . ● . , . selden's review , p. . hosea . . isa. . . . levit. . , . . . levit. . . ezek. . , . . . pet. . , . acts . . thess. . . heb. . . ad probandam ecclesiam parochialem , primo est necesse quod habeat locum certis finibus constitutum , in quo degat populus illi ecclesiae deputatu● . rebuff . ad concord . de collat. sect. stat. n. . bed. l. . c. . c. . l. . c. . l. . c. . l. . c. , . l. . c. . l. . c. , . bed. epist. ad egbert . p. . egbert . can. , , , . concil . anglie . . . . p. . can. . concil . anglic● . . p. , . p. . ansclm. episi . l. . ep. . ioh. de athon : in const. othob . p. . extr. de iure patron . c. . lyndw. f. . . de vit. & honest. c. . gloss. c. . q. . c. . concil . anglic. . . lynw. f. . . . . . extr. ne praeter vices , &c. c. . lyndw. de consert . e. stat. c. rect. athon . f. . ext. de praeb . c. de monachis . lyndw. d● o●ficio 〈◊〉 c. qu●● thorn. c. ▪ sect. . extr. de 〈◊〉 ordin . azor. p. . l. c. . barbosa de officio parochial . c. . n. . concil . angls . p. . angl. sacr. . . stub . vit. arch. h. huntingin angl. sacr. concil . angl. . . seld. . . l●st . . tit. h. . c. ● . can. . can. . notes for div a -e concil . angl. . . concil . angl. i. . egbert . dial. de eccles. instit . cum bedae epistol . ad egbert . dublin , . concil . angl. . . bed. t. . p. . alcuin . de offic c. . epist. . . de off. c. , bed. t. iv. . v. . ii. . viii . . august . in psal. . in psal. . . . de chordis . euseb. praep. l. . c. . ioseph . . c. appion . aben-ezra in exod. kimchi ad psal. . menass . concil . in exod. q. . aug. c. faust. l. . c. . c. adimant . c. . . de genes . ad lit . c. . . epist. ad ian. . c. . greg. epist. l. . c. . de consecr . dist. . c. . conc. narbon . can. . concil . cabil . c. . aquisgran . c. . arelat . vi. can. . rhem. . c. . paris . vi. l. . c. . de officio archipresbyt . f. . . aquin. in sent. l. . dist. . qu. . art. . . . . . ● . q. . . bell de cultu sanct. l. . c. . covarruv . car. resol . l. . c. . azor. t. . c. . q. . suarez de rel. tr. . l. . c. . n. . c. . n. , . waldens . t. . tit. . c. . ina ll. c. . withred . c. . alfred . c. , . athelst. c. . edgar . c. . ethelred . c. . canut . c. . concil . angl. ii. , , . pupill . oculi , part . . c. . homily of the place and time of prayer . eccles. polity , l. . n. . orig. in numer . hom. . c. . hom. . in levit. . chrysost. hom. . in matth. hom. in ioh. hom. . ad pop. antioch . hom. . in gen. de officio archipresbyt . v. sanctifices . alcuin . de offic. c. . wilt●em . in diptych . leod. c. . de cultu sanct. l. . c. . de feriis , f. . concil . angl. i. . soz. l. . c. . regest . l. . . concil . vasens . . c. . turon . . c. . arel . . c. . capitul . . . reginold . . . capit. . c. . erasm. praefat . ad eccles. sess. . c. . de reform . act. eccles. mediol . ● , . palaeot . de administr . eccles. bonon . part . . p. . godeau sur les ordres , p. . bordenave des eglis . cathedral . p. . tertul. de baptis . c. . leo ep. . ambros. serm. . theodulph . de ordine baptism . c. . alcuin . de bapt. cerem . p. . august . de symbol . ad catech. l. . c. . de fide & oper. c. . august . serm. . bed. l. . c. ● concil . in trullo , can. , . syn. a. & b. can. . duaren . de benef. l. . c. ▪ concil . angl. i. p. . theod. capit. , . l. l. canut . c. , . l. l. edmund . cap. . theod. capit. c. . regino i , . capit. l. . c. , . addit . . c. . gul. paris . de collat. benef. c. . perald . sum. vit. to. . de avarit . c. sect. . cantiprat . de apibus l. . c. . n. . hist. universit . paris . secul . . p. . aquin. quaest. quodlibet . q. . art. . caj . ad . . q. . r. . concil . tolet. . c. . c. . q. . c. . concil . paris . . c. . capit. l. . c. . capit. l. . c. . l. . c. . cajet . sum. v. benef. . . in. . . q. . r. . filliuc . tr. . c. . n. . concil . nanet . c. . regino inquisit . art. . baluz . append . ad regin . , , . thomassin , part. . c. . n. . can. apost . . nicen. c. . antioch . . laodic . . calced . , . cod. afric . c. . cresc . coll. tit. . concil . herudf , c. . can. edgar . . egbert . can. . capitul . l. ● . c. . concil . nannet . c. . concil . tolet. . c. . c. . q. . c. vnio . compegins de vnion . n. , , , &c. azor. p. . l. . c. . flam. paris . de resign . l. . c. . n. . addit . . n. . notes for div a -e baluz . ad capit. selden of tithes , p. . bignon . ad form. marc. p. . sirmond . ad capit. p. . lyndw. f. . extr. de censib . c. . c. . q. . c. . de consecr . d●st . . c. . c. . q. . c. . baluz . append . ad reginon . p. . ent. de eccles . aedific . c. ad audientium . seld. , . f. . capit. . c. . capit. , , . ivo p. . c. , . regino l. . c. . burch . l. . c. . c. . q. . c. . . concil . labb . t. . p. . filesaci opus . p. , &c. fragment . de majoribus pal. du chesn . t. . capit. l. . . regin . l. . , , , . inst. . b. capit. l. . c. . bignon . in marculph . l. . c. . aub. mirae . cod. donat. l. . c. . p. roverii reomaus , p. . de foro compet . f. . c. . q. . n. . concil . brac. . c. . de consecr . . c. . agabard . de dispens . c. . tertul. apolog. c. . cypr. ep. . ep. . ep. . selden of tithes , c. . n. . p. . spelm. con. p. . glanvil . l. . c. . spelm. concil . ii. p. . p. . p. . inst. . warwickshire , p. , &c. spelm. ii. p. . p. . p. . p. . p. . lyndw. f. . spelm. ii. p. . spel. gloss. c. altarage . ioh. de burgo pupill . oculi , f. . b. spelm. ii. , . pupilla oculi , part. . c. . spel. concil . ● , . mon. i. . ● . inst. . hob. r. . regist. f. . moor. f. . bustrod . . . r. . hob. . . rolls r. . . poph. r. . law of tithes , c. . p. . inst. . select 〈◊〉 . . moor . ● . el. . 〈…〉 . f. n. b. . b. . rolls . march ▪ law of tithes ▪ . inst. . rolls , . cosin's apo● . p. . inst. . r. , . rolls . . lyndw. de decimis . c. sanct c. negotiat . selden of tithes , . cr. car. . hob. . . regist. . rolls . . hob. . cr. car. . rolls . . iones . hardres . inst. . rolls . . . yelv. . cr. iac. . law of tithes , . c. . inst. . law of tithes c. . cr. car. . iones , . f. n. b. . rolls . . . rolls , . . rolls , r. . . hetley , . littleton , . n. . rolls , . . march , . hetley , . rolls , . , . palmer , . cr. car. , . lyndw. . spel. ii. . hardr. . kebl . . . inst. . . . monast. i. . . . ii. . . lynd. f. . f. n. b. . inst. . hardres , . poph. . rolls , . , . bulst . . . rolls , . . poph. , . hardr. . law of tithes . hist. of tithes , . m●n . . ●punc ; . . l. l. saxon. wh. p. . spelm. concil . . l. l. canut . c. , , . seld of tithes , p. . p. . p. . r. . inst. . dyer , . brook , . cr. car. . palmer , . selden , . lyndw. . b. selden , . not. in decret . l. . c. . n. . innocent . . epist. . c. . monast. i. , , , , , , . ii. , . du fresn . e. appropr . monast. i. , . ii. , , , . iii. , . extr. de praeb . c. de monachis . ext. de praeb . c. avar. ext. de praeb . c. extirp . extr. de monachis , ubi supra . ext. de supplend . neglig . prael . sicut nobis . rolls , . . pro. const. de offic. vic. c. quoniam . of tithes , p. . miscel parl. . birchington , l. . lyndw. f. . sacerdos parochialis opposed to beneficiatus . lyndw. f. petr. cluniac . ep. l. . . d. . c. . c. . q. . c. , , , , , . mon. i. . rolls , r. . . mon. i. . rolls , r. . . cr. . . yelv. . hardr. . cr. el. . bulstr. . . palmer , . cr. ●ac . . cr. eliz. . moor , . hutton , . owen , , cr. car. . hutton ▪ . rolls , a. . . littleton , . hetley , . mon. ii. inst. . rot. parl. h. . . mon. ii. . cr. . . palm . . walsingh . . cr. . . pal. . extr. de de●imis . c. . inst. . popham ▪ ● . innocent . . epist. l. . ep. . coke r. . . moor , . cr. car. . cr. . . moor , . iones , bridgm. . latch . . rolls . r. . ▪ selden 〈◊〉 tithes , ▪ lynd. f. . lynd. f. . b. c. consuc● f. . lynd. f. . lynd. f. . b. selden of tithes , p. . coke r. . . cr. . . rolls , . moor , , . hob. . cr. el. . r. . hob. . moor , . moor , . seld. p. . p. . select cases , . registr . . b. inst. . bulst . . . march , . hob. . yelv. , . inst. . select cases , . inst. . loon. . . parson's coun. part. . c. . hob. . rolls , . rolls , . cr. el. . march , . cr. eliz. . c. select cases , . bulst . . . hob. . moor , . . c. r. . . moor , . mob . . r. . notes for div a -e inst. . b. . b. . preface to r. sir iohn davis pref. hales history and analysis of the law , ms. inst. . b. inst. . b. grot. de j. b. & p. l. . c. . sect. . bract. l. . c. . l. . c. . n. . l. . c. . n. . c. . littl. ten. sect. . glanv . prol. dr. and st. c. . spel. con. i. p. . rolls , . . bulst . . . brownl . . . keble , . . panor . in c. cum olim . moor , r. . inst. 〈◊〉 . ventris , ii. . . godol . , . rolls r. . . . de offic. archdiac . gloss. in const. oth. p. . ventris , ii. . inst. . r. . 〈…〉 . i. . 〈◊〉 . a. . anderson , ii. . inst. . b. r. . palmer , . iones , . quo warranto , . 〈…〉 sect. . sect. . selden of tithes , p. . ●ordenave , f. . inst. . c. . . inst. . inst. . prooem . to inst. inst. . stat. de merton . c. . glanvil . l. . ● . . stat. de bigamis . c. . popham , . spel. conc● . . de eili●● presbyt . cum à jure sit inhibit . lyndw. f. . latch . . popham , . leon. i. . hugh's pars. law , c. . lyndw. f. . leon. i. . r. . rolls a. ● . reg. . b. inst. . spel. concil . ii. . iones , . latch . . plamer , . . vaugh. . . . vaugh. . bagshaw's arg. about the canons , p. . inst. . annal. bur●on , . car. . c. . eadmer . hist. p. . hoveden , p. . ●pel . ii. . ventris rep. ii. . gers●● de vit. spirit . lect. . cor. . cajet . sum. in verb. so●o de iust. l. . q. . art. . ad . sayr . clavis reg. l. . c. 〈◊〉 . n. . caj . ad . . q. . art. . suar. de leg. l. . c. . n. . roch. curt. de statut. sect. . n. , . sect. . n. , , , . soto , l. . q. . art. . suarez , de ll. l. . c. . , . origen . in numer . hom. . clem. alex. str. l. . tertul. apol. c. . basil. de sp. sancto c. . chron. . . bell. de r. d. l. . c. . de vit. spir. lect. . cor. . coroll . . cajet . sum. . contempt . &c. clerico● rum . can. apost . . laodicea , . in trullo , . carthag . . dist. . , , . aquisgr . c. . francf . c. . aquisgr . . c. . extr. de vit. & honest. cleric . c. . conc. west●●●n . c. . spelm. ii. . lynd. l. . c. . concil . illiber . can. . cicero phil. . ovid de a. a. l. . suet. in aug ▪ c. . hostiens . sum. d. . de excess . praelat . d. de aleat . l. . cujac . observ. l. . c. . c. de episcop . audient . caj . & prae●ept . navar. man. c. . n. , &c. suarez de ll. l. . c. . tolet. sum●● l. . c. . n. . for the colony in virginea britannia. lavves diuine, morall and martiall, &c. virginia. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a stc estc s this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) for the colony in virginea britannia. lavves diuine, morall and martiall, &c. virginia. strachey, william, ?- . [ ], , [ ] p. 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global keyed and coded from proquest page images - haley pierson sampled and proofread - haley pierson text and markup reviewed and edited - pfs batch review (qc) and xml conversion for the colony in virginea britannia . lavves diuine , morall and martiall , &c. alget qui non ardet . res nostrae subinde non sunt , quales quis optaret , sed quales esse possunt . printed at london for walter burre . . to the right honourable his singular good lord , the lord lawarr , of the heroyicke and religious plantation in virginia-britania , the sole personall aduancer , his maiesties lord gouernour and captaine generall . of all things we enioy , the founders worth is still most praide for : in attempts of warre , the chargers fame is euer most set forth : of all things founded true religion farre , we are worthyest palme , and merits holyest meede : this then heroyicke lord your glorie shrines , that y' are sole personall lord of this great deede , which more by all else shund the more it shines : skorne then all common aymes , and euery act where euery vulgar , thrusts for profit on , nor praise ; nor prise affect , like the meere fact nor any other honour build vpon , then onely this , since 't is for christs deare word , you shall be surnam'd ; the most christian lord. by an vnworthy follower of the same fortune , your lordships seruant , william strachey . to the much honoured , in all nations acknowledged the most renowned famous factor and professor of all actions that haue the warrant of religion , honour or goodnesse , sir thomas smith knight , and in this piou● plantation of virginia-britania , the vnremoueable cordiall friend , and right bounteous & well chosen treasvrer . sir , if the traffique with all nations , ( vent'ring your purse for profit ) hath renown'd your noble minde with all mens commendations , for this diuine gaine , it is triple croun'd , in which you traffique not with men , but god : not venturing , but surely gaining soules : not onely such as idlenesse had trod , as low as hell , and giuen their flesh to fowles , in our owne countrey : but such soules beside , as liuing like the sonne of earth , the moule haue neuer yet heauens sauing light descry'd : more then the world he gaines , that gaines a soule : which but your selfe , though few or none esteeme , assures your soule a heauenly diademe . william strachey . to the right honorable , the lords of the councell of virginea . noblest of men , though t is the fashion now noblest to mixe with basest , for their gaine : yet doth it fare farre otherwise with you , that scorne to turne to chaos so againe , and follow your supreme distinction still , till of most noble , you become diuine and imitate your maker in his will , to haue his truth in blackest nations shine . vvhat had you beene , had not your ancestors begunne to you , that make their nobles good ? and where white christians turne in maners mores you wash mores white with sacred christā bloud this wonder ye , that others nothing make ; forth thē ( great ll. ) for your lords sauiors sake . by him , all whose duty is tributary to your lordships , and vnto so excellent a cause . william strachey . to the constant , mighty , and worthie friends , the commit●ies , assistants vnto his maiesties councell for the colonie in virginea-britannia . when i went forth vpon this voyage , ( right worthy gentlemen ) true it is , i held it a seruice of dutie , ( during the time of my vnprofitable seruice , and purpose of stay in the colonie , for which way else might i adde vnto the least hight of so heroicke and pious a building ) to propose vnto my self to be ( though an vnable ) remembrancer of all accidents , occurrences , and vndertakings thereunto , aduentitiall : in most of which since the time our right famous sole gouernour then ; now lieutenant generall sir thomas gates knight , after the ensealing of his commission hasted to our fleete in the west , there staying for him , i haue both in the bermudas , and since in virginea beene a sufferer and an eie witnesse , and the full storie of both in due time shall consecrate vnto your viewes , as vnto whom by right it appertaineth , being vowed patrones of a worke , and enterprise so great , then which no obiect nor action ( the best of bests ) in these times , may carry with it the like fame , honour , or goodnesse . howbet since many impediments , as yet must detaine such my obseruations in the shadow of darknesse , vntill i shall be able to deliuer them perfect vnto your iudgements , 〈◊〉 i shall prouoke and challenge ) i do in the meanetime present a transcript of the toparchia or state of those duties , by which the●● colonie stands regulated and commaunded , that such may receiue due chicke , who malitiously and desperately heretoforè haue censured of it , and by examining of which they may be right sorie so to haue defaulked from vs as if we liued there lawlesse , without obedience to our countrey , or obseruancie of religion to god. nor let it afflict the patience of such full and well instructed iudgements , vnto whom many of these constitutions and lawes diuine or marshall may seeme auncient and common , since these grounds are the same constant , asterismes , and starres , which must guide all that trauell in th●se perplexed wayes , and paths of publique affairs ; & whosoeuer shall wander from them , shall but decline a hazardous and by-course to bring their purposes to good effect . nor let another kind quarrell or traduce the printing of them to be deliuered in particular to officers and priuate souldiers for their better instruction , especially vnto a company for the 〈◊〉 , vnsetled and vnfurnished , since we know well how short our memories are oftentimes , and vnwilling to giue sto●ge to the better things , and such things as limit and bound mankind in their necessariest duties . for which it transcends not the reach of his vnderstanding , who is conuersant , if but as for a festiuall exercise , ( euery 〈◊〉 moone ) in reading of a booke , that records and ed●cts for manners or ciuill duties , haue vsually beene fixed vpon ingrauen tables , for the commons daily to ouerlooke : a custome more especially cherished by those not many yeeres since in magnuza who haue restored ( as i m●● say ) after so great a floud and rage of abused goodness● , all lawes , literature and vertue againe , which had well nigh perished , had not the force of piety and sacred reason remaining in the bosomes of some few , opposed it selfe against the fury of so great a calamity , of whom it is an vndenyable truth , that the meanes and way wherby they reduced the generall def●ction , was by printing thereby so houlding vppe those inuolued principles , and instructions wherein ( as in a mirror , the blind and wandering iudgement might suruaye , what those knowledges were , which taught both how to gouerne , and how to obey , ( the end indeed of sociable mankinds creation ) since without order and gouernment , ( the onely hendges , whereupon , not onely the safety , but the being of all states doe turne and depend ) what society may possible subsist , or commutatiue goodnesse be practised . and thus law●s being published , euery common eye may take suruey of their duties , and carrying away the tenour of the same , meditate , & bethinke how safe , quiet , and comely it is to be honest , iust , and ciuill . and indeed all the sacred powers of knowledge and wisedome are strengthned by these two waies , either by a kind of diuine nature , which his happy creation hath blessed him with , the vertue whereof comprehendeth , foreseeth and vnderstandeth the truth and cleerenesse of all things : or by instruction and tradition from others , which must improue his wants , and by experience render him perfect , awaking him in all seasons a vigilant obseruer of ciuill cautions and ordinances , an excellent reason inforcing no lesse vnto the knowledge of him that will shine a starre in the firmament , where good men moue , and that is , that no man doth more ill then hee that is ignorant . for the auoiding of which , and to take away the plea of i did not know in him that shall exorbitate or goe aside with any delinquencie which may be dangerous in example or execution , albeit true it is how hee is indeede the good and honest man that will be good , and to that needeth fewe other precepts . it hath appeared most necessary vnto our present ethnarches deputy gouernor sir thomas dale knight marshall , not onely to exemplifie the olde lawes of the colony , by sir thomas gates published & put in execution by our lord generall laware during his time one whole yeere of being there , but by vertue of his office , to prescribe and draw new , with their due penaltyes , according vnto which wee might liue in the colony iustly one with another , and performe the generall seruice for which we first came thither , and with so great charges & expences , are now setled & maintained there . for my paines , and gathering of them , as i know they will be right welcom to such young souldiers in the colony who are desirous to learne and performe their duties , so i assure me , that by you i shall bee encouraged to go on in the discharge of greater offices by examining and fauouring my good intention in this , and in what else my poore knowledge or faithfulnesse may enable me to be a seruant in so beloued and sacred a businesse . and euen so committing to your still most abstract , graue and vnsatisfied carefulnesse , both it and my selfe , i wish returne of seuen fold into such his well inspired bosome , who hath lent his helping hand vnto this new sion . from my lodging in the blacke friers . at your best pleasures , either to returne vnto the colony , or to pray for the successe of it heere . william strachey . articles , lawes , and orders , diuine , politique , and martiall for the colony in virginea : first established by sir thomas gates knight , lieutenant generall , the . of may . exemplified and approued by the right honourable sir thomas west knight , lord lawair , lord gouernour and captaine generall the . of iune . againe exemplified and enlarged by sir thomas dale knight , marshall , and deputie gouernour , the . of iune . . whereas his maiestie like himselfe a most zealous prince hath in his owne realmes a principall care of true religion , and reuerence to god , and hath alwaies strictly commaunded his generals and gouernours , with all his forces wheresoeuer , to let their waies be like his ends , for the glorie of god. and forasmuch as no good seruice can be performed , or warre well managed , where militarie discipline is not obserued , and militarie discipline cannot be kept , where the rules or chiefe parts thereof , be not certainely set downe , and generally knowne , i haue ( with the aduise and counsell of sir thomas gates knight , lieutenant generall ) adhered vnto the lawes diuine , and orders politique , and martiall of his lordship ( the same exemplified ) an addition of such others , as i haue found either the necessitie of the present state of the colonie to require , or the infancie , and weaknesse of the bodie thereof , as yet able to digest , and doe now publish them to all persons in the colonie , that they may as well take knowledge of the lawes themselues , as of the penaltie and punishment , which without partialitie shall be inflicted vpon the breakers of the same . first since we owe our highest and supreme duty , our greatest , and all our allegeance to him , from whom all power and authoritie is deriued , and flowes as from the first , and onely fountaine , and being especiall souldiers emprest in this sacred cause , we must alone expect our successe from him , who is onely the blesser of all good attempts , the king of kings , the commaunder of commaunders , and lord of hostes , i do strictly commaund and charge all captaines and officers , of what qualitie or nature soeuer , whether commanders in the field , or in towne , or townes , forts or fortresses , to haue a care that the almightie god bee duly and daily serued , and that they call vpon their people to heare sermons , as that also they diligently frequent morning and euening praier themselues by their owne exemplar and daily life , and dutie herein , encouraging others thereunto , and that such , who shall often and wilfully absent themselues , be duly punished according to the martiall law in that case prouided . that no man speake impiously or maliciously , against the holy and blessed trinitie , or any of the three persons , that is to say , against god the father , god the son , and god the holy ghost , or against the knowne articles of the christian faith , vpon paine of death . that no man blaspheme gods holy name vpon paine of death , or vse vnlawfull oathes , taking the name of god in vaine , curse , or banne , vpon paine of seuere punishment for the first offence so committed , and for the second , to haue a bodkin thrust through his tongue , and if he continue the blaspheming of gods holy name , for the third time so offending , he shall be brought to a martiall court , and there receiue censure of death for his offence . no man shall vse any traiterous words against his maiesties person , or royall authority vpon paine of death . no man shall speake any word , or do any act , which may tend to the derision , or despight of gods holy word vpon paine of death : nor shall any man vnworthily demeane himselfe vnto any preacher , or minister of the same , but generally hold them in all reuerent regard , and dutifull intreatie , otherwise he the offender shall openly be whipt three times , and aske publike forgiuenesse in the assembly of the congregation three seuerall saboth daies . euerie man and woman duly twice a day vpon the first towling of the bell shall vpon the working daies repaire vnto the church , to heare diuine seruice vpon pain of losing his or her dayes allowance for the first omission , for the second to be whipt , and for the third to be condemned to the gallies for six moneths . likewise no man or woman shall dare to violate , or breake the sabboth by any gaming , publique , or priuate abroad , or at home , but duly sanctifie and obserue the same , both himselfe and his familie , by preparing themselues at home with priuate prayer , that they may bee the better sitted for the publique , according to the commandements of god , and the orders of our church , as also euery man and woman shal repaire in the morning to the diuine seruice , and sermons preached vpon the saboth day , and in the afternoon to diuine seruice , and catechising , vpon paine for the first fault to lose their prouision , and allowance for the whole weeke following , for the second to lose the said allowance , and also to be whipt , and for the third to suffer death . all preachers or ministers within this our colonie , or colonies , shall in the forts , where they are resident , after diuine seruice , duly preach euery sabbath day in the forenoone , and catechise in the afternoone , and weekely say the diuine seruice , twice euery day , and preach euery wednesday , likewise euery minister where he is resident , within the same fort , or fortresse , townes or towne , shall chuse vnto him , foure of the most religious and better disposed as well to informe of the abuses and neglects of the people in their duties , and seruice to god , as also so to the due reparation , and keeping of the church handsome , and fitted with all reuerent obseruances thereunto belonging : likewise euery minister shall keepe a faithfull and true record , or church booke , of all christnings , marriages , and deaths of such our people , as shall happen within their fort , or fortresses , townes or towne at any time , vpon the burthen of a neglectfull conscience , and vpon paine of losing their entertainement . he that vpon pretended malice , shall murther or take away the life of any man , shall bee punished with death . no man shal commit the horrible , and detestable sins of sodomie vpon pain of death ; & he or she that can be lawfully conuict of adultery shall be punished with death . no man shall rauish or force any womā , maid or indian , or other , vpon pain of death , and know ye that he or shee , that shall commit fornication , and euident proofe made thereof , for their first fault shall be whipt , for their second they shall be whipt , and for their third they shall be whipt three times a weeke for one month , and aske publique forgiuenesse in the assembly of the congregation . no man shall bee found guilty of sacriledge , which is a trespasse as well committed in violating and abusing any sacred ministry , duty or office of the church , irreuerently , or prophanely , as by beeing a church robber , to filch , steale or carry away any thing out of the church appertaining thereunto , or vnto any holy , and consecrated place , to the diuine seruice of god , which no man should doe vpon paine of death : likewise he that shall rob the store of any commodities therein , of what quality soeuer , whether prouisions of victuals , or of arms , trucking stuffe , apparrell , linnen , or wollen , hose or shooes , hats or caps , instruments or tooles of steele , iron , &c. or shall rob from his fellow souldier , or neighbour , any thing that is his , victuals , apparell , household stuffe , toole , or what necessary else soeuer , by water or land , out of boate , house , or knapsack , shall bee punished with death . hee that shall take an oath vntruly , or beare false witnesse in any cause , or against any man whatsoeuer , shall be punished with death . no manner of person whatsoeuer , shall dare to detract , slaunder , calumniate , or vtter vnseemely , and vnfitting speeches , either against his maiesties honourable councell for this colony , resident in england , or against the committies , assistants vnto the said councell , or against the zealous indeauors , & intentions of the whole body of aduenturers for this pious and christian plantation , or against any publique booke , or bookes , which by their mature aduise , and graue wisedomes , shall be thought fit , to be set foorth and publisht , for the aduancement of the good of this colony , and the felicity thereof , vpon paine for the first time so offending , to bee whipt three seuerall times , and vpon his knees to acknowledge his offence , and to aske forgiuenesse vpon the saboth day in the assembly of the congregation , and for the second time so offending to be condemned to the gally for three yeares , and for the third time so offending to be punished with death . no manner of person whatsoeuer , contrarie to the word of god ( which tyes euery particular and priuate man , for conscience sake to obedience , and duty of the magistrate , and such as shall be placed in authoritie ouer them , shall detract , slaunder , calumniate , murmur , mutenie , resist , disobey , or neglect the commaundements , either of the lord gouernour , and captaine generall , the lieutenant generall , the martiall , the councell , or any authorised captaine , commaunder , or publike officer , vpon paine for the first time so offending to be whipt three seuerall times , and vpon his knees to acknowledge his offence , with asking forgiuenesse vpon the saboth day in the assembly of the congregation , and for the second time so offending to be condemned to the gally for three yeares : and for the third time so offending to be punished with death . no man shall giue any disgracefull words , or commit any act to the disgrace of any person in this colonie , or any part therof , vpon paine of being tied head and feete together , vpon the guard euerie night for the space of one moneth , besides to bee publikely disgraced himselfe , and be made vncapable euer after to possesse any place , or execute any office in this imployment . no man of what condition soeuer shall barter , trucke , or trade with the indians , except he be therunto appointed by lawful authority , vpon paine of death . no man shall rifle or dispoile , by force or violence , take away any thing from any indian comming to trade , or otherwise , vpon paine of death . no cape marchant , or prouant master , or munition master , or truck master , or keeper of any store , shall at any time imbezell , sell , or giue away any thing vnder his charge to any fauorite , of his , more then vnto any other , whome necessity shall require in that case to haue extraordinary allowance of prouisions , nor shall they giue a false accompt vnto the lord gouernour , and captaine generall , vnto the lieuetenant generall , vnto the marshall , or any deputed gouernor , at any time hauing the commaund of the colony , with intent to defraud the said colony , vpon paine of death . no man shall imbezel or take away the goods of any man that dyeth , or is imployed from the town or fort where he dwelleth in any other occasioned remote seruice , for the time , vpon pain of whipping three seuerall times , and restitution of the said goods againe , and in danger of incurring the penalty of the tenth article , if so it may come vnder the construction of theft . and if any man die and make a will , his goods shall bee accordingly disposed , if hee die intestate , his goods shall bee put into the store , and being valued by two sufficient praisers , his next of kinne ( according to the common lawes of england , shall from the company , committies , or aduenturers , receiue due satisfaction in monyes , according as they were praised , by which meanes the colonie shall be the better furnished ; and the goods more carefully preserued , for the right heire , and the right heire receiue content for the same in england . there shall no capttain , master , marriner , saylor , or any else of what quality or conditiō soeuer , belonging to any ship or ships , at this time remaining , or which shall hereafter arriue within this our riuer , bargaine , buy , truck , or trade with any one member in this colony , man , woman , or child , for any toole or instrument of iron , steel or what else , whether appertaining to smith carpenter , ioyner , shipwright , or any manuall occupation , or handicraft man whatsoeuer , resident within our colonie , nor shall they buy or bargaine , for any apparell , linnen , or wollen , housholdstuffe , bedde , bedding , sheete , towels , napkins , brasse , pewter , or such like , eyther for ready money , or prouisions , nor shall they exchange their prouisions , of what quality soeuer , whether butter , cheese , bisket , meal , oatmele , aquauite , oyle , bacon , any kind of spice , or such like , for any such aforesaid instruments , or tooles , apparell , or housholdstuffe , at any time , or so long as they shall here remain , from the date of these presents vpon paine of losse of their wages in england , confiscation and forfeiture of such their monies and prouisions , and vpon peril beside of such corporall punishment as shall be inflicted vpon them by verdict and censure of a martiall court : nor shall any officer , souldier , or trades man , or any else of what sort soeuer , members of this colony , dare to sell any such toole , or instruments , necessary and vsefull , for the businesse of the colonie , or trucke , sell , exchange , or giue away his apparell , or houshold stuffe of what sort soeuer , vnto any s●ch sea-man , either for mony , or any such foresaid prouisions , vpon paine of times seuerall whipping , for the one offender , and the other vpon perill of incurring censure , whether of disgrace , or addition of such punishment , as shall bee thought fit by a court martiall . whereas sometimes heeretofore the couetous and wide affections of some greedy and ill disposed seamen , saylers , and marriners , laying hold vpon the aduantage of the present necessity , vnder which the colony sometimes suffered , haue sold vnto our people , prouisions of meale , oatmeale , bisket , butter , cheese &c , at vnreasonable rates , and prises vnconscionable : for auoiding the like to bee now put in practise , there shall no captain , master , marriner , or saylor , or what officer else belonging to any ship , or shippes , now within our riuer , or heereafter which shall arriue , shall dare to bargaine , exchange , barter , truck , trade , or sell , vpon paine of death , vnto any one landman member of this present colony , any prouisions of what kind soeuer , aboue the determined valuations , and prises , set downe and proclaimed , and sent therefore vnto each of your seuerall ships , to bee fixed vppon your maine mast , to the intent that want of due notice , and ignorance in this case , bee no excuse , or plea , for any one offender herein . sithence we are not to bee a little carefull , and our young cattell , & breeders may be cherished , that by the preseruation , and increase of them , the colony heere may receiue in due time assured and great benefite , and the aduenturers at home may be eased of so great a burthen , by sending vnto vs yeerely supplies of this kinde , which now heere for a while , carefully attended , may turne their supplies vnto vs into prouisions of other qualities , when of these wee shall be able to subsist our selues , and which wee may in short time , be powerful enough to doe , if we wil according to our owne knowledge of what is good for our selues , forbeare to work into our own wants , againe , by ouer hasty destroying , and deuouring the stocks , and authors of so profitable succeeding a commodity , as increase of cattel , kine , hogges , goates , poultrie &c. must of necessity bee granted , in euery common mans iudgement ; to render vnto vs : now know yee therefore , these promises carefully considered , that it is our will and pleasure , that euery one , of what quality or condition soeuer hee bee , in this present colony , to take due notice of this our edict , whereby wee doe strictly charge and command , that no man shall dare to kill , or destroy any bull , cow , calfe , mare , horse , colt , goate , swine , cocke , henne , chicken , dogge . turkie , or any tame cattel , or poultry , of what condition soeuer ; whether his owne , or appertaining to another man , without leaue from the generall , vpon paine of death in the principall , and in the accessary , burning in the hand , and losse of his eares , and vnto the concealer of the same foure and twenty houres whipping , with addition of further punishment , as shall bee thought fitte by the censure , and verdict of a martiall court. there shall no man or woman , launderer or launderesse , dare to wash any vncleane linnen , driue bucks , or throw out the water or suds of fowle cloathes , in the open streete , within the pallizadoes , or within forty foote of the same , nor rench , and make cleane , any kettle , pot , or pan , or such like vessell within twenty foote of the olde well , or new pumpe : nor shall any one aforesaid , within lesse then a quarter of one mile from the pallizadoes , dare to doe the necessities of nature , since by these vnmanly , slothfull , and loathsome immodesties , the whole fort may bee choaked , and poisoned with ill aires , and so corrupt ( as in all reason cannot but much infect the same ) and this shall they take notice of , and auoide , vpon paine of whipping and further punishment , as shall be thought meete , by the censure of a martiall court. no man shall imbezell , lose , or willingly breake , or fraudulently make away , either spade , shouell , hatchet , axe , mattocke , or other tools or instrument vppon paine of whipping . any man that hath any edge toole , either of his owne , or which hath heeretofore beene belonging to the store , see that he bring it instantly to the storehouse , where he shall receiue it againe by a particular note , both of the toole , and of his name taken , that such a toole vnto him appertaineth , at whose hands , vpon any necessary occasion , the said toole may be required , and this shall he do , vpon paine of seuere punishment . euery man shall haue an especiall and due care , to keepe his house sweete and cleane , as also so much of the streete , as lieth before his doore , and especially he shall so prouide , and set his bedstead whereon he lieth , that it may stand three foote at least from the ground , as he will answere the contrarie at a martiall court. euery tradsman in their seuerall occupation , trade and function , shall duly and daily attend his worke vpon his said trade or occupation , vpon perill for his first fault , and negligence therein , to haue his entertainment checkt for one moneth , for his second fault three moneths , for his third one yeare , and if he continue still vnfaithfull and negligent therein , to be condemned to the gally for three yeare . all ouerseers of workemen , shall be carefull in seeing that performed , which is giuen them in charge , vpon paine of such punishment as shall be inflicted vpon him by a martiall court. no souldier or tradesman , but shall be readie , both in the morning , & in the afternoone , vpon the beating of the drum , to goe out vnto his worke , nor shall hee returne home , or from his worke , before the drum beate againe , and the officer appointed for that businesse , bring him of , vpon perill for the first fault to lie vpon the guard head and heeles together all night , for the second time so faulting to be whipt , and for the third time so offending to be condemned to the gallies for a yeare . no man or woman , ( vpon paine of death ) shall runne away from the colonie , to powhathan , or any sauage weroance else whatsoeuer . he that shall conspire any thing against the person of the lord gouernour , and captaine generall , against the lieutenant generall , or against the marshall , or against any publike seruice commaunded by them , for the dignitie , and aduancement of the good of the colony , shall be punished with death : and he that shall haue knowlege of any such pretended act of disloyalty or treason , and shall not reueale the same vnto his captaine , or vnto the gouernour of that fort or towne wherein he is , within the space of one houre , shall for the concealing of the same after that time , be not onely held an accessary , but a like culpable as the principall traitor or conspirer , and for the same likewise he shall suffer death . what man or woman soeuer , shal ro●bany garden , publike or priuate , being set to weed the same , or wilfully pluck vp therin any root , herbe , or flower , to spoile and wast or steale the same , or robbe any vineyard , or gather vp the grapes , or steale any cares of the corne growing , whether in the ground belonging to the same fort or towne where he dwelleth , or in any other , shall be punished with death . whosoeuer seaman , or landman of what qualitie , or in what place of commaund soeuer , shall be imployed vpon any discouery , trade , or fishing voiage into any of the riuers within the precincts of our colonie , shall for the safety of those men who are committed to his commaund , stand vpon good and carefull guard , for the preuention of any treachery in the indian , and if they touch vpon any shore , they shal be no lesse circumspect , and warie , with good and carefull guard day and night , putting forth good centinell , and obseruing the orders and discipline of watch and ward , and when they haue finished the discouery , trade , or fishing , they shall make hast with all speed , with such barke or barkes , pinisse , gallie , ship. &c. as they shall haue the commaund of , for the same purpose , to iames towne againe , not presuming to goe beyond their commission , or to carry any such barke or barkes , gally , pinnice , ship. &c. for england or any other countrey in the actuall possession of any christian prince , vpon perill to be held an enemie to this plantation , and traitor thereunto , and accordingly to lie liable vnto such censure of punishment ( if they arriue in england ) as shall be thought fit by the right honourable lords , his maiesties councell for this colonie , and if it shall so happen , that he or they shall be preuented , and brought backe hither againe into the colonie , their trecherous flight to be punished with death . there is not one man nor woman in this colonie now present , or hereafter to arriue , but shall giue vp an account of his and their faith , and religion , and repaire vnto the minister , that by his conference with them , hee may vnderstand , and gather , whether heretofore they haue beene sufficiently instructed , and catechised in the principles and grounds of religion , whose weaknesse and ignorance herein , the minister finding , and aduising them in all loue and charitie , to repaire often vnto him , to receiue therein a greater measure of knowledge , if they shal refuse so to repaire vnto him , and he the minister giue notice thereof vnto the gouernour , or that chiefe officer of that towne or fort , wherein he or she , the parties so offending shall remaine , the gouernour shall cause the offender for his first time of refusall to be whipt , for the second time to be whipt twice , and to acknowledge his fault vpon the saboth day , in the assembly of the congregation , and for the third time to be whipt euery day vntil he hath made the same acknowledgement , and asked forgiuenesse for the same , and shall repaire vnto the minister , to be further instructed as aforesaid : and vpon the saboth when the minister shall catechise , and of him demaund any question concerning his faith and knowledge , he shall not refuse to make answere vpon the same perill . what man or woman soeuer , laundrer or laundresse appointed to wash the foule linnen of any one labourer or souldier , or any one else as it is their du●ies so to doe , performing little , or no other seruice for their allowance out of the store , and daily prouisions , and supply of other necessaries , vnto the colonie , and shall from the said labourer or souldier , or any one else , of what qualitie whatsoeuer , either take any thing for washing , or withhold or steale from him any such linnen committed to her charge to wash , or change the same willingly and wittingly , with purpose to giue him worse , old and torne linnen for his good , and proofe shall be made thereof , she shall be whipped for the same , and lie in prison till she make restitution of such linnen , withheld or changed . no captaine , master , or mariner , of what condition soeuer , shall depart or carry out of our riuer , any ship , barke , barge , gally , pinnace &c. roaders belonging to the colonie , either now therein , or hither arriuing , without leaue and commission from the generall or chiefe commaunder of the colonie vpon paine of death . no man or woman whatsoeuer , members of this colonie , shall sell or giue vnto any captaine , marriner , master , or sailer , &c. any commoditie of this countrey , of what quality soeuer , to be transported out of the colonie , for his or their owne priuate vses , vpon paine of death . if any souldier indebted , shall refuse to pay his debts vnto his creditor , his creditor shall informe his captaine , if the captaine cannot agree the same , the creditor shall informe the marshals ciuill & principall officer , who shall preferre for the creditor a bill of complaint at the marshals court , where the creditor shal haue iustice. all such bakers as are appointed to bake bread , or what else , either for the store to be giuen out in generall , or for any one in particular , shall not steale nor imbezell , loose , or defraud any man of his due and proper weight and measure , nor vse any dishonest and deceiptfull tricke to make the bread weigh heauier , or make it courser vpon purpose to keepe backe any part or measure of the flower or meale committed vnto him , nor aske , take , or detaine any one loafe more or lesse for his hire or paines for ●so baking , since whilest he who deliuered vnto him such meale or flower , being to attend the businesse of the colonie , such baker or bakers are imposed vpon no other seruice or duties , but onely so to bake for such as do worke , and this shall hee take notice of , vpon paine for the first time offending herein of losing his eares , and for the second time to be condemned a yeare to the gallies , and for the third time offending , to be condemned to the gallies for three yeares . all such cookes as are appointed to seeth , bake or dresse any manner of way , flesh , fish , or what else , of what kind soeuer , either for the generall company , or for any priuate man , shall not make lesse , or cut away any part or parcel of such flesh , fish , &c. nor detaine or demaund any part or parcell , as allowance or hire for his so dressing the same , since as aforesaid of the baker , hee or they such cooke or cookes , exempted from other publike works abroad , are to attend such seething and dressing of such publike flesh , fish , or other prouisions of what kinde soeuer , as their seruice and duties expected from them by the colony , and this shall they take notice of , vpon paine for the first time offending herein , of losing his eares , and for the second time to be condemned a yeare to the gallies : and for the third time offending to be condemned to the gallies for three yeares . all fishermen , dressers of sturgeon or such like appointed to fish , or to cure the said sturgeon for the vse of the colonie , shall giue a iust and true account of all such fish as they shall take by day or night , of what kinde soeuer , the same to bring vnto the gouernour : as also of all such kegges of sturgeon or cauiare as they shall prepare and cure vpon perill for the first time offending heerein , of loosing his eares , and for the second time to be condemned a yeare to the gallies , and for the third time offending , to be condemned to the gallies for three yeares . euery minister or preacher shall euery sabboth day before catechising , read all these lawes and ordinances , publikely in the assembly of the congregation vpon paine of his entertainment checkt for that weeke . the summarie of the marshall lawes . yee are now further to vnderstand , that all these prohibited , and forefended trespasses & misdemenors , with the inioyned obseruance of all these thus repeated , ciuill and politique lawes , prouided , and declared against what crimes soeuer , whether against the diuine maiesty of god , or our soueraigne , and liege lord , king iames , the detestable crime of sodomie , incest , blasphemie , treason against the person of the principall generals , and commaunders of this colonie , and their designs , against detracting , murmuring , calumniating , or slaundering of the right honourable the councell resident in england , and the committies there , the general councell , and chiefe commaunders heere , as also against intemperate raylings , and base vnmanly speeches , vttered in the disgrace one of another by the worser sort , by the most impudent , ignorant , and prophane , such as haue neither touch of humanitie , nor of conscience amongst our selues , against adultery , fornication , rape , murther , theft , false witnessing in any cause , and other the rest of the ciuill , and politique lawes and orders , necessarily appertaining , & properly belonging to the gouernment of the state and condition of the present colony , as it now subsisteth : i say ye are to know , that all these thus ioyned , with their due punishments , and perils heere declared , and published , are no lesse subiect to the martiall law , then vnto the ciuill magistrate , and where the alarum , tumult , and practise of arms , are not exercised , and where these now following lawes , appertaining only to martiall discipline , are diligently to be obserued , and shall be seuerely executed . no man shall willingly absent himselfe , when hee is summoned to take the oath of supremacy , vpon paine of death . euery souldier comming into this colonie , shall willingly take his oath to serue the king and the colonie , and to bee faithfull , and obedient to such officers , and commaunders , as shall be appointed ouer him , during the time of his aboad therein , according to the tenor of the oath in that case prouided , vpon paine of being committed to the gallies . if any souldier , or what maner of man else soeuer , of what quality or condition soeuer he be , shal tacitely compact , with any sea-man , captain master , or marriner , to conuay himselfe a board any shippe , with intent to depart from , and abandon the colony , without a lawful passe from the generall , or chiefe commander of the colonie , at that time , and shall happen to bee preuented , and taken therwith , before the shippe shall depart out of our bay , that captaine , maister or mariner , that shall so receiue him , shall lose his wages , and be condemned to the gallies for three yeeres , and he the sworne seruant of the colony , souldier , or what else , shall bee put to death with the armes which he carrieth . when any select , and appointed forces , for the execution and performance of any intended seruice , shall bee drawne into the field , and shall dislodge from one place vnto another , that souldier that shall quit , or forsake his colors , shall be punished with death . that souldier that shall march vpon any seruice , shall keepe his ranke , and marching , the drum beating , and the ensigne displayed , shall not dare to absent himselfe , or stray and straggle from his ranke , without leaue granted from the cheefe officer , vpon paine of death . all captaines shall command all gentlemen , and common souldiers in their companies , to obey their sergeants , and corporals in their offices , without resisting , or iniuring the said officers , vpon paine , if the iniurie be by words , he the offender shal aske his officer pardon in the place of arms , in the mead of the troopes . if by act , he the offender shall passe the pikes . that souldier that in quarrel with an other shall call vpon any of his companions , or countrimen to assist , and abette him , shall bee put to death with such armes as he carrieth . hee that shall begin a mutiny , shall bee put to death with such armes as he carrieth . where a quarrell shall happen betweene two or more , no man shall betake him vnto any other arms then his sword , except he be a captaine or officer , vpon paine of being put to death with such armes as he shall so take . if a captaine or officer of a companie shall come where two or more are fighting with their drawne swords , so soone as hee shall cry hold , and charge them to forbeare , those that haue their swords in their hands so drawne , shall not dare to strike or thrust once after vpon paine of passing the pikes . that souldier that hauing a quarrell with an other , shall gather other of his acquaintance , and associates , to make parties , to bandie , braue second , and assist him therin , he and those braues , seconds , and assistants shall passe the pikes . he that shall way-lay any man by aduantage taken , thereby cowardly to wound , or murther him shall passe the pikes . if any discontentment shall happen betweene officers , or souldiers , so as the one shall giue words of offence , vnto the other , to mooue quarrell , the officer or souldier shall giue notice thereof , to his corporall , or superior officer , and the corporall , or superior officer , shall commit the offender , and if it happen between commanders , the officer offended shall giue notice to the generall , or marshal , that he may be committed , who for the first offence shall suffer three daies imprisonment , and make the officer wronged , satisfaction before his squadron to repaire him , and satisfie him , without base submission , which may vnworthy him to carry armes . and the officer , or souldier so offended , hauing satisfaction offered shall with all willingnes receiue it , for which both producing it to his officer , and accepting of satisfaction , hee shall bee reputed an officer , or souldier well gouerned in himselfe , and so much the fitter to be aduanced in commaund ouer others , and if any shall vpbraid him , for not hauing fought a sauage headlong reuenge against his fellow , the officer or souldier so vpbraiding , shall bee punished and make satisfaction as the first offender , and if any shal so offend the second time he shall suffer ten nights lying head and heeles together , with irons vpon the guard , and haue his entertainement checkt for one month , and make satisfaction to the officer or souldier , as before remembred , and for the third offence , hee shall bee committed to the gallies three yeeres . and if vpon the first offence giuen by any officer or souldier , vnto any other , in words as aforesaid ; and the other returne iniurious words againe , they shall both be taken as like offenders , and suffer like punishment , sauing that he who gaue the first offence shall offer first repaire vnto the offended , which he the offended shall accept , and then shal hee proceed to returne tho like satisfaction vnto the other , and if any shall bee obstinate in this point of repaire , and satisfaction , hee shall suffer sharpe and seuere punishment , vntill hee shall consent vnto it , the words or manner of satisfaction , to be giuen vnto the party , or parties offended , shall be appointed by the chiefe officer of the company , vnder whom the officer , or souldier shall happen to bee , with the knowledge of the prouost marshall , prouided , that if the officer or souldier shall desire it , hee may appeale vnto the chiefe officer of the garrison , or vnto the marshall , if hee shall be present to iudge of the equity of the satisfaction . and if any lancepr●zado , corporall , or other officer , shall happen to bee present , or shall take knowledge of any such offence offered of one partie , or quarrell sought and accepted of more parties , he shall presently cause the partie , or parties so offending to bee committed to prison , that due execution may follow , as is formerly prouided . and if any lanceprizado , corporall , or superior officer shall neglect his or their duty , or duties heerein appointed , by not bringing the offender , and their offences , to the knowledge of the superior office , that satisfaction as aforesaid , vpon the fault committed , may orderly follow , the officer so offending , shal for his first omission , negligence , and contempt , suffer ten daies imprisonment , for the second twenty , and for the third losse of his place , and to bee put to the duty of a centinell : and if any officer or sould●er shall be present when two or more shall draw weapons , with intent to fight , or shall fight , they shall presently doe their best to part them , and if he be an officer he shall commit them , or put them vnder safe guard to bee committed , and if hee bee a priuate souldier , hee shal giue notice to the prouost , marshall , or vnto the first officer that he shal meet with , of the parties offending , who shall presently take order , that they may be apprehended , and committed to the prouost martialcy , and if any officer or souldier , shall happen to see any officer or souldier so fighting , and shall not doe his best to part them , without fauouring one part or other , hee shall bee punished at the discretion of the officer in chiefe , and the punishment shall extend to the taking away of life , if the cause shal so require , and if any officer , or souldier shall know of any purpose in any to fight , and shall not stay them , or discouer them to such officers , as are competent to stay them , but that they goe to fight , and doe accordingly fight , that officer , or souldier shall bee taken , and shall bee punished cleerely and in the same sort , as the offence deserueth punishment betweene them fighting . that officer , or souldier that shall challenge another to fight , and hee that shall carry any challenge , knowing it to be a challenge , and he that accepteth any such challenge with a purpose and returne of answere , to meete the saide challenger to fight with him , in this case they shall all three be held alike calpable , and lie subiect to the censure of a martiall court. that officer who shal command the guard and let such challengers and challenged , passe the ports , vpon his knowledge to fight , shall bee casseird , and if the officer be vnder the degree of a captaine , hee shall bee put to doe the duty of a centinell . no officer shall strike any souldier , for any thing , not concerning the order , and duty of seruice , and the publique worke of the colony , and if any officer shall so doe , hee shall bee punished as a priuate man in that case , and bee held vnworthy to command , so peruerting the power of his place and authority . no man shall be captaine of the watch at any time , vnder the degree of an ensigne . he that shall take the name of god in vain or shall play at cards or dice , vpon the court of guard , for the first time so offending , he shall bee committed to prison , there to lie in irons for three daies , for the second time so offending , hee shall be whipt , and for the third time so offending hee shall bee condemned to the gallies for one yeere . hee that shall absent himselfe from the court of guard , vppon his watch aboue one houre without leaue of his corporall or superiour officer , shall for his first time so offending , at the relieuing of the watch bee committed to prison , and there to lye in irons for . dayes , for the second time he shall be committed to prison and there lye in irons for one weeke , and haue his entertainement checkt for one weeke , and for the third time , hee shall be committed to the gallies for sixe moneths . he that shall swagger , and giue iniurious words vpon the court of guard , for the first offence , hee shall aske forgiuenesse vpon his knees , of the officers , and rest of the guard , before the captain of the watch at that time : for his second time so offending , he shall bee committed to the gallies for one yeere . he that draweth his sword vpon the court of guard , shall suffer death by the armes which he weareth . hee that should draw his sword in a towne of garrison , or in a campe shall lose his right hand . that souldier that shall goe out of the fort , towne or campe , other then by the ordinary guards , issues , waies , or ports , shall suffer death by the armes which he carrieth . he that shall abuse and iniurie the serieant maior , the prouost marshall , either by word , or deede , if hee bee a captaine , hee shall be casseird , if a souldier he shall passe the pikes . when the officer or souldier shall haue committed any crime , or haue made breach of the publique lawes , his captaine shall commit him vnto the seriant m●ior , who hauing taken his examination , shall send him to the prouost marshall , committed vnto prison , that he may bee brought to be censured by a court marshall . no souldier shall withstand or hinder the prouost marshall , or his men in the execution of his office , vpon paine of death . all captaines , lieutenants , serieants , and corporals , shall be diligent at conueuient times , to traine and exercise their companies , & shall haue a care of their armes , as they tender their entertainment , and vpon paine of casseiring , and other corporall punishment , as shall be inflicted by vertue of a marshall court . no man shall goe twelue score from the quarter , his colours , towne or fort , without leaue of his captaine , vpon paine for the first time of whipping , for the second offence to be committed to the gallies for one yeare , and for the third offence to suffer death . no man shall sell , giue , imbezell , or play away his armes , or any part thereof , vpon paine of death . no common souldier shall sell , or make away any of his apparell , which is deliuered vnto him by the colonie , or out of the store , vpon paine of whipping . no man shall depart from his guard without leaue of his officer , vpon paine of punishment : and who so shall be set centinell , shall not depart from it , vntill he be relieued , nor sleepe thereof vpon paine of death . no man shall offer any violence , or contemptuously resist or disobey his commaunder , or doe any act , or speake any words which may tend to the breeding of any disorder or mutinie in the towne or field , or disobey any principall officers directions vpon paine of death . he that shall not appeare vpon the guard , or not repaire vnto his colours , when the drum vpon any occasion shall beate either vpon an alarum , or to attend the buisinesse which shall be then commaunded , shall for his first offence lie in irons vpon the court of guard all one night , and for his second be whipt , and for the third be condemned to the gallies for one yeare . that souldier who fighting with an enenemie , shall lose his armes , or runne away cowardly , or yeeld himselfe but vpon apparant and great constraints or without hauing performed first the part of a good souldier , and an hones● man , shall suffer death with the armes which h● carrieth . that souldier that shall let go any caution deliuered vpon a treatie , or any prisoner of warre by his negligence , shall be punished with death . no souldier shall let goe any prisoner of war , which he hath taken without consent of his captaine , who shall aduertise the chiefe commaunder , vpon paine of being committed to the gallies for one yeare . that souldier which vpon an assault , or taking of any towne , that shall not follow his colours , and the victory , but shall fall to pillage for his priuate profit , after the place taken , shall suffer death with the armes which he weareth . no souldier may speake or haue any priuate conference with any of the saluages , without leaue of his captaine , nor his captaine without leaue of his chiefe officer , vpon paine of death . when the marshall or gouernour of a towne , shall demaund a souldier that hath made breach of these lawes , that captaine or any other that shall conceale him , or assist him to flie away , shall bee punished with the punishment which the fact of the said fugitiue deserued . that captaine that shall ipso facto , find any souldier breaking these fore declared lawes and ordinances , of whatsoeuer company he shall be , he shall commit him to the prouost marshall to be punished according as the offence committed commeth vnder the construction of the martiall law in that case prouided . no souldier shall vnprofitably waste his pouder , shot , or match , by shooting it idly away , or at birds , beasts , or sowle , but shall giue an account vnto his corporall of the same , who shall certifie his captain vpon peril for his first fault so cōmitted , to be cōmitted to prison , there to lie in irons head & heeles togither eight & forty hours , for the second to be condemned sixe monethes to the gallies , and for the third offence to be condemned two yeares to the gallies . all captaines , officers , and common souldiers , or others of what condition soeuer , members of the colonie , shall doe their endeauours to detect , apprehend , and bring to punishment all offenders , and shall assist the officer of that place for that purpose , as they will answere the contrary at our marshall court . all other faults , disorders , and offences that are not mentioned in these lawes , articles , and orders shall be & are supplied in the instructions which i haue set downe , and now shall be deliuered vnto euery captain , and other officer , so farre forth as the infancie , and as yet weake condition of this our present colony will suffer , and which shall be punished according to the generall custome , and therefore i commaund all men to looke to their charges , and him that hath no charge to looke to his owne carriage , and to keepe himselfe within the bounds of dutie , for the discipline sh●ll be strictly kept , and the offenders against the lawes therof seuerely punished . whosoeuer shall giue offence to the indians in that nature , which truly examined , shall sound to haue beene cause of breach of their league , and friendship , which with so great trauaile , desire , and circumspection , we haue or shall at any time obtaine from them without commission so to doe , from him that hath authoritie for the same , shall be punished with death . whosoeuer shall wilfully , or negligently set fire on any indian dwelling house , or quioquisock house or temple , or vpon any storehouse , or garner of graine , or prouision of what quality soeuer , or disualedge , ransacke , or ill intreat the people of the countrey , where any warre , or where through any march shall be made except it be proclaimed , or without commandement of the chiefe officers shal be punished with death . whosoeuer shal not do his endeauour and best to regaine & recouer his colours , if by hap it fall into the indians hands shall lie subiect to the censure of a marshall court . whosoeuer shal faine himselfe sick , vpō the point of fight , or when any worke is to be done or slip away from the seruice of either , shall be punished by death . vvhosoeuer shall raise any question , brabble or braule in the watch , or amboscado , or in scout , or sētinel in any other effect , or make any noise or rumor where silence , secrecie , and couert is to be required , shall be punished with death . whosoeuer shal not retreat when the drum or trumpet soundeth the same , whether it be vpon any sallies , made out of any town or fortres , or in skirmish , or in any incounter , shall be punished with death . it now resteth , that all captaines and supreme officers , whether gouernor in towne , fort or fortes , or captaine of companies shall be aduised to do their indeuors ioyntly , and to agree in one accord , that the true and neuer failing iustice , may be executed with all integrity of all these foredeclared lawes , according to the dignitie , power , and censure of the martiall court , that by the exemplar liues , and honourable practises of all that is good & vertuous , all things may be gouerned in good order , as no doubt , our right honorable lord generall doth assure himselfe , that all good and vpright men that haue the feare of god , and his seruice , and their owne honour in regard , will demean themselues no lesse , then according to the dignity of their place , and charge of their command , the vnited powers of his lordships knowledge , being so full of approued noblenesse , and the well knowne , and long time exercised grounds of piety , as without question he cannot but desire rather a little number of good men , obedient & tractable , submitting to good order & discipline , then a great armie , composed of vitious prophane , quarrellous , disobedient , and ignoble persons , wherefore in his lordships behalfe , i must intreat all gouernors , captains , officers , and soldiers , and neuerthelesse do inioyne , ordaine and command them to carry themselues in their seuerall duties and charges , according to the intention of his lordship , declared by these present ordinances . euery captaine shall cause to be read all these lawes which concerne martiall discipline , euery weeke vpon his guard day , vnto his company vpon paine of censure of a martiall court . instructions of the marshall for better inhabling of the colonell or gouernour , to the executing of his or their charges in this present colony the . of iune . . albeit the zeale which i beare vnto this businesse that we haue all now in hand touching the subsistance of this plantation , might iustly take vp all my spirits , and would require a large and passionate explanation of mine owne thoughts and promptnesse to gaine & possesse the hearts of all vnderstanding , noble and religious spirits therunto , yet i must craue pardon ( considering at this time many present impediments ) if i wrap vp any impatient desires & good affection hereunto , to all such vnto whom these necessarie effects of my dutie and office shall appertaine , and must be declared in few words and aduises , appertinent yet ( if not essentiall , as heat to bloud , to the aduancement hereof ) my desire then by these is chiefly to let all the worthier & better sort to vnderstand , how well it shall become their honors , birthes , breedings , reputations & fa●shes , to do their bests , and emulously to actuate in this worke , the vtmost of their cleerest powers of body and mind , where the trauaile of both is so deerely valued , & highly interpreted by al good and wise men , who knowing the grounds of all goodnes , cannot but know this , how this hazardous voyage ( as yet but in her earely daies , reflecting onely the comfort of faire hopes ) is vndertaken by you , more to honour god , your country , & to profit your knowledges , then for any other ends of profit , which speakes for you ( in despight of enuie and calumnie ) that you haue mindes much in loue with vertue , & are right noble & worthy instruments , to be imployed in so sacred and heroicke a cause , if it were well knowne heere the care that is had of this plantation in england , and the trauel that is taken therein , and the fire that doth not only burne in the generall body of our deare countrymen , to the encouragemet & ioy one of another amongst themselues , but flames out ( euen to the view of strange nations , as well our neighbours , as far remote ) for the furtherance & aduancement of this honorable enterprise , there is no man here would thinke that this my induction , had either fashion or purpose of a complement . if the wisest man that euer spake or writ ( except him that was both god & man ) summed vp all the reckonings of worldly felicities in these two words laecari & benefacere , imploying a cheereful mirth with well doing ( from which it cannot be seuered ) who hath more cause to be cheerefull , and inlie glad then you that haue the comfort of so great weldoing , to which no other may be compared ? for what weldoing can be greater then to be stocks & authors of a people that shal serue and glorifie god , which is the end of all our creation , & to redeeme thē from ignorance and infidelity , to the true knowledge and worship of god , whereby you are made partakers of this promise , that they which lead others into righteousnesse , shal shine like the starres in the sirmament , wherein be right well assured , that your happinesse is enuied by many a right knowing , and excellent vertuous man in england , who cannot happly by reason of other their imployments and callings , bee partakers of that comfort heere , as they are by their endeauors there at home . i shall not need to aduise any colonel , or gouernor here for the present how to carry himself , for each mans owne experiēce here hath made him out goal vse of my admonitiō , which my affection wold willingly else afford if there were cause . only to discharge my seruice to god whose souldier i doe now professe my selfe imprest , in this so glorious and great a cause of his , my duty to my soueraigne liege lord and king , & to his highnesse my royall prince and master , to my country and the expectation of many honorable select , painful , and religious aduenturers , patrones of this businesse , i haue conceiued no whit impertinent to deliuer and publish to euery imminent officer in this colony heere present , and for the direction and guiding of such who may heereafter arriue heere such and so many few in structions as may the better inable them to execute their charges , no whit doubting , but euery colonell , gouernour captaine , and other officer may sufficiētly vnderstand his and their duties , as they are souldiers , but happily not yet as they are , or may be coloni , members of a colony , which compriseth and inuolueth here , as well all the industrious knowledges & practises of the husbandman & of his spade , as of the souldier , and of his sword , since as monie is the paiment & wages of the one , so of the other are the fruits of the earth the tillage and manuring of the land , and in very truth of more necessity & vse shall we heere be of the latter then of the other , whether of you be comprehended the souldier himselfe or his salarie , since more easie it is to make a husbandman a souldier , then a souldier a husbandman . and indeed the necessity of our subsisting , and the very daunger which our enemies of this country can any way put vs vnto ( our companies and people well commaunded ) requiring the choise rather of the one then the other . these beeing then the ends and intents of this work , and so vnderstood , by euery supreme and chiefe commander , i refer him to these following instructions . all gouernors of town or towns , fort or forts , shall be ready ( when so be it they shall be summoned thereunto ) to take their oaths of allegeance vnto his maiesty & of faithfulnes vnto such his maiesties lieftenant or to his deputy or deputies ( authorised by commission to command ouer and within the prec●ncts of this whole colony , or colonies , by the tenor of which oathes they shall solemnly attest to perform all integrity , vprightnesse , iustice and sincere administration of the discipline and lawes in all causes and cases , for the good of the colony or colonies , prouided and declared , and shal indeuor the best they may , with all carefulnesse to aduance the dignity , and subsistance of the same , as well by giuing often in charge , and taking no lesse into their owne care , both the particular preseruation of all such helpes of what condition soeuer ( especially of cattell , and al kinde of such breeders , which may ef●oones redound vnto the vtility and profit of the same , as by tendring the prouisions of the store , and t●e we●l husbanding of the same , be they of what seuerall qualitie soeuer nor is he meanely to be watchfull , and iealous ouer his own waies and carriage in all particulars , making profession , and practise of all vertue and g●odnes for example vnto others to imitate , it being true that examples at all times preuaile farre aboue precepts , men beeing readier to bee led by their eies , then their eare , for seeing a liuely pattern of industry , order and comlinesse , wee are all of vs rather swayed vnto the same by a visible obiect , then by hearing much more in wel i●struct●d arguments . euery such gouernor therefore shall make it his firit duty to resort dayly and vsu●lly to the diuine seruice , next to put in execution the lawes duly against offenders and with all cherish and reward the well deseruing , and lastly with all worthines & circumspection on , abeare himselfe vnto and towards his garrison , intreating all men as well strangers as others , with al grace , humanity , and sweetnes of a noble nature , & manlinesse , vnto all which i hartily aduise , and withall inioyne euery such gouernor of town or towns , to be most indulgent , and carefull to performe , as hee will answer the contrary ( beside with the losse of his own honor , with such other penalties , as the neglect of so behoofefull and necessary businesse in him , may draw vpon the colony . further he ought to be most vigilant , circumspect , and prouident for the conseruatiō , defending , & keeping the town or fort , for & vnto his maiesty , wherin he is placed cheefe commander , & therfore ought the more duely to strengthen his iudgement , and remember his reputation , that he fall into neither of those extreames , which the needy and prodigall are most what culpable of , the one wasting the stocks , commodities and prouisions of the store , by which he must subsist , and the other by being rauenous and corrupt in himselfe become likewise enforced to tollerate the same in his inferior captaines , and so leaue the poore souldier and labourer , miserably pilled , oppressed and starued . further hee ought to prouide that the companies be trained , and that they may bee made ready for the publique seruice , and for that the condition of this country doth require rather shot then other armes , either for offence or defence , and time being pretious with vs in respect of our dayly labours and works abroad belonging to our subsisting , in so much , as a small portion thereof may bee affoorded and allowed vnto such exercising and training , therefore it is appointed by the marshall , that the captains that shall haue the guard , during their time of guard ( their people as then being exempted from their dayly labour and work abroad ) and their officers shall teach euery souldier to handle his peece ; first to present it comely , and souldier like , and then to giue fire , by false firing , and so to fall his piece to the right side with the nose vp , & when their souldiers are hardy and expert in this , they shall set vp a conuenient mark fast by the court of guard , at which euery souldier shall twice discharge his peece , at the releeuing of the watch , morning and euening , and he that shall shoot neerest the gouernor shall do wel to allow some addition of victuals , or pay , or some prize of incouragement , that euery one may therby emulously contend to do best : concerning the training , and cleanely exercising of their armes , & their postures , the captains shall haue order and directions for the same vnder the marshals hand which they shall put in execution during the time of their guard. it is also required that the gouernor neuer lie out of his towne or fort whereby hee may the better keepe good espiall vpon all officers , that they perform their seueral duties each one in his place especially in good obseruatiō of the watch & guard , for the more confidēt securing the charge cōmitted to him : hee shall not suffer in his garrison any souldier to enter into guard , or to bee drawne out into the field without being armed according to the marshals order , which is , that euery shot shall either be furnished with a quilted coate of canuas , a headpeece , and a sword , or else with a light armor , and bases quilted , with which hee shall be furnished : and euery targiteer with his bases to the small of his legge , and his headpeece , sword and pistoll , or scuppet prouided for that end . and likewisee euery officer armed as before , with a firelocke , or snaphaūse , head-peece , and a target , onely the serieant in garrison shall vse his halbert , and in field his snaphaunse and target . the gouernour shall haue a principall care , that he vse his garrison to the dayly wearing of these armors , least in the field , the souldier do finde them the more vncouth strange and troublesome . lastly the gouernor shall haue a singular care to put in execution all such orders and instructions as shall bee deliuered vnto him from the generall , or his deputie or deputies , concerning the imployments of his garrison vpon such manuall works and duties , as shall be thought necessary and conuenient for the better subsisting both of the laborer , and garrison committed vnto him ▪ in which is not to bee forgotten the chary conseruation of powder , and munition , which will the better inhable him for the defence of his charge . the gouernor shall be better instructed by taking notice of the lawes published , that these following abuses are prouided for , impious and malicious speaking against the holy and blessed trinity , blasphemy , and taking gods holy name in vain , traiterous words against his maiesties person , or royall authority , vnreuerent demeanor towards the ministers and preachers of the same , the detestable crime of sodomie , incest , theft , murther , false witnessing , treason against the person of the generall , and principall commaunders of this colony , and their designes , against detracting , murmuring or slaundering of the right honorable , the councell resident in england , and the committies there , the generall councel and subalternate commanders , heere , as also against intemperate raylings & base vnmanly speeches vttered in the disgrace one of another , all which the marshall law , as well as the ciuil magistrate is to punish , but these which concerne in particular the military discipline , to inable your iudgement for your sentence to be required , that it may with greater cleerenes , and vnderstanding , called to censure offences in the marshal court be deliuered , i haue abstracted , as followeth conference with the enemy , without leaue or warrant , frō the lord generall , lieute●ant generall , marshall , or chief & principal cōmand for the presēt . the designes , enterprises , and estate of the colony , reuealed to what enemy soeuer , by priuy messengers , or missiues , or otherwise in what sort soeuer . the not present aduertising , & giuing notice vnto a che●fe commaunder , of such things as any man knoweth intended any way , or by any body , for the domage , mischiefe or ill of the colony , or the concealement in any one of any matter of importance , and moment for the good of the colony . running vnto the enemy , or intending , and plotting to runne albeit preuented . of any one taken prisoner by the enemy , hauing meanes to escape , & not returning to the colony againe , vnlesse hee haue giuen faith . of attempting commotion , giuing occasion of sedition , or muteny in the colony , or seducing any labourer or souldier from their duty , diuine , ciuill , or martiall , or from their appointed works and labours . of disclosing or giuing the word vnto the enemy , or vnto any other , where it 〈…〉 be giuē . of receiuing , or protecting 〈…〉 , ●●●●nger , or suspected spie , or supposed enemy , into 〈◊〉 , or any couert , without making it knowne to the general , or chiefe officer , and without leaue from him so to do . suspitious and priuily entring into the campe town , or fort , or going out by any other waies and issues , then those which are accustomed , as ouer the ramparts , pall●zadoes , trenches , &c. of doing any act , or contriuing any practise , which may preiudice the seruice of his maiesty commanded for the good of the colony , by the generall , or chiefe officer . of breaking the truce , or peace at any time cōcluded with the indian , without leaue & warrant expresly giuen , by h●m who hath power so to doe . of pillaging , or violently forcing from any indian to friend , without leaue . of ransacking , ransoming , or violently outraging , and dispoiling the country people , or making war vpon them , be it in body or goods , vnles they be declared enemies , & warrant giuen to make prise of . of laying violent hands on his captaine or other superiour officer , and generally vppon any one whatsoeuer , to whom duty & obedience is due , especially if it be in the executing of his office. of him who shall see his superior , or chiefe officer in danger , and shall not doe his indeauour to rescue and relieue him with all his force , and power . of him who shall violently or hardly intreate , or kill his souldier , without good , & lawfull occasion , or that he haue deserued so to be intreated , not to satisfie his owne pleasure and appetite , to punish in colour , and reuenge , thereby thinking to make himselfe more redoubted , a braue man , & to be feared , remembring well , the life of a souldier , or a laborer , belongs to none to take away , but to the lord generall , lieftenant general , marshal , or their deputy or deputies . of killing any one , except it be in his own defēce . of striking or fighting with an other man , hauing a quarrell vnto him , and not holding his or their hands when an officer or third party comes between and cries , holah . of making debate , raising question , or laying his hand on his sword , and drawing it in the court of guard , in ambush or other place , where he ought to be modest , peaceable , silēt , & to keep himself in couert . of assaying or indeuouring by brauery , & chiefly by trechery , to outrage or iniury any one without a cause , in deed or in words , priuately behind his backe like a slie coward , or openly to his face , like an arrogāt russian , since words are the parents of blowes , & from quarrels infinite disorders , and mischiefes gather head whether in campe , towne , or fort. of reuenging a new wrong , or old iniury , by any course , contrary to the peace of the camp or colony . of running where any quarrell is a foote , and companies gathered together , furnished with other armes then his sword . of taking away any mony in brauery , wonne from another , or gotten by play otherwise without the will and consent of him , from whom he wonne it , or cheating or cosenage in play . of not repairing to the place of armes , or colors at the publique beating of the drum. of wilfully firing any place , without order from the superior officer . of sacriledge or taking any goods out of churches , or temples , be they sacred or prophane , without licence from the chiefe commander . of a souldier enrowling himselfe in two companies at one time . of going out of one company into another , without leaue of his captaine . of absenting himselfe from the campe , towne , or fort , without permission of a superiour officer . of him that shall receiue his pay , and shall go away without speaking a word , it is a case capital , and worthy of death . of suborning souldiers the one from the other , which is an euill example , and which doth draw many inconueniences with it . of quarrels , debates , and reuenge . of failing to go , or refusing to follow , where his ensigne shall march , or else where that he shall be commaunded by those who haue authoritie so to commaund without enquiring the cause . of abandoning his ensigne without leaue or going from the place assigned him , be it in fight , in the court of guard , centinels , or other part , not brought of by those who placed him there , or others hauing the same authority . of a souldier not doing his endeuour to recouer his ensigne , if the enemie haue taken it . of being wanting at his watch , vpon his time appointed , or of going of the guard without leaue , albeit vnder a colour of espie . of being found sleeping in centinell , or of him who placed vpon some guard or watch by his negligence hath giuen meanes to the enemie , to doe some spoile in the campe , towne , or fort , and to surprise them at vnawares . of running away from the battell , conflict , or assault , &c. and of him that marcheth too slowly , or maketh delaies in any other sort . of a souldier faining himselfe sicke , when any seruice is to be performed . of yeelding vnto the enemy , a place which he hath in gard , without doing first his duty to the vttermost , & be not cōstraind vnto it , according to the quality of the same , & the state wherunto he shal be drawn . of being appointed to defend a breach , trench , or passage , cōmitted vnto his charge , & do forsake it altogether , without being forced therunto by the enemy . of entring into any place taken by force , & pillaging the fame , not following his colors , or forsaking the fame , without a publike proclamatiō , made by the chiefe commander , that it shal be lawful so to pillage . of a soldier being found vnfurnished of his arms , and of such furniture , as he is appointed to weare and ought to haue , by losing them in play , or in cowardly runing away , or otherwise by his default or negligēce . of a souldiers going from his quarter , town , or fort , without he haue leaue f●om a superior officer . of a souldier aduancing himselfe , to go before the troopes , be it to come first to his lodging , or for any other occasion , or wandring heere and there , and stragling when he should march . of not retiring so soone as the drum or trumpet shall sound retreat , whether it be comming out of any towne , or skirmish or any other fight . of speaking loud , or making a noise in the battel or any other place , where silence is to be vsed , except those who haue power to command . instructions of the marshall for the better inhabling of the captaine of the watch , to the executing of his charge in this present colony . the . of iune . . sithence , as in euery liuing creature , there be many and sundry members , & those distinct in place and office , and all yet vnder the regiment of the soule , and heart , so in euery army , commonwealth , or colonie ( all bodies a like compounded ) it cannot be otherwise for the establishment of the same in perfect order and vertue , but that there should be many differing parts , which directed by the chiefe , should helpe to gouerne and administer iustice vnder him . and if it be thus in this ciuil audit , & courts of a well setled state , much more sure as it required , to be in their beginnings , and no lesse shall we read , how that first & great commander ouer the colony of the children of israel , conducting them from aegypt to make their plantation in the land of promise , appointed captains ouer tribes and hundreds for the wars , and elders to sit vpon the bench ( whilest vnto himselfe all great causes were brought , whether martial , or ciuil to direct and determine it otherwise being impossible , so many and infinite occasions both being to be thought vpon , and requiring iudiciall audience , should euer come by one mā ( of how indefatig●ble a spirit soeuer ) to be decided or determined . out of this example cōmended vnto vs by the holy writ , it may wel be , that many officers are still continued in all vnited societies , religious and wel gouerned : hauing then thus religion , beside prescription and reason , ( which mine owne breeding hath taught me how to make the best vse of , to be my guids in this new settlement , and in this strange and heathenous ( contending with all the strength and powers of my mind and body , i confesse to make it like our natiue country , i am not a little careful to adhere & take vnto mine owne endeuours , as many furtherances , as may helpe to work out with me the ends of this great imployment , which hath now possessed and furnished all states of christendom with discourse and expectatiō what may be the issue therof , & to what perfection so great , & frequent leuies of monies , & annuall transportations for these foure yeares of men , and prouisions , may bring this english plantation vnto : and as i haue constituted subalterne officers according both to the ancient & moderne order of the wars , and well approued the gouernment & magistracy , resembling and maintaining the lawes of england , so i haue taken paines to present so many & such instructions to such speciall officers ( whom our necessity teacheth to establish amongst vs ) as may most neerest concerne them for the present , ( leauing out yet i confesse many appertinent ones , which the time & our earely daies here of settlement may not yet admit of . let me aduise therfore euery officer now established , to hold it a seruice of duty faithfully to execute such orders and instructions , as i haue made it my mindes labour to expresse and draw out for him : and amongst the rest ( our no little safety consisting in our watch & guard as wel by day as night , we being set down in a stranger land , sauage , and trecherous , and therfore many sodaine and barbarous accidents to be feared , i haue as followeth extracted the duty of the captaine of the wrath an office not meanly appertaining and necessary vnto this colony , and whose ignorance , and supine negligence may much indanger the safetie thereof . that captaine who is captaine of the watch , must haue a speciall care of the safeguard and preseruation of the towne or fort committed to his charge , and of the liues and goods of the soldiers , and inhabitants , that through his defect , negligence , or ignorance in his charge , he giues not oportunity to the enemie to execute any of his deseignes , for the indamaging of the place or the inhabitants : now for the more faithfull executing of his charge , he shall doe well to take notice , that being the chiefe commander of the watch , he he is to answere for all disorders , misrules , riots , tumults and what vnquietnesse soeuer , shall happen in the towne or fort , and that if any of these shall fall out to be , he is to commit the parties so offending , to the prouost marshall , making the gouernour there-with acquainted , that the offender may receiue such punishment , as his fault shall deserue , of what quallity soeuer he be . at the setting of the watch , he is to repayre to the place of arms , with his gorget about his neck , if his company haue not the guard , there to be present with the sargeant maior , at the drawing of the billets for the guards , that he may the better know the strength of his watch , and how the companies are disposed vpon their guards . he is to remaine from the setting of the watch vpon the main court of guard , or guard appointed for him & his rounders that if any occasion present it selfe wherin his endeauour is to be vsed , hee may be the readier found to receiue the cheife officers direction , or to reforme any abuses that shall come to his knowledge , by the misdemeanors of any to bee found in the campe , towne or fort . the ports being shut , and the word deliuered out from the gouernor , he is to see that al his gentlemen , appointed for his assistants , doe come vpon their guard , where he is so to order it that by drawing of billets according to their lots , they may execute their rounds , whither first , second , third . &c. and after the corporalls haue set out their centinells , hee is to passe from his court of guard , with three or foure of his assistants , and so to make the round about the campe , towne , or fort , from guard to guard , receiuing from euery corporal the word of guet , that their be no error , or abuse , by variety of word : after which he is to goe into the court of guard , to see that such officers , rounders , and soldiers , apoynted for that guard , bee there present vpon their guard , then hee shall search the peices whither they be charged with bullet , and that the soldiers bee furnished with poulder and match for the better defence of the guard , committed to his charge , so commanding and inioyning euery officer , and soldier to execute his duty , for ther better security of the campe , towne , or fort : hee shall depart to the next guard there to doe the like , and so from guard to guard , vntill hee hath visited all the guards and centinells of his watch , giuing in charge to the officers of each guard to send forth their rounders , according to their order and directions . further hee shall command all disordred people ( vntimely sitting vp late in vsuall assemblies , whither in priuat meetings , publike tap-houses or such like places ) vnto their rests , for which he shall cause all fire and candles to bee put out and raked vp in the towne , and such night walkers , or vnruly persons whome hee shall meete in the streets , he shall either send to their lodgings , or to the prouost marshall , according as their misdemeanou● shall require . hee being returned to his owne court of guard shall see his rounders set forth euery one according to his order of billet , from houre to houre , and he shall informe him-selfe from these rounders which walke their rounds , two howers before day breake , whither the captaines and their guards , and their companies bee in armes according to their duties : if they bee not hee shall walke around towards the morning vnto those guards , and cause them to be put in armes , and shall informe the gouernour of those officers neglects , that they may receiue punishment : after this at the discharge of the watch , hee is with his guard to attend the serjeant major for the safe opening of the ports . at the opening of the ports , hee shall cause the people to stay that are to goe out of the towne , a pretty distance from his guard , that they may giue no incombrance to his guard , vntill such time , as he hath sent out certaine serjeants to discouer forth right , and vpon each side , as farre as the limmits of that fort are prescribed : at the returne of the serjeant , hee shall cause those of the towne to goe out leisurely and without thronging or confusion , and those without to come in , in like manner , warning the gards to stand in armes one houre after . from thence hee shall returne to the maine guard or place of armes to assist the serieant maior for the disposing of such men as are appoynted vnto ●●eir seuerall busines and workes of the colony for the whole day following : and likewise to see that those captaines , who haue the guard , do put in execution the cōmandements of the marshall for the trayning and disciplining of their men for the better inabling them to the seruice of the colony . after which he shall do well to present himselfe before the gouernour , or chiefe officer , to vnderstand his further commaunds . it shall bee his duty the time beeing come , when the general morning worke is to be left off , to cause the drum to beate , and with his guard of rounders to assist the captaines or capt. to bring the laborers into the church to heare diuine seruice , which beeing ended hee is to returne to the maine court of guard , there to be present for the ordering of all matters whatsoeuer to happen , during his time of being captaine of the watch , and when it shall so fall out that the indians do at any time come in way of trade or visitation vnto the camp , towne or fort , he shal leaue order with the guards that the suffer not them to enter before such time as they haue made him acquainted first of their beeing there , who shall informe the gouernor to know his pleasure , which beeing vnderstood hee shal so accomplish , at al times , appointing guards vppon such indians , that they do not steale any of out ●ooles , axes , howes , swords , peeces or what thing else ; and that none of our people talke publikely or priuately with them , or that they truck or trade with them , or doe any other vnorderly act , without leaue granted for the same from the gouernour , or chiefe officer , the omission of which duty , will bee required at his hands . hee must likewise take notice of all such breaches of the publique lawes and articles , as shall bee committed in the time of his guard , and accordingly command such persons to the prouost marshall , as shall bee found trespassers and breakers of the said lawes and articles . at the time or houres appoynted for the afternoone worke of the colony , euery labourer to his worke , and euery craftsman to his occupation , smiths , ioyners , carpenters , brick makers & . he shall cause the drumme to beate againe , to draw and call forth the people vnto their labour , when againe the worke on all hands towards night being to bee left off , hee is to cause the drumme likewise then to beate , and as before assist the capt : with the whole company to bring them to euening prayer . if it shall so bee that hee bee capt. of the watch vpon sonday , it shall be his duety to see that the saboath be no waies prophaned , by any disorders , gaming , drunkennes , intemperate meeting , or such like , in publike or priuate , in the streetes or within the houses . it shall be his duty halfe an houre before the diuine seruice , morning & euening , to shut the ports and place centinels , and the bell hauing tolled the last time , he shal search all the houses of the towne , to command euery one , of what quality soeuer ( the sick and hurt excepted ) to repaire to church , after which he shall accompany all the guards with their armes , ( himselfe being last ) into the church , and lay the keyes before the gouernor . if at any time any alarme be taken , he is to strengthen himselfe from the maine court of gard , taking a competent proportion of that guard , for the securing of his person , and so to repaire to the place where the alarme was giuen , to enforme himselfe by what means the alarum came , causing his rounders to command all guards to be in armes for the readier execution and resistance of any perill , and conseruation of their charge , and if he find the alarum to be truly giuen , and that the enemy approch the fort , towne , or campe , he is to send to aduertise the gouernor or chiefe officers to know his directions for the assembling of guards , and ordering and drawing a force , for the better preuention of the enemies designes . lastly , when the guard is set , and another captaine hath the watch , hee shall present himselfe before the gouernor or chiefe commander , to giue account vnto him of all such accidents , trespasses and neglects , as haue beene committed during the time of his watch . thus to conclude , though his office amongst many others be a chief and principall office , and there be many weighty and frequent duties required in this great duty of the captaine of the watch , yet these are the most essentiall and necessariest which i can yet aduise , the neerest to concerne vs. instructions of the marshall , for the better inabling of a captaine , to the executing of his charge in this present colonie . iune the . . that captaine that will honestly and religiously discharge himselfe , and the duty entrusted to him , shall doe well to conceiue of himselfe , as the maister of a family , who is at all times so to gouerne himselfe , as knowing assuredly that all the crimes and trespasses of his people vnder him shall bee exacted at his hands , not onely by his superior officer and iudge here , but by the great iudge of iudges , who leaues not vnpunished the sinnes of the people , vpon the magistrates , in whose hands the power and sword of iustice and authority is committed , to restraine them from all delinquences , misdeeds and trespasses . and moreouer since the captaine is to know , that not onely the command of their ciuill duties is at his directions , for which he is to answer , but likewise al their actions and practises which shal breake forth in them , contrary to the diuine prescriptions of piety and religion : their periuries , blasphemies , prophanenesse , ryots , and what disorders soeuer , and generally all their breaches of both the sacred tables , diuine , and morrall , to god and man , and in this place most especially , where the worke assumed , hath no other ends but such as may punctually aduance the glory , and propagation of the heauenly goodnesse , for which so many religious lawes and ordinances are established , and declared , all tending to the subsisting of a colony , the first seed-plot and settlement of such a new temporary kingdom and state , as may reduce , and bring poore misbeleeuing miscreants , to the knowledge of the eternall kingdom of god ( therefore by him first shut vp in misbeliefe , that in his due time , when it should so please him , hee might againe on them shew mercy ) it is carefully therefore by each captaine to be considered , how pretious the life of a poore souldier is , but how much more pretious his soule , and that he make conscience how he expose the first to apparant ruine and mischiefe , or suffer the other to run on into headlong destruction : for the first let his wisedom , knowledge , and circumspection be euer awake , and ready how to imploy , and when and with what assurances , regards and cautions , either left to his owne power , or prescribed him by vertue of these from the marshall , and for the other , let him first be mindfull to giue witnesses in his owne life , how carefull hee is to please god , who must blesse all that he vndertakes , and walke himselfe in a noble example of iustice and truth ; which doth not onely enforce a reputation and respect from other men , but an imitation and following of the like by other men : and vnto this may the diuerse and frequent changes and strictnesse of the place where we are , and the hardnesse of the many with whom he shal haue to do , with other chances & difficulties be motiues sufficient to perswade him , in which yet let him remember this , that it is in vaine in such place as heere , to pretend onely to bee vertuous and religious , except a man bee vertuous and religious indeed , and that vertue extend it selfe to example . but since i assure my selfe that of this aduice no capt. voluntarily imploying himselfe in such a busines as this is , and onely for the businesse sake , hath any need , i commend him to the following instructions . euery captaine shall ( if conueniently hee may ) present himselfe before his colonel or gouernor , once a day , to vnderstand his commands , the which hee must bee carefull , neither to exceed at any time , nor bee defectiue in their full accomplishment , albeit he shall haue a shew and presentment at any time of a better aduantage , since concerning his imployment hee may bee ignorant of the chiefe commaunders ends . hee shall doe well to haue a speciall eye and regard ouer his company , that they as well br●ake not the publique lawes , and orders prescribed them , but also performe all dueties and seruices vnto which they shall bee for the present commaunded , the which that he may with the better aptnesse and conueniency draw them vnto , it shal be his duty to haue knowledg , and take notice of euery one of his vnder officers , offices and duties ; that he may the readier reforme faults committed , eyther by negligence , or ignorance , and at the time of watch he shall send his serieant to the serieant maior for the word , and if he haue the watch himselfe , hee shall after the word giuen out , call vpon his court of guard , all his company ( vnlesse his centinels ) and assembled together , humbly present themselues on their knees , and by faithfull and ze●lous prayer vnto almighty god commend themselues and their indeauours to his mercifull protection . after prayer , either the captaine himselfe , or some one of his vnder officers , shall accompany the centinell to the place of guet , after which he shall search all the pieces vpon the court of guard , that they be charged with bullet against the captaine of the watch or serjeant major shall come to visit them , and also that they be furnished with poulder and match , for the discharge of their duties , during the time of their watch and ward : and it is his duty , after that the serjeant major or captaine of the watch haue made their round some time after midnight to walke his round , to see that his centinels do hold good watch in their guet , & that all things bee quiet and peaceable , and no disorders in the towne , and that if alarum be giuen , he giue order to his centinels to take it with al secrecy , without any tumult or noise made , for the ●●act performance whereof , he must haue especiall care that he weaken not his guard , by giuing leaue vnto any of them to be absent from the guard , but vpon iust and lawfull cause , & reason to be alledged : likewise he is to appoint certaine gentlemen for rounders in his company , the which are to make their said rounds from houre to houre , according to the directions of the captaine of the watch . further , about two houres before day , the captaine shall put on his armes , and cause all his company to arme themselues , and so to stand in armes vntill one houre after the discharge of the watch in the morning , which time expired , he shall returne with his company vnto the court of guard , and there , with publike praier , giue vnto almighty god humble thankes and praises , for his mercifull and safe protection that night , and commend himselfe and his , to his no lesse mercifull protection and safegard for the day following . and because that , during the watch , that time is appointed for the exercising of his men , and fashioning them to their armes , he shall set vp a conuenient marke by his court of guard , where hee shall teach his men the exercise of their armes , both for the comely and needfull vse therof , as the offensiue practise against their enemies , at which marke his men shall discharge their pieces twice , both morn●ng and euening , at the discharge of the watch , hauing procured from the gouernor some prize of incouragement due vnto him that shall shoot neerest , then he shall file and ranke , & exercise his men in such military actions , according vnto such forme and exercise , as he shall receiue from the marshall , not forgetting by the way , that all the courts of guard , and all the members of the watch and ward , are vnder the command of the capt. of the watch . further , the captaine is to make it his especial duty to haue religious and manly care ouer the poore sick soldiers or labourers vnder his command , for which cause he shall visite such as are sick , and prouide so that they bee attended , their lodgings kept sweet , and their beds standing the same heigth from the ground which is prouided for in the publique iniunctions , as likewise hee shall call for such things for them out of the store , or from the phisitions or surgeons chest , as the necessitie of their sicknesse shall require . further he is to know , because we are not onely to exercise the duty of a souldier , but of the husbandman , and that in time of the vacancie of our watch and ward wee are not to liue idely , therefore the captaine sending his serieant to the serieant maior for the word , shall likewise giue in charge vnto his serjeant to make demand of the serieant major , what seruice , worke , and businesse he hath in charge , from the gouernor , to command him and his men to goe vppon him the next morning , after notice whereof , he shall so prouide , that he and his men be ready at the relieuing of the morning watch , the drum summoning him there-vnto to effect the same , for which he shall bring ●is men vnto the place of armes , by the maine court of guard , where the serjeant major , or the captaine of the watch , shall conduct them to the place of the subsisting businesse , prouiding them such labouring and needfull instruments or tooles , as the worke for the present shall require , in which worke the captaine himselfe shall do exceeding worthily to take paines and labour , that his souldiers seeing his industry and carefulnesse , may with more cheerfulnesse loue him , and bee incouraged to the performance of the like in that businesse wherevpon they are imploied , contrariwise himselfe taking his case , and inioyning them to toile and worke , may breed both a wearinesse of the businesse in the imployed , and giue a way vnto much hatred , and contempt vnto himselfe . now concerning the tooles and instruments , and the furnishing his soldiers therewith , the captaine shall send his serieant to the store to make demand thereof , and leauing a note vnder his hand for the receipt of the same , thereby charging him-selfe to the redeliuerie of them againe at the finishing of the worke . the companies thus furnished , and being assembled in the place of armes , the serieant maior or captaine of the watch , vpon their knees shall make their publike and faithfull prayers vnto almighty god for his blessing and protection to attend them in this their businesse the whole day after succeeding , which done the serieant maior or captaine of the watch shal extract out of the companies howsoeuer deuided , and deliuer vnto euery maister of the worke appointed , his propper and seuerall ging , to take their wayes therevnto , where the said maisters and ouer-seers of such workes shal be present with them to labour , and hold to labour such his ginge vntill . or ten of the clock , according vnto the coldnesse or heate of the day , at which time he shall not suffer any of his company to be negligent , and idle , or depart from his worke , vntill the serieant maior , or capt. of the watch causing the drum to beat shall fetch them in vnto the church to heare diuine seruice , which beeing effected , euery man shall repaire to his lodging , to prouide himselfe of his dinner , and to ease and rest himselfe vntill two or three of the clocke in the after-noone , acording to the heat and coldnesse of the day , at which time the drumme beating , the capt : shall againe draw forth his company vnto the place of armes as a foresaid , to bee disposed of as before vppon their worke vntill fiue or six of the clocke , at which time the drumme beating as before , at the command of the sarjeant maior or capt. of the watch , they shal be by one of them brought in againe vnto the church to euening prayer , which beeing ended they shall dismisse the company ; those that are to set the watch , with charge to prepare their armes , the others vnto their rests and lodgings . all these duties the captaine must not be ignorant nor negligent to put in execu●ion , as being duties which will be exactly required at his hands by the marshall , as also so to behaue himselfe that he may be as well beloued as obeyed of his souldiers , that thereby they may as well know , how to obey , as he to command , and that he endeuour by all meanes to conserue his men , as annoy his enemy , & painefully to execute with al diligence such matters as he is inioyned by his superiors , and to haue no apprehension of feare , but of shame and infamie . instructions of the marshall for the better enabling of a lieftenant to the executing of his charge in this present colonie iune the . . when the captaine is present he is to be assisting to his captaine , in prouiding that all directions that are commanded by the superior officer , as well his captain as other , be put in execution , that the company be well and orderly gouerned , and such duties duly and dayly performed as are inioyned by the gouernor or cheife officer ; and likewise that the duties of the inferiour officers or soldiers be no lesse diligently and sedulously discharged , for he being , as is said , a helpe , and aide vnto his captaine , is therefore accountant to and with his captain for such omissions , disorders and neglects , as the company shal be found faulty in . he ought faithfully to informe his capt : of all abuses , disorders , neglects , and contempts that shall happen in the company , of what nature or condition soeuer they bee . if his captain shal at any time demand his opinion in any matter of consequence , he shall faithfully and sincerely deliuer it , but not presume to aduise his capt. vndemanded , vnles it be vpon extraordinary occasiō of present and imminent perill . it shal be his duty in all quarrels , braules , debates , and discontentments of his soldiers to accord and agree them without partiallity , and with the least troubling of his cap. with the same , & if he cannot with his curtesies , and gentle interposition worke them into peaceable agreement , hee shall then acquaint his captaine , and afterwards faithfully put in execution his captaines directions . he ought to traine & exercise the company that they may be expert in the vse of their armes when they shall be commanded to publike seruice . he ought likewise to see that the inferiour officers be duly obei'd the one by the other without singularity or contradictiō , & the soldiers obey thē all in generall , each one according to his place . by his care euery squadron shal haue his armes seruiceable and cleane , and at the setting of the watch that they be prouided of pouder , match , and bullet , for the defence of the guard , and if the company be vnfurnished to aduertise his captaine , or send his serieant to the munition maister , that order may bee presently taken for the supplie thereof . hee shall doe well , if conueniently he may , morning and euening ( or at least once a day ) to present him-selfe before his captaine , to know his commands , and to informe his captaine , of the state of his companie . it shal be his duty to haue care that the company bee ready ( as is exprest in the captaines duty ) to go forth and attend the daily businesse , and publike labour appertayning to the colonie , which shal be comaunded by the chiefe officer , in which hee shall haue a hand in executing , and an eye in ouer-seeing , that euery one take his due paines , and not loyter , and idlely mispend the time appoynted vnto the dispatch of such businesse . hee is to haue a hearty and religious care that the souldiers doe not make breach of the lawes , and duties , diuine , ciuill , or martiall , inioyned them to obserue vpon so necessary reasons and strict penalties , but that he informe , correct and punish to the vtmost of his authority limited , the trespassers of the same , or the omission of any duty whatsoeuer , with the approbation of his captaine . hee is not to make it his least care to ouer-see and take charge of the lodging and bedding of all in generall in his company , that according vnto the publike edict the preseruation of their healths be prouided for , and that one point of slothfullnesse in the common soldier preuented , and met with , of lying vpon or to neere the ground , which neglect in the officer hath bin the losse of many a man. for his order of command and march in the field , and quartering he shal be appoynted the manner thereof by the marshall , when occasion of seruice shall so require , like-wise the order of trayning and exercising his captaines company he shall haue vnder the marshalls hand . hee is amongst other his duties most carefully , like a charitable and wel instructed christian , mercifull and compassionate , make often and daily suruey of such of his company as shal be visited with sicknesse , or wounded by any casualty of warre , gunpoulder , or other-wise , in which hee shall take such order that the lodgings of such as shal be so sicke or hurt , be sweet and cleanely kept , them-selues attended and drest , and to the vttermost of his power to procure either from the store , or the phisition and surgeons chest , such comforts , healps , and remedies , as may be administred and applied vnto them , and to haue care that they be not defrauded of those meanes and remedies which are for them deliuered out of the said store or chests . and for that this officer is in the abscence of his captaine to be called vnto the marshall court as his deputie , for the better inhabling of his iudgement , when his opinion is to be required in the censure of offences and crimes of what quality soeuer , which shal be brought thither to be sentenced , i refer him to the abstract of the lawes in breefe anexed vnto the duty of his capt. instructions of the marshall for the better enabling of an ensigne to the executing of his charge in this present colonie , iune the . . it is requisite for euery soldier to stand vppon his credit and reputation , proposing vnto himselfe that their can be no lesse equall , or to be compared with dishonour , & sure in matters of armes and their execution , what dishonour can bee greater then the losse of the ensigne , for which it ought to be committed to the charge of a right valiant , and well gouerned soldier , who may not leaue nor loose it , but where the losse of his life shall quit him of that duty . so farre as toucheth his command , or gouernment in the company , he is to know that he hath no command where his captaine or lieftenant are present , but in their absence i referre him to the duty of the capt : which he is to execute as religiously , painfully , and circumspectly as the captaine : he beeing answerable vnto his captaine for all defects , neglects , disorders , and contempts of duties , in his company whatsoeuer . in the gouernment of his company he is to be asistant vnto his superiour officers , in teaching and inabling all his inferiours , euery one his perticular duty , with faire perswasion and all gentlenes , and sweetnes of command , and if any thing shall happen , either disorders or neglects of duties , it shall be fit for him to aduertise his superior officers that redresse may be had , for he hath no power of himselfe in their presence to punish , correct , or do any act of executions vpon his companions . when the time of exercise and training shal be of the companie , he shall be there ready and assistant vnto his superiour officer ( if so be it his coulours be not drawne forth ) for the better furtherance of him in the so training , and disciplining of the men . hee shall see all commands of his superior officers put in execution , and not stand ignorantly in defence ( as some haue ) and it is the property of the ignorant so to do , that he is tyed to no other duties , but to the carrying of his coulours . for no inferiour officers duty , whether sargeant or corporalls , but he is to performe and execute ( if they shall be by any disaster , defeate , or visitation of sicknesse disabled personally to discharge it themselues ) being so commanded by his superior officers , during the time of guard , yea the duty of the centinell he is to vndergoe , and from which neither the captaine nor lieftenant are exempted vpon vrgent occasion . in the hapning of any dispute , quarrell , or debate amongst the soldiers , the same being brought to his knowledge , he shall do his best to end and compound , whose authority & perswasions , if they shal not be powerfull enough to reconcile & set at one , he shal then informe his lieftenant , or captaine : that order with the most speed & conuenience , may be taken therein . he shall hold it his duty to visit the sick or hurt in his company , and to his power of them take the same care , and make the same charitable prouision for , as is inioynd both the captaine and lieftenant . it is his duty to command the corporalls to bring their squadrons to his lodging , who shal conduct them to his lieftenant , and they both conduct them to their captaine , at the beating of the drum , whither for any manuall labour and worke , for the colony , or whither to bee lead vnto the church at any time to heare diuine seruice . he is to visit the armes of the company , and at the setting of the watch to take care , and so at all time , that they be not vnseruiceable , and if any want bee then of ma●ch , poulder , or bullet , or what else defect , hee is to aduertise his superior officers , that they may then and at all other times bee supplied and amended . to bee breefe hee is an assistant to the lieftenant in the same nature that the lieftenant is to the captaine , and may not by any meanes intrude into the command of the one or other , they being present . in the absence of the captaine , and lieftenant ( when hee is then to bee captaine of the watch ) i referre him to the duty of the sayd captayne of the watch . for his order of march , and flying of his collours , and his carriage in the field , and vpon seruice , he shal bee ordred and instructed by word of mouth from the marshall , when occasion shal be offered . thus mutch is needfull for him to know touching his command , and his carriage to his officers and company , so far forth as hee and they are soldiers , and as the necessity of this present state and condition which we are in doth require . but concerning the publike and dayly manuall businesse which appertaine to our setling there as planters of a col●nie , he is to make it his duty , to be a diligent not onely ou●r-seer , but labourer , himselfe accompanying therein , and seconding the example of his captaine , and industrious lieutenant , that the necessary and daily taskes of such workes and husbandry ( without which we cannot here keepe footing , nor possibly subsist ) may be in due time accomplisht and brought to passe . instructions of the marshall for the better enabling of a serjeant to the executing of his charge in this present colonie , iune the . . that captaine who shall dispose of a h●lbert , by vertue whereof a serjeant is knowne , ought to make choise of a man well approoued , that hath passed the inferior grades of a resolute spirit , quick apprehension , and actiue body , for it is a place of great paines and promptitude , and that serjeant who will be able to execute his duty in sinceritie and vprightnesse , must not be slack to punish where it is deserued , nor ouer rash to abuse his authority , vnbefitting an officer of such moment . this officer hath in the absence of his superior officers the command of the company , to see them doe their duties , and obserue lawes and orders in all things , and punishment of them by his halbert , or otherwise in his discretion , for defect or negligence in any part of order . this officer is to attend vpon the serjeant major for the word vpon the shutting in of the ports , at the gouernors lodging or place of armes , according as the serjeant major shall appoint , then he is to giue the word to his captaine , lieftenant , and ensigne , and vnto his corporall or corporalls hauing the guard . hee must see the soldiers of his company furnished and prouided with munition , as shotte , poulder , and match , at the setting of the watch . hee is to call , or cause to bee called the corporalls roule , to see who are absent or negligent in the discharge of their duties . hee is to see each souldiers armes cleanly kept , and seruiceable , and if default be , he is to reprooue the corporall for his negligence in the ouer-sight of that dutie , and to punish the souldier . hee must see the souldiers practise their armes , and therefore it is requisite that he know the vse of all sorts of armes himselfe . if the watch be set by squadrons , he shall leade that squadron , that is to watch to the parado , and there draw billets for his guard , and from thence lead them to the guard . he shall see the setting out of the centinels , and after shall haue care that silence and good order be kept vpon the guard , and that no man depart from the guard without the leaue of him , or his corporall , and that no man be absent aboue one halfe houre , hauing a special regard that hee weaken not his guard , by giuing leaue vnto aboue two at a time to be absent , least he disable himselfe in the performance of that duty of trust and charge which is committed vnto him of the guard . hee shall see that his corporall or corporals , do put his or their squadrons into armes , two houres before the relieuing of the watch , who shall so abide in armes , at least one whole houre after . if the watch be set by whole companies , it is his duty to place euery souldier in his order , and to see them march in ranke and file , and himselfe being eldest serjeant to march vpon the right point in the vaunt-guard : if he be the yongest he is to march vpon the left point in the rere-ward , each taking care of halfe of the company , vnlesse when more companies march together , they be appointed any other place by a superior officer . when the serjeant is appointed to lead out any shot , he shall goe vpon the side of the vtmost ranke , and see that they take their leuell , & giue fier , and do all things with comlinesse and leisure , & so likewise in the retrait . a serjeant of each company , presently after the discharge of the watch shall bee in the place of armes , or market place , to attend the captaine of the watch to the opening of the ports , that they may be imploied by him , for the discouery without the forts , of any ambushes or attempts of the enemy , with such guard as hee shall appoint them , the captaine of the watch hauing caused all those of the towne , about , to go forth , to forbeare and stay vntill the said serjeants returne , which serjeants are to command those that are comming in , to stay vntill those in the towne are comming forth , & then they shal discouer right forth before the port , and to both sides of the port , so farre vntill the discouerers of the other forts meete where they end ; the discouerers being returned , those of the towne shall be suffered to passe out leisurely , & after those being without shal come in as leisurely , without throng or crowd , that they be the better discerned by the guard what they are . the ports beeing open , the serjeants shall returne to their guards , where they shall instruct their souldiers in the practise of their armes , and shall shew them the ready vse of them , and doe their indeauours by their best meanes , to incourage the towardly , and instruct the ignorant . if vpon his guard , in the absence of his superior officer , any soldier of his guard shall offend , hee shall eyther punish him by his halbert , or if the qualitie of the offence so deserue he shall disarme him , and keepe him prisoner vpon the guard , vntill the watch bee releiued , and then hee shall bring him to his superior officers , that he may receiue condigne punishment according to the condition of his offence . the serjeant ought to know euery souldier , and to take notice of their particular lodgings , and to make it a point of his duty to see that they keepe their lodgings cleane , and that their beds doe stand a yard about the ground , to haue an eye into their diet , their thriftinesse and conuersation , to aduise them to the best , whereof he is to make report vnto the captaine or chiefe officer , that they may receiue estimation for good , and punishment for euill behauiour . he is to informe himselfe of the sick , or hurt , in the company , and to visit them once a day , and to inquire whether they bee not defrauded by the phisitions and surgeons , of such necessary helpes as are deliuered vnto them , for their preseruations and recoueries , and to informe his captaine of the negligence and abuse of such , who should in that case deale vniustly with them that their dishonesty may receiue due punishment . he is likewise to addresse himselfe vnto the serjeant major , and store-maister , for the supplying of his company with munition , and victuals , vpon any occasion : and concerning the munition , he is to haue a principall care , that the souldier doe not spend it away in vaine , but onely at such times as they are appointed for exercising and training . he is likewise to take notice of all defects and abuses in his company , and to enforme his superiour officers , that they may be redressed , and iustice take place , he shall with great diligence attend the commands of his captaine , and of the serjeant major , and at all times put them in present execution , rebuking such as doe amisse , shewing them their faults , and teaching them by a good example in himselfe , to tread in the way of all ciuilitie and goodnesse . if any debate shall happen betweene souldier and souldier , hee hauing knowledge thereof , shall doe his indeauor to agree , and reconcile them , that it come not to his superior officers , and if through obstinacie hee cannot agree them , hee shall commit them , or informe his superior officers , who may take order therein . he is to prouide that none of the company bee absent when the drum shall call them forth to worke , in which workes he is to be a president himselfe , both by labouring in the same , and calling vpon others to doe the like , he is to goe to the store , to take out such tooles , as are required for the workes in hand , and there to vnder-write vnto the booke of the store-maister , or vnto a note to be filed , thereby charging himselfe to be accountable for the said tooles , when the worke shall be performed , ouer which he is to haue a regard , that they be not neglectfully layed vp , spoyled nor broken without examining by what meanes they came so broken , that the wilfull breaker thereof may receiue punishment , and the said toole or tooles so broken , withall the pieces , he shall bring vnto the store , to shew the same for his better discharge . instructions of the marshall for the better enabling of a corporall vnto the discharge of his duty in this present colonie , iune the . . the corporall is in grade and dignity aboue the priuate souldier , and therefore care ought to bee had in the choosing of this officer , for that it is an office of good account , and by neglect of this duty , many inconueniences may come vpon a camp , towne , or fort , therefore it is fit that hee surmount and excell his inferiors in valour , diligence and iudgment , and likewise in the practise and vse of all sorts of armes , whereby he may the better bee enabled to instruct and teach this squadron committed to his charge . the corporall ought ( hauing the third part of the company giuen him in command ) to sort and assist them in their quartering or lodging , to haue a care that they be cleane and sweet , and that their beds in the same bee laide three foote from the ground , hee is to carry a hand ouer their dye● , thriftinesse , and conuersation , and to aduise and instruct them at all times to demeane themselues as good christians ought to do , and to make report thereof vnto his captaine or chiefe officer , that from them they may receiue credit and estimation for good behauiour , and punishment and disgrace for their misdemenours . hee is to haue a speciall care of their armes to see them duly furnished and kept in order , and when the drum beateth to bee in a readinesse at the colonies ; and if any bee absent , hee shall make it knowne to his serjeant or superior officer . when he marcheth , hee is to lead a file , hee ought to bee daily conuersant with his little company committed vnto his charge , and the company beeing in the field , to lodge with them , and prouide to his power for their wants , and to instruct and teach them how to vse and handle the weapon they carry : likewise , to remember well how each one is armed and appointed when hee receiueth him into charge , then to see no part of his furniture or armes bee broken or spoiled , but to haue care that they bee preserued cleane and seruice-able . hee ought to haue a vigilant eye vpon the good behauiour of his company , not suffering them to vse any vnlawfull and prohibited games , nor that they giue them selues to excesse of drinking , surfitting and ryot , but that they bee conformable to all the martiall lawes : that they likewise make spare of their pay or victuals , the better to furnish themselues in comely and decent manner , with apparell and other necessaries fitte and requisite for them , wherein the corporall ought to vse his vtmost endeauour . in presence of his captaine , or superior officer , hee is to take vppon him no more then the condition of his office doth require , but diligently to attend and execute what they shall command , that his example may serue for a president to the rest of his squadron . at the setting of the watch hee is to see that they be furnished with poulder , bullet and match , and that their armes be seruiceable and soldier-like . if the company watch by squadrons , he and his squadron shall be brought by the serjeant vnto the place of watch , and from him receiue the word and directions , in what maner , and where he shall place his centinels , whether by day or night● which hee is to see performed . when the corporall with his squadron shall bee brought to the place where he and they shall watch , he and they must prouide eft-soones for wood for fyring vpon the guard , that beside for their owne comfort , they may haue fire ready alwayes vpon the guarde to light their match vpon any proffered occasion . hee is to cause silence to bee kept vppon the court of guard , and to gouerne the watch , so that the labour bee equally diuided of his squadron , either in watch , worke , or seruice , and to take care in all respects , that they performe the duties of good and honest soldiers . his centinels being placed , hee is to let none passe without the word , vnlesse it bee the captaine of the watch , or serjeant major , vnto whom ( after hee shall haue perfect knowledge of them , ) hee is to deliuer the word at their first round , but before the deliuery of the word , hee shall take the captaine of the watch and serjeant major alone within his guard , the corporall beeing accompanied with halfe a dozen of shot with match in cock , to haue an eye ouer the rest of the rounders that accompany the captaine of the watch or sarjeant major , and not to suffer the rounders to come within the centinell , & if at any time of the night after their first round , the serjeant maior or captaine of the watch shall goe their round , as it is their duties , then they are to giue the word to the corporal , vnlesse they mistrust the doubt the memory of any corporall : the corporall is not to goe out single to take the word of any round but to take two , or three , or more of his guard with him , and if it shal be a round of more then two , then hee shall ●●●w out all his men in his guard in their armes , the corporall shall at no time ( to receiue the word ) passe beyond the centinell , but make him that hath the word to come forward within the centinell , and shall cause the rest to stand without the centinell , and those that are out by the corporall for his guard shall keepe their eies and armes in a readinesse ouer him that is to giue or take the word of the corporall , vntill such time as the corporall be satisfied of him . he must make good his guard vntill he bee releiued the which hee shall the better doe if hee keepe his men together vpon the guard ; he must visite the centinels sometimes vnawares to them , and must be ready to go to them at the first call . hee shall put his men in armes two houres before the discharge of the watch , so to remayne one houre after . hee shall warne his centinells to make noe alarum but vpon iust cause , and then with as much silence as may be , and in like silence hee must aduertise the captaine of the watch , and the next guards vnto him , and so without notice or signe of contusiō from one guard vnto an other . if vpon his guard any of his soldiers shal misdemeane himselfe , or offend in any of the publique lawes , diuine , ciuill , or martiall , he shall bring him to his superior officer , then vpon the guard , that he may receiue punishment . his duty is to prouide that none of his squadron , be absent , when the drumme shall call to any labour , or worke , or at what time soeuer they shall be commanded there vnto for t●●●eruice of the collonie , in the performance of which said workes he is to be an example of the rest of his squadron by his owne labouring therein , and by encouraging and calling vpon others at any time negligent , idle and slothfull , that thereby giuing encoraging to his superior officers he may be held by them worthy of a higher place . hee must likewise receiue such instruments and tooles , as spades , shouels , axes , &c. imployed in the worke , from his sarjeant to dispose , and to deliuer the same vnto the labourers with all the care he may , to his vtmost , that none of them be broken , lost , or wilfully spoiled , without drawing the parties so breaking , loosing and wilfully spoyling the same into punishment ; and after the worke done he shall gather the said tooles in againe and re-deliuer them vp vnto his sargeant , all , and the same , who is to be accountable vnto the maister of the store vnto whose booke he hath vnderwritten for the receipt of them . and by reason he is well knowing of euery man in his squadron , and thereby cannot but misse the pretence of any man from any duty whatsoeuer , sooner then haply the superiour officers may , his care shall bee to attend his squadron to the vsuall workes and day-labours , and vnto frequent prayers , and the deuine seruice at all times , and vppon all the dayes in the weeke , giuing due notice vnto his superiour officer , of the neglect of eyther duties in their kinde ●hat reformation may follow . hee shall not suffer any gaming , heare any prophane lewd speeches , swearing , brawling , &c. or see any disorder whatsoeuer vppon his court of guard , or else-where , without present information giuen thereof vnto his superiour officer , that the offenders may bee duly punished . hee shall take notice of all bands and proclamations published by the generall , procuring a copie of the same from the prouost marshall , the same duly to bee read vnto his squadron , that they may bee made the perfecter in the knowledge of them , and thereby learne the better to forbeare the trespassing in forbidden things , remembring the penaltie of the same , and execute things commanded , considering the reward thereof , whether in campe , towne or forte , field or garrison . hee shall read , or cause to bee read , the souldiers dutye , euery time of his guarde in some conuenient time and place , during the same , thereby to remember them the better of their generall duties . instructions of the marshall for the better enabling of a priuat soldier , to the executing of his duty in this present colonie . iune . . it is requisite that he who will enter into this function of a soldier , that he dedicate himselfe wholly for the planting and establishing of true religion , the honour of his prince , the safety of his country , and to learne the art which he prosesseth , which is in this place to hold warre , and the seruice requisite to the subsisting of a colonie : there be many men of meane descent , who haue this way attained to great dignity , credit , and honor . hauing thus dedicated himselfe with a constant resolution , he ought to be diligent , carefull , vigilant and obedient , and principaly to haue the feare of god , and his honor in greatest esteeme . in making choyse of his familiar accquaintance , let him haue care that they be of religious and honest conditions , not factious nor mutenous murmurers , nor euill languaged and worse disposed persons : his choyse beeing made he is to carry him selfe discreete , temperate , quiet and friendly , withholding himselfe from being to lauish of speech , for such as take liberty vnto themselues to talke licentiously , to slander , raile , and backbite others , do vsually make bankrout of their friends , of estimation , and of their owne peace and quiet of conscience . he must be carefull to serue god priuately and publiquely ; for all professions are therevnto tied , that carry hope with them to prosper , and none more highly then the souldier , for hee is euer in the mouth of death , and certainly hee that is thus religiously armed , fighteth more confidently and with greater courage , and is thereby protected through manifold dangers , and otherwise vnpreuentable euents . he must bee no blasphemer nor swearer , for such an one is contemptible to god and the world , and shall be assured to be found out and punished by the diuine iustice : whereof we haue instant examples . he must refraine from dicing , carding , and idle gaming : for common gamsters , although they may haue many good parts in them , yet commonly they are not esteemed according to their better qualities , but censured according to their worst , procuring enemies , questions , brawles , and a thousand following inconueniences . he must not set his minde ouer-greedily vpon his belly , and continuall feeding , but rest himselfe contented with such prouisions as may bee conueniently prouided , his owne labour purchase , or his meanes reach vnto : aboue all things he must eschew that detestable vice of drunkennesse ; for then a man is not apt nor good for any thing , and by that beastly disorder , many great armies haue miscarried , and much disquiet and tumults raised in campe , and ciuill townes , wherevpon doth fail the sword of iustice vpon their necks , which in that case they haue compelled to be drawne . chastitie is a vertue much commended in a souldier , when vncleanesse doth defile both body and soule , and makes a man stinke in the nostrils of god & man , and laieth him open to the malice & sword of his enemy , for commonly it makes a man effeminate , cowardly , lasie , and full of diseases , & surely such who haue vnlawful women stil trudging about with thē , or in whom custome hath taken away the sence of offending in that kind , commonly come to dishonorable ends . he is tyed in his entring or inrowling into any company , to take his oath of faithfulnesse , and sincere seruice to his prince , generall and captaine : to be conformable to the lawes prouided for the aduancement of the intended businesse , and for the cherishing of the good therein , and punishment of the euill . he must be true-hearted to his capt. and obey him and the rest of the officers of the campe , towne , or fort , with great respect , for by the very oath which he taketh hee doth binde himselfe and promise to serue his prince , and obey his officers : for the true order of warre is fitly resembled to true religion ordeined of god , which bindeth the souldier to obserue iustice , loyaltie , faith , constancie , patience , silence , and aboue all , obedience , through the which is easily obteined the perfection in armes , and is as a meanes to atchieue great enterprises , though neuer so difficult : certainly , who wanteth the vertue of obedience and patience , though neuer so valiant otherwise , yet is he vnworthy of the same name . a souldier must patiently suffer the aduersities and trauailes which do fall out in the courses and chances of warre : he must not be ouer-greedy , nor hasty of his pay , albeit he may stand in some want thereof , but must with a chearfull alacrity shew his constancy , auoyding by al possible meanes , rebellions and mutenies , which most vpon such pettish occasiones are runne into : by no meanes must hee bee a pertaker with such mutiners , for the end of such is sharpe and shamefull death . if in skirmishes incounters , or surprise of towne the enimies be vanquished , let him set all his care and diligence in execution of the victorie with his armes , & not in rifling and spoiling for trash , for so he shal be accounted an vnruly freebooter , beside innumerable are the disorders and mischefes which do happen by rauenous pillagers , many times to the dishoner of the action , and to the losse of their liues , therfore he shall pursue the victorie vntil the enimy be wholy ended & the place fully caried and possessed , the guards placed , and liberty granted from the chiefe commander to sack & spoile , wherein by any meanes let him auoid murther and crueltie , and violation of women , for those are odious to god and man , rather in such cases let him shew himselfe pittiful and mercifull vnto the vanquished , rather defending the sillie women and children then procuring their hurt and damage , for in so doing it will be right acceptable to god and his commanders . such armes as he is apointed to serue with , whither musket , caliuer or target , let him be very dilligent to vse all his industrie to excell in the vse of them , for therby he may conserue his owne life and his fellows , for the which purpose he shall call vpon his serjeant and his corporall to instruct him therein , vntill hee come vnto perfection . he must learne the seuerall sounds of the drumme , whereby hee may obey that which he is commanded ; for the drum often-times is the voice of the commander , hee shall carefully note and marke the signes made by the captaine and officers , without talking or pratling vnto his next companions : for that is vnbesitting a souldier , and makes him vncapable to heare what is giuen in command . in skirmishes and incounters he shal be resolute and valiant , for that souldier which is timorous and fearfull can neuer bring his heart to any hearty enterprise , nor dareth to attempt any hotte , bold , or audacious charge or seruice , by reason of his cowardly spirit and feare . hee must bee carefull to bee alwayes vigilant and ready , beeing placed for a centinell , or in the court of guard , where he shall not put of his armes , vntill hee haue leaue from the captaine : for therein consisteth the security of the campe , towne , or fort. hee shall doe well to keepe his fidelity vnspotted to his prince and generall , although his sufferings may bee intolerable and infinite , and shall not flye vnto the enemy : for to bee branded with infamie of a traytor is a fowle and odious offence , and rigourously punished among all nations , and neuer yet traitor came to good end ; of which we haue examples infinite . hee must not bee shifting from company to company , but serue in the company where hee first began , and if at any time hee shall depart for his preferment , let him demand the good liking of his captaine , who if hee shall denie it him in such a case , it shall bee imputed no offence in him to appeale vnto the generall or chiefe officer . at the sound of the drumme , for the setting of the watch with his arms being fix and seruiceable he shall repaire to his colours , and it shall be commendable in him by the way to call vpon his corporall , so that all the squadron meeting together at the corporals lodging may attend the corporall vnto the colours , and if he be vnprouided of munition he shall acquaint his corporall therewith , who shall see him furnished . when the company or squadron march to the guard he shall hold that order in which he was placed by his serjeant , marching in a comely and gracefull manner , and being armed at the place of guard he shall pose his armes according vnto the corporalls direction , and behaue himselfe in all his actions as befitting a religious soldier in that holy place of guard , without doing any act of prophanesse , disorder , or ought els , tending to the pollution of the same either in word or deed . when his corporall shall appoint him forth for centinell , he shall shoulder his peice , both ends of his match being alight , and his peice charged , and p●ined , and bullets in his mouth , there to stand with a carefull and waking eye , vntill such time as his corporall shall relieue him , and to let no man passe nor come vp to him , but to force him stand , and then to call his corporall . he must harken diligently and looke well about him from his place of centinell for the approch of any about the camp , towne , or fort , or the dich thereof , or if he heare any noyse , to call his corporall to aduertise him of the same . he must haue a speciall care that he sleepe not vpon his centinell , nor set his armes out of his hands : for therein he maketh himselfe subiect for any passenger by to take away his life , beside the generall inconuenience that may come vpon the camp , towne or fort. his corporall hauing releiued him and brought him to the guard , he shall do well to read the lawes and ordinances for the gouernment of the camp , towne , or fort , constituted and prescribed by the marshall , the better to enable his memory for the exact obseruance of those lawes whereby he shall not only auoyd the trespassing against the same , but also get the reputation of a well ordered and gouerned soldier . such gentlemen or others , as are appointed by their captaine for rounders , and approoued by the serjeant major or captaine of the watch , amongst them those rounders that are appointed to attend the captaine of the watch on his guard are to receiue their directions from him , as likewise those of the companies vpon the guards for their order of rounding , according to the time of the night in what hower they shal make their rounds , the rounders from the guard , from the captaine of the watch , are to visit the centinells , and courts of guards , making their rounds vpon the rampart , harkning and listening and looking ouer into the ditches , if they can heare or see , or discouer any troopes , or men neere the town , taking care besides that there be good watch kept both by the centinells , and vpon the court of guard , and if any noyse or tumult be neere the rampart , they may step downe and informe themselues of it , and bring the trespassers to the next guard , committing them there vntill after the round made they haue acquainted the capt. of the watch of such disorders . the rounds frō the ports are to round the streets to take in charge that no disorders , breaking vp , or fiering of houses of y c store , or roberies , magazin , riots or tumult in taphouses , or in the streetes , or in priuat houses at houres vntimely be committed , and the offenders to bring to the next guard , and to informe the captaine of the watch ; all rounders are to be subiect and obedient vnto the captaine of the watch and his commands during his time of watch . two houres before day he must be ready in arms with his peice charged & prouided , & a match a light at both ends and bullets in mouth , there to attend the command of the corporall vntill further directions be giuen , and at the time appoynted for the exercise of his armes , he shall be tractable and obedient to his officers executing such commands as they shall impose vpon him , that he may be the better trained and inhabled to offend his enemy , and to defend himselfe . he shal be carefull to obserue al words of command , postures and actions , according to the order of training published by the marshall . the exercise being ended and the prisewon and lost he shall pose his armes at the court of guard , and ther giue diligent atendance that he be at no time absent from his guard , aboue one houre , without leaue from his officer , and that not without leaue of his officer . the watch being relieued and he free from the guard he is to dispose of the rest of the time for his owne perticular vse vntill next morning at the discharge of the watch : when at the call of the drumme , he shall attend at his corporalls lodging ther to receiue such instrument , or toole as the busines of that day shall require , from whence he shall march to the place of armes or maine court of guard ; there to be disposed of by the captaine of the watch for that day seruice of the colonies , in which he shall doe his best indeauour like a painfull and industrious seruant of the colonies to discharge his duty for the furtherance of his worke , and incouragment of such who shall be the more stirred vp by his example of goodnes , to the imitation of the like : and thus doing , he shall giue cause vnto the generall , vnto his captaine , and chiefe officers , to take notice of his painfulnesse , who may according to his desert in time giue him aduancement for the same . he shall continue at his worke vntill the drumme beate , and that his captaine , his officers or ouerseers of the worke , giue order unto a cessation for the time , and for the same purpose attendeth to lead him in , whom he shall orderly and comely follow into the camp , towne or fort , by his said captaine , officer or ouerseer him meeting , to be conducted vnto the church to heare diuine seruice , after which he may repayre to his house or lodging to prepare for his dinner , and to repose him vntill the drumme shall call him forth againe in the afternoone , when so ( as before ) he shall acompany his chiefe officer vnto the field , or where els the work lieth , and there to follow his easie taske vntill againe the drumme beat to returne home : at which time according as in the forenoone , he shall follow his cheife officer vnto the church to heare diuine seruice and after dispose of himselfe as he shall best please , and as his owne businesse shall require ; with this caution carefully to preserue the toole or instrument with which he wrought to serue his turne againe the next day as he will answere the contrary vpon the perill prescribed concerning his order of march and carriage in the field when occasion shall present it selfe , he will easily acquire and learne the same by experience , prouided that he be carefull to march , ranke , and file , and not straggle , or be disobedient vnto proclamations of the general for therin consisteth the princicipall part of his duty , vntill when i leaue him with this caueat , that he diligently marke , consider and remember the orders , which the higher officers do obserue , in ordering their files and rankes , and surueying their squadrons of footmen , and to the placing of the great artillery in the march and setled campe , and the plot of the quartering , according to the disposition of the ground where the campe shall then be , with the manner of entrenching , placing of ordinances & guards for the defence of the same , that in the knowledge and execution of these duties , the generall hauing vnderstanding of his promptitude and diligence may conferre vpon him , and call him vnto place of preferment and commaund . that there be no neglect found in him , in his marching to the guard or field , and that in the same he doe not forget or leaue behinde him any peece or parcell of his armes appointed him by the marshall for his owne defence , or offence of the enemie . a praier duly said morning and euening vpon the court of guard , either by the captaine of the watch himselfe , or by some one of his principall officers . merciful father , and lord of heauen and earth , we come before thy presence to worship thée in calling vpon thy name , and giuing thankes vnto thée , and though our duties and our verie necessities call vs héereunto : yet we confesse our hearts to be so dull and vntoward , that vnlesse thou be mercifull to vs to teach vs how to pray , we shall not please thée , nor profit our selues in these duties . wée therefore most humbly beséech thée to raise vp our hearts with thy good spirit , and so to dispose vs to praier , that with true seruencie of heart , féeling of our wants , humblenesse of minde , and faith in thy gracious promises , we may present our suites acceptably vnto thée by our lord and sauiour iesus christ. and thou our father of al mercies , that hast called vs vnto thée , heare vs and pitie thy p● re seruants , we haue indéed sinned wonderously against thée through our blindnesse of mind , prophanesse of spirit , hardnesse of heart , selfe loue , worldlinesse , carnall lusts , hypocrisie , pride , vanitie , vnthankfulnesse , infidelitie , and other our natiue corruptions , which being bred in vs , and with vs , haue defiled vs euen from the wombe , and vnto this day , and haue broken out as plague sores into innumerable transgressions of all thy holy lawes , ( the good waies whereof we haue wilfully declines ) & haue many times displeased thée , and our own consciences in chusing those things which thou hast most iustly & seuerely forbidden vs. and besides all this wee haue outstood the gracious time and m●anes of our conuersion , or at least not stooped and humbled our selues before thée , as wee ought , although we haue wanted none of those helpes , which thou vouchsafest vnto thy wandering children to fetch them home withall , for we haue had together with thy glorious workes , thy word calling vpon vs without , and thy spirit within , and haue béene solicited by promises , by threatnings , by blessings , by chastisings , & by examples , on all hands : and yet our corrupted spirits cannot become wise before thée , to humble themselues , and to take héede as we ought , and wish to do . wherefore o lord god , we do acknowledge thy patience to haue béene infinite and incomparable , in that thou hast béen able to hold thy hands frō reuenging thy self vpō vs thus long , & yet pleasest to hold open the doze of grace , that we might come in vnto thée and be saued . and now o blessed lord god , we are desirous to come vnto thée , how wretched soeuer in our selues , yea our very wretchednesse sends vs vnto thée : vnto thée with whō the fatherlesse , and he that hath no helper findeth mercy , we come to thée in thy sons name not daring to come in our owne : in his name that came for vs , we come to thée , in his ●●diation whom thou hast sent : in him o father , in whom thou hast professed thy selfe to be well pleased , we come vnto thée , and doe most humbly beséech thée to pittie vs , & to saue vs for thy mercies sake in him . o lord our god our sins haue not outbidden that bloud of thy holy son which speaks for our pardon , nor can they be so infinite , as thou art in thy mercies , & our hearts ( o god thou séest them , ) our hearts are desirous to haue peace with thée , and war with our lusts , and wish that they could melt before thée , and be dissolued into godly mourning for all that filth that hath gone through them . and defiled them . and our desires are now to serue and please thee , and our purposes to endeuour it more faithfully . we pray thée therefore for the lord iesus sake seale by in our consciences thy gracious pardon of all our sinnes past , and giue vs to féele the consolation of this grace shed abroad in our hearts for our eternall comfort and saluation : and that we may know this perswasion to be of thy spirit , and not of carnall presumption , ( blessed god ) let those graces of thy spirit , which doe accompany saluation , be powred out more plentifully vpon vs , encrease in vs all godly knowledge , faith , patience , temperance , méekenesse , wisedome , godlinesse , loue to thy saints and seruice , zeale of thy glory , iudgement to discerne the difference of good & ill , and things present which are temporary , and things to come which are eternall make vs yet at the last wise-hearted to lay vp our treasure in heauen , and so set our affections more vpon things that are aboue , where christ sits at thy right hand : and let all the vaine and transitory inticements of this poore life , appeare vnto vs as they are , that our hearts may no more be intangled and bewitched with the loue of them . o lord , o god , our god , thou hast dearely bought vs for thine owne selfe , giue vs so honest hearts as may be glad to ●éelt the possession of thine owne . and be thou so gracious , as yet to take them vp , though we haue desperately held thée out of them in times past , and dwell in vs , and raigne in vs by thy spirit , that we may be sure to raigne with thée in thy glorious kingdome , according to thy promise through him that hath purchased that inheritance for all that trust in him . and seeing thou doest so promise these graces to vs , as that thou requirest our industrie and diligence in the vse of such meanes as serue thereto ( good lord ) let vs not so crosse our praiers for grace , as not to séeke that by diligence , which we make shew to séeke by prayer , least our owne waied condemne vs of hypocrisie . stirre vs vp therefore ( o lord ) to the frequent vse of prayer , to reading , hearing , and meditating of thy holy word , teach vs to profit by the conuersation of thy people , and to be profitable in our owne , make vs wise to apprehend all oportunities of doing or receiuing spirituall good , strengthen vs with grace to obserue our hearts and waies , to containe them in good order , or to reduce them quickly , let vs neuer thinke any company so good as thine , nor any time so well spent , as that which is in thy seruice , and beautifying of thine image in our selues or others . particularly we pray thée open our eies to sée our naturall infirmities , and to discouer the aduantages which satan gets thereby . and giue vs care to striue most , where we are most assaulted and endamaged . and thou o god , that hast promised to blesse thine owne ordinances , blesse all things vnto vs , that we may grow in grace & in knowledge , and so may shine as light in this darke world , giuing good example to all men , and may in our time lie downe in peace of a good conscience , embaulmed with a good report , and may leaue thy blessings entailed vnto ours after vs for an inheritance . these o father , are our speciall suits , wherein wee beséech thee to set forth the wonderful riches of thy grace towards vs , as for this life , and the things thereof , we craue them of thée so farre as may be for our good , and thy glory , beséeching thée to prouide for vs as vnto this day in mercy . and when thou wilt humble or exalt vs , gouerne vs so long , and so farre in all conditions and changes , as we may cleane fast vnto thee our god vnchangeably , esteeming thée our portion , & sufficiēt inheritance for euermore . now what graces we craue for our selues , which are here before thy presence , we humbly begge for all those that belong vnto vs , and that by dutie or promise wee owe our praiers vnto , beséeching thée to be as gracious vnto them , as vnto our own souls , and specially to such of them , as in respect of any present affliction or temptation may be in speciall néede of some more spéedie helpe or comfort from thy mighty hand . yea our lord god we humbly desire to blesse with our praiers the whole church more specially our nation , and therein the kings maiestie our soueraigne , his quéene and royall seede , with all that be in authoritie vnder him , beséeching thée to follow him and them with those blessings of thy protectiō and direction , which may preserue them safe from the malice of the world , and of satan , and may yeeld them in their great places faithfull to thée for the good of thy people , and their owne eternall happinesse and honour . we beséech thee to furnish the churches with faithfull and fruitfull ministers , and to blesse their liues and labours for those mercifull vses , to which thou hast ordained them , sanctifie thy people o god , and let them not deceiue themselues with a formalitie of religion instéed of the power thereof , giue them grace to profit both by those fauours , and by those chasticements which thou hast sent successiuely or miredly amongst them . and lord represse that rage of sinne , and prophanesse in all christian states wh●●h bréeds so much apostacy and defection , threatning the taking away of this light from them : confound thou o god all the counsel and practises of satan and his ministers , which are or shall be taken vp against thée , and the kingdome of thy deare sonne . and call in the iewes together with the fulnesse of the gentiles , that thy name may be glorious in al the world , the daies of iniquity may come to an end , and we with all thine elect people may come to sée thy face in glorie , and be filled with the light thereof for euermore . and now o lord of mercie , o father of the spirits of all flesh , looke in mercie vpon the gentiles , who yet know thée not , o gracious god be mercifull to vs , and blesse vs , and not vs alone , but let thy waies be knowne vpon earth , & thy sauing health amongst all nations : we praise thée , and we blesse thée : but let the people praiss thée o god , yea let all the people praise thée , and let these ends of the world remember themselues and turne to thée the god of their saluation . and séeing thou hast honoured vs to choose vs out to heare thy name vnto the gentiles : we therefore beséech thee to blesse vs , and this our plantation , which we and our nation haue begun in thy feare , & for thy glory . we know o lord , we haue the diuel & all the gates of hel against vs , but if thou o lord be on our side , we care not who be against vs. o therfore vouchsafe to be our god , & let vs be a part and portion of thy plople , cōfirme thy cauenāt of grace & mercy with vs , which thou hast made to thy church in christ iesus . and seeing lord the highest end of our plantation here , is to set vp the standard , & display the banner of iesus christ , euē here where satans throne is lord , let our labor be blessed in laboring the conuersiō of the heathē . and because thou vsest not to work such mighty works by vnholy means , lord sanctifie our spirits , & giue vs holy harts , that so we may be thy instrumēts in this most glorious work : lord inspire our souls with thy grace , kindle in vs zeale of thy glory : fill our harts with thy feare , & our tongues with thy praise , furnish vs all from the highest to the lowest with all gifts & graces néedful not onely for our saluation , but for the discharge of our duties in our seuerall places , adorne vs with the garments of iustice , mercy , loue , pitie , faithfulnesse , humility , & all vertues , & teach vs to abhor all vice , that our lights may so shine before these heathen , that they may sée our good works , & so be brought to glorifie thée our heauenly father . and seeing lord we professe our selues thy seruants , & are about thy worke , lord blesse vs , arme vs against difficulties , strength vs against all base thoughts & temptations , that may make vs looke backe againe . and séeing by thy motion & work in our harts , we haue left our warme nests at home , & put our liues into our hands principally to honour thy name , & aduance the kingdome of thy son , lord giue vs leaue to commit our liues into thy hands : let thy angels be about vs , & let vs be as angels of god sent to this people . and so blesse vs lord , & so prosper all our procéedings , that the heathen may neuer say vnto vs , where is now your god : their idols are not so good as siluer & gold , but lead & copper , & the works of their own hands . but thou iehouah art our god , & we are y e works of thy hands : o then let dagon fall before thy arke , let satan be confounded at thy presence , & let the heathen sée it & be ashamed , that they may séeke thy face , for their god is not as our god , thēselues being iudges . arise therfore o lord , & let thine enemies be scattered , & let them that hate thée ●lie before thée : as the smoke vanisheth , so let satan & his delusions come to nought & as war melteth before the fire , so let wickednes , superstitiō , ignorance & idolatry perish at y e presēce of thée our god. and wheras we haue by vndertaking this plantatiō vndergone the reproofs of the base world , insomuch as many of our owne brethren laugh vs to scorne , o lord we pray thée fortiffe vs against this temptation : let sanballat , & tobias , papists & players , & such other amonits & horonits the scum ● dregs of the earth , let thē morke such as helpe to build vp the wals of ierusalem , and they that be filthy , let thē be filthy still , & let such swine still wallow in their mire , but let not y e rod of the wicked sal vpō the lot of the righteous , let not them put forth their hands to such vanity , but let them that feare thée , reioyce & be glad in thée , & let them know , that it is thou o lord , that raignest in england , & vnto the ends of the world . and séeing this work must néeds expose vs to many miseries , & dangers of soule & bodie , by land & sea . o lord we earnestly beseech thee to receiue vs into thy fauour & protection , descr●● vs from the delusions of the diuel , the malice of the heathē , the inuasions of our enemies , & mutinies & dissentions of our own people , knit our hearts altogether in faith & feare of thee , & loue one to another giue vs patience , wisedome & constancy to goe on through all difficulties & temptations , til this blessed work be accomplished , for the honour of thy name , & glory of the gospel of iesus christ : that when the heathē do know thée to be their god , and iesus christ to be their saluation , they may say , blessed be the king & prince of england , & blessed be the english nation , and blessed for euer be the most high god , possessor of heauen & earth ▪ that sent them amongst vs : and heere o lord we do vpon the knees of our harts offer thee the sacrifice of praise & thanksgiuing , for that thou hast moued our harts to vndertake the performance of this blessed work , with the hazard of our person and the hearts of so many hundreds of our nation to assist it with meanes & prouision , and with their holy praiers , lord looke mercifully vpon them all , and for that portion of their substance which they willingly offer for thy honour & seruice in this action , recompence it to them and theirs , and reward it seuen fold into their bosomes with better blessings : lord blesse england our sweet natiue countrey , saue it from popery , this land scour heathenisme , & both from atheisme . and lord heate their praiers for vs , and vs for them , and christ iesus our glorious mediator for vs all . amen . a bakers-dozen of plain down-right queries, harmlesse and honest: propounded to all that expect benefit from this present power. wherein is discovered, the bawling, mercinary, accustomed tricks, querks, and quillets of the learned lying, daggle-tayl'd lawyers, crafty atturneys, and subtile solicitors, &c.. [sic] with a description of the dutch water-rats: and the difference between spanish pieces of eight, and the babies, pupets and quelchoses of france. by george gregorie, gent. gregorie, george, gent. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason e _ ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing g thomason e _ estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; :e [ ]) a bakers-dozen of plain down-right queries, harmlesse and honest: propounded to all that expect benefit from this present power. wherein is discovered, the bawling, mercinary, accustomed tricks, querks, and quillets of the learned lying, daggle-tayl'd lawyers, crafty atturneys, and subtile solicitors, &c.. [sic] with a description of the dutch water-rats: and the difference between spanish pieces of eight, and the babies, pupets and quelchoses of france. by george gregorie, gent. gregorie, george, gent. p. [s.n.], london : printed in the year mdclix. [ ] annotation on thomason copy: "june ". reproduction of the original in the british library. eng law -- england -- early works to . a r (thomason e _ ). civilwar no a bakers-dozen of plain down-right queries,: harmlesse and honest: propounded to all that expect benefit from this present power. wherein i gregorie, george, gent. a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion a bakers-dozen of plain down-right queries , harmlesse and honest : propounded to all that expect benefit from this present power . wherein is discovered , the bawling , mercinary , accustomed tricks , querks , and quillets of the learned lying , daggle-tayl'd lawyers , crafty atturneys , and subtile solicitors , & c.. with a description of the dutch water-rats : and the difference between spanish pieces of eight , and the babies , pupets and quelchoses of france . by george gregorie , gent. london , printed in the year mdclix . a bakers douzen of down-right qveries propounded to all that expect benefit from this present power . i. vvhether the officers of the army were in earnest or in jest , when they re-invested this present parliament in their pristine power ; and will they now own and defend it , having put it upon them ; and may all well-minded people believe for a truth , and not be deceived , but that it may appear the mace is above the sword ? ii. if agreed upon upon all hands , the people of the land have not reason to be satisfied therein by publick declaration , that doubts may be taken away , and all may follow their several imployments without any distraction ? iii. whether a power thus made , finding the law now in force destructive and not for the weale of the people , may not make null the old , and inforce a new law , sutable to the safety and welfare of the nation , that oppression may not be upheld because it is ancient ? iiii. whether can justice truely be said to be had in england at all by the proceedings of our law ; for justice done for any other end than for justice sake ( though many fools are content to buy it ) doth it not plainly prove the seller a knave ? v. whether a multitude of lawes are not the greatest badge of an enslaving people , having alwaies been fomented a numerous sort of governours , either for their own profit or for preferment of their favourites , or satisfying their own boundlesse wills ; whereas right is couched in few words , which reason the foundation of law , the more clearly sees , and sooner decides ? vi . whether is it not most agreeable to reason , that there should be in different judges in every county , which by their vicinity might by report of honest neighbours , know the condition of the cause , as well as from the parties themselves ; and that no daggle-rayl'd lawyer , atturney or other , should plead any cause ( save their own ) for that it is impossible a judge should but loose a great deale of evidence , which is to be perceived in the carriage , countenance , and deportment of the parties themselves , which in a bold brasen-faced , dawling , mercenary , accustomed lying lawyer , shall never be discovered to the most piercing eye upon earrh . vii . whether do not many people of this nation for malice or revenge , make it their common practise to oppresse the poor mans cause the more violently , because they know ( though fools themselves ) they can have a learned lying lawyer , a crafty atturney , a subtile solicitor , if his cause goes to the divil , to follow it for money , whereas admonition from a grave judge seasonably given , may take effect in the party interested in the cause himself : which it never doth in a common pleader , because gift which blinded his eyes , makes his tongue run the perpetual motion . viii . doth ir not too manifestly appear , that law doth undoe more then it relieves ; for our court of equity as it is now handled , a suit in chancery , though it wear out both the boots , shooes , and patience of the clyent , yet commonly out-lasts any four gowns of his council , though he wear it the longer to demonstrate his antiquity . ix . whether doth it not plaine appear that changes in government are most chargeable to any common-wealth . and debillitating the poorest sort for want of trade through the destraction of the times ; is it not therefore honest pollicy to submit to the present power as most fittest to goe on for the common good , as having most experience by their own and others government , and by consequence abler to avoyd all inconveniences , and whether is it safest to consent on all hands from ministers or other professing religion , lest while they bridle not their tongues they speak their religion vain ; that a lawyer plead not against it , unlesse for a place which he shall loose , the first fee he takes by all honest mens consent ; and whether the souldiery if they retard it and be not content with their pay , do they not crack an apostolicall command ? x. whether though it be impossible to make all of one mind ; yet may not a government be so settled that those that will take any osfence , may not be suffered to give any in poynt of faith : and for manners morallity , may not that serve ? xi . whether the common adversary do not get advantage by delayes or discourses , trades decay , and tradesmen discouraged , whereas unity emboldeneth all , merchants adventure , tradesmen give credit , mechannicks live by their labours , and such as want imployment find it at sea , which if we longer neglect the hollander , that water-rat will get all our fish and carry it to spain , and bring us no better return then a few small reasons to fetch our ready money , and if they prove to be our brokers for wine another year , they will ballance the losse of their last warr , with the gain of their trade ? xii . whether the warr with spain , or the peace with france agree best with the stomack of this common-wealth ; and whether pieces of eight be not more staple comodityes then the babies , pupies and quelchoses of france ? xiii . whether as the case now stands with england and english-men , may they not having made a supreame power force a new law , fit for our present condition , having the light of reason and the word of god , rather then to set this government upon the basis of monarchy , which with his lawes will bring in himself . a word by way of addresse to the right honourable the parliament of the common-wealth of england , &c. that notwithstanding the nations several and sad complaints ; yet still the audacious impudent lying covetous deceitfull atturneys , and bloody murthering jaylors , have continued the wicked and audacious practise of injustice , tiranny and oppression , and the still continued sale of justice for the price of iniquity called bribes and fees ; none hath hitherto truly considered the ruine of thousands of people , robbed of their estates , liberties and lives , by arrests , outlawries , false judgements , executions , decrees , orders and repors , begotten and brought forth by corrupt judges , covetous lawyers , deceitfull atturneys , masters of the chancery , registers , clerks , sheriffs , bailiffs , serjeants and goalers , by whom the poor , the widdow , the fatherlesse , and the stranger is slighted , scorned , devoured , yea eaten up as they eat bread , none hitherto in authority have called for justice nor for satisfaction to the oppressed , none hath hitherto regarded the lamentable cryes of the inthralled , none hath laid to heart the miserable enslaved condition of this nation by lawyers , none hitherto hath considered the asflictions of ioseph in bands , as formerly they have protested , declared , vowed and promised to do , but hitherto not performed by them ; therefore in behalfe of this whole nation , thus enslaved and groaning under this unsupportable burthen . the appeale and out-cry is made unto you the above-named persons , praying for speedy help , remedy and redresse of these great nationall destructive maladies , in and by suppressing the lawyers speedily , advancing justice vigorously , abolishing the capias for arrest of mens persons , and restoring the just and undeniable liberties of this nation , according to magna charta , with full reparations to all the oppressed , ruined & wrongfully imprisoned in the land . if the head of royalty be cut off and the power disowned , and this nation declared to be a free state , why then the members of tyrannie suffered to flourish , and still to beare the poysonous fruits of slavery and destruction , contrary to the freedom and deliverance , long-since by you promised and now againe this promise by you confirmed ; and why not then this nation a free people as of right they ought to be ; that so the lawyer may no longer rob them of their estates and liberties , nor the gaoler of their lives , to the utter ruine also of wives , children , and families . finis . a direction or preparatiue to the study of the lawe wherein is shewed, what things ought to be obserued and vsed of them that are addicted to the study of the law, and what on the contrary part ought to be eschued and auoyded. fulbecke, william, - ?. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a stc estc s this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a direction or preparatiue to the study of the lawe wherein is shewed, what things ought to be obserued and vsed of them that are addicted to the study of the law, and what on the contrary part ought to be eschued and auoyded. fulbecke, william, - ?. [ ], , [ ] leaves printed by [adam islip? for] thomas wight, at london : anno domini. . dedication signed: guilielmus fulbeckus. actual printer's name conjectured by stc. the last leaf is blank. reproduction of the original in the henry e. huntington library and art gallery. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic 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and markup reviewed and edited - pfs batch review (qc) and xml conversion a direction or preparatiue to the study of the lawe : wherein is shewed , what things ought to be obserued and vsed of them that are addicted to the study of the law , and what on the contrary part ought to be eschued and auoyded . at london printed by thomas wight . anno domini . . ❧ the contents of the seuerall chapters . chapter . of the worthines and excellencie of the lawe . chapter . of the good qualities wherewith the student of the lawe ought to be furnished . chapter . of the choice which the student of the lawe ought to make in his studie . chapter . certaine rules to be obserued of the student in the reading of his bookes . chapter . of the exercise and conference which the student ought to vse . chapter . that the vnderstanding of the student ought to be proportionable to the intendement of the lawe . chapter . that the student ought well to conceiue the reason and iustice of the lawe in distinguishing and establishing the propertie and communitie of things . chapter . that the words or termes vsed in bookes of lawe ought to be vnderstoode and applied as the lawe doth expound and conceiue them . whereunto is annexed a table of certaine wordes , in the interpretation whereof , the common lawe of this realme and the ciuill lawe do seeme to agree . chapter . what methode is to bee vsed in handling & disposing matters of lawe . lectissimis et generosissimis iuuenibus in hospitijs curialibus connutritijs , & juris anglicani studio operam nauantibus assiduam . s. si theophrastum , vt ipsum nomen indicat , oratione diuinum , circumscripta quaedam spatia , & angusti vmbraculorum circuli á frequenti auditorum corona , & publico iudicum consessu detinuere : si socrates , quem sapientissimum virum , apollo sapientissimus ethnicorum daemon iudicauit , nihilo plura volumina edidit , quàm condidit , id est , nulla : mihi quidem generosissimi iuuenes , non solùm in scribendi initijs , sed in vmbilico etiam & crure valdé metuendum est , ne prima medijs , media vltimis , omnia omnibus , non apposite respondeant : quae enim parcè nimìs traduntur desiderium , quae prolixè fastidium pariunt , et medium quaesitum inuenire difficile , inuentum tenere difficillimum : cum hanc arduam sanè prouinciam primò ingressus fueram , istud me recreauit & sustentauit solatium . qui curas suscipiunt grauiores si mansuetis ingenijs vti volunt iudicibus , eorum audere , est agere , velle est posse , velitari est vincere . fateor in aliquibus tenùs , vltrà , plus vltrà peruentum esse : sed vel metam ipsam attingere , imò verò ad eam contendere , sudoris est et virtutis : quanquā hoc a euo , in hoc praesertìm britanniae elysio , nihil in delitijs habetur praeter meras orationis illecebras : mira certè quae placeant , vermiculata verba , nectareas phrases , eloquentiam atticam exposcunt , omnia limata , arguta , sententiosa esse volunt , planè aristippéi sunt singuli prauè sectum stomachantur ob vnguem . quarè seria & submissa prece , mihi vehementér obsecrandi estis insignissimi iuuenes , vt hic potiùs otij mei foetus quám laboris fructus ( vacatio enim haec proxima quám sub aequinoctium autumnale londini non admodùm inuitus egi , cum ad priuata studia et negotia multum superesset temporis , hanc vobis prolem peperit ) sub candoris vestri radijs calorem et vires recipiat : cuius si compos fuerit , debebit ille quidem vigorem suum vobis , lucis vsuram mihi , fortunam mundo . valete : ex hospitio graiano : pridie nonas septemb. an. salutis humanae . . vobis addictissimus guilielmus fulbeckus . faultes escaped in the printing of the table of wordes annexed to the eight chapter , may be thus amended . fol. . b for index read iudex fol. . a for debito read debitor ibidem . for mixt read mixtae fol. . a for doto read dolo ibidē . b for fidenistor read fideiussor fol. . a for fato read salo fol. . b for maritinum read maritimum fol. . b for contumately read continuately fol. . a for vacillaus read vacillans . the other faultes escaped in the printing of the other chapters , a curteous eye and vnderstanding may easily reforme . of the worthines and excellencie of the lawe . the first chapter . as nothing more encourageth the soldior to fight , and to giue forth apparan● signes of valor , then the glorie & renowne which is gained by exploits of warre : so nothing is a greater spurre to the student of any arte or science , then the iust reward of fame and commendation , which belongeth to those , who by labor attaine to perfection in any praiseworthie science . for as nature rewardeth the bee with hony , so art recompenseth the painfull student with riches , praise or honor . and howbeit some men make small accōpt of praise or good report , as being in their owne conceit but an emptie sound , yet wise men haue thought & written , that a good name is better then gold , aa and that a mans credit is the fairest flower of his garden . now if praise be due to arts and sciences , as being the best treasure & endowment of the mind , religion only excepted , then surely the knowledge of the law may in the first place challenge prerogatiue of dignity , by whose righteous doome & decree it is prouided , ruled , & ordered , that al other sciences should haue their maintenance & support , in such plentiful & condigne maner , as by merite or equity doth to them of right aptaine . but euery art receiueth his commendation by the end & scope which it proposeth to it selfe . and the chiefe end or last marke of the law aswel as other sciences is god his glory . but the next & immediate end , which is allotted to it , is to administer iustice to al , & in that sence it may be called the rule of iustice : for religion , iustice , and law do stand together , & are together trodde vnder foote by such as neither care for god , nor goodnes : such as are rehearsed by one of notable iudgment . a a wise man without workes , an old man without deuotion , a yong man without obediēce , a rich man without almes ; a woman without chastity , a gentleman without vertue , a contentious christiā , a proud begger , an vniust king , a negligēt bishop , a cōgregation without discipline , a natiō without law . but iustice is then rightly administred , when it is not sold , b when there is no respect of persons . c whē hatred is away & conscience is present . d when rigor is tēpered with mercy . e and iustice must be regarded of the law as the load-star is minded of the seaman , for without it can be no gouernment . an other end of the law is the good estate of the people . for it is an aphorisme amongst the lawes of the . tables : salus populi suprema lex esto : let the safety of the people be accōpted the chiefe law . f and the deserueth not the name of a law which hath no relation to publik profit . g for hermogenes said wel that euery law was made for the good & profit of men . h and plato saith , that a law-maker ought to haue regard of . things especially : namely , that the cōuenient liberty of the comon weale may not be impeached by the laws , that they may preserue amity amongst the people , & that they may furnish thē with wisdome . i wherefore they that dispise laws , haue no care of comon profit , k because they were made for comon vse , l & without law , which i interpret to be an order established by authority , neither house , nor city , nor natiō , nor mankind , nor nature , nor world can be . m and therfore cicero saith , that our ancestors were of such vertue & wisdome , that in making of their laws they had no regard , but of publike good : n for they would not write any thing to hurt , and if they had written any such things , it would haue bin reiected as soone as it had bin vnderstood . it is manifest therefore that the end at which the law doth ayme is the generall aduantage of common societie in a iust maner distributed and dealt to euerie one . for , non sufficit bonum fieri nisi bene fiat , it is not sufficient to doe that which is good vnlesse it be done in good sort , and therefore let not any man , which vndertaketh this profession lay conscience aside : for though the charge and calling be seculer , yet it must be religiously handled . for god is the author of the law , and the reuenger of the abuse thereof , the weight and measure , saith solomon , are god his iudgments , and therfore if any man maintaine any wrong by colour or pretence of law let him know , that though man be hurt , yet god is offended , ye do not execute the iudgement of man , but of god , saith iosaphat . god is the beholder and vmpier of counsailes and iudgements , and surely if a man do well discharge this weightie and excellent function , there is no man of any religious habit or vocation in higher place or greater reckoning with god. so much the more are they to bee reprooued , who exercise sychophancie , fraud & caueling in the handling of causes , being wresters of lawes , and wringers of money , whose conquest in bad causes maketh them triumphe as much as romulus did when he had killed his brother : nay as atreus did when he had cōpast the death of his brother thyestes , boasting and glorying . o nunc parta vera est palma , nunc meas laudo manus , now haue i gotten an honorable victorie , nowe i praise my handie worke , but they in whom conscience beareth stroke are farre otherwise addicted , and shal be hereafter otherwise rewarded . nay euen in their life time do they possesse the ensigns of authoritie & dignitie , & by good right may they challenge many special fauors , immunities & indulgences . constantine the emperor gaue to the professors of the imperial lawes , full & perfect freedome from all collaterall charges , taxes , and other burdens of the cōmon weale , p and he decreed also that certain yerely pensions should be paid vnto them out of the treasury , q & the emperor valent. would haue thē which by the space of xx . yeres were professors of the law , to be illustrated by the name of comites , a name of excellent dignity . r many other priuiledges & benefits are mentioned in the ciuil law , which belong as well to studients as to professors , and hereupon had that saying his originall . dat galenus opes , dat sanctio iustiniana : ex alijs paleas , ex istis collige grana . ſ neither hath england bin vnkind or strait handed to men of that coat and calling : for in old time as i find in m. plowden , who was credibly infourmed thereof , there were fower reporters of the cases of law , which were chosen men , and had a yerely stipend for their paines and trauaile therein , paied by the king , t but some will say that god forbiddeth vs to contend . who denieth that ? but he doth not forbid to iudge & determine controuersies : & there is great difference between iudging and contending : for though god do forbid thee to beate a poore traueling man : yet he doth not forbid thee to bind vp his wound , when he is hurt and maymed of others . so though he do greatly abhorre the hatred , rancor , malice , and disagreement of men , yet he is wel pleased and contented that such pernicious & contagious diseases should be cured . let him that condēneth the fault , approue the remedy . one mā rageth with a burning desire of reuenge : an other cōueieth to himselfe an others mans goods by craft , whom when charity & duty cannot bring into the right way , his disloial dealing must be repressed by the seuerity of iudges . moses , dauid solomon , committed no sin , when they caused wicked men to be rigorously punished : & though christ do condemne a quarrelous & reuengeful person , yet he leaueth to the iudges their authority , whether they rule & order causes by the lawes & customes of nations , or by the law of moses . ioseph , daniel , naaman , the centurion , did gouerne cōmon weales by the lawes of the heathen . surely the politicke lawes of kings & magistrates are greatly to be heeded & regarded , which christ himself allowed , when he paid tribute to caesar . and the profession & practise of the knowledge of lawe is warrāted by the example of great men , who would not haue borne the names of professors , if the science had not contained in it singuler wit , excellent wisdome , & profitable directions for the whole course of mans life . it is well knowen that the camilli , the curij , the fabritij , the fabij , the claudij , the scipioes , the crassi , the iulij the ciceroes , & the scaeuolaes were singuler men and singulerly skilled in law . and to giue thē their proper appellation were lawyers . these men gouerned their cōmon weals not in the shadow , in darknes or corners , as the grecians did , but in the cleare light of the sun , and in the face of the world , vsing experience as a pilot against the boysterous & turbulent affections of the people . and therefore virgil when he distributeth v seueral sciences to seueral countries , appropriateth the science of gouerning cōmon weales to the romaines . tu regere imperiopopulos romane memento , parcere subiect is & debellare superbos . mind thou o romaine men by law to guide , to spare the meeke , and ouer-master pride . but some accompt it a matter of too great curiosity , that the laws which should be plain & manifest to al should be reduced to an art obscured with difficult cases , shadowed with conceited termes , and as it were , couered with cloudes , and wrapped in darknes : to whom i answere that it is very expedient , that there should be a certaine art and science of the law , generall rules & preceptes , and conuenient discourses . for the particuler things which do fall vnder the obseruation of law ar infinite , & the weaknes of mans memorie cānot tollerate the multitude of particular lawes : and therefore it is conuenient that that which we call aequum bonum , which in plaine termes is nothing else but perfect reason , should be comprehēded and deliuered in certaine generall preceptes , and plato alleageth this for a reason x because it is necessarie , that there should be regia disciplina a princely science , for he suteth it with that name , which may by a generall censure , order and dispose of all things without regard of euery particular circumstance . for the certaine knowledge of matters , it is good that the law should be bounded by certaine rules & limits : for a mā could not certainly know what were his owne , and what an other mans , vnles the law should as it were by finger point , & shew vnto him , what , when , and howe it were his , and therefore true is that saying of cicero , a omnia incerta sunt cum a iure discessum est . if you depart from law there is no certain state of any thing . and his opinion is in an other place , b that our inheritance rather cōmeth to vs by the law , then by our auncestors : for though they doe giue is , or leaue it vnto vs , yet it is the law which doth settle it in vs , and doth preserue the possession thereof free and inviolate vnto vs. wherefore it is to good purpose , that the law should be definite in it selfe , and should consist of certaine conclusions which should be as the listes and periodes of the science , by the contemplation of which , a man may be instructed and sufficiently furnished for particuler causes and euents : for the particuler case lyeth as it were embowelled , and is implicatiuely contayned in the generall learning , and there is nothing in the law which may not be reduced vnto some vniuersall theoreme , which may easily be conceyued and remembred , because it is generall . c and though the professors of the law doe make-particuler arguments of speciall causes , and do admire examples or cases to the illustrating of that which they do principally handle , yet the law it selfe is comprised within certaine rules . neyther ought it to trouble vs , that the law bookes are so huge , & large , and that there is such an ocean of reportes , and such a perplexed confusion of opinions , because the science it selfe is short and easie to one that is diligent , according to that saying : industriae omnia serua fiunt , all thinges are seruants to diligence , or come at her commaund , and artes ar not to be estemed by the greatnes or smalnes of the books , but by the goodnes of their rules . and though the lawes which do vind mens liues & maners ought to be vnderstood of all , that their prescript being knowen , men may decline frō that which is for biddē , & follow that which is commaunded : yet that may be done either by their own means , or by the meanes of others : & if a mans braine be no fit mould for the law , let an other mans mouth be his teacher . hence commeth the name of counsailor , because in doubtful causes he may resolue & giue counsel : whereby appeareth aswell the necessity , as the excellent vse of the calling : for what can be more conuenient or of better oportunitie , then that a man of experience should shew the way to one that is ignorant . it is therfore expediēt that there should be lawes written , & that such lawes should not be altered without vrgent occasion : for it is a fonde part to striue against the course & stream of lawes , & customes receiued . a great question it hath bin heretofore , whether common weales were better gouerned by written lawes , or by the present & voluntary conceit of the magistrate : this matter , because religion it selfe hath committed ciuil duties to the wisdome and ordering of man , ought to be measured by the examples of wise gouernors & by popular sense . what good cōmon weal hath there euer bin without written lawes , which haue bin vsed by the egyptians , cretensians , athenians , romanes , & iewes . the writing or the engrauing of lawes in tables is a principall cause of the certainty of the same , & without certainty , it should be of smal credit : for what authority or force should it haue , if it did alwaies change like the moone , or like vertumnus : but when causes ar decided by the opinion & wil of the magistrate , the power of gouermēt may be in the hands of such as be vnskilful , or wicked , & so either for want of skil , or conscience , iustice may faile of her course . how often might the pretēce & shew of iustice beguile vs ? how often might iustice be peruerted by fauor or malice ? but if lawes were not generall , & should not sometimes restrain magistrates & gouernors , great inconueniēce would ensue : euen as great as happened in athens by the violent domination of the . tirants , who when they had cancelled & disadnulled the lawes , did exercise a common butchery and slaughter of good men : wherfore , as in dangerous tempestes the ship is not rashly cōmitted to the winds : but there is neede of a skilful pylot by cunning & carefulnes to gouern : so the wauering & passionate mind of the magistrate , must be ballassed and weighed downe by law , least his own priuate affections do driue him from doing iustice as from the hauen . aristotle affirmeth , that god ruleth that common weale which is gouerned by a written law , because the lawes are the champions and defenders of conuenient libertie , then which there is nothing more pleasant in this life : for what thing can be more happy , then to be free from the feare of iniury , & safely to inioy the societie of men , and therefore he would not haue the gouerment of the common weale to be committed to any one man , though very vertuous , without the regiment and direction of lawes . neither let any man say , that i do sinisterly iudge of the natures & dispositions of men , in that i accompt no man of so approued and speciall vertue , and fidelity , that the mannaging of common affaires may be offered vnto him to order them at his will and pleasure without the appointment & warrant of lawes : surely i could wish that euery gouernor were a numa : but yet i would haue the law to be ioyned with the magistrate in the act of gouerment . neither do i fancy or figure in my minde any happier common weale , then such as may accord with the tenor and progresse of humaine affaires . if a man should imagine that the aucthoritie of gouerment were in the handes of the stoikes , such as would neither be moued by hatre , nor fauour , though they in other respects were very vnfit to gouerne , how shall their humors be satisfied , who had rather be gouerned by written lawes , then by vpright magistrates ? for such is the madnes and frowardnes of some , that they wil not be contented with the equitie and faithfull dealing of the iudges , but will still contend by the rigor , and dint of law , and will trie all extremitie , being often times more at iarres & at oddes with the iudges , then with the aduerse partie : here the aucthority of iudges will be weak , vnlesse the lawes publikely receyued do strengthen it : so that in the written lawes there is not onely a safegard for innocency against iniury , but also for the magistrate against the importunitie of the people : but as wayfaring men whilest they trauaile are not afraide of going a stray , when mercuries image doth point out vnto them the way that they are to goe : so good men when a certaine law is proposed vnto them , when by it they know what euery man ought to perform , what to auoyde , they are secured and do wholy repose them selues in the protection of lawes . to the intent that the hebrewes might well agree , & haue good order amongest them selues , god did enact and establish certain lawes , that they might iudge by prescript , and rule , least the law being ambiguous might procure dissentions . and other people and nations haue either by the tyrannons domination of magistrates , or the outragious discord of the people bin enforced to receiue lawes as the square and measure of their actions . in the citie of athens when there was continuall debate about the difficult points of the law thē in force , there arose three factions of men , not of the worst sort , but yet not well agreeing in matters of state : the citie by this meane being greatly molested , and the hartes of men being edged & exasperated by the festered sore and cankerworme of contention , the gouernment was committed to solon : he surueying by depth of iudgement the weake , and impuissant estate of the citie , made lawes , whereby peace and contentment were restored : and when he saw , that these lawes were the sinewes of the good estate of the citie , he determined that whosoeuer should hold any iudiciall place , should in precise tearmes take oath that he would iudge according to the lawes . this was also the cause why the romanes dyd flie to a written law : the magistrates dyd arrogate & assume too much to them selues , the people did exceedingly grudge and murmure that their honest libertie was impeached by the maner of their ruling , and the best men were at variance in matters of law : so that it was thought meete that some equall lawes should be in force , whereby the rashnesse of the people , & the violence of the magistrates might be moderated : for this cause the lawes called the twelue tables were prescribed to the city , which yoak was willingly receiued , because without laws they knew their common weal could not prosper , nor continue . and as there ought to be a certain forme of lawes , so these lawes ought not to be altered or abrogated wythout great occasion , & the euident aduantage of the cōmon weale . there was a law amongest them of locros , that whosoeuer would make a motion or inuectiue against any receiued law , should therof deliuer his mind , hauing an halter about his neck , & if it were agreed by the assembly , that the thing which he indeuored to perswade were for the good of the common weale , the man was safe , & receiued cōmendation : but if it were disallowed , and reiected as an vnprofitable admonition , he was streight way hanged and receiued death as the guerdon of his innouation . and in athens there were a kind of men called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , who in all publike meetings did sit amongest the chiefe magistrates , & did put them in mind not to decree any thing against the lawes in force . thus it is euident that both the making & maintayning of lawes is necessarie . and it is rightly said of cicero , that the law is as necessary for the gouermēt of a state , as the soule & mind is for the preseruation of the bodie , d this ( saith he ) is the bond of all dignities , and degrees , which are in the common weale , this is the foundation of libertie , the fountaine of equitie . the will , counsel , & decree of the citie is contained in the lawes , as the bodie can doe nothing without the soule : so a citie without law cannot vse her actions , power , or aucthoritie . the magistrates are the ministers of lawes , the iudges are interpreters , the people are the seruants , that they may haue true libertie . the law is thus defined by cicero , e summa ratio insita á natura , quae iubeat ea quae facienda sunt , prohibeatque contraria , a principall reason ingrafted in vs by nature , which commaundeth the things that are to be done , and forbiddeth the contrarie , and all the particuler and seuerall lawes of diuers nations , are but the branches of this law : for the lawes be certain and cleere intelligences , and rules , whereby the mind is addressed to pursue that which is good , and to eschew the cōtrarie : and they offer to the mind the formes and ideaes of vertue and dishonestie . so that in the sacred precepts of law , as in a christall glasse , a man may perceiue what he may doe with praise , what he cannot doe without infamie : for the common places , which be handled by diuers , of common duties , of that which is truly good , of that which is perfect happines , of the best estate of a common weale , do not so sufficiently qualifie and instruct the vnderstanding , as the law it selfe . but here i shal be crossed by an other obiection , that great & tedious are the labors which are to be sustained in the study of the law . surely there is nothing of weight or woorth , which may be compassed without paine & trauaile , and yet if the paine be compared and ballanced with the profite , it is but as a few drops of haile to a whole shower of manna . what would not a towardly man do ? what would he not vndertake by his wisedome & warines , to keep all danger from the bodies , heads , and lifes of the innocent : to preserue his memorie from obliuion , and silence : to be of great accompt amongst the greatest : to attaine to that knowledge , which is the highest of all humane artes and sciences ? and though it were as hard a matter for a young gentleman to gaine the knowledge of the lawe , as it was for phaeton to ascend vnto the chariot of the sunne , who ere he could accomplish that , was to passe through vncouth wayes , and by the ghastly formes of deformed creatures , by the terrible signes of the bull , the lion , and the scorpion f , though ( i say ) a studient ought to haue all the lawe perfect , and to passe through a multitude of cases , iudgements , statutes , arguments , treatises , comments , questions , diuersities , expositions , customes of courtes , pleadings , mootes , readings , and such like : yet sith there is no arte nor science , by which the common weale receiueth so great benefit : sith there is no course of life , no time of age , no estate of men , which can either florish or be without the safeguard of lawes , and sith the difficultie of the science is rewarded by the dignitie , credit , and ample fortune which belongeth vnto it : the hope of them which employ themselues in this studie ought not to waxe faint , nor their mindes to be daunted with the labour and paine , which all artes require : but they ought to be incited and allured to proceede in their studies by the excellent and honorable rewardes of the same . of the good qualities wherewith the student of the lawe ought to be furnished . the second chapter . because many applie themselues to the studie of the lawe , without deliberate consideration of their qualities and sufficiencie , so that many times they finde not that contentment , which otherwise they might enioy . it is very conuenient that they should know what qualities are requisite in him , who is to employ his time in the studye of the lawe : for as aristotle sayeth , a rules and precepts haue not force in all , but the minde is to be decked with good gifts , that it may take ioy in things that be truly good , and abhorre the contrarye . the first and chiefe thing that i doe require in him , is , to haue the true knowledge , and feare of god , without which his other knowledge is but as a sword in the hand of a frantike person : and where the light of truth is not , there is a darke and tenne-folde mayste about the minde . but where god is not , there is no truth , there is no light , there is no lawe . the soule and sences , are but the instruments of his will , which hee bindeth and looseth at his pleasure . and if they turne from beholding him to the contemplation of any arte and science whatsoeuer , surely they effect nothing but their owne destruction . i knowe this is no pleasant sound to some daintie eares , who cannot tollerate any naming or mentioning of religion , which the paganes , whome they make as presidents of their prophane manners did not onely regard , but in the very front and beginning of theyr lawes ( such was their reuerence ) they prefixed a precept and caueat for the obseruation and keeping of holy rites in a regardfull manner : ad diuos adeunto caste , pietatem adhibento : qui secus faxit , deus ipse vindex erit : let them go to the worship of god with a chaste minde : let them vse reuerence : god will be the reuenger of him that doth otherwise .. b some perhaps had rather heare a curious discourse handled by some astrologer , whereby they might haue certaine notice and vnderstanding what complexion and constellation is most fit to enter into the studie of the lawe : with such dregs they would haue their minde satisfied . they perhaps , will beleeue ( for what is more credulous then fansie ) that they which are borne vnder iupiter , are not fit for the study of the lawe , as cocles teacheth them , c that they which are borne vnder mercury , are of quick conceit , but quickly vnconceited , soone ripe and soone rotten , especially if mars be ioyned with mercury in the constellation , as it hapned according to the suggestion of some in hermogenes the sophist , who writ of sophistry in his youth like a graue old man , and was in his old age as a trifling boy . but they which are borne vnder saturne , are sayd to be more dull in the beginning , but in processe of time of more sound and deepe knowledge then others : surely i am not of opinion , that the soule and the powers thereof are subiect to the sway and motion of the planets . if i should thinke , that it were a substance flowing from the bodie , or so mingled with it , that it might be accompted a kind of bloud , as some philosophers grossely conceiued , this might seeme vnto me probable .. d but i am fully and immoueably perswaded , that the soule commeth from aboue into this strange matter , whereof the bodie is compacted , and is of an incorporeall nature , which is not subiect to the impression of the senses . for when sicknes affecteth the bodie , the soule is sound : and when the bodie is racked , the minde is free . neither is it to be maruailed at , that it conformeth not it selfe to the change of the bodie , because some materiall parts of the bodie are not alway partakers of the change . let a man go abroade in the most cold and freezing weather , yet his eyes will neuer be frozen , let him stand by a most scorching fire , yet they will neuer feele heate . the strange and different substance of them from the other parts of the bodie , i take to be the cause . now the planets do worke only vpon corporall things , for their influence is of the same sort as the attractiue force of the adamant , or the geate , which cannot worke but vpon materiall things : and therefore i may well conclude , that the starres do not qualifie the minde , but the bodie only , which being a cotage of clay , must needs beare the wind and weather , the alteration and impression of the planets . wherfore let not any mā who aymeth at the knowledge of the lawe as the marke of his desire , make any estimatiō of these physognomicall fictions : let him not goe to the house of mars nor to the spheare of mercury for knowledge . si quis indiget sapientia , postulet a domino : if any lack wisdome , let him request it at the hands of god e he must likewise obserue , that the way to the hight of knowledge is by humilities gate . let not the increase of his skil make his mind to increase , and swell , after the maner of loftie spirited men , who when they know nothing , yet would seeme not to be ignorant of any thing . euery auditor must be willing to heare oportet discentem credere , sayth aristotle , f , who though he were a man of singuler knowledge , yet gaue example of great modestie , by this censure , maxima pars eorum quae scimus est minima eorum quae ignoramus , the greatest part of the things which wee knowe , will counteruaile but the least part of the things which wee knowe not : as if a man should compare one hundred to one . but none doe more boast of knowledge , then the ignorant , as nothing soundeth more then emptie vessels : and they nourishing in theyr mindes a haughtie and ample opinion of theyr supposed abilitie , are so bewitched with selfe-loue , that they thinke they sucked eloquence with their nurses milke , that the bees which are feined to sit vpon platoes lips , did flye to their lips whilest that they were dreaming in the cradle : that they were able to teach old men before they had teeth : and triumphing in this conceit , they admire themselues , & disdaine others , aduancing their own doings , & discommending the fruitful labours of other men , like apes , louing their deformed children , and like phantastick pygmaleons wo●ing their owne deuises . if any thing be spoken of thē sometimes clarkly , and acutely as they thinke , they make an inward applause vnto thēselues , & cherish their harts with this acclamation , facete ! lante ! lepide ! nihil supra ! but if any thing be spoken of others aptly and sensibly , they straightway inferre , quanto tu melius hoc inuenisses thraso ! but a discreete & aduised man , wil iudge none to be so meane , but that he may learne something of him : for though he know more then others , yet hee must thinke , that others knowe somewhat which he knoweth not . the best and the most graue man saith cicero , will confesse , that he is ignorant of many things .. f and solon was not ashamed to say , that in his old age he was a learner . g and iulianus the lawyer sayd , that though he had one foote in the graue , yet he would haue an other in the schoole .. h the next thing i require in a student is temperance , which i do not take so strictly as aristotle doth , who defineth it to be a restreint from corporall pleasures , which are obiected to the sense of feeling p , but would haue it so largely vnderstood as plato q , cicero r , and now of late time s scaliger , and d. gentilis haue taken it to be , a restreint of the minde from all voluptuousnes and lust , as namely from couetuosnes , excesse of diet , wantonnes , and all other vnlawfull delights . a student must in his diet be temperat , and abstinent , for as musonius sayth , continency in dyet is the step to wisedome . t a fat and full belly yeeldeth nothing to a man but grosse spirits , by which the sharp edge of the minde is dulled and refracted , and too much meate cast into the stomack doth ingender nothing but cruditie and diseases . this measure must be vsed in our diet , that no more be taken then will suffice . seneca prescribeth a good rule , u famem fames finiat , let hunger end hunger , which is nothing els in plaine termes , but that a man should rise with an appetite , being rather satisfied then filled . yet he that feedeth more plenteously , is not to be reprooued , if his bodie do stand in neede of more copious nourishment , and a man must not so abstaine , that the functions and duties of the minde and bodie be hindered . good and moderate nourishment doth quicken the spirits , and they do giue strength to the braine , but that which is vnwholesome and immoderate doth stop , thicken , confound , and destroy them . as in diet , so in other things , it is good for a student to haue the rule and mastery of his mind and appetite , neither so to let slip the reignes to his desire , that he will for any commodious respect , bring himselfe to shame and obloquie , and for a present aduantage , incurre a perpetuall discredit . plato hath a sentence worthie of obseruation x , et dicere & facere ea quae decent ad sobrium & prudentem hominem tantum pertinet , to say and to do the things that are comely , belongeth only to a sober and wise man. that example of rudenes vsed by certaine florentine embassadors , is to be auoided . iouius reporteth it y they were sent as embassadors to charles the fift , and pope clement the seauenth staying at bonomia , and being macthants , caried with them ( such was their extreame couetousnes ) certaine wares to make gaine of , thinking they should be free from custome , as going vnder the name of embassadors necessaries . but this being perceiued to the two great estates , moued the emperour to laughter , and the pope to anger , who was a citizen of florence . the legates departed with infamy , which they well deserued for abusing so honorable a calling by such base indignitie , which may be a warning to all to preferre their credit before their greedie desires . dilligence in the pursuing of any studie is of great weight and moment , and in the studye of the lawe it hath principall force and effect , for the cases are many in number , which must be read , remembred , and applyed , which cannot bee compassed but by extreame diligence . and whereas some pretending a lumpish idlenes , would haue the lawe measured with narrowe limits , and woulde haue the multitude of volumes , cases , rules , and diuersities abridged and made lesse , surely they giue large testimonie of their great desire of ease . but ease is a very badde medicine for difficultie , and their pretense is wholy repugnant to reason , yea to possibilitie . they that would haue fewe lawes , must procure that there be fewe causes , and little busines , which it is not possible for any to bring to passe . if it were possible for these faint students to take away the infinite and the innumerable affayres and actions of men , then that which they require might sort to good effect . but that lyeth not in their power , and therefore they should surceasse theyr sluggish surmise . for this cause ludouicus viues is iustly reprehended of albericus gentilis , in that he held , that all things might be finished by fewe lawes , whome gentilis a affirmeth , to fight against common experience . for if many contentions or controuersies should happen , which none can bridle or preuent , if the lawe shoulde not handle , discusse , and determine them all , the lawe shoulde doe iniurie , and it should not be the handmayd of iustice , it should not suum cuique tribuere . so that in the students minde this resolution must bee fixed , not to sinke vnder the burden , but with all conuenient industrie to followe hys studye , neuer to be wearie of paynes , nor to slacken his endeuour , sith nothing of price and accompt is purchased without great labour , by which hee may attayne to the knowledge of many excellent thinges more worthie of admiration , then prayse . neither is it seemely to pretende weakenesse of bodye , and tendernesse of complexion , when health and strength doe well serue , and may well be imployed in studye . ciceroes bodye was neyther of yron , nor of oake , yet hee was not broken , nor in manner altered by continuall night-watchings , noone-sittings , and morning-risings , by many laboures , contemplations , and studyes , by the great charge of hys houshoulde , by the weightie care of the common-weale , by writing manie bookes , and epistles without number , as cardanus well obserueth .. b and why should any man despaire to doe that which another hath done , especially hauing the like disposition of minde , the like faculties and meanes to attaine to knowledge , and the like desire . this diligence doth chiefely shew it selfe in reading and hearing . it is not fit for him that heareth or readeth , to haue a mind wauering from the purpose , and as it were going on pilgrimage . a man is then said to floate in fancie , and to wander in thought , when hee doth not bend his minde to that which is handled , and when he is amongst his bookes in bodie , but not in minde , or when he is present at some reading , and doth not shew himselfe attentiue , but doth number the tiles of the house , or buildeth in the aire , or doth nothing lesse then that which he should do : but the force of the mind must bend it selfe to that thing only which is to be conceiued . for the power of our mind and vnderstanding is more strong when it is vnited , then when it is dispersed , and distracted into many parts . pluribus intentus minor est ad singula sensus . but as these things forenamed are of great consequence and value to the student , so wisedome that rare and excellent vertue of the mind is of great importance , which i do rather exact , then require in a student , for without it nothing can be done decently or perfectly : and surely to a student of the law it doth specially appertaine , for it doth consist in the cunning discerning of the truth of euery thing . c and a student ought not only well to deliuer things conceiued , but well to iudge of them , and in this part standeth the best part of a lawyer . it is the propertie of a wise man most sharply to perceiue what is true , what is false in euery cause and controuersie , not to be deceiued nor inueigled , not to be vnconstant in opinion , nor ignorant in the circumstances of things . the ordinarie meane to attaine to wisedome , is to vse time and diligence sufficient for the consideration of things , to heare reasons on both sides contending in his mind as it were armed and professed enemies , not to iudge of any thing rashly or hastily , nor to giue a sleight censure of weightie matters . for as fabius sayth in lyuye d omnia non properanti clara certaque fiunt , festinatio improuida ac caeca est , all things are plaine and certaine to him that is not rash nor headie . haste is improuident , and blinde , which is therefore rightly termed of plato nouerca scientiae , the stepdame of knowledge .. e and the aetolian magistrate sayd well , ee that there is nothing so great an enemie to good aduise , as haste , which bringeth pennance swiiftly , but warning too late , and without profit , because counsaile hastilie giuen cannot be reuoked , neither can the thing which is disordered by badde aduise , be entirely restored or brought into order againe . but where a man taketh time sufficient , hee cannot be sayde to doe any thing rashlie . wherefore not vnfitlie hath it beene defined by some to be the knowledge of the oportunitte of doing things aright , and the cause that all things be well done , f , and it hath not onely a stroake in worldly affayres , but euen in matters of religion : for by it a man may be so directed , that hee may neither decline to superstition , nor to that which is contrary vnto it , namely , impietie or atheisme . and it is the leauill or compasse of all other vertues in the accidents and affaiers of this life . it will shewe the times and measure of boldnes and audacitie , least it turne to rashnes and impudencie . it will so order temperance the mother of order , that it may not be accompted rudenesse or inciuilitie . it will guide iustice which gouerneth all things , least it turne to crueltie : nay it wil moderate it selfe , least it be termed craft or deceipt . by these effects the student may easily perceiue , how necessary it will be vnto him . the qualities aboue mentioned , do so directly respect a student , that they may be numbred in the ranke either of adiuments , or ornaments . one thing yet remayneth , which is , to be placed and raunged amongst the ornaments only , being a meere ornament , yet it doth as much adorne , as the other doe helpe : and that is curtesie or mildnes , which doth as much decke and illustrate any gentleman , as the dyamond doth the gold to which it is fastned , or as the chaine of the necke doth giue a luster to the brauerie of the other partes , it setteth in order , garnisheth and graceth the other giftes of the minde , without which they shoulde be vnsauorie , and want applause . i distinguish it from ciuilitye called vrbanitas , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for that is onely to be seene in publique meetings and assemblyes , but this may shewe it selfe within a mans priuate walles , or chamber , and may be vsed betwixt man and man. most loathsome and deformed are the manners of the stoikes , who whilest in sowernes of minde they seeke to ouercome mans nature , do exceede it , and of men they become beasts . and such manners haue disgraced men of excellent abilitie . coriolanus was by nature a stoike , and his roughnes of maners is iustly & worthilie reproued of dionys . halicarnastaus g cato was both by nature and profession , whom for his bitter austeritie erasmus condemneth h . and surely i thinke that such rugged behauiour doth relish harshly , and is sometimes vnpleasant to them who by naturall inclination do fauour it . heare therefore a stoike dispraysing a stoike . cu. piso ( sayth seneca ) fuit a multis vitijs integer , sed prauus , & cui placebat pro constantia rigor i cu. piso was free from many faultes , but yet a froward man , and was delighted with stifnes of minde in stead of constancie . florus hath noted the currishnes of romulus with a perpetuall blot of infamie , romulus ob asperitatem morum a senatu discerptus est k . romulus for the roughnesse of his manners was torne in peeces of the senate . but mildnesse is of that sweete and delectable nature , that it pearceth the stonie harts of barbarous people , it affecteth their eyes and eares , it bendeth the most stubborne and insolent spirits , it findeth an easie way amongst swords , it ouercommeth wrath , and alayeth hatred .. l this i commend to the student as a principall meane to gaine fauour , loue , and good entreatie . of the choise which a student of the law ought to make in his studie . the third chapter . nowe that we haue shewed what qualities are conuenient for him , who purposeth to gaine knowledge and credite by the studie of the law , it remaineth to giue him some taste of that course which in pursuing his studie hee may not vnprofitably obserue . for though the way were plaine , yet to them that know it not , it is harde and difficulte . and as the first yoake is to the young steere heauie , not because hee is not able to beare it , but because he is vnacquainted with the carying of it , so yong students though they be in age and capacitie mature and perfit , yet because they aduenture vpon a new enterprise whereof they neuer had triall , they are somewhat troubled at the first : yet in continuance of time , by labour and some direction of veteranes in the art , they pearce through the thornie fence or barre of these great difficulties : but heere let the student take courage vnto him , and when the doore is opened , let him not doubt to enter . as hee must not neglect time , which is a consuming treasure , so hee must make distinct choice of it , least omitting better opportunities , he doe cast him selfe into the straites of time and necessities , whereby he shall finde much incombrance , and his proceedinges shall be crossed by many interruptions . and surely as in all matters of moment , the place where a thing ought to be done is greatly to be regarded : so likewise the time wherein it is to be done . for the turning of all temporall affaires doth depende vpon these two hynges , and these circumstances doe either make or marre the substance of our actions . it hath bin questioned of diuerse whether the morning or the night be more conuenient time for the studie of the lawe , which because it is no moderne doubt , but either part hath had fauorers and patrons in all ages , and to the end that by some clerenes of reason the truth of this matter may appeare , i will bestowe some paines in the opening of this point . marsilius ficinus a man of excellent learning and iudgment doth by fiue reasons proue that a man should rather rise in the morning to studie , then watch in the night . k his first reason is borrowed of the astrologers , which he doth not greatly vrge , because he had smal regarde of their vaine speculations : but admitting that they say to be true , he thus reasoneth : there be three planets which be verie fauorable to students in the course of their studies . sol , venus , and mercury , all which in the night are most remote from our hemispheere , and goe into the twelfth house of the heauens , which is called the prison , towarde the west . his second reason is this . the spirits of our bodies doe followe the state and disposition of the aire . now in the morning , when the sunne riseth , the aire is subtilized and made rhinne , pure , and free from al grosse vapours . but in the night time it is thickned , and corrupted with contagious exhalations , which possessing the sences , doe pierce into the braine . thirdly , the day was made at the first , for labour , and the night for rest , ( and therefore it is said in the . psalme . thou makest darkenes and it is night , wherein all the beastes of the forest creepe forth , when the sun ryseth , they retire and couch in their dennes . then goeth man foorth to his labour , vntill the euening . ) and whilest the sunne holdeth and conteineth his race in our hemispheere , with his beames he doth open the poares and passages of our bodies , and from the center , to the circumference of the same , he doth enlarge the humors and the spirites which maketh vs more apt to labour and studie : but when hee departeth from vs then all these thinges are bound and straitned , and then we are driuen and prouoked to sleepe . fourthly , it is verie healthfull vnto vs to vse labour or studie in the morning , which if it should be in the night the spirits being greatly wasted and consumed by the motion in the day-time , the bodie becommeth weake , and so is vtterly vnfit for any kinde of labour . and he that giueth himselfe at that time to studie , causeth the spirits to flie vp into the head , and they being so distracted , cannot yeelde sufficient seruice eyther to the head or to the stomache . fiftely if a man studie soone after supper , the nourishment is resolued into grosse vapors which doe fill the bodie and are verie noisome obstupatiues to the senses . for the meate being destitute of heate and spirit , doth waxe rawe and doth putrifie in the stomacke . so that the braine is offended and our studie greatlie hindred and impeached . it may be added for a sixt reason , if any thing may be added to ficinus . the spirits wherein all our agillitie and dexteritie doth consiste , by which the braine doth worke , are together with the other parts of the bodie refreshed and strengthened . so that in the morning they must needes be more seruiceable then at night . seuently , the phantasie or imaginatiue part of the soule which helpeth greatly in studie , and principally in the studie of the law , is in the night time confounded and obscured . lastly the bodie in the night time waxeth more dulle , so that the minde cannot vse it as a conuenient instrument . for when the stomacke is full and stuffed with meate , the thicke aire being round about vs , stopping the poores , the great store and abundance of humors is caried , as aristotle saith l to the head , where it sticketh for a time , and layeth as it were a lumpe of leade vpon the braine , which maketh vs drowsie and proane to sleepe : then it discendeth by steppes or degrees , and comming into the other parts doth ingender sleepe . and it is the opinion of a learned phisition , m that the nightlie studie is vnseasonable , & that it wearieth and weakneth students , making them leane and exhausting their bodies . for by late watchinges their vitall spirits through too much intension are weakened , and their natiue humiditie dried vp . demosthenes did studie much by candle light , and therfore his orations were said to smell of the lampe : but he did not begin to studie till the first entrance of the morning , and herein he did endeuor to excel euerie man. but whosoeuer will followe demosthenes in this , had need to be well aduised of the strength and constitution of his body and to examin , quid valeāt humeri ferre , et quid ferre recusent . for nature must not be oppressed , but measure and meane must bee vsed , least the stomacke being made by too much fatigation vnable to digest the meate receiued , the poares of the bodie bee cleane worne out and extinguished . the whole senate of phisitions doe call the morning howers , the golden howers , in regarde that the bodie is then in best temper . this may suffice to perswade , that the morning is more fit for all kinde of studie in generall , and by consequent for the studie of the lawe . i hath bin prooued by probable reasons , and by aucthoritie of wise men . if this will not serue , heare the voice of wisedome her selfe . i loue them that loue mee , and they that seeke mee earely shall finde mee . n i haue dwelt the longer in this question , because it is very expedient for a student , to know the best time of his studie , which if it bee vsed in season , may prosper , and take good effect : otherwise his labour may bee vnprofitable god ( saith ) solomon hath made all things good in their time . o and ecclesiasticus woulde haue euerie man to obserue time . p this therefore i will noe longer handle , being a matter plaine , but will satisfie the student in other difficulties , which are more frequent & doubtfull , and are occasions , that many which doe enter into this studie doe breake off their course , and bid the law farewell . the bookes of law , say they , are not pleasant to reade , the wordes or termes are harshe and obscure , the stile no whit delightfull , the methode none at all . it is a science void of all proper definitions , artificial diuisions , and formall reasons . to aunswere this cauil , ( for i cannot blainch it whiter . ) i will vse a two-folde manner of confirmation , and will shew that either the lawe hath those thinges which they denie vnto it , or if it doe want them , it needeth them not . the writings of wise and graue common weale men learned in the lawe are not to be censured by grammarians , and rhetoricians , who make a gallant glosse of clytemnestraes mules , alexanders horse , and such friuilous vanities . for their studie was farre different being for the generall good and commodious gouernement of the common weale . and if any man reprooue them for want of sharpenes of inuention , and finenes of witt , let him be well aduised , and consider the substance of their workes , and he shall find , that they caried mercurie in their braine , and not on their tongue , and that they wanttd not wisdome , though they were defectiue in rhetoricke , which not to haue ioined with wisedome , is so far from fault , that if they had conioined it they had cōmitted a fault , for who wil not dispraise & detest curled haire , & paynting of the face in an aged matron . and in their writinges wherein their chiefe purpose and addresse was , to search out the truth of doubtfull matters and to deliuer it to posteritie , there could be nothing worse , then a curious kind of stile , which is vsed commonly of them , that seeke to flatter & to dissemble , and to bewitch with a familiar kind of perswasion the common people , with whom such flowers are of more accompt , then substanciall fruit . all kinde of things is not conuenient for all sorts of men . rethoricke i graunt is a pleasant thing , and full of delite . but in professors of grauitie , neither comely nor commendable . who would not allowe a tripping gate , nimble handes , glauncing eyes in a stage-plaier or dauncer . but in an auncient citizen , or graue philosopher , who would not dislike them , blame them , abhorre them . if we see a young damesell pleasant and talkatiue , we doe not reproue it in her , but if we finde that in a matron , wee loath and condemne it . and truely from the purpose and practise of graue men , there shoulde bee nothing more different , then that which sauoreth of too much daintinesse or curiosity . alcibiades his shooe is not fit for socrates his foote , and it is not conuenient for graue men to celebrate the feast of bacchus in the temple of vesta : there is great distance betwixt the style of the courtier , and the professor of the law : for if the courtier should neglect delicate speech , he should be no good courtier : so if the professor of the law should affect it , he should not speake like a lawier . if pythagoras could haue lyued without meate , he would not haue eaten so much as herbes , and if he could haue expressed his meaning by signes or gesture , or by any other meane then speech , he would neuer haue spoken , so loath was he to offend in superfluitie : therefore the writers of the law are not to be reprooued for doing that , which if they had done they might iusty haue bin reprooued . cicero when he treateth of matters of law , speaketh like a lawyer , and a lawyer must speake as the law doth speake : therefore baro q saith well , the writers of the law would not haue left to posteritie , so many law-bookes , if they had affected a choice phrase of speach . and surely if when the latine tongue did most florish , the caesars and cicero him selfe , did not vse any gorgeous and fyled kind of speech in matters of law , shall we desire it of bartolus , bracton , britton , and glanuill , when eloquence was in the ecclipse or wayne , & exceedingly decayed . varro saith , that by the diuerse mixtures of people & nations , olde wordes grow out of vse , and are changed , and new do take place : r how can it then be , but that the common law should haue harsh , obscure , difficult , & strange tearmes by the commixtion of the seueral languages of the saxons , danes , and normans , the authors of the same . polybius reporteth , that there was such alteration of the romane language soone after the expulsion of their king , vntil his time , that they which were most skilfull of antiquitie could hardly vnderstand a great part of the words ſ which doubtles was a great impeachment to learning and knowledge . if the receiued wordes of the law should be altered , it may well be presumed that many auncient bookes of the ciuill law , & the old yeare bookes would in short time , be hardly vnderstood : and i am fully perswaded , that if the auncient tearmes of the law should be changed for more polite and familiar nouelties , the new tearmes would be nothing so emphaticall and significant as the olde . the wordes of the law may be compared to certaine images called sileni alcibiadis , whose outward feature was deformed & ouglie , but within they were full of iewels & precious stones : so the wordes of the law , though they be rude in sound , yet are they preignant in sense . but some perhaps will say mine eares cannot tollerate such an vnpleasant sound and so confused a style , o delicate fellow , when you go to the theater or dauncing schoole repose your selfe wholy in your eares , but when you come to heare matters of weight handled & discussed , rest not vpon your senses , but vpon your mind & vnderstanding . alcibiades was more moued by the naked speech of socrates , then by the laboured eloquence of pericles : but this rhetoritian wil replie : i confesse the law to be of it selfe a reuerend & excellent thing : but it would be no whit worse , if it were more finely and politely deliuered . who wil deny that which is comely of it selfe , to be made more comely , if other thinges be added to adorne it ? to aunswere this briefly and plainly , many things there be to which if you should adde any other thing , you should take away their grace and beawtie . they be of their owne nature in so good estate , that you can not change them , but you must needs make them worse : a tombe or pillar of marble , if it should be painted with any colour , should lose the former grace , & be a great deale worse : & a beawtifull face is often disgraced , by a needles ointment , & so it is of other things which of them selues are fayre & comely : the thing which is added hydeth that which it findeth , & sheweth that which it bringeth : & these thinges which ar handled in the law are not adorned by the varnishing of art , but are obscured by it . and it is not conueniēt in such a serious matter to dally with tropes & figures , nor to riot with superabundāce of words , nor to florish with eloquēce & diaperd phrases : but yet he will further obiect , though it do not belong to the professors of the law to speake and write figuratiuely ; yet surely it behoueth them to speake and write in good congruitie , which notwithstanding they do not . i would gladly know what congruitie it is which curiositie doth require : the fine rhetorician wil say , absurda consuetudo disrumpenda est : the lawyer , he will say , vsus contra rationem annullandus est , he will say that this is not romaine latine , it is most true : therefore ( will he conclude ) it is not well spoken , nor congrue , the argument halteth . the moscouite will speak of a thing after one sort : the fleming after an other sort will vtter the same thing : neither of them speake in latine , but in their owne language : do they not therefore speake right ? yes , they speake right and congrue in their owne language , and so do the lawyers in their owne dialect and language proper to their art. doth any man thinke that these wordes , bellum , exul , sylua , proscriptio , manus iniectio , were vnknowen to the auncient writers of the law ? yet sometime they doe not vse these , but in stead of them they say , guerra , bannitus , boscus , attinctura , arrestū . but it is conueniēt that they should vse these latter wordes , being proper to their art or science . neither is it meete that they should change them for the wordes of a strange language . wherefore scaliger doth vpon good cause dispraise the graetians , because they doe expresse things merely forraigne and external by wordes of their owne idiome : and commendeth the romanes , because they did apply forraigne wordes to forraigne matters . t and the common law being deriued from the normans , and other nations , doth conueniently retaine the words of the first inuentors . and because amongest lawyers latine wordes be vsed many times in an other sence then they are vulgarly and commonly taken , it is not good to haue the interpretation of such words from any other then the lawyers themselues . and though the grammarians and antiquaries do in the etymologicall interpretation of wordes excell : yet the writers of the law in the analogical interpretation of such latine wordes as do belong to their art do farr surpasse them . i do not think any exquisite skill of the latine tongue to be necessarie in 〈◊〉 lawyer : but hold it sufficient if he know so much thereof , and in such maner , as the common sort of men , which are conuersant in the reading of latine bookes . and plato hath a good saying to this purpose , that these things ought of necessitie to be knowen , whereof if a man should be ignorant , he should be said to be shallow v and superficiall . so much therefore of the latine tongue ought to be knowne , as will keepe a man free from such reprochfull tearmes . the auncient reporters and handlers of the law whilest they writ of fines , vouchers , remitters , restitution , releases , and such intricate matters , had no leasure to note the properties and rules of the latine tongue in cicero , plinie , plautus , and varro : they inquired not which was good latine , but what was good law : but they were wise in their iudgements , circumspect in their aduise , sharpe witted in their arguments , graue in their speech , subtill in their questions , cunning in their resolutions : they were excellently instructed to distinguish of ambiguous thinges by most wittie diuersities , to open and to argue harde and enigmaticall cases by sound and inuincible reasons , to confute that which was false , and confirme that which was true . and whereas they are impeached for the want of good and proper definitions , let me aske of these strict logicians , what a definition is ? i thinke they will say that it is a briefe and plaine declaration of the substance of a thing : and be there none such in the law ? surely many : but they will haue ti to consist of the proper genus and the proper difference , as they tearme it , wythout adding any thing els : but it is sufficient if it expresse the nature of the thing , whereunto it is applied . may may not these be admitted for good definitions , a fayre is a great market : a market is a little faire : a village is a multitude of houses : a countie is a multitude of villages , do not these sufficiētly expresse the nature of a faire , market , village , and countie : yet if they should be tried by the touchstone of the logicians , they wruld be vtterly reiected as not currant . some do spend a whole decade of howers in doing nothing els , then seeking out the proper genus and difference of one onely thing , and when they haue done , they are scarsely so wise as they were before , they may say of them selues as gentilis speaketh of them verie fitly : confidentia astra petimus , ruimus in praecipitia . x their diuisions like wise are reprooued , because they doe not flow from the essence of the thing diuided : yet it is sufficient if they doe briefely diuide a thing into his particulers . who can disallow of this diuision vsed in the law , whereby all causes are said to be eyther criminall , or pecuniarie : none but such as will finde a knot in a bulrushe . againe , they say their reasons are not artificially concluded : surely , it is not for any man , vnlesse he bee in the schooles to tye himselfe to a precise kinde of syllogysmall logike : but if it go to the end of the controuersie , it is sufficient , and that is the opinion of alciat . a their methode is amongest other thinges reproued , or rather their want of methode , which exception wanteth trueth . all bookes written of the law may be reduced to these fower heades : either they are historical , as the yeare bookes of the common law : and zasius his counsailes in the ciuill law , in which no methode is requisite , but it is sufficient to report the thinges done , and how they were done : or explanatory , as mast . stamford his treatise of the prerogatiue , and the discourses of diuers glossographers , & commentors in the ciuil law , wherein no strict methode can be obserued : for the commentor must needes follow his authour euery way that he goeth : and if there be no methode in the one , there can not iustly be any demaunde of the other . for he that vndertaketh to comment , or to confute , must applie himselfe wholy to the course of his authour , or the aduerse partie : and therefore scaliger said very aptly to ●ardanus , sequor te non quò ducis , sed quò trahis : b or els they be miscellaneall , and in such there needeth no methode , because things of diuerse sort , and not depending the one vpon the other are laide together : and such are the abridgements of the common law , and the pandectes of the ciuill law : or els they be monological , being of one certain subiect , as m. stamford his booke intituled the pleas of the crowne , ma. lambards iustice of peace , whom if any reproue for lacke of methode , surely his iudgment is out of order , and that excellent booke of albericus gentilis , a ciuilian de legationibus , then which i haue not seene any thing done with more plausible , artificiall , and exact methode which as it is verie hard for any to imitate , so it were to be wished , that he would in some other like treatife equall himselfe . but yet an other obiection hauing more fauorers then the former must bee auuswered , which is that the law is vncertaine , and that lawyers in their opinions and arguments do greatly differ , and dissent . but here the matter is greatly mistaken . for the law it selfe , which doth consist of agreable cōclusions , and of the iudgements , awardes and opinions , to which reason and truth haue subscribed , is not vncertaine , how-be-it they which doe argue of new questions , and causes neuer heard off before , or such as for their great difficultye haue not yet bin decided , doe in argument contend amongst themselues : but that which moueth disputation is not the obscuritie or doubtfull vnderstanding of the law , but the qualities and circumstances of the persons , of the actions , and accidents , of the time , the place , the antecedents , and consequents . and though reason be opposed to reason , and circumstance to circumstance , yet the law is neuer opposed to it selfe . and if a man will condemne an art , because the professors and practisers are diuers in opinion , surely there is no art , nor science , which wil be free from condempnation . goe to the historiographers , who should report the truth of euerie thing , you shall finde them at great oddes : lyuie against polybius , plutarche against liuie , sigonius against plutarche , and xiphilinus the interpreter and abridger of dio against his authour . dio reporteth a prodigious miracle , which xiphilinus altereth , setting a new face vpon it , and discrediting his authour . c goe to the grammarians , you shall find seuen great masters at variance about this one word anticomarita . d goe to the philosophers , there is great dissention and a diametrical repugnance of opinions amongest them : there you shall see the parepatetikes against the academikes , the epicures against the stoikes , the cyrenaikes against the cynikes , the nominalles against the reals , the carpentarians against the ramistes . goe to the schoole of the phisitions : you shall haue the like disagreement : galen against hipocrates , auenroes against galen , auicenna against auenroes , paracelsus against them all , and erastus against him . will any man nowe condemne historie , grammer , philosophie , and phisicke ? if not , then it is euident , that an art or science is not to bee reprooued , because the writers thereof doe in opinion or argument disagree . no more is the law to be dispraised , but rather to be liked for the varietie of opinions in it . for as by the collision or beating together of flint and iron fire doth appeare , so the truth is disclosed and made manifest by the conflict of reasons . a man shall more easilie and discreetely iudge of thinges ( saith aristotle . ) if he haue hearde the reasons on both sides contending like aduersaries . e but if some men be more contentious in points of law , then others , that is the fault of the men , but not of the art . the knowledge of the law ( saith cicero ) is not litigious , but the ignorance thereof . f and if a man should deferre his studie of any art , or science , vntill the writers thereof did fully , and vnitedly consent , it woulde bee as vaine a thing , as if a man shoulde purpose his iourney from london to yorke , but shoulde make a vowe not to begin his iourney , vntill all the clockes in london shoulde strike together . now that i haue remoued out of the way all such obiections , as might be occasion of impediment , and interruption to the student , i thinke it not beside the purpose , to prescribe and commend vnto him some speciall writers of the law , in the reading of which , he may with aduantage and ouerplus bestowe his paines . he that frameth himselfe to the studie of the ciuil law , may very profitably imploy his paines in reading of the code , nouellaes , and pandectes , which are necessarie for the profession . of the auncient writers i thinke these are most conuenient to be read , bartolus , baldus , paulus de castro , philippus decius , alciatus , zasius . of the latter writers , budaeus , duarenus , cuiacius , hotomannus , donellus , and amonge these , yea aboue these , him whom i lately named albericus gentilis , who by his great industrie hath quickned the dead bodie the ciuil law written by the auncient ciuilians , and hath in his learned labours expressed the iudgement of a great state-man : the soundnes of a deepe philosopher , and the skill of a cunning ciuilian : learning in him hath shewed all her force , and he is therefore admirable , because he is absolute . the common lawe is for the most part contained in the bookes called the annals of the law , or yere bookes , all which are to be read , if the student will attaine to any depthe in the law. in them he shall see notable arguments well worthy of paines and consideration . the two late reporters are ma. plowden , and sir iames dyer , who by a seuerall and distinct kind of discourse , haue both laboured to profit posteritie . some humors doe more fancie plowden for his fulnes of argument , and plaine kinde of proofe : others doe more like dyer , for his strictnes and breuity . plowden may be compared to demosthenes , and dyer to phocion , both excellent men , of whome plutarche reporteth , that such things as were learnedly , wittily , copiouslie , and with admiration dilated , and deliuered at large by demosthenes , were shutte vp in fewe wordes , compendiouslie recited , and with admiration handled of phocion . there be certaine auncient writers of the law , namely bracton , britton , and glanuille , whom as it is not vnprofitable to reade , so to relye vpon them is dangerous : for most of that which they doe giue foorth for law , is nowe antiquated , and abolished : their bookes are monumenta adorandae rubiginis , which bee of more reuerence then aucthoritie . ma. fortescue in his writing sheweth a sharpe iudgement , and in this is exquisite , and artificiall , that where hee endeuoreth to bee plaine , he spareth not to be profound . for he writ to a king , who desired to haue intricate things plainly opened . ma. littleton layde a sure foundation of the law , and by his owne booke hath deserued more praise , thē many writers of note and name by their ample volumes : out of the great bookes of the lawe hee gathered the most speciall cases , which were either generally agreed vpon , or by the court awarded to be law , or else in all ages receiued for positiue rules . for very few there be throughout his whole treatise , which may not be signed with one of these three markes : his booke doubtlesse is of such singularity , that littleton is not now the name of a lawyer , but of the law it selfe . m. fitzherbert must needes be commended for great paines , and for well contriuing that which was confusedly mingled together in many yeere bookes : but he was more beholden to nature , then to art , and whilest he lab●red to be iudiciall , he had no precise care of methodicall pointes : but as hee was in conceit slowe , so hee was in conclusion sure : and in the treatises which bee of his owne penning , hee sheweth great iudgement , sound reason , much reading , perfect experience , and in the whole conueyance of his discourses giueth sufficient proofe , that hee sought rather to decide then to deuise doubtful questions . mast . brooke is more polite , and by popular and familiar reasons hath gained singuler credite , and in the facilitie and compendious forme of abridginge cases hee carieth away the garland . but where ma. fitzherbert is better vnderstood , he profiteth more , and his abridgement hath more sinewes , though the other hath more vaines , but i am ●oath to make them countermates , and therefore leaue the iudgement thereof to others . in ma , parkins his booke be many commendable thinges , deliuered by a readie conceit , and pleasant methode : many excellent cases which sauour of great reading , and good experience , his treatise is to young students , acceptable and preciouse , to wh●m his verie faultes and errours be delightfull , but it might bee wished , that hee had written with lesse sharpenesse of witte , so hee had discoursed with more depth of iudgement . for hee breaketh the force of weightie pointes with the shiuers of nice diuersities , yet many thinges are to be allowed 〈◊〉 him , many to be praised , so that the reade● be carefull in his choice , wherein he was too carelesse . in mast . stamforde there is force and weight , and no common kinde of stile : in matter none hath gone beyonde him , in methode , none hath ouertaken him : in the order of his writing hee is smoothe , but yet sharpe , pleasant , but yet graue : famous both for iudgement in matters of his profession , and for his great skill in forraigne learning . and surely his methode may bee a law to the writers of the law which shall succeede him . ma. rastall for his long and laborious trauaile in collecting matters of weight , and moment , which lay dispersed , and reducing them to a conuenient forme hath deserued neuer to be forgotten . and i know not whether i may more iustly commende him for his greatnesse of knowledge , or for the largenes of his books and labours , or for his speciall care of doing things exactly . in ma , theloall his digest of writs , diligence and desire to profit is eminent . he endeuored to be like m. stamford : but he is so farre distant from the delightfull progresse of his stile , and methode , that he may seeme to haue liued in some other age a long time before ma. stamford . but as his strength was lesse , so his labour was equal . for in handling one title of the law , he hath dealt so painefully , that no point can be named concerning that title , which he hath not discussed , nay to giue him right , hath not fully discussed . ma. lambards paines , learning , and law , appeare by his bookes , which are conducted by so curious methode , and beawtified by such flowers of learning , that he may wel be forted amōgst them to whom the law is most beholden . his stile runneth like a tēperate streame , his excellent knowledge and vse of antiquities argueth no small reading , and a singuler conceit : he hath bin so vniuersally beneficiall to the whole realme , that whosoeuer despiseth his workes , bewraieth himselfe . m. crompton hath taken great paines in this studie , and his bookes are in euery mans handes , which prooueth their generall allowance , his cases are verie profitable , and apt for the title to which they are applyed , and so compendiously collected , that a man may by them in few houres gaine great knowledge . certaine rules to be obserued of the student in the reading of his bookes . the fourth chapter . no actions haue good successe , which be rashly and ex abrupto vndertaken wythout direction : for where aduise faileth , there fortune is blind , and not in other cases , and it is farre greater trauaile to atchiue any matter of difficultie by selfe labour , then by the prescription and instruction of others : wherefore it shall not be inconuenient to propose certaine rules , by which the student may hold an euen course in the study of the law. in the vnderstanding of the law the student must not vary or depart from the proper sense & signification of the words , vnles therby some absurditie , inconueniēce , or vniustice may appeare : for otherwise the propertie of wordes is strictly to be maintained , & reteyned . therfore let him be diligent to search out the proper sense of wordes : for as celsus saith , scire leges non est verba earum tenere , sed vim et proprietatem , a to know the law is not to know the wordes of the law , but the force and property of the wordes : for wordes are as it were seruants to things , because they were first inuented for the plain & perfect discription of things : for though nature do make soundes , yet industrie doth coyne words , without which our vnderstanding might be contemplatiue , but not practicall : for without them the vnderstanding is in maner bound , or maimed , because without freenes of speech , and plentie of wordes it can not display it selfe , nor extend his force to the opening & discouerie of any mean matter . and as art maketh the mind to speak , so the mind or vnderstanding maketh art to write . certaine it is , that without words a mans meaning may not be certainly knowen : of wordes some be artificiall , & some inartificiall : inartificiall are those which the common or vulgar sort of men do vse for the deliuerie & declaration of theyr intentions and meanings , seruing not for the illustrating of artes and sciences , but only for mutual conference betwixt man & man : artificiall , are these which the inuentors of artes haue deuised for acquainting the mind with the rules & mysteries of their arts , because words fitly & accomodatly vsed are the verie images and representations of thinges , which do lead the vnderstanding as it were by the hand , to the apprehension & perfect knowledge of the thinges them selues : wherefore in this respect diligence must be vsed of the student . where the law is obscure , that sence must be taken which is least ▪ preiudiciall : for euery perfect speech of man consisteth of two thinges , of wordes , and of meaning , and when both the wordes & meaning are plaine and manifest , he that doubteth of any thing is rather foolish , then curious : but when the wordes be directly repugnant to the meaning , the whole proposition or assertion is meerely voide . obscuritie in writing or speaking , is when the sense can not be gathered , . by that which of the most part of men is vsually done , . nor by that which was vsually done by him that vttered the wordes , . nor by the custome of the countrie , . nor by the common vse of speech , . nor by the pr●misses nor by the ●●quel : and therefore if a man will hyre workmen , and will couenant wyth them that he will giue them as much as other men of the same village or parish , if some giue by day iii. pence , some vi . pence , some ii . pence , the couenantor in this case shall giue but ii . pence : aa because in obscuris quod minimum est sequimur : otherwise it had bin if it had bin plainly & expressely said ( as much as any other man of the said village or parish . ) so if a man promise vpon good consideration to giue to euery of the canons of a cathedrall church a quarter of wheat euery yere , and the number of the canons be augmented : yet the graunt is restrained to that number , which was at the time of the grant . aaa yet the law doth sometime construe deuises by mediocritie : b as if a man deuise to one two cuppes for his table , without expressing the mettall whereof they shall be made , they shall neither be of gold as the best mettall , nor pewter as the baser mettall , but of siluer as a mettall betwixt both : but that is , because euery deuise ought to be interpreted for the benefit of the deuisee , & yet as neere the meaning , & as farre from the preiudice of the deuisor as may be : therefore in deuises not words but meaning is followed , & a transposing of the wordes may be vsed if the meaning require : confused thinges must be distinguished , generalitie restrained , seuered things must be conioyned , implied things must be explicated . but in bargaines & contractes we must not respect so much that which was meant , as that which is spoken , because bargaines do properly consist in facto , & therefore in matters of contract a mans will is rather gathered by his wordes , then by his meaning : for , propositum in mente retentum nihil operatur , and as the wordes do sound , so his will is to be construed : and the wordes of the contract be the substance of the contract . when the opinions of the learned in the law are repugnant the one to the other , it is the safest and best way to follow that opinion which is most agreeable to reason : for if contrarie reasons be probable , the better of them is to be chosen , and that which is more consonant to equitie : and where the reason of the law doth faile , there the disposall of the law doth faile : bb as of the contrary part where , the reason of the law taketh place , her the law taketh effect . c but if contrarie reasons doe seeme to be of great force , wherof the one tendeth to a publique good , the other aymeth at a priuate aduantage , that which is for the common good is more to be imbraced , fauored , & followed : for that which is good to many must needes be good to euery particuler person : and these things which are generally expedient , ar with good reason preferred before such things as do peculiarly profit . d but that reasō which is for the profit of a priuat man , and doth not preiudice cōmon right , may well be admitted . publike profit may be considered after fower maners , . when profit doth accrue both generally & particularly , as by the gouernment of magistrates , e , when the profit is general , but not particuler : as locupletatio aerarij , the enriching of the treasury in cities & townes corporate , f . when the profit is priuate , but yet a publike good commeth of it : as the dowry of women , and the infranchising of citizens , . when it doth so profit particulerly , as that it doth not disprofit generally : g. as when we say that it is not expedient , that men should mispend their goodes , or throw them into the sea : that reason therfore is of more force in law , which is more generally commodious . atque ipsa vtilitas iusti prope mater et aequi . h it is good therefore for the student to fift out the reason of the law , & that by very diligent & earnest search : for the reason of the law is the life & soule of the law : wherfore not without good cause is bartolus reproued of the ciuilians , i for that he denied reason to be of the essence of the law : and surely i thinke there is no law wholy without reason , i mean which was not grounded vpon reason at the fift making of it . yet i will confesse that the reason of many lawes is so obscure , and vncertain , that it can hardly be found out , conceyued , or deliuered . the law is the inuention of wise men , who would not make any thing publique without reason , though the reason of the law may be hid from him , from me , and from a number of men : neither are we to think that any law is therefore without reason , because a reason therof can not be rendred : for as cicero said well , iniquum est quod accidit non agnoscere , si , cur id accidat , reperire nequeamus , l it is an vniust thing not to acknowledg the thing which hath happened , because we cannot find out the reason , wherfore it happened . it is not good to affirme that the lawes made by wise men do want reason , because we can not discouer the reason . but as i do not like plato his conceit , whē he forbiddeth yong men not to inquire of the reason of the lawes : m so to be too curious in the inquisition of it , wil be rather matter of trouble then of praise to the students : therfore it is a point of humility & modestie to think those things , which by graue & sage men haue bin established for law , not to be without reason , though the reason therof can not be discerned . and that which gentilis wittily speaketh of the ciuil law , may be affirmed of the cōmon law of this realm , rationem vbique habet , sed non vbique conspicuam . n castrensis is so peremptory for the reason of the law that he boldly auoucheth , that he neuer saw any law , wherof he did not see the reason . o theodosius did ascribe such aucthoritie to the deceassed professors of the law , that he would haue their answeres in doubtful matters to haue the force & strength of a law. and the same thing was done by augustus , as pomponius reporteth . p but yet i could wish , as gentilis q & alcitat r do require , that the aucthorities and cases of the learned writers of the law should rather be weighed , then numbred : that is , should rather be examined how they accord with reason , then how many they be in number : but if it so fall out , that two men of great iudgemēt do dissent , his argument is to be held for law , which reason doth informe & enforce to be agreeable to the truth : for no man will intend the meaning of the law to be , that the opinion of any man , though singuler in knowledge , should be preferred before the truth : for both the lawyer & iudge are the ministers & dispensers of iustice , & of the giftes of god , & are seruants to god him selfe : but the seruant must not do that which the master will not permit : but neither iustice nor god will do any thing against the truth : therfore , neither the lawyer nor iudge ought to do any thing against the truth . if iustice should iudge according to opinion , & not according to verity , it should thē do iniury , which thing is against her nature . and though many arguments be made for the preseruing and maintayning of the rigor of law , yet none of them ought so to be admitted against iustice and truth , as that occasion of iniurie may seeme thence to arise , whence right and equitie should proceede : ſ because no reason of the lawe , no course of equitie will tollerate , that those things which haue bene conueniently introduced for the profit of men , should be against their profit with a more hard and rigorous interpretation restreined . for these things which be established for a certaine end , ought not to worke the contrarie . t but some perhaps will obiect , that a iudge ought to determin and a lawyer ought to argue , according to the knowledge which he hath by the written lawe , and that is the reason and conscience of a lawyer , as he is a lawyer . but surely such arguments are not proofes , and such iudgements if they be not according to the truth of the thing it selfe , in reason are not sound nor maintenable . for euery proofe should be a true assertion , and euery iudgement the rule of truth . and how can that seeme iust according to the lawe , which appeareth to a mans conscience to be vniust . surely the light of the truth in an honest mind dimmeth and obscureth all cauils and quillets : and it is a friuolous dreame to thinke , that a lawyer hath one conscience as a lawyer , and an other conscience as a christian . for he hath but one soule , and knowledge of the truth , and therefore but one conscience : for conscientia is cordis scientia , and no reason will require that a lye , by any distinction shoulde bee preferred before the truth . the principall meane to enquire after the truth of euery thing , is to examin of two or more contrarie reasons whether is more probable . that which is plausible to common vnderstanding is tearmed probable , and whē the words of a couenant or deuise be cleare & manifest , we follow the literall sense of thē without farther inuestigation , because in things that be certaine , and apparant , there is no place for coniecture : but whē the words be obscure , or whē some thing is omitted , least the graunt , couenaunt , or deuise do faile , we haue alwaies recourse to that which is more probable , and wee imagine that more was spoken then written , and more intended , then vttered . and it is not conuenient , that in the affaires of men , the interpretation which dependeth vpon probable coniecture should be excluded . a a thing may be probable many wayes , first , by the common vse of speech , c secondly , by comparing the consequent with the antecedent , thirdly , by the circumstances of a mans actions , fourthly , by the concordance or agreement with the lawe , because euery one is intended to cōforme his wil according to lawe , vnlesse the contrary be proued : d but it may be sayde , that where the words of the law do faile , the law it selfe doth faile . e and words were inuented , that they might shew the meaning of the parties , therefore we must not regard that which is probable , but that which the words do sound . f to this i answere , that there ought to be no departing from the words , and from the true propertie , vnlesse there bee apparant proofe of an other meaning : g but where an other meaning doth appeare , there the toung yeeldeth to the heart , and the words do giue place to the meaning . h the words onely in such case are not to be regarded , but wee must consider what was meant by the person , quantitie , qualitie , place , time , precedents , consequents , and other circumstances . i and where it is sayd that if the words faile the lawe doth faile , it is true , vnlesse there bee some secret intent of the lawe to the contrarye , k the ground whereof is probabilitie . and though a mans sense and meaning be declared by his words , l yet because there bee more thinges which wee thinke , then which wee speake or write , the speech of a man is not alwayes the touchstone of the minde , but the concurrence of circumstances : and though a mans words ought to be taken most strongly against him , m yet they are wel to be sifted & examined n least the interpretation bee too burdenous in some case , o and so vniust against the partie . a mans speech doth consist of words and meaning , euen as a man himselfe doth cons●st of bodie and soule , or to make the matter more plai●e , the words are but the superficies , and the intent or meaning is the substance . p and the lawe traceth the meaning of a man by the circumstances , euen as the hunter traceth the hare by the print of his foote . q yet i would not that a mans deede or act in the countrie should be made frustrate by some iewish or misticall interpretation : but such an intendment must be taken , as the words being compare● with circumstances will yeeld . for words are not by violence to be racked , but by circumstance to be ruled . and wee must alwayes so interpret , that a mans right may be vpholden . but it may be further obiected , that in graunts and contracts , and in other priuate affaires casus omissus habetur pro omisso r and the inte●●ion or meaning of a man , which is not apparant and manifest , is as a child vnborne , which is of no account till he be brought to light . ſ for a mans speech is an externall act , which is ordained for the declaration of his inwarde meaning , t and therefore words are sayd to be the limits of our meaning . u to answere directly , these words ( casus omissus &c. ) are to be vnderstood onely in such cases where a thing is omitted , both in respect of the not expressing of it , and in respect of the not implying it . but where the lawe will vphold the meaning of the partie , there is no neede of words : and though words were inuented , that they might expresse our thoughts , yet by them onely our meaning is not signified . but there be other signes x namely , the circumstances before the acte , in the acte , and after the acte . thus it is euident , that the best and most probable reason in the conflict of opposite arguments , is to be sought for by the student , and how it may be found . the best interpreter of the law is common reason and intendement . a wherefore if any one mans opinion do differ from common reason , let the student auoide it . neither are such things without cause to be altered , which haue alwayes heretofore receiued a certaine interpretation . b neither is the common lawe any other thing , then a determinate order established and ratified by common consent . wherefore bodinus saith not well , who putteth this difference betwixt a lawe and a custome , in that a custome is accepted by the plausible agreement of the multitude , but a lawe springeth vp in a moment , c and is commaunded by the authoritie of the rular , many times against the liking of them that are bound by it . for common lawe is that which is made and approued by common allowance , and therefore it is lawe , because it is commonly vsed for lawe . wherefore athenaeus d and e polibius do vpon good ground & reason reproue the lawes of plato , because no nation of greece could be perswaded to vse them : but as plato faigned lawes , so he might likewise faigne men to vse them : therefore horace sayd rightly , quid leges sine moribus vanae proficiunt ? lawes without vse are vaine and profit not . f but here it is good for the student to be assured of what nature & qualitie the thing is which i call common reason or intendement , for that may seeme to offer doubt , whether we ought to ascribe common reason and opinion to the number of authors , or to the worthines of them , or to the perswasion of reason which doth concludenter demonstrare to the sense & vnderstāding of the most part of men of indifferent capacitie . i would haue cōmon opiniō takē according to this last brāch . the things which be odious in lawe must be restrained , & the things which be fauorable must be enlarged . priuat customes are odious in the eie of lawe , & whatsoeuer swarueth frō common right : g for the cōmon law was framed in fauour of publike tranquilitie , & therefore the departure frō it must needs be accounted odious . h the lawe is more proane to acquite , then to condemne : i and because it is better with the restraint of an odious constitution , to absolue one that is giltie , then with the enlarging & amplifying of it to condemne one that is innocent , k therefore there is nothing that requireth more diligence & consideration , then to deale warily where there is great danger to any partie , that a man may not rashly determin of a mans credit , bloud , or life : sith these things be of that qualitie , that being once lost , they cā neuer be repaired . l but to know whether things be fauorable or odious , the things are not to be cōsidered in thēselues , but theffects which proceed of thē m as dower is fauored in respect of the widowhood , & desolatenes of the woman whose husband is deceassed . n it must likewise be obserued , that when a thing is forbidden , all things that follow therof are likewise forbidden : as on the contrary part when a thing is granted , all things are implicatiuely graunted with it , whereby we may attaine to the thing graunted : o and if the beginning of things be forbidden , the end also is forbidden according to the rule , qui meditatur principiū meditatur etiā finem , p and things are principally forbidden for the end to which they are directed . but here a distinction is to be vsed , for where the consequēt is of it self auaileable , and doth not necessarily depend vpon the power and vertue of the antecedent , it may be of force , though the antecedent be forbidden , q for then it is without the cause of the prohibition : but if it depend essentially vpon the antecedent , it is otherwise . for the better vnderstanding of this rule , it is good to be seene what may properly be sayd a principall thing , and what an accessorie . that is principall which is of greatest moment : an accessorie thing is that , which by consequence goeth with the principall . if the queene graunt vnto one cognitionem causae , her highnes graunteth vnto him the hearing of the parties , and the examination of witnesses . so the margarites or pretious stones that be in gold or siluer , do yeeld vnto it , and do passe with it , because they are but the ornaments thereof , and were applied to the decking and beawtifying of it . an accessorie briefely may be taken to be that , which is adioyned to a thing , and is lesse then the thing to which it is annexed , either in substance or in valew , or in respect both of substance and valew . the validitie of an act must be especially fauored , vnlesse there be a manifest nullitie in the proceeding . r therefore whensoeuer the nullitie of an act shall appeare by the proceeding of the parties , which is sayd to be euident , and notorious and excluding all cauill , ſ it is to be held as voyd , but if the nullitie proposed do not so appeare , but requireth a deeper search , because many times error is obiected that the sute may be protracted , there consideration must bee vsed . but in doubtfull causes interpretation must bee so made , that the acte may rather stand then fall . but the obiection of error is alway to be fauored , when the error assigned doth concerne the figure & solemnitie of iudgement . t and therefore he that will dispute of the validitie of an award or iudgement , ought to be warie and carefull , that he put the axe to the roote , and that he first examin the iurisdiction and power of the iudge , because that being the basis and foundation of the iudgement , if that fall , the rest cannot stand . it is therefore to be cōsidered whether he were a competēt iudge by reason of the cause , of the parties , of the time , and the place . for by reason of the sute or cause , a iudge may be incompetent , as if the cause belong to a meere iurisdiction , and the iudge be only a magistrate in a certaine corporation : or if the cause be ciuill , and the iudge who taketh connusans of it be iudge of gaole deliuerie , or if the iudge be secular , and the cause ecclesiasticall , or if the iudge haue some other limited iurisdiction , and he taketh connusans of a cause not cōprehended within the lists & bounds of his commission , he may be incompetent also by reason of the place , as if he iudge of causes without his territorie , or circuite , or els within his territorie , but yet in a place exempted , he may be incompetent by reason of the time , as if he did iudge before he had his commission , or after his commission expired , or if his iurisdiction were suspended , as at festiuall times , which wee call dies non iuridicos , or at such a time , when a greater iudge was present : or if the iudge were called to a higher place , or if he were forbidden to exercise his power . and also the person & qualitie of the partie is to be considered , because some by reason of a legall impedimēt are vncapeable of the aduantidge of lawe , as these that are outlawed , excommunicate , and out of the queenes protection . and there can be no fast roote or sure ground of their proceedings , for such are to be denied audience , because their offence & default ought not to find patronage . likewise there may be a default in the party making an attorney , as if he could not make an attorney in that cause , or else by reason of the attorney himselfe , as if he be vncapeable of such an office as being not lawfulby aucthorised . but if a iurisdiction be giuen and graunted to one , it is to be intended to be giuen him accumulatiue , & non priuatiue , rather to enlarge , then to diminish his power . and though a iudge of the gaole deliuery being appointed and ordained by commission to the hearing of causes criminall , may not principally inquire of causes ciuill and pecuniarie , because it is a iurisdiction limitted , yet incidently and as it were by the way , for the better examining of capitall crimes , hee may take notice of such things . but if the processe and iudgement bee framed against one , who is not onely not subiect to his iurisdiction , but is also free from the iurisdiction of euery man liuing , as if the partie be dead , concerning whome , no acte can be conceiued or vpheld , the iudgement is voide . thus haue i shewed to the student in so generall manner as the order of this treatise doth require , and likewise so particularly , as to his vnderstanding may be playne and manifest , what course hee ought to take in examining the cases , reasons , opinions , arguments , proceedings , and iudgements , whereof he shall finde great store and aboundance in his bookes . now i will by fauour discend to describe and delineate vnto him briefely ( for it is a matter which may be handled plainely and in fewe wordes ) what course hee ought to obserue in the exercise of his studie . of the exercise and conference which the student of the lawe ought to vse . the fifth chapter . every art and knowledge produceth effects , and like a good weapon is vnsheathed & vsed in time conuenient , otherwise it would be quickly ouercast and eaten with rust . but there is nothing that with so much brightnes and glory illustrateth our knowledge , as the orderly and iudiciall applying and accommodating of that which we haue read . for as a man knoweth by his bookes , so he is known by his practise , and by that which he is able to performe in the faculty which he professeth , and hee which knoweth to himselfe is not knowne of other men . wherefore i suppose it a thing of exceeding moment for the student , to demeane himselfe well in his conference and exercise , least the multitude of howers which he hath spent , do slip from him without vse , as the sand falleth out of the howre-glasse , when no man seeth or mindeth it . the student of the lawe ought to haue great regard of his speech , and that he deliuer his opinion or argument in conuenient and orderly sort , not after a rude confused and impolite manner , and hee who is not onely wise but eloquent , is without comparison the best in all professions which consist in practise and in the forme of speech . therefore parents and tutors in the uniuersity should haue principall regard , that he who is to addresse himselfe to the study of the lawe , may be fitt with a plausible grace to discourse and dispute , and euen in the prime of our yeares this care must be had . for by nature we hold that fast which in our tender yeares we conceiue , and the worse sort of things do stedfastly abide in vs , the better is soone turned to worse , but in this matter it is good to follow the precepts of such as be neyther too curious nor too ignorant : for there is nothing more like a may-game then these vaineglorious persons , who haue decked themselues with a false perswasion of knowledge . to the student of the lawe i doe therefore thinke this course necessary , because he must liue in great celebritie in the assembly of the people , and in the middest of the common weale . let him therefore enure himselfe from his youth , to frequent assemblyes : let him not be afrayde of men , nor appalled or tymerous through a shadowed kinde of life , least when hee shoulde make vse of hys studye , hys eyes das●e at mid-day , and all thinges bee newe vnto hym , who seeketh that in hymselfe , which is to bee done and performed in a multitude : yet i woulde not haue hym too curious and deynty in hys speeche , for wee must vse wordes as wee vse coyne , those which be common and currant . and it is a great errour for a man to estrange himselfe from the common vse of speach , and to exceeding precisenesse in wordes , and stile , doth quench the heate of our inuention , and brideleth the course of our wittes . yet it is commendable to haue in our discourses both good wordes , and good matter . for cicero dyd not fight with armour of proofe onely , but wyth bright-shining harnesse , when hee did not onely gayne the admiration of the romanes , but theyr acclamation also and applause . but let good wordes conteyne in them good matter , that the argument or discourse may not shyne as it were by oyle and oyntment but by bloud and complexion . it is a feauer-like payne to endure a mans speech , loadned with superfluous wordes . in all thynges decorum must be obserued , least that which wee saye , doe turne to laughter , or loathing , and purchase the name of folly , a meane must bee kept , least our speach bee drye and faynt , or else too copious , and full of circumstaunces : yet it is better for the inuention to bee abundaunt and copious , then to bee leane and poore . wordes if they bee not vested with the substaunce of thynges , are of no force : rhetoricke which is the artificer of perswasion , if it bee seuered from circumstaunces , and raunge without learning by a facile kinde of sway . it is called atechina . if it bee applyed to the destruction of good men , it is tearmed cacotechina , but if it bee bestowed in vayne and superfluous matters , it may bee tearmed mataeotechina , a friuolous labour , and a tryflyng arte . there is nothing whiche more beawtifieth a mans speeche , then an apte diuision or partition of the thynges which bee handled , whiche doth ease the mynde of the hearer , prepareth the mynde of the vnderstander , and refresheth the memorye , and ( as iustinian sayeth ) the obscurytie which doth ryse of a confused text , is by separation and diuision dispersed and remoued . a and as the diuision of fields doth make the tillage more plentifull and sightly , so doth partition in the handling of causes , adorne and garnish them . these things may be aptly deuided which haue a seperate reason , and are sorted to diuers endes . students shall not do amisse , if at certaine times they meete amongst themselues , and do propose such things as they haue read or ●eard by that meane to be assured of the opinion of others in such matters . by this course it may be brought to passe , that euery one may both better vnderstand , and more firmely reteine in memory the thinges which hee hath read or heard , and these things which be to good purpose vttered of others , hee may enioy as his owne . for priuate conference there is no time amisse ; adrianus the emperour ( as dio reporteth ) did handle and discusse pointes of lawe at dynner tyme. m. cat● euen in the court whiles the senate was assembling , did busie himselfe in reading : and surely , he that hath a minde to learne , may learne at euery place , and at euery tyme. gentlemen students of the law ought by domestical moots to exercise and conforme themselues to greater & waightier attempts , for it is a point of warlike policy , as appeareth by vegetius to traine young souldiours by sleight and smal skirmishes for more valerous and haughtie proceedinges , b for such a shadowed kind of contention doth open the way , and giue courage vnto them to argue matters in publique place and courts of recorde , and it will not be amisse , sometimes to reason together , before men of more reading and greater iudgement which may friendly admonish them , and if they erre reduce them into the right way , it is good to bring such matters into question as be disputable , & may deserue argument , for it were a vaine thing to make a doubt of that which is plaine and manifest , as whether a rent or annui●ie ought to be paid to a dead man , or whether a man may commit an offence against the law without punishment and such like , wherein if a man should a●ke any mans opinion , hee might perhaps receiue such aunswere as labio did of iubentius celsus : aut non intellig● quid sit de quo me consulis , aut valde stulta est consultatio tua . c it is euident that one law may with good probability heare seuerall interpretations , but that sence is most to be imbraced which doth take away the occasion of doubting , the way to remoue doubt , is to examine well the reasons of the contrary part , wherefore baldus saith well . ferro aperire viam qui per contraria transit . d and to loose doubts is to find out the truth as aristotle saith , e but often conference and priuate debating of points of law , is the fountaine and originall of exceeding profit , for by it the wit , the memory and the tongue , are greatly furthered and holpen , and a man is made more ready & bold for publike matters , and the truth which is the marke of our study , doth more easily appeare . wherefore it is not vnfitly said of marcellus the lawier , that euery art by continual exercise doth receiue increase . f the wit if it be somewhat dull is by conference more sharpened , if it be ripe and ready it is a great deale more furthered , and to the memory nothing can be more profitable , which of it selfe is so brittle and tender , that vnlesse it be renewed with continual exercise , it will easily perish . and in vaine shall a man passe away the night without s●epe , or the day without recreation , in vaine shall he run ouer the volumes of the law , in vaine shall hee inquire after the opinions of the learned , vnles his memory do represent and readily offer vnto him these things being with great labor followed and atchiued when time and occasion shall require , i neede not shew how much it doth benefit & polish the tongue : for conference is the proper exercise of the tongue . i said that boldnes is procured by the frequent meeting and communication of students , & i wil auow that which i haue auerred , for as by degrees a man doth conuerse and talke with his companions and such as be better then himselfe , so by degrees he groweth bolder , which may bee gathered by that fable of esope : the fox did by chance mete the lyon whom he neuer saw before , & was so affrighted that his senses were almost lost , when he saw him the second time , he feared likewise , but nothing so much as before , but when he saw him the third time , hee was so little afraid , that he went vnto him and talked with him . i said further that it was the high way to discerne the truth of euery thing , and therefore archadius saieth of herennius modestinus that by much disputation he atteined to excellent iudgement , g wherfore let the student often resort vnto his fellow students , and amongst them let him be well aduised of his choise . after priuate and home exercise , publike exercise must ensue , which must not be rashly done , but there must be both maturitie of yeres and aduise , least the vnripe braine doe make the forehead to blush , and in stead of praise we reape contempt . surely it is the beginning and foundation of impudency , for a man to because the opening of the dore , and the holding of the candle was not parcel of the consūmation of the act , and so was the law taken . of queene elizabeth . l an adulterer did counsell the woman to murder the child when it should bee borne , the child was borne and murdered by the midwife in presence of the mother , and by her commandment , the mother & the midwife be principal , and the adulterer but accessary , because his counsel was before the birth , and he was not cooperant in the act , but because the force of his perswasion and counsell did continue vntill the murder it being not countermanded by him , therefore he was held and adiudged an accessarie , but whether in the same case if the woman be admitted to be accessary , whether she should bee a traitresse or no , because the principall is no traytour , is a question which may well beare argument on the one side vpon the letter of the law , and on the other side vpon the meaning of the law , but of this matter i haue giuen the student a sufficient taste , and my meaning was in this treatise rather to drawe the lineaments of things , then to discusse them to the full . these may serue to prepare the minde of the student to handle such things as may seeme to be contradictory in the body of the law. that the student may with more ease compas and accomplish the things precedent , it is good for him to haue great care of preseruing and continuing his memory , and therfore it is a profitable course vnder titles to digest the cases of the lawe , into which they may transfer such things as they haue either heard or read , neither is it safe to trust to other mens abridgements which are little auaileable to such as haue read little , but that which we by our owne sweat and labor do gaine , we do firmely retaine , and in it we do principally delight , and i am perswaded there hath neuer bin any learned in the law , and iudicial , who hath not made a collection of his owne , though he hath not neglected the abridgements of others , the memory is specially to be helped and increased of the student , for though it be the gift of nature , yet by industry it becommeth more excellent . for the integrity of the memory it is good to haue sound health & conuenient digestion of the meate , and a mind free from all other thoughtes , it helpeth it much to make good diuisions , for he that deuideth things aright , can neuer erre in the order of things . there is nothing surely which doth either more growe by diligence or by negligence more decay then memory , it is not good trusting to a suddeine memorie , but a nights rest will adde great strength vnto it . of what force memory is by nature and labor themistocles may witnes , who in one yeares space did speake the persian language verie perfectly and mithridates who did well vnderstande the two and twentie languages of the nations whom he did gouerne . m. crassus whiles he was president of asia attained to the fiue differences of the greeke tongue . cyrus did remember the names of all his soldiors who were in his campe. and if memory be necessarie for any science , surely to the profession of the law , it is of weightie importance , which because it doth pursue accidentia , and infinita requireth no helpe of nature so much as memorie , for the vnderstanding conueyeth the cases to that treasury ; out of which it draweth them as often as vse and oportunitie doth demande . but if the vnderstanding be good , and the memorie nought , a man shall be a lawyer to day and none to morow . wherefore in this part the student must excell , and that he may excell , he must labor , and that hee may labor , he must haue health , which i wish vnto him . that the vnderstanding of the student ought to be proportionable to the intendement of the law. the sixth chapter . the law considereth thinges according to publique respect , that is , as much as concerneth the common weale , not according to their contingencie in facto , which is euery mans obiect , and familiar to common sense , and therefore needeth not any artificall handling : and the students vnderstanding must be so sequestred & re●●ued from vulgar opinion : being the mother of error , and measuring thinges onely by the skinne , and colour , that he must comprehend & conclude many things , which are verie remote from the reach of the the senses , and from ordinarie apprehension : in which contemplation the common law of this realme of england aboue all other doth shew wonderfull sharpnes , and a most exquisite conceit , subtilizing thinges whereof common sense hath but a confuse knowledge , being guyded by the principall reason & inseperable truth of euery thing , which the vnderstanding straineth out of the secret and hidden causes of thinges : for as in hearbes , if we touch them outwardly , we do not finde nor feele any moisture in them , but rather take them to be vrie , vntill by pressing or distilling of them , we wring out a iuyce proper to their nature : so the law doth conceiue and conclude many things of ordinarie contingents , which common sense can not perceiue , but rather imagineth them to be clean contrary to the truth , whereas they may to a good vnderstāding easily appeare to be true by the certaintie & necessary coordination of their causes and reasons . that this may be made euident i mean to annexe some particulars for the explaning therof . it is cleere by law , that a terme and a freehold of the selfe same thing may be both in one man at one time , yet if this be deliuered to a superficiall vnderstanding , it will seeme a paradoxe . tenant for terme of yeres maketh his executors & dyeth , the executors purchaseth the reuersion , in this case both the terme & fee-simple are in the executor to seueral purposes : for the terme shal be assets to the vse of the testator , & the fee simple free inheritance for the vse of the executor & his heires , a and if a man be seised of land of an estate for life , the remainder to his executors for yeres , he may deuise this term or assigne it . b and if lessee for yeres grant his terme to the wife of him in the reuersion , & to a stranger , the inheritance of the husband can not extinguish the moitie of the terme : because he hath the inheritance in his owne right , & the terme in right of his wife . c a man seised of land in right of his wife is attainted of felony , & the king seiseth the land pro vita viri , the king hath but a chattel & the wife the freehold : for if a stranger enter , & the husband dye , the wife shall haue an assise . d likewise it will seeme strange , though in law & reason it be true , that a man should be remitted to his land to some intent , & yet not to an other : as if a recouerie be had vpon a false title against tenant in taile , the tenant in taile dyeth , the issue entreth , he is in of his first right against all but onely the recoueror . e so if tenant in taile discontinue , & his sonne & heir apparant disseiseth the discontinuee to the vse of the father , the tenāt in taile dieth , the sonne by m. chookes opinion is in his remitter against all , but onely the discontinuee . f the issue in taile which hath good cause of a formedon in the discender , is of couin that a. should disseise the discontinuee against whom he recouereth : he shall not be remitted in respect of him , but shal be accompted a disseisor : g but against all others it seemeth that he is remitted . tenant in taile maketh a feoffement to the vse of his wife and his sonne being heire apparant to the intaile and dyeth , the issue is remitted against all persons but onely the woman . h a title may be executed to some intent , and yet not executed to an other : and therefore if there be tenant for terme of life , the remainder in fee to a stranger , against whom a recouerie is had pro loco & tempore in a warrantia chartae , brought by a stranger of other land , he in the remainder dyeth , the recouerer is impleaded and voucheth the heire of him in the remainder , and recouereth , tenant for life dyeth , execution shall be ●ued against the heire of the land whereof his auncestor had a remainder , because there was a remainder executed in the father to this intent at the time of the warrantia chartae brought : i but to all other intents it was executory , for it was not executed that the wife might be endowed , nor for him in the remainder to bring a writ of right , k but the remainder in such cases is to some intents executed : for if he in the remainder had aliened his remainder in mortmaine , the lord might haue entred , l and vpon such a remainder the lord may haue a cessauit , m but the heire shall not haue an assise of mortdauncester . n a thing may be extinct or in suspence in one respect , and in esse in an other respect : the father being tenant in taile alieneth the land with warrantie , and hath a rent charge in fee issuing out of the land of his sonne and heire apparant , which rent discendeth to the sonne , this rent is a good assets for the value in respect of the discontinuee : and yet it is extinct in respect of the issue . o a man seised of a rent seruice is bound in statute staple , and after purchaseth the land , out of which the rent is issuing after execution , the rent is extinct , as to the conusor , but in esse as to the conusee . p a corrodie is graunted to i. s. for life , who graunteth it backe to the grauntor for terme of yeares rendring rent , the corrodie is in esse as to the payment of the rent , but in suspence as to the taking of the corrodie . q and it was lately ruled in one caires case in the court of wardes , that if a man held land of the queene by a certaine rent , and the queene graunteth the rent to a stranger , who graunteth it to the tenant , the rent is extinct as to the payment , but in esse as to the tenure . the king seised of a forrest graunted the office of the forrester to one rendring rent , and he graunteth the forrest to an other , the forrester forfayteth his office , yet the grauntor shall haue the rent : r so that it must needes be that the office to the intendment of law is to that intent in esse . and if a man graunt to an other a rent out of his land in fee vpon condition , that if the grauntee or any of his heires dye , their heire being wythin age , the rent shall cease during the minoritie , if the grauntee dye hys heire wythin age , his wyfe shall haue dower , but cessabit executio during the nonage : ſ but in this case it seemeth that if the heyre dye during his nonage , the wyfe of the heire shall not haue dower of the rent : because it was neuer leuiable by the sonne , as it was by the father . a man seysed of two acres of lande hath issue two daughters and dyeth , now the rent is in suspence , as to one moitie , and in esse as to an other moitie . t the intendement of the law is as stronge in a matter of law , as the trueth it selfe in a matter in facto : and therfore if a. be disseised , and hys brother maketh a release with warrantie to the disseisee , and afterward entreth into religion , this warrantie shall be a barre to a. although that hee be lyuing : u for a. may haue his land by discent , and therefore it seemeth to be reason , that the warrantie should discende vpon him as his heyre . note here of what validitie the intendement of law is touching a ciuill death . the wardein of the fleete who hath the office in fee dyeth seised , and the office discendeth to his sonne and heire , being then in prison , the law doth presently discharge him of imprisonment , because he is to be at large the better to looke to others , that be in pryson . w a man maketh a lease to one for terme of life , rendring the first seauen yeares a rose , and if he will hold the land any longer then seauen yeares , that then he shall pay foure markes yerely : liuerie is made , the lessee surrendreth at the ende of the first seauen yeares , his estate was adiudged to be but a terme ab initio , and no freehold , and the writ of couenant brought against him for not repayring was qui tenuit ad terminum annorum . a if a man make a lease of land excepting the trees which grow vpon the land , the trees are seuered in law : for he hath no reuersion of them , and if he sell them , and after the sale make a feoffement , the feoffee shall not haue them , because they were seuered by the vendition or sale of them , b for by the exception they were seuered from the terme , but not from the inheritance , but by the vendition they were seuered from the inheritance . if the baylife of the land doe demaunde a rent seruice , and the tenant denyeth it , and the baylife sayth that hee will distraine for it ▪ and the tenant sayth that hee shall not distrayne , wherefore the baylife dare not proceede further to take a distresse , for doubt of death , thys is a disseystn of the rent in the eye of the lawe . c and if a rent seruice be warranted to one , and the land doth escheat , the law as m. finchden thinketh transferreth the warrantie to the land . d . one thing in the vnderstanding of law may be of seuerall natures in seueral respects , and so one writ may be two seuerall writs to two seuerall intents : in an action of debt the declaration was of x. li. vpon a sale , and v. li. which he had deliuered to the defendaut to redeliuer , and it was held good , because the action was in the debet and detinet , and the warrantie of atturney and the essoine in this case shall be in placito debiti . e quaere , if a man lease land to one for terme of yeares rendring rent , and the lessor graunteth his rent to a stranger , and the lessee surrendreth ; this doth not extinguish the rent , for now it is a rent seck which doth not depend vpon the reuersion , f and so one man to the vnderstanding of law may haue seuerall capacities or respects : for if a man disseise a feme sole , being an inheritrix of certaine land , and after he taketh her to wife , and they haue issue , and the husband is disseised , and the disseisor leuieth a fine wyth proclamations , the husband dyeth fower yeres after the proclamations , and before the fifth yere be passed , the issue being of full age , and after the wife dyeth , and the fifth yere passeth , now the issue is bound as heire to his father , yet he may haue other fiue yeres , as heire to his mother , to be accompted from the death of his father . g so if i. s. be tenant of land , for terme of an other mans life , the remainder to an other for life , the remainder to the said i. s. for terme of his life , or in fee : and he is disseised , and the disseisor leuieth a fine with proclamations , and the fiue yeares incurre , now is i. s. bound for the present estate , but if he in the mesne remainder for life die , hee shall haue other fiue yeres for the other estate . h so if a man haue an estate in land for the life of a. the reuersion to himselfe for the life of b. the remainder to himselfe for the life of c. and is disseised , and the disseisour leuieth a fine with proclamations , he shal haue fiue yeares seuerally after euerie seuerall estate determined . i i. s. giueth land to a. his daughter in taile , and hath issue b. another daughter , and dieth , a. dieth hauing issue c. a precipe is brought against c. who voucheth to warrantie her selfe and b. as heires to the donour of the reuersion to haue the warrantie paramount , in this case is c. both the vouchor and the vouchee . k a terme is deuised to one who is made executor , he entreth , this is an administration and an execution of the terme vnto him , and he is both deuisee and executor . l a. couenanteth by indenture with b. that the sonne of a. shal marrie the daughter of b. and that therefore b. shall giue vnto a. an . li. & if the marriage did not take effect before such a day that then a. and his heires should stand seised to the vse of b. and his heires vntill the hundred pound be payed by a. his heires or executours b. dyeth , and after the marriage taketh not effect , the vse and possession of the land vesteth in the heire of b. but quaere saith brooke whether he shall be in ward or no , for he is an heire and yet he is a purchasor . m if i. s. be deane of p. i may giue him land to him and his successours , and to him and to his heires , there hee taketh both as deane and as a priuate man , and is tenant in common with him selfe : so if a rent charge be graunted in such manner , he shal ioine with himselfe in an auowry . n likewise the lawe may deny one a benefite as he is i. s. and yet allow it vnto him as he is executor to i. n. and therefore if an executour be outlawed , or excommunicated , which be disabilities in law : yet as an executour hee may maintaine an action , because he sueth and is to recouer to the vse of an other person . o and so an executour may haue an action of trespasse in his owne name , without nameing his companion in the executorshippe , if goods be taken out of his possession . p for he is possessed of them as a priuate man , but he is possessed of them to the vse of an other as executour . q and he need not in the case aforesaid name , himselfe executour . r for if he do , it may tend to the abatement of the writ according to m. kebles opiniō . ſ who saith that the possession of one of the executors ( his meaning is as he is executor ) is the possession of both , and herewith agreeth the opinion of newton , but by their fauors though the propertie of the executors in the goods of the testator be one and the same , yet the possession may be seueral , for he that hath the custody of goods may only be said to be in real and actual possession of the same , which kinde of possession is onely heare meant , for which cause a writ of detinue that concerneth the possession of goods , shall bee brought only against that executor who is possest of the goods . t the law may worke seueral thinges in one instant as if a disseisor make a lease for yeres , and after he and the disseisee release , by one deed to the tenant for yeres , the law adiudgeth the release of the disseisor first to take effect , and after the release of the disseisee , for there is no priuity nor estate in the lessee , vpon which the release of the disseisee may inure , if the law doe not make such construction . u if the tenant for thirtie yeres make a lease for tenne yeares , and they both surrender to him in the reuersion , the surrender is good for both estates , and yet the lessee for tenne yeares , coulde not surrender by himselfe for defaulte of priuitie , but when the other ioineth with him , his surrender shall hee taken to goe before and the other to followe it . w likewise if the tenaunt for terme of life surrender to the grauntee of the reuersion , this is both an attournement and also a surrender . a so if a man haue land by discent by the mother side , and leaseth it for yeares , the lessee couenanteth and graunteth to pay yerely to the lessour and his heires xx . s. the lessor dyeth , the law in a moment will conuey the reuersion , to the heire of the part of the mother , and the twenty shillings to the heire of the fathers side , because it is a sūme in grosse . b by intendement and admittance of law a thing suspended may bee reuiued , for if the donour disseise the donee in taile , and after maketh a feoffement , and the tenant in taile reentreth , nowe the feoffee shall haue the reuersion . c so if the heire in taile entreth vpon the discontinuee , and maketh a feoffement vpon condition , and for the condition broken reentreth , and after a recouerie is had by the discontinuee , the issue in taile is now restored to his first action , and the entaile is reuiued , for by the breach of the condition the feoffement is disanulled . d tenant for life , the remainder in taile , the remainder in fee to the heires of the tenant for terme of life , graunteth a rent charge in fee , this shall charge the land during his life , but it shall be suspended during the entaile , and after the entaile determined it shall be reuiued , and shall charge the heire of the tenant for life . e the law altereth the nature or substance of a thing by matter , ex post facto , a man seised of lande in right of his wife , entreth into religion , the wife alieneth , the husbande is deraigned , the husband may reenter into the land . f so if a man bee indebted to a villaine , who recouereth in an action of debt , and after the debtour purchaseth the mannor to which the villain is regardant , and after alieneth it , the villaine may nowe haue execution . g if a man make a lease for terme of an other mans life rendring rent , and the arrerages incurre , the lessor shall not haue an action of debt , because he hath a franktenement in the rent , but if cesty que vie die , now is the freehold as to the rent conuerted into a chattell , and nowe he shall haue an action of debt . h likewise a deuorce altereth the estate of frankemariage into a bare freehoold . i if a man adde a condition to a single obligation after the deliuery , this maketh the obligation void , for now it is not his deed , and the same law is of the rasing or enterlining of a condition after the deliuery of the obligation . k if land bee giuen to one in taile , and the donee giueth the land to the donour , and to a straunger for terme of their liues , this is a discontinuance conditionall , namely if the straunger suruiue . l if the sheriffe attache one by force of a capias that is iustistable , but if hee returne a non est inuentus vpon the writ , he is a trespassour ab initio . m if i. disseise i. s. and leuie a fine to i. n. and after i. s. entreth vpon i. n. and enfeoffeth me , and i. n. entreth vpon me , and i bring my assise , and i. n. pleadeth the fine in barre , i may auoide the fine by shewing the matter aforesaid . n if a fine be leuyed of land in auncient demesne , and the lord disanulleth the fine leuied at the common lawe , he hath restored the right to him that leuied the fine . o if hee which abateth after the death of the tenant in fee simple make a feoffement vpon condition to be perfourmed within nine yeres ensuing , and after the feoffee leuieth a fine with proclamations , and the fiue yeares incurre the condition is broken , and the abator reentreth , now the heire of him that dyed seysed may haue an assise of mordauncestor against the abator , whereas before hee was bounde by the fine . p tenant in tayle maketh a feoffement and taketh backe an estate in fee , and bindeth him selfe in statute marchant , and then maketh a feoffement vpon condition , and after the recognisance is put in execution , and the tenant in taile dyeth , and the heire in taile being within age entreth for the condition broken , he is remitted , and the recognisans auoided , but otherwise it had bin if he had bin of full age : for then he comming in vnder the estoppell should not haue auoided the estoppel , nor by consequence the recognisans . q if my very tenant be seised of a manor held of the king in capite , and of an other manor held of me by knightes seruice , and he is disseised of the mannor helde of the king , and afterward dyeth seised of the manor held of mee , wherevpon i seise the body of the heire , and after the heire within age recouereth the mannor held of the king , nowe the king may haue my lande also in warde , because the heire shall nowe be adiudged to bee in by discent , and the king shall haue the wardeshippe of the body . r if my horse strike one , and after i sell the horse , and afterwarde the partye that was stroken , dyeth of the stroke , nowe shall the horse be forfayted as a deodand . ſ if a villaine inflicte vpon himselfe a mortall wounde , and the lorde seyseth his goods , and then the villaine dyeth , nowe shall the queene haue his goods because hee is felo de se . t a man administreth of his owne wrong , and after taketh letters of administration of the ordinarie , this shall relate to the death of the intestate . v the heire chargeth land which is after recouered in a writ of dower , the woman shal holde it discharged . w thus it is euident that the vnderstanding of the lawe worketh especially vpon relations on the first causes of thinges reducing through many straites of colourable pretenses and obiections the right of a thing to him to whom it appertaineth , according to the qualitie and exigence of the said right and title , so that the vnderstanding of the student when it entreth into the suruey of these intricate and hidden pointes , must bee of this abilitie to compound thinges , and to resolue them by imagination , to builde and destroy , and to turne sayle by circumstances and occurrences : for there is no case which accidents may not alter , but that one thing may counteruaile an other , or that a defect may be supplied by enforcement of reason , or that a wrong may bee purged and transfourmed into right , and blacke as it were changed into white , contrary to nature is the worke of intelligence reflecting vpon it selfe , some perhaps carry such spiced and scrupulus consciences , that they cannot abide any fiction or representation of a thing that is not in facto , but surely the supposall admittance and intendement of the law is necessarie , without which neither the science of the law , nor any other which consist in contemplation and abstraction of the essences of thinges from the confusion and mixture of circumstances can be of any woorth or force . and though i must confesse that euery thing , which is imagined to be done , and is not actually done is a phantasie , or an vntruth , yet this must be graunted , that , that which is not really done , and yet for auoyding inconuenience must be supposed to be done in facto is not a fault , though it be false . many things of thys kind & qualitie haue i before immediatly proposed which will be voide of all effect , if you take imagination from the law : let it therefore be considered what this imagination is whereof we speak , that by the description thereof it may be better knowen . it may thus appeare vnto vs , fictio a supposall or admittance of a thing to be is , legis aduersus veritatem in re possibili ex iusta causa dispositio , the disposing of the law against a matter of truth in a thing that is possible , grounded vpon iust cause : and there is great difference betwixt imagination and presumption , because fictio iuris the imagination of law tantum operatur quantum veritas ipsa , in the conclusions and decisions of law , and the law maketh sometime ens ex non ente in intelligence , though not in existence : but praesumptio stat in dubio it is doubted of , and yet it is accompted veritatis comes , the companion of trueth , qu●tenus in contrarium nulla est probatio : and the vse of supposall or fiction in the law is onely to supplie that quod desideratur in facto , which is wanting in fact , vt ex ipsa produc●ntur veri i●ris effectus , that true effectes and conclusions of law may proceede from it . the logicians say that the vniuersals are not in rerum natura , for if they were they should be monstra : for an vniuersal man , or an vniuersall tree comprehending in it all trees , is r●●her by vnderstanding to be comprehended then by sense to be compassed , yet i would not haue any imagination to be vsed : but where equitie and the orderly coherence of thinges doth require it . that the student ought well to conceiue the reason and iustice of the law in distinguishing and establishing the propertie and communitie of thinges . the seauenth chapter . the ende and effect of the law is to settle the propertie and right of thinges in them to whom they belong : and to iudge those things common which continuance of time and the entercourse of parties hath distributed & warranted to many , for if all thinges should be common , there should be nothing in order , and if nothing should be common , men would hardly be kept in duitie , for then should friendship , societie , and conuersation , the comforts of mankind faile , which would turne the whole common weale into a wildernes : therfore the most prudent and politike law-makers haue thought it most conuenient , that betwixt these two extremities a middle & euen course should be taken , whereby propertie myght be reteigned , and yet communitie preserued . plato , because once he was of opinion that all thinges ought to be common , hath therefore many blowes of his scholler aristotle writing against him in hys politikes , in which booke he hath a learned difference , that all that be common 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in vse but not 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in possession and title , which notwithstanding is not generally and indefinitely to be admitted , because then it tendeth to the ouerthrow and vtter subuersion of all common weales : but plato being after better aduised did retractate his former opinion , and laboureth to confute it : for in his book of lawes he writeth in one place , let euery man haue the free vse and possession of his goodes by law , whether he be citizen or stranger , a and in an other place : the distinction of demeanes , inheritances , and titles , is the foundation of all priuate contractes , which must be seuerely established by law : therefore meum and tuum ought to be in euery common weale . b and againe , let the inheritances and properties of thinges be definite and certaine in euery common weale , and let a certaine manner of purchasing them be prescribed by law. c thus it is euident that a distinct propertie of thinges is commodious and conuenient for the good administration of a common weale : it is of two sortes , eyther an absolute and indefeasible propertie , or els a qualified propertie and sub modo . an absolute propertie is such which is not in any sort subiect to the claime of any other : but a qualified propertie is that , which one man may claime after one sort , and wyth a certaine limitation , and an other may claime after an other maner , and wythout limitation : as if a man doe hyre beastes of an other to manure his land for a certaine tearme , hee that hyreth them hath a propertie in the beasts pro tempore , and therefore if the beastes during the tearme be taken away , he may haue a generall repleuine : d so he may haue of beastes which bee in his custodie and were committed to his keeping : e and so he may haue a generall writ of trespasse for the taking or dryueing away of beastes in his custodie , though the absolute propertie bee in an other man : but if hee whych hath the verie propertie doth take them , an action of the case will onely lye f and the bailie of corne or money , being out of sacke or bagge , hath so farre foorth a propertie in the thinge deliuered , that if the bailie be afterward attainted of felonie , he shall forfait the corne and the money : for it cannot be knowen whether they be mine or no. g and the lord may haue a repleuine of the beastes of hys villaine , or bondman , if hee haue bin seised of his villaine . h and it appeareth by diuerse bookes , that in an action of trespas , it is no plea to say that the propertie , that is the verie propertie , is in an other . i and it is sayd lykewise , that hee out of whose possession goodes are stolne , may haue an appeal : and he lykewise may haue an appeal who is the verie proprietarie . k and therefore it is a firme conclusion in law , that if sheepe be deliuered , or leased to one for a certaine time to marle his ground , the deliuerie or demise is a good plea in barre of an action of trespasse , or repleuine , because hee hath a propertie modo et forma against the baylor himselfe , or lessour , and may haue an action against him for taking them away wythin the time . l and as the propertie of thinges may be particuler or generall , so likewise it may be ioint or seuerall : a ioint propertie is where two or more are ioyntly interessed in a thing : a seuerall propertie when they haue seuerall interestes in seuerall thinges : and therefore where the propertie or right in goodes and chattels is ioint , there the action which is brought to trie the propertie must not bee seuerall : and therefore in a writte of rauishment of a warde the defendant sayd that the plaintife had nothing in the seygniorie but onely in common wyth such a one , and this was helde a good plea , wythout saying that hee had nothing in the warde in seueraltie , or wythout shewing how hee helde in common in parcenarie , or by iointenauncie . m and so if the propertie bee seuerall , the action must not be ioint but seuerall : and therefore if in a writte of repleuine brought by two for certaine beastes , if the propertie of some of the beastes belong to one of them onely , and the propertie of some of the beastes to the other , the writte shall abate . n thus it is euident that the lawe doth maintayne and vpholde the ioynt and seuerall propertie of thinges , without which the common weale could not consist . now let vs consider how the communitie of thinges is lykewise respected by law. a man may obserue and deduce hys accompt from former times , that it hath bin thought very necessarie and conuenient that mutuall commerce and trafique betwixt nation and nation should be entertayned & continued : o and therefore plato wisely admonisheth , peregrinorum commercia respub . né auersetur : and amásis the egyptian king was so glad of the commerce and resort of strangers , that he graunted to the grecian merchants beeing meere aliens , the vse and exercise of their rites and religion in their owne language : and to the ende that strangers might more commodiously practise their negociation in that realme , there was a certaine place appointed in that kingdome , namely naucrate for the receit of forraine wares , p which course is greatly approoued by aristotle , whose opinion is , that a principall citie must be erected in some conuenient place whereto thinges which be necessarie to thys lyfe may bee abundantly conueyed , and to which there may bee easie passing for them that be in league w●th vs , and hard for others : q and therefore sayth he it ought to be scituate neere to the sea . r and doubtles iust was the quarrell and complaint of the people of megara against the athenians , who had vtterly barred and secluded them from theyr hauens , and from all marting wyth them : ſ for he whych breaketh and dissolueth the reciprocall entercourse of nations , is an enimie to the societie of mankind . and strabo in hys last booke noteth it as the propertie of the barbarians , to repulse and keepe out of theyr territories all straungers , which custome is agaynst the lawe of nations , what a great point of inhumanitie is it to deny them the sea which by nature is open to all : t yea , it ought to be as common as the vse of the aire : u and all creatures may claime the free vse of that , as may appeare by that ●aying of daedalus : omnia possideat , non possidet aera minos . w though minos all things do possesse , the aire is not his owne . and the shore of the sea is by nature common to all , as neralius sayth , a and though empires and kingdomes be deuided , yet the vse of such things remaineth still in common , and therefore the saying of maro in the person of one of his traueilers was vttered with good reason : quod genus hoc hominū , quaeue hunc tam barbara more● permittit patria ? hospitio prohibemur arenae . but yet to enimies , because in them the league of friendship doth faile , the right of fellowship should not be graunted . for grossely are they deceiued , who would without restraint haue all things common , of which error the anabaptists are patrons , and do endeuour to ground their error vpon scripture , but falsely , for abraham and the patriarches were men of great riches : iosua did publikely and priuately distribnte his goodes to the people of israell . there be in solomon precepts of the proprietie of things . and god woulde not haue sayd , thou shalt not steale , if he would haue had all things common : for to steale , is to take away goods wherein others haue a propertie , and therefore theft is sayd to bee contrectatio rei alienae animo furandi , inuito illo cuius illa res est . b but yet the rule of charitie and societie requireth that some things should bee in regarde of vse and benefit common to other , and therefore by customes of countryes , and by lawe , the offspring of these customes , the earth is in parte appropriated vnto some , and in parte participated and made common to others . therefore the common lawe doth well allowe and mainteine the common vse of certaine things , as namely , the vse of fishing in another mans pond , c of pasture for hys beasts in an other mans soyle , d of taking of an estouer or maintenance of wood in another mans groue , e of hauing a franchise and libertie in an other mans mannor or seignorie , f and lastly , of hauing a way through an other mans ground . g some thinges there are , the propertie whereof the lawe can not vest in any , and therefore it leaueth them to the occupant , that is in playne tearmes to hym that can seise them , as things which are by nature ferae naturae , as beasts , birds , or fishes , being in theyr owne libertie . and as to the propertie it is not materiall whether they bee taken in a mans owne ground , or in an other mans , and such things be his no longer then they bee in hys possession or custodye : for when they haue escaped and recouered their naturall and pristinate libertye , then they cease to be his , but then the lawe vnderstandeth such things to haue recouered their naturall libertie , when they are eyther past the view , or els being in view they be hard to be followed , and recouered . the nature of bees is wilde , and therefore when a swarme of them lighteth vpō thy tree , they are no more thine before they be couered with thy hiue , h then hawkes , which haue made their neasts in some of thy trees , or doues in thy doue-house for though the yong birds be thine , whereof thou mayest bring an action of trespasse , quare vi & armis pullos esperueriorum suorum in bosco indificantium , or columbas columbaris sui caepit , which writ is not only maintenable , whē the doue-house is broken or the dore open , and the young doues be taken out of their neastes , but an action of trespas wil also lye for the troubling or hurting of the old doues within the doue-house , though they be ferae naturae , as wel as for chasing & killing conies in a mans warren , i yet he shall not vse this word suos , k in his writ , yet because he hath them by reason of his warren or doue-house wherein he hath a propertie , he shall haue an action for the chasing or the taking of them . l the nature of cranes and doues is wilde : neyther is it materiall that by custome they are wont anolare & reuolare , to flye from home , and returne home . and in such things which are came , and by custome are wont to depart and yet to returne , this rule is allowed , that so long they may be sayd to be thine , as they haue animum reuertendi . and felonie cannot be committed in the taking of beasts that be sauage , if they be sauage and vntamed at the time of the taking , nor for taking of doues being out of a douecoate , nor for taking of fishes being at large in the riuer , for such taking is not contrectatio rei alienae sed quae est nullius in bonis . m and the stealing of a doe which is tame and domesticall is fellonie , but then saith m. stamford , it seemeth that hee that stealeth it should haue certaine knowledge that it is tame n but if the doe be killed and then stolne , this is felonie . o and though a man may haue for the taking of his ferret an action of trespasse , because hee is profitable to take connies for the vse of his maister . yet because a ferret is ferae naturae , a man cannot haue an appeale of fellonie for him , no more then he may haue for the stealing of his hauke and popiniay , or such like , for such things are ferae naturae , and a man can haue no propertie in them , neither can he say in his writ feras suas , for that implyeth a contradiction , and because they are sauage , therefore they are not tithable . but when such things are made came by my labour and cost , the propertie of them is changed , and the nature altered , and then if a man take them out of my possession , i may haue an action . for a man may haue an action quare molossum suum cepit , because he is necessarie for the keeping of his house , or the keeping of his folde or a fish pond . p but the nature of hennes and geese is not sauage , and therefore if they shall flye away , though they be past thine eye-sight , notwithstanding in what place so euer they be , they cease not to be thine : and who so euer deteyneth them , is punishable by way of action . q in the ciuill lawe there is this case , certaine sheepe were caried away from the shepherd of a. by wolfes , an husbandman of the next village hauing pursued them with great and strong dogs which he kept for the safetie of his beasts , recouered them from the wolfes , for the dogs did enforce the wolfes to leaue them , and when a. did demaund the sheepe , the question was whether the sheepe became his that did so recouer them , or remained still the sheepe of a , for the dogs did get them by a kinde of hunting : yet pomponius thought in this case , that as those things which are taken either on sea , or on land , do cease to be theirs that tooke them , when they are come to their naturall libertie , so by the same reason our goods takē away with beasts liuing either in the sea , or on the land , do cease to be ours whē the beasts that tooke them haue escaped our pursuit . and who wil affirme that that continueth to be ours which a bird flying hither and thether , carieth out of our barne , or out of our field , or by any meanes carieth it away from vs , if therefore it cease to be ours when it commeth to the mouthes of beasts , in common apperance , irrecuperably , it must needs become his who first recouereth it , and so be made proper to the occupant , euen as a fish , or bird , which hath escaped our power , if it be taken of an other , is streightway his , but he thinketh it more reasonable that it should continue ours , so long as it may be recouered . r likewise a thing pro derelicto habita , waiued & forsaken , is nullius in bonis , as when a man for feare of a tempest casteth his things into the sea , or some danger being imminent , leaueth them vpon the land , or els of his owne free will leaueth that which is his owne sine spe rehabendi . ſ if a thing be fallen out of a chariot or wagon , it may be sayd to be lost or waiued . t and if a man haue a libertie to take wayfes and strayes in his mannor by prescription , and certaine beasts be wayued or do stray within the precincts of his mannor , and a stranger taketh them , he that hath the mannor shall not haue an action of trespasse generall for the taking of them before he hath seised them , u though the lawe be taken to be otherwise by some . w but . e. . a writ was mainteined by an abbot by reason of his franchise in the like case , but that was an action vpon the case , which prooueth that the propertie was not in him before seisure . x but it hath been held for cleare lawe , that felonie is not committed in the taking of treasurie found , wreck of the sea , wayfe and stray , and such like , vnlesse they haue been before seised , and the reason is , quia dominus rerum non apparet , ideo cuius sunt incertum est , and therefore the punishment in such cases is by fine , and not by the taking away of life and member . y such landes , the propertie whereof hath been executed by possession , cannot be wayued but by matter of record . z and it is a certaine rule and sound reason , that such things as cannot passe but by matter of record , cannot be wayued or relinquished , but by matter of record . * such things are said to be nullius in bonis , which haue not from time out of minde bin knowne to belong to any man , as treasures hid in the earth , as when any money , gold , siluer , plate bullion is founde in any place , and no man knoweth in whome the propertie is . the lawe bestoweth it vpon the king , and it becommeth res fiscalis , parcell of the treasurie royall , and therefore it is called in the common lawe treasure troue , that is to say , treasure found , whereby it appeareth , that the king is not proprietarie of it , till it be founde , but it is before nullius in bonis . but if any mine of mettall be found in any ground , that alway pertaineth to the lord of the soyle , except it be a mine of gold or siluer , or a mine which hath vaines of gold and siluer , which shall alway be the kings in whose ground soeuer they be found : a and in auncient time , as m. bracton sayth , it belonged by the lawe of nature to him that found it : but now by the lawe of nations it is res fisci , and belongeth to the king : but heretofore it hath bene ruled quod thesaurus non competit regi , nisi quando nemo scit quis abscondit th●saurum : b for then ( as m. stamford collecteth ) it shall belong to him in whom the propertie was before , and if he dye before such finding , his executors shall haue it . c and because there might befall some square or variance betwixt the lord of the soyle , and the king about the propertie of such treasure , it is therefore decided quod thesaurus competit domino regi & non domino libertatis si non sit per verba specialia aut per praescriptionem . d and things are sayde to bee nullius in bonis by common consent , as things consecrate and religious : for though the goods belonging to a church , as belles , seruicebookes , surplices , chalices , and other things , must be supposed in a writ of trespasse brought by the churchwardens to be bona parochianorum in custodia nostra existentium . e yet in that the lawe giueth the action to the church-wardens , and to their successors , for the recouerie of such goods vniustly taken , and doth giue the propertie to the parishioners , this properlie must be intended to be to the vse of the church , that is , to the vse of the parochians , as they are the church : for though it be true that rolfe sayth , . h. . that a church parochiall can not otherwise be intended , but a house made of stones , and walles , and roofe , and such materiall things which can not take by gift or feofment no more then a church conuentuall which lacketh a soueraigne : f yet it cannot bee denyed that the parishioners are incorporate for the purchasing of personall thinges , and that in regarde of such capacitie , they may be sayde to be the church it selfe , as well as the parson and his successors in auncient time were sayd to be the church in the purchase of land and realties , which may appeare by this case : land was deuised to one for life , the remainder to an other for tearme of life , the remainder to the church of s. andrew in holburne , this is adiudged to be a good deuise , g and this must needes goe to the parson and hys successors , because the church-wardens and parishioners were neuer admitted by lawe to purchase land to the vse of the church . and belknappe sayde , that the cloathes of a dead man being found dead in the field , did belong to hys executors if hee had made a will , otherwise that they should be deliuered to the church for celebration of diuine seruice for the soule of the dead : for his meaning is ( as i take it ) that the ordinarie should intermeddle with them for the disposing of them . h and if a man take a coate-armor which hangeth ouer a dead mans tombe in a church , the enditement must be bona executorum , of the dead man : but if a graue-stone be taken away , the enditement must be bona ecclesiae . i that the words or termes vsed in bookes of lawe ought to be vnderstoode and applied as the lawe doth expound and conceiue them . the eight chapter . it is not possible for a man to be skilfull in any science , vnlesse he do perfitly know the words which do occurre and are often vsed in that science . i doe not meane wordes of arte onely , which by lexicons and explanatorie bookes may easily be conceiued , but such as do import and concerne the obiects of the science , about which it is principally conuersant . to pursue therefore briefely an interpretation of such words as in the lawe are materiall , i take it not to be dissonant from order to begin with the diuersitie of lawes , and to shew how these words , the lawe of nature , the lawe of nations , the lawe ciuil , the common lawe , the statute law , the customarie law ius merum , and aequum et bonum , are vsed in the lawe bookes , and are to be vnderstood , that so it may be knowne how and in what sort one lawe differeth from an other , and of what qualitie and condition that lawe is to which the student is addicted , or vpon which hee doth grounde his reason . the lawe of nature therefore is that , which the nature of natures , or the god of natures of the philosophers called natura naturaus , hath caught all creatures that haue sense by the mediation of nature created of which they consist : for this lawe is grounded in the roote and inwarde partes of nature , and therefore one sayeth well , habemus non scriptam sed natam legem , quam non didicimus sed hausimus : this is according to iustinian his definition , in hys institutes , to whom d. hotoman may seeme at the first to doe iniurie by obiecting that by this definition , to eate , to sleepe , to mooue , and to rest , are parcell of the lawe of nature : and though this be aunswered by some , a that these thinges are excluded from the definition , by this word ius , yet what absurditie woulde followe if such thinges shoulde bee graunted to bee parcell of the lawe of nature , why not as well as the repulsing of force , which apparantly proceedeth from the lawe of nature . for in truth there is no difference in the effect betwixt externall force , and the force whiche a liuing creature hauing sense should doe to it selfe , if it shoulde not performe these aforesayde actions of nature , as to eate , to sleepe , to mooue , and to rest , whereby nature is preserued and kept in time . this is playne in men , who by the ciuill lawe are sayde to kill , in denying nourishment to themselues , or others , whereby life and nature may be mayntayned . and iosephus writeth well , that it is against the nature of liuing creatures for any of them to kill it selfe . b but d. hotom . doth further cauill , following hys forefather valla , that lawe cannot bee applyed to beastes , no more then iniurie may be done vnto them . to this may be replyed , that iniurie in some sense may be done vnto them , if iniurie be taken for that quod inre non fit , which is not done according to that lawe , that is prescribed vnto them by nature . but if it bee done according to the rule of nature , though it differ from the nature of all other things , yet it is not iniurious or vnnaturall , for example . all birds except the cuckoe , doe foster and bring vp theyr young , these doe it by the lawe of nature , this doth it not by the lawe of nature , and yet doth no iniurie to her young , because shee doth it by the instinct and priuiledge of nature . this lawe is of all most auncient , beeing connaturall vnto vs , and following immediatly and indissolubly , the very principles of nature created , being an euen leuill , and most iust lawe in it selfe , though wrested and corrupted by the corruption of things : but in what kinde so euer it is vniformely executed , it is without all blemish of vniustice , as in mankinde it is vniformely apparant , that euery man is inclined by nature to prouide for posteritie . but when some prouide too much , some too little , some with pinching from themselues , some in seeking to make their children farre greater then themselues , this is not vniforme , this therefore is vniust : neyther doe i dissent from the opinion of them that thinke the lawes of moses doe imitate and resemble the simplicitie , integritie , and vniformitie of the lawe of nature . the lawe of nations is that which naturall reason hath propounded and appointed in common to all men : i doe not saye that nature hath appoynted , but nature with reason , or naturall reason . and it is also seuered from the lawe of nature , because it is appropriated onely to men , yet communicated to all nations , for there is no nation which vseth it not . the distinguishing of demesues , the diuersitie of realmes and kingdomes is parcell of the lawe of nations . likewise warres , contracts , and such like , are braunches of that lawe , the definition of it may be shortly this , a lawe in which all nations doe consent . but this pleaseth not bodinus , for saith he , all nations haue consented to idolatry , yet who will accompt that a lawe ? c but this definition is meant of humaine things , not of diuine , for who will so vnderstand it ? for all the nations of the world may not prescribe a lawe to god , nor capitulate any thing touching these thinges that concerne him , hee is a law-maker for hymselfe , and therefore hath sayde quod praecipio tibi hoc tantum facito , non addas , nec minuas . d but in humane things that whiche all nations doe allowe for a lawe that is for gouernment and publique respect ( for which intent the worde lawe is vsed in the definition ) that is to be receyued and acknowledged for the lawe of nations . the lawe ciuill i doe not take so largely as some doe interpret it , to bee a lawe which euery citie or people hath appropriated to it selfe : for though the originall denomination of it came from this word citie , yet by that was meant onely one citie where that lawe was practised and obserued , and that was the auncient citie of rome , for which cause the ciuil law is at this day called by some ius romanum . e and though many cities and commonweales be now gouerned by that lawe , yet therefore it can not be sayde to be ius ciuile , sith it had the name before . the common lawe is that which by common vse or common reason is made , not by common assemblie , as statutes or actes of parliament are established : and it differeth likewise from statute lawes in this , that in such lawes there are many times prouisoes and exceptions of certaine persons . but the common lawe bindeth all alike , and is not applyed and vsed as a plaister to one part , but as a strong purgation to all the partes of the bodie politique , and it may challenge a thirde difference , for that the common lawe ariseth from the people and multitude , but the statute originally from the king , because before euery parliament , writs of summons issue from the king for preparation to that solemne meeting of the states . againe , the king may dispense with penall statutes , f by clause of non obstante , but hee may not alter the course of the common lawe , g though the worde of common lawe extende by the generallitie of it , to any lawe that is commonly vsed in any place , yet vse hath restreigned it to the law of this realme of england , to the dominions of which it is confined , & beyond this neast streatcheth not her feathers . the customary law is nothing els but a custome long time continued , which may bee thus more fully defined , custome is a law not written , by the manners and vsage of a certain people or the greater part of them vpon good reason and iudgement , begun , and continued , and hauing the force of a law. i said ( a law not written ) because the bare memory of man is the register of customes . i said by the manners and vsage &c. ) because no custome doth grow without the consent of certains people or the maior part of them ▪ i said ( begunne vpon good reason and iudgement ) because such things as are introduced by error , are not to be obserued . i said ( continued ) because without diuturnitie of time , custome can haue no force or strength . i said ( hauing the force of law ) because it must bee of equall power in the place where it is vsed with the law. acustome against the law of nature is of no force , because naturalia sunt immutabilia ; a custome against the law of nations is of no validitie , because that is grounded vpon the law of nature . a custome against the law positiue is either against publi●● v●ilitie or priuate profit , if it be derogatorie to publike vtilitie , it is void : if it be onely against priuate profit it is good and effectual , and a custome once disallowed and defeated by law , cannot be recontinued or reuiued by any meanes . it hath bin questioned how many actes or deedes of men be required to bring in a custome , and the opinion of the most learned hath bin , that so many actes and so notorious , that the thing which is done may be intimated into the notice of the people , so that it may seeme to be allowed by the secrete consent or likeing of the people . but one notorious act cannot induce a custome , for that is against the name of a custōe : for consuetudo is nothing els but communis assuetudo . it hath bin also doubted whether an act contrarie to a custome do interrupt the custome , to which it may be thus answered , either the custome was not yet perfitte , and then it doth interrupt the custome , for the consent of the people did not yet euidently appeare , or els it was complete and perfit , and then it cannot be defeated by one act , but by so much time and in such maner as it was induced . ius merum is that law which hath no mixture nor regarde of circumstances , but groundeth a rigorous conclusion vpon thinges done without further examination how or why they were done , as if a man sell a lease of lande for yeres , and certaine cloth for tenne pound , the contract is entier , and if the title of the vendor be not good as to the lease , yet he shall haue the entire summe though the vendee be dispossessed of the lease at the time of the action brought for the money , h because in strict reason the contract was entire , so if a man sel his owne horse , and the horse of i. s. to a. for tenne pound , and i. s. taketh away his horse , yet an action of debt will lye for the whole summe , because the contract was in it selfe entire . i but if a man reteigne one in seruice for a yeare , for tenne pounde to bee payed at two feastes of the yeare , and the master dyeth after the first feast , and before the latter , the seruaunt shall haue his wages but for the first feaste , because the contracte was at the first time apportioned . k the law which is termed aequum & bonum , is that which doth mildely interprete , amend , and mollifie the hard and rigorus speaches , and censures of the other lawes : and is sometime sharpe and seuere , where the other lawes are remisse and conniuent : as may appeare by that saying of salust , sentencing the proceeding of the romaines in a matter of estate fit reus magis aequo bonoque quam iure gentium bomilcar comes eius qui romam ●ide publica venerat , & this is not so much comprehended in writing , as in the true vnderstanding of that which is written . it is necessary by the iudgement of an other law , which saith etsi nihil facile mutandum est ex solennibus , tamen vbi aequitas euidens poscit subueniendum est . l and againe iustus iudex aequitatem solutius sequitur . m this though it haue place somtimes in the precepts , rules , and cases , of the ciuil and common laws : yet it hath more affinity with the law of nature , and the law of nations , which are ignorant of the knots , and intricate points of these aforesaid lawes . now that we haue discoursed of these seueral lawes , it remaineth that we should shew what things are the principall obiects of the law , which may be reduced to two heads , for either they are real or personall . that which is reall , is either land , or that which issueth out of land : land is either firme and fixed earth , or that which is immediatly and coherently annexed to the earth , as houses . by the differences of this diuision a pischarie or fishing is excluded , whether it be libera piscaria , that is a libertie of fishing in an other mans pondes , or waters , which he hath in common with others . for xx . persons may haue a fishing after that sort in one riuer , and it is therefore called libera because none may disturbe them to whom the fishing belongeth : n or seperalis piscaria , which in our bookes hath seuerall significations , for either it may signifie a seuerall fishing , which one man alone hath in an other mans soile . o or els where a man hath a seuerall fishing to himselfe in his owne ground , and so it is a thing compounded of water and of earth , and therefore it is said , that where a graunt is made of a stagne or piscarie , the land passeth . p and in a formedon brought of a gorse , which in latin is called gurges , a gulfe or d●epe ▪ yarmouth , wherein fishes are commonly taken , the demaundant shall recouer the land and soile it selfe . q and it hath bin adiudged that a fishing so taken lyeth in tenure . r and a writ of aiell was brought of a fishing as a thing lying in demes●e . ſ and also of a stagne or poole : t but it cannot be termed land , because the water is not coherently fired to the soile , but otherwise it is of an acre of lande which is couered with water : for though that be ouerflowed with water , yet it is not naturally ouerflowed , as a ponde or fishe-poole is . v and therefore it is said . h. . that a man may haue a praecipe de vna acra terrae cum aqua cooperta , or de vna acraterrae generally at his election . w but a tenement cannot be said to bee freehold , except it touche the earth , and therefore a chamber built vpon a hallor parlor , cannot be said to bee freehold , because it cannot be perpetuall , for the foundation may perishe , and for that cause it cannot be demaunded by plaint or writ . a yet . e. . an exchaunge was made of lande for a chamber , b but that prooueth it not to be freehold , for an exchange may be of things of diuers natures , as of land for rent . c and so of a rent for a common . d a castell whether it bee a thing either of it selfe , or parcell of a seigniory or mannor may well be called land or freehold . e for though land may not be parcell of land no more then one leete or hundred may bee parcell of an other . f yet land may be parcell of a manor . g and a parke may be parcell of a mannor . h and land may be parcel of an honor. i and of a castle . k it is nowe shewed what may properly be called land , and it is not impertment to declare how many sortes of land , which we haue before called firme ground , may be demaunded by law , of which the law hath a seueral contemplation . land therefore as it is subiect to the consideration of law is sixefold , arua , florida , consita , compascua mineralis , in frugifera . arua is the arable ground which is tilled with the plough . florida , the garden ground , which procreateth flowers , herbes , & all such thinges as the bee doth feede vpon . consita , is the wooddie ground which is throughly replenished , with trees , plants , shrubbes , and such like . compascua is that which bringeth forth grasse and fodder . mineralis is that , wherein mines are conteigned whether they be regall mines , as mines of gold or siluer , or baser mines , as brasse , leade , copper , tinne , coales , or the like . infrugifera is that which is barren , and cannot be helped by manurance as the soile where rushes , weedes , ferne , and such things doe grow , and it is good to know the diuersitie of these seuerall sortes of grounde , that when such thinges are to be demaunded by writ , they may be demaunded by their proper names and kinds , and therefore if a feoffement be made of two roodes of land , and after a house is built there vpon , and part of it is become medowe , parcel pasture ground , and parcell wood , the demaund must be by the name of a house , medowe , pasture , and wood , l and there is a writ in the register , de minera plumbi & cuiuscunque generis metalli cum pertinentijs . m and ruscaria the soile where rushes do grow must be demanded by number of acres . n and where a stagne hath bin , or land couered with water , if the water be turned out of the course or dried , the land may be demaunded by the name of medow . o that which issueth out of land , or the profits of land are of three sortes , naturall , industriall , and artificial . the naturall profits of land are such as doe rise by the force and benefit of nature principally , and not by the diligence and labour of man , as apples , hearbes , trees , and such like . industriall profits are such as doe principally require the diligence and culture of man , which vnlesse it be continually applyed , natura nihil operatur , as corne , hoppes , woad , saffron , and such like . artificiall profits are these , which are reserued , graunted or issuing out of land by the acte of man , and the approbation of law , as a common of pasture , a warren , a rent , and thinges of like sort . common of pasture is of fower sortes appendant which is belonging onely to arable grounde , or to land that consisteth as well of arable ground , as of other thinges , as a mannor or measuage , but the appendancy doth principally grow by reason of the arable , and therefore it belongeth to such beastes onely as doe manure or marle the grounde , as horses , oxen , kine , and sheepe . p and if a man haue common to certaine arable landes in one village , hee cannot vse the common with beastes that manure his arrable in an other village . q and this ought to bee intended of auncyent arrable ground , not of land newely improued . r for continuance of time immemoriall maketh the appendancy , wherefore if the arrable land to which common is appendant , do by purchase come into the possession of the owner of the soile , in which the common is to be taken , the common is extinguished in his person : but if after the tenements be seuered by alienation as they were before , the common is reuiued by some aucthoritie , ſ because the same auncient arable land to which before it belonged still continueth : but by some it is otherwise , because being once extinguished it cannot be de nouo and in an instant made appendant . t common appurtenant is where a man prescribeth to haue common of pasture belonging to his land with all maner of beastes , it differeth from a common appendant in this , that a common appendant is onely to be taken by such beasts as manure or marle the ground , and by such number of beastes as will serue to manure or marle the ground , to which the common may be claimed , and belongeth onely to them as long as they are demurrant vppon the land : but a common appurtenant may be taken by all maner of beastes . a likewise a common appendant must be onely claimed by reason of land which may be marled or manured : but a common appurtenant may bee claimed by reason of a mesuage or house . b furthermore a common appendant groweth onely by continuance of tune , and the essence of it is prescription ioyned wyth appendancie , c but a common appurtenant may bee graunted at this day , and springeth vp in an instant . d and a common appendant can not be seuered from the land to which it belongeth : e but a common appurtenant may be seuered : f and they differ in this , that a common appendant must be vsed and taken , according to the rate and quantitie of ground , in regarde of which it is granted or claimed . g but a common appurtenant may be claimed for beastes sans number : for by the opinion of monbray none shall haue a writ of admeasuremēt of pasture , but he that hath a common appendant : h so that it may be probably collected , that a common appurtenant because it cannot be admeasured , may be wel enough sans number : and it may be likewise to a certaine number of beastes , for if a man at this day will grant one a mesuage with a common appurtenant for tenne beasts , i doubt not , but this is a good common appurtenant to the mesuage . common by vicinage is where two townships or moe do entercommon , and haue entercommoned from time out of mind , which is not to be vsed , by putting the beastes of the inhabitants of one towne , into the landes of the inhabitants of an other towne , for so they may be distrayned damage feasant : but they must put them in their owne fieldes , & if they stray into the fieldes of the other village , they must suffer them to be there , and they must put in their beastes , hauing regarde to the freehold of the inhabitants of that village where the common is to be vsed . i this kind of common mast . littleton maketh appendant , k but by other aucthoritie it is a feueral and distince kind of common . common in grosse is where a man claymeth to haue common for all maner of beastes , whether the number be certaine or vncertaine by speciall graunt in writing , or by prescription in him that claymeth or his auncestors , or they whose estate he hath not by reason of any particuler land : & this common may be vsed by the beasts of a stranger , which the proprietarie of the common may giest , as we tearme it . m a warren is a profite likewise which may be taken out of other mens ground by prescription , n and if the owner of the soile 〈◊〉 any one by his commaundement ; or as his seruant doe come vpon the soyle , and do ●hase the conies , he cannot iustifie the chasing , o though he may iustifie his entrie into the ground . p and a rent is also a profit issuing out of the soyle of a stranger , and sauoureth of the nature of the land ; out of which it issueth & therfore if rent issue out of land in auncient demesne , it is auncient demeshe , & so it is of rent granted out of land in gauelkind , it shal be deuided as the lād it selfe : q and so it is of rent graunted out of land deuisable by custome , though the rent bee graunted but of late time . r and so if rent be receiueable out of customarie land , as borough english , or where dower is to be had of the halfe part , and such like , the rent shall be of the custome and nature of the land , and therfore in the demaunde of such rent by praecipe , or in a repl●●in , the tenure by auncient demesne of the land is a good plea. ſ and so if land in taile be deuided amongest parceners , the 〈◊〉 reserued to one of the 〈◊〉 parceners shall be in 〈◊〉 , and of the same condition as the land was . t parsonall thinges 〈◊〉 thinges either in possession , or in action : thinges in possession are either goodes or chattels : the name of goodes is naturall and ciuill , by the naturall signification all such thinges are comprehended vnder the name of goodes , which may profite . u but as the name of goodes is taken ciuilly , it stretcheth to the whole he ape and bodie of a mans wealth , together with the charge and deductions : the reason of this differenceis because nature conside●●● thinges as 〈◊〉 they are : but a common weale or citie after such sort as is most expedient a and though the charge which followeth goodes do de●race somewhat from the value and estimation of the same , yet because it is to be discharged and satisfied out of the goodes , it is therefore ioyntly reckoned and considered with the goodes themselues . chattels which in the common law are tearmed catalla , are diuersly taken , for the profits of land if they be gyuen generally vnto the king by acte of law , they may be called chattels , and therefore the profits and issues of the landes and 〈◊〉 of them which flie for felony are forfaited vnto the king , vntill such time as they be acquited , and that by the statute of praetog . cap. . which sayth that the king shall haue omnia catalla talium fugitiuorum , and vnder the word catalla is comprehended the corne which was growing vpon the land , at the time when the forfeyture of the goodes did begin to take place , b and if a man be outlawed in an action of debt , and the outlawrie be retourned , so that the writte issueth to the escheator to seise the goodes , chattels , and land of the partie outlawed , the issues of the land shall be taken to the kinges vse vntill he haue sued his charter of pardon : c for an outlawed person shal not forfait any land , but the profites onely , as rent and corne , if he be outlawed in a personall action : otherwise it is if he be outlawed of felonie , for then the king shall haue the escheat of the land , or the annum , diem , & vastum . d but if the profites of land be generally graunted by the act of the partie , then they are the substance of the land and doe not passe without liuerie : and if a man graunt the profites of land , the land it selfe passeth . e and therefore it hath bin held by fortescue and danby iustices , that tenant in fee simple may graunt vesturam terrae , and the grauntee shall haue it after his death : but the tenant in taile , for life , tenant in dower , and tenant by the curtesie cannot make any such graunt , but if they dye the graunt is determined . f and if a feoffement be made of land vpon condition that neither the feoffee nor his heires shall take the profites , the condition is voide , and the feoffement simple and absolute , g and in such cases the profites of land may not be tearmed catalla , no more then the landes themselues : but vnder the word chattels , a lease for terme of yeares is comprised . h and likewise a right of action for goodes : as if goods be taken wrongfully from a felon : i or when one is indebted to a felon by bond : k or when he is accomptable to a felon by reason of any receipt , or otherwise . l thinges in action are such in which a man hath neither propertie nor possession : as if a man doe owe to an other xx . pound vpon a writing obligatorie , though he haue a propertie and possession in the m writing or charter , yet the summe contained is a thing in action , in which he hath neither propertie nor possession : and so it is of an aduowson when the church is voide of an incumbent : for the patron can not graunt it to any other , because then he should graunt but fructum aduocationis , which is a thing rather imagined by law , then subsistent by nature : and therfore the patron can not truely be said to haue propertie or possession in it . but though such thinges be to some intent merely in action , yet in some cases they are taken as thinges vested : and therefore if a man be seised of an aduowson , and the church become void and he dieth , his executors shall present , and not the heire , n for the aduowson in regard of the executors was a chattel vested in the testator . the king may graunt things in action , o and so may a common person in some cases : as if a man bring an action of debt against i. n. and the plaintife is indebted to me , and promiseth me that if i will ayde him against i. n. that i shall be paied out of the summe in demaunde : there it is lawfull for me to ayde and maintaine the plaintifie against i. n , because by the promise i haue interest in the summe demaunded . p and where a man is indebted to me in xx . pound , and an other oweth him xx . pound by obligation , he may assigne this obligation and debt to me in satisfaction : and i may maintaine suit for it in the name of the other . a table of certain words in the interpretation whereof the common law of this realme and the ciuill law doe seeme to agree . a. accusatio a bill of presentment , is a regular fourme of complaint , whereby offences , are opened and punished . acquisitum purchased , that is said to be whereof the propertie is translated from one to an other . affines are the kinsmen of the husband and the wife by mariage , so called , because two kindreds which are diuerse one from the other , are coupled by marryage , and one of them commeth to the borders or marches of the other kindred . ad nos pertinere is said that which doth belong vnto vs , eyther by way of propertie , or by way of possession , or by charge , or by administration . aedes , plural : a house consisting of diuerse rowmes , ( for domus may consist onely of foundation , wall , couer ) as the integrall partes , or as some briefly say , which consisteth of soyle and superficies , aestas sommer , a part of the yeare , which beginneth at the equinoctial of the spring , and endeth at the equinoctiall of autum , and so sommer & winter are deuided by vi . moneths . annona vittaile , is not referred onely to corne , but to the meate of the shambles , as well to fish as flesh . aperta vis , open force , which is manifest and euident , and doth not receiue any excuse of simplicitie . arborvento deiecta , hath not now the name of a tree , but the name of wood . arbor dum crescit , lignum cum crescere nescit . area , a floare is a vacant place , therefore called area quasi exaruerit , and were not able to bring forth any thing , it hath bin taken to be such an emptie place as doth lye discouered , locus ab aedificio purus , and hath no superficies : it is called a plot of groūd , court or yard . argen●um siluer , it is of three sorts , infectū , factum , signatum . infectum is that which is vnpollished and not adorned with any particular forme being in the ore , or bullion , newly seuered and singled from the ore . factum , is that which is beutified with some particuler forme , of which kind is a siluer cuppe , a siluer goblet , a siluer bowle , or a siluer mazard . signatum is that which beareth some speciall image or impression , & such is the siluer that is coined & accompted currant , argentum factū must be described by the kinde or shape , infectum by the weight , signatū by the number . arrestare , is by the authoritie or warrant of the lawe , to hinder that either a man or his goodes bee at his owne libertie , vntill the lawe be satisfied . artifices , artificers , are they which sell things laboured by them , and by their labour reduced into a particular forme , as shomakers , smithes , glouers , taylors and weauers , but artificium if it be largely taken , extendeth to the knowledge of euery arte : artifex and opifex differ , for in the one there is labour and iudgement , in the other labour only . assultus , an assault is a violence done to a mans person , by the person of an other man. b. bona fides a sincere conscience , excusing one of ill meaning . c. carcer is taken two wayes , for it is eyther locus custodiae , or locus paenae . cauillatio when a man turneth his speach ab euidenter veris , ad euidenter falsa . cella because there we do celare , we do hide that which we would keepe secret or close . ciuitas , a citie : it is taken materially , and formally : being vnderstoode materially , it doth signifie a multitude of houses made of stone and timber , being formally taken it is ciuilis societas quasi societas simul viuens , and not viuens simplie , but viuens bene , for as cicero saith , ciuitas sine legibus is corpus sine anima , and therefore aristotle sayth , non concedimus vt homo imperet sed ratio . cliens , is he that is in suite , so called quasi colens , and hee who dealeth for him in the cause is called patronus , quasi pater . codicillus , the declaratiō of a mās last wil , which without the iust solemnitie of a testament a man ob impedimenti necessitatem is inforced to write , but now the vse of codicills or testaments are without any necessitie confounded , which is contrary to lawe , for a ●odicill ought to serue necessitie , & not a rash onset . cognatio kindred , it is deuided into three parts ; . into parents , . into childrē , . into cosins . parents are they of whom we are begotten , as father , mother , grandfather , grandmother , and these which are in degree aboue them . children are they which are begotten of our bodies , as sonne , daughter , grandchild , and such as he vnderneath them , et nati natorum et qui nascentur ab illis . cosins are they which haue neither begotten vs , nor bin begotten of vs , but haue a common roote and originall with vs , as brother , sister , vncle , aunt , and such as do discend from them . colludere , is in fraudem tertij conuenire . commenda , the custodie of a church committed and commended to some . commodare is to graunt the vse of some thing for a certain time , there is difference betwixt commodare & mutuo dare , because cōmodare is to lend , to haue the same againe , as bookes , apparel , and such like , but mutuo dare is to trust , hoping to haue the like againe , as money , corne , salt , spices , and such like . compromissum , is the power that is giuen to the arbitrator , so called because both the parties doe promise to obey the opinion of the iudge , & therfore he is called compromissarius index to whom the matter is referred . communitas , a comminalty , is societas hominum communi lege viuentium . conditio , when a thing dependeth super casum incertum which may tende eyther ad esse or ad non esse . confessio , is double : either iudicial , or extraiudicial , iudiciall is that which is done before the iudge , extraiudicial which is done in presence of good and honest men . consentire , is to meete in one opinion . constitutiones , iudgements , rules and awardes concerning seueral matters whereupon this verse hath bin made . quatuor ex verbis virtutem collige legis , permittit , punit , imperat , atque vetat . controuersum ius , is that which is on both sides doubtful : certum ius is that which is certainly determined & is called positiue law. copulatiua the coniunction copulatiue is taken after two sorts , either in a deuided sense , or in a compounded sense , in a deuided sense as when i say , sir robert booke , and sir iames dyer were lord chiefe , iustices of the cōmon pleas , for they were not chiefe iustices together , but at diuerse times : in a compounded sense , as when i say two & three do make fiue . d. debito is he of whom we may against his wil exact money . decimae are of three sorts praediales , personales , and mixt praediales are they which arise of farmes or lands , as corne , hay , and the fruits of trees : personal which are due by personall labor , as by some trade , trafick , or mistery , mixt of which it may be doubted whether they be predial or personal as wool , lambe , milke &c. defensio , is the auoiding of a surmised & pretended offence . delegatus a delegate , to whom a cause is cōmitted to be determined and ordered . de plano , vel sine figura iudicij , vel summarie . deprehendere , is to take a man in ipso facto , so that he can neuer flye , nor denye the facte . discendere to discende or to spring of ones body , hereupon they which are borne of vs are called by the name of discendents , which with them that ascend make the right line , and the ascendents and discendents cannot marry together , wherefore if adam were now liuing he could not marrie a wife . dicecesis , the gouernment of a certaine prouince by the bishop , for as a territorie is so called , quatenus iudex ius terrendi habet , so a diocese as farre as a bishop hath ius administrandi sacra . dispensatio , a release of common right , either ex causa vtilitatis , necessitatis , or ingentis praerogatiuae meritorum . diuersa , such things whose subiect is not alike , or whose definition is not alike . dominium is a right to dispose perfitly de re corporali . domus instructa , a house furnished , if a man deuise such a house the household stuffe passeth , but not the wine that is within the house , because by common intendement a house is not furnished by wine . dubia causa , is that which is but semiplene probata . e. error , an opinion , whereby that is approoued and allowed to be true which is false , and that to be false which is true , and error may be two wayes , eyther in iure constituto , or els in iure quod quis in suo habet negotio , the one is an error in lawe , the other in facto . euanescit actio , the action doth faile , or abate , euanescit actio , by the power of the lawe , or of the iudges , remittitur actio , by the will of the plaintife . executor , an executor , which is after three sorts , executor testamentarius , executor legalis , that is to say the ordinarie , executor datiuus , the administrator . election , is the certainetie of our will , it may be of persons , or of thinges , places , or times : of things , as if a man should pay a summe of money , or els a horse or a hawke : or of persons , as if he should pay it to i. s. or to i. n. or of places , as if he should pay it at london , or at lincolne . or of the time , as the first day of april , or the second day of may. f. falsitas , falshood is immutatio veritatis cum doto & damno alterius , the chaunge of truth with falsehoode to the deceiuing and endamaging of an other man. fama , is a common report proceeding from suspition , and published by the voices of men , and it differeth from rumor , because that is a diuerse whispering of men , which is not so effectuall as fame . fama constans is that which is dispersed abroade neither by men vnknowen , nor of light credit , nec ignotis nec improbis . fide●●●●● is he which bindeth himselfe for another , quasi inssu alterius ponens fidem suam . fortuitus casus , a meare chaunce which by mans counsaile , care , and diligence can neyther praeuideri or praecaueri , be fore-seene or foreclosed . g. generalis lex , a general law which comprehendeth all cases , except such as be vnlawfull , and vniust . for there is nothing more absurde then to draw a iust lawe to an vniust interpretation . germani fratres are they which are of the same father & mother , consanguinei which haue the same father , but not the same mother , vterini which haue the same mother , but not the same father . gestores negotionū , factors or procurators be of three sorts , voluntarij which gratis and of their owne accord do regard the busines of their friend : necessarij which by obligation of their office doe follow matters : quasi necessarij , which haue some colour to deale in matters . graeca mercari fide . i. pecunia numerata with money paied in hand . i. illegitimi bastardes , whereof there be three sortes , incestuosi which be begotten of kinsmen and kinswomen within the degrees prohibited : nefarij , which are begotten of descendents , the chyldren of the same parent : spurij , or adulterini , which are borne in adulterie . iniuria whatsoeuer is done against law and right , whether by wordes , as by slander : or by deede , as by violence of hand . inops sine ope without helpe , which hath no wealth nor maintenance , whereby he may helpe himselfe . instaurare , is to bring a thing into his fourmer estate . insula , a plot of ground compassed on all sides with the sea , quasi in fato posita , it is of two sortes : perpetua , and natiua . perpetua , which hath bin from time out of minde part of a prouince : natiua , which hath bin lately discouered by the ebbe and drought of waters . interlocutoria sententia , which doth not define or determine the controuersie , for that is called sententia definitiua : an awarde . iudex limitaneus , which hath a limitted inrisdiction , as the lord in court baron who onely holdeth plea of a summe vnder xl . shillinges , and within the precinct of his mannour . iuramentum an oath , it is the affirming or denying of a thing with religious assertion , or attestation , and it is double : extraiudicial or iudicial . extraiudicial , as iuramentum conuentionale , when vppon a bargaine one doth sweare to an other . iudicial is of two sorts , necessarium , & suppletiu●m : necessarium , which is ad litem aestimandam , when witnesses are produced by the parties . suppletiuum , when the iudge doth enforce the partie himselfe to sweare for want of other proofes . inseperabile , that is said to be which is so inherent in the subiect , that it cannot be remoued , but they do either stand together or fall together . a thing may be said to be indiuidual or inseperable in many respects , . according to the fourme required in the act : and therefore if three be bound iointly , they must be sued iointly , . by reason of necessarie depending , and therefore the principal being defeated , the accessorie is also destroyed , because it cleaueth inseperably vnto the principal : and therfore if the marriage be not lawfull , the endowment cannot be lawfull , . by the meaning of the parties : as when a submission is made to two arbitrators , it is not to be imagined that the parties had an intent of seuerance , . by the nature of the thing : as when a thing will not suffer a particion : as a seignorie in grosse , a common , a condition , and so a iurisdiction is an entier thing : and therfore if a man will bring an action in a base court of a debt of . li. it is not good for thirtie shillinges , or a lesse summe : for a iudge or officer hath a precise power of the law , and if he passe his iurisdiction , his sentence or act is voide . integrum is that which is compounded of diuerse partes , for partes compacted & ioyned together doe make the whole , but an entier thing may be diuersly : for it may be eyther totum numerale consisting of many numbers lincked together , . totum vniuersale , as the general nature wherof the particulers ar comprehended : as homo of animal , auis of brutum , . totum integrale which is made whole and entier by many partes , and it is of two sorts , heterogeneū , and homogeneum : heterogeneum the partes whereof are not of the nature of the whole thing , as a house which doth consist of soyle , stone , woode , morter , & couer . homogeneum which is of the same nature with the whole , as water , fier , earth , wherof euery part hath the name of the whole . l. lacus is that which hath perpetuā aquam . stagnum that which hath water at sometime , and is sometime drie . fossa a receptacle for water made by mans hand . lana , wolle , which may be cloath , but yet is not wrought in cloath . and if a man by his will do deuise his wolle to any , be it wrought or not wrought , dyed or not dyed ▪ or be it spunne , it is comprised vnder the name of wolle , and it is called by the name of volle vntill it be made cloth . littus , that place to which the greatest floude of the sea do●h come . m. maiestas , a soueraigne honour : maiestie is said to be the daughter of honor & reuerence . marinum et maritinum do thus differ , marinum is that quod mare incolit , which lyueth in the sea , or which is bredde in the sea , maritinum quod mare accolit , which is adioyning , or adiacent vnto the sea . mercator , a merchant , is not as some think tearmed a merce , but of the word mercor , which signifieth to buy , and they are properly tearmed mercatores , qui res emunt quas in eadem specie cariús vendant . moneta , à monendo , money , so tearmed , because by the impression of the stampe it doth giue vs notice , either of the prince whose it is , or the price which it beareth : it taketh legem valoris , the rule of the value of the superiour , & therefore it cannot be abased or refused , but by the commaundement of the superiour . mortua res , that is said to be by which a man is not richer . motu proprio , ex certa●scientia , de plenitudine potestatis , are praegnantes clausulae , clauses of importance , against which none may be heard . mutuum , quasi ex meo ●●uum . n. narratio , a declaration of a matter eyther ore tenus ▪ or in forme of law : if it be ore tenus , it is called a motion , & thereof it is said , qui bene narrat , bene impetrat : if it be in forme of law , it is a declaration grounded vpon a writ , contayning the whole state of the matter , as the plaintife supposeth it . naturaliter possidere he is said , which possesseth a thing corporally , & taketh the profits of the thing possessed , and this of the common lawyers is called possessio in facto : but if a mans father die seised , & the sonne doth not enter , nor actually take the profites , neither doth any other disturbe him to take possession , this is called a possession in law , or eiuilis possessio . negotium meum , that is said to be , cuius ●●erum & damnum ad me pertinet . o. obuentio is a kind of re●enew : it differeth from reditus , being strictly taken , in this , that obuētiones are conting entiū ▪ reditus certorū . oculis res subijci dicitur when it is plaine & manifest , it is well said of erasmus , ad cognitionem magis faciuntaures , ad fidem faciendam certiores sunt oculi . officialis , an officiall , who in a certaine part of the diocesse is the bishops deputie . opera labour , it is double , officialis , and artificialis : officialis , is that which is spent & bestowed vpon the diligent attendance done by the seruant to the master . artificialis , is the labour of the trade , as printing , paueing , feeling , graueing , embrodering , & such like . p. pactum is the consent of two or more in a matter which pleaseth both parties , pollicitatio is when there is not the consent of two , but onely one agreeth . pactio nuptialis is a matrimonial contract . pactum retrouendēdi is when the vendee couenanteth , that if the vendor or his heires or executors will within a certain time pay so much money , as the vendee doth pay , that then he shall haue the land again , and be in his former estate . palam fa●tū is that which is done opēly . publice factū is that which is done corā populo . paries , a wall ▪ thereof there be diuerse kindes : lateritius which is made of clay , testaceus which is made of bricke , coementar●us which is made of lime , stone , and water mingled together , cratitius which is made of wood , boardes , or boughes , platted together . paraecos , a parishioner , an inhabitant in a certaine place , who hath brought his houshold to a certaine place , to reside there . praetor maior , he maior of a city , as rhodiginus saith : for others ar called praetores minores . priuilegium is in s ●singulare , whereby a priuate man , or a particuler corporation is exempted from the rigor of common law , for that which is now called proprium , hath bin called of olde writers priuum . proprium that which doth so belong to one that it is not cōmon to an other , & though that wherein we haue a ioint propertie with others may be called nostrum : yet it cannot be called propriū , for propriū doth not admit any communion , but proprium & suum be equipollent , and of the same sense . puer hath three significations , either it signifieth the estate of a man : as when we call seruants pueros : secondly the sexe , as when we call a male child puerum : or els the age , as when we call one that is yong puerum . pars is that wherby the whole is supported , it is either pars diuisa , or pars indiuisa , this diuision wil hold both in nature & law : in nature that id a diuided part , which consisteth of diuerse parcels : as the wing of a bird , or the clouen hoofe of a beast , or the finne of a fish are said to be parts diuided : in law there is also a diuided part , as the third part wherof a woman is indowed after the death of her husbād , & after the assignment made , and the third part of the land of the tenant in capite , which the king hath after his death : likewise the partes of a manor diuided by parceners : a part vndiuided is manifest to the vnderstanding & to the eye : to the vnderstanding , as the moitie or third part of iointenants , parceners , tenāts in common , before particion : to the eye , as the vnclouen hoofe of a beast , or the partes of the earth cleauing contumately together . r. ripa , a banke , it is proper to a floude , as the shoare is to the sea . ripa is that which doth flumen continere , stay the natural force of his course , and that is said to be a banke , quae plenissimum flumen continet , which stayeth the water , when it is at the highest . s. sequestratio is either a seperation , by way of compounding , or by interdiction of possession : it is voluntaria , or necessaria , voluntaria , when it is done by the consent of the parties , necessaria , whe● it is done by one that hath a competent aucthoritie to sequester . sylua caedua , which being cut may grow againe . t. tugurium , quasi ●egurium , it is taken of some for euery countrie house , but not rightly , for the house which doth consist of walles and tiles or bricke is no cotage , but a cotage is that which doth principally consist of reedes or thatch or soddes , earth and twigs layed together , and compacted by clay or slime , or which hath in it a very small deale of timber . tumultus is taken for euery perilous commotion , if it be publiquely and hastely done . turba , a multitude , consisting at the least of the number of tenne . v. vacillaus testis , which doth giue an inconstant and diuerse testimonie . vagabundus , which hath neither certaine house , nor stedfast habitation , a man , as one tearmeth him , sine re , sine spe , sine fide , sine sede . vel , a particle , it doth not alwayes disioyne , but sometimes explane . vis force or violence : it is of diuers sorts , vis detractiua , when a man taketh a thing from one against his will : vis compulsiua , when i compell a man to assent to a certaine acte , vis diuina , commonly called vis maior , whereof there is no resistance : vis expulsiua , which is done with weapon , and it is called of some vis armata , vis inquietatiua , when i am disseised by force , vis imminens the striking or assault of a man. vis is not verbis , but facto , for he is not said vim pati , which is onely touched by wordes . vniuersale quod ad vniuersos pertinet . what methode is to be vsed in handling and disposing matters of law. the ninth chapter . of methode it were better to write nothing then little , for so many diuerse methodes are proposed by many diuers authors , that plentie breedeth scarsity , and a man can hardelye tell which to choose . curiositie as in all other thinges it is vaine , so in methode it is necessarie . for to proceede without equalitie of tenor is negligence , and to obserue methode vnartificially is ignorance . they that giue a reason of the beginning , continuance , and ending of their tractats and discourses , are without doubte the most iudiciall and most plausible methodistes : or they which so temper and moderate the course of matters , that though they render not a precise reason of their doeings : yet it is apparant to the reason and vnderstanding of others . a twofolde methode is verie much talked of , and that is by proceeding either a singularibus ad vniuersalia or ab vniuersalibus ad singularia , the one of these i accompt no methode at all , howsoeuer it hath vsurped the name , being but a natural discerning of thinges done in facto by the ordinary direction of the senses , and making thereof a generall conclusion , which is easie and familiar to euery mans capacitie , so that the praise of that action is diligence and not art , for is it any difficult thing to reason and conclude , wood is heauie , stone is heauie , iron is heauie , & sic in caeteris : therefore all thinges made of earth are heauie ? how pro●e and readie is the perceauing of these particulars to euerie mans sense ? and how easilie may the conclusion be framed by his vnderstanding ? but in deede the discoursing from vniuersalles to particulars is more hard , more artificiall , more compendious , for it is done in lesse compasse and fewer wordes , which is a great argument of a good methode , and therefore i doe not agree to aristotle that athenian doctor , when hee saieth , ars tum existit , cum ex multis experientiae notionibus vna● quae ad vniuersum genus accommodetur nascitur praeceptio . a vnlesse hee meane it of vulgar and mechanicall trades and occupations , whereof onely i admit it to be true , but i rather approoue that which he saith , and doth likewise : progrediendum est ab vniuersalibus ad singularia . b but there be some which will not allow any discourse but that which is furnished with mathematicall and demonstratiue reasons . some would haue euery thing handled by examples , as ramus , a man happier in writing , then in reproouing one that writ better then hee : who in handling logicall places , doth illustrate them with many examples , but with neuer a rule . what manner of teaching is this , to shewe vnto thee that others did thus : but not to shewe why they did so : which default is for want of rules , in which the reason and knowledge of doing thinges aright is conteyned . a man cannot make a shooe by a number of lastes , but hee must haue instruction of one that is skilfull in the trade . some againe will haue euery thing confirmed by the authorities and testimonies of them that be learned , thinking that onely to be the fit way of teaching . but the certaine and necessarie reasons of the mathematikes , are not in all artes to be required . c neyther is there an 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or accurate kinde of handling things in all sciences alike to be vsed and obserued : but in euery science things are so to be ordred and digested , as the subiect or matter doth require where about it is employed , and so farre forth as may be agreeable to the profession of the science . for a geometrician and a carpenter doe diuersly handle and vse a right line , the one , as it may be profitable to his worke which he carueth , the other searcheth what kinde of thing it is , and of what nature and so other sciences must be ruled by the subiect which they contemplate , least there be more 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in them : neyther is a cause or reason to be exacted in all things , for of many it is sufficient to haue this knowledge quòd ita sunt , though we cannot know propter quod ita sunt , as of principles which are the first and highest rules in artes and sciences , and therefore no reason can be yeelded , because they are prima , the very first in the discourse of reason , and therefore 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 for thēselues to be beleeued ▪ surely methode is so conuenient a thing in the studie of the lawe , that without it neither can the vnderstanding be well taught , nor the memorie well directed . it is not enough to haue a great heape of things that are to be read , vnlesse the vse or order and manner of reading them ●e well vnderstoode : and as in things that ●e fit for banquets , tho●gh there be great varietie of sweete meates , yet there is nothing more vnpleasant or vnholsome if they be mingled together , so the student must haue a care least the order of his reading be confounded , least the last things be handled in the first place , and these thinges which should be in the middest be put in the last place , whiche whosoeuer doe , they cannot onely not comprehende the thinges which they studie , but vtterly debilitate and weaken the strength of the memorie : therefore it is good for students to vse an artificiall analysis , or resolution of things , into their principles , which may teach to deuide the whole into his partes , and to subdeuide partes into parcells , and in the end to make a consent and coherence of the entire thing and his partes : for though the skilfull partition of things be profitable and pleasant for the memorie , yet the synthesis , that is the apt composition , coordination , and mutuall dependance of them doth more satisfie the vnderstanding . d therefore polybius a iudicious aucthor saith well , that they which thinke by the knowledge of particulars dispersed to attaine to the full and perfit knowledge of the entire thing , doe no lesse erre , then hee who viewing the partes of a handsome and comely body seuerally and apart , doth therefore imagin that hee knoweth the whole feature and portraicture of the same man , who if hee had beheld these parts ioyned together , and compacted , and moued by the spirit of life , would haue iudged farre otherwise . for though a man may haue a confused notion , or conceite of the whole , by viewing the seperate and disioyned partes , yet it is not possible that hee should haue certaine knowledge of the same , no more then a man by seeing perticular mappes of cities , may certainely perceiue the figure , situation , and order of the whole world . but he that can easily resolue things , may easily compound : for when he knoweth the particular sense and vse of the thinges resolued , hee may easily gather a generall knowledge of the whole thing , that is , a generall knowledge of manye particulars , whiche make one entire thing . the forme of this analysis following , whiche is of maister littleton his two chapiters of fee simple , and fee taile , i doe offer to the student , as a thing to be considered of , because it is incident to this purpose , which though it gaine not his good liking , yet if it minister but occasion vnto him to aduenture vpon the conueyance of some other analysis , that may receiue the generall approbation , and iust applause of the learned , i shall thinke my labour herein well bestowed , and woulde gladlye reape profit by other mens presidents . the analysis of littletons chapiter of fee simple . tenure in fee simple may bee considered by the definition inuented . fee simple is as much to say , as a lawfull and pure inheritance . expounded . he that will purchase lands in fee simple must haue these wordes in his purchase , ( to haue and to hold to him and to his heires , for these words his heires make the estate of inheritance , and he that lacketh this word ( heires ) and hath to haue and to hold to him and to his assignes for euer , hath estate but for terme of life . by the tenant in fee simple who is after two sorts to be considered . generally . tenant in fee simple , is he which hath landes or teneme●●s to hold to him and to his heires for euer . particularly . by purchase as when a man both lands and t●●ements by his deede , or by his agreement , to the possession of which he commeth not , by title of discent from none of his auncestors , or his ●osins , but by his owne act . by discent who may be thus described . he that is tenant in fee simple must be of the whole bloud w●● may bee proued by two examples . if a man haue issue two sonnes by two venters , and the elder purchaseth lands in fee simple , and dieth without issue , the yonger brother shall not haue the land , but the vncle of the elder brother , or some other his ●ye cosins shall haue it , for that the yonger is but of the halfe bloud to the elder brother . . if a man haue a sonne and daughter by one venter , & a sonne by an other venter , and the sonne by the first venter ▪ purchaseth lands in fee simple , and dieth without issue , the sister shall haue the land by discent as heire vnto her brother , for that the sister is of the whole bloud to the elder brother . by the properties of fee simple . inheritance in fee simple may lineallie discend but not lineally ascende which may be illustrated by sixe prerogatiues . by the vncles prerogatiue if the fathers sonne purchase land in fee simple , the vncle shal haue the land as heire vnto the sonne , and not the father , because it cannot lineally ascende . by the fathers prerogatiue which is threefold . if the foresaid vncle dye without issue , the father liuing , the father shall haue the land as heire vnto the vncle , and not vnto the sonne , for that he commeth to the land by collaterall discent , and not by lineal ascention . if landes discend by the fathers side , the fathers side shall inherite , and none of the mothers side . if the sonne die without issue , and haue purchased lands in fee simple they of the bloud of the fathers side shall be heire vnto him before any of the mothers side . . by the mothers prerogatiue which is twofold . if the sonne hauing purchased lands in fee simple haue no heires on the fathers side , then shall the land discend vnto the heire on the mothers side . if a man take a wife inheritrix in fee simple , which hath issue a sonne and then dieth , and the sonne entreth into the tenements as sonne and heire to his mother , and after dieth without issue , the heires of the mothers side ought to inherite the tenementes , and not the heires of the fathers side . by the brothers prerogatiue which is after two sorts . if there be three brethren , and the middle or yonger brother purchase land and dye without issue , the elder brother shall haue the land by discent , for that he is more worthie of bloud . if there be two brethren by diuers venters , and the elder is seised in fee simple and dyeth without issue and his vncle entreth as heire vnto him which also dyeth without issue the yonger sonne shall inherite the tenementes as heire to the vncle , because hee is of the whole bloud to his vncle . by the sisters prerogatiue . if a man be seised of land in fee simple , which hath issue a sonne and a daughter by one venter , and a sonne by an other venter , and dieth : and the elder sonne entreth , and dyeth without issue , the daughter shall haue the land , and not the yonger sonne , but if the elder brother die before entrye be made , then the yonger brother shall haue the land . qui a possessio fratris defe●do simplici facit sororem esse heredem . by the prerogatiue of the whole kindred . if a man purchase land in fee simple and dye without issue , euery one that is his next cousin collateral for default of issue may inherite . of such thinges whereof a man may haue a manuall occupation , possession or receite as of lands , tenemēts , rents , or such other , a man shall say in his pleading & in way of barre , that one such was seised in his demesne as of fee , but of such things that lye not in manual occupation , as of an aduowson of a church , or such maner of things , there he shal say , that he was seised as of fee and not in his demesne as of fee. fee simple is the largest & greatest inheritance that a man can haue . for default of lawful heires the lord shal haue the land held in fee simple by eschete . obseruations vpon the analysis . this definition , which maister littleton vseth , soundeth like a good logicall definition , as consisting of the true genus , and the proper difference : for this word ( inheritance ) is the genus , which extendeth as well to fee simple , as to fee taile , and this word ( pure ) is a difference , whereby it is distinguished from fee taile : for fee simple is a pure inheritance , that is without limitation or restreint , but fee taile is a limitted or a restreigned inheritance . this word ( lawfull ) in the definition is not idle : but the meaning of it is , that it is an inheritance according to the meaning of common lawe , for if by ( lawfull ) should be meant rightfull , then a fee simple by diseisin should be excluded , which i thinke was not maister littletons intent . and againe , if this worde ( lawfull ) shoulde extend to all lawes , inheritance should be heere taken according to the interpretation of other lawes also , which cannot be . maister littleton well beginneth with the definition , for there are but foure things to be doubted of , first , whether a thing be in rerum natura , secondly , what it is , and of what nature , thirdly , whether it be such and so qualified or no , fourthly , why it is such , and so qualified : and he that wel openeth these foure points ▪ shall in all learned discourses shewe hymselfe excellent and absolute . the nature of fee simple may bee somewhat vnderstoode by applying it to the subiect to which it apperteineth , for tenant in fee simple , and tenure in fee simple , beeing coniugata , hee that well knoweth the one , must of necessitie well vnderstand the other . maister littleton lastly describeth estate in fee simple by certaine adiuncts or properties which do greatly serue to illustrate , and explaine the things whereof wee intreate : they are of two sortes , externall and internall . internall are they whiche flowe from the nature of the thing it selfe : of such sorte are the first and third properties mentioned in the analysis , for in that fee simple may lineally discende , and not lineally ascende , the nature of the tenure is the onely cause , for it beeyng to a man and so hys heyres , the more worthie heire is he that is of the bodie , the lesse worthie he that is of the bloud and not of the bodie , but the father in regard of the sonne can be neither of these but in regard and by mediation of the vncle he may be heire to the sonne , because he is of the vncles bloud , so that in the direct line it is euident , that the fee simple cannot ascend : and it is a very essential propertie to fee simple to be the largest and greatest inheritance , because it is to a man and his heires without limitation . externall properties are these ; which do so go before a thing , or so follow it ; or so cleaue to it , that notwithstanding there is no necessitie of any of these : as for example , before the killing of a man , commonly there is some brawling and contention of words ▪ with the acte doth concurre the sighing or groaning of him that is slaine , and the flight , feare , lurking , trembling , and vnconstant answere of him that did kill him do follow the acte , howbeit some be slaine , without the concurrence of these circumstances . there be two sortes of adiunctes , some belonging to the person , some to the thing it selfe , to the person as the kinred , countrey , se●e , age , education , the habit of the bodie , the fortune , the estate , the qualities of his minde , the manner of his life . the adiuncts of the thing are the causes , the place , the time , the manner of doing a thing , and such like . of these , some be common , and some be proper : common , as if one should commend achilles , because he was of good birth , because he was a great captaine , because he was in fight against the troians , for euery of whiche , diomedes is as much to be commended as achilles . proper adiuncts be , as if thou shouldest commend achilles for his great valor in killing hector the stoutest of the troians , and for his good fortune in killing cygnus , who being inuulnerable , did barre all the gretians from comming downe the wall , and because beeing young , and not bound by any othe or leageance , he fought so valiantly for the gretians . these two later of the proper adiuncts , i call externall , as not flowing from the essence of a thing , but befalling externally to it when it is in esse . of this kinde there are two in the analysis , the seconde and fourth . the analysis of littletons chapiter of fee taile . fee taile may be diuers waies considered by the first originall . tenant in fee taile is by force of the statute w. . cap. . for at the common law before the said statute , all inheritances were fee simple . a by the definition . inuented . feodum taliatum est haereditas in quadam certitudine limitata . expounded after ij . sorts . if tenant in taile die without issue , the donor or his heires shall inherite as in their reuersion , for in euery gift in the taile the reuersion of the fee simple is in the donor . if a man giue lands or tenements to an other to haue and to hold to him and to his heires males or females , he to whom such gift is made hath fee simple , for that it is not limitted by the gift of what bodie the issue male or female shall be . by the diuerse kindes thereof in respect of the nature of the entaile . taile general which is to be considered by the definition . inuented . taile general is where landes be giuen to one and to the heires of his bodie begotten . expounded . therefore it is called generall taile , because whatsouer woman the tenant taketh to wife , if he haue many wiues , & by each of thē haue issue , yet any of these issues by possibility may inherite the tenements by force of the said gift , because that euery such issue is of his body ingendred . so if lands be giuen to a woman , and to the heires of her body , howbeit that she haue many husbands , yet the issue that she hath by each husband may inherite . by an example or speciall kinde thereof if tenements be giuen to a man and to his wife , & to the heires of the body of the man ingendred , in this case the husband hath estate in the general taile , & the wife estate but for terme of life . taile speciall which is to be examined according to the definition . inuented . tenant in taile special is where lands & tenements be giuen to a man and his wife ( iointly or seuerally ) & to the heires of their two bodies begotten . expoūded after two sorts . in such case none may enherite by force of such gift , but those which be engendred betweene them two , & it is called special taile : for that if the wife die and he take an other wife , and hath issu , the issue of the second wife shal neuer inherite by force of such gift , nor also the issue of the second husband if the first die . in the same maner it is where lands & tenements be giuen by a man vnto another with a wife , which is the daughter or cousin to the giuer in frankmariage , which gift hath inheritance by this word ( frankma● ) vnto it annexed , howbeit they be not expressely said nor rehearsed in the gift , that is to say , that these donees shall haue these lands or tenements to them & to their 〈◊〉 betweene them two ingengred , & this is called special tail , because the issue of the second wife may not inherit , & the woman donee in frankma● must be of kin to the donor , & they shal do no seruice but feal it , till the . degree to be accompted from the donor be past . diuerse kindes thereof . if lands be giuen to the husband and to the wife , and to the heires of the husband which he begetteth of the body of the wife , in this case the husbād hath estate in special taile , and the wife but for terme of life . if the gift be made to the husband and to the wife , and to the heires of the wife of her body by the husband ingendred , the wife hath estate in special taile , & the husband but for terme of life . if lands be giuen to the husband & the wife , and to the heires which the husband hath by his wife in this case , both haue estate in taile special , for that this word ( heires ) is not limited more to the one then to the other . if lands begiuen to a mau & his heirs with he engēdreth on the body of his wife in this case the husbād hath estate in the tail special , & the wife nothing at al. in respect of the persons to whom the taile belongeth . taile to the heire male which is two fold . . if landes be giuen to a man & his heires males of his body ingendred , in such case his heire male shall inherite , but his issue female shal neuer inherite . if lands be giuen to a man & to his heires males of his body engendred , & he hath issu ij . sonnes & deceaseth , and the elder sonne entreth as heire male , and hath issue a daughter and deceaseth , his brother shall haue the land and not the daughter , for that the brother is heire male . taile to the heire female with is to bee cōsidered by the definition . taile to the heire female , is where lands be giuen to a man & to his heires females of his body ingendred , in this case his issue female shall inherite by force and forme of the said gift , and not the issue male , for that in such cases where the gift is , who ought to inherite , and who not , the will of the donor shall be obserued . by the properties . whosoeuer shal inherite by force of a gift in the taile made vnto the heires males it behoueth him to cōuey his discent by the males with may be illustrated by . exāples . if lands be giuen to a man and to his heires males of his body ingendred , and he hath issue a daughter , who hath issue a sonne , and deceaseth , in this case the sonne of the daughter shall not inherite by force of the taile , but in such case the donor shall enter . if lands be giuen to a man and his wife , and to the heires males of their two bodies begotten , and they haue issue after the like sort , the like shall happen . the death of a man taketh not away the estate of those that be in the tail , as if a man haue issue a sonne & deceaseth , and land is giuen to the sonne , and to the heires of the body of his father ingendred , this is a good tail , and yet the father was dead at the time of the gift . the donees and their issue shall hold of the donor and his heires as he holdeth of the lord paramount . obseruations vpon the analysis . this definition , which maister littleton maketh of estate taile , consisteth likewise of genus , and of a difference . the genus is haereditas , which is common both to it and to fee simple : the difference in quadam certitudine limitata , by which it is distinguished from fee simple , for that is non limitata & sine certitudine , and by this definition a man may know what a fee simple is , and by the definition of fee simple what fee taile is , so that the rules of arte are well obserued , which are that rectum est iudex sui obliqui , and opposita iuxta se posita magis illucescunt . though the diuision or tenure of estate taile doth in the table precedent consist of two members , or two differences , yet the especiall taile is deuided into more partes : and that manner of deuiding is not contrary to the rules of methode , for it is too much curiositie to exact in euery diuision two onely opposed essentiall differences , and two distinct kindes . there be three causes wherefore a diuision cannot be made by two differences . first because of noe kind of thing , both the essential differences cannot certainly bee knowen , but the one of them wee doe expresse by a negatiue . secondly , because that difference which wee set downe in the affirmatiue is not alway the true difference . thirdly , because the diuerse nature of diuerse immediate kindes of one thing wil not alwaies permit a twofold diuision , for though the diuision of animal in hominem & brutum bee bimembris and according to rigorous exaction , yet sithe there be many kindes of brutish creatures , some that swimme , some that flye , some that goe , some that creepe , and the particulars of these kindes doe differ in the quintessence of their nature , surely to comprehend all these distinct thinges vnder two differences is not to be required , because it is either impossible , or a thing of exceeding difficultie . but when things are to be handled by way of disputation , as the arguing of cases which is of great vse in the lawe , another methode and course must be vsed then hath bene taken in the framing of this analysis , for there the principall case must be fully set downe , the points of ●awe orderly distinguished , the reasons on the one part must be first set downe , with answeres annexed vnto them , then the reasons on the other part , with answeres likewise in their due places : and lastly , the conclusion of the whole controuersie debated , whether it were by iudgement , adiournement , or by the concord of the parties , or by other speciall meane , and for better direction herein ( i am desirous to profit others if i could ) i haue set downe an homely paterne according to the plaines of my conceit , in the disposing and ordering of a case , famous in our yeare bookes , and of great weight and vse , being the prior of mertons case , being very often at large argued , namely , in the eightenth , ninetenth , twentith , and twentie one yeares of the raigne of king edward the fourth at seuerall times , and was likewise touched the second yeare of richard the third , and all the contents of the arguments vpon this case deliuered , as many as did concerne the principall points then in question ( for by matters are to be reposed in a seuerall place by themselues ) i haue brought into the compasse of a fewe lines , if you respect the large leafes wherein they are handled . le case enter le prior de merton plaintife , & le prior de bingham defendant . en le . . an de h. le . . vn fine fuit leuie parenter le prior de merton pl. et le prior de bingham deforceant sur vn briefe de couent , que fuit en ceux parolls : cest le finall concorde parēter le prior de merton querentem et le prior de bingham deforceantem de . markes , et v. s̄ . rent cū pertinentiis en s. et r. sur que vn brief de couenant fuit sum̄on enter eux que fuit que lauantdit prior de bingham acknowledge et grante pur luy et ses successors que touts iours , apres ils payer chescun an al esglise de merton pur les tenemēts queux il tient del dit prior et pur les tenemēts queux w. de w. ascun foits tient del dit prior en les villages auantdits cinque markes , et v. s̄ . a deux termes dans , pur touts suites et seruices , et que il ferroit a le chiefe seign̄or del fee pur lauantdit prior de m. et ses successors touts seruices queux apperteignont a les dits tenemēts : et pur cest graunt le dit prior de m. grant pur luy , et ses successors , que ils violent garrant̄ al auantdit prior de bingham et ses successors touts lauantdits tenements pur les auantdits seruices contra omnes gentes : sur que vient en le courte vn i. prior de merton et prya scire faci . enuers w. prior de bingham dauer execution darrerages del dit rent , que fuerōt due en les ans darrein passe , et il auoit : et fuit returne &c. a quel iour le prior de bingham vient eins , et dit que le fine prooue le rente grant a le predecessors del pl. destre vn rent seruice on a●●une auter rent issuant hors de terre et nemy vn annuitie , per que entant que il auoit acknowledge , que cest rent fuit execute , il doit auer vn assise ou distres , et nemy vn brief que est en nature de briefe dannuitie ▪ et sur cest ils demurront . les quaestions de ley . . si le fine fuit bien leuie . . si le rent soit vn annuitie . . negat . que le fine ne fuit bien leuie . littleton . fines he sont bon e●●eant leuies de choses queux ne sont in rerum natura al temps del fine leuie , et le rent de que cest fine fuit ●eu●e ne fuit in esse al temps pe● que &c. brian . ceo ne besoigne . car si ieo auoy in islington . li. rent issuant de terres de twentie homes per seuerall grauntes , si ieo graunt per fine a vous . li. rent hors de lour terres ou tenements in islington vous naueres . li. rent queur ieo auoy in islington mes vous aueres vn nouell rent : mes est diuersitie ou le chose de que le fine est destre leuie gist en demesne , et ou nemy . car lou gist en demesne , la doit estre in esse al temps del fine leuie , come si ies leuie fine de mon terre en dale lou ieo nauera ascun terre en dale , cest fine est voide , mes de chose que poit issuer hors de terre vn fine poit estre leuie , coment que ne soit in rerum natura , come de rent ou common in dale , ou en fait il nauoit ascun common ou rent in dale al temps &c. mes sil auoit common in grosse en 〈◊〉 le ville , et graunt a moy vn common , et ne monstra quel common , ceo serra construe le common que il auoit en 〈◊〉 le ville . neale . cest fine est leuie de vn mere annuitie , et pur ceo est male , cont̄ si de chose naturallment surdant hors de terre come si ieo conust tout mon dr̄t en vn acre de terre auous et vous per 〈◊〉 le fine graunt a moy vn annual rēt de . s̄ . hors de 〈◊〉 le terre , cest bon grant , vn● ne fuit ascun originall de ceo : per que &c. brian . en auncient temps home puissoit auer conus vn fine sans originall , et sil soit leuie a cest iour il poit auer scire facias et si aduowso● discend al coparceners et ils ꝑ indenture enrolle voilent agree de presenter ꝑ turne , chescun de eux quant son temps vient auera scire facias : per que &c. piggot . en auncient temps fines fue● leuie deo et ecclesie , mes le ley estore alter : mes come ieo pensa chescun fine doit auer originall et de accorder a ● . car le note est placitum conuentionis , et en nostre case nest ascun couen̄ dun annuitie , mes dun rent solement , et si le originall seit de . acres et le fine soit leuie de . acres quant al . le partie ser● discharge : car ne fuit ascun originall de eux , et en praecipe quod reddat le fine poit estre leuie del chose en demaunde , car le originall conteigne et concerne c̄ . issint si brief de couen̄ soit de acres en dale et le fine est leuie , de acres en sale le fine nest bon , ou si le originall soit de terre arable , et le counusans de pasture . . affirmat ' . que le fine fuit bien leuie . sulyarde . si en vn brief de couen̄ port dun mannor , le plaintif graunt le mannor al le deforceant , et graunt oustre a discharger le dit mannor enuers le seignior del fee , cest bon fine , et vnc● le clause de discharging ne fuit en le briefe de couen̄ , donques en cest case &c. sulyarde . si en vn briefe de droit de customes et seruices le seignior poit releaser per fine tout son droit , que il ad en le terre , et le ten̄ poit graunt per 〈◊〉 le fine . ● . annualment , donques &c. catesby . quant vn home acknowledge le droit de terre a vn et vn rēt est reserue sur le graunt et ren● , ou vn common , ou tot carectae ligni destre prise del ter● , cest bon , car ils sont conteigne implicatiue , en le originall , mes si le fine est leuie dun chose nient expresse ne implide en le originall cest voide , donques en cest case , pur c̄ que le fine est dun rent seruice , car le fine est pro omnibus alijs seruitijs per cest ꝑoll ( alijs ) est implide , que le rent est aliquod ▪ seruitium . . negat . que le rent en cest ●ase nest vn annuitie . piggot . le fine est que le prior de merton pur les seruices auant dits acquite le prior de bingham de touts seruices enuers le seignour del fee , et pur ceo cest rent seruice et nemie rent secke . collowe . le rent est change per le fine , car ambideur les parties serront estoppe de denyer lestate prise ꝑ le fine , come si home soit seise de terre en fee , et vn fine soit leuie perenter est● et luy , per que lestraunge acknowledge m̄ le terre a luy et a les heires de son corps ingendres , ore son estate est change , issint si home tient per seruice de chiualer , et le signior per fine acknowledge que il tient en soccage ore le tenure est alter , et il tiendra en socage , et en cest case le rent ne poit estre rent seruice , car donques le partie poit distr sur le terre et ceo ne poit estre . car touts suits quant al terre sont discharge per le fine : et ne poit estre rent charge . car nul terre est charge oue distr : et rent secke ne poit estre : car donques il serra demaund sur le terre : et annuitie ne poit estre : car le priour ne poit charge lemeas●● . pigot . si le prior ne b. ●e poit extinguisher les seruices per ses parolles , on per●son act , le ●ent seruice continue , per q̄ &c. si home tient de moy per xx . s̄ , et ies confirme son estate de tener per vn denier pur touts maners de seruices , il ferra fealtie , & cest rent est parcel del auncient rent , per que &c. . affirmat ' . que le rent est vn annuitie . starkey . si vn home ne poit graunt al auter ceo ḡ il auoit deuant , donques le rent ḡ le prior de bingham graunt a le prior de merton ne poit estre launcient rent , mes vn nouel rent ou vn annuitie , per que &c. si ieo teigne de vous per homage , fealtie , et ● . s̄ . rent , et ieo voile graunter a vous per fine xii . d. rent pur les tenements queux ieo teigne de vous , cest vn nouel rent , & nemy launcient rent , per que &c. vauisor . si per fine sur conusans de droit come ceo , vn nouel rent poit este graunt , car cesty a que le conusans est fait poit graunt vn rent a le conusor , et le cause est pur ceo que il serra intende que cesty a que le conusans est fait est seisie vel terre : mes auterment est de fine sur graunt & render , car le ley ne i●tende que le grauntee est seisie del terre , donques en cest ●ase le rent est vn nouel rent . choke . si ceux parolx , que le prior de bingham ferra touts les seruices pur le prior de merton , ne prouant ceo destre rent seruice : car si soient seignior et tenant , et le seignior release a le tenant per fait indent tout son droit que il auoit , reddendo vnum denarium , & faciendo capitali domino seruitia &c. en le behalfe del seignior ●eux parolx sont voides , car per le release son seigniorie est extinct , donques en cest case &c. iudgement . trois des iustices agarderont ḡ le pl poit suer execution per scire facias , et issint iudgement fuit enter ▪ e●maintenant sedente curia , vn briefe derror fuit mise eins . et fuit touche en le bank del roy . r. . mes nest la decids , ne argue . obseruations vpon the precedent forme of arguing . a. the first reason made by mast . littleton is drawen from the cause of the thing generally , and specially from the material cause : for if the onely material causes of fines be thinges which are in esse , it is a probable conclusion to say that of this rent being not in esse , a fine could not be leuied . and as the rule of logicke is , quae eadem sunt eorum generationes et corruptiones , causae constituentes et corrumpentes eaedem sunt : e so of such thinges which be the same in kind , the causes material are the same : and therfore the material causes of fines , that is the thing whereof they are leuied , ought to be the same . b. the aunswere of brian to mast . littletons reason is by way of distinguishing , for euery aunswere must be either by direct granting , or direct denying , or els by distinguishing which is partly a granting partly a denying . c. mast . neale his reason is drawen from the same place of logicke , from which mast . littletons was deriued : for he supposeth that an ammitie is no fit materiall cause whereof a fine may be leuied . d. sulyards reason is drawen à comparatis patibus from thinges alike probable : for if a man in a writ of couenant brought of a manor , may graunt and couenant to discharge the said mannor against the lord of the fee , though in the writ of couenant there were no mentioning of any such discharge : by the like reason a man may leuie a fine of a thing which is not mentioned in the writ of couenant , and which was no● in esse before . and this maner of reasoning is grounded vpon that rule in logike , si duo duobus aeque conueniant , & hoc huic conueniat , etiam illud illi conueniet . f e. sulyards second reason is drawen á simili : for like as in a fine leuied vpon a writ of right brought of customes and seruices , the tenant may graunt a rent which was not in esse before : so likewise in this case the fine might be leuied of a rent , which had no being before . and this consequens is warranted by this rule , si in vno eorum quae similia sunt aliquo modo se res habeat , eodem etiam modo in alijs se habebit . g f. the first reason whereby pigot goeth about to prooue that the rent is not an annuitie is deduced à genere : for if it be truely named by the generall name of seruice in the fine , it must be intended to be a speciall kind of rent seruice , and not a rent secke , according to the rule , si aliquid sit genus , species ab e● comprehensa participabit natura eius , sed non natura eius quod est contrarium generi . h. g. pigot his second reason is drawen a comparatis paribus . h. his third reason is drawen a simili . i. starkey his first reason is drawen a comparatis paribus . k. the reasons vsed by vauisour and choke to prooue the rent to be an annuitie are drawen a simili . finis . notes, typically marginal, from the original text notes for div a -e aa prouerb . ● aym. cons . viso proces●● in fi . a cyprian de . abusio . b can. venden . q. . canon pauper . q. . c deuteron . d can. sex . . q. . e can. omnis & sequ . can . discipli . . dist . f l. . tabula● . c. . g cicer. . de legi . h lib. . de sta● homiū . i lib. . de legi . k cicae . pro caecin . l lib. . de legi . m cicer. lib. . de legi . n cicer. lib. 〈◊〉 de inuent . pro. . chroni . . c. o senec in thy. p l. medic . . de profes . & medi. q d. l. medicos . r l. vnica & rubri . de profes . qui in vrbe constantinopol . docent ex lege meruerūt . comit. li. . c. tit . . ſ angel. aretin in §. proaem . institut . t plowd . in epi. a les estudents de le cōmon ley . v vir. aeneid . . x plat. in polit . a cicer. lib. . epist . famil . b cicer. in ora . pro caecin . c marcell . . ff . de iur . et fact . ignor . d in orat . pro cluentio . e . lib. . de legi . f quid. metamorph . a aristot . lib. . ethico● , ad nicomach . b leg. . tabular . c. . c cocles in physiognom . d cicer. in tusc . quest . e iacob . c. . f in analytic . posterior . f cicer. tuscula . . g cicer. in catone maior . h lapud iulianum de fide commissis liberal . in p. p aristoteles lib. nicoma chior . . & . & in lib. magnor . morali . q plat. in conuiui . r cicer. lib. . officior . s scalig. lib. . poetic . alberic . gentil . lib. de leg . . c. . t stobaeus de temperantia . u senec. epistol . . x plato in timae . y ioui . lib. . a albericus gentilis dialogo primo de iuris interpretibus . b lib. . de sanitate tuend . c. . c cicer. offic. lib. . d liuius lib. . e plato in politic . ee liuius lib. . f diogen . laer. in vit . platonis . cicer. lib. . officior . g dionys . halicarnast . lib. . h erasmus in encom . mo●ae . i senec. lib. . de ira . k flor. lib. . histor . l valeri . maxi. lib. . c. . k marsilius ficinus lib. de vita sana . c. . l lib. de somno & vigil . c. . m lemnius lib. . de complexion . c. n prouer. c. . ver . . o ecclesi . c. . p ecclesi . c. . q in epist . ad com. iust . r varro lib. . de lingua latin . ſ polybius lib. . hystor . t iuli. scaliger in exercitation . v plato lib. . de legi . x abberie . gentilis li. . de iur. inter●p . a alciat . lib. vlt. parerg . c. vltim . b iul. scalig. in exercitati . c xiphili . in vita m. anto. philoso . d eras . li. colloquior . in synod . gramma . e aristot . metaphy sicor . . c. . f cicer. lib. ● . de fi● . a celsus li. . digestor . plowd . comment . . per saunders . aa guido question . . aaa imo c. literas de resscript . . h. . . . h. . . temp. e. . common . & . e. . . per wilby . b philip. dec. comment . ad regul . iur . bb li. adiger . § quamuis . de iur . patron . li. . p. tit . . c. cum cessante de appell . c l. non possunt et li. nam et ait pedius de ll . in p. d iulian in l. ita vulnerat . § quod si quis absurde ad leg . aquilei . e l. i §. huius . ff . de insti . et iur . f l. pen. c. de princip . li. . h horati . i alciat . li. . de verb. sign . l cicer. in ora . ad brut. m plat. lib. . de leg . n alber. gentilis lib. . epistol . c. . o castr . in eo § item si reip . p li. . de orig . iur . q abberic . gentil . lib. . epistol . c. . r alciat . lib. . perarerg . c. . ſ l. meminerint . c. vn . vi . li● . . coll . . t l. quod fauor ▪ c. de legi ▪ a l. non aliter . ff . de legat . . decis . neapol . . numb . . c marius salmonius ad . l. omnes populi ff . de iustitia & iure . d quaero . §. inter locatorem . ff . locat . e l. . §. totie● ff . de damn . infer . f l. si repetendi c. de condi● . ob causam . g l. non alit●● ff . de leg . . h bal. in c. mandat . de rescript . i l. penult . ff . ad exhib . alciat . in l. . ff . de verb. sign . k tiraquell . in l. si vnquam ad verb. lib. num. . c. de reuoc . donat . l quintilian . lib. . c. . m ad . d. l. si inguam in princi . num . . n l. semper in stipulationibu● ff . eod . o loriotus de reg . axiom . . p l. tutor petitus §. . ff . de 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cas ſ com̄ . ꝑ car. dame hales . cas t ibid. v . e. . . w . h. . charge . a plat. lib. . de legib . b plat. lib. . de legib . c plat. lib. . de ligib . d . e. . . . h. . . . e. . . e . e. . . f . e. . . . h. . . g . e. . corone . . . h . e. . . na. br . fitz. . . h. . . per bab. . e. . repleuin . . e. . rep. i . h. . . . h. . . k . e. . repleuin . l . h. . . m . h. . . . h. . . . h. . . & . e. . . n . e. . . . h. . . . h. . . . e. . . . e. . . . e. . . o plat. lib. . de legib . p herodot . lib. . q arist . . polit . cap. . . polit . ca. . et lib. . ca. . et . r . polit . cap. . ſ plutarch . in peric . t vlpian . lib. . digestor . tit . . c. . u celsus li. . digestor . tit . . c. . w ouid. in metamorph. a c. . tit . digestor . de acquirend . rerum domini . b stamford . fol. . c . h. . . & . . e. . . . h. . . . e. . . d . h. . . . h. . . . e. . common . . . assis . pl. . . assis . pl. . . h. . . . h. . . . e. . . . e. . . . e. . . . e. . . . assis . pl. . . e. . barre . . . e. . commō . . . h. . . e n. b. quod permit . . elizab. . dy. f . e. . . h. . . . e. . . . e. . . . e. . . . h. . . . h. . . g . h. . . . e. . . . e. . . . e. . . . e. . admeas . . . e. . . . h. . . . h. . . h iustinia . lib. institut . . i . e. . . . h. . . . . e. . . k . e. . . . h. . per newdig . . eliz. . dy. l . e. . . . h. . . n. b. fitzh . en le briefe de trespasse . m . h. . . . assis . pl. . n stamf. lib. . c. . o . e. . . p . h. . . fillowes c. per brooke . pollarde . brudnell . newport & newdigate . q iustini . lib. institution . . r vlpianus lib. . ad edictum . ſ . e. . . . e. . . t vlpia . lib. . ad edictum . u . elizab. . dy. w ibid. & fitzh . n. b. . x . e. . briefe . y . assis . pl. . z . e. . . & . * . h. . . a exposit . des tearmes de ley , plowd . in le case de informat . pur mines . b fitzh . corone . c stamf. lib. . cap. . d fitzh . corone . . . e . e. . . . h. . . . h. . . . h. . . . h. . . . h. . . f . h. . . g . r. . deuis . . h . e. . enditement . . i lambard eirenarc . . . a gou. lib. . lect . ●ur . c. . b ioseph . de bel . iud. lib. . c bodin . lib. de repub. d deuter. . v. e alber. gentil . lib. lecti . & epistolar . . c. . f . h. . . dy. g . h. . . h . h. . br. contract . . h. . i . h. . br. apportion k . e. . br. apportion . l l. . de reg. iur . m l. . de reg . iur . § de relig . n . e. . . o . h. . . p . e. . . feoffem̄r q . e. . formedon . r . e. . ſ . e. . bre t temps e. . briefe v . e. . w . h. . a . h. . . plaint ● . b . e. . . c . e. . . d . e. . . e . h. . . f . mar. . com̄ . hilles cas . . e. com̄ . pa●●idg . cas . . h. . br. 〈◊〉 . . g . e. . . . e. . . e. . . feoff . . lib. ●undā . leg . fo . . h . e. . br. iurisd . . i . ass . pl. . k . e. . . l . h. . . m regist . n . ass . pl. . o . e. . entre . p . h. . q . e. . r . e. . cōmon . . ass . pl ' . ſ . e. . . . e. . common . t . h. . . a . h. . . . e. . . b . h. . . . e. . . c . h. . . . h. . . . h. . . d . h. . . . assis . pl. . common . e . h. . . f . h. . . g . assis . pl. . h . e. . . i . h. . . . elizab. . dyer . . e. . common . . h . . . e. . . dier . k . e. . . m . h. . per babing . mart. & paston . . e. . . assise . . ass . pl. . . ass . pl. . perkins tit . graunts . n . h. . . dyer . o . h. . . p . h. . . q . e. . . . h. . . r . ass . pl. . ſ . h. . . t . h. . . . h. . . u . . de verb. signific . a alber. gentil . lib. . epist . c. . b . e. . corone . . c . r. . supersedeas . d . h. . . e . h. . . . e. . . . elizab. . dyer . f . h. . . g . h. . . h . h. . . i . h. . . k . h. . . l . e. . . et . m . h. . . n fitz. na. br . . o . h. . . p . h. . . a me●aphys . ▪ c. . b physicor . . c. . c arist . metaphys . . part . poster . c. . d polyb. lib. . histor . a. b. c. scir . faci . . e. . . . e. . . . . e. . . . e. . . . r. . . a. ratio prima . b. responsum . c. ratio . . respons . replicat ad hoc respons . d. ratio . e. ratio . r. . f. ratio . . respons . g. rat. . h. rat. . i. rat. . con●ir . ratio . r. rat. . rat. . e arist . top. . c. . f arist . top. c. . g arist . top. c. . the ancient, legal, fundamental, and necessary rights of courts of justice, in their writs of capias, arrests, and process of outlary and the illegality ... which may arrive to the people of england, by the proposals tendred to his majesty and the high court of parliament for the abolishing of that old and better way and method of justice, and the establishing of a new, by peremptory summons and citations in actions of debt / by fabian philipps, esq. philipps, fabian, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing p estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the ancient, legal, fundamental, and necessary rights of courts of justice, in their writs of capias, arrests, and process of outlary and the illegality ... which may arrive to the people of england, by the proposals tendred to his majesty and the high court of parliament for the abolishing of that old and better way and method of justice, and the establishing of a new, by peremptory summons and citations in actions of debt / by fabian philipps, esq. philipps, fabian, - . [ ], p. printed for christopher wilkinson, and are to be sold at his shop ..., london : . reproduction of original in cambridge university library. marginal notes. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual 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characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- england -- history and criticism. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - jonathan blaney sampled and proofread - jonathan blaney text and markup reviewed and edited - pfs batch review (qc) and xml conversion the ancient , legal , fundamental , and necessary rights of courts of justice , in their writs of capias , arrests , and process of outlary . and the illegality , many mischiefs and inconveniences , which may arrive to the people of england , by the proposals tendred to his majesty , and the high court of parliament , for the abolishing of that old and better way , and method of justice , and the establishing of a new , by peremptory summons and citations in actions of debt . by fabian philipps , esq antonius matheus in praefat : ad lib : de auct●onibus , arduum est vetustis novitatem dare , novis autoritatem . dira per incantum serpunt contagia vulgus . london , printed for christopher wilkinson , and are to be sold at his shop at the sign of the black boy in fleet-street , over against st. dunstans church , . the contents of the chapters . chap. . the many mischiefs and inconveniences which may happen by an act of parliament , if obtained , for the more speedy recovery of debts upon bonds or bills , under the debtors hands and seals , in the manner as is by some desired . chap. . that the most part of that desired innovation was borrowed from mr. elsliot's wicked invention , and a wild systeme not long after framed , and from some also now much disused part of the civil laws . chap. . the reason and necessity of the more frequent use of writs of arrest and vtlary , then was before the statute of e. . cap. . chap. . the ancient use as well as necessity of the process of arrest and outlawry in this and other nations . chap. . the process of arrest and vtlary are a more gentle way of compelling men to pay their debts , or appear in courts of justice , then that which was formerly used . chap. . the delays and inconveniences of the process of summons , pone & distringas , were a great , if not the only cause of the disuse thereof . chap. . the writs and process of arrest and outlawry have increased , preserved , and encouraged trade , better secured the creditors debts , and made the borrowing of money more easie then it was before . chap. . the pawn and ingagement of the body , is most commonly a better security then lands or personal estate , upon which the borrowing of money was not only very troublesome , but difficult . chap. . the difference betwixt borrowing of money upon lands and real estate , and the procuring of it upon personal security ; and that without trust and personal security trade cannot well , or at all subsist . chap. . the way of capias and arrest is no oppression or tyranny exercised upon the people , since the making of the statute of e. . cap. . or hath been hitherto , or may be destructive to their liberties . chap. . that the wisest of the grecian commonwealths , athens and sparta , those great contenders for liberty and preservers of it , did in their establishments and methods of justice neither understand or suspect any tyranny or oppression to be in the necessary and mod●rate use of the process of arrest . chap. . the troubles and seditions of the people of rome concerning the whippings , scourging , selling for bond-slaves , and other cruelties used by creditors in the suing and prosecution for their debts , and the troubles and endeavours of the magistrates and senators to appease them . chap. . that their order made to pacifie a tumult was not perpetual , or so much as intended to extend to an absolute freedom of the debtors from arrest or restraints of their persons , until they appeared in courts of justice , or gave bayl to do it . chap. . that the statute of e. . cap. . which giveth process of capias and exigent in actions of debt , and other actions therein mentioned , is not repealed either by the acts of parliament of e. . or e. . cap. . there being no inconvenience or prejudice to the publique good in those kind of law proceedings , which might deserve a repeal by those or any other acts of parliament . chap. . that the nation hath not been base or slavish ever since the making of the said act of parliament of e. . cap. . chap. . an examination of the opinions of sir edward coke in his report of sir william herberts case , touching the process of arrest used in our laws ; and the many errors appearing in that book or manuscript called the mirrour of justice , and the fictitious matters and relations mentioned therein . chap. . that the late incessant needless complaints against our laws , and the proceedings in our courts of justice , had in the bottom of it a design of overturning monarchy and government , and to create offices , places , imployments and profits to the contrivers thereof and their party . chap. . that neither oliver cromwell or his son richard , the second mock-protector or little highness , did conceive it to be reasonable , or had any intention to deliver up the justice of the nation to those ignorant , giddy , and ever-changing kind of reformations . chap. . what occasioned the contrivance of the former projects and groundless complaints against our laws , since his majesties happy restauration . chap. . that the proceedings at the common law desired by the new way of a peremptory summons , or the old by writs of summons , pone & distringas , or writs of capias at the plaintiffs pleasure , are not consistent or agreeable one with the other ; and that laws being to be binding , are to be certain and positive , not arbitrary . chap. . that it will not be for the interest of the king and his people to give way to that design which may open a passage to other innovations and contrivances as much if not more inconvenient and prejudicial . chap. i. the many mischiefs and inconveniences which may happen by an act of parliament , to be made for the more speedy recovery of debts upon bonds or bills , under the debtors hands and seals , in the manner as is by some desired . the suggestions and that which should be the causes or inducements to such an act of parliament are greatly mistaken ; or if there happen any such evils as are pretended , they are raro contingentia , and do but seldom happen . and when they do arise , have their originals from other causes , but not from arrests in actions of debt , which by the shortest account , are and have been of . years continuance , by order and approbation of many acts of parliament , but may be demonstrated to have been of a far greater age , and equal to that of the eldest court or method of justice , in this , or any other civilized nation in the world . the mischances happening by two or three bailiffs in . or , jears , killed most commonly upon the score of their own provocation , rudeness and misdemeanors , are when they do so happen in the unruly suburbs of london towards westminster , for in the other too vast extent of them , an age or century is scarce able to furnish out one of those evil accidents . and within the city of london , where credit seems to be the life and soul of trade , and their growing , and already gained riches there may be reckoned in their two sheriffs courts twice every week in the year , holden no less than two hundred actions and arrests weekly , entered and made upon debts which makes no more disturbance than a quiet putting in of bail , which secures the debt more than it was before . and in all the counties , cities , and corporations of england and wales , as well as in the city of london , the death of a bailiff , serjeant at mace or catchpole , is not to be found in the remembrance of the most aged persons . and the writs and records of the courts of westminster , from which very many writs and proces do issue , and are to be returned into , cannot shew any frequency of writs of rescues , or any assaults made upon the sheriffs or their bayliffs , in the execution of them . and if the proposers of this bill and great alteration of the laws , will not think themselves to be prejudiced if they should speak according to the truth , and what every man upon the visible evidence of demonstration and records , may rationally believe . it cannot be denied , but if there be in one county or city two thousand writs or actions of debt , made out in a year to arrest , not above five hundred of them do proceed or come to appearance , and that of that five hundred unagreed , there are scarce half of them that are declared against , or make any defence , and not half of that half ever come to be tryed , and that those do also most commonly come to an end or determination . where there is no demurrers , or matters of difficulty in law , or peevishness in some of the parties to occasion the contrary , within less than a third term , that many thousands of actions are both in the superior courts at westminster , and the country and hundred court barons , and the inferior courts , determined within a few days , weeks , or months , very many in a quarter of a year , and those that remain uncompounded and undispatched , do not survive the contention or trouble of half a year after the suit commenced or begun . so that all things considered , if the laws and praxis in scotland , france , spain , germany , italy , holland , brabant , and all the other kingdoms and provinces of the christian world , civil and municipal , shall be rightly compared with our more happy , less troublesome , and chargable , they will not be found to afford to their people such a quick dispatch of justice adaequate , and ready way unto it as ours have done , and will always do , if they be not turned out of their old course and channel . by an invention now proposed , which will be as illegal as unparallel'd , and hath no other precedent or pattern then that late way of proceeding in actions of ejectment hatched in the leveling or oliverian times , and hath then and ever since amongst knowing and good men , gained no better an esteem then that of a publick grievance , and a monstrum horrendum informe ingens cui lumen ademptum , spawned and bred up in a rebellion , when monarchy was banished , and the word of god and laws of the land were shamefully , and as much as they could , be misused . for that there is an absurdity , confusion , and hysteron proteron in it , putting the cart before the horse , and making a declaration which should be after a summons executed , and appearance entred to precede the appearance , and at the same time go along with the summons , with a prefixion but from one terme to the next , which betwixt easter and trinity terme , being but with an interval of seventeen days , sundays not excepted , will be too short , peremptory , and prejudicial to defendants , and in the lent vacation , which is commonly three months , and the summer vacation which is never less than weeks , and sometimes longer , may be as inconvenient to plaintiffs , who by the ancient and more legal prefixions , with the small distance of time of days from return to return , in the term time might sooner have recovered their debts , appoints no tryal by juries , nor declares by what certain authority or court the summons shall be made , whether by the parties , plaintiffs , or otherwise , and gives a promiscuous conusance of pleas to all the courts of law at westminster , when as all but the court of common pleas , ( some cases of priviledge excepted ) have by our ancient laws , and magna charta , no jurisdiction or right therein . makes the summons for a time to come to falsifie the declaration if at the same time deliver'd with it , to suppose it to be already made , and the declaration which supposeth it to be already made , and is and ought to be a copy of the record in the court wherein the action is pretended to be laid , and intended to be tryed ; to say he was summoned when he was not , the fieri to be a factum , and the future to be a past or present , and will create some contradictions when the injured defendant shall come to wage his law , make affidavit of a non summons , or bring his action for damages sustained by a false affidavit or returne and will be sure enough to produce as necessary effects of causes , very many not easie to be altogether foreseen or enumerated mischeifs and inconveniences . overturn and mutilate all our fundamental laws , upon which the monarchy of england , the best of governments , and less arbitrary in the world , and the justice of our nation have for above one thousand years been built and established , and cut and canton both it and our well tempered monarchy into little pieces , and bring them as near as may be to an unhappy republique , which will neither fit , or be for the good of the nation . deform , or almost annihilate our long approved courts of justice at westminster , by taking away a great part of the process , and excellent formes and proceedings thereof , as adonizebek is said to have done to his captive kings , when he did cut off their thumbs and great toes , destroy a great part of the kings prerogative which limited and bounded by our laws and our kings and princes concessions , is no more than his just and necessary means of government , and in and by his high court of chancery superintends over all the courts of justice in the kingdom . and as to the law and latine part of it , and granting out of writs remedial under his teste meipso , will appear to be a court as antient as the reason and civility of the nation , from which all the other courts of westminster-hall , country-courts , sheriffs turns , court-leets and baron , and all other courts inferior in the realm , may truly be said to have their beginning , the matrix or womb of all our fundamental laws , either before or since magna charta , which had its birth and being from it , the repository ( under the king in the absence of parliaments ) of justice in all cases where an appeal to the king or parliament , or the helps of parliament shall be necessary , the custome of the nation officina justitiae , place and work-house of justice , & lex terrae , as it was in the year . alleaged to have been by the then house of commons in parliament . take away a considerable part of the rights and priviledges of parliaments , nobility , peerage and parliament men. and the liberties not only of them , but many of the gentry , and men of great estates in the kingdom , some of them very largely extended in the executing of process and returna brevium , by the charters of our kings and princes , or a long prescription have been granted or permitted , and vested in them , and their ancestors and predecessors , and in counties of england and wales , may after an account but of in a county one with another , amount to no less than one thousand , and of the lords also of mannors in their court barons , which , according to the computation but of three hundred mannors and court barons in every of the said counties one with another , will in all probability make a total of fifteen thousand and six hundred , if not a great many more , which the commons in parliament in the . year of the raign of king henry the vi. were so unwilling to have invaded by the then undue practise of attournys , as they did petition the king for the love of god , and in the way of charity , to forbid it under great penalties , which the king granted , if it be thought to the judges reasonable , who being thereupon consulted , an allocatur of that petition was entered in the margent of the parliament roll. overthrow , or put into a chaos or confusion all or much of the long used course and order of process and justice in the large and ancient jurisdictions of the courts of marshal-sea , principality of wales , dutchy of lancaster , and country palatines of chester and durham . and do the like to those great jurisdictions of the cinque-ports , and the admiralty whose business and the ancient course and manage thereof , cannot conform to the designs of such an unpracticable way of getting in of debts . lame and discourage the very ancient and useful , if something better ordered offices of sheriffs , under-sheriffs , and their bayliffs , in the execution of justice , and the proces of the courts thereof , by turning much of their business into a worse condition . change and inconvenience the government of the city of london , and borough of southwark , and of all the cities , boroughs , and towns corporate of england and wales , in their several administrations of justice . and like a hurricano whirling , and passed through the nation , at once spoil or confound all the courts of justice , great and little , therein and abridge or take from them their antient and hitherto justly allowed rights and jurisdictions , which to them and their predecessors , have with our incomparable magna charta , been no seldomer than times confirmed by acts of parliament . vvill be directly repugnant unto , and against magna charta , and the statute of . e. . a branch or limb thereof , which at the request of the commons , and for the good governance of them , ordained that none be put to answer without presentment before justices , or matter of record , or by due process of law , and writ original , according to the old law of the land. and if any thing should from thenceforth be done to the contrary , it should be void in the law , and holden for error . be a great loss and damage to the king , in his fines and seals of original vvrits , the seals of the vvrits and process issuing out of his courts of kings bench , common pleas , exchecquer , principality of wales , dutchy of lancaster , and county palatine of chester , and the amercements and issues forfeited or returned upon caepi corpus , writs of habeas corpus , and distringasses ; all which were intended by law to be assistant to the defraying of his great charges in the salaries and supports of the lord keeper , master of the rolls , judges , and officers imployed in the administration of justice , which taken away , will render him to be in that particular less considered , and in a worse case then oliver cromwel was , who by his miscalled parliaments , and instrument of an arbitrary protectorship , was besides his charge of the navy , and horse and foot guards , allowed two hundred thousand pounds per annum , for the charge of the government and administration of justice . take away from the king much of the law tax upon the writs and process , which a late act of parliament consented unto for supply of his urgent occasions , and bereave him of his never denied prerogative , and benefit of utlaries . extirpate the antiently and legally allowed essoynes de malo lecti , or veniendo , de ultra mare , or in servitio regio , or any hinderance which might happen to excuse their non-appearance after a lawful summons in debt , which by the laws of nature and nations have been in cases of necessity , inundation of waters , or imployment for the publick never denied . turne all , or the most of the proceedings upon actions of debt into surprizes and defaults , and disturbe the more deliberate , satisfactory , and safe way of tryals by juries . make a default which no law ever did , to have the force and effect of a verdict by jury when there was none . and debar the helps of writs of error , when all mankind , as well judges as juries , and the parties and their councel on both sides , may erre , and can have no assurance to be infallible . deprive the people of that part of our magna charta , which would have no man amerced for a small fault , but after the manner of the fault , and for a great fault , after the quantity thereof , saving to him his contenement , and to a merchant his merchandise , and that none be amerced but by the oath of good and lawful men of the vicinage , which did not certainly intend a debtor to be ruined for a small default , or to be debarred of his tryal by his peers . and obliterate the equity of the act of parliament of . e. . which providing that he that recovereth a debt , may sue execution by writ of fieri facias , or elegit excepteth the oxen and beasts of the plow , and cannot be rationally supposed to favour such a ruine upon a debtor , when for want of evidence and witnesses , he shall not be able to escape the fury of such a default . and likewise that part of magna charta which granted that the city of london should have and enjoy all the old liberties and customes , which it hath been used to have , and that all other cities , boroughs , and towns , and the barons of the five ports , and all other ports , should have all their liberties and free customs , and did not take it ( as it may be conjectured ) to be any reason that a surprize in actions or suits for debts , should by malice or tricks , without pleading , or reasonable time given for defence , destroy them and their trade , and families , and all their endeavors before and after . vvhich the prudent romans held to be so unjust , as where they gave a plaintiff but three hours to plead , they allowed the defendant nine . and it is not yet gone out of the memory of man , that in the year or , the course of stealing or hurrying of judgments , now unhappily borrowed from the innovation of the late wicked times of usurpation in actions of ejectment , was believed by justice bacon in the court of kings bench , and justice reeve in the court of common pleas , to be such a vioviolation of our laws , as they publickly declaimed against it , and threatned to imprison any attorney that should practice in such a manner . and with great authority and warrant of our lawes , and right reason , for that as it was justly and truely said by the judges in the reign of king edward the first , that non summonitus nec attachiatus per legem terre prejudiciari non potest , and fleta an approved lawyer in the reign of that king , and king edward the second his son hath published it to be a great and known truth , that the court of common pleas cannot hold plea in real and personal actions , without the commission or authority of a writ original out of the chancery , and that without it , nec warrantum nec jurisdictionem neque coercionem habent , and our laws did then and long after not proceed upon such warrant or commission until the plaintiff had actually given sureties to prosecute and maintain his action , and the sheriff to whom such original writ was directed , for to summon or attach the debtor to appear before the said justices had returned that he was summoned or attached as the nature of the action required , or had nothing whereby to be summoned or attached . when but a few years preceding , that well deserved indignation of those two worthy judges , that excellent , most just , lawdable , and rational course of justice had been endeavoured to have been subverted by one elsliot of a degree betwixt an attorney and a barrister , and a man very bold & able enough to make and contrive tricks and abuses in law proceedings , who having about the middle of the reign of king charles the martyr as a reprobate and cast away in the law shifted himself from england into ireland , and from thence after some bad prancks there played returning back again with as much poverty as impudence attending upon him , and having a desire to get some money by a contrivance , to gain a sudaine possession of some lands or houses for one as bad as himself , upon a judgment by default against the landlord or his tenant who were to know nothing of it , caused a declaration to be prepared in an action of ejectment against a feigned def t. or ejector in the name of a feigned lessee upon a short lease pretended to be made by his naughty clyent , and left at the house of the tenant , who not well apprehending the force and extent of the project , a judgment by default was entred , possession surprized and taken for which upon complaint made to the judges of the court of kings bench , in which court the action was supposed to have been laid , and examination of the fact , the judgment was made void , possession restored , and master elsliot the contriver , committed and told by justice barkley , that it was a shame that ever he should come or shew his face in a court of justice . howsoever getting himself afterwards enlarged , and the confusion and troubles of the late civil warrs disturbing and breaking in upon the law and all the courts of justice , mr. elsliot ; began again to appear to be somebody , & engages in another exploit , which was to gain by the like device , accompanied with force & some other naughty ways , possession of an house and a very considerable estate in lands in the county of essex of sir. adam littletons the father of sir thomas littleton knight , now a member of the house of commons in parliament , who to his great cost and trouble endeavouring to extricate and free himself and his fathers estate from the peril and danger of such a villany , may well remember that a counterfeit record was in that pretended suit privatly layd in the office of the records in the tower of london , sworn unto , and offered to be justified , but was at length taken as it ought to be for a roguish piece of forgery , and sir adam littleton and his estate freed from any further disturbance . whilst that no smal parcel of knavery being in great respect with the agitators of the then called parliament army , levellers & other state moulders , and stiling himself the esquire at armes , being somtimes a prisoner in new-gate , and somtimes out , wanted not a liberal maintenance from his patrons and great masters , until death shortly after unexpectedly rid the world of him . from which reasonless and ungodly formula or way of proceeding , rather to be exploded then embraced in actions of ejectment , and so utterly against the law ( evil examples being oftner followed then good ) by some of his proselites and the connivance or want of courage in some of the judges , in the time of the cromwelian usurpation , dum sui non fuerunt , knowing better , but doing worse , the same came again to be revived , and creep into an allowance , with a note indorced by the attorney in the name of the incognito or casual ejector , directed to the tenant or landlord , requiring them to appeare and look to the action , and confess lease ouster and entry , otherwise he must and would confess a judgment , or let it pass by default . as if such a judgment acknowledged by practice and confederacy , could not with a great deal of ease have been reversed by a court that should not be so abused , and the parties contrivant severely punished . of which kind of irregularity in the law ▪ and wandring out of the old paths , never to be justified , the justices of the court of kings-bench have been so sensible as they have for some years last past , caused a writ of latitat ( which antiently was used to be warranted by a vvrit original of the chancery ) to be awarded and sued out against the feigned ejector . and it is not half a yeare agoe , since the pillory of westminster proclaimed a brewer to be more crafty then wise or honest , when to gain an indirect possession of some houses by judgments upon defaults , having fudled the tenants with drink and tobacco . and giving them peices of the declarations as waste paper , when they knew not what had been written therein to give fire to their tobacco thought he had snapt them with judgments upon defaults when he made oath that he had left declarations at their houses , where they were in that manner made drunk , and could neither say or sware to the contrary . but unde or from whence soever it came , or if this new manner of law proceedings could have derived its pedegree from any more noble an ancestor . it will if every client and his attorney who is no member of the court , but only represents his client , shall be suffered to make the summons or citations , and to be both party , judge , and sheriff , without an authentication of hand , seal , or stamp , of any court or their subordinate officers ( which no court of justice , christian or heathen , hath yet adventured to allow ) be hugely opposit to the rules and maximes , as well of the civil as the comon law , used for more then one thousand years , that nemo privatus citare potest , and bereave the high court of chancery of those rights which do truly and justly belong unto it , and the judges of all other the courts and circuits of england and wales , who by an act of parliament made in the thirteenth year of the reign of king e. . and by ancient custom long before used are to have their clericos irrotulantes sworn and intelligent officers to record and make their writs and process . frustrate the antiently well approved power of the court of chancery in their process upon contempts , when there shall be as there will always happen to be matters of equity in cases of fraud , combinations , hardships , or rigours of law fit to be releived by the said court , and a great deale more then were formerly , if the creditors shall by this new model of common law proceedings be let loose to act their own will and furies upon their insolvent or not punctually performing debtors , and that high court shall upon contempts or disobedience of its process of attachments or commissions of rebellion have no power to punish them by arrest or imprisonment being the only meanes tueri jurisdictionem to maintain and uphold its authority and jurisdictions . the hands of justice and coercive power & authority of it , will be paralitique manacled & less in the laying by of the sheriffs and their very necessary under officers , by whom the law received its execution , which is as the life of it , and might as well be made use of in the summons , attachment or process before judgment , as they are to be afterwards , where there are and may be dangers of killing of men ( if ever there were so many as is informed ) by how much an execution after judgment of body or goods being unbaylable , is more terrible , and to be avoided by the debtor , then that which is baylable , and in many cases to be discharged by an appearance only to the action , and if the plantiffs or their servants , the attornies , clarks , constables or porters , must be the sheriffs or their bailiffs , there may be more danger of resistance , killing , tumults , and commotions , then ever there was of bayliffs , and of more extortion and tricks , in those that are not sworn , then in those that are sworne and bound up by many statutes and acts of parliament , and the penalties thereof . or if arrests and the execution of justice by the sheriffs and their subordinate officers could be any primary or never failing efficient causes of the sl●ughters seldom happening upon arrests , or that to prevent it there will be any such necessity of laying aside or disuseing that necessary office of sheriffs in the execution of justice , as well after judgment as before , that of the raising the posse comitatus in cases of a forcible resistance of their taking possessions or levying the kings debts , is to be put under the same fate , and neither sheriff or constable may arrest a felon , but obey the like method of summoning him at his house or lodging , to know if he be willing to be indicted , come to his trial , and adventure a hanging . but no well built or grounded reason being likely to be found to support such reasonless and lawless opinions , the adorers of such imagination may assure their disciples that elias is to bring the reason , and that until then they must expect it , and may in the mean time do much better to give them leave to believe that . such a system of infamy and cruelty , and an unmerciful credit , tearing course of summoning publickly by papers left at the debtors houses or lodgings , or which is worse , fastned upon the outward doores , which the malitious contrivances or tricks of ill affected or violent plaintiffs , if not prohibited by some severe penalties , will too often prompt them unto , and in the consequence bring an inundation of ruins upon this nation who do now more than half of them live upon credit , and are so generally indebted , as they will not be much wide or from the mark , who do believe that half the lands and estates real and personal of the kingdom sold to the utmost will not be enough to pay the debts thereof . and by suing out as it were commissions of bankrupt against all the nation , write , lord have mercy upon us , upon too many mens doors , and now there is so little money left them , take a way the credit that should help to support them . add affliction to affliction to all the loyal nobility gentry , and citizens , that had impoverished themselves by their loyalty , and taking part with their king and his laws , and the church of england , and leave them to the invisible mercy of those that did help to rob , plunder , and sequester them . bankrupt and undo most of the tradesmen , and be a meanes to help the over-hasty creditors to a composition of four shillings in the pound , or a great deal less , when as otherwise , with a little patience , they might have had their whole debts pay'd unto them , and make the unbridled fury of one creditor , to be a cause of the never payment of other creditors debts . when plaintiffs are many times as unreasonable as they are unmerciful , insolent and unperswadable , where they can either find or keep advantages , and that many an action as well as many a plaintiff , may be malitious , oppressive , unjust , and vexatious , and such a fancied speedy way of geting in debts , may be very instrumental for the advance of evil purposes and knavish designs . no inhabitant of wales where their laws do already allow them an iterum summons nor in the cincque ports or any of the counties palatine of chester , lancaster , or durham , will be able to borrow any money in london , or out of their own countries upon the best security , when that those who shall be imployed to serve the summons , being not the sheriffs officers , may be in danger to be beaten , and cannot be outlawed without several writs of capias many tradesmen do only subsist by their credits , and take up great sums of money upon an opinion of their present abilities , or future gain , by which they do commonly give no other security then their persons , and by the advantages therof do many times by their industry attain unto great estates , but if the process of arrest be taken away , they can hope no more to be so easily entrusted , for that an attachment of the person doth secure the plaintiffs debt , either by present payment or causing other satisfaction , which the proceedings by summons in this manner will never attain unto . the fear and disgrace of a process of arrest do put a period to many suits before the persons be attached , and before apparance , for that as a man will give all for his life , so he will do much for his liberty , and when men will either not regard a summons , or delay to give satisfaction or an apparance , they will make a great deal more hast to prevent an arrest . debtors are several times or often called upon by their creditors , which is asmuch as a summons made without a legal officer , but yet neither that nor a vvrit of summons doth drive the most of them , to any care of payment , until the process of arrest do issue forth , which is more compulsory , and will be sure to prove a more speedy remedy for the creditors then the way of summons . and a large and long experience consensu rectae rationis & totius antiquitatis , and many ages will evidence that the benefit of the process of arrest hath been very great to this nation , and that the care and wisdom of several statutes and acts of parliament who have always provided for the publick before the private , universals before particulars , believed certainties before incertainties , and long and never failing experiences before remote probabilities , and have from time to time given a larger extent unto it then before it had , may tell us that for many ages past it hath been the best remedie for the people to recover their debts , and to compose other differences that our forefathers in some hundreds of years last past could devise . and that to give the force of an utlary after judgment in a few days upon such a peremptory summons betwixt the tearmes of easter and trinity , and in the longer intervals , betwixt the other termes , doth scarcly allow half the time , which our laws thought reasonable and fit to the bringing of a man to be outlawed , which for its rigour and severity , was not by law as bracton saith to be over hastened , but to be after three writs of capias returned non est inventus and eight several contempts more . will settle upon the plaintiff a libertie appropriated only to a special capias utlagatum , to take both body and goods at one time , which the law where the body is first taken , although the lands and goods of the debtors , unless in cases of extents , upon statute , merchant , or of the staple , and utlary be otherwise sufficient to answer the debts will not condiscend unto . when unless it could be probable possible or imaginable , which a large proportion of melancholy can hardly do , that a personal estate in goods , money , or chattels , in the debtors house or shop , could be allways ready and enough to pay that and all other his debts ( and the king were no creditor , for his debts are to be first satisfied ) there must where a man owes one thousand pounds to ten several creditors , of one hundred pounds a piece , and hath but one hundred pounds in estate towards the satisfaction of those several debts , and one of the ten creditors hath out run the other & seiz'd it , be a necessity of a nihil habet to be returned , & the severest plaintiffs , must against their wills be constrained to forsake the by-ways of this new kind of summons , and make what hast they can with some repentance into the bargain to return out of them into the plain roads and high-way of arresting the body , or where there is a haste of the getting in the mony , or there is a suspitio fugae , or his insufficiency , or a necessity ( which may often be the case ) to outlaw a fugitive , or invisible debtor not easy to be taken or come at . bonds given to the sheriffs , or spetial bayle before judges , so many times necessary according to the old usage and customs of our laws & courts of justice , & fortifying many a debt , will by this new course of proceeding be no more to be hoped for or insisted upon by the creditor or plaintiff , who will be put in a worse condition then they were before , and where upon some doubt or mistrust of the debtor or his estate he might have had two more sureties or strings to his bow then he had before , that the deft . should answer the action , or yield his body to prison , must now be content with what he did not like , when by an arrest he might have had a better security . instruct or give warning in a lent or summer vacation to an insolvent or suspected debtor , to convey away himself , goods or estate , and by such an unmerciful way of process and proceedings , will not seldom incumber and ruine their debts and debtors , as many cruel creditors in the times of a more gentle and christian way of process have done , to the great loss of themselves as well as others , for want of a competent prudence and patience . occasion , multiply and increase perjuries , which are already too frequent and in fashion . and therefore when all is done , and some scores of good acts of parliament , without repeal , or any mention of them , and many a lawful reasonable and useful custom and course of the courts of justice of this kingdom shall be run over to prepare a way for this innovation , which if it be well inspected and considered , and put in the ballance of law and right , reason against the old , and that he or his posterity that is now a plaintiff , may be hereafter defendants , will certainly appeare to be much lighter than the old , which is the better and more experimented , and not only to be very destructive to the design held forth , and benefits expected by it , but very disproportionable to the publick good & the laws & liberties of the people . chap. ii. that the most part of that desired innovation , was borrowed from the said mr. elsliots wicked invention , and a wild system not long after framed , and from some also now much disused part of the civil law. and the promoters of the petarre invention , to blow up the estates and better part of the people ( for usurers , brokers , oppressors , and such as grind and devour the languishing and wanting part of them , are not like to be malignant to such a profitable engine for their purposes ) when they shall have made their accompt with god and man , for bringing such a desolation upon their fellow-subjects , for some selfended intrests . will bring themselves and all to this conclusion , that the most part of it was taken from mr. elsliots wicked invention , and another part of it framed out of a wild system , not long after thrown amongst a disaffected party of the people , to infect those who were mad enough before ; and that the little colour and glimmering of reason , that seems to keep them company , was borrowed from a now much disused part of the civil law ; that in cases of contumacy , the judge after a citation served , and disobeyed , did mitte●e actorem in possessionem bonorum . and that even in that custom of the civil law , these innovators did not consider as they might , that such a citation publick or peremptory , is by the civilians themselves acknowledged , to be a deviation à jure communi , & in casibus necessitatis tantum recepta quando alio modo , qui● citari non potest . secondly , vbi locus non est ●utus ubi citandus habitat . thirdly , si persona est vagabunda quo casu edictum eo loco affigi debet ubi solita est conversari . that such a possession is notwithstanding but fiduciary , and the plaintiff only put in possession , custodia causa & vice pignoris deti●et donee reus veniat responsurus . that a d . trial , decree , or sentence , & restitutio in integrum do not seldom afterwards follow . and that appeals from the lower courts or judges , to the higher commissions of adjuncts and revisions , will never allow that law to be ●o desirable , expedite , or little chargeable as our common laws are , which our novellists would perswade us to renounce and abandon . of which and the disparity of a great part of the body of the civil laws with those of our cipal and common laws , the dukes , earls , and barons of england , were so sensible as in the eleventh year of the reign of king richard the . in the cause and appeal of thomas duke of glocester and others against robert de vere duke of ireland , the earl of suffolk and others they denyed to proceed to judgment thereupon , according to the law civil and declared que la roialme de angliterre ne estoit devant ces heures ne al intent du roy & signiours de parlement unques ne serra rule ne govern per le ley civil , and our ancestors more than what they retained of some of the actions rules and directions of reason which that excellent law afforded , and was necessary , would not as our learned selden hath observed constanti adhaesione by a constant perseverance and affection be drawn from that singular reverence and esteem which they had of the common law , which so long a course of time and antiquity had fitted to their nature and genius . in so much as william de la pole duke of suffolk was in the reign of king henry the sixth accused amongst other things by the commons in parliament that he had sought to introduce the civil law. and the great cardinal wolsey was in the reign of king henery the eight indicted or informed against , quod ipse intendebat finaliter antiquissimas anglicanas leges penitus subvertere & enervare in universum & hoc regnum anglie & ejusdem regni populum legibus imperialibus dict . legibus civilibus & earundem legum canonibus subjugare . and king james coming from a kingdom where those laws were much in use , and seemed to have some inclination to introduce or intermingle some part of it with our common laws , did notwithstanding forbear to do it , acknowledging that the civil law was not applicable to this government , or fit for it . and our innovators that have been so wiling to intermingle with their system that part of the civil law , which in the cases of contumacy did allowe a missio bonorum repleuisable as aforesaid , may upon a further search and enquiry satisfie themselves and others that for the expedition of justice put on and perswaded by the increase of trade and insolvency of debtors the caesarean or civil law hath long ago forsaken their course of granting judgments for not appearing & missionem rum and seisure , and found the citatio realis captura & incarceratio , to be the more ready and less prejudicial way of compelling debtors or defendants to appear in judgment . for certainly to inforce , perswade or give a libertie to the people in their law suits and concernments depending thereupon to circulate , when they may go a more easy and less expensive way , nearer , more streight and better conducing to their honest ends , will be but to vex and tire both plaintiffs and defendants , and multiply their charges . when to draw and prepare the declarations which in debt and common actions were until the fourteenth year of the reign of king james to be entred by the filacers , and ought yet , if the cause or reason of their remitting that ancient part of their imployment do cease , and be taken away , the plaintiffs will in this new devised expedient for a quick and pie-powder course of justice , be put to a charge for the drawing of their declarations before hand , when it may be there will be no need of them , and to pay for the copies of them , which in a more regular course after apparances entred , were to be payed for by the defendants . and to the trouble and charge of entring judgments and the hazard of the loss of charges poundage aud other fees payd to sheriffs and bayliffs upon execution , or paying of damages where they are wrongfully or not well obtained multitude of affidavits , pro & con , of motions in court on the one side and the other many referrences and reports wagers of non-summons , writs of restitution , actions on the case for non summons , or for slander or defamation brought for malitious contrivances cum muliis aliis which will increase and heighten the bill of charges . and that goods seized inventaried and sold by under sheriffs and bayliffs at half or less value , though it may suffice one greedy and merciless creditor , will not be unlikely to defeat another or many others of their more just debts and utterly blast the debtor in his credit by which he might well have subsisted and survived the disgrace and trouble of so furious a prosecution . and that the long ago trodden path , or way of compelling or bringing men unto judgment or unto courts of justice , would not so frequently be made use of in england , the way of summons pone and distress being not yet altogether forsaken , and disused as it was formerly ) for that betwixt the reigns of canutus a danish king , & the year of the reign of king edward the third , and for some ages after , there neither could be any , either frequency of arrest , or necessity for it , as there hath been since and is now . chap. iii. the reason and necessity of the more frequ●nt use of vvrits of arrest , and outlawry then was before thi making of the statute of e. ca. . in regard that in those former ages there were more lands than tenants , more real estates , & but little personal , the trade of the nation not the fortieth part of what it is now , & so little before the reign of king edward the third , as those few merchants that came hither , had letters of safe conduct granted unto them before they came ; and that the commerce and trade , which was in king edward the third's time & long after , was only with the esterlings , and hanse towns , burgundy , aquitaine , & some genoese , and italian merchants , ( the turky , east and west - indy , and affrican trades not then or long after known or used ) usury so horrid and damnable a crime as it was , a cause of excommunication , denyal of christian burial , or a power to make a last will and testament ▪ the friborghs or tubings in every county , so obliged men to an obedience to the laws , & the publick peace , as every man of the tubing or freborgh were bound upon all occasions to bring each other to justice , & the nobility gentry , & masters of their numerous families were to do the like , for all that were de manu pastu , or in their service ; the lords of mannors kept much of their demesnes in their own hands , with great stocks & herds of cattel thereupon , had their bondmen and bondwomen in their families , villains & neifes regardant to their mannors , did let their other lands for small rents , and much personal service , as to plow their land , now their grass , make their hey , reap their corn , carry in their harvest & wood , do a great part of their husbandry , and sometimes ride with them abbies and religious houses , with their numerous monks , fryers , nuns , and all their dependants and servants belonging to them ▪ lived out of the reach of writs and proces , and all or most of them and the secular clergy in above . parishes , so formidable as they were as it were exempt from common proces , and no man durst lay violent hands upon them , that many thousand tenants in capite and by knight service , and the tenants which did hold their lands of the nobility & gentry , either as free-hold or copy by lease or at will , in the times of that great hospitality , protection , and comfort , which they receivedunder them , and the great veneration , awe , and respects which they paid unto them could , never find it to be either safe or convenient for them to commence or prosecute any action or suit in law against them , or any of their very numerous dependants , friends , kindred , or alliances , and there were many thousands which in the reignes of king henry the , henry the , richard the , king john , henry the , and edward the first were croysadoed for the wars in the holy-land and at jerusalem , and thereby claimed and enjoyed a freedom from any arrests or molestations concerning the paymentof their debts , with the many necessary protections given unto such as were imployed in servitio regis , which the said several princes & several of their successors , whilst they had so many provinces in france , and wars for the defence of the same , could not deny unto those whose service they made use of , increase of people by reason of more than formerly frequent marriages of the laicks and the marriages of all our clergy , which before had been for some hundred of years forbidden , could not but administer so many occasions to disuse the more slow way of the process of summons pone & distringas , and make use of that more expedite and quicker way of recovery of debts , or bringing men to justice , when in so great a change as hath since happened in the alteration of the estates , manners , business , and trade of the nation , not only at home , but a broad inward and outward , and that every man could not like a snail carry his house upon his head , or be sure always to be found in it , there could not be a few very great and pressing necessities to call for it , especially . when if all the people of the nation were numbred , or put into ranks , there would be , . free-holders . . copy-holders , lease-holders , and such as have an estate only in tythes , annuities , or rent charges . . men of estate only in goods . . or of trade and credit only . . men whose estates are only in money at use , or abroad in other mens hands . . or of no estate but what they carry about with them , or hope for by their friends , or their industry , or some future preferment . . such whose estates depend upon their daily labours , or profits arising thereby , as mechanicks artificers , servants , labourers , and the like . . mariners , and a sort of adventitious people , who have little or no abode , going or coming to or from beyond the seas , merchants , strangers , and the like . of all which several sorts of people , the free-holders and first classis are the only men , who are properly to be summoned , or to be within this new proposed law , because they have lands & estates to be known , and thereby summoned , and are to be found with some certainty , but are not the fortieth part of those which have not . of the second sort , the copy-hold estates , which being very near a fifth part of the nation , are not extendable or liable to debts , nor can without manifest prejudice to the lords of the manors , whose predecessors or ancestors did under certain limitations permit them to enjoy them , be made to be so ; tithes are for the most part not distrainable , and may be sold or compounded for before they be due , leases may be surrended or assigned , so as none shall easily find the true proprietor , annuities or rent-charges are not extendable . the third and fourth sort , may either convey away their goods , or have very little of them . the estate of the fifth , either not to be found out , or hardly to be come at . and the experience of some thousands of years past , and the latter as well as the former ages , can and will bear witness , and record of the usefulness and approbation of the proces of summons pone and distress , where the defendants are free-holders , & have a visible estate , and of arrest in case of contumacy and contempt of courts of justice , and suspition of flight and insolvencies . chap. iv. the ancient use as well as necessity of the proces of arrest , and outlawry in this and other nations . for it may be evident to any , who shall not too much be led by a causless prejudice , or an humour of censuring that which they do not understand , that an attachment upon pones do cause a manucaption or bail , and that upon on a distringas made thereupon , a manucaption of the defendants person is returned as well as the issues or profits of his lands or goods , that the words of attach or capias , used in the writs , process , and records of our law , are in many thi●gs synonimous , and of one and the same signification . and that the procedings in law by process of capias and arrest may not at all seem to be unwarrantable , cruel , and unjust , when precedents and approbation of the like and greater severities are to be found in the sacred , and always to be believed records of holy writ , in the old and new testament , as the putting the man in ward that was found gathering of sticks upon the sabbath whilst the children of isreal were in the wilderness , because it was not declared what should be done unto him , and if thy brother that dwelleth by thee be waxen poor and sold unto thee , thou shalt not compel him to serve as a bond servant ; and the selling of a debtor and taking his children to be bondmen . if thou be surety for thy friend , thou art snared and taken with the words of thy mouth , that of taking and casting into prison for debt until the utmost farthing was paid , and such or the like coercions to compel men to appear in courts of justice and satisfie actions , were long before the incarnation of our blessed saviour in use amongst the athenians in their laws . and the romans , those great masters of libertie , who having their lictores & serjeants carrying their rods and axes before their magistrates , expresly ordained that if a man would not or could not come before the judge , he should give bail to answer the action . metellus one of the tribunes of the people at rome arrested one of the consuls for taking away his horse . the great scipio africanus being called to accompt for moneys received , and refusing to come to his answer , the tribunes of the people , those great protectors of their supposed liberties , urged very hard to have him arrested , and fetched out of his house in the country and made to appear . julius caesar was inforced to give bail to his creditors who were about to stay him when he went praetor to spain . urgulania a great favorite of augusta , mother of tiberius the emperour , being summoned by piso in an action of debt , which she disobeying , was arrested , but rescued and conveyed to caesars house , whereupon a great stir and tumult happening , and augusta her self complaining that she was injured by it , the mony notwithstanding was afterwards sent and paid by her ; nor was such arresting of persons condemned by our blessed saviour when he advised defendants to agree with their adversaries before they were by them delivered to the judge , and the judge deliver them to the officer , and they be cast into prison . those roman laws and customes being to be allowed for an inducement to our common laws to do the like , which never refused to take in and borrow from other nations any thing that might add to its own perfections and excellencies , and could be no strangers unto the civil and caesarean laws brought into england about years after christ , when the emperor severus raigned seven years together at york , and that great lawyer papinian as praetor or lord chief justice , governed the civil affairs and justice of this nation under him , and those laws continued as a seminary of many of our laws & customs , as may be demonstrated for more than three hundred years after . by the laws of ina a saxon king raigning here in england betwixt the years and . made suasu & instituto of cenred his father , hedda and erkenwald his bishops , & omnium senatorum & natu majorum & sapientum populi sui in magna servorum dei frequentia ; if the plaintiff demanded right to be done unto him by the judge , and could not obtain it , and the defendant shew no cause why he should not give him a pledge or sureties , the judg was to be fined thirty shillings , and to do him right notwithstanding within a week after . and then there could be no doubt but that he had power to compel him to appear , and to punish his contumacy , for otherwise the judge could not be justly fined that had no power to enforce the defendant to appear before him . and if a pledge were required of him that was accused ( which as to the giving of a pledge or bail was no less then the awarding of a capias ) and he had not wherewithal to do it before the suit be determined , another might lay down a pledge for him , upon condition that he remained with him or in his power ( which is a most antient and cleare example ) saith that great antiantiquary sr. henry spelman ) of being bailed out of prison or giving bail to answer the action . by the laws of king edgar ( who raigned anno dom. . ) made frequenti senatu , every man was to have sureties who might have him forth coming to do right . by the laws of canutus made sapientum consilio , who reigned in anno dom. . no man was to compel another by distraining or taking away pledges to a suit in another liberty , unless he had thrice required right to be done him within the hundred . if any one be destitute of friends , and cannot find pledges , let him be put into prison . in the hundred courts , county courts , courts leet & baron , which ( saith our learned selden ) have a resemblance of the customs of the old germans brought hither by the saxons , the process are for the most part by summons , attachment , and distress , or if upon the summons a nihil habet be returned , that is to say , hath nothing whereby he may be summoned , then a capias . by the laws of king edward the confessor who reigned in anno dom. . which were of so high esteem with the english , that after a commission to find them out by the oaths of twelve men in every county of england elected and chosen , they with much a do , precibus & fletibus , obtained of william the conqueror to have them confirmed , and were after so exceeding careful not to loose them , as the observation of those laws , were by an oath afterwards taken by the succeeding kings of england at the coronation , more espetially recommended unto them . every man that would be accounted a freeman , ought to be in pledge , that the pledges might bring him to justice if he should offend , and if he escape , such pledges should pay what he was sued for , which ( saith our sr. henry spelman in his glossary resembles our frank pledge ) and let the hundred and county ( say those laws ) be demanded for him as our ancestors have ordained . for say the same king edwards laws , it is the greatest and highest security by which all men and their estates are strongly upheld . by the laws of william the conquerour who confirmed the laws of king edward the confessor , omnis homo qui voluerit se teneri pro liber● sit in plegio ut plegius eum habeat ad justitiam si quid offenderit & si quisquam talium videant plegii & solvant quod calumpinatum est , every man who would live or be accounted as a free holder is to live in frank pledge , so as his neighbour or pledge may bring him to justice , if he shall offend , and his pledges ( or neighbour in the tithing ) are to look unto it and pay that which shall be demanded of him , and he shall be adjudged to pay. by the laws of henry the made concilio baronum , he which is summon'd to the hundred court , and without any just necessity refuseth to come , if he be able let thirty pence be taken from him , for the first and second time ( which seemeth to be a forfeit ) and let him be distreined by the hundred , but let him be put to pledges till the day of pleading . and he which was brought or compelled by process before the judge , for so the word pulsatus in that law of h. . was by the civil law , and the laws of the longobards commonly rendred , might appeal if he suspected his judges , and appealing might not be detained in custody . ranulphus de glanvil who recorded much of what was the practice of the courts of justice in england in his time , and was lord cheif justice in the reign of king henry the when ( as he saith in his proaemio or epistle to that book ) the laws then in use were founded upon reason and antient customs , the king willing to be advised , the judges , men of great wisdom and knowledge in the laws and customs of the kingdom , and justice so faithfully administred , as the great men could not oppress the poor . writeth , that if the defendant appeared not in an action of d●bt , after he was summoned , an attachment was awarded and a distringas as in other pleas. and it was in those times held to be common law , that where a fine was levied , and that after essoynes either of the parties refused per●ormance , tunc remanet in misericordia regis & salvo attachiabitur quous que securitatem in veniret bonam . in the reign of king henry the . ( as appeareth by bracton a judge and learned lawyer of those times , in his book delegibus & consuetudinibus angliae , compiled as he saith ex veteribus judiciis justorum out of ancient records and memorials ; if upon the th day of the return of the summons in an action of covenant or trespass , the defendant appeared not , whether the summons were returned or not , an attachment was awarded . if he came not then a second attachment was awarded to put the defendant to better pledges or securities . and if he had not land which might be taken into the kings hands , or by which he might be distrained , the sheriff should be commanded to take his body or bring him , and the pledges were to be in misericordia quia ulterius non sunt summonendi , and if he came not at the day appointed , sed maliciose se subtraxerit & latitaverit quod corpus inveniri non possit vel forte se transtulerit extra comitatum & potestatem vicecomitis & vicecomes mandavit quod non fuit in ventus in balliva sua , then in default of his appearance , three writs of distringas shall be made out one after another , the first by all his lands and chattels , second by all his lands and chattels , ita quod nec ipse nec aliquis pro eo nec per ipsum manum apponat ita quod habeat corpus ejus ad alium diem & si tunc non veniret precipiatur vicecomiti quod distringat eum per omnes terras & catalla & quod capiat omnes terras & omnia catalla sua in manum domini regis & capta in manus domini regis detineat quousque dominus rex aliud inde preceperit & quod de exitibus eorundem domino regi respondeat . and for this kind of proceedings cited a record in michaelmas term in the third year of that kings reign , which in its use and nature carried along with it a restraint of the body of the defendant , for the sheriff was by the writ to distrain the defendant , ita quod haberet corpus , and it would be in vain to distrain him who perhaps had a small estate or profit of his lands to be destrained betwixt the teste and return of the writ if the sheriff did not at the same time restrain or secure his body to appear before the justices at the time prefixt , to answer the contempt as well as the action . but saith bracton , if the plaintiff post tot & tantas dilationes justiciam non fuerit consecutus should not after so many delays obtain justice , what shall be done , for durum est enim quod placitum suum deserat & infecto negotio desperatus recedat domum , it would be hard that the plaintiff should go home in despair , and be able to do nothing ; and therefore concludes , that if it be a civil or personal action , for mony , or upon any contract , it would be good to put the plaintiff in possession of the defendants goods and chattels according to the quantity of his demand and summon the defendant at a time limited to appear , and answer the action , at which time if he do appear , he shall have his goods and chattels restored unto him , so as he answer the action otherwise , he shall never more be heard concerning his goods and chattels , sed querens extunc verus possessor efficiretur , but the plaintiffs shall from thence be reckoned the true owner and possessor thereof , si autem cum corpus non inveniatur nec terras habuerit nec catalla ille de quo quaeritur iniquum esset si justicia remaneret vel malitia esset impunita ; but if his body cannot be found , and he hath not any goods or chattels , it would be unjust that justice should be at a stand and not go forward , and that the evil actions of men should remain unpunished , and therefore whether the action was pecuniaria vel injuriarum , was in debt , or for mony or trespass , the court was to proceed against him by process of utlary , propter contumaciam & inobedientiam factam domino regi quia nullum majus crimen quam contemptus & inobedientia omnes enim qui in regno sunt obedientes esse debent domino regi & ad pacem suam & cum vocati vel summoniti per regem venire contempserint faciunt se ipsos exleges , for their contempt and disobedience to the king , because there is no greater crime then contempt and disobedience , for all that are in his kingdom are to be obedient to the king , and observe the peace and justice thereof , and being called or summoned by him , shall contemn it or refuse an obedience thereunto do make themselves outlaws . et ideo utlagari deberent non tamen ad mortem vel membrorum truncationem si postea redierent vel intercepti fuerint cum causa utlagationis criminalis non existat sed ad perpetuam prisonam vel regni abjurationem & a communione omnium aliorum qui sunt ad pacem domini regis , and therefore he ought to be outlawed but is not if he return , or should be taken to be punished by death , mutulation or cutting off his members , in regard that the cause of the utlarie was not criminal but he is to be commited to perpetual prison , or to abjure the kingdom , be banished , and forbid the society of all the kings subjects . and in those days where a man by lease had taken an house rendring a certain rent , quid saith bracton , what shall be done when the tenant doth not pay his rent , & nihil in domibus locatis & conductis inveniatur , and hath no goods and chattels , yet howsoever resolves the question , recurrendum erit ad corpus conductoris , si autem corpusnon inveniatur hoc poterit locator suae imputare negligentiae vel imperitiae quod sibi cautius non prospexit , recourse is to be had to the body of the tenant , and if he be not to befound , the landlord is to impute it to his own negligence that he did not look better to it . cum quis ad warrantum vocatus fuerit christianus vel judaus qui terram non tenuerit in feodo quae capi possit in manum domini regis per quam distringi possint pracipiatur vicecomiti quod habeat corpora eorum , when any man is vouched to warranty be he christian or jew , and hath not land which may be taken into the kings hands or by which he may be distrained the sheriff shall be commanded to take his body or bring him . and a bishop being summond in a quare non admisit cum non venit nec se excusat per nun-nec per essoniatorem attachietur , when he neither comes , nor sends his excuse , nor essoins shall be attached . upon a writ awarded to a bishop to command him to bring before the kings justices a clark or minister in holy orders , refusing to find pledges because he was in holy orders , and had no lay fee whereby he might be distrained , if the bishop did not after a summons pone & distringas , awarded against himself , cause him to come , the court did proceed against the clark upon the contempt , and cause him to be arrested , nor could the sheriff or his bayliffs incur any punishment for doing of it ; for the execution of the law saith bracton wrongeth no man. by the statute of marlebridg made in the year of the reign of that king , if any shall not obey or suffer summons , attachments , or executions of the same according to the law and customs of the kingdom they were to be punished . the word attachment being , saith the learned vossius , derived from a french word to apprehend or detain . an attachment is to arrest , force or compel a man denying to come to judgement , saith sir henry spelman . and by skene a learned scotch lawyer is defined to be a certain bond or constraint of the law , whereby a defendant is unwillingly compelled to answer in judgment to the party complaining . in the statute of henry the third , where a capias is given against accomptants , it is said they shall be attached by their bodies . an attachment made for disobeying a writ of prohibition is in the very form of a pone , & the awarding and entry of a pone is that the defendant should be attached . and saith bracton the course , or solemnity of attachments to compel the defendant to come to the court to answer his contempt , was not so always observ'd , but in trespas for the greatness of the offence , or in favour of soldiers that were going to the wars , or of merchants or such as required haste in actions of debt ( and it is probable that the actions or suits of merchants were most commonly of that nature ) the judges granted an habeas corpus ( which to that purpose was in effect as much as a capias ) whereby the sheriff was commanded , all delays set apart in regard of such haste and priviledge to bring the body of the defendant to answer the plaintiff in an action of debt or trespas as the case required , with a clause in the later end or perclose of the writ , that the sheriff should be grievously amerced if he refuse to do it . by an act of parliament made in the year of the reign of the aforesaid king in a plea of common custody or guard by reason of ward , if the deforcers came not at the great distress the writ was to be renewed twice or thrice within the half year following , and if after the writ read and proclaimed in open county , the deforceant absent himself and the sheriff cannot take his body to bring before the justice , then as a rebe●●e shall loose the seisin of his ward . by the statute made in the third year of the reign of king edward the first , if any under sheriff or other do withhold prisoners replevishable after they have offerd sufficient security , he shall pay a grievous amerciament to the king , in which act of parliament , men committed by the king or his justices , are excepted and declared to be not replevishable . by a statute of the aforesaid king made in the same year ( the title of it being against the arresting of men in liberties ) great men and their bayliffs ( the kings officers only excepted , to whom special authority sayeth the statute is given ) were not to attach men passing thorough their jurisdictions with their goods compelling men to answer before them upon contracts and covenants , &c. and the writ of prohibition in the register awarded upon that statute , is for attaching a man to answer upon contracts and covenants . britton who wrote his book by the command of king edward the first saith , if any man will complain of a debt under forty shillings , let him find pledges to prosecute his debtor , and if he that is sued in trespas maketh default , let him be distrained . and that in an action of debt if there be not a sufficient distress the difendants might be taken by their bodies , be they clarks or laymen . fleta or whosoever was the author of the book so called reciting the then manner of proceedings at law as an old and accustomed course saith , they were by summons , attachments and distress in personal actions the entries and awarding thereof upon record being the very same with little difference as they are now used . if a debtor had bound himself to be in default of payment distrained by the steward , and marshal of the kings house , then upon security given by the creditor to prosecute , a distringas was awarded against the debtor until he found pledges , so as he were within the virge , and if he were personally to be found , was to be attached by his body until he should by pledges acquit himself , and if he had not pledges was to be held in custody until that he answered the creditor , non tamen in vinculis , or if he found pledges and after made default , the pledges were to be amerced and the defendant arrested and detained , and not be bailed or let loose by pledges before he had answered . and that not only , marescallus sub suo periculo omnes captos infra virgam custodire debet , sed de eis coram senescallo respondere & de judicatis plenam facere executionem , the marshal should at his peril keep all that were taken within the virge , but answer for them before the steward , and ought to take in execution those against whom judgment should be given , and the steward did of course command the clark that keepeth the placita aulae pro rege rolls and records of the kings court to direct his writ , marescallo quod ipsum de quo fit sine dilatione attachiari faciat , to the marshal that he do without delay attach him of whom any complaint should be made . in the seventeenth year of the reign of king edward the second a nihil habet being returned by a sheriff upon a distringas in wast a capias was awarded by the justices of the court of common pleas against the defendant . and that if a sheriff return upon a pone a tarde that the vvrit came so late unto him as he could not execute it , and it be averred that the vvrit came time enough , or that the party was present and might be attached the sheriff was to be amerced . personal actions , saith the mirrour of justice , ( so much admired by sir. edward coke ) have their introductions by attachments of their bodies , real by summons and mixt actions . by summons and after by attachment in personal action . and in the same kings reign if a religious man professed , had forsaken the house and become vagrant , a vvrit upon a certificate of the abbot or prior issued out of the chancery to the sheriff to take him . in the eight year of the reign of king edward the third presentatio facta fuit apud lincolne contra thomam de carleton sub vicecomitem indictatum de extorsionibus & aliis malefactis & inter alia quod mittit homines arrestatos pro debitis in ergastulum strictum & fetidum inter latrones quousque finem fecerint cum illo pro deliberatione sua extra , &c. contra formam statuti & plurima alia pro quibus fecit finem cum rege & postea pardonatur per breve domini regis eo quod invenit regi in guerra sua scotiae tres homines armatos & duos hobelarios thomas de carleton under sheriff of the county of lincolne was indicted at lincoln for several extortions and misdemeanors , and amongst other things , for that he did put such as were prisoners and arrested for debt in a close and loathsom prison amongst theeves until they gave him mony for their better accomodation , against the form of the statute , and did commit many other misdemeanours , for which he paid a fine to the king , and was pardoned for that he furnished the king in his vvars in scotland with three armed men and two hoblers or common soldiers . by an act of parliament made in the year of the reign of the same king a capias is to be awarded against such as not having wherewithal to live do refuse to serve . . ed. . it was held for law , that upon a judgment obtained for debt or damages , the body of the defendant might be taken in execution , and by the opinion of thorpe and basset judges where conusance of pleas is granted , there are also granted all things necessary unto it , as to proceed by way of capias , distresse , &c. and it was in those times agreed to be law that the judges have power by word of mouth to command a defendant to be attached , and that he that bailed a man might by the law , without process , arrest or take the partie bailed , and bring him into the court. all which put together and brought to a due consideration , with the small or no difference , which is betwixt a pone and a capias , as to the attaching and compelling of defendants to appear in the tenor , and antiently practised , and yet intended use of it may be enough to rescue us from the imputation of error or presumption , if pace tanti viri , we shall take that which hath been said in sir. will. herberts case by sir. edward coke in his third reports that the body of a defendant in an action of debt was not subject or lyable to an execution before the statute made in the th year of the reign of king edward the third , to be no more than an opinion built upon a great mistake , for that statute was not made only to give process of arrest by capias upon a nihil habet or non est inventus upon a pone or a nihil habet or non est inventus returned upon a distringas by a sheriff , because it was so before by the common law of england ( it being altogether improbable that those who had lands or any visible estate in goods or chattels were before the making of that statute always resident , or did never hide or absent themselves for debt or some other actions , to avoid a summons or some arrest or compulsory way to bring them into courts of justice to answer and give satisfaction unto such as had cause to complain of them , or that those who had no lands or goods were always to be free and exempted from any restraint or arrest of their bodys upon actions of debt or for any other matters commenced against them . but was intended only to have process to the exigend and utlary , ( which could not be without a write of capias ) in actions of debt , detinue of chattels , and taking of beasts , per capias & exigend selon retourne du vicecount come home use en breifs daccompt , by capias and exigen● according to the return of the sheriff , as was used in writs of accompt , and being at the petition of the commons in parliament priont les commons , the king , as the record it self witnesseth , did answer , i l plese ou roy que ainsi soit & quil soit mys en estatut , it pleaseth the king that it should be so , and that it be put or formed into a statute . and the reason of that petition of the commons in parliament to the king which introduced and procured that act of parliament , ( many acts of parliament and good laws in the former ages being usher'd in , and obtained by the petitions of the commons in parliament to their king and sovereign , ) may in all probability seem to be , for that they did not think either the former process of the law by summons , pone distringas or capias to be severe or sufficiently coercive , or so powerful to bring a defendant to justice , as the fear of an utlary , which in the saxons times were so terrible as he that was outlawed was accompted to be a friendless or lawless man and was afterwards so formidable to those , that by the contempt of the laws incurred in the forfeiture of their liberties , goods , chattels , profits of their lands , and benifits of the laws , as it might well be believed every man would be careful to avoid so great a danger and trouble . and therefore in the eighteenth year of the reign of that king , being but seven years before the making of that statute , it was deemed to be for the good of the people to have it declared by act of parliament in what cases process of exigend and utlary should be , that is to say , against such as received the kings . wool or mony , and detained it , such as transported wool , not cocquetted or without custom , against conspirators and confederates of quarrels such as commited ryots and brought in false mony , if they could not be found or brought in by attachment or distress , and not against any other . and by another statute of the same year no exigend was to be granted in trespass but where it was for breach of the peace , and at this day notwithstanding the statute of . e. . ca. . no writ of capias can be made without a nihil habet returned , nor could a capias in accompt be otherwise made before the making of that statute , nor can be since without a nihil habet returned by the sheriffe , unless the co●●t should by their coercive power of punishing contempts and contumacy think fit to do it , as is now done by attachment in chancery upon a defendants not appearing , and was long before that statute done by the judges of our courts of common law , for not obeying prohibitions or vvrits commanding the not impan●lling of one above the age of years to be of a jury , a vvrit to replevin or bayl a man which was imprisoned , upon a moderata misericordia , against a steward or bayliffe of a manour for amercing too much , against a sheriffe , for not summoning or misreturning a jury ( and the like ) they being as well enabled to cause a defendant to be attached or arrested for a default or contempt in refusing to appear before them as they did usually before that statute , and do yet award a grand cape against the lands of a tenant for not appearing in a real action , make out a capias pro fine & imprison , a defendant for pleading non est factum to a bond or other deed after it is found against him , and a capias to arrest such as shall make a rescue as they did before that statute , and do yet make a capias upon a nihil habet returned upon an original in accompt when the statute of marlbridge . h. . cap. . only gives it upon a distringas when the defendant hath nothing to be distrained and as they did before the statute of . e. . cap. , and yet do in actions of trespass make a capias upon a nihil habet returned instead of a distringas when the original writ out of the chancery is a pone or attachment . otherwise they cannot do justice to those that complain and their jurisdiction will be useless , and to no purpose saith mr. selden , and therefore where ever there is the one , of necessity there must be the other , and the judges saith glanvil in h. . time had power to punish contempts and such as should absent themselves . and had no less in the reign of king henry , when it was said by bracton , ex quo eis commissa est causa simpliciter extenditur eorum jurisdictio ad omnia sine quibus causa terminari non potest quantum ad judicium & executionem judicii , when they are commissionated to hear a cause , their jurisdiction is to be extended unto that without which the cause , as to the judgement and execution thereof , cannot be determined , and did not want a coercive power in the reign of king edward the . when a man could not have a vvrit de homine replegiando when he is taken by the commandment of the chief justice , and upon all contempts made to any courts of record in disobeying the commandment of the king under his great seal , the offender is to be fined and imprisoned , for jurisdictions saith the civil law are maintained and upheld by such kind of coercions , and is no more either as to the point of contumacy or when the defendants have not goods sufficient then is now usually done in the collecting the excise or monthly assessements , when the collectors where no distress can be found , are impowered to take and imprison the body , and even the system maker in the time of the late rebellion when the inclosures of the law and all that supported or savoured of monarchy were endeavoured to be thrown down , and every discontented or foolish fancy would be a legislator , and busie it self in the alteration and spoiling of our laws , could not tell how to avoid the allowing of an arrest or capias where the defendant had no visible and certain estate whereby to be summoned . and with much more which might be alledg'd for the antiquity , legality , rationality , long approbation and usefulness of the writs and process of arrest , and utlary , which have been and are a great part of the power and ancient rights and customs of our courts of justice without which they can neither subsist , exercise , maintain or keep their authorities , or accomplish the design and ends of justice , and their constitution may inform all those that would not bind or make themselves more than apprentices to those inconsiderate clamours which since that fatal and unhappy year , have been raised by the mobile & scelestum vulgus , ignorant and plundering part of the people and their new fangled devices and designs for the banishment or alteration of our laws which they but a little before had cryed up and publickly professed to be their birth-right . and by the extirpation of monarchy , kingly and church government plow up the kingdom to their own ungodly advantages and profits , and render it to be in a worse and more barbarous condition then wat tiler , jack cade or ket could have brought it unto if their several rebellions and clounery had gained their expected success . that there is nothing to uphold those their reasonless desires of innovation . and that our fore-fathers were so well content with the benefit of that act of parliament of . e. . for the proceedings by writ of capias , and by process of exigend to the utlary , in actions of debt , detinue of chattels , and taking of beasts , ( for that may appear to be the only design and purpose of that statute . ) and did so little believe the process by way of capias and arrest , to be any invasion of their liberties and rights of freemen , as they did in the said parliament petition for , and obtain an act of parliament , that no man might be taken but by indictment or presentment , or by proces made by writ origynal at the common law , or to be prejudicial unto them or their posterities and in the year of the reign of that ki●g . although great mischiefes did as was complained to that king in a parliament holden in the seven and thirtieth year of his reign often happen and dayly come , because that escheators sheriffs and other the kings ministers did seise the lands goods and chattels of many surmising that they were out-lawed , where they were not because they did beare such names as those that were outlawed the benefits of the aforesaid statute of e. , for process of utlary by vvrits of capias and exigend which was made but two years before did so over ballanc● that or other inconveniences as might happen in some mens particulars , as the vvisdom of that king and parliament , could not think it fit to repeal that statute , or forbid or discourage the right use of it , but did only ordain that if any complained , he should in such a case have a writ de ldempuitate nominis as had been in time past . and in the th year of that kings reign whereas many people were grieved and attached by their body in the city of london at the suit of the people of the same city surmising to them that they be debtors , and that they prove by their papers whereas they have no deed or tally , it was assented , that men may wage their law , upon debts due upon such papers . and the right use of that act of parliament of . f. . cap . did from time to time receive its allowance and approbation by several acts of parliament made by our kings and princes ▪ from the makeing of that act until that never to be enough deplored infatuation and unruly giddiness of a rebellious part of the nation betwixt the year , and his majesties happy return in the year , . as by an act of parliament made in the first year of the reign of king richard the , it was enacted , that prisoner upon judgments given in any of the kings courtss of justice should not be suffered to go at large that a fained confession of a debt due to the king should not delay anothers execution . and that priests should not be arrested doing divine service . and in the second year of that kings reign , being but about years after the making of that statute of e. the . to proceed to utlary by way of capias in actions of debt , robert de hauley esquire being arrested upon an action of debt , and upon his escape pursued into westminstar abby church , where he took sanctuary , was in a tumult in the church , slain at the high altar when the priest was singing high mass , and the offence and breach of priviledg ( as it was then pretended to be ) complained of in parliament by the arch bishop of canterbury and the rest of the prelates and clergy , who prayed that due satisfaction and amends might be made of so horrible a fact , it was opposed by the lords and commons who vouched records and called to witness the justices and others ▪ that were learned in the laws of the land , that in the church of england ▪ it hath not been accustomed that the offenders flying to a church ought to have immunity for debt or trespas or other cause whatsoever , except for crime only , and certain doctors of divinity , canon and civil laws being thereupon examined , and sworn before the king himself , to speak the plain truth , said upon mature and sound deliberation , that in case of debt account or trespass where a man is not to loose life or member , no man ought to have immunity in holy church , and said further in very high expressions , that , god saving his perfection , and the pope saving his holiness , nor any king or prince can grant such a priveledge , and that if the king should grant such a one , the church which is and ought to be favoured and nourished , ought not to accept of it , whereof offence or occasion of offence may arise , for it is a sin and occasion of offence ( saith the record ) to delay a man willingly from his debt or the just recovery of the same . and so little did that great affray , & complaint of a then powerful clergy , for that breach of priveledge , & the trouble of the king and parliament therein , perswade our forefathers to any dislike of the way of proceedings by way of arrest , by capias or utlary thereupon , as at another parliament holden in the same year , for the avoiding of debtors , withdrawing themselves and flying into places of churches priviledged , it was ordained by the king upon the petition of the commons in parliament , that in such cases after the creditor had brought an action of debt , and procured a capias to be thereupon awarded , and the sheriff returned that he could not take the defendant because of places of priviledge , another writ should be made with proclamation to be made at the gate of such priviledged place by five weeks continually every week once that such person render himself . and the succeeding kings were so careful not to suffer particular grievances to disappoint the effects of good laws , made for the generality of the people . as by a statute made in the first year of the reign of king henry the fifth , it was ordained that in every original writ of actions personal upon which an exigend shall be awarded , the names of the defendants and their additions shall be mentioned . and by another made in the th year of the said kings reign , upon the petition of the commons as the statute witnesseth , like process for the common profit of the realm , saith the preamble of that statute shall be had in writs of forging of charters or evidences by capias and exigend as in trespass . by a statute made in the year of the reign of king henry the sixth , sheriffs shall take bonds securities or sureties for the appearance of such as be arrested , except upon writs of execution capias utlegatum or excommunicatum , by a statute made in the th year of the reign of king henry the th because there have been great delays ( saith the preamble of that act ) like process is given in actions of the case as in actions of trespas or debt . by an act of parliament made in the sixth year of the reign of king henry the eighth , proclamation shall be awarded to give notice unto him that dwelling in one county , shall be sued to an exigend in another . by a statute or act of parliament made in the three and twentith year of his reign , because there are many delays in actions of annuity for that process of utlary , saith that act doth not lie like , process was granted by the king in writs of annuity as was formerly used in accompt . writs of capias , exigent and outlawry were allowed in wales by a statute made in the th year of the reign of the aforesaid king. and two several statutes , the one made in the . year , and the other in the th year of king edward the th , taking notice that for want of such proclamations , many of the persons inhabiting in wales , lancashire , cheshire , or chester , were without knowledg or cause of suit wrongfully and unjustly outlawed to their utter undoing , did without abrogating the right use of the proces of utlary ordain , that upon every writ of exigend against any persons inhabiting in every of the said counties or places , proclamations shall be made and awarded , directed to the sheriffs of the several counties where the defendants inhabit , do give notice thereof . by an act of parliament made in the fifth year of the reign of queen elizabeth , three several vvrits of of capias with proclamations , with the penaltie of l a time shall be awarded against an excommunicate person that cannot be taken by the sheriff upon the writ of capias excommunicatum granted out of the chancery . by a statute made in the eighth year of her reign , for that many of their malicious minds , and without any just cause did procure divers of the queens subjects to be arrested , it was enacted that the defendants should recover their costs and damages where the plaintiffs doe delay , discontinue their suits or be non suited . and by an act of parliament made in the one and thirtieth year of her reign , it was for the avoiding of secret outlawries in actions personal , ordained , that upon every writ of exigend awarded against any person , three several proclamations shall be made by the sheriff of the county or place where such defendant inhabiteth , first at the county court , the second at the quarter sessions , and the third at the church dore of the parish where such person inhabiteth . and the like to be done in the county palatine of durham where as the statute saith many men have without knowledge been outlawed , to their utter undoings , if some speedy remedy be the sooner provided but those misdoings were not not then accompted to be sufficient to bereave a multitude or far greater number of the people , of the good which they received by the process of utlary . by an act of parliament made in the three and fortieth year of her reign , the procurers or makers of any warrant to summon , arrest , or attach any person by his or their body or goods to appear in any of her majesties courts of justice not having before an original writ or process to warrant the same , shall be imprisoned without bail or mainprise , and not be delivered until he shall have paid l . to the partie grieved , besides his costs and damages , and l. a peice for their offences to her majestie , her heirs and successors . by an act of parliament made in the th year of the reign of king james , the lands of him which dieth in execution , shall be chargeable with the debt . by an act of parliament made in the th year of his now majesties reign reciting , that by the antient and fundamental laws of this realm , where any person is sued , impleaded , or arrested by any writ , bill , or proces , issuing out of any his majesties courts of record at westminster , at the suit of any common person , the true cause of action ought to be set forth , and particularly expressed : it was ordained , that where the true cause or certainty of action is not expressed , in any such vvrit , bill , or process , the sheriff shall take no greater bond for any defendants appearance thereunto , then of the penalty of forty pounds . which in such a length of time and approbation of many statutes and acts of parliament , and of our judges in courts of justice , in the awarding and allowance of such kind of writs and process , which as the rolls and records of the court of common pleas in the th year of the reign of edw. the , and of former kings reigns do declare , were not granted of course ( as for the ease of the people they have been in later times , by sworn and experienced officers ) but upon grave and deliberate advice , upon petitions or motions to the judges , and the names sometimes of the chief justice , and at other times of the particular puisne judge that granted them , mentioned in the latter ends of the entries thereof , might if there had been no vestigia or track of the necessary process of arrest , to compel men to appear in courts of justice to be found , a multis retro seculis ex longissima experientia observata , in almost all the foregoing ages and wisdom of the auntients , abundantly serve to recal that humour or desire of novel experiments , or imposing or practising upon our laws and liberties and conduct those sons of innovation to a better obedience and veneration of our laws , rules of right reason , and necessity of maintaining the indispensable , antient , legal power and authority of justice , in the blessings of that which we have already received , and may hereafter , receive by its due administration , if we do not give entertainment unto the wild proposalls , of those who in their plenty of ignorance , obstinacy , and interest , would have they know not what . and bring upon the nation , and themselves , and posterities , the many sad effects and consequences it will produce , and may give them to understand , that having such a small assureance of an infallibility , they may do better to stop the carrere of their so causeless prejudice , against the process of capias and arrest , and observe what their neighbour and other nations have adjudged to be very necessary and unavoidable in their proceedings in courts of justice upon personal actions . who have not so lost or forsaken the antient customes and pathes of their fore-fathers but that the same or very like , what is , and hath been so long in use amongst us , may be seen amongst many of the most civilized of them , and was so early in the world as it seemes , saith john oldendorpius to be deduced from the laws of god and nature , right reason and necessity . by an edict or law of theodorico , king or emperour of the gothes , made in the year of our lord god , arrests of the bodies of defendants , were allowed to be made . by a constitution of charlemaigne , whose dominion extended over the greatest part of europe , made about the year of our lord god . the houses of those that with-held their tythes were to be seized , and if they opposed and presumed to enter again of their own authority , the ministers of the common-wealth were to put them in custody . in the empire of germany , more especially in famous mart towns , and imperial cities , as frankford upon the mayn lipsich , norinberg , &c. ( saith john koppen in rangensdorff , chief councellor to the elector of brandenburgh ) arrests for debt are frequently made , and the debtors imprisoned , and this saith he , a vetustissimis romanorum legibus originem sumpsit , had it's begining from the most antient roman laws , a clark in holy orders , and likely to run away , a debtor that hath no land , or is likely to remove away his goods , is a prodigal , or contumatious , refuseth to appear , and cannot give sureties , may by the laws and practice of those countries , & jure saxonico , be arrested and taken . in poland , he that will not or cannot give bayl to answer the action , is arrested . in russia when any of the officers of the courts of justice , do come to a defendant , if he give not bayl , he is to be detained in custody . in geneva upon a return or certificate , that the defendant hath nothing , he is arrested . the like course of arrest and compelling of men to appear in judgment , is and hath been long ago practised in the kingdomes of france spain , hungary , scotland , and in the dukedom of savoy , and many other places , who do think that they have a great deal of liberty , as the common-wealths of venice , holland , and the united provinces , the hanse towns , switzerland and genoa , &c. and in new england , whether the ignorant and mistaken consciences of many , having carried diverse of our people where they would , make their own laws , and be independent of the government of this kingdom from whence they came they do notwithstanding . not want it , where for the better expedition , and execution of justice ( as the words of their laws are , ) they do ordain that every court of justice , shall have ministers of justice to attach and fetch , and set persons before the magistrates . and is likewise in practice in some nations that are more remote , and have only the light of nature , and some information of reason to direct them , as namely in the region of mallabor , where if the debtor do break his day with his creditor , and often disappointed him , he went to the principal of the bramenes , of whom receiving a rod , he goeth to the debtor , and making a circle about him , chargeth him in the name of the king and the bramene , not to depart from thence until he hath satisfied the debt , and if he do not , he must starve in the place , for if he depart , the king will cause him to be executed . and when that which hath been here so truly ▪ and irrefragably asserted , will never deserve to be thought a postulatum conclusion or principle begged , but is de facto apud multos & de jure apud omnes , so done and practised , by very many nations , and of right ought to be by all . chap. v. the process of arrest and vtlary , are a more gentle way of compelling men to pay their debts , or to appear in courts of justice then that which was formerly used . every man that would entitle himself to any reason , or not wilfully divorce or separate himself from the company thereof , and shut out that light which the wisdom and practice of former ages have tendred unto him , may give way to so many cogent arguments and acknowledge , the course and way of our process of arrest and utlaries , to be a more gentle way of proceeding , in the doing and execution of justice , then that of the forty stripes , which in the most righteous laws of god were in cases of controversie betwixt men , ordered in none of the greatest sort of offences , to be given to him who was condemned by the judges , then the taking away of the two sons of the widdow , of one of the sons of the prophets by a creditor , to be bondmen for their fathers debt , the selling of a debtor and his wife and children , and all that he had by the creditor in use amongst the jews ; or taking them by the throat , saying , pay me what thou owest , and haling him to the judge , who cast him into prison , mentioned by our saviour christ ; the cutting of insolvent debtors in pieces , after a sentence and small limitation of time ; and giving every creditor a piece learnt by the romans , from the athenian and grecian laws , but never put in practice for the cruelty thereof ; the nexus and taking of debtors prisoners by the creditors own authority ( until they had by some good laws been taught a less fierce , and cruel way of recovering their debts ) and keeping them bound in chaines in their own houses ; the making the children slaves for their fathers debts , by the people of asia , that large quarter or fourth part of the world ; and the like customes used by the athenians and romans , or the usage of the longobards who , if the debt were not payed after the third time demanded , did suffer the creditor to pawn the debtors body , or take by order of the king or judge , his men or maid-servants prisoners ; or that of the wisigothes , the spaniards ancestors , whose laws ordained a penalty of three pounds of gold to be payed by the offendor , or such as contemned the kings comma●d and authority , and if he were not able to pay it , was to endure quinquaginta ictus flagellorum , fifty lashes with a whip ; or of the russians beating with cudgels their insolvent debtors , upon the calves of their legs , and bottoms of their feet ; or if the debtor be poor , set him under a crucifix , and cause the plaintif to take his oath over his head , that his debt is true , which being done the duke causeth the defendant to be brought home to his house , putteth him to labour , or letteth him to hire until he be redeemed . or of the aegyptians in not permitting the bodies of the debtors to be buried , but to be left as a pawn to their creditors , donec haeredes aes alienum integrè solverent , until their heirs or executors paid the debt , and was so imitated by the athenians , the wisest nation of the learned greece , as the brave cimon was constrained to yield himself a prisoner in chains , as the manner then was , to the end that his glorious father miltiades ( who had deserved better of them ) dying a prisoner for a debt owing to the publicque , might be buried ; and by the gothes , and some other nations under their large dominions , until by a constitution of theodorico , king of the gothes , and some other princes , tanquam inhumanum & erudelitati proximum ; it was prohibited under severe penalties ( which in these times used to be more then threatned ) as inhumane and too near bordering upon cruelty , and is notwithstanding yet at this day used in some parts of the lower germany ▪ as holstein , brunswich , and holland ( that great monopoly as they think of liberty , when they do but dream of it ) for debts or money owing to private persons . or not so rigid or uncompassionate , as the way of prosecution for debts is , in the vast empire of the great mogul , where if the debtor do not pay his creditor , according to the time limited by the judge , he is severely whipped , and his wife and children sold for slaves by the creditor ; or the merciles manner of poinding horning , or outlary , and caption for debts , upon short and almost impossible prefixions used in scotland . when our writs of pone or attachment , by the favor and unwillingness of sheriffs , to execute the extremities and rigour of writs , and proces of law , or their kindness procured by some other perswasions of rewards or power ; were in the moderation of our laws , and courts of justice ; which canutus by his laws desired to be ad divinam clementiam temperata , not so exactly executed , or the defendant enforced to put in real pledges and security , as formerly . and the distringasses have only small , or little issues returned upon them , nothing near amounting to the rents and proffits of the lands , goods , and chattels of the partie prosecuted , betwixt the teste and return of the writ . and the writs of capias , when made out are very often easily satisfied by an attorneys undertaking , to appear to the action , or if bond be given to the sheriffs by two sureties , for the defendants appearance , are not one in many hundreds enforced to give special bail afterwards ; and if the demand in the writ specified , be under . pounds , are by the rules and custom of the court of common pleas not to be insisted upon , or if above , not at all in the case of defendants , being executors or administrators ; and if the defendant , for want of bail for his appearance , do continue in prison three terms , and no habeas corpus be brought , or declaration given , or further prosecution made , he is to be delivered by a writ of supersedeas , made of course upon the apparance to the action only , without any special bail put in before a judge , or bond given to the sheriff ; and where special bail is very seldom given , it is but that if judgment be obtained against the defendant , he shall render his body to prison , or satisfie the condemnation . our writs of arrest ad respondendum , being ad cautionem & custodiam non ad poenam , but to enforce a gage or pledge , or to detain , or put a debtor or defendant into the custody of the law , to the end he may give bail judicatum solvere , to abide the judgment of the court , or if no bail be required to appear to the action . and the proces of utlary , which although they were not ordinarily used in actions of debt , before the making of the statute of e. . was notwithstanding in cases of trespas for breach of the peace , and for contumacy , and contempts in not appearing warranted , by the laws of king edgar , canutus , edward the confessor , and the practise of our saxon ancestors borrowed , and deduced from the ancient customs of other nations , is not now so dreadful as it was in former ages , when , as bracton , and stamford do agree , the partie outlawed did forfeit patriam , amicos , & omnia terras & tenementa bona & catalla sua , all that he could entitle himself unto , was out of the protection of the king and his laws , and could not bring any action , until he had rendered himself to prison , obtained his charter of pardon , brought his writ of error , and given bail to answer the action ; but may now without bail , unless specially required , be admitted to reverse the utlary before judgment , upon defect of proclamation only , or some small error without a writ of error , or the record certified into the court of kings bench , or errors assigned , with other the many troubles and charges which that way produced . the plaintifs for fear of obstructing , or narrowing the wayes of justice , are not put as they were anciently to find real sureties , to prosecute and make good their actions , or to pay a fine to the king , if they do not as our laws do intend they should , or to make oath of their debts , or de non calumniando , that the action is not prosecuted in malice , or upon sinister ends as the civil law enjoyned . and the statute of westminster , the second doth in writs of execution , against the goods and chattels of a defendant , except boves & affros de caruca sua , oxen and horses of husbandry , and the writ imports as much in the tenor of it , the judges do without any inquisition or proof , that there were not other goods sufficient to satisfie the execution , permit for the creditors more speedy attaining to his satisfaction , all the goods to be taken in execution , which in more ancient times was so unusual , as a defendant hath brought his action against the sheriff ▪ and the plaintif for taking them in execution , when there was other personal estate sufficient : and do also suffer the plaintiff to prosecute the sureties upon a bond , when the principal hath not been sued , and was sufficient to pay the debt or dammage , which by the former course , and practise of the law was not allowed . and our writs of exigent , and outlary were truly , and properly only to be made use of , where the defendant refuseth to appear in contempt of a court of justice , and the proces thereof is fugitive , or incertain where to be found , taken , or arrested , hath no visible or certain estate , or lurketh in some liberty ( of which there are many in england and wales , where the kings ordinary writs , and proces do not run , or have any power or force ) and a capias utlegatum carrieth with it , in the same writ a non omittas propter aliquam libertatem , and impowereth the sheriff to enter into any liberty , and arrest the defendant , and by a special capias utlegatum to seize , and take at the same time all the defendants lands , goods , chattels , and estate into the kings hands , as forfeited for his contempt ; and that seisure transferred into the court of exchequer , bringeth the plaintif an advantage , to take a lease of the king of the lands so seised , at a very low rent , until the defendant purge himself of the contempt , reverse the outlary , give bail , and appear unto the action ; which being so consonant to the outlawries bannes , and proscriptions of germany , and other nations , kings , and princes in the like cases , to preserve their own authority in that of their courts of justice , and requiring some severity , and a more then ordinary proces hath been all the means , which without force and violence , and a greater disturbance of the people our laws , and a long custom , and usage of time have hitherto prescribed , can contrive to bring unwilling men to judgment . chap. vi. the delayes , and inconveniences of the proces of summons , pone , and distringas were a great , if not the only cause of the disuse thereof . for the way and course of summons , pone , and distringas , so much in use before that statute of e. . was unto plaintifs as full of delayes as they were of increase of charges , and trouble which a view of the old records of the court of common-pleas , before the making of that statute , by the many writs of alias , and pluries distringas with issues , forfeited and returned upon them , occasioning a great pro●it to the king , and less to the subjects , and the many writs of testatum distringas made into other countries , where the plaintifs averred that the defendants had lands , and estate suffi●ient , and writs of averment and enquiry , made out upon too small issues returned , directed unto the justices of assize , to certifie if there might not be more issues returned ; and such a writ of enquiry to be executed in the lent , or summer vacations , could not but cause a more long , chargeable , and troublesome delay , to get better issues to be returned , may help to attest the more necessary , and better use of the proces of capias and arrest and that writs of exigent and outlawry , will in the cases aforesaid , propter inevitabilem necessitatem be everlastingly necessary ; especially when in the same parliament of e , . wherein proces of outlawry in actions of debt were granted , a great complaint was made , that the steward and marshal of the kings house , or their deputies did upon actions attach , and distrain men by ten marks of their goods one day , and by as much the next day , to their utter ruine and undoing . and the goods and chattels must be such as the sheriff can be confident , the defendant hath a property in , for otherwise he will require bonds , or sureties of the plaintif , to be saved harmless ; and where the estate doth lye only in goods and chattels within an house , the sheriff may in a town or city , where are many inmates or lodgers , and three or four sometimes in an house together , be not a little puzled , to know into whose room he shall enter , or upon whose property he seizeth , and his serjeants or bailifs may be afraid to enter and distrain , for fear of actions to be brought against them : and many of the goods and chattels , may be such as the law doth not allow to be distrained ; or if the defendant hath lands & a distringas issueth out against him , and hath no stock or cattle upon it , or they shall be beforehand eloigned , or driven away ( as it may often happen ) there will be little profit made of the land , betwixt the teste and return of the writ , especially if it come to be executed in the winter season , or that much of it is in lease : and then he must do as well as he may to get tenants , whereby to raise the profits , or let it lye for crows and trespassers to raise it for him , for tenants ( such as wish well to the defendant , or are depending upon him , being not likely to be willing to take or rent it at all ) will be hardly got ; and those that do malice or maligne him , will ( if they may not have it at cheap rates ) be unwilling to adventure the hazard of actions of trespas , or other inconveniences for a small term or time , which can be no longer then until the defendant shall appear , or make his peace with the plaintif ; or if the plaintif should himself take a lease of it , for such a short term from the king , if he may not have it at a very easie rate , he will be as little a gainer as the defendant by it , and as far from the recovery of his debt , as those that had lately writs of distringas , against the company of the vintners or grocers , in actions of debt for very great sums of money , whose lands though it was well known they had a great proportion of them , belonging to their several companies , were so invisible as the sheriffs or the bailifs of the county where they lay , could not discover , or would not tell where to find them . and if they did or could find any lands , would to avoid the trouble of an actual eecution of the writs of distringas , whereupon they were allowed no pondage fees , return small or petit issues , and but such as they could easily answer , take off , or procure an indempnity for , to save themselves harmless . or if a tenant be himself in debt , and be distrained , and his stock taken away , he is sure enough to be undone , and his landlord not a little prejudiced also by it , when for want of stock he cannot menage , or hold his farm any longer , which the statute of westminster the . made in the th . year of the reign of king edward the first , did as well believe as foresee , when it prohibited the taking in execution the cattle and utensils of husbandry , now not at all as to that particular obeyed or observed . and the writs and proces of distringas will be much more inconvenient , and destructive to trade and trades-men , when they become creditors , or shall be made defendants , and be distrained by proces of distringas for debt , or in any other personal action , for then such a defendant may suddenly be ruined in his credit , & not only himself ; but ten or . of his creditors suffer not a little by it : and it may be when all is done , the action may appear to be but upon some malicious pretence , or upon covenant , or action of the case battery or trespas , where in no adjudication of the value of the action can be , had before a trial or writ to enquire of dammages , and one hundred pounds worth of goods may be taken or spoiled , upon an action of less then so many shillings , for the sheriff to have enough will not fail to seize more if he can come at it , then the demand of the writ or the plaintifs suggestion amounts unto , and the defendants estate will thereby become ruined and racked , as far as the greedy , unconscionable , or knavish pretences of a plaintif ( for all are not likely to be conscionable or reasonable ) shall carry him unto , and after he shall be thus pulled in pieces , or condemned and executed before he be heard or come to his trial , or can well know what it is for , will be left afterwards to make himself up as well as he can ( which to a trades-man was never easie ) and seek his revenge or remedy , by as many suits in law or equity , as himself , or his friends , or necessities shall put him upon . and when he hath appeared to the action , after he hath been undone a great deal more then the action comes to , cannot easily restore , or so make himself up again , as to be in the same plight , or condition of credit which he was in before . and it is not also unusual to some tradesmen , when they find themselves sinking , or to be in any desperate condition , or likelyhood of breaking , to endeavour more then they should , to be most commonly before-hand with their creditors , make away their goods and wares , lodge them in other mens hands , cover them under some secret , and never to be discovered trusts , and putting as much money as they can into their purses , retire themselves into some place incognito , shut up their shops , and leave little or nothing therein , and assoon as they can make it their business to compound , and give their creditors for very great sums of money owing to them , no better a satisfaction then three or four shillings in the pound , and keep the overplus for their labours ; and a setting up again , which they could not so unawares or advantageously , to their evil ends , have done or contrived , if they had been arrested . all which or many more mischiefs , and inconveniences happening to that kind of dilatory proces , may appear to be no over nicely guessed or strained consequences , if if shall be but considered what an abundance of hideous , and remediles mischiefs , and inconveniences , would every day , and long ago have happened to shop-keepers , and men of trade , and credit in the city of london , and the suburbs thereof , if the proces issuing out of the courts of common pleas , and kings bench , and the courts of the city of london , against them had been not to arrest defendants , but to distrain , and seek after their goods and wares , when the property of the defendants wares and goods may be so concealed , or disguised by bills of sale , fraudulent deeds or contrivances , ( the wares in a trades-man shop being many times other mens , who upon some allowance of share , have employed or trusted them to trade withal ) as there would be a necessity of suites in chancery , to discover the right owners . many or some of which inconveniences , being before the making of that act of parliament of of e . experimented , or well understood , or foreseen , might cause our forefathers to forsake , and disuse the former way of summons , pone , and distringas , and betake themselves to the more useful , and expedite way of proces of arrest or outlary , which hath been since evidenced , to be much more accommodate to trade , and the good and benefit in general of the nation . and was not denyed to be truth , and reason by mr. charles george cock , who being something of a common lawyer , but nothing at all of a civil , and advanced in the times of usurpation , to be one of the judges , in the then so called court , for probate of wills , and granting administrations , could in his book printed in the year , entituled the houshold of god upon earth , or an essay of christian government , dedicated to the family of god over the whole earth , but more especially to them of the houshold of faith , in the common-wealth of england , after a rhapsody of whymsical propositions for reformation , and invectives with ill will enough , against the proceedings in the courts of justice , arrests , and outlaries , delivered his opinion , concerning the writs of capias and arrest , in these words : that anciently first goods , then lands , then liberty was to be seised for debts , &c. vpon a just and proportionate rule , necessity found wayes to evade , quaere the goods , and they were others ; quaere the lands , and they were aliened ; and to run through the difficulties of all those trials , the burden was found too great , and therefore the law of imprisonment at first by arrest was brought in . chap. vii . the writs , and proces of arrest , and outlary have increased , preserved , and encouraged trade , better secured the creditors debts , and made the borrowing of money more easie then it was before . and therefore the proces , and writs of capias , arrest , and exigent , the latter not being able to subsist without the former , having been both of them , in their several kinds , so very beneficial and avantagious to the lawful increase of trade , now almost every mans desire and concernment , and in that and all other matters , as well concerning debtors as creditors , should not be turned away when they have so long , and faithfully officiated in our gates of justice , and assisted in the execution thereof ; and although they are now gray , and hoary-headed , and full of years , are not grown impotent or feeble , but having a perpetual youth , and spring attending upon their endeavours , have made the borrowing of money more easie , and the creditors better secured then they were before , the making of that statute of e. . and the more general use of arresting of the body , or relying upon it , as the better security ; and not only in the reason , but the long experimented good effects and use thereof , made good , and verified the design , and expectation of the act of parliament , for the increase and continuance of trade , made by king edward the . at acton burnel , in the th . year of his reign , which to prevent the loss of forreign merchants debts , which did greatly impoverish them , and caused them to withdraw themselves , for want of a speedy way of recovering their debts , did ordain the taking of recognizances , before the major of the staple , for the security of their debts , and that upon failer of payment , if a writ of execution had been sued forth , and the moveab●es , and personal estate should not be sufficient to satisfie the debt , the debtors body should be taken , put , and kept in prison until he had made agreement , or his friends for him . and time and experience have in the change , and vicissitude of the manners , customs , and affairs of the nation , and the inundations of necessities upon the lower , and poorer ranks of the people , brought them to a very great assurance . chap. viii . the pawn , and engagement of the body , is most commonly a better security then lands , or personal estate , upon which the borrowing of money was not only very troublesom , but difficult . that the pawn of the body , and liberty of a debtor being so dear and precious , to which the real and personal estate , if they have any , or shall have any , being as it were annexed and concomitant , are most commonly the essentialia consecutiva , and the collaterales sequelae & appendices , to the person of the debtor ; and as to what is in his immediate possession , or are other wayes in his dispose or power , are as incorporate and consocate with it , as the contenta are in , or with the continens ; ( the goods and chattels being , as it were ipsa vita hominis & tanquam alter sanguis , as the life and life blood , ) was the instar omnium , the most easie , most certain convenient , and obligatory kind of security . and must needs be so , when the taking of pledges or pawns had such a restraint laid upon it , by gods own most righteous laws , given to his chosen people of israel : not to keep the poor mans rayment or covering , after the sun was gone down , for that it was to be his covering . and he that was to take it , was not to go into his house to fetch it , but stand abroad , and the man was to bring the pledge unto him . and by the necessity of the making of several laws , by diverse kings and princes in other nations , did appear to have been very troublesom , and inconvenient both to the borrowers and lenders , when horses , oxen , swine , sheep , men servants , maid servants , and children , were either voluntarily given as pledges by the borrower , or violently taken by the lender ; and were the causes of making many a law or constitution , for the taking away of grievances , or abuses happening by it . as when a man gave an horse , or a servant for a pledge , he was to pay any dammage which it did in that time ; if gold , silver , or any other ornaments were pledged , and happened to be burnt , the creditor was to purge himself by his oath , that he was no cause of the dammage ; if a pledge was given , and a surety with it upon the debtors oath , and the oaths of the neighbourhood where he was born , the party pledging desiring to have it again , was to allow the creditor the curiosity of his choice ; of one , two , or three sureties none were to take pawns or pledges ; without licence of the judge ; and they which assigned it over unto others , whereby to exact more then was due , were to loose their debts ; and if the creditor did take more then was pledged , he was to pay four times the value , if he were sued for it within a year ; if a creditor took it against the law , and a man taken in pledge were killed , or any other dammage were done , the creditor , and not the owner of the pledge , was to pay it : if any man took a free-man as a pledge by force , and shut him up as a prisoner , he was to pay forty shillings penalty ; if the time for the pawn was expired , and it was not within that time redeemed , he was to bring it before the judge , whereupon an apprisement made by three honest men , he was to be licensed to sell it , restoring to the owner the over-plus . if men or maids were taken in pledge , and being kept in the custody of the creditor , had stolen any thing , he was to endure the dammage . if oxen , horses , minuta animalia , or smaller cattle , vestments , jewels , and vtensils of husbandry , remained as pawns with the creditor , by the space of twelve nights ; and they were not redeemed , he might make use of them as his own : and if he that owed the pawn or pledge ; complained that they were misused , he could have nothing but the creditors oath concerning it . if any did pawn a man or maid-servant , of another man 's by a mistake , he was to procure them to be released ; and if the creditor was questioned for it by their master , he was to take his oath that he thought the debtor had pawned them . if any debtor did against the law , give any man in pawn or pledge without licence , he was to pay fourty shillings penalty ; and if the creditor took hogs in pledge without order , both he and the driver were to undergo severe penalties . and the grievances and inconveniences , did by pawning and pledging grow so high and burdensom , as by theodorico , king of the gothes and italy , the pawning of the children by their parents was forbidden . and charles the great , or charlemaine , added to his lombardy laws concerning pledging , that he et ille cujus est causa , the emperor and the creditor would as they please shew mercy ; and ordained that no judge should cause men to pawn any thing contrary to law , especially their oxen , quia audivimus mu●●a damna & afflictiones propter hoc populum nostrum sustinuisse , for that he understood , that his people had lain under many losses and afflictions by it . and the borrowing of money by pawns , and pledges , and securing of it , tho●gh with less usury and brocage then now , was in the former ages so very difficult , and upon hard terms , as upon the putting in a fidejussor or surety : for a debt or money amongst the burgundians , he that became the surety , carried home to his house the debtor , there to remain as his pledge for performance ; and where the surety had not so secured himself , he was before witnesses to have three times more than the debt secured , or gaged unto him ; and if the debt were not paid within three moneths , was to retain it to his own use . and the old bavarians did use , to take the bodies of men for pledges or security , and shut them up as prisoners in their houses . nor was the borrowing of money in the kingdom of pegu or brama very pleasant , where the wife , children , and slaves of the borrowers are bound to the creditors , who may carry them to their houses , and there shut them up or sell them . and was not with us in the times of greater charity , which was then believed to be a scala caelorum very meritorious , and the most ready way to blessedness , so easie as it is now ? when in the reign of our king henry the second , and long before , and sometimes after , the lenders of money , if they were any thing suspicious of the return and payment thereof , did not seldom take an oath of the borrower , besides his bond or pledges , which gave the ecclesiastical courts an occasion , or pretence of taking cognisance of debts , and incroaching upon the jurisdiction of the kings temporal courts of justice ; as may be seen in many plea rolls , in our kings courts of justice , in the reigns of king henry the d. edward the , d . and d. where prohibitions were sent into the spiritual courts , by our kings and their temporal courts of justice , and actions were brought upon the disobeying of them by the parties grieved , as well against the ecclesiastical judges , as the parties therein prosecuting : quare traxerunt eos in placitum in curia christianitatis , in placito debiti contra prohibitionem domini regis ; and then there was no doubt , but that a sentence being given for the payment of the debt , an excommunication was upon the non prrformance denounced , and a writ de excommunicatum capiendo often granted by the secular power , to arrest , and take the body of the defendant ; which kind of writ and proces was as early as the constitutions or parliament of clarendon , in the tenth year of the reign of king henry the second . insomuch as king edward the first , to preserve the priviledge of his menial household servants , and prevent their arrests , and imprisonments upon excommunications , held it necessary to make and issue out his writ , de promulgatoribus sententiam excommunicationis in ministros regis capiendis & imprisonandis , to take and imprison such as excommunicated any of them . chap. ix . the difference betwixt borrowing of money , upon lands and real estate , and the procuring of it upon personal security , and that without trust and personal security trade cannot well or at all subsist . and the difference betwixt the borrowing of money upon lands and real estate , and the procuring of it upon personal security , may by the borrowers sadly be evidenced . when , security by lands is now most commonly by way of leafe and release , being a dark way of assurance ; and within the memory of man , at first only purposely concontrived by serjeant francis moore , at the request of the lord norris , to the end that some of his kindred or near relations should not take notice by any search of publick records , what conveyance or setlement he should make of his estate ; and by the sad experience of sometimes double or treble mort-gages , hath not appeared to have been so safe as the former , which was more publick and of record . and when for a security of two thousand pounds , the borrower must upon strange scrutinies , and almost a spanish inquisition ( the torture of the body only excepted ) have his estate , evidences , and credit put upon the rack , and be bound with an abundance of over-jealous , hard-hearted , thorney covenants , and unmerciful provisoes , and conditions too near of kin to the scottish moveable bonds , mort-gage lands worth four or five thousand pounds or more , give his answer upon oath to a bill in chancery , what judgments , statutes , or incumbrances are upon it , and so embroil that and the residue of his lands and estate , with statutes , judgments , and recognizances of great penalties , for the performance of those covenants , as he shall hardly be able to have any more credit by it , or money lent upon it ; or if the creditor , who to be sure to keep him in the chaines , or thraldom of his power and threatning , will seldom give him time for above one year or two , for the repayment of the principal money and interest , under the severity of a forfeiture , will , if he be a nabal , more eagerly then he needs or should , call for his money ; upon a pretence of the interest not being duly paid ( of which the back wardness and delay of the tenants may be many times the only cause ) or of his want of the principal money , which upon a due examination may appear to have more of a contrivance , then truth in it ; or if that will not trouble or disturb the debtor enough , will do all that he can to affright him , to quit his right in the land , and permit him to have a cheap bargain of it , by suggesting some flaw and defect to be in the title ; and tells him that otherwise he must call in his money , for he dares not continue it any longer upon so weak an assurance : and if he thus gets it at a lamentable cheap rate , can notwithstanding assure himself he hath a very good title , and such as needs no confirmation ; but if that will not do his business , and accomplish his griping design will exhibit his bill in chancery against him , to enforce him to pay the money , or loose his equity of redemption , whereupon a six moneths , or some not very long prefixion given unto him by the lord chancelor , or lord keeper , he must either upon that short warning sell the land at low and unreasonable rates , and great disadvantages and loss to a stranger , or take what pittance or little sum of money the mortgagee will find a conscience to give him , upon a release of his claim and interest in the land , which is twice and many times more worth then the money lent , upon some short prefixion or time of redemption allowed ; and that affording him but som small parcel of relief , and he being not also at that time able to procure a redemption , must lie down under his sorrow , and let the mortgagee enjoy the land , for scarce half the value . a due consideration whereof might either in equity or compassion become a court of equity , in such a case to order the overplus of the just price or value of the land , after the principal money , interest , and costs of suite satisfied , to be paid to the poor mortgagor , and his wife , and children , and be much more agreeable to justice and good conscience , then to deliver up the distressed mortgageor , to the greedy appetite or gripes of a merciless creditor or usurer bruise the broken reed , add affliction to affliction , and strengthen the hands of the oppressor ; which the prophet ezechiel saith , was one of the crying sins of sodom , in a time especially when too many of the loyal nobility and gentry have so abundantly suffered in their endeavours to rescue their king , country , laws , religion , and liberties from the pretences and oppression of a factious and disloyal part of the nation , who by plunder and sequestrations did too well know how to enrich themselves by the ruin of their betters , and having after all their villanies received his majesties mercy , in being themselves pardonned , cannot tell how to allow a christian forbearance to the sick , and languishing estate of a mortgageor , who hath been so much undone by them . and whether he can be able to mortgage the residue of his lands , or sell that which is already mortgaged , must take along with him as new additions to his heart breaking miseries , the fall or enforced abatement of rents , as much if not more then twenty per cent , and to give the fuller weight or measure to his troubles , be constrained to sell it after that abated rate and rent at sixteen years purchase , when it would before have yielded eighteen or twenty , and could neither procure two thousand pounds ●pon the former mortgage , or the latter , if he could attain unto it without one hundred pounds , given for the procuring of each two thousand pounds , and walk a great way , besides towards fourty or fifty pounds charges more , in the contriving and preparing the assurances ; and after many a scruple and rock of the lenders , never to be satisfied fulness of security , passed over many a weeks attendance and charge , in the humoring of his many times purposed procrastinations , to drive him into greater necessities , whereby the easier to procure his unjust advantages , and render him the more patient to endure that strappado , may , being bound hands and feet , and abundantly wrapt in sheep-skin , engagements , and incumbrances , sit down at weeping cross ; and wonder there was no express prayer in our litany , against unmerciful creditors , and such as make more necessities then they find , with a good lord deliver us . and if that now over trodden way be not taken , to dig down and demolish the borrowers estate , and foundations of livelyhood , will apply himself to as destroying a course , by extending the mortgaged , and all other lands which the debtor hath at a low rent ; and keep it so in his possession , and a careless management , and with so great a loss to the debtor , as the fiftieth year of jubile may come , before the lands by the unjust accompt of the mean profits , be able to shake of that burden , and bring an action also against him , and imprison him for the not performance of his covenant , to pay the mortgage money , or for breach of some other covenants in the deed of mortgage ; and if he hath any other lands of his own , or his wives , that can escape the fury of such a creditor , shall not by reason of the former incumbrance , be able , without great difficulties and cost , to borrow any more money upon what remains unmortgaged . and if the money could be borrowed of a citizen of london upon a mortgage , it must be of lands near london , or in some adjacent county , otherwise his nicetyship will by no means be intreated to lend any money upon it ; but he must be as unlikely as a poor schollar or poet , or borrow any more money , and may dream of a credit , and believe he hath a right unto it , when he is never more like to come in sight of it . when a country gentleman , whose credit hath not been tainted , could heretofore with ease enough sometimes upon his own single bond , or at the worst with a friend or two , and one of them but his taylor joyned in the bond with him , borrow fifty or one hundred , or two hundred pounds ; and the farmer or country-man wanting money to pay his rent , could upon a short warning procure fourty or fifty pounds , upon his own bond or bill ; and a citizen of london , or some other trading town , can with a small estate in money and no land , but a great care of his credit and performances , be trusted upon his word , bond , bill , or personal security , with ten or twenty times more then he is ever likely to be worth . and it is very well known , that a multitude of london merchants , retaylers , tradesmen , and artificers , in or about that vast city , and the overgrown suburbs thereof , being in their number about six hundred thousand men , women , children , and servants could not maintain or uphold themselves , in their several orbs and stations , withovt a trusting of their customers ; and being trusted themselves , or a confidence on both sides in personal securities , bargains , contracts , and promises ; which is very often done , and necessitated to be done without pawns or mortgage , security in the course of commerce and interchange of affairs one with another , by all merchants , seamen , retaylers , farmers , taylors , laborers , husband-men , and all sorts and degrees of people in the kingdom , and other parts of the world ; and even the landed men and free-holders , who are not the fortieth part of the nation ; and the copy-holders , when they do not deal for so great sums of money , as to surrender and engage their copy-hold estates , cannot in the multitude , diversity , speed , and management of their almost daily and hourly business one with another ; and at markets and faires , and elsewhere , avoid the taking or giving of personal securities or contracts , which cannot primarily affect those that have lands , or concern their real estates , but are to follow the persons of those that are debtors , for the performance thereof . so as it would be no probleme , or criple assertion , to aver that the forbidding of trust or giving dayes of payment , by which the citizens and trades-men of london , do gain more then they should do by enlarging their price , and items to a very great excess , and in some , as it may be feared , to more then a double or larger interest , and the taking of huge sums of money with apprentices , now more then formerly , become a part of their trade ; and a publique registring enjoyned of all money and debts , which they do owe and are engaged for , by credit or otherwise . would quickly manifest how trade would be undone , if it were not for trust upon personal securities , and performance , and the benefit , and necessity of writs of arrest , enforcing their debtors to make payment , or to be the more careful of it . and by so speedy a way of enforcing a defendant to appear to the action , make the merchants and trades-men so punctual in their payments , whereby they do get great credit and riches , and have given a confidence to all trade and commerce , which since the reign of king edward the . hath been hugely encreased , makes the poor man , which hath no great stock or estate , to be as good security for what he undertakes , as those who have greater ; and gives us the reason , why those that do lend money unto country gentlemen , or men of great estates do usually require a citizen , though he have but a very weak and small estate , and is more in danger of breaking then the gentleman , to be bound with him , and do think their money not to be very safely lent without such a security . and that great city and emporium , which sitteth upon many waters , and stretcheth out her lines to the utmost ends of the earth , would certainly languish and decay , if she should be deterred , or bound up from trusting , or being trusted ; and there would be none , or a very little trade and commerce in the nation , if it should not be driven by personal securities , when our merchants that do trade into persia , the east-indies , turkie , the levant , and norway , with as much money as commodities , having neither pawns nor lands to morgage , do not seldom deal upon personal security ; forreign merchants being in that manner contented , to do as they would have done unto them , and do many times borrow money in their own countreys , to give day and time of payment unto merchants , and their correspondents in other countries . and there would not be wanting , very great and many mischiefs , inconveniences , delayes , disturbances , and obstructions in the universal trade , and affaires of our nation , both at home and abroad , if that great and daily manage of our commerce at the royal exchange of london , for vast sums of money or the value thereof , twice every day , in every week , of every year , sundays , great festivals , and publick and extraordinary dayes of fast , or thanksgiving only excepted , should by a jealousie and distrust , in all merchants and men of trade therein every day concerned , and the actions and estates of one another , forsake their accustomed , and very laudable wayes of trust , and confidence in the credit , and punctuality of performance of one another , and not believe a bargain or contract to be well and securely made , or bills of exchange safely answered , without an almost infallible certainty , of the estates of those with whom they deal or correspond , and in their diffidence thereof ( when as to the sea and forreign trade , the winds and tides will not be intreated to tarry , and opportunities of vent and benefits , if not suddainly laid hold on , cannot be easily or at all times met withal , or gained ) adjourn the conclusions , or certain engagements of their bargains , contracts , undertakings , or promises , until they could consult with their lawyers of some of the inns of court , some not easily to be satisfied , conveyancers , scriveners , or men of scruple , how to make their contracts , charte● , parties , agreements , partnerships , or insurances to be without any , or very little , or seldom hazard or danger , or procure some perspective glasses to afford them a clear intimacy , or visibility into the estates of men , or a possibility of accidents , shipwracks , piracies , or sea misfortunes , or the breaking or knavery of retaylers , and render them as safe in their trade , and adventures against all contingencies , as any moral or worldly probability , or security can make them . and that their great concernment , and height of reputation , guarded by the wakeful eyes of publick notarial protests ( which is sometimes tromped upon them , by some of their forre●gn factors or correspondents , inadvertencies or over charging them , is of so britle and tender a nature , as a small gust of misfortunes , or adversities , overturns , and sinks it ; or a malicious or foolish report of being broke , or likely to break , shatters it all in pieces , and puts the not long before prosperous owner of it , to recover as well as he can the dammage sustained by it , and the shipwrack of credit can be no otherwise then exceedingly ominous , and dreadful to men that are to make much of their livelyhoods , and hopes to raise their fortunes by it ; when besides the many other disasters attending and lying in ambuscado , the statute of bankrupt made in the reign of king james , doth in the character of a bankrupt jas. ca. . ( amongst other things declare , any merchant , retayler , or any other seeking to get their living by buying or selling , to be a bankrupt , who being indebted to any person , in the sum of one hundred pounds or more , shall be arrested for the same , or lye in prison two moneths or more , for that or any other debt , or afterwards escape out of prison , or gets forth by common or hired bail , shall be accompted and adjudged a bankrupt to all purposes and intents : and provide that such a one should have his goods and estate seised , and divid●d amongst his creditors proportionably to their debts , and be liable to the penalties of the said act , and the orders and provisions therein contained . for certainly without competency of trust and confidence in trade , and dealings one man with another , and a pawn or security of their bodies , subject to arrests , compulsion or disgrace , all commerce and traffique would be destroyed ; no merchant or chapmen will , or can give day for his wares , when he neither knows , whether his customers have goods sufficient to pay for what they buy , or where to find them , when the wares that he sells may either be used , or sold away again to another ; or if they could be met with again , will not be of half the value they were sold for . no man without personal security , contract , or promise will lend any money to merchants , because their goods are either at sea , or in forreign countries , and sent out so often , and upon so many adventures and hazards , as if they do , they will not know how to get it again . young tradesmen , and men of hope and industry , that have none or very little stocks of their own , will have no money lent them ; or if they have , it must be upon such other cautions or security , as may starve , and take away the hopes of their preferment . moneys given to charitable uses ( as they are many times ) to be lent upon security to poor tradesmen , or young beginners , that have little or nothing in estate or their shops , cannot without bonds or personal security be lent or distributed , according to the mind and intention of the donors ( mortgage of lands not being likely to be had ) for otherwise it cannot be done , but to such as are rich already . no merchant , or whole sale-men , will adventure to trust or sell to retaylors , upon one , two three , or ●ix moneths , as they shall be able to make or return it ; nor retaylers to retaylers , as they do often use to do , if they do not give personal security , whereby to be arrested , if they do not pay the money contracted for . no country vintner will without it be furnished by the london vintners or merchants ; no man shall know how to do good to a friend or servant , or set up a young man , if personal securities shall not oblige their proces of arrest . no tradesman shall be able to trade as they do now , and get his living and a comfortable subsistance , by retailing under other tradesmen ; nor any mariner , souldier , or servant be trusted , because they have nothing but their bodies to be answerable for it . many lawyers and ministers , who do carry much of their estates in their brains ; the arti●an in his hands , and a few tools ; the souldier the most that he hath by his side ; unlanded men or untrading batchelors or single men , all or the most part upon their backs ; and the smaller sort of farmers and country cottagers , having very little goods or houshold-stuff , may bewail their want of credit , when personal security cannot help them ; and all the trade and commerce , good will and charity of the nation , that was wont to flourish more by the care and credit , and honesty of men , then any certainty or visibility of estate , must , if necessities and occasions cannot be supplied as they were wont to be by bonds , bills , or personal security , now be turned into a way of pawns and bro●age , and three times more given then the value of that which is bought or borrowed , where ready money is wanting . and all credit and industry fall to the ground , especially if it shall be considered that not long before our late times of troubles and confusion , the money of some dutch and forreign merchants lodged here , being estimated to have been as much as five millions sterling , have been much of it by reason of our bringing down of interest to six per cent , and other disturbances called home ; and that the money current in the kingdom , is by no very random computation verily believed to be scarce enough to pay the interest of the capital , of what is owing by the people one unto another ; and if the course and way of credit should be now stopped , and turned out of his chanel , we may not expect to see any more happy effects of trusts and credit , as in this age of ours we have done in a rich sir john spencer , sir william craven , sir william cockain , and sir paul bayning , who beginning their world with no original riches , have gone out of it with the comfort and honour , of laying the foundations of several noble families , and every day in the hopes and flourishing of many young merchants , is ready to proclaim the great benefits of trust and credit , and that , which not seldom happens , by the only employ and advantage of another mans money : and the sad & ineluctabile fatum dismal , and not to be overcome disasters , which do fall upon those whose former props of trust and credit have failed them , when their friends stand afar off , and look upon them as lepers and persons infected , do by the ill government of their tongues and censures , debar them more then they should , of all the opportunities of fortune , or means to a more happy condition . it was credit and the care of it , not lands or a visible personal estate , which made our prince of merchants sir thomas gresham ; in the reign of queen elizabeth , to be able to lame the king of spain and his indies , in his design of subduing england , by draining of his banks beyond the seas with his personal security . it was personal security , credit , and the care of not having any man come twice to his house for money , which made sir abraham dawes , one of the farmers of the customs , in the reign of king charles the martyr , able to take of those who voluntarily offered it , one thousand pounds at a time upon his single bond or bill , which to support he did alwayes ( as he himself acknowledged ) keep five thousand pounds at a time in a chest in his house at interest , and when he had paid out any considerable part of it borrowed , and took in as much to replenish it . it was an imaginary credit , & an heretofore punctual performance of our late handy dandy men the bankers of london , paying one mans money with anothers that decoyed , and enticed almost all the money of england , into their running , ebbing , and flowing cash , upon their or their servants single notes , for some years & under their only hands , for five hundred or a thousand pounds at a time , for some years , after upon the masters single bonds . and it was credit and personal security , not so much any real estate in lands or houses , that have made the banks of lyons and amsterdam so to flourish , in the midst of wars , and abundance of taxes , and enabled the dutch , those mighty men of trade and money ; whose lands and territories , in all their seven united provinces , do in quantity scarce equal our yorkshire and lincolnshire , to ingross almost all the trade of the heathen and christian world , to raise five millions sterling at home , upon no more then as many weeks short warning , and to manage at a vast expence , a long and lasting war with the greatest kings and princes of christendom . it being certain that securities , or cautions for money or credit , cannot in the general be so safe possible , or ready at hand to be had , as personal security ; which as our bracton and fleta , in their divisions of actions into real , personal , and mixt ▪ have informed us , do inducere actionem in personam , make an action to be personal , for that the individual and very same money is not , nor can by the plaintiff be expected to be restored , but the value of it or dammages ; and it doth oblige the person , but not at the first the lands , goods , or chattels , as our statutes merchant , or of the staple , or recognizances in chancery , or elsewhere taken , do when they do carry in them a condition upon default of payment , to leavy the money upon lands , goods , and chattels , and upon the body , if the lands , goods , and chattels be not sufficient to satisfie ; and in a bond the words obliging are , obligo me haeredes , executores , & administratores meos , the land being chargeable in respect of the person , but not the person in respect of the land ; and the goods and lands , if any or the properties thereof are many times more invisible , then the persons of men ; for bonds or contracts do bind , and engage the person as much , as if he did thereby undertake to pawn his body , and subject it to an arrest or compulsion , to appear in judgment , if he should fail in the performance ; for all contracts and promises , saith fleta , have in them vinculum juris such a bond or obligation , as ties us to the performance of them , and is so personal and inseparable ; as it doth sequi personam obligati , go along , saith bronkhorst , with him that made it like the shadow with the body : and generaliter , saith bracton , jus gentium se habet ad omnes contractus , the law of nations binds us to the performance of them : for , saith grotius , he to whom the promise is made , hath by the dictates of natural reason a right to compel it by lawful means . for a man may be known where to be found , when his money , goods , or estate cannot , or what estate he hath at home , or abroad in his own or other mens hands in trust for him , or otherwise : and the pawn or pledge of the body must needs be the greatest tye upon a debtor ; for if a pedler travelling with a pack of pedlery upon his horse , hath his horse distrained and taken away , and he be put to carry his pack upon his back , or if the debt be so much as to lay hold on both , that cannot so disturb or trouble him , as an arrest will do of his person : or if a poor man shall have his only cow , and the instruments and tools of his daily labour taken from him , that will not so much affright or beggar him , and his wife and children , if he do not take care to prevent it , as an imprisonment of his body will do . and our bonds , are not so rigourous , severe , or jealous , as the moveable bonds in scotland , as they there term them are , which even for small sums of money with us ( but great with them ) can be so distrustful as to enforce the obligor to renounce beforehand , all manner of exceptions to the law , which may be proponed to the contrary , and all priviledges and jurisdictions , with a clause and consent inserted of registration , horning , and outlary , and to have the strength of a decreit to pay principal interest and charges , according to the obligees own modification , declaration of conscience or discretion ; and ten pound scotch money for ilke shilling scotish money , which shall be unpaid of the principal ; nor so fierce as in some parts of germany , where the creditor , if he suspected the debtor to be poor , will take juratoriam cautionem , make him swear that he would pay the money again ; amongst whom and the italians there were ostagia or undertakings , to give entertainments to the creditors with men and horses , at the sureties or debtors charges , till the debt were satisfied . and the civil law was upon contracts and bonds , for money lent or trusted , so well furnished with renunciations before-hand , of the benefits of law in general and particular ; as there is by butrigarius reckoned up no less then fifty three several sorts of renunciations , which the cruelty or diffidence of creditors did in their contracts and bargains usually , and as they pleased put upon those that had occasion to borrow or deal with them . but our nation keeping it self constantly to its own more gentle , and yet binding enough constant form of bonds and obligations for money , used here in england for some centuries of years last past , hath with its proces of arrest attending and guarding it , perswaded the people thereof justly to believe that that kind of proces hath produced such a better , more sure , and easie credit in the nation then was formerly , as it hath not only greatly encreased , encouraged , and facilitated the trade and reputation thereof , but it hath been its greatest prop , and support in the for many years long and bloody wars , betwixt the two great contending houses of york and lancaster , when estates in land were little worth , and where they were of any value , or enjoyed any quiet from the furies of war , or disturbance of seisures , attainders , or confiscations were until the th . year of the reign of king henry the th . and the th . year of the reign of queen elizabeth covered , and protected with secret and undiscernable uses , many of which were fraudulent , and in the many other also tosses , and troubles of our present and former ages , which may appear to be more then a conjecture to any , who shall but consult their own reason , and observations of the difficulties and inconveniences which would daily and hourly happen , in the borrowing , procuring , or securing of money , if nothing but pawns or pledges , at as hard a rate to private brokers many times as twenty per cent , or mortgages of land would be taken for security for money , or moneys worth , or the value of it , which in matters of trade would so quickly turn all into exchange and barter ; as a tradesman could not be able to furnish , or stock himself , or his shop , without either ready money , which many tradesmen , and not one in every twenty , are alwayes or often able to do , or disfurnish , or unstock themselves , and carry as much out as they endeavour to take in ; and how quickly and easie , upon the stock of credit , reputation , and opinion , one or more hundred pounds may be borrowed upon a bond with one or two sureties ? and how readily , and without any more ado one or more counter-bonds of the principal doth serve to counter-secure them . and where citizens do take apprentices , without whom they cannot manage their trade , and by taking too great , and in former ages unheard of sums of money , to teach them their mystery of gain , will find it to be as inconvenient to themselves , in that their new way of prentice trade , as troublesom to the parents of the apprentices , if they were to be satisfied with nothing but a mortgage , by security of lands , or pawns , or pledges to be given by them for their childrens honesty , many times dearly discharged , when as now their single bonds or covenants will suffise . and they ought not surely to be accompted too sanguine or over credulous , who shall give entertainment to an opinion , that if all the money which hath been borrowed in the times of our english troubles , lately past or long ago , or in the now times of our unparrelled pride , prodigality , and luxury , had been to have been borrowed only upon mortgages , pawns , and gages , the vitious and foolish part of the people of this kingdom , which are the far greater number , would have long ago suffered their follies , to have brought them into the sad condition of the egyptians , in the time of the more thrifty and forecasting joseph , when in a famine only of bread , prognosticated to continue for seven years , they were in the first year of it constrained , when money failed them , to take bread in exchange for their cattle , horses , asses , and flocks , and after their bodies offered as pledges upon the like occasion , and necessity to give up their lands for necessary ( but no wanton ) supplies . and although the first pawn or pledge , that is mentioned in the book of god , the most ancient and best of records , to have been given in the fore-noon of the world , was that of judah's signet , bracelets , and staff to his disguised daughter tamar , for a security of what his amours , and unlawful contract had promised ; yet shortly after his brother simeon became a personal security to his brother joseph , for the bringing unto him his youngest brother benjamin , and was in the mean time bound and kept in prison ; and reuben upon his return to his father jacob , to remove him from his unwillingness to send his beloved benjamin into egypt , offered his own two sons in pledge , that he would safely return him unto him again : and when that could not prevail , judah , without being bound or kept in prison the while by his father , became a surety for him as it were body for body , and that of his own hand he should require him . and the after ages have found so great a benefit , as well as a necessity of personal security , as here in england long before the statute of e. . the bodies of men , as well nobility as others , have to the great advantages of the kingdom , and upon great and weighty reasons and occasions of state , been given and taken as sureties and hostages , for and to diverse of our kings and princes . and by our laws agreeable in that and many other particulars , not only to the civil and caesarean laws , but of the law of nations the plaintiffs , when by our original writs , made out of the chancery in actions of debt , impowring the justices of the court of common pleas , to make proces and hold plea thereupon , the sheriff to whom the writ is directed , when he doth summon the defendant to appear before the said justices , being commanded to take sureties of the plaintif , that he will prosecute and justifie the action , was to take it by personal security , and not by any pawn or pledge . so as if there were not so many irresistible arguments , reasons , examples , proofs , and necessities for the ancient , long continued use of the writs of capias and outlary , beyond a prescription and memory of man , and many ages . that which hath in all ages been allowed , as the best expedient to secure from doing or suffering wrong , in case of lesser or greater crimes , as trespas , felony , manslaughter , murder , treason , or suspition of either , where the less favours are to be shewed , propter atrocitatem criminis , for the horridues of the fact , until offenders can be brought to judgment : for whom plegii sint donec se defenderunt carcer & gaola , the goal and the prison were to be securities , saith our old and learned bracton . and that old rule of law not used , to be denyed , kickt , or spurned at eadem ratio eadem lex , that a parity of reason in one law or case , may be the foundation of a like law in another ; and that other maxime of law , qui non habet in aere ●uat in corpore , where a man hath nothing in his purse to answer the law , he ought to suffer for it in his body , the punishment of contempts of the authority of courts of justice ; and the securing of mens debts , where there is a suspitio fugae , any suspition , likelyhood , or signs of the debtors running away ( which the old almans were so careful to prevent , as that rather then fail they suffered the plaintiffs themselves to take and imprison them ) may be called in as assistants , to maintain the right reason and necessity of writs of capias , and outlary in matters of debt , and other the like personal actions . and those very good effects of our said english law proceedings , and the consequences thereof , and benefits ad●rewed thereby , are and may be demonstrable by the less difficult way of borrowing money , more safe lending of it , and more speedy way of recovering , and getting it in with little dammage and loss , when in this last century , and present age of about one hundred and fifty thousand capias , or proces of arrest and outlary , sued out or prosecuted in a year , there are little more then one housand of them if so many so arrested or unbailable , as to be carried to prison , or being destitute of friends or money , do remain in prison a quarter or half a year at the most ; or if any do continue any longer , they are so very few in respect of the far greater number , which were threatned or might have been there ; as if the prisons of the fleet , kings bench , marchalsea , ludgate , the compters in london , newgate , the gatehouse at westminster , and the counties , and every other city goals , or prisons belonging to liberties in england and wales , shall be truly searched and examined , either as to those who are actually in every of those prisons , or are out upon writs of habeas corpus ; or how many new prisoners are every year , half year , or quarter of a year brought in upon actions of debt , trespas , or other civil actions ? and how long or little while they did or do there tarry the product of that accompt , may truly testifie that the terrors , and continual affrights , and trouble of arrests , with the tristis poenae expectatio paena molestior , often sad apprehensions of the many inconveniences of imprisonment , which do inevitably follow as to the charges , loss of estate and credit , do so summon and call together all their cares , and so gently and best of all conduce to the ends of justice ; and those that seek it , as it verifies and gives us the benefit and right use of that moderation , and care of our laws in that rule and maxime of it , to threaten more then execute ut metus ad omnes poena ad pauco● , that the punishment of a few may operate as much as if all did partake thereof ; the affright being most commonly that which makes the suffering to be so disproportionate , and less then what was necessarily or otherwise threatned . for if four thousand writs of exigent be awarded , and issued out of the court of common pleas in the year . which is very near an exact accompt taken thereof , not much above one thousand of them do come to be returned , filed , or outlawed : but the residue , and those very many which are not , are either stayed by agreements , or retraxits , and complyance betwixt the attorneys , or in order to appearances upon new originals , without returning and filing the writs of exigent : and may be taken to be no fancied calculation , when the number of all the capias utlegatums , special or general , made by the clark of the outlaries in the year . were no more then . the outlaries reversed no more then . and the outlaries certified into the exchequer no more then sixteen . and all the prisoners that were for debt , and other actions not criminal , in the prison of the kings bench ( being the greatest in england and wales ) either in the prison or the rules , or abroad by writs of habeas corpus , the third day of may . were under the hand of sir john lenthal knight , marshal of the court of kings bench , with the several times of their commitments , certified upon the special order and command of the then miscalled parliament , to be no more then three hundred ninety one ; of which there appears to have been committed in the year , — but — one . in the year -one . in the year — one . in the year — one . in the year -one . in the year -one . in the year -one . in the year — nine . in the year — five . in the year — two . in the year — three . in the year — four . in the year — seven . in the year — fourteen . in the year — fiveteen . in the year — twelve . in the year — fourty-six . in the year — thirty-two . in the year -fourty-one . in the year — one hundred thirty . and in the year — fourteen . and it must needs then be a wonder , and none of the smaller sort or size of wonders , how or upon what ground , cause , or reason , that so very ancient , rational , legal , necessary and useful way of capias , proces and outlary , derived and deduced from the laws of god , nature , and nations , should either deserve or come into so ill an opinion with some of the people , or that it should be called or understood to be an illegal , iron sharp and cruel , law , a tyranny , thraldom , mischief , slavery , lamentable bondage , terror , and sorrow of heart , and utter ruin● of the free born people of this nation , founded upon a misconstruction , and inadvertency of the genuine sense of the common law it self , and contrary to thirty acts of parliament , made in confirmation of magna charta ; or should be repealed by the act of parliament , made in the th . year of the reign of king e. . ca. . and by the statute of . e. . 〈◊〉 . or should now in its old age have no better a title then a grievance ; and those unjust rabsheka railing reproaches , ( when it hath been helpful to multitudes of men in several ages ) cast upon it . chap. x. the way of capias and arrest is no oppression or tyranny exercised upon the people , since the making of the statute of e. . ca. . or hath been hitherto , or may be destructive to their liberties . when as tyranny in the known and general definition and understanding of it , is a cruelty or power executed by one or more at pleasure , contrary to laws divine and humane , and inconsistent with the laws of that place or country wherein it is exercised : for laws do or at the least should intend to prohibit things unjust , and to order things good and useful , for that people and nation unto which they are applied : the intent of a virtuous and good lawmaker being as aristotle saith , to make the people good , and conduct them to virtue . or how it can be called tyranny , when it is no less then right reason , which should be the parent and director of all justice , when as god himself the most just and rational law-giver , the watch-man of israel , and the keeper of the liberties thereof , that gave unto mankind a reasonable soul , and that great blessing of reason , which is the divini luminis radius , a beam or ray of his own excellency , did in the laws , which he gave to moses when he talked with him , enact and ordain , that if a man shall deliver unto his neighbour money or stuff to keep , and it be stoln , and the thief be not found , the master of the house shall be brought unto the judges to see whether he hath put his hands upon his neighbours goods ( which was nothing less then an arrest . ) the law of nature that giveth every man leave , and enjoyneth them to work rather then to be idle and want , allows them not to hinder publick good , or disturb the rules of civil society , and work within the city of london or the liberties thereof , if they be not thereunto authorized as free-men of the said city ; or was it an oppression by an act of parliament , as king edward the . did in the th . year of his reign ? to limit artificers , labourers and servants wages ; or as queen elizabeth did by an act of parliament , yet in force and unrepealed , made in the th . year of her reign ; or when king henry the th . did limit the price of victuals and houshold provisions by an act of parliament , made in the th . year of his reign ; or an oppression of the people by sumptuary laws for apparel , made in his reign , and of his daughter queen mary's , which otherwise in a private man according to the bent and rules of nature , giving every one a liberty in rebus licitis & non prohibitis , in thing lawful , not sinful and consistent with the laws of publick good and civil society , would have been within the freedom and dispose of his own will. neither do the people of spain and italy , in their submission to a banda or rate , imposed upon the sellers of victuals and houshold provisions ; or the natives of france , spain , and the elective kingdom of sweden think themselves to be too much , or any thing at all abridged of their natural liberty , by yielding for publick good a just obedience to their sumptuary laws , lately made and ordained . for there is no law extant of this nation so made , but the subjects might chuse to incur the penalty or hardship of it , or if they should happen to be too severe or unfit , or not so necessary , convenient , or useful , as was intended or expected ; or like unto some of the laws of the medes and persians , which were said to be irrevocable , but the people had by the grace and favour of the soveraign , a remedy by parliament to abrogate , repeal , explain or amend them by substracting of some clause , or adding some other unto it ; for liberties are both by civil and common law defined to be of things not forbidden , otherwise vaga liber●● as may quickly come to be misera servitus , and bring those that would use an unbounded liberty , where it shall meet either with laws or a greater force , into a most miserable slavery . and therefore just liberties do by our common laws , saith sir edward coke , signifie the laws of the land : and that which is the law , cannot be called tyranny ; nor that which is against the law , liberty : and that ancient manner of trial for those who were criminally accused , called fire ordeal ( which ordained the partie suspected to walk blindfold over certain plow-shares of iron heated red hot , laid at a distance one from another , and if the party did not touch any of them , or treading upon them received no harm , he was declared to be innocent ) coming into this land with the eazons ; and the law of trial of titles by battle or duel , continuing here long after the norman conquest , and to this day in force in certain doubtful cases , though they had very much of blood and cruelty in them , could be suffered to wear out into better laws , and yet be obeyed as laws , whilst they were such ; the law of torturing or pressing such men to death in case of felony , as will not plead● or do refuse to be tryed by a jury , to be so many houres in dying , and have no other drink but kennel-water ▪ hath enough of horror in it to be found fault with , if it were not the law , and the only means to preserve the authority of laws and judicature , and there were not toom enough for men to avoid that direful way of punishment . for there was never since the blessing of laws , magistracy and government came into the world , any legal liberty not to appear in judgment , or not to be compelled to do right one unto another by judges , and those that were in authority commissionated by their superiours and if ever there had been such a liberty , it may be renounced or released by our own acts , as in the entring into bonds and contracts one with another , wherein we oblige our selves to the performance of any thing , which the laws of god and nature do demand of us , the obligees may dispense with it : and if the law of nature could have given us such a vast liberty , as some would pretend a right unto , the same law of nature doth in civil conversation and society give us a power sufficient to restrain it , and make that which at the first was merae voluntatis in our own wills , to be postea necessitatis a necessity , and out of any supposed freedom of our own wills or the power thereof . neither can any man by any rule of law charge our laws with oppression , because positive , or made in terror , or binding to strict rules , to avoid arbitrarines or oppression in the judges , or rigour and severity ( as in some particular mans case , they may happen to be by an abuse of them ) but the fault is rather to be laid at the doors of those who do violate and break them . for an unlimited or absolute liberty , and the liberty of the subject are each unto other contradictory , and there are no laws but do retrench , or take away some liberty which people had or took to do ill , or might be inconvenient to the publick good : for god the greatest and wisest of all legislative powers , did put the jews who were , as he saith himself , as the bracelet upon his arm , and the signet upon his right hand , under a law of fourty stripes , and of death if they disobeyed the sentence of the judge . and yet we do find them in their generations above two rhousand years , after in such an opinion of their freedom , as they thought nothing could be added unto it ; saying they were of the seed of abraham , and under no bondage , and are yet above sixteen hundred years since bragging of those their laws . when david had slain goliah , and might justly have expected the reward , of having his fathers house to be made free in israel , as some of the promised rewards , he did not when he durst not lift up his hand against the lords anointed , believe it to have been such a freedom , as might exempt him from the duty of a subject . when our king athelstan by his charter gave lands to st. wilfrid , and the church of rippon in yorkshire , in the words , al 's frelich as i may , and in all things be al 's free as hert may think , or eych may se. and king william the conquerour granted the earldom of chester , to his nephew hugh lupus , tenendum sibi & haeredibus ita libere ad gladium , sicut ipse totam tenebat angliam ad coronam , to him and his heirs , to be holden as freely by the sword , as he did himself hold england and the crown thereof : those very large grants did neither free the lands so given to st. wilfrid , and the church of rippon , and that earldom to the earl of chester unsubject the owners , or give either of them ( as our records and law-books in the course of the after ages will testifie ) any liberty not to appear upon any summons to the courts of justice , of our kings and princes : for legalis & liber homo , saith sir henry spelman , hath in our laws no other signification then , qui stat rectus in curia non exlex , seu utlagatus non excommunicatus vel infamis , &c. sed qui in lege postulet vel postuletur , who standeth right in the kings court is not outlawed , excommunicated or infamous , but may at law sue and be sued . and it cannot be denyed , but that in order to justice a summons or citation only might be sufficient , and would certainly be most consonant to the ease and liberty of the people , if they were or could be so of one mind or inclination to justice , as to obey the first summons , either of the parties complaining , or the courts of justice commanding , or not make excuses or delayes , hide themselves or run away , or be loath to come to it , be so of one kind of affaires and business as never or seldom to be absent , so alwayes provided of their councel , witnesses and evidences , as not to need any further time to make their necessary deffences , and to be of so much sufficiency of estate , as to have wherewithal to make a speedy answer or satisfaction : and that there were no such pravity or incertainty in the wills and actions of men , as that the creditor would be alwayes sure to demand no more then what should be just , and shew as much mercy , if there should be occasion for it , as the debtor should have need of , and that every man would be as willing to do right one unto another , as it should be asked or demanded of him . but that being not to be found in too many of the sons of men , or the smallest societies , nor was alwayes or is likely to be in the subluna●y and lapsed condition of mankind , some kind of compulsion was necessary , and a lesser then what is now , or hath been most anciently practised , could not be to any purpose , unless we could content our selves , and take that to be a happiness ( which would certainly never prove to be any to have justice ( which next to the creation , and the mercy of all mercies , the redemption of mankind , and the divine protection and providence , is one of the greatest blessings which was ever imparted by god unto it , and as to the continual guard and preservation of our lives , liberties and estates is more necessary , and less to be wanted then our food , apparel , houses or places of rest , and is the great support of the being , and well being of all humane societies ) to be a meer speculation or empty word , for schollars only to dispute of in the schools of ethiques ; or sit like old ely in a chair , with why do you so my sons ? and permit every man to deceive , & mischief one another , and render the justice of the nation to be nugatory , for the restraint now used of the body of a defendant , refusing to appear voluntarily , or upon a summons or citation , is not in vinculis or cippis , in chains or fetters , not ad poenam but ad cautionem , and in so moderate and gentle a manner , and lessening of their liberty as it is but temporary , and when so done , is but after many delayes , threatnings , warnings and forbearings , and most commonly occasioned by their own default , or some long abuse of the plaintiffs patience , and such a remedy or course taken , is no more , if rightly interpreted , then what common and right reason , necessity , and endeavour of right to be done did require . and when it is but majoris mali vitandi causa , to avoid greater evils , is so little in derogation of publick liberty , as although it may for a time be something prejudicial to some particular man , it proves many times to be a special help unto many men , to recover their debts or money due unto them , the want whereof might otherwise be a cause of their own imprisonment . and so long as any man is a member of a common-wealth , his liberty is to attend or depend upon the good of that common-wealth , otherwise he may claim a liberty as a free-man , but not as an english-man . nor could our fore-fathers in the necessity of bringing , or compelling men to appear in judgment , as well as of the preservation of the alwayes very necessary power , authority and jurisdiction of courts of justice , which do order and direct it ever , tell how to imagine that it should be understood to be a tyranny , to arrest , attach or imprison such as should refuse to appear upon the summons , or proces of a court of justice , or be fugitive or like to run away , or that it ever was or can be deemed to be an oppression , to enforce such persons in a legal and orderly way to pay their debts , and do that which god commandeth them to do , and hath no less justice or conscience in it , then to be constrained to do right one unto another , perform covenants and promises , and obey magistrates and laws in force , when the book and dictates of god himself , do accompt a man wicked , that borroweth and payeth not , and the wilful deceiving of men , in the not paying of money due unto them , or not performing of promises , is by good divines and expositors conceived to be a kind of theft , and reckoned to be within the meaning of the eight commandment , and to be numbred amongst the breaches and transgressions of it ; and it is no tyranny by the law of nature , for a man to stay or lay hold of one who is running away with his money or goods , or for a judge by the common law of england , to commit such as misbehave themselves by word or gesture , in their presence or a court of justice , or for a creditor by the civil law , to arrest or stay his debtor , if he be running away before he can get a warrant or proces from a judge . to punish souldiers with death by the law military , for running away from their colours , stragling in their march , or going above a mile from the army without licence ; to arrest or imprison such as resort to unlawful games , until they shall find sureties , no longer to use or haunt any place where such unlawful games are used ; or to imprison collectors for the poor , refusing to accompt : and sir edward coke in his commentaries upon that part of magna charta , saith that a watchmans arresting a night-walker , or one that hath dangerously wounded another , or that keepeth company with a notorious thief , whereby he comes to be suspected is lawful , and no breach of magna charta , although it be done without the warrant of a writ . by what rule of right reason then shall so gentle , and necessary a course or way of compelling men by proces of arrest , to appear in a court of justice , in order to a sentence or judgment , when he may be bailed , be styled a tyranny or oppression ? when it shall not be so called or esteemed , to take a man in execution for not obeying or performing a judgement , where he cannot be bailed ; or shall it be tyranny to arrest a defendant , to oblige him to appear in a cause or action civil , and none at all in a criminal ? an oppression or tyranny to arrest a defendant , to constrain him to appear in an action of debt , and none at all in an action of trespas ? nay , rather is it not an oppression , to endeavour to defraud and injure men , detain their estates and livelyhoods , withhold from the poor and needy their right , and undo the widdows and fatherless , by keeping away the money which should feed or keep them from starving , without making satisfaction ? or shall it be no tyranny to do the wrong , but a tyranny in a legal and ordinary manner , or way to seek to be reliev●d against it ? or how can it be justly accompted to be a tyranny , when no whereelse it hath been so esteemed ? but was so little believed to be a tyranny or oppression by other nations , or any thing less then right reason , as they have not only made use of the proces of arrest , and imprisonment of the body in actions of debt , and other the like personal actions in these later ages , but long before the incarnation of our blessed saviour . the athenians had their bailiffs , serjeants , and apparitors to bring defendants into their courts of justice , and the plaintiff might himself hale or draw the defendant by force into the court , if he would not willingly come ; but if he could put in two sufficient bail or sureties , he was dismissed . and howsoever there were at the first amongst them , and the men of sparta some harsh and cruel way of scourging and whipping of debtors , and other punishments and levetities used ; and their law-makers and magistrates were much troubled , to appease and reconcile the interests of the creditors , and necessities of the debtors , they could notwithstanding very well content themselves , and think their liberties to be sufficiently provided for , by this gentle and secure way of proces , to compel defendants judicio fisti , to appear in judgment . chap. xi . that the wisest of the grecian commonwealths athens and sparta , those great contenders for liberty and preserv●rs of it , did in their establishments and methods of justice , neither understand or suspect any tyranny , or oppression to be in the necessary & moderate use of the proces of arrest . for the usury being very great and excessive , the poor plowed the rich mens lands , and yielded the rich men a sixth part of their crop , for which cause they were called hectemory , and servants , borrowed money at interest upon gage of their bodies to serve it out ; and were by law , if they were not able to pay them , delivered to their creditors , who kept them as bond-men and slaves in their houses , or sent them into strange countries : many for poverty sold their childsen to their creditors , or were inforced to forsake their country ; parellel in many things or something near to that the children of israel had long before in custom , ( for from the phenicians , or their learned mens travails into egypt , they might have borrowed it ) in the borrowing and lending of money , and forcing men to perform their contracts . so as there arising at athens a great sedition amongst the people , to set the men indebted at liberty , redeem those who were adjudged to be bond , make a new division of lands amongst them , and to trun up the whole state and government . solon one of the wisest legislators that many ages before or after had met withal , a contemporary with jehojakim , king of juda or living very near the time of his reign , though unwilling to meddle , or endeavour the appeasing of it , because he feared the covetousness of the one part of the people , and the arrogancy of the other , was notwithstanding at the request of the wisest men of the city content to intermeddle in it ; and therefore after he had refused the kingdom , for fear of the name of tyrant , and was chosen governour , to be the reformer of the rigour of the laws , and to be the temperer of the state and common-wealth ▪ by consent and agreement of all partier ordained , that all manner of debts past should be cleared ; no man should ask his debtor any thing for the time past ; nor lend money to usury upon covenants , for the body to begaged for it , and raised the value of the money and the pound of silver , which was seventy-three drachmes , up to a hundred . which offended the rich , because they were enforced to cancel their bonds , and the poor because all lands and possessions they gaped for , were not made common ; yet notwithstanding shortly after having some tast of the benefits of his ordinance , they chose him general reformer of the law , and of the whole state of the common wealth , without limitting his power ; whereupon he having made many good laws , but finding some to praise them , oehers mislike them , and some coming daily to him to expound his meaning ▪ and considering therefore how it would get him envy or ill will , either to refuse or yield unto it , resolved to get himself out of the people , and to shun their groanings and complaints , betook himself to be a master of a ship , asking licence , to retire himself for ten years beyond the seas . but in his absence a great sedition arising , pisistratus a tyrant was made choice of by some of the people ; and the city notwithstanding they kept solon's laws and ordinances , desiring a change , either parties hoping their conditions would mend by it , and that every of them should be better then their adversaries . solon returning , speaks unto every one of the heads of the faction apart , and tryes if he could reconcile them together ; but though he was much honoured and reverenced by the people , seeing the poor tumult , and the rich fled , for that pisistratus coming into the market-place , and feigning himself to be wounded by his adversaries , for that he stood with them about the government of the common-wealth , had put the people into an uproar , and obtained a guard of fifty halbardeers , and a mace to be carried before him , and aspired to be king , went home to his house , took his weapons laid them before his gate in the midst of the street ; said , he had done all he could possible , to defend the laws and liberties of his country ; and from that time forward betook himself unto his ease , and never more after dealt in matters of state of the common-wealth . very long after that ( there being it seems no way or expedient in the mean time found out to take away that severity ) upon complaints made to lucullus , who was governour and captain general for the romans in those parts , that the fathers were driven to sell their sons & daughters to pay interest , and yet were in the end adjudged to be bondmen , and slaves to their cruel creditors , who imprisoned them set them on a rack , or in the stocks , or upon a little brasen horse , and made them stand naked in the heat of summer , or cold of winter ; he abated the monethly usury or interest to a hundreth part of the principal debt , and ordained that the usurer and creditor should enjoy the fourth part of the profits and revenues of the debtor , till he was satisfied ; and that they which took usury upon usury should forfeit the whole : which was reckoned , saith plutarch , to be as a great refreshing , and deliverance of the people , who all this while were not found to be complaining against the law of citing and compelling men to appear in judgment ; being a part of the laws of the ten tables , which solon is said to have compiled , but observed it as a law of publick use and necessity , giving no manner of disturbance at all unto it . chap. xii . the troubles and seditions of the people of rome , concerning the whippings , scourgings , selling for bond-slaves , and other cruelties used by creditors , in the suing and prosecution for their debts , and the troubles and endeavors of the magistrats and senators to appease them . and was so little believed by the romans to be a tyranny , as when some seditions and commotions had been amongst them , occasioned by the greatness of usury , cruelty of creditors , whipping , scourging , slavery , and villanous usage of imprisoned debtors they did acquiesce , and submit to the use of the proces of arrest , to enforce men to appear in courts of jnstice . and when at rome two hundred fifty-nine years after the building of that city , being about four hundred ninety-two years before the coming of christ , an old captain or commander coming into the town-house or market-place , with the arms or ensigns of his ancestors , ragged cloaths , a pale famished and meager countenance , his beard and hair overgrown and baring his breast , shews the wounds received in the wars , tells the people he had lost all his goods and estate , taxes had impoverished and brought him into debt , and he had been carried of his creditors not only into bondage , but into prison and a place of torment , and shewed his back wounded and gored with stripes . whereupon a great tumult and sedition arising amongst the people , the senat were afraid to sit , and upon the news of an invasion of the volscians , were by the people bid to fight for themselves : but upon promise , that no creditor should take away their goods , or sell them , or arrest or take away their children , as long as they were in the camp , they were listed and pacified ; but that war ended , and another shortly after with as good succes , they that were bound before , were delivered over to their creditors for debt , as also others that were not bound or imprisoned before . shortly after the people seeing a debtor sued , and brought to the bar , flock together , and make such a clamor as the consuls sentence could not be heard , and single out the creditors and misuse them , so as the fear of the loss of liberty was translated from the debtors to the creditors , and the people being discontented refuse again to muster ; whereupon the consuls , by advice of the senat , seek to force them ; but one of them being summoned by the consul to appear , stood still and refused , the consul sends to attach him , the people rescue him ; the senators cry shame of the indignity , and run down from their seats to assist the serjeant : yet for all this stir , saith livy the prince of historians , it was not thought convenient to take away all keeping of credit with the creditors . but valerius being chosen dictator , upon a promise much like that they had before , procured them to muster : those wars ended , the dictator moved the business again in the senat , concerning those that were bound in prison for debt ; but they refusing to order any thing in it , gives up his dictatorship , and the people thinking he did it for their sakes , follow him home with praises : the sedition increaseth again , and was laid aside ; after that they mutiny again , and withdraw out of the city into the mount aventine , and begin to fortifie ; but upon menenius agrippas oration , and comparison of the mutiny of the several parts of the body against the belly , they come to an agreement , and amongst other conditions it was granted , that they should create two tribuns of the people , to assist them against the consuls , and that their authority , by an oath to be taken amongst them , should be sacred aud inviolable . about fifty years after , the tribuns of the people were at discord with the consuls , for that the commons were not suffered to make laws , and though both sides agreed it , to be a matter most equal for their liberties , that laws should be made by the commons and senators , yet they differed about the legislative power : whereupon embassadors were sent to athens and sparta ( when they had agreed of some laws , but could not accord who should be the law-makers ) to learn and get copies of the excellent laws of solon , and the laws and customs of other cities of greece ; after whose return , and much rejoycing for the bringing of the copie of solon's laws , the twelve tables by them , and others well skilled in those forreign laws , were framed four hundred & forty years before the coming of christ , by ten men or magistrates , created by the people as a committee to peruse those laws , amongst which was that law brought from athens . qui petebat debitorem conveniebat atque ut se in jus sequeretur admonebat , st is sequi noluisset eum in jus ducebat , sive rapiebat verum no in juriam facere , videretur ante aliquem ejus actionis testem faciebat capta , scilice● hominis forte intervenientis aut pre●entis auricula nogahat eum licetn● antestari , id est , possum ne testem sumere si responde●at licet , tum adversanium frustrantem , aut fagientent injecta m●n● ad praetorem trahebat atque hoc faciebat auctoritate xii . tabvlarvm , sic 〈◊〉 i●iis erat si in ivs vocat qveat nit antestamino igitvr em capito si calvitvr pedemve strvit manvm endo jacito : if a man had summoned or demanded of another to do him right , and to appear in the court ; if he refused to follow him , nulla interposita mora , immediately or without delay , he might , least he should seem to do him wrong , take witness of the next man he met , manum injicere & per vim in jus rapere , lay hands upon him and inforce him ; which the laws or authority of the ten tables did warrant . but if he was sick or aged , and not able to go , then he which summoned him was to provide him an horse or wagon ; those laws directing , that si morbvs aevitasqve vitivm escit qvi in jvs vocabit jvmentvm dato si nolet arceram ne sternito ; that if he was sick , or so aged as he could not go , he was to have a horse provided for him to ride upon ; and if he should refuse that way to go , he was to be put up in a close waggon , and carried whether he would or no. which the romans those grand assertors of liberty , and the most suspiciously impatient of any thing , which might disavantage or prejudice that high esteem which they had of it ; neither did find any fault with , or had any reason so to do , when as those laws of the ten tables ( of which that above mentioned de in●jus vocatione , or de necessitate in jus eundi , of constraining men that refuse to appear in judgment was one ) were freely chosen and allowed of by the people of rome before they were enacted , and with the greatest freedom of choice that any laws could possibly be . for , saith livy , ingenti hominum expectatione populo ad concionem advocato , & quod bonum faustum felixque reipublicae ipsis liberisque eorum esset ire , & leges legere propositas jussere se quantum decem hominum ingeniis providere potuerit , omnibus summis infimisque aequasse : in a huge expectation of the multitude , the people being called together or assembled , they were with wishes and prayers that it might be good and happy for the common-wealth , and for them and their children , required to go together and read the laws which were proposed unto them , which they ( meaning the decem viri , or then magistrates , of which number were the three which had been sent to athens and greece to learn their laws ) had so far as ten men with all their wisdom could foresee and provide , indifferently devised for all men : sed quia plus pollere multorum ingenia consiliaque in animis versarent secum unamquamque rem agitarent deinde sermonibus at que in medium , quid in quaque re plus minusve esset conferrent eas leges habiturum populum romanum quas consensus omnium invasisse , nec jussisse latas magis quam tulisse videri posset . but for as much as the wits and heads of many men might see further , and better advise , they gave them leave to consider and ponder every particular , and to reason together from point to point , and deliver their opinions openly , what was short , wanting , or superfluous in every article ; and what laws an universal consent of the people should bring in , those should be enacted and none other , that it might appear they were not so much to approve of them , & give their assent after they were propounded , as to propose & prefer them their own selves : cumque ad rumores hominum de unoquoque legum capite edito satis correctae , viderentur centuriatis comitiis decem tabularum leges perlatae sunt , qui nunc quoque in hoc immenso aliarum super alias acervatarum legum cumulo fons omnis publici privatique est juris . and when as they were thought to be sufficiently corrected , as every one spake to the titles and chapters thereof , in an assembly of all the centuries and degrees of men , the laws of the ten tables were enacted and established ; which even at this day , saith livy , amongst that infinite number of laws heaped one upon another , are the very well-spring and fountain of all justice , both publick and private . but the next year after , the people finding the decem viri growing insolent , to determine matters at home before they gave sentence openly , and usurping kingly government , begun to repent themselves , of putting the power of appeal out of themselves , tumult and protested against the decem viri , or ten which they had chosen ; saying , they had created them magistrates , only for the publishing and enacting of certain laws , but they had now no justice in the city : and appius one of the ten , having ingrossed into his hands the power and disposing of his partners , helps on the tumult by a business that happened , upon his lusting after a young maid , the daughter of l. virginius , a commander of good note in the army , and setting mr. claudius to claim her as his bond-woman , who laying hands on her in the market-place , cited her to appear , and commanded her to follow him , otherwise he would force her ; the people flock together , but the plaintiff tells them , they need not trouble themselves , for he proceeded according to law , and would do nothing by force , cites her again to appear before appius , and the people perswade her to follow , where the cause by reason of the expostulation of icilius to whom she was betrothed , not coming to hearing ; that day she was bailed and suffered to go under sureties till the next ; but the second day , appius without hearing the defendant or her friends , decreed that she should be a bond-woman to claudius , who going to seise her finds the people resisting him , appius sends a serjeant to assist him , virginius in a rage killeth his daughter , that she might not come into the oppressors hands , and a great uproar happening by the people , kindred , and friends of the maid , appius cites icilius , the spouse of the maid , as an author of the tumult , and for his contumacy in not coming , caused him to be attached and carried to prison ; but valerius and m. horatius , two popular and powerful senators , thrusting back the serjeant , said , if appius had any thing to charge him with by order of law ; they would bail him ; but if he went about to offer violence he should meet with his match : after that appius himself is arrested , who desiring to be bailed , and not to be put in prison or lye in chains , by all the friends and pittyful speeches he could make , could not obtain it ; for that he had , saith the father of virginia , so much against all order of law denyed the bailing of her , who therefore commanded him to be carried to prison , as a person attaint and convict : the tribun of the commons set him a day to plead for himself and make his answer , but appius before that day killed himself , his goods were confiscated by the tribuns ; the rest of the decem viri fled and were banished , and all their goods confiscated : and the ten tables having two more added to them , by the appointment of the tribuns , are set or hung up openly to be seen , engraven in brass . the romans having long before the compiling of the twelve tables , used to arrest and compel men to appear in judgment , as is manifest by their manner of giving bail , before such time as appius denyed to take bail , in the case of the daugh-of virginius ; which was ex veteri jure , an old law and custom amongst them , saith pomponius . and this grand commotion of the people having nothing at all in it the while of complaint or action , against the laws of citing and compelling men to appear in judgment , and a putting them to bail in the interim , but a confirmation or allowance rather of them . threescore and five years after that marcus manlius capitolinus , so named because he had saved the city of rome , and the capitol from ruine and spoil , growing ambitiously discontented , & not contenting himself to deal in the laws agraria about the division of lands , which had alwayes ministred occasions of seditions , began to intermeddle between the debtors and creditors ; and to overthrow , saith livy , all keeping of credit . and seeing a centurion condemned in an action of debt , and carrying to prison upon an execution , with a rout and crew of his followers , rescues and takes him from the officers , and crying out that his merits in saving the capitol had been to little purpose , if he could abide to see his fellow-souldier carried away captive , did in sight of the people pay down the debt , set to sale his own land , and caused it to be openly cried , that as long as he had one foot of ground , or any thing else rest , he would not see one of the people condemned , & upon execution carried to prison , and stirred up such a sedition in the city as the people followed him as the protector of their liberties ; whereupon the dictator being sent for from the army , assembled the senate , caused the ivory chair of state to be set in the common-hall , and sent a serjeant for manlius , who with a great retinue of his party presents himself before the tribunal ; and tells the dictator , that now he saw he was created dictator not against the common enemies , but himself and the commons of rome , for he did see well that he professed to maintain and bear out the usurers against the commons : whereupon , after many insolent speeches , the dictator commanded him to be carried away to prison ; manlius cryes out , o ye gods and goddesses that inhabit the capitol , suffer ye thus your knight and defender to be misused by his adversaries ? but , saith livy , though every man that saw it was greatly moved , the city as most patient of all other cities , to abide any just and lawful commandment of the magistrat , so contained her self , as neither the tribuns of the commons , nor the commons themselves durst intermeddle in it , though many of them did put themselves in mourning , let their heads and beards grow in their grief and mourning for it , and with sad and heavy chear kept commonly about the goal-door ; but after a while threatned to break the prison , continued or rather increased their sedition , and never left till the senate released him : whereby the mutiny was never the more ended , but rather a captain given them to maintain it , the people hope to be rid of usury , manlius calls them home to his house , exhorts them to maintain their liberty , and to hinder and cry down dictatorship and consulship , and proces and course of law for actions of debt ; the senat and tribuns in consuls authority , and the tribuns of the commons also , seeing that in the loss of the publick liberty their own power likewise would come to an end , being much troubled at it , by advice of the senat resolve to arrest him , and thereupon send and serve proces upon him , to answer at a day appointed ; which being come , he produceth four hundred men , for whom he had laid out money gratis , saved their goods from port-sale , and kept them from the bondage of their creditors after they were condemned ; reckoned and shewed openly the spoils of enemies by him slain or disarmed , to the number of thirty , gifts bestowed on him by generals to the number of forty , whereof there were two mural garlands for scaling of walls , and civick coronets , for saving the lives of citizens in danger , presented many in person whom he had rescued out of the enemies hands , nominated servilius , at that instant general of the hosse-men , stript his breast bare shewed the scars received in the wars , looked towards the capirol , and praid to the gods , to give the people the same mind to help him as he had to help them ; but the people notwithstanding being called out by the tribuns , and drawn out by centuries or wards , into a place where they might not behold the capitol , for otherwise it was thought impossible for them to get leave of their love and pity to him to find the indictment against him : and the accusation prevailing more then compassion , he was condemned for sedition , holding conventicles with the multitude , and his over much largess , to be thrown down the rock tarpeja , where himself had won so great glory by defending the capitol ; his own kindred making also a decree , that none of that race should after bear the name of marcus manlius . the tribunes after that complain , that the senate sought to avoid the exhibiting of publick records and books , which gave testimony of the valuation of every mans substance to the worth , because they would not have the sums of debts to be seen or shewn , which might shew that the one part of the people were eaten up and devoured by the other , and that if the commons would call to remembrance their ancestors liberty , they would not suffer any citizen of rome to be awarded to bondage for debt , nor any musters to be taken until a view were made , and just accompt had of every mans debts , that each man might know what he had of other mens goods , what remanied of his own , whether his body were left free , or at the mercy of his creditor to lye in cold iron or baleful prison ; on the other side the censors alledged , that the debtors cautelously would not then keep their credit and make payment : which hire and salary or reward of sedition , saith livy , shortly after stirred up a mutiny , for that when many were adjudged to be kept bound by their creditors , the tribunes would not suffer those that were condemned to be led to prison , nor the younger sort of the commons enter their names in the muster-masters book : howsoever the wars coming on they leave their mutinies ; but after the wars ended , tribunes military with consular authority were equally chosen , from out of the nobility and commons ; and the year following begins with discords , seditions , and broils ( for no better were they then termed ) concerning debts , for the true inquisition whereof , and to know to what sums they amounted , sp. servilius , priscus , and q. claelius siculus were made censors , but stopped by occasion of an invasion of the volscians , notwithstanding the fear and terror whereof ; so little were the civil discords appeased , as the tribunes of the commons extended their power with more violence , to hinder the leavy of souldiers until they had indented and capitulated with the senate , that so long as the wars lasted , no man should contribute or be charged with any impost , or be sued in any action of debt , whereupon the commons are content to muster , two new legions were levied and enrolled , and to war they go with the volscians their neighbours ; but as soon as all was quiet from enemies abroad , they began a fresh to be sued and troubled by their creditors at home , and having small hope to be released of their old usury , fell into a new sedition , by reason of a contribution imposed by the censors for making of a well , which they had set out to be made of square ashler stone ; but being forced to yield thereunto , and to go to war against the volscians and latines , after several victories obtained , and the armies returned to rome , the calamities of the commons grew every day more and more , for they wanted means and were not able to pay for the interest , that needs must be paid ; and when nothing was to be had to make satisfaction , out of their goods were adjudged and awarded to satisfie their creditors in their bodies . which gave occasion to m. fabius ambustus , a man of much repute with the commons , upon the proud discontent of a younger daughter , not being married so well as her elder sister , whose husband was a tribune military , plots with his unpreferred son in law and l. sextius , who hoping to compass some alteration in the state , by reason of the excessive debts that men were grown into , got themselves made tribunes of the commons ; upon which advantage c. licinius , the son in law of m. fabius ambustus , and l. sextius propose laws touching debts , that when so much was defalked and deducted out of the principal , as had been paid for the use and interest , the residue should be paid by even portions in three years ; that no man should hold in possession above five hundred acers of land , and that there should be no election of tribunes military but of consular ; with which the senate being much troubled , could find no other remedy but the negative voice of some of the tribuns to step between , and had wrought some of their own brotherhood to do it , who as soon as they saw the wards or tribes , called forth by licinius and sextius to give their suffrages , would not suffer those bills to be read or pass by the commons ; whereupon when the nobles began to choose the tribuns military , l. licinius and sextius crossed them , so as there was no election at all , but of aediles and tribunes of the commons , for licinius and sextius being chosen tribunes again , suffered no magistrates of the chair , or of state to be created ; after that other wars ensue , and with much ado an army is levied , sextius and licinius the publishers of those laws were the eighth time made tribunes of the commons , and fabius also a tribune military , five in eight of the tribunes of the commons ernestly , and like men bestraught of their wits , urge for to have those laws enacted ; sextius and licinius with part of their tribune brethren , and m. fabius the military tribune being , saith livy , their craftes maisters , and knowing well enough by so many years experience , how to manage the minds of the commons , demand of them how every one of the senate , and other rich men , could in equity hold the land well near of three hundred citizens , and a commoner have hardly ground enough to build him a house upon , and to serve for a place to bury his dead , whether the commoners oppressed with usury should yield their bodies to bear irons and suffer torments , unless they pay the interest before the principal ? and that daily they should in whole companies be had away from the bar , and condemned to thraldom , and alledge that the commons could never be relieved , until they make one out of their body a consul , who might be equal in the soveraign command and power of the sword , and maintain and protect their liberty . the next year the legions being returned home , the same tribunes of the commons are chosen , and the same laws again proposed ; the senate when they saw the tribes called , and none of the tribunes step forth to stop their proceedings , began to be exceedingly afraid , and choose a dictator ; the tribunes of the commons call a common hall , & summon out the wards to give their voices ; whereupon after the laws were propounded , and some of the tribunes denyed them camillus the dictator , their good old successful general , formerly the saviour of their common-wealth against the gaules , a man of undoubted honour and integrity , and the darling of the peoples , sided with the gain-saying tribuns , and stickling to maintain their intercession and gain-saying authority , sent his lictors and serjeants to command the commons to depart , threatning withal that if they proceeded thus like conquerors to give laws , he would take a military oath of all the younger sort , and presently lead an army forth of the city , which put them and their captains and ringleaders in so great a heat of contention , as the dictator terrified with some unlucky signs of the birds , gave up his office ; mean while in an assembly of the commons summoned by the tribunes , the laws were passed concerning lands and usury ; howbeit shortly after it was found that licinius had a great many more number of acres of land than his own laws permitted . after this another dictator was chosen , who nominated licinius general of the horse-men , who with sextius at the next election day for the tribunes of the commons so demeaned themselves , as seeming to be weary of the place , they were the more eagerly desired by the commons , and alledged thereupon , that the commons themselves were they that hindred their own good , who might presently , if they would , have their city , their common-hall , and places of assemblies freed from those creditors , and their lands recovered again from the unjust landlords ; that it stood not with the modesty of the people of rome , to require to be eased themselves of usury , & set in possession again of the lands with-held from them , and to leave those old tribunes , by whose means they had gained those commodities to shift for themselves without honour or hopes thereof ; and that if the commons should not resolve to speak affirmatively to those laws , it would be to no purpose to choose any tribunes , neither would they accept of the tribuneship , neither should the commons have those laws ratified , which were already granted : but upon an oration or speech of appius claudius a senator , setting forth the inconveniences of what was propounded , and that by what had been already wrested by the tribunes , all credit in borrowing and lending , and taking and putting forth of money would be abolished , to the destruction of all humane society , commerce and enter-course whatsoever . the matter was adjourned , and the publication of those acts cut off and deferred ; but the same tribunes sextius and licinius being chosen again the tenth time , got a law enacted , that of the decem viri for church & ecclesiastical matters some should be elected of the commons , with which they were so well content , as they laid aside the business of tribunes consular , and gave way for the creating of tribunes military ; and the venerable camillus being almost fourscore years old , is the fifth time chosen dictator , but after the wars ended with the gaules , who had invaded them , is welcomed home with a hotter sedition in the city ; where after many sharp bickerings and contentions , the senate and dictator were forced to accept of the tribunes laws , and sextius was created consul out of the commoners ; but by reason that the nobles refused to give their consent , that camillus should leave his place of dictator , the tribunes of the commons , as camillus was set in his chair in the town-hall hearing of causes , sent a serjeant to him , who commanded him to follow him , and laid violent hands upon him , to carry him away by force ; which made an uproar , saith livy , was never before seen in the common-hall or town-house , camillus friends driving the serjeant behind the chair ; and the people crying out from beneath to the serjeant , to pull him out : notwithstanding all which he would not resign up his office , but taking with him those senators which were about him , went towards the place where the senate was wont to be kept , but before he could go in , he returned back again to the capitol , and made his prayer to the gods , that it would please them to bring his troubles again to a quiet , and made a solemn vow and promise , if those troubles might be pacified , to build a temple to concord . and the matter coming after to be debated before the senate , there hapned such an hot contention and diversity of opinions , as the easier way carried it , which was to grant the common peoples desire , that a commoner should be chosen consul with a noble man , and it was agreed , that the common people should be content that the nobles might out of the patricii create a praetor , or lord chief justice for oyer and terminer in causes within the city , which being by the dictator published to the people , they were so joyful as they brought camillus home to his house , with great shouts of joy and clapping of hands ; and being the next morning assembled in the town-house or market-place , decreed , that the temple of concord should be built at the common-wealth's charge , that some festival dayes should be solemnized , and sacrifices made unto the gods in every temple of the city , to give them thanks , and that the people should in token of joy wear garlands upon their heads for this reconciliation . about nine years after upon a new sedition of choosing of magistrates , and for want of them an interregnum happening , the commons lost their consulship again , and two of the patricii began to govern , who thinking to continue it as formerly in the nobility , had the trouble of another sedition , wherein the people after many stirs and meetings not prevailing , two other confuls of the nobility were elected . and though the usury or rate of interest was much abated , yet the poorer sort of the people being over-charged with the payment of the principal , became bound and thrall to their creditors , in so much as the commons , in regard of their private streights which they were driven unto , never troubled their heads at all any more with the making of consuls . in the end of the next year after , the contention betwixt the senate and the common people brake forth , concerning the election of the consuls ; whereupon the tribunes of the people stifly denyed to suffer any assembly to be holden , unless they might have one of the consuls to be chosen out of the commons , according to the law licinian : and the dictator as stoutly bent to denye it , the election was adjourned , and the dictator leaving his office , the matter grew again to an interregnum , and the interregents finding the commons to be alwayes maliciously set against the senators , succeeded one after another until the eleventh interregnum , when the discord and variance still continuing , the tribunes called on hard for the law licinia ; the commons had an inward grief that struck nearer to them , upon the excessive usury that still increased , and each mans private care and grievance brake out in their publick contentions and debates ; the senate thereupon weary of such troubles , commanded l. scipio the interregent for the time , being for concord and unity sake , to observe the law licinia , in the election of the confuls , so as p. valerius publicola had joyned with him in fellowship of government , cajus martius rutilius one of the commons . who labouring to ease the matter of usury , being that which hindred the general agreement , set a course to do it , so as the long or old debts , which were more intangled rather in regard of the debtors slackness and negligence then want of ability , the city out of the common stock crossed them out of the book , by setting up certain counters or tables , with ready coin in the publick hall , provided that good security were given to the city , by sureties put in beforehand , or else the goods of men valued at indifferent and reasonable prices were to discharge the debts , so as a great number of debts , without the complaint of either party , was satisfied and paid . two years after the ancient possession , saith livy , of the consulship was restored to the senators ; and about two years after that , the usury coming but to half so much as it was formerly , the payment of debts were dispenced , and ordered to be paid in three years by even portions , so as a fourth part were paid beforehand , some of the commons being for all that pinched therewith , for that the senate had more care to see credit kept with the chamber of the city , then of the difficulties of private persons , which was the better born in regard of the forbearance to muster souldiers , and call for tribute . about seven years after that , upon a mutiny of the souldiers , in the camp a law was published by a tribune of the commons , that usury should be made altogether unlawful ; and after many nnreasonable demands , saith livy , the insurrection of the souldiers , who compelled their commanders to march against the city , was upon a capitulation made as once before ( saith that learned historian ) the commons , and a second time the army had done with the senate , that their mutiny and insurrection should not be made use of to their danger or dishonour , it was appeased . about sixteen years after , being three hundred and thirteen years before the incarnation or coming of christ , papirius publius being bound for his fathers debt , & having consigned himself a prisoner to the creditor , who supposing that he might abuse the young mans body for interest of his money , began to tempt him with fair words and promises , afterwards to threaten him , and when that would not serve , commanded him to be stript naked and whipt ; whereupon the young man all wounded and torn ran forth into the street , and complained to all he met , of the filthy lust and cruelty of the creditor ; and thereupon a great company of people moved with the injury of the usurer , and pity of the young man , as also in regard of their own case and their children , gathered themselves into the market-place or town-hall , and from thence towards the senate-house ; and the consuls being upon this suddain uproar coacti , saith livy , compelled , to assemble the senate ; the people as the senators entred in the senate-house lay prostrate at their feet , as they passed by shewed the young mans back and sides ; whereupon the consuls were commanded to propose to the people , that from hence forward no person whatsoever , unless guilty of matters criminal or trespas ( for noxa , the word used there by livy , and noxales actiones are by the roman and civil laws , and our bracton also interpreted , to be matters and actions of trespas as well as greater crimes ) until he were condemned to punishment , should be bound in fetters or chains , and that the goods of the debtors , not the body , should be obnoxious to the payment of the money borrowed ( which might better be ordained there than with us , or many other nations , for that the romans by their censors did keep publick registers of every mans lands , estate , and lands ; so they that were in bondage became released and enlarged ; and order war taken for the time to come , ne necterentur , saith livy , that the debtors should not hereafter be bound or chained in prison : which if any shall misinterpret to be an absolute freedom of the persons of the debtors from arrest , the roman records and histories will be agains● them . chap. xiii . that this order made to pacifie a tumult was not perpetual , or so much as intended to extend to an absolute freedom of the debtors from arrest or restrainte of their persons , till they appeared in courts of justice or gave bail to do it . for a plebiscite or law of the people , it could not be for they were not called together by tribes or wards , under the authority of the tribunes ; or if they had so many usurers , and all that were either rich men or creditors , were likely to have been against it ; and an act of the senate it could not be , for they were forced or affrighted to it , and it wanted the consent of all the peoples deliberation , and the just solemnities of it : for ab exactis regibus , from the time of putting down monarchy , till the reign of tiberius caesar , saith bodin , the senate alone had no power to make laws , but only annual decrees or ordinances : which bound not the common people ( ordinances or decrees of the senate ( saith dionisius halicarnasseus , a most diligent inquirer into the roman customes , having nullam vim legis nisi populus probaret , no force or effect of law unless the people approved of it ; et ea quae populus probaverat annua tantum erant , nisi rogatione ad populum , vel ad plebem vim legis adipiscerentur , and those also which the people did approve were but annual , if by rogation or asking the people's consent , being called together by their wards , it obtained the force of a law , and without a rogation or demanding the suffrage of the people was , as bodin saith , ineffectual so as a law , it was not because all the people were not duly called nor had agreed to it , and being no law , could be no more then an edict of the consuls , or an ordinance of the senate ; or if a law ( because we fiud it by paulus manutius reckoned for no less ) was but temporary , and to pacifie and bring to their wits again the inraged multitude . but whatsoever it was , it extended not nor was so much as intended to take away that necessary power of the praetor or magistrat , of coercing or compelling men to appear before them in judgment , but was abrogated or continued but for that time or a little after , or not put in execution , a fate which many other enforced acts or orders of that common-wealth came under ; as that of the law licinia , or choosing of one of the consuls out of the commons ; that of lessening of usury at one time , or taking it quite away at another , which had their intermissions ; the latter of which was so impossible to be kept , as by custom and mens necessities it came to be to no purpose , which the many seditions of the people , which happened afterwards concerning usury , and the more ease then abatement of it , may be enough to perswade us unto : for besides what may be observed concerning the enforcing of that law , and the course taken to pacifie the people , the meaning of bona debitoris pecuniae oreditae non corpus obnoxium esset , that the goods of the debtor not his body should be obnoxidus or liable to the debts , might probably be understood to be , that the goods of the debtor should be sold or taken in execution , for the satisfaction of the creditor , as far as they would go , and that his body howsoever should not be bound or lye in chains for it , and that those that were bound in fetters or chains were released from that kind of imprisonment , as may appear by the body of that law , or the perclose and conclusion of it ; which only saith ita nexi soluti , so those that were bound in fetters or chains were released , which must be understood to be by the sale of their goods ; and for the time to come , singly relating to the matter of binding in chains or fetters , not as to the sale or taking of goods hath only these words , cantumque in posterum ne necterentur ; and for the future it was enacted , that for money borrowed the debtors should not be bound in chains , which needed not have been if their goods , and not their persons had only been liable to debts ; the way of distringas or attaching men by their goods ( where they were not fugitives , or had a certain or visible estate , being not then unusual , as may appear by what was done in the case of the senators , who had their goods taken and distrained , for not coming upon summons unto the senate-house . which law or whatsoever it is to be called , got so little allowance in the opinion of livy , that most learned and ever approved historian , as he gives it no better opinion in the reporting of it , but that upon occasion of an injury done to one man , a mighty bond or tye upon the people to keep their credit was that day broken : and it will howsoever be evident enough to any who shall but acknowledge that truth , which will every where meet him in his enquiry , through the roman history or customes , that they did not by that edict or law abridge or take away the power of the praetor or judge , who though he was at first appointed and set up at the request of the tribunes and people , had two lictors with axes and bundels of rods ( a more terrible kind of officer then our serjeants or mace-bearers ) allowed to attend him in the necessary course of preserving that power was put into his hands , to judge and determine of causes : for we may find sempronius a tribune of the people , about sixteen years after the pretended law of prohibitting men to be bound in fetters for money lent , to command appius the censor to be attached or committed to prison for no criminal or hainous fact : that in the accusation and pleadiug of scipio africanus , about one hundred & twenty-two years after , concerning an accompt of the publick treasures , the court was attended by lictors or serjeants , and a common cryer ; and that the tribunes of the people themselves , in the absence of scipio africanus , when he sent his brothers to appear for him , but failed to appear in person , upon a longer day granted for the process of the law against him , to cry out , saying , dare we not now send folk to fetch him , being but a private person , out of his farm and house in the country , and make him appear ? unto whom not seventeen years ago , at which time he was general of an army at land and admiral at sea , we were so bold as to send tribunes of the commons , and an aedile to arrest and bring him away ; that l. scipio his brother being after his death accused and condemned , for not bringing to accompt some treasures taken in the wars , when some of scipio's friends had appealed to the tribunes of the people for their help , and remonstrated the many merits and services of him and his family ; the praetor or lord chief justice opposed , and said . that for his part he could not do with all , but if the sum wherein he was condemned was not brought into the common treasury . he knew no other remedy nor what else to do , but command him as a condemned person to be apprehended again , and had away to prison . and when the tribunes of the people , all but titus gracchus , pronounced alone that they would not interpose , and that the praetor might execute his office and authority , all the favour which gracchus one of the tribunes thought fit to do him , was to decree , that as touching the sum wherein l. scipio was condemned , he would not be against it nor hinder the praetor , but that he might use his power according to his place , and take it out of his goods as far as they would stretch ; but would never consent , that he who had subdued the mightiest monarch of the world , and extended the bounds of the roman empire as far as the utmost ends of the earth should lye in prison and irons . besides how little that pretended law , gained by a tumult , prevailed against the imprisonment of men in chains or irons , after judgment in debt or other civil actions , or a bare imprisonment without them , plainly enough appears , in the customes and usages of those times , held forth in the oration made by publius scipio na●ica , another of those famous brothers , made to the tribuns of the people in the behalf of l. scipio his brother , to keep him from going to prison , clearing up unto us the usage of those times , notwithstanding that pretended law ; for there we may find him saying , that which cannot be made of the substance and goods of l. scipio , they will make good on his body . so that it will be abundantly evident , that all the before recited tosses , commotions and troubles of that grand common-wealth of rome , and that people's humors and ignorance in that popular government , which made them to be restless as the waves of the sea , tormenting and inquieting themselves and their magistracy ; which continued until that republique had , as tacitus saith , tired it self civilibus discordiis , and gained a rest from those publick disturbances in the government and monarchy of augustus caesar , were more in regard of an horrid usury & their debts , and being constrained at the same time to pay tributes , muster , and fight for their countrey then of their being imprisoned , and more for the chains and cruel manner of usage , then for the imprisonment it self , or restraint of their liberty upon actions of debt , which without a renouncing of justice , and all the hopes and benefits thereof could not be forsaken ; and were therefore without the former severities of bondage , chains and fetters , to be reckoned amongst the most necessary & excellent rules of justice , void of all tyranny . and was so liked and approved by that conquering and great nation , as hermodurus an ephesian , who had been assistant to the decem viri , in the interpretation of solon's laws , had his statue erected in the forum or place of justice ; and were so continued & commended to after ages , as in tully's time , which was almost four hundred years after the publick and universal consent of the people and their magistrates gained , and likewise after the pacification of the people's complaints of their burdens of usury , & the merciless usage of the creditors , those laws were had in so great a reputation & veneration , as that part of them de in jus vocando , constraining men to appear in courts of justice , was , as he saith , a parvis learnt and sung by him and other children ; and after that he came to be that great orator and lawyer , whose just praises and commendation the many ages since , and a long course of time have taken a delight to remember , could have no other opinion of those laws , then that if all the learning and libraries of the world were searched , those of the twelve tables , si quis legum fontes & capita viderit , & auctoritatis pondere & utilitatis ubertate superarent , if any would enquire into their reason and original , their authority and benefit considered , they would appear to be the best of all laws . and were so generally by after ages well liked , as ammianus marcellinus long after speaking of them saith , that solon adjutus aegypti sacerdotum satis justo modetamine legibus romano quoque juri maximum addidit firmamentum , by the just and equal laws , which he had made by the assistance of the egyptian priests , was a great means of the establishing of the roman laws . and if they could have been truly charged with any tyranny or oppression , or so much as a suspition of either of them , that law de in jus vocando , being a part of the twelve tables , could not as well as the rest have gained as it did , the constant approbation and good liking of the world , and come as it hath done from generation to generation unto these our present times . and it is a thing not unworthy of observation , and pertinent enough to be here remembred , that the romans abhorring the cruelty of the diaco or athenian laws , ordaining the debtor after a sentence or judgment given against him , and a certain number of dayes limited , and a failer of payment to be cut in pieces and distributed to the creditors ( which cruel law , saith quintilian , mos publicus repudi●vit , the kindness of mankind one unto another could not endure to be put in execution ) did in lieu thereof , appoint a seisure or execution against the goods of the debtors , and that in the course and process of arrest : it was by a constitution of the praetor or lord chief justice ordained ( which unless in cases of writs of outlary , and where the dores are not open is to this day observed in our laws ) ne quis ex domo sua in jus vocari vel pertrahi posset ; that no man should be arrested or forcibly taken out of his house . and the civil or caesarean law , when according to the custom of some countries , in towns or places of trade , as in holland and the vnited provinces , arrests in actions of debt were at the first not much accustomed , where the debtor hath a domicilium or fixed habitation , doth not withstanding in the notion or interpretation of a suspectus de fuga , warranting a present incarc●rstion or arrest of a debtor , if he be not a free-holder or man of a very visible estate , appear to be so willing at this day to gratifie and secure the fears and jealousies of creditors , & avoid those circulations , inconveniences & delayes , which would otherwise happen if they should tarry , as they do sometimes under that law , to receive the debate before a judge , whether the debtor was a free-holder , likely to run away , deserving to be arrested , or to have his body to be secured , as it hath allowed no less then . exceptions , against a debtors not being to be exempted from it , viz. first , that he hath no free-hold or ability to pay the debt . . is a forreigner , incerti laris , or a vagabond . . hath made his estate to be notoriously worse then it was formerly . . accepit pecunias sub gravibus vsuris , gave too great interest or brocage to borrow money . . keeps ill company . . hath met with some great misfortune since his debt contracted . . is a great liar and deceiver , and suspected to be a bankrupt . . doth wast his estate , and intendeth to defraud his creditors . . is a gamester . . hath all the signs of a suspitious person . . makes use of many men to be bound or ingaged for him . . engageth himself in many business . . is looking out or providing for another habitation . . is turned informer . . keeps his shop shut up . . is a man of ill life or conversation . . or hath been so formerly . . hath been an offender in criminal matters . . lodgeth his goods in some secret place . . and is packing up to be gone . but they that can dream of tyranny and oppression in our proces of arrest and outlawry , and know not how to prove it , will rather then miscarry in their design of metamorphosing our laws , and putting them into as many new fashions as the variety 〈◊〉 vanity of their cloths and habits , w●ll , if those accusations must vanish and never be able to make them any good return , seek out some other way to alter or abrogate those kind of law proceedings , and therefore to pretend that the statute of e. . ca. 〈◊〉 ▪ giving proces of capias and outlawry in actions of debt , is either by the act of parliament of e. . ca. . or e. . ca. . repealed . chap. xiv . that the statute of e. ca. . which giveth proces of capias and bxigen● in actions of debt , and other actions therein mentioned , is not repealed , either by the acts of parliaments of e. . ca. . or e. . ca. . there being no ind●●venim●● or prejudice to the publick good in those kind of law proceedings , which might deserve a repeal by those or any other acts of parliament . when it cannot come within the virge of any probability , that the said statute of e. . ca. . should in the same parliament ( those grand assemblies being then & long before usually shout , and of no long continuance ) be made when the statute of . e. . ca. . was made ▪ that none should be taken by petition or suggestion to the king or his councel , but by 〈◊〉 indictment , presentment , or proces made by writ original . if it had not been believed to have been consistent with it , or the meaning of our magna charta ca. . or if the statute of e. . ca. . had been repealed by the shortly after following statutes of e. . or ● e. . ca. . such a repeal should not be taken notice of , by those that lived in those times or near unto them ; or that if there had been any grievance found or perceived in that statute of e. . ca. . or that the said statute of e. . had repealed it , the statute made by the aforesaid king e. . in the . year of his reign , would have ordained the confirmation of the great charler , and the char●er of the forrest , and commanded that the other statutes mode in his time , and in the time of his progenitors , be well and surely holden and kept in all points ; or that the citizens of london , who in their courts of justice in their city , have for so many centuries of years last past , to their very great advantages made use of the proces of arrest as a lawful and beneficial custom , and constrained all that were to enjoy the largely comprehensive freedom of that city , to take an oath to maintain the franchises and customs thereof , would have made it their business to get many an act of parliament to confirm them , if they had supposed it to have been prejudicial to them : and that the people of england should , in so many several ages since those pretended acts of repeal , not only have petitioned for several acts of parliament , for proces of arrest and outlawry in several actions , but through so many past ages and generations arrest and imprison one another in the way to justice , and not at all think themselves guilty of betraying their own liberties , and never complain of it : or that the justice of the nation should in all that long course of time be so sleepy or mistaken , as to continue and put in execution an act of parliament repealed , and maintain and continue a grievance . o● that our ancestors , who were not all restrained by that statute of e. . ca. . from the former more usual course of proceedings in actions of debt , by writs of summons , pone , and distringas ( for there were writs of summons , pone , and distress made use of in debt and accompt after the making of that statute , where there was such a visibility of estate , as the sheriff could not safely return , that the defendant had nothing whereby he might be summoned ( it having been in easter term , in the year of the reign of king edward the . declared to be a constant rule in law , quod nullus qui habet terras debet arrestari per corpus , ad reddendum compitum set per terras cum habeat sufficientiam . no man that had lands sufficient was to be arrested by his body , in an action of accompt ) as there may be at this day if the plaintiffs have a mind unto it , and would rather procede by a longer way about then a shorter . and should of themselves have made an election of the way of capias , arrest or outlawry , and continue it for above three hundred & fifty years without any thing like a complaint against it , if they could have believed that that act of parliament of e. . ca. . had been repealed , and a long and undeniable experience had not informed them , that it was a much better and expedite way of bringing men to justice , or that if the writs of pone and distress had been the better way , the statute made in the seventh year of the reign of king henry the fifth , which was sixty-nine years after , to give proces of arrest and outlawry in actions or writs for forging of charters or evidences , would have esteemed it to be for the common good of the people to have enacted it ; or if after the making of that statute , the course of capias , arrest , and outlawry had not been believed to be the most beneficial , the statute made in the th . year of the reign of king henry the seventh , for giving of proces of arrest and outlawry in actions of the case , which was made . years after , would have declared the way of pone and distress to have been the cause of great delays , or that the act of parliament made in the th . year of the reign of king henry the eigth , for giving proces of capias in writs of annuity , which was made twenty-eight years after the making of that statute , would have said , there were many delayes in actions of annuities , because no writ of capias did lie in that action ( acts of parliament in those dayes , and long before & after , having by our kings been granted upon the petitions and request of their subjects , and penned , advised or carefully perused by the reverend judges of the land , and councel in law of our kings and princes , before they were passed and ratified ) and that so many of our fore-fathers , who for so many years and ages have in every year been arrested , or voluntarily put in bail to appear and avoid it , should be so senseless as not to understand the said act of parliament of ● e. . ca. . to have been repealed , if any such thing had been , or deem it to be a grievance to be compelled to appear in a court of justice , or that all the plaintiffs in those kind of actions should be so wicked , as to continue that course and kind of proces : if they could have understood it to have been a grievance , the dean and chapter of lincoln would not have prescribed for a liberty in their court , to arrest in all personal actions , and the lievtenant of the tower of london the like , nor the judges have allowed those prescriptions , and all cities , burroughs , and corporations where they have connusance of pleas , would not upon a nihil habet returned , ( for that is so alwayes done of course in cities and corporations to warrant their arrests ) have claimed and exercised a power to arrest as well inhabitants as forreigners coming thither ; or that the judges of the admiralty , in sea-faring and maritime causes would have permitted , as they have anciently done , arrests to be made upon debts , contracts , charter parties or the like , or have been allowed to do it , if it had deserved to have been called a grievance , or that it ought not to have been done by the aforesaid supposed acts of repeal . and that none of so many thousand , or more then ten hundred thousand defendants should by pleas , demurrers , or otherwise signifie so much , or so many advocates , and so many learned judges , serjeants , and sages of the law , which have been since the making of that statute of e. . for the giving of proces of outlawry in actions of debt , should not of themselves have found out or have sought it from our kings and their parliaments some remedies , or would not have forborn the granting or acting by such kind of process , if they had conceived that the act of parliament of e. . ca. . had been replealed , or that such kind of process had been a grievance . and that more then one hundred thirty and seven parliaments , which have been since the making of that statute . and so many parliaments and assemblies of wise men , before and at the making of that statute , which met only to be wise , and find out fit helps and remedies for grievances , and things amiss should not foresee it to be a grievance , or be so careless as not after to procure some law or act of parliament , to give the people ease in it , or a fuller notice of the repeal thereof . when in the parliament of the th . year of the reign of king edward . the commons did pray , that the king would not grant protections , whereby men could not recover their debts ; which was as they alledged , a thing to the destruction of the people , and against common right . or that in so many petitions in all those so many parliaments for the redress of grievances , made and committed by sheriffs , under-sheriffs , and their bailiffs , and that all estates might enjoy their liberties , if no law be to the contrary saving to all men their rights , and the justly denyed petitions against the payment of fines upon original writs , issuing out of the chancery ; nor in that of the commons in parliament , in the th . year of the reign of that king , that writs of trespas in the court of common pleas , although long before then used , might be made as well by that court as by the court of king bench ; for that the court of kings bench was removeable at the kings pleasure ; and that the great charter , and the charter of the forrest , and all other statutes made by the king and his progenitors , for the amendment of the realm and tranquillity and ease of his people , might be kept and duly put in execution in all points ▪ or in the petitions of the commons of the county of kent , to that king in the parliament , in the th . year of his reign , against his officers of the castle of dover , for arresting by their catchpoles out of their jurisdiction ; or in the before mentioned great complaint of the clergy , made in parliament upon the death of robert de hauley , in the d . year of the reign of king richard the d . slain at the high altar in the church of westminster abby , when he being arrested and pursued by bailiffs , had taken sanctuary there , and the great debate thereupon before the king , or at the making of the act of parliament , in the seventh year of the reign of king henry the fourth , that impotent persons outlawed might make their attorneys , and the acts of parliament , made in the th . and th . years of the reign of henry the th . upon complaints , that men were outlawed , and could not know where to find either the plaintiffs or their attorneys , and remedies ordained ; or in the petition in the parliament , in the th . year of the reign of king henry the sixth , against the multitude of attorneys in the city of norwich , and counties of norfolk and suffolk , for their inciting and stirring up the people to suites in law , there should be no mention of that supposed grievance by the writs of capias and proces of outlawry , if it had then been thought or believed to have been one . and that in the thirty times petitioning in several parliaments of our kings and princes , for the confirmation of magna carta ( which as to that part of it , in the chapter or article twenty-nine , is the most excellent and the best of all our laws . the people of england should not understand the aforesaid act of parliament , made in the th . year of the reign of king edward the . for giving proces of arrest and exigent in actions of debts , and other actions therein mentioned ( if it could be interpreted , to be any violation of it ) or that in all their petitions for redress of grievances , and procuring of good laws to be made , there appears nothing at all to have been alledged , that by the common law the person of a debtor was not arrestable or that there is no positive statute law in force , for the continuing of the capias and exigent , against persons in debt and meerly civil causes , since the fancied repeal of the said act of parliament of e. . ca. . by the said statute of and e. . but they who are so loath to part with their causeless affrights or are so unwilling to loose the content of being the founders of a change , or alteration in the body politique , be it never so dangerous or of most certain evil consequences , and are willing enough that their fellow subjects , of whom they pretend to take so much care , should be at the trouble , hazard , and charge of the experiments , may do better to understand , or if they cannot , give leave to others to help them to understand . that the purport intent , and true , proper and genuine signification of the words of our magna carta ca. th . was to secure the people , that the king might not take or imprison any man , nisi per legale judicium parium suorum vel per legem terrae , which if extended to the people , in their affaires one with another , and made to be as obligatory and binding unto them , as it is and ought to be to the king , can have no other just interpretation then what sir edward coke hath given us in his comment thereupon ( published after his death , in the later end of march . or the beginning of the year . which is , saith he , as the statute of e. . ca. . expoundeth it by due proces of law ; and what that kind of process was , hath been already determined and proved , to be as well by writs and process of arrest , as by summons , pone and distress , though the latter , as the condition and course of the affairs of the nation then stood , was much more frequent and usual , and it appeareth by that part of magna carta ca. . and the exception therein , that there was a process or proceeding in law , besides the legale judicium , or trial by peers or jury ; and the process where defendants were not willing to come to judgement , and have their controversies determined ( which but in very seldom cases never was or is likely to be otherwise , there was and will ever be a necessity of compelling them by proces to appear in judgment , when they delayed or refused it : for as the great and learned grotius hath said upon another occasion , the liberties claimed from a prince , ought to be such as competere possint subditis , might accord with his superiority and their duty of subjects ; for our so eager clamours of liberty , cannot certainly be so nayled to any of their extravagant opinions and desires , as to induce them to think it either to be lawful , rational or consistent with the great charter , to deny the king or his subordinate courts of justice , a power to imprison any that shall be guilty of contempt , against his person or authority , and to constrain them to appear in judgment . for the way which the judges and interpreters of our laws have hitherto used , in the construction and understanding of parliaments ( nothing appearing to the contrary ) hath been an inquiry into the occasion and purport of them , commonly expressed in the preambles and reason thereof , and into the sense as well as the words of them , for the preamble of an act of parliament , saith dyer , sometimes lord chief justice of the court of common pleas , is the key to open the minds of the makers of the act , and of the mischiefs which they did intend to remedy ; and a man ought not to dwell upon the letter , nor to think that when he hath the letter on his part , that he hath the law on his part , say the judges in the resolution of the case between easton and studde , in regard that the rule in the expounding of statutes , is to search out the mind of the law-makers , what construction they would have made of it , if they were living : and that acts of parliament ought to be understood , by a reasonable construction to be collected out of the words thereof , according to the true intention and meaning of the makers of the act ; that statutes in the affirmative do not regularly take away statutes precedent in the affirmative , unless in some special cases and statutes referring to other statutes , do not make any alteration in law , but unto the points unto which they do refer , nor doth a latter act with negative words , say our laws , take away a former , if it be not contrary in matter : and the parliaments of this nation have alwayes taken care to use , express and clear words of repealing any statutes , which they intended to repeal by plain and certain mention thereof , with the times wherein they were made & sometimes repealed , but a part of some former acts by a new act of parliament , and enlarged and proceeded further then the former acts did extend unto , as in the act of parliament , concerning servants and artificers wages , made in the fifth year of the reign of queen elizabeth . the words and meaning of the statute e. . ca. . being no more then , that no man of what estate or condition that he be shall be , put out of land or tenement , nor taken , nor imprisoned , nor dis inherited , nor put to death without being brought to answer by due proces of the law. and in that of e , ca. . it is assented and accorded ; that the great charter , and the charter of the forrest be holden and kept in all points , and if any statute be made to the contrary that shall be holden for none . and being a confirmation in general of all the thirty-seven points , articles , or chapters of magna carta , granted in the ninth year of the reign of king henry the third ( some of which did concern the king in his profits ) did neither only intend that particular chapter of magna carta ca. . to be made void or repealed , or declare that what was done , or to be done by lawful judgment of men by their peers ( which could not be without some kind of proces or proceedings then in use ) or that what was done or to be done by the law of the land , should be repealed as contrary thereunto ; but did so not at all then intend to do it , or to affirm the due proces of the law to be contrary unto magna carta , either as to that twenty-nineth chapter , or to any other , the points , articles , or chapters of magna carta . as that some of the people being at the time of the making of the said act of parliament of e. . ca. . or not long before too busie in arresting , imprisoning and vexing one another by false accusations , made to the king and his councel that chapter or branch of e. . ca. . was made for the redress thereof , and for the good government of the commons , as that act doth import , having these words : to eschew the mischiefs and damage done by false accusers , which oftentimes have made their accusations more for revenge and singular benefit , then for the profit of the king , or his people , of which accused persons some have been taken , and sometimes caused to come before the kings councel by writ , and otherwise upon grievous pain against the law : it is assented and accorded , that no man be put to answer without presentment before the justices , or matter of record , or by due proces or writ original , according to the old law of the land ; and if any thing from henceforth be done to the contrary , it shall be void in the law and holden for error . both of which statutes will be best expounded by sir edward coke , who in his exposition and comment . upon magna carta ca. . and all the other parts thereof ( for out of that most commendable law those two acts of parliament of e. . ca. . and e. . ca. . do seem to have been drawn , and are but as confirmations of it ) saith that by the law of the land , is to be understood , the common law , statute law , and customes of england ; which though they be in the negative , have no reference or contrary matter unto that of e. . ca. . and do not prohibit the former allowed , and due proces of the law , or declare them to be contrary to magna carta , or any article or point thereof , nor have any express words , or so much as any preamble , which may signfie any purpose that they had to repeal it ; for all that is forbidden by those two statutes of supposed repeal , is to prevent the mischiefs complained of by suggestions to the king and his councel , and that no man be disinherited , put to death , or out of his land taken , imprisoned , or brought to answer , but by due proces ●f the law , according to the old law of the land. and the statute of e. . ca. . giving an order of pursuing a suggestion made unto the king , doth mention the great charter , and the words therein contained , that no man be taken , nor imprisoned , nor put out of his free-hold without proces of the law. for if our records and law-books , and the reason thereof , and all that hath been learned and believed hitherto do not fail us , those statutes or either of them cannot be interpreted , to intend to take away any lawful and necessary arrests , and imprisonments in actions of trespas , which were in use long before the making of magna carta , or the arresting or restraining of the persons & liberties of defendants , in actions of debt and the like ; or for a contempt of the king or his courts of justice , in not appearing when they were summoned or cited , or when they had no visible estate to satisfie , or were likely to fly or run away , the true intent and meaning of those statutes of e. . and e. . tending rather to confirm and establish that act of e. . ca. . then to repeal or take it away , the main scope or purpose of them being only to restrain any arbitrary government , or any lawless proceedings of the people one against the other ; for it is impossible by any sense or reasonable construction of those statutes , to conclude any the least design in them , or either of them to take away or alter a law or custom of the nation , which was not then at all so much as complained of , when by forbidding to do that which was against the law , they must of necessity be understood , to allow of that which was the law or consistent with it . for it hath been said and never denyed , to be a rule in our common law as well as in the civil law , that exceptio firmat regulam in casubus non exceptis , the exception or saving doth preserve and allow of that to be the law which is excepted , otherwise if the exception should be ( as certainly it is not ) nugatory and serves for nothing , the meaning of our magna carta it self , and all those very many statutes of confirmation afterwards enacted , must be ( as they can never be rightly taken to be ) that be the matter or cause civil or criminal , treason , murder or felony , no man is at all to be disseised , or put out of his lands , arrested , imprisoned , or compelled to answer , and the king , who is sworn to administer justice to his subjects , must by magna carta it self be denyed , and debarred the use of means to do it , and the people thereby put into a condition not to be able to obtain justice one against another . and if no laws concerning proces in debt , or other personal actions , which have been enacted or allowed by acts of parliament , subsequent to those before mentioned , and supposed repealing acts of parliament , made in the . and e. . or derived by necessary deduction from reason ( which ought to be the soul and constituting part of all laws ) shall not be allowed or taken for laws , the parliaments of england ( wherein all manner of grievances , and many times very small and inconsiderable , were seldom omitted to be complained of or petitioned against ) have by making of the statute of h. . for giving proces of arrest and capias in actions of forging of charters of h. . in actions of the case and h. . in actions of annuity not only not remedied but enacted grievances , and all our other laws which have been since made , concerning the taking or imprisoning of mens bodies , in actions of debt or other civil and personal actions , or been put in execution have been no other then abuses , and transgressions of the law , and all that so many learned conscientious and reverend judges of the law , and sworn to judge according to it , have since those times done or permitted to be done , in pursuance of those latter laws , have been but as so many great mistakings to the oppression of the people . and the parliament of car. primi , whereof the very learned selden , and that great lawyer sir edward coke , and many very worthy men and lovers of our english laws and liberties were members ( some of which had not long before made themselves prisoners to secure a pretended liberty ) would have been guilty of a great oversight and inadvertency , in not getting better provisions in the act of parliament , made upon that which was called the petition of right , wherein that aforesaid part of magna carta ca. . and the statutes of e. . ca. . r. . ca. . and the very act of e. . ca. . now so much insisted upon , are confirmed . and the acts of parliament of e. . ca. . e . ca. . e. . ca. . and quoted in the margent of the said act , are declared to be good laws and statutes of the realm ; and it was ordained , that no offender , of what kind soever , be exempted from the proceedings to be used , and punishments to be inflicted by the laws and statutes of the realm . all those acts of parliament being then expounded and understood , to be only intended against the imprisonment of men , by the king or his councel , without cause shewn ; and the same parliament did then procure diverse acts of parliament to be repealed , but not that of e. . ca. . which neither was repealed in that nor any other parliament , in terms or words intelligible , or by implication or otherwise , and did never yet deserve to be so since the making thereof . nor would that parliament , labouring so much for liberty , have at the same time allowed of that act of parliament of e. . ca. . for the proces of capias , and exigent or outlawry in actions of debt , if it had been a grievance , or not understood as it ought , to be a legal and necessary part of the laws of the land , or have omitted so often and daily happening concernments of themselves and their posterity , if they could have thought that way of proces● and proceedings at law , either was or could have been a grievance , when as they did then so much believe all the grievances of the nation , to be by that abundantly satisfactory act of parliament , made upon that petition of right , to be banished and their fears quieted , as they caused publick rejoycings and bon-fires to be made for it . and if it had not been so understood , by the reverend and learned judges , and sages of the law , who were then in being , and have been since entrusted with the administration of justice , such proces and proceedings would never certainly have been made when the petition of right prayed , that in the things aforesaid all his majesties officers , should serve him according to the laws and statutes of this realm , as they would tender the honour of his majesty , and prosperity of the kingdom ; and the king in his answer thereunto , and giving it the life and power of a law , did will that right should be done according to the laws and customes of the realm , and that the statutes be put in execution , that his subjects may have no cause to complain of any wrong or oppression , contrary to their just rights and liberties . for it must be a more then an ordinary hypochondriacal melancholy , that can perswade any man to think , that if the process of arrest or outlawry could by any foresight or prospect have been believed , to have been either a grievance , or illegal , or any seminary of ill consequences , that ever to be lamented unhappy parliament begun in november . would in that fatal remonstrance of theirs , published to the people the th . day of december following , wherein they were so willing to amass every thing that might but look like a grievance of the people , and were so effascinated in their evil purposes , as they crowded in amongst them many essentials and necessaries of government , have omitted such an important and often happening grievance ( if any could with any colour of law or reason have believed it ; or that in the nineteen high and mighty propositions sent by them unto him in june . or in the message or committe of the lords and commons then remaining at westminster , sent unto him at oxford in anno . by the earl of northumberland , william peirpont esquire , and others ; or in the treaty and propositions at vxbridge for peace , betwixt the king and that misnamed parliament in the year . such a necessary , if it had been thought to have been one , should have been neglected ; or in the message of the lords and commons , in the then so called parliament , sent unto him when he was a prisoner at holimby in the year . with propositions for peace , nothing should have been desired to prohibit arrests ; but on the contrary an act of parliament was required , for confirmation of all customs , charters , liberties , and franchises of the city of london , which for many hundred of years before had been approved : or that in the bills and propositions sent unto him in the same year to the isle of wight , when he was there a close prisoner : or in an act or ordinance , made by the lord major and common councel of london in the year . for the better regulating of that cities courts at guild-hall , in which notice was taken of their ancient customs , and diverse abuses committed by serjeants at mace and their yeomen , in arresting of men , there should be no mention made of any original grievances or illegality by or in the proces of arrest , nor any orders made or desired to be made against it . until therefore this invisible and untelligible repealing act of the statute of e . ca. . shall be pleased to appear and shew it self , the founders of that fancy may do well to build no further upon it , but silence their causeless out-cries against it : and when such or the like imaginations shall offer themselves , think rather that acts of parliament ( according to the advice and opinion of the judges in doctor foster's case ) which have been established with so much solemnity , wisdom , gravity , and universal consent for the good of the weal publick , ought not by any strained construction or ambiguous words ( if there had any been ) in any subsequent act to be laid aside , disused , or abrogated ; and that doubtful aequivocal words ( if there had been any ) ought according to the rule in gregories case , to be interpreted in the better and more likely sence . and not trouble themselves as they have lately done for before the year and . ( when liberty ran mad , and the factious part of the people did too much read the books of plunder and sequestration , and admired the models and contrivances of hugh peters , huson the cobler , pride the drayman , and every mechanick and tradesman , and every mercenary red-coat rebel-souldier , who would by his indigested conceptions be a solon or licurgus ) they did not to subvert , as they endeavour'd to do , our long experimented & approved laws & customs , to make room for their own ungodly advantages , and sordidly ignorant alterations , and at the same time allow the caption and horning of that by them conquered and once illegally covenanting scotland to be lawful . nor vex themselves and others , as they have done with the chymeras and phancies of that never to be found repealed statute of e. . cap. . and their so much mistaken gorgons head , and affrights of their liberties being likely to be lost by that or other our laws , when our laws and the due execution thereof are and have been by our kings and princes , and their just authority the only means under god to preserve them . or be so over-lavish in shooting their bolts , in undertaking to assert , that england is impoverished more then a million of money sterling every year by sheriffs , bailiffs , serjeants , marshals-men , proces-makers , habeas corpus , rules , writers , &c. ( as a late anonimous champion of those kind of liberty mongers terms them ) for which he would decoy as many inconsiderate people as he could , into an opinion and belief , that the creditor is not the better one peny for it ; which is as impossible to be proved or be lieved , as that bears are enabled by nature to fly and usually do it ; or that the mountains of mountains the alpes , those highest hills of the christian world , do usually at every jubile leap to rome , to obtain an indulgence or pardon from that holy father , for being so high-minded . and what ever far lesser sum of money those officers fees ( which as to the process-makers are very small and dearly enough earned ) do amount unto yearly , it will be very difficult for that man of confidence , whosoever he be to prove that none or very many of the creditors did not receive satisfaction of their debts and charges , or more then a peny , or were not the better for it ( for the defendant , where there is any ability to answer and pay them , do most commonly bear the burden of them ) and that the defendants charges in a year do amount to a million of money sterling , or any such vast sums of money , as his monstrous and incredibile guess , bewixt sleeping and waking , hath calculated it , and will be as wide of any truth or probability as if he had said , that he had in a forreign country seen two phaenixes rosted , and brought to eat in a dish , and had been in a colder climat , where the extremity of cold was so great as the words spoken over night did freeze , and were legibly to be read in the air the next morning . and those sons of rapine , who are so given to change , and doe make it their business to hunt our laws , like the ermyns for the booty of their skins , may better employ their time in a sad and serious repentance of that dirt , and many scandals which they have most injuriously flung upon them , & in throwing amongst the people those , though foolish , yet infectious tales and opinions , that there are now ten thousand men in prison for debt , and that the proces of outlawry have done more mischief to the people of england , then the writs of capias ( which neither he nor any other can ever prove to have been primarily or causally and per se guilty of it ) or then the bills of middlesex or writs of latitat , which must either be done in his humour or natural of telling rampant or impossible tales , or on purpose to cast those legal process and proceedings , into an odium or hatred , and will appear to be as much misled by his ignorance , as he was before in his overhasty arithmeticque , when he adventures to say , that a noble man , by being outlawed , is made incapable to sit in the house of peers , a clergy-man may forfeit his benefice , or a lawyer be made incapable of pleading at the bar , when our laws do remember no such matters ; and a noble man and peer of parliament cannot in any civil action , or ordinary trespas by our laws be outlawed ; and although some other persons may by abuse or error happen to be outlawed , when they should not be outlawed , and by some evil accident never be able to find the plaintiff or his attorney , whereby to recover his damages , yet it is so seldom as it is very rare ; and our laws as they did never undertake to prophesie , or to have a prescience or certain knowledge of things to come , so they never provided against raro contingentia , things seldom happening , or of little consequence , neither can our or any other laws be able at all times , to prevent all the tricks and evil actions , which the deceitfulness of mens hearts do too often put in practise . and that nameless author may , upon his better acquaintance with our laws , inform himself , and those for whom he so much busieth himself , that if an outlawry should , as he surmiseth , be indirectly gained , the court out of which it proceedeth do , when discovered , never fail severely to punish such an offender , and give what remedies they can unto those that do suffer by it ; and that there is a statute , which was made in the tenth year of the reign of king henry the sixth , and renewed in the th . year of the said kings reign , yet unrepealed to prevent and remedy it . and is as much out of the way when he saith , that tenures in villenage were repealed by act of parliament , when in the parliament of the fifth year of the reign of king richard the second , the manumissions of villaines , which had been extorted from that kingby wat tiler and his rout of rebels , were declared to be void , and the wearing out of that tenure , in the many intestine wars and troubles of the nation , and the favour and indulgence of our later kings and princes , and the nobility and gentry of this kingdom , is to be ascribed more thereunto , and a desuetude & length of time , then unto any thing else , which hath so washed many a jolly gentleman that would be , and men of great estates , whose extractions and originals ( were at the first lodged in those tenures ) in the waters of lethe and oblivion , as there are now very few or none to be found of them . and is as little to be excused when he saith , that the mortmaines of abbies were taken away by acts of parliament , unless that he means by the total dissolution of them , which hapned long after those mortmaines , and is as wide from the mark , in his impertinent accompt of the money or profits of the bishops courts , as he is of any proof or certainty , that they are a burden , and can hardly instance any one attorney ( but certainly not many ) that hath in one writ of priviledge , named or sued one hundred defendants , and held them to special bail , whereas such a vexation would have been remedied by an appeal unto any judge of the court , out of which such writ issued , who had by the law a power in his discretion , to order whether any special bail should be given , as the case required . chap. xiv . that the nation hath not been base or slavish , ever since the making of the said act of parliament of e. . ca. . and is to prove , when he can , that many men have languished to death for fear of an imprisonment ; for some one or few melancholick persons , may in their retirements , sad apprehensions or multiplied fears , have indangered their healths , which makes not the justice or laws of the nation to be any more guilty or cause of it , or deserve to be abrogated : then the sacred scripture is to be blamed , for that some persons have by the reading of it , or hearing of it preached , been so disturbed with an affright of conscience , as they have been distracted , or laid violent hands upon themselves . or that his late majesty of glorious memory ( if not mis-informed by the concealed author of such frivolous , feigned and false complaints , or by some of his proselites ) had so deep a sense of his subjects sufferings , by such writs and process as he intended the inlargement of prisoners for debt , and the abolishing of all arrests and outlawries for the future , by the then parliament , if he could have received any recompence for the remitting of all forfeitures , and other profits arising to his crown ; nor doth give us any evidence for such wild imaginations , nor ever will be able to do it ; or that the nation hath been base and slavish since the said act of parliament of e. . ca. . and other acts of parliament since made , which our laws , records , and histories ; will abundantly confute , and our neighbour nations envying our glory , freedom , peace and plenty , may decry as an ingrateful and horrid falsity , deserving to be had in everlasting detestation . unto which bundle of untruths , and feaverish deliriums , are likewise to be added those giddy assertions ; that the people are unsecure in their estates , and that their good and welfare depends upon their being manumitted and enfranchised in their persons , and made noble and free by abolishing of the process of arrest and outlary . and that such an act of grace will be accompted by all goodmen and their posterities , a sufficient recompence for all the subjects past sufferings , and be the greatest mercy that ever any king of england extended to his subjects , since they were a nation . which should it take effect , may be as little successful to the pretended advocat and his party , and the trade and interest of the kingdom ; as the eagles carrying in another case , the burning cole in the apologue to her nest : and until they could have been sure of a better , which they are never like to be , might have forborne their snarling and barking at our laws , of which that act of parliament of . e. . ca. . was accompted to be a part , which until the distemper which seized upon a seditious part of the people , in the unhappy year of . were ▪ so well beloved and deservedly commended , as thirning , chief justice of the court of common pleas , publickly declared in the th . year of the reign of king henry the th . that the laws of england were in the reign of king edward the d. in the greatest perfection , that ever they were the judges sage , and learneds and the pleading , the greatest honour and ornament of the law , were in that kings reigne of that excellency as those of former times were but feeble unto them . sir john fortescue knight , lord chief justice of the court of kings bench , in the reign of king henry the sixth , by comparing of our laws and government , with the laws and government of france and other nations , hath in his learned book ! written on that subject , proved and demonstrated that our laws of england , do deserve the preheminence over all other laws , and do more secure the people in their estates , liberties , and properties then those of france , or any other nation . queen elizabeth , who made it her constant and usual charge to her judges , to do justice , and not to disturbe or delay it . governed her people by her laws , in plenty , peace , and prosperity , to the worlds admiration , terror of her enemies , and the comfort and support of her friends and allies ; did so after her death reign and live in her peoples hearts , as they in or about london have to this time , from the coronation or beginning of her happy reign , now above one hundred and sixteen years ago , in a grateful acknowledgment of it , never omitted to celebrate that day , with the ringing of bells , some legacies having been given in some places also , for the perpetuating thereof ; king james had a great care of the expedition and execution of the laws , in whose peaceable and plentiful reign , ten years have passed without any tax or assessment of the people : and king charles his son , made a great part of his coyn to wear the inscription , that he fought against a rebellious part of his subjects , to maintain the laws , priviledges of parliament , and liberties of the people , and dyed a martyr , because he would not betray , or deliver them up to a lawless , unlimited , and ever to be dreaded arbitrary power . so as that seducing author , might have found a better imployment , then to throw dirt at our laws before he understands them , and might have been able to have given a better accompt of his time , if he had followed the advice of sir edward coke ; who was so much a welwiller to the proces of arrest and utlary , as whilst he was chief justice of the court of comon pleas , he did never dislike or refuse the putting his name and teste to such kind of writs , under the kings seal entrusted to his custody ; and being afterwards made lord chief justice of the court of kings bench , had so good an opinion of the process of arrest , and the necessity and usefulness thereof , as that to maintain and support the writs of latitat and bills of midlesex in actions of debt , and other personal actions then too often made by that court , which had no jurisdiction or conusans thereof ; but in case of a defendants present imprisonment , or of priviledge of some of their members to hold pleas in such kind of actions , he feigned a prescription to be made and used in the declarations thereupon , that the defendant was in custodia marr ' marescalli curiae and actually a prisoner , when he neither was so at the time of the making of the said writs , or the time of the defendants giving bond for his appearance to the sheriff , or at the time of the plaintiffs declaring against him , as he did publiquely declare in print , that every man ought , next to his duty to god and his king , to yield a due reverence and obedience to the common laws of england , for that of all laws humane they were most equal , most certain , of great antiquity , least delay , most beneficial , and easie to be observed ; and that he could defend them against any man , that is not malicious without understanding , and make it manifest to any man of judgment and indifferency , by proofs pregnant and demonstrations , and by records and testimonies luculent and irrefragable . which just and due value and estimation of our laws may well be credited , when if a jury of the subjects of our neighbour nations , kings and princes , or of the republique of holland , that corporation of kings , were impannelled and fitted with the knowledge , and understanding of the excellency of them , they could not either as to the imposing or payment of taxes , or to any other particulars , refuse to give a verdict upon oath , that our laws and customes do in their perfection , and right reason generally far excel those by which they are governed , aud that the subjects of england and wales are by the happiness of a well tempered monarchy , and our laws as secure from any danger of arbitrary power as any people under heaven . and he would find it to be a difficulty insuperable to ptocure our merchants of england , or any of those who do undertake to insure the hazardous adventures of those that do go or send to sea , and see the wonders of the deep and adventure their personal estates upon the cholerick waves thereof , not seldom accompanied with humerous and raging winds , to give him an assurance and certainty , that the people shall not be ruined by that his goodly indigested project , which in its folly and inconveniencies , as to the credit , reputation and justice of the nation , exceeds that of jack cade , that great master of ignorance , who had perswaded his rable-rout to believe , that it would be an excellent piece of reformation , and much for the good of the people , to suppress all learning and dispatch all business and affaires by the help only of the score and the tally . and will howsoever be as incertain of the success , which none but mad men , and such as the turks and men of mecha do usually adore , can believe to be answerable to the end of publick good ; as he may sooner adventure to make an affidavit , if any credit could be given unto it , of the possession infallible of the imaginary elixir or philosophers stone , the only essay of the gaining whereof , hath undone and emptied the purses and estates of many more learned then ever he will be , then that the people of england have either lived in slavery since the making of that statute of . e. . ca. . or that there will such an happiness and mercy arrive or redound , as he pretends unto them , by the abolishing of the process of arrest and outlawry , when seven parts of eight , the whole to be divided into no more , shall be ruined in their present estate , and future hopes of a better for want of credit and trust : and all the men of money lent out and trusted , which are the smaller number , shall be in danger enough of loosing it ; and the free-holders of lands , which comparatively , are far the smaller part of the nation , shall be only the men , and perhaps not half , or a quarter of them , that may be trusted or compelled to appear to any actions of debt , or for money which shall be commenced or brought against them ; and the trade of the nation which is now not so much outward as it either should or ought to be , shall be very little stocked , or driven with ready money for want of trust , or such a process as may with any certainty , or expedition compel the performance of it . or that his late or now majesty , when our kings and princes were wont in many of their writs and rescripts , to acknowledge that they were debitores justitiae , debtors to their people in matters of justice , & astricti , bound and obliged unto it by their coronation oaths , could ever think it to be agreeable to their interests , or correspondent to their oaths , and other obligations to god and man , to throw the justice of the land , with which they have been by god intrusted , into a chaos and confusion , to gratifie the humors of a smali or inconsiderable number of his subjects , the quondam rebells , and most factious and ignorant part of them , and ruine the multitude , who are as much committed to their cares as the other , ne cum parti alicui placeant reliquas deserant , least when they seek to please a few , they do forsake and abandon those who are much the major part , and greater number . howsoever let sir edward coke say and write all that he can , in the never to be denyed just praises and commendations of our laws , those that without any cause or knowledge do too much maligne and hate them , adore a resolved infatuation , and believe their fort of phansies to be impregnable , and out of the danger of any assaults , or being taken , will by their good wills , rather then forsake their designs , and the hopes they have of some new employments , oblige and tye him to his former mistaken opinions , delivered in the aforesaid sir william herberts case , and likewise in his comment ▪ upon magna carta ca. . that the imprisonment of the body for debt , unless in the king case , was not by the common law before the making of the statute of e. . ca. . although in all his reports and comments , and other his learned writings , he hath not at all inveighed against the process of arrest and outlawry in actions of debt , or other personal actions , or declared or made any mention , that they were either illegal or a grievance : and when he said , that imprisonment of the body for debt , unless in the kings case , was not before the making of the aforesaid act of parliament , did no where say , that it was not before that time , upon contempts of courts of justice , or the writs or mandates thereof , or upon a probability of a defendants running away ; and are the more pertinatious in it by sir edward coke's being so much enamored on a manuscript , called the mirror of justice , which as to the copie , which he follows and cites in his aforesaid comments upon magna carta , and that so called mirror of justice , which was afterwards printed and published in the year one thousand six hundred forty-six , by william hughs of grayes-inn esquire , flagranti bello , when the laws and liberties of the people were by a wicked rebellion , under a pretence of reformation of religion for some years before endeavoured , to have been destroyed , and said to be translated out of an old french copy , which hath been justly suspected , & in many important matters proved to be fictitious , & to men of learning , and those that have traced the paths or fields of learning and manuscripts , and observed the contrariety , omissions , additions , transcriptions , mistakings , interpolations , annotations , impostures and words , therein creeping out of the margent into the text ; and those many counterfeit books and manuscripts , which even in the primitive times of the church and after ages , have been imposed upon posterity , and too often are and may be seen ; will administer no matter of wonder . they therefore who do so cherish and delight in the novelty of opinions , and are most pleased with those which are likeliest to answer their expectations of gain and profit , or may serve to engage the protection and favour of some hopeful and prevailing partie and faction , may do an act of justice to themselves and others , to pause a while and look a little more , into the aforesaid opinions of sir edward coke , although he must be acknowledged to have been a very great rabbi in our laws , and consider well the grounds , authorities and reasons , upon which he hath founded them , before they do jurare in verba magistri , and espouse or build upon them . chap. xv. an examination of the opinions of sir edward coke , in his report of the said sir william herberts case , touching the process of arrest used in our laws , and the many errours appearing in the book or manuscript , called the mirror of justice , and the fictitious matters and relations mentioned therein . for although in criminalibus & capitalibus causis , in criminal and capital causes , an arrest or real citation , as the civil lawyers call it , is and hath ever been used by the laws of god , nature and nations : there shall not be such gentle process or proceedings , by way of attachment as is usual in other cases , but such malefactors are presently to be arrested , and the goal or prison is to be their sureties , until they defend or clear themselves ; yet ▪ those kind of necessary proceedings can have no other original or ground to support or warrant them , but what proceeds from the before recited grounds or causes , or some of them ; because until the fact be tryed , it is but an accusation , and not alwayes so much as a probability , but a change or suspition that it was done by him that is accused , and there will be alwayes a magis and minus , and variatioe of circumstances in such kind of offences , which may either lessen or heighten them ; nor do those rules which are given by bracton ▪ for the reason of arrests or restraints of liberty in personal actions before judgment , that a habeas corpus , which amounteth in effect to a capias or restraint of the person or his liberty , is presently to be granted propter privilegium eruce signatorum & mercatorum , in respect or favour of those that were to go to the holy war , or were merchants ; or propter causam sive necessitatem , for some urgent cause or necessity of dispatch ; or in trespas , propter atrecitatem injuriae , the horridness or evil of the offence , or propter personam contra quem injuriatum est , ut si injuriatus sit domino regi vel reginae , vel eorum liberis , vel fratribus , vel sororibus , vel eorum parentibus & propinquis , in respect of the person against whom the wrong is done ; as the king , queen , their children , brothers , sisters , or their parents or kindred ; come up to the rules of justice for urgency of affairs , necessities , or occesions , considerations , or respect of persons , can of themselves be no cause of making justice , which is not to be a respecter of persons to be eccentrick , or go a step out of her way , or to do any thing in one case , which should not or ought not to be done in other cases , having the like ground of reason and justice , attended with the same circumstances ; neither can atrocitas facti vel injuriae , the grandeur and oughliness of the offence , be the sole cause or ground of arrest , in common or petty actions of trespas , or for words , if there could properly be any atrocitas or hainousness in them , or where it is done involuntarily ; as in cases of trespass , or damage done by a mans cattle , for trespass may be greater or lesser ; and if every trespass could be understood to be of the greater size or magnitnde , and so horrid and enormous ; yet there can be no reason to make the caption or arrest to be in part of corporal punishment , before the judge or magistrate be ascertained of the guilt of the party , or instructed how to keep the order which the laws of god , nature and nations , and our magna carta have enjoyned ; that is to say , to punish only secundum quantitatem delicti , according to the nature of the offence . and that supposed ground or reason given by sir edward coke , will be as deficient that the common law of england , abhorring all force as the capital enemy to it , subjects the body to imprisonment until it hath made agreement with the party , and fined to the king , bring any better reason with it . for if the king shall ( as he conceiveth ) punish force by a capias to arrest the body before the party be permitted to defend him-or a tryal had by jury , whether he be guilty or not , that would be more against magna carta , then any process of capias or arrest in debt can be dreamed or fancied to be , and a capias pro fine , after a tryal and finding guilty , will either shew that it was not the arresting of the body in trespass , which was intended or inflicted for the punishment , but the capias pro fine ; and if both , the capias in trespass before judgement , and the capias pro fine after judgement , should be inflicted for one and the same offence . they would not be secundum modum sive quantitatem delicti , proportionate to the offence , and the capias to arrest would be before the king or his courts of justice , could be ascertained that there was an offence . nor will that other cause or ground given by him in the report of the said sir william herberts case , that the king may by the common law arrest the body of the debtor , for that thesaurus regis est vinoulum & bellorum nervus , the money and treasure of the king is the bond of peace , and sinuwes of war obtain the conclusion which he aims at : for that were to make a king or supream magistrate , which ought to be lex viva , and justice it self , to destroy that which he was sworn to protect , and give him licence to break laws , who is not in ordinary cases against the rules of justice , and right reason , to give such a liberty to himself or any others , or to do an act for an advantage or necessity , which the even and adequate rules of justice , common right , or right reason cannot allow . so as by the favour of so great an autho●●ty in our laws as sir edward coke is , and with as much reverence as is or can be due to so great a lover of the laws of england , and the veneration which he justly merits : i must of necessity , by what appears in the cabinet and treasury of time and antiquity , and what is clearly to be perceived in those pure streams , which the fountains of justice and right reason have imparted unto mankind , assert what i have done , and conclude that he was a man , and hath as the best authors may in their books sometimes do , which are not scripture and canonical , erred in averring that there was no process of arresting the body of a debtor , either before or after judgment , until the statute of ed. . which gave process of outlawry in actions of debt . when in allowing process of arrest in debt in the kings case , as he doth in actions of trespass , he must acknowledge the same reason and necessity , ( which is a just and rational coertion to appear before the tribunals of justice , and of caution to be given to abide their judgments , to be in actions of debt , and other personal actions . and he himself in many of his books and writings hath as well as the civil law , and our common law , and the law of nations affirmed , that the same reason may claim the like law ; for the reason that joseph would have imprisoned his brethren , upon a suspition that they were come to espie the land , and kept simeon a prisoner until their words ( and denials ) were proved , gives us the reason , necessity , and justice of arresting in personal actions and debt , as well as trespass , until cause or caution be given of appearing in courts of justice , and performing the judgments . and that learned judge could , if he were now living , very well remember , that he hath often said as well as found , that many of our acts of parliament are but declaratory of the common law , and that which was long before used , and understood to be as it was reasonable . that the matter or thing excepted in an act of parliament , is not included in any purvieu or provision of it , but is out of the reach and gun-shot thereof ; and that when in the statute of magna carta made in h. . ca. . it is said , that no freeman shall be taken and imprisoned , or be disseised of his freehold or liberties , or free customes , or be outlawed or exiled , or otherwise destroyed , but by lawful judgment of his peers , or by the law of the land. and by ed. . ca. . that no man shall be taken by petition or suggestion , but by indictment or presentment , or by process made by writ original at the common law. he is in his comment upon magna carta , and that statute of h. . of opinion , that the words per legem terrae , do refer to all the procedent matters in that chapter or statute , that that statute was but declaratory of the old law of england , that a commitment by lawfull warrant either indeed or in law is accounted in law a due process or proceeding of law , and by the law of the land as well as by force of the kings writ : and that if a man be suspected , and he flyeth or hideth himself , it is a good cause to arrest him , that in many cases a man may be by the law of the land taken and imprisoned by force of the kings writ upon a suggestion made ; and that against those that attempt to subvert and enervate the kings laws there lyeth a writ to the sheriffe in nature of a commission ad capiendum impugnatores juris regis , & ad ducendum eos ad gaolam de newgate , to arrest the impugners of the kings laws , and to bring them to the gaole of newgate , and if he had not been of that opinion , the words of magna charta in that statute of . h. . can if they were put upon the rack and tortured , bear no other genuine sense or interpretation then that no man shall be taken or imprisoned but by lawfull judgment of his peers , or by the law of the land , and those words of the statute of . ed. . ca. . that no man shall be taken by petition or suggestion , but by indictment or presentment , or by process made by writ original at the common law can receive no other construction , but that a man may be taken by process made by writ original at the common law , of which nature are the process or writs of capias in the court of common pleas at westminster , which are made upon original writs issuing out of the chancery , have been in use upon occasion , and are matters of record before the justices in this kingdom , long before the making of those statutes . and such an universal approved ancient long and continued praxis founded and fixt upon the laws of god , nature and nations , in order to the preservation of faith and justice ; those grand supporters of humane societies , should need no advocate to plead and justifie the necessary use thereof , but be sufficient to perswade the opponents to acquiesce in the reason and legality of it . and that great lawyer sir edward coke , might have had more lawrels to have encompassed and grown up by his urne , and had not so much eclipsed that great reputation which he had gained in his studies , and profession of the laws as he hath ; if he had not without a due and serious examination so much taken upon trust , caressed , magnified , and recommended to posterity that manuscript , called the mirror of justice , and some other manuscripts so often by him appealed unto , and vouched in his . part . of the institutis , or comment upon magna charta : in which consarcination called the mirror of justice , that mirror of justice , maker or deviser dreameth truly to have recited some exemplary judgmeets , or direful punishments inflicted by king alured , or alfred , upon . judges of his ; times for supposed errors and misdemeanors by them committed , and hanged them , who with great probability may be believed not yet to have been hanged by that king or any other , for that if any such remarkable things or examples of justice , had ever been done by him , they could not in all likelihood have escaped our old historians , symeon , dunelmensis , ailredus abbas rievalensis , john brompton , william malmesbury , henry huntington , roger hoveden , henry knighton , matthew of westminster , ingulphus , and all our other ancient times , remenbrances , nor would have been unrecorded by asser menvensis , , who for the fame of his learning being sent for out of wales , to come and live with him , was preferred by him and made a bishop , and residing in his court , wrote his life and recommended to posterity , his most memorable actions , excellent qualities and endowments , but was so far from the registring of any such severeties , as on the contrary he doth make mention of the extraordinary clemency and lenity of that virtuous prince , who although he was a most diligent inquisitor of any male administration of justice by his judges ; yet saith asser menevensis , leniter advocatos aut per scipsum , aut per alios suos fideles quoslibet interrogabat quare ita , nequiter , judicassent utrum per ignorantiam aut propter aliam malevolentiam : id est utrum pro aliquorum amore vel timore , aut aliquorum odio aut etiam pro alicujus pecuniae cupiditate . gently calling them to him , he did by himself or others whom he might trust demand of them : wherefore they had given such judgments , whether ignorantly or for any ill will , or for love , fear , hatred , covetousness , or love of money , denique si illi judices profiterentur propterea se talia ita : judicasse eo quod nihil rectius , de his rebus scire poterint tunc ille discrete , & moderanter , illorum imperitiam , & insipientiam redarguens aiebat ; ita inquiens nimirum admiror vestram hanc insolentiam eo quod dei dono & meo , sapientium gradus usurpati sapientiae autem studium & operam neglexistis . but if those judges did confess that they had so judged , or done because they knew no better , then he did discreetly and moderately shew them their ignorance , and say unto them , truly i do very much wonder at your folly ; for that by gods guist and mine , you have taken upon you the degree of my wise men and judges , but the study of the laws you have neglected . qua propter aut terrenarum potestatum ministeria quae habetis illico , dimittetis aut sapientiae studiis multo devotius docere & studiatis impero : wherefore i command you either suddainly to leave your places , or give your minds more unto study . quibus auditis verbis perterriti veluti pro maxima vindicta correcti comites & praepositi ad aequitatis discendae studium totis viribus se vertere nitebautur , ita ut mirum in modum illiterati ab infantia comites pene omnes prepositi & ministri litteratoriae arti studerent malentes insuetam disciplinam quam laboriose , discere quam potestatum ministeria dimittere . whereupon they viz. his earles and subordinate judges , being as much terrified as if they had been actually punished , did wholly addict themselves to the study of the laws , so as to a wonder the earles and judges aforesaid ; many of whom from their youth were ignorant and illiterate , did by study endeavour to make themselves more able , choosing rather the hardship thereof then to be put out of their places . and the names of those judges , which were said to have been hanged , do if there were any such very much favour of later times , or if any of them were earles ( for so most of the provincial judges then used to be ) should if guilty , by the custome of this and other nations , unto which this of ours may in that and many other things be found not to have been altogether a stranger , not in all likeilhood have been subjected to so vile and vulgar a punishment , and the offences for which those imaginary judges are by that author said to have been hanged , were such of which there were then for ought appears no laws , in being to make them guilty of the breach thereof . for all the laws of king ina , which have come unto us who reigned here in the year of our lord . and next preceeded king alfred , and most of the laws of king alfred and the saxon and danish laws of their several kings , which reigned after him did ordain and inflict their punishments by pecuniary mulcts with relation to their capitis estimationes valuation of their qualities and estates , and there were certain known and appointed rates for the redemption of lahshlite or manbote for manslaughter , or the death of a man , he which killed a stranger forfeited . partes of esiimationis capitis to the king , and the . part to the children or kindred of the party slain . theft was punished by the laws of king alured , who reigned in the year . ratione . hidarum , so as if the offender had been the owner of . hides of land he which stole any thing out of the church was to pay the value of the thing , and to have his hand cut off and there was a capitis estimatio , for a nun taken by force out of a nunnery , or killing a woman great with child , a man having for some criminal offence forfeited his liberty , or being adjudged to be a slave for felony was not to be hanged untill the . offence , and it was in the accusers option or choice to have him only beaten ; of which book compiled out of many fragments , the author doth not seem ; to be well pleased with our magna charta , and appears to be a great fault finder and complainer of the abuses of too many things in the laws of the time wherein he lived , and doth not well agree with himself in some of his own positions : as where he saith it was forbidden that none should be distrained by their move able goods , but by their bodies or fees. in another place concludeth that the imprisonment of the body of a man is an offence if not for tortious judgments . that no man is imprisonable for debt , and none to be utlawed if not for mortal felony and menmentioneth the use of justices in eire when sir. henry spelman saith , the justices itinerant , or in eire , were not here instituted untill the reign of our king henry the . and might have remembred if he had been so conversant , as he pretended with king alfreds laws , that imprisonment of the body in civil actions was not unusual in the time of his reign ; for that by one of his laws , if a man had given a pledge upon oath and promised ( which was not then infrequent ) quod juste & legitime praestare potuisset neque prestiterit arma fortunasquae , suas omnia amicorum fidei concredito ipse in custodiam regiam per . dies mittitor subiturus supplicii quod ei episcopus pro meritis imposuerit sin spatio haud plene confecto fugam agitarit fugientem que ante verterunt per dies in carcerem ut quidem antea fieri oportuit conjicitor verum si fuga elapsus fuerit ab omni legis patrocinio destitutus habetor : atque in omnibus christi ecclesiis anathema esto . quod si quisquam alius pro se fidem dederit penas fide jussonis violatae dato & imperatum subito . that which he might justly , perform , and did neglect , and not do it , his armes and all his estate and fortunes should be sequestred into the hands of his friends , and himself imprisoned in the kings prison , by the space of . dayes , there to undergo such punishment as the bishop according to his desert shall impose upon him , but if before that time elapsed , he shall escape and be taken again , let him be imprisoned for . dayes as he should before , and if he shall again escape , then let him be out of the protection of the law , and excommunicate , but if any have been his surety let him pay the forfeiture . chap. xvi . that the late incessant needless complaints against our laws , and the proceedings in our courts of justice , had in the bottom of it a design of overturning monarchy and government , and to create offices places and employments , and profits to , the contrivers thereof , and their party . but there must be somthing else that hath made all this stirre and inquietude , in the minds of those causeless kind of murmurers , and hath so far transported themselves out of themselves , as to forsake the reason of mankind ; for otherwise it cannot easily get admittance into any mans apprehension and belief : that land-souldiers , seamen , mariners , merchants , mechanicks and , some tradesmen for of some of every of those sorts were too many , of our late church and state , and law reformers composed , should if they would not be at leasure to consider that publique utility and neeessity , do in many cases both by the laws of god nature and nations , sometimes curbe restrain lessen or take away the free use of properties , so patiently and willingly without any mutining endure the rigorous penalties , forfeitures and severities of the laws of war and navigation , and the arbitrary exactions and impositions of their companies , and governours of trade ; and not at all reare the cry of oppression and invasion of their liberties , and yet so kick and wince at the legal and far more easie rules of justice , and may therefore require some search to be made for the fountain and rise of that popular frenzy and distemper , and that so much mistaken late outcry against the writts , and process of arrest , and outlawry , when the arguments which are framed and brought by that vulgar and leveling race of people , do abundantly declare that they have not much troubled themselves with the reading and true understanding of those laws , which they do so labour to scandelize , and the records of the nation who do bear witness of them . in the inquest whereof the late pious martyr king charles , hath pointed out the way unto a more full discovery of their designes , when he did foresee it , as in a declaration published for the better satisfaction of his people , in december . after that the house of commons had made their aforesaid unhappy remonstrance , he did not omit to give them to understand that he feared that a malignant party in that house did go about by discountenancing the present laws , to loosen the bonds of government ; to the end , that all disorder and confusion might breake in upon him . and in his answer to the above mentioned . propositions sent unto him by both houses of parliament the . of june . declared unto them that those that had the conduct of that affair , thought fit to remove a troublesome rub out of their way , viz. ( the law ) to the end they might undermine the very foundation of it . which every day after grew more and more visible , when they being called together to council and advise him , could not by their votes , which they would make as binding and obligatory , as if they were laws made and established by their soveraign , wrest and take from him the militia , or sword wherewith he should protect and defend his people ; took it to be not a little advantagious to their purposes , to ravel and dislocate the method and proceedings of his laws and justice ; by which his throne was established , that by overturning the long approved laws and customs of the kingdom , upon which the best monarchy in the world was built , they might open a passage to let in that gain and anarchy which they aimed at , which being once made known to their emissaries , and so much encouragement given by their members of that which was then untruly called a parliament , who rather then fail of petitions unto them from the sons of zerviah and shimei out of every countrey , city , corporation , and market town , caused printed bills to be affixed upon the posts and corners of the streets in london , whose multitudes of inhabitants in masters , apprentizes , tapsters , and other illiterate and vulgar kind of people could readily afford them good store of such , as had been borne or lived in every county , city , and corporation of england and wales , to give a meeting at a place appointed to some members of parliament , for the framing of petitions unto it ; and thus the hounds being uncoupled and let loose to chase the royal hart , and the presbyterian ministers like huntsmen busied in the ha loo , lo ho , ha loo loo , so ho. whooping and following to cheer and set them on , and busying themselves to remove all things that might hinder the pursuit of their petitions , for the presenting whereof pulpit granado men were employed to procure them to be brought with or or more of the factious on horseback , with the petitions ready printed , or tackt to their hats or hatbands , with swords by their sides : the london porterswere set on to petition against the militia , when they were only told it was against the watermen for carrying trunks and other burdens by water . and a schoolmaster at stamford , was so wickedly ingenious as to make his boyes subscribe a petition to that parliament against episcopacy ▪ as if their parents had actually done it . in the mean time , the diurnals , news books , and seditious pamphlets the stationers : arrowes and artillery were day by day shot to wound him , and incense the people against him ; and some of the parliament men were heard to say , that they could not do their work without them ; and the design was carried on so prosperously , as too many thought their time best of all bestowed , to pull down or take in pieces either all our old laws , or such a part of them , as might not only undermine the frame and constitution of the monarchy , but innovate and introduce so much of their own modells and inventions , as might either directly lead to a republique , or some new devices of anarchy . a book called the pollution of university learning , printed in . marched in the van , together with another book called the observator and his jesuitical principles , quod efficit tale est magis tale , and that the king was singulis major , but universis minor , and those kind of engines , were greatly incouraged in their attempts by a book ; of junius brutus , his vindiciae contra tirannos , translated out of latine into english , to infect the people with treasonable doctrines . and a book intituled maxims vnfolded , that the election of the kings of england ; ought to be by the consent of the people . the royal and politique power in all causes , and over all persons , is properly the parliament the oath of supremacy , binds not in conscience to the king against the parliament , but the pope : and another book written by mr. william prynn , an utter barrister of lincolnes inne ; entituled the soveraigne power of parliaments and kingdoms , printed at london in the year . wherein with heaped quotations , and much learning , and reading the wrong way , he was willing to invite his readers to believe that the court of parliament had a lawful power to question the kings patents , charters , commissions , proclamations , grants , warrants , writts , and commandments , whether they be legal , and to cancell and repeale them that be illegal or mischievous and onerous to the subject , not only without but against his consent . it is lawful for the people submitting themselves to prescribe the king and his successors , what laws they please ; the sheriffs of every county were antiently elected by the freeholders , and had power to raise the militia , that the navy , ammunition , armes , and revenue of the king , though they be in his possession , are the kingdoms ; that kings and their great officers , counsellors , and justices , were at the first created and elected by the people , that the king hath an absolute negative voice in the passing of bills of common right and justice for the publique good , that the parliaments present necessary defensive war is just and lawfull , both in point of law , divinity and conscience , and no treason or rebellion : the parliament hath a right and jurisdiction to impose taxes and contributions upon the subjects , for defence of the king in case of the king his wilfull absence , or arming against them . seconded by a book entituled lex rex , written as believed by one rutherford a scottish divine , printed at london by john field , and published in the year . by the then usurped authority , wherein he falsly endeavoured to maintaine against all the grounds and fundamentals of law and religion : that kings and their families have no calling to the crown ; but only by the people , royalty is not transmitted from father to son , if the people may limit the king , they give him the power , who is the servant of the people , both objectively and subjectively , and is inferiour unto them ; who cannot make away their power , but do retain the fountain power of making a king , that to swear non self preservation , and to swear self murther , is all one : the king is a fiduciary life-renter , not a lord or heritor , the conscience of the people is immediately subordinate to god , not to the king mediatly or immediately , the judges are the immediate vicars of god , not of the king ; the parliament hath more power then the king , the crown is the patrimony of the kingdom , not of him who is king or of his father : the parliament are not judges by derivation from the king : who cannot make or unmake judges inferior judges , are more necessary than a king : parliaments may conveen and judge without a king : are co-ordinate judges with him , not advisers only . subordination of the king to the parliament , and co-ordination are both consistent : the king transgressing in a hainous manner , is under the coaction of law : defensive wars are lawful : and there may be a distinction betwixt the kings person and his royal power . the physical act of taking away the life of offending persons , when commanded by the law of self-defence is no murther . wars raised by the subjects and estates for their own just defence , against the kings bloody emissaries are lawfull : parliament power , is a fountain power above the king : who is but a noble vassal of the kingdom : is not head of the church . the people in some cases may convene without the king : subsidies are the kingdoms due rather then the kings . and thus provided , and the scaling ladders made ready to storm the laws , which were the forts and bulwarks of the king and government , and heretofore made it their business to give help or shelter to the king , the deformers rather then reformers , do hasten one another to be up and doing . and therefore in a pamphlet entituled liberty vindicated against slavery . printed in the year . the author declared that imprisonment for debts , is against the foundamental laws of england . propositions were shortly after made unto that company of monarchy underminers , called the parliament for the laying aside the six clarks in chancery , and the imploying their under clarks at cheaper rates . in the year . mr. john cooke of grayes inne , who sufficiently deserved to be hanged , drawn , and quartered , as he was afterwards as a traytor , in a book dedicated to the most high and most honourable court of parliament , the supreme as he calls it judicatory of the kingdom , saith that the alteration of fundamental laws , as sir edward coke saith , produces many inconveniencies , as in that statute of imprisoning mens bodies for debt . and there must needs be good work in that their sport of pulling down and setting up , when it hath been as truly said as verified , that the kings parliament began in . and continued with some freedom of votes , untill december . from thence it was governed by the city of london and their tumults , propositions , and petitions , unto december . and from thence by the scots and their rebellious league and covenant , unto the month of june . when the presbyterians had the ascendant and predominancy , and that was not unjustly called the apprentises parliament ; and after that sir thomas fairfax his parliament , which was governed by his army , and their addresses , declarations , and proposals , wherein the independant party were superior , and ought to be called the agitators parliament . the king in the mean time , in his great desire of peace with those whose wicked designes never intended it , not making that right use which he otherwise might have done , of the successes which god had given him in the just defence of himself and his loyal subjects , and the laws , liberties , and religion of his people , tired with the treachery of those that too often betrayed , and sold his just advantages , and overpowered with an army of covenanting scots , who came to assist their brother rebells of england , and believing himself to be somthing safe in their oaths and promises , and flying to them for succour , was by a party of them contrary to the laws of god and nations , sold to the english rebells , for two hundred thousand pounds sterling , too great a summe of money to be restored again , as judas did the thirty pence , the wages of his sin for the betraying of our lord and saviour , and by tricks and devices carried prisoner from place to place , untill he was barbarously murthered . and the heire and royal issue driven out of their inheritance , and then every mechanick head was set on worke to frame a new government , in which there were as many diversities of opinions , as there were ignorances and sinister ends , to advance their particular ambitions or advantages , and a mart being kept of whimsies , some being much in love with the balletting box used at venice , others with the rota and mr. harringtons oceana , and all or too many thus busied , sedition and ignorance sat in their triumphal chariots with the laws ▪ learning and religion of the nation like so many captive kings in chains attending , all which did not fully correspond with the votes and expectation of the presbyterians , when as cromwell the g●●at encourager of the independents or fanatick party , then the more numerous , feeling his own strength and having a prospect of a better design of establishing himself , did so delay and trifle with the parliament his masters in their desires of disbanding the armies , as the presbyterian souldiers in the mean time selling their debenturs , the wages of their rebellion and wickedness , at d. or d. a pound , with a long interest , to the independents , who were thereby easily enabled to buy king , queen and princes , the bishops , and dean and chapters , nobility and delinquents lands , as they mis-called them ; and that party being so well gratified , were not afterwards unwilling to lacquey after his hypocrisie , and permit him to frame and make his own instrument and method of a more arbitrary government then our laws permitted , or any of our kings or princes exercised , and to be as a single person protector of all the knaves and fools in england , scotland , ireland and wales , withall their fancied and supposed liberties , which as they used them were but to hunt and chase all that were loyal and honest , and thought they might do any thing to the amorites , moab and amalek , and that all the scripture was contained in gain , being [ as they supposed ] sanctified into a pretence and outward semblance of godliness . in the later end of the year . some thousands of well-affected , as their sedition perswaded them , inhabiting the cities of london and westminster , borough of southwark , and hamlets , supposing the time to smile upon their purposes , did petition that which when the king was murthered was no parliament , that they would consider the many thousands that were ruined by perpetual imprisonment for debt , and provide for their enlargement . in the year . one thomas faldoe of grays-inne esq was so loth to have his conceipts and opinions lag behind , as in a pamphlet entituled , reformation of proceedings at law , published on the behalf of himself and the commonwealth of england , he complained , that the law of property was depressed and useless , by the colour of the statute of imprisonment , and sacrificed to all the birds of prey , even to covetousness the mother of cruelty , in the several offices and instruments of justice . and in the same year came out a representation of divers as they called themselves well-affected persons in or about the city of london , petitioning the parliament , that all tenures in capite , and all inferiour jurisdictions , being great grievances and oppressions , might be taken away , the laws translated into english , the six clarks , head registers , masters of chancery , and the petty-bag , affidavit office , prothonotaries , and all other grand monopolies and patentees , might be abolished , no mans life taken away for felony , unless accompanied with murther ; that the eldest sons in every family might have a double portion in the fathers estate , and the rest be divided amongst the younger children ; that no fines be paid to any cursitor , or upon any original writ , but may be quite abolished ; that no mans person might be imprisoned for debt , but his estate made liable to satisfie the same : it being more suitable to the turkish or heathenish practice , then to christian english professors of the gospel , to rack and grind the bodies of men in prison . at the heels whereof was brought to that assembly at westminster , ( who named themselves a parliament , and to cherish such doings seldom failed by their speaker to give thanks in the name of the house to all petition and declaration-drivers ) a petition of the well-affected in the county of buckingham , said to be a representation of the middle sort of men within the three chilterne hundreds of disborough , burnam and stoke , and part of alesbury hundred , declaring , that they had waited eight years in the pursuance of their just rights and freedom , with which god had invested them and the whole nation , kept from them by arbitrary power and tyrannical factors of the nobility , courtiers , episcopal priests , cheating lawyers , impropriators , patentee men , lords of mannors , and all illegal courts , and other diabolilical interessed parties , and desire that all licences , commissions , &c. and grants from the late king , whose first predecessor was that outlandish bastard william the conqueror , from whence proceeded the original of all their slavery both in tenures , laws , terms , customs , &c. in an outlandish tongue , the lawyers being the chief instruments of their misery , might be abolished ; and protesting against all arbitrary laws , terms , lawyers , impripriators , lords of manors , priviledges , customs , tolls , tithes , going to the terms at westminster , payment of heriots , quit-rents , head-silver , lawyers fees , and the whole norman power , being a burden too intollerable to bear ; did invite all men to enter upon commons , and cut and fell the wood growing thereon , and desired ( which they would not be willing to do if they had been lords of manors , and other the parties struck at ) to go by the golden rule of equity , viz. to do as they would be done by , not to tyrannize over any , or to be tyrannized over . another pamphleteer feared he should be taken to be ill affected to the babe of sedition , if he also should not be doing somewhat , in a modest plea as he terms it , dedicated to the high court of parliament , which he would have to be the supreme authority of the nations , prayed , that there might be an equal commonwealth against monarchy ; wherein there is a lift against the vniversities , colledge lands , tenures , hereditary nobility , church revenues , churches and bells , mercenary lawyers and tithes , with an apology for younger brothers , and desires a restitution of the tenures in gavelkind . in the same year , the lord general fairfax , lieutenant general cromwell , the lord mayor of london , colonel harrison , mr. francis allin , colonel martin , and others , were impowred to place and displace any judges of the courts at westminster , and all officers thereunto belonging , and all sheriffs and justices of peace . mr. john hare being unwilling to stay behind such company , in a pamphlet sent out upon that design , desired , that the norman yoke might be taken off ; and saith , that the norman innovations are destructive to the honour , freedom , and other unquestionable rights of the nation . in the same year , the officers and souldiers in the regiments of colonel scroope , sanders and walton , and the souldiers in the garrisons of arundel , rye and chichester , did petition the lord general fairfax , that the abuses in the courts of justice be reformed , that there be a registring of deeds and contracts , tithes abolished , six clarks in chancery taken away , and their clarks sworn attornies . mr. sadler a lawyer , and a man in such favour with the usurper , as he was by them made one of the judges for the proving of wills and testaments , in his book entituled , the rights of the kingdom , and custom of our ancestors , saith , that the writs of capias as now used were very mischievous , did not lye at the common law in actions of debt ; cites sir edward cokes opinion in sir william herberts case , and declared , that in debt the mirrour of justice did pronounce the outlawry to be a great abuse . in the year . s. d. then an attorney , ( but since his majesties happy restauration and the altering of the scene , knighted and put into several places of honour and trust , ) having convened and gathered together some tides-men , and small understanding clarks and attorneys , that were well inclined to set their watches by cromwells new court-dial , did in order to the regulation of the law , propound a law to be made against fines to be paid upon original writs , for that ( the best reason that they could give against it ) it was against the reason of the fundamental laws of england , which never imposeth any fines but against offenders ; and the like against vtlaries , which were unnecessary , and did tend only to charges and delay ; and that a second summons being served upon a defendant and left at his house , and by the sheriff or his officer retorned upon record , the first summons being made seven days before the day of apparance , in which time the plaintiff may enter his declaration in court , and if no apparance entred within eight days after , then a new summons in the nature of a scire facias to be awarded upon the imparlance roll , to summon him to appear at a certain day to come , when not appearing and pleading within eight days after judgment shall be given by default . mr. john jones of nayoth in the county of brecon , in a book printed and published in the same year , entituled , judges judged out of their own mouths , or the question resolved by magna charta who have been englands enemies , king-seducers , and the peoples destroyers , from king henry the d. to king henry the th . and before and since , stated by sir edward coke late lord chief justice of the court of kings-bench , wherein that mighty cambro-britain in his own opinion doth with as little law as reason charge the judges and professors of the law , with the destruction of honest men whom it should save , and the saving of all those whom it should destroy or punish for unlawful respects and considerations , tending to their own profits and ends : and that by prerogative statutes devised by mercenary lawyers to steal from the people their birth-right , contrary to magna charta , and the common law of england , they are become an intollerable mischief to the commonwealth , and do deserve exemplary punishments ; and cites the said sir edward cokes opinion in his comment upon magna charta , cap. . that the custom of england declared by magna charta doth not extend to the imprisonment of any debtors but the kings . and assisted those his wicked and false rabshakesmes with another little book , called the cry of bloud , dedicated to oliver cromwell , general as he stiled him of the puissant army of the parliament of england , wherein charging the crime of murder , and of the bloud of the righteous abel , as he is almost frantickly pleased to fancy it , upon the process of arrest and outlawry , and that innocent and most necessary way of compelling men to justice , he stileth them a course of sin , and the offices of those who do make them the gift of the devil , and the lawyers liars ; although mr. john cooke of grays-inne , before the devil had entred into him and ingaged him to be a prosecutor of his soveraign , even to the murder of him , did in his book printed in the year . entituled , a vindication of the professors and profession of the law , dedicated to the then parliament , declare , that he was confident that the common lawyers of england are as understanding rational men , as any practisers of any profession whatsoever in the world ; and he durst say , that there are more godly religious lawyers , attorneys and sollicitors in england , then in all that habitable part of the world called christendom . mr. william leach of the middle-temple proposed , that no defendant should be enforced to appear unto any action , before a poenal summons , and a declaration first filed , unless in case of likelihood to depart the land , or to make away his goods ; and in such case , upon an affidavit to be made before a justice of peace by any officer to be arrested . isaac pennington the younger , the son of that man of faction his father , offered in a pamphlet to assert , that the rights , liberties and safety of the people were in themselves , and derivatively in the parliament their substitutes and representatives , and that the people ought well to look to their rectifying right , that it may have its free current . mr. henry robinson in his publick proposals for a cheap and easie distribution of justice , would have a publick country registry for lands , and another for debts , and that in every city , corporation and division in each county , judges may be appointed with an yearly salary . by a petition of many calling themselves a free-people , promoted by john wildman and john lilburne gent. they do require that all the laws , process and inrolments of england be written in english , and a roman or secretary hand . hugh peters , a prompter at a play-house long before he was a my mick preacher and the abuse of the pulpit , having made many a renegado voyage from england to holland , thence to new-england , and from thence in the company of other birds of prey pearching here again in england , was so unwilling not to be as busie in the ruine of his country , as other men of the trinkets and new fangles were , as in his book entituled , endeavours ( as he saith ) aiming at the glory of god , that peace and truth may meet together , undertaketh to prove , that government by succession from father to son was none of gods institution in the first and purest times , that custom hath worn out truth , but we were to enquire for the old and good ways , and christ saith it was not so in the beginning . and in june . in his book entituled , good work for a good magistrate , would have registers to be setled in every parish of all mortgages , alienations , &c. and from thence transmitted to the county or shire-town ; that in every county every hundred do choose three men to be peace-makers for a year , to determine all common controversies without appeal ; wills and testaments to be acknowledged before two next justices , and entred in the parochial registries ; five or seven in every town or hundred to be yearly chosen to determine all debts or strifes , whereof three to give sentence without appeal ; that summons instead of arrests may be left at mens houses , none to distrain for taxes or debts , but the debtors outward doors to be taken away and carried to the town-house , and as many other new doors as shall be set in the place ; every man plead his own cause , and if he think himself too weak , let him have liberty to take a friend or neighbour to plead for him , but no advocates or seriveners to plead for any man ; if any lawyers be continued , let them be allowed and paid by the state ; all suits in london and great cities to be determined in a week . which being done , it was very advisable to burn all the old records , even those in the tower , the monuments of tyranny . and had so in a short time after haled on his design of destroying all the records and memorials of the laws of england , to make way for his new contrivances , as a serjeant at arms of the then miscalled parliament , or one of their mock-majesty mace-bearers , had an express order ( happily diverted by some other affair when it was ready to be put in execution ) to throw all the records remaining in the treasuries at westminster into the river of thames . and the law that it might the better be baited and abused , ( as if no foreigners could ever have occasion to read , understand , or make use of them ) must with its writs , records , process and proceedings , for the time to come be written in english , many of the law-books being in order thereunto , by the factious and greedy avarice of many of the book-sellers and stationers , procured to be mercenarily translated into english , and exposed to the rude eyes and hands of the ignorant , and the little reason that the owners of it do use to have , whereby to make it a ludibrium , and the wonder of their lesser intellect , which might easily happen where they wanted the keys and assistance of other learnings ; and every thing their shallow apprehensions could not reach or fathom , was by them supposed to be norman slavery , antichristian , or idolatry ; the records must no more be written in the long-lasting and durable court and chancery hands , or manner of writing , made out of the old saxon , gothick , and reunick characters , as they were wont to be , and had been for many ages before , but in a secretary hand , not that strong and legible hand heretofore used , but a kind of jack-an-apes hand , composed of antick frisking undistinguishable letters , so written with the side of a pen and small slit , as that scratching rather then writing hath been often seen , not to be able to keep company with the parchment it was wrote upon , the small period of oliver cromwells wickedly usurped dominion . which needless change and novelty , with other the doings of the factious and rebellious , so wrought upon the minds of the ruder sort of the people , to the joy and comfort of those who thought themselves to be specially godly , as the lawyers could not pass in the streets without many reproaches , and not always without the scorn of being asked if they had any latin , by those that did never understand it , or were ever likely or in a capacity to do it . and pride the drayman , turned by an accursed rebellion into a colonel , could say , that he hoped shortly to see , or it would never be well untill the lawyers gowns were like the scottish colours hung up in westminster hall . so great was his and his partisans malice and hatred to those laws , which once they seemed to be so much in love with , professed and covenanted to maintain . in the same year that so remarkable thomas elsliot , calling himself a member of jesus christ , and of the english common-wealth , a free-born person of the english nation , esquire at arms , conquerour of the gentlemen of the long robe , now or late the satan of the commonwealth , in his book entituled the true mariner , with his metaphorical and hieroglifical ship demonstrating the way to paradice , dedicated to oliver cromwell , saith the prothonotaries and registers in the courts of justice are immense foxes , the attorneys and clarks kindle-coals , the bum-bailiffs , serjeants at mace and marshals-men , serpents , toads , rats and mice . james stocall colonel of a regiment of fifteen hundred men in the isle of jersey , proposed , that if a man be overburdened with debts and imprisoned , and his estate not able to pay , he ought if he come into court and affirm it upon his oath , to be freed of all his creditors , so as he do leave them what he hath whereby to satisfie every creditor according to the priority of every mans debt . shortly after followed proposals by some chancery clarks , aiming to hurt their masters the six clarks in chancery , and make what benefit they could for themselves , that twelve ancient practising clarks to be chosen two out of every office , by the major votes of the clarks , and presented to the lord keeper , lord chancellor , or lords commissioners of the great seal , and out of them to be chosen some overseers or superintendents , and to have an annual stipend ; the subpoena office to be nulled , and those writs to be made by the chancery clarks ; the affidavit office to be taken away , lawyers fees to be ascertained , and none to take any more fee in that term for any particular cause , and no matters to be referred to masters of chancery but accompts . charles george cock would have vtlaries abolished , and no arrest , and that there be only a summons without a writ or attaching the person , and if twice summoned let him be proceeded against upon his goods . in the year . gerrard winstanley published his opinion , that the kings old laws cannot govern a free commonwealth , and it is not possible for a people to be too free ; and in a book entituled , the law of freedom , or true magistracy restored , complaineth , that tolls in the market are a burden , that the gentry do oppress the common people , live idly upon their labours , and carry away all the comfort and livelihood of the earth ; that the powers of lords of manors do remain still over their brethren , requiring fines and heriots , beating them off the free use of their commons ; the commoners have cast out the king , therefore they are in equity free from the slavery of that lordly power , and that it will blast the power of the parliament and army to see the government of the commonwealth to be built upon the kingly laws and principles ; and that all slaveries and oppressions which have been brought upon mankind , have been by kings , lords of manors , lawyers , landlords & divines , who ought to be cast out ; and prayeth that there may be a judge in every shire , peace-makers in every town , overseers and a band of souldiers attending them . another proposeth , that instead of an arrest a summons might be sufficient , and if no apparance judgment and execution to pass . in the year . in a book entituled , a supply to a draught of a systeme proposed by a committee for the regulation of the law , it was desired , that none be arrested , attached , molested or troubled by any original or other writ . and thus whilst too many addle-headed reformers were labouring to establish wickedness by a law or authority , and the major part of the members of the miscalled parliament having as they thought rear'd their designs to that height and nearness of accomplishment , that they took themselves to be officers of righteousness , elected and chosen to do wonderfull things , that gods will might be done on earth as it was in heaven , that every one might be holy , and the pots , yea the bells upon the horses , as they were pleased to phrase it , might be holiness unto the lord , and that god might reign and be all in all ; they ( did in that hurry and fit of zeal , without any solid or rectified reason , cause or consideration , without the hearing of any defences to be made against their supposed to be infallible judgments , ( vote that the high court of chancery , and all the other courts at westminster-hall , should be dissolved and no more made use of ; and a member of that society , and a burgess for the town or university of cambridge , who might have done well to have disswaded his election until he had learned more wit , was so willing to have the civil laws here used to be destroyed , or set packing with the common laws , as he could not forbear crying out , mr. speaker , one word i beseech you , for jesus christ let the civil law also be put down . but that not well according with the sentiments and purposes of cromwell their man of sin , who had designed to trepan them to deliver up their fancied parliamentary government , and to bless god for the yoke and instrument of his own making , whereby he as a single person had with many curbing contrivances a future absolute lawless and unlimited power and authority , he did for the better preserving of the justice of the nation , for the administration whereof he intended to make himself an allowance of two hundred thousand pound , per annum , and well understood to be as necessary in a common-wealth as it had been in the best of monarchies , and some other his reasons of state , whilst those dreamers of godly reformations had upon his summons and command refused to dissolve or come out of their opinionated senate or parliament-house , cause some of his janisaries or red-coat souldiers to pull them out of the house , and lock up the doors . and their ungodly and particular interests having thus enticed the vulgar and less considerate part of the people , too many of them made all the hast they could to pull in pieces the frame , and the noble ever to be admired constitution of our government , where they could be sure of hopes of gain , and losing nothing by it , and joyning with some lawyers of the smaller size that wanted practice , and expected imployments by a renverse of our old laws and setting up new , the finews and foundations of our laws were endeavoured to be cut , monarchy , justice and our laws enforced to dwell in the tents of mesech and kedar , and lying amongst the pots , and the wolves made the guardians of the sheep and lambs ; the tenth commandment in the decalogue was bid to stand off , and not trouble it self with their business , until they could be at more leisure to talk with it or understand it ; every one was rooting up the foundations , and like those that are too busie in breaking bulk , or taking the spoil of a distressed wreckt ship , the wild boar brake into the vineyard , and the swine into the garden and bed of spices , unto whom the rose of sharon and the lilly of the vallys , the charming hyacinth and tulips , and gloriously adorned other flowers , and the filth of a dunghill were in their grunting capricious sense of an equal if so much value and estimation . and mr. john dury a scotish minister , who had before in the reign of king charles the martyr by good approbation of divers of our bishops and learned men of this nation , and many learned and worthy of the reformed churches beyond the seas , endeavoured a better agreement betwixt the lutheran and calvinists , had no time or labour spare to bring his countrymen and their mad brethren of england into their wits again , but for some preferment had or promised was so well contented to ring the changes with them , as he could not let such things pass without some blessing or grace said unto them , or a box of what he took to be a more special balm of gilead , bestowed upon them for the ease and comfort of such a small number as should be troubled with tender and puling consciences , as he did in his re-proposals licensed by mr. joseph caryl , declare , that god by an extraordinary way of providence had shaken the foundations of this kingdom , and turned in into a commonwealth , believed that the just judgment of god had brought it upon those who without any respect to tender consciences , did press the ensnaring former oaths of allegiance and supremacy , and the covenant , and laid them as stumbling-blocks before their brethren ; conceived that the requiring a general promise from subjects , to perform an undeniable and unquestionable duty to the commonwealth wherein they live , by those that have the power of affording or refusing civil protection , is not in the same nature with those former oaths and subscriptions : and that he should pray and intercede for such as are under the trouble of their own spirits , and fear of sinning , that the many years experience of their quiet behaviour and faithfull services may be accepted towards a● just degree of security and assurance for future peaceableness . in the same year mr. 〈◊〉 gray , a prisoner in the compter of woodstreet in london for the not payment of tithes , would perswade as many as would be so foolish as to believe him , that tithes were a curse to all nations but cana●n , and a vexation to all people but the hebrews . in the year . mr. john rogers , once a minister of the church of england , but afterwards a fiery zealot of rebellion , by his book fuller of railing then truth or reason , entituled , sagrir , or doomsday drawing nigh with thunder and lightning , in an alarm for new laws and the peoples liberties , from the norman and babylonian yokes , wherein he calling the lawyers tyrants and locusts , saith , that it is high time and more then time for the people to know their rights , priviledges and freedom , that all that are past children and fools should call for them , and that it concerns all to write , print , publish and declare against the norman tyranny of laws and lawyers , and that he doth it with as much assurance and confidence as if he had a halter about his neck , and were to endure the penalty of the locrian laws for failing in what he should alledge against them ; that the lawyers are antichrists state army of locusts , and that the people have been robbed of their rights to this day by the income of corrupt laws and lawyers , the true rise of their interest , innes of court , and trades by sin ; that none are suffered to plead but lawyers , or such as are brought up in their courts and innes , in their trade , cheats and tricks , to sell the law at a large rate to chapmen called their clients ; and would make it to be no small grievance , that ▪ men are imprisoned for debt , every man may not plead his own cause , and that there are not county judicatories to hinder the great charges put upon the nation to prosecute their suits at london and westminster . mr ▪ boone an attorney , or something of a lawyer , with his name wrapt up in an anagram , in his book entituled examen legum angliae , published in the year . whose reading of good authors mentioned in his quotations might have better informed him , and made him of another opinion , will not allow of any of our laws that do not agree with the mosaical , or were not derived from them , or of any which were made or allowed of in the times of popery , but saith , that the law of england as it is now in use is a departure from the law of god , and a taking of a law from heathens and idolaters ; that the whole body of popery is in a manner comprehended in littletons book so much commended by sir edward coke , and that the old statutes made in the affirmance of the common law , and the books and entries whereof he makes mention , are stuffed with all manner of impieties & errors , that magna charta & charta forestae do not appear to be any acts of parliament , although they be so called ; that chiefly therein was intended the advancement of the romish power in a tyrannical government ; that the statutes of marlebridge , westminster the first , and the rest of the old statutes said to be declaratory of the common law , do savour of the power of antichrist , and do contain in them manifold impieties and superstitions ; that the statute of e. . concerning ecclesiastical judges , and the statute made in e. . concerning prohibitions , clarks convict , prelates , spiritual courts , excommunications , abjurations , power of the ordinary fees of the church , superstitious houses , monasteries , parsons , parsonages , containing sixteen chapters , are nothing else but popery , and the advancement thereof ; and the like may be said of e. . ca. , , , , , . concerning lapses of benefices , clarks convict , ordinaries , &c. that such causes as do chiefly require remedy in a court of equity , may easily be determined by judges in courts of law ; common recoveries for assurance of lands , are nothing but a pack of lies ; that the theory of the common law , and some of the statutes now in force , do contain matters repugnant to the law of god ; that most of the old statutes , as well such as are said to be in affirmance of the common law , as others introductory to new laws , do contain in them great oppressions and wrong to the people , and ought to be amended ; that the general execution of the laws , as it is now practised , is an oppression to the whole nation ; that trivial and impertinent suits are brought out of the countries to westminster , and thereby all inferiour courts are destroyed : and proposed a publick registry to be in every county of all entails , mortgages and statutes , that before any cause or action ●e entred in any court , or come before the judges , peace he offered by the plaintiffs , and that wise men be appointed to take up controversies ; that all the tithes and glebe lands with other things called church-duties , may be sold , and a competent means provided for the ministers of the gospel . in a book entituled englands safety in the laws supremacy , and published in the year it was amongst other things required as a law including the people● liberties , that no man be imprisoned for debt , but that all estates real and personal be liable for discharge of debts . in the same year in a pamphlet entituled , the humble desires of a free subject , it was desired , that not any of the free people of the three nations and territories thereunto belonging , should not be molested or imprisoned , or have any violence offered to their persons , but shall have full power and liberty to seek for their redress unto the law , and the courts of justice , according to the ancient constitutions of the laws of the three nations . in another owned by one mr. james freez , entituled , the outcry and just appeal of the enslaved people of england , to be delivered from the insupportable oppression of lawless yokes of misery , it complains , that thousands of people are ruined and robbed in their estates , liberties and lives , by arrests and outlaries , and prayeth that the writs of capias may be abolished , and the imprisoned set free , which would work the total downfall of satans throne of injustice , cruelty and oppression , even of the four fairs kept in westminster-hall by the ingrossers of pretended justice , where and by whom men are daily bought and sold in their estates , rights and liberties . some of the inhabitants of hull did petition , that the laws by which the common-wealth is to be governed , may be those holy , just and righteous laws of the great and wise god ; and declaring , that the nobility are the pillars and buttresses of monarchy , and citadels of pride and tyranny , ought to be only during life ; that the divines , the lawyers , and hereditary nobility , are irreconcilable antagonists to a free-state ; adviseth an agrarian law , that the proportion of lands be stinted , and a rotation of all offices and imployments , that those which are capable may tast of rule , as well as subjection . in a book called a rod for the lawyers , they are called the grand robbers and deceivers of the nation , greedily devouring many millions of the peoples money ; and it alledgeth , that there are in england & wales of judges , lawyers , officers , clarks , attorneys , and solicitors , above , ( a quarter of that number , at the largest reckoning , being not to be found of them ) which admitting that each of them do get l. per annum , ( very many of them not getting l. per annum , many not l. per annum , and many not l. per annum , or so much as the rag-gatherers in london-streets do , who take it to be an ill week that yields them not s. ) it will saith that calculator amount unto seven millions and an half per annum , besides the charges of riding to and from london ; whereas if ever there were such a number to be proved , there are greater numbers of carpenters and smiths , who do yearly gain as much as the smaller sort of the law profession do by their as necessary labours . in a declaration and proclamation of the army ( as they called themselves ) of god , published in the same year , they did declare and resolve , by the help of god that there should be liberty of conscience , but not of sin ; godly laws to be enthroned , but not the jews ; judges to be in every city , but not imposed ; prison doors should be set open , to let out debtors to labour towards the payment of their debts ; and look'd upon it as the voice of god calling upon them , and giving them an opportunity ; and therefore desiring assistance in so great an enterprize , by as many persons of note and ability as god hath made willing and able , together with themselves , to put in sufficient security for the performance thereof , did intreat them to send in their names to mr. livewell chapman , book-seller in popes-head-alley by the exchange , who hath promised to keep them secret untill by sober and frequent meetings the matters may be digested fit to be presented to the parliament and chief officers of the army . where if the propositions do prove acceptable , there will be a sum of l. ready towards performance of the same . and in the plea called the armies plea it is alledged , that the peoples safety is the chief soveraignty of all laws , statutes , acts and ordinances , covenants , engagements , promises , subscriptions , vows , oaths , and all manner of obligations and expressions thereof , and are only binding to the publique safety , and not to the persons of the governours or forms of government , but with reference thereunto , and as principles of truth and right reason brought to light by the late parliament . and one being willing to come on as fast as he could , and keep company with those goodly assertions , saith , that it is not lopping the branches , or cutting off the top branch of monarchy , that will deliver a nation from bondage , unless the axe be laid to the root thereof , to the evil root of bitterness whence springs all our misery , to the root of every usurping and domineering interest , whether in things civil or divine . the number of freeholders being much increased , hath had a natural and strong tendency towards a commonwealth ; no government can be fix'd in this nation , but according to the ballance of land ; that prince that is not able neither by his own or the publique revenue , in some measure to counterpoise , if not over-ballance the greater part of the people , must necessarily be tenant at will. another in his arguments and fancied reasons against the office and title of kingship , published in the year aforesaid , saith , that the office of a king makes way for an act of resumption , and the unsetling of mens estates ; that the abolishing of episcopacy and peerage , and the establishing of liberty for tender consciences , were not the ground of the wars , for nothing appeared at the first but the militia , the negative voice , and the removing of evil counsel , the other things were brought into the quarrel in the progress of the contest , by an higher hand of providence then mans purpose . one of the same company and school of contrivances desired publickly , that no man should be imprisoned for debt , except such as are doubted to be running away , and then not above three days , and to be maintained by the plaintiff at s. a day in the mean time . in a book stiled the good old cause dressed in its primitive lustre , said to have been written by r. fitz-brian , it was insinuated , that the distempers of the nation being so great , as they could not admit of a redress and conserve still their old frame things must unavoidably wheel about and fix themselves upon another basis ; providence united the honest party of the victorious army , so as it was resolved that the poor who had nothing to pay their debts , should be freed from the bondage of a perpetual confinement ; the corruption of the laws were become at once both the shame and impoverishment of the nation , and some expedient was to be had for the freeing of it from so horrid a cheat ; divine providence did by degrees point out a necessity of the change of government , and kingship being laid aside as unnecessary , chargable and dangerous , it was devolved into a commonwealth : it being a certain rule , that corrupt and degenerate states cannot be perfectly healed and regulated , but by stepping into those forms which are the farthest distant from that wherein they were corrupted . backed by an anonymous author , who being desirous to try an experiment , as well projected as that of the cutting the moon into stars , to make the greater light , and save the expence and trouble of candles ; and to contrive a way for the ruining at once of many of our fundamental laws root and branch , doth in a book entituled a chaos , or frame of a government by way of a republick , printed by the said livewel chapman , endeavour a creation of new laws out of a confusion of his own making , wherein as a well-willer to the publique , as he stiles himself , but a greater to all at home , he doth in order and respect ( which there will be no reason to believe ) to the lawyers profit , and to the peoples enjoyment of magna charta , propound national , provincial , subprovincial and parochial registries , to which courts all causes of civil concernment are to be reduced ; all suits in law or equity to be determined in six months , upon a penalty to the judges , and loss of cause to the client , whether plaintiff or defendant , if guilty of delay ; the judges in chancery to sit de die in diem , the itinerant judges to determine all causes that shall be tryed before them , and a term of a month to be at westminster-hall after every circuit , for the determination of matters of law , with rules to be given for the jurisdiction of each registerial court ; a national registry to be appointed at westminster , to consist of a register and six clarks assistants or deputies , which may have each as many writing and examining clarks under him as the business shall require ; each county of england to be one entire province , and those allotted to the jurisdiction of the said several six clarks and deputies , viz. so many counties as are comprised within the several circuits of the judges ; in every shire-town a provincial register , and he to have two clarks assistants , who shall as to the imployment divide the province , only yorkshire is to have three clarks assistants , who are to divide according to the ridings ; subprovincial registers to depend upon the provincial , and to have one clark assistant ; every parish , or two where one is too little , to have one register and a clark assistant ; every person having estates in two or more counties , shall enter their estates and annual values in the national registry of each circuit ; and all that have any claim or right in possession or reversion of lands of inheritance of the yearly value of l. or upwards , shall enter it accordingly , and of the yearly value of l. and under l. either in possession or remainder , are to enter it with the provincial register ; all persons having estates above the clear yearly value of l. and under l. are to enter them in the registry in the hundred or wapentake of the province , and all not exceeding l. per annum , to be entred in the parochial registry ; all debts exceeding l. to be entred with the national registry , all above l. and not exceeding l. with the provincial registry , all above l. and not exceeding l. with the subprovincial registry , and all under l. with the parochial register where the debtor inhabiteth , or his estate lyeth : and when such entries are perfected , the national register shall within days certifie it unto the provincial , who shall within days certifie it to the subprovincial , and he within days to the parochial register : and where several claims under several titles shall be made unto one and the same thing , the register shall give notice thereof to the several inhabitants and tenants thereof ; the parochial register shall likewise certifie to the subprovincial , the subprovincial to the provincial , and the provincial to the national registry ; the seal of the national registry shall be the great seal of england , to be kept by the register and his six clarks , and nothing to be sealed but in the presence of the national register , and two of his clarks assistants ; each several province shall have his peculiar seal , whereon shall be the arms or cognisance of the province , city or corporation wherein the registry is , and shall be in the custody of the particular register or his assistants ; and in like manner for the subprovincial and parochial registries . the several registers where no double claim is entred , shall give certisicates under their seals of any entries which shall be desired ; claims not entred within three months , unless in case of infancy , death , or being beyond sea , shall be an absolute bar ; entry to be made within three months after the establishing of the registries ; certificates to be made under seal to any that shall desire it , which shall be a sufficient warrant for the recovery thereof , without any further trouble to the creditor then to make his claim thereunto . all manner of bargains and contracts , w●ere any estate of inheritance , mortgage or lease shall be made , or any right transferred from one to another , all covenants , conditions , considerations , and times of payment in the presence of the several parties , shall be made before the several registers , certified under his seal , delivered to the creditor , and counterparts to the other parties . and entries made of payments and discharges of bargains personally by the parties in the presence of two known witnesses , unless where the parties bargaining shall be sufficiently known to the register or his deputy ; all marriages to be entred in the parochial register , the covenants and conditions of the marriage to be entred and certified under the seal of the register , who is also to enter the christening of every child , deaths and burials of all persons , all wills and testaments ; the hiring and wages of servants to be entred in the parochial registries , and certificates under seal given thereof ; the fees for entring any estate of inheritance in the national registry s. per page , for the two first pages , and s. for every page more ; for all leases , mortgages , jointures , dowers or debts , s. for the first page , and s. for the following pages , including the fees for the certificates ; for all entries of inheritances in fee in the provincial registry , s. for the two first pages , and s. for every page more ; for all leases , mortgages , jointures , dowers or debts , s. d. for the first page , and s. for every following page , certificates included ; for the entry of every inheritance in fee in the subprovincial registry , s. d. for the first page , and s. per page for every page after ; and for all leases , mortgages , jointures , dowers or debts , s. for the first page , and s. d. for every following page ; for the entries of inheritances in fee in every parochial registry , s. for the first page , and s. d. for every page more ; and for all leases , mortgages , jointures , dowers or debts , s. d. for the first page , and s. for every following page : and in case any of the entries of debts , leases , mortgages , jointures or dowers , shall not exceed lines registerially wr●t in the parochial registry , the fee thereof shall be but s. the fees for the certificates excepted ; the fees for entry and certificate of every birth , christening , death , burial , in the parochial registry , if it exceed not lines , to be only d. as also for the retainer of any servant or apprentice ; but if it shall exceed , the● the fees to be according as was allotted per page . no money shall be recoverable upon any bargains or contracts whatsoever , unless the same be entred in the registries as aforesaid , within : he times limited ; the fee of the seal of the national registry , in all cases of settlement of any estate , lease , mortgage , jointure or dower , to be l. in all cases of debt , not exceeding l. the fee to be s. otherwise l. the fee of every provincial seal in the cases aforesaid s. in all cases of debt s. and in all cases of debt , mortgages , &c. to be s. d. in the national registry th . parts of the seal shall be to the commonwealth , and a th . to the register , and his assistants and clarks , for all entries of each two first pages of every particular entry , and for all the following pages an th . part only ; in each provincial registry th . parts of the fees for the entries , and for seals also , to be to the commonwealth , and the th . to the register , his assistants and clarks ; in the subprovincial registry parts of of the entries and seals to be to the commonwealth , and the to the register ; in the parochial registry parts of of the seal to the commonwealth , and the of all the fees of entries to be to the register , his clarks and deputies . every clark , assistant or deputy of the national registry , shall have six sworn attorneys or messengers , whose care shall be to transmit his several certificates to the several registries of the provinces , solicit the causes in the said registerial court , and have for every cause in every court-day , besides all charges , s. d. and no more ; every clark assistant in each provincial registry shall have attorneys or messengers , who are to officiate as in the national registry , and have for every cause in which any of them shall be imployed s. for fee and no more , besides charges and expences ; each subprovincial shall have attorneys , who shall do the same work , and for every court day shall have for fee in every cause s. besides all charges ; each parochial registry shall have attorneys , ( which according to the number of parishes in england and wales , will make almost attorneys , besides their clarks , which with solicitors and their clarks added unto them , will more then three times exceed the number of attorneys , solicitors and clarks , if truly accompted , now in being ) whose fee shall be for every court day s. besides charges , and shall do the like as is before directed ; every attorney shall be punished for fraud or neglect , and make satisfaction to the client for all damages ; and if not able to do it , shall be dismissed of his place , another chosen , and the client restored to his former condition ; the clarks assistants to be chosen by the respective registers , upon security to be given , and they are to give directions unto them , and be responsal for them ; each clark assistant in the provincial registry shall make choice of one attorney , and the register of two . the judges in the several parish courts shall be the register , the minister , and the constable and churchwardens for the time being , whereof in all hearings two to be present , with the register or his deputy ; the several courts to be kept every thursday fortnight , and all matters to be brought to hearing the d. court day , and to hold pleas of all debts not exceeding l. principal , and all estates under l. per annum , lying in the same parish ; judges learned in the law to be appointed by parliament to attend the national registerial court ; judges be appointed to attend every provincial registerial court , where one judge at least is to be present , with the register and one clark assistant , when all matters are to be ●eard ; every month shall be a court provincial , upon the tuesday in every week , the subprovincial court every friday weeks , and the judges to be the register and his assistant , and the minister of the parish . all summons to be granted upon motion of the party or his attorney , ( giving security to defray the charges of the party to be s●mmoned , if his action he not good , or cause just ) by the respective registers , their clarks assistants or deputies , in writing under their hands , unto which of apparance shall be given either in person or by attorney , the cause is to proceed ; but if no apparance shall be given , a second summons is to be granted under the seal of the register , to which if no apparance shall be given , judgment shall be given the second day of apparance , and entred in the court registry ; and if agreement intervene not before the next court day , and be entred with the register , execution shall be granted , and the registers seal put thereon , not to be reversed or any appeal admitted . two vacations in the whole year to be in t● national registry , as to the trying of causes , the one from the first of december to the th . of february , and from the last day of may to the first day of september . but that chaos-maker or good man , if any one could find any cause or reason to call him so , or some of his partisans , when they shall have remembred it themselves , or have heard it from others , that the noble and innocent earl of strafford was by false witnesses and accusations ; remote and improbable inferences , strained constructions , and never like to happen consequences , hunted to death upon a supposition of subverting the laws , when if it had been either possible or true , it could upon an accumulation of all ●his pretended crimes have extended no farther then an endeavour to subvert one of our fundamental laws , may be their own judges , convict and justly condemn themselves for unpardonable faults , in seeking to subvert so many of our fundamental laws uno ictu , with one stroke , and at once , which they themselves ●ave sworn to maintain and defend . notwithstanding all which oliver cromwell did so well understa●d his own interest and single-personship . chap. xvii . that neither oliver cromwell or his son richard , the second mock protector or little highness , did conceive it to be reasonable , or had any intention to deliver up the justice of the nation to those ignorant giddy and ever changing kind of refermations . and that the administration of justice was a great end , and one of the principal parts of government , and remembred that the men of westminster ( of which he was too great a member and director ) calling themselves after the murther of the king , a parliament , did the th . day of february declare , that they were fully resolved to maintain , and should and would uphold ; preserve and keep the fundamental laws of this nation , for and concerning the preservation of the lives , properties , and liberties of the people , with all things incident thereunto , and required all judges , justices , sheriffs , officers and ministers of justice to proceed in their respective places and offices accordingly ; and did the th . day of mar●h then next following , declare , that our laws being duly executed , are the most just , free , and equal of any other laws in the world , and that they were very sensible of the excellency , great antiquity and equality of them , and that the liberty , property , and peace of the subjects were fully preserved by them , did so little believe it to be for the good and honor of the nation to hearken or yeild unto the product of those wind-mil , giddy , and vertiginous brains ; or by the perswasion of some idle and ridiculous pamphlets , written and contrived by such as would for their own advantages plow up the laws and reasonable customes of the kingdom , to settle and set up a weather-cock government ridiculous to all other nations , as he did in his speech to that which he called his parliament upon his dissolution of them the th . day of september . declare , that in every government there must be somewhat fundamental , somewhat like a magna charta that should be unalterable , that some things are fundamentals , which he should deal plainly with them may not be parted with , but were to be delivered over to posterity , else every succeeding parliament would be disputing to change and alter the government , and we shall be as often brought into confusion as we have parliaments ; and he and his parliaments in the time of his hypocritical government did so little relish the taking away of the process of arrest and utlary , as they ordered only prisoners to be discharged out of prison , if they made oath that they were not worth five pounds after their debts paid , and undertake to pay their debts when they should be better enabled , which to procure their liberty , made many lustily to forswear themselves , and had no great cause to be in love with their pretended reformations , when the fiery mr. john jones of nayoth was after his abusing and rayling upon our laws found guilty of deceits , and committed by them a prisoner to the fleet. and when in the year . or beginning of the next ensuing , by an act of parliament had for the relief of creditors , constituted a committee for london and the suburbs thereof to sit at salters-hall , and several other committees in all the counties of england and wales , and impowred them to be the only judges , though not sworn , to hear and determine matters of debt , and escape to fine for breach of trust and concealments , imprison , set at liberty , remaund to prison , adjudge to the pillory , or house of correction , grant , lease , or sell the estates of the prisoners , were to admit of no legal forms , but proceed in a summary way , and to be responsible to none but the parliament , and sell dead prisoners estates as well as if they were living , whether the lands were entailed or not . it was upon complaint of some prisoners of note and worth , alledged and offered to be proved that one of those kind of judges at salters-hall having two brothers practising before that committee , the one as a solicitor , and the other as a councellor at law , would bring his party with him , whisper unto his fellow-judges , arise from the bench , and go and sit by the clark , and make the orders as he pleased and liked those his doings so well , as he was heard to say he did not doubt but to make his place worth l. per annum unto him before he had done with it , and might be in good hopes of it , when besides those his ungodly extraordinaries , large salaries were allowed to him and his brethren of that committee for their sons and agents , and the gain which they and their confederates might have by the sale , or indirect purchase thereof in other mens names , that committee were to have distributed amongst them two pence in the pound upon the sale of any prisoners lands or estates . the pretending gospel-improvers in south-wales had shut up most of the churches , and gathered in the mean time one hundred & fifty thousand pounds into their private purses , and therefore both oliver , and richard cromwel , & their councel & parliaments did only receive those unquiet innovators petitions , and as they did in the determining of what should be incumbrances fit to be put into a publick registry , or the taking away of tythes make a shew of intending great matters , when they only hung them upon long delay 's , and an everlasting deliberation , never to be brought to any conclusion . and our laws having thus long fought with beasts like st. paul at ephesus , might by his majesties happy restauration have given them no small assurance that they should have deserved some rest and tranquility ; but it seems as the wrongs done unto them were unrepented , so were their patience and sufferings to be prolonged . and the professors of our , or any other good laws should not be so contemptible , when that blessed apostle could be no less than a lawyer , when he sate and had been educated at the feet of gamaliel , and was afterwards by his apostolical office , and great endowments in all manner of learning , such a darling and beloved of god almighty , as he had in his life-time the inexpressible joyes and wonders of the third heaven communicated unto him , when they were before , and that time , and long after in better ages of such an esteem and usefulness amongst the wiser and better sort of man-kind , as they were justly called sacerdotes justitiae , ministers that sacrificed for the people at the altars of justice , their houses were as oracles , to which they came for councel and advice , and were accounted to be laudabile genus hominum , a praise-worthy kind of men , and being secular men , did in campo justitiae tanquam athletae militare , as their champions labour to obtain justice for their clients ; but those abusers of our laws and lawyers were too much in love with their projects to forsake them , and like . chap. xviii . what occasioned the continuance of the former projects , and groundless complaints against our laws since his majesties happy restauration . the snakes had but cast their skins , either for that the fancies which had brooded in the heads of these troublers of our israel had as lesae imagi●nationes usually do in men opprest with melancholly , stuck so fast , and brought them to such a habit or custom as they could not easily remove them , or had a desire to maintain and uphold an heretofore contracted or espoused error , or to add wrongs to wrongs , least they whom they had so much abused should after seek to bring them under the censure and justice of those laws which they had so much injured , or were vexed that they had so unexpectedly lost their prey , and the opportunities of building up again their bethel , where their calves were well fed & worshipped for their seditious bleatings , and were the more emboldned by his majesties over-easie pardoning the wickedest rebellion that ever was hatched in hell , and permitting all but some few not only to enjoy all their former real estates , and all their personal estates , which had been gotten by blood , and the rapine and depraedation of all the honest people in his three kingdoms , but to creep into most of the profitable employments of the kingdoms of england and ireland , ( which would better have been managed by his more honest and loyal subjects ) eat the childrens bread , and get all that could be any wayes gained or cozened from them . and too many of them have grown so impudent as to offer to palliate their wickedness by a base and senceless equivocation to cover their woolvish doings by the putting on of sheeps cloathing , and make as many as could be so mad to believe it , that they were always for the late king the martyr , and loved and honoured him ; as if those their great armies that fought against him in the bloudy battels at edge-hill , marston-moor , and naseby , took his towns , castles , and garrisons , imprisoned and murdered him , were some invisible fairies phantasms , or spectres ; and became so much elated in the success which they met with , by getting as much or more by counterfeiting of loyalty after their rebellion , as they did before in their acting and height of it as they hoped that they had now an opportunity put into their hands of accomplishing their wickedly designed works of reformation preparative to a republique , some of their party being at this time , so more then they should be confident of it as they keep in the expectation of their good old-cause as they do dreamingly call it , the conveyances and grants which they lately had of the usurpers of the kings , queens , bishops , deans and chapters , nobility and loyal gentries lands , as any other evidences of their estates , and do think it to be no bad exchange or bargain too , give double or treble the value of some of oliver cromwell's gold or silver-coyn as precious reliques to put them in mind of that great stork , who if he had lived longer , would have taught the frogs what they were to expect of him ; & too many of that tribe or silly perswasions have lately been emboldned publickly to offer to maintain the lawfulness of those their ungodliest of all wars , and might suppose themselves to be in no bad condition , when they were not like the gibeonites after they had deceived joshua with their mouldy bread , rent and tottered garments , with old shooes ▪ put to be ho●ers of wood , and drawers of water for the house of god ; but whilst they were inwardly in their hearts and endeavours the greatest enemies of it , did eat of the ●at of the flock , and enrich themselves with the most profitable offices and preferments of the kingdom , and not only deceive the kings loyal subjects of their blessing due to the birth-right of their allegiance , and a priviledge inheritable to prosecute their actions and suites at the common law , but of the benefit of their antient , good , and equitable laws , which is another part of their inheritance , and did therein worse then jacob did by his elder brother esau , who did not loose all , but had a mess of pottage for it . or did in the pursuance of the former evil designes of themselves or their phantastical well-willers think it necessary to persecute our laws by false suggestions , out-cries , scandals , and clamours , as boyes have used to do in their hunting of squirrels by noise and shoutings , and to speed as well therein as they , or many of the rebellious rout did in their designes against episcopacy , & the militia , and to pull in pieces the royal and ever to be approved monarchical government . or some of the stationers having some of those pamphlet projects and squibs against monarchy and regal government lying upon their hands unsold , did to put them off in some approaching or sitting parliaments of his majesty , cause a new date or year of our lord to be instead of that which was before ( some of that society or company being so egregiously wicked , as many books have been sent abroad in a masquerade in six or seven several disguizes , or new dresses and titles to abuse the people and cozen them of their money ; and a primerhinder & a stationer may be named if an undertaken , to be proved information do not prove to be otherwise , that have caused the pamphlet that carried the device of summons , and banishing arrests and out-laries which had been long before published , to be re-published or printed , which like some paper-kite with a lanthorn & candle in the taile or end of it had not long before made the men of novelty and ignorance stand at a gaze at it . and it hath since his majesties happy restauration been often observed , that too many of that trade and faction have been very dull in the preferring as they c●ll it , or offering to sale any books which concerned the vindication of any of his majesties rights , or the real good of his subjects , but have been nimble enough to promote the vent or putting off any books which tended to faction , or the unhinging of the government . or the witchcraft of their rebellion had with their ignorance so captivated their understandings ( if ever they were masters of any that tended to good ) as to make them to be like too many of the laplanders , who are said to bequeath their devils , or evil spirits to their children , or any who should succeed them , more willing then they should be , to transmit their sins and unquietness of spirit unto all that would make any title to their rude and indigested opinions . howsoever from some or all of these causes , not a few of the former wicked and never to be justified principles , ignorant and unwarrantable endeavours and complaints have since monarchical government , and our laws and liberties were so happily restored , sprung up again ; and no sooner was our david brought back over jordan , but many a railing , cursing , and rebellious shimei that had done more then cast stones against him and his royal father , made haste , and came with the men of juda and loyal party to meet him , and as if they had not remembred all the mischiefs which they had done unto him , his brethren , royal father , family , and good people , pretended that they had been greatly instrumental in it , and having gain'd a very large and extensive act of general pardon and oblivion , ( which as to treason , murder , felony , faction , and rebellion , the loyal party needed not ) an act of parliament for confirmation of what their abusive courts of justice had done in matters of judicature betwixt party and party in the inter regnum , and times of usurpation ; and another act of parliament to make honest & free many parents on earth from adultery or fornication , and legitimate and un-bastar'd ▪ many of their children begotten in a wrong way of marriage solemnized in despite of the laws and our church of england , before a justice of peace , not in a church , but an hall , parler , or chamber , where that kind of magistrate was a knight , or gentleman , or many times in a shop when he was a trades-man , which the kings faithful subjects abhorred ; and some of them having warmed themselves by the farming of the kings revenue and those grand and ever to be detested artifices of advance and defalcation , which have so much cankred , decayed , and ruined it ; and others that li●ed their consciences with plundrings and sequestrations , and committee , ungodly emoluments did fall again to their former trade and engines of subverting our laws , and turning the justice of the kingdom into their abortive projects , and new-found politiques , and hoped in the end to recompence the loss of their possesion of the lands of the king , queen , prince , nobility , gentry , bishops , dean and chapters , which they having purchased at an easie rate , were taken from them , and enforced to be restored ; and their hopes of gaining the lands and endowments of the universities and colledges , which by a failing of providers , and some mistakes as they wickedly thought of divine dispensations , or some errors of their new lights they had unexpectedly lost . and therefore summoned & got together their mis-apprehensions and invectives against that antient , very legal & rational custom of fines to be pay'd upon original writs where the debt or damage exceeded forty pounds , which from the year . unto his majesties happy return unto his throne , had by their rebellions and ungrounded clamors against the payment of them , to make a mis●lead people the more willing and able to continue and contribute to a war against their consciences and eternal happiness been taken away , or laid to sleep . in order whereunto in a book entituled the wants of england printed in the year . it was among other things offered to the consideration of both houses of parliament , that according to the law of god and other christian states , christian clemency , gentleness and mercy , and the antient laws and customes of this kingdom , no person be for any new debt cast in prison , but be left at liberty to work out his debt by industry . in the year . a petition was exhibited to the king and both houses of parliament , that in actions of debt there may be no arrest or imprisonment of the debtors body , but a summons made at his house , or hung at his door , and for want of an appearance his goods and real estate to be seized , and the like in the year . and in the same year a bill for an act of parliament was with great importunity desired for the registring of all incumbrances of land , and of all debts and ingagements , then which nothing could have more undone the greatest part of an impoverished nobility and gentry by the late wars , and taxes nor any thing more have bankrupted citizens and trades-men , whose estates do consist in a great deal more in credit and opinion , than in reality and substance . but the promoters of those innovations who endeavoured to pull in pieces our wellestablished laws concerning arrests and outlaries , did in those their attempts speed no better then balaak the king of moab did by sending for balaam to curse the children of israel , when notwithstanding his erecting of several altars , and all his solicitations and promisses of rewards , he could not hinder him from blessing instead of cursing them , for the wisdom of the king and parliament , and his privy councel did think it to be more for the good of the people to suspend their desires and devises , until the king might understand that there could be any reason , cause , or ground to alter or forsake the old fundamental laws , so for many ages well approved to comply with their humors & ill designes , but being willing to give what reasonable content he could to that small complaining part of the people without pre●judice & damage to the universality & greater number of his subjects , did as the fittest expedient , and all that the law could permit , and his reason and soveraignty perswade him to do for the allaying that distemper which had seised upon a sort of ignorant , seditious , & unquiet spirited people whom no reason can satisfie , but would set up their new devices which are never like to perform their promises and intendments . and needed not ( as touching the taking away of the process of arrest & utlary ) to have troubled his majesty and parliament , and themselves and others with such unwholsom and improbable remedies for that which their ignorance and vain imaginations only told them were grievances , but should rather have acquiesced in a due consideration that his majesty did not hold it to be agreeable to justice to abolish the process of arrest or outlary , or to change or take away the fundamental lawes which established or allowed of those antient and legal kindes of law proccedings as grant in the year of our lord . by the advice of his privy councel his commission for the relief of poor and distressed prisoners , under the great seal of england to the arch-bishop of canterbury , bishops of london , winchester , rochester , lord mayor of london for the time being , judges and justices of the courts of kings bench , master of the rolls judges of the court of common pleas , barons of the exchequer , chancellor of the dutchy of lancaster , masters of requests , and chancery , attorney and sollicitor-general , and attorney of the dutchy of lancaster , deans of st. paul , & westminster , lieutenant of the tower of london , bishops , chancellors , with the advocats of the court of the arch bishops of canterbury , and bishop of london for th● time being , &c. and divers other commissioners therein named , to call before them such prisoners and their creditors in and upon actions of debt , gase , trespasses , trover , detinue , or other personal actions , judgements and executions whatsoever thereupon , and to treat for compositions and agreements , ( some of the judges of the court out of which such prisoners have been committed to be privy to such compositions and agreements ) to the end that the said prisoners night be relieved , and have such reasonable years , dayes and times of payment for such debts and damages as they shall not be presently able to satisfie , and with such security for payment thereof , as in equity and good conscience , having respect to the ability of the prisoners , and charge of wife and children , and other incidents to pious cases considered : and if any creditor should refuse to appear before them , the commissioners were impowred to punish them , and take such order for their appearance as they should think meet , and to use all lawful wayes to make them take such reasonable compositions as to any three or more of them should be thought meet . and his majesty therein declared , that his meaning was to be aiding and assisting with his grace and fa●vour to the misery and calamity of such as be truly poor and distressed ; and not unto such as lye in prison rather of wilfulness and obstinacy , and out of a resolution to retain large and ample estates to themselves , and therefore straightly charged the said commissioners to be very vigilant and circumspect therein ; and did in the said commission mention that queen elizabeth did upon the supplication of the prisoners in the prisons of the fleet , and kings bench in the eight and twentieth year of her reigne authorize certain commissioners under the great seal of england for the ordering and compounding of the controversies and causes between the distressed prisoners and their creditors , and such others by whom tbey were detained prisoners , or in execution , and contined the said commission nntil her decease . and that king james being informed that certain clauses in the said commission were derogatory to the common ▪ laws of england , and that by colour of the said commission which was intended for the charitable relief of poor , miserable , and distressed prisoners , certain refractory and obstinate debtors which rather wanted will then meanes to satisfie their just debes , took occasion to molest and trouble their creditors , did to prevent all occasions of inconveniencies to his loving subjects , especially such as tended to the breach of his laws , forbear for many years to renew the said commission ; and finding that his forbearance had wrought a good effect by discouraging obstinate and wilful debtors that sought nothing more then evasions to avoid the payment of their just debts , so also that for want of that , or some other charitable course for the relief of such as were truly and indeed poor , distressed , and miserable , and wanted meanes to satisfie their creditors , it had been occasion to pester and fill his prisons with the bodies of such persons whose punishment could no way ava●l their creditors , but rather was an hindrance to the satisfaction of their debts , for that during the time of their restraint they were no wayes able to go about or attend their lawful business , but must of force consume themselves and that little that they had miserably and in prison , did by his commission under the great seal of england in the sixteenth year of his reigne , by the advice of the then lord chan●cellor of england , and also of divers of his principal judges of his courts at westminster , authorize the commissioners therein named to proceed according to the tenor of the said commission for the relief of the said poor prisoners in the said prisons ; and afterwards being informed that his said commission had not taken that good effect which was expected , renewed the said commission , and thereby prescribed and directed such a moderate course as that neither the insolence of wilful and obstinate debtors should be thereby incouraged to the derogation of his laws , nor yet his grace and clemency be wanting unto such to whom it should be meet to extend the same , did upon the humble suite of the distressed prisoners in the prisons of the marshalsea and other prisons in and about the cities of london and westminster , and the places near adjoyning to the same , whose cases were as much to be commiserated and lamented , as the said prisoners in the said prisons of the kings bench , and the fleet , by another commission under the great seal of england in the two and twentieth year of his reigne authorize certain commissioners therein named for the ordering and compounding of the causes of the distressed prisoners in the prisons within the places aforesaid ; and that his majesties royal father did by two several commissions under the great seal of england , the one bearing date in the fourth year of his reigne , and the other in the sixth , impower divers persons therein named , to the same or the like purpose . nevertheless the good old cause ( as they are pleased to mis●name it ) with all its hypocritical tricks of state must not by any meanes be abandoned , but they which did so much adore that empusa or witch called the publique faith which ( like the golden calf made by the idolatrous children of israel ) helped them to great store of money ▪ plate , and rings , to furnish out and maintain a rebellion , could not now forbear to be as violent as they could to pull down the ever to be re●spected and honoured better publiqe faith and justice of the nation , and disturb his majesty & his subordinate judges & magistrates in the administration thereof , and therefore some synon or trojan horse was of necessity to be made use of or introduced under a colour of publique good , or some stratagem or mine prepared to accomplish that by cunning and circumvention which by suit or force of law , reason , and arguments they could not before be able to obtain , and for that had as they thought a pattern or way cut or chalked out by the before-mentioned s. d. and some of his levelling clerks and attornies associating with him in their aforesaid proposals presented to the committee for regulation of the laws in the year ▪ wherein they alledged that what they had proposed was not that the writ of capias should be taken away first , but humbly conceived that it would be better by finding out nearer and cheaper wayes to bring the old road to be neglected ▪ then to deprive the suitors of the old before they can have experience of the new ; and it was only proposed by way of supplement not to take away the antient course of proceeding● by way of capias , and ●●igent if the case shall require it . chap. xix . that the proceedings at the common law desired by the new way of a peremptory summons , or the old by writs of summons , pone , and distringas , or writs of capias at the plaintiffs pleasure are not consistent or agreeable one with the other , and that laws being to be binding are to be certain and positive , not arbitrary . but such a state essay , bill of comprehension , or rather contradiction , whether the antient legal and rational usage and custome of proceedings in the law by writs of summons , pone and distress to be legaly executed by sheriffs where the defendant hath a visible and certain estate , which for expedition of justice , have by alteration of times , increase of trade , and a necessity of law and reason not been so much used as heretofore it was , and is not yet forbidden by any act of parliament , or rule of law , and the process of capias and arrest which ▪ for many ages past have not only been allowed and approved by this nation , but the greatest ( if not all ) of the civilized part of mankind as a principal incident essential and necessary sine qua● non in the distribution of justice where the defendant hath not a visible estate to secure him from the sheriffs return of a nihil habet is a fugitive , or likely to be such a one , or is not to be found , and hath nothing but his body to be a pledg or security , that he will judicio sis●i & judicatum solvere , or that the process of exigent in order to an u●●ary , which without 〈…〉 causing the u●●ary it self , do offer a lesser violence to the person of a defendant then the writ of capias doth , can by any rule of 〈◊〉 reason be exchanged for peremptory summons and sei●ures , or can be for the good of the people , to cause them to tear and tire one another 〈◊〉 abundance of charges delayes , and 〈◊〉 in a cirque or circle of law contentions , who will certainly when they shall find the sad effects or event of it not think themselves well used to be decayed , or inticed to abandon their own good laws for such new and troublesom devices ▪ which may be to as little avail as to renounce skilful , able , and honest physitians to drive a trade with ignorant empericks and mountebanks when they are not sick , or need them , and may time enough believe that such a novel way of peremptory summons hath so many symptomes or markes of evil upon it , and so easily discernable as their gaine by it will be no more then to receive a scorpion instead of a fish , or to have co●quintid● put into their pottage pot ; and they that are so fond of it , and willing to pro●uce such a mischief rather then a blessing for their fellow-subjects might have forecasted that evils are most commonly according to corrupt nature better welcom , and more likely to receive entertainment then good , and do by their novelty or correspondence with bad humors , designes , our interests too often seize upon or inveagle the greatest and less prudential part of the people when cheapness or a pretence of expedition shall be some of the perswaders unto that which can arrive to no better a construction or event then to make the law-maker and soveraigne advising with his two houses of parliament so incertain of the ●equel or product hereof as to make one part of the law rep●al another at the pleasure of every particular man , and to enact it as adiaphorous , or indifferent this way or that way , whe● a very long course of time and experience● and the approbation of so many laws and ages past do record and witness the excellency of that which some busie 〈◊〉 would have to be exchanged for 〈…〉 and seminary of not to be expressed inconveniences and mischiefs , and such a device or fancied alteration cannot with our a prophenity 〈…〉 it perswade ▪ the most sanguine and easily credulous that it can be equally and fully as good as the other , or render it to be indifferent , or give any absolute or infallible assurance ▪ that those likely hopes will ever bring them to their promised success , and if it be not to be ranked amongst the indifferents , must be either better then the former antient courses which none have yet experimented , or worse , and then not at all to be imposed upon the people . for laws being r●cti praeceptiones & pr●●i depulsiones alwayes intended by god and good men to advance that which is good , and suppress that which is bad , aequum ab iniquo & licitum ab illicito separare , and to discern and divide betwixt good and evil , and said to be laws a ligando , and to be properly no laws if not obligatory and binding , are to be certain and positive , not arbitrary as unto those which ought to obey them , and as much as right reason will permit immutable , especially if deduced from the dictates of nature , as that of the preserving the authority of courts of justice and their administration of it , are to those that seek for help in the maintaining or recovery of just rights and properties , but not to be ambiguous in certain latitudinarian or indifferent , for although there may be many who would be well enough content to be judges of their own causes , and the executioners of their own decrees , or if that would not be allowed , would be 〈…〉 to hale men to justice , or by open clamours cry harow as the people of normandy were antiently said to have done to their duke rollo when they cryed to him for justice who was wont never to fail them , which after a long process of time gave us the original of the word hue and cry yet much in use amongst us in matters of felony . and the like was in the early days of the world not unusual amongst other nations in their seeking to their kings and princes for redress of wrongs before the more happy way of establishing a fixed rule and course by courts of justice . yet those their unfitting desires for such an arbitrary act and indifferent law ought to be allayed , and the more safe and sure paths of justice kept according to the patterns and direction of the best of presidents , for that god himself the wisest , greatest , and best of legislators when he gave his righteous laws to his people of israel , and commanded that a neighbours rayment taken for a pledge should be restored unto him before the sun go down for his covering to sleep in , or the command not to 〈…〉 the sentence of the judge under no less penalty then the loss of life , ( from whence the reason and equity for every man to be obedient to the authority of courts of justice in their legal process may deduce its original ) was not left as a matter indifferent but absolute and positive . where the statute of westminster 〈…〉 which giveth a plaintiff his election to ●ake his execution upon a recovery of a debt by writ of fieri facias , or elegit , the plaintiff taking out his elegit , 〈…〉 enter it as he ought upon record , for that 〈◊〉 should be then debarred of any other remedy against the person of the defendant by capias 〈◊〉 a●iendu●● , & a man cannot by law have two writs of scire 〈◊〉 at once in a common persons case , whereby to have damages twice recovered against him . after an elegit , although the sheriff return that he hath neither lands or goods , the plaintiff shall not have an execution against the body , a capias ad satisfaciendum doth not lie after a fieri facias , until a nulla bona returned , nor a fieri facias or elegit after imprisonment of the defendants body . a writ of annuity purchased pending another , was abated where two brought writs of quare impedit one against the other returnable at one and the same day , the one was discontinued , and they pleaded upon the other , in the case between bery and heard in the seventh year of the reign of king charles the martyr , it was in the court of kings bench adjudged , that where a man had his election to seek his remedy by the commou law , or by the statute of glocester that gave an action of wast● , he could not do it by the one way and the other , for our laws and courts of justice would never allow a plaintiff to have two actions or remedies for one and the same thing at the same time , but were so careful to hinder it , as they suffered discontinuance of process and pleas in abatements where one action was brought depending another for the same matter : and bracton saith , that where a man hath an action depending , and bringeth another for the same thing , cadit breve posterius , the later is to be quashed ; agreeable whereunto at this day in chancery where a man hath an action depending at the common law , and seeks relief in chancery upon the same account , he is put to make his election in which court he will proceed . and therefore if such an arbitrary act of parliament should be made to give the plaintiffs their election to proceed by the way of the new contrived way of peremptory summons , the former wayes of summons , pone , and distrainings , or capias not being prohibited , the proceeding by process of peremptory summons ought to be entred in a court of record , and entred may be more prejudicial to the plaintiffs then they expected , for if they cannot resort or return again to the former better wayes of proceedings , they may find cause enough to repent of their being so fond of a new way , when the old will appear to have been much better , which to reverse or discontinue cannot be , for the interest of the king or his people , when it shall have no better reason or foundation for it . for if the proposers could give unto themselves or any of their fellow subjects any assurance that it will be probably for their good and benefit , yet if the king , who is supreme and superiour to all the judges in his dominions , were but a subordinate judge , he would as the civil law declareth , transgress the rules of justice and right reason , if he should follow opinionem probabilem relicta & rejecta probabiliori , an opinion that is but probable , when there is an opinion to the contrary more probable ; and s. d. and his then confederates might have considered , that a process against the goods and chattcls of a defendant , is of a different nature from that which is against his body , that duo contradictoria non sint nec possunt esse simul vera , contradictions neither do or can at one and the same time agree ; and that practica sunt speculativis praeferenda , what is in speculation of a possibility not at all experimented , is to give place to that which with an universal or major part of a consent hath been long practised . chap. xxi . that it will not be for the interest of the king or his subjects to give way to that design which may open a passage to other innovations and designes as much if not more inconvenient and prejudicial . for that all his good people by the sad and inexpressible calamities and miseries which they have lately endured by the wars and tumults unjustly raised against thc king and his laws , are not now to learn what a deep dyed hypocrisie and pretences for reformation would have , or to believe the evil consequences which have risen from a too much yielding to those popular humors , which as that royal martyr hath in his solitudes and sufferings declared , served to give life and strength to the almost infinite activity of those men who studied with all diligence and policy to improve their innovating designes , & how dangerous the permitting of innovations would be , & how careful all princes and wise men have heretofore been to avoid them ; so that if there were nothing else to make the world out of love with them , the never to be satisfied inquietude of many of that sort of people in the matter of religion and church-government , and the swearing , liking , and shortly after disliking and hating the solemn league and covenant , the by too many as it may be feared intended standing rule of rebellion , and their unfixedness in every thing but their unwearied malice and ill designes against monarchy and the present government , do and will abundantly proclaim that whatever hath been condiscended unto , ( and by that a measure may be taken of the future in giving them a liberty to play the fools with the sacred scriptures , ) hath but like the thirst , and alwayes craving of an hydropick sick person , increased and provoked a desire of having more . wherefore they that built upon such wicked principles of overturning the state and regal government are if they had any reason , or were ever likely to have any for their demands to be content to be denyed until they shall have renounced those pernicious ends and dangerous tenents and positions , they began their works and deeds of darkness withall , and shall have proved that justice ought to have no sword to defend and protect her self and others , that courts of justice can be to any purpose without a certain power , constraining & punishing authority , that the process of arrest and utlary are not incidents thereof , and to be necessary attendants thereupon , that the eternal and almighty law giver did not allow of that which the greeks & romans those great ingrossers of wisdom , after the many very many commotions of their people for their more severe way of enforcing the paymcnt of debts , performance of contracts , & preservation of the publick faith , and one man unto another , which tully held to be so very necessary , as he was of opinion , that nulla res vehementius rempublicam continet quam fides , that nothing more concerns a common-wealth then the keeping of faith & credit , & therefore adviseth it by all meanes to be preserved and kept , have acknowledged to be the best and most contenting expedient for an obedience to judges and courts of justice , and the civil magistrates , and that all the essaies of an indulgence to liberty made use of by some other nations could never yet so far prevail as to make the most of the civilized nations of the world not to continue and make use of it , when time and a long usage have upon so great and undeniable grounds of right reason adjudged the process of arrest and of utlary also in case of reiterated contempts to be necessary not only to trade & commerce , but to the supplying of mens necessities or occasions , or the borrowing of money upon the pledge or pawn of the body , or liberty , and it hath through the greatest part of the world been ab omnibus , & semper , & ubique in praxi & observatione . et cum consuetudo sit optima legum interpres & observantia cum praxi subsecuta , when custome and long and constant experienced practices have followed the process of arrest and utlary may certainly deserve an approbation , which to alter , or take away , or turn out of the course or channel in which it hath so long and happily ran , can never answer the ends proposed , or be valid and sufficient to perswade his majesty and his parliament to suffer so essential and great a part of the justice and happiness of his kingdom to be sullied and exposed to all the designs , fancies and mistakes of every one , who by dislocating good and antient constitutions , would furnish out their hopes of procuring new offices or imployments , and deliver it up as a prisoner to all the knavery and folly of every one who shall be either willing to deceive , or hath an ignorance and credulity easie to be deceived , especially when he shall thereby give opportunities and advantages to the rich to oppress the poor , and such as are in a weak or sinking condition of estate , put the lamb under the merciless paws of the bear or lion , snbject every mans credit by which he lived , thrived , and was snpported , to the domineering and tyrannical humours , pretences , designs and cruelties of usurers , brokers , or stony-hearted creditors , who upon the advantage of some bargain , contract , or rigour of law , would rather ruine men and their wives , children and families , then give a little time of respite by a christian patience and forbearance . nor is it to be expected that his majesty would be willing to kindle and continue contentions , assist the knavish contrivances , malice or revenge of such as shall seek to enrich themselves by working upon the fears or necessities of men indebted . and disparage the wisdom of former princes , parliaments , and ages , and his own authority , to grant an alteration of so profitable and well approved constitutions and customs , in order to the gratification of no body knoweth whom , why , or for what , or what is designed to be the effect of such alterations , by those who by a wicked combination with other innovators , may by a choice of severally managing the grand design and first intention of changing the government , make it their business to promote this as a part of it , and an inset to the other designes and desires of the rest of the promoters of that which they called the good old cause , when it never deserved to be so accounted : and a warwickshire rebel , and gentleman of a good estate and quality , before he was one of the murderers of his majesties royal father , was after that horrid fact committed , heard publickly to say in the presence of a witness whose testimony is unquestionable , that he thanked god that he had lived to see the ruine of monarchy , for it had been his design and endeavour for eight and thirty years then last past , ever since he came from geneva ; and another of that wicked party was not ashamed to say , that they fought not for religion , but estates ; and hath so sadly as he hath understood the secret and restless machinations of that kind of people , and that his blessed father suffering multitudes of sorrows , and troubles , and a martyrdom because he would not sacrifice the laws of the kingdom , and liberties of his people to an arbitrary power of his murderers , had reason enough to back and fortifie his resolution , when he declared that he w●uld study to satisfie his parliament and people , but would never for fear or flattery gratifie any faction how potent soever , for that were to nourish the disease , and oppress the body . est enim virtus constans & perpetuum quid quod justitia appellatur & quod perversis & deprevat●s hominum moribus & consuetudinibus nec potest , nec debet unquam mutari . finis . notes, typically marginal, from the original text notes for div a -e judges . rot. parl. . h. . m. . . e. . cap. . . h. . cap. . . e. . cap. . . h. . ca. . fleta . lib. cap. . . e. . cap. . bracton . lib. . de corona . cap. . notes for div a -e clem. . de jud. gail . . obss . . l. ejus sect . si quis ad municip . . r . in rot process & judic contra le duc . d' ireland & autres . selden dissert . ad fletam ca. . ro : parl . h , . m. & ab inde usque . trin. . h. . coram ▪ rege . king james his speech in the star chamber . notes for div a -e numb . . v. , , . levit. . v. . reg. . . & . proverbs . . . and . mat. . v. . . . . . . sigonius de judiciis , cap. . . livy lib. . livy lib. . . plutarch in vita julii caesaris . tacit. annales lib. . mat. . . selden di●sert ad fletam , ▪ & . in legibus inae . . in legibus inae . . spel. gloss. in voce ball . & in verb capital . . lamb. sax. laws . lamb. sax. laws . ib. . ex chron. jo. brampton in legibus canuti . §. . vide spelmans glos. in voce carkanū . selden . janus anglorum . lambert saxon laws . ibid. . & . ex chronico lichfieldensi . cap. . spelmans gloss . in verbo friborge . . ll. gulielmi conquestor . in leg . h. . cap. . lindenbrog . glos . in verbo pulsare . in leg . h. . cap. . and in capital . car. & lodovic . imp. lib. . . goldastus tom. . imperial . constitut. . glanvil in proaemio . lib. . cap. . & . ibid. lib. . cap. . bracton lib. . de exceptionibus . . bracton . lib. . cap. . , , and . bract. l. . de exceptionibus cap. . §. . bracton . lib. . cap. . § . fleta . lib. . cap. . bracton . lib. . de warrant . cap. . sect . . bracton . lib. . de assisa . vltunae . presentationis cap. . sect . . bracton de exceptionibus . . h. . cap. . vossius lib. . devariis glossem in appendic . . spelmans glossar● in verbo . attachiare . skeneus indice ad leges scoticas . . h. . cap. . register . . h. . cap. . bracton lib. . cap. . ● . h. . cap. . . e. . cap. . . . e. . cap. . register . britton cap. . tit . attachment . and cap. . tit . debt . tit. attachment . and debt ▪ . fleta , lib. . cap. , , , & . ibidem lib. . cap. . sect , . . fleta lib. . cap. . sect . . . e. . fleta lib. . de maliciis vicecom . obviam . cap. . mirrour of justice . register . . . e. . register ▪ . e. . corain . rege ▪ ro●i . statute of laborers . e. . lib. assis. . ed. ● . . br. conusans . . assis. . brook tit . execution . coke l. . relat . sir william herberts case . ed. . cap. . ro. part . . e. . bracton lib. . cap. . oldendor pius in definit . actionum . . & selden , de synedriis in prefat . & . & . bracton . lib. . cap. . §. . westminster cap. . & f. n. b. coke . relat . beechers case . e. . . e. . cap. . . e. . cap. . r. . cap. . & . rs. parl . . r. . m. , , & . r . . cap. . . h. . ●a . . . h. . ca. . . h. . ca. . . h. . ca. . . h. . cap. . . h. . cap. . . h. . cap. . . e. . cap. . . e. . cap. . . eliz. cap. . . eliz. cap. . . el●z . cap. . ibidem . cap. . . eliz. cap. . . jac. cap. . . car. . trin. . e. , in communi banco & in aliis antiq . record & rotulis ejusdem cur. 〈◊〉 . oldendorpius de definit . actionum . . . goldastus constitutiones imperial . . cap. . spelman glossar . in verbo hinfare . jo. koppen . in decision questionum in germania qu. . §. . . . & qu. . § . & . cromerus lib. . de polonia . commentar ▪ de russia . laws of geneva printed at london , . molin . in consuetud . paris . tit . . gl . . num. . bibliotheque o● thresor . du droit . du france . tit . arrests . . gonzale de suarez . de pas as part . tom. . decret . uladis●ai regis hungariae anno. . art. . edicts . & arrests . de savoy . an . laws of genoa printed at milan . . laws of new-england printed at london . . purchas pilgrimage lib. . notes for div a -e deut. . v. . & . reg. . v. . & . matth. . v. . gellius noct . attic. livy . plutarch in vita luculli & solonis dionisius halicar . lib. . ll. longobard tit . . §. . , . ll. wisigothorum in liudenbrogio l. . cap. . fletcher de republica moscoviae . quenstadt de sepultur . veter . valer. maxim. l . cap. . & covarruvias de variorum resolut . goldastus constitut. imperial . philip albert orthen de regali conducendi jure , cap. . , . impress . norimbergae anno . skeneus reg. majest . & craig . de feudis . ll. canuti §. . ll. edgari . & . ll. canuti & . ll. edwardi confessor . bracton de corona cap. . stamford lib. . cap. . tit . forfeiture . westminster . c. . notes for div a -e rot. parl. & petitions in parl. e. . charles george cock essay of christian government in anno . notes for div a -e stat. of acton burnel e. . notes for div a -e juxta gl. in l. . & c. de advocat . divers . judic . exod. . v. . & . d●ut . . v. , , . ll. alamannorum in lindenbrogio . ll. wisigothorum lib. , §. . ll. longobard . tit . . §. . & . edictum theodorici regis , , . ll. frisonum tit . . & in additamen . sapient ▪ ulmari . ll. bajuvariorum §. ll. wisigothorum lib. . tit . . ll. longobard tit . . §. . ll ▪ baivar . ti● . . §. . , & . constitut. theodoric . in goldasto §. . ll. longobardorum tit . . §. . ll. burgundionum §. . & . ll. bajuvariorum tit . . §. . purchas pilgrimage tom. . pryns historical collections in the reigns of king john , h. . & e. . rot. pat. e. . intus . notes for div a -e bracton lib. . de actionibus ca. . fleta lib. . ca. . §. , . fleta . bronkhorst tit . reg. juris , & commentar . ad loc . bracton lib. . ca. . grotius de jure belli lib. . ca. . scottish records in the tower of london , whilst they were there imprisoned by oliver cromwel , & parl. james the sixth in anno . john coppen in rangensdorf in decis . quaestion . . butrigarius in tract . de renunciation . genesis . genesis ca. . genesis ca. . sigonius de judiciis lib. . cap. . bracton lib. . de exceptionibus ca. . . notes for div a -e exodus . , . bracton lib. . ca. . coke . part . institutes . verstegans antiquities ca. . stamfords pleas of the crown . oldendorpius in diffinit . actionum . sam. ca. . v. . dugdales . part . monastic . , . & blounts nomolexic in verbo frodmortel . spelman glossar . in diatriba de comitib . spelmans glossar . in verbo legalis . bacons historical discourse of the government of england . psalm . ursinus cathechisme , & majer upon the ● . commandment . laws of war. h. . ca. coke . part . institutes . eliz. ca. . sigonius de repub. athen . lib. . ca. . rous. archeologia attica lib. ca. . notes for div a -e plutarch . in vita solonis . plutarch . in vita luculli . notes for div a -e livi dec. . lib. . livy lib ▪ . . dionis . halicarnassaeus lib. . livii decad. . lib. . pomponius de origine juris lib. . §. . isidorus . orig . sigonius de judiciis lib. . ca. de in jus vocatione aulus gellius attic . noct . lib. . ca. . cujacius lib. . ca. . gothofredus in fragmen . tabularum . sigonius de repub. athen . lib. . de judiciis . gothofredus in fragmen . . tabul . gellius lib. . livii decad. . lib. . sigonius & a. gellius attic. noct . livii lib. . . lib. . . pomponius lib. . de origine juris . livii lib. . . livii lib. . , . livii lib. . , & . livii lib. . . livii lib. . . & plutarch in vita camilli . livii lib. . . livii lib. . , . livii lib. . . lib. . . lib. . . livii lib. . . livii lib. . . livii lib. . . plutarch . in vita camilli . livii lib. . . ibid. : livii lib. . ] . livy lib. . . lib. . . livius in . edit . apud francofurt ad moenum anno . p. . notes for div a -e sigonius de antiquo jure roman . . joannes sarius zamoscus de roman . ant. augustinus de s. c rom. bodin lib. de repub. dionis . halicar . lib. , & . bodin de repub ; paulus manutius de legibus romanis . livy lib. . . livy lib. ● ▪ . plutarch . in vita scipiouis africani . livy lib. . . tacit. annal . cicero lib. . tusc. quaest . & strabo lib. . cicero lib. . de legibus . ammianus marcellinus lib. . quintilian lib. . ca. . ritterhusius commentar . ad . tabul . cl . . gothofr●dus ad tabul . de in jus 〈◊〉 ▪ peregrinus janninius tract . de citat . real . lib. . ca. . ab §. . ad . & lib. . ca. . notes for div a -e e. . ca. . e. . ca. . the oath of a freeman of london , and acts of parliament for confirmation of their liberties . in archivis in albo tur●i london , & in recept . thesaurat . scaccarii post e. . pas . e. . london rot . . h. . ca. . h. . ca. . h. . ca. . trin. . eliz . rot . . in banco regis . old book of entries tit . false imprisonment fol. . welwade sea-laws . . e. . ca. . petitions parl. e. . rot. parl. . e. . rot. parl. . e. h. . ca. . h. . & h. . ca. . inter petitiones parl. h. . n. . cokes . part . institutes , & . posthuma grotii in epistola quadam . plowdens comment . , , & . ibid. , & . cokes . report . . part , & . cokes . relat . case del fines . eliz. ca. . e. . ca. . e . ca. . coke comment . super magna chart. e. . ca. . petition of right in car. primi . vide act of common councel . cokes . reports doctor fosters case . cokes . reports . . & . h. . ca. . rot. parl. r. . notes for div a -e coke in prefat ' . report . fortescue de laudibus legum angliae . cokes . relat in prefat . notes for div a -e bracton lib. . ca. . genesis . v. , & . sir edward coke in mag. chart. , , . register . rot. pat . e. . part . asser menevensis de alfredi rebus gestis . ll. inae ca. . ll. alured cap. . ● . ll. inae . ca. . mirrour of justice cap. . §. . and cap. . §. . and articles upon the statute of westud . . mirrour of justice ca. . §. . spelmans glossar ' in verbo justicia & eire . ll. alured cap. . notes for div a -e exact collection of the kings speeches & declarations . ibidem . prynns soveraigne power of paliarments . rutherfords lex rex . heugh peters good work for a good magistrate . mr. jo. dury's re-proposals . mr. john rogers sagrir . boons examen legum angliae . ca. , , , , , , , . declaration of the army in anno . notes for div a -e declaration of parliament feb. . declaration of the parliament of england march expressing the grounds of their setling the present government in the way of a free-state . cromwel's speech to his parliament upon his dissolution of them the th . day of september , . remonstrance of the prisoners for debts to the parliament concerning the injustice of the committee fitting at salters-hall in london for relief of creditors and prisoners . the distressed condition of the inhabitants of south-wales . linwood in constitutionibus othoboni . notes for div a -e josh : , calvins's case in cokes reports , and lord ellesmeres post nati mic : e. . . shefferus history of lapland , cap : . proposals of s. d. and divers atorneys of the court of common pleas to the committee for the regulation of the laws may . notes for div a -e exod. . v. . deut. . . e. . ca. . h. . . h. . , . e. . . e. . br. . pas. e. . . jones reports , . bracton lib. . c. . zeiglerus dicastice sive de judicum officio conclus . . §. , , , notes for div a -e cic. offic. l. . ff . de legibus , l. . l. . ff . de reg. jur. tob. paurmester de jurisdict . lib. . ca. . num . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , § . in his soliloquies upon the propositions . varsevicus de legato . the art of rhetoric, with a discourse of the laws of england by thomas hobbes of malmesbury. art of rhetoric hobbes, thomas, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing h estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the art of rhetoric, with a discourse of the laws of england by thomas hobbes of malmesbury. art of rhetoric hobbes, thomas, - . [ ], , p. printed for william crooke ..., london : . "a dialogue between a phylosopher and a student, of the common-laws of england" has separate collation. "the art of rhetorick plainly set forth, with pertinent examples" (p. [ ]- ) has special t.p. reproduction of original in british library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng rhetoric -- early works to . oratory -- early works to . law -- great britain -- history. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion the art of rhetoric , with a discourse of the laws of england . by thomas hobbes of malmesbury . dent vmbrae tenuem divi & sine pondere terram , spirantesque crocos & in urnâ perpetuum ver . london , printed for william crooke at the green dragon without temple-bar , . to the reader . altho these pieces may appear fully to express their own real intrinsic value , as bearing the image and inscription of that great man mr. hobbes ; yet since common usage has rendred a preface to a book as necessary as a porch to a church , and that in all things some ceremonies cannot be avoided , mode and custom in this point is dutifully to be obeyed . that they are genuine , credible testimony might be produced ; did not the peculiar fineness of thought and expression , and a constant undaunted resolution of maintaining his own opinions sufficiently ascertain their author . besides which , they are now publish'd from his own true copies , an advantage which some of his works have wanted . the first of them , being an abridgement containing the most useful part of aristotle's rhetoric , was written some thirty years since . mr. hobbes in his book of humane nature had already describ'd man , with an exactness almost equal to the original draught of nature ; and in his elements of law , laid down the constitution of government , and shewn by what arm'd reason it is maintain'd . and having demonstrated in the state of nature , the primitive art of fighting to be the only medium whereby men procur'd their ends ; did in this design to shew what power in societies has succeeded to reign in its stead . i mean the art of speaking , which by use of common places of probability , and knowledge in the manners and passions of mankind , throu the working of belief is able to bring about whatsoever interest . how necessary this art is to that of politic , is clearly evident from that mighty force , whereby the eloquence of the ancient orators captivated the minds of the people . mr. hobbes chose to recommend by his translation the rhetoric of aristotle , as being the most accomplish'd work on that subject , which the world has yet seen , having been admir'd in all ages , and in particular highly approv'd by the father of the roman eloquence , a very competent judge . to this he thought fit to add some small matter relating to that part which concern's tropes and figures ; as also a short discovery of some little tricks of false and deceitful reasoning . the other piece is a discourse concerning the laws of england , and has been finish'd many years . herein he has endeavour'd to accommodate the general notions of his politic to the particular constitution of the english monarchy . a design of no small difficulty , wherein to have succeeded , deserves much honour ; to have perchance miscarryed , deserves easie pardon . it has had the good fortune to be much esteem'd by the greatest men of the profession of the law , and therefore may be presumed to contain somewhat excellent . however 't is not to be expected , that al men should submit to his opinions , yet 't is hoped none will be offended at the present publishing these papers , since they will not find here any new fantastic notions , but only such things as have been already asserted with strength of argument by himself , and other persons of eminent learning . to the public at least this benefit may accrue , that some able pen may undertake the controversie , being moved with the desire of that reputation , which will necessarily attend victory over so considerable an adversary . the whole art of rhetorick . book i. chap. i. that rhetorick is an art consisting not only in moving the passions of the judge ; but chiefly in proofs . and that this art is profitable . we see that all men naturally are able in some sort to accuse and excuse : some by chance ; but some by method . this method may be discovered : and to discover method is all one with teaching an art. if this art consisted in criminations only , and the skill to stir up the judges to anger , envy , fear , pity , or other affections ; a rhetorician in well ordered common-wealths and states , where it is forbidden to digress from the cause in hearing , could have nothing at all to say . for all these perversions of the judge are beside the question . and that which the pleader is to shew , and the judge to give sentence on , is this only : 't is so : or not so . the rest hath been decided already by the law-maker ; who judging of universals , and future things , could not be corrupted . besides , 't is an absurd thing , for a man to make crooked the ruler he means to use . it consisteth therefore chiefly in proofs ; which are inferences : and all inferences being syllogismes , a logician , if he would observe the difference between a plain syllogisme , and an enthymeme , ( which is a rhetoricall syllogisme , ) would make the best rhetorician . for all syllogismes and inferences belong properly to logick ; whether they infer truth or probability : and because without this art it would often come to pass , that evil men by the advantage of natural abilities , would carry an evil cause against a good ; it brings with it at least this profit , that making the pleaders even in skill , it leaves the odds only in the merit of the cause . besides , ordinarily those that are judges , are neither patient , nor capable of long scientifical proofs , drawn from the principles through many syllogisms ; and therefore had need to be instructed by the rhetoricall , and shorter way . lastly , it were ridiculous , to be ashamed of being vanquished in exercises of the body , and not to be ashamed of being inferior in the vertue of well expressing the mind . chap. ii. the definition of rhetorick . rhetorick , is that faculty , by which we understand what will serve our turn , concerning any subject to win belief in the hearer . of those things that beget belief ; some require not the help of art ; as witnesses , evidences , and the like , which we invent not , but make use of ; and some require art , and are invented by us . the belief that proceeds from our invention , comes partly from the behaviour of the speaker ; partly from the passions of the hearer : but especially from the proofs of what we alledge . proofs are , in rhetorick , either examples , or enthymemes , as in logick , inductions , or syllogisms . for an example is a short induction , and an enthymeme a short syllogisme ; out of which are left as superfluous , that which is supposed to be necessarily understood by the hearer ; to avoid prolixity , and not to consume the time of publick business needlesly . chap. iii. of the several kinds of orations : and of the principles of rhetorick . in all orations , the hearer does either hear only ; or judge also . if he hear only , that 's one kind of oration , and is called demonstrative . if he judg , he must judg either of that which is to come ; or of that which is past . if of that which is to come , ther 's another kind of oration , and is called deliberative . if of that which is past ; then 't is a third kind of oration , called judicial . so there are three kinds of orations ; demonstrative , judicial , deliberative . to which belong their proper times . to the demonstrative , the present ; to the judicial , the past ; and to the deliberative , the time to come . and their proper offices . to the deliberative , exhortation and dehortation . to the judicial , accusation and defence . and to the demonstrative , praising and dispraising . and their proper ends . to the deliberative , to prove a thing profitable , or vnprofitable . to the judicial , just , or vnjust . to the demonstrative , honourable , or dishonourable . the principles of rhetorick out of which enthymemes are to be drawn ; are the common opinions that men have concerning profitable , and vnprofitable ; just , and vnjust ; honourable , and dishonourable ; which are the points in the several kinds of orations questionable . for as in logick , where certain and infallible knowledg is the scope of our proof , the principles must be all infallible truths : so in rhetorick the principles must be common opinions , such as the judg is already possessed with : because the end of rhetorick is victory ; which consists in having gotten belief . and because nothing is profitable , vnprofitable , just , vnjust , honourable or dishonourable , but what has been done , or is to be done ; and nothing is to be done , that is not possible : and because there be degrees of profitable , vnprofitable , just , vnjust , honourable , and dishonourable ; an orator must be ready in other principles ; namely , of what is done and not done ; possible and not possible , to come and not to come , and what is greater , and what is lesser , both in general , and particularly applyed to the thing in question ; as what is more and less , generally ; and what is more profitable , and less profitable , &c. particularly . chap. iv. of the subject of deliberatives ; and the abilities that are required of him that will deliberate of business of state. in deliberatives there are to be considered the subject , wherein ; and the ends whereto the orator exhorteth , or from which he dehorteth . the subject is always something in our own power , the knowledg whereof belongs not to rhetorick , but for the most part to the politicks ; and may be referred in a manner to these five heads . . of levying of money . to which point he that will speak as he ought to do , ought to know before hand the revenue of the state , how much it is , and wherein it consisteth : and also how great are the necessary charges and expences of the same . this knowledge is gotten partly by a mans own experience , partly by relations , and accounts in writing . . of peace and war. concerning which the counsellor or deliberator , ought to know the strength of the commonwealth ; how much it both now is , and hereafter may be ; and wherein that power consisteth . which knowledge is gotten , partly by experience , and relations at home ; and partly by the sight of wars , and of their events abroad . . of the safeguard of the country . wherein he only is able to give counsell , that knows the forms , and number , and places of the garrisons . . of provision . wherein to speak well , it is necessary for a man to know what is sufficient to maintain the state ; what commodities they have at home growing ; what they must fetch in through need ; and what they may carry out through abundance . . of making laws . to which is necessary so much political , or civil philosophy , as to know what are the several kinds of governments ; and by what means , either from without or from within , each of those kinds is , preserved , or destroyed . and this knowledg is gotten , partly by observing the several governments in times past , by history ; and partly by observing the government of the times present in several nations , by travel . so that to him that will speak in a councell of state , there is necessary this ; history , sight of wars , travel , knowledge of the revenue , expences , forces , havens , garrisons , wares , and provisions in the state he lives in ; and what is needful for that state , either to export , or import . chap. v. of the ends which the orator in deliberatives , propoundeth , whereby to exhort , or dehort . an orator in exhorting always propoundeth felicity , or some part of felicity to be attained by the actions he exhorteth unto : and in dehortation the contrary . by felicity , is meant commonly , prosperity with vertue , or a continual content of the life with surety . and the parts of it are such things as we call good , in body , mind , or fortune ; such as these that follow . . nobility , which to a state or nation is , to have been antient inhabitants ; and to have had most antiently , and in most number , famous generals in the wars , or men famous for such things as fall under emulation . and to a private man , to have been descended lawfully of a family , which hath yielded most antiently , and in most number , men known to the world for vertue , riches , or any thing in general estimation . . many and good children . which is also publick and private . publick , when there is much youth in the state endued with vertue , ( namely , of the body , stature , beauty , strength , and dexterity : of the mind , valour , and temperance ) private , when a man hath many such children , both male and female . the vertues commonly respected in women , are of the body , beauty , and stature ; of the mind , temperance , and houswifery , without sordidness . . riches . which is , money , cattel , lands , houshold-stuffe ; with the power to dispose of them . . glory . which is , the reputation of vertue , or of the possession of such things as all , or most men , or wise men desire . . honour . which is the glory of benefiting , or being able to benefit others . to benefit others , is to contribute somewhat , not easily had , to another mans safety , or riches , the parts of honour are , sacrifices , monuments , rewards , dedication of places , precedence , sepulchres , statues , publick pensions , adorations , presents . . health . which is the being free from diseases , with strength to use the body . . beauty . which is to different ages different . to youth , strength of body , and sweetness of aspect . to full men , strength of body fit for the wars , and countenance sweet , with a mixture of terror . to old men , strength enough for necessary labours , with a countenance not displeasing . . strength . which is the ability to move any thing at pleasure of the mover . to move , is to pull , to put off , to lift , to thrust down , to press together . . stature . which is then just , when a man in heighth , breadth , and thickness of body doth so exceed the most , as nevertheless it be no hinderance to the quickness of his motion . . good old age. which is , that which comes late , and with the least trouble . . many and good friends . which is , to have many that will do for his sake that which they think will be for his good . . prosperity . which is , to have all , or the most , or the greatest of those goods which we attribute to fortune . . vertue . which is then to be defined , when we speak of praise . these are the grounds from whence we exhort . dehortation is from the contraries of these . chap. vi. of the colours or common opinions concerning good and evil. in deliberatives , the principles , or elements from whence we draw our proofs , are common opinions concerning good and evil. and these principles are either absolute , or comparative . and those that are absolute , are either disputable , or indisputable . the indisputable principles are such as these ; good , is that which we love for it self . and that , for which we love somewhat else . and that which all things desire . and that to every man which his reason dictates . and that , which when we have , we are well , or satisfied . and that which satisfies . and the cause or effect of any of these . and that which preserves any of these . and that which keeps off , or destroys the contrary of any of these . also to take the good , and reject the evil , is good. and to take the greater good , rather than the less ; and the lesser evil , rather than the greater . further , all vertues are good. and pleasure . and all things beautiful . and justice , valour , temperance , magnanimity , magnificence ; and other like habits . and health , beauty , strength , &c. and riches . and friends . and honour , and glory . and ability to say or do : also towardliness , will , and the like . and whatsoever art , or science . and life . and whatsoever is just. the disputable principles are such as follow . that is , good , whose contrary is evil . and whose contrary is good for our enemies . and whose contrary our enemies are glad of . and of which there cannot be too much . and upon which much labour and cost hath been bestowed . and that which many desire . and that which is praised . and that which even our enemies and evil men praise . and what good we prefer . and what we do advise . and that which is possible , is good ( to undertake . ) and that which is easie. and that which depends on our own will. and that which is proper for us to do . and what no man else can do . and whatsoever is extraordinary . and what is suitable . and that which wants a little of being at an end . and what we hope to master . and what we are fit for . and what evil men do not . and what we love to do . chap. vii . of the colours , or common opinions concerning good and evil , comparatively . the colours of good comparatively depend partly upon the following definitions of comparatives . . more , is so much , and somewhat besides . . less , is that , which and somewhat else is so much . . greater and more in number are said only comparatively to less , and fewer in number . . great and little , many and few , are taken comparatively to the most of the same kind . so that great and many , is that which exceeds ; little and few , is that which is exceeded by the most of the same kind . partly from the precedent definitions of good absolutely . common opinions concerning good. comparatively then are these . greater good is many , than fewer , or one of those many . and greater is the kind , in which the greatest is greater than the greatest of another kind . and greater is that good than another good , whose kind is greater than another's kind . and greater is that from which another good follows ; then the good which follows . and of two which exceed a third , greater is that which exceeds it most . and that which causes the greater good. and that which proceeds from a greater good. and greater is that which is chosen for it self , than that which is chosen from somwhat else . and the end greater than that which is not the end . and that which less needs other things , than that which more . and that which is independent , than that which is dependent of another . and the beginning , than not the beginning . [ seeing the beginning is a greater good , or evil , than that which is not the beginning ; and the end , than that which is not the end ; one may argue from this colour both ways : as leodamas against chabrias , would have the actor more to blame than the advisor ; and against callistratus , the advisor more than the actor . ] and the cause , than not the cause . and that which hath a greater beginning or cause . and the beginning , or cause of a greater good or evil. and that which is scarce , greater than that which is plentiful ; because harder to get . and that which is plentiful , than that which is scarce ; because oftner in use. and that which is easie , than that which is hard. and that whose contrary is greater . and that whose want is greater . and vertue than not vertue , a greater good. vice , than not vice , a greater evil. and greater good , or evil is that , the effects whereof are more honourable or more shameful . and the effects of greater vertues , or vices . and the excess whereof is more tolerable , a greater good. and those things which may with more honour be desir'd . and the desire of better things . and those things whereof the knowledg is better . and the knowledge of better things . and that which wise men prefer . and that which is in better men . and that which better men chuse . and that which is more , than that which is less delightful . and that which is more , than that which is less honourable . and that which we would have for our selves and friends , a greater good ; and the contrary a greater evil. and that which is lasting , than that which is not lasting . and that which is firm , than that which is not firm. and what many desire , than what few . and what the adversary , or judg confesseth to be greater , is greater . and common than not common . and not common than common . and what is more laudable . and that which is more honour'd , a greater good. and that which is more punish'd , a greater evil. and both good and evil divided than undivided , appear greater . and compounded than simple , appear greater . and that which is done with opportunity , age , place , time , means disadvantagious , greater than otherwise . and that which is natural , than that which is attained unto . and the same part of that which is great , than of that which is less . and that which is nearest to the end designed . and that which is good or evil to ones self , than that which is simply so . and possible , than not possible . and that which comes toward the end of our life . and that which we do really , than that which we do for shew . and that which we would be , rather than what we would seem to be . and that which is good for more purposes , is the greater good. and that which serves us in great necessity . and that which is joyned with less trouble . and that which is joyned with more delight . and of the two , that which added to a third , makes the whole the greater . and that which having , we are more sensible of . and in every thing , that which we most esteem . chap. viii . of the several kinds of governments . because hortation and dehortation concern the common-wealth , and are drawn from the elements of good and evil ; as we have spoken of them already in the abstract , so we must speak of them also in the concrete ; that is , of what is good or evil to each sort of common-wealth in special . the government of a common-wealth , is either democracy , or aristocracy , or oligarchy , or monarchy . democracy is that , wherein all men with equal right , are preferred to the highest magistracy by lot. aristocracy is that , wherein the highest magistrate is chosen out of those , that had the best education , according to what the laws prescribe for best . oligarchy is that , where the highest magistrate is chosen for wealth . monarchy is that , wherein one man hath the government of all ; which government , if he limit it by law , is called kingdom ; if by his own will , tyranny . the end of democracy , or the peoples government , is liberty . the end of oligarchy , is the riches of those that govern. the end of aristocracy , is good laws , and good ordering of the city . the end of monarchy , or kings , is the safety of the people , and conservation of his own authority . good therefore , in each sort of government is that which conduceth to these their ends . and because belief is not gotten only by proofs , but also from manners ; the manners of each sort of commonwealth ought to be well understood by him that undertaketh to perswade , or diswade in matter of state. their manners may be known by their designs ; and their designs by their ends ; and their ends by what we see them take pleasure in . but of this more accurately in the politicks . chap. ix . of the colours of honourable and dishonourable . in a demonstrative oration , the subject whereof is praise , or dispraise ; the proofs are to be drawn from the elements of honourable and dishonourable . in this place we anticipate the second way of getting belief ; which is from the manners of the speaker . for praise , whether it come in as the principal business , or upon the by , depends still upon the same principles . which are these . honourable , is that , which we love for it self , and is withal laudable . and that good , which pleaseth us only because 't is good. and vertue . vertue is the faculty of getting and preserving that which is good ; and the faculty of doing many , and great things well . the kinds of it are these ; . justice ; which is a vertue whereby every man obtains what by law is his . . fortitude ; which is a vertue by which a man carries himself honourably , and according to the laws , in time of danger . . temperance ; which is a vertue whereby a man governs himself in matter of pleasure according to the law. . liberality ; which is a vertue , by which we benefit others in matter of money . . magnanimity ; which is a vertue , by which a man is apt to do great benefits . . magnificence ; which is a vertue , by which a man is apt to be at great cost . . prudence ; which is an intellectual vertue , by which a man is able to deliberate well concerning any good leading to felicity . and honourable , are the causes and effects of things honourable . and the works of vertue . and the signs of vertue . and those actions , the reward whereof is honor. and the reward whereof is rather honor , than money . and that which we do not for our own sakes . and what we do for our countries good , neglecting our own . and those things are honourable , which good of themselves , are not so to the owner . and those things which happen to the dead , rather than to the living . and what we do for other men , especially for benefactors . and bestowing of benefits . and the contrary of those things we are ashamed of . and those things which men strive for earnestly , but without fear of adversary . and of the more honourable , and better men , the vertues are more honourable . and more honourable are the vertues that tend to other mens benefit , than those which tend to ones own . and honourable are those things which are just. and revenge is honourable . and victory . and honour . and monuments . and those things which happen not ot the living . and things that excell . and what none can do but we . and possessions we reap no profit by . and those things which are had in honour particularly in several places . and the signs of praise . and to have nothing of the servile , mercenary , or mechanick . and that which seems honourable ; namely such as follow . vices confining upon vertue . and the extreams of vertues . and what the auditors think honourable . and that which is in estimation . and that which is done according to custom . besides , in a demonstrative oration , the orator must shew , that he whom he praiseth , did what he praiseth unconstrainedly , and willingly . and he does so , who does the same often . praise , is speech , declaring the magnitude of a vertue , action , or work. but to praise the work from the vertue of the worker , is a circular proof . to magnifie , and to praise , differ in themselves , as felicity and vertue . for praise declares a mans vertue ; and magnifying declares his felicity . praise is a kind of inverted precept . for to say , do it because 't is good , is a precept . but to say , he is good because he did it , is praise . an orator in praising must also use the forms of amplification ; such as these : he was the first that did it . the only man that did it . the special man that did it . he did it with disadvantage of time . he did it with little help . he was the cause , that the law ordained rewards and honours for such actions . further , he that will praise a man , must compare him with others ; and his actions with the actions of others ; especially with such as are renowned . and amplification is more proper to a demonstrative oration , than to any other . for here the actions are confess'd ; and the orators part is only this , to contribute unto them magnitude and luster . chap. x. of accusation and defence , with the definition of injury . in a judicial oration , which consists in accusation and defence , the thing to be proved is , that injury has been done : and the heads from whence the proofs are to be drawn , are these three : . the causes that move to injury . . the persons apt to do injury . . the persons obnoxious , or apt to suffer injury . an injury is a voluntary offending of another man contrary to the law. voluntary is that which a man does with knowledg , and without compulsion . the causes of voluntary actions are intemperance , and a vicious disposition concerning things desirable . as the covetous man does against the law , out of an intemperate desire of money . all actions proceed either from the doers disposition , or not . those that proceed not from the doers disposition are such as he does by chance , by compulsion , or by natural necessity . those that proceed from the doers disposition , are such as he does by custom , or upon premeditation , or in anger , or out of intemperance . by chance are said to be done those things whereof neither the cause , nor the scope is evident ; and which are done neither orderly , nor always , nor most commonly after the same manner . by nature are said to be done those things , the causes whereof are in the doer ; and are done orderly , and always , or for the most part after the same manner . by compulsion are done those things , which are against the appetite , and ordination of the doer . by custome those actions are said to be done , the cause whereof is this , that the door has done them often . vpon premeditation are said to be done those things which are done for profit , as the end , or the way to the end. in anger are said to be done those things which are done with a purpose of revenge . out of intemperance are said to be done those things which are delightful . in sum , every voluntary action tends either to profit or pleasure . the colours of profitable are already set down . the colours of that which is pleasing follow next . chap. xi . of the colours , or common opinions concerning pleasure . pleasure is a sudden and sensible motion of the soul , towards that which is natural . grief is the contrary . pleasant therefore is that , which is the cause of such motion . and to return to ones own nature . and customes . and those things that are not violent . vnpleasant are those things , which proceed from necessity , as cares , study , contentions . the contrary whereof , ease , remission from labour and care : also play , rest , sleep , are pleasant . pleasant also is that , to which we have an appetite . also the appetites themselves , if they be sensual ; as thirst , hunger , and lust. also those things to which we have an appetite upon perswasion and reason . and those things we remember , whether they pleased , or displeased , than when they were present . and the things we hope for . and anger . and to be in love. and revenge . and victory . therefore also contentious games ; as tables , chess , dice , tennis , &c. and hunting . and suits in law. and honour and reputation amongst men in honour and reputation . and to love. and to be belov'd and respected . and to be admir'd . and to be flatter'd . and a flatterer : ( for he seems both to love and admire . ) and the same thing often . and change , or variety . and what we return to afresh . and to learn . and to admire . and to do good. and to receive good. and to help up again one that 's fallen . and to finish that which is unperfect . and imitation . and therefore the art of painting . and the art of carving images . and the art of poetry . and pictures and statues . and other mens dangers , so they be near . and to have escaped hardly . and things of a kind please one another . and every one himself . and ones own pleases him . and to bear sway. and to be thought wise. and to dwell upon that which he is good at . and ridiculous actions , sayings and persons . chap. xii . presumptions of injury drawn from the persons that do it : or common opinions concerning the aptitude of persons to do injury . of the causes which move to injury , namely , profit and pleasure , has been already spoken , chap. . . . it follows next to speak of the persons , that are apt to do injury . the doers of injury are . such as think they can do it . and such as think to be undiscover'd when they have done it . and such as think , though they be discover'd , they shall not be called in question for it . and such as think , though they be called in question for it , that their mulct will be less than their gain , which either themselves or their friends receive by the injury . able to do injury are . such as are eloquent . and such as are practis'd in business . and such as have skill in process . and such as have many friends . and rich men. and such as have rich friends ; or rich servants ; or rich partners . vndiscover'd when they have done it , are such are not apt to commit the crimes whereof they are accused : as feeble men , slaughter : poor , and not beautiful men , adultery . and such as one would think could not chuse but be discover'd . and such as do injuries , whereof there hath been no example . and such as have none , or many enemies . and such as can easily conceal what they do . and such as have some body to transfer the fault upon . they that do injury openly , are such , whose friends have been injured . and such as have the judges for friends . and such as can escape their tryal at law. and such as can put off their tryal . and such as can corrupt the judges . and such as can avoid the payment of their fine . and such as can defer the payment . and such as cannot pay at all . and such as by the injury get manifestly , much , and presently ; when the fine is uncertain , little , and to come . and such as get by the injury , money ; by the penalty , shame only . and such on the contrary , as get honour by the injury , and suffer the mulct of money only , or banishment , or the like . and such as have often escaped , or been undiscovered . and such as have often attempted in vain . and such as consider present pleasure , more than pain to come ; and so intemperate men are apt to do injury . and such as consider pleasure to come , more than present pain ; and so temperate men are apt to do injury . and such as may seem to have done it by fortune , nature , necessity , or custom ; and by error , rather than by injustice . and such as have means to get pardon . and such as want necessaries , as poor men : or unnecessaries , as rich men . and such as are of very good , or very bad reputation . chap. xiii . presumptions of injury drawn from the persons that suffer , and from the matter of the injury . of those that do injury , and why they do it , it hath been already spoken . now of the persons that suffer , and of the matter wherein they suffer , the common opinions are these : persons obnoxious to injury are , such as have the things that we want , either as necessary , or as delightful . and such as are far from us . and such as are at hand . and such as are unwary , and credulous . and such as are lazy . and such as are modest. and such as have swallowed many injuries . and such as we have injured often before . and such as never before . and such as are in our danger . and such as are ill belov'd generally . and such as are envyed . and our friends . and our enemies . and such as , wanting friends , have no great ability either in speech or action . and such as shall be losers by going to law : as strangers , and workmen . and such as have done the injuries they suffer . and such as have committed a crime , or would have done , or are about to do . and such as , by doing them an injury , we shall gratifie our friends or superiours . and such , whose friendship we have newly left , and accuse . and such as another would do the injury to , if we should not . and such as by injuring , we get greater means of doing good . the matters wherein men are obnoxious to injury are , those things wherein all , or most men use to deal unjustly . and those things which are easily hid , and put off into other hands , or altered . and those things which a man is ashamed to have suffered . and those things wherein prosecution of injury , may be thought a love of contention . chap. xiv . of those things which are necessary to be known for the definition of just and unjust . when the fact is evident , the next inquiry is , whether it be just , or vnjust . for the definition of just and vnjust , we must know what law is ; that is , what the law of nature , what the law of nations ; what the law civil , what written law , and what unwritten law is : and what persons , that is , what a publick person , or the city is ; and what a private person , or citizen is . vnjust in the opinion of all men , is that which is contrary to the law of nature . vnjust in the opinion of all men of those nations which traffick and come together , is that which is contrary to the law common to those nations . vnjust only in one common-wealth , is that which is contrary to the law civil , or law of that common-wealth . he that is accused to have done any thing against the publick , or a private person , is accused to do it either ignorantly , or unwillingly , or in anger , or upon premeditation . and because the defendant does many times confess the fact , but deny the unjustice ; as that he took , but did not steal ; and did , but not adultery ; it is necessary to know the definitions of theft , adultery , and all other crimes . what facts are contrary to the written laws , may be known by the laws themselves . besides written laws , whatsoever is just , proceeds from equity , or goodness . from goodness proceeds that which we are praised , or honoured for . from equity proceed those actions , which though the written law command not , yet being interpreted reasonably , and supplyed , seems to require at our hands . actions of equity are such as these . not too rigorously to punish errors , mischances , or injuries . to pardon the faults that adhere to mankind . and not to consider the law so much , as the law-makers mind ; and not the words so much , as the meaning of the law. and not to regard so much the fact , as the intention of the doer ; nor part of the fact , but the whole ; nor what the doer is , but what he has been always , or for the most part . and to remember better the good received , than the ill. and to endure injuries patiently . and to submit rather to the sentence of a judge , than of the sword. and to the sentence of an arbitrator , rather than of a judge . chap. xv. of the colours or common opinions concerning injuries , comparatively . common opinions concerning injuries comparatively , are such as these : greater is the injury which proceed from greater iniquity . and from which proceedeth greater dammage . and of which there is no revenge . and for which there is no remedy . and by occasion of which , he that hath received the injury , hath done some mischief to himself . he does the greater injury , that does it first , or alone , or with few : and he that does it often . greater injury is that , against which laws and penalties were first made . and that which is more brutal , or more approaching to the actions of beasts . and that which is done upon more premeditation . and by which more laws are broken . and which is done in the place of execution . and which is of greatest shame to him that receives the injury . and which is committed against well deservers . and which is committed against the unwritten law ; because good men should observe the law for justice , and not for fear of punishment . and which is committed against the written law ; because he that will do injury neglecting the penalty set down in the written law , is much more likely to transgress the unwritten law , where there is no penalty at all . chap. xvi . of proofs inartificial . of artificial proofs we have already spoken . inartificial proofs , which we invent not , but make use of , are of five sorts . . laws . and those are civil , or written law : the law or custom of nations : and the universal law of nature . . witness . and those are such as concern matter ; and such as concern manners . also , they be ancient , or present . . evidences , or writings . . question , or torture . . oaths . and those be either given , or taken , or both , or neither . for laws , we use them thus . when the written law makes against us , we appeal to the law of nature , alledging , that to be greatest justice , which is greatest equity . that the law of nature is immutable ; the written law mutable . that the written law is but seeming justice ; the law of nature very justice . and justice is among those things which are , and not which seem to be . that the judge ought to discern between true and adulterate justice . that they are better men that obey unwritten , than written laws . that the law against us does contradict some other law. and when the law has a double interpretation , that is , the true one , which makes for us . and that the cause of the law being abolished , the law is no more of validity . but when the written law makes for us , and equity for the adversary , we must alledge , that a man may use equity , not as a liberty to judg against the law ; but only as a security against being forsworn , when he knows not the law. that men seek not equity because 't is good simply , but because good for them . that it is the same thing not to make , and not to use the law. that as in other arts , and namely in physick , fallacies are pernitious ; so in a common-wealth 't is pernitious to use pretexts against the law. and that in common-wealths well instituted , to seem wiser than the laws , is prohibited . for witnesses , we must use them thus : when we have them not , we must stand for presumptions , and say , that in equity sentence ought to be given according to the most probability . that presumptions are the testimony of the things themselves , and cannot be bribed . that they cannot lye . when we have witnesses , against him that has them not , we must say , that presumptions , if they be false , cannot be punished . that if presumptions were enough , witnesses were superfluous . for writings , when they favour us ; we must say , that writings are private and particular laws ; and he that takes away the use of evidences , abolisheth the law. that since contracts and negotiations pass by writings , he that bars their use , dissolves humane society . against them , if they favour the adversary , we may say , that since laws do not bind , that are fraudulently made to pass , much less writings . and that the judge being to dispense justice , ought rather to consider what is just , than what is in the writing . that writings may be gotten by fraud or force ; but justice by neither . that the writing is repugnant to some law , civil , or natural ; or to justice ; or to honesty . that 't is repugnant to some other writing before , or after . that it crosses some commodity of the judge ( which must not be said directly , but implyed cunningly . ) for the torture , if the giving of it make for us , we must say , that 't is the only testimony that is certain . but if it make for the adversary , we may say . that men inforced by torture , speak as well that which is false , as that which is true . that they who can endure , conceal the truth ; and they who cannot , say that which is false to be delivered from pain . for oaths ; he that will not put his adversary to his oath , may alledge , that he makes no scruple to be forsworn . that by swearing , he will carry the cause ; which not swearing , he must lose . that he had rather trust his cause in the hand of the judge , than of the adversary . he that refuseth to take the oath , may say , that the matter is not worth so much . that if he had been an evil man , he had sworn , and carryed his cause . that to try it by swearing for a religious man against an irreligious , is as hard a match , as to set a weak man against a strong in combate . he that is willing to take the oath , may pretend . that he had rather trust himself , than his adversary ; and that 't is equal dealing for an irreligious man to give , and for a religious man to take the oath . that 't is his duty to take the oath , since he has required to have sworn judges . he that offers the oath may pretend , that he does piously commit his cause to the gods. that he makes his adversary himself judge . that 't were absurd for him not to swear , that has required the judges to be sworn . and of these are to be compounded the forms we are to use , when we would give , and not take the oath ; or take , and not give ; or both give and take ; or neither give nor take . but if one have sworn contrary to a former oath , he may pretend ; that he was forced . that he was deceived , and that neither of these is perjury , since perjury is voluntary . but if the adversary do so , he may say ; that he that stands not to what he hath sworn , subverteth humane society . and ( turning to the judge ) what reason have we to require , that you should be sworn , that judge our cause ; when we will not stand to that we swear our selves . and so much for proofs inartificial . book . ii. chap. i. the introduction . of belief proceeding from our invention , that part which consisteth in proof , is already spoken of . the other two parts follow ; whereof one ariseth from the manners of the speaker ; the other from the passions of the hearer . the principles , colours , or common opinions upon which a mans belief is gronnded concerning the manners of him that speaks , are to be had partly out of that which hath been said before concerning vertue , book . . chap. . partly out of those things which shall be said by and by , concerning the passions . for a man is believed either for his prudence , or for his probity , which are vertues ; or for good will : of which among the passions . the principles concerning belief , arising from the passion of the hearer , are to be gather'd from that which shall now be said of the several passions in order . in every one of which three things are to be considered . . first , how men are affected . . secondly , towards whom . . thirdly , for what . chap. ii. of anger . anger is desire of revenge , joyned with grief for that he , or some of his , is , or seems to be neglected . the object of anger is always some particular , or individual thing . in anger there is also pleasure proceeding from the imagination of revenge to come . to neglect , is to esteem little or nothing : and of three kinds . . contempt . . crossing . . contumely . contempt , is when a man thinks another of little worth in comparison to himself . crossing is the hinderance of another mans will without design to profit himself . contumely , is the disgracing of another for his own pastime . the common opinions concerning anger are therefore such as follow . they are easily angry that think they are neglected . that think they excell others ; as the rich with the poor ; the noble with the obscure , &c. and such as think they deserve well . and such as grieve to be hindered , opposed , or not assisted . and therefore sick men , poor men , lovers , and generally all that desire , and attain not , are angry with those that standing by , are not moved with their wants . and such as having expected good , find evil . those that men are angry with , are , such as mock , deride , or jest at them . and such as shew any kind of contumely , towards them . and such as despise those things which we spend most labour and study upon : and the more , by how much we seem the less advanced therein . and our friends , rather than those that are not our friends . and such as have honoured us , if they continue not . and such as requite not our courtesie . and such as follow contrary courses , i● they be our inferiors . and our friends , if they have said , or done us evil , or not good . and such as give not eare to our intreaty . and such as are joyful , or calm in our distress . and such as troubling us , are not themselves troubled . and such as willingly hear or see our disgraces . and such as neglect us in the presence of our competitors ; of those we admire of those we would have admire us ; of those we reverence , and of those that reverence us . and such as should help us , and neglect it . and such as are in jest , when we are in earnest . and such as forget us , or our names . an orator therefore must so frame his judg or auditor by his oration ; as to make him apt to anger : and then make his adversary appear such as men use to be angry withal . chap. iii. of reconciling , or pacifying anger . reconciliation is the appeasing of anger . those to whom men are easily reconciled , are , such as have not offended out of neglect . and such as have done it against their will. and such as wish done the contrary of what they have done . and such as have done as much to themselves . and such as confess and repent . and such as are humbled . and such as do seriously the same things , that they do seriously . and such as have done them more good heretofore , than now hurt . and such as sue to them for any thing . and such as are not insolent , nor mockers , nor slighters of others in their own disposition . and generally such as are of a contrary disposition to those , whom men are usually angry withal . and such as they fear or reverence . and such as reverence them . and such as have offended their anger . reconcilable are , such as are contrarily affected to those whom we have said before to be easily angry . and such as play , laugh , make merry , prosper , live in plenty ; and in sum , all that have no cause of grief . and such as have given their anger time . men lay down their anger for these causes . because they have gotten the victory . because the offender has suffered more than they meant to inflict . because they have been revenged of another . because they think they suffer justly . and because they think the revenge will not be felt , or not known that the revenge was theirs , and for such an injury . and because the offender is dead . whosoever therefore would asswage the anger of his auditor , must make himself appear such , as men use to be reconciled unto : and beget in his auditor such opinions , as make him reconcileable . chap. iv. of love and friends . to love , is to will well to another , and that for others , not for our own sake . a friend is he that loves , and he that is beloved . friends one to another , are they that naturally love one another . a friend therefore is he , that rejoyceth at anothers good. and that grieves at his hurt . and that wishes the same with us to a third , whether good , or hurt . and that is enemy or friend to the same man. we love them , that have done good to us , or ours ; especially if much , readily , or in season . that are our friends friends . that are our enemies enemies . that are liberal . that are valiant . that are just. and that we would have love us . and good companions . and such as can abide jests . and such as break jests . and such as praise us , especially for somewhat that we doubt of in our selves . and such as are neat . and such as upbraid us not with our vices , or with their own benefits . and such as quickly forget injuries . and such as least observe our errors . and such as are not of ill tongue . and those that are ignorant of our vices . and such as cross us not when we are busie , or angry . and such as are officious towards us . and those that are like us . and such as follow the same course or trade of life , where they impeach not one another . and such as labour for the same thing , when both may be satisfied . and such as are not ashamed to tell us freely their faults , so it be not in contempt of us , and the faults such , as the world , rather than their own consciences condemns . and such as are ashamed to tell us of their very faults . and such as we would have honour us , and not envie , but imitate us . and such as we would do good to , except with greater hurt to our selves . and such as continue their friendship to the dead . and such as speak their mind . and such as are not terrible . and such as we may rely on . the several kinds of friendship , are society , familiarity , consanguinity , affinity , &c. the things that beget love , are , the bestowing of benefits . gratis . vnasked . privately . chap. v. of enmity and hatred . the colours , or common opinions concerning hatred are to be taken from the contrary of those , which concern love and friendship . hatred differs from anger in this , that anger regards only what is done to ones self ; but hatred not . and in this , that anger regards particulars only ; the other universals also . and in this , that anger is curable , hatred not . and in this , that anger seeks the vexation , hatred the dammage of ones adversary . that with anger there is always joyned grief ; with hatred not always . that anger may at length be satiated , but hatred never . hence it appears how the judge or auditor may be made friend or enemy to us ; and how our adversary may be made appear friend or enemy to the judge ; and how we may answer to our adversary , that would make us appear enemies to him . chap. vi. of fear . fear is a trouble , or vexation of the mind , arising from the apprehension of an evil at hand , which may hurt or destroy . danger is the nearness of the evil feared . the things to be feared , are , such as have power to hurt . and the signs of will to do us hurt , as anger and hatred of powerful men . and injustice joyned with power . and valour provoked , joyned with power . and the fear of powerful men . the men that are to be feared , are , such as know our faults . and such as can do us injury . and such as think they are injured by us . and such as have done us injury . and our competitors in such things as cannot satisfie both . and such as are feared by more powerful men than we are . and such as have destroyed greater men than we are . and such as use to invade their inferiours . and men not passionate , but dissemblers , and crafty , are more to be feared than those that are hasty and free . the things especially to be feared , are , such , wherein if we err , the error cannot be repaired ; at least , not according to ours , but our adversaries pleasure . and such as admit either none , or not easie help . and such as being done , or about to be done to others , make us pitty them . they that fear not , are , such as expect not evil ; or not now ; or not this ; or not from these . and therefore men fear little in prosperity . and men fear little that think they have suffered already . an orator therefore that wouldput fear into the auditor , must let him see that he is obnoxious ; and that greater than he do suffer , and have suffer'd from those , and at those times they least thought . chap. vii . of assurance . assurance is hope , arising from an imagination that the help is near , or the evil afar off . the things therefore that beget assurance are , the remoteness of those things that are to be feared , and the nearness of their contraries . and the facility of great , or many helps or remedies . and neither to have done ; nor received injury . and to have no competitors or not great ones , or if great ones , at least friends ; such as we have obliged , or are obliged to . and that the danger is extended to more , or greater than us . assured , or confident , are , they that have oft escaped danger . and they to whom most things have succeeded well . and they that see their equals , or inferiours not afraid . and they that have wherewith to make themselves feared , as wealth , strength , &c. and such as have done others no wrong . and such as think themselves in good terms with god almighty . and such as think they will speed well , that are gone before . chap. viii . of shame . shame is a perturbation of the mind arising from the apprehension of evil , past , present , or to come , to the prejudice of a mans own , or his friends reputation . the things therefore which men are ashamed of are those actions which proceed from vice , as , to throw away ones arms ; to run away , signs of cowardliness . to deny that which is committed to ones trust , a sign of injustice . to have lyen with whom , where , and when we ought not , signs of intemperance . to make gain of small and base things ; not to help with money whom and how much we ought ; to receive help from meaner men ; to ask money at use from such as one thinks will borrow of him ; to borrow of him that expects payment of somewhat before lent ; and to redemand what one has lent , of him that one thinks will borrow more ; and so to praise , as one may be thought to ask ; signs of wretchedness . to praise one to his face ; to praise his vertues too much , and colour his vices ; signs of flattery . to be unable to indure such labours as men indure that are elder , tenderer , greater in quality , and of less strength than he , signs of effeminacy . to be beholden often to another ; and to upbraid those that are beholding to him , signs of pusillanimity . to speak and promise much of ones self more than his due , signs of arrogance . to want those things which ones equals , all , or most of them have attained to , is also a thing to be ashamed of . and to suffer things ignominious , as to serve about anothers person ; or to be imployed in his base actions . in actions of intemperance , whether willingly , or unwillingly committed ; there is shame in actions of force , only when they are done unwillingly . the men before whom we are ashamed , are such as we respect ; namely , those that admire us . and those whom we desire should admire us . and those whom we admire . those that contend with us for honour . those whose opinion we contemn not . and therefore men are most ashamed in the presence . of old and well bred men . of those we are always to live with . of those that are not guilty of the same fault . of those that do not easily pardon . and of those that are apt to reveal our faults ; such as are men injured , backbiters , scoffers , comick poets . and of those before whom we have had always good success . and of those who never asked any thing of us before . and of such as desire our friendship . and of our familiars , that know none of our crimes . and of such as will reveal our faults to any of those that are named before . but in the presence of such whose judgment most men despise , men are not ashamed . therefore we are ashamed also in the presence of those whom we reverence . and of those who are concerned in our own , or ancestors , or kinsfolks actions or misfortunes , if they be shameful . and of their rivals . and of those that are to live with them that know their disgrace . the common opinions concerning impudence are taken from the contrary of these . chap. ix . of grace , or favour . grace is that vertue , by which a man is said to do a good turn , or do service to a man in need ; not for his own but for his cause to whom he does it . great grace is when the need is great ; or when they are hard , or difficult things that are conferr'd , or when the time is seasonable , or when he that conferr's the favour is the only , or first man that did it . need , is a desire joyned with grief for the absence of the thing desired . grace therefore it is not , if it be not done to one that needs . whosoever therefore would prove that he has done a grace , or favour , must shew that he needeth it to whom it was done . grace it is not , which is done by chance . nor which is done by necessity . nor which has been requited . nor that which is done to ones enemy . nor that which is a trifle . nor that which is nought , if the giver know the fault . and in this manner a man may go over the praedicaments , and examine a benefit , whether it be a grace for being this , or for being so much , or for being such , or for being now , &c. chap. x. of pity , or compassion . pity is a perturbation of the mind , arising from the apprehension of hurt o● trouble to another that doth not deserve it , and which he thinks may happen to himself , or his . and because it appertains to pity , it think that he , or his may fall into the misery he pities in others , it follows that they be most compassionate , who have passed through misery . and old men. and weak men. and timorous men. and learned men. and such as have parents , wife , and children . and such as think there be honest men. and that they are iess compassionate . who are in great despair . who are in great prosperity . and they that are angry ; for they consider not . and they that are very confident ; for they also consider not . and they that are in the act of contumely ; for neither do these consider . and they that are astonished with fear . and they that think no man honest . the things to be pitied are , such as grieve , and withal hurt . such as destroy . and calamities of fortune , if they be great : as none or few friends , deformity , weakness , lameness , &c. and evil that arrives where good is expected . and after extream evil , a little good. and through a mans life to have no good offer it self ; or being offer'd , not to have been able to enjoy it . men to be pitied are , such as are known to us , unless they be so near to us , as their hurt be our own . and such as be of our own years . such as are like us in manners . such as are of the same , or like stock . and our equals in dignity . those that have lately suffer'd , or are shortly to suffer injury : and those that have the marks of injury past . and those that have the words or actions of them that be in present misery . chap. xi . of indignation . opposite in a manner to pity in good men , is indignation , which is grief for the prosperity of a man unworthy . with indignation there is always joyned a joy for the prosperity of a man worthy , as pity is always with contentment in the adversity of them that deserve it . in wicked men the opposite of pity is , envy ; as also the companion thereof , delight in the harm of others , which the greeks in one word have called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . but of these in the next chapter . men conceive indignation against others , not for their vertues , as justice , &c. for these make men worthy ; and in indignation we think men unworthy . but for those goods which men indued with vertue , and noble men , and handsome men are worthy of . and for newly gotten power and riches , rather than for antient , and especially if by these he has gotten other goods , as by riches , command . the reason why we conceive greater indignation against new than antient riches , is , that the former seem to possess that which is none of theirs . but the antient seem to have but their own . for with common people , to have been so long , is to be so by right . and for the bestowing of goods incongruously : as when the arms of the most valiant achilles were bestowed on the most eloquent vlysses . and for the comparison of the inferiour in the same thing , as when one valiant is compared with a more valiant ; or whether absolutely superiour , as when a good scholer is compared with a good man. apt to indignation are , they that think themselves worthy of the greatest goods , and do possess them . and they that are good . and they that are ambitious . and such as think themselves deserve better what another possesseth , than he that hath it . least apt to indignation are , such as are of a poor , servile , and not ambitious nature . who they are , that rejoyce , or grieve not at the adversity of him that suffers worthily , and in what occasions , may be gathered from the contrary of what has been already said . whosoever therefore would turn away the compassion of the judge , he must make him apt to indignation ; and shew that his adversary is unworthy of the good , and worthy of the evil which happens to him . chap. xii . of envy . envy is grief , for the prosperity of such as our selves , arising not from any hurt that we , but from the good that they receive . such as our selves , i call those that are equal to us in blood , in age , in abilities , in glory , or in means . they are apt to envy , that are within a little of the highest . and those that are extraordinarily honoured for some quality that is singular in them , especially wisdom or good fortune . and such as would be thought wise . and such as catch at glory in every action . and men of poor spirits : for every thing appears great to them . the things which men envy in others are , such as bring glory . and goods of fortune . and such things as we desire for our selves . and things in the possession whereof we exceed others , or they us a little . obnoxious to envy are , men of our own time , of our own countrey , of our own age , and competitors of our glory . and therefore , those whom we strive with for honour . and those that covet the same things that we do . and those that get quickly , what we hardly obtain , or not at all . and those that attain unto , or do the things that turn to our reproach , not being done by us . and those that possess what we have possessed heretofore . so old and decayed men envy the young and lusty . and those that have bestowed little , are subject to be envyed by such as have bestowed much upon the same thing . from the contraries of these may be derived the principles concerning joy for other mens hurt . he therefore that would not have his enemy prevail , when he craves pity , or other favour ; must dispose the judge to envy ; and make his adversary appear such , as are above described , to be subject to the envy of others . chap. xiii . of emulation . emulation is grief arising from that our equals possess such goods as are had in honour , and whereof we are capable , but have them not ; not because they have them , but because not we also . no man therefore emulates another in things whereof himself is not capable . apt to emulate are , such as esteem themselves worthy of more than they have . and young and magnanimous men. and such as already possess the goods for which men are honoured : for they measure their worth by their having . and those that are esteemed worthy by others . and those whose ancestors , kindred , familiars , nation , city , have been eminent for some good , do emulate others for that good . objects of emulation are , for things ; vertues . and things whereby we may profit others . and things whereby we may please others . for persons , they that possess such things . and such as many desire to be friends or acquainted with , or like unto . and they whose praises flie abroad , the contrary of emulation is contempt . and they that emulate such as have the goods aforementioned , contemn such as have them not : and thence it is , that men who live happily enough , unless they have the goods which men honour , are nevertheless contemned . chap. xiv . of the manners of youth . of passions we have already spoken . we are next to speak of manners . manners are distinguished by passions ; habits , ages , and fortunes . what kind of manners proceed from passions , and from vertues and vices ( which are habits , ) hath been already shewed . there remains to be spoken of the manners , that are peculiar to several ages and fortunes . the ages are youth , middle-age , old age. and first of youth . young men are , violent in their desires . prompt to execute their desires . incontinent . inconstant , easily forsaking what they desired before . longing mightily , and soon satisfied . apt to anger , and in their anger violent : and ready to execute their anger with their hands . lovers of honour , and of victory more than money , as having not been yet in want. well natured , as having not been acquainted with much malice . full of hope , both because they have not yet been often frustrated , and because they have by natural heat that disposition that other ages have by wine ; youth being a kind of natural drunkenness . besides , hope is of the time to come , whereof youth hath much , but of the time past little . credulous , because not yet often deceived . easily deceived , because full of hope . valiant , because apt to anger and full of hope ; whereof this begets confidence , the other keeps off fear . bashful , because they estimate the honour of actions by the precepts of the law. magnanimous , because not yet dejected by the misfortunes of humane life . and lovers of honour more than of profit , because they live more by custom than by reason ; and by reason we acquire profit , but vertue by custom . lovers of their friends and companions . apt to err in the excese , rather than the defect , contrary to that precept of chilon , ne quid nimis ; for they overdo every thing : they love too much , and hate too much , because thinking themselves wise , they are obstinate in the opinion they have once delivered . doers of injury rather for contumely than for dammage . mercifull , because measuring others by their own innocence , they think them better than they be , and therefore less to merit what they suffer ; which is a cause of pity . and lovers of mirth , and by consequence such as love to jest at others . jesting is witty contumely . chap. xv. of the manners of old men. the manners of old men are in a manner the contraries of those of youth . they determine nothing : they do every thing less vehemently than is fit : they never say they know ; but to every thing they say , perhaps and peradventure ; which comes to pass from that having lived long , they have often mistaken and been deceived . they are peevish because they interpret every thing to the worst . and suspicious through incredulity , and incredulous by reason of their experience . they love and hate , as if they meant to continue in neither . are of poor spirits , as having been humbled by the chances of life . and covetous , as knowing how easie 't is to lose , and hard to get . and timorous , as having been cooled by years . and greedy of life : for good things seem greater by the want of them . and lovers of themselves out of pusilla●imity . and seek profit more than honour , because they love themselves ; and profit is among the goods that are not simply good , but good for ones self . and without bashfulness , because they despise seeming . and hope little ; knowing by experience that many times good counsel has been followed with ill event , and because also they be timorous . and live by memory rather than hope ; for memory is of the time past , whereof old men have good store . and are full of talk , because they delight in their memory . and vehement in their anger ; but not stout enough to execute it . they have weak , or no desires ; and thence seem temperate . they are slaves to gain . and live more by reason than custom ; because reason leads to profit , as custom to that which is honourable . and do injury to indammage , and not in contumely . and are merciful by compassion , or imagination of the same evils in themselves which is a kind of infirmity , and not humanity , as in young men , proceeding from a good opinion of those that suffer evil. and full of complaint , as thinking themselves not far from evil , because of their infirmity . seeing then every man loves such men , and their discourses , which are most agreeable to their own manners ; 't is not hard to collect , how the orator , and his oration may be made acceptable to the hearer , whether young or old. chap. xvi . of the manners of middle-aged men . the manners of middle-aged men , are between those of youth , and old men , and therefore , they neither dare , nor fear too much : but both as is fit . they neither believe all ; nor reject all ; but judge . they seek not only what is honourable , nor only what is profitable ; but both . they are neither covetous , nor prodigal ; but in the mean. they are neither easily angry ; nor yet stupid : but between both . they are valiant , and withal temperate . and in general , whatsoever is divided in youth , and old men : is compounded in middle-age . and whereof the excess , or defect is in youth or old men ; the mediocrity is in those of middle-age . middle-age for the body , i call the time from thirty to five and thirty years : for the mind , the nine and fortieth , or thereabouts . chap. xvii . of the manners of the nobility . of manners that proceed from the several ages we have already spoken . we are next to speak of those that rise from several fortunes . the manners of the nobility are , to be ambitious . to undervalue their ancestors equals . for the goods of fortune seem the more precious for their antiquity . nobility is the vertue of a stock . and generosity , is not to degenerate from the vertue of his stock . for as in plants ; so in the races of men , there is a certain progress ; and they grow better and better to a certain point ; and change , viz. subtil wits into madness ; and staid wits into stupidity and blockishness . chap. xviii . of the manners of the rich. rich men are contumelious , and proud. this they have from their riches . for seeing every thing may be had for money , having money , they think they have all that is good . and effeminate ; because they have wherewithal to subminister to their lust. and boasters of their wealth : and speak in high terms foolishly . for men willingly talk of what they love and admire ; and think others affect the same that they do : and the truth is , all sorts of men submit to the rich. and think themselves worthy to command , having that by which men attain command . and in general , they have the manners of fortunate fools . they do injury , with intention not to hurt , but to disgrace ; and partly also through incontinence . there is a difference between new and ancient riches : for they that are newly come to wealth have the same faults in a greater degree : for new riches are a kind of rudeness and apprentiship of riches . chap. xix . of the manners of men in power , and of such as prosper . the manners of men in power , are the same , or better than those of the rich. they have a greater sense of honour than the rich ; and their manners are more manly . they are more industrious than the rich : for power is sustained by industry . they are grave , but without austereness : for being in place conspicuous , they carry themselves the more modestly ; and have a kind of gentle and comely gravity , which the greeks call 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . when they do injuries , they do great ones . the manners of men that prosper , are compounded of the manners of the nobility , the rich , and those that are in power , for to some of these all prosperity appertains . prosperity in children , and goods of the body , make men desire to exceed others in the goods of fortune . men that prosper have this ill , to be more proud , and inconsiderate than others . and this good ; that they worship god , trusting in him , for that they find themselves to receive more good than proceeds from their industry . the manners of poor men , obscure men , men without power , and men in adversity , may be collected from the contrary of what has been said . chap. xx. common places or principles concerning what may be done , what has been done , and what shall be done ; or of fact possible , past and future . also of great and little. we have hitherto set down such principles as are peculiar to several kinds of orations . now we are to speak of such places as are common to them all ; as these , possible , done , or past , future , great , small . possible is that , the gontrary whereof is possible . and the like whereof is possible . and then which some harder thing is possible . and the beginning whereof is possible . and the end whereof is possible . and the usual consequent whereof is possible . and whatsoever we desire . and the beginning whereof is in the power of those whom we can either compell or perswade . and part whereof is possible . and part of the whole that is possible . and the general if a particular . and a particular if the general . and of relatives , if one , the other . and that which without art and industry is possible , is much more so with art and industry . and that which is possible to worse , weaker , and unskilfuller men , is much more so to better , stronger , and more skilful . the principles concerning impossible are the contraries of these . that has been done , then which a harder thing has been done. and the consequent whereof has been done . and that which being possible , he had a will to , and nothing hindered . and that which was possible , to him in his anger . and that which he longed to do . and that which was before upon the point of doing . and whose antecedent has been done ; or that , for which it uses to be done. and if that , for whose cause we do this , than this . the principles concerning not done are the contraries of these . that shall be done . which some man can , and means to do . and which some man can , and desires to do . and which is in the way , and upon the point to be done . and the antecedents whereof are past . and the motive whereof is past . of great and small , more and less , see chap. . book . . chap. xxi . of example , similitude , and fables . of the principles both general and special from whence proofs are to be drawn , has been already spoken . now follow the proofs themselves which are examples or enthymemes . an example is either an example properly so called ( as some action past : ) or a similitude ( which also is , called a parable : ) or a fable ( which contains some action feigned . ) an example properly so called , is this ; darius came not into greece , till he had first subdued aegypt . xerxes also conquered aegypt first ; then afterwards crossed the hellespont . we ought therefore to hinder the king of persia from conquering aegypt . a similitude , or parable , is such as followeth : they who choose their magistrates by lot , are like them that choose for their champions those on whom the lot shall fall , rather than those who have the greatest strength ; and for their pilot , not him that hath skill ; but him whose name is drawn out of the vrne . a fable is in this manner . the horse desiring to drive out the stag from his common such as are not manifest ; are either conclusions of enthymemes ; as he that 's wise will not suffer his children , &c. or else are enthymematical ; that is ; have in themselves the force of an enthymeme ; as mortal men ought not to carry immortal anger . a sentence not manifest , ought to be either inferr'd , or confirm'd . inferr'd thus . 't is not good to be effeminately minded , nor to be envyed by ones fellow citizens . a wise man therefore will not have his children over-learned . confirm'd thus . a wise man will not have his children over-learned , seeing too much learning both softens a mans mind , and procures him envy among his fellow citizens . if a reason be added to a manifest sentence let it be short . sentences become not every man ; but only old men , and such as be well versed in business . for to hear a young man speak sentencee , is ridiculous ; and to hear an ignorant man speak sentences , is absurd . sentences generally received , when they are for our purpose , ought not to be neglected , because they pass for truths . and yet they may be denyed , when any laudable custom , or humour may thereby be made appear in the denyer . the commodities of sentences , are two . one proceeding from the vanity of the hearer , who takes for true universally affirmed , that which he has found for true only in some particular ; and therefore a man ought to consider in every thing what opinion the hearer holds . another is , that sentences do discover the manners and disposition of the speaker ; so that if they be esteemed good sentences , he shall be esteemed a good man ; and if evil , an evil man. thus much of sentences , what they be ; of how many sorts ; how to be used ; whom they become ; and what is their profit . chap. xxiii . of the invention of enthymemes . seeing an enthymeme differs from a logical syllogisme , in that it neither concludes out of every thing , nor out of remote principles ; the places of it , from whence a man may argue ought to be certain , and determinate . and because whosoever makes a syllogisme rhetorical , or other , should know all , or the most part of that which is in question ; as , whosoever is to advise the athenians in the question , whether they are to make war or no , must know what their revenues be ; what , and what kind of power they have : and he that will praise them , must know their acts at salamis , marathon , &c. it will be necessary for a good speaker to have in readiness the choicest particulars of whatsoever he foresees he may speak of . he that is to speak ex tempore , must comprehend in his speech as much as he can of what is most proper in the matter in hand . proper , i call those things which are least common to others ; as , he that will praise achilles , is not to declare such things as are common both to him , and diomedes ; as that he was a prince , and warred against the trojans ; but such things as are proper only to achilles ; as that he killed hector and cygnus ; went to the war young , and voluntary . let this therefore be one general place , from that which is proper . chap. xxiv . of the places of enthymemes ostensive . forasmuch as enthymemes either infer truly , or seem only so to do ; and they which do infer indeed , be either ostensive ; or such as bring a man to some impossibility ; we will first set down the places of enthymemes ostensive . and ostensive enthymeme is , wherein a man concludes the question from somewhat granted . that enthymeme which brings a man to an impossibility , is an enthymeme wherein from that which the adversary maintaineth , we conclude that which is manifestly impossible . all places have been already set down in a manner in the precedent propositions of good , evil , just , vnjust , honourable and dishonourable : namely , they have been set down as applyed to particular subjects , or in concrete . here they are to be set down in another manner ; namely in the abstract or vniversal . the first place then let be from contraries , which in the concrete or particulars is exemplified thus . if intemperance be hurtful , temperance is profitable : and if intemperance be not hurtful ; neither is temperance profitable . another place may be from cognomination or affinity of words : as in this particular . if what is just be good ; then what is justly is well : but justly to die is not well : therefore not all that is just is good. a third from relatives ; as , this man has justly done , therefore the other has justly suffered . but this place sometimes deceives for a man may suffer justly , yet not from him . a fourth from comparison , three ways . from the great to the less ; as , he has stricken his father ; and therefore this man. from the less to the greater : as , the gods know not all things ; much less man. from equality : as , if captains be not always the worse esteemed for losing a victory ; why should sophisters ? another from the time : as philip to the thebans : if i had required to pass through your country with my army , before i had ●ayded you against the phocaeans , there is no doubt but you would have promised it me . it is absurd therefore to deny it me now , after i have trusted you : a sixth from what the adversary says of himself : as , iphicrates asked aristophon , whether he would take a bribe to betray the army : and he answering no ; what ( says he ) is it likely that iphicrates would betray the army ; and aristophon not ? this place would be ridiculous , where the defendant were not in much more estimation than the accuser . a seventh from the definition ; as that of socrates ; a spirit is either god , or the creature of god : and therefore he denies not that there is a god , that confesses there are spirits . an eighth from the distinction of an ambiguous word . a ninth from division : as , if all men do what they do for one of three causes , whereof two are impossible ; and the accuser charge not the defendant with the third ; it follows that he has not done it . a tenth from induction : as , at athens , at thebes , at sparta , &c. and therefore every where . an eleventh from authority , or precedent sentence ; as that of sappho , that death is evil , for that the gods have judged it so , in exempting themselves from mortality . a twelfth from the consequence : as , 't is not good to be envied ; therefore neither to be learned . 't is good to be wise , therefore also to be instructed . a thirteenth from two contrary consequences ; as , 't is not good to be an orator , because if he speak the truth , he shall displease men : if he speak falsely , he shall displease god. here is to be noted , that sometimes this argument may be retorted : as thus , if you speak truth , you shall please god ; if you speak untruth you shall please men ; therefore by all means be an orator . a fourteenth from the quality that men have to praise one thing , and approve another ▪ as , we ought not to war against the athenians upon no precedent injury ; for all men discommend injustice . again , we ought to war against the athenians ; for otherwise our liberty is at their mercy , that is , is no liberty : but the preservation of liberty is a thing that all men will approve . a fifteenth from proportion : as , seeing we naturalize strangers for their virtues , why should we not banish this stranger for his vices ? a sixteenth from the similitude of consequents : as , he that denies the immortality of the gods , is no worse than he that has written the generation of the gods. for the same consequence follows of both , that sometimes there are none . a seventeenth from that , that men change their mind : as , if when we were in banishment , we fought to recover our countrey , why should we not fight now to retain it ? an eighteenth from a fained end : as , that diomedes chose ulysses to go with him , not as more valiant than another ; but as one that would partake less of the glory . a nineteenth from the cause ; as if he would infer he did it from this , that he had cause to do it . a twentieth from that which is incredible , but true : as , that laws may need a law to mend them ; as well as fish bred in the salt water , may need salting . chap. xxv . of the places of enthymemes that lead to i●possibility . let the first place be from inspection 〈◊〉 times , actions , or words , either of the adversary , or of the speaker , or both. o● the adversary ; as , he says , he loves the people , and yet he was in the conspiracy of the thirty . of the speaker ; as , he says , i am contentious , and yet i never began suit. of both ; as he never conferr'd any thing to the benefit of the commonwealth , whereas i have ransomed divers citizens with mine own money . a second from shewing the cause of that which seemed amiss , and serves for men of good reputation that are accused ; as , the mother that was accused of incest for being seen imbracing her son , was absolved as soon as she made appear , that she imbraced him upon his arrival from far , by way of salutation . a third , from rendring of the cause ; as , leodamas . to whom it was objected , that he had , under the thirty tyrants , defaced the inscription ( which the people had set up in a pillar ) of his ignominy ; answered , he had not done it ; because it would have been more to his commodity to let it stand ; thereby to indear himself to the tyrants , by the testimony of the peoples hatred . a fourth from better counsel ; as , he might have done better for himself ; therefore he did not this . but this place deceives , when the better counsel comes to mind after the fact. a fifth , from the incompatibility of the things to be done ; as , they that did deliberate whether they should both mourn and sacrifice at the funeral of leucothea , were told , that if they thought her a goddess , they ought not to mourn ; and if they thought her a mortal , they ought not to sacrifice . a sixth ( which is proper to judicial orations ) from an inference of errour ; as , if he did it not , he was not wise , therefore he did it . enthymemes that lead to impossibility , please more than ostensive : for they compare , and put contraries together , whereby they are the better set off , and more conspicuous to the auditor . of all enthymemes , they be best , which we assent to as soon as hear . for such consent pleaseth us ; and makes us favourable to the speaker . chap. xxvi . of the places of seeming enthymemes . of seeming enthymemes , one place may be from the form of speaking ; as when a man has repeated divers sentences , he brings in his conclusion , as if it follow'd necessarily , though it do not . a second from an ambiguous word . a third from that which is true divided , to that which is false joyned ; as that of orestes , it was justice that i should revenge my fathers death , and it was justice my mother should die for killing my father , therefore i justly killed my mother . or from that which is true joyned , to that which is false divided ; as , one cup of wine , and one cup of wine , are hurtful ; therefore one cup of wine is hurtful . a fourth from amplification of the crime . for neither is the defendant likely to have committed the crime he amplifies ; nor does the accuser seem , when he is passionate , to want ground for his accusation . a fifth from signs ; as , when a man concludes the doing of the fact from the manner of his life . a sixth from that which comes by chance , as if from this , that the tyranny of hipparthus came to be overthrown from the love of aristogeiton to harmodius , a man should conclude , that in a free commonwealth loving of boyes were profitable . a seventh from the consequence , as banishment is to be desired , because a banish'd man has choice of places to dwell in . an eighth from making that the cause which is not ; as , in demosthenes his government , the war began ; therefore demosthenes governed well . with the peloponnesian war began the plague , therefore pericles that perswaded that war , did ill . a ninth from the omission of some circumstance , as , helen did what was lawful , when she ran away with paris , because she had her fathers consent to choose her own husband ; which was true only during the time that she had not chosen . a tenth , from that which is probable in some case , to that mhich is probable simply ; as , 't is probable , he fore-saw , that if he did it , he should be suspected ; therefore 't is probable he did it not . from this place one may infer both ways that he did it not . for if he be not likely to do it , it may be thought he did it not : again , if he were likely to do it , it may be thought he did it not , for this , that he knew he should be suspected . upon this place was grounded the art which was so much detested in protagor●● , of making the better cause seem the worse ▪ and the worse the better . chap. xxvii . of the wayes to answer the arguments of the adversary . an argument is answered by an opposite syllogisme , or by an objection . the places of opposite syllogismes are the same with the places of syllogismes , or enthymemes : for a rhetorical syllogisme is an enthymeme . the places of objections are four . first , from the same , as , to the adversary that proves love to be good by an enthymeme , may be objected , that no want is good , and yet love is want ; or particularly thus ; the love of myrrha to her father was not good . the second from contraries : as , if the adversary say , a good man does good to his friends , an objection might be made , that then an evil man will do also evil to his friends . the third from similitude : as thus , if the adversary say , all men that are injured , do hate those that have injured them , it may be objected , that then , all men that had received benefits should love their benefactors , that is to say , be grateful . the fourth from the authority of famous men ; as when a man shall say , that drunken men ought to be pardoned those acts they do in their drunkenness , because they know not what they do ; the objection may be , that pittacus was of another mind , that appointed for such acts a double punishment ; one for the act , another for the drunkenness . and forasmuch as all enthymemes are drawn from probability , or example , or from a sign fallible , or from a sign infallible : an enthymeme from probability may be confuted really , by shewing that for the most part it falls out otherwise ; but apparantly , or sophistically , by shewing only that it does not fall out so alwayes ; whereupon the judge thinks the probability not sufficient to ground his sentence upon . [ the reason whereof is this , that the judge , while he hears the fact proved probable , conceives it as true . for the understanding has no object but truth . and therefore by and by , when he shall hear an instance to the contrary ; and thereby find that he had no necessity to think it true , presently changes his opinion , and thinks it false , and consequently not so much as probable . for he cannot at one time think the same thing both probable and false : and he that says a thing is probable , the meaning is , he thinks it true , but finds not arguments enough to prove it . ] an enthymeme from a fallible sign , is answered , by shewing the sign to be fallible . an enthymeme from an example , is answered , as an enthymeme from probability ; really , by shewing more examples to the contrary ; apparently , if he bring examples enough to make it seem not necessary . if the adversary have more examples than we , we must make appear , that they are not applycable to the case . an enthymeme from an infallible sign , if the proposition be true , is unanswerable . chap. xxviii . amplification and extenuation are not common places . enthymemes by which arguments are answered , are the same with those by which the matter in question is proved , or disproved . objections are not enthymemes . the first , that amplification and extenuation are not common places , appears by this , that amplification , and extenuation do prove a fact to be great , or little ; and are therefore enthymemes , to be drawn from common places , and therefore are not the places themselves . the second , that enthymemes , by which arguments are answered , are of the same kind with those by which the matter in question is proved , is manifest by this , that these infer the opposite of what was proved by the other . the third , that an objection is no enthymeme , is apparent by this , that an objection is no more but an opinion , example , or other instance , produced to make appear , that the adversaries argument does not conclude . thus much of examples , sentences , enthymemes , and generally of all things that belong to argumentation ; from what places they may be drawn , or answered . there remains elocution , and disposition to be spoken of in the next book . book . iii. chap. i. of the original of elocution and pronuntiation . three things being necessary to an oration , namely proof , elocution and disposition ; we have done with the first , and shall speak of the other two in that which follows . as for action , or pronunciation , so much as is necessary for an orator , may be fetcht out of the book of the art of poetry , in which we have treated of the action of the stage . for tragedians were the first that invented such action , and that but of late ; and it consisteth in governing well the magnitude , tone , and measure of the voice ; a thing less subject to art , than is either proof , or elocution . and yet there have been rules delivered concerning it , as far forth as serve for poetry . but oratorical action has not been hitherto reduced to art. and orators in the beginning , when they saw that the poets in barren and feigned arguments , nevertheless attained great reputation ; supposing it had proceeded from the choice , or connexion of words , fell into a stile , by imitation of them , approaching to verse , and made choice of words . but when the poets changed their stile , and laid by all words that were not in common use , the orators did the same , and lighted at last upon words , and a government of the voice and measures proper to themselves . seeing therefore pronuntiation , or action are in some degree necessary also for an orator , the precepts thereof are to be fetcht from the art of poetry . [ in the mean time this may be one general rule . if the words , tone , greatness of the voice , gesture of the body and countenance , seem to proceed all from one passion , then 't is well pronounced . otherwise not . for when there appear more passions than one at once , the mind of the speaker appears unnatural and distracted . otherwise , as the mind of the speaker , so the mind of the hearer always . ] chap. ii. of the choise of words and epithets . the vertues of a word are two ; the first , that it be perspicuous ; the second , that it be decent ; that is , neither above , nor below the thing signified ; or , neither too humble , nor too fine . perspicuous are all words that be proper . fine words are those , that are borrowed , or translated from other significations ; of which in the art of poetry . the reason why borrowed words please , is this . men are affected with words , as they are with men , admiring in both that which is forreign and new. to make a poem graceful , many things help ; but few an oration . for to a poet it sufficieth with what words he can to set out his poem : but an orator must not only do that : but also seem not to do it : for else he will be thought to speak unnaturally , and not as he thinks ; and thereby be the less believed ; whereas belief is the scope of his oration . the words that an orator ought to use are of three sorts . proper ; such as are received ; and metaphors . words taken from forraign languages , words compounded , and words new coyned are seldom to be used . synonimaes belong to poets , and equivocal words to sophisters . an orator , if he use proper words , and received , and good metaphors , shall both make his oration beautiful , and not seem to intend it ; and shall speak perspicuously . for in a metaphor alone there is perspicuity , novity , and sweetness . concerning metaphors the rules are these . . he that will make the best of a thing , let him draw his metaphor from somewhat that is better . as for example , let him call a crime , an error . on the other side , when he would make the worst of it , let him draw his metaphor from somewhat worse , as , calling error , crime . . a metaphor ought not to be so far fetcht , as that the similitude may not easily appear . . a metaphor ought to be drawn from the noblest things , as the poets do that choose rather to say , rosy-finger'd ; then red finger'd aurora . in like manner the rule of epithets is , that he that will adorn , should use those of the better sort ; and he that will disgrace should use those of the worse : as simonides being to write an ode in honour of the victory gotten in a course by certain mules , being not well paid , called them by their name [ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ] that signifies their propinquity to asses : but having received a greater reward , stiles them the sons of swift footed coursers . chap. iii. of the things that make an oration flat . the things that make an oration flat , or insipide , are four . . words compounded ; [ and yet a man may compound a word , when the composition is necessary , for want of a simple word ; and easie , and seldom used . ] . forraign words . as for example , such as are newly derived from the latine ; which though they were proper among them whose tongue it is , are forraign in another language : and yet these may be used , so it be moderately . . long , impertinent , and often epithets , . metaphors , indecent , and obscure . obscure they are , when they are far fetcht . indecent when they are ridiculous , as in comedies ; or too grave , as in tragedies . chap. iv. of a similitude . a similitude differs from a metaphor only by such particles of comparison as these , as ; even as ; so ; even so , &c. a similitude therefore is a metaphor dilated ; and a metaphor is a similitude contracted into one word . a similitude does well in an oration , so it be not too frequent ; for 't is poetical . an example of a similitude , is this of pericles ; that said in his oration , that the baeotians were like to so many oaks in a wood , that did nothing but beat one another . chap. v. of the purity of language . four things are necessary to make language pure . . the right rendring of those particles which some antecedent particle does require : as to a not only , a not also ; and then they are rendered right , when they are not suspended too long . . the use of proper words , rather than circumlocutions , unless there be motive to make one do it of purpose . . that there be nothing of double construction , unless there be cause to do it of purpose . as the prophets ( of the heathen ) who speak in general terms , to the end they may the better maintain the truth of their prophesies ; which is easier maintained in generals , than in particulars . for 't is easier to divine , whether a number be even or odd , than how many ; and that a thing will be , than what it will be . . concordance of gender , number , and person ; as not to say him for her ; man for men ; hath for have . in summ ; a mans language ought to be easie for another to read , pronounce , and point . besides , to divers antecedents , let divers relatives , or one common to them all , be correspondent : as , he saw the colour ; he heard the sound ; or he perceived both colour and sound : but by no means , he heard or saw both . lastly , that which is to be interposed by parenthesis , let it be done quickly : as , i purposed , having spoken to him ( to this , and to this purpose ) afterward to be gone . for to put it off thus ; i resolved , after i had spoken to him , to be gone ; but the subject of my speech was to this and this purpose , is vi●●ous . chap. vi. of the amplitude and tenuity of language . a man shall add amplitude , or dignity to his language , but by such means as these . . by changing the name with the definition , as occasion shall serve . as , whe● the name shall be indecent , by using the definition ; or contrary . . by metaphors . . by using the plural number for the singular . . by privative epithets . chap. vii . of the convenience or decency of elocution . elocutions are made decent , . by speaking feelingly ; that is , with such passion as is fit for the matter he is in ; as angerly in matter of injury . . by speaking as becomes the person of the speaker ; as for a gentleman to speak eruditely . . by speaking proportionably to the matter ; as of great affairs to speak in a high ; and of mean , in a low stile . . by abstaining from compounded , and from out-landish words ; unless a man speak passionately , and have already moved , and , as it were , inebriated his hearers . or ironically . it confers also to perswasion very much , to use these ordinary forms of speaking , all men know ; 't is confessed by all ; no man will deny , and the like . for the hearer consents , surprized with the fear to be esteemed the only ignorant man. 't is good also , having used a word that signifies more than the matter requires , to abstain from the pronunciation and countenance that to such a word belongs ; that the disproportion between it and the matter may the less appear . and when a man has said too much , it will shew well to correct himself : for he will get belief by seeming to consider what he says . [ but in this a man must have a care not to be too precise in shewing of this consideration . for the oftentation of carefulness is an argument oftentimes of lying ; as may be observed in such as tell particularities not easily observed , when they would be thought to speak more precise truth than is required . ] chap. viii . of two sorts of stiles . there be two sorts of stiles . the one continued or to be comprehended at once ; the other divided , or distinguished by periods . the first sort was in use with ancient writers ; but is now out of date . an example of this stile is in the history of herodotus ; wherein there is no period till the end of the whole history . in the other kind of stile , that is distinguished by periods , a period is such a part as is perfect in it self ; and has such length , as may easily be comprehended by the understanding . this later kind is pleasant ; the former unpleasant , because this appears finite , the other infinite : in this the hearer has always somewhat set out , and terminated to him ; in the other he fore-sees no end , and has nothing finished to him : this may easily be committed to memory , because of the measure and cadence ( which is the cause that verses be easily remembred ; ) the other not . every sentence ought to end with the period , and nothing to be interposed . period is either simple , or divided into parts . simple is that which is indivisible ; as , i wonder you fear not their ends , whose actions you imitate . a period divided , is that which not only has perfection and length convenient : for respiration , but also parts . as , i wonder you are not afraid of their ends , seeing you imitate their actions : where in these words , i wonder you are not afraid of their ends , is one colon , or part ; and in these , seeing you imitate their actions , another : and both together make the period . the parts , or members , and periods of speech ought neither to be too long , nor too short . too long are they , which are produced beyond the expectation of the hearer . too short , are they that end before he expects it . those that be too long , leave the hearer behind , like him that walking , goes beyond the usual end of the walk , and thereby out-goes him that walks with him . they that be too short , make the hearer stumble ; for when he looks far before him , the end stops him before he be aware . a period that is divided into parts , is either divided only ; or has also an opposition of the parts one to another . divided only is such as this ; this the senate knows ; the consul sees ; and yet the man lives . a period with opposition of parts , called also antithesis , and the parts antitheta , is when contrary parts are put together ; or also joyned by a third . contrary parts are put together , as here , the one has obtained glory , the other riches ; both by my benefit . antitheta are therefore acceptable ; because not only the parts appear the better for the opposition ; but also for that they carry with them a certain appearance of that kind of enthymeme , which leads to impossibility . parts , or members of a period , are said to be equal , when they have altogether , or almost equal number of syllables . parts , or members of a period , are said to be like , when they begin , or end alike : and the more similitudes , and the greater equality there is of syllables , the more graceful is the period . chap. ix . of those things that grace an oration , and make it delightful . forasmuch as there is nothign more delightful to a man , than to find that he apprehends and learns easily ; it necessarily follows , that those words are most grateful to the ear , that make a man seem to see before his eyes the things signified . and therefore forraign words are unpleasant , because obscure ; and plain words , because too manifest , making us learn nothing new : but metaphors please ; for they beget in us by the genus , or by some common thing to that with another , a kind of science : as when an old man is called stubble ; a man suddainly learns that he grows up , flourisheth , and withers like grass , being put in mind of it by the qualities common to stubble , and to old men. that which a metaphor does , a similitude does the same ; but with less grace , because with more prolixity . such enthymemes are the most graceful , which neither are presently very manifest , nor yet very hard to be understood ; but are comprehended , while they are uttering , or presently after , though not understood before . the things that make a speech graceful , are these ; antitheta , metaphors , and animation . of anitheta , and antithesis hath been spoken in the precedent chapter . of metaphors the most graceful is that which is drawn from proportion . [ aristotle ( in the chapter of his poetry ) defines a metaphor to be the translation of a name from one signification to another ; whereof he makes four kinds , . from the general to the particular , . from the particular to the general . . from one particular to another . . from proportion . ] a metaphor from proportion is such as this , a state without youth , is a year without a spring . animation is that expression which makes us seem to see the thing before our eyes ; as he that said , the athenians powred out their city into sicily , meaning , they sent thither the greatest army they could make ; and this is the greatest grace of an oration . if therefore in the same sentence there concur both metaphor , and this animation , and also antithesis , it cannot choose but be very graceful . that an oration is graced by metaphor , animation and antithesis , hath been said : but how 't is graced , is to be said in the next chapter . chap. x. in what manner an oration is graced by the things aforesaid . t is graced by animation , when the actions of living creatures are attributed to things without life ; as when the sword is said to devour . such metaphors as these come into a mans mind by the observation of things that have similitude and proportion one to another . and the more unlike , and unproportionable the things be otherwise , the more grace hath the metaphor . a metaphor without animation , adds grace then , when the hearer finds he learns somewhat by such use of the word . also paradoxes are graceful , so men inwardly do believe them : for they have in them somewhat like to those jests that are grounded upon the similitude of words , which have usually one sense , and in the present another ; and somewhat like to those jests which are grounded upon the deceiving of a mans expectation . and paragrams ; that is , allusions of words are graceful , if they be well placed ; and in periods not too long ; and with antithesis : for by these means the ambiguity is taken away . and the more of these ; namely , metaphor , animation , antithesis , equality of members a period hath , the more graceful it is . similitudes grace an oration , when they contain also a metaphor . and proverbs are graceful , because they are metaphors , or translations of words from one species to another . and hyperboles , because they also are metaphors : but they are youthful , and bewray vehemence ; and are used with most grace by them that be angry ; and for that cause are not comely in old men. chap. xi . of the difference between the stile to be used in writing , and the stile to be used in pleading . the stile that should be read ought to be more exact and accurate . but the stile of a pleader ought to be suted to action and pronuntiation . orations of them that plead , pass away with the hearing . but those that are written , men carry about them , and are considered at leasure ; and consequently must endure to be sifted and examined . written orations appear flat in pleading . and orations made for the barr , when the action is away , appear in reading insipide . in written orations repetition is justly condemned . but in pleadings , by the help of action , and by some change in the pleader , repetition becomes amplification . in written orations disjunctives do ill ; as , i came , i found him , i asked him : for they seem superfluous , and but one thing , because they are not distinguished by action . but in pleadings 't is amplification ; because that which is but one thing , is made to seem many . of pleadings , that which is judicial ought to be more accurate , than that which is before the people . and an oration to the people ought to be more accommodate to action , than a judicial . and of judicial orations , that ought to be more accurate , which is uttered to few judges ; and that ought to be more accommodate to action , which is uttered to many . as in a picture , the farther he stands off that beholds it , the less need there is that the colours be fine : so in orations , the farther the hearer stands off , the less need there is for his oration to be elegant . therefore demonstrative orations are most proper for writing , the end whereof is to be read. chap. xii . of the parts of an oration , and their order . the necessary parts of an oration are but two ; propositions , and proof ; which are as it were the probleme , and demonstration . the proposition is the explication , or opening of the matter to be proved . and proof is the demonstration of the matter propounded . to these necessary parts , are sometimes added two other , tho proeme and the epilogue , neither of which are any proof . so that in some , there be four parts of an oration ; the proeme , the proposition , or ( as others call it ) the narration , the proofs ( which contain confirmation , confutation , amplification , and diminution ; ) and the epilogue . chap. xiii . of the proem . the proem is the beginning of an oration , and , as it were , the preparing of the way before one enter into it . in some kinds of orations it resembles the prelude of musicians , who first play what they list , and afterwards the tune they intended . in other kinds it resembles the prologue of a play , that contains the argument . proems of the first sort , are most proper for demonstrative orations ; in which a man is free to fore-tell , or not , what points he will insist upon ; and for the most part 't is better not : because when a man has not obliged himself to a certain matter , digression will seem variety : but if he have ingaged himself , variety will be accounted digression . in demonstratives the matter of the proem consisteth in the praise or dispraise of some law or custom , or in exhortation , or dehortation ; or in something that serves to incline the hearer to the purpose . proems of the second kind are most proper for judicial orations . for as the prologue in a dramatick , and the exordium in an epique poem , setteth first in few words the argument of the poem : so in a judicial oration the orator ought to exhibit a model of his oration , that the mind of the hearer may not be suspended , and for want of fore-sight , err or wander . whatsoever else belongs to a proem , is drawn from one of these four ; from the speaker , from the adversary , from the hearer , or from the matter . from the speaker and adversary are drawn into proems such criminations and purgations as belong not to the cause . to the defendant 't is necessary in the proem to answer to the accusations of his adversary ; that those being cleared , he may have a more favourable entrance to the rest of his oration . but to the plaintife 't is better to cast his criminations all into the epilogue , that the judge may the more easily remember them . from the hearer and from the matter are drawn into the proem such things as serve to make the hearer favourable , or angry ; attentive , or nor attentive , as need shall require . and hearers use to be attentive to persons that are reputed good ; to things that are of great consequence , or that concern thomselves , or that are strange , or that delight . but to make the hearer attentive , is not the part of the proeme only , but of any other part of the oration , and rather of any other part , than of the proeme . for the hearer is every where more remiss than in the beginning . and therefore wheresoever there is need , the orator must make appear both the probity of his own person , and that the matter in hand is of great consequence ; or that it concerns the hearer ; or that it is new ; or that it is delightful . he that will have the hearer attentive to him , but not to the cause , must on the other side make it seem that the matter is a trifle , without relation to the hearer , common , and tedious . that the hearer may be favourable to the speaker , one of two things is required ; that he love him , or that he pity them . in demonstrative orations , he that praises shall have the hearer favourable if he think himself , or his own manners , or course of life , or any thing he loves , comprehended in the same praise . on the contrary , he that dispraises , shall be heard favourably , if the hearer find his enemies , or their courses , or any thing he hates , involv'd in the same dispraise . the proeme of a deliberative oration is taken from the same things , from which are taken the proemes of judicial orations . for the matter of a deliberative oration needeth not that natural proeme , by which is shewn what we are to speak of ; for that is already known : the proeme in these , being made only for the speakers , or adversaries sake ; or to make the matter appear great , or little , as one would have it , and is therefore to be taken from the persons of the plaintif or defendant ; or from the hearer , or from the matter , as in orations judicial . chap. xiv . places of crimination , and purgation . . one is from the removal of ill opinion in the hearer , imprinted in him by the adversary , or otherwise . . another from this , that the thing done is not hurtful , or not to him , or not so much , or not unjust , or not great , or not dishonourable . . a third from the recompence , as , i did him harm , but withal i did him honour . . a fourth from the excuse ; as , it was errour , mischance , or constraint . . a fifth from the intention ; as , one thing was done , another meant . . a sixth from the comprehension of the accuser ; as , what i have done , the accuser has done the same ; or his father , kinsman , or friend . . from the comprehension of those that are in reputation ; as , what i did , such , and such have done the same , who nevertheless are good men. . from comparison with such as have been falsly accused , or wrongfully suspected , and nevertheless found upright . . from recrimination ; as , the accuser is a man of ill life , and therefore not to be believed . . from that the judgment belongs to another place , or time ; as , i have already answered , or am to answer else-where to this matter . . from crimination of the crimination ; as , it serves only to ●e●vert indgment . . a twelfth , which is common both to crimination and purgation , and is taken from some sign ; as teucer is not to be believed , because his mother was priam's sister . on the other side , teucer is to be believed , because his father was priam's enemy . . a thirteenth , proper to crimination only , from praise and dispraise mixt ; as , to praise small things , and blame great ones ; or to praise in many words , and blame with effectual ones ; or to praise many things that are good , and then add one evil , but a great one . . a fourteenth , comming both to crimination and purgation , is taken from the interpretation of the fact : for he that purgeth himself interpreteth the fact always in the best sense ; and he that criminates , always in the worst ; as when vlysses said , diomedes chose him for his companion , as the most able of the grecians , to aid him in his exploit : but his adversary said , he chose him for his cowardize , as the most unlikely to share with him in the honour . chap. xv. of the narration . the narration is not always continued and of one piece ; but sometimes , as in demonstratives , interrupted , and dispersed through the whole oration . for there being in a narration something that falls not under art ; as namely , the actions themselves , which the orator inventeth not ; he must therefore bring in the narration of them where he best may . as for example , if being to praise a man , you would make a narration of all his acts immediately from the beginning , and without interruption , you will find it necessary afterwards to repeat the same acts again , while from some of them you praise his valour , and from others his wisdom ; whereby your oration shall have less variety , and shall less please . 't is not necessary always that the narration be short . the true measure of it must be taken from the matter that is to be laid open . in the narration , as oft as may be , 't is good to insert somewhat commendable in ones self , and blameable in ones adversary : as , i advised him , but he would take no counsel . in narrations , a man is to leave out whatsoever breeds compassion , indignation in the hearer besides the purpose ; as vlysses in homer , relating his travels to alcinous , to move compassion in him , is so long in it , that it consists of divers books : but when he comes home , tells the same to his wife in thirty verses , leaving out what might make her sad . the narration ought also to be in such words as argue the manners ; that is , some virtuous or vicious habit in him of whom we speak , although it be not exprest ; as , setting his arms a kenbold , he answered , &c. by which is insinuated the pride of him that so answered . in an oration a man does better to shew his affection than his judgment : this is , 't is better to say , i like this ; than to say , this is better . for by the one you would seem wise , by the other good . but favour follows goodness ; whereas wisdom procures envy . but if this affection seem incredible , then either a reason must be rendered , as did antigone . for when she had said , she loved her brother better than her husband , or children ; she added , for husband and children i may have more ; but another brother i cannot , my parents being both dead . or else a man must use this form of speaking ; i know this affection of mine seems strange to you ; but nevertheless it is such . for 't is not easily believed , that any man has a mind to do any thing that is not for his own good . besides in a narration , not only the actions themselves ; but the passions , and signs that accompany them , are to be discovered . and in his narration a man should make himself and his adversary be considered for such , and such , as soon , and as covertly as he can . a narration may have need sometimes not to be in the beginning . in deliberative orations ; that is , where soever the question is of things to come ; a narration , which is always of things past , has no place : and yet things past may be recounted , that men may deliberate better of the future : but that is not as narration , but proof ; for 't is example . there may also be narration in deliberatives in that part where crimination and praise come in : but that part is not deliberative , but demonstrative . chap. xvi . of proof , or confirmation , and refutation . proofs are to be applyed to something controverted . the controversie in judicial orations is , whether it has been done ; whether it has been hurtful ; whether the matter be so great , and whether it be just , or no. in a question of fact , one of the parties of necessity is faulty ( for ignorance of the fact is no excuse ) and therefore the fact is chiefly to be insisted on . in demonstratives , the fact for the most part is supposed : but the honour and profit of the fact are to be proved . in deliberatives , the question is , whether the thing be like to be , or likely to be so great ; or whether it be just ; or whether it be profitable . besides the application of the proof to the question , a man ought to observe , whether his adversary have lyed in any point without the cause . for 't is a sign he does the same in the cause . the proofs themselves are either examples , or enthymemes . a deliberative oration , because 't is of things to come , requireth rather examples , than enthymemes . but a judicial oration , being of things past , which have a necessity in them , and may be concluded syllogistically , requireth rather enthymemes . enthymemes ought not to come too thick together : for they hinder one anothers force by confounding the hearer . nor ought a man endeavour to prove every thing by enthymeme , least like some philosophers , he collect what is known , from what is less known . nor ought a man to use enthymemes , when he would move the hearer to some affection : for seeing divers motions do mutually destroy or weaken one another , he will lose either the enthymeme , or the affection that he would move . for the same reason , a man ought not to use enthymemes when he would express manners . but whether he would move affection , or insinuate his manners , he may withal use sentences . a deliberative oration is more difficult than a judicial , because 't is of the future , whereas a judicial is of that which is past , and that consequently may be known ; and because it has principles , namely the law ; and it is easier to prove from principles , than without . besides , a deliberative oration wants those helps of turning to the adversary , of speaking of himself ; of raising passion . he therefore that wants matter in a deliberative oration , let him bring in some person to praise or dispraise . and in demonstratives he that has nothing to say in commendation or discommendation of the principal party , let him praise or dispraise some body else , as his father , or kinsman , or the very vertues or vices themselves . he that wants not proofs , let him not only prove strongly , but also insinuate his manners : but he that has no proof , let him nevertheless insinuate his manners . for a good man is as acceptable , as an exact oration . of proofs , those that lead to an absurdity , please better than those that are direct or ostensive ; because from the comparison of contraries , namely , truth and falsity , the force of the syllogisme does the better appear . confutation is also a part of proof . and he that speaks first , puts it after his own proofs , unless the controversie contain many and different matters . and he that speaks last , puts it before . for 't is necessary to make way for his own oration , by removing the objections of him that spake before . for the mind abhors both the man , and his oration , that is damned before hand . if a man desire his manners should appear well , ( least speaking of himself he become odious , or troublesome , or obnoxious to obtrectation ; or speaking of another , he seem contumelious , or scurrilous ) let him introduce another person . last of all , least he cloy his hearer with enthymemes , let him vary them sometimes with sentences ; but such as have the same force . as here is an enthymeme . if it be then the best time to make peace when the best conditions of peace may be had , than the time is now , while our fortune is entire . and this is a sentence of equal force to it . wise men make peace , while their fortune is entire . chap. xvii . of interrogations , answers , and jests . the times wherein 't is fit to ask ones adversary a question are chiefly four . . the first is , when of two propositions that conclude an absurdity , he has already uttered one ; and we would by interrogation draw him to confess the other . . the second , when of two propositions that conclude an absurdity , one is manifest of it self , and the other likely to be fetch'd out by a question ; then the interrogation will be seasonable ; and the absurd conclusion is presently to be inferr'd , without adding that proposition which is manifest . . the third , when a man would make appear that his adversary does contradict himself . . the fourth , when a man would take from his adversary such shifts as these , in some sort 't is so ; in some sort 't is not so . out of these cases 't is not fit to interrogate . for he whose question succeeds not , is thought vanquished . to equivocal questions a man ought to answer fully , and not to be too brief . to interrogations which we fore-see tend to draw from us an answer , contrary to our purpose , we must , together with our answer , presently give an answer to the objection which is implyed in the question . and where the question exacteth an answer that concludeth against us , we must together with our answer presently distinguish . jests are dissolved by serious and grave discourse : and grave discourse is deluded by jests . the several kinds of jests are set down in the art of poetry . whereof one kind is ironia , and tends to please ones self . the other is scurrility , and tends to please others . the latter of these has in it a kind of baseness : the former may become a man of good breeding . chap. xviii . of the epilogue . the epilogue must consist of one of these four things . either of inclining the judg to favour his own , or disfavour the adversaries side : for then when all is said in the cause , is the best season to praise , or dispraise the parties . or of amplification or diminution . for when it appears what is good or evil , then is the time to shew how great , or how little that good or evil is . or in moving the judge to anger , love , or other passion . for when 't is manifest of what kind , and how great the good or evil is , then it will be opportune to excite the judge . or of repetition , that the judge may remember what has been said . repetition consisteth in the matter , and the manner . for the orator must shew , that he has performed what he promised in the beginning of his oration , and how : namely , by comparing his arguments one by one with his adversaries , repeating them in the same order they were spoken . finis . the art of rhetorick plainly set forth ; with pertinent examples for the more easie understanding and practice of the same . by tho. hobbes , of malmsbury . london . printed , for w. crook . . the art of rhetorick . rhetorick is an art of speaking finely . it hath two parts . . garnishing of speech , called elocution . . garnishing of the manner of utterance called pronunciation . garnishing of speech is the first part of rhetorick , whereby the speech it self is beautified and made fine . it is either , . the fine manner of words , called a trope , or , . the fine shape or frame of speech , called a figure . the fine manner of words is a garnishing of speech , whereby one word is drawn from his first proper signification , to another ; as in this sentence : sin lyeth at the door : where sin is put for the punishment of sin adjoyned unto it : lyeth at the door signifieth at hand ; as that which lyeth at the door , is ready to be brought in . this changing of words was first found out by necessity , for the want of words ; afterward confirmed by delight , because such words are pleasant and gracious to the ear . therefore this change of signification must be shamefac'd , and , as it were , maidenly , that it may seem rather to be led by the hand to another signification , to be driven by force unto the same : yet sometimes this fine manner of speech swerveth from this perfection , and then it is , either . the abuse of this fine speech , called katachresis , or . the excess of this fineness , call'd hyperbole . be not too just , nor too wicked : which speech , although it seem very hard , yet it doth not , without some fineness of speech , utter thus much , that one seek not a righteousness beyond the law of god ; and that when none can live without all sin , yet that they take heed that sin bear not dominion over them , as , my tears are my meat day and night . those that hate me are mo in number , than the hairs of my head. both which do utter by an express of speech , a great sorrow , and a great number of enemies . the abuse of speech , is , when the change of speech is hard , strange , and unwonted , as in the first example . the excess of speech is , when the change of signification is very high and lofty , as in the second example , and ps. . . but the excellency , or fineness of words , or tropes , is most excellent , when divers are , shut up in one ; or , continued in many . an example of the first sort is in the kings : i pray thee , let me have a double portion of thy spirit : where by spirit , is meant the gift of the spirit ; and by thy spirit , the gift of the spirit like to thine . the continuance of tropes , called an allegorie , is , when one kind of trope is so continued ; as , look with what kind of matter it be begun , with the same it be ended . so in the psal. the care of god towards his church , is set forth in the words proper to a shepherd . so in the whole book of canticles , the sweet conference of christ and his church , is set down by the words proper to the husband and the wife . so old age is set down by this garnishing of speech , eccles. . , . hitherto of the properties of a fine manner of words , called a trope . now the divers sorts do follow . they are those which note out , . no comparison , and are with some comparison ; or , . no respect of division , or some respect . the first is double : . the change of name , called a metonymie . . the mocking speech , called an ironie . the change of name , is where the name of a thing , is put for the name of a thing agreeing with it . it is double , . when the cause is put for the thing caused , and contrariwise , . when the thing to which any thing is adjoyned , is put for the thing adjoyned ; and contrariwise . the change of name of the cause , is when , either the name of the maker , or the name of the matter , is put for the thing made . of the maker , when the finder out , or the author of the thing , or the instrument whereby the thing is done , is put for the thing made . so moses is put for his writings : so love is put for liberality , or bestowing benefits , the fruit of love : so faith the cause , is put for religious serving of god , the thing caused . rom. . so the tongue , the instrument of speech , is put for the speech it self . rule thy tongue , james . of the matter : thou art dust , and to dust shalt thou return ; that is , one made of dust. now on the other side , when the thing caused , or the effect is put for any of these causes . so the gospel of god is called the power of god to salvation ; that is , the instrument of the power of god. so love is said to be bountiful ; because it causeth one to be bountiful . s. paul saith , the bread that we break , is it not in the communion of the body and blood of christ ? that is , an instrument of the communion of the body of christ. so , the body is said to be an earthly tabernacle : that is , a tabernacle made of earth . the change of name , or metonymie , where the subject , or that which hath any thing adjoyned , is put for the thing adjoyned , or adjoynt . so the place is put for those , or that in the place : set thine house in an order : that is , thy houshold matters . it shall be easier for sodom and gomorra : that is , the people in sodom and gomorra . so moses chair is put for the doctrine , taught in moses chair . so , all jericho and jerusalem came out : that is , all the men in jericho and jerusalem . so , before , sin was put for the punishment of sin : let his blood rest upon us and our children : that is the punishment which shall follow his death . so christ said , this is my body , that is , a sign or sacrament of my body . this wine is the new testament in my blood ; that is , a sign or seal of the new testament in my blood. so john saith , he saw the spirit descending in the likeness of a dove : that is , the sign of the spirit . on the other side , the adjunct is put for the thing to which it is adjoyned . as christ is called our hope . tti. that is , on whom our hope did depend : so , we are justified by faith , that is , by christ , applyed by faith : so , love is the fulfilling of the law , that is , those things to which it is adjoyned . hope for the things hoped for , rom. . . so in the epist. to the eph. the dayes are evil : that is , the manner , conversation , and deeds of men in the dayes . hitherto of the metonymie , or change of name . now followeth the mocking speech , or ironie . chap. ii. the mocking trope is , when one contrary is signified by another , as god said , man is like to one of us . so christ saith , sleep on ; and yet by and by , arise , let us go : so paul saith , you are wise , and i am a fool. this trope is perceived , either by the contrariety of the matter , or the manner of utterance , or both : so elias said to the prophets of baal , cry a loud , &c. so the jews said unto christ ; hail , king of the jews . hitherto appertaineth the passing by a thing , which yet with a certain elegancy noteth it : so philemon , . that i say not , thou owest thy self unto me . hitherto of the fineness of words which respect no division . now followeth that which respecteth division , called synechdoche . a synechdoche is when the name of the whole is given to the part ; or the name of the part to the whole . and it is double ; . when the whole is put for the member , and contrarily . . when the general , or whole kind is put for the special , or contrarily . so s. john , not only for our sins , but for the sins of the whole world. so righteousness , a member of goodness , is put for all goodness : so unrighteousness , is put for all manner of sins . examples of the second sort , as these : so israel is put for those of juda sometimes : so nations for the heathen : a minister of christ , for an apostle of christ , rom. . a minister put for a distributer , rom. . on the other side , one sort or special is put for the whole sort , or general , in the examples following . in the lords prayer , bread , one help of life , is put for all helps : this day , one time , for all times : so solomon saith . the thing of the day in his day ; that is , the thing of the time , in his time . so sometimes less is spoken , and yet more is understood ; which is called diminution , or meiosis : as james saith , to him that knoweth how to do well , and doth not , it is sin : that is , a great sin . so our saviour christ saith , if they had not known , they had had no sin : that is , no such great sin as they have now . likewise the denial by comparison : so solomon saith , receive my words , and not silver : that is , my words rather than silver : so paul saith , i was sent to preach , and not to baptise : that is , not so much to baptise , as to preach . hitherto of the fineness of words , which note out no comparison . now followeth the fineness of words which noteth out comparison , called a metaphor . chap. iii. a metaphor is when the like is signified by the like : as cor. the apostle saith , doctrine must be tryed by fire ; that is , the evidence of the word , spirit , trying doctrine , as fire doth metals . so christ is said to baptize with fire : where fire is put for the power of the holy ghost , purging as fire : so christ saith , none shall enter into the kingdom of god , but he that is born of the holy ghost and water : so paul calleth himself the father of the corinths , who said , that he begat them in christ : so he calleth timothy and titus his natural sons in the faith. hitherto of a trope , or garnishing of speech in one word , where the metaphor is most usual ; then the change of name ; then the synechdoche ; and last of all , the ironie . now followeth the fine frame or shape of speech ; called a figure . a figure is a garnishing of speech ; wherein the course of the same is changed from the more simple and plain manner of speaking , unto that which is more full of excellency and grace . for as in the fineness of words , or a trope , words are considered asunder by themselves : so in the fine shape or frame of speech or a figure , the apt and pleasant joyning together of many words is noted . the garnishing of the shape of speech or a figure , is garnishing of speech in words , or in a sentence . the garnishing of speech in words , called figura dictionis , is wherein the speech is garnished by the pleasant and sweet sound of words joyned together . this is either , . in the measure of sounds ; or . in the repetition of sounds . the measure of sounds is belonging either to , . poets , with us called rhymers ; or , . orators , with us called eloquent pleaders . the first is the measure of sounds by certain and continual spaces : and it is either , . rhyme ; or , . verse . rhyme is the first sort , containing a certain measure of syllables ending alike , and these in the mother tongues are most fit for psalms , songs , or sonnets . verses are the second sort , containing certain feet fitly placed . a foot is a measure framed by the length and shortness of syllables : for the several sorts whereof , as also of the verses of them , because we have no worthy examples in our english tongue , we judge the large handling of them should be more curious than necessary . the measure of sounds belonging to orators is that which , as it is not uncertain , so it differeth altogether from rhime and verse , and is very changeable with it self . therefore in that eloquent speech you must altogether leave rhime and verse , unless you alledge it for authority and pleasure . in the beginning of the sentence little care is to be had , in the middle least of all , and in the end chiefest regard is to be had , because the fall of the sentence is most marked , and therefore lest it fall out to be harsh and unpleasant both to the mind and ear , there must be most variety and change . now this change must not be above six syllables from the end , and that must be set down in feet of two syllables . and thus much of garnishing of speech by the measure of sounds , rather to give some taste of the same to the readers , than to draw any to the curious and unnecessary practise of it . now followeth the repeating of sounds . chap. iv. repetition of sounds is either of the like , or the vnlike sound . of the like , is either continued to the end of , or broken off from the same , or a diverse sentence . continued to the end of the same sentence is , when the same sound is repeated without any thing coming between , except a parenthesis ; that is , something put in , without the which , notwithstanding the sentence is full . and it is a joyning of the same sound , as rom. . as vnrighteousness , fornication , wickedness . and in the prayer of christ , my god , my god. from men by thine hand , o lord , from men , &c. psal. . continued in a diverse sentence is , either a redoubling , called anadyplosis ; or a pleasant climing , called clymax . redoubling is when the same sound is repeated in the end of the former sentence , and the beginning of the sentence following . as , psal. . . the lord also will be a refuge to the poor , a refuge , i say , in due time . psal. . . for this god is our god. but more plain in psal. . as we have heard , so have we seen in the city of our god. god will establish it for ever . a pleasant climing is a redoubling continued by divers degrees or steps of the same sounds : as rom. . . if we be children , we be heirs , even heirs of god , annexed with christ. rom. . . whom he predestinated , them also he called ; and whom he called , them also he justified ; and whom he justified , them also he glorified . also rom. . . . and hitherto of the same sound continued to the end . now followeth the same sound broken off . chap. v. the same sound broken off is a repetition of the same in the beginning ; or in the end . in the beginning it is called anaphora , a bringing of the same again ; as rom. . . nor death , nor life , nor angels , &c. nor any other creature shall be able to separate us &c. so likewise ephes. . . some to be apostles , some preachers , &c. so gal. nor jew , nor gentile , &c. so likewise hebr. . . . repetition of the same sound in the end is called epistrophe , a turning to the same sound in the end . so ezech. behold greater abominations than these . lament . . . let us lift up our hearts with our hands unto god in the heavens ; we have sinned , and have rebelled therefore thou hast not spared . when both of these are joyned together , it is called a coupling or symplote . as , cor. . . to the . but in all things we approve our selves , as the ministers of god , in much patience , in afflictions , &c. see also cor. . . hitherto of the repetitions in the same place . now of those that do interchange their place . they are either epanalepsis , which signifieth to take back ; or epanados which signifieth a turning to the same tune . the first is when the same sound is repeated in the beginning and the ending , as my son absolom , my son , sam. . . epanados is when the same sound is repeated in the beginning and the middle , in the middle and the end , ezech. . . i will prepare thee unto blood , and blood shall pursue thee : except thou hate blood , even blood shall pursue thee . and thes. . so that he that doth sit as god , in the temple of god , sheweth himself that he is god. hitherto of the repetition of those sounds which are like . now of those that are unlike . chap. vi. unlike a small changing of the name , as paronomasia . a small changing of the end or case , as polypto●on . a small change of name is , when a word by the change of one letter or syllable , the signification also is changed , as , patience , experience . rom. . . . we walk after the flesh , not war in the flesh . so by honour and dishonour , as unknown and yet known . a small changing of the end or case , is when words of the same beginning rebound by divers ends : christ being raised from the dead , dyeth no more , death hath no more power over him . he that doth righteousness is righteous . if ye know that he is righteous , know ye that he that doth righteously , is born of him . and of both these there are many in the scripture , but the translations cannot reach them . hitherto of the garnishing of the shape of speech in words . now followeth the garnishing of the shape of speech in a sentence . chap. vii . garnishing of the frame of speech in a sentence , is a garnishing of the shape of speech , or a figure ; which for the forcible moving of affections , doth after a sort beautifie the sense and very meaning of a sentence . because it hath in it a certain manly majesty , which far surpasseth the soft delicacy or dainties of the former figures . it is either the garnishing of speech alone ; or with others . the garnishing of speech alone , is when as the sentence is garnished without speech had to other . and it is either in regard of the matter ; or of the person . in regard of the matter , it is either . a crying out , called exclamation ; or . a pulling or calling back of himself , called revocation . a crying out or exclamation is the first , which is set forth by a word of calling out : sometimes of wonder , as , rom. . o the depth of the judgments of god! psal. . o lord , how excellent is thy name ! sometimes of pity ; also these words , behold , alas , oh , be signs of this figure : as , o jerusalem , jerusalem , which stonest the prophets . sometimes of desperation ; as , my sin is greater than can be forgiven . behold , thou drivest me out , &c. sometimes of wishing : as , o lord of hosts , how amiable are thy tabernacles ? sometimes of disdaining : as , rom. . in the end , o miserable wretch that i am , who shall deliver me from this body of sin ? sometimes of mocking : as they which said to our saviour christ , ah , thou that , &c. sometimes of cursing and detestation , as in david , let their table be made a snare , and bow down their back always . also when this figure is used in the end of a sentence , it is called a shooting out of the voice , or epiphonema ; as when the sins of jezabel were spoken against , this is added at the end , seemed it a little to her to do thus and thus . so after the high setting forth of the name of god , david shutteth up his praise with this : blessed be his glorious name , and let all the earth be filled with his glory . sometimes here is used a certain liberty of speech , wherein is a kind of secret crying out : as peter , act. . saith : ye men of israel , hear these words . and paul , cor. . would to god you could suffer a little my foolishness , and indeed ye suffer me . thus much of crying out . now followeth the figure of calling back , or revocation . revocation is when any thing is called back , and it is as it were a cooling and quenching of the heat of the exclamation that went before . and this is either a correction of ones self , called epanorthrosis ; a holding of ones peace , called aposiopesis . epanorthrosis is correction , when something is called back that went before : as paul correcteth his doubtfulness of agrippa's belief , when he saith , believest thou king agrippa , i know thou believest . so , cor. . i laboured more abundantly than they all , yet not i , &c. a keeping of silence or aposiopesis is , when the course of the sentence bygon is so stayed , as thereby some part of the sentence not being uttered , may be understood . so our saviour christ saith , my soul is heavy : what shall i say ? john . . thus much of a figure garnishing the speech alone in regard of the matter . now followeth the garnishing of the speech alone in regard of the person . chap. viii . garnishing of the speech alone in regard of the person is double . either in turning to the person , called apostrophe , or feigning of the person , called , prosopopoeia . apostrophe or turning to the person , is when the speech is turned to another person , than the speech appointed did intend or require . and this apostrophe or turning is diversly seen , according to the diversity of persons . sometimes it turneth to a mans person ; as david in the psalm , where having gathered arguments of his safety , turneth hastily to the wicked , saying , away from me , all ye workers of iniquity , for the lord hath heard the voice of my petition . sometimes from a man to god , as ps. . david being dismayed with the number of his enemies , turneth himself to god , saying : but thou art my buckler , &c. sometimes to unreasonable creatures without sense . esai . . & esai . . . prosopopoeia or a feigning of the person , is whereby we do feign another person speaking in our speech ; and it is double ; imperfect , and perfect . imperfect is when the speech of another person is set down lightly and indirectly , as in the psal. . david , bringeth in the wicked , who say unto my soul , fly as the bird unto yonder hill . a perfect prosopopoeia is when the whole feigning of the person is set down in our speech , with a fit entring into the same , and a leaving it off . so wisd. pro. . where the entrance is in the first verses , her speech in the rest of the chapter . hitherto of the figures of sentences concerning one speaking alone . now follow the other , which concern the speeches of two . chap. ix . they which concern the speeches of two , are either in asking ; or in answering . that of asking , is either in deliberation ; or , in preventing an objection . deliberation is when we do ever now and then ask , as it were , reasons of our consultation , whereby the mind of the hearers wavering in doubt , doth set down some great thing . this deliberation is either in doubting ; or in communication . a doubting is a deliberating with our selves , as paul. . phil. . doubting whether it were better to dye than to live , he garnisheth his speech on this manner : for i am greatly in doubt on both sides , desiring to be loosed , and to be with christ , which is best of all : nevertheless , to abide in the flesh is more needful for you . communication is a deliberation with others . gal. . , . o foolish galatians , who hath bewitched you , &c. and hitherto of the figure of speech between two , called deliberation . now followeth the figure of speech between two , called the preventing of an objection , or occupation . occupation is when we do bring an objection , and yield an answer unto it : therefore this speech between two in the first part , is called the setting down of the objection or occupation . in the latter part , an answering of the objection , or the subjection : as rom. . what shall we say then ? shall we continue still in sin that grace may abound ? in which words is set down the objection : the answering in these words , god forbid . and here this must be marked , that the objection is many times wanting , which must be wisely supplyed by considering the occasion and answer of it : as , tim. . they will marry , having condemnation . now lest any might say , what , for marrying ? he answereth : no , for denying their first faith. hitherto of the figures of asking . now followeth the figures of answering . they are either in suffering of a deed , called permission ; or , granting of an argument , called concession . suffering of a deed or permission is , when mockingly we give liberty to any deed ; being never so filthy , as rev. let him that is filthy be filthy still . and cor. . if any be ignorant , let him be ignorant . concession or granting of an argument is , when an argument is mockingly yielded unto , as , eccle. . rejoyce , o young man in thy youth , and let thy heart chear thee , &c. although the rules of sophistry be needless for them that be perfect in logick ; yet because the knowledge of them bringeth some profit to young beginners , both for the ready answering of the subtil arguments , and the better practising of logick and rhetorick , we have thought good to turn it into the english tongue . sophistry is the feigned art of enleches , or coloured reasons . a colourable reason , or elench , is a shew of reason to deceive withal . it is either when the deceit lyeth in the words ; or in the default of logick , called a sophism . in words is , either when the deceit lyeth in one word ; or in words joyned together . if it were , it should be , whosoever . in one word , is either the darkness of a word ; or , the doubtfulness of a word . the darkness of a word , or an insolencie deceiveth , when by a reason the meaning is not understood , whether the strangeness be through the oldness , newness , or swelling vanity of the words ; and of the last sort , is that spoken of in pet. . . by this fallacie the papists conclude , the fathers to be on their side , for deserving by good works . whosoever saith mans merits are crowned , they say mans works do deserve . but the fathers say , mans merits are crowned . therefore the fathers say , mans works do deserve . where merits is an old word , put for any works done under the hope of reward whether it come by desart , or freedom of promise . doubtfulness of a word , likeness of name , is either called homonymia ; or by a trope or fineness of speech . the likeness of name , or homonymia , is when one word is given to signifie divers things : as , he that believeth shall be saved . the hypocrites to whom our saviour christ would not commit himself , believed , therefore they shall be saved . where faith doth note out both a justifying faith , and a dead faith. doubtfulness by a trope , is when a word is taken properly , which is meant figuratively , or contrarily : as , that which christ saith is true . christ saith that bread is his body . therefore it is true . where by body is meant the sign or sacrament of his body . unto the first , a perfect logician would answer , that the proposition is not an axiome necessarily true , according to the rule of truth , because of the doubtfulness of the old and new signification of merit . and if the word be far worn out of use , that it be not understood , then the answer must be , i understand it not , or put your axiome in plain words . to the second , he would answer , that the proposition or first part , is not according to the rule of righteousness , because the proper subject and adjunct are not joyned together : which hath justifying faith , or believing sincerely , shall be saved ; and then the assumption being in the same sense inferred , is false . unto the third he would answer , that the assumption is not necessarily true , because if the word body be taken properly , it is not then true that is set down : but if it be taken figuratively , it is true , and therefore would bid him make the assumption necessarily true , and then say , christ saith in proper words , it is my body ; and then it is false . hitherto of the fallacies in single words . now of those that are joyned together . it is either amphibolia , or the doubtfulness of speech : or , exposition , or unapt setting down of the reason . the first is , when there is doubtfulness in the frame of speech ; as thus , if any obey not our word by a letter , note him : where some refer by a letter , to the first part of the sentence , and some to the latter , where the signification of the word , and right pointing doth shew , that it must be referred to the first . the answer is , that the right and wise placing of the sentence is perverted . unapt setting down of the reason , is , when the parts of the question and the reasons intreated , is not set down in fit words : as , all sin is evil . every child of god doth sin . therefore every child of god is evil . here the answer according to logick , is that the assumption doth not take the argument out of the proposition , but putteth in another thing , and so it is no right frame of concluding , as appeareth by the definition of the assumption . hitherto of the deceits of reason which lye in words . now of the default of logick , called sophisme . it is either general , or special . the general are those which cannot be referred to any part of logick . they are either begging of the question , called the petition of the principle , or bragging of no proof . begging of the question is when nothing is brought to prove but the question , or that which is doubtful : as , that righteousness which is both by faith and works , doth justifie . but this righteousness , is inherent righteousness : ergo. here the proposition in effect is nothing but a question . if together with the blood of christ we must make perfect satisfaction for our sins , before we come to heaven . then there must be purgatory for them that die without perfection . but the first is so : ergo. where the argument they bring is as doubtful , and needeth as much proof as the question . the answer is this out of the definition of the syllogisme , that there is no new argument invented , therefore it cannot be a certain frame of concluding . bragging of no proof , is when that which is brought is too much , called redounding . it is either impertinent to another matter called heterogenium ; or a vain repetition , called tautologia . impertinent , or not to the purpose , is when any thing is brought for a proof , which is nothing near to the matter in hand , whereunto the common proverb giveth answer ; i ask you of cheese , you answer me of chalk . a vain repetition is , when the same thing in effect , though not in words , is repeated ; as they that after long time of prayer say , let us pray . and this fallacie our saviour christ condemneth in prayer , mat. . and this is a fault in method . special are those which may be referred to certain parts of logick , and they are of two sorts . such as are referred to the spring of reasons , called invention , or to judgment . those referred to invention are , when any thing is put for a reason , which is not , as no cause for a cause , no effect for an effect , and so of the rest . in the distribution this is a proper fallacie , when any thing simply or generally granted , thereby is inferred a certain respect or special not meant nor intended : as , he that saith , there are not seven sacraments , saith true . he that saith , there are only three , saith , there are not seven . therefore he that saith , there are three , saith true . the right answer is , that the proposition is not necessarily true , for there may be a way to say , there are not seven , and yet affirm an untruth . fallacies of judgment are those that are referred to the judgment of one sentence , or of more . of one sentence , either to the proprieties of an axiome ; or to the sorts . to the proprieties , as when a true is put for a false , and contrarily : and affirmative for a negative , and contrarily . so some take the words of saint john , i do not say concerning it , that you shall not pray , for no denyal ; when as it doth deny to pray for that sin . to the sorts are referred , either to the simple , or compound . the first when the general is taken for the special , and contrarily . so the papists by this fallacy do answer to that general saying of paul ; we are justified by faith without the works of the law. which they understand of works done before faith , when that was never called in doubt . the fallacies which are referred to a compound axiome , are those which are referred either to a disjoyned , or knitting axiome . to a disjoyned axiome when the parts indeed are not disjoyned : as , solomon was either a king , or did bear rule . to a knitting axiome is , when the parts are not necessarily knit together , 〈◊〉 if rome be one fire , the popes chair is burn● and hitherto of the first sort of fallacie referred to judgment . now followeth the second . and they be either those that are refer●red to a syllogisme ; or to method . and they again are general , and special general which are referred to the general properties of a syllogisme . it is either when all the parts are denyed or are particular . all parts denyed : as , no pope is a devil . no man is a devil . therefore . no man is a pope . and this must be answered , that it is no● according to the definition of a negativ● syllogisme , which must have always one affirmative . all particular : as , some unlawful thing must be suffered , 〈◊〉 namely that which cannot be taken away . the stews in some unlawful thing . therefore the stews must be suffered . this is answered by the definition of ● special syllogism , which is that hath one part general . the special are those which are simple , or compound . the simple is of two sorts . the first is more plain . the second less plain . more plain is when the assumption is denyed , or the question is not particular : as , every apostle may preach abroad : some apostle is not a pope , therefore some pope may not preach abroad . also , every pope is a lord : some pope may give an universal licence . therefore every lord may give an universal licence . less plain hath one fallacy in common , when the proposition is special . as , some player is a rogue : every vagabond is rogue , therefore every player is a vagabond . also , some player is a rogue : every vagabond is a player . therefore every player is a rogue . the fallacie of the first kind is when all the parts be affirmative : as , all pauls bishops were ordained for unity . all arch-bishops be ordained for unity . therefore all arch-bishops are pauls bishops . the fallacie of the second kind is when the assumption is denyed : as , every puritane is a christian. no lord bishop is a puritane , therefore no lord bishop is a christian. hitherto of the fallacies referred to a simple syllogism . now follow those which are referred to a compound , which are those which are referred either to the connexive , or to the disjoyned . of the first sort one is when the first part or antecedent is denyed , that the second or consequent may be so likewise : as , if any man have two benefices , he may escape unpunished at the bishops hands . but he may not have two benefices , therefore he may not escape unpunished at the bishops hands . the second part is affirmed , that the first may be so also . as , if every ignorant minister were put out of the church , and a preacher in his place , we should have good order . but we have good order , therefore every ignorant minister is put out of the church ; and a preacher in his place . of those referred to the disjoyned , the first is , when all the parts of the disjunction or proposition are not affirmed : as , every ignorant minister is to be allowed , or not . but he is not . therefore he is . the second kind is when the second part of the copulative negative axiome is denyed , that the first may be so ; as , a non-resident , is either a faithful , or unfaithful minister . but he is unfaithful , ergo , &c. and thus much of the fallacies in a syllogism . the fallacie in method is when , to deceive withal , the end is set in the beginning , the special before the general , good order be gone , confounded : and finally when darkness , length and hardness is laboured after . pinis . a dialogue between a phylosopher and a stvdent , of the common-laws of england . of the law of reason . law. what makes you say , that the study of the law is less rational , than the study of the mathematicks ? phylosoph . i say not that , for all study is rational , or nothing worth ; but i say that the great masters of the mathematicks do not so often err as the great professors of the law. law. if you had applyed your reason to the law , perhaps you would have been of another mind . ph. in whatsoever study , i examine whether my inference be rational , and have look't over the titles of the statutes from magna charta downward to this present time . i left not one unread , which i thought might concern my self , which was enough for me that meant not to plead for any but my self . but i did not much examine which of them was more , or less rational ; because i read them not to dispute , but to obey them , and saw in all of them sufficient reason for my obedience , and that the same reason , though the statutes themselves were chang'd , remained constant . i have also diligently read over littleton's book of tenures , with the commentaries thereupon of the renowned lawyer sir ed. coke , in which i confess i found great subtility , not of the law , but of inference from law , and especially from the law of humane nature , which is the law of reason : and i confess that it is truth which he sayes in the epilogue to his book ; that by arguments and reason in the law , a man shall sooner come to the certainty and knowledge of the law : and i agree with sir edw. coke , who upon that text farther ; that reason is the soul of the law , and upon sect . . nihil quod est rationi contrarium est licitum ; that is to say , nothing is law that is against reason : and that reason is the life of the law , nay the common law it self is nothing else but reason . and upon sect. . aequitas est perfecta quaedam ratio , quae jus scriptum interpretatur & emendat , nulla scriptura comprehensa , sed solus in vera ratione consistens . i. e. equity is a certain perfect reason that interpreteth and amendeth the law written , it self being unwritten , and consisting in nothing else but right reason . when i consider this , and find it to be true , and so evident as not to be denyed by any man of right sense , i find my own reason at a stand ; for it frustrates all the laws in the world : for upon this ground any man , of any law whatsoever may say it is against reason , and thereupon make a pretence for his disobedience . i pray you clear this passage , that we may proceed . la. i clear it thus out of sir edw. coke . i inst. sect. . that this is to be understood of an artificial perfection of reason gotten by long study , observation and experience , and not of every mans natural reason ; for nemo nascitur artifex . this legal reason is summa ratio ; and therefore if all the reason that is dispersed into so many several heads were united into one , yet could he not make such a law as the law of england is , because by so many successions of ages it hath been fined and refined by an infinite number of grave and learned men. ph. this does not clear the place , as being partly obscure , and partly untrue , that the reason which is the life of the law , should be not natural , but artificial i cannot conceive . i understand well enough , that the knowledge of the law is gotten by much study , as all other sciences are , which when they are studyed and obtained , it is still done by natural , and not by artificial reason . i grant you that the knowledge of the law is an art , but not that any art of one man , or of many how wise soever they be , or the work of one and more artificers , how perfect soever it be , is law. it is not wisdom , but authority that makes a law. obscure also are the words legal reason ; there is no reason in earthly creatures , but humane reason ; but i suppose that he means , that the reason of a judge , or of all the judges together ( without the king ) is that summa ratio , and the very law , which i deny , because none can make a law but he that hath the legislative power . that the law hath been fined by grave and learned men , meaning the professors of the law is manifestly untrue , for all the laws of england have been made by the kings of england , consulting with the nobility and commons in parliament , of which not one of twenty was a learned lawyer . law. you speak of the statute law , and i speak of the common law. ph. i speak generally of law. la. thus far i agree with you , that statute law taken away , there would not be left , either here , or any where , any law at all that would conduce to the peace of a nation ; yet equity , and reason which laws divine and eternal , which oblige all men at all times , and in all places , would still remain , but be obeyed by few : and though the breach of them be not punished in this world , yet they will be punished sufficiently in the world to come . sir edw. coke for drawing to the men of his own profession as much authority as lawfully he might , is not to be reprehended ; but to the gravity and learning of the judges they ought to have added in the making of laws , the authority of the king , which hath the soveraignty : for of these laws of reason , every subject that is in his wits , is bound to take notice at his peril , because reason is part of his nature , which he continually carryes about with him , and may read it , if he will. ph. 't is very true ; and upon this ground , if i pretend within a month , or two to make my self able to perform the office of a judge , you are not to think it arrogance ; for you are to allow to me , as well as to other men , my pretence to reason , which is the common law ( remember this that i may not need again to put you in mind , that reason is the common law ) and for statute law , seeing it is printed , and that there be indexes to point me to every matter contained in them , i think a man may profit in them very much in two months . law. but you will be but an ill pleader . ph. a pleader commonly thinks he ought to say all he can for the benefit of his client , and therefore has need of a faculty to wrest the sense of words from their true meaning ; and the faculty of rhetorick to seduce the jury , and sometimes the judge also , and many other arts , which i neither have , nor intend to study . la. but let the judge how good soever he thinks his reasoning , take heed that he depart not too much from the letter of the statute : for it is not without danger . ph. he may without danger recede from the letter , if he do not from the meaning and sense of the law , which may be by a learned man , ( such as judges commonly are ) easily found out by the preamble , the time when it was made , and the incommodities for which it was made : but i pray tell me , to what end were statute-laws ordained , seeing the law of reason ought to be applyed to every controversie that can arise . la. you are not ignorant of the force of an irregular appetite to riches , to power , and to sensual pleasures , how it masters the strongest reason , and is the root of disobedience , slaughter , fraud , hypocrisie , and all manner of evil habits ; and that the laws of man , though they can punish the fruits of them , which are evil actions , yet they cannot pluck up the roots that are in the heart . how can a man be indicted of avarice , envy , hypocrisie , or other vitious habit , till it be declared by some action , which a witness may take notice of ; the root remaining , new fruit will come forth till you be weary of punishing , and at last destroy all power that shall oppose it . ph. what hope then is there of a constant peace in any nation , or between one nation , and another ? la. you are not to expect such a peace between two nations , because there is no common power in this world to punish their injustice : mutual fear may keep them quiet for a time , but upon every visible advantage they will invade one another , and the most visible advantage is then , when the one nation is obedient to their king , and the other not ; but peace at home may then be expected durable , when the common people shall be made to see the benefit they shall receive by their obedience and adhaesion to their own soveraign , and the harm they must suffer by taking part with them , who by promises of reformation , or change of government deceive them . and this is properly to be done by divines , and from arguments not only from reason , but also from the holy scripture . ph. this that you say is true , but not very much to that i aim at by your conversation , which is to inform my self concerning the laws of england : therefore i ask you again , what is the end of statute-laws ? of soveraign power . la. i say then that the scope of all humane law is peace , and justice in every nation amongst themselves , and defence against forraign enemies . ph. but what is justice ? la. justice is giving to every man his own . ph. the definition is good , and yet 't is aristotles ; what is the definition agreed upon as a principle in the science of the common law ? la. the same with that of aristotle . ph. see you lawyers how much you are beholding to a philosopher , and 't is but reason , for the more general and noble science , and law of all the world is true philosophy , of which the common law of england is a very little part . la. 't is so , if you mean by philosophy nothing but the study of reason , as i think you do . ph. when you say that justice gives to every man his own , what mean you by his own ? how can that be given me which is my own already ? or , if it be not my own , how can justice make it mine ? la. without law every thing is in such sort every mans , as he may take , possess , and enjoy without wrong to any man , every thing , lands , beasts , fruits , and even the bodies of other men , if his reason tell him he cannot otherwise live securely : for the dictates of reason are little worth , if they tended not to the preservation and improvement of mens lives , seeing then without humane law all things would be common , and this community a cause of incroachment , envy , slaughter , and continual war of one upon another , the same law of reason dictates to mankind ( for their own preservation ) a distribution of lands , and goods , that each man may know what is proper to him , so as none other might pretend a right thereunto , or disturb him in the use of the same . this distribution is justice , and this properly is the same which we say is one owns : by which you may see the great necessity there was of statute laws , for preservation of all mankind . it is also a dictate of the law of reason , that statute laws are a necessary means of the safety and well being of man in the present world , and are to be obeyed by all subjects , as the law of reason ought to be obeyed , both by king and subjects , because it is the law of god. ph. all this is very rational ; but how can any laws secure one man from another ? when the greatest part of men are so unreasonable , and so partial to themselves as they are , and the laws of themselves are but a dead letter , which of it self is not able to compel a man to do otherwise than himself pleaseth , nor punish , or hurt him when he hath done a mischief . la. by the laws , i mean , laws living and armed : for you must suppose , that a nation that is subdued by war to an absolute submission of a conqueror , it may by the same arm that compelled it to submission , be compelled to obey his laws . also if a nation choose a man , or an assembly of men to govern them by laws , it must furnish him also with armed men and money , and all things necessary to his office , or else his laws will be of no force , and the nation remains , as before it was , in confusion . 't is not therefore the word of the law , but the power of a man that has the strength of a nation , that makes the laws effectual . it was not solon that made athenian laws ( though he devised them ) but the supream court of the people ; nor , the lawyers of rome that made the imperial law in justinian's time , but justinian himself . ph. we agree then in this , that in england it is the king that makes the laws , whosoever pens them , and in this , that the king cannot make his laws effectual , nor defend his people against their enemies , without a power to leavy souldiers , and consequently , that he may lawfully , as oft as he shall really think it necessary to raise an army ( which in some occasions be very great ) i say , raise it , and money to maintain it . i doubt not but you will allow this to be according to the law ( at least ) of reason . la. for my part i allow it . but you have heard how , in , and before the late troubles the people were of another mind . shall the king , said they , take from us what he please , upon pretence of a necessity whereof he makes himself the judg ? what worse condition can we be in from an enemy ! what can they take from us more than what they list ? ph. the people reason ill ; they do not know in what condition we were in the time of the conqueror , when it was a shame to be an english-man , who if he grumbled at the base offices he was put to by his norman masters , received no other answer but this , thou art but an english-man , nor can the people , nor any man that humors them in their disobedience , produce any example of a king that ever rais'd any excessive summ's , either by himself , or by the consent of his parliament , but when they had great need thereof ; nor can shew any reason that might move any of them so to do . the greatest complaint by them made against the unthriftiness of their kings was for the inriching now and then a favourite , which to the wealth of the kingdom was inconsiderable , and the complaint but envy . but in this point of raising souldiers , what is i pray you the statute law ? la. the last statute concerning it , is car. . c. . by which the supream government command , and disposing of the militia of england is delivered to be , and always to have been the antient right of the kings of england : but there is also in the same act a proviso , that this shall not be construed for a declaration , that the king may transport his subjects , or compel them to march out of the kingdom , nor is it , on the contrary declared to be unlawful . ph. why is not that also determined ? la. i can imagine cause enough for it , though i may be deceiv'd . we love to have our king amongst us , and not be govern'd by deputies , either of our own , or another nation : but this i verily believe , that if a forraign enemy should either invade us , or put himself in t a readiness to invade either england , ireland , or scotland ( no parliament then sitting ) and the king send english souldiers thither , the parliament would give him thanks for it . the subjects of those kings who affect the glory , and imitate the actions of alexander the great , have not always the most comfortable lives , nor do such kings usually very long enjoy their conquests . they march to and fro perpetually , as upon a plank sustained only in the midst , and when one end rises , down goes the other . ph. 't is well . but where souldiers ( in the judgment of the kings conscience ) are indeed necessary , as in an insurrection , or rebellion at home ; how shall the kingdom be preserved without a considerable army ready , and in pay ? how shall money be rais'd for this army , especially when the want of publick treasure inviteth neighbour kings to incroach , and unruly subjects to rebel ? la i cannot tell . it is matter of polity , not of law ; but i know , that there be statutes express , whereby the king hath obliged himself never to levy money upon his subjects without the consent of his parliament . one of which statutes is . ed. . c. . in these words , we have granted for us , and our heirs , as well to arch-bishops , bishops , abbots , and other folk of the holy church , as also earls , barons , and to all the commonalty of the land , that for no business from henceforth , we shall take such aids , taxes , or prizes , but by the common consent of the realm . there is also another statute of ed. . in these words , no taxes , or aid shall be taken or leveyed by us , or our heirs in our realm , without the good will , and assent of the arch-bishops , bishops , earls , barons , knights , burgesses , and other freemen of the land ; which statutes have been since that time confirmed by divers other kings , and lastly by the king that now reigneth . ph. all this i know , and am not satisfied . i am one of the common people , and one of that almost infinite number of men , for whose welfare kings , and other soveraigns were by god ordain'd : for god made kings for the people , and not people for kings . how shall i be defended from the domineering of proud and insolent strangers that speak another language , that scorn us , that seek to make us slaves ? or how shall i avoid the destruction that may arise from the cruelty of factions in a civil war , unless the king , to whom alone , you say , belongeth the right of levying , and disposing of the militia ; by which only it can be prevented , have ready money , upon all occasions , to arm and pay as many souldiers , as for the present defence , or the peace of the people shall be necessary ? shall not i , and you , and every man be undone ? tell me not of a parliament when there is no parliament sitting , or perhaps none in being , which may often happen ; and when there is a parliament if the speaking , and leading men should have a design to put down monarchy , as they had in the parliament which began to sit nov. . . shall the king , who is to answer to god almighty for the safety of the people , and to that end is intrusted with the power to levy and dispose of the souldiery , be disabled to perform his office by virtue of these acts of parliament which you have cited ? if this be reason , 't is reason also that the people be abandoned , or left at liberty to kill one another , even to the last man ; if it be not reason , then you have granted it is not law. la. 't is true , if you mean recta ratio , but recta ratio which i grant to be law , as sir edw. coke says , inst. sect. . is an artificial perfection of reason gotten by long study , observation , and experience , and not every mans natural reason ; for nemo nascitur artifex . this legal reason is summa ratio ; and therefore , if all the reason that is dispersed into so many several heads were united into one , yet could he not make such a law as the law of england is , because by many successions of ages it hath been fined and refin●d , by an infinite number of grave and learned men. and this is it he calls the common-law . ph. do you think this to be good doctrine ? though it be true , that no man is born with the use of reason , yet all men may grow up to it as well as lawyers ; and when they have applyed their reason to the laws ( which were laws before they studyed them , or else it was not law they studied ) may be as fit for , and capable of judicature as sir edw. coke himself , who whether he had more , or less use of reason , was not thereby a judge , but because the king made him so : and whereas he says , that a man who should have as much reason as is dispersed in so many several heads , could not make such a law as this law of england is ; if one should ask him who made the law of england ? would he say a succession of english lawyers , or judges made it , or rather a succession of kings ; and that upon their own reason , either solely , or with the advice of the lords and commons in parliament , without the judges , or other professors of the law ? you see therefore that the kings reason , be it more , or less , is that anima legis , that summa lex , whereof sir edw. coke speaketh , and not the reason , learning , or wisdom of the judges ; but you may see , that quite through his institutes of law , he often takes occasion to magnifie the learning of the lawyers , whom he perpetually termeth the sages of the parliament , or of the kings council : therefore unless you say otherwise , i say , that the kings reason , when it is publickly upon advice , and deliberation declar'd , is that anima legis , and that summa ratio , and that equity which all agree to be the law of reason , is all that is , or ever was law in england , since it became christian , besides the bible . la. are not the canons of the church part of the law of england , as also the imperial law used in the admiralty , and the customs of particular places , and the by-laws of corporations , and courts of judicature . ph. why not ? for they were all constituted by the kings of england ; and though the civil law used in the admiralty were at first the statutes of the roman empire , yet because they are in force by no other authority than that of the king , they are now the kings laws , and the kings statutes . the same we may say of the canons ; such of them as we have retained , made by the church of rome , have been no law , nor of any force in england , since the beginning of queen elizabeth's raign , but by virtue of the great seal of england . la. in the said statutes that restrain the levying of money without consent of parliament , is there any thing you can take exceptions to ? ph. no , i am satisfied that the kings that grant such liberties are bound to make them good , so far as it may be done without sin : but if a king find that by such a grant he be disabled to protect his subjects if he maintain his grant , he sins ; and therefore may , and ought to take no notice of the said grant : for such grants as by error , or false suggestion are gotten from him , are as the lawyers do confess , void and of no effect , and ought to be recalled . also the king ( as is on all hands confessed ) hath the charge lying upon him to protect his people against forraign enemies , and to keep the peace betwixt them within the kingdom ; if he do not his utmost endeavour to discharge himself thereof , he committeth a sin , which neither king , nor parliament can lawfully commit . la. no man i think will deny this : for if levying of money be necessary , it is a sin in the parliament to refuse , if unnecessary , it is a sin both in king and parliament to levy : but for all that it may be , and i think it is a sin in any one that hath the soveraign power , be he one man , or one assembly , being intrusted with the safety of a whole nation , if rashly , and relying upon his own natural sufficiency , he make war , or peace without consulting with such , as by their experience and employment abroad , and intelligence by letters , or other means have gotten the knowledge in some measure of the strength , advantages and designs of the enemy , and the manner and degree of the danger that may from thence arise . in like manner , in case of rebellion at home , if he consult not with of military condition , which if he do , then i think he may lawfully proceed to subdue all such enemies and rebels ; and that the souldiers ought to go on without inquiring whether they be within the country , or without : for who shall suppress rebellion , but he that hath right to levy , command , and dispose of the militia ? the last long parliament denied this . but why ? because by the major part of their votes the rebellion was raised with design to put down monarchy , and to that end maintained . ph. nor do i hereby lay any aspersion upon such grants of the king and his ancestors . those statutes are in themselves very good for the king and people , as creating some kind of difficulty , or such kings as for the glory of conquest might spend one part of their subjects lives and estates , in molesting other nations , and leave the rest to destroy themselves at home by factions . that which i here find fault with , is the wresting of those , and other such statutes to a binding of our kings from the use of their armies in the necessary defence of themselves and their people . the late long parliament that in , murdered their king ( a king that sought no greater glory upon earth , but to be indulgent to his people , and a pious defender of the church of england ) no sooner took upon them the soveraign power , then they levyed money upon the people at their own discretion . did any of their subjects dispute their power ? did they not send souldiers over the sea to subdue ireland , and others to fight against the dutch at sea , or made they any doubt but to be obeyed in all that they commanded , as a right absolutely due to the soveraign power in whomsoever it resides ? i say , not this as allowing their actions , but as a testimony from the mouths of those very men that denyed the same power to him , whom they acknowledged to have been their soveraign immediately before , which is a sufficient proof , that the people of england never doubted of the kings right to levy money for the maintenance of his armies , till they were abused in it by seditious teachers , and other prating men , on purpose to turn the state and church into popular government , where the most ignorant and boldest talkers do commonly obtain the best preferments ; again , when their new republick returned into monarchy by oliver , who durst deny him money upon any pretence of magna charta , or of these other acts of parliament which you have cited ? you may therefore think it good law , for all your books ; that the king of england may at all times , that he thinks in his conscience it will be necessar for the defence of his people , levy as many souldiers , and as much money as he please , and that himself is judge of the necessity . la. is there no body harkning at the door ? ph. what are you afraid of ? la. i mean to say the same that you say : but there be very many yet , that hold their former principles , whom , neither the calamities of the civil wars , nor their former pardon have throughly cur'd of their madness . ph. the common people never take notice of what they hear of this nature , but when they are set on by such as they think wise ; that is , by some sorts of preachers , or some that seem to be learned in the laws , and withal speak evil of the governors . but what if the king upon the sight , or apprehension of any great danger to his people ; as when their neighbours are born down with the current of a conquering enemy , should think his own people might be involved in the same misery , may he not levy , pay , and transport souldiers to help those weak neighbours by way of prevention , to save his own people and himself from servitude ? is that a sin ? la. first , if the war upon our neighbour be just , it may be question'd whether it be equity or no to assist them against the right . ph. for my part i make no question of that at all , unless the invader will , and can put me in security , that neither he , nor his successors shall make any advantage of the conquest of my neighbour , to do the same to me in time to come ; but there is no common power to bind them to the peace . la. secondly ; when such a thing shall happen , the parliament will not refuse to contribute freely to the safety of themselves , and the whole nation . ph. it may be so , and it may be not : for if a parliament then sit not , it must be called ; that requires weeks time ; debating and collecting what is given requires as much , and in this time the opportunity perhaps is lost . besides , how many wretched souls have we heard to say in the late troubles ; what matter is it who gets the victory ? we can pay but what they please to demand , and so much we pay now : and this they will murmur , as they have ever done whosoever shall raign over them , as long as their coveteousness and ignorance hold together , which will be till dooms-day , if better order be not taken for their struction in their duty , both from reason and religion . la. for all this i find it somewhat hard , that a king should have right to take from his subjects , upon the pretence of necessity what he pleaseth . ph. i know what it is that troubles your conscience in this point . all men are troubled at the crossing of their wishes ; but it is our own fault . first , we wish impossibilities ; we would have our security against all the world , upon right of property , without paying for it : this is impossible . we may as well expect that fish , and fowl should boil , rost , and dish themselves , and come to the table ; and that grapes should squeeze themselves into our mouths , and have all other the contentments and ease which some pleasant men have related of the land of cocquam . secondly , there is no nation in the world where he , or they that have the soveraignty do not take what money they please , for defence of those respective nations , when they think it necessary for their safety . the late long parliament denyed this ; but why ? because there was a design amongst them to depose the king. thirdly , there is no example of any king of england that i have read of , that ever pretended any such necessity for levying of money , against his conscience . the greatest sounds that ever were levyed ( comparing the value of money , as it was at that time , with what now it is ) were levied by king edw. d. and king henry the th . kings of whom we glory now , and think their actions great ornaments to the english history . lastly , as to the enriching of now and then a favourite , it is neither sensible to the kingdom , nor is any treasure thereby conveyed out of the realm , but so spent as it falls down again upon the common people . to think that our condition being humane should be subject to no incommodity , were injuriously to quarrel with god almighty for our own faults ; for he hath done his part in annexing our own industry and obedience . la. i know not what to say . ph. if you allow this that i have said ; then , say that the people never were , shall be , or ought to be free from being taxed at the will of one or other ; being hindred that if civil war come , they must levy all they have , and that dearly , from the one , or from the other , or from both sides . say , that adhering to the king , their victory is an end of their trouble ; that adhering to his enemies there is no end ; for the war will continue by a perpetual subdivision , and when it ends , they will be in the same estate they were before . that they are often abused by men who to them seem wise , when then their wisdom is nothing else but envy to those that are in grace , and in profitable employments , and that those men do but abuse the common people to their own ends , that set up a private mans propriety against the publick safety . but say withal , that the king is subject to the laws of god , both written , and unwritten , and to no other ; and so was william the conqueror , whose right it all descended to our present king. la. as to the law of reason , which is equity , 't is sure enough there is but one legislator , which is god. ph. it followeth then that which you call the common-law , distinct from statute-law , is nothing else but the law of god. la. in some sense it is , but it is not gospel , but natural reason , and natural equity . ph. would you have every man to every other man alledge for law his own particular reason ? there is not amongst men an universal reason agreed upon in any nation , besides the reason of him that hath the soveraign power ; yet though his reason be but the reason of one man , yet it is set up to supply the place of that universal reason , which is expounded to us by our saviour in the gospel , and consequently our king is to us the legislator both of statute-law , and of common-law . la. yes , i know that the laws spiritual , which have been law in this kingdom since the abolishing of popery , are the kings laws , and those also that were made before ; for the canons of the church of rome were no laws , neither here , nor any where else without the popes temporal dominions , farther than kings , and states in their several dominions respectively did make them so . ph. i grant that . but you must grant also , that those spiritual laws legislators of the spiritual law ; and yet not all kings , and states make laws by consent of the lords and commons ; but our king here is so far bound to their assents , as he shall judge conducing to the good , and safety of his people ; for example , if the lords and commons should advise him to restore those laws spiritual , which in queen maries time were in force , i think the king were by the law of reason obliged , without the help of any other law of god , to neglect such advice . la. i grant you that the king is sole legislator , but with this restriction , that if he will not consult with the lords of parliament and hear the complaints , and informations of the commons , that are best acquainted with their own wants , he sinneth against god , though he cannot be compell'd to any thing by his subjects by arms , and force . ph. we are agreed upon that already , since therefore the king is sole legislator , i think it also reason he should be sole supream judge . la. there is no doubt of that ; for otherwise there would be no congruity of judgments with the laws . i grant also that he is the supream judge over all persons , and in all causes civil , and ecclesiastical within his own dominions , not only by act of parliament at this time , but that he has ever been so by the common-law : for the judges of both the benches have their offices by the kings letters patents , and so ( as to judicature ) have the bishops . also the lord chancellour hath his office by receiving from the king the great seal of england ; and to say all at once , there is no magistrate , or commissioner for publick business , neither of judicature , nor execution in state , or church , in peace , or war , but he is made so by authority from the king. ph. 't is true ; but perhaps you may ●●ink otherwise , when you read such acts of parliament , as say , that the king shall ●ave power and authority to do this , or that by virtue of that act , as eliz. c. . that your highness , your heirs , and successors , kings , or queens of this realm shall have ●●ll power and authority , by virtue of this act , by letters patents under the great seal of england to assign , &c. was it not this parliament that gave this authority to the queen ? la. for the statute in this clause is no more than ( as sir edw. coke useth to speak ) an affirmance of the common-law ; for she being head of the church of england might make commissioners for the de●iding of matters ecclesiastical , as freely ●s if she had been pope , who did you know pretend his right from the law of god. ph. we have hitherto spoken of laws without considering any thing of the na●ure and essence of a law ; and now unless we define the word law , we can go no ●arther without ambiguity , and fallacy , which will be but loss of time ; whereas , on the contrary , the agreement upon our words will enlighten all we have to say ●hereafter . la. i do not remember the definition of law in any statute . ph. i think so : for the statutes were made by authority , and not drawn from any other principles than the care of the safety of the people . statutes are not philosophy as is the common-law , and other disputable arts , but are commands , or prohibitions which ought to be obeyed , because assented to by submission made to the conqueror here in england , and to whosoever had the soveraign power in other common wealths ; so that the positive laws of all places are statutes . the definition of law was therefore unnecessary for the makers of statutes , though very necessary to them , whose work it is to teach the sence of the law. la. there is an accurate definition of a law in bracton , cited by sir edw. coke ( ) lex est sanctio justa , jubens honesta , & prohibens contraria . ph. that is to say , law is a just statute , commanding those things which are honest , and forbidding the contrary . from whence it followeth , that in all cases it must be the honesty , or dishonesty that makes the command a law , whereas you know that but for the law we could not ( as saith st. paul ) have known what is sin ; therefore this definition is no ground at all for any farther discourse of law. besides , you know the rule of honest , and dishonest refers to honour , and that it is justice only , and injustice that the law respecteth . but that which i most except against in this definition , is , that it supposes that a statute made by the soveraign power of a nation may be unjust . there may indeed in a statute law , made by men be found iniquity , but not injustice . la. this is somewhat subtil ; i pray deal plainly , what is the difference between injustice and iniquity ? ph. i pray you tell me first , what is the difference between a court of justice , and a court of equity ? la. a court of justice is that which hath cognizance of such causes as are to be ended by the possitive laws of the land ; and a court of equity in that , to which belong such causes as are to be determined by equity ; that is to say , by the law of reason . ph. you see then that the difference between injustice , and iniquity is this ; that injustice is the transgression of a statute-law , and iniquity the transgression of the law of reason , was nothing else but the law of reason , and that the judges of that law are courts of justice , because the breach of the statute-law is iniquity , and injustice also . but perhaps you mean by common-law , not the law it self , but the manner of proceeding in the law ( as to matter of fact ) by men , freeholders , though those men are no court of equity , nor of justice , because they determine not what is just or unjust , but only whether it be done , or not done ; and their judgment is nothing else but a confirmation of that which is properly the judgment of the witnesses ; for to speak exactly there cannot possibly be any judge of fact besides the witnesses . la. how would you have a law def●n'd ? ph. thus ; a law is the command of him , or them that have the soveraign power , given to those that be his or their subjects , declaring publickly , and plainly what every of them may do , and what they must forbear to do . la. seeing all judges in all courts ought to judge according to equity , which is the law of reason , a distinct court of equity seemeth to me to be unnecessary , and but a burthen to the people , since common-law , and equity are the same law. ph. it were so indeed ; if judges could not err , but since they may err , and that the king is not bound to any other law but that of equity , it belongs to him alone to give remedy to them that by the ignorance , or corruption of a judge shall suffer dammage . la. by your definition of a law , the kings proclamation under the great seal of england is a law ; for it is a command , and publick , and of the soveraign to his subjects . ph. why not ? if he think it necessary for the good of his subjects : for this is a maxim at the common-law alledged by sir edward coke himself . inst. sect. . quando lex aliquid concedit , concedere videtur & id per quod devenitur ad illud . and you know out of the same author , that divers kings of ●ngland have often , to the petitions in parliament which they granted , annexed such exceptions as these , unless there be necessity , saving our regality ; which i think should be always understood , though they be not expressed ; and are understood so by common lawyers , who agree that the king may recall any grant wherein he was deceiv'd . la. again , whereas you make it of the essence of a law to be publickly and plainly declar'd to the people , i see no necessity for that . are not all subjects bound to take notice of all acts of parliament , when no act can pass without their consent ? ph. if you had said that no act could pass without their knowledge , then indeed they had been bound to take notice of them ; but none can have knowledge of them but the members of the houses of parliament , therefore the rest of the people are excus'd ; or else the knights of the shires should be bound to furnish people with a sufficient number of copies ( at the peoples charge ) of the acts of parliament at their return into the country ; that every man may resort to them , and by themselves , or friends take notice of what they are obliged to ; for otherwise it were impossible they should be obeyed : and that no man is bound to do a thing impossible is one of sir edw. cokes maxims at the common-law . i know that most of the statutes are printed , but it does not appear that every man is bound to buy the book of statutes , nor to search for them at westminster or at the tower , nor to understand the language wherein they are for the most part written . la. i grant it proceeds from their own faults ; but no man can be excused by the ignorance of the law of reason ; that is to say , by ignorance of the common-law , except children , mad-men , and idiots : but you exact such a notice of the statute-law , as is almost impossible . is it not enough that they in all places have a sufficient number of the poenal statutes ? ph. yes ; if they have those poenal statutes near them , but what reason can you give me why there should not be as many copies abroad of the statutes , as there be of the bible ? la. i think it were well that every man that can read had a statute-book ; for certainly no knowledge of those laws , by which mens lives and fortunes can be brought into danger , can be too much . i find a great fault in your definition of law ; which is , that every law either forbiddeth or commandeth something . 't is true that the moral-law is always a command or a prohibition , or at least implieth it ; but in the levitical-law , where it is said ; that he that stealeth a sheep shall restore four fold ; what command , or prohibition lyeth in these words ? ph. such sentences as that are not in themselves general , but judgments , nevertheless , there is in those words implied a commandment to the judge , to cause to be made a four-fold restitution . la. that 's right . ph. now define what justice is , and what actions , and men are to be called just. la. justice is the constant will of giving to every man his own ; that is to say , of giving to every man that which is his right , in such manner as to exclude the right of all men else to the same thing . a just action is that which is not against the law. a just man is he that hath a constant will to live justly ; if you require more , i doubt there will no man living be comprehended within the definition . ph. seeing then that a just action ( according to your definition ) is that which is not against the law ; it is manifest that before there was a law , there could be no injustice , and therefore laws are in their nature antecedent to justice and injustice , and you cannot deny but there must be law-makers , before there was any laws , and consequently before there was any justice , i speak of humane justice ; and that law-makers were before that which you call own , or property of goods , or lands distinguished by meum , tuum , alienum . la. that must be granted ; for without statute-laws , all men have right to all things ; and we have had experience when our laws were silenced by civil war , there was not a man , that of any goods could say assuredly they were his own . ph. you see then that no private man can claim a propriety in any lands , or other goods from any title , from any man , but the king , or them that have the soveraign power ; because it is in virtue of the soveraignty , that every man may not enter into , and possess what he pleaseth ; and consequently to deny the soveraign any thing necessary to the sustaining of his soveraign power , is to destroy the propriety he pretends to . the next thing i will ask you is , how you distinguish between law and right , or lex and jus. la. sir ed. coke in divers places makes lex and jus to be the same , and so lex communis , and jus communis to be all one ; nor do i find that he does in any places distinguish them . ph. then will i distinguish them , and make you judge whether my distinction be not necessary to be known by every author of the common law : for law obligeth me to do , or forbear the doing of something ; and therefore it lies upon me an obligation ; but my right is a liberty left me by the law to do any thing which the law forbids me not , and to leave undone any thing which the law commands me not . did sir ed. coke see no difference between being bound and being free ? la. i know not what he was , but he has not mention'd it , though a man may dispense with his own liberty , that cannot do so with the law. ph. but what are you better for your right , if a rebellious company at home , or an enemy from abroad take away the goods , or dispossess you of the lands you have a right to ? can you be defended , or repair'd , but by the strength and authority of the king ? what reason therefore can be given by a man that endeavours to preserve his propriety , why he should deny , or malignly contribute to the strength that should defend him , or repair him ? let us see now what your books say to this point , and other points of the right of soveraignty . bracton , the most authentick author of the common law , fol. . saith thus : ipse dominus rex habet omnia jura in manu suâ , est dei vicarius ; habet ea quae sunt pacis , habet etiam coercionem ut delinquentes puniat ; habet in potestate suâ leges ; nihil enim prodest jura condere , nisi sit qui jura tueatur . that is to say , our lord the king hath all right in his own hands ; is gods vicar ; he has all that concerns the peace ; he has the power to punish delinquents ; all the laws are in his power ; to make laws is to no purpose , unless there be some-body to make them obeyed . if bracton's law be reason , as i , and you think it is ; what temporal power is there which the king hath not ? seeing that at this day all the power spiritual which bracton allows the pope , is restored to the crown ; what is there that the king cannot do , excepting sin against the law of god ? the same bracton lib. . c. . saith thus ; si autem a rege petitur ( cum breve non curret contra ipsum ) locus erit supplicationi , quod factum suum corrigat , & emendet ; quod quidem si non fecerit , satis sufficit ad poenam , quod dominum expectet vltorem ; nemo quidem de factis ejus praesumat disputare , multo fortius contra factum ejus venire : that is to say , if any thing be demanded of the king ( seeing a writ lyeth not against him ) he is put to his petition , praying him to correct and amend his own fact ; which if he will not do , it is a sufficient penalty for him , that he is to expect a punishment from the lord : no man may presume to dispute of what he does , much less to resist him . you see by this , that this doctrine concerning the rights of soveraignty so much cryed down by the long parliament , is the antient common-law , and that the only bridle of the kings of england , ought to be the fear of god. and again bracton , c. . of the second book sayes , that the rights of the crown cannot be granted away ; ea vero quae jurisdictionis & pacis , & ea quae sunt justitiae & paci annexa , ad nullum pertinent , nisi ad coronam & dignitatem regiam , nec a corona separari possunt , nec a privata persona possideri . that is to say , those things which belong to jurisdiction and peace , and those things that are annexed to justice , and peace , appertain to none , but to the crown and dignity of the king , nor can be separated from the crown , nor be possest by a private person . again you 'l find in fleta ( a law-book written in the time of edw. . ) that liberties though granted by the king , if they tend to the hinderance of justice , or subversion of the regal power , were not to be used , nor allowed : for in that book c. . concerning articles of the crown , which the justices itinerant are to enquire of , the th article is this , you shall inquire de libertatibus concessis quae impediunt communem j●stitiam , & regiam potestatem subvertunt . now what is a greater hindrance to common justice , or a greater subversion of the regal power , than a liberty in subjects to hinder the king from raising money necessary to suppress , or prevent rebellions , which doth destroy justice , and subvert the power of the soveraignty ? moreover when a charter is granted by a king in these words , dedita & coram pro me & haeredibus meis . the grantor by the common-law ( as sir edw. coke sayes in his commentaries on littleton ) is to warrant his gift ; and i think it reason , especially if the gift be upon consideration of a price paid . suppose a forraign state should say claim to this kingdom ( 't is no matter as to the question i am putting , whether the claim be unjust ) how would you have the king to warrant to every free-holder in england the lands they hold of him by such a charter ? if he cannot levy money , their estates are lost , and so is the kings estate , and if the kings estate be gone , how can he repair the value due upon the warranty ? i know that the kings charters are not so meerly grants , as that they are not also laws ; but they are such laws as speak not to all the kings subjects in general , but only to his officers ; implicitly forbidding them to judge , or execute any thing contrary to the said grants . there be many men that are able judges of what is right reason , and what not ; when any of these shall know that a man has no superiour , nor peer in the kingdom , he will hardly be perswaded he can be bound by any law of the kingdom , or that he who is subject to none but god , can make a law upon himself , which he cannot also as easily abrogate , as he made it . the main argument , and that which so much taketh with the throng of people , proceedeth from a needless fear put into their minds by such men as mean to make use of their hands to their own ends ; for if ( say they ) the king may ( notwithstanding the law ) do what he please , and nothing to restrain him but the fear of punishment in the world to come , then ( in case there come a king that fears no such punishment ) he may take away from us , not only our lands , goods , and liberties , but our lives also if he will : and they say true ; but they have no reason to think he will , unless it be for his own profit , which cannot be ; for he loves his own power ; and what becomes of his power when his subjects are destroyed , or weakned , by whose multitude , and strength he enjoyes his power , and every one of his subjects his fortune ? and lastly , whereas they sometimes say the king is bound , not only to cause his laws to be observ'd , but also to observe them himself ; i think the king causing them to be observ'd is the same thing as observing them himself : for i never heard it taken for good law , that the king may be indicted , or appealed , or served with a writ , till the long parliament practised the contrary upon the good king charles , for which divers of them were executed , and the rest by this our present king pardoned . la. pardoned by the king and parliament . ph. by the king in parliament if you will , but not by the king , and parliament ; you cannot deny , but that the pardoning of injury , to the person that is injur'd , treason , and other offences against the peace , and against the right of the soveraign are injuries done to the king ; and therefore whosoever is pardoned any such offence , ought to acknowledge he ows his pardon to the king alone : but as to such murders , felonies , and other injuries as are done to any subject how mean soever , i think it great reason that the parties endammaged ought to have satisfaction before such pardon be allow'd . and in the death of a man , where restitution of life is impossible , what can any friend , heir , or other party that may appeal , require more than reasonable satisfaction some other way ? perhaps he will be content with nothing but life for life ; but that is revenge , and belongs to god , and under god to the king , and none else ; therefore if there be reasonable satisfaction tendred , the king , without sin ( i think ) may pardon him . i am sure , if the pardoning him be a sin , that neither king , nor parliament , nor any earthly power can do it . la. you see by this your own argument , that the act of oblivion , without a parliament could not have passed ; because , not only the king , but also most of the lords , and abundance of common people had received injuries ; which not being pardonable , but by their own assent , it was absolutely necessary that it should be done in parliament , and by the assent of the lords and commons . ph. i grant it ; but i pray you tell me now what is the difference between a general pardon , and an act of oblivion ? la. the word act of oblivion was never in our books before ; but i believe it is in yours . ph. in the state of athens long ago , for the abolishing of the civil war , there was an act agreed on ; that from that time forward , no man should be molested for any thing ( before that act done ) whatsoever without exception , which act the makers of it called an act of oblivion ; not that all injuries should be forgotten ( for then we could never have had the story ) but that they should not rise up in judgment against any man. and in imitation of this act the like was propounded ( though it took no effect ) upon the death of julius caesar , in the senate of rome . by such an act you may easily conceive that all accusations for offences past were absolutely dead , and buried , and yet we have no great reason to think , that the objecting one to another of the injuries pardoned , was any violation of those acts , except the same were so expressed in the act it self . la. it seems then that the act of oblivion was here no more , nor of other nature than a general pardon . of courts . ph. since you acknowledge that in all controversies , the judicature originally belongeth to the king , and seeing that no man is able in his own person to execute an office of so much business ; what order is taken for deciding of so many , and so various controversies ? la. there be divers sorts of controversies , some of which are concerning mens titles to lands , and goods ; and some goods are corporeal , and lands , money , cattel , corn , and the like , which may be handled , or seen ; and some incorporeal , as priviledges , liberties , dignities , offices , and many other good things , meer creatures of the law , and cannot be handled or seen : and both of these kinds are concerning meum , and tuum . others there are concerning crimes punishable divers wayes ; and amongst some of these , part of the punishment is some fine , or forfeiture to the king , and then it is called a plea of the crown , in case the king sue the party , otherwise it is but a private plea , which they call an appeal : and though upon judgment in an appeal the king shall have his forfeiture ; yet it cannot be called a plea of the crown , but when the crown pleadeth for it . there be also other controversies concerning the government of the church , in order to religion , and virtuous life . the offences both against the crown , and against the laws of the church are crimes ; but the offences of one subject against another , if they be not against the crown , the king pretendeth nothing in those pleas , but the reparation of his subjects injur'd . ph. a crime is an offence of any kind whatsoever , for which a penalty is ordain'd by the law of the land : but you must understand that dammages awarded to the party injur'd , has nothing common with the nature of a penalty , but is meerly a restitution , or satisfaction due to the party griev'd by the law of reason , and consequently is no more a punishment than is the paying of a debt . la. it seems by this definition of a crime you make no difference between a crime , and a sin . ph. all crimes are indeed sins , but not all sins crimes . a sin may be in the thought or secret purpose of a man , of which neither a judge , nor a witness , nor any man take notice ; but a crime is such a sin as consists in an action against the law , of which action he can be accused , and tryed by a judge , and be convinced , or cleared by witnesses . farther ; that which is no sin in it self , but indifferent , may be made sin by a positive law. as when the statute was in force ; that no man should wear silk in his hat , after the statute , such wearing of silk was a sin , which was not so before : nay sometimes an action that 's good in it self , by the statute law may be made a sin ; as if a statute should be made to forbid the giving of alms to a strong and sturdy beggar ; such alms after that law would be a sin , but not before : for then it was charity , the object whereof is not the strength , or other quality of the poor man , but his poverty . again , he that should have said in queen maries time , that the pope had no authority in england , should have been burnt at a stake ; but for saying the same in the time of queen elizabeth , should have been commended . you see by this , that many things are made crimes , and no crimes , which are not so in their own nature , but by diversity of law , made upon diversity of opinion , or of interest by them which have authority : and yet those things , whether good , or evil , will pass so with the vulgar ( if they hear them often with odious terms recited ) for hainous crimes in themselves , as many of those opinions , which are in themselves pious , and lawful , were heretofore by the popes interest therein called detestable heresie . again ; some controversies are of things done upon the sea , others of things done upon the land. there need by many courts to the deciding of so many kinds of controversies . what order is there taken for their distribution ? la. there be an extraordinary great number of courts in england ; first ; there be the kings courts both for law , and equity in matters temporal , which are the chancery , the kings-bench , the court of common-pleas , and for the kings revenue the court of the exchequer , and there be subjects courts by priviledge , as the court in london , and other priviledg'd places . and there be other courts of subjects , as the courts of landlords , called the court of barons , and the courts of sherifs . also the spiritual courts are the kings courts at this day , though heretofore they were the popes courts . and in the kings courts , some have their judicature by office , and some by commission , and some authority to hear , and determine , and some only to inquire , and to certifie into other courts . now for the distribution of what pleas every court may hold ; it is commonly held , that all the pleas of the crown , and of all offences contrary to the peace are to be holden in the kings bench , or by commissioners , for bracton saith ; sciendum est , quod si actiones sunt criminales , in curia domini regis debent determinari ; cum sit ibi poena c●rporalis infligenda , & hoc coram ipso rege , si tangat personam suam , sicut crimen laesae majestatis , vel coram justitiariis ad hoc specialiter assignatis . that is to say ; that if the plea be criminal , it ought to be determin'd in the court of our lord the king , because there they have power to inflict corporeal punishment , and if the crime be against his person , as the crime of treason , it ought to be determin'd before the king himself , or if it be against a private person , it ought to be determin'd by justices assigned ; that is to say , before commissioners . it seems by this , that heretofore kings did hear and determine pleas of treason against themselves , by their own persons ; but it has been otherwise a long time , and is now : for it is now the office of the lord steward of england in the tryal of a peer , to hold that plea by a commission especially for the same . in causes concerning meum , and tuum , the king may sue , either in the kings-bench , or in the court of common pleas , as it appears by fitzherbert in his natura brevium , at the writ of escheat . ph. a king perhaps will not sit to determine of causes of treason against his person , lest he should seem to make himself judge in his own cause ; but that it shall be judged by judges of his own making , can never be avoided , which is also one as if he were judge himself . la. to the kings-bench also ( i think ) belongeth the hearing , and determining of all manner of breaches of the peace whatsoever , saving alwayes to the king that he may do the same , when he pleaseth , by commissioners . in the time of henry the d , and edward the st , ( when bracton wrote ) the king did usually send down every seven years into the country commissioners called justices itinerant , to hear , and determine generally all causes temporal , both criminal , and civil , whose places have been now a long time supplyed by the justices of assize , with commissions of the peace of oyer , and terminer , and of goal-delivery . ph. but why may the king only sue in the kings-bench , or court of common-pleas , which he will , and no other person may do the same ? la. there is no statute to the contrary , but it seemeth to be the common-law ; for sir edw. coke , inst. setteth down the jurisdiction of the kings-bench ; which ( he says ) has ; first , jurisdiction in all pleas of the crown . secondly , the correcting of all manner of errors of other justices , and judges , both of judgments and process ( except of the court of exchequer ) which he sayes , is to this court proprium quarto modo . thirdly ; that it has power to correct all misdemeanours extrajudicial tending to the breach of the peace , or oppression of the subjects , or raising of factions , controversies , debates , or any other manner of misgovernment . fourthly ; it may hold plea by writ out of the chancery of all trespasses done vi & armis . fifthly ; it hath power to hold plea by bill for debt , detinu , covenant , promise , and all other personal actions ; but of the jurisdiction of the kings-bench in actions real he says nothing ; save , that if a writ in a real action be abated by judgment in the court of common-pleas , and that the judgment be by a writ of error , reversed in the kings-bench , then the kings-bench may proceed upon the writ . ph. but how is the practice ? la. real actions are commonly decided , as well in the kings-bench , as in the court of common-pleas . ph. when the kng by authority in writing maketh a lord-chief-justice of the kings-bench ; does he not set down what he makes him for ? la. sir edw coke sets down the letters patents , whereby of antient time the lord chief-justice was constituted , wherein is expressed to what end he hath his office ; viz. pro conservatione nostra , & tranquilitatis regni nostri , & ad justitiam universis & singulis de regno nostro exhibendam , constituimus dilectum & fidelem nostrum p. b. justitiarium angliae , quamdiu nobis placuerit capitalem , &c. that is to say , for the preservation of our self , and of the peace of our realm , and for the doing of justice to all and singular our subjects , we have constituted our beloved and faithful p. b. during our pleasure , chief justice of england , &c. ph. methinks 't is very plain by these letters patents , that all causes temporal within the kingdom ( except the pleas that belong to the exchequer ) should be decidable by this lord-chief-justice . for as for causes criminal , and that concern the peace , it is granted him in these words , for the conservation of our self , and peace of the kingdom , wherein are contained all pleas criminal ; and , in the doing of justice to all and singular the kings subjects are comprehended all pleas civil . and as to the court of common-pleas , it is manifest it may hold all manner of civil-pleas ( except those of the exchequer ) by magna charta , cap. . so that all original writs concerning civil-pleas are returnable into either of the said courts ; but how is the lord-chief-justice made now ? la. by these words in their letters patents ; constituimus vos justitiarium nostrum capitalem ad placita coram nobis tenenda , durante beneplacito nostro . that is to say , we have made you our chief-justice to hold pleas before our self , during our pleasure . but this writ , though it be shorter , does not at all abridge the power they had by the former . and for the letters patents for the chief-justice of the common-pleas , they go thus , constituimus dilectum & fidelem , &c. capitalem justitiarium de communi banco , habendum , &c. quamdiu nobis placuerit , cum vadiis & foedis ab antiquo debitis & consuetis . id est , we have constituted our beloved and faithful , &c. chief-justice of the common-bench , to have , &c. during our pleasure , with the ways , and fees thereunto heretofore due , and usual . ph. i find in history , that there have been in england always a chancellour and a chief-justice of england , but of a court of common-pleas there is no mention before magna charta . common-pleas there were ever both here , and i think , in all nations ; for common-pleas and civil-pleas i take to be the same . la. before the statute of magna charta common-pleas ( as sir edw. coke granteth , inst. p. . ) might have been holden in the kings-bench ; and that court being removeable at the kings will , the returns of writs were coram nobis ubicunque fuerimus in anglia ; whereby great trouble of jurors ensued , and great charges of the parties , and delay of justice ; and that for these causes it was ordain'd , that the common-pleas should not follow the king , but be held in a place certain . ph. here sir edw. coke declares his opinion , that no common-plea can be holden in the kings-bench , in that he says they might have been holden then . and yet this doth not amount to any probable proof , that there was any court of common-pleas in england before magna charta : for this statute being to ease the jurors , and lessen the charges of parties , and for the expedition of justice had been in vain , if there had been a court of common-pleas then standing ; for such a court was not necessarily to follow the king , as was the chancery , and the kings-bench . besides , unless the kings-bench , wheresoever it was , held plea of civil causes , the subject had not at all been eased by this statute : for supposing the king at york , had not the kings subjects about london , jurors , and parties as much trouble , and charge to go to york , as the people about york had before to go to london ? therefore i can by no means believe otherwise , then that the erection of the court of common-pleas was the effect of that statute of magna charta , cap. . and before that time not existent , though i think that for the multiplicity of suits in a great kingdom there was need of it . la. perhaps there was not so much need of it as you think : for in those times the laws , for the most part , were in setling , rather than setled ; and the old saxon laws concerning inheritances were then practised , by which laws speedy justice was executed by the kings writs , in the courts of barons , which were landlords to the rest of the freeholders , and suits of barons in county-courts , and but few suits in the kings courts , but when justice could not be had in those inferior courts ; but at this day there be more suits in the kings courts , than any one court can dispatch . ph. why should there be more suits now , than formerly ? for i believe this kingdom was as well peopled then as now . la. sir edw. coke , inst. p. . assigneth for it six causes , . peace , . plenty , . the dissolution of religious houses , and dispersing of their lands among so many several persons , . the multitude of informers , . the number of concealers , . the multitude of attorneys . ph. i see sir edw. coke has no mind to lay any fault upon the men of his own profession ; and that he assigns for causes of the mischiefs , such things as would be mischief , and wickedness to amend ; for if peace , and plenty , be the cause of this evil , it cannot be removed but by war and beggery ; and the quarrels arising about the lands of religious persons cannot arise from the lands , but from the doubtfulness of the laws . and for informers they were authorised by statutes , to the execution of which statutes they are so necessary , as that their number cannot be too great , and if it be too great the fault is in the law it self . the number of concealers , are indeed a number of couseners , which the law may easily correct . and lastly for the multitude of attorneys , it is the fault of them that have the power to admit , or refuse them . for my part i believe that men at this day have better learn't the art of caviling against the words of a statute , than heretofore they had , and thereby encourage themselves , and others , to undertake suits upon little reason . also the variety and repugnancy of judgments of common-law do oftentimes put men to hope for victory in causes , whereof in reason they had no ground at all . also the ignorance of what is equity in their own causes , which equity not one man in a thousand ever studied , and the lawyers themselves seek not for their judgments in their own breasts , but in the precedents of former judges , as the antient judges sought the same , not in their own reason , but in the laws of the empire . another , and perhaps the greatest cause of multitude of suits is this , that for want of registring of conveyances of land , which might easily be done in the townships where the lands ly , a purchase cannot easily be had , which will not be litigious . lastly , i believe the coveteousness of lawyers was not so great in antient time , which was full of trouble , as they have been since in time of peace , wherein men have leisure to study fraud , and get employment from such men as can encourage to contention . and how ample a field they have to exercise this mystery in is manifest from this , that they have a power to scan and construe every word in a statute , charter , feofment , lease , or other deed , evidence , or testimony . but to return to the jurisdiction of this court of the kings-bench , where , as you say , it hath power to correct and amend the errors of all other judges , both in process , and in judgments ; cannot the judges of the common-pleas correct error in process in their own courts , without a writ of error from another court ? la. yes ; and there be many statutes which command them so to do . ph. when a writ of error is brought out of the kings-bench , be it either error in process , or in law , at whose charge is it to be done ? la. at the charge of the clyent . ph. i see no reason for that ; for the clyent is not in fault , who never begins a suit but by the advice of his council learned in the law , whom he pays for his council given . is not this the fault of his councellor ? nor when a judge in the common-pleas hath given an erroneous sentence , it is always likely that the judge of the kings-bench will reverse the judgment ( though there be no question , but as you may find in bracton , and other learned men , he has power to do it ) because being professors of the same common-law , they are perswaded , for the most part , to give the same judgments : for example ; if sir edw. coke in the last terme that he sate lord-chief-justice in the court of common-pleas , had given an erroneous judgment , that when he was removed , and made lord-chief-justice of the kings-bench , would therefore have reversed the said judgment , it is possi - he might , but not very likely . and therefore i do believe there is some other power , by the king constituted , to reverse erroneous judgments , both in the kings-bench , and in the court of common-pleas . la. i think not ; for there is a statute to the contrary , made o , hen. . cap. . in these words ; whereas , as well in plea real , as in plea personal , after judgment in the court of our lord the king , the parties be made to come upon grievous pain , sometimes before the king himself , sometimes before the kings council , and sometimes to the parliament to answer thereof anew , to the great impoverishing of the parties aforesaid , and to the subversion of the common-law of the land , it is ordained and established , that after judgment given in the court of our lord the king , the parties , and their heirs shall be there in peace , until the judgment be undone by attaint , or by error , if there be error , as hath been used by the laws in the times of the kings progenitors . ph. this statute is so far from being repugnant to that , i say , as it seemeth to me to have been made expresly to confirm the same : for the substance of the statu●e is , that there shall be no suit made by either of the parties for any thing adjudged , either in the kings-bench , or court of common-pleas , before the judgment be undone by error , or corruption prov'd ; and that this was the common-law before the making of this statute , which could not be , except there were ( before this statute ) some courts authorised to examine , and correct such errors as by the plaintiff should be assign'd . the inconvenience which by this statute was to be remedied was this , that often judgment given in the kings courts , by which are meant in this place the kings-bench , and court of common-pleas , the party against whom the judgment was given , did begin a new suit , and cause his adversary to come before the king himself ; here by the king himself must be understood the king in person ; for though in a writ by the words coram nobis is understood the kings-bench , yet in a statute it is never so ; nor is it strange , seeing in those days the king did usually sit in court with his council , to hear ( as sometimes king james ) and sometimes the same parties commenced their suit before the privy-council , though the king were absent ; and sometimes before the parliament the former judgment yet standing . for remedy whereof , it was ordained by this statute , that no man should renew his suit , till the former judgment was undone by attaint , or error ; which reversing of a judgment had been impossible , if there had been no court ( besides the aforesaid two courts ) wherein the errors might be assigned , examin'd , and judg'd ; for no court can be esteemed in law , or reason , a competent judge of its own errors . there was therefore before this statute some other court existent for the hearing of errors , and reversing of erroneous judgments . what court this was i enquire not yet , but i am sure it could not be either the parliament or the privy-council , or the court wherein the erroneous judgment was given . la. the doctor and student discourses of this statute , cap. . much otherwise than you do : for the author of that book saith , that against an erroneous judgment all remedy is by this statute taken away . and though neither reason , nor the office of a king , nor any law positive can prohibit the remedying of any injury , much less of an unjust sentence , yet he shows many statutes , wherein a mans conscience ought to prevail above the law. ph. upon what ground can he pretend , that all remedy in this case is by this statute prohibited ? la. he says it is thereby enacted , that judgment given by the kings courts shall not be examin'd in the chancery , parliament , nor elsewhere . ph. is there any mention of chancery in this act ? it cannot be examin'd before the king and his council , nor before the parliament , but you see that before the statute it was examin'd somewhere , and that this statute will have it examin'd there again . and seeing the chancery was altogether the highest office of judicature in the kingdom for matter of equity , and that the chancery is not here forbidden to examine the judgments of all other courts , at least it is not taken from it by this statute . but what cases are there in this chapter of the doctor and student , by which it can be made probable , that when law , and conscience , or law and equity seem to oppugne one another , the written law should be preferr'd ? la. if the defendant wage his law in an action of debt brought upon a true debt , the plaintiff hath no means to come to his debt by way of compulsion , neither by subpoena , nor otherwise , and yet the defendant is bound in conscience to pay him . ph. here is no preferring that , i see , of the law above conscience , or equity ; for the plaintiff in this case loseth not his debt for want either of law , or equity , but for want of proof ; for neither law , nor equity can give a man his right , unless he prove it . la. also if the grand-jury in attaint affirm a false verdict given by the petty-jury , there is no farther remedy , but the conscience of the party . ph. here again the want of proof is the want of remedy ; for if he can prove that the verdict given was false , the king can give him remedy such way as himself shall think best , and ought to do it , in case the party shall find surety , if the same verdict be again affirmed , to satisfie his adversary for the dammage , and vexation he puts him to . la. but there is a statute made since ; viz. eliz. c. . by which that statute of hen. . . is in part taken away ; for by that statute erroneous judgments given in the kings-bench , are by a writ of error to be examin'd in the exchequer-chamber , before the justices of the common-bench , and the barons of the exchequer , and by the preamble of this act it appears , that erroneous judgments are only to be reform'd by the high court of parliament . ph. but here is no mention , that the judgments given in the court of common-pleas should be brought in to be examin'd in the exchequer-chamber , why therefore may not the court of chancery examin●● judgment given in the court of common-pleas ? la. you deny not but , by the antient law of england , the kings-bench may examine the judgment given in the court of common-pleas . ph. 't is true ; but why may not also the court of chancery do the same , especially if the fault of the judgment be against equity , and not against the letter of the law ? la. there is no necessity of that ; for the same court may examine both the letter and the equity of the statute . ph. you see by this , that the jurisdiction of courts cannot easily be distinguished , but by the king himself in his parliament . the lawyers themselves cannot do it ; for you see what contention there is between courts , as well as between particular men. and whereas you say , that law of ▪ hen. . . is by that of eliz. cap. . taken away , i do not find it so . i find indeed a diversity of opinion between the makers of the former and the latter statute , in the preamble of the latter and conclusion of the former . the preamble of the latter is ; forasmuch as erroneous judgments given in the court called the kings-bench , are only to be reformed in the high court of parliament , and the conclusion of the former is , that the contrary was law in the times of the kings progenitors . these are no parts of those laws , but opinions only concerning the antient custom in that case , arising from the different opinions of the lawyers in those different times , neither commanding , nor forbidding any thing ; though of the statutes themselves , the one forbids that such pleas be brought before the parliament , the other forbids it not : but yet if after the act of hen. . such a plea had been brought before the parliament , the parliament might have heard , and determin'd it : for the statute forbids not that ! nor can any law have the force to hinder the law of any jurisdiction whatsoever they please to take upon them , seeing it is a court of the king and of all the people together , both lords , and commons . la. though it be , yet seeing the king ( as sir edw. coke affirms , inst. p. . ) hath committed all his power judicial , some to one court , and some to another , so as if any man would render himself to the judgment of the king , in such case where the king hath committed all his power judicial to others , such a render should be to no effect . and p. . he saith farther ; that in this court the kings of this realm have sitten on the high bench , and the judges of that court on the lower bench , at his feet ; but judicature belongeth only to the judges of that court , and in his presence they answer all motions . ph. i cannot believe that sir edw. coke , how much soever he desir'd to advance the authority of himself , and other justices of the common-law , could mean that the king in the kings-bench sate as a spectator only , and might not have answered all motions , which his judges answer'd , if he had seen cause for it : for he knew that the king was supream judge then in all causes temporal , and is now in all causes both temporal , and ecclesiastical ; and that there is an exceeding great penalty ordained by the laws for them that shall deny it . but sir edw. coke as he had ( you see ) in many places before , hath put a fallacy upon himself , by not distinguishing between committing , and transferring . he that transferreth his power , hath deprived himself of it , but he that committeth it to another to be exercised in his name , and under him , is still in the possession of the same power . and therefore if a man render himself ; that is to say , appealeth to the king from any judge whatsoever , the king may receive his appeal ; and it shall be effectual . la. besides these courts , the kings-bench for pleas of the crown , and the court of common-pleas for causes civil , according to the common-law of england , there is another court of justice , that hath jurisdiction in causes both civil , and criminal , and is as antient a court , at least as the court of common pleas , and this is the court of the lord admiral , but the proceedings therein are according to the laws of the roman empire , and the causes to be determin'd there are such as arise upon the marine sea : for so it is ordain'd by divers statutes , and confirm'd by many precedents . ph. as for the statutes they are always law , and reason also ; for they are made by the assent of all the kingdom , but precedents are judgments one contrary to another ; i mean divers men , in divers ages , upon the same case give divers judgments . therefore i will ask your opinion once more concerning any judgments besides those of the king , as to their validity in law. but what is the difference between the proceedings of the court of admiralty , and the court of common-law ? la. one is , that the court of admiralty proceedeth by two witnesses , without any either grand-jury , to indict , or petty to convict , and the judge giveth sentence according to the laws imperial , which of old time were in force in all this part of europe , and now are laws , not by the will of any other emperor or forraign power , but by the will of the kings of england that have given them force in their own dominions ; the reason whereof seems to be , that the causes that arise at sea are very often between us , and people of other nations , such as are governed for the most part by the self same laws imperial . ph. how can it precisely enough be determin'd at sea , especially near the mouth of a very great river , whether it be upon the sea , or within the land ? for the rivers also are , as well as their banks , within , or a part of one country or other . la. truly the question is difficult , and there have been many suits about it , wherein the question has been , whose jurisdiction it is in . ph. nor do i see how it can be decided , but by the king himself , in case it be not declar'd in the lord admirals letters patents . la. but though there be in the letters patents a power given to hold plea in some certain cases ; to any of the statutes concerning the admiralty the justices of the common-law may send a prohibition to that court , to proceed in the plea , though it be with a non-obstante of any statute . ph. methinks that that should be against the right of the crown , which cannot be taken from it by any subject : for that argument of sir edw. coke's , that the king has given away all his judicial power , is worth nothing ; because ( as i have said before ) he cannot give away the essential rights of his crown , and because by a non-obstante he declares he is not deceived in his grant. la. but you may see by the precedents alledged by sir edw. coke , the contrary has been perpetually practised . ph. i see not that perpetually ; for who can tell , but there may have been given other judgments in such cases , which have either been not preserv'd in the records , or else by sir edw. coke ( because they were against his opinion ) not alledged : for this is possible , though you will not grant it to be very likely ; therefore i insist only upon this , that no record of a judgment is a law , save only to the party pleading , until he can by law reverse the former judgment . and as to the proceeding without juries by two sufficient witnesses , i do not see what harm can proceed from it to the common-wealth , nor consequently any just quarrel that the justice of the common-law can have against their proceedings in the admiralty : for the proof of a fact in both courts lyeth meerly on the witnesses , and the difference is no more , but that in the imperial-law , the judge of the court judgeth of the testimony of the witnesses , and the jury doth in a court of common-law . besides , if a court of common-law should chance to incroach upon the jurisdiction of the admiral , may not he send a prohibition to the court of common-law to forbid their proceeding ? i pray you tell me what reason there is for the one , more than for the other ? la. i know none but long custom ; for i think it was never done . ph. the highest ordinary court in england is the court of chancery , wherein the lord chancellour , or otherwise keeper of the great seal is the only judge . this court is very antient , as appears by sir edw. coke , inst. p. . where he nameth the chancellors of king edgar , king etheldred , king edmund , and king edward the confessor . his office is given to him without letters patents by the kings delivery to him of the great seal of england , and whosoever hath the keeping of the great seal of england hath the same , and the whole jurisdiction that the lord chancellour ever had by the statute of eliz. cap. . wherein it is declar'd , that such is , and always has been the common-law . and sir edw. coke says , he has his name of chancellour from the highest point of his jurisdiction ; viz. a cancellando ; that is , from cancelling the kings letters patents , by drawing strokes through it like a lattice . ph. very pretty . it is well enough known that cancellarius was a great officer under the roman empire , whereof this island was once a member , and that the office came into this kingdom , either with , or in imitation of the roman government . also it was long after the time of the caesars , that this officer was created in the state of rome . for till after septimius severus his time , the emperors did diligently enough take cognizance of causes and complaints for judgments given in the courts of the praetors , which were in rome the same that the judges of the common-law are here ; but by the continual civil wars in after-times for the choosing of emperors , that diligence by little and little ceased ; and afterwards ( as i have read in a very good author of the roman civil law ) the number of complaints being much increased , and being more than the emperor could dispatch , he appointed an officer as his clerk , to receive all such petitions ; and that this clerk caused a partition to be made in a room convenient , in which partition-wall , at the heighth of a mans reach , he placed at convenient distances certain bars ; so that when a suitor came to deliver his petition to the clerk , who was sometimes absent , he had no more to do , but to throw in his petition between those bars , which in latin are called properly cancelli ; not that any certain form of those bars , or any bars at all were necessary ; for they might have been thrown over , though the whole space had been left open ; but because they were cancelli , the clerk attendant , and keeping his office there , was called cancellarius : and any court bar may properly enough be called cancelli , which does not signifie a lattice ; for that is but a meer conjecture grounded upon no history nor grammar , but taken up at first ( as is likely ) by some boy that could find no other word in the dictionary for a lattice but cancelli . the office of this chancellour was at first but to breviate the matter of the petitions , for the easing of the emperor , but complaints encreasing daily , they were too many , considering other businesses more necessary for the emperor to determine , and this caused the emperor to commit the determination of them to the chancellor again ; what reason doth sir edw. coke alledge to prove , that the highest point of the chancellors jurisdiction is to cancel his masters letters patents , after they were sealed with his masters seal ; unless he hold plea concerning the validity of them , or of his masters meaning in them , or of the surreptitious getting of them , or of the abusing of them , which are all causes of equity ? also , seeing the chancellor hath his office only by the delivery of the great seal , without any instruction , or limitation of the process in his court to be used ; it is manifest , that in all causes whereof he has the hearing , he may proceed by such manner of hearing , and examining of witnesses ( with jury , or without jury ) as he shall think fittest for the exactness , expedition and equity of the decrees . and therefore , if he think the custome of proceeding by jury , according to the custome of england in courts of common-law , tend more to equity ( which is the scope of all the judges in the world , or ought to be ) he ought to use that method , or if he think better of another proceeding , he may use it , if it be not forbidden by a statute . la. as for this reasoning of yours i think it well enough ; but there ought to be had also a reverend respect to customs not unreasonable ; and therefore , i think , sir edw. coke says not amiss ; that in such cases , where the chancellor will proceed by the rule of the common-law , he ought to deliver the record in the kings-bench ; and also it is necessary for the lord chancellor to take care of not exceeding as it is limited by statutes . ph. what are the statutes by which his jurisdiction is limited ? i know that by the eliz. cap. . he cannot reverse a judgment given in the kings-bench for debt , detinue , &c. nor before the statute could he ever by virtue of his office , reverse a judgment in pleas of the crown , given by the kings-bench that hath the cognizance of such pleas , nor need he ; for the judges themselves , when they think there is need to relieve a man opprest by ill witnesses , or power of great men prevailing on the jury , or by error of the jury , though it be in case of felony , may stay the execution , and inform the king , who will in equity relieve him . as to the regard we ought to have to custome , we will consider of it afterward . la. first in a parliament holden the th of rich. . the commons petitioned the king , that neither the chancellor , nor other chancellor do make any order against the common-law , nor that any judgment be given without due process of law. ph. this is no unreasonable petition ; for the common-law is nothing else but equity : and by this statute it appears , that the chancellors , before that statute , made bolder with the courts of common law , than they did afterward ; but it does not appear that common-law in this statute signifies any thing else , but generally the law temporal of the realm , nor was this statute ever printed , that such as i might take notice of it ; but whether it be a statute or not , i know not , till you tell me what the parliament answer'd to this petition . la. the kings answer was , the wages heretofore shall stand , so as the kings royalty be saved . ph. this is slatly against sir edw. coke , concerning the chancery . la. in another parliament , rich. . it is enacted , at the petition of the commons ; that forasmuch as people were compelled to come before the kings council , or in chancery , by writs grounded upon untrue suggestions , that the chancellor for the time being , presently after such suggestions , be duly found , and proved untrue , shall have power to ordain , and award dammages , according to his discretion , to him which is so travelled unduly , as is aforesaid . ph. by this statute it appears , that when a complaint is made in chancery upon undue suggestions , the chancellor shall have the examination of the said suggestions , and as he may avoid dammages when the suggestions are untrue , so he may also proceed by process to the detemining of the cause , whether it be real , or personal , so it be not criminal . la. also the commons petitioned in a parliament of hen. . not printed ; that no writs , nor privy-seals be sued out of chancery , exchequer , or other places to any man to appear at a day , upon a pain , either before the king and his council , or in any other place , contrary to the ordinary course of common-law . ph. what answer was given to this petition by the king ? la. that such writs should not be granted without necessity . ph. here again you see the king may deny , or grant any petitions in parliament , either as he thinks it necessary , as in this place , or as he thinks it prejudicial , or not prejudicial to his royalty , as in the answer of the former petition , which is a sufficient proof , that no part of his legislative power , or any other essential part of royalty can be taken from him by a statute . now seeing it is granted , that equity is the same thing with the law of reason , and seeing sir edw. coke , inst. sect. . defines equity to be a certain reason comprehended in no writing , but consisting only in right reason , which interpreteth and amendeth the written-law ; i would fain know to what end there should be any other court of equity at all , either before the chancellor or any other person , besides the judges of the civil , or common-pleas ? nay i am sure you can alledge none but this , that there was a necessity of a higher court of equity , than the courts of common-law , to remedy the errors in judgment given by the justices of inferior courts , and the errors in chancery were irrevocable , except by parliament , or by special commission appointed thereunto by the king. la. but sir edw. coke says , that seeing matters of fact by the common-law are tryable by a jury of men , this court should not draw the matter ad aliud examen ; i. e. to another kind of examination , viz. by deposition of witnesses , which should be but evidence to a jury . ph. to the deposition of witnesses any more or less , then to evidence to the lord-chancellor ? 't is not therefore another kind of examination ; nor is a jury more capable of duly examining witnesses than a lord-chancellor . besides , seeing all courts are bound to judge according to equity , and that all judges in a case of equity , may sometimes be deceiv'd , what harm is there to any man , or to the state , if there be a subordination of judges in equity , as well as of judges in common-law ? seeing it is provided by an act of parliament to avoid vexation , that subpoenas shall not be granted , till surety be found to satisfie the party so grieved and vexed for his dammages and expences , if so be the matter may not be made good which is contained in the bill . la. there is another statute of hen. . cap. . wherein there is a proviso cited by sir edw. coke in these words ; provided , that no matter determinable by the laws of the realm , shall be by the said act determined in other form , then after the course of the same law in the kings courts having the determination of the same law. ph. this law was made but for seven years , and never continued by any other parliament , and the motive of this law was the great riots , extortions , oppressions , &c. used during the time of the insurrection of john cade , and the indictments and condemnations wrongfully had by this usurped authority ; and thereupon the parliament ordained , that for years following no man should disobey any of the kings writs under the great seal , or should refuse to appear upon proclamation before the kings council , or in the chancery , to answer to riots , extortions , &c. for the first time he should lose , &c. wherein there is nothing at all concerning the jurisdiction of the chancery , or any other court , but an extraordinary power given to the chancery , and to the kings privy-council , to determine of those crimes which were not before that time tryable , but only by the kings-bench , or special commission : for the act was made expresly for the punishment of a great multitude of crimes committed by those that had acted by the said cade's authority ; to which act the proviso was added , which is here mention'd , that the proceeds in those courts of chancery , and of the kings council should be such , as should be used in the courts , to which the said courts , before this act was made , do belong . that is to say , such causes as were criminal , should be after the order of the kings-bench , and such causes as were not criminal , but only against equity , should be tryed after the manner of the chancery , or in some cases according to the proceedings in the exchequer . i wonder why sir edw. coke should cite a statute ( as this is ) above two hundred years before expir'd , and other two petitions ; as if they were statutes , when they were not passed by the king ; unless he did it on purpose to diminish ( as he endeavours to do throughout his institutes ) the kings authority , or to insinuate his own opinions among the people for the law of the land : for that also he endeavours by inserting latin sentences , both in his text , and in the margin , as if they were principles of the law of reason , without any authority of antient lawyers , or any certainty of reason in themselves , to make men believe they are the very grounds of the law of england . now as to the authority you ascribe to custome , i deny that any custome of its own nature , can amount to the authority of a law : for if the custom be unreasonable , you must with all other lawyers confess that it is no law , but ought to be abolished ; and if the custom be reasonable , it is not the custom , but the equity that makes it law. for what need is there to make reason law by any custom how long soever when the law of reason is eternal ? besides , you cannot find in any statute ( though lex & consuetudo be often mentioned as things to be followed by the judges in their judgments ) that consuetudines , that is to say , customs , or usages did imply any long continuance of former time ; but that it signified such use , and custom of proceeding , as was then immediately in being before the making of such statute . nor shall you find in any statute the word common-law , which may not be there well interpreted for any of the laws of england temporal ; for it is not the singularity of process used in any court ; that can distinguish it so as to make it a different law from the law of the whole nation . la. if all courts were ( as you think ) courts of equity , would it not be incommodious to the common-wealth ? ph. i think not ; unless perhaps you may say , that seeing the judges , whether they have many , or few causes to be heard before them , have but the same wages from the king , they may be too much inclin'd to put off the causes they use to hear ( for the easing of themselves ) to some other court ; to the delay of justice , and dammage of the parties suing . la. you are very much deceiv'd in that ; for on contrary the contention between the courts for jurisdiction , is of who shall have most causes brought before them . ph. i cry you mercy , i smelt not that . la. seeing also all judges ought to give their sentence according to equity ; if it should chance that a written law should be against the law of reason , which is equity , i cannot imagine in that case how any judgment can be righteous . ph. it cannot be that a written law should be against reason : for nothing is more reasonable than that every man should obey the law , which he hath himself assented to ; but that is not always the law which is signified by grammatical construction of the letter , but that which the legislator thereby intended should be in force ; which intention , i confess , is a very hard matter many times to pick out of the words of the statute , and requires great ability of understanding , and greater meditations , and considerations of such conjuncture of occasions , and incommodities as needed a new law for a remedy ; for there is scarce any thing so clearly written , that when the cause thereof is forgotten , may not be wrested by an ignorant grammarian , or a cavilling logician , to the injury , oppression , or perhaps destruction of an honest man. and for this reason , the judges deserve that honour and profit they enjoy ; since the determination of what particular causes every particular court should have cognizance , is a thing not yet sufficiently explained , and is in it self so difficult , as that the sages of the law themselves ( the reason sir edw. coke will leave to law it self ) are not yet agreed upon it ; how is it possible for a man that is no professed , or no profound lawyer , to take notice in what court he may lawfully begin his suit , or give council in it to his client ? la. i confess that no man can be bound to take notice of the jurisdiction of courts , till all the courts be agreed upon it amongst themselves ; but what rule to give judgment by a judge can have , so as never to contradict the law written , nor displease his legislator i understand not . ph. i think he may avoid both , if he take care by his sentence , that he neither punish an innocent , nor deprive him of his ●ammages due from one that maliciously ●●eth him without reasonable cause , which ●o the most of rational men , and unbiassed ●s not , in my opinion , very difficult . and though a judge should ( as all men may do ) erre in his judgment , yet there is always such power in the laws of england , as may content the parties , either in the chancery , or by commissioners of their own choosing , authorized by the king ; for every man ●s bound to acquiesce in the sentence of the judges he chooseth . la. in what cases can the true construction of the letter be contrary to the meaning of the lawmaker ? ph. very many , whereof sir edw. coke nameth , fraud , accident , and breach of confidence ; but there be many more ; for there be a very great many reasonable exceptions almost to every general rule , which the makers of the rule could not foresee ; and very many words in every statute , especially long ones , that are , as to grammar , of ambiguous signification , and yet to them that know well , to what end the statute was made , perspicuous enough ; and many connections of doubtful reference , which by a grammarian may be cavill'd at , though the intention of the lawmaker be never so perspicuous . and these are the difficulties which the judges ought to master , and can do it in respect of their ability for which they are chosen , as well as can be hoped for ; and yet there are other men can do the same , or else the judges places could not be from time to time supplyed . the bishops commonly are the most able and rational men , and obliged by their profession to study equity , because it is the law of god , and are therefore capable of being judges in a court of equity . they are the men that teach the people what is sin ; that is to say , they are the doctors in cases of conscience . what reason then can you shew me , why it is unfit , and hurtful to the common-wealth , that a bishop should be a chancellor , as they were most often before the time of hen. . and since that time once in the raign of king james ? la. but sir ed. says , that soon after that a chancellor was made , which was no professor of the law , he finds in the rolls of the parliament a grievous complaint by the whole body of the realm , and a petition that the most wise and able men within the realm might be chosen chancellors . ph. that petition was reasonable , but it does not say which are abler men , the judges of the common law , or the bishops . la. that is not the great question as to the ability of a judge ; both of one , and the other there are able men in their own way ; but when a judge of equity has need , almost in every case , to consider as well the statute-law , as the law of reason , he cannot perform his office perfectly , unless he be also ready in the statutes . ph. i see no great need he has to be ready in the statutes ; in the hearing of a cause do the judges of the common-law inform the council at the bar what the statute is , or the council the judges ? la. the council inform the judges . ph. why may they not as well inform the chancellor ? unless you will say , that a bishop understands not as well as a lawyer what is sense , when he hears it read in english. no ; no ; both the one , and the other are able enough , but to be able enough is not enough ; when , not the difficulty of the case only , but also the passion of the judge is to be conquer'd . i forgot to tell you of the statute of the edw. . cap. . that if any person think himself grieved contrary to any of the articles above written , or others contained in divers statutes , will come to the chancery , or any for him , and thereof make his complaint , he shall presently there have remedy by force of the said articles , and statutes , without elsewhere pursuing to have remedy . by the words of this statute it is very apparent , in my opinion , that the chancery may hold plea upon the complaint of the party grieved , in any case tryable at the common-law , because the party shall have present remedy in that court , by force of this act , without pursuing for remedy elsewhere . la. yes ; but sir edw. coke answers this objection , inst. p. . in this manner . these words , says he , he shall have remedy , signifie no more but that he shall have presently there a remedial writ grounded upon those statutes to give him remedy at the common-law . ph. very like sir edw. coke thought as soon as the party had his writ , he had his remedy , though he kept the writ in his pocket , without pursuing his complaint elsewhere ; or else he thought , that in the common-bench was not elsewhere than in the chancery . la. then there is the court of — ph. let us stop here ; for this which you have said satisfies me , that seek no more than to distinguish between justice , and equity ; and from it i conclude , that justice fulfils the law , and equity interprets the law ; and amends the judgments given upon the same law : wherein i depart not much from the definition of equity , cited in sir edw. coke , inst. sect. . viz. equity is a certain perfect reason that interpreteth , and amendeth the law written ; though i construe it a little otherwise than he would have done ; for no one can mend a law but he that can make it , and therefore i say not it amends the law , but the judgments only when they are erroneous . and now let us consider of crimes in particular ( the pleas whereof are commonly called the pleas of the crown ) and of the punishments belonging to them ; and first of the highest crime of all which is high treason . tell me what is high treason . of crimes capital . la. the first statute that declareth what is high treason , is the statute of the edw. . in these words . whereas divers opinions have been before this time , in what case treason shall be said , and in what not ; the king , at the request of the lords , and of the commons , hath made declaration in the manner as hereafter follows ; that is to say , when a man doth compass , or imagine the death of our lord the king , of our lady the queen , or of their eldest son and heir ; or if a man doth violate the kings companion , or the kings eldest daughter unmarried , or the wife of the kings eldest son and heir ; or if a man do levy war against our lord the king in his realm , or be adherent to the kings enemies in his realm , giving to them aid , and comfort in the realm , or elsewhere , and thereof be provably attainted by open deed , by people of their condition . and if a man counterfeit the kings great , or privy-seal , or his money . and if a man bring false money into this realm counterfeit to the money of england , as the money called lushburgh , or other like to the said money of england , knowing the money to be false , to merchandize , and make payment in deceit of our said lord the king , and of his people . and if a man slay the chancellor , treasurer , or the kings justices of the one bench , or the other , justices in eyre , or justices of assises , and all other justices assigned to hear , and determine , being in their places , and doing their offices . and is to be understood in the cases above rehearsed , that that ought to be adjudged treason , which extends to our royal lord the king , and his royal majesty , and of such treason the forfeiture of the escheats pertains to our lord the king , as well the lands and tenements holden of others as himself . and moreover there is another manner of treason ; that is to say , when a servant slayeth his master , or a wife her husband ; or when a man secular , or religious slayeth his prelate , to whom he oweth faith , and obedience ; and of such treason the escheats ought to pertain to every lord of his own fee. and because many other like cases of treason may happen in time to come , which a man cannot think , nor declare at this present time , it is accorded , that if any case supposed treason , which is not above specified , doth happen before any justices , the justices shall tarry without giving any judgment of the treason till the cause be shewed , and declared before the king and his parliament , whether it ought to be adjudged treason , or other felony . ph. i desir'd to understand what treason is , wherein no enumeration of facts can give me satisfaction . treason is a crime of it self , malum in se , and therefore a crime at the common-law , and high treason the highest crime at the common-law that can be : and therefore not the statute only , but reason without a statute makes it a crime . and this appears by the preamble , where it is intimated , that all men , though of divers opinions did condemn it by the name of treason , though they knew not what treason meant , but were forced to request the king to determine it . that which i desire to know is , how treason might have been defined without the statute , by a man that has no other faculty to make a definition of it , than by meer natural reason . la. when none of the lawyers have done it , you are not to expect that i should undertake it on such a sudden . ph. you know that salus populi is suprema lex ; that is to say , the safety of the people , is the highest law ; and that the safety of the people of a kingdom consisteth in the safety of the king , and of the strength necessary to defend his people , both against forraign enemies , and rebellious subjects . and from this i infer , that to compass ( that is ) to design the death of the then present king , was high treason before the making of this statute , as being a designing of a civil war , and the destruction of the people . . that the design to kill the kings wife , or to violate her chastity , as also to violate the chastity of the kings heir apparent , or of his eldest daughter unmarryed , as tending to the destruction of the certainty of the kings issue , and by consequence by raising of contentions about the crown , and destruction of the people in succeeding time by civil war , was therefore high treason before this statute . . that to levy war against the king within the realm , and aiding the kings enemies , either within , or without the realm , are tending to the kings destruction , or disherison , and was high treason , before this statute by the common-law . . that counterfeiting the principal seals of the kingdom , by which the king governeth his people , tendeth to the confusion of government , and consequently to the destruction of the people , and was therefore treason before the statute . . if a souldier design the killing of his general , or other officer in time of battel , or a captain hover doubtfully with his troops , with intention to gain the favour of him that shall chance to get the victory , it tendeth to the destruction both of king , and people , whether the king be present , or absent , and was high treason before the statute . . if any man had imprisoned the kings person , he had made him incapable of defending his people , and was therefore high treason before the statute . . if any man had , with design to raise rebellion against the king , written , or by words advisedly uttered , denyed the king regnant to be their lawful king , he that wrought , preached , or spoke such words , living then under the protection of the kings laws , it had been high treason before the statute for the reasons aforesaid . and perhaps there may be some other cases upon this statute , which i cannot presently think upon ; but the killing of a justice , or other officer as is determin'd by the statute , is not otherwise high treason , but by the statute . and to distinguish that which is treason by the common-law , from all other inferior crimes ; we are to consider , that if such high treason should take effect , it would destroy all laws at once ; and being done by a subject , 't is a return to hostility by treachery ; and consequently , such as are traytors may by the law of reason be dealt withal , as ignoble and treacherous enemies ; but the greatest of other crimes , for the most part ; are breaches of one only , or at least of very few laws . la. whether this you say be true , or false , the law is now unquestionable by a statute made in and of queen mary , whereby there is nothing to be esteemed treason , besides those few offences specially mentioned in the act of ed. . ph. amongst these great crimes the greatest is that which is committed by one that has been trusted , and loved by him whose death he so designeth : for a man cannot well take heed of those , whom he thinks he hath obliged , whereas an open enemy gives a man warning before he acteth . and this it is for which the statute hath declared , that it is another kind of treason , when a servant killeth his master , or mistress , or a wife killeth her husband , or a clerk killeth his prelate ; and i should think it petty treason also , though it be not within the words of the statute ; when a tenant in fee , that holdeth by homage , and fealty , shall kill the lord of his fee ; for fealty is an oath of allegiance to the lord of the fee ; saving he may not keep his oath in any thing sworn to , if it be against the king. for homage , as it is expressed in a statute of edw. . is the greatest submission that is possible to be made to one man by another ; for the tenant shall hold his hands together between the hands of his landlord , and shall say thus ; i become your man from this day forth for life , for member and for worldly honour , and shall owe that my faith for the lands that i shall hold of you , saving the faith that i owe unto our soveraign lord the king , and to many other lords : which homage , if made to the king , is equivalent to a promise of simple obedience , and if made to another lord , there is nothing excepted but the allegiance to the king ; and that which is called fealty , is but the same confirmed by an oath . la. but sir edw. coke , inst. p. . denies that a traytor is in legal understanding the kings enemy ; for enemies ( saith he ) be those that be out of the allegiance of the king ; and his reason is ; because , if a subject joyn with a forraign enemy , and come into england with him , and be taken prisoner here , he shall not be ransomed , or proceeded with as an enemy shall , but he shall be taken as a traytor to the king. whereas an enemy coming in open hostility , and taken , shall either be executed by martial-law , or ransomed ; for he cannot be indicted of treason , for that he never was in the protection and ligeance of the king , and the indictment of the treason saith , contra ligeantiam suam debitam . ph. this is not an argument worthy of the meanest lawyer . did sir edw. coke . think it is possible for a king lawfully to kill a man , by what death soever without an indictment , when it is manifestly proved he was his open enemy ? indictment is a form of accusation peculiar to england , by the command of some king of england , and retained still , and therefore a law to this country of england ; but if it were not lawful to put a man to death otherwise than by an indictment no enemy could be put to death at all in other nations , because they proceed not , as we do , by indictment . again , when an open enemy is taken and put to death by judgment of martial-law ; it is not the law of the general or council of war , that an enemy shall be thus proceeded with , but the law of the king contained in their commissions ; such as from time to time the kings have thought fit , in whose will it always resteth , whether an open enemy , when he is taken , shall be put to death , or no , and by what death ; and whether he shall be ransomed , or no , and at what price ? then for the nature of treason by rebellion ; is it not a return to hostility ? what else does rebellion signifie ? william the conqueror subdued this kingdom ; some he killed ; some upon promise of future obedience he took to mercy , and they became his subjects , and swore allegiance to him ; if therefore they renew the war against him , are they not again open enemies ; or if any of them lurking under his laws , seek occasion thereby to kill him , secretly , and come to be known , may he not be proceeded against as an enemy , who though he had not committed what he design'd , yet had certainly a hostile design ? did not the long parliament declare all those for enemies to the state that opposed their proceedings against the late king ? but sir edw. coke does seldom well distinguish when there are two divers names for one and the same thing ; though one contain the other , he makes them always different , as if it could not be that one and the same man should be both an enemy , and a traytor . but now let us come to his comment upon this statute ; the statute says ( as it is printed in english ) when a man doth compass , or imagine the death of our lord the king , &c. what is the meaning of the word compassing , or imagining ? la. on this place sir edw. coke says , that before the making of this act , voluntas reputabatur pro facto , the will was taken for the deed. and so saith bracton , spectatur voluntas , & non exitus ; & nihil interest utrum quis occidat , aut causam praebeat ; that is to say , the cause of the killing : now sir edw. coke says , this was the law before the statute ; and that to be a cause of the killing , is to declare the same by some open deed tending to the execution of his intent , or which might be cause of death . ph. is there any english-man can understand , that to cause the death of a man , and to declare the same is all one thing ? and if this were so , and that such was the common-law before the statute , by what words in the statute is it taken away ? la. it is not taken away , but the manner how it must be prov'd is thus determin'd , that it must be prov'd by some open deed , as providing of weapons , powder , poyson , assaying of armour , sending of letters , &c. ph. but what is the crime it self which this statute maketh treason ? for as i understand the words , to compass , or imagine the kings death , &c. the compassing ( as it is in the english ) is the only thing which is made high treason ; so that not only the killing , but the design is made high treason ; or as it is in the french record , fait compasser ; that is to say , the causing of others to compass , or design the kings death is high treason ; and the words par overt fait , are not added as a specification of any treason , or other crime , but only of the proof that is requir'd by the law. seeing then the crime is the design and purpose to kill the king , or cause him to be killed , and lyeth hidden in the breast of him that is accused ; what other proof can there be had of it than words spoken or written . and therefore if there be sufficient witness , that he by words declared , that he had such a design , there can be no question , but that he is comprehended within this statute : sir edw. coke doth not deny , but that if he confess this design , either by word , or writing , but that he is within the statute . as for that common saying , that bare words may make a heretick , but not a traytor , which sir edw. coke on this occasion maketh use of , they are to little purpose ; seeing that this statute maketh not the words high treason , but the intention , whereof the words are but a testimony : and that common-saying is false as it is generally pronounced ; for there were divers statutes made afterwards , though now expir'd , which made bare words to be treason without any other deed : as , el. cap. . & . el. cap. . if a man should publickly preach , that the king were an usurper , or that the right of the crown belonged to any other than the king that reigned , there is no doubt but it were treason , not only within this statute of e. . but also within the statute of ed. . c. . which are both still in force . la. not only so ; but if a subject should counsel any other man to kill the king , queen , or heir apparent to the crown , it would at this day be judged high treason ; and yet it is no more than bare words . in the third year of king james , henry garnet , a jesuit-priest , to whom some of the gun-powder traytors had revealed their design by way of confession , gave them absolution , without any caution taken for their desisting from their purpose , or other provision against the danger , was therefore condemned , and executed as a traytor , though such absolution were nothing else but bare words . also i find in the reports of sir john davis , attorney-general for ireland ; that in the time of king henry the th , a man was condemned of treason , for saying the king was a natural fool , and unfit to govern ; but yet this clause in the statute of edw. . viz. that the compassing there mentioned ought to be proved by some overt act , was by the framers of the statute , not without great wisdom , and providence inserted : for as sir edw. coke very well observeth , when witnesses are examin'd concerning words only , they never or very rarely agree precisely about the words they swear to . ph. i deny not but that it was wisely enough done . but the question is not here of the treason ( which is either fact , or design ) but of the proof , which , when it is doubtful , is to be judged by a jury of lawful men : now whether think you is it a better proof of a mans intention to kill , that he declares that same with his own mouth , so as it may be witnessed , or that he provide weapons , powder , poyson , or assay arms ? if he utter his design by words , the jury has no more to do than to consider the legallity of the vvitnesses , the harmony of their testimonies , or whether the words were spoken advisedly ? for they might have been uttered in a disputation for exercise only , or when he that spake them had not the use of reason , nor perhaps any design , or wish at all towards the execution of what he talked of : but how a jury from providing , or buying of armour , or buying of gun-powder , or from any other overt act , not treason in it self , can infer a design of murdering the king , unless there appear some words also , signifying to what end he made such provision , i cannot easily conceive . therefore as the jury on the whole matter vvords and deeds shall ground their judgment concerning design , or not design , so , in reason , they ought to give verdict . but to come to the treason of counterfeiting the great , or privy-seal , seeing there are so many ways for a cheating fellow to make use of these seals , to the cousening of the king , and his people ; why are not all such abuses high-treason , as well as the making of a false seal ? la. so they are : for sir edw. coke produceth a record of one that was drawn , and hang'd for taking the great seal from an expir'd patent , and fastning it to a counterfeit commission to gather money : but he approveth not the judgment , because it is the judgment for petty treason ; also because the jury did not find him guilty of the offence laid in the indictment , which was the counterfeiting of the great-seal , but found the special matter , for which the offender was drawn , and hang'd . ph. seeing this crime of taking the great seal from one vvriting , and fastning it to another was not found high treason by the jury , nor could be found upon special matter to be the other kind of treason mentioned in the same statute ; what ground had either the jury to find it treason , or the judge to pronounce sentence upon it ? la. i cannot tell . sir edw. coke seems to think it a false record ; for hereupon he saith by way of admonition to the reader , that hereby it appeareth how dangerous it is to report a case by the ear. ph. true ; but he does not make it apparent , that this case was untruly reported , but on the contrary confesseth , that he had perused the same record ; and a man may ( if it may be done without proof of the falsity ) make the same objection to any record whatsoever . for my part , seeing this crime produced the same mischief that ariseth from counterfeiting , i think it reason to understand it as within the statute : and for the difference between the punishments ( which are both of them capital ) i thing it is not worthy to be stood upon ; seeing death , which is , vltimum supplicium , is a satisfaction to the law ; as sir edw. coke himself hath in another place affirm'd . but let us now proceed to other crimes . la. appendent to this is another crime called misprision of treason ; which is the concealing of it by any man that knows it ; and it is called misprision from the french mespriser , which signifies to contemn , or undervalue ; for it is no small crime in any subject , so little to take to heart a known danger to the kings person , and consequently , to the whole kingdom , as not to discover not only what he knows , but also what he suspecteth of the same , that the truth therefore may be examin'd . but for such discovery , tho the thing prove false , the discoverer shall not , as i think , be taken for a false accuser ; if for what he directly affirms , he produce a reasonable proof , and some probability for his suspition ; for else the concealment will seem justifiable by the interest , which is to every man allowed in the preservation of himself from pain and dammage . ph. this i consent to . la. all other crimes meerly temporal are comprehended under felony , or trespass . ph. what is the meaning of the word felony ? does it signifie any thing that is in its own nature a crime , or that only which is made a crime by some statute ? for i remember some statutes that make it felony to transport horses , and some other things out of the kingdom ; which transportation before such statutes made , and after the repealing of the same , was no greater crime than any other usual traffick of a merchant . la. sir edw. coke derives the word felony from the latin word fel , the gall of a living creature , and accordingly defines felony to be an act done animo felleo ; that is to say , a bitter a cruel act. ph. etymologies are no definitions , and yet when they are true they give much light towards the finding out of a definition ; but this of sir edw. coke's carries with it very little of probability ; for there be many things made felony by the statute-law , that proceed not from any bitterness of mind at all , and many that proceed from the contrary . la. this is matter for a critick , to be pickt out of the knowledge of history and forraign languages , and you may perhaps know more of it than i do . ph. all that i , or , i think , any other can say in this matter will amount to no more than a reasonable conjecture , insufficient to sustain any point of controversie in law. the word is not to be found in any of the old saxon laws , set forth by mr. lambert , nor in any statute printed before that of magna charta ; there it is found . now magna charta was made in the time of hen. the d , grand-child to hen. the d , duke of anjou , a french-man born , and bred in the heart of france , whose language might very well retain many words of his ancestors the german-franks , as ours doth of the german-saxons ; as also many words of the language of the gaules , as the gaules did retain many words of the greek colonie planted at marseilles . but certain it is the french lawyers at this day use the word felon , just as our lawyers use the same ; whereas the common people of france use the word filou in the same sence ; but filou signifieth not the man that hath committed such an act , as they call felony ; but the man that maketh it his trade to maintain himself by the breaking and contemning of all laws generally ; and comprehendeth all those unruly people called cheaters , cut-purses , pick-locks , catch-cloaks , coyners of false money , forgers , thieves , robbers , murderers , and whosoever make use of iniquity on land , or sea , as a trading , or living . the greeks upon the coast of asia , where homer liv'd , were they that planted the colony of marseilles ; they had a word that signified the same with felon , which was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , filetes , and this filetes of homer signifies properly the same that a felon signifies with us : and therefore homer makes apollo to call mercury 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , fileteen , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; i insist not upon the truth of this etymologie ; but it is certainly more rational than the animus felleus of sir edw. coke . and for the matter it self it is manifest enough , that which we now call murder , robbery , theft , and other practices of felons , are the same that we call felony , and crimes in their own nature without the help of statute . nor is it the manner of punishment that distinguisheth the nature of one crime from another ; but the mind of the offender and the mischief he intendeth , considered together with the circumstances of person , time , and place . la. of felonies , the crime is murder . ph. and what is murder ? la. murder is the killing of a man upon malice forethought , as by a weapon , or by poyson , or any way , if it be done , upon antecedent meditation , or thus , murder is the killing of a man in cold blood. ph. i think there is a good definition of murder set down by statute , hen. . cap. . in these words : murder from henceforth shall not be judged before our justices , where it is found misfortune only , but it shall take place in such as are slain by felony . and sir edw. coke interpreting this statute , inst. p. . saith ; that the mischief before this statute was , that he that killed a man by misfortune , as by doing any act that was not against law , and yet against his intent , if the death of a man ensued , this was adjudged murder . but i find no proof that he alledgeth , nor find i any such law amongst the laws of the saxons , set forth by mr. lambert . for the word , it is ( as sir edw. coke noteth ) old saxon , and amongst them it signified no more than a man slain in the field , or other place , the author of his death not known . and according hereunto , bracton , who lived in the time of magna charta , defineth it fol. , thus ; murder is the secret killing of a man , when none besides the killer , and his companions saw , or knew it ; so that it was not known who did it , nor fresh-suit could be made after the doer ; therefore every such killing was called murder before it could be known whether it could be by felony , or not : for a man may be found dead that kills himself , or was lawfully kill'd by another . this name of murder came to be the more horrid , when it was secretly done , for that it made every man to consider of their own danger , and him that saw the dead body to boggle at it , as a horse will do at a dead horse ; and to prevent the same they had laws in force to amerce the hundred where it was done , in a sum defined by law to be the price of his life : for in those dayes the lives of all sorts of men were valued by money ; and the value set down in their written laws . and therefore sir edw. coke was mistaken in that he thought that killing a man by misfortune before the statute of marlebridge was adjudged murder , and those secret murders were abominated by the people , for that they were lyable to so great a pecuniary punishment for suffering the malefactor to escape . but this grievance was by canutus , when he reign'd , soon eased : for he made a law , that the countrey in this case , should not be charged , unless he were an english-man that was so slain ; but if he were a french-man ( under which name were comprehended all forraigners , and especially the normans ) though the slayer escaped , the county was not to be amerced . and this law , though it were very hard , and chargeable when an english-man was so slain , for his friend to prove he was an english-man , and also unreasonable to deny the justice to a stranger ; yet was it not repealed till the th of king ed. the d. by this you see that murder is distinguished from homicide by the statute-laws , and not by any common-law without the statute ; and that it is comprehended under the general name of felony . la. and so also is petit treason , and i think so is high treason also ; for in the abovesaid statute in the ed. d. concerning treasons there is this clause . and because that many other like cases of treason , may happen in time to come , which a man cannot think , or declare at the present time ; it is accorded , that if any other case , supposed treason which is not above specified , doth happen before any the justices , the justices shall tarry without any going to judgment of the treason , till the cause be shewed , and declared before the king and his parliament whether it be treason , or other felony ; which thereby shews that the king and parliament thought that treason was one of the sorts of felony . ph. and so think i. la. but sir edw. coke denies it to be so at this day ; for inst. sect. . at the word felony , he saith ; that in antient time this word felony was of so large an extent , as that it included high treason — but afterwards it was resolved , that in the kings pardon , or charter , this word felony should extend only to common felonies — and at this day , under the word felony by law is included petit treason , murder , homicide , burning of houses , burglary , robbery , rape , &c. chance-medley , se defendendo , and petit larceny . ph. he says it was resolv'd , but by whom ? la. by the justices of assize in the time of hen. . as it seems in the margin . ph. have justices of assize any power by their commission to alter the language of the land , and the received sence of words ? or in the question in what case felony shall be said , it is referred to the judges to determine ; as in the question in what case treason shall be said it is referred by the statute of edw. the d. to the parliament ? i think not ; and yet perhaps they may be disobliged to disallow a pardon of treason , when mentioning all felonies it nameth not treason , nor specifies it by any description of the fact. la. another kind of homicide there is simply called so , or by the name of manslaughter , and is not murder , and that is when a man kills another man upon suddain quarrel , during the heat of blood. ph. if two meeting in the street chance to strive who shall go nearest to the wall , and thereupon fighting , one of them kills the other , i believe verily he that first drew his sword did it of malice forethought , though not long forethought ; but whether it be felony or no , it may be doubted . it is true , that the harm done is the same as if it had been done by felony ; but the wickedness of the intention was nothing near so great . and supposing it had been done by felony , then 't is manifest by the statute of marlebridge , that it was very murder . and when a man for a word , or a trifle shall draw his sword , and kill another man , can any man imagine that there was not some precedent malice ? la. 't is very likely there was malice more or less , and therefore the law hath ordained for it a punishment equal to that of murder , saving that the offender shall have the benefit of his clergy . ph. the benefit of clergy comes in upon another account , and importeth not any extenuation of the crime ; for it is but a relick of the old usurped papal priviledge , which is now by many statutes so pared off , as to spread but to few offences , and is become a legal kind of conveying mercy , not only to the clergy , but also to the laity . la. the work of a judge you see is very difficult , and requires a man that hath a faculty of well distinguishing of dissimilitudes of such cases as common judgments think to be the same . a small circumstance may make a great alteration , which a man that cannot well discern , ought not to take upon him the office of a judge . ph. you say very well ; for if judges were to follow one anothers judgments in precedent cases , all the justice in the world would at length depend upon the sentence of a few learned , or unlearned , ignorant men , and have nothing at all to do with the study of reason . la. a third kind of homicide is when a man kills another , either by misfortune , or in a necessary defence of himself , or of the king , or of his laws ; for such killing is neither felony , nor crime , saving ( as sir edw. coke says , . inst. p. . ) that if the act that a man is a doing when he kills another man be unlawful , then it is murder . as if a. meaneth to steal a deer in the park of b. shooteth at the deer , and by the glance of the arrow killeth a boy that is hidden in a bush ; this is murder , for that the act was unlawful ; but if the owner of the park had done the like , shooting at his own deer , it had been by misadventure , and no felony . ph. this is not so distinguished by any statute , but is the commonly only of sir ed. coke . i believe not a word of it . if a boy be robbing an apple-tree , and falling thence upon a man that stands under it , and breaks his neck , but by the same chance saveth his own life , sir edw. coke , it seems , will have him hanged for it , as if he had fallen of prepensed malice . all that can be called crime in this business is but a simple trespass , to the dammage perhaps of sixpence or a shilling . i confess the trespass was an offence against the law , but the falling was none , nor was it by the trespass , but by the falling that the man was slain ; and as he ought to be quit of the killing , so he ought to make restitution for the trespass . but i believe the cause of sir edw. coke's mistake was his not well understanding of bracton , whom he cites in the margin : for he saith thus : sed hic erit distinguendum , utrum quis dederit operam rei licitae , vel illicitae ; si illicitae , ut si bapidem projiciebat quis versus locum per quem consueverunt homines transitum facere , vel dum insequitur equum , vel bovem , & aliquis ab equo , vel a bove percussus fuerit , & hujusmodi , hoc imputatur ei , i. e. but here we are to distinguish whether a man be upon a lawful , or unlawful business ; if an unlawful , as he that throws a stone into a place , where men use to pass ; or if he chase a horse , or an ox , and thereby the man be stricken by the horse , or the ox , this shall be imputed to him : and it is most reasonable : for the doing of such an unlawful act as is here meant , is a sufficient argument of a felonious purpose , or at least a hope to kill some body , or other , and he cared not whom ; which is worse than to design the death of a certain adversary , which nevertheless is murder . also on the contrary , though the business a man is doing be lawful , and it chanceth sometimes that a man be slain thereby ; yet may such killing be felony . for if a car-man drive his cart through cheapside in a throng of people , and thereby he kill a man ; though he bare him no malice , yet because he saw there was very great danger , it may reasonably be inferr'd , that he meant to adventure the killing of some body , or other , though not of him that was kill'd . la. he is a felon also that killeth himself voluntarily , and is called , not only by common lawyers , but also in divers statute-laws , felo de se. ph. and 't is well so : for names imposed by statutes are equivalent to definitions ; but i conceive not how any man can bear animum felleum , or so much malice towards himself , as to hurt himself voluntarily , much less to kill himself ; for naturally , and necessarily the intention of every man aimeth at somewhat , which is good to himself , and tendeth to his preservation : and therefore , methinks , if he kill himself , it is to be presumed that he is not compos mentis , but by some inward torment or apprehension of somewhat worse than death , distracted . la. nay , unless he be compos mentis he is not felo de se ( as sir edw. coke saith , inst. p. . ) and therefore he cannot be judged a felo de se , unless it be first proved he was compos mentis . ph. how can that be proved of a man dead ; especially if it cannot be proved by any witness , that a little before his death he spake as other men used to do . this is a hard place ; and before you take it for common-law it had need to be clear'd . la. i 'le think on 't . there 's a statute of hen. . c. . which makes it felony in any of the kings houshold-servants under the degree of a lord , to compass the death of any of the kings privy-council . the words are these ; that from henceforth the steward , treasurer , and controuler of the kings house for that time being , or one of them , have full authority and power , to inquire by sad men , and discreet persons of the chequer-roll of the king 's honourable houshold . if any servant , admitted to his servant sworn , and his name put into the chequer-roll , whatsoever he be serving in any manner , office , or room , reputed , had , or taken under the state of a lord , make any confederacies , compassings , conspiracies , or imaginations with any person to destroy , or murder the king , or any lord of this realm , or any other person sworn to the kings council , steward , treasurer , or controuler of the kings house . and if such misdoers shall be found guilty by confession , or otherwise , that the said offence shall be judged felony . ph. it appears by this statute , that not only the compassing the death ( as you say ) of a privy-councellor , but also of any lord of this realm is felony ; if it be done by any of the kings houshold servants that is not a lord. la. no ; sir edw. coke upon these words , any lord of this realm , or other person sworn of the kings council infers inst. p. . that is to be understood of such a lord only as is a privy-councellor . ph. for barring of the lords of parliament from this priviledge , he strains this statute a little farther ( in my opinion ) than it reacheth of it self . but how are such felonies to be tryed ? la. the indictment is to be found , before the steward , treasurer , and controuler of the kings house , or one of them , by of the kings houshold servants . the petit jury for the tryal must be other of the kings servants , and the judges are again the steward , treasurer , and controuler of the kings house , or of them ; and yet i see that these men are not usually great students of the law. ph. you may hereby be assur'd , that either the king and parliament were very much overseen in choosing such officers perpetually for the time being , to be judges in a tryal at the common-law , or else that sir edw. coke presumes too much , to appropriate all the judicature , both in law , and equity , to the common-lawyers ; as if neither lay-persons , men of honour , nor any of the lords spiritual , who are the most versed in the examination of equity , and cases of conscience , when they hear the statutes read , and pleaded , were unfit to judge of the intention and meaning of the same . i know , that neither such great persons , nor bishops have ordinarily so much spare time from their ordinary employment as to be so skilful as to plead causes at the bar ; but certainly they are , especially the bishops , the best able to judge of matters of reason ; that is to say ( by sir edw. coke's confession ) of matters ( except of blood ) at the common-law . la. another sort of felony , though without man-slaughter , is robbery ; and by sir edw. coke , inst. p. . defined thus , robbery by the common-law is a felony committed by a violent assault upon the person of another , by putting him in fear , and taking away from him his money , or other goods of any value whatsoever . ph. robbery is not distinguished from theft by any statute . latrocinium comprehendeth them both , and both are felony , and both punished with death . and therefore to distinguish them aright is the work of reason only . and the first difference which is obvious to all men , is , that robbery is committed by force , or terror , of which neither is in theft ; for theft is a secret act , and that which is taken by violence , or terror , either from his person , or in his presence is still robbery ; but if it be taken secretly , whether it be by day , or night from his person , or from his fold , or from his pasture , then it is called theft . 't is force and fraud only that distinguisheth between theft , and robbery , both which are by the pravity only of the intention , felony , in their nature . but there be so many evasions of the law found out by evil men , that i know not in this predicament of felony how to place them : for suppose i go secretly by day , or night , into another mans field of wheat ripe , and standing , and loading my cart with it i carry it away ; is it theft , or robbery ? la. neither ; it is but trespass : but if you first lay down the wheat you have cut , and then throw it into your cart , and carry it away , then it is felony . ph. why so ? la. sir edw. coke tells you the reason of it , inst. p. . for he defineth theft to be by the common-law a felonious , and fraudulent taking and carrying away by any man , or woman , of the meer personal goods of another , not from the person , nor by night in the house of the owner . from this definition he argues thus , p. . any kind of corn , or grain growing upon the ground is a personal chattel , and the executors of the owner shall have them , though they be not severed ; but yet no larceny can be committed of them , because they are annexed to the realty : so it is of grass standing on the ground , or of apples , or of any fruit upon the trees , &c. so it is of a box , or chest of charters , no larceny can be committed of them , because the charters concern the realty , and the box , or chest , though it be of great value , yet shall it be of the same nature the charters are of . omne magis dignum trahit ad se minus . ph. is this definition drawn out of any statute , or is it in bracton , or littleton , or any other writer upon the science of the laws ? la. no ; it is his own ; and you may observe by the logick-sentences dispersed through his works , that he was a logician sufficient enough to make a definition . ph. but if his definitions must be the rule of law ; what is there that he may not make felony , or not felony , at his pleasure ? but seeing it is not statute-law that he says , it must be very perfect reason , or else no law at all ; and to me it seems so far from reason as i think it ridiculous . but let us examine it . there can ( says he ) be no larceny of corn , grass , or fruits that are growing , that is to say , they cannot be stolen ; but why ? because they concern the realty ; that is , because they concern the land. 't is true that the land cannot be stolen , nor the right of a mans tenure ; but corn , and trees , and fruit , though growing , may be cut down , and carryed away secretly , and feloniously , in contempt , and despight of the law. and are they not then stolen ? and is there any act which is feloniously committed , that is not more than trespass ? can any man doubt of it that understands the english tongue ? 't is true , that if a man pretend a right to the land , and on that pretence take the fruits thereof by way of taking possession of his own , it is no more than a trespass , unless he conceal the taking of them ; for in that one case , he but puts the man that was in possession before to exhibit his complaint , which purpose is not felonious , but lawful ; for nothing makes a distinction between felony , and not felony , but the purpose . i have heard that if a man slander another with stealing of a tree standing , there lies no action for it , and that upon this ground , to steal a standing tree is impossible ; and that the cause of the impossibility is , that a man's free-hold cannot be stolen ; which is a very obvious fallacy ; for free-hold signifieth , not only the tenement , but also the tenure ; and though it be true that a tenure cannot be stolen , yet every man sees the standing trees , and corn , may easily be stolen ; and so far forth as trees , &c. are part of the freehold , so far forth also they are personal goods ; for whatsoever is freehold is inheritance , and descendeth to the heir , and nothing can descend to the executors , but what is meerly personal . and though a box , or case of evidences are to descend to the heir , yet unless you can shew me positive law to the contrary , they shall be taken into the executors hands , to be delivered to the heir . besides , how unconscionable a thing is it , that he that steals a shillings worth of wood ; which the wind hath blown down , or which lyeth rotten on the ground , should be hang'd for it , and he that takes a tree worth or shillings , should answer only for the dammage ? la. 't is somewhat hard , but it has been so practised time out of mind . then follows sodomy , and rape , both of them felonies . ph. i know that , and that of the former he justly says it is detestable , being in a manner an apostacie from humane nature : but in neither of them is there any thing of animus felleus . the statutes which make them felony are exposed to all mens reading ; but because sir edw. coke's commentaries upon them are more diligent and accurate than to be free from all uncleanness , let us leap over them both , observing only by the way , that he leaves an evasion for an impotent offender , though his design be the same , and pursued to the utmost of his power . la. two other great felonies are breaking , and burning of houses , neither of which are defin'd by any statute . the former of them is by sir edw. coke . inst. p. . defined thus : burglary is by the common-law , the breaking and entring into the mansion-house of another , in the night with intent to kill some reasonable creature , or to commit some other felony within the same , whether his intent be executed , or not ; and defineth night to be then , when one man cannot know anothers face by day-light : and for the parts of a mansion-house he reckoneth all houses that belong to housekeeping , as barns , stables , dary-houses , buttery , kitchin , chambers , &c. but breaking of a house by day , though felony , and punished as burglary , is not within the statute . ph. i have nothing to say against his interpretations here , but i like not that any private man should presume to determine , whether such , or such a fact done be within the words of a statute , or not , where it belongs only to a jury of men to declare in their verdict , whether the fact laid open before them be burglary , robbery , theft , or other felony ; for this is to give a leading judgment to the jury , who ought not to consider any private lawyers institutes , but the statutes themselves pleaded before them for directions . la. burning , as he defines it , p. . is a felony at the common-law committed by any that maliciously and voluntarily in the night , or day , burneth the house of another : and hereupon infers , if a man sets fire to the house , and it takes not , that then it is not within the statute . ph. if a man should secretly , and maliciously lay a quantity of gun-powder under another mans house , sufficient to blow it up , and set a train of powder in it , and set fire to the train , and some accident hinder the effect , is not this burning ? or what is it ? what crime ? it is neither treason , nor murder , nor burglary , nor robbery , nor theft , nor ( no dammage being made ) any trespass , nor contrary to any statute . and yet ( seeing the common-law is the law of reason ) it is a sin , and such a sin as a man may be accused of , and convicted , and consequently a crime committed of malice prepensed ; shall he not then be punished for the attempt ? i grant you that a judge has no warrant from any statute-law , common-law , or commission to appoint the punishment , but surely the king has power to punish him ( on this side of life or member ) as he please ; and with the assent of parliament ( if not without ) to make the crime for the future capital . la. i know not . besides these crimes there is conjuration , witch-craft , sorcery and inchantment , which are capital by the statute , of king james , cap. . ph. but i desire not to discourse of that subject ; for though without doubt there is some great wickedness signified by those crimes ; yet i have ever found my self too dull to conceive the nature of them , or how the devil hath power to do many things which witches have been accused of . let us now come to crimes not capital . la. shall we pass over the crime of heresie , which sir edw. coke ranketh before murder , but the consideration of it will be somewhat long . ph. let us defer it till the afternoon . of heresie . la. concerning heresie , sir edw. coke , inst. p. . says , that things fall into consideration . . who be the judges of heresie . . what shall be judged heresie . . what is the judgment upon a man convicted of heresie . . what the law alloweth him to save his life . . what he shall forfeit by judgment against him . ph. the principal thing to be considered , which is the heresie it self , he leaveth out ; viz. what it is , in what fact , or words it consisteth , what law it violateth , statute-law , or the law of reason . the cause why he omitteth it , may perhaps be this ; that it was not only out of his profession , but also out of his other learning . murder , robbery , theft , &c. every man knoweth to be evil , and are crimes defined by the statute-law , so that any man may avoid them , if he will. but who can be sure to avoid heresie , if he but dare to give an account of his faith , unless he know beforehand what it is ? la. in the preamble of the statute of the d , hen. . cap. . heresie is laid down , as a preaching or writing of such doctrine , as is contrary to the determination of holy church . ph. then it is heresie at this day to preach , or write against worshipping of saints , or the infallibility of the church of rome , or any other determination of the same church : for holy-church , at that time , was understood to be the church of rome , and now with us the holy-church i understand to be the church of england ; and the opinions in that statute are now , and were then the true christian faith. also the same statute of hen. . declareth , by the same preamble , that the church of england had never been troubled with heresie . la. but that statute is repeal'd . ph. then also is that declaration , or definition of heresie repeal'd . la. what , say you , is heresie ? ph. i say heresie is a singularity of doctrine , or opinion contrary to the doctrine of another man , or men , and the word properly signifies the doctrine of a sect , which doctrine is taken upon trust of some man of reputation for wisdom , that was the first author of the same . if you will understand the truth hereof , you are to read the histories and other writings of the antient greeks , whose word it is , which writings are extant in these days , and easie to be had . wherein you will find , that in , and a little before the time of alexander the great ; there lived in greece many excellent wits , that employed their time in search of the truth in all manner of sciences worthy of their labour , and which to their great honour and applause published their writings ; some concerning justice , laws , and government , some concerning good , and evil manners , some concerning the causes of things natural , and of events discernable by sense ; and some of all these subjects . and of the authors of these , the principal were pythagoras , plato , zeno , epicurus and aristotle , men of deep and laborious meditation , and such as did not get their bread by their philosophy , but were able to live of their own , and were in honour with princes , and other great personages . but these men , though above the rest in wisdom , yet their doctrine in many points did disagree ; whereby it came to pass , that such men as studied their writings , inclined , some to pythagoras , some to plato , some to aristotle , some to zeno , and some to epicurus . but philosophy it self was then so much in fashion , as that every rich man endeavour'd to have his children educated in the doctrine of some , or other of these philosophers , which were for their wisdom so much renown'd . now those that followed pythagoras , were called pythagoreans ; those that followed plato , academicks ; those that followed zeno , stoicks ; those that followed epicurus , epicureans , and those that followed aristotle , peripateticks , which are the names of heresie in greek , which signifies no more but taking of an opinion ; and the said pythagoreans , academicks , stoicks , peripateticks , &c. were termed by the names of so many several heresies . all men ( you know ) are subject to error , and the ways of error very different ; and therefore 't is no wonder if these wise , and diligent searchers of the truth did , notwithstanding their excellent parts , differ in many points amongst themselves . but this laudable custom of great , wealthy persons to have their children at any price to learn philosophy , suggested to many idle and needy fellows , an easie and compendious way of maintenance ; which was to teach the philosophy , some of plato , some of aristotle , &c. whose books to that end they read over , but without capacity , or much endeavour to examine the reasons of their doctrines , taking only the conclusions , as they lay ; and setting up with this , they soon professed themselves philosophers , and got to be the school-masters to the youth of greece ; but by competition for such employment , they hated and reviled one another with all the bitter terms they could invent ; and very often , when upon occasion they were in civil company , fell first to disputation , and then to blows , to the great trouble of the company , and their own shame . yet amongst all their reproachful words the name of heretick came never in , because they were all equally hereticks , their doctrine not being theirs , but taken upon trust from the aforesaid authors . so that though we find heresie often mentioned in lucian , and other heathen authors , yet we shall not find in any of them haereticus for a heretick . and this disorder among the philosophers continued a long time in greece , and infecting also the romans , was at the greatest in the times of the apostles , and in the primitive church , till the time of the nicene council , and somewhat after . but at last the authority of the stoicks and epicureans was not much esteemed , only plato's and aristotle's philosophy were much in credit ; plato's with the better sort , that founded their doctrine upon the conceptions and ideas of things , and aristotle's with those that reasoned only from the names of things , according to the scale of the categories : nevertheless there were always , though not new sects of philosophy , yet new opinions continually arising . la. but how came the word heretick to be a reproach ? ph. stay a little . after the death of our saviour his apostles , and his disciples , as you know , dispersed themselves into several parts of the world to preach the gospel , and converted much people , especially in asia the less , in greece and italy , where they constituted many churches ; and as they travelled from place to place , left bishops to teach and direct those their converts , and to appoint presbyters under them to assist them therein , and to confirm them by setting forth the life , and miracles of our saviour , as they had receiv'd it from the writings of the apostles and evangelists ; whereby ( and not by the authority of plato , or aristotle , or any other philosopher ) they were to be instructed . now you cannot doubt but that among so many heathens converted in the time of the apostles , there were men of all professions , and dispositions , and some that had never thought of philosophy at all , but were intent upon their fortunes , or their pleasures ; and some that had a greater , some a lesser use of reason ; and some that had studied philosophy , but professed it not , which were commonly the men of the better rank ; and some had professed it only for their better abstinence , and had it not farther , than readily to talk and wrangle ; and some were christians in good earnest , and others but counterfeit , intending to make use of the charity of those that were sincere christians , which in those times was very great . tell me now of these sorts of christians which was the most likely to afford the fittest men to propagate the faith by preaching , and writing , or publick or private disputation ; that is to say , who were fittest to be made presbyters and bishops ? la. certainly those who ( caeteris paribus ) could make the best use of aristotle's rhetorick , and logick . ph. and who were the most prone to innovation ? la. they that were most confident of aristotle's , and plato's ( their former masters ) natural philosophy : for they would be the aptest to wrest the writings of the apostles , and all scriptures to the doctrine in which their reputation was engag'd . ph. and from such bishops and priests , and other sectaries it was , that heresie , amongst the christians , first came to be a reproach : for no sooner had one of them preached , or published any doctrine that displeased , either the most , or the most leading men of the rest , but it became such a quarrel as not to be decided , but by a council of the bishops in the province where they lived ; wherein he that would not submit to the general decree , was called an heretick , as one that would not reliquish the philosophy of his sect ; the rest of the council gave themselves the name of catholicks , and to their church , the name of catholick church . and thus came up the opposite terms of catholick and heretick . la. i understand how it came to be a reproach , but not how it follows that every opinion condemned by a church that is , or calls it self catholick , must needs be an error , or a sin. the church of england denies that consequence , and that doctrine as they hold cannot be proved to be erroneous , but by the scripture , which cannot err ; but the church , being but men , may both err , and sin. ph. in this case we must consider also that error , in it's own nature , is no sin : for it is impossible for a man to err on purpose , he cannot have an intention to err ; and nothing is sin , unless there be a sinful intention ; much less are such errors sins , as neither hurt the common-wealth , nor any private man , nor are against any law positive , or natural ; such errors as were those for which men were burnt in the time when the pope had the government of this church . la. since you have told me how herefie came to be a name , tell me also how it came to be a crime ? and what were the heresies that first were made crimes ? ph. since the christian church could declare , and none else , what doctrine were heresies , but had no power to make statutes for the punishment of hereticks before they had a christian king ; it is manifest that heresie could not be made a crime before the first christian emperor , which was constantine the great . in his time one arius a priest of alexandria in dispute with his bishop , publickly denyed the divinity of christ , and maintained it afterwards in the pulpit , which was the cause of a sedition , and much blood shed , both of citizens , and souldiers in that city . for the preventing of the like for the time to come , the emperor called a general council of bishops to the city of nice , who being met , he exhorted them to agree upon a confession of the christian faith , promising whatsoever they agreed on he would cause to be observed . la. by the way , the emperor ( i think ) was here a little too indifferent . ph. in this council was established so much of the creed we now use , and call the nicene creed , as reacheth to the words , i believe in the holy ghost . the rest was established by the general councils next succeeding . by the words of which creed almost all the heresies then in being , and especially the doctrine of arius , were condemn'd : so that now all doctrines published by writing , or by word , and repugnant to this confession of the first four general councils , and contained in the nicene creed were , by the imperial law forbidding them , made crimes ; such as are that of arius denying the divinity of christ ; that of eutiches denying the natures of christ ; that of the nestorians denying the divinity of the holy ghost ; that of the anthropomorphites , that of the manichees , that of the anabaptists , and many other . la. what punishment had arius ? ph. at the first for refusing to subscribe , he was deprived and banished ; but afterwards having satisfied the emperor concerning his future obedience ( for the emperor caused his confession to be made , not for the regard of truth of doctrine , but for the preserving of the peace , especially among his christian souldiers , by whose valour he had gotten the empire , and by the same was to preserve it ) he was received again into grace , but dyed before he could repossess his benefice . but after the time of those councils , the imperial law made the punishment for heresie to be capital , though the manner of the death was left to the praefects in their several jurisdictions ; and thus it continued till somewhat after the time of the emperor frederick barbarossa , and the papacy having gotten the upper hand of the emperor , brought in the use of burning both hereticks , and apostates ; and the popes from time to time made heresie of many other points of doctrine , ( as they saw it conduce to the setting up of the chair above the throne ) besides those determined in the nicene creed , and brought in the use of burning ; and according to this papal-law there was an apostate burnt at oxford in the time of william the conqueror for turning jew . but of a heretick burnt in england there is no mention made till after the statute of hen. . whereby some followers of wiclif ( called lollards ) were afterwards burned , and that for such doctrines , as by the church of england , ever since the first year of queen el. have been approved for godly doctrines , and no doubt were godly then ; and so you see how many have been burnt for godliness . la. 't was not well done ; but 't is no wonder we read of no hereticks before the time of h. . for in the preamble to that statute it is intimated , that before those lollards there never was any heresie in england . ph. i think so too ; for we have been the tamest nation to the pope of all the world. but what statutes concerning heresie have there been made since ? la. the statute of h. . c. . which adds to the burning the forfeiture of lands , and goods , and then no more till the h. . c. . which confirms the two former and giveth some new rules concerning how they shall be proceeded with . but by the statute of ed. . cap. . all acts of parliament formerly made to punish any manner of doctrine concerning religion are repeal'd . for therein it is ordain'd , after divers acts specified ; that all and every other act , or acts of parliament concerning doctrine , or matters of religion , and all , and every branch , article , sentence and matter , pains and forfeitures contained , mentioned , or any wise declared in the same acts of parliament or statutes shall be from henceforth repealed , utterly void , and of none effect . so that in the time of king ed. . not only all punishments of heresie were taken away , but also the nature of it was changed , to what originally it was , a private opinion . again in phil. and ma. those former statutes of h. . cap. . h. . cap. . . h. . cap. . are revived , and the branch of ed. . cap. . touching doctrine ( though not specially named ) seemeth to be this , that the same statute confirmeth the statute of ed. . concerning treasons . lastly , in the first year of queen eliz. cap. . the aforesaid statutes of queen mary are taken away , and thereby the statute of ed. cap. . revived ; so as there was no statute left for the punishment of hereticks . but queen eliz. by the advice of her parliament gave a commission ( which was called the high-commission ) to certain persons ( amongst whom were very many of the bishops ) to declare what should be heresie for the future ; but with a restraint , that they should judge nothing to be heresie , but what had been so declared in the first four general councils . ph. from this which you have shewed me , i think we may proceed to the examination of the learned sir edw. coke concerning heresie . in his chapter of heresie , inst. p. . he himself confesseth , that no statute against heresie stood then in force : when in the th year of king james , bartholomew legat was burnt for arianism , and that from the authority of the act of hen. . cap. . and other acts cited in the margin , it may be gather'd , that the diocesan hath the jurisdiction of heresie . this i say is not true : for as to acts of parliament it is manifest , that from acts repealed ; that is to say , from things that have no being , there can be gathered nothing . and as to the other authorities in the margin , fitzherbert , and the doctor and student , they say no more than what was law in the time when they writ ; that is , when the popes usurped authority was here obeyed : but if they had written this in the time of king ed. . or queen elizabeth , sir edw. coke might as well have cited his own authority , as theirs ; for their opinions had no more the force of laws than his . then he cites this precedent of legat , and another of hammond in the time of queen elizabeth ; but precedents prove only what was done , and not what was well done . vvhat jurisdiction could the diocesan then have of heresie , when by the statute of ed. . cap. . then in force , there was no heresie , and all punishment for opinions forbidden : for heresie is a doctrine contrary to the determination of the church , but then the church had not determined any thing at all concerning heresie . la. but seeing the high commissioners had power to correct , and amend heresies , they must have power to cite such as were accused of heresie , to appear before them , or else they could not execute their commission . ph. if they had first made , and published a declaration of what articles they made heresie , that when one man heard another speak against their declaration , he might thereof inform the commissioners , then indeed they had had power to cite , and imprison the person accus'd ; but before they had known what should be heresie ; how was it possible that one man should accuse another ? and before he be accused , how can he be cited ? la. perhaps it was taken for granted , that whatsoever was contrary to any of the first general councils , was to be judged heresie . ph. that granted , yet i see not how one man might accuse another ' ere the better for those councils . for not one man of ten thousand had ever read them , nor were they ever published in english , that a man might avoid offending against them , nor perhaps are they extant ; nor if those that we have printed in latin are the very acts of the councils ( which is yet much disputed amongst divines ) do i think it fit they were put in the vulgar tongues . but it is not likely that the makers of the statutes had any purpose to make heresie of whatsoever was repugnant to those general councils : for if they had , i believe the anabaptists , of which there was great plenty , in those times , would one time or other have been question'd upon this article of the nicene creed , i believe one baptism for the remission of sins ; nor was the commission it self for a long time after registred , that men might in such uncertainty take heed and abstain ( for their better safety ) from speaking of religion any thing at all . but by what law was this heretick legat burnt ? i grant he was an arian , and his heresie contrary to the determination of the church of england , in the highest points of christianity ; but seeing there was no statute-law to burn him , and no penalty forbidden , by what law , by what authority was he burn't ? la. that this legat was accused of heresie , was no fault of the high commissioners , but when he was accused , it had been a fault in them not to have examin'd him , or having examin'd him , and found him an arian , not to have judged him so , or not to have certified him so . all this they did , and this was all that belonged unto them ; they medled not with his burning , but left him to the secular power to do with him what they pleased . ph. your justification of the commissioners is nothing to the question ; the question is by what law he was burn't , the spiritual-law gives no sentence of temporal punishment , and sir edw. coke confesseth that , he could not be burned , and burning forbidden by statute-law . by what law then was he burned ? la. by the common-law . ph. what 's that ? it is not custom ; for before the time of henry the th , there was no such custom in england ; for if there had , yet those laws that came after were but confirmations of the customs , and therefore the repealing of those laws was a repealing of the custom . for when king ed. the th , and queen eliz. abolished those statutes , they abolished all pains , and consequently , burning , or else they had abolished nothing . and if you will say he was burn't by the law of reason , you must tell me how there can be proportion between doctrine and burning ; there can be no equality , nor majority , nor minority assigned between them . the proportion that is between them , is the proportion of the mischief which the doctrine maketh , to the mischief to be inflicted on the doctor ; and this is to be measur'd only by him that hath the charge of governing the people , and consequently , the punishing of offences can be determined by none but by the king , and that , if it extend to life or member , with the assent of parliament . la. he does not draw any argument for it from reason , but alledgeth for it this judgment executed upon legat , and a story out of hollingshed , and stow : but i know that neither history , nor precedent will pass with you for law. and though there be a writ de haeretico comburendo in the register ( as you may read in fitzherbert ) grounded upon the statutes of h. . cap. . and h. . cap. . yet seeing those statutes are void , you will say the vvrit is also void . ph. yes indeed will i. besides this , i understand not how that is true that he saith ; that the diocesan hath jurisdiction of heresie , and that so it was put in ure in all queen elizabeths reign ; whereas by the statute it is manifest , that all jurisdiction spiritual , was given under the queen , to the high commissioners , how then could any one diocesan have any part thereof without deputation from them , which by their letters patents they could not grant , nor was it reasonable they should : for the trust was not committed to the bishops only , but also to divers lay-persons , who might have an eye upon their proceedings , lest they should incroach upon the power temporal . but at this day there is neither statute , nor any law to punish doctrine , but the ordinary power ecclesiastical , and that according to the canons of the church of england , only authorized by the king , the high commission being long since abolished . therefore let us come now to such causes criminal , as are not capital . of praemunire . la. the greatest offence not capital is that which is done against the statute of provisoes . ph. you have need to expound this . la. this crime is not unlike to that for which a man is outlawed , when he will not come in and submit himself to the law ; saving that in outlawries there is a long process to precede it ; and he that is outlawed , is put out of the protection of the law. but for the offence against the statute of provisors ( which is called praemunire facias from the words in the original vvrit ) if the offender submit not himself to the law within the space of months after notice , he is presently an outlaw : and this punishment ( if not capital ) is equivalent to capital : for he lives secretly at the mercy of those that know where he is , and cannot without the like peril to themselves , but discover him . and it has been much disputed before the time of queen elizabeth , whether he might not be lawfully killed by any man that would , as one might kill a vvolf : it is like the punishment amongst the old romans of being barred the use of fire and vvater , and like the great excommunication in the papacy , when a man might not eat , or drink with the offender without incurring the like penalty . ph. certainly the offence for which this punishment was first ordained , was some abominable crime , or of extraordinary mischief . la. so it was : for the pope , you know , from long before the conquest , incroached every day upon the power temporal . vvhatsoever could be made to seem to be in ordine ad spiritualia was in every common-wealth claimed , and haled to the jurisdiction of the pope : and for that end in every country he had his court ecclesiastical , and there was scarce any cause temporal , which he could not , by one shift or other , hook into his jurisdiction , in such sort as to have it tryed in his own courts at rome , or in france , or in england it self . by which means the kings laws were not regarded , judgments given in the kings courts were avoided , and presentations to bishopricks , abbies , and other benefices ( founded , and endowed by the kings , and nobility of england ) were bestowed by the pope upon strangers , or such ( as with money in their purses ) could travel to rome , to provide themselves of such benefices . and suitably hereunto , when there was a question about a tythe , or a vvill , though the point were meerly temporal , yet the popes court here would fetch them in , or else one of the parties would appeal to rome . against these injuries of the roman church , and to maintain the right and dignity of the crown of england , ed. . made a statute concerning provisors ( that is , such as provide themselves with benefices here from rome ) for in the th year of his reign he ordained in a full parliament that the right of election of bishops , and right of advowsans , and presentations belonged to himself , and to the nobility that were the founders of such bishopricks , abbies , and other benefices . and he enacted farther , that if any clerk , which he , or any of his subjects should present , should be disturbed by any such provisor that such provisor , or disturber should be attached by his body , and if convicted , lye in prison till he were ransomed at the kings will , and had satisfied the party griev'd , renouced his title , and sound sureties not to sue for it any farther ; and that if they could not be found , then exigents should go forth to outlawrie , and the profits of the benefice in the mean time be taken into the kings hands . and the same statute is confirmed in the th year of king ed. the d , which statute alloweth to these provisors six weeks day to appear , but if they appear before they be outlaw'd , they shall be received to make answer , but if they render not themselves , they shall forfeit all their lands , goods , and chattels , besides that they stand outlaw'd . the same law is confirmed again by rich. d . cap. . in which is added ( because these provisors obtained sometimes from the pope , that such english bishops as according to the law were instituted , and inducted by the kings presentees should be excommunicated ) that for this also both they , and the receivers and publishers of such papal process , and the procurers should have the same punishment . ph. let me see the statute it self of ed. . la. it lies there before you set down verbatim by sir edw. coke himself , both in english , and french. ph. 't is well , we are now to consider what it means , and whether it be well , or ill interpreted by sir edw. coke . and first it appeareth by the preamble ( which sir edw. coke acknowledgeth to be the best interpreter of the statute ) that this statute was made against the incroachments only of the church of rome , upon the right of the king , and other patrons to collate bishopricks and other benefices within the realm of england , and against the power of the courts spiritual , to hold plea of controversies determinable in any of the courts of the king , or to reverse any judgment there given , as being things that tend to the disherison of the king , and destruction of the common-law of the realm always used . put the case now that a man had procur'd the pope to reverse a decree in chancery , had he been within the danger of premunire ? la. yes certainly ; or if the judgment had been given in the court of the lord admiral , or in any other kings court whatsoever , either of law , or equity ; for courts of equity are most properly courts of the common-law of england , because equity , and common-law ( as sir ed. coke says ) are all one . ph. then the word common-law is not in this preamble restrained to such courts only where the tryal is by juries , but comprehends all the kings temporal courts , if not also the courts of those subjects that are lords of great mannors . la. 't is very likely , yet i think it will not by every man be granted . ph. the statute also says ; that they who draw men out of the realm in plea , whereof the cognizance pertaineth to the kings court , or of things whereof judgment is given in the kings court , are within the cases of premunire . but what if one man draw another to lambeth in plea , whereof judgment is already given at westminster . is he by this clause involv'd in a premunire ? la. yes : for though it be not out of the realm , yet it is within the meaning of the statute , because the popes court , not the kings court , was then perhaps at lambeth . ph. but in sir edw. coke's time the kings court was at lambeth , and not the popes . la. you know well enough , that the spiritual-court has no power to hold pleas of common-law . ph. i do so ; but i know not for what cause any simple man that mistakes his right court , should be out of the kings protection , lose his inheritance , and all his goods personal , and real ; and if taken , be kept in prison all his life . this statute cannot be by sir edw. cokes torture made to say it . besides , such men are ignorant in what courts they are to seek their remedy : and it is a custom confirmed by perpetual usage , that such ignorant men should be guided by their council at law. it is manifest therefore , that the makers of the statute intended not to prohibit men from their suing for their right , neither in the chancery , nor in the admiralty , nor in any other court , except the ecclesiastical courts , which had their jurisdiction from the church of rome . again , where the statute says , which do sue in any other court , or defeat a judgment in the kings court , what is the meaning of another court ? another court than what ? is it here meant the kings-bench , or court of common-pleas ? does a premunire lye for every man that sues in chancery , for that which might be remedied in the court of common-pleas ? or can a premunire lye by this statute against the lord chancellor ? the statute lays it only on the party that sueth , not upon the judge which holdeth the plea. nor could it be laid neither by this statute , nor by the statute of rich. . upon the judges , which were then punishable only by the popes authority . seeing then the party suing has a just excuse upon the council of his lawyer ; and the temporal judge , and the lawyer both are out of the statute , the punishment of the premunire can light upon no body . la. but sir edw. coke in this same chapter bringeth two precedents to prove , that though the spiritual-courts in england be now the kings courts , yet whosoever sueth in them for any thing tryable by the common-law , shall fall into a premunire . one is , that whereas in the d of hen. . all the clergy of england in a convocation by publick instrument acknowledged the king to be supream head of the church of england ; yet after this , viz. of h. . this statute was in force . ph. why not ? a convocation of the clergy could not alter the right of supremacie ; their courts were still the popes courts . the other precedent in the th of hen. . of the bishop of norwich may have the same answer , for the king was not declared head of the church by act of parliament , till the th year of his reign . if he had not mistrusted his own law , he would not have laid hold on so weak a proof as these precedents . and as to the sentence of premunire upon the bishop of norwich , neither doth this statute , nor that other of r. . warrant it ; he was sentenced for threatning to excommunicate a man which had sued another before the mayor : but this statute forbids not that , but forbids the bringing in , or publishing of excommunications , or other process from rome , or any other place . before the hen. . there is no question , but that for a suit in the spiritual court here in a temporal cause , there lay a premunire ; and if perhaps some judge . or other hath since that time judged otherwise , his judgment was erroneous . la. nay but by the statute of . rich. . cap. . it appeareth to the contrary , as sir edw. coke here will shew you . the effect ( saith he ) of the statute of rich. . is ; that if any pursue , or cause to be pursued in the court of rome , or elsewhere any thing which toucheth the king , against him , his crown , or regality , or his realm , they , their notaries , &c. shall be out of the kings protection . ph. i pray you let me know the very words of the statutes as they ly . la. presently . the words are , if any man purchase , or pursue , or cause to be purchased , or pursued in the court of rome , or elsewhere , any such translations , processes and sentences of excommunication , bulls , instruments , or any other things whatsoever , which touch the king , against him , his crown , and his regality , or his realm , as is aforesaid , &c. ph. if a man bring a plea of common-law into the spiritual court , which is now the kings court , and the judge of this spiritual court hold plea thereof : by what construction can you draw it within the compass of the words you have now read . to sue for my right in the kings court , is no pursuing of translations of bishopricks made , or procur'd in the court of rome , or any place else , but only in the court of the king , nor is this the suit against the king , nor his crown , nor his regality , nor his realm , but the contrary . why then is it a premunire ? no. he that brings in , or setteth out a writing in any place whatsoever , wherein is contained , that the king hath so given away his jurisdiction , as that if a subject be condemned falsly , his submission to the kings judgment is of none effect ; or that the king upon no necessity whatsoever can , out of parliament time raise money for the defence of the kingdom , is , in my opinion , much more within the statute of provisors , than they which begin suit for a temporal matter in a court spiritual . but what argument has he for this law of his ( since the statute law fails him ) from the law of reason . la. he says they are called courts , either because they proceed by the rules of other laws , as by the canon , or civil law , or by other tryals than the common law doth warrant : for the tryals warranted by the law of england for matter of fact , is by verdict of men before the judges of the common law , in matters pertaining to the common law , and not upon examination of witnesses , as in the court of equity ; so that alia curia is either that which is govern'd per aliam legem , or which draweth the party ad aliud examen . for if — ph. stop there . let us consider of this you have read , for the tryal warranted by the law of england , is by verdict of men. what means he here by the law of england ? does it not warrant the tryals in chancery , and in the court of admiralty by witnesses ? la. by the law of england he means the law used in the kings bench ; that is to say , the common-law . ph. this is just as if he had said , that these two courts did warrant their own way of tryal ; but other courts not so , but were warranted by the king only , the courts of common law were vvarrants to themselves : you see that alia curia is this way ill expounded . in the courts of common law all tryals are by men , who are judges of the fact ; and the fact known and prov'd , the judges are to pronounce the law ; but in the spiritual court , the admiralty , and in all the courts of equity there is but one judge , both of fact , and of law ; this is all the difference . if this difference be intended by the statute by alia curia , there would be a premunire for suing in a court , being not the kings court : the kings bench , and court of common pleas may also be different kinds of courts , because the process is different ; but 't is plain that this statute doth not distinguish courts otherwise than into the courts of the king , and into the courts of the forraign states , and princes . and seeing you stand upon the name of a jury for the distinguishing of courts , what difference do you find between the tryals at the common-law , and the tryals in other courts ? you know that in tryals of fact naturally , and through all the world the witnesses are judges , and it is impossible to be otherwise . what then in england can a jury judge of , except it be of the sufficiency of the testimony . the justices have nothing to judge of , nor do , but after the fact is proved , to declare the law , which is not judgment , but jurisdiction . again , though the tryal be in chancery , or in the court of civil law , . the witnesses are still judges of the fact , and he that hath the commission to hear the cause hath both the parts ; that is to say , of a jury to judge of the testimony , and of a justice to declare the law. in this , i say , lyes all the difference , which is indeed enough to make a dispute ( as the world goes ) about jurisdiction : but seeing it tends neither to the disherison of the king , nor of the people , nor to the subversion of the law of reason , i. e. of common-law , nor to the subversion of justice , nor to any harm of the realm , without some of which these statutes are not broken , it cannot be a premunire . la. let me read on . for if the freehold inheritances , goods and chattels , debts and duties , wherein the king and subject have right and property by the common-law , should be judged per aliam legem , or be drawn ad aliud examen , the mischiefs afore exprest , would follow ; viz. the destruction of the king , and his crown , the disherison of his people , and the undoing and destruction of the common-law always used . ph. that is to say , of the law of reason . from hence it follows , that where there are no juries , and where there are different laws from ours ; that is to say , in all the world besides , neither king , nor people have any inheritance , nor goods , nor any law of reason . i will examine his doctrine concerning cases criminal no farther . he no where defineth a crime , that we may know what it is : an odious name sufficeth him to make a crime of any thing . he hath put heresie among the most odious crimes , not knowing what it signifies ; and upon no other cause , but because the church of rome ( to make their usurped power the more terrible ) had made it by long preaching against it , and cruelty shown towards many godly , and learned men of this , and other reformed churches , appear to common people a thing detestable . he puts it in as a plea of the crown in the time of queen elizabeth , whereas in her time there was no doctrine heresie ; but justice stamford leaves it out , because when heresie was a crime , it was a plea of the mitre . i see also in this catalogue of causes criminal , he inserteth costly feeding , costly apparel , and costly building , though they were contrary to no statute . 't is true , that by evil circumstances they become sins ; but these sins belong to the judgment of the pastors spiritual . a justice of the temporal law ( seeing the intention only makes them sins ) cannot judge whether they be sins or no , unless he have power to take confessions . also he makes flattery of the king to be a crime . how could he know when one man had flattered another ? he meant therefore that it was a crime to please the king : and accordingly he citeth divers calamities of such as had been in times past in great favour of the kings they serv'd ; as the favourites of hen. . ed. . rich. . hen. . which favourites were some imprisoned , some banished , and some put to death by the same rebels that imprisoned , banished , and put to death the same king , upon no better ground than the earl of strafford , the arch-bishop of canterbury , and king charles the first by the rebels of that time . empson , and dudley were no favourites of hen. the th , but spunges , which king hen. the th did well squeeze . cardinal woolsey was indeed for divers years a favourite of hen. the th , but fell into disgrace , not for flattering the king , but for not flattering him in the business of divorce from queen katharine . you see his reasoning here , see also his passion in the words following . we will for some causes descend no lower , qui eorum vestigiis insistunt , eorum exitus perhorrescant , this is put in for the favourite ( that then was ) of king james . but let us give over this , and speak of the legal punishments to these crimes belonging . of punishments . and in the first place i desire to know who it is that hath the power , for an offence committed to define , and appoint the special manner of punishment ; for suppose you are not of the opinion of the stoicks in old time , that all faults are equal , and that there ought to be the same punishment for killing a man , and for killing a hen. la. the manner of punishment in all crimes whatsoever is to be determined by the common-law . that is to say , if it be a statute that determins it , then the judgment must be according to the statute ; if it be not specified by the statute , then the custome in such cases is to be followed : but if the case be new , i know not why the judge may not determine it according to reason . ph. but according to whose reason ? if you mean the natural reason of this , or that judge authorized by the king to have cognisance of the cause , there being as many several reasons , as there are several men , the punishment of all crimes will be uncertain , and none of them ever grow up to make a custome . therefore a punishment certain can never be assigned , if it have its beginning from the natural reasons of deputed judges , no , nor from the natural of the supream judge : for if the law of reason did determine punishments , then for the same offences there should be through all the world , and in all times the same punishments ; because the law of reason is immutable and eternal . la. if the natural reason neither of the king , nor of any else be able to prescribe a punishment , how can there be any lawful punishment at all ? ph. why not ? for i think that in this very difference between the rational faculties of particular men , lyeth the true and perfect reason that maketh every punishment certain . for , but give the authority of defining punishments to any man whatsoever , and let that man define them , and right reason has defin'd them . suppose the definition be both made , and made known before the offence committed : for such authority is to trump in card-playing , save that in matter of government , when nothing else is turn'd up , clubs are trump . therefore seeing every man knoweth by his own reason what actions are against the law of reason , and knoweth what punishments are by this authority for every evil action ordained ; it is manifest reason , that for breaking the known laws , he should suffer the known punishments . now the person to whom this authority of defining punishments is given , can be no other in any place of the world , but the same person that hath the soveraign power , be it one man , or one assembly of men : for it were in vain to give it to any person that had not the power of the militia to cause it to be executed ; for no less power can do it , when many offenders be united and combin'd to defend one another . there was a case put to king david by nathan , of a rich man that had many sheep , and of a poor man that had but one , which was a tame lamb : the rich man had a stranger in his house , for whose entertainment ( to spare his own sheep ) he took away the poor mans lamb. upon this case the king gave judgment , surely the man that hath done this shall die . what think you of this ? was it a royal , or tyrannical judgment ? la. i will not contradict the canons of the church of england , which acknowledgeth the king of england , within his own dominions hath the same rights , which the good kings of israel had in theirs , nor deny king david to have been one of those good kings : but to punish with death without a precedent law , will seem but a harsh proceeding with us , who unwillingly hear of arbitrary laws , much less of arbitrary punishments , unless we were sure that all our kings would be as good as david . i will only ask you by what authority the clergy may take upon them to determine , or make a canon concerning the power of their own king , or to distinguish between the right of a good , and an evil king. ph. it is not the clergy that maketh their canons to be law , but it is the king that doth it by the great seal of england ; and it is the king that giveth them power to teach their doctrines , in that , that he authoriseth them publickly to teach and preach the doctrine of christ and his apostles , according to the scriptures , wherein this doctrine is perspicuously contained . but if they had derogated from the royal power in any of their doctrines published , then certainly they had been too blame ; nay , i believe that had been more within the statute of premunire of rich. . c. . than any judge of a court of equity for holding pleas of common law. i cite not this precedent of king david , as approving the breach of the great charter , or justifying the punishment with loss of life , or member of every man that shall offend the king ; but to shew you that before the charter was granted , in all cases where the punishments were not prescribed , it was the king only that could prescribe them ; and that no deputed judge could punish an offender , but by force of some statute , or by the words of some commission , and not ex officio . they might for a contempt of their courts , because it is a contempt of the king , imprison a man , during the kings pleasure , or fine him to the king , according to the greatness of the offence : but all this amounteth to no more , than to leave him to the kings judgment . as for cutting off of ears , and for the pillory , and the like corporal punishments usually inflicted heretofore in the star-chamber , they were warranted by the statute of hen. . that giveth them power to punish sometimes by discretion . and generally it is a rule of reason , that every judge of crimes , in case the positive law appoint no punishment , and he have no other command from the king ; then to consult the king before he pronounce sentence of any irreparable dammage on the offender : for otherwise he doth not pronounce the law , which is his office to do , but makes the law , which is the office of the king. and from this you may collect , that the custome of punishing such and such a crime , in such and such a manner , hath not the force of law in it self , but from an assured presumption , that the original of the custome was the judgment of some former king. and for this cause the judges ought not to run up for the customs by which they are warranted to the time of the saxon kings , nor to the time of the conquest : for the most immediate , antecedent precedents are the fairest warrants of their judgments , as the most recent laws have commonly the greatest vigor , as being fresh in the memory of all men , and tacitly confirmed ( because not disapprov'd ) by the soveraign legislator . what can be said against this ? la. sir edw. coke inst. p. . in the chapter of judgments and executions saith , that of judgments some are by the common-law , some by statute-law , and some by custome ; wherein he distinguisheth common-law , both from statute-law and from custome . ph. but you know , that in other places he makes the common-law , and the law of reason to be all one , as indeed they are , when by it is meant the kings reason ; and then his meaning in this distinction must be , that there be judgments by reason without statute-law , and judgments neither by statute-law , nor by reason , but by custome without reason ; for if a custome be reasonable , then , both he , and other learned lawyers say , it is common-law ; and if unreasonable , no law at all . la. i believe sir edw. coke's meaning was no other than yours in this point , but that he inserted the word custom , because there be not many that can distinguish between customs reasonable and unreasonable . ph. but custom , so far forth as it hath the force of a law , hath more of the nature of a statute , than of the law of reason , especially where the question is not of lands , and goods , but of punishments , which are to be defined only by authority . now to come to particulars : what punishment is due by law for high treason ? la. to be drawn upon a hurdle from the prison to the gallows , and there to be hanged by the neck , and laid upon the ground alive , and have his bowels taken out , and burnt , whilst he is yet living ; to have his head cut off , his body to be divided into four parts , and his head , and quarters to be placed as the king shall assign . ph. seeing a judge ought to give judgment according to the law , and that this judgment is not appointed by any statute , how does sir edw. coke warrant it by reason , or how by custom ? la. only thus , reason it is , that his body , lands , goods , posterity , &c. should be torn , pulled asunder , and destroy'd , that intended to destroy the majesty of government . ph. see how he avoids the saying the majesty of the king. but does not this reason make as much for punishing a traytor as metius suffetius , in old time , was executed by tullus hostilius king of rome , or as ravillac , not many years ago in france , who were torn in pieces by four horses , as it does for drawing , hanging , and quartering ? la. i think it does . but he confirms it also in the same chapter , by holy scripture . thus joab for treason , kings . . was drawn from the horns of the altar ; that 's proof for drawing upon a hurdle . esth. . . bithan for treason was hang'd ; there 's for hanging . acts. . . judas hanged himself , and his bowels were poured out ; there 's for hanging , and embowelling alive . sam. . . joab pierced absalom's heart ; that 's proof for pulling out a traytors heart . sam. . . sheba the son of bichri had his head cut off ; which is proof that a traytors head ought to be cut off . sam. . . they slew baanah and rechab , and hung up their heads over the pool of hebron ; this is for setting up of quarters . and lastly for forfeiture of lands , and goods , psal. . v. . . &c. let their children be driven out , and beg , and other men make spoil of their labours , and let their memory be blotted out of the land. ph. learnedly said ; and no record is to be kept of the judgment . also the punishments divided between those traytors must be joyn'd in one judgment for a traytor here . la. he meant none of this , but intended ( his hand being in ) to shew his reading , or his chaplains in the bible . ph. seeing then for the specifying of the punishment in case of treason , he brings no argument from natural reason ; that is to say , from the common law ; and that it is manifest that it is not the general custom of the land , the same being rarely , or never executed upon any peer of the realm , and that the king may remit the whole penalty , if he will ; it follows , that the specifying of the punishment depends meerly upon the authority of the king. but this is certain , that no judge ought to give other judgment , than has been usually given , and approv'd either by a statute , or by consent express or implyed , of the soveraign power ; for otherwise it is not the judgment of the law , but of a man subject to the law. la. in petit treason the judgment is , to be drawn to the place of execution , and hang'd by the neck , or if it be a woman , to be drawn and burnt . ph. can you imagine that this so nice a distinction can have any other foundation than the wit of a private man ? la. sir edw. coke upon this place says , that she ought not to be beheaded , or hanged . ph. no , not by the judge , who ought to give no other judgment than the statute , or the king appoints , nor the sheriff to make other execution than the judge pronounceth ; unless he have a special warrant from the king. and this i should have thought he had meant , had he not said before , that the king had given away all his right of judicature to his courts of justice . la. the judgment for felony is — ph. heresie is before felony in the catalogue of the pleas of the crown . la. he has omitted the judgment against a heretick , because ( i think ) no jury confin'd heresie , nor no judge temporal did ever pronounce judgment upon it : for the statute of h. . c. . was , that the bishop having convicted any man of heresie , should deliver him to the sheriff , and that the sheriff should believe the bishop . the sheriff therefore was bound by the statute of h. . after he was delivered to him , to burn him ; but that statute being repeal'd , the sheriff could not burn him , without a writ de heretico comburendo , and therefore the sheriff burnt legat . king james by that writ , which was granted by the judges of the common-law at that time , and in that writ the judgment is expressed . ph. this is strange reasoning ; when sir edw. coke knew , and confessed , that the statutes upon which the writ de heretico comburendo was grounded , were all repeal'd , how could he think the writ it self could be in force ? or that the statute which repealeth the statutes for burning hereticks was not made with an intent to forbid such burning ? it is manifest he understood not his books of common-law : for in the time of hen. . and hen. . the word of the bishop was the sheriff's warrant , and there was need of no such writ ; nor could he till the hen. . when those statutes were repeal'd , and a writ made for that purpose , and put into the register , which writ fitzherbert cites in the end of his natura brevium . again , in the later end of the reign of queen elizabeth was published a correct register of original and judicial writs , and the writ de haeretico comburendo left out , because that statute of h. . and all statutes against hereticks were repeal'd , and burning forbidden . and whereas he citeth for the granting of this writ , . jac. the lord chief justice , the lord chief baron , and two justices of the common-pleas , it is , as to all , but the lord chief against the law ; for neither the judges of common-pleas , nor of the exchequer can hold pleas of the crown ( without special commission ) and if they cannot hold plea , they cannot condemn . la. the punishment for felony is , that the felon be hang'd by the neck till he be dead . and to prove that it ought to be so , he cites a sentence ( from whence i know not ) quod non licet felonem pro felonia decollare . ph. it is not indeed lawful for the sheriff of his own head to do it , or to do otherwise than is commanded in the judgment , nor for the judge to give any other judgment , than according to statute-law , or the usage consented to by the king , but this hinders not the king from altering his law concerning judgments , if he see good cause . la. the king may do so , if he please : and sir edw. coke tells you how he altered particular judgments in case of felony , and sheweth , that judgment being given upon a lord in parliament , that he should be hang'd , he was nevertheless beheaded ; and that another lord had the like judgment for another felony , and was not hang'd , but beheaded ; and withal he shews you the inconveniency of such proceeding , because ( saith he ) if hanging might be altered to beheading , by the same reason it might be altered to burning , stoning to death , &c. ph. perhaps there might be inconveniency in it ; but 't is more than i see , or he shews , nor did there happen any inconveniency from the execution he citeth : besides he granteth , that death being ultimum supplicium is a satisfaction to the law. but what is all this to the purpose , when it belongeth not to consider such inconveniencies of government but to the king and parliament ? or who from the authority of a deputed judge can derive a power to censure the actions of a king that hath deputed him ? la. for the death of a man by misfortune , there is ( he saith ) no express judgment , nor for killing a man in ones own defence ; but he saith , that the law hath in both cases given judgment , that he that so killeth a man shall forfeit all his goods and chattels , debts and duties . ph. if we consider what sir edw. coke saith , inst. sect. . at the word felony , these judgments are very favourable : for there he saith , that killing of a man by chance-medley , or se defendendo is felony . his words are ; wherefore by the law at this day , under the word felony in commissions , &c. is included petit treason , murder , homicide , burning of houses , burglary , robbery , rape , &c. chance-medley , and se defendendo . but if we consider only the intent of him that killeth a man by misfortune , or in his own defence , the same judgments will be thought both cruel , and sinful judgments . and how they can be felony at this day cannot be understood , unless there be a statute to make them so . for the statute of h. . cap. . the words whereof , murder from henceforth shall not be judged before our justices , where it is found misfortune only ; but it shall take place in such as are slain by felony , and not otherwise , make it manifest , if they be felonies , they must also be murders , unless they have been made felonies by some latter statute . la. there is no such latter statute , nor is it to say in commission ; nor can a commission , or any thing but another statute make a thing felony , that was not so before . ph. see what it is for a man to distinguish felony into several sorts , before he understands the general name of felony what it meaneth ; but that a man , for killing another man by misfortune only , without any evil purpose , should forfeit all his goods and chartels , debts and duties , is a very hard judgment , unless perhaps they were to be given to the kindred of the man slain , by way of amends for dammage . but the law is not that . is it the common-law ( which is the law of reason ) that justifies this judgment , or the statute-law ? it cannot be the law of reason , if the case be meer misfortune . if a man be upon his apple-tree , to gather his apples , and by ill fortune fall down , and lighting on the head of another man kill him , and by good fortune saves himself ; shall he for this mischance be punished with the forfeiture of his goods to the king ? does the law of reason warrant this ? he should ( you 'l say ) have look'd to his feet ; that 's true , but so should he that was under have look'd up to the tree . therefore in this case the law of reason ( as i think ) dictates , that they ought each of them to bear his own misfortune . la. in this case i agree with you . ph. but this case is the true case of meer misfortune , and a sufficient reprehension of the opinion of sir edw. coke . la. but what if this had hapned to be done by one that had been stealing apples upon the tree of another man ? then ( as sir edw. coke says , inst. p , . ) it had been murder . ph. there is indeed great need of good distinction in a case of killing by misfortune ; but in this case the unlawfulness of stealing apples cannot make it murder , unless the falling it self be unlawful . it must be a voluntary unlawful act that causeth the death , or else it is no murder by the law of reason : now the death of the man that was under the tree proceeded not from that , that the apples were not his that fell , but from the fall . but if a man shoot with a bow or a gun at another man's deer , and by misfortune kill a man , such shooting being both voluntary , and unlawful , and also the immediate cause of the mans death , may be drawn perhaps well enough sometimes to murder by a judge of the common-law . so likewise if a man shoot an arrow over a house , and by chance kill a man in the street , there is no doubt but by the law of reason it is murder , for though he meant no malice to the man slain , yet it is manifest , that he cared not whom he slew . in this difficulty of finding out what it is that the law of reason dictates , who is it that must decide the question ? la. in the case of misfortune , i think it belongs to the jury ; for it is matter of fact only : but when it is doubtful whether the action from which the misfortune came , were lawful , or unlawful , it is to be judged by the judge . ph. but if the unlawfulness of the action ( as the stealing of the apples ) did not cause the death of the man , then the stealing , be it , trespass , or felony , ought to be punished alone , as the law requireth . la. but for killing of a man se defendendo , the jury ( as sir edw. coke here says ) shall not in their verdict say it was se defendendo , but shall declare the manner of the fact in special , and clear it to the judge , to consider how it is to be called , whether se defendendo , manslaughter , or murder . ph. one would think so ; for it is not often within the capacity of a jury to distinguish the signification of the different and hard names which are given by lawyers to the killing of a man ; as murder and felony , which neither the laws , nor the makers of the laws have yet defined . the witnesses say , that thus and thus the person did , but not that it was murder or felony ; no more can the jury say , who ought to say nothing but what they hear from the witnesses , or from the prisoner . nor ought the judge to ground his sentence upon any thing else , besides the special matter found , which according as it is contrary , or not contrary to the statute , ought to be pronounced . la. but i have told you , that when the jury has found misfortune , or se defendendo , there is no judgment at all to be given , and the party is to be pardoned of course , saving that he shall forfeit his goods and chattells , debts and duties to the king. ph. but i understand not how there can be a crime for which there is no judgment , nor how any punishment can be inflicted without a precedent judgment , nor upon what ground the sheriff can seize the goods of any man , till it be judged that they be forfeited . i know that sir edw. coke saith , that in the judgment of hanging , the judgment of forfeiture is implyed , which i understand not ; though i understand well enough , that the sheriff by his office may seize the goods of a felon convicted ; much less do i conceive how the forfeiture of goods can be implyed in a no-judgment , nor do i conceive , that when the jury has found the special manner of the fact to be such , as is really no other than se defendendo , and consequently , no fault at all , why he should have any punishment at all . can you shew me any reason for it ? la. the reason lies in the custom . ph. you know that unreasonable customs are not law , but ought to be abolished ; and what custom is there more unreasonable than that a man should be punished without a fault ? la. then see the statute of hen. . cap. . ph. i find here , that at the making of this statute there was a question amongst the lawyers , in case one man should kill another that attempted feloniously to rob , or murder him in , or near any common high-way , court-way , horse-way , or foot-way , or in his mansion , messuage , or dwelling-place ; whether for the death of such a man one shall forfeit his goods and chattells , as a man should do for killing another by chance-medley , or in his own defence . this is the preamble , and penned as well as sir edw. coke could have wished ; but this statute does not determine that a man should forfeit his goods for killing a man se defendendo , or for killing him by misfortune ; but supposeth it only upon the opinion of the lawyers that then were . the body of the statute is , that if a man be indicted , or appealed for the death of such person so attempting as aforesaid , and the same by verdict be so found and tryed , he shall not forfeit any thing , but shall be discharged as if he had been found not guilty . you see the statute , now consider thereby in the case of killing se defendendo . frst , if a man kill another in his own defence , it is manifest , that the man slain did either attempt to rob , or to kill , or to wound him ; for else it was not done in his own defence . if then it were done in the street , or near the street as in a tavern , he forfeits nothing because the street is a high-way . so likewise it is to be said of all other common-ways . in what place therefore can a man kill another in his own defence , but that this statute will discharge him of the forfeiture ? la. but the statute says the attempt must be felonious . ph. when a man assaults me with a knife , sword , club , or other mortal weapon ; does any law forbid me to defend my self , or command me to stay so long as to know whether he have a felonious intent , or no ? therefore by this statute , in case it be found se defendendo , the forfeiture is discharged , if it be found otherwise , it is capital . if we read the statute of glocester , cap. . i think it will take away the difficulty : for by that statute , in case it be found by the countrey , that he did it in his own defence , or by misfortune , then by the report of the justices to the king , the king shall take him to his grace , if it please him . from whence it followeth ; first , that it was then thought law , that the jury may give the general verdict of se defendendo , which sir edw. coke denies . secondly , that the judge ought to report especial matter to the king. thirdly , that the king may take him to his grace , if he please , and consequently , that his goods are not to be seiz'd , till the king ( after the report of the judge heard ) give the sheriff command to do it . fourthly , that the general verdict of the king hinders not the king , but that he may judge of it upon the special matter , for it often happens that an ill-disposed person provokes a man with words , or otherwise on purpose to make him draw his sword , that he may kill him , and pretend it done in his own defence ; which appearing , the king may , without any offence to god , punish him as the cause shall require . lastly ( contrary to the doctrine of sir edw. coke ) he may in his own person be judge in the case , and annul the verdict of the jury , which a deputed judge cannot do . la. there be some cases wherein a man , though by the jury he be found not guilty , shall nevertheless forfeit his goods and chattells to the king. for example ; a man is slain , and one a. hating b. giveth out that it was b. that slew him : b. hearing thereof , fearing if he be tryed for it , that through the great power of a. and others that seek his hurt , he should be condemned , flieth , and afterwards is taken , and tryed ; and upon sufficient evidence is by the jury found not guilty ; yet because he fled he shall forfeit his goods and chattels , notwithstanding there be no such judgment given by the judge , nor appointed by any statute , but the law it self authoriseth the sheriff to seize them to the use of the king. ph. i see no reason ( which is common-law ) for it , and am sure it is grounded upon no statute . la. see sir edw. coke , inst. . sect. . and read . ph. if a man that is innocent be accus'd of felony , and for fear flieth for the same ; albeit that he be judicially acquitted of the felony , yet if it be found that he fled for the same , he shall ( notwithstanding his innocence ) forfeit all his goods and chattells , debts and duties . o unchristian , and abominable doctrine ! which also he in his own words following contradicteth : for ( saith he ) as to the forfeiture of them , the law will admit no proof against the presumption of the law grounded upon his flight , and so it is in many other cases : but that the general rule is , quod stabitur praesumptioni , donec probetur in contrarium , but you see it hath many exceptions . this general rule contradicts what he said before ; for there can be no exceptions to a general rule in law , that is not expresly made an exception by some statute , and to a general rule of equity there can be no exception at all . from the power of punishing , let us proceed to the power of pardoning . la. touching the power of pardoning , sir edw. coke says , inst. p. . that no man shall obtain charter of pardon out of parliament , and cites for it the statute of ed. . cap. . and says farther , that accordingly in a parliament roll it is said , that for the peace of the land it would help , that no pardon were granted but by parliament . ph. what lawful power would he have left to the king , that thus disableth him to practice mercy ? in the statute which he citeth , to prove that the king ought not to grant charters of pardon , but in parliament there are no such words , as any man may see ; for that statute is in print ; and that which he says is in the parliament roll , is but a wish of he tells not whom , and not a law ; and 't is strange that a private wish should be inroll'd amongst acts of parliament . if a man do you an injury , to whom ( think you ) belongeth the right of pardoning it ? la. doubtless to me alone , if to me alone be done that injury ; and to the king alone , if to him alone be done the injury ; and to both together , if the injury be done to both . ph. what part then has any man in the granting of a pardon , but the king and the party wrong'd . if you offend no member of either house , why should you ask their pardon . it is possible that a man may deserve a pardon ; or he may be such a one sometimes as the defence of the kingdom hath need of ; may not the king pardon him , though there be no parliament then sitting ? sir edw. coke's law is too general in this point , and i believe , if he had thought on 't , he would have excepted some persons , if not all the kings children , and his heir apparent ; and yet they are all his subjects , and subject to the law as other men. la. but if the king shall grant pardons of murder and felony , of his own head , there would be very little safety for any man , either out of his house , or in it , either by night , or by day : and for that very cause there have been many good statutes provided , which forbid the justices to allow of such pardons as do not specially name the crime . ph. those statutes , i confess , are reasonable , and very profitable , which forbid the judge to pardon murders , but what statute is there that forbids the king to do it ? there is a statute of rich. . c. . wherein the king promiseth not to pardon murder , but there is in it a clause for the saving of the kings regality . from which may be inferr'd , that the king did not grant away that power , when he thought good to use it for the common-wealth . such statutes are not laws to the king , but to his judges , and though the judges be commanded by the king not to allow pardons in many cases , yet if the king by writing command the judges to allow them , they ought to do it . i think , if the king think in his conscience it be for the good of the common-wealth , he sinneth not in it ; but i hold not that the king may pardon him without sin , if any other man be damnified by the crime committed , unless he cause reparation to be made , as far as the party offending can do it : and howsoever be it sin , or not sin , there is no power in england that may resist him , or speak evil of him lawfully . la. sir edw. coke denies not that ; and upon that ground it is that the king , he says , may pardon high treason ; for there can be no high treason , but against the king. ph. that 's well ; therefore he confesseth , that whatsoever the offence be , the king may pardon so much of it as is an injury to himself , and that by his own right , without breach of any law positive , or natural , or of any grant , if his conscience tell him that it be not to the dammage of the common-wealth ; and you know that to judge of what is good or evil to the common-wealth , belongeth to the king only . now tell me what it is which is said to be pardoned ? la. what can it be but only the offence ? if a man hath done a murder and be pardoned for the same , is it not the murder that is pardoned ? ph. nay , by your favour , if a man be pardoned for murder or any other offence , it is the man that is pardoned , the murder still remains murder . but what is pardon ? la. pardon ( as sir edw. coke says , inst. p. ) is deriv'd of per and dono , and signifies throughly to remit . ph. if the king remit the murder and not pardon the man that did it , what does the remission serve for ? la. you know well enough that when we say a murder , or any thing else is pardoned , all english-men understand thereby , that the punishment due to the offence is the thing remitted . ph. but for our understanding of one another , you ought to have said so at first . i understand now , that to pardon murder or felony is throughly to save the offender from all the punishment due unto him by the law for his offence . la. not so ; for sir edw. coke in the same chapter , p. . saith thus : a man commits felony , and is attainted thereof , or is abjur'd ; the king pardoneth the felony without any mention of the attainder or abjuration , the pardon is void . ph. what is it to be attainted ? la. to be attainted is , that his blood be held in law as stained and corrupted ; so that no inheritance can descend from him to his children , or to any that make claim by him . ph. is this attaint a part of the crime , or of the punishment ? la. it cannot be a part of the crime , because it is none of his own act ; 't is therefore a part of the punishment , viz. a disherison of the offender . ph. if it be a part of the punishment due , and yet not pardoned together with the rest ; then a pardon is not a through remitting of the punishment as sir edw. coke says it is . and what is abjuration ? la. when a clerk heretofore was convicted of felony , he might have saved his life by abjuring the realm ; that is , by departing the realm within a certain time appointed , and taking an oath never to return . but at this day all statutes for abjuration are repeal'd . ph. that also is a punishment , and by a pardon of the felony pardoned , unless a statute be in force to the contrary . there is also somewhat in the statute of rich. . c. . concerning the allowance of charters of pardons , which i understand not well . the words are these ; no charter of pardon for henceforth shall be allowed before our justices for murder , or for the death of a man by awayt , or malice prepens'd , treason , or rape of a woman , unless the same be specified in the same charter , for i think it follows thence , that if the king say in his charter , that he pardoneth the murder , then he breaketh not the statute , because he specifies the offence ; or if he saith , he pardoneth the killing by awayt , or of malice prepensed , he breaketh not the statute , he specifies the offence . also if he say so much as that the judge cannot doubt of the kings meaning to pardon him , i think the judge ought to allow it , because the statute saveth the kings liberty and regality in that point ; that is to say , the power to pardon him , such as are these words , notwithstanding any statute to the contrary , are sufficient to cause the charter to be allowed : for these words make it manifest , that the charter was not granted upon surprise , but to maintain and claim the kings liberty and power to shew mercy , when he seeth cause . the like meaning have these words perdonavimus omnimodam interfectionem ; that is to say , we have pardoned the killing in what manner soever it was done . but here we must remember that the king cannot pardon , without sin , any dammage thereby done to another man , unless he causes satisfaction to be made , as far as possibly the offender can , but is not bound to satisfie mens thirst of revenge ; for all revenge ought to proceed from god , and under god from the king. now ( besides in charters ) how are these offences specified ? la. they are specified by their names , as treason , petit treason , murder , rape , felony , and the like . ph. petit treason is felony , murder is felony , so is rape , robbery and theft , and ( as sir edw. coke says ) petit larceny is felony ; now if in a parliament-pardon , or in a coronation-pardon all felonies be pardoned ; whether is petit larceny pardoned , or not ? la. yes certainly it is pardoned . ph. and yet you see it is not specified , and yet it is a crime that hath less in it of the nature of felony , than there is in robbery . do not therefore rape , robbery , theft , pass under the pardon of all felonies ? la. i think they are all pardoned by the words of the statute , but those that are by the same statute excepted ; so that specification is needful only in charters of pardon , but in general pardons not so . for the statute rich. . cap. . forbids not the allowance of parliament-pardons , or coronation-pardons , and therefore the offences pardoned need not be specified , but may pass under the general word of all felonies . nor is it likely that the members of the parliament who drew up their own pardons , did not mean to make them as comprehensive as they could : and yet sir edw. coke , inst. sect. . at the word felony , seemeth to be of another mind ; for piracy is one species of felony , and yet when certain english-men had committed piracy in the last year of queen elizabeth , and came home into england , in the beginning of the reign of king james , trusting to his coronation-pardon of all felonies ; they were indicted ( sir edw. coke was then attorney general ) of the piracy before commissioners according to the statute of h. . and being found guilty were hang'd . the reason he alledgeth for it is , that it ought to have been specified by the name of piracy in the pardon , and therefore the pardon was not to be allowed . ph. why ought it to have been specified more than any other felony ? he should therefore have drawn his argument from the law of reason . la. also he does that ; for the tryal ( he says ) was by the common-law , and before commissioners not in the court of the lord admiral , by the civil-law , therefore he says it was an offence whereof the common-law could not take notice because it could not be tryed by twelve men. ph. if the common-law could not , or ought not to take notice of such offences , how could the offenders be tryed by twelve men , and found guilty , and hang'd , as they were ? if the common-law take no notice of piracy , what other offence was it for which they were hang'd ? is piracy two felonies , for one of which a man shall be hang'd by the civil-law , and for the other by the common-law ? truly i never read weaker reasoning in any author of the law of england , than in sir edw. coke's institutes , how well soever he could plead . la. though i have heard him much reprehended by others , as well as by you ; yet there be many excellent things , both for subtility , and for truth in these his institutes . ph. no better things than other lawyers have that write of the law , as of a science : his citing of aristotle , and of homer , and of other books which are commonly read to gown-men , do , in my opinion , but weaken his authority , for any man may do it by a servant ; but seeing the whole scene of that time is gone and past , let us proceed to somewhat else . wherein doth an act of oblivion differ from a parliament-pardon ? la. this word act of oblivion was never in our law-books before the car. . c. . and i wish it may never come again ; but from whence it came you may better know perhaps than i. ph. the first , and only act of oblivion that ever passed into a law , in any state that i have read of , was that amnestia , or oblivion of all quarrels between any of the citizens of athens , at any time before that act , without all exception of crime , or person . the occasion whereof was this . the lacedemonians having totally subdued the athenians , entred into the city of athens , and ordained that the people should choose thirty men of their own city to have the soveraign power over them . these being chosen behav'd themselves so outragiously , as caused a sedition , in which the citizens on both sides were daily slain . there was then a discreet person that propounded to each of the parties this proposition , that every man should return to his own , and forget all that was past ; which proposition was made , by consent on both sides , into a publick act , which for that cause was called an oblivion . upon the like disorder hapning in rome by the murder of julius caesar , the like act was propounded by cicero , and indeed passed , but was within few days after broken again by marcus antonius . in imitation of this act was made the act of car. . c. . la. by this it seems , that the act of oblivion made by king charles , was no other than a parliament-pardon , because it containeth a great number of exceptions , as the other parliament-pardons do , and the act of athens did not . ph. but yet there is a difference between the late act of oblivion made here , and an ordinary parliament-pardon : for concerning a fault pardoned in parliament by a general word , a suit in law may arise about this , whether the offender be signified by the word , or not , as whether the pardon of all felonies , be a pardon of piracy , or not : for you see by sir edw. coke's reports , that notwithstanding a pardon of felony , a sea - felony ( when he was attourney general ) was not pardoned . but by the late act of oblivion , which pardoned all manner of offences committed in the late civil war , no question could arise concerning crimes excepted . first , because no man can by law accuse another man of a fact , which by law is to be forgotten . secondly , because all crimes may be alledged , as proceeding from the licentiousness of the time , and from the silence of the law occasion'd by the civil war , and consequently ( unless the offenders person also were excepted , or unless the crime were committed before the war began ) are within the pardon . la. truly i think you say right : for if nothing had been pardoned , but what was done by occasion of the war , the raising of the war it self had not been pardoned . ph. i have done with crimes and punishments , let us come now to the laws of meum and tuum . la. we must then examine the statutes . ph. we must so , what they command and forbid , but not dispute of their justice : for the law of reason commands that every one observe the law which he hath assented to , and obey the person to whom he hath promised obedience and fidelity . then let us consider next the commentaries of sir edw. coke upon magna charta , and other statutes . ph. for the understanding of magna charta , it will be very necessary to run up into antient times , as far as history will give us leave , and consider not only the customs of our ancestors the saxons , but also the law of nature ( the most antient of all laws ) concerning the original of government , and acquisition of property , and concerning courts of judicature . and first , it is evident , that dominion , government , and laws , are far more antient than history , or any other writing , and that the beginning of all dominion amongst men was in families ; in which , first , the father of the family by the law of nature was absolute lord of his wife and children . secondly , made what laws amongst them he pleased . thirdly , was judge of all their controversies . fourthly , was not obliged by any law of man to follow any counsel , but his own . fifthly , what land soever the lord sat down upon , and made use of for his own , and his families benefit , was his propriety by the law of first-possession , in case it was void of inhabitants before , or by the law of war , in case they conquer'd it . in this conquest what enemies they took and saved were their servants : also such men as wanting possessions of lands , but furnished with arts necessary for mans life , came to dwell in the family for protection , became their subjects , and submitted themselves to the laws of the family : and all this is consonant , not only to the law of nature , but also to the practice of mankind set forth in history sacred , and praphane . la. do you think it lawful for a lord that is the soveraign ruler of his family , to make war upon another like soveraign lord , and dispossess him of his lands ? ph. it is lawful , or not lawful according to the intention of him that does it . for , first , being a soveraign ruler , he is not subject to any law of man ; and as to the law of god , where the intention is justifiable , the action is so also . the intention may be lawful in divers cases by the right of nature ; one of those cases is , when he is constrained to it by the necessity of subsisting . so the children of israel , besides that their leaders , moses and joshua had an immediate command from god to dispossess the canaanites , had also a just pretence to do what they did from the right of nature , which they had to preserve their lives , being unable otherwise to subsist . and as their preservation , so also is their security a just pretence of invading those whom they have just cause to fear , unless sufficient caution be given to take away their fear , which caution ( for any thing i can yet conceive ) is utterly impossible . necessity , and security are the principal justifications , before god , of beginning war. injuries receiv'd justifie a war defensive ; but for reparable injuries , if reparation be tendred , all invasion upon that title is iniquity . if you need examples , either from scripture , or other history concerning this right of nature in making war , you are able enough from your own reading , to find them out at your leisure . la. whereas you say , that the lands so won by the soveraign lord of a family , are his in propriety , you deny ( methinks ) all property to the subjects , how much soever any of them hath contributed to the victory . ph. i do so , nor do i see any reason to the contrary : for the subjects , whether they come into the family , have no title at all to demand any part of the land , or any thing else but security , to which also they are bound to contribute their whole strength , and , if need be , their whole fortunes : for it cannot be supposed that any one man can protect all the rest with his own single strength : and for the practice , it is manifest in all conquests , the land of the vanquished is in the sole power of the victor , and at his disposal . did not joshua and the high-priest divide the land of canaan in such sort among the tribes of israel , as they pleased ? did not the roman and graecian princes and states according to their own discretion , send out the colonies to inhabit such provinces as they had conquered ? is there at this day among the turks any inheritor of land , besides the sultan ? and was not all the land in england once in the hands of william the conqueror ? sir edw. coke himself confesses it ; therefore it is an universal truth , that all conquer'd lands , presently after victory , are the lands of him that conquer'd them . la. but you know that all soveraigns are said to have a double capacity ; viz. a natural capacity , as he is a man , and a a politick capacity , as a king. in his politick capacity i grant you , that king william the conqueror was the proper , and only owner once of all the land in england , but not in his natural capacity . ph. if he had them in his politick capacity , then they were so his own as not to dispose of any part thereof , but only to the benefit of his people , and that must be either by his own , or by the peoples discretion ; that is , by act of parliament . but where do you find that the conqueror disposed of his lands ( as he did some to english-men , some to french-men , and some to normans ) to be holden by divers tenures , as knight-service , soccage , &c. by act of parliament ? or that he ever called a parliament to have the assent of the lords and commons of england in disposing of those lands he had taken from them ? or for retaining of such and such lands in his own hands by the name of forrests for his own recreation , or magnificence ? you have heard perhaps that some lawyers , or other men reputed wise and good patriots have given out , that all the lands which the kings of england have possessed , have been given them by the people , to the end that they should therewith defray the charges of their wars , and pay the wages of their ministers , and that those lands were gained by the peoples money ; for that was pretended in the late civil war , when they took from the king his town of kingston upon hull ; but i know you do not think that the pretence was just . it cannot therefore be denyed but that land which king william the conqueror gave away to english-men and others , and which they now hold by his letters patents , and other conveyances , were properly , and really his own , or else the titles of them that now hold them must be invalid . la. i assent . as you have shewed me the beginning of monarchies , so let me hear your opinion concerning their growth . ph. great monarchies have proceeded from small families . first , by war , wherein the victor not only enlarged his territory , but also the number and riches of his subjects . as for other forms of common-wealths , they have been enlarged otherways . first , by a voluntary conjunction of many lords of families into one great aristocracie . secondly , by rebellion proceeded first , anarchy , and from anarchy proceeded any form that the calamities of them that lived therein did prompt them to ; whether it were that they chose an hereditary king , or an elective king for life , or that they agreed upon a council of certain persons ( which is aristocracy ) or a council of the whole people to have the soveraign power , which is democracy . after the first manner which is by war , grew up all the greatest kingdoms in the world , viz. the aegyptian , assyrian , persian and the macedonian monarchy ; and so did the great kingdoms of england , france , and spain . the second manner was the original of the venetian aristocracy , by the third way which is rebellion , grew up in divers great monarchies , perpetually changing from one form to another ; as in rome rebellion against kings produced democracy , upon which the senate usurped under sylla , and the people again upon the senate under marius , and the emperor usurped upon the people under caesar and his successors . la. do you think the distinction between natural and politick capacity is insignificant ? ph. no ; if the soveraign power be in an assembly of men , that assembly , whether it be aristocratical , or democratical , may possess lands , but it is in their politick capacity , because no natural man has any right to those lands , or any part of them , in the same manner they can command an act by plurality of commands , but the command of any one of them is of no effect . but when the soveraign power is in one man , the natural and politick capacity are in the same person , and as to possession of lands undistinguishable : but as to the acts and commands , they may be well distinguished in this manner . whatsoever a monarch does command , or do by consent of the people of his kingdom , may properly be said to be done in his politick capacity ; and whatsoever he commands by word of mouth only , or by letters signed with his hand , or sealed with any of his private seals is done in his natural capacity : nevertheless , his publick commands , though they be made in his politick capacity , have their original from his natural capacity . for in the making of laws ( which necessarily requires his assent ) his assent is natural : also those acts which are done by the king previously to the passing of them under the great seal of england , either by word of mouth , or warrant under his signet , or privy seal , are done in his natural capacity ; but when they have past the seal of england , they are to be taken as done in his politick capacity . la. i think verily your distinction is good : for natural capacity , and politick capacity signifie no more than private and publick right . therefore leaving this argument let us consider in the next place , as far as history will permit , what were the laws and customs of our ancestors . ph. the saxons , as also all the rest of germany not conquer'd by the roman emperors , nor compelled to use the imperial laws , were a savage and heathen people , living only by war and rapine ; and as some learned men in the roman antiquities affirm , had their name of germans from that their ancient trade of life , as if germans and hommes de guerre were all one . their rule over their family , servants and subjects was absolute , their laws no other than natural equity ; written law they had little , or none , and very few there were in the time of the caesars that could write , or read . the right to the government was either paternal , or by conquest , or by marriages . their succession to lands was determined by the pleasure of the master of the family , by gift , or deed in his life time ; and what land they disposed not of in their life time , descended after their death to their heirs . the heir was the eldest son ; the issue of the eldest son failing , they descended to the younger sons in their order , and for want of sons , to the daughters joyntly , as to one heir , or to be divided amongst them , and so to descend to their heirs in the same manner : and children failing , the uncle by the fathers , or mothers side ( according as the lands had been the fathers or the mothers ) succeeded to the inheritance , and so continually to the next of blood . and this was a natural descent , because naturally the nearer in blood , the nearer in kindness , and was held for the law of nature , not only amongst the germans , but also in most nations before they had a written law. the right of government , which is called jus regni descended in the same manner , except only that after the sons , it came to the eldest daughter first , and her heirs ; the reason whereof was , that government is indivisible . and this law continues still in england . la. seeing all the land which any soveraign lord possessed , was his own in propriety ; how came a subject to have a propriety in their lands ? ph. there be two sorts of propriety . one is , when a man holds his land from the gift of god only , which lands civilians call allodial which in a kingdom no man can have but the king. the other is when a man holds his land from another man as given him , in respect of service and obedience to that man , as a fee. the first kind of propriety is absolute , the other is in a manner conditional , because given for some service to be done unto the giver . the first kind of propriety excludes the right of all others ; the second excludes the right of all other subjects to the same land , but not the right of the soveraign , when the common good of the people shall require the use thereof . la. when those kings had thus parted with their lands , what was left them for the maintenance of their wars , either offensive , or defensive ; or for the maintenance of the royal family in such manner as not only becomes the dignity of a soveraign king , but is also necessary to keep his person and people from contempt . ph. they have means enough ; and besides what they gave their subjects , had much land remaining in their own hands afforrested for their recreation : for you know very well that a great part of the land of england was given for military service to the great men of the realm , who were for the most part of the kings kindred , or great favourites , much more land than they had need of for their own maintenance ; but so charged with one , or many souldiers , according to the quantity of land given , as there could be no want of souldiers , at all times , ready to resist an invading enemy : which souldiers those lords were bound to furnish , for a time certain , at their own charges . you know also , that the whole land was divided into hundreds , and those again into decennaries ; in which decennaries all men even to children of years of age , were bound to take the oath of allegiance : and you are to believe , that those men that hold their land by the service of husbandry , were all bound with their bodies , and fortunes to defend the kingdom against invaders by the law of nature : and so also such as they called villains , and held their land by baser drudgery , were obliged to defend the kingdom to the utmost of their power . nay , women , and children in such a necessity are bound to do such service as they can , that is to say , to bring weapons and victuals to them that fight , and to dig : but those that hold their land by service military , have lying upon them a greater obligation : for read and observe the form of doing homage , according as it is set down in the statute of edw. . which you doubt not , was in use before that time , and before the conquest . la. i become your man for life , for member and for worldly honour , and shall owe you my faith for the lands that i hold of you . ph. i pray you expound it . la. i think it is as much , as if you should say , i promise you to be at your command ; to perform with the hazard of my life , limbs and all my fortune , as i have charged my self to the reception of the lands you have given me , and to be ever faithful to you . this is the form of homage done to the king immediately ; but when one subject holdeth land of another by the like military service , then there is an exception added ; viz. saving the faith i owe to the king. ph. did he not also take an oath ? la. yes ; which is called the oath of fealty ; i shall be to you both faithful , and lawfully shall do such customs and services , as my duty is to you at the terms assigned ; so help me god , and all his saints . but both these services , and the services of husbandry were quickly after turned into rents , payable either in money , as in england ; or in corn , or other victuals , as in scotland and france . when the service was military , the tenant was for the most part bound to serve the king in his wars with one , or more persons , according to the yearly value of the land he held . ph. were they bound to find horse-men , or foot-men ? la. i do not find any law that requires any man , in respect of his tenancie , to serve on horseback . ph. was the tenant bound , in case he were called , to serve in person ? la. i think he was so in the beginning : for when lands were given for service military , and the tenant dying left his son and heir , the lord had the custody both of body and lands till the heir was twenty one years old ; and the reason thereof was , that the heir till that age of twenty one years , was presum'd to be unable to serve the king in his wars , which reason had been insufficient , if the heir had been bound to go to the wars in person . which ( methinks ) should ever hold for law , unless by some other law it come to be altered . these services together with other rights , as wardships first , possession of his tenants inheritance , licenses for alienation , felons goods , felons lands , if they were holden of the king , and the first years profit of the lands , of whomsoever they were holden , forfeitures , amercements , and many other aids could not but amount to a very great yearly revenue . add to this all that which the king might reasonably have imposed upon artificers and tradesmen ( for all men , whom the king protecteth , ought to contribute towards their own protection ) and consider then whether the kings of those times had not means enough , and to spare ( if god were not their enemy ) to defend their people against forreign enemies , and also to compell them to keep the peace amongst themselves . ph. and so had had the succeeding kings if they had never given their rights away , and their subjects always kept their oaths , and promises . in what manner proceeded those ancient saxons , and other nations of germany , especially the northern parts , to the making of their laws ? la. sir edw. coke out of divers saxon laws , gathered and published in saxon and latine by mr. lambert , inferreth , that the saxon kings , for the making of their laws , called together the lords and commons , in such manner as is used at this day in england . but by those laws of the saxons published by mr. lambert , it appeareth , that the kings called together the bishops , and a great part of the wisest and discreetest men of the realm , and made laws by their advice . ph. i think so ; for there is no king in the world , being of ripe years and sound mind , that made any law otherwise ; for it concerns them in their own interest to make such laws as the people can endure , and may keep them without impatience , and live in strength and courage to defend their king and countrey , against their potent neighbours . but how was it discerned , and by whom was it determined , who were those wisest and discreetest men ? it is a hard matter to know who is wisest in our times . we know well enough who chooseth a knight of the shire , and what towns are to send burgesses to the parliament , therefore if it were determined also in those dayes , who those wise men should be , then , i confess , that the parliaments of the old saxons , and the parliaments of england since are the same thing , and sir edw. coke is in the right . tell me therefore , if you can , when those towns which now send burgesses to the parliament , began to do so , and upon what cause one town had this priviledge , and another town , though much more populous , had not . la. at what time began this custom i cannot tell ; but i am sure it is more ancient than the city of salisbury ; because there come two burgesses to parliament for a place near to it , called old sarum , which ( as i rid in sight of it ) if i should tell a stranger that knew not what the word burgess meant , he would think were a couple of rabbets , the place looketh so like a long cony-borough . and yet a good argument may be drawn from thence , that the townsmen of every town were the electors of their own burgesses , and judges of their discretion ; and that the law , whether they be discreet or not , will suppose them to be discreet till the contrary be apparent . therefore where it is said , that the king called together the more discreet men of his realm ; it must be understood of such elections as are now in use : by which it is manifest , that those great and general moots assembled by the old saxon kings , were of the same nature with the parliaments assembled since the conquest . ph. i think your reason is good : for i cannot conceive , how the king , or any other but the inhabitants of the boroughs themselves , can take notice of the discretion , or sufficiency of those they were to send to the parliament . and for the antiquity of the burgess-towns , since it is not mentioned in any history , or certain record now extant , it is free for any man to propound his conjecture . you know , that this land was invaded by the saxons at several times , and conquered by pieces in several wars ; so that there were in england many kings at once , and every of them had his parliament , and therefore according as there were more , or fewer walled towns within each kings dominion , his parliament had the more , or fewer burgesses : but when all these lesser kingdoms were joyned into one , then to that one parliament came burgesses from all the burroughs of england . and this perhaps may be the reason , why there be so many more such burroughs in the west , than in any other part of the kingdom ; the west being more populous , and also more obnoxious to invaders , and for that cause having greater store of towns fortified . this i think may be the original of that priviledge which some towns have to send burgesses to the parliament , and others have not . la. the conjecture is not improbable , and for want of greater certainty , may be allowed . but seeing it is commonly receiv'd , that for the making of a law , there ought to be had the assent of the lords spiritual and temporal ; whom do you account in the parliaments of the old saxons for lords temporal , and whom for lords spiritual ? for the book called the mode of holding parliaments , agreeth punctually with the manner of holding them at this day , and was written ( as sir edw. coke says ) in the time of the saxons , and before the conquest . ph. mr. selden ( a greater antiquary than sir edw. coke ) in the last edition of his book of titles of honour says , that that book called the mode , &c. was not written till about the time of rich. . and seems to me to prove it . but howsoever that be , it is apparent by the saxon laws set forth by mr. lambert , that there were always called to the parliament , certain great persons called aldermen , alias earls ; and so you have a house of lords , and a house of commons . also you will find in the same place , that after the saxons had received the faith of christ , those bishops that were amongst them , were always at the great mootes , in which they made their laws . thus you have a perfect english parliament , saving that the name of barons was not amongst them , as being a french title , which came in with the conqueror . finis . notes, typically marginal, from the original text notes for div a -e the king is the supream judge . reports or causes in chancery collected by sir george cary, one of the masters of the chancery in in [sic] anno , out of the labours of master william lambert ; whereunto is annexed the kings order and decree in chancery for a rule to be observed by the chancellor in that court, exemplified and enrolled for a perpetuall record there, anno ; together with an alphabeticall table of all the cases. england and wales. court of chancery. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing c ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing c estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) reports or causes in chancery collected by sir george cary, one of the masters of the chancery in in [sic] anno , out of the labours of master william lambert ; whereunto is annexed the kings order and decree in chancery for a rule to be observed by the chancellor in that court, exemplified and enrolled for a perpetuall record there, anno ; together with an alphabeticall table of all the cases. england and wales. court of chancery. carew, george, sir, d. . lambarde, william, - . [ ], , [ ] p. printed by e.g. for w. lee [and others], london : . includes index. eng law reports, digests, etc. -- england. equity -- england. a r (wing c ). civilwar no reports or causes in chancery, collected by sir george cary one of the masters of the chancery in in [sic] anno . out of the labours of carew, george, sir d the rate of defects per , words puts this text in the d category of texts with between and defects per , words. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion reports or causes in chancery , collected by sir george cary one of the masters of the chancery in in anno . out of the labours of master william lambert . whereunto is annexed , the kings order and decree in chancery , for a rule to be observed by the chancellor in that court , exemplified and enrolled for a perpetuall record there . anno . together with an alphabeticall table of all the cases . london , printed by e. g. for w. lee , d. pakeman , and g. bedell . anno d. . the table . a. fol. atturnament denyed but in some cases , action of the case seeketh damages , subpoena rem ipsam abating a bill , archbishops certificate taken for proofe , amending of answers , a guardian admitted to an infant , attachment against the defendant , and subpoena against the bearer , attorney enjoyned not to proceed at law , injunction ( si ita sit ) attorney ordered not to proceed , and yet the defendant proceeds , award made by justices of assize to be performed , advowson passeth not by livery within view without deed , attachment ●or no● performing a decree , a yeares value allowed for surrender of coppyhold land , a master and examinor examined witnesses in the countrey , affidavit for leaving a subpoena at the defend . lodging , attachment discharged , and a bill of perjury put in , attachment upon the defendants confession he was served , , . an english bill for perjury , attachment for not appearing , attachment with proclamation discharged paying the fees , attorney enjoyned in court not to proced at law , affidavit that he saw a subpoena served , attachment , attachment against a witnesse served to testifie , attachment upon oath ●efo●e the bayliffes of mountgo . attachment upon oath before the major of totnes , an action against a drunken mans words seekes reliefe , dismissed , atta●hment discharged by supersedeas , assumpsit referred to the common law attachement for breaking an order in court attachment upon oath before the portrive of minxhead attachment discharged paying the plaint . s. award ordered to be performed attachment for not appearing attachment in putting in demurrer instead of an answer , attachment against witnesses served to testifie attachment for costs b. bailment countermanded bringing in of evidences into court bringing in an obligation to be cancelled bill against a court roll entered indirectly bill of revivor without cause payeth costs ib. bill against roger hall and another , r.h. served , must shew it by plea bill of praemunire proceeded in here bond of such as appeare upon contempt to attend a die in diem bill for reliefe after execution dismissed bill upon a promise to dry clothes dismissed ib. bond put in suit for not sealing a release stayed by judgement bill dismissed , the counsellors hand being counterfeited bill for l. dismissed . bill without a councellors hand dismissed , bill for tuition of an infant , billet in paper and no bill in , costs , bayliffes of corporation not compellable to make a lease promised , bond put in suit for not performing an award stayed by injunction , , c. condition to undoe estates in lands , copyholders reliefe in chancery , copyhold devise , copyhold forfeited , cefti quae use , remedy here , copartners to joyne in plea , ●●nuzees fraud holpen , copyhold tailed , contents of a mannor , as it was yeares past , coppy good by devise without mention of surrender , commission to examine witnesses , costs for want of a bill , the subpoena lost , clerke fined for his mistake in a subpoena , contempt discharged , and a new commission , costs upon oath before the major of totnes , costs for prosecuting contempts , and none proved , costs upon a billet delivered to a brother , commission to take answer , commission to examine in perpetuall memory , commission , warning given but to one defend . costs for a witnesse served to testifie , commission to answer a demurrer returned , councellor not to be examined , costs for want of a bill , commission of rebellion for non payment of costs , costs for want of a bill , the billet lost , commission to take answers , being . years old , councell to attend concerning an award , costs allowed the defend ▪ in a commission of rebellion , costs for want of a bill , the billet lost , commission to examine in perpetuall memory , commission to prove the receipt of rents , &c. costs in a demurrer , & the councellor forbid to practise , cuttings case lands conveyed to two of the six clerkes , costs for making attachmennt before bill in court , commission to examine in perpetuall memory , costs for a witnesse served to testifie , commission to take answer upon a languidus returned , commission to put the plaintant in possession . commission to the examinor of the court to examine , certiorare to the chancellor of durham , commission of rebellion , how the bonds to be taken , covenant to repaire a house , a demurre , but ordered to answer . costs and attachment for serving a subpoena indirectly , costs to witnesses , served to testifie , costs for want of a bill , costs in comming up to make affidavit for impotency , costs for want of a bill , commission to set out wayes and passages . d. discharge himself of a bond s. & modis deeds brought in court , defendant examined as a witnesse , decree against infants , deeds how to be proved , defendant enjoyned not to proceed at law , demurrer and not in person , ordered to make direct answer defend . appeating gratis , attach . being out is committed , defend . served with subpoena the day of the returne , decrees entred at large , defend . examined upon interr . to end the cause , defend . dismissed , the plaint . not appearing at the hearing , defend . to acknowledge satisfaction , decree for a fould-course , de vilaica removenda , and injunction for a personage , decree for s. d. rent , and suit of court , ducens tecum for deeds to be delivered to the usher , defend . took a commission , and returned a demurrer , def. executors to answer profits taken by their fathers , defend . licensed to depart after issue , defend . in a bill of perjury , is to be examined upon inter . defend . hath no costs , because the subpoena is lost . defend . disclaiming , no witnesses to be examined , def. bound to pay money at one place , tenders in another , demurrer to a bill of revivor ordered to answer , def. demurres for that there is remedy at law , to answer , decree for coppyhold lands , dismissed being under s. per annum , day given to the sheriffe to returne an att●chment , defend . demurred generally ordered to answer , , defend . stayed by injunction from pulling down roomes , dumb man not to answer upon subpoena , defend . wife examined as a witnesse , deeds neglected to be inrolled sub. to shew cause why not , decree for the plaintant , and yet put out of possession by the defendant , defend . departing without license , an attach. against him , def. discharged of the attach . the sub. being counterfeit , defendant licensed to depart after answer in a writ of the priviledge , defend . committed for a rescue , brought his action for a false returne , . demurrer without shewing any cause , ordered to answer , debt for l , dismissed , dismission for that they have bin in possession . years , day given to defend . to rejoyne , def. not to answer till a counsellors hand be to the bill , dismissed the lands being under s. per annum , demurrer generally ordered to answer , defend . charged upon account shall not answer , upon promise shall , , . e. extents law , no reliefe in chancery , equitas sequitur legem , executor not to release without his copartners , executor not to answer without his copartners , executors how upon trust , executors husband ordered to pay debts , entring decrees and dismissions , f. fines , recoveries , &c. the lord chancellor will not question , feoffees to use , feoffee dying , no remedy against his heire , feoffee shall doe acts for the feoffors good , fraud in goods , feoffee to retain the land to his own use , fraud upon fraud , feoffee punishable for makeing estate , forced to sue an obligation , fines fraudulent , fines of copyholds , fraud by making a lease after a feoffment , and before livery and seizin , feme sole sueth out a subpoena , and the same day is married , dismissed with costs , feme covert whose husband is in the gallies , must answer matter of equity , , feb. . dyed sir nicholas bacon . . april , sir thomas bromely had the seale delivered , feme covert sueth for maintenance , g. giving day to one , it shall help the other , greater part of debt paid , and the rest offered reliefe here , goods of felons difficult to prove , a subpoena , grand lease forfeited by coven , reliefe for it , generall customes reduced to certainty , grantee distraines one , ordered to sue the rest , h. help against executors . heire of purchasor to pay money behind , husband appears and demurrs , the wife not , attachment , husband appears the wife not , attach . against them both , habeas corpus to the warden of the fleet , to have the defend ▪ in court to be charged with a debt , heire sued to make a lease , for which his elder brother took a fine , or to repay the same . i. judgement not to be examined here , iuramentum delatum a part● intent specified in a feoffment , justifying the detaining of evidences , joyntenants one taking the profits , judges called into the exchequer chamber about a lease , injunction to deliver goods , . injunction to stay proceedings at law , injunction for possession as at the time of the bill , jurisdiction of wales , rejected , injunction to stay suite according to promise , injunction with a clause ( si ita sit ) injunction for not appearing , and to stay suits , injunction to discharge execution , injunction for possession , injunction for possession , as at the bill , & yeeres before , injunction upon certificate of justices of assize , injunction dissolved , if cause be not shewed , injunction because the defendant began first in chancery , injunction for corne sowed upon a lease paroll , jurisdiction of oxford rejected jurisdiction of lancaster alloweds injunction disobeyed , an attachment , jurisdiction of chester allowed , jurisdiction of oxford allowed , jurisdiction of the exchequer rejected , . injunction against the spirituall court , jurisdiction of oxford allowed , jurisdiction of wales allowed , injunction to stay judgement in an action of waste , injunction to stay suits , because the queene was not paid her fine , jurisdiction of chester allowed , jurisdiction of wales allowed , injunction for defrauding the queene of her fine , jurisdiction of the mannor of woodstock overruled , jurisdiction of wales overuled , jurisdiction of wales admitted , jurisdiction of the north allowed , jurisdiction of the exchequer disallowed , jurisdiction of the dutchy of lancaster allowed , jurisdiction of wales not allowed for a promise , injunction left at the defendants house , and disobeyed an attachment , jurisdiction of wales allowed , injunction to stay suit at common law , jurisdiction of chester allowed , injunction to stay suit at common law , injunction to stay suit of quo minus in exchequer , injunction to stay suits at common law , l. leases dammages in waste moderated , lease in paroll , no help in chancery , lease for yeares , no help , lands sold in two counties , livery made in one , leassor to have the woods , excepting fireboot , &c. leases devised to his wife , to come to his sonne , leases conveyed in trust to pay debts , lease paroll , no help , lands intended for a schoole , otherwise given by will , leases of corporations , their names mistaken , leases holpen against patentees , leassee of a copyholder punishable in waste , though the copyholder himselfe be not , lord chancellors letters to a noble man , that had broken a decree to performe the same . leassee not named in the premises , decreed , liberty for a common fishing , m. mulier and bastard , marriage portion recovered and reversed , holpen , money given to buy lands , money paid upon a single obligation , messuage cum pertin. carries the land used with it , mannor demised , except court baron , mulier and bastard joyn , misdemeanor in courts reformed , man and wife plaintants , she dyes ; no bill of revivor , but he must answer , money paid for a reversion which could not be enjoyed ordered to repay it , n. nvdum pactum , no help here , no reliefe against his own deed , no seizin of rent-seck , no help here , no reliefe against a voluntary act , no help touching power to make leases , no witnesses to be examined till the defendants have put in their answer , no costs upon a disclaimer , new commission to examine witnesses not appearing at a former commission , not to extend one mans land onely , where many are subject , new commission to the defendant , and publication staid , o. one deed by which two claime , oath for serving a subpoena before witnesses examined in perpetuall memory , order for evidences , one executor sueth the other , to put in sureties to perform the will , one executor gets the estate and dyeth , the other sueth his executor , one subpoena against two defendants , and two bills put in , ordered to answer both , p. payment after the day holpen upon bonds , payment without acquittance , purchasor of parcell , not subject to the whole rent charge , possession sororis for the heire collaterall , possession of the mother , for the heire collater . payment of creditors out of a coppyhold , perpetuities no help , purchasor better then a surety in case of reliefe , power to make leases , payment by the surety , possession bound by decree , plaintant mistaking his title in his bill , proceeding where there is no proofe , publication of witnesses in perpetuall memory a yeare past , publication of witnesses to be used in a court baron , plaintant in execution at the suit of the king , delivered by supersedeas ; plaint . bringing l. in court , execution to stay for the rest , plaint . distraineth after replication , therefore an injunction plaint . in execution upon statute , delivered upon recognizance , plaint . to take execution for l. of a judgement of l. plaint . married before answer , no bill of revivor , plaint . sueth for tokens delivered as a suitor in marriage , prosecuting contempts after a generall pardon payeth costs , plaint . to make one a party , whom the defendant prayeth in ayde , plaintant requires one to appeare in the queens name , costs , prohibition for tythes of lands held in capite , plaint . enters upon the defendants possession , an injunction or dismissed . prohibition for tythes , parcell of the dutchy of cornewall , consultation . perjury for making oath , one of the same name sued and discharged , plaint . to shew where he had his counterfeit writs , r. ravishment de guard , a subpoena , release of joint feoffee , reliefe for a trust upon a lease , rent reserved and paid ▪ the heire ordered to pay it , rent charge upon severall men lands , and levyed upon one , an injunction is granted s. suing in a wrong county , ayde for the plaintant here , statute lands , priority sans coven . survivor in joynt tenancy , suer●y , chargeable , and not in some cases , supply of true meaning in feoffments , statute acknowledged in my name , statute for charitable uses , subpoena to appear before the major of london , sheriffe amerced for return . non est inventus , setting down depositions in a wrong sence , subpoena delivered to the defendants wife , subpoena hanged on a dore , where the defend . resorted , suit to have the defend . performe an award , subpoena to testifie attachment for not appearing , soliciter served to testifie ordered not to be examined , soliciter served to testifie is discharged , suit to have an award decreed , suit for common of pasture , subpoena delived to the defendants servant , suit retained after judgement and execution , subpoena delivered to the defendants wife , suit for s. rent per annum dismissed , suit for a hawke , and evidences dismissed , suit stayed in the kings bench , removed from london , suit for common , svbpoena served within two dayes of the termes end ; soliciter ordered to be examined with caution , subpoena left in the defendants hall , attachment , server of a subp. imprisoned , attach . against defend . , subpoena shewed and offered , attach . for not appearing , suit upon a promise to surrender a lease , dismissed , subpoena to testifie where no suit is , discharged , subpoena cautiously served , attachment against the plaint . suit for hay , &c. not worth s. dismissed , suit for poor under s. per annum retained , . t. tenant right fines how paid , things left to the conscience of the party , tenant of the land uncertaine , a subpoena , tenants in common to know the certainty , turning of water courses , two contend for a tenant , the tenant paying his rent in court , the server of a subpoena payeth costs , trustee to convey the lands according to the trust , two joyntenants , the one dies , the other to make estate , two executors exhibit two bills , answer one the other dismissed , u. voyd limitation del lease in volunt . uses of gavelkind land , vendee against one appointed to sell him land , variance in a bill of revivor from the first bill disallowed , w. warranty collaterall , no remedy , wager of law , no help , where remedy at law , no help here , waste holpen here , and no remedy at law , waste forbidden here , and not punishable at law , witnesses ad informandum conscientiam , witnesse served to testifie , pressed for a souldier , writ of priviledge granted to a sutor , , witnesses examined before answer , witnesses examined by fraud suppressed , witnesses taken after publication ad informand . conscien . wife after the death of her husband , sueth a bill of revivor , witnesses that answer insufficiently , againe examined , witnesses examined in perpetuall memory , moved to use their testimony , witnesses examined before the towne clarke of york suppressed , witnesses examined , . and . p. and mary ordered to prefer a bill for publication , witnesse not able to travell discharged , writ of priviledge disallowed , reports in chancery . if a man be bound in a penalty to pay money at a day , and place , by obligation , and intending to pay the same , is robbed by the way ; or hath intreated by word some further respite at the hands of the obligee , or commeth short of the place by any misfortune ; and so failing of the payment , doth neverthelesse provide and tender the money in short time after ; in these and many such like cases the chancery will compell the obligee to take his principall with some reasonable consideration of his dammages ( quantum expediat ) for if this was not , men would doe that by covenant , whi●h they do now by bond . the like favour is extendable against them that will take advantage upon any strict condition , for undoing the estate of another in lands upon a small or trifling default . so if two be joyntly and severally bound to pay money , and the obligee will give longer day ( or other favour ) to the one , and then will sue the other for the debt , he which is sued shall sue in chancery . e. . . a man payeth debt upon a single obligation without taking acquittance , therefore this will not discharge him at the common law , but he shall be relieved therein in chancery ( quare . f. . . by the parties oath , but not by witnesse . if a man fell trees upon the lands of a lessee for life , and the lessee recovereth dammages amounting to the treble value that he ought to answer to his leasor in waste , and the leasor dyeth before any recovery in waste , now the leassee shall not be suffered to take those damages himselfe , being so discharged of them , but shall be restrained in chancery . doctor and student . . and . if the obligee have received the most part of the money , payable upon the obligation at the peremptory time and place , and will neverthelesse extend the whole forfeiture , immediately refusing soone after the default , to accept of the residue tendered unto him , the obligor may find aide in chancery . if a man grant a rent charge out of all his lands , and afterwards selleth his lands by parcels to divers persons , and the grantee of the rent will from time to time levy the whole rent upon one of the purchasors onely , he shall be eased in chancery by a contribution from the rest of the purchase●s ; and the grantee shall be restrained by order to charge the same upon him onely . a man recovered at the common law a debt in one county , where the obligation was made in another county against the stat. . r. . c. . the defendant sued , and suggested in chancery , that by this meanes he was put from divers pleas of which he might have taken advantage , if the obligation had been sued in the very county and he had ayde there ; for the chancellor said that he sued to hide the truth and against conscience also , which cannot be so well found in any place , as in the very county where a thing is done , . e. . . and . e. . . a man shall not be prejudiced by formality or mispleading , &c. touching copy-holders , mr. fitz-harbert in his natur. brevium fol. . noteth well that , forasmuch as hee cannot have any writ of false judgement , nor other remedy at common law against his lord , therefore he shall have aide in chancery ; and therefore if the lord will put out his copyholder that payeth his customes and services , or will not admit him to whose use a surrender is made , or will not hold his court for the benefit of his copyholder , or will exact fines arbitrary , where they be customary and certaine , the copyholder shall have a subpoe ▪ to restraine or compell him as the case shall require , dyer . and fitz. subpoena first this court forbeareth directly to examine any judgement given at the common law , to which end the statutes . e. . cap. . . e. . cap. . . h. . cap. . and . r. . cap. . were made ; and it seemeth that the common law used some power to restraine such examinations of judgements before all these statutes , for . e. . upon a recovery had upon a quare impedit , the defendant sued for help in the chancery ; and they sent a prohibition , and upon that an attachment against him . fitz-harbert prohibition the like hath been done upon suits in the courts of requests . but yet . e. . . one recovered debt upon an obligation in one county , whereas the obligation was made in an other county , and he complained in chancery because he had lost some advantages , which he might have taken if the triall had been in the other county , which thing in effect was made a law by the statute , . r. . c. . and in the case of paramore ann. . & . eliz. a fine supposed to be levyed by an infant , was examined in chancery , after it had been allowed by examination of the justices of the com . pleas ; but whether these and such other may seeme rather to examine the manner , then the very matter and substance of the thing adjudged , it is worthy of consideration . sir will. cordall mr. of the rols denyed to compell one to atturn here that was at liberty by the common law , in the case of sir iohn windham . chancellor bromeley likewise denyed such compulsion generally , but where the party quarrelled with the particular tenants estate , or entreth iuto some part of the lands in demise , or hath covenanted for recompence for non atturnment there he utterly denyeth to inforce the atturnment . pasch. . eliz. in case of philips , and doctor sandford . such assurances as be used for the common repose of mens estates , the chancery will not draw in question ; for a fine with proclamation ought after the five yeares , to be a bar in conscience as it is in law ; so shall it be of a common recovery for docking the intaile , doctor and student , . . so likewise it seemeth that the continued possession of the bastard eisne shall prevaile in conscience against the right of the mulier ●●sne . and albeit a feme covert may be thought to joyne with her husband for fear in a fine of her l●nds , yet after the five yeares it shall not be recalled , for the generall inconveniences that may ensue to that highest assurance . doctor and student , . and if remedy in chancery should be extended to a collaterall warrantye , the same saint germaine saith that then all writings shall be examined . if the extender undervalue the lands , as there is no remedy at the common law , . h. . dupleges case , because the debtor may help himselfe by payment of the debt , so in conscience there ought to be no reliefe , unlesse it were done by covin. idem . upon nudum pactū there ought to be no more help in chancery , then there is at the common law , neither against him that hath waged his law in debt , though peradventure falsely . idem . where a man made title to a rent seck of which there was no seizin , nor for which he had any action at the common law , and prayed help here it was denyed upon conference had by the lord keeper with the judges , michal . . a copyholder dyeth leaving two daughters by divers venters , both which do enter and take the profits , without doing fealties , or paying fine , and without any admittance by the court , and the eldest dyeth without issue : this onely possession sufficeth to order the copyhold to the collaterall heir of the eldest , and not ●or the sister of the half bloud , . eliz. dyer . a copyholder in fee hath issue a daughter and a son by two venters ; the lord committeth the custody of the land , and of the son to the mother who taketh the profits , and the son dyeth before any admittance ; this copyhold was ordered also for the heire collaterall against the sister of the halfe bloud , because the mothers possession serveth for the son , anno . eliz. ibid. the lord devised a copyhold to c. for life , and after passed the freehold of the soyle thereof by livery of seizin thereof to b. for life reserving a rent ; and then by fine levyed , doth grant the said land to the said c. ( come ceo que il ad de son done &c. ) and c. accepteth the said rent of b. and thereupon it was questioned whether or no , the copyhold of c. were gone in conscience . h. . dyer . a copyholder within age is admitted , and the lord committeth the custody to the mother of the infant , whose under-tenant cutteth down timber trees , which being presented , the lord seizeth the land for the forfeiture ( during still the nonage ) and keepeth it till he dyeth , and it descendeth to his heire , who and his father had kept it yeares , and for that the copyholder moved suite in the chancery . yeares since which was now revived , and the forfeiture was taken during his minority , he was restored to his possession till the lord should recover it for the forfeiture by the common law , in the case of mr. litton mich. . and . eliz. justice clench , and the masters . tenure by tenant right as it is usuall towards the borders of scotland , shall not pay any uncertaine fine or incombe at the change of the lord by alienation , but by death which is the act of god ; for otherwise the lord might weary the tenant by frequent alienations ; but it may be fine uncertaine upon the alienation of the tenant as well upon death as discent , for that it is the act of the tenant , and in his power . sir thomas egerton mich. . case mannor de thwaites & les iustices accord , the same holdeth in copyholders , for the custome must be reasonable . a copyholder in fee surrendreth to the use of one , and to his heires upon condition of redemption , writeth downe his debts , and willeth part of his copyhold to be sold for payment of his debts after his death ; one of the creditors payeth the money at the day to the morgage , who neverthelesse inrolleth the surrender afterward ; this other creditor complaineth against him , and the heir in chancery , and had a decree that the copyhold should be sold for the payment of debts , and the remainder of it ( if any were ) should discend to the heire . eliz. for although the devise of the copyhold be void , yet to take it from the surrendree , ( who held it onely for money to be paid ) and to pay him and the other creditors therewith , hath good warrant in equity , and the heire hath no wrong for that it was gone from him by the surrender lawfully . termino trinitatis . eliz. the lord keeper sir thomas egerton pronounced openly , that he for avoyding perjuries and other abuses , would not give help to a lease claimed by paroll onely . one cutting brought an action upon assumpsit for one hundred pound against the executors of a testator that promised the money in marriage with his daughter , and recovered at the common law ; which judgement was reversed in the chequer chamber , but cutting sought help in chancery , where it was proved that the executors had assets for funeralls , debts , and legacies with a good overplus to satisfie the complainant ; and therefore after hearing and report thereof by doctor stanhope , and mr. lambert , it was decreed for the complainant ; but the executor exhibited his bill for remedy ; upon which justice owen thought he was not to be heard till he had satisfied the decree ; and then also but onely upon new matter ; not thus resting , the executor exhibits a second bill which was referred to master lambert , but he excused himselfe , that he was not to judge in his own cause and recommended it to the censure of the lord keeper who ordered the executor to performe the first decree , micha . . eliz. . trinity . eliz. the lord egerton pronounced openly , that he would give none aide in chancery , ●or the maintenance of any perpetuities , nor of any lease for hundred● , or thousands of yeares , made of lands holden in capite ; because the latter be grounded upon fraud , and the former be fights against god . a. was bound in a statute to b. and one c. lendeth l. to a. with which a. bought lands , and assured the same to c. for his hundred pound . a , faileth in payment . b. extended that land . c. was denyed help in chancery , although the land was bought with his mony ; for b. hath priority of right in law without covyn , crompton . . a. a. delivereth twenty pound to b. to the use of c. a woman to be delivered her the day of her marriage , before her marriage . a countermandeth it , and calleth home the money , c. shall not be ayded in chancery , because there is no consideration why she should have it . dyer . . a term or devised his terme , and whole lease to b. provisoe that if b. dye , living c. then the terme shall wholly remaine to c. b. selleth the terme , and dyeth , living c. and by the opinion of the justices c. shall have no remedy , dyer , . the vice countesse mountague claimed the wardship of the body of the heire of a tenant of hers , which was esloyned from her 〈◊〉 she suspecting some of the heires friends exhibited her bill in chancery ; and it seemed they should not answer to charge themselves criminally ; especially in this case , where so great a punishment as abjuration may follow , &c. cromer and peniston married two sisters joyntly possessed of a lease for yeares , the wife of cromer dyed ; peniston claimed the whole by survivor , cromer exhibited a bill suggesting that peniston had in her life time severed the joyneture by some act ●ecretly : the lord keeper over-ruled that the defendant should not answer mich. . and . eliz. as concerning confidence secretly knit to estates , it hath manifold considerations ; first if my feoffee upon confidence , doe infeoffe another bona fide , that knoweth not of the confidence , i am without remedy . fitz harbert sub . but if the second feoffee have notice of the use , he shall be compelled here to performe it , . e. . . so if my feoffee dye , and the land discend to his heire , i have no remedy against him . . e. . . all the justices ; and this confidence extendeth not onely to the taking of the profits , but also that the feoffees shall doe acts for the good of the feoffor ; and if the feoffor require him to make an estate to any other , he o●ght to doe it , but thereof he ought to have request in writing , for he is not to doe it upon a bare message , or upon desire by word onely , . h. . . . and if the feoffor will have him make an estate to i. for life , the remainder in fee to b. though i . will not take the estate , yet b. shall compell him to make estate to him in the life of i. ibid. . finch . so if the feoffee be disseised , the feoffor shall compell him to sue an assize ▪ : e. . . neverthelesse those feoffees might grant necessary offices as stewardships , bailyweeks , &c. though they may not grant annuities to learned men to defend the land , . h. . . they may also as it seemeth give fees to councell , and shall have allowance thereof , so far as they are from being maintainors . if i give money to one to purchase lands therewith to him and his heirs , and to permit me to take the profits thereof during my life , and he with-holdeth the profits , he shall be compelled by subpoena crompton , fol. . b. if ( cesti que use ) be attainted of felony , the lord shall not be ayded by subpoena to have his escheat ; and if the heir be barred by the corruption of his bloud , then the feoffee as it seemeth shall retaine the land to his own use . e. . . feoffments of use , brooke . when the use is to the feoffee and his heirs , without any other intent , there ( cesti que use ) may declare his will thereof and may vary at his pleasure ; but if it be to any intent certain , as to take back an estate taile , or with remainders to others , then he cannot change it , for the interest that is in others , . e. . . a. whether the use of gavell kind lands should ensue the nature of the land , and so of borrough english , or shall be at the common law , because the customes doe extend to lands , and not to uses , or rents as is said against fitz harbert . although ( cesti que use ) of a terme for yeares be not within the statute of uses , rather therefore he shall have remedy in chancery , crompton . where the complainant will rest upon the oath of the defendant , and be contented to be judged there by , their the oath of bewraying is hardly granted . conscience never resisteth the law , nor addeth to it , but onely where the law is directly in it selfe against the law of god , or the law of reason ; for in other things equitas sequitur legem . saint germaine , fol. . . sometimes equity helpeth a man to that , for the which there is no law of man provided . fol. . ibid. sometimes equity followes the meaning of the parties in their contract , . ibid. where a common inconvenience will follow , if the common law be broken , there the chancery shall not help . . for albeit the party cannot with a good conscience take the advantage of sundry things to which he comes , yet the court of conscience is not thereby bound to help the other , but must leave some things to the conscience of the party himself . it is reported , . e. . . and . e. . . yeare book , that the lord chancellor , and judges were of opinion that a subpoena lyeth not against the heire of a feoffee in trust ; but our time affordeth that help against executors very commonly , as between ouslowe and ouslowe , lord norris and lester , cutting and huckford , &c. at the common law , if a man were surety for anothers debt , he was chargeable if the debtor failed in payment ; but magna charta . cap. . ordereth that the pledge shall not be distrained , if the principall debtor be sufficient to pay ; this grew troublesome to the creditor , and therefore it fell in use that the pledge should bee bound as principall , and so by the common law he is chargeable notwithstanding the sufficiency of the principall ; neverthelesse it is now usuall in chancery to help this suerty against whatsoever default of the principall , if so be he will offer the principall debt and dammages ; but in my opinion he ought to finde here no other reliefe then the principall debtor should find , because he is not onely a principall by his own bond , but also was the cause , for which the money was lent , seeing that without him the principall had not been credited . and experience bewrayeth , that this favour to sureties breedeth contempt of bonds ; nihil est autem ( saith cicero ) quod vehementius remp. . continet quam fides , quae nulla esse poterit si non erit necessaria solutio rerum creditarum , fraudandi vero spe sublata , solvendi necessitas consequitur . but the case of the purchasor ( bona fide ) of land subject to a statute , or recognizance , is better then of such a surety ; and so is the case also of the heire of the recognizor , or obligor ; for though the land be charged in their hand with the debt , yet equity ought to relieve them touching any penalty , unlesse they be found in mora , &c. if a debtor will collude with some of his friends in fraud of his creditors ; and the friend breake trust with him , this court will not punish the breach ; yet greene and cotterells case to the contrary ( fraus non est fallere fallentem . ) but two doctors and i took order in such a case between woodford , and multon , mich. . and . eliz. by our report that the goods so conveyed in fraud , should be transferred to the benefit of the creditors . a. man was enfeoffed to the use of a woman sole which taketh an husband ; they both for money sell to b. the land which payeth it to the wife ; and she and her husband do pray the feoffee to make estate to b. afterwards her hu●band dyeth ; now by the chancellor and all the justices , she shall have aide against the first feoffee by subpoena , to satisfie her for the land ; and if the second feoffee were conusant , a subpoena shal be against him for the land , for all that the wife did during the coverture ( as they said ) shall be taken to be done for fear of the husband . e. . . subpoena fitz-harbert . . if a. sell land to b. for l. with confidence , that it shall be to the use of a. yet a. shall have no remedy here , because the bargain hath a consideration in it selfe . dyer per harpar . and such a consideration in an indenture of bargaine and sale seemeth not to be examinable except fraud be objected , because it is an estopell . lands be morgarged to a. and b. where a. onely payeth the money , and the intention was that b. should take nothing ; now b. shall be compelled to release to a. . eliz. a. willeth that b. shall sell his land to c. now c shall have a subpoe . against b. to compell him to sell the testators land unto him . h. . . pyers was bound in a statute to hawes , and ioan , for the behoof of ioan , and hawes released to pyers , whereupon she brought a subpoena against them both ; but pyers was discharged although he knew the confidence ; because it is permitted in such a case a man should help himselfe to be discharged of his bond , and the subp. stood against hawes , because he had deceived ioane , . e. . . a. tamen quae● . for it is no conscience to be a partaker in fraud ; therefore if my feoffee in use had made a feoffment unto one that knew of the use , the subpena did lye against them both , . e. . . and the case precedent kiked not the reporter . if an obligation be made to b. to the use of c. now b. shall be compelled here to sue upon that obligation , . e. . . if one executor will release a debt without the consent of his copartner , whereby the will cannot be performed , the releasor and the releasee shall be ordered therefore in chancery , . h. . . by the chancellor against the opinion of ●ineux . if a subpoena be brought against three executors , and one of them appeareth , he shall not be compelled to answer till they be driven to appear also , for they are but one , . e. . . by the chancellor . so if two copartners , or joynt tenants-joyne in a quare impedit , and the one will plead covenously , he shall be compelled here to joyn with the other in plea or presentment . and so if lands be severally given by one deed , to two men ; he which hath the deed shall be compelled here to shew it for the defence of the others title , . e. . . a. made a deed of feoffment to his own use to b. but gave no livery of seizin . a. dyeth , c. his heire bringeth a subpoena against b. but by morton master of the rolls , c. was denyed help here , because b. had nothing in the land ; and if he abate , there is remedy at the common law against him , . e. . . where certainty wanteth , the common law faileth , but yet help is to be found in chancery for it ; for if the queen grant to me the goods of a. that is attainted of felony , and i know not the certainty of them , yet shall i compell any man to whose possession any of them be come to make . inventory of them here , . h. . . cur. it is most usuall in chancery to demand evidence concerning the complainants lands , to which he maketh title , which are not in ch●sts , baggs , or boxes , and whereof he knoweth not the date , &c. and in that case the defendant made title to the lands , and justified the detaining of the evidences , for maintenance of his right ; whereupon it was ordered , that the complainant should bring an action for the land at the common law ; to which the defendant should plead in chiefe ; and that he for whom the verdict should passe , should also have his possession stalled here , . eliz. if a man have cause to demand land by action , and knoweth not the tenant of the land , by reason of the making of secret estates , it hath been lately used to draw them in by oath , to confesse the tenant ; but it is now doubted . a tenant in common , of a manor for long time , occupyed wholly by the other tenant in common , which knoweth not the quantity of the mannor , by reason the other hath also sold lands intermingled , had the sight of the court rolls , and writings of his companion , concerning onely the quantity of the mannor , but not concerning the sold lands , nor his title to the mannor , and the other was ordered also to shew the like on his part . capell and mym . . the chancery also giveth help for perfecting of things well meant , and upon good consideration . as if in a feoffment of lands for money the word heires be omitted in the deed , audeley chancellor , . h. . said that he would supply it . a man bought debts due upon obligations , and gave his own obligation for the money to be paid for them ; and because he had not ( quod pro quo ) but onely things in action , and the seller would not use action upon them for the benefit of the vendee ; it was ordered here by the assent of the judges thereto called , that the vendor should bring in the obligation to be cancelled , . h. . . but if a man pay money upon an obligation , or a statute that is single , the obligee , or counsee shall not be called hither to cancell it , though the other had no acquittance upon the payment made , . e. . b. les justices , and doctor and student . who said that a man shall have no ayde here to supply his folly : as if he pay a debt upon a single obligation or statute without taking acquittance . but robert stillington episcopus bathoum said that ( deus est pro●urator futurus . ) i thinke if money be paid upon a redemption of a morgage by indenture without taking an acquittance , the morgage shall bring in the indenture to be cancelled here . so if a man sell lands in two counties for money , and maketh livery in the one onely , he shall be compelled in conscience to perfect the assurance by another livery , doctor and student . for the contract faileth onely in a circumstance or ceremony . a lease is made of a house and woods , wherein it is covenanted , th●t the leassee shall have housboot and fireboot . by this it is implyed and meant that he shall not have any of the woods to any other purpose , but that they belong to the lessor ; and it is usuall to help him in the chancery , to them leaving sufficient for these boots . a messuage was demised ( cum pertinentiis ) onely but for that sundry lands had been occupyed therewith for the same rent ; and by the same words , the lord chancellor bromley by advice of the judges , ordered those lands should now passe also ; yet in law they do not passe as some justices hold . the lord north demised a mannor ( excepting the court baron ) and perquisites , &c. the exception was found void in law ; and the tenant lady dacres would not make suite to the court kept by the lord north . but the lord keeper puckering assisted with some judges , decreed her to make suite , for that it was plainly so intended . a man made a gift of his goods of intent to defraud his creditors , and yet continued the possession of them , and took sanctuary and dyed there ; now his executors having the goods , were charged towards the creditors , . e. . . so if a lessee for years demiseth parcell of the terme to another , and covenously forfeiteth his whole lease for any condition broken , and taketh the land back in lease againe , his lessee shall find help in chancery . crompton , . . and stillington the chancellor , . e. . . was of opinion that ( pro laesione fidei ) or breach of promise , a man was at liberty to sue either in the spirituall court ( canonicae injuria ) or else in the chancery for the damage accrewed by the breach . a man had lands of ancient de●neasne in extent for debt , and they were recovered from him by the sufferance of the vouchee , whereby he was ousted ; in this case he shall be holpen here . morton chancellor per assent . bryan , and hussey justices , . h. . . if one that is bound with another for the debt of the other payeth it at the day for fear of arrest ; now if he sue his counter-bond which he hath to save him harmelesse ( non est damnificatus ) is a good plea at the common law against it ; but yet the chancery will give order for his repayment . mich. . . eliz. and whereas such a surety paid the debt , and sued the principal upon his obligation to save him harmlesse ; the principall brought a subpoena , and alleadging that he having delivered goods into the hands of the surety to save him harmlesse , prayed an injunction to stay his suite ; but because the surety made another title to the goods , the court would not stay the suit for him , . e. . . where deeds and mynuments do concern as well the defence of the tenant for life , his title who also possesseth the deeds , as the right of another in reversion or remainder , it is usuall to have them brought into this court for the avoyding all perils , and the indifferent custody of them , dixies and hillary , . eliz. a lease is made for life , the remainder for life ; the remainder over in fee ; the first lessee maketh waste ; and because he in the fee hath no remedy by the common law , and waste is a wrong prohibited , he shall be holpen in chancery , crompton , . . and not every barre or stopell in law ought also to bind in chancery : for if a legitimate daughter , and her sister a bastard do joyne in suing of their livery , this ought not to barre in conscience , howsoever it may estop in law , doctor and student . it is usuall in a bill of chancery ro object , that the case hath proper help at the common law , and . h. . . where one assumed for l. to lands to another . it was said he might have action upon his case ; and not to sue in chancery to compell him to make the estate ; but these helps be divers , and not the same ; for by the one he seeketh the land ; and by the other he demandeth damages onely . and therefore i see not , but that the petition in parliament might have prevailed , if it had stood upon that point onely ; and at this day , it is taken for a good cause of dismission in most causes , to say that he hath remedy at the common law ; and where an action upon the case for a nusans and damages onely are to be recovered , the party may have help here to remove or restore the thing it selfe , quod est idem . a leassed lands for . years , and let other lands at twill to b. that had lands in the same town , who makes a lease for life to c. of his own lands , and of a ▪ s. and then by fine all is conveyed to b. he payes the rent to a. still the five years passe by the opinion of all the judges delivered to the lord keeper ; this fine shall not bar a. quia apparet per le payment del rent and cest case fit subscribe per popham & andersan . . feb. . . eliz. nota que executor non poit estre a trust unlesse he have an especiall gift in the will , and that may then be in trust , otherwise the generall trust of an executor is to pay debts and legacies ; and of the surplusage to account to the ordinary in pios usus , . eliz. . iunii . a woman sole takes consideration for making a lease for . yeares and then marries ; and she and her husband made the promissed lease at the . yeares end , the lessee surrenders and takes a new lease for years more , the husband dyes , the wife oustes the lessee , who sues in chancery to have the first lease continued rest for the first yeares , and not remedyed here , the surrender being voluntary , . eliz. two joynt-tenants , the one takes the whole profits , no remedy for the other , except it were done by agreement , or promise of account , . iunii . . eliz. a defē ▪ not being a principall defendant , might be read at a witnesse , if he were examined on the plaintants party in another suit , betweene other persons , in case of kingston upon thames , . iunii . . eliz. a custome of discent in a mannor , and many other things were in controversie between the lord and tenants , and between the tenants themselves . and in the tenth eliz. a generall agreement made by deed indented , and a bill in chancery for establishing the same , but no record to be found but the deed inrolled , though all the tenants of the said mannor shall be stopped in the chancery to speak against this , ( cac . est quae le repes del realme ) notwithstanding pretence was made ( philips being of councell with the defendants , that agreement cannot alter a custome in law , that some were infants , some ●eme coverts at the time that the lord was but tenant in taile ; of which opinion was mr. cooke attorney generall , and justice gawdy , . iunii . . eliz. if a statute be acknowledged in my name by a stranger , i shall have an action of disceat against him , but i shall not avoid the statute or recognizance ; but if it be acknowledged by one of the same name with me , i shall avoyd it by plea . . iunii . . eliz. the opinion of the courts is , that uses may be raised by covenant for jointures , but power to make leasses in that sort cannot passe , but it may be done by fine , or transmutation of possession , if the covenant be that the owner will stand seize to those uses , . iun. . . eliz. whether copyholders may be intailed , and held that they may not by the statute ( de donis conditionalibus , ) but by the common law denante ; and that surrenders , or plaints in nature of fines and recoveries may bar these state tayles , as well in the court baron , as at the common law , if the custome have been such , which is the rule in these cases , . feb. . . eliz. administrators in nature of a guardian to an infant being executor , exhibits on his behalfe a bill in chancery ; the infant ( depending the suit ) comes of full age ; this abates not the bill by the opinion of the lord chancellor egerton , feb. . . eliz. doctor ford by his will devised certaine lands to his wife in these words ( non per viam fidei cōmiss●● ) for which his sonne might sue her ; but hoping if his son grew thrifty , that at her death she would leave the remnant of these leases to him , she married greysill ; but before marriage greysill wrote unto her , that she should have the disposing of those leases at her death ; after the marriage greysill sells the leases ; ford brings his suite in chancery , and had no help by the opinion of the court , . maii . iacob . . inter tomley and clench , it appeared by testimony of ancient witnesses , speaking of years before , and account books and other writings , that francis vaughan , from whom tomley claimed was mulier ; and anthony from whom clench claimeth was a bastard ; and the possession had gone with tomley yeeres . in this case the lord egerton not onely decreed the possession with tomley , but ordered also that clench should not have any tryall at the common law for his right , till he had shewed better matter in the chancery , being a thing so long past ; it rested not properly in notice de pais , but to be discerned by books and deeds , of which the court was better able to judge then a jury of plough-men , notwithstanding that exceptions were alleadged against those ancient writings ; and that for the copyhold-land , the verdict went with clench upon evidence given three dayes before serjeant williams , that anthony was mulier , . maii. . iacob . . sir edmond morgan married the widdow of fortescuhe , had his wives lands distrained alone by the grantee of a rent-charge from her former husband , and therefore sued the grantee in chancery , to take a ratable part of the rent , according to the lands he held subject to the distresse ; and notwithstanding the lord chiefe justice pophams report , who thought this reasonable , the lord chancellor egerton will give him on this bill no reliefe , but ordered that he should exhibit his bill against the rest of the tenants and grantee both , the one to shew cause why they should not contribute , the other why he should not accept of the rent equally ; otherwise it was no reason to take away the benefit of distresse from the grantee , which the law gave him . iunii iacobi . . a. in forma pauperis had a decree against c. for the mannor of b. that the contents of the mannor were doubtfull . c. shewing antient deeds , that proved divers parcels of the lands , claimed by force of the decree by a. to be of another mannor , which notwithstanding the lord chancellor egerton ordered that it should be put to a jury ▪ and they to find as the contents of the manor had gone by usuall reputation . years last ; and not to have it paired , and defalked by such ancient deeds . a. married a feme executrix subject to a devastavit ; if a. have nor sufficient to satisfie , himself shall be imprisoned for the debt . a. plaintant in chancery for a lease upon a bill , that affirmed the lease to end at our lady day , an. . had the same decreed for him ; many yeers after comming to the lease it selfe he finds , that it is not to end till our lady , an. . and then moves in chancery , that he may not be forced to leave the land , till that time as the decree appointed him ( qui constitutus est cancel●arius , . iulii ad coronam regis ) for the first he must performe the decree ; and then exhibit a new bill upon the speciall matter , otherwise it were perilous to blow away decrees upon motions . hil. . iacobi . gosset com . crowther , fol. . henry earl of darby conveyed certaine lands in trust , to doughty his servant for payment of his debts , upon mediation of an end of controversies between the daughters of fardinand , eldest son of henry , and will . his younger son now earl . articles were set down , that will . should discharge all his fathers debts , whereupon doughty conveyed the leases to will . the creditors sue doughty in chancery ; and ordered to pursue their remedy against earl william . hill. . iacobi . hearle plaintant in chancery against bot●lers mo●ther and son , whose husband had bought tayled lands of hearles brother , to which the plaintant was inheritable ; and some of the money due upon a bond unpaid , and the bond lost . and the opinion of the lord chancellor was to charge the son & the mother , in regard of the land in their possession , with the payment thereof . hil. , iac. nota in le case mynn and cobb , the trust was not so fully proved as the lord chancellor would make a full decree thereupon , so as it should be a presedent for other causes , and yet so farre forth proved as it satisfied him as a private man ; and therefore in this case , he thought fit to write his letters to the defendant , to conforme himselfe to reason ; and affirmed that if he should find the defendant obstinate , then would he rule this cause specially against the defendant , sans la tires consequence . hill. . iacobi . nota in the case of manwood , that there behoveth not a full surrender to be expressed in the copy , but the devise is chiefely to be regarded if the surrender be perfect in the roll of the lord , though there be no mention at all of a surrender good enough ▪ hill. . iacobi . inter swain and rogers , the case was in effect an assize of nusans , for rogers disturning the trenches , and plucking up of stakes of swaynes mill leet ; and making a banck , or dam beneath , that made the water reflow so as the wheeles could not goe ; and exception taken that the court should not hold plea thereof ( sed contrarium adjudicatur ) many causes of the same manner ended here ; and this specially for rogers a great man in the country , swayne a professor of the law , who sought hereby to avoyd multiplicity of suits per warburton justice , but upon a second hearing at the rolls , referred to a commission of sewers . hill. . iacobi . nota per egerton chancellor , where tenant for life , the remainder for life , though there lye no action of waste in chancery , yet he shall be prohibited to do waste by the chancellor , for wrong to the inhabitants , and hurt to the common-wealth . hill. . iacobi . bloomer having married the widdow of nanfan , who had forfeited a recognizance to the archbishop of canterbury , for not paying of her daughters portion , intreated the bishop of canterbury , to take a new recognizance , and discharge the former . bloomer after finding that his wives lands was intailed , used meanes to have her by fine , or recovery , to put it into fee , that so it might be subject to the recognizance ; and hoped to get it from his wife also . one bridges his wives kinsman withstood this ; now dyeth the woman , the portion unpaid ; bloomer is sued for it in chancery ; and the opinion of the court against him ; the bishop of canterbury had certified against him ; and because his counsell was not ready that day , the chancellor declared he must take the archbishops certificate , not as a testimony , but as a judiciall proceeding ; and therefore willed bloomer to satisfie the archbishop , or else he must decree against him . hill. . iacobi . nota that witnesses ad informand . conscientiam , shall never be appointed to be taken but upon hearing ( ubi iudex dubitat ) but yet witnesses examined after publication not fit to be published , may be fit to be ad informandum conscientiam , if it shall be thought meet upon the hearing . hill. . l. daniel hill having put in for his clyent a long insufficient demurrer to a bill exhibited against his clyent , in which supposed demurrer were many matters of fact , and other things frivolous and vaine , the lord chancellor egerton awarded five pound costs against the party . and ordered that neither bill , answer , demurrer , nor any other plea should from henceforth be received under the hand of the said hill . . april . . iacobi . in the case of tenant right , between musgrave and some of his tenants on the borders , the lord chancellor pronounced , that neither in tenant right , nor in other coppyholds would he make any order for all the tenants in generality , but for speciall men in speciall cases , nor for any longer time then the present , except it were by agreement between the lord and the tenants , which then he would decree if it appeared reasonable . . iunii . . iacobi . item that he neither would help leases paroll in chancery ; and that it was good for the common-wealth , if no lease paroll were allowed by the law , nor promises to be proved by witnesses considering the plenty of witnesses now a dayes , which were testes diabolices qui magis fame quam fama moventur . . iunii . iacobi . lands given ad divina celebranda by feoffement , till an estate should be made by the feoffees of them , for founding a chauntry , and this in the . of h. . and held no superstitious use , nor by the lord chancellor , if it had been absolutely given ad divina celebranda and for saying of obites , for most part of the churches of england are so founded ; if it be granted to a priest ; contra , if it be granted to a particular priest ad divina celebranda and saying obites , &c. the case was that those lands were after given to found a chappell of ease by the feoffees ; and then new come in upon the first grant , would have had it a concealement , and got a pattent thereof , and commissioners upon the statute , . eliz. took it from the pattentee . and note that the commissioners make the decree ; the lord chancellor heareth the exceptions against the said decree , and decreed the possession according to the commissioners decree , leaving the pattentee to exhibite his bill against the parishioners , and to shew what cause he could for reversing thereof , . iunii . iacob . george littleton of the inner temple , lent money upon bonds taken in other mens names and had not any in his own name ; among the rest he purchased five markes per annum in two other mens names , with this trust , that he might injoy it during his life , and after it should be to the erecting of a schoole in the towne where the said george was born and buryed , as the feoffees declared in their answer ; and in his life time after the purchase he repealed his intent of converting the same to the use of the schoole to divers others , but by his will he gave certaine acres of land to i. c. and i. h. and then devised all the rest of his lands to his brothers sonne , who sues ceux que trust for converting unto him the five marke land , which justice warberton presently decreed for him , saying his will was his declaration . but in his words there was but a meaning onely exprest ( me contradicente ) for if i. c. make a feoffement to the use over according to articles annexed , he cannot alter the same by a later will . contra , if it be to the use of his will . iunii . iacobi . cutting cleark of the outlawries bought lands of bedwell , whereof he was seized as tenant by curtesie , promising the heire should assure at full age ; and by morgage assured other lands for performance thereof . cutting before full age dyeth without issue his heire not known , for some claimeth as h●ire on the fathers side , some as heire on the mothers side , others as assignees , by devise ; and another as executor sued a statute for performance of covenants ; bedwell being willing to assure , brought all into the chancery , that he might incurre no prejudice till he should know to whom he should assure ; and ordered that he should assure to two of the six clarks , they to reassure to the heire when he should be found . . octob. . iacobi . nota that the lord chancellor egerton in the case of pigot , that if a power be reserved to make leases by a covenant without transmutation of possession , the chancery shall not help , because the first is void in law , if upon transmutation of possession , and the power be not precisely followed , that doubtfull and rather most strong against help ; for then the estate workes and the power gone ; and upon wills no help ; causa patet antea , fol. . and difference inter will and testament , testament requires executors , will of lands . . octob. . iacobi . young purchased lands in the name of one mason to the use of him and his heires , dying without declaring any setled determination of this trust or confidence ; dethicke a kinsman procures mason to convey the lands to him , and he conveyes it over to infants , mericke a nearer kinsman sues in chancery as next heire , if the benefit of the trust appear to appertain to mericke , notwithstanding the conveyance to infants being decreed for them , they shall hold by the decree during the minority . and a proviso for the infants to assure at full age , per cook attorney veniendo de westm ; and there appearing no certain disposing thereof , it was ordered that mason should repay the money he had for making the conveyance to dethicke , and merick to have the lands ordered for him . . octob. . iacobi . those who are curious to have the defendants to amend their answers , ordered first by the lord chancellor to put in sureties in court , for proof of the contents of their bills according to the statute , . h. . or iuramentum calumniae were better perchance . . novemb. . iacobi . commission to examine witnesses , went out to sir a●exander brett and others , who made certificate against sir alexander of partiall proceedings ; philipps serjeant moved at the rolls for a commission to others to examine in whom the misdemeanor was , in sir alexander , or in the certifyers , & fuit negatum , for such collaterall certificates are not required of the commissioners , but let them certifie the matters committed to their charge ; and if there be misdemeanor , let the party wronged thereby make affidavit thereof ; and then take out his attachment . . novemb. . iacobi . a release was offered to be deposed , that it had been seene by some at the barre , it being affirmed that by casuall meanes it was lost ; but the lord chancellor said the oath should be that he saw it sealed and delivered ; and not that he saw it after it was a deed : for in munson the justice his case , a deed was brought into the chancery and a vidimus upon it , being but a counterfeit copy ; and after the fraud discovered , and the true deed produced , therefore none allowance to be given of a deed , without producing the deed , or proving the execution thereof ; and here appeareth what want we have of notaries and their deputies . . novemb. . iacobi . the deane and chapter of bristoll made sundry leases misreciting the name of their corporation , and an intricate case of sundry such leases made of one thing to divers men ; wherein the lord chancellor said , that it was fit to help such leases in chancery , being for reasonable time , and upon good consideration ; contra , of long leases , without consideration of fine or good rent ; and that judges might have done well at the first to have expounded the law so , with averment that they were the same parties , and so was the old law till now of late , especially where the mistaking rose on their part , who had the keeping of the evidences , the which the leases could not see , but must take a lease by the colledge clark , in a writ where you may have a new , no harme to abate it for a misnomer ; and yet in that case sometimes in old times an averment of comer per lieu nosme & ● auter , where they were sued by others , and not named so by themselves . . novemb. . iacobi . haule had a dutchy lease gotten upon untrue surmises ; and the king bestowed the land upon the earl of devon , for his service done in ireland . this lease the earl sought to avoid by the law ; haule prayes to have the matter examined in chancery , and to have the suit stayed by injunction which was denyed , for that the lease was granted by fraud , and the fee simple to the earl in possession and not in reversion & nota , that the lord chancellor said , that where lands are granted in reversion , if the grantee will avoid the lease for a rent paid , but not at the day , in that case he will releeve , but not where the lease is granted upon a false suggestion , for that were to relieve fraud in the chancery , it was further objected , that this grant was made to the earl upon consideration of service done ; and the lord chancellor said , that the service done to the realme was as valuable , as if the earl had given l. for the land , but the earl offered to give the leassee l. recompence in honour . . ian. . iacobi . in a case moved by mr. chamberlaine , where the lord chancellor had referred the matter to be tryed at the common law touching remainders upon a lease whether good in law or no , and the judges had given judgement upon the case in another point in the kings bench , so as the lord chancellor remained still uncertaine of that point , called the judges into the exchequer chamber . . iacobi . for as much as the plaintant hath served processe upon the defendant to appear in this court return . micha . and exhibited no sufficient bill against him , and further for meere examination , sued out a writ of attachment against the defendant , before the returne of the subpoena ; it is ordered that the plaintant shall pay unto the defendant s. costs ; and also that hugh tildesley , who made the processe against the defendant without a sufficient bill , shall pay unto the defendant other s. for his costs ; william garneston plaintant , thomas bradwell defendant . anno . hen. . philip and mary fol. . for as much as a commission to examine witnesses in perpetuam rei memoriam , issued out of this court , and the witnesses examined by vertue thereof , have remained in court by the space of a year ; it is ordered that publication shall be granted richard gravenor , and iohn gravenor plaintants , bryan brearton defendant . an. . and . phil. and m. fol. . episcopu cicestrens . publication of witnesses in perpetuam rei memoriam . an. . and . phil. and mar. fol. . willington plaintant , agar defendant , publication of witnesses remaining since . h. . fol. . anno , and . phil. and mary . an injunction is granted against the defendants to deliver to the plaintant certaine plate contained in their petition , or else to appeare and shew cause in crur. anim . prox . anno . and . p. and m. fol. . david geoffry , and iohn geoffry plaintants , and thomas davis defendant . a decree is made for the plaintant , as by the record thereof signed with the lord chancellors hand plainly appeareth ; and the said record is delivered to iohn millisent attorney for the plaintant to be inrolled , the deane and chapter of lincolne plaintant , bevore and alice defendants . anno . and . phil. and mary fol. . glanffell plaintant , strickley defendant , a decree is made for the defendant for dismission of the cause , as by the record thereof signed with the lord chancellors hand ; and the same put to the inrolment . anno . and . phil. and mary fol. . iames iervis hath made oath for the delivery of a subpoena to the defendant , whereby he hath knowledge that witnesses are to be examined in perpetuall memory ; so that he may if he will examine the same witnesses in this court ; therefore the examinors in this court may proceed to the examination of the said witnesses accordingly ; hatcham plaintiffe , winchcombe defendant . . and . p. and m. fol. . porter plaintant , baker defendant , the examinor may proceed to examination of witnesses in perpetuall memory ; if the plaintant have served a subpoena upon the defendant , to give him notice to examine likewise . an. . and . p. and m. fol. . forasmuch as the plaint hath taken oath in this court , that there are sundry witnesses contained in a schedule exhibited in this court , which he desireth to have examined ●n perpetuall memory , so impotent and sick , that they are not able to travell up to be examined in court , without danger of their lives ; therefore a commission is awarded to sir humfrey b●adburne knight , to examine the same witnesses in perpetuall memory , bagshawe plaintant , defendant . an . and . p. and m. fol. . robins plaintant , foster defendant , a commission is granted to examine witnesses in the countrey , being impotent , in perpetuall memory . anno . and . p. and m. fol. . the plaintant is adjudged to pay to the defendant costs three pound , for that he was served to appear before the lord mayor of london to testifie in a matter depending before the said lord mayor , between the plaintant , and one iohn gresham , and others without any precept directed from the lord mayor , unto the said defendant to appeare ; rowe and alice plaintants , thomas guybone defendant . anno . and . p. and m. fol. . iohn manlye hath taken oath , the deposition of witnesses examined on the behalfe of the plaintant , and remaining in this court , are to be given in evidence at a court baron holden at potton in the county of bedford on m●nday next ; therefore publication is granted , william manlye clerke plaintant , thomas simcote defendant . anno . and . phil. and mary . fol. . an injunction is awarded against the defendant , to stay his proceedings in the sheriffes court of london , or elsewhere upon debt of l. not to proceed to triall , judgement , or to execution , if judgement be given . iohn ayland plaintiffe , francis bacon defendant . anno . and . p. and m. fol. . forasmuch as the plaintant served processe upon the defendent , by the name of magaret hastings , and at that instant was marryed to william brown ; and also for want of a bill , therefore the said william brown , and margaret are adjudged to pay to the defendant s. costs , margaret hastings plaintant , nicholas iugges defendant . anno . and . p. and m. fol. . forasmuch as the sheriffe of den●igb hath returned a languidus in prison , therefore a commission is awarded to richard griffeths and others , to take the answer of the defendant , iohn ap thomas plaintant , engharard hoell widow defendant . an. . and . . p. and m. fol. . forasmuch as the defendant was in possession of the lands at the time of the bill exhibited ; and the plaintant hath sithence entered , therefore an injunction is granted to the defendant against the plaintiffe , to avoid the possession . william hawkes , and ie●nit his wife plaintants , iohn champion and others defendants . an. . and . p. and m. fol. . it is ordered the plaintant shall between this and friday next , bring into this court a certificate from the officers of the queens house , or otherwise ; whereby this court may credibly understand , that his attendance in court is necessary and that he cannot conveniently be absent , or if he cannot so doe , then the matter is remitted to the determination of the commissioners in the marches of wales . phillip mannering plaintant , henry smallwood , and alice defendants . anno . eliz. fol. . mannering plaintant , smallwood and alice defendants for want of a certificate , that the plaintants attendance in court is necessary , the cause is dismissed into the marches of wales . anno . eliz. fol. . the plaintants husband was bound in a statute of l. to pay l. and after by indenture the defendant did grant unto the plaintants husband , that if he failed in the payment of the said l. the same should be levyed of certaine lands then the said plaintants husbands lands called stirbeck , and some other lands specially named lying in hawthorne in the county of lincolne ; the husband dyed , and the defendant sued execution as well of other lands in the occupation of the plaintants late husband , as of the said lands mentioned in the indenture . and sir nicholas bacon , lord keeper of the great seale of england , granted an injunction against the defendant immediately to remove from the possession of all the other lands , except of those onely contained in the indenture ; and that he should quietly suffer the plaintant to enjoy the same , margaret pulvertost widdow plaintant , and gilbert pulvertost defendant . anno . eliz. fol. . an injunction was granted to the plaintant , upon the surmises of his bill , with this clause ( si ita sit ) that the plaintant be in possession by good conveyance in law as he alleadgeth , nota it was then usuall to grant injunctions upon surmises with a proviso ( si ita sit ) fodringham christopherus plaintant , richard chomeley defendant . anno . eliz. fol. . forasmuch as the defendant is under age , and by inspection not above the age of fifteen yeers ; therefore george wyat is by this court named , and appointed gardian to the defendant , hugh langley plaintant , and philip mark defendant . anno . eliz. fol. . a commission is awarded to the sheriffe of nottingham ▪ and ●erby , to put the plaintant in possession of certain lands , for which he formerly had an injunction against the defendants , which they have disobeyed , william boles plaintant , richard walley and alice defendants . anno . eliz. fol. . the defendant is enjoyned in open court upon paine of l. not to proceed any further in an action , upon the case by him commenced in the kings bench against the plaintant , nor that he procure the jury to be sworne in the issue , but onely to record their appearance untill to morrow , at which time further order shall be taken by the court , george riche plaintant , edmond foard defendant . anno . eliz. fol. . upon information the defendant disobeyed a writ of subpoena brought to be served against her ; and that they which should have served the said writ , were beaten and wounded , therefore an attachment was granted against the defendant ; and a subpoena against edmond pirton returned immediate , william rove , and rose his wife plaintants , agnes west widdow defendant . anno . eliz. fol. . and . where the said edward pyke hath of long time been , a●d yet is in execution upon a statute , at the suite of the late king edward the . forasmuch as upon the examination of the matter befo●e the lord keeper of the great seale of england in open court , it manifestly appeareth that there was not just cause , why the said pyke should remaine in execution , as g●lbert gerrard , and rosewell esquire , the queenes majesties attorney , and solliciter generall being present did confesse and agree ; it is therefore now ordered , that a writ of supersedeas be directed to the warden of the fleet , in whose custody the said pyke now is , commanding him by the same forthwith upon the receipt thereof , to deliver out of prison the body of the said plaintant , provided alwayes before his deliverance he be bound to her majesty by recognizance in l. not onely to make his further appearance to answer her highnesse any thing hereafter shall happen to be laid to his charge concerning the said execution ; but also to stand to , and obey all such order and determination as the said lord keeper of the great seale and this court shall hereafter take in the matter in variance between him and the said graunt , edward pyke plaintant , robert graunt defendant . anno . eliz. fol. . pakine the husband onely appeared , and put in a demurrer in both their names without oath of impotency , or otherwise for non appearance of ioan his wife ; whereupon an attachment is awarded against the defendants , thomas spicer and katherine his wise plaintants , iohn pakine and ioan● his wife defendants . an. . eliz. fol. . thomas hodge plaintant , william smith defendant ; the defendant demurred by his counsell not appearing in person , therefore a subpoena was awarded against him to make a direct answer . an. . eliz. fol. . iohn iackson attorney for the defendant at the common law is in open court enjoyned , that neither he , nor any other by his means do further proceed in an action of tresp . commenced against the plaint . and depending at the cōmon law , nor call for judgement , untill further order shall be therein taken by the lord keeper of the great seale of england , and high court of chancery , iohn sedgewick and alice plaintants , will . redman defendant . an. . eliz. fol. . the plaintant served the defendant with a subpoena to appear in chancery , whereof he made oath , and because the defendant did not appear , and injunction was awarded against the defendant , his councellors and attorneyes , upon paine of l. not to proceed in judgement in an action of debt of l. in the common pleas against the defendant . an. . eliz. fol . thomas knot plaintant , thomas iackson defendant . david eyre was served with a subpoena ad testificandum for the plaintant in a cause depending in this court , and thomas eyre made oath , that the said david eyre was , at the serving of the said subpoena upon him , and yet is , so sick , that he is not able to travell hither to testifie ; therefore a commission is granted to such commissioners as the plaintant will nominate to examine him , iohn wade plaintanr , gwye and alice defendant . an. . eliz. fol. . an attachment was awarded against the defendant for his not appearance upon oath , he was served with a subpoena , who now appeared gratis , and would have excused himselfe , that he had no notice of the subpoena , but he that served the subpoena , deposed he did hang the same upon the defendants doore , and within halfe an houre after , saw him abroad with a writ in his hand , which he supposed to be the subpoena ; therefore he is committed to the prison of the fleet , bernard richers plaintant , tho. stilman defendant . an. . eliz. fo. . the defendant was served with a subpoena the day of the return ; and for his not appearance an attachment was awarded against him , and upon oath , that he was served sixscore miles of , so as hee could by no possibility appeare , therefore a commission is awarded to take their answers in the countrey , paying the plaintant s. p , for his costs ; henry george plaintant , henry bolington , and ioane deane defendants , fol. . an injunction is granted to discharge an execution by elegit taken by the defendant out of this court , for that he being served with a subpoena did not appear , william hobby plaintant , francis kemp defendant . anno . eliz. . the plaintant served one rolfe with a subpoena ad testificandum , and after he was served before he could be examined , rolfe was pressed for a souldier ; upon oath made hereof attachment was stayed , richard humble and anne his wife plaintants , william malbe defendant . anno eliz. fol. . the plaintant sets forth by his bill that where there was a suit depending in the dutchie court , between the defendant and christopher aschugh his brother for certaine lands ; it was agreed , and the plaintant was bound to the defendat in l. that the said christopher should become bound by obligation in the sum of l. the tenth day of iune following ; and should then also make unto him a release ; and the defendant was also bound by obligation in l. to pay the said christopher a sum of money the . of iune in the parish church of da●e . and because both the dayes of performance of the conditions of the said severall obligations were so neer together , therefore it was agreed , that when the defendant paid his money , the said christopher should make his bond and release ; and sheweth that the . day of iune , the defendant came not himselfe , but sent his servant to pay the money ; and christopher was there ready to make the bond & release to the defendant , and offered to deliver the same to the defendants servants , but they refused to accept thereof ; and afterward the said christopher offered the same to the defendant , but he likewise refused to receive the same ; and yet puts the plaintants bond of l. in suite in the kings bench ; hereupon an injunction is granted with a clause ( si ita sit ) to stay all further prosecution of any action , in any the queenes courts at the common law , or else where , upon the bond of l. against the plaintant ; and also the taking of any nisi prius , or judgement , or execution upon judgement , if judgement be already given upon the same bond , untill the defendant have made a perfect answer , and the court take other order , aschughe plaintant , skelton defendant . anno . eliz. fol. . and . a commission is awarded to thomas ward , one of the examinors of this court of chance●y , for the examining of witnesses in perpetuall memory , in which commission the defendants may examine if they thinke good , barentine plaintant , harbert and alice defendants . anno . eliz. fol. . the defendant was bound by recognizance to the chamberlaine of london for payment of divers sums of money for orphan● portions ; and departed out of the city , and dwelt in oxford shire , leaving no estate behinde him in the city , so as the processe of the city cannot take hold ; therefore a subpoena is granted against him upon pain of l. to appeare before the major , and aldermen , and to stand to their order : major and aldermen of london plaintants , iohn dormer defendant . anno . eliz. fol. . afterwards fol. . ordered , if he doe not appeare , an attachment is granted . sr humphrey brown knight one of the judges of the common pleas is plaintant against the defendant ; and an order is made for bringing in and delivery into the court of certaine evidences , sir humphrey browne knight plaintant , thomas smith defendant . anno . eliz. fol. . nota that dismissions were entred at large , anno. . eliz. fol. . and fol. . a decree was entred at large in the registers booke ; which be the first i finde entred at large in that kind , and so after divers others . the defendant appeared upon a subpaena , and answered the plaintants bill ; and after attended upon the lord keeper , for a matter in controversie between him and one ellin w●yne , and in the meane time being arrested in london , at the suite of one anthony brisket , contrary to the order and priviledge of this court ; it is therefore ordered , that a subpoena of priviledge be granted to the major and sheriffes of london for the discharge of the said arrest , rich. dutton plaint . will. alersey defend . an. . eliz. f. . forasmuch as thomas harbert sheriffe of monmouthshire , hath returned non est inventus upon an attachment awarded against roger williams who is a justice of peace , and as is informed , was at the last quarter sessions holden for the same county ; therefore the sheriffe is amercyed five pound , sir thomas stradling knight plaintant , william earl of pembrooke defendant . an. . eliz. fol. . the defendants attorney at law , was enjoyned to stay his proceedings at law against the plaintant in an action of trespasse . and notwithstanding this , the defendant himselfe proceeded and got judgement , and took out alevari facias against the plaintant , and an injunction was granted against the defendant himselfe , to stay the execution of the same writ of levari facias , or if he had executed it , and levyed the dammage and costs , that then he should bring all the money thereupon received into the court of chancery in crastina ascensionis domini , to be disposed of as the court shall think fit , and yet notwithstanding himselfe should be then present in court to answer the contempt , iohn segewick plaintant , william redman defend . an. . eliz. fol. . the defendant was in possession at the time of the bill exhibited and the plaintant entred upon him after the bill , therefore an injunction for the defendant against the plaintant , william dowche plaintant , iohn perrot . defendant . an. . eliz. fol. . an injunction was granted against the defend . upon paine of l. that he should not prosecute an action of debt of l. or any writ of nisi prius , jury , judgement , or execution of judgement , if judgement be given before the justices of either bench , untill speciall licence be given by this court , thomas stanebridge plaintant , thomas hales defendant . an. . eliz. fol. . forasmuch as it is informed the tryall of the truth of the matter resteth altogether in the declaration of the defendant ; it is therefore ordered that the defendant shall be examined upon interrogatories to be ministred by the plaintant , upon whose examination if the matter fall not out for the plaintant , then the plaintaint to pay the defendant costs , and the cause to be dismissed , iohn fyfield plaintant , iohn vinore and alice defendants . an. . eliz. fol. . the plaintant at the day appointed for hearing appeared not , therefore the defendant is dismissed with costs , richard fincham plaintant , william backwood defendant . an. . eliz. f. . the defendant notwithstanding an injunction delivered unto him , got a judgement upon an action of debt in the common pleas ; and decreed upon the hearing of the cause that the defendant shall within . dayes next after the decree resort to the record in the common pleas , whereupon the said judgement is entered , and there to confesse of record a full satisfaction of the said judgement . nota the action of debt in the common pleas was for not delivering to the defendant a statute , which by the depositions of witnesses , appeared to be delivered , and by the clarke of the staples cerficate , the record was discharged , nicholas colverwell plaintant , ralph bongey defendant . anno . eliz. fol. . it is decreed the plaintant his heires and assignes , and his or their farmors of the said farme or tenement called stubles , shall from henceforth hold and enjoy as appendant to the same farme or tenement called stubles , all the same fould course , or common of pasture , for the full number of sheep within the said fields of wentforth alias wentford , basill fielding and alice plaintants , thomas wren defendant . anno . eliz. fol. . and . the plaintant exhibited his bill thereby shewing that there is question and controversie between two defendants , for the reversion of the mannor of aldwell , which he holdeth for yeares by lease , made thereof to him by one anthony marmyon , and that he doth not know to which of them the rent and reversion is due , and therefore desireth , that upon payment of his rent into this court according to the covenants and articles of his lease he may be discharged , & saved harmelesse from molestation , suite , and trouble for the same rents by the defendants or either of them ; wherefore it is ordered an injunction be awarded against the defendants , not to molest the plaintant for his said rent during the said contention , so as the plaintant pay his rent into this court , iohn alnete plaintant , christopher bettam , and edmond marmyon defendants . anno . eliz. fol. . upon hearing of the matter , three witnesses examined by commission did in open court depose , that the commissioners have set downe their depositions otherwise then they did depose ; therefore it is ordered those depositions shall be void , and the same witnesses shall be examined again , iohn peacock plaintant , edward collens defendant . anno . eliz. fol. . for that the court was credibly informed , the plaintant was in peaceable possession at the time of the bill exhibited , and three yeares before , an injunction is awarded , iohn sapcote plaintant , william newport defendant . anno . eliz. fol. . the suite was concerning the custome of tenant right for lands in dent in the county of yorke ; and for that both parties confessed , that justice dallison , and serjeant rastall justices of assizes in that county had made an award in the cause between the parties , therefore it was decreed that both parties should performe it ; and an injunction is granted to either party against the other for that purpose ; and where an injunction was the last terme granted against the defendant , for stay of execution upon a judgement in the common pleas ; it is ordered the said injunction shall stand in force , and the defendant shall obey the same , and the defendant shall answer the plaintants bill , william burtet , and alice plaintants , william redman defendant . an. . eliz. fol. . it is ordere● the injunction formerly granted the defendant , for stay of his action in the kings bench be dissolved , and the defendant to be at liberty , to take judgement upon his action of bebt of l. provided if the plaintant doe bring into court on munday next , l. then execution for the rest is to be suspended untill this court take other order ; thomas stanebridge plaintant , thomas hales defendant . an. . eliz. fol. . the plaintant exhibited his bill in this court , and before the defendant answered , had a commission to examine his witnesses , upon pretence the witnesses were old and in danger to dye ; sir radnus bagnold , miles plaintant , greene defendant . an. . eliz. fol. . the defendant first exhibited her bill in this court for land conveyed to her in joynture , and evidences of the same land , and after did molest the same plaintant by distresses , after answer and replication put into this court , therefore an injunction is granted ; richard kidnere plaintant , agnes harrison defendant . an. . eliz. fol. . the plaintant setteth forth , that his father and he are joyntly seized for life of the lordship of barrington in the county palatine of durham ; and that the defendant sues his father for those lands before the chancellor of durham , and for that it was informed that the plaintant dwelleth in ratcliffe , in the county of middlesex ; and that the plaintants father is an old diseased man , and not able to follow his suite ; therefore a certiorare is granted , directed to the chancellor of durham , to certifie into this court the whole matter depending before him , william hilton and alice plaintants , r●●●rt lawson , and william lawson defendants . anno . eliz. fol. l. the plaintant being sonne and heire to his father , who dyed intestate , entred into the house whereof his father dyed seized in fee , and possessed himselfe of certain small parcels of goods , to the value of s. of his fathers goods who dyed intestate ; and the defendant having an obligation of l. made by the father unto him for performing the covenants of an indenture , sued the son as executor to his father ( who dyed intestate ) and upon the testimony of some witnesses , that the plaintant had sold or given away the said small parcels of goods , a verdict passed for the defendant for the whole l. which appeared by certificate of the justices of assizes ; and thereupon an injunction was granted to stay judgement , and all other actions to be commenced by the defendant against the plaintant upon the same obligation , untill the matter be heard , or otherwise determined by the court ; edward north plaintant , george ke●ewich defendant . anno . eliz. fol. . it is ordered , if the defendant shew not cause on friday next , then the injunction before granted for the defendant against the plaintant , to stay his execution in the kings bench , shall be dissolved , or else the money for which the plaintant lyeth in execution at the defendants suite shall remaine in his hands , in part of payment of such money as is due unto him by the defendant ; and afterwards upon fryday because the lord keeper did not sit in court to hear such cause a● was offered , further day was given , and afterwards the plaintant was left at liberty to call for execution upon the judgement , because the defendant shewed no cause , thomas hales plaintant , thomas stanebridge defendant . anno . eliz. fol. . the defendant exhibited his bill into the chancery , for certaine lands , and afterwards sued the plaintant in the common pleas for the same lands , before the matter was determined in the chancery ; therefore an injunction was awarded against the said body , to stay his proceedings in the common pleas ; robert bill , and thomas gifford plaintants , iohn body defendant . anno . eliz. fol. . the undersheriffe of middlesex brought into this court the body of the plaintant by commandment of the lord keeper , in execution upon a writ of extent of l. together with the said writ , at the suite of sir edmund maliverer knight ; and by order of court he was taken from the sheriffe of middlesex , and delivered in execution to the warden of the fleet for the l. and because the defendants shewed no good cause to the contrary upon a day given them ; therefore it was ordered that upon recognizance by the plaintant and good sureties , to stand to the order of the court , or else to yeeld his body prisoner to the fleet in execution , and there to remaine untill the defendant be satisfied ; he the plaintant shall have liberty to goe at large ; and that the defendant shall not sue for any manner of execution , by force of the said execution ; robert rosse plaintant , christopher lassels , and alice defendants . anno . eliz. fol. . the plaintant had judgement in the kings bench against the defendant upon a bond of l. and another judgement for l upon an action of debt of arrerages of account in the kings bench ; and ordered they may proceed with execution upon the bond of l. and also to take execution of l. parcell of the l. provided alwayes , and it is ordered the plaintant shall not in any wise proceed , nor take execution of the l. residue of the l recovered upon the accompt , without speciall license of the court , iohn brooke , and katherine his wife plaintants , thomas apprice defendant . anno . eliz. fol. . the plaintant sheweth by his bill , that the personage of thekelye was holden by force , whereby the plaintant could not be inducted , whereupon a writ of de vilaica removenda was awarded out of this court , and thereby the plaintant put in possession by the sheriffe : neverthelesse the defendant keepeth the possession of the said house appertaining to the personage ; and for that the plaintant is bound to pay his first fruits to the queenes majesty , therefore an injunction is granted against him ; thomas boult clerk plaintant , sir george blunt , miles and alice defendants . an. . eliz. fol. . the plaintant made title to the lands by a lease paroll made by the defendant unto him , whereupon he did sow the ground with corne , and the defendant entred upon him ; therefore the plaintant had an injunction for the corne ; thomas harrison plaintant , richard chomeley , miles and alice defendants . an. . eliz. for three hundred pound . it is decreed , the desendant and his heires shall from time to time yearly pay to the plaintant and his heires lords of the mannor of knebworth , the rent of s. d. for the peece of ground called the haw●e , together with the arrerages thereof since the . of ed. the : and shall from henceforth doe suite and service to the court of the plaintant and his heirs , owners of the said mannor ; and the plaintant and his heires shall have and receive the fines and amercyaments presentable in the court of the mannor for any trespasse , or lack of service done by the tenants of the said hawte ; richard litton plaintant , iohn couper defendant . an. . eliz fol. . it is ordered a subpoena be awarded against the defendant to be examined upon interrogatories , whether before his answer he had knowledge that the plaintant was marryed , and would take no advantage of the same marriage in his answer , then the matter to proceed without bill of revivor ; christian fairefield plaintant , robert greenfield defendant . an. . eliz. fol. . the question of the case drawn was , whether the advowson in question did passe by the livery made in the view of the church without deed or not ( the church being full of an incumbent ) and resolved by the lord chiefe justice of the kings bench , and justice manwood , to whom the same was referred , that the advowson could not passe by that livery ; pannell plaintant , hodgson alias hodson defendant . anno . and . eliz. a subpoena ducens tecum was awarded against the defendant to bring in certaine deeds , and to shew cause why the same should not be delivered to the plaintant ; the defendant by his councell , shewed that the morgage was upon condition for payment of l. at a day ; and before the day , the morgager sold the same over to the plaintant , and delivered the estate by livery and seizin , whereby the condition was extinct ; and yet the defendant offered to give for the same l. it is ordered that the evidences be delivered to the usher of the court , but not to the plaintant , without speciall order ; wilford plaintant , denny defendant . anno . and . eliz. the plaintant exhibited his bill to be releived for a promise , supposed to be made by the lady lutterell for a lease of certaine lands ; and for stopping certaine wayes ; the defendant had a commission to take her answer , and demmurred for that the plaintant may have his remedy by law , which cause seemes insufficient , and not to be allowed of ; and the rather for that the defendants having a commission to take their answers in the co●ntry did demurre ; therefore a subpoena is awarded against them to make a better answer ; stukly plaintant , the lady lutterell & aliis defendants . an. . and . eliz. stephen smith made oath that he was present , when one iohn maddock made these persons hereafter named , privy to a writ of execution , upon a decree made for the plaintant , viz. iohn ward , iohn priddo●k , henry pinly , lawrence banks , iohn kiddermaster , and william tuttle ; and the said maddocks left the same writ with one thomas smith , from whom the defendant confesseth the receipt of the said writ , which said parties have not performed the said decree ; therefore an attachment is awarded against them ; leake plaintant , marrow defendant , an. . and . eliz. the bill is against the defendants as executors to their father , who in his life time being gardian in soccage to the plaintant in right of the plaintants mother whom he married , for and concerning profits by him taken of the lands of the plaintant during his minority , for fines of leases , woodsales , and wilfull decay of houses , and doth a●er assets sufficient to become to their hands ; the defendants demurre , because not privy , nor chargeable by law , but ordered to answer ; burgh plaintant , wentworth defendant anno . and eliz. thomas staple●on made oath , that he delivered a subpoena to the defendants wife , being in the defendants house who hath not appeared , therefore an attachment is awarded ; barlow plaintant , baker defendant . anno . and . eliz. it is decreed by assent , that the defendant being lord of the mannor of alderswasley , shall have for a fine of a coppyholder upon a surrender , one whole yeares value , as the same is reasonable worth , according to the usuall rates of lands in that countrey , blackwall and alice tenants of the mannor of alderswasley plaintants , low defendant . an. . and . eliz. the defendant confesseth by her answer , the having of a tablet or pomander in gold demanded by the plaintant ; and as to the l. likewise demanded by the plaintant , by him left with the said d●fendant as a token , at such time as he was a suter for marriage to the defendant ; she confesseth the same was left with her against her will , and she delivered the same over unto one sydole her brother , who was a dealer with her on the plaintants behalfe , to the end hee should deliver the same over to the plaintant . it is ordered the tablet be forthwith delivered by the defendant to the plaintant , which was done presently in court ; and as to the l. the plaintant shall call in the said sidole by processe ; young plaintant , burrell and elizabeth uxor ejus defendants . anno and . eliz. the plaintant by his bill sheweth , that the copy of the court ●oll whereby the defendants pretend title , was indirectly entered by the stewards clarke of the mannor ; the defendants demurre for that the plaintants shall not be received by surmise to object against , or impeach the said court rols ; and alleadgeth further the copy was found by the homage to be true , which causes seem to this court very insufficient : it is therefore ordered , if cause be not shewed before wednesday for maintenance of the demurrer , then a subpoena is awarded against the defendants to make answer ; holden and holden plaintants , cleark and alice defendants . anno . and . eliz. the plaintaint hath exhibited his bill of revivor against two , where the first bill was against three ; and the personage in question is named by another name then in the former bill ; therefore ordered , if cause be not shewed by a day , the defendant shall be discharged , heines plaintant , william day deane of windsor , and hatchines defendants . an. . and . eliz. william lowgher appeared and answered , but rob. lowgher claimed the priviledge of the university of oxf. but because the said doct. lowgher was joyned with william lowgher in the bill who was not subject to the same jurisdiction ; therefore ordered processe to be awarded against him to shew other cause why he should not answer ; white plaintant ; rob. lowgher doctor of divinity , and will . lowgher defend . an. . & . eliz. the defendant is adjudged to pay to the plaintants s. costs for suing out processe of contempt against him , being discharged by her majesties generall pardon ; iones and parris plaintant , iones defend . an. . and . eliz. there is more presidents of the like case . walter ieames made oath , that he hanged a subpoena on the door of one stacy barry widdow ; and that the defendant used to resort thither as he heard reported before that time , who hath not appeared ; therefore an attachment was awarded ; ieames plaintant , morgan defendant . an. . and . eliz. the plaintant exhibited his bill against the defendant , by practise of purpose to examine witnesses , and did examine witnesses accordingly , whereas the cause chiefely concerned one thomas staunton , and will . bayes ; and therefore ordered that the depositions should be suppressed , and that the said staunton and bayles shall exhibite a bill into this court , against all such as they thinke to be parties to the fraudulent abusing of this court ; walford plaintant , walford defendant . an. . eliz. it is informed that the parties dwell in the county palatine of lancaster , and the matter of the bill is for a supposed trespasse , in entring upon the defendants lands , and consuming his grasse and hay upon the same , which this court doth not use to hold plea of ; therefore ordered if it be true , then the cause is dismissed , and the plaintant to take his remedy in the county palatine of lancaster ; hame●heson plaintant , tounstall , covell , rigmaden , and baldwin defendants . an. . eliz. the plaintants suit is to have an award made ( by master tilbey ▪ and mr. chambers arbitrators indifferently chosen ) performed , and both parties were bound each to other for the performance of the award ; and one part of the award was , that if any question did grow between the parties , the arbitrators should end it ; it is ordered a subpoena to shew cause ; launcellot barker plaintant , peter barker defend . an. . eliz. the plaintant exhibiteth a bill of complaint against luce and maulde two of the defendants ; and after commission maulde marrieth iohn bourne the other defendant , and the plaintant then exhibited a bill of revivor against the defendants , which needeth not as it seemeth to this court ; therefore ordered , if there be no cause of revivor , that bourne and his wife who are called up by processe to answer the same bill are licenced to depart without answer to the bill of revivor ; and the plaintant to pay him such costs as this court shall award ; iackson , and vxor plaintants , luce smith , iohn bourne , and maulde his wife defendants . an. . eliz. the plaintant by his bill pretends title to certaine lands , and freehold lands , which lands the defend ▪ claims to hold by copy of court roll to him and his heires of one thomas stedolph esq. lord of the mannor of milcklam in the county of surrey ; whereof the said lands are parcell ; and prayed in aide of the said stedolph ; neverthelesse the plaintant served the said arnold with processe to rejoyne without calling the said stidolph thereunto , which this court thinkes not meet ; therefore ordered the plaintant shall no further proceed against the defendant , before he have called the said stidolph in by processe ; lucas plaintant , arnold defendant . anno . eliz. the said holgate maketh oath , he left an injunction in the house of the defendant ; and that the defendant elizabeth white , thomas crimore , and robert watkins have disobeyed the same ; therefore an attachment is awarded against them ; holgate , and vxor ejus planitants , grantham defendant . an. . eliz. the defendant this day made his personall appearance upon a commission of rebellion , for saving his bond made to the commissioners in that behalfe ; brown plaintant , derby defendant anno . eliz. commonly it is used to take the bonds in the name of the lord chancellor , lord keeper of the great seale of england , the master of the rols , or to any two of the masters of the chancery , all which are good and allowable by the practise of the court of chancery . upon affidavit made by the plaintant , that since publication granted he had divers witnesses setting down their names , come to his knowledge , which formerly he had not knowledge of , therefore ordered he may examine them before the examinor , ad informandū conscientiam iudicis . the plaintant comming to the defendant shewed him a writ , but did delive● him neither note of the day of his appearance , neither did the same appear unto him by the sched●le , labell , or any other paper , and the defendant appearing found no bill : it is ordered the defendant be allowed good costs , and an at●achment against the plaintant for such serving ; brightman plaintant , powtrell defendant . anno . eliz. the plaintant called the de●endant dwelling in the county palatine of ch●●ter by processe to an●●er a bill for lands lyi●g in the said county palatine contrary to a generall order lately certified into this court by her majesties appointment , touching the said county palatine according to the said generall order ; willoughby plaintant , brearton defendant . an. . eliz. the plaintants bill is that he leassed a house to the defendant ; and did covenant to build and repaire it before a day , which being at hand , and shewed that he had prepared timber and workmen to performe the same , but the defendant as well to have him breake his covenant , as to free himselfe from his covenant to keep it in reparations , did interrupt and threaten the workemen , whereby they durst not proceed to repaire , and so the houses are decayed ; and the plaintant hath no remedy to force the defendant to suffer him to repaire ; the defendant demurred upon the bill alleadging the plaintant hath sufficient remedy by law , which kind of answer this court alloweth not ; therefore a subpoena is awarded against the defendant to answer ; wood plaintant , tirrell defendant . anno . eliz. where it appeared by a booke heretofore presented to the queenes highnesse , under the hands of sir iames dyer knight , lord chiefe justice of the commou pleas , mr. justice weston late a justice of the same court , mr. justice harpar late another justice of the same court ; and mr. justice carus late a justice of her majesties bench and remaining ( by force of her majesties warrant ) of record in the court of chancery , touching the jurisdiction of the county palatine of chester ; that before the raigne of king henry the third , all pleas of lands and tenements , and all other causes and contracts , and matters residing and growing within the said county palatine of chester are pleadable , and ought to be pleaded and heard , and judicially determined within the said county palatine of chester ; and not elsewhere out of the said county palatine ; and if any be heard , pleaded , or judicially determined out of the same county then the same is void , and coram non iudice ( except it be in case of error , foraign plea , or forraigne voucher ) and also that no inhabitant within the said county palatine by the lawes , liberties , and usages of the same , be called or compelled by any writ or processe to appear , or answer any matter or cause out of the said county palatine for any the causes aforesaid ( as by the said book among other things more at large appeareth ) and where now of late the plaintant hath exhibited a bill of complaint into this honourable court for , and concerning certaine lands and tenements lying within the said county palatine ; and hath taken processe against the said defendant in that behalfe , who hath thereupon appeared , and by his councell made request to this court , that for the causes aforesaid the matter here exhibited against him might be from henceforth dismissed ; wherefore forasmuch as william sayler hath made oath , that the said lands doe lye within the said county palatine ; and that the said defendant is inhabiting , and dwelling within the said county ; therefore the said cause is from henceforth dismissed , and remitted to the chamberlaine of chester ; and other her majesties ministers there according to the tenour of the same booke ; wllloughby miles plaintant , brearton defendant . an. . eliz. iearvise wheatly made oath for the serving of a subpoena upon the defendant , to testifie on the behalfe of the plaintant at the guildhall in london , who hath not thereupon appeared ; therefore an attachment is awarded against him , batt plaintant , rookes defendant . an. . eliz. a bill was exhibited by the plaintant against roger haule , supervisor of the last will of thomas clifton , and one roger haule was served with processe , that was no supervisor of the said cliftons will , and alleadged that the said roger haule who was the supervisor was dead ; and ordered the defendant shall put in his allegation upon oath by way of answer ; and then desire judgement , whether he shall be compelled to answer the said bill or not ; and therein pay his costs for his wrongfull vexation , which shall be thereupon allowed to him , harrison plaintant , haule defendant . an. . eliz. the plaintants are adjudged to pay to the defendants s. costs comming upon processe of subpoena to testifie on their behalfe ; and having no charges tendered unto them , nor any interrogatories put in for them to be examined upon ; pearce , and uxor ejus plaintants , crawthorn and white defendants . anno . eliz. lawrence hide gentleman , being called upon by processe by the plaintant to testifie , informed this court , that he was ready to depose , so that he might first have his costs to him allowed , which this court thought reasonable ; belgra●e plaintant , edward earle of hertford , and william drury de●endants . an. . eliz. thomas hawtry gent ▪ was served with a subpoena to testifie his knowledge , touching the cause in variance ; and made oath that he hath been , and yet is a sollicitor in this suite , & hath received severall fees of the defend ▪ which being informed to the master of the rols , it is ordered that the said thomas haw●ry shall not be compelled to be deposed , touching the same ; and that he shall be in no danger of any contempt , touching the not executing of the said processe , berd plaintant , lovelace defendant . anno . eliz. the plaintant exhibited his bill , as well in his own , as in his wives name , concerning a promise made by the defendants to the plaintant ; and his wife to make them a lease of the mannor of appescourt during their lives , the defendants demurre , for that the plaintant ought to have a bill of revivor against them , for that his wife is dead since the bill exhibited ; which cause of demurrer this court alloweth not , for that the promise was made during the coverture ; and the plaintant claimeth not the same in right of his wife ; therefore the defendants are ordered to answer directly to the bill ; thorne plaintant , brend , wilkinson and alice defendants . anno . eliz. austen plaintant , vesey defendant ; the defendant is served with a subpoena to testifie ; and for that it appeared by affidavit , that he was sollicitor in the same cause to one of the parties , he was discharged and not admitted to be examined . an. . and . eliz. hartford plaintant , lee and alice defendants ; the sollicitor of one of the parties was served with subpoena , to testifie in the cause in controversie , and the court discharged him , by reason he was solliciter in the cause . an. . eliz. the plaintants bill was for that he being a coppyholder leased to the defendant for years , and the defendant hath digged gravell , and sold the same away , whereby the coppyhold is prejudiced ; the defendant justified , for that the copyholders are not punishable in waste , which cause this court alloweth not of ; for though the copyholders of the mannor are not punishable , yet the leasses of copyholders of the mannor are punishable ; therefore a supoena is awarded to shew cause , why an injunction shall not be granted , for staying his digging of gravell , and felling woods upon the copyhold lands ; dalton plaintant , gill and pindor defendants . anno . eliz. whereas the plaintant exhibited his bill against the defendant for wilfull perjury , the defendant hath demurred , which this court alloweth not of : it is ordered a subpoena be awarded to the defendant , to answer thomas woodcock plaintant , giles woodcock defendant . an. . eliz. whereas there was an award in writing exhibited into this court made between the said parties , by sir christopher wray knight , lord chiefe justice of england , whereunto the lord chiefe justice hand as well as the parties are subscribed ; it was requested by the plaintants the same might be decreed by this court , which this court refused to grant , untill the defendants were made privy ; therefore processe is awarded ; wakefield , & vxor , & aliis plaintants , hawson , & vxor , & aliis defendants . an. . eliz. the suit was to stay suit in the spirituall court for a legacy of l. ioan banvill widdow plaintant , guy banvill defendant . anno . eliz. the suite was for common of pasture , and turbary ; the defendant demurred for that the plaintant may have remedy at the common law , but ordered to answer ; lawrence and moregate , & aliis plaintants , windham defendant . an. . eliz. robert goodwine made oath that at such time as he came to the house of the defendant to serve a subpoena upon him according to an order of the . of may last , one of his servants came forth and told him he was within , who thereupon delivered the writ , to be delivered to the defendant his master ; goodwine plaintant , sullyard defendant . an. . eliz. the defendant made oath that he was served with a subpoena by the plaintant in the name of one william web utterly unknown to the defendant and now upon his appearance , no bill in court against the defendant , in the name of the said william web or of the plaintant ; therefore s. cost is awarded against the plaintants . an. . eliz. forasmuch as the said abel , one of the defendants appeared , and answered the last terme , and his wife did not ; therefore an attachment was awarded against them both ; monox plaintant , abel and his wife defendants . anno . eliz. whereas there was this present day exhibited into this court a certificate under the seale of the university of oxford on the defendants behalfe , testifying and declaring that the chancellors of the said university , and their successors from the time , whereof the memory of man is not to the contrary ▪ as well by graunt and consideration of her majesty , as of her majesties noble progenitors , sometimes kings of this realme have had the cognizance , and finall determination of all manner of pleas , strifes , quarrels and controversies whatsoever ( felony , maine , and franketenant onely excepted ) rising and growing as well within the precinct of the said city of oxford as without , within the realme of england ; whereas one of the parties within the said suit , action or plea , is a master or schollor , or common minister of the same university , or such a person as the chancellor , vicechancellor , lieutenant , or commissary will certifie , ought to enjoy the priviledge of the same university ; and that the same persons upon the shewing forth of the said certificate in any court where they are impleaded ought to be discharged out of the same court , forasmuch as it appeareth by the said certificate that the said defendant , who is brought up by a subpoena , to answer a bill exhibited by the plaintant into this court , is a batchelor of law in the same university ; and for that also it appeareth by the plaintants said bill of complaint , that the matter therein contained , is onely for certaine promises supposed to be made by the defendant to the plaintant , touching certaine goods , chattels , and money therein mentioned , and not franktenement , or any matter before excepted : it is therefore ordered , that the said defendant be of , and from the said bill of complant , and matters therein contained , from henceforth clearly , and absolutely dismissed ; and the plaintant referred to take his remedy for the same , before the chancellor , vicechancellor , lieutenant , or commissary of the said university of oxford , according to the tenor of the said certificate ; temple plaintant , foster doctor of the civill law defen. anno . eliz. thomas plaintant , mounson defendant , produceth a certificate of the university , claiming jurisdiction of the same university ; therefore the cause is from hence dismissed to be tryed and determined there . an. . eliz. the plaintant in the end of easter terme , by master griffeth his attorney required the defendant to proceed to commission for examining of witnesses , and the defendant was ready to joyne , sithence which time the plaintant contrary to the order of this court ▪ ( as they alleage ) hath produced one of the masters of this court , and one of the examinors to travell to the plaintants house in wiltshire miles distant from london , & there hath examined witnesses ; it is ordered that publication be stayed untill the matter be examined after publication is granted ; darrall plaintant , and stukey defendant . an. . eliz. the plaint . father did purchase in fee-farm to him and his heirs , the mannor of long eason , in the county of de●y , of one kymwelmarch rendring l. rent , with a condition of reentry for non payment of the rent , deviseth the land to another for life : a ducens tecum for the evidences . an. . eliz. forasmuch as the defendant hath appeared in this court upon an attachment of priviledge , and attended from day to day according to his bond made in that behalfe ; and hath also pleaded an issue to the plaintants declaration ; therefore the defendant is licensed to depart : dugdell plaint . orrell defend . an. . eliz. the defend . by his answer confesseth he was joynt purchasor in trust with the plaintants father to them two , and to the heires of the plaintants father of the lands in question ; and that he never received any profits thereof ; and that he meant at the plaintants full age to convey the lands to the plaintant , and his heires according to the trust ; it is ordered and decreed the defendant shall forthwith upon notice to him given convey his estate in the lands to the plaintant , and the heires of his body begotten with such remainder over as in the last will and testament of the plaintants father is expressed at the costs of the plaintant ; young plaintant , leigh defendant . anno . eliz. bittenson one of the defendants demurred , for that he was a clerke of the exchequer , and ought to be priviledged there ; and the said mary demurred without shewing any cause , forasmuch as it was openly affirmed by the common voyce of the officers of the same , that the said bittenson may be impleaded in this court , notwithstanding any priviledge in the exchequer ; and for that likewise , if there were any such cause of priviledge , yet he could not have the same in this suite , by reason another party who ought not to have any such priviledge is joyned with him ; therefore a subpoena is awarded against the defendants to answer ; east and scudamore plaintant : bittenson , and mary valence defendants . an. . eliz. it is ordered that in a bill of perjury put in against the defendant , he having put in his answer , should not depart untill he be examined upon interrogatories , according to the generall order and course in that behalfe accustomed ; for it was affirmed by the officers of this court , that by the order and custome of this court , he ought to be examined upon interrogatories : philips plaintant , benson defendant . anno . eliz. the defendant made oath , the plaintant came to him on easter day last in barrington church ; and commanded him in the queenes name to appeare in chancery the day after , which said defendant demanded the processe ; and the plaintant answered him he was to serve another , and therefore would not leave him any note for his appearance ; and yet upon his appeance no bill found in court ; therefore the plaintant is adjudged to pay him s. costs ; syers plaintant , cotts defendant . anno . eliz. robert hodgeson made oath , that he left a subpoena to make a better answer upon the doore of the lodging of the said defendant , being at the signe of the maidenhead without temple bar , whereas both by the report of divers of the neighbours thereabouts , as by the recourse of her servants to and fro at the same time by all presumptions , she the said defendant was then in the said house ; and yet she hath not made a better answer ; therefore an attachment is awarded against the defendant ; croker plaintant , hampden defendant . an. . eliz. the said defendant hath this present terme appeared upon a subpoena at the plaintants suit pascha and no bill in court ; and for that the defendant hath lost the said subpoena , he cannot demand his charges for want of the said bill ; it is ordered no processe of contempt issue out of this court against the defendant upon the said subpoena : blanch parvy plaintant , morgan defendant . anno . eliz. the defendant made oath , that one of the plaintants servants shewed him a subpoena tres pasch. return ; but would not deliver him the writ or labell ; and now upon the defendants appearance , there is no bill against him in court , therefore costs : gray plaintant , gurney defend . an. . eliz. the defend . by his answer disclaimed of the clarkship of the peace in question , and confessed thereby that he delivered all the records , and titlelings of sessions , which he had , to master treutham custos rotulor ▪ in the county of stafford ; and yet the plaintant hath replyed to the same to examine the manner of assault , and other matters touching the death of one ashbrook , and goeth about to examine witnesses thereupon ; it is ordered , that if cause be not shewed to the contrary , that no witnesses shall be examined touching the manner of assault or death of ashbrook , or circumstances thereof ; archbald plaintant , borrold defendant . an. . eliz. the defendant in a scir. fac . upon a recognizance to pay l. at martine in the county of surrey pleaded payment at bristow , where the justice of assize without speciall commission commeth not , to the intent onely to delay the party ; therefore it is ordered the defendant shall by friday next , either be sworne to his said plea , or else put in such a sufficient issuable plea , as he will stand unto at his perill ; lovell plaintant , hopkins defendant . an. . eliz. the defendant demurred upon a bill of revivor exhibited by the plaintiffes against her , for that she was a woman covert during the time the first suit depended ; but ordered to answer for that she was party to the suit with the said twynneho● her husband ; ruthel & uxor ejus plaintants , dom. elizabeth litton , late wife to edward twinnehoe defendant . anno . . eliz. the plaintant and her husband exhibited their bill against the defendant ; the husband dyeth , the wife now plaintant , exhibiteth a bill of revivor , and goodw . alice parrot widdow plaintant , randall and cowarden defendants . an. . eliz. it is ordered that from henceforth no entry be made by any the attorneyes into the registers book of this court of any appearance of , or upon any attachment , or commission of rebellion ; but that the party so appearing , shall first enter into sufficient bond by obligation to this court , to be taken by the register of this court , with condition to attend from day to day ; and not to depart before he be specially licensed by this court . pascha . . eliz. the defendant refuseth to answer the receit of rent , and demurred for that the plaintant may have remedy by law for the same ; therefore ordered a subpoena be awarded to make direct answer ; dixe & cantrell plaintants , lintoft defendant . anno . eliz. whereas information was made to this court , on the behalfe of george stidenham esq. now sheriffe of the county of somersetshire , that whereas a capias upon a recogn●zance of l. s. d. issued out of this court in hilary terme last , to the sheriffe against the said defendant , the said sheriffe had a capias also for a debt due to her majesty , to him directed out of the court of exchequer , both which capiasses the sheriffe returned into the said severall courts the last terme a cepi corpus & languid●● in prisona ; whereupon a duces tecum issued out of the said court of exchequer to the said sheriffe , for bringing in of the body of the defendant into the said court of exchequer ; whereupon the said sheriffe hath brought up the said defendant , and made request this present day to this court , that some order might be taken by this court , that the defendant may remaine in execution for the debt of the said plaintant , after he hath answered his said debt to her majesty ; so that the said sheriffe may not hereafter be charged by the returne made by the capias upon the said recognizance in this court ; it is therefore ordered by the advice of the right honourable the lord treasurer , and the lord chiefe justice of england being present in court , that a habeas corpus be awarded to the warden of the fleet , to bring the said defendant into this court on thursday next , to the end the said warden may be also charged with the said defendant by this court , till he have satisfied or taken order for the payment of the debt due to her majesty ; and that then he shall keep him in his custody , untill hee answer unto the plaintant , this said debt of l. s. d. ward plaintant , crouch defendant . anno . eliz. thomas boulton made oath , that the defend . was served with a billet in paper to appear . trinitat . and no bill in court against her at the plaintiffes suite ; therefore the plaintiffe is adjudged to pay the defendant s. d. sustained in sending up the said boulton who hath made oath , that she is so impotent , that she is not able to travell up hither thereupon personally : gredlow plaintant , prestwich defendant . anno . eliz. the plaintant is adjudged to pay to the defendant s. costs , for want of a bill , for that the defendant made oath the plaintiffe shewed him a subpoena wherein his name was written , but would not deliver him the same , for that there were others to serve with the same writ ; symont plaintiffe , pinsonby defendant . anno . eliz. iohn clegge was served with a subpoena , by the name of robert clegge , and iohn warberton made oath , that he served a subpoena upon robert clegge ; and an attachment was served upon iohn clegge , and ordered that he should be discharged thereof ; and might exhibite his bill into this court , against the said iohn warberton , and call him in by processe to answer his perjury ; robert clegge plaintant , thomas warberton . defendant . an. . eliz. a motion for an attachment against the defendant , for breach of a decree and injunction , and ordered by the lord chancellor bromley , that for that time he stayed the granting of the attachment , and vouchsafed to write his letters , requiring him to performe the same , trusting he would have such regard thereunto , as no attachment shall after be required against him : story plaintant , dominus pawlet defendants . . and . eliz. a motion that where the plaintants had exhibited their bill to be discharged of a legacy , the defendant since his suit , sued in the spirituall court ; and therefore day to shew cause why an injunction should not be granted ; parrré & uxor plaintants , tipelady & uxor defendant . anno . and . eliz. william smalwood made oath , the defendant confessed he was served with a subpoena at the plaintants suit , who not appeared ; therefore an attachment is awarded against the defendant , to the sheriffe of essex ; waters plaintaint , and berd defendant . anno . and . eliz. the defendant a master of art in oxford , pleaded his priviledge of the university under the seale there , and demanded judgement whether he should be driven to answer contrary to the priviledge ; and the priviledge was allowed , and the attachment discharged ; cotton plaintant , and manering defendants . anno . and . eliz. a decree is made for the defendant , to enjoy certaine lands , as well coppyhold , as customary ; bamborow plaintant , alexander defendant . anno . and . eliz. the defendant made oath that he was served with a subpoena at the plaintants suit to appeare in this court ; and that he hath lost by casualty the subpoena ; and upon his appearance , there was no bill in court against him , at the said plaintants suite : therefore the plaintant is adjudged to pay the defendant s. costs for want of a bill ; domina edith metham plaintant , michaell fayerbanck defendant . anno . and . eliz. for that it appeared as well by the plaintants bill , as that osney one of the defendants hath made oath that the lands in the bill , is not worth s. per annum ; therefore dismissed generally , and not without costs : townly & uxor plaintants , osney & uxor & parsons defendants . an. . and . eliz. the defendant made oath , that the plaintant , and defendant are both dwelling within the jurisdiction of the marches of wales ; and for that it appeareth by the bill , that the money complained for is under l. therefore the cause is dismissed : eastcourt plaintant , tanner defendant . anno . and . eliz. debt upon a single bill satisfied , and the bill not delivered was sued , and execution gotten , and yet retained in chancery , notwithstanding a motion to be dismissed , because after judgement and execution ; for it was said the judgement and execution may stand , and this suite for that he formerly paid : owen plaintant , ioanes defendant . anno . and . eliz. the defendant maketh oath , that one rock served him with a subpoena in the name of the plaintant ; and at his suit as he affirmed ; but would not deliver neither writ , labell , nor noat of the day of appearance , but told him it was to appeare the first day of this terme , and now no bill in court ; therefore costs is granted against the plaintant : parsons plaintant , hilford defend . an. . and . eliz. an order for a commission , to set out meet wayes , and cawsages moved in presence of mr. egerton of counsell with the defend . custos of all soules colledge in oxford plaintant , everall & aliis defendants . anno . and . eliz. upon an oath made for impotency of ienkin the defend . in a former suit by the said goose , by the name of william ap william , they procured a dedimus potestatem to take the answer of ienkin to iohn floyd , and william goose himselfe , whereas the party was under yeares of age and not impotent ; hereupon the plaintant exhibits an english bill of perjury into this court against the said goose for perjury , and ienkin for the procuring of it ; whereupon they being served with a subpoena to answer the perjury , they get a stay of the proceedings from the counsell of the marches ; where , upon motion , sir thomas bromley lord chancellor , marvelled at such their stay , and writ his letters to the said counsell , and granted a new subpoena against the defendants to answer the perjury ; ioane uxor griffith plaintant , richard ap ienkin , and william goose defendants . anno . and . eliz. the bill was to be releived against a judgement , indirectly gotten by ralfe cavend●sh in the name of thomas cavendish his brother , by default in an account of waste ; and because it so appeared , an injunction is granted ; galley plaintant ralfe cavendish and thomas cavendish defendants . anno . and . eliz. the suite was to be releived upon a lease made to the defendant in trust to the use of the plaintant : and because it so appeared , it was ordered that the plaintant should injoy the lands against the defendant , and all claiming under him that had notice of the trust : and if the lease were sold to such as had no notice of the trust , then the defendant shall pay to the plaintant so much mony as the lease was worth , rooke plaintant , staples defendant . anno . and . eliz. a bill to be releived upon a bond after judgement and execution , and because no material matter alleadged for maintainan●e thereof , therefore dismissed : adams plaintant , doddesworth defendant . anno . and . eliz. the bill was to be releived for egresse and regresse into a garden of the defendants for drying of cloaths , promissed by word only by the defendant to the plainant : therefore dismissed , for that the court ought not to be burthened with such small ma●ers , hamby plaintant , northage defendant . anno . and . eliz. guilliam made oath that he saw a subpoena served on the defendanr who hath not appeared : therefore an attachment ; morgan plaintant , evon defendant , anno . and . eliz. an attachment was delivered to the sheriffe to execute , who did not returne the same ; and upon affidavit of the delivery , a day was given to returne the writ upon paine to be amerced l. crompton plaintant , meridith defendant ; anno . and . e●iz . affidavit made for the delivery of au extent to the sheriffe which he hath not returned : therefore a day is given to the sheriffe to returne the writ upon paine of l. hambey plaintant , wight defendant . anno . and . eliz. three bonds put in suite in the kings bench and stayed by injunction by order , because the queene was hindered of her fine ; pascall plaintant , smith miles defendant . anno . and . eliz. calveley plaintant , philips defendant , bonds put in suite in the k. bench stayed by injunction because the queene was hindered of her fine . anno . and . eliz. the bill prayeth reliefe against the defendant as brother and heire , for that the plaintant paid to his brother deceased ▪ a fine of l. for a lease , who dyed before the same was made ; and therefore desireth either to have the lease made by the heire , or his money againe ; thereupon it is ordered the defendant shall answer an injunction : kreme , alias mogge plaintant , meere defendant . anno . and . eliz. the defendant got costs for want of a bill , and bespake of robert bayles a clerk a subpoena for those costs , who made her a subpoena ad sectam , whereupon the plaintant got costs ; this being moved for discharge of these costs , so gotten by default of the clark . it is ordered that the defendant shall be discharged ; and the plaintant also of the costs gotten by the defendant ; and neither of them should have processe against the other for the same , but the defendant might take a subpoena against the clark that made the erronious processe for the s. costs , which she should have had against the plaintant ; franckblanck plaintant , domina metham defend . an. . and . eliz. oath is made for the delivery of a subpoena to the wife of the defendant at his house , who hath not appeared ; therefore an attachment : pilgrime plaintant , read defendant . anno . and . eliz. the plaintant desireth to be relieved against an obligation of l. which had an intricate and insensible condition put in suit , for that the plaintant being desired by the defendant , to seale a release , desired onely time to be advised thereof , which the defendant would not yeeld unto , but hath put the bond in suit , though no wayes damnified ; and now the plaintant is ready to seale the release ; therefore an injunction is granted : rowles plaintant , and rowles defendant . an. . and . eliz. the defendant took out a commission , to take his answer in the country , and thereby answered he could not directly answer without sight of evidences , which are in nottinghamshire , far distant from dorsetshire ; the defendant afterwards made a perfect answer ; and yet the plaintant took out attachment , and attachment with proclamation , both which were discharged paying the ordinary fees , and s. d. to the warden of the fleet : trussell & aliis plaintants , willoughby miles defendant . anno . and . eliz. iohn cotten the plaintant , brother devised divers goods to his two sons , to be delivered at their full age , and made the plaintant and defendant executors . l. of the goods came to the plaintants hands , l. came to the defendants hands : the plaintant desireth by his bill , that in respect of the trust , and joynt charge which may survive , that the plaintant and defendant may each be bound to the other , to pay the children their portions in their hands at their full age ; and if either plaintant or defendant dye before , then the executor shall pay that which was in the testators hands to the survivor , which this court thought in conscience to be meet , because the defendant by answer confesseth the trust and receit of l. therefore a subpoena is awarded against the defend . to shew cause why it should not be decreed : cotton plaintant , causton defend . anno . and . eliz. an attachment and other processe of contempt issued out of this court , for not returning the defendants answer by commission is discharged , paying the ordinary fees , because the plaintant named one commissioner , who refused to joyne with one of the defendants commissioners in taking the defendants answer ; and a new commission is granted to indifferent commissioners named by the defendant : marshall plaintant , harwood defendant . an . and . eliz. it is moved that where a prohibition was six moneths since granted for stay of a suite in the ecclesiasticall court at herford , upon surmise the lands are held in capite , whereas it appeared by letters patents thereof the lands holden of eastgreenwich ; therefore consultation , unlesse cause shewed ; and the party to pay double costs according to the statute , whereby the prohibition is granted : wolfe plaintant , merrick clums defendant . an. forasmuch as the major of totnes hath certified under his common seale , that the defendant made oath before him , that he was served with a billet in paper at the plaintants suit , and upon his appearance no bill , therefore costs : white plaintant , carpenter defendant . an. . and . eliz. brent an attorney at common law for the defendant being present in court , is enjoyned in open court upon paine of l. not to proceed at common law , upon an action of debt upon an obligation against the plaintant : bishop plaintant , iessop and wats defendants . anno . and . eliz. forasmuch as the said thoroughgood made oath that the matter in the bill is for a portion of rent of s. by year being of small value , it is dismissed ; knighton plaintant , allen and thoroughgood defendant . an. . and . eliz. iohn vaux made oath that he saw a subpoena served upon the defend . therefore for not appearance an attachment is granted ; vaux plaint . glasiers defendant . an. . and . eliz. iohn leigh made oath for the serving of a subpoena on a witnesse , to testifie on the plaintants behalfe before certaine commissioners who hath not so done : therefore an attachment is awarded against the defendant ; middleton plaintant , speright defendant . an. . and . eliz. the plaintant made oath that he heard the defendant confesse he was served with a subpoena and hath not appeared ; therefore an attachment is granted ; stow plaintant , and maddock defendant . an. . and . eliz. the defend . and one thomas butcher , whose executors the said ioane & alexander have purchased certaine lands joyntly ; the defend . promised the said thomas upon his dea●h bed , hee would take no advantage of the survivorship , but that the said thomas might by his will dispose them , thomas by his will devised his part of the lands towards payment of his deb●s ; therefore decreed by the assent of the defen. that the defē . should make estate accordingly ; spring & uxor & alexander buthcer plaintants , vpton defend . an. . and . eliz. robert medigate esq. was served with subpoena to testifie , and hath not answered to certaine interrogatories administred unto him on the plaintants behalf , at the time of the executing of the said commission , excusing himselfe that he could not to some for want of certaine court rols , and to some other interogatories he referred himselfe to former depositions , but doth not shew where they remaine , nor when they were taken ; it is therefore ordered that the considerations of the depositions of the said medigate be referred to mr. doctor carew , one of the masters of this court ; and if he certifie that he hath not sufficiently answered , then order shall be taken , that he shall directly answer the same ; fish plaintant , mountford & aliis defendants . an. . and . eliz. it is ordered that upon affidavit made , that the defendants dwell within the county palatine of chester ; and the cause of the bill is to be relieved of certaine debts there , the cause is therefore dismissed into the said countrey : heyward plaintant , sherington defend . an. . and . eliz. the effect of the suit is for a hawke , and certaine evidences supposed to be come to the defendants hands ; and because it seemeth to the court , the matter of evidences was onely inserted to give colour to the court to hold plea ; and the matter of the hawke is no meet matter for this court ; therefore the matter is dismissed ; glasiers plaintant , massie defendant . an. . and . eliz. the bill is dismissed because that mr. massies name was put to the same , as of councell without his privity ; gristing plaintant , hore and hore defendants . an. . and . eliz. the plaintant is adjudged to pay to the defe●d . s. costs , for prosecuting processe of contempt against him , and no contempt proved : wrayford plaintant , weight and hingeston defendants . an. . and . eliz. the bill setteth forth that gibone , one of the defendants in consideration of l. did bargaine and sell unto the plaintaint certaine lands in the bill mentioned ; and made unto him a deed of feoffement , and a letter of atturney to make livery , and seizin , and before livery , made a lease to cateline , who knew of the bargaine , and he leassed to brown , who knew also of the bargaine , and this appearing to this cou●t to be true , an injunction is granted to the plaintant , untill the cause should be heard and determined : ireby plaintant , gibone , cateline , and browne defendants . an. . and . eliz. a speciall certiorare to remove a cause out of london , the plaintant proveth the surmises of his bill , the defend . beginneth suit in the kings bench for the same cause ; therefore stayed by injunction ; cliffe plaintant , turnor defendant . an. . and . eliz. the plaintants suite is to be relieved for a common , and a subpoena is awarded against the defend . to shew canse why an injunction should not be granted to stay the suite at the common law ; chock plaintant , chea and wast defendants . an. . and . eliz. the matter is dismissed , because the suit is for . l. onely . marber plaintant , kempester defendant . an. . and . eliz. the said edmund barker defendant maketh oath that he received a billet of paper , of iohn barker his brother , who affirmeth likewise upon his oath , the same billet was delivered to him by the plaintant ; and because upon the defendants appearance no bill is in court ; therefore s. d. is adjudged against the plaintant ; cook plaintant , barker defend , an. . and . eliz. the mayor of totnes certified under his common seale , that the defendant made oath before him , that he was impotent , and not able to travell ; therefore a commission is awarded to take the defendants answer in the countrey ; wotten plaintant , lewescomb defendant . an. . and . eliz. dodderridge plaintant , lasty defendant upon oath made before the mayor of exeter of the defendants impotency , and unfitnesse to travell , a commission is granted to take his answer in the countrey . an. . and . eliz. thomas fursden made oath , the defendant is above yeares of age ; therefore a commission is awarded to take his answer in the countrey ; vivean plaintant , napper alias sande defendant . anno . and . eliz. george elliot made oath , that all the parties are inhabitants , and dwelling within the marches of wales ; and that the matter contained in the bill of complaint , is for no title of land ; therefore the cause is dismissed to the determination of the said commissioners : morgan plaintant , bithell and evon defendants . an. . and . eliz. philips alias phelps , long and spincke plaintants , powell and singleton defendants , upon oath made that all the parties dwell within the jurisdiction of the marches of wales , the cause is dismissed to be tryed there . an. . and . eliz. forasmuch as the bayliffes of mountgomery have certified under their common seale , that the plaintant made oath before them for the serving of a subpoena on the defendant who hath not appeared ; therefore an attachment is awarded against the defendant ; griffeth plaint . ap edward ap iohn defendants . an. . and . eliz. forasmuch as the major of exeter hath certified under his common seale , that the plaintant hath made oath before him for the serving of a subpoena on the defendants who have not appeared ; therefore an attachment is awarded against them ; preston plaintant , smith & uxor defendants . an. . and . eliz. ap richard maketh oath , the lands complained of is under s by the yeare ; therefore dismissed ; morgan plaintant , ap richard and lewis defendants . an. . and . eliz. an action upon the case commenced in the kings bench to the defendants dammage markes is stayed by injunction , for that her majesty is hindred of her fine , which should have been paid upon the originall : brockhurst plaintant , cotton defend . an. . and . eliz. an action upon the case commenced in the kings bench , to the dammage of the defendant l. is stayed by injunction , for that her majesties fine was not paid ; ward plaintant , cobone defendant . an. . and . eliz. attachment is granted for not appearing upon a certificate by the major of totnes , under his common seale , that iohn king made oath , he saw a subpoena served upon the defendant ; dinnis plaintant , morgan defendant . an. . and , eliz. the plaintants bill is to be relieved for copyhold lands , the defendant doth demurre for that the lands are ancient demeasne lands of her majesties mannor of woodstock , and there onely pleadable ; it is ordered a subpoena shall be awarded to the defendant to make a better answer ; wilkins plaintant , gregory defend . an. . and . eliz. upon a subpoena in perpetuall memory , the defend . appearing assented to joyne in commission ; so as the lord bacons orders , touching examination of witnesses in perpetuall memory might be observed , but upon motion it was ordered , that the commission should be made generall , as in like cases where the parties joyne , for that it seemed to the court , the lord bacons orders were intended to be observed , where the plaintant hath a commission alone ; dominus dacres & uxor plaintants , southwell defend . anno . and . eliz. the plaintant desired to be relieved for a lease made by the defendant to him for yeares , which the defendant endevoureth to impeach , because in the premises of the lease , there is no leassee named , but onely in the habendum ; and the cause being referred to the two lord chiefe justices , and the lord chiefe baron , they certified their opinion in law , that the lease was good in law , notwithstanding the leassee was not named in the premises of the lease , but in the habendum ; and therefore decreed accordingly , that the plaintant should hold the said lease ; butler plaintant , dodton defendant . an. . and . eliz. the case is that the lord wray , and sapcotes father were made executors to the use of children ; sapcotes father having gotten a great part of the testators estate into his hands , deviseth divers legacies to strangers ; & maketh the defend . his son executor , and dyeth ; and the defend . by answer , confesseth his father had divers goods of the first testators in his hands , but said that the defendant had not goods sufficient , more then would satisfie the legacies given by his father ; therefore ordered that the defend . sh●ll first pay to the plaintant the goods which were the first testators ; and so much of his estate , as came to his fathers hands ; wray chiefe justice plaintant , sapcote defendant . anno . and . eliz. the plaintant setteth forth in her bill , that she joyned with her husband in sale of part of her inheritance , and after some discord growing betweene them they seperate themselves ; and one hundred pound of the money received upon sale of the lands was allotted to the plaintant for her maintenance , and put into the hands of nicholas mine esquire ; and bonds then given for the payment thereof , unto henry golding deceased to the use of the plaintant ; which bonds are come to the defendant , as administrator to the said henry golding deceased , who refuseth to deliver the same to the plaintant , and hereupon she prayeth reliefe ; the defendant doth demurre in law , because the plaintant sueth without her husband ; and it is ordered the defendant shall answer directly ; mary sanky , alias walgrave plaintant , goulding defendant . an. . and . eliz. the plaintant served the two defendants with one subpoena , but exhibited two bills ; the defendants appeared and answered the one , but not being served with any other subpoena to answer the second departed ; whereupon an attachment is awarded against them ; and ordered the defendants answering , the second bill be discharged of the attachment ; ap rice plaintant , granoe & grannoe defendants . an. . and . eliz. the defendant demurred generally without shewing any manner of cause ; and therefore ordered that a subpoena be awarded against him to make a perfect answer ; duffield plaintant , greaves & aliis defendants . anno . and . eliz. the plaintant as sole executor to robert maunder ex●ibited a bill against the defendants for the same matter , for which the plaintant and david gome as executors to the same maunder exhibited another bill , and ordered that both bills should be referred ; and if both for one cause , the defendants shall be dismissed from one of the bils with costs ; iohn maunder plaintant , iohn wright & aliis defendants . an. . and . eliz. christopher askame hath made oath , that iohn bleverhasset being a deponent in perpetuall memory is dead , and iohn harrison another of the deponents is , and hath been of long time sick , and not able to travell without danger of his life ; and that their depositions are very needful for the plaintant to be given in evidence , in a matter now depending at the common law ; senhawes plaintant , senhawes & aliis defendants . an. . eliz. the defend . made oath , the plaintant caused him to be served with a subpoena the saturday before the end of the terme , returnable the thursday following , being but two dayes before the end of the terme , he the defendant dwelling in devonshire , sevenscore miles distant from london ; wherefore the defend . could not conveniently appear , and make answer by the returne of the said subpoena ; and yet neverthelesse the plaintant had procured out an attachment against the defendant ; therefore and for that the plaintants bill is but for evidences , it is ordered the defend . be discharged of the attachment putting in his answer . smith plaint . weare defendant . an. . and eliz. upon certificate of henry vgheard , and thomas west two commissioners , that thomas marshall one of the defendants witnesses being warned by precept from them , refused to appear before them , and that roger taylor another witnesse appeared , but refused to be examined , because he sollicites the plaintants cause ; it is therefore ordered that the defendant shall examine before one of the examinors of this court before the end of this terme , as well the said roger taylor upon any interrogatory , which shall not be touching the secrecie of the title , or of any other matter which he knoweth as sollicitor onely , as also the said marshall , or any other necessary witnesse , whereof the defendant shall first set down their names , so that the plaintant may likewise examine them if he will ; kelway plaintant , kelway defendant . an. . eliz. it is informed that the plaintant exhibited his bill without a councellors hand , or retaining an attorney ; and the same is for matter formerly decreed ; therefore ordered if cause be not shewed to the contrary ; and if the bill be to bring the matter in question that was decreed , then it is ta be dismissed ; bingham plaintant , warren defendant . anno . eliz. the defendant demurred upon the bill for incertainty , which was certaine enough ; and also for that all the parties are dwelling within the jurisdiction of the marches of wales , which is no cause of demurrer for title of lands ; therefore ordered if cause be not shewed , a subpoena is awarded against the defendant to answer ; keyes plaintant , hill & uxor defendants . anno . eliz. the plaintant exhibits his bill touching a practise and mis-behaviour supposed by the plaintant to be used by the defendant against him , in bringing him up by subpoena , at the suite of one anthony hinck , whereas the plaintant never knew any such ma● , and for divers other misdemeanors used by the defendant in this court towards the plaintant ; the defendant demurred for that both parties dwell within the jurisdiction of the marches of wales , where hee supposes the plaintant is to seek his remedy , which kind of demurrer this court alloweth not , for that misdemeanors committed in this court are most meet to be here examined ; griffeth plaintant , penrine defendant . anno . eliz. the plaintant sheweth by his bill , that his house and the defendants are joyning together , and supported by one main wall standing partly upon the freehold of either of the said parties ; and the plaintant having also an entry , garret and other necessary roomes standing upon the kitchin of the defendant , he the defend . went about to pull down the said wall , and thereby to overthrow the said garret ; the defendant made title to some of the upper rooms , and hath pulled down part of the wall ; an injunction is awarded to stay the defendant , to pull down any more of the wall , or any other part of the said house , whereby the said upper roomes may be overthrown , or impaired , untill the matter be heard ; bush plaintant , field defendant . an. . eliz. a commission to examine witnesses on both parts upon . dayes warning to be given to the defendant , lucy one of the defendants made oath , that neithen he nor varney had any warning , but if any warning was given , it was given , to smith the other defendant , who is little interessed in the cause , but made a party as the defendants councell supposeth to take away his testimony from the other defendants ; therefore ordered a commission be awarded , whereof the said lucy shall have the carriage directed to the former commissioners , and . dayes warning shall be given to the plaintant , and he to examine if he will ; hollingworth plaintant , lucy , varney and smith defendants . anno . eliz. humphrey loyde made oath , that he saw one lewis leave a subpoena in the hall of the defendant , and that the defendant was at home the same time who hath not appeared ; therefore an attachment is awarded against the defend●nt . anno . eliz. a commission to examine witnesses issued , but the plaintant at the place and day appointed brought not his commissioners , nor the commission , whereby the defendants commissioners could not fit to examine , but the plaintant procured certaine witnesses to be examined before one of the town clarkes of yorke touching the matter in variance , but ordered no witnesses so taken ▪ shall be received into this court , nor the plaintant take any benefit thereby ; and a new commission is awarded : hareforth , and lowther plaintants , gates defendant . anno . eliz. iohn davis made oath that his boy served a subpoena upon the defendant , for the which the said boy was apprehended , and imprisoned in the marches of wales ; therefore an attachment is awarded against the defendant ; dastoines plaintant , apprice defendant . anno . eliz. the defendant made oath , that both the said parties dwell in the jurisdiction of the marches of wales ; and that the matter of the plaintants bill , is but for a lease for yeares , and no title of freehold ; therefore dismissed , moore plaintant , mashall defendant . anno . eliz. iohn lord zouch deceased late father to the plaintant , did give the mannor of winford eagle with th'appertenances in the county of dorset , intailed to the father of the defendant , reserving l. a yeare rent to him and his heires , and after about three yeares last past , granted l. parcell of the said rent to the plaintants for their lives ; and the defendants father did atturne , and pay the rent to the plaintants , untill about two or three yeares before his death , which was about six years since , sithence which time the defendant being issue in taile and seized , refused to pay the said rent , but ordered by this court to pay it , if he shew not good cause to the contrary ; zouch & uxor plaintants , sidden●am defendant . anno . eliz. the plaintant seeketh reliefe by way of contribution , for that one of the defendants hath a rent charge out of this the plaintants lands , and out of one other of the defendants lands ; and yet seeketh to lay the whole burthen of the rent charge upon his the plaintants lands ; and because the defend ▪ would not answer ; therefore an injunction is granted for staying of the suits of the rent ; dolman plaintant , vavasor & aliis defendants . anno . eliz. it appeareth by oath that the defendant is both senselesse and dumbe ; and therefore cannot instruct his counsell to draw his answer ; and therefore ordered , that no attachment , or other processe of contempt be awarded against the defendant for not answering without speciall order of this court ; altham plaintant , smith defendant ; an. . eliz. the plaintant bought of the defendant the reversion of a copyhold , which he could not enjoy , confessed by the defendants answer ; thereupon a subpoena is awarded against the defendant to shew cause why he should not repay the money received upon the bargaine . picketon plaintant , littecote , & aliis defendants . an. . eliz. the defendants were not served with processe ; and yet the plaintant brought up divers witnesses to be examined , but ordered they should not be examined untill the defendants have answered ; episcopus sallesbury plaintant , hinde and hinde defendants . anno . eliz. the plaintant was drawne to drinke , and filled with drink , spoke some words against the defendant , for which he brought an action upon the case at the common law ; whereupon the plaintant exhibited his bill of complaint ; and got an injunction pro non solutione finis . it is ordered that the defend . paying the queenes fine shall have liberty to proceed , and the bill to be dismissed : qui peccat ebrius , luat sobrius , kendrick plaintant , hopkins defendant . anno . eliz. forasmuch as the major of barnestable hath certified , that iohn barker made oath before him , that he did shew and offer to deliver to the defendant a subpoena which he would not accept and hath not appeared ; therefore an attachment ; peris plaintant , thomas defendant . anno . eliz. the plaintants made motion to have publication of witnesses taken . and . philip and mary , betweene one thomas shrub then plaintant , and now deceased , whose daughters and coheires the plaintants wives are , and henry barnard then defendant now likewise deceased , touching lands in the occupation of the defendant ; and ordered the plaintants shall exhibite a bill for publication against the defendants , and call them by the subpoena to answer , and then order shall be taken : clarke & uxor papwell & uxor stockes plaintants , eve mellers , and wodham defendants . anno . eliz. the defendant was served with a subpoena at the suit of hanmer , and for want of a bill got costs ; and the plaintant upon affidavit that the defendant was served with a subpoena at his suit , got an attachment against the defendant ▪ whereupon he was apprehended , and returned languidus ; it is ordered that the attachment be discharged by supersedeas , the defendant paying s. d. to the warden of the fleet , and the ordinary charges to the plaintant : brearton plaintant , ap roberts defendant . anno . eliz. it is informed that coleston one of the defendants examined his own wife as a witnesse ; it is thereofore ordered the plaintant may take a subpoena against her on his behalfe , and if colston will not suffer her to be examined on the plaintants party , then her examination on the said colstons party is suppressed ; bent plaintant , allot and colston defendants . anno . eliz. upon the hearing of the cause it appeared that the suit was to be releived of a promise made by the defendant to the plaintant , to surrender a lease upon payment of markes by the plaintant unto him , and for that the matter is meet for the common law , therefore dismissed : grevill plaintant , bowker defendant . anno . eliz. the court was informed by one palmer , that the three defendants are his servants , and were served with subpoena to be examined before the town clark of london , who refused to be there examined , because the matter is not depending in london , but in her majesties bench ; and yet attachment is gotten against them , which kind of examination of witnesses , this court taketh to be unorderly , and therefore ordered the attachment be discharged ; price plaintant , tench holland and packhouse defendants . an. . eliz. the earle of huntingdon , presedent of the north signified by his letters to the lord chancellor , that the lands for which the bill is exhibited were ordered for the defendant by the counsell of the north parts , where the parties dwell , and land lyeth ; and the now plaintant upon serving his subpoena was ordered by the councell there to surcease his suit in this court , and stand to the order of the said counsell ; and yet the plaintant hath procured an attachment against the defendant ; therefore ordered the attachment be discharged , and the matter dismissed : harrison plaintant , harrison defendant ; . an. . eliz. the defendant demurred because he is the lord treasurers man ; and therefore ought to be priviledged in her majesties court of exchequer , which cause of demurrer the court allowed not for that the defend . can have no priviledge , unlesse it were in such a case as the plaint . might have remedy in the court of exchequer : lewin plaintant , fawdesley defendant . an. . eliz. the defendant made oath the plaintant shewed him a subpoena , holding it in his own hand , and said it was against him , but would not let him have it , or see it , so that he might read it ; neither would he deliver him any note of his appearance , nor tell him the same , but took witnesse that he had served the subpoena , and about an hour after came again to the defendant , saying you were desirous to see the subpoena , here it is , and thereupon shewed the labell to the defendant , but in such sort as he could not see the returne ; whereupon the defendant appearing found no bill ; therefore attachment against the plaintant for misdemeanor : mead plaintant , crosse defend . an. . eliz. the plaint ▪ is grandfather on the mothers side , to whom the lands cannot come by the death of the infant , exhibiteth a bill against the grandfather on the part of the fathers side , to have the education , and bringing up of one richard edge an infant , who is seized of an estate taile of lands , the remainder to the defendant , and to have the disposing of the profits of the lands : but ordered with the defendant , for that it appeared there were divers remainders between the defendants and the infants estate : sweetman plaintant , edge defendant . an . eliz. francis plaintant , sacheverill defendant . the defendant is adjudged to pay to iohn hide s. costs , he appearing upon a subpoena , to testifie on his behalfe . an. . eliz. the plaintant purchased lands of the defend . an. . eliz and had a recognizance then acknowledged unto him , for performing covenants of the bargaine and sale , and put one in trust to get both the indenture , and ●ecognizance inrolled , and paid him for the same ; and now being evicted out of the possession of the lands , came to take out a scir. fac . upon the recognizance , but finds it not inrolled ; and therefore desireth the same might now be inrolled ; it is ordered that a subpoena be awarded against the defendant , to shew cause why it should not ; and m. solliciter who is present at the motion , is to give notice to some of his clients , who have purchased ( as he alleadged ) parcell of the lands to shew cause why it shall not be inrolled : siddenham plaintant , harrison defendant . an. . eli. the defendants informe that the bill is exhibited for certaine lands parcell of the dutchy of lancaster ; and therefore ordered that for so much it shall be dismissed ; price plaintant , lloyd owen , and read defendants . anno . eliz. the matter upon hearing appeared to be for a promise , wherewith the defendant chargeth the plaintant , and d. in money accepted upon the said promise , whereupon some trials , or non suits have passed ; it is orded that for the ending of the said matter of promise , that the matter be referred to the common law to be tryed ; sutton plaintant , erington defendant . an. . . eliz. the defendant informed he was called upon by subpoena dated the . of february , and by answer saith the said iane piers was married the . of february , and so at that time purchasing the writ a woman covert ; therefore the defendant is dismissed with s. d. costs ; iane peirs plaintant , iohn cawse defendant . anno . eliz. the defendant was in possession at the time of the bill exhibited , the plaintant entered upon him ; the defendant desired that either he might have an injunction for his possession , or else that the cause might be dismissed , which the court thought reasonable ; it is ordered the plaintant shall shew cause why it should not be granted ; hill plaintant , portman defendant . anno . eliz. the plaintant thomas hilliar exhibited his bill against the said william kendall , that the said thomas hilliar was seized in fee of two messuages , . acres of pasture , furzes , and heath in lanlivery , parcell of the queenes majesties dutchy of cornewall ; and thereupon a prohibition against the said will . kendall , libelling in the spirituall court for tithes , as farmer to the said batten vicar there , pretending that right of tythes for lands holden of her majesty , as of her dutchy of cornewall ought to be determined in this court ; and also that the said iohn hilliar had exhibited the like bill , and procured a prohibition out of this court against the said batten ; it is ordered a subpoena be awarded against the plaintant , to shew cause why a consultation should not be granted ; hilliar and hilliar plainants , lendall and batten defendants . anno . eliz. oath was made in the name of one edward iones , that the defendant eaton was sick , and the rest impotent , and not able to travell ; whereupon a commission was awarded to take their answers in the countrey ; now edward iones of ruthin was called up at the plaintants suite by processe for perjury , and alleadged he was not the party that made the oath , and brought a certificate to justifie he was at ruthin when the oath was taken ; therefore he is dismissed : brearton plaint . eaton & uxor & aliis defendants . anno . eliz. griffen price made oath that where the plaintant served a subpoena upon him to appeare before commissioners , to testifie on the plaintants party , he the said plaintant did not give o● tender him the said griffen any money for his charges ; and also that he was sick then and not able to travell ; therefore ordered the said griffen be discharged of the processe of contempt gotten out against him for not being examined : more plaintant , woreham defendant . anno . eliz. the plaintant seeketh to have the defendant to assure him certaine lands sold him by the defendant , in consideration of great sums of mony already paid for the same , according to the promise of the defendant made in that behalfe ; the defendant demurreth for that the same promise was made within the jurisdiction of wales where both parties are dwelling ; but this seemeth to the court no sufficient cause of demurrer ; and therefore ordered a subp. be awarded to the defendant to answer : hatton plaintaint , prince defendant . anno . eliz. the defendant took out a commission to take his answer in the countrey and returned a demurrer ; therefore the plaintant took out an attachment which this court liked well , for that the defendant did not directly answer ; yet in regard of an oath made for the defendants impotency a new commission is granted to take his answer , and discharged of the attachment paying the ordinary fees : paine & aliis plaintants , carew defendant . anno . eliz. the plaintant seekes to have master oldsworth examined touching a matter in variance , wherein he hath beene of councell ; it is ordered hee shall not be compelled by subpoena , or otherwise to be examined upon any matter concerning the same , wherein he the said mr. oldsworth was of councell , either by the indifferent choyce of both parties , or with either of them by reason of any annnuity or fee : dennis plaintant , codrington defendant . anno . eliz. the said coleman maketh oath the said porter did deliver him a billet in paper , and did shew him a thing in yellow wax ; and told him it was a subpoena , but did not declare to him at whose suit ; therefore the said porter is adjudged to pay to the defendant s. costs for want of a bill : porter plaintant , coleman defendant . anno . eliz. the plaintant shewed by his bill that he fraughted a ship into spaine which was there confiscate and all his goods , for the defendants husband being master of the ship had an english book found in the ship contrary to the laws there , which he was forewarned of , and knew the lawes , and the defendants husband was condemned to the gallies . yeares ; and sithence the plaintant , as well for his own reliefe , as for the reliefe of the defendant devised to obtaine license from her majesty , for transporting . tuns of bear , yearly for eight yeares , the commodity whereof to be equally between them ; and the bill exhibited to her majesty was in both their names , and the party of the charge ; but the defendant cautiously got the same altered into her own name , and hath sold the same away without yeelding the plaintant any profit ; the defendants doth demurre , because she is a feme covert ; it is ordered a subpoena be awarded against her to make a better answer : castleton plaintant , alice fitz-williams defend . anno . eliz. thomas iones made oath that a writ of injunction was left at the house of the defendant ; and the plaintant maketh oath the defendant hath proceeded in a suit in the kings bench contrary to an injunction ; therefore an attachment . bodnam plaintant , morgan defendant . an. . eliz. lower plaintant , crudge defendant , & uxor , & aliis defendants . peter prowse made oath the r. g. n. g. io. b. and others having notice given unto them of an injunction awarded out of this court against the defend have disobeyed the same ; therefore an attachment is awarded against them . anno . eliz. matthew davis made oath that the defendant was served with a billet of paper at the plaintants suit , and upon his appearance no bill in court against him ; therefore the plaintant is adjudged to pay the defend . s. costs ; griffeth & aliis plaintants , ap ienn , ap ienkins defendants . an. . eliz. the defendant maketh oath that all the parties are inhabiting , and dwelling within the jurisdiction of the marches of wales ; and for that it appeareth by the plaintants bill , that the matter therein contained is for a supposed lease , and for no title of land ; therefore the cause is dismissed , and the plaintant referred to take his remedy , before the commissioners of the marches of wales ; arden plaintant , veale , and veale defendants . an. . eliz. the defendant got a writ of priviledge as servant to the lord keeper , and removed two severall suits against him by the plaintant in london ; forasmuch as the lord keeper declared in open court , that the defendant is not now his servant ; therefore ordered that the said two severall causes be remaunded into london , and the defend . not to be allowed priviledge of this court : warren and clerke plaintants , ralph maynard defendant . an. . eliz. the plaintant seeketh to compell the defendants to make unto him a lease , by reason of a promise made by william allestre , and anthony bat , when they were bayliffes of the said town , and ordered that the corporation , nor any person which heretofore have been , nor which hereafter shall be bayliffes of the said town , shall in any wise be charged as bayliffes with the said promise ; but the plaintant if he will may take his remedy against the said allestre , and bat , not as bayliffes , but as common persons ; george strainger plaintant , beynbridge , and edward turnos late 's bayliffes of derby defendants . anno . eliz. nicholas dyer made oath that the defendant hath broken an order made in this court ; therefore an attachment against him ; margaret stephens plaintant , iohn bawden defend . anno . eliz. christopher almy , christopher frome , iames wood , & aliis inhabitants de magna ashley plaintants , iames pycroft defend . the matter being for hay , corne , and graffe upon oath not worth s. it is by order dismissed , for that it is of so small a value . an. . eliz. parrot & aliis plaintants , pawlet defendant ; the suite being for the benefit of the poore of drayton ; it is retained though under s. per annum . . eliz. forasmuch as richard s●odard justice , and portrive , and others his brethren of the borough of minxhead have certified under their common seale , that one nicholas hooper made oath before them for serving of a subpoena on the defend . who hath not appeared ; therefore an attachment is awarded . hooper & hooper plaintants , brace & uxor defendants . anno . eliz. meerefield plaintant , cleverden defend . upon certificate made by the major of torrinton of serving a subpoena , that affidavit was made before him , for serving it upon the defendant who hath not appeared ; therefore an attachment is awarded . anno . eliz. a decree was made for the plaintant for a coppyhold tenement , and yet the defendant put the plaintant out of possession , notwithstanding the said decree ; and the lord keeper did write his letters to the defendant , to suffer the plaintant to enjoy the same tenement according to the decree : lane plaintant , the lord howard viscount bindon defendant . anno . eliz. the defend . was examined upon interrogatories upon the breach of an order of this court , and departed without lycense ; therefore an attachment ; boyle & uxor plaintants , vivean defendant . an. . eliz. the defendant being served with a subpoena the last terme , and coming up out of cornwall to london , heard by common voyce , the terme was adjourned , and therefore did goe back againe , and the plaintant got an attachment against him , who hath appeared gratis , and put in his answer ; and therfor he shall be discharged of the attachment , paying s. to the plaintant for his costs : strangman plaintaint , vivean defendant anno . eliz. the question was for a liberty of common fishing , and ordered for the plaintant ; and upon affidavit made the defendants have broken the same , ordered an attachment shall goe against them ; bayliffes , burgesses , and commonalty of the town of yarmouth plaintants , william paston , & aliis defendants . an. . eliz. the plaintant and his father were bound to the defendant in l. to stand to the award of sir iames dyer knight , and lord chiefe justice , who arbitrated that the plaintant , who had the reversion in fee , and the father who had the estate for life , should make such assurance as the defendant should reasonably devise . the defendant did tender an assurance to the father to be sealed , who being old and blind , desired time to confer with his friends ; the plaintant upon request sealed the assurance , and his father afterwards sent word to the defendant he was willing to seale it , but the defend . answered he did not passe whether he did or no , because he had but an estate for his life , and the defend . had his bond to enjoy it during his life , which he did accordingly ; and yet neverthelesse the defendant put the bond in suite upon his fathers said refusall , but stayed by injunction : knight plaintant , hartwell defend . anno . eliz. a commission of rebellion for not payment of costs was awarded against the defend . to one iohn ap david , who did thereupon apprehend the defend . and for his more safe keeping delivered him to thomas moston esq. high sheriffe of the county of fl●nt , who took charge of the prisoner accordingly , and now refuseth either to deliver the prisoner to the commissioner , or to bring him himselfe into the court at the day ; day is therefore given to the said thomas moston the late sheriffe , to bring into this court the body of the said defend . by thursday next upon paine of l. evans clerke deane of saint asaph plaintant , ap rees , ap bennet defendants . anno . eliz. the defendant was served with a counterfeit subpoena , at the plaintants suit , but answered not because he was told the subpoena was counterfeit ; thereupon an attach . issued against him ordered , that as well the defendant be discharged of the attachment awarded against him as the said baily , who as the defendant made oath delivered the countefeit processe to him , to shew where , and of whom he had the subpoena : baily plaintant , hawle defend . anno . eliz. the suit was to cause the defendant to performe an award of arbitrators chosen by themselves , contrary to which award the defendant hath put in suite an obligation of l. wherefore an injunction was granted for stay of the suit ; and upon the defendants shewing his readinesse to perform the award , ordered that the said award shall be duly performed by both the said parties : reignolds plaint . latham def. a. . e. mathew carew one of the masters of this court plaintant , thomas burf●am defend . the defend . appearing this terme upon an attachment of priviledge at the plaintants suit hath put in baile ; and answered to the declaration of the plaintant : therefore the defend . is licensed to depart till . paschae next . an. . eliz. richard champion a commissioner in a commission of rebellion returned a rescue against guy bonvill , which being examined , and his examination referred to two masters of the court , was found to have confessed the rescue ; whereupon he was committed to the fleet , and yet afterwards brought his action upon the case at the common law , against the said champion for his false returne ; ordered that a subpoena be awarded against the said guy bonvill , to shew cause why an injunction should not be awarded against him for stay of his action upon the case ; but afterwards , viz. . eliz. the defendant was allowed to goe forward in his action upon the case at the common law , because either of the parties there may plead his matter ; ioan bonvill widdow plaintant , bonvill and mary billinghay defendants . an. . eliz. the plaintants exhibited a frivilous bill without a counsellors hand , and got an injunction for stay of any suit to be commenced in any of her majesties courts , but in this , which subpoena and injunction being served seemed to be counterfeit ; therefore ordered a subpoena be awarded against the plaintants , as well to shew of whom they had the said writ , and to answer their misdemeanors , as also to pay the defend . costs for his unjust vexation ; iohn ap edward , ap hugh , and david ap howel , ap ienkin plaintants , ralfe ienkin defendant . an. . eliz. the defendants made oath they were served with billets of paper at the plaintants suit , and upon their appearance no bill in court against them ; therefore the plaintant is adjudged to pay the defendants s. costs ; edmund williams plaintant , evan williams , david morgan , and merrick gran●owe defendants . an. . eliz. brown alias garris , alias pawdy plaintant , stuit defendant made oath that he was served with a billet in paper , and upon his appearance no bill in court , and the defendant hath lost the billet of paper , and yet costs is awarded . anno . eliz. the defendant put in a demurrer to the plaintants bill , without shewing any cause of his demurrer ; it is therefore ordered that a subpoena be awarded against him to make a better answer ; offeley plaintant , morgan defendant . anno . eliz. the matter complained of by the bill is for l. debt for fish , therefore dismissed ; foord & foord plaintants , & richards defendant . anno . eliz. symonds brocebridge made oath that the said elizabeth and anne , two of the defendants are above the age of . yeares a peece , and that the said william was comming up to london in his company , and they were both robbed , and william his horse taken from him , whereby hee could not come to make his appearance ; therefore a commission is granted to take all the said defendants answers in the countrey : hill plaintant , elizabeth worley widdow , william stapleton , and anne his wife defendants . anno . eliz. memorand . that the . day of february last , sir nicholas bacon knight , lord keeper of the great seale of england dyed at york house , and the seale being the same day sent for by the lord treasurer , remained with the queenes majesty till the . day of april last , on which day the same was delivered to sir tho. bromly knight , lord chancellor of england . paschae . . eliz. whereby an order of the . of feb. last , a subpoena was awarded against the defendant , to shew cause wherefore an award therein mentioned should not be ratified : now mr. flowerdew of councell on the defendants behalf informeth , that the said award was not made by any order of this court ; and therefore desired that the said defend . may not be compelled to performe the same . it is ordered that councell on both sides shall attend the morrow sevennight , and then order shalll be taken ; barkley miles plaintant , moore defendant . anno . eliz. the plaintant exhibited his bill as a priviledged man to sir francis kempe , prothonotary of this court , for lands lying in the county palatine of chester ; and for that it appeared by letters patents openle shewed in court , under her majesties great seale of england , that this court by any priviledge should not hold plea of any lands lying within the said county palatine , it is therefore ordered to be dismissed , if the plaintant shew not good cause : william lomley plaintant , thomas greene , thomas marlow , robert taylor , and iames wagge defend●nts . an. . eliz. the plaintant was adjudged to pay the defen. s. d. costs , for that he being served with subpoena in hillar . terme appeared , and by his answer disclaimed ; and yet after the plaintant served him with a subpoena to rejoyne ; but afterwards the same cost● were discharged by motion , for that the defendant had before the costs put in his rejoynder , but upon a disclaimer no costs is to be allowed : read plaintant , hawstead alias lane defendants . anno . eliz. the defendant was taken upon a commission of rebellion at the plaintants suite , required his costs to be allowed him , the court asking the opinion of the clerkes , it was agreed with one consent , that he should have his costs allowed ; therefore ordered accordingly : morgan plaint . ap iohn gowge defendant . anno . eliz. the defendant maketh oath that he was served with a billet in paper at the plaintants suit , which billet he lost by misfortune ; and upon his appearance no bill is in court against him ; therefore costs is awarded : brown , alias garris , alias pawdy plaintant , stoyck defend . anno . eliz. the plaintant exhibited his bill to examine witnesses in perpetuall memory , touching a lease of lands , which hee and those by whom hee claimeth , hath enjoyed . yeares ; the defendant by answer claimeth the lands as coppy-hold of inheritance to mr. sowthwell , who is owner of the inheritance , and within age ; and therefore prayed that no witnesses might be examined , till mr. southwell be of full age ; and yet because the witnesses being old , and may dye in the interim , therefore a subpoena is awarded against the defend . to shew cause why a commission should not be granted : hearing plaintant , fisher defendant . an. . eliz. iohn budden maketh oath that the defendants confessed unto him they were served with a subpoena at the plaintants suite and have not appeared ; therefore an attachment is granted : perry ar plaintant , gatter alias sharde , and cole defendants . an. . eliz. upon the hearing of the matter for the mannor of laughtor , and the advowson of the church of laughton , in the county of bucking . it appeared that the defendants and they from whom they claimed , have beene in possession yeares with divers discents ; therefore the defendants are dismissed : kinston plaintant , pigot & aliis defendants . anno . eliz. the defendant in hillar . terme made oath that he could not answer without sight of evidences in the country ; and having day given him he now hath put in no answer , but a demurrer contrary to the orders of this court ; therefore an attachment is awarded against the defendant : farmer & aliis plaintants , fox defendant . anno . eliz. iohn harry made oath for the serving of a subpoena on the defendants to rejoyn ; therefore munday next is given to the defendants to rejoyne or else to lose the benefit thereof : ioanes & aliis plaintants , whitney , miles , & aliis defendants . an. . eliz. whereas a commission issued out to examine witnesses on both parties , which is returned executed upon oath made by giles brever , that he served precepts from the commissioners upon w. s. tho. lin . t. c. and io. peers to be examined on the defendants behalf before the said commissioners who appeared not ; it is therefore ordered that a new commission be awarded to the former commissioners at the defendants charge , as well to examine the said four witnesses as any other : shepheard plaintant , shepheard & aliis defendants . an. . eliz. the duke of northumberland acknowledged a recognizance of markes to the lord crumwell , and after granted certaine lands to the defendant ; afterwards both the duke , and the lord cromwell were attainted of treason , whereby the recognizance came to the queen , and in her name was put in suit by one lane , to whom her majesty had granted the same recognizance , who sought to extend the defendants said lands alone , whereas there are divers other lands to a great valew in other mens hands lyable to the said recognizance ; therefore it is ordered that no liberate goe out upon the said extent untill the court order the same : the queenes majesty plaintant , colborne defendant , anno . eliz. the plaintant sought to be relieved upon an obligation of l. which he entred into to make a joyneture unto his wife , in consideration of l. promised to him by the defendant in marriage , which was never paid unto him ; therefore an injunction is awarded , if cause be not shewed : osborne plaintant , havers defend . an. . eli. the plaintant and defendant both joyned in commission to examine witnesses , and the plaintant having the carriage of the commission , did not execute the same , but did examine witnesses here in court ; therefore ordered the defend . should have a new cōmission to the former commissioners , wherein the plaintant might also examine if he list ; and at the returne thereof publication , and in the meane time publication is stayed : mackworth plaintant , swayefield , & aliis defendants . an. . eliz. a frivolous bill was exhibited against the defendant , without a councellors hand ; and therefore ordered the defendant should not answer , untill a councellors hand we●e put to the bill , and the contempt for not answering is suspended : farly plaintant , childe defendant . an. . eliz. the defendant made oath that the lands complained of by the plaintants bill is under s. per annum , therefore dismissed : pottinger plaintiffe , cogayne defendant . anno . eliz. the plaintiffe sued here to be relieved for a least of one thousand yeares of certaine lands , and depending the suite , the defendant by quo minus out of the exchequer , being tenant of other lands to the queene , brought an ejectione firme against the under tenants of the plaintant ; therefore an injunction to stay the said suit of quo minus if cause be not shewed : ioanes & aliis plaintants , whitney miles , & aliis defendants . anno . eliz. the plaintant made oath for the serving of a subpoena on mary cavendish , iohn gilgate , william pipe , and edm●nd stiles , to appeare before commissioners to be examined on his behalfe ; therefore an attachment is awarded against them : turnor plaintant , warren defendant . anno . eliz. iohn quippe made oath the defendant confessed he was served with a subpoena for costs , and hath not paid it ; therefore an attachment : suell plaintant , rogers defendant . anno . eliz. the defendant since the bill exhibited , commenced severall suites at the common law for the cause here complained of against the plain●ant , and his under tenants ; therefore an injunction is awarded against him : thorough good plaintant , may & aliis defendants . anno . eliz. the defendant demurred generally without shewing any cause of his demurrer : therefore ordered if he shew not , good cause of his demurrer upon f●iday next a subpoena is awarded against him to make a better answer : peachie plaintant twyecrosse defendant . anno . eliz. it is ordered that if the plaintants doe charge the defendants by their bill for the issues and profits of lands , which do lye in the county of lancaster , meerely by way of account , then the defendants shall not be compelled to answer ; if the defendants be charged in respect of their promise , then they are to answer : wingfield miles & uxor plaintants , fleetwood & aliis defendants . anno . eliz. the suit was for certaine rents , fines , and woodsales received by the defendants testator during the plaintants minority . it appeared that if the plaintant had made good proofe , hee was to be relieved ; therefore a commission is awarded by consent : borrough plaintant , a. b. defendant . anno . eli. the kings order and decree in chancery for a rule to be observed by the chancellor in that court exemplified and enrolled for a perpetuall record there . anno . iames by the grace of god , &c. whereas our right trusty and welbeloved sir francis bacon knight , our councellor and attorney generall , received a letter from our chancellor of england , dated the . of march , an. dom. . written by our expresse commandment , directing him , and requiring him , and the rest of our learned councell , to peruse such presidents as should be produced unto them from time of k. henry the . and since of complaints made in the chancery , there to be relieved according to equity , and conscience after judgements in the courts of the common lawes , in cases wherein the judges of the common law could not relieve them : and thereupon to certifie us of the truth of that they shall find , and of their opinions concerning the same , which letter followeth in these words . master atturney , his majesty being informed , that there be many presidents in the court of chancery , in the time of king h. . and continually since , that such as complained there to be relieved according to equity and conscience , after judgements in the courts of the common law , in cases where the judges of the common law could not relieve them ( being bound by their oath , to observe the strict rules of the law ) is willing to understand , whether there be such presidents as he is informed of : and therefore hath commanded me to let you know , that his will and pleasure is , that you call to assist you his majesties serjeants , and sollicitor , and to peruse such presidents of this kind , as shall be produced unto you ; and thereupon to certifie his majesty of the truth of that you shall finde , and of your opinions concerning the same ; and for your better directions therein , i have sent you here inclosed a note in writing delivered unto me , mentioning some such presidents in king h. the . time and since . and i am told that there be the like , in former times ; his majesty expecteth your proceeding in this with as much speed as conveniently you may : and so i rest , your very assured loving friend . t. ellesmere canc. at york house . . martii , . and whereas our attorney generall , and the rest of our learned councell did thereupon returne unto us their certificate , subscribed withal their hands according to our commandment , and direction given them by the said letter , which certificate followeth in these words ; according to your majesties commandment , we have advisedly considered of the note delivered unto us , of presidents of complaining and proceeding in chancery after judgements in common law ; and also have seene and perused the originals , out of which the same note was abstracted , upon all which we do find , and observe the points following . . we find that the same note is fully verified , and maintained by the originals . . we find that there hath beene a strong current of practise of proceeding in chancery after judgement , and many times after execution , continued from the beginning of h. . raign , unto the time of the lord chancellor that now is , both in the raignes ( separatim ) of the severall kings , and in the times of the severall chancellors , whereof divers were great learned men in the law : it being in cases , where there is no remedy for the subject , by the strict course of the common law , unto which the judges are sworne . . we find that these proceedings in chancery , hath been after judgements , in actions of severall natures , as well reall as personall . . we find it hath beene after judgements in your majesties severall courts , the kings bench , common pleas , justice in oyre , &c. . we find it hath been after judgements obtained upon verdict , demurres , and where writs of error have beene brought . . we find in many of the cases , that the judgements are expresjudgementsly mentioned in the bills in the chancery themselves to have been given , and reliefe prayed thereupon , sometimes for stay of execution , sometimes after execution , of which kind wee find a great number in king h. the . his time . . we find the matters in equity , layed in such bills in most of the cases , to have been matter precedent before the judgements , and not matter of agreement a●●●● . . we find in the said cases , not onely the bill preferred , but motions , orders , injunctions , and decrees thereupon , for the discharging , and releasing of the judgements , or abiding the possession thereupon obtained , and sometimes for the meane profits , and the release of the costs , &c. . we find in some of the cases in this very point , that judgement hath been given , hath been stood upon by the defendants , and alleadged by them by way of demurrer , and overruled . . we find that the judges themselves in their own courts , when there appeared unto them matter of equity , because they by their oath and office , could not stay the judgements , except it be for some small time , have directed the parties to seeke reliefe in chancery . . we find that this hath not onely been in the times of the severall chancellors , but by the judges themselves , and that without difficulty , when they sate in chancery in the vacancy , or absence of the chancellor . . we find the hands of sundry principall councellors at law● whereof divers of them are now judges , ●●d some in chie●e place in bills of this kind . . lastly here were offered to have beene shewed unto us many other presidents , whereof we heard some read , and found them to be of like nature with those contained in the note . francis bacon , randell crew . henry mountague , hen. yelverton . and whereas also our said attorney received one other letter from our said chancellor , with a case there inclosed , written likewise by our expresse commandment , dated the . of march , directing , & requiring him , and the rest of our learned councell , together with the attorney of our deare sonne the prince , to confer together upon the said cause , and to consider advisedly of al the parts thereof ; and thereupon to peruse all the the statutes of praemunire , or provisoes , and all other statutes● as they shall conceive to be necessary to be considered of , for the resolving the question propounded in that case ; and thereupon to report unto us their opinions in writing concerning the same ; which letter and case there inclosed follow in these words . master attorney , his majesty hath perused this case inclosed , and hath commanded me to send it to you ; and his will and pleasure is , that you call unto you mr. sarjeant mountague , mr. sarjeant crew , mr. sollicitor , and mr. walter the princes attorney , and you confer together thereupon , and con●ider advisedly , and deliberately of all the parts thereof ; and thereupon to peruse all the statutes of praemunire or provisors , and all other such statutes as you shall conceive to be necessary to be considered of , for the resolving the question propounded in this case , this his majesty would have be done with mature deliberation , and yet with as much speed as conveniently you can ; and when you have sufficiently informed your selves therein , then to report to him your opinions in writing ; and so i committ you to god and rest , your very loving friend , t. ellesmore canc. at york house the . of march , . a. hath judgement and execution in the kings bench , or common pleas , against b. in an action of debt of l. and in an ejectione firmae , of the mannor of d. b. complaines in the chancery to be relieved against those judgements according to conscience and equity , allowing the judgements to be lawfull and good by the rigour and strict rules of the common lawes ; and the matters in conscience and equity such as the judges of the common law ( being no judges in equity , but bound by their oathes to doe the law ) cannot give any remedy or reliefe for the same , either by error or attaint , or by any other meanes . questio . whither the chancery may relieve b. in this or such like cases , or else leave him utterly remedilesse and undone ; and if the chancery be restrained by any statute of praemunire , &c. then by what statute , or by what words in any statute is the chancery so restrained , and conscience and equity banished , excluded and damned ? and whereas according to our said commandment , our said learned councell , and the attorney of our deare son the prince , returned unto us a certificate of their opinions upon the said statutes under all their severall hands concerning the same case , which certificate followeth in these words . according to your majesties commandment , we have deliveratly advised of the case sent unto us by the lord chancellor ; and of the statutes as well those of praemunire as others , as far as we take it may concerne the case ; and for our better information therein , wee have thought fit to send for , and peruse the originall records themselves remaining in the tower of london , of those statutes not onely appearing upon the roll of parliament with the kings answers , which is the warrant to the roll of parliament . we have also taken into consideration as well booke lawes , as divers other acts of parliament , which may give light unto the statutes , whereupon the question properly growes , together with such ancient records and presidents as we could find , as well those which maintaine the authority of the chancery , as those which seeme to impeach the same ; and upon the whole matter we are al of opinion , that the chancery may give reliefe to the case in question ; and that no statute of praemunire , &c. or other statute restraines the same . and because we know not what use your majesty will be pleased to make of this our opinion , either for the time present or future ; we are willing to give some reasons of the same , not thinking fit to trouble your majesty with all those things whereupon we have grounded our selves , selecting out some principall things , which moved us to be of this opinion , to the end this same may be a fuller object of your majesties princely judgement , whereunto we alwayes submit our selves . and first we must lay for a sure foundation , that which was contained in our former certificate , concerning the continuall practise , by the space now of six score yeares , in the times of king hen. the . king hen. the . king edward the sixt , queene mary , and queene elizabeth of this authority ; and that in the time , when the same authority was mannaged , not onely the bishops which might be thought lesse skilfull , or lesse affectionate towards the lawes of the land , but also divers great lawyers , which could not but know and honour the law , as the meanes of their advancement , sir thomas more , and the lord audly , the lord rich , sir nicholas bacon , sir thomas bromley , and sir iohn puckering ; and further that most of the late judges of the kingdome , either as judges when they sate in chancery by commission , or as councellors at law , when they set their hands to bills , have by their judgement and councell , upheld the same authority ; and therefore for as much as it is a true ground that optimus legum interpres consuetudo , especially when the practise or custome passeth not amongst vulgar persons , but amongst the most high and scient magistrates of the kingdome : and when also the practising of the same should lye under so heavy a paine as the praemunire : this is to us a principall and implicit satisfaction ; and those statutes ought not to be construed to extend to this case ; and this of it selfe , we know , is of far more force to move your majesty , then any opinion of ours , because kings are fittest to informe kings , and chancellors to teach chancellors , and judges to teach judges ; but further out of out own science and profession , we have thought fit to adde those further reasons and proofes very briefely , because in case of so ancient a possession of jurisdiction , we hold it not fit to amplifie . the statutes upon which the question grows , are principally two ; whereof one is a statute of praemunire , and the other is a statute of simple prohibition ; that of praemunire is the statute of . e. . cap. . and the statute of the simple prohibition is the statute of . h. . cap. . there are divers other statutes of both kinds ; but the question will rest principally upon those two , as we conceive it . for the statute of . e. . it cannot in our opinions extend unto the chancery , for these reasons . . first out of the mischiefe which the statute provides and recites , viz. that such suites and pleas ( against which the statute is provided ) were in prejudice and disinherison of the king and his crowne , which cannot be applyed to the chancery : for the king cannot be disinherited of jurisdiction , but either by a forreigner , or by his subject ; but never by his own court . . out of the remedy which the statute points ; viz. that the offendors shall be warned within two moneths , to be before the king and his councell , or in his chancery , or before the kings justices of the one bench , or of the other , &c. by which words it is opposite in it selfe , that the chancery should give both the offence and the remedy . . out of penalty which is not only severe , but hastily , namely that the offenders shall be put out of the kings protection , which penalty altogether savors of adhering to f●rreine jurisdictions , and would never have been inflicted upon an excesse onely of jurisdiction in any of the kings courts as the court of chancery is . . out of the statutes precedent and subsequent . e. . cap. . and . r. . cap. . which are of the same nature and cannot be applyed but to forraigne courts ; for the word alibi , or elsewhere is never used , but where rome is named specially before . . the disjunctive in this statute ( which onely gives the colour ) viz. that they which draw any out of the realme in plea , whereof the cognizance pertaineth to the kings court ( or ) of things whereof judgements be given in the kings court , or which doe sue in any other court , to defeat or impeach the judgements given to the kings court ; this last disjunction wee said ( which must go farther then courts out of the realme , which are fully provided for by the former branch ) hath sufficient matter and effect to work upon in respect of such courts , which though they were totally within the realme , yet in jurisdiction were subordinate to the fo●reigner such as were the legates court , the delegates court , and in generall all the ecclesiasticall courts within the realme at that time , as it is expressely construed in the judges , . e. . fol. . . in this the sight of the record of the petition doth cleare the doubt , where the subjects supplicate to the king to ordaine remedy against those which pursue in other courts then his own against judgements given in his court , which explaines the word ( other ) to be other then the kings courts . . with this agreeth notably the book of entries , which translates the word ( in other court ) not in alia curia , but in aliena curia . . this statute of vicesimo septimo , e. . being in corroboration of the common law ( as it selfe recites ) we doe not find in the register any presidents of the writs of adjura regia , which are framed upon chiefe cases that were afterwards made penall , by the praemunire , but onely against the ecclesiasticall courts . . lastly we have not found any president at all , of any conviction upon the satutes of praemunire of this nature for suits in chancery , but onely two or three bills of indictment preferred , sed nihilinde venit , for ought appears to us . for the statute of h. . that we doubt was made against proceeding within the realme , and not against forraigne ; and therefore hath no penalty annexed , neverthelesse we conceive that it extends not to the chancery in the case delivered , for these reasons . . first this statute recites where the parties are made to come upon grievous paine , sometimes before the king himselfe , sometimes before the kings councell , and sometimes in the parliament to answer thereof anew , &c. where it appeareth that the chancery is not named , which could not have been forgotten , but was left out upon great reason , because the chancery is a court of ordinary justice for matter of equity ; and the statute meant onely to restraine extraordinary commissions , and such like proceedings . . this appeares fully by view and comparing the two petitions , which were made the same parliament of . h. . placed immediately the one before the other . the first which was rejected by the king , and the second , whereupon this statute was made ; whereof the first was to restraine the ordinary proceedings of justice , that is to say in the chancery by name , in the exchequer , and before the kings councell by processe of privy seal ; unto which the king makes a royall and prudent answer in these words : the king will charge his officers to be more sparing , to send for his subjects by such processe then heretofore they have beene ; but notwithstanding it is not his mind , that the officers shall so far obtaine , but that they may call his subjects before them , in matters and causes necessary , as it hath beene done in the time of his good progenitors ; and then immediatly followes the petition , whereupon the act now in question was made , unto which the king gave his assent , and wherein no mention is made at all of the chancery or exchequer . . if the chancery should be understood to be within the statute , yet the statute extends not to this case ; for the words are , that the kings subjects are driven to answer thereof anew , which must be understood , when the same matter formerly judged , is put in issue or question againe , but when the cause is called into the chancery only upon point of equity , there as the point of equity was never in question in the common law court , so the point of law or of fact ( as it concernes the law ) is never in question in the chancery ; so the same thing is not twice in question , or as answered anew : for the chancery doth supply the law , and not crosse it . . it appeareth to our understanding , by the cause of errour , and attaint in the same statute , what jurisdiction it was that the statute meant to restraine , viz. such jurisdiction as did assume to reverse and undoe the judgement , as error or attaint doth , which the chancery never doth , but leaves the judgement in peace , and onely meddles with the corrupt conscience of the party ; for if the chancery should assume to reverse the judgement in the point adjudged , it is void as appeareth . e. . f. . . we find no presidents of any pro●ceeding to conviction or judgement upon any indictment framed or grounded upon this statute , no more then upon the statute of praemunire ; and the ●ate indictments are contra diversa statuta not mentioning the particular statutes . . lastly , it was a great mischiefe to force the subject in al cases to seek remedy in equity , before he knew whither the law will help him or no , which oftentimes he cannot do till after judgement , and therefore he is to seek his salve properly , when he hath his hurt . there be divers other things of weight which we have seene and considered of , whereupon we have grounded our opinion , but we goe no further upon that we have seene . but because matters of presidents is greatly considerable in this case , and that we have been attended by the clerks of the chancery , with the presidents of that court , and have not been yet attended by any officer of the kings bench with any president of judgements , if it shall please your majesty faithfull report of them , as we have done of the other ; all which &c. francis bacon , hen. mountague . randall crew , hen. yelverton . iohn walter . now forasmuch as mercy and justice be the true supports of your royall throne ; and that it properly belongeth to us in our princely office , to take care and provide , that our subjects have equall and indifferent justice ministred to them , and that where their case deserveth to be relieved in course of equity by suit in our court of chancery , they should not be abandoned , and exposed to perish under the rigor and extremity of our lawes ; we in our princely judgement having well weighed , and with mature deliberation considered of the said severall reports of our learned councell , and of all the parts of them , doe approve , ratifie , and confirme as well the practise of our court of chancery expressed in the first certificate , as their opinions for the law upon the statutes mentioned in their latter certificate , the same having relation to the case sent them by our said chancellor ; and doe will and command , that our chancellor , or keeper of the great seale for the time being , shall not hereafter desist unto our subjects upon their severall complaints ( now or hereafter to be made ) such reliefe in equity ( notwithstanding any former proceedings at the common law against them ) as shall stand with true merits and justice of their cases , and with the former ancient and continued practise and proceeding of our chancery ; and for that it appertaineth to our princely care and office onely to judge over all our iudges , and to discerne and determine such differences as at any time may or shall arise between our severall courts , touching the jurisdictions , and the same to settle and decide as we in our princely wisdome shall find to stand most with our honor , and the example of our royall progenitors , in the best times , and the generall weale and good of our people , for which we are to answer unto god , who hath placed us over them : our will and pleasure is , that our whole proceedings herein by the decrees formerly set down be inrolled in our court of chancery , there to remaine of record , for the better extinguishing of the like questions or differences that may arrise in future times . per ipsum regem . fran. bacon . hen. yelverton . decimo octavo iulii . anno . r. regis , &c. finis . notes, typically marginal, from the original text notes for div a e- payment after the day upon bonds holpen . condition to undoe estates in lands . giving day to one , it shall help the other . payment without acquittance . lessees damages in waste moderated by the death of the lessor . the greater part of the debt paid , and the rest offered , relieved in chancery . purchasor of parcell of land not snbject to the whole rent charge . suing in a wrong county . copyholders . not to examine any judgement given at the common law . dyer , ● . and . atturnement . atturnement denyed but in some cases . fine● , recoveries , &c. mulier , and bastard . warranty . extent● , lawes . nudum pactum . wager of law . no seizin of a re●t . seck . possessio so oris in cop●yhold . copyhold . possession of the mother for the h●r collaterall . copyhold devise . copyhold forfeited for cutting of trees , during ▪ minority . tenant right fines for alienation of the tenant , but not of the lord . payment of creditors out of a copyhold forfeited by morgage . lease paroll . marriage po●tion recovered at common law , and reversed in the exchequer , holpen in chancery . perpetuities . lease for yeares . statute lands bought with money lent , pr●o●ity ●ans covyn . bailement sans consideration countermanded . voide limitation de lease in vol. cook lib. . . ravishment de g●rd . survivor in joynt . tena●cy de lease . feoffees to use . notice of the use . if my feoffee dye i have no remedy against his heir . the feoffee shall doe acts for the feoffors good . they may grant offices , but not annuities . fees to councell . money given to buy lands . the feoffee shall retain the land to his own use fur-attain der de felony . intent specified in a feoffment to use . uses of gavell kinde at the common law . . h. . dy. . cesti que use ) de tearme de ans. jurament . delatum a parte . aequitas sequitur legem . things left to the conscience of the party . help in chancery against executors . surety . the surety chargeable . to help the surety . no other reliefe for the surety , then for the principall . purchasor . fraud upon fraud . feoffee punishable for making estate at the wives request during the coverture . no reliefe against his own deed . release of joint feoffee . subpoena gainst one appointed by will to sell . to discharge himselfe of a bond is permitted in equity . forced to sue an obligation . executor shall not release a bond without his co-partner . executors shall not answer without his copartners . copartners to joyne in plea or presentment . one deed by which two claime severally . where remedy at common law , no help here . goods of felons granted which are difficult to prove . bringing evidence into court . justifying detaining of evidences . tenants of the land uncertaine . tenants in common to know the certainty supply of true meanning in feoffments . to bring in an obligation to be cancelled . money paid upon obligation single , or single statute not compelled here to cancell it . yet upon a morgage , he shall be compelled to bring in the indenture to be cancelled here . lands sold in two counties and livery made onely in one . leassor to have the woods leaving sufficient boote● . messuage cum pertin. carries the land used with it . mannor demised , except the court baron . fraud or covyn in goods . grand lease forfeited by covin. laesione fide● canonica i●●uria . conu●ee . to avoid future perjury . payment for the principall by the surety . deeds brought into the court . waste hol . pen in chancery . tulier and bastard ione●n suing ●heir livery . action of the case seeketh dammages , subpoena rem ●psam . fines fraudulent . executors how upon trust . no reliefe against a voluntary act . joint tenants , one taking the profits . defendant examined as a witnesse . generall customes reduced to certainty by agreement in a mannor . statute acknowledged in my name by a stranger . power to make leasses . coppyhold tayled surrender . abating a bill . leases devised to his wife , on confidence to come to his son not relieved . possession bound by decree , and the partie prohibited to sue at common law . grantee distrains one who prayeth reliefe , ordered he sue the rest , and the grantee , the one to contribute , and the other to accept of equality . contents of ● mannor as it was . years past . executrix hu●band ●rdered to pay debts . plaintant mistaking his title in his bill . l●easses conv●yed in trust to pay debts . heire of purchasor charged with payment of money behinde for the land . proceedings in a cause where there is no full proofe . coppy good by devise without mention of surrender . turning of water courses from mills . holpen . waste forbidden in chancery , where not punishable at law . archbishops certificate against bloomer for not paying a maides portion . witnesses ad informand . conscientiam . five pound costs given in a demurrer , and the councellor prohibited to deale any more in chancery ▪ fines of coppyholds how ordered in chanry . lease paroll . promises . witnesses . proceeding on the sta●tute for charitable uses . lands intended to be given to a schoole after otherwise disposed by will . cuttings case , no help in chancery touching power to make leases . decree against infants . amending of answers . misdemeanor in commissioners how to be reformed . deeds how to be proved leases of corporations , whe●ein their names are mistaken by themselves . leassee to be holpen in chancery against pattentees . chancellor calling the judges into the exchequer chamber upon remainders of a lease . costs against the defendant , and clerk tha● made processe before a bill in court . publication of witnesses in perpetuam rei memoriam a yeare past . consil. consil. the manner of entring decrees in times past . dismissions and the manner of entri●g them . oath made for serving a subpoena before witnesses examined in perpetuall memory . consilio . commission to examine in perpe●uall memory . consilia . costs for a witnesse served to testifie before the major of london . publication of witnesses to be used at a court baron . injunction to stay proceedings in judgement , or execution . fem●sole takes out a subpoena , and then marryeth , and serveth it , she and her husband pay costs . commission to take the defendants answer upon a languidus returned . injunction to put the defendant in such possession as he had at the time of the bill exhibited . jurisdiction of wales rejected . consil. injunction to stay suite of execution of land which he agreed not to doe . injunction with a clause ( si ita sit ) a gardian admitted to the defendant infant . a commission to put the plaintant in possession , injunction being dissolved or disobeyed ▪ the defendant enjoyned in open court not to proceed in his action . attachment against the defe●dant , and a subpoena against one supposed to beat the server . the plaintant was in execution at the suite of the king , and being no just cause therefore , he was delivered by supersedeas . the husband and wife defendants , he onely appears and demurs , attachment against both . a demurrer put in , and the defendant appeared not in person , a subpoena to make direct auswer . attorney at law enjoyned not to proceed or call for judgement . an injunction granted for not appearing , and to stay proceedings at the common law . a commission to examine witnesses upon oath of impotency . a defendant appearing gratis , an attachment being out was committed . the defendant served with a subpoena the day of the returne . an injunction to discharge an execution for that the defendant being served did not appear . a witnesse served to testifie , pressed for a souldier , attachment is stayed . injunction ( si ita sit ) to stay judgement and execution . injunction to stay proceedings before action brought . a commission to the examinor of the court to examine w●tnesses . a subpoena to appeare before the major and aldermen of london for an orphans portion . an order for bringing evidences into court . decrees and dismissions entred at large , a writ of priviledge granted to a suter . the sheriffe amersed l. for returne non est inventus , upon an attachment having bin in presence of the party . the attorney ordered to stay proceedings , the defendant proceedeth ; injunction to bring in the money levyed , and to answer the contempt . injunction for the defendants possession . injunction to stay all procee●ings at common law . the defen. examined upon interrogatories , and if the ▪ matter appeare not for the plaintant , then he to pay costs , and the cause dismissed . defendant dismissed with costs , the plaintant not appearing at the hearing . decreed that the defendant shall acknowledge satisfaction of a judgement . a dec●ce for a fould-cou●se or common of pasture , two defendants contend for a tenement the tenant paying his re●t into the cha●cery i● discharged . setting down depo●itions in a wrong ●en●e suppressed , and the witnesses examined againe . i●junction for the plaintants possession as at the time of the bill , and three yea●es before . an award made by justices of assize ordered to be performed . injunction to stay suits i● the plaintant bring l ●●to court ; execution to st●y for the rest . witnesses examined by commission before answer , in regard they were old . the plaintant after bill , answer , and replication distraineth for which an injunction is granted . certiorare to remove the suite from the chancery of durham into this court . injunction to stay judgement upon certificate of the justices of assizes . injunction dissolved if cause be not shewed . injunction to stay the defendants suit at law , because he began in chancery . the plaintant being in execution upon a statute , was delivered upon recognizance . the plaintant had execution for l. and ordered to take execution for l. onely . a de vilaica removenda , for part of a personage and an injunction for the house . injunction for the corn sowed upon a lease paroll . decree for s. d. rent service and suite of court . the plaintant marrie● before answer , and no advantage taken , therefore no bill of revivor . advowson passeth not by livery , within view of the church without deed , there being incumbent . a ducens tecum to bring in deeds , but ordered to be delivered to the usher of the court not to the plaintant . the defendant took a commission and returned a demurrer , ordered to answer . attachment for not performing a decree . the defendants executors to their father being gardian in socage to the plaintant , are ordered to answer for profits taken by him . subpoena delivered to the defendants wife in his house sufficient . a years value allowed upon surrender of copy hold land . the plaintant sueth for tokens he delivered to the defendant as a suiter in marriage , and obtaineth them . a bill against a copy of court roll indirectly entred , the defendants demurre , but ordered to answer . variance in a bill of revivor from the first bill dissolved . jurisdiction of oxford rejected , one of the defendants , being not resident there ▪ prosecuting contempt after a generall pardon to pay costs . subpoena hanged on the door of an house , where the defendant resorted . witnesses examined by fraud suppressed and the practizers to be proceeded against by bill . jurisdiction of lancaster allowed . suit to have the defendant performe an award . two defendants , the one taketh a husband , the plaintant puts in a bill of revivor against husband and wife , and they discharged with cost● ▪ the plaintant o●dered not to proceed , till he make one a party , whom the defendant prayeth in ayde . injunction left at the defendants house , and disobeyed , an attachment . a commission of rebellion , the bond made to the commissioners . the bond made to the lord chancellor , &c. witnesses examined after publication , ad informandum conscientiam iudicis . costs for want of a bill , shewing the subpoena , but delivering no note of the d●y of appearance , and attachment for such serving . jurisdiction of chester allowed . a covenant to repaire a house , the defendant would not suffer it and demurred , but ordered to answer . jurisdiction of chester allowed . a subpoena served , to testifie in the guild-hall , and not appearing an attachment . a bill against roger hall , and another roger hall was served , he must shew it by plea , and not by motion . costs to witnesses served to testifie . costs paid to a witnesse before he be examined . a solliciter served with processe to testifie , ordered not to be examined . a man and wife exhibite their bill , the wife dyes , the defendant demurs for that there is no bill of revivor , ordered to answer . the sollicitor served to testifie , is discharged . consili● . the leasses of a copyholder is punishable in waste , though the copyholder himselfe be not . a bill of perjury proceeded in this court . suite to have an award by assent , decreed . to stay suit in the spirituall court . suite for common of pasture and turbary . subpoena delivered to the defendants servant . subpoena served at the s●●te of a● unknown man , and no bill in court , the server to pay costs . the husband appeares , and the wife not attachment against them both . jurisdiction of oxford . consil. a mr. and examinor , examined witnesses , publication stayed after granted . the plain . father seized in fee , with a condition to reenter deviseth for life , a ducens teci● the defendant licensed to depart after issue . trustee ordered to co●vey the lands according to the trust . jurisdiction of the excheqner rejected , for that one of the defendants had no priviledge there . the defend . in a bill of perjury after answer , ought to be examined upon interrogatories . the plaint . requires the defendant to appear , shewing no writ , and no bill in court , hath s. costs . affidavit for serving a subpoena . the defend . hath no cost because the subpoena is lost , but attachment is stayed . costs for want of a bill . the defend . disclaiming , no witnesses to be examined , touching the death of another . the defen. bound to pay money at one place , pleads payment at another , not good . a demurrer to a bill of revivor ordered to answer . the wife after the death of her husband , sueth a bill of revivor and good . to take bond of such as appear upon contempt , to attend from day to day . the defen. demurres for that there is remedy at common law , but ordered to answer . habeas corpus to the warden of the fleet , to have the defendant in court , to be charged with a debt upon a recognizance . costs for the solliciters charges , in making affidavit for serving processe , and the defendants impotency , no bill being in court . costs for want of a bill upon shewing the writ , but not delivering it . attachm . discharged , and a bill of perju●y for procuring it indirectly . the lord chancellor writ his letters to a noble man , that had broken a decree . injunction against the spirituall court . attachment upon the defendants confession he was served . jurisdictio of oxford allowed ▪ decree for copyhold lands . costs for want of a bill , the subpoena being lost . dismission because under s. per annum . jurisdiction of wales allowed , being under five pound . suit retained after judgement and execution . costs against the plaint . for want of a bill . commission to set out meet wayes for passages . an english bill for perjury . injunction to stay judgement in an action of wast . reliefe for a trust upon a lease , after it is sold . a bill for reliefe after judgement and execution dismissed . a bill upon a promise for leave to dry clothes in a garden dismissed . attachment for not appearing upon a subpoena . day given to the sheriffe , to returne an attachment upon paine of l. consil. injunction to stay suits , because the queene was deceived of her fine . consil. the heire is sued to make a lease for which his elder brother tooke a fine or to repay the fine . the clarke is fined s. for his mistake , in making a subpoena . subpoena delivered to the wife , good . the plaint● refusing to seale a release , the defendant puts a bond in suite , and stayed by injunction ▪ attachment with proclamation discharged paying the ordinary fee , answer being in befo●e ▪ one executor sueth the other to put in sureties to performe the will . the contempt discharged , and ● new commission granted to take the defendants answers . prohibition for tythes of lands held in capi●e . costs for want of a bill , oath made befo●e the major of totnes . attorney present in court , enjoyned not to proceed at common law . suite for ●ent of s. affidavit the he saw a subpoena served . at●achment against witnesses served to testifie . atachment upon the defendants confession he was served . two joint tenants , the one dyeth , the other ordered to make estate according to the will . witnesse that answer insufficien● againe examined ▪ jurisdiction of chester allowed . a suit for a hawk , and evidences dismissed . the bill dismissed , because the councellors hand is counterfeit . costs for prosecuting contem●ts and none proved . fraud by mak●ng a lease after a feoffement and before livery and seizin . suit stayed in the kings bench , because it was removed from london suit for common . a bill for l dismissed . costs upon a billet delivered to a brother , and no bill in court . commission to take the defendants answer upon oath of impotency before the mayor of totnes . consil. consil. the defen. . years old . jurisdiction of wales allowed . consil. attachment upon oath before the bayliffes of mountgomery . consilio . dismission because under s. per annum . injunction for defrauding the queen of her fine . consil. attachment upon oath before the major of t●tnes . jurisdiction of the mannor of woodstock overruled . commission to examine in perpetuall memory . le●ssee not named in the premises decreed for him . one executor gets the estate and dyeth , the other sueth his executor , and ordered for him . feme covert sueth for maintenance put into anothers hands , he demurrs , but orde●ed to answer . one subpoena served on two defendants ; two bills exhibited ordered to answer both . the defend . demurred , generally ordered to answer . two executors exhibite two bills , ordered to answer the one , the other dismissed with costs . witnesses examined in perpetuall memory , the one dead , and the other sick , moved to use their testimony . a subpoena served within two dayes of the termes end , the attachment discharged answering . the solliciter of the plaintant ordered to be examined with caution . a bill without a counsellors hand or atturney retained dismissed . iurisdicton of wales overuled . jurisdiction of wales overruled . the defend . stayed by injunction to pul down roomes to the prejudice of anothers rooms . upon a commission warning given but to one defendant , a new c●mmission is granted , and the defendants to have the carriage . a subpoena left in the defendants hall , an attachment witnesses examined before the towne clark of yo●k suppressed . the server of a subpoena imprisoned , therefore attachment against the defendant . iurisdiction of wales admitted . a rent reserved and paid , the heire ordered to pay it . a rent charge upon severall mens lands , and levied upon one , an injunction . a dumb man is not to answer upon subpoena . money paid for a reversion , which could not be enjoyed , ordered to repay the same . no witnesses to be examined till the defendants have answered ▪ an action against a drunken mans words seeketh reliefe , but is dismissed . a subpoena shewed and offered , attachment for not appearing . witnesses examined . and . p. and m. ordered to prefer a bill for publ●cation . attachment discharged by supersedeas , paying the ordinary fees . the defendants wife examined as a witnesse . suit upon a promise to surrender a lease dismissed . subpoena to testifie where no cause was depending discharged . jurisdictio● of the north allowed . jurisdiction of the exchequer disallowed . a subpoena cau●elously served , attachment against the plaintant . a bill for tuition of an infant . costs for a witnesse served to testifie . deeds neglected to be inrolled a subpoena to shew why not . jurisdiction of the dutchy of lancaster allowed . the matter of as●umpsit re●ered to the common law . feme sole sueth out a subpoena , and the same day is married , dismissed with costs . the plaint . enters upon the defend . possession ordered , either a dismission , or injunction . prohibition for sithes , parcell of the dutchy of cornewall , but consultation if cause be not shewed . perju●y in m●king oath for impotency , one of the same name sued for it , and discharged . a witnesse not able to travell , discharged of contempt . jurisdiction of wales not allowed for a promise . a commission to answer , he returned a demurrer , therefore attachment . a councellor not to be examined of any matter , wherein he hath been of councell . a billet in paper served , and no bill in court costs is awarded . feme covert , whose husband is in the gallies must answer matter of equity wherewith she is charged . injunction left at the defendants house and disobeyed , an attachment is awarded . consil. costs for want of a bill . iurisdiction of wales allowed . a writ of priviledge disallowed . bayliffes of a corporation not compellable to make a lease . attachment for breaking an order in court . suit for hay , corn , and grasse not worth s. dismissed . suit for the poor of a parish under . s. per annum , ●erained ▪ attachment upon oath , before the portrive of minxhead . confil. a decree for the plaint . yet put out of possession by the defendant . defendant departing without license an attachment . attachment discharged paying the plaintant s. costs . liberty for a common fishing . a bond put in suit , for not performing an award stayed by injunction . injunction to stay suit at common law . commission of rebellion for not payment of costs . the defend , discharged of the attachment because the subpoena was counterfeit . an award ordered to be performed . the defendant licensed to depart after answer in a writ of priviledge . the defendant commi●ted to the fleet for a rescue , brought an action for a false returne . subpoena against the plaintant to shew where he had his counterfeit writs , and answer his misdemeanor , and pay costs . costs for want of a bill . costs for want of a bill , the billet being lost . a demurrer without shewing any cause ordered to answer . five pound dismissed commission to take the defendants answers , they being yeares old a peece . . of f●b . sir nicholas bacon dyed , of april , the seale delivered to sir thomas bromley . councell on both sides to attend concerning the ratifying of an award . jurisdiction of chester allowed . no costs to be allowed upon a disclaimer . costs allowed the defendant , being taken upon a commission of rebellion . costs for want of a bill the billet lost . a commission to examine witnesses in perpetuall memory . attachment for not appearing . dismission for that they have been in possession . years . attachment for putting in a demurrer instead of an answer . day given to the defendant to rejoyne . a new commission to examine witnesses , because they appeared not before . not to extend one mans lands onely , where many are subject . injunction to stay suit at common law . a new commission to the defendant , and publication is stayed of witnesses examined by the plaint . in court . the defendant not to answer , till a counsellors hand be put to the bill . dismission the lands being under s. per annum . injunction to stay a suite of quo minus , in the exchequer . attachment against witnesses , served to testifie● attachment for costs . injunction to stay suits at common law . a demurrer generally ordered to answer . the defendant charged upon account shall not answer if upon a p●omise , he shall . a commission by consent to prove the receipt of rents , fines , and woodsales . notes for div a e- the en●rance in seldens discourse fol. b. reports of special cases touching several customes and liberties of the city of london collected by sir h. calthrop ... ; whereunto is annexed divers ancient customes and usages of the said city of london. calthrop, henry, sir, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing c estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) reports of special cases touching several customes and liberties of the city of london collected by sir h. calthrop ... ; whereunto is annexed divers ancient customes and usages of the said city of london. calthrop, henry, sir, - . [ ], , [ ], - p. printed for abel roper ..., london : . includes bibliographical references. added t.p. on p. [ ]: whereunto is annexed divers ancient customs, and usages of the said city of london. newly re-printed. london : printed for abel roper ..., . reproduction of original in bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng customary law -- england -- london. law reports, digests, etc. -- england -- london. london (england) -- charters, grants, privileges. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion reports of special cases touching several customes and liberties of the city of london . collected by sir h. calthrop knight , sometimes recorder of london . whereunto is annexed divers ancient customes and usages of the said city of london . london : printed for abel roper , at the sun st. dunstans church in fleetstreet , . to the right worshipful sir thomas loe , k. alderman of the city of london . worthy sir , being put in mind of that saying of seneca , ingratum sidixeris omnia dixeris . and having a desire to avoid that rock whereupon so many have suffered shipwrack , have had often conflicts within my self , wherein i might express my thankfulness unto you , of whom i a stranger have received so many undeserved favours , and at last bethought my self , that ( you being one of the noble governours of this famous city of london , and being likewise a president over several companies of merchants in it ) a treatise concerning the customs of the city of london , or otherwise concerning the priviledges and immunities granted unto the merchants of london , would not altogether be an unfitting subject to be presented unto your view ; whereupon i have selected som few cases collected by my self , of the resolution of the iudges , concerning some customes of your city , and some charters granted unto the citizens of it , and offered them unto your consideration , the which i desire you to accept as a pledge and token of a thankful mind , howsoever they in themselves are unworthy your pains to be taken in the reading of them : and so with my truest wishes of the continuance of all happiness unto your self , your thrice noble lady , and the branches of your flourishing family , i take my leave , ever resting , from my chamber in the middle temple , januarii anno dom. . the affectionate and hearty well-wisher of all good unto you and yours henry calthrop . the contents of several cases . the case of the city of london , concerning neusances in stopping up the lights of their neighbours houses by new buildings page touching the custome of citizens learning that trade , whereunto they have been apprentices seven years , and betaking themselves to other trades . the custome of london touching forreign attachment . the case concerning the prisage of citizens wines .   the case concerning repairing of wharfes and docks .   the cuctome of london , to fine one chosen by the commons to be sheriff , and refusing , to hold . the case of merchant-adventurers . certifying indictments upon certioraries . concerning orphans portions . the custome in not removing body and cause upon habeas corpus . the case concerning payment of tythes in london . divers ancient cuctomes and usages of the of city london . hust of pleas of land. hustings of common pleas. page assizes of mort d' ancest in london . assizes of novel dissezen , called freshforce in london . de curia majoris london & custumis civitatis ejusdem & diversis cesibus terminalibus in eadem curis . the commission and article of the wardmote inquest , by the mayor . an act for the reformation of divers abuses used in the ward-mote inquests . the articles of the charge of the ward-mote inquest . an act parliament for the preservation of the river of thames . an act of common councel concernidg the conservation and cleansing of the river of thames . the oath of the constables within the city of london . the oath of the scavengers . the oath of every freeman of this city of london . an act of common council concerning making freemen of the city , againct colouring of forreign goods . the statutes of the streets of this city against annoyances . old laws and customes of this city . by act of parliament in . car. . reports of special cases , touching several customes and liberties of the city of london , &c. the case of the city of london concerning neusans in stopping up the lights of their neighbours houses by new-buildings . reginold hughs an attorney of the kings bench being seized in his demesne as of fee , of an ancient house in the parish of saint olaves in the ward of queen hithe london in the south-part of which house have been three ancient lights ( time our of mind . ) anthony keeme having taken a lease for . years from the rector and guardians of the parish church of saint michael at queen hithe by indenture of a rumous house , and yard next adjoyning unto the said house , with a covenant to bestow a marks at the least upon the repairing or new building of the said house ; doth within two years pull down the said house , and doth build a new house in the place where the old house stood , and likewise upon the yard whereby the three ancient lights on the south-side of ●●●● house are stopt up , whereupon reynold lewes doth bring his action upon the case against anthony keem , for the stopping up the lights ; unto which the said anthony doth plead a special plea in bar , shewing the ruinousness of the house , and likewise the lease made by the rector and guardians , and the covenant comprised within the lease , and doth also shew that there is a custom in london , that if one have an ancient house , wherein there are ancient lights , and one other hath a house adjoyning upon that house ; he that hath the adjoyning house may well enough enhance his house , or build a new house upon his ground , and to stop those ancient lights of the house next adjoyning , unless there be some writing to the contrary . and he doth aver in facto , that there was no writing to the contrary , and that he according to the custome did take down the old house and build a new one upon the same foundation and upon the yard opposite unto the said lights , whereby they were stopped up ; and upon this plea in bar ; the plaintiff demurreth in law. the questions of this case are . first , whether it be lawful for a man to build a house upon his own ground , whereby the lights of an ancient house are stopped , there being no custome to enable him ? secondly , whether the custome of london will enable a man to build a new house from the ground ; where no house formerly was , whereby he may stop the ancient lights of his neighbours house ? thirdly , whether upon an ancient foundation a house may lawfully be enhansed , so as it shall stop up the light of the neighbours house adjoyning ? as to the first , it is clear by the opinion of sir thomas flemming , chief justice of the kings bench , sir cristopher yelverton , sir david williams , and sir iohn crook , justices of the kings bench , that there being no custome , it is not lawful to erect a new house upon a void piece of ground , whereby the old lights of an ancient house may be stopped up ; for the rule of equity , and law saith , utere tuo , ut alienum non laedas ; and the light which cometh in by the windowes , being an essential part of the house , by which he hath three great commodities , that is to say , air for his health , light for his profit , prospect for his pleasure , may not be taken away no more , then a part of his house may be pulled down , whereby to erect the next house adjoyning . and with this resolution agreeth the case of eldred reported by sir edw. cook , in his ninth report , fol. . where he sheweth the ancient form of the action upon the case to be quod messuagium horrida tenebritate obscuratum fuit ; but if there be hinderance only of the prospect by the new erected house , and not of the air , not of the light , then an action of the case will not lye , insomuch that the prospect is only a matter of delight , and not of necessity . as to the second , it was resolved by the opinion of the aforesaid judges , that the custome of london will not enable a man to erect a new house upon a void space of ground , whereby the ancients lights of an old house are stopt up ; for first the owner of the old house having possession of a lawful easment and profit which hath been belonging unto the house by prescription , time out of mind of man , may not be prescribed out of it by another thwarting custome which hath been used time out of mind of man , but the latter custome shall rather be adjudged to be void , and prescription against a prescription will never be allowed by the law. . it may well be that before time of memory the owner of the said void piece of ground granted unto the owner of the house , to have his windows that way without any stopping of them , the which being done , and continued accordingly , hath begotten a prescription , the which may not be defeated by the allegation of a general custome ; and with this resolution doth agree a case adjudged , trin. . eliz. rot. . in the kings bench ; whereupon an action upon the case brought by thomas bloond against thomas mosley , for erecting of a house in the county of the city of york , whereby the ancient lights of his house were stopped up : the desendant did plead a custome for the city of york , as there is here for the city of london , and adjudged that the custome was naught , whereupon the plaintiff had his judgement : but if the houses had been new erected houses , or otherwise windowes had been newly made windows in that ancient house , the erection of that new house upon that void space of ground would have been lawful notwithstanding that the windows and lights be stopped up ; for it shall not lie in the power of the owner of the ancient house by setting out his new windows to prevent him , that hath the void peice of ground from making the best benefit of it . as to the third point , it was conceived that if the new house be only erected upon the ancient foundation , without any inlargement either in longitude or latitude , howsoever it be made so high that it ●oppeth up the lights of the old house yet he is not subject unto any action , because the law authorizeth a man to build as high as he may upon an ancient foundation , and it is no reason to foreclose a man from making his house convenient unto his estate and degree by building up higher , when there is no other impediment , but only some windowes which are built out over his house ; and agreeing to this , seemeth the old book of . e. . . to be where an assize of nusans was brought for erecting his house so high , that the light of the plaintiff in the next adjoyning house was disturbed by it , and the plaintiff upon the opinion of herl , chief justice , did not proceed in the assize , but let it fall to the ground ; but if the new builded house exceeded the ancient foundation , whereby that excess is the cause of stopping up of lights , then is he subject unto the action of him whose light is stopped up , as it may appear by . h. . . and in the case at the bar , judgement was given for the plaintiff , because he had brought his action for building of a new house upon a void piece of ground , by which his windows were stopt up . and keeme the defendant only justifieth by the custome , the erection of the house upon an old foundation , and upon the void piece of ground , the which is not any answer at all unto that which the plaintiff layeth unto the charge of the defendant . touching the custome of citizens leaving that trade whereunto they have been apprentices seven years , and betaking themselves to other trades . iohn tolley having been an apprentice in london by the space of seven years unto a wool-packer , after the seven years expired , is made a freeman of london ; afterwards he leaveth the trade of a wool-packer , and betaketh himself to the trade of an vpholster , and doth exercise that trade by many years , whereupon one thomas allen an informer , doth exhibit an information in the court of the mayor of london , as well for the king as for himself , upon the branch of the statute made in the fifth year of the late queen elizabeth cap. . whereby it is enacted , that after the first day of may next ensuing it shall not be lawful unto any person or persons , other than such as now do lawfully use , or exercise any art , mystery , or manual occupation , to set up , &c. any such occupation now used or occupied within the realm of england , or wales , except he shall have been brought up seven years at the least as an apprentice in manner and form aforesaid , nor to set any person on work in such mystery , art , or occupation , being not a workman at this day , except he shall have been an apprentice as aforesaid , or else having served as an apprentice as is aforesaid , shall or will become a iourney-man or hired by the year upon pain that every person willingly offending or doing the contrary , shall forfeit and lose for every default fourty shillings for every moneth . and he sheweth , that iohn tolly the now defendant hath exercised the trade of an upholster by the space of fourty moneths , whereas he was never an apprentice to that trade by the space of seven years ; contrary unto the aforesaid statute , whereby the said thomas allen doth demand the forfeiture of eighty pound unto the king and himself , whereof he the said allen doth require the one moyety , according to the form of the said statute . and this information being removed out of the court of the mayor of london by certiorari into the kings bench , the said iohn tolley doth plead a special plea in bar , shewing , that there is a custome of london which hath been used time out of mind of man , that every citizen and freeman of london , which hath been an appretice in london unto any trade by the space of seven years , may lawfully and well relinquish that trade , and exercise any other trade at his will and pleasure . and sheweth further , that all the customes of london were confirmed by k. r. . in the parliament holden in the seventh year of his raign . and averteth , that he had served one in the trade of a wool-packer , as an apprentice , by the space of seven years , and that he was a citizen and a freeman of london , and that he did relinquish the trade of a wool-packer , and betook himself to the trade of an upholster , as lawful it was for him to do ; and so he demandeth the judgment of the court if this information against him will lie ; and upon this plea in bar , the said thomas allen doth demur in law. the questions in the case were these . . whether the custome of relinquishing one trade , after that he hath been an apprentice by the space of seven-years , and betaking himself to another trade , wherein he hath not been an apprentice , be good or no ? . whether it may be taken as a custome or no , or whether it shall be said to be the common law of the realm , and so the allegation of it , as a custome , nought ? . whether the statute of the confirmation of the customes of london , made in the seventh of r. . as it is pleaded , shall be taken to be an act of parliament , or only a confirmation made by the letters pattents of the king in parliament ? . whether the branch of the statute of . eliz. cap. . being in the negative , inhibit all men to exercise the trade when they have not been apprentice seven years thereunto , is a controlment of the custome of london , which can receive no support by the statute of confirmations ? and whether that custom shall stand good in opposition of that branch ? . whether the trade of an vpholstor be a trade restrained by the statute of . eliz. so as iohn tolley may exercise it , notwithstanding that he hath not been an apprentice to it by the space of seven years , according to the course of the common law ? . whether the court of the mayor of london be such a court of record , as that an information may be exhibited there ? . whether a moyety may be demanded of this forfeiture by the informer , when as a proviso in the stat. of . eliz. . doth appoint the levying , gathering , and receiving of such forfeiture as falls in a city or town corporate to the mayor , or other head officers , to the use and maintenance of the same city or town corporate ? as to the first question , which is the lawfulness of the custome , it was agreed to be good ; for it might have a reasonable construction , beginning , and just cause , for the putting of it in execution , insomuch that london being a famous city for traffique and commerce , cannot but sometimes have merchants and tradesmen in it , who by misadventure of pyrates or shipwrack in the seas , or by conffiscation of their goods in forraign countries abroad , o● by casu●lties of fire , &c. at home , have their estates sunk , whereby they are not able for want of stock and meane● to continue that course of merchandizing and trade wherein they have been brought up there being great stocks and sums of money requisite for the continning of it , whereupon they are forc'd to leave that course , and betake themselves to some other trade proportionable to that means which they have left . and it were lamentable , that wher● inevitable casualties have disabled a man to proceed in that course wherin he was brought up , he now should not be permitted to acquire his living by any other trade . also it may be , that the trade whereunto he was an apprentice , requireth great labour and strength of body , as the trade of a smith , carpenter , and such like , and that through sickness or other disasters befaln him , he is become infirm in body , and weak in strength , whereby he is not able to use that trade . now to deba● him of all other trades , which are more be fitting his crazy body , were somwhat unreasonable . wherefore to meet with these inconveniencies , and to give incouragement unto the citizens and freemen of london this custome of relinquishing the trade whereunto they have been apprentices by the space of seven years , and betaking themselves unto another trade , hath had a perpetual allowance , and being grounded upon so good reason still hath its continuance , and may not any wayes be called in question for the unreasonableness of it . as to the second question scil . whether the allegation of it as custome in london that every citizen and freeman of london may relinquish his trade wherein he hath been an apprentice by the space of seven years , and exercise another trade or no , be warrantable by the rules of law or no , insomuch that before the stat. of . eliz. . which restraineth it , it was lawful for every man to use what trade he would , although he had not been an apprentice by the space of seven years : and then it being the common law of the realm that a man might use any trade , although he had not been an apprentice for seven years , it may not be alledged by way of custome in london , but it ought to have been shewed , as the custome of the realm , for that which is the common law of the realm , is the custome of the realm ? it was answered and agreed , that as this custom was alledged in this information , the allegation of it was warrantable in the law , and it may well be said to be a custome before the stat. of . eliz. for first . the custome is restrained to a citizen and freeman of london , so as he that is not a citizen and freeman may not enjoy the benefit of this custome , and it being restrictive of the common law which giveth power unto all , as well freemen as citizens , to exercise what trade they will , standeth well in custome , and may well be alledged by way of custome . this is alledged to be the custome of london , and so is tyed to a particular place ; and howsoever it may be the common law of the realm in other places , yet in london , which is for the most part governed by their particular customes , it may well be said a custom , and so the plea in bar good enough , as to this exception . as to the fourth question , soil . whether the branch of the statute of . eliz. . be a repeal and controul of the custome of london concerning the exercise of a trade where he hath not been an apprentice by the space of seven years ? it was resolved that the custome of london was of force , and was not any wayes controuled by that branch . first , in regard that this being a particular custome used in london , the general words of the branch of that stat● shall not be taken to extend to the repeal of it : for so much regard is to be given unto that city , being camera regis , and as dear to him as the apple of his eye , that the customes of that place shall not be overthrown by the extent of general words , where there is no particular provision for it , might tend to a great derogation of the city , and likewise might be very prejudicial to the commonwealth , when as the ill-affectedness of this city being the chief member of this politique body , cannot but make all the other members to be partakers of thei ll disposition of it . and upon this reason it is , that before such time as the stat. of r. . was thought of , it was holden that the stat. de religiosis , otherwise called the statute of mortmain , made in the seventh of the reign of e. . which did make a general restraint from disposing of lands in mortmain , did never extend unto the repeal of the custome of london , which did enable those that were citizens and freemen of london to devise their lands in mortmain , as before . secondly , the city of london , and the custome therein used , being the example and patern which the statute of . eliz. in some parts of it doth require should be followed , as in that branch , wherein provision is made , that every person being an housholder , and twenty four years old at the least , dwelling or inhabiting , or which shall dwell or inhabit in a city or town corporate , and use or exercise any art , mystery , or manual occupation , shall and may yet have and retain the son of any freeman not occupying husbandry , &c. to serve . and be bound as an apprentice , after the custome and order of the city of london for seven years at the least . it seemeth that the intent of the makers of that statute , was rather to confirm ; than repeal the customes of london , for it would never make the custome of london to be the example which ought to be persued , if it had had an intention to repeal it . and by the same reason , that the custome of london shall not be comprehended within the general words of one branch of the statute , the general words of another branch shall not be extended unto them . thirdly , it is to be observed , that the statute of . eliz. hath a proviso , that this act , nor any thing therein contained or mentioned shall not be prejudicial or hurtful unto the cities of london and norwich or to the lawful liberties , usages , customes , or priviledges of the same cities . and howsoever it speaketh , only concerning the having or taking of apprentices , yet by the whole scope of the statute , which maketh the customes of london to be their directions in many things enacted by that statute , it appeareth , that the intent was to preserve the customes of london , and not any ways to abolish them . for it should be very mischievous to the city , and would endanger the subversion and decay of it ; if all acts of parliament by their general words should stretch to repeal the customs of london , in case where they are somewhat opposite unto the statute . fourthly , upon the matter , there must be a repeal of the statute of magna charta , cap. . which confirmes all the customes of london , the which shall not be done by general words in a statute , because it hath been so often-times confirmed . as to the fifth question , scil . whether the trade of an upholster be a trade restrained within the statute of . eliz. cap. . so that none can exercise it , but he that hath been an apprentice by the space of seven years ? it was agreed and resolved , that an upholster is not a trade within that stat. for first it is not a trade that is mentioned in any of the branches of the statute , howsoever in all parts of the statute there is mention made of sixty one several trades and mysteries . and if the arti●ans which at that time were assistants unto the commitees for the expressing of all manner of trades , and thought that the trade of an vpholster had been such a trade that required art and skill for the exercising of it , they would not have failed to make mention of it . secondly , there having been two former acts of parliament , that is to say , the statute of . h. . cap. . and . ed. . cap. . made concerning vpholsters , it was not necessary that mention should be made of it in this statute , and so it shall be intended that there was purposely an omission made of an vpholster , because there was sufficient provision made for him formerly . thirdly , the trade of an vpholster doth not require any art or skill for the exercising of it , inasmuch as he hath all things made to his hand , and it is only to dispose them in order after such time as they are brought to him , as the ticks of his beds he borroweth from a weaver , the frames of his beds and stooles from the joyners and turners , his iron-rods and nailes from the smith , his guilding , and setting forth and adorning of his beds and stools from the guilder and painter ; and so he is like to aesops bird , which borroweth of every bird a feather , his art resting meerly in the overseeing and disposition of such things which other men work , and in the putting of feathers into a tick , and sowing them up when he hath done , the which one that hath been an apprentice unto it but seven days is able to perform . and the intent of this statute was not to extend unto any other trades , but such as required art and skill for the managing of them : and therefore it was adjudged in the exchequer upon an information against one in the , year of the reign of the late queen eliz. that a coster-monger was not a trade intended by the statute of . eliz. because his art was in the selling of apples , the which required no skill or experience for the exercise of it . so an husbandman , tankard-bearer , brick-maker , porter , miller , and such like trades , are not within the statute of . eliz. cap. . so as none may exercise them , but such a one that hath been an apprentice by the space of seven years ; for they are arts which require rather abillity of body than skill : but a brewer and baker are within the statute , because it concerneth the health of mens bodies to have good bread baked , and beer b●ewed , and so it is fit that they should have skil for the exercise of them . fourthly , an upholster being no such trade within the stat. of . eliz. as may compel one to be an apprentice unto him for the space of seven years ; for it is not mentioned within that branch that concerneth the compelling of men to be apprentices . it is not any such trade as is within that branch , which compelleth men to be apprentices for the space of seven years , before such time as they can exercise it ; for none shall be within the branch that restraineth men to exercise their trades , where they have not bin apprentices by the space of seven years ; but such as are within that other branch , to compel men to be apprentices unto them by the space of . years . as to the sixth question , which is ; whether the court of the mayor of london be such a court of record , as an information may be exhibited in it upon this statute of the . of eliz. cap ? it was answered and resolved , that it was . for it is expressed by precise terms , in one of the last branches of the said statute , that the said mayor , or other head-officers of the cities or towns corporate , shall have full power and authority to hear and determine all and every offence and offences , that shall be committed or done against this statute , or against any branch thereof , as well upon indictment to be taken before them in the sessions of the peace , as upon informatio●● action of debt , or bill or complaint to be sued or exhibited by any person , and shall and may by vertue thereof make process against the defendant , and award execution , as in any other case they lawfully may by any the laws and statutes of this realm , and the presidents have been alwayes accordingly . for in the . year of the late queen eliz. an information was exhibited by one robinson against toby , in the mayors court of london , because he exercised the trade of a cutler ▪ where he had not been an apprentice by the space of seven years , and allowed to be well exhibited . so in the case \l = o ▪ \f one banister , and information exhibited in that court , because he had exercised the trade of a weaver , where he had not been apprentice by the space of seven years , was admitted good . as to the seventh question , which is , whether the informer may demand the moyety of the forfeitures upon this statute , because in a branch in the latter end of the statute , it is enacted , that all manner of amerciaments , fines , issues , and forfeitures , which shall arise , grow , or come by reason of any offences , or defaults mentioned in this act or any branch thereof , within any city or town corporate , shall be levied , gathered , and received by any person or persons of the same city , or town corporate , as shall be appointed by the mayor , or other head officers mentioned in this act , to the use and maintenance of the same city or town , in such case and condition as any other amerciaments , fines , issues , or forfeitures , have been used to belevied , or imployed within the same city or town corporate , by reason of any grant or charter from the queens majesty that now is , or any her graces noble progenitours , made or granted to the same city , burrough , or town corporate , any thing , or clause before mentioned or expressed to the contrary notwithstanding ? it was answered and resolved , that the informer might well demand a moyety ; for there being a former branch , that enacted , that the one half of all forfeitures and penalties expested and mentioned in this act other than such as are expresly otherways appointed , shall be to our soveraign lady the queens majesty , her heirs , and successors , and the other moyety to him or them that shall sue for the same in any of the queens majesties courts of record or before any of the jus●i●es of oyer and terminer , or before any other justices or presidents and councel before remembred , by action of debt , information , bill of complaint or otherwise : the informer may demand his moyety , by vertue of this branch ; and the subsequent branch which gives the forfeitures unto the mayor , shall be taken only of the forfeitures which are given to the queen , and not of that which is given to the informer , who is the means whereby the other moyety is brought to the mayor , and other officers . the custome of london touching forreign attachment . iohn tenant a citizen of london , is indebted fourty pound by specialty unto one other citizen of london , the which said citizen is likewise indebted unto one robert haydon , another citizen of london in fourty pounds upon a simple contract . the citizen so indebted unto haydon died intestate . thomas spink taketh letters of administration of the goods and chattels of the said intestate . tenant after the day of payment of his fourty pounds promiseth spink in consideration that he will forbear him the payment of the said fourty pounds , by the space of two months to pay to spink the said fourty pounds . spink forbeareth tenant accordingly , but the fourty pounds is not paid according to promise . afterwards the debt due by tenant , is attached in his hands according to the custome of london of forreign attachments for the debt due by the intestate unto haydon , spink bringeth his action upon the case against tenant , for not paying the . pounds according to his word who sheweth in his plea in bar , that the debt due by him unto the intestate was attached according to the custome of forreign attachments . and upon this plea in bar , spink demurreth in law. the questions in this case are , . whether this debt of the intestate being only a debt due upon a simple contract , be such a debt of which a forreign attachment may be made according to the custome of london ? . whether the custome of forreign attachments may hold in this case , inasmuch as by the statute made in an . ed. cap. the name of administrators was created , and before that statute lettars of administration were never granted ? . whether there being a forreign attachment of the debt due unto the intestate , after the not performing of the promise , and title of action given unto spink the plaintiff , be a dispensation with the promise , so as now the action faileth upon the promise for not paying the money . as to the first question , which is , whether for the debt , being a debt due only upon a simple contract , a forreign attachment may be used or no ? it was agreed and resolved , that a forreign attachment might well be sued for it : for by the custome of london , the executor or administrator being chargeable for a debt due by the testator , or intestate upon a simple contract , as well as upon a specialty , a forreign attachment may be sued as well for that debt , as for a debt due upon specialty . and howsoever the kings bench , or any other court of westminster , be not bound to take notice of this particular custome of london in charging the executors , or administrators upon the simple contract , nor to give judgement according to the custome yet when judgment hath been given according to that custome , and that judgement appeareth judicially unto the judges by the record : now they ought to allow the custome , and give their judgement according to that custome in affirmance of the judgment given in london . but it was agreed , that if there had not been any debt due by the intestate unto haydon ; now howsoever there had been an attachment made in london of the debt due by spink unto the intestate , and a judgement given upon it , yet might the administrator have relieved himself by way of denial , and traverse that there had been any debt due by the intestate unto haydon . as to the second question , which is , whether the custome of forreign attachments in london may hold as this case is ? it was agreed and resolved , that it may and doth well enough hold . for howsoever that none was charge able at the common law by the name of an administrator , inasmuch as by the statute of . ed. . cap. no accusation lay against an administrator by that name ; and that a custome may not commence since the making of that statute ; yet inasmuch as he was chargable at the common law as an executor for his administration so that the name of the charge is only changed , and yet in substance is all one ( for every executor is an administrator and the pleading is upon an action brought against an executor , that he never was executor , nor ever administred as an executor . and an administrator hath the quality and office of an executor . ) therefore the custom of forreign attachments will hold against an administrator , as well as against an executor . as to the third question which is , whether the forreign attachment for the debt due unto the intestate after the promise broken be such a dispensation with the promise , that no action now lieth for the administrator upon the breach of the promise ? it was agreed and resolved , that the promise was dispensed with , and no action lay upon the breach of it ; for the debt due by tenant unto the intestate ; which was the ground , and cause of the promise made unto spink : the plaintiff is taken away by the judgement had in london upon the custome of forreign attachments , et sublato fundamento fallit opus . and therefore if after the promise broken there had been a recovery had of the principal debt by the plaintiff as administrator , or otherwise , there had been a release made unto the defendant . now the action upon the case upon the promise would have failed , inasmuch as the debt , which was the consideration , and ground of the promise is gone , and so the dampnification which he should have had by not performance of the promise faileth . and agreeing to this resolution was the case of one bardeston , and humfry cited to be adjudged , whereupon an accompt , he that was found in arrearges upon a consideration of forbearance by one moneth , promiseth payment of them . and those arrerages thus due being attached in the hands of the accomptant after the promise broken ; it was held that no action might afterwards be maintained upon the breach of promise . the case concerning the prisage of wine . king edward the third in the first year of his reign doth by his letters patents bearing date the same time , grant unto the mayor and commonalty of london , that no prisage shall be of any of the wines of the citizens of london . but they shall be free , and discharged from the payment of all manner of prisage . george hanger being a citizen , and freeman of london ; and resient within the city , fraughteth four several ships with merchandize to be transported beyond the seas , the which four ships being disburdened of the said merchandize are laden with wines . two of the ships came up the thames at london , and before any unbulking of them , george hanger maketh frances hanger being his wife his executrix , and dieth . afterwards the other two ships came up to london . sir thomas waller being cheif butler of the king by virtue of letters patents made unto him , demandeth the payment of prisage of the said frances hanger for the wines in the said four ships , that is to say : to have of every of the ships one tun before the mast , and one other tun behind the mast . she denieth the payment of it ; whereupon the said sir thomas waller as chief butler exhibiteth his information into the kings bench against the said frances hanger . whereunto the said frances pleadeth a special plea in barre , shewing the whole matter as abovesaid opon which sir thomas waller demurreth in law. the questions of this case are two . the first is , whether for the wines which came up the thames in the two ships before the death of george hanger , any prisage ought to be paid unto the king or not ? the second is , whether any prisage ought to be paid for the wines , which were upon the sea in the ships before the death of the said george hanger but came not up the thames until after the death of george hanger ? the case was argued at several times by sir henry mountague knight , then recorder of london , now lord chief justice of the kings bench , thomas coventry then utter barister now solicitor general unto his majesty , and francis mingay an utter barister of the inner temple on the behalf of frances hanger and by henry yelverton then an apprentice of the law of graies-inn , and now attorney general unto his majesty , and thomas crew of the same inn likewise an apprentice of the law on the part of sir thomas waller . likewise it was argued at several times by the judges of the kings bench , that is to say , first by sir thomas fleming chief justice of the kings bench , sir christopher yelverton , sir david williams , and sir iohn crook , and afterwards by sir edward cook chief justice of the kings bench , sir iohn crook , sir iohn dodridge and sir robert houghton . and sir edward crook , sir christopher yelverton , sir david williams , and sir iohn dodridge were of opinion , that judgement ought to be given for frances hanger , against sir thomas waller ; for they conceived upon the reasons following , that no prisage ought to be paid , neither for the ships that came in after the death of george hanger , nor for the ships that came in before the death of george hanger , but they all were to be discharged of the payment of prisage by vertue of the said charter made by edward the third unto the mayor and commonalty of london . first in regard thath these wines thus in each of the four ships aforesaid , remained ( notwithstanding the death of george hanger ) to be still the wines of george hanger ; for if frances hanger the executrix were to bring an action for the recovery of them , she should bring an action as for the wines of george hanger , if frances hanger should be wained or attainted of felony or treason , those wines should not be forfeited , insomuch as they are not the wines of frances hanger , but of george hanger . if a judgement in debt or other action should be had against frances hanger as executrix of george hanger , these wines should be taken in execution as the wines of george hanger , and so these wines thus brought in before , and after the death of george hanger , continuing as yet the wines of george hanger , to be recovered as his wines , to be taken in execution as his wines , and to prevent a forfeiture , because these wines shall be said to be the wines of george hanger , whereby they may be protected , and priviledged from the payment of prisage within the words , intent , meaning of the before recited charter made by king edward the third , which pointeth rather at the wines then at the person of george hanger . secondly , in regard that frances hanger being the executrix of george hanger , is the representative person of george hanger as to these wines , so that such priviledges and immunities as george hanger was to enjoy if he had been living , the same shall frances hanger have benefit of after his death . and therefore notwithstanding frances hanger had been a nun , and so a dead person in law to all intents and purposes , yet she being made an executrix and so the representative person of the said george hanger , shall be enabled to sue , and be sued , as concerning the personal estate of the testator , so far as george hanger himself might sue , or be sued . and if frances hanger , being a neif had been made executrix now she being the representative person of george hanger , may well enough sue her lord unto whom she is a neif reguardant , or any other person whatsoever , and the being of a neif shall not be any disability unto her , as to her office of executrix-ship . the same law would have been if frances hanger had been wained and afterwards had been made executrix ; for she putting on the person of george hanger , and representing him , shall be clothed with the same priviledges and abilities as he was , and so frances hanger being enabled by the common laws of this realm , to sue , and to be sued , although she had been a nun , a neif , or a wained person , because she represented the person of george hanger whose executrix she was , shall be likewise capable of this priviledge of the payment of prisage for the wines of george hanger , as george hanger was . thirdly this charter made by king edward the third , being a charter only to discharge the citizens of london of the payment of prisage , and not a charter whereby the prisage of the citizens of london is granted unto others , shall have a liberal construction , and not be streined unto a special intent as a patent of charge shall be ; for it is evident by divers cases in our books , that frances hanger being an executrix , shall be taken to be within the remedy of an act of parliament , to discharge her self of a burden imposed upon her in respect of george hanger her testator , notwithstanding there was never so much as any mention made of her as executrix , in the act of parliament . and therefore frances hanger being an executrix , shall have an attaint upon the statute of . h. . chap. . to discharge her self of a false verdict given against george hanger , whereby his goods are to be charged , and yet she is not named in the act of parliament . so frances hanger being an executrix , shall have a writ of errour upon the statute of . el. chap. . in the exchequer chamber , to discharge her self of an erroneous judgement given into the kings bench against george hanger , whereby his goods are subject to an execution . likewise if george hanger be out-lawed upon a writ of cap. ad satisfaciend , awarded upon a judgement given in debt , or other personal action against him , frances hanger as executrix of george hanger , shall take advantage of a general pardon made by act of parliament in the life of george hanger , and shall be suffered to plead it , and to give satisfaction of the judgement given against george hanger , whereby she may be enabled to take benefit of the pardon ; the which being so , that frances hanger is a person capable to discharge her self of a false verdict of an erroneous judgement , of an out-lawry pronounced against george hanger her husband where the statute by precise words doth not relieve her , à fortiori shall frances hanger in the case at the bar , be enabled to discharge her self of the prisage of these wines , within the charter of edward the third . fourthly , by the same reason , that the butlarage shall be paid by the executors or administrators of an alien , for the wines brought into england , in case where the alien owner of the wines do die before such time as the ships are unladen , and way shall not be given to make an evasion to the payment of butlarge , upon an averment that the owner of the wines is dead before the unbulcking of the ships , so by the same reason prisage shall not be paid for the wines of george hanger , who dyed before such time as the ships came in ; for those wines shall continue the wines of the alien , to make his executors subject unto the payment of butlarage : so these wines shall remain the wines of george hanger , to free frances hanger his executrix from the payment of prisage . fifthly , there being nothing done in the case at the bar , to prevent george hanger whereby his wines should be made uncapable of the discharge of the payment of prisage within the charter granted by king edward the third but only the death of george hanger before the disburdening , and unlading of his ships ; and this being only the act of god , which by no power of man can be resisted , nor wit prevented , shall never turn him to that prejudice that a charge now shall be imposed upon his wines , the which ought not to have been , if george hanger had over-lived the time of breaking the bulk ; for it is a maxim , held , and a principle of the common lawes of the realm , that the act of god shall never prejudice in case where there is not any latches in the party ; and upon this reason is it that if one that is impleaded hath cause of priviledge , because he is the menial servant of the lord chancellour , he shall not be prevented of priviledge by the death of the lord chancellour , but he shall enjoy it , that death notwithstanding ; likewise it would be a great discouragement to the merchants , to hazard their own lives in fighting against the pyrates , and in being upon the seas when their deaths shall subject them to the payment of prisage . sixthly , in the case at the bar , there are four times to be observed ; the first of which is the time of the fraughting of the ships , and the sending them out of england beyond the seas ; the second is the time of the arrival of the ships , and the unlading , and disburdening of them beyond the seas , the third is the time of the lading of the ships with wines , and the returning of them for england ; the fourth is the time of the arrival at the port in england , and the unlading of them here ; and three of these times were passed in the life of george hadger when he was a member of the city , and a citizen as others are , for all the four ships , and part of the fourth time also for two of the ships ; for at the time that the ships were fraughted and sent out of england to the intent to bring in these commodities , george hanger was a citizen ; so when the ships arrived in the port beyond the seas , and unladed themselves to receive ●n the wines for which they went , he continued a citizen . likewise when the ships were laden with wines , and returning to the coasts of england , the hand of heaven had not as yet disfranchised him from being a citizen , and member of the city of london . and as to two of the ships , the said george hanger had his abode here until such time as they were in the port at london safe from being swallowed by the surging waves of the sea , secure from the surprizing of the desparate pyrates ; the which being so that three of the four times as to all the four ships were past during the time that he was a member of the city , and also part of the fourth time as to two of the ships , it is reasonable to think that these ships shall participate of immunity and priviledge , it be discharged of the payment of prisage which is granted by the charter made b● king edward the third notwithstanding that the last time was not com● before his death ; and the more especially also , because the law hath such regard unto the commencement , and beginning of a thing , and will have respect unto it , notwithstanding that there belong distance of time between the in choation , and consummation of it . an● therefore where a servant having an intention to kill his master , doth depart ou● of his service and long time after his departure out of his masters service doth kill him , that is petty treason in the servant , in regard of the retrospect which the law hath to the first intention of the servant , when he was in his masters service ; and yet if you respect the time of the murder committed , without regard had unto the first time , it cannot be petty treason , because the servant was out of his service at that time . seventhly , it is to be observed , that this charter to be discharged of the payment of prisage granted by king edward the third , was granted unto the mayor and commonalty of london , which is a body that alwayes continueth , and never dieth ; and so howsoever that george hanger , unto whom ( as unto a member of that body ) the priviledge of that charter is distributed , be dead , and cut off from that body , yet in so much that the body politique of the mayor and commonalty unto whom the charter was made liveth , the priviledge and immunity of george hanger to have his wines discharged of the payment of prisage will live , and continue in that body notwithstanding that george hanger be dead . eightly this charter being a charter made for the advancement and good of merchandize and trading ( which are as it were the blood which giveth nourishment unto the politique body of the kingdome ) is to have a favourable and benigne construction , whereby trading may be the better supported and maintained ; and the life of the state longer continued ; and therefore where king edward the third in the third year of his reign , granted unto the merchants of almagne , france and spain that they should come safely , and securely with their merchandize into england , and should be free from pontage , murag● and such other tolles , this grant was allowed to be good , and received an exposition according unto the law o● merchants , which is the law of nations ; and howsoever it would not b● good by the strict rules of the common law , because the merchant-strange● were not a corporation able to take yet it was admitted sufficient by that a●gem marcatoriam , according to whic● in some cases of merchants the judg● of the common law ought to give the judgement , wherefore in the case at the bar , this charter concerning the city of london , which is the university of merchants , and this case concerning george hanger which was a scholar trained ●● this in school , and had been matriculated in this place , the judge are to fram and give their judgement so , as the unversity and scholars of it , may receive the better encouragement to proceed and may not be disheartened to dive● their courses intended , from merchandi●ing and trading , by reason of the stri● construction of charters which giv● unto them immunities , and privledges . ninthly and lastly , this very case received formerly the resolution of three barons in the exchequer , upon an information exhibited there by sir thomas waller , that frances hanger should be discharged of prisage for the wines in all the four ships ; whereupon sir thomas discontinued his information , and exhibited it denove in the kings bench , whereby he would take the opinion of this court likewise ; and there having been former opinion conceived for the discharge of them , it is more agreeable with reason to have this opinion confirmed than opposed . but sir thomas fleming ; sir iohn crook , and sir robert haughton seemed upon the reasons hereafter ensuing , that judgement ought to be given for sir thomas waller , and that prisage ought to be paid by frances hanger , both for the wines wich were in the ships that were arrived before the death of george hanger , as likewise for the wines which were in the two ships which were upon the sea at the time of the death of george hanger ; howsoever by way of advice they wished that for the wines in the ships which were come home during his life , the payment of prisage ought not to be pressed by sir thomas waller . first , in regard the charter extendeth only to discharge the wines of such a person as is a citizen of london of the payment of prisage , and george hanger being dead , and so a citizen of the heavedly ierusalem , may not be longer said to be a citizen of london , and so not within the compass of the immunity granred by the charter . secondly this priviledge to be discharged of the payment of prisage , is in respect of the person who is the owner of the wines , and not in respect of the wines themselves and then there being a remotion of the person unto whom the exemption is tyed , there is a remotion of the exemption it self ; and therefore notwithstanding a tenant in ancient demesne , be by the common lawes of this realm to be discharged of the payment of toll in all faires , and markets , yet if the tenant in ancient demesne make his executors , and die the executors for the goods of the testator are to pay a toll , in so much , that it was only a personal priviledge which dieth together with the person . thirdly , this charter bereaving the king of the payment of prisage which is a flower of his crown , ought to have a strict construction , so as none may take benefit of it , but only such as are within the precise words of the charter ; wherefore george hanger being dead , and so no more a citizen of london , howsoever the wines in the ship may be said to be the wines of george hanger to a special intent , that is to say , for the payment of his debts , and the performance of his legacies according to his true intendment expressed in his will , yet may they not be said to be the goods of george hanger to every intent , in so much that frances hanger the executrix hath the disposition of them according to her will , and pleasure , and the poet saith , da tua dum tua sunt , nam post mortem tua non sunt ; and they not being the wines of a citizen to every intent , but only to a special intent , may not be said to be capable of the discharge of payment of prisage according to the case that hath been adjudged , that where the king by his letters patents doth grant the goods , and chattels of all felons and fugitives unto a common person , now the patentee , by vertue of this grant , may not claim the goods , and chattels of one that is a felon of himself , in so much that he is a felon only to a special intent ; and this being a flower of the kings crown , shall not pass by general words , fourthly , prisage being a thing which is not due until such time as the bulk be broken ; now forasmuch as george hanger was dead , and so was disfranchised before such time as the duty accrued , the charter shall not extend to discharge the wines in the hands of the executrix of the payment of prisage . and so having given you a taste of the opinion of the judges upon the main case : i will descend to the other matters considerable in this case , upon this charter ; and for better order and methods sake , i will divide it into the parts hereafter following , that is to say . first , what prisage is , and to whom due , the nature of it , and the diversity between butlerage , and prisage . secondly , what is the cause , and ground why the king hath prisage . thirdly at what time prisage shall be said to be due . fourthly , whether a grant , or discharge may be made by the king of prisage . fifthly , whether the charter of discharge unto the mayor and commonalty of the payment of prisage be good , when the grant is made to the mayor and commonalty , and the benefit distributed unto the natural persons and the ground of the making of this charter . sixthly , what persons shall be discharged of the payment of prisage within the words of the charter which saith , quod de vinis civium nulla prisa fiat . seventhly , what wines shall be said to be discharged of the payment of prisage within the words of the charter . as to the first , prisage is a certain duty which the king and his predecessours by themselves , or their officers by a custom ( time out of mind of man ) hath used to take for the provision of his houshold of all english merchants of all wines whatsoever , which the said english merchants bring from beyond the seas into the coasts of england . in which said description it is first observed , that it is a duty due from the subject unto his majesty , and not a voluntary gift of the subject unto the king. hereupon it is that in h. . . in the patent-roll in the tower you shall find prisage termed by the name of regia , & recta prisa ; for that it apperreineth and is due unto the king of common right ; and being a flower of his crown , may not belong unto any man else but by especial grant. secondly , it appeareth that it is called a certain duty , because it is manifestly certain , what the king shall have out of every ship , both in respect of the time when he shall take it , in respect of the place where he shall have it , and in respect of the quantity which he shall have . for as to the time when he shall take it , it is upon the breaking of the bulk of the ship , and not before ; for if a ship come into the port laden with wines , and the bulk of her is not broken , now may not prisage be demanded of her . and as to the place where the king shall take this prisage , it is ascertained by a book-case , where it is said , that the king shall take one tun behind the mast , and the other before . and as to the certain quantity which the king is to take , it is manifest by divers ancient records ; for if a ship have ten tun in her , and under the number of twenty tuns , then the king is to have one tun only ; but if the ship containeth twenty tuns and more , then the king is to have two tuns , the one to be taken behind the mad , and the other before the mast , the king paying for the portage twenty●sh , and by reason of these certainties you shall find in the patent-rolls in the tower . e. . that it is called , certa prisa . thirdly , it is to be observed that is not a duty newly encroached , for it hath by custom ( time out of mind of man ) been taken ; for the ancientest records now remaining with us do make mention of the payment of it ; for in the pat. rol. aforementioned being in the th year of henry the third it is spoken of ; and fleta who wrote in the beginning of e. . his time , hath not been silent in declaring the nature of prisage ; and in the . e. . rast all estreats sect. . an ordinance is made amongst other things that the butler of the king for the time being , either by himself or his deputy shall enroll the wines of prisage , how many times he hath taken them , the testimony of persons of whom the price was had , where , and when , and the customers of england shall be charged according as they are assigned for the gathering of customes within i certain bounds , that they twice yearly shall certifie the treasurer and barons how many ships have arrived within their bounds , &c. and how many ships arrived of whom the king did take prisage of wine , and how many tunnes , and in what ships the king did take twosh . for the tun. and for the other price . and in the pat. rol. extant in . r. . you may see the record speak in this manner . memorandum quod rex habet ex antiqua consuetudine de qualibet navi mercatoria applicante infra aliquem portum regni angliae duo dolia vini , &c. all which shew the antiquity of it . fourthly , it is said of all english merchants to make a difference between those that are merchants , and those that buy wines beyond the seas for their own private provision . secondly to make a distinction between the english merchants and the merchant-strangers , for merchant-strangers by a charter made unto them ( called by the name of charta mercatoria ) in the one and thirtieth year of e. , his reign are discharged of the payment of prisage , in recompence , and lien of which immunity granted unto them , the merchant-strangers by way of thankful restitution granted unto the king and his successours , that he should have two sh . of every tun of wine brought in by them within fourty dayes after it is brought into the port , the which two sh . is called by the name of butlerage , because the kings chief butler by reason of his office is to receive it . and those subject of the kings who do buy wines beyond the seas for their own spending , without any intention to merchandize , ought not to pay prisage for those wines . sixthly , it is expressed of all wines brought from beyond the seas ; for that if wines should be made in england . as in times past they have been ( as it appeareth by an ancient record in windsor-castle , where it is said that the parson had ten pound for the tythe of claret-wine mad there ) and they should be transported from one port to another to be sold , no prisage shall be paid for them . lastly , it is described which hath used to be taken , and not which hath used to be paid by the owners , and merchants of the wines , and the etymology of the word importeth as much . for prisae being the latine word for prisage , hath it's name of prendere , and is no more than prizel , which is taking , and is a participle of the word prendere , which may be applied to all manner of takings ; howsoever here it is only limited to the taking of wines . as to the second part , which is what is the cause , and ground of the payment of prisage , there is not any record to be seen which manifesteth the original cause of the payment of it ; but it is probably conjectured that for as much as the king of england is king of the narrow seas , and hath been alwayes at a perpetual charge in the maintaining of ships for the defence of his merchants , and protecting of them from the cruel spoile of the pyrates , and in scouring the seas to make their passage the more secure ; therefore in recompence and satisfaction of this care , and charge , the merchants have always used ( time out of mind ) to give an allowance unto the king , and his officers for the taking of this prisage of wines for the better provision of his houshold , the which allowance , and usage being continued time out of mind , hath made it to be a duty unto the king , and likewise because the king hath used to take one tun out of ten tuns , and two tuns out of twenty tuns ( for in ancient time , the ships that went for these wines being no great voyage , were not of much greater burden ) some have conceived that this was in nature of a tythe , paid unto the king , and as the particular pastor , which ministreth spiritual things for the food of the soul , hath of right the tenth part of his clear gains due unto him : so the king in that proportion being parens patriae , and the general pastor of all his subjects , protecting their lives and goods from violent oppression upon the seas hath received , and taken the tenth part of the wines brought in . but this only conjectured , and therefore i cannot warrant it to be a sure foundation to build on . as to the third , which is , at what time prisage is said to be due . i do likewise find some doubt to be made of it ; for some judges ( unto whose learning , and judgement because of their eminent parts , and singular industry , much reverence is to be ascribed ) have been of opinion that before such time as the bulk of the ship be broken up , or that it be arrived at the english port , prisage is due , and therefore if a ship after such time as it is come up into the haven , finding that wines will not bear any price , doth before the bulk of the ship be broken , depart out of the harbour , and go back beyond the seas , and there vent those wines . the king , this notwithstanding , may require his prisage at the merchants hands ; for the narrow seas being within the alleageance of the king of england , as it appeareth by divers of our year-books , so soon as the ships come upon them , there is the duty of prisage accrued unto the king , whereof it doth not lie in the power of the merchant to defeat him ; and also the very nature of prisage being to have one tun before the mast , and one other tun behind the mast , sheweth that the king hath an election to take his tuns of wine where he will , the which may not be , if the duty of prisage should arise out of the breaking of the bulk for when the bulk is broken , how doth it appear which is the tun before the mast , and which is the tun behind the mast ? so as the king may have the election to take his prisage , as the law giveth it unto him ; and they are of opinion , that if a ship come into the port laden with wines , that the king is not to expect his prisage where the merchant will unlade his wines ; for it being a certain duty accrued unto the king upon the coming into the port , he may take it at the port , and is not bound to wait upon the merchant from one port unto another , untill he will or can unlade his ship : but the residue of the justices which argued in this case , were of opinion , that prisage is not due , until the bulk of the ship be broken ; so as that if the merchant after his arrival at the port , will go unto another port , the king may not take his prisage before such time as they come unto that port where they unlade ; and their opinion was grounded upon the reasons following , that is to say ; first , because the reason and ground of the payment of prisage , being the security which the merchants enjoy by , and through the care and charge of the king upon the narrow seas , they ought to be secured of that benefit , before such time as they shall be forced to pay the duty ; and before the breaking of the bulk of the ship , they are not ascertained of their safe conduct , insomuch that howsoever they be in the port or harbour , yet they may have cause to put out into the main again , as if they were driven in there through danger of pyrates , or violence of tempests , their cocquet shewing their course to be bent unto another place , and it is no reason that the k. should take his duty before such time as the merchant be assured of his protection . secondly , incertainties are always odious in law ; for they are the mother of confusion , whereas the law expecteth and requireth order : and if the time expressed be alwayes ambiguous , or doubtful , it is careful in the determining and setting of it down certainly ; and for the most part where it is left to her construction , she giveth the longest time for the doing of it , whereby best advantage may be given unto the party which is to do it , the which may be manifest by divers instances of cases set down in our books which i do purposely omit to avoid too much prolixity ; wherefore it being the most certain , and the most equal time both for the king and merchant to have the prisage taken when the bulk of the ship is broken ; the law , to whose construction it is left , shall rather ordain the taking of it to be then , than at any other time ; for if the law should say , that it is a duty presently upon the coming upon the narrow seas , it should say , it is a duty before such time as the merchant can assure himself they are his wines to dispose , insomuch that before the coming into harbour , they may be swallowed up by the seas , or he may be dispoiled of them by enemies unto the king , or rebels unto the state. and if the law should determine the duty to the king when the ships are safely in the harbour , there might a great inconvenience ensue upon this judgement , because it may very well be , that their course was intended to another place , and they were driven in there only by misadventure , and it would be mischievous to have the ship rifled , and their wines disordered , before they had attained unto the intended haven . thirdly , this opinion is consonant unto the judgements in former times ; for it was ruled in the case of one kenniston , and boggius , in the fifth year of his majesties reign that now is , that prisage shall not be said to be due until such time as the bulk be broken , and the ship unladen . and likewise there is a record , by which it appeareth , that the king is to have prisage of every ship bringing vvine into england and unladen thereof , so as if it be not unladen then the king by that record is not to have prisage . besides , it appeareth by the record concerning the payment of butlerage by the merchant aliens , that the king is to have there two shillings of them for every tun within fourty dayes after the unlading ; so as the law pointeth at the unlading ; wheresore this prisage differing only because the vvines are paid in specie , it shall be an argument thus far to perswade , that the law will not appoint the time of taking the wines in specie before the unlading , when it giveth for the payment of the two shillings until sourty dayes after the unlading . fourthly , it was resolved that howsoever prisage of wines is a flower of the crown , yet is it not such an inseparable flower of the crown , but that it may well enough be granted over , for it is a matter of profit and benefit which is to redound unto the king , and it is not of the nature of a purachans meerly , for that it is inseperably annexed in privity unto the person of the king , that it may not be granted over . and accordingly it was resolved in the case of sir thomas vavasor , who married one of the daughters of alderman houghton , who had a grant of the prisage made unto him . and in the . of e. . in the patent-rolls it appeareth , that one fitzherbert had a grant made unto him , and by the same reason that a grant may be made of prisage , à fortiori may there be a grant made unto certain persons to discharge them of the payment of it ; for it is easier to make one capable in point of discharge , than by way of grant , and the charter made to the merchants strangers for the discharge of the payment of prisage . and the statute of . h . cap. . sheweth that a charter made for the discharge of prisage , is well , and allowable , fifthly , this grant made unto the mayor and commonalty , and their successors , quod de vinis civium nulla prisa fiat , is good enough , and the grant may well enough be made unto a body politique , and the benefit of the patent distributed unto a body natural ; for patents of that nature are usual in the year-book of the common laws of this our realm , and never any exception taken unto them when there hath been less warrant in reason to make them good , then there is for this our patent which we have here in hand : for the city of london being the metropolitan city of this land , the which may well be called the heart and epitome of the whole realm , and the chamber of the king , the merchants whereof do fill the coffers of the prince by their customes , and do supply the subjects of his majesty with all manner of necessaries , do encrease the honour of their nation by their commerce , and traffique abroad , and do strengthen the whole body of it by shipping , which are termed the wooden walls . it is reason that all charters made in their favour , and giving them immunities and priviledges , should receive a benigne interpretation , and the more especially also , because at this time all merchants strangers had a charter of discharge for the payment of prisage , but only that they were to pay two shillings in the tun ; and so if the merchants of london should not have had a charter of discharge , they would have been discouraged from trading for wines , because the merchants strangers would have been able to have afforded their wines at easier rates , because they were freed of some part of that charge , which the english merchants were burthened with . sixthly , as to the declaration , what persons shall be discharged of the payment of prisage within the words of this charter , it will be the better manifested by shewing the destinctions and degrees of citizens which are to be found , for there is mention made of five manner of citizens . the first of which is , he that is a citizen of london , for the bearing of offices in the city , and such special intents , because he is a freeman of the city , but he is not a citizen in residency and continuance in the city ; for he inhabiteth and dwelleth out of the city , and such a citizen as this , is not such a citizen as shall enjoy the benefit and priviledge to be discharged of the payment of prisage , according to the resolution given in the exchequer in the case of one knolls . trin. . h. . rot. . where it was ruled , that one that was a citizen and freeman of london but dwelt in bristol , might not partake of the benefit of this charter , insomuch , that he by reason of his dwelling out of the city , was only a citizen to a special intent . the second sort of citizens are those which are citizens in respect of their freedome , and likewise in regard of residence within the city , but are not such citizens as do keep a family and houshold within the city , but are inmates and sojourners , and they do harbour themselves under the roof of another , and a citizen of this nature , is not a citizen which is capable of the immunity granted by this charter ; for the discharge of payment of prisage , according to the resolution given in the exchequer , in the case of one snead and sacheneril . hill. . eliz. rot. . for such a citizen is not subject to scot and lot , as he that is a housholder , et qui non sentit onus , sentire non debet commodum . the third sort of citizens are those which do inhabit , reside , and keep a family in the city , but they are not freemen of the city , so as they may be chosen in any office , and undergo the charge of the city ; and as well as the common law doth exclude such citizens for devising lands in mortmaigne unto the guild of the city , according to the custome of the city of london , as appeareth by divers book-cases , as well shall the common law exclude them from enjoyning the benefit of the charter to be discharged of the payment of prisage . the fourth sort of citizens , are those which are both citizens , and freemen , and do reside , and keep family in the city of london , and they are not continuing citizens at such time as the bulk is broken , and the ship unladen ; for they were disfranchised before . these citizens likewise shall not enjoy the exemption granted for the discharge of the payment of prisage : insomuch that they were not continuing citizens at that time as the prisage ought to be taken . the fifth sort of citizens , are those which are both citizens , and freemen , and have their families and dwelling in london , and do continue citizens at such time as prisage , ought to be taken : now citizens of this kind are the real , proper , and natural citizens intended by this charter , which are to be discharged of prisage ; and therefore a woman which is a citizen of this kind , howsoever she cannot bear offices in the city as a citize● , is yet intended by the charter : and yet also in some cases , citizens of this kind shall not be intended within the words of this charter ; and therefore if the mayor and commonalty have a joynt stock of wines come into the port of london , now prisage shall be taken of these wine , not withstanding that every of them in their proper persons citizens , both residentiâ , familiâ , and continuatione ; for respect is not to be had to their natural bodies , but to their politique body , in which capacity the charter will not extend to them . so if one at the time , that he fraughteth a ship , be not a citizen in all the degrees , now howsoever afterwards before the return of the ship he be enabled in every respect , yet he shall not enjoy the benefit of the charter , insomuch that he was not so at that time that the ship was sent abroad . seventhly and lastly , what wines shall be discharged of the payment of prisage , it will better appear by the consideration had of the several kinds of properties ; and therefore he that shall have his wines discharged of prisage ought to have a property in them , quarto modo , that is , sibi solùm & semper ; and also he ought to have jus possessionis and jus proprietatis , and the one without the other will not serve the turn ; and therefore if a citizen and forreigner be joynt merchants for wines , now the wines of these joynt merchants shall not be discharged of the payment of prisage , insomuch that the citizen hath not a sole property in them , and it may not be distingnished which of the wines belong unto the citizen , and which to the forreigner , because of their joynt interest . but if two citizens be joynt merchants or tenants in common of wines , now these wines shall be within the compass of the charter to be discharged of prisage , because they are the wines of the citizens of london , according to the words and intent of the charter ; howsoever neither of them have a sole interest and property in them . and if a citizen and freeman of london hath wines pledged unto him by another citizen and freeman . now these wines upon their coming home shall not be discharged of the payment of prisage , insomuch that the citizen hath only a special property in them , and not any absolute property . so if a forreigner that hath fraughted ships beyond the seas for the bringing of wines into england , doth make a citizen of london his executor , and die , and the ship cometh into the port ; now these wines thus in the custody of the citizen shall not be discharged of the payment of prisage , for as much as the citizen hath only a property in the wines to the use , and behoof of the forreigner , and hath not any absolute property in the wines . and if one citizen of london that hath wines abroad coming into england , do make a forreigner his executor , and dieth , and this forreign executor doth imploy the stock that cometh of these wines so returned home after the death of him that set them forth , and wines are returned home , now howsoever these last wines so returned into england are assets in the hands of the executor , and in appellation are the goods of the first citizen , yet they are such wines as are capable of the discharge of prisage within the words of , the charter , because these wines came in as it were upon a new contract . and if a citizen do buy wines with an intent that a forreigner upon their coming home shall have these wines , now these wines shall not be discharged of prisage , and this deceit of buying them by a citizen , shall not any wayes avail him , no more then if a citizen buy cloth , in london for a forreigner he shall defeat the custome of forreign bought , and forreign sold , to avoid the forfeiture of them . so the wines which a forreigner buyeth of a citizen ; or that a citizen buyeth of a forreigner , shall not be discharged of prisage within the words of the charter , because they were not the wines of a citizen alwayes , from the time of the lading of them , until the time of the unlading of them , as they ought to be . the case concerning repairing of wharfes and docks . termino sancti mich. anno regni jac. regis . in the kings bench. cornelius fish chamberlain of london , distreined the goods of one walter keate , for a pain assessed by the common councel of london , and all the matter appeared upon the return of the sheriffs of london , which was very long ; but to this effect : they returned the usage , and power , and custome of the city of london , to make by laws by their common councel ; and that puddle-dock neer pauls-wharfe was an ancient place for lading and unlading of ships , boats , and lighters , and that it was in decay , and that for reparation of it , it was ordained , that every ship that should be loaden and unloaden there , should pay a peny for every load ; and that every carman for every load which he should carry from thence , shoul pay a penny ; and that the said walter keate had carried divers load , w●ich according to the rate of one penny for every load , did amount to the value of ten shilling ; and that the city did grant this assessment to the chamberlain , in recompence of the charges which ●e should expend about the said reparations and upon this certificate a procedendo was wayed , and it was alledged , that ●his by law being for the benefit of the city , was good by law , and ought to be obeyed , and so it came to be debated . ( yelverton henry ) prayed , that no procedendo might be granted , because the return and the matter of it , is against the common law , the weal ●ublique , and against the liberty of the city it self . by the councel sexto iacobi it was ordained , that as well citizens , as strangers , should pay , and the king could not grant●it to the city ; son it is an imposition not allowed by the law , first against citizens ; because although the ta● may be made for the genera● good of the city , yet it cannot b● imposed or taxed upon particula● persons , but upon every house o● the city , &c. but here it is particular and personal to this part of the city . also this dock was never repaired at the general charge of the city , but by the particular war● of baynards-castle . also the citizens of london shall not pay to● in any place of england ; and her the dock stands upon the passage o● the city , and every wharfe is as ● gate of the city , and therefore they may as well impose a tax upon every one which goeth out of any of the gates of the city ( which is unreasonable , and against law as out of this wharfe . and also here is no certain profit to the city , but this taxation is farmed for one and twenty years , for ten shillings a year to the city , which if it were a general charge , there ought to come some general benefit by it to the city . it is not like to the case of cloth , co. part . . fol. . because that was for the general good of the realm , and in the furtherance of the execution of divers statutes ; but this is neither in furtherance of either statute , or common law , but rather to the prejudice of both , because every citizen , in respect of his freedome , is equal to the lord mayor . and . eliz. in the common pleas , it was ordained by the common councel , that none should use any sand in the city , except it were taken out of the thames , and it was adjudged to be against law , and the officer of the mayor was committed to prison . and this dock did heretofore belong to the arch-bishop of canterbury , and hath ever been free , also here the assessment is unreasonable , viz. to pay for every load a penny , especially for inhabitans about , and neer the dock ; and so he prayed that there might be no procedendo . ( crook george ) was of the same side ; and he said , that by the act of common councel it is enacted , that none shall carry , &c. so that by that ordinance none shall carry a paile of water , but he shall pay a penny for it . also the assessment is to be levied , and to continue for twenty one years together , which is unreasonable ; and it hath been adjudged here , that an assessment levied for twenty one years , for reparations of a church , was not lawful . ( mosley of grays-inne ) prayed for a procedendo , and said , that it did not appear by the return , that k●ate was a citizen , and the judges are not to meddle with any thing which is not within the return , and he said it was a good by-law , founded both upon custome and prescription ; and he put taverner and cromwells case , pasch . . eliz. . . dyer , where the lord of a mannor made a by-law , that no tenant should put his beast into the common , before the ringing of a bell , upon pain to forfeit twelve pence , and adjudged a good ordinance , and he cited smith and shepherds cafe , . eliz. where there was a prescription for through toll , adjudged to be good , because it was for maintenance of high-wayes , so here it is for the weal publique , of that part of the city , and for all the city ; and it should be a great inconvenience , that this wharfe should not pay , add that all other wharfes should pay toll , and that was one wisemans case , . eliz. that wharfaye by prescription is good ; and . elizab. in hankshead and wooas case , where toll was paid for maintenance of the walls of salisbury ; for every pack of wooll which passed by , one penny , and holden to be a good imposition ; and the case of gravesend , where there was an imposition , that every one which landed at gravesend , should pay a penny toward reparation of the bridge , and good by the better opinion of . h. . of fair and market ( walter ) was of the same side , this by law is good : first , it is not against the rules of law , nor the prerogative of the king , nor the benefit of the subfect ; for by the statute of . h. . cap. . . that the city of london is conservator of the river of thames , from stanes to yealand , in the county of kent : also by the statute of . h. . cap. it is ordained , that the river shall not be stopped , ergo this by law is for the better execution of those two acts of parliament secondly , it is a benefit to the subject , because before , none could any thing there without danger ; but now by this means the rubbish is cleansed , and a stranger shall have a quicker and safer return , and the penalty upon the cloth , in the case before cited , co. part . . is a stronger case then this is , because dock hath continue all need to be cleansed ; and if such a tax should be for reparations of the walls of a city , it would be good : as to the objection , he answered , that as the said case of hallage cited before , co. part . . so this is a general in particular , and the tax upon the cloth was to be paid to a particular person , viz. the chamberlain , as here it is , who is a general officer for the city . the case of digging of sand was not good , because thereby a man was prohibited to use his his own inheritance : commoners may make a by law , that none shall put in his beasts before such a day ; but if the by law be , that one particular man shall not put in his beasts before such a day , that would not be good ; but our case is more general , and so prayed for a procedendo . ( mountague recorder . ) if this be overthrown , all the orders and ordinance of the city should be made void , and stand for nothing ; and he said that the very objection , that a tax could not be imposed upon strangers , was made in the case of hallage before ( yelverton henry . ) the case that walter hath put for the cleansing of rubbish , &c. may be good , but there is no such thing here , but tax only for landing , & adjurnatur . the custome of london , to fine one chosen by the commons to be sheriff , and refusing to hold . richard chamberlain a citizen , and freeman of london being chosen by the commons according to the custome of london to be one of the sheriffs of the city of london , is convented before the major , and commonalty to take the office upon him , or otherwise to take his oath that he is not worth ten thousand pounds ; upon his appearance he refuseth to take the oath , and likewise to execute the office : whereupon according to the custome of london he is fined four hundred marks , and committed to prison until such time as he enter into bond unto the major and commonalty for the payment of it . he becometh bound accordingly unto the major and commonalty for payment of the said sum at a certain day , and thereupon is enlarged . the four hundred marks are not paid at the day , whereupon the mayor and commonalty affirm a plaint against him in london for the said debt . the defendant obtaineth a habeas corpus to remove the body and the cause into the kings bench , upon a supposition that he was to have the priviledge by reason of a priority of suit in the kings bench , and upon returne of the habeas corpus , all this matter appeared unto the court , and it was moved by sir henry mountague , now lord chief justice of the kings bench , then one of the serjeants of the king and recorder of london , that a procedendo might be granted , whereby the major , and commonalty might proceed against him in the court at london . it being a customary suit meerly grounded upon the custome of london . but that was denied by sir edward cook chief justice , and the whole court , because by the law , chamberlain having cause of priviledge by reason of the priority of suit against him in the kings bench , might not be re-manded ; but he was to answer in that court. whereupon the major and commonalty did declare against him upon the said obligation in the kings bench. secondly , it was moved that the action upon this obligation might be laid in some indifferent county , and not in london ; forasmuch as the trial there must be had by those that were parties unto the action , it being brought by the mayor and commonalty . but sir edward cook , and the court would not upon this surmise take away the benefit which the law giveth to every plaintiff upon a transitory action , wich is to lay it in whatsoever county he will. and if there be any such cause as is surmised , then after plea pleaded , he may make an allegation , that the city of london is a county in it self , and that all the citizens there are parties to the action which is brought , whereby there may not be an indifferent trial. and upon this surmise , the court shall order the trial to be in a forreign county . the which was done accordingly : and so the matter proceeded . the case of the merchant-adventurers . king edward the third , in the year of his reign by letters patents doth incorporate certain persons by the name of the merchants-adventurers of england , and doth give power unto them to transport white clothes into divers parts beyond the seas , restrayning them from carrying over woolls . the merchants-adventurers do trade beyond the seas and continue the transposing of clothes white until the . of august , in the tenth year of his majesties reign that now is . at which time the king by his letters pattents doth encorporate the earl of sussex late lord treasurer of england , sir thomas vavasour , sir stephen soam , william cockayn , and others by the name of the merchants adventerers of the new trade of london with full power & authority to transport dyed , and dressed cloths into divers parts beyond the seas , with a restraint prohibiting all the old merchants-adventurers , which did not joyn themselves unto this new company to tranport any under the forfeiture of them , and also inhibiting the new merchants from transporting any clothes but such as are died and dressed . and after three years passed , they having power during that time to transport , white clothes : and there being a refusal of the old merchants adventurers to surrender up their patent ; the king bringeth a quo warranto against divers of the merchants of the old company by particular names , to know by what warrant they do without licence of the king transport clothes white , undied , and undressed beyond the seas . the merchants upon the return of the quo warranto do make their appearance ; and an information being exhibited gainst them by sir fr. bacon knight , now lord chancellour of england and then attorney general unto his majesty , cometh into the kings bench , and moveth the court that the old merchants adventurers might have a short day the next ensuing term , to answer unto the information exhibited against them . insomuch , that the new company of merchants adventurers standing at a gaze , as being uncertain of what validity the old patent would be , did slack to transplant the diers , and other tradesmen out of the low-countries into england , being necessary instruments for the puting in execution of this design , because there were not here in england those that were able to die and dress , in that manner that the low-country men did . and so there was in the interim a stop of the current of merchandizing with our cloth , the which being the principal commodity that we had here in england ; the fleece that causeth it , may well and aptly have the term of , the golden fleece ; and there being a stop made of the traffiquing and trading with these clothes , it is as dangerous unto the politique body of the commonwealth , as the stop of a vein could be to the natural body ; for as by the stop of a vein the blood is debarred of his free passage , and so of necessity there must be a consumption by the continuance of it follow unto the body natural : so traffique being the blood which runneth in the veins of the commonwealth , it cannot be but that the hinderance of it by any long continuance , must breed a consumption unto the state of the commonwealth ; wherefore , to open this vein , which was as yet somewhat stopped , and to give a more free passage unto the blood , he was a suitor unto the court , on the behalf of the company of the new merchant-adventurers , that the court would give expedition in this case ; for they conceived , that if this new design might take its full effect , as it was intended , it could not be , but of necessity there must a great benefit redound to the commonwealth . for first , whereas our state groweth sick , by reason of the many idle persons which have not means to be set on work , this dying and dressing of cloths within our kingdome , would give sufficient imployment unto them all , whereby there should be a cure to the lazy leprosie , which now overspreadeth our commonwealth . secondly , whereas now we send out clothes white , and the low-country-men receive them of us , and dye them and dress them , and afterwards transport them unto forreign parts , making a wonderful benefit to themselves , both in point of profit , and likewise in respect of maintaining their navy ; whereas , if the clothes were died and dressed by our selves , we might reap that matter of gain , and also be masters of the sea , by strengthening our selves in our shipping . thirdly , whereas there happeneth often a confiscation of all our clothes , and much disgrace and discredit lighteth upon our nation , and our clothes , by the abuse of the low-country-men , in stretching them a greater length than they will well bear , when they dye and dress them ; now it should be prevented , when they should never have the fingering of them , to put that abuse in practice : wherefore this patent made by king edw. the . bereaving the king and commonwealth of these great benefits and commodities , is against the law and so ought to be repealed . and day was given accordingly to put in their plea. at which time , many of the old merchants-adventurers being willing that trial should be made , whether the benefit intended unto the commonwealth might be compassed , did shew ( to their obedience unto the king , and desire of the good of their country ) surrender up their patent into the hands of his majesty ; since which time , it being found by experience that the project had not that success which they expected , and likewise cloth and wooll lay dead , because there was no vent for them abroad : the king according to his power reserved unto him in his patent , by which he erected , and created the new company of merchants adventurers of london , did make repeal and revocation of the said new patent and new company , and did redeliver unto the old merchants their patent , confirming it , and likewise by another charter did enlarge the liberties and priviledges of the old merchants , by reason of which grace of the king , the old company of merchants-adventurers of england are reestablished in that estate wherein they formerly were , and they do now trade again , as formerly they did , to the great content of the subject , and benefit of the king and country . certifying indictments upon certioraries . iohn forner , iohn evans , and divers others , being indicted before sir thomas hayes , lord mayor of london , sir henry mountague , serjeant unto the king , and recorder of london , sir thomas lowe , and divers others by vertue of a commission granted unto them ; a certiorari was directed unto them , as justices of peace out of the kings bench , for the certifying the said indictment , upon which certiorari , no return was made ; whereupon a second certiorari was awarded unto the said commissioners , commanding them to certifie the said indictment upon a pain , upon which certiorari , a return was made in this manner : that is to say , that king h. . in the . year of his reign by his letters patents , bearing the same date , did grant unto the mayor , aldermen , and sheriffs of london , that they should not be compelled upon any writ directed unto them , to certifie the indictments themselves , taken before them , but only the tenors of them , the which they have done accordingly ; and exception being taken unto this return for the insufficiency of it ; it was resolved by sir edward cook chief justice of the kings bench , sir iohn crook , sir iohn doddridg , and sir robert haughton , that the return , upon the reasons hereafter following , was insufficient . for first , the letters patents being granted unto them by the name of the mayor , aldermen , and sheriffs of the city of london , warranteth only the not certifying of indictments taken before them , as mayor , aldermen , and sheriffs of london ; and where the writ is directed unto them by that name , and they do not excuse them , in case where the writ is directed unto them as justices of peace , and where the indictments are taken before them as justices of peace , by virtue of the kings commission . and howsoever the mayor and aldermen are justices of peace by charter , yet insomuch that they are distinct powers , return made by them by the name of mayor and aldermen , where the writ is directed unto them ( as justices of peace ) will not be good . secondly , there being a resumption made by act of parliament in . h. . whereby all lands , tenements , grants , rent , and fees granted since the first day of his reign were resumed ; the letters patents made in . h. . unto the mayor and commonalty , are annihilated and made void , and so no hold may be taken of them ; and the statute made in . edw. . cap. . only confirmes those priviledges not heretofore revoked and repealed by act of parliament , or otherwise ; and howsoever there be a charter made by h. . in the first year of his reign , whereby restitution was granted of this priviledge , yet no advantage may be taken of it , because it was not spoken of upon the return , and the court may not intend it . thirdly , the letters patents of the king being the sole ground and foundation to make the return good , are not sufficiently returned unto the court , insomuch that it was said upon the return only , that the king by his letters patents did grant unto the mayor . commonalty , and sheriffs of london , that they should not be compelled to certifie the indictments themselves ; but it doth not appear , that they were sealed with the grand seal , and if they were not sealed with that seal , the letters patents may not be of any validity in law , howsoever they were sealed with the exchequer seal , or dutchy seal , in respect of which , they may well be called the letters pattents of the king. fourthly , the use hath alwayes been to remove indictments , and the record of them upon a certiorari awarded out of the kings bench , and there was never any denial made of it before this time ; and in . ed. . where a certiorari was directed unto them for the removing of an indictment of a woman which was indicted for being a common whore , the indictment was certified in obedience unto the writ , although in the end of the return , they shewed their charter , and prayed that it might be remanded , because it was an indictment only warrantable by the custome of the city , and not by the common law : and the court was of opinion in the return at the bar , to have imposed a fine , and to have awarded a third certiorari , but it was stayed , and the second return was amended . concerning orphans portions . the custome of london is , that if any freeman deviseth and , or other legacies of goods unto an orphan , that then the mayor and aldermen have used to take the profits of the land , and to have the disposition of the legacies , until such time as the legatees shall attain unto the age of twenty one years , or otherwise , being a woman , should be married ; and if the disposition of the profits of the lands , or of the personal legacies , were declared by the testator in his will , that then the mayor and aldermen have used , time out of mind of man , to convent the person trusted by the will of the testator before them , and to compel him to find sureties for the true performance of the legacies , according to the law of the realm , and the will of the testator ; and if they refuse to find sureties , then it is lawful to imprison them until they find sureties . the widow of a freeman of london dwelling in middlesex , bequeathed a legacy of a thousand pound unto her daughter after all debts and legacies paid , and upon condition that she should not marry without the assent of her executor , and maketh a freeman her executor , and dieth . the executor is convented before the court of mayor and aldermen , and required to put in sureties unto the chamberlain of london , according to the custome for the payment of a thousand pound , according unto the time limited by the will , and according to the will aforesaid . the executor denieth to find sureties ; whereupon he was committed to prison , and a habeas corpus being awarded out of the court of kings bench , to have the body of the executor , together with the cause ; all this matter appeareth upon the return . and now it was moved by richard martin late recorder of london , then an apprentice of the law , that the return was insufficient , and so the executor ought to be enlarged . first , in regard that the ground of the imprisonment was the custome of london , and the custome is against the law , and void , insomuch that it enforceth an executor to find sureties for the payment of a legacy , according unto the will , where the law requireth , that debts be paid , before such time as legacies be performed ; and the law giveth an election unto the executor , to pay which of the legacies he will , in case there be not sufficient to pay all the debts and legacies of the testator ; but this exception was disallowed by the said court , insomuch that the custome of london appeareth by the return to be , that he shall find sureties for the performance of the legacies according unto the law of the realm , and the will of the testator : so as if the executor had not sufficient to pay debts , and legacies , he hath the same power and liberty after such time as he hath found sureties , as he had before . secondly , except on was taken , because it appeared by the return , that the devisor was a woman , and also only the wife of a freeman , and not a free-woman , and she is not within the custom of london , which only speaketh of a freeman . but this exception was over-ruled ; for a woman being a free-woman within the statute of magna charta cap. . which enacteth , that no freeman shall be taken or imprisoned , &c. but by the lawful judgement of his peers : so that she being a barroness or countess shall be tried by her peers upon an indictment preferred against her , she shall also be reputed a freeman within this custome . secondly , the wife of a freeman having the liberty and priviledge to trade in the city , and so able to take benefit by it , she shall also be bound by the customes of it . thirdly , howsoever she was dwelling out of london at the time of the will made , she is a freeman within the compass of the custome . fourthly , it was objected , that this custome of london concerning orphans , was an antiquated custome , and had not been put in use by many years , and therefore ought not now to be put in ure to take away the liberty of a man , and especially also , because the life of a custome is the usage ; but this exception was over-ruled , for this custome is dayly put in ure . the custome in not removing body and cause upon habeas corpus . a petition being affirmed in london , by one hill , a citizen and freeman of london , against another citizen and freeman of london , upon a bond of a hundred pound , a summons is awarded against the said obliged , and the pretext being returned , that he hath nothing whereby he may be summoned within the city , upon a surmize made by hill the obligee , that one harrington , a citizen and freeman of london , is indebted in a hundred pound unto the first obligor , a summons is awarded , according to the custome of london of forreign attachments , for the warning of harrington , who is warned accordingly ; whereupon harrington procureth a habeas corpus for the removing of his body , together with the cause into the kings bench , upon which writ , a return is made in this manner ; that is to say . that london is an ancient city , and , that time out of mind of man , the mayor , aldermen , and citizens of london have had conusans of all manner of pleas , both real and personal , to be holden before the mayor , altermen , and sheriffs of london in london , and that in no action whatsoever they ought to remove the cause out of london into any other court , and do moreover shew a confirmation made by r. . in the seventh year of his reign of all their customes ; and so for this cause they had not the body here , nor the cause . and exception being taken to the insufficiency of this return , it was agreed and resolved by the whole court of kings bench , that this return made , was ill ; for common experience teacheth , that the usual course is , and alwayes hath been , that upon habeas corpus , the body , together with the cause , have been removed out of london , into the kings bench ; and likewise upon certioraries awarded out of the kings bench. records have been certified out of london into that court : for justice being to be done unto the citizens of london , as well in that court , as in the 〈…〉 proper court , the court of london being an inferiour court unto the court of kings bench , where the king is supposed to sit in person , ought to yeild bedience unto the writs awarded out of that court , as the supetiour court ; but if the cause should be such , that there should be a failer of justice in the kings bench upon the removing of the cause , because it is only an action grounded meerly upon the custome of london , then a return made of the special matter will be warrantable ; or otherwise if the return be made , that the custome of london is , that no cause , which is a meer customary cause , wherein no remedy can be had but only in london , according unto the custome of london , may well be allowed , so as the cause specially be returned into the court , whereby it may appear unto the court , that it is such a cause , which will not bear action at the common law ; for it is usual in the kings bench , that if the cause returned unto the court upon the habeas corpus , appear to be such a cause as will bear an action only by the custome , and not at the common law , the court will grant a procedendo , and send it back again to london , as if the cause returned , appear to be an action of debt brought upon concesit se solvere , or to be an aaction of covenant brought upon a covenant by word , without any specialty , for these be meer customary actions , which cannot be maintained , but by the custome of london ; and therefore that shall be remanded ; for if the kings bench should retain these causes after such time as they are removed , and should not remand them , there would be failing of justice , and the judges of the kings bench in the person of the king , do say , nulli negabimus , nulli vendemus , nulli differemus justitiam : and the reteining of these causes would be a denying of justice ; wherefore they do grant a procedendo , and remand it . the case concerning payment of tythes in london . richard burrel being seized in his demesne , as of fee , of a house , called green acre , a shop , and ware-house in the parish of grace-church street london , for which house , a rent of five pound yearly hath been reserved , time out of mind , in the third year of the king that now is , by indenture doth make a lease for five years unto one withers , of part of the house , and of the shop , rendring the rent of five pound by the year , at the four usual feasts , that is to say at the feast of the annuciation , &c. by even and equal portions . and in the same indenture it is further covenanted and agreed , that withers the leassee shall pay unto burrel the leassor , a hundred & fifty pound in name of a fine and income , the which said hundred and fifty pound is to be paid in manner and form following ; that is to say , thirty pound yearly , and every year during the said term at the four usual feasts , by even and equal portions , the term of five years expired , the said burrel in the tenth year of the said king , by indenture maketh a new lease for the term of seven years , of the said part of the house , and the ware-house , unto one goff , rendring the rent of five pound by the year , at the feast of s. michael the archangel , and the annunciation of the blessed virgin mary , by even and equal portions . and in the same indenture it is further covenanted and agreed , that goff shall pay unto the said burrell . l. in the name of a fine and income , in manner and form following ; that is to say , twenty five pound yearly , during the said te●m , at the said two usual feasts , by even and equal portions . dunn parson of grace-church , exhibiteth his petition unto the then lord mayor of london , against the said burrel and goff , wherein he supposeth , that tythes are paid unto him only , according to the rate of five pound by the year , where in truth he ought to have an allowance according unto the rate of thirty pound by the year . the lord mayor , by the advice of his councel , doth call the said burrell and goff before him , and upon full hearing of the said cause , doth order the p●yment unto dunn , according unto the rates of five pound by the year , and not according to the rate of thirty pound by the year ; whereupon the said dunn doth exhibit his bill of appeal unto the lord chancellour of england in the chancery , wherein he doth make a recital of the decree made , and established by act of parliament , in . h. cap. . and also of the case special , as it standeth , charging the said goff and burrell with a practice of fraud and covin , in the reservation of this twenty five pound by year , by way of fine and income , and defrauding him of that which belonged unto him : the said goff and burrell do make their answer , and shew that the rent of five pound by the year is the ancient rent reserved , and that they are ready , and have often tendred the payment of their tythes , according to that proportion , but it hath been denied to be accepted , and they do take a traverse unto the fraud and covin wherewith they stand charged . and upon this answer , dunn the parson demurreth in law. and this case was first argued in the chancery by sir francis moor serjeant , and thomas crew , on the behalf of dunn ; and by sir anthony benn , late recorder of london , and iohn walter on the part of the defendants . the lord chancellour having called sir henry mountague , cheif justice of the kings bench sir henry hobart , chief justice of the common pleas ; sir iohn doddridg one of the justices of the kings bench ; and sir richard hutton , one of the justices of the common pleas , to be his assistants ; and after two arguments heard on each side in the chancery : upon suit made to the king : by sir francis bacon , then lord chancellour of england ; a special commission was granted unto thomas lord archbishop of canterbury , sir francis bacon lord chancellour of england , thomas earl of suffolk late lord preasurer of england , edward earl of warwick keeper of the privy seal , william earl of pembrook lord chamberlain of the kings houshold , iohn bishop of london , bishop of eli , sir henry mountague , sir iulius caesar , master of the rolls , sir iohn doddridg , and sir richard hutton , wherein there was a special recital of the question , and cause depending between dunn on the one part , and burrell and goff on the other part ; and power given unto them for the hearing and determining of this cause , and likewise for the mediating between the citizens of london , and the parsons of the several parishes and churches in london , and making an arbitrary end betwixt them , whereby a competent provision may be made for the ministers of the churches of london , and too heavy a burthen may not beimposed upon the citizens of london , with a command further , that they shall certifie the king what was done in the premises . and this commission was sat upon at york-house where the case was argued at several times by sir randal crew , and sir henry finch serjeants of the king , on the part and behalf of the ministers of london and by sir henry yelverton attorney of the king , and sir thomas coventry solicitor of the king , on the behalf of the citizens of london ; and because the main question remained as yet undetermined and no resolution is given either in point of law , nor arbitrary end by way of mediation : i shall only open the parts of the case , and make a summary report of them without further debate of them . the case divideth it self into six parts ( that is to say . ) first , whether any thing can be demanded by the person for houses in london , according to the course of the common law ? secondly , whether custome can establish a right of payment of any thing unto the parson for houses , and of what nature the payment established shall be ? thirdly , what was anciently payable by the citizens of london for their houses unto the ministers of london and how grew the payment ? fourthly , whether this twenty five pounds reserved upon a covenant by way of fine and income , be a rent within the words of the decree made , . h. . cap. ? fifthly , whether this reservation of twenty five pounds by the year , by way of fine and income , shall be adjudged to be a rent within the intent and meaning of the statute an decree , or no ? sixthly , who shal● be judge of the tithes for houses in london ? and the remedy for the parson , in case that payment be not made unto him , according to the decree . as to the first part , which is , whether by the common law , any thing can be demanded for the houses in london ? it is to be agreed , and clear that nothing can be demanded . for that which the parson ought to demand of houses , is tythes ; and it is improper , and cannot be , that tythes can be paid of houses . first , in regard that houses do not increase , and renew , but rather decrease for want of reparations , and tythes are not to be paid of any thing , but such things as do increase , and renew ; as it appeareth by the levitical law , and the common law of the land. secondly , houses are matters of inheritance , whereof a praecipe lieth at the common law. and the rent reserved upon a lease made of them , is likewise knit unto the inheritance , and parcel of it ; so that it shall go along unto him that hath the inheriritance ; and therefore shall descend un●he heir : and it is a rule in law that tythes are not to be paid of part of the inheritance , but they ought to be paid of such things as renew ; upon which reason it is that tythes by the common law of the land are not to be paid of slate , stone , and cole digged out of the pit. thirdly , houses being built only for the receiving , habitation , and dweling of men , and for conveniency of protection against the scorching heats in summer , and tempestuous storms in winter , without any profit at all redounding unto the owner . and the parson being to have a benefit otherwise , in the payment of personal tythes arising through his industry in the house , no tythes can be demanded for the houses themselves , or for the rent reserved upon them . fourthly , the decree made . h. . which exempteth the houses of noblemen from the payment of any rate-tythes , sheweth the common law to be , so that houses of themselves are to be discharged of the payment of tythes , and accordingly it hath been adjudged in divers cases hapning at the common law : that tythes by the course of the common laws may not be demanded for houses , but they are to be discharged . as to the second point , which is , whether custom can establish a right of payment of any thing unto the pason for houses ? it is clear that it may well enough : for it may well be , that before such time as any house was built upon the ground where the house stood , there had been a summe of money paid for the profits of the ground in the name of a modus decimandi , and so howsoever the house is built upon the ground , yet the modus continues , and is not taken away by it ; and so there being a continuance of payment of the modus after the building of the house , time hath made it to be a payment for the house . but this payment is to be termed a modus decimandi , and cannot be well called a tithe paid for houses , because as it is formerly said , tithes may not be paid for houses ; and all this appeareth by doctor grants case in the eleventh report . as to the third point , which is , what was anciently paid by the citizens of london , unto the ministers of london and how the payment grew ? it appeareth by the records of london , that niger bishop of london , . h. . made a constitution in confirmation of an ancient custome formerly used time out of mind , that provision should be made for the ministers of london in this manner , that is to say , that he which payeth the rent of twenty shillings for his house wherein he dwelt , should offer every sunday , and every apostles day , whereof the evening was fasted one half-penny : and he that paid but ten shillings rent yearly , should offer but one farthing ; and all this amounted unto but according to the proportion of . sh . . d. per pound : for there were fifty two sundayes , and but eight apostles dayes , the vigils of which were fasied . and if it chanced that one of the apostles dayes fell upon a sunday , then there was but one half-penny , or farthing paid ; so that sometime it fell out to be less by some little then . sh . . d. per pound : and it appeareth by our book-cases in edward the third his reign , that the provision made for the ministers of london was by offerings and obventions , howsoever the particulars are not designed there , but must be understood according to the former ordinance made by niger , and the payment of . sh . . d. in the pound , continuing until . k. ric. . thomas arundel . arch-bishop of canterbury made an explanation of the constitution made by niger , and thrust upon the citizens of london two and twenty other saints days then were meant by the constitution made by niger , whereby the offerings now amounted unto the summe of . sh . . d. per pound ; against which explanation there being some reluctation by the citizens of london , pope innocent in . h. . granted his bull , whereby the former explanation was confirmed ; which confirmation , notwithstanding the difference between the ministers and citizens of london about those two and twenty saints dayes which were added unto their number , pope nicholas by his bull in . h. . made a second confirmation of the explanation made by the said arch-bishop : against which the citizens of london did contend with so high a hand that they caused a record to be made , whereby it might appear in future ages , that the order of explanation made by the arch-bishop of canterbury was done without calling the citizens of london unto it , or any consent given by them . and it was branded by the name of an order surrepritiously , and abruptiously gotten and therefore more fit to have the name of a destructory then a declaratory order : the which contending notwithstanding , as it seemeth the pain was most usually made according unto the rate of . sh . . d. in the pound ; for linwood , who writ in the time of k. h. . in his provincial constitutions debating the question , whether the merchants and artificers of the city of london ought to pay any tythes ? sheweth , that the citizens of london by an ancient ordinance observed in the said city are bound every lords day , and every principal feast-day , either of the apostles , or others whose vigils are fasted to pay one farthing for every ten shillings rent , that they paid for their houses wherein they dwelt ; and in . h. . there was a composition made between the citizens of london and the ministers of london , that a payment should be made by the citizens according unto the rate of . sh . . d. in the pound , and if any house were kept in the proper hand of the owner , or were demised withoutreservation of any rent ; then the churchwardens of the parish , where the houses were , should set down a rate of the houses , and according unto that rate and payment should be made . after which composition so made , there was an act of common councel made . e. . in london , for the confirmation of the bull granted by pope nicholas . but the citizens of london finding that by the common lawes of the realm , no bull of the pope , nor arbitrary composition , nor act of common councel could bind them in such things as concerned their inheritance ; they still wresiled with the clergy , and would not condes●end unto the payment of the said elevenpence by the year , obtruded upon them by the addition of the two and twenty saints days , whereupon there was a submision unto the lord chancellour , and divers others of the privy councel , and they made an order for the payment of tythes according unto the rate of . sh . . d. in the pound : the which order was first promulgated by a proclamation made , and afterwards established by an act of parliament made . h. . cap. . in confirmation of which said order there was a decree made . h. . with some further additions , the which said decree was confirmed by an act of parliament made . h. . cap. . so as it appeareth by that which hath been formerly said , that the first payment was only according unto the rate of . sh . . d. per pound ; afterward , the payment was increased to the rate of . sh . . d. per pound : and lastly , there was an abatement and payment made only according to the rate of . sh . . in the pound . the first payment grewby custome , the second by constitutions , and bulls of the pope ; the last by decree in the chancery . as to the fourth part , which is , whether this twenty five pounds per annum , reserved by way of sine and income , be a rent within the words of the decree , or statute , or not ? it was clearly agreed , and resolved , that it was not a rent . for it may not be said either a rent-service , rent-charge , or rent-seck ; and there are only three manner of rents , et argumentum à divisione fortissimum . secondly , it hath not the properties and qualities of a rent ; for it shall not be incident to the reversion of the house to pass , or descend with it , it shall not be extinguished by the purchase of the house not suspended by an entry in the house , nor apportioned by an eviction of part of the house . thirdly , the party himself in his indenture of lease hath called it a fine , and income , and hath expressed the days of payment for it , as a fine and income ; and therefore now it may not well be said to be a rent either in the judgement of the common laws , or ecclesiastial laws , or in common accepration . as to the fifth part which is , whether this twenty five pounds by the year , thus reserved upon a covenant by way of fine and income , be a rent within the intent and meaning of the decree made . k , h . cap. ? it was conceived by those that argued on the behalf of the ministers of london , upon the reasons hereafter following that the reservation of twenty five pounds by the year , by way of income , was a rent within the meaning of the decree , and that the plaintiff ought to have the rate-tythes paid unto him , according to the proportion of thirty pounds by the year , and not according unto the rate of five pounds by the year only ; first , in regard that this fine being profit which ariseth by reason of the house , and being payable at the same times , that the first five pounds ( which without question is a rent ) is payable , and upon the same conditions may well be said a rent ; both out of the etymology of the word , by common acceptation of the thing , by the judgement both of common laws , and of the laws of the church and so is a rent within the intent of the decree ; and the nameing of it a fine , or income shall not cause an evasion out of the law. secondly , this decree , and act of parliament being made for the avail of the church , and setling of the revenue thereof ; shall have as liberal construction to give life unto the true intent and meaning of it , as may be , and the slight of payment of it , as a gross sum by way of fine and income upon a covenant made by goff the leassee , shall not defeat the good provision made by the decree . thirdly , this . sh d. in the pound being the labourers hire , and given him in satisfaction and recompence of all manner of tythes , either personal , predial , or mixt , the decree made concerning it , ought to be extended and enlarged so far , as by reasonable exposition it may , and is not any wayes to be restrained , whereby to give way to any cautelous provision made by the party . fourthly , the common law , and statutes having all with one voice , condemned fraud , covin , and deceit used in any manner of kind or way , and bandying themselves against it , whereby to extirpate and root it out of the hearts of all ; and to prevent it from being put in ure in the actions of any man ; it is great reason in this case , which concerneth god , the church , religion , and learning , to suppress all manner of acts which may any way have a taste , or touch of fraud . wherefore this fine , or income thus reserved by way of covenant , having the appearance of fraud , shall be taken to be a rent , within the intent , and meaning of the decree ; and way shall not be given to this device , whereby to defeat the church and ministers of it of their due . but those that argued on the behalf of the citizens of london , were of opinion that this fine , and income was not within the intent and meaning of the decree ; for the decree being that the citizens and inhabitants of the city of london , and liberties of the same for the time being shall yearly for ever without fraud , or covin , pay their tythes to the parsons , vicars , curates of the said city and their successors for the time being , after the rate hereafter following ; that is , to wit , of every ten shillings rent by the year , of all , and every house , and houses , shops , warehouses , cellars , and stables within the said city , and liberty of the same , sixteen pence half-penny , and of every . sh . rent of all and every such house , and houses , shops , wa●houses , cellars , and stables within the said city , and liberties , . sh . . d. and so above the rate of twenty shillings by the year , ascending from ten shillings to ten shillings according to the rate aforesaid . and where any lease is , or shall be made of any dwelling house or houses , shops , warehouses , cellars , or stables or any of them , by fraud , or covin , reserving less rent then hath been accustomed , or is , or that any such lease shall be made without any rent reserved upon the same by reason of any fine , or income paid before hand or by ay fraud , or covin , that then , and in every such case the tenant or farmer ; tenants or farmers thereof shall pay his or their tythes of the same , according to the quantity of such rent , or rents , as the same house , or houses , shops , warehouses , cellars , stables , or any of them were last letten , without fraud or covin , before the making of such a lease . it appeareth that the decree aimeth at a rent , and not at a fine , or income , for within the words above mentioned , it appeareth that there is a difference , and distinction made between a fine , and an income , and the intent of the maker of the decree , is best drawn and understood by the words of the decree , wherefore the party leassee having expressed himself that this twenty five pounds by the year , shall be paid in name of a fine , and income . and the decree it self shewing that by reason of a fine , or income , less rent is reserved , it may not be said that this twenty five pounds by the year , shall be a rent within the meaning of the decree , when there is a rent of five pounds also reseserved , beside this income . secondly , this decree made in . h. . being penal unto the citizens of london , because it inflicteth imprisonment upon him , upon his non-payment of his tythe according to the rent reserved , and being also in advantage of the ministers of london because , by vertue of this decree , the minister is to have according to the rate of . sh . . d. in every twenty shillings , where anciently he had but . s. . d. it is no reason to extend it by equity , and to construe that to be a rent within the intent and meaning of the decree , which of it self is a fne , or income . thirdly , there never hauing been above the rent of five pounds by the year , reserved upon any lease made , it cannot be taken to be any covin , or collusion . when the ancient rent is reserved , insomuch , that now so much as the law requireth , is done and besides where the common law or statute law shall take notice of a fraud , it ought to be in case where the thing in which the fraud , or deceit was supposed , is formerly in being ; for a fraud may not be committed to a person , or thing not in being . fourthly , it is to be reserved , so that if no rent at all had been reserved , there might not any more have been demanded , but only according to the rate of the rent , which was last reserved for the houses ; wherefore the ancient rent of . l. being here reserved , it cannot be , that within the intent and meaning of the decree there can be more rate-tythes demanded , then according to that rent . and besides the very words of the decree , intimates that there is no fraud within the meaning of the decree , but only where by reason of the fine , or income , there is not rent at all reserved , or a less rent then was anciently reserved ; wheresore in the case at the barre , the old rent being reserved , there may be no fraud at all . as to the sixth , and last part , which is , who shall be judge of the payment of tythes for houses in london , and the remedy for the recovery of them ? it is apparent out of the words of the decree , that the mayor of the city of london is judge , and is to give order concerning them ; and suit is not to be made in the ecclesiastical court for them ; and if it be , a prohibition is to be granted , insomuch , that the party grieved resorteth unto another judge then the statute hath appointed . but if the mayor do not give aid within two moneths after complaint made , or do not give such aid as is fitting ; then resort is to be made unto the lord chancellour of england , who hath three moneths given him for ending of the said cause . whereunto is annexed divers ancient customs , and usages of the said city of london . newly re-printed . london , printed for abel roper at the sun against st. dunstans church in fleet-street . . divers ancient customs and usages of the city of london . in plato ferre in hustings london , viz. that all the lands , tenements , and hereditaments , rents , and services within the city of london , and the suburbs of the same , are pleadable in the guild-hall within the said city , in two hust . of which , one hust . is called , hust . of a plea of land ; and the other hust . is called , hust . of common pleas , and the said hustings are kept in the guild-hall , before the mayor , sheriffs , and other of the said city , every week upon munday and tuesday , that is to say , munday to enter demands , and to award non-suits , and allow essovnes , and on tuesday to award defaults , and to plead , saving at certain times , and festival dayes , and other reasonable causes , on which times no hust . may be kept by custome of the said city . nota quod hust . of pleas of land , must be kept one week apart by it self , and the hustings of common pleas one week by it self , at the said days , yet the inrolements of the said hust . make mention only of munday . hust . of pleas of land. in hust . of a plea of land , are pleaded writs of right patent , directed to the sheriffs of london , in which writs there are such process by custome of the said city , viz. the tenant , or tenants at the first , shall have three summons to the tenants , delivered at three hust . of plea of land next following , after the livery of the writ , not demanding the tenants at any the hust , aforesaid : and after the three summons ended , three essoynes , and other three hust . of plea of land , then next following ; and at the next hust . after that three essoyns ; if the tenants make default , process shall be made against them by grand cape , or petit cape after appearance , and other process , as at the common law. and if the tenants appear , the demandants shall declare against the tenants in nature of what writ they will , except certain writs which are pleadable in the hust . of common pleas , as shall hereafter be shewed , without making protestation to sue in nature of any writ , and the tenants shall have the view , and shall be essoyned after the view , at the common law : and shall also have the tenants essoyned after any appearance by the custome of the city . and although one such writ be abated after view by exception of joyntenants or other exception dilatory , and although the same writ be restored , the tenants by the custome of the said city shall have the view in the second writ , notwithstanding the first view had ; and if the parties plead to judgement the judgement shall be given by the mouth of the recorde● , and six aldermen had wont to be present at the least , at every such judgement given ; and every beadle by advise of his ald●●man , against every hust . of pleas of land shall cause to be summoned twelve men , being freeholders of the best and most sufficient of his wa●d , to come to the guild hall , to pass an enquest if need be , if there be so many men of heritage within the same ward ; and if the parties pleading come to an enquest , then shall the enquest be taken of landed men , being freeholders of the same ward where the tenements are , and of other three wards nearest adjoyning to the place where the terants are ; so that four men of the same ward where the tenants are , shall be swo●n in the same enquest , if there be to mary . and no damages by the custome of the city are recoverable in any such writ of ●ight patent : and the ●●ques● may pass the same day by such common summons of the beadle if the parties be at issue , and the juiors do come ; otherwise process shall be 〈…〉 the jury to come at the next hust . o● pleas of ●ard by precept directed from the major to the sheriffs , and the sheriffs shall be ministers by commandement of the major to serve the writs , and do the execution of the same , albeit the original be directed to the major and sheriffs in common ; and you shall understand that as well the tenants as demandants may appoint their attorneys in such pleas. and if the demandants plead against the tenants in the nature of a writ of right , and he parties come to a jury upon the meer right , then shall the jury be taken of twenty four , in the nature of a grand assize , as alwayes the custome requireth , that six of the ward be of the jury of twenty four . and the tenants in all such writs may vouch to warrant within the said city , and also in forreign county , if the vouchers be not tenants within the same city . and if the tenants in such writs vouch to warrant in forreign county ; in this case process cannot be made against the voucher by the law of the city ; then shall the record be brought before the justices of the common pleas at the suit of the demandant , and then process shall be made against the vouchee ; and when the voucher shall be ended in the same court , then all the parol shall be sent back again into the hust . to proceed further in the plea according to the custome of the city , and certain statutes . and also if the tenants in such writ plead in bar by release , bearing date in forreign county , or forreign matter be pleaded that it cannot be tryed within the city , then the defendant shall cause the process to come into the kings court , to try the matter there where it is alleadged , as the matter is there found , the proceeding shall be sent back again into the hustings to proceed further therein , as the case requireth ; and all that time the suit shall cease in the hust . as hath been heretofore : and also it hath been heretofore accustomed that a man may say in hastings of pleas of land to have execution of judgement given in hust . in nature of scirefacias without writ . and you must note that any such summons made to the tenants in a writ of right patent is made two or three days before such hust . or the sunday next before the same hust . if erroneous judgement be given in the hustings of london before the major and sheriffs , it shall be reserved by commission out of the chancery directed to certain persons to examine the record and process . if erroneous judgement be given before the sheriffs in london , the defendant may sue a writ of error before the mayor and sheriffs in the hustings . hustings of common pleas in hust . of common pleas are pleadable writs called ex gravi querala , to have execution of the tenants out of testaments , which are enrolled of record in the hust . writs of dower , unde nihil habet , writs of gavelets of customes and services instead of cessavit , writs of error of judgment given before the sheriffs , writs of waste , writs of participatione faciend . among partners , writs of quid juris clamat & per quae servitia , and other the writs which are closed & directed to the mayor and sheriffs , and also replegiaries of for goods and distresses wrongfully taken . these are pleadable before the mayor and sheriffs , in these hust . of common pleas by plaint without writ ; and not as before , that the sheriffs are ministers to do the office of ferving these writs and replegiaries by the majors preceps directed to the same sheriffs . and the process is thus . first , in the writ of ex gravi querela , warning before hand shall be given to the tenants two or three dayes before the hust . or the sunday be o●e , as in plea of land ; and so shall be done of all other summons touching the same hust . and if warning be given and testified by the sheriffs or his ministers , the tenants may not be essoyned ; and if the tenants make default at the same warning testified ; then the grand cape shall be awarded ; and if they appear , they may be essoyned at the view . and hereupon all other process are made plainly , as is said in a writ of droit patent in the hust . in a plea of land. in a writ of dower , unde nihil habet , the tenants shall have at the beginning three summons and one essoyn after the three summons , and after these shall have the view , one essoyn and the tenant in such writ of dower shall have the view , although they enter by the husband himself demanding the same , albeit he died seized ; and also the tenants may vouch to warranty , and after be essoyn●d after every appearance ; and all other process shall be made as in a writ of right in the hust . of pleas of land aforesaid : and it the demandant recover dower against the tenant by default ●o by judgement in law in such writ or dower ; and the same wife of the demand●nt alledgeth in court of record that her husband died seized ; then the major shall command ●he sheriffs by precept , that they cause a jury of the vi●inity where the tenants l●e against the next hust . of common pleas to enquire if the husband died seized , and of the value of the ●enements and of the damages ; and 〈◊〉 recover by verdict the damages shall be enqui●ed by the same j●y . in a writ of gavi●et , the ten●nts shall have three 〈◊〉 and three essoynes , and they also shall have tha● view , they may vouch to 〈…〉 and forreign . and they shall be essoyned and shall have other exceptions , and all other process shall be made as in a writ of right , &c. but if the tenant make default after default , then the defendant shall have judgement to recover and hold for a year and a day , upon this condition , that the tenant may come within the same year and a day , then next following , and make agreement for the arrearages , and find surety , as the court shall award , to pay the rent , or the services faithfully from thenceforth , and shall have again his tenements ; and within the same year and day , the tenant may come in court by scire fac . and shall have again his tenements , doing as aforesaid ; and if the tenant come not within the year and the day , as is aforesaid , then after the year and the day , the defendant shall have a scire fac . against the tenant to come and answer , whether he can say any thing why the defendant ought not to recover the tenements quite and clearly to him and his heirs for ever ; and if the tenant come not to shew what he can say , then judgement shall be given , that the defendant shall quite recover the land for ever , according to the judgement , called shartford by custome of the same city . in a writ of waste , process shall be made against the tenants by summons , attachment , and distress , according to the statute in that behalf made ; and if the tenant come and plead , then he shall have an essoyn , and so after every appearance ; and if he make default at the grand distress , then shall commandment go to the sheriff by the mayors precept , that the sheriff shall come to the place wasted , and shall enquire of the waste and damages according to the statute , and that they return the same at the next hust . of common pleas , and the plaintiff shall recover the place wasted , and the treble damages by the statute . in a writ of error of judgement , given in court before the sheriffs in actions personal , and in assizes of novel desseizen or mortdanc . taken before the sheriffs and the mayor , shall make a warrant to the sheriffs , to cause the record and process to come at the next hust . of the pleas , and that they cause the parties to be wa●ned to hear the record , and after the record and process be in the hust . although the defendant come by warning , or make default , the errors shall be assigned , and there the judgement shall be affirmed or reserved , as the law requireth : and it is to be noted , that by custome of the same city , that when a man is condemned in debt , or attaint of damages , in any action personal before the sheriffs , and bringeth such a writ of error he which b●ingeth the writ , must before he be delivered out of prison , find sufficient sureties of men resident within the city to be bo●nd before the mayor and sheriffs to pay the money or to being in the body taken in case the judgment be affirmed ; and in like sort is to be done where damages are recovered in assize before the sheriffs and coroners . in a writ of replegiari , the process is such , that if any one take a distress or other sole thing within the said city , he which oweth the goods , may come to one of the sheriffs , and shall have a minister at the commandment of the court to go to the party that took the goods , and if he may have the view to praise them by two honest men , and then shall a plaint be made in the sheriffs paper-office in this wise . t. s. queritur versus i. l. de averus suis injuste capt. in dominio suo vel in libero tenemento suo in ●arochia sancti &c. and the same party shall then find two sufficient sureties , to sue and make return of the goods , or the p●ice thereof , in case the return be awarded , and so shall have deliverance ; and the parties shall have a day prefixed at the next hust . of common pleas , and then at the next hust . of common pleas , the sheriff shall make a bill containing all the matter and the plaint , and shall carry the bill to the same hust . and there it shall be put upon the file , and the parties shall be demonded at what day the one or the other may be essoyned of the common essoyn ; and if that day the plaintiff maketh default , return shall be awarded to the avowant , and return in such case is awardable three times by the custome of the city , and the third time not reprisable ; and at that time the avowant maketh default , then it shall be awarded , that the goods remain to the plaintiff ; viz. that the goods remain without any recovering ; and if it be that the sheriff cannot have view of the distress taken , then he shall certifie it into the said hust . and there shall be awarded the wetherum , and upon that , process shall be made ; and if the parties come , and avowry be made , and pleaded to the judgement , or to the issue of the inquest , then shall judgement be given , or process , to cause the jury to come , as the case requireth , and the parties may be essoyned after appearance ; and if the party claim property in the distress , and then certifie the same in the hust . and the process shall be made by precept made to the sheriff to try the property , &c. and although the party be essoyned of the kings service in a replegiare , and at the day that he hath by essoyn , make default ; or bringeth not his warrant , he shall not be cleared of damage . in a writ of particepat faciend to make partition between parceners of the tenants in london ; the writ closed , shall be directed to the mayor and sheriffs , containing the matter according to the form of such writ , and the parties shall be warned by precept from the mayor directed to the sheriff , and the tenants may be essoyned and if they come , they may plead their matter ; and if they make default , the writ of partition shall be awarded by default ; and every beadle of the said city , by the advise of his alderman against every hust . of common pleas , shall cause to be summoned twelve men , being free-holders , of the best and most sufficient of his ward , to come to the guild-hall aforesaid , and to pass in juries , if need be , if there be so many men landed in the said ward ; and the juries shall be taken , as before is said in the hust . of plea of land. and note , that writs of exigent are taken out of the hust . as well in hust . of common pleas , as of pleas of land , but those exigents that are taken in the one hust . are not to be sued in the other hust . and at the fifth hust . the utlaries and weyneries shall be given in full hust . before the mayor and aldermen by the mouth of their recorder ; and also all judgements which are given in the hust . shall be given in the same manner and the exigent after every hust . shall be enrolled , and sent into the chamber of the guild-hall aforesaid . and you must note , that all amerciaments incident to the said hust . pertain to the sheriffs of the said city ; and that the aldermen of london shall be su●moned to come to the hust . and oug●● by custome of the city to be summon by one of the sheriffs officers , sitti●● upon a horse of a c. s. price at least . assize of mort d'ancest . in london . the assizes of mort d' ancest . a● holden and determinable before the sheriffs and coroners of london , o● the saturdayes , from fourteen days t● fourteen days at the guild hall , for which the process is this viz. he that wil● have such assizen , shall come in the hust . or into the assembly of the mayo● and aldermen in the chamber of the guild hall , any munday , as is said in the assize of fresh force , and shall make a bil● containing the form of the assize o● mort d'ancest according to the case , an● that bill shall be enrolled , and after the common clerk shall make another b●● containing all the matters of the fin● bill , making mention of the title of the hust . or of the day of the assembly of the mayor and aldermen , and this bill shall be sent unto the sheriffs , or either o● them to serve , according to the custom ; and whi●● bill shall be served by any serjeant or other minister of the sheriffs viz. the land serjeant the wednesday next after the delivery of the bill , shall make summons to the tenants demand , by witness of two free holders , men of the city , that they be at the guild hall the saturday next following to see the recogni●ance , if they will ; against which saturday , the defendant may sue the next friday before together , and summon the jury ; and so afterwards against the saturdayes , from fourteen dayes to fourteen dayes at his will , and so may the tenants sue if they will , for their celiverance ; and the gathering of the pannels of such juries shall be done by the sheriffs and their ministers , or by the mayor and aldermen , if any of the parties will require it upon any reasonable cause , in such sort as is used in assize of fresh-force , and in such assizes of mort d'ancest . the parties may be assigned as at the common law , and the tenant may vouch to warrant within the city and also in forreign county , if the vouchee have no lands within the city , and if the tenants plead release , bearing date in forreign county , or other forreign matter that cannot be tryed within the city , or that the vouch to warrant in forreign counties , he that hath nothing within the city , then at the suit of the party , shall cause the record to come into the kings county , by writ directed to the sheriff and coroner and there shall such forreign pleas , and forreign vouchers , be tryed and determined , and sent back again to the said sheriffs and coroners , to go forward and proceed , according to the custome of the city ; and continuance shall be made in such assizes upon the causes proceeding , and upon other causes reasonable ; and when the assizes shall be determined and judgement given , then the same assizes shall be ingrossed , and entred upon record , by the said sheriffs and coroners , and afterward sent to the guild-hall to remain there of record , according to the order of assize of fresh-force , hereafter following . assizes of novel disseizen , called fresh-force in london . the assizes of novel desseizen , called fresh force of london , and tenements and rents within the city of london , of disseizins made within . weeks , are holden and determinable before the two sheriffs , and the coroner of the said city in common , every saturday in the guild-hall ; except certain times wherein the assize cannot be holden for reasonable cause , and the process thereof is such , viz. when any man is grieved , and that he be disseized of his free-hold within the said city , or the suburbs of the same ; he shall come to any hust . holden at the guild-hall , or for default of hust . in the chamber of the guild-hall , in the assembly of the mayor and aldermen any munday , and shall make there a bill , and the bill shall be such , viz. a de b. queritur versus ss . c. de d. de libero tenemento suo in parochia de e. in suburb . london . and the same bill shall be inrolled , and upon that shall be made another bill , containing all the matter of the first bill , by the common clark of the city , making mention of the title of hust . or of the day of the assembly of the mayor and aldermen , and then the bill shall be sent to the sheriffs , or to either of them to do process and right unto the parties , and then although the bill be served the wednesday then next following , that is to say , the minister of the sheriffs to whom the bill is delivered , shall summon the tenant or tenants named in the said bill of assize , by the view of two freemen of the city , and that of the tenants from whom the rent is supposed to be issuing , and then it shall be said to the tenants , that they keep their day at the guild-hall the saturday then following at their peril , and the names of those which are summoned , shall be endorsed upon the backside of the bill , and then may the plaintiff sue to have the assize gathered , and the jury summoned against such saturday , or against other saturday after at his pleasure , and so may the tenants sue for their deliverance , if they will , and such summons shall be made the friday before the said saturday , and the array of the pannels of the juries shall be made by the sheriffs or their ministers , or by the mayor and aldermen , if any of the parties upon reasonable cause shall require it . also the same assizes shall be pleaded and recorded for the greater party , also as elsewhere at the common law ; and if release bearing date in forreign county , bastardy , or other forreign matters which cannot be tryed within the said city , be alledged in such assizes , then the plaintiff may sue , and cause to come the record in the kings court , that the matter may be tryed , as the cause requireth ; and when the matter is there determined , the process shall be sent back to the said sheriffs and coroners , or to their successors to proceed forward before them , according to the custome , &c. and you must note , that there is no discontinuance in such assizes , neither is any mention made in the record of the dayes betwen the assizes taken , and the day that the assize shall be taken , or judgement given , if it be not by necessary cause , or that such assizes be adjourned for special causes : and when the assizes are taken before the sheriffs , and coroners , as before is said and judgement be given , then shall such assizes determined be entred of record ; and afterwards shall be carried into the chamber of the guild-hall , to remain there in the treasury upon record . and note , that no man may enter into any tenements within the said city by force , nor any tenants hold by sorce and armes in disturbance of the peace . de curia majoris london & custumis civitatis ejusdem & diversis casibus terminalibus in eadem curia . curia majoris of the said city of london , is holden by the custome of the same city before the mayor and aldermen for the time being in the chamber of the guild-hall or in hust . and that from day to day , and there are treated , determined and discussed the pleas , and matters touching orphans , apprentices , and other businesses of the same city . and there are redressed and corrected the faults and contempts of those which do against the custome and ordinance of the city , as well at the suit of the parties , as by enquest of office , and in other sort by suggestion according as the causes require ; and there they use to justifie bakers , victuallers , and , trades-men , and and to treat and ordain for the government of the city , and for keeping the kings peace and other necessary points of the city , and according as the time requireth . item the officers and ministers of the said city being found faulty , are to be cleared before the mayor and aldermen , as well at the suit of the parties by process made , as otherwise , according to the discretion of the said mayor and aldermen . item , the said mayor and aldermen use there to hold , and determine pleas of debt and other actions personal whatsoever , by bill as well among merchants , and merchants for merchandize , as also between others that will plead by process made against the parties item . the mayor and aldermen , or the mayor and chamberlain of the said city take before them in the said chamber recognizances of debt of those that will , of what summes soever . and if the day of payment be missed , then he to whom the recognizance is made out of this record , shall have execution of all the debtors goods , and of the moyety of his lands within the said city , and it is taken as at the common lawes . item , pleas of debt according to the ordinance called the suit of smithfield , are determinable only before the mayor and aldermen according as is more plainly set down in the ordinance thereupon made . item , the assizes of nusance are determinable by plaint before the mayor and aldermen , and that plaint shall be served by the sheriff the wednesday against the friday ; and then the mayor and aldermen ought to proceed in plea according to that which is set down in the act of assize and nusance in the said city . item , the mayor and aldermen have alwayes used to set down penal acts upon victuals , and for other governance of the city and of the peace , according to their discretion and advice , and proclaim the same ordinance within the said city open●y to be kept in the kings name , and of the city upon that penalty set down , and shall levie all those penalties of those which do contrary to the ordinance aforesaid . item , the mayor and aldermen have alwayes used , and may by custome of the same city cause to come before them the offenders which are taken within the said city for lies and false nuses noised abroad in disturbance of the peace makers , and counterfeiters of false seales , and false evidences , and for other notorious deceits known to them , which they shall find faulty of such malefactours by confession of the parties or by enquest , and then take them and punish them by the pillory or other chastisement by imprisonment , according to their discretion . item , the mayor and aldermen have alwayes accustomed , and may by custome of the said city , change process , abbridge delayes in actions personal as well before themselves , as in the sheriffs courts , and to make new ordinances touching personal pleas which ordinances they understand to be reasonable and profitable for the people . item , you must note that all the city of london is held of our soveraign lord the king in free burgage , & without the same city , and of all the lands and tenements , rents , and services within the same city , and the suburbs of the same , are well in reversion , as in demesne , are devisable by usage of the said city , so that men and women by usage of the same city , may devise their tenements , rents , and reversions within the said city and suburbs of the same , to those whom they will , and of what estate they will ; and they may also devise new rent to be taken of the same their tenants , in such sort as best shall seem unto them by their testament , and by their last will ; and those which are freemen of the same city , may devise their tenements to mortmain , as appeareth by the kings charter to that effect made . item , he which holdeth tenements joyntly with others , may devise that which belongeth to him , without any other separation ; but infants within age can make no devise , nor woman under covert barn , cannnot devise their tenements by leave of their husbands , nor in any other sort during the coverture , . . . per. cur. also the husband cannot devise tenements to his wife for any higher estate , then for term of life of his wife , neither can the wife claim any further estate , upon pain of losing the whole , neither can the husband devise the tenements in the right of his wife nor the tenements which the wife and the husband have joyntly purchased ; but if the husband and wife have tenements joyntly to them and the heirs of the husband , the same husband may devise the reversion , and all the testaments by which any tenements are divised , may be inrolled in the hust . of record , at the suit of any , which may take advantage by the same testaments , and the testaments which are so to be inrolled , shall be brought , or caused to be shewn before the mayor and aldermen in full hust . and there the said will shall be proclaimed by the serjeant , and then proved by two honest men well known , which shall be sworn and examined severally of all the circumstances of the said will , and of the estate of the testator , and of his seal ; and if the proofs be found good and true , and agreeing , then shall the same will be inrolled upon record in the same hust . and the fee shall be paid for the inrolment , and no testament nuncupative , nor other testament may be inrolled of recod , unless the seal of the party be at the same will ; but wills that may be found good and true are effectual , albeit they are not inrolled of record . item , testaments within the said city ought by custome of the same city to be adjudged effectual ; and executors have respect to the wills of the testators ; albeit the words of such wills be defective , or not accordidg to the common law. item , where reversions or rents be devised by will inrolled in the hust . of record , the same reversions and rents after the death of the testator , are so executed that those to whom such rents are devised , may distrain for the rent , and make avowry , and those in reversion may sue a writ of waste at their will , without any attornment of the tenants , and may plead by the same inrolment , if need be , although they have not the same testament , and the same custome taketh place for deeds of land inrolled in the hust . of record and such inrolments have been alwayes used so , that the wills are proclaimed and proved in full hust . as is aforesaid ; and deeds indented , and other writings sealed may be accepted , and the knowledging and confession of women may be received before the mayor and one alderman , or before the recorder and one alderman , or before two aldermen for need , as well out of the court as in , so that the same charters , indentures , and other writings so acknowledged , be afterwards entred and inrolled in any hust . and the fees paid as the order is . item , where a man hath devised by his will enrolled certain rent to be taken of his tenants within the said city without a cause of distress , yet by custome of the said city he to whom the devise is made , may distrein and avow the taking for the rent behind , and in the same sort it shall be done for amerciaments , rents called quit-rents within the said city . item , the mayor and aldermen which are for the time being , by custome of the same city shall have the wards and marrying of all the orphans of the said city after the death of their ancestours ; although the same ancestors held elsewhere out of the city , of any other lordship by what service soever ; and the same mayor and aldermen ought to enquire of all the lands , tenements , goods and chattels within the same city pertaining to such orphans , and the lands , tenements , goods and chartells within the same city , pertaining to such orphans , to seize , and safely keep to the use and profit of such orphans , or otherwise to commit the same orphans , together with their lands , tenements , goods and chatels , to other their friends , upon sufficient surety of record in the chamber of the guild-hall , in convenient sort to maintain the same orphans , during their minority , and to repair their lands and tenements , and safely to keep their goods and chattels , and to give good and true accompt before the said mayor and aldermen of all the profits of the same infants wen they come to age , or be put to a trade , or married at the advice of the said mayor and aldermen ; and that in all cases , if it be not otherwise ordained and disposed for the same orphans , and their lands , tenements , goods and chattels , by express words contained in the same wills of their ancestors ; and no such orphans may be married , without consent of the said mayor and aldermen : and in like sort , where lands , tenements , goods or chattles within the same city , are devised to a child within age , of a citizen of the same city , his father living , and the same child be no orphan , yet by custome of the same city , the said lands , tenements , goods and chattels shall be in the custody of the mayor and aldermen , as well as of an orphan , to maintain and keep the said lands , tenements , &c. to the use and profit of the said infant , and shall give good and true accompt for the same , as is aforesaid . and note , that where a citizen of the same city hath a wife and children , and dieth ( all debts paid ) this goods shall be divided into three parts , whereof the one part shall come to the dead , to be distributed for his almes , the other part shall come to his wife and the third part to his children , to be equally parted amongst them , notwithstanding any device made to the contrary ; and for the same , the wife or children , or any of them , may have their recovery and suit , to demand such goods and chartels against the executors or occupiers of the same goods and chattels , before the same mayor and aldermen by plaint . item , by ancient custome of the said city it was not lawful to any stranger or forreigner to sell victuals or other merchandizes to any other stranger , or forreigner within the same city to self again , nor to any such forreigner or stranger to sell victuals or any other merchandize within the said city by retail . item , by ancient custome of the said city of london the citizens and ministers of the same city are not to obey any commandment or seals except the commandment and seal of our sovereign lord the king immediate , neither can any of the kings officers make any seisure or execution within the said city , nor within the franchises of the same by land nor by water ( except only the officers of the city aforesaid . ) item , touching the judgements given in the sheriffs court in actions personal , or in assizes taken before the sheriffs and coroners by custome of the said city the parties against whom such judgements are given , may sue a writ of errour directed to the may or , aldermen and sheriffs to reverse the said judgements in the hust . and if the judgements be found good , yea , though the same judgements be affirmed in the hust . yet the same party may sue another writ of error directed to the mayor and sheriffs to cause the record to come before the justices assigned at saint martins le grand as hath been heretofore done . but if any party by such judgemenn given before the said sheriffs , be convict in debt or damages ; and is therefore committed to prison until he hath made agreement with the party , and afterwards pursueth a writ of error to reverse the judgement in the hust . where although the judgement be affirmed , and the same party will sue a-another writ of error to reverse the same judgement before the justices assigned at saint martins as is aforesaid , yet nevertheless the same which is so in person must not be delivered out of prison , by ancient custom of the same city by means of any such writ of error , , until he have found sufficient sureties within the said city , or laid in the money into the court to pay him that recovered the same , if in case that the judgement be afterwards affirmed . and in case that such writ of errour be sued to reverse any judgement given in the hust . before the justices assigned at saint martins le grand , and it be commanded by writ to safe keep the parties , and to cause the record , and process to come before the same justices , then shall the parties be kept as the law requireth . but no record may be sent before the same justices , but that the mayor and aldermen shall have fourty dayes , respite by appointment of the same justices after first sessions then to advise them of the said record , and of the process of the same , and at the first sessions of the justices after fourty dayes , shall the said process and record be recorded before the same justices by mouth of the recorder of the said city . and of judgements given before the mayor and aldermen in the chamber of the guild-hall , according to the law merchant no writ of error is wont to be sued . item , by ancient custome of the said city all the liberties and priviledges , and other customes belonging to the said city , are usually recorded by mouth , and not to be sent or put elsewhere in writing . item , the citizens of london by custome of the city ought not by any writ to go out of the city in any sort to pass upon an enquest . item , the wife after the death of her husband by custome of the city shall have her frank bank ; viz. a woman after the death of her husband shall have of the rents within the same city , whereof her husband died seized in fee. and in that tenement wherein the husband and she did dwell together at the time of the death of the husband , the woman shall have to her self wholly the hall , the principal chamber , and the cellar wholly ; and shall have the use of the oven , the stable , privy and yard in common , with other necessaries thereunto belonging for her life ; and at that hour that she is married , she loseth her frank bank , and her dower of the same , saving her dower of other tenements as the law requireth . item , every freeman of the said city using trade , may by custome of the same city take an apprentice to serve him , and learn him his art , and mystery , and that by indenture to be made between him and his said apprentice , which indenture shall be examined and enrolled of record before the chamberlain of the guild-hall , and such apprentice may bind himself , or his friends may put him to a trade by their indenture , if he be of convenient age , at the discretion of the chamberlain , or mayor and aldermen , if need be . and no apprentice by custome of the said city may be bound for less term then seven years , and the indenture must be enrolled within a year after the making thereof upon a certain penalty set down . and after that such apprentice hath well and sufficiently served his term , he shall be made a freeman of the said city without other redemption , whereas no other may come by the freedome without redemption , except those which are born within the said city of what country soever they be under the obeysance of out sovereign lord the king , by custome of the said city are also free by their birth , having respect to the priviledges of the freedome ; as those which have been apprentices or otherwise been made free by redemption ; and women under covert bath using certain crafts within the city by themselves , without their husbands may take maides to be their apprentices to serve them , and teach them their trade , which apprentices shall be bound by their indenture of apprentiship to the husband and the wife , to learn the wives trade as is aforesaid . and such indenture shall be enrolled as well as the other . and note , that any one having such apprentice , may sell and devise his said apprentice to whom he will being of the same trade , as well as his chattel . item , the thames-water so far as the bounds of the freedom of the city doth stretch , is parcel of the city . and the same water and every appurtenances within the said franchize , hath alwayes been governed by the same city as parcel of the same city , as well the one part of the water as the other . and the sheriffs of london for the time being , have alwayes used to do arrests and executions at the suit of the parties in the said water of thames , viz. from the east-side of the bridge of london to recolv . and from the west part of london . bridge to stanes bridge . item , the sheriffs of london ought by custome of the city to have the forseiture of all fugitives and felons goods whatsoever , as well within the said city , as the water of thames , in and of their farm which they pay yearly to the king. item , by custome of the city no attaint is maintainable nor lieth within the city . item , by ancient custome of the same city , no man dwelling within the same city , can be taken nor led out of the city by colour or claim of villenage , before the matter be discussed by order of law. item , if a freeman of the said city coming or going with merchandize elsewhere , out of the same city , be constrained to pay toll or other custome , or that his goods be arrested or carried away wrongfully without reasonable cause and not delivered again by the governour of the town when complaint in made , and it be sufficiently testified by credible men , then if afterwards the goods or merchandizes of him that did the wrong , or the goods or merchandizes of any other of the same town where the wrong was done , be found within the city of london , it is the custome at the suggestion of the property to arrest such goods and merchandizes by the officers of the city , and to detain them in the name of a withermam until agreement be made with the said freeman for his damages sustained in that behalf , except always reasonable answer be alledged by one other party . item , the citizens of london in ancient time ordained a house called the tonne in corn-hill , whereunto the constables , beadles , and other officers , and men of the city did accustome to bring trespassours of the peace , married men and women found in adultery , and chaplains , and other religious men found openly , with common women , or married women in suspicious places , and after to bring them before their ordinaries . item , the city of london hath co●usance of pleas by the kings chartes , and the use is , that no freeman of the said city shall implead another freeman of the same city , elsewhere then in the same city , where he may recover within the said city , upon pain of losing his freedome . inem , he which is mayor of london for the time shall have an hanap , o' or a golden tanker at the coronation of every king , with other priviledges belonging to the said mayor and city , at such coronation of the king by ancient custome of the same city . item , the customes is that the kings chief butler shall be chief coroner of the city of london , which coroner useth by writ to substitute another in his place , who is called coroner before whom the indictments , and appeales within the said city are taken , and in whose name the records are made ; and all the indictments , and appeals within the said city are taken before the two sheriffs and coroners joyntly ; and the juries taken for the death of any man upon view of the corps , are gathered out of the four wards neerest , and summoned by the beadles of the same wards ; and all other juries to be taken , before the sheriffs and coroners in common , ought to be taken and summoned by the sheriffs and their officers . item , heretofore where any thief in new-gate did appeal another thief being in another goale , that thief in the other goal is to be sent by writ unto new-gate to answer to the same appeal , and to be at his delivery there . and in the same sort if a thief being in another goal do appeal another being in new-gate , or any other within the said city , the same apeallated must be brought by writ to the same goale of new-gate , to maintain his said appeal . and no thief being in new-gate taken with the manner , ought to be sent elsewhere with the manner for his deliverance but only to have his deliverance , before the mayor of london , and other justices assigned for the said goal of new-gate . item , because the burrough of southwork , and place of common stewes on the other side of the water of thames , are so hurtful to the city of london , and theeves , and other malefactours are often coming thither , and many times after their thefts , and fellonies done within the said city , they fly and retire out of the same city unto the stewes , and into southwark , out of the liberties and power of the city , and remain there doing mischief , watching their time to come back and do mischief , there the officers of the said city have used always to pursue , and search such theeves and ill doers in the same stewes and town of south-wark , as well within the liberty as without , and bring them to new gate , to stay there for their deliverances , before the justices as well for open suspition , as at the suit of the party . item , the prisoners which are condemned or arrested within the said city , and are committed to prison at the suit or the party ; and afterwards are sent by writ to the exchequer or any other the kings places with their causes , the same prisoners after they are delivered in the kings court , ought to be sent to the said city to answer to the parties , and stay there for their deliverance . item , those which have tenements within the said city , shall not be sufferd to strip or waste their tenements demeasne , nor to pull them down in deforming or defacing of the city , unless it be to amend them , or build them up again , and any that doth it , or beginneth to do it , shall be punished by the mayor and aldermen for the offence , according to the custome of the city . item , if walls , penthouses , or other houses whatsoever within the said city stretching to the high street , be so weak or feeble , that the people passing by mistrust the peril of some suddaih ruine , then after it is certified to the mayor and alderman by mason , and carpenter of the city sworn , or that it be found in the wardmore that the danger is such , then the same mayor and aldermen shall cause the parties to be warned to whom the same tenements belong , to amend them , and repair them so soon as conveniently he may ; and if after such warning they be not amended , nor begun to be amended within fourty dayes then next following , then shall the said tenements be repaired and amended at the cost and charges of the said city , untill the costs be fully levied of his goods and chattels or other his tenements if ●eed be . item , if any house be found within the said city , or the suburbs of the same , covered with straw , reed , or thatch , he to whom the house belongeth , shall pay to the sheriffs for the time being fourty shillings , and shall be compelled to take away the same covering . item , if any house within the said city be burning , so that the flame of the fire be seen out of the house , he which dwelleth in the said house shall pay to the sheriffs forty shillings in a red purse . item , the mayor , aldermen and sheriffs , and all other officers and ministers of the said city are to be chosen by the same city ; viz. at the time , when the mayor should be chosen the commons of the same city shall by custome be assembled in the guild hall , and the same commons shall make election of two honest men of the said city , of whom the one shall be mayor , and the names of the said two honest men shall be carried before the mayor and aldermen which are for the time within the chamber of the guild-hall ; and then the one of them shall be chosen to be mayor by the said mayor and aldermen by way of screame , and the said mayor so newly chosen the morrow after the feast of simon and iude , shall be presented before the bacons of the exchequer at westminster , or in their absence to the constable of the tower , and afterwards shall be presented to our sovereign lord the king himself , according to the content of the charter of the said city , and the said mayor shall have the government of the said city under the king for the year following , and the said mayor shall take fifty marks a year for the of co●n and fifty marks in time of peace of the merthants of anzens , corby , and neele , according to the ancient orders thereupon made ; and every mayor shall hold his general court at the guild hall the munday after the feast of the epiphany , and then shall be assembled , all the aldermen of the same city , and all the constables , scavengers , and beadles shall be sworn anew , well and faithfully to do their office , during the time they shall be officers , and the wardmotes held by the aldermen , and the default found , shall be then delivered up by the said aldermen in writing , and the default found in the wards shall be enquired and examined , and the mayor for the time being , by custome of the same city , for maintainance of the peace , and for the quiet of the city , hath authority to arrest and imprison the disturbers of the peace , and other malefactors , for rebellions , or lewd expences , and other defaults , according to their discretion , without being appeached , or afterwards impleaded for the same . item , no mayor shall be chosen within the said city , before that he hath been sheriff of the same city a year before , item , the mayors of london which have been for the time , are accustomed to have their sword born upright before them within the said city , and without the putting the same down in the presence of any , except the king , and that sword is called the kings sword. also the sheriffs of london are chosen by custome of the said city , on st. matthews day in the guild-hall , viz , the one shall be chosen by the mayor , and the other by the commons , and the said sheriffs shall afterwards be sworn within the said guild-hall , and the morrow after st. michal , presented into the exchequer by the constable of the tower , according to the form of the charter of the city , as is aforesaid ; and the same sheriffs shall have free election of all their officers , and of their farmours and bayliffs , as well within the city as the county of middlesex , and of the goalers of the prisons within the said city at their will , and the same sheriffs pay , and are accomptants yearly to the kings exchequer , for the farm of the said city and county of middlesex , according to the form of the said city and charter ; and by reason of that farm , the said sheriffs ought to have the ancient tolls and customes of merchandizes coming into the city , and going out of the same ; and forfeitures , fines , and amerciaments , and all other commodities of ancient time belonging to their office : and no merchandizes shall pass out of the city by land nor by water , by cart , horse , nor portage by men , without a warrant sealed by the said sheriffs ; and forreigners must pay for their issue , according to the ancient custome . item , the aldermen every year are elected at the feast of st. gregory , and sworn , and presented to the mayor , and the said aldermen are chosen by men of the same ward , which aldermen ought to keep their wardmotes . item , upon the death of the alderman of any ward , the inhabitants in the ward are to chuse a new alderman for their ward , whom they think good , and are to certifie the lord mayor of their choice , who is to declare the same to the court of aldermen at their next meeting , and then to give the ward notice of their liking of the choice ; but if it be an easie and quiet ward , then by order , either the lord mayor , or eldest knight on the bench , is to have the same ward , as alderman thereof ; yet the election is in the ward absolute of themselves , whom they will chuse . the commission and articles of the ward-mote inquest , by the mayor . to the alderman of the ward . . vve charge and command you , that upon st. thomas the apostle next coming , you do hold your ward-mote , and that you have afore us at our general court of aldermen to be holden in the guild-hall , the monday next after the feast or the epiphany next coming , all the defaults that shall be presented afore you by inquest in the said ward-more , and the said inquest shall have full power and authority by one whole year to inquire and present all such defaults as shall be sound within your said ward , as oftentimes as shall be thought to you expedient and needful , which we will shall be once every moneth at the least . . and if it happen any of your said inquest to die , or depart out of your said ward within the said year , that then in place of him or them so dying or departing out of your said ward , you cause to be chosen one able person to inquire and present with the other in man and form aforesaid . . and that at the said general court , you give afore us the names and surnames of all them of your said ward , that come not to your said ward-more , if they be duely warned , so that due redress and punishment of them may be had , as the case shall require according to the law. . and that yea do provide , that at all times convenient , covenable watch be kept : and that the lanthornes with light by nightertaile in old manner accustomed , be hanged forth , and that no man go by nightertaile without light , nor with visard , on the peril that belongeth thereto . . and also that you do cause to be chosen , men of the most sufficient , honest , and discreet men of your said ward , to be for your said ward of the common councel of this city for the year ensuing , according to the custome in that behalf yearly used . and also that you do cause the said men so to be chosen to be of the common councel , to be sworn before you and in your presence , according to the oath for them used , and of old time accustomed , the tenor of which oath hereafter ensueth . the oath . ye shall swear , that you shall be true to our soveraign lord the king that now is , and to his heirs and successours kings of england , and readily ye shall come when ye be summmed to the common councel of this city , but if ye be reasonably excused , and good and true councel , ye shall give in all things touching the commonwealth of this city , after your wit and cunning : and that for favour of any person ye shall maintain no singular profit against the common profit of this city , and after that you be come to the common councel , you shall not from thence depart until the common councel be ended without reasonable cause , or else by the lord mayors license . and also , any secret things that be spoken or said in the common councel which ought to be kept secret , in no wise you shall disclose as god you help . and that together with the said oath of their office , you administer to the said persons that shall be chosen of the common councel , the oaths of supremacy and allegiance , and the other oath hereafter following . i a b do utterly testifie and declare in my conscience that the kings highness is the onely supream governour of this realm ; and of all other his highnesses dominions and countries , as well in all spiritual or ecclesiastical things or causes as temporal ; and that no forreign prince , person , prelate , state or potentate , hath or ought to have any iurisdiction , power , superiority , preheminence , or authority , ecclesiastical or spiritual within this realm : and therefore i do utterly renounce and forsake all forreign iurisdictions , powers , superiorities and authorities , and do promise that from henceforth , i shall bear faith and true allegiance to the kings highness , his heirs and lawful successours , and to my power shall assist and defend all iurisdictions , priviledges , preheminences and authorities , granted or belonging to the kings highness , his heirs and successours , or united and annexed to the imperial crown of this realm . so help me god , and the contents of this book . i ab do truely and sincerely acknowledge , profess , testifie and declare in my conscience before god and the world , that our soveraign lord king charles is lawful and rightful king in this realm , and of all other his majesties dominions and countries : and that the pope , neither of himself , nor by any authority of the church or see of rome , or by any other means with any other , hath any power , or authority to depose the king , or to dispose any of his majesties kingdomes , or dominions , or to authorizo any forreign prince to invade or annoy him or his countries , or to discharge any of his subjects of their allegiance and obedience to his majesty , or to give license or leave to any of them to bear arms , raise tumults , or to offer any violence or hurt to his majesties royal person , state or government , or to any of his majesties subjects within his majesties dominions . also i do swear from my heart , that notwithstanding any declaration or sentence of excommunication or deprivation made or granted , or to be made or granted by the pope , or his successours ; or by any authority derived , or pretended to be derived from him or his see , against the said king , his heirs or successours , or any absolution of the said subjects from their obedience ; i will bear faith and true allegiance to his majesty his heirs and successours , and him and them will defend to the uttermost of my power , against all conspiracies and attemps whatsoever , which shall be made against his and their persons , their crown and dignity , by reason or colour of any such sentence or declaration , or otherwise ; and will do my best endeavour to disclose , and make known unto his majesty , his heirs and successours , all treasons and traiterous conspiracies , which i shall know , or hear of to be against him or any of them . and i do further swear , that i do from my heart abhor , detest and abjure , as impious , and heretical , this damnable doctrine and position , that princes which be excommunicated or deprived by the pope , may be deposed or murthered by their subjects or any other whatsoever , and i do beleive , and in conscience am resolved , that neither the pope , nor any person whatsoever hath power to absolve me of this oath , or any part thereof , which i acknowledge by good and full authority to be lawfully administred unto me , and do renounce all pardons and dispensations to the contrary . and all these things i do plainly and sincerely acknowledge and swear , according to these express words , by me spoken , and according to the plain and common sense and understanding of the same words without any equivocation or mental evasion , or secret reservation whatsoever ; and i do make this recognition , and acknowledgement heartily , willingly and truely , upon the true faith of a christian . so help me god , &c. i. a. b. do declare and believe that it is not lawful , upon any pretense whatsoever to take arms against the king ; and that i do abhor that traiterous position , of taking arms by his authority against his person , or against those that are commissioned by him . so help me god. and farther , that you likewise administer to the same persons that shall be so elected of the common council , to be by them subscribed , the ensuing declaration . i. a. b. do declare , that i hold there is no obligation upon me or any other person from the oath commonly called the solemn league and covenant . and that the same was in it self an unlawful oath , and imposed upon the subjects of this realm against the known laws and liberties of the kingdome . for that otherwise , if the said persons , or any of them , that shall be elected as aforesaid of the common council shall not take the said oaths , and subscribe the said declaration , their election and choice is by the late act of parliament , for the governing and regulating of corporations , enacted and declared to be void . . and that also in the said wardmote , you cause to be chosen certain other honest persons to be constables , and scavengers , and a common beadle , and a raker to make clean the streets and lanes of all your said ward , according to the custome yearly used in that behalf , which constables have , and shall have ful power and authority to distrein for the sallery and quarterage of the said beadle and raker , as oftentimes as it shall be behind unpaid . . also , that you keep a roll of the names , sur-names , dweling-places , professions and trades of all persons dwelling within your ward , and within what constables precinct they dwell , wherein the place is to be specially noted by the street , lane , alley , or sign . . also that you cause every constable from time to time to certifie unto you , the name , sur-name , dwelling-place , profession , and trade of every person who shall newly come to dwell within his precinct , whereby you may make and keep your roll perfect : and that you cause every constable for his precinct to that purpose to make and keep a perfect roll in like manner . . also , that you give special charge , that every inholder , and other person within your ward , who shall receive any person to lodge or sojourn in his house above two dayes , shall before the third day after his coming thither , give knowledge to the constable of the precinct where he shall be so received , of the name , sur-name , dwelling-place , profession , and trade of life , or place of service of such person , and for what cause he shall come to reside there : and that the said constable give present notice thereof to you : and that the said inholder lodge no suspected person , or men or women of evil name . . also that you cause every constable within his precinct , once every month at the farthest , and oftner if need require , to make diligent search and inquiry , what persons be newly come into his precinct to dwell , sojourn , or lodge : and that you give special charge that no inholder or other person , shall resist or deny any constable , in making such search or inquiry , but shall do his best endeavour to aid and assist him therein . . and for that of late there is more resort to the city , of persons evil affected in religion , and otherwise than in former times have been : you shall diligently inquire if any man be received to dwell or abide within your ward by the space of one year , being above the age of twelve years , and not sworn to be faithfull and loyal to the kings majesty , in such sort as by the law and custom of the city he ought to be . . to all these purposes the beadle of every ward shall imploy his diligence , and give his best furtherance . . also that you have special regard that from time to time , there be convenient provision for hooks , ladders , and buckets , in meet places within the several parishes of your ward , for avoiding the peril of fire . . also that the streets and lanes of this city be from time to time kept clean before every church , house , shop , ware-house , door , dead wall , and in all other common passages and streets of the said ward . . and where by divers acts of common-councel , aforetime made and established for the common-weal of this city , amongst other things it is ordained and enacted , as hereafter ensueth . also it is ordained and enacted , that from henceforth no huckster of ale or beer , be within any ward of the city of london , but honest persons , and of good name and fame , and so taken and admitted by the alderman of the ward for the time being , & that the same hucksters do find sufficient surety afore the maior and alderm . for the time being , to be of good guiding and rule : and that the same hucksters shall keep no bawdry , nor suffer no lechery , dice-playing , carding , or any other unlawfull games , to be done , exercised , or used within their houses : and to shut in their doors at nine of the clock in the night from michaelmass to easter , and from easter to michaelmass at ten of the clock in the night , and after that hour sell none ale or beer . and if any huckster of beer or ale after this act published and proclaimed , sell any ale or beer within any ward of the city of london , and be not admitted by the alderman of the same vvard so to do , or find not sufficient surety as it is above rehearsed , the same huckster to have imprisonment , and make fine and ransome for his contempt , after the discretion of the mayor and aldermen : and also that the said hucksters suffer no manner of common eating and drinking within their cellers or vaults contrary to the ordinance thereof ordained and provided , as in the said act more plainly appeareth at large : we charge you that you do put the same in due execution accordingly . . and also that ye see all tiplers and other cellars of ale or beer , as well of privy osteries , as brewers and inholders within your ward , not selling by lawful measures sealed and marked with the city arms or dagger be presented , and their names in your said indentures be expressed , with defaults , so that the chamberlain may be lawfully answered of their amerciaments . . and also that you suffer no alien or son of any born an alien to be of the common councel , nor to exercise or use any other office within this city , nor receive or accept any person into your watch , privy or open , but englishmen born : and if any stranger born out of this realm , made denizen by the kings letters patents , or any other after his course and lot be appointed to any watch , that then ye command and compel him or them to find in his stead and place one englishman to supply the same . . and also , that you cause an abstract of the assize appointed by act of parliament , for billets and other fire-wood to be fair written in parchment , and to be fixed or hanged up in a table in some fit and convenient place in every parish within your ward , where the common people may best see the same . . and furthermore we charge & command you , that you cause such provision to be had in your said ward , that all the streets and lanes without the same ward , be from time to time cleansed and cleerly voided of ordure , dung , mire , rubbish and other filthy things whatsoever they be , to the annoyance of the kings majesties subjects . . and also that at all times as you shall think necessary , you do cause search to be made within your said ward , for all vagarant beggars , suspitious and idle people , and such as cannot shew how to live , and such as shall be sound within your said ward , that you cause to be punished and dealt with according to the laws and the statute in such case ordained and provided . . and also we will and charge you the said alderman , that your self certifie and present before us , at the same general court to be holden the aforesaid monday next after the feast of epiphany , all the names and surnames truely written of such persons within your said ward , as be able to pass in a grand jury by themselves : and also all the names and sur-names truly writen of such persons , being and dwelling within your said ward , as be able to pass in a petty jury , and not able to pass in a grand jury by themselves , that is to say every grand jury man to be worth in goods an hundred marks , and every petty jury man forty marks , according to an act in that case made and provided : and the same you shall indorce on the backside of your indenture . . item , for divers reasonable and urgent considerations , us especially moving , we straightly charge and command you on the king our soveraign lords behalf , that you diligently provide and foresee , that no manner of person or persons within your said ward , of what condition or degree soever he or they be of , keeping any tave●n or alehouse , ale cellat , or any other victualing house or place of common resort to eat and drink in , within the same ward permit , or suffer at any time hereafter any common women of their bodies , or harlots to resort and come into their said house , or other the places aforesaid , to eat or drink , or otherwise to be conversant or abide , or thither to haunt or frequent , upon pain of imprisonment , as well of the occupier and keeper of every such house or houses , and all other the places afore remembred , as of the said common women , or harlots . . also , that you do give in charge to the ward-more inquest of your ward , all the articles delivered to you herewith . and that you have a special care of keeping the peace and good order during your ward-mote , and if any offend herein , you fine or punish him and them according to law. not failing hereof , as you tender the common weal of this city , and advancement of good justice , and as you will answer for the contrary at your uttermost peril . an act for the reformation of divers abuses , used in the ward-mote inquests . vvhereas the ward-more inquests , within the several wards of this city , for the maintenance of honesty , vertue , and good living and for the abolishment , exciling , and suppressing of all kind of vice , evil rule and iniquity , according to the ancient , lawdable lawes and customes of the said city , are yearly severaly charged and sworn , upon the day of st. thomas the apostle , before the aldermen of the said wards chiefly and principally to the end and incent , that they with all diligence should truly and duely inquire and present all such enormities , nusances , misorder and offences , as are , or at any time within the space of one whole year , then next ensuing , shall be severally used , committed , or done within the said wards , and have day yearly to make their said presentments , until the monday next after the feast of the epiphany . the said inquests heretofore , little or nothing at all regarding ( as it is very manifest & not unknown , the more is the pitty ) their said oaths , or yet the great commodities , utility , quietness , honour , and worship , that might or should grow and insue to the said city and inhabitants of the same , through their good , industrious , and indifferent proceedings , for the advancement of vertue , and repressing of vices , have drawn it in a manner into a very ordinary course and common custome , to consume and spend a great part of their said time , that they have yearly given unto them , when they receive their said charge partly in setting up among themselves , a certain commons ; and making and keeping many costly and sumptuous dinners suppers , and banquets , inviting and calling to the same at sundry times , in a manner all the inhabitants of the said several wards , to the no little charges of the same inhabitants , and partly in passing and occupying much part of the same time in playing at dice , tables , cards , and such other unlawful games both to the great costs , charges , and expences , of the said inquests ( whereof the greater part most commonly are but poor men ) and also to the very lewd , pernitious , and evil example of all such as have any access or recourse unto the same inquests . and where also the said inquests have of late usurped to dispense with such persons as they by their search , and otherwise , have founden to offend and transgress the laws , in using and occupying of unlawful weights and measures taking of the said offendors certain fines ( as it is said ) the said inquests have commonly used to imploy toward the maintenance of their said feasting and banqueting , directly against the due order of our soveraign lord the kings laws , and the publick wealth of all his highness subjects within the said city and much to the reproach and dishonour of the same city . for remedy and reformation thereof , be inordained , enacted , and established by the lord mayor , aldermen , and commons , in this present common councel assembled , and by authority of the same , that all and every the wardmore inquests of the said city , from henceforth to be yearly charged and sworn within the several wards at the time afore rehearsed , shall at all times and places meet and convenient for the due execution of their said charge , meet and assemble themselves together , and that they and every of them after their said meetings , inquisition , and treating of their said necessary matters , shall go home to their own several houses to breakfast , dinner , and supper , duting all the said accustomed time of their charge and session abovesaid . and that none of the said inquests shall from henceforward set up any manner of commons , or keep or maintain any manner of dinners , suppers , or banquets among themselves , or use at their said assemblies and sessions , any of the games above mentioned , or any other whatsoever unlawful games or playes at any time , before the giving up of the said presentments , at the time above remembred . or shall take or receive any manner of fine or fines , for the concealment and discharging of any of the offences afore recited : but truly present the same offences , and every of them , according to their oaths , upon pain of imprisonment by the discretion of the lord mayor and aldermen of the said city for the time being . provided always and be it enacted by the authority aforesaid , that it shall be lawful for all and every of the said inquests , to take and receive towards the charges of their fire and candles , and other necessaries during the time of their said session , all and every such sums of money , as any honest person or persons of their free will and benevolent mind , will give and offer unto them : and when they have made their said presentments , to go and assemble themselves together , for their recreation and solace , where they shall think it good : and there not only to bestow and spend the twenty shillings , which every alderman within his ward according to a certain order lately taken , shall yearly give unto them at the time of the delivery of their said presentments , towards their said charges in this behalf , but also the residue of the said money received and gathered , as it is aforesaid , of the benevolence of their said loving friends , if any such residue shall fortune to remain . any clause or article in this present act contained to the contrary notwithstanding . not failing hereof , as ye tender the common weal of this city , and advancement of good justice , and as ye will answer for the contrary at your uttermost peril . the articles of the charge of the ward-mote inquest . . ye shall swear , that ye shall truly inquire if the peace of the king our soveraign lord be not kept as it ought to be , and in whose default , and by whom it is broken or disturbed . . also , if there dwell any man within the ward , that is outlawed or indited of treason , or fellony , or be any receiver of traitors or fellons . . also , ye shall inquire and truly present all the offences and defaults done by any person or persons within the river of thames , according to the intent and purport of an act made by our late soveraign lord king edward the sixth , in his high court of parliament , and also of divers other things ordained by act of common councel of this city , for the redress and amendment of the said river which as now is in great decay and ruine , and will be in short time past all remedy if high and substantial provision and great help be not had with all speed and diligence possible : as more plainly appeareth in the said act of parliament , and the said act of common councel of this city . . also , if any manner of person make congregation , or be receiver or garherer of evil companies . . also if any man be a common riotor , or a barrator walking by nightertale without light , against the rule and custome of this city . . also , if there be any man within this ward that will not help , aid , ne succour the constables , beadle , and other ministers of this city in keeping of the peace , and arrest the evil dooers with rearing of hue and cry. . also , if there be any huckster of ale and beer , that commonly useth to receive any apprentices , servants , artificers or labourers , that commonly use to play at the dice , cards , or tables , contrary to the form of the statute in that case ordained and provided . . also , if there be any inholder , taverner , brewer , huckster , or other victualer , that hold open their houses after the hour limited by the mayor . . also , if any parish clark do ring the bell called the curfue bell , after curfue rungen at the churches of bow , barking church , saint brides , and saint gile's without cripplegate . . also , ye shall inquire if any putour , that is to say , man-baud , or woman-baud , common hazerdours , contectour , maintainer of quarrels , champartours , or embracers of inquests , or other common misdoers be dwelling within this ward , and present their names . . also , if any baud , common strumpet common adulterer , witch , or common scold be dwelling within this ward . . also , if there be any house , wherein is kept and holden any hot-house , or sweating-house , for ease and health of men to the which be resorting or conversant any strumpers , or women of evil name , or fame , or if there be any hothouse or sweating ordained for women , to the which is any common recourse of young men , or other persons of evil fame and suspect conditions . . also , if there be any such persons that keep or hold any such hot-houses , either for men or women , and have found no surety to the chamberlain for their good and honest behaviour according to the laws of this city , and lodge any manner of person by night contrary to the ordinance thereof made by the which he or they shall forfeit o● twenty pounds to the chamber if they do the contrary . . also , if any manner of person cast or lay dung , ordure , rubbish , seacole-dust , rushes , or any other thing noiant , in the river of thames , walbrook , flett , or other ditches of this city , or in the open streets , ways or lanes , within this city . . also , if any person in or after a great rain falleth , or at any other time sweep any dung , ordure , rubbish , rushes , seacole-dust , or any other thing noyant , down into the channel of any street or lane , whereby the common course there is let , and the same things noyant driven down into the said water of thames . . also , if any manner of person nourish or keep hogges , oxen , kine , ducks or any beasts within this ward , to the greivance and disease of their neighbours . . also , where afore this time it is ordained and enacted as hereafter followeth . item , for to eschew the evils of misgoverned persons that dayly when they be indebted in one ward , fly into another : it is ordained by the mayor and aldermen that as soon as a man or woman suspect , first do come to dwell within any house , in any ward within the city , the constables , beadles , or oother officers of the same , shall be charged by their oaths , at the general court , to inquire and espie from whence they come . and if they find by their own confession , or by the record of any of the books of any alderman of the city , that they be indited or cast of evil & noyous life , and will not find surely for their good abeating and honest governance to the alderman for the time being , that then they shall not dwell there from thenceforth , but shall be warned to aviod within three or four dayes , or more , or less after , as it shall be seen to the alderman of the wa● for the time being , and that the land lo● that letteth the house or his attorney shall be also warned to make them ●● avoid out of his house aforesaid , with the said time limited by the alderman and if they be sou● there after the tim● that then not only the said dishone●● persons shall have imprisonment of the bodies after the discretion of the mayo● and aldermen , but also the said land lords , letters of the said houses , shal● forfeit to the guild hall , as much as they should have had for letting of the said house , or should be paid by the year , if the said persons or others had dwelled in the said house : you shall duly enquire of offences against this act , and present them . . also , if any freeman against his oath made , conceal , cover , or colour the goods of forraigners , by the which the king may in any wise lose , or the franchises of this city be imblemished . . also , if any forreigner buy and sell with any other forreigner within this city or the subburbs thereof , any goods or merchandizes , be forthwith forfeit , to the use of the commonalty of this city . . also , if every freeman , which receiveth or taketh the benefit , and enjoyeth the franchises of this city , be continually dwelling out of the city , and hath not , ●e will not ( after his oath made ) be at scot and lot , nor partner in the charges of this city , for the worship of the same city , when he is duly required . . also , if any man conceal the goods of orphans of this city , of whom the ward and marriage of right belongeth to the mayor and aldermen of this city . . and if any officer by colour of his office , do extortion unto any man , or be maintainer of quarrels against right , or take carriage , or arrest victual unduly . . also , if any boteman or feriour be dwelling in the ward , that taketh more for botemanage or feriage , then is ordained . . also , if any man make purprest●res , that is to say , incroach , or take of the common ground of this city , by land or by water , as in walls , pales , stoops , grieces or dores of cellars , o● in any other like within the ward , o● if any porch , penthouse or jetty be to● low , in letting of men that ride beside or carts that go thede forth . . also , that penthouses and je●ties be at the least the height of nine foot and that the stalles be not but of two foot and a half in breadth , and to be flexible or moveable , that is to say , to hang by icmewes or garnets , so that they may be taken up and let down . . also , if any common way or common course of water be foreclosed or letted , that it may not have his course as it was wont , to the noyance of the ward , and by whom it is done . . also , if any pavement be defective , or too high in one place , and too low in another , to the disturbance of riders and goers thereby , and carte that go thereupon . . also , if any regrator or forestaller of victual , or of any other merchandizes which should come to this city to be sold , be dwelling in this ward : a regrator is as much to say , as he that buy-up all the victual , or merchandizes , or the most part thereof when it is come to the city or the suburbs of the same at a low price , and then afterwards selleth it at his own pleasure , at a high and excessive price : a forestaller is he that goeth out of the city , and meeteth with the victual and merchandize by the way , coming unto the city to be sold , and there buyeth it , both these be called in the law inimici publici patriae , which is to say , open enemies to a country . . also , if any butcher , fishmonger , poulter , vintner , hostler , cook or sellar of victual , do sell victual at unreasonable prizes . . also , if any hostler sell hay oats or provender at excessive prizes , taking greater gain thereby then is reasonable and lawful . . also , if any victualler sell any victuals not covenable , or unwholesome for mans body , or else dearer then is proclaimed by the mayor , when any such proclamation is or shall be . . ye shall diligently make search and inquity , whether there be any vintner , inholder , alehouse-keeper , or any other person or persons whatsoever within your ward , that do use or keep in his or their house , or houses , any cans , stone pots , or other measures which be unsealed , and by law not allowed to sell beer or ale thereby , and whether they do sell any of their best beer or ale , above a penny the quart , or any small ale or beer above a half-penny the quart , and whether any of them do sell by any measure not sealed . if there be any such you shall seize them , and send them to the guild hall to the chamberlains office , and present their names and faults by indenture , so oft as there shall be any occasion so to do . . ye shall also make search in the shops and houses of all the chandlers , and of all others , which sell by weight or measure , dwelling within your ward , and see that their scales be not one heavier then another , and that their weights and measures aswel bushels as lesser measures , aswel those that they sell sea-coales by , ( which ought to be heaped ) that they be in breadth according to the new standard , sealed as all others , and that all yards and ells that they be their just lengths and sealed that the poor and other his majesties subiects be not deceived , and further , if any do buy by one weight or measure , and sell by others : and if in your search you find any false weights , measures , or scales , ye shall seize them and send them unto the guild-hall to the chamberlain : and you shall also do the like if you shall find any that do sell any thing by venice weights , contrary to the law and his majesties proclamations , present their names and faults . . also , if any inholder bake any bread to sell within his house : and if any baker of sower bread , bake white bread to sell , or mark not his bread , or else take more for the baking then six pence for a bushel . . also ye shall inquire , if any house be covered otherwise then with tile , stone , lead , for peril of fire . . also , if any leaper , faitour , or mighty begger be dwelling with in this ward . . also , if any baker or brewer , bake or brew with straw , or any other thing which is perillous for fire . . also , if any mango with painted visage . . also , if there be any man that hangeth nor out a lantern with a candle therein burning after the usage , according to the commandement thereupon given . . also , if any person bring or cause to be brought to this city or the liberties thereof , to be sold or sell , offer or put to saile any tallwood , billets , faggots , or other firewood , not being of the full assize which the same ought to hold . . also , if any freeman of this city , use to resort into the countries near to this city , and there to ingross and buy up much billet , talwood , faggot , tosard , or other firewood , and convey the same by water unto this city , and there lay it upon their wharfs and other places , and so keep it till they may sell it at high and excessive prizes , at their own wills . . also , if any woodmonger , or any other ; sell any billets or other fire-wood above the price set by the lord mayor . . also , if any citizen of this city by himself , or any other person for him , or to his use , use to resort into the country , and there buy and ingross greav quantity of cheese and butter at wellbarrelled as otherwise , and after conveigh it by water or otherwise to this city to be sold at deer and excessive prizes . . also , forasmuch as it is thought that divers and many persons dwelling within the liberties of this city , dayly occupy as freemen , whereas indeed they be none , nor never were admitted into the liberties of this city , ye shall therefore require every such person dwelling within this ward , whom ye shall suspect of the same , to shew you the copy of his freedome under the seal of office of the chamberlain of the said city , and such as ye shall find without their copies , or deny to shew their copies , ye shall write and present their names in your indentures . . also , you shall inquire and truly present all such persons as use melting of tallow , contrary to an act of common councel in that case made and provided . . also , you shall inquire of all armorers and other artificers using to work in mettal , which have or use any reardorses , or any other places dangerous or perillous for fire . . also , if any have appraised any goods of any freeman deceased , leaving behind him any orphan or orphans , and the appraisers not sworn before the lord mayor or the alderman of the ward . . also , if any freeman buy any wares or merchandizes unweighed , which ought to be weighed at the kings beam , of any stranger or forreign free of the liberties of this city , contrary to the act of common councel in that case made and provided . . also , if any buy and sell any cloth or clothes in the house , shop , ware-house , or other place of any clothworker or other person against any ordinance or custome of this city , or if any clothworker or other do receive or harbour any clothes before the same be brought to blackwell-hall , contrary to the ordinance made in that behalf . . also , if any carman take any money for carriage of any goods , wares , or merchandizes , above the rates ordained . . also , if any make or cause to be made any new building or buildings or divided or cause to be divided any house or houses , or receive any inmate or inmates , contrary to law , or any statute of this realm . . also , if any be dwelling within this ward , which do offer or put to sale any wares or merchandizes in the open streets or lanes of this city , or go from house to house to sell the same , commonly called hawkers contrary to an act made in that behalf . . also , if any have covenously , fraudulently , or unduely obtained the freedome of this city . . also , if any collector of fifteens or other duties for the publike service of the king or of this city , do retain in his hands any part of the money collected to his own use . . ye shall also enquire if there be dwelling within your ward any woman broker , such as resort unto mens houses , demanding of their maid servants if they do like of their services : if not , then they will tell them that they will help them to a better service , and so allure them to come from their masters to their houses , where they abide as boorders until they be provided for . in which time it falleth out that by lewd young men that resort to those houses they be oftentimes made harlots to their utter undoing and the great hurt of the common wealth : wherefore if any such be , you shall present them , that order may be taken for reformation . . also , if any have or use any common privy , having lssne into any common sewer of the city . . also , if any constable , beadle , or other officer , be negligent or remiss in discharging his duty , touching the execution of the statute made for punishment of rogues , vagabons , and study beggars , or otherwise , and wherein the default is , and the statute of . . and . iae. concerning the restraint of inordinate haunting and tipling in innes and alehouses , and repressing of drunkeness and other offences in the same statute , and wherein the default is . . also , if any to whom the execution of the statute made for relief of the poor doth appertain . he remiss in discharging his duty touching the execution of the same statute , and wherein default is . . also , if any executor or other person retain in his hands any legacy , sum of money , or other thing given to any charitable use . . ye shall inquire whether there be within your ward any common drunkard , whoremonger , blasphemer of gods holy name , prophaner of the sabbath , jesuite , seminary or secular priest or any receiver , releiver or maintainer of any of them , or any popish recusant , cozener , or swaggering idle companion , such as cannot give account how they live ; if there be any such you shall present them and the names of those that lodge them , or aid them . . ye shall also enquire , whether any person or persons do or shall say or sing mass within your ward , or be present at any mass . . also , if any person or persons within your ward being evil affected , do or shall extol the roman catholick religion above the religion professed and established by the kings majesties authority in england , or do or shall deprave the religion now professed in this realm by authority , as above , which may breed discord in the city , and dissention in the common wealth , ye shall carefully present the same persons and their offences . . also , if any person or persons that keepeth horses in their houses , do lay his or their stable dung , or such kind of stinking filth in any streets or lanes of this city , to the great annoyance of the people passing that way and do not lead his dung cart at his stable door as he ought to do . . you shall assemble your selves once every moneth or oftner if need require , so long as you shall continue of this inquest , and present the defaults which you shall find to be committed concerning any of the articles of your charge , to the end due remedy may be speedily supplied , and the offenders punished as occasion shall require . . and in making your presentments , your clerk is carefully to write the christian name , sur-name and addition , or calling of every offender , and the name of the parish wherein the offence was committed and some certain , time , how long the offence hath been continued and in presenting any persons , for dividing houses or inmates , to write the names and addition to the present landlord receiving the rent , and the names of the tenants in possession , and of the inmate in any house , and also to write in the margent on the side of every presentment the name or names , upon whose evidence you make such presentment . an act of parliament for the preservation of the river of thames , made in the . year of king henry the . vvhere before this time the river of thames , among all rivers within this realm , hath been accepted and taken , and as it is indeed most commodious and profitable unto all the kings liege people : and chiefly of all other frequented and used , and as well by the kings highness , his estates , and nobles , merchants , and other repairing to the city of london , and other places , shires and counties adjoyning to the same : which river of thames is and hath been most meet and convenient of all other , for the safegard and ordering of the kings navy , conveighance o● merchandizes , and other necessaries to , and for the kings most honourable houshold , and otherwise , to the great relief and comfort of all persons within this realm , till now of late divers evil-disposed persons , partly by miso●dering of the said river , by casting in of dung and other filth , laid nigh to the banks of the said river , digging and undermining of the banks and walls next adjoyning to the same river , carrying and converghing away of way-shides , shore-piles , boards , timber-work , ballast for ships , and other things from the said banks and walls in sundry places : by reason whereof , great shelfes and risings have of late been made and grown in the farway of the said river , and such grounds as lye within the level of the said water-mark , by occasion thereof have been surrounded and overflown by rage of the said water , and many great breaches have ensued and followed thereupon , and dayly are like to do , and the said river of thames to be utterly destroyed for ever , if convenient and speedy remedy be not sooner provided in that behalf . for reformation whereof , be it enacted , established , and ordained by the king , our soveraign lord , and by the assent of the lords spiritual and temporal , and the commons in this present parliament assembled , and by the authority of the same ; that if any person or persons hereafter , do or procure any thing to be done in the annoying of the stream of the said river of thames , making of shelves by any manner of means , by mining , digging , casting of dung , or rubbish or other thing in the same river , or take , pluck , or conveigh away any boards , stakes , piles , timberwork , or other thing from the said banks or walls , except it be to amend , and the same to repair again , or dig or undermine any banks or walls on the water side of thames aforesaid , to the hurt , impairing or damage of any the said walls & banks , then the same person or persons , and every of them , shall forfeit and pay for every time so offending , one hundred shillings : the one moyety thereof to be to the king our soveraign lord , and the other moyety thereof to the mayor and commonalty of london for the time being , the same to be recovered & obtained by the mayor & commonalty of london , by bill or plaint , writ of debt or information severally against every offender in any of the kings courts , in which actions and suits , or any of them , the party defendant , shall not be essoyned or wage his law , or any protection to be allowed in the same . and it is further enacted by the authority aforesaid , that if complaint shall happen to be made to the lord chancellour of england , lord treasurer , lord president of the kings councel , lord privy seal , or to any of them by any person or persons or body politick , that sir thomas spert knight , now having the office and ordering , of , & for ballasting of ships or any other that hereafter shall have the office and order of ballasting of ships do take any ballast for ships near the said river of thames , and do not take for parcel of the said ballasting the gravel and sand of the shelfes between greenhith and richmond within the said river of thames , or in any place or places , that is or shall be unto the damage or annoyance of the said river of thames , or in any part thereof , that then upon every such complaint the said lord chancellour , lord treasurer , lord president of the kings most honourable councel , lord privy seal , and every of them , calling both the cheif justices of either bench , or one of them , shall have power and authority from time to time , to hear and finally determine every such complaint , by their discretion , and to put such order therein , for the taking of ballast for ships upon every such complaint as by their discretions shall seem most convenient for the preservation of the said river of thames : and the parties offending such order , shall suffer imprisonment , and make no less fine then five pound to the kings use for every time offending or breaking the same . provided alwayes , and be it enacted , that it shall be lawful to every person and persons , to digge carry , and take away , sand , gravel , or other rubbish earth , or thing lying or being in , or upon any shelfe or shelfes within the said river of thames , with out let or interruption of any person or persons , or paying any thing for the same , any thing contained in this present act , to the contrary notwithstanding . an act of common councel concerning the conservation and cleansing of the river of thames , made the . of september , in the . year of king henry the . vvhere by the statute made in the . year of the raign of our soveraign lord king henry the eight among other for reformation of the misordering of the river of thames by casting in dung and other filth , many great shelves and other risings have been of late grown and made within the same river : by reason whereof , many great breaches have ensued by occasion thereof , which of like shall be the occasion of the utter destruction of the said river , unless that the same law be put in due execution according to the true intent and meaning thereof . wherefore for a further reformation of the same and to the intent that the said good and wholesome statute may be put in more execution , and better knowledge of the people : it is enacted by the authority of this common councel , that proclamation may be made within this said city : and the same to be put in writing and tables thereof made and and set up in divers places of this city , that it shall be lawfully to every person or persons , to dig , carry away , and take away sand , gravel , or any rubbish , earth , or any thing lying or being in any shelve or shelves within the said river of thames , without let or interruption of any person or persons , and without any thing paying for the same , and after that to sell the same away , or otherwise occupy or dispose the said gravel , sand , or other thing , at their freeliberty and pleasure . and that all paviers , bricklayers , tilers , masons , and all other that shall occupy sand , or gravel , shall endeavour themselves , with all their diligence , to occupy the said sand or gravel , and none other , paying for the same reasonably , as they should and ought to pay for other sand or gravel , digged out of other mens grounds , about the said city , which after is filled again with much filthy things , to the great infection of the inhabitants of the said city , and all other repairing unto the same . and that further , humble suit may be made to the kings highness , that all persons having lands or tenements along the said river side , upon certain pain by his highness , and the lords of his most honourable councel to be limited , shall well and sufficiently repair and maintain all the walls and banks adjoyning unto their said lands , that so the water may not , nor shall break in upon the same : and the same to be continued till the time that the said noble river be brought again to his old course and former estate . and that strong grates of iron along the said water-side , and also by the street-side , where any watercourse is had into the said thames be made by the inhabitants of every ward , so along the said water as of old time hath been accustomed . and that every grate be in height four and twenty inches at the least : or more , as the place shall need , and in breadth one from another , one inch : and the same to be done with all expedition and speed . and if the occupiers of the said lands and tenements make default contrary to the ordinance asoresaid : or else if any person or persons in great rains and other times , sweep their soylage or filth of their houses into the channel , and the same after is conveighed into the thames ; every person so offending , shall forfeit for every such default twenty pence , and that upon complaint to be made to any constable , next adjoyning to the said place where any such default shall be found , it shall be lawful for the said constable , or his sufficient deputy for the time being , from time to time distrain for the same offence . and to retain the same irreplegiable , and like law to be observed and kept . and like penalty to be paid for every person that burn rushes and straw in their houses , or wash in the common streets or lanes , and to be recovered as aforesaid , and the one moyety thereof to be to the mayor and commonalty , and the other moyety to be divided between the said constable that taketh pain and the party finder of the said default . and if the constable or his deputy refuse to do his duty according to the true meaning of this act , that then the constable or his deputy , which shall so refuse to his duty as aforesaid , shall forfeit and pay for every time so offending , three shillings four pence . and the same penalty of the said constable to be recovered and obtained by distress irreplegiable , to be taken by any of the officers of the chamber of london to the use of the mayor and commonalty of london . and further , that no person or persons having any wharfe or house by the said water-side , make not their laystalles nigh to the river aforesaid , except only the common laystalles , where the common rakets of this city use to repose , and lay all their soylage , to be carried away by them with their dung-boats . and that the said rakets shall lay their said dung , carried in their dung-boats , to such convenient place or places , as shall be appointed by the lord mayor of london for the time being , with the advice of his brethren the aldermen of the same , and to no other place or places , upon pain to forfeit for every such default five pound , to be recovered in any of the kings courts within the city of london , by bill , plaint , moyety of debt , or information by any person that will or shall pursue for the same : the one moyety thereof to be unto the mayor and commonalty of london , and the other moyety to him or them that will or shall pursue for the same , in which actions or suits , no wager of law nor essoygn shall be allowed . the oath of the constables within the city of london . ye shall swear , , that ye shall keep the peace of our soveraign lord the king , well and lawfully after your power . and ye shall arrest all them that make contect , riot , debate , or afray , in breaking of the said peace , and lead them to the house or the compter of one of the sheriffs . and if ye be withstood by strength of misdooers , ye shall rear on them an out-cry , and pursue them from street to street , and from ward to ward till they be . arrested : and ye shall search at all times , when ye be required by the scavengers or beadles , the common noysance of your ward . and the beadle and raker you shall help to reare and gather their sallery and quarterage if ye be thereunto by them required . and if any thing be done within your ward against the ordinance of this city , such defaults as ye shall find there done , ye shall them present to the mayor and ministers of the city : and if ye be letted by any person or persons , that ye may not duly do your office , ye shall certifie the mayor and councel of the city , of the name or names of him or them that so let you . ye shall also swear , that during the time that ye shall stand in the office , and occupy the room of a constable , ye shall once at the least every moneth , certifie and shew to one of the clarks of the mayors court , and in the same court , as well the names as sur-names of all free men ; which ye shall know to be deceased within the moneth in the parish wherein ye be inhabited , as also the names and sur-names of all the children of the said free-men so deceased , being orphans of this city . and thus you shall not leave to do , as god you help . &c. god save the king. the oath of the scavengers . ye shall swear , that ye shall diligently over-see that the pavements within your ward be well and sufficiently repaired and not made too high in noysance of your neighbours : and that the wayes , streets , & lanes be cleansed of dung & all manner of filth for the honesty of this city . and that all the chimnies , furnaces , and reredoes be of stone sufficiently and defensively made against peril of fire . and if ye find any the contrary , ye shall shew it to the alderman of the ward , so that the alderman may ordain for the amendment thereof . and thus ye shall do , as god you help . god save the king. the oath of every freeman of this city of london . ye shall swear that ye shall be good and true to our soveraign lord king charls , and to the heirs of our said soveraign lord the king. obeysant and obedient ye shall be to the mayor and ministers of this city , the franchises and customes thereof ye shall maintain , and this city keep harmless in that which in you is . ye shall be contributory to all manner of charges within this city , as summons , watches , contibutrions , taxes , tallages , lot and scot , and to all other charges bearing your part as a freeman ought to do . ye shall colour no forraign goods , under , or in your name , whereby the king or this city might or may lose their customes or advantages . ye shall know no forraigner to buy and sell any merchandize with any other forraigner within this city or franchise thereof , but ye shall warn the chamberlain thereof , or some minister of the chamber , ye shall implead or sue no freeman out of this city , whiles ye may have right and law within the same city . ye shall take none apprentice , but if he be free born ( that is to say ) no bond-mans son , nor the son of any alien , and for no less term then for seven years , without fraud or deceit : and within the first year ye shall cause him to be enrolled , or else pay such a fine as shall be reasonably imposed upon you for omitting the same : and after his terms end , within convenient times ( being required ) ye shall make him free of this city , if he have well and truly served you . ye shall keep the kings peace in your own person . ye shall know no gatherings , conventicles , or conspiracies made against the kings peace , but ye shall warn the mayor thereof , or let it to your power . all these points and articles ye shall well and truely keep , according to the laws and customes of this city to your power . so god you help . god save the king. an act of common councel . of june , . k. h. . concerning making freemen of the city , against colouring forreign goods . at this common councel , it is agreed , granted , ordained and enacted , that if hereafter any freeman or free-woman of this city , take any apprentice , and within the term of seven years suffer the same apprentice to go at his large liberty and pleasure : and within , or after the said term , agree with his said apprentice for a certain sum of money , or otherwise for his said service , and within or after the end of the said term , the said freeman present the said apprentice to the chamberlain of the city , and by good deliberation , and upon his oath made to the same city , the same freeman or freewoman assureth and affirmeth to the said chamberlain , that the said apprentice hath fully served his said term as apprentice . or if any freeman or freewoman of this city , take any apprentice , which at the time of the said taking hath any wife . or if any freeman or freewoman of this city , give any wages to his or her apprentice , or suffer the said apprentices to take any part of their own getting or gains . or if any freeman or freewoman of this city hereafter , colour any forreign goods , or from henceforth buy or sell for any person or persons , or with or to any person or persons , being forreign , or forreigners , cloths , silks , wine , oyles , or any other goods or merchandize whatsoever they be ; whether he take any thing or things for his or their wages or labor , or not . or if any person or persons being free of this city , by any colour or deceitful means from henceforth , do buy , sell , or receive of any apprentice within this city , any mony , goods , merchandize , or wares , without the assent or license of his master or masters : and upon examination duly proved before the chamberlain of the said city for the time being . and the same reported by the mouth of the said chamberlain at a court to be holden by the mayor and the aldermen of the same city in their councel chamber : that aswel the said master as the said apprentice , shall for evermore be dis●anchised . god save the king. the statutes of the streets of this city , against annoyances . . first , no man shall sweep the filth of the street into the channel of the city , in the time of any rain , or at any other time , under pain of six shillings eight pence . . no man shall cast , or lay in the streets , dogs , cats , or other carren , or any noysome thing contagious of air. nor no inholder shall lay out dung out of his house , but if the cart be ready to carry the same away incontinently , under pain of forty shillings . . no brewer shall cast willfully dregs or dross of ale or beer into the channel , under pain of two shillings . . no man shall encumber the streets with timber , stones , carts , or such like , under pain of forfeiture of the same thing that so encumbreth the streets , which is twenty shillings fine , if he remove it not at the warning of the serjeant of the market . . every builder of houses ought to come to the mayor , aldermen and chamberlain , for a special license for hourd of by him to be made in the high street , and no builder to encumber the streets with any manner of thing , taking down for the preparing of his new building under pain of forty shillings , except he make a hourd of sorty shillings . . no man shall set any carts in the streets by night time , under the pain of twelve pence , and recompence to such persons as shall be hurt thereby , if any such be , twelve pence . . no budge-man shall lead but two horses , and he shall not let them go unled , under pain of two shillings . . no man shall ride , or drive his car , or cart atrot in the street , but patiently , under pain of two shillings . . no man shall gallop his horse in the street , for wager or otherwise , under like pain of two shillings . . no man shall shoot in the street , for wager or otherwise , under like pain of two shillings . . no man shall bowl , or cast any stone in the street , for wager , or gain , or such like , under pain of two shillings . . no man shall dig any hole in the street , for any matter , except he stop it up again , under pain of two shillings and recompence to any person hurt thereby , two shillings . . no man bury any dung , or goung , within the liberties of this city , under pain of forty shillings . . goung-fermour shall carry any ordure till after nine of the clock in the night , under pain of thirteen shillings four pence . . no goung-fermour shall spill any ordure in the street , under pain of thirteen shillings four pence . . no man shall bait bull , bear , or horse in the open street , under pain of twenty shillings . . no man shall have any kine , goats , hogs , pigs , hens , cocks , capons , or ducks in the open street , under pain of forfeiture of the same . . no man shall maintain any biting curs , or mad dogs , in the streets , under pain of two shillings , and recompence unto every party hurt therewith , two shillings . . no carts that shall be shod with spig-nails that shall come upon the streets of this city , under pain of three shillings four pence . . no carts using dayly cartiage within this city , nor car shall have wheels shod with iron , but bare , under pain of six shillings . . no man shall burn any straw rusnes , or other thing , linnen or woollen , in the streets , by night or by day , under pain of three shillings four pence . . no man shall blow any horn in the night within this city , or whistle after the hour of nine of the clock in the night , under pain of imprisonment . . no man shall use to go with vizards , or disguised by night , under like pain of imprisonment . . that night-walkers , and eve● droppers , indure like punishment . . no hammer-man , as a smith , pewterer , a founder , and all artifice making great sound , shall not work a●ter the hour of nine in the night , not ●●fore the hour of four in the morning under pain of three shillings four pence . . no man shall cast into the ditches of this city , or the sewers of this city , without the walls , or into the walls , grates , or gullets , of this city , any manner of carren , stinking flesh , rotten fish , or any rubbish , dung , sand , gravel , weeds , stones , or any other thing to stop the course of the same , under pain of cleansing them at his own cost and charge , under pain of imprisonment . . no man shall make any widrawces in any of the town-ditches , or the town-gullets , under the pain of twenty shillings . . no man shall build nigh the walls of this city , without license of the lord mayor , aldermen , and chamberlain , under pain of throwing down the same , and no licence may be granted except that the chamberlain freely at all times have convenient and needful ingross , and entry , going out , and clear recourse . . no man shall go in the streets , by night or by day , with bow bent ; or arrows under his girdle , nor with sword unscabberd , under pain of imprisonment ; or with hand-gun having therewith powder and match except it be in an usual may-game , or sight . . no man shall after the hour of nine at the night , keep any rule whereby any such sudden out-cry be made in the still of the night , as making any affray , or beating his wife , or servant , or singing , or revelling in his house , to the disturbance of his neighbours , under pain of three shillings four pence . . no man shall make an affray upon any officer , which with good demeanour doth his message by commandment from my lord mayor , or any alderman , or mr. sheriffs , or mr. chamberlain , or misbehave himself in any rayling upon any judge of this city , or their officers , which by commandement are sent to bring any breaker of this law and custome to ward , or to distress , or such like , upon pain of imprisonment of forty dayes , and forfeiture of the double penalty : for the offences assessing , railing upon any alderman , or mayor in his office is judgement of the pillory : railing upon mr. chamberlain in his office , forty dayes imprisonment : beating , threatning , and railing of an officer , is imprisonment after the trespass is . . memorandum , that every offence found in this city , it is accustomed that the officer , a freeman , finding it , which is called primus inventor , hath half the penalty by the grace of the court. . also every freeman may find any offence , but he hath no power to bring the party before any judge of this city , without an officer , except the party will come to his answer by free will. . no man hath power to arrest , attach , or make distress of any goods sorfeitable , or offences , except the constable or serjeant of the mace. . no butcher or his servant shall not use to drive any oxe or oxen atrot in the streets , but peaceably : and if an oxe happen to be let go when he is prepared to slaughter , the butcher shall forfeit two shillings besides recompence if any person be hurt thereby . . no butcher shall scald hogs , but in the common scalding-house , upon pain of six shillings eight pence . . no butcher shall sell any measel hog , or unwholesome flesh under pain of ten pounds . . no butcher shall sell any old stale victual ; that is to say , above the slaughter of three dayes in the winter , and two in the summer , under pain of ten pounds . . none unreasonable victual for all manner of victuals . . no victualler of this city shall shall give any rude or unsetting language , or make any clamour upon any man or woman in the open market , for cheapning of victual , under pain of three shillings four pence . . no butcher shall cast the inwards of beasts into the streets cleaves of beasts feet , bones , horns of sheep , or other such like , under pain of two shillings . . the pudding-cart of the shambles shall not go afore the hour of nine in the night , or after the hour of five in the morning , under pain of six shillings eight pence . . no man shall cast any urine-boles , or ordure-boles , into the streets by day or night , afore the hour of nine in the night : and also he shall hot cast it out , but bring it down , and lay it in the channel , under the pain of three shillings four pence . and if he do cast it upon any persons head , the party to have a lawful recompence , if he have hurt thereby . . no man shall hurt , cut , or destroy any pipes , sesperals , or windvents pertaining to the conduit , under pain of imprisonment , and making satisfaction , though he doth it out of the city , if he may be taken within the city . . no man within this city may make any quill and break any pipe of the conduit coming through his house , or nigh his ground , under pain of the pillory or take any water privily unto his house . . casting any corrupt thing , appoysoning the water , lourgulary and fellony . . whosoever destroy or perish any cocks of the conduit , must have imprisonment and make satisfaction . old laws and customes of this city . . no man shall set up shop or occupy as a freeman afore he be sworn in the chamber of london , and admitted by the chamberlain , under pain of . . no man shall set over his apprentice to any other person , but by license of master chamberlain , and there to be set over , under pain of . . no man which is a forreign , shall not buy nor sell within the liberties of this city with any other forreign , under pain of forfeiture of the goods so forreign bought and sold . . no freeman shall be disobedient for to come at master chamberlains commandement , to any summons to him given by any officer of the chamber , under pain of imprisonment . . master chamberlain hath power to send a freeman to ward , that he incontinently after send to the lord mayor , the cause why that he is punished , so that the lord mayor release him not , but by the chamberlains assent : and if he be a great commoner and disobeying to the chamberlain , master chamberlain may refer it to a court of aldermen . master chamberlain hath authority to send or command any apprentice to the counter for their offences : and if their offences be great , as in defyling their masters houses by vicious living , or offending his master by theft , or dislander , or such like , then to command him to newgate . apprentice enrolled , his master payeth two shillings six pence . apprentice set over , he that receiveth , two shillings . apprentice made free he payeth four shillings . apprentice never enrolled , and made free , his master payeth thirteen shillings two pence . a man made free by his fathers copy , payeth eighteen pence . a proclamation made in the time of the mayoralty of sir michael dormer knight . an act of common councel , made in the even of st. michael , anno regis henrici octavi . that no person should lay any wares in the street , or beyond the edge of their stall , upon pain of forseirure the first time six shillings eight pence : the second time thirteen shillings four pence : and the third time , the ware so laid . by an act of parliament in the . car. . it is enacted , that all and every person that inhabiting within the cities of london and westminster , suburbs and liberties thereof , and burrough of southwark , or in any the new built streets , lanes ' , alleys and publick places , before their respective houses , buildings and walls twice every week viz. wednesday and saturday , and all the soile , dirt and other filth , shall cause to be caken up into baskets , tubs , or other vessels , ready for the scavenger or other officer , to carry away upon pain of three shillings four pence for every offence or neglect respectively . that no person whatsoever , shall throw , cast or lay , or cause to be cast , thrown or laid , any seacole-ashes , dust , dirt or other filth , with the said cities and places aforesaid , in any place , street , lane or alley , before his , her , or their own dwelling houses , buildings or walls on the penalty of five shillings ; and it before the houses , building , &c. of any of their neighbours or other inhabitants of the said cities or places , or before or against any church , churchyard , or any of his majesties houses , buildings or walls or any other publick houses , buildings , &c. or cast , lay or throw , &c. into any common or publick sink , vault , water-course , common-sewer , or highway within the cities or places , &c. or any other private vault or sink of any of his neighbours , or other inany dust , ashes , filth , ordure , or other noisome thing whatsoever , but shall keep , or cause the same to be kept in their respective houses , &c. until such time as the raker , scavenger , &c. or other officer do come by or near their houses or doors , with his cart , barrow , or other thing used for the cleansing of the streets , and carrying away thereof ; and then shall carry the said ashes , dust , &c. out of their houses and deliver it to the raker , scavenger or officer or otherwise put the same into his cart , &c. upon pain to forfeit twenty shillings for every offence . the respective churehwardens , house-keepers of whitehall , or other his masties houses ; housekeepers or porters of noblemens houses , ushers or keepers of the courts of justice , and all other publick houses and places respectively shall be liable to suffer the like penalties , forfeitures and punishments for every like forementioned offences done or suffered to be done before any church , churchyard , or before any of his majesties houses , noblemens houses , buildings , or before any other publick houses , or places whatsoever respectively . no person shall hoop , wash or cleanse any pipe , barrel or other cask or vessel , in any the streets , lanes , or other passages aforesaid , nor set out any empty coaches to make or mend , or rough timber or stones to be sawn or wrought in the street upon pain of twenty shillings for every offence . the rakers , scavengers and officers hereunto appointed , every day in the week ( except sundays and other holylayes ) shall bring carts , dung-pots or other fitting carriages into all the streets within their respective wards , parishes and divisions , where such carts &c. can pass , and at or before their approach , by bell , clapper or otherwise , shall make loud noise and give notice to the inhabitants of their coming , and so into every court , alley or place where carts can pass ; and abide or stay there a convenient time , that all persons concerned may bring forth their respective ashes , dust , &c. to the respective carts , &c. all which the said raker , scavengers or officers shall carry away upon pain of forty shillings for every offence , or neglect respectively . all the open streets , lanes and alleys within the cities and places aforesaid , are to be sufficiently repaired and paved , and kept paved , and sufficiently repaired , at the cost of the housholders in the said streets , lanes , &c. respectively viz. every housholder to repair and pave , and keep repaired and paved the streets and lanes , &c. before his house unto the channel or midle of the same street or lane , &c. upon pain of forfeit twenty shillings for every rod , and after that proportion , for a less quantity , for every default , and twenty shillings a week for every week after , till it be sufficiently paved and amended . provided such ancient streets , lanes , &c. within the said cities , or either of them , the suburbs or liberties thereof , as by custome and usage have been repaired in other manner , shall be hereafter repaired , paved and amended in such sort , by such persons as have used to repair , pave and maintain the same under the penalties aforesaid . every housholder within the said cities and places aforesaid , whose houses adjoyns unto , or is next the street from michaelmas till our lady-day yearly , shall set or hang out candles or lights in lanthorns , or otherwise in some part of his house next the street , to enlighten the same for passengers , from such time as it shall grow dark until nine of the clock in the evening upon pain of . sh . for every default . every justice of either bench , ba●on of the exchequer , and justices of ●he peace of london and wistminster , ●ave power on their own view , or proof by one witness upon oath to convict persons offending against this act , and to dispose the penalties towards mending and cleansing the strees , if upon proof , half to the party informing , if uqon conviction by view , then the whole to the repairing and cleansing the streets or wayes , to be levied by warrant from any justice under his hand and seal directed to the constable or other officer of the same parish by distress and sale of his goods , and for default ( if no peer ) imprisonment until payment . within london and the liberties thereof the scavengers , rakers and such like officers shall be elected , and the rates and assesments for them for the cleansing of the streets shall be rated , raised and paid by the parishioners and inhabitants of every parish and precinct according to the ancient custome and usage of the city , and all new messuages , tenements and houses shall be rated and assessed , and pay proportionable with the other in westminster , the said officers shall be chosen according to the custome of that city , and the rates paid according to the custome of that city , in all other parishes or places upon every tuesday or wednesday in easter week : the constables , church wardens and overseers for the poor , surveyors of the highwayes of every parish aforesaid , giving notice and calling together such inhabitants of their parishes , as have born the like offices , they or the greater number of them shall appoint two , that are tradesmen in their parishes , to be scavenger , for the streets , &c. of each ward to continue for a year , who shall perform the office upon pain of twenty pound , but upon refusal others shall be chosen , the same penalties to be levied and imployed for mending the streets and wayes of the same parish , by distress and sale of the offenders goods , and imprisonment by default by warrant as aforesaid . within twenty days after election of such officers , a tax or pound rate shall be made by the inhabitants of every parish , which being confirmed by two justices of the peace , shall be quarterly paid upon demand by the officers appointed , and upon refusal levied by distress and sale of the goods , by warrant from two justices of the peace , and for lack of distress by imprisonment of the offender ( not being a peer ) until payment . provided all actions against persons for executing this act , shall be laid in their proper county , and the defendant may plead the general issue and recover double cost if wrongfully vexed . by the same statute no hackney coachman licensed , shall take for his hire in or about the city of london and westminster , above . sh . for a day reckoning . hours to the day , and not above . d. for the first hour , and . d. for every hour after , and no gentleman or other person shall pay from any of the inns of court or thereabouts to any part of st. iames or westminster above . d. and the same rates to the same places or thereabouts back again , and from any of the said inns of court , or thereabouts , to the royal exchange . d. to the tower of london , bishopsgatestreet , algate or t●ereabouts . d. and so from the said places to the inns of court , and the like rates from and to any place of like distance and if any coachman shall refuse to do , act , or exact more for his hire then thereby limited he shall for every offence forfeit . sh . finis notes, typically marginal, from the original text notes for div a -e trinterm . . jac. rex rot. . kings-bench . the pleading of this case see in the new-book of entries fol. & . quest . . three commodities of lights by a window , air by health , light by profit , pleasure by prospect . cook . rep. eldred case . vide , hobarts reports , robins of b●ns . . quest . . . quest . a new house built upon an old foundation , without enlargement either in longitude or latitude , though never so high built , shall not be taken to prejudice the neighbour . hill. . jac. in banco rep. information upon the stat. of . eliz. . concerning manualoccu● pations , &c. the custome of l pleaded in bar quest . . quest . . sel. rat. . . quest . . rat , . rat. . rat. . rat. . . h. . cap. . quest . . rat. . . . rat. . quest . . sol. ● : quest . . sol. mich. jac. rs. in banco rs. quest . . mich. . eliz paramoreversus pain . quest . . quest . mich. . eliz. rot. . ea. term. . iac. rex roll. . kings be. you should read frances all the way . counsel● . in the case judges , four of the judges for the defendant . rat. . . h. . . rat. . h. . ● . e. . . rat , . eliz dy . . eliz. the lord mordants case . rat . rat. . . h. . . rat. . . ass . parl. . rat. . rat. . rat. . three judges of contrary opinion . ●t . . . . h. . . sir h. calthrops report and opinion . . what prisage is . . e. . . . ric. . rot. pat. . e , . rot. pat. fleta . lib. . cap. . . r. . rot. pat. . the ground of paying the k. prisage . . when prisage is due . sir ed. crook , sir john doddridge . . r. . . kenniston . . whether the king may grant , or discharge prisage . . elix . e . rot. pat. . grant to a body politique for the benefit of bodies natural . e. . . e. . . . whatpersons are discharged by the words of the charter . . sort. citizens of five sorts . . sort. . sort. . ass . par. . . ass . pat. . . sort. . sort. . what wines are discharged of prisage . . h. . cap. . . benefits of having woollen cloth died and dressed in england . . . hill. . jac. rex k. bench. rat. . . past all resumption . . . hill. . k. bench. rat. . pasc . . jac. chan customary actions to be tried only in the place where the custome lieth . pasc . . jac. k. bench. upon rent of a mess . let at an ancient rent of . l. per. an . and a fine to be paid by ● . l. per. ann . quest . . . . . . quest . . what the parson may by law demand for houses in london ? fitz. herb. nat . brev . fol. . . eliz. dawsons case k. bench. . . report . sol . . . what was anciently paid for houses in london to the parson . and how these payments grew niger bishop of london's constitution . . h. . . e. i. . l. . . tho arun arch-bish . of cant. . r. . pope innocent . . h. . pope nich. . h. . linwood , fol. . submission to the lord chancellour and privy-councel . . h. . . cap. . h. . decree , cap. . which decree by the act ought to have been enrolled in chancery in six moneths ; but search hathbeen , and it is not found . . whether the fine paid , by . per. an. b● a rent within the words of the decree ? . whether the perann . thus covenanted to be paid for fine , be lent within the intent of the decree ? . arguments on ministers part . argument on the citizens part . . notes for div a -e error fitzz . . s. fitzz . . s. this is now altered by the stat. of . h. . ca. i. of wills. notes for div a -e ward-mote , inquest for a year . inquest dying . non appearance . watch , light , visard . common councel . constables , scavengers , beadle , raker . roll of names . constable roll. inholder , lodger , sojourner search . new-comers . frank-pledge . beadle . fire . streets . hucksters of ale and beer . measures scaled . strange born . streets . vagarants . jury-men . harlots . articles commons , dinners , banquetting . fire and candle , &c. recreation . peace . outlaws , traitots , fellons , &c. thames . congregations . riotör . barrator . peace , hue and cry. hucksters , receivers of apprentices , artificers , &c. inholder , taverner , victualer . curfue . bauds , maintainers , of quarrels . strumpet , adulterer , witch , scold . hot-house . thames , ditches , streets , &c. channel . hogges . kine , oxen , ducks , persons indited in one ward , flying into another . colouring forraign goods . forreign buying and seling . freemen not resident . orphans , wards , marringes . officers . boteman , feriour . purprestures . pent-houses , jetties , stalles , &c. way , water course . pavements . regrators , forestallers . price of victual . hay . victuals unwholesome price . measures unsealed . weights and measures . inholder , brown baker . house , tile leaper , beggar . bakers , brewers . painted visage . candle light . wood. country . cheese , butter . freemen to shew their copies . melting tallow . appraisers . beam. clothes . carmen . buildings , divided houses , inmates hawkers . freedome . collectors . women receivers of servants . privies . vagabons poor . legacies . drunkard , whoremonger , sabbath , jesuite , seminary priest , secular priest , popish recusant , cozenes , &c. mass . roman catholick religion . assembly monthly . making of presentments . an assize sermon preached before the right honourable the lord chief justice glyn and mr. serjeant earle, judges of assize at bridgnorth in shropshire, july the d, / by thomas gilbert ... gilbert, thomas, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing g ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing g estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) an assize sermon preached before the right honourable the lord chief justice glyn and mr. serjeant earle, judges of assize at bridgnorth in shropshire, july the d, / by thomas gilbert ... gilbert, thomas, - . [ ], p. printed by a.m. for francis tyton ..., london : . title page vignette. errata on p. . reproduction of original in union theological seminary library, new york. eng law (theology) -- sermons. sermons, english -- th century. a r (wing g ). civilwar no an assize sermon, preached before the right honourable the lord chief justice glyn, and mr serjeant earle judges of assize at bridgnorth in gilbert, thomas f the rate of defects per , words puts this text in the f category of texts with or more defects per , words. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - olivia bottum sampled and proofread - olivia bottum text and markup reviewed and edited - pfs batch review (qc) and xml conversion an assize sermon , preached before the right honourable the lord chief justice glyn , and mr serjeant earle judges of assize at bridgnorth in shropshire , july the d . by thomas gilbert minister of the gospel at edgmond in that county . london , printed by a. m. for francis tyton at the three daggers in fleet-street , . to the right honourable the lord chief justice glyn . right honourable ; this pains which another call'd to the pulpit , your honour hath commanded to the press : i would hope but to a second impression of it , the first being in your own and others hearts . your attention spake your affection to it in the preaching : your judgment of it ( so much above mine own ) will be apologie sufficient for the printing ( in this almost as much printing as scribling age : ) and your authority commanding it the pr●ss , hath even therein engag'd for the patronage of it printed . i promise my self also the third impression in the whole course of judicature , at the stern whereof your honour sits lord chief justice , hearing ( and i am perswaded deservedly ) the best book-man of the nation , and knownly no less exquisitely able in the disquisition of a cause , then in the knowledg of the rule : now if your honour either already did not , or did not still resolve with this , either ability to answer your trust , and make good your style , you would not have desir'd the light of this sermon also to stare you in the face . nor may this sermon have its use onely with your lordship in this your so honourable publick station , but more especially in your private christian cap●city , as your remembran●er , in all , often to lay your self to the line of that law of liberty , by which publick judges , as well as private christians must be judg'd . that the lord would follow it with his blessing , both preach'd and printed , to some measure of usefullness , both to your honour and others , is the prayer of right honourable , your honours most humble remembrancer at the throne of grace , thomas gilbert . to the worshipfull edmvnd waring esq high sheriff of the county of salop , and captain of the county-troop . truly honour'd sir ; this sermon is not bec●me less yours for becoming so much anothers : nor will that honourable person grudg you a part in the dedication from whom the whole had its rise . its appearance in another dress , doth no more vary the case , than a servants changing his cloathes changeth his relation to his master . you have in your single hand a two-fold posse both civil and military of this county ; an interest in it above both ; and i think for your time above any gentlemans of your rank in any county of england . you have received all from the supreme lord , and must render an account of all to the supreme judg held forth in this sermon . which that you may doe with joy , and not with grief , when judg'd by the law of liberty , is the prayer of truly honour'd sir ; your friend and chaplain thomas gilbert . an assize sermon . james iid ver. xiith so speak ye , and so do , as they that shall be judged by the law of liberty . the nine first verses of this chapter , mine apostle bestow's in reproving those he writeth to for , and dehorting them from their sinfull respect of persons ; and after sundry arguments to that purpose manag'd , and an emergent objection in the tenth and eleventh verses , by way of prolepsis , or anticipation answered , he layeth in a most powerfull argument in my text , as especially against the fore-mentioned , so generally against all sinfull : and for all gracious behaviour , the most free and impartial judgment they were to expect from god , according to his most free and impartial law . so speak ye , and so do , &c. in the words you have . a two-fold act . . obedience . . judgment . . a two-fold agent . . man of the act of obedience expressed , ye . . god of the act of judgment implied in both the act and rule of judgment . . mans act of obedience commanded , and that in two particulars . . words — speak . . works — do. — and these two us'd by a synecdoche of some specials for the whole general of obedience ; thoughts too here to be understood , as ver. th expressed . . as mans obedience commanded , so gods judgment foretold , shall be judged . . gods judgment foretold in form of a motive to mans obedience commanded in form of an exhortation , so speak , and so do , as they that shall be judged . . one and the same rule both of mans act of obedience , and gods act of judgment , the law of liberty : which phrase only is of necessity to be explain'd . {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , by a common hebraism for {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} the law of freedom for the free law ; ( as to name no more examples ) eph . . {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} for {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , holiness of truth , for true holiness . now where the genitive of the substantive , is by such an hebraism used for an adjective of quality , it is to express the ●minent measure of the quality ; and accordingly ye have in the fi●st chapter , vers. th of this epistle , this same phrase by this same apostle thus fil'd up , the perfect law of liberty or freedom , for the law of perfect freedom , or the perfectly free law ; a law so free that nothing is wanting to the freedom of it . so that here the law of liberty or freedom is as much as the most free law ; most free from all partial by-respects censur'd in the context . a most free and impartial rule of mans obedience , commanding obedience , and forbidding disobedience of one kind as well as another , to one person as well as another , and a most free and impartial rule of gods judgment of all persons whomsoever , according to whatsoever their obedience or disobedience . this interpretation however commentators vary , the phrase it self , scope , and context , the best rule of expounding necessarily bespeak . so that now the whole amounts to thus much : be you sure in your obedience to conform to the impartial law of god ; for god will be sure to conform to it in his judgment of you . and passing t●e several observations the severals of this text would furnish out ; the doctrine that taketh in the main strength of the whole , and therefore deserveth to be insisted on , is this : the same law of god is the rule of mans obedience , and of gods judgment . this i shall first prove by scripture , and then answer some quere● for the better clearing of it . for s●ripture-proof take one out of the old t●stament . isaiah . . the lord is our judg : the lord is our lawgi●●r . as judg he observes the same law for the rule of his judgment , which as lawgiver he appoints the rule of mans obedience . out of the new testament two or three proofs . joh. . the word that i have spoken , viz. as a rule of obedience now , the same shall judg him , viz. as a rule of judgment at the last day . rom. . in that day when god shall judg the secrets of men by jes●s christ , according to my gospel . god who delegates christ the judg , appoints the rule of judgment , the same as of mans obedience pauls gospel ; not any fifth gospel written by paul as some of the papists fondly imagine ; nor yet the gospel written by st luke as pauls amanuensis ; but the gospel , saith austin a , contain'd propheticis & apostolicis libris , in the books of the apostles and prophets ; called pavls , because he is the preacher of it , by much better right then i call james mine apostle , when preaching upon a t●xt of his epistle . rev. . . the last proof i shall offer , ye have a solemn representation made to john by vision of the last general assize , the throne set , books open'd , and dead judg'd . b origen and c ambrose interpret the books there said to be open'd , the books o● mens conscience , and gods omniscience . d austin and our old countrey-man bede , the bo●ks o● the old and new testament . why may not these antients divide the truth between them ? when it 's said the books were opened , i conceive both may be taken in . when it 's said t●e dead were judged out of those things which were written in the books according their works , i conceive both must be taken in , origens books , the books of mens conscience , and gods omniscience , as records of fact ; austins books , the books of the old and new testament , as records of law ; that in these ( as austin saies ) might be seen what laws god hath commanded to be observed in those . not as austin in that of life , how men had , or had not observed them . the point thus proved , i shall now in the second place make some queres for the better learning of the doctrine . quere i. how the same law of god is the rule of mans obedience , and gods judgment . answ. the same law in different respects . the rule of mans obedience in the precepts and prohibitions ; gods judgment , in the promises and thre●tnings . . the law of god is t●e rule of mans obedience in the precepts , and prohibitions : for , as where no law is , there is no transgression : no sins of commission , where no negative laws or prohibitions ; no sinnes of omission , where no affirmative laws or precepts : so where no law is , there 's no obedience neither ; man might , and must have been subject to god , as supreme lord without any laws ; he could not without laws be obedient to god , as rector . . the law of god is the rule of gods judgment in the promises and threatnings , annexed to the precepts and prohibitions : for as the precepts and prohibitions determine mans duty , and sinne , what shall be his duty , and what his sinne ; so the annexed promises and threatnings , determin gods rewards and punishments ; the promises , what shall be gods reward of mans duty the threatnings , what shall be mans demerit of gods punishment for his sin . so that had no promise been annexed to the precepts and prohibitions , man obeying both , had indeed been capable of reward , but god is not bound ●o conferre it : and had no threatning been annexed to the precepts and prohibitions , man disobeying both had indeed been capable of punishment , but not bound to suffer it , much less god to inflict it : for the very threatning annexed in the meer nature of a threatning , if it be not a denunciation also , b●nds not god to inflict , but man only to suffer if god inflict . i have been the more brief in this first quere , because to be more large in the second . quere ii. what law of god it is that is the rule of mans obedience and gods judgment ? answ. not one and the same law to all , but different according to the different state and condition of the persons to be ruled and judged by it ; yet so , that the same persons have still the same law , the rule of their obedience , and gods judgment . now there 's a three-fold different state and condition of persons to be rul'd and judged by the law of god : some . who never had christ , or not sufficiently discovered and proposed to them . . who having had christ sufficiently proposed to them , have not by saving faith received and clos'd with him . . who having had christ sufficiently proposed to them , have by saving faith received , and clos'd with him . . that law of god , which is the rule of their obedience to god , and gods judging of them , who never had christ , or not sufficiently discovered and proposed to them as the law of nature , under the formality of a covenant of works written in their hearts , if gentiles , or in tables also , if jews . none of these , whether j●ws or g●n●●les , are requir●d obedience according to the law of gospel-faith never pub●ished among them ; neither shall they be saved by that gospel-faith they never had in them , nor be condemn'd for want of that gospel-faith , never required of them in a mediatour , never , or not sufficiently held forth to them . for credibile sufficienter proposi●um ad sidem obligat : now christ ●s only sufficiently proposed , where himself the end for which , and termes , on which he is proposed are sufficiently made known : where this is not done , there 's no obligation of duty to believe , and therefore , there can be no obligation of guilt for not so believing . so that here the gospel can neither be the rule of mans obedience , nor of gods judgment . but . if they be gentiles , in this condition , their obedience or disobedience shall be scan'd according to the law of nature written in their hearts , ( and this law of nature written in mens hearts being as capable of sanction by promises and threats , as written in tables ) judgment accordingly passed on them . see both these rom. . v. . this law their rule of ●bedience : these having not the law , are a law unto themselves . ver. . this law gods rule of judgment ; they shall perish without law ; gods judgment of all such , a judgment of condemnation for their disobedience to the law . for though some of them may do ( as the apostle saith ) {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , the things contained in the law , he meaneth but some things ; and of those some things for the matter , which they do , contain'd in the law ; they do nothing for the manner and measure of doing required by the law . now d●ut. . . it shall be our righteousness if we observe to do all these commandements before the lord of god , as he hath commanded us ; not only all , commanded for matter , but as commanded for manner or measure , or no legall righteousness . and if it be here objected , that the same essentials of the moral creature , ( according to that of the apostle ) are a law unto themselves , are at once mans both rule and principle of obedience , and therefore , the one cannot be more perfect , or imperfect than the other ; and an imperfect principle may come up to perfect obedience to a rule equally imperfect with it self , and so gods judgment must be according : not to dispute the suppositum . answer . the condition of the law of nature , as it hath the super-added formality of a covenant of works is such , that being once broken it can never be performed by him that breaks it . the souls of just men made perf●ct , could not con●inue a moment in heaven , in the right of their own perfect inherent righteousness ; it being the righteousness of persons who had sin'd . . that the esse●tials of the moral creature , man , if they have the capacity of a law to be obeyed , as well as of a principle to obey ; yet in the capacity of a law , they are a necessary law , so requiring , that they cannot but require obedience ; but in the capacity of a principle they are a free principle , so able to yeeld , that they may not yeeld obedience : and , ( which is more ) never did any fallen man do what he was able by his essentials , as a principle of obedience to the same essentials as a law . . that man at first had not only natural principle enableing him to do the things for the matter contain'd in the law , but a supernatural principle also enabling to the manner of doing required by the law ; that by his fall his naturals were indeed but corrupted , and that perhaps equally , both as a law requiring of , and principle enabling to the things to be done for the matter ; but his supernaturals enabling to the gra●ious manner of doing were wholly lost . . that man hath indeed by sinne , as much blur'd , and blotted , rent , and razed his counterpart of the law , and covenant of works , as he hath vitiated , and weakened his natural principle ; but god hath kept his counterpart of the same law pure , and entire . now gods procedure in judgment will not be according to heathen mens rent , and razed , but his own pure and perfect counterpart of that law ; as a landlord will deal with a tenant in the like case of a lease . so that the infidel heathen , as he sinnes without , shall also be judged by god to perish without law i. e. doth not in sinning , shall not in judging come under the aggravation of the jews sinne against , or judgment by the law written in tables , no more then of the unbelieving christians sin against , or judgment by the gospel ; but shall be judged by , as he sinnes against the law written in his heart , and not only as in his heart corrupted and defaced , but as in the uncorrupt counterpart , the great judg keepeth by him . . whereof more briefly , if they be jews in the forementioned condition ( as 't is conceiv'd many of those people especially since the dispersion are ) their obedience , or disobedience shall be measur'd according to the line , and rule of the law written in tables , and gods proceeding in judgment with them accordingly . rom . as many as have sinned in the law , shall be judged by the law , 't is clearly spoken of the jew ; as many as have sin'd {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} in the law , commonly interpreted by {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} having the law : but i conceive there 's more , much more in the expression then so : {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} , in the law , means in the midst of so much law , in the face and light of so pure and clear law : as many as have thus sin'd in the law shall be accordingly judged by the law , so much more severely , then the infidel heathen , as they have sin'd more hainously against a perfect transcript by the hand of that perfect counterpart in the hand of the great law-giver himself , never purchased to the infidel heathen : rom. . . tribulation and anguish upon every soul that doth evil , of the jew first , and also of the gentile . . those who have had christ , whether jews , or carnal christians , sufficiently proposed to them , but never by saving faith closed with him , have both law and gospel the rule of their obedience , and shall have of gods judgment . they have . both the law , and gospel the rule of their ob●dience . . the law and covenant of works , because they are under it ; under it as the law of nature , as men , that , binding all whether in , or out of christ to its obedience ; under it as the the covenant of works , as men out of christ , there being but two covenants of works , and grace between god and man , and every man under one of them , if not that of grace , the other of works : for , neither could mans first disobedience , nor succeeding disability thereupon bastle the rigorous demands of it 's precepts . . the gospel also is to such a rule of obedience requiring them to come under its new positives of faith and repentance . mar. . preach the gospel to every creature . . . repent and b●lieve the g●sp●l . whatsoever the law speaketh , it speaks to them that are under the law , but the gospel speaks to men that yet are not under , to come under it , and it 's their great sin that they do not obey . . such shall have both law , and gospel gods rule of judging them . . the law and covenant of works , because broken by them , gal. . . cursed is every one that continueth not in all things which are written in the book of the law to do them . for , if by disobeying the precept , they did not void the powers of the precept , much less of the threatning . nay , they could no otherwise forfeit the promise , and incur the threatning than by disobeying the precept . . the gospel and law of faith , because they finally reject it : now 't is more hainous finally to dis-believe the gospel , then first to disobey the law : and this aggravates as their sin against the gospel as the rule of their obedience , so also the wrath of the gospel against them , as the rule of gods judgment . john . . . , . those who have had christ sufficiently proposed to them , and by saving faith closed with him , have both the gospel , and law of nature , or moral law the rule of their obedience to god , and shall have both gods rule of judging of them . . they have them the rule of their obedience unto god . . the gospel requiring of them perseverance in obedience to it's positives . be thou faithfull unto death , rev. . . for as faith is required to the getting , so perseverance in faith to the keeping of a gospel title . . the moral law or law of nature requiring perseverance , and improvement in obedience to its morals . cor. . ult. alwaies abounding in the work of the lord . and this their obedience not , to god as creatour only , but as redeemer also : not as it self the condition of the covenant of works , but as fruit , and evidence of the condition of the covenant of grace gospel faith , and the way to the poss●ssion of that inheritance gospel faith entitles to . . such shall have both these the rule of gods judging them . . the gospel in the promise of life annexed to its possitive of believing . for such is bo●h the wisdom and mercy of god , that that life man forfeited by transgressing a legal positive eating the forbidden fruit ; he should recover by obse●ving a gospel-positive faith in a med●atiour . faith in god is of the law moral ; faith in a mediatiour a gospel-positive ; now to this gospel-positive is annexed the promise of ete●nal life . act. . . — . , &c. and from this gospel-promise of life annexed to this gospel-precept of ●aith in a mediatour , hath faith the nature and notion of a title , and will accordingly be so judged by god . in relation to the precept it hath the nature of obedience , in relation to the promise the nature of a title . there is indeed in the nature of faith , as a receiving grace a peculiar aptitude above other graces to become a title , but that it actually becomes such is from the constitution , and ordination of god by his gospel-promise . as the rain-bow had its peculiar aptitude by nature above all other meteors to become the sign of that covenant god made with noah , no more to destroy the world by water ; that bow being alwaies placed by the pencil of the sun beames , in so thin a dewy cloude from which no great rain can ensue ; but that it should be a sign of no universal deluge ever after to ensue from the collection of any other clouds was meerly by divine institution . so faith of its own nature as a receiving grace had a special aptness above all other graces to become the condition of the covenant of grace ; but that it actually became such , the condition of the covenant of grace , and title to the grace of the covenant , was meerly by the free constitution of god . and his judiciary sentence will be according to his gospel-constitution . . and as god will judg here according to his promise , annexed to his positive precept of the gospel for faith in a mediatour ; so will he judg here too according to his promise , annexed to his moral precepts of the law for obedience , as fruit and evidence of that faith , rom. . . mat. . , , &c. in the former place non-condemnation , and consequently salvation is made the priviledge both of those that are in christ by gospel-faith , and those that walk after the spirit , but principally of a state in christ by gospel-faith , of walking after the spirit as characteristical and signative of that state and condition . in the latter place you have the sentence passed accordingly : come ye bl●ssed o● my father . there 's their {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} adoption and sonship by chr●st , with the blessedness of that state : receive the kingdom : there 's the inheritance adjudged to them . for ye have done , so , and so that ( for ) not inferential of the moral meritoriousness of their works of mercy to christ and his members , but of their own membership by faith evidenced by their works of mercy to their fellow-members . thus largely , too largely i fear for the straitness of time though not for the weight of the things , of the second qu●re . a third quere should have been what manner of rul● of mans obedience , and gods judgment the law of god is ? and for answer i should have shewed that 't is . an obliging rule , for that 's the nature of a law , regula obligans , i think as just a definition of lex as most given . . an obliging rule in respect of mans obedience ; as a rule 't is an act of the divine understanding shewing man in what way he may walk as his convenience , regula indicat , as an obliging rule or law , 't is an act of the divine will requiring man to walk in that way as his duty , lex imperat . see both these in that one scripture , mich. . he hath shewed thee , oh man , what is good : there 's the proper act of the law of god simply as a rule ; and what doth the lord require of th●● , &c. there 's the proper act of the law of god as an obliging rule . . an obliging rule in respect of gods judgment , and there proportionably as a rule it shews what rewards god may apportion to mans obedience , or punishments to mans disobedie●ce . as an obliging rule or law i●'s obliging upon god to conferre such rewards upon mans obedience , and obliging , not upon god to inflict , but upon man to undergo such punishments upon his disobedience , if god infl●ct them on him . . the first obliging rule : as the will of god exerting or putting forth his natural pow●r or strength , is in natural things the first effici●nt cause ; so the will of god exerting , or putting forth his moral power or authority , is in moral things the first obliging rule : and as all things in nature act dependingly upon the will of god , putting forth his natural power as the first efficient cause : so in morality all laws oblige dependingly upon the will of god putting forth his moral power as the first obliging rule , whether in point of obedience or judgment . this , such judges and pleaders of law , as are makers of law too among us , have special reason to take notice of . therefore for the exellently both full and clear handling of this point and many singular corollaries drawn down from it , i shall referre them to petr. de alliaco the learn●d cardinal of cambray in princ. in prim sentent . in quaest. d●term . in vesper . ad calcem . . ●● senten . . a rule obliging in the first place to obedience , and in the second to judgment . first , obliging man to obedience , and secondly either upon his performance obliging god to conferre the rewards promised , or upon his non-performance obliging man to suffer ( if god inflict ) the punishments threatned . this clear , as in the nature of the things , so in the order of the words in the text ; so speak ye , and so do , as they that shall be judged . . a most freely and impartially obliging rule both in point of obedience and judgment . this too in the text : the law of liberty , and that in the explication sufficiently cleared , and we have not time , actum agere . these reasons also of the point had been given , would the time have permitted . . that there might be nothing of encouragement wanting to obedience , or of discouragement to disobedience , god would have the promises and threatnings as clear in the same law as a rule of judgment ; as the precepts and prohibitions are in it , as a rule of obedience , that man might obey having respect unto the recompence of the reward ; and perswaded by the terrours of the lord beware of disobedience . . that there might remain nothing of pretext or excuse to those who walking not according to the precepts and prohibitions of the law of god as a rule of obedience shall be sentenc●d according to the promises and threatnings of it as a rule of judgment to lose the rewards promised , and incurre the punishments threa●ned . they cannot say , if we had known , our disobedience should have been so sadly attended with the depriving of so great rewards , and inflicting of so great punishments , we would have obeyed , when the promises and threatnings are as clear in the same law of god as the precepts and prohibi●ions . . because , as man cannot obey or disobey god but in relation to a law ; so neither can god judg man , obeying , or disobeying , but in relation to a law . as man ( as before you heard ) might have been subject to god as supreme lord , not obedient to him as rectour without law , so proportionably god as supreme lord could have disposed of ; he could not as rectour judg man without law , nor judg him according to any other law , than what 's the rule of his obedience : for , this would be no more judiciary then , but as much arbitrary as the other . the point now sufficiently clear'd and confirm'd , i come at length to vse and application . . to all in general . . information . . the power of god is the supreme power of the world . as legislation making of laws to determine the civil obedience , and disobedience , rewards and punishments of all the people in a nation , is an act of the supreme power ( wheresoever it reside ) of the nation : so to make laws to determine the spiritual obedience , and disobedience , and the temporal , spiritual , and eternal rewards and pu●ishments of all the people in the world , must needs be an act of the supreme power of the world . . how far the majesty of heaven is from aff●cting the exercise of an arbitrary power . the great potentates of the earth have it not , and would usurpe it . the great , and only po●entate of heaven and earth hath it , and will not use it , except in case of extraordinary concernment to his own glory , and his subjects good , and then as little , and with as speedy return as may be to methode , or course of law again , as in the case of bringing in the new covenant by christ . according to his absolute power and dominion he might ( had he pleased ) have disposed of , as he pleased his whole moral creature ; all man-kind to their last end of weale or woe , meerly as lord without any law ; but he was pleased to become law-giver , and according to his laws given , will dispose of them to their last end as rectour . . god will never judg the best works of meer men meritorious : god judgeth according to the nature of the things to be judged , and according to his own word the rule of judgment . that good works merit of their own nature , not many at this day of the papists will affirm ; and as such ( as you heard in the doctrine ) they are only capable of , do not merit a reward . that they merit by any ordination of god in his word , all the papists together , will never be able to prove . he hath indeed ordained that the least good work , even a cup of cold water to a disciple , shall have a reward : not that the greatest , even fire and faggot for the master christ himself , should merit a reward . he hath ordained christ should merit ; they should have , not deserve a reward . . in evil works , sinne and guilt differ . as the former noted against the papist , so this against the antinomian , who will have sinne and guilt to be one and the same thing , and tells us we can never have sound peace , till we see the filth and power , as well as the guilt of sinne , charged upon christ : but the difference between them i make out from the doctrine thus : . they have relation to the law under different considerations ; sinne as the rule of obedience , guilt as the rule of judgment . they have relation to different parts of the law ; sin to the precepts , and prohibitions , as a rule of obedience ; guilt to the threatnings as a rule of judgment . . they have different kinds of relation to the different parts of the law under those different considerations ; sinne , a relation of deformity to the precepts and prohibitions , whereto it is contrary as a rule of obedience to the precept ( if a sinne of omission , ) to the prohibition ( if of commission . ) guilt a relation of conformity , to the threatning whereto it 's agreeable , as a rule of judgment : for 't is agreeable to the threatning that sinne should deserve death in all , bind over unto death in all out of christ ; now divines make that desert of punishment the habitual , as this obligation unto it , the actual guilt of sinne . — so much for information . i come now to . several sorts of inference according to the several conditions of people mentioned in the doctrine . and . it calls for pity and prayer for those whether gentiles , or jews that never had christ , or not sufficiently proposed to them . there being none other name under heaven given amongst men , whereby they must be saved , neither is there salvation in any other , act . that if gentiles , god would make christ a light , yet further to enlighten them : that the people which sit in darkness , and see no light , may have this great light shining unto them , that the fulness of the gentiles may be so brought in . that if jews , god that first perswaded japhet to dwell in the tents of sem , would now perswade sem to dwell in the tents of japhet , that the children of israel may return and seek the lord their god , and david ( the sonne of david ) their king in these letter daies ; look unto him , whom they have pierced , and mourn , that his blood be no longer upon them , and their children , only , in the guilt of it ; but for the pardoning of the guilt of that blood shed , and all other their sinnes . this should we say for our elder sister , which hath no breasts in the day she is to be spoken for ; that the scatterings of the jews may be recollected and grafted in again . that whether gentiles , or jews , they may not have the law , and covenant of works gods rule of judging of them , with a judgment of condemnation , but the gospel , and covenant of grace , his rule of judging them with the judgment of absolution and salvation . . it should speak terrour to those amongst us that will not obey the gospel-positive of faith enjoyned them , but will reject christ in the gospel sufficiently proposed to them . . they shall be judged with the infidel heathen for transgressing the law of works , written in their hearts , have the way to the tree of life armed against them with a flaming sword in the hand of an angel waving this way , and that way . . above these , with the unbeliving jew for transgressing the law written in tables ; have that law executed upon them with more of thunder , and lightning , and blackness , and darkness , and tempest , than it was promulgate and publish't with : for if so terrible were the promulgation , that moses himself , who was out of the reach and gun-shot of the curse of this law , exceedingly feared , and quaked , how much more dismall , and dreadfull must be the execution of it upon those souls that fall under it ? . above both these , with that wrath peculiar to them for rejecting christ so sufficiently , so much , and often , plainly , and powerfully proposed to , and pressed upon them in the preaching of the gospel . heb. . , . — . . wrath so great , that to describe it , peter is put to the like artifice , as the painter , who being to draw so mournfull a face , as his art could not reach to the exact limning of , drew a shadow before it , giving leave to mens fancies to help out , and supply , where his art was defective , and came short : so the apostle , pet. . . draws ( as 't were ) the curtain of this interogation , ( what shall be the end of them that obey not the gospel of god ? ) before the hideous and deformed face of hell , giving men leave to lose themselves ( as himself seems to be lost ) in the consideration of the thick darkness of it . for as the love of god , eph. . . so his wrath too , passeth knowledg . as neither eye hath seen , nor ear heard , neither have entred into the heart of man , the good things which god hath prepar'd for them that love him ; none can conceive heaven so heavenly , as indeed they will find it , who shall be received into those glorious mansions : so neither hath eye seen , nor ear heard , neither have entred into the heart of man the evil things , which god hath prepar'd for those that do not love him , and obey his gospel : none can conceive hell so hellish , as indeed they will find it , when thrust into that utter darkness . now if the lord should by this thunder clap please to awaken any among us out of their carnal security , after christ , and faith , let them take this one ( since the time will give leave but for one ) special direction : let them attend upon a gospel-ministry , be much in hearing and meditating upon gospel-pomises ; such must not think to bring faith to , but suck it from a promise : the same gospel-promise that conveyes from god the nature of a title to faith , conveyes also the grace of faith unto men : that ( saith the apostle , rom. . . is the word of faith , which we preach : not only as the object of faith about which it is conversant , or precept of faith by which it is commanded , but also the instrumental meanes of faith by which it is conveyed . . and lastly , it speaks to those that by gospel-faith have closed with christ ; first , it speaks comfort to such : your faith though in relation to the precept as a rule of duty , a legally imperfect obedience , is in relation to the promise as a rule of judgment , a gospel perfect title , your perfect title to the righteousness of christ ; your perfect title to heaven and glory . there is no condemnation to you being in him , rom. . . shall be none to you , believing on him , joh. . . he had nothing of his own to be condemned for ; nothing of his own to be acquitted from ; he was condemned to pay your debt , as your surety , and therefore you cannot be condemned too . he was acquitted from it , being paid as your surety , and therefore you cannot but be acquitted ●oo . he appear'd the first time with your sinne to h●s condemnation ; he shall appear the second t●me without your sinne unto your salvat●on , heb. . when he shall be revealed in flaming fi●e taking vengeance on them that know not god , and that obey not the gospel of our lord jesus ●hrist , he shall come to be glorified in his saints , and to be admired in all you that believe , thes. . , . when others trembling , and confounded shall hear , depart ye cursed into ●verlasting fire , prepared for the devil and his angels , according to the threatning ; you rejoycing , and exceeding glad shall hear , come ye blessed of my father , inherit the kingdom prepared for you from the foundation of the world , according to p●omise . secondly , it bespeaks obedience from such : too too many that pretend highest to faith , and christ , do not so speak and so do ; but carry it , as if they had one law for the rule of their obedience , and expected another for the rule of gods judgment ; nay , so divide in their obedience , as if they had one law to speak , and an other to do by , one rule of talking , and anoth●r rule of wa●king , talk of the light of grace , but walk below the light of nature ; speak according to the gospel the law of faith , but do after their own hearts lust . do you so speak , and so do , and so think you ought , so to speak , and so to do , as those that shall be judged , &c. think not that christ hath redeem'd you from the guilt of your sinnes , that ye should wallow in the filth , and serve in the power of your sinnes : think not that those sins should be with you upon the th●one , that were with christ upon the cross ; that those sins should be matter of carnal and sensual pleasure , and satisfaction to you , that were of so much soul-trouble and sorrow unto jesus christ , when but imputed to him ; when really inherent in your souls . think , ye ought no longer study how to gratifie , and how to satisfie , but how to mortifie , and how to crucifie them . think nothing less then the very death of those sinnes ought to satisfie you , which nothing less would satisfie , and satisfie for , than the precious death of the lord jesus christ . think , and know that same god , by that same law whereby he hath requir'd your faith , hath requir'd your obedience , as fruit and evidence of your ●aith ; that you should justifie that faith by your works , which justifieth you without your works : that being by f●i●h heirs of the kingdom , ye ought by obedience to walk as hei●s , and towards the possession of it . here are many can tell you ye must go a right way to take possession according to a right title . so speak ye , &c. walk every way worthy your freedom from the thr●atned penalties , and your title to the promised rewards of this law . i had prepar●d nothing for my brethren of the ministry , conceiving none would have been present on this preparation day to the sabboth ; but seeing , beyond expectation , the faces of so very many here , i shall by gods assistance adventure a word to them also . if it be so , that the same law of god is the rule of mans obedience and gods judgment , let ministers preach it as such — some on the one hand , preach the law of god as the rule of mans obedience , too little , and too much as the rule of gods judgment . and even here some the promised rewards of it , the bliss , and happiness of heaven , and glory too much , and the threatned punishments of it the misery , and wretchedness of death and hell too little : others the punishments threatned too much , and the rewards promised too little . some on the other hand preach the law of god too little as the rule of gods judgment , and too much as the rule of mans obedience : and here some moral precepts too much , and gospel-positives too little , and thereupon hear legall preachers ; others moral-precepts too little , and gospel-positives too much , and thereupon hear antinomian preachers . satan hath two great designes afoot at this day ; the one to dash in pieces moral-precepts against gospel-positives , and this he is carrying on by the an●inomian ; the other to dash in pieces gospel-positives against moral-precepts , and this he is carrying on by the papist and socinian . the ministers of the gospel must set themselves to counterwork satan ●n both these designes . and this shall we do if we preach the law of god , as the rule of mans obed●ence and gods judgment in their due measure , one as well as another , and in their sweet agreement one with another , and especially if we take heed to square our own lives accordingly . so to speak , and so to do . special application to the special occasion : let it be so with the gods on earth too : let the same law of man be the rule of mens civil obedience , and the civil magistrates judgment . let not men be required obedience according to law , and proceeded with in judgment according to will and pleasure , besides , and against law . deut. . . thou shalt not wrest judgment . the word in the original rendred wrest , is sometimes used in a general sense for retching or stretching of a thing into another posture then it was in . josh ▪ . joshuah dr●w not his hand back {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} wherewith he str●tched , or which he stretched out with the spear : and so it signifies not only the wrenching or wresting of a straight thing to make it crooked , but of a crooked thing also to make it straight . and this general sense hath it's special application to judges respectively , whether of law or fact : of law thus : let them not in judgment make the law a lesbian rule , wrest , or crook the straight rule of the law , to give countenance to crooked , or discountenance to straight matters of fact ; for this would be their wresting of judgment , wresting of the law their rule of judgment . for judges of fact thus : let not them strengthen crooked matters of fact to receive countenance , or crook straight matters of fact to receive discountenance from the straight rul● of the law : for this is their wresting of judgment . sometimes the word is taken in special sense , for bending or bowing of straight thing to make it crooked , as gen. . . {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} he bowed his shoulder . and more especially , ezek. . where {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} a word of the same original rendred by our translators , the rod : schyndler renders inclinans , and interprets detorquens , perve●tens rectum , the wrester or perverter of that which is right flourished ; an interpretation much countenanced by that which follows , ver. . violence is risen up {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} into a rod of wickedness . and in this special sense hath its general application to judges both of law and fact : let neither the one , nor the other , call evil good , or good evil , a distorted or crooked , straight , or straight crooked : for that 's no less a crooked judgment , that judgeth crooked straight , than that which ju●geth straight crooked : because no less contrary to the law the right rule , which as it discovers straight or crooked , right or wrong matter of fact as a rule of obedience , so as a rule of judgment it discovers straigh● or crooked , right or wrong judgment . for , rectum est in●ex sui & o●liqui . nor is their judgment thus wrested only , if they judg straight crooked , or crooked straight , but also ( though in less measure ) if they judg streight less streight ; or crooked less crooked then evidence of law , and fact discover it to be . this being contrary to the law as the rule of judgment for measure and degree , as the other for nature and kinds : and therefore it follows vers. . that which is altogether just shalt thou do . in the original justice , justice : justice for measure and degree , as well as kind and nature . for motives to this dvty . consider . your office — a judg is to be the soul of the law ; and therefore heard among the romanes , jus animatum , animated right , and among the grecians , {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} living law . gods own law , is but a dead rule without gods enlivening of it : much more are mens laws , without these earthly gods quickning of them . some talk much of one other law to be made for execution of all the rest . but who then shall look to the execution of that ? execution is indeed the life of the law , but the judg must be the soul to impart it ; and that according to the mind of the l●w , otherwise he doth not execute law , but lust , not quicken , but kill it , is the executioner of the law , as the hangman of the thief . good laws are the foundations of a nation , as many interpret those places , psal. . . — ▪ . good judges are the corner-stones in those foundations , as most interpret that place zech. . . now the corner-stone doth not undermine and weaken , but stablish and strengthen the foundation ; doth not as those corrupt judges , psal. . put these foundations out of , but into course , keeps them upon their legs , and makes them run also : currat lex . . your dialect . you stile your orders of court-rules : i suppose not only nor so much because regulae regulantes , rules ruling of men , as because regulae regulatae , rules ruled by law ; as in the like phraseology you call judged cases ruled cases ; one would think in imitation of god , who stiles his laws judgments , because rules of his judgment . now remember the text : so speak ye , and so do . let your deeds answer your dialect . . what god hath done for our laws . men have thrust sore at them that they might fall , but god hath holden them up , made them know a protector in more senses than one , own his highness not only a protector of the people , but of themselves , the laws too . a protector of the p●ople of the land , according to the laws of the land . god hath by him delivered them from a storm , a very whirle wind of giddy men . let not our judges suffer them to lay becalmed , and wind-bound for want of due execution . the fourth and fifth motive i shall off●r out of act. . . god shall smite thee thou whited wall : for sittest thou to judg me after the law , and commandest me to be smitten contrary to the law ? . 't is arch-hypocrisie to do otherwise . — thou whited-wall , &c. the periphrasis and circumlocution of an hypocrite , as you will see , if you compare it with the like expressions , ezek . . mat. . . and seneca , as if he had commented upon the words ; miseri sunt , sordidi , turpes , & ad similitudi●em parietum suorum extrinsecus culti . as to pretend to carry all in sacred affaires according to the law of god , and do the contrary is church-hypocrisie ; so to pretend to carry all in civil affaires according to the law of the land , and do the contrary is state-hypocrisie ; hypocrisie towards the law , like that of judas towards christ kissing and crucifying together : for as execution is the life , so non-execution the death ; contrary-execution the most shamefull , and reproachfull death of the law , even the crucifying of it . . god will require a severe acoount of it . god shall smite thee thou whited wall . thinkest thou oh man ! that thus corruptly judgest , that thou shalt escape the righteous judgment of god ? no , god will judg those according to his rule of judgment , his law , that judg others contrary to their rule of judgment , the law of the land : and that more severely then the open professed tyrants of the world , that carry all according to their own will and pleasure , and pretend no oth●r . for as in church-hypocrites , their dissembled sanctity is double sin : so in such state-hypocrites , their dissembled justice is doubled injustice , against both men and laws , and shall accordingly be dealt with by god , job . . . the hypocrites in heart ( of what kind soever ) heap up wrath . those that corrupt wholsome laws into poison , turn judgment and righteousness into worme-wood , gall , and hemlock , amos . — . the lord will feed them with worme-wood , and give them water of gall to drink , jer. . so speak ye therefore , and so do in your judgment , as those that shall be judged by the perfect law of liberty . . and lastly , if judges do not according to the law as a rule of judgment , 't is to be fear'd , people will not long do according to the law as a rule of obedience : partly because of their example , as ill humours fall down from the head , and corrupt the body . no wonder if people think they may be as bold with their part of the law , as rulers are with theirs : if these call wrong right , and right wrong , they even teach these to call evil good , and good evil , vice vertue , and vertue vice . qualis praetor , was one of the three p● whereby charles the fifth would judg , qualis res publica : and partly because in law promises of rewards , and threats of penalties the rule of judgment are mound and fence to precepts of duty , and prohibitions of sins the rule of obedience , and if those be thrown down , no marvell if these be trampled and trod under foot . some few ( may be ) will do well , virtutis amore , though vertue be not rewarded , nay though it be punish't and vice rewarded : but very few , none in comparison , mic. . , , . directions : if judges would now exactly observe the law as their rule of judgment , let them . be well skil'd in the laws . psal. . be inst●ucted or learned , ye judges of the earth . the great judg of heaven and earth , is without study and learning exactly skil'd in his law , for observance of it as his rule of judgment . that the judges of the earth may observe the law of the land as their rule of judgment , they must by instruction and study be learned in it . and therefore austin saies , ignorantia judicis ●st calamitas innocentis . a private mans ignorance is his private blemish and mischief , but a judges ignorance , a publick calamity . an artificer cannot work by a rule , nor a pilot sail by a compass , he doth not understand : no more can a judg proceed in judicature according to a law he is not skil'd in . besides , how will a cunning lawyer work upon such an advantage ? what false glosses wil he put upon truth of law ? what a mist of subtilty will he cast before the eyes of an ignorant though otherwise well-meaning judg ? so that if he that with job , job . . should be eyes to the blind , be himself blind also , they are both like to fall into the ditch . . vse able and diligent disquisition of the cause . deut. , . both the men between whom the controversie is shall stand befo●e the lord ; and the judges shall make diligent inquisition . judges must know the cause , as well as the l●w before they can judg the cause according to law . for this cause were counsellors and ( as some say ) judges of old called cognitores , knowers ( as prophets ) videntes , seers , chron. . . and seneca in his tragedes bids si judicas cognosce : before you judg , know what ye judg . truth in these cases , whether civil or criminal ( as in natural inquiries ) in alto latet involuta , lies often deep and dark and requires skill and paines to boy it up , and bring it to light : insomuch that the wisest judges , and some are excellent crafts-masters at it , as we need not go farre for a president , are sometimes put to use every clew they have to wind themselves out of a labyrinth of subtilty — perplexed iniquity . put questions , poize testimonies , weigh reasons , compare evidenc●s , consider circumstances and the like : in such a case 't was , that judg job saies , job . . the cause he knew not , he searcht out . the cause he knew not at first sight , he searcht into it till he searcht it out : and so must all that will judg of a cause according to law . . make a right application of the fact to the law , or rather of the law to the fact . this holds as in foro interiori , in the private judgment of conscience , so in foro exteriori , in the publique judgment of authority too . an artificer that understands both his rule and his work , may work wrong by a right rule if he make not a right application of his rule to his work . so a judg who is never so well acquainted with the law the rule of judgment , and with the cause too , the matter to be judg'd , may yet erre in judgment , if he make not a due application of the rule of law to the matter of fact ; as david saies those his judges did , psal. . . 't is to be supposed they knew both the law and his actions well enough : for he chargeth them not with ignorance of either , and they seem to make application of the known law to his known actions ; for he sets them forth with the emblems of justice ; scales in their hands , and the application , and use of these scales too : for he sayes they weighed , but not right . they weighed violence , or wrong in their hands else they could never have burden'd his just actions with the censure of rebellion , and treason . . beware of partiality : make your law as god his a law of liberty , and judg according to yours , as god to his , freely and without respect of persons , levit. . . thou shalt not respect the person of the poor , nor honour the person of the mighty , and this , that thou do no vnrighteousnesse in judgment . private persons and publick persons , out of the publick case of iudicature may and ought respect persons , according to their ranks and conditions , ver. of that chap. and the quakers ( who reject the fifth , as the papist the second commandement out of the dialogue ) may as soon prove poor out of the case of judicature , not to be respected with the respect of pity and charity , as others not with civil honour and regard according to their respective ranks and conditions . but in the case of judicature there 's not any respect to be had to any person upon any foreign or by consideration of rich , or poor , high , or low , small , or great , mean , or mighty , nor indeed godly , or vngodly ; but onely according to the intrinsecall merits of the cause , and that least there be unrighteousnes in judgment ; persons regarded more then laws . as an artificer that staring and gazing on the persons he works for , when his eye should be upon his rule , and work is like to fault in his work ; so a judg that 's partiall in his respect to the persons to be judg'd is in the ready way to erre in judgment , and be partiall in the law : mat. . . where the margin renders , ye have accepted faces , or persons , the text reads ye have been partiall in the law . {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} . . beware of gifts . qui accipit beneficium v●ndit libertatem . he that receiveth a gift sels his liberty . seneca makes it a generall rule . it ha's ( if anywhere ) its special truth and force in our case . the judg that receiveth a gift sels his own liberty , and the laws together ; the liberty of his eyes to see , and the liberty of his tongue to sentence according to the liberty of the law . deut. . . a gift doth blind the eyes of the wise , and pervert the words of the righteous though otherwise a wise judg , 't will so blind his eyes , as to disenable him look either into rule or cause ; and though otherwise a righteous judg , so pervert his words , as to disenable him pass sentence accordingly , if he could look into them . but though his private personal judgment were according to rule , his publique authoritative sentence would be against it . . take heed of passion ; that they neither bring their heates with them to , nor heat themselves on the bench . gifts will make a wise judg blind ; anger will make him mad , ira furor bre●is est . now a mad man is little less like to walk according to rule then a blind ; prov. . . he that is soon angry deals foolishly : that therefore of mine apostle , chap. . vers. ● . is good counsell hereto ; be swift to hear , slow to speak , slow to wrath : and for good reason to our purpose , vers. . for the wrath of man worketh not the righteousness of god . the judg that is ( as joseph saies herod was ) irae servus , slave to his anger , will be ( as he saith herod was ) legis dominus lord of the law ; and a tyrannicall lord too ; rule it , not be rul'd by it . . and lastly , and above all the rest , get hearts cast into the mould and frame of the law of god . this will make the gods on the earth be and do like the god of heaven : because like his law that 's so like him as coming out of his mouth . greatness and goodness cannot be severed in god ; they may be , and too often are in men . but when they are not only psal. . . children of the most high bearing the image of his power and authority , but of the most holy too , bearing the image of his purity and holiness , they will then be sure in their measures to act like the most high and holy one ; more especially get hearts awed with the fear , and affected with the love of the law of god , those two qualifications of jethro's judges , exod. . . he that feareth god will fear , if ignorant of the laws to fill up a place he doth not suffice for ; and if skil'd in them , he will make diligent inquisition into the fact , a right application of the rule to it , beware of partiality , gifts , and passion . therefore is this jehoshaphats first direction to his judges ch●on . . . let the fear of the lord be upon you . and the unjust judg his not regarding men ( what he did to them ) had the want of the fear of god at the bottom of it , luk. . . and for love of the law of god , it will first hold mens hearts close to the law of god , and then to the law of the land , so farre as according to the law of god : and further , i neither exhort , nor direct . to the jurors , who have here for some years past been recovering in their credit ; that they may do so still , one word more than what hath been said to them : do not any one of you exod. . . follow a multitude , much less a multitude of you follow some one crafty companion to do evil ; least of all lead in it . so speak ye , and especially so swear , and do as they that shall be judged . to the council learned in the law . if i understand your work , 't is only so to open , and argue your clyents cause , that judges both of law and fact may be able to make out a right judgment of it . speak not ye in a cause to pervert judgment , exo. . . go not about to get the opinion of good lawyers by corrupting good laws : consider , you plead not only before earthly gods , and those wise as an angel of god , but before the god of heaven too , who is with them in the judgment . dare not be unrighteous advocates for any clyent before him on earth , before whom you need a righteous advocate in heaven , less able to plead your own cause there , than the simplest of your clyents his here . so speak ye , and so do , that the storm fall not yet upon the lawyers , that 's now off from the laws . to the witnesses . do not you exod. . . raise a false report ; or if raised by others , do not bear it in false witness , to prevent or pervert right judgment . jesus christ the faithfull and true witness , will be now witness , and hereafter judg of your fals-witness , and make you true witnesses against your selves , who are fals-witnesses for , or against others . so speak ye , and all others not spoken to , and so do , at this assize , as they that at the general assize shall be judged by the law of liberty . errata . page . l. . r. according to . ib. . r. better clearing . p. . l. . r. i● the p . l. . r. our god . ib. l. . r. manner or . p. . l. . r. never v●uchsafed . p. . l. . r. matter of . p. . l. . for {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} finis . notes, typically marginal, from the original text notes for div a e- coherence . division . e●plica●ion . a brief paraphrase . doctrine . confirmation . a aug. lib. . de ●●v . 〈◊〉 c●p . . b orig cap. . ad rom. c ambr. in psal d aust ubi supra & hom. . in apoc. prope med. amplification . quere i. answ. quere ii. answ. object . answ. . reas. vuse . . information . cor. . . {non-roman} {non-roman} {non-roman} {non-roman} {non-roman} motiv . directions . whence their dayes cannot be expected to be long in the land . reliquiæ spelmannianæ the posthumous works of sir henry spelman, kt., relating to the laws and antiquities of england : publish'd from the original manuscripts : with the life of the author. spelman, henry, sir, ?- . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) reliquiæ spelmannianæ the posthumous works of sir henry spelman, kt., relating to the laws and antiquities of england : publish'd from the original manuscripts : with the life of the author. spelman, henry, sir, ?- . gibson, edmund, - . [ ], , [ ] p. : ill., folded geneal. tables, port. printed at the theater for awnsham and john churchill ..., oxford : . dedication signed: edmund gibson. issued in as part of the english works of sir henry spelman, publish'd in his life-time. reproduction of original in huntington library. imperfect: port. and ill. lacking in filmed copy. includes bibliographical references. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng spelman, henry, -- sir, ?- . law -- england. ecclesiastical law -- england. great britain -- antiquities. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion reliquiae spelmannianae . the posthumous works of sir henry spelman kt. relating to the laws and antiquities of england . publish'd from the original manuscripts . with the life of the author . sine dubio , domus jurisconsulti est totius oraculum civitatis . cicero . oxford , printed at the theater for awnsham and john churchill at the black-swan in pater-noster-row , london . . imprimatur , joh . meare vice-can . oxon . jan. . . to the most reverend father in god thomas lord arch-bishop of canterbury , primate of all england and metropolitan , and one of his majesty's most honourable privy council . my lord , i beg leave to lay before your grace these posthumous discourses of sir henry spelman ; promising them a favourable reception , both for their own worth , and for the sake of their author . he was a person endow'd with those excellent qualities , which never fail to recommend others to your grace's good opinion and esteem : a gentleman of great learning , and a hearty promoter and encourager of it : in his temper calm and sedate ; and in his writings , grave and inoffensive : a true lover of the establisht church , and a zealous maintainer of her rights and privileges . in which respect , the clergy of this nation were more particularly engag'd to him ; because being a lay-man , and so not lyable to the suspicion of prejudice or interest , his reasonings carry'd in them a greater weight and authority , than if they had come from one of their own order . i might add , as some sort of excuse for this trouble , that he had the honour to be particularly respected by two of your grace's predecessors ; and some of his posthumous works , by a third . arch-bishop abbot and his immediate successor were the chief encouragers of the first volume of his councils : and after his death , the second part of his glossary was publisht by the procurement of arch-bishop sheldon . so that these papers have a kind of hereditary right to your grace's protection . all the share that i have in this work , is the handing it into the world : and to make the first present to your grace , would be no more than a decent regard to the eminence of your station ; though i had no particular obligation to do it . but in my circumstances , i should think my self very ungrateful , if enjoying so much happiness under your grace's patronage , i should omit any opportunity of expressing my thankfulness for it . especially , since such small acknowledgements as this , are the only returns that i can ever hope to make for the encouragement , which you daily afford to your grace's most obliged and most dutiful servant edmund gibson . the preface . i shall not make any apologie for the publication of these treatises : they seem'd to me to be very useful towards a right understanding of the laws and antiquities of england ; and i hope they will appear so to others too . nor need i endeavour to recommend them to the world , any otherwise than by shewing them to be the genuine labours of sir h. spelman , whose learning , accuracy , and integrity are sufficiently known . the first of them , concerning feuds and tenures in england , was written in the year . and is printed from a fair copy in the bodleian library , corrected with sir henry spelman's own hand . the occasion of writing it , was the great case of defective titles in ireland ; as may be gathered in some measure from the hints , that our author has given us ; but is much more evident from the case it self , printed afterwards by order of thomas viscount wentworth the then lord deputie . the grounds thereof ( with the pleadings and resolutions , so far as they concern the original of tenures ) were , in short , thus : the several mannours and estates within the counties of roscomon , sligo , mayo and gallway , in the kingdom of ireland , being unsettl d as to their titles ; king james i. by commission under the great seal dated the d . day of march in the th . year of his reign , did authorize certain commissioners , by letters patents to make grants of the said lands and mannours to the respective owners . whereupon , several letters patents to that effect , passed under his majesties great seal , by virtue of the said commission , for the strengthening of titles that might otherwise seem defective . and afterwards , in the reign of king charles i. upon an enquirie into his majestie 's title to the countie of mayo , there was an act of state publisht , commanding all those who held any lands in that county by letters patents from the crown , to produce them or the enrollment thereof before the lord deputie and council , by a certain day . to the end that they might be secur'd in the quiet possession of their estates , in case the said letters were allow'd by that board to be good and effectual in law. in pursuance of this order , several letters patents were produc'd , and particularly the lord viscount dillon's ; which last , upon the perusal and consideration thereof by his majestie 's council , were thought to be void in law. and therefore it was order'd by the lord deputie and council , that the doubt arising upon the letters patents should be drawn up into a case , and that case to be openly argu'd at the council-board . the case was drawn up in these words : king james by commission under the great seal dated the second day of march in the fourth year of his reign , did authorize certain commissioners to grant the mannour of dale , by letters patents under the great seal of this kingdom , to a. and his heirs , and there is no direction given in the said commission touching the tenure to be reserv'd . — there are letters patents by colour of the said commission pass'd unto a. and his heirs , to hold by knights ▪ service , as of his majesties castle of dublin . here , it was agreed on all hands ▪ that the letters patents were void as to the tenure , and that the commissioners had acted beyond their commission in reserving a mean tenure , to the prejudice of the king ; when they ought either to have reserv'd an express tenure by knight's service in capite , or have mention'd no tenure at all , but have left the law to imply a tenure in capite . the question therefore was , whether the deficiency of the tenure did so far affect the grant , as wholly to destroy the letters patents ? or , whether the letters patents might not be good as to the land , and void only as to the tenure ? the case was argu'd several days by counsel on both sides ; and was afterwards deliver'd up to the judges , who were requir'd by the lord deputie and council , to consider of it and to return their resolution . but upon private conference , not agreeing in their opinions , it was thought necessary for publick satisfaction to have it argu'd solemnly by them all : which was accordingly done . and when it came to be debated , whether the reservation of a tenure , so different from that intended and warranted by the commission , could make void the whole grant ; this happen'd to lead them to a more general enquirie , what the reservation of a tenure is to the grant ? whether it be a part of the grant , and the modus concessionis , or whether it be a distinct thing , and aliud from the grant ? for ( so the printed case represents their opinion ) if the reservation of the tenure and the grant of the land , be aliud & aliud , two distinct things , in the consideration of the whole grant made , and the authority given by the said commission for the making thereof ; then the patent may be void as to the tenure , and yet good for the grant of the land. but if the reservation of the tenure be incident unto the authority and included within it , and the reservation of the tenure and the grant of the land make up but one entire grant , so that the one is a part of the other , and the reservation of the tenure be modus concessionis ; then the granting of the land , reserving a diverse or contrary tenure to that which their [ nude ] authority did warrant them to reserve , is a doing of idem alio modo , and so the whole act is void . they who pleaded for the validity of the letters patents as to the lands , and their being void only as to the tenure ; urg'd , among other arguments , that tenures in capite were brought into england by the conquest , but grants were by the common-law ; and therefore grants being more ancient than tenures , the tenure must of necessity be aliud from the thing granted . and to prove that this tenure came in with the conqueror , they cited mr. selden in his spicileg ▪ ad eadmerum , p. . where he hath that out of bracton de acquir . rerum dominio . b. . forinsecum servitium dicitur regale servitium quia spectat ad dominum regem & non ad alium , & secundum quod in conquestu fuit adinventum . but this argument and the authority were both over-ruld ; and it was affirm'd , that tenures were not brought into england by the conqueror , but were common among the saxons . their answer to mr. selden's opinion , with the reasons upon which they grounded their position , i will transcribe at large from the printed case ; the book being very scarce , and this the only point wherein sir henry spelman is concern'd . it was answered that mr. selden in that place does barely recite the words of bracton , not delivering any opinion of his own . for in that book cited , pag. . and in his titles of honour , the last edition . p. . we find that he was of another opinion , and that this tenure was in use in england in the times of the saxons . what were those thani majores , or thani regis among the saxons ? but the kings immediate tenants of lands , which they held by personal service , as of the kings person by grand serjeanty , or knights-service in capite . the land so held , was in those times called thain-land , as land holden in socage was called reveland , so frequently in dooms-day : haec terra fuit terra regis edwardi thainland , sed postea conversa est in reveland . cokes instit . sect. . after some years that followed the coming of the normans , the title of thane grew out of use , and that of baron and barony succeeded for thane and thain-land . whereby we may understand the true and original reason , of that which we have in the lord cromwels case , . coke . that every barony of ancient time was held by grand serjeanty ; by that tenure were the thain-lands held in the time of the saxons , and those thain-lands were the same that were after called baronies . 't is true , the possessions of bishops and abbots were first made subject to knights-service in capite by william the conquerour , in the fourth year of his reign , for their lands were held in the times of the saxons : in pura & perpetua eleemosyna , free , ab omni servitio saeculari . but he then turned their possessions into baronies , and so made them barons of the kingdom by tenure , so that as to them , this tenure and service may be said to be in conquestu adinventum . but the thain-lands were held by that tenure before . as the kings thane was a tenant in capite , so the thanus mediocris or middle thane , was only a tenant by knights-service , that either held of a mean lord and not immediately of the king , or at the least of the king as of an honour or mannour , and not in capite . what was that trinoda necessitas , which so often occurs in the grant of the saxon kings , under this form. exceptisistis tribus expeditione , arcis & pontis exstructione ? ( see it in a charter of king etbeldred in the preface to cokes . report , &c. ) but that which was after expressed by salvo forinseco : bracton lib. . cap. . & . . edw. . gard . . ass . . selden analect . anglobrit . . and therefore it was said that sir henry spelman was mistaken , who in his glossary verbo feudum , refers the original of feuds in england to the norman conquest . it is most manifest , that capite tenures , tenures by knights-service , tenures in socage , frank-almoigne , &c. were frequent in the times of the saxons . and if we will believe what is cited out of an old french customary , in a ms. treatise of the antiquity of tenures in england , which is in many mens hands , all those tenures were in use long before the saxons , even in the times of the britains , there it is said ▪ the first british king divided britain into four parts , and gave one part to the arch-flamines to pray for him and his posterity . a second part he gave to his earls and nobility to do him knights-service . a third he divided among husbandmen , to hold of him in socage . the fourth part he gave to mechanical persons to hold in burgage . but that testimony was wav'd , there being little certainty or truth in the british story before the times of caesar . neither would they make use of that , which we are taught by william roville of alenzon in his preface to the grand customier of normandy , that all those customs ( among which these tenures are ) were first brought into normandy out of england by edward the confessor . besides , that which hath been said , we find feuds both the name and thing in the laws of those times , among the laws of edward the confessor , cap. . where it is thus provided , debent enim universi liberi homines , & secundum feodum suum , & secundum tenementa sua , arma habere , & illa semper prompta conservare , ad tuitionem regni , & servitium dominorum suorum , &c. lambard . archaionom . . this law was after confirmed by william the conqueror , vid. cokes instit . sect. . as these tenures were common in those times , so were all the fruits of them , homage , fealty , escuage , reliefs , wardships . for releifs , we have full testimony in the reliefs of their earls and thanes , for which see the laws of king canutus , cap. , & . the laws of edward the confessor , cap. de heterochiis , and what out of the book of dooms-day coke hath in his instit . sect. . camden in bark-shire . selden in eadmer . p. . that wardships were then in use , and not brought in by the normans , as camden in his britt . . nor by hen. iii. as randolph higden in his polichronicon ; and others ( not understanding him ) would perswade . vid. seldens notes on fortescue . . among the priviledges granted by edward the confessor to the cinque-ports , we meet with this , that their heirs shall shall not be in ward . lambards perambulat . of kent . . and in the customs of kent , which are in the magna charta of tottels edition , and in lambards perambulation , there is a rule for the wardship of the heir in gavelkind , and that he shall not be marryed by the lord. and those customs say of themselves , that they were devant le conquest , & en le conquest . for the antiquity of wardships in england and scotland , see also hect. boet. lib. . buchanan rerum scot. lib. . and the laws of malcolm ii. which prove the antiquity of wardships in scotland , and therefore in england before the norman conquest ; for in those times it is probable the laws of both nations did not much differ , as for the times after , it appears they did not , by comparing their regiam majestatem , and our glanvil . neither is the bare conjecture of sir henry spelman sufficient , to take away the force of those laws . vid. spelman . glossar . verbo feudum . upon this ( amongst other reasons ) they did conclude , that upon consideration of the authority given , and grant thereupon made , the reservation of the tenure cannot be said to be aliud . so. a separate and distinct thing from the authority of granting the land , but rather included within it . and that the reservation of the tenure , though it be not ipsa concessio , the grant it self , yet it is modus concessionis , and a part of the grant ; and that therefore the authority being not pursued in that , the whole grant is void . these were their arguments for tenures among the saxons ; as they are set down in the case it self , drawn up and printed by order of the lord deputie . sir henry spelman has severally consider'd both the truth and force of them ; not strictly confining himself to their reasons and reflections , but taking occasion from thence to write a very elaborate treatise of the nature and original of feuds and tenures . the two discourses , of the ancient government of england , and of parliaments , are both of them publisht from the original manuscripts in the hands of mr. charles spelman of congham in norfolk , son of sir john spelman , and grandson to sir henry . that , concerning the original of the four terms , was publisht in the year . from a very uncorrect and imperfect copy , which probably had been taken , when the author first wrote the discourse . the original manuscript ( with very many additions and corrections , that sir henry afterwards made in it ) is preserv'd in the bodleian library ; from whence the work is now printed entire . the apology for arch-bishop abbot , by an unknown author , and the answer to it by sir henry spelman ; are in the pos●ession of mr. henry spelman ( son to mr. clement spelman , who was sir henry's youngest son ) both written with our author 's own hand . to this answer he refers us in his glossary ▪ under the title muta canum . the letters relating to the same subject , are in a collection of original papers and records , deliver'd to mr. wharton by arch-bishop sancroft , and now in the hands of mr. ch●●wel . the treatise of the original of testaments and wills , and his icenia , or the description of norfolk ▪ are both publisht from the author 's own copies , in the bodleian library . the latter of these is not so compleat , as he had intended to make it . the catalogue of the earls marshal of england , and the dissertation de milite , were evidently design'd for a part of his glossary ; as appears from the manner of the composition , and from several passages in them . but when the papers were deliver'd to sir william dugdale , for the publication of the second part of that work , these two ( it seems ) had been mislaid . the account of the earls marshal is ( i fear ) imperfect in some places ; but will however be of good use towards a more accurate catalogue of them . the succession of the family of sharnburn , is a peice of antiquity that was exceedingly valu'd by sir henry spelman ; as appears both from his recommendation , and from the use that he has made of it in some part of his works . having met with a copy in mr. ashmole's museum at oxford , i thought it might not be improper to publish it among his remains . the dialogue concerning the coin of the kingdom , and the catalogue of the places of the arch-bishops and bishops of this realm ; are in the possession of mr. charles spelman . the first is written in a hand not unlike sir henry spelman's , only somewhat less ; which ( if it was really his ) may have been occasion'd by his writing it while he was young . for it appears to have been compos'd in the . of elizabeth ; when sir henry was but about thirty three years of age . the catalogue was drawn up in the time of king james i. for the use of the then arch-bishop of canterbury ; as i gather from those words in the beginning , written in a different hand , pro domino archiepiscopo cantuar. i dare not positively affirm , that either of these is sir henry spelman's ; but the finding them among his other papers , and the accurate knowledge of our english affairs which appears in both , incline me to believe that he was really the author of them ; and for that reason , they are printed upon this occasion . this is all i have to say concerning the posthumous works of sir henry spelman ; which i was willing to make publick , for the author's reputation and the service of the world. the life of sir henry spelman kt. henry spelman was born at congham , a town in norfolk near lynn . he was descended from an ancient family of that name ; who , about henry the iii's ▪ time were seated in hampshire , but afterwards remov'd into suffolk , and from thence into norfolk , about . years since . his father's name was henry spelman esq as i learn from a pedigree of the family under sir henry's own hand ; and not john , as a late writer has told us . his mother was frances , daughter of william sanders of ewel in surrey esq . after his education at school , he was sent to trinity colledge in cambridge , before he was quite . years of age , and indeed ( as he himself complains ) before he was ripe for the university . he had not stay'd there two years and a half , but his father dy'd ; and he was call'd home to assist his mother in the management of the family . afterwards , when he came into the world , and betook himself to writing , and the study of our laws , he found the want of university education ; and condoles his misfortune in that particular , in a letter to his friend mr. richard carew . contrary to a perswasion , very common now adays , that philosophy , oratory , poetry , and the other exercises which take up the first four years in our universities , are altogether foreign to the business of lawyers ; and that the study of them is so much loss of time , to gentlemen design'd for that honourable profession . after he had continu'd at home about a twelve-month , he was sent to study the law at lincoln's-inn ; either with a design to practise it , or ( which is more likely ) as a necessary accomplishment of an english gentleman . there he stay'd almost three years ; but was then unhappily remov'd , when we may imagine he began to relish the law , and in some measure to conquer the difficulties of it . many years after , we find him complaining of his hard fortune , in the preface to his glossary : and he concludes his complaint with a character of the common-law , which i will here transcribe for the honour of the profession . excussit me interea è clientela sua ( speaking of the law ) gratiae , potestatis , dignitatis , immensaeque apud nos largitrix opulentiae : illa ( inquam ) vestitu simplici & inculto , sed jurium omnium municipalium ( absit dictis invidia ) nobilissima domina ; omni utpote justitia , moderamine , prudentia , sublimique acumine ( temere licet eam perstrinxerit hottomannus ) refertissima . he was about twenty years of age ; and retiring into the countrey , married the eldest daughter and coheir of john le strange , a gentleman of an ancient family in norfolk . by this match , he became guardian to sir hamon le strange ; during whose minority , he liv'd at hunstanton , ( the seat of that family , ) and was high sheriff of norfolk . by degrees , he begun to be taken notice of , for his great prudence and abilities ▪ and was accordingly , three several times , sent by the king into ireland upon publick business . at home , he was appointed one of the commissioners to enquire into the oppression of exacted fees , in all the courts and offices of england , as well ecclesiastical as civil ; which a late author calls a noble examination and full of justice . to this business he gave his constant attendance for many years together , with great integrity and application ; and the government was so sensible of his good services , that the council procur'd his majesties writt of privy seal for l. to be presented to him ; not as a full recompence ( for so they declar'd ) but only as an occasional remembrance , till they should have an opportunity of doing something for him , that might be a more suitable consideration for his diligence , in that and other publick affairs . this attendance made him neglect his own private business , to the great prejudice of his family ; as he himself seems to complain , in his preface to the glossary . and his eldest son ( sir john spelman ) represented to the privy councel , how much his father's estate had suffer'd by it ; appealing ( for a proof of his great pains therein ) to the knowledge of several of their lordships , to the journals of that commission , and to his papers and collections relating to the same . i cannot give any particular account , of the other publick services wherein he was employ'd . he was knighted by k. james , who had a particular esteem for him , as well on account of his known capacity for business , as his great learning in many kinds ; more especially in the laws and antiquities of our nation . these , for a good part of his life , he seems to have study'd for the service of his prince , and his own diversion ; but not with an eye to any particular design . when he was about . years of age , he resolv'd to draw his affairs into as narrow a compass as might be ; with a full design to bestow the remainder of his time among books and learned men. with this resolution he sold his stock , let his estate , quitted the countrey , and settl'd in london with his wife and family . his next business was ( as he himself tells us ) to get together all such books and manuscripts , as concern'd the subject of antiquities , whether foreign or domestick : for in these enquiries he had ever had a particular delight ; and now being in a good measure free'd from the daily disturbances he was before exposed to , it was natural for him to fall into a study , to which his own genius had always led him . it is likely , he had then a good understanding of the laws and customs of the kingdom ; i mean the modern part of them , such as is commonly us'd in the ordinary practice of it . but such a general knowledge could not satisfie a mind so curious , and a judgement so solid , as his appears to have been , in all his writings . these inclin'd him to search into the reasons and foundations of the law , which he knew were not to be learnt , but from the customs and histories of our nation in all ages ; nor these usages to be trac'd out , but by a strict examination of the most ancient records and manuscripts . and as his own inclination led him to this enquiry ; so , not troubling himself with the practice of the law , but content to live quietly upon his own estate , he was perfectly at leasure to pursue it . and indeed ( as the best things in this world are attended with inconveniences ) it is very much to the disadvantage of the law , that those of the long robe , who are best qualified to improve the knowledge of it from original records , are so much taken up with the business of their profession , that they have little time to bestow upon those matters . as on the other hand , men who are born to leasure and estates , however inclinable they may be to the more polite parts of learning , do seldom care to engage in a study , which at first sight seems to be so rough and tedious . thus , the one wants leasure , and the other resolution ; and so the monuments of our fore-fathers being neglected , we are depriv'd of a great deal of useful knowledge ▪ that might be drawn from them . it was the happiness of sir henry spelman ( and much more , of the english nation ) that he had both time and inclination to do it ; i mean , to examine the ancient laws and monuments , not only of our own , but also of most other northern kingdoms . particularly , he was very well versed in the old feudal law ; and has shewn us in a discourse upon that head , how most of the tenures here in england , have their foundation from thence . this near relation between their customs and our constitutions , made him many times marvel , that my lord cooke adorning our law with so many flowers of antiquity and foreign learning , should not turn aside into this field , from whence so many roots of our law have of old been taken and transplanted . and i wish ( so he goes on ) some worthy lawyer would read them diligently , and shew the several heads , from whence these of ours are taken . they beyond the seas , are not only diligent , but very curious in this kind ; but we are all for profit , taking what we find at market , without enquiring from whence it came . with this honest freedom does he censure his own times . not but then ( as well as now ) the studies to which he directs , were pursu'd and encourag'd by persons of the highest stations in the law ; and some of them were so far concern'd for the improvement of ancient learning , that they form'd themselves into a society of antiquaries for that purpose : as we learn from sir henry's introduction to his law-terms . with this design of understanding the foundation of our laws , ecclesiastical as well as civil ; he read over the fathers , councils , and as many of the middle-age historians as he could meet with , whether foreign or domestick , printed or manuscript . the roughness of style could not be very pleasing ; but that which chiefly discourag'd him , was the great number of strange and obsolete words ; which are very hard to be understood , and yet oftentimes are so considerable , that the meaning of the whole sentence depends upon them . however , he went forward ; and where he met with any such word , set it down in it's proper order ; with a distinct reference to the place : till by degrees he had collected a variety of instances , and by comparing the several passages where the same word occurr'd , was able to give a tolerable conjecture at the true signification . after he had made a considerable collection of this kind , and observ'd how by this means the reading of the old historians became every day more easie and pleasant ; he begun to digest his materials ; and from the several quotations , to draw a judgement of the strict acceptation of each word , in the respective ages wherein it was used . for he consider'd , that what had been a discouragement to him , would be so to others too ; and that a work of this nature , would remove one of the greatest difficulties in the reading of our old historians . but tho' a number of instances gave him good satisfaction , as to the several words ; yet finding that many of our laws since the conquest are drawn from the constitution of the saxons , and that many obsolete terms in our latin historians must be of a pure saxon original ; he despair'd of ever accomplishing his design , for want of understanding that language . at least , he was certain , that the knowledge of it must needs lead him to a clearer interpretation of many obscure passages , and enable him ( throughout the whole work ) to deliver his opinion with a better assurance . this language , at that time , was not to be learnt without great difficulty : little assistance was to be expected from conversation , in a study which few people of that age ever minded . nor had he the directions either of grammar or dictionary ; as we at this day are accommodated with both , very accurate in their kind . however , he set heartily about it ; and tho' , i think , he never perfectly conquer'd it ; yet ( under so many inconveniencies ) it is a greater wonder that he should attain so good a knowledge , than that he should not make himself an absolute master of it . after he had made large collections , and got tolerable knowledge of the saxon tongue ; he resolv'd to go on with his undertaking : but because he would not depend altogether upon his own judgement , he printed a sheet or two for a specimen , whereby his friends might be able to give him their opinion of the design . he was encourag'd , on all hands by the most learned persons of that age ; at home by archbishop usher , bishop williams then lord keeper , mr. selden , and sir robert cotton ; abroad , by rigaltius , salmasius , piereschius , and others ; as also bignonius , meursius , and lindenbrogius , whose assistances he very gratefully acknowledges , in his preface to the work . upon their encouragement , he prepar'd part of it for the press , and offer'd the whole copy to mr. bill the king's printer . he was very moderate in his demands ; desiring only five pound , in consideration of his labour , and that too to be paid him in books . but mr. bill absolutely refus'd to meddle with it ; knowing it to be upon a subject out of the common road , and not likely to prove a saleable work . so that sir henry was forc'd to carry it on at his own charge ; and in the year . publisht the first part of it , to the end of the letter l. why he went no farther , i cannot tell ; nor has he so much as hinted to the cause of it , either in his preface , or any part of his works , that i know of . monsieur du fresne ( who very much laments that he should not publish the second part himself ) fancies that his design of compiling the english councils , might be the occasion of his breaking off in the middle of his glossary . but 't is not likely , that a person of sir henry spelman's settl'd temper and resolution , should leave one work imperfect , to make way for another . i have heard it affirm'd by others , that he stopped at the letter m. because he had said somethings under magna charta , and magnum consilium , that his friends were afraid might give offence . but i believe , the true reason was this : printing it at his own charge , he must have laid out a considerable summ upon the first part , and having a large family , there was no reason why he should venture as much more , without the prospect of a quicker return , than either the coldness of the bookseller , or the nature of the work gave him . it fell out accordingly ; for , eleven years after , the greatest part of the impression remain'd unsold ; till in . two of the london booksellers took it off his hands . and ( tho' he should afterwards have had encouragement to go forward ) that was not a time to speak freely , either of the king's prerogative or the liberties of the subject ; both which would upon many occasions fall in his way . besides , that the finishing the second part , with the same copiousness and accuracy as he had done the first , would have been too heavy a task for a man of his great age. the author has told us in an advertisement before the book , that he chose to entitle his work archaeologus , rather than glossarium , as we commonly call it . for a glossary , strictly speaking , is no more than a bare explication of words ; whereas this does more especially treat of things , and contains entire discourses and dissertations upon several of the heads therein mention'd . for which reason , it is not only to be consulted upon occasion , like our common lexicons ; but ought to be carefully perus'd and study'd , as the greatest treasure extant , of the ancient customs and constitutions of england . before the edition of . he has this remarkable dedication : deo , ecclesiae , literarum reipub. sub protestatione de addendo , retrahendo , corrigendo , poliendo , prout opus fuerit & consultius videbitur ; deo clementissime annuente , henricus spelmannus omni supplex humilitate d. d. i have therefore set it down at large , because in the editions of . and . they have thought fit to omit it : and i would not have the good man depriv'd of such a publick testimony of his modesty , and love for truth . about the year . sir william dugdale acquainted our author , that many learned men were very desirous to see the second part publisht ; and requested of him to gratifie the world with the work entire . upon that , he show'd him the second part ; as also the improvements that he had made upon the first : but withall told him , what great discouragements he had met with from the booksellers . so , for that time , the matter rested ; and upon the author's death , all the papers came into the hands of his eldest son sir john spelman ; a gentleman who had sufficient parts and abilities , to compleat what his father had begun , if death had not prevented him . after the restoration of king charles ii. arch-bishop sheldon and the lord chancellor hyde , enquir'd of sir william dugdale , what became of the second part of the glossary , or whether it was ever finisht . he told them that it was finisht by the author , and that the copy was in the hands of mr. charles spelman , grandson to sir henry . they desir'd , that it might by all means be printed , and that he would prevail upon mr. spelman to do it ; for the service of the publick and the honour of his grandfather . whereupon , having got a good number of subscriptions , the management of that whole affair was referr'd to sir william dugdale ; as well to treat with the booksellers , as to prepare the copy for the press . the share that sir william dugdale had , in the publication of this second part , has been made the ground of a suspicion , that he inserted many things of his own , that were not in sir henry spelman's copy ; and particularly , some passages which tend to the enlargement of the prerogative in opposition to the liberties of the subject . the objection has been rais'd on occasion of a controversie , about the antiquity of the commons in parliament ; the authority of sir henry being urg'd , to prove that there was no such thing as a house of commons till the time of henry iii. it is agreed on all hands , that this learned knight was a very competent judge of that controversie ; that as he had thoroughly study'd our constitution , so he always writ without partiality or prejudice ; that he was not engag'd in a party , nor had any other design but to publish the truth fairly and honestly , as he found it asserted by the best historians . upon these grounds , his opinion in matters of this nature , has ever been thought confiderable ; and his bare judgement will always be valu'd , when we can be sure that it is his own . and there can be no doubt , but his assertions under the title parlamentum ( upon which the controversie is rais'd ) are his own , and not an interpolation of sir william dugdale's . for the very copy from which it was printed , is in the bodleian library , in sir henry spelman's own hand ; and agrees exactly with the printed book : particularly , in the passages under dispute , they are the same , word for word . so far then as this copy goes ( for it ends at the word riota , ) it is a certain testimony , that sir william dugdale did no more than mark it for the printer , and transcribe here and there a loose paper . and tho' the rest of the copy was lost , before it came to the oxford library , and so we have not the same authority for the glossarie's being genuine , after the letter r ; yet it is not likely that sir william had any more share in the seven last letters of the alphabet , than he had in the others . for all the parts of such a work must be carry'd on at the same time ; and so , to be sure , the author left equal materials for the whole . the gentleman also , who is concern'd to prove the second part to be all genuine , has urg'd sir william dugdale's own authority for it ; and that too while he was living . then , i have seen a letter from sir william dugdale to mr. spelman , giving him an account of the great losses he had sustain'd by the fire of london , and the pains he had taken in the publication of the councils and glossary . as to the former , he expresly lays claim to the better half of it , as his own work and collection ; adding , that if the impression had not perisht , in all right and reason he ought to have had consideration for the same ; as also ( so he goes on ) for my pains in fitting the copy of the glossary for the printer , by marking it for the difference of letter , and introducing and transcribing those loose papers left by your grandfather , without fit directions where they should come in . this is all that he pretends to , in the glossary ; and if he had any further share in it , t is likely he would have insisted upon it , on this occasion ; to convince mr. spelman the more effectually of the good services he had done him in that business . i have been the more particular in this matter , because if it should appear in the main , that sir william had taken the liberty of adding or altering ; every single passage after would be lyable to suspicion , and the authority of the whole very much weaken'd . for tho' that worthy person was extremely well vers'd in our english affairs ; yet it must be own'd , that sir henry spelman was a better judge of our ancient customs and constitutions ; and consequently , whatever he delivers as his opinion , ought to be allow'd a proportionable authority . had he put his last hand to this second part , the glossary ( as it is now printed together ) would have made a much nobler work. but the latter part , in comparison of the other , is jejune and scanty ; and every one must see , that it is little more than a collection of materials , out of which he intended to compose such discourses , as he has all along given us in the first part , under the words that are most remarkable . it was my good fortune , among others of his papers , to meet with two of these dissertations , de marescallis angliae and de milite ; which are publisht among these remains for the present , and will be of use hereafter , in a new edition of the glossary ; as properly belonging to it , and originally design'd for it by the author . tho' it is not likely that he should lay aside his glossary , for the sake of the councils ; yet it is certain , that he enter'd upon this latter work , before the glossary was finisht . he was particularly encourag'd in it , by dr. george abbot and dr. william laud , successively arch-bishops of canterbury ; and above all , by the most learned primate of armagh , archbishop usher . and in his preface , he tells us that he was much confirm'd in his design , by what he had heard from dr. wren , first , bishop of norwich , and afterwards of ely. he told him , how dr. andrews ( the then late bishop of winchester ) had been reflecting with great concern , upon the diligence of the germans , french , italians , and other nations , in publishing the histories and decrees of their respective synods ; whilst the english ( who had a greater plenty of evidences both in ecclesiastical and civil affairs , than any of their neighbours ) had never so much as attempted such a publick service to their church , upon that occasion , the good bishop desired dr. wren , that for the credit of the kingdom and the honour of religion , he would think of such an undertaking ; and lest it should prove too tedious for any single hand , that he would draw to his assistance a convenient number of men , of sufficient learning and judgement for a work of that nature . upon this request , he promis'd to consider of it ; and had proceeded , but that the bishop excus'd him , upon an assurance , that sir henry spelman was engag'd in the same design . sir henry having been told this passage by the bishop of norwich , with great modesty express'd his concern , for taking the work out of much abler hands . but since it had hapen'd so , he did not any longer look upon it as a matter of choice , whether or no he should go forward ; but thought he was bound in justice to make the best satisfaction he was able , for depriving the church of the joint labours of so many learned men. he branch'd his undertaking into three parts ; assigning an entire volume to each division : . from the first plantation of christianity , to the coming in of the conqueror , in . d . from the norman conquest , till the casting off the pope's supremacy , and the dissolution of monasteries by king henry viii . d. the history of the reform'd english church , from henry viii . to his own time . the volume containing the first of these heads , was publisht in the year . ( about two years before his death ) with his own annotations upon the more difficult places . he confesses , that it would have been impossible for him to finish it , without the assistance of his own son and mr. jerem . stephens . of the former of these we have occasion to speak more at large , among sir henry's children : and also of the latter , upon occasion of some papers , that he left at his death , to the care of that learned gentleman . only , it may be proper to observe in this place , that arch-bishop laud procur'd for him a prebend in the church of lincoln , for his assisting in the publication of the first volume of the councils . and sir henry does , in effect , recommend to him the preparing the second and third ; as a person every way qualified to compleat the design . the author honestly tells us , ( that in such a confusion of thoughts and papers ) he had omitted the accounts of some synods , which he had ready by him : that he had receiv'd observations from many learned persons , after the press was gone too far to have them inserted : and that particularly the learned primate of armagh had communicated his animadversions upon the whole volume . i have seen , among his own papers , the remarks of salmasius and de laet ; but where the rest are to be met with , i cannot tell . out of these , the corrections and additions that he himself had made , he resolv'd to publish an appendix to the tome , but i suppose was prevented by death . however , to encline the reader to a favourable interpretation of the omissions or imperfections of his work ; he desires him to consider that most of his materials were to be fetch'd from manuscripts ; whereof indeed there were very great numbers , both in the universities and other parts of the kingdom ▪ but being neglected by the generality of scholars , they lay in confusion and were in a great measure useless , to his or any other design . at that time , this was a just and proper apologie ; but our age is much more curious in those matters . witness that noble catalogue of manuscripts which we daily expect from the oxford press , and a volume of the same kind intended by the university of cambridge . the second volume of the councils ( at the same time with the second part of the glossary ) was put into the hands of sir william dugdale , by the direction of arch-bishop sheldon and chancellor hyde . he made considerable additions to it out of the arch-bishop's registers and the cottonian library ; so that he affirms in a letter to mr. spelman , grandson to sir henry , that of the . sheets in that book , not above . were of his grandfather's collecting . and it appears from the original in the bodleian library , under the hands of sir henry spelman and sir william dugdale ; that the former had left little more towards the second volume , than hints and references where the councils were to be met with . it was publisht in the year . but with abundance of faults , occasion'd by the negligence either of the copier or corrector , or both . mr. somner , sensible of this , took great pains in collecting the printed copy with many of the original records ; correcting the errors in the margin of his own book . this is now in the library of the church of canterbury , and will be a good help towards a more accurate edition ; as well as those collections of mr. junius , in the possession of mr. jones of sunningwell . the truth is , we very much want a new edition ; the greatest part of the impression having been burnt in the fire of london ; so that the book is hardly to be met with , and ( uncorrect as it is ) has ever since bore an immoderate price . i know no work that would be a greater service to our church , than an entire history of all the councils before the reformation , ▪ for the account of 'em which we have already , is far from being entire ▪ with the addition of a third volume , to contain the publick affairs of our reform'd church . ( it is probable , that towards this last part , some assistance may be had from that manuscript of sir william dugdale's , entitl'd papers to be made use of for a third volume of the councils ; tho' i fear not so much as the title promises . ) the great discoveries of manuscripts ; the many observations that have been made by the learned bishop of worcester and others , upon the constitution of the british and saxon churches ; and the general approbation that the work must needs meet with ; are all of 'em very good encouragements to such an undertaking . next to his glossary and councils ; we are to give an account of that part of his works , wherein he asserts a due veneration to persons , places , and things , consecrated to the service of god. the first that he publisht of this kind , was his noted treatise de non temerandis ecclesiis ; printed at london in the ● . and afterwards at other places . it was written ( as the title informs us ) for the sake of a gentleman , who having an appropriate parsonage , employed the church to prophane uses , and left the parishioners uncertainly provided of divine service in a parish there adjoining . the two oxford editions came forth with a large preface by his son clement spelman , containing many things relating to impropriations , and several instances of the judgements of god upon sacriledge . the greatest part of these instances seems to be taken from his history and fate of sacriledge , a book still in manuscript . the gentleman , for whose sake it was written , dy'd immediately upon the publication of this book ; but however it did very good service to the church . this , mr. stephens has made appear , in a preface to some of his posthumous works ; wherein he instances in several gentlemen who were induc'd by the reading of this book , to restore their impropriations to the church . that part of the preface is since reprinted before an edition of this book which came out in the year . and therefore i shall not repeat the catalogue of them in this place . i will only beg leave to mention a more modern benefaction of this kind ; as it is set down in the late edition of camden's britannia . scarce two miles from arksey ( in the west-riding of york-shire ) lies adwick in the street , memorable on this account , that mrs. ann savill ( a virgin benefactor yet living ) daughter of john savill of medly esq purchased the rectory thereof , for which she gave about l. and has settl'd it in the hands of trustees for the use of the church for ever ; and this from a generous and pious principle upon the reading of sir henry spelman's noted treatise , de non temerandis ecclesiis . some reflections were made upon this discourse , by an unknown author ; who could not forgive sir henry for paying so much respect to churches , and particularly for applying the word ecclesia to a material church ; urging that this term belongs only to the assembly or congregation . this sir henry takes notice of in his glossary , under the title ecclesia , producing some instances of the use of that word in ancient authors : and afterwards honoured it with a fuller apology . it is publisht by mr. stephens , at the end of his larger work of tithes , ( so call'd with respect to the smaller treatise de non temerandis ecclesiis ; ) together with a pious epistle to mr. richard carew , who in a letter to the author had express'd his dissatisfaction in some particulars of this work. his next book upon this subject , is that which he calls the larger work of tithes ; publisht by mr. jerem. stephens in the year . with an excellent preface by the same hand . in this discourse , he asserts tithes to the clergy , from the laws of nature and of nations ; from the commands of god in the old and new testament ; and from the particular constitution of our own kingdom . another work , in vindication of the rights of the church , is still in manuscript , with this title ; the history and fate of sacriledge , discover'd by examples of scripture , of heathens , and of christians ; from the beginning of the world continually to this day , by sir henry spelman kt. anno domini . the account which the oxford antiquary gives us of it , is this : in the year . mr. stephens began to print the history of sacriledge , design'd and began by sir henry spelman , and left to mr. stephens to perfect and publish . but that work sticking long in the press , both the copy , and sheets printed off , perisht in the grand conflagration of london , . i have been told by a learned divine ▪ since , a prelate of our church , ) that mr. stephens was forbidden to proceed in an edition of that work , lest the publication of it should give offence to the nobility and gentry ▪ but , whatever was the occasion of its continuing in the press till the fire of london ; it has been taken for granted , that the whole book was irrecoverably lost : and i was satisfied of the same ▪ upon mr. wood's relation of the matter ; till examining some manuscripts which were given to the bodleian library by the late bishop of lincoln , i met with a transcript of some part of it . upon further enquiry , i found other parts , in other places : so that now the work seems to be pretty entire . he begins with a general definition of sacriledge ; then reckons up various kinds of it , as to places , persons , and things ; after which , he enumerates ( at large ) the many signal punishments of it among heathens , jews , and christians ; describing more particularly the instances of that kind , which have formerly happen'd in our nation . then , he proceeds to give an account of the attempt upon the lands of the clergy in henry the iv's . time , and how it was disappointed ; afterwards he descends to the suppression of priories-alien in the reign of henry v. and so on to the general dissolution under henry viii . here , he shows us the several steps of the dissolution ; the king 's express promise to employ the lands to the advancement of learning , religion , and relief of the poor ; with the remarkable calamities that ensu'd , upon the king , his posterity , his principal agents in that affair , the new owners of the lands , and the lords who promoted and passed the dissolution act : concluding with a chapter , which contains the particulars of divers monasteries in norfolk , whereof the late owners since the dissolution are extinct , or decay'd , or overthrown by misfortunes and grievous accidents . this is a short account of a large work : wherein the judicious author is far from affirming , that their being concern'd in this affair ( either as promoters of the alienation or possessors of the lands ) was directly the occasion of the calamities that ensu'd . on the contrary , he declares more than once , that he will not presume to judge of the secret methods of god's providence ; but only relates plain matters of fact , and leaves every man to make his own application . tho' it must be granted , that many of the instances ( and those well asserted ) are so terrible in the event , and in the circumstances so surprising ; that no considering man can well pass them over , without a serious reflection . this discourse might have appear'd among his other posthumous works ; but that some persons in the present age would be apt to interpret the mention of their predecessors ( in such a manner , and on such an occasion ) as an unpardonable reflection upon their families . these , i think , are all the treatises that he either wrote or publisht about the rights of the church . the next work that i shall mention , is a history of the civil affairs of the kingdom , from the conquest to magna charta , taken from our best historians , and generally set down in their own words . it is a manuscript in the bodleian library , and the title which sir henry has given it , is this : codex legum veterum & statutorum regni angliae , quae ab ingressu gulielmi , usque ad annum nonum henrici tertii edita sunt ; hoc est , ante primum statutum omnium impressorum in libris juridicis , quod magna charta appellatur , ab edwardo i. confirmata . e variis monimentis , authoribus , manuscriptis , & antiquis paginis concinnatum . opere & studio henrici spelman collecta . anno dom. . with the imprimatur of sir john bramston , july . . many instruments in this collection , are printed in the second volume of his councils ; and it might be much improv'd from some historians that have been publisht since his time . in the year . there came out a discourse de sepultura , by sir henry spelman , concerning the fees for burials . 't is likely , that it was compos'd on occasion of his being one of the commissioners for regulating the fees , in our civil and ecclesiastical courts . the treatise consists of five sheets in to . so that i wonder why j. a. in his preface to the glossary , should tell us that is was no more than two leaves . his latin treatise entitled aspilogia was next publish'd ( with notes ) by sir edw. bish anno . in folio . in this ( tho' it was one of his first pieces ) he discourses with great variety of learning concerning the original and different kinds of those marks of honour , since call'd arms. he also drew up a scheme of the abbreviations and such other obsolete forms of writing , as occur in our old manuscripts ; to facilitate the reading of ancient books and records . there are several copies of it in manuscript ; as , one in the bodleian library ; another in the library of the late dr. plot ; a third in the possession of mr. worsley of lincolns-inn ; and 't is probable , there may be more of ▪ em abroad in other hands . two other things he was concern'd in ; which i shall but just mention . the villare anglicum , or a view of the towns in england , ( publisht in the year . ) was collected by the appointment , at the charge , and for the use of that worthy antiquary sir henry spelman . and mr. speed , in his description of great britain , acknowledges that he receiv'd the account of norfolk from the same learned knight . as for his posthumous works which are publisht together on this occasion , i shall give a more particular account of 'em in the preface ; and in this place shall only add an instance or two , of his encouragement to learning and learned men. it was he , who first advis'd dr. wats to the study of antiquities , and when he had arriv'd to a good skill in those matters , put him upon a new edition of matthew paris . the doctor , in the preface to that excellent work , makes this grateful mention of his friend , and patron : tertium manuscriptum accommodavit nobilis ille doctissimusque dominus henricus spelmannus eques auratus , eruditionis reconditioris , judicii acerrimi vir , nostrae britanniae lumen gloriaque ; amicus insupermeus singularis , in studiis adjutor praecipuus ; & qui me primus ad antiquitates eruendas tam verbo quam exemplo aliquoties stimulavit erudivitque . he was likewise a great favourer of sir william dugdale ; who had been recommended to him by sir simon archer , a gentleman of warwickshire , very well versed in heraldry , and the affairs of our own nation . at that time , mr. dodsworth ( who was much assisted and encouraged by sir henry spelman ) had got together a vast collection of records , relating to the foundation of monasteries in the northern parts of england . sir henry thought that these might be very well improv'd into a monasticon anglicanum ; and lest the design should miscarry by mr. dodsworth's death , he prevail'd upon mr. dugdale to join him in so commendable a work ; promising to communicate all his transcripts of foundation charters , belonging to several monasteries in norfolk and suffolk . for his further encouragement , he recommended him to thomas earl of arundel , then earl marshal of england , as a person very well qualify'd to serve the king in the office of arms. accordingly , upon his character of him ( seconded by the importunity of sir christopher hatton ) he was settl'd in the heralds-office ; which gave him an opportunity to fix in london , and from the many assistances there , to compile the laborious volumes which he afterwards publisht . his revival of the old saxon tongue , ought to be reckon'd a good piece of service to the study of antiquities . he had found the excellent use of that language in the whole course of his studies ; and very much lamented the neglect of it , both at home and abroad : which was so general , that he did not then know one man in the world , who perfectly knew it . paulatim ( says he ) ita exhalavit animam , nobile illud majorum nostrorum & pervetustum idioma ; ut in universo ( quod sciam ) orbe , ne unus hodie reperiatur ; qui hoc scite perfecteve calleat ; pauci quidem , qui vel exoletas literas usquequaque noverint . hereupon he settl'd a saxon lecture in the university of cambridge , allowing l. per an. to mr. abraham wheelock ; who tells us , that upon his advice and encouragement , he spent the best part of seven years in the study of that language : magnam septennii quod effluxit partem consumpsi saxonum nostrorum inquirendo monumenta , eorumque vetus idioma ( veritatis & pacis catholicae magistram ) perquirendo ; ne nobilissimi viri & in his studiis monitoris mei honoratissimi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 d. henrici spelmanni , antiquitatum nostrae gentis instauratoris eximii , consilio defuissem . this stipend was intended to be made perpetual ; but both he and his eldest son dying in the compass of two years , the civil wars breaking forth , and the estate being sequester'd ; the family became uncapable of accomplishing that design . nor indeed was that a time for settlements of this kind , when such a terrible storm threatn'd the universities and the revenues that belong'd to ' em . after he came into business , he was intimately acquainted with the most considerable persons of that age. he calls mr. camden , his ancient friend ; and how entire a familiarity there was between him and arch-bishop usher , we are inform'd from the life and letters of that learned primate . to these i might add sir rob. cotton , mr. selden , olaus wormius ; with peireschius , meursius , beignonius , and others of great note both at home and abroad , whom he himself occasionally mentions , as the chief encouragers of his glossary . upon the whole matter ; as his loyalty , wisdom , and experience in publick affairs , would sufficiently recommend him to the great states-men of his time ; so his eminent piety and learning must needs make him highly esteem'd among divines and scholars . he had eight children , four sons and four daughters . his eldest son ( the heir of his studies , as he calls him ) was john spelman esq a scholar and a gentleman ; who had great assurances of favour and encouragement from king charles i. this good prince sent for sir henry spelman , and offer'd him the mastership of suttons hospital , with some other things , in consideration of his good services both to church and state. but after his humble thanks to his majesty , he told him , that he was very old and had one foot in the grave ; and that it would be a much greater obligation upon him , if his majesty would please to consider his son. accordingly , the king sent for mr. spelman ; and with many expressions of kindness , immediately conferr'd on him the honour of knighthood . after the civil wars broke out , his majesty , by a letter under his own hand , commanded him from his own house in norfolk , to give his attendance at oxford ; where he was oftentimes call'd to private councel , and employ'd to write several papers in vindication of the proceedings of the court. but while he was thus attending the affairs of the publick , and ▪ when these would give him leave ) his own private studies ; he fell sick , and died the . of july , . his funeral sermon , by his majestie 's special order , was preached by arch-bishop usher ; an intimate acquaintance both of the father and son. in the year . he had publisht the saxon psalter from an ancient ms. of sir henry's ; which ( as he tells us in the preface ) was a task enjoyn'd him by his father . he also wrote the life of king alfred in english ; which having layn several years in manuscript , was at last translated into latin , and publisht in . with mr. walker's commentary upon it . clement spelman ( youngest son to sir henry ) was a councellor , and made puny baron of the exchequer , upon the restoration of king charles ii. he publisht some peices relating to the government , and a large preface to his father's book de non temerandis ecclesiis . dying in june . he was buried in st. dunstan's church in fleet-street . to return to sir henry : he dy'd in london , at the house of sir ralph whitfeild his son-in-law ; being about . years of age. his body , by the favour of king charles , was appointed to be inter'd in westminster-abbey ; whither it was carried with great solemnity , on the th . of october , . and buried at the foot of the pillar over against mr. camden's monument . the several discourses contain'd in this volume . . the original , growth , propagation and condition of feuds and tenures by knight-service , in england , pag. . chap. i. the occasion of this discourse , and what a feud is , p. . chap. ii. the original , growth , and propagation of feuds : first in general , then in england , p. . chap. iii. that none of our feodal words , nor words of tenure , are found in any law or ancient charter of the saxons , p. . chap. iv. of tenures in capite , more particularly , p. . chap. v. what degrees and distinctions of persons were among the saxons , and of what coudition their lands were , p. . chap. vi. of earls among our saxons , p. . chap. vii . of ceorls ; and that they were ordinarily but as tenants at will ; or having lands , held not by knight-service , p. . chap. viii . of thanes , and their several kinds , p. . chap. ix . charters of thane-lands granted by saxon kings , not only without mention of tenure or feodal-service , but with all immunity , except expedition , &c. p. . chap. x. observations upon the precedent charters , shewing that the thane-lands or expedition were not feodal , or did lye in tenure , p. . chap. xi . more touching the freedom of thane-land out of doomsday , p. . chap. xii . the fruits of feodal tenures ; and that they were not found among the saxons , or not after our manner , p. . chap. xiii . no profit of land by wardship in the saxons time , p. . chap. xiv . no wardship in england amongst the saxons : objections answer'd , p. . caap. xv. no marriage of wards , p. . chap. xvi . no livery ; no primer-seisin , p. . chap. xvii . that reliefs ( whereon the report most relyeth ) were not in use among the saxons ; nor like their heriots , p. . chap. xviii . difference between heriots and reliefs , p. . chap. xix . no fines for licence of alienation , p. . chap. xx. no feodal homage among the saxons , p. . chap. xxi . what manner of fealty among the saxons , p. . chap. xxii . no escuage among the saxons : what in the empire , p. . chap. xxiii . no feodal escheate of hereditary lands among the saxons , p. . chap. xxiv . thaneland and reveland what : no marks of tenure , but distinctions of land-holders , p. . chap. xxv . how the saxons held their lands ; and what obliged them to so many kinds of services , p. . chap. xxvi . the charter whereby oswald bishop of worcester , disposed divers lands of his church after the feodal manner of that time , entituled , indiculum libertatis de oswalds-laws-hundred , p. . chap. xxvii . inducements to the conclusion , p. . chap. xxviii . the conclusion , p. . ii. of the ancient government of england , p. . iii. of parliaments , p. . iv. the original of the four terms of the year , p. . the occasion of this discourse , p. . sect . i. of the terms in general , p. . sect . ii. of the names of terms , ibid. sect . iii. of the original of terms or law-days , p. ▪ sect . iv. of the times assigned to law-matters , call'd the terms , ibid. chap. i. of law-days among the ancients , p. . chap. ii. of law-days amongst the romans , using choice days , p. . chap. iii. of law-days among the first christians , using all times alike , p. . chap. iv. how sunday came to be exempted , p. . chap. v. how other festival and vacation-days were exempted , ibid. chap. vi. that our terms took their original from the canon-law , p. . chap. vii . the constitution of our saxon kings in this matter , ibid. chap. viii . the constitution of canutus , more particular , p. . chap. ix . the constitution of edw. the confessor , most material , p. . chap. x. the constitution of william the conqueror , p. . chap. xi . what done by will. rufus , henry i. k. stephen , and hen. ii. p. . chap. xii . the terms laid out according to their ancient laws , p. . chap. xiii . easter-term , p. . chap. xiv . trinity-term , p. . chap. xv. of michaelmass-term , according to the ancient constitutions , p. . chap. xvi . the later constitutions of the terms , p. . chap. xvii . how trinity term was alter'd and shortn'd , p. . chap. xviii . [ how michaelmass-term was abbreviated by act of parliament , . car. i. cap. . ] p. . sect . v. other considerations concerning term-time , ibid. chap. i. why the high-courts sit not in the afternoons , p. . chap. ii. why they sit not at all some days , p. . chap. iii. why some law business may be done on days exempted , p. . chap. iv. why the end of michaelmass-term is sometimes holden in advent , and of hilary in septuagesima , &c. p. . chap. v. why assizes be holden in lent , ibid. chap. vi. of the returns , p. . chap. vii . of the quarta dies post , p. . chap. viii . why there is so much canon and foreign law us'd in this discourse ; with an excursion into the original of our laws , p. . appendix , p. . v. an apologie for arch-bishop abbot , touching the death of peter hawkins the keeper , wounded in the park at bramsil , july . . p. . vi. an answer to the said apologie , p. . vii . letters and instruments relating to the killing of hawkins , by the a. b. p. . viii . of the original of testaments and wills , and of their probate , to whom it it anciently belong'd , p. . ix . icenia , sive norfolciae descriptio topographica , p. . x. catalogus comitum marescallorum angliae , p. . xi . dissertatio de milite , p. . de aetate militari , p. . de evocatis ad militiam suscipiendam , p. . de modo ●reandi militem honoratum ; & primo de cingulo militari , p. . qui olim fiebant milites , p. . qui possint militem facere , p. . judices etiam sub appellatione militum censeri ; scil . equ . esse palatinos , p. . de loco & tempore creationis , p. . de censu militari , p. . modus exauctorandi militem , quod degradare nuncupatur . xii . historia familiae de sharnburn , p. . xiii . familiae extraneorum ( sive lestrange ) accurata descriptio , p. . xiv . a dialogue concerning the coin of the kingdom ; particularly , what great treasures were exhausted from england , by the usurpt supremacy of rome , p. . xv. a catalogue of the places or dwellings of the arch-bishops and bishops of this realm ( now or of former times ) in which their several owners have ordinary jurisdiction , as if parcel of their diocess , tho' they be situate within the precinct of another bishop's diocess , p. . the original , growth , propagation and condition of feuds and tenures by knight-service , in england . chap. i. the occasion of this discourse , and what a feud is . in the great case of tenures , upon the commission of defective titles , argued by all the judges of ireland , and published after their resolution by the commandment of the lord deputy , this year . it fell out upon the fourth point of the case to be affirmed , that tenures had their original in england before the norman conquest : and in pursuit of this assertion it was concluded , that feuds were then and there in use . in proof hereof divers laws and charters of the saxon kings , and some other authorities be there alledged , which being conceived to have clear'd that point , it thus followeth in the report , p. . and therefore it was said that sir henry spelman was mistaken , who in his glossary ( verbo feodum ) refers the original of feuds in england to the norman conquest . and for a corollary ( p. . ) addeth these words : neither is the bare conjecture of sir henry spelman sufficient to take away the force of these laws . vide spelman in glossar . verbo feodum . being thus by way of voucher made a chief antagonist to the reverend opinion of these learned , grave , and honour'd judges , i humbly desire of them , that writing what i did so long ago , and in a transitory passage among a thousand other obscure words ( not thinking then to be provok'd to this account ) they will be pleas'd to pardon my mistakings where they fall , and to hear without offence , what motives led me to my conjectures which they speak of . it is necessary therefore , that first of all we make the question certain , which ( in my understanding ) is not done in the report . for it is not declared whether there were divers kinds of feuds or no ; nor what kind they were that were in use among the saxons : nor what kind those were that i conjectured to be brought in by the norman conqueror . i will therefore follow the direction of the orator , and fix the question upon the definition . a feud is said to be vsus fruct●s quidam rei immobilis sub conditione fidei . but this definition is of too large extent for such kind of feuds as our question must consist upon : for it includeth two members or species greatly differing one from the other , the one temporary and revocable , ( as those at will or for years , li●e or lives ) the other hereditary and perpetual . as for temporary ●eu●s , which ( like wild fig-trees ) could yield none of the feodal fruits of wardship , marriage , relief , &c. unto their lords , they belong nothing unto our argument , nor shall i make other use in setting of them forth , than to assure the reader they are not those that our laws take notice of . to come therefore to our proper scheme , let us see what that hereditary feud is , whereupon our question must be fixed : for none but this can bear the feodal fruits we speak of , wardship , marriage , &c. a feud is a right which the vassal hath in land , or some immoveable thing of his lord's , to use the same and take the profits thereof hereditarily : rendring unto his lord such feodal duties and services as belong to military tenure : the meer propriety of the soil always remaining unto the lord. i call it as the feudists do , jus utendi praedio alieno ; a right to use another mans land , not a property in it ; for in true feodal speech the tenant or vassal hath nothing in the propriety of the soil it self , but it remaineth intirely unto the lord , and is comprehended under the usual name which we now give it of the seignory . so that the seignory and the feud being joyned together , seem to make that absolute and compleat estate of inheritance , which the feudists in time of old called allodium . but this kind of feud ( we speak of ) and no other , is that only whereof our law taketh notice , though time hath somewhat varied it from the first institution , by drawing the propriety of the soil from the lord unto the tenant . and i both conceive and affirm under correction , that this our kind of feuds being perpetual and hereditary , and subject to wardship , marriage , and relief , with other feodal services , were not in use among our saxons ; nor our law of tenures ( whereon they depend ) once known unto them . as shall appear by that which hereafter followeth . chap. ii. the original , growth , and propagation of feuds : first in general , then in england . before i enter into the question in hand , it will be necessary for better understanding that which followeth , to set forth the original , growth , propagation , and condition of feuds in general : which i conceive to be thus . there were no doubt from the beginning of jus gentium , lords and servants ; and those servants of two sorts . some to attend and guard the person of their lord upon all occasions in war and peace . some to manure his lands for the sustenance of him and his family . when private families were drawn into a kingdom , the kings themselves held this distribution . examples hereof are in all nations . king david well observ'd it in the institution of the kingdom of israel : where , if such services have any shew of feuds or tenures , we have a pattern for them all : viz. for that of francalmoine in the levites : for knight-service , tenure in capite , and grand serjeanty in the military men , which serv'd the king personally by monthly courses : for socage , in those whom david appointed to manure the fields , dress the vineyards , the olive-trees , the mulberry-trees , and that had the care of the oyl , of the oxen , of the camels , asses , sheep , &c. for the lands and portion of the levites was given to do the service of the tabernacle ; the lands of the other tribes , to fight the battels of the lord against his idolatrous enemies , and to root them out . thus may fancy couple the remotest things . to come lower down and nearer home , pausanias tell 's us , that when brennus ( who they say was a britain ) invaded greece with an army of gauls ; every horseman of the better sort , had two other horsemen to attend and second him ( as his vassals ) and they three together were called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 trimarcesiam , i. e. a society of three horsemen . but caesar saith , that the nobler gauls in his time , had ( according to their abilities ) many horsemen attending them in war , whom by a german word he calleth ambactos , which properly signifieth servants , vassals , workmen , and labourers ; yet he by a fairer name expoundeth it there in latin clientes , and in another place calleth them among the germans comites & familiares , as accounting them ( like abraham's . souldiers ) to be all their lord's followers and of his family . tacitus likewise nameth them comites , as companions and followers ; quod bello sequi dominum coguntur , saith cujacius . but tacitus further saith , gradus quinetiam ipse comitatus habet judicio ejus quem sectantur ; that there were degrees in those companies , as he whom they followed did appoint . like them , perhaps , in after-ages of earls , barons , knights , &c. but how the comites or ambacti were maintained , neither caesar nor yet tacitus have related . as for such portions of land , as we call knights-fees , they could not then have any ; for caesar speaking of the germans saith , ( and so it appears by tacitus ) neque quisque agri modum certum , aut fines proprios habet , &c. that no man hath any certain estate or peculiar bounds of lands ; but the magistrate and lords ( of the place ) assign from year to year to kindreds and such as live together , what quantity of land , and in what place they think good ; and the next year force them to remove . the reason you may see in caesar , who also sheweth , that they had no common magistrate ; but the lord of the town or territorie set what laws he would among his followers or ambactos . these laws , the goths , the swedes , the danes , and saxons , called bilagines ; of by , which in all these languages signifieth a town , and lagh or laghen which signifieth laws , as gravius suecus , and our saxon authors testifie . and tho' jornandes a spanish goth writeth it after the spanish corruption bellagine● , yet we in england keep the very radix and word it self by-laws even unto this day , tho' diverted somewhat from the sense that caesar speaks of . for we call them town-laws or by-laws which the townsmen make among themselves ; but caesar sheweth that the lords imposed them . herewith agreeth , that of tacitus , or some other ancient , who speaking of the germans saith , agricolis suis jus dicunt , they give laws to them which dwell upon their lands . for i take agricolis here in the larger sense , to extend to all that dwell upon the lord's lands ( as well his military followers as his husbandmen ) in the same manner as solicolae containeth all that live upon the soil , ruricolae all that live in the country , and coelicolae all that live in heaven . these lordships of towns , which caesar speaketh of , were after by the normans called maneria . the ambacti or comites , and these which he saith sectabantur dominos suos , were called vassalli , and sectatores manerii sive curiae domini vassals and suiters of court. the bilagines or town-laws were called consuetudines and customs of the mannor . the jurisdiction , which the lord had over his followers and suiters , was called the court baron , and the portions of land , &c. assigned to his followers for their stipend or maintenance , were at first called munera , after beneficia ; and lastly feuda or tenant-lands , which were of two sorts , one for military men called feudum militare and feudum nobile , tenure by knights-service ; the other for husbandmen call'd therefore feudum rusticum & ignobile , tenure in socage , or by the plough . thus it appeareth that feuds and tenures and the feudal law it self , took their original from the germans and northern nations . in such condition therefore ( how obscure soever ) as caesar and tacitus left them to us , gerardus niger the consul of milan ( who flourished about a. d. . and first composed them into a book ) taketh them up as he there findeth them , and speaking of the times of caesar and tacitus ( as having the forementioned passages under his eye ) saith , antiquissimo tempore sic erat in dominorum potestate connexum , ut quando vellent , possent auferre rem in feudum à se datam . and this agreeth with caesar , by whom it seemeth in the places before mentioned , that the ambacti or followers of the germans had in those times either no land at all , or no estate at all in their land , or first but at the will of the lord , and then but for one single year . which gerardus also confesseth to have been the condition of the eldest sort of feudataries , for he saith presently after his former words , postea vero eo ventum est , ut per annum tantum stabilitatem haberent ( res in feudum datae ) . thus for another while their feudal vassals ( whom here he calleth fideles , and we now tenants by knights-service ) enjoyed their feuds no otherwise than from year to year at the pleasure of their lords , either by grant or sufferance , till further grace confirmed them to them for divers years , and at length for term of life , which gerardus also presently there declareth , saying , deinde statutum est ut usque ad vitam fidelis producerentur ( feuda . ) in this manner stood the principal feuds themselves , even those of earldoms and dukedoms ( which they call feuda majora and feuda regalia ) in the latter time of the saxons , till the coming of the conquerour . but as touching the lesser feuds which we call knights-fees , i find nothing in abby-books , otherwise than a numerous multitude of leases and grants made by bishops and abbats to their followers for term of life , without mention of tenure or feudal service . yet i must confess that there is a notable precedent left us by oswald bishop of worcester in the time of king edgar , who in granting out the lands of his bishoprick unto his followers , for life or three lives , imposed upon them by a solemn instrument , ratified by the king himself , a multitude of services and charges , as well military as civil : which after you shall here see , and then consider how and whether they conduce to our feuds or not . if we understand them to be feuds among the saxons or of that nature , then are we sure they were no more than for life , and not inheritable nor stretching further , without further grace obtained from the lord. for which purpose conradus salicus ( a french emperour , but of german descent ) going to rome about fourty five years before the time of our king edgar ( viz. sub an. dom. . ) to fetch his crown from pope john x. made a constitution upon the petition of his souldiers : that filii or aviatici , the sons , or if no sons were living the nephews or grandsons ( as they call them ) of some of them , should succeed in the feud of their father . ( see the constitution in the beginning of the fifth book of feuds . ) but gerardus noteth that this law settled not the feud upon the eldest son , or any other son of the feudatarie particularly ; but left it in the lord's election to please himself with which of them he would . after this , feuds were continued in divers places by several increments to the third , fourth , fifth , sixth and seventh generation , and sometime ( for want of lineal issue ) collaterally to the brother , as gerardus testifieth ; but whether by some positive law , or by the munificence of the lords , he doth not tell us ; nor when or by whom they were made perpetual and hereditary ; tho' he confesseth , that at last they grew to be extended in infinitum , and then they began to be settled upon the eldest son , who formerly had no preheminence above a younger brother . but while they stood sometimes produced in this manner by the indulgence of princes , to the third , fourth , or fifth generation , &c. some men of learning have concluded them to be hereditary , as tho' there were no medium between a limitation ( how far so ever extended ) and infinitum . to pass by that ; let us now go on in examination , when and how feuds became hereditary . some suggest a shew of such a matter under the two othones , german emperours ( who succeeded one the other about the year . ) but to rest upon the common and received opinion ( which we shall hereafter more at large declare , ) the truth is , that when hugh capet usurped the kingdom of france againgst the carolinges , he to fortifie himself , and to draw all the nobility of france to support his faction about the year . granted to them in the year . that whereas till then they enjoyed their feuds and honors but for life or at pleasure of their princes ; they should from thenceforth for ever hold them to them , and their heirs , in feudal manner by the ceremony of homage , and oath of fealty : and that he would accordingly maintain them therein , as they supported him and his heirs in the crown of france ; which they joyfully accepted . this was a fair direction for william of normandy ( whom we call the conquerour ) how to secure himself of this his new acquired kingdom of england ; and he pretermitted not to take the advantage of it . for with as great diligence as providence , he presently transfer'd his country-customs into england ( as the black book of the chequer witnesseth ) and amongst them ( as after shall be made perspicuous ) this new french custom of making feuds hereditary , not regarding the former use of our saxon ancestors ; who , like all other nations , save the french , continued till that time their feuds and tenures , either arbitrary or in some definite limitation , according to the ancient manner of the germans , receiv'd generally throughout europe . for by the multitude of their colonies and transmigrations into all the chiefest parts thereof , they carried with them such feodal rights , as were then in use amongst them ; and planting those rites and customs in those several countries where they settled themselves , did by that means make all those several countries to hold a general conformitie in their feuds and military customs . so by the longobards they were carried into italy , by the saliques into the eastern parts of france , by the franks into the west part thereof , by the saxons into this our britain , by their neighbours the western goths ( who communicated with the germans in manners , laws , and customs , ) into spain ; and by the eastern goths into greece it self , and the eastern parts of europe , &c. these ( i say ) carried with them into the parts of europe , where they settled , such ancient feudal customs , as at the time of their transmigration were in use among them . but the more prevalent and more generally receiv'd customs , were those that were in use or taken up in the time of conradus the emperour , and when feuds became hereditary ; for on them especially is the feudal law grounded and composed , tho' enlarg'd oftentimes by constitutions of the emperours , and spread abroad into divers nations by their example , countenance , or authority . wherein the court of milan was chiefly followed in rebus judicatis ( as appeareth by duarenus and merula ; ) but reserving unto every nation their peculiar rights and customs . for it was generally received into every kingdom , and then conceived to be the most absolute law for supporting the royal estate , preserving union , confirming peace , and suppressing robberies , incendiaries , and rebellions . i conclude with cujacius , who upon the above-cited passages of gerardus niger , saith , quam aliam feudorum originem quaerimus ? his veluti incrementis paulatim feuda constituta sunt ; quae & post conradum usus recepit , ut transirent ad liberos mares in infinitum , &c. the military and lay-feuds being thus advanced from an arbitrary condition to become perpetual and hereditary , did now in ordinary account leave their former name of beneficia ( which were only temporary for years , or life ) unto the livings of the clergy , and retained to themselves the proper name of feuds , whereby they were produced to be perpetual and hereditary . cujacius therefore speaking of them both , saith , feudum differt a beneficio , quod hoc temporaneum fuit , illud perpetuum . and treating in another place of these beneficiarii and temporarii possessores , he saith further , iisdem postea c●pit concedi feudum in perpetuum , quod est verum , & proprium feudum . concluding in a third place , that propria feudi natura haec est , ut sit perpetua . so that cassineus in the feuds of burgundy saith , that omne feudum quocunque modo acquisitum fit haereditarium , cum successione sit redactum ad instar allodialium : that all feuds by what means soever they be acquired , are made hereditary ; in so much as by the continual succession of the children into the feuds of their fathers , the feuds are now brought to be like allodial or patrimonial inheritances . thus feudum ( which at first was but a tottering possession , ad voluntatem domini ) growing at length to be an irrevocable estate , descending by many successions from son to son , became at last to be an absolute inheritance , and thereupon the words themselves feudum and haereditas in common use of speech ( quem penes arbitrium est & jus & norma loquendi ) to be voces convertibiles , and by a fair metonymia each to signifie other . for as horace further saith , — verborum vetus interit aetas , et juvenum ritu florent modo nata vigentque . aptly therefore and truly is it said by the ever honoured justice littleton , that feodum idem est quod haereditas ; and the captious criticism of sir thomas smith ( dr. of the civil law ) in denying it , is to his own reproach : for his great master cujacius ( as before appeareth ) supporteth littleton ; and his fellow civilians do tell him , quod in feudis particularis & localis consuetudo attendenda est . and littleton received it as used in this signification from the eldest writers of our law. of the like indiscretion is that of dr. cowell , who carpeth at this ancient phrase used in the formulis of our pleading , where it is ordinarily said , rex seisitus fuit in dominico suo ut de feodo , as tho de feodo was there to be understood according to the court of milan , for praedium militare superiori domino & servitiis obnoxium ; not by the laws of england , pro directo dominio vel haereditate pura & absoluta . to conclude therefore . it appeareth by this passage of justice littleton's , joyned to that we have formerly delivered , that our law took no notice of feuds till they were become hereditary with us ; which being since the conquest ( as we have already shewed , and shall prove abundantly hereafter ) overthroweth all the arguments in the report produced for proving our feodal rites of tenure , wardship , marriage , relief , &c. to have been in use among the saxons ; for till they were hereditary , these appendances could not belong to them . it is also very improbable that feuds were made hereditary here in england before other countries ; or that the more civil nations of europe , should take example herein from our rude ( if not illiterate ) saxons . chap. iii. that none of our feodal words , nor words of tenure , are found in any law or ancient charter of the saxons . it appeareth by that which hath been said , that our modern kind of feuds could not be in use among our english saxons . and it will now be a question , whether any of our modern tenures ( or which of them ) were then in use , or not ? the report saith , it is most manifest that capite-tenures , tenures by knight-service , tenure in socage , frank-almoign , &c. were frequent in the time of the saxons . i desire that without offence , i may examine this that is so manifest , and so frequent . i confess there be many specious shews of knight-service and socage among our saxon ancestors ; but whether by way of tenure , contract , or de more gentium , must be well examined . for the romans and other nations had formerly as great command over their followers , and such as dwelt upon their lands , as our saxons had , yet was it without any rule or speech of tenure . the word tenura is neither known nor found in any latin author of antiquity , nor any conjugate thereof ( as tenentes , tenementa , tenere or tenendum ) in a feodal sense . the first place where i meet with tenere in that manner , is amongst the saliques and germans , in the constitution before mentioned of conradus the emperour , about the year , when beneficia ( which we now call feuds ) were first continued to some of the sons and grand-children of the male line of them that then enjoyed them . but i find not one of those words or any consignificant or equivalent to them , in all our saxon-laws . the word feodum , feud or fee it self , is never mentioned in them , nor is there any sound of tenure in capite , tenure by knight-service , tenure in socage , frank-almoign , &c. either in our saxon laws or in the laws of any other nation ( that i can find ) till the time that feuds began to be perpetual or hereditary ( as before is mentioned . ) it is true that in some latin charters of the saxon time , we now and then find the words tenere , tenementum , and tenendum : and in a charter of beorredus king of the mercians dated anno . the words de eodem seodo , ( as tho' lordships at that time had been distributed into feuds ; ) which being reported by ingulfus a saxon , giveth great probability that feuds were then in use . but it is to be noted , that these charters are ( as i said ) in latin and not in saxon ; and therefore not likely to be the very originals , but translations of them made after the conquest for the instruction of the normans , either by ingulf himself , or some other expert in the norman language , laws , and customs . who applying himself to the understanding of the normans , used norman words , and such interpretation as they were best acquainted with , tho' differing from the propriety of the saxon tongue ; and so perhaps translated de eodem f●odo for de eodem territorio or patrimonio ; and tenentes , tenementa and tenendum , for possidentes , possessiones and possidendum . not unlike our translators of the holy scriptures , who tell us of the arms of families , chancellors , sheriffs , recorders , townclerks , doctors of law , homage done to solomon , and of the arraignment of our blessed saviour ; as tho' the jewish and asiatick nations had in those days of old , their college of heralds , the same magistrates , officers , degrees in school , customs of law , pleas of the crown , and form of government , which we in england have at this day . by such allusions i suppose ( or illusions rather ) came our later feodal words into ancient latin charters . i desire to see but one charter in the saxon tongue before the conquest , wherein any feodal word is apparently expressed . a saxon chronicle telleth us , that king alfred in the year . gave london to ethelred ( an earl or alderman that married his daughter ethelfled ) to healdo , that is ad tenendum , which some understand feodally as to hold it of him ; but wigorniensis reports the matter plainly ad servandum , that is , to keep and defend it . so among the customs of kent , the word healder ( i. e. holder ) is used for a tenant in the saxon distich there cited . but it is to be noted , that those customs were collected long after the conquest , and therefore written in the norman tongue , not in the saxon ; and that the distich it self is not of the ancient saxon , but of a puisne dialect used vulgarly since the conquest . but because the charter of beorredus ( produced by my self against my self ) is more material for proof of feuds among the saxons , than all that is alledged to that purpose in the report ; first , in respect of the antiquity thereof ; then for that it nameth the word feodo expresly ; and thirdly , for that it declareth certain lands to be de eodem feodo , as if there were many other feods then in use : give me leave ( i beseech you ) to examine this charter yet more largely and particularly . it is therefore to be understood , that the elder saxons made their ordinary conveyance of lands , &c. without deed or writing , by delivery of a turff or spear , a staff , an arrow , or some other symboll , in token thereof . yea their very laws ( like those of the lacedaemonians called rhetra ) were unwritten ; till ethelbert their first christian king , caused his own laws to be put in writing about the year . ( as other western nations in an age or two before had done ) and as bede saith , wrote them in the saxon tongue . the first charter ( if i shall so call it ) or writing , touching lands and privileges , was ( as a ms. of canterbury reporteth ) made by withredus king of kent in the year . and ( as that charter it self witnesseth ) was appointed to be kept in the church of our saviour at canterbury , as a precedent for posterity to imitate ; and tho' it appeareth not there in what language it was written , yet i presume it was in the same with their law , which was the saxon tongue . for there be two copies of it extant in latin , so differing the one from the other , as thereby they both appear to be translations . for proof thereof , the one of them useth the words charta and chartula , which ingulfus affirmeth to be brought in hither by the normans , that is , above three hundred years after the time of this charter of withred's . the other latin copy termeth it scriptum not chartam ; and the saxons themselves used neither of those words , but called such writings in latin chirographos , not chartas ; as ingulfus there also testifieth . so that it hereby appeareth , that the prototype or first pattern of charters which the saxons imitated , was not in latin but in saxon. secondly , it is therefore to be presumed ( and very strongly ) that tho' this charter of beorredus remaineth to us by a latin copy , yet the original it self ( like a thousand others ) was in the saxon tongue . nor could it in all probability be otherwise ; for at the very time when it was made , ( viz. in anno . ) learning was so generally subverted throughout england , by the barbarous danes , that king alfred ( who began to reign within four years after the date thereof ) saith , paucissimi fuerunt cis humbrum , qui vel preces suas communes sermone anglico intelligere potuerant , vel scriptum aliquod è latino transferre . tam sane pauci fuerunt , ut ne unum quidem recordari possum ex australi parte thamesis , tum cum ego regnare occaeperam . but as their original charters were in the saxon tongue ; so in the leiger-books in which they are preserved to us , they are often set down in the saxon , and then ( because the books themselves are in latin ) they are there translated also into latin , and often times set down in the latin only without the saxon ; as in the book of ramsey-abby , which having no charters in it in the saxon tongue , the author of it saith , that himself had there translated them all into latin , after that that abby in the days of king stephen had recovered her liberty . yet i deny not , that latin charters might be often used by their latter clergy-men , when learning ( which in beorred's time was utterly subverted ) began at last to recover life again . thirdly , ( i conceive ) that the word feudum or feodum was not in use in beorredus's days , ( viz. anno . . ) for proof whereof , we are to consider the infancy , youth , and full age of the feodal law ; for according to these several times , the feodal lands had their several denominations . first , they were called munera , then beneficia , and lastly feuda ( as is aforesaid . ) marculfus , who collected the formulas ( or precedents as we call them ) of charters and instruments of the time he lived in ( which was under clodovaeus ii. king of france about the year . ) maketh mention , in his first book of munera , and in his second of beneficia ; but no where of feuda : and he who a hundred years or more after him collected the formula's incerti autoris , speaketh divers times of beneficium , but never nameth feudum : for that this term came not into use till afterwards , when these beneficia began to be granted in perpetuity . beneficium regis ( saith bignonius ) postea feudum dictum est . and in another place he saith , beneficii nomine ea praedia dicta ( sunt ) — quae feuda posteritas dixit ; initio namque vita accipientis finiebantur . as if he should say , they were called beneficia when they were granted only for life of the grantee ; but were called feuda when they began to be granted in perpetuity , and not before . cujacius therefore speaking of feudatarii , which word came into use with feudum , ( for relatives mutuo se ponunt & auferunt ) saith , that when actores , custodesque proediorum nostrorum temporarii , perpetui esse caeperunt , &c. when those who had the use and ordering of our lands for a certain time , began to enjoy them in perpetuity , and yet retained their latin name of homines ( our men , ) they grew then also to be called after new and forreign names , vassalli , leudes and feudatarii , by the princes and great noblemen ; who choosed rather to grant them lands in perpetuity , in consideration that they should do them military service . and he saith , that these names were first brought into italy by the german princes . where ( and particularly in milan , as merula reporteth ) the feodal laws and customs have had their original , and from thence been propagated throughout europe . by this it appeareth , that the words feudum and feudatarii were not in use till that the word munera was grown obsolete . nor afterward , till beneficia , leaving to be temporary or but for life , became to be perpetual possessions ; which ( as i have often said ) was not long before the conquest . so that the word feudum could not be in use in beorredus's time , who lived two hundred years before . fourthly , tho' the word feudum were in the original charter of beorredus , yet doth it not prove that our feuds were then in use . for call them beneficia or call them feuda , certain it is that neither the one nor the other were then hereditary or perpetual , but either temporary or for life only ; which at length begat the difference between feuda and beneficia , for beneficia in a restrained sense began to signifie no more than an estate for life , ( in which sense it resteth at this day in our clergy-men's livings called benefices ) and the word feuda grew to be understood only of such beneficia or benefices , as were perpetual and hereditary . to return from whence we digressed . i suppose it now appeareth sufficiently , how some feodal words are crept into charters and writings of saxon date ; and i think i may conclude , that the words before mentioned ( tenura , tenentes , tenementa , tenere or tenendum , in a feodal sense , or feodum it self ) were not in use among them . much less tenure in capite , tenure by knight-service , tenure in socage , or frank-almoign ; tho' the like services were performed to the saxon lordships , by their thanes and theodens , their socmen or husbandmen , and their beads-men or clergy-men , by way of contract for the lands received from them ; as were after the conquest to the norman lordships by way of tenure , for lands holden of them . the neapolitan and sicilian constitutions ( which had their original from princes of norman lineage ) do ..... the conquest here in england make mention of tenens , tenere , tenementum and tenere de rege in capite ; but whether the normans carried these terms into italy , when they conquer'd naples about the year . or brought them from thence into normandy , i cannot determine . certain it is , that from the normans they came to us in england ; for being not met with before in any authentick author , we presently after the conquest begin to hear of them , even about the third or fourth year of the conqueror's reign , as appeareth by his charter of emendationes legum in the red book of the exchequer , f. . b. and in lambard's archaionomia . chap. iv. of tenures in capite , more particularly . touching tenures therefore in capite , i think i may boldly say , that here were none in england in the saxons time , after the manner now in use among us . first , for that their feodal lands ( as we have shewed ) were not descendible before the conquest . for tho' there were hla●ord and ðane amongst the saxons , that is , lord and thane , or servitour , whom beyond the seas they called seigneur & vassall , alias vassallum , dominum & clientem , while their feuds were arbitrable or but for years or life ; yet grew not the words of tenure into use , till that feuds became descendable to posterities , and thereby obliged the whole succession of heirs to depend and hold upon their capital lords by the services imposed at the creation of that feud . secondly , the word in capite is like a relative in logick ; which being a supreme degree of it self , implieth some other degrees to be under it , as tenant in medio or tenant in imo , or both , viz. tenant in capite , tenant in menalty , and tenant paravale , or at least tenant in capite and tenant paravale , which inferiour tenants could not be in the saxons time , for that the granting of feuds in perpetuity ( out of which the under-tenancies must be deduced ) was ( as i have said ) not yet in use . thirdly , to hold in capite is of two sorts , the one general , which is of the king , as caput regni & caput generalissimum omnium feodorum , the fountain whence all feuds and tenures have their main original . the other special or subaltern , which is of a particular subject , as caput feudi or terrae illius , so called because he was the first that created and granted that feud or land in that manner of tenure , wherein it standeth , and is therefore at this day so to be understood by the ordinary words ( in our deeds ) of tenendum de capitalibus dominis feodi illius , &c. signifying that the lands so granted ( since the statute of quia emptores terrarum ) must now be holden mediately or immediately of him or his heirs or assigns , that was caput feodi , the first that created or granted that feud in that tenure , who thereupon was called capitalis dominus & caput terrae illius ; among the feudists capitanus feudi illius ▪ and the grantee and his heirs were said to be tenants in capite , because they held immediately of him that first granted that feud or land in that manner . hereupon david i. king of scots and earl of huntingdon here in england , was in right of his earldom ( in the time of king henry i. ) said to be capud terrae de crancfeld & craule post regem angliae . and roger de molbray about the same time or shortly after , made a grant in these words : roger de molbray omnibus hominibus & fidelibus suis normannis & anglis salutem . sciatis quod ego concessi roberto de ardenna clerico amico meo totum nemus de bedericheslea cum omnibus antiquis libertatibus & consuetudinibus ejusdem nemoris ad tenendum de me in capite & haeredibus meis ita libere & quiete , &c. sicut ego unquam , &c. the deed is without date ; but note that the direction of it is omnibus hominibus fidelibus suis normannis & anglis , which implieth that it was made before henry ii's time : for he being of anjou in france and bringing in french-men with him , altered then very properly the directions of charters into hominibus & fidelibus suis francis & anglis . yet i find the same direction , tho' more improperly , to be some time used under the norman kings . qu. so likewise ( as before ) w. marshall the great earl of pembrock , in a charter of his , useth these words about the beginning of henry iii's time ( as i take it : ) nisi fortè forinseca tenementa tenueris de me ( in ) capite . and mat. paris in an. . making mention of one g. a knight , saith , that rex memoratus ( hen. iii. ) cuidam militi tenenti de ecclesia s. albani in capite , &c. warennam concessit : where the words tenenti de ecclesia s. albani in capite , do signifie , that some abbat of the church of st. alban first created and granted that feud . having thus in general manner prepared my way to the ensuing discourse , i shall now ( god willing ) by the patience of them whom it most concerneth , examine such particular assertions , as are produced in the report , either to prove our tenures and feuds with their dependancies , to have been in use among the saxons , or to disprove what i have affirmed in my glossary , or in the chapters here precedent , and will first shew therein as followeth . chap. v. what degrees and distinction of persons were among the saxons , and of what condition their lands were . for the better understanding of our discourse , it is necessary that we should shew what degrees and distinctions of persons were among the saxons , and of what condition their lands were . touching their persons , they are by themselves divided in this manner , eorle and ceorl and Ðegn and Ðeoden . in latin comes and villanus , tainus [ unus ] & alius , singuli pro modo suo . that is to say , the earl and the husbandman , the thane of the greater sort called the king's thane , and the thane of the lesser sort called the theoden or vnder-thane . more degrees the saxons had not in their laity , and among these must all the tenures lye that were in use with them . as for their bond-men ( whom they called theowes and esnes ) they were not counted members of that common-wealth , but parcels of their master's goods and substance . touching lands among the saxons they were of two sorts , bocland and folcland . bocland signifieth terram codicillarem or librariam , charter-lands : for the saxons called a deed or charter an bec , i. e. librum , a book ; and this properly was their terra haereditaria : for it commonly carried with it the absolute inheritance and propriety of the land , and was therefore preserved in writing , and possess'd by the thanes and nobler sort , as proedium nobile , liberum & immune a servitiis vulgaribus & servilibus . in which respect the thanes themselves were also called liberales , as appeareth by canute's forest-laws ( art. . . & seqq . ) a name not well agreeing with feodal servitudes . but it seemeth by divers abby-books , that some estates for life , which we call frank tenements , were also put in writing , especially among the latter saxons . yet were not these accounted bocland ; for they were laden commonly with many feodal and ministerial services , whereas bocland ( as i said ) was free from all services not holden of any lord , the very same that allodium ; descendable ( according to the common course of nations and of nature ) unto all the sons , and therefore called gavelkind , not restrain'd to the eldest son ( as feodal lands were not at first ) but devisable also by will , and thereupon called terrae testamentales , as the thane that possessed them was said to be testamento dignus . folcland was terra vulgi , the land of the vulgar people , who had no estate therein , but held the same ( under such rents and services as were accustomed or agreed of ) at the will only of their lord the thane ; and it was therefore not put in writing , but accounted proedium rusticum & ignobile . but both the greater and the lesser thanes , which possessed bocland or hereditary lands , divided them according to the proportion of their estates into two sorts ; i. e. into inland and outland . the inland was that which lay next or most convenient for the lord's mansion-house , as within the view thereof , and therefore they kept that part in their own hands for supportation of their family and hospitality . the normans afterwards called these lands terras dominicales , the demains or lord's lands : the germans , terras indominicatas , lands in the lord 's own use : the feudists , terras curtiles or intra curtem , lands appropriate to the court or house of the lord. outland was that which lay beyond or out from among the inlands or demeans , and was not granted out to any tenant hereditarily , but , like our copy-holds of ancient time ( having their original from thence ) meerly at the pleasure of the lord. cujacius speaking of this kind of land , calleth it proprium feudum , that is to say , such land as was properly assigned for feodal lands . proprium feudum est ( saith he ) extra curtem , & consistit in praediis . as if he should say , that land properly is a feud or feudal land , which lyeth without the demains of the mannour , and consisteth in land not in houses . we now call this outland the tenants land or the tenancy , and so it is translated out of biritrick's will in the saxon tongue . this outland they subdivided into two parts ; whereof one part they disposed among such as attended on their persons either in war or peace , ( called theodens or lesser thanes ) after the manner of knights fees ; but much differing from them of our time , as by that which followeth shall appear . the other part they allotted to their husbandmen , whom they termed ceorls ( that is carles or churles . ) and of them we shall speak farther by and by , when we consider all the degrees aforesaid ; beginning with the earl. chap. vi. of earls among our saxons . an earl , in the signification of comes , was not originally a degree of dignity , as it is with us at this day ; but of office and judicature in some city or portion of the country , circumscribed anciently with the bounds of the bishoprick of that diocess ; for that the bishop and the earl then sat together in one court , and heard jointly the causes of church and common-wealth , as they yet do in parliament . but in process of time the earl grew to have the government commonly of the chief city and castle of his territory , and withal a third part of the king's profits arising by the courts of justice ( fines , forfeitures , escheats , &c. ) annexed to the office of his earldom . yet all this not otherwise than at the pleasure of the king ; which commonly was upon good behaviour , and but during life at most . this is apparent by the severe injunction of king alfred the great ( labouring to plant literature and knowledge amongst the ignorant earls and sheriffs of his kingdom ) imposed upon them , that they should forthwith in all diligence apply themselves to the study of wisdom and knowledge , or else forgoe their office. herewith ( saith asser menevensis who lived at that time and was great with the king ) the earls and sheriffs were so affrighted that they rather choose insuetam disciplinam quam laboriose discere , quam potestatum ministeria dimittere , that is , to go at last to the school of knowledge , how painful soever , rather than to lose their offices of authority , and degrees of honour ; which alfred there also declareth , that they had not by inheritance , but by god's gift and his ; dei ( saith he ) dono & meo , sapientium ministeria & gradus usurpatis . this is manifest by divers other authorities and examples in my glossary ( in verbo comes ) as the reader , if he please , may there see . some conjecture , that deira and bernicia in northumberland , and mercia in the midst of england , were feudal and hereditary earldoms in the saxon times . those of northumberland presently after their first arrival under hengistus , about the year . that of mercia by the gift of alfred the great ( about the year . ) to ethelredus , a man of power , in way of marriage with his daughter ethelfleda : but for ought i see it is neither proved by the succession of those earldoms , nor our authors of antiquity . for my own part , i think it not strange , that there was not at the entry of the saxons a feudal and hereditary earldom in all christendom . as for this our britain , the misery of it then was such , as it rather seemed an anarchy and chaos , than in any form of government . little better even in alfred's days , through the fury of the danes ; tho' he at last subdued them for his time . how soever three or four examples in five hundred years before the conquest differing from the common use , is no inference to overthrow it , especially in times unsettled and tumultuous . the noble earldom of arundel in our days of peace , differeth in constitution from all the other earldoms of england ; yet that impeacheth not their common manner of succession . loyseau and pasquier , learned frenchmen , speaking of the dukes and earls of france , which england ordinarily followeth ( and sometimes too near the heels ) justifie at large what i have said ; shewing the dukes and earls in the roman empire ( from whose example others every where were derived ) were like the proconsuls and presidents of provinces , simple officers , who for their entertainment had nothing else but certain rights and customs raised from the people ( which we in england called tertium denarium . ) and that the dukes and earls of france were officers in like manner , but had the seigneurie of their territory annexed to their office : so that they were officers and vassals both at once , ( that is to say ) officers by way of judicature , and vassals ( whom we call feodal tenants ) for their seignories of dukedoms and earldoms . but ( say they ) tenue neant moiens en fief a vie , &c. holden notwithstanding as a fief for life , not hereditary nor patrimonial in the beginning , as afterward they were . this change they assign to have been begun about the end of the first line of their kings ; who being at that time weak and simple men , the dukes and earls took opportunity to make their estates hereditary . but it continued not long ; for the first kings of the second line reduced them presently to conformity . yet some there were in the remote provinces , that maintain'd themselves hereditary in despight of the kings , whereupon ensued many wars . thus far both these authors do concur , and then loyseau addeth further , that at the end of the second line , hugh capet having made himself king of france , permitted all to hold their dukedoms , earldoms , and seigneuries hereditarily ; and taking homage of them as of hereditary fiefs , each party obliged themselves to support the other and their posterity in those dignities as hereditarily . this happened in france a little before the conquest of england , and from this precedent of hugh capet's did our william the conquerour make the earldoms and feuds in england first hereditary , as we have already shewed in the second chapter . so that i conclude ( as i assumed in the beginning ) that the saxon earldoms were not hereditary , nor otherwise feodal ( if we shall so term them ) than for life , whereon neither wardship , nor marriage , &c. could depend . yet i confess that the dukes and earls of the saxon times both had and might have great possessions in other lands as patrimonial and hereditary , namely their thaneland : and in what condition they possessed them , it shall appear anon , when we come to speak more at large of thanes and thane-lands . chap. vii . of ceorls ; and that they were ordinarily but as tenants at will , or having lands held not by knight-service . the division before mentioned , which the saxons made of their own degrees , leadeth me in this next place ( tho' not orderly ) to speak of the ceorle ( that is of the carle or churle ) and husbandman . the ancients called him in latin villanus , not as we ordinarily take it for a bondman , but for him that dwelling in a village or country town , lived by the country course of husbandry . mr. lambard therefore ( to decline the misconceiving of the word villanus ) doth render it in the saxon laws by paganus , which signifieth the same that villanus doth , according to the french for a villager , but not according to our english for a bondman . our saxons otherwhile did term them , like the dutchmen , boors , that is , such as live by tilth or grasing , and by works of husbandry . such were the ceorls among the saxons ; but of two sorts , one that hired the lord's outland or tenementary land ( called also the folcland ) like our farmers : the other that tilled and manured his inland or demeans , ( yielding operam not censum , work and not rent ) and were thereupon called his socmen or ploughmen . these , no doubt , were oftentimes his very bondmen ; i therefore shall not meddle with them , but will hold me to the first sort , who having ordinarily no lands of their own , lived upon the outlands before mentioned of their lord the thane , as custumary tenants at his will , ( after the usual manner of that time ) rendring unto him a certain portion of victuals , and things necessary for hospitality . this rent or retribution they called feorme , but the word in the saxon signifieth meat or victuals ▪ and tho' we have ever since henry ii's time , chang'd this reservation of victuals into money , yet in letting our lands , we still retain the name of fearms and fearmers unto this day . the quantity of the fearme or rent for every plough-land , seemeth in those times to have been certain in every country , according to the nature of the place . king ina in his laws did make it so through all the territory of the west-saxons , as you may see ( with much more touching this matter ) in my glossary , verbo firma . but insomuch as the chiefest part of the fruit and profits of the lands thus manured by the ceorls or husbandmen , redounded to the benefit of their lords and not of the ceorls themselves ; the romans counted them to be as bondmen and not freemen . caesar therefore speaking of them while they were yet in germany , saith , plebs pene servorum habebatur loco : that their common people were in a manner bondmen . and tacitus to the same purpose , caeteris servis ( meaning these ceorls or husbandmen ) non in nostrum morem descriptis per familiam ministeriis utuntur ; suam quisque sedem , suos penates regit . frumenti modum dominus aut pecoris aut vestis , ut colono , injungit . et servus hactenus paret . but this service was no bondage . for the ceorl or husbandman might as well leave this land at his will , as the lord might put him from it at his will : and therefore it was provided by the laws of ina in what manner he should leave the land when he departed from it to another place . and the writ of waste in fitz-herbert seemeth to shew that they might depart if they were not then well used . it is apparent also that the ceorl was of free condition , for that his person was valued as a member of the common-wealth in the laws of aethelstan , and his least valuation is there reckoned to be s. whereas the bondman was not valued at all , for that he was not ( as i said ) any part of the common-wealth , but of his master's substance : nor was he capable of any publick office . but the ceorl ( tho' he had no land ) might rise to be the leader of his country-men , and to use the armour of a thane or knight , viz. an helmet , an habergeon , and a gilt sword. and if his wealth so increased as that he became owner of five hides of land , the valuation of his person ( which they call'd his were or weregild ) was increased to two thousand thrimsas , that is six thousand shillings , and being then also adorned with other marks of dignity , he was counted for a thane ; as you shall see in the next chapter . but ( for all this ) a ceorl or husbandman ( tho' he were a freeman ) was not by the feodal law of that and later times , capable of a knights-fee , or land holden by military service ; and therefore what land soever he purchased , was to be intended land of no such tenure . and it appeareth further by the laws of aethelstan , that the five hides of land ( before mentioned ) purchased by the ceorl , were descendable to his posterity ; which sheweth also that they were not feodal land , for that feuds at that time were not here descendable , as we have often declared . so that i hope i may conclude , that the ceorls or husbandmen among the saxons held no land by our tenure of knight-service . chap. viii . of thanes , and their several kinds . seeing then the weight of the question will rest wholly upon the thanes , we must consider them the more diligently , first in the quality of their persons , secondly in the tenure of their lands . a thane was ( in like manner as the earl ) not properly a title of dignity , but of service : so called in the saxon of ●enian servire , and in latin minister à ministrando . but as there be many degrees of service , some of greater estimation and some of less ; so those that served the king in places of eminency , either in court or common-wealth , were called thani majores and thani regis ; and those that served under them in like manner as under dukes , earls , and other great officers of the kingdom , and also under bishops , abbats , and the greater prelates of the church , were called thani minores , or the lesser thanes . and as the titles of honourable office and service in dukes , earls , &c. became at length to be made hereditary ; so this of thanes , like our titles of noblemen and gentlemen , descended at last with their fathers land upon their children and posterity . and continued thus till after the conquest , as appears by some writs and charters of the conquerour . buchanan describing the quality of their persons , calleth them , praefectos regionum sive nomarchas & quaestores rerum capitalium , governours of places , principal ministers of justice , chequer men , sheriffs , &c. but we will take them as the saxons themselves describe them in the place before mentioned , where it thus followeth , gif ceorl geðeah ꝧ he hefde fullice fif hyda agenes lande , &c. if a churl or husbandman thrive , so that he had fully five hydes of his own land , a church and a kitchin , a bell-house , and a gate-house , a seat and a several office in the king's hall ; then he was from thenceforth worthy of the rights of a thane : meaning ( as i understand it ) he was then one of the greater thanes or king's thanes . for the lesser thane is by and by described also in that which followeth , viz. and gif ðegen geðeah , &c. and if a thane himself so prospered that he served the king , and ridd upon his message as others of his court , and then had a thane ( i. e. an under or lesser thane ) that followed him , which had five hydes ( or plough-land ) chargeable to the king's expedition , and served his lord in the king's court , and had gone thrice upon his errand to the king : he ( this under-thane ) might take an oath instead of his lord , and at any great need supply the place of his lord. and if a thane did so thrive as he became an earl , he had the rights of an earl. and a merchant might become a thane , &c. mr. lambard conceiveth this place to discover but three degrees among the saxons , viz. earls , thanes and ceorls , not admitting the under-thane to be a several degree . the words seem otherwise , and the saxon division before recited maketh four degrees , earl , ceorl , thegn and theoden or under thane . some therefore distinguish thanes into majores and minores , some into majores , minores ( otherwise called mediocres ) and minimi , whom canutus in his forest-laws calleth minuti and tinemen . i dare not venture to define them particularly , but will rest upon the saxon division first mentioned , which i find to be pursued by norman terms in the laws of edw. confess . and william conq. delivered by ingulfus , viz. count , baron , valvasor , and villain . where he placeth count instead of earl , baron instead of kings-thane , valvasor instead of theoden or lesser thane , and lastly villain instead of churl . as though the division both of the saxon and norman times did hold analogy one with the other , and both of them with ours at this day , viz. of earls and barons of the kingdom , including the greater nobility , barons of towns and mannours ( including the lesser nobility or gentry ) and that of our yeomen including the husbandmen . to return to the thanes . this saxon passage hath per transennam shew'd unto us , not only the quality of their person , but the nature of their land , whereupon all our question doth depend . and true it is , it sheweth that both they and it were subject to military service , call'd in latin expeditio , in saxon utfare and ferdgung , and in foreign nations heribannum , that is the calling forth of an army . and it appeareth by an ancient ms. of saxon laws in the kings library , that the thanes were not only tyed to this , but to many other services to be done unto the king , and that in respect of their land , which notwithstanding bred no tenure in capite or by knights-service . the words be these , tbani lex est , ut sit dignus rectitudine testamenti sui , & ut tria faciat pro terra sua , expeditionem , burghbotam & brugbotam , & de multis terris majus landirectum . exurgit ad bannum regis , sicut est deorhege , ad mansionem regiam , & sceorpum in hosticum , & custodiam maris , & capitis , & pacis , & elmesfeoh , & ciricsetum , i. e. pecunia eleemosynae , & ciricsceatum , & aliae res . thus in english . the law touching a thane is ; that he have power to make a will , and that in respect of his land he shall do three things , viz. military expedition , repairing of castles , and mending of bridges , and for more lands to do more land-duties . to go forth upon the king's summons to the enclosing of his park and mansion-house , and to * ..... into the enemies lands , and to defend the sea , his own head , and the peace , to pay alms-monies , church-seeds , church-shots , and other things . what is there in all this to shew either a tenure in capite or by knight-service ? it will be said that the military expediton , and warding of the sea against enemies , imply a tenure by knight-service , and that those and the other services being to be performed to the king , ( and upon the king's summons ) shew a tenure in capite . and no doubt , so would it be for lands given in this manner by the king since the conquest . but i conceive that none of all this riseth out of any tenure , or feodal reservation made by the saxon kings in granting these lands , or by any particular contract agreed of by the thane or subject in accepting them , but out of a fundamental law or custom of the kingdom , ( as ancient as the kingdom it self ) whereby all the land of the whole kingdom was oblig'd to this trinodae necessitati , of military expedition , and building or repairing of castles and bridges ; so that if this made a tenure by knight-service in capite in the thane lands , then must it follow also , that all the land of the kingdom was likewise holden by knights-service in capite : for it was wholly tyed to those three services , as appeareth in the council of eanham , ( cap. . . ) where they are commanded to be yearly done . and by the laws of canutus ( cap. . . ) where they are appointed to be done as necessity requireth . and also by the law of king ethelred , who about the thirtieth year of his reign , ordain'd , that every eight hides or plough-land through the whole kingdom , shall find a man with a crosset and helmet to the naval expedition . and every three hundred and ten plough-lands , an ordinary ship . for these purposes , was the whole land formerly divided , either by alfred the great or some other precedent king , into . hydes or plough-lands , and according to this division were the military and other charges of the kingdom impos'd and proportion'd , without ever any mention of tenures in ●●●ite or by knight-service . hence it rose that the saxon kings in granting o● lands , liberties , and priviledges unto ecclesiastical persons and others , were usually so careful in reserving expedition , burghbote and brigbote , as you may see in the charters of king withred , ina , aethelbald , aethelwulph , edgar , &c. in the britain councils , as also in the charters here following , and in a multitude of others elsewhere besides . neither did this military expedition otherwise at that time bind the saxons to a tenure in capite or knight-service , then it doth us at this day in the naval expedition lately now reviv'd . for better manifestation that thanelands were subject to no feudal service , consider , i pray you , the words of the saxon passage before mention'd , where it is said that a thane must have three hydes at least of his agenes lande , i. e. of his own land , not terrae emphiteuticariae , or precariae , not usu-fructuariae , or feodatariae , but as a latin copy hath it terrae suae propriae , where the word propriae carrieth another sense than is ordinarily conceiv'd , as to signifie in this place , land wherein no other man hath any interest by feodal superiority or dominion , but whereof himself hath meram proprietatem , the sole and absolute propriety ; even the same alodium that is spoken of in the report , and which no man hath or can have now at this day , but the king's land holden of no man in the feodal sense , ( for the phrase of tenure was not then in use amongst the saxons ) nor ty'd any man to do any feodal service . another old latin ms. therefore reciteth the same saxon passage in these words , si villanus ( so they at that time call'd a husbandman ) ita crevisset sua probitate , quod pleniter haberet quinque hidas de suo proprio alodio , &c. dignus erat honore liberalitatis , quod angli dicunt Ðanescipes surðe : si autem liberalis homo , . Ðegen [ thanus ] ita profecisset ut regi servisset , & vice sua equitaret in missatico regis , hic talis si haberet alium [ thanum ] sub se , qui ad expeditionem regis quinque hidas teneret & in aula regis domino suo servisset , &c. here i must say with cujacius , speaking of the author of the second book of feuds : proprietatem [ alias ] vocat quod hic alodium : noting thereby that proprieta● and alodium are synonima , signifying land free from all feodal service and holden of no body . yet in that sense alodium is here said to be terra ad expeditionem regis , land oblig'd to the warfare of the king. i must note also by the way , that he that thus translated the saxon passage by the words , qui ad expeditionem regis quinque hidas teneret , follow'd the manner which before we spake of , in rendring saxon customs by norman phrases . the reader perhaps will here understand teneret in the feodal sense , for to hold of his lord , whereas in the saxon book the words are no otherwise than gif he he●de , i. e. if he had five hydes of land , so that teneret here is no otherwise to be taken than for possideret . to return to our purpose . thaneland might no doubt be tyed to do military service or knight-service , and yet not holden in capite or by knight-service ; for it is one thing to hold by knight-service , and another to be tyed to do it . no man holdeth , that hath not tenementum or tenementale quiddam : but a man might be tyed to do this military expedition for his personal estate ( tho' he had no land ) or for his very person it self , as appeareth by the laws of king ina , cap. . where it is said gif se siðcundman , &c. if the sithcundman having land forbeareth to go the expedition , he shall forfeit his land and s. and if he have no land yet he shall forfeit s. and an husbandman ( who if he had land was but tenant in socage according to our law ) s. it appeareth also by many charters of the saxon kings that thane lands were not feodal , and that the military expedition mde no tenure by knight-service . give me leave therefore to produce some of them , that you may see thereby the use of those times , and what the kings themselves conceiv'd therein . chap. ix . charters of thane-lands granted by saxon kings , not only without mention of tenure or feodal service , but with all immunity , except expedition , &c. ego eadwigh monarchiam totius britanniae insulae cum superno juvamine obtinens , cuidam meo fideli ministro , vocitato nomine aelfwine , duas mansas & dimidiam tribuo perenniter illic ubi antiquorum hominum relatu nominatur at schylfhinghatune , habeat quam diu vivat , & post cui voluerit impertiat , cum his rebus quae sibi rite pertinent tam in magnis quam in minimis . sit haec donatio immunis a servitute mundana , excepto illo labore , qui communis omni populo videtur esse ( not naming expeditione , &c. but concluding ) si quis augeat , augeatur . si quis minuat , careat praemio aeterno , &c. so that here he was freed a servitute mundana both great and small , that was incident or inherent to the land by way of tenure , and yet he was chargeable to military expedition , and to the repairing of bridges , castles , burroughs , and fortifications , but that not otherwise than as all the land of the kingdom was charg'd , ( as before we have shew'd ) . regnante in perpetuum domino nostro , &c. ego eadgarus rex anglorum , caeterarumque gentium in circuitu persistentium gubernator & rector , cuidam fideli meo ministro vocato nomine alur . modicam muniminis mei partem terrae , i. e. in dorset . & tres perticas in illo loco , ubi anglica appellatione dicitur at lonk , ut habeat ac possideat quamdiu vivat , & post se unum haeredem , quicunque sibi placuerit , derelinquat . sit hoc praedictum rus liberum ab omni malorum obstaculo cum omnibus ad rus rite pertinentibus , campis , pascuis , pratis , sylvis ; excepto communi labore , expeditione , pontis & arcis constructione . si quis vero hominum hanc meam donationem cum stultitiae temeritate jactando infringere tentaverit , sit ipse gravibus per colla depressis catenis inter flamivomes tetrorum doemonum catervas , nisi prius ad satisfactionem emendare voluerit . istis terminis haec tellus ambita videtur : Ðis is þe landgemark at lonk , &c. haec charta scripta est anno dominicae incarnationis , . mundi denique status christi moderatoris disponente , &c. ego ethelredus totius albionis basileus , cuidam mihi obsequentium aethelwoldo vocitatione , pro ejus placabili obsequio quandam terrae particulam , i. e. decem manentia in loco quem coloni maningforde appellant in perpetuam concedo haereditatem , quatenus ille bene perfruatur ac prospere possideat quamdiu presenti fruitur vita , & post vitae suae terminum cuicunque sibi placuerit haeredi derelinquat . sit autem praesata terra liberrima ab omni munduali obstaculo , cum omnibus ad eam pertinentibus in campis & pascuis pratisque ac cursibus aquarum , tribus tantummodo causis exceptis , i. e. expeditione , pontis arcisve restauratione . si quis autem hanc donationem pervertere studuerit , perpetuae maledictionis incurrat reatum , & gehennae aeternum sustineat incendium nisi mortis ante exitum hanc praesumptionem emendare curaverit . istis terminis ambitur praefata tellus Ærst of eastreƿeardan , &c. so king ethelred in the charter to his thane sealwyne , granteth five cassatos in readdn , cum omnibus , &c. cuicunque sibi libuerit cleronomo direlinquat haereditate , &c. sit autem istud praefatum rus liberrimum ab omni mundali obstaculo in magnis ac modicis , campis , pascuis , pratis ; tribus tantummodo rationabiliter rebus exceptis quae usuali ritu observantur , i. e. cum glomerata sibi expeditioni compulerit populari commilitonum confligere castra , atque cum sua petivit pontis titubantia muniri vada : ac cum concinni turma urbium indigent muniri stabiliter septa , &c. dat. anno dominicae incarnat . . indict . . in nomine dei almi & agiae sophiae , &c. idcirco ego cnute rex , anglorum gubernator & rector , quandam ruris portionem , decem & septem viz. terrae mansas illo in loco ubi jamdudum solicolae illius regionis nomen imposuerunt at abbodesbury meo fideli ministro , quem notis affines orc appellare solent , in perpetuam confirmo haereditatem quatenus ille bene perfruatur ac perpetualiter possideat quamdiu deus per suam ineffabilem misericordiam vitam illi & vitalem spiritum concedere voluerit , deinde namque sibi succedenti cuicunque voluerit cleronomi jure haereditario derelinquat , ceu supra diximus in aeternam haereditatem . maneat igitur hoc nostrum donum immobile aeterna libertate jocundum cum universis quae ad eundem locum pertinere dinoscuntur tam in magnis quam in modicis rebus , in campis , pascuis , pratis , rivulis , silvis , aquarumque cursibus . excepto communi labore quod omnibus liquide patet , viz. expeditione , pontis constructione , arcisve munitione . si quis autem , &c. and king edward the confessor granting duas mansas & dimidiam in wudeton , &c. to thola ( widow of the foresaid orc , whom in a saxon charter he calleth his man , that is his thane ) saith thus : in aeternam haereditatem concedo quatenus illa habeat & perpetualiter possideat hanc meam regalem donationem quamdiu vivat , & post obitum suum cuicunque voluerit haeredi relinquat . sit autem praefatum rus liberum ab omni seculari gravedine tam in magnis quam in modicis rebus , in campis , pascuis , pratis , silvis , aquarumque decursibus ; tribus exceptis quae omnibus hominibus communia sunt , viz. expeditione , pontis , arcisve restauratione . after all these , i will yet add one other of king eadgar's , having somewhat of note above the rest , as anon we shall observe . it was made to the new monastery of hide near winchester in these words . annuente altitoni moderatoris imperio , &c. ego edgar totius britanniae basileus quasdam villas ut nominantur , dunketone habens quinque hidas terrae & ecclesiam , sueyse cum . hydis terrae , &c. concedo in puram & perpetuam eleemosynam novae wintoniensi ecclesiae beato petro apostolorum principi dicatae , &c. cum omnibus utensilibus , pratis , viz. pascuis , rivulis , aeterna largita sint haereditate , &c. sint autem praedictae villae , rus , mansiones , terrae , rivuli , omni terrenae servitutis jugo liberae imperpetuum , tribus exceptis , rata viz. expeditione , pontis arcisve restauratione . si quis autem hanc nostram donationem in aliud quam constituimus transferre voluerit , privatus consortio sanctae dei ecclesiae , aeternis baratri incendiis , &c. puniatur , &c. whatsoever the phrase be in the saxon original , ( for i take this to be a translation of the norman time ) it here maketh the lands to be given in franckalmoign , but without mention of tenendum , and yet sheweth that they were tyed to expedition , &c. yea , and calleth it notwithstanding puram eleemosynam , whereas tho' in libera eleemosyna a rent in old deeds hath sometime been reserv'd , yet can it not be called pura , if any rent or service at all were reserved to the donor . i have recited these charters the more at large for that they apparently discover by many reasons ( which we shall set forth in the next chapter ) that the thanes possess'd not their thane-lands either by any feodal service or by way of tenure . chap. x. observations upon the precedent charters , shewing that the thane-lands or expedition were not feodal or did lye in tenure . these charters present unto us the general manner of granting and possessing of thane-land among the saxons during the time of their monarchy , 'till the very coming of the normans . and there is to be observed in them ( as in other before mention'd ) what hereafter followeth . first , that the word thane which is here and usually interpreted minister , ( that is an officer or servant , of ðenian servire ) noteth nothing belonging properly to the war , and is not therefore to be understood as bracton fancieth the word barones to be quasi robur belli , or to import any matter either of feodal service or of tenure . secondly , that ( as we have formerly observed upon other charters ) so there is not in any of these now produced , one word either of tenure or of feodal signification , which presently after the conquest became innumerable , as brought in by the conquerour . yet well may it be , that edward the confessor ( having his education in normandy ) might ( as travellers use to do ) bring some norman words and manners into england . thirdly , that instead of tenere and tenendum ( by which the norman feudists implied a clientary if not servile dependance , that the tenant hath upon the lord ) the saxons used habeat , possideat , fruatur , or perfruatur ( and elsewhere gaudeat ) words of freedom and immunity . so likewise for tenementa ( signifying things holden of a superior proprietary ) they used mansas , manentia , and mansiones à manendo , ( as places of abode ) or casatas à casa , for a dwelling-house , otherwise call'd hyda , quasi tectum à tegendo , including under these names all the lands that belong'd thereunto . and those that dwelt upon those mansas , &c. they called not tenentes ( holders ) as we do , but manentes , as persons abiding there . all the foresaid words being of the middle-age-dialect , not appropriated to the feodal language . fourthly , in granting of feuds and feud lands , the consideration is allways for matter de futuro , as pro homagio & servitio habendo . but here in granting these thane-lands , the consideration is for service past or present , signified by the quality of the thane , as fideli ministro meo , or pro placabili obsequio , not only without reservation of any future service , but with express immunity from all services : as , to use the words of the charters themselves , . ut sint libera vel immunia à servitute mundana . . ab omni malorum obstaculo . . liberrima ab omni munduali obstaculo . . liberrimum ab omni munduali obstaculo in magnis & modicis . . aeterna libertate jocundum . . liberum ab omni seculari gravedine . such was the freedom of these thane-lands , equal and no less than that of the lands given in franck-almoigne by king edgar in the last cited charter , which are there said to be omni terrenae servitutis jugo liberae imperpetuum . fifthly , the feodal lands might not be aliened without licence : but the thane by the very words of his original charter , might grant them cuicunque voluerit . sixthly , a feodal tenant or tenant by knights-service ( as we call him ) could not devise his land by will before the statute of . hen. viii . tho' it were with licence of the lord and of the king himself , ( which law the germans themselves do hold even unto this day . and the danes can yet devise no land by will ( as i am informed ) but the thane might devise his thane-land to whom he would , as appeareth b● the words of king edward the confessor in a charter to thola , where he saith , possideat hanc meam regiam dona●●onem quamdiu vivat , & post obitum suum cuicunque voluerit haeredi relinquat ; excluding hereby all title of wardship and feodal duties . to the same effect are the rest of the charters , and therewith agreeth the priviledge of a thane before mentioned , thani lex est ut sit dignus rectitudine testamenti sui . as for that passage in the will of brictrick the saxon , where he seeketh his lord s consent that his will may stand , i conceive it to be in respect of some ●o●●land or custumary land , which according to the use of that time he held at the will of his lord , and not in respect of any thane-land . for tho' this brictrick were a man of great possessions , yet was he none of the chiefest sort of than●s called the king's thanes , but as appeareth by his will , an under-thane belonging to aelfric , who was earl of mercia . and how far the priviledge of these under or lesser-thanes extended , i cannot yet determine . seventhly , if thane-land were of the nature of lands holden by knight-service , then by the feodal law of that time it could not transire a lancea ad fusum , that is , it might not be granted to women ; for women were not then , nor long after capable of feodal land . but the land here granted to thola was thane-land , as appeareth by the very words of her charter ; for that it is granted in aeternam haereditatem perpetualiter possidendam , which words ( making an estate of inheritance ) were only proper to thane-land otherwise called bocland ; not to folcland or popular land , which was but at will of the lord for years or for life . eighthly , there could no tenure nor service lye upon the thane-lands , other than what was expressed in the charters . for in the end of every of them there was an horrible curse ( which in those days was fearfully respected ) laid by the king himself upon all those that should violate the charter , ( either by adding other incumbrances , or by diminishing the granted immunities . ) so that it is not to be supposed that there was any lurking tenure , or matter of plus ultra to impeach them . the curse beginneth in every of the charters with these words , si quis autem , &c. ninthly and lastly , touching expedition , and repairing of castles and bridges , which the saxons called burghbote and brugbote , tho' the two first of them be wholly military , and the last serving as well for the passage of the king's army as for the trade and commerce of his people ; yet were none of them either marks of tenure or of feodal service , as appeareth by that we have formerly shew'd , and by the testimony of these charters , where ( to use the words of edw ▪ the confessor in that to thola ) it is said that they are , omnibus hominibus communia , a common burthen to all men , as belonging to the safety and sacred anchor both of the kingdom and common-wealth . the saxons therefore did not call them services or feodal duties , as things that lay upon the person of the owner ; but landirecta , rights that charg'd the very land whosoever did possess it church or lay man. and these duties were ordinarily excepted in every charter , not for that they should otherwise be extinguished , but per superabundantem cautelam , lest the general words precedent should be mistaken to involve them and to release that which the king could not release . for tho' ethelbald by his charter to the monks of croyland did give the site of that monastery , with the appendancies , &c. libera & soluta ab omni onere seculari in perpetuam el●emosynam , yet in his charter of priviledges granted to all churches and monasteries of his kingdom , speaking of the repairing of castles and bridges , he confesseth and saith , that nulli unquam relaxari possunt . and i suppose that the word expedition was here omitted by the negligence of the scribe ; for i never find it severed from repairing of castles and bridges in any other charter . and also tho' king ethelwulf by his memorable charter of priviledges ( ratified by the great council of winchester in the year . ) did by express words free sanctam ecclesiam , that is all the churches and monasteries of his kingdom , ab expeditione & pontis extructione & arcis munitione , yet the whole clergy about the year . did notwithstanding voluntarily assist his son beorredus against the danes with all the power they could , as appeareth by the charter of the same beorredus . chap. xi . more touching the freedom of thane-land out of doomsday . tho' that which is delivered in these charters be authentical and need no farther proof , yet to convince broad spreading errors the more manifestly , it will not be unnecessary to shew what doomsday it self relateth to confirm it . for whereas lands holden in capite and by knights-service , could not otherwise be disposed than by licence of the king or superior lord , doomsday sheweth that the thane-lands might be used and disposed at the pleasure of the owner , without impeachment of any other . for at ebsa in suthry under the title of ric. fil . comitis gisleberti , it saith , hanc terram tenuerunt novem teigni & cum ea poterant utere quo volebant . plain latin , but the sense is , that nine thanes held this land of ebsam ( in the time of edward the confessor ) and might do with it what they would . so at est-burnham in buckinghamshire under the title of milo crispin , duo teigni homines brictrici hanc terram tenuerunt , & vendere potuere : and here it seemeth that these thanes were not the kings thanes , but of the lesser sort ; for that he calleth them homines brictrici . so in the same shire under the title of s. petr. westmon . it is said of the same town of est-burnham : hoc manerium tres treigni tempore regis edwardi tenuerunt , & vendere potuerunt . it there also appeareth that the thane-land might be charg'd with a rent issuing out of it , for it immediately followeth , & tamen ipsi tres reddiderunt quinque oras de consuetudine . and it might be restrain'd from alienation , as where it is said in doomsday , de ea ( viz. lega pelton ) sunt in dominio duae hidae ; una ex hiis fuit tainland , non tamen poterat ab ecclesia separari . where the word tamen implyeth , that altho' thane-lands might otherwise be alienated , yet this particularly could not . so likewise might it be entailed upon a family , as appeareth in the laws of alured cap. . but thus doomsday after the conquest affirmeth the same that the charters did before the conquest . and the words both in the one and the other , which shew that the thane might sell or use this land as he would , do imply an estate of inheritance independant of any lord either feodal or superior , and was as even the alodium mentioned in the chapter of thanes ; but whether it were descendable only upon the eldest son , or dividable between all the sons as in gavelkind , i cannot say , but the formula of alodium join'd with marculfus doth divide it between them all . chap. xii . the fruits of feodal tenures , and that they were not sound among the saxons , or not after our manner . hitherto we have sought our tenures among the saxons , and have not found them , tho' the report telleth us , it is most manifest that they were frequent and common in the times of the saxons . we will now follow the direction of our saviour , and see if by the fruit we can find the tree . the report saith , ( by question and answer ) the fruits of the tenure viz. in capite and knights-service ) what are they ? but the ( ) profits of the lands . ( ) wardship . ( ) livery . ( ) primier seisin . ( ) relief , mistaken to be an heriot . ( ) fine for alienation and the rest : which rest it supplyeth shortly after to be ( ) homage . ( ) fealty . ( ) escuage : adding again relief and wardship , instead whereof i out of a third passage do place ( ) escheats . and it concludeth that as all these tenures were common in those times , so were all the fruits of them , &c. which if it be true the question is determined ; nay , i yield it , if any one of them agreeing directly with our tenures be found amongst them ; some shew of fealty and licence to alien lands granted for a certain time , only excepted , for avoiding captious disputation . their very names pretend no saxon antiquity , but as the ephramites bewrayed their tribe by their language , so by their names these fruits discover themselves to be of norman progeny . and the report doth not give us one instance or example of any of them in all the saxon times . if it did , the words before mention'd in the charters to the thanes , declaring that their land must be libera ab omni seculari gravedine , &c. sweep all away at once as the west-wind did the grashoppers in egypt , and do make the thane-lands to have the priviledge of alodium ( here before mention'd ) to belong unto them , that is , to be free from all tenure and service . it is true notwithstanding that both the greater and lesser-thanes might have , and had other lands ( besides these that were hereditary ) of feudal nature and holden by military service ( as in the charter of oswald the bishop shall after appear : ) but they holding them like folcland only at the will of the lord ( whether king or other ) or for certain years , or at most for life or lives , their tenure and feuds determin'd with the will of the lord , the term of years or estate for life . and then could not any of the fruits before spoken of , accrue unto the lord that granted the land , for that it forthwith reverted intirely into his own hands , and was to be kept and dispos'd a-new as pleas'd him . it is apparent therefore by this general demonstration , that the fruits we speak of , could not arise out of either of the thane-lands , ( were they temporary or hereditary ) if not haply fealty or some gratuity to the lord for licence that the temporary tenant might assign his interest or have it enlarg'd , ( things proper as well to socage and folcland as to feudal . ) but let us examine all these fruits particularly , and see whether and how we find any of them among the saxons ; and give me leave herein to produce them in such order ( tho' not logical ) as the report presenteth them to the reader in their several places . chap. xiii . no profit of land by wardship in the saxons time . as for the profits of the land which the king hath now during the minority of a ward , it is manifest that the kings then had no such of the thane-lands ; for that the thane had this particular priviledge , that when he dy'd he might make his will of his own lands ( as it formerly appeareth ) and give them unto whom he would , which was never lawful after the coming of the normans , for any baron or tenant by knight-service to do ; till the statute . hen. viii . cap. . gave free liberty to all men to devise all socage-land by their last will in writing , and no more than two parts only of land holden in capite or by knight-service , least it should hinder the lords too much of their feodal profits . and socage-lands were therefore long before devisable in many burroughs , for that thereby the lord sustain'd no such prejudice . but to conclude this point in one word , it shall ( i hope ) be made manifest in the next chapter , that there were no wardships amongst the saxons , and thereupon it will follow invincibly there could be then no profits of lands arising to the king or lords by title of wardship . chap. xiv . no wardship in england amongst the saxons . objections answered . in following the report i must now speak de causa post causatum ; of wardship after the profits of land growing by it . this being the chiefest fruit of all feodal servitudes , and the root from whence many branches of like grievances take their original ; the report laboureth more to prove it to have been in use among our saxons , than it doth in all the rest of them , and enforceth me thereby to the greater labour in examining it , and discovering the contrary . touching the name ( wardship ) i confess it carryeth a saxon sound , but from norman god-fathers , with whom gard signifying the same that ward doth with us , and they bringing this custom into england , our english ancestors ( as in a multitude of other words ) changed the norman g. into a w. and so made ward for gard , and thereof wardship for gardship . yet to this day we call him that hath the custody of the ward , after the norman manner his gardian not his warden . but i find neither ward , wardship nor warden , in this sense , in any saxon law , charter , or manuscript , or any thing conducing to such signification : the proof being in the affirmative lyeth on the other side , yet doth not the report produce one single case , text , or precedent , to maintain their assertion ; but like pythagoras's schollars , resteth wholly upon ipse dixit , such and such have said it ; and i am now turn'd over to those authors . they have chosen a right good foreman ( confess ) mr. selden , of whom i say as she in ovid , nomine in hectoreo pallida semper eram . but let us hear what he affirms , according as the report conceiveth him , where the words be thus . that wardships were then ( viz. in the saxon's time ) in use , and not brought in by the normans , as mr. cambden in his britt . . nor by henry iii. as randolph hygden , &c. would perswade . vid. selden's notes to fort●scue , . ▪ the report says vide , and i say audi . mr. selden to confute this opinion attributed to rand. hygden useth these words . neither is the custom of wardship so new as r. hygden in his polycronicon , or rather some others not understanding him , ignorantly make it , by supposing the beginning of it here under hen. iii. clearly wardships were before or from the normans at least . thus mr. selden . there may be some amphiboly in the word before , as doubtful whether it shall relate to the normans or to hen. iii. but the occasion of his speech is to confute the opinion of them that did attribute the beginning of wardships to hen. iii. saying , that clearly they were before , and tho' he determineth not how long before , yet he concludeth that from the normans at least , citing glanvill to shew they were in use in hen. ii's time , and the grand custumer of normandy to fetch them higher than so from the normans , who ( by the opinion of berhault that writ the commentary to that custumary ) did first bring them into england . mr. selden ( god be thanked ) is living to explain himself , and i find ( by chance ) where he hath done it fully . his words in the titles of honour be thus , these kind of military fiess or fees as we now have , were not till the normans , with whom the customs of wardship in chivalry ( they began not under hen. iii. as most ignorantly r. hygden the monk of chester and polydore tells you ) came into england . and speaking by and by of malcolm second king of scotland , who dyed about twenty two years before the conquest , he saith : but in this malcolme's time , wardships were not at all in england . thus , mr. selden , whom they so often press against me out of ambiguous places , is clearly with me . their next authority to prove wardships to have been in use amongst the saxons , is ( saith the report ) that amongst the priviledges granted by edw. the confessour to the cinque ports we meet with this , that their heirs shall not be in ward . for this they cite lambard's perambulation of kent , p. . but i demand oyer of the record , and i verily perswade my self nul tiel recorde , nor in truth hath lambard averr'd that there is . lambard's words be these , the priviledges of these ports being first granted by edw. the confessour and william the conqueror , and then confirm'd and encreased by william rufus , hen. ii. rich. i. hen. iii. and king edw. the first , be great , &c. and in reciting some of these priviledges , he tells us amongst the rest , that they themselves ( the inhabitants of the cinque ports ) be exempted from all payments of subsidies , and their heirs freed from wardship of body notwithstanding any tenure . he doth not say that this is in the charter of edward the confessor , but that it is among the priviledges granted by him and william the conqueror , and then confirm'd and encreas'd by the succeeding kings . doubtless the word subsidies here mention'd in this sense , was not in use either in the confessor or conqueror's time , nor in many years after till taxes , aids , and tallages were grudged at and restrain'd . i am therefore confident that this came in among the encreased priviledges afterward , and it appeareth that mr. lambard was not perswaded that there was such a charter of the confessor's time , and therefore waving it seeketh the original of the priviledges of the cinque ports , no further than the conqueror . why then do we father this upon the confessor , especially seeing the charter of anno . edw. i. wherein all the charters of the precedent kings seem to be mention'd , that of edw. the confessor is not spoken of . the third assertion is , that in the customs of kent , ( which are in magna charta of tottil's edition , and in lambard's perambulation ) there is a rule for the wardship of the heir in gavelkind , and that he shall not be married by the lord. and those customs say of themselves , that they were devant le conqueste , e en le conqueste . the words in lambard be devant le conqueste , e en le conquest , e toutes houres ieskes en ca. that is , before the conquest and at the conquest , and ever since till now : which word ( now ) relateth to the ● . of edw. i. there immediately before mention'd . and to save the credit of the author , must be favourably understood to be meant of such customs , as were in use either before the conquest , or at the conquest , or at any time since , in the disjunctive not in the aggregative . for if it be taken conjunctively , then is it notoriously false , for some things mention'd in it had their original under hen. ii. as the grand assize , and justices of eyer , whereof that of eyer was not instituted , till the council ( or parliament as we now call it ) of nottingham , an. dom. . viz. in the . or . of hen. ii. and for that of the grand assize , it is expresly said in the customs , that it was granted them by hen. iii . many other things there be , as the office of the crowner , the manner of essoyning , writ of cessavit , &c. which i suppose was never heard of before the conquest . but if you mark it , the words in question , viz. devant le conquest , &c. stand in lambard at a little more distance than the lines precedent , as if himself conceiv'd them not to belong unto the text of customs . and to clear the doubt in the elder edition publish'd by tottill . june . no such thing is mention'd ; but if it were , there are such other differences in their copies as both their authorities may be question'd , and i in the mean time well delivered from this objection . let us see what followeth . fourthly , for the antiquity of wardships in england and scotland . " see also ( says the report ) hector boet. lib. . buchanan rerum scot. lib. . and the laws of malcome ii. which prove the antiquity of wardships in scotland and in england before the conquest . for in those times it is probable the laws of both nations did not much differ ; as for the times after , it appears they did not , by comparing their regiam majestatem with our glanvil . neither is the bare conjecture of sir henry spelman sufficient to take away the force of those laws , vid. spelman's glossary verbo feudum . upon all this ( saith the report ) they ( the justices of ireland ) did conclude and proceed to sentence . " with the sentence ( as a sacred thing ) i will not meddle . but as touching that part of this argument which — in nostros fabricata est machina muros — i 'm tyed either to answer or to submit . for hector boethius therefore , i confess the place to be truly alledg'd , ( and that hitherto hath seldom happened ) but for the credit of that author i wish leland were alive to deliver the censure he hath left upon him with his own mouth : i forbear it . true it is , he relateth that malcolm ii. gave all his lands well nigh unto his nobility in reward of their service , and that they in thankfulness to support his dignity , regranted unto him , vardam , desponsationem , & releviam al. relevatam , wardship , and marriage of their heirs within age , and relief of those of full age . the paragraph there is long , but to the effect we spoke of . it is also true that buchanan doth report the like , and since him cameraris , and a little before them all johannes major ; but all their harping is from the sound of one string , which in the report is not left unstrain'd , i. e. the laws of malcolme before mention'd , where it is said , that ad montem placiti in villa de scona omnes barones concesserunt sibi wardam , & releviam de haerede cujuscunque baronis defuncti ad sustentationem domini regis . which , because they concern a noble kindom , and have been receiv'd as authentical by an ancient parliament , i will not presume to contradict it . but i humbly offer to the consideration of the learned of that kingdom , and to those of ours and theirs that are conversant in antiquities , these particulars following . first , it being agreed ( which the scots affirm ) that malcolm ii. began his reign in the year . ( i. e. above . years before the normans conquer'd england ) how it cometh to pass that malcolm useth so many norman words in his scottish laws , and whether those words be found in any other monument there before : for in england it was not so . secondly , whether their kings then had not only a seal but magnum sigillum in the custody of the chancellor , and set-fees appointed for the use of it ; for in england it was not so , tho ▪ edward the confessour had a seal after malcolm's time . thirdly , whether they had brevia clausa in cera , and other ordinary instruments seal'd cum magno sigillo , and fees appointed for it ; for in england it was not so . fourthly , whether they had solemn presentations to churches and hospitals under seals in that manner ; for this was long before the council of lateran . fifthly , whether they had then the names of barons , seneschallus , constabularius , mareschallus , ( not in use in england in the time of the confessour ) as appeareth , for the two latter , by the appendix to the confessours laws ; and for their seneschallus called their steward , buchanan says he was brought in by malcolm iii. into scotland . sixthly , whether the norman officers of justiciarius , vicecomes , coronator , ballivus , &c. were then in use by any other proof than by or from these laws ; & sic de caeteris . many other things i pretermit , and take no exception to the frequent mention of pounds and shillings , tho' i know they were scarce with them in scotland ; as not abundant then in england , but paid in truck and cattel . but i admit that which the report saith , that in those times it is probable the laws of both nations did not much differ . as for the times after , it appeareth they did not , by comparing their regiam majestatem with our glanvil . they run much ( i confess ) paribus vestigiis , and oftentimes totidem verbis , iisdem paragraphis . whether of them leads or follows the other , i dare not define , and am loath to dispute . the preface to the regia majestas sheweth it to be written at the command of king david ; whom skeneus in his annotations calleth the first , and saith , he began to reign anno . i. e. . or . of hen. i. and 't is certain that our glanvil was not written till the time of hen. ii. who began not to reign till . so that if this be true , it must needs follow that we took a great part of the modell of our laws , or at least the expression of them , from the scots , ( which our ancestors never yet acknowledg'd ) . it may perhaps fall out ( upon better examination ) that david i. may be mistaken for david ii. but for the part of malcolm ii's laws , which speak of wardship , marriage and relief in scotland at that time , to have risen from their own nobility ; buchanan himself recedeth from that opinion , and concludes , hun● morem ab anglis & danis potius acceptum credo : quod in tota anglia & parte normanniae adhuc perseveret . and demster himself , their greatest antiquary , ingeniously consesseth , that there were no barons in scotland till malcolm iii. created them . and he might well take his precedent from the conquerour , for he liv'd all the time of the conquerour , and about seven years after : so that if there were no barons in scotland in the time of malcolm ii. as demster affirmeth , or the precedent taken out of england for wardship , as buchanan believeth : then could not this law be made in malcolm ii's . time , but seemeth rather ( by both their opinions ) to be ascrib'd to malcolm iii. and that the error hath risen ( as easily it may ) in writing ii. for iii. but in the mean time all this makes no proof against me . chap. xv. no marriage of wards . as for marriage , it is here and in some other places mention'd by the report , but not a word any where to prove that it belonged to the lord in the saxon time . i will help them with what i meet in the old ms. book of ramsey , sect. . where it is said , that one edwine son of othulf gave five hides of land to archbishop odo , pro eo quod regem edredum inflexerat , ut ei liceret filiam cujusdam viri vlfi quem concupiverat , maritali sibi foedere copulare . here it appeareth that the king's licence or good will was sought , but the reason appeareth not . the good will of king solomon was sought that abishag might be given to adoniah for his wife , but not in respect of tenure in either case . it is an express law of king canutus ( ll. . ) ne nyde man naðer ƿif ne maeden , &c. that no man should constrain either woman or maid to marry otherwise than where they will , nor shall take any mony for them , unless by way of thankfulness some do give somewhat . if these passages carry any shew of wardship , i must still let you know that knights fees were not at this time descendable unto women by the feudal law , no nor long after , when they were become hereditary in the masculine line , ne à lancea ad fusum haereditas pertransiret , as you may see by cujacius in feud . lib. . tit. . the first law that i meet with touching feudal marriages is in magna charta libertatum hen. i. yet is there nothing spoken of marrying the heir male of the kings tenant within age . and touching the female issue it is only provided , that the king should be so far acquainted with their marriage , as that he might be assur'd they should not marry with his enemies , lest the feuds or feifs which were given for service against them , should by this occasion be transferr'd to them . hear the words of the charter . et si quis baronum meorum , vel aliorum hominum meorum siliam suam nuptui tradere voluerit , sive sororem suam , sive neptem , sive cognatam , mecum inde loquatur ; sed nec ego aliquid de suo pro hac licentia accipiam , nec defendam ei quin eam det , excepto si eam velit jungere meo inimico . et si mortuo barone vel alio homine meo , filia haeres remanserit , & sine liberis fuerit , dotem suam & maritationem habebit , & eam non dabo marito , nisi secundum velle suum , &c. ordaining , that the wife shall be guardian of the childrens lands , or some near kinsman , qui justus esse debet ; and that other lords observe the like courses touching their wards . thus among the normans : but i don't find in all the feodal law of these times , any thing sounding to this purpose , nor any mention of marriage or wardship of the body or lands . i take them therefore to have risen from the normans a little before their coming into england , but in a diverse manner , according to the diversity of the places , and the moderate or covetous disposition of the lords . for it seemeth that tho' the profits of the land belong'd wholly to the lord , and were therefore ordinarily so taken by him : yet some of the lords deducting only the charge of education of the ward , and just allowances , restor'd him his lands at full age , with the surplusage upon accompt . and the grantee of a wardship from the king , was in normandy tyed to do it , as appeareth by the . artic. of the reformed customes ; for otherwise they were not guardians properly and tutores rei pupillaris , but fructuarii rather , and suum promoventes commodum . see the comment to that article . so in point of feodal marriage , it seemeth that the charter of henry i. was grounded upon the norman custom , which , tho it required the consent of the lord in tendring of marriage to women ( for the reason aforesaid ) yet did it not permit either him or the kindred or friends ( whom they called the parents ) to make it venal , or to take any thing for the same , as you may see by divers passages there , and by a case adjudged in the comment to the . article , where the tutor or guardian and the parents and friends thus offending , are all condemn'd to pay costs and damages . and note , that according to the norman custom ) the consent of the parents , ( viz. the next kindred and friends ) was as requisite as the consent of the lord or tutor , which , as i conceive , gave the occasion of the words si parentes conquerantur , in the statute of merton , as in respect of the ancient right they had in consenting to the marriage . and insomuch as we don't find that the various usages touching wardship and marriage , were compos'd into an uniform law till magna charta henr. iii. did determine it , it may be conceiv'd to have been the reason that rand. higden before mention'd and our other authors , did ascribe this part of our feodal law to be introduced by henry iii. but it is manifest by glanvil that it was in use in henry ii's time : and by the charter of henry i. to have been so likewise under william rufus ; yet is there nothing hitherto any way produc'd to bring it from the saxons , or to shew it to have been in use amongst them . chap. xvi . no livery , no primer seisin . if the king's tenant in capite or by knight-service dieth , the king shall have his lands till the heir hath done homage ; which if he be of full age , he may do presently : but if he be under age the land must continue in the king's hands till his full age . and when either the one or the other sueth to have it out of the king's hands , his obtaining it is called livery , and the profits receiv'd in the mean time by the king , are call'd his primer seisin . but neither of these could be among the saxons , for that their hereditary lands were not feodal , but libera ab omni gravedine , ( as before we have shew'd . ) and their temporary lands could not be subject to it , for that their estate extended no farther then to a franck tenement . and neither the one or the other was then tyed to do homage , as shall appear when we speak of homage . after the coming of the normans they were presently afoot amongst us , even in william rufus's days , but uncertain and irregular ; which was a certain note of their novelty , and that feuds hereditary were new begun . the great charter of liberties granted by henry i. implyeth as much : where to moderate them , the king saith thus , si quis baronum meorum seu comitum sive aliorum qui de me tenent , mortuus fuerit , haeres suus non redimet terram suam sicut faciebat tempore fratris mei , sed legitima & justa relevatione relevabit eam . similiter & homines baronum meorum justa & legitima relevatione relevabunt terras suas de dominis suis . i take this redeeming of the land out of the king's hands , to be a composition for his primer seisin , and for the livery and relief , things uncertain at this time even in their norman appellations , and not likely therefore to be known unto the saxons . chap. xvii . that reliefs ( whereon the report most relyeth ) were not in use among the saxons ; nor like their heriots . of all the feodal profits alledged in the report to be receiv'd by the saxons , it casteth anchor chiefly on reliefs , as a thing most evident and unanswerable : the rest ( save wardship ) it scarcely fortifieth with a breath besides the bare assertion . this it saith was common ; and in pursuit thereof addeth these words . for reliefs , we have full testimony in the reliefs of their earls and thanes , for which see the laws of king canutus , cap. , and . the laws of edw. the confessor , cap. de heretochiis , and what out of the book of doomsday coke hath in his instit . sect. . camden in berkshire , selden in eadmer . . great authorities ; secumque deos in praelia ducunt . we must not meddle with them all at once , let us try them singly . the law cited out of canutus is in these words : and beon ða heregeata , let the heriot ( which was to be paid after the death of great men ) be according to their dignities . an earl's , eight horses , ( four sadled and four unsadled ) four helmets , four corslets , eight spears and as many shields , four swords and two hundred marks of gold. the heriot of a thane next to the king , four horses ( two sadled and two unsadled ) two swords , four spears , four shields , one helmet , one corslet , and fifty marks . of the inferiour or midling thane , an horse furnished and his weapon , &c. and he that less hath and less may , let his heriot be two pound . here is speech indeed of an heriot but none of relief : i shall anon shew the difference between them , and then hath this law nothing against me . touching the law alledged to be edward the confessor's , the words be these , qui in bello ante dominum suum ceciderit ( sit hoc in terra sit alibi ) sint ei relevationes condonatae , &c. here i confess is mention of reliefs , but i deny this to be the law of edward the confessor : 't is true that it is published by lambard among his receiv'd laws , but ( if you mark it ) in a differing letter as noting it to be an addition . in an ancient ms. therefore ( which i have ) of those laws , it is not sound , nor in the printed copy of roger hoveden , who wrote till the third year of king john , that is . years after the confessor's time : with reverence therefore be it spoken , it is mistaken both in the report and by my ld. coke himself , whom it followeth , if they say that these words were part of the law of edw. the confessor , yea , the text it self maketh ..... of william the younger call'd rufus . but to conceal no truth , it is delivered by jornalensis monachus in the very same words , as a law of an elder king amongst us , than the confessor ; namely of canutus our danish king , who in the . chap. of his laws ( speaking of one slain in battel in the presence of his lord ) saith expresly , sint ei relevationes condonatae . now the game seemeth to be wonn ; but stay a while , and remember what i said before of the translations of our saxon laws and charters into latin. the saxons and the danes ( whose language and laws differ'd little in those days ) wrote their laws only in their own tongue , and the translating of them hath begotten much variety and many controversies ; we must therefore resort to the original saxon , where this passage is in the th . chap. of the second part of his laws in these words , & se man ðe aet ðam sy●dung toforan his hla●ord ●ealle , sy hit innan lande , sy hit of lande . beon herogeata forgyfene : which is thus verbatim , the man that in a military voyage is slain before or in the presence of his lord , be it upon land or off of land , let the heriots be forgiven him . he saith not , let the releifs , but let the heriots be forgiven him , and i deny not but this might be one of the danish laws which edward the confessor took out of canutus's laws when he compos'd the common law out of the west saxon law , mercian law , and dane law , if the copies of them were extant ; and it is very probable that william the conquerour ( or one of his sons ) did turn that law of heriots into this of reliefs . for that which my lord coke hath out of doomsday , is the same which mr. cambden hath in barkshire touching all that county . vt tainus vel miles regis dominicus moriens , pro releviamento dimittebat regi omnia arma sua , & equum unum cum sella , & alium sine sella ; quod si essent canes vel accipitres , praestabantur regi , ut sivellet , acciperet . here is releviamentum us'd in the conquerour's time , ( which i doubt not , ) but our question is of it in the time of the saxons . that also cited by and out of mr. selden is of the same nature , and one answer therefore serveth to all the three . yet by way of corollary , i shall anon discover another error of this sort , rising even from doomsday it self and the normans possessing this kingdom of the saxons , but not well instructed in their laws and customs : which is as followeth . chap. xviii . difference between heriots and reliefs . heriots were usual among the latter saxons : reliefs among the elder normans before their coming into england . this according to the custom of the feudal law , and other nations : that ordain'd by ludovicus al. clodoveus king of france about the year . to tame the almans whom he then had brought to servitude . i find it not in england till the soveraigntie of the danes . the first laws ( which i find ) that mention it , are those of canutus before mentioned , who perhaps for the assurance of his throne us'd this politick device to have all the armour of the kingdom at his disposition in this manner , when he had dismissed his danish army . but it falling so out as the heriot being to be paid at or after the death of the old tenant , and the relief at or before the entry of the new ; the normans in this did like our ancestors the saxons , who , because our christian pascha or passover fell out yearly to be celebrated about the time of the feast of their idol . easter , call'd our passover by the name of their easter ; so they seem to have conceiv'd the saxon heriot to be the same that their norman relief was , and therefore translated the word heriot by releviamentum or relevium , and raising the form of their feudal law in england , drew the saxon customs to cohere therewith as much as might be . but there is great difference between heriots and reliefs ; for heriots were militiae apparatus , which the word signifieth , and devised ( as i said before ) to keep the conquered nation in subjection , and to support the publick strength and military furniture of the kingdom : the reliefs for the private commodity of the lord , that he might not have inutilem proprietatem in the seignory . the heriots were therefore properly paid in habiliments of war , the reliefs usually in money : the heriot for the tenant that died , and out of his goods ; the relief for the tenant that succeeded and out of his purse . the heriot whether the son or heir enjoy'd the land or not : the relief by none but him only that obtain'd the land in succession . the heriot whether the land were fallen into the lord's hands or not : the relief in old time not unless it were fallen and lay destitute of a tenant , whose taking of it up out of the lord's hands was in that sense called relevium or relevatio , a taking up of that was fallen , according to the french word reliefe . bracton well observ'd the difference , saying , fit quaedam praestatio quae non dicitur relevium sed quasi , sicut heriotum quasi loco relevii , & quod dari debet aliquando ante sacramentum fidelitatis , aliquando post . hotoman saith , relevium dicitur honorarium ( munus ) quod novus vassallus patrono introitus causa largitur ; quasi morte alterius vassalli vel alio quo casu feudum ceciderit , quod jam à novo sublevetur . ( nov. leo. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 nominat . ) i stand the longer herein , for that not only the report but even doomsday it self and generally all the ancient monkish writers , have confounded heriots and releifs . yet might i have saved all this labour , for nothing can make the difference more manifest than that we often see both of them are together issuing out of the same land . but when all is done , neither is heriot nor releif any badge of land holden by knight's-service or in capite , for both of them are found in lands of ordinary socage . yet i confess that bracton saith , de soccagio non datur relevium , and a little before , de soccagio non competit domino capitali custodia nec homagium : & ubi nulla custodia , nullum relevium , sed è contra . but this serveth my turn very well ; for that they in the report having fail'd to prove that releifs were in use in the saxons time , ( whereof they affirm'd they had full testimony ) it now inferreth on my behalf that if releifs and wardships were not in use among the saxons , that then also tenure by knight-service was not with them . besides all this , the heriot was a certain duty , and settled by law , the relief so various and uncertain , as the lords exacted what they listed for it when it fell into their hands ; constraining the heir of the tenant , as it were to make a new purchase of their feud ; whereupon the feudists called this releif not only renovatio and restauratio feudi , in greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , turning or bringing back of the feud to the former condition or proper nature of it ; but also redemptio a ransoming of it out of the lord's hands . that it thus stood with us in england by and by after the conquest , appears by that we have shewed before out of the magna charta of henry i. chap. xix . no fines for licence of alienation . touching fines for licence of alienation , it is not said what kind of tenants among the saxons did pay them , nor for what kind of land they were paid . the thane-land hereditary is apparently discharg'd thereof by the ordinary words of their charters before mention'd , where 't is said , that the owners of lands may give and bequeath them cuicunque voluerint , and that freely , ab omni munduali obstaculo . doomsday also ( as we here shewed ) doth testifie as much , and so doth the very word alodium , which the ancient authors attribute to these lands . so that the thane-lands doubtless were free both from the fine and licence . but as touching folcland and land holden at will of the lord , tho' continued in ancient time to their children after the manner of copy-holds ; it is no question but that they might both have licence for aliening such lands , and also pay consideration for it ; as our copy-holders do at this day . i find that one brictrick in the time of king etheldred about the year . bequeath'd legacies of good value unto his lord's wife , to intreat her husband that this brictrick's will ( whereby he had devised many lands and goods to monasteries and divers men ) might stand . and that thola the widow of vrke a thane of edward the confessor , obtain'd licence from the same king edward , that she might devise both her lands and goods to the monastery of abbotsbury . but of what nature these licences were , whether to alienate the land , or to make a will , or to give the land to monasteries as in mortmain , i cannot determine . if they only intended alienation , then i understand them only of lands holden ( according to the custom of the time ) at will of the lord , or folcland . yet in that thola's licence was as well to bequeath her goods expresly as her lands ; the licence seemeth to be given therefore to make a will , which no man then could do if not a thane . ( quaere . ) but howsoever it be expounded , it must not be extended to the thane-lands or land hereditary , for the reasons before alledged . and as touching fines for licence of alienation after our manner ( which the report suggesteth ) they could not doubtless be in use among the saxons ; for there are not found ( as i suppose ) here among us before the time of edward i. and not established afterwards 'till . edw. iii. where the king granteth that from thenceforth lands holden in chiefe , should not be seized as forfeited ( which formerly they were ) for alienation without licence , but that a reasonable fine should be taken for the same . see the statute ▪ chap. xx. no feodal homage among the saxons . our word man and homo in latin , have for many ages in old time been used by the german and western nations for a servant or vassal . and from thence hominium and vassaticum , afterwards homagium was likewise used for hominem agere , to do the office or duty of a servant ; ( not to signifie manhood as some expound it , ) and so also vassalagium . but by little and little all these latter words have been restrain'd , to note no more than our ceremonial homage belonging properly unto tenures ; which i met not with among our saxons , nor any shew thereof in former ages , unless we shall fancy that the devil had it in his eye when he offered to give unto our saviour all the kingdoms of the world , if he would fall down and worship him . for here he maketh himself as capital lord , our saviour as the feodal tenant : the kingdoms of the world to be the feud : the falling ( or kneeling ) down to be the homage : and the worshipping of him ( consisting as the feodists expound it in six rules of service ) to be the fealty . pardon me this idleness , but from such missemblances rise many errors . homage ( as we understand it in our law ) is of two sorts : one more ancient than the other called homagium ligeum , as due unto the king in respect of soveraignty , and so done ( more francico ) to king pipin by tassilo duke of bavaria about the year . the other homagium feodale or praediale , belonging to every feodal lord , and not begun in france 'till feuds were there made hereditary by hugh capet , nor in england till william the conqueror did the like , as before appears . the reason of it was to preserve the memory of the tenure and of the duty of the tenant , by making every new tenant at his entry to recognize the interest of his lord , lest that the feud being now hereditary and new heirs continually succeeding into it , they might by little and little forget their duty , and substracting the services , deny at last the tenure it self . we see at this day frequent examples of it ; for by neglecting of doing homage and those services , tenures usually are forgotten and so revolv'd to the king by ignoramus , to the great evil of their posterity that neglect it . but the saxons having only two kind of lands , bocland and folcland , neither of them could be subject unto homage : for the bocland ( which belong'd properly to their greater thanes ) tho' it were hereditary , yet was it alodium and libera ab omni seculari gravedine , as before is shewed , and thereby free from homage . and the folcland being not otherwise granted by the king or his thanes than at will , or for years , or for life , the tenant of it was not to do any homage for it . for justice littleton biddeth us note , that none shall do homage but such as have an estate in fee simple or fee taile , &c. for ( saith he ) 't is a maxim in law , that he which hath an estate but for term of life , shall neither do homage nor take homage . but admit the saxons had the ceremony of doing homage among them , yet was it not a certain mark of knights-service : for it was usual also in socage-tenure . and in elder ages , as well a personal duty as a praedial , that is done to princes and great men , either by compulsion for subjection , or voluntary for their protection , without receiving any feud or other grant of land or benefit from them . and he or they which in this manner put themselves into the homage of another for protection sake , were then called homines sui , and said commendare se in manus ejus or commendare se illi , and were thereupon sometimes called homines ejus commendati , and sometimes commendati without homines , as in doomsday often . tho' we have lost the meaning of the phrase , yet we use it even to this day . commend me unto such a man , which importeth as much as ( our new compliment taken up from beyond the seas ) let him know that i am his servant . see the quotations here annexed , and note , that tho' the saxons did ( as we at this day ) call their servants and followers homines suos , their men ; yet we no where find the word tenure , or the ceremony of homage among them , nor any speech of doing or of respiting homage . chap. xxi . what manner of fealty among the saxons . so for fealty : if we shall apply every oath sworn by servants and vassals ( for fidelity to their lord ) to belong unto fealty , we may bring it from that which abraham imposed upon his servant , put thy hand under my thigh , and swear , &c. for the saxons abounded with oaths in this kind , following therein their ancestors the germans , who , as tacitus saith , took praecipuum sacramentum , a principal oath to defend the lord of the territory under whom they lived , and to ascribe their own valour to his glory . so likewise the homines commendati before mention'd , yea , the famuli ministeriales and houshold servants of noble persons , were in ancient times and within the memory of our fathers , sworn to be faithful to their lords . these and such other were anciently the oaths of fealty , but illud postremo observandum saith bignonius ( a learned french-man of the king 's great council ) fidelitatem hodie quidem feudi causa tantum praestari ; shewing farther that fealty was first made to princes by the commendati and fideles , without any feud given unto them , and that the princes afterwards did many times grant unto them feuda vacantia , as to their servants : but whether the oath of fealty were so brought in upon feodal tenants , or were in use before , he doth not determine . in the mean time it hereby appeareth , that fealty in those days was personal as well as feodal or praedial , which imposeth a necessity upon them of the contrary part in the report , that if they meet with fealty among the saxons , they must shew it to be feodal and not personal ; for otherwise it maintaineth not their assertion . i will help them with a pattern of fealty in those times , where oswald bishop of worcester granting the lands of his bishoprick to many and sundry persons for three lives , reserv'd a multitude of services to be done by them , and bound them to swear , that as long as they held those lands , they should continue in the commandments of the bishop with all subjection . i take this to be an oath of fealty , but we must consider whether it be personal or praedial . if personal , it nothing then concerneth tenures , and consequently not our question . if praedial , then must it be inherent to the land , which here it seemeth not to be , but to arise by way of contract . and being praedial must either be feodal , as for land holden by knight-service ; or colonical as for lands in socage . if we say it is feodal , then must there be homage also as well as fealty , for homage is inseperable from a feud by knight-service : but the estates here granted by oswald being no greater than for life , the grantees must not ( as we have shewed ) either make or take homage . and being lastly but colonical or in socage , it is no fruit of a tenure in capite by knight-service , nor belonging therefore to our question . so that if fealty be found among the saxons , yet can it not be found to be a fruit of knight-service in capite , as the report pretendeth it , see fidelitas in my glossary . chap. xxii . no escuage among the saxons . what in the empire . the word scutagium and that of escuage , is of such novelty beyond the seas , as i find it not among the feudists , no not among the french or normans themselves , much less among the saxons . yet i meet with an ancient law in the novella of constantine porphyrogenita ( emperour of greece in the year . ) that gives a specimen of it , tho' not the name . quaedam esse praedia militaria , quibus cohaereat onus militiae , ita ut possessorem necesse sit se ad militiam comparare domino indicante delectum : vel si nolit aut non possit se ad delectum exhibere , certam eo nomine pecuniam fisco dependere , quae feudorum omnium lex est , &c. this tells us , that there were certain lands to which the burden of warfare was so adherent , that every owner of them was tyed upon summons made by his lord to make his appearance therein , or else to pay certain money by way of a fine , as was common in all cases of feodal tenures . this hath some shew of our escuage , and might well have taken that name from the manner of summons used in the empire ; which was by erecting a post or pillar , and hanging a shield at the top thereof , an herald proclaiming that all who held in this manner should at such a day attend the emperour in his voyage to rome , for taking the crown of italy or king of romans ; which the ligurine poet thus expresseth , — ligno suspenditur alte erecto clypeus : tunc praeco regius omnes convocat a dominis feudalia jura tenentes , &c. as we have shew'd in our glossary verbo feudum . he useth clypeus for a shield , instead of scutum ; and from this shield i say it might well be called scutagium , as also from the service performed in it cum hasta & scuto . yet this summons was not called schiltbannum but heribannum , that is indictio exercitus , not indictio s●uti . but to keep nearer the matter . first , our saxons neither used the name nor the rules of the norman escuage ; for they called their going to war upon legal summons , firdfare and utfare , in latin expeditionem and profectionem . secondly , they were not tyed to any definite time of abode , as for fourty days or more or less , but as the law saith , sƿa a ðon ðearf sy for gemene●●●re neode , so as need shall require for common necessity . thirdly , the mulct or forfeiture that the tenant in escuage incurred for not going forth upon that summons , was uncertain among the normans and us , 'till the parliament assign'd it ; but among the saxons he that offended in ferdwite , that is , in not going forth in the expedition , was certainly fin'd at . fourthly , whereas every lord among us had the fine assess'd by parliament of his own tenant for the lands holden of himself ; the king among the saxons had the fine aforesaid of every delinquent , whose tenant or follower soever he were , by all the laws of the kingdom , that is to say , by the west-saxon law , by the mercian , and by the dane law ; tho' otherwise they differ'd in their heriots , and many particular customs . so that to talk of escuage among the saxons , is without all colour or probability as i take it . chap. xxiii . no feodal escheate of hereditary lands among the saxons . escheats ( of eschoeir in french ) signifieth things coming accidentally , as on the by or by chance . the f●odists therefore call them caduca ( a cadendo ) and excadentias ; the black book of the exchequer escaetas , excidentia and excadentia : but among our saxons i find no word to express them either properly or paraphrastically . in our law they be of two sorts , regal escheats and feodal . regal are those obventions and forfeitures which belong generally to kings by the ancient right of their crowns and supreme dignity . thus king david gave the lands of mephibosheth accused of treason , unto ziba ( tho' too hastily . ) feodal are those which accrue to every feodal lord as well as to the king , by reason of his seignory , and of all the fruits of tenure none so great as this ( if we may call it a fruit ) where the feud or tree it self resulteth back unto the lord. let us see therefore if we find any of these feodal escheats among the saxons . there is a shrewd text ( i confess ) in canutus his laws . qui fugiet à domino suo vel socio pro timiditate in expeditione navali vel terrestri , perdat omne quod suum est , & suam ipsius vitam , & manus mittat dominus ad terram quam ei dederat , & si terram haereditariam habeat , ipsa in manum regis transeat . here is the appearance of a tenure , of a feud , of a forfeiture , and of an escheat . the tenure lyeth between the lord and his fugitive vassal , whom the saxons and germans called his man , we his tenant . the feud in the land , quam d●m●nus ●i dederat . the forfeiture , in fugiendo , in the vassals running away . and the es●heat , in the lord 's seizing of the land : manus mittat dominus in terram quam ei dederat , let the lord take back the estate which he gave in the temporary feud : but for the hereditary land , he saith , transeat ( non redeat ) in manum regis . all this is nothing in our case ; for i declared in the beginning that our question was fix'd upon such feuds as the law of england taketh notice of at this day , that is , of feuds after they were become hereditary and perpetual , not of those mention'd by gerardus niger , which were temporary as at will of the lord , or for years , or for life , like them here intended by canutus . this very law observeth the difference , and discovereth also that feuds were not hereditary in his time , and therefore giveth the feodal land , being but a temporary estate , back unto the lord ( in whom the reversion was by inheritance ) as a feodal right , but giveth the hereditary lands unto the king as a regal escheat ; for that there was no mean or intervenient lord to claim them by any feodal tenure , for that the hereditary lands among the saxons ( otherwise called bocland ) were holden of no body , nor subject to any feodal service , ( as we have often declared ) and could not therefore escheat unto any feodal lord. the kentish custom of the father to the bough and the son to the plough , suggesteth as much , and sheweth also to have been the general use of england , till the conquerour introducing hereditary feuds , put upon us therewith these greater feodal servitudes of wardship , marriage , escheats , &c. so that the hereditary lands not being feodal in the saxon's time , nor the feodal lands hereditary ; there could then be no feodal escheats among them . and i take it to be considerable whether the land resumed by the lord upon his vassal's running away , be properly an escheat by the law of canutus , or rather a penalty only impos'd in this particular case . chap. xxiv . thaneland and reveland what : no marks of tenure but distinctions of land-holders . there is yet another assertion , rather shewed than proved , that the thani majores or king's thanes , held by personal service of the king's person by grand serjanty or knights-service in capite . and the reason following is , that the land so held was in those times called thane-land , as land holden in socage was called reveland : so frequently in doomsday , haec terra fuit terra regis edwardi thainland , sed postea conversa est in reveland ; coke's instit . § . . thus the report dischargeth it self upon my lord coke , whose words be these , it is to be observ'd that in the book of doomsday , land holden by knights-service was called thainland , and land holden by socage was called reveland . i reverence the opinion of that famous lawyer with admiration , but i suppose he speaketh not this ex tripode juridico . for it is impossible , that it and that which is before deliver'd out of the very charters of the saxon kings themselves , should stand together , viz. that their thanelands should be liberae ab omni seculari gravedine , and yet be subject to that which of all other was most grievous , viz. our knights-service in capite . it may be answered , ( as the report in another place delivereth positively ) that tenure in capite cannot be transferred or extinct by release or grant ; for it is an incident inseparably annexed to the crown . the answer were good if once they had made it appear that both this tenure and this law were in force in the saxons time . there is nothing shew'd to prove that suggestion , and were it true i should desire no better argument on my behalf than what the place it self bringeth with it . for if thaneland were converted into reveland , and that reveland signify socage-land , then it is as manifest as the sun , that tainland did not signify land holden by knights-service in capite ; for if it did , then could it not decline into socage-tenure , as their own maxime doth demonstrate . if there be a cloud before this sun , i shall remove it also . my lord coke citing this place out of doomsday , noteth in the margin herefords● . but delivereth both the title and the text by halfs . the title is hereford . rex . the text thus : haec terra fuit tempore edwardi regis tainland , sed postea conversa est in reveland . et idem dicunt legati regis quod ipsa terra & census qui inde exit , furtim aufertur regi . the very title discovers the tenure , for if it be terra regis , ( as the word rex declareth it ) then it is plainly ancient demesne , and every lawyer will tell us , that in ancient demesne there was no tenure by knights-service , but wholly in socage . so that this cloud now vanisheth into the air , and our tainland is clearly discovered to be but socage . i shall speak more of it afterwards . but what construction shall we now find for the words in doomsday , tainland conversa est in reveland . ( hoc opus , hic labor est . ) it is sufficient for me to have quit my self of the objection , they must seek some new interpretation . yet will i help them what i can in that also : i suppose that the land which is here said to have been thaneland , t. e. r. and after converted into reveland : was such land as being reverted to the king after the death of his thane , who had it for life , was not since granted out to any by the king , but rested in charge upon the account of the reve or bailiff of the mannour , who ( as it seemeth ) being in this lordship of hereford , like the reve in chaucer , a false brother , concealed the land from the auditor and kept the profit of it to himself ; till the surveiors , who are here called legati regis , discovered this falsehood and presented to the king , that furtim aufertur regi , as by the words in the latter part of the paragraph ( which my lord coke reciteth ) appeareth . besides all this , why should the coming of these lands into the reve's accompt , alter the nature of the tenure , seeing all men know that the reves and bailiffs of mannours govern and dispose the lands thereof , as well which are holden by knights-service as those in socage . as for the old french ms. custumary ( which they affirm doth mention tenures by knights-service , long before the saxons even in the time of the britains ; ) i doubt not but there may be such a passage in it ; for the law which they ascribe to edward the confessour for proving feuds to be in use in his time , affirmeth also that the laws , dignities , liberties , &c. of the city of london were at that day the same which were in old great troy. but as they in the report wave the one , so i take them both for romances , and pass them over as not worth an answer . having thus particularly answered every argument , inference and objection , produced in the report , to prove our feuds and form of tenures to have been in use amongst our saxons ; i shall now conclude that it neither was nor could be so , unless we shall assume that our poor illiterate saxons ( in a corner of the world ) were the authors of the feodal law , and gave the precedent thereof to the germans , longobards , french , italians , and the empire . for in none of these was it otherwise extant ( till about the end of our saxon monarchy ; ) then by such budds and branches as we formerly have expressed out of caesar , tacitus , and some other . chap. xxv . how the saxons held their lands , and what obliged them to so many kinds of services . it cometh now in question , how the saxons held their lands , and what obliged them to that multitude of services which lay upon them both in war and peace . as for tenures , i still say that they had not the name in use among them , yet ( like the jews , the greeks , the romans , and other ancient nations ) a multitude of services , whereof some were personal , and some praedial . personal services were those which a man did for his person or personal estate , either generally to the king and common-wealth in publick occasions , as in the trinodi necessitate , &c. or particularly to his own lord upon particular agreement between them , like the commendati before mentioned , and some ministerial officers and domestick servants . praedial service was that which was done after the same manner ( to the king or his lord ) for land only ; and this was of three sorts , alodial , beneficiary , and colonical . alodial service was that which the greater thanes and other who had alodial land ( otherwise called bocland , and as i take it gavelkind and hereditary land ) were tyed to do pro bono publico to the king and common-wealth , in respect of those lands ; tho' by the feudal law that kind of land was free from all tenure and feodal service . i should not therefore use this solecism to call them services , if the dialect of our law afforded me some other fit expression ; but the saxons themselves term'd them land-rights not services , of which sort were the trinodis necessitas of expedition , burghbote and brigbote , the guarding of the sea and of the peace , attendance upon the king's summons for his park or palace before expressed , and besides them all the tribute of danegelt , &c. beneficiary services were those , which were done by the midling or lesser thanes to the king , and the greater thanes either militarily in war , or ministerially in peace , for those portions of out-land , which being granted to them temporarily ( as at will of the lord or for life or lives ) were then called beneficia , but being extended after to perpetuity , they were named by the normans feoda . the creation , manner , variety , and multitude of them , you shall see in the charter of bishop oswald , by and by ensuing . colonical services were those which were done by the ceorls and socmen , ( that is , husbandmen ) to their lords ( the king and thanes ) of all sorts , for some portions also of their out-lands . these were after called feoda rustica beyond the seas , with us socage-lands , and were holden at pleasure of their lords either by rendring part of the profits thereupon growing or reared , as victuals especially , in saxon called feorms , &c. ( whereof see the rates in the laws of king ina , chap. . ) or by doing some works of husbandry upon the lord's inlands now called his demeans , as tillage , carriage , harvest-works , &c. among all these diversities of services , none cometh so near to the nature of feuds and tenures , as the beneficiary do . let us therefore consider them the more seriously by that notable pattern of them left unto us from bishop oswald , who dividing much of the land of his church of worcester into those kind of portions , which after the feodal word then in use he called beneficia , granted the same unto his thanes and followers , not by the name of his milites or tenentes , but of his fidos subditos , for the term of three lives ( according to the manner which they retain in those parts even to this day ) and reserving to his church and successors not homagium & s●rvitium , the material words in tenure to create knights-service in the feodal law , but the services mentioned in his charter secundum conventionem cum eis factam & sponsionem suam , as the very words are there expresly . but hear the charter or rather epistle as he himself calleth it , which the king confirmed and a councell . the aranga or preamble of it is a thankful acknowledgement of king edgar's bounty and goodness to him ( the bishop ) and his church ; the conclusion ( after the manner of those times ) a curse and heavy imprecation against all such as shall spoil or violate the same . both which being long and nothing to our purpose , i think convenient here to pretermit . the rest is as followeth under the title given it in the manuscript . chap. xxvi . the charter whereby oswald bishop of worcester disposed divers lands of his church after the feodal manner of that time , entituled , indiculum libertatis de oswaldes-lawes-hundred . domino meo charissimo regi anglorum edgaro , ego oswaldus wigorniensis ecclesiae episcopus , &c. quare quomodo fidos mihi subditos telluribus quae meae traditae sunt potestati per spatium temporis , trium hominum id est duorum post se haeredum , condonarem , placuit tam mihi quam ipsis fautoribus & consiliariis meis , cum ipsius domini mei regis licentia & attestatione , ut fratribus meis successoribus scil . episcopis per chirographi cautionem apertius enuclearem , ut sciant quid ab eis extorquere juste debeant secundum conventionem cum eis factam , & sponsionem suam ; unde & hanc epistolam ob cautelae causam componere studui , nequis malignae cupiditatis instinctu hoc sequenti tempore mutare volens , abjurare a servitio ecclesiae queat . haec itaque conventio cum eis facta est , ipso domino meo rege annuente , & sua attestatione munificentae suae largitatem roborante & confirmante , omnibusque ipsius regiminis sapientibus & principibus attestantibus & consentientibus , hoc pacto eis terras sanctae ecclesiae sub me tenere concessi : hoc est ut omnis equitandi lex ab eis impleatur , quae ad equites pertinet , & ut pleniter persolvant omnia quae ad jus ipsius ecclesiae juste competunt , scil . ea quae anglice dicuntur ciricsceott & toll , id est thelonium , & tacc id est swinseade , & caetera jura ecclesiae , nisi episcopus alicui eorum quid pardonare voluerit , seseque quamdiu ipsas terras tenent in mandatis pontificis humiliter cum omni subjectione perseverare etiam jurejurando affirment . super haec etiam ad omnis industriae episcopi indigentiam semet ipsos praesto impendant , equos praestent , ipsi equitent , & ad totum piramiticum opus ecclesiae calcis atque ad pontis aedificum ultro inveniantur parati . sed & venationis sepem domini episcopi ultronei ad aedificandum repperiantur , suaque quandocunque domino episcopo libuerit venabula destinent venatum . insuper ad multas alias indigentiae causas quibus opus est domino antistiti saepe furnisci , sive ad suum servitium sive ad regale explendum : semper illius archiductoris dominatui & voluntati qui episcopatui praesidet , propter beneficium quod illis praestitum est , cum omni humilitate & subjectione subditi fiant , secundum ipsius voluntatem , & terrarum quas quisque possidet quantitatem . decurso autem praefati temporis curriculo , viz. duorum qui post eos qui eas mode possident haeredum vitae spatio , in ipsius antistitis sit arbitrio , quid inde velit , & quomodo sui velle sit inde ita stet , sive ad suum opus eas retinere si sic sibi utile judicaverit , sive eas alicui diutius praestare , si sic sibi placuerit , velit , ita duntaxat ut semper ecclesiae servitia pleniter ( ut praefati sumus ) inde persolvantur . ast si quid praefatorum delicti praevaricantis causa defuerit jurum ; praevaricationis delictum secundum quod praesulis jus est , emendet : aut illo quo antea potitus est dono & terra careat . siquis vero diabolo instigante , &c. the sum of all aforesaid is , that the bishop's tenant shall pay and do as followeth . first , that they shall perform all duties that belong to horsemen . that they shall pay all things that are due unto the church , and perform all other rights that belong to it . that they shall swear to be in all humble subjection at the command of the bishop , as long as they shall hold these lands of him . that as often as the occasion of the bishops shall so require , they shall present themselves to be ready for it , and shall both furnish him with horses and ride themselves . that of their own accord they shall be ready to perform all the work about the steeple of that church , and for the building of castles and bridges . that they shall readily help to fence in the bishop's parks , and to furnish him with hunting weapons , when he goeth a hunting . that in many other cases when the occasion of the lord bishop shall require , whether it be for his own service or for the king's service , they shall in all humbleness and subjection be obedient to the chief captain or leader of the bishoprick , for the * benefit done unto them , and the quantity of land which every one of them possesseth . that after the expiration of the three lives , the land shall return again to the bishoprick . that if there be any defect in performing the premisses by reason that some shall vary or break the agreement , the delinquent shall make satisfaction according to the justice of the bishop , or shall forfeit the land which he had of his gift . i suppose that this was the common manner of grants and reservations in those times , and that they were not made otherwise than for life or three lives , for so i find them in the abby-books . and i also suppose that they to whom these lands were granted , were the thani episcopi & thani ecclesiae , spoken of in doomsday-book , and that the lands themselves were such as in the same book are usually called thain-lands , ecclesiae , episcopi and abbatis . but i see they were laden with many services which the lands of the king's thane , in respect of his dignity and person , were free from . therefore when this very bishop by another charter granted tres cassatas , three hydes of land in cungle , cuidam ministro regis , to one of the king's thanes nam'd alfwold , and to his mother ( if she surviv'd ) during their lives : he put no service upon the king's thane , but saith plena glorietur libertate , excepta expeditione rata , pontis arcisve constructione : the common exception in grants unto the kings thanes as before appeareth ; and yet the services thereby excepted belonged not either to the bishop or the king himself , otherwise than pro bono publico and common necessity . after all this i beat still upon the old string , that here yet is nothing to prove wardship or marriage , or ( as the law then stood ) a tenure by knights-service : for we have made it manifest that expedition and building of castles and bridges were no feodal services nor grew by tenure . and as for these that were tyed to ride and go up and down with their lord , baraterius an old feudist saith , that a knights fee may be given so ut vassallus in diebus festivis cum uxore domini ad ecclesiam vadat , and the feudal law it self inferreth as much , lib. . tit. . but our bracton speaking of our law here in england ( de invest . feud . ) in his time touching such tenants , calleth them rodknights alias radknights , lib. . cap. . nu . . ut siquis debeat equitare cum domino suo de manerio in manerium ; and saith not that it is knight-service , but that it is a serjantie , and that although such sometimes do homage , yet the lord shall not have ward and marriage . admit notwithstanding that it were knight-service , and that the lands thus holden were knights fees during the life of the tenant , yet where is the wardship , marriage and releif ? who shall undergo these servitudes , since the tenure and all the services are determin'd with the life of the tenant ? chap. xxvii . inducements to the conclusion . seeing then that neither the greater thanes nor the lesser thanes among the saxons were subject to the rules of our knight-service : upon whom then ( if it were in use among them ) did it lye ? for as touching the clergy it is said in the laws of edw. the confessor , cap. . that the king and the people magis in ecclesiae confidebant orationibus quam in armorum defensionibus . and the report it self confesseth ( pag. . in pede ) that the possessions of bishops and abbots were first made subject to knight-service in capite by william the conqueror in the fourth year of his reign : for their lands were held in the times of the saxons , in pura & libera eleemosyna , free ab omni servitio seculari , &c. though this be not true in the latter part , ( being strictly taken , ) for no doubt their lands were subject to the trinodi necessitati , viz. expeditioni , pontis arcisque constructioni ( as before appeareth , ) yet cometh it very fitly to my purpose : for hereby it is evident that if the trinodis necessitas made no tenure by knight-service or in capite in the church lands , then neither did it in the thane-lands ( as before we have shew'd ) and then much less in the land of churles and husbandmen commonly call'd the socmanni ; for it is agreed on all hands that their lands were holden no otherwise than by socage . therefore if all kent in the saxon's time were gavelkind , then could there be no tenures by knight-service in all that county . for glanvil ( lib. . c. . ) telleth us , that where the inheritance is divideable among the sons , it is socage : and his reason is , because that where 't is holden by knight-service the primogenitus succedit in toto . this kentish custom was ab initio the general law of england , and of all nations , jews , greeks , romans , and the rest , and so continueth even till this day , where the feodal law hath not altered it ; which first happen'd here in england , when the normans introducing their feuds settled the whole inheritance of them upon the eldest son , which the ancient feodal law it self did not ( as we before have noted ) till feuds were grown perpetual . the reason as i take it that begat this alteration , was for that while the feud did descend in gavelkind to the sons and nephews of the feodatorie , the services were suspended till the lord had chosen which of the sons he would have for his tenant , and then it was uncertain whether the party chosen would accept of the feud or not ; for sometimes there might be reasons to refuse it . to return where i left ; it makes to the proof of all this that has been said , and ( for conclusion ) seems to be unanswerable , that the old inheritance which in the saxons time belong'd to the crown , called in doomsday terra regis , and in the law books antient demesne , containing a great part of every county , had not any lands within it ( or within any mannor thereof ) holden by knight-service . for fitz-herbert saith , that nul terres sont antient demesne forsque terres tenus en socage . and therefore if the tenant in ancient demesne will claim to hold of the lord by knights-service , it is good cause to remove the plea , because that no lands holden of a mannor which is antient demesne are holden by other services of the lord than by socage : for the tenants in antient demesne are call'd socmanni , that is to say , tenants del carve , angl. le plough . thus far fitz-herbert . now if in the mannors of the king himself , there were then no lands holden by knight-service throughout all england , it will then in all probability follow , that there were none likewise among his subjects in the saxons time , and consequently that our feudal law was not introduc'd before the conquest . mr. cambden by their own confession is of the same opinion ; and mr. selden himself , whom they alledge against me , is clearly with me ; as before i have shew'd . if these our three opinions avail nothing , we have yet a fourth to strengthen us , great bracton the most learned in our ancient laws and customs , that hath been in this kingdom ; who speaking of forinsecum servitium as the genus to these tenures , saith , lib. . cap. . nu. . fol. . a. that it was call'd regale servitium , quia spectat ad dominum regem , & non ad alium , & secundum quod in conquestu fuit adinventum . here bracton also refers the invention to the conquest , but the report waveth his opinion as well as ours , notwithstanding his great knowledge , and that he liv'd nearer to the conquest by two third parts of the time than we do . well , there is yet an elder , and one that might see some that liv'd in the conqueror's time , the author of the black-book of the chequer : who speaking of the saxon laws and those of the conqueror saith , cap. . fol. . b. quasdam reprobavit , quasdam autem approbans , illis transmarinas neustriae ( id est normanniae ) leges quae ad regni pacem tuendam efficacissimae videbantur , adjecit . what were those neustrian laws or what could they be ( in all the books of the law ) for preserving peace , save military tenures ? and the exchequer it self , where the cognisance of all these tenures lyeth , was brought in also by the conqueror . but ingulphus the abbot of croyland , liv'd long in the conqueror's time , and was one of his domesticks or familiars , as he termeth himself . and by him it appeareth that the conqueror not only generally dispossess'd the saxons and gave their lands to his normans and others , but chang'd also their manner of conveyance , the form of their charters , and the course of making knights , whereupon all the rules of knight-service have since depended , see his words p. . for at that time miles & per militiam tenens were all one by glanvils testimony , lib. . ca. . p. . but when all fails , i hope they will believe the conqueror himself , who in a charter of his laws and a great council of the kingdom , which we now call a parliament , publish'd by mr. lambard , useth these words . statuimus & sirmiter praecipimus , ut omnes comites , & barones , & milites , & servientes , & universi liberi homines totius regni nostri praedicti , habeant & teneant se semper bene in armis , & in equis , ut decet & oportet . et quod sint semper prompti & parati ad servitium suum integrum nobis explendum & peragendum , cum semper opus adfuerit , secundum quod nobis debent de feodis & tenementis suis de jure , facere , & sicut illis statuimus per commune consilium totius regni nostri praedicti , & illis dedimus & concessimus in feodis jure haereditatio . hoc praeceptum non sit violatum ullo modo super forisfacturam plenam . here the word statuimus , &c. sheweth that it was the conqueror's institution , and concessimus in feodis jure haereditario , implyeth that feuds were not hereditary before this grant . but there may lye the same objection against it which my self made against the like in edw. the confessor's laws , that it is in a differing letter from the rest of the text , and not found in the copy left unto us by roger hoveden . i acknowledge it , but i see that here every thing agreeth with the manners , laws , time , and idiom of the conqueror . and i conceive that it is fallen out as it did of old in the councils of nice and sardis , and many other too , several councils to be joyn'd together . for hoveden mentioneth his copy to be decretum in civitate claudia , that is gloster : but lambard his , to be in civitate londra , london : so that they seem two several constitutions made at several times and places , and here put together into one . howsoever it be , 't is very observable ; for it discovereth that which elsewhere we meet not with so perspicuously related , that the great dignities of earls and barons or ministerial thanes , which before were arbitrable or but for life , and those also of the lesser sort ( which enjoy'd the knights fees no otherwise than in the same manner ) were either now erected with us or made hereditary , according to the testimony of the feodal law before recited . 'till now therefore there could no wardship , marriage , releif , or other feodal servitudes ( thereupon depending ) be amongst us ; nor could the word feodum be taken for haereditas , the one being formerly contrary to the other . for cujacius and the feudists , feud . lib. . tit. . p. . make proprietas , alodium , & haereditas to be all one in feodal sense ; and feodum to be contrary to them all , as res alienae proprietatis , servituti obnoxia , & successionis coercitae ; and being until this time not hereditary but arbitrable . the course being thus chang'd by the conqueror , was presently pursued here in england according to the norman manner as appeareth in doomsday , where it is said , habet — in eodem feudo de w. comite radulpho de limes . carucat ▪ terrae sicut fit in normannia . he joyneth normannia with feudum , as to shew us whence it came , and where we should see the pattern of it . the old saxon manner of dividing the kingdom by hydes , and levying souldiers according to the hydes , grew now out of use ; and instead thereof the kings wars to be supplied by knights fees , the number whereof shortly after were accompted , as sprott the monk of canterbury relateth , to . and of them he saith . were in the clergies hand . the normans also chang'd the name of an hyde of land and call'd it carruè a plough land , and as it seemeth in erecting and laying forth their knight's fees , assign'd ordinarily two carrues or plough land to a knights fee. for 't is noted out of the black register of st. edmunds-bury , that will. the conqueror gave to baldwin then abbot there , octoginta carucatas terrae unde feodaret quadraginta milites . and according to the rate of so much land in those times , is a knights fee at this day valued in the law books but at five pounds . chap. xxviii . the conclusion . i will wander no further in this argument ; i suppose i may be bold ( out of that which is already said ) to conclude that i was not mistaken in referring the original of our feuds in england to the norman conquest : and that my conjecture doth not cross the force of any law. but now i come to an end , i must discover a great mistaking committed by him that drew the breviate for the reverend judges ; for he hath made us all on both sides , like pan in ovid , to towse a reed-sheaf instead of syrinx , or like ixion to embrace a cloud instead of juno , to labour much about a surmis'd assertion of his own , instead of that which i deliver'd . the truth is , i have no where refer'd the original of feuds in england to the norman conquest . nay , when i spake of them , i said habentur plurima , quae apprime huc conducunt in anglo saxonum nostrorum legibus , and this i still affirm ; but my words which he hath much perverted are these , feodorum servitutes in britanniam nostram primus invexit gulielmus senior . it was neither my words nor my meaning to say , that he first brought in either feuds or military service in a general sense , but that he brought in the servitudes and grievances of feuds , viz. wardship , marriage , and such like , which to this day were never known to other nations that are govern'd by the feodal law. there is great difference between servitia militaria and servitutes militares : the one , heroick , noble and full of glory , which might not therefore be permitted in old time to any that was not born of free parents ; no , not to a king's son ( as appeareth in virgil , ) wherein our saxons also were very cautelous , and accounted a souldiers shield to be insigne libertatis : the other , not ignoble only and servile , but deriv'd even from very bondage . let not this offend : i will say no more . . julii . finis . two discourses : i. of the ancient government of england . ii. of parliaments . by sir henry spelman kt. publish'd from the original manuscripts . sapientia , & disciplina , & scientia legum apud deum : dilectio & via bonorum apud eum . wisdom , and knowledge , and understanding of the law are of god : and love and good works come of him . ecclus . . . of the ancient government of england . to tell the government of england under the old saxon laws , seemeth an vtopia to us present ; strange and uncouth : yet can there be no period assign'd , wherein either the frame of those laws was abolished , or this of ours entertained ; but as day and night creep insensibly one upon the other , so also hath this alteration grown upon us unsensibly , every age altering something , and no age seeing more than what themselves are actors in , nor thinking it to have been otherwise than as themselves discover it by the present . like them of china , who never travailing out of their own countrey ; think the whole world to extend no further . as one therefore that hath coasted a little further into former times , i will offer unto you a rude mapp thereof ; not like those of the exquisite cosmographers of our later ages , but like them of old , when as neither cross sails nor compass , were yet known to navigators . our saxons , though divided into many kingdoms , yet were they all one in effect , in manners , laws , and language ; so that the breaking of their government into many kingdoms , or the reuniting of their kingdoms into a monarchy , wrought little or no change amongst them touching laws . for though we talk of the west-saxon law , the mercian law , and the dane law , whereby the west parts of england , the middle parts , and those of norfolk , suffolk , and the north , were severally governed ; yet held they all an uniformity in substance , differing rather in their mulct than in their canea , that is in the quantity of fines and amercements , than in the course and frame of justice . therefore , when all these kingdoms grew into one monarchy , as under alured , ethelstane , edgar , &c , this bred no notable innovation in any of them ; for the king had no new law to impose upon his new subjects , nor were his new subjects unacquainted with his form of government ; having always liv'd according to the same . so that when edward the confessor came to take away these small differences that were between these three laws , he did it even in these fickle and unconstant times without all tumult or contradiction ; making that his alteration famous rather by the new name , than by the new matter . for abolishing the three particular names before-mentioned , he now call'd it the common law of england , for that no part of the kingdom should henceforth be governed by any particular law , but all alike by a common law. but insomuch as this common law is but the half arch of the government , tending only to the temporal part thereof , and not unto the ecclesiastical ; i cannot well present the one without the other , and must therefore make a project of the whole arch , that so the strength and uniformity of both the parts may the better be conceived . as therefore each side of an arch descendeth alike from the coane or top-point ; so both the parts of that their government was alike deduced from the king , each of them holding correspondency one with the other ( like two loving sisters ) both in aspect , and in lineaments . to begin with the right side or eldest sister : the estate ecclesiastical was first divided into provinces : every province into many bishopricks : every bishoprick into many arch-deaconries : every arch-deaconry into divers deanries : every deanry into many parishes . and all these committed to their several governours ; parsons , deans , arch-deacons , bishops and arch-bishops ; who , as subordinate one to the other , did not only execute the charge of these their several portions : but were accoumptant also for the same to their superiours . the parson as ima species , was to hear and determine the breaches of god's peace , of love , and charity , within his parish : to reprove the inordinate life of his parishoners : and tho' he could not strike with the ecclesiastical sword , yet might he shake it against them by enjyoning notorious offenders to contrition , repentance , satisfaction ; and sometime by removing them from the blessed sacrament . the dean , to take cognisance of the life and conversation of the parsons and clergy-men of every parish within his deanry : to censure breach of church-peace , and to punish incontinent and infamous livers by excommunication , pennance , &c. and because there could be no breach of the king's peace ; but it must also break the peace and unity of the church ; the bishop's dean , in whose deanry the peace was broken , had in some cases s. for his part of the mulct , or fine thereof ; as appeareth ll. ed. confess . cap. . the arch-deacon , drawing nearer to the bishop , drew the more preeminence from him , and was his coadjutor in the ordination of clarkes , having a superintendent power over all parochial parsons within every deanry of his precinct . the bishop , as the greatest orb of the diocess , had jurisdiction and coertion through the same , in all ecclesiastical causes , and on all persons ; except monasteries exempted . and for this purpose had two general synods in the year , wherein all the clergy of his diocess assembled for determining matters touching the church , as well in faith , as in government . but the arch-bishop ( to bind up this golden fagot in the band of union and conformity ) comprehended all the bishops of his province sub pallio suae plenitudinis , or sub plenitudine potestatis ; having supreme jurisdiction to visit and reform in all their diocesses whatsoever was defective or omitted . that by this means no transgression might break through so many wards , but if it escaped the sword of hasael , jehu might slay it ; or if it passed them both , yet elisha might light upon it . this was the modell of the church policy ; composed no doubt out of that fundamental rule of government prescribed by jethro unto moses : appoint rulers over thousands , over hundreds , over fifties , and over tens . according to the steps whereof the state temporal did likewise take her lineaments . for the temporal government was likewise divided into satrapies or dukedoms , which contained in them divers counties ; the county divers lathes or trithings ; every trithing divers hundreds or wapentakes ; every hundred divers towns or lordships , shortly after called baronies . and the government of all these were committed to their several heads ; viz. towns or mannours to the lords thereof , whom the saxons called theings , after barons ; hundreds to the lords of the hundreds : trithings or lathes to their trithingreves ; counties to their earls or aldermen ; and the larger satrapies to their dukes or chief princes . all which had subordinate authority one under the other ; and did within the precinct of their own territories minister justice unto their subjects . for the theinge or lord of the town , ( whom the normans called a baron ) had of old jurisdiction over them of his own town , ( being as it were his colony ; ) and as cornelius tacitus saith , did agricolis suis jus dicere . for those whom we now call tenants , were in those ancient times but husbandmen dwelling upon the soil of the lord , and manuring the same , on such conditions , as the lord assigned ; or else such as were their followers in the wars , and had therefore portions of ground appointed unto them in respect of that service ; which portion was thereupon called a knights-fee , for that a servant in the war , whom the saxons called a knight , had it allotted unto him as the fee , or wages of his service . neither at the first had they these their fees , but at the lord's pleasure , or for a time limited ; and therefore both these kinds of military and husbandmen dwelling upon the town or colony of the lord , were ( as in reason they ought ) under the censure and will of their lord touching the lands they ocucpy'd ; who therefore set them laws and customs , how and in what manner they should possess these their lands ▪ and as any controversy rose about them , the lord assembling the rest of his followers , did by their opinion and assistance judge it . out of which usage , the court-barons took their beginning , and the lords of towns and mannours gain'd the priviledge of holding plea and jurisdiction within those their territories over their tenants and followers ; who thereupon are at this day called sectatores , in french suitres , of suivre to follow . but the saxons themselves called this jurisdiction sacha and soca , signifying thereby causarum actionem and libertatem judicandi ; for sacha signifieth causa , in which sense we yet use it , as when we say , for god's sake ; and soca signifieth liberty or priviledge , as cyri●socne , libertas ecclesiae . but by this manner the lords of towns ( as ex con●●etudine regni ) came to have jurisdiction over their tenants and followers , and to hold plea of all things touching land . but as touching cognizance in criminal matters , they had not otherwise to meddle therewith than by the king's charters . for as touching the king's peace , every hundred was divided into many freeborgs or tithings consisting of ten men , which stood all bound one for the other , and did amongst themselves punish small matters in their court for that purpose , called the lete ; which was sometime granted over to the lords of mannours , and sometime exercised by peculiar officers . but the greater things were also carryed from thence into the hundred courts ; so that both the streams of civil justice , and of criminal , did there meet , and were decided by the hundreds , &c , as by superiour judges both to the court baron , and court leet also . edward the confessor ( ll. ca. . ) saith , that there were justices over every ten freeborgs , called deans , or tienheofod , ( that is , head of ten ) which among their neighbours in towns compounded matters of trespasses done in pastures , meadows , corn , and other strifes rising among them . but the greater matters , saith he , were referred to superiour justices appointed over every ten of them , whom we may call centurions , centenaries , or hundradors , because they judged over an hundred freeborgs . the lord of the hundred therefore had jurisdiction over all the towns of the hundred , as well in criminal matters , as in civil ; and they that failed of their right in the court barons , tithings , or leets , might now prosecute it here before the lord of the hundred , and his followers , called the suitors of the hundred , which were the lords and owners of lands within that hundred : who were tyed to be there at every court ; which as appeareth by the laws of h. i. ca. . was to be holden twelve times in the year , that is , once every month : but especially a full appearance was required twice in the year ; in memory whereof the suitors are at this day called at our lady and michaelmass courts , by the steward of the hundred . these ( as i said before ) held piea of trespasses done in pastures , meadows , corn and such like , and of other strifes arising between neighbour and neighbour , and ( as by and by also shall be shewed ) of criminal matters , touching the very life of a man. decrevit tum porro aluredus , &c. king alured then further decreed , that every free-man should be settled in some hundred and appointed to some freeborg or tithing , ( as did also canutus ll. par . . cap. . ) and that the heads of these tithings or freeborg ( whom we now call capitales plegii ) should judge the smaller matters ( as in leets , &c. ) but should reserve the greater for the hundred court ; and those of most difficulty , to the alderman and sheriff in the county court , lamb. voc . centuria . the order of which proceedings in the hundred court do there also appear out of the laws of king ethelred made in a great assembly at vanatinge cap. . in singulis centuriis comitia sunto , &c. let the courts be holden in every hundred , and let twelve men of the elder sort together with the reve ( of the hundred ) holding their hands upon some holy thing , take their oath that they shall neither condemn any man that is innocent , nor quit him that is guilty . and it seemeth by the laws of canutus , ( par . . cap. . & . ) that a man was not to be delayed above three court days from having his right : for if he were , he might then resort to the county ; and if he obtained it not there within four courts , then he might seek unto the king. and no doubt , but this law opened a great gap for the carrying of matters from the hundred and county courts up to the king 's court. the jurisdiction also of this court seemeth to be further abated by h. i. who , tho' he establish'd the ancient manner of holding it ; yet pulled he from it some principal parts thereof ; as after shall appear in a writ of his , touching this and the county court , directed to the sheriff of worcester , ( ms. co. pa. inter . & . ) the thrithingreve or leidgreve ( whom i take to be the same called in the salic laws tungimus ; but doubt whether he or no , that in our laws of h. i. is called thungrevius ) was an officer that had authority over the third part of the county , or three or more hundreds , or wapentakes ; whose territory was thereupon called a thrithing , otherwise a leid or lath ; in which manner the county of kent is yet divided : and the rapes in sussex seem to answer the same : and perhaps the ridings also of yorkshire ; being now corruptly so called for tridings or thrithings . those things therefore that could not be determined in the hundred-courts either for difficulty or miscarriage thereof ; were from thence brought unto the trithing : where all the principal men of three or more hundreds being assembled , did debate and determine it : or if they could not , did then send it up nnto the county court to be there decided , as in parliament , by the whole body of the county . this appeareth by the laws of edward the confessor ( cap. . ) where it is said , erant & aliae potestates super wapentachia , quas vocabant ðriðingas , &c. that is , there were other jurisdictions over wapentakes ( or hundreds ) which they called thrithings , because they contained a third part of the province ( or county . ) and those that governed these thrithings , were thereupon called thrithingreves : before whom were brought all causes that could not be determined in the wapentakes or hundreds . tho' i find no such division of our county of norfolk ; yet i see the use thereof remained there , both till and after the times of the conquest . for william rufus in a controversie of the abbot of ramsie's about the town of holme in norfolk , sent his writ to h. chamberlyn then trithingreve , ( as it seemeth ) over that part of the county , commanding him to assemble three hundreds and an half at a place called fli●ham-burrough , ( which to this day beareth that name , and is the site of the hundred of frebridge ) there to determine the said controversie : which writ for reviewing of the ancient customs of the kingdom , i will here adjoin , as it standeth in the book of ramsey abbey , sect. . willielmus rex angl. h. camerario salutem : fac convenire & consedere tres hundredos & dimidium apud flicceham-burgh propter terram illam de holm quae pertinet ad ringstedam , & quam abbas ramesiae reclamat ad victum & vestitum monachorum suorum : et si abbas poterit ostendere ratione & testimonio comprovincialium , quod antecessor illius eandem terram habuerit eo die quo pater meus fuit vivus & mortuus , tunc praecipio ut illam terram , & omnia quae juste pertinent ad abbathiam suam pacifice & honorifice habeat . teste r. bigod apud wind. out of which writ i conjecture that this h. camerarius to whom it was directed , might be trithingreve of that part of the county ; the rather for that the writ nameth him not vicecomes as in the next precedent it doth another man , viz. will. rex , o. vicecomiti salutem , &c. and that these three hundreds and an half were to be judges of the cause , it appeareth by the words fac consedere , that is , cause them to sit down together . for magistrorum & judicum est sedere , famulorum & ministrorum stare . therefore it is said , exod. . . moses sat to judge the people , and the people stood about him : whereupon hugo also noteth , magistrorum est sedere . to this purpose also is the law of h. i. ca. . si aliquis in hundr●… agendorum penuria * judicium , vel casu aliquo transferendum sit in d●us vel tres vel amplius hundredos respectetur justo fine claudendum . ( qu. ) but it seemeth that these judges were sworn to do right , as well as those before mentioned in the hundred court. and that our course now used for taking a jury out of many hundreds in the county , for tryal of a cause arising in one hundred , took the beginning from the tryal in the trithing , and that thereupon the trithing court grew out of use . the alderman of the county , whom confusedly they call an earl , was in parallel equal with the bishop , and therefore both their estimations valued alike in the laws of ethelstane at eight thousand thrymses . he was a man learned in the laws , and had the government of the whole shire , and cognizance over all inferiour courts and persons , both in civil matters and criminal . for which purpose he held his ordinary court by the shreve , once every month : and there resorted as suitors , and bound by duty , all the lords of mannours , and principal men of the county , with the rest of the free-holders , who were not only assistants , but judges with him of all matters there depending , whether entred there originally , or coming thither by appeal or provocation from the inferiour courts . ll. edw. senioris , cap. ult . ic ƿille ðat aelc geresa hebbe gemo●e , &c. i will that every sheriff hold his court about every four weeks , and that he do right equally to every man , and make an end of all suites , under the pain before expressed . as the bishop had twice in the year two general synods wherein all the clergy of his diocess of all sorts were ty'd to resort for matters concerning the church ; so also was there twice in the year a general assembly of all the shire for matters concerning the common-wealth ; wherein , without exception , all kind of estates were required to be present , dukes , earls , barons , and so downward , of the laity ; and especially the bishop of that diocess among the clergy . for in those days the temporal lords did often sit in synod with the bishops , and the bishops in like manner in the courts of the temporalty , and were therein ( as by and by shall appear ) not only necessary , but principal judges themselves ; ll. canuti regis , par . . ca. . the shyre-gemot ( for so the saxons called this assembly of the whole shire ) shall be kept twice a year ( and oftner if need require ) wherein the bishop and the alderman of the shire shall be present ; the one to teach the laws of god , the other the law of the land. this great assembly was by the laws of ethelstan ( ca. . ) to be proclaimed or published a sennight before hand ; and every man tyed thereupon to be present at it , and in the mean time either to satisfie the wrong he had done to another , or to undergo the penalty ; which if he refused , all he had was presently to be se●sed , and himself put to find sureties for his appearance to answer . but because this notable assembly ( otherwise called by the authors of that time mallum and placitum generale ) was the supreme court of county-justice , wherein all things of what sort soever were to be determined : we will take a little scope in description thereof : shewing first more particularly , who were bound to give their attendance here : then , what lay in cognizance of this court : and thirdly , in what steps they proceeded to the determination of the same . all which , because they cannot be more authentically delivered , then out of the law it self ; i will even from thence report it as it standeth in ll. h. i. ca. . sicut antiqua fuerat institutione formatum , &c. as it was devised by an ancient institution , and confirmed by true report , that the general pleas of the counties ought to be assembled in every province of england at certain places , and before certain judges , at certain times thereto appointed ; and that none should be put to further trouble unless the king 's own necessity , or the common good of the kingdom required it : therefore the bishops , earls , sheriffs , heretoches or marshals of armies , trithingreves , leidgreves , lieutenants , hundredors , aldermen , magistrates , reves , barons , vavasors , thungreves and other lords of land , must be all diligently attending ( at these assemblies ) lest that the lewdness of offenders , the misdemeanor gravionum ( i. of sheriffs ) and the ordinary corruption of judges escaping unpunished , make a miserable spoil of the people . first , let the laws of true christianity ( which we call the ecclesiastical ) be fully executed with due satisfaction ; then let the pleas concerning the king be dealt with ; and lastly , those between party and party ; and whomsoever the church-synod shall find at variance , let them either make an accord between them in love , or sequester them by their sentence of excommunication , &c. whereby it appeareth , that ecclesiastical causes were at that time under the cognizance of this court. but i take them to be such ecclesiastical causes , as were grounded upon the ecclesiastical laws made by the kings themselves for the government of the church ( for many such there were almost in every king's time , ) and not for matters rising out of the roman canons , which haply were determinable only before the bishop and his ministers . to proceed . before they entered into any causes ( as it is commanded in the laws of canutus which we mentioned , par . . ca. . ) the bishop ( to use the term of our time which from hence taketh the original ) gave a solemn charge unto the people touching ecclesiastical matters ; opening unto them the rights and reverence of the church , and their duty therein towards god and the king , according to the word of god and divinity . then the alderman in like manner related unto them the laws of the land , and their duty towards god , the king , and common-wealth , according to the rule and tenure thereof . of all which , because i find a notable precedent in a synodal edict made by carolus calvus emperour and king of france , ( in concil . carissiaco . an. dom. . ) i will here add it , not to shew that our saxons took their form of government from the french ; but that both the french and they , as brethren descending from one parent , the german , kept the rights and laws of their natural country . episcopi quinque in suis parochiis , & missi in illorum missaticis , comitesque in eorum comitatibus pariter placita teneant , quo omnes reipub. ministri , & vassi dominici , omnesque quicunque vel quorumcunque homines in iisdem parochiis & comitatibus sine ulla personaram acceptione & excusatione , aut dilatione conveniant , &c. that is , the bishops in their parishes ( or diocesses ) and the justices itinerant or aldermen in their circuits , and the earls in their counties , shall hold their pleas together : whereunto all ministers and officers of the common-wealth , all the king's barons and all other whatsoever they be , or whose tenants soever they be within the same parishes or counties , without any respect of persons , excuse , or delay , shall assemble together : and the bishop of that parish or diocess , having briefly noted sentences touching the matter out of the evangelists , apostles , and prophets , shall read them to the people , and also the decrees apostolick , and canons of the church ; and in open and plain terms shall instruct them all , what manner , and how great a sin it is to violate or spoil the church , and what and how great pennance , and what merciless and severe punishment it requireth ; with other accustomed , necessary and profitable admonishments . the aldermen also , or justices , shall note down such sentences of law as they call to mind ; and shall publish unto them the constitutions of us and our predecessors , kings and emperours , gathered together touching this matter . and the bishops by the authority of god and the apostles ; and the aldermen or justices , and earls , under the penalty of the king's laws ; shall , with all the care they can , prohibit every man of the kingdom from making any prey or spoil of the church , &c. of parliaments . when states are departed from their original constitution , and that original by tract of time worn out of memory ; the succeeding ages viewing what is past by the present , conceive the former to have been like to that they live in , and framing thereupon erroneous propositions , do likewise make thereon erroneous inferences and conclusions . i would not pry too boldly into this ark of secrets : but having seen more parliaments miscarry , yea suffer shipwrack , within these sixteen years past , than in many hundred heretofore , i desire for my understanding's sake to take a view of the beginning and nature of parliaments ; not meddling with them of our time , ( which may displease both court and country , ) but with those of old ; which now are like the siege of troy , matters only of story and discourse . because none shall go beyond me in this argument , i will begin with the foundation of kingdoms , which of necessity must be more ancient than parliaments , for that a parliament is the grand council of the kingdom assembled at the commandment of the king , for advice in matters of state. our first labour is then , to see what this grand-council was originally . it is confest on all hands , that the king is universal lord of his whole territories , and that no man possesseth any part thereof , but deriv'd from him either mediately or immediately . this derivation thus proceeded . the king in the beginning divided his whole territory into two parts , one to be manured by his own tenants and husbandmen ; then call'd socmen . for the kings of england us'd in those days to stock their grounds themselves , like the kings of israel ; and by the profits thereof especially , to maintain their hospitality , their court , and estate ; having in every mannour officers and servants for that purpose . this part was sacrum patrimonium the inseperable inheritance of the crown , call'd in doomsday terra regis , and in law the ancient demaine . and because it belong'd to the husbandry of the king , all that manur'd or held any part of this land , were said to be tenants in socage , and might not be drawn into the wars ; of which nature , as touching their tenure , they continue at this day . the other part of his whole territory he portioned out to military men ; which ( tho' the other was the more profitable ) yet this was always held for the more honourable , and therefore so divided this among his nobles and chief servants and followers for supportation in his wars and royal estate . to some in greater measure , to others in less , according to their merit and qualities . provinces to dukes , counties to earls , castles and signiories unto barons : rendring unto him , not ex pacto vel condicto ( for that was but cautela superabundans ) but of common right and by the law of nations ( for so i may term the feodal-law then to be in our western orb ) all feodal duties and services due from the donees and their heirs , upon every gift , grant , and alienation ; tho' no word were spoken of them . it appeareth by the feodal-law ( from whence all that part of our common-law that concerneth tee and tenures hath original , and which our common-law also affirmeth ; ) that there was always due ..... * those that thus receiv'd their territories from the king , were said to hold them in capite , for that the king is caput regni , and were thereupon call'd capitanei regis and capitanei regni , otherwise barones regis , the king's men , tenants or vassals : who having all the land divided amongst them , saving that which the king reserv'd to himself as sacrum patrimonium , were also call'd pares regni , and were always upon commandment about the person of the king , to defend him and his territories in war , and to counsel and advise him in peace , either judicially in matters of law brought before the king in his palace , which in those days was the only place of royal justice : or politically in the great affairs of the kingdom . hereupon , they were not only call'd praetorianum consilium , as belonging to the king's palace , but magnum concilium regis , and magnum concilium regni . for that in those times , it belonged only to them , to consult with the king on state-matters and matters of the kingdom ; insomuch as no other in the kingdom possessed any thing but under them . and therefore , as in despotical government , the agreement or disagreement of the master of the family concluded the menial and the whole family ; so the agreement and disagreement of the chief lord or him that held in capite , concluded all that depended on him or claimed under him , in any matter touching his fee or tenure . to this purpose , seemeth that in the laws of edward the confessor , ratified by the conqueror : debet etiam rex omnia ritè facere in regno , & per judicium proc●rum regni . these great lords , according to this archetype of government set them by the king , divided their lands in like manner among their tenants and followers . first , they assign'd a portion ad victum & vestitum suum , which they committed over to their socmen and husbandmen , to furnish them with corn , victuals , and provision for hospitality ; and briefly , all things necessary to their domestical and civil part of life . the residue they divided into as many shares or portions as might well maintain so many military men , whom then they call'd their knights , and thereupon the shares themselves knights-fees , i. e. stipendia militaria . and these fees they granted over to each of their principal followers , furnishing them with so many knights for the wars . these grantees that receiv'd their estates from the barons or capitanei and not from the king , were called valvasores ( a degree above knights , ) and were unto their lords ( the capitanei or barones regis ) as they the capitanei were unto the king : and did in like manner subdivide their lands among their socmen and military followers , who in old time were call'd valvasini ; whom i take to be the same at this day that are the lords of every mannour , if not those themselves that we call knights , as owners of a knights-fee . for in this , the feodal-law it self is doubtful and various , as of a thing lost by antiquity or made uncertain by the differing manners of several nations . insomuch , that valvasores and valvasini grew to be confounded , and both of them at last to be out of use , and no other military tenures to be known amongst us , than tenere p●r baroniam , and tenere per feodum militare . but in a charter of henr. i. it is said : si exurgat placitum de divisione terrarum , si interest barones meos dominicos , tractetur in curia mea ; & si inter vavassores duorum dominorum , tractetur in comitatu , &c. where the valvasores were also , and the barons themselves , suitors and attendants . bracton mentioneth them in henry iii's time , to be viri magnae dignitatis . nor was their memory clean gone in richard ii's days ; as appeareth by chaucer . yet do i not find in any of our ancient laws or monuments , that they stood in any classick kind of tenure , other than that we may account the baron , vavasor , and knight , to be ( as our lawyers at this day term them ) the chief lord , mesne , and tenant . but herein the feodal-law of our country differ'd from that of milan and other parts . for there the valvasini could invest ( which we call infeosse ) none under them in fee , that is , to hold of them by knights-service . and with us , every tenant par aval might in infinitum , till the statute of quia emptores terrarum , enfeoffe another by knight-service , and to do all the services unto him , that he did to his mesne lord. so that by this means , a line of knights-services might be created of a dozen , yea twenty mean-lords and tenants , wherein every of them might have his prochine tenant obliged unto him in the duties and services that his lord paramont , which held of the king , was to do and yeild unto the king himself for the same lands , viz. honour , ward , sustenance ,     safety , marriage ,   give keep   attendance , relief , counsel to aid , defence of his person , tribute , fidelity .   defence of his patrimony ,         all which in ancient time , while the feodal-law flourished , were well understood to be comprehended under the profession of homage and the oath of fidelity , which every feodal tenant ( or , as others call him , vassal ) usually did unto his lord. honour ; promis'd by the tenant upon his knees in doing homage : which tho' it be the greatest and most submiss service that a freeman can do unto his lord , yet the profession of it to the meanest subject is as ample and submiss ; yea , in the very same words that to the king himself . attendance ; to follow and attend him in the war at his own charge ; and in peace with suite of court. therefore tacitus calleth them comites . defence of his person ; for if he forsook his lord being in danger , it was forfeiture of life , land , and all he had . defence of his signiory ; that nothing of his lands , rents , or services , were withholden or withdrawn . profit by ward , marriage , and relief , as they fell . tribute by way of aid ; to make his eldest son a knight ; to marry his eldest daughter , ransom himself being taken prisoner ; yea , in some places to be an hostage for his lord. sustenance ; that being faln into poverty , ( according to that in the canon law spoken of a patron ) alatur egenus . counsel and advice ; in which respect the tenant was bound ordinarily once in every three weeks to come to his lord's court , and there as a judge ( with other of his peers ) to censure the causes of his signiory , and to direct his lord , as the cause occurrent did require , and always to keep his counsel . this to the meanest lord was in the nature of the king 's great court or counsel , call'd afterward a parlyment . fidelity ; for to all these was the tenant by knights-service ty'd by his oath of fealty , swearing to be feal and leal : as the oath was at those times interpreted as well by divines and canonists , as by feodists and lawyers . and as these were inherent to this tenure of common right ; so was there many other grievous exactions impos'd by the lords upon their tenants ; some by custom of the mannour ; some by composition upon granting the fee ; and many by signioral authority , as tho' the lord besides his legal power , might do some things ( like the king ) by prerogative . by custom , when the lord or lady came into the mannour , the bailiff was to present them oras denar . and every of their servants s. with some summs of mony as gratuities , ut essent laeti animo . that the tenants should pay d. for every daughter they married . it was an ordinary custom , that lords might take ( not only of their tenants , but of all the country thereabout ) victuals and all other necessaries for furnishing their castles ; which how grievous it was , may well enough be conceiv'd , tho' the statute that restrain'd it , did not testifie it . so other lords took provision for their houshold and hospitality , within their mannours . by composition ; as to have their tenants attend them with horse and man in their journies ; whom they call'd road-knights . to present them yearly at times , horses , hawks , and other things of profit and pleasure . by signioral authority ; as to lye and feast themselves and followers ( call'd coshering ) at their tenants houses ; and when any matter of extraordinary charge fell upon them , then to extort the same amongst their tenants ; which the irish , about fourty years since , of my own knowledge still continu'd , calling it cuttings , according to our old word tallagium . but among us it was taken away by the magna charta of king john. i speak not of the innumerable carriages , angaries , and vexations , with which they otherwise harrowed if not plagued their tenants . yet must i not let that pass , which every where was then in use , for lords of castles to imprison men at pleasure , to hold and keep distresses there against common justice , and to do many outrages all about them . wherein the lords of mannours imitating them , would also imprison their tenants and followers ; which custom i saw also yet not laid down in ireland , fourty years since . for a meane-lord would ordinarily say upon offence taken against a churle , &c. take him and put him in bolts . but let matthew paris , who liv'd long after many of these oppressions were abolish'd , tell you the fashions of those times * . every lord having this authority over his tenant , the superiour as comprehending them all and holding in capite , was tyed to the king to see all under his tenure to be of good government , good behaviour , and forth-coming whensoever they should be demanded to answer any misdemeanour . this appeareth by the laws of edward the confessor , where it is said , archiepiscopi , episcopi , comites , barones , & omnes qui habuerint sacam & socam , &c. milites & proprios servientes sc . dapiferos , pincernas , &c. sub suo friburgo habeant . that is , sub sua fide-jussione de se bene gerendo . by reason whereof , whatsoever those their lords agreed or disagreed unto in matters of the state and common-wealth , it did bind every of them their inferiors . unto whom they themselves might then also appoint laws and ordinances in their own courts . and this is that which tacitus affirmeth to have been the ancient manner of the germans our ancestors ; agricolis suis jus dicere : where under the word agricolis , he intendeth all them whom we call tenants . hence then it comes to pass , that in making laws of the kingdom , the common people were not consulted with , but only the barons and those which held in capite , who then were call'd consilium regni . and the common people being , as i said , by way of tenure under one or other of them , did then by him that was their chief lord ( as by their tribune or procurator , and as now by the knights of the shire ) consent or dissent in law-making , and are not therefore nam'd in the title of any ancient law. look doomsday-book , and there ye shall see the whole kingdom divided only among the barons and great persons : and the whole commons of the kingdom distributed and plac'd under some of them , tho' not by name , yet by number in their several qualities . let us then see , how the practice of those ancient ages agreed with this theoreme . king ina made his laws by the advice of kenred his father , and ( as he saith himself ) heddis & erkenwaldi episcoporum meorum , & omnium aldermannorum ( i. e. procerum ) meorum , & seniorum sapientum regni mei , & multa aggregatione servorum dei , which is of church-men , as i take it . alured briefly , consilio sapientum meorum . edward the elder proposeth his laws not as senatus-consultum but as edictum principis ; viz. ego edouardus rex , iis omnibus qui reipub. praesunt , etiam atque etiam mando , ut , &c. and after by the absolute words , praecipio , statuimus , volo . yet those wherein he and guthrun the dane joyned , are call'd senatus-consulta . ethelstane made his , ex prudenti vlfhelmae archiepiscopi aliorumque episcoporum suorum consilio , nec-non omnium optimatum & sapientum mandato suo congregatorum . edmund , in a great assembly , tam ecclesiasticorum quàm laicorum , cui interfuerunt oda & wulstanus archiep. plurimique alii episcopi . edgar , in frequenti sapientum senatu . ethelred , in sapientum concilio . canuius saith , sapientum adhibito consilio per omnem angliam observari praecipio . as for edward the confessor , his laws come not to us as they were composed by himself , but as the paragraphs of them were collected by the conqueror , and augmented afterward . in which collection , there is no mention made of the manner of their institution . but reciting of a passage of st. austens touching tithes , it is spoken as of former time , that haec concessa sunt à rege , baronibus & populo ; meaning , the several kinds of tithes there mention'd . but whether these words extend to a concession of them by parlament ( as we now call it , ) or by a voluntary contribution of them , yeilded unto by the king , the barons , and the people , according to the canons of the church , i leave to others to determine . to come to times of the conquerour ; wherein novus seclorum nascitur ordo ; and from whence , as from a new period , we must now take all our projections . the great establishment of his own and of edward the confessor's laws , is said in the title to be that which gulielmus rex anglorum cum principibus suis constituit post conquisitionem angliae . other authors instead of principibus have barones . and tho' all his laws for the most part were ordain'd by his charter in his own name only , yet they seem to be made by the consent of the bishops and barons . for in his charter whereby he divideth the court-christian from the temporal , he saith thus — sciatis — quod episcopales leges — communi concilio & consilio archiepiscoporum meorum & caeterorum episcoporum & abbatum , & omnium principum regni mei emendandas judicavi . and this seemeth to be that same commune concilium totius regni , whereby he made the laws he speaketh of in his charter of the great establishment aforesaid . william rufus in an. . calls episcopos , abbates cunctosque regni principes to a council at rochingheham , . id. mar. henry i. de communi concilio gentis anglorum ( saith matthew paris ) posuit dunelmensem episcopum in vinculis . where gentis anglorum might be extended to such a parlament as we use at this day , if the use of that time had born it . but eadmere speaking of a great counsel holden a little after at lambith , calleth it concilium magnatum utriusque ordinis , excluding plainly the commons . and to that effect are also all the other councils of his time . but our later chroniclers following polydore as it seemeth ( for they cite no author ) do affirm that henry i. in the sixteenth year of his reign , held the first parlament of the three estates . the truth whereof i have taken some pains to examine ; but can find nothing to make it good . eadmerus who flourisht at that very time , writing particularly of this council or assembly , saith , xiii . kal. aprilis , factus est conventus episcoporum , abbatum , & principum totius regni apud serberiam , cogente eos illuc sanctione regis henrici i. and among other causes handled there , he sheweth this to be the principal , viz. that the king being to go into normandy , and not knowing how god might dispose of him , he desir'd that the succession might be confirm'd on his son william . whereupon ( saith eadmer ) omnes principes facti sunt homines ipsius willielmi , fide & sacramento confirmati . florentius wigorniensis , who liv'd at that time and dy'd about two years after , reporteth it to the same effect . conventio optimatum & baronum totius angliae apud sealesbiriam . cal. apr. facta est ▪ qui in praesentia regis henrici , homagium filio suo gulielmo fecerunt & fidelitatem ei juraverunt . here is no mention of the commons ; whom in likelyhood they should not have pretermitted , if they had been there assembled , contrary to the usual custom of those times . nor doth any succeeding author that i can find , once touch upon it . i conceive there might a mistaking grow by polydore or some other ; for that many of the commons , if not all , were at this time generally sworn to prince william , as well as the barons were ; and as after in the year . to maud his daughter , prince william being then dead . but i no where find in all the councils ( or parlaments if you so will call them ) of this time , any mention made of any other than the bishops , barons , and great persons of the realm . and so likewise in the time of king stephen . the first alteration that i meet with , is in the twenty second year of hen. ii. where benedict abbas saith , circa festum s. pauli venit dominus rex usque ad northampton , & magnum ibi celebravit concilium de statutis regni sui , coram episcopis , comitibus , & baronibus terrae suae , & per consilium militum & hominum suorum . here militum & hominum suorum extendeth beyond the barons , and agreeth with the charter of king john , as after shall appear . yet hoveden speaking of this council , doth not mention them ; but only termeth it magnum concilium . but there hapn'd about this time a notable alteration in the common-wealth . for the great lords and owners of towns which before manur'd their lands by tenants at will , began now generally to grant them estates in fee , and thereby to make a great multitude of free-holders more than had been . who by reason of their several interests , and being not so absolutely ty'd unto their lords as in former time , began now to be a more eminent part in the common-wealth , and more to be respected therefore in making laws , to bind them and their inheritance . but the words militum & hominum suorum , imply such as held of the king in capite not per baroniam , and therefore were no barons ; yet such as by right of their tenure ought to have some voice or patron to speak for them in the councils of the kingdom . for holding of the king , as the barons did , they could not be patronized under them . and doubtless they were not many at this time , tho' much encreased since the making of domesdei ▪ book ; where those few that were then , are mentioned . and it may be , the word hominum , here doth signify those that serv'd for burrough-towns holden of the king ; for it must be understood of tenants not of servants . to grope no further in this darkness . the first certain light that i discover for the form of our parliaments at this day , is , that which riseth fourty years after , in the magna charta of king john. the words whereof i will recite at large , as they stand not only in matthew paris , but also in the red-book of the exchequer , with some little difference hapning in the writing . et civitas londinensis habeat omnes antiquas libertates & liberas consuetudines suas tam per terras quam per aquas . praetereà , volumus & concedimus , quod omnes aliae civitates & burgi , & villae , & barones de quinque portubus , & omnes portus , habeant omnes libertates , & omnes liberas consuetudines suas : et ad habendum commune consilium regni de auxiliis assidendis ( aliter quam in tribus casibus praedictis ) & de scutagiis assidendis ; summoneri faciemus archiepiscopos , episcopos , abbates , comites , & majores barones regni sigillatim per literas nostras . et praetereà faciemus summoneri in generali per vice-comites & ballivos nostros , omnes alias qui in capite tenent de nobis , ad certum diem , scil . ad terminum . dierum ad minus , & ad certum locum ; & in omnibus literis summonitionis illius , causam summonitionis illius exponemus . et sic facta summonitione negotium procedat ad diem assignatum , secundum consilium eorum qui praesentes fuerint , quamvis non omnes summoniti venerint . here is laid forth the members , the matter , and the manner of summoning of a common council of the kingdom ; which as it seemeth was not yet in the records of state call'd a parlament . the members are of three sorts . first , the arch-bishops , bishops , abbots , earls , and the greater barons of the kingdom , so call'd to distinguish them from the lesser barons , which were the lords of mannours . secondly , those ( here before mention'd by bened. abbas to be call'd to clarenden ) that held of the king in capite ; whom i take to be now the knights of the shire . and thirdly , those of cities , burroughs , and towns , call'd burgesses , and the barons of the cinque-ports . the first sort are to appear personally , or by particular proxies ; for the words as touching them are , summoniri faciemus sigillatim : but as touching the others , it is summoniri faciemus generaliter , &c. not that all should come confusedly , but that they should send their advocates , which commonly are but two , to speak for them . these the french in their parliaments call ambasiatores , and syndicos . in the first rank , the earls and greater barons have their place in this council ; for that they hold of the king in capite by a baronie ▪ and the bishops and abbots with them of the second rank : so likewise , for that it was declared and ordained in the council of clarendon , that they should have their possessions of the king as a barony , and should be suiters , and sit in the king's court in judgements , as other barons ; till it came to the diminution of members , or matter of death . but this council of clarendon did rather affirm than give them their priviledge . for the prelates of the church were in all ages the prime part of these great councils . in the third rank , the burgesses and barons of the cinque-ports have their place ; not so much in respect of tenure ( for they were not conceived to be owners of lands ) but for that in taxes and tallages touching their goods and matter of trade , they might have some to speak for them , as well as other members of the kingdom . but here then ariseth a question , how it cometh to pass , that every poor burrough of england , how little soever it be , ( two excepted ) have two to speak for them in this great council , when the greatest counties have no more . it seemeth that those of the counties whom we call knights , served not in ancient time for all the free-holders of the county , as at this day they do , but were only chosen in the behalf of them that held of the king in capite , and were not barones majores barons of the realm . for all freeholders besides them had their lord paramount ( which held in capite to speak for them ) as i have shewed before ; and these only had no body , for that themselves held immediately of the king. therefore king john by his charter did agree to summon them only and no other freeholders ; howbeit those other freeholders , because they could not always be certainly distinguish'd from them that held in capite , ( which encreased daily ) grew by little and little to have voices in election of the knights of the shire , and at last to be confirm'd therein by the stat. . henr. iv. and . henr. vi. but to come to our question , why there are but two knights for a county ? it may well seem to be , for that in those times of old there were very few besides the barons that held in capite , as appeareth by that we have already spoken ; and that two therefore might seem sufficient for these few , as well as two for the greatest burroughs or city of england , except london . and it may be , that of the four which serve for london , two of them be for it as it is a city , and two other as it is a county ; tho' elsewhere it be not so . but when two came first to be chosen or appointed for the rest of the burrough or county , i cannot find . it seemeth by those synods that were holden in the times of the saxon kings , and by some after the conquest , that great numbers of the common people flowed thither . for it is said in an. . cum quamplurimis gregariis militibus , ac cum populi multitudine copiosa : and an. . innumeraque cleri & populi multitudine : and so likewise in an. . and other synods and councils . by what order or limitation , this innumera populi multitudo came to these assemblies , it appeareth not . bartol that famous civilian , and hottoman according with him , thus expoundeth it in other places . nota : quod praesides provinciarum coadunant universale parlamentum provinciae : quod intellige , non quod omnes de provincia debent ad illud ire , sed de omnibus civitatibus deputantur ambasiatores , qui civitatem repraesentant . and johan . de platea likewise saith : vbi super aliquo providendum est , pro utilitate totius provinciae , debet congregari generale concilium seu parlamentum : non quod omnes de provincia vadant , sed de qualibet civitate aliqui ambasiatores vel syndici , qui totam civitatem repraesentent . in quo concilio seu parlamento petitur proponi sanum ac utile consilium . but our burgesses , as it seemeth , in time of old were not call'd to consult of state matters ; being unproper to their education , otherwise than in matter of aide and subsidy . for king john granteth no more unto them , than ad habendum commune consilium regni de auxiliis assid●ndis ; if his charter be so pointed that this clause belong to that of the liberties granted to them : which is very doubtful , and seemeth rather to belong to that which followeth ; otherwise , there are no words at all for calling them unto the great councils , or parlaments ( if you so will term them ) of that time . and yet further , it is to be noted , that this whole branch of his charter , touching the manner of his summoning a great council , was not comprised in the articles ( between him and his barons ) whereupon the charter was grounded ; but gain'd from him , as it seemeth , afterward . and that may be a reason why it is left out in the magna charta of henry iii. confirm'd after by edward i. in such manner as now we have it . the charter of these articles , i have seen under his own seal . after the death of king john , i find many of these great councils holden , and to be often named by the authors of that time colloquia , after the french word parlament ; but no mention in any of them of burgesses ; saving that in an. dom. . regis . it is said , that the king held his christmass at westminster , praesentibus clero & populo , cum magnatibus regionis : and that the solemnity being ended , hugh de burgo the king's justice propounded to the arch-bishop , bishops , earls , barons , & aliis universis , the losses the king had received in france , requiring of them one xv th . and in the year . the king summoneth to westminster archiepiscopos , episcopos , abbates , priores , templarios , hospitalarios , comites , barones , ecclesiarum rectores , & qui de se tenebant in capite ; about the granting a tenth to the pope : wherein those that held in capite are call'd ( as in henr. ii. ) to the council of clarendon , and as the charter of king john purporteth ; but no mention is here made of burgesses . the original of the four terms of the year . by sir henry spelman kt. printed in the year . from a very uncorrect and imperfect copy : now , publish'd from the original manuscript in the bodleian library . sir william dugdale in his origines juridiciales , chap. . pag. . concerning this treatise . i shall here briefly exhibit some particulars , which i acknowledge to have gather'd from an ample and most judicious discourse on this subject , written by the learned sir henry spelman knight , in . very well worthy to be made publick . the occasion of this discourse . about fourty two years since , divers gentlemen in london , studious of antiquities , fram'd themselves into a college or society of antiquaries , appointing to meet every friday weekly in the term at a place agreed of , and for learning sake to confer upon some questions in that faculty , and to sup together . the place , after a meeting or two , became certain at darby-house , where the herald's-office is kept , and two questions were propounded at every meeting , to be handled at the next that followed ; so that every man had a sennight's respite to advise upon them , and then to deliver his opinion . that which seem'd most material , was by one of the company ( chosen for the purpose ) to be enter'd in a book ; that so it might remain unto posterity . the society increased daily : many persons of great worth , as well noble as other learned , joyning themselves unto it . thus it continu'd divers years ; but as all good uses commonly decline ; so many of the chief supporters hereof either dying or withdrawing themselves from london into the country ; this among the rest grew for twenty years to be discontinu'd . but it then came again into the mind of divers principal gentlemen to revive it ; and for that purpose , upon the — day of — in the year . there met at the same place sir james ley knight , then attorney of the court of wards , since earl of marleborough and lord treasurer of england ; sir robert cotton knight and baronett ; sir john davies his majestie 's attorney for ireland ; sir richard st. george knt. then norrey , mr. hackwell the queen's solicitor , mr. camden then clarentieux , my self , and some others . of these , the lord treasurer , sir robert cotton , mr. camden , and my self , had been of the original foundation ; and to my knowledge were all then living of that sort , saving sir john doderidge knight , justice of the king 's bench. we held it sufficient for that time to revive the meeting , and only conceiv'd some rules of government and limitation to be observ'd amongst us ; whereof this was one , that for avoid offence , we should neither meddle with matters of state nor of religion . and agreeing of two questions for the next meeting , we chose mr. hackwell to be our register and the convocator of our assemblies for the present ; and supping together , so departed . one of the questions was , touching the original of the terms ; about which , as being obscure and generally mistaken , i bestow'd some extraordinary pains ; that coming short of others in understanding , i might equal them if i could in diligence . but before our next meeting , we had notice that his majesty took a little mislike of our society ; not being enform'd , that we had resolv'd to decline all matters of state. yet hereupon we forbare to meet again , and so all our labours lost . but mine lying by me , and having been often desir'd of me by some of my friends , i thought good upon a review and augmentation to let it creep abroad in the form you see it , wishing it might be rectify'd by some better judgement . sect . i. of the terms in general . as our law books have nothing , to my knowledge , touching the original of the terms , so were it much better if our chronicles had as little : for tho' it be little they have in that kind , yet is that little very untrue , affirming that william the conquerour did first institute them . it is not worth the examining who was author of the errour , but it seemeth polydore virgil ( an alien in our common-wealth , and not well endenized in our antiquities ) spread it first in print . i purpose not to take it upon any man's word : but , searching for the fountain , will , if i can , deduce them from thence , beginning with their definition . the terms be certain portions of the year , in which only the king's justices hold plea in the high temporal courts of causes belonging to their jurisdiction , in the places thereto assigned , according to the ancient rites and customs of the kingdom . the definition divides it self , and offers these parts to be consider'd . . the names they bear . . the original they come from . . the time they continue . . the persons they are held by . . the causes they deal with . . the place they are kept in . . the rites they are performed with . the parts minister matter for a book at large , but my purpose upon the occasion impos'd , being to deal only with the institution of the terms ; i will travel no farther than the three first stages of my division , ( that is ) touching their name , their original , and their time of continuance . sect . ii. of the names of the terms . the word terminus is of the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifieth the bound , end , or limit of a thing ; here particularly of the time for law matters . in the civil law it also signifieth a day set to the defendant , and in that sense doth bracton , glanvil , and others sometimes use it . mat. paris calleth the sheriff's turn , terminum vicecomitis , and in the addition to the mss. laws of king inas , terminus is applied to the hundred-court ; as also in a charter of hen. i. prescribing the time of holding the court. and we ordinarily use it for any set portion of time , as of life , years , lease , &c. the space between the terms , is named vacation , à vacando , as being leasure from law business ; by latinists justitium , à jure stando , because the law is now at a stop or stand . the civilians and canonists call term-time , dies juridicos law-days ; the vacation , dies feriales , days of leasure or intermission , festival-days , as being indeed sequester'd from troublesome affairs of humane business , and devoted properly to the service of god , and his church . according to this , our saxon and norman ancestors divided the year also between god and the king , calling those days and parts that were assigned to god , dies pacis ecclesiae , the residue alloted to the king , dies or tempus pacis regis . divisum imperium cum jove caesar habet . other names i find none anciently among us , nor the word terminus to be frequent till the age of henry ii. wherein gervasius tilburiensis , and ranulphus de glanvilla ( if those books be theirs ) do continually use it for dies pacis regis . the ancient romans , in like manner , divided their year between their gods and their common-wealth ; naming their law-days or term-time , fastos , because their praetor or judge might then fari , that is speak freely ; their vacation , or days of intermission ( as appointed to the service of their gods ) they called nefastos , for that the praetor might ne fari , not speak in them judicially . ovid ( fastorum lib. . ) thus expresseth it : ille nefastus erat , per quem tria verba silentur : fastus erat per quem lege licebat agi . when that the three judicial words the praetor might not use , it was nefastus : fastus then , when each man freely sues . the three judicial words were do , dico , abdico ; by the first he gave licence to cyte partem ream , the defendant ; by the second he pronounced sentence ; and by the third he granted execution . this à latere . the word term hath also other considerations ; sometimes it is used for the whole space , from the first return to the end of the term , including the day of return , essoigne , exception , &c. sometimes and most commonly excluding these from the first sitting of the judges in full court , ( which is the first day for appearance ) and this is called full term by the statute of . of hen. viii . cap. . as tho' the part precedent were but semi-term , puisne-term , or introitus termini . the words of the statute are these , that trinity-term shall begin the munday next after trinity-sunday , for keeping the essoignes , profers , returns , and other ceremonies heretofore used , &c. and that the full term of the said trinity-term shall yearly for over begin the friday next after corpus christi day . here the particulars i speak of are apparently set forth , and the term declared to begin at the first return . by which reason it falleth out that the eight days wherein the court of the exchequer openeth , at the beginning of michaelmass-term , hilary-term and easter , are to be accounted as parts of those terms , for that they fall within the first return : the exchequer having one return in every of them , more than the courts of common-law have , viz. crastino sancti michaelis , octabis hilarii , and octabis or clausum paschae : and it seemeth that trinity-term had crastino trinitatis in the self same manner , before this statute alter'd it . sect . iii. of the original of terms or law-days . law-days or dies juridici , which we call terms , are upon the matter , as ancient as offences and controversies : god himself held a kind of term in paradice , when judicially he tryed and condemned adam , eve , and the serpent . in all nations , as soon as government was settled , some time was appointed for punishing offences , redressing of wrongs , and determining of controversies ; and this time to every of those nations was their term. the original therefore of the terms or law-days , and the time appointed to them , are like the signs of oblique ascention in astronomy , that rise together . i shall not need to speak any more particularly of this point , but shew it , as it farther offereth it self in our passage , when we treat of the time appointed to term or law-days , which is the next and longest part of this our discourse . sect . iv. of the times assigned to law-matters , called the terms . we are now come to the great arm of our division , which spreads it self into many branches , in handling whereof we shall fall , either necessarily or accidentally , upon these points , viz. . of law-days among the ancients , jews , greeks , &c. . of those among the romans using choice days . . of those among the primitive christians using all alike . . how sunday came to be exempted . . how other festivals , and other vacation days . . that our terms took their original from the canon-law . . the constitutions of our saxon kings ; edward the elder , guthrun the dane , and the synod of eanham under ethelred , touching this matter . . the constitutions of canutus more particular . . the constitutions of edward the confessour more material . . the constitution of william the conquerour : and of law-days in normandy . . what done by william rufus , henry i. stephen , and henry ii. . of hiliary-term according to those ancient laws . . of easter-term in like manner . . of trinity-term and the long vacation following ; how it differeth from the other vacations . . of michaelmass-term . . of the later constitutions of the terms by the statutes of the . of hen. iii. and . of edw. iii. . how trinity-term was alter'd by the . of hen. viii . chap. i. of law-days among the ancients . the time allotted to law-business seemeth to have been that from the beginning amongst all , or most nations , which was not particularly dedicated ( as we said before ) to the service of god or some rites of religion ( for none that i read of , ordain'd them to be us'd confusedly . ) therefore whilst moses was yet under the law of nature , and before the positive law was given , he sacrificed and kept the holy festival with jethro his father-in-law on the one day , but judged not the people till the day after . some particular instance ( i know ) may be given to the contrary , as i after shall mention , but this seemeth then the general use . the greeks , who ( as josephus in his book against appion witnesseth ) had much of their ancient rites from the hebrews , held two of their prytanean-days in every month for civil matters , and the third onely for their sacra . aeschines ▪ in his oration against c●esiphon , chargeth demosthenes with writing a decree in the senate , that the prytanean magistrates might hold an assembly upon the eighth day of the approaching month of elaphebolion , when the holy rites of aesculapius were to be solemnized . the romans likewise ( whether by instinct of nature or precedent ) meddled not with law causes during the times appointed to the worship of their gods , as appeareth by their primitive law of the twelve tables , feriis jurgia amovento , and by the places before cited , as also this of the same author , post semel exta deo data sunt , licet omnia fari , verbaque honoratus libera praetor habet . when sacrifices and holy rites were done , the reverend praetor then his courts begun . and martial to the same purpose , sacra damus ●estis ●ora judicialia ponunt . to be short , it was so common a thing in those days of old , to exempt the times of exercise of religion from all worldly business ; that the barbarous nations , even our angli , whilst they were yet in germany , the suevians themselves , and others of those northern parts would in no wise violate or interrupt it . tacitus says of them , that during this time of holy rites , non bellum ineunt , non arma sumunt , clausum omne ferrum ; pax & quies tun● tantum nota , tun● tantum amata . of our german ancestors we shall speak more anon ; our old british are little to the purpose : they judged all controversies by their priests the druides , and to that end met but once a year , as caesar sheweth us by those of the gauls . the later britains ( whom we now call the wesh ) in the saxons time about the year . had two terms only for causes of inheritance ; the one beginning at the ninth of november till the ninth of february ; the other from the ninth of may till the ninth of august . the rest of the year was counted time of vacation , for sowing in the spring and reaping in the harvest . chap. ii. of law-days amongst the romans using choice days . i will therefore seek the original of our terms only from the romans , as all other nations that have been subject to their civil and ecclesiastical monarchy do , and must . the ancient romans , whilst they were yet heathens , did not , as we at this day , use certain continued portions of the year for a legal decision of controversies , but out of a superstitious conceit that some days were ominous , and more unlucky than others ( according to that of the aegyptians , ) they made one day to be fastus or term-day , and another ( as an aegyptian day ) to be vacation or nefastus : seldom two fasti , or law-days together , yea , they sometimes divided one and the same day in this manner , qui modo fastus erat , mane nefastus erat , the afternoon was term , the morning holy-day . nor were all their fasti applyed to judicature , but some of them to other meetings and consultations of the common-wealth ; so that being divided into three sorts , which they called fastos proprie , fastos endotercisos , & fastos comitiales , containing together . days , through all the months of the year , there remained not properly to the praetor , as judicial or triverbial days , above . whereas , we have in our terms above . days in court , besides the sundays and exempted festivals falling in the terms ; which are twenty or there about . yet sir * thomas smith counts it marvellous , that three tribunals in one city in less than the third part of the year , should rectifie the wrongs of so large and populous a nation as this of england . but let us return where we left off . chap. iii. of law-days among the first christians , using all times alike . to beat down the roman superstition touching observation of days , against which st. augustine and others wrote vehemently ; the christians at first used all days alike for hearing of causes , not sparing ( as it seemeth ) the sunday it self , thereby falling into another extremity . yet had they some precedent for it from moses and the jews . for philo judaeus in the life of moses reporteth , that the cause of him that gather'd sticks on the sabbath-day , was by a solemn council of the princes , priests , and the whole multitude , examined and consulted of on the sabbath-day . and the talmudists , who were best acquainted with the jewish customs , as also galatinus the hebrew do report , that their judges in the council called sanhedrim , sate on the week-day from morning to night , in the gates of the city ; and on the sabbath-day and solemn festivals , in the walls . so the whole year then seemed a continual term , no day exempt . and they that seek the original of our modern laws among them , do but spend their time in vain ; unless for some things impos'd on them by the roman emperours , when they became subjects . how this stood with the levitical law , or rather the moral , i leave to others . chap. iv. how sunday came to be exempted . but for reformation of the abuse among christians , in perverting the lord's day to the hearing of clamorous litigants , it was ordained in the year of our redemption . by the fathers assembled in concilio taraconensi , cap. . after that , in concilio spalensi , cap. . and by adrian bishop of rome in the decretal caus . . quaest . . that , nullus episcopus vel infra positus die dominico causas judicare [ al. ventilare ] praesumat . no bishop or inferiour person presume to judge or try causes on the lord's day . for it appeareth by epiphanius , that in his time ( as also many hundred years after ) bishops and clergy-men did hear and determine causes , lest christians , against the rule of the apostle , should go to law under heathens and infidels . and it is said in the st . epistle of clement ( if it were truly his ) that s. peter himself did so appoint it . concil . tom. . p. . this canon of the church for exempting sunday , was by theodosius fortified with an imperial constitution , whilst we britains were yet under the roman government , solis die , quem dominicum recte dixere majores , omnium omnino litium & negotiorum quiescat intentio . thus was sunday redeemed from being a part of the term ; but all other days by express words of the canon were left to be dies juridici , whether they were mean or great festivals . for it thus followeth in the same place of the decretals ; caeteris vero diebus , convenientibus personis , illa quae justa sunt , habent licentiam judicandi , excepto criminali , ( or as another edition reads it ) exceptis criminalibus negotiis . the whole canon is verbatim also decreed in the capitulars of the emperours carolus & ludovicus . chap. v. how other festival and vacation days were exempted . now let us see how other festivals and parts of the year were taken from the courts of justice . the first canon of note that i meet with to this purpose , is that in concilio triburiensi ca. . in or about the year . nullus comes , nullusque omnino secularis diebus dominicis vel sanctorum in festis seu quadragesimae , aut jejuniorum , placitum habere , sed nec populum illo praesumat cohercere . after this , the council of meldis cap. . took easter-week , commonly called the octaves , from law business ; pascae hebdomade feriandum , forensia negotia prohibentur . by this example came the octaves of pentecost , st. michael , the epiphany , &c. to be exempted , and principal feasts to be honoured with octaves . the next memorable council to that of tribury was the council of erpford in germany in the year . which tho' it were then but provincial , yet being after taken by gratian into the body of the canon law , it became general , and was imposed upon the whole church . i will recite it at large , as it standeth in binius , for i take it to be one of the foundation-stones to our terms . placita secularia dominicis vel aliis festis diebus , seu etiam in quibus legitima jejunia celebrantur secundum canonicam institutionem , minime fieri volumus . insuper quoque gloriosissimus rex [ francorum henricus ] ad augmentum christianae religionis , ( or as gratian hath it ) [ sancta synodus ] decrevit ut nulla judiciaria potestas licentiam habeat christianos sua authoritate ad placitum bannire septem diebus ante natalem domini , & à quinquagesima usque ad octavas paschae , & septem diebus ante nativitatem sancti johannis baptistae , quatenus adeundi ecclesiam orationibusque vacandi liberius habeatur facultas . but the council of st. medard extant first in burchard , and then in gratian enlargeth these vacations in this manner , decrevit sancta synodus , ut a quadragesima usque ad octavam paschae , & ab adventu domini usque ad octavam epiphaniae , nec-non in jejuniis quatuor temporum , & in litaniis majoribus , & in diebus dominicis , & in diebus rogationum ( nisi de concordia & pacificatione ) nullus supra sacra evangelia jurare praesumat . the word [ jurare ] here implyeth that they should not try law-causes , or hold plea on these days , as by the same phrase in other laws shall by and by appear : which the gloss also upon this canon maketh manifest , saying , in his etiam diebus causae exerceri non debent , citing the other canon here next before recited ; but adding withal , that the court and custume of rome it self doth not keep vacation from septuagesima , nor , as it seemeth , in some other of the days . and this precedent we follow , when septuagesima and sexagesima fall in the compass of hilary-term . chap. vi. that our terms took their original from the canon-law . thus we leave the canon law , and come home to our own country , which out of these , and such other forreign constitutions ( for many more there are ) have framed our terms , not by choosing any set portion of the year for them ( as polydore virgil , and our chroniclers ignorantly suggest ) but by taking up such times for that purpose , as the church and common necessity ( for collecting the fruits of the earth ) left undisposed of , as in that which followeth plainly shall appear . chap. vii . the constitution of our saxon kings in this matter . inas one of our ancient saxon kings , made a very strict law against working on sunday . and alured instituted many festivals ; but the first that prohibited juridical proceedings upon such days , was edward the elder and guthrun the dane , who in the league between them , made about ten years before the council of erpford , ( that it may appear we took not all our light from thence ) did thus ordain ; ordel & aþas syndon tocƿedon freols dagum . & rihtfaesten dagum ; &c. we forbid that ordel and oaths ( so they called law-tryals at that time ) be used upon festival and lawful fasting days , &c. how far this law extended , appeareth not particularly ; no doubt to all festival and fasting-days then imposed by the roman church , and such other provincial , as by our kings and clergy were here instituted . those which by alured were appointed to be festivals , are now by this law made also days of vacation from judicial tryals ; yet seem they , for the most part , to be but semi-festivals , as appointed only to free-men not to bond-men ; for so his law declareth , viz. the twelve days of christmass , the day wherein christ overcame the devil , the anniversary of st. gregory , the seven days afore easter , and the seven days after , the day of st. peter and st. paul , and the whole week before st. mary in harvest , and the feast-day of all-saints . but the four wednesdays in the four ember weeks are remitted to bond-men to bestow their work in them as they thought good . to come to that which is more perspicuous ; i find about sixty years after , a canon in our synod of eanham , under king ethelred in these words . first , touching sunday , dominicae solempnia diei cum summo honore magnopere celebranda sunt , nec quicquam in eadem operis agatur servilis . negotia quoque secularia quaestionesque publicae in eadem deponantur die . then commanding the feast-days of the b. virgin , and of all the apostles , the fast of the ember days , and of the friday in every week to be duely kept ; it proceedeth thus , judicium quippe quod anglicè ordeal dicitur , & juramenta vulgaria , festivis temporibus & legitimis jejuniis ; sed & ab adventu domini usque post octabas epiphaniae , & à septuagesima usque . dies post pascha minime exerceantur : sed sit his temporibus summa pax & concordia inter christianos , sicut fieri oportet . it is like there were some former constitutions of our church to this purpose ; but either mine eye hath not light upon them , or my memory hath deceived me of them . chap. viii . the constitution of canutus , more particular . canutus succeeding shortly by his danish sword in our english kingdom , not only retained but revived this former constitution , adding , after the manner of his zeal , two new festival and vacation days . and ƿe forheodað ordal & aðas freols dagum . & ymbren dagum . & rite faesten dagum ; & fram adventum domini oþ se eahtoþa dag agan sy ofer tƿelfta daeg ▪ &c. we forbid ordal and oaths on feast-days and ember-days , and in lent , and set fasting days , and from the advent of our lord till the eighth day after the twelfth be past . and from septuagesima till fifteen nights after easter . and the sages have ordained that st. edward's day shall be festival over all england on the fifteenth of the kalends of april , and st. dunstan's on the fourteenth of the kalends of june , and that all christians ( as right it is ) should keep them hallowed and in peace . canutus , following the synod of eanham , setteth down in the paragraph next before this recited , which shall be festival and which fasting-days , appointing both to be days of vacation . among the fasting-days he nameth the saints eves and the fridays ; but excepteth the fridays when they happen to be festival-days , and those which come between easter and pentecost ; as also those between midwinter ( so they called the nativity of our lord ) and octabis epiphaniae . so that , at this time , some fridays were law-days and some were not . those in easter term , with the eve of philip and jacob , were ; and the rest were not . the reason of this partiality ( as i take it ) was ; they fasted not at christmass for joy of christ's nativity , nor between easter and whitsuntide , for that christ continued upon the earth , from his resurrection till his ascension ; and * the children of the wedding may not fast so long as the bridegroom is with them : nor till whitsuntide , for joy of the coming of the holy ghost . chap. ix . the constitution of edward the confessor most material . saint edward the confessor drew this constitution of canutus nearer to the course of our time , as a law , in these words : ab adventu domini usque ad octabas epiphaniae pax dei & sanctae ecclesiae per omne regnum ; similiter à septuagesima usque ad octabas paschae ; item ab ascensione domini usque ad octabas pentecostes ; item omnibus diebus quatuor temporum ; item omnibus sabbatis ab hora nona , & tota die sequenti , usque ad diem lunae ; item vigiliis sanctae mariae , sancti michaelis , sancti johannis baptistae , apostolorum omnium & sanctorum quorum solennitates a sacerdotibus dominicis ●nnunciantur diebus ; & omnium sanctorum in kalendis novembris , semper ab hora nona vigiliarum , & subsequenti solennitate : item in parochiis in quibus dedicationis dies observatur ; item parochiis ecclesiarum ubi propria festivitas sancti celebratur , &c. the rubrick of this law is , de temporibus & diebus pacis regis , intimating term-time ; and here in the text the vacations are called dies pacis dei & sanctae ecclesiae , as i said in he beginning . but pax dei , pax ecclesiae , & pax regis , in other laws of edward the confessor , and elsewhere , have other significations also more particular . hora nona is here ( as in all authors of that time ) intended for three of the clock in the after-noon , being the ninth hour of the artificial day ; wherein the saxons , as other parts of europe , and our ancestours of much later time , followed the judaical computation : perhaps till the invention and use of clocks gave a just occasion to alter it , for that they could not daily vary for the unequal hours . chap. x. the constitution of william the conquerour . this constitution of edward the confessour was amongst his other laws confirm'd by william the coquerour ; as not only hoveden and those ancient authors testifie , but by the decree of the conquerour himself , in these words ; hoc quoque praecipio ut omnes habeant & teneant leges edwardi in omnibus rebus , adauctis his quae constituimus ad utilitatem anglorum . and in those auctions nothing is added , alter'd , or spoken , concerning any part of that constitution . neither is it like , that the conquerour did much innovate the course of our terms or law-days , seeing he held them in his own dutchy of normandy , not far differing from the same manner , having received the customs of that his country from this of ours , by the hand of edward the confessour ; as in the beginning of their old custumary themselves do acknowledge . the words touching their law-days or tryals be these , under the title de temporibus quibus leges non debent fieri : notandum autem est quod quaedam sunt tempora in quibus leges non debent fieri , nec simplices , nec apertae , viz. omnia tempora in quibus matrimonia non possunt celebrari . ecclesia autem legibus apparentibus omnes dies festivos prohibet , & defendit , viz. ab hora nona die jovis , usque ad ortum solis die lunae sequenti , & omnes dies solennes novem lectionum & solennium jejuniorum , & dedicationis ecclesiae in qua duellum est deducendum . this law doth generally inhibit all judicial proceedings , during the times wherein marriage is forbidden , and particularly all tryals by battail , ( which the french and our glanvil call leges apparentes , aliàs apparibiles , vulgarly loix apparisans ) during the other times therein mention'd . and it is to be noted , that the emperour frederick the second in his neapolitan constitutions includeth the tryals by ordeal under leges paribiles . but touching the time wherein marriage is forbidden ; it agreed at that day with the vacations from law-business , prescrib'd by edward the confessour : the church not thinking it reason , that men abstaining from litigation , should give themselves to lust , and to feasting and dancing , ( things incident to marriage : ) in which respect , it also required that man and wife ( as near as they could ) should at these times forbear the pleasure of their bed , and give themselves to devotion and piety . for tho' covetous persons have since abused that godly institution to their profit , yet the fathers that were authors of it in ilerdensi concilio , about . years after christ , aim'd at nothing , but meerly sanctity . the times of marriage , prohibited according to the constitution of the church , were these ; a prima dominica adventus , usque ad octavas epiphaniae exclusive : & à dominica septuagesimae usque ad primam dominicam post pascha inclusive : & à prima die rogationum usque ad septimum diem festi pentecostes inclusive . the law-vacation , according to the prescription of edward the confessour , is , ab ascensione domini usque ad octabis pentecostes . but here , the wedding-vacation is three days before it , viz. à prima die rogationum ; which is according to the constitution de feriis , ca. capellanus . so that the term-times , and vacations , of the english and normans , were anciently all one ; and our ecclesiastical courts hold it so to this day . of the dies novem lectionum before mention'd , we shall speak anon . chap. xi . what done by william rufus , henry i. king stephen , and henry ii. as for william rufus , we read that he pulled many lands from the church , but not that he abridged the vacation times assigned to it . henry i. upon view of former constitutions , composed this law under the title , de observatione temporis leges faciendi , viz. ab adventu domini usque ad octabis epiphaniae , & à septuagesima usque ad . dies post pascham , & festis diebus , & quatuor temporum , & diebus quadragesimalibus , & aliis legitimis jejuniis , in diebus veneris , & vigiliis sanctorum apostolorum non est tempus leges faciendi , idem vel jusjurandum ( nisi primo fidelitate domini vel concordia ) vel bellum , vel ferri , vel aquae , vel leges exactionis tractari , sed sit in omnibus vera pax , beata charitas , ad honorem omnipotentis dei , &c. the copies of these laws is much corrupted , and it appeareth by florence wigorn's continuer , that the londoners refused them , and put maud the empress to an ignominious flight when she pressed the observation of them . but in this particular branch there is nothing not agreeable to some former constitution . the word bellum here signifieth combats , which among our saxons are not spoken of , and by those of ferri vel aquae , are meant ordeal . king stephen by his charter recited at malmesbury , confirmed and established by a generality , bonas leges , & antiquas , & justas consuetudines . henry the ii. expresly ratified the laws of edward the confessour and william the conquerour , as hoveden telleth us , saying , that he did it by the advice of ranulph glanvil then newly made chief justice of england ; which seemeth to be true , for that glanvil doth accordingly make some of his writs returnable in octabis , or clauso paschae , where the laws of edward the confessour appoint the end of lent vacation : and gervasius tilburiensis also mentioneth the same return . yet the mss. laws of henry ii. which remain in the red-book of the exchequer , following the synod of eanham , extendeth lent vacation , à septuagesima usque . dies post pascha , and layeth out the whole frame of the year in this manner , under the rubrick de observatione temporis leges faciendi , viz. ab adventu domini usque ad octabis epiphaniae , & a septuagesima usque ad quindecim dies post pascha , & festis diebus , & quatuor temporum , & diebus quadragesimalibus , & aliis legitimis jejuniis in diebus veneris & vigiliis singulorum apostolorum non est tempus leges faciendi , idem vel jusjurandum nisi primo fidelitate domini , vel concordia , vel bellum , vel ferri , vel aquae , vel legis examinationis tractari . sed sit in omnibus vera pax ( & ) beata charitas ad honorem omnipotentis , cujus sapientia conditi sumus , nativitate provecti , morte redempti , consolatione securi ; & qui debitor est , persolvat ante vel induciet , donec dies isti transeant , gaudiis & honestis voluptatibus instituti . et si quis maleficium inter manus habens , alicubi retinetur ; ibi purgetur vel sordidetur si solum inculpatio , plegiis si opus est datis , ubi justum fuerit terminanda revertatur . chap. xii . the terms laid out according to these ancient laws . to lay out now the bounds of the terms according to these canons and constitutions , especially that ancient law of edward the confessour ; it thus appeareth , viz. hilary-term began then certainly at octabis epiphaniae , that is the thirteenth day of january , seven days before the first return it now hath , and nine days before our term beginneth ; and ended at the saturday next before septuagesima , which being moveable made this term longer in some years than in others . florentius wigorniensis , and walsingham in his hypodigma neustriae saith , — anno . in octabis epiphaniae apud sarisburiam rex gulielmus [ rufus ] tenuit consilium in quo jussit gulielmi de anco in du●llo victi oculos eruere , & testiculos abscindere , & dapiferum illius gulielmum de alderi , filium amitae illius suspendi , &c. proceeding also judicially against others . tho' walsingham calleth this consilium with an s , a counsel ; and wigorniensis concilium with a c , an assembly , ( the word term perhaps not being in use under william rufus ; ) yet it seemeth to be no other , than an assembly of the barons , in the king's house or court of state , ( which was then the ordinary place of justice for crimes of this nature . ) for the barons of the land were at that time judges of all causes , which we call pleas of the crown , and of all other belonging to the court of the king : the proceeding also against these offenders seemeth meerly legal , and not parliamentary or ex arbitrio . for the tryal was according to law , by battel ; and the judgement ( after the manner of the time ) by putting out the eyes and mutilation of the privy members . as for putting men to death , i confess that it was not at this time ordinary : for william the conquerour had made a law : interdico nequis occidatur , vel suspendatur pro aliqua culpa ; sed eruantur oculi & abscindantur testiculi . but as himself observ'd it not ; so his son made not nice in breaking of it . and i think the barons of that time did in many things , ( especially crimes of treason ) ex arbitrio judicare . besides this , if it had been other than an ordinary course of justice , they would not have call'd it consilium or concilium simply ; but magnum concilium or commune concilium regni , as the phrase then was for parliaments . lastly , tho' it had been a parliament , yet they could not , or at least they would not break the constitutions of the church , by medling with tryals of crime and blood , in diebus pacis ecclesiae : and therefore we must conceive it to be done in term-time , & diebus pacis regis , as the canons alledg'd , and assign'd it . i meet also with a precedent to this purpose in radevicus under the year . whereby it appears , that they began their term or law-day likwise beyond the seas at octabis epiphaniae . curia ( says he ) quae in octavis epiphaniae papiae fuerat indicta , usque in sextam feriam proxime ante caput jejunii ( quia in destructione cremae dominus imperator detinebatur ) est dilata . the norman custumary sheweth also expresly , that this term began at octabis epiphaniae : in saying , that their law-days began and went out with the times of celebrating marriage : which in this part of the year ( as we shewed before ) came in at octab. epiphaniae , and went out at septuagesima , as it still doth . and the court of the arches doth still hold the same beginning . the exchequer also being brought out of normandy , seemeth to retain at this day the steps of the norman custume . for in that it openeth eight days before the beginning of the term , it openeth upon the matter at octabis epiphaniae : by which it appeareth that it was then no vacation , and that the term was begun at octabis epiphaniae ; whereby it is the likelyer also that it ended at septuagesima , lest beginning it , as we now do , it might fall out some years to have no hilary-term at all , as shall anon appear . and this our ancient use of ending the term at septuagesima is some inducement to think , the council of erpford is depraved , and that the word there quinquagesima should be septuagesima , as the gloss there reporteth it to be in some other place : and as well gratian mistakes this , as he hath done the council it self , attributing it to ephesus a city of ionia , instead of erpford a town in germany ; where burchard before him , and binius since , do now place it . it comes here to my mind , what i have heard an old chequer-man many years ago report , that this term and trinity-term were in ancient time either no terms at all , or but as reliques of michaelmass and easter-terms , rather than just terms of themselves : some courses of the chequer yet encline to it . and we were both of the mind , that want of business ( which no doubt in those days was very little ) by reason suits were then for the most part determined in inferiour courts , might be the cause thereof . but i since observe another cause , viz. that septuagesima or church-time one while trode so near upon the heels of octabis epiphaniae ( i mean came so soon after it , ) as it left not a whole week for hilary-term ; and again , another while , trinity sunday fell out so late in the year , that the common necessity of hay-seed and harvest , made that term very little and unfrequented . for insomuch as easter ( which is the clavis , as well to shut up hilary-term , as to open trinity-term ) may , according to the general council of nice , holden in the year . fall upon any day between the st . of march exclusively , which then was the aequinoctium , and the . of april inclusively , ( as the farthest day that the sunday following the vernal full-moon can happen upon ; ) septuagesima may sometimes be upon the eighteenth of january , and then could they in ancient time not have above four days term , and we at this day no term at all , because we begin it not till the d. of january , which may be six days after septuagesima , and within the time of church-vacation . but what hilary-term hath now lost at the beginning of it , it hath gained at the latter ending . of trinity-term i shall speak more by and by . chap. xiii . easter-term . easter-term , which now beginneth two days after quindena paschae , began then as the law of edward the confessour appointed it , at octabis . this is verified by glanvil , who maketh one of his writs returnable thus ; rex &c. summone per bonos summonitores quatuor legales milites de vicineto de stock , quod sint ad clausum paschae coram me vel justiciis meis apud westmonasterium ad eligendum supra sacramentum suum duodecim legales milites . but , as it began then nine days sooner than it now doth , so it ended six or seven days sooner , viz. before the vigil of ascension ; which i take to be the meaning of the law of edward the confessour , appointing the time from the ascension ( inclusivè ) to the octaves of pentecost , with ascension-eve , to be dies pacis ecclesiae , and vacation . chap. xiv . trinity-term . trinity-term therefore in those days began as it now doth ( in respect of the returns ) at octab. pentecostes , which being always the day after trinity sunday , is now by the stat. of . of hen. viii . appointed to be called crastino trinitatis . but it seemeth that the stat. of . of hen. iii. changed the beginning of this term from crastino trinitatis , to octabis trinitatis , and that therefore the stat. of hen. viii . did no more in this point than reduce it to the former original . as touching the end of this term , it seemeth also that the said stat. of . hen. iii. assigned the same to be within two or three days after quindena sancti johannis , ( which is about the twelfth of july ) for that statute nameth no return after . but , for ought that hindreth by the canons , it is tanquam terminus sine termino ; for , there was no set canon or ecclesiastical law ( that i can find ) to abridge the continuance thereof till michaelmass , unless the seven days next before st. john baptist , were ( according to the canon of erpford ) used as days of intermission , when they fell after the octaves of pentecost as commonly they do ; tho' this year . four of them fell within them : and except the ember-days meet after holy-rood ; for jejunia quatuor temporum , as well by the laws of canutus , and edward the confessour , as by all other almost before recited , are either expresly or implicitely exempted from the days of law. but when trinity sunday fell near the feast of st. john baptist , then was the first part of this term so thrust up between those days of the church , that it was very short ; and the latter part being always fixt , did so hinder hay-seed and harvest following , that either the course of it must be shortned , or it must still usurp upon the time , allotted by nature to collect the fruits of the earth . for as religion closed the courts of law in other parts of the year , so now doth publick necessity stop the progress of them ; following the constitution of theodosius , thus decreeing ; — omnes dies jubemus esse juridicos . illos tamen remanere feriarum dies fas est geminis mensibus ; ad requiem laboris indulgentior annus excepit : aestivis quoque fervoribus mitigandis , & autumpnis fructibus decerpendis . this is also confirmed in the canon conquestus ; and in gratian with the glosses upon them , to which i leave you . but it is of old thus expressed by statius , as if it were ex jure gentium : certe jam latiae non miscent jurgia leges , et pacem piger annus habet , messesque reversae dimisere forum : nec jam tibi turba r●orum vestibulo , querulique rogant exire clientes . the latian laws do no man now molest , but grant this weary season peace and rest ; the courts are stopt when harvest comes about , the plaintiff or defendant stirs not out . so the longobards ( our brethren as touching saxon original ) appointed for their vintage a particular vacation of thirty days , which paulus diaconus doth thus mention : proficiscentes autem eo ad villam , ut juxta ritum imperialem triginta diebus ad vindemiam jocundaretur . so also the western goths ( a branch of the northern nations ) ordain'd pro messivis feriis , à . kal. augusti , usque ad . kal. septembris , &c. observandas . whereby it appeareth that this time was not onely a time of vacation in those ancient days , but also of feasting and merriment , for receiving the fruits of the earth ; as at nabal's and absalom's sheep-shearing , and in divers parts of england at this day . so the normans , whose terms were once not so much differing from ours , might not hold their assizes or times of law , but after easter and harvest ; ( that is , after the times of holy church and publick necessity ) as appeareth by their custumary . and forasmuch as the swainmote-courts are by the ancient forest-laws appointed to be kept fifteen days before michaelmass ; it seemeth to be intended that harvest was then done , or that in forests little or no corn was then used to be sown . but it is to be remembred , that this vacation by reason of harvest , hay-seed , vintage , &c. was not of so much solemnity as those in the other parts of the year , and therefore called of the civilians , dies feriati minus solennes ; because they were not dedicated divino cultui , but humanae necessitati . therefore tho' law business was prohibited on these days , to give ease and freedom unto suiters whilst they attended on the store-house of the common-wealth ; yet was it not otherwise than that by consent of parties they might proceed in this vacation ; whereof see the decreta gregorii . to this effect , in a ms. of the lives of the abbots of st. albans , i meet with this precedent : that . non. aug. anno dom. . indictione . comparentibus judicialiter coram nobis offic. cur eborum . commissario generali in majore ecclesia eborum loco 〈…〉 pro tribunali sedentibus fratre johanne de redburne , 〈…〉 s. albani , ordinis s. benedicti lincolniensis dioeces . procuratore , r●●g . virorum dominorum abbatis & conventus ejusdem monasterii verorum patronorum ecclesiae de appleton in rydale eborum . dioc. procuratorio pro eisdem ex una , ac domino waltero flemengs rectore ejusdem ecclesiae personaliter ex altera : idem dominus walterus rector , tempore messium non obstante , ipsoque tunc in nobis ut in judice suo ad infra scripta judicialiter consentiente , fatebatur se teneri dictis dominis abbati & conventui & eorum monasterio in . libris argenti , nomine pensionis sex marcarum annuarum eisdem religiosis ab eo & dicta sua ecclesia de tempore quo rector ejusdem ecclesiae extitit , debit . & per eundem per idem tempus subtractis . chap. xv. of michaelmass-term according to the ancient constitutions . michaelmass-term ( as the canons and laws aforesaid leave it ) was more uncertain for the beginning than for the end . it appeareth by a fine taken at norwich , . hen. iii. that the term was then holden there , and began within the octaves of saint michael ; for the cyrograph of it is ; haec est finalis concordia facta in curia domini regis apud norwicum , die martis proximo post festum sancti michaelis , anno regni regis henrici filii regis johannis . coram tho. de mulet , rob. de lexint , olivero , &c. i observe that the tuesday next after st. michael can ( at the farthest ) be but the seventh day after it , and yet it then must be a day within the octaves ; whereas the term now beginneth not till the third day after the octaves . but gervasius tilburiensis , who lived in hen. ii's time , hath a writ in these words : — n. rex anglorum , [ illi vel illi ] vicecomiti jalutem . vide , sicut teipsum & omnia tua diligis , quod sis ad scaccarium [ ibi vel ibi in crastino sancti michaelis , vel in crastino clausi paschae ] & habeas ibi tecum quicquid debes de veteri firma & nova , & nominatim haec debita subscript . viz. &c. by which it appeareth that the term in the exchequer , as touching sheriffs and accomptants , and consequently in the other parts , began then as now it doth , saying that the statute de scaccario , . hen. iii. hath since appointed , that sheriffs and accomptants shall come to the exchequer the monday after the feast of st. michael , and the monday after the vtas of easter * . which time , not being ferial or church-days , is freely allow'd to term business , if the octaves of st. michael had no priviledge ; of which hereafter . it is to be noted that the term in the exchequer hath one return at the beginning of every term before the first return in other courts , excepting trinity-term ; viz. crastino s. michaelis , in michaelmass-term ; octabis s. hilarii , in hilary-term ; and octabis or clausum paschae , in easter-term . and it seemeth , that crastino trinitatis was so likewise in trinity-term before the stat. . hen. viii . and these returns or the space of eight days , in which the exchequer is open before the full term , ( which now we commonly call the beginning of the term ) are counted to be term-time , as appeareth by the said statute , where it is thus enacted ; that trinity-term shall begin the monday next after trinity sunday , for keeping of the essoignes , profers , returns , and other ceremonies heretofore used , &c. and that the full term of the said trinity-term , shall yearly for ever begin the friday * .... the end is certainly prefixed by the canons and laws aforesaid , that it may not extend into advent . and it holdeth still at that mark ; saving that because advent sunday is moveable , according to the dominical letter , and may fall upon any day between the twenty sixth of november and the fourth of december , therefore the twenty eighth of november ( as a middle period by reason of the feast and eve of st. andrew ) hath been appointed to it . howbeit when advent sunday falleth on the twenty seventh of november , as sometimes it doth , then is the last day of the term ( contrary to the canons and former constitutions ) held in advent , and consequently void , if custom help it not , or , for more security the statute of . edw. i. ca. . where the bishops , at the king's request , admit assizes and inquests to be taken in advent , as it after shall more largely appear . chap. xvi . the later constitutions of the terms . to leave obscurity and come nearer the light , it seemeth by the statutes of . hen. iii. called dies communes in banco , that the terms did then either begin and end as they do now , or that those statutes did lay them out , and that the statute of . edw. iii. cap. . confirmed that use : for the returns there mentioned are neither other , more or fewer than at this day . chap. xvii . how trinity-term was alter'd and shortned . trinity-term is alter'd and shortned by the statute of . hen. viii . chap. . which hath ordained it quoad sessionem , to begin for ever the friday after corpus christi day , and to continue nineteen days ; whereas in elder times it began two or three days sooner . so that corpus christi day being a moveable feast , this term cannot hold any certain station in the year , and therefore this year . it began on st. john baptist's day , and the last year it ended on his eve. hereupon , tho' by all the canons of the church and former laws , the feast of st. john baptist was a solemn day , and exempt from legal proceedings in courts of justice ; yet is it now no vacation day , when corpus christi falleth ( as it did this year . ) the very day before it : for that the statute hath appointed the term to begin the friday next after corpus christi day , which was the day next this year before st. john baptist , and so the term must of necessity begin on saint john baptist's day . this deceived all the ptognosticators , who counting st. john baptist for a grand day , and no day in court , appointed the term in their almanacks to begin the day after , and consequently to hold a day longer ; deceiving many by that their errour . but , the aforesaid statute of . hen. viii . changed the whole frame of this term : for it made it begin sooner by a return , viz. crastino sanctae trinitatis , and thereby brought octabis trinitatis , which before was the first return , to be the second , and quindena trinitatis which before was the second , now to be the third ; and instead of the three other returns of crastino octabis , and quindena sancti johannis , it appointed that which before was no return , but now the fourth and last , called tres trinitatis . the altering and abbreviation of this term is declared by the preamble of the statute , to have risen out of two causes , one for health , in dismissing the concourse of people in that contagious time of the year ; the other for wealth , that the subject might attend his harvest , and gathering in the fruits of the earth . but there seemeth to be a third also not mention'd in the statute , and that is , the uncertain station , length and returns of the first part of this term , which , like an excentrick , was one year near to st. john baptist , another year far removed from it ; and thereby making the term not only various , but one year longer , and another shorter , according as trinity sunday ( being the clavis to it ) fell nearer or farther off from st. john baptist . for if it fell betimes in the year , then was this term very long , and the two first returns of octabis and quindena trinitatis might be past and gone a fortnight and more , before crastino sancti johannis could come in : and if it fell late , ( as this year . it did ) then would crastino sancti johannis be come and past , before octabis trinitatis were gone out . so that many times one or two of the first returns of this term ( for ought that i can see ) must in those days needs be lost . * chap. xviii . how michaelmass-term was abbreviated by act of parliament , . car. i. cap. . the last place our statute-book affords upon this subject of the limits and extent of the terms , is the stat. . car. i. chap. . intituled , an act concerning the limitation and abbreviation of michaelmass-term . for whereas by former statutes it doth appear , that michaelmass-term did begin in octabis sanctae michaelis , that statute appoints , that the first return in this term shall ever hereafter be à die sancti michaelis in tres septimanas , so cutting off no less than two returns from the ancient beginning of this term , viz. octabis sancti michaelis , & à die sancti michaelis in quindecim dies , and consequently making the beginning of it fall a fortnight later than before . wherefore the first day in this term will always be the twenty third day of october , unless it happen to be sunday , for then it must be defer'd till the day following ; upon which account we find it accordingly placed on the twenty fourth for the year . this is all the alteration that statute mentions , and therefore for the end of michaelmass-term , i refer the reader to what our author has said already in the th . chapter . it may not be amiss in pursuit of our author's method to set down the motives of making this abbreviation as we find them reckon'd up in the preamble to that statute . there we find , that the old beginning of michaelmass-term , was generally found to be very inconvenient to his majesty's subjects both nobles and others . first , for the keeping of quarter-sessions next after the feast of st. michael the archangel ; secondly , for keeping their leets , law-days and court-barons : thirdly , for the sowing of land with winter-corn , the same being the chief time of all the year for doing it ; fourthly , for the disposing , and setting in order of all their winter husbandry and business ; fifthly , for the receiving aud paying of rents ; sixthly , because in many parts of this kingdom , especially the most northern , harvest is seldom or never inned till three weeks after the said feast . all which affairs they could before by no means attend , in regard of the necessity of their coming to the said term , so speedily after the feast of st. michael the archangel , to appear upon juries , and to follow their causes and suits in the law. sect . v. other considerations concerning term-time . having thus laid out the frame of the terms , both according to the ancient and modern constitutions , it remaineth that we speak something of other points properly incident to this part of our division touching term-time , viz. . why the courts sit not in the afternoons . . why not upon some whole days , as on grand-days , double feasts , and other exempted days , and the reason of them . . why some law business may be done on days exempted . . why the end of michaelmass-term is sometimes holden in advent , and of hilary-term in septuagesima , sexagesima , and quinquagesima . . why the assizes are holden in lent , and at times generally prohibited by the church . . of returns . . of the quarta dies post . . why i have cited so much canon , civil , feodal , and foreign laws in this discourse , with an excursion into the original of our laws . chap. i. why the high courts sit not in the afternoons . it is now to be considered , why the high courts of justice sit not in the afternoons . for it is said in exodus , that moses judged the israelites from morning to evening . and the romans used the afternoon as well as the forenoon , yea , many times the afternoon and not the forenoon , as upon the days called endotercismi or intercisi , whereof the forenoon was nefastus or vacation , and the afternoon fastus or law-day , as we shewed in the beginning . and the civilians following that law do so continue them amongst us in their term at this day . but our ancestours and other the northern nations being more prone to distemper and excess of diet ( as the canon law noteth of them ) used the forenoon only , lest repletion should bring upon them drowsiness and oppression of spirit ; according to that of st. jerome , pinguis venter non gignit mentem tenuem . to confess the truth , our saxons ( as appeareth by huntington ) were immeasurably given to drunkenness . and it is said in ecclesiastes , vae terrae cujus principes mane comedunt . therefore to avoid the inconvenience depending hereon , the council of nice ordained , that judices non nisi jejuni leges & judicia decernant . and in the council of salegunstad it was after decreed , vt lectio nicaeni concilii recitetur , which being done in the words aforesaid , the same was likewise there confirm'd . according to this , in the laws of carolus magnus the emperour it is ordained , ( logobard lib. . ) vt judices jejuni causas audiant & discernant : and again in the capitulars caroli & lodovici , ne placitum comes habeat nisi jejunus . where the word comes , according to the phrase of that time , is used for judex , as elsewhere we have at large declared . to the same effect is the capitular ad legem salicam : and out of these and such other constitutions ariseth the rule of the canon law , that quae à prandio fiunt consultationes , inter decreta non referuntur . yet i find that causes might be heard and judged in the afternoon ; for in capitulars lib. . can. . and again lib. . can. . it is said , causae viduarum , pupillorum & pauperum audiantur & definiantur ante meridiem , regis vero & potentium post meridiem . which tho' it seem contradictory to the constitutions aforesaid , yet i conceive them to be thus reconcilable : that the judges ( sitting then but seldom ) continued their courts both forenoon and afternoon , from morning till evening without dinner or intermission , as at this day they may , and often do , upon great causes : tho' being risen and dining , they might not meet again ; yet might they not sit by night , or use candle light , quod de nocte non est honestum judicium exercere . and from these ancient rites of the church and empire is our law derived , which prohibiteth our jurours , being judices de facto , to have meat , drink , fire or candle-light , till they be agreed of their verdict . it may be here demanded how it cometh to pass , that our judges after dinner do take assizes and nisi prius in the guild-hall of london , and in their circuits ? i have yet no other answer but that ancient institutions are discontinued often by some custom grating in upon them , and changed often by some later constitution , of which kind the instances aforesaid seem to be . for assizes were ordained many ages after by henry ii. as appeareth by the charter of beverly , glanvil and radulphus niger ; and nisi prius by edward i. in the statutes of westminster . tho' i see not but in taking of them the ancient course might have been continued , if haste would suffer it . chap. ii. why they sit not at all some days . though there be many days in the terms , which by ancient constitutions before recited are exempted from law-business , as those of the apostles , &c. and that the statute of edw. vi. appointed many of them to be kept holy-days , as dedicated , not unto saints , but unto divine worship , which we also at this day retain as holy-days : yet do not the high courts forbear sitting in any of them , saving on the feast of the purification , the ascension , st. john baptist , all-saints , and the day after , ( tho' not a feast ) called all-souls . when the others lost their priviledge and came to be term-days , i cannot find ; it sufficeth that custome hath repealed them by confession of the canonists . yet it seemeth to me , there is matter for it in the constitutions of our church , under islepe arch-bishop of canterbury , in the time of edward iii. for tho' many ancient laws and the decretals of gregory ix . had ordained judicialem strepitum diebus conquiescere feriatis ; yet in a synod then holden , wherein all the holy-days are appointed and particularly recited , no restraint of judicature or forensis strepitus is imposed , but a cessation only ab universis servilibus operibus , etiam reipublicae utilibus . which tho' it be in the phrase that god himself useth touching many great feasts , viz. omne servile opus non facietis in iis , yet it is not in that wherein he instituteth the seventh day to be the sabbath , non facies omne opus in eo , without servile , thou shalt do no manner of work therein . now the act of judicature , and of hearing and determining controversies is not opus servile , but honoratum & plane regium , and so not within the prohibition of this our canon , which being the latter seemeth to qualifie all the former . yea the canonists and casuists themselves not only expound opus servile of corporal and mechanick labour , but admit twenty six several cases , where ( even in that very kind ) dispensation lieth against the canons , and by much more reason then , with this in question . it may be said that this canon consequently giveth liberty to hold plea and courts , upon other festivals in the vacations . i confess that so it seemeth ; but this canon hath no power to alter the bounds and course of the terms , which before were settled by the statutes of the land , so that in that point it wrought nothing . but here ariseth another question , how it chanceth that the courts sit in easter-term upon the rogation-days , it being expresly forbidden by the council of medard , and by the intention of divers other constitutions ? it seemeth that it never was so used in england , or at least not for many ages , especially since gregory ix . insomuch that among the days wherein he prohibiteth forensem strepitum , clamourous pleading , &c. he nameth them not . and tho' he did , yet the glossographers say , that a nation may by custom erect a feast that is not commanded by the canons of the church . et eodem modo posset ex consuetudine introduci , quod aliqua quae sunt de praecepto non essent de praecepto , sicut de tribus diebus rogationum , &c. to be short , i find no such priviledge for them in our courts , as that they should be exempt from suits ; tho' we admit them other church rites and ceremonies . we must now ( if we can ) shew why the courts , sitting upon so many ferial and holy-days , do forbear to sit upon some others , which before i mention'd ; the purification , ascension , st. john baptist , all-saints , &c. for in the synod under islepe before mention'd , no prerogative is given to them above the rest , that fall in the terms ; as namely , st. mark and st. philip and jacob , when they do fall in easter-term , st. peter in trinity-term , * st. luke and ss . simon and jude in michaelmass-term . it may be said , that , although the synod did only prohibit opera servilia to be done on festival-days , as the offence most in use at that time ; yet did it not give licence to do any act that was formerly prohibited by any law or canon . and therefore if by colour thereof , or any former use ( which is like enough ) the courts did sit on lesser festivals , yet they never did it on the greater , among which as majoris cautelae gratia , those opera servilia are there also prohibited to be done on easter-day , pentecost , and the sunday it self . let us then see which are the greater feasts , and by what merit they obtain the priviledge , that the courts of justice sit not on them . as for sunday , we shall not need to speak of it , being canonized by god himself . as for easter and whitsunday , they fall not in the terms : yet i find a parliament held , or at least begun on whitsunday . but touching feasts in general , it is to be understood , that the canonists , and such as write de divinis officiis , divide them into three sorts , viz. festa in totum duplicia , simpliciter duplicia , & semiduplicia . and they call them duplicia , or double feasts , for that all , or some parts of the service , on those days were begun voce duplici , that is , by two singing-men ; whereas on other days all was done by one . our cathedral churches do yet observe it : i mean not to stay upon it : look the rationale ; which feasts were of every of these kinds . the ordinary apostles were of the last , and therefore our courts made bold with them : but the purification , ascension , st. john baptist , with some others that fall not in the term , were of the first , and because of this and some other prerogatives were also called festa majora , festa principalia , & dies novem lectionum , ordinarily , double feasts , and grand days . mention is made of them in an ordinance . edw. iii. that writs were ordained to the bishops , to accurse all and every of the perturbers of the church , &c. every sunday and double feast , &c. but we must needs shew why they were called dies novem lectionum ; for so our old pica de sarum styleth them , and therein lyeth their greatest priviledge . after the arian heresie against the trinity , was by the fathers of that time most powerfully confuted and suppressed , the church in memory of that most blessed victory , and for better establishing of the orthodox faith in that point , did ordain , that upon divers festival-days in the year , a particular lesson touching the nature of the trinity , besides the other eight , should be read in their service , with rejoycing and thanksgiving to god for suppressing that horrible heresie : and for the greater solemnity , some bishop , or the chiefest clergy-man present , did perform that duty . thus came these days to their styles aforesaid , and to be honoured with extraordinary musick , church-service , robes , apparel , feasting , &c. with a particular exemption from law-tryals amongst the normans , who therefore kept them the more respectively here in england : festa enim trinitatis ( saith belethus ) digniori cultu sunt celebrandi . in france they have two sorts of grand days , both differing from ours : first , they call them , les grand jours , wherein an extraordinary sessions is holden in any circuit , by virtue of the king's commission directed to certain judges of parliament . secondly , those in which the peers of france hold once or twice a year their courts of haught justice ; all other courts being in the mean time silent . see touching these , loyseau de seigneures . to come back to england , and our own grand days , i see some difference in accounting of them : durandus in the first chapter of his seventh book , reckoneth the purification , ascension and st. john baptist to be grand days , not mentioning all-saints ; but both he in his th . chapter , and belethus in his — do call it festum maximum & generale , being not only the feast of apostles and martyrs , but of the trinity , angels and confessours , as durandus termeth it . and that honour therefore and duty quod in singulis valet , potentius valebit in conjunctis . as for the feast of all-souls , neither durandus nor belethus , nor any ancient of those times ( for they lived almost . years since ) do record it for a festival . but our country-man walsingham the monk of st. albans saith , that simon arch-bishop of canterbury in the year . at a provincial council holden at london , did ordain , quod die parasceue & in commemoratione omnium animarum ab omni servili opere cessaretur . surely he mistook it ; for neither is it so mention'd in lindewood , reciting that canon , nor in the ancient copy of the council it self , where the two feasts canonized by him are the paresceue and the conception of the blessed virgin. yet doubtless , whensoever it was instituted it was a great feast with us , tho' no where else . for the old breviarium eboracensis ecclesiae , doth not only set it down in the kalendar for a double feast , but appointeth after , the whole service , with the nine lessons for it , as a feast of the trinity . and though neither the statute of edward vi. nor our church at this day do receive it ; yet being formerly a vacation day ( as it seemeth ) our judges still forbear to sit upon it , as not hitherto made a day in courts , tho' deprived of festival rites , and therefore neither graced with robes nor feasting . the feast also of st. peter and paul on the th . of june was a double feast , yet it is now become single , and our judges sit upon it . i confess i have not found the reason , unless that by decanonizing st. paul and so leaving st. peter single , we allow him no prerogative above the other apostles , lest it should give colour for his primacy ; for to st. paul , as one born out of time , we allow no festival , either in the statute of edward vi. or in the almanacks and kalendars of our church . and why st. peter hath it not is the more observable , for that he not only is deprived of the ancient rights of his apostleship , contrary to the canons ( as the other are ; ) but also of the priviledge given him in that place by pope nicholas the d. in a bull to edward the confessour ; and being patron of the paroche and dedication of westminster , where the terms are kept , and where by the right of his day he was also priviledged from court business . other festivals i enquire not after , as of st. dunstan and the rest that stand rubricate in old kalendars ; they being either abrogated by old canons of our own church , or the statute of edward vi. whereof i must note by the way that i find it repealed by queen mary , but not revived by queen elizabeth or since . i am carried from the brevity i intended , yet all this lyeth in my way ; nor is it out of it to speak a word of st. george's-day , which sometimes falleth in easter-term , and is kept in the court royal with great solemnity , but not in the courts judicial . tho' he stood before in the kalendar , and was the english patron of elder time , yet h. chichley arch-bishop of canterbury gave him his greatness , by canonizing his day to be as a double feast and grand day , as well among the clergy as laity ; and that both the one and other repairing to their churches should celebrate it ( as christmass-day ) free from servile-work , in ardent prayers for safety of the king and kingdom . the occasion of this constitution was , to excite king henry the v. being upon his expedition for normandy ; and tho' this , among other holy-days , was abolished by the statute . and . of edw. vi. yet it being the festival of the knights of the garter , it was provided in the statute , that the knights might celebrate it on the d. d. and th . of april . other feasts there were of this nature ; as that of st. wenefred on the second of november , which is in effect no day of sitting , but applied to the pricking of sheriffs . these are vanished , and in their room we have one new memorably day of intermitting court and law business for a little in the morning , whilst the judges in their robes go solemnly to the great church at westminster on the fifth of november yearly , to give god thanks for our great delivery from the powder-treason , and hear a sermon touching it ; which done , they return to their benches . the institution hereof is by act of parliament jacobi , and it is of the kind of those ferial days , which being ordained by the emperours , not by the popes , are in canon and civil law called dies feriati repentini . i will go no farther among the tedious subtilties of distinguishing of days ; i have not been matriculated in the court of rome : and i confess i neither do nor can explain many objections and contrarieties that may be gathered in these passages . some oedipus or ariadne must help me out . chap. iii. why some law business may be done on days exempted . in the mean time let us see , why some law business may be done on days exempted , and sometimes on sunday it self , notwithstanding any thing before mentioned . for as in term-time some days are exempted from term business , and some portion of the day from sitting in courts ; so in the vacation-time and days exempted , some law business may be performed by express permission of the canon law , according to that of the poet in the georgicks , quippe etiam festis quaedam exercere diebus fas & jura sinunt — the synod of medard admitteth matters de pace & concordia , to be dispatched both on holy days and on sunday it self : the laws of hen. i. matters of concord and doing fealty to the lord : the decree of gregory ix . cases of necessity and doing piety , according to that of prosper , non recto servat legalia sabbata cultu , qui pietatis opus credit in his vetitum . the rule is verified by our saviour's healing on the sabbath . out of these and such other authorities of the laws ecclesiastical and civil , cited in the glosses , the canonists have collected these cases , wherein judges may proceed legally upon the days prohibited , or do the things herein following . for matters of peace and concord , by reason whereof our judges take the acknowledgement of fines , statutes , recognizances , &c. upon any day , even the sabbath-day , ( tho' it were better then forborn , if necessity require it not . ) for suppressing of traitours , thieves , and notoriours offenders , which may otherwise trouble the peace of the common-wealth , and endanger the kingdom . for manumission of bond-men : a work of piety . for saving that which otherwise would perish : a work of necessity . for doing that , which time overslipt , cannot be done : as for making appeals within the time limited , &c. for taking the benefit of a witness that otherwise would be lost , as by death , or departure . for making the son sui juris : as if , amongst us , the lord should discharge his ward of wardship . all which are expressed in these verses ; haec faciunt causas festis tractare diebus , pax , scelus admissum , manumissio , res peritura , terminus expirans , mora testis abesse volentis , cumque potestatis patriae jus filius exit . or thus according to panormitanus ; ratione appellationis , pacis , necessitatis , celeritatis , pietatis , matrimonii , latrocinii , & ubicunque in mora promptum est periculum . so likewise by consent of parties upon dies feriati minus solennes , viz. harvest , hay-seed , &c. as we have said before . and divers others there are , whereof see the glosses in gratian , and in the chapter conquestus ; but especially the title de feriis & dilationibus in ff . from whence most of the premises are deduc'd ▪ and where also , by a constitution of trajan , military business may be done in diebus feriis , and at all times . rescripsit ( saith the law ) ferias tantum à forensibus negotiis dare vacationem ; ea tamen quae ad disciplinam militarem pertinerent , esse feriatis diebus peragenda . upon these reasons , the admiral-court is always open ; for that strangers and merchants and sea ▪ faring-men , must take the opportunity of tides and of winds , and other necessities ; and cannot without ruine or great prejudice attend the solemnity of courts and dilatory pleadings . the marshal's court also for military matters , falleth within the priviledge granted by trajan : yet hath it observ'd , as near as conveniently it may , the canons of the church ; as forbearing to assign battle in quadragesima & temporibus prohibitis . and so lately in the case between the lo. raye and mr. ramesey . so likewise the chancery , being a court of piety , is said to be always open : but i take this to be understood as it is officina brevium and consistorium aequi & boni ; not where it is praetorium juris communis , and proceedeth in course of the common law. as for the star-chamber , it is in lieu of that which was in ancient time the counsel-chamber , and specula regni , the watch-tower of the kingdom : where the barons and other of the king's counsel us'd to meet ad prospiciendam fovendamque remp. to discover , prevent , and suppress all dangers and enormities occurrent , and to provide for the safety and good of the kingdom . it was necessary therefore that this session should not only be daily open , but ( as is said of the house of fame ) nocte dieque patens ; for an evil may happen in the night that would be too late to prevent in the morning . and therefore the statute of . henr. vii . and . henr. viii . enlarging the jurisdiction hereof , do not circumscribe it either with term-time or days of sitting . chap. iv. why the end of michaelmass-term is sometimes holden in advent ; and of hilary , in septuagesima , &c. but the terms sometimes extend themselves into the days of the church which we call vacation ; as when advent sunday chanceth on the th . of november , then michaelmass-term borroweth the day after out of advent ; and when septuagesima followeth suddenly upon the purification , hilary-term not only usurpeth upon it and sexagesima , ( which by the precedent of the church of rome here before mention'd it may do , ) but also upon quinquagesima , ash-wednesday , and quadragesima it self ; for all which there is matter enough in one place or other already shewn . yet it is farther countenanced by the statute of . edw. i. cap. . where it is thus provided ; forasmuch as it is great charity to do right unto all men at all times ( when need shall be ; ) by assent of all the prelates it was provided , that assizes of novel disseisin , mordauncester , and darrain presentment , should be taken in advent , septuagesima and lent , even as well as inquests may be taken , and that at the special request of the king made unto the bishops . where it is to be noted , that inquisitions might be taken before this statute within the days prohibited , or church time , and that this licence extended but to the particularities therein mentioned . chap. v. why assizes be holden in lent. it seemeth that by virtue of this statute , or some other particular dispensation from the bishops , assizes began first to be holden in lent , contrary to the canons . i find in an ancient manuscript of the monastery of st. albans a dispensation of this kind , thus entituled ; licentia concess . justic . reg. de assis . tenend . sacro tempore non obstante . pateat universis per praesentes nos ricardum ( miseratione divina ) abbatem monasterii sancti albani , licentiam & potestatem authoritate praesentium dedisse dilecto nobis in christo domino johanni shardlow & sociis suis justic . dom. regis , assisas apud barnet ( nostrae jurisdictionis exemptae ) die lunae proximo ante festum s. ambrosii capiendi juxta formam , vim , & effectum brevis domini regis inde iis directi . in cujus , &c. anno domini , &c. sub magno sigillo . whether this was before or after the statute , it appeareth not ; it may seem before ; for that otherwise it needed not . but i find shardlow to be justice of oier in pickering forest , . aug. an. . edw. i. if it were after , it seemeth the writ to the justices extended to somewhat out of the statute , and that this licence was obtained in majorem cautelam . but to conclude ; hereby it appeareth that although we find not the reasons of things done in ancient ages , yet nothing was done against the rules of the church without special licence and dispensation * . the feast of st. ambrose mentioned in the licence was on the fourth of april , which commonly is about a week or two before easter . and the abbat of st. alban , having exempt jurisdiction within the province of canterbury , granteth this dispensation to hold assizes in tempore sacro , as the rubrick explaineth it , lest the words [ nostrae jurisdictionis exemptae ] might be applied to some layick franchise : i assure my self there are many of this kind , if they might come to light . and as they granted licence in times prohibited , so they censur'd such as offended without licence ; as appeareth by the case of sir gilbert plumpton an. . who being to be hang'd at worcester upon the sunday for a rape committed by him , the bishop prohibited execution for that day upon pain of excommunication , &c. chap. vi. of the returns . of the returns i will not venture to speak much , but nothing at all of essoine and exception-days , for that draweth nearer to the faculty of lawyers , wherein i mean not to be too busie . the returns are set days in every term appointed to the sheriff , for certifying the courts what he hath done , in execution of the writs he received from them . and i take it , that in old time they were the ordinary days set to the defendants for appearance , every one of them being a sennight after another , to the end that the defendant according to his distance from the place where he was to appear , might have one , two , three , or more of these returns , that is , so many weeks for his appearance , as he was counties off in distance from the court where he was to appear . this is verified by the law of ethelred the saxon king , in case of vouching upon trover . gif he cenne ofer an scira . haebbe an ƿucena fyrrst ; gif he cenne ofer tƿa scira . haebbe tƿa ƿucena fyrst ; gif he cenne ofer iii. scira . haebbe iii. ƿucena fyrst ; ofer eal sƿa fela scira . sƿa he cenne . haebbe sƿa feala ƿucena fyrrt ; i. e. if the vouchee dwell one shire off , let him at first have one week ; if two shires off , let him have two weeks ; if three shires off , let him have three weeks ; and for so many shires as he dwelleth off , let him have so many weeks . the law of henry the first is somewhat more particular ; qui residens est ad domum suam , summoniri debet de placito quolibet cum testibus . et si d●mi [ non ] est , idem dicatur vel dapifero , vel denique familiae suae libere denuncietur 〈◊〉 in eodem comitatu sit , inde ad septem dies terminum habeat ; si in alia schira ●it , . dierum terminum habeat ; & si in tertio comitatu sit , . hebdomadae ; 〈◊〉 quarto , quartae hebdomadae ; & ultra non procedit ubicunque fuerit in anglia , 〈◊〉 competens eum detineat * soinius ; s●ultra mare est . hebdomadas habeat & unum diem ad accessum & recessum maris , nisi vel occupatio servitii regis , vel ipsius aegritudo , vel tempestas , vel competens aliquod amplius respectet . the statute of marlebridge cap. . soundeth to this purpose ; in assisis autem ultimae praesentationis & in placito quare impedit de ecclesiis vacantibus dentur dies de quindena in quindenam , vel de tribus septimanis in tres septimanas , prout locus fuerit propinquus vel remotus . and again , cap. . sed si vocatus , &c. ( ad warrantum coram justiciar . itinerantibus ) fuerit infra comitatum , tunc injungatur vicecomiti , quod ipsum infra tertium diem vel quartum ( secundum locorum distantiam ) faciat venire sicut in itinere justiciar . fieri consuevit . et si extra comitatum maneat , tunc rationabilem habeat summonitionem . dierum ad minus secundum discretionem justiciar . & legem communem . there was also another use of returns , as appeareth by the reformed custumary of normandy , artic. the th . some of them belonged to pleas of goods and chattels , which we call personal actions , as those of octab. some to pleas of land , and real actions , as those of quindena . pleas of goods and chattels were holden from octabis to octabis ; pleas of land not sooner than from quindena to quindena . nul n'est tenu de respondere de son heretage en moindre tems que de quinzaine in quinzaine . the more solemn actions had the more solemn returns , as we see by the stat. of dies communes in banco , which i leave to my masters of the law. i will not speak of the returns particularly , more than that octab. is sometimes reckon'd by seven days , sometimes by eight ; by seven days , excluding the feast from which it is counted ; by eight , including it . and the word is borrowed from the constitutions of the church , where the seven days following easter were appointed to be ferial-days ( as we have shewed before ) in imitation of the seven days azymorum , following the passover in the levitical law. but in this manner octab. trinitatis always includeth nine days , reckoning trinity-sunday for one , by reason the just octabis falleth on the sunday following ; which being no day in court , putteth off the return till the next day after , making munday always taken for the octab. unless you will count these two days for no more than one , as the statute de anno bissextili in the like case hath ordained , the superfluous day in the leap-year ( call'd intercalaris ) and the day going next before , to be accounted but one day . it is here to be noted , that although the sundays and grand-days be no days in court , yet they are numbred among the days of retourne , according to the civil law , feriae autem , sive repentinae sive solennes sint , dilationum temporibus non excipiantur , sed his quoque connumerentur . chap. vii . of the quarta dies post . touching the quarta dies post allowed to the defendant for his appearance after the day of return , it is derived from the ancient saxon , salique , french and german laws , where it was ordained , that the plaintiff should per triduum seu amplius adversarium expectare , usque ad occasum solis ( which they called sol satire , ) as appeareth abundantly in their laws , and in the formular of marculfus , and bignonius's notes upon the same . to which also may be added that which occurreth in gratian cap. biduum vel triduum . but the original proceedeth from the ancient custom of the germans mentioned by tacitus ; * illud ex libertate vitium quod non simul nec jussi conveniunt , sed & alter & tertius dies cunctatione coeuntium absumitur . he saith , ex libertate , because that to come at a peremptory time was a note of servitude , which the germans despised . it is very observable , that king edw. iii. calling a great council in the fifteenth year of his reign , wherein were assembled divers bishops and twenty two earls and abbots ; he appointeth them by his writ of summons to meet at london , die mercurii proxime post festum translationis s. thomae martyris proximo futura — vel saltem infra tres dies ex tunc immediate sequentes ad ultimam . the writ carrieth the form , phrase , and stile of a parliament-writ ; but in this point of triduum post differeth from all others that i have seen . hear the writ it self : rex ven. in christo r. eadem gratia bathon . & wellens . episcopo salutem . quia super quibusdam arduis & urgentibus negotiis nos & statum regni nostri angliae contigerit vobiscum & cum aliis praelat . ac magnatibus dicti regni die mercurii proximo post festum translationis sancti thomae martyris proxime futuri apud london colloquium habere & tractatum : vobis in fide & dilectione , quibus nobis tenemini , mandamus firmiter injungentes quod quibuscunque actionibus cessantibus , dictis die & loco , vel saltem infra tres dies ex tunc immediate sequent . ad ultimam personaliter intersitis nobiscum , & cum dictis prelatis & magnatibus super negotiis praedictis tractaturi , vestrumque consilium impensuri . et hoc , sicut nos & honorem nostrum ac jurium & dicti regni nostri commodum diligitis , nullo modo omittatis . teste rege apud turrim london . xii . die junii . per ipsum regem . ¶ vide plus de returnis , ll. h. ii. cap. . chap. viii . why i have used so much canon and foreign law in this discourse , with an excursion into the original of our law. i have used much canon and some other foreign law in this discourse , yet , i take it , not impertinently ; for as these western nations are , for the most part , deduced from the germans , so in ancient times there was a great 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and affinity in their laws : — facies non omnibus una , nec diversa tamen , qualem decet esse sororum . they that look into the laws of our english saxons , of the saliques , french , almayns , ripuarians , bavarians , longobards , and other german nations , about . years since , shall easily find it . out of them , and other manners , rites and customs of the saxons and germans is the first part and foundation of our laws , commonly called the laws of edward the confessour , and common law. two other principal parts ( as from two pole-stars ) take their direction from the canon law and the law of our brethren the longobards ( descending of saxon lineage as well as we ) called otherwise the feodal-law , received generally through all europe . for in matters concerning the church and church-men , advousons , patronage , presentations , legitimation , matrimony , wills , testaments , adultery , defamation , oaths , perjury , days of law , days of vacation , wager of law , and many other things , it proceeded , sometimes wholly , sometimes for the greater part , by the rules and precepts of the canon law. and in matters touching inheritance , fees , tenures by knights-service , rents , services , wards , marriage of wards , reliefs , treason , pleas of the crown , escheats , dower of the third part , aids , fines , felony , forfeiture , tryal by battel , essoine , warrantie , &c. from the feodal law chiefly ; as those that read the books of those laws collected by obertus and gerardus may see apparently . tho' we and divers other nations ( according as befitteth every one in their particular respects ) do in many things vary from them , which obertus confesseth to be requisite , and to happen often among the longobards themselves . i do marvel many times , that my lord cooke , adorning our law with so many flowers of antiquity and foreign learning ; hath not ( as i suppose ) turned aside into this field , from whence so many roots of our law , have of old been taken and transplanted . i wish some worthy lawyer would read them diligently , and shew the several heads from whence these of ours are taken . they beyond the seas are not only diligent but very curious in this kind ; but we are all for profit and lucrando pane , taking what we find at market , without enquiring whence it came . another great portion of our common law is derived from the civil law , ( unless we will say that the civil law is derived from ours . ) dr. cowel , who hath learnedly travelled in comparing and parallelling of them , affirmeth , that no law of any christian nation whatsoever , approacheth nearer to the civil law than this of ours . ( his meaning is no municipal law. ) yet he saith that all of them generali hujus disciplinae aequitate temperantur , & quasi condiuntur . had he not said it , his book it self , intituled institutiones juris anglicani ad methodum & seriem institutionum imperialium compositae & digestae , would demonstrate it : which bracton also above . years before right well understanding , not only citeth the digests and books of civil law in many places for warrant of our common law , but in handling our law pursueth the method , phrase , and matter of justinian's institutes of civil law. when and how these several parts were brought into our common law , is neither easily nor definitively to be expressed . those no doubt of canon law , by the prevalency of the clergy in their several ages : those of the feodal by military princes , at , and shortly after the conquest . and those of civil law , by such of our reverend judges and sages of ancient time , as for justice and knowledge sake sought instruction thence , when they found no rule at home to guide their judgements by . for i suppose they in those days judged many things , ex aequo & bono , and that their judgements after ( as responsa prudentium among the romans , and the codex theodosianus ) became precedents of law unto posterity . as for the parts given unto common law out of the constitutions of our kings since the conquest , and before magna charta ; i refer them ( as they properly belong ) to our statute law , tho' our lawyers do reckon them ordinarily for common law. among these various heads of our law , i deduce none from the scots ; yet must i confess that if those laws of theirs , which they ascribe to malcolm the second , who lived about sixty years before the conquest , be of that antiquity , ( which i cannot but question ) and that our book called glanvil be wholly in effect and verbatim for the greatest part taken out of the book of their law , called regiam majestatem , for they pretend that to be elder than our glanvil ; i must ( i say ) ingenuously confess , that the greatest part or portion of our law is come from scotland , which none i think versed either in story or antiquities will or can admit . to come therefore to the point ; if my opinion be any thing ▪ i think the foundation of our law to be laid by our german ancestours , but built upon and polished by materials taken from the canon law and civil law. and under the capacious name of germans , i not only intend our saxons , but the ancient french and saliques ; not excluding from that fraternity the cimbrian nations , i. e. the norwegians , danes , and normans . and let it not more mislike us to take our laws from the noble germans , a prime and most potent people , than it did the conquering romans theirs from greece , or the learned grecians theirs from the hebrews . it is not credible that the britains should be the authors of them ; or that their laws after so many transmutations of people and government , but especially after the expulsion ( in a manner ) of their nation , or at least of their nobility , gentry and free-men , the abolishing of their language , and the cessation of all commerce with them , and an hereditary hostility settl'd between these nations ; that after all this ( i say ) they should remain or be taken up by the conquering enemy , who scarcely suffered one town in a county to be called as they named it , or one british word almost , ( that i yet have learned ) to creep into their language . admit that much of their servile and base people remained behind them , pleased perhaps as well with their new lords as with their old ; can we think that the saxons should take either laws or manners , or form of government , from these base and servile people ? i would not blemish the least feather of the british honour ; but i must follow the truth , tho' it rubb upon the apple of their eye . what i have said , appeareth not only by bede , ( lib. . cap. . ) but by their own historians . bede having spoken of their most miserable extirpation throughout the whole land , saith , itaque nonnulli de miserandis reliquiis ..... and the chiefest monument of british antiquity , ( written in the british tongue , and brought about . years since out of britannia armorica by walter arch-deacon of oxenford , and in those days translated into latin by monumethensis ) doth report that in the days of cadualladur , the land was so afflicted with discord , sloth , pestilence and famine , that miserae ( britannorum ) reliquiae patriam , factis agminibus , diffugientes , transmarinas petebant regiones , cum ululatu magno sub velorum funibus hoc modo cantantes ; dedisti nos tanquam oves escarum , in gentibus dispersisti nos , &c. ps . . . and cadualladur himself there complaineth fleeing into armorica , whence he never returned , incumbit [ divinae ] illius ergo potestatis ultio , quae nos ex natali solo extirpat ; quos nec olim romani , nec deinde scotti , vel picti , nec versutae proditiones exterminare quiverunt . and the author going on , sheweth , that the land was so universally destitute of british inhabitants , that the saxons ( which were already seated here ) inform'd their country-men beyond seas of these desolate territories , inviting them to come and possess them . quod cum ipsis indicatum fuisset ( saith the author ) nefandus populus ille , collecta innumerabili multitudine virorum & mulierum , applicuit in partibus northanhumbriae , & desolatas provincias ab albania ( i. e. scotia ) usque ad cornubiam ( cornwall ) inhabitavit . non enim aderat habitator qui prohiberet , praeter pauperculas britonum reliquias quae superfuerant , quae infra abdita nemorum in gualiis commanebant . ab illo tempore , potestas britonum in insula cessavit , & angli regnare coeperunt * their history of cambria ( written also in their own welch language , about . years since , and translated into english by their country-man and greatest antiquary humf. lhoyd ) doth acknowledge , that after cadwallader's departure , there remain'd none of his nation , but certain poor britains that liv'd by roots in rocks and woods . and that the saxons , angles , and juthes ( that is to say , goths ) being then call'd in by such of their country-men that were there before , did come in great numbers ; and dividing this land into divers territories and kingdoms , did inhabit all the cities , towns , castles , and villages , which the britains had builded , rules , and inhabited , by the space of . years . let the reader now judge , whether it be likely , that the scrupulous nation of the saxons either did , or could by any probable means take any laws from the poor reliques of the britains . * when the romans conquer'd this land , they neither remov'd the inhabitants nor brought any foreigners upon them , other than ( to govern and keep them in obedience ) some legions of souldiers and small colonies . yet that they made an alteration of their laws , we may see in the scripture by the example of judaea . for tho' pompey obtained the kingdom there , rather by the confederacy with hyrcanus , than by right of conquest , ( and therefore suffer'd them to enjoy their rites of religion , with the liberties of most of their cities ; ) yet it being reduced into a province ( as this of ours was ) their laws were so changed , as by their own confession , john . . it was not lawful for them to put any man to death . therefore our saviour and the two thieves were judged , and suffer'd upon the cross after the roman manner , not according to the laws of the jews , ( for their law never inflicted the cross upon any offender ) and the punishment of blasphemy wherewith they charged christ , was stoning ; ( in which course , they once in a fury were about to put him to death , joh. . . ) and the punishment of theft a quadruple restitution , or bondage in default thereof . as for the stoning of stephen , it was not judicial but tumultuous , an act of fury , and against law : in which course they meant also to have murthered st. paul , had not lysias prevented them , by sending him to his legal tryal , caesar's judgement seat. wherein it is further to be observ'd , that even then , offences committed about the very judicial law , and religion it self , was also under the cognizance of the roman judge . for even that self same cause , wherein paul stood accus'd before festus ( as festus himself reporteth it ) acts . . [ was ] touching questions of their own religion . by this , we may conceive , how the romans dealt with the britains touching their laws ; and the story of st. alhan and st. amphibalus somewhat sheweth it . where , according to the roman manner , st. alban was convened before the roman judge by souldiers not by civil officers , and before his execution whipp'd ( as pilate us'd our saviour ) and then deliver'd to the souldiers to be beheaded . bed. lib. . ca. . but what laws soever the romans us'd in britain ; the saxons doubtless swept them all away with the british nation . otherwise than that in composing laws for the government of their people , after they had receiv'd christianity from the roman clergy , they might perhaps ( by their advice ) take somewhat also from the roman law. which beda seemeth to avouch , lib. . ca. . speaking of the acts of ethelbert the first christian saxon king : qui inter caetera bona quae genti suae conferebat ; etiam decreta illi judiciorum , juxta exempla romanorum , cum consilio sapientum constituit . what beda meant by the words juxta exempla romanorum , is not perspicuous . as , whether his meaning was , that he made positive decrees , as the romans had done , for the government of his people ? or , that in making his decrees , he took the sum and manner of them from the romans ? this doubt we shall easily resolve , by that which followeth in bede himself : quae ( decreta ) conscripta anglorum sermone , hactenus habentur & observantur ab ea . in quibus primitus posuit , qualiter id emendare deberet , qui aliquid rerum vel ecclesiae , vel episcopi , vel reliquorum ordinum furto auferret , volens scil . tuitionem eis , quos & quorum doctrinam susceperat , praestare . and to say truth , this that bede here doth mention touching the protection of the clergy , is the chiefest matter in them that he taketh from the romans , as namely , from their canons not from their civil law. for the secular part of those his decrees differ far from those of the romans , as by the saxon copy of them ( which i my self have to shew ) appeareth plainly . but to conclude this point ; whatsoever in them savoureth of the roman law , be it canon or civil , it doubtless was inserted by his roman clergy , being then a principal part of the king's council , ( as the clergy was afterward in all ages . ) and of them chiefly , i suppose that to be meant which bede mentioneth , cum consilio sapientum constituit . we find among the saxons , the example and the reason , why our common law was 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an unwritten law. they were originally a grecian colonie coming out of lacedaemon and the territorie of sparta . where lycurgus being sometime king and author of their law , among other of his decrees he named 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ordain'd this for one , that their laws should not be written , because he would have every man to fix them in his memory : and for that purpose , made them short and summary , after the manner of our maximes . this course , the saxons , and by their example the other german nations held for many ages . the first of the northern nations that alter'd it , were the goths ; who in the aera . i. e. the year of christ . under euricus their king , set their laws in writing : legum instituta scriptis habere caeperunt * ..... the burgundians and saliques a little before ; but the saxons themselves , and the angli , werini and frisii are not noted to have written law , till the time of herald the dane , about the year . so that our saxons here in britain began to write some of their laws before their brethren of germany . for tho' they reduc'd not the general manners and customs of their country , whereby they liv'd and were govern'd , into a written volume , but left them still , as lycurgus his rhetras , to common memory and tradition ; yet many of their ancient kings after they had recieved christianity , put their own constitutions into writing . so did the most ancient of them , aethelbert king of kent about the year . if his laws ( whereof i have a ms. copy ) were in his own days put in writing . so did inas king of the west-saxons . what the laws of the britains were , remains at this day to be seen by a model of them in an ancient manuscript under the title of the laws of hoel dha , ( that is , hoel the good ; ) nothing consonant to these of ours at this day , or those of the saxons in time past . but we find by the red book in the exchequer , that the laws of hen. i. did so concur in many things with them of the other nations we spake of , that sometimes he not only citeth the salique law , and the ribuarian or belgique law by name , but deduceth much of the text verbatim from them . and we find also a great multitude of words of art , names of offices , officers and ministers in our law , common in old time to the germans , french , saliques , longobards , and other nations , as well as to our saxons , danes , and normans ; but not one to my knowledge that riseth from the british tongue , nor do we retain any law , rite or custom of the ancient britains , which we received not from the saxons or germans , as used also by them of old , before they came into britain . for these few greek words that are found in our law , chirographer and protonotary , ( whereby some argue the antiquity of our law to be from the druides , whom caesar and pliny report to have used the greek tongue ; ) it is doubtless , that they are come to us from the civil lawyers , and the one of them being a mongrel , half greek and half latin , could not descend from the druides , who had neither knowledge nor use of the latin tongue . they therefore that fetch our laws from brutus , mulmutius , the druides , or any other brutish or british inhabitants here of old , affirming that in all the times of these several nations , ( viz. britains , romans , saxons , danes and normans ) and of their kings , this realm was still ruled with the self same customes that it is now ( viz. in the time of king henry vi. ) govern'd withal ; do like them that make the arcadians to be elder than the moon , and the god terminus to be so fixed on the capitoline-hill , as neither mattocks nor spades , nor all the power of men nor of the other gods , could remove him from the place he stood in . and thus i end . appendix . pat. . hen. iii. m. . rex universis patentes literas inspecturis salutem . cum venerabilis pater s. cant. episcopus , auctoritate domini papae & fratrum suorum , nobis gratiam de juramentis praestandis coram justiciariis nostris de praecept . nostro itiner . ab instanti adventu domini usque ad vigiliam sancti thomae apostoli , & a principio quadragesimae usque ad dominicam qua cantatur isti sunt dies ; duntaxat in rebus subscriptis ; viz. in assizis ultimae praesentationis de morte antecessor . novae diss . de magna assiza , & de inquisitionibus quae de terra emergerint coram eisdem justiciariis nostris vel per judicium vel de consensu pertinent : ita quod haec concessio hoc anno tantum durabit usque ad diem dominicam supradictam : nos per literas nostras patentes quas eidem domino archiepiscopo fieri fecimus , protestati sumus quod concessio illa nobis ad praesens facta usque ad diem dominicam supradictam , non trahetur in consequentiam post eundem diem . cum igitur supplicaverimus ven. patri iv. archiepiscopo eboracensi de consimili gratia nobis concedenda de juramentis praestandis per totam provinciam suam usque ad terminum praedictum : nos per has literas nostras patentes protestamur , quod dictus archiepiscopus ebor. per totam proviciam suam id de juramentis praestandis ( sicut praedictum est ) nobis duxerit concedendum , concessio ista ad praesens facta usque ad terminum praedictum non trahetur in consequentiam post diem eundem . in cujus rei testimonium eidem domino archiepiscopo ebor. dedi has literas nostras patentes sigillo nostro signatas . teste meipso apud westmonast . . nov. anno regni nostri undecimo . claus . . h. iii. m. . rex dilectis & fidelibus suis stephano de segrave & roberto de lexinton , & sociis suis justic . itinerantibus in com. warw. leic. glouc. & wigorn. salutem . sciatis quod venerabilis pater s. cant. archiep. auctoritate domini papae , concessi quod juramenta praestentur coram justiciariis nostris itinerant . ab instanti adventu corum usque vigiliam sancti thomae apostoli , & à principio quadragesimae usque ad diem dominicam qua cantatur isti sunt dies , viz. in ass . ultimae praesentationis de morte antecessor . de magna ass . & de inquisitionibus quae emergerint de terris , sicut plenius nobis constitit ex inspectione literarum domini cant. quas inde vobis mittimus . rogamus ut v. p. w. ebor. archiepiscopus quatenus concedens juramenta in consimilibus causis praestari infra provinciam suam usque ad praesat . terminum , literas suas patentes consimiles literas domini cant. inde habere faciat . vt autem liberius & facilius hoc volet facere , misimus literas nostras patentes , quales fieri fecimus domino cant. protestantes quod post terminum praefatum concessio praedicta ab eo nobis facta non poterit trahi in observantiam . vobis igitur mandamus , quod cum archiepiscopus ebor. hoc nobis concesserit , & literas suas patentes nobis habere fecerit , iter justic . nostr . in comitat qui ..... sunt jurisdictioni praedicti archiepiscopi ebor. & aliis comitat. subsint jurisdictioni archiepiscopi cantuar. usque ad praefatum terminum , si opus fuerit , continuetis solita prudentia & solitudine . quod non dubitamus vos esse facturos negotiis nostris expediendis ad commodum & honorem nostrum intendent . dat. apud westm . . die nov. in custodia franc. bacon de graies-inn armig. . febr. an. . discreto viro domino tho. weyland illustr . reg. angl. justic . * r. miseratione divina norwic. episcopus salutem & honoris augmentum . cordis nobis est ut omni tempore justitia debitum & celerem sortiatur effectum . hinc est quod cum ass . ultimae praesentationis super ecclesiam de kirkby omnium sanctorum inter imann . quae fuit uxor ric. de thwait querentem , & ricardum lc cam defendentem , coram vobis sit arannata , ut intelliximus , vobis auctoritate praesentium permittimus quod non obstante instanti quadragesima assisam praedictam inter partes praedictas etiamsi juramentum interveniat licite capiatis : valete . dat. apud buketon . kal. martii , anno domini m. cc. lxxvi . finis . a short apologie for arch-bishop abbot , touching the death of peter hawkins . by an unknown hand . with a large answer to this apologie , by sir henry spelman kt. as also , several letters relating to the same fact : with a copy of the dispensation for irregularity , granted to the arch-bishop . and a treatise of the original of testaments and wills , and of their probats , and to whom it anciently belonged . by the said sir henry spelman kt. an apologie for arch-bishop abbot , touching the death of peter hawkins the keeper , wounded in the park at bramsil , july . . . it is certain that in foro conscientiae , this case may not only deservedly produce a fear and trembling in him who was the accidental cause thereof ; but may justly make the tallest cedar in lebanon to shake , in recounting with his inward man , what sin it is that hath provoked god to permit such a rare and unusual action to fall out by his hand : which maketh him , for the time , to be fabula vulgi , and giveth opportunity to the enemies of religion of all kinds , to rejoice , to speak their pleasure , to fill their books and libels , within the realm , and perhaps , beyond the seas . and that , concerning his calling as well as his person , not only for the present , but also in future ages ; beside grief to his friends , and some scandal to the weak , who do not rightly apprehend things , but raise questions which few men can resolve . to all which may be added , the interpretation of it by his majesty , graciously or otherwise ; and the forfeiture , that in rigorus construction of law may be put upon him , although held for no great delinquent ; besides the providing for a widow and four fatherless children . all which may pierce a heart that is not senseless ; and day and night yeild him matter enough of troubled meditations . . and yet , lest he that intended no ill ( much less to that person , a poor man and a stranger to him ) should be swallowed up with sorrow ; he is not devoid of some comfort , as that consensus facit peccatum , and voluntas facit reatum ; and where those concurr not , misdemeanours are properly contra nullum decalogi praeceptum . and that when god , speaking of such casual death ( exod. . . ) useth these words , if a man lye not in wait , but god deliver him ( the slain man ) into his hands ; divines collect thereupon , that it is not humanum but à deo , which no man's providence can absolutely prevent . for what god will have done , shall be ; and no creature may dare to set him to school in what manner , or by what person he will have it perform'd . and deuteronom . . , . god putting the case of the man slain by the iron of his neighbour's ax slipping off , appointeth cities of refuge , lest he should be slain also ; who ( as he saith ) was not worthy of death : and again , that innoxius sanguis , innocent blood be not shed in the land. where we may collect , that such cases are foreseen and order'd by god himself ; and that no calling , no not that of the priest , is free from that which god will have accomplish'd ; since he must communem hominum subire sortem . homo sum , humani nihil a me alienum puto . and , quod cutque contingere potest , cuivis potest ; although of all others , the priest should be most wary , what he attempt and how . . there is no text in the old testament which directly distinguisheth the priest from other men , in case of blood ; but there are examples ( which may not be apply d to evil , for that were to pervert them ) resolving one scruple which is made . as moses was no priest , yet he gave down the law ; and he consecrated aaron the high-priest , notwithstanding the time was that he had kill d the aegyptian . the levites slew . of the israelites , after the idolatry with the golden calf . phineas , who was afterwards the high-priest , slew the israelitish man with the midianitish woman , and was blessed by god for it . samuel hewed agag to pieces . jehoiada the priest commanded athal●ah the usurper to be slain . the machabees fought for their countrey ; and so took away the lives of many a man. paul was consenting to the death of stephen . peter , ( although rebuk'd for it ) cut off the ear of malchus . josephus the jew , of the seed of the priests , was captain over judah , and fought divers times . out of all which , i do only make this collection ; that the priest s restraint from blood , is not ex jure divino , but ex jure positivo ; pontificio soil . vel canoni●o , or ecclesiastico , as we call it ; out of caution , for purity , and decency , and good congruity for so holy a calling , which cometh so near god , and attendeth at his altar . . see then in the ecclesiastical law , what grace is afforded to him , who against his will , hath casually been the death of another . there is in the decretals , a title de homicidio voluntario vel casuali : concerning the latter of which , there be many rescripts ; which demonstrateth , that in human life such things do frequently fall out . in these , there are five chapters , cap. lator : cap. dilectis siliis : cap. ex litteris : cap. ex litteris tuae : cap. joannes : where the rubrick is , homicidium casuale non imputatur ei qui non fuit in culpa : and homicidium casuale non imputatur ei qui dedit operam rei licitae , nee fuit in culpa . and there the decision is evermore , that there is no irregularity in promovendo , or in promoto ad sacros ordines . this is the more to be noted , because it is not the interpreters , but the body of the law. and the gloss thereupon hath ; nota , quod homicidium casu commissions , culpa non praecedente non est imputandum . and , sibi imputari non debet , quia fortuitos casus , qui praevideri non possunt , non praevidit . and , de casu fortuito nullus tenetur , cum praevideri non possit . and upon this the stream of the canonists do run , as by a multitude of books may be shew'd : with whom our bracton , a great civilian and common lawyer too ; homicidium casuale non imputatur . . the two heads whereto the law looketh , freeing a man from blame , and expresly from irregularity , are ; that the person by whom the action is perform d , do not dare operam rei illicitae , and that he use diligence of his part that no hurt be committed . azorius the jesuite saith , irregularitas , cum ob delictum constituitur , non nisi ex lethali peccato contrahitur : nisi ex homicidio fiat quis irregularis , eo quod det operam rei vetitae & interdictae ; nam tunc quamvis homicidium casu sequatur , ob culpam nostram levem vel levissimam , multorum est opinio irregularitatem contrahi . and ivo in his canons , some hundreds of years before him ; si duo fratres in sylva arbores succiderint , & appropinquante casura unius arboris , frater fratri dixerit cave , & ille fugiens , in pressuram arboris inciderit , ac mortuus fuerit , vivens frater innocens de sanguine germani dijudicatur . now , the ca●e at bramsil , is within the compass of these two conditions . for the party agent , was about no unlawful work : for what he did , was in the day , in the presence of fourty or fifty persons , the lord zouch , who was owner of the park , not only standing by , but inviting to hunt and shoot ; and all persons in the field were call'd upon to stand far off , partly for avoiding harm , and partly lest they should disturb the game ; and all in the field perform'd what was desir'd . and this course did the lord arch-bishop use to take , when or wheresoever he did shoot ; as all persons at any time present can witness : never any man being more solicitous thereof , than he evermore was . and the morning when the deed was done , the keeper was twice warn'd to stay behind , and not to run forward ; but he carelesly did otherwise , when he that shot could take no notice of his galloping in before the bow ; as may be seen by the verdict of the coroner's inquest . . this case at bramsill is so favourable ; that the strictest writers of these times , directly conclude , that if a clergy-man committing casuale homicidium be about a forbidden and interdicted act , yet he is not irregular , if the interdicted act be not therefore forbidden , because it may draw on homicide . and thereupon , inasmuch as hunting is forbidden in a clergy-man , not in respect of danger of life , but for decency , that he should not spend his time in exercises which may hinder him from the study fit for his calling , or for other such reasons ; irregularity followeth not thereupon . and to this purpose , writeth at large soto , covarruvias , and suarez , who are great canonists and schoolmen . and if this be true , ( as out of great reason it may be so held ) how much further is the present case in question from irregularitie . . but some go directly to the point , and say , that the lord arch-bishop did navare operam rei illicitae , because he was on hunting ; for that was interdicted to a bishop by the canon de clerico venatore ; and so by a consequent he must needs be irregular . to which objection , see how many clear and true answers there be . as first , that the canon being taken out of the decrees , is by gratian himself branded to be palea , no better than chaff . secondly , it is cited out of the fourth council of orleans ; and there is no such thing to be found , as the gloss well observeth . thirdly , it forbiddeth hunting cum canibus aut accipitribus ; and none of these were at bramsil . and if you will enforce it by comparison or proportion , the rule of the law is , favores sunt ampliandi , odia restringenda : where mark , when hunting with dogs or hawks is forbidden , it is not for fear of slaughter , for there is no such danger in either of them . fourthly , the canon forbiddeth hunting voluptatis causa , but not recreationis or valetudinis gratia , which the books say is permitted etiam episcopo . fifthly , the canon hath , si saepius detentus fuerit , if he make a life or occupation of it ; which the world knoweth , is not the arch-bishop's case , but a little one time in the year , directed so by his physician , to avoid two diseases , whereunto he is subject , the stone and the gout . sixthly , it is clamosa venatio against which the canon speaketh , not quieta or modesta , which the canonists allow ; and this whereof the question ariseth , was most silent and quiet ; saving that this accident , by the keeper's unadvised running in , hath afterwards made a noise over all the countrey . . these exceptions , as they naturally and without any enforcing , give answer to this objection of the canon ; so there is another thing that may stop the mouth of all gain-sayers ; if any reason will content them . and that is , that by the stat. of henr. viii . . ca. . no canon is in force in england , which was not in use before that time , or is not contrary or derogatory to the laws or statutes of this realm , nor to the prerogatives of the royal crown : of which nature this is . for in charta de foresta , archbishops and bishops by name have liberty to hunt : and . ric. ii. cap. . a clergy-man who hath l. by the year , may keep grey-hounds to hunt . and linwood , who liv'd soon after that time , and understood the ecclesiastical constitutions and the laws of england very well , in treating of hunting , speaketh against clergy-men using that exercise unlawfully ; as in places restrain'd or forbidden ; but hath not one word against hunting simply . and the arch-bishop of canterbury had formerly more than twenty parks and chaces of his own , to use at his pleasure ; and now by charter hath free-warren in all his lands . and by ancient record , the bishop of rochester , at his death , was to render to the arch-bishop of canterbury his kennel of hounds as a mortuary , whereof ( as i am credibly inform'd ) the law taketh notice for the king sede vacante , under the name of muta canum and mulctura . to this may be added , the perpetuated use of hunting by bishops in their parks , continu'd to this day without scruple or question . as that most reverend man the lord arch-bishop whitgyfte us'd in hartlebury-park while he liv'd at worcester ; in ford-park in kent ; in the park of the lord cobham , near canterbury ; where , by the favour of that lord , he kill'd twenty bucks in one journey ; using hounds , grey-hounds , or his bow , at his pleasure , although he never shot well . and the same is credibly reported of the lord arch-bishop sandes . and it is most true , that the deans and chapter of winchester use it as they please in their franchise . to say nothing of dr. rennal , whose hounds were long famous throughout all england ; and yet he was by profession a canonist ; and knew well what induced irregularity . i will add two things more , which directly appertain to the arch-bishop of canterbury . the one is , the famous record , that at the coronation of queen eleanor , wife to henr. iii. the earl of arundel ( who was by his place cup-bearer for that day ) was enforc'd to serve by a deputy , because he was excommunicated by the arch-bishop , for taking up his hounds coming into the earl's grounds to hunt ; where the arch-bishop pleaded and alledg'd that it was lawful for him to hunt within any forest of england , whensoever he would . the other , is that which is written of arch-bishop cranmer , in his life ; where i will cite the very words : permiserat ei pater aucupium , venationem , equitationem , &c. quibus quidem , cum jam archiepiscopus relaxare animum & abducere se à rebus gravioribus vellet , ita utebatur , ut in famulatu suo non fuerit quisquam qui in generosum equum salire ac tractare elegantius , aut aves ferasque aucupio aut venatione insequi commodius intelligentiusque potuisset : saepe etiam , etsi oculis infirmis esset , arcum tendens , sagitta percussit seram . out of all which , and many more records and cases that are to be shewed , the conclusion is clear , that howsoever the canon may touch bishops and clergy-men beyond the seas , it meddleth not with the bishops of england , who by favour of princes and the state have baronies annext to their sees . so that it doth arise out of true collection from these heads , that there is no danger of irregularity in the lord arch-bishop's case , either toward himself or other men . his majesties princely grace giveth an end to all ; and this he most humbly craveth . for other things , god being appeas'd ( as he hopeth that he is ) he dreadeth not the tongue or pen of any enemy : among whom , the popes and cardinals have wilfully committed many poisonings , murthers , and outragious acts ; and yet they must believe that they are the head and chiefest members of the church . an answer to the foregoing apologie for arch-bishop abbot ; by sir henry spelman kt. touching the first , second , and third sections : it may be that the priests in the old law ( whose ministry was altogether in blood ) were not prohibited but that upon just occasion they might shed even the blood of man as well as of beasts ; and put on an armour as well as an ephod . for the tabernacle was covered with red skins , to signify cruentum seculum , cruentum ministerium : and moses ( whose hands were dipt in blood ) was not forbidden to be the chief founder thereof . but when the temple came to be built ( which was the image of the church of christ ) then the hands of david , tho' they had fought the battles of god , yet because they were seasoned with blood , they might not lay one stone in that foundation . therefore , when the old law and this bloody priesthood were grown to an end , and going out of the world , and that the priests of the gospel were entring in their room into the world ; our saviour commanded peter to put up his sword ; for now , arma horrentia martis rejicienda ; and stola candida induenda fuit . tho' then some priests in the old law and many thousand levites were martial-men , yet for many hundred years in the time of the gospel , i read not of any : insomuch , that the succeeding ages desiring a martial saint , were driven to suppose st. george . whether therefore these laws of the church , which at this day prohibit clergy-men to meddle with matters of blood , be meerly ex jure positivo , or ex divino mixto , i leave it to the determination of the reverend divines . . concerning the cases alledg'd out of the decretals : it is true that the rubrick is , homicidium casuale non imputatur ei qui non fuit in culpa ; and homicidium casuale non imputatur ei qui dedit operam rei licitae , nec fuit in culpa . and so likewise , is that alledg'd out of the gloss thereupon , and out of bracton . but let us parallel the case in these with them , which are as followeth . a. and p. two clerks sporting together , a. by chance threw p. down , who having a knife by his side , the same happened to wound a. that he died . pope alexander iii. commanded the bishop of exeter in this case to admit p. to holy orders ; for sporting was lawful . a sickly chaplain being gotten upon an unruly horse , and he checking him with bridle and spur to stay him , the horse brake his bridle , cast his master , and running over a woman coming by , kill'd a child in her arms . this chaplain was admitted to holy orders , for that neither in will nor act he committed homicide , but also did a lawful act. one being to unlade a cart of hay , looked round about to see if any were near , and seeing none , threw a stack off the cart , and having unladed it , a boy was after found dead with a little stripe in his face . this priest after canonical purgation was admitted to his place . a monk helping to take a bell down out of a steeple , casually thrust down a piece of timber , which bruised a boy to death . the monk is judged not uncapable of further ecclesiastical preferment , for that the business was necessary , and the place not for ordinary resort . a priest tolling a bell to prayers , the same fell and killed a boy . the bishop is commanded to suffer the priest to execute his function , for nihil potuit imputari , si casus omnes fortuitos non praevidit . tho' there be many points in all these cases ( and more in some than others ▪ to excuse the parties agent ; yet will i meddle only with those two which are most eminent , and offer d by the apologist ; that is , animus or intentio innocua , and actio legitima . touching the intent , none is so impious as to imagine that his lordship intended to hurt any man : yet is there this difference between his intent and theirs in the cases alledged : they intended to hurt neither man nor beast , he , tho not to hurt a man , yet to kill a beast : they , nihil saevum aut non legitimum : he , legitimum quiddam sed tamen saevum . for there is a kind of cruelty in the slaughter of every thing ; and therefore in the old law ( lev. . . ) he that taketh any beast or fowl by hunting that may be eaten ; shall pour out the blood thereof , and cover it with dust ; that the cruelty appear not , as ● take it . and in our law , those that were exercised in slaughter of beasts , were not received to be tryers of the life of a man. much is to be said out of histories to this purpose . but to come to the point whereon all dependeth , whether the action his lordship was now about , be lawful or not ? the places of azorius and ivo are truly cited ; and i doubt them not to be law : that is , to this effect , that it worketh no irregularity , where , in a lawful action a clerk killeth a man casually , having first used all diligence to prevent it . and it appeareth that his lordship did this so carefully , that all were continually called upon , not only to stand off , but so farr off as sheweth his lordship to be very unskilful in the use of his bow ; and may therefore touch him in discretion for meddling with so dangerous an engine in so great an assembly ; and consequently produce irregularity even by the words of azorius alledged to excuse him , tho' the action be lawful : nam tunc quamvis homicidium casu sequatur , ob culpam nostram levem vel levissimam , multorum est opinio irregularitatem contrahi . but not to fall from the tree by reaching at a twig ; we will rest upon the chief station in the case , the nature of the action ; which tho' it be forbidden , yet according to soto , covarruvias and suarez ( as it is alledged ) induceth not irregularity when homicide follows thereon , if it be not therefore forbidden , because it may draw on homicide : concluding , that tho' hunting be forbidden to a clergy-man , yet for that it is not forbidden in respect of danger of life , but for decency , &c. irregularity followeth not thereupon . as for covarruvias and suarez , i have them not ; but soto is not happily alledged . for tho' he incline to that opinion ( with cajetan ) yet he taketh a a distinction that woundeth the case in question ; and that is , venatione , quae armis & telis fit , profecto siet clericus irregularis : and this falleth out to be now the case . for this hunting was perform'd with a cross-bow , a deadly and a dangerous weapon , that hath been the occasion of many bloody misfortunes . but in a former passage , soto also saith , that cajetan and sylvester and doctores ●uris canonici universalem regulam astruunt , quod omnis qui dat operam rei illi●itae , quandocunque ex illa datione sequatur homicidium , fiat irregularis . and azpilcu●ta navarrus saith , that cajetan in the other place ( and by consequence sotus ) is to be understood with a limitation , as meaning venationem passerum & perdi●um ad aucupis cantum , vel accipitris , sine armis in provinciis — non venationem ursorum , aprorum , & cervorum , quae armis exercetur . enchirid. cap. . sect. . wherein , the distinction he taketh , making a main difference between venationem ludi●ram and venationem martiam , concludeth plainly , the case in hand to have wrought irregularity . and the apologist finding no sure ground in this assertion , buildeth no otherwise upon it , than if it be true as out of great reason ( he saith ) it may be so held : and passeth from it to his chiefest place of refuge , shewing that the canon that makes hunting to be actio illicita doth no way touch his lordship . first , for that upon the matter there is no such canon : insomuch as gratian himself ( that collected the canons ) brandeth this to be palea and no better than chaff . it is true , he brandeth it with the term palea , and was a worthy man ; but noted generally to have mistaken many things , and some extremely . but if that be the meaning of the word , his error seemeth very perspicuous , as finding this canon ascribed to the council of orleans and not finding it there , he presently branded it , palea . but the canonists have many other opinions of it , as to signifie 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 antiqua ; or of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 rursum . john andrea , imota , alexandrinus and jason , famous professors , think this title to be put over the heads of many canons , to signifie they were added by protopalea a cardinal , since gratian's time . and experience excludeth the first interpretation of the word , for that the canons so entituled are very many , and not rejected as spurii or palea . besides , burchard bishop of wormes , who lived long before gratian , hath this very canon in his second book , cap. . and there ascribed ( as it ought ) to the council of meldis ; as also by ivo , part . . ca. . if then it be any where in the councils , it sufficeth ; tho' the collector mistook the place , which is easily done : as even the evangelist matthew ( ca. . . ) citeth a place out of the prophet jeremy , which is not found there , but in zachariah . it is apparent also that many copies of councils are unperfect , and want some of the true canons , as neglected or not finished by the notary . but if need be , this canon hath further warrant , even from the times almost of the primitive church . for in concil . agathensi , of . bishops in an. . ca. . it is said , sacerdotes & levitae canibus ad venandum & accipitribus non utantur . and in concil . epaunensi , of . bishops , in an. . vt episcopi venatores non sint , nec accipitres alant . the capitularies also of ludovicus imp. taking notice of it , about the year . prohibiteth priests , ut venationes ferarum vel avium minime sectentur . addit . . ca. . so that we have no reason to account this canon either supposititium or paleam ; but rather to be ( as it is indeed ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 antiquum or ex antiquis . according to which sense , the canons of like nature in the laws of the wisigoths or western-goths are in every passage intituled by the very latin word ( not the greek ) antiqua . and justinian himself seemeth to have had this distinction in his eye , when he called his later constitutions 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. novellas , that so they might be mark'd from those of old , which cedrinus in justinian's life calleth 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , leges antiquas . his second objection is , that it is cited out of the fourth council of orleans , and it is not there . this we have already answered , and shewed where it is . thirdly , he saith it forbiddeth hunting cum canibus & accipitribus , and none of these were there . it is strange , a keeper should go about to strike a deer , and not have his lyme-hound to draw after him . but the canon goeth further , canes ad venandum , aut accipitres , aut hujusmodi res habere non licet . where hujusmodi res seemeth to contain all instruments used in hunting . fourthly , voluptatis causa ; not recreationis or valetudinis , which the books say is permitted etiam episcopo . what his books say , i know not ; but my book saith thus : dic breviter , quod venari causa voluptatis est mortale peccatum , & in laico ; sed venari causa necessitatis vel indigentiae corporis non est mortale peccatum ; in clerico tamen potius prohibetur . but he adjoineth , in venatione , potius delectatio quam actus attenditur . atho . in othob . fol. . b. neither is there here any mention of recreatio , unless delectatio and it be all one ( as commonly we use it ) and then forbidden . besides , what action or recreation belonging to health is there , in letting off a cross-bow ; wherein neither head , hand nor foot , no , not the nimblest member of the body ( the eye ) stirreth all that while . fifthly , the canon hath , st saepius detentus fuerit , if he make a life or occupation of it , which his lordship did not . burchard saith detectus , and with more reason : and i suppose his lordship useth it very temperately : yet the apologist in his fifth section insinuateth , that his lordship doth it often . sixthly , whereas he saith that the canon speaketh against clamosa venatio , not quieta or modesta ; i find no such word or distinction in the canon : yet is there no doubt , that if the deer be not kill'd out of hand ; but in recovering him , there must be both clamor and venatio . thus he counteth the mouth of the canon to be stopt . yet because it is good to make sure work with so dangerous an object , now he setteth law upon law , the common against the canon or at least the statute , which indeed hath crack'd a great sort of canons . that by the statute of henry viii . . ca. . no canon is in force in england , which was not in use , or is contrary or derogatory to the laws or statutes of this realm , or to the prerogatives of the royal crown . of which sort ( he saith ) this is one , and gives his reasons : for in charta de foresta arch-bishops and bishops by name have liberty to hunt : and . ric. ii. ca. . a clergy-man who hath l. by the year , may keep grey-hounds to hunt. the name of charta de foresta ( and also of hunting ) is , clero lachrimabile nomen . for the first breach that ever was made into the freedom of clergy-men , and which gave passage to all that followed , rose from the occasion of clergy-mens hunting in forests : which henry ii. greatly discontented with , never rested , till by assent of the pope's legate hugo petro-leonis , he obtained a law in the twenty first year of his reign , an. dom. . to convent them therefore before secular judges , and there to punish them . but to our purpose : there is no contradiction ( as i take it ) between the canon de clerico venatore , and charta or statutum de foresta . the canon doth say , they shall not hunt ; and the statute doth not say they shall . the words of the statute ca. . are thus : an arch-bishop , bishop , earl , or baron coming to us upon our command and passing through our forest , liccat ei capere unam bestiam vel duas , per visum forestarii , si praesens fuerit : sin autem , faciat cornare , ne videatur furtum facere . here is no word of hunting ; but that they may take a deer ; and this they will say cannot be but either with dogs or engine , and so consequently by hunting . but the very words of charta de foresta seem to shew , that it was not meant , the bishop should be an huntsman , for that it admitteth him not to have so much skill in hunting as to wind an horn , tho' that by no law or canon be forbidden to him . and therefore saith not , corniat ipse , but faciat corniare , let him cause an horn to be blown , &c. i conceive the meaning to be , that the bishops and barons shall each of them take as they may ; the barons by hunting ( if they will ) in their own persons ; the bishops as they may , by the hands of their officers and servants . it is a common phrase in all old charters , that the bishops shall have sac and soc , toll and team , &c. i. e. cognisance of plea , suit of court , toll , and such other customs : shall we intend , that he must take these in his own person ? no ; it was not henry the third's meaning , when he granted the charter of the forest , to break the laws of the church : for at the same time in magna charta ca. . he granteth , that the church shall have omnia jura sua integra & libertates suas illaesas ; which could not possibly be , if by his charter he changed the canons of the church , especially in matters of doctrine and conscience : as , when the church teacheth that a clerk may not be a huntsman , for him to say that he shall be . doubtless , if he would , the clergy would not then accept it . in the person of a bishop there be three distinct faculties : his spiritual function , wherein he is a bishop ; his legal ability , wherein he is a lay-man and hath liberty to contract , &c. and his temporal dignity , wherein he is a baron and peer of the realm , and participateth their priviledges . i could put cases wherein every of these may be seen severed from the other ; but i should then wander from my matter . only , i present them thus anatomy'd , that it may appear what portion the church had in them , what the common-wealth , and what the king ; that so it may also the better appear how the laws both of the church and kingdom are to be applyed unto them respectively . when therefore the king granted temporal lands unto them ; tho' they took them as lay-barons , and in their temporal capacity , yet might they not otherwise use them than might stand with their spiritual function : no more than when he granted ecclesiastical possessions to a lay-man , the grantee might otherwise use them than as a lay-man . for example ; it was a common thing in old time , that the king granted churches to lay-men , by the name of ecclesiam de dale and ecclesiam de sale ; yet it was never intended that the grantee , tho' he had the churches to order and dispose , should ( contrary to his vocation ) meddle with the divine service , but present his clerk only . so in like manner , when the king granted to clergy-men , chaces , parks , and warrens ; it was not intended that ( contrary to the rules of their profession and laws of the church ) they should or might become hunters and foresters . my long stay upon this point , is a preparative to an answer to the next , which is the statute of ric. ii. being in the negative , that no priest nor other clerk , not advanced to l. a year , shall have or keep any greyhound , nor other dog to hunt ; nor they shall not use ferrets , hayes , nets , hare-pipes , nor cords , nor other engines , for to take and destroy deer , hares , nor conies , &c. upon pain of one years imprisonment . the statute ( i say ) is in the negative , and saith that none under l. a year shall keep ; but saith not in the affirmative , that it shall be lawful for them that have l. a year to keep , &c. i should therefore think , that this statute doth not discharge a priest ( having l. a year and using hunting ) against the canon-law : no more than the statute of vsury , forbidding a man to take above l. loan for an l , giveth him liberty to take that l. or doth discharge him against the canons of vsury . touching his inference , that linwood speaketh not one word against hunting simply by clergy-men , but against their using it in places restrained ; it is true , for the text of the canon led him no further ; being only de clerico , de transgressione forestae aut parci alicujus diffamato , and made to no other intent than to aggravate the censure of the ecclesiastical law , which before was not sharp enough against offenders in that kind . but johannes de athon ( as great a canonist and somewhat elder , whom linwood often citeth and relyeth upon as one well understanding the ecclesiastical constitutions and the laws of england ) hath apparently condemned it in the place by me recited . yet is it to be noted , that neither athon nor linwood intended to gloss upon all the constitutions of the church of england ; but athon only upon those of otho and othobon ; and linwood ( beginning where athon left ) upon those of stephen arch-bishop of canterbury and his successors . there are therefore a great number of canons and constitutions of the church of england , which neither of these canonists have either meddled with or so much as touched : as also there be many statutes in force , which are no where mentioned in any of the abridgements . but jo. de burgo ( another english canonist and chancellour of cambridge , who wrote in richard the second's time ) taketh notice of this canon , and that hunting was thereby forbidden to our clergy-men , as appeareth in his pupilla oculi part . . ca. . m . to go on . the apology saith , that the arch-bishop of canterbury had formerly more than twenty parks and chases , to use at his pleasure , and by charter hath free-warren in all his lands . habutsse , lugubre : it seemeth the wisdom of the latter times ( the more p●ty ▪ dissented from the former ; yet did not the former approve that bishops should use them at their pleasure , but as the laws and canons of the church permitted . for as they had many parks and warrens ; so had they many castles and fortresses , and might for their safety dwell in them : but as they might not be souldiers in the one , so might they not be huntsmen in the other . in like sort , the abbat and monks of st. alban's ( as mat. paris reporteth the case in an. . pa. . ) had free-warren at st. alban's , &c. by grant of the kings , and recovered damages against many that enter'd into the same and hunted : for the having of it was lawful , as appeareth in the clementines tit. de statu monast . § . porro a venatoribus . but it is there expresly forbidden , that either they should hunt in it themselves , or be present when others do hunt , or that they should keep canes venaticos aut infra monasteria seu domus quas inhabitant , aut eorum clausuras , pa. . radulphus de diceto in an. . saith , that the bishops of that time affected to get into their hands comitatus , vice-comitatus , vel castellarias ; counties , sheriffwicks , and constable-ships of castles ; but shall we think they either did or might use them in their own persons , as , with banners display'd to lead forth the souldiers of their county , or with sword and target to defend the walls of their castles , or with a white wand to collect the king's revenues , &c. it is true , that walter bishop of durham , having bought the county of northumberland of william the conquerour , would needs sit himself in the county-court ; but he paid dearly for it : for his country-men furiously slew him , even sitting there . matt. paris in an. . so hugh bishop of coventry exercised the sheriff's place , but was excommunicate for it , as contra dignitatem episc . and so acknowledged his error . dicet . in an. . but every one will say , it was a common thing in old time for bishops to be judges in secular courts . i confess it ; and think it godly and lawful as it was used at the first . for the bishop and the earl sat together in the county-court : the bishop as chancellor , to deliver dei rectum and populum do●ere ; the earl as secular judge , to deliver rectum seculi and populum coercere ; as is manifest by the laws of king edgar and others . but when the bishops began to supply both places , and to be meer judges of secular courts , then were they prohibited by many canons . and therefore roger bishop of salisbury being importuned by the king to be his justice ; would by no means accept it , till he had obtained dispensation , not only from his metropolitan the arch-bishop of canterbury , but from the pope himself , as dicetus affirmeth in an. . and no doubt but others of wisdom did the like . in those things therefore that bishops did against canons , we must take no example to follow them : for tho' their publick actions be manifest , yet their dispensations and matter of excuse is for the most part secret . neither doth every thing done against a canon produce irregularity , if some criminous mischance follow not thereon . for the record that relateth that the bishop of rochester was at his death to render to the arch-bishop of canterbury his kennel of hounds as a mortuary , and that the law takes notice of it for the king sede vacante , under the name of muta canum and mulctura : i must ( as they say in the law ) demand oyer of the record ; we shall otherwise spend many words in vain . but that dogs should be given for a mortuary is against all likelyhood . for a mortuary , is as an offering given ( by him that dieth ) unto the church , in recompence of his tithes forgotten ; and it is a plain text , deuter. . . non offeres mercedem prostibuli , nec pretium canis in domo domini . but if there be no other word to signify a kennel of hounds , than muta canum and mulctura , the exposition may be doubtful , tho' it come somewhat near it . freder . ii. emp. in the prologue to his second book de venatione , speaking of an hawks-mue , saith , domicula quae dicitur muta ; following the italian vulgar , which cometh à mutando , because the hawk doth there change her coat . and for the affinity between dogs and hawks , it may be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 transferred to a dog-kennel ; and whether to the hounds themselves or no , it is not much material . for , no doubt , they that may have parks and warrens , may have dogs and hounds for hunting : but every body that may have hounds may not use them themselves , as appeareth by that which i said before out of the clementines , and by the opinion of justice brudnel , with the rest of the judges , . henr. viii . fol. . where it is said , a man may keep hounds notwithstanding the statute of . ric. ii. but he must not hunt ; as he may keep apparel of cloth of gold , notwithstanding the statute of apparel , but he must not wear it . besides , religious persons in ancient times were driven to have dog-kennels for the king's hounds : for rad. niger in an. ..... saith , that king henry ii. abbates , hypodromos & canum custodes fecit . after all this , his lordship is defended with the perpetual use of hunting by bishops in their parks ; and by the particular examples of some eminent men his predecessors , and others . this point of use and example i have in a manner answered before ; speaking , as it fell in my way , of bishops being secular judges . one line serveth to level at them both : yet for further and more perspicuous resolution of the matter , see both the example and the use censured in the decret . . distinct . ca. . by pope nicholas , ad albinum archiepisc . alias aluinum . quemadmodum relatione fidelium nostris auribus intimatum est , quod lanfredus episcopus , qui & juvenis esse dicitur , venationi sit deditus ; quod vitium plurimos etiam de clericali catalogo , genere duntaxat germanos & gallos irreverenter implicat , verum iste ( si ita est ut audivimus ) merito juvenis dicitur , qui juvenilibus desideriis occupatus , nulla gravitate constringitur . et infra : nam ( ut beatus dicit hieronymus ) venatorem nunquam legimus sanctum . then blaming him also for being too familiar with his daughter , he saith , oportet ergo fraternitatem tuam synodale cum episcopis & suffraganeis tuis convocare concilium , & hunc salutaribus colloquiis episcopum convenire , atque illi pastorali authoritate praecipere quatenus ab omnium bestiarum vel volucrum venatione penitus alienus existat : or ( in short ) to excommunicate him . here he sheweth hunting to be used both by a bishop and by a multitude of clerks , ( plurimos . ) but neither the person and dignity of the one , not the multitude nor frequent use in the other , maketh the pope to abstain from condemning it . howbeit , they whose example the apologist alledgeth , little respected ( as i think ) the whole volume of canons . touching the record of the earl of arundel's excommunication for taking up the arch-bishop of canterbury's hounds coming into the earl's grounds to hunt ; and the arch-bishop's pleading that it was lawful for him to hunt in any forest of england whensoever he would , we must ( as we before said ) pray oyer of the record ; for parols font plea , and their certainty appears not here , nor what became of the issue : which , tho' it fell out to be found for the arch-bishop , yet perhaps it discharged him not against the canon . and well might he be as bold with the canon , as he was with the law. for it is directly against the law both of england and france , to excommunicate a peer of the realm without the king's assent : and therefore henry iii. was sore offended with the arch-bishop for this excommunication ; ( and the bishops of london and norwich were called in question for the like in henry the second s time ; as matthew paris reporteth , pa. . ) but because his case sways the cause to the ground ; i must dwell a little the longer upon it , to shew what became of it . the truth is , it was ended by comprise in the chappel at slyndon upon friday after the circumcision of our lord , . that is , . henr. iii. in this manner : quod idem archiepiscopus & successores sui semel in quolibet anno & non plus , cum transierint per dictam forestam ( i. e. de arundel cum una lesia de sex leporariis sine aliis canibus & sine arcu habeant unum cursum in eundo & alium in redeundo ; ita quod si capiant unam feram , illam habebunt ; si nihil capiant in illo cursu , nihil habebunt . si vero capiant plus quam unam feram , archiepiscopi qui pro tempore fuerint , habeant quam elegerint , & residuum habeant dictus dominus johannes & haeredes ejus , &c. then is it further awarded , that the said earl , his heirs , and assigns , shall yearly for ever pay unto the said arch-bishop and his successors , . bucks and . does , ( captas de fermysun as the record saith ) at times there appointed . and then followeth this close , which maketh all plain ; et actum est expresse in●●r partes de praecepto & ordinatione dictorum arbitratorum , quod dictae partes procurabunt confirmationem domini papae & domini regis super praesenti confirmatione . by this record it appeareth , that neither the earl could make this grant without licence from the king , ( for that all forests are the kings , and no subject can have them otherwise than in custody ) nor the arch-bishop could safely use the priviledge of hunting without dispensation from the pope : and tho ●yet find not where the one was obtain'd from the pope , yet i find where the other was granted from the king ; and namely from edward the first in the d. year of his reign ; where all the award and composition beforesaid , is ( by way of inspeximus ) recited and confirmed . but the composition for the bucks and does , was after in edw. the third's time released by the arch-bishop simon islip , having taken for the same . marks ; as witness antiqq . britann . ca. . and it seemeth further by this record , that the arch-bishops of canterbury had not at that time dispensation from the pope , to hunt where they listed in any forest of england ; for then should he not have needed special dispensation in this case . but howsoever the dispensation or confirmation was hereupon obtain ; it is apparent that it stretched no further than to hunt with grey-hounds ; for the bow is expresly forbidden and excepted . it may be , some will extend the word confirmation , to be meant of some right of hunting , which the arch-bishop ( upon this arbitrement ) was to disinherit his church of : which i leave to the judgement of lawyers . for it may contain both ; tho' i never saw any precedent of the popes in that kind for so small a matter : but of the other kind , we have before made mention of one to roger bishop of salisbury , and a multitude of others are to be produc d. again , if they have a dispensation for hunting , yet it hath some limitation either for the place or the manner ; which his lordship ( if he justify under that ) must shew particularly . to come now at last to to the last point of the apologie , drawn from the particular example of arch-bishop cranmer ; who , in the description of his life ( britannicarum antiqq . ca. . ) is set forth to hunt , shoot , and ride a great or stirring horse with notable activity , even when he was arch-bishop , and in the words recited by the apologist . but these be exercises of war , not of religion ; fit for barons not for bishops ; who in ancient time , following the example of our saviour and his apostles , walked on foot , as appeareth by bede , eccl. hist . l. . ca. . & lib. . ca. . and beginning to ride , used here in england mares , as bede also witnesseth , lib. . ca. . in other places mules , not horses ; for bellum haec armenta minantur , as not only the poet saith , but as the scripture also , prov. . ult . equus paratur ad diem belli . and such belike , did this arch-bishop cranmer mount upon and mannage , as the words imply , ut in famulatu suo non fuerit quisquam qui in generosum equum salire , ac tractare elegantius — potuisset . besides , the shooting here mentioned seemeth not to be the long-bowe , which stirreth the body and is profitable to health , but that deadly engine ( which imagineth mischief as a law ) the cross-bowe , whose force a man cannot mitigate as in other weapons , and is properly numbred amongst the instruments of war ; and therefore by a multitude of canons prohibited to clergy-men , so that they may not use them pro justitia exercenda ( as appeareth by the constit . of othob . tit. ) de clericis arma portan . nor equitantes per loca periculosa , as it is in the gloss upon the decret . of gratian p. . where the text is , clerici arma portantes & usurarii excommunicentur . but i have gone the length of my tedder , i mean as far as the apologie leadeth me ; and therefore now manum de tabula . the case of this reverend and most worthy person deserveth great commiseration and tender handling : for who can prevent such unexpected casualties ? yet may the consequence prove so mischievous both to himself and those that are to receive their consecration from him , as of necessity it must be carefully look'd into and provided for . let me remember an ancient precedent , even in one of his own predecessors , stigand , arch-bishop of canterbury in the time of the conquest , who , because he had not canonically received his consecration , but from the hands of pope benedict ( who stood excommunicate and sacris interdictus ) was not only deprived himself by authority of a council , but also the bishops and abbots which had taken their consecration from him . therefore the bishops of wells and hereford foreseeing that evil ; to make all clear , fetch their consecration at rome from pope nicholas : vitabant enim ( saith flor. wigorn. in an. . ) à stigando qui tunc archiepiscopatui doroberniae praesidebat , ordinari : quia noverant illum non canonice pallium suscepisse . it is good to follow the counsel of gratian in the like matter : consultius est in hujusmodi dubio abstinere quam celebrare , ca. . . but because we are fallen into a case , wherein perhaps some extraordinary consecration may be required ; let me also relate a strange consecration used in the entrance of the reign of henry i. an. . where eadmere a monk of canterbury being elected by the clergy and people of scotland to be bishop of st. andrews , with the great good liking of king alexander and the nobility . yet by reason of some discontentments the same king had conceived against the arch-bishop of york , within whose province scotland then was , he would by no means agree that eadmere should take his consecration from that arch-bishop ; and after much consultation how then it might otherwise be performed , it was at last agreed , that the staff of the bishoprick should be solemnly laid upon the altar , and that eadmere taking it from thence , should receive it as deliver'd him from god himself : which accordingly was done . this calleth to my mind another of like nature , somewhat more ancient : where wulstan , the good bishop of worcester , both resigned his bishoprick by laying the staff thereof upon the shrine of st. edward the confessor ( by the agreement of a council holden under lanfranc ) and in like manner received the same again from thence , in the presence of king william , the arch-bishop lanfranc , and many others ; not without some miracle , as matthew paris writeth it in an. . these as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . and thus , in this matter of shooting , if i have done as the proverb saith , shot like a gentleman , that is fair , tho far off , it sufficeth . i humbly crave pardon . . octob. . recep . apolog. ● . octob. praeced . some letters and instruments , concerning the killing of hawkins by arch-bishop abbot . a letter written by his majesty to the lord keeper , the bishops of london , winton , rochester , st. davids , and exeter , sir henry hobart kt. chief justice of the common-pleas , mr. justice dodderidge , sir henry martin , and mr. doctor steward , or any six of them , whereof the lord keeper , the bishops of london , winton , and st. davids , to be four . it is not unknown unto you what happened this last summer unfortunately to our right trusty and our right well-beloved counsellour the lord arch-bishop of canterbury ; who shooting at a deer with a cross-bow in bramsil-park , did with that shoot casually give the keeper a wound , whereof he died . which accident , tho it might have happened to any other man , yet because his eminent rank and function in the church , hath ( as we are informed ) ministred occasion of some doubts , as making the case different in his person , in respect of the scandal ( as is supposed : ) we therefore being desirous ( as it is fit we should ) to be satisfied therein , and reposing especial trust in your learning and judgement ; have made choice of you to inform vs concerning the nature of this case : and do therefore require you to take it presently into your consideration , and the scandal that may have risen thereupon : and to certify vs , what in your judgements the same may amount unto , either to an irregularity or otherwise . and lastly , what means may be found to redress the same ( if need be ) of all which points we shall expect to hear your reports , with what diligence and expedition you possibly may . dated at theobalds . oct. . a letter from the lord keeper to arch-bishop abbot , intimating the reception of his majesty's letter . may it please your grace . my lord of winchester , my lord hobart , sir john dodderidge , dr. martin , and my self , having met this afternoon about a letter sent unto us ( together with some others ) under his majesty's signet ; and finding the contents thereof to require from us some information of the nature of an unfortunate act , which doth referr unto your grace : we thought our selves ty'd in all justice and respect , to send your grace ( as i do here inclosed ) a copy of his majesty's letter : and to let your grace understand , that we are ready to receive from your grace ( in writing ) all the qualifying circumstance , of the fact ( if any such there be ) omitted in this letter ; that we may be better grounded to deliver our opinions ( as is desired ) concerning the nature of this unlucky accident . and we have appointed two of the clock in the afternoon upon saturday next , to be the time ; and this colledge of westminster , to be the place of our meeting , to receive what information of the fact , your grace shall 〈…〉 unto us , and ceasing to be further troublesome , i shall 〈…〉 your grace's poor friend and servant jo. lane. & c. s. westminst . coll. 〈…〉 of october ● . the arch-bishop's answer . my very good lords , i thank you for sending me the copy of his majesty's letter , which concerneth the ●nhappy 〈…〉 that befell me in hampshire . i here inclosed send unto your 〈◊〉 a ●opy of the verdict given up by the jurors unto the coroner : as also a 〈…〉 of some circumstances of this fact , which are not expressed in that verdict . 〈◊〉 the first ▪ being already upon oath , it needeth not ( as i conceive , under your lor●s●●● ( favour ) any further verification : and for the other , such of the particular● a● are not included in the verdict , there are in readiness those who will testi●i● the ●ame . and for the better expedition of the whole business , if your 〈…〉 all on●● 〈◊〉 what are the special points in law to be insisted upon ; i will , 〈…〉 ●ll , 〈◊〉 sp●●● , cause my council to be ready to attend you : by whom i desire to give your lordships satisfaction . and so commending my love and service to your lordships , and forbearing to be further troublesome , i rest your lordships very loving friend g. cant. lambeth , oct. . . a note of my lord keepers at the bottom of the letter . to this letter we answered , that we had no warrant to hear counsel ; no● could we in justice hear any , unless the credit of the church and honour of the king , had their council likewise on the other side . jo. linc. & c. s. the opinion of the bishops and others to whom the consideration of arch-bishop abbot ▪ s case was referred ; in a letter to his majesty . may ●t please your majesty . whereas we receiv'd a command from your majesty under your royal 〈◊〉 to deliver our opinions unto your majesty , whether an irregularity or 〈◊〉 might ar●se by this unfortunate act , which god permitted to come to pass by ●h●●and of the most reverend father in god the lord arch-bishop of canterbury , ●●ooting in a cross-bowe at a deer in bramsil-park ; as also of the cure and 〈…〉 the same irregularity , in case it should be so adjudgd . 〈◊〉 do in all 〈…〉 humility return this account unto your majesty : 〈…〉 the first , 〈…〉 be contracted by this act , in the person of my lord 〈…〉 gr●ater part of our number could assent or agree : because 〈…〉 and 〈◊〉 themselves are so general and so ready to entertain distinctions and limitations , the doctors and glosses so differing , inferences and disputes so peculiar to every man's conceit and apprehension , authorities of canonists and casuists so opposite in this very case in hand ; that we could not return unto your majesty any unanimous resolution or opinion in the same . for the second , whether any scandal may arise out of this act ? we are of opinion , a scandal may be taken by the weak at home and the malitious abroad ; tho' most of us believe there was no scandal given by the said right reverend father . for the third , we are all agreed , not only that a restitution or dispensation may be granted by your majesty , either immediately under the great seal , or ( which most of us in all humility represent unto your majesty ) by the hands of some clergy-men , delegated by your majesty for that purpose , or what other way your majesty shall be pleas'd to extend that favour . but withal , we are of opinion , that it is most sitting for the said reverend father , both in regard of his person and the honour of the church , to sue unto your most gracious majesty for the said dispensation in majorem cautelam , si qua forte sit irregularitas . all which , craving pardon for our weakness , we do in all humbleness submit to the decision of your majesties most profound and incomparable wisdom . jo. linc. elect . c. s. geo. london . — la. winton . — jo. roffens . guil. menevens . elect . — valen. exon. elect . henr. hobart . jo. doddridge . h. marten . ny . stywarde . cir. di . . nov. . dispensatio cum georgio archiepiscopo cantuariensi , super irregularitate . reverendissimo in christo patri georgio providentia divina cantuariensi archiepiscopo , totius angliae primati & metropolitano , johannes lincoln . georgius london . lancelotus winton . samuel norwicens . thomas coven . & lich. arthurus bathon . & wellen. nicolaus eliensis & georgius cicestrensis permissione divina respective episcopi de provincia cantuar. salutem & gratiam in domino sempiternam . recipimus literas commissionales à serenissimo in christo principe ac domino nostro domino jacobo dei gratia angliae , scotiae , franciae & hiberniae rege , fidei defensore , &c. sub magno sigillo angliae confectas & nobis directas ; quarum tenor sequitur in haec verba : jacobus dei gratia angliae , scotiae , franciae , & hiberniae rex , fidei defensor , &c. reverendo in christo patri & perdilecto & perquam fideli consiliario nostro johanni episcopo lincoln . custodi magni sigilli nostri angliae , ac reverendo in christo patri georgio episcopo london . ac reverendo in christo patri ac perdilecto & perquam fideli consiliario nostro lanceloto episcopo winton . necnon reverendis in christo patribus samueli norwicen . thomae coven . & lichen . nicholao elien . arthuro bathon . & wellen. & georgio cicestren . respective episcopis ▪ salutem & gratiam . humili nobis supplicatione exposuit reverendissimus in christo pater , perdilectus & per fidelis consiliarius noster georgius cantuar. archiepiscopus , quod cum nuper in parco quodam vocato bramzil-park apud bramzil in comitatu nostro southamton . per honorandum virum ejusdem parci dominum rogatus & invitatus damam sagitta figere destinaret , debita adhibita diligentia ne quid inde periculi cuiquam eveniret ; forte tamen accidit ut sagitta ab eo emissa & in feram directa , in quendam petrum hawkins adhunc parci praedicti custodem , improvide & temere se periculo ictus sagittae exponentem , & per locum ubi a praefato archiepiscopo conspici non potuit cum imp●tu transcurrentem incideret , eique brachiam sauciaret ; ex quo quidem vuln●re ▪ ●ra unius horae spacium expiraba● : & quamvis propter hujusmodi homicidium casuale , nulla praefati archiepiscopi culpa sed ipsius occisi temeritate contig●ns , idem reverendissimus pater bona fretus conscientia , se nullam omnino irregularitatem incurrisse , persuasissimum habeat ; provida tamen animi circumspec●ione , & ut omnis infirmorum mentibus scrupulus eximatur , secum a nobis super omni & omnimoda irregularitate & irregularitatis nota aut suspicione , si quam praemissorum ratione contraxisse forsitan aliquibus videri possit , ad cautelam & ex superabundanti dispensari humiliter supplicavit : sciatis igitur quod nos petitionis hujusmodi vim & ●fficaciam reg●o animo & pro affectu ponderantes , & de veritate praemissorum solicita indagatione certiores facti , & ut piam reverendissimi patris intention●m ●ac in re s●quamur , & ad abundatiorem cautelam , persidelis consiliarii nostri 〈◊〉 ●ue de e●cl●si● & republica m●r●●i prae●ulis statum , famam , & dignitatem , nostri etiam patrocinii minime teneri & firmare dignoscamur , ad praesentem venimus dispositionem : vobisque vel aliquibus sex vestrum , quorum vos praefat . johannem lincoln . georgium london . lancelotum winton . & samuelem norwicen . respective episcopos , quatuor esse volumus , de quorum etiam side , judicio , & industria plurimum confidimus , mandamus & de gratia nostra speciali & ex auctoritate nostra regia suprema & ecclesiastica qua fungimur , pro nobis , haeredibus , & successoribus nostris damus & plenam concedimus facultatem & potestatem per praesentes , quatenus vos vel aliqui sex vestrum ; quorum vos praefatos , johannem lincoln . georgium london . lancelotum winton . & samuelem norwicen . respective episcopos , quatuor esse volumus , cum praefato reverendissimo patre super omni & omnimod . juris vel facti defectu , censura , sive poena aliqua canonica & ecclesiastica , praesertim vero irregularitate omni seu irregularitatis nota ( si quae forsitan ratione praemissorum contracta fuit ) vel quibusdam contracta esse videantur , utque in susceptis ordinibus & jurisdictionibus secundum concreditam sibi ratione ordinis & archiepiscopatus sui potestatem libere ministrare , frui , exercere , & gaudere valeat , ad majorem cautelam dispensetis , ac caetera omnia & singula quae ad statum , commodum , & honorem praefati reverendissimi patris conservandum & corroborandum in hoc parte necessaria fuerint seu quomodolibet opportuna faciatis , & dispensationem hujusmodi , caeteraque sic ut praefertur per vos aut aliquos sex vestrum , quorum vos praefatas , johannem lincoln . georgium london . lancelotum winton . & samuelem norwicen . respective episcopos , quatuor esse volumus , facienda in debita juris forma concepta , & inscripta , reducta , sigillisque vestris seu sigillo aliquo authentico munita , praefato archiopiscopo tradere non differatis . quam quidem dispensationem , caeteraque sic ut praefertur per vos aut aliquos sex vestrum , quorum vos praefatos , johannem lincoln . georgium london . lancelotum winton . & samuelem norwicen . respective episcopos , quatuor esse volumus , pagenda sub magno insuper sigillo nostro angliae confirmari volumus , & super hiis praefati magni sigilli nostri custodi aliisque cancellariae nostrae ministris quibuscunque expresse mandamus , & plenam tenore praesentium concedimus potestatem . teste meipso apud westmon . vicesimo secundo die novembris , anno regni nostri angliae , franciae , & hiberniae , decimo nono & scotiae lv. secundum tenorem & exigentiam literarum commissionalium praerecitatarum , & ad eximendum omnem scrupulum ab infirmorum mentibus , si quis forsitan sit aut fuerit in ea parte conceptus . nos praedicti , johannes lincoln . georgius london . lancelotus winton . samuel norwicen . thomas coven . & lichfeld . arthurus bathon . & wellen. richardus elien . & georgius cicestrens . respective episcopi , nomine primitus invocato ac deum patrem oculis solum habentes , & considerantes atque pro certo habentes quod dicta venatio cui per te data erat opera , quando dictum casuale homicidium ( te nihil tale suspicante ) accidebat , erat modesta , decens , & quieta , & quod debita per se adhibita erat diligentia in dicta venatione ad praecavendum ne quid periculi alicui inde eveniret , tecum praefato georgio archiepiscopo cantuariensi super omni irregularitate & irregularitatis nota , si quam forsitan ratione casualis homicidii sive mortis praefati petri hawkins incurristi vel aliquibus incurrisse videaris ad omnem & qualemcunque juris effectum dispensamus ; teque praefatum georgium archiepiscopum cantuariensem ac personam tuam ab omnibus & singulis inhabilitatibus , suspensionibus , irregularitatibus , aliisque poenis , impedimentis , censuris , & coercionibus quibuscunque ecclesiasticis sive canonicis ( si quam forsitan ratione praemissorum aut eorum alicujus incurristi aut aliquibus incurrisse videaris ) ad omnem & qualemcunque juris effectum liberamus ac tenore praesentium pro liberato haberi decernimus & pronunciamus : quemque defectum , labem , notam , sive maculam , ( si quam forsitan ratione praemissorum aut eorum alicujus contraxisti aut aliquibus contraxisse videaris , penitus abolemus ac pro abolitis haberi decernimus & pronunciamus : teque etiam praefatum georgium archiepiscopum cantuariensem ex superabundanti & ad majorem cautelam , rehabilitamus & restituimus ad omnem & qualemcunque juris effectum : et ut in susceptis ordinibus & archiepiscopatu praedicto , ac in omnibus & singulis jurisdictionibus , privilegiis , praeeminentiis , praerogativis , dignitatibus , alque aliis rebus quibuscunque , aliqu● modo ad dictum archiepiscopatum spectantibus & pertinentibus libere ministrare valeas , concedimus & indulgemus , perinde ac si praedictum casuale homicidium commissum non fuisset ; canonibus , legibus , decretis , ordinationibus , & constitutionibus ecclesiasticis quibuscunque contrariis ( si quae sint in ca parte contraria ) in aliquo non obstantibus . in cujus rei testimonium , sigilla nostra episcopalia hisce praesentibus apponi fecimus . dat. duodecimo die decembris , anno domini millesimo sexcentesimo vicesimo primo . teste rege apud westmon . . die decembris anno regni regis jacobi , &c. xix . & scotiae quinquagesimo quinto . of the original of testaments and wills , and of their probate , to whom it anciently belong'd . the word testament or any other for a last will , is not found in all the scripture before christ's time . and tho' it be common in the vulgar translation , yet st. jerome noteth , that it is according to the hebrew to signify pactum or f●dus , and so the geneva translation expresseth it . altho' therefore there be many passages in the old testament which seem to be meant of wills , and so expounded by interpreters : as where it is said that achitophel put his house in order and hanged himself . and where hezekiah is commanded from god to put his house in order for he should die . yet there appeareth no law nor form of wills ; and the declarations that jacob , moses , joshua , david , &c. made at the times of their death were matter of consolation and counsel , effata novissima or ultima elogia , but not testaments as we use the word . sigonius in his book of jewish antiquities maketh no mention of their wills , nor do i yet find any in josephus . it is true , that s. paul maketh express mention of them , but not till the romans had conquer'd the jews , and imposed their law upon them . then s. paul speaketh of them according to the roman law , not judaical . of all this i desire further advertisement . it is observed that the ancient greeks , who ( as josephus testifieth ) fetch'd their laws from the jews , had not any . tacitus reporteth of the germans in his time , which was about . years after christ , successores sui cuique liberi & nullum testamentum . si liberi non sunt , proximus gradus in possessione , fratres , patruus , avunculus with their descendants according to our law. it is therefore very probable , that our saxon ancestors , coming out of germany , observed for a long time the custom of their country , and that they had not the use of making wills ; as neither had their brethren the normans . the custom therefore of making wills among the german and northern nations was taken up by little and little from the romans in some places after one manner , in some after another , as it is to be seen in france it self . when the roman emperors grew potent in germany , and the german princes came to be emperors , the germans generally forsook their ancient custom spoken of by tacitus , and received the roman law. the rest of the angli that remained in germany and came not over into england , made a law about the year of our lord . that it should be lawful for a free-man to dispose his inheritance by will as he pleased . the normans kept the old custom in part , and left it in the other part . they suffered him that had neither wife nor children ( if he were twenty year old ) to make a will and bequeath his moveable goods as he listed , either to or from his kindred . so likewise if he were married and his wife dead . having children he could dispose but of a third part . and so might man or woman of . years old . but land which they ( according to the civilians ) called immoveable goods , no man * amongst them might dispose of by his will. in some other parts of france as in champain , they disposed both moveable and immoveable , that is , goods and lands , according to the civil law. the civil law custom they called lex romana , the other lex barbara . our saxon ancestors by direction of their clergy , who chiefly affected the roman manners , seem also to have observed the civil law in making of wills both in substance for disposing lands and goods , and much in the form and ceremony of making and publishing the same . as carolus magnus in france disposed the lands of his great dominions between his three sons , lewis , pepin , and charles , by his last will. so by his example king ethelwulfus here divided his lands by his will between his three sons , aethelbald , aethelred , and aelfred . king aelfred in the like manner disposed both his lands and goods by his will now extant . and many other saxons by their wills in writing , bequeathed lands and goods with their bodies unto monasteries . that herein they followed the civil law is manifest by the saxon will of birtrick and elf●uith his wife , made about the year . ( according to the manner of that time ) by them both jointly . first it seemeth to be made in calatis comitiis , that is , in an assembly called together for that purpose . then whereas the civil law requireth necessarily vii . witnesses , here were a dozen , least it might be defective in that one was a woman , and some other under age or bond-men . the disposition of lands as well as of goods , is by the civil law , and therefore the course is more solemn . which also this well observeth both for disposing land and goods and also for the solemnity of the course . but most evidently it appeareth to be according to the civil law , in that the man and his wife joyn both together in it , which was neither in use nor resolv'd to be good till the novel constitution of theodosius and valentinian did authorise it . after this constitution that kind of testament became so common , that marculfus , who lived about the year . hath left unto us an especial formula or precedent of it as it was then in use in france . and saith in it , that it was ut romanae legis decrevit authoritas . and concludeth it with an imprecation or curse against such as should violate it , as doth also the will of birtrick . with the like solemnity of witnesses ( eight in number besides a lady ) did elfere another saxon before birtrick , bequeath the town or land of snodland to the church of s. andrews . of the probate of wills or testaments . after the will was thus composed , the roman use was to have the testator and witnesses to subscribe it , then binding it up close with thred , to seal it with their seals , which upon producing of it they or many of them were to view and acknowledge before the praetor or judge . and then rupto lino the thred being cut , it was opened and published , and copies of it delivered to the parties under a publick seal , the original remaining in the publick register . the ancient manner of opening , publishing , or as we call it , proving of wills before the magister census , is described by john fabri . but nearer to our purpose is that in the formulae of marculfus of a will proved in a city or corporation before the magistrate there , or of a town before the defensor plebis . for a will by the civil law and the use of our neighbour nations , might be proved before divers officers and in divers places . we already mentioned the praetor , but justiman the emperor ordained that in rome none should be opened save by the magister census . in the provinces by a constitution of theodosius , the rectores provinciarum , and where the access to them was uneasy , there donations and wills made in cities and corporations might be exhibited and proved before magistratus municipales the magistrates there ; in other towns before the defensor plebis . according to these two last are the formulae of marculfus and another in brissonius . from these constitutions of the emperors , grew the various manner of probate of wills amongst us in ancient time . with the magister census being proper only to the city of rome we have nothing to do . but as we were once a province of the empire , so our ancestors received and held the manner of provinces . for the rectores provinciarum , which with us were the earls of the counties , had the cognisance or probation of wills as shall by and by appear . so also had divers of our magistratus municipales , magistrates of cities and corporations : as that which i am best acquainted with my neighbours of lenn episcopi , now kings lynn in norfolk . and instead of the defensores plebis in an ordinary town , the lord of the town or mannor both had , and hath that priviledge with us in divers places . all this while there is no mention of any ecclesiastical person , which we must now look into . the fourth council of carthage ordained , that episcopus tuitionem testamentorum non suscipiat , and this canon gratian has taken into the body of the canon law , whereto the gloss saith : tuitionem , id est , apertionem , sc . coram eo non apperiantur , sed coram magistro census . c. de testam . l. consulta . and tho' it addeth vel dicatur quod non sit advocatus ad tuendum testamentum , yet that seemeth an idle interpretation : for tho' epiphanius maketh mention that bishops in old time judged causes , yet it was never known that they pleaded causes . but it is apparent , that the clergy-men in those days took upon them to prove wills even in justinian's time , who flourished an. dom. . and therefore he prohibited them not only by a constitution , but also by a mulct of . pound weight of gold , saying absurdum est namque si promiscuis actibus rerum turbentur officia , & alii creditum alius subtrahat ; ac praecipue clericis quibus opprobrium est , si peritos se velint disceptationum esse forensium ostendere . but here we see that the clergy even in those days , had set their foot upon the business , and i suppose that since that time they never pulled it wholly out again . it is like the eastern nations adhering to the empire did observe it . but the western being torn from it by the northern nations saxons , goths and normans , took and left as they thought good . re●●ardus king of the western goths about the year . tho' he retained the manner of the civil law in making wills , yet he ordained that they should be publish ▪ d by a priest as formerly they had been . his succ●ssor chindavin●us about an. . making a law about a military will ordained , that it should be examined by the bishop and earl , and ratified by the hand of a priest and the earl. as the northern nations i speak of the goths , the saxons , and normans , were of neighbour and affinity in their habitation , language , and original , so were they also in their laws and manners . therefore as the goths trusted to their priests with the passing of wills , so did the normans , their custom and law was that tout testament doit estre passe par devant le curè , ou vicaire , notaire ou tabellion en la presence de daux temotn●s idoines d● xx. ans accomplis & non legataires . that all testaments shall pass before the curate or vicar , &c. where the commentary noteth , that it must be the curate or vicar of the same parish , where the testator dwelleth . and that notary hath been adjudged to be a notary apostolick or ecclesiastical . so that the business was then with them wholly in the hands of the clergy . this ancient norman use liveth to this day in many towns of england . the parson of castle rising in norfolk hath the probat of testaments in that town . and so hath the parson of rydon , and the parson of north-wotton in north-wotton . to go back to our saxon ancestors . i see they held a kind of 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or similitude of laws with their brethren the goths and normans . and tho' i find no positive constitution among them in this point , yet ab actis & judicatis ( the supporters of the common law it self ) we may perceive what their custom and law was . elf●re who lived before the year . having made his will , did afterward publish the same before odo the arch-bishop of canterbury , elfsy the priest of croydon , and many other . birtrick and his wife in no long time after declared their will at mepham before elfstane bishop of rochester , wine the priest , and divers other . see a ms. law of king alured the great , who flourished an. . de eo qu● terram testam●ntalem habet , quam ei par●ntes sui dimiserunt : ponimus ne illam extra cognationem suam ●●ttere possit , si scriptum intersit testamenti , & testes quod ●orum prohibitto fuerit , qui ha●c imprimis acquisiverint & ipsorum qui dederint ei n● hoc possit , & hoc in regis & episcopi testimonio recitetur coram parentela sua . it is said in the civil law that the declaration of a testament before the prince omnium testamentorum solennitatem superat . here the bishop is joined with the king in cognisance of the testament by the copulative & , but mr. lambard ( tho' i confess it agreeth not with the saxon ) maketh it in the disjunctive , coram rege aut episcopo , as if it might be before either of them . the saxon is on cyninges & bisceopes geƿitnysse , in r●gis & episcopi testimonio . be it one or the other it cometh much to a reckning , for the presence of the king was then represented in the county by the person of the earl of the county , as it is this day in his bench by the person of his judges . and the earl and bishop sitting together in the court of the county did ( as if the king and the bishop had been there ) hear jointly , not only the causes of wills spoken of in this law , wherein the bishop had special interest , but other also that came before them : and therefore in those days the extent of the earl's county and the bishop's diocess had but one limit . to this purpose is the law of king edgar cap. . and the like of canutus cap. . comitatus bis in anno congregatur nisi plus necesse sit , & in illo comitatu sint episcopus & comes qui ostendant populo & justitiam dei & rectitudines seculi . the saxon is , & ðaere beon ðaere scyre biscop & se ealdorman . let the shire bishop be there and the alderman , so then they called the earl. thus both ecclesiastical and secular causes were both decided in the county court , where , by the canons of the church the ecclesiastical causes were first determined , and then the secular . and many laws and constitutions there be to keep good correspondency between the bishop and the earl or alderman . and as both kind of justice were administred in the county court , so were they also in the hundred court ; in which course they continued in both courts 'till the very time of the conquest , as it seemeth , and almost all his time after . but about the eighteenth year of his regn , by a common council of the arch-bishops , bishops , abbots , and princes of the kingdom , ( which we now call a parliament ) he ordained , as appeareth in a charter of his then granted to remigius bishop of lincoln , vt nullus episcopus vel archidiaconus de legibus episcopalibus amplius in hundred placita teneat , nec causam quae ad regimen animarum pertinet ad judicium secularium omnium adducant , sed quicunque secundum episcopales leges de quacunque causa vel culpa interpellatus fuerit , ad locum quem ad hoc episcopus ei elegerit & nominaverit veniat , ibique de causa vel culpa sua respondeat & non secundum hundred , sed secundum canones & episcopales leges , rectum deo & episcopo suo faciat , &c. what ensued upon this , and how the bishop and earl divided their causes and jurisdiction appeareth not ; that of wills belonged either wholly to the earl ( as rector provinciae ) by the constitution of theodosius , or as much to the earl as to the bishop , by the laws of king edgar and canutus . but the subsequent use must inform us what was then done upon it . and thereby it seemeth that all went wholly to the bishop and clergy , and that the saxon custom was changed , and the norman introduced : and that the name of court christian or ecclesiastical , sprung not up or was heard of till after this division . for now the devising of lands by will after the saxon manner was left , and the goods themselves could not be bequeathed , but according to the use of normandy . a third part must remain to the wife , a third part to the heir ( or children ) and a third part the husband might dispose by his will. the norman manner appeareth at large by their custumary , and the english at that time briefly toucht by glanvil . but let the will and the matter thereof be what it would . it seemeth the insinuation , probate , and cognisance of it , belonged generally now unto the bishop and clergy , tho' i must confess it be hard to find manifest proof thereof in those ancient days of the conqueror and his sons . we must therefore discover as we can , and very material ( in my understanding ) to that purpose is the testimony which i find in the ancient laws of scotland , compos'd by the commandment of david their king , who lived long in the time of king henry i. son of the conqueror , and of king stephen the conqueror grand-child . for those laws have that similitude with ours of that time delivered by glanvil , as that in effect they be much what the same , mutatis mutandis , &c. and very often totidem verbis with glanvil . it is there said under the title de causis ad ecclesiam spectantibus , &c. pla●●tum de dotibus , & de testamentis ad forum ecclesiasticum pertinet . dower was then thought to belong to the ecclesiastical court , because it was a dependency of marriages , which doth belong to that court. and the rule was , qui est judex in principali est judex in acc●ssorio . but to our purpose it is plain , that testaments were then de ●ure ecclesiastico in scotland , and doubtless even then also in england . for not long after ( in henry ii's time ) glanvil himself doth testifie as much , saying , that where the testator nameth no executor , his next of kin possunt se ad hoc faciendum ingerere , and might have a writt to the sheriff ( in the form there recited ) against them , that detained any of the goods : and then addeth , si quis autem auctoritate hujus brevis conventus dixerit contra testamentum , soil . quod non suit rationabiliter factum , vel quod res petita non fuerit , ita ut dicitur legata , tun● quidem placitum illud in curia christianitatis audiri debet & terminari , &c. at this time ecclesiastical jurisdiction was grown to that exorbitant height and latitude , that they neither doubted to convent the king himself to their synod , as henry bishop of winchester and legate did king stephen to the synod of winchester , nor to put him to corporal punishment under the name of pennance , as the monks of canterbury did king henry ii. by whipping him . in ordinary matters therefore , no doubt but they extended their jurisdiction very far . yet all this while was not the decretum gratiani come into the world. in henry iii. time , bracton expresseth wills and testaments to belong to the ecclesiastical jurisdiction , as glanvil had done before in henry ii. and the scottish laws in henry i. time . si de testamento oriatur contentio in foro ecclesiastico debet placitum terminari , quia de causa testamentaria ( sicut nec de causa matrimoniali ) curia regis non se intromittit , &c. i am now come to the lists of the modern common law , and i dare venter no further . finis . icenia : sive norfolciae descriptio topographica . ab henrico spelmanno equ . aur. icenia . iceni nostri , quibus nixi sunt initiis , & unde nomen asciverint ; nec proditum reor à veteribus , nec rimatum feliciter à recentioribus . caesar ( hospes ) cenimagnos vocat : ptolemaeus ( altero velut orbe dissitus ) simenos : tacitus , praefecti britanniae gener , & diuturnus in gallia belgica magistratus , certiusque igitur insequendus , icenos . mitto , qui tigenos ; sine dubio perperam . non à rege aliquo nuncupatos , cum camdeno censeo : sed nec ut ille à forma loci , quam britanni ( inquit ) iken , id est , cuneum vocant . certe ptolomaei tabula & comperta ratio , quadrangulam potius justam , quam cuneatam faciunt . mallem ego ab ise fluvio celeberrimo , britannis ichen , totam regionem brachiis longe divaricatis transeuntem , deducendos . sic apud asiaticos , indi ab indo ; apud graecos , maeones à maeonia ; apud scythas , alani ab alano ; apud germanos , alsati ab alsa ; apud gallos , sequani à sequana , fluminibus . sic in ipsa anglia , derbienses á derwent ; lancastrenses à lan , alias lon fluvio , ut ipse agnoscit camdenus noster ; northumbrenses ab humbro ; & wiltoniae comitatus à guillo , i. e. willo fluvio , ut perhibet wigorniensis . nec obest ( s ) in ( c ) migratio , cum in voce conservetur sonus , & ptolemaeo litera , quam alii tamen in ( g ) mutant . soliti autem sunt britanni pro graeco σ , ch . ponere , ut ichen pro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , soch pro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. sue , buch pro 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 i. e. bove . fluvii nomen ab ise , alias iside , gentium dea , sortitum videatur . priscis , quippe in more fuit , sylvas , montes , fluvios numinibus consecrare , eorumque appellare nominibus . britannos vero prae diis aliis cererem & proserpinam , ( quae & isis dicitur ) inferna coluisse numina strabo perhibet . hinc infernales sui ritus , & nocturna sacra . nox diem ducit ; & per noctes , dierum seriem ; per lunas , mensium ; per hyemes , annorum numerant . sic hodie à seven-night pro vii . diebus ; à fort-night , quasi fourteen-night , pro xiv . diebus dicimus . et majores nostri xx. xxx . xl. winters , pro totidem annis recitabant . hyemem autem ideo consecrabant infernalibus , quod rerum semina sub hoc tempore ab eisdem existimabant conservari . hinc & in fluviis nostris celeberrimis , crebrum isis nomen , alias caelibis , ut brigantum isis ; isis icenorum ; & isis dobunorum : alias conjugis , ut tham-isis , is-urium , & hujusmodi . sed iceniae videamus terminos ; quibus includit camdenus norfolciam , suffolciam , cantabrigiae comitatum , & huntingtoniae . quod ut non probetur facile , ita sat difficile est ad refellendum . ptolemaeus simenos ponit inter catieuchlanos & metarim aestum , versus boream ; trinobantes versus austrum ; dobunos & coritanos versus occidentem ; & germanicum oceanum versus orientem . sed quibus hi destituuntur invicem finibus , non exponit . camdenus coritanos locat , ubi ptolemaeus inversis sedibus catieuchlanos ; mediterraneos scil . ubi hic maritimos , & è contra . auctorem non laudat ; propter viri tamen eminentiam inficias non ibo ; ne crassa versans caligine , falsis illudar imaginibus . haud tamen censeam priscos illos britanniae populos adeo certis & definitis limitibus disterminatos , cum scriptores antiqui tractum potius quo versati sunt obscuriores populi , quam tractuum limites designaverint . et qui fieri possit , ut hod●●rnis comitatuum finibus dividerent●● olim b●●●anni veteres , cum comitatus ipsi a saxonibus postea , & plerunque ab aluredo non ultra 〈…〉 anni● , dim●tati sint ? reor equidem priscarum gentium terminos , 〈◊〉 barbararum , instar magni aestuarii , nunc expansiores fuisse , nunc contractio●●● , juxta potentiam & deliquium suorum principum . sic londinum ipsum , tot●●s insulae metropolin , alias a veteribus in essexia , alias in middl●s●xia vidimus collocatam . eversa britannia , divisaque a victoribus romanis in quinque ditiones citra vallum quod instituit hadrianus , restituitque postmodum severus imperator ( sell . in britanniam primam , britanniam secundam , ●laviam caesariensem , valentiam , & maximam caesariensem ) cessit icenorum hic tractus ( ut camdeno pla●ui● ) in ●laviam caesariensem . celebre vero antiquitatis monumentum , quod notitia utriusque imp●rii nuncupatur , in — vi●ariorum britanniarum insulam ponens ; britanniam secundam locat ( consulto dixeris , an fortu●●o ) ubi ptolemaeus trinobantes & simenos . sed ejectis tandem britannis , cum reliquiis romanorum , descendit flaviae nomen , pariter & iceniae ad inferos , vocaturque a saxonibus tractus iste east-angle i. anglia orientalis , quod gens anglorum cum saxonibus e germania venientium , suam hic obtinuislent sedem , parte alia circa humbrum incolente . quibus tamen limitibus claudebatur , cum nec adhuc in comitatus distincta ●sset insula , satis videatur ambigendum , dimensionem licet satis habeamus explicatam . in antiquissima enim descriptione omnium praediarum , ex australi parte humbri fluminis , east-engl perhibetur . hidas demetiri . hidam beda familiam vocat , & vulgus alias pro . & . acris terrae aestimavit . nec semper tamen definite ; sed normanni postea caru●atam appellarunt , scriptores medii seculi coloniam , & romani olim villam rusticam . cum ●●●o aluredus , rex ( sine invidia dixerim ) inter principes optimos laudatissimus , angliam totam ad priscam germanorum politiam in shiras , quas plerique comitatus ; centurias ( quas hundreda jam & wapentachia ) & decanias ( quas fri●ergas vulgo & tithingas appellamus ) divisisset ; concluditur east-anglorum ditio trium shirarum extensione , norfolciae , suffolciae , & cantabrigiae . non dico , comitatuum , quod ad unum omnes sub hoc seculo pertinuer● comitatum ; siquidem ut ad unum episcopatum . comitatus enim plures saepe obtinuit shiras , & iisdem quibus episcopatus finiebatur terminis ; quod episcopus & comes simul considentes , populo jus dicerent ; hic humanum ille vero divinum . haec , pulsis britannis , inter advenas saxones conditio fuit ; donec erectam in monarchiam aluredus , angliam totam in certas portiones dissecuit ; quae a facto , shires hodie asque appellantur . qua partitione , licet antiquos britannorum limites in quibusdam observasse non est dubium ; in aliis tamen longius discessisse certum est . ideoque — sectiones britannicis respondere non credendae sunt . deposita autem controversia ( ut certa nostro argumento s●●na statuatu● ) concedamus hodiernos norfolciae , suffolciae , cantabrigiae , & huntingtoniae tractus , icenorum ambitu contineri . redacta heptarchia in monarchiam , canutus magnus angliae , daniae , norwegiae , aliarumque gentium borealium rex , monarchiam hanc in tetrarchiae speciem disposuit , viz. west-saxoniae regimen , sibimet ; east-angliam ( cujus duces vlfkettelum patrem & athelwardum filium in essenduni praelio trucidavera● ▪ quaeque ja●● norsol●iam & suffolciam complecti dicitur ) turkillo comiti ; m●rciam seu partem mediterraneam , edrico principi perfido ; & northumbriam , henrico designavit . sic sit east-anglia , anglo-dania ; & cum novo populo novas suscipit leges , quae a conditoribus dene-la 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. lex danorum , appellatus . prioribus igitur duabus ( i. e. ●est-saxon-lag & mereen-lag ) accedens , jam tertia 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 constituit , è quibus cum edvardus confessor unam ex omnibus deduxisset , communemque inde appellasset ; gulielmus i. à danis & norwegis oriundus , danorum illam profundiorem & honestiorem aliis fuisse contendens , eam omnino suscitaverat , si vehementissimis magnatum deprecationibus non fuisset remoratus . ab hoc vero tempore ita claruerunt norfolcienses pietatis studio & splendidis ingeniis ; ut hinc in legum scientia primas obtinentes , quolibet aevo , regni tribunalia scientissimis judicibus , subsellia argutissimis jurisconsultis ornarunt : illinc rerum coelestium ardore conciti plus minus jam . ecclesias in hoc tractu , & ultro . coenobia ( quot in simili spatio nusquam invenies ) condiderunt . vivit sat honeste ipsa plebecula ; cujus tamen rusticitatem famoso derisit carmine ( quod aliquando vidimus ) sub johannis regis exitu monachus quidam petroburgensis , sic exordiens : edictum exiit augusto caesare qui mittens nuncios jussit describere mundi provincias summo cum opere . erat vero tunc quidam familiaris ejus norfolcianus , jo. de s. omero , cujus nominis familia in well juxta wisbech sedem habuit , & foemina haerede ad beaupreos transiit . ille monachi vesaniam indignatus , patrias edit vindicias , numeros reddens numeris , & rhythmos rhythmis : opusculum inscribit norfolcianae descriptionis impugnationem . sic inchoatur . edictum fingitur factum à caesare . sub rege autem johanne novas suscepisse periclitabatur norfolcia & suffolcia incolas . has enim provincias ipse , ut dicebat , per chartam suam hugoni de bones dederat , qui cum . millia armatorum in auxilium ejus comparasset , una omnes à pelago sunt absorpti , & cadaver hugonis cum mersorum multitudine tam foeminarum & infantium quam virorum , gernemutae ejectum . multitudo aërem ipsum inficiens morbum & pestem provincialibus intulit ; quos ut viva statuerat extinguere , & sedes hic sibi perpetuas comparare , voti quodammodo compos efficitur . e quatuor his regiunculis ; mediterraneae sunt omnino huntingtoniensis & cantabrigiensis : maritimae , pro dimidio , norfolcia & suffolcia . coelum omnibus velut unum , mite satis & tenue ; sed maritimis refrigerantius . solum unicuique proprium ; sed mediterrane is pinguius . huntingtonia pascuis aptior ; cantabrigia cereri ; suffolcia lacte scatet & caseo ; norfolcia vellere est nobilior . mediterraneae tantum ex humo vivunt . maritimae autem , cum thetim habent vicinam , penu praeterea illic funguntur ditissima . huntingtonia , leviter montana est : cantabrigia , tota campestris : suffolcia , sylvis consita : norfolcia , omnium particeps . singularum fines in paludibus coëunt ; ubi commune omnibus flumen unum est , amplum , piscosum , & navigationi commodissimum . ousam dicunt ; sed corrupte ( ut mihi videtur ) pro isidem . e paludibus damnum saepe omnes ferunt ; lucrum tamen annuò non exiguum ; praeter ingentem vim piscium & aquatilium . fluvius iste mediterraneis multis regiunculis tanquam via lactea est ; qua merces & alia vitae necessaria copiose inferunt & deferunt : ejusque in ostio , instar clavis , lenna sedet . aliud flumen celebre huntingtonia non habet , nec cantabrigia : habent vere tum suffolcia ; tum norfolcia , quae & caeteras , rivulorum multitudine , antecellit . succedit proxima suffolcia . indigere videtur cantabrigia ; sed magis tamen huntingtonia . metallum nulla effodit , nec carbones : ne structiles quidem lapides ; si non norfolcia . eliensis insula in paludibus sedet ; contineturque sub cantabrigiae appellatione . marslandia ( quae ex nomine cognoscitur , palustre solum ) . metit● jugera , inter vii . villas distributa . aggere cingitur elatiori , ab australi plaga recentium undarum impetum , à boreali marinarum , cohibente . eoum latus fortius rodit isis fluvius ; occiduum , furens à vulturno aestuarium . incolis hinc perpetua formido & periculum ; sed in aggere communis salus & fiducia . singulas tamen villas singuli claudunt aggeres alii , ne submersa una pereant caetera . bis sub nostra memoria generale passae sunt diluvium , aquarum dulcium an. dom. — ; salsarum , an. . qua ( ut mihi inter alios regio diplomate designatos ) pagensium juramento innotuit , damnum supra . libras illatum esse . aggerem quippe non ut alias trajecit pelagus ; sed transiliit altius toto pede ; quod ne indies faciat miraculo prohibetur & divina misericordia . octogenis enim cubitis supra britanniam intumescere aestus , pythias massiliensis auctor est . o bone deus , qui mare nobis ut israelitis olim , murum dedit in perpetuum suae bonitatis testimonium ! solum hie omnino pingue , sed robustum : pascuis igitur atque pecore laetum , magis quam in cerere . fossis & elicibus quibus centum & undeni incumbunt latericii pontes & ponticuli vermiculatim dissectum ; cum ad educendum inimicum imb●em , tum ad inducendum expetitum . fontem enim nullum habet neque rivulum : n●● talpam alit nec soricam . in marslandiae parte extima , versus occidentem , sitae sunt , walsoka , id est , immunitas juxta aggerem : waltona , id est , villa ad aggerem : & walpola , quod est , gurges prope aggerem , wall enim à vallo ductum , aggerem significat , & per translationem , murum . pertinebant olim priores duae ad abbatem ramesiensem . waltona scilicet , ex dono albredae viduae eustachii de scelleia sub henrico i. walpola vero ad ecclesiam eliensem , natalitiis clara s. goderici heremitae , cujus vitam & miracula parisiensis plurime decantavit . in viciniis jacent terrington & st. maries ; hoc familiae chervillorum qui de capra-villa olim dicebantur , & pro crista capram emblema nominis detulere antiquum patrimonium . sed defunctis nuper henrico cheruil equite , & filia sua , in cobbarum scribitur haereditatem . illud howardorum , qui hoc olim tractu maxime claruere , vetus sedes , & ad ingentia conservatrix felicissima . splendida etiam hic ecclesia cujus aliquando rector edmundus gundevill , collegium sui nominis exstruxit cantabrigiae sub an. dom. . adjacet tylney , veteris utique tilneiorum familiae radix ; quae per filiam & haeredem frederici tilney equitis amplissimi , in howardianam stirpem tertio hinc seculo confluens , auctiorem eam multo reddidit . hic se expandit insignis area , quae à planicie nuncupatur tylney-smeeth , pinguis adeo & luxurians ut paduana pascua videatur superasse . cum enim vii . villarum majora animalia quotidie recipit compascentia ; oves tamen praeterea plus minus . alere perhibetur ; nulla excedens extensione bis mille passus . tuentur eum indigenae velut aras & focos , fabellamque recitant longa petitam vetustate de hikifrico ( nescio quo ) haii illius instar in scotorum chronicis qui civium suorum dedignatus fuga , aratrum quod agebat , solvit ; arreptoque temone furibundus insiliit in hostes , victoriamque ademit exultantibus . sic cum de agri istius finibus acriter olim dimicatum esset inter fundi dominum & villarum incolas , nec valerent hi adversus eum consistere ; cedentibus occurrit hikifrikus , axemque excutiens à curru quem agebat , eo vice gladii usus ; rota , clypei ; invasores repulit ad ipsos quibus nunc funguntur terminos . ostendunt in coemiterio tilniensi , sepulchrum sui pugilis , axem cum rota insculptum exhibens . nec procul wigenhall , antiquae etiam cognomen stirpis . magna hujus pars ante aliquot secula ita aquis opprimebatur , ut neglecta generaliter occupantibus permitteretur . multi igitur sedes sibi illic elaborantes , totam pene in aridum redegerunt ; metuentesque jam tum ejici , in obsequium potentiorum se tradidere , censum & tenuram patrocinii causa agnoscentes ; ut antiqua refert inquisitio . extra aggeris partem illam , quam the podike vocant , soil . inter isidem fluvium & municipium eliensis episcopi , quod à situ in occidentali glarea wisebeach dicitur ( wise enim saxonice , ut in wisegothorum nomine , occidentale sonat ) well habetur , id est puteus . cum enim circumclusa jam marslandia , aquarum impediretur dilatatio , huc se recipientes ut in puteum , superficiem late opprimebant . nobilissima fit interea piscatura , quam ailwinus dux east-angliae , & totius angliae aldermannus , cognatus regis edgari , & fundator coenobii ramesiensis ( circiter an. dom. . ) eidem coenobio contulit , cum mansis & toftis piscatorum , ( ut verbis utar ramesiensis codicis . ) mansit ( ut videtur ) sub eadem conditione , usque ad aetatem regis gulielmi i. qui ecclesiae illi confirmans praedia , concedo ( inquit ) in welles . homines piscatores , singulis annis . milliaria anguillarum ( i. e. singulis monachis singula milliaria ) ibidem reddentes . emersit postea in villam celebrem , partim in insula eliensi , partim in norfolcia ( fluvio dividente ) sitam ; foro , nundinis , & uberrimis privilegiis sub abbatibus ramesiae honestatam , dimidiique hundredi fretam dignitate . hic & beau-preovum seu de bello prato , sedes opulenta ; praesertim cum excisis monasteriis ramesiense hic dominium comparassent : quod cum reliquo suo patrimonio edmundus beaupre dorotheae transtulit , quam ex winteri aliquando suscepit conjuge . nuptaque ea viro insigni roberto bell , qui capitalis baro scaccarii effectus est , à nepote ex filio corundem roberto bell , splendidi ingenii equite , possidetur . haud procul , in lincolniensi tractu ( nam confinia lambens , memorabile quod occurrit non praeteream ) tydd conspicitur . vicus pauper , sed cujus aliquando rector ( quem personam vocant ) nicolaus breakespeare à roma in norwegiam missus , eam praedicando ad fidem convertit christianam : & ab eugenio [ iii. ] albanus ideo constitutus est episcopus cardinalis ; creatusque est ipse post eugenium [ & anastasium ] an. dom. . papa hadrianus iv. consulum hic ademit potestatem ; quae orbem olim , urbem hactenus administrasset ; sibi retinens & successoribus . copiosissime in hoc & palustri reliqua regione , [ effoditur ] fomes terrea ; quae ( à torff , antiquo rege danico , ut ..... prodit inventore ) torff , etiam hodie appellantur ; & latine turbae à crassioris labii forensibus . mallem vero à sax. tyrf quod cespitem notat , ( v. gloss . nost . ) ni inventorem à re inventa dictum opinatus fueris . jam in norfolciae continentem transeundus est undosus noster plemmyrium , h. e. isis fluvius ; qui semper equidem non est transeundus . cum enim in duobus aequinoctiis maxime tumeant marini aestus , & potissimum ( ut plinius notat ) sub autumnali plenilunio ; hunc interdum è mari praevolat adeo insanus undae cumulus , qui se fluvii undis obviis non apponit , sed earum superficiem ita rapide superlabitur , ut velocitate equitantem superet , & furore quaelibet occurrentia mergat & evertat . venientem fugiunt naviculae , & ipsa aquatica volatilia cum ingenti strepitu . fluvii accolae hoc à feritate the eagar nuncupant , matthaeus parisiensis ( si recte intellexerim ) hygram : aliud reor quam graecorum 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , sed non aliud quam undarum ingens cumulus , quem è lato collectum mari in angustias fluvii subdito detrudit aestus . in latiori enim ejus parte non ita saevit . taceo copiosam fluvii piscaturam ; de eo tamen dicam , ut de pergusa lacu ovidius — non illo plura caister carmina cygnorum labentibus audit in undis . trajecto iside , in centuriam clacklose pervenitur ; quae cum multis in eadem villis ad ramesiense olim spectabat monasterium ; hodie ad amplissimum equitem johannem har● ; velut unum illius abbatiae coh●r●dum . ad ponti● transitum primum obest downham-market , a montano sita nomen habens ▪ doun en●m mons est , ham habitatio : sed in membranis regiis downeham-hithe , i. e. portus , appellatur . mercatum illis antiquissimum ; nam ab edwardo confessore confirmatum reperi . aspicit prope in aequali situ domini sui aedes amplas & exim●as , annum circiter — . a nicholao hare , jurisperito ad stow-bardolfe extructas , sed lat●fundiis ●gregie ditatas beneficio hugonis hare , juris item peri●i & fratris nicolai , qui coelebs excedens , . lib. & eo amplius dicto joanni ex ricardo fratre pronepoti , & tantundem hugo● , dommo colera●● in hibernia ex johanne fratre nepoti , testamento dedit ; me in eodem supravisore inter alios descripto . copiosissime in palustri hic tractu effodiuntur focales cespites , quos turffs appellant , danorum nobis beneficium . a torfo enim ipsorum rege ( qui floruit an. dom. — ) inventos referunt ; nomenque tenuisse inventoris . sub●st wallington , quod ● coningesbeis cum uxore transiit ad franciscum gaudy , capitalem nuper civilium placitorum justitiarium , qui congesta h●●● plurima dominia , nepti suae e filia comiti warwici desponsatae , transmisit omnia . ●iliam aut●m duxerat gulielmus hatton , cancellarii ● sorore nepos . paulum hinc in euro-notum ad paludum marginem , sita est west-deerham villula , cunis memoranda huberti walter , filii harvei walter , & fratris theobaldi walter , hiberniae pincernae , a quo illustrissima pincernarum familia ▪ quam butl●r vocant ) & ormondiae comites ( ut testatur charta fundationis coenob●● de woney in hibernia ) originem ducunt . hic hubertus sub ranulpho de glanvilla , illustri illo totius angliae justitiario enutritus , evasit archiepiscopus cantuariae , cancellarius regis ricardi i. legatus papae celest●i iv. & tot●us etiam angliae justitiarius . miraberis tot in unum collatos magistratus , praesertim si recte intellexeris quanti sub hoc seculo munus fuerit justitiarii , potestate scil . omnes regni magistratus , dignitate omnes superantis proceres . post regem , primus universam complectebatur solus rem judiciariam ; officium capitalis justitiarii regii tribunalis , capitalis justitiarii civilium placitorum , capitalis baronis scaccarii , & in plerisque magistri pup●llorum . disposuit de thesauro regis , & in regni arduis elato peragebat omnia supercilio . in absentia regis ( quae sub istis seculis crebro accidit ) regni custos & pro-rex salutatur . tantos edidit villa haec obscura partus ; qui tamen coactus est ab innocentio iv. fasces istos seculares deponere , & aratro christi totus indulgere . ad cunarum vero decus , coenobium in west-deereham condidit : acceptique memor beneficii , instituit , ut pro anima ranulphi de glanvilla , patroni sui , preces hic perpetuo funderentur . sed descriptis ab henrico viii . in fiscum monasteriis , thomas deereham ut à nomine ●edem compararet , anno . ejusdem regis hoc mercatus est ; possidetque hod●e post cr●bram haeredum mutationem , e quinto filio nepos ejus homonymus , equ●s probus . progredienti mox occurrit ox●burgh , dictum ( ut suspicor ) pro ouse-burgh , quod ad isem fluvium , quem ouse appellant , sit appositum . sic oxeforde , pro ouse-forde . nomen antiquitatem loquitur & eminentiam . urbes enim quas britanni ●strias , saxones nostri & german● burghs vocant ( ut & recte notat littletonu●● a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , pro turri . haud tamen aio , burgos apud nos omnes , ●●●sse ol●● urbes : nam vox alias munimen quodlibet , & interdum montem no●at , a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ab assurgendo in altum [ instar turris . ] oxburgus igitur , si clarum aliquando oppidum non exstiterit , locum tamen munitum fuisse non est dubitandum . hoc idem generaliter statuo de villis omnibus , in quorum nomine burgh deprehenditur . sedes antique fuit weilandorum ; è qua familia thomas w●ilandus , capitalis justitiarius civilium placitorum , . edw. i. in exilium mittitur à parliamento . postea venit ad tuddenhamos , & deinde ( haeredis eorum nuptiis ) ad bedingfeildos , claros aliquando in aula regia , & florentes hodie latifundiis . duxerat quippe edmundus bedingfeildus sororem thomae tuddenhami equitis amplissimi ; & ex regni vicissitudine fortunarum suarum dispendium metuentes , pactum ineunt obsignatis tabulis , quod bedingfeildus signa sequeretur edouardi iv. tuddenhamus vero henrici vi. & si belli alea edouardo cederet , bedingfeildus gratiam regis tuddenhamo compararet ; sin é contra tuddenhamus id praestaret bedingfeildo . victoriam autem obtinente edouardo iv. bedingfeildus à rege impetrat tuddenhami patrimonium , sed tuddenhamus ipse capite plectitur ; clam hoc omne ; nam utrique aliter capitale . hinc processit versus oxburgum , quarto distantem lapide ; velut burgos conjunctura fossa alia hodie locis aliquibus complanata ; at centuriam clacklose , qua à fluviis non cingebatur , muniens & disterminans . transiens autem juxta bicham-well , appellatur bicham-dich ; & devenit terminus libertatum ramesiensis ecclesiae ex parte clacklos ( ut newmarket-dich libertatum s. ethelredae ad coenobium s. edmundi buriensis pertinentium . ) sic enim charta henr. i. sect. . sciatis me concessisse & confirmasse ecclesiae s. benedict . de ramesia , &c. socam , sacam — & omnes libertates & omnia placita ad coronam meam pertinentia apud bancastre & ringsted & apud clacos-hundred & dimid . cum . socomannis ad hundredum pertinentibus , scilicet infra bicham-dich & apud forum de dunham , quod pertinet ad winebodesham . socomanni dicti sunt coloni , qui domino suo rem expediunt frumentariam : & cum in coenobio ramesiensi . essent monachi , qui totidem anguillarum vescerentur milliariis , ut in well supra memoravimus , hic singuli singulis suppeditantur socomannis , cererem ministrantibus , quatuor abbati reservatis . quinto hinc lapide , in acclivi solo swafham conspicitur ; mercatu nobilis , quem à rege ..... obtinuit . aërem exhibet à laudatissimo medico laudatissimum . splendidam item ecclesiam , cujus insulam borealem pedaneus condidit aginator . descenditur hinc ad castle-acre , i. e. castellum in agro ; quod è resurgente monte late prospicit adjacentia . prisca hic sedes altera comitum warrenniae ; quorum antecessor willelmus de warrenna forestarius regis gulielmi conquestoris , & gulielmus de albeneiaco pincerna ejus , sortes adeo luculentas in occidua tulerunt norfolciae parte , cum normannis divideretur , ut nulla pene villa quae ab episcopo aliquo vel monasterio non possideretur , quin in alterius eorum ditionem cessit . testantur hoc antiqui libri feodales , qui alterutrum faciunt cujusque pene villae capitalem dominum . ad radicem castelli ( quod rudera tantum nunc ostendit ) gulielmus de warenna comes surregiae , an. dom. . condidit prioratum in honorem beatae virginis mariae , cellam vero futuram statuit lewensi monasterio , quod in sussexia pater ejus gulielmus instituerat . hic me monet locus , ut cum prudentia junctam [ eorum ] pietatem memorem , qui non minus animae saluti quam corporis consulentes , spiritualibus se militibus contra hostes spirituales , aeque ac secularibus contra seculares munierunt . vix enim reperitur primaria sedes alicujus magnatis , quae castello suo non subjunxit coenobium . claruit & contiguis west-acre eximio monasterio . castelli pomoerium & utriusque moenia monasterii perlabitur fluviolus elegans , nar ( quod aliis commune est nomen ) mihi ut videtur appellatus . nam in procursu statim occurrit narford villula , quasi narris vadum ; & subinde narburgh , quasi burgus seu castrum ad narrem : cui belle convenit quod in ligurinis canitur , meliori subdita caelo castra locat , gelidas vicini naris ad undas . dictum de narnia , oppido italiae , cui nar fluvius interluens nomen indidit ; & tyberi conjungitur : exemploque monitus ego , villas has nostras narniam advadum , & narniam ad burgum appellabo . quod de narburgh prodiderunt incerti senes , ego posteris non refundam . nec his fidem mendicabo , quae johannes bramis thetfordensis monachus , circa aevum henrici iv. ( ut scriptura codicis mihi suggerit ) in historia waldei regis hujus tractus , decantavit . saepe tamen ejus nititur auctoritate jo. catus , in antiquitate cantabrigiensis academiae , & ab eodem succrevisse lumen mihi aliquando , non negaverim . laborare cum fateor normannorum & gallorum vitio , quo romani suos deturparunt , fictitia veris commiscentes . nerburgum resert , civitatem fuisse sub aevo uter pendragonis , qui rex britanniae floruit an. dom. . comiti cuidam okenardo subditam . eam à waldeo fortiter obsessam , defendisse strenue septem mensibus okenardum ; noctuque saepe exsilientem hostium multos interfecisse : & florentium quendam waldeo dilectissimum truculenter vulnerasse ; waldeum facto gravius irritantem : qui vindictae acriter jam incumbens , okenardum ad extremas adegit angustias . fractum igitur , à seneschallo suo admonitum fuisse ut se fugae traderet : st enim ( inquit senescallus ) te rex waldeus in manibus poterit habere , te ut latronem faciet interire . igitur cum rex supervenerit , fugies de civitate ista , & nos castellum istud custodiemus , mittemusque ad waldeum , & vitam nobis & membra obtinebimus ab eo , priusquam trademus illud in manus illius . okenardus igitur , nocte superveniente , equo ascenso , egressus est ; venit & londonias ad uther , &c. senescallus autem de salute pactus , civitatem reddit , & waldens protinus delevit eam . haec & plura brainis . rerum illic antique gestarum , testimonium adfert ipse locus . sepimentum vetus militare , ubi ( si forte uspiam ) castellum okenardi . saxones burgum vocant , & a narburgo usque ad oxburgum velut burgos conjunctura protenta olim fossa militaris , hodie licet locis aliquot complanata . adde quod dum clemens spelman eques , . abhinc annis , hortum novum sub radice burgi moliretur , multa humana ossa cum armorum partibus aliquot sunt effossa . longe autem ante normannorum adventum , inducto aratro ; illud civitatis exhalavit dignitatem . de ea enim , ut de villula rusticana , sic liber angliae censualis , qui domesdei appellatur , sub titulis norff. roger. & hundred . de grenehow : nereburgh tenuit aelwius tempore regis edwardi confessoris , modo r. vicarius terrae pro manerio . tunc [ erant ibidem ] . villani , & post . modo similiter . tunc & semper . bordarii ; modo tres . tunc & post in dominio . carucatas [ terrae ; ] modo . aelwius iste videtur fuisse danus , ut plerique sub hoc aevo norfolcienses ; ejectus autem à rogero supradicto , puta bigoto normanno , cui amplam in hoc tractu partem gulielmus conquestor elargitus est . r. vicarius terrae ( uti censeo ) fuit robertus , aut rogerus de narburgh , qui rogeri vice hoc manerio fruitur , & splendidae narburgorum familiae ( qui à bigotis ipsum acceperunt , ut castrum suum norwicense feodali jure tuerentur ) initium dedit . deficiente vero sub henrico vi. prole mascula ela filia gulielmi de narburgh shouldamo primum , & secundis nuptiis henrico spelman collocatur , e quorum filio juniori johanne spelman , secundo justitiario regii tribunalis , valde ( ut fitz-herbert testatur ) perito in lege , johannes atnepos narburgo potitur . a narburgh crebra ludens vertigine , ad marham & pentney , claram utramque suo monialium coenobio tendit fluviolus . deinde ad shouldham coenobio item ornatam , & exhausta propemodum antiqua familia shouldhamorum , aquilam auream in coelo ceruleo gestantium . mox allabitur wormgey & middleton , castello & coenobio monialium aliquando insignem , ad barones de scales , & postea ad comites oxoniae ex nuptiis spectantem . illam castello item & coenobio decoratam , & à [ willielmo ] de warrenna primo comite surriae , ad bardolphos clarissimos barones deductum . jam ad lennum properans narra fluvius , domino suo isidi conjungitur ▪ qui congunum fluvium ex parte alia suscipiens , insignem in compitis stationem oppido insigni expedivit . dici autem len ( nam corrupte lyn ) à britannico ●hyn pro stagno aut diffusis aquis , si vox eo traheretur ( ut camdenus voluit ) non assentior . saxonicum plane existimo , & alias praedium , alias feodum significare . sic apud germanos hodie fanelhen , praedium feu feodum baronis ; & len-episcopi idem plane quod praedium episcopi . contrahitur etiam vox saxonibus nostris non tam praedium significare , quam praedium ecclesiasticum ; quod in aliarum villarum nominibus saepius deprehenderis , & britannis ipsis ( si hoc malueris ) omnino similiter . illis enim ( si mihi non imponant ) ter-llen significat terram ecclesiae , vel ecclesiasticorum . labitur & vir optimus pede altero . nam hoc dictum opinatur lennum episcopi ; illud in adversa ripa , ( vulgo old-len ) lennum regis : cum len-regis idem sit à tempore henrici viii . quod eausque len episcopi . permutante enim rege cum episcopo norwicensi monasterium s. benedicti de hulmo , & terras plurimas , pro terris & dominiis episcopatus sui ; len inter alia ad regem transiit , & jam inde nomen ( ut oportuit ) in lenn regis commutavit . glauci forte & diomedis permutatio ; recte vero si ariolar , sol eatenus alium non vidit lenni dominum quam episcopum east-anglorum . illic primarium ejus municipium , illic sedes altera , illic cuneum . hoc in mint-len , illa in contiguo gey-wood . magnam illic & primariam ecclesiam s. margaretae dicatam sub gulielmo rufo struxit herbertus de losinga , qui episcopatum transtulit de thetfordia in norwicum . praetoem dedit rex johannes ; à joanne graio , episcopo norwicensi , villae domino ( cum regem hic lautissime excepisset ) exoratus . regis tamen non officialem fore sed episcopi ; jurandumque novum quotannis in curia seu praetorio episcopi gaywodensi , ubi aulam & egregiam molem praesul iste suscitabat . episcopo igitur in omnibus subaudiens , homo episcopi nuncupatus est . largitur rex praeterea splendida privilegia , & à latere ( ut ferunt ) gladium suum ; sed quo nomen ejus magis celebrant quam in aliis omnibus munificentiis , cyphum ex argento egregium , interius deauratum , & exterius encausto ( quod miraberis ) insolito , costisque ex auro solido illustratum . piaculum ducunt merum non lectissimum ex hoc haurire : & hauriunt quidem , non libant ; caduntque interea cypho plures quam ipso gladio ( dicam cum martiali : hic scyphus est in quo misceri jussit amicis largius henricides , & bibit ipse merum ) quem ostendunt hodie , & à latere regis johannis traditum perhibent , majori praeferendum : ego vero ut credam non adducor . non enim regis fuit , sed episcopi municipium ; nec majorem statuit rex johannes sed praepositum , quem henricus iii. in majorem commutavit , cum lenni cives in insula eliensi partes ejus contra pr●scriptos barones , fidelius multo quam feliciter [ tuebantur ] & in charta regis johannis qua id privilegii concederetur , nulla gladii mentio . certe henrici viii . donum fuit , cum villam consecutus esset ab episcopo . novis enim eam ornans privilegiis , & burgenses mutavit in aldermannos ; & gladium , ( expressis in charta verbis ) majori concessit praeferendum . testatur ipsius gladii in capulo inscriptio . dominium villae cum censu , vectigali & theolonio ad episcopos spectabat ; sed theolonii tertiam partem comites arundelii jure castri sui de risinge vendicabant . hanc cum aliquando rogerus de monte alto , baro eximius , & jam castri dominus à lennensibus postulasset ; moeniis atque carcere interclusum tenent , donec relaxasset jus suum , juramentoque confirmasset , se nunquam super hoc aut inficias iturum , aut apud regem conquesturum . longae extant rei ambages in fisci schedis , anno ..... edw. ii. sed & in ipsum municipii sui dominum , norwicensem episcopum , cervicem adeo erexerunt , ut jura aliquot quae super eis habuit dominii ratione , pauperibus risingae burgensibus ( velut in ludibrium & conculcationem ) elocavit . incentivum prodere videtur haec charta ; quam ab alia pariter denotanda supposuimus : w. dei gratia episcopus norwicensis , dilectis & fidelibus suis johanni de bedeford . gilb. fil . warin . & omnibus aliis probis hominibus suis lenn . excepto eadmundo de wasingham majore nostro & fautoribus suis , salutem & dei benedictionem . sciatis quod cum nuper in die sti. stephani venissent ad nos apud norwicum dictum eadmundus angerus de rising & quatuor alii burgenses tam ex parte nostra quam ex parte sua , villam nostram de lenn peterent ad firmam sicut prius ; nos habito cum pluribus viris sapientibus consilio , tandem optulimus eis ut ipsi eadmundus angerus & duo alii ditiores villae reciperent villam illam ad firmam , viz. tali modo quod neminem talliarent , nec pauperes gravarent , nec alicui injuriam facerent . quod quidem penitus refutaverunt , & willielmum de pinkebek ut ballivum nostrum receperunt cum gratiarum actione . et super hoc audivimus , quod ( nescimus quorum ducti consilio ) ipsum willielmum ut ballivum admittere recusantes ingressum domorum nostrarum & bothae nostrae denegaverunt eidem . et ideo vobis mandamus quod in fide qua nobis tenemini , eidem willielmo & ballivo nostro sitis intendentes , & eidem ingressum & seisinam domorum nostrarum , gwyldhallae , & bothae nostrae habere faciatis sine omni dilatione , ut fidelitatem & discretionem vestram merito debeamus commendare . datum apud thefford iii. kalend. januar. pontisicatus nostri anno iv. esculentis & poculentis ita a natura accommodatum , ut penarium cereris atque bacchi videatur . ex parte enim ejus orientali tanta incumbit vis frumenti , ovium , cuniculorum , & campestrium alatilium ; & ex parte occidentali , casei , butyri , boum , cygnorum , & palustrium volatilium ; in viciniis , piscium hinc marinorum illinc sluvialium & recentium ; ut vix in tota britannia , forte & europa , in consimili circuitu tanta habeatur eduliorum diversorum copia . lenno per gaywodiam ( de qua diximus ) exeunti ashwicken-thoresbei prostat , domicilium dixerim an latibulum , nescio ; sed splendido cinctum patrimonio , domino satis dispari dominatum . in recto quem faciunt angulo isis & congunus fluvii , e palustri solo assurgit , nomen inde deferens , rising ; & egesto ex immani fossae colle arduo in gyrum dato , castro insuper coronatur . fossae species gothica est , ut procopius docet , normannisque ideo usitata , genus à gothis deducentibus . licet enim saxones castra sua , gyrata etiam fossa circumscripserint , angustiori tamen usi sunt , & minus depressa , sed majoris plerumque circumferentiae ; qua & hos romani superabant . romani autem ( ut polybius refert & vegetius ) in oblongum , si pateretur locus , castrametebantur quadrum , fossaque . tantum muniebant pedum , praetenta anteriori lateri fossa alia quam loricam appellabant . formam infra videris , cum de brancaster tractaverimus . ex his quae diximus , uniuscujusque populi , romani , saxonis , dani , & normanni deprehendas munimentum . romanos apud risinge aliquid habuisse praesidii , & loci monet opportunitas , littus procul nudum , portum juxta celebrem despicientis ; & effossus in vicinia nummus constantini magni inde pridem ad me allatus . castri exterior fabrica , norwicensem exprimit ; tecto pariter & intestinis spoliata . tribus in muro firmata turribus , quas trium maneriorum domini , viz. de hunstanton , wutton , & ridon , feodali obsequio tuebantur . municipium adeo vetus , ut originem ejus nesciant archiva regia . praetore gaudet , & binis olim in hebdomade mercatis ; nundinisque in anno quolibet . dierum . ab anno ..... duos misit ad comitia regni procuratores , quos burgenses vocant . vetus fuit albeniorum , comitum arundeliae possessio , & in divisione amplissimi eorum patrimonii inter sorores hugonis comitis , in portionem cessit roberti de monte alto , baronis limitanei . robertus de monte alto , qui ..... reliqua desiderantur . prisas hic vocat , jus capiendi annonam in villis circumjacentibus ad sustentationem castri , precium intra . dies reddentibus , ut stat. an. . edw. i. definitum est . ad orientalem risingae limitem ( mantua me miserum nimium vicina cremonae ) congham adest , nomen a conguno quem emittit fluviolo auspicata . hic pars maxima nostri patrimonii , quam obtinuit olim gulielmus rusteng , qui sub comite arundeliae militans in terra sancta tempore richardi i. miles factus est ab eodem comite , prout etiam — de ingolsthorpe , & andreas de sharneburne . hoc quippe seculo dominis licuit capitalibus clientes suos milites instituere , etiam episcopis & abbatibus . sed abbatibus prohibetur in concilio [ londinensi sub anselmo archiepiscopo cantuariensi , an. . ] ad mallingham hinc proceditur , quam robertus mordant prothonotarius civilium placitorum sub henrico viii . nuptiis tulit barbarae , filiae & haeredis johannis le strange jurisconsulti , easdemque transmisit ad pronepotem . huc se adjungit rougham , ab aevo richardi ii. yelvertonorum sedes , e quibus willielmus sub henrico vi. christophorus sub elizabetha , & henricus hodie , justitiarii claruere ; hoc est , ( ut avum taceam , qui & jurisconsultus fuit ) filius pater , & tritavus . sed christophorus & henricus in northamptoniae consederunt comitatu . descripsi ante aliquot annos in norfolciae tabula geographica circulum , duodecem habentem in semidiametro mille passus . centrum posui in campis roughamiae , deprehendique sub illius ambitu fuisse . monasteria , totidemque minorum nobilium domicilia . simul in vigore omnia , cum ferale illud exiit de excindendis monasteriis senatus-consultum . domicilia ab iisdem familiis vel eatenus ( puta . post excidium annos ) possideri . monasteria vero , ter , quater , quinquies , dominos cum familiis eructasse , nec reperiri hodie monasterii sedem , quamvis uberem & amaenam unamquamque ( nam , ut abel , pinguia deo sacrificabant majores nostri ) qua una eademque familia nobilis est gavisa . duas excipio , quarum altera non dum tertiam , altera ne secundam transiit generationem . sed nec haec familiae alicujus habitatio ; nec illa à gravissimis infortuniis unquam libera . par in reliquis observatio ; ut intelligas non inanes fuisse multiplices illas maledictiones raptoribus istorum à veteribus imprecatas ; nominis vel familiae exstirpationem , patrimonii effusionem , lites & jurgia diuturna , infortunia saepe gravissima , saepe etiam capitale excidium . numerosa praesto sunt exempla ; sed hic aliud institutum . sed recurrendum mihi est in occidentem ad borealem , quem faciunt isis & congunus , angulum . illic babbingley , ubi s. felix east-anglorum apostolus , circiter an. dom. . à dunmocco applicans , incolas imbuit christiana fide , primamque hujus tractus ecclesiam condidit , quae à posteris ejus dicata patrocinio , hodie s. felicis appellatur . rei memoriam etiam praedicant adjacentes montes , christianorum dicti , the christian-hills ; & in vicinia flitcham , quasi felix-ham , i. e. felicis villa seu habitatio . haec coenobio ornabatur monialium , quod ejus fundator cellam statuit , ad abbatiam s. mariae walsinghamiae pertinentem ; dictaque ipsa est s. maria de fontibus , quod ab oriente fontes ostendit aprico interdum meatu , interdum subterraneo ludentes . habetur hic in campis quadrata area & leni conclusa fossa mallobergium , quod incolae flitcham-burgh nuncupant . ibi olim , ut in praetorio conveniri soliti sunt centumvirales judices ( the free-holders vocant ) cum istius centuriae seu hundredi , tum & aliarum ad lites in centuria emergentes dirimendas . sic enim in brevi quodam gulielmi rufi . willielmus rex anglorum h. camerario salutem . facias convenire & considere tres hundredos & dimidium apud flicceham-burch propter terram illam de holme , &c. huc etiam convenire olim solebant centenarii , ad dominum hundredi eligendum : & ex prisci moris vestigia huc annuatim hodie indicuntur centenarii seu hundredarii obsequium domino hundredi ( quem sectam hundredi vocant ) praestituri . progredienti versus boream , appleton , ubi splendidas aedes non ita pridem exstruxit edouardus paston ; & sandringham , ubi ab aevo edw. iii. cobbarum succrevit familia , à laeva praeteritis ad sharneburne descenditur . hic thokus quidam loci dominus , a s. felice conversus & baptizatus , secundam extruxit ecclesiam , quam in honorem ss . petri & pauli felix dedicavit . parvam siquidem , & ( pro ratione illius aevi ) ligneam ; unde longo tempore stock-chappel appellata est . thoki deinceps haeres ex multis suscepta nepotibus , edwino cuidam dano angliam venienti cum canuto rege an. dom. . desponsata est ; edwino rex canutus snetesham dedit , & multa praedia de quibus postea , sherburnamque uxoris patrimonium confirmavit . hic ille omnibus pace atque otio fruitur , donec à normannis ejectus est ex omnibus . distribuente enim inter commilitones angliam gulielmo conquestore , & partes hic amplissimas gulielmo de albeneio , & gulielmo de warrenna concedente , ejecerunt illi quotquot vellent , & edwinum pariter expulerunt . conqueruntur pulsi & ejecti apud regem , & ( ut verbis utar ms. cod●cis ) dixerunt ei quod nunquam ante conquestum , nec in conquestu , nec post , fuerunt contra ipsum regem in consilio vel auxilio , sed tenuerunt se in pace ; & hoc parati fuerint probare quomodo ipse rex vellet ordinare . per quod idem rex fecit inquiri per totam angliam . possedit praeterea thokus quicquid jacet ab occidente sharnburniae , versus mare ; deditque totum ingulpho cuidam cum filia unica in matrimonium , qui de nomine suo villam ibi condidit ingolsthorpe , ut refert ms. liber cui fidem cedo , licet ego dictam putassem ab ingol fluviolo , qui hic mare ingreditur . ad fontem ingolis habetur netesham , i. e. villa vaccaria , hodie snetsham , quam ( ut diximus ) canutus dedit edwino dano ; sed eripuit illi gulielmus de albeney normannus ; suaeque prosapiae comitibus arundeliae permansit , donee ex nuptiis unius haeredum ad monte-altos transiit , & ab his per stirpem regiam ad duces lancastriae . nobile dominium & splendidis ornatum privilegiis ; sed inter ignobiles jampridem distractum . dedit etiam canutus edwino dano planiciem ex parte orientali sneteshamiae , ad senos incultam mille passus . illic edwinus in lapideo colle , quem seculi illius latinastri hogum pecosum appellabant , stanehow condidit . a vado hic prope arundineo nomen ascivit sedgeford , ecclesiae s. trinitatis norwici olim collata : sed possessio nuper johannis le strange , cujus ego filiam primogenitam in matrimonium duxi ; patrimonium vero ( qua per fas aut nefas ) sub puellarum abrasit socer infantia ; suam inde pinguescens sobolem . injuriae , longae sunt ambages . transeo . sedgfordia exeunti exurgit promontorium s. edmundi regis & martyris nobilissimi ; qui ab offa rege east-anglorum in regni adoptatus successionem , splendido navium & ministrorum apparatu , à germania , huc in portum vicinum appulit , cui nomen eo tempore fuit maiden-boure , i. e. thalamus virginis . quis autem hic esset locus magna me tenuit dubitatio . portum de hecham exilem & obscurum censeo ; nec burneham satis laudabilem ad splendidum excipiendum navigium , quamvis naves illius seculi satis agnosco tenues . lennum igitur in considerationem veniens , prae caeteris arridet ; tum quod portus sit tractus istius eminentior , tum quod s. margaretae virginis sacrarium esset & thalamus . hanc enim lennenses ex antiquo divam coluere tutelarem ; templi ejus custodes sunt , & in honorem ejus tria capita draconis , quem illa cruce armata triumphasse dicitur , singulo in ore singulis sauciata crucibus , pro insignibus gestant . habeturque emblema virginis in sigillo suo publico , draconem cruce vulnerantis & conculcantis , cum hac circumscriptione stat margareta , draco fugit , in cruce laeta . sanctus vero edmundus à maidenbore non longe progressus , villam condidit regalem hunstanstone ; quod johannes pringtonus dulcedinem & potentiam interpretatur ; moratusque illic per annum pene , psalterium davidis in saxonico idiomate memoriter sategit recitare . liber ipse à clientibus suis monachis buriensibus in ipsius honorem religiose custodiebatur , usque ad excidium monasteriorum . ab hunstantonia perrexit athelburgum , regnique anno . martyrio coronatus , divorum ascribitur collegio ; & in vertice promontorii hunstantoniensis capella splendida honorabatur . pervenit deinceps haec villa regia ad alfricum , sub canuto rege elmamensem episcopum ; qui eandem , cum holme adjacente vicula ( cujus ecclesiam struxit hen. nottingham ) monasterio s. edmundi buriensis dono dedit . sed deducta postea sub ingressu normannorum , ad albeneios jure feodali extran●is vulgo le strange ceditur , ob praesidium à . militibus faciendum in castro de risinge . longe itaque mansit apud barones le strange de knoken ; sed à johanne barone an. . edw. i. confertur in hamonem fratrem suum de se & haeredibus suis tenendum per ser . — e cujus prosapia illic hodie floret hamo le strange equ . priscam familiam avitis ornans virtutibus , & ( quod magis in precio ) facultatum accessione . cerere ( ut hiblen melle , croco tmolum invidere taceam ) luxuriat pars haec maritima , praesertim hordeo , ex quo vinum conficiunt britannicum , vitis aemulum ; saxonibus antiquis bier ( quod proprie hordeum significat ) appellatum . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 graecis , qui hoc adeo capiebantur latice , ut in honorem ejus byrtorum seu hordeaceorum festum instituere , à constantinopolitanis usque ad anastasium imp. qui hoc sustulit , celebratum . festum ( inquam ) sustulit imperator anastasius , laticis desiderium omnes non tollent imperatores . at num saxonibus beire in usu ? bryton ( inquam ) seu potus hordeaceus , quem alio nomine eale , & à dulcedine soth-eale appellabant : non noster iste lupulatus : nam cum hordeo lupulus ante medium regni henrici viii . nuptias non inierat . ex illa vero die summo in honore lupulatum bryton ; quod ( ut graeci ) numen colimus , salutisque praedicamus donatorem . o funestam & infelicem salutem ! prima enim quae hic unquam pota fuit , in excidium transiit totius gentis . cum hengistum saxonem ad auxilium induxisset rex britannus vortiger , & hospes hospitem mutuis se exciperet convivationibus , roëna hengisti filia pernoctanti apud patrem regi propinans ait , was-hale . rex loquelam non intelligens , quid dixisset , quaerit à circumstantibus ; responsum est potare eam salutem regi ; qui rei captus novitate , blanditias colit cum virgine , & brevi in uxorem ducit . illa patris erudita technis , proceres regni ad convivium vocat , ubi ex insidiis trucidantur omnes , & ad saxones translatum regnum . hic branodunum ( à brano non procul fluvio , & duno pro monte ) vulgo brancaster , i. e. castrum ad branum ; pelagus à sinistris late spectat ; à dextris longius ericeta . recipiente se in orientem littore , branodunum vetus , hodie brancaster , ericeta longius , pontem juxta despiciens , romani castri vallum exhibet , ad mensuram à caesare datam ( bell. gall. lib. . ) castra in altitudinem pedum . vallo , fossaque duodeviginti pedum munire jubet . ●ormam castri cum singulis suis dimens●on●●●s , ut ●omanam plane agnoscas apposuimus . [ in codice ms. sp●l●anni spatium va●uum relinquitur ; ipsa castri figura desideratur . ] castri dimensiones ipsum ostendunt non tumultuarium fuisse , aut in transitu factum , sed legitimum & stativum , ad custodiam insuper totius littoris borealis contra saxonum irruptiones ( quibus adeo expositum fuit ut littus saxonicum appellaretur ) destinatum . e● nomen a bran seu brun & burn fluviolo , & duno pro monte ; quod etiam , ut berig & burg saxonibus , oppidum alias significat . bran vero & brun confundi videas in leofrici anglo-saxonis cognomine , qui alias dominus de brane , alias de burne appellatus est , pater scilicet herewardi . stationem hic habuit sub comite littoris saxonic● praepositus equitum dalmatarum cum sua vexillatione . sed illud quaero , quorum tempore coeperit hoc litus saxonicum appellari , ejusque praefectus , comes litoris saxoni●i . ferunt , inde nomen quod hic comes litus tueretur contra saxones . qui autem hoc ? num britanniam infestarunt saxones , romanis dominantibus . certe non reperi . pro derelicto autem habuerunt an. dom. . cum ab aetio consule opem contra scotos & pictos , valentiniano iii. imperante , implorantes non 〈…〉 vero ante annum . non appellunt , nec tum quidem a v●●tigerno haud accersiti & britannis . ante hoc igitur tempus non videtur saxonicum l●tus appellari . quid ergo in imperiorum notitia tanto proponuntur fastu romani magistratus in britannia , vicarius britanniarum , dux britanniae , comes britanniae , comes litor●s saxonici , &c. cum insigni praefectorum , officialium , & ministrorum cat●rva , & apparatu ? suspicor ; ut in provinciale ecclesiarum in romana cancellaria , patriarchae , archiepiscopi , episcopi suffraganei , hodie numerantur sub infidelibus ; ut floruerunt olim sub christianis . ●oc autem posito , male convenit ut romani nomine uterentur sua ditione non enato : provinciale siquidem priscas retinuit appellationes . celebre igitur monumentum notitiam imperii , de cujus origine & antiquitate crebro contenditur , siquido constat sub exitu valentiniani iii. concinnatum fuisse , non exutis omnino romanorum reliquiis , sed turgescente indies alluvione saxonum ; litus jam ideo nuncupari saxonicum , & praefectum ejus , comitem litoris saxonici , qui sub valentiniano i. superioribus paucis annis ( marcelino teste ) comes maritimi tractus appellatus est . haec ad ambiguum enucleandum ; ad me redeo . pinguntur huic comiti in notitia pro insignibus oppida ix . quibus praesidebat in insula ( puta britanniae ) cum nominibus ascriptis : soil . unum in sussexia ; . in cantio ; . in essexia ; & . in norfolcia , branodunum , viz. & ( de quo postea ) garienum . merebant sub eo una legio , quae hoc tempore . fere continebat pedites : seni numeri forte . pedites : & . ordines equitum , i. e. dalmatarum , qui praesidinm hic agebant ; & stablesianorum , qui ad ostium garieni , numero simul . vel hunc circiter . sic tota ejus militia per . oppida seu stationes disposita , continebat plus minus . pedites , & . equites . dalmatae vero hi dicti sunt , quod e parte s●lavoniae quam dalmatiam tunc appellabant , conscriberentur . eorum insignia praebet , ut vides , notitia : colores vero ex antiquis mss. sic expressit pancirollus . praeferunt ( inquit ) in alba parma duplicem argenteum globum , quorum primum minorem sex virides munitiones circumstant ; alter . acutas cuspides emittit . supra est quadrata tabella , quae unam legem duplici orbi romano dari insinuat ; prominentes mucrones caedem hostibus nunciant . eruuntur hic saepe romana numisinata ; ad me etiam nonnulla delata , cum duobus aliquando vasculis aeneis seu capedunculis . regiam autem villam ipsam ( sic enim olim appellatam reperiri , & regalibus imbutam hodie privilegiis ) coenobio s. benedicti ramesiensi dedit vulfgiva comitissa , uxor ailwini east-anglorum ducis , & totius angliae aldermannus ( id est , justitiarius ) qui opulentissimum ramesiae monasterium fundavit sub an. dom. . brani ostio septemplex innititur burnham ; nomen inde ( si britannorum bran , cum saxonum brun , prun , & burn confunderim ) etiam deferens . hoc autem isti pro torrente dixerunt : sed gunterus ( austriades ) ubi de hayl-prun oppido imperiali loquitur , hayl salutem exponit ; prun vero fontem : eoque sensu , fontem ( inquit ) liquere salutis . portu claret & mercato ; aliquando etiam prioratu . obtinuerunt hic olim è warreniorum dono splendidum calthorpii beneficium , dominorumque una symbolum auro & cyaneo tessellatum , quod trajectu distinctum armelino hodie gestant in clypeo ; ut pro more veteris illius seculi patronum enuncient feodalem . sic ut diximus sharnburni albeneiorum : & moris typum exhibuisse videtur apud giraldum cambrensem , sub henrico i. giraldus de windesora , constabularius penbrochiensis , qui xv. armigeris arma dominorum suorum cum feodis dedit , ipsosque statim militari cingulo decoravit . habetur sub edw. iii. in quatuor illis armigeris pugnacissimi baronis de audeley recentius testimonium , sed nos aliud agimus . transiit haec haereditas superiori seculo cum filia philippi calthorp equitis ad parkeros , à gente baronum de morley propagatos . egeruntur hic secundum littus crebri monticuli ; saxonum & danorum proculdubio sepulturae , ( nam de germanis tacitus , sepulchrum ( inquit ) cespes erigit ) an & romanorum , fossione dignoscendum . hi mortui , cineres in urna condidere , aggestis desuper cespitibus ; ut in exequiis mezentii prodit virgilius . illi non cineres , sed cadaver integrum colle opprimebant . tria vero exhibentur observanda . primum , tractum hunc qui jam cer●ris videatur thalamus , incultum tunc fuisse ; nam in arvis sepelire mortuos , gentium prohibuit superstitio ; ut apud ciceronem legas in fine libri . de legibus . secundum , paganorum & gentilium haec fuisse monumenta ; christiani enim more judaeorum in fossa occultabant mortuos , licet à saxonico berig , quod montem notat , nos hodie to bury dicimus , quasi monte tegere , ut latini etiam tumulare . tertium , scenam hic fuisse martis , clientumque ejus caemiterium , qui branoduni & pro portu patriae ad castra juxta creake & holkham contra danos militantes ▪ occubuere . in campis enim de creake haud procul à coenobio , amplum erigitur sepimentum militare , saxonici operis ; à quo decurrens via regia , blood-gate , id est , sanguinea via , nuncupatur ; cruenti illic proelii testimonium . habetur & his partibus ebuli herbae copia ; quam velut è danorum exortam sanguine , incolae dane-blood vocant . habentur & per loca in depresso littore arenarum tractus , marinos cohibentes fluctus , the meales à farinae pulverisve similitudine ( nam vox utrumque sonat à suevico & germanico mul pro pulvere ) appellati . quarto à mare lapide , depressius in valle sedet walsingham , illustri olim coenobio in honorem beatae mariae virginis celebrata . penetrale illic parentum religione augustissimum , ad effigiem capellae nazareth in terra sancta , ubi gabriel angelus deiparam virginem salutavit . conditum à richolde vidua nobili , villae domina , supra . annis ante excidium monasteriorum cum in visione tertio ad hoc excitata esset ab ipsa diva , exemplum ( ut ferunt ) aedificii demonstrante , & miraculo postea fabricam erigente . multos illic divinae potestatis radios effulfisse perhibent ; sanatas omnes morborum species , nec obticent mortuos suscitatos . hinc ab omni nostri orbis angulo celebris ad divam virginem walsinghamiensem ( parathalassam vocat erasmus ) peregrinatio . nec à vesana tantum plebecula , sed ad ipsis regni atque sacerdotii potestatibus . obtinuit fama celebris , me adhuc puero , regem angliae henricum viii . nudis pedibus à bashamia ad praesentiam virginis perrexisse ; conceptisque votis , monile peringentis precii obtulisse . forte ut leniret divam , quam exciso cum coenobio penetrali , extorrem brevi relegaturus erat . in ea quippe miram deprehendit bonitatis indolem , exigui memorem beneficii , & ingentium ( ut numen decet ) obliviosam injuriarum . moriens igitur huic legavit testamento animam , si legatam recte collocaverint executores ; qui in alio , quod sciam , nihilo implerunt ejus testamentum . beatissimae virginis imaginem chels●iae delatam flammis dedit monasteriorum excisor cromwellius , anno . ejusdem henrici . holl. p. . relicta walsinghamia , & villis in confinio croceos anhelantibus odores , bashamiae sub illo tempore aedes condidit istius tractus illustrissimus gulielmus fermer , eques potens ; e cujus jam familia ad calthorpos nuptiis transiturae sunt . adjacet fakenham , mercatorium , quod in sexto a mari lapide salinam olim praebuisse ( ut testatur liber angliae censualis ) mirum opinaberis . illic ad occidentem rayneham , cujus sub edw. iv. & hen. vii . dominus suit rogerus townesend eques primo regiarum causarum ( quem attornatum vocant ) procurator , postmodum civilium placitorum justitiarius . ejus abnepos , homonymus animae & fortunae dives facultatibus , avitas sedes non tam novis aedibus , quam nova aedificandi fabrica magnifice illustravit . nec procul wissingset ; quod herbertus bozun normannus sub gulielmo i. emeriti nomine suscipiens , longa nepotum serie , in hodiernum transfudit sobolem . et in proximis mileham , si non alio , cunis memorabile edwardi coke , summi nuper angliae justitiarii , legum officinae conditoris , & quod ruptis ilibus fateantur aemuli , jurisprudentiae nostrae coryphaeus . praedicabat miri quidpiam ejus genitura ; matrem ita subdito juxta focum intercipiens , ut in thalamum cui suberat non moveretur . locum ipsum ipse mihimet demonstravit . late hic ad hieri ramum borealem distendit alas nobile dominium elmham , quod usque patrum nostrorum memoriam secularem nunquam agnovit possessorem . gentilium enim aevo flaminis perhibetur habitatio , conversisque ad fidem a felice sigeberto rege & anglis orientalibus in episcopi transiit patrimonium , cujus sedes dunwici fuit . cum vero tres illic successissent a felice praesules ; graveque videretur tantam plebem unius credi moderamini ; divisa est parochia inter duos , relictaque alteri suffolcia cum dunwico civitate , alter sortitus est norfolciam cum elmhamia . sederunt hic deinceps ante an. dom. . viginti tres episcopi , a sede elmhamenses nuncupati . castellum praebuit in egesto colle , cui se recepisse dicitur episcopus norwicensis , cum excommunicationem , quam innocentius ix . in joannem regem promulgaverat , edixisset , regemque merito accendisset . a castello per cuniculum subterraneum in ecclesiam itur ad altare ; ubi sancti olim episcopi jejuniis & assiduis orationibus incumbentes , deum clam mortalibus invocabant . ecclesiam condidit sub gulielmo juniore herbertus de losinga , primus norwicensis episcopus ; vel collapsam potius à fundamentis credideris excitasse : sedem enim episcopalem tot annis ecclesià caruisse , nemo cogiter . traditur hoc dominium cum reliquo episcopatus patrimonio in permutationem , ut praefati sumus , henrico regi viii . a richardo nix , episcopo caeco , ut è laqueo quem inciderat semet liberaret . rex acceptum d. cromwello contulit funestum donum . securi enim hic adimitur , & effuso postea integro patrimonio , pronepos ejus d. coko ipsum venundavit , aerumnarum satis exin conscio . ad australem hieri ramum gressenhall assidet , nobilis olim fstotevillorum habitatio , & clientes multos in obsequium habens militare per foliotos ad tho. hastings , baronis de abergavenni fratrem , transiit . ejus ortus à nepotibus edwardus hastinge ( cum in hastiludio occisus esset an. dom. ..... laurentius hastings comes pembrochiae ) titulum baronis de hasting , & sine discerniculo insignia , coccineam scil . manicam in clypeo aureo , sibimet assumpsit . gravissimas ideo lites cum de grey ruthino barone legitimo è foemina haerede , tum in curiis civilibus tum in militari , per annos plurimos incredibili tuebatur pervicacia : nec victus demum & incarceratus succubuit , nec moriturus . desiit vero ejus familia in hugone hasting ; haereditate ad extraneos & brownos per filias transeunte . nec silentio praetereundae cley & blackney , portus non inhospitales , adversis euripi incumbentes faucibus : eo autem prior clarior , quod nautae ejus an. dom. . filium & haeredem regis scotorum , foederis causa ad galliae regem navigantem , interceperunt & henrico iv. regi angliae munus aptatis●imum exhibuerunt . jam in boream reclinantibus , ad initium buri fluminis habetur melton , constabulariorum aliquando sedes , & ex nuptiis ad astleios veniere ..... edidit qui in illustri sub henrico vi. duello ..... gallum in gallia coram gallis vicit , laborantemque famam suam emancipavit . burus tenui hinc procurrens filo , à dextra heydon linquit , aliquando mercatorium . et sall , ubi elegans ecclesia , à brusio ( qua ex insculptis insignibus conjectare licet ) villae domino & patrono , circa aetatem henrici vi. condita . cancella vero aeque elegans à quodam gulielmo wode , rectore ecclesiae & decretorum baccala●reo à fundamentis struitur an. dom. . a brusiis vero ad townsendos , &c. — tria hic vicina mercatoria ; repham , tribus splendidis in uno coemiterio ecclesiis splendidum ; sed una jam diruta : caston , ubi manus aenea ( rationem non teneo ) praefertur dominii senescallo : & qua burus ponte jungitur ▪ ailesham , quod ducatus lancastriae apud nos praetorium est . mirum hic in jure nostro ; manerium à manerio , & per virgam teneri ad voluntatem domini , & per copiam rotulorum curiae concedi ; manerium scilicet de sextons de manerio de ailesham . loquor in forensi dialecto : sed qui nescierit ipsa feoda militaria tenta olim fuisse & per virgam & ad voluntatem domini , legat si placeat quae de feodis in nostro archaeologo disseruimus . a laeva blickling , bolannorum aliquando sedes , è quibus orti sunt thomas bolen , comes wiltsh●riae , & anna bolen uxor regis henrici viii . optimae principis divae elizabethae mater , natalitium hic sortita . cadente in fatum jacobo bolen avunculo reginae elizabethae , blicklinga ex nuptiis ejus filiae & haeredis , ad joannem clere pervenit : cujus e filio nepos edwardus , ordinis s. michaelis eques , eam vendidit henrico hobart i quiti , summo plebei tribunalis justitiario ; qui aedes veteres insigni auctas impendio , familiae suae stationem posuit nobilissimam . ab austro , non praeteream wichingham , clarum olim wichinghamiorum familia ; è qua sub edw. iii. floruit clarissimus nominis illius jurisconsultus ; & bretonum , non minus insigne celeberrimo illo episcopo herefordensi , qui sub edw. i. pandectum juris nostri regii concinnavit ; quam facinore joannis breton sub henrico iii. vulgatissimo . godofredus de millers , eques genere & militia clarus , concubitum ambit filiae joannis breton . illa , patre consulto , noctem pangit , qua cubiculum virginis eques clanculum subrepit ; captus vero ex insidiis gravissime primum vulneratur , deinde flagris caesus acerbissime per distentos ad trabem pedes tollitur , mortemque ardentius imprecanti abscisis membris virilibus , mutilatus est . accidit & eodem tempore dapsili c●idam clerico simile infortunium ; sed commotus hisce rex praeconia per provincias edixit voce , ne quis praesumat , nisi pro conjuge , adulterum membris mutilare genitalibus . trans burum in conspectu blicklingae , pare velut distantia , habentur calthorp , dictum à frigore ; & erpingham ; viculae tenues & jam obscurae , sed felix utraque è celebris & antiquae familiae natalitiis . illa calthorpiorum , propaginem late distendentium ; haec epingamiorum fortiter dimicantium : è quibus unus fuit e xv. viris qui henricum ducem lancastriae ab exilio ad regni molimina redeuntem , comitatus est : & qui henrico v. in agencortensi proelio fortissime dimicaturus , rudem ejecit , ineundae pugnae tesseram auspicatissimam . hic à latere baningham , ubi rex henricus i. . marcatus terrae dedi● gerardo tasard tenendum de eo per serjantiam balastriae ( ut inquiunt schedae ) i. e. arcubalistae . reflector paululum in occasum ad berningham , à berninghamis per hethersetos ad pagravos ducta : e quibus johannes pagrave jurisconsultus aedificium recoluit & filio dimisit . et baconsthorp , ubi à johanne heidon jurisconsulto sub henrico vi. potenter excrescens heidonorum familia , jam in deliquium regressa est . adjacet gresham , nomen faciens ditissima exinde prosapiae ; quod thomas gresham , praetor londinensis , & regalis ( ut vocant ) excambii conditor , florere incoepit . hinc in boream mari vicinior habetur felbrig ; nomen & sedem praestans vetustae & effaetae familiae felbriggorum ; è qua d. simon de felbrig , eques inter nostrates celeberrimus connubio potitur margaretae , filiae ducis thasae , regis bohemiae nepotis , è qua alanam filiam & haeredem suscitavit , nuptam gulielmo tyndall , patri thomae tyndall , qui genuit gulielmum tyndall , ad creationem arthuri principis walliae balteo cinctum militari , & jure margaretae proaviae suae , haeredem regni bohemiae denuntiatum . sic heraldorum nostrorum fasti ; sic me puero fama celebris . jam ad litus reversus , cromer mercatorium neptuno contritum inimico praetereo ; gimminghamiam accedens , ducatus apud nos lancastriae sedem primariam . ingens illic aula columnis distincta , quarum ea olim ratio fuit , ut supra columnam suae conditioni designatam nemo ascenderet . retinetur & prisci moris consuetudo : a colonis manerii quos socmannos olim , hodie ten●ntes in soccagio vocamus , non tam censum pecuniarium quam opera rustica , & ad victum vestitumque pertinentia repetere . moris ut romanis insoliti , tacitus meminit cisalpinis omnibus in usu . nobis vero mutavit primus rex henricus ii. nec procul in crepidine promontorii bronholmensis , coenobiolum aliquando s. sepulchri , à g. glanvilla censu pauperi constitutum ; sed ex cruce quae illic colebatur , auctius indies & per quam celebre . liceat dicere de hàc , quid proditum . factam sine dubio ( ut asseritur ) de ipsa cruce in qua pependit dominus noster ; ad longitudinem pene humanae manus , cum duplici ligno per transversum . ferri solitam inter alias reliquias à patriarcha & episcopis ante baldewinum imperatorem constantinopolitanum ( flandriae prius comitem ) in aciem progressurum contra crucis inimicos ; neglectaque fortuito semel aliquando , caesum cum exercitu imperatorem . erat tunc constantinopoli , capellanus quidam anglicus divina inter alios celebrans in capella imperatoria , & reliquiarum agens custodiam ; qui cum omnia desperata videret & perturbata , reliquias & pretiosa multa clam surripiens , angliam venit ; & quaedam monacho s. albani vendidit , quae parisius fatetur , magna illic fuisse veneratione cum haec ipse scriberet , id est , an. dom. . crucem vero nullis cederet capellanus ; qui & ipsum & duos filios suos parvulos in ordinem non susciperent monachatus . repudiata conditione à divitibus multis monasteriis , ut fraudem suspicantibus ; ad bronholmiae devenit prioratum , aedificiis & inopia jam tum laborantem . pacta vero illic conditione prior & fratres suscipiunt crucem , & in honestissimo oratorii sui loco magna cum reverentia & laetitia collocant . subsequitur mox miraculorum ingens fama , & non solum ex tota anglia sed è longinquis regionibus huc concurritur . coenobitis interea luculentus quaestus . hujus meminit sub exitu quarti abhinc seculi galfridus chaucer in praepositi lasciva fabula : and with the falle out of her sleep she braide , help holy cross of bromholme she said . hic in littore una sedent paston & pastoni , villa tenuis , gens ditissima . legendo à pastona littus occurrit waxham , sedes woodhousiorum familiae , ortu & insignibus ab illa kimberleae discrepantis ; sed clarae pariter . hic gulielmus woodhouse eques , jacobo regi nuper in facetiis , & familiae corruentis suscitator , primum apud nos instituit decipulum anatarium , peregrino nomine a ●oye , i. e. cors , seu cavea nuncupatum . stagnum siquidem valde latum est , sed parte una arundinibus septa , in angustiam porrectum . in hac angustia , nutriuntur indies anates aliquot proditionis causa mansuefactae , quae totam regionem circumvolantes , sui generis volatilia redeuntes ducunt catervatim in stagni latitudinem . apparente jam tum caute in extremitate latitudinis stagni cane subdolo ad hoc edocto , secedunt volatilia remotius angustiam versus , prementeque adhuc cane , sed à longe , & in aquam alias semet immergendo alias furtim efferendo , capescunt tandem ipsam angustiam . palam nunc exultat canis ; eoque viso , sidunt aves proditoriae , & dum in alas se conjiciunt advenae , retibus obruuntur anatarii . praedantur anno uno in hujusmodi decipulo , tot quot vaeniant aves mille coronatis gallicis , & ( ut audivimus ) multo supra ; in vicinorum grave admodum praejudicium , qui hoc modo & aucupii coërcentur voluptate & mensarum pristino supplemento . germanis igitur superioribus capitale perhibetur , hoc erigere . ad meridiem walsham , & worsted . buri in margine , cowshil est , cui inter privilegia indulsit henricus iii. ut servus qui hic per annum manserit , exiret liber . in adversa ripa frekenham-hill , ubi turnus vice-comitis toti annuatim indicitur comitatui . vicinum crostwick obtinet . crassorum sedes , vulgo le grosse , equestris sub henrico iii. familiae . nec longe sprowston , aedificiis à joanne corbet jurisconsulto ( norwicensibus oriundo ) adornatum , praediisque auctum à milone equite aurato , filio ejus : jam cum milonis pronepote in tutela regis est . redeo ad burum , qui depressas saepe planicies superfluens , nobiles multas edidit piscaturas , & percarum genus celeberrimum . memorabile est quod ab accolis accepi : ranworthae aliquando . modios piscium , duobus circumclusorum retibus , depraedari . e regione sedet ludham , ubi aedes non episcopales , sed episcopi norwicensis in rure unicae . officinam fuisse dicuntur agriculturae abbatis s. benedicti de hulmo , vulgo grangiam . subest in palude tremula ruderum ejusdem abbatiae moles ingens , quae ex insculptis insignibus sculpturam prodit recentiorem . fundavit tamen eam rex canutus in honorem s. benedicti , cujus ut apud anglos ordo vetustissimus , ita & regula gratissima & frequentissima . tanta eam admiratione amplexus est fortissimus monachatus propugnator rex eadgarus , ut cum monasterio s. aethelredae eliensis , quod instaurabat wintoniae episcopus ethelwoldus , . hydas terrae apud hatfeld elargitus esset ; nobile manerium de sudburne addidit in coronidem , sub conditione quod ethelwoldus regulam s. benedicti de latino in anglicum transmutaret . festinans jam burus ad hueri confluvium , acleam à dextris praeterlabitur , quam ead●othus filius goderici abbatiae s. benedicti ramesiensis dedit . a sinistris flegg peninsula frumento dives & ubertate soli , primam excepisse videtur danorum coloniam ; tum quod portui cui appulerunt , sit vicinior , natur●●que munita beneficio ; tum quod exiguo suo ambitu . villas comprehendit in by desinentes , voce danica & villam seu habitationem significante . hinc nos hodie a b●-law dicimus , quod villa quaepiam sibi constituerit ; seriptorib●● dani●●s bi-laginem , a by pro villa , & lage , quo nos ( ut solemus ▪ g in ● mutamus , pro lege . yarmouth nee verum garianonum , nec à vero alienum est . sedes enim utrique ad ost●um fluvii garienis , qui & utrique nomen indidit . huic vero à canali vetere , illi a recentiore . ambo autem in illo littoris spatio , quo an. dom. . cerdicus saxo cum cinrico filio ejus & . navibus portum ingrediens , britannos profligavit obvios , portuique nomen , cerdicis oram , ut aethelwerdus refert , dereliquit . sub quarto inde lustro , stuff & wuthger pariter saevientes , hanc diripiunt regionis partem . ambo autem in illo littoris spatio , quo sub comite littoris saxonici praesidium agebant stablesiani equites ; qui proprie suberant magistro equitum in occidente duces limitanei ( panc. p. . b. ) sed ut alii magistrorum milites , alus ducibus & comitibus limitaneis merebantur : sic hi sub nostro . erant vero sub hujus nomine vexillationes aliae plures , ut stablesiani primi , secundi , tertii , africani , italicani , &c. sed an ab aliquo eorum nostri deferendi sint , an per se britannicani appellandi , aliis linquo . dicti omnes à loco unde orti sunt : & forte legendum putat pancirollus p. . a. stabaliani ; qui fuere galliae populi . stablesianorum symbolum nescio an omnium , vel corum tantum , qui in occidente sub magistro equitum militabantur , sic in notitia impp. describitur , & à pancirollo qui in mss. depictum vidit , enarratur , fol. . e veteris garianoni exequiis succrevit novum , & ut maritum uxor fluvium sequitur exulantem . longo tamen ut videtur intervallo . in appulsu enim saxonum nulla hujus vel alterius mentio : sed in ipsa ora velut nuda & anonyma cerdericus conscendisse fertur ; nomenque inde , ut aethelwerdus meminit , cerdericshore imposuisse . ut venetiae in arenis maris adriatici sedem sibi è ruinis aquilegii eluctatae sunt ; sic nova haec jermutha nostra è deliquio vetustioris originem sumpsit & incrementum . sita est enim in lacinia terrae , quae olim arenarum moles suit ; ab oriente , salso mari ; ab occidente , fluvio salso ( vel ut isthmus ) latitudine interclusa ; longitudine , . passus non excedens . quod miraberis tamen , aquis abique dulcibus exuperans . mare exhibet xerxianae classi satis fidam stationem , fluvius portum tutum proebet , qui . naves aequore suscipiat languescenti . ora igitur cerdici olim , & saxonibus excip●endis commodissime exposita . arenam obruisse fluvius dicitur usque ad canuti regis tempora , annum circiter . cedente vero tunc mari , & arenis indies latius atque firmius semet efferentibus ; conveniunt illic sub edouardo confessore & ingressu normannorum , non tantum norwicenses & vicini plurimi de norfolcia suffolciaque ; sed portuenses ipsi qui hoe aevo soli habebantur angliae piscatores , galli , belgae , aliique peregrini artem exercentes piscatoriam . halecum enim nobilissima hic europae piscatura & septembris exitu ( quem cum danis igitur fish-month appellemus ) per totos plerumque . dies , quod immunium illic hodie nundinarum spatium est ; primumque papiliones & tuguria contra jovem inimicum , sed ex licentia regum , honestiora statim domicilia & ad fastum protinus exaedisicant . tempore gulielmi rufi , gulielmus herbert norwicensis episcopus , ( de losinga , id est , mendax cognominatus ) capellam in hac arena condidit pro salute animarum illic appellentium : & post paucos annos , non longe à capella , ecclesiam perillustrem s. nicolao dicatam , piscatorum vero ditata● oblationibus & dotatam . hinc statio illa , roda , ( i. e. statio ) s. nicolai appellatur . novae jam villae rex henricus i. anno regnis sui . magistratum imponit , regia functum authoritate , quem ( de more normannorum ) le provost , i. e. praepositum appellabant . et cum hoc sub regimine , centenos floruisset annos , joannes rex . mar. regni sui . villam in burgum , homines in burgenses constituit , de jermuth nuncupandos : & burgum ipsum burgensibus dunisit ad firmam ( ut loquuntur ) feodi in perpetuum . ex concessione henrici iii. se muro claudunt & fossato , . jugera continentibus , a. d. . & in an. . gubernatur burgus per balivos suos . edouardus i. & ii. aquam illic nomine honestarunt portus jermuth , tronumque & sigillum dictum coquet pro oneratione & exoneratione navium instituerunt . edouardus iii. ( qui hinc maris cognoscatur dominus ) burgo locum in alto mari distantem . leucas , vocatumque kirkeley roade univit in perpetuum ; opibusque & potentia sic tunc jermutha floruit , ut an. dom. . dicti regni . ad caleti obsidionem . emisit naves & . nautas ; quod à nullo portu angliae factum est si fowensem excipias , qui licet quatuor naves plures exhibuit , nautas tamen . pauciores ; londinum ipsi . tantum naves & . [ nautas ] exhibente . frequentia populi ex hoc dignoscitur , quod paulo ante in uno anno . . peste rapiuntur ; cum sub initio jacobi regis . tantum illic aestimarentur . possidet quod sciam nullas hodie hoc ( ut alia ) municipium possessiones ; sed instar filiorum aeoli atque thetidis ( ut in inquisitione . henr. iii. compertum est ) maria & . ventos . repetit quod deseruit mare ; & cum aliquando isthmus , quo situm est oppidum , ad sextum protenderetur lapidem , hodie in secundo terminatur ; & ne vicinius proruat ingenti cohibetur ..... quae singulis annis , l. [ f. resarcitur . ] retia illic piscatoria londinum à jermutha , i. e. . mill . porriguntur ; quod cum in parliamento . elizabethae palam audissem affirmatum , & ut certiar fierem , sciolum convenissem ; respondit , compertum fuisse , suffectura ea ad totum spatium inter jermutham & belgiam occupandum , dum ab una navi ad alteram ( piscatorum more ) jungerentur . mirabiles quidem in nostris auribus ; sed aestimata alias legimus ad . libras anglicanas . veterem garrianoni sedem oblivioni tradidit alveum destituens fluvius , sedisque & fluvii incerta vestigia . videntur eam duo vendicare ; burgh-castle in agro suffolciano , quod meridionali fluvii lateri hodie incumbit ; & à boreali . distans mille passus castor villula . romanam ostendunt ambo speciem ; illud quadrilateram oblongam castrametationem muro coronatam , sed remotiorem à mari & loco paludibus & angustiis ita impedito , ut equestribus male conveniat turmis ; haec in ipso litore , muri etiam & muniminis rudera prodens , campestri loco equitumque discursioni litoris praesidio quod huic comiti , huic equitatui demandatum fuit , commodissimo . interiora enim & mediterranea comes alius tuebatur , peditumque magis cohortibus quam turmis equitum . garianonum igitur castorem pono , camdeno licet burgh arrisit . conducit in sententiam nostram , castor , nomen à romanis sumptum , praesertim cum in tota anglia , nihil ( quod sciam ) hujus nominis reperietur non romanum . convenit & ipse locus , arenarum oppilationi & diversioni fluminis oportunior , ornithiis & euro-aquilone imperantibus . orientem solem ulterius non videt norfolcia : remeandum igitur ad occidentem . e yermutha exeuntes statim recipit burgh-castle , ad hieri marginem , sed in suffolcia collocatum , quo nos igitur non commorabimur . situm tamen dabimus & effigiem , ut romanam fuisse intelligas : sed an stablesianorum equitum statio , cum fluminibus & palustri impediretur solo , licet in acclivi castrum , non est verisimile . si autem cnoberi urbs fuit , & monasterium ( de quo beda l. . c. . ) à judaeis postea habitatum tradunt incolae , & fidem auget , ejus ducens ad introitum via antiqua , judaeorum hodie appellata . tenebat aliquando hoc castrum radulfus filius rogeri de burgo per serjantiam ; quam cum dimisisset gilberto de weseham , & ille regi henrico iii. eandem dedidisset , rex . aprilis , regni sui . coenobio s. andreae de bromholme , cum omnibus adjacentiis conferebat . ad hieri cum wavenio coitum , tertio à yermutha miliari , è paludibus vix se erigit reedham villula , barneorum sedes , ab arundineo situ nuncupata , sed miraculoso lothbroci nobilis dani appulsu aeque celebris , at infelix . lugubrem suscitabo narrationem . lothbrocus hic à stirpe regia , cum duos genuisset filios , hinguarem atque hubbam , & solus aliquando in navicula , aves per vicinas daniae insulas , cum accipitre depraedaretur , correptus est subita tempestate per maris latitudinem , & in hieri ostium usque reedham deportatur . peregrinum incolae ( ut invenerant ) solum cum accipitre eadmundo regi east-auglorum , cujus ad decimum inde lapidem erat castor regia , detulerunt . formam & fortunam viri rex miratur , vultuque & moribus adeo serenis excipit , ut lothbrocus subito patriae desiderio non teneretur . capitur & aulicorum studiis , praesertim venatorio ; quo ut fiat peritior , berno se adjungit venatori regio , magistrumque sic brevi superat ; ut invidia percitus , hunc ille inter nemora seductum clam peremerit . desiderato lothbroco , canis quem alerat leporarius interfecti corpus vigil tuebatur , sed coactus fame alias atque alias aulam petit : observatusque à ministris regis , subsequentes ducit ad interfecti corpus . bernus sceleris reus agitur , & judicio curiae , regis lothbroci imponitur naviculae , solus & sine omni instrumento nautico ; fluctibusque & ventis creditus , daniam fato advectus est . cognita illic navicula , tormentis arguitur de lothbroci nece ; & se ut liberet , interfectum mentitur ab eadmundo rege east-anglorum . saevissimam jurant hingar & hubba ultionem , collectoque . armatorum exercitu , ductore berno , totam east-angliam ex improviso diripiunt . eadmundum regem brevi capiunt , flagris caedunt , confossumque deinde sagittis , & gladio detruncatum , inter divos referendum excarnificant . sic cum rege animam efflavit regnum east-anglorum , an. gratiae , . die . . calend. decembris , quae eadmundo hactenus celebratur in calendario . ex his videtur reedham villam hanc parvam , magna yarmutha antiquiorem esse . nam si habitatoribus frueretur yermutha , cum lothbrocus huc appulsus est , opem proculdubio clamore implorasset , attritusque fame & itinere , ulterius non perrexisset in fluvio . decurrit hinc fluviolus ad romanam alteram munitionem , sed an ventam illam icenorum , qua nihil olim apud nos illustrius , ego subito non definiam . mirum enim videatur & inconsultum , magni celebrisque populi metropolim ad ignobilem collocari fluvium , cum in viciniis ipsis haberetur aliud nobilissimum . hinc inter waveney & hierum nihil quod sciam memorabile , donec sub . pene lapide ad hales venieris ; ubi jacobus hobart , henrici vii . attornatus pluribus familiis initium dedit . pari distantia waveneium occupat mercatorium haileston . inde in septentrionem rediens , per shelton , quod antiquos suae appellationis dominos nuper exuit , ad tasburg itur . in wenti & hieri commissura , & wento magis quam hiero norwich assidet . a north dictum quod boreale , & wic quod castellum , vicum , portum , sinum seu anfractum fluvialem , saxonibus nostris significabat . convenit igitur , quamcunque elegeris significationem ; sed non aeque omnis . si de sinu dixeris , urbs non in sinu fluvii sed in dorso ponitur , nec ad partem quidem borealem sed occiduam magis , unde & west-wich potius quam norwich diceretur . saxo ipse alfricus nostras , wic exponit de castello , & huc nihil accommodatius . effecit enim ipsa ratio , ut castellum boreale diceretur ; cum ad tertium inde milliare versus ipsum austrum , aliud haberetur castrum regium , quod , extinctum hodie , caster tamen appellatur . s● a castro igitur nomen urbis , castrum nomine proculdubio est antiquius ; & forte ipsa urbe , quod in ejus habeatur meditullio . sic roma capitolium . licet enim fossam propter formam orbicularem & immanem amplitudinem , danorum censeam vel normannorum opus , arcem utique normannorum ; castrum tamen ab antiquiori seculo illic exstitisse , & nomen suggerit , & charta quaedam henrici i. qua enixius ab harvaeo , primo eliensi episcopo [ rogatus , ] ecclesiam illam liberam facit de jugo servitutis , & custodia , quam castello norwici debebat . imponi non poterat ista servitus , dum ab episcopis , monachis aut monialibus possiderentur terrae ecclesiae , si prius non fuisset debita ; ideoque debitam fuisse dum in secularium exstiterunt manibus ( i. e. tomberti australium gerviorum principis , qui aethelredae uxori suae , primae eliensis monasterii fundatrici , circiter an. dom. . eas dedit ) necesse est . in ecclesiasticorum enim dum erant possessione , magis ( inquiunt ll. edw. confess . ) in ecclesiae confidebant orationibus , quam in armorum defensionibus . ca. . amplum etiam fuisse norwici castrum ante normannorum ingressum , ex eo liquet , quod in domesdei legitur ibidem lxxxi . mansurae vacuae in occupatione castelli . nobile etiam tune fuisse videtur hoc norwici castrum , & velut totius icenorum provinciae metropolis , cui insignis ille geruiorum princeps , & tam insignis insulae illius pars ( si non tota ) deservirent . primo etiam ad east-anglorum reges , postea praesides , quos alias aldermannos , alias duces , alias comites appellabant , pertinuisse . in instauratione igitur monasterii , aetheldreda fratris sui adulphi regis east-anglorum opem implorat : & in translatione monachorum inde betrichswordiam , sub canuto rege , an. dom. . idem facit leofinus abbas à turchillo comite . quonam olim frueretur nomine , non me torqueo . proculdubio vel saxonico norƿic ; vel ( quod camdenus cedit ) britannico caer guntum ; vel ( ut lhuydus habet ) caer guynt . in historiis ( fateor ) raro occurrit vox alterutra : rarius quippe ipsae historiae . caer guntum vero quasi wentopolis , i. e. civitas ad guntum fluvium ( quem saxones more suo g. in w. mutantes , wentum pro wuntum dicunt , romani ventam . ) diceretur aeque & hieropolis , ab hiero fluvio . sed quaeritur an haec venta illa icenorum apud veteres & antoninum ? negaveris forte & affirmaveris in aequilibrio . a norwico per adversum flumen ad cossey remigatur ; ubi junior sed clara jerneghamiorum familia sedem obtinet luculentam ; primogenita illa quae ad somerle-town in lothingland suffolciae non pridem flourit , jam extincta . prope hic ad austrum , wenti sinum alium videas norwicensi similam : cujus cum in dorso pendeat , ut norwicus , villula , non à sinu nomen habet , sed à dorso , bouthorpe , quasi à bout , i. ambitu , & thorpe , villula . ab hoc sinu per intwood quod greshamos excussit nuper , ad kettringham contenditur , heveninghamorum sedem , numerosum equitum seriem proferentium . late hic in centuria ( quae à . montibus , ubi convocari solet , nuncupatur forehow ) distendit alas wimundham , vulgo windham . albeneiorum , comitumque arundeliae , eorumque haeredum , subinde ab ingressu normannorum opulenta possessio , donec à knevettis ad henricum hobart , capitalem justitiarium civilium placitorum , venditione devenit . coenobio claruit nigrorum monachorum , à gulielmo de albeneio pincerna regis henrici i. condito , sanctoque albano primitus ascripto : coenobium vero , crebris albeneiorum , comitumque aliquot arundeliae sepulturis ; ubi de fundatore hoc epitaphium hunc pincerna locum fundavit , & hic jacet ; illa quae dedit huic domui , jam sine fine tenet . huic radios hengham porrigit ; ubi rex aethelstanus . hydas , i. e. carucatas terrae aethelwoldo dedit , episcopo wintoniensi , qui easdem cum eadgaro rege mox post annum . commutavit pro . hydis & dimidio in insula ely & adjacentibus ; cum jurisdictione & immunitate . centuriarum & dimidiae , quae hodie s. aethelred s liberty appellatur . mercatorium est , & suos habuit barones ; sed clarius nomen à radulpho de hengham . a dextris kimberley egregiis adornatur woodhousorum aedibus , a johanne woodhouse equite nascentium . a sinistris dum in meridiem tend●●us , merito nos moratur attilburgh ; ut sopitam ejus dignitatem suscitemus . atque id in primis moneo : nusquam occurrit appellatio burgi , nihil innuens antiqui inuniminis ; puta urbem , castrum , turrim , vallum , sepimentum●e militare : majori autem , qua apud nos frequenter deprehenditur , castrum ; vrbem , civitatem . recte igitur littletonus , quae hodie ( inquit ) civitates , olim dicebantur burgi . nec pro civitate , alia pro veteres nostros saxonas seu recentes germanos appellatio . perhibetur celebri fama attilburgum non solum fuisse civitatem , sed & aliquando regiam & provinciae metropolim . famae non deest antiquae paginae testimonium ▪ si joanni de bramis ( waldei historiae ante . annos authori ) stet , ( quod penitus non faciam . ) refert joh. bramis , atlynge quendam , norfolciae regem ( qui sub ..... christi seculo floruit ) in defensionem suam eam condidisse adversus rond , thetfordiae regem , muro etiam cinxisse atque fossa , & quatuor portis , quatuor turres addidisse . ductum insuper a conditore nomen . de auctoris fide non digladiabor . monachus fuit thetfordiensis , & historiam transtulisse refert , tum ex exemplari gallico , tum & anglico , verbis laborante utroque interdum exoletis : sed & gallicum , pro genio seculi & illius populi multa invexisse . in confiniis attilburgi , villulam optimam ( sic besthorp sonat ) proavorum sedem habitat eques primarius — et jam in tractum pervenitur , sylvis divitem atque pascuis , quo primas obtinet boccinum , oppidum vetus , ad i●idem fluvium ( ut lelandus ponit ) situm ; & nunc buckenham , non à fagis ( ut camdeno visum ) quae in tota hac provincia nusquam ( quod sciam ) reperiuntur , sed a cervorum copia ( quibus ut circumfusa n●mora olim abundarent , ita neque hodie destituta sunt ) nomen habet . nam hos item dani atque saxones bucken vocant . pinguior autem ista comitatus portio , cum villis plurimis adjacentibus , & officio pincernae regii , gulielmo albeneio à conquestore data perhibetur , castrumque ille buckenhamiae condidisse ; cum tamen in excisenda patria nostra inter normannos nulla ejus mentio fiat in libro censuali , qui domesdei nuncupatur . quandocunque autem facta fuerit haec donatio ; certum est & fieri aliquando , crevisseque ejus posteros in comites arundeliae ; sed deficiente sub henrico iii. haerede masculo , insignis haec haereditas inter foeminas dispartita est : cessitque jam castellum de buckenham cum nobilissimo mancrio wimondham inter alia multa per tatsallos , calios , cliftonos , ad knevettorum prosapiam , e qua hodie philippus knivet baronetti gaudet novo titulo ; sed patrimonium vetus adeo labefactavit , ut vix buckenham cum castello r●maneant integre . inter villas plurimas quas keninghal hic trahit in suam ditionem , subest ad austrum garbusham , alias garbelsham , & garbolisham , quod wilfricus abbas sextus eliensis , antequam ecclesia illa in episcopatum eveheretur , gudmundo fratri suo inter alia cessit , ad vitae spacium . sed direpta interea à normannis anglia , hugo de munford miles normannicus , haec & caetera cum à gudmundo tum a monasterio in perpetuum abrasit . cito vero transiit garbulsham ▪ ut videtur ) ad dominos villae keninghal , cujus in vestibulo jacet . amplum enim hoc , & sedes olim potentissimorum baronum . hic limen norfolciae tuetur lopham è cujus latere velut ab eodem alvo enascentes discordes fratres , isis minor & waveney , fluvii , contrariis alveis hic per dille in oriente garienum petit , ille per thetforde in occidente lennum regis ; suo ambitu totum norfolciae australe hemisphaerium complectentes . thetfordiam ( antique tedford ) dici à supposititio fluminis nomine thet vel sit , vix assentior . saxonibus liquido sonat vadum populi , ðeod enim populus , ƿord vadum . fuisse tamen antonini sitomagum non inficior ; male licet de intervallo convenit à venta icenorum ; vetustamque admodum , ut caetera omnia in magus ( quod urbem sonat ) desinentia . in antiquae tabulae fragmentis simomagus , alias sinomagus ; quod utrumque mihi icenorum urbem velut primariam olim , & metropolin tractus istius fuisse suggerit . prior enim vox simomagus ptolemaeo quadrat , qui icenos vocat simenos : & vox posterior sinomagus dicit qu. icenomagus . nec caesari dissonat , qui icenos ( juxta camdeni lectionem ) cenos vocat , ut alii hispanos , spanos . in historiis autem non omnino sonuit sitomagus nomen ; nec ante saxones recentiores tedford ipsum ; nec jo. brami monacho adhibueris aurem de rondo quodam strenuo istius urbis rege , vicinisque infestissimo , memoranti . floruisse eum refert vortigerni seculo , torpentibus & cedentibus jam romanis , grassantibus pictis & scotis , enervatis britannis , saxonibusque cumulatim irruentibus . sic ut de britannia jam dicamus , ut de israel olim , nullus jam rex in israel . occupanti enim omnia jam ceduntur , & ubique tot toparchae , ( quos scriptores veteres appellabant reges ) quot tyranni , munita possidentes oppida vel territoria . praedones siquidem non reges ; de quibus recte porphyrius impius apud ninnium ; britannia fertilis provincia tyrannorum . brit. pa. . fertur & ex historia anonyma fuisse olim scholasticorum studium thetfordiae ( caius , p. . & fidem astruit ipse beda , lib. . c. . de sigeberto ita loquens : patriam reversus , ubi regno potitus est , mox ea quae in galliis bene disposita videt , imitari cupiens , instituit scholam , in qua pueri literis erudirentur . nollem fraudi esse cantabrigiae , quae locum hunc ad suam trahit academiam ; priorem tamen agnoscit ipse caius — egregia olim schola è plebeis ; cum per aliquot secula ex edicto gregoriano prohiberentur angli gymnasia celebrare propter arianam & pelagianam haeresim , aliosque quosdam britannorum errores . v. caium . veteres urbis aerumnas hodie praedicant fossae vicinae militares , egestumque plurimo cespite propugnaculum ; danorum potius quam saxonum opus : proculdubio non romanorum , qui nec tanta elatione nec tam exiguo ambitu castra metabantur . hanc , è northymbria regressi ( anno circiter . ) hungar & hubba , danorum occupant conductores truculentissimi . quibus dum congreditur orientalis nostrae angliae rex piissimus eadmundus , in fugam est coactus , obsessusque in castello de foamingham , demum capitur , sagittisque , arbori alligatus , transfixus , & truncatus capite : decerptumque deinceps regnum ejus ad occidentales saxones est delatum . ( vid. holl. & hunt. ) sub ingressu normannorum , arfastus , capellanus gulielmi i. & jam tractus hujus pontifex , episcopalem sedem ab helmhamia transtulit thetfordiam quod ab antiquo municipium esset episcopatus sui , & jam cautum esset concilio , ut episcopi sedes suas non in villis , sed in urbibus collocarent . secundus vero successor ejus , herbertus de losinga , norwicum detulit . apud episcopos tamen norwicenses annos totos . mansit thetfordiae dominium . cum vero sub henrico viii . ricardus nixus episcopus incidit in crimen diminutae regiae potestatis ( quod praemunire vocant ) bonisque omnibus & perpetuo carcere mulctandus esset ; gratiam ut redintigraret , universa episcopatus praedia ( viz. . vel supra , eximia maneria ) in regis patrimonium transcripsit : acceptis ( glauci & diomedis permutatione ) abbatia s. benedicti de hulmo cum suis , aliisque nonnullis praediis . quae ut certius , annecterentur episcopatui , decreto parlamentario anni . henr. viii . sancitum est , ut episcopus norwicensis semper abbas s. benedicti de hulmo habeatur , & e contra abbas s. benedicti de hulmo semper utique episcopus norwicensis : sic unus hodie nobis abbas . sed quoniam mentionem fecimus tantae cladis nobilissimi istius episcopatus , casum referam , quo regi tam obnoxius fit episcopus . anno . henrici viii . regiarum causarum procurator billam quam vocant de praemunire exhibuit in banco regis versus episcopum norwicensem ( nomine richardum nix ) tune in custodia marescalli existentem . billa quae di●itur indictamenti , suit hujusmodi . quod in villa thetfordiae in comitatu norfolciae , ultra hominum memoriam , consuetudo extiterat ; ut causa omnes ●●●l●siasticae in eadem emergentes villa , coram decano villae ejusdem , qui ibidem peculiar●m habuit jurisdictionem , terminarentur : & quod nullus extra dictam villam in placitum traheretur in aliquam aliam curiam christianam pro causis ecclesiasti●is , nisi coram eodem decano : & si aliquis contra dictam consuetudinem tractus esset in placitum coram aliquo alio judice ecclesiastico , & hoc praesentatum for●t coram majori ejusdem villae , delinquens ille forisfaceret vi. sol . vii . den . et quod quidam n. sectam prosequebatur in consistorio dicti i piscopi , pro re exorta infra dictam villam thetfordiae , & praesentatum hoc fuit coram majore , & quod ipse pro delicto isto forisfaceret vi. sol . viii . den . ob hoc episcopus majorem citat generaliter pro salute animae ad comparendum coram semetipso in aedibus suis hoxomi● , in comitatu suffolciae : & apparente eo , tanquam per libellum , questus ●st ore-tenus de praedi●ta materia , injunxitque eidem sub poena excommunicationis , ut quod praesentatum fuit , adnihilaret . episcopus petit at consilium ●ruditum ( sic advocatos vocant ) sibi assignaretur : & hi assecunt ●●m id quod praesentatum fuit , tum & ipsam consuetudinem vacnam 〈◊〉 propterea non posse dici contra coronam & dignitatem regiam ; nec 〈◊〉 tractum esse ad episcopum ad aliud examen : quod in nulla curia exa●●ari deberet . ● . curia episcopi non intelligitur fore inf●a stat. . ric. ii. sed in curia romana aut alibi , debet intelligi , extra regnum . sed resolutum fuit per fitz james capitalem justitiarium & totam curiam ; quod , sitne consuetudo , sive id quod praesentatum est legitimum vel non ; res , temporalis est & à lege communi determinabilis , non in curia spirituali : & episcopum igitur incidisse in crimen de praemunire . ● . quod verbum alibi , extendit tum ad curias episcopi , tum & alias curias ●cclesiasticas infra regnum , & saepius ita judicatum esse per curiam . tune episcopus indictamentum confessus est , & super hoc , port secundus justi●iar●●s judicium versus eum protulit : quod esset extra protectionem regis , & quod bona & catalla ejus regi essent forisfacta , corpusque ejus car●●ri mancipandum ●squ●quo placu●rit regi . de episcopatu plura aliquot . eum instituit s. felix burgundus , adductus a sigeberto , east-anglorum regum primo christiano ; ut populo suo apostolus sor●t . sedem posuit dunmoci in suffolcia . sed post tertium succ●ssor●m divisus est episcopatus in duas di●●ces●s : alt●ra cum . episcopis dunwi●i permanente , altera cum . elmhamiae in norfolcia collocata . direpta jam a danis tota regione , diu vacua ●●●sit utraque dioecesis ; sed coal●sc●nt● sub edwino rege , anno scilic●t . sede elmhamiae fruuntur . alii episcopi . hic arfastus vero dec●●us tertius , thetfordiam transtulit sub guli●lmo i. & qui post alterum successit ei herbert●s de losinga , norwicum usque ; ubi praediis ( ut di●imus ) antiquis viduata ; hodie novis fruitur . tenu●runt autem episcopi veteres baroniam suam , . melitum s●odis ; quibus jam regi devolutis , quaero quonam fulcimine baronia nititur , & quonam titulo parliamentaria ingreditur episcopus comitia ? inter caetera nobilitatis monumenta ; celebris olim fuit haec urbecula solio regum east-anglorum , episcopali cathedra , & octo praeterea monaster●s , quod ne● in primaria ulla reperitur civitate , nec in tantillo ambitu , n● ipsomet londmo ; adeo ut vel nostram dixeris 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , vel ex merito mona●●opolin . in responsion● vero quam dedit norfolciae vice-com●s brevi regis edouardi i. anno regni ejus . emanenti , quo se fieri certior●m rex p●aecepit , quot civitates , burgi , & villae essent in hoc comitatu ▪ unica ●an●um memoratur civitas , norwicus scilicet ; & duo pariter burgi , h. e. jaremutha magna & villa lenn-episcopi : nulla de thetfordia mentione , quantacunque celebri vetustate . proculdubio quod jam burgi tantum essent habiti , qui procuratores in regni emitterent comitia seu parliamenta : & thetfordiensibus non indulta est haec gratia ante annum — quatenus è schedis liqueat parliamentariis . inter coenobitas qui hic floruere , joannes bramis waldei historiam è veteribus anglico & gallico exemplaribus latine concinnavit , quod in ms. codice collegii corporis christi cantabrigiae sic exponitur , de thetford monachis bramis edidit ista joannes . nec taceam nobile illud monumentum nostrum , quod à senorum dierum creatione , hexameron ( cum illo s. ambrosii ) inscribitur , à monacho etiam thetfordiensi , . hinc annis ( ut scriptura suadeat ) conditum perhiberi . carmine , fateor , satis impolito , & pro genio seculi , leonino ; egregia vero solertiâ & amplo volumine , rerumque cognitione multiplicium ( ne bartassus primus dicatur hunc induisse cothurnum ) refertissimum . addam prologi ejus exordium ; ut nostrum sciat manuscriptum , qui in similem codicem in ciderit : omnia disponens , nusquam metam sibi ponens virtus divina , stabilis manet absque ruina . sacrum pneuma quidem , genitor genitus , deus id●m fons , vitae munus , numero sine , trinus & unus , &c. a thetfordia in boream redeunti velut ad septimum lapidem , breclis occurrit , exoletae breclesiorum familiae sedes , quam sub anglo-normannorum seculo , willielmus de warenna , comes sussexiae & surriae , thomae dedit filio godfridi , filio alberti francigenae , cum pluribus aliis burnhamiae , grimstoniae , &c. praediis , quae per faemineam haeredem ad cumptonos aliosque transiêre . tulit nobilis olim haec familia in feodali clypeo dominorum suorum comitum de warenna symbolum , cianeo colore in distinctionem in nigrum verso : hoc est , aream tessellatam ( cheque vocant ) ex auro & nigro ; ut de calthorpis utique supra memoravimus . haud procul ellingham : & hic à latere woodrising , southwellorum amplissimae samiliae ( è qua ricardus reginae mariae è consiliis claruit ) speciosa pariter & spatiosa habitatio . huic se adjungit carbrooke , ubi militum s. joannis hierosolymitani prioratus fuit , plurimis per hanc provinciam ditatus praediis & clientibus feodalibus . qui cum amplissimis illius ordinis gauderent privilegiis , crucis symbolum domibus suis vicatim apponebant , ut sic ab aliis eorum innotesceret immunitas . hoc autem cum multi alii olim factitarent , ut sub iisdem delitescerent immunitatibus , statutum an. . edw. i. westm . . ca. . ut praedia illa quibus falso appingerentur ejusmodi cruces , in domini feodalis transirent patrimonium . hinc per watton mercatorium , ad merton itur ; quod à lacu nomen habet ; decus autem à splendidis aedibus , quas illic nuper exstruxit gulielmus grey , probitate & prosapia eques splendidus . habentur in hoc tractu northwold , methwold , & hocwold , i. e. — aquilonaris , medius , & angularis , quod in sinu isidis velut angulo concluditur . northwold vero . aestimatum hydis , in illa permutatione de qua supra diximus , cessit rex eadgarus episcopo wintoniensi , qui hoc statim contulit eliensi monasterio . methwold ad ducatum lancastriae pertinens , cuniculos alit laudatissimos , cui ex constitutione leoffini abbatis tempore canuti regis , obsonium reddebat annuatim duorum mensium : ut vicinum feltwell , munfordorum antiquae & equestris familiae habitatio , quae an ab hugone de monte forti , qui cum gulielmo i. angliam est ingressus , plurimaque praedia tractu hoc invaserat , dicant qui rimantur stemmata : confundi enim saepius animadverto nomina : & in charta libertatum angliae ab henrico i. concessa , inter testes venit rob. de mundforde , ut in rubro libro scaccarii habetur , parisio autem rob. de monteforti . haec ruris pars , ut occidentis reliqua pascendis ovibus magnopere exponitur . pleraeque villae aut unum , aut duo , aut tria , interdum quatuor vel quinque millia nutriunt : ut intelligas proceres angliae apud edw. i. de vectigali lanis imposito conquerentes , consulto affirmasse opum regni dimidium in lanis consistere . dignum est vel nosse leges quibus lanigerum hoc pecus apud nos regitur : nam alibi non reperiuntur . gregem instituere solius fuit domini villae seu manerii , numerum & species ovium , stationesque designare : ubi locorum , & quo modo quibusque legibus cum in hyeme , tum in aestate pascerentur . hyeme vero , non suas tantum , sed aliorum omnium terras stationem illam per semestre pascere . caulas item erigere & circumducere sive stercorationis causa , sive alterius beneficii . nihil horum alteri licitum , ne vel ovem unicam in alodio suo hic sustinere . stationem istam the shepes course vocant ; libertatem erigendi caulas , fouldage & saxonice fal●-●ocne , stercorationem tath ; & hyemalem pastionem shack appellant ..... reliqua desiderantur . finis . comites marescalli angliae . et de milite dissertatio . ab henrico spelmanno equ . aur. comitum marescallorum angliae catalogus . quis sub gulielmo conquestore sit donandus marescalli titulo , nemo ( reor ) certus affirmaverit . non recepta enim videtur adhuc illa vox à scriptoribus nostris : & , si qui novisse se id officium arbitrentur ; adeo dissonis tradidere vocibus , ut lectorem relegant dubitantem . mentionem quippe faciunt de praeposito regalis exercitus , de principe militiae , de magistro militum , magistro equitum , tribuno militum , tribuno rei militaris , tribuno exercitus , &c. sed cujus hi erant conditionis , constabulariine an marescalli , iidem an diversi officiales , ductorumve tertium genus aliquod & in se distinctum alias , non definiunt . radulphus de waceio , apud gulielmum gemeticensem , gulielmi conquestoris pueri adhuc tutor , constituitur & princeps militiae normannorum , & in mox sequenti capite altero magister militum appellatur . gulielmus vero filius osberni , qui prae aliis omnibus conquestorem excitavit ad anglorum excidium , exercitusque ejus partem tertiam duxit ; in lib. ms. coenobii de bello , tribunus militum nuncupatus est , & alias tribunus normanni exercitus : quod de marescalli munere ( fateor ) intelligatur . huntingtonio , ( pag. . ) dapifer ducis . sed eboracensis fecialis ( nescio qua authoritate fretus , & in hoc à vincentio , suo mastice , minime postulatus ) expresse refert , gulielmum conquestorem in anno dom. . id est regni sui . vel . . gulielmum filium osberni , ob eximiam in militia navatam operam , & comitem herefordiae & marescallum senescallumque angliae constituisse . certe , non redarguam , eum fuisse marescallum ; angliam autem tunc venisse in titulos marescalli , constabularii , aut senescalli non assentiar ▪ occubuisse vero dicitur osbernus an. dom. . i. e. . vel . conquestoris . hugo grantesmale à fecialibus nostris in rimandis genealogiis sub conquestore inscribitur marescallus . sic in genealogia vice-comitis montecute : quo nixa fulciminae , non ariolor . et in genealogia gulielmidum , quos fitz-williams appellamus ; stirpis protoplastum ponunt g. fitz-williams sub gulielmo conquestore com. marescallum angliae . johannes marescallus . suggerere se videtur istiusmodi quispiam in testatione brevis cujusdam regis henrici i. quod in registro veteri ecclesiae cathedralis norwicensis legitur , numero xv. h. rex anglorum , rogero costard & brumam fil . waring , & edwardo salutem . praecipio , &c. quod monachi de norwic , &c. t. johanne mar. ( lego marescallo ) apud theotford . gilbertus ( à forti arcu cognominatus strangbow ) secundus filius gilberti comitis clare , creatus fuit comes palatinus penbrochiae ann●● . regis stephani , & marescallus fuit palatii regis ; obiitque an. . regis ●tephani . sepelitur in abbatia tinternae . [ quaere : nam hic in petitione margaretae filiae primogenitae & cohaeredis thomae de brotherton comitis norfolc . exhibita , in coronatione ric. ii. dicitur fungi officio marescalciae in coronatione henrici ii. ut post aliquot in marescalcia henrici de percy latius patebit . ] ricardus de hu●ez sub hoc tempore , viz. sub henrico ii. dicitur in chron. abbatiae de bello , tribunus regis . richardus comes pembrochiae , & striguliae , &c. fortissimus regni lemstriae apud hibernicos subactor , dominus marescallus & saevissimus teneri atque unici filii exenterator , quod ab hostibus oppressus in patrium confugit praesidium . sepultus kilkenniae an. ● . dubliniam à sidneio prorege transfertur , monumentoque donatus in ecclesia s. — , dislectum praebet a latere filium , ut aliquando vidimus . willielmus marescallus regis , filius johannis , & gilberti nepos , accipiens in uxorem ex tutelari dono regis richardi i. isabellam filiam & haeredem dicti richardi comitis penbrochiae , a johanne rege in die suae coronationis penbrochiae comes instituitur , & marescallus angliae , ut quidam perhibent . mihi autem non videtur hoc gavisus titulo . nam mat. paris auctor coaetaneus , eum omni laudum genere prosequitur , magnumque appellat marescallum , sed ( quod memini ) non angliae , verum regis , marescallum . erat praeterea custos regis & regni , necnon summus angliae justitiarius ; ubi plura quaepiam de illo annotavimus . placeat hic tamen repetitum ejus epitaphium : sum quem saturnum sibi sensit hibernia , solem anglia , mercurium normannia , gallia martem . obiit an. . . henr. iii. & sepultus est in novo templo . kal. apr. relicti● , praeter . filias , totidem filiis , qui in marescalciam caeterasque dignitates succedentes omnes , omnes sine sobole excesserunt , viz. willielmus marescallus , qui secundi nuptiis eleanoram duxit filiam regis johannis . obiit . apr. . . henr. iii. ricardus marescallus secundus filius , anglicarum libertatum audacissimus assertor ( ut habet matthaeus parisiensis ) in hibernia fortiter occubuit , . henr. iii. gilbertus marescallus tertius filius ( clericali titulo primum addictus ) duxit margaretam sororem wil. regis scotiae , & in hastiludio hartfordiae ab effraenato sui ipsius equo interficitur . kal. julii , an. dom. . . henr. iii. mat. paris . hunc comitem marescallum ibidem vocat ( pa. . ) sepelitur in novo templo londoniis . stow in an. . henr. iii. dom. . walterus comes marescallus ( quartus filius ) viam universae carnis ingressus est pridu nonas decembris aut ut alii volunt ) octavo calend. decembris , &c. ●nquit pari●ius in an. dom. . pa. . ) id est . ( vel ut alii volunt ) ● . henr. iii. anselmus comes marescallus , quintus filius willielmi magni marescalli , obiit . decembr . id est . ( ut quidam perhibent ) post fratrem die , quinis suis sororibus haereditatem cedens herciscendam . rogerus bigot , quartus comes norfolciae illius cognominis , hoc deinceps modo in marescalciam successit . hugo bigot pater ejus , comes norsolciae , vel ( ut parisius habet ) orientalium anglorum ; duxit matildem primogenitam dictarum cohaeredum , & obiit anno . henr. iii. domini nostri . ( ut refert parisius pa. . ) omnibus uxoris suae fratribus jam tunc viventibus ; & marescallus ideo jure uxoris ( ut quidam innuit ) non potui● salutari . extincto autem anselmo fratrum novissimo , anno . vel . henr. iii. divisaque anno . inter sorores immensa ejus haereditate , marescalcia angliae ( cum manerio de hemsted in comitatu berceriae , cui è tenura id incumbit officium , & latifundiis annui simul valoris . librarum ) in matildis cessit portionem . marescalciam in eodem statim anno , cum illius virga dignitatis , filio suo rogero supradicto contulisse dicitur . mat. par. in an. . qui . & . henr. iii. eodem ( inquit ) anno , multiplicatis intercessionibus , concessa est marescalcia cum officio & honore , comiti rogero bigod , ratione comitissae filiae comitis magni willielmi marescalli primogenitae uxoris suae . cave : legendum videtur matris suae : nam hugo pater ejus filiam duxit primogenitam willielmi magni marescalli , ut supra declaravimus ; ipse vero isabellam filiam willielmi regis scotiae , & in hastiludio conquassus expiravit sine prole , an. . stowus anno . parisium secutus , rogerum duxisse ait filiam marescalli : perperam . rogerus bigot , ex hugone fratre justitiario angliae rogeri nepos in norfolciae comitatum & marescalciam angliae succedebat . hic cum regi edouardi i. in auxilium comitis flandriae profecturo militiam contumacius detrectasset ; regem postmodum ad gratiam ejus redintegrandam , haeredem scripsit ; sponte tamen an coactus , non satis liquidum . sunt enim qui obaeratum eum ferunt fratri suo johanni , expertemque liberorum eidem cedere post dies suos patrimonium statuisse . fratre vero nimia deposcente debitum importunitate , indignantem convenisse cum rege anno . hunc & leniret , illum ut perderet . regi patrimonium cum marescalcia transcribendum . ea tamen conditione , quod appositis annui valoris mille marcarum praediis , rex ei norfolciae comitatum & marescalciam angliae ad terminum vitae suae concederet ; necnon & soboli , si futura contigeret ; regi alioquin remansuram : & debita rex praeterea solveret . pactum alii impositum perhibent . comes vero intra quadriennium moritur sine prole an. . . penultimo vel antepenultimo regis ; praeteritoque fratre , pacta ad regem deferuntur . walsinghamus hunc non semel comitem marescallum nuncupat , ( pa. . l. . & . l. . ) ut matthaeus parisiensis gilbertum comitem marescallum ; & willielmus marescallus appellatus erat comes , tempore henr. ii. non tamen cinctus fuit gladio comitatus striguil . donec rex johannes hoc ei praestitit in coronatione sua : sic & gaufridus fitz-peter gladio comitatus essexiensis ( vid. hovd . pa. . l. . ) cum tamen comitis titulum ex concessione principis nondum assecuti essent marescalli ; exemplo tribunorum scholarum in jure civili , tribunus militum ( qui nunc marescallus dicitur ) nomen & honorem comitis signavit . ( vid. cod. tit. de comitibus & tribunis ; & p. tribuni scholarum . ) robertus de clifford : cui rex edw. ii. anno regni . officium contulit marescalciae angliae ; ut patet pat. p. . m. . nicolaus de segrave eodem constitutus anno , durante regis beneplacito . pat. p. . m. . thomas de brotherton , quintus filius edouardi i. & secundo natus toro , creatus est comes norfolciae ab edouardo ii. fratre suo ex parte patris , . dec. anno . dicti edouardi ii. & marescallus angliae . febr. anno ejusdem . tenend . dignitatem primam , sibi & haeredibus suis de corpore suo , &c. alteram , sibi & haeredibus masculis de corpore suo legitime procreatis ; ut testatur charta regia eandem concedens in haec verba — dilecto & fideli nostro thomae de brotherton comiti norfolk . fratri nostro charissimo marescalciam angliae cum omnibus ad marescalciam illam pertinentibus . habendum & tenendum sibi & haeredibus masculis de corpore suo legitime procreatis , &c. faciendo inde nobis & haeredibus nostris servicia quae progenitoribus nostris inde debebantur , antequam eadem marescalcia ad manus domini e. quondam regis angliae patris nostri , per donationem & remissionem rogeri le bygod quondam comitis norff. & marescalli angliae d●venit , &c. dat. per manum nostram apud lincoln . . die febr. anno regni nostri nono . obiit hic thomas anno duodecimo edw. iii. gratiae . relicta sobole , edouardo , margareta , & alicia . edouardus comes norfolciae & marescallus angliae , pupillari moritur in custodia ; trans●unte ad sorores patrimonio . willi●●m●s montacute . vincent . pa. . thomas beauchamp decimus quartus comes warwic . anno . qui respicit annum . & initium . edwardi tertii , factus est ( inquit yorckus , pa. . ) marescallus angliae ab edouardi iii. durante placito . obiit . ●jusd . edward● ▪ [ vide : nam hoc non convenit cum ultimis supra . ] ( spelm. ) rogerus mortimer comes marchiae . marescallus erat angliae . edw. iii. ut patet original . . ed. iii. rot. . thomas be●uchamp comes warwicensis , ad placitum . dat. . octob. ● . edw. iii. pat. p. . m. . edmundus mortimer , comes marchiae , sub annis novissimis edwardi iii. angliae fru●tur marescalcia ; sed quo nixus jure , nondum reperi . anno vero domini . regis edw. iii. . jussus a johanne duce lancastriae ( qui jam torpente sen●o rege primas obtinuit ) ut tuendae calisiae gratia in partes cederet transmarinas ; veritus machinationis quidpiam sibi impendere , marescalc●● virgam cum officio duci reddidit . is laetanter hanc accipiens , ●am protinus familiari suo henrico de percy ( quem hotspur appellabant ) tradidit . stow. ibid. — dicitur marescallus angliae in commissione in casu judicandi inter thomam moore & rad. basset concessa guidoni brian & richardo stafford , anno . edw. iii. pat. p. . m. . dors . henricus percy sic ut diximus marescallus salutatur anno . edw. iii. jam tum languescentis & anno proximo morientis . henricus de percy non de jure , sed ● regis beneplacito designatus est in coronatione richardi secundi , marescallus angliae ; pendente tunc de jure controversia . margareta quippe filia primogenita & haeres altera dicti thomae comitis norfolciae in processu facto ad istius regis coronationem , petitionem hanc exhibuit . a tres honore seigneur le roi de castele & de l●on duc de lancastre & seneschall d ▪ engleterre , supplie margarete file & h●●re thomas de brotherton nadgairs counte de norff. & marescall d' engl●terre d estre acceptee al office de marescalcie ore al coronement nostre seigneur le roy , come a son droit heritage apres la mort le dit thomas son piere , fesant l' office per son depute , come gilbert mar●schall counte de strogoile fist al coronement le roy henry s●cond . c●st assauoire d● p●ser debatz en meson le roy au jour de coronement , & ● faire liveree des h●rbergages , & de garder les oesses del chambre l● roy , pernant de chescun baron & counte ●at●z chiualer a c●l jour , un palfrey one une selle . sup●r quo ( inquiunt membranae regiae ) audita petitione praedicta , dictum fuit pro domino rege i●idem : quod officium illud in persona domini regis in feodo remansit , ad assignandum & contulendum cuicunque ipsi regi placeret : & super hoc auditis tam pro domino rege quam pro praefata comitissa pluribus rationibus & allegationibus in hac parte , pro ●o quod videbatur curiae , quod sinalis discussio negotii praedictis , propter temporis brevitatem , ante coronationem praedictam fieri non potuit ; henricus de percy ex assensu & praecepto ipsius regis assignatus fuit ad officium praedictum faciendum , percipiendo feoda debita & consueta , salvo jure cujuslibet , & sic idem henricus officium illud perfecit . hac scilicet vice ; non diuturnus marescallus . sed quaere , quo margareta nitebatur titulo , cum officium patri suo & haeredibus de corpore suo tantum masculis ut supra patet ) conferretur ? jo. fitz-a●an dominus maltravers . — tho. ho●land — sub ultima medietate junii , cum rex gulielmum walworth praetorem ●ondinensem equ . auratum constituit , creavit etiam ( inquit stowus ) super monte versus iseldoune comites marescallum & penb. ( pa. . ) ( quaere , quis hic fuit ? ) thomas dominus de moubray , filius ( & post mortem johannis fratris sui ) haeres elizabethae utriusque corum matris , filiae & haeredis johannis domini segrave & margaretae praedictae ducissae norfolciae , filiae & haeredis tho. de brotherton praedicti ; creatus est à ric. ii. anno regni sui . comes nottingham . et cum huc usque , domini tantum marescalli in chartis regiis nuncuparentur , iste * primus per chartam ejusdem regis , dat . . jan. regni . titulo investitus est comitis marescalli angliae , tenendum sibi & haeredibus masculis de corpore suo exeuntibus . anno deinceps . ejusdem regis , evectus est in aviae dignitatem , ducem scil . norfolciae : sed haud multo post in exilium relegatus , venetiis obiit , an. . . henrici iv. suscitavit prolem , thomam , johannem , isabellam , & margaretam , omnes marescalciae functos dignitate , vel in seipsis , vel in sobole . thomas holland comes cantii , filius thomae holland comitis cantii , & fratris uterini regis ricardi ii. ab eodem rege anno regni sui . creatus est dux surriae : & ad cognoscendum de lite militari jam tum exorta inter henricum ducem herefordiae , appellantem ; & thomam moubray ducem norfolciae comitem marescallum angliae , partem ream ; mox itemque factus est hac vice marescallus angliae , aumarliense duce tunc agente constabulario . york , pag. . . & . hol. . b. . . b. . jo. montague comes sarisburiensis . thomas moubray , mortuo in exilio patre , dux norfolciae & comes marescallus angliae salutatur . sexto vero anno henrici iv. capite mulctatus , sine prole excessit . radulphus nevill comes westmerland . . ric. ii. & richmundiae . henr. iv. fuit comes marescallus angliae . obiit . henry vi. . york . — vincent . pa. . tho. erpingham commissarius ad exequendum officium marescalli angliae . pat. p. . m. . johannes mowbray , thomae senioris secundus filius restituitur comes nottingham & comes marescallus angliae , anno primo henrici v. & deinceps anno tertio henrici vi. dux norfolciae in parliamento restitutus est . obiit anno domini . ut york dicit pa. . vel an. . ut dicit pa. . vid. vincent . ibid. johannes mowbray filius dicti johannis , dux norfolciae & comes marescallus angliae , fato cessit anno primo edwardi iv. domini nostri . thomas holland , marescallus angliae , durante minore aetate dicti johannis ; factus anno . henrici sexti . pat. p. . m. . johannes mowbray , vivente patre suo , creatus est ab henrico vi. comes warren . & surriae , eidemque morienti successit dux norfolciae & comes marescallus angliae . interiit an. dom. . . edw. iv. unica suscepta filia & haerede , anna nomine . ricardus dux eboracensis secundus filius regis edouardi iv. duxit praedictam annam , filiam & haeredem ultimi johannis mowbray , & jure ejus , fuit comes marescallus angliae , quod haec dignitas ad foeminas transiit haeredes de corpore thomae mowbray ; non autem dux norfolciae , quod haec tantum masculis cedebatur . iste dux ricardus cum fratre suo rege edouardi v. à ricardo duce glocestriae avunculo eorum , nefandissima in turri londinensi morte obruitur , an. dom. . nullaque suscitata prole , ipsa etiam anna extinguitur . gulielmus dominus berkeley , filius jacobi domini berkeley & isabellae uxoris suae , filiae thomae domini mowbray ducis norfolciae , primi comitis marescalli angliae ; anno . ric. iii. factus est comes nottingham & comes marescallus angliae ; & . henrici vii . marchio de berkeley . exhalavit sine prole , anno . ejusdem regis henrici . johannes howard eques auratus ( filius roberti howard equitis aurati & margaretae uxoris suae , filiae & demum cohaeredis thomae mowbray senioris ducis norfolciae & primi comitis marescalli angliae , utpote consanguineus & alter haeredum dictae annae ducissae eboracensis ; ) constitutus est a richardo iii. dux norfolciae & comes marescallus angliae : proque rege suo fortiter dimicans in bosworthensi praelio , una cum eodem , votis & fato conjunctus , interfectus est . extincto autem ad hunc modum , ducatus ejus norfolciae & marescalcia angliae ad fiscum rediguntur ; filiusque ejus & haeres thomas howard ▪ qui a richardo iii. eodem tempore factus est surregiae comes , quo & pater dux norfolciae ) licet jure gentium & naturae , domini sui regis & patris signa insecutus esset , a victore tamen rege henrico vii . arce londoniensi mancipatus coërcetur ; sed nullo interea marescalciae designato . tho. howard tertius dux . tho. howard , heros fortissimus ( quem ut verbo non transeam virtuti sacrum prohibet ) creatus est surriae comes a richardo iii. cum & joh. pater ejus in ducem promovetur norfolciae . ipsis vero rege & patre in bosworthi praelio corruentibus ; hic inter medias acies virtute dextrae sospes emicuit . captus autem a victore rege henrico septimo , in arcem londinensem detruditur : sed ob eximiam probitatem , prudentiam , & fortitudinem , ab eodem henrico post triennium evocatur ; & ad debellandum hostes suos in praelia lincolnense , — & bambregense emissus , omnia adeo strenue gessit , ut in tractu boreali tam ad compescendos provinciales quam ad scotos conterendos , vicarius regis designatur . hoc ut auspicatius exequeretur , in ipso utriusque regni limine se constituit ; anglis à tergo clypeum tutelarem , scotis à fronte gladium formidabilem . contritis his , & pacatis illis , ad regem gratus regreditur . fit angliae thesaurarius & ad paternam dignitatem comitis marescalli angliae restituitur . rex moritur ; succedit filius ejus henricus viii . qui in galliam , cum illustri exercitu proficiscens , nobilitatem pene omnem una abducit . veteris autem hostis memor , comitem denuo praeficit cum armatis copiis tractui boreali ; ut quae in absentia sua moliretur scotus , praesto oppugnaret . rex scotiae jacobus quartus , ansam ex absentia regis tempestive comprehendendam ratus , angliam cum ingenti exercitu ingreditur . occurrit comes in limite : pugnatur acerrime . ruit scotorum exercitus atque una rex ipse , . episcopi , . comites , . barones , . equites aurati , minoris autem nobilitatis & gregariae multitudinis . cadentibus interea quamplurimis anglorum . captis deinde scotorum castris , cum machinis pyreis & suppellectili bellico , firmatisque omnibus ad regionis pacem conducentibus , londinum regreditur ; reversoque è gallia regi henrico inimici ( licet fratris conjugalis ) cadaver & opima spolia pacis & victoriae symbola proponebat . laetus rex è duplici palma ; illa quam à gallis ipsemet feliciter , ista quam à scotis comes fortissime detulit ; comiti reddit ducatum norfolciae ; latifundia confert : & ut ipse pariter & nepotes de tanta victoria triumpharent , emblema clypei interfecti regis in diagonio clypei howardotum gerendum perpetuo designavit . pace inter reges angliae & franciae composita , delegatur jam hic idem dux norfolciae in franciam , cum maria sorore regis henrici , regi franciae ludovico desponsanda . et transeuntibus deinde rege & regina angliae in aquitania , ad salutandum regem & reginam franciae ; hic totius angliae prorex constituitur , & mariae tutor principis infantulae . tandem à curia & consiliis regis per licentiam secedens octogenarius , residuo vitae pie ac placide exacto , in castro suo framingamiae migravit ad dominum . edouardus seimour dux somersetensis , à nepote suo rege edouardo vi. & thesaurarius factus est & marescallus angliae ; bellum jam adversus scotos sub initio regis suscepturus ; thoma duce norfolciae , priori marescallo , turri interea coërcito . johannes dudley dux northumbriae . thomas howard in avitos majorum titulos à regina maria post deliquium suscitatus , quartus dux norfolciae hujus nominis comes marescallus angliae efficitur . nuptias vero ambiens mariae reginae scotiae , cum à regina elizabetha prohiberetur , fataliter recidit . georgius talbot , comes salopiae , qui in proscriptione thomae ducis norfolciae novissimi , functus est officio magni seneschalli angliae ; post sublatum eundem , marescalli insignitur munere . robertus d' eureux , comes essexiae & augiae , vice-comes bourchier , multisque praeterea illustris dignitatibus . populi ab ephebis desiderium fuit , etiam aulae , & ipsius aliquando reginae elizabethae . in hispaniam missus cum exercitu , & una carolus howard baro effinghamiae magnus angliae admiralius , imperio pares , caletem diripiunt , spoliumque ingens referentes , hic nottinghamiae comitatu , ille comitiva marescalcia angliae ad vitae terminum insignitur . altero post haec anno , comes essexius in hiberniam prorex delegatur , ad tironensium motus compescendos . re vero parum integre administrata , reginae contrahit indignationem , quam ut mulceat , propere advolat : sed desperata spe , ad arma provocat ; & ausis decidens , mulctatur capite , . feb. . eliz. . sic ad fiscum rediit marescalcia . thomas howard è filio nepos thomae ultimi ducis norfolciae ( comes arundeliae & surregiae , comitumque omnium * britannicorum primicerius ; baroniarum onustus titulis , eques periscelidis , regiae majestati à consiliis , &c. heros natus ad ornamentum reipublicae , veteris exemplar prudentiae & romanae gravitatis ; ) donatus fuit avita comitis marescalli angliae dignitate & virga aurea , à jacobo rege , ad vitae terminum possidenda . de milite dissertatio . miles à mille , ut perhibent ; nec probo , nec corrigo . is autem est , qui in militiam legitime conscribitur : sed transfertur nomen ad civiles aliquot magistratus , officiales , ministros , famulos ; de quibus dicemus , cum militares absolverimus . conscriptio duplex , pl●b●●a , seu gregaria ; & honoraria . de gregario milite , plurimis licet honestato privilegiis in jure caesareo , nos hic non agimus . honoratus est , qui honoraria aliqua solennitate in ordinem ascribitur militarem . ejus multiplex in appellatio . brito in synonimis : miles , eques , tyro , tyrunculus , atque quirites , atque neoptolemus novus est regnator in illis . valla & plures alii decurionem nuncupari volunt : & addantur pari licent●a equitum romanorum antiqua nomina : celeres , sub romulo & regibus , a celeritate in praelio : flexumines , à flectendis equis milita●●bus ; qui & postmodum trossuli , quod sine peditum auxilio trossulum , urbem in tuscia , cepissent . adjiciatur & recentius è feudistis subvavasor ; ab anglo-saxonibus thanus , & quod thanum ( vernaculumque nostrum knight ) latine sonat , minister . de prioribus dicant academici ; nos de reliquis suo loco . nostra autem sic annectentur ad illa britonis : flexumines , celeres , decurio , trossulus olim , nuperius thanus , subvavasor , atque minister . miles vero , a militantibus in genere : eques , à specie ; quod equo merebat . valla tamen . miles ( inquit ) proprie qui pedibus militat , dicitur , eques , qu● equo . et dum militis nomen perperam his impositum causatur quos dignatione afficimus , eos mavult decuriones nuncupari ; quod duarenus nomen atque alii ad majores item villarum transferentes , vocem destituunt certa signicatione . vallae tamen approbat bebellius in commentariis de abusione linguae , & multa congerit adversus interpretes qui hos appellant milites : ut tiraquellus item vir doctissimus in consuetud . picta . tit. ● . § . ult . gloss . . tyro , miles novitus ; cujus tamen est ( ut docet cicero , tuse . . ) ferre labor●m & vulnus contemnere . tyrunculus , tyro rudior . quirites ; eur , non teneo : nullius enim ordinis suit ; sed commune romanorum nomen , à quirino , i. e. romulo . sed quirinus ipse , à quiris , hastam ▪ sabinorum lingua ) significante tanquam hastatus dicitur : ovid. fast . hasta , quiris , priscis est dicta sabinis . quirites igitur dicantur milites nostri , velut marti● & hastat● . certissimum est , vocem receptam est . hinc annis pro milite honorato ; ingulphumque saxonem ideo dixisse quiritem degenerem ut virgilius , degenerem neoptolemum ) pro milite non legitimo . neoptolemus enim à 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. novus & 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alias 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 bellum ; quasi 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 novus bellator seu miles novitius ; pyrrhoque achillis filio ideo impositum nomen , quod ad trojanum bellum ( a knight ) id est , puer venerat . et equiti adjungi solet aurati epitheton ; non ab aureis equitum romanorum annulis , ut multi suspicantur ; sed ab auratis calcaribus quibus insignitur denuo ( ut inferius dicemus ) eques hic noster . franciscus enim philelphus , qui floruit anno . ( eques ipsemet auratus ) appellationem primus comperit ; ut in lib. epistolar . . ca. . ad albertum parrisium profitetur . in hoc autem magis videatur necessarium , quod apud gallos , insigniores utique magistratus ( ut loysaeus mihi auctor est ) chevaliers ; apud neapolitanos , sui quique nobiles ( ut amiratus perhibet ) cavallieri , ( id utrisque est equites ) appellentur ; licet equestrem non obtinuerint institutionem . sed hos pariter auratos forsitan appellaverint . ( qu. ) ferunt etiam nonnulli ( mihi nescio an imponentes ) imperatorem aliquoties eruditionis & id generis causarum equites instituere , qui non habentur milites honorati : ut item comites inferioris gradus , de quibus diximus in suo loco : & professores similiter juris civilis dici equites auratos cum . annos in eodem studio emensi fuerint . sed haec ego per transennam , de exoticis . militem nostrum seu equitem auratum à romano equite non deducimus . ille totus olim ad militiam fabricatus est ; hic ad rem civilem pariter ; & sub consulibus , ex opulentia non virtute . quicunque enim . valebat sestertia , i. e. monetae nostrae veteris sterlingorum . novae . more & jure civium romanorum in equestrem ordinem conscribendus fuit . propinquior videtur , qui sub imperatoribus baltheo cinctus est militari : hic vero tunc cultus non tam dignitatis fuit , quam cujusque militis symbolum . adeo ut discinctus pro ignavo dicitur & exuto militia , & inter poenas militares graviores habita . virilis etiam toga non ad classem aliquam , sed adultos omnes pariter attinebat . ad germanos provoco , ut cum suos nobis in plerisque mores porrexerint , in hoc etiam auctores fiant . martis autem sic adibant limina . arma sumere ( inquit tacitus ) non ante cuiquam moris , quam civitas suffecturum probaverit . tum in ipso concilio , vel principum aliquis , vel pater , vel propinquus , scuto frameaque juvenem ornat . haec apud illos toga ; hic primus juventae honos : ante hoc domus pars videntur , mox reipublicae . locum non intelligo de ignobili ; sed de eo cujus foret & consiliis adesse principum , & de rebus tractare publicis . cum enim dixisset tacitus in praecedentibus : germanos nihil agere non armatos ; subjungit illico , sed arma sumere , &c. ut citavimus . ecce igitur germani militis instituendi formulam . primo , expetenda & expectanda civium approbatio : secundo , consilii sententia : tertio , symbolorum collator , qui est vel princeps aliquis vel magistratus honoris causa , vel pater aut propinquus mancipationis gratia . quarto , symbolorum ( id est scuti & frameae ) collatio . sic quinto , exultans telis concilio egreditur miles legitimus . eques autem , non pedes : nam scutum & framea sunt equitis armatura , & plane integra , non peditis ; ut superius ipse docet tacitus : eques quidem ( inquit ) scuto frameaque contentus est : pedites & missilia spargunt , pluraque singuli . hinc tyroni istiusmodi duplex appellatio : miles , à genere ; eques , à specie . latine utimur utroque vocabulo ; sed in vulgari idiomate galli , itali , hispani speciem tenent , sc . chevalier , cavalliere , cavallero , à latinoram caballo . germani , kitter , à ritten equitare . angli vero priscum secuti saxonicum , knighte dicimus , quasi famulum seu ministrum militiae . saepe conspicitur antiquae institutionis specimen in sigillis anglo-normannorum usque ad aetatem — , ubi eques exhibetur , scutum ad pectus , frameam gestans ab humero dextro . et originis vestigium in conferendis feodis militaribus ; quae alias hastae traditione , alias baculi velut hastae , in jure feodali transferuntur . solebant enim magnates latifundia sua in portiones dispartiri ( quae feoda vocant ) ad alendum singulos milites ; easdemque ob servitium & subsidium in bello clientibus suis hoc modo concedere ; adjuncto insuper annulo , ad notandum ( reor ) fidelitatis sacramentum , quo vassallus domino ratione feodi tenebatur . admissos sic in militiam suam suos milites appellabant ; etiamsi nunquam in militiam progrederentur sed vicarios mitterent . hujusmodi fuisse eos censeo , de quibus in priscis nostris annalibus anglicanis saepe legitur , talem venisse tali expeditione cum . vel . knights in comitatu suo . quidam male intelligunt de equitibus auratis ; quidam verisimilius de militibus gravis armaturae , quos gallli homes de armes appelant . tuo utere judicio . hi vero non videntur olim aliquando prioribus illis inferiores , cum & in domini sui militiam baculi & annuli ceremonia admitterentur ; tum & patrimonium una acciperent variis nobilitatum privilegiis ( ut supra videas in feodum ) quo militarem dignitatem splendidius tuerentur . hoc enim patrimonium , feodum nobile dicebatur ; quod ad nobiles solum , non ad rusticos , non ad burgenses vel opifices transmigraret . galli igitur milites antiquos dividunt in chevaliers , bannerets , & bacheliers : cujacius exponit , equites , mello equites , & vasellos sive vasallos : nisi malis ( inquit ) a buccellariis ducere ; quod equidem non probo . teneat potius primam sententiam , bacheliers idem esse quod vassallos , i. e. milites feodales ; non quod meam tueatur assertionem , sed quod ipsa res hoc loquitur , bacularios seu bacillarios non minus dici à baculo seu bacillo feodali ; quam banneretti , à bannerio ; equites ab equo ; feodalibus . qui igitur fit , ut caeteri equites ( nam hi etiam equo merebant ) feoda non dotati , bacularii nuncupentur ? forte baculo etiam velut hasta in militiam aliquando admitterentur ; vel ex errore natum , pauciores in plurimorum transisse appellationem , differentia ab auctoribus non bene observata . nam germanis utique multos dici censeo fanlchen , i. e. vexilliferos , qui vexillo non suscipiunt hodie dignitatem . ( quaere . ) cum autem militis instituendi ratio , alia non esset , quam honoraria candidati seu tyronis in militiam ( ut praefati sumus ) susceptio : praestari solita est apud omnes populos vel armorum aliquid conferendo , vel ceremoniam aliquam ad militiam pertinentem adhibendo . romani , sub imperio , cingulo usi sunt militari . germani veteres ( ut supra declaravimus ) scuto & framea . longobardi arma integra largiuntur . sic turismodus rex alboinum , regis audoini filium , turismodi filii sui armis insignibus donat . paul. diac. longob . . ca. . salici , baln●o usi sunt ; cum aliquo genere armorum , & ritu sacro . baln●o scil . ut purgati intelligerentur à spurcitie corporis & animae . du tillet p. . &c. anglo-saxones gladium ad altare consecratum à candidati collo suspendunt . de aetate militari . aetas militaris , quae romanis virilis dicitur , in exitu anni . pueritiae apud ipsos habita est ; togamque ideo virilem ( ut germani olim arma militaria ) non sine religionis ceremonia concedebant ; ut mox videbitur . de germanorum ritu , copiose admodum ex ipso tacito in praecedentibus . apud recentiores , carolus magnus ludovicum filium suum jam appellentem adolescentiae tempora , ense accinxit . aluredus nepotem suum aethelstanum puerum adhuc praemature militem fecit . henricus i. gaufridum comitis andegaviae filium , adolescentiae primaevo flore vernantem , quindecim annorum armis induit . quid plura ? legitima hinc aetas militaris apud nos habetur annus decimus-quintus ; nec auxilium igitur ad faciendum filium suum militem quisquam à subditis deposcat feodalis dominus , ne quidem rex . valet tamen junior factus . rex edourdus vi. anno aetatis decimo ; henricus vi. quinto ▪ prandens olim aliquando dubliniae juvenis apud d. proregem hiberniae , vidi tenerum quendam adolescentulum prae militibus aliquot antiquis accumbentem ; nuntiatumque mihi est , ni memoria meretrix , eundem ipsum fuisse quem prorex alius è sacro fonte susceperat , & in cunis statim militem fecerat , dum apud patrem infantuli fortuito hospitaretur . facto perhibet authoritatem , quod in juris nostri legitur annalibus . audivi ( inquit thirning justitiarius . henr. iv. fol. . ) magnatem quendam , filium quem susceperat , ad sacrum deportasse fontem , arreptoque statim gladio , baptizatum , militem fecisse , anglice hoc adjiciens , probus si poteris esto miles , armiger vero nunquam fueris . ●ec mirum hoc in secularibus ministeriis ; cum in ipsis ecclesiasticis , hugo filius hereberti comitis admodum juvenis parvulus , qui nec adhuc quinquennii tempus explesse videbatur , in amplissimum remensem episcopus electus esset . quantulacunque autem aetate factus est quispiam miles , liber evadit à domini feodalis potestate quoad corporis sui ditionem , quam custodiam vocant . et peti videtur mihi ratio à majoribus nostris germanis , quam expressit tacitus : ante hoc , domus pars videtur ; mox reipublicae . de evocatis ad militiam suscipiendam . antiqui juris est , ut in regia coronatione aliisque nonunquam solennibus , rex breve suum unicuique vice-comiti mittat ; praecipiens , ut submoneat omnes in comitatu suo , qui censu funguntur militari & non sunt milites , quod tali die ad regis se praesentiam sistant , militarem suscepturi dignitatem . census hic sub normannicis nostris regibus , . libris aestimatur ; sub henrico iii. decem primo , deinde quindecim . sub edv. i. viginti : hodie , quadraginta . excipiuntur tamen ab hac angaria in stat. — edw. i. qui vel morbo diuturno , vel aere alieno , vel prole laborant numerosa . brevis haec est forma : rex vice-comiti norfolciae salutem . praecipimus , &c. proclamatur & de more per comitatum : sed venientibus & non venientibus à carolo rege evocatis sors plerumque eadem . nesciebant enim qui venerunt , ubi suam exhiberent praesentiam , eandemve facerent recordari . opinantur quidam coram baronibus in scaccario , quidam apud comitem marescallum , quidam apud magnum camerarium angliae ; & dum caligant singuli , deviant omnes . tandem enim definiri perhibent , in cancellaria registrandam . verba autem brevis sunt , coram regis praesentia ; & dum regium sic opperiuntur otium atque bene-placitum , facultatum partem non exiguam , forte etiam & aevi minuant . vice-comites autem summonitorum nomina baronibus exhibent scaccarii , hi vi●issim commissionariis à rege delegatis , ad componendum statuendumque de animadversione pecuniaria , in evocatos ( velut contumaciae reos ) sigillatim imponendae ; quam si ( gravem licet ) non admiserint , vel subterfugiendo detrectaverint , è terrarum suarum usu fructibus ( quos exitus vocant ) barones scaccarii regi addicunt . primo termino s. secundo l. tertio l. quarto l. quinto l. atque ita pro arbitrio assurgentes . fuit retroactis seculis animadversio à commissariis imposita , satis levis ; sed hodie gravis admodum : tenuis enim fortunae viri , olim . . . solidis plectebantur : hodie , libris totidem ; et ditiores nonnulli ducentis , trecentis , quadringentis . de modo creandi militem honoratum : & primum de cingulo militari . cum in creando milite maxime olim esset necessarium officium cinguli ; de cingulo quidpiam praelibandum . ejus triplex genus : civile , zona ; militare , baltheus ; mixtum , cingulum indefinite . hinc varro zonam inter vestimenta refert ; baltheum inter arma . cingulum utrisque convenit , & est tam dignitatis & magistratus , quam militiae symbolum ; & à trojanis seculis honorarium , ut homero passim . romani veteres equitem honoratum instituebant equo & annulo aureo à censore datis : inferiores , milites qui à caesaris erant comitatu , cingulo donabant , quo à caeteris innotescerent militibus . fuit autem hoc è corio atque inde baltheus nuncupatum : nam balgh & beltz germanis pellem significat ; ut item ( quod galli dicunt pro baltheo ) baudeier , l in u & t in d mutatis . romanum enim nihil censeo genuine quod per th scribitur . huc autem id propertii lib. . eleg. . praebebant caesi baltea lenta boves . balthei seu cinguli militaris officium fuit , munire , ornare , distinguere , legionem notare , & arma sustinere . . munire ; ideo late compositum , aliasque bullis , alias laminis ( ne distringeretur ) firmatum . virgil. aen. lib. . — humero cum apparuit ingens baltheus , & notis fulserunt cingula bullis pallantis pueri . — humero ( inquit ) ut alibi : tum lateri atque humeris tegeaeum subligat ensem . . ornare ; pro fastu militari & lateris dignitate , auro , gemmis , & insigni opere . — virgil. aen. . — rhamnetis & aurea bullis cingula — passim homerus ; & supra modum odyss . xi . sed inferiores intuere . luithprandus hist . lib. . ca. . boso mirae longitudinis & latitudinis habebat balteum , qui multarum & preciosarum splendebat nitore gemmarum . . distinguere : aliàs personas , ut atridarum apud homerum aurea balthea : hectoris , puniceus : diomedis , discolor . aliàs dignitates & magistratus : ut in vet. epigramm . val. probi annot. aulica quippe comes rexi patrimonia clarus , et mea patricio fulserunt cingula cultu . hinc in epilogo edicti theoderici regis italiae , cingulum pro magistratu ponitur . nec cujuslibet dignitatis , aut substantiae , aut potentiae , aut cinguli , aut honoris persona ; contra haec — esse veniendum . et apud suidam , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. cingulum tropice pro facultate ( seu authoritate ) capitur , quod cincti ad rem gerendam sunt expeditiores . inde crebro in canonibus , judex cinctus . erat namque cingulum tam palatinae quam armatae militiae insigne . ideo apud cassiodorum & jurisconsultos pro magistratu dicitur & ejusdem administratione . variar . lib. . formul . . otiosi cinguli honore praecincta dignitas , i. e. magistratus citra molestiam dignitas . et imperator inferius judices admonens de laudabiliter se gerendo : grave ( inquit ) pondus invidiae est , splendere cinguli claritate , & morum lampade non lucere . . legionem notare : isidorus origin . lib. . ca. . baltheus cingulum militare est dictus , propter quod ex eo signa dependent ad demonstrandam legionis militaris summam , id est , sex millium sexcentorum ; ex quo numero & ipsi constituunt . . arma sustinere : ensem & clypeum ; & singulare singularem ; de quibus multa homerus , qui & de thoracis baltheo meminit , ajacemque hectori baltheum cum ense dedisse , iliad . . sidonius arvernorum episcopus , qui floruit an. dom. . suo aevo hos cultus attribuit , in panegyr . ad anthem . aug. car. . pectora bis cingunt zonae . — et supra , bullis hostilibus asper applicat à laeva fulgentem balteus ensem , inseritur clypeo victrix manus , &c. romanis siquidem frequens , ut pluribus obiter hic inferius . de recentioribus etiam bartholinus austriad . lib. . et mos gemmato mucronem annectere balteo . sic à veterimis seculis ad nostram aetatem ( qua maxime floret ) perductum vides cingendi hunc morem : de quo dicam ut martialis , de parazomio : militiae decus hoc & grati nomen honoris , arma tribunitium cingere digna latus . hinc cingulum velut militiae dignitatumque compendium , in eisdem conferendis optatissimum . frisones , cum cinctura gladii colaphum impingunt : & hoc à carolo magno eorum praesidi concessnm ferunt in quadam constitutione ; ubi de militibus agens : eis gladium ( inquit ) circumcingat ; & dato eisdem , sicut consuetudinis est , manu colapho , sic milites faciat , eisdemque firmiter injungendo praecipiat , ut deinceps more militum sacri imperii aut regni franciae , armati incedant — qui frisones signum suae militiae a dicta potestate ( i. e. praeside ) recipere debent ; in quo corona imperialis , in signum suae libertatis à nobis concessa , debeat esse depicta . ex francis . mennenio tit. ha . . anglorum erat consuetudo , ( non ingressis adhuc normannis ) quod qui militiae legitime consecrandus esset , vespera praecedente diem suae consecrationis , ad episcopum vel abbatem , vel monachum , vel sacerdotem aliquem , contritus & compunctus de omnibus suis peccatis , confessionem faceret ; & absolutus , orationibus & devotionibus , & afflictionibus deditus , in ecclesia pernoctaret in crastino quoque missam auditurus , gladium super altare offerret , & post evangelium sacerdos benedictum gladium collo militis cum benedictione imponeret : & communicatis ad eandem missam sacris christi mysteriis , denuo miles legitimus permaneret . haec ingulphus saxo , p. . sic fortissimus herewardus ( qui normannis tantam facessivit operam ) miles factus est . hanc tamen consecrandi militis consuetudinem aspernati sunt normanni , nec militem legitimum talem tenebant , ( inquit ingulphus ) sed socordem equitem & quiritem degenerem . et quorsum , obsecro ? num quod ab ecclesiasticis acceperint dignitatem , non à viris militaribus ? certe gulielmus rufus ( qui postea rex evasit ) non a patre suo gulielmo i. rege angliae , sed à lanfranco archiepiscopo cantuariae , in vita patris , miles factus est , ut malmesburiensis & parisius testantur . num quod ab altari susceptum gladium ? prequens inter ipsos anglo-normannos ritus sub henrico ii. ut perspicue refert auctor coaetaneus petrus blesensis , epist . . sed & hodie ( inquit ) tyrones , enses suos recipiunt de altari . et rationem adjungit , ut profiteantur se filios ecclefiae , atque ad honorem sacerdotii , ad tuitionem pauperum , ad vindictam malefactorum , & patriae liberationem , gladium accepisse . quomodo tuebantur professionem ? male , ( ut hodie ) quod pluribus blesensis . num denique , quod in ecclesia pernoctarent vigilantes & paenitentes ? sospitavit equidem & pius hic usus ad edouardi i. saeculum , ut è florilego deinceps videris . carolus magnus , an. . ludovicum filium suum jam appellentem adolescentiae tempora ranespurgi ense accingit . theganus episc . trever . de vita lud. pii , pag. . ludovicus ipse imperator jam factus filium suum carolum [ calvum ] armis virilibus , id est , ense cinxit , corona regali insignivit , &c. idem pag. . & aimoin . lib. . ca. . alfredus rex anglorum aethelstanum suum e filio nepotem puerum adhuc praemature militem fecit , donatum chlamide coccinea , gemmato baltheo , ense saxonico cum vagina aurea . malm. gest . reg. lib. ii. ca. . pa. . henricus iii. anno . ad natale domini , baltheo ( inquit parisius ) apud eboracum donavit militari [ alexandrum ] regem scotiae , & cum eo tyrones fecit ▪ . qui omnes vestibus pretiosis & ●xcogitatis , sicut in tam celebri tyrocinio de●uit , ornabantur , pag. . intelligo , à rege datis ; nam sic idem auctor in anno — . et cum legati nepotem cingeret , . lib. annuatim redditas ei dedit haereditario , & cuidam alii censum pariter opulentum , pag. . edwardus i. ter centum simul preciosis donat vestibus , nec dignitatem tamen confert , donec in templo nocte peregissent vigilias , ut è florilego videmus . pluries citaturus sum locum ; semel habeatis integrum . ad augmentandum igitur ( inquit ) profectionem suam in scotiam , fecit rex per angliam publice proclamari , ut quotquot tenerentur fieri milites successione paterna , & qui haberent unde militarent , adessent apud westmonasterium in festo pentecostes , admissuri singuli omnem ornatum militarem praeter equitaturam , de regia garderoba . confluentibus itaque . juvenibus , filiis comitum , baronum , & militum , distribuebantur purpura , byssus , syndones , cyclades auro textae , effluentissime prout cuique competebat . et quia palatium regale etsi amplum , tamen ad tot occurrentium turbam angustum fuit , apud novum templum londini , succisis lignis pomiferis , prostratis muris , erexerunt papiliones & tentoria , quo tyrones deauratis vestibus se singuli decorarent . ipsa quoque nocte in templo praedicti tyrones , quotquot poterat capere locus ille , suas vigilias faciebant . sed princeps walliae , praecepto regis patris sui cum praecelsis tyronibus fecit vigilias suas in ecclesia westmonasteriensi . — die autem crastina , cinxit rex filium baltheo militari in palatio suo , & dedit ei ducatum aquitaniae . princeps ergo factus miles , perrexit in ecclesiam westmon . ut consocios suos militari gloria venustaret . — princeps autem propter turbam comprimentem non secus sed supra magnum altare , divisa turba per dextrarios bellicosos , socios suos cinxit . mat. westm . an. . pa. . sine ut hic breviter notem adnotanda . profectionem ] quam sub quindena s. johannis sequenti rex iniit ; & multis in scotia truculenter gestis , carleoli obiit anno proximo , i. e. . proclamari ] non in forma juris per breve regium vice-comitibus directum , ut non venientes mulctarentur ; aut non venientes & non obtinentes dignitatem , finem , i. e. animadversionem regi solverent pecuniariam . tenerentur ] tenebantur olim omnes liberi homines militare . successione paterna ] ergo filius & haeres militis , qui patri successurus erat in haereditate , ex jure miles etiam faciendus erat . vnde militarent ] licet ex patre milite non esset oriundus ; tamen si haberet unde se in militia sustineret , suscipere tenebatur dignitatem . et hoc quidem olim fuisse videtur praedium . lib. sub ingressu normannorum . pentecostes ] unum è tribus majoribus festis , quibus prisci reges prodire solebant coronati ; convocatisque regni magnatibus , de arduis consulere & statuere . admissuri ] suscepturi . garderoba ] vestiarium . graecis inferioribus 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 à veste germanorum roch. ¶ [ reliqua pars commentarii desideratur . ] galli praeter cingulum seu baltheum , gladium adhibent & aurata calcaria , nihil sacri interposito . bartholin . austriad . . pa. . et mos gemmato mucronem annectere baltheo . recentiores plerique nullum tradunt symbolum ; sed gladio delibant alii scapulas & pectus candidati , alii humerum velut percutientes tangunt , dicentesque sois chevalier , au nom de dieu , gladium apponunt osculandum . qui humerum feriunt , colaphum impingentium tenent rationem ; candidato velut interminantes , ut deinceps nunquam ictum ferat inultus . vidi aliquando senem ephaebo filio sic primum porrigentem gladium . sed hoc gentilium more , non christianorum ; è quibus ictus olim aliquando miles , respondit , non verbera tulissem , si non essem christianus . qui olim fiebant milites . fiebant olim milites ex solis militibus vel militiae candidatis ; non servis quantumvis eximiis , non colonis , non rusticis , non burgensibus , non mercatoribus , vel togatis . non servis . hinc regis filium carpit virgilius aen. — quorum primaevus helenor , maeonio regi quem serva licimnia furtim sustulerat , vetitisque ad trojam miserat armis . vetitis ( inquit ) armis : quod helenor licet regis filius , ex serva tamen natus , servus esset : servisque jure militari vetitum fuit arma ferre . sic mercatoribus atque rusticis , sub quorum appellatione burgenses veniunt , & coloni , l. julia de vi publica , & constitutione frederici imp. lib. . feud . togatis ; quod in scholis suam habuere militiam , suas dignitates . a veterum enim moribus alienum fuit , ad gradus provocare suae professioni non competentes . doctorum primus , quos invenerim , in militiae dignitatem conscriptus est bartholus de saxoferrato jurisconsultus celeberrimus ; qui & cum dignitate leonem accepit pro insignibus . inter classes vrbicas , omnium apud nos primus militari cingulo donatus est à ric. ii. praetor londinensis , non servati tantum civis sed regni causa , cum egregium proditorem inter copias coram rege exultantem pugione occidisset ; successoribus facto hanc obtinens dignitatem , pugionemque inscribi clypeo civitatis . sunt & qui — aevo — primum ferunt justitiariorum angliae militis donatum titulo . sed decipiuntur proculdubio ; ut copiose viderint in catalogis nostris justitiariorum ; licet & me alterius interdum nitentem fide non errasse alias haud asseruero . sub rege — omnes plerumque justitiarios tribunales milites salutabant . henricus viii . selectos tantum aliquot . regina elizabetha ( tenax nimium in conferendis honoribus ) vix unum atque alterum , praeter summos . jacobus rex cataractas aperuit dignitatum , obrepentibus interea ( ne asperius dicam ) plurimis ignobilibus . quippe cum in tota anglia vix . reperisset milites , ipsos statim ter tribus auxit centenariis . mirum nostro aevo , antiquis vero satis assuetum . henricus iii. nuptias sororis suae cum alexandro rege scotiae mille celebravit militibus . sed refert paulus aemilius , philippum pulchrum regem franciae in praelium contra edouardum iii. regem angliae , ter mille descendisse militibus , baltheo militari ( ut ejus utar verbis ) virtutis causa donatis . qui possunt militem facere . eorum fuit militem facere , quorum fuit feodum dare . nam qui feodum dabat , militem constituit , & patrimonium insuper adjecit quo aleretur . minus igitur est , militem facere , quam & facere & alere . qui feudum dare possunt , exprimit liber . de feudis , cap. . feudum ( inquit ) dare possunt , archiepiscopus , episcopus , abbas , abbatissa , praepositus ; si antiquitus consuetudo eorum fuerit , feudum dare . dux , marchio , & comes similiter , feudum dare possunt , qui regni vel regis capitanei dicuntur . addit & valvasores , sed minuta plenitudine . videamus autem an hi milites utique facerent . ab archiepiscopo : lanfrancus archiepiscopus cantuariae , gulielmum rufum quem nutriverat , militem fecit , patre adhuc vivente ; uti referunt malmesburiensis & parisius , hic in anno . pa. . ille pa. . sic goslariae , per concessionem archiepiscopi ( bremensis ) primum se rex ( puta henr. iii. imp. ) arma bellica succinxit . lambert . schafnab . in chro. t. . ab episcopo : annales dominicanorum colmariens . in anno . venerabilis ( inquiunt ) dominus de leichtenberg argent . episcopus , fecerat hoc anno ante festum s. michaelis milites ; quos omnes vestivit ad minus triplici vestimento ; soil . tunica preciosa , surgotum nobili vario , suchornam cum vario precioso . en in uno priscus hic ritus alius ; cum dignitate vestimenta largiri . sic henricus iii. apud parisium . et quidem triplicia : quod ex prisca romanorum consuetudine ad equites spectabat ; pediti enim simplex , duplex centurioni , triplex equiti dabatur . sic in ecclesia s. dionysii , die dominica per manus episcoporum armis accingitur ludovicus pius imperator , qui paulo anterius arma deponere & ante altare ponere coactus est . thegan . in vit. ejus pagg. . & . ab abbate : sic apud ingulphum saxonem , herewardus cum aliquot aliis cohortis suae tyronibus , à brando abbate burgi s. petri patruo suo ( sub an. . id est , . gulielm . i. ) more anglico , quem dedignati sunt normanni , miles factus est . morem expressit stowus in annalibus vernaculis sub gulielmo i. anno . herewardus anglo-saxo sub an. . ( i. e. . gulielmi i. ) patruelem suum abbatem petroburgensem adit ; confessusque & absolutus , noctem totam in ecclesia vigilans , orans , & jejunans transigit . mane gladium affert super altari , quem ( finito evangelio ) consecratum , abbas a collo herewardi suspendit ; benedictumque ipsum & sacra imbutum eucharistia , militem dimisit jam legitimum . abbatibus vero milites facere prohibuit synodus londinensis sub anselmo archiep. cant. an. . cap. . quod apud eadmerum videas lib. . & malmesb. lib. . de gest . pontif. de abbatissa & praeposito , non habeo quod proferam . forte quod antiquitus consuetudo corum fuerit , feudum dare ( ut lex ait ) aut non omnino , aut quid●m parcius . viro autem à muliere suscepisse decus militiae , probrum videretur . praeter hos ecclesiasticos , qui feodum dare potuerunt , sacerdoti etiam licuit inter anglo-saxones militem facere . sic enim ingulphus : post evangelium sacerdos benedictum gladium collo militis eum benedictione componeret , &c. ut supra . haec de ecclesiasticorum militibus ; quorum gesta feodalia & privata multo accuratius olim mandabantur literis , quam laicorum procerum . nemo vero opinabitur , proceres seculares , quibus totus in bello genius , minus valuisse in militaribus dignitatibus conferendis , quam magnates ecclesiae , belli inimicos . ducem burgundiae , celeberrimum instituisse ordinem militum aurei velleris , nemo non novit . et ducem britanniae suos creasse milites , inferiu ▪ patebit . marchiones , qui aliud non sunt quam comites limitanei , comites vero primarii ordinis , parem sine dubio ( si non supra ) cum comitibus potestatem habuerunt . ad montem , qui castro de lewes supereminet , se applicant ( barones ) ubi ordinatis alis & arcubalistis atque peditibus bene dispositis , gilbertum comitem gloverniae comes leycestriae symon armis militaribus decoravit . breviar . de bello . ( sed hoc forte , ut à principe militiae . ) in veteri ms. codice familiae sharneburnorum , legimus , quod in militia terrae sanctae , aevo regis ricardi i. will. de rustings & alan de sharnburne facti sunt milites de manu comitis arundel . tertii . et andreas de sharnburn similiter tempore regis johannis , de manu willielmi comitis arundel . iv. et ne comites hoc fecisse à rege delegatos cogites ; giraldus cambrensis in itinerario cambriae ( ca. . ) refert , . armigeros ( tempore henrici i. ) cingulo militari donatos & armis dominorum suorum decoratos à constabulario castri de pembrock primipilo arnulphi de montgomery . licuit forte milites suos feodales hac insignire dignitate , non alienos . ( quaere . ) sic in an. gratiae . cum ducem sibi constituissent scoti gulielmum waleys ; militiae ( inquit walsinghamus , in edw. i. ) donatus est cingulo à quodam comite regionis illius . creabantur & à civibus belcarii , & in provincia , ( joh. tilius de reb. gall. lib. . ca. de equitib . pa. . ) poterat & miles ( ut quidam asserunt ) eum militem facere , qui à patre natus est milite ; quod haec dignitas ad talem pertinuisse habita est tam ex jure quam ex gratia ; ut ex eo liqueat quod edouardus i. proclamari fecit per totam angliam , ut quotquot tenerentur fieri milites successione paterna , & qui haberent unde militarent ; adessent gradum suscepturi . sic alexander rex scotiae , licet ab henrico iii. rege angliae armis cingeretur militaribus , potuisset tamen ( inquit pa. . ) ipsa arma suscipere à quovis principe catholico , vel ab aliquo nobilium suorum . franciscus i. galliae rex equestre baltheum & ensem accepit à petro baiardo copiarum praefecto in pugna marigniana apud insubres , . kal. octobr. an. . chopp . de doman . lib. . tit. . sect. . pa. . in med . ferdinandus rex portugalliae praelium initurus anno . ab edmundo comite cantabrigiae anglo , in proprio suo regno factus est miles . henricus vi. rex angliae in festo pentecostes an. . regni . miles factus est à duce bedfordiae subdito suo , galliae regente ; cum jam vitae & regni annum quartum ageret . hollinsh . eo anno . ludovicus xi . quum ille remis induta purpura francici imperii habenas capesseret , à philippo burgundiorum duce ad hoc rogato eques cingitur , . cal. sept. an. . chopp . doman . lib. . tit. . nu . . pa. . historia de offa primo , qui strenuitate sua angliae maximam partem subegit : cui simillimus fuit secundus offa. proceres consulunt regi ( offae i. ) ut filium suum moribus & aetate ad hoc maturum , militari cingulo faciat insigniri , ut ad bellum procedens hostibus suis horrori fieret & formidini . rex celebri ad hoc condicto die , cum solempni & regia pompa gladio filium suum accinxit ; adjunctis vero tyrocinio suo strenuis adolescentibus generosis , quos rex ad decus & gloriam filii sui [ armis ] militaribus indui fecit & honorari . fol. . a. militem autem à non milite faciendum negarunt veteres , quamvis à rege . cum igitur ferdinandus rex portugalliae an. . in procinctu aciei , viginti quatuor vel eo supra , armis imbuisset militaribus ; nunciatumque ei esset , minime illos fore milites , quod rex ipse nondum miles cingeretur ; cincturam protinus ab edmundo comite cantabrigiae ( qui in acie versabatur ) auspicatus , caeteros omnes redintegravit milites . — disseraō que por elle naō sero feito cavalleiro post que ret foset , naō podia fazer cavalleirs . eutamo armon cavalleiro o cond● aymon de camburg v fez el rei de novo o● mesmos cavalleiros que tintra feitos o outros . . chron. de portug . reform . peto duarto nun ez do haō na vida del fernando . hoio . et licet justa ev●neat ratio , ut inferior semper omnem a superiore referat dignitatem ; minor a majore : supremae tamen potestatis principi , qui culminis sui territorium securus non egrediatur , necessario competit , ut non solum ab inferiore consequatur hunc honorem , sed a subdito etiam suo & vassallo . hodie creandi militis privilegium apud supremae potestatis principes tantummodo retinetur ; & his omnibus aeque competit , cujuscunque fuerint gradus aut fastigii . majores tamen habentnr milites , qui à majore constituuntur principe ; & laudatior consuetudo quae antiquior . danorum reges ( ut mihi auctor est crantzius ) ante — ( qui patrum nostrorum memoria floruit ) crearunt neminem . nec romani ( ut dicitur ) pontifices , ante paulum iii. qui nicolaum de ponte senatorem venetum primarium statuit . quid dux ipse venetus , nondum reperi : nec belgarum ordines hoc aggressos . successores vero pontifices , suos quinque milites non tantum fecerunt ; sed coacta pecunia ( ut sansouinus refert ) ordinis alicujus clientelares , suo de nomine nuncupatos : milites seil . s. petri , s. pauli ; milites — julii , pii , lauretanos , &c. morem denique imperatores turcici amplexi sunt , ex quo selnnus truculentus ille gentilem belinum egregium pictorem ( constantinopolim accersitum , ut aulam regiam depingeret ) torque & codicillo militiae donavit . quaeritur autem an legitimus hic miles ? sunt enim qui negant : & mihi quidem videtur legitimus ( ut juliani olim milites ) sed in militiam conscribi turcicam , non christianam . de principe excommunicato dignitatem conferente , pariter judi●andum canonicis . judices sub equitum appellatione censeri : scil . equites esse palatinos . apud romanos , judices omnes qui non erant senatores , ex equitibus legebantur , & equestribus igitur innotuerunt symbolis , annulo , equo , & angusto clavo . in equitum vero appellatione non sunt cogniti vulgariter , quod minor haec dignitas sub majori illa delituit . tametsi judicum non equitum nomina ferrent ( inquit alexand. ab alex. ) tamen equestris fuisse ordinis , & inter equites — , haud dubium est . qui in provinciam itaque sub impp. missus est judex ; militum more alias chlamyde donabatur , ut apud cassiodorum videas lib. . variar . ca. . alias gladio instruebatur , ut lib. . ca. . in formula comitivae provinciae : gladio ( inquit ) bellico rebus paratis accingitur : sed addit inferius ; arma ista juris sunt , non furoris contra noxios instituta , ut plus pavor corrigat quam paena consumat — civilis est pavor iste , non bellicus , &c. haec apud romanos ; & passim similiter . cum enim populis omnis borealis ( ad exemplum germanorum ) nihil facerent non armati ; magistratus omnis & potestas judiciaria penes militares retinebatur , ut in wisegothorum ll. lib. . tit. . ca. . animadvertas , & in caeteris pluries antiquis legibus . divisus enim tune populus in militares & agricolas : his autem illos jus dixisse , clarum est ex tacito . cinguntur ●g●tur judices , ne non milites haberentur ; sed palatini non castren●●s : quos sie distinguit vetus quidam apud balbum : miles pungit equum , sed judex judicat aequum : intellige ; miles castrensis pungit equum ; sed miles forensis seu palatinus , i. e. judex , judicat aequum . de palatino milite sic fulbertus carnotensis in hymno paschali resp . § . . pa. . ipsum canendo supplices regem precemur milites , vt in suo clarissimo nos ordinet palatio . hinc & judex , miles justitiae nuncupatur : quod nostro tempore ( inquit balbus ) potest esse una dictio composita , & tunc pertinet ad quoddam officium reddendi justitiam . sed quando sunt duae partes , miles justitiae dicitur quicunque est miles justus . conradi igitur faburiens . vocabulo dicatur miles justicus , ut sic à justo distinguatur . videtur froissardus lib. . ca. . hunc militem justitiae , chevalier de loix , militem juris , appellare . de tribus locutus militibus , quos chevaliers vocat : dont les deux ( inquit ) estoient d' armes , & le tiers de loix : les deux chevaliers d' armes estoient monsieur robert le clermont gentil & noble grandement ; l' autre le signeur de constan : le chevalier de loix estoit monsieur simon de bussy , quem gulielmus de nanges ejus aequalis dicit fuisse conseiller au grand conseil , i. e. à consiliis privati consilii regis , & primus praeses parliamenti . ( e carolo loyseau pa. . ) dicuntur & juris isti milites apud auctorem de la romant de la rose , chivaliers de la lecture , milites lectionis . qui veultu pur la foy defendre , quelque chevalerie emprendre , ou soit d' armes , ou soit de lectures , ou aultres convenables cures . de loco & tempore creationis . locus quo facti sunt olim milites non solum solennis fuit propter rei dignitatem ; sed etiam sacer : templum , ecclesia , capella ; & in istis pars praecipua , coram altari . prementeque aliquando turba ( ut in edouardi i. illis de quibus diximus ) super ipsum altare . exemplis scatent , quae narravimus . tantae etiam solennitati dabatur utique solenne tempus . ludovicus pius imp. ab episcopis cingitur die dominica in ecclesia s. dionysii . thegan . pagg. . & . sed ad multorum cincturam statuebatur è grandioribus festum aliquod , quo ad aulam confluentibus regni magnatibus prodire rex solebat fastu regio coronatus publice , ut in natali domini , paschate , & pentecoste . sic henric. i. gaufridum generum suum cum coaevis in festo pentecostes rothomagi auctoravit . henricus iii. alexandrum regem scotiae & . alios ad natale domini , eboraci . edouardus i. edouardum filium suum primogenitum & . alios ad festum etiam pentecostes , ut praedicitur . praeter haec , & insignes vestimentorum apparatus , lautissimis amicos excipiebant conviviis ; ludisque equestribus & mavortiis tyrocinii coronabant festivitatem . unde vetus illa lex , ut auxilium domino vassalli suggerant ad sumptus obeundos in filium primogenitum faciendo militem . contra morem igitur antiquum est , quod hodie nonnulli jactant , se creari in procinctu vel sub dio milites ; alios scioli vellicantes , qui in regia ( sub tapete , aiunt ) constituti sunt . sed horum est manu praestare potius quam mente ; marte quam minerva ; veritas è praemissis liquet . de auxilio quod diximus suggerendo , illud apud nos observandum est , ut poscatur solummodo ad filium primogenitum militem faciendum ; haud tamen antequam aetatis annum . exegerit . nec tum ( ut olim aliquando ) ad libitum domini ; sed modo & quantitate constitutis : hoc est , . sol . sterlingorum de quolibet feodo militari , & tantundem pariter de quolibet . libratu praedii rustici , quod soccage vocant . haec , statuto westm . . ca. . an. . edw. i. et iisdem rex conclusus est limitibus , stat. an. . edw. iii. cap. . de censu militari . olim ingens fuit turba militum , ut ex eo liqueat , quod militaris census ( feodum vocant ) centenis tantum solidis aestimaretur : tum vero quod hujusmodi feodorum sexaginta millia supra in anglia numerata fuerint , licet singula singulis non conferrentur . patrimonia vero fuisse videantur justorum militum sub illis seculis . vetus enim jus nostrum alios non agnovit milites , cum relevium comitis . libris ; relevium baronis , . marcis ; & relevium militis , . solidis , definiverit : id est , juxta unius anni valorem sui feodi exemplo quod in lib. de feudis reperitur . et videtur insuper ad militiae apparatum tunc evocari , quotquot liberi & ingenue tenentes , de praediis , centum annuatim numerabant solidos . crescente vero rerum pretio , henricus iii. evocari tantum jubet , qui . libratas terrae habebant , ut parisu utar verbis in an. dom. . anno . regni ejus , qui . libratas terrae possidebant . chron. hollinsh . pa. . col . . edouardus i. anno suo primo , hos qui . libratis gaudebant . stat. de milib . henricus viii . regni sui . illos solum qui . libras de censu praediali percipiunt . stow. pa. . modus exauctorandi militem ; quod degradare mincupatur . degradatur miles , ademptis per ignominiam judicialiter suae dignitatis symbolis : ut caeteri omnes gradu quolibet insigniti . ut enim ascribi in militiam nemo potuit non legitime ; sic nec solvi a militia . solutionem autem missionem vocabant romani ; & haec erat triplex , honesta , causaria , & ignominiosa . ff . de his qui no. infa . l. . § . ignominae . honesta , cum miles consueta stipendia meruisset ; quae erant in praetorianis cohortibus , annorum . in aliis , . tacit. annal. lib. . & l. a. de veteran . cod. theod. & cod. just . l. . veteran . fol. . d. causaria , quae propter valetudinem à laboribus militiae solvit . ff . de his qui no. infa . l. . § . ignominiae . ignominiosa , quae in ignominiam militis facta est ; & duplex suit . . cum is qui mitteret , adjiceret nominatim ignominiae causa se mittere : semper enim ( inquit lex ) deb●t addere cur miles mittatur . . sed si eum exauctoraverit , id est , insignia militaria detraxerit , inter insames efficit , licet non addidisset ignominiae causa se eum exauctorasse . ( ibid. fol. . b. v. § . seq . de insamis quid . &c. ) hoc illud missionis genus est , cui nos jam incumbimus ; dabimusque igitur celebre exemplum ejus ex herodiano de severo imperatore ; praetorianos omnes milites qui pertinacem imp. trucidaverant , pro tribunali in campo sedente , recingendos exauctorandosque decernente . post latam sententiam , e vestigio ( inquit herodianus ) milites illirici concurrunt ; praetoriamsque breves illos gladios detrabunt , quos auro argentoque ornatos in usum pompae suspensos habebant . tum zonis , vestituque , & caeteris militiae insignibus per vim ablatis , nudos ad unum exauctoratosque dimiserunt . in severo sect. . pa. . to. . ignominiae causa missis neque in urbe , neque alibi ubi imperator est , morari licet . ( ff . de his qui not . intam . § . miles . fol. . ) inde aemilius macer , qui ignominia missus est , neque romae , neque in sacro comitatu agere potest . ( in l. milites . § . ignominiosa , ff . de re milit . ) hinc exauctorandi nostri militis aurati caeremonia . auctorari autem dicitur , cum quis ad aliquid faciendum obligatur , ut miles ad militiam , &c. exauctorari hic igitur est , ab obligatione militari solutum esse : quae solutio & dignitatem tollit , & annexa privilegia . vulgo dicitur degradatio , quia gradum tollit . fit igitur omnis exauctoratio seu degradatio , auferendo per ignominiam judicialiter ipsa eadem insignia , quibus collata est dignitas vel gradus ; cum in secularibus tum in ecclesiasticis ; ut sigillatim ostenderem , si prolixitatis non puderet . sequemur igitur quod in thesi est ; & omissis romanorum exemplis , recentiora quaedam proferemus . memorabilis est prae caeteris omnibus male-sana illa exauctoratio ludovici pii imperatoris christianissimi ab episcopis an. dom. . compendii perpetrata : longa est injuria , longae ambages ; quas in auctoribus illius seculi , & nominatim in libello ; qui tegano subjungitur , exauctoratio ludovici pii nuncupato , fuse legas . coëgerunt autem mitissimum principem ( ut recentius angli ricardum ii. ) reatuum quos imposuerant articulis subscribere , poenitentiamque cum tristissima confessione profiteri . post hanc confessionem ( inquit auctor ) chartulam suorum reatuum , & confessionis , ob futuram memoriam sacerdotibus tradidit , quam ipsi super altare posuerunt : ac deinde cingulum militiae deposuit & super altare collocavit , & habitu seculi se exuens , habitum poenitentis per impositionem manuum episcoporum accepit ; ut post tantam talemque poenitentiam , nemo ultra ad militiam secularem redeat . p. . & seq . vides hanc exauctorationem retrograde fieri eisdem vestigiis quibus sub hoc seculo ipsa facta est militis ( ut loquuntur ) creatio seu auctoratio . a viris ecclesiasticis , in ecclesia , coram altari , praemissis confessione & poenitentia , solutione cinguli militaris , ejusdemque repositione super altare unde in auctoratione desumptum fuit ; exuto etiam demum seculari , hoc est militari , habitu , ut nunquam postea ad militiam esset redeundum . haec de morbo illius tempestatis : recolitur tamen imperator denuo & cingulo militari ab ipsis episcopis ( ut supra diximus ) & omnibus aliis suis insignibus . exauctoratur & circa hoc tempus , paulo anterius , odo quidam ludovici familiaris , armis scil . ablatis , ipsoque in exilium deportato . vit. lud. pii , p. . notandum autem est , sub voce cingulum , intelligenda arma omnia , & ipsam militandi facultatem : eoque sensu in historiis , conciliis , & jure caesareo passim occurrere cingulum tollere , amittere , perdere , & hujusmodi . accedo ad viciniora , & nostratia . andreas harkela miles auratus & comes carliolensis , sub an. dom. . seu . edw. ii. reus agitur coram gausrido de scrope summo justitiario regii tribunalis ( ut quidam perhibent , ) vel antonio de lucy ( qui eum comprehenderat ) ut alii referunt ; recte coram utroque , de re anglorum scoto prodenda . cumque lata esset sententia , ut spoliatus tam comitiva dignitate quam militari , morte pro more traditoris afficeretur : statutus est ad repagulum tribunalis , ocre●s , calcaribus , pellito collobio , vestibusque aliis comitivis indutus . prodiens tunc , ex mandato antonii , ribaldus quidam , calcaria primum ab harcleae calcibus detruncat ; fractoque super capite ejus comitivo gladio , quem in custodiam tutelamque comitatus rex ei praebuerat , vestibus spoliat & cingulo militari . spoliatum denique sic alloquitur antonius . ribaldus jam efficeris & tu ipse andreas , qui nuper miles fueras & vir dignitatis . proditionem vero suspendio lues , tractus , evisceratus , & intestinis crematis , quadrifariam dissectus , capiteque minutus , &c. codex vernac . ms. ca. . specimen aliud habes à radulpho de grey , qui cum fidem regi edouardo iv. juratam fefellisset ; captusque postea , in castello bamburgensi supremam subiturus esset sententiam ; comes worcestriae constabularius angliae pro tribunali sedens , reum his affatur : radulphe , statuerat rex tuae proditionis ergo , ut calcaria tibi juxta ipsos calcaneos ab archimagiro ( quem praesto hic vides praecinctum lint●o , & instructum cultro ) discuterentur . adsunt etiam ex mandato regis ( ut ipse hic vides ) rex armorum & heraldi alii cum tunica insignium tuorum militarium , quam à corpore tuo dilacerantes avellerent , ut tam nobilitatis tuae & insignium gentilitiorum spoliareris , quam dignitatis tuae militaris . en & alia tunica tuorum armorum reverso ordine depictorum , qua ad supplicium raptus induereris , tanquam ex jure ad te pertinente . degradationem tamen tuam à militari dignitate , armorumque & nobilitatis tuae ademptionem remisit & pepercit tibi rex ; corum memor , quae praeclarus avus tuus in causa illustrissimorum praedecessorum ipsius regis passus est . lato tandem judicio , ad supplicium tractus est truncatusque capite , ut stowus refert : sed ut fabianus , tractus , suspensus , & quadripartitus , an. dom. . regis . consedente pro tribunali regio in aula westm . d. thoma howard comite arundelio summo angliae comite marescallo , auream ferente muneris sui virgam , adjunctis a dextra & à sinistra — franciscus à ministro ad repagulum curiae adducitur , & parte interiori super scamno collocatur è regione d. marescalli ; stans & vestitu quo solet palliatus , sed ocreis & calcaribus auratis indutus , gladioque cinctus qui per baltheum coriaceum à dextro humero ad sinistrum dependebat latus . facto silentio legebatur publice ab heraldo libellus , reatum suum & sententiam inferioris conclavis parlamentarii continens . quo finito , corrigia calcariorum ejus discidit — ; arreptaque calcaria projiciebat in aulam : deinde discidit baltheum , curavitque ut gladi●s in terram caderet : quia in militaribus exercitiis lateri ignominiae sit , si qua pars armorum ad terram ceciderit ; ideoque heraldorum juris est . finis . historia familiae de sharnburn . e veteri ms. recensuit d. henricus spelmannus . hen. spelmannus lectori . non vulgare vides monumentum ; forte videbis haud duo praeterea talia , siqua vides . no vulgar monument you see , scarce two the like you 'l find , if any one you do . historia familiae de sharnburn . longo tempore post adventum saxonum paganorum in angliam , fuit quidam thokus qui fuit paganus dominus de integra villa de shenebruina , & habuit unam filiam , quam dedit cuidam homini strenuo vocato ingolf ; & cum ea dedit ei totam terram & mariscum quod ipse habuit versus occidentem praedictae villae de shenebruina usque mare , ubi ipse ingolf quandam villam fecit , & vocavit illam nomine suo ingolfestorp . et sanctus foelix quando venit de burgundia per consilium honorii archiepiscopi cantuar. applicuit in partibus estanglorum quae postea dicta fuit norfolchia & suffolchia , & convertit ad fidem eorpwaldum regem illius patriae & baptizavit eum , viz. an. dom. ..... et postea per licentiam praedicti eorpwaldi regis ivit per mare versus partes occidentales illius patriae , & applicuit apud babynglee , & convertit ad fidem dominum & omnes homines illius terrae , & fecit ibidem aedificari unam ecclesiam , quae fuit prima ecclesia illius partis norff. et deinde ivit ad shenebruinam & baptizavit praedictum thokum , & omnes homines suos , & praecepit ei ut ipse faceret ibi unam ecclesiam , & fecit ibi unam parvam ecclesiam de meremio , quae vocabatur per longum tempus le stoke chappel , & postea fuit dedicata per praedictum sanctum foelicem in honorem apostolorum petri & pauli , & sic fuit illa ecclesia in shenebruina secunda ecclesia illius partis norff. & ita fuit praedictus thokus effectus christianus , & tota vita sua fuit dominus de integra villa de shenebruina , & haeredes ejus similiter post eum fuerunt domini ejusdem villae usque canutus rex danorum conquestus fuit angliam . quo tempore quaedam puella de progenie praedicti thoki , & haeres sua linealiter descendendo fuit domina de integra villa de shenebruina praedicta , quae desponsata fuit cuidam edwyno , qui venit in angliam cum praedicto canuto rege daniae , ut patet in sequenti . edwinus dacus venit de dacia ( i. e. denmark ) in angliam cum canuto rege danorum anno domini millesimo xiv . quando ipse canutus debellavit cum edredo rege angliae , & post mortem praedicti edredi ipse canutus pluries pugnavit cum rege edmundo ironsyde filio praedicti edredi , & ad ultimum concordati fuerunt , ita quod praedictus edmundus haberet totam angliam ex parte australi thamysiae , & praedictus canutus haberet aliam partem angliae ex parte boriali praedictae thamysiae , quo tempore idem canutus dedit praedicto edwyno villam de neteshamia integram cum toto dominio integro & plures alias terras in comit. norff. et similiter dedit ei unam planiciem non cultam sed vastatam , versus orientem à praedicta villa per sex miliaria anglicana , ubi idem edwynus invenit quendam collem , & hogum petrosum , & ibi ipse incipiebat aedificare quandam villam & vocavit illam stonhogia , quae postea vocabatur stanhowe . et postea ipse edwynus desponsavit quandam puellam , quae fuit domina de integra villa de shenebruina ; & cito postquam desponsabat illam ipse cepit praedictam villam , quam habuit cum uxore sua de canuto rege , tenendam de ipso insimul cum donationibus , quas illi prius dederat ; & sic fuit ipse edwynus dominus integrè de praedictis villis , & obtinuit omnia praedicta in pace quousque willielmus bastardus dux normannorum cepit angliam super haraldum regem , qui coronatus fuit rex apud westm . an. dom. millesimo lxvi . et post coronationem ipse dedit diversas terras in anglia diversis hominibus , qui secum venerunt in auxilio ad angliam conquirendam . inter quas dedit willielmo de albeney pincernae suo , & willielmo de warennia forestario suo diversas terras , & dominationes in comit. norff. & alibi in anglia : & praedicti willielmus pincerna , & willielmus de warennia , & omnes alii qui venerunt cum praedicto conquestore ejecerunt diversos homines infra dominationes suas omnibus de terris , & dominationibus suis ; inter quos praedicti willielmus pincerna , & willielmus de warennia ejecerunt praedictum edwynum de praedictis duabus villis , & omnibus aliis terris , & dominationibus suis . propter quod idem edwynus , & alii quidam qui ejecti fuerunt abierunt ad conquestorem , & dixerunt ei , quod nunquam ante conquestum suum , nec in conquestu suo , nec post fuerunt contra ipsum regem in consilio & auxilio , sed tenuerunt se in pace , & hoc parati fuerunt probare , quomodo ipse rex vellet ordinare , propter quod idem rex fecit inquirendum per totam angliam , si ita fuit , quod quidem probatum fuit ; propter quod idem rex praecepit ut omnes illi qui sic tenuerunt se in pace in forma praedicta , quod ipsi retinerent omnes terras , & dominationes suas adeo integre & in pace , ut unquam habuerunt & tenuerunt ante conquestum suum , & quod ipsi imposterum vocarentur drenges ; super quod idem rex ad sectam praedicti edwyni mandavit praedictis willielmo pincernae , & willielmo de warrenia quod ipsi deliberarent praedicto edwyno omnes terras , & dominationes suas ex quibus ejecerunt eum , qui inde nihil voluerunt facere ; sed praedictus willielmus pincerna dedit eidem edwyno unum messuagium , ccc . acras terras , & tres faldas in snetesham , qui inantea vocabatur netesham tenendas de eodem willielmo pincerna per certa servitia & retinuit ad opus suum & opus willielmi de warrenna residuum praedictae villae de snetsham , unde ipsi feoffaverunt alios de hominibus suis qui secum venerunt de normannia . et praedictus willielmus de warrenna dedit similiter eidem edwyno unum messuagium , cccc . acras terrae , & quatuor faldas in sharnebourne cum dominio ejusdem villae quae inantea vocabatur shenebruina tenendas per certa servitia de cadem willielmo de warrenna , & retinuit ad opus suum residuum ejusdem villae de sharneburn cum advocatione ecclesiae , unde ipse feoffavit alios de hominibus suis qui secum de normannia venerunt . et post istas dominationes factas praedicto edwyno per praedictos willielmum pincernam , & willielmum de warrenna , dominus rad. de ●or●neys qui similiter venit in angliam cum praedicto conquestore , & cui idem rex dedit terram de suthm . cum membris in comit. norff. cepit praedictum edwynum , & ipsum incarceravit , perque longum tempus in prisona detinuit , quousque idem edwynus evasit per noctem extra prisonam , & abiit praedicto willielmo pincernae , & fecit ei querimoniam de injuria sibi facta , & supplicavit ●i ut ipse posset tenere de illo praedictam villam de stanhowe , qui noluit , sed ipse cum willielmo de warrenna ceperunt praedictam villam de stanhowe , in manibus suis & praedictus willielmus pincerna dedit praedicto edwyno unum messuagium , cccc . acras terrae & quatuor faldas in praedicta villa de stanhowe tenendas de eo per servicium xld. per annum , & residuum ejusdem villae de stanhowe cum advocatione ecclesiae retinuit ad opus suum & ad opus willielmi de warrenna qui inde feoffaverunt alios de hominibus suis qui secum venerunt de normannia , ut supradictum est . et postea idem willielmus pincerna mandavit in normandiam pro una filia bastarda sua , quam ibi procreavit ante adventum suum in angliam & illam dedit a●●euro filio praedicti edwyni , & per hoc fuit idem edwynus in pace tota vita sua , ita quod nullus ausus fuerit postea ei injuriam facere nec damnum . et praedictus edwynus cito post praedictum maritagium obiit in senectute sua post multas tribulationes suas tempore praedicti regis willielmi conquestoris . de quo asceurus , ut supradictum est , qui desponsavit filiam willielmi pincernae bastardam , ut supradictum est , & tenuit totam haereditatem suam in pace post mortem praedicti edwyni patris sui , & obiit in senectute sua in ultimis annis regni regis stephani . et ipse asceurus procreavit de uxore sua praedicta tres filios & plures filias , & ipse asceurus divisit praedictis tribus filiis suis totam haereditatem suam . de quibus galfredus filius praedicti asceuri primogenitus desponsavit etheldredam filiam rogeri de dersyngham , & ipsa fuit pulcherrima domina , quia inantea ipsa desponsabatur domina fulconi de sharneburn , & similiter post mortem praedicti galfredi illa domina desponsabatur domino rogero rustengs , ut patet alibi , & iste galfredus suit capitalis seneschallus willielmi comitis arundelliae , filii praedicti willielmi pincernae , de omnibus terris suis tam in anglia quam in normannia . et idem galfredus procreav it de praedicta etheldreda uxore sua tres filios & tres filias , ut patet inferius , & idem galfredus obiit die sanctae agathae virginis , tempore regis henrici secundi filii matildis imperatricis , & praedicta domina etheldreda obiit die sancti cuthberti tempore regis johannis . ricardus secundus filius praedicti asceuri desponsavit amiciam filiam ..... de lynnea veteri in partibus mershlandiae ex parte occidentali ripae , & cum illa habuit ibi magnam haereditatem , de quibus robertus , qui vendidit totam haereditatem , quam habuit in partibus mershlandiae antecessoribus jacobi baynard ; de quo roberto exivit ricardus , de quo robertus , de quo petrus , de quo sabina & petronella , & plures filii & filiae , & praedicta sabina desponsata fuit johanni filio philippi pynchom de castle-rising , & praedicta petronella nupta suit johanni filio radulphi panton de dockyngs . robertus tertius filius praedicti asceuri obtinuit multa beneficia ecclesiastica in diversis locis cum decanatu lenniae , & habuit tres filias . unde prima filia desponsabatur cuidam willielmo filio radulphi de snetesham , & secunda filia nupta fuit cuidam hamundo de snetesham ; & tertia filia nupta fuit cuidam waltero de snetesham . et de praedictis willielmo filio radulphi , & uxore sua filia praedicti roberti filii asceuri exivit radulphus , & plures filii & filiae , de praedicto radulpho secundo exivit willielmus , de quo quaedam puella quae nupta fuit galfredo de say de dersyngham , de quibus galfredus de say , qui vendidit totam haereditatem , quae ei descendebat post mortem matris suae , cuidam hervio vnderburg de bennham & aliis hominibus de snetesham , & de praedictis hamundo & uxore sua secunda filia praedicti roberti filii asceuri exivit galfredus , de quo alanus , de quo galfredus , de quo wymerus , de quo robertus wymer , qui vendidit totam haereditatem suam in snetesham , sharneburn , & dockyng domino johanni de ingoldesthorp & aliis hominibus . et de praedictis waltero & uxore sua tertia , filia praedicti roberti filii asceuri exivit galfredus , de quo galfredus , de quo johannes , qui vendidit totam haereditatem suam in stanhowe andreae de sharnebourne secundo & totam haereditatem suam in snetesham , & sharneburne vendidit aliis diversis hominibus de quo thomas bulwer de snetesham . modo dicendum est de etheldreda quae fuit uxor galfredi filii asceuri ; rogerus de dersyngham fuit quidem homo dives ex nobili progenie & habuit unum filium , qui vocabatur robertus de dersyngham post mortem patris sui , & unam filiam pulcherrimam quae vocabatur etheldreda , & dominus fulco de sharnebourn in equitando versus lennam vidit illam stantem juxta viam in dersyngham , & ipsam concupivit propter pulchritudinem suam , & tam cito quam ipse rediit in domum suam ipse mandavit praedicto rogero , ut ei vellet dare praedictam etheldredam filiam suam in uxorem . quo letaliter concedente & cum ea multam pecuniam promittendo , dictus dominus fulco ipsam desponsavit & ex eadem etheldreda procreavit dominum eudonem de scharnburn , & plures filios & filias . et de ipso eudone exivit galfredus & plures filii & filiae , & idem galfredus desponsavit rosamundam filiam will. filii roberti de ingoldsthorp consanguineam domini thomae de ingoldstorp senioris , de quibus will. & plures filii & filiae , de quo galfredus & plures filii & filiae , de quo willielmus , thomas & johannes & duae filiae , & praedicti willielmus , thomas & johannes obierunt , & praedictus willielmus post mortem filiorum suorum dedit domino andreae de sharneburn quarto totam haereditatem suam . et post mortem praedicti domini fulconis praedicta domina etheldreda desponsabatur galfrido filio asceuri , ut supradictum est , qui ex ea procreavit tres filios & quatuor filias , ut patet inferiu● . et post mortem praedicti galfredi filii asceuri praedicta domina etheldreda desponsabatur tertio domino rogero de rusteyng , qui fuit capitalis senescallis willielmi comitis arundelliae tertii , & idem rogerus antequam desponsavit praedictam etheldredam factus fuit miles in terra sancta de jerusalem tempore regis ricardi de manu praedicti domini willielmi comitis tertii . et post reditum suum de jerusalem ipse desponsavit praedictam etheldredam , ut supradictum est , qui ex ea procreavit dominum willielmum & plures filios & filias . it de ipso willielmo exivit dominus willielmus secundus , & dominus rogerus rusteyngus rector ecclesiae de ingoldsthorp & freyngz . et de ipso willielmo secundo exivit willielmus tertius & quatuor filiae , videlicet . milicentia prima filia , quae desponsata fuit domino reginaldo de sancto martino fundatore canonicorum de hempton . alicia secunda filia desponsata fuit domino waltero de wygenhall . margareta tertia filia desponsata fuit domino johanni de vvedale . beatrix quarta filia desponsata fuit gilberto de tuckwell . ●t praedicta domina etheldreda post mortem praedicti domini rogeri viri sui nunquam fuit desponsata , & ipsa vixit sola ad totam vitam suam sine viro. et obiit die sancti cuthberti tempore regis johannis . modo dicendum est de filiis & filiabus galfredi filii asceuri & praedictae etheldredae uxoris suae . dominus alanus fuit primus filius praedictorum galfredi & etheldredae , & factus fuit miles in terra sancta de jerusalem tempore regis ricardi de manu comitis willielmi arundellii tertii , eo tempore quo dominus rogerus rusteyng secundus fuit miles , & cum eodem alano fuit ibidem tune temporis petrus frater praedicti alani . et idem dominus alanus in tota vita sua non habuit uxorem nec exitum , nisi unum filium bastardum , qui vocabatur robertus de sharneburn , & aliquando robertus filius alani de sharneburn communiter robertus de hall ; & idem dominus alanus obiit tertio die junii tempore regis ricardi . dominus andreas secundus filius praedictorum galfredi , & etheldredae factus fuit miles in terra sancta de jerusalem tempore regis johannis de manu willielmi comitis arundelliae quarti . et post reditum suum de terra sancta ipse desponsavit susannam filiam domini benedicti de ang●ivilla , domini de westnewton , suyton & herlyngs , & cum praedicta susanna ipse habuit totam tertiam partem totius haereditatis praedicti benedicti , sed nullum exitum habuerunt inter ipsos , propter quod ipse non tenuit praedictam tertiam partem nisi ad totam vitam praedictae susannae ; & post mortem ipsius susannae idem dominus de andreas desponsavit aliciam quae fuit uxor sylvestris de risinges , sed nullum exitum habuerunt inter ipsos . et praedicta domina a●●cia super vixit praedictum dominum andream virum suum , & ibidem dominus andreas obiit die sancti alphegi episcopi , anno dom. millesimo cc. xlix . & regni regis henrici filii regis johannis xxxiv . et sepultus est apud sharneburn in capella coram altarem beatae mariae , prope parietem australem . petrus tertius filius praedictorum galfredi & etheldredae in redeundo de terra sancta de jerusalem cum domino alano fratre suo remansit retro praedictum alanum in francia cum quodam magno domino illius patriae , qui non habuit haeredem nisi unam filiam pulcherrimam , quam praedictus petrus incipiebat amare , & illa consentiente eidem petro * & tempore praedicti amoris pater puellae praedictae obiit , & sic illa puella remansit sola , & sine consilio nisi de matre sua . quo tempore dictus dominus andreas de sharneburn frater praedicti petri , antequam ipse factus fuit miles , ivit in terram sanctam de jerusalem , cum willielmo comite arundelliae quarto , & venit in illa parte franciae ubi praedictus petrus remansit , & fecit ipsum ●re secum in terram sanctam , & post reversionem praedicti andreae idem petrus remansit cum praedicta puella & matre sua . quo tempore ipsa puella fuit praegnans per praedictum petrum , & peperit unam filiam , & in secundo anno postquam praedicta puella fuit deliberata de filia sua praedicta , idem petrus audivit dicere , quod susanna , quae fuit uxor praedicti andreae fratris sui , fuit mortua sine liberis , propter quod ipse petrus desideravit ire in angliam ad fratrem suum ; & venit ad praedictam puellam , & petiit licentiam ab ea , ut ipse possit redire in angliam ad loquendum cum fratre suo , & illa ei concedit licentiam malevole , & tristi corde , & dixit praedicto petro , modo scio bene , quod quam citius venies ad hospitium habebis me in oblivione , & tibi capies aliam uxorem ; & idem petrus dixit quod non , & hoc affirmabat per juramentum & fidem suam dando , & tunc illa dixit tali conditione expectabo te per septem annos , ita quod non capiam maritum nec ullum virum donec praedicti septem anni erunt elapsi . et tunc idem petrus rediit in angliam , & antequam ipse perventus fuit ad hospitium , praedictus dominus andreas desponsavit aliciam , quae fuit uxor sylvestri de rysinge , qui receperunt praedictum petrum letanter , & cum magno gaudio : & post pusillum idem dominus andreas & alicia uxor ejus dixerunt eidem petro , ut ipse desponsaret ceciliam filiam praedictorum sylvestri & aliciae , & ipse nullo modo voluit consentire , nec concedere , propter quod idem dominus andreas multum irascebatur versus praedictum petrum , & dixit ei , si nollet ipsam ceciliam desponsare quod nunquam deberet esse haeres suus post mortem suam . et quia praedictus petrus bene sciebat , quod praedictus dominus andreas & domina alicia nunquam habuerunt haeredem de corporibus eorum , & ipse timuit quod idem dominus andreas in ira sua ipsum dishaeredaret , ipse desponsavit praedictam ceciliam tali conditione quod nunquam dishaeredaretur , & praedictus andreas hoc concedens , & per juramentum affirmans dedit ei , & praedictae ceciliae uxori ejus situm manerii sui in snetesham , & terram suam in eadem villa de snetesham . et praedictus petrus genuit de praedicta cecilia quinque filios & unam filiam , ut patet inferius . et praedictus petrus post mortem praedictae ceciliae rediit in franciam ad praedictam puellam , quam ipse prius amabat , & quam citius ipsa puella ipsum vidit dixit ei , quod ipse fregisset conventionem quam ipse secerat , quia septem anni fuerunt translati multo tempore elapso ; & dixit , bene scio quod duxisti uxorem ; & ipse respondit quod non haberet uxorem , sed non potuit denegare , quod ipse habuit uxorem quae mortua est , & dixit quod hoc fecit per cohortationem ratione dishaeredationis suae , & tam cito quam ipsa hoc audivit juravit , quod nunquam caperet ipsum nec alium virum , sed ipsa viveret sola sine viro tota vita sua , & maritaret filiam suam , quam ipse petrus procreavit ; & idem petrus hoc audiente juravit similiter , quod ipse nunquam haberet uxorem ; sed solus viveret sine muliere tota vita sua , & sic fecit , & postea idem petrus ivit ad comitem de campania , & cum ipso fuit per longum tempus quousque ipse audivit de morte domini andreae fratris sui . quo audito ipse rediit in angliam , & venit apud sharnburn , & ibi vixit tota vita sua cum filiis suis , & obiit vivente praedicta domina alicia , videlicet in vigilia sancti andreae apostoli , anno dom. millesimo cc. lix . & regni regis henrici filii regis johannis xliv . & sepultus est in capella ecclesiae de sharnburn coram altari beatae mariae , juxta dominum andream fratrem suam ex parte boreali . prima filia praedictorum galfredi & etheldredae vocata matildis desponsata fuit domino nicholao filio radulphi dockyng , item dominus ricardus de senges , dominus de berwick , dedit plures terras in dockyng , & alibi in maritagio cum praedicta matilde , de quibus dominus ricardus , de quo dominus nicholaus , de quo ricardus qui vendidit totam haereditatem domino johanni lovel seniori , & aliis diversis hominibus de quo nicholaus of hall , pauper manens apud norwic. secunda filia praedictorum galfredi & etheldredae vocata ..... desponsata suit domino alano filio robert● de ingoldsthorp , de quibus dominus thomas qui vocabatur 〈◊〉 thomas , de quo dominus thomas qui suit vice-comes norff. de ●uo 〈◊〉 johannes , qui suit ad baneram in guerra cum edwardo rege 〈◊〉 de ●●o dominus thomas , de quo dominus johannes , de quo dominus 〈…〉 ingoldsthorp . 〈…〉 praedictorum galfredi & etheldredae vocata ..... desponsata suit 〈◊〉 nicholao de testes , de quibus dominus rogerus , de quo thomas , 〈…〉 patre suo , de quo rogerus ultimus . quarta 〈◊〉 praedictorum galfredi & etheldredae vocata isabella desponsata suit ..... de quibus matildis , quae desponsata suit albino de stamford manenti in 〈…〉 de quibus johannes aubyn de hillyngton , & ricardus aubyn d●●anus de he●●am . modo dicendum est de domina alicia , quae fuit uxor domini andreae de 〈◊〉 de primo viro suo , domina alicia , antequam ipsa desponsabatur domino andrew de sharnburn , desponsata suit sylvestro de rysings cuidam homini diviti multas habens terras in rysings , west-newton & alibi , de quibus cecilia quae desponsata fuit petro de sharnburn , ut patet superius , & quaedam alia filia quae desponsata suit thom●e sorel de oldlynne seniori . et unus filius qui vocabatur willielmus sylvestre , de quo andreas sylvestras manens in congham , de quo cecilia quae desponsata fuit willielmo attechirch de wulfurton seniori , & alicia quae desponsata fuit adae a●ary de sharnburn seniori . et praedicta domina alicia fieri fecit cancellam de sharnburn , & sepulta est in eadem cancella , & ipsa obut tertio idus sept. anno dom. millesimo cc. lx. & regni regis henrici filii johannis xlv . et cecilia quae suit uxor petri de sharnburn obiit xi . cal. oct. modo dicendum est de exitu petri de sharnburn , & ceciliae uxoris ejus . johannes filius praedictorum petri & ceciliae primogenitus obiit sine haerede de se procreato vivente patre suo , vid. vii . idus nov. andreas secundus filius praedictorum petri & ceciliae vivente patre suo desponsavit emmam sororem magistri godofredi de toftes rys , quondam rectoris de hunstanston , de quibus exivit una filia ut patet inferius , & praedicta emma obiit iii. cal. oct. & sepulta est in coemeterio ecclesiae de sharnburn , ex parte australi capellae prope parietem . et post mortem praedictae emmae idem andreas desponsavit christianam filiam domini alani le gross de wodenorton de quibus exivit unus filius , & duae filiae , ut patet inferius . et praedictus andreas obiit vii . kal. julii , an. dom. millesimo cc. lxxxii . regni regis edwardi filii regis henrici x. et sepultus fuit in capella ecclesiae de sharnburn , ad caput domini andreae sub pariete australi . et praedicta christiana post mortem praedicti andreae desponsata fuit edmundo filio domini johannis de gylham de dersyngham , & vixit per longum tempus post mortem praedicti edmundi ; videlicet usque festum sancti lucae evangelistae , an. dom. millesimo ccc . xxxvi . & regni regis edwardi tertii post conquestum decimo . walterus tertius filius praedictorum petri & ceciliae fuit armiger , cum domino thoma rostelyn seniori nobili homine & probo tota vita ipsius domini thomae , & cum ipso fuit ad bellum de lewes & evesham ex parte regis henrici , & edwardi filii sui , & postea idem walterus fuit cum praedicto domino thoma in terra sancta de jerusalem , in ultimis annis praedicti henrici regis in societate praedicti edwardi . et idem walterus post reditum suum de terra sancta procreavit de juliana filia adae rydout senioris unum filium , & tres filias bastardas , ut patet inferius , & postea per longum tempus ipse per cohortationem ecclesiasticam desponsavit praedictum julianam , contra voluntatem suam , quia ipse walterus amabat filiam praedicti domini thomae , quae desponsata fuit domino roberto turtevill , & post mortem ejusdem domini roberti ipsa debuit desponsari praedicto waltero , sed perturbata fuit per praedictam julianam , & post mortem ejusdem julianae ipse vixit solus sine muliere usque in ultimis diebus vitae suae . et quando edwardus rex primus post conquestorem cepit crucem eundo in terram sanctam , ipse walterus cepit crucem , & signatus fuit in carne super humerum dextrum , sed non fecit peregrinationem dictam in vita sua , quia rex non fecit . et postea in ultimo anno vitae suae desponsavit margeriam filiam stephani de geyton , & ex ea procreavit unum filium , ut patet inferius . et eadem margeria supervixit praedictum walterum ▪ per longum tempus , & praedictus walterus obiit pridie cal. octobris , anno dom. millesimo ccc . vii . & regni regis edwardi filii regis edwardi primo , & sepultus est extra capellam de sharnburn , ad caput orientale . et praedicta margeria obiit in pestilencia , videlicet die sabbati idus junii anno dom. millesimo cc. xlix . & sepulta est ad ostium australe ecclesiae de sharnburn . philippus quartus filius praedictorum petri & ceciliae , fuit armiger cum domino hugone peche , & cum ipso fuit ad bellum de lewes , & evesham contra regem & edwardum filium suum , & postea in insulâ de ely cum praedicto hugone , propter quod ipse philippus exulabatur ex anglia , & obiit in francia ad villam , quae dicitur sancta maria de pertico , & ibi duxit uxorem , & suscitavit prolem , & ibi fuit tota vita sua . robertus quintus filius praedictorum petri & ceciliae , fuit armiger cum domino johanne de la hay , & cum co fuit ad bellum de lewes , & evesham contra regem , & edwardum filium suum , & in insula de ely cum praedicto domino johanne , unde postea habuit pacem regis , & venit ad hospitium ad andream fratrem suum , & ibi postea cito obiit sine liberis . alicia filia praedictorum petri & ceciliae desponsata fuit galfredo curtemanche seniori filio galfredi capellani filii briani de snetesham , & antequam desponsabatur decepta fuit , ita quod fuit praegnans de praedicto galfredo , & habuit unum filium bastardum qui vocabatur galfredus curtemanche junior , de quo robertus ..... et post matrimonium illa habuit tres filios & unam filiam , videlicet andreas qui obiit sine haeredibus , robertus , johannes & johanna , quae nupta fuit apud shuldham . de roberto secundo filio in matrimonio exivit willielmus thesaurizarius comit. de warwick . & sex filiae , videlicet alicia , ..... alicia desponsata fuit rogero de london civi coventriae , beatrix , & oliva desponsata willielmo bishop de sharnburn , & johanna ..... et praedictus petrus de sharnburn , habuit plures filios & filias bastardos , quorum nomina ignorantur nisi de tribus filiabus , videlicet etheldreda , christiana , & juliana , quae desponsata fuit galfredo rydout seniori , de quo galfredus , juliana . et praedictus petrus post mortem ceciliae uxoris suae , & domini andreae fratris sui factus fuit miles in senectute sua de manu hugonis de aubeny , pincernae ultimi comitis de integro comitatu arundelliae . modo dicendum est de exitu andreae de sharnburn secundi . andreas de sharnburn secundus de emma prima uxore sua habuit unam filiam , quae vocabatur alicia , quae habuit totam haereditatem praedicti andreae patris sui post mortem fratris sui junioris . et praedicta alicia primo desponsabatur jacobo styward de hulmo juxta mare , & secundo ricardo de gernestone burgensi lenniae , & non habuit exitum de praedictis viris suis ; sed obiit sine haerede de corpore suo , videlicet x. kal. aug. an. dom. millesimo ccc . ix . & regni regis edv. filii regis edv. tertio incipiente . et sepulta est apud lenniam in ecclesia sanctae margaretae , in uno archo ex parte australi . et idem andreas secundus de christiana secunda uxore sua habuit unum filium , & duas filias , videlicet andreas tertius qui non fuit nisi de duobus annis vivente patre suo , & non vixit post mortem patris sui , nisi duobus annis & dimidio , & sic obiit sine haerede de corpore suo procreato , iii. non. dec. an. dom. millesimo ccc . lxxxiv . & regni regis edwardi filii regis henrici xiii . incipiente , & sepultus fuit in capella ad pedes patris sui extra parietem . cecilia filia praedictorum andreae & christinae , obiit sine haerede in puerili aetate sua cito , post mortem patris sui , vivente fratre suo supradicto . christiana filia predictorum andreae & christinae , obiit sine haerede in puerili aetate sua , vivente patre suo . et praedictus andreas secundus , antequam ipse habuit ullam uxorem , genuit unum filium bastardum , vocatum johannem qui multum fuit probus & validus , & qui fuit armiger cum domino johanne ingoldsthorp seniori , & obiit cito post mortem praedicti andreae patris sui sine haerede . modo dicendum est de exitu walt. de sharnburn , tam ante matrimonium quam post matrimonium . walt. de sharnburn ante matrimonium contractum inter ipsum & julianam primam uxorem suam genuit unum filium bastardum nomine petrum , qui obiit ultra mare post mortem patris sui , videlicet ad natales domini , an. dom. millesimo ccc . xvii . & nunquam postea reversus est in patriam , nec habuit uxorem , nec suscitavit prolem . et similiter idem walterus genuit de praedicta juliana , tres filias bastardas ante matrimonium praedictum , videl . rosa quae desponsata fuit adae aymles de holkam , de quibus walterus ..... margareta , quae nunquam habuit virum , sed unum filium bastardum vocatum walterum . agnes quae similiter nunquam habuit virum , sed unum filium bastardum vocatum petrum , de quo hugo . et idem walterus de sharnburn de margeria uxore sua procreavit , unum filium vocatum andream quartum , qui natus fuit vi. kal. nov. an. dom. millesimo ccc . vii . videlicet per quinque dies ante obitum patris sui & anno aetatis ejus xii . desponsavit emmam filiam willielmi gosselyn de snetesham capitalis seneschalli domini roberti de monte alto , domini de castello de rysing & seneschalli cestriae anno aetatis praedictae emmae sexto , videl . die dominica in octab. epiphaniae , an. dom. millesimo ccc . xix . & postea ipse nutritus fuit cum praedicto domino roberto , & domina emma uxore ejus . et postquam ipse andreas fuit plenae aetatis genuit de praedicta emma uxore sua plures filios & filias , ut patet inferius , & eodem tempore ipse fuit armiger , cum domino thoma de brotherton comit. norff. & cum pluribus aliis dominis de norff. in guerris scociae , gasconiae , & franciae , quousque idem andreas die mercurii pridie non. junii , an. dom. millesimo ccc . xlvi . cepit peregrinationem suam versus terram sanctam de jerusalem , & in societate praedicti andreae fuit mauritius de dersyngham , & abierunt per ..... ad insulam de rodes , cum fratre roberto saleyns probo milite hospitalario & mariscallo hospitalis sancti johannis de jerusalem in praedicta insula de rodes , & cum praedictus andreas fuit in partibus illis rex angliae devicit francos apud cressy , & cepit per obsidionem villam de caleys . et tam cito quam ipse andreas venit ad insulam de cipro , remansit cum domino arnaldo vicecount de caremayne , qui ipsum andream & armandum de aspays de villa sanctae mariae podiensis , fecit milites apud sanctum sepulchrum in ecclesia de jerusalem , die sabbati xvi . kal. martii , an. dom. millesimo ccc . xlviii . in praesentia vicecomitis nerbome , & aliorum proborum & nobilium militum de francia , catelonia , & alemannia , & ipse andreas & mauritius fuerunt apud sanctam catherinam , & in egypto toto tempore pestilentiae in anglia . et in redeundo de terra sancta fuit apud romam , anno jubileae quinquagesimo . modo dicendum est de exitu domini andreae de sharnburn quarti , & dominae emmae uxoris suae . andreas quintus filius praedictorum andreae & emmae non vixit nisi per v. dies . item alius andreas filius secundus praedictorum andreae & emmae uxoris suae , qui dictus fuit quintus andreas natus fuit die lunae iv. idus augusti , an. dom. millesimo ccc . xxvii . & ipse fuit armiger ad bellum de cressy , & in obsidione de caleys , cum comit. de warwick , tunc temporis marescallo angliae , & ipse fuit ultra cum praedicto comite usque pestilenciam in anglia , & post praedictam pestilenciam in anglia ipse fuit cum duce lancastriae seneschallo angliae , & cum ipso duce fuit in britannia ad obsidionem civitatis redonis , ubi ipse perculsus fuit de una petra minus grossa in capite suo super bacenetum , unde ipse languebat post ea per unum annum post obsidionem peractam quousque diem suam clausit extremum , & obut die sabbati non. julii , an. dom. millesimo ccg . lviii . anno aetatis ejus xxxi . & sepultus est in capella juxta andream secundum . emma prima filia praedictorum andreae & emmae uxoris ejus nata fuit die lunae iv. kal. aug. an. dom. millesimo ccc . xxviii . & desponsata fuit johanni de la rokele de wymondham , die lunae ix . kal. dec. an. dom. millesimo ccc . xlix . qui suit cum praedicto domino andrea patre praedictae emmae ad obsidionem civitatis redonis in britannia , ubi ipse johannes obiit die jovis vii . kal. feb. an. dom. millesimo ccc . lvi . & sepultus est ibidem in suburgo in ecclesia sancti stephani prothomartiris ad altare beatae mariae virginis juxta crucem ex parte boreali . et praedictus johannes procreavit de praedicta emma uxore sua duos filios & duas filias , videlicet thomas natus die sabbati in festo sancti barnabae , an. dom. millesimo ccc . li. johannes qui non vixit nisi per dimidium annum . agnes nata . ..... willielmus tertius filius praedictorum andreae & emmae , non vixit nisi per duos annos & dimidium . johannes quartus filius praedictorum andreae & emmae non vixit nisi per dimidium annum . alicia secunda filia praedictorum andreae & emmae , nata fuit die sabbati v. kal. nov. an. dom. millesimo ccc . xxxv . & obiit in pestilencia an. dom. millesimo ccc . xlix . & sepulta est apud snetesham , in capella ex parte boreali ecclesiae . robertus quintus filius praedictorum andreae & emmae , natus fuit die veneris vi. kal. jan. an. dom. millesimo ccc . xxxvi . & obiit in eadem pestilencia , an. dom. millesimo ccc . xlix . & sepultus est juxta praedictam aliciam sororem suam . item alius willielmus filius sextus praedictorum andreae & emmae , natus fuit die lunae xi . kal. junii , an. dom. millesimo ccc . xxxix . margareta tertia filia praedictorum andreae & emmae , nata fuit die jovis vii . id. sept. an. dom. millesimo ccc . xl. & obiit in pestilencia praedicta , & sepulta est apud snetesham , juxta praedictum robertum fratrem suum . agnes quarta filia praedictorum andreae & emmae , nata fuit die dominica iii. non. maii , an. dom. millesimo ccc . xlii . & obiit in pestilencia supradicta , & sepulta est juxta praedictam margaretam sororem suam . beata quinta filia praedictorum andreae & emmae , non vixit nisi per unum annum & quarterium . katherina sexta filia praedictorum andreae & emmae , nata fuit die mercurii viii . kal. junii , an. dom. ccc . xlv . christiana septima filia praedictorum andreae & emmae , nata fuit die lunae viii . kal. octob. an. dom. millesimo ccc . xlvii . walterus septimus filius praedictorum andreae & emmae , natus fuit die veneris , iii. id. mar. an. dom. millesimo ccc . liv. finiente . * modo dicendum est de exitu willielmi filii praedictorum andreae & emmae , qui quidem willielmus fuit filius sextus , & haeres praedicti andreae , seniores filii omnes interiere ut supra . willielmus habuit exitum de se legitime procreatum duas filias claritiam & margeriam . claritia fuit desponsata johanni toly , & idem johannes toly , & claritia habuerunt exitum de se legitime procreatum unam filiam nomine margaretam , quae modo desponsata est ricardo elliswyke , & praedicta margeria altera filiarum praedicti willielmi de sharnburn desponsata fuit willielmo champeneys , & habuerunt exitus ; modo iidem willielmus champeneys , & margeria & exitus eorum mortui sunt . item memorandum , quod ric. elliswyke armiger , desponsavit margaretam toly filiam & haeredem johan . toly armigeri de sharnburn , an. dom. millesimo cccc . iv. & anno regni regis henrici quinti quartodecimo genuit filium primogenitum nomine thomam elliswyke , also nomine thomam sharnburn ; praedictus thomas sharnburn genuit johannem sharnburn primogenitum ex jomena uxore sua , &c. ut sequitur . item robertus filius secundus praedictorum ricardi & margaretae , obiit sine haerede . item nicholaus filius tertius praedictorum ricardi & margaretae fuit rector ecclesiae de hedham . item margareta primogenita filia desponsata fiut roberto carwell generoso , & ex ea genuit robertum carwell , & idem robertus carwell junior desponsavit elianoram pynkebek , &c. item thomas sharnburn primus filius praedictorum ricardi & margaretae desponsavit jomonam cherneys , servientem cum domina margareta regina angliae , & ex ea genuit johannem sharnburnum primum filium : & praedictus thomas sharnburn , fuit hostiarius camerae , cum domina margereta regina angliae , & praedicta jomona fuit domicell ..... camerae cum domina margereta regina angliae , & obiit iv. die febr. an. dom. millesimo cccc . lviii . & sepulta est in ecclesia apostolorum petri & pauli in sharnburn , in australi parte sub fenestra in capella ejusdem . johannes primus filius praedictorum thomae & jomonae , natus fuit viii . die julii . an. dom. millesimo cccc . xliv . edwardus secundus filius praedictorum thomae & jomonae , natus fuit viii . kal. junii , & obiit in juvenili aetate septendecem annorum , & sepultus londoniae in pestilencia . thomas tertius filius praedictorum thomae & jomonae , natus fuit tertio non. augusti , & obiit in puerili aetate , & sepultus est in ecclesia apostolorum petri & pauli de sharnburn . * margareta prima & ultima filia praedictorum thomae & jomonae , nata fuit xi . kal. sept. & obiit in juvenili aetate , & sepulta est in ecclesia sanctae margaretae virginis & martyris de lynn episcopi , an. dom. millesimo cccc . xlviii . antonius quartus filius praedictorum thomae & jomonae , natus fuit pridie kal. feb. & obiit in magna pestilencia cum magno sudore , anno aetatis suae vicesimo sexto , an. dom. millesimo cccc . lxxxv . & primo regni regis henrici septimi , & sepultus est londoniae . johannes sharnburn primus filius & haeres praedictorum thomae & jomanae desponsavit annam unam haeredum & filiam domini johannis curson militis , & johannae uxoris ejus de billingsford non. feb. an. dom. millesimo cccc . lxxi . & anno xii . regni regis edwardi quarti , & ex ea genuit duos filios & octo filias , ut patet inferius . johanna prima filia praedictorum johannis & annae , nata fuit iii. kal. apr. an. dom. millesimo cccc . lxxiii . anno xiv . regni regis edwardi quarti . et habuit ante matrimonium robertum sharnburn , & postea nupta fuit gervasio kelfull de sharnburn . henricus primus filius praedictorum johannis & annae , natus fuit die dominica in festo sancti georgii martyris , an. dom. millesimo cccc . lxxiv . margareta secunda filia praedictorum johannis & annae , nata fuit ix . kal. aug. an. dom. millesimo cccc . lxxv . anno edwardi iv. xvi . & obiit juvenis . thomas secundus filius praedictorum johannis & annae , natus fuit idibus sept. an. dom. millesimo cccc . lxxvi . anno regis edwardi iv. xvii . jomona tertia filia praedictorum johannis & annae , nata fuit xvii . kal. jan. an. dom. millesimo cccc . lxxvii . anno regni edwardi iv. xviii . & sepulta est in sharnburn . anna quarta filia praedictorum johannis & annae , nata fuit kal. mar. an. dom. millesimo cccc . lxxviii . anno regis edwardi iv. xix . & fuit monacha professa in comit. norff. & obiit ibidem . elizabetha quinta filia praedictorum johannis & annae , nata fuit primo die jan. an. dom. millesimo cccc . lxxx . anno regni edwardi quarti xxi . obiit in juventute , & sepulta est in sharnburn . elizabetha sexta filia praedictorum johannis & annae , nata fuit xvi . kal. dec. an. dom. millesimo cccc . lxxxi . & regni edwardi quarti xxii . et postea nupta fuit edmundo poget de honingham in comit. norff. generoso . alicia septima filia praedictorum johannis & annae , nata fuit iii. idus nov. an. dom. millesimo cccc . lxxxiv . anno secundo regis ricardi tertii . agnes octava filia praedictorum johannis & annae , nata fuit duodecimo kal. feb. an. dom. millesimo cccc . lxxxvii . anno regis henrici vii . iii. & vixit quatuor diebus , & sepulta est in sharnburn . modo dicendum est de henrico sharnburn , primo filio & haerede praedicti johannis sharnburn , & annae uxoris suae . qui henricus cepit in uxorem elizabetham filiam , domini ricardi lewis milite in comit. essex . & habuit ex ea exitum thomam sharnburn , de quo postea , & duos alios filios qui obierunt in infantia sua . hic henricus fuit vir fortis & validus multumque versatus inter aulicos tempore henrici octavi , qui quidem rex ipsum henr. sharnburn singulari quadam gratia & favore amplectens , primo fecit eum militem , deinde le provost marshall , & postea vice-admirallum angliae , misitque cum ad mare navi viris & armis fortiter munita , ut perpulsaret , & a finibus nostris perfugaret piratos & praedones praecipue ex gallica gente , qui eo tempore plurimum praedabantur in oris angliae . in quo negotio viriliter quidem ipse henr. se gerebat quamvis sibi inutiliter successerit . nam post multa a se praeclare ac valide gesta tandem forte incidit in admirallum franciae , cum quo ferocissime & crudelissime habuit pugnam , in qua plurimi ex utraque parte occisi fuerunt , quorum percipuus erat ipse dominus henricus sharnburn , & sic finierunt dies ejus . praedictus autem thomas sharnburn filius & haeres dicti domini henr. sharnburn , jam tunc aetate xviii . annorum erat cum patre suo in navi in praedicta pugna , ubi ingens & insolitus bombardarum sonitus aures suas ita obtudit , ut semper postea per totam vitam surdus remanserit . serviebat tamen illustrissimae principi dominae mariae filiae primogenitae regis henrici viii . & ex ejus familia elegit sibi uxorem nomine elizabetham atwell unam ex ancillis dictae principis , ex qua procreavit unum filium & duas filias , qui omnes in infantia aut puerili aetate mortui sunt . ipsa autem elizabetha uxor dicti thomae sharnburn , in partu unius dictorum liberorum spiritum spiravit extremum xiii . die feb. anno regis henrici viii . xxx . & sepultus est apud sharnburn . sed praedictus thomas brevi tempore post accepit aliam conjugem nomine blitham brampton , filiam johannis brampton de brampton in comit. norff. armigeri , quae peperit sibi quinque filios & duas filias , quorum primus erat christopherus sharnburn qui natus fuit xii . die oct. anno regni henr. viii . xxx v. an. dom. . de quo postea . secundus erat antonius sharnburn qui obiit eodem die quo natus fuit , viz. xxiv . feb. anno regis henrici viii . xxxv . . tertius erat dorothea sharnburn quae nata fuit xx. die nov. anno henrici viii . xxxvii . . quae dorothea primo nupta fuit johanni plumstede de plumstede in comit. norff. generoso , & post mortem dicti thomae nupsit cuidam roberto nichols , & habuit exitum ex utroque marito . quartus erat henr. sharnburn qui natus fuit iv. die apr. anno regis edwardi vi. primo an. dom. . quintus erat thomas sharnburn qui natus fuit xxiii . die sept. edwardi vi. secundo , qui obiit infantulus in ingoldsthorp apud nutricem suam . sextus autem fuit anna sharnburn quae nata erat iii. die novemb. anno edwardi vi. tertio obiit in infantia apud dersyngham , cum nutrice sua . septimus erat antonius sharnburn , qui ortns fuit xx. die mar. anno regni edwardi vi. quinto an. dom. ● . qui obiit etiam tertio die jan. an. dom. ● . anno aetatis suae liii . & quia celibatam degebat vitam nullum ex se 〈◊〉 exitum . praedictus autem thomas sharnburn pater praedictorum liberorum in senectute sua saepe , & vehementer gravabatur ex dolore lapidis in ●enibus & vesica , qui morbus ita vires suas naturales debilitavit & mortem approximavit , ut xxii . die mar. an. dom. . diem clausit extremum . et sepultus est in capella ecclesiae de sharnburn , atque praedicta blitha uxor ejus supervixit eum , & habuit sibi pro termino vitae suae totum manerium de sharnburn , nupsitque cuidam lanceloto smalperd generoso , cum quo degebat pluribus annis & supervixit eum per decem annos , ita ut omnes dies ipsius blithae possunt computari ad octoginta , & sex vel septem annos , obiit autem primo die nov. an. dom. . & sepulta est in capella ecclesiae de sharnburn , loco ubi thomas sharnburn maritus suus sepultus fuit . modo dicendum est de christophero sharnburn , primo filio praedictorum thomae & blithae , qui postquam ad virilem aetatem pervenerat duxit in uxorem annam veere , ex progenie comit. oxon. & consanguineam thomae ducis norff. ex qua procreavit franciscum sharnburn , de quo postea . et praedictus christopherus obiit sexto die julii , an. dom. . anno aetatis suae tricesimo quarto , & sepultus in inferiori parte capellae ecclesiae de sharnb●rn prope parietem . finis . a dialogue concerning the coin of the kingdom : particularly , what great treasures were exhausted from england , by the usurp't supremacie of rome . viandante . selvaggio . viand . * ..... god amend them : but to return to the point that led us into this digression , the excessive price of meat ; i pray let us now leave foreign countries , to look a little into our own ; and tell me what you think to be the cause , that the prices of things do so far exceed the proportion of ancient times . for i have seen in an old evidence , that a good cow was in those days sold for ten or twelve shillings ; and at this day , i dare say such an one will cost thirty or fourty shillings , and so likewise of other things . selv. how sore soever victualers , inn-keepers , taverns , and such like , gripe their guests and travellers ; yet it is worth the examining whether the prices of things be in any notable excess greater than in ancient times they have been . for if we consider the value of the shilling then , with the value of the shilling now ; we shall find that their shilling was in value three of ours . for then , out of an ounce of silver they coin'd but sive groats , and after ( because mony was scarce in the land ) the king caused ten groats to be made of an ounce . so that by this means there grew to be twice as much mony in the land as was afore , and yet never the more of silver . after , in the . of henr. viii . it was enhaunc'd to four shillings the ounce ; and now lastly unto five . so that now our five shillings neither weigheth nor is more worth in silver , than their sive groats of ancient time . and then it followeth by necessary consequence , that the cow that you speak of to be sold for ten shillings , may now be well worth thirty shillings , and yet no difference at all in their prices . for admit , that the custom used in the time of the conqueror , and since also , ( as appeareth by doomsday-book , &c. ) had continu'd until this day ; to receive and pay all summs of mony according unto the weight and touch , without respect of the stamp or coin ; then was the price of your ten shilling cow six ounces of silver , and ours of thirty shillings is so likewise , and not one peny more ; & sic de caeteris . but admit again , that the queen's majesty should reduce her coin to the former rate of sive groats to the ounce , do you think that things would then be sold for so many shillings or pounds , as they now be ? i warrant you , no. then is it the unstable value of our former coins , that so much deceiveth a great number . for look into such things as have always retain'd an uniform content , and you shall find little difference between our and the former times , in giving one of those things for another . for at this day , you may buy a cow for as few sheep as you could then , and a horse for as few cows . the land that was then lett ( with us in norfolk for d. or d. the acre , and now for eight groats or three shillings , was in those days also let for a coumbe of barley , and yet will not now be hired at so great a rate . viand . you have answer'd me beyond my expectation ; but yet not fully satisfy'd me . for tho' i allow you these proportions , yet there remaineth a great diversitie . for i have read , that in old time , a quarter of wheat was sold at london for s. a fat ox for a noble , a fat sheep for d. or d. half a dozen of pigeons for a peny , a fat goose for d. a pig for a peny , and other things after that rate . and yet i grant that a man in letting or selling his land for corn , cattel , and such like , or ware for ware , might in those days have as much as he can get now . selv. the time you speak of was about the th . of edw. iii. and the like hath been at other times also . and when the cause hereof is well consider'd , you shall find another right good reason , why things should be sold for more mony now , than they were then , and yet no whit at all dearer ; and that is , the plenty and abundance of plate and mony , which at this day is to be found in england , more than ever was in time past . for it is not our commodities that be grown dearer , but gold and silver are become more common and of less estimation than they were wont . insomuch , that whereas plate was dainty in great-men's houses , it ruffleth now even at the meanest tables ; and mony is so little respected , as we will give great store thereof for a small commodity . like as in the days of solomon , silver was so plentiful , as it was nothing esteem'd : no , it was holden so base a mettal , as solomon would not make one vessel thereof , no , not for his own service , much less for the temple of god. yet afterward it became so scarce , as when joash undertook to repair the temple , he was driven to tax the people for it , that thereby he might have wherewith to pay the work-men , and whereon to make the holy vessels . so , king edw. iii. having with effusion of much treasure ended his scottish wars , and determin'd to begin afresh with france , practised such means to recover mony to supply these charges , as he got so much into his hands , that writers report , it was very scant and hard to be come by , through the whole realm . and hereupon proceeded the cheapness that you speak of ; men were constrained to give a great deal of ware for a little mony , because they could have no other chaffer for their commodities . but from these particular contingents , you must not raise general consequents : for in that sort , i can shew unto you , that things were much dearer before the time you speak of , than they are now . as in . edw. i. a quarter of wheat was sold for s. so in the time of richard i. all things were so exceeding dear for three or four years together , that a quarter of wheat was then sold for ● . ● . a strange price , if you consider the alay of mony then currant ; and this was almost . years agoe . also in the year . ( edw. i. . ) wheat was ordinarily sold for s. the bushel , and continued at that price almost fourty years together ; rising oftentimes to s. the bushel , and sometimes to a mark and above , as in the year . and in these days , other things bare price accordingly . i could put you many examples more , if these sufficed not : but sure i am of mind , that all occurrents rightly weigh'd , things be little or nothing dearer than in ancient time . viand . you say sore unto me , if you make it apparent that mony were so plentiful as you affirm it . for my own part , i am sure , i have little enough . selv. and i too : but that is not the matter : for what store of sap soever the tree hath , yet many spriggs and leaves do wither away for want thereof . the great ones have it , i warrant you ; and that ultra modum ; but to our matter . two things are the causes thereof : it is brought in more plentifully than in ancient times , and carryed out more sparingly . brought in more plentifully , in respect of greater traffick that we have had within these latter years , even to all places in the world ; by which we have utter'd our own commodities at the dearest ; and fetcht the foreign from the original places , which with far greater charge we were wont to buy at second hand . viand . yea , marry , sir : the less we have of some of that trafficking , the better ( i think ) for england . for by this means , they carry from us our good corn , wooll , cloth , copper , lead , tinn , and such like rich commodities , and the sustenance of our countrey ; and return us for them excess of lawn , camrick , plums , spice , suckets , and other lascivious trumpery , whereby effeminate delicacie is crept in amongst us , and our warlike reputation put in peril to be lost . this kind of traffick may well be term'd glauci & diomedis permutatio . doth the wealth and mony you speak of , come into england by this means ? selv. nothing less . there be other good merchandise enough ; as pitch , tar , iron , copper , deal , madder , woad , cutchaneale , and such like ; and yet those you speak of , are in some measure necessary . but by our traffick into foreign countries , tho' we many times bring home light and frivolous toys , yet they are often accompanied with gold and silver , both in coin and bullion . besides , you know that the treasure ( according to my capacity ) is infinite , which in these later years hath been unshipp'd in england . viand . true ; but goeth it not out as merrily ( think you ) as it cometh in ? or not so fast , as it did in times past ? selv. that is the other point to be consider'd of ; and , i know by certain speeches utter'd in the last parliament , that her majestie 's occasions to disperse it , are exceeding great and urgent : yet a principal part thereof runneth ( as in a circle ) up and down the land. and tho' she sendeth much beyond the seas , for entertainment of her bands and garisons , and executing of her other royal purposes ; yet doth she therein but as all her renown'd progenitors have done before her : for neither england , nor any other realm in europe , have ever wanted this kind of issue . but the reasons that make me think that our wealth should continue with us better now than in times past it hath done ; are , for that the roman-coffers are not now glutted ( as they have been ) with english-treasure continually flowing into them . for it is a world to consider the huge stocks of mony , that those cozening prelates have heretofore extorted out of her majesties kingdoms , by their antichristian and usurpt supremacie . as , by pope innocent constraining king john to redeem his crown at his hands , and to take it for ever in farm , for the yearly rent of . marks , to be paid to him and his successors : by causing henry iii. to maintain his wars against frederick the emperor and conrade king of sicil : by drawing from our kings many contributions and benevolences : by laying upon their subjects , as well temporal as spiritual , tenths and taxes , in most ravenous manner , and that very often . ( so that in the time of henry iii. the realm was by such an extream tax mightily impoverished , as our chronicles witness ; as also at many other times since and before . for when the pope was disposed to use mony , he would tax our people as if they had been his natural subjects ; by many congratulations of the clergy , as . marks at one pull to pope innocent iv. by private remembrances from single bishops , as . marks from the arch-bishop of york to pope clement v. in an. . or . edw. i. and from divers of them jointly . marks to the foresaid innocent . ) by their rich revenue of the first-fruits and tenths , as well of the archbishopricks , as of all other spiritual livings ; now reannext unto the crown by the parliament , in the first of her majesty : by installing , consecrating , and confirming bishops : by dealing benefices : by appellations to the church of rome : by giving definitive sentences : by distributing heavenly grace : by granting pardons and faculties : by dispensations of marriages , oaths , and such like : by selling their blessed trumpery , and many such other things that i cannot reckon , whereof that merchandizing prelate knoweth full well how to make a commoditie : according to the saying of mantuan ; — venalia nobis templa , sacerdotes , altaria sacra , coronae , ignis , thura , preces , coelum est venale , deusque . all this consider'd , and that the summs of mony by them receiv'd before the time of henry viii , were ( according to the value of our coin at this day ) three times as much , as before is shewed ; you must needs confess that the fat of the land larded the roman dishes , whilst our selves teer'd upon the lean-bones . besides , it must not be forgotten , that one tenth granted to the pope , impoverisht the realm more than ten unto the king. for what the king had , was at length return'd again among the subjects , little thereof going out of the land : ( much like the life-blood , which tho' it shifteth in divers parts , yet still continueth it self within the body . ) but whatsoever came into st. peter's pouch , was lockt up with the infernal key ; et , ab infernis nulla est redemptio . england might lick her lips after that ; it came no more among her people . thus , we were made the bees of holy-church ; suffer'd to work and store our hives as well as we could ; but when they waxed any thing weighty , his legates were sent to drive them and fetch away the honey . yea , if his holyness were sharp sett indeed , he would not stick to use a trick of husbandry , rather burn the bees than want the honey . i may tell you too , his legates and nuncio's were ever trim fellows at licking of the hive ; as in our chronicles you may read abundantly . viand . you have made the matter so plain , that i must needs grant that our treasure goeth not out of the land in any comparable measure , as it did in times past . for as you say , tho' these actions of the low-countries , france , portugal , and other places , hath somewhat suck'd us ; yet i consider that we have ever had such a vent , even in the several days of our kings , as in the time of queen mary , king edw. vi. king henry viii . &c. selv. their occasions indeed are best known unto us , because many men living were witnesses thereof . but i will recite unto you cursorily somewhat of the rest , that you may the better be satisfy'd that it is no novelty in england . and for to begin with henry ii. what store of treasure ( think you ) was by him and his wasteful sons ( whereof two , namely henry and john were kings as well as himself ) daily carry'd into france , flanders , saxony , sicil , castile , the holy-land , and other places ; sometime about their wars and turbulent affairs , other some time for royal expence about meeting , feasting , and entertaining the french king , the pope , foreign princes , and such other occasions , the particular whereof were too long to recite . but we may well think , that england must needs sweat for it in those days , to feed the riotous hands of three several kings , spending so much of their time on the other side the seas , as they did . the like was done by richard i. about his ransome and business with the emperor and leopold duke of austria , about his wars in france and the holy-land , where it is said , that by estimation he spent more in one month , than any of his predecessors ever did in a whole year . by henry iii. about the affected kingdom of sicil , and his wars in gascoigne , and other parts of france , and in bounty to strangers . he at one time sent into france , at the direction of the poictovins , . barrels of starling coin , for payment of foreign souldiers ; and at another time , these his wasteful expences being cast up , the summ amounted to . marks , which after the rate of our allay , encreaseth to — by edw. i. about his actions of guien , gascoigne , france , flanders , and the conquest of scotland , and the striking of a league with adolph the emperor , guy earl of flanders , john duke of brabant , henry earl of bar , albert duke of austria , and others , against the french king , and earl jo. of henault his partaker . by edw. iii. about his victories and designs in france and elsewhere ; which exhausted so much treasure , as little or none almost remain'd in the land ; as before is shewed . by henry iv. about the stirs of britain , and in supportation of the confederate faction of orleance . by henry v. about his royal conquest of france . by edw. iv. in aiding the duke of burgundy , and in revenging himself upon the king of france . by henry vii . about his wars in france ; in annoying the flemings ; in assisting the duke of savoy , and maximilian king of the romans . i need not speak of henry viii . whose foreign expences as they were exceeding great , so they are sufficiently known to most men . neither have i more than lightly run over the rest ; who , besides these that i have spoken of , had many other foreign charges of great burden and much importance , and yet not so much as once touch'd by me ; as marriage of their children with foreign princes , treaties of peace between their neighbours , congratulations , embassages , and such like . viand . but what moves you to let slip king john , edward ii. richard ii. henry vi. and richard iii. selv. not for that they were free from foreign expences , which is not possible ; for it oppressed them all : but for that most of them omitted such necessary charge , as in policy they ought to have undergone , both for strengthening themselves with friends , and weakning their suspected enemies ; such as , when occasion serv'd , were like to do them damage . for if edw. iii. had not by this means fortify'd himself with the alliance and friendship of the noble knight sir john of henault , the dukes of brabant and gelderland , the arch-bishop of colein , the marquess gul●ck , sir arnold de baquetien , the lord walkenbargh and others ; and also greatly impai●'d the power of the french king , by winning the flemings from the obedience of the earl of flanders ( his assured friend ) , and by procuring the stay of much of the aid by him expected out of the empire , scotland , and other places ; he had not only fail'd in his french attempts , but also put his kingdom of england in hazard by the scots , who were sure of all the help and backing , that france could any way afford them . so , had it not been for the aid and friendship of the french king , the earls of bullogne , st. paul , the gascoines , and other foreigners ; henry iii. had been bereav'd of his kingdom by his own subjects ; which , notwithstanding he held with great difficulty . so the rest likewise . but on the contrary part , the others whom you nam'd , neglecting this right precious ( tho' costly ) ground work ; not only wanted it when need required ; but with the ruine of their people , state , and kingdom , lost their crown and dearest lives , by the infernal hands of cursed murtherers ; their rebellious subjects getting once the better hand . viand . but edw. ii. used means also to have procured the amity and assistance of divers foreigners , as the duke of britain , the lord biskey , the lady biskey ( governess of the king of castile and leon ) james king of arragon , and others . and rich. ii. sought the like of the hands of the french king ; and so the rest likewise of others . selv. true : not examining the dependencies of time present , they imagined in their prosperity that things to come would ever have good success ; and therefore deferr'd still the doing of it , till extream necessity compell'd them to it : and then their estates being utterly desperate and ruinated , no man willingly would lend them aid or ear . knowing , that when the fury of the disease hath once possessed the vital places , it is then too late to apply physick . this reason made the princes you speak of , to refuse king edward ii. and as for richard ii. when the french king saw how he was entangled and overladen with dangerous rebellions and divisions of his nobles and commons at home ; war in scotland , flanders , spain , portugal , ireland ; sending forces against the infidels ; releiving the expell'd king of armenia ; and many other such turbulent affairs : he then thought ( and truly ) that there was more to be gotten by being his enemy than his friend ; and taking advantage of that opportunity , defied him also , and warr'd upon him . so that king richard , wholly void of aid and hope , fell into the hands of his proud barons , and lost both crown and life . in like miserable sort stood the case with henry vi. for being once descended to the lowest exigent , who almost durst releive him or any of the rest ; for fear ( as our proverb saith ) of pulling an old house upon his own head ! whereas , if in their flourishing estate , they had employ'd their treasure to encounter future perils being yet afar off , they had ( no doubt ) securely held their crowns , and perhaps without much business illuded all the practices of their enemies drawing nearer . had richard ii. at the time when being in france , he bestow'd the value of l. in gifts upon the fickle french king , stay'd there and employ'd the other . and odd marks ( by him also wasted at that bravery ) in gaining the amity of his neighbour princes , to serve his turn when need should be ; it is not unlikely but afterwards it might have sav'd all the rest . for it is a good rule that is taught us in the art of fencing , to break the blow or thrust that might endanger us , as far from our bodies as we can . for , as i said before , when things be drawn to the last period , the time of help is past , according to the saying of hecuba to her betray'd husband , being about to arm himself . — quae mens tam dira , miserrime conjux , impulit his cingi telis ? aut quo ruis ? ( inquit ) non tali auxilio , nec defensoribus istis tempus eget ; non si ipse meus nunc afforet hector . most royal therefore are the providence and expences of her excellent majesty ; who ( as it were with linceus eyes ) looking into the lowest secrets of the practices of her enemies , hath not only for these . years utterly cancell'd and made them frustrate ; but foreseeing also what mighty consequences may depend on mean beginnings , omitteth no diligence to defeat them whilst they are yet in the shell ; or so to environ the mark whereat they are levell'd , as being hatch'd , they shall be able to perform nothing . knowing it to be far greater wisdom to preserve the body , ( whilst it is sound ) from all infirmities , than by admitting a dangerous disease , to gain the credit of an excellent cure . and tho' mony be the blood wherein the life of all common-wealths , as in a nest , is cherisht ; yet nature teacheth that to preserve health and cure an impostumate disease , we ought to let blood out , and that sometimes in great abundance . and , as themistocles said , pecunia nervus belli , ( mony is also the sinews of war ; ) and look how necessary peace is in a common-wealth , so necessary is war to beget peace ; for peace is belli filia , ( the daughter of war. ) but to return to our matter : lest we fare like the unskilful hounds , that undertake a fresh hare , when they have hunted the first till she be almost spent . it appeareth by that that hath been said , that a main port by which our treasure hath been vented from us heretofore , is now shut ( god be thank'd ) and that instead thereof no new is opened . so that thereby our store must needs remain better by us than it hath , and we by consequence must be the richer . it is also to be added , that whereas in former times , much of the treasure that came into the land was buried up in superstitious employments , as about images , shrines , tabernacles , copes , vestiments , altar-cloaths , crucifixes , candlesticks , &c. by means whereof , the common-wealth became no whit richer , than if that part so employed , had never come within the land : now we do not only retain that idolatrous charge still in our purses , ( which makes us much the wealthier ) but the rest also ( which for many hundred years together was so employ'd ) is now to our greater enrichment return'd again amongst us , by dissolution of these popish ceremonies . viand . you may also reckon the mony given to maintenance of priests , monkery , lights , obits , anniversaries , and all the plate and treasure of the clergy at that time , to be of the same sort . selv. that did edward the first well consider : and therefore to the end that he might dig it out of the grave , and bring it abroad again among the people that had need thereof ; he suffer'd the matter to be so handl'd by one of his treasurers , that certain captains appointed to work the feat , placing their souldiers in every quarter through the realm , made search at one time ( in july at three of the clock in the afternoon ) for all such mony , were it hid or laid up in hallowed places ; and taking the same away , brought it unto the king ; who dissembling the matter ( as he that stood in need ) excused the act done by his treasurer , and thought it no offence , but rather a good work . besides all this , there is yet another means whereby the treasure of our land must needs be much encreased : and that is by divers good laws and statutes , made both for causing it to be brought into the realm , and also for containing it within the lists of the same , when it is come . and that is by the stat. . edw. iii. whereby it was enacted , that every man ( denizen or stranger ) that should transport any wooll out of the land , should find sufficient sureties to bring again unto the king's exchange , for every sack of wooll transported , plates of silver to the value of two marks . and by the statute of . henry v. ( confirm'd and quickned by . hen. vi. ) which provided , that every merchant-stranger , buying wooll in england , not coming to the staple to be sold , shall bring to the master of the mint of the tower of london , of every sack , one ounce of bullion of gold : and in the same manner , of three pieces of tin , one ounce of bullion of gold , or the value in bullion of silver , upon pain of forfeiture of the same woolls and tin , or the value thereof , to the king. it is provided also for containing of mony within the land , that all merchant-strangers shall employ all the mony receiv'd by them within this realm , upon the merchandise and commodities of this realm , ( deducting their reasonable expences ; ) and that they shall give sufficient surety for doing hereof , and the trespasser to forfeit and be punished grievously , as in the statutes is contain'd ; . hen. vii . affirming and enlarging , . edw. iv. and many other of like effect . and by . hen. vii . that no man dwelling in england , shall pay or deliver wittingly to any merchant or other born out of the king's obedience , for any merchandise or wares , or in any other wise , any gold coined , plate , vessels , bullion , jewels of gold or silver , upon pain of forfeiture thereof . and by . edw. iv. ( affirm'd by . hen. vii . and for a time continued by . and . henry viii . with a mitigation of the bloody penalty ) all men , except such as had the king's licence , or were dispensed with by those statutes , were utterly inhibited from carrying out of the realm any manner of coin , plate , vessel , massy bullion , jewels of gold or silver . which law , and many other of the like effect , tho' they continue not now in force , yet the fruit thereof remaineth to us still , as children enrich'd by their fathers sparings . besides , it is not altogether to be passed in silence , that our treasure is somewhat increased by the gold and silver try'd out of our own mines here in england . which , tho' it be little or nothing , in respect that in this latter age we have wimbl'd even into the bowels of plutus's treasury ( the western indies , ) yet is it so much , as our historiographers , both new and ancient , have thought it worth the noting ; and all our kings from time to time have made especial account of ; as well appeareth by a multitude of leases thereof granted by them to many noble personages , extant in the checquer records ; and also by the process and argument of the earl of northumberland's case concerning a copper-mine , . eliz. which in plowden's commentaries is at large reported . but be it little or great , many littles ( as our adage saith ) make a great , and continual accession amasseth at length to a mighty thing ; as is well seen in the hill testacchio in rome , which standing in a plain , and being about half a mile in compass , and exceeding in height any tower in the town-wall , is said to have been made of the shards of the potts wherein the tribute-mony was brought to rome ; or as pleaseth rather the more learned sort , of broken potts thrown out of the vii . college of potters , built by numa pompilius . but be it the one or other , the semblance serves my turn , and there 's an end . the places or dwellings of the arch-bishops and bishops of this realm , now or of former times ; in which houses their several owners have ordinary jurisdiction , and be as parcel of their diocess , as is recited in the stat. of . hen. viii . ca. . altho' they be situate within the precinct of another bishop's diocess . . the lords arch-bishops of canterbury of long time enjoyed and do enjoy lambeth-house ; as appeareth in historia cantuariensium archiepiscoporum , set forth ( as is thought ) by dr. ackworth in the lord arch-bishop parker's time . the which house was never severed from the lord arch-bishop's see of canterbury , since the annexion thereof to that see. . the house at lambeth-marsh , commonly call'd carlisle-house , was the bishop of rochester's palace until about . hen. viii . as appeareth in the foresaid historia cantuariensis , and also in the act of parliament of . hen. viii . ca. . made against poysoning ; whereby it doth appear that the house of john bishop of rochester was at lambeth-marsh . but afterwards , about an. . hen. viii . or after , the same ( being some ways the kings ) was convey'd to robert aldridge bishop of carlile and his successors , in exchange for his houses near ivie-bridge , ( now the earl of worcester and salisbury's ) and other houses there toward the street , and of a yearly rent of l. or thereabouts , out of those houses given to the bishop of carlile and his successors , for those houses formerly call'd carlile-place . but the said bishop aldridge leas'd the house of lambeth-marsh for some small and not valuable rent , for divers years yet enduring . . the bishop of rochester had given for his palace to dwell in , certain houses lately call'd rochester-house near adjoining to winchester-place , and sometime ( as it is reported ) parcel of the possessions of the priory of st. swithins in winchester ; but that place is lately divided into several little dwellings . winchester - place , with the liberty of the prison of the clynke and bancke , belonged and doth belong to the bishop of winchester ; and the house was in edw. the sixth's time , conveyed to the marquess of northampton , who builded the gallery there : but in queen mary's time , the same was restored to that see , where it so continueth . . the lord arch-bishop of york's house was the white-hall , much enlarg'd and reedify'd by the cardinal wolsey then arch-bishop of york ; as by the arms remaining in wood , stone , and glass , in sundry places of that house , may appear . and after the said cardinals conviction of premunire , and death , the same was made parcel of the king's palace at westminster , by purchase from the arch-bishop of york , as appeareth by the stat. of . hen. viii . ca. . but afterwards , until anno . or . of queen mary , the arch-bishop of york had no other dwelling-place near london , in right of his see or by reason of his arch-bishoprick , but the house at battersey ; and then queen mary gave to arch-bishop heath and his successors , the late duke of suffolk's house , called suffolk-place in southwark , which the arch-bishop of york ( by confirmation of the dean and chapter there ) shortly after sold away to others , and purchased to his see york-place , where the lord chancellor remaineth , together with the houses adjoining to the street . which house was sometime the bishop of norwich's place ; and the same , among all or the greatest part of the possessions of the see of norwich , about an . . hen. viii . were convey'd to the king by a private act of parliament , in recompence of the union of the monastery of st. bennets , and the possessions thereof to that bishoprick ; being of far better value than the ancient lands of the bishoprick of norwich assur'd to the king , as is recited in the statute of . hen. viii . ca. . whereby the bishop of norwich is made collector of the tenths of his diocess , as other bishops were ; being formerly free'd thereof by the said private statute of . hen. viii . which said now york-place , by hen. viii . was convey'd in fee to charles brandon duke of suffolk ; and after the death of the said duke's sons , the coheirs of the duke's sons sold the same to the said arch-bishop heath and his successors . . but the bishop of norwich was limited by the said private act of . henry viii . to enjoy perpetually in succession , a prebend in the free-chappel of st. stephens at westminster , after dissolv'd by the statute of dissolution of colledges and free-chappels . ed. vi. and the house thereto belonging in chanon-row , whereof then was incumbent one knight ; but the house is said to be leas'd for some small rent by the bishop of norwich to sir john thinn knight in edw. the sixth's time , for many years enduring . and that the house now call'd york-place , was belonging to the bishop of norwich , is proved by a case . edw. iv. fol. . in a presentment against the bishop of norwich in the king's bench , for annoyance of a way inter hospitium episcopi norwicensis & dunelmensis , in parochia sancti martini in campis . . durham-house ( as appeareth in that case ) was the bishop of durham's house ; and bishop tonstal about the th . of hen. viii . convey'd the same to the king in fee : and king henry viii . in recompence thereof , granted to the see of durham coldharborrowe , and certain other houses in london . and after , edw. vi. about an . . granted durham-house to the lady elizabeth his sister for life , or until she be otherwise advanced . after , the bishoprick of durham , by a private statute not printed , of . edw. vi. was dissolved , and all the possessions thereof given to king edw. vi. who shortly after convey'd in fee the said bishop's late house at coldharborrowe , and other houses in london , to francis earl of shrewsbury and his heirs . and after , the d. mariae ca. . the stat. of . edw. vi. for dissolving that bishoprick is repeal'd ; but the mansion-house of coldharborrowe and other tenements in london , so granted to the said earl , be confirm'd . and the bishop , by that act , prayeth a recompence from the queen at his charge . whereupon , queen mary , about anno v. or vi. of her reign , granteth to the said bishop of durham , her reversion of durham-place in succession ; which coming into possession by the death of queen elizabeth , the late bishop of durham ( now lord arch-bishop of york ) enter'd into and enjoy'd the same in the right of his see , by opinion of the chief justices of the land , referr'd by the king , being opposed by sir walter rawleigh ; as likewise doth the now bishop of durham . . the bishop of lichfeild and coventry ( of old call'd the bishop of chester , before the new erection of the new bishoprick of chester ) had his place where somerset-house is builded . . . as likewise the bishops of worcester and landaff , had there sometime a house ; as stow in his book of survey of london saith . but the said three bishops places , together with a parish church call'd straunde-church , and the greatest inn of chancery call'd straunde-inn , belonging to the middle temple , were defaced without recompence to any of the said three last mentioned bishops , parish church , or inn of chancery : other than to the bishop of worcester ; who had in respect of his former house , a house in the white fryers , which he enjoyeth . . arondell-house ( now the lord admiral 's ) was the bishop of bath and wells's ; and was assured , in edw. vi. time , to admiral seymer ; and is now quite sever'd from that bishoprick without recompence . . likewise , the bishop of exeter's place , after call'd paget , leicester and essex-house , of the several owners of the same . and it is thought the bishop of exeter hath likewise no recompence for the same , of any other house in or near london . . the bishop of sarum's place , ( now call'd dorset-house , before call'd sackvile-house , and of former time salisbury court , being in long lease made by bishop capon , who was bishop there in hen. viii . edw. vi. and queen mary's time ) was exchang'd temp . reginae elizabethae , by the great learned reverend father bishop jewel , for recompence of good value in lands in his diocess , or elsewhere in the west country . . the bishop of st. david's place , was near adjoyning to bridewell , upon the ditch that runneth to fleet-bridge into the thames ; and was granted in fee-farm for a mark rent ( temp . edw. vi. ) to dr. hewick the physician ; under which purchase the same is now enjoy'd . . the bishop of hereford's place ( as stow in his survey of london , pag. . saith ) is in the parish of st. mary de monte alto or mount-halt in london ; of which bishops patronage the said church also is ; which place is in the tenure of the bishop of hereford or his tenants . . . the bishop of london's place at pauls , was never sever'd from the bishop's possession . and likewise ely place , from the bishop of that see ; other than such part thereof , as the late lord chancellor hatton had by lease for many years , from the late bishop cox. . the bishop of bangor's house is , or lately was , mr. aleworth's house in shoe-lane , by a lease from the bishop of that see , temp . edw. vi. yeilding some rose , or other small or not valuable rent . . the bishop of lincoln's place , was southampton-house in holborn , convey'd temp . edw. vi. to the lord writoheseley ( then lord chancellor ) in fee , for which the bishop hath no other house in or near london , as is thought . . the bishop of chichesters place ( or palace , as matthew paris in his chronicle calleth it , reciting the story of the lord arch-bishop of canterbury visiting st. bartholomews ) did at that time lye in that house which was in chancery-lane ; where sir richard read sometime a master of the chancery , and mr. atkinson the counsellor at law and others , dwelt and dwell in ; and is said to be in lease from the bishop's predecessors for divers years . what the rents reserv'd yearly be , the lease will shew the same . . the bishop of st. asaph never had place at or near london , that i can learn of ; neither in the valuation of the see ( where all his possession ; and jurisdictions be valu'd in the first-fruit-office ) is there mention of any such place ; neither doth the now bishop of that see know the same . . the bishop of the isle of man ( call'd sodorensis episcopus ) altho' the same be an ancient bishoprick , yet was he never lord of the parliament of england ; having no chapter or other clergy , but only an archdeacon and all the incumbents of the several parishes of that isle : and before the said statute of . hen. viii . was neither a suffragan of the province of were wont in former times to ride on mares or mules . . prohibited to take cognizance of wills. . blackney harbour . . blicking . . the birth place of q. anna bullen . ibid. bocland , what . . not subject to homage . . bond-men , anciently not valu'd or rated . . reputed only as part of their master's substance . ▪ . boors , who . . bouthorpe . . bramsil . , . brancaster . , . breakspear ( nich. ) converted norway . . made cardinal and pope . ibid. breclys . . brennus a britain invades greece . . his attendants . ibid. brictrick a saxon thane . . britains , none of 'em remaining after cadwallador's departure . . their laws alter'd by the romans . . bronholm . . brotherton ( tho. ) earl of norfolk and earl marshal of england . . when he dy'd . . buckenham . . burg-castle . . burghesses , of old , not call'd to consult of state-matters . , . burghbote and brugbote . , , . burnham in norfolk . . burnham-east in com. bucks . . by , what it signifies . . . by-laws . , . c cadwallader prince of the britains , fled into armorica . . calthorp . . king canutus , how he publish'd his laws . . his constitution touching festivals . . capet ( hugh ) usurpt the kingdom of france . he grants his nobility a perpetual enjoyment of their feuds and honours . ibid. & . capitales plagii . . capitanei regis & regni . . caput feodi , aut capitaneus feodi . . carbrook . . carolus calvus emperour and king of france , his synodical edict . , . carolus magnus or charlemaigne , divided his territories between his three sons . . castle-acre . . castle-rising in norfolk , the parson has the probate of wills in that town . . caston . . castor . , . ceorls , who . . of two sorts . . the chiefest part of their profits redounded to their lords . ibid. their service no bondage . ibid. their valuation and priviledges . ibid. not capable of a knights fee. ibid. champain in france . . chancery-court . . charta de foresta . , . charter , the first by whom made and where kept . . saxon charters usually writ in that language . ibid. charters of thane-lands granted by several kings . , . chichley ( henr. ) arch-bishop of canterbury canoniz'd st. george's day . . the occasion of that constitution ibid. chindavintus king of the western goths , his law concerning wills. . cingulum , quo sensu accipiendum . . cinque-ports , priviledges granted to them by king edward the confessour , &c. . clacklose-hundred . . clergy-men forbidden to use hunting , , , . & seq . when they took upon them to prove wills. . prohibited by justinian to meddle with those matters . ibid. cley ▪ harbour . . de clifford ( rob. ) marshal of england . . k. canute's charter of donation to the thane orc. . coin of england , in q. elisabeth's time . , &c. colloquia . . comites , who , and why so call'd . . commendati . . congham . . conradus salicus made a constitution touching feuds . , . consecration , a strange one of eadmer a monk of canterbury . . consilium regni . . controversies , among the ancient britains , by whom judg'd . . conveyance of lands , how made by the saxons . . cosshering , what . . cossey . . counties in england . . county-courts how often kept . . were proclaim'd a sennight beforehand . ib. earl's county and bishop's diocess had but one limit . , . ecclesiastical and secular causes there decided . . court-baron . . it s original . . court-leet . . sometimes granted to the lords of mannours . ibid. court-christian or ecclesiastical , when it sprung up . , . high courts of justice , why they sit not in the afternoons . , . why they sit not all some days . , . why they sit on the rogation days . ibid. why on some festivals and not on others . the admiralty-court , why always open . . chancery-court said to be always open . ib. cowshil . . creak . . cromer . . crostwick . . crowner's office , not before the conquest . . d dane-blood . . dane-law . . danes , not capable of devising lands by will. david i. king of scotland and earl of huntingdon . , . dean , his office and functions . . the priviledges of a bishop's dean . ibid. deerham ( west ) . defensor plebis . . degradatio militis . . deira , a province . . demains or demesne , what . . ancient demesnes had not any lands by knight-service . , . d'evreux ( robert ) earl of essex , viscount bourchier , &c. . sent into spain with an army . ibid. storm'd cadiz . ibid. created marshal of england . ibid. made lord deputy of ireland . ibid. when beheaded . ibid. dies juridici . , . dies feriales . . dies pacis ecclesiae . ibid. . . dies pacis regis . ibib . & . dies novem lectionum . . dies feriati repentini . . dower , why judg'd to belong to the ecclesiastical court. . downham . . druides , who . . the sole judges of controversies among the old britains . . suppos'd to have us'd the greek tongue . had no knowledge of the latin. ibid. dudley ( john ) duke of northumberland and earl marshal of england . . e eadmere a monk of canterbury made arch-bishop of st. andrews in scotland . . king eadwigus's charter of thane-lands granted to aelswine . . earl marshals of england . , , . earl of a county ; see alderman earldoms not hereditary in ancient times . . earldoms in france . ibid. & . earls among the saxons . , . earl no title of dignity anciently . . their office depended on the king's pleasure . ibid. an earls heriot . . easter-term , how limited anciently . . easter-week , when exempted from law business . . ebsam in surrey . . king edgar's charter of donation of certain thane-lands . . another charter granted by him to the monastery of hide near winchester . . by whose advice his laws were made . . king edward the elder , how he propos'd his laws . . the first that prohibited law business on festivals . king edward the confessor's charter of donation to thola . . several priviledges granted to the cinque-ports . . his laws by whom collected . . his constitution touching festivals . . edward earl of norfolk and marshal of england . . dyed in his minority . ibid. edwin , son of othulf , gave certain lands to arch-bishop odo . . elfere a saxon bequeath'd snodland to the church of st. andrews . . publish'd his will before odo arch-bishop of canterbury , &c. . elfstane bishop of rochester . . elfsy priest of croyden . . ellingham . . elmham . . erpingham . . erpingham ( tho. ) commissioner for executing the office of earl marshal of england . . escheats , the signification of the word . . no feodal escheats among the saxons . , . escuage , what in the empire . . neither its name nor rules us'd by the saxons . . essoyning , the manner of it not in use before the conquest . . king ethelbald's charter to the monks of croyland . . ethelbert the first christian king of the saxons . . he causes his laws to be put in writing . ibid. he took somewhat from the roman law . etheldreda daughter of k. alfred , her dowry . . king etheldred ordain'd every eight hides of land to find a man for the naval expedition . . his charter of donation to aethelwold . . another charter granted by him to his thane sealwyne . ibid. king ethelstane , whom he consulted in making his laws . . king ethelwulfs charter of priviledges . . he divided his lands by will among his three sons . . euricus king of the goths . . exauctoratio militis . . expeditio , what it signifies in latin. . f fakenham . . fasti , or law days among the romans , why so nam d. . seldom two fasti together . . fasti proprie . ibid. fasti intercisi . ibid. fasti comitiales . ibid. all the fasti not apply'd to judicature . ibid. fealty , the definition of it . . no fealty but for a fee. . what manner of fealty among the saxons . ibid. felbrig . . felewell . . feodal words , none among the saxons . , , . feorme what it signifies in the saxon tongue . ferdwite . . festa majora , vel principalia . . festivals , how exempted from law days . . the differences of them . . the festivals of st. peter and paul. . of st. george . . of gun-powder treason . ibid. a feud , what it is . . it s general and particular definition . . feuds among the jews . ibid. among the gauls . , their original . . made perpetual and hereditary . . when and how they became so . ibid. especially in england . ibid. the difference between them and benefices . , . the great growth of them . ibid. no proper feuds before the conquest . ibid. feudal-law generally receiv'd in every kingdom . . it s youth , infancy , and full age . . where it had its original . ibid. feudatarii . . feudum militare & nobile . . rusticum & ignobile . ibid. feuda majora & regalia . ibid. the word feudum or feodum not us'd in k. beorredus's days . . fideles , who . . fidelity , what . . fines for licence of alienation . . the thane-lands free from them . ibid. not in use among the saxons . . fitz-alan ( jo. ) lord maltravers , marshal of england . . fitz-osborn ( will. ) lord marshal to king william the conquerour . . flegg . . flitcham . . flitchamburrough . , . folcland , what . . not alienated without licence . , . free from homage . . ford-park . . forests , belong to the king alone . . subjects can have 'em only in custody . ibid. fouldage . . franc-almoin . , . frank-tenements . . freeborgs or tithings . . frekenham . . g garbulsham . . gavelkind what , and why so call'd . . observ'd throughout all kent . . at first the general law of all nations . ibid. germans , their customs and tenures carry'd into several countries . . they receiv'd the roman law. . gey-wood . . gilbert , the third son of william the king's marshal . . made marshal of england . ibid. kill'd in a tournament . ibid. gimmingham . . goths , carry the german laws into spain , greece , &c. . they were the first that put their laws in writing . . trusted priests with the passing of wills . government ; the ancient government of england . . &c. . grand-days in france and england . . grand serjeanty . . grantesmale ( hugh ) marshal under k. william i. . greeks , from whom they had much of their ancient rites . , . gresham . . gressenhall . . grey ( rad. de ) exauctoratur . . guthrun the dane . , . h hales . . harkela ( andr. de ) exauctoratur . . harleston . ibid. hartlebury-park . . hawkins ▪ pet ) keeper of bramsil-park wounded by arch-bishop abbot . , &c. hengham . . king henry i. imprison'd the bishop of durham . . his constitution about festivals and law-days . . king henry ii. ratify'd the laws of edw. the confess . and will. the conquerour . . henry bishop of winchester conven'd k. stephen to his synod . . heribannum , what . . heriots paid after the death of great men. , to whom forgiven . . the difference between them and reliefs . , . by whom , and when first ordain'd . . what the word heriot signifies . ibid. heriots and reliefs issuing out of the same lands . . no badge of lands held by knight-service . ibid. heydon . . high courts : see , court of justice . hikifricus pugil quidam norfolciensis . . hilary-term , its ancient bounds . , . the end of it sometimes held in septuagesima . . hockwold . . holkham . . holland ( tho ) marshal of england . . holland ( tho. ) earl of kent duke of norfolk . . made earl marshal of england . ibid. holland ( tho. ) farl marshal of england during the minority of john mowbray . . holme in norfolk , homage , by whom first instituted . . feodal homage . . of two sorts , ibid. when begun in france and england . ibid. the reason of it . , . who are to do it . . usual in soccage-tenure . . as well a personal as a praedial duty . ibid. homines commendati . . hominium & homagium , what . . homagium ligeum . ibid feodale aut praediale . ibid. hoveden ▪ roger ) when he wrote . . howard ( sir john ) kt. created duke of norfolk and earl marshal of england . ● . slain in bosworth-field . ibid. howard ( tho. ) the son of the former , earl of surrey . . imprison'd in the tower. ibid. defeated the scotch under k. henry vii . ibid made lord treasurer of england and restor'd to his fathers dignities . ibid. kill'd james iv. k. of scotland in battel . ib. sent ambassadour into france . ibid. made vice-roy of england . ibid. where he dy'd . ibid. howard ( tho. ) the fourth duke of norfolk of that name , and earl marshal of england . ● howard ( tho. ) the grand-son of the former earl of arundel and surrey . ibid. the first earl of england . ibid. made earl marshal for life . ibid. hugh bishop of coventry exercis'd the sheriffs place . . excommunicated . ibid. de hum●z ( richard ) tribunus regis or marshal to king henry ii. . hundradors . . hundreds , their original . . hundred courts . . hunting forbidden to clergy-men . , , , , . hydes , what . . when disus'd . ● . i ibreneys ( rad. de ) . iceni . . eorum nomina & derivatio . ibid. icenia . . ejusdem termini . ibid. coelum & solum . ● . ina king of the west saxons adjusted the quantity of rent for every plough-land . . by whose advice he made his laws . . made a strict law against working on sundays . . ingolsthorp . . inland , what . . intwood . . k. john's magna charta . . john marshal to king henry ▪ i. . irregularity of clergy-men , wherein it consists . , . i se fluvius unde dictus . . ejusdem aestus . . islepe ( sim ) arch-bishop of canterbury . . jury taken out of several hundreds in a county . . jurours prohibited to have meat , &c. till agreed of their verdict . . jus gentium . . justices of evre when instituted . . justinian the emperor , when he flourish'd . . he prohibited clergy-men to take cognizance of wills. ibid. justitium , what ▪ . k keninghall . . kent , the custom of gavelkind in that county . . kettringham ● . the king the fountain of all feuds and tenures . ● . the king to have his tenants lands till the heir has done homage . ● . the king universal lord of his whole territories . . anciently granted churches to lay-men . knight , what among the saxons . , . why there are but two knights of the shire for a county ? . knight's-fees . , , , . when introduc'd . . the number of them . ibid. the value of a knights-fee . ibid. knight-service , . kymberley . . s sacha & soca , what in the saxon tongue . . saliques bring the german feodal rights into france . . sall in norfolk . . sandringham . . sanhadrim , when and where the judges of it sate . . satrapies among the saxons . . saxons the first planters of the german rites in great britain . . their charters translated . . the manner of making their conveyances . distinction of persons among them . . how many degrees of honour they had . . how they held their lands . . what oblig'd 'em to so many kinds of services . ibid. saxons very much given to drunkenness . . when they took possession of england . . they swept away the roman laws there . yet took somewhat from them . . why their laws were not at first put in writing . ibid. when they had written laws . ibid. the use of wills unknown to the ancient saxons . . our saxons observ'd the civil law in their wills . . scutagium . , . sedgeford . . segrave ( nicholas ) marshal of england . . seignory , wherein it consists . . services , how many sorts of 'em upon lands . . personal services . . praedial . ibid. alodial . ibid. beneficiary . ibid. colonical . ibid. servitia militaria , what . . the difference between them and servitutes militares . ibid ▪ seymour ( edward ) duke of somerset , nephew of king edw. vi. . made lord treasurer and earl marshal of england . ibid. shardlow ( joh ) justice of oyer , had a licence to hear causes on a festival . , . sharnburn ▪ . history of the family . , &c. shelton . . shouldham . . shyre gemot , what . . signioral authority , what . ● . snetsham . , , , &c. socage . , , , . socmen . ● , , . sprowston . . stanchow . , ● . star ▪ chamber court. , . stigand arch-bishop of canterbury depos'd . . stock-chappel . . stow-bardolfe . . strangbow gilb ) earl of pembroke and marshal of the king's palace . . suiters of the hundred . . when and by whom call'd at this day . ibid. summons , the manner of it in the empire . . sunday , how exempted from law suits . . sustenance , what . . swasham . . swainmote-courts . . syndici , who . , . synod of eanham , when held . . t talbot ( george ) earl of shrewsbury . . executed the office of lord high steward of england . ibid. tallagium . . tasburg . . tassilo duke of bavaria did homage to king pipin . . tenant ▪ lands of how many sorts . . tenants by knight-service . . tenant in capite . . tenant in menalty . ibid. tenant paraval . ibid. tenant's land or the tenancy . . tenants what they were in ancient time . . tenants in socage . . tenants forc'd to pay a fine upon the marriage of a daughter . . to furnish their lords with provisions . ibid. to present them with gratuities . ibid. tenure in capite . . by knight-service . , . the original of tenures . . tenure in socage . , . tenures for life . ibid. what tenures were in use among the saxons . . when first us'd . ibid. no tenures in capite among the saxons . . tenure in capite of two sorts . ibid. the fruits of feodal tenures . . the name of tenures not us'd by the saxons . . terminus , what it signifies . . when the word became frequent . ibid. terms , their definition and etymology . . several acceptations of the word . . full term and puisne term . ibid. the original of terms ▪ , & . two terms among the welch . . the terms laid out according to the ancient laws . . the ancient bounds of hilary-term . , . of easter-term . . of trinity-term . , . of michaelmass-term . , . how trinity term was alter'd . . michaelmass-term , how abbreviated . . why the terms are sometime extended into the vacation . . terra regis . . terrae testamentales . . terrington . . tertium denarium . . testaments and last wills not in use among the ancient hebrews . . not found in scripture before christ's time . ibid. expresly mention'd by st. paul , ibid. not us'd by the saxons or normans . ibid. the custom of making wills from whom taken up . ibid. how many witnesses to a will requir'd by the civil law. . thane or theoden , who . , . their several kinds . . not properly a title of dignity . ibid. the etymology of their name . ibid. the quality of their persons . ibid. the nature of their land. . the word thane has no relation to war. . a thane's heriot . . thane-lands , not subject to feodal service . . charters of thane-lands granted by saxon kings . , . the occasion of granting them . . thane-lands alienated . ibid. devised by will. . granted to women . ibid. no service upon 'em but what was express'd . ibid. dispos d of at the pleasure of the owner . . charged with a rent . ibid. might be restrain'd from alienation . ibid. thane-lands and reveland , what . . thani majores & minores . . thani regis . ibid. theinge . . his jurisdiction . ibid. theowes and esnes , who . . thetford . . thokus dominus de sharnburn . . thola the widow of ore , had a grant of certain lands of k. edw. the confessour . . obtain'd a licence to devise her lands and goods . . thrimsa , what . . thrithingreves , or leidgerev●s , their office and authority . . what causes were usually brought before ' em . ibid. tribunus militum , rei militaris aut exercitus . . tribute . . trimarcesia . what . . trinity-term , its ancient bounds . , . how it was alter'd and shortned . . trinodis necessitas . , . trithings or lathes . . why so call'd . . turfs , why so call'd . , . tydd . . tylney . . tylney-smeeth . ibid. v vacation , what . . a particular vacation appointed by the longobards . . valvasini . . valvasor . , , . vassalagium , what . . vassalli . , . venatio clamosa , quieta , aut modesta . , . villanus , what it signifies in latin. . w de waceio ( radulphus ) princeps militiae normannorum . . wallington . ● . walpole . . walsham . . walsingham . . walsoke . . walter arch-deacon of oxenford . . walter bishop of durham bought northumberland . . sate himself in the county court. ibid. by whom kill'd . ibid. walter marshal of england , the fourth son of william the king's marshal . . when he dy'd . ibid. walton . . walworth ( sir will ▪ ) lord mayor of london . . wapentakes . . watton . . waxham . . wardship , no profits arising from it in the saxons time . . the original of its name . ibid. wardship in scotland . . warenna ( guil. de ) ● . were , or weregild , what . . west-acre . . west - saxon-law ▪ . wic , what it signifies in the saxon tongue . . wichingham . . wigenhall . . william the conquerour transfer'd his country customs into ireland . . makes feuds and tenures hereditary there . ibid. priviledges granted by him to the cinque-ports . . gave certain lands to baldwin abbot of st. edmund s-bury . his laws made by the consent of the bishops and barons . . his constitution concerning festivals and law ▪ days . ● . made a law that no man should be put to death for any crime . . laws of scotland , reg. maj. laws ( saxon ) in the king's library , ms. . lind. cland. despons . . littleton ( justice ) . his tenures . . longobard-laws . , . loyseau de seigneurs . , . ludovici pii exauctoratio . . vita . . lyndwood . . m major ( joh. ) . an ancient manuscript of saxon laws in the king's library . . marculphus . , , . matthew paris . , , , , , ● , , , , , . merula . . n neapolitan and sicilian constitutions . , . norman customs ▪ , . novella of constantine porphyrogenneta . . o osbertus . . oswald bishop of worcester . p pancirollus . , pasquier . . paulus diaconus . . pausanias . . philo judaeus . . placita coronae . . de platea ( joh. ) . plinius . . polydorus virgilius . , . prosper . . r radevicus de gest . frid. i. . radulphus niger . , . ramsey-abbey ms , , , , , . rastal . . s selden . . sigonius . . skeneus . . smith ( sir tho. ) , . soto . , . spelman's glossary . , , , codex legum . . spelmans concilia britannica . , , , . sprott , a monk of canterbury . . statius . . stow. , , , , . suarez . . suecus ( gravius ) . synod of eanham . . t tabienus . , . tacitus . , , , , , , , , . v vegetius . . vincent . , . virgilius . . w walsingham hypodigma neustriae . , , , . waraeus . . k. william i's . laws . , . william of malmsbury . , . y york herald . , . finis . notes, typically marginal, from the original text notes for div a -e pag. . pag. . pag. . durham-house . notes for div a -e birth . praef. ad gloss . edit . by j. a. education . praef. ad gloss . letter against impropriations , printed among the treatises publisht by jer. stephens , . t● sent to lincoln's inn. marriage jac. employments . hacket , life of bishop williams , part . pag . knighted came to live in london . pref. to the gloss . study of our ancient historians . law-terms , chap. in ms. oxon glossary . praef. ad gloss . brady , answ . to mr. petit , pag. . the second part of the glossary . mr. petit's jani anglorum facies nova , p. . & . and the answer to it , by dr. brady , pag. . brady , pag. . councils . praef. ad concil . vol. i. 〈…〉 councils . 〈…〉 council . the second volume of the councils . life of mr. somner . mr. nicolsons english library , part . pag. . 〈…〉 as●mol oxon 〈…〉 pag ▪ ● . larger work of tithes . the history and fate of sacriledge , ms ath. oxon p. . part . codex legum veterum ms. de sepultura . aspilogia book of abbreviations . 〈…〉 pref. to that book . 〈…〉 〈…〉 dedicat. ad tho. adamsium ante bedam . acquaintance . children . praef. ad concil . t. . camd. ep. . 〈◊〉 spelman clement spelman . wood , at h oxon. p. . part . 〈…〉 notes for div a -e 〈…〉 d●finit●●n of a 〈◊〉 . th● 〈…〉 . cujac . in praefat . ad . lib. . feud . p. . & seq . cujac . ad lib. . feud . tit . . p. . instances of feuds among the 〈◊〉 . chron. ●hap . , & ● ibid. cap. . cap. . num. . . kings . . lib. de phocid . p. . among the gauls . bell. gall. lib. . p. . ambact● . bell. gall. p. . ibid. p. . genes . . . germ. mor. p. . cujac . ad constit . lotharii feud . lib. . p. . bell. gall. lib. . p. . germ. mor. bell. gall. p. . in epist . ad bon. vulcan . vid. bellagines in glossario nostro . cujac . in pr●● . a● lib. p. . cujac . ad li● . feud . p. . vid infra chap. ● tenu●e●●●r li●e . how feuds became hereditary . feuds hereditary in england . comment . in consuet . f●●d . cap. . rex mediolan . lib. . gunt . p. . a● lib. . feud . tit. . p. . the great growth of 〈◊〉 ●s to title . cujac . feud . lib. . p. . ibid. lib. . p. . feud . lib. . p. . 〈◊〉 . ● . . 〈◊〉 . no proper feuds before the conquest . what tenures were in use among the saxons . tenures when first used . translation of saxon charters . no feodal words among the saxons . the charter of beorredus examined . hist . lib. . c. . saxon charters in the saxon tongu● . concil . brit. p. . in praesatione illius libri . feudum not in use in beorredus's days . chap. . & . ad marcul● . p. . p. . prooem ad lib. feud . p. . feuda and beneficia . lib. . tit. . &c. lib. . tit. . &c. norm . reform . p. . in gul. rege . no tenures in capite among the saxons . tenure in capite of two sorts . lib. ramsey f. . d. §. . pap. . distinction of persons among the saxons . lands among the saxons . bocland . vid. gloss . in verb. foresta . folcland . inland . ing. sax. p. . outland . praef. ad libr. fend . p. . itinerar . cant. p. . earl no title of dignity anciently . asser . de gest . alfredi p. . ibid. no earldoms hereditary . earldoms in france . loyseau ●e seignier . c. . p. . lin . ●lt . ceorls . cap. . ceorls . p. . de mor. germ. p. . cap. . fol. . c. cap. de weregild ▪ ll. aethelst . ibid. earls capable of knight's-fees . thane , what . th● quality of thanes . hist . se●● . lib. . it●n . cant. p. . cap. de dignitate hominum f. . * sceorp , vestitus , apparatus somn. the three services upon lands conc. brit. sub an. . p. . al. . triremem . con. brit. p. ... p. . p. . p. . p. . 〈…〉 not subject to 〈…〉 p. . lib. . tit. . p. . eadwigus edgarus . ethelredus . ms. mon. de hyde sub tit . r. ethelredi . sic ed. conf. in chart . fact . orco minist . . 〈◊〉 ms de abb. ub . chart. . edward confess . edgar . lib. ms. ejusd . monast . sub tit. edgar chart. ult . thane has no direct relation to war. no mention of tenere , &c. what us'd instead of tenere . the occasion of granting thane-lands . thane-lands alienated . thane-lands devised by will. 〈…〉 g●●nted to women . 〈…〉 upon thane-lands but what was expressed . expedition , repairing of 〈…〉 ingul● . p. , . conc. brit. in an. . ex ingulf . malmesb. & al. thane-lands disposed of at the pleasure of the owner . thane-land charg'd with a rent . pag. . pag. . ma●●● . ● . . pag. . pag. , . pag. . pag. , . profits by wardship . chap. . the name wardship . mr. selden's judgement . p. . sect . par ▪ . cap. . p. . lambards opinion . p. , & . lib. intrat . tit. challing . fol. . magna charta . p. ▪ pag. . p. . fol. . wardship in scotland . pag. . p. . hector boethius . th● auth●ri●y of 〈…〉 . fol. . a. lib. . f. . b. the agreement of the english and scotch laws . marriage of wards . kings . . when marriages came in . 〈◊〉 marriage . art. . cap. . praerog . reg. cap. no reliefs among the saxons . pag. . & . medmena mediocris . releviamentum . heriots and reliefs . bracton fol . ● bracton fol. . a. num . . verb. feudal . fol. . n. . fines for licence of alienation . folcland . 〈◊〉 kent t●● . m●pham . feodal homage . coke instit . par . . sect. . fol. . ● . homage two-fold . neither bocland nor folcland subject to homage . tenures lib. . cap. . §. . norf. terra will. ep. & terra fid. fil . spirawi● . all oath● not fealty . germ. §. . no fealty but for a fee. 〈…〉 . 〈◊〉 in lib. . pag. . summons in the empire . gunter . de gest . freder ▪ i. lib. ▪ p . cannt . ll. ca. . cannt . ll. ca. . & . ibid. ca. . escheats . canutus's law examin'd . thane-lands . 〈…〉 p. . reveland . 〈…〉 . pag. . l. . coke's citation false sense of doomsday . tempore edwardi regis . the french custumary 〈…〉 . personal 〈◊〉 . praedial 〈◊〉 . alodial ●●●●ice . beneficiary services . colonical 〈◊〉 . the import of the charter . * or fee granted . lib. de fend . cap. . p. . prov. . nat. br . dr●it . case . d. bracton . black book of the exchequer . hydes disus'd . notes for div a -e can. apost . ca archi●pis . super epis● . greg. angu . bed. so a du●g . com. ll. edgar cap. . ll. h. i. cap. . * 〈…〉 cum . ll. edw. senior . ca. ult . notes for div a -e * h●r● is 〈…〉 it 〈…〉 that 〈◊〉 comes 〈◊〉 ●●●ms 〈…〉 from 〈…〉 . 〈◊〉 fran. ca. . p. . ll. edw. conf. cap. . de tene●d . comitatib . ll. hen. i. cap. . 〈…〉 c. . 〈◊〉 . lit. lib. . ca. . cujac . const . lot. feud . pa. . 〈◊〉 cujac . lib. . feud . tit. . pa. . cujac . ibid. epist . fulberti epist . canot . & can. . q. . doomsd . heref lene . plac. coron . r. de banco . bracton . * there is space 〈…〉 quotat●●n , in the ●rigina● ; but what p●ace in mat. paris he refers to , i know not . circ . an. . ll. inae praef. circ . . in praef. circ . . ll. praef. & ca. . . praef. foed . circ . . in praef. ll. & epil . cir. . ll. praef. circ . . in praef. circ . . in praef. circ . . in praef. ll. politic . eadm . will. ii. p. . lib. . pa. . lib. . pa. . in an. . w. nubrig . malmesb. rad. nig. sim. dun. rad. de dicet . mat. par. mat. west . ran. cestr . tho. walsingh . viz. 〈◊〉 redimendum personam regis , ad fil●um prim●genitum militem faciendum , & ad filiam primogenitum semel maritand●● . hottom . francog . ca. . co●e report . in epist . ad l. . cod. de legat. l. . fra●●ogal . ca. . p. . ad e●nd . l. notes for div a -e deinde constituit ( gulielmus conquestor ) ut quatuor quotanis , &c. lib. . p. . l. . &c. notes for div a -e lib. . cap. . & . lib. . tract . . cap. . nu . . notes for div a -e 〈…〉 . 〈…〉 . 〈…〉 had about six m●re or l●ss of them , so called because on them the prytanean magistrates might hold court. so called 〈…〉 where their business was to sit only on things inanimate , as when a piece of stone , timber or iron , &c. ●ell ●n a man , ●f the 〈◊〉 that ●●●ng it were not known , sentence was past on that thing which s●ew him ; and the masters of this court 〈…〉 see that thing cast out of the territories of athens . see the attick antiq. l. . ch. sect ; . . the m●nth february , 〈◊〉 as others would have it march , when sacrifices were most usually offer'd to the goddess diana , 〈…〉 cognomen diana , quod est , jaculis cervos figens . 〈…〉 . de bello gallico lib. . hist . c●●b p . * de rep. angl. lib. . lib. . capit. car. & lud. can. . l. solis . cod. theod. de exact . caus . quaest . . c. . lib. . cap. ● benedict . levita . bin. tom. . part . p. . concil . tom. . p. . can. . quaest . . al. septuagesima . lib. . c. . can. . q. . ca. . can. . q. . ca. . fif þeoƿ mon ƿyrce on sunnan daeg . be his hlafordes haese . sy he freo . if a servant work on sunday by his master's command , let him be made free , &c. legum cap. notes for div a -e of edw. the elder and guthrun . legum cap. . leg. alur . cap. . the synod of eanham . 't was held between the years . and . see the author's con. britan. tom. . pag. . the word synod here signifies more than council , not as 't is usaally restrained to that of the clergy 〈◊〉 . concil . eanham . can. . can. . can. . can. . notes for div a -e 〈◊〉 leg . cap. . * matth. . . mar. . . notes for div a -e leges edw. conf. cap. . sect. . notes for div a -e in hen. ii. pag. . lamb. exord . ll. gul●el . cod. ms. in descrip . norman . custum . cap. . lib. . c. . lib. c. . . lib. . c. . ll. edw. conf. c. . gloss . can. . q. . ca. non oportet in quadrages . lindo . c●an . 〈◊〉 ca. omnia . v. so●empn . decr. grat. de feriis , ca. capellanus . decr. grat. can. . q. . ca. non oportet ● septuag . b●l●th . de divin . o●●i● . ca. . notes for div a -e leg. hen. i. c. . an. dom. . hist . nov. lib. . pag. . in hen. ii. pag. . lib. . cap. . dial. scacc. ca. . notes for div a -e 〈…〉 hypodig . neust . an. . malm. p ll. gul. r. s●n. c. . de gest . freder . i. lib. . c. . cust ●●t . cap. 〈◊〉 . concil . tom. . mr. ai● . agard . notes for div a -e 〈◊〉 . 〈◊〉 viii . 〈◊〉 . c●d . de ●●ri●s , l . ca. . l. ●in . & ff . l. omnes dies . tit. de f●●iis , ca. . can. . quaest . . silvarum 〈…〉 . hist . l●ng●b . lib. . cap. . wisegoth . lib. . tit . . l. . sam. . . sam. . . swainmote or swanimote ( from the saxon sƿaegn , i. e. a country clown or free-holder , and mot or gemot conventus ) is a court of free-holders within the forest . see . hen. viii . ca. . lib. . cap. . notes for div a -e before the abbreviation by . car. i. cap. . dial. lib. . cap. . * but the a●signees to ta●e ●●gnizance of weights and mea●ures , by the statute of . ed. . c. . are notwithstanding 〈…〉 their estreats ●endemaine d● s. mich●l , 〈◊〉 morrow after 〈…〉 rastal , weights and measures . ca. . * here seems to be something wanting . notes for div a -e * this chapter is inserted in the ●●●tion of ● notes for div a -e chap. . v. . hist . lib. . cap. . tit. . cap. . lib. . can. . archaeol . verb. comes cap. . §. . & alia capit. caroli §. . de offic. dele . consuluit . 〈…〉 pat. . r. . part . m. . . edw. i. ca. . an. . & . edv. . cap. . tabien . v. feriae . § . tit. de feriis , ca. conquestus . lev. . , . exod. . . i●●m , lev. . . why they sit on rogation-days . tabien . feriae §. . why on some festivals , and not on others . * before the abbreviation , car. . the difference of festivals . durandi lib. . c. . n. . durandi lib. . ca. . rast . excom . . belethus explicat . ca. . 〈…〉 〈…〉 the feast of st. peter ●nd st. 〈◊〉 it seemeth that the s●atute of . and . of edw. vi. cap. . notwithstanding the reveal of it amongst a multitude of others by queen mary , anno . sessione . cap. . is revived again , tho' not by queen elizabeth , yet by . jacobi cap . in these words ; that an act made in the first year of the reign of queen mary , intituled , an act for the repeal of certain statutes made in the time of king edw. vi. shall stand repealed . see poulton too . st. george's day . virgil. georg. lib. . lib. ep. conc. medard . can. . q. . ca. . can. . q. . can. . lib. . tit. . ibid. l. div. trajanus . metam . lib. . h. . ca. . . h. . ca. . aimo . & . hoveden p. . fol. . b. in commiss . ejus . * see in the appendix , at the end of this discourse , the grants and licences of this kind made by the archbishops , and the bishop ●f norwich . see my codex ll. antiq. an. . b. leges ethelredi cap. . cap. . * so●●ius . . henr. iii. cap. . . henr. iii. lev. . v. . cod. de dilation . l. sive pars fol. . pag. . can. . q. . * germanor . . part of this paragraph seems to be cross'd out in the original ; but without it the connexion cannot be made good . * here is this note in the margin of the original : that the saxons , abjectio dominio britonum , jam 〈…〉 ca. c●eperunt . * in the original this paragraph seems to be cross'd out ; for what reason i know not . our author has left us another account , how far the britains and saxons made use of the roman laws ; which we find in the printed copy . it is also in the original ms. tho' cross'd out , and that which we have printed put in its place . but notwithstanding it appears that he design'd this , as his last thoughts , for the text ; yet the other is of more moment than to be omitted . it is thus , by this , we may conceive how the romans dealt with the britains touching their laws , and the story of st. alban and amphibalus somewhat sheweth it . but more plainly seneca speaking of claudius the emperour having conquer'd this island : — jussit & ipsum nova romanae jura securis tremere oceanum : in ocean isle new laws he set ; that from the roman axe were set . and more plainly yet herodianus ( in severo , p. . ) speaking of severus the emperour's going out of this island : he left ( saith he ) behind him , in the part of the island subject to the romans , his youngest son geta , to administer law and the civil affairs thereof ; and some of his ancient friends to be his counsellors ; taking his eldest son antoninus for his wars against the barbarians . in averment of all this , it appeareth by tacitus ( annal. lib. . p. . ) and dion cassius ( 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ) that the romans here had in every colony their curiam for justice , and their cruces and patibula for execution . in the colony of camalodunum , saith tacitus , was heard sremitus in curia and suetonius overcoming them , put them to patibula , ignes , cruces , ibid. so that all concurreth to the verifying of the old verse : cernitis ignotos latia sub lege britannos . but what laws soever the romans made in britain , the saxons doubtless swept them all away with the britains . there is this certain proof of it : antoninus made a constitution , that all nations under the roman empire should be call'd romans ; and when the northern people brake into th se lower parts of europe , and made their habitation there , the old inhabitants ( whom they expelled not but liv'd mingl'd with ) were still called romans ; as we see in the ancient laws of the saliques , burgundians , in cass odorus and others ; and their laws distinguish'd by the title of lex barbara and lex romana . but here in britain , after the saxons had conquer'd , we never heard nor find , any mention of lex romana , or of any roman inhabitant : which sheweth that both it and the laws of the britains were expell'd and driven away together ; or , that of the romans with the romans , and that of the britans with the britans . * the author's name is so obscurely writ , that i cannot ●●ad it . notes for div a -e * rogerus de skerwing . ●o . henr. iii. notes for div a -e 〈…〉 . ●app . . . . . . ad ca. lator. ad cap. johannes . lib. . tr. ● 〈◊〉 . l. . ca. ● . ●a . . e● burch . l. . ca. . l. . quaest . . ca. . notes for div a -e so carol. m. in decreto suo . furnonens . synod . can. . cabilonens . can. . cent. . col. . l. . 〈…〉 cleric●r●m 〈…〉 . to ride , shoot and hunt , be the three martial qualities , whereby the rutil in the ninth book of v●g●● , proveth his countrey-men to be good souldiers : v●na●● invigilant pu●ri , sylv●sque ●atigant . flectere lud●s eq●●s , & spicula vendere cern●● . vid. malm. p. . l. . balaeus cent. . ca. . in append. citat . magdeburgg . cent. . ca. . col . . pos●unt tamen clerici arma portare ●x causa justa , utputa si transeat per loca periculosa , ad terrorem latronum , licet non debent perc●tere . pupil . oc. par . . ca. . i. ubi libri citantur alii . v. malm. de gest . pontif. l. . pa. . l. . chron. pa. . col . a. notes for div a -e . june . kings . . cod. de testam . . . l. angl. tit . . de potestate testandi p. . sam. . . cust . ref●rm . d● norman . art. . art. . art. . * art. . gloss . ad art. . engolism . in vita carol. p. . testam . alfredi in angl. norm . p. . testam . praedict . lib. rams . §. . lamb. itin. cantiae . p. . instit . de test . ord . §. sed ut . ibid. §. sed cum . ibid. §. testes autem . constit . novell . lib. ix . tit . . formul lib. . cap. . ff . de tab. exhib . l. si quis . paul. sent. lib. iv . tit . . bign . p. . gloss . cod. de testam . l. . lib. . cap. . & . ff . fo . . cod. instit . de testam . lib. . f. . cod. theod. lib. . cap. viii . cod. de testam . lib. fol. . clericis ut d. l. . de episcopi & cleri repetita . wi●●goth . 〈◊〉 . 〈◊〉 v. ● . . wis●go●h . 〈◊〉 . 〈◊〉 v. l. . la coust . ref●r . art. . verb. notaire o● tab●ll●●n . 〈◊〉 ●ir●r . iti● . can● p ● . ibid. p. . ll. alur . c. . cod. de testam . 〈…〉 . 〈…〉 alu● . ● . ● . edg. ll. secul . canut . ll. secul . cap. . ms. longob . lib. . tit . . capitular . lib. iv. tit . . inter privil . eccl. lincoln . indulta & à ric. ii. per inspex . confirm . anno ejus do . ch. . m. . n. . lib. vii . cap. . reg. maj. lib. . cap. . §. . lib. vii . ●ap . . mag● . cart. hen ▪ i. ●ap . . notes for div a -e icenorum nomina . icenorum derivatio . pag. . a. & . b. i se fluvius unde dictus . iceniae termini bal. . walsing . ypod. in an. . p. . de cael● & solo. marslandia plin. l. . cap. . w●l●●k● . w●lt●n● . w●lpole . m. pa●is ▪ in anno t●●●ington s ma●ies . tylney . tylney-smeeth . wigenhall . wisebeach . sect. . sect. . beaupreovum tydd isis 〈◊〉 . sect. . clacklose cent. met. l. . 〈…〉 〈…〉 ● . 〈…〉 〈…〉 chron. lindenbrog de r●gib da● 〈…〉 wa●●us i● woney perg . 〈…〉 〈…〉 bicham-ditch . newmarket-ditch swafham castle-acre . west-acre . nar. narford . gunther . l. . p. . 〈…〉 〈…〉 sh●●ldham . wormgey 〈◊〉 len quaere de hoc ( spelmanni nota . ) rex johannes filtus henrici ii. ut achilles à martiale aeacides dicitur , quia ab ae●●o oriundus . matt. lib. ● . epigr. . 〈…〉 . 〈◊〉 . congham . vid. eadmer . l. . & malmesb. lib. . de gest . pontif. rougham babbingley . flitcham 〈…〉 . will. conq. non ●mres s●d pleresque anglos e●haereda●it . lib. rams . sect. . ( nota spelmanni ▪ ) sedgeford stow p. . vide veget. l. . c. . & stewec . f. . o●id . ve●illa● . comita . cap. . burnham it. cam. l. . cap. . pag. . creake holkham . ebulum . the meales miles , seu mules . walsingham . 〈…〉 . 〈…〉 . 〈…〉 . wissingset . mil●h●m . elmham . gressenhall . walsing . ypod. p. . melton . heydon . sall. repham blickling . wichingham . mat. par. an. . baningham ▪ baningham . baconsthorp . gresham . ●●lbirg . cromer . gimmingham . bronholm . mat. par. an. . in henr ▪ iii. p. . fol. . col. c. paston . waxham . cowshil . frekenham . crostwick sprowston . randworth . ludham . s. benne● ▪ lib. eliens . pag. . acle . flegg . . 〈◊〉 stow p. . 〈…〉 〈…〉 haileston shelton tasburg . 〈…〉 〈…〉 cossey . bouthorpe . intwood . kettringham . windham . hengham kymb●●ly . a●●ilburgh 〈…〉 . bu●k●nham ▪ keninghal 〈◊〉 . lopham 〈…〉 . thetford breclys . ellingham . woodrising . carbrook watton . merton . northwold . methwold . hockwold . fel●well . notes for div a -e hunt. . l. ● . l. . ● . . henr. i steph henr. ii. quaere , nam 〈◊〉 in comitibus penbrochiae , ait de richardo praedicto : hujus 〈…〉 isabella 〈◊〉 dictum 〈◊〉 ( ●● quod ejus majores fuissent hereditaris marescalli palatii 〈◊〉 ) maritum codem [ comitata palatin● 〈…〉 quasi majores istius willielimi , non isabellae axoris suae fuissent 〈◊〉 [ nota spelmanni . ] henr. iii ●● hen. iii. ●● henr. iii. ●● henr. iii. ● h●nr iii ●● h●nr iii . vel . henr. iii. . edw. i. . edw. ii. . edw. ii. . edw. ii. 〈…〉 iii. 〈…〉 iii. 〈…〉 iii. 〈…〉 iii 〈…〉 iii 〈…〉 iii 〈…〉 ii ● ric. ii. . ric. ii ● . ric. ii. . ric. ii * sed in libro feodario , sacto . ed. iii. tit. hund. de frebriggs , sic legitur : prior de massingham tenet m● massingham tam part●m feodi militis de comit● marescallo . — p. . [ spelman . ] . ric ii. . ric. ii. . henr. iv. . henr. iv. . henr. iv. . henr. v. . henr. vi. . edw. iv. . rich. iii. 〈◊〉 hen● . vii . 〈◊〉 ●i ▪ maria. * anglorum proto-comes . notes for div a -e thegan in vi●● l●● ▪ malmesb ▪ de reg. l. jo moyn . hist . norm . lib. . flodoard . remens . hist . lib. . ca. . de germ. mor. 〈◊〉 . ●a . . notes for div a -e nota 〈…〉 asceurus primus ●iliu● 〈◊〉 . secundus filius asceuri & eju●●●itus . tertius filius praedicti asceuri . primus ma●●tus etheldredae , & 〈◊〉 ●●itus . 〈…〉 . 〈…〉 . 〈…〉 . 〈…〉 〈…〉 〈…〉 prima filia galfredi & etheldredae , & ejus exitus . 〈…〉 〈…〉 〈…〉 〈…〉 〈…〉 〈…〉 quartus filius petri , & ceciliae . quintus filius petri , & ceciliae . filia petri & ceciliae . bastardi praedicti petri. prima filia andreae secundi . filius andreae secundi . secunda filia andreae secundi . tertia filia andreae secundi ▪ bastardus andrea● 〈◊〉 . * haec manu nupera inserta sum . * abhinc manu recentiore continuatur code● ms. notes for div a -e * it wants the beginning . kings ch . . ver . . chron. ch . . chron. fol. . ● . . chron. fol. . b. . notes for div a -e canterbury rochester . carlile . rochester . winchester . york . norwich norwich . durham . lichfeild . worcester . landaff . bath and wells . exeter . sarum . st. davids . hereford . london ely bangor . lincoln . chichester . s asaph isle of man an act for reviving an act impowering judges for probate of wills, and granting administrations public general acts. . england and wales. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason .f. [ ]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing e b thomason .f. [ ] estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) an act for reviving an act impowering judges for probate of wills, and granting administrations public general acts. . england and wales. sheet ([ ] p.) printed by john field, printer to the parliament. and are to be sold at the seven stars in fleetstreet, over against dunstans church, london : . dated at end: tuesday, july . . ordered by the parliament, that this act be forthwith printed and published. tho. st nicholas clerk of the parliament. continues an act passed on may , until october . steele notation: au- bate hundred. reproduction of original in the henry e. huntington library. eng law -- great britain -- history -- early works to . courts -- law and legislation -- england -- early works to . great britain -- politics and government -- - -- early works to . broadsides -- england a r (thomason .f. [ ]). civilwar no an act for reviving an act impowering judges for probate of wills, and granting administrations. england and wales a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion blazon or coat of arms an act for reviving an act impowering judges for probate of wills , and granting administrations . be it enacted by this present parliament , and the authority thereof , that one act made this parliament since the seventh of may one thousand six hundred fifty nine , entituled , an act impowering judges for probate of wills , and granting administrations , is hereby revived , and the powers and authorities given by the said act , shall continue until the tenth day of october one thousand six hundred fifty nine . tuesday , july . . ordered by the parliament , that this act be forthwith printed and published . tho. st nicholas clerk of the parliament . london , printed by john field , printer to the parliament . and are to be sold at the seven stars in fleetstreet , over against dunstans church , . the laws and acts made in the second session of the first parliament of our most high and dread soveraign james vii by the grace of god, king of scotland, england, france and ireland, defender of the faith holden at edinburgh the of apr. by a noble earl, alexander, earl of morray, lord doun and abernethie, &c., secretary of state for the kingdom of scotland, his majesties high commissioner for holding this parliament, by vertue of a commission under his majesties great seal of this kingdom : with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george, viscount of tarbat ... laws, etc. scotland. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the laws and acts made in the second session of the first parliament of our most high and dread soveraign james vii by the grace of god, king of scotland, england, france and ireland, defender of the faith holden at edinburgh the of apr. by a noble earl, alexander, earl of morray, lord doun and abernethie, &c., secretary of state for the kingdom of scotland, his majesties high commissioner for holding this parliament, by vertue of a commission under his majesties great seal of this kingdom : with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george, viscount of tarbat ... laws, etc. scotland. moray, alexander stewart, earl of, d. . cromarty, george mackenzie, earl of, - . p. printed by the heir of a. anderson ..., edinburgh : . reproduction of original 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tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- scotland. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion the laws and acts made in the second session of the first parliament of our most high and dread soveraign james vii . by the grace of god , king of scotland , england , france and ireland , defender of the faith. holden at edinburgh the . of april . by a noble earl , alexander earl of morray , lord doun and abernethie , &c. secretary of state for the kingdom of scotland , his majesties high commissioner for holding this parliament , by vertue of a commission under his majesties great seal of this kingdom . vvith the special advice and consent of the estates of parliament . collected and extracted from the registers and records of parliament , by george viscount of tarbat , lord mcleod , and castle-haven , &c. clerk to his majesties councils , registers , and rolls , &c. edinburgh printed by the heir of andrew anderson , printer to his most sacr●d majesty , anno dom. . cum privilegio . god save king james , the seventh . laws and acts made in the second session of the first parliament of our most high and dread soveraign james vii . by the grace of god , king of scotland , england , france and ireland , defender of the faith. holden at edinburgh the of april . i. act of dissolution of the lands of cesnock and duchal . may . . our soveraign lord , and estates of parliament , taking into their consideration , that his majesties commissioner , as having special warrand and instruction from his majesty , having proposed and expounded in plain parliament , the gr●●t and faithfull services done to his majesty , and his royal b●●ther , of ever blessed memory , by iohn lord viscount of melfor●● one of his principal secretaries of state , and his constant zeal 〈◊〉 faithfulness to the interest of the crown , and particularly , tha● his majesty was sensible of the many journeys made by the said ●ohn viscount of melfort , from scotland to the court of england , upon occasions of great importance , to the service of the crown and government , for most of which he had no allowance , at least none suitable to his expenses ; and that he had faithfully executed several offices of great trust , as lieutenant general and master of the ordnance , lieutenant governour of the castle of edinburgh , thesaurer deput , and secretary of state for his majesties ancient kingdom of scotland ; in which imployments he did very well behave himself ; that he was instrumental in the defeat of the rebels at bothwell-bridge , was diligent against the rebels thereafter ; and at great pains and charges in the circuits , for the shires of lanerk , stirling , renfrew and dumbarton , in the year . and that he had performed several other good and acceptable services . as also his majesties commissioner , as having speciall warrand and instruction from his majesty , having proposed to the estates of parliament , that his majesty judging it fit for the interest of his crown , and the good and wellfare of this kingdom , to purchase and acquire from the said iohn viscount of melfort , the lands , baronies and others aftermentioned , wherein the said viscount stands heretably infest , viz. the lands and barony of muirhall , comprehending therein the lands of inverneil , kilmo●r , dounanoltich , craigmoiral , kilbryd , kilmorich , auchinbreck , melfort , kenmore , knaps , kilmorie , kilberrie , auchinsalloch , imstremich , barleamich , dounarderie , eunichan , kildalban , dargachie , cariedale , drummoir , crear , oib , muirhall , and several other lands , teinds and rights mentioned in the charter thereof , granted by his majesty to the said iohn viscount of melfort , of the date the nineteenth day of march . which did formerly pertain to sir duncan campbel of auchinbreck , iohn campbel of melfort , iohn campbel of knap , dougal campbel of kilberrie patrick mccairter of imstremich , eivor mccivor of askins , donald mcaveish of dounarderrie , neill campbel of evneichan , campbel of kildalban , iohn campbell of dargathie , duncan campbell of cariedale , alexander mcmillan of douniemoir , donald mcneill of crear , alexander mcerverlich of oib , alexander campbel of oitter , william denholm of westsheill , mr. alexander campbell advocat , collin campbell elder of allangreig , and duncan campbell younger thereof , and stuart younger of cultness , and which fell in his majesties hands by the forefaulture of the forenamed persons ; and likewise the lands and barony of melfort , , comprehending the superiorities and the feu-duties of the lands of rayra , and the isle of loung , the lands of torsay , the lands and isle of shennay , the lands of daginneish , armadie , auchnasoul , ragray and of many other lands , particularly mentioned in the charter thereof , granted by his majesty , under his majesties great-seal , to the said iohn viscount of melfort , of the date the day of . which superiorities and feu-duties pertained formerly to archibald campbel , late earl of argile , and fell in his majesties hands by his forefaulture , excepting only the superiorities and feu-duties of glen ▪ ila , balquhan , spitletown of balquhan , edinample and menstrie , which are reserved to the said viscount of melfort , the saids lands and baronies being of a vast and great extent , and containing great superiorities , and as lying and being situat in the highlands , and formerly belonging to the late earl of argile , and others of his party , who were involved in the late rebellion , and forefault for their accession thereto , has always been subject to disorders , which might indanger the publick peace , which being in his majesties hands . and his royal authority and interest concurring , may restrain and prevent the same , and his majestie conceiving it just and reasonable , that the said iohn viscount of melfort , in lieu and place of the foresaids lands and baronies formerly belonging to him , and which at his majesties desire , he is willing to resign in his majesties hands , ad perpetuam remanentiam , should have a full recompence and satisfaction for the same . and his majesty designing to give and dispone in permutation and excambion thereof , the lands and barony of riccartoun ; the lands and barony of cesnock and galstoun , with the tower of cesnock and pertinents ; the lands and barony of barr ; the lands and barony of castlemains and cumnock ; the lands and barony of hainring ▪ ross , all lying within the sheriffdom of air , formerly pertaining to sir hugh and sir george campbels , sometime of cesnock : the lands and barony of duchall , and the lands of porterfield , with the pertinents which pertained to porterfield , sometime of duchall ; and all other lands , teinds and rights whatsomever , belonging to the said sir hugh and sir george campbels , and porterfield ; and upon their forefaulture did come in his majesties hands , and are annexed to the crown by the fourty two act of the first session of this current parliament , dated the sixteenth day of iune . and albeit his majesty be satisfied that the said transaction and excambion , is of advantage to his majesty and his crown , and for the good and wellfare of this real ● , upon the considerations foresaid ; and that the lands and others which the said viscount of ●elfort is willing to resign in his majesties hands , are of greater yearly rent and value ; y●● his majesty has thought fit , re integra , to propose the same in plain parliament , that they m●● seriously ponder , and consider the said particular services , done and performed by the said vi●●ount of melfort , to his majesty and his crown ; and the foresaid proposal , as to the transact●on and excambion above-mentioned , and give his majesty their advice , judgement and determination thereanent : and the estates of parliament after mature deliberation , treating and consulting anent the premisses , being fully satisfied and convinced , that either the said particular services , done and performed to his majesty by the said viscount of melfort , ( the truth whereof is sufficiently known , and did appear to them ) or the foresaid permutation and excambion , are just , sufficient and important reasons , concerning both his majesties interest , and the publick good and wellfare of this kingdom , that they should advise and consent to his majestes giving and disponing the saids lands , baronies and others above-exprest , to the said iohn viscount of melfort , his heirs and assigneys ; and for that effect , that the saids lands should be dissolved from the crown ▪ and from the said act of annexation . therefore , his majesty , with advice and consent of the estates of parliament , decerns , ordains and declares , that the saids lands and barony of riccartoun ; the lands and baronies of cesnock and galstoun , with the tower of cesnock and pertinents ; the lands and barony of bar , the lands and barony of castlemains and cumnock ▪ the lands and barony of haining-ross , all lying within the sherifdom of air , formerly pertaining to the said sir hugh and sir george campbels , sometime of cesnock ; and the lands and barony of duchal , and the lands of porterfield , with the pertinents , which pertained to porterfield , sometime of duchall ; and all other lands , teinds and rights whatsomever , belonging to the said sir hugh and sir george campbels , and porterfield , may be disponed to the said viscount and his forefaids ; and for that effect has dissolved , and hereby dissolves the same from the crown , and patrimony thereof ; and from the foresaid act of annexation , made the sixteenth day of iune one thousand six hundred eighty five ; and from all other acts of annexation , and from all clauses , qualities and conditions therein-contained : and his majesty , with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution , having proceeded upon the advice and deliberation of the estates of parliament , re integra ; and found by the saids estates , to be for great , weighty and reasonable causes , concerning the goop , wellfare and publick interest of the whole kingdom ; first proposed and advised , and maturely pondered and considered , before any previous grant , or other right or deed , given , made or done by his majesty , in favours of the said viscount of melfort and his foresaids , of the lands , and others particularly and generally above-mentioned , or any part or portion of the same , does fully satisfie the whole clauses , conditions and qualifications contained in the foresaid act of annexation , and shall have the force , strength and effect of a general law or act of parliament , and shall be as valid and effectual to the said viscount of melfort , and his foresaids , for the security of the lands , baronies and others above-exprest , as any other act of dissolution granted by his majesty , or his royal ancestors ; with advice and consent of the estates of parliament , in favours of whatsoever person at any time hereafter . likeas , his majesty with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution , shall not be understood to fall under , or be comprehended in any act salvo jure , to be past in this , or any other session of this current parliament ; but is hereby excepted therefrae in all time coming . ii. act for the better inbringing of his majesties supply . may . . our soveraign lord considering , that by a clause in the act of convention of estates , iuly . . it is provided , that persons lyable in payment of the supply then imposed , should not be holden to produce discharges , or receipts of the samen , after the tenth day of june . years . and seing there is a great part of the cess and supply yet resting unpayed , for which no diligence is done ; therefore , his majesty , with advice and consent of the estates of parliament , statuts , ordains and declares , that the particular collectors in each shire , for whom the commissioners are answerable , shall be lyable in all time coming , to do diligence by quartering , or denunciation against the deficients , at the head burgh of the respective shires where they live ; and declares the said diligence so to be used , shall be sufficient to stop and interrupt the prescription , and make the deficients lyable , notwithstanding of the clause in the foresaid act , finding them not lyable to produce their discharges after the said day : and because the time prescribed by the said act , is now near elapsed . therefore , his majestie with advice and consent foresaid , does prorogat the same untill the first day of november next ; to the effect , the particular collectors may do diligence in the mean time . likeas , his majesty and the estates of parliament , statutes and ordains in time coming , that all cess which shall not be payed w●thin six moneths after the same falls due , shall bear annualrent after elapsing of the said six mone●hs , albeit horning or other diligence be not used for the same . and whereas by the act . par. . ch. . the number of foot to be imployed in parties for quartering upon the deficients , is declared to be six foot for every . pounds of deficiency , and so proportionally ; which number is not sufficient , nor proportionable to the number of horses or dragoons appointed by the same act. it is therefore hereby ordained and declared , that the number of foot hereafter to be imployed , shall be fifteen for each pounds scots , and so proportionally ; and the number of horses and dragoons to continue as formerly . and likewise statutes and ordains , that if the parties appointed to quarter , shall not exact their quartering money every twenty days at least , that they shall not have power to exact the same thereafter , it being always competent to the parties , in case they get not voluntar payment , to poynd therefore ( within the said time ) any goods belonging to the persons on whom they are quartering , in the ordinary way appointed by law. and it is hereby enacted and declared , that deficient money shall only be due to parties , so long as they are actually quartering within the shire , and that the quartering money shall commence and be payed according to the foresaid act of convention of estates . iii. act ordaining interlocutors to be subscribed by the iudges . may . . our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that from and after the first of november next , all interlocutors pronounced by the lords of council and session , and all other judges within the kingdom , shall be signed by the president of the court , or the judge pronouncer thereof : and his majesty , with advice foresaid , prohibits and discharges the clerks upon their peril , to extract any acts or decreets , unless the interlocutors , which are the warrands thereof , be signed as said is : declaring hereby the extracts which shall be given out otherways , to be void and null . iv. act ordaining all executions to be subscribed by the witnesses , without necessity of stamping . may . . our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that in time coming , all citations before the lords of session , and citations before any other judges , civil or criminal , which formerly by law or custom used to be in writ , and all executions of letters of horning , inhibition and others whatsoever , be subscribed by the executer thereof , and the witnesses ; otherwise to be null and void . and that the same shall not be quarrellable for the want of stamping , any law or practick to the contrary notwithstanding . v. act anent the session . may . . our soveraign lord , with advice and consent of the estates of parliament , statute and ordain , that the ordinary dyets for sitting of the session , shall be thus regulated for the future , viz. the winter-session , shall sitt down the first of november , and rise the last of february : and the summer-session shall sitt down the first day of iune , and rise the last of iuly ; and that this present act shall take effect from the first of november . and that notwithstanding of the seventh act of the third parliament of king charles the second , of ever glorious memory , which is hereby rescinded . vi. act for the christmas vacans may . . our soveraign lord , with advice and consent of his majesties three estates assembled in parliament , statutes , ordains and declares , that the christmas vacation of the session or colledge of justice , shall yearly , and in all time-coming , continue and endure from the twentieth of december , to the tenth day of ianuary inclusivè ; any former law , act or custom to the contrary notwithstanding . vii . act of dissolution of the lands and barony of torwoodlie , in favours of lieutenant-general drummond . may . . our soveraign lord , and estates of parliament , taking into their serious consideration , that his majesties commissioner , as having special warrand and instruction from his majesty , having proposed and expounded in plain parliament , the great and faithful services done and performed to his majesties royal father king charles the first , and his royal brother king charles the second ( of ever blessed memories ) and to his majesties self , since his accession to the crown , by lieutenant-general drummond , commander of all his majesties forces within the kingdom of scotland ; and considering the particular services done by him , in his ready and chearful joyning with the forces , levied in the year . for rescuing the sacred person of his majesties royal father , out of the hands of his rebellious english subjects , by whom he was then kept prisoner ; and with the forces levied in ireland , for the service of the crown , in the year . under the command of the duke of ormond , then lord lieutenant of ireland ; and his brave and chearful concurring with the royal armies , both in scotland and england , in the year . which was the occasion of his suffering great loss , and a grievous long imprisonment ; and his resolute and couragious appearing in arms against the usurpers in the year . being cloathed with a commission of major-general : and considering also , that after the hopes of the loyal party were absolutely cut off , by the prevalency of the usurpation , the said lieutenant general drummond having indured the greatest hardships and miseries , under the influence of tyrannical powers , made a generous choice , rather to undergo exile and banishment from his own native countrey , than submit upon any terms to , or comply with an unlawful and usurped authority , and that upon a call from his majesties royal brother , after his restauration , he left a splendid and honourable imployment under the emperour of russia , to give obedience to his native prince , and that since his return to this kingdom , he did good and signal service , as major-general in the defeat of the rebels , and suppressing the rebellion , raised in the year . and in his painful and faithful performance of the office of master-general of the ordnance , for divers years ; and in his good and successful conduct of his majesties forces , as lieutennant-general against the late rebells and conspirators , who under the command of the late earl of argile , designed to overturn the government of this nation ; and upon many other occasions , hath given pregnant proofs of a firm and steady loyalty : and all the saids great and memorable services and sufferings , being proposed and laid open in plain parliament , to the end , the three estates might give his majesty their judgement , advice and determination , re integra , whether the same were true , good and reasonable causes of publict government , for dissolving the lands and barony of torwoodlie , formerly pertaining to pringle sometime of torwoodlie , with all other lands , heretages and rights , which belonged to him ; from the crown , and which came in his majesties hands , through the crimes of treason , and laese majestie , acted , committed and done by the said pringle , and the doom and sentence of forefaulture , given and pronounced against him for the same , upon the day of one thousand six hundred eighty five years , and were annexed to the crown by the fourty two act of the first session of this current parliament ; and the said estates of parliament , after long and mature deliberation , and treating and consulting anent the premisses , being fully satisfied and convinced , that the particular services and sufferings above-mentioned , done , performed and undergone by the said lieutenant-general drummond ; the truth whereof is clearly known and did appear to them , are just , weighty and important reasons , concerning both his majesties interest , and the publict good and welfare of this kingdom , that they should advise and consent to his majesties giving and disponing the saids lands and barony of torwoodlie , and others above-exprest , to the said lieutenant-general drummond , his heirs and assigneys ; and for that effect , that the saids lands should be dissolved from the crown , and from the said act of annexation : therefore , his majesty , with advice and consent of the estates of parliament , decerns , ordains and declairs , that the saids lands and barony of torwoodlie , and all other lands , heretages and rights , sometime belonging to the said pringle late of torwoodlie , and which came in his majesties hands , and were annexed to the crown in manner foresaid , may be be disponed to the said lieutenant-general drummond , and his foresaids ; and for that effect , has dissolved , and hereby dissolves the same from the crown , and patrimony thereof ; and from the foresaid act of annexation , made the sixteenth day of iune one thousand six hundred eighty and five years , and from all other acts of annexation , and from all clauses , qualities and conditions therein contained ; and his majesty , with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution having proceeded upon the advice and deliberation of the estates of parliament , re integra ; and found by the saids estates to be for great , weighty and reasonable causes , concerning the good , wellfare and publict interest of the whole kingdom , first proposed and advised , and maturely pondered and considered in plain parliament , before any previous grant , or other right or deed , given , made or done by his majesty , in favours of the said lieutenant-general drummond and his foresaids , of the lands and others above-mentioned , or any part or portion of the same , does fully satisfie the whole clauses , conditions and qualifications contained in the foresaid act of annexation , and shall have the force , strength , and effect of a general law , or act of parliament , and shall be as valid and effectual to the said lieutenant-general drummond , and his foresaids , for their security of the lands and barony of torwoodlie , and others above exprest , as any other act of dissolution , granted by his majesty , or his royal ancestors , with advice and consent of the estates of parliament , in favours of whatsoever person at any time heretofore , and that notwithstanding of any former gift or grant , given by his majesties royal brother , to the said lieutenant-general drummond , which shall no ways weaken or infringe this present act of dissolution , or his majesties grant of the lands and others above-exprest , to follow thereupon . likeas , his majesty with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution shall not be understood to fall under , or be comprehended in any act , salvo iure , to be past in this , or any other session of this current parliament , but is hereby excepted therefra in all time coming . viii . additional act anent high-ways and bridges . may . . our soveraign lord , with advice and consent of the estates of parliament , ratifies and approves the sixteenth act of the first session of the second parliament of king charles the second , of blessed memory , entituled , act for repairing high-ways and bridges : and the ninth act of the second session of the same parliament , and ordains the same to be duly observed in time coming : and for the more effectual prosecution of these acts , his majesty , with advice foresaid , doth authorize and require the commissioners for his majesties supply in the several shires , to meet with the justices of peace , and act in the same manner as they are warranted to do by the foresaid acts , with power to them at their first meeting to choose their own clerk ; and declares , that any five of the whole number shall be a quorum , excepting the shires of clakmannan , kinross and cromartie , wherein three to be a quorum ; and ordains the first dyet of their meeting for this year , to be the last tuesday of iune next ; and that the sheriff of the shire , or his depute , cause intimate that dyet , and the first dyet of meeting yearly thereafter , at each paroch kirk , upon the sunday before , under the pain of five hundred merks scots . and in case any of the justices of peace , or commissioners of supply , residing within the shire , shall be absent the said last tuesday of iune next , or the first dyet of meeting yearly thereafter , they shall be fined by the quorum mett , in twenty merks scots , for ilk dyets absence ; and in case a quorum of them shall not meet , the sheriff or his depute is hereby impowered to fine each of the absents in twenty merks scots ; which fines shall be applyed for reparation of the high-ways and bridges : and whereas by the foresaid act in the year . the time for the inhabitants to work at the reparation of the high-ways , is appointed not to exceed six days yearly the first three years , and four days yearly thereafter : his majesty in regard of the present condition of the high-ways and bridges , doth , with advice foresaid , ordain that these working days shall be six yearly , for the space of five years , from and after the last tuesday of iune next ; and seing it falls out sometimes , that bridges and ferries are upon the confines of two shires , and it being just that both shires in that case should be burthened with the expence of reparation ; his majesty with advice foresaid , doth ordain the justices of peace , and commissioners of supply in both shires to meet and adjust the expence of the said reparation proportionally according to the respective valuations of these shires ; and that the sheriffs of these shires or their deputs conveen them ; and in case they do not meet , grants warrant to direct general letters for charging them to that effect . and his majesty with advice foresaid , declares , that the several shires and burghs , shall be holden to repair the present standing bridges within their respective bounds , and being repaired to uphold the same , and if they suffer them to fall , his majesties privy council is hereby impowered to fine them in as much as will repair or rebuild these bridges . and it is hereby ordained , that where customs are collected at bridges , or causeys , the same shall be imployed in the first place for repairing these bridges and causeys . ix . act of annexation of the baronies of muir-hall and melfort to the crown . june . . our soveraign lord , and the estates of parliament considering , that by the first act of the present session of this current parliament , the lands and barony of riccartoun , the lands and barony of cesnock and galstoun , with the tower of cesnock and pertinents ; the lands and barony of bar ; the lands and barony of castlemains ; the lands and barony of haining-ross , and the lands and baronie of duchal and porterfield , with all other lands , teinds and rights whatsomever , which formerly belonged to sir hugh and sir george campbels , sometime of cesnock and porterfield , sometime of duchall , were dissolved from the crown and patrimony thereof , to the end the same might be conveyed , and disponed in favours of iohn lord viscount of melfort , one of his majesties principal secretaries of state , his heirs and successors , as a just recompence and reward of the good and faithful services , done and performed by him to the crown and kingdom , particularly exprest in the said act , and in lieu and place of the lands and baronies after-mentioned , wherein the said viscount of melfort stood infest under the great seal , and which were found expedient and necessar by the estates of parliament , to be purchast and acquired from him by his majesty , for the causes likewise mentioned in the said act , viz. the lands and barony of muirhall , comprehending therein the lands of inverneil , kilmoir , dounanoltich , craigmoirall , kilbryd , kilmorich , auchinbreck , melfort , kenmore , knaps , kilmorie , kilberrie , auchinsolloch , imstremich , barleamich , dannarderie , eunichan , kildalban , dargachie , cariedale , drumoir , crear , oib , muirhall , and several other lands , teinds and rights , mentioned in the charter thereof , granted by his majesty to the said iohn viscount of melfort , of the date the ninteenth day of march one thousand six hundred eighty six years , which did formerly pertain to sir duncan campbel of auchinbreck , iohn campbel of melfort , iohn campbel of knap , dougall campbel of kilberrie , patrick mccairter of instremich , eiver mceiver of askins , donald mcaveish of dounarderrie , neil campbel of evaichan , campbel of kildalban , ohn campbel of dargathie , duncan campbel of cariedale , alexander mcmillan of dounie moir , donald mcneil of crear , alexander m●erterlich of oib , alexander campbel of otter , william denholm of westshiell , mr. alexander campbel advocat , colin campbel elder of allangreig , and duncan campbel younger thereof , and stuart younger of cultness , and which fell in his majesties hands , by the forefaulture of the forenamed persons : and likewise the lands and barony of melfort , comprehending the superiorities and feu-duties of the land of rayra , and the isle of loung ; the lands of torsay , the lands and isle of shennay , the lands of lagianeish , armadie , auchnasoul , ragray , and of many other lands , particularly mentioned in the charter thereof , granted by his majesty , under his majesties great seal , to the said john viscount of melfort , of the date , the day of one thousand six hundred eighty five years ; which superiorities and feu-duties pertained formerly to archibald campbel late earl of argile , and fell in his majesties hands by his forefaulture , excepting only the superiorities and feu-duties of glen-ila , balquhan , spittletoun , ednample and menstrie , which are reserved to the said viscount of melfort : and also considering , that in pursuance of the design and intent of the said act of dissolution , and in prosecution thereof , the kings most excellent majesty , and the said john viscount of melfort , have entered into , and perfected a contract of the date the . and days of may ; one thousand six hundred eighty six years , whereby his majesty hath disponed to the viscount of melfort and his heirs therein mentioned , the lands and baronies of riccartoun , cesnock and others above-exprest : and on the other part , the said viscount of melfort hath disponed in favours of our soveraign lord the kings majesty , and resigned in his majesties hands , ad remanentiam , the lands and baronies of muirhall and melfort , comprehending the whole lands , superiorities and feu-duties above-specified , excepting and reserving to the said viscount of melfort , as is before excepted and reserved ; and his majesty now intending , that the lands , baronies , and others disponed and resigned by the viscount of melfort , in favours of his majesty , should be annexed to the crown , and incorporat with the patrimony thereof : therefore his majesty , with advice and consent of the estates of parliament , has annexed , united and incorporat , and hereby units , annexes and incorporats to the crown of this his ancient kingdom , to remain inseparable therewith in all time coming , the lands and barony of muirhall , comprehending the whole lands and others above-mentioned , viz. the lands of inverneil , killmore , dounanoltich , craigmuirhall , kilbryd , kilmorich , auchinbreck , melfort , kenmore , knap , kilmore , kilberrie , auchinsalloch , instremich , barleamich , dounarderie , eunichan , kildalban , dargachie , cariedale , drumoir , crear , oib , muirhall , and remanent lends , teinds , and rights mentioned in the foresaid charter thereof , granted by his majesty to the said iohn viscount of melfort ; and likewise , the foresaids lands and barony of melfort , comprehending the superiorities and the feu-duties of the lands of rayra , and the isle of loung , the lands of torsay , the lands and isle of shenney , the lands of dagneish , ardmadie , auchnasoul , ragray ; and whole remanent lands , particularly mentioned in the charter thereof , granted by his majesty , under his majesties great seal , to the said iohn viscount of melfort , excepting only the foresaid superiorities , and feu-duties of glen-isla , balquhan , spittletoun of balquhan , ednample and menstrie , which are reserved to the said viscount of melfort ; and it is hereby statute and declared , that the saids lands , baronies and others above-mentioned , with the teinds thereof , excepting as is before excepted , shall remain with his majesties crown in all time coming , and that the same , or any part thereof , shall not , nor may not be given away in fee and heretage , nor in frank-tenement , liferent-pension or tack , except for the full duty , which may be gotten from , and payed by the tennents , or by any other manner of alienation , right or disposition whatsomever to any person or persons of whatsomever estate , degree or quality they be , without advice , decreet and deliberation of the whole parliament , and for great , weighty and reasonable causes , concerning the good , wellfare and publick interest of the whole kingdom ; first to be proposed , and to be advised and maturely pondered and considered by the estates , re integra , before any previous grant , right , or deed be given , made or done by his majesty , or his successors , concerning the disposition of the saids baronies , and others foresaids , or any part thereof , which may any ways predetermin them or the estates of parliament , and prejudge the freedom of their deliberation and consent ; and if at any time hereafter it shall be thought fit to dispon , or grant any right of any part of the saids lands , superiorities , offices , teinds and others . it is declared that the general narrative of good services , weighty causes and considerations shall not be sufficient ; but the particular causes and considerations , whereupon his majesty , and his successors may be induced to grant , and the estates to consent to such rights , are to be exprest , that it may appear , that the same is not granted thorow importunity , or upon privat suggestions or pretences : but for true , just , and reasonable causes , and considerations of publick concernment . and farther , it is declared , that if any general act of dissolution of his majesties property , shall be made at any time hereafter , the lands , baronies and others above-mentioned , now annexed , shall not be understood to fall , or be comprehended under the same ; and if the lands and others foresaids , hereby annexed , or any part thereof , shall be annalzied or disponed , or any right of the same shall be granted , otherways than is appointed and ordained in manner above-mentioned ; his majesty , with consent foresaid , doth statute and declare ; that all dispositions , infeftments and other rights of the saids lands , and others now annexed , or any part thereof , which shall be granted contrary to this present act , with all acts of dissolution and ratification , and other acts of parliament concerning the same , shall be from the beginning , and in all time thereafter , void , null , and of no effect ; and notwithstanding thereof , it shall be lawful to our soveraign lord and his successors for the time , to take back , and receive at their pleasure , for their own use , without any process of law , the lands and others above-rehearsed , hereby annexed , or any part thereof , which shall be annallzied or disponed , and these in whose favours any such rights or alienations shall be made , shall be accomptable for , and lyable to refound and pay all profits , intromissions , or benefits taken , uplifted or imployed by them , in the mean time ; and it is declared , that all other clauses , articles and provisions contained in any former act or acts of annexation , to the advantage of his majesty , and his crown , are , and shall be holden as repeated and insert herein . likeas his majesty , with advice and consent of the estates of parliament , doth ratifie and confirm the foresaid contract , past between his majesty and the said viscount of melfort , in the whole heads , clauses , articles , and provisions of the same , with the resignation made by vertue of the procutry therein contained by the viscount of melfort ▪ in his majesties hands , of the foresaids lands , baronies , and others hereby annexed to the crown , together with the signature granted by his majesty to the said viscount of melfort , and his heirs of the foresaids lands , baronies and others dissolved from the crown , dated the day of one thousand six hundred eighty six years ; and the charter under the great seal , precepts and instruments of seasin to follow thereupon ; and decerns and declares this present ratification to be as valid , effectual and sufficient to all intents and purposes , as if the foresaid contract , signature and other writs or rights confirmed , were all verbatim herein ingrossed ; and his majesty and estates of parliament dispenses with , and supplies the generality of these presents for now and ever . x. act ordaining pursuers to furnish the act to the defenders , whereon they are to depone . june . . our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that in actions before the lords of session , and all other judges within the kingdom , where by the act of litiscontestation , the defenders oath is only required , and nothing to be proven upon his part ; that the pursuer shall be obliged to furnish the defender with the act , whereon he is to depone , within fourty eight hours after the pursuer or his procurator shall be required ; otherways that the defender shall not be holden to depone , but the ordinary shall dismiss him , the foresaid requisition being always made , after elapsing of the term assigned by the act , and before the term be circumduced at the the pursuers instance ; and where the defenders in exhibitions do depone negative , and the defenders in processes for making arrested goods forthcoming , depone either affirmative or negative , that the clerks and macers dues shall be payed by the pursuer , and not by the defender ; with certification , if the pursuer do not make payment thereof , the defender shall not be holden to depone , but may be dismissed by the ordinary . xi . act for winter-herding . june . . our soveraign lord , considering the prejudice and damnage , which the liedges do sustain in their planting and inclosures , through the not herding of nolt , sheep and other bestial in the winter time , whereby the young trees and hedges are eaten and destroyed ; doth , with advice and consent of his estates of parliament , statute and ordain , that all heretors , liferenters , tennents , cottars and other possessors of lands or houses , shall cause herd their horses , nolt , sheep , swine and goats the whole year , aswell in winter as summer , and in the night time shall cause keep the same in houses , folds or inclosures , so as they may not eat or destroy their neighbours ground , woods , hedges or planting , certifying such as shall contraveen , they shall be lyable to pay half a merk toties quoties , for ilk beast they shall have going on their neighbours ground , by and attour the damnage done to the grass or planting ; and declares , that it shall be lawful to the heretor , or possessor of the ground , to detain the saids beasts , untill he be payed of the said half merk for ilk beast found upon his ground , and of his expenses in keeping the same ; and this but prejudice of any former acts of parliament , made against destroyers of planting and inclosures . xii . act for cleansing the streets of edinburgh . june . . our soveraign lord , considering the many complaints of the nastiness of the streets , vinds , closses and other places of the city of edinburgh , which is the capitall city of the nation , where the chief judicatories reside , and to which his majesties liedges must necessarly resort and attend ; as also , the great trouble that does arise to his majesties liedges , and the inhabitants , by the great numbers of clamorous beggars ; repairing in and about the said city of edinburgh , therefore , his majesty with advice and consent of the estates of parliament , decerns and ordains the present magistrats of edinburgh , and their successors , to lay down effectual ways for preserving the said town of edinburgh , cannongate and subburbs thereof , from the nastiness of the streets , vinds , closses , and other places of the said burgh , and for freeing and purging the same of these numerous beggars which repair in , and about the said burgh , and that under the pain of . merks yearly , to be payed by the magistrats , who shall be in office , to the lords of session , to be applyed by them for the end and use foresaid ; declaring , that the magistrats who are in office , and who shall be found negligent of their duty , shall have no relief of their said fine , out of the common good of the said burgh , or by stenting the inhabitants : as also , his majesty , with advice and consent foresaid , for the further incouragement of the magistrats of edinburgh , present and to come , in the said matter ; does statute and ordain , that the lords of council and session , shall receive from the magistrats of the said city , or others ; all proposals which the saids lords shall judge rational to the effect above-mentioned ; and for that effect , authorizes and impowers the lords of session , with advice and consent of the magistrats , to impose such taxes upon all the inhabitants , burgesses and others , within the said town , cannongate and suburbs thereof , as they shall find just and necessar , for purging and cleansing the said town of the foresaid nastiness , and that all execution by horning or summar poynding , proceed against the inhabitants for payment of their proportions : and recommends to the lords of session , to meet with the magistrats , and to proceed in the said matter . as well in time of vacans , as in the time of session ; and ordains the present magistrats and their successors , to put all such acts and ordinances as shall be agreed upon , and settled by the lords of session , for the effect above-mentioned , to vigorous execution , under the pain and certification above-mentioned , to be incurred by the magistrats yearly , in case the said city of edinburgh be not effectually cleansed , and purged of the foresaid nastiness and beggars , without any relief to the magistrats out of the common-good of the said burgh , or from the inhabitants . xiii . act of dissolution in favours of the duke of gordon . june . . our soveraign lord , and estates of parliament , taking to their consideration , the many signal services done and performed to his majesty and his royal ancestors by the family of huntly , for many ages , with the eminent sufferings of several of the representatives of that family , for their constant adherence to the true interests of the crown , and the great services and sufferings of george marquess of huntly , grand-father to george now duke of gordon , who for his loyalty to his majesties royal father , of blessed memory , was by the then rebels condemned , and thereafter cruelly murdered on a scaffold : and also , taking into their consideration the constant loyalty , great services and merits of the said george duke of gordon , who has fully answered and improven the high and honourable characters of loyalty and nobility , derived unto him by his predecessors , and his readiness by himself , his friends and followers , in subduing the late rebellion . as also , his majesty and estates of parliament , considering that mr. robert baillie , sometime of ierriswood , being upon the day of december found guilty by an assise of the crime of high treason , was forefaulted by his majesties justice-general , justice-clerk , and commissioners of justiciary . and by the act of the first session of his majesties current parliament , the lands and barony of mellarstanes , and all other lands , teinds and rights whatsomever , pertaining to the said mr. robert baillie , were unite , annexed , and incorporat to the crown of this his majesties ancient kingdom ; and the saids lands and barony of mellarstanes and fawns , with the pertinents lying within the lordship of gordon , huntly , parochin of and sheriffdom of berwick , did anciently belong to , and were holden of the said george duke of gordon , and his predecessors , and are specially contained and ingrost in their , and his infeftments , under the great seal of this kingdom : and his majesties commissioner , as having special warrand and instruction from his majesty , having proposed and expounded in plain parliament , that his majesty upon the considerations foresaid , and as a mark of his royal bounty and favour , resolved to bestow on the said duke of gordon , the lands which did anciently hold of his family in the merse , as well as such as yet hold of himself , all of which belonged to the said mr. robert baillie , late of ierriswood : and the estates of parliament , after mature deliberation , treating and consulting anent the premisses ( re integra ) being fully satisfied and convinced , that the foresaid services and sufferings , done and endured by the said george duke of gordon , his predecessors and himself , for his majesty and his royal ancestors ; the truth whereof is sufficiently known , and did appear to them , are just , sufficient and important reasons , concerning both his majesties interest , and the publick good and welfare of this kingdom , that they should advise and consent to his majesties giving and disponing the saids lands and barony of mellarstanes and fawns , with the pertinents above-exprest , to the said george duke of gordon , his heirs and assigneys : and for that effect that the saids lands should be dissolved from the crown , and from the said act of annexation . therefore his majesty , with advice and consent of the estates of parliament , decerns , ordains and declares , that the saids lands and barony of mellarstanes and fawns , with the pertinents formerly pertaining to the said mr. robert baillie sometime of ierriswood , may be disponed to the said george duke of gordon , and his foresaids ; and for that effect has dissolved , and hereby dissolves the same from the crown , and patrimony thereof , and from the foresaid act of annexation , and from all other acts of annexation , and from all clauses , qualities and conditions therein-contained : and his majesty , with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution , having proceeded upon the advice and deliberation of the estates of parliament ( re integra ) and found by the saids estates , to be for great , weighty and reasonable causes , concerning the good , welfare and publick interest of the whole kingdom , first proposed and advised , and maturely pondered and considered , before any previous grant , or other right or deed , given , made , or done by his majesty , in favours of the said george duke of gordon , and his foresaids , of the lands above-written , with the pertinents , or any part or portion of the same , doth fully satisfie the whole clauses , conditions and qualifications contained in the foresaid act of annexation , and shall have the force , strength and effect of a general law , or act of parliament , and shall be as valid , and effectual to the said george duke of gordon , and his foresaids , for their security of the saids lands and barony of mellarstanes and fawns above-exprest , with the pertinents , as any other act of dissolution granted by his majesty , or his royal ancestors , with advice and consent of the estates of parliament , in favours of whatsomever person , at any time heretofore . likeas , his majesty with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution shall not be understood to fall under , or be comprehended in any act salvo iure , to be past in this or any other session of this current parliament , but is hereby excepted therefrom in time coming . xiv . act against importing irish-victual or cattel . june . . our soveraign lord , with advice and consent of the estates of parliament , does ratifie and approve the act sess. par. . ch. . against the importing of irish-victual , with this alteration , viz. that all the victual that shall be imported , shall be sunk and destroyed , and the seizer or discoverer , in place of the third part of the victual allowed him by the foresaid act , for his reward , shall have the boat , bark , or vessel wherein the said victual shall be imported , to dispose of at his pleasure , together with the half of the fines , by the foresaid act imposed upon the importers , recepters and heretors , and the other half of the saids fines to belong to his majesty : as likewise his majesty , with advice and consent foresaid , enacts and ordains , that no horse , mare , or cattel whatsomever , shall be imported from ireland to this kingdom , under the pain and penalty of forefaulture , of the horse , mares , or cattel that shall be imported , and further of paying the sum of an hundred merks scots for each beast that shall be so imported , the one half of both the beasts and fines to belong to the seizer and discoverer , and the other half to his majesty : as likewise , that no person within this kingdom , resett or buy any horse , mares or nolt , that they know to be imported out of ireland , under the pain of an hundred merks scots for each beast , besides the forefaulture of the beasts themselves , the one half to belong to the discoverer , ( he always pursuing and instructing the same importation within six moneths after ) and the other half to his majesty ; and recommends to the lords of council , to nominat and appoint such persons as they shall think fit for seeing this act put in execution . xv. act declaring that inhibitions shall not be prejudged by recognition . june . . our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that in time coming , no inhibition duly execute , shall be prejudged or disappointed by the debitors , doing deeds after the inhibition inserting recognition ; but that the lands falling under recognition , shall be burdened with the prior inhibition and ground thereof . xvi . act for burying in scots linen . june . . our soveraign lord , for the encouragement of the linen-manufactures in this kingdom , and prevention of the exportation of the moneys thereof , by importing of linen , doth , with advice and consent of his estates of parliament , statute and ordain , that hereafter no corps of any persons whatsoever , shall be buried in any shirt , sheet , or any thing else , except in plain linen , or cloth of hards , made and spun within the kingdom , without lace or point ; discharging from henceforth the making use of holland , or other linen-cloth made in other kingdoms , all silk , hair , or woolen , gold or silver , or any other stuff whatsoever , than what is made of flax or hards , spun and wrought within the kingdom , as said is , and that under the pain and penalty of pounds scots , toties quoties , for a noble-man , and pound for each other person , whereof the one half to the discoverer , and the other half to the poor of the parish , where the saids corps shall be so interred : and for the better discovering of the contraveeners , it is hereby further statute and ordained , that every minister within the kingdom , shall keep a book , containing an exact account and register of all persons , buried within their said parish ; as also , that some one or more of the relations of the person deceated , or other credible person ( tennants in the countrey and cottars being always excepted ) shall within eight days after such interment , bring a certificat upon oath in writing , witnessed by two famous persons to the minister , declaring , that the said person was woond or wrapt in manner herein-prescribed ; which certificats are to be recorded by the minister or reader of the parish gratis , without exacting any money therefore . and if no relation of the party buried , or other person shall bring such a certificat , within the said time of eight days , that then and in that case , the goods and gear of the party deceast , shall be , and are hereby declared , to be lyable to the foresaid forefaulture , to be pursued at the instance of the minister of the said parish , before any judge competent ; and in case the parties prove litigious by advocating , or suspending the said sentence ; the saids judges are hereby authorized and impowered to modifie expenses as they shall find cause : and if such persons died in familia , the father and mother , or other relations , in whose family they die , are hereby declared lyable for the said fine : and it is hereby statute and ordained , that if the minister in whose parish any such corps shall be so interred , prove negligent in pursuing the contraveeners within six moneths after the said burial , he is hereby declared lyable for the said fine , the one half to the poor , and the other half to the discoverer , to be divided in manner foresaid . as also , his majesty , with advice foresaid , statutes and ordains , that no wooden coffin shall exceed an hundred merks scots , as the highest rate for persons of the greatest quality , and so proportionally for others of meaner quality , under the pain of two hundred merks scots for the contravention . xvii . act for writing seasins by way of book . june . . our soveraign lord , taking into his consideration , that seasins do extend to great length by reason of inserting and repeating of the whole provisions of the charter therein ; therefore his majesty , with advice and consent of his estates of parliament , for the more easie and commodious perusal thereof , statutes and ordains , that it shall be lawful for parties , if they think fit , to cause write and extend their seasins by way of book , the attestation of the nottar condescending upon the number of the leafes in the book , and each leaf being signed by the nottar and witnesses , to the giving of the seasin ; and ratifies all seasins already written by way of book , by warrand of his majesties privy council . xviii . act appointing the publication of the testimonies of witnesses . june . . our soveraign lord considering how much it does import and concern the good and interest of his majesties liedges , and the due administration of justice , that witnesses be distinctly and fully examined , and their depositions written in plain and clear words , as they are given ; therefore , his majesty with advice and consent of the estates of parliament , statutes and ordains , that in all processes presently depending , or to be intented before the lords of privy council , lords of session , and all other judges within this kingdom , the witnesses who are made use of , and adduced therein , shall be examined in presence of the parties , or their advocats , they being present at the diets of examination ; and that there be publication of the testimonies of the witnesses in the clerks hands , allowed to the parties gratis , before advising , to the effect parties may have copies thereof , if they think fit , any law or act of parliament , custom or usage to the contrary , notwithstanding . xix . act anent the registration of seasins and reversions . june . . our soveraign lord considering , that where seasins and other writs and diligences appointed to be registrat , are duly presented to the keepers of registers , it is their duty to cause carefully book and registrat the same , for the security of the party , and intimation of the liedges ; therefore his majesty , with advice and consent of his estates of parliament , statutes and ordains , that where seasins and other writs are presented to the keepers of registers , and delivered back to the party , bearing , a record and attestation under their hand that the same are registrat ; it shall make the same sufficient and valid for the security of the party , albeit by the omission or negligence of the keeper of the register , or his deputs , they should not be found booked or insert in the register ; and to the effect that all deputs entrusted with the care and keeping of the registers , may faithfully do , and execute their office ▪ his majesty with advice and consent foresaid , statutes and ordains , that in case by their omission or negligence , any writs presented to them , and marked with their hands to be registrat , shall not be found booked and insert in the register , the saids deputs , guilty of such omission and negligence , shall be punishable as forgers of the publict registers and records , and shall be lyable in damnage and prejudice to any party who shall be prejudged by the said omission or negligence . and his majesty with advice foresaid , statutes , ordains and declares , that these presents shall no ways derogat from the th act of the parliament k. ia. the th . entituled , act anent the registration of reversions , seasins and other writs , which shall remain in its full force and strength in all points , as before the making of this present act. xx. act anent the nomination of the clork to the iustices of peace . june . . our soveraign lord , and estates of parliament , considering that by a clause in the th act of the last session of this current parliament , anent iustices of peace ; the saids justices are allowed to nominat their own clerks , which is a right and priviledge , belonging to the secretaries of state , the clerkships of the justices of peace being dependences of the secretaries office ; therefore , his majesty , with advice and consent of the estates of parliament , has repelled , cassed and annulled , and hereby repells , casses and annulls the foresaid clause in the sixteenth act of the last session of this current parliament , allowing the iustices of peace to nominate their own clerks , and declares the same to have no force , strength , nor effect from the beginning , and to be null and void in all time coming . xxi . act in favours of john adair , geographer , for surveying the kingdom of scotland , and navigating the coasts and isles thereof . june . . our soveraign lord , and estates of parliament , taking into their consideration , that exact geographical descriptions of the several shires within this kingdom , will be both honourable and useful to the inhabitants ; and the hydrographical description of the sea-coasts , isles , creiks , firths and lochs , about the kingdom , are not only honourable and useful , but most necessary for navigation , and may prevent several ship-wracks , the want of such exact maps , having occasioned great losses in time past : and likewise , thereby forraigners may be invited to trade with more security on our coasts ; and considering , that iohn adair hath given notable experiments of his great skill , diligence , and qualifications , for performing so good a work ; and having signified his willingness to perform the same , on allowance of competent expence ; therefore his majesty , with conent of the estates of parliament ▪ doth ordain and enact , that one shilling scots be exacted out of ilk tun , from all the ships , and other vessels above eight tunns , within this kingdom , ( excepting lighters , and fisher-boats ; ) and two shilling scots out of each forraign ship , yearly , for the space of five years next ensuing , commensing from whitsunday this year . and this for defraying the charge of hydrographical maps , for the use of the sea-men , which one shilling , and two shilling respectivè per tun , is hereby ordained to be collected by the several collectors of his majesties customs , who are to deliver the same to the general collector , or fermer of his majesties customs , yearly upon oath , at the term of martinmas , and the same to be payed in to any , the lords of his majesties privy council shall appoint to receive the same , to be given to the said iohn adair , as the saids lords shall appoint , at the said term , ilk year , during the space above-written ; and the saids collectors are also to deliver to the said iohn adair , subscribed lists of the saids ships , with their respective burdens , as the ground of their charge yearly : and the said iohn adair is to give account yearly at martinmas , of what progress he hath made , as to the hydrographical maps to his majesties privy council , or such as they shall commissionat for inspecting the same . as also , for defraying his expence , for drawing of the maps of the several shires , it is statute and ordained , that the sheriffs of each respective shire , baillies of regality , stewarts of stewartry , shall , at the desire of the said iohn adair , when he comes to their shire or bounds , for the end aforesaid , call the heretors in the said shire : and it is hereby recommended to them , to appoint a suitable encouragement for defraying the expence of surveying the said shire , to be collected by the collector of his majesties supply , immediatly after the said meeting . as likewise , that they appoint one or two knowing men , in each paroch , to go alongst with the said iohn adair , when he is actually surveying the same , to design unto him the particular places of each paroch , for the more exact performance of the said work ; and ordains the collector thereof to deliver what shall be collected to the said iohn adair , upon his presenting the draught of the map , to the respective sheriffs , or others foresaid . and likewise , the said iohn adair , giving account yearly to his majesties privy council of his diligence therein , and when the said geographical and hydrographical maps are perfected . the care of having the same printed in a good edition , is recommended to his majesties privy council . xxii . act and commission for plantation of kirks , and valuation of teinds . june . . forasmuch , as his majesties father , of ever blessed memory , out of his royal care and zeal for the reformed religion within this kingdom , and the maintainance and provision of the ministry and churches thereof , and the peace of the kingdom , and for preventing and settleing all differences , that did , or might arise betwixt titulars , and others having right to teinds , and heretors , concerning the leading and drawing of their teinds ; and immediatly after his attaining and succeeding to the crown , gave forth and emitted his royal declaration anent the premisses , and the other particulars therein-specified : and in pursuance of the ends foresaids , divers laws and acts of parliament were made in the year of our lord . his said majesty being then present in his royal person , and since divers acts of parliament , and commissions have been made , given and renewed to that purpose , and particularly by the act of the session of the parliament of king charles the second , his majesties umquhile royal brother , of ever blessed memory . and his majesty being resolved , and desirous to prosecute so good a work for the universal good of his subjects , and especially for the encouragement of the ministers of the gospel ; therefore , his majesty with advice and consent of his estates of parliament , gives full power and commission to his majesties officers of estate for the time being , and to or any thirteen of them to be a quorum , whereof three of every estate , with one of the officers of estate , to meet and conveen at edinburgh , the day of years , and such other place or places , times or dyets , as they shall appoint , to value and cause be valued , whatsomever teinds , great or small , parsonage or viccarage within this kingdom , which are yet unvalued ; declaring , that where the viccarage of any paroch is a several benefice , and title from the parsonage , the same shall be severally valued , to the effect the titulars or ministers serving the cure , having right to the said viccarage , be not frustrated of the true worth thereof ; with power to the saids commissioners , or quorum foresaid , to appoint committees , or sub-committees of their own number , and to grant sub-commissions , and to receive reports from them , and to approve or disapprove the same , as they shall find just ; and to rectifie whatsoever valuations , led , or to be led , to the enorm prejudice of the titulars , or the hurt and detriment of the church , and prejudice of the ministers maintainance and provisions . providing always , likeas it is hereby expresly provided and declared , that where valuations are lawfully led against all persons having interest , and allowed by former commissions , the same shall not be drawn in question , nor rectified upon pretence of enorm lesion , at the instance of the minister , ( not being titular ) or at the instance of his majesties advocat , in respect of his majesties annuity , except it can be proven that collusion was used , betwixt the titulars and heretors , or betwixt the procurator-fiscal and the heretors and titulars : which collusion is declared to be , when the valuations are led with the diminution of the third part of the just rent : which diminution shall be proven by the parties oath , and with power to the saids commissioners , or quorum foresaid ; where ministers are not already sufficiently provided , or have not localities already assigned to them for their stipends , out of the teinds within the paroches where they serve the cure , according to the quantities , proportions and rules contained in the act of the par. . to modifie , settle and appoint constant local stipends to each minister out of the teinds of the paroch where they serve the cure ; with power also to the saids commissioners , to grant recompence by prorogation of tacks to parties , for all augmentations of stipends which are granted since the year . or shall be granted , and that effeiring to the augmentations already granted , or to be granted , as the saids commissioners shall think fit . and sicklike , to disjoyn too large and spacious paroches , to cause erect and build new churches , to annex and dismember churches , as they shall think convenient ; and to take order that every heretor and liferenter shall have the leading and buying of their own teinds , if they be willing , according to the rules prescribed by the act , and commission granted by his majesty , with consent of his estates of parliament , in anno . and the acts of parliament therein-mentioned : with power to determine all questions concerning the prices of teinds , betwixt titulars and others having right thereto , and the heretors , and to appoint such securities in favours of titulars and others having right to teinds , for their prices , to be granted to the heretors , and others lyable in payment of valued duties , or buyers of the saids teinds , and in favours of the ministers , as to their maintainance , as the saids commissioners shall think fitting , according to the rules set down in the said act . and each heretor , whose teinds belongs to titulars of erection , to have power and liberty to buy the teinds of his own lands , whether valued or not , within the space of three years after the date of this act , with this declaration always , that in case the impediment , during the time foresaid , flow from the titular , by reason of his minority , or other inability ; in that case the heretor who offered to buy his own teinds , within the space foresaid , shall have place so soon as the impediment shall be removed , to buy his teinds , notwithstanding of the expyring of the years , and space after-exprest . and it is declared , that if the heretor be minor , and his tutor neglect the buying of his teinds within the foresaid space , the minor shall have action for two years after his minority , to compell the titular to sell his saids teinds ; and generally , with power to the saids commissioners to decide and determine in all other points , which may concern the drawing or leading of teinds , the selling or buying of the same , or payment of the rates thereof , contained in the former acts of parliament , or set down in the general determination , given out by his majesties royal father of blessed memory ; and if any person or persons shall find themselves grieved , and complain of the injustice , or exorbitancy of any decreet or sentence given in any of the commissions during the time of the late troubles , with power to the saids commissioners , to take the same to their consideration , and alter , anull , or allow the saids decreets and sentences as they shall find just ; and it is always provided and declared , that the arch-bishops and bishops , and other beneficed persons , being ministers , and their successors , shall not be prejudged of the rents whereof their predecessors were in actual and real possession ; and which by the laws of the kingdom were due to them in anno . or whereof they are presently in possession , and that they shall be no further bound , but according to the conditions and provisions exprest in the submissions made by the bishops to his majesties royal father of blessed memory , of the date , the day of . and registrat in the books of commission for surrenders and teinds , upon the day of iuly . and whereas it may fall out , that some of the commissioners may be unable to attend the service through death , sickness , or other known impediment . therefore , his majesty declares , that he shall be careful to fill their places with other persons qualified , whose oaths ( for faithfull discharging of the same ) shall be taken by the lord chancellor , or in his absence by the lord president of the commission for the time ; and ordains this present commission to endure ay and while the same be discharged by his majesty . and the acts , decreets and sentences thereof to have the force , strength and effect of a decreet or sentence of parliament ; and the lords of session to grant letters of horning , poynding and others necessar to be direct upon the said decreets and sentences , in manner contained in the foresaids commissions , and his majesty with consent foresaid , hereby discharges all former commissions , declaring the same to be expyred . xxiii . commission for regulation of iudicatures . iune . . our soveraign lord from his royal and princely care of the good and welfare of this his ancient kingdom , being desirous to prevent and redress all abuses and unwarrantable exactions within the same , especially in offices of publick trust , and in the dispensation of justice , to the effect the same may be speedily and impartially administrat with as little trouble and expence to his subjects , as the nature of such affairs and proceedings can admit of . and his majesty likewise considering , that his dearest brother , king charles the second of blessed memory , having by a commission under the great seal of this kingdom , of the date the of september . for the same end and design , impowered and authorized the persons therein-mentioned , to make such rules , orders and constitutions , as might prevent the same in time-coming ; and who in pursuance of the said commission , did agree upon cetain articles of regulation , relating to the session , justice-court and exchequer ▪ all which are ratified by the act of the session of the parl ▪ k. ch. the second : but the saids commissioners were not able through the shortness of time , fully to perfect and accomplish so great and necessary a work , as the good and interest of the kingdom requires . and his majesty being now fully resolved to prosecute so good a work for the universal good of his subjects , and to perfect the same , that his subjects may be convinced , and sensible of their great happiness and prosperity under his protection and government ; therefore his majesty , with advice and consent of his estates of parliament , gives full power , warrand and commission to whereof the number of to be a quorum , to meet and conveen at edinburgh , the day of years , and thereafter at such times and dyets as they shall appoint ; and with power to the saids commissioners to take full and exact tryal of all abuses , and other exorbitancies or exactions , which are practised in prejudice of his majesties liedges , in any offices of judicature , or others within this his ancient kingdom ; and to take tryal and information by all manner of probation thereanent , and how the saids abuses have creept in , and from what time , and to take notice and tryal of the authors and committers thereof ; and to transmit an exact and perfect accompt of the same to his majesty , that he may signifie his royal pleasure , and give what directions therein he thinks just . and for the effectual preventing and restraining the same in time coming . his majesty with advice and consent foresaid , does hereby authorize and impower the foresaids persons , or quorum thereof , to make such orders , acts , and constitutions for regulating the same in time coming , as they shall find just , under such penalties and certifications to be incurred by the contraveeners , as the saids commissioners shall find necessary in that behalf . all which acts , ordinances and constitutions made by the saids commissioners , and approven under his majesties royal hand . his majesty , with advice and consent foresaid , does ratifie , approve and confirm , and decerns and ordains the same to be put to execution , and to have full force , strength and effect against the contraveeners in all time coming . as likewise his majesty , with consent foresaid , does hereby authorize and impower the saids commissioners , to prescrive and set down clear and distinct rules for the inferiour judicatures in this kingdom , as to their competency , and the nature of their jurisdictions , that his majesties leidges may be at a certainty , and not be put to trouble and expence by being called and forced to compear and attend before different courts for the same cause , hereby inhibiting and discharging the saids judges , to proceed or determine in any other actions or causes , than what shall be found by the saids commissioners to be proper and competent for their jurisdictions ; declaring all such acts and decreets to be given and pronounced by them , in matters not competent to their jurisdictions . to be null and void , and the judges to be lyable to the damnage and prejudice of the party grieved , and to be punishable at the sight of the lords of privy council , for transgressing their jurisdiction . and to the effect , so just and necessary a work may meet with no obstruction from the negligence , or not attendance of the foresaids commissioners . his majesty , with advice and consent foresaid , statutes , ordains and declares , that the commissioners , who without a just and lawful excuse , ( to be allowed by such of the commissioners who shall meet ) shall not attend the dyets of meeting appointed , or to be appointed for carrying on of the said work , shall incur the pain of tolies quoties , to be disposed of by the commissioners , as they shall think just ; and for which , letters of horning and poynding are hereby granted : and it is hereby declared , that this commission shall continue and endure , during his majesties pleasure , and ay and while the same shall be recalled , or discharged by his majesty . xxiv . act anent an humble offer to his majesty for an imposition upon certain commodities , for defraying the expence of a free coynage , and other matters relating to the mint . iune . . our soveraign lord , and the estates of parliament , considering the great advantages that may accresce to this his ancient kingdom , by encouraging the importation of bullion to be coyned in his majesties mint , and that a free coynage is of all others the greatest encouragement for that end . and the estates of parliament taking into their consideration , that the charge and expences of a free coynage cannot be supported , without their giving unto his majesty a suitable found for the same ; therefore , they do out of a due sense of his majesties great care for the prosperity of this his ancient kingdom , humbly offer unto his majesty twelve shillings scots for each ounce of bullion imposed by the eight act of the first session of the second parliament of king charles the second , upon the several commodities therein-specified , viz. spainlsh , rhenish and brandy wines of all sorts , each tun fourteen pound and eight shilling scots money ; french wines of all sorts , every tun seven pound four shillings scots ; paper for printing and writing of all sorts , every six rims twelve shillings scots ; gray-paper every twelve rims twelve shillings scots ; dails every thousand , three pounds scots ; single-trees every thousand three pounds scots ; double-trees every thousand six pounds scots ; double double-trees , and all other great fir-timber , every thousand twelve pounds scots ; steel every hundred weight twelve shillings scots ; iron and iron-work , beaten of all sorts , every tun one pound four shillings scots ; onyons and apples , every two barrels twelve shillings scots ; mum-beer , every barrel , two pounds eight shillings scots ; prunes every tun two pound eight shillings scots ; raisins , currans and figs , every tun six pounds scots ; iron pots of all sorts , every duzon twelve shillings scots ; soap every barrel , one pound four shillings scots ; suggar-candy every hundred weight , six pound scots ; copper-kettles , brass-pans , and all other made work in brass or copper , yetlin or beaten , every hundred weight two pound eight shillings scots ; mader , every thousand weight three pounds scots ; harts of all sorts , every three dozen one pound four shillings scots ; window-glass of all sorts , every chest twelve shillings scots ; lemons and oranges , every thousand twelve shhillings scots ; hopes of all sorts , every hundreth weight , twelve shillings scots , spanish-leather , marikin , tanned-leather , wild-leather , and all other sorts of leather , except muscovia-leather , every hundred weight twelve shillings scots ; gloves of all sorts , each duzon twelve shillings scots ; whale-bone , or ballen , every two hundred weight twelve shillings scots : and his majesty , with advice and consent of his estates of parliament , doth hereby rescind and annull the eight act of the second parliament , first session of king charles the second , and in all time-coming , statutes and ordains , that the above-mentioned sums upon the foresaids commodities , imported into this kingdom , shall be ▪ payed in to the tacks-men and collectors of his majesties customs , by the merchants or other importers of the saids goods , before they break bulk , in the same way and manner that his majesties customs upon forraign commodities are payed in by the merchants and others ; and ordains the general-collectors , tacks-men and farmers of his majesties customs , to compt yearly in exchequer for the whole imposition above-specified , according to the rate of twelve shillings scots per ounce , in stead of the ounce of bullion formerly payed in in specie by the merchants , and to make a general aeque for their several sub-collectors . and his majesty , with advice and consent foresaid , doth hereby annex the foresaid imposition for ever unto the imperial crown of this kingdom , to remain with his majesty , his heirs and lawful successors , in all time-coming , for supporting the charge and expence of a free coynage , and for paying the sallaries of the officers of mint . and his majesty , with advice and consent of the estates of parliament , doth hereby appropriat and set apart the foresaid imposition , allanerly for the use of the said mint , and the supporting the charge of a free coynage . and his majesty , with advice and consent foresaid , doth hereby command and require the tacks-men and collectors of his customs , and their deputs , to keep the said imposition a-part by it self , and to pay the same quarterly to the lords commissioners of his majesties thesaury , thesaurer-principal , and thesaurer-deput for the time-being , who are hereby required to keep the saids moneys and imposition a-part by it self , separat and distinct from all other his majesties customs , and revenues ; and his majesties cash-keeper , or receivers , are hereby commanded to keep a-part the said moneys in a secure chest by it self , whereof the general , or master of mint , is to have one key , and the cash-keeper or receivers another key , and the said chest is not to be opened without the general or master of the mint be present ; nor shall the saids moneys be delivered but at such times as his majesty , or his privy council shall think sit , to the general and master of his majesties mint , for payment of the sallaries of the officers thereof , and for the desraying the expence and charge of a free coynage ; and for the further encouragement of merchants and others , to import bullion , his majesty with advice and consent of his estates of parliament , statutes and ordains , that any merchant or other person , as well strangers as natives , who shall import into this kingdom , and bring in to his majesties mint , any quantities of bullion , or silver of the finenesse of eleven deniers , two grains , which is hereby declared to be the standart of finenesse of this kingdom in all time coming , they shall receive out again from the general , or master of his majesties mint , for all such quantities imported by them , weight for weight in his majesties coyn ▪ of the standart of finenesse , and the species aftermentioned ; that is to say , for each pound scots of sixteen ounces , conform to the standart pile of scots weight , now in his majesties mint , one pound of sixteen ounces of his majesties current coyn , without being lyable to any charge or expence whatsoever for essaying , melting , supporting of waist in coynage of the saids quantities of bullion , or silver of the standart of eleven deniers , two grains fine aforesaid ; and for every pound of silver that shall be brought in to the mint , to be essayed , melted down , and coyned as aforesaid , that shall be finer upon essay than the standart of eleven deniers , two grains aforesaid , there shall be delivered for the same to the merchants , or other importers thereof by the officers of the mint , so much more than a pound , as the same doth in proportion and value amount unto the finenesse and value , and for every pound of silver that shall be brought in to the mint to be essayed , melted down , and coyned as aforesaid , that shall be courser or baser than eleven deniers , two grains fine , there shall be delivered by the officers of the mint , so much less than a pound , as the same doth fall short in fineness and value . it is always hereby declared , that it shall not be lawful to the officers of the mint , to import or bring in to be coyned any bullion , either in their own name , or in the name of others , with certification , if they contraveen , it shall be holden a malversation in their office , and punished according to the laws of the kingdom ; and statutes and ordains , that there shal be three piles of weight , whereof one to be keeped in exchequer , one by the dean of gild of edinburgh , and the third in the mint-house . and likeas , that there shall be a standart , or printed table keeped in the mint-house , of the value of money or bullion , according to the denominations of weights used in the mint of deniers , grains , primes and seconds ; and the ordinary denominations of pounds , ounces , drops and grains , by which merchants or others may know what they are to give in , or get out , when their bullion doth arise above , or fall below the standart appointed . and his majesty and estates of parliament , do hereby statute and ordain , that there shall be no preference in point of essaying , or coynage ; but that all siler brought in , and delivered in to the mint , to be essayed & coyned , shall be essayed , coyned and delivered out to the respective importers , according to their order and times of bringing in , and delivering the same to the mint , and not otherwayes , so as he that shall first bring in and deliver any silver to be coyned , shall be holden and accounted the first person to have the same essayed , coyned and delivered , and he or they that shall bring in the silver next , to be accounted the second person , to have the same essayed , coyned and delivered , and so successively in course , and that the silver brought in , and coyned as aforesaid , shall be in the same order delivered to the respective bringers in thereof , their heirs , executors and assigneys , successively without preference of one before another , and not otherways ; and if any undue preference be made in entering of any silver , or delivering out of coyned money , contrair to the true intent and meaning of this act , by any officer , or officers of the mint , or their deputs and servants , then the party or parties offending , shall be lyable to legal execution , as for a just debt , and to pay the value of the silver brought in and not entered , and delivered according to the true intent and meaning of this act , with interest , besides cost and damnages to the party or parties grieved , and shall over and above ipso facto be deprived , lose and amit their office or offices : providing always , that it shall not be interpreted any undue preference , to incur any penalty , in poynt of delivery of moneys coyned , if the officer , or officers , their deputs or servants shall deliver out , or pay any moneys coyned to any person or persons that do come and demand the same upon subsequent entries before others , that did not come to demand their moneys in their order and course , so as there be so much money reserved as will satisfie them , which shall not be otherways disposed of , but kept for them . and for the better clearing of what quantities of bullion , are from time to time delivered in to his majesties mint : as likwise , what quantities of silver do pass his majesties irons , his majesty , with advice foresaid , does statute and ordain , that there shall be a clerk , or book-keeper in the mint-office , who shall be obliged to keep two registers or records , in fair parchment-books , and in one of them , set down the times of in-giving the several quantities of bullion , by the merchants and others , in presence of the in-giver ; which book shall be made patent to any that shall require the same gratis , under the pain of deprivation : as likewise to receive subscribed accompts from the master-warden , counter-warden , and the essay-master , of all the quantities of silver coyned in his majesties mint , according to the standart and fineness ; which accompt so given in to him , he is to record in his other register , and the whole officers of the mint , or their deputs , for whom they shall be answerable , are to subscribe the same quarterly , to the effect , that it may be known what quantities of silver are past his majesties irons from time to time . and likewise , that the several officers of the mint are to keep particular books of record in their respective offices as formerly ; all which registers are to be made and keeped upon their highest perril ; and for the more orderly and clear performance hereof , it is hereby statute and ordained , that the master of his majesties mint for the time-being , or his deput , shall at the time of the delivery , and entry of any silver in the said mint , give to the bringer , or bringers in thereof to be coyned , a note , or recept under his hand , denoting the weight , fineness , and value thereof , together with the day and order of its delivery in to the said mint , bearing in the body of it , a clause of registration ; it being always hereby expresly provided , that the master of his majesties mint shall be obliged to deliver back again to the in-bringers , any quantitie of bullion he shall receive from them , in his majesties coyn , within the space of ten days , if the bullion do not exceed six thousand pound scots ; and on fifteen days , if it do not exceed twelve thousand pound scots : and in case the quantity be greater , within twenty days , and in case of failzie , the merchants or importers , shall have legal diligence against him , by charging him with horning , upon registration of his note aforesaid , with interest , by and attour cost and damnage therefore ; and for the further encouragement and assurance of such as shall import , and bring in to his majesties mint , any quantities of silver to be coyned , his majesty and estates of parliament , statutes and ordains , that'no confiscation , forefaulture , seisure , arrestment , stop , or restraint whatsomever , shall be made in the said mint , of any silver brought in to be coyned , or by reason of any embargo , breach of peace , letters of mark , or reprysal , or war with any forraign nation , or upon any other account or pretence whatsoever , publick or privat ; but that all silver brought in to his majesties mint , within this kingdom to be coyned , shall truly , and with all convenient speed , be coyned and delivered out to the in-bringers thereof , their heirs or assigneys , according to the rules and directions of this act. and his majesty and estates of parliament , further enact and declare , that the general , or master of his majesties mint , shall be obliged to give the coynage free to any merchant , strangers , or others importers , or in-bringers of bullion ; and in case the general or master of his majesties mint , shall refuse to accept of , enter and coyn any quantity , or quantities of bullion , to be brought in by the merchants , or others into his majesties mint , the general , or master for such refusal ( the merchant or importer taking instruments in a nottars hand thereupon ) shall ipso facto be deprived of their offices respective ; it being always hereby provided , that in case the quantities of bullion to be imported , shall exceed the stock of money granted to his majesty for supporting of a free coynage , in that case the general , or master of his majesties mint , is to make application to the lords of privy council , and to acquaint their lordships therewith , to the end , that by their appointment , the commissioners of his majesties thesaury , thesaurer-principal , or thesaurer-deput for the time being , may furnish and advance eighteen pounds scots money , for every stone that shall be brought in by merchants , or others to be coyned in the mint , until the next parliament , or session of parliament thereafter , shall take unto their consideration , the manner of re-imbursing his majesty for the said advance . it being always hereby declared , that the officers of the mint shall not be lyable to the obligation aforesaid , for refusing to coyn any such quantities brought in to the mint to be coyned , in case upon any accident , the commissioners of his majesties thesaury , thesaurer-principal , or thesaurer-deput for the time being , shall refuse or delay to pay eighteen pound scots per stone for the coynage aforesaid . and his majesty and estates of parliament , for certain weighty considerations , do hereby statute , ordain , and declare , that in all time coming , the species of current coyn within this kingdom , shall be , five shillings , ten shillings , twenty shillings , fourty shillings , and sixty shillings scots pieces , to be coyned of the standart of fineness and weight aftermentioned , viz. the sixty shillings scots pieces is to weigh , according to the denomination of weights used in the mint , twenty one deniers , eighteen grains , ten primes , eighteen seconds ; and in the ordinary denomination of weights , fourteen drop , eighteen grains : and in regard that the sixty shilling scots piece of the weight aforesaid , cannot be brought to a certain number , to make up a scots pound weight , without fraction ; therefore it is hereby declared , that the lesser species of coyn shall be delivered to the merchant , or others importers of bullion , to make up the just weights ; and when it shall fall out , that the fraction is less than a five shilling scots piece , in that case the merchant , or importer shall have such a proportion of a five shilling piece clipped off , and delivered to him , as may make up the just quantity of a pound weight , by which means there will be in a scots pound weight , according to the standart pile of weights now in the mint , seventeen sixty shilling pieces , one twenty shilling piece , one ten shilling piece , one five shilling piece , and a small fraction of three shilling four pennies scots ; the fourty shilling scots piece is to weigh according to the denomination of weights used in the mint , fourteen deniers , twelve grains , seven primes , and four seconds , and according to the ordinary denomination of scots weight , nine drop , twenty four grains , whereof twenty six , and one ten shilling piece , one five shilling piece , and a small fraction of three shilling four pennies scots , makes a pound weight ; the twenty shilling piece is to weigh according to the denomination of weights used in the mint , seven deniers , six grains , three primes , fourteen seconds , and according to the ordinary denomination of scots weight , four drop , thirty grains , whereof fifty two , and one ten shilling piece , one five shilling piece , and a small fraction of three shilling four pennies scots , makes a scots pound weight ; the ten shilling piece is to weigh according to the denomination of weights in the mint , three deniers , fifteen grains , one prime , nineteen seconds , and according to the ordinary denomination of scots weight , two drop , fifteen grains , whereof one hundred and five , one five shilling piece , and a fraction of three shilling four pennies scots , makes a scots pound weight ; the five shilling piece is to weigh , according to the denomination of weights in the mint , one denier , nineteen grains , twelve primes , twenty one seconds , and according to the ordinary denomination of scots weight , one drop , seven grains and a half , whereof two hundred and eleven , and a fraction of three shilling four pennies scots makes a scots pound weight . it is always hereby provided , that if upon tryal , it shall be found that the weight of the several species of the money appointed by this act , shall be any way prejudicial to the interest or trade of this kingdom , that in that caice his majesty , with advice of his privy council , may rectifie or alter the same as they find cause ; but because it may sometime fall out casually , that money be not coyned and fabricat exactly in all things , to the true standarts of weight , and fineness above , and after-specified : therefore his majesty and estates of parliament , statute and ordain , that if it shall casually fall out , that any species of coyn to be coyned for the future within this kingdom , be lighter or heavier than the standart of weight aforesaid , the officers of the mint may deliver the same , providing always it be meerly accidental and casual , and do not exceed the quantities afterspecified , viz. two grains over , or under the true weight of every sixty or fourty shilling piece , one grain over , or under the true weight of every twenty shilling , ten shilling , or five shilling scots piece , above-specified , appointed to be coyned by this present act : as also , if the money in the species foresaid to be coyned , shall fall out accidentally to be a grain finer , or courser than the true standart of eleven denier , two grains upon every twelve ounces weight , so to be coyned , the officers of the mint may deliver out the money to the merchants , or others , according to these remeeds of weight and fineness above specified ; it is hereby always expresly provided , that the officers of the mint shall by rio means work and fabricat the money with regard to the remedies foresaid , as they will be answerable at their highest peril . and it is statute and ordained , that they shall keep an exact record of all these remedies , both of weight and fineness , and compt for the same yearly in exchequer , for his majesties use ; and appoints and ordains in all time coming , that the essay-master shall take two pieces of every journal , that he shall cut off so much of one of the pieces as will make an essay , and shall put up the remainder , and the other whole piece , with the reported essay ▪ all which shall be put into the pix , the wairden , or counter-wairden , being always present , which is to be opened once every year in the moneth of december , at the sight of the privy council . and it is hereby declared , that the tryal of the pix being made , the whole silver in the pix is to be returned to the master as his own , and the say-master is to have no part of it ; the pix shall have three keys , one to be kept by the lords of thesaury , or thesaurer for the time being , one by the general , and one by the warden ▪ principal of the mint ; and his majesty , with advice and consent foresaid , doth statute and ordain , that all the money to be coyned for the time to come within this kingdom , shall be lettered and grained round the edges , that is to say , the sixty and fourty shilling pieces shall be lettered , the twenty , ten shilling , and five shilling scots pieces shall be grained round the edges , the particular impression , inscriptions , and reverses ; as likewise what poportion of each species of money shall be coyned in each stone weight of silver , are hereby left and recommended to the lords of his majesties privy council , who are by this present act fully impowered to consider and cognosce upon the fineness and weight of the gold coyn , when his majesty shall think fit to grant warrant for the same , and to regulat , appoint and determine the fineness , weight and species of the said gold coyn , and to ordain and appoint such impression , inscription and reverse , as they shall see cause . and his majesty and estates of parliament do further statute and ordain , that no copper shall be coyned without his majesties express warrand ; and that all copper which shall be coyned conform to his warrand , shall be coyned in two penny and six penny scots pieces , and that fourty of the six penny pieces , and sixscore twelve of the two penny pieces shall make a pound : and recommends to the lords of privy council , to appoint tryal to be taken of the weight of every journal of copper , before it go out of the mint-house , and what profit shall arise by the coynage of the copper , the officers of the mint shall be lyable to compt for the same to the exchequer . and his majesty and estates of parliament , do hereby further statute and ordain , that the sum of twelve thousand pounds scots of the imposition aforesaid , imposed by this present act , upon the commodities above-specified , shall be in all time coming set apart for payment of the officers-fees , maintaining of the fabrick of the mint , and providing new tools , and other incident charges relating to the mint , in manner after-specified , viz. the general of the said mint , the sum of three thousand six hundred pounds scots as his fee and sallary ; the sum of two thousand four hundred pounds scots to the master of the mint , and this over and above the sum of eighteen pounds money for every stone of silver that shall be coyned and passed his majesties irons , to be payed to him out of the remainder of the said imposition , for supporting a free coynage as aforesaid ; the sum of one thousand two hundred pounds scots money to the principal wairden ; the sum of one thousand two hundred pounds scots to the essay-master ; the sum of seven hundred and twenty pounds scots money to the counter-wairden ; the sum of six hundred pounds scots to the sinker or graver ; the sum of four hundred and eighty pounds scots money to the clerk or book-keeper ; the sum of three hundred thirty three pounds six shilling eight pennies scots to the clerk of the bullion , who is to be clerk for the time to come to this new imposition , as he was formerly to the bullion , or twelve shilling per ounce payed in lieu thereof ; to the master-smith , the sum of three hundred and sixty pounds scots , as their fees and sallaries ; and the sum of eleven hundred six pound thirteen shilling four pennies scots , to be payed in to the general and master , for maintaining the fabrick of the mint-house , providing of new tools , and other incident charges reraling to the mint , for which they are to compt yearly to his majesties exchequer , and the overplus ( if any shall be ) to go to the stock of free coynage aforesaid : the which sum of twelve thousand pounds scots for the officers of the mint , and other expenses thereof , is to be payed to the general and master of the said mint , together with the sum of eighteen pounds per stone to the master for the coynage of the money , at four terms in the year , viz. candlemass , whitsunday , lambmass and martinmass yearly ; and the said payment to commence from and after the first of november next . and his majesty and estates of parliament , further statute and ordain , that no heads , sweeps or chizel of any gold or silver to be coyned in his majesties in t , shall pass his majesties irons without taking a second essay thereof , as if the same were newly brought in to the mint to be coyned ; and to the effect that all matters relating to the coynage and mint , may be equally ordered and regulated according to this present act , and in such further ways and manner as his majesty and his privy council shall think fit . it is hereby recommended to his majesties privy council , by some of their number , to try every journal of coyn by it self distinctly , and to take exact tryal of all matters relating to the coynage , both as to the weight and fineness of the money , and other matters relating to the said mint , twice every year , viz. in the moneths of iuly and december yearly , and to call before them the whole officers of the mint , and to examine their proceedings , and to inspect their books , and to sign and subscribe approbations thereof , as they shall see cause : and this without prejudice of the said officers of the mint , their compting yearly to the lords of his majesties exchequer and thesaury , for all matters commited to their trust. xxv . act rescinding a clause in the addresse , made by the parliament , against the late earl of argile . iune . . our soveraign lord taking into his consideration the act of the first session of this parliament , intituled , act anent the address of the estates of parliament , of his majesties ancient kingdom of scotland , to his sacred majesty , against the arch-traitor , archibald campbel , sometime earl of argile ; and that his majesty from his unparalleled clemencie , and goodness , has been graciouslie pleased to pardon and indemnifie several persons , who were accessorie to , and involved into the said rebellion , notwithstanding the estates of parliament from their zeal to his majesties service , and detestation of the said rebellion , did by their address humbly desire , they should for ever be incapable of mercie , and that any of his majesties subjects who should interceed for them any manner of way , should incur the pain of treason ; and in regard his majesty did make no signification of his royal pleasure , as to the said address : therefore his majesty with advice and consent of his estates of parliament , casses , annuls and rescinds that clause in the same address , as to the exercise of his majesties mercy , or the intercessions of any of his majesties subjects , made or to be made in that behalf : and declares the same clause to have no strength , force , nor effect from the beginning , and to be null and void in all time coming . xxvi . act dissolving the lands and estates of earlestoun , craichlaw , and caitloch from the crown . iune . . our soveraign lord taking to his royal consideration , that his late majesty and his royal brother of ever glorious memory , by charter under the great-seal of this his majesties ancient kingdom , of the date at windsor-castle , the eleventh day of may , years , upon the account of sir theophilus ogilthrop , lieutenant colonel main , and captain hendry cornowall , their loyalty and service performed to the crown , did give , grant and dispone to them , their heirs and assigneys , the lands and estates of earlestoun , craichlaw and caitloch , and others more fully specified in the said charter , whereupon they were infest , and the said right ratified in parliament ; and which lands and estates fell in his late majesties hands , by the forefaultur of mr. william and alexander gordons , elder and younger of earlstoun , iames gordon of craichlaw , and mr. william ferguson of caitloch . likeas his late majesty , by his letter of the eleventh of may one thousand six hundred eighty directed to the lords commissioners of his highness thesaury , upon information that the saids three estates did exceed six hundred pounds sterling per annum , which his majesty was pleased to promise should be made good unto them , ordered , that before the said gift past in exchequer , the saids lords should take their security to pay the superplus , if any were , that the saids estates should be found to exceed the foresaid rent , and the debts payable out of the same by law , in such manner , and to such uses as his majesty should think fit thereafter to direct . and in like manner , his majesty by another letter , directed to the saids lords , of the th of february . required them to take sufficient security of the saids persons for payment of their share of the expence disbursed out of his late majesties thesaury , towards the suppressing of the rebellion in the year , not exceeding two years rent of the saids forefaulted estates , and accordingly the saids donatars granted security to the saids lords in the terms foresaids . as also , our soveraign lord considering , that his majesty by his letter of the last of october . upon the consideration that the saids estates did not exceed , but are rather considerably short of the saids six hundred pounds sterling per annum , and of the great trouble and expence , the said sir theophilus ( who also acquired the other two parts from main and cornowall ) was , and is exposed to , in attaining to the possession of the saids three forefaulted estates , and being desirous the same should be made fully effectual to him , free of all future trouble and inconvenience . therefore , as a further mark of his favour to the said sir theophilus , and in consideration of his great loyalty and service , authorized and required william duke of queensberrie , his majesties thesaurer-principal for the time , thesaurer-deput , and remanent lords of exchequer , to deliver to him the said security , and ordained the same to be delet out of the records of exchequer , which accordingly was done , and an act thereupon past the eight of ianuary last ; and further upon consideration of the said sir theophilus his constant loyalty and adherence to the crown , and signal evidence given by him thereof in the late rebellion of the late duke of munmouth , did order his right trusty and familiar cousen and counsellor , alexander earl of murray , conjunct-secretary of state for the kingdom of scotland , and his majesties high commissioner therein for the time , to represent the matter in parliament for a dissolution of the saids three forefaulted estates from the crown , to which the same were annexed in the last session of parliament , holden at edinburgh the sixteenth day of iune , one thousand six hundred eighty five years , which annexation proceeded upon a supposition that the yearly rent exceeded six hundred pound sterling a year ; whereas now upon serious examination it is found short ; which considerations being this day proponed in plain parliament , and the estates of parliament having fully pondered and considered the whole matter , and the truth thereof being sufficiently known , and made appear to them , by production of the foresaid charter , act of exchequer , and other evidences requisite ; and by the said lord high commissioner his grace , his declaration in pluin parliament , in name of , and by warrand from his majesty : his majesty and estates of parliament , after mature deliberation , finds the same just , sufficient , and reasonable causes for advising his majesty to dissolve the saids three forefaulted estates , all particularly mentioned in the said charter , from the crown , that the same may pertain , and belong to , and remain with the said sir theophilus ogilthrop and his foresaids , as their own proper heretage , heretably and irredeemably in all time coming ; and therefore , his majesty with advice and consent of the estates of parliament , has dissolved , and hereby dissolves the same lands and three forefaulted estates aforesaid from the crown and patrimony thereof , and from the said act of annexation , and from all clauses , conditions and qualifications therein-contained ; and finds , decerns and declares , that the foresaid dissolution having proceeded upon the grounds , causes , and deliberation aforesaid in plain parliament , does satisfie all the conditions , clauses and qualifications contained in the foresaid act of annexation , past the said last session of parliament , and shall have the force , strength , and effect of a general law and act of parliament , and shall be as valid and effectual to the said sir theophilus ogilthrop and his foresaids , for their security of the saids lands and estates as any dissolution granted by his majesty or royal ancestors , with advice and consent of their estates of parliament for the time , in favours of whatsomever person or persons at any time heretofore , and that notwithstanding of any clauses , conditions , or qualifications contained in the said act of annexation ; and notwithstanding of any security granted by the saids donatars , or any of them in exchequer . and his majesty with consent foresaid , hereby ratifies , approves and confirms the said act of exchequer , and grounds thereof in all points . and lastly , his majesty and estates of parliament , finds and declares , that this present act shall not fall under the act salvo iure , to be past in this , or any other session of this current parliament , but is hereby excepted forth thereof , in all time coming . xxvii . act of dissolution of the lands of grange in favours of sir thomas kennedy , lord provost of edinburgh . iune . . our soveraign lord , and estates of parliament taking into their serious consideration , that his majesties commissioner , as having special warrand and instruction from his majesty , having proposed and proponed in plain parliament , the loyalty and fidelity of sir thomas kennedy lord provost of edinburgh , and the good and acceptable services performed by him to the crown and kingdom , in the diligent suppressing of the late tumult within the city of edinburgh , and since ; and considering also the service done by the said sir thomas kennedy , against the rebels at bothwell-bridge ; and likewise the constant loyalty and eminent services and sufferings of lieutenant-collonel thomas kennedy of kirkhill his father , and his firm adherence to the crown , in so far as the said lieutenant collonel kennedy having attended the late king of ever blessed memory at worcester fight , he was then taken prisoner , and detained eighteen moneths in the kingdom of england , and afterwards sent prisoner to leith , from whence after he had stayed some while , he was transported to air , and kept prisoner there until the year . and his estate in the mean-time sequestrat , and possest by the usurpers , and himself absolutely ruined : all which services and sufferings being proposed and laid open in plain parliament , to the end the three estates might give his majesty their advice , judgement and determination re integra , whether the same were good and reasonable causes for dissolving from the crown , the lands of grange , formerly pertaining to thomas kennedy sometime of grange , with all other lands , heretages and rights which belonged to the said thomas , and which fell in his majesties hands , through the doom and sentence of forefaulture , given and pronounced against him upon the day of one thousand six hundred years , by the lords of justiciary for the crime of treason and laes-majesty , committed by the said thomas , and were annexed to the crown by the fourty two act of the first session of this current parliament : and the saids estates of parliament , after mature deliberation , and treating and consulting anent the premisses , being fully satisfied and convinced , that the saids particular services and sufferings , done , performed and undergone by the said sir thomas kennedy , lord provost of edinburgh , and lieutennant collonel thomas kennedy his father , the truth whereof is sufficiently known , and did appear to them , are just , sufficient and important reasons , concerning both his majesties interest , and publick good and welfare of this kingdom , that they should advise and consent to his majesties giving and disponing the foresaids lands of grange , and others above-exprest , to the said sir thomas kennedy , his heirs and assigneys ; and for that effect , that the saids lands should be dissolved from the crown , and from the said act of annexation . therefore his majesty , with advice and consent of the estates of parliament , decerns , ordains and declares , that the saids lands of grange , formerly pertaining to the said thomas kennedy sometime of grange , and all other lands , heretages and rights , which belonged to him , and which came in his majesties hands , and were annexed to the crown in manner foresaid , may be disponed to the said sir thomas kennedy lord provost of edinburgh , and his foresaids ; and for that effect , has dissolved , and hereby dissolves the same from the crown and patrimony thereof , and from the foresaid act of annexation , made the sixteenth of iune one thousand six hundred and eighty five , and from all other acts of annexation , and from all clauses , qualities and conditions therein contained : and his majesty with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution having proceeded upon the advice and deliberation of the estates of parliament re integra , and found by the saids estates to be for great , weighty and reasonable causes , concerning the good , welfare , and publick interest of the whole kingdom , first proposed and advised , and maturely pondered and considered , before any previous grant , or other right or deed , given , made or done by his majesty , in favours of the said sir thomas kennedy and his foresaids , of the lands and others above-mentioned , or any part or portion of the same , does fully satisfie the whole clauses , conditions and qualifications contained in the foresaid act of annexation , and shall have the force , strength and effect of a general law or act of parliament , and shall be as valid and effectual to the said sir thomas kennedy and his foresaids , for their security of the lands and others above-exprest , as any other act of dissolution past by his majesty , or his royal ancestors , with advice and consent of the estates of parliament , in favours of whatsomever person or persons at any time heretofore ; and declares that this act shall not be comprehended under the act of salvo iure , to be past in this present session , or any subsequent session of this current parliament , but is hereby excepted therefrom . xxviii . act dissolving the lands of cultness , north-berwick and goodtries from the crown iune . . our soveraign lord , and estates of parliament , taking into their consideration , that his majesties commissioner , as having special warrand and commission from his majesty , having proposed and expounded in plain parliament , the great and faithful services done to his majesty , and his royal brother of ever blessed memory , by iames earl of arran , first gentleman of his majesties bed-chamber , and his constant zeal and faithfulness to the interest of the crown ; and particularly , the said earl of arran his extraordinary expenses , when imployed by his majesties said dearest brother , as envoy to the french king , and of his activeness against the late earl of argile , and the other rebels associat with him in the year . for which he had no allowance , at least not suitable to his expenses ; and that he had faithfully executed the saids offices , and did very well behave himself therein ; and that he was instrumental in the defeat of these rebels , and had performed several other good and acceptable services : all which being proposed and laid open in plain parliament , to the end the three estates might give his majesty their judgement , advice and determination re integra , whether the same were true , good and reasonable causes of publick concernment , for dissolving the lands and barony of cultness , lying within the sheriffdom of lanerk , and the lands of north-berwick , lying within the constabulary of haddingtoun , and al 's the lands of goodtries , with the teinds and pertinents thereof , lying within the sheriffdom of edinburgh , sometime pertaining to thomas and david stuarts , late elder and younger of cultness , together with all other lands , annualrents , and others pertaining and belonging to them , from the crown , and which fell and became in his majesties hands , through the crimes of treason and laes-majestie , acted , committed and done by them , and either of them , and the doom and sentence of forefaulture , given and pronounced against them for the same , upon the and days of and years , and were annexed to the crown , by the fourty two act of the first session of this current parliament , and by the act of this present session of parliament : and the saids estates of parliament , after long and mature deliberation , treating , and consulting anent the premisses , being fully satisfied and convinced , that the particular services and expenses above-mentioned , done , performed and expended by the said iames earl of arran , the truth whereof is clearly known , and did appear to them as just , weighty and important reasons , concerning both his majesties interest , and the publick good and welfare of this kingdom , that they should advise and consent to his majesties giving and disponing the saids lands of cultness , north-berwick , goodtries , and the other lands above-written , with the pertinents , to the said iames earl of arran , his heirs or assigneys ; and for that effect , that the saids lands should be dissolved from the crown , and from the saids two acts of annexation : therefore , his majesty with advice and consent of the estates of parliament , decerns , ordains and declares , that the saids lands and barony of cultness , and lands of north-berwick and goodtries above-written , sometime belonging to the saids thomas and david stuarts , late elder and younger of cultness , with all other lands , heretages , annualrents and others belonging to them , or either of them , which came in his majesties hands , and were annexed to the crown in manner foresaid , may be disponed to the said iames earl of arran and his foresaids ; and for that effect , have dissolved , and hereby dissolves the same from the crown and patrimony thereof , and from the saids two acts of annexation , the one made the day of iune . and the other made the day of may . and from all other acts of annexation ; and from all clauses , qualities and conditions therein contained . and his majesty , with advice and consent foresaid , finds , decerns and declares this present act of dissolution , having proceeded upon advice and deliberation of the estates of parliament re integra , and found by the saids estates , to be for great , weighty and reasonable causes , concerning the good , welfare and publick interest of the whole kingdom , first proposed , advised and maturely pondered and considered in plain parliament re integra , and found by the saids estates to be for great , weighty and reasonable causes , before any previous grant , or other right or deed , given , made or done by his majesty , in favours of the said iames earl of arran , and his foresaids , of the lands and others above-mentioned , or any part or portion of the same , does fully satisfie the whole clauses , conditions and qualifications contained in the two foresaids acts of annexation , and shall have the force , strength and effect of a general law and act of parliament , and shall be as valid and effectual to the said iames earl of arran and his foresaids , for their security in the saids lands of cultness , north-berwick , goodtries , and others above-exprest , with the pertinents , as any other act of dissolution granted by his majesty , or his royal ancestors , with advice and consent of their estates of parliament , in favours of whatsoever person at any time heretofore . likeas , his majesty , with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution is , and shall not be understood to fall under , or be comprehended in any act salvo iure , to be past in this , or any other session of this current parliament , but is hereby excepted therefrom in all time coming . it is always hereby declared , that this act of dissolution of the lands of north-berwick , which did once belong to the said thomas stuart , sometimes of cultness , shall not prejudge the senators of the colledge of justice , as to their right and interest in these lands , who are hereby declared preferable for the same . xxix . act of dissolution in favours of the late earl of tarras . iune . . our soveraign lord and estates of parliament taking into their consideration , that his majesties commissioner , as having special warrand and instruction from his majesty , having proposed and expounded in plain parliament , the great benefite and advantage that did arise to the crown and government of this kingdom , by the full and sincere confession made by walter late earl of tarras , of several matters and circumstances , relating to the late horrid conspiracy , the discovery whereof , did in a great measure contribute towards the preventing the fatal consequences and effects , which so apparently threatned the peace of his majesties dominions : as also the promises and assurances given to him at the time of the said discovery of his princes bounty and favour upon that account : all which being proposed and laid open in plain parliament , to the end the three estates might give his majesty their judgement , advice and determination re integra , whether the same were true , good and reasonable causes , for dissolving from the crown , the lands of robertoun , howcleuch and borthwick-mains , with the pertinents which formerly appertained to the said walter , late earl of tarras , and came in his majesties hands through the doom and sentence of forefaulture , given and pronounced against him before the lords of his majesties justiciary , upon the day of one thousand six hundred years , and were annexed to the crown , by the act of the first session of this current parliament : and the saids estates of parliament , after mature deliberation , and treating and consulting anent the premisses , being fully satisfied and convinced , that the particular services done and performed by the said walter , late earl of tarras , in his confession and discovery foresaid , and the benefit and advantage thereby accruing to the crown and kingdom , and the promises and assurances given to him of his princes bounty and favour , the truth whereof is sufficiently known , and was made appear to them , are just. weighty and important causes , concerning both his majesties interest , and the publick good and welfare of this kingdom , that they should advise and consent to his majesties giving and disponing the saids lands of robertoun , howcleuch and borthwick-mains , with the pertinents , to the said walter late earl of tarras , his heirs and assigneys : and for that effect , that the same should be dissolved from the crown , and from the foresaid act of annexation . therefore , his majesty with advice and consent of the estates of parliament , decerns , ordains and declares that the saids lands of robertoun , howcleuch and borthwick-mains , with the pertinents , may be disponed to the said walter , late earl of tarras , and his foresaids ; and for that effect , has dissolved , and hereby dissolves the same from the crown and patrimony thereof , and from the foresaid act of annexation , made the sixteenth day of iune one thousand six hundred eighty five , and from all other acts of annexation , and from all clauses , qualities and conditions therein-contained . and his majesty , with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution , having proceeded upon the advice and deliberation of the estates of parliament re integra ; and found by the saids estates , to be for great , weighty and reasonable causes , concerning the good , welfare and publick interest of the whole kingdom , first proposed and advised , and maturely pondered and considered before any previous grant or other right or deed , given , made or done by his majesty , in favours of the said walter late earl of tarras , and his foresaids , of the lands and others above-mentioned , or any part or portion of the same , does fully satisfie the whole clauses , conditions , and qualifications contained in the foresaid act of annexation , and shall have the force , strength , and effect of a general law , or act of parliament , and shall be al 's valid and effectual to the said walter late earl of tarras , and his foresaids ▪ for their security of the lands and others above-exprest , as any other act of dissolution , granted by his majesty , or his royal ancestors , with advice and consent of the estates of parliament , in favours of whatsoever person at any time heretofore . likeas , his majesty with advice and consent foresaid , finds , decerns and declares , that this present act of dissolution shal not be understood to fall under , or be comprehended in any act salvo iure , to be past in this , or any other session of this current parliament , but is hereby excepted therefrom in all time coming . xxx . act anent the measure of bark ▪ iune . . our soveraign lord and estates of parliament , taking to their consideration the great prejudice that does arise through the uncertainty of the measure of bark within this kingdom ; do statute and ordain , that the constant measure of bark in all time coming shall be as follows , viz. that twenty two gallons shall be the measure of one boll of unbeaten bark , and so proportionally for lesser measures , and that the linlithgow barly measure , shall be the measure for all small beaten mallowie bark ; and prohibites and discharges all persons whatsomever , to make use of any other measures than the measures aforesaid , in buying or selling of bark in time coming , under the pain of an hundred pounds scots , toties quoties , beside the forefaulture of the bark , so bought or sold. xxxi . act in favours of john meikle founder , and others of that trade . iune . . his majesty and estates of parliament taking to consideration , the great advantage that the nation may have by the trade of founding , lately brought into this kingdom by iohn meikle , for casting of bells , cannons , and others such useful instruments , do for encouragement to him , and others in the same trade , statute and ordain , that the same shall enjoy the benefit and priviledges of a manufacture in all points , as the other manufactures newly erected , are allowed to have by the laws and acts of parliament , and that for the space of nineteen years next following the date hereof . xxxii . act salvo i●re cujuslibet . iune . . our soveraign lord , taking to consideration , that there are several acts of ratifications , and others past and made in this session of parliament , in favours of particular persons , without calling or hearing of such as may be thereby concerned or prejudged ; therefore his majesty , with advice and consent of the estates of parliament , statutes and ordains , that all such particular acts , and acts of ratification past in manner foresaid , shall not prejudge any third party of their lawful rights , nor of their actions and defences competent thereupon , before the making of the saids particular acts , and acts of ratifications ; and that the lords of session , and all other judges of this kingdom , shall be obliged to judge betwixt parties , according to their several rights , standing in their persons , before the making of the saids acts : all which are hereby exponed , and declared to have been made , salvo iure cujuslibet . xxxiii . act of adjournment . iune . . the kings majesty declares this parliament current , and adjourns the same to the day of august next , . and ordains all members of parliament to attend that day : and that there be no new election of commissioners from shires or burghs , except upon the death of some of the present commissioners . collected and extracted from the registers and records of parliament , by tarbat , cls. reg. a table of the printed acts . act of dissolution of the lands of cesnock and duchal . pag. act for the better inbringing of his majesties supply . pag. act ordaining interlocutors to be subscribed by judges . pag. act ordaining all executions to be subscribed by the witnesses , without necessity of stamping . pag. ibid. act anent the session . pag. ibid. act for the christmas vacans . pag. ibid. act of dissolution of the lands and barony of torwoodlie , in favours of lieutenant general drummond . pag. additional act anent high-ways and bridges . pag. act of annexation of the baronies of muir-hall and melfort to the crown . pag. act ordaining pursuers to furnish the act to the defenders , whereon they are to depone ▪ pag. act for winter-herding . pag. ibid. act for cleansing the streets of edinburgh . pag. ibid. act of dissolution in favours of the duke of gordon . pag. act against importing irish-victual , or cattel . pag. act declaring that inhibitions shall not be prejudged by recognition . pag. ibid. act for burying in scots ▪ linen ▪ pag. act for writing seasins by way of book . pag. ibid. act appointing the publication of the testimonies of witnesses . pag. act anent the registration of seasins and reversions . pag. ibid. act anent the nomination of clerks to the justices of peace . pag. ibid. act in favours of iohn adair , geographer , for surveying the kingdom of scotland , and navigating the coasts and isles thereof . pag. act and commission for plantation of kirks , and valuation of teinds . pag. act for regulation of judicatures . pag. act anent an humble offer made to his majesty for an imposition upon certain commodities , for defraying the expence of a free coynage , and other matters relating to the mint . pag. act rescinding a clause in the address , made by the parliament , against the late earl of argile . pag. act dissolving the lands and estates of earlstoun , craichlaw , and caitloch from the crown . pag. act of dissolution of the lands of grange in favours of sir thomas kennedy , lord provost of edinburgh . pag. act dissolving the lands of cultness , north-berwick and goodtries from the crown . pag. act of dissolution in favours of the late earl of tarras . pag. act anent the measure of bark . pag. act in favours of iohn meikle founder , and others of that trade . pag. ibid. act salvo iure cujuslibet . pag. ibid. act of adjournment . pag. a table of the acts and ratifications past in the second session of his majesties first parliament , and which are not here printed . protestation by some noble-men and others , concerning their precedency in the rolls of parliament . his majesties letter to the parliament , with the parliaments answer . act for several yearly fairs and weekly mercats to some noble-men and others . act of dissolution of the lands of ochiltrie , in favours of william cochran . act dissolving from the crown , lands which held of other superiours than the king. act in favours of the dutches of hamilton , anent the office of justice-general , in the isle of arran . act and reference to the council anent the importation of prohibited goods . act in favours of the shire of ross. act rescinding a commission granted the last session of parliament anent the estate of argile . act rescinding the act of the first session of this current parliament . act adding some commissioners of supply and justices of peace to several shires . act in favours of monsieur culbert , marchio de schanko . act in favours of sir alexander gibson . act for rebuilding the bridge of ugie . act in favours of robert cuninghame of achinhervie . act in favours of the duke of gordon . act in favours of mr. walter birnie minister . act appointing the earl of morray , and lord doun in his absence , conveener in the shire of inverness . ratification in favours of the duke of gordon . ratification in favours of the earl of perth , lord high chancellor . two ratifications in favours of the dutches of buccleugh . ratification in favours of the earl of middletoun . ratification in favours of the earl of dumbartoun . two ratifications in favours of the viscount of melfort . two ratifications in favours of the viscount of tarbat . ratification in favours of general drummond . ratification in favours of the laird of balnagoun . ratification in favours of sir thomas stuart of gairntullie . ratification in favours of sir iames stuart of bute . ratification in favours of sir iames caddel of muirtoun . ratification in favours of sir colin campbel of aberurquhile . ratification in favours of sir archibald cockburn of langtoun . ratification in favours of sir thomas kennedy , lord provost of edinburgh . ratification in favours of sir charles stuart and sir william ker. ratification in favours of sir william sharp of stonny-hill . ratification in favours of sir iohn gordon advocat . ratification in favours of the laird of inverneity . ratification in favour of hugh mcleod of cambiscurrie . ratification in favours of mr. alcxander mclean of ottar . ratification in favours of iohn reid of bara . ratification in favours of captain edward burd . ratification in favours of mr. william gordon advocat . ratification in favours of george keith of criechie . ratification in favours of iames urquhart of knockleith . ratification in favours of robert miln his majesties mr. mason . ratification in favours of lady mary bruce and william cochran . finis . tracts written by john selden of the inner-temple, esquire ; the first entituled, jani anglorvm facies altera, rendred into english, with large notes thereupon, by redman westcot, gent. ; the second, england's epinomis ; the third, of the original of ecclesiastical jurisdictions of testaments ; the fourth, of the disposition or administration of intestates goods ; the three last never before extant. selections. selden, john, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) tracts written by john selden of the inner-temple, esquire ; the first entituled, jani anglorvm facies altera, rendred into english, with large notes thereupon, by redman westcot, gent. ; the second, england's epinomis ; the third, of the original of ecclesiastical jurisdictions of testaments ; the fourth, of the disposition or administration of intestates goods ; the three last never before extant. selections. selden, john, - . littleton, adam, - . white, robert, - . selden, john, - . jani anglorum facies altera. english. selden, john, - . england's epinomis. selden, john, - . of the original of ecclesiastical jurisdiction of testaments. [ ], , [ ], , [ ], p., [ ] leaf of plates : port. printed for thomas basset ... and richard chiswell ..., london : mdclxxxiii [ ] each part has special t.p. and separate paging. reel guide erroneously identifies this work as wing s a. engraved frontispiece portrait of the author signed: r: white sculpsit. error in paging: p. of second count misnumbered . errata: p. [ ] following p. [ ] of first grouping. reproduction of original in the duke university library. includes bibliographical references. the reverse or back-face of the english janus, to-wit, all that is met with in story concerning the common and statute-law of english britanny ... / written in latin by john selden ... ; and rendred into english by redman westcot, gent. london : printed for thomas basset, and richard chiswell, mdclxxxii [ ] -- england's epinomis / by john selden, esquire. london : printed for thomas basset ... and richard chiswell ..., mdclxxxiii [ ] -- two treatises written by john selden ... : the first, of the original ecclesiastical jurisdiction of testaments, the second, of the disposition or administration in intestates goods. london : printed for thomas basset ... and richard chiswell ... mdclxxxiii [ ]. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- england -- history and criticism. probate law and practice -- england. ecclesiastical law -- england. inheritance and succession -- england. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion johannes seldenus . armig : tracts written by john selden of the inner-temple , esquire . the first entituled , jani anglorvm facies altera , rendred into english , with large notes thereupon , by redman westcot , gent. the second , england's epinomis . the third , of the original of ecclesiastical jurisdictions of testaments . the fourth , of the disposition or administration of intestates goods . the three last never before extant . london , printed for thomas basset at the george in fleet-street , and richard chiswell at the rose and crown in s. paul's church-yard . mdclxxxiii . the reverse or back-face of the english janus . to-wit , all that is met with in story concerning the common and statute-law of english britanny , from the first memoirs of the two nations , to the decease of king henry ii. set down and tackt together succinctly by way of narrative . designed , devoted and dedicated to the most illustrious the earl of salisbury . written in latin by john selden of salvinton , student of the inner-temple in london ; and rendred into english by redman westcot , gent. haec facies populum spectat ; at illa larem . london , printed for thomas basset , and richard chiswell . mdclxxxii . to the right honourable and truly noble lord , robert earl of salisbury , viscount cranborn , baron cecil of essenden , knight of the illustrious order of the garter , lord high treasurer of england , master of the court of wards , and privy counsellor to his most excellent majesty , james , king of great britain , france and ireland , heartily according to his high desert , i devote and dedicate , and as it were with consecrated flowr , and crackling grain of salt , i offer up in sacrifice . i am not in condition to do it with a costly victim , or a full censer . great sir , deign with favour to receive these scraps of collection ; relating intirely , what they are , and as far as the present age may be supposed to be concerned in ancient stories and customes , to the english-british state and government ; and so far forth to your most honoured name . which name of yours , whilest i , one of the lowermost bench , do with dazzled eye-sight look upon ( most noble lord , and great support of your country ) i devoutly lay down upon its altar this small earnest and pledge of my obedience and duty . the translator's preface to the reader . reader , thou canst not be such a stranger to thy own countrey , as to need my commendation of the learned , worthy and famous author of these following sheets ; or that i should tell thee , what a scholar , a philologer , a humanist , a linguist , a lawyer , a critick , an antiquary , and ( which proves him an absolute master of all these and many other knowledges ) what a writer , the great selden was . since it is liberally acknowledged by every body , that knows any thing ( not only at home , but abroad also among foreigners ) that europe seldom hath brought forth his fellow for exquisite endowments of nature , attainments of study , and accomplishments of ingenuity , sagacity and industry . and indeed , to save me the labour of saying any more concerning this non-pareil in all kinds of learning , his own works , which are now under a review , and will e're long be made publick in several volumes , will sufficiently speak his character , and be a more prevailing argument to indear him to thy good opinion and firm acquaintance , than mine or any other words can . my business now is only to give thee some account of the author's design in this little treatise , and of those measures i took in translating him , that is , in restoring him to his own native language ; though his great genius had made the latin and several other tongues , as natural and familiar to himself , as the english was . to speak first of the author , i do take this piece to have been one of his first essays , if not the very first ; wherein he launched into the world , and did not so much try the judgement , as deservedly gain the approbation of the learned : which was certainly one reason , why , though the whole matter of the book be of an english complexion and concern , yet he thought fit to put it forth in a latin dress . that this was his first specimen , or at least one of the first , i gather from the time of his writing it , viz. in the six and twentieth year of his age ; when i suppose he was not of any very long standing in the temple ; i mean , in all likelihood , whilst he was on this side the bar. for having fraught himself with all kind of learning , which the university could afford him ( which could be , we must imagine , no small time neither ; as i may be allowed to guess from that passage of his in this book , where he so affectionately recognizeth his duty and gratitude to his dear mother oxford ; who , if she had no other antiquity to boast of , is and ever will be famous for this her scholar , our great antiquary ; who hath also such a monument to be seen in her publick library , as will make her glory and his memory ever to flourish ) i say , having after some competent time taken leave of academical institutions , and being now engaged into the study of law , he thought he could not do his profession a better service , than by looking back into former times , and making a faithful collection of what might be pertinent and useful , to bring down , along through all changes and vicissitudes of state , the light and strength , the evidence and reputation of old institutes and precedents to our present establishments under our gracious and happy monarchy . may it , as it is in its constitution to the english people gracious ; so be ever in its success to it self , and consequently to us all , happy ! here then thou wilt find the rights of government through all ages , so far as our histories will help us ; here thou wilt see , from the first , our king setled in his just power , even in his ecclesiastical jurisdiction against the papal usurpation ; one shrewd instance whereof is , the forbidding appeals to the pope , at such a time when the popish religion was at its zenith in this island ; that is , when people in all probability were most ignorant . here thou wilt easily be brought to acknowledge the antiquity and usefulness of parliaments ( though under other names till after the conquest ) when all the barons , that is , as that title did at first import , all lords of mannors , all men of estate assembled together for the determination of publick affairs : which usage , because it produced too numerous and cumbersome a confluence , was afterwards for better convenience retrenched into a popular election by the kings writ to chuse some of the chiefest to act for all the rest . and sure enough , if we in duty keep up the royal prerogative , and our kings , as ever they have done , and ever , i hope , will , in grace and clemency oblige the peoples consent in their representatives ; we shall alwayes have such laws , such a government , such a correspondence betwixt prince and subjects , as must ( according to the rules of humane prudence , adding our piety to it ) make this kingdom of great britanny ( maugre the malice of the devil and his agents whatever , jesuits or fanaticks ) a flourishing and impregnable kingdom . having said this in general of the author's design , i shall not descend to particulars , which i leave to thy self , r●ader , to find out , in the perusal , that may be of good use and great consequence to the publick ; but fearing , thou maist think i am so much taken up with the author , that i have forgot my self , i have two or three words to speak of that sorry subject , before i leave thee . as to the translator ; i confess , it is no great credit for any one to appear in that figure ; a remark , which i have learn't from one , who hath translated another excellent piece of this noble author , ( noble i call him , sith nobility is rais'd by parts and merits , no less than continued by birth and descent ) it was his mare clausum , wherein he , i spoke of , hath acquitted himself very well , abating for his villanous dedication to the rump-parliament , which was then setting up for a republick ; in which dedication of his , he hath vilely and like himself ( i speak in charity , as to his interest , i mean , not his judgement or conscience at least , if there were any ) aspersed the royal family with weakness and collusion , to have lower'd the british renown . i am bid by him , who puts this into thy hands , to tell thee , that when he was embark'd into this employ ; whatever it was , upon the coasting of it over , he was surprized to find , he had undertaken such a difficult and hazardous voyage , and did presently conclude , that none but a selden ( that is , a person of omnifarious reading ) was fit to be a selden's interpreter . for no other person , but one so qualified , can be master of his sense , master of his expression . his ordinary style , where he delivers himself plainest , is as to the matter of it , so full of historical and poetical allusions and as to the method ( and hath that of crabbed in it besides ) so intricate and perplex , that he seems , even where he pretends to teach and instruct , to have intended only to amuse and confound the reader . in very deed , it is such a style , as became a learned antiquary , which is to be antique and oracular ; that one would think , the very paper , he wrote upon , was made of the sibyll's old-worn sheets , and that his meaning could not be fisht out without the assistance of a delian diver . however the translator ( though so much inferiour to the undertaking , as to be almost unacquainted with some considerable parts of it ) did presume ( whether rightly or no , must be left to thy judgement ) that he was not utterly unfurnished with those skills and helps , which might make the work intelligible and acceptable even to plebeians . for though it was at first designed by the excellent author in his latin for such as were meerly lawyers and scholars ( they must be both , that mean to understand it as he wrote it ) yet now it being done into english , it was to be calculated to the meridian of common capacities and vulgar understandings . which end he hath , he hopes , in some good measure answered ; and in order to which end , he hath , to supply the defects of his translation , at the end of the book subjoyned some annotations , which may serve partly to clear the author's meaning , and partly to vindicate himself in the interpretation . he did think once to have affixt those annotations to the places they belong to ; but upon second and better thoughts , he consider'd , that the authors quotations would be enow of themselves to charge the margin with , and a further superfoetation would but cloy and surbate the reader ; though in the body of the work , there are up and down many explanations inserted , to excuse him from the trouble of having recourse to those notes , which are added out of pure necessity , and not from any vanity of ostentation , since the whole , if it had its due , might seem to require a perpetual comment . in the main , which is enough for a translator , be his author what he will , he doth assure thee , that the meanest subject of england may now read one of her greatest champions and writers ( for learned pens sometimes do as good and as great service as valiant swords do ) so understandingly , that he may edifie and learn , what duty and deference he ought to have for the best of governments . and now , reader , excuse me in a digression , and do not impute it as a levity to me , that i follow my grave author . it is my duty so to do ; it is my happiness , if i can : he doth not despair , now he appears in english , to have female-readers too , to court him so far at least as to peruse his translation , who hath so highly courted them with noble caresses in that chapter , wherein he hath so learnedly pleaded the excellencies and rights of that angelical sex , ( if angels have any sex ) to the abashment and overthrow of the salick law. to what purpose did the author write so much in their commendation , if they were not to know it ? which , if the poor translator hath any obligations upon the sex , he hopes they will own this as an addition : not to mention that other chapter of his , where , like a gentleman and a lawyer both , he maintains that freedom peculiar to our english ladies , and which with lawyers leave , i may call the courtesie of england , in receiving of salutes , against the censure of rudeness on the one hand , and the suspicion of wantonness on the other . though i must confess also , that some of his citations in that defence , are so free , that i thought fit rather to leave them as i found them , than by putting them into english , to expose the modesty of the sex. i have no more to say , reader , but to beg thy excuse , for any thing , wherein i may appear to have come short of the weighty and abstruse senses of our great and worthy author , and that i may detain thee no longer from his conversation , to bid thee farewell . the author's preface to the reader . and that the tutelar or guardian of my threshold may not entertain thee with unlucky or ill-boding terms , he doth freely be speak thee health and greeting , whoever thou art , dear reader . moreover , he is in the humour to declare both the occasion of drawing the first furrow of this enterprize , and also the model and frame of the whole work , what it is , finished and compleated . it is a long while ago , considering how young a man i am , since from the first i have made it my hearty wish , that the ancient original and procedure of our civil law might more fairly and clearly be made out ; as far , i mean , as the thing will bear , and as what store we have of publick records affords assistance . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , for several men with several things are pleas'd , as said archilochus of old ; and i do own for my self , what seneca the declaimer saith , that i take pleasure in going back to studies of antiquity , and in looking behind me to our grand-sires better times . which , to say truth , they who do too much , slight , ardua dum m●tuunt , amittunt ver● viai . that is , whilst l●fty passes they do fear , through sloth they lose the certain tracks and paths of troth and , so may the muses alway favour me , they are such things as are — anteiqua , sepolta , vetusta , quai faciunt mores veterésque novosque tenentem moltarum veterum legum , divômque hominumque prudentem . — as saith another old latin poet ; that is , such stori●● as are antique , buried in rubbish , old and musty , which make one verst in customs old and new , and of laws , gods and men giving a view , render the careful student skill'd and trusty . some spare hours have been spent by me in reading over historians , chronologers , antiquaries , foreigners and our own countrey-men , those of ancient date and the more polite of the modern sort : those especially who seem'd to make out the quickest course to that goal and design i spoke of . i have carefully cull'd out whatsoever i met with , that lookt like the orders and decisions of praetors or lord chief justices , and whatsoever concerns the civil or prophane law. ( prophane i call that , which is not held by the religion of the church ; as sextus pompeius hath taught me . ) i did judge that there were a great many things in those writers worth the knowing , and which might deserve to be digested into a kind of volume according to order of chronology , i did in the first place advise , and took that special order with my self , that as to this undertaking , i might with the greater ease have my attendants ready at hand to wait upon my studies . i went about to give s●me closure and coment , such as it is , ( i. e. some method and connexion ) to the scattered and disjointed bulk , and i brought it to a conclusion ; and assoon as it came into my mind to publish it , i endeavoured according to that meanness , which it appears in , to finish it ( that i may make use of a mathematick term ) with its complement . i have set the model and frame upon a sure account ( not upon mine own credit neither , who am too apt to take on trust things suspected ) and in a compendious way : i have writ my self compendiously and succinctly ; i have transcribed out of others faithfully . i do on set purpose vouch the credit , i go upon , to be none of mine , but the authors , i have taken out of , that i may not be accused of false dealing by unskilful or careless readers . i have applyed my self not only to the meaning of the writers , or to their historical account , but even to the very words and syllables , which they spoke , and have inserted them printed in a different character ; those , i confess , unless it be from them of the middle age , many times sufficiently barbarous , that miserably want polishing , such as criti●ks cannot away with , and do very well agree with the records and reports of law , which we converse with . however i would not have thee disdain in the mean time brimful and wholsome draughts of liquor , because the bowl was not made in a potters shop of colias a place in athens , or in cold winter to slight a garment which is not made of attick wooll ; as plutarch hath admonished the hearers of philosophy . let young ladies speak finically with their golden flower-amours , and let them , who have store and leave at once , court the graces of words and beauties of expression . 't is true , the care of exact speaking , is a thing befits the muses , yet how the most abstruse mysteries even of the highest urania , of divinity it self , are laid open without it , the thomists , the scotists , and what other sects and parties of school-men there are , know well enough . and there are some others also , that think they know ; i mean the inquirers into heavenly calculations ( astrologers ) and the weather-wise-men ( almanack-makers ) who in good deed for the most part rely too much upon the trifling stories of their masters . now they , and not without good reason , have preferred the arab writers barbarously translated , and slovenly bonatus before julius firmicus and modern pontanus , as spruce as they are . these two may rather be termed grammarians , than astrologers . nor do aristotle's crabbed lectures of natural philosophy discourage interpreters or procure to themselves any discredit , by reason of the affected obscurity of speech , they are delivered in : and as to neatness of poetry , apollo himself hath been out-done by sappho , homer , hesiod . though the matter doth often surpass the workmanship ; yet who is there is so rigid or so fond a censurer , as to disparage and debase the matter upon the account of the workmanship ? which i would not have be said only of those passages , which i have brought into this piece out of those fore-mentioned authors , but also of the whole body of our common-law . i have , i hope , not unluckily begun with the very first inhabitants of this isle , as far as we can come to the knowledge of them . those authors , whom i have followed in the original of story , i have , as it was meet , set down and remark'd , adding the judgement and censure of the learned . afterward , besides caesar and tacitus there are but few that afford us any help , and that but in few things too . for the name of brittany was known but of late to the greeks , but of late to the romans ; and the britans were truly for a long while divided from all the world besides . but among foreigners the latter ages have enquired after them . i speak of strabo , pliny , ptolomy , others ; and a certain writer of asia , marcianus heracleotes , not y●t , that i know of , turned into latin , saith thus , albion the brittish isle hath in it thirty three nations , fifty nine remarkable cities ; and then he subjoyns other things concerning the number of rivers , promontories , havens and creeks or bays . i have stretched out this piece to the death of king henry the son of mawd the empress by jeoffrey the count of anger 's in france . in whose time , or near thereabout , are the first beginnings of our law , as our lawyers now account . there come in by the way richard called coeur de lion and king john ; but there is scarce any thing in that interim to our purpose . i have on purpose passed by mr. lambard's archaeonomia ( or antiquites of law ) without medling with it at all , only when some obvious accasion did sometimes suggest it for the explaining of what is set down by us . i have divided the whole into two books ; the first closes with the saxons ; the second begins with the norman conquest , the most famous aera or date of the english government in the reckonings of time . but however to refer the original of our english laws to that conquest ( as some make bold to do ) is a huge mistake ; forasmuch as they are of a far more ancient date . for it is a remark amongst statesmen , that new acquired empires , do run some hazard by attempting to make new laws : and the norman did warily provide against this danger , by bestowing upon the yielding conquered nation the requital of their ancient law : a requital , i say , but more , as it should seem , for shew than use ; and rather to curry favour with the people at the present , than in good deed for the advantage of the english name . wherein he in some measure followed well near the practice of alaricus , who having conquered the romans , and finding that they took it in dudgeon to be bound up by the laws of the goths , though in other things they were compliant enough , restored to them the roman laws , but by sly interpretations against the sense and meaning of the roman laws he drew these laws back again to the gothish . for the times on this side the normans entrance , are so full of new laws , especially such as belong to the right of tenancy or vassalage ; though other laws have been carefully enough kept up from the time of the saxons , and perhaps from an earlier date . for neither did the gliding decrees of that blazing-star , which appeared in the easter of that year , so well known for this victory , prognosticate , as the change of the kingdom ( a thing which astrologers affirm ) so the abolition of our laws ; and yet in some sense peradventure an alteration of them both ; at that rate , i mean , as jerom cardan writes , that the comet in the year . which appeared in aries ( to which sign , our island according to ptolomies doctrine is lyable ) under the north side of the milky way , being of a jovial , martial and mercurial force and efficacy , was the fore-teller or fore-runner of the change of religion ; which happened three years after in henry the eighth's time . but whatever may be thought in other cases , christianity is exempt from the laws and over-ruling power of the stars , and i do but too well perceive , that cardan's piety is wanting in this and in other instances , and particularly in casting our saviours nativity . and why do i too much besides my purpose , trouble my self about these things here ? go thy wayes to our janus , ( for thou canst hardly chuse but own him having two faces ) where to speak of our english brittish law ( 't is no treason i trow so to call it ) nobilitas nec origo latet , sed luce sequente vincitur . — that is , it 's noble rise doth not lye hid , but tight . attending makes it far more clear and bright . for , si nobilitas cunctis exordia pandit laudibus , atque omnes redeunt in semina causae . that is , if nobleness doth first commence all praise , and all things from their seeds do themselves raise . however it does not at all boast of its romulus's , its numa's , its decemviri , it s . books , it s . and . and . verses , and the like ; which having been digested long since ( as it were — non hos quaesitum munus in usus , that is , a boon not purchas'd for such use as this ) do far and near bear sway in courts of law throughout all europe ; yet is not the rise and original of our laws also less to be regarded ; nor is it perchance for distance of time further from iapetus than they . but go thy wayes , i say , and see that thou dost not undertake without reason and good advice , to fit any thing to the present age , otherwise than the changes , the repeals and cancelling parts of laws , and new emergencies and vicissitudes of affairs , which were frequent , will give thee leave . remember lucretius in this case alike as in others . quod fuit in pretio , fit nullo denique honore ; porrò aliud succedit , & è contemtibus exit , inque dies magis appetitur , floretque repertum laudibus , & miro'st mortaleis inter honore . that is , what was in price , at last hath no esteem ; whilst somewhat else starts up , and gains repute , and every day grows more in vogue and brute , and mortals strangely do it highly deem . according to what that other , and the greatest philosopher among the poets saith , multa dies , variusque labor mutabilis aevi rettulit in melius . — that is , time and the various toyl of changing age many things betters , and reforms the stage . and the greek sentence , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . for time to laws themselves gives law full oft . without a world of rubs in the way and slips or distances of years , i saw i was not able to put upon the work the face of a history , and to muster up all things that are wanting . very many things are so effaced by injury of time , several things have been lost through neglect , nor is the learned world under a small discontent , or at small variance by reason of this loss . these remains , which are left us , to be handled upon occasion , i have alwayes accounted pleasant researches : i , and perhaps one may say , that those learned pieces , which pomponius , rivallius , zasius , oldendorp , brissonius , and others , have published concerning the twelve tables , and the laws written upon oaken planks , upon elephants skins , and in former ages upon brass , are not of more use and advantage for the city spire in germany , than these collections may be for westminster-hall amongst us . we have said enough and to spare , concerning the model and frame of the work. for me now to beg the readers pardon , that i may speak a little concerning my self , seeing it was at my own choice , whether i would give him trouble or no , would be silly . if so be that any one shall shew himself more busie or pragmatical in these writings of mine , than becomes him ; 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , not knowing ( as we say ) a pig from a dog i would not have him ignorant , that i value it no more than a rush , to be lashed with the flouts of prattle-boxes or tittle-tatlers , and such creatures as carry the goddess nemesis on pickpack . nor does any one that is in his wits , when an ass kicks and flings at him to little or no purpose , regard an idle oafish affront so as to requite it . i paint upon my weather-boards averrunca , i. e. god forefend , ( as they did of old arse verse upon houses , to preserve them from fire . ) may intercedona , pilumnus , and deverra , drive away silvanus , and keep him off from doing this tender infant any harm . well! let ass●s and silly animals commend , find fault , tune their pipes , how they will : let the envious and ill natured with their sneerings , prate and talk ; let snotty nosed fellows and clowns , that feed upon cockle bread , appro●● what i write , or let them flout and fleer , or let them play jack of both sides ; it 's all fiddle faddle to me , nor would i put a straw between . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . brow-benders , making nose and chin to meet , with dangling beards like sacks down to your feet . ye rigid cato's and severe criticks , do ye take in good part , what i have done ; nor let me be altogether slighted , if by chance ye shall vouchsafe to look this way , nor with your skew looks fore-speak my harvest in the blade . i shall readily and willingly yield the conquest to him that fairly gets it , and rightfully corrects me . but whoever thou art of that sort of men , per meos fines & aprica rura lenis incedas , abeasque parvis aequus alumnis . o're my bounds and sunny plain take a gentle walk or twain ; then depart with friendly mind , to me and my lambkins kind . you , that are candid and courteous , know , that 't is a very hard matter to brighten things that are grown out of use , to furnish things obscure with light , to set off things that are disdained , with credit , to make things doubtful pass for probable , to assign to every thing it s own nature , and every thing to its own nature ; and that it is a very brave and gallant thing , as he sayes , for those that have not attained their design , yet to have endeavoured it ; when the will ( as we say ) is accepted for the deed. but i know too , that every cone or point of vision in the opticks differs from a right angle ; and i know how odious a thing a train or solemn procession is in the publick games . therefore , dear reader , i bid thee heartily farewel ; and with a fortunate endeavour , fetch out hence , what may make for thy turn . why do i delay all this while to let thee in ? 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . go thy wayes in , o'gods name . laudamus veteres , sed nostris utimur annis : mos tamen est aeque dignus uterque coli . we praise old times , but make use of our own ; and yet 't is fit they both alike be known . go in and welcome heartily ; and be not unkind to thy entertainer , from the inner temple london , decemb. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . in laudem dignissimi authoris , & politioris literaturae candidati , carmen . cum jovis effoeti pallas foret orta cerebro , vagitus teneros virgo patrima dedit . accurrit , tacitéque novam subducere prolem tentat , & abstrusis abdere juno locis . jupiter ingenuam solerti indagine natam quaeritat , & celeri permeat astra pede ; stat , cerebrique tuam cernens , seldene , minervam in natae amplexus irruit ille tuae . atque suam credit ; parilique ab imagine formae illa fuit suavis , suavis & illa fuit . lisque foret , nisi quae quondam lucina fuisset , musarum testis turba novena fuit . quam cognata jovis tua casta minerva minervae est , cum tantum fallax lusit imago deum ? aliud . dum tuus ambiguâ janus , facieque biformi respicit antiqua , & posteriora videt : archivos themidis canos , monumentaque legum vindicat à veteri semi-sopita situ . hinc duplex te jane manet veterane corona , gratia canitie , posteritate decus . gulielmus bakerus oxon. astraeae brit . ultima caelicolûm terras astraea reliquit . tu tamen alma redi & terras astraea revise : astraea alma redi tuis britannis : et diva alma fave tuis britannis : et diva alma fove tuos britannos : et diva alma regas tuos britannos : cantemus tibi sic tui britanni : foelices nimium ô tui britanni : tu tandem alma redis divum postrema britannis : ultima coelicolûm terras astraea revisit . alma redi . sacro redolent altaria fumo et tibi sacratis ignibus . alma redi . alma redi . posuit liber hic primordia juris anglos quo poteris tu regere . alma redi . alma redi . tibi templa struit seldenus : at aram qui tibi nil potuit sanctius . alma redi . e. heyward . in epigraphen libri carmen . quisnam iò mussat ? posuisti enyo arma ; jam doctos iber haùt batavos marte turbat ; foedere jam britannus continet orbem . clusium audax quis reserat latentem ? falleris . diae themidis recludo intima . haec portâ meliùs feratâ pandit eanus . i. s. the contents of the chapters . book i. chap. i. the counterfeit berosus with the monk that put him forth , both censured . the story of samothes the first celtick king. the bounds of celtica . from samothes , say they , the britans and gauls were called samothei . for which diogenes laertius is falsly quoted ; the word in him , being semnothei , page . chap. ii. an account of the semnothei . why so called ; the opinion of h. stephen , and of the author . old heroes and philosophers went by the names of demy-gods . the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or venerable goddesses , the same as eumenides , dispensers of justice . and by plutarch and orpheus they are set for civil magistrates . judges in scripture so called elohim , i. e. gods. these semnai theai the same as deae matres in an old british inscription , p. chap. iii. one law of samothes out of basingstoke concerning the reckoning of time by nights . bodinus his censure of astrologers for otherwise computing their planetary hours . a brief account of some of samothes his successors , magus , sarron , druis , from whom the druids , &c. p. chap. iv. k. phranicus . years after samothes being to reside in pannonia , intrusts the druids with the government . in the mean time brutus , aeneas his grand-son , arrives and is owned king by the britans , and builds t●oynovant , i. e. london . dunvallo molmutius . years after is king , and makes laws concerning sanctuaries , roads or high-wayes and plow-lands . k. belin his son confirms those laws , and casts up four great cause-wayes through the island . a further account of molmutius . p. chap. v. a brief account of q. regent martia , and of merchenlage , whether so called from her , or from the mercians . annius again censured for a forger , and his berosus for a fabulous writer , p. chap. vi. the story of brutus canvast and taken to be a poetick fiction of the bards . jeoffry of monmouth's credit called in question . antiquaries at a loss in their judgements of these frivolous stories , p. chap. vii . what the trojan laws were , which brutus brought in . that concerning the eldest sons inheriting the whole estate , confuted . in the first times there were no positive laws ; yet mention made of them in some very ancient authors , notwithstanding a remark of some ancient writers to the contrary , p. chap. viii . an account of the druids out of caesar's commentaries , whence they were so called . their determining in point of law , and passing sentence in case of crime . their award binds all parties . their way of excommunicating or outlawing . they have a chief over them . how he is chosen . their priviledge and immunity , p. chap. ix . the menage of their schools without writing . on other occasions they might use the greek letters , as caesar saith , yet not have the language . the greek letters then were others than what they are now . these borrowed from the gauls , as those from the phoenicians . ceregy-drudion , or the druids stones in wales . this place of caesar's suspected . lipsius his judgement of the whole book , p. chap. x. the druids reckoning of time . an age consists of thirty years . what authors treat of the druids . their doctrines and customs savour of pythagoras and the cabbalists . they were the eldest philosophers and lawyers among the gentiles . some odd images of theirs in stone , in an abby near voitland , described , p. chap. xi . the britans and gauls had laws and customs much alike , and whence that came . some things common to them both , set down ; in relation to the breeding of their children , the marrying of their wives , the governing of their families , burning women that killed their husbands , and burning some servants with the dead master for company . together with some remarks of their publick government , p. chap. xii . women admitted to publick debates . a large commendation of the sex , together with a vindication of their fitness to govern ; against the salick law , made out by several examples of most nations , p. chap. xiii . their putting themselves under protection by going into great mens service . their coins of money , and their weighing of it . some sorts of flesh not lawful to be eaten by them , p. chap. xiv . community of wives among the britans , used formerly by other nations also . chalcondylas his mistake from our civil custom of saluting . a rėbuke of the foolish humour of jealousie , p. chap. xv. an account of the british state under the romans . claudius wins a battel , and returns to rome in triumph , and leaves a. plautius to order affairs . a colony is sent to maldon in essex , and to several other places . the nature of these colonies out of lipsius . julius agricola's government here in vespasian's time , p. chap. xvi . in commodus his time king lucy embraces the christian religion , and desires eleutherius then pope , to send him the roman laws . in stead of heathen priests , he makes three arch-bishops and twenty eight bishops . he endows the churches , and makes them sanctuaries . the manner of government in constantine's time , where ends the roman account . p. chap. xvii . the saxons are sent for in by vortigern against the scots and picts , who usurping the government , set up the heptarchy . the angles , jutes , frisons , all called saxons . an account of them and their laws , taken out of adam of bremen , p. chap. xviii . the saxons division of their people into four ranks . no person to marry out of his own rank . what proportion to be observed in marriages according to policy . like to like the old rule . now matrimony is made a matter of money , p. chap. xix . the saxons way of judging the event of war with an enemy . their manner of approving a proposal in council , by clattering their arms. the original of hundred-courts . their dubbing their youth into men. the priviledge of young lads nobly born . the morganheb or wedding-dowry , p. chap. xx. their severe punishments of adultery , by maiming some parts of the body . the reason of it given by bracton . the like practised by danes and normans , p. chap. xxi . the manner of inheriting among them . of deadly feuds . of wergild or head-money for murder . the nature of country-tenures and knights fees , p. chap. xxii . since the return of christianity into the island . king ethelbert's law against sacriledge . thieves formerly amerced in cattel . a blot upon theodred the good , bishop of london , for hanging thieves . the country called engelond by order of king egbert , and why so called . the laws of king ina , alfred , ethelred , &c. are still to be met with in saxon. those of edward the confessor , and king knute the dane , were put forth by mr. lambard in his archaeonomia , p. chap. xxiii . king alfred divides england into counties or shires , and into hundreds and tythings . the original of decenna or court-leet , friburg , and mainpast . forms of law , how people were to answer for those whom they had in borgh or mainpast , p. chap. xxiv . king alfred first appointed sheriffs . by duns scotus his advice , he gave order for the breeding up of youth in learning . by the way , what a hide of land is . king edgar's law for drinking . prelates investiture by the kings ring and staff. king knute's law against any english-man that should kill a dane . hence englescyre . the manner of subscribing and sealing till edward the confessor's time . king harold's law , that no welch-man should come on this side offa's dike with a weapon , p. chap. xxv . the royal consorts great priviledge of granting . felons estates forfeited to the king. estates granted by the king with three exceptions of expedition , bridge , and castle . the ceremony of the kings presenting a turf at the altar of that church , to which he gave land. such a grant of king ethelbald comprized in old verse , p. the contetns . book ii. chap. i. william the conquerour's title . he bestows lands upon his followers , and brings bishops and abbots under military service . an account of the old english laws , called merchenlage , danelage , and westsaxen-lage . he is prevailed upon by the barons , to govern according to king edward's laws , and at s. albans takes his oath so to do . yet some new laws were added to those old ones , p. chap. ii. the whole country inrolled in dooms-day book . why that book so called . robert of glocester's verses to prove it . the original of charters and seals from the normans , practised of old among the french. who among the romans had the priviledge of using rings to seal with , and who not , p. chap. iii. other wayes of granting and conveying estates , by a sword , &c. particularly by a horn. godwin's trick to get boseham of the arch-bishop of canterbury . pleadings in french. the french language and hand when came in fashion . coverfeu . laws against taking of deer , against murder , against rape , p. chap. iv. sheriffs and juries were before this time . the four terms . judges to act without appeal . justices of peace . the kings payments made at first in provisions . afterwards changed into mony , which the sheriff of each county was to pay in to the exchequer . the constable of dover and warder of the cinque ports why made . a disorder in church-affairs reformed , p. chap. v. william rufus succeeds . annats now paid to the king. why claimed by the pope . no one to go out of the land without leave . hunting of deer made felony . p. chap. vi. henry the first why called beauclerk . his letters of repeal . an order for the relief of lands . what a hereot was . of the marriage of the kings homagers daughter , &c. of an orphans marriage . of the widows dowry . of other homagers the like . coynage-money remitted . of the disposal of estates . the goods of those that dye intestate , now and long since , in the churches jurisdiction ; as also the business of wills. of forfeitures . of misdemeanors . of forests . of the fee de hauberk . king edward's law restored , p. chap. vii . his order for the restraint of his courtiers . what the punishment of theft . coyners to lose their hands and privy members . guelding a kind of death . what half-pence and farthings to pass . the right measure of the eln. the kings price set for provisions , p. chap. viii . the regality claim'd by the pope , but within a while resumed by the king. the coverfeu dispensed with . a subsidy for marrying the kings daughter . the courtesie of england . concerning shipwrack . a tax levied to raise and carry on a war , p. chap. ix . in king stephen's reign all was to pieces . abundance of castles built . of the priviledge of coining . appeals to the court of rome now set on foot . the roman laws brought in , but disowned . an instance in the wonder-working parliament , p. chap. x. in king henry the seconds time , the castles demolished . a parliament held at clarendon . of the advowson and presentation of churches . estates not to be given to monasteries without the kings leave . clergymen to answer in the kings court. a clergyman convict , out of the churches protection . none to go out of the realm , without the kings leave . this repealed by king john. excommunicate persons to find surety . laymen how to be impleaded in the ecclesiastical court. a lay-jury to swear there , in what case . no homager or officer of the kings to be excommunicated , till he or his justice be acquainted , p. chap. xi . other laws of church affairs . concerning appeals . a suit betwixt a clergy-man and a lay-man , where to be tryed . in what case one , who relates to the king , may be put under an interdict . the difference betwixt that and excommunication . bishops to be present at the tryals of criminals , until sentence of death , &c. pass . profits of vacant bishopricks , &c. belong to the king. the next bishop to be chosen in the kings chappel , and to do homage before consecration . deforcements to the bishop , to be righted by the king. and on the contrary , chattels forfeit to the king , not to be detained by the church . pleas of debts whatsoever in the kings court. yeomens sons not to go into orders without the lords leave , p. chap. xii . the statutes of clarendon mis-reported in matthew paris , amended in quadrilegus . these laws occasioned a quarrel between the king and thomas a becket . witness robert of glocester , whom he calls yumen . the same as rusticks , i. e. villains . why a bishop of dublin called scorch-uillein . villanage before the normans time , p. chap. xiii . the poet gives account which of those laws were granted by thomas a becket , which withstood . leudemen signifies lay-men , and more generally all illiterate persons , p. chap. xiv . the pope absolves thomas a becket from his oath , and damns the laws of clarendon . the king resents it , writes to his sheriffs , orders a seisure . penalties inflicted on kindred . he provides against an interdict from rome . he summons the bishops of london and norwich . an account of peter pence , p. chap. xv. a parliament at northampton . six circuits ordered . a list of the then justices . the jury to be of twelve knights . several sorts of knights . in what cases honorary knights to serve in juries . those who come to parliament by right of peerage , sit as barons . those who come by letters of summons , are styled chevaliers , p. chap. xvi . the person convict by ordeal , to quit the realm within forty dayes . why forty dayes allowed . an account of the ordeals by fire and water . lady emme clear'd by going over burning coulters . two sorts of tryal by water . learned conjectures at the rise and reason of these customs . these ordeals , as also that of single combat condemned by the church , p. chap. xvii . other laws : of entertaining of strangers . an uncuth , a gust , a hogenhine ; what of him who confesseth the murder , &c. of frank pledge . of an heir under age . of a widows dowry . of taking the kings fealty . of setting a time to do homage . of the justices duty . of their demolishing of castles . of felons to be put into the sheriffs hands . of those who have departed the realm , p. chap. xviii . some laws in favour of the clergy . of forfeitures on the account of forest or hunting . of knights fees . who to bear arms , and what arms. arms not to be alienated . no jew to bear arms. arms not to be carryed out of england . rich men under suspicion to clear themselves by oath . who allowed to swear against a free-man . timber for building of ships not to be carryed out of england . none but free-men to bear arms. free-men who . rusticks or villains not such , p. chap. xix . of law-makers . our kings not monarchs at first . several of them in the same county . the druids meeting-place where . under the saxons , laws made in a general assembly of the states . several instances . this assembly under the normans called parliament . the thing taken from a custome of the ancient germans . who had right to sit in parliament . the harmony of the three estates , p. chap. xx. the guardians of the laws , who . in the saxons time seven chief . one of the kings among the heptarchs styled monarch of all england . the office of lord high constable . of lord chancellor , ancient . the lord treasurer . alderman of england , what . why one called healfkoning . aldermen of provinces and graves , the same as counts or earls and viscounts or sheriffs . of the county court , and the court of inquests , called tourn le viscount . when this court kept , and the original of it , p. chap. xxi . of the norman earls . their fee. their power of making laws . of the barons , i.e. lords of manours . of the court-baron . it s rise . an instance of it out of hoveden . other offices much alike with the saxons . p. the first book of the english janus . from the beginning of the british story down to the norman conquest . chap. i. the counterfeit berosus with the monk that put him forth , both censured . the story of samothes the first celtick king. the bounds of celtica . from samothes , say they , the britans and gauls were called samothei . for which diogenes laertius is falsly quoted ; the word in him , being semnothei . there came forth , and in buskins too ( i mean , with pomp and state ) some parcels of years ago , and is still handed about every where , an author , called berosus a chaldee priest ( take heed how you suffer your self to believe him to be the same that flavius josephus so often up and down quotes for a witness ) with a commentary of viterbiensis . or , rather to say that which is the very truth , john annius of viterbium ( a city of tuscany . ) a dominican frier , playing the leger-de-main , having counterfeited berosas , to put off his own strange stories , hath put a cheat upon the lady muse who is the governess of antiquities , and has hung a bantling at her back . after the genealogies of the hebrews drawn down by that author , whoever he be , according to his own humour and method , for fear he should not be thought to take in the kingdoms and kings of the whole universe , and the etymologies of proper names by whole-sale , as we say ; as if he had been born the next day after grandam ops was delivered of jupiter , he subjoyns samothes ( the very same who is ycleped dis ) the founder of the celtick colonies , stuffing up odd patcheries of story to entertain and abuse the reader . now , this i thought fit by the by , not to conceal , that all that space which is bounded with the river rhine , the alpes , the mediterranean sea , the pyrenean hills , and lastly , the gascoin and the british oceans , was formerly termed celtogalatia ; nay , that p●olomy hath comprized all europe under the name of celtica . well , as the commentary of annius has it , this samothes was brother to gomar and tubal by their father japhet , from whom first the britans , then the gauls were called samothei ; and especially the philosophers and divines that were his followers . and out of laertius he tells us , for it is evident , that among the persians the magi flourished , among the babylonians and assyrians the chaldeans were famous , among the celts and gauls the druids , and those who were called samothei ; who , as aristotle in his magick , and sotion in his three and twentieth book of successions do witness , were men very well skilled in laws divine and humane , and upon that account were much addicted to religion ; and were for that reason termed samothei . these very words you meet with in annius . the name of laertius is pretended , and the beginning of his volume concerning the lives of philosophers . why then let us read laertius himself ; and amongst the celts and gauls ( saith he ) the semnothei as saith aristotle in his book of magick , and sotion in his three and twentieth of succession . concerning the samothei any other wayes there is not so much as one syllable . that they were men well skilled in laws divine and humane , or that they had their name given them upon that account , only the latin and foisted edition of b. brognol the venetian has told us : whereas in truth , in all the ancient greek copies of laertius , which that great scholar harry stephen saw and consulted with ( and he sayes he perused eight or nine ) there is no mention at all made of that business . and yet for all that , i cannot perswade my self , that it was only for want of care , or by meer chance , that this slipt into the glosses : it does appear , that there have been able lawyers and master philosophers not only among the greeks , the gauls , and those of italy ; but also among the northern nations , however barbarous . witness the druids among us , and among the goths , as jornandes tells us , besides cosmicus , one diceneus , who , being at once king of men , and priest of phoebus , did together with natural philosophy and other parts of good learning , transmit to posterity a body of laws , which they called bellagines ; that is , by-laws . there are some , who in laertius read samothei ; which is a device of those men , who with too much easiness ( they are isaac casaubon's words ) that i may say no worse , suffer themselves to be led by the nose by that counterfeit berosus . chap. ii. an account of the semnothei . why so called ; the opinion of h. stephen , and of the author . old heroes and philosophers went by the names of demy-gods . the 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 or venerable goddesses , the same as eumenides , dispensers of justice . and by plutarch and orpheus they are set for civil magistrates . judges in scripture so called elohim , i. e. gods. these semnai theai the same as deae matres in an old british inscription . and indeed if the samothei had any thing to do with truth , or the semnothei any thing to do with the ancient law of the celts ( in as much as they write , that britany was once in subjection to the celtick kings ) i should judge it not much beside the design of my intended method to inquire into the name and nature of them both . but they being both one and t'other past all hope , except such a one as lucian returning from the inhabitants of the sun , or those of the moon , would write their history , to speak of them would be more than to lose ones labour . i dare not to say much of them . i imagine , sayes harry stephen , they were so called , for having the gods often in their mouths , and that in these words , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , the worshipful gods ; or for that they themselves were accounted amongst men as a kind of worshipful gods : but , writes he , this latter i do not take to be so likely as the former . but say i for my part , if i might venture my opinion against the judgement of so great a person , i guess this latter to be the likelier of the two . that the old heroes went by the names of gods , is a thing we read every where ; nor did antiquity grudge the bestowal of this honour even upon philosophers . not upon amphiaraus the prophet ; not upon aesculapius , not upon hippocrates , renowned physicians ; they are reckoned among the middle sort of gods. thus plato also was accounted by antistius labeo for a demy-god , and tyrtamus for his divine eloquence , had the name of theophrastus ( that is , god-like speaker ) given him by his master aristotle . no wonder then , if thereupon thence forward great philosophers were called semnothei , and as it were worshipful gods. these instances incline me , whilst i only take a view of their philosophy ; whom , if either the authority of annius , or the interpretation of brognol had sufficiently and fairly made out to have been also at the same time students and masters of law , i should hardly stick almost to affirm , that i had found out in what places the true natural spring and source both of their name , and as i may say , of their delegated power is to be met with . for i have it in pausanias ( forbear your flouts , because i waft over into greece , from whence the most ancient customs both sacred and prophane of the gentiles came ) i say in pausanias the most diligent searcher of the greek antiquities , i meet upon mars his hill at athens , and also in his achaicks ( or survey of achaia ) with chappels of the goddesses whom the athenians styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , worshipful . he himself also in his corinthiacks makes mention of a grove set thick with a sort of oaks on the left side of asopas a river in sicyon ( a countrey of peloponnesus ) where there stood a little chappel of the goddesses , whom the athenians termed semnai , the sicyonians called eumenides . the story of orestes and the eumenides or furies that haunted him is known to every body , nor can you tell me of any little smatterer in poetry , who doth not know , that they , together with adrastia , ramnissia , nemesis , and other goddesses of the same stamp , are pretended to be the avengers of villanies , and continually to assist jupiter the great god in punishing the wicked actions of mortals . they were black ones that met with orestes , but that there were white ones too , to whom together with the graces the ancients paid their devotions ; the same pausanias has left written in his survey of arcadia . i let pass that in the same author , she whom some called erinnys , that is a fury ; others called themis the goddess of justice . to be brief and plain ; the furies , that is , the avenging goddesses sit upon the skirts of the wicked ; but the eumenides , that is , the kind goddesses , as sophocles interprets them ( for that they were so called properly without the figure of antiphrasis or contradiction he is our author ) do attend the good and such as are blameless and faultless , and poor suppliants . nay , moreover plutarch writes in a poetick strain , that alcmaeon fled from these eumenides ; meaning in very deed , that he made his escape from the civil magistrates . in a word , the whole business we have been aiming at , orpheus compriseth in two verses of that hymn he has made upon those goddesses . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . which in a short paraphrase speaks thus ; but ye with eye of justice , and a face of majesty survey all humane race , judges commission'd to all time and place . see here plainly out of the most ancient divine among the heathens , how judges and the dispensers of law pass under the notion of these venerable goddesses : and it was a thing of custom to term the right of the infernal powers , as well as the doctrine of the heavenly ones , a thing holy and sacred . what hinders then i pray , but that one may guess , that the name , and title , and attributes or characters of the semnothei sprang forth and flowed from hence ; to wit , from the semnai theai or venerable goddesses ? homer in his poems calls kings 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , persons bred and nourished by jove ; yea , the eternal and sacred scriptures themselvs do more than once call judges by that most holy name elohim , that is , gods. the judgement is gods , not mans ; and ( as munster remarks out of rabbi kimchi ) whatsoever thing scripture designs to magnifie or express with hight , it subjoyns to it the name of god. god ( as plutarch has it out of plato , who in his attick styl● imitates our moses ) hath set himself out as a pattern of the good , the dreadful syllables of whose very not-to-be-uttered name ( though we take no notice of the cabalists art ) do strike , move and twitch the ears of mortals , and one while when thorough ignorance they straggle out of the way , do bring them back into the path or track of justice ; another while when they are stopt up with prejudice , and are overcast with gloomy darkness , do with a stupendous , dismal and continual trembling shake the poor wretches , and put them into ague-sits . nor let that be any hindrance , that so splendid and so manly a name is taken from the weaker sex , to wit , the goddesses . let us more especially have to do with the britans , as those amongst whom are those choice and singular altars , not any where else to be met with in the whole world , with this inscription , deis matribus , to the mother-goddesses . concerning these mother-goddesses , that excellent learned man ( that i may hint it by the by ) confesses he could with all his search find out nothing ; but if such a mean person as i , may have leave , what if one should imagine , that those goddesses , whom pausanias in his attick stories calls 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , were the same as these mother goddesses ? for so those names import . the mother of the gods is a title well known ; wherewith not only berecynthia , but also juno , cybele , tellus , ceres , and other shee s among mythologists are celebrated and made famous . be this , if you will , a thing by the by and out of the way ; as he tells us , no great wit ever pleased without a pardon . relying upon that ( the readers pardon i mean ) i undertook this job , whatever it is ; and upon confidence of that , i come back to the business . chap. iii. one law of samothes out of basingstoke concerning the reckoning of time by nights . bodinus his censure of astrologers for otherwise computing their planetary hours . a brief account of some of samothes his successors , magus , sarron , druis , from whom the druids , &c. we do not any where meet with any law enacted by samothes his authority . yet one only one concerning the account of times , basingstoke the count palatine , a very modern historian , attributes to him . he defined , sayes he , the spaces or intervals of all time , not by the number of dayes , but of nights ( the same thing , saith caesar of the gauls , and tacitus of the germans ) and be observed birth-dayes , and the commencements of months and years in that order , that the day should come after the night . truth is , the britans do at this time observe that fashion , which is most ancient , and highly agreeable to nature . and the evening and the morning was the first day , and so on , sayes the hebrew writer , whose countrey-men the jews also followed this custom . the peripateticks ( i. e. the followers of aristotle ) do also at this rate reckon privation in the number of their three principles ; and hereupon john bodin adventures to censure the common astrologers , that they , according to the course of the planets as they order it , and repeat it over and over , begin their unequal hours , from the rising , rather than the setting of the sun. they write , that after this samothes , there came in play magus , sarran , druis , bardus , and others more than a good many , in order of succession . sarron was not addicted to make laws ( 't is stephanus forcatulus helps us to this ) but to compose them , to put them into order , and to recommend them to practice , as one who reduced those laws , which his grand-father samothes , and afterward his father magus had made , into one volume , and with severe menaces gave order for the keeping of them . from druis or druides they will have the druids so called , a sort of philosophers so much famed and talked of in caesar , pliny and others : believe it who list for me . the whole business of the druids at present i put off till caesar's times . chap. iv. k. phranicus . years after samothes being to reside in pannonia , intrusts the druids with the government . in the mean time brutus , aeneas his grand-son , arrives and is owned king by the britans , and builds troynovant , i. e. london . dunvallo molmutius . years after is king , and makes laws concerning sanctuaries , roads or high-wayes and plow-lands . k. belin his son confirms those laws , and casts up four great cause-wayes through the island . a further account of molmutius . about nine hundred years after samothes , king phranicus ( take it from the british story , and upon the credit of our jeoffry ) intrusts the druids with the management of affairs , whilst he himself resided in pannonia or hungary . in the mean time brutus , the son of sylvius posthumus king of the latines , and grand-child to aeneas ( for servius honoratus in his comment upon virgil , makes sylvius to be the son of aeneas , not of ascanius ) being happily arrived by shipping , with corinus one of the chief of his company , and coming to land at totnes in devonshire , the britans salute and own him king. he after he had built new troy ( that is , london ) gave laws to his citizens and subjects ; those such as the trojans had , or a copy of theirs . a matter of six hundred years after dunvallo molmutius being king , ordained ( my authors besides jeoffry of monmouth , are ralph of chester in his polychronicon , and florilegus ) that their ploughs , temples and roads that led to cities , should have the priviledge to be places of refuge . but because some time after there arose a difference concerning the roads or high-wayes , they being not distinguished by certain limits and bounds , king belin son of the foresaid molmutius , to remove all doubt , caused to be made throughout the island four royal high-wayes to which that priviledge might belong ; to wit , the fosse or dike , watlingstrete , ermingstrete , and ikeniltstrete . ( but our learned countrey-man and the great light of britan , william camden , clarenceaux king at arms is of opinion , these cause-wayes were cast up by the romans ; a thing that tacitus , bede and others do more than intimate . ) moreover , so sayes jeoffry , he ordained those laws , which were called molmutius his laws , which to this very time are so famed amongst the english. forasmuch as amongst other things , which a long time after , gildas set down in writing , he ordained , that the temples of the gods , and that cities should have that respect and veneration , that whatsoever runagate servant , or guilty person should fly to them for refuge , he should have pardon in the presence of his enemy or prosecutor . he ordained also , that the wayes or roads which led to the aforesaid temples and cities , as also the ploughs of husbandmen should be confirmed by the same law : afterwards having reigned forty years in peace , he dyed and was buried in the city of london , then called troynovant , near the temple of concord ( by which temple , there are not wanting those who understand that illustrious colledge on the bank of thames , consecrated to the study of our common law , now called the temple and ) which he himself had built for the confirmation of his laws . at this rate jeoffry tells the story ; but behold also those things which polydore virgil hath gathered out of ancient writers , whereof he wanted no store . he first used a golden crown , appointed weights and measures for selling and buying of things , punisht thieves and all mischievous sorts of men with the greatest severity ; made a great many high wayes ; and gave order , how broad they should be , and ordained by law , that the right of those wayes belonged only to the prince ; and set dreadful penalties upon their heads , who should violate that right , alike as upon theirs who should commit any misdemeanour in those wayes . moreover , that the land might not lye barren , nor the people be frequently oppressed or lessened through dearth or want of corn , if cattle alone should possess the fields , which ought to be tilled by men , he appointed how many ploughs every county should have , and set a penalty upon them by whose means that number should be diminished : and he made a law , that labouring beasts which attended the plough , should not be distrained by officers , nor assigned over to creditors for money that was owing , if the debtor had any other goods left . thus much polydore . chap. v. a brief account of q. regent martia , and of merchenlage , whether so called from her , or from the mercians . annius again censured for a forger , and his berosus for a fabulous writer . the female government of martia , widow to king quintiline , who had undertaken the tuition of sisillius son to them both , he being not as yet fit for the government , by reason of his nonage ; found out a law , which the britons called the martian law. this also among the rest ( i tell you but what jeoffry of monmouth tells me ) king alfred translated , which in the saxon tongue he called merchenlage . whereas nevertheless in that most elaborate work of camden , wherein he gives account of our countrey , merchenlage is more appositely and fitly derived from the mercians , and they so called from the saxon word mearc , that is , a limit , bound or border . these are the stories , which writers have delivered to us concerning those times , which were more ancient than the history of the romans ; but such as are of suspected , o● doubtful , that i may not say of no credit at all . among the more learned , there is hardly any critick , who does not set down annius in the list of forgers . and should one go to draw up the account of times , and to observe that difference which is so apparent in that berosus of viterbium from sacred scriptures , and the monuments of the hebrews , one would perhaps think , that he were no more to be believed , than another of the same name , who from a perpendicular position of the wandring stars to the center of the world in the sign of cancer , adventured to foretel , that all things should be burnt ; and from a like congress of them in capricorn , to say , there would be an universal deluge . the story is in seneca . chap. vi. the story of brutus canvast and taken to be a poetick fiction of the bards . jeoffry of monmouth's credit called in question . antiquaries at a loss in their judgements of these frivolous stories . some have in like manner made enquiry concerning our british history , and stumbled at it . from hence we had brutus , dunvallo and queen martia : there are some both very learned and very judicious persons , who suspect , that that story is patched up out of bards songs and poetick fictions taken upon trust , like talmudical traditions , on purpose to raise the british name out of the trojan ashes . for though antiquity , as one has it , is credited for a great witness ; yet however 't is a wonder , that this brutus , who is reported to have killed his father with an arrow unluckily aimed , and to have been fatal to his mother at her very delivery of him ( for which reason richard vitus now after so many ages makes his true name to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is , mortal ) should be mentioned by none of the romans : a wonder , i say , that the latin writers should not be acquainted with the name of a latin prince , who gave both name and government to britany . did euemerus messenius alone ever since the world began , sail to the panchoans and the triphyllians ? indeed it is an ordinary thing for poets , to ingraft those whom they celebrate in their poems , into noble stocks and illustrious families , and by the assistance of their muses heightning every thing above the truth , to feign and devise a great many stories . and what else were the bards , as athenaeus tells us out of possidonius ; but poets reciting mens praises in song ? how many things are there in that fabulous age ( which in joseph scaliger's account would more aptly be called the heroick age of the world , i mean ) down from that much talked of deluge of pyrrha to the beginning of iphitus his olympiads ; how many idle stories are there mixt with true ones , and afterwards drest up and brought upon the stage ? very many nations , sayes trithemius , as well in europe as in asia , pretend they took their original from the trojans ; to whom i have thought good to lend so much faith , as they shall be able to perswade me of truth by sufficient testimony . they are frivolous things which they bring concerning their own nobility and antiquity , having a mind as it were openly to boast , as if there had been no people in europe before the destruction of troy ; and as if there had been no one among the trojans themselves of ignoble birth . he who made the alphabetical index to jeoffry of monmouth ( who was bishop of st. asaph too ) as he is printed and put forth by ascensius , propt up the authors credit upon this account , that , as he sayes , he makes no mention any where in his book , of the franks ; by reason forsooth , that all those things almost , which he has written of , were done and past before the franks arrival in france . this was a slip surely more than of memory . go to jeoffry himself , and in his nineteenth chapter of his first book you meet with the franks in the time of brennus and belinus among the senones , a people of france : a gross misreckoning of i know not how many hundred years . for the franks are not known to have taken up their quarters on this side the river rhine , till some centuries of years after christs incarnation . for howbeit by poetick licence and rhetorical figure aeneas be said to have come to the lavinian shores , ( which had not that name till some time after ) yet it were much better , that , both in verse and prose , those things which appertain to history , should be expressed according to that form of ovid ; where at the burning of rhemus his funeral pile he sayes , tunc juvenes nondum facti flevere quirites , that is , the young men then not yet quirites made , wept as the body on the pile they laid . and at this rate jeoffry might and ought to have made his translation , if he would have been a faithful interpreter . but as to our brutus whence the britans , saxo whence the saxons , bruno whence those of brunswick , freso whence those of friseland , and bato whence the batavians had their rise and name , take notice what pontus heuterus observes , as others have done before him . songs or ballads , sayes he , and rhymes made in an unlearned age , with ease obtruded falshoods for truths upon simple people , or mingling falsehoods with truths imposed upon them . for three or four hundred years ago there was nothing that our ancestors heard with greater glee , than that they were descended from the adulterous trojans , from alexander of macedonia the overthrower of kingdoms , from that manqueller hercules of greece , or from some other disturber of the world. and indeed that is too true which he sayes , — mensur aque fictis crescit , & auditis aliquid novus adjicit auctor . which in plain english speaks this sence . thus stories nothing in the telling lose , the next relater adding still to th' news . but i will not inlarge . to clear these points aright , antiquaries , who are at see-saw about them , will perhaps eternally be at loss , like the hebrews in their mysterious debates , for want of some elias to come and resolve their doubts . chap. vii . what the trojan laws were , which brutus brought in . that concerning the eldest sons inheriting the whole estate , confuted . in the first times there were no positive laws ; yet mention made of them in some very ancient authors , notwithstanding a remark of some ancient writers to the contrary . well ! suppose we grant there was such a person ever in the world as brutus : he made laws , they say , and those taken out of the trojan laws ; but what i pray were those trojan laws themselves ? there is one , i know well enough , they speak of , concerning the prerogative of the eldest sons , by which they inherited the whole right and estate of their deceased father . herodotus writes it of hector , son and heir to king priam , and jeoffry mentions it ; but did this law cross the sea with brutus into brittany ? how then came it , that the kingdom was divided betwixt the three brothers , locrinus , camber , and albanactus ? betwixt the two , ferrix and porrix ? betwixt brennus and belinus ? and the like of some others . how came it , that in a parliament of henry the eighth , provision was made , that the free-holds of wales should not thence-forward pass according to that custom , which they call gavelkind ? and anciently , if i be not mistaken , most inheritances were parted among the children , as we find in hesiods works . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . — i. e. we had already parted the estate . and to the same purpose many like passages there are in old poets , and in holy writ . but , as i said , what are those trojan laws ? perhaps the same with those , by which nephelococcygia , the city of the birds in aristophanes , ( or , as we use to say , vtopia ) is governed . the gravest writers do acknowledge , that those most ancient times were for the most part free from positive laws . the people , so says justin , were held by no laws : the pleasures and resolves of their princes past for laws , or were instead of laws . natural equity , like the lesbian rule in aristotle , being adapted , applied , and fitted to the variety of emergent quarrels , a●● strifes , ordered , over-ruled , and decided all controversies . and indeed at the beginning of the roman state , as pomponius writes , the people resolved to live without any certain law or right , and all things were governed by the hand and power of the king : for they were but at a little distance from the golden age , when — vindice nullo sponte suâ sine lege fidem rectumque colebant . that is to say , when — people did not grudge to be plain honest without law or judge . that which the heresie of the chiliasts heretofore affirmed , concerning the sabbatick or seventh millenary , or thousand years of the world. and those shepherds or governors of the people , to whom — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 — that is , — into whose hand jove trusts his laws and scepter for command . did govern them by the guidance of vertue , and of those laws which the platonicks call the laws of second venus . not out of the ambition of rule , as st. austin hath it , but out of duty of counsel ; nor out of a domineering pride , but out of a provident tenderness . do you think the trojans had any other laws ? only except the worship of their gods and those things which belong to religion . it was duty , says seneca , not dignity , to reign and govern : and an eye and a scepter among the aegyptians , were the absolute hieroglyphicks of kings . what ? that there is not so much as the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that is law , to be met with in those old poets , orpheus , musaeus , or homer , ( who was about an hundred and fifty years after the destruction of troy ) as josephus against appio , plutarch , and several modern writers have remarked : i confess , if one well consider it , this remark of theirs is not very accurate . for we very often read in homer and hesiod , the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies laws ; and in both of them the goddess eunomia from the same theme as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . — which being interpreted , is but they by legal methods bear the sway i' th' city fam'd for beauties . — which is a passage in homers hymn to mother tellus , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. the law of song , ( which musicians might not transgress ) is mentioned in his hymn to apollo . nay great plato , one beyond all exception , has left it in writing , that talus ( who had the management of the cretan common-wealth committed to him , together with rhadamanthus , the son of jupiter , by king minos ) that he did thrice every year go the circuit through the whole island ( which was the first country , as polyhistor tells us , that joyned the practice of laws with the study of letters ) and kept assizes , giving judgment according to laws engraven in brass . i say nothing of phoroneus king of the argives , or of nomio the arcadian ; and in good time leave this subject . i could wish i might peruse jupiters register , wherein he has recorded humane affairs . i could wish , that the censure of some breathing library and living study ( which might have power over the ancients , as we read in eunapius that longinus had ) or that the memory of some aethalides might help us sufficiently to clear and make out the truth . hence our next passage is to the classick writers of the latin style and story . chap. viii . an account of the druids out of caesar's commentaries , whence they were so called . their determining in point of law , and passing sentence in case of crime . their award binds all parties . their way of excommunicating or outlawing . they have a chief over them . how he is chosen . their priviledge and immunity . cajus julius caesar was the first of the romans , who has committed to writing the religious rites , the laws and the philosophy of the drvids . their name is of a doubtful origination , by no means were they so called from that druis or druides we meet with in berosus : but whether they were so termed from a greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that signifies an oak , in that they performed none of their devotions without oaken leaves , as pliny and those that follow him are of opinion ; or from the dutch true-wise , as goropius becanus will have it ; or from trutin , a word which with the ancient germans signified god , as paulus merula quotes it out of the gospel of othfred ( though in the angels salutation , in the magnificat , in zachariahs song and elsewhere , trutin rather denotes lord than god ; and see whether there does not lye somewhat of the druid in the name of st. truien , among the people of liege , some having exploded st. drudo ) whencesoever they had their name , these gown men among the gauls , i and the britans too , were the interpreters and guardians of the laws . the discipline of these druids was first found in britany , and so far as it regards the civil court , we shall faithfully subjoyn it out of the forenamed caesar. . they order matters concerning all controversie , publick and private . so in the laws of the twelve tables at the same rate the knowledg of cases , of precedents , of interpreting was in the colledge of pontiffs or high priests , and such plainly our druids were . if any ill prank had been played , if murder committed , if there were a controversie about inheritance , about bounds of land , these were the men that determined it , these amerced rewards and punishments . . if any private person or body of men do not stand to their award , they excommunicate him , that is , forbid him to come to sacrifice , which among them is the most grievous punishment . . those who are thus excommunicated , are accounted wicked and ungodly wretches , every body goes out of their way , and shuns their company and conversation for fear of getting any harm by contagion . neither have they the benefit of the law when they desire it , nor is any respect shown to them . . the druids have one over them , who has the chiefest authority amongst them . . when he dies , if there be any one that is eminent above the rest , he succeeds in place : but if there be several of equal merit , one is chosen by majority of votes . . the druids were wont to be excused from personal attendance in war , nor did they pay taxes with the rest ; they were freed from military employ , and had an immunity of all things . the levites among the hebrews , who were the most ancient priests in the world , injoyed the same priviledge . chap. ix . the menage of their schools without writing . on other occasions they might use the greek letters , as caesar saith , yet not have the language . the greek letters then were others than what they are now . these borrowed from the gauls , as those from the phoenicians . ceregy-drudion , or the druids stones in wales . this place of caesar's suspected . lipsius his judgment of the whole book . . upon the account of that priviledge , they had in their schools ( which were most of them in britany ) a great confluence of youth . they are said to learn without book , says caesar , a great number of verses : therefore some of them spend twenty years in the discipline . nor do they judge it meet to commit such things to writing , whereas generally in all other , whether publick affairs or private accompts , they make use of greek letters . what ? greek letters ? so we read greek ones . why ! marseilles , a city of france , which was a greek colony of the phocians , had made the gauls such lovers of greeks , that , as strabo the geographer tells us , they writ their very contracts and covenants , bargains and agreements , in greek . the fore-mentioned julius caesar also writes , that there were tablets found in the camp of the switzers , made up of greek letters . but , for all that , i would not have any one from hence rashly to gather , that the greek language was in use to that age and people , or to these philosophers and lawyers . they made use of greek letters , therefore they had the greek tongue too ; this truly were a pitiful consequence . at this rate the targum or chaldee paraphrase , as paulus merula has it , and goropius before him , would consist of the hebrew language , because 't is printed in hebrew characters : and the like may be said of the new testament in syriack , done in hebrew letters . what ? that those very letters of the greeks in caesars time , and as we now write them , are rather gallick ( as borrowed from the gauls ) than greek ? he was acquainted with those greek letters , but did not yet know the gallick ones , which learned men do think the greeks took for their copy , after the phoenician letters , which were not altogether unlike the hebrew , were grown out of use . consult for this wolfgangus lazius his celtae , becanus his gallica , and if thou hast a mind , annius his archilochus , xenophons aequivoca , and what others write concerning linus , cadmus , palamedes , and simonides , the first inventors of the alphabet . in the mean time take this from me , that those ancient and rude gothick characters , which bonaventure vulcanius of bruges , lately put forth , with a little comentary of one without a name , do very much resemble the greek ones ( as also the russian characters do at this day ) and that those which are now latin letters , were at first brought over into italy out of arcadia , along with nicostrata the mother of evander , who was banished his country . but that which seems to put the matter out of all dispute , caesar being about to write to quintus cicero , who was then besieged somewhere in flanders , among the nervians , by great rewards perswades a chevalier , that was a gaul , to carry the letter for him : he sends it written in greek , lest peradventure it being intercepted , the enemy should come to know their design . to what purpose should he have done this , if that chevalier , who was a gaul , or if the gauls , or if the very druids themselves , who had the management of state , had been skilled in greek ? among the western hills of denbeigh , a county in north-wales , there is a place , as i read in our famous chorographer , commonly called ceregy-drudion , that is , the druids stones , and some small pillars are seen at yvoellas , inscribed with foreign characters , which some suspect to have been those of the druids . who if they have reason so to suspect , i would to god , time , with his rusty teeth , had spared those pillars , that so some light might shine from thence to clear this quarrel if so be our interpretation of that form of caesars speaking , which we brought , do not please ( as to strabo's testimony , that respects somewhat later times , and perhaps mainly concerns those who lived near the sea-side ) why mayst not thou , with that great scholar francis hotoman be of opinion , that the word graecis crept into this story , either by the carelesness or confidence of transcribers ? for elsewhere in that very author , where it is said , dextris humeris exertis , justus lipsius , the prince of criticks , remarks , that the word humeris is plainly redundant , thrust in perchance by the vamper of that story , julius celsus . and what so great a man , of so great a judgment as he was , did censure of those commentaries of caesar , in his book called electa , or choice pieces , take from himself thus . i see many patches stitched into that purple ; nor doth the expression it self there every where breath to my nostrils that golden ( as i may so say ) gum , or liquid myrrh , of pure antiquity . read it , read it over again , you will find many things idly said , disjoynted , intricate , vampt , said over and over , that it is not unreasonable to think , but that some novel and unskilful hand was added to this , as it were , statue of ancient work . therefore we may be easily cheated , if we stand upon such little scruples of words , as we shall meet with in one julius or other , caesar or celsus . chap. x. the druids reckoning of time . an age consists of thirty years . what authors treat of the druids . their doctrines and customs savour of pythagoras and the cabalists . they were the eldest philosophers and lawyers among the gentiles . some odd images of theirs in stone , in an abby near voitland , described . . the druids begun their months and years from the sixth moon ( so says pliny ) and that which they called an age after the thirtieth year . in the attick account an age or generation , and that of a man in his prime and strength , was comprized within the same terms , according to the opinion of heraclitus , and as it is in herodotus ; nor had nestor's triple age a larger compass , if one may believe eustathius . tiberius drove these druids out of the two gallia's , claudius banisht them out of rome , and the worship of the true god christ , sped them out of britany . what further appertains to the sacred rites and doctrine of the druids , ( not to speak further of caesar ) strabo , pliny , diodorus siculus , ( by the way his latin version we do not owe to poggius of florence , as the books published would make us believe , but to john frea formerly fellow of baliol colledge in oxford , if we may believe an original copy in the library of the said colledge . ) beside these , lucan , pomponius mela , ammianus marcellinus , and very lately otho heurnius , in his antiquities of barbarous philosophy , and others have , with sufficient plainness , delivered , yet so , that every thing they say savours of pythagoras ( and yet i am ne're a whit the more perswaded that pythagoras ever taught in merton-hall at oxford , or anaxagoras at cambridge , as cantilep and lidgate have it ) i and of the cabalists too ( for john reuchlin hath compared the discipline of pythagoras , and that of the cabalists , as not much unlike . ) whether the druids , says lipsius , had their metempsychosis or transmigration of souls , from pythagoras , or he from them , i cannot tell . the very same thing is alike to be said , concerning their laws , and the common-wealths which they both of them managed : they have both the same features as like as may be , as it was with cneius pompey , and caius vibius . for the samian philosopher did not only teach those secrets of philosophy which are reserved , and kept up close in the inner shrine ; but also returning from egypt he went to croton , a city of italy , and there gave laws to the italians , ( my author is laertius ) and with near upon three hundred scholars , governed at the rate , as it were of an aristocracy . the laws of zaleucus and charondas are commended and had in request . these men , says seneca , did not in a hall of justice , nor in an inns of court , but in that secret and holy retirement of pythagoras , learn those institutes of law , which they might propose to sicily and to greece , all over italy , both at that time flourishing . that holy and silent recess was perchance borrowed of the druids : forasmuch as what clement of alexandria witnesses , heretofore the more secret and mysterious arts were derived from the barbarians to the greeks . however the business be , it appears hence plainly , that the druids were of the oldest standing among the philosophers of the gentiles , and the most ancient among their guardians of laws . for grant they were of pythagoras his school , yet even at that rate they are brought back at least to the fiftieth or sixtieth olympiad , or if thou wilt , to the tyranny of the tarquins , which is about two and twenty hundred years ago . 't is true , pliny , cicero , austin , eusebius disagree in this point ; nor will i catch that mistake by the handle , which draws him , meaning pythagoras , back to numa's time . to what hath been said , i shall not grudge to subjoyn a surplage out of conradus celtes . he is speaking of some ancient images of stone , which he had seen in a certain abby at the foot of a hill that bears pines , commonly called vichtelberg , in the neighbourhood of voitland , which he conceives did by way of statue represent the druids . they were six in number , says he , at the door of the temple niched into the wall , of seven foot a piece in height , bare-footed , having their heads uncovered , with a greekish cloak on , and that hooded , and a satchel or scrip by their side , their beard hanging down to their very privities , and forked or parted in two about their nostrils ; in their hands a book and a staff like that of diogenes , with a severe forehead and a melancholy brow , stooping down with their head , and fastening their eyes on the ground . which description , how it agrees with those things which are recounted by caesar and strabo , concerning the golden adornments , the dyed and coloured vestures , the bracelets , the shaved cheeks and chin of the britans , and other things of the like kind , let them who are concerned look to that . chap. xi . the britans and gauls had laws and customs much alike , and whence that came . some things common to them both , set down ; in relation to the breeding of their children , the marrying of their wives , the governing of their families , burning women that killed their husbands , and burning some servants with the dead master for company . together with some remarks of their publick government . but forasmuch as britanny gave the beginnings and improvements to the discipline of these druids , and both britans and gauls had their government , customs , language , rites sacred and profane , every thing almost the same , or much alike , as mr. william camden hath some while since most learnedly made out , o mr. camden , with what respect shall i name thee ! in freta dum fluvii current , dum montibus umbrae lustrabunt convexa , ac dum cynosura britannos , semper honos , noménque tuum , laudesque manebunt . which in hearty english makes this acknowledgment of his worth , as long as rivers run into the main , whilst shades on mountains shall the welkin hide , and britans shall behold the northern wain , thy honour , name , and praise shall still abide . and it is evident , that a great part of britany was once under the government of divitiacus king of the soissons , a people of france . therefore these following remarks i thought not amiss to set down as british , whether they were imparted to this isle by the ancient gauls ( by reason of its nearness ) or whether the gauls owed them to the britans . . they do not suffer their children to come to them in open sight , ( they are caesar's words ) but when they are grown up to that age , that they may be able to undergo military duty and to serve in war. . the men , what mony they receive with their wives upon account of portion , they lay down so much out of their own estate upon an appraisement made to make a joint stock with the portion . there is an account jointly kept of all this mony , and the profits of it are reserved ; the longer liver is to have both shares , with the profits of the former times . . the men have power of life and death over their wives , as well as over their children . hereupon bodin charges justinian with a falshood , for affirming that other people had not the same fatherly power as the romans had . . when a master of a family , who is of higher birth and quality , dies , his kindred meet together , that if the manner of his death were suspicious , they may by torture , as servants were used , examine the wife concerning the business , and if she be found guilty , they torment her miserably and burn her alive . to this story that most excellent lawyer , and worthy lord chief justice of the common pleas , sir edward coke , refers the antiquity of that law , which we at this day use of devoting to the flames those wicked baggages , who stain their hands with the nefarious murder of their husbands . . those servants and dependents , who were known to have been beloved by their master in his life time , were , when the funeral rites were prepared , burnt with him for company . . it was ordered , that if any one by flying report or common fame had heard any thing from the borders , that might concern the common-wealth , he was to make it known to some magistrate , and not impart it to any body else . . the magistrates conceal those things they think fit , and what they judge may be of use to the publick , they discover to the populace . . no body has leave to speak of the common-wealth , or of publick affairs , but in council or parliament . . they came armed into the council or to parliament . so the custom of the nation was , saith livy ; and tacitus , the like of the germans . chap. xii . women admitted to publick debates . a large commendation of the sex , together with a ●indication of their fitness to govern ; against the salick law , made out by several examples of most nations . . it was grown a custom amongst them ( we meet with this in plutarch ) that they treated of peace and war with their women in company , and if any questions arose betwix● them and their allies , they left it to them to determine . the same custom the cecropians , ( that is , the people of athens ) once had , as austin relates it out of varro , before the women by majority of vote carried it for minerva against neptune . away with you , simonides , and whosoever you are , scoundrels , that unworthily abuse the finer and brighter sex. good angerona , thou goddess of silence , wash , nay stop eubulus his foul mouth , who denies there were ever any good women more than two in the world , to wit , chast penelope , and alcestis , who died in her husbands stead . how large an honour was paid to the counsels , the prudence , the virtue of the gaulish ladies in their chiefest affairs , and not without their desert ? how much honour even at this day , is yearly paid at orleance , on the eighth of may , to the statue of joan darcy of lorain , that stands on the bank of the river loir ; who obliged her dear country with a victory wonderfully got , when all had been lost . to pass by other arguments , antiquity holds this sex to be equally divine as the male. in heaven , sea , earth , together with jupiter , neptune , pluto , who were the gods that shared the world , there governed juno , salacia , proserpina , their goddesses . marry ! in varro's three fold divinity , there are more she-gods than he-gods . ipsa quoque & cultu est , & nomine foemina virtus . uirtue her self , howe're it came , is female both in dress and name . but i do not go to act over caius agrippa's part , by declaiming upon female excellency . the thing it self speaks more than i can , and the subject is its own best orator . i must add one thing which cornelius tacitus tells us of the britans , that they were wont to war under the conduct of women , and to make no difference of sex in places of command and government . which places yet there are some who stiffly deny , that women by right should have the charge of ; as being , what euripides says of them , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . that is , but ill for the stout feats of war , who scarce to look on iron dare . but those authors especially , who , propped up with the salick law ( as they call it ) write , that males only are by right of inheritance capable of the government of the french , they do hold and maintain this argument tooth and nail , with all the unkindness and spite as may be to the english law , which admits of women to the throne . they urge , that not only the laws of pharamond , but nature her self is on their side . the government of women ( 't is bodin of anjou sayes it ) is contrary to the laws of nature , which hath bestowed upon men discretion , strength of body , courage and greatness of spirit , with the power of rule , and hath taken these things from women . but , sweet mr. bodin , are not discretion , strength , courage and the arts of government , more to be desired and required in those who have the tuition of kings in their minority , than in the kings themselves till they are come to age ? truly i am of that mind . for why then , pray tell me , did not that reason of yours wring the guardianship of st. louis out of the hands of the queen-mother blanch ? why not out of isabella's hands under charles the sixth ? why not of catharine de medicis , whilst the two brothers francis and charles her pupils were incircled with the crown ? why not out of the hands of mary , louis the thirteenth being at this very time king ? were the jews , that i may go back to stories more ancient , blind , that they could not see the defects of womens nature , in the government of debora , who triumphed over sisera , and is sufficiently commended in holy writ ? were the italians blind under the government of the most prudent amalasincta ? the halicarnassians , under that of the most gallant artemisia ? the egyptians , among whom heretofore their women managed law-courts and business abroad , and the men lookt to home and minded huswifery ? and the aethiopians under their nicaula , whom being very desirous of wisdom , king solomon , the wisest man that has been ever since the world was , honourably entertain'd ? were the assyrians , under the government of their magnificent semiramis ? the massagetes , under that of the revengeful dame thomyris ? the palmyrenes , under that of the most chaste zenobia ? and that i may make an end once , under that of other excellent women , all nations whatever , none excepted but the franks ? who , as goropius will have it , came to throw off and slight female government upon this account , that in vespasian's time they had seen the affairs of their neighbours the bructeri in east friseland , whilst that scornful hag velleda ruled the roast , came to no good issue . i do very well know , that our perjured barons , when they resolved to exclude queen mawd from the english throne , made this shameful pretence , that it would be a shame , for so many nobles to be subject to a woman . and yet you shall not read , that the iceni ( our essex-men , &c. ) got any shame by that boadicia , whom gildas terms a lioness , or that the brigantes ( i. e. york-shire-men , &c. ) got any by chartismandua . you will read , that they got glory and renown by them both . reader , thou canst not here chuse but think of our late soveraign of ever blessed memory , the darling of britan , q. elizabeth , nor canst thou , whosoever thou art , but acknowledge , that there was not wanting to a woman ( what malmesbury writes of sexburga the queen dowager of cenwalch king of the west saxons ) a great spirit to discharge the duties of the kingdom ; she levied new armies , kept the old ones to duty ; she governed her subjects with clemency , kept her enemies quiet with threats ; and in a word , did every thing at that rate , that there was no other difference betwixt her and any king in management , but her sex. of whose ( i mean elizabeths ) superlative and truly royal vertues a rare poet , and otherwise a very learned man , hath sung excellently well , si quasdam tacuisse velim , quamcunque tacebo major erit : primos actus veteresque labores pros●quar ? ad sese revocant praesentia mentem . justitiam dicam ? magis at clementia splendet . victrices referam vires ? plus vicit inermis . 't is pity these are not well rendred into english. however take them as they are in blank verse . should i in silence some her uertues pass , which e're i so pass o're , will greater be : shall i her first deeds and old facts pursue ? present affairs to them call back my mind . shall i her justice in due numbers sing ? but then her clemency far brighter shines . or shall i her victorious arms relate ? in peace unarm'd she hath got more to th' state. what did the germans our ancestors ? they thought there was in that sex something of sanctity and foresight , nor did they slight their counsels , nor neglect the answers they gave , when questions were put to them about matters of business ; and as superstition increased , held most of them for goddesses . let him then , whatever dirty fellow it was , be condemned to the crows ( and be hang'd to him ) who is not ashamed out of ancient scrolls , to publish to the world , that they ( women ) agree with soldiers ( bully-rocks and hectors ) mainly in this , that they are continually very much taken up with looking after their body , and are given to lust , that souldiers themselves are not , nor endeavour to be more quick and sudden in their cheats and over-reachings , that soldiers deceive people at some distances of time , but women lye alwayes at catch , chouse and pillage their gallants all the wayes they can ; bring them into consumptions with unreasonable sittings up ; and other such like mad rude expressions he useth , not unfitting for a professor in bedlam colledge . plato allowed women to govern , nor did aristotle , ( whatever the interpreters of his politicks foolishly say ) take from them that priviledge . vertue shuts no door against any body , any sex , but freely admits all . and hermes trismegistus that thrice great man in his poemander according to his knowledge of heavenly concerns ( and that sure was great in comparison of what the owl-ey'd philosophers had ) he ascribes the mystical name of male-female to the great understanding , to wit , god , the governour of the universe . they ( the good women i have been speaking of ) from their cradle ( at this rate men commonly talk of them ) do too much love to have the reins of government , and to be uppermost . well! be it so , that they do love to govern ? and who is it doth not love them ? now a sin and shame be it for lovers to grudge to their beloved , that which is most desired and wished by them : nor could i forbear out of conscience with my suffrage , to assist as far as i could , that sex , which is so great and comfortable an importance to mankind , so sweet a refreshment amidst our sharpest toils , and the vicissitudes of life ; and in a word , is the dearest gift that dame nature could bestow upon man. but let us now return to caesar's gauls again . chap. xiii . their putting themselves under protection by going into great mens service . their coins of money , and their weighing of it . some sorts of flesh not lawful to be eaten by them . . very many of them , when they are opprest with debt or with great taxes , or with the injurious oppression of great men , put themselves out to service to the nobles . over such they have the same right or authority , as masters have over their servants or slaves . these things following are expresly related also of the britans themselves . . they use brass coin or rings ( some read it , plates ) of iron proportion'd to a certain weight , instead of money . but , ( saith solinus , a more modern historian ) they dislike and disallow of markets or fairs or money ; they give and take commodities by way of barter . camden is of opinion , that the custom of coining money , came in along with the romans among the cattieuchlani , that is , the people of buckinghamshire , bedfordshire and hartfordshire . he takes notice out of william the conqueror's book of rates or dooms-day book ( which is seasonable to mention upon this head of coins ) that as amongst the old romans , so amongst our ancestors , money was weighed ( as gervase of tilbury also tells us ) and so told out and paid down . now they paid customs to the romans ; and for this purpose they had coins stamped and marked with various shapes of living creatures and vegetables , which ever and anon are digged up out of the ground . and we read in a very ancient chronicle of the monastery of abendon , which had two kings cissa and ina for its founders , that at the laying the first foundations , there were found very old coins engraven with the pictures of devils and satyrs . one may very well suppose them to be british coins . . they do not think it lawful to taste of the flesh of hare , or hen , or goose , and yet they keep these creatures for pleasure and divertisement sake . why they forbore only hare , and hen , and goose , i am not able to give the reason . i perceive something of pythagoras , and something of the jewish discipline mixt . for that philosopher of samos abstained from the eating of flesh , not in general from all , but with a certain choice from that of some particular creatures . chap. xiv . community of wives among the britans , used formerly by other nations also . chalcondylas his mistake from our civil custom of saluting . a rebuke of the foolish humour of jealousie . . they have ten or twelve of them wives in common amongst them , and especially brothers with brothers , and fathers with their sons ; but what children are born of such mothers , they are fathered upon them by whom they were first lain with , when they were maids . o villany and strange confusion of the rights of nature ! dii meliorae piis , erroremque hostibus istum ! which in christian english speaks thus . good god! for th' pious better things devise , such ill as this i wish not t' enemies . however let not this platonick community of wives be more reproach to the britans , than that promiscuous copulation which was used by the thuscans , and before cecrops his time ( who for appointing marriage , that is , joyning one man and one woman together , was termed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i.e. as one may say two-shaped ) by the athenians , ( as theopompus , suidas and athenaeus report it ) was to them . besides , eusebius in his evangelical preparation writes , that our people for the most part were contented with one single marriage . did not , may one think , chalcondylas mistake caesar's meaning , who a hundred years ago and upwards setting himself to write history at athens , and peradventure over-carelesly drawing ancient customs down to the last age , ventured to affirm of the britans his contemporaries , that when any one upon invitation enters the house of a friend , the custom is , that he first lye with his friends wife , and after that he is kindly entertained ? or did that officious kiss , the earnest of welcome , which is so freely admitted by our women from strangers and guests , which some take particular notice of as the custom of our countrey , put a trick upon chalcondylas , and bring him into that mistake ? 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . sayes theocritus of old , that is , in empty kisses there is swéet delight . and , qui vult cubare , pangit saltem suavium , sayes the servant in plautus , he that would a woman win , with a kiss he doth begin . and that other fellow , quaero deinde illecebram stupri , principio eam suavium posco . and et jam illud non placet principium de osculo , sayes jealous amphitruo to his wife alcumena . and agesilaus mistrusting his wanton genius , refused the buss or salute of a handsome beautiful youth . for as he sayes , — parva leves capiunt animos , that is , small matters kindle the desire . and a loose spirit 's soon on fire . this our grecian knew well enough , and perchance thought of that unlucky hint , — si non & caetera sumpsit , haec quoque , quae sumpsit , perdere dignus erat . moreover , that great philosopher of lawyers baldus , hath set it down for a rule , that the fathers consent and betrothal is ratified and made good by the daughters admitting the wooer to kiss her . which point of law it would be very ridiculous to imagine should concern us , with whom both maids and married women do easily afford , and civilly too , them that salute them a kiss , not such as catullus speaks of billing like doves , hard busses or wanton smacks , but slight modest chaste ones , and such as sisters give to brothers . these civilities , when omitted , are alwayes signs of clownishness ; when afforded , seldom are accounted signs of whorishness . nor do the husbands in this case ( unless it be perhaps some horn-mad-cuckold ) with a wrinkled forehead shake their bull-feathers , or so much as mistrust any thing as upon jealousie of this custom . it may be chalcondylas being a little pur-blind , saw these passages as it were through a grated lattice , and made ill use of his mistake : i mean , whilst he compared our britans , who upon a matrimonial confidence trust their mates honesty , with the jealous italians , venetians , spaniards , and even his own countrey-men . which people , it is a wonder to me , they should so warily , with so much diligence and mistrust set pinfolds , cunning spies and close attendance , locks and keys , and bars and bolts upon their madonna 's chastity ( most commonly in my conscience all to no purpose ) when that which he has said is as good as oracle , though a wanton one . quod licet , ingratum est : quod non licet , acriùs urit . ferreus est , siquis , quod sinit alter , amat . siqua , metu dempto , casta est , ea denique casta est : quae , quia non liceat , non facit , illa facit . qui timet , ut sua sit , nequis sibi subtrahat illam ; ille machaoniâ vix ope sanus erit . in english thus , what 's frée , 's unpleasant ; what 's not , moves desire . he 's thick skull'd , who doth things allow'd admire . who , fear aside , is chaste , she 's chaste indéed ; who , cause she can't , forbears , commits the deed . who 's wife mistrusts , and plays the jealous whelp , is mad beyond physicians art and help . who does not know , that natures byass runs to things forbidden ? and he who attempts unlawful things , does more often lose those which are lawful . marry ! that free usage of the hot baths of baden in germany , men and women together , is much safer than being jealous . — quis non bonus omnia malit credere , quàm tanto sceleri damnare puellam ? that is , what good man would not take all in best sense , rather by living undisturb'd and frée ; than by distrustful foolish jealousie his lady force to quit her innocence ? but we have taken that pains upon a thing by the by , as if it were our proper business . chap. xv. an account of the british state under the romans . claudius wins a battel , and returns to rome in triumph , and leaves a. plautius to order affairs . a colony is sent to maldon in essex , and to several other places . the nature of these colonies out of lipsius . julius agricola's government here in vespasian's time . jvlius caesar gave a sight of britanny to posterity , rather than made a full discovery or a delivery of it . however malmsbury sayes , that he compelled them to swear obedience to the latin laws , certainly he did scarce so much as abridge the inhabitants from the free use of their own laws ; for the very tributes that were imposed upon them , they in a short time shook off , by revolting from the roman yoke . the same liberty they used and enjoyed to all intents and purposes during augustus , tiberius and caligula's reigns . aulus plautius as general by order of claudius caesar , brought an army into britany . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( so saith dio ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 that is , the inhabitants at that time were subject to divers kings of their own . he overcame in battel prince cradock and togodunus the two sons of king cunobellinus ; afterwards claudius himself came over into the island , fought a set battel ; and having obtained the victory , he took maldon in essex , the royal city of cunobellinus , disarmed the inhabitants , left the government of them , and the subduing of the rest of the people to plautius , and went back himself to rome , where he was honoured with a most splendid and stately triumph . for this was he , of whom seneca the tragoedian speaks : cuique britanni terga dedêre , ducibus nostris ante ignoti , jurisque sui . — which may be thus englished , to whom bold britans turn'd their back , t' our captains formerly unknown , and govern'd by laws of their own . the island being reduced great part under the romans power , and into a lieutenancy , a colony is brought down to maldon ( in essex ) as tacitus and dio has it , with a strong party of veterans , and is planted up and down in the countrey they had taken , as a supply against those that would rebel , and to train up their fellows or allies to the duties of the laws . an old stone speaks thus of that colony , cn . munatius m. f. pal . aurelius . bassus proc . aug . praef . fabro . praef . coh . iii. sagitariorum . praef . coh . iterum . ii. asturum . censitor . civium . romanorum . coloniae . victricensis . quae . est. in. britannia . camaloduni . besides , there was a temple built and dedicated to claudius ara ( or as lipsius reads it arra ) aeternae dominationis ; that is , the altar or earnest of an eternal government . but you will say , all this makes little to our purpose : yes , very much ; as that which brings from abroad the roman orders , laws , fashions , and every thing into britany . near st. albans , a town in hartfordshire , there was sure enough the seat of cassibellinus called verulams , and the burghers , as we learn from agellius , were citizens of rome infranchized , out of their corporations , using their own laws and customs , only partaking the same honorary priviledge with the people of rome : but we have the colony of maldon in essex , which upon another nearer account had all the rights and orders of the people of rome derived to it from the freedom of that city , and was not at its own disposal , or to use its own laws . and the like was practised in this island in more than one place . the reverse of severus the emperours coyn shews it . col . eboracum . leg . vi. victrix . and the coyn of septimius geta on either side . col . divana . leg . xx. victrix . this old divana ( which is the very same with deunana in ptolomy ) if you make it english , is chester the chief city of the cornavians , that is , the people of cheshire , staffordshire , shropshire , &c. again , there is a piece of an old stone in the walls of bath in somersetshire near the north gate has this inscription upon it , dec . coloniae . glev. vixit . ann. lxxxvi . glevum was that then which glocester is now . it may be colchester had the same right of priviledge , unless you had rather derive its name from the river coln that runs aside it . in a word ( sayes seneca to albina ) how many colonies has this people of ours sent into all provinces ? where ever the roman conquers , he dwells . see what abundance there was of them in british province ; whose form of government , and other laws , that they were different from that of the britans , we may plainly perceive from that very form of their constitution after their detachment ; which i shall present you with out of that famous antiquary , and every way most learned and celebrious person justus lipsius . their manner and method was ( sayes he ) that the lands should be divided to man by man , and that by three grave discreet persons , whom they used to chuse for this purpose , who did set out their particular seats and grounds , and the town it self ( if there were one to be built ) and prescribed them rules and rights , and the form as it were of a new common-wealth : yet in that manner , that all things might bear a resemblance of rome and the mother city ; and that in the very places themselves the courts of law , the capitols , the temples , the state-houses or town-halls might be according to that model , and that there might be in the government or magistracy two persons as bailiffs in most places , like the two consuls at rome ; in like manner surveyors and scavengers , aldermen of the wards and headboroughs , instead of a senate or common council as we may call it . ) this is lipsius his account ; so that beatus gildas is not much out of the way , when he sayes , it was reckoned not britannia , but romania . and an ancient copy of verses , which joseph scaliger has rescued out of its rust and mouldiness , has it : mars pater , & nostrae gentis tutela quirine , et magno positus caesar uterque polo ; cernitis ignotos latiâ sub lege britannos , &c. that is , in english , sire mars , and guardian of our state quirinus hight after thy fate , and caesars both plac'd near the pole with your bright stars ye do behold , and th' unknown britans aw , t' observe the roman law. the stately seraglio or building for the emperours women at venta belgarum ( a city at this day called winchester ) and other things of that kind i let pass . in the time of the emperours vespasian , titus and domitian , julius agricola , tacitus his wives father , was lord deputy lieutenant here . he encouraged the barbarous people to civil fashions , insomuch that they took the roman habit for an honour , and almost every body wore a gown ; and as juvenal has it in his satyr , gallia causidicos docuit facunda britannos . the british lawyers learnt of yore , from the well-spoken french their lore : t'imply , hereafter we should sée our laws themselves in french would be . chap. xvi . in commodus his time king lucy embraces the christian religion , and desires eleutherius then pope , to send him the roman laws . in stead of heathen priests , he makes three arch-bishops and twenty eight bishops . he endows the churches , and makes them sanctuaries . the manner of government in constantine's time , where ends the roman account . in commodus the emperours time the light of the gospel shone afresh upon the britans . lucius the first king of the christians ( for the romans , as in other places , so in britany , made use of even kings for their instruments of slavery ) by the procurement of fugatius and damianus did happily receive from pope eleutherius the seal of regeneration ( that is , baptism ) and the sacred laws of eternal salvation . he had a mind also to have the civil laws thence , and desired them too . ovid long since had so prophesied of rome : juráque ab hâc terrâ caetera terra petet . that is , and from this countrey every other land their laws shall fetch , and be at her command . now eleutherius wrote him this answer : you have desired of us , that the roman and caesarean laws may be sent over to you ; that you may , as you desire , use them in your kingdom of britanny . the roman and caesarean laws we may at all times disprove of , but by no means the law of god. for you have lately through divine mercy taken upon you in the kingdom of britanny the law and faith of christ ; you have with you in the kingdom both pages of holy writ , ( to wit , the old and new testament ) . out of them , in the name and by the favour of god , with the advice of your kingdom , take your law , and by it through gods permission , you may govern your kingdom of britanny . now you for your part are gods vicegerent in your kingdom . howsoever by injury of time the memory of this great and illustrious prince king lucy hath been imbezill'd and smuggled , this upon the credit of the ancient writers appears plainly , that the pitiful fopperies of the pagans , and the worship of their idol-devils did begin to flag , and within a short time would have given place to the worship of the true god , and that three arch-flamens and twenty eight flamens , i. e. arch-priests , being driven out , there were as many arch-bishops and bishops put into their rooms ( the seats of the arch-bishops were at london , at york and at caerleon in wales ) to whom , as also to other religious persons , the king granted possessions and territories in abundance , and confirmed his grants by charters and patents . but he ordered the churches ( as he of monmouth and florilegus tell us ) to be so free , that whatsoever malefactor should fly thither for refuge , there he might abide secure , and no body hurt him . in the time of constantine the emperour ( whose pedigree most people do refer to the british and royal blood ) the lord president of france was governour of britanny . he together with the rest , those of illyricum or slavonia , of the east and of italy , were appointed by the emperour . in his time the lord deputy of britanny , ( whose blazonry was a book shut with a green cover ) was honoured with the title of spectabilis . there were also under him two magistrates of consular dignity , and three chief justices ( according to the division of the province into five parts ) who heard and determined civil and criminal causes . and here i set up my last pillar concerning the britans and the roman laws in britanny , so far forth as those writers which i have , do supply me with matter . chap. xvii . the saxons are sent for in by vortigern against the scots and picts , who usurping the government , set up the heptarchy . the angles , jutes , frisons , all called saxons . an account of them and their laws , taken out of adam of bremen . afterwards the scots and picts making incursions on the north , and daily havock and waste of the lands of the provincials , ( that is , those who were under the roman government ) they send to desire of the romans some auxiliary forces . in the mean time , rome by a like misfortune , was threatned with imminent danger , by the fury of the goths : all italy was in a fright , in an uproar . for the maintaining of whose liberty , the empire being then more than sinking , was with all its united strength engaged and ready prepared . so this way the britans met with a disappointment . wherefore vortigern , who was governour in chief , sent for supplies from the neighbouring germans , and invited them in . but according to the proverb , carpathius leporem ; he caught a tartar : for he had better have let them alone where they were . upon this account , the saxons , the angles , the jutes , the frieslanders arrive here in their gally-foists in the time of theodosius the younger . at length being taken with the sweetness of the soil ( a great number of their countrey-men flocking over after them , as there were at that time fatal flittings and shiftings of quarters all the world over ) and spurred on with the desire of the chief command and rule , having struck up a league with the picts , they raise a sad and lamentable war against their new entertainers , in whose service they had lately received pay : and to make short , in the end having turned the britans out of their ancestors seats they advanced themselves into an heptarchy of england , so called from them . albeit they pass by various names , yet in very deed they were all of them none other but saxons . a name at that time of a large extent in germany ; which was not , as later geographers make it , bounded with the rivers of the elb , of the rhine and the oder , and with the confines of hessen and duringen , and with the ocean ; but reached as far as into the cimbrian chersonesus now called jutland . it is most likely , that those of them that dwelt by the sea-side , came over by ship into britanny . to wit , at first horsus and hengistus came over out of batavia , or the low countreys , with a great company of saxons along with them ; after that out of jutland the jutes ( for janus douza proves , that the danes under that appellation seised our shores , in the very beginning of the saxon empire : ) out of angela , according to camden about flemsburg a city of sleswick , came the angles ; out of friseland ( procopius is my author ) the frizons . one may without any wrong call them all saxons ; unless fabius quaestor aethelwerd also did his nation injury , by calling them so . he flourished six hundred and fifty years ago , being the grand-child or nephew of king aethelulph , and in his own words discourses , that there was also a people of the saxons all along the sea-coast from the river rhine up to the city donia , which is now commonly called denmark . for it is not proper here to think of denmark in the neighbouring territories of vtrecht and amsterdam , by reason of the narrowness of that tract . those few observes then , which adam of bremen hath copied out of einhard concerning the saxons , forasmuch as our ancient saxons i suppose , are concerned in them , i here set down in this manner and order . chap. xviii . the saxons division of their people into four ranks . no person to marry out of his own rank . what proportion to be observed in marriages according to policy . like to like the old rule . now matrimony is made a matter of money . . the whole nation consists of four different degrees or ranks of men ; to wit , of nobles , of free-men born , of free-men made so , and of servants or slaves . and nithard speaking of his own time , has divided them into ethelings , that is , nobles , frilings , that is , free-men , and lazzos , that is , servants or slaves . it was enacted by laws , that no rank in cases of matrimony do pass the bounds of their own quality ; but that a noble-man marry a noble-woman , a free-man take a free-woman , a bond-man made free be joyned to a bond-woman of the same condition , and a man-servant match with a maid-servant . and thus in the laws of henry duke of saxony , emperour elect , concerning justs and tournaments , when any noble-man had taken a citizen or countrey-woman to wife , he was forbid the exercise of that sport to the third generation , as sebastian munster relates it . the twelve tables also forbad the marriage of the patricii or nobles with the plebeians or commons ; which was afterwards voided and nulled by a law which canuleius made , when he was tribune of the people . for both politicians and lawyers are of opinion , that in marriages we should make use of not an arithmetical proportion , which consists of equals ; nor of a geometrical one , which is made up of likes ; but of a musical one , which proceeds from unlike notes agreeing together in sound . let a noble-man that is decayed in his estate , marry a commoner with a good fortune ; if he be rich and wealthy , let him take one without a fortune : and thus let love , which was begot betwixt wealth and poverty , suite this unlikeness of conditions into a sweet harmony ; and thus this disagreeing agreement will be fit for procreation and breed . for he had need have a good portion of his own , and be nearer to crassus than irus in his fortunes , who , by reason of the many inconveniencies and intolerable charges of women , which bring great dowries , doth , with megadorus in plautus , court a wife without a portion ; according to that which martial sayes to priscus : vxorem quare locupletem ducere nolim quaeritis ? vxori nubere nolo meae . inferior matrona suo sit , prisce , marito : non aliter fiunt foemina virque pares . which at a looser rate of translation take thus , should i a wife with a great fortune wed , you 'l say , i should be swéetly brought to bed . such fortune will my liberty undo . who brings estate , will wear the bréeches too . unhappy match ! where e're the potent bride hath the advantage wholly on her side . blest pairs ! when the men sway , the women truckle , there 's good agréement , as 'twixt thong and buckle . and according to that of the greek poet , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . take , if you 'l be rul'd by me , a wife of your own degrée . but there is little of our age fashioned to the model of this sense : height of birth , vertue , beauty , and whatsoever there was in pandorae of good and fair , do too too often give place to wealth ; and that i may use the comedians word , to a purse crammed with money . and as the merry greek poet sayes , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . to be noble or high-born , is no argument for love : good parts of bréeding lye forlorn ; 't is money only they approve . i come back now to my friend adam . chap. xix . the saxons way of judging the event of war with an enemy . their manner of approving a proposal in council , by clattering their arms. the original of hundred-courts . their dubbing their youth into men. the priviledge of young lads nobly born . the morganheb or wedding-dowry . . they take a prisoner of that nation , with which they are to have a war , by what way soever they can catch him , and chose out one of their own countrey-men ; and putting on each of them the arms of their own countrey , make them two fight together , and judge of the victory , according as the one or the other of them shall overcome . this very thing also tacitus himself hath to whom einhard sends his reader . for though he treat in general of the germans , yet nevertheless without any question , our saxons brought over along with them into this island very many of those things , which are delivered to us by those who have wrote concerning the customs of the germans . among which , take these following . . in councils or publick assemblies , the king or prince , ( i.e. a chief person ) according as every ones age is , according to his nobility , according to his reputation in arms , according to his eloquence , has audience given him , where they use the authority of perswading , rather than the power of commanding . if they dislike what he sayes , they disapprove it with a hum and a rude noise . if they like the proposal , they shake and rustle their spears or partisans together . it is the most honourable kind of assent , to commend the speaker with the clattering of their arms. from hence perhaps arose the ancient right of wapentakes . . there are also chosen at the same councils or meetings , chief persons ( as justices ) to administer law in the several villages and hamlets . each of those have a hundred associates out of the commonalty for their counsel and authority . this is plainly the pourtraict of our hundreds , which we still have throughout the counties of england . . they do nothing of publick or private affair , but with their arms on ; but it is not the custom for any one to wear arms , before the city or community approve of him as sufficient for it . then in the council it self , either some one of the princes or chief persons , or the father of the young man or some kinsman of his in token of respect , give him a shield and a partisan . this with them stands for the ceremony of the gown ; this the first honour of youth arriving at manhood ; before this be done , they seem but a part of the family : but after this is over , they are a part of the common-wealth . the right ancient pattern of dubbing knights , if any where else to be found . julius caesar sayes almost the very same thing of the gauls . they do not suffer their children , to come in publick to them , till they be come to age , that they be able to undergo the duties of war. . a remarkable nobleness of descent , or the high merits of their fathers , procure even to young lads the dignity and esteem of a prince . for , as the philosopher sayes , we owe this regard to vertues , that we respect them , not only whilst present , but also when they are taken away out of our sight ; and in the wise mans account , the glory of parents , is the honour of their children . . the wife doth not bring the husband a portion , but the husband gives the wife a dowry . contrary to what the roman law saith , that custom is still in use with the english , as morgangheb in other places . chap. xx. their severe punishments of adultery , by maiming some parts of the body . the reason of it given by bracton . the like practised by danes and normans . . the husband if his wife playes the whore , cuts off her hair , strips her naked , and turns her out of doors in presence of her kindred , and drives her through the streets , lashing or beating her as she goes along . they were formerly in this northern part of the world , most severe punishers of adultery , and they had such laws as were — ipsis marti venerique timenda ; that is , such as would put mars and venus in a trance of fear , amidst their dalliance . king knute ordered , that a wife , who took another passenger on board her than her husband , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . oft times i th' nights away she hies , and into other harbour flyes . ( well speed thee and thine , fair venus ; nor do i willingly bring these ill tidings to thy tender ducklings . ) should have her nose and ears cut off . i remember , antinous in homer threatens irus with the chopping off his nose , ears and privities ; and vlysses inflicts that very punishment upon his goat-herd melanthius , for his having been too officious in his pimping attendance upon the gallants , that haunted the house in his absence . how any one should deserve this penalty , which so disfigures nature , i do not yet sufficiently understand . heraclides ponticus informs us , that law-makers were wont to maim that part especially which committed the misdemeanour . in testimony of this , he mentions tytius his liver as the shop and work-house of lust ; and it were no hard matter to bring in other more pertinent instances ; and pereant partes , quae nocuerc . saith some poet , the parts that did the hurt , let them e'en suffer for 't . however it was not melanthius his ears , and by no means his nose that offended ; no nor the good wives neither that commits the fact : as martial the merry wag tells a certain husband , quis tibi persuasit nares abscindere moecho ? non hâc peccata est parte , marite , tibi . that is , with modesty to render it , what made thee , angry man , to cut the nose of him , that went to rut ? 't was not that part , that did th' offence : therefore to punish that , what sense ? but who doth not see , that a woman hath no other parts of her body so lyable to maiming or cutting off ? both those parts make much for the setting her off ; nor are there any others in the whole outward frame of the microcosm , which being cut off , do either more disparage beauty , or withal less afflict the animal vertue , as they call it , by which life is maintain'd . now for those , who of old time did unluckily , that is , without the favour of those heathen gods prema and mutinus , to whose service they were so addicted , offer violence to untainted chastity ; the loss of members did await the lust of such persons , . that there might be member for member ( they are the words of henry bracton , a very ancient writer of our law , and they are clear testimonies , that the english have practised the law of like for like ) quia virgo , cùm corrumpitur , membrum amittit , & ideò corruptor puniatur in eo in quo deliquit : oculos igitur amittat propter aspectum decoris , quo virginem concupivit ; amittat & testiculos , qui calorem stupri induxerunt so long ago , aut linguam aut oculos aut quae tibi membra pudorem abstulerant , ferro rapiam . sayes progne to her sister philomele , speaking of the filthy villain tereus , who had ravished her , i 'le cut out his eyes or tongue , or those parts which did thée the wrong . and plautus in his play called paenulus , sy. facio quod manifesto moechi haud ferme solent . mi. ruid id est ? sy. refero vasa salva . i remember i have read that jeoffry de millers a nobleman of norfolk , for having inticed the daughter of john briton to an assignation , and ingaged her with venereal pledges ; being betrayed and trepann'd by the baggage , underwent this execution ; and suffered besides , whatsoever a fathers fury in such a case would prompt him to do : but withal , that king henry the third was grievously offended at it , dis-inherited briton , banished him , and gave order by proclamation , that no one should presume , unless it were in his wives case , to do the like . but these passages are of later date , and since the normans time and from them ; unless you will bring hither that which we meet with in alured's law concerning a man and a maid-servant . from whence we slide back again to tacitus . chap. xxi . the manner of inheriting among them . of deadly feuds . of wergild or head-mony for murder . the nature of country-tenures and knights fees. . every ones children are their heirs and successors , and there was no will to be . nor was it lawful with us down to our grandfathers time , to dispose of country farms or estates by will , unless it were in some burroughs , that had a peculiar right and priviledge of their own . if there be no children , then , says he , the next of kin shall inherit ; brethren , or uncles by the fathers or mothers side . those of the ascending line are excluded from inheritances , and here appears the preference of the fathers side : a law at this very day usual with the english. . to undertake the enmities rather than the friendships , whether of ones father or kinsman , is more necessary . capital enmities , which they call deadly feuds , are well known to our northern people . nor do they hold on never to be appeased : for even murder is expiated by a certain number of some head of cattel , and the whole family of the murdered person receives satisfaction . murders formerly were bought off with head-mony called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; though one had killed a nobleman , nay the king himself , as we may see in athelstan's constitutions : but good manners , i suppose , have prevailed above laws . . the lord imposes upon his tenant a certain quantity of corn or cattel , or clothes . we see here clearly enough the nature of country land-holders , fees or tenures . as to military or knights fees , give me leave to set that down too . dionysius halicarnasseus gives us a very ancient draught and model of them in the trojans and aborigines : florus in the cymbrians , and lampridius in alexander severus . both the northern people and the italians do owe them to the huns and lombards ; but these later according to a more modern form . let these things suffice out of cornelius tacitus , which belong to this head. chap. xxii . since the return of christianity into the island , king ethelbert's law against sacriledge . thieves formerly amerced in cattel . a blot upon theodred the good , bishop of london , for hanging thieves . the country called engelond by order of king egbert , and why so called . the laws of king ina , alfred , ethelred , &c. are still to be met with in saxon. those of edward the confessor , and king knute the dane , were put forth by mr. lambard in his archaeonomia . before that the christian doctrine had driven out and banished the saxon idolatry , all these things i have hitherto been speaking of , were in use . ethelbert ( he that was the first king , not only of kent , but of all england , except northumberland ) having been baptized by austin the monk , the apostle , as some call him , of the english ) amongst other good things which by counsel and grant he did to his nation , ( 't is venerable bede speaks these words ) he did also with the advice of wise men , appoint for his peoples use the orders of their proceedings at law , according to the examples of the romans . which having been written in the english tongue ( says he ) are hitherto , or to this time kept and observed by them . among which orders or decrees he set down in the first place , after what manner such an one should make amends , who should convey away by stealth any of those things that belonged to the church , or to a bishop , or to the rest of the orders . in the laws of some that came after him , as those of king alured ( who cull'd out of ethelbert's acts to make up his own ) and those of king athelstan , thieves make satisfaction with mony ; accordingly as tacitus says of the germans , that for lighter offences those that were convicted are at the rate of their penalties amerced such a number of horses or other cattel . for , as festus hath it , before brass and silver were coyned , by ancient custom they were fined for their faults so much cattel : but those who medled with any thing sacred , we read had that hand cut off with which they committed the theft . well! but am i mistaken , or was sacriledge even in the time of the saxon government punisht as a capital crime ? there is a passage of william of malmsbury , in his book de gestis pontificum , that inclines me to think so . speaking of theodred , the bishop of london when athelstan was king , he says , that he had among the common people got the sirname of theodred the good ; for the eminence of his virtues : only in one thing he fell short , which was rather a mistake than a crime , that those thieves which were taken at st. edmunds , whom the holy martyr had upon their vain attempts tied with an invisible knot ( he means st. edmundsbury in suffolk ; which church these fellows having a design to rob , are said by miracle to have stood still in the place , as if they had been tied with cords : these thieves i say ) were by his means or sufferance given up to the severity of the laws , and condemned to the gallows or gibbet . let not any one think that in this middle age , this gallows or gibbet i spoke of , was any other thing than the roman furca , upon which people hang and are strangled till they die . . egbert king of the west-saxons ( i make use of camdens words ) having gotten in four kingdoms by conquest , and devour'd the other two also in hope , that what had come under the government of one , might likewise go under one name ; and that he might keep up the memory of his own people the angles , he gave order by proclamation , that the heptarchy which the saxons had possest , should be called engelond . john carnotensis writes , that it was so called from the first coming in of the angles ; and another some body says it was so named from hengist a saxon prince . there are a great many laws of king ina , alfred , edward , athelstan , edmund , edgar , ethelred , and knute the dane , written in the saxon language ; which have lasted till these very times . for king knute gave order ( 't is william of malmsbury speaks ) that all the laws which had been made by former kings , and especially by his predecessor ethelred , should under pain of his displeasure and a fine , be constantly observed : for the keeping of which , even now in the time of those who are called the good , people swear in the name of king edward ; not that he appointed them , but that he observed them . the laws of edward , who for his piety has the sirname of confessor , are in readers hands . these of the confessor were in latin ; those others of knute were not long since put into latin by william lambard a learned man , and one very well vers'd in antiquity ; who has recovered them both , and published the saxon original with his translation over against it , printed by john day at london , anno . under the title of archaeonomia , or a book concerning the ancient laws of the english. may he have a good harvest of it as he deserves . from historians let us borrow some other helps for this service . chap. xxiii . king alfred divides england into countyes or shires , and into hundreds and tythings . the original of decenna or court-leet , friburg , and mainpast . forms of law , how people were to answer for those whom they had in borgh or mainpast . . ingulph the abbot of crowland , writing of king alfred says : that he was the first of all that changed the villages or lordships and provinces of all england into counties or shires . before that it was reckoned and divided according to the number of hides or plough-lands by little districts or quarters . he divided the counties into hundreds and tythings ; ( it was long before that honorius , arch-bishop of canterbury , had parted the country into parishes ; to wit , anno . ) that every native home-born lawful man , might be in some hundred and tything ( i mean whosoever was ●ull twelve years of age ) and if any one should be suspected of larceny or thest , he might in his own hundred or ward , being either condemned or giving security ( in some manuscripts it is being acquitted ) he might either incur or avoid the deserved penalty . william of malmsbury adds to this , that he that could not find security was afraid of the severity of the laws ; and if any guilty person , either before his giving security or after , should make his escape , all of that hundred and tything should incur the kings fine . here we have the original of decenna or a court-leet , of friburg , and perhaps of mainpast : which things though grown out of use in the present age ; yet are very often mentioned , not only in the confessors laws , but also in bracton and in other records of our law. what decenna was , the word it self does almost shew : and ingulph makes out , that is , a dousin or courtleet . friburg or borgh signifies a surety ; for fri is all one as free . he who passes his word for anothers good behaviour , or good a bearing , and is become his security ; is said to have such a one in his borgh : being ingaged upon this account to the government , to answer for him if he misbehave himself . and hence it is , that our people in the country call those that live near them , or as i may say at the next door , neighbours : when yet those that would find out the reason why the people of liege in the low countries are called eburones , do understand that burgh , which is the same as borgh , to stand for a neighbour ; and this is plainly affirmed by pontus heuterus , in other originations of the like kind . manupastus is the same thing as a family : as if one would say , fed by hand . just in the like sence julius pollux , in greek terms a master of a family , trophimos ; that is , the feeder of it . that the rights of friburg and manupast were in use with the english some five or six generations ago , is manifest . curio a priest is fined by edward the third , because there had been one of his family a murderer . and the ancient sheets concerning the progress or survey of kent under edward the second , do give some light this way . ralph a milner of sandon , and roger a boy of the said ralph in borgh of * twicham ; ( critick whoever you are , i would not have you to laugh at this home-spun dialect ) came by night to the mill of harghes , and then and there murdered william the milner ; and carried away his goods and chattels and presently fled : it is not known whither they are gone , and the jury mistrusts them the said ralph and roger concerning the death of the aforesaid william ; therefore let them be driven out and out-lawed . they had no chattels , but the aforesaid ralph was in borgh of simon godwin of twicham , who at present has him not ; and therefore lies at mercy : and roger was not in borgh , but was of the mainpast of robert arch-bishop of canterbury deceased ; there being no engleshire presented , the verdit is , the murder upon the hundred . the first discoverer of it and three neighbours are since dead ; and thomas broks , one of the neighbours , comes and is not mistrusted ; and the villages of wimesbugewelle and egestoun did not come fully to the coroners inquest and are therefore at mercy . and about the same time , solomon rois of ickham came to the house of alice the daughter of dennis whenes , and beat her and struck her upon the belly with a staff ; so that she dyed presently . and the foresaid solomon presently fled , and the jury mistrust him concerning the death aforesaid ; therefore let him be driven out and be outlawed . he had no chattels , nor was he in borgh because a vagrant : the verdit , the murder lies upon the hundred . &c. and according to this form more such instances . but let it suffice to have hinted at these things , adding out of henry bracton ; if out of frank-pledge an offender be received in any village , the village shall be at mercy ; unless he that fled be such an one , that he ought not to be in leet and frank-pledge ; as nobles , knights , and their parents ( their eldest sons it is in the yearly records of law in edward the first 's time ; and we may take in daughters too ) a clergy-man , a freeman , ( i fear this word has crept in ) and the like , according to the custom of the country ; and in which case he , of whose family and mainpast they were , shall be bound in some parts , and shall answer for them ; unless the custom of the country be otherways , that he ought not to answer for his mainpast , as it is in the county of hertford , where a man does not answer for his mainpast for any offence , unless he return after felony , or he receive him after the offence committed , as in the circuit of m. de pateshull in the county of hertford , in such a year of king henry the fifth . in sooth these usages do partly remain in our tythings and hundreds , not at all hitherto repealed or worn out of fashion . chap. xxiv . king alfred first appointed sheriffs . by duns scotus his advice , he gave order for the breeding up of youth in learning . by the way , what a hide of land is . king edgar's law for drinking . prelates investiture by the kings ring and staff. king knute's law against any english-man that should kill a dane , hence englescyre . the manner of subscribing and sealing till edward the confessor's time . king harald's law that no welch-man should come on this side offa's dike with a weapon . . the governors of provinces who before were styled deputy-lieutenants ( we return to ingulph and king alfred ) he divided into two offices ; that is , into judges , whom we now call justices , and into sheriffs , who do still retain the same name . away then with polydore virgil , who fetches the first sheriffs from the norman conqueror . . john scot erigena advised the king , that he would have his subjects instructed in good letters ; and that to that end he would by his edict take care of that which might be for the benefit of learning . whereupon he gave strict order to all freemen of the whole kingdom , who did at least possess two hides of land , that they should hold and keep their children till the time of fifteen years of their age , to learning ; and should in the mean time diligently instruct them to know god. a hide of land , that i may note it once for all , and a plough-land ( that is as much land as can be well turned up and tilled with one plough every year ) are read as synonymous terms of the same sence , in huntingdon , matthew paris , thomas walsingham ; and expresly in a very old charter of dunstan . although some take a hide for an hundred acres , and others otherwise ; do thou , if thou hadst rather so do , fansie it to be as much ground as one can compass about with a bull-hide cut into thongs , as queen dido did at carthage : there are some who are not unwilling to have it so understood . . king edgar like a king of good fellows , or master of revels , made a law for drinking . he gave order that studs or knobs of silver or gold ( so malmsbury tells us ) should be fastned to the sides of their cups or drinking vessels , that when every one knew his mark or boundary , he should out of modesty , not either himself covet or force another to desire more than his stint . this is the only law before the first parliament under king james , has been made against those swill-bowls , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , swabbers of drunken feasts and lusty rowers , in full brimm'd rummers that do ply their oars . who by their carowses ( tipling up nestor's years , as if they were celebrating the goddess anna perenna ) do at the same time drink others healths , and mischief and spoil their own and the publick . . there was no choice of prelates ( these are the words of ingulph again ) that was merely free and canonical ; but the court conferred all dignities , as well of bishops as of abbots , by the kings ring and staff , according to his good pleasure . the election or choice was in the clergy and the monks ; but they desired him whom they had chosen , of the king. edmund , in king ethelred's time , was after this manner made bishop of the holy island on the coast of northumberland : and king edgar in his patent , which he signed to the abby of glastenbury , retained to himself and his heirs , the power of bestowing the pastoral staff to the brother elect. . to as many as king knute retained with him in england ( to wit , to the danes ; for by their hands also was the scepter of this kingdom managed ) it was granted , that they should have a firm peace all over ; so that if any of the english killed any of those men , whom the king had brought along with him ; if he could not clear himself by the judgment of god ( that is , by ordeal ) to wit , by water and burning hot iron , justice should be done upon him : but if he run away and could not be taken , there should be paid for him sixty six marks ; and they were gathered in the village where the party was slain , and therefore because they had not the murderer forth coming ; and if in such village by reason of their poverty , they could not be gathered , then they should be gathered in the hundred , to be paid into the kings treasure . in this manner writes henry bracton , who observes that hence the business of englishshire came into fashion in the inquests of murder . . hand-writings ( i.e. patents and grants ) till edward the confessors time , were confirmed by the subscriptions of faithful persons present ; a thing practised too among the britans in king arthur's time , as john price informs us out of a very ancient book of the church of landaff . those subscriptions were accompanied with golden crosses , and other sacred seals or like stamps . . king harald made a law , that whosoever of the welch should be found with a weapon about him without the bound which he had set them , to wit , offa's dike ; he should have his right hand cut off by the kings officers . this dike our chorographer tells us was cut by offa king of the mercians , and drawn along from the mouth of the river dee to the mouth of the river wye for about eighty miles in length , on purpose to keep the english and welch asunder . chap. xxv . the royal consorts great priviledge of granting . felons estates forfeited to the king. estates granted by the king with three exceptions of expedition , bridge , and castle . the ceremony of the kings presenting a turf at the altar of that church , to which he gave land. such a grant of king ethelbald comprized in old verse . the donations or grants of the royal consort , though not by the kings authority , contrary to what the priviledge of any other wife is , were ratified also in that age , as they were by the roman law : which by the patent of aethelswith , wife to burghred king of the mercians , granted to cuthwuls in the year . hath been long since made out by sir edward coke , lord chief justice of the common pleas : where also king ethelred's ancient charter proves , that the estates of felons ( those i mean who concern themselves in burglaries and robberies ) are forfeited to the king. having already mentioned those hand-writings or grants , which are from one hand and t'other , conveyances of tenure ( the fewel of quarrels ) i have a mind , over and above what has been said , to set down also these remarks , as being to our purpose ; and taken from the saxons . as for instance , that those are most frequent whereby estates are conveyed to be held with the best and fairest right ; yet most commonly these three things excepted , to wit , expedition , repairing of bridges , and building of castles : and that those to whom the grants were made , were very seldom acquitted upon this account . these three exceptions are noted by the term of a three-knotted necessity in an old charter , wherein king cedwalla granted to wilfrid ( the first bishop of shelsey in sussex ) the village of paganham in the said county . for though in the grants of king ethelulph the church be free ( says ingulph ) and there be a concession of all things for the release of our souls , and pardon of our sins to serve god alone without expedition , and building of bridge , and fortifying of castle ; to the intent that the clergy might wholly attend divine service : yet in that publick debate of parliament , in the reign of henry the third , concerning the ancient state , freedom , and government of the english church ; and concerning the hourly exactions of the pope and the leeches , jugglers and decoys of rome , that strolled up and down the country to pick peoples pockets , to the great prejudice of the common-wealth ; they did indeed stand for the priviledge of the church , and produced as witnesses thereof the instruments and grants of kings ; who nevertheless were not so much inclined to countenance that liberty of the church , but that , as matthew paris observes , they always reserved to themselves for the publick advantage of the kingdom , three things ; to wit , expedition , and the repairing or making up of bridge or castle ; that by them they might withstand the incursions of the enemy . and king ethelbald hath this form : i grant that all the monasteries and churches of my kingdom be discharged from publick customs or taxes , works or services , and burdens or payments or attendances , unless it be the building and repairing of castles or bridges , which cannot be released to any one . i take no notice how king ethelred the twelfth perhaps ( but by no means the fifteenth , wherein an historian of ours has blundred ) hath signed the third year of his reign by the term of an olympiad , after the manner of the greek computation or reckoning : as likewise i pass other things of the like kind , which are many times used and practised according to the fancy of the clerks or notaries . however the last words , which are the close of these grants and patents , are not to be slighted . these we may see in that of cedwalla , king of the south-saxons , made to theodore arch-bishop of canterbury , in the year . thus . for a further confirmation of my grant , i cedwalla have laid a turf of the land aforesaid upon the holy altar of my saviour : and with my own hand , being ignorant of letters , have set down and expressed the mark or sign of the holy cross. concerning withred and a turf of land in kent , camden has the same thing ; and king ethelulph is said to have offered his patent , or deed of gift , on the altar of the holy apostle st peter . for a conclusion , i know no reason why i may not set underneath , the verses of an old poet , wherein he hath comprised the instrument or grant of founding an abby , which ethelbald , king of the mercians , gave to kenulph abbot of crowland : verses , i say , but such as were made without apollo's consent or knowledge . istum kenulphum si quis vexaverit anglus , rex condemno mihi cuncta catella sua . inde meis monachis de damnis omnibus ultrà vsque satisfaciat ; carcere clausus erit . adsunt ante deum testes hujus dationis anglorum proceres pontificesque mei . sanctus * guthlacus confessor & anachorita hic jacet , in cujus auribus ista loquor . oret pro nobis sanctissimus iste sacerdos , ad tumbam cujus haec mea dona dedi . which in rhyme dogrel will run much after this hobling rate . if any english vex this kenulph , shall i king condemn to me his chattels all . thenceforth , until my monks he satisfie , for damages , in prison he shall lye . witnesses of this gift here in gods sight are english peers and prelates of my right . saint guthlac confessor and anchoret , lies here , in whose ears these words i speak yet . may he pray for us that most holy priest , at whose tomb these my gifts i have addrest . thus they closed their donations or grants ; thus we our remarks of the saxons , being now to pass to the normans . the second book of the english janus . from the norman conquest , to the death of king henry ii. chap. i. william the conquerour 's title . he bestows lands upon his followers , and brings bishops and abbots under military service . an account of the old english laws , called merchenlage , danelage and westsaxen-lage . he is prevailed upon by the barons , to govern according to king edward's laws , and at s. albans takes his oath so to do . yet some new laws were added to those old ones . william duke of normandy upon pretence of a double right , both that of blood ( inasmuch as emme the mother of edward the confessor , was daughter to richard the first duke of the normans ) and withal that of adoption , having in battel worsted harald the son of godwin earl of kent , obtain'd a large inheritance , and took possession of the royal government over all england . after his inauguration he liberally bestowed the lands and estates of the english upon his fellow-soldiers ; that little which remained ( so saith matthew paris ) he put under the yoke of a perpetual servitude . upon which account , some while since the coming in of the normans , there was not in england except the king himself , any one , who held land by right of free-hold ( as they term it : ) since in sooth one may well call all others to a man only lords in trust of what they had ; as those who by swearing fealty , and doing homage , did perpetually own and acknowledge a superior lord , of whom they held , and by whom they were invested into their estates . all bishopricks and abbacies , which held baronies , and so far forth had freedom from all secular service ( the fore-cited matthew is my author ) he brought them under military service , enrolling every bishoprick and abbacy according to his own pleasure , how many souldiers he would have each of them find him and his successors in time of hostility or war. having thus according to this model ordered the agrarian law for the division and settlement of lands , he resolved to govern his subjects ( we have it from gervase of tilbury ) by laws and ordinances in writing : to which purpose hè proposed also the english laws according to their tripartite or threefold distinction ; that is to say , merchenlage , danlage and westsaxenlage . merchenlage , that is , the law of the mercians ; which was in force in the counties of glocester , worcester , hereford , warwick , oxford , chester , salop and stafford . danlage , that is , the law of the danes ; which bore sway in yorkshire , derby , nottingham , leicester , lincoln , northampton , bedford , buckingham , hertford , essex , middlesex , norfolk , suffolk , cambridge , huntingdon . westsaxenlage , that is , the law of the west-saxons ; to which all the rest of the thirty two counties ( which are all that malmesbury reckons up in ethelred's time ) did belong ; to wit , kent , sussex , surrey , berks , southampton , winton , somerset , dorset and devon. some of these english laws he disliked and laid aside ; others he approved of , and added to them , some from beyond sea out of neustria ( he means normandy , which they did of old , term neustria corruptly , instead of westrich , as being the more western kingdom of the franks , and given by charles the simple to rollo for his daughter gilla her portion ) such of them as seemed most effectual for the preserving of the kingdoms peace . this saith he of tilbury . now this is no rare thing among writers for them to devise , that william the conqueror brought in as it were a clear new face of laws to all intents and purposes . 't is true , this must be acknowledg'd , that he did make some new ones ( part whereof you may see in lambard's archaeonomia , and part of them here subjoyned ) but so however that they take their denomination from the english , rather than from the normans ; although one may truly say , according to what lawyers dispute , that the english empire and government was overthrown by him . that he did more especially affect the laws of the danes ( which were not much unlike to those of the norwegians , to whom william was by his grand-father allied in blood ) i read in the annals of roger hoveden . and that he openly declared , that he would rule by them ; at hearing of which , all the great men of the countrey , who had enacted the english laws , were presently struck into dumps , and did unanimously petition him , that he would permit them to have their own laws and ancient customs ; in which their fathers had lived , and they themselves had been born and bred up in ; forasmuch as it would be very hard for them to take up laws that they knew not , and to give judgement according to them . but the king appearing unwilling and uneasie to be moved , they at length prosecuted their purpose , beseeching him , that for the soul of king edward , who had after his death given up the crown and kingdom to him , and whose the laws were , and not any others that were strangers , he would hearken to them and grant that they might continue under their own countrey laws . whereupon calling a council , he did at the last yield to the request of the barons . from that day forward therefore the laws of king edward , which had before been made and appointed by his grand-father adgar , seeing their authority , were before the rest of the laws of the countrey respected , confirmed and observed all over england . but what then ? doth it follow that all things in william's time were new ? how can a man chuse but believe it ? the abbot of crowland sayes this of it , i have brought with me from london into my monastery the laws of the most righteous king edward , which my renowned lord king william hath by proclamation ordered , under most grievous penalties , to be authentick and perpetual , to be kept inviolably throughout the whole kingdom of england , and hath recommended them to his justices , in the same language wherein they were at first set forth and published . and in the life of fretherick abbot of s. albans you have this account : after many debates , arch-bishop lanfrank being then present ( at berkhamstead in hartfordshire ) the king did for the good of peace , take his oath upon all the reliques of the church of s. alban , and by touching the holy gospels , fretherick the abbot administring the oath , that he would inviolably observe the good and approved ancient laws of the kingdom , which the holy and pious kings of england his predecessors , and especially king edward had appointed . but you will much more wonder at that passage of william le rouille of alençon in his preface to the norman customs . that vulgar chronicle , saith he , which is intitled the chronicle of chronicles , bears witness , that s. edward king of england , was the maker or founder of this custom ; where he speaks of william the bastard duke of normandy , alias king of england , saying , that whereas the foresaid s. edward had no heirs of his own body , he made william heir of the kingdom , who after the defeat and death of harald the usurper of the kingdom , did freely obtain and enjoy the kingdom upon this condition , to wit , that he would keep the laws which had before been made by the fore-mentioned edward ; which edward truly had also given laws to the normans , as having been a long time also brought up himself in normandy . where then , i pray you , is the making of new laws ? why ! without doubt , according to tilbury , we are to think , that together with the ratifying of old laws , there was mingled the making of some new ones : and in this case one may say truly with the poet in his panegyrick : firmatur senium juris , priscamque resumunt canitiem leges , emendanturque vetustae , acceduntque novae . — which in english speaks to this sense ; the laws old age stands firm by royal care , statutes resume their ancient gray hair . old ones are mended with a fresh repair ; and for supply some new ones added are . see here ! we impart unto thee , reader , these new laws , with other things , which thou maist justly look for at my hands in this place . chap. ii. the whole country inrolled in dooms-day book . why that book so called . robert of glocester's verses to prove it . the original of charters and seals from the normans , practised of old among the french. who among the romans had the priviledge of using rings to seal with , and who not . . he caused all england to be described , and inrolled ( a whole company of monks are of equal authority in this business , but we make use of florentius of worcester for our witness at this time ) how much land every one of his barons was possessed of , how many soldiers in fee , how many ploughs , how many villains , how many living creatures or cattel , i , and how much ready mony every one was master of throughout all his kingdom , from the greatest to the least ; and how much revenue or rent every possession or estate was able to yield . that breviary or present state of the kingdom being lodged in the archives for the generality of it , containing intirely all the tenements or tenures of the whole country or land was called dooms-day , as if one would say , the day of doom or judgment . for this reason , saith he of tilbury , we call the same dooms-day book : not that there is in it sentence given concerning any doubtful cases proposed ; but because it is not lawful upon any account , to depart from the doom or judgment aforesaid . reader , if it will not make thy nice stomach wamble , let me bring in here an old fashioned rhyme , which will hardly go down with our dainty finical verse-wrights , of an historical poet robert of glocester : one whom , for his antiquity , i must not slight concerning this book . the k. w. vor to wite the worth of his londe let enqueri streitliche thoru al engelonde , hou moni plou lond , and hou moni hiden also were in everich sire , and wat hii were wurth yereto : and the rents of each toun , and of the waters echone , that wurth , and of woods eke , that there ne bileved none , but that he wist wat hii were wurth of al engelonde , and wite al clene that wurth thereof ich understond and let it write clene inou , and that scrit dude iwis in the tresorie at westminster there it yut is . so that vre kings suth , when hii ransome toke and redy wat folc might give , hii fond there in yor boke . considering how the english language is every day more and more refined , this is but a rude piece , and looks scurvily enough . but yet let us not be unmindful neither , that even the fine trim artifices of our quaint masters of expression , will themselves perhaps one day , in future ages , that shall be more critical , run the same risk of censure , and undergo the like misfortune : and that , multa renascentur quae nunc cecidere , cadentque quae nunc sunt in honore ; — as horace the poet born at venusium , tells us : that is , several words which now are fal'n full low , shall up again to place of honour start ; and words that now in great esteem , i trow , are held , shall shortly with their honour part . . the normans called their writings given under their hand , charters ( i speak this out of ingulph ) and they ordered the confirmation of such charters with an impression of wax , by every ones particular seal , under the testimony and subscription of three or four witnesses standing by . but edward the confessor had also his seal , though that too from normandy . for in his time , as the same writer saith , many of the english began to let slip and lay aside the english fashions , bringing in those of the normans in their stead , and in many things to follow the customs of the franks ; all great persons to speak the french tongue in their courts , looking upon it as a great piece of gentility , to make their charters and writings alamode of france ; and to be ashamed of their own country usages in these and other like cases . nay , and if leland , an eye-witness , may be believed , our great prince arthur had his seal also , which he saith he saw in the church of westminster with this very inscription . patritius . arthurius . britanniae . galliae . germaniae . daciae . imperator . that is , the right noble , arthur , emperor of britanny , france , germany , and transylvania . but that the saxons had this from the normans , is a thing out of all question . their grants or letters patents signed with crosses , and subscribed with witnesses names , do give an undoubted credit and assurance to what i have said . john ross informs us that henry beauclerk was the first that made use of one of wax ; and matthew of canterbury , that edward the first did first hang it at the bottom of his royal writings by way of label ; whereas before , his predecessors fastned it to the left side . such a writing of henry the first in favour of anselm , the last author makes mention of ; and such an one of william's duke of the normans , though a very short one and very small written ; brian twine in his apology for the antiquity of the famous university of oxford ( the great study and support of england , and my ever highly honoured mother ) saith , he had seen in the library of the right honourable my lord lumley . but let a circumcised jew , or who else will for me , believe that story concerning the first seal of wax , and the first fastning of it to the writing : a great many waxen ones of the french peers ( that i may say something of those in wax ) and golden ones of their kings ( to wit , betwixt the years and ) we meet with fashioned like scutcheons or coats of arms in those patterns or copies which francis de rosieres has in his first tome of the pedigree or blazonry of the dukes of lorain , set down by way of preface . nor was it possible that the normans should not have that in use , which had been so anciently practised by the french. let me add this out of the ancient register of abendon : that richard earl of chester ( who flourished in the time of henry the first ) ordered to sign a certain writing with the seal of his mother ermentrude ; seeing that ( being not girt with a soldiers belt , i. e. not yet made knight ) all sorts of letters directed by him , were inclosed with his mothers seal . how ? what is that i hear ? had the knightly dignity and order the singular priviledge , as it was once at rome , to wear gold-rings ? for rings ( as 't is related out of ateius capito ) were especially designed and ingraven for seals : let phoebus , who knows all things , out of his oracle tell us . for ●ervants or slaves ( so says justus lipsius , and remarks it from those that had been dug up in holland ) and common soldiers were allowed iron ones to sign or to seal with ( which therefore flavius vopiscus calls annulos sigillaricios , i. e. seal-rings ) and so your ordinary masters of families had such , with a key hanging at it to seal and lock up their provision and utensils . but , saith ateius of the ancient time , neither was it lawful to have more than one ring , nor for any one to have one neither but for freemen , whom alone trust might become , which is preserved under seal ; and therefore the servants of a family had not the right and priviledge of rings . i come home to our selves now . chap. iii. other ways of granting and conveying estates , by a sword , &c. particularly by a horn. godwin's trick to get boseham of the arch-bishop of canterbury . pleadings in french. the french language and hand when came in fashion . coverfeu-laws against taking of deer , against murder , against rape . . at first many lands and estates were collated or bestowed by bare word of mouth , without writing or charter , only with the lords sword or helmet , or a horn or a cup ; and very many tenements with a spur , with a currycomb , with a bow , and some with an arrow : but these things were in the beginning of the norman reign , in after times this fashion was altered , says ingulph . i , and these things were before the normans government . let king edgar his staff cut in the middle , and given to glastenbury abbey for a testimony of his grant , be also here for a testimony . and our antiquary has it of pusey in berkshire , that those who go by the name of pusey do still hold by a horn , which heretofore had been bestowed upon their ancestors by knute the danish king. in like manner , to the same purpose an old book tells this story : that one vlphus the son of toraldus , turned aside into york , and filled the horn that he was used to drink out of , with wine ; and before the altar upon his bended knees , drinking it , gave away to god and to st. peter , the prince of the apostles , all his lands and revenues . which horn of his , saith camden , we have been told was kept or reserved down to our fathers memory . we may see the conveyance of estate , how easie it was in those days , and clear from the punctilio's of law , and withal how free from the captious malice of those petty-foggers who would intangle titles and find flaws in them , and from the swelling bundles and rolls of parchments now in use . but commend me to godwin earl of kent , who was , to use hegesander's word , too great a 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , catcher at syllables , and as the comedian says , more shifting than a potters wheel : give me ( saith he to the arch-bishop of canterbury ) boseham . the arch-bishop admiring what it was he would be at in that question , saith , i give you boseham . he straight upon the confidence of this deceit , without any more ado entred upon an estate of the arch bishops of that name on the sea-coasts of sussex , as if it had been his own by inheritance : and with the testimony of his people about him , spoke of the arch-bishop before the king as the donor of it , and quietly enjoyed it . those things i spoke of before ( to wit , of sword , horn , &c. ) smell of that way of investing into fees which we meet with in obertus de orto ; but are very unlike to that solemn ceremony which is from ancient time even still used in conveying of an estate and delivering possession , wherein a green turf or the bough of a growing tree is required . . they did so much abhor the english tongue ( 't is the abbot of crowland saith it ) that the laws of the land , and the statutes of the english kings , were handled or pleaded in the french language . for till the thirty sixth year of edward the third , all businesses of law were pleaded in french. that also in schools the rudiments of grammatical institution , were delivered to boys in french and not in english. also that the english way and manner of writing was laid aside , and the french mode was made use of in all charters or instruments and books . indeed it was such a fault to be ignorant in the french , or not to be able to speak it ; that mainly upon this account , in the reign of william rufus , vlstan bishop of worcester was censured as unworthy of his place , and deprived of his dignity , who as to other things according to the simplicity of that age , was scholar enough . the abbot whom i quoted , speaks thus of the french character : the saxon hand was used by all the saxons and mercians in all their hand-writings , till the time of king alfred , who had by french tutors been very well trained up in all literature ; but from the time of the said king , it did by disuse come to be of little account ; and the french hand , because it being more legible and more delightful to sight , had the preheminence , grew more and more every day in vogue and use among all the english. nevertheless however this business went , we are told that in the memory of our fathers , and that by an ancient order , there were lectures of the english-saxon language , read at tavistock abby in devonshire . . that his new kingdom might not be disturbed by riots and disorders in the night , he ordered that at the ringing of a bell ( which they called the curfew-bell ) all the lights and fires should in every little cottage , a little after the dusk of the evening , be put out . . he that should take a deer , or aprum , a boar ( so says huntingdon , but perhaps 't is caprum , a buck ) or a roe , was to have his eyes thrust or plucked out , saith matthew paris . . if any one had slain any one ( 't is huntingdon writes this ) be it upon what cause or occasion soever , he was sentenced to a capital punishment , he was to die for it . . if one had forced any woman ( so i read aliquam any woman , not aliquem any man , as 't is in the common prints ) he was to have his privities cut off . forced her ? i , sure enough ; and perhaps he that lay with a woman with her consent , was notwithstanding that , served in the same kind too . and in this case i would have you hear what that great lawyer albericus gentilis , his opinion is . this i say , saith he , that a man hath a greater injury done him , if the woman were not ravished per force , but were debauched and made willing : because in this case her mind is estranged from her husband ; but in that other , not . chap. iv. sheriffs and j●ries were before this time . th● four terms . judges to act without appeal . justices of peace . the kings payments made at first in provisions . afterwards changed into mony , which the sheriff of each county was to pay in to the exchequer . the constable of dover and warden of the cinque ports why made . a disorder in church-affairs reformed . polydore virgil brings in at this time the first sheriffs of counties , and here places the beginning of juries , or determining of tryals by the judgment of twelve ; but is out in them both . this of juries is convinced by a law of ethelred in lambard's explications of law-terms , and by those irrefragable arguments which the famous sir edward coke brings against it . that other mistake of sheriffs is confuted by what we have formerly noted out of ingulph , and by what we shall hereafter somewhere have occasion to remark . mars being impleaded in the areopagus , the place of judgment at athens , for the murder of halirothius the son of neptune , whom he had slain for ravishing his daughter alcippa ; upon his tryal by twelve gods , was acquitted by six sentences or votes : for if the number were equal and no majority , the person was not condemned but discharged . my meaning why i put in this story , is to shew the most ancient use of this number of twelve in tryals elsewhere , as well as amongst us . an italian might well mistake in a concern of england ; yet take it not ill at my hands , that i have given you this upon his credit . . he appointed that four times every year , there should be kept conventions or meetings for several days , in such place as he himself should give order : in which meetings the judges sitting apart by themselves , should keep court and do justice . these are our four terms . . he appointed other judges , who without appeal should exercise jurisdiction and judgment ; from whom as from the bosom of the prince , all that were ingaged in quarrels , addressing thither , might have right done them , and refer their controversies to them . . he appointed other rulers or magistrates , who might take care to see misdemeanors punished ; these he called justices of peace . now one may well imagine , that this name of office is most certainly of a later date , and a foreign writer is to be excused by those rights which are afforded to guests and strangers ( since acting a busiris his part against them , would be downright barbarous ) i say he is to be excused so far , as not to have his mistakes in the history of the english nation , too heavily charged upon him . . in the primitive state of the kingdom after the conquest ( gervase of tilbury in his dialogue of the exchequer , saith , this is a thing handled down from our forefathers ) the kings had payments made them out of their lands , not in sums of gold or silver , but only in victuals or provisions : out of which the kings house was supplied with necessaries for daily use ; and they who were deputed to this service ( the purveyors ) knew what quantity arose from each several land . but yet as to soldiers pay or donatives , and for other necessaries concerning the pleas of the kingdom , or conventions , as also from cities and castles where they did not exercise husbandry or tillage ; in such instances , payments were made in ready mony . wherefore this institution lasted all the time of william the first , to the time of king henry his son , so that i my self ( gervase flourished in the reign of henry the second ) have seen some people , who did at set times carry from the kings lands , victuals or provisions of food to court. and the officers also of the kings house knew very well , having it upon account , which counties were to send in wheat , which to send in several sorts of flesh , and provender for the horses . these things being paid according to the appointed manner and proportion of every thing , the kings officers reckoned to the sheriffs by reducing it into a sum of pence ; to wit , for a measure of wheat to make bread for a hundred men , one shilling ; for the body of a pasture-fed beef , one shilling ; for a ram or a sheep four pence ; for the allowance of twenty horses likewise four pence : but in process of time , when as the said king was busie in remote parts beyond sea to appease tumults and insurrections ; it so happened , that ready mony was highly necessary for him to supply his occasions . in the mean time , there came in multitudes , a great company of husbandmen with complaints to the kings court , or which troubled him more , they frequently came in his way as he was passing by , holding up their ploughshares , in token that their husbandry was running to decay ; for they were put to a world of trouble , upon occasion of the provisions which they carried from their own quarters through several parts of the kingdom . thereupon the king being moved with their complaints , did by the resolved advice of his lords , appoint throughout the kingdom such persons , as he knew were , for their prudence and discretion , fit for the service . these persons going about , and that they might believe their own eyes , taking a view of the several lands , having made an estimate of the provisions which were paid out of them , they reduced it into a sum of pence . but for the total sum , which arose out of all the lands in one county , they ordered , that the sheriff of that county should be bound to the exchequer : adding this withal , that he should pay it at the scale . now the manner of paying , the tryal of the weight and of the metal by chymical operation , the melter or coyner , and the surveyor of the mint , are more largely handled and explained by my self in some other work of mine . . that he might the more firmly retain kent to himself , that being accounted as it were the key of england ; ( 't is the famous mr. camden tells the story ) he set a constable over dover-castle , and made the same person warden of the cinque ports , according to the old usage of the romans . those are hastings , dover , hith , rumney , and sandwich ; to which are joyned winchelsey and rye as principals , and other little towns as members . . to put the last hand to william , i add out of the archives , this law , not to be accounted among the last or least of his . william , by the grace of god , king of the english , to all counts or earls , viscounts or sheriffs , and to all french born , and english men , who have lands in the bishoprick of remigius , greeting . this remigius was the first who translated the episcopal see from dorchester to lincoln . be it known unto you all , and the rest of my liege subjects , who abide in england ; that i , by the common advice of my arch-bishops , and the rest of the bishops and abbots , and all the princes of my kingdom , have thought fit to order the amendment of the episcopal laws , which have been down to my time , in the kingdom of the angles , not well , nor according to the precepts of the holy canons , ordained or administred : wherefore i do command , and by my royal authority strictly charge ; that no bishop or arch-deacon , do henceforth hold pleas in the hundred concerning episcopal laws ; nor bring any cause which belongs to the government of souls ( i.e. to spiritual affairs ) to the judgment of secular men ; but that whosoever , according to the episcopal laws , shall for what cause or fault soever be summoned , shall come to a place which the bishop shall chuse and name for this purpose ; and there make answer concerning his cause , and do right to god and his bishop , not according to the hundred , but according to the canons and episcopal laws . for in the time of the saxon empire , there were wont to be present at those country meetings ( the hundred courts ) an alderman and a bishop , the one for spirituals , the other for temporals , as appears by king edgar's laws . chap. v. william rufus succeeds . annats now paid to the king. why claimed by the pope . no one to go out of the land without leave . hunting of deer made felony . after the death of william , his second son william sirnamed rvfvs succeeded in his room . all justice of laws ( as florentius of worcester tells us ) was now husht in silence , and causes being put under a vacation without hearing , money alone bore sway among the great ones , ipsaque majestas auro corrupta jacebat . that is ; and majesty it self being brib'd with gold , lay , as a prostitute , expos'd to th' bold . . the right or duty of first-fruits , or , as they are commonly called , the annats , which our kings claimed from vacant abbies and bishopricks , polydor virgil will have to have had its first original from rufus . now the popes of rome laid claim to them anciently ; a sort of tribute , which upon what right it was grounded , the council of basil will inform us , and by what opinion and resolution of divines and lawyers confirmed , francis duarenus in his sacred offices of the church will instruct us . 't is certain , that chronologers make mention , that at his death the bishopricks of canterbury , winchester and salisbury , and twelve monasteries beside , being without prelates and abbots , paid in their revenues to the exchequer . . he forbad by publick edict or proclamation ( sayes the same author ) that any one should go out of england without his leave and passport . we read , that he forbad anselm the arch-bishop , that he should not go to wait upon pope vrban ; but that he comprehended all subjects whatsoever in this his royal order , i confess i have not met with any where in my reading , but in polydor. . he did so severely forbid hunting of deer ( saith william of malmesbury ) that it was felony , and a hanging matter to have taken a stag or buck. chap. vi. henry the first why called beauclerk . his letters of repeal . an order for the relief of lands . what a hereot was . of the marriage of the kings homagers daughter , &c. of an orphans marriage . of the widows dowry . of other homagers the like . coynage-money remitted . of the disposal of estates . the goods of those that dye intestate , now and long since , in the churches jurisdiction ; as also the business of wills. of forfeitures . of misdemeanors . of forests . of the fee de hauberk . king edward's law restored . william , who had by direful fates been shewn to the world , was followed by his brother henry , who for his singular learning , which was to him instead of a royal name , was called beau-clerk . he took care of the common-wealth , by amending and making good what had slipt far aside from the bounds of justice , and by softning with wholsome remedies those new unheard of , and most grievous injuries , which ralph afterwards bishop of durham ( being lord chief justice of the whole kingdom ) plagued the people with . he sends letters of repeal to the high sheriffs , to the intent , that the citizens and people might enjoy their liberty and free rights again . see here a copy of them , as they are set down in matthew paris . henry by the grace of god king of england , to hugh of bockland , high sheriff , and to all his liege people , as well french as english in herefordshire , greeting . know ye , that i through the mercy of god , and by the common advice of the barons of the kingdom of england have been crowned king. and because the kingdom was opprest with unjust exactions , i out of regard to god , and that love which i bear towards you all , do make the holy church of god free , so that i will neither sell it , nor will i put it to farm , nor upon the death of arch-bishop , or bishop , or abbot , will i take any thing of the domain of the church , or of the men thereof , till a successor enter upon it . and all evil customs , wherewith the kingdom of england was unjustly oppressed , i do henceforward take away ; which evil usages i do here in part set down . . if any one of my barons , counts or others that hold of me , shall dye , his heir shall not redeem his land , as he was wont to do in the time of my father , but relieve it with a lawful and due relief . in like manner also shall the homagers or tenants of my barons relieve their lands from their lords with a lawful and just relief . it appears , that in the times of the saxons a hereot was paid to the lord at a tenants death , upon the account of provision for war ( for here in saxon signifies an army : ) and that which in our memory now in french is called a relief ( henry of bracton sayes , 't is an engagement to recognize the lord ) doth bear a resemblance of the ancient hereot . thereupon it is a guess , saith william lambard , that the normans being conquerors , did remit the hereot to the angles whom they had conquered and stripped of all kind of armour , and that for it they exacted money of the poor wretches . to this agrees that which is mentioned in the state of england concerning the nobles of berkshire . a tain or knight of the kings holding of him , did at his death for a relief part with all his arms to the king , and one horse with a saddle and another without a saddle . and if he had hounds or hawks , they were presented to the king , that if he pleased he might take them . and in an ancient sanction of conrade the first , emperour of germany , if a souldier that is tenant or lessee happen to dye , let his heir have the fee , so that he observe the use of the greater vavasors , in giving his horses and arms to the seniors or lords . john mariana takes notice , that the word seniors in the vular languages , spanish , italian and french , signifies lords , and that to have been in use from the time of charlemain's reign . but these things you may have in more plenty from the feudists , those who write concerning tenures . . if any of my barons or other men ( homagers or tenants ) of mine ( i return to king henry's charter ) shall have a mind to give his daughter , or sister , or niece , or kinswoman in marriage , let him speak with me about it . but neither will i take any thing of his for this leave and licence , nor will i hinder him from betrothing her , except he shall have a design of giving her to an enemy of mine . . if upon the death of a baron , or any other homager of mine , there be left a daughter that is an heiress , i will bestow her with the advice of my barons together with her land. . if upon the death of the husband , his wife be left without children , she shall have her dowry and right of marriage , as long as she shall keep her body according to law ; and i will not bestow her , but according to her own liking . and if there be children , either the wife , or some one else near of kin shall be their guardian and trustee of their land , who ought to be just . . i give order , that my homagers do in like manner regulate themselves towards the sons and daughters and wives of their homagers . . the common duty of money or coinage , which was taken through all cities and counties , which was not in the time of king edward , i do utterly forbid that henceforward this be no more done . . if any one of my barons or homagers shall be sick and weak , according as he himself shall give or order any one to give his money , i grant it so to be given ; but if he himself being prevented either by arms or by sickness , hath neither given his money , nor disposed of it to give , then let his wife , or children , or parents , and his lawful homagers for his souls health divide it , as to them shall seem best . and in canutus his laws , let the lord or owner at his own discretion make a just distribution of what he hath to his wife and children and the next of kin . but at this time , and long since , church men have been as it were the distributors and awarders of the goods of such persons as dye intestate , or without making their wills , and every bishop as ordinary in his own diocess , is the chief judge in these cases . john stratford arch-bishop of canterbury saith it , and it is averred in the records of our law , that this jurisdiction also concerning wills , was of old long time ago in an ancient constitution , intrusted to the church by the consent of the king and peers . however , in what kings time this was done , neither does he relate , nor do i any where find , as william lindwood in his provincial acknowledgeth . it is a thing very well known , that after tryal of right , wills were wont to be opened in the ecclesiastical court even in the reign of henry the second ( ralph glanvill is my witness ) contrary to what order was taken in the imperial decrees of the romans . and peradventure it will appear so to have been before glanvill , as he will tell you , if you go to him ▪ although you have , quoted by my self some where , a royal rescript or order to a high sheriff , that he do justly and without delay cause to stand ( i. e. appoint and confirm ) a reasonable share to such an one ; that is , that the legatee may obtain and enjoy his right , what was bequested to him by the sheriffs help . i come back now to my track again . . if any one of my barons or homagers shall make a forfeit , he shall not give a pawn in the scarcity of his money , as he did in the time of my brother or my father , but according to the quality of his forfeiture : nor shall he make amends , as he would have done heretofore in my brothers or fathers time . . if he shall be convicted of perfidiousness or of foul misdemeanors , as his fault shall be , so let him make amends . . the forests by the common advice of my barons , i have kept in mine own hand , in the same manner as my father had them . . to those souldiers or knights who hold and maintain their lands by coats of male ( that is , per fee de hauberke , that they may be ready to attend their lords with habergeons or coats of male compleatly armed cap a pee ) i grant the plough-lands of their domains acquitted from all gelds , and from every proper gift of mine , that , as they are eased from so great a charge and grievance , so they may furnish themselves well with horse and arms , that they may be fit and ready for my service , and for the defence of my realm . . i restore unto you the law of king edward , with other amendments , wherewith my father amended it . those amendments are put forth by lombard . hitherto out of those royal and general letters , directed to all the subjects . chap. vii . his order for restraint of his courtiers . what the punishment of theft . coyners to lose their hands and privy-members . guelding a kind of death . what half-pence and farthings to pass . the right measure of the eln. the kings price set for provisions . . he did by his edict or proclamation , restrain the rapines , thefts , and rogueries of the courtiers ; ordering , that those who were caught in such pranks , should have their eyes with their stones pulled out . this malmesbury supplies us with . but florentius of worcester and roger hoveden give the account , that he punished thieves with death and hanging , otherwise than that pleasant and curious man thomas moor in his vtopia would have his people to be dealt with . yet i am inclined rather to believe malmesbury ; not only upon the authority of the man , in comparison of whose rose-beds ( if you well weigh the learning of that age ) the other pack of writers are but sorry low shrubs ; but also upon the account of a nameless monk ▪ who in his book of the miracles of s. thomas of canterbury , tells us a story of one eilward , a poor mean fellow of kingsweston in berkshire , who being in the reign of king henry the second condemned of theft ( he had it seems stoln a pair of countrey gloves and a whetstone ) was punished by losing his eyes and privities ; who coming with devotion to s. thomas his tomb , got an intire restitution of his disappearing members and faculties , and was as good a man as ever he was . perchance in this he is no witness of infallible credit . let the story of iphis and ianthis , and that of ceneus try masteries with this for the whetstone ; to our purpose the writer is trusty enough . but in the first times of the normans , i perceive , that the halter was the ill consequence of theft . let it be lawful for the abbot of that church , if he chance to come in in the god speed , to acquit an high-way-man or thief from the gallows . they are the words of the patent with which william the conquerour , to expiate the slaughter of harald , consecrated a monastery to s. martin near hastings on the sea-coast of sussex , and priviledged it with choice and singular rights . . against cheats , whom they commonly call coyners ( 't is malmesbury speaks again ) he shewed his particular diligence , permitting no cheating fellow to escape scot-free , without losing his fist or hand , who had been understood to have put tricks upon silly people with the traffick of their falshood . for all that , he who hath tackt a supplement to florentius of worcester , and william gemeticensis give out , that the counterfeiters and imbasers of coin had , over and above those parts cut off , which galen accounts to be the principal instruments for propagating of the kind . to whom hoveden agrees , who writes in the life of henry the first , that coyners by the kings order being taken , had their right h●nds and their privy-members cut off . upon this account sure , that he that was guilty of such a wicked crime , should have no hope left him of posterity , nor the common-wealth be in any further fear of those who draw villainous principles from the loins of those that beget them . now at this very time and in former ages too , this piece of treason was punished with halter and gallows ; and that also of theft not only in england , but almost in all countreys , especially robbery upon the high-way , which is committed by those who lay wait to surprize passengers as they travel along upon one or other side of them ; whence not only in the latin , but in the holy language also , a high-way-man hath his name . and truly among the ancients guelding was lookt upon as a kind of death . the apostles canons give him the character and censure of a manslayer , who cuts off his own privities ( who lives all his life a batchelor , say the talmudists ) and he who cuts off another mans , is in danger of the cornelian law concerning murderers and cut-throats ; and so was it heretofore among the english. . he ordered ( they are hoveden's words ) that no half-penny , which also he commanded should be made round , or farthing also , if it were intire , should be refused . . he corrected the merchants false eln ( so sayes the monk of malmesbury ) applying the measure of his arm , and proposing that to all people over england . . he gave order to the courtiers , in whatsoever cities or villages he were , how much they were to take of the countrey people gratis , and at what price to buy things ; punishing offendors herein either with a great fine of money , or with loss of life . chap. viii . the regality claimed by the pope , but within a while resumed by the king. the coverfeu dispensed with . a subsidy for marrying the kings daughter . the courtesie of england . concerning shipwrack . a tax levied to raise and carry on a war. . anselm arch-bishop of canterbury labours earnestly with the pope and his party , and at length obtains it with much ado , that from that time forward ( you have it in florilegus after other writers ) never any one should be invested with a pastoral staff or a ring into a bishoprick or abbacy by the king , or any lay-person whatsoever in england , ( added out of malmesbury ) retaining however the priviledge of election and regality . there was a sharp bickering about this business betwixt the king and anselm ; and so between the popes paschalis and calixtus and henry about that time emperour . both of them at least pretendedly quit their right ; our king humouring the scene according to the present occasion . for after anselm's death , he did invest rodulphus that came in his room by a ring and a pastoral staff. . he restored the night-torches or lights which william the first had forbidden ; forasmuch as he now had less reason to apprehend any danger from them , the kingdom being in a better and firmer posture . . to make up a portion for mawd the kings daughter , married to henry the emperour , every hide of land paid a tribute of three shillings . here polydore makes his descant . afterward , sayes he , the rest of the kings followed that course of raising portions for the bestowal of their daughters ; so tenacious hath posterity alway been of their own advantages . it is scarce to be doubted , that the right of raising money for the marrying of the lords daughters by way of aid or subsidy upon the tenants or dependants , is of a more ancient original . neither would i fetch it from the mutual engagement of romulus his patrons and clients , or landlords and tenants , or from suetonius his caligula : rather from the old customs of the normans , more ancient than king henry : where that threefold tribute is explained by the name of aid , which the patent granted by king john in favour of publick liberty mentions in these words : i will impose no escuage or aid in our realm , but by the common advice of our realm ; unless it be to ransom our body , and to make our first-born son a soldier or knight , and to marry our eldest daughter once . . some ascribe that law to henry , which lawyers call the courtesie of england ; whereby a man having had a child by his wife , when she dyes , enjoyes her estate for his life . . he made a law , that poor shipwrackt persons should have their goods restored to them , if there were any living creature on ship-board , that escaped drowning . forasmuch as before that time , whatsoever through the misfortune of shipwrack was cast on shoar , was adjudged to the exchequer ; except that the persons who suffered shipwrack and had escaped alive , did themselves within such a time refit and repair the vessel . so the chronicle of the monastery of s. martin de bello . this right is called wreck , or if you will , uareck , of the sea. how agreeable to the law of nations , i trouble not my self to enquire . that more ancient custom , is as it were suitable to the norman usage . now at this time our lawyers ( and that the more modern law of edward the first ) pass judgement according to the more correct copy of king henry . and they reckon it too among the most ancient customs of the kingdom . did therefore king richard order , or did hoveden relate this to no purpose , or without any need ? if one who suffers shipwrack dye in the ship , let his sons or daughters , his brethren or sisters have what he left , according as they can shew and make out that they are his next heirs . or if the deceased have neither sons nor daughters , nor brothers nor sisters , the king is to have his chattels . can one imagine , that this law he made at messina , when he was engaged in war , was calculated only for that time or place ? certainly in the archives there is elsewhere to be met with as much as this . . that he might with a stout army bear the brunt of baldwin earl of flanders and louis king of france , who had conspired , being bound by mutual oaths to one another with the duke of anjou , to take away from king henry by force of arms the dutchy of normandy , he first of all ( t is polydore avers it ) laid a heavy tax upon the people , to carry on the new war ; which thing with the kings that followed after , grew to be a custom . he was the last of the normans of a male descent , and as to the method of our undertaking , here we treat of him last . chap. ix . in king stephen's reign all was to pieces . abundance of castles built . of the priviledge of coining . appeals to the court of rome now set on foot . the roman laws brought in , but disowned . an instance in the wonder-working parliament . as of old , unless the shields were laid up , there was no dancing at weddings ; so except arms be put aside , there is no pleading of laws . that antipathy betwixt arms and laws , england was all over sensible of , if ever at any time , in the reign of k. stephen , count of blois , king henry's nephew by his sister adela . for he did not only break the law and his oath too to get a kingdom , but also being saluted king , by those who perfidiously opposed mawd the right and true heir of king henry , he reigned with an improved wickedness . for he did so strangely and odly chop and change every thing ( it is malmsbury speaks it ) as if he had sworn only for this intent , that he might shew himself to the whole kingdom , a dodger and shammer of his oath . but , as he saith , — perjuros merito perjuria fallunt ? that is , such men as perjuries do make their trade , by their own perjuries most justly are betray'd . they are things of custom to which he swore , and such as whereby former priviledges are ratifed , rather than new ones granted . however , some things there are , that may be worth the transcribing . . castles were frequently raised ( 'tis nubrigensis relates it ) in the several counties by the bandying of parties ; and there were in england in a manner as many kings , or rather as many tyrants , as lords of castles , having severally the stamping of their own coin , and a power of giving law to the subjects after a royal manner . then was the kingdom plainly torn to pieces , and the right of majesty shattered , which gains to it self not the least lustre from stamping of money . though i know very well , that before the normans , in the city of rochester , canterbury , and in other corporations and towns , abbots and bishops had by right of priviledge their stampers and coiners of money . . next to the king , theobald arch bishop of canterbury presided over the council of london ( where there were also present the peers of the realm ) which buzzed with new appeals . for in england ( t is henry of huntington sayes it ) appeals were not in use , till henry bishop of winchester , when he was legate , cruelly intruded them to his own mischief . wherefore what cardinal bellarmin has writ , beginning at the synod of sardis , concerning the no body knows how old time of the universal right of appealing to the pope of rome , does not at all , as to matter of fact , seem to touch upon this kingdom of ours by many and many a fair mile . . in the time of king stephen ( so 't is in the polycraticon of john of salisbury ) the roman laws were banisht the realm , which the ho●se of the right reverend theobald lord primate of britanny had fetcht or sent for over into britanny . besides , it was forbidden by royal proclamation , that no one should retain or keep by him the books . if you understand the laws of the empire ( i rather take them to be the decrees of the popes ) it will not be much amiss , out of the parliament records to adjoyn these things of later date . in the parliament holden by richard of bourdeaux , which is said to have wrought wonders , upon the impeachment of alexander nevil arch-bishop of canterbury , robert uere duke of ireland , michael pole earl of suffolk , thomas duke of glocester , richard earl of arundel , thomas beauchamp earl of warwick , and others , that they being intrusted with the management of the kingdom , by soothing up the easie and youthful temper of the king , did assist one another for their own private interest , more than the publick , well near to the ruine and overthrow of the government it self ; the common lawyers and civilians are consulted with , about the form of drawing up the charge ; which they answer all as one man , was not agreeable to the rule of the laws . but the barons of parliament reply , that they would be tyed up to no rules , nor be led by the punctilioes of the roman law , but would by their own authority pass judgement ; pur ce que la royalme d' angleterre n' estoit devant ces heures , n'y à l' entent de nostre dit seigneur le roy & seigneurs de parlament unque ne serra rules ne gouvernes per la loy civil : that is , inasmuch as the realm of england was not before this time , nor in the intention of our said lord the king and the lords of parliament ever shall be ruled or governed by the civil law. and hereupon the persons impleaded are sentenced to be banished . but here is an end of stephen : he fairly dyed . chap. x. in king henry the seconds time , the castles demolished . a parliament held at clarendon . of the advowson and presentation of churches . estates not to be given to monasteries without the kings leave . clergymen to answer in the kings court. a clergyman convict , out of the churches protection . none to go out of the realm , without the kings leave . this repealed by king john. excommunicate persons to find surety . laymen how to be impleaded in the ecclesiastical court. a lay-jury to swear there , in what case . no homager or officer of the kings to be excommunicated , till he or his justice be acquainted . at length , though late first , henry the son of jeoffry plantagenet , count of anger 's by the empress mawd , came to his grandfatherrs inheritance . having demolished and levelled to the ground , the castles which had , in king stephen's time , been built , to the number of eleven hundred and fifteen ; and having retrieved the right of majesty into its due bounds , he confirmed the laws of his grandfather . moreover , at clarendon in wiltshire , near salisbury , john of oxford being president , by the kings own mandate , there being also present the arch-bishops , bishops , abbots , priors , earls , barons , and peers of the realm , other laws are recognized and passed ; whilst at first those who were for the king on one side , those who were for the pope on the other , with might and main stickle to have it go their way ; these latter pleading , that the secular court of justice did not at all suit with them , upon pretence that they had a priviledge of immunity . but this would not serve their turn ; for such kind of constitutions as we are now setting down , had the vogue . . if any controversie concerning the advowson and presentation of churches , arise betwixt laymen , or betwixt laymen and clergymen , or betwixt clergymen among themselves ; let it be handled and determined in the court of the lord our king. . the churches which are in the kings fee , cannot be given to perpetuity without his assent and concession . even in the saxons times it seems it was not lawful , without the kings favour first obtained , to give away estates to monasteries ; for so the old book of abington says . a servant of king ethelred's called vlfric spot , built the abby of burton in staffordshire , and gave to it all his paternal estate , appraised at seven hundred pounds ; and that this donation might be good in law , he gave king ethelred three hundred marks of gold for his confirmation of it , and to every bishop five marks , and over and above to alfric arch-bishop of canterbury , the village of dumbleton . . clergymen being arighted and accused of any matter whatsoever , having been summoned by the kings justice , let them come into his court , there to make answer to that , of which it shall be thought fit that there answer ought to be made : so that the kings justice send into the court of holy church , to see after what manner the business there shall be handled . . if a clergyman shall be convicted , or shall confess the fact ; the church ought not from thenceforth to give him protection . . it is not lawful for arch-bishops , bishops , and persons of the kingdom , to go out of the realm without leave of our lord the king : and if they do go out , if the king please , they shall give him security , that neither in going , nor in returning , or in making stay , they seek or devise any mischief or damage against our lord the king. whether you refer that writ , we meet with in the register or record , ne exeas regnvm , for subjects not to depart the kingdom to this time or instance , or with polydore virgil to william rufus , or to later times , is no very great matter : nor will it be worth our while , curiously to handle that question : for who , in things of such uncertainty , is able to fetch out the truth ? nor will i abuse my leasure , or spend time about things unapproachable . an sit & hic dubito , sed & hic tamen auguror esse . says the poet in another case : and so say i. whether it be here or no , is a question , i confess : and yet for all that , i trow , here it is too , as i guess . out of king john's great charter , as they call it , you may also compare or make up this repeal of that law in part . let it be lawful henceforward for any one to go out of our realm , and to return safely and securely by land and by water , upon our royal word ; unless in time of war , for some short time , for the common advantage of the kingdom ; excepting those that are imprisoned and out-lawed according to the law of the kingdom , and any people or nation , that are in actual war against us : and merchants , concerning whom let such order be taken , as is afore directed . i return to king henry . . excommunicate persons ought not to give suretiship for the remainder , nor to take an oath ; but only to find surety and pledge , to stand to the judgment of the church , that they may be absolved . . persons of the laity ought not to be accused or impleaded but by certain and legal accusers and witnesses , in the presence of the arch-bishop or bishop ; so that the arch deacon may not lose his right , nor any thing which he ought to have therefrom . . if they be such persons who are in fault , as no one will or dare to accuse ; let the sheriff being thereunto required by him , cause twelve legal men of the voisinage or of the village , to swear before the bishop , that they will manifest or make known the truth of the matter according to their conscience . . let no one who holds of the king in capite , nor any one of the kings officers or servants of his domain , be excommunicated ; nor the lands of any of them be put under an interdict or prohibition ; unless first our lord the king , if he be in the land , be spoke with ; or his justice , if he be out of the land , that they may do right by him : and so that what shall appertain to the kings court , may be determined there ; and as to what shall belong to the ecclesiastical court , it may be sent thither and there treated of . chap. xi . other laws of church affairs . concerning appeals . a suit betwixt a clergyman and a layman , where to be tryed : in what case one , who relates to the king , may be put under an interdict . the difference betwixt that and excommunication . bishops to be present at tryals of criminals , until sentence of death , &c. pass . profits of vacant bishopricks , &c. belong to the king. the next bishop to be chosen in the kings chappel , and to do homage before consecration . deforcements to the bishop , to be righted by the king. and on the contrary , chattels forfeit to the king , not to be detained by the church . pleas of debts whatsoever in the kings court. yeomens sons not to go into orders without the lords leave . . concerning appeals , if at any time there shall be occasion for them , they are to proceed from the arch-deacon to the bishop , and from the bishop to the arch-bishop ; and if the arch-bishop shall be wanting in doing of justice , they must come in the last place to our lord the king ; that by his precept or order , the controversie may be determined in the arch-bishops court , so as that it ought not to proceed any further without the kings assent . this law , long since , the famous sir edward coke made use of , to assert and maintain the kings ecclesiastical jurisdiction , as a thing not of late taken up by him , but anciently to him belonging . . if a claim or suit shall arise betwixt a clergyman and a lay-man , or betwixt a layman and a clergyman , concerning any tenement which the clergyman would draw to the church , and the lay-man to a lay-fee ; it shall by the recognizance of twelve legal men , upon the consideration and advisement of the lord chief justice , be determined , whether the tenement do appertain to alms ( i. e. to the church ) or to lay-estate , before the kings own justice . and if it shall be recognized or adjudged to appertain to alms ; it shall be a plea in the ecclesiastical court : but if to a lay-fee , unless they both avow or avouch the tenement from the same bishop or baron , it shall be a plea in the kings court. but if each of them shall for that fee avouch the same bishop or baron , it shall be a plea in that bishops or barons court ; so that he who was formerly seised , shall not , by reason of the recognizance made , lose the seisin , till it shall by plea be deraigned . . he who shall be of a city , or a castle , or a burrough , or a manner of the kings domain , if he shall be cited by an arch-deacon or a bishop , upon any misdemeanour , upon which he ought to make answer to him , and refuse to satisfie upon their summons or citations ; they may well and lawfully put him under an interdict or prohibition ; but he ought not to be excommunicated . ( by the way ) seasonably remark out of the pontificial law , that that excommunication , they call the greater , removes a man and turns him out from the very communion and fellowship of the faithful ; and that an interdict , as the lesser excommunication , separates a man , and lays him aside only , forbidding him to be present at divine offices , and the use of the sacraments . ) i say he ought not to be excommunicated , before that the kings chief justice of that village or city be spoken with , that he may order him to come to satisfaction : and if the kings justice fail therein , he shall be at the kings mercy , and thereupon or after that the bishop may punish him upon his impleadment , with the justice of the church . . arch-bishops , b●shops , and all persons whatsoever of the kingdom , who hold of the king in capite , and have their possessions from our lord the king in nature of a barony , and thereupon make answer to the kings justices and officers , and perform all rights and customs due to the king as other barons do ; they ought to be present at the tryals of the court of our lord the king with his barons , until the losing of limbs or death , be adjudged to the party tried . . when an arch-bishoprick or bishoprick , or abbacy , or priory of the kings domain shall be void ; it ought to be in his hand , and thereof shall he receive all the profits and issues as belonging to his domain : and when the church is to be provided for , our lord the king is to order some choice persons of the church , and the election is to be made in the kings own chappel , by the assent of our lord the king , and by the advice of those persons of the kingdom , whom he shall call for that purpose ; and there shall the person elect ( saving his order ) before he be consecrated , do homage and fealty to our lord the king , as to his liege lord , for his life and limbs , and for his earthly honour . . if any one of the nobles or peers do deforce to do justice to an arch-bishop , bishop , or arch-deacon , for themselves or those that belong to them ; the king in this case is to do justice . . if peradventure any one shall deforce to the lord the king his right ; the arch-bishop , bishop , and arch-deacon , ought then in that case to do justice ( or to take a course with him ) that he may give the king satisfaction . . the chattels of those who are in the kings forfeit , let not the church or church-yard detain or keep back against the justice of the king ; because they are the kings own , whether they shall be found in churches or without . . pleas of debts which are owing , either with security given , or without giving security , let them be in the kings court. . the sons of yeomen or country people , ought not to be ordained or go into holy orders , without the assent of the lord , of whose land they are known to have been born . chap. xii . the statutes of clarendon mis-reported in matthew paris , amended in quadrilegus . these laws occasioned a quarrel between the king and thomas a becket . witness robert of glocester , whom he calls yumen . the same as rusticks , i. e. villains . why a bishop of dublin called scorch-uillein . villanage before the normans time . i confess there is a great difference between these laws and the statutes of clarendon , put forth in the larger history of matthew paris , i mean those mangled ones ; and in some places , what through great gaps of sence , disjointings of sentences , and misplacings of words , much depraved ones , whose misfortune i ascribe to the carelesness of transcribers . but the latter end of a manuscript book commonly called quadrilegus , ( wherein the life of thomas , arch-bishop of canterbury , is out of four writers , to wit , hubert of boseham , john of salisbury , william of canterbury , and alan , abbot of tewksbury , digested into one volume ) hath holp us to them amended as you may see here , and set to rights . it is none of our business to touch upon those quarrels , which arose upon the account of these laws betwixt the king and thomas of canterbury : our historians do sufficiently declare them . in the mean time , may our poet of glocester have leave to return upon the stage , and may his verses written in ancient dialect , comprising the matter which we have in hand , be favourably entertained . no man ne might thenche the love that there was bitwene the k. h. and the good man s. thomas ; the diuel had enui therto , and fed bitwen them feu , alas , alas thulke stond , vor all to well it greu . uor there had ere ibe kings of luther dede as w. bastard , and his son w. the rede . that luther laws made inou , and held in al the lond the k. nold not beleue the lawes that he fond , ne that his elderne hulde , ne the godeman s. thomas thought that thing age right neuer law nas . ne sothnes and custom mid strength up ihold , and he wist that vre dere lourd in the gospel told that he himselfe was sothnes , and custum nought , theruore luther custumes he nould graent nought . ne the k. nould bileue that is elderne ad ihold , so that conteke sprung bituene them manifold . the k. drou to right law mani luther custume , s. thomas they withsed , and granted some . the lawes that icholle now tell he granted vawe . zuf a yuman hath a sone to clergi idraw he ne sall without is lourdes icrouned nought be uor yuman ne mai nought be made agen is lourds will free . those that are born slaves , or that other sort of servants termed villains , he calls by the name of yumen . we call free-born commoners , alike as servants , as it were with a badg of ignobleness or ungentility , yeomen ; and those who of that number are married men , gommen ; for it was gomman in the old dutch , not goodman , as we vulgarly pronounce it , which signified a married man. words , as i am verily perswaded , made from the latin , homines ; which very word , by ennius and festus , according to the oscan idiom , is written hemones , and in our language , which comes pretty near that spelling of the poet , yeomen . and the etymon or origination of the word it self , is very much confirmed by the opinion of some of our own country lawyers , who take ( but with a mistake ) homines , i. e. men that do homage , and nativos , i. e. born slaves , in ancient pleas to be terms equipollent , and of the same importance . the constitution of clarendon style those rusticks or countrymen , whom he calls yumen ; and rusticks and villains ( those among the english were slaves or servants ) were anciently synonymous words , meaning the same thing . for whereas henry londres , arch bishop of dublin , had treacherously committed to the flames , the charters of his rustick tenants , the free tenants called him , as we read in the annals of ireland , scorch-uillein ; as if one would say , the burner or firer of villains . nor should i think it unseasonable in this place , to take notice of a mistake or oversight of thomas spott , a monk of canterbury ; who writes , that the english , before the norman conquest , knew nothing of private servitude or bondage ; i. e. had no such thing as villanage among them : for he is convinced both by the maid of andover , king edgar's miss , as also by the laws signed and sealed by king ina , and by that donation or grant torald of buk●nhale made to walgate , abbot of crowland ; wherein among other things a great many servants are mentioned , with their whole suits and services . take it also out of the synod of london , anselme being president of it ( since here belike there is mention made of servants ) that no one henceforward presume to use that ungodly practice , which hitherto they were wont in england to do , to sell , or put to sale , men , ( that is , servants ) like brute beasts . but we do not do civilly to interrupt the poet : we must begin again with him ; he once more tunes his pipes . another thing he granted eke as ye mow novise ; yuf a man of holi chirch hath eni lay fee , parson , other what he be , he ssal do therevore kings service that there valth , that is right ne be vorlore , in plaiding and in assise be and in judgement also . bote war man ssal be bilemed , other to deth ido . he granted eke yuf eni man the kings traitor were , and eni man is chateux to holi chirch bere that holi chirch ne solde nought the chateux there let that the k. there other is as is owne is ne wette . uor all that the felon hath the kings it is and eche man mai in holi church is owne take iwis . he granted eke that a chirche of the kings fe in none stede ene and ever ne ssold igiue be as to hous of religion , without the kings leve , and that he other the patron the gift first gave . s. thomas granted well these and other mo and these other he withsede that did him well woe . i. yuf bituene twei leud men were eni striving , other bituene a leud and a clerc , for holi chirch thing as vor vouson of chirch whether shold the chirch giue , the k. wold that in his court the ple ssold be driue ; uor as much as a leud man that the o parti was chanliche was under the k. & under no bishop nas . chap. xiii . the poet gives account which of those laws were granted by thomas a becket , which withstood . lendemen signifies laymen , and more generally all illiterate persons . that which this author of ours calls leudemen , the interpreters of law , both our common and the canon law call laicks , or laymen . for as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. people , as it it is derived by caesar germanicus , upon aratus his phaenomena after pindar , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. from a stone , denotes a hard and promiscuous kind of men ; so the word leudes imports the illiterate herd , the multitude or rabble , and all those who are not taken into holy orders . justus lipsius in his poliorceticks , discourses this at large ; where he searches out the origination of leodium or liege , the chief city of the eburones in the netherlands . as to what concerns our language , john gower and jeoffry chaucer , who were the reformers and improvers of the same in verse , do both make it good . thus jeoffry . no wonder is a leude man to rust if a priest be foule on whom we trust . however , that it signifies an illiterate or unlearned person , as well as one not yet in orders ; what he saith elsewhere , informs us . this every leud uicar and parson can say . and peter of blois , and others , use this expression ; as well laymen as scholars . but let not chaucer take it ill , that here he must give way to our glocester muse. ii. another was that no cl●re , ne bishop nath mo , ne ssolde without kings loue out of the lond go . and that hii ssolde suere up the boke ywis . that hii ne sold purchas no uvel the k. ne none of is . iii. the thrid was yuf eni man in mausing were i brought , and suth come to amendment , ne age were nought that he ne suore ●p the boc , ac borowes find solde to stand to that holy chirch there of him toky wold . iv. the verth was that no man that of the k. huld ought in cheife or in eni servise in mausing were ibrought , bote the wardeins of holy chirch that brought him thereto , the k. sede or is bailifes wat he ad misdo , and loked verst were thei to amendment it bring , and vote hii wolde by their leue do the mausing . v. the vist was , that bishoprikes and abbeis also that vacans were of prelas in the k. hand were ido , and that the k. sold all the land as is owne take , uort at last that him lust eni prelat there make . and than thulke prelat sould in is chapel ichose be . of is clarks which he wuld to such prelace bise . and than wan he were ichose in is chapel right yere , homage he solde him do ar he confirmed were . vi. the sixt was yuf eni play to chapitle were idraw , and eni man made is appele , yuf me dude him unlaw , that to the bishop from ercedeken is appele sold make , and from bishop to arcebissop and suth none other take , and but the ercebisops court to right him wold bring , that he sold from him be cluthe biuore the king. and from the k. non other mo so that attan end plaining of holi chirch to the k. shold wend. and the k. amend solde the ercebissops dede , and be as in the popes stude , and s. thomas it withsede . vii . the seuethe was that plaiding that of det were to yeld wel thoru truth iplight , and nought ihold nere althei thoru truth it were , that ple sold be ibrought biuore the k. and is bailies and to holy chirch nought . viii . the eighth that in the lond citation none nere thoru bull of the pope of rome , and clene bileued were . ix . the nithe was that peters pence that me gadereth manion the pope nere nought on isend , ac the k. echone . x. the tethe was yuf eni clarke as felon were itake , and vor felon iproved and ne might it not forsake , that me sold him verst disordein and suth thoru there law , and thoru judgement of the land hong him other to draw . uor these and vor other mo the godeman s. thomas fleu verst out of england and eke imartred was , uor he sei there nas bote o way other he must stiffe be other holy chirch was isent , that of right was so fre . chap. xiv . the pope absolves thoms a becket from his oath , and damns the laws of clarendon . the king resents it , writes to his sheriffs , orders a seisure . penalties inflicted on kindred . he provides against an interdict from rome . he summons the bishops of london and norwich . an account of peter pence . to the laws of clarendon , which i spoke of , the states of the kingdom ( the baronage ) and with them the arch-bishop of canterbury , took their oaths in solemn manner , calling upon god. there were embassadors sent to pope alexander the third , that there might be that bottom also , that he would further confirm and ratifie them . but he was so far from doing that , that he did not only pretend that they did too much derogate from the priviledge of the clergy , and wholly refuse to give his assent to them ; but also having absolved thomas the arch-bishop , at his own request , from the obligation of that oath he had bound himself with , he condemned them as impious , and such as made against the interest and honour of holy church . king henry , as soon as he heard of it , took it , as it was fit he should , very much in dudgeon ; grievously and most deservedly storming at the insolence of the roman court , and the treachery of the bishop of canterbury . immediately letters were dispatcht to the several sheriffs of the respective counties , that if any clerk or layman in their bayliwicks , should appeal to the court of rome , they should seise him and take him into firm custody ; till the king give order what his pleasure is : and that they should seise into the kings hand , and for his use , all the revenues and possessions of the arch-bishops clerks ; and of all the clerks that are with the arch-bishop ; they should put by way of safe pledge the fathers , mothers , and sisters , nephews and neeces , and their chattels , till the king give order what his pleasure is . i have told the story out of matthew paris . you see in this instance a penalty , where there is no fault : it affects or reaches to their kindred both by marriage and blood ; a thing not unusual in the declension of the roman empire after augustus his time . but let misdemeanors hold or oblige those who are the authors of them ( was the order of arcadius and honorius , emperors , to the lord chief justice eutychianus ) nor let the fear of punishment proceed further than the offence is found . a very usual right among the english , whereby bating the taking away the civil rights of blood and nobility , none of the posterity or family of those who lose their honours , do for the most hainous crimes of their parents , undergo any p●●al●ies . but this was not all , in those letters i mentioned , he added threats also . . if any one shall be found carrying letters or a mandate from the pope , of thomas , arch-bishop of canterbury , containing an interdiction of christian religion in england , let him be seised and kept in hold , and let justice be done upon him without delay , as a traitor against the king and kingdom . this roger of hoveden stands by , ready to witness . . let the bishops of london and norwich be summon'd , that they may be before the kings justices to do right ( i. e. to answer to their charge , and to make satisfaction ) that they have contrary to the statutes of the kingdom , interdicted the land of earl hugh , and have inflicted a sentence of excommunication upon him . this was hugh bigod , earl of norfolk . . ' let st. peters pence be collected , or gathered , and kept safe . those pence were a tribute or alms granted first by ina king of the west-saxons ; yearly at lammas to be gathered from as many as ' had thirty pence ( as we read it in the confessor's laws ) ' of live mony in their house . these were duly , at a set time , paid in , till the time of henry the eighth , when he set the government free from the papal tyranny : about which time polydore virgil was upon that account in england , treasurer , or receiver general . i thought fit to set down an ancient brief account of these pence , out of a rescript of pope gregory to the arch-bishops of canterbury and york , in the time of king edward the second . diocess li. s. d. canterbury london rochester norwich ely lincoln coventry chester winchester exceter worcester hereford bath york salisbury it amounts to three hundred marks and a noble ; that is , two hundred pounds sterling , and six shillings and eight pence . you are not to expect here the murder of thomas a becket , and the story how king henry was purged of the crime , having been absolved upon hard terms . conveniunt cymbae vela minora meae . my little skiff bears not so great a sail. chap. xv. a parliament at northampton . six circuits ordered . a list of the then justices . the jury to be of twelve knights . several sorts of knights . in what cases honorary knights to serve in juries . those who come to parliament by right of peerage , sit as barons . those who come by letters of summons , are styled chevaliers . not long after , the king and the barons meet at northampton . they treat concerning the laws and the administration of justice : at length the kingdom being divided into six provinces or circuits , there are chosen from among the lawyers , some , who in every of those provinces might preside in the seat of justice , commissioned by the name of itinerant justices , or justices in eyre . see here the list and names of those justices out of hoveden . hugh de cressi . walter fitz-robert . robert mantel . for norfolk . suffolk . cambridge . huntington . bedford . buckingham . essex . hertford . hugh de gundeville . william fitz-ralph . william basset . for lincoln . nottingham . darby . stafford . warwick . northampton . leicester . robert fitz-bernard . richard gifford . roger fitz-reinfrai . for kent . surrey . southampton . sussex . barkshire . oxford . william fitz-steeven . bertam de uerdun . turstan eitz-simon . for hereford . glocester . worcester . shropshire . ralph fitz-steeven . william ruffus . gilbert pipard . for wiltshire . dorsetshire . somersetshire . devonshire . cornwall . robert de wals. ralph de glanville . robert pikenot . for york . richmond . lancashire . copland . westmoreland . northumberland . cumberland . these he made to take an oath , that they would themselves , bona fide , in good faith , and without any deceit or trick , ( 't is the same author whose words i make use of ) keep the under-written assizes , and cause them inviolably to be kept by the men of the kingdom . he mentions them under this specious title . the assises of king henry , made at clarendon , and renewed at northampton . . if any one be called to do right ( or be served with a writ ) before the justices of our lord the king , concerning murder , or theft , or robbery , or the receiving and harbouring of those who do any such thing ; or concerning forgery , or wicked setting fire of houses , &c. let him upon the oath of twelve knights of the hundred ; or if there be no knights there , then upon the oath of twelve free and lawful men , and upon the oath of four men out of each village of the hundred , let him go to the ordeal of water , and if he perish , i. e. sink , let him lose one foot . the knights who are wanting here , are perhaps those who hold by knights service , or if you had rather , that hold by fee ; betwixt whom , and those who served in war for wages or pay , which in the books of fees are called solidatae ( the same peradventure as by caesar are termed soldurii , that is , soldiers ; by nicolaus damascenus , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , by our monks , bracton , otho frisingensis , and radevicus , in the camp laws of barbarossa , are styled servientes , that is , serjeants ) there is an apparent difference ; both of them being , placed far below the dignity of those honorary knights , who are called equites aurati . but yet i do very well know , that these honorary knights also were of old time , and are now by a most certain right cal●ed forth to some tryals by jury . to the kings great or grand assise ( i say ) and to a suit of law contested , when a baron of parliament is party on one side , i. e. plaintiff or defendant . to the assise , in that it is the most solemn and honourable way of tryal , and that which puts an utter end to the claim of the party that is cast . to such an unequal suit , that there may be some equality of name or title as to some one , at least , of the judges ( for the jury or twelve men are upon such occasion judges made ) and as to the more honourable of the two parties , whether plaintiff or defendant . for the peers of parliament , who are the greater nobles ( amongst whom by reason of their baronies , arch-bishops and bishops , heretofore a great many abbots ) such as are dukes , marquesses , earls , viscounts , and barons ; who though they be distinguished by order and honorary titles , yet nevertheless they sit in parliament , only as they are barons of the realm . and those who at the kings pleasure are called in by letters of summons , as lawyers term it , are styled chevaliers , not barons . for that of chevalier was a title of dignity ; this of baron anciently rather of wealth , and great estate . which title only such writs of summons bestowed till richard the seconds time , who was the first that by patent made john beauchamp of holt , baron of kiderminster : now both ways are in fashion . chap. xvi . the person convict by ordeal , to quit the realm within forty dayes . why forty dayes allowed . an account of the ordeals by fire and water . lady emme dear'd by going over burning coulters . two sorts of tryal by water . learned conjectures at the rise and reason of these customs . these ordeals , as also that of single combat condemned by the church . . at northampton it was added for the rigour of justice , ( remember what was said in the foregoing chapter ) that he should in like manner lose his right hand or fist with his foot , and forswear the realm , and within forty dayes go out of the kingdom into banishment . ( he had the favour of forty dayes allowed him , so saith bracton , that in the mean time he might get help of his friends to make provision for his passage and exile . ) and if upon the tryal by water he be clean , i. e. innocent , let him find pledges , and remain in the realm , unless he be arighted for murder , or any base felony , by the community or body of the county , and of the legal knights of the countrey , concerning which , if he be arighted in manner aforesaid , although he be clean by the tryal of water ; nevertheless let him quit the realm within forty dayes , and carry away his chattels along with him , saving the right of his lords , and let him forswear the realm at the mercy of our lord the king. here let me say a little concerning the tryal by fire and water , or the ordeals . it is granted , that these were the saxons wayes of tryal , rashly and unadvisedly grounded upon divine miracle . they do more appertain to sacred rites , than to civil customs ; for which reason we past them by in the former book , and this place seemed not unseasonable to put the reader in mind of them . he who is accused , is bound to clear himself ( 't is ralph glanvill writes this ) by the judgement of god , to wit , by hot burning iron , or by water , according to the different condition of men : by burning hot iron , if it be a free-man ; by water , if he be a countrey-man or villain . the party accused did carry in his hand a piece of iron glowing hot , going for the most part two or three steps or paces along , or else with the soles of his feet did walk upon red hot plough-shares or coulters , and those , according to the laws of the franks and lombards , nine in number . the lady emme the confessor's mother being impeached of adultery with aldwin bishop of winton , was wonderfully cleared by treading upon so many , and is famous for it in our histories , being preserved safe from burning , and proved innocent from the crime . there were two sorts of watery ordeal or tryal by water ; to wit , cold or scalding hot . the party was thrown into the cold water , as in some places at this day witches are used : he who did not by little and little sink to the bottom , was condemned as guilty of the crime , as one whom that element , which is the outward sign in the sacrament of regeneration , did not admit into its bosome . as to scalding water , ones arm in that manner thrust in up to the elbow , made a discovery of the truth ; and aelstan a monk of abendon , afterward bishop of shirburn , thrusting in his bare hand into a boiling cauldron , shewed himself with some pride to his abbot . but that they say , that rusticks or vassals only were tryed by water , ( for water is ascribed to the earthly and ignoble nature , fire to the heavenly ; so that from the use of fire peculiar to man , firmianus lactantius hath fetcht an argument for the immortality of the soul ) that this is not altogether so true , is made out by that one example of john , a noble and rich old man , who in the time of king henry the second , when , being charged with the death of his brother the earl of ferrers , he could not acquit himself by the watery tryal , was hang'd on a gallows . whence or by what means both these customs were brought in among christians , 't is none of my business to make an over strait inquiry . i remember that fire among the ancients was accounted purgative ; and there is one in a tragedy of sophocles intitled antigone , who of his own accord profest to king creon , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . — that in his hands be red-hot gads would kéep , and over burning gleads would bare-foot créep . to shew himself innocent as to the burial of polynices . i pass by in silence that pythagorical opinion , which placeth fire in the centre of the universe , where jupiter hath his prison ; which fire some , however the peripateticks stiffly oppose it , would have to be in plain terms the sun , — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . who all things overlooks , and all things hears . yet i shall not omit this , that in the holy bible the great and gracious god hath of a truth discovered himself to mortal conception in the very name of fire , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as a thing agreeable to divinity , as saith john reuchlin ; and that s. paul hath , according to the psalmists mind , stiled the ministers of god , a flame of fire . and indeed to abuse the holy scriptures , by mis-interpreting them , is a custom too ancient and too too common . homer and virgil both sing of — imperjuratam stygiamque paludem , dii cujus jurare timent & fallere numen . that is , — th' unperjur'd stygian lake , whose name the gods do fear in vain to take . we read of the infants of the celts , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . try'd in the streams of sacred flood , whether of right or of base blood ; as it is in the greek epigrams : of the fountains of sardinia , in solinus : of the moist februa , or purifications by water , in ovids fastorum : and of those rivers that fell from heaven , and their most wonderful and hidden natures , among natural philosophers . but most of these things were not known peradventure in our ordeals . yet martin del rio , a man of various reading and exquisite learning , hath in his magical inquiries offered a conjecture , that the tryal by water crept into use from a paltry imitation of the jews cup of jealousie . truth is , a great many instances both of this way of trying by water and of that by fire , are afforded by the histories of the danes , saxons , germans , franks , spaniards , in a word , of the whole christian world. an quia cunctarum concordia semina rerum , sunt duo discordes ignis & vnda dei , junxerunt elementa patres ? was it , saith the poet , 'cause the two diff'ring gods , alwayes at ods , that of water , that of fire , which yet in harmony conspire the seeds of all things fitly joyn'd ; therefore our fathers have these two combin'd . or was it , because that the etymologie of the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 hashamaim , that is , heaven , ( for the heavens themselves were the feigned gods of the gentiles ) some are pleased with the deriving it from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 esh , i. e. fire and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 maim , i. e. water : let some more knowing janus tell you . — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . for my part i shall not this game pursue ; why should i lose my time and labour too ? the superstitions and fopperies , the rites and usages , the lustrations and purifyings , the prayers and litanies , and the solemn preparations ( in consecrating and conjuring the water , &c. ) you have in will. lambard in his explications of law terms , and in matthew parker arch-bishop of canterbury in his antiquities of the brittish church . both of them together , with that other of single combat or duel ( for that also was reckoned among the ordeals ) were judged by the church of rome to be impious customs ; and it is long since that they have been laid aside , and not put in practice among the common ordinary wayes of peoples purging and clearing themselves . well , now let me come back to my own country again , and return to northampton . chap. xvii . other laws : of entertaining of strangers . an uncuth , , a gust , a hogenhine ; what of him who confesseth the murder , &c. of frank pledge . of an heir under age . of a widows dowry . of taking the kings fealty . of setting a time to do homage . of the justices duty . of their demolishing of castles . of felons to be put into the sheriffs hands . of those who have departed the realm . . let it be lawful for no man , neither in borough nor in village or place of entertainment , to have or keep in his house , beyond one night , any stranger , whom he will not hold to right , ( that is , answer for his good behaviour ) unless the person entertain'd shall have a reasonable essoin or excuse , which the master or host of the house is to shew to his neighbours ; and when the guest departs , let him depart in presence of the neighbours , and in the day time . hither belongs that of bracton . he may be said to be of ones family , who shall have lodged with another for the space of three nights ; in that the first night he may be called uncuth , i. e. unknown , a stranger ; but the second night gust , i.e. a guest or lodger ; the third night hogenhine ( i read hawan man ) i. e. in greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , in latin familiaris , one of the family . . if any one shall be seised for murder , or for theft , or robbery , or forgery , and be knowing thereof , ( i. e. shall confess it ) or for any other felony which he shall have done , before the provost ( the master or bailiff of the hundred or borough , and before lawful men , he cannot deny it afterwards before the justices . and if the same person without seisin ( with seisin in this place is the same as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , as we commonly say in our language , taken with the manner ) shall recognize or acknowledge any thing of this nature before them , this also in like manner he shall not be able to deny before the justices . . if any one shall dye holding in frank pledge ( i. e. having a free tenure ) let his heirs remain in such seisin , as their father had on the day he was alive and dyed , of his fee , and let them have his chattels , out of which they may make also the devise or partition of the deceased , ( that is , the sharing of his goods according to his will ) and afterwards may require of their lord , and do for their relief and other things , which they ought to do as touching their fee ( i. e. in order to their entring upon the estate . ) . if the heir be under age , let the lord of the fee take his homage , and have him in custody or keeping for as long time as he ought ; let the other lords , if there be more of them , take his homage , and let him do to them that which he ought to do . . let the wife of the deceased have her dowry , and that part of his chattels , which of right comes to her . in former times peradventure it was a like generally practised by the english , that the wife and children should have each their lawful thirds of the estate ; ( each of them , i say , if they were in being ; but half to the wife , if there were no issue ; and as much to the children , if the wife did not survive her husband : ) as it was practised by the romans of old according to the falcidian law ▪ and of later time by the novells of justinian , that they should have their quarter-part . for i see that those of normandy , of arras , of ireland , people that lay round about them , had the same custom . of this you are to see glanvill , bracton , the register of briefs or writs , and william lindwood , beside the records or yearly reports of our law. . let the justices take the fealties of our lord the king before the close of easter , and at furthest before the close of pentecost ; namely , of all earls , barons , knights and free-holders , and even of rusticks or vassals , such as have a mind to stay in the realm ; and he who will not do fealty , let him be taken into custody as an enemy of our lord the king. . the justices have also this to give in charge , that all those , who have not as yet done their homage and allegiance to our lord the king , do at a term of time ; which they shall name to them , come in and do homage and allegiance to the king as to their liege lord. . let the justices do all acts of justice and rights belonging to our lord the king by a writ of our lord the king , or of them who shall be in his place or stead , as to a half-knights fee and under ; ( a knights fee in an old book , which pretends to more antiquity by far than it ought , concerning the manner of holding parliaments , is said to be twenty pounds worth of land in yearly revenue , but the number prefixt before the red book of the exchequer goes at the rate of six hundred and eighty acres : ) unless the complaint be of that great concern , that it cannot be determined without our lord the king , or of that nature that the justices by reason of their own doubting refer it to him , or to those who shall be in his place and stead . nevertheless let them to the utmost of their ability intend and endeavour the service and advantage of our lord the king. . let the justices provide and take care , that the castles already demolisht , be utterly demolished , and that those that are to be demolished , be well levelled to the ground . and if they shall not do this , our lord the king may please to have the judgement of his court against them , as against those who shew contempt of his precept . . a thief or robber , as soon as he is taken , let him be put into the sheriffs hands to be kept in safe custody ; and if the sheriff shall be out of the way , let him be carried or brought to the next constable of a castle , and let him have him in custody , until he deliver him up to the sheriff . . let the justices according to the custom of the land , cause inquiry to be made of those , who have departed or gone out of the realm . and if they shall refuse to return within a term of time that shall be named , and to stand to right in the kings court ( i. e. to make their appearance , and there to answer , if any thing shall be brought in against them ) let them after that be outlawed , and the names of the outlaws be brought at easter and at the feast of st. michael to the exchequer , and from thence be sent to our lord the king. these laws were agreed upon at northampton . chap. xviii . some laws in favour of the clergy . of forfeitures on the account of forest or hunting . of knights fees . who to bear arms , and what arms. arms not to be alienated . no jew to bear arms. arms not to be carryed out of england . rich men under suspicion to clear themselves by oath . who allowed to swear against a free-man . timber for building of ships not to be carryed out of england . none but free-men to bear arms. free-men who . rusticks or villains not such . . that henceforth a clergy-man be not dragg'd and drawn before a secular judge personally for any crime or transgression , unless it be for forest or a lay-fee , out of which a lay-service is due to the king , or to some other secular lord. this priviledge of the clergy the king granted to hugh the popes cardinal legate , by the title of s. michael à petra , who arrived here on purpose to advance the popish interest . . furthermore , that arch-bishopricks , bishopricks or abbacies be not held in the kings hand above a year , unless there be an evident cause , or an urgent necessity for it . . that the murderers or slayers of clergy-men being convicted , or having confest before a justice or judge of the realm , be punished in the presence of the bishop . . that clergy-men be not obliged to make duel : i. e. not to clear themselves , as others upon some occasion did , by single combat . . he ordained at woodstock ( we transcribe these words out of hoveden ) that whosoever should make a forfeit to him concerning his forest , or his hunting once , he should be tyed to find safe pledges or sureties ; and if he should make a second forfeit , in like manner safe pledges should be taken of him ; but if the same person should forfeit the third time , then for his third forfeit , no pledges should be taken , but the proper body of him who made the forfeit . moreover , we meet with these military laws , or laws of knights fees , made for tenants and other people of the common sort . . he who hath one knights fee ( 't is the aforesaid hoveden speaks ) let him have an habergeon or coat of male , and a helmet or head-piece and a buckler or target and a lance : and let every knight have so many habergeons , and helmets , and targets , and lances , as he shall have knights fees in his demeans . . whatsoever free-holder that is a lay-man , shall have in chattel or in rent and revenue to the value of sixteen marks , let him have a coat of male , and a head-piece , and a buckler , and a lance. . whatsoever lay-person being a free-man , shall have in chattel to the value of ten marks , let him have a little habergeon , or coat of male , and a capelet of iron , and a lance. . let all burghers or towns-men of a corporation , and the whole communities of free-men have a wambais , and a capelet of iron , and a lance. . let no one , after he hath once had these arms , sell them , nor pawn them , nor lend them , nor by any other way alienate them from himself , or part with them : nor let his lord alienate them by any manner of way from his man ( i. e. his tenant that holds under him ) neither by forfeit , nor by gift , nor by pledge , nor by any other way . . if any one shall dye having these arms , let them remain to his heir ; and if the heir be not of such estate or age , that he may use the arms , if there shall be need , let that person who shall have them ( the heir ) in custody , have likewise the keeping of the arms , and let him find a man , who may use the arms in the service of our lord the king , if there shall be need , until the heir shall be of such estate , that he may bear arms , and then let him have them . . whatsoever burgher shall have more arms , than it shall behove him to have , according to this assize , let him sell them , or give them away , or so dispose of them from himself to some other man , who may retain them in england in the service of our lord the king. . let no one of them keep by him more arms , than it shall behove him according to this assize to have . . let no jew keep in his possession a coat of male or an habergeon , but let him sell them , or give them , or in some other manner put them away , in that wise that they may remain in the service of the king of england . . let no man bear or carry arms out of england , unless it be by special order of our lord the king ; nor let any one sell arms to any one , who may carry them from england ; nor let merchant or other carry or convey them from england . . they who are suspected by reason of their wealth or great estate , do free or acquit themselves by giving their oaths . the justices have power or jurisdiction given them in the case for this purpose . if there shall be any , who shall not comply with them ( the justices ) the king shall take himself to the members or limbs of such persons , and shall by no means take from them their lands or chattels . . let no one swear upon lawful and free-men , ( i. e. in any matter against or concerning them ) who hath not to the value of sixteen or ten marks in chattel . . let no one , as he loves himself and all that he hath , buy or sell any ship to be brought from england ; nor let any one carry , or cause to be carryed out of england timber for the building of ships . . let no one be received or admitted to the oath of bearing arms ' but a free-man . to bring once for all something concerning a free-man , that may not be beside the purpose . the ancient law of england bestowed that name only upon such persons , as many as , either being honoured by the nobility of their ancestors , or else out of the commonalty being of ingenuous birth ( to wit , of the yeomanry ) did not hold that rustick fee or tenure of villenage ) dedicated to stercutius ( the god of dunghils ) and necessarily charged and burthened with the plough tail , the wain , and the dray , which are the hard countrey-folks arms and implements . to this purpose makes the term of rustick or countrey-man above mentioned in the statutes of clarendon , and the place of glanvill cited in the tryal of ordeal . that the business may be more clearly asserted ; a suit of law being waged in the time of edward the first , betwixt john levin plaintiff and the prior of bernwell defendant ( i have taken the story out of an old manuscript , and the reports of our law , and the collection or body of the royal rescripts do agree to it ) it was then , after several disputes bandied to and fro , and with earnestness enough , decided by the judgement of the court , that those tenants which hold in fee from the ancient domain of the crown , as they call it , are by no means comprehended under the title of free-men ; as those who driving their labour around throughout the year pay their daily vows to ceres the goddess of corn , to pales the goddess of shepherds , and to triptolemus the inventer of husbandry or tillage , and keep a quarter with their gee hoes about their chattel . and now death hath put an end to king henry's reign . and i also having made an end of his laws , so far as histories do help me out , do at the last muster and arm my bands for the guard of my frontiers . i wish they may be of force enough against back-biters . chap. xix . of law-makers . our kings not monarchs at first . several of them in the same county . the druids meeting-place where . under the saxons , laws made in a general assembly of the states . several instances . this assembly under the normans called parliament . the thing taken from a custome of the ancient germans . who had right to sit in parliament . the harmony of the three estates . but however laws are not without their makers and their guardians , or they are to no purpose . it remaineth therefore that we say somewhat in general of them . they are made either by use and custom ( for things that are approved by long use , do obtain the force of law ) or by the sanction and authority of law-givers . of ancient time the semnothei , the kings and the druids were law-givers ; amongst the britans i mean. concerning the semnothei whatsoever doth occurr you had before . the kings were neither monarchs of the whole island , nor so much as of that part of brittany that belonged to the angles . for there were at the same time over the single county of kent four kings ; to wit , cyngetorix , carvilius , taximagulus , and segonax ; and at the same rate in other counties . wherefore we have no reason to make any question , but that part wherein we live , now called england , was governed by several persons , and was subject to an aristocracy : according to what polydore virgil , john twine , david powell and others have informed us . the druids were wont to meet , to explain the laws in being , and to make new ones as occasion required , as is most likely , in some certain place designed for that purpose ; as now at this very time all matters of law go to be decided at spire in germany , at westminster-hall in england , and paris in france . their publick convention or meeting-place was constantly , as julius caesar tells us , in the borders of the carnutes the middle region of all france . some think that a town at eight miles distance from the metropolis of those people commonly called dreux , was designed for that use . whilst the saxons governed , the laws were made in the general assembly of the states or parliament . in the front of king ina's laws ( 't is above eight hundred and eighty years that he first reigned ) we read thus , it ine mid godes gift west-saxna cyning mid getbeat & mid lere cenredes mines fader & hedde & erconwald mine biscops & mid eallum minum , ealdor mannum , & tham yldestan witan mines theode be beodeth , &c. which in our present english speaks thus , i ina by the grace of god king of the west-saxons , by the advice and order of kenred my father , and of hedda and erconwald my bishops , and of all my aldermen , and of the elders and wise men of my people , do command , &c. there are a great many instances of this kind in other places . moreover witlaf and bertulph , who were kings of the mercians near upon eight hundred years ago , do in their instruments under their hands make mention of synods and councils of the prelates and peers convened for the affairs of the kingdom . and an ancient book has this passage of abendon , here was the royal seat , hither when they were to treat of the principal and difficult points of state , and affairs of the kingdom , the people were used to meet and flock together . to this may be added that which malmesbury sayes of king edward in the year of our lord . the king gathered a synod or ●ssembly of the senators of the english nation , over which did preside pleimund arch-bishop of canterbury interpreting expresly the words of the apostolical embassy . these assemblies were termed by the saxons , widdena gemcdes , i. e. meetings of the wise men , and micil sinodes , i. e. the great assemblies . at length we borrowed of the french the name of parliaments , which before the time of henry the first , polydore virgil sayes , were very rarely held . an usage , that not without good reason seems to have come from the ancient germans . so tacitus sayes of them , concerning smaller matters the princes only , concerning things of greater concern , they do all the whole body of them consult ; yet in that manner , that those things also , which it was in the peoples power to determine , were treated of by the princes too . and i have one that hath left it in writing , that when there was neither bishop , nor earl , nor baron , yet then kings held their parliaments : and in king arthur's patent to the university of cambridge ( for ye have my leave , if you can find in your heart , to give credit to it , as john key does ) by the counsel and assent of all and singular the prelats and princes of this realm , i decree . there were present at parliaments , about the beginning of the normans times , as many as were invested with thirteen fees of knights service , and a third part of one fee , called baron's , from their large estates : for which reason perhaps john cochleius of mentz , in his epistle dedicatory to our most renowned sir thomas more , prefixt before the chronicle of aurelius cassiodorus , calls him baron of england . but henry the third , the number of them growing over big , ordered by proclamation , that those only should come there , whom he should think fit to summon by writ . these assemblies do now sit in great state , which with a wonderful harmony of the three estates , the king , the lords and the commons , or deputies of the people , are joyned together , to a most firm security of the publick , and are by a very learned man in allusion to that made word in livy , panaetolium from the aetolians , most rightly called pananglium , that is , all england . as in musical instruments and pipes and in singing it self , and in voices ( sayes scipio in tully's books of the common-wealth ) there is a kind of harmony to be kept out of distinct sounds , which learned and skilful ears cannot endure to hear changed and jarring ; and that consort or harmony , from the tuning and ordering of voices most unlike ; yet is rendred agreeing and suitable : so of the highest and middlemost and lowermost states shuffled together , like different sounds , by fair proportion doth a city agree by the consent of persons most unlike ; and that which by musicians in singing is called harmony : that in a city is concord , the straightest and surest bond of safety in every common-wealth , and such as can by no means be without justice . but let this suffice for law-makers . chap. xx. the guardians of the laws , who . in the saxons time seven chief . one of the kings among the heptarchs styled monarch of all england . the office of lord high constable . of lord chancellor , ancient . the lord treasurer . alderman of england , what . why one called healfkoning . aldermen of provinces and graves , the same as counts or earls and viscounts or sheriffs . of the county court , and the court of inquests , called tourn le viscount . when this court kept , and the original of it . i do scarce meet before the saxons times with any guardians of the laws different from these law-makers . in their time they were variously divided , whose neither name nor office are as yet grown out of use . the number is made up , to give you only the heads , by these ; to wit , the king , the lord high constable , the chancellor , the treasurer , the alderman of england , the aldermen of provinces and the graves . those of later date and of meaner notice i pass by , meaning to speak but briefly of the rest . the king was alwayes one amongst the heptarchs or seven rulers , who was accounted ( i have beda to vouch it ) the monarch of all england . ella king of the south-saxons ( so sayes ethelwerd ) was the first that was dignified with so high a title and empire , who was owner of as large a jurisdiction as ecbright ; the second was ceulin king of the west-angles ; the third aethelbrith king of the kentish-men ; the fourth redwald king of the easterlings ; the fifth edwin king of northumberland ; the sixth oswald ; the seventh osweo , oswala's brother ; after whom the eighth was ecbright . his west-saxon kingdom took in the rest for the greatest part . the office of lord high constable , which disappeared in edward duke of buckingham , who in henry the eighth's time lost his head for high-treason , was not seen till the latter end of the saxons . one alfgar staller is reported by richard of ely monk , to have been constable to edward the confessor , and mr. camden mentions a dwelling of his upon this account called plaiffy in the county of middlesex . he of ely sets him out for a great and mighty man in the kingdom . and indeed formerly that magistrate had great power , which was formidable even to kings themselves . they who deny there were any chancellors before the coming in of the normans , are hugely mistaken . nor are they disproved only out of the grant of edward the confessor to the abbot of westminster , which i am beholden to mr. lambard for , at the bottom of which these words are set down : i syward publick notary , instead of rembald the kings majesties chancellor , have written and subscribed this paper ; but also out of ingulph , who makes mention of farketulus , some while after that abbot of crowland , chancellor of king edred , by whose decree and counsel were to be handled & treated whatsoever businesses they were , temporal or spiritual , that did await the judgement of the king ; and being thus treated of by him , might irrefragably stand good . and francis thinn , that learned antiquary has reckoned up several , who have discharged this office ; as turketill to king ethelbald , swithin bishop of winchester to king egbert , vlfin to king athelstan , adulph to king edgar , alsy abbot and prelate of ely to king ethelred . concerning which office and the seals , which the chancellor in old time had the keeping of , i had rather you would consult with camden's tribunals or seats of justice , and those things which john budden at wainfleet doctor of laws has brought out of the archives into his palingenesia , than seek them at my hands . as for treasurers , dunstan was so to king edred , and hugolin to the confessor . but that fifth title of alderman of england , is an unusual one . yet , if i don't mistake my self , he was the chief president in tryals at law , and an officer to keep all quiet at home ; the same as now perhaps is commonly called the lord chief justice of england . this remarkable name i do not meet with , neither in the monkish chronologers , which are to be had at the shops , nor in the records of our laws . but a private history of the abbey of ramsey in huntingdon-shire has given us notice of one ailwins tomb with this inscription , hic . requiescit . ailwinus . incliti . regis . eadgari . cognatus . totius . angliae . aldermannus . et . hujus . sacri . coenobii . miraculosus . fundator . that is , here resteth ailwin kinsman of the renowned king edgar , alderman of all england , and the miraculous founder of this sacred monastery . and by reason of his great authority and favour which he had with the king , by a nick name they called him healfkoning , i. e. half-king . now henry of huntingdon sayes , that tostius earl ( or to use his phrase consul ) of northumberland , and harald sons of godwin earl of kent were justices of the realm . aldermen may aptly be termed by the word senators . those judges did exercise a delegated power throughout the provinces , called counties or shires , and the graves an under-delegated power from them . the word is as much as governours , and is the same thing , as in high dutch grave in landgrave , burgrave , palsgrave , &c. and what amongst some of our own people reev . we shall call them both , as that age did , in a latin term , the one comites , i. e. counts or earls , the other vicecomites , that is , viscounts or sheriffs . the name of count is every where met with amongst the most ancient of the monks , which yet does very often pass into that of duke in the subscription of witnesses . and in the charter of the foundation of chertsey abby in surrey , frithwald stiles himself subregulus , i.e. an under kingling or petty vice-roy to wulpher king of the mercians ; make no question of it , he meant he was a count. a viscount and a vice-lord are more than very like , they are the very same . ingulph sayes it above . and in the last hand-writing of king edred we have , i bingulph vice-lord advised it , i alfer viscount heard it . these counts and viscounts , or earls and sheriffs had in their counties their several courts both for private and for publick matters . for private affairs they had every month a meeting called the county court. let every grave , as we have it in edward the elder 's laws , every fourth week convene and meet the people in assembly : let him do equal right to every one , and determine and put an end to all suits and quarrels , when the appointed days shall come . for publick business king edgar ordered the court of inquests or inquiries , called tourn le uiscount . let a convention or meeting be held twice every year out of every county , at which let the bishop of that diocess , and the senator , ( i. e. the alderman ) be present ; the one to teach the people the laws of god ; the other the laws of the land. what i have set down in william the first at the end of the fourth chapter of this second book , you ought to consider of here again in this place . the inhabitants did not meet at this court of inquests at any season promiscuously and indifferently , but as it is very well known by the use and ancient constitutions of the realm , within a month either after easter , or after michaelmas . in which court , seeing that not only the count , as now a dayes the viscount or sheriff does , but also the bishop did preside ; it does not at all seem difficult to trace the very original of this temporary law. that peradventure was the synod of antioch held in pope julius the first 's time , and acknowledged in the sixth general council held at constantinople . in this latter there are expresly and plainly two councils or meetings of the bishops to be kept every year within three weeks after easter , and about the middle of october , ( if there be any small difference in the time , it can be no great matter of mistake ) . you may help your self to more other things of meaner note out of what has been said before about hundreds , bourghs and the like . and this may serve in brief for the saxons , who were entrusted with the care of their laws . chap. xxi . of the norman earls . their fee. their power of making laws . of the barons , i.e. lords of manours . of the court-baron . it s rise . an instance of it out of hoveden . other offices much alike with the saxons . i shall be briefer concerning the normans , i mean their earls and barons . their counts or earls before the conquest , except those of leicester , and perchance some others , were but officers , and not as yet hereditary . when william bore the sway , they began to have a certain fee and a descent of patrimony ; having together with their title assigned to them a third part of the revenues or rents , which did arise out of the whole county to the exchequer . this custom is clear enough in gervase of tilbury in the case of richard de redueriis made earl of devonshire by henry the first , & jeoffrey de magna villa made earl of essex by mawd the empress . it seems that the saxon earls had the self-same right of sharing with the king. so in doomsday book we find it ; the queen edeua had two parts from ipswich in suffolk , and the earl or count guert the third : and so of norwich , that it paid twenty pound to the king , and to the earl ten pound : so of the revenues of the borough of lewes in sussex , the king had two shares , and the earl the third . and oxford paid for toll and gable , and other customary duties twenty pound a year to the king , besides six quarts of honey , and to earl algar ten pound . to conclude , it appears also that these norman earls or counts had some power of making laws to the people of their counties . for instance , the monk of malmesbury tells us , that the laws of william fitz-osborn earl of hereford remained still in force in the said county , that no souldier for whatsoever offence should pay above seven shillings . the writings and patents of the men of cornwall concerning their stannaries or tinn-mines do prove as much ; nor need i tell the story , how godiva lady to the earl leofrick rid on horse-back through the streets of coventry with her hair disshevelled , all hanging about her at full length , that by this means she might discharge them of those taxes and payments , which the earl had imposed upon them . out of the countreys ( wherein all estates were subject to military service ) the barons had their territories , as we call them mannors ; and in them their courts to call their tenants together , at the end of every three weeks , and to hear and determine their causes . a civilian , one vdalricus zazius , would have the original of these courts among other nations , to have come by way of imitation from romulus his making of lords or patrons , and their clanns or tenants . the use of them at this day is common and ordinarily known . but to shew how it was of old , we will borrow out of hoveden this spark of light . john marshall complained to henry the second , that whereas he had claimed or challenged in the arch-bishops court a piece of land to be held from him by right of inheritance , and had a long time pleaded upon it , he could obtain no justice in the case , and that he had by oath falsified the arch-bishops court , ( that is , proved it to be false by oath , according to the custom of the realm : to whom the arch-bishop made answer , there has been no justice wanting to john in my court ; but he , i know not by whose advice , or whether of his own head , brought in my court a certain toper , and swore upon it , that he went away from my court for default of justice ; and it seemed to the justices of my court , that he did me the injury , by withdrawing in that manner from my court ; seeing it is ordained in your realm , that he who would falsifie anothers court must swear upon the holy gospels . the king not regarding these words , swore , that he would have justice and judgement of him ; and the barons of the kings court did judge him to be in the kings mercy ; and moreover they fined him five hundred pound . as to doing justice in all other cases , and managing of publick affairs , the normans had almost the same names and titles of officers and offices as the saxons had . finis . a brief chronology to attend and assist the history . in the year of the world .   . samothes , if there ever were such a man , bears rule . . brutus makes a descent , ( that is , lands with his trojans ) in cornwall or devonshire . . dunvallo molmutius swayes the scepter . . martia , dowager of king quintilen , is queen regent during the minority of her son sisillius the first . . caius julius caesar arrives at deal on the sea-coast of kent , and territa quaesitis ostendis terga britannis , that is , having inquiry made , after the britans bold , he turn'd his back , 't is said , his courage would not hold : and was the first that discover'd britanny to the romans . in the year of christ .   . claudius caesar emperour sends over aulus plautius with an army as his lieutenant general , and by degrees reduceth the countrey into the form of a roman province . . a colony of veterans or old roman souldiers is sent down to maldon in essex . . britanny is subdued or brought under the yoke by the conduct of junius agricola , in the time of domitian the emperour . . lucius or king lucy was the first christian king. forasmuch as he was of the same standing with pope eleutherius and the emperour commodus . whence it appears , that beda makes others mistake , and is himself mistaken in his wrong account of time in this affair . . the saxons , angles , jutes , danes , frisons , or friselanders arrive here from germany , taurus and felix then consuls , in the one and twentieth year of theodosius the younger . the common or ordinary account of writers sets it down the four hundred forty ninth year : but that great man both for authority and judgement william camden clarenceaux king at arms hath , upon the credit of ancient records , closed this epoch or date of time within that term of years , which i have set in the margin . . king ethelbert the first king of the english saxons , who profest christianity . . king egbert . . king alured or alfred . . king edgar . . canute or king knute the dane . . harold , eldest son to king knute , called for his swiftness harefoot . . edward the confessor , after whom harold son to godwin earl of kent usurp't the throne , where he continued only nine months . . william duke of normandy , after a battel fought upon the plain near hastings , got the dominion or soveraignty of the british island . . william rufus , second son of the conquerour . . henry the first , younger brother to rufus . . king stephen , count of blois in france , nephew to henry by his sister adela . . henry the second , grand-child to henry the first by his daughter mawd the empress , and jeoffrey count of anger 's in france . finis . brief notes upon some of the more difficult passages in the title-page . common and statute law ] so i render jus prophanum , as prophane is opposed to sacred and ecclesiastical , as himself explains the term in his preface out of festus . otherwise it might have been render'd civil law , as relating to civil affairs and the government of state , not medling with the canons and rules of the church ; but that the civil law with us is taken generally in another sense for the imperial law , which however practised in several other nations , hath little to do in england , unless in some particular cases . of english britanny ] that is , that part of britain , which was inhabited by the angles , in latin called anglo-britannia , by us strictly england ; as for distinction , the other part of the island , wales , whither the welsh , the true and ancient britans , were driven by the saxons , is called cambro-britannia , that is , welsh britanny ; and scotland possest by the scots , is in like manner called scoto-britannia , that is scotch-britanny , which now together with england , since the union of the two kingdoms , goes under the name of great britain . in the author's preface . the guardian of my threshold ] so limentinus among the romans was the god of the threshold , qui limentis , i. e. liminibus praeest ; but it may be taken for the officer of the gate , the porter , who gives admission to strangers . in a different character ] accordingly in the latin the author's citations are printed in italick ; which , because they are so frequent , i thought fit rather to notifie by a distinction , as usual , in the margin ; thus , " " intercidona , pilumnus & deverra ] these were heathen deities , to whom they attributed the care of their children , whom else they thought silvanus might , like oberon king of the fairies , surprize or do some other mischief to . in the first book . chap. . pag. . lin . . among the celts and gauls ] who are reckoned for one and the same people ; as for instance , those gauls , who removed into the lesser asia , mixing with the greeks , were called gallo-graeci , but by the greeks were styled 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , whence by contraction , i suppose 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . l. . bellagines , that is , by-laws . ] from by , that is , a village , town or city , and lagen , which in gothish is a law ; so that it signifies such laws , as corporations are govern'd by . the scots call them burlaws , that is , borough-laws . so that bellagines is put for bilagines or burlagines . this kind of laws obtains in courts leet and courts baron , and in other occasions , where the people of the place make their own laws . chap. ii. pag. . l. . adrastia , rhamnusia & nemesis . ] which is all but nemesis the goddess of revenge , called adrastria from king adrastus , who first built her a temple ; and rhamnusia from rhamnus a village in the athenian territory , where she was worshipped . l. . elohim , that is , gods. ] and so judges are properly called according to the original notation of the word , whose root 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 alah , though in hebrew it signifie to curse , yet in the arabick language , a descendent of the hebrew , it betokens to judge . thus 't is said in the psalms , god standeth in the congregation of the gods , and i have said , ye are gods , &c. l. . it subjoins to it the name of god. ] to wit , that name of his 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 el , which signifies a mighty god. in this sense the cedars of god are lofty stately cedars ; and by moses his being fair to god , is meant , that he was exceeding fair . pag. . lin . . not only berecynthia , but also juno , cybele . ] why ! cybele is the very same goddess , who was called berecynthia from berecynthus a hill of phrygia ( as also cybelus was another ) where she was worshipped . and she had several such names given her from the places of her worship , as dindymene , pessinuntia , idaea , phrygia . this then was a slip of our worthy author's memory or his haste . chap. iii. pag. . lin . . not by the number of dayes , but of nights . ] thus in our common reckoning we say a sennight , that is , seven nights ; septinoctium , for what in latin they say septimana , seven mornings ; and a fortnight , that is , fourteen nights . again for sundayes and holy-dayes , the evening , which concludes the fore-going day , is said to be their eve , that is , evening . and the grecians agree with us in setting the night before the day , in that they call the natural day , which is the space of twenty four hours , comprehending day and night , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , night-day , not day-night . chap. iv. pag. . lin . . king phranicus . ] it is so ordinary a matter for historians , when they treat of things at great distance of time , to devise fables of their own , or take them up from others , that i doubt not but this phranicus was designed to give name to france ; whereas it was so called from the franks , who came to plant there out of franconia a countrey of germany , called east-france . l. . with corinus one of the chief of his company . ] from whom cornwall had its name , formerly called in latin corinia or cornavia ( say some ) now cornubia . and possibly if that were so , corinium also or cirencester , a town in glocestershire , and corinus too , the river churne , that runs by it , owe their appellations to the same noble person . l. . new troy , that is , london . ] called also troynovant , and the people about it called trinobantes or trinovantes , from whom also the city it self was styled augusta trinobantum , that is , the royal seat of the new trojans . l. . king belin. ] who gave name to billinsgate , that is , belin's gate , as king lud to ludgate . pag. . lin . . eumerus messenius . ] some such fabulous writer as our sir john mandevil , who tells us of people and countreys , that are no where to be found in the world. chap. vi. pag. . lin . . in the time of brennus and belinus . ] the first of these was general of the gauls , who were called senones , and going into italy with them , sackt rome . there he built the city verona , called by his name brennona ; as he had done brennoburgum now brandenburg in germany . from his prowess and famed exploits , it is supposed that the britans or welsh do to this day call a king brennin . of the other , viz. belinus , some mention hath been made already . chap. vii . pag. . lin . . locrinus , camber and albanactus . ] from the first of these three brethren , to wit , locrinus , it is said , that the welsh call england lhoegr , that falling to the eldest sons share ; from the second camber , that a welsh-man is named cumra , and the countrey cambria ; and from the third albanactus , that scotland , or at least good part of it retains the term of albania , a title still belonging to the king of britain's second brother , the duke of york . though for my part for this last name of albanactus i am somewhat of opinion , that it might be devised by some smattering monk purposely in favour of the trojan story , as much as to say in a mungrel word alba 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 king of alba , a city of italy built by one of aeneas his sons . l. . gavelkind . ] from the saxon gafel or gafol , a debt or tribute , and cyn or kynd , the kindred or children ; or , as mr. lambard , gif eal cyn , i. e. given to all who are next of kin ; or , as vorstegan , give all kind , i. e. give to each child his part . an ancient custom of the saxons , whereby the fathers estate was equally divided amongst his sons ; as it is still amongst the daughters , if there be no sons . it obtains still in several places , especially in kent by the concessions of the conqueror . pag. . lin . . the laws of second venus . ] not having plato by me , nor any other means to inform my self better , i imagine that by the first venus they mean the force of lust and beauty , which doth so naturally incline people to a desire of union and copulation ; and by the second venus consequently is intended that prudential reason , by which men according to wholsome and equal laws easily suffer themselves to be gathered into societies , and to comply with one another in mutual indearments . p. . lin . . jupiter's register . ] 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in the greek proverb , is the skin of that goat , which nursed him in his childhood , of which after her death in honour of her memory , and reward of her services , he made his register , to enroll therein and set down upon record all the concerns of mankind . lin. . of some aethalides . ] he was the son of mercury , and had the priviledge allowed him to be one while among the living , another while among the dead , and by that means knew all that was done among either of them . the moral is plain , that he was a great scholar , who what with his refin'd meditation and study of books , which is being among the dead , and what by his conversation with men , had attained great knowledge and prudence : so that pythagoras himself , as modest as he was to refuse the title of wise man , and to content himself with that of a philosopher , that is , a lover of wisdom , yet was fond of the counterfeit reputation of being thought to be he , giving out according to his own doctrine of transmigration , that he was the man. chap. ix . p. . lin . . what ? that those very letters , &c. ] the authors expression here may seem somewhat obscure ; wherefore i think fit to set down this by way of explication . he sayes , that the letters which the greeks used in caesar's time , and which we now use , are rather such as the greeks borrowed from the gauls than what they had originally of their own . this he proves in the end of this paragraph by the judgement of several learned men. so then , if this were so , caesar , who without all question was well enough acquainted with the greek letters then in use , yet in all likelihood did not so well know what the true old gallick letters were , the people being strangers to the romans , and he having but lately had any converse with them , and so might very probably mistake , in thinking that , because the letters were the same , the gauls might borrow the greek letters to make use of ; whereas the contrary ( to wit , that the greeks , after the disuse of the phoenician letters , which cadmus had brought over into greece , took the gallick in their stead ) is averr'd by lazius , becanus , &c. chap. x. pag. . lin . . from the sixth moon . ] whether that were from the sixth month they began their reckoning , which among the romans , was august , therefore called formerly sextilis , as the rest that follow according to order , are styled september , october , &c. or whether it were from the sixth day of the moon 's age , ( as they apply by way of proverb quartâ lunâ nati to the unfortunate , hercules having been born on such a day of the moon ) is none of my business to determine , but to leave it to the readers own inquiry and judgement . lin. . nestor's triple age . ] which if it be reckoned according to this account of thirty years to an age , makes but ninety years in all . and though that also be a great age for a man to handle arms , and to attend the duty and service of war , yet that is not so extraordinary a case , but that others may be found in story to stand in competition with him . besides it falls short of that description , which homer hath given of him , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . which implyes , that he had out-lived two generations ( to wit , the fathers which had been bred up with him , and the sons which had grown up into his acquaintance ) and that now he reigned among the grand-children , the third generation , the two former having been swept off the stage . and in this sense the latins took it , as appears by horace , who sayes of him ter aevo functus , that he had gone through the course of nature , lived out the life of man , three times over ; and in that he is styled by another old poet triseclisenex , that is , the three hundred years old gentleman ; for as aevum in the one signifies the whole space of humane life , so seculum in the other is constantly taken for a hundred years . pag. . lin . . greece , all over italy . ] for all the lower part of italy was at that time inhabited by the greeks , and from them called magna graecia , or graecia major , in opposition , i suppose , only to sicily the neighbouring isle , as being alike inhabited by greeks , but of less extent . lin. . voitland . ] a province of germany , in the vpper saxony . lin. . having their heads uncovered . ] that as they were bare-footed , so they were bare-headed also , perfect gymnosophists . the latin is nudis pedibus , capita intectae , graecanico pallio & cucullato , penulâque , and may be rendred indeed , having their heads covered or muffled . but how ? with a pall hooded and a satchell . i , but what had the satchell to do with their heads , that hung at their side , and so they are pictured . but to pass this , reader , thou art at thy own choice , to take which interpretation of the two thou wilt ; for the latin word intectae , as i said , admits of either . chap. xii . pag. . lin . . the women carried it for minerva against neptune . ] there is another account given of this story , that these two gods being in a contest , which of them should be intitled to the presidence of this city athens , they did each of them , to oblige the community in their favour , by a miracle cause to rise out of the ground , the one ( neptune ) an horse , to denote prowess and warlike courage , the other ( minerva ) an olive-tree loaden with fruit , an emblem of peace and fruitfulness ; and that the citizens preferr'd the latter , as the greater merit and more welcome blessing . lin. . juno , salacia , proserpina . ] juno was jove the thunderer's consort , as proserpine was the forc'd mate of grim pluto , the infernal queen . the third , salacia , lady of the sea , was wife to neptune , as ▪ s. austin hath it out of some of the old roman writers : though among the poets she generally pass by the name of amphitrite . pag. . lin . . amalasincta , artemisia , nicaula , &c. ] these brave ladies or she-heroes are famous upon record , and need not any thing further for their commendation , but their name . this artemisia mentioned here , was not the wife of mausolus , a vertuous and magnificent woman too , but another who lived in xerxes's time , a great commandress , in alliance with him . nicaula , it seems , though whence he learn't her name , i cannot tell , for scripture gives it us not ; was she , who is there called the queen of the south , a great admirer of solomon's wisdom . chap. xv. pag. , . the inscriptions , which are left un-englished , are only brought in , to evidence , that there were several roman colonies , beside that at maldon , called colonia victricensis , planted up and down in britain ; to wit , at york , at chester , at glocester , and i doubt not but at colchester too , no less than there was one at cullen in germany , as the very name of them both imports , colonia . and that ours hath an addition of chester to it , is usual to some other cities : colchester for colnchester , which in latin would be colonia gastri , or rather coloniae castrum , the castle or garrison of the colony . chap. xvi . pag. . lin . . now you for your part are gods vicegerent in the kingdom . ] they are the words of pope eleutherius in his letter to lucy , the first christian king , which was in the year of our lord . from whence we may fairly conclude , that in those early dayes , the pope of rome according to his own acknowledgement had no such pretensions as now for several ages since they have made , upon the rights of princes , to the great disturbance of the world , and reproach of christian religion . and indeed this is the more considerable , in that such was the simplicity of devotion in those early converts , and such the deference , which princes who embraced the christian faith , especially from the missionaries of rome , had for that holy see , as appears by this one single instance ; that it had been no hard matter , nor could be judged an unreasonable thing , for them to lay claim to a right , and assert a power , which was so voluntarily offered . further i add , that seeing the donation of constantine , besides that it was alwayes look't upon as a piece of forgery , was at best , supposing it true , but an imperial grant and concession , which would not be of authority enough to bear up the popes supremacy in all other kingdoms of the earth ; and seeing pope boniface , who was the first that with bare face own'd it , his complyance with phocas was so grosly wicked , that none of their own writers but are ashamed to make that transaction betwixt those two , an argument for the papal pretence : seeing , i say , it is so , if the pope be intitled , as their canonists pretend , to an universal dominion by vertue of his office , and by commission from christ and his chief apostle s. peter , how came it to pass , that the bishops of rome all along till boniface , were so modest , as not to challenge any such rights or powers ; nay , upon occasion to declare against such pretences , as antichristian ; which , if that be true , that the pope is by his office , and by a divine commission instated into a supremacy , was in effect no less , than to betray the cause of christ and his church : how came it to pass , that eleutherius should neglect such a seasonable and exemplary opportunity of maintaining and exercising his right , and should rather chuse to return it in a complement back to the king his convert ? vicarivs verò dei estis in regno , sayes he , you are god's vicar in your kingdom : which title now the pope doth with as much arrogance challenge to himself , as here one of his predecessors doth with modesty ascribe to the king. lin. . with the title of spectabilis . ] towards the declension of the roman empire , it was usual so to distinguish great offices with peculiar titles , as spectabilis , clarissimus , &c. so among the italians , magnifico to a senator of venice , illustrissimo to any gentleman , eminentissimo to a cardinal : so with us the term of highness is given to a prince of the blood , excellence to a vice-roy or a lord lieutenant and to a general of an army , grace to an arch-bishop and to a duke , honour to a lord , worship to an esquire , &c. chap. xvii . p. . lin . . fabius quaestor aethelwerd . ] why he calls him fabius quaestor , is at present past my understanding . did he take upon him a roman name ? was he in any such office as quaestor , i. e. treasurer or receiver general , wherein he behaved himself like a fabius ? or did he intitle his book by that name ? i am to seek . chap. xviii . pag. . lin . . whatsoever there was in pandora of good and fair. ] she was a woman made by jupiter's own order , and designed to be the pattern of female perfection : to which end all the gods contributed to the making of her several gifts , one wisdom , another beauty , a third eloquence , a fourth musick , &c. chap. xix . p. . lin . . wapentakes . ] which in some of our northern countreys is the same as we call other-where a hundred , from the saxon word waepen , i. e. arms , and tac , i. e. touch ; as one should say , a touching or shaking of their arms. for , as we read it in king edward's laws , when any one came to take upon him the government of a wapentake , upon a day appointed all that owed suit and service to that hundred , came to meet their new governour at the usual place of their rendezvouz . he upon his arrival , lighting off his horse , set up his lance an end ( a custom used also among the romans by the praetor at the meetings of the centumviri ) and according to custom took fealty of them . the ceremony of which was , that all who were present , touch't the governours lance with their lances , in token of a confirmation : whereupon that whole meeting was called a wapentake , inasmuch as by the mutual touch of one anothers arms , they had entred into a confederacy and agreement to stand by one another . this fashion , they say , the saxons took up from the macedonians their progenitors . others will have it from tac to take , and give this account of it , that the lord of the hundred at his first entrance upon the place was used to take the tenants arms , surrendred and delivered up to him by themselves , in token of subjection by way of homage . sir thomas smith differs from both these ; for he sayes , that at the hundred meeting , there was a muster taken of their weapons or arms ; and that those who could not find sufficient pledges for their good abearing , had their weapons taken away ; so that in his sense a wapentake is properly armilustrium , and so called from taking away their weapons or arms , who were found unfit to be trusted with them . l. . for the ceremony of the gown . ] he alludes to the roman custom , with whom the youth , when they arrived at mans estate , were then allowed to wear togam virilem , to put on a gown , the habit of men ; whereas before that , they were obliged to wear a coat peculiar to the age of childhood , called praetexta : whence papyrius , though yet a child , being admitted into the senate-house for his extraordinary secrecy and manly constancy , was called papyrius praetextatus . pag. . lin . . morgangheb . ] or morgingab , from morgin , which in high dutch signifies the morning , and gab , a gift ; to wit , that present , which a man makes to his wife , that morning he marries her . chap. xx. pag. . lin . . tityus his liver . ] a gyant , who for ravishing of latona was adjudged to have his liver after death prey'd upon continually by a vulture , which grew up again as fast as it was wasted . the equity of which punishment lay in this , that the liver is reputed the source and seat of all lusts and unlawful desires , and doth naturally , as some physicians hold , receive the first taint of venereal distempers ( the rewards of impure mixtures ) according to that of solomon , speaking of an adulterer , till a dart strike thorough his liver ; from whence they gather , that that , which we now call the french pox , was not unknow even in that age of the world. l. . prema and mutinus . ] this latter a title given to priapus , much-what such a god , as baal peor was ; the other a goddess forsooth much to the same purpose . for the old romans had gods and goddesses , as the present romans have saints , for every thing , for every action of life . but their offices were such , as the modest reader will easily excuse the want of explaining them . lin. . sayes progne to her sister philomel . ] tereus king of thrace having married progne daughter of pandion king of athens , when he went to fetch her sister philomel , ravished her by the way on ship-board ; which occasioned a bloody revenge in the murder of his son itys . at last they were turned all four into so many several sorts of birds ; progne into a swallow , philomel into a nightingale , tereus into a lapwing , and itys into a pheasant . chap. xxi . pag. . lin . . with head-money called wergild . ] a word compounded of the saxon were , the price or value or worth of a man , and geld or gild , a payment . that is , he that had killed another , was to buy off his life , by paying the full value of the person slain . the prizes or rates are set down in ethelstan's laws , by thrimsa's , a kind of coyn , or piece of money , of the value of three shillings , saith mr. lambard ; which being reduced to our sterling stand thus . a peasant , l. s. a thane , or one in orders , l. a general , or chieftain , l. a bishop , or alderman , l. an arch-bishop , or peer , l. and a king , l. half of which last summ was to go to the kindred , and the other half to the publick . and these rates are set , he sayes , by the common law of the english. the reason of this pecuniary compensation , was their tenderness of life , that two men might not dye upon the account of the same mischance , according to that saying in an ancient law , nulla sit culpa tam gravis , ut vita non concedatur , propter timorem dei. but yet withal in some cases of premeditated or clandestine murder , they were not excused from making satisfaction with their life ; or in case one were not able to pay the were , or fine , he was punished with death . i called this head-money , because in latine it is termed capitis aestimatio , the value or price of a mans head : not in that sense as either chevage or poll-money is so called . chap. xxii . pag. . lin . . in the margin caxton is quoted , a book , it seems , rare ; of which he saith , that book , that goes up and down by this name , mr. war in townsend of lincolns-inn , a gentleman noble by his descent and learning both , very friendly lent me for my use in a very fair manuscript ; which courtesie of his , i cannot but think it a foul shame for me , not to own and acknowledge with all thankfulness . pag. . lin . , . even now in the time of those that are called the good. 't is william of malmesbury , whom he quotes ; etiam nunc tempore bonorum . whether he mean good princes , who would have those laws observed , or honest subjects , who would observe them , or whether there were any sort of men in his time that went by that character of boni , good men , is more than i have to say . there was at one time a sort of religious persons , that went by the name of bon hommes ; but that can have nothing to do in this business . chap. xxiii . pag. . lin . . every native home-born lawful man. ] in the latin it is indigena legalis , in the saxon law-term it is inlaughe or inlaugh , that is , one that is under the law , inlagatus , who is in frank pledge , or belongs to some court leet : as all males from twelve years old and upwards were obliged to be . so bracton tells us . lin. . decenna . ] the same as decuria , which is generally rendred a tithing , i.e. a company of ten men with their families , all of them bound to the king to answer for one anothers good and peaceable behaviour . from the latin word it is called a dozein , and the people that belong to it are called deciners or dozeniers , that is , decennarii . the chief of them is termed decurio or decanus friburgi , the tithing-man or headborough . and all males of twelve years age and upwards ( except nobles and religious persons ) were obliged to be of some dozein or other . but now there are no other dozeins but leets , and no other security there given for the kings peace , but the persons own oath . lin. . friborgh . ] from the saxon freo , free , and borgh ▪ a surety or security : or , as some write it , fridburgh , from frid , peace , and burgh , a surety . if it be taken for the person , it is the same that a deciner ( we now spoke of ; ) if for the action , it is their being sureties for one another : if for the company of these mutual ingagers , 't is the same as decuria , a tything , in saxon tienmannatale , i. e. the number of ten men . the normans retained the same custom , but altered the name , calling it frankpledg , from the french , frank , i. e. free , and pledg , i. e. surety . and the compass or circuit of this frankpledg the same as that of friburg , to wit , the decenna or dozein , i. e. ten housholds . lin. . manupastus . ] of this bracton sets down a rule for law , that every person , whether free-man or servant , either is or ought to be in frank-pledge or of some bodies mainpast . now he is of ones mainpast , saith he , who is allowed victuals and clothes , or victuals only and wages . and this was the reason , why great men were not obliged to be of any ordinary dozein , because bishops , earls and barons , as the same bracton informs us , ought to have their menial servants in their own friborgh , and to answer to the king for their behaviour , and to pay what forfeits they should make , if they had not the persons themselves forth-coming . and this , sayes he , is the case of all those who are of any ones mainpast . chap. xxiv . p. . lin . . john scot erigena . ] a school-man famous for his subtilty , called in latin , johannes duns scotus . whether duns were the name of his family , as it might be , johannes de dunis , which in english would be john downs ; or whether it were a nickname given him for his slovenliness and seeming blockishness , from the word dunce , which in barbarous latin is dunsa , ( for so in camden's remains we find the emperour charles , as i take it , putting that question to him , as he sate at table over against him , quid interest inter scotum & sotum , what difference between a scot and a sot ? to which he as freely replyed , mensa , the table , sir ) i shall not determine . but scotus or scot , is the name of his countrey , he being a scotch-man , and for that reason called also erigena , that is , irish born , to wit , a highlander ; for those people were originally irish , and came out of that island over into the north parts of scotland . now ireland is by several authors greek and latin called ierna , and by the inhabitants themselves erin . l. . the goddess anna perenna . ] the lady president of the year , anna ab anno ; to whom they addrest their devotions , that she would perennare , that is , preserve and continue health and plenty and prosperity from year to year ; for which reason she was called anna perenna . now our author here brings in long-lived nestor and this goddess , to shew that those good fellows in quaffing of healths , do wish muchos annos , as the spaniard saith , many and many a years life to their absent friends , while in the mean time by tossing off so many bowsing canns , they shorten their own lives . pag. . lin . . englescyre . ] or englecerie , that is , the being an english-man . for there was a law made by king knute in favour of his danes ( and so afterward it was interpreted in behalf of the francigenae , french-men , or whatever foreigners ) that if any such were privily murdered or slain , the village , where the fact was done , should be amerced in a lusty fine to the king , unless they could prove englecerie , that is , that the murdered person was an english-man , one born of english parents , in which case there was no fine levied . so that the danes and french , when they governed here , provided they might secure themselves from the english , were well enough content to let them destroy one another . chap. xxv . pag. . lin . . an olympiad . ] an account of time used by the greeks , consisting of four years , so called from the olympick games , which were celebrated in honour of jupiter olympius every fifth year . this reckoning began first in the year of the world three thousand one hundred seventy four . in the second book . chap. i. pag. . l. . by right of fréehold . ] allodii jure , that is , by a mans own right , without acknowledgment of service or fealty , or payment of rent to any other as a superiour lord. in which respect it is opposed to an estate in fée , wherein though a man hath a perpetual right to him and to his heirs for ever , yet seeing he owes a duty and service for it , it cannot be said properly and simply to be his own . and such are all mens estates here in england , but the kings in the right of his crown , who cannot be supposed to hold of another , or to owe fealty to any superiour , but to god only . lin. . vnder military service . ] or knights service , that is , to find the king such a number of men and arms in time of war , as it is here expressed . see cowell in the word chivalry . indeed the clergy before the conquerour in the time of the saxons ( as we find it in the five and twentieth chapter of the first book ) were allowed to be free from secular services , but with an exception and reserve however of these things , to wit , expedition , repairing of castles and building of bridges , from which last duty the high-priests among the romans were called pontifices , i. e. bridge-makers . now this bringing of the bishops baronies under knights service , was sure enough design'd to engage them into a close dependence upon the crown , and to take them off from hankering after any forreign power , to which they might pretend to owe any subordination ; as all along the times of popery , out of reverence to the holy see , they were forward enough upon occasion to think themselves obliged to do , even to the high discontent and great disservice of their kings . chap. ii. pag. . lin . . ready money . ] so i render viva pecunia : which though spelman saith it is so called , that it may the more expresly signifie pecudes , i. e. cattle ; yet he doth not to me , i confess , make out by any fair instance that it doth ever so signifie ; and that it cannot be taken in that sense here , is plain from what immediately goes before , quot animalia , imò quantum vivae pecuniae quisque possidebat : where animalia living creatures include pecudes the cattle . chap. iii. pag. . lin . . boseham . ] what earl godwin's trick was , or wherein the conceit lay , i cannot at present well imagine , unless it were in the equivocation or misunderstanding of the word boseham , as it falls in with the word bosom in the pronunciation and sound of it ; thus . supposing the earl at meeting of the arch-bishop , coming up to him upon pretence of saluting him said , give me your boseham , my lord ; to which the arch-bishop thinking belike , he might , by way of desiring his pastoral embrace , mean only his bosom , readily made answer , i give you my bosom ; which the earl with a cunning fetch interpreted a grant of his estate of boseham . pardon , reader , my mistake , if it be one ; since i have no better account , from my own guess , to give , meeting with no help from our law-dictionaries . chap. iv. p. . lin . . the first sheriffs of counties . ] a sheriff or shyrereed signifies the governour of a county , called in latin vice-comes , as deputy to the count or lord or chief man of the county ; though even in the confessor's time he was reckoned the kings officer , and not the counts . this office , as mr. camden tells us , was first set up by king alfred , who also divided england into counties , and those counties again into hundreds and tythings . lin. . other judges without appeal . ] this should seem to be the court of chancery : for which reason the lord chancellor is said to keep the kings conscience , as here these judges are compared to the kings bosom . lin. . acting a busiris his part . ] i. e. treating strangers ill ; he being a cruel tyrant of egypt , who slew strangers , and sacrificed them to his gods : whence the proverb , busiridis arae . pag. . lin . . that he should pay it at the scale . ] that is , should pay it by weight , or according to full weight . chap. vi. pag. . lin . . being lord chief justice of the whole kingdom . ] in the latin it is thus expressed ; totius regni placitator & exactor : where i confess the former title of the two gave me the occasion of my mistake , as if he had been chief justice of the common pleas : whereas i should rather have rendred it thus ; who had been ( to wit , in king rufus his time ) pleader or demander and receiver of the kings duties throughout the whole kingdom . for such an officer this exactor regius was , otherwise called grasio . see spelman upon both those words . lin. . in the times of the saxons a hereot . ] this at first was a tribute given to the lord for his better preparation towards war ; but afterward though the name were kept , the thing was altered , being taken for the best chattle , that the tenant hath at the hour of his death , due to the lord by custom , be it horse , ox , &c. that hereot and relief do not signifie the same thing , appears by this , that they are both often sound to be paid out of one and the same tenure , and again that the heir alway succeeds into the estate upon the payment of the relief , but not alwayes upon the payment of the hereot . lin. . in french is called a relief . ] from the verb relever , to raise again and take up the estate which had faln into the lords hand by the death of the ancestor . it is a summ of money , which the new homager , when he is come to age , payes to the lord for his admission or at his entrance into the estate . whence by the old civilians 't is called introitus , and in greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . this summ was moderately set ; wherein it differed from ransom , which was much more severe . the kings rates upon his homagers were thus : an earls heir was to give an hundred pounds , a barons an hundred marks , a knights an hundred shillings at most ; and those of lesser estate less , according to the ancient custom of their tenures : as spelman quotes it out of the charter of henry the third . pag. . lin . . of the greater uavasors . ] they were a sort of gentlemen next in degree to the barons . they did not hold immediately of the king , but of some duke , marquess or earl. and those that held from them again , were called valvasini , or the lesser vavasors . there is little certainty what their offices or priviledges were , or indeed whence they were so called ; whether qu. ad valvas stantes , or valvae assidentes , for their sitting or standing at their lords door , ( if those of that quality did so ) as some would have it ; or that they kept the doors or entrances of the kingdom against the enemies , as spelman sayes ; or whether from vassal●i , as the feudists derive the name , from that inferiour tenure they had mediately from the king by his great lords ; which seems the more likely , because these greater vavasors , who did so hold , are sometimes termed valvasores regii and vassi dominici , that is , the kings vassals . lin. . her dowry and right of marriage . ] in the latin it is dotem suam & maritagium . now dos is otherwise taken in the english , than in the roman laws ; not for that which the man receives with his wife at marriage , a portion : but for that which the woman hath left her by her husband at his death , a dowry . and maritagium is that which is given to a man with his wife , so that 't is the same as dos among the romans , saith spelman . but this is too general , i think , that the man should be obliged to return at his death all to his wife that he had with her , beside leaving her a dowry . i am therefore rather inclined to cowell , who tells us , maritagium signifies land bestowed in marriage ; which , it seems , by this law was to return to the wife , if her husband dyed before her . the word hath another sense also , which doth not belong to this place , being sometime taken for that which wards were to pay to the lord for his leave and consent that they might marry themselves , which if they did against his consent , it was called forfeiture of marriage . lin. . the common duty of money or coinage . ] so i render the word monetagium . for it appears , that in ancient times the kings of england had mints in most of the countreys and cities of this realm . see cowell in the word moniers . for which priviledge , 't is likely , they paid some duty to the chief place of the mint . thus in doom●sday we read , as spelman quotes it , that in the city winecestre every monyer paid twenty shillings to london ; and the reason given , pro cuneis monetae accipiendis , for having stamps or coins of money . for from this latin word cuneus ( which our lawyers have turned into cuna , from whence the verb cunare ) comes our english word coyn. now it is more than probable , that the officers of the chief mint might by their exactions upon the inferiour mints give occasion for the making of this law. lin. . or children or parents . ] by parent here we are to understand not a father or mother , but a cousin , one a-kin ; as the word signifies in french , and as it is used in our laws . and indeed the latin word it self began to have that sense put upon it in vulgar speech , toward the declension of the empire , as lampridius informs us . pag. . lin . . a pawn in the scarcity of his money . ] that is , if he were not able to pay his forfeit in specie , i. e. to lay down the money , he was to give security by a pawn of some of his goods or chattels . see cowell in the word gage . this in latin is called vadium , a pawn or pledge , from vas , vadis , a surety . hence invadiare , to pawn or ingage a thing by way of security , till a debt be paid . lin. . nor shall he make amends . ] from the french amende , in our law-latin emenda : which differs from a fine ( or mulct ) in this , that the fine was given to the judge , but amends was to be made to the party aggriev'd . now there were three sorts of this amende , the greater which was like a full forfeiture , the mid-one at reasonable terms , and the least or lowest which was like a gentle amercement . this distinction will help to explain the meaning of this law. l. . per fée de hauberke . ] this in latin is called feudum hauberticum , i. e. loricatum , sayes hotoman , from the french word haubert , that is , a coat of mail , when a vassal holds land of the lord on this condition , that when he is called , he be ready to attend his lord with a coat of mail or compleat armour on . now haubert , as spelman tells us , properly signifies a high lord or baron , from haut or hault , high , and ber ( the same as baro ) a man or baron . and because these great lords were obliged by their place and service to wait upon the king in his wars on horse-back with compleat armour , and particularly with a coat of mail on : hence it came , sayes he , that the coat of mail it self was also called haubert ; though he doth afterward acknowledge that the word is extended to all other vassals , who are under that kind of tenure . but then at last he inclines to think , that the true ancient writing of the word is hauberk ( not haubert ) as it were hautberg , i. e. the chief or principal piece of armour ; and berg he will have to signifie armour , as he makes out in some of its compounds , bainberg armour for the legs , and halsberg armour for the neck and breast : and derives it from the saxon beorgan , i. e. to arm , to defend . add to this , saith he , that the french themselves ( and we from them ) call it an haubergeon , as it were haubergium . lin. . from all gelds . ] the saxon word geld or gild signifies a tribute or tax , an amercement , a payment of money , and money it self : whence i doubt not , but the best sort of money was called gold. it is from the verb geldan or gyldan , to pay . in latin it is geldum , and not gilda , as cowell writes it . for this signifies quite another thing , a fraternity or company of merchants or the like . whence a gild-hall , that is the hall of the gild or society : such as was once the stilyard , called gildhalla teutonicorum , the gild-hall for the dutch merchants from the hanse-towns . chap. vii . pag. . lin . . iphis and ianthis and ceneus . ] persons mention'd by ovid , who changed their sex , from female to male. iphis was a maid of creet , who after her metamorphosis when she turn'd to man , took ianthe to wife : and caenis ( for that was her maiden name ) was a thessalian girl , whom neptune made a whore of first , and then at her request a man , who thenceforward went by the name of caeneus . lin. . cheats , whom they commonly call coyners . ] in malmesbury's latin , trapezitas , quos vulgò monetarios vocant . which bare citation is all the account , that spelman gives of the word monetarius . it doth properly signifie an officer of the mint , that makes and coyns the kings money ; a monier . but here by the historian's implying that such fellows , as this law was made against , were falsarii , cheats , and by our author 's terming of them adulteratores monetae , counterfeiters of coyn : we must understand them to be false coyners , clippers , washers , imbasers of the kings coyn , and the like . and therefore i render'd trapezitas ( which otherwise is a word of innocent meaning for money-changers , bankers , &c. ) in the historian's sense cheats . chap. viii . pag. . lin . . every hide of land. ] it is so called from the saxon word hyden , to cover ; so that thus it would be the same as tectum in latin , a dwelling-house . and thus i question not , but there are several houses called the hide : for i know one or two my self so called , that is , the capital messuage of the estate . nor is it so confined to this sense , but that it takes in all the lands belonging to the messuage or manour-house , which the old saxons called hidelandes , and upon some such account no doubt hidepark had its name , as a park belonging to some great house . now as to the quantity , how much a hide of land is , it is not well agreed . some reckon it an hundred acres , others thereabouts , by making it contain four yardlands , every yardland consisting of twenty four acres . the general opinion is , that it was as much as could be ploughed with one plow in a year , terra unius aratri culturae sufficiens . and thus it should be much what the same as carrucata terrae , i. e. a plough-land . from bede , who translates it familia , they gather it was so much as could maintain a family . there is mention made of these hides in the laws of king ina , an hundred years before king alfred , who divided the countrey into counties or shires . and taxes and assessments were wont to be made according to these hides ; up as high as king ethelred's time in the year of our lord . since the conquest , william the first had six shillings for every hide in england , rufus four , henry the first here three for the marriage of his daughter . pag. . lin . . this right is called wreck . ] i. e. by which the king claims shipwrack't goods cast on shoar . for though by the law of nature such things , as being nullius in bonis , having no owner , every one that finds them may seem to have a right to them ; yet by the law of nations they are adjudged to the prince as a special priviledge by reason of his dignity . now wreck ( or as the french call it varec ) properly signifies any thing that is cast on shoar , as amber , precious stones , fishes , &c. as well as shipwrack't goods : from the saxon wraec , i. e. any thing that is flung away and left forlorn ; though use hath limited the word to the later sense . chap. ix . pag. . lin . . the roman laws were banisht the realm . ] i suppose there may be some word missing or mistaken in the latin , à regno jussae sunt leges romanae : but that which follows , the forbidding of the books , obliged me to that interpretation : for why should the books of those laws be prohibited , if the laws themselves were ( as the latin reading seems to import ) ordered and ratified by the realm . wherefore i suppose some mistake , or omission , and for à regno jussae , read à regno pulsae or exulare jussae , &c. unless you would like to have it thus rendred , commanded out of the kingdom : which i confess would be a very odd unusual construction . chap. x. pag. . lin . . three hundred marks of gold. ] a mark weigh'd eight ounces , and as cowell states it out of stow , it came to the value of l. s. d. at this rate three hundred marks of gold come to five thousand pound ; and to every bishop five marks , supposing only ten bishops , come to l. s. d. which is a very unlikely summ in this business . 't is true , the value of it , as of other coyns and summs , might vary . and so we find in spelman , that an uncertain author reckons a mark of gold to be worth fifty marks of silver . but then 't is as uncertain , what marks of silver he means . for if they be such as ours are ( and as they were in king john's time ) at s. d. then a mark of gold will be of the value of l. s. d. which is just double to the former value of l. s. d. ( which being resolved into marks of silver , makes but . ) but in ancient times a mark of silver was only s. d. so that fifty of them will make but l. s. another instance we meet with , where one mark of gold is accounted equivalent to ten marks of silver ; which taking a mark for s. d. comes to l. s. d. another , where nine marks of silver pass for one mark of gold , in a payment to the king : which is just six pound . and these three last accounts agree pretty well together . taking the middlemost of the three , viz. a mark of gold at ten marks of silver ; thus the above named summ of three hundred marks of gold , that is , three thousand marks of silver amounts to two thousand pound ; and the five marks to every bishop ( supposing but ten bishops ) come to l. s. d. but if we take these marks of silver at s. d. the account will grow much less . for ten such marks are but l. s. so that the three hundred marks of gold at this rate will come but to l. sterling . but that these marks of the ancient and lower estimate are not here intended , may probably enough be gathered from one passage more we find there , centum solidi dentur vel marca auri , where , if solidi stand for shillings ( for they may be taken for soulx as the french call them ) a mark of gold is made of equal value with l. sterling . and thus three hundred marks of gold come to fifteen hundred pound . i confess after all , most of these accounts of the mark , gold or silver , may be admitted of , as having possibly at some time or other been true ; since mony , both in its coyns and summs , hath in several ages of the world , risen , and fallen according to its plenty or scarcity . lin. . being arighted and accused of any matter . ] or rather in the law-spelling arrested ; in latin rectatus , that is , ad rectum vocatus , convened before a magistrate and charged with a crime . thus ad rectum habere , is in bracton , to have a man forth coming , so as he may be charged and put upon his tryal . it may be also rendred , taken upon suspicion . it is written sometime retatus and irretitus . pag. . lin . . to give suretiship for the remainder . ] i confess i do not well know how to apply to this place that sense , which our common law takes the word remainder in , for a power or hope to enjoy lands , tenements or rents after anothers estate or term expired ; when an estate doth not revert to the lord or granter of it , but remains to be enjoyed by some third person . what if we say , that as bishops could not ( because their estates are of alms ) grant any part of their demeans ad remanentiam , for ever or to perpetuity , so here excommunicate persons were not obliged dare vadium ad remanentiam , to find sureties for continuance or for perpetuity , that is , for their future good behaviour , but only to stand to the judgement of the church in that particular case for which they were at present sentenced . chap. xi . pag. . lin . . if a claim or suit shall arise . ] in the latin , si calumnia emerserit , a known and frequent word in our law , which signifies a claim or challenge , otherwise termed clameum . lin. . till it shall by plea be deraigned . ] or dereyned : which is in french dereyné , in the latin , disrationatum , which as it hath several significations in law , so here it imports , after a full debate and fair hearing , the determination of the matter by the judgement of the court. chap. xii . pag. . lin . . by the name of yumen . ] the same say some , as the danes call yong men . others derive the word from the saxon geman , or the old dutch gemen , that is , common , and so it signifies a commoner . sir tho. smith calls him yoman , whom our laws term legalem hominem , a free-man born ( so camden renders it by ingenuus ) who is able to spend of his own free land in yearly revenue to the summ of forty shillings , such as we now , i suppose , call free-holders , who have a voice at the election of parliament-men . but here the word is taken in a larger sense , so as to include servile tenure also or villenage . chap. xiii . pag. . lin . . leude-men . ] from the saxon leod , the common people . it signified in law a subject , a liege man , a vassal , a tenant : hence in high-dutch a servant was called leute , in old english a lout . but in common acception lewd was formerly taken for a lay-man , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , one of the people , or for any illiterate person . now it is used to denote one who is wicked or loose and debauched . chap. xiv . pag. . lin . . the states of the kingdom , the baronage . ] he means the whole parliament , and not only the house of lords by the word baronage . for though by barons , now we properly understand the peers of the realm ; yet anciently all lords of manours , those who kept court-baron , were styled barons : nay spelman tells us , that all free-holders went by that name before the free-holds were quit letted out into such small pittances , as now they are , while noble-men kept their lands in their own hands , and managed them by their vassals . cowell gives this further account of those lords of manours , that he had heard by men very learned in our antiquities , that near after the conquest all such came to parliament , and sate as nobles in the upper house . but , as he goes on , when by experience it appeared , that the parliament was too much pestered with such multitudes , it grew to a custom , that none should come but such as the king , for their extraordinary wisdom or quality , thought good to call by writ , which writ ran hâc vice tantùm , that is , only for this turn . so that then it depended wholly upon the kings pleasure . and then he proceeds to shew , how after that they came to be made barons by letters patents , and the honour to descend to their posterity . lin. . by way of safe pledge . ] that is , to oblige them to give security for the parties appearance against the day assigned ; who in case of default were to undergo the dammage and peril of it . pag. . lin . . st. peter's pence . ] these peter-pence were also called in saxon , romescot and romefeoh ( that is , a tribute or fee due to rome ) and rome-penny and hearth-penny . it was paid yearly by every family ( a penny a house ) at the feast of s. peter ad vincula on the first day of august . it was granted first , sayes our author out of malmesbury , by ina or inas king of the west-saxons , when he went on pilgrimage to rome , in the year of our lord . but there is a more clear account given by spelman ( in the word romascot ) that it was done by offa king of the mercians , out of an author that wrote his life . and it is this , that offa after thirty six years reign having vowed to build a stately monastery to the memory of st. alban the british protomartyr , he went on pilgrimage to rome , adrian the first then pope , to beg indulgences and more than ordinary priviledges for the intended work . he was kindly received , and got what he came for ; and the next day going to see an english school , that had been set up at rome , he for the maintenance of the poor english in that school , gave a penny for every house , to be paid every year throughout his dominion , ( which was no less than three and twenty shires at that time ) only the lands of s. alban excepted . and this to be paid at the feast of s. peter , because he found the body of the martyr on that day , for which reason it was also called s. peter's penny. and although at last these peter-pence were claim'd by the pope as his own due and an apostolical right , yet we find , that beside the maintenance of a school here mentioned , for which they were first given , they have by other kings been appropriated to other uses . thus we read that athelwolf father to king alured , who was the first monarch of this isle , granted three hundred marks ( the summ total of the peter-pence here , bating only an odd noble ) to be paid yearly at rome . one hundred for the honour of s. peter , to find lights for his church : another hundred for the honour of s. paul on the like occasion : and the third hundred for the pope's use to enlarge his alms. this was done in the year . when leo the fourth was pope . lin. . thirty pence of live money . ] possibly the worth or value of thirty pence in goods and chattels . king offa , in his grant thus words it , quibus sors tantum contulit extra domos in pascuis , ut triginta argenteorum pretium excederet ; who had an estate besides houses in lands , which might exceed the value of thirty silver pence . lin. . out of a rescript of pope gregory . ] we have the whole letter set down in spelman , which speaks in english thus , gregory the bishop , servant of the servants of god , to his worshipful brethren the arch-bishops of canterbury and york , and to their suffraegans , and to his beloved sons the abbots , priors , arch-deacons and their officials , appointed throughout the kingdom of england , unto whom these letters shall come , greeting and apostolical benediction . in what manner the pence of s. peter , which are due or owing to our chamber , are to be gathered in england , and in what bishopricks and dioceses they are owing , that there may arise no doubt on this occasion , we have caused it to be set down in this present writing , according as it is contained in the register of the apostolick see. out of the diocess of canterbury seven pounds and eighteen shillings sterling : out of the diocess of london sixteen pounds , ten shillings . and so of the rest . yeoven at the old city , april . in the second year of our popedom . there is some difference though in the account of the dioceses . for after lincoln he leaves out coventry and puts chichester for chester , l. and then after bath he puts in salisbury and coventry ( with a mistake l. s. for s. ) and leaves york last . besides every body knows there are more dioceses now than were then . this was gregory the fifth that wrote this , and it was ( our author tells us ) in the time of king edward the second . but edward the third in the year of the lord . and of his reign . forbad these peter-pence to be paid any more at rome , or to be gathered any longer in england . chap. xv. pag. . lin . . into six provinces or circuits . ] as they are for number still , with two judges a piece , though at first three . how these differ from what they now are , as to the counties , the reader may easily satisfie himself . here are thirty seven of them , as we now reckon : only with this difference , that monmouth and rutland are left out , and richmond and copland are put in . pag. . lin . . and if he perish , i. e. sink , let him lose one foot . ] for that in this tryal by water , was the sign and proof of guilt , if the party thrown in did not swim , which is quite contrary in the tryal of witches : as you will find in the next chapter , which treats of ordeals . lin. . the kings great assise . ] assise is a word , that hath many significations in our law. it is here in the title taken for a statute ; the assises ( i. e. the statutes and ordinances ) of king henry made at clarendon . but in this place it is used for a jury ; and it is either the great or grand assise , which serv'd for the right of property , and was to consist of twelve knights ; or the petty assise , which served for the right of possession only , and was made up of twelve lawful men . chap. xvi . pag. . lin . . the superstitions and fopperies . ] these you have also in sir h. spelman , with an incipit missa judicii , which shews that the church of rome did once approve of these customs , which since she hath condemned , notwithstanding her pretence of being infallible . i would to god , she would deal as ingenuously in throwing off those other errors and corruptions , we do so justly charge her with . chap. xvii . pag. . lin . . hogenhine . ] or agen-hyne , that is , ones own servant . it is written also home-hyne , that is , a servant of the house . lin. . holding in frank pledge . ] the latin is francus tenens . wherefore amend the mistake , and read holding in frank fee. for frank pledg is a thing of another nature , as belonging to a mans behaviour and not to his tenure . now frank fee is that which is free from all service , when a man holds an estate at the common law to himself and his heirs , and not by such service as is required in ancient demesne . pag. . lin . . the falcidian law. ] so named from one falcidius , who being tribune of the people in augustus his time , was the maker of this law. lin. . twenty pounds worth of land in yearly revenue . ] so i render . libratae terrae . for although cowell in proportion to quadrantata , or fardingdeal of land , which he saith is the fourth part of an acre , seem● at first to gather that obolata then must be half an acre , denariata a whole acre , and by consequence solidata twelve acres , and librata twenty times twelve , that is , two hundred and forty acres : yet this was but a conceit of his own . for by having found the word used with reference to rent as well as land , thus . libratas terrae vel reditûs , he is forced to acknowledge , that it must signifie so much land as may yield twenty shillings per annum . to which opinion spelman also giv● his assent . but what quantity of land this librata terrae is , cannot so easily be determined . cowell out of skene tells us , it contains four oxgangs , and every oxgang thirteen acres : if so , then it is fifty two acres , and twenty of them , which make a knights fee , come to one thousand and forty acres , which somewhat exceeds the account here set down of six hundred and eighty out of the red book of the exchequer . but there is a great deal of more difference still , as the account of the knights fée is given by others . in one manuscript we read , that a yardland contains twenty four acres , four yard-lands make one hide , ( that is , ninety six acres ) , and five hides make a knights fee , ( that is , four hundred and eighty acres ) the relief whereof is a hundred shillings . another manuscript hath it thus , ten acres according to ancient custom make one fardel , and four fardels ( that is , forty acres ) make a yardland , and four yardlands ( that is , one hundred and sixty acres ) make one hide , and four hides ( that is , six hundred and forty acres ) make one knights fee. a third reckons it otherwise , that sixteen yard-lands make a whole knights fee ; which if we make a yard-land to be twenty four acres ( according to the first account ) com●s to three hundred eighty four acres ; but if ( according to the second ) we take it for forty acres , it amounts to six hundred and forty acres . and , saith he , when they are taxed at six shillings four pence ( that is , every of the sixteen yard-lands , which make up the fee , at so much ) they make the summ of one hundred shillings ( or five pound , which was the ancient relief of a knights fee. ) but this is a mistake either of the author or the citation ; it is six shillings three pence , which makes that just summ ; from whence we learn also what proportion was observed by the lord in setting and demanding of the relief upon the next heir after his ancestor's decease . further in the kings writ , as glanvil cites it , it is said , that twelve plough-lands make one knights fee : which , allowing to a plough-land one hundred & twenty acres , amounts to one thousand four hundred and forty acres . in the main , as to the value of a knights fee , 't is enough what cowell tells us , that it was so much inheritance , as was sufficient yearly to maintain a knight wi●h convenient revenue , which in henry the thirds dayes , camden sayes , was fifteen pounds , and sir thomas smith rates at forty . but to confirm the account , which our author here gives us , we find in the statute for knights in the first of edward the second , that such as had twenty pounds in fee , or for term of life per annum , might be compelled to be knights . and as to the various measure of land ( of which we have had a remarkable instance in this business before us ) spelman hath given us good reasons for it ; since where the land was good , they might probably reckon the fewer acres to a yard-land , a hide , a knights fee , &c. and where it was barren , they might allow the more . beside , that some lords , who lett these fees , might be more bountiful and profuse , others more parsimonious and severe to their dependents ; and that the services which were imposed upon these fees , might in some mannors according to custom be lighter , in others upon agreement and covenant more heavy . all which might strangely diversifie the account , as to the quantity or measure of those lands , which were to make up a knights fee. chap. xviii . pag. . lin . . a little habergeon or coat of 〈◊〉 ▪ in latin halbergellum , a diminutive from the saxon halsberg , armour for the neck and breast . it is written also haubergellum and hambergellum . they mistake themselves , who translate it a halbert , in french halebarde , anoffensive weapon , for a coat of mail , which is armour of defence , in french haubert or hauberk ; whence fée de hauberk , which we have already explained somewhere before . lin. . a capelet of iron . ] a little iron or steel cap instead of a head-piece or helmet , which the better sort wore . for by comparing this with the two fore-going sections , we find they were to have a difference of arms according to their different quality and estate . lin. . a wambais . ] wambasium or wambasia , so called , i suppose , because it reached over the belly or womb , was a jacket or coat of defence , used in stead of the coat of mail , perhaps like unto our buff-coats , though probably not of leather only , but of any other material , as the wearer should think fit . pag. . lin . . timber for the building of ships . ] in latin here , mairemia ; written also meremia and meremium and maremium and muremium , from the french meresme , timber to build with . lin. . stercutius . ] saturn so called , as being the first inventer of dunging land. lin. . vnder the title of free-men . ] here the author himself hath in the latin added a marginal note , which i thought fit to remove to this place . he saith , that among the ancient germans the alway free , the middlemost free , and the lowermost free were , as it were , the classes and several ranks of the lesser nobles , i. e. of their gentry . for the title of nobless ( as also in our vulgar language ) was given only to princes and great men. and for this he quotes munster . cosmog . lib. . chap. xix . pag. . l. . in the borders of the carnutes . ] a people of france , whose countrey is called chartrain , and their chief city chartres , about eighteen leagues from paris eastward . that town eight miles off , called dreux ( in latin drocum ) was so named from the druids , who dwelt there at first , and likely enough afterward often resorted thither . p. . l. . of the three estates , the king , the lords , and the commons . ] there are indeed three orders or estates acknowledged by true divines and sound lawyers in the english government ; to wit , the lords spiritual , the lords temporal , and the commons of england . but the fundamental mistake of our learned author is , that he hath joyned those two sorts of lords ( whose very character shews them to be of a distinct species , though as to the publick welfare and the kings service they ought to be of one and the same interest ) into one estate , and to make up the third estate , thought himself obliged to bring in the king himself for one , who is lord paramount over all the three ; and by this means ipsam majestatem in ordinem redigere . i call this a fundamental mistake , as a most probable ground of rebellion ( as it was in the barons wars , and in our late civil broils ) inasmuch as if the king make one of the three estates , as they fancy he doth , and hath ( as they do from thence conclude he hath no more ) but a co-ordinate power with both or either of the other two estates ; that then it is lawful for both or either of those estates , in case of publick grievances to quarrel the king ( their co-ordinate ) if he will not give way to their redress ; that is , if he will not consent to do what they would have him to do ; and upon his refusal of so doing , to raise war against him , to sequester and murder his loyal adherents , to destroy his royal person ; and finally , if he escape the hazards of battel , when they get him into their hands , to bring him to account for a pretended male administration , and the violation of a trust , which god and not the people put into his hands ; and having gone so far , that they may , if possible , secure themselves , to put the monarch to death , and to extirpate monarchy it self . this was the ground and method of our late republican policy and practice . wherein yet they did not foresee what examples they set against themselves , supposing this doctrine of the three estates in their sense to be true , and that king , lords and commons had an equality of trust and parity of power , that the same outrage , which the rump-commoners acted against the king , to the destroying of him , and against the lords , to the outing of them , and voting them useless and dangerous ( as to their share of government ) might one time or other be more plausibly promoted , and more effectually put in execution by one or both of the other two estates , with the help and assistance of great numbers of the commoners ( as there ever will be in such national divisions ) against themselves and all men whatever of such pernicious and destructive principles . no. this false doctrine , i hope , will never obtain among us ; and our english government is so well constituted , that our lords spiritual and temporal and our worthy commoners , will find it the interest of themselves and their posterities , that they will ever have that duty and deference to our soveraign , as may secure him and us , and discourage the designs , and defeat the attempts of all such as wish ill to his honour and safety , or to the publick peace . besides , is it rational to imagine , that the king , whose absolute right by law it is , to convene the estates , when and where he thinks fit , to call and dissolve parliaments , as he pleases : in a word , that he , in whose name all justice is administred , in whose hands the militia is , and by whose authority alone the subjects can take up arms , should stand only in a co-ordination of power with any other persons whatsoever or however assembled or associated within his dominions ? this flaw i could not but take notice of in our great author , and that only with an intention to undeceive the unwary reader , and not to reflect upon his memory , who though he kept along a great while with the long parliament , yet never appeared in action for them , that ever i heard , much less used or owned that virulence and violence , which many others of that ill body of men judged necessary for their proceedings . chap. xx. pag. . lin . . alderman of england . ] the word alderman , in saxon , ealdorman , hath various acceptions , so as to signifie all sorts almost of governours and magistrates . so matth. . . the princes of the gentiles , in the saxon translation are called ealdormen ; and holofernes , i remember , the general of the assyrian army , is in an old english translation called the alderman of the army . so aethelstan ( whose younger son this ailwin was ) being duke or captain general of the east-saxons is in this book of ramsey styled alderman . the most proper importance of the word bears up with the latin senator , i. e. parliament-man ; as the laws of s. edward make out . in like manner , say they , heretofore among the britons , in the times of the romans , in this kingdom of britanny they were called senators , who afterwards in the times of the saxons were called aldermen ; not so much in respect of their age , as by reason of their wisdom and dignity , in that some of them were but young men , yet were skilled in the law , and beside that , were experienced persons . now that alderman of england , as ailwin here was , had to do in affairs of justice , appears by the foresaid book of ramsey , where it is said , that ailwin the alderman and aedric the kings provost sate judges in a certain court. the alderman of the county our author makes to be the same as the earl or lord of the county , and spelman saith , it is hard to distinguish , but at length placeth him in the middle betwixt the count and viscount . he and the bishop kept court together , the one for temporals , the other for spirituals . the title goes lower still , to denote a mayor or bailiff of a corporation , a bailiff of a hundred , &c. lin. . healf-koning . ] it was an oversight or slip of memory in our author , to say , that ailwin was so called ; when the book of ramsey tells us , it was his father aethelstan , who was of that great power and diligence , that all the business of the kingdom went through his hands , and was managed as he pleased , that had that nick name given him therefore . lin. . the graves . ] our author makes them subordinate to the aldermen of counties : but in the laws of the confessor they appear to be much what the same . there we read , and as they are now called greves , who are put in places of rule over others , so they were anciently among the english called ealdermen . indeed , the word greve or reev ( for it is all one ) is of as various use , as that other of alderman is . in saxon it is gerefa , from gerefen and reafen , to take or carry away , to exact or gather . whence this officer ( graphio or gravius from the saxon ) is in other latin called exactor regius ; and by reason that the sheriff gathered the kings fines and other duties , and returned them to the exchequer , he was called the shire-greve or shire-reev , that is , the gatherer of the county . but the truth is , that greve or reev came at last in general to signifie any ruler or governour set over any place almost whatever ; as the same word grave doth among the dutch. so a shire-greve , or hihgerefa , the high sheriff of a county ; a port-greve , the governour of a city or port. so the lord mayor of london was called formerly . tun-greve , the bailiff of a town or mannor . sometime greve is taken for a count or earl , as alderman is . chap. xxi . pag. . lin . . for toll and gabell . ] in the latin pro theolonio & gablo . now telonium , from the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , properly signifies the place where the officers of the customs receive the kings duties ; but is used also for a duty paid for the maintenance of bridges and river-banks . so hotoman . but in our law it is taken for the toll of a market or fair. and gablum or gabellum , a gabell , from the saxon gafol or gafel , signifies any impost upon goods ; as that in france , upon salt , &c. also tribute , custom , any kind of tax or payment , &c. lin. . through the streets of coventry . ] there is a famous tradition among the people of that town concerning this matter , that the lady being to ride naked , only covered all over with her hair , had given order for the more decent performance of her procession , that all the inhabitants should that day keep their shops and doors and windows shut . but that two men tempted by their curiosity to do what fools are wont to do , had some such penalty , i know not what it was , inflicted upon them , as actaeon had for the like offence . and they now stand in some publick place cut out of wood or stone , to be shewn to any stranger that comes thither , like the sign of the two logger-heads , with the same motto belike , nous sommes trois . pag. . lin . . brought in my court a certain toper . ] in the latin , attulit in curiâ meâ quandam toper . i know what the adverb toper signifies among the ancient latines ; but what the word means here , i confess , i am in the dark . it doth certainly stand for some thing ( i was thinking a taper ) which he brought with him into court , and sware upon it , as he should have done upon the holy gospels . i cannot imagine , that by quandam toper , should be intended some woman or girl , whose name was toper , whom he brought along with him , and in defiance to the court , laying his hand upon her , took his oath as formally , as if he had done it upon the holy evangelists . reader , one thing i forgot to acquaint thee with in the preface , that , whereas the author himself had divided each book into several sections , which were very unequal and incommodious , i thought it much more convenient for thy ease and profit , to distribute them into chapters ; together with the argument or contents of each chapter at the beginning ; and withal , that no one may complain , that i have injured the author , by altering his method , i have left his sections also marked with a numeral note , , , &c. on the side of the inner or outer margin . finis . errata . in the translator's preface , p. . l. . r. ( and hath that of crabbed in it beside ) and as to the method is so intricate . pag. . l. . r. and strifes : p. . l. . r. pieces : p. . l. . r. borderers : p. . l. . for facts , r. toils : p. . l. . r. and money : p. . l. , r. lazzes : p. . l. . r. and breeding : p. . l. . r. peccatum : l. . r. or his eyes : p. . l. . r. quid : p. . l. . r. sorry old verse : p. . l. . r. too truly : p. . l. . r. warden : p. . l. . r. vulgar : l. . r. bestowing her : p. . l. . r. misdemeanour : p. . l. . r. add : p. . l. . r. seasonably : p. . l. . r. glocester . whom : p. . l. . r. strict : p. . l. . r. that in the : p. . l. . r. what. of him : p. . l. . r. him : p. . l. . r. cattle : p. . l. . r. turned : p. . l. . r. retired : p. . l. . r. neptune , as : p. . l. . r. unknown : p. . l. . r. inlagh : p. . l. . r. three things : p. . l. . r. found : p. . l. . r. arrested : p. . l. . r. quilleted . finis . england's epinomis . by john selden , esquire . london , printed for thomas basset at the george in fleetstreet , and richard chiswell at the rose and crown in s. paul's church-yard . mdclxxxiii . to the reader . this appendix or addition to what had been formerly collected by others , of our ancient constitutions , needs no farther recommendation , than the great name and learning of the author : lt was an essay of his younger years , and one of the fruits of his first and earliest inquiries . the reader will here meet with the true original ( as well under the roman , as the saxon and norman governments ) of several of our laws which are now in force , and the mistakes in polydore and others , discovered : the famous constitutions of clarendon ( so much opposed by becket ) faithfully recited , and purged from the errors which had crept into those copies formerly published : an account of the magna charta of king john , and the differences between it and that granted by his son h. . which we have in the fore-front of our printed statutes : a correction of our printed charta de foresta ; with other curious and judicious remarks upon these subjects , not heretofore extant ; which it is not doubted will for their own sake , as well as their authors , find a welcome reception from all knowing persons , especially from the learned professors of our english laws . the contents . chap. i. from the first supposed inhabitants and britains , until julius caesar , page . chap. ii. out of roman histories from julius caesar , to the period of rome's empire in this land , p. chap. iii. the saxons customs and laws ( except what is in lambard's archaeonomy ) during their government , until the normans , p. chap. iv. william the first : but none of that which under title of his laws , is in lambard , p. chap. v. what was received under william le rous , p. chap. iv. henry beauclerc restored , and invented common liberties , p. chap. vii . stephen of blois , p. chap. viii . henry fitz-l'empres , and his clarendon constitutions restored to themselves , and purged from the faults wherewith they have been published , p. assisae henrici regis factae apud clarendon & renovatae apud northamtune , p. chap. ix . richard ceur de lion , p. forma procedendi in placitis coronae regis , ibid. capitula placitorum coronae regis , ibid. capitula placitorum coronae d. regis , p. haec est assisa d. regis , & haec sunt praecepta de forestis suis in anglia facta per assensum & concilium archiepisc. episc. & abbat . comit. & bar. & militum totius regni , p. chap. x. king john and his grand charter , p. consuetudines scaccarii super debitis domini regis inquirendis , ibid. england's epinomis . chap. i. from the first supposed inhabitants and britains until julius caesar. if all published authority were a legitimate brother to truth 's certainty , then could i affirm , that their common father , old time , once saw a samothean race in this isle of britany . the italian-bred - chaldee berosus mentions one samothes , brother to gomer and tubal , of japhet's line , to be author of the celtes , which inhabited ( with other parts of europe ) that of gaule , which we now call la france : and his commentator annius de viterbo thus addeth , samothes fuit frater gomeri atque tubulis ex japete patre , à quo primùm britones , inde galli , samothei dicti fuerunt : & praecipuè philosophi & theologi sectutores ejus . these samotheans , by the testimony of aristotle and secion , divini atque humani juris peritissimi , & ob id religioni deditissimi , & proptereà samothei ( rather semnothei ) appellati , under the providence of these and their race was the law-government of the state , until that trojan celebrated branch , brute , entred the isle : who composed a book intituled leges britonum , collected out of the trojan laws . but to ruminate a little upon that saturnian age , and omit all shadow-fights touching controverted brute ( his supposed existence and fortunes ) it may be not without good reason doubted , whether any such laws of troy were , out of which others might be extracted . nor will they peradventure upon examination ( excepted only some customs of religious rites ) appear more certain in particular , or more true in general , than those of aristophanes his nephelococcygia . times so near the golden age ( when as nec signare quidem , aut partiri limite campum — nec cuiquam ( as seneca hath it ) aut animus aut injuria aut causa ) have left few notes of expresly binding laws , the main government consisting in the arbitrary disposition of those , in whom being chosen as princes for their eminency in justice , and consequently in all other vertues ( as deioces was of the medes ) it was rather an office , th●n a title of dignity , to undergo the style of monarch . and although it be reported in plato , that talus ( 'twixt whom and rhadamanth , the cretique justice was by minos , jupiters own son , then king of crete , divided ) thrice every year did make his circuit , for maintenance of such laws , as were established , and in brazen tables registred ; one of which ( somewhat to particularize ) was an edict against drunkenness in merry meetings ; so that constitutions in written tables may thus derive their pedigree from the most ancient remembrance of grecian discoveries ( ceres and her thesmophoria , with all such like omitted ) yet upon that common epithet of agamemnon in homer , which saluteth him 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. shepherd of the people , where the phrase of jove's free gift to princes and judges of — 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . is very frequent , the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , lex , being long since observed not only to be not found in any of his works , but also to have been of later birth than his age permitted , ( unless the contingency , which 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , coming from the same theme , both by him and hesiod remembred , hath with it , perswade the contrary , and upon the ordinary phrases in virgil of jura vocatis dare populis , and such like , applied to trojan princes ) we may with probability enough conjecture that their laws , being , as the platonists term it , secundae veneris , were alwayes closely folded , rather within the treasury of his breast , which was only therefore greater than other , because he seemed best of them all , than published in enduring tables , to be observed as dumb magistrates ; et quidem initio civitatis ( saith pompinus ) populus sine certâ lege , sine certo jure agere instituit , omniaque manu regis gubernabantur . but from this d●gression into the way again . one of this succession dunvallo molmutius , instituted ( as they write ) ut aratra , templa viaeque ad civitates ducentes immunitate confugii gauderent . verum quia succedente tempore de viis ( cum non essent certis limitibus distinctae ) orta esset dissensio , belinus rex filius praedicti molmutii , ad subducendum omne ambiguum , quatuor regales vias , omni privilegio munitas , per insulam sterni fecit : fossam scilicet , watling streete , erming-streete & ikenild-streete ; which rather ( by camden's judgement ) were the romans works , as out of tacitus , beda , and other testimony he collecteth . hic leges ( meaning dunvallo ) saith jeoffrey of monmouth ) quae molmutinae dicebantur , inter britones statuit , quae usque ad hoc tempus inter anglos celebrantur . statuit siquidem inter caetera , quae multo post tempore beatus * gildas scripsit , ut templa deorum & civitates talem dignitatem haberent , ut quicunque fugitivus sive reus , ad ea confugeret , veniam coram inimico suo haberet . statuit etiam ut viae , quae ad praedicta templa & civitates ducebant , necnon & aratra colonorum , eadem lege confirmarentur . of the gynaecocracy of martia , wife to king guinthelin , a woman very learned , thus speaks the same author ; inter multa & inaudita , quae proprio ingenio invenerat , invenit legem , quam britones martianam vocaverunt . hanc etiam rex aluredus inter caeteras transtulit , quam saxonicâ linguâ marchenlage vocavit ; which name by our great english antiquary , is rather deduced from the mercii , whose limits ( meaepc in saxon signifying a limit ) adjoyned in some part to all the other kingdoms of the germans here established ; and they thence so denominated . i could wish for a sight of jupiter's diphtere , or an oracle from apollo , that so , resolution might be had touching the certainty of these reports , whether fabulous , or sealed with the stamp of a true history . the main authors are that chaldee priest and the arthurian jeoffrey ; both exceedingly suspected , but especially the first , by the penetrating judgements of most learned men . but admitting them , as your mercurial spirit shall move you , you have a fair passage from these mythick reports , selected out of bardish hymns , unto most allowed truths of authentick historians . chap. ii. out of roman histories from julius caesar to the period of rome's empire in this land. jvlivs caesar ( who first of the romans set foot in this little world divided from the greater ) discovered among the gauls their order of government , and form of deciding controversies by law : which was wholly the office of the druides , then being ( as it seems ) the togata militiae of the state. their discipline , he affirms , was first found in this isle , and hence transferred to the old gauls : they hither always sent their youth , as to a seminary of that learning . i. illi rebus divinis ( caesar's words ) intersunt , sacrificia publica ac privata procurant , religiones interpretantur . ii. de omnibus controversiis publicis privatisque constituunt , ( the pontifical colledge of old rome , after the twelve tables received , did as much ) & si quod est admissum facinus , si caedes facta , si de haereditate , de finibus controversia est , iidem decernunt , praemia poenasque constituunt . iii. si quis privatus , aut populus , eorum decreto non stetit , sacrificiis interdicunt : haec poena ( yet it was but like the minor excommunicatio used in the christian church ) apud eos est gravissima . iv. quibus ita est interdictum , ii numero impiorum ac sceleratorum habentur ; ab iis omnes decedunt , aditum eorum sermonemque defugiunt ( these consequents make it as the greater excommunication ) ne quid ex contagione incommodi accipiant : neque iis petentibus jus redditur ( the self same in proportion remains yet with us in practice ) neque honos ullus communicatur . v. druidibus praeest unus , qui summam inter eos habet authoritatem . vi. hoc mortuo , si quis ex reliquis excellit dignitate , succedit ; ac si sint pares plures , suffragio adlegitur . vii . druides à bello abesse consueverunt , neque tributa una cum reliquis p●ndunt ( our clergy in effect hath retained as much ) militiae vacationem omniumque rerum habent immunitatem . viii . such large priviledges occasioned increase of their scholars , qui magnum ( saith he ) numerum versuum ediscere dicuntur . itaque nonnulli annos vicenos in disciplinâ permanent , neque fas esse existimant ea literis mandare , cum in reliquis ferè rebus publicis privatisque rationibus , graecis literis utantur . hence some infer that the tongue of the old gauls was greek , but clearly that the druides wrote in it : i am not perswaded to either . graecae literae is not always latine for the greek tongue ; so might we say , that the syriack testament were perfect hebrew , because literis hebraicis exaratur . as for instruments of commerce written at marsile , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( as strabo reporteth ) it proves only that a greek colony ( for it was from the phocians ) used greek . but caesar also speaks of tables found in the helvetians tents , graecis literis exaratas . we may interpret both for the character only , which perhaps even the graecians thence borrowed . of this place of the druides it is the censure of a great doctor , the learned hotoman , that graecis hath crept in through fault of transcribers ; humeris did in another place in the same caesar so thrust it self unto dextris , as lipsius makes apparent ; who is clear of opinion that the whole context of his commentaries hath suffered much alteration and spoil by julius caesar his interpolation ; nay some think they were never since the first copy his own . but to prove with a forcible argument , think you that greek was so familiar with the druides ? why then did caesar write in greek to cicero , to this end , that neither the carrier , being a gaulenor , nor other of the state , if they were intercepted , might understand them ? to whose hands in time of war should they have come sooner , than to the councils , where the druides were chief ? so much not amiss , because it touches the tongue of the lawyers , used in those times . to the former druidian orders and constitutions are added in pliny , strabo , marcellinus , lucan , tacitus , and others , divers rites of religion and philosophy , which taste much of pythagorean doctrine , worthy of observation , and applicable as well to this isle , as any part of gaul . for as much as not only the infancy of that sect had here its nurture , but also an identity of common-wealth , order , language and religion , between the old gauls , and our britains , is by learned camden with sufficient reasons of strong proof , in his excellent chorography of this country , declared . fit enough therefore is it to conjoyn also the municipals of the gauls , which by the same authority were scarce different from the british . ix . suos liberos nisi cum adoleverint , ut manus militiae sustinere possint , palàm ad se adire non patiuntur . x. viri quantas pecunias ab uxoribus dotis nomine acceperunt , tantas ex suis bonis , aestimatione factâ , cum dotibus communicant ; hujus omnis pecunia conjunctim ratio habetur , fructusque servantur ; uter eorum vitâ superaverit , ad eum pars utriusque cum fructibus superiorum temporum pervenit . xi . viri in uxores , sicuti in liberos , vitae necisque habent potestatem ; here john bodin blames justinian for confining this power only to the romans . xii . cum paterfamilias illustriore loco natus decessit , ejus propingui conveniunt , & de morte , si res in suspicionem venit , de uxoribus in servilem modum quaestionem habent ; & si compertum est , igni ( for a woman to kill her husband is now petit-treason ▪ and she suffers pains of death by fire ) atque omnibus tormentis extruciatas interficiunt . xiii . servi & clientes quos ab iis dilectos esse constabat , justis funeribus confectis , unà cremabantur . xiv . sancitum si quis quid de rep . à finitimis rumore aut famâ acceperit , uti ad magistratum deferat , neve cum quo alio communicet . xv. magistratus , quae visa sunt , occultant , quaeque esse ex usu judicaverint , multitudini produnt . xvi . de repub . nisi per concilium loqui non conceditur . xvii . plerique cum aut are alieno , aut magnitudine tributorum , aut injuriâ potentiorum premuntur , sese in servitutem dicant nobilibus : in hos eadem sunt jura , quae dominis in servos . xviii . armati , ita mos gentis erat , saith livy , in concilium venerunt . xix . in respect of quiet composition of seditious tumults among themselves , made by intercession of their weaker sex , a custome grew among them ( plutarch is my author ) that women also had prerogative in deliberative sessions , touching either peace-government or martial affairs , and sexum ( saith tacitus of the britains ) in imperiis non discernunt . but caesar is not without something , which expresly is attributed to our ancient britains . xx. vtuntur numero aereo aut annulis ( some read laminis ) ferreis , ad certum pondus examinatis . xxi . leporem & gallinam & anserem gustare fas non putant ; haec tamen alunt animi voluptatisque causâ . xxii . vxores habent deni ( no more disparagement be it to them , than the indistinct and open carnal congresse reported of the thuscans , the best part of the old italians , or that of the athenians before the cecropian alteration ) duodenique inter se communes , & maximè fratres cum fratribus , & parentes cum liberis ; sed si qui sunt ex his nati , eorum habentur liberi , à quibus primùm virgines quaeque ductae sunt . howsoever julius his imposed tributes did in some degree diminish their publick liberty ; yet that under him , octavian , tiberius , and caligula , they were , in respect of any state-innovation , attonomoi , i. e. using their own laws , is collected out of dio's roman history . he speaking of plautius ( lieutenant here to the emperour claudius ) his victorious success against togodunus and caractacus , affirms their ancient aristocracy , without subjection to strangers , as yet continuing : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ( saith he ) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. e. they were not free to live at pleasure of the multitude ( not free from superiour government ) but subject to divers kings , so that until that time continuing their plurality of narrow territoried princes , they were truly free from all foreign imposition of laws ; which is expresly affirmed in that of seneca the tragedian , speaking thus of claudius , in the person of octavia his daughter . cuique britanni terga dedere ducibus nostris ante ignoti jurisque sui . but in his time their times changed , a good part of the isle conquered , and into a presidial province reduced . colonia ( so speaks tacitus ) camalodanum ( which was cunobelinus's palace or town-royal , now malden in essex ) valida veteranorum m●nu deducitur , in agros captivos subsidium adversus rebelles , & imbuendis sociis ad officia legum ; the verulanian municipy , celebrated by our noble spenser , and remembred by tacitus , the chief seat of cassibellan , near s. albans in hartfordshire . the roman colonies at york , at chester , ( as by an inscription of an old coin camden testifieth ) at glocester ( proved out of an old stone in bath-walls by the north-gate there thus charged , dec . coloniae glev. vixit lxxxvi ) compared with claudius his former recited , are great testimonies of a great alteration . for although municipes ( as agellius hath it ) sunt cives romani ex municipiis , suo jure & legibus utentes , muneris tantùm cum pop. rom. honorarii participes , yet coloniarum alia , saith he , necessitudo est ex civitate quasi propagatae sunt , & jura institutaque omnia pop. rom. non sui arbitrii habent . both , as well municipies as colonies , had their decuriones , duumviros , aediles , equites , and such like orders , and offices different from all places where the romans as yet had not seated their empire . under some of the succeeding emperors , vespasian , titus and domitian , was julius agricola , father-in-law to tacitus , here roman lieutenant : through whose perswasion to civility , habitus ( writeth the same tacitus among the britains ) nostri honor , & frequens toga . the somewhat younger times also saw papinian , that oracle of the roman laws , discussing at york , as , out of forcatulus , camden hath noted . when commodus had the empire , then was britain's king lucius ( of kings the first christian ) who after the receipt of that holy token of regeneration , from eleutherius bishop of rome , made a second demand , which by the pope's returned answer you shall the better understand : petistis ( so was his rescript , and , juraque ab hâc terrâ , caetera terra petet , was ovid's prophecy ) à nobis leges romanas & caesaris , vobis transmitti , quibus in regno britanniae uti voluistis . leges romanas & caesaris enim nuper miseratione divinâ in regno britanniae , & fidem christi habetis penes vos in regno , utramque paginam : ex illis dei gratiâ , per concilium regni vestri sume legem , & per illam dei patientiâ vestrum reges britanniae regnum ; vicarius verò dei estis in regno . what the sequel hereof was , thus only appears : that after he had in lieu of the archflamens at london , york and caer-leon , constituted three archbishops , with twenty-eight bishops in other places , making large gifts of possessions to their churches , ecclesias ( matthew the monk of westminster speaks it ) cum suis coemeteriis ( if we may believe that then there were with us church-yards for burials ) ita constituit esse liberas , ut quicunque malefactor ad illa confugeret , illaesus ab omnibus remaneret , with which the british constitutions and customs have here their last limit . chap. iii. the saxon customes and laws ( except what is in lambard's archaeonomy ) during their government , until the normans . italy had at length so much to do in defence of her self , that she could hardly afford help to others . gothick incursions grew so violent and dangerous , the picts and scots were as troublesome to the britains , who desiring aid of the romans , were in their expectations frustrate : to provide therefore some other way ( vortigern being then king ) martial succour against the neighbour violence of the northern people of this island was requested , and obtained from germany . thence hither issued saxons , jutes ( some will have the old name vites ) and angles : which differed more in name , than nation , and are in good authors but synonymies of the same countrey-people . these in process of time , contrary than the britains first hoped , established to themselves in divers parts of that we now call england , several kingdomes , extruding vortigern's posterity , and their subjects , into the western parts , where to this day they remain . and how can we but conjecture that of particular customes of law-government in their own countrey , they made requisite use in this their part of the island ? what those were , until christianity made some abolition , may best be observed out of tacitus de moribus germanorum ; who relates divers of their customes , and rites religious . but at inquisition of their superstition we aim not ; their profane laws being chiefly proposed for collection . i. rex vel princeps ( saith tacitus , speaking of some of them , whose antique reliques seem yet to continue in our municipals ) prout aetas cuique , prout nobilitas , prout decus bellorum , prout facundia est , audiuntur authoritate suadendi magis quam jubendi potestate : si displicuit sententia , fremitu aspernantur ; sin placuit , frameas ( of necessity you must here remember our wapentakes ) concutiunt . honoratissimum assensûs genus est armis laudare . ii. licet apud concilium accusare quoque ; & discrimen capitis intendere . distinctio poenarum ex delicto , proditores & transfugas arboribus suspendunt , ignavos & imbelles & corpore ( lipsius will have it torpore , and shews great reason for it , in love towards his own countrey ) infames coeno ac palude , injecta insuper crate mergunt . diversitas supplicii illuc respicit , tanquam scelera ostendi oporteat dum puniuntur , flagitia abscondi . iii. levioribus delictis pro modo poenarune , equorum , pecorumque numero convicti multantur . pars mulctae regi vel civitati , pars ipsi qui vindicatur , vel propinquis ejus exolvitur . iv. eliguntur in iis conciliis & princeps , qui jura per pagos vicosque reddunt . centeni singulis ex plebe comites ( which observe to symbolize with our hundreds ) consilium simul & authoritas adsunt . v. nihil neque publicae neque privatae rei nisi armati agunt , sed arma sumere non ante cuiquam moris , quam civitas suffecturum probaverit . tum in ipso concilio vel principum aliquis , vel pater , vel propinquus , scuto frameäque juvenem ornant . haec apud illos toga , hic primus ( here have you resemblance of our knighting ) juventae honos : ante hoc domus pars videntur , mox reipublicae . vi. insignis nobilitas aut magna patrum merita , principis dignationem etiam adolescentulis assignant . note there the propagation of gentry through true honour deserving vertue , to whose memory is dedicated that worship , which is oft-times bestowed on unworthy posterity . vii . dotem non uxor marito , sed uxori maritus ( i might compare this to our most ancient and then common dower al huis d'esglise ) offert . viii . to their religious rites in marriage-knots he adjoyns the punishment of her which violates her chosen bed . accisis crinibus nudatam coram propinquis expellit domo maritus , ac per omnem vicum verbere agit . ix . publicatae pudicitiae ( understand it of unmarried wenches ) nulla venia , non formâ , non aetate , non opibus maritum invenerit . x. sororum filiis idem apud avunculum , qui apud patrem honor . xi . haeredes , successoresque sui cuique liberi , & nullum testamentum : si liberi non sunt , proximus gradus in possessione fratres , patrui , avunculi ; neither until h. . had we any lands devisable , except by special custome binding the common-law . xii . suscipere tam inimicitias seu patris seu propinqui ( our northern deadly-feud offers it self here to be thought on ) quam amicitias necesse est ; nec implacabiles durant . luitur enim etiam homicidium certo armentorum ac pecorum numero ( this interprets the were in the saxon laws of william lambard ) recipitque satisfactionem universa domus . xiii . suam quisque servus sedem , suos penateis regit . frumenti modum dominus aut pecoris aut vestis ut colono injungit ; & servus hactenus paret . divers others of their manners and customes hath the same author ; but not any , which except these recited , i think may be fitly styled law , or constituted order of that nation . but to be more particular , adam of breme will tell us out of einhard of the saxons ( which gave chief denomination to such germans as floated hither ) thus ; xiv . quatuor differentiis gens illa consistit , nobilium scilicet & liberorum , libertorumque atque servorum . xv. legibus firmatum ut nulla pars copulandis conjugiis propriae sortis terminos transferat ; sed nobilis nobilem ducat uxorem , & liber liberam , libertus conjungatur libertae , & servus ancillae . si vero quispiam horum sibi non congruentem , & genere praestantiorem duxerit uxorem , cum vitae suae damno componat . xvi . ejus gentis cum quâ bellandum fuit ( this is by tacitus in the same words repeated of the germans ) quoquo modo interceptum ; cum electo popularium suorum patriis quemque armis committunt , & victoria hujus vel illius pro praejudicio accipitur . xvii . unto the times before christianity among them was received , this is to be referred ; the first christian king ethelbert of kent , inter caetera ( as venerable bede reporteth ) bona , quae genti suae consulendo conferebat , etiam decreta illi judiciorum juxta exempla romanorum , cum consilio sapientum instituit . quae conscripta anglorum sermone , hactenus , saith he , habentur & observantur ab eâ . and very many constitutions yet extant , written in the saxon tongue , are attributed to ine , alfred , edward , athelstan , edmund , edgar , ethelred and canutus or knute , translated into latine , and published long since by william lambard , a learned gentleman , with the laws of edw. the confessor , so called , non quod ille statuerit , saith one , sed quod observaverit ; whereunto are joyned divers , with title of william the conqueror , which being so there already , according to several times in one volume for that only purpose compiled , they only shall here be inserted , which as yet lie dispersed in the old monuments of our historians . xviii . totius angliae ( of king alured so writeth ingulphus abbot of croyland ) pagos & provincias in comitatus primus omnium commutavit , comitatus in centurias , i. e. hundredas , & in decimas ( as if he imitated jethro moses father-in-law ) id est , tythingas , divisit , ut omnis indigena legalis in aliquâ centuriâ & decimâ existeret . et si quis suspectus de aliquo latrocinio , per suam centuriam vel decuriam , vel condemnatus , vel * invadiatus , poenam demeritam vel incurreret , vel vitaret . praefectos verò provinciarum ( qui antea vicedomini ) in duo officia divisit , i. e. in judices , quos nunc justiciarios vocamus , & in vicecomites , qui adhuc idem nomen retinent . xix . of king edgar , the monk of malmesbury writeth thus ; quia compatriotae in tabernis convenientes , jamque temulenti pro modo bibendi contenderent , ipse clavos argenteos vasis affigi jussit , & dum metam suam quisque cognosceret , non plus subserviente verecundiâ , vel ipse appeteret , vel alium appetere cogeret . constraint of such as were too indulgent to the desires of their sensual appetite by ingurgitation of brain-smoaking liquors , was by the greek zaleucus ( and so received among the locrians ) no less than capital . but which hath been always so far from this state , that until the third session of the present parliament , not so much as any pecuniary mulct endeavoured to refrain that temporary and altogether voluntary madness . xx. nulla ( saith ingulphus ) electio praelatorum erat merè libera & canonica , sed omnes dignitates , tam episcoporum quam abbatum , per annulum & baculum regis curia pro suâ complacentiâ conferebat . xxi . chirographa , until the confessor's time , fidelium praesentium subscriptionibus , cùm crucibus aureis , aliisque sacris signaculis firma fuerunt . xxii . conferebantur primò ( saith he , but i understand it of the infancy of the norman state ) multa praedia nudo verbo absque scripto , vel chartâ ; tantum cum domini gladio , vel galea , vel cornu , vel cratere , & plurima tenementa cum calcari , cum strigili , cum arcu , & nonnulla cum sagittâ . this somewhat savours of obertus orto's form of investiture in his feudals , or his of this , and differs much from our strict livery of seisin , which regularly ought to be made with part of and upon the land , by gift transferred . not unworthy ( in this place ) of observation is that charter of cedwalla king of sussex , ( as among old monuments of evidence belonging to the arch-bishop of canterbury i have seen ) in the year dclxxxvii . made to theodore then archbishop of certain lands , with this subscription ; ad cumulum autem confirmationis , ego cedwalla cespitem terrae praedictae super sanctum altare salvatoris posui , & propriâ manu , pro ignorantia literarum , signum sanctae crucis expressi , & subscripsi . the like hath camden out of a patent made by withered king of kent , to a nunnery in the isle of thanet . but to that form of conveyance which ingulphus speaks of , is thus added ; sed haec initio regni sui : posterioribus annis immutatus est iste modus . the antiquity of deeming the queen , both as covert , and also a sole person , with such respective admittance , as is commonly agreed upon , and the custome of land-forfeiture upon felony committed , are both referred to these times . the first proved by that learned chief justice sir edw. coke , out of a gift made by aethelswith , wife to king burghred , to one cuthwulfe her servant dccclxviii . the other from an example by him published of one ethesig , whose lands were forfeited to king ethelred , for feloniously stealing one ethelwine's swine . chap. iv. william the first : but none of that which under title of his laws , is in lambard . no sooner was the norman william circled with the crown of his victory , but i. decrevit subjectum sibi populum ( my author is gervase of tilbury ) juri scripto legibusque subjicere . propositis igitur legibus anglicanis secundùm tripartitam earundem distinctionem , hoc est merchenlage ( this govern'd the shires of glocester , worcester , hereford , warwick , oxford , chester , shropshire , and stafford ) westsaxenlage ( hereby were ordered kent , sussex , surry , barkshire , hamshire , wiltshire , somerset , dorset and devonshire ) and danelage ( by it york , darby , nottingham , leicester , lincoln , northampton , bedford , buckingham , hartford , essex , middlesex , norfolk , suffolk , cambridge , and huntingdon ) quasdam reprobavit , quasdam autem approbans illis transmarinas neustriae ( that is normandy corruptly for westriae , the opposite to that other part of the division of france , eustrasia ) leges , quae ad regni pacem tuendam efficacissimè videbantur : which was not performed without earnest and most humble request of the english. for , as honouring with respect the northern stock , whence his blood was derived , the danelage he preferred , as worthier and better for government than the mere english. but seeming at first inexorable , the perswasive remembrance of his soul , which bequeathed him the kingdom , and whose laws they desired , being , as the best supposed motive , inserted in the petitions of the conquered , he granted so much , that from that time veneratae per universam angliam , corroboratae & observatae sunt , prae caeteris patriae legibus , leges edwardi regis , quae priùs inventae ( it is roger of hoveden's report ) & constitutae erant in tempore edgari avi sui . ii. fecit describi omnem angliam , ( the substance hereof is in most of the monkish histories , but florence of worcester is the author i now use ) quantum terrae quisque baronum suorum possidebat , quot feudatos milites , quot carucas , quot villanos , quot animalia ; imò , quantum vivae pecuniae quisque possidebat in omni regno suo , à maximo usque ad minimum , & quantum redditûs quaeque possessio reddere poterat . this inquisition was returned into his exchequer , and is a book at this day there remaining , pro sua generalitate omnia tenementa totius terrae integrè continente : it is called domesday , i. e. the day of judgment , as the abbot of crowland , and gervase of tilbury have left written , ob hoc ( saith gervase ) nos eundem librum judiciarium nominamus , non quòd in eo de propositis aliquibus dubiis feratur sententia , sed quod à praedicto judicio non liceat ullâ ratione discedere . a description of it in an old english historical poet , is thus clad in rhythmes . the k. william vor to wite the worth of his londe let enqueri streitliche thoru al engelonde , hou moni plou lond , and hou moni hiden also were in euerich sire , and wat hii were wurth yereto : and the rents of each toun , and of the waters echone , that wurth , and of woods eke , that there ne bileued none , but that he wist wat hii were wurth of al engelonde , and wite al clene that wurth thereof ich understond and let it write clene inou , and that scrit dude iwis in the cresorie at westminster there it yut is . so that vre kings suth , when hii ransome toke and redy wat folc might giue , hii fond there in yor boke . nor a much unlike description in later times under hen. . ( as a preparatory to the levying of that intolerable demanded subsidy of dcccl ) was either finished or attempted : as by a warrant from the commissioners directed to a constable of a hundred , with charge of information , reported by j. stow , is more largely declared . iii. of church-livings and ecclesiastical fees matthew paris hath thus recorded ; episcopatus & abbatias omnes , quae baronias tenebant , & eatenus ab omni seculari libertatem habuerant , sub servitute statuit militare , in rotulans singulos episcopatus & abbatias , pro voluntate suâ , quot milites sibi & successoribus suis , hostilitatis tempore , voluit à singulis exhiberi . iv. exclusis haereditate avita anglis , agros ( learned camden hath delivered it ) & praedia militibus suis assignavit , ità tamen ut dominium directum sibi reservaret , obsequiumque clientelari jure sibi & successorib●s devinciret : id est ut omnes in feodo , sive fide teneret , & nulli praeter regem essent veri domini , sed potius fiduciarii domini , & possessores . v. gervase of tilbury in a discourse of the trial of the purity of silver paid in ancient time into the exchequer by weight , affirmeth that by tradition it was received for truth , that in primitivo regni statu , post conquisitionem , no rents were paid to the crown in money : sed sola ( saith he ) victualia solvebantur , ex quibus in usus quotidianos domus regiae necessaria ministrabantur : and somewhat after , tot● igitur willielmi primi tempore perseveravit haec institutio usque ad tempora regis henrici filii ejus ( which was henry the first ) adeò ut viderim ego ipse ( he lived under henry the second ) quosdam , qui victualia , statutis temporibus , de fundis regiis , ad curiam deferebant . certum quoque habebant officiales domus regiae , à quibus comitatibus triticum , à quibus diversae species carnium , & equorum pabula debebantur . his verò solutis secundum constitutum modum cujusque rei , regii officiales computabant vicecomitibus , redigentes in summam denariorum , pro mensurâ videlicet tritici ad panem centum hominum , solidum unum , pro corpore bovis pascualis solidum unum , pro ariete vel ove iv. denarios , pro prebendâ xx. equorum similiter iv. denarios ; but through the grievous complaints of country husbandmen , oblatis vomeribus in signum deficientis agriculturae , respective calculation was made under henry beauclerc , and every particular tenants services reduced to a certainty of silver , de summa vero summarum quae ex omnibus fundis surgebat in unoquoque comitatu , constituerunt vicecomitem illius comitatus ad scaccarium teneri , addentes ut ad scalam solveret . more special form whereof the same author hath largely reported . vi. chirographa chartas vocabant , & chartarum firmitatem cum cereâ impressione per uniuscujusque speciale sigillum sub instillatione trium vel iv. astantium , conficere constituebant . vii . anglicum idioma tantum abhorrebant , quod leges terrae statutaque anglicorum regum gallicâ linguâ tractarentur ( pleadings until reformation in time of e. . remaining in the same tongue ) & pueris etiam in scholis principia literarum grammatica gallicè ac non anglicè traderentur . modus etiam scribendi anglicus omitteretur , & modus gallicus in chartis & in libris omnibus admitteretur : thus to be frenchified grew so common , and before all english titles so respectfully alone honoured , that vlstan prelate of worcester in the red king's time , was for his ignorance in that tongue chiefly deposed from his bishoprick . viii . cervum vel capreolum capienti oculi eruebantur . ix . the law of coverfeu ( the name yet remaineth ) that by ringing a bell at night , all lights and fire in every house should retire from our appearance , acknowledgeth him as first institutor . x. si aliquis quempiam ( it is in henry of huntingdon ) quâcunque de causâ peremisset , capitali subjacebat sententiae . xi . si aliquem ( i would read it aliquam , perswaded by what i find in bracton's treatise of rape ) vi oppressisset , genitalibus privabatur armis . xii . if we durst believe the italian polydore , here should succeed an institution of sheriffs , and trial by jury of xii . touching the last , camden and lambard out of the saxon laws of etheldred , have convinced him of an error too fairly flourished with braving terms . for the first , and both since them the right h. the l. coke . but what else he hath of any probability you thus receive . xiii . constituit ut quater quotannis in multos dies conventus celebrarentur eo loci quo ipse fieri juberet , quibus in conventibus judices sedibus discreti forum agerent , jusque populo dicerent . xiv . alios instituit judices , qui sine provocatione jurisdictionem ac judicia exercerent , à quibus , uti à sinu principis , cuncti litigatores eò confluentes jura peterent , & ad eos suas controversias referrent . xv. praefectos alios constituit , qui maleficia vindicanda curarent . hos justiciarios pacis nuncupavit . yet i cannot so soon think that name to be literally so ancient under his favour , with whom too curious in a strange state , the kind laws of religious hospitality may without injustice dispense . chap. v. what was received under william le rous. vain it were to expect any good constitutions of william the second , omnis legum siluit justitia , causisque ( saith florence of worcester ) sub justitio positis ; sola in principibus imperabat pecunia . i. polydore attributeth to him the original of that custome , whereby his successors claim profits or first-fruits of vacant bishopricks and monasteries of the patronage of the crown . indeed it is true and apparent , that he had a special gift of delaying new elections for prorogation of his gains . and at his death were in his hands the temporalties of canterbury , winchester and salisbury , and of abbies that number quadrupled . ii. publico ( writeth he ) edicto vetuit unumquemque sine commeatu suo ex angliâ egredi . that archbishop anselme was enjoyned under no small pain , that he should not pass the seas , to visit pope vrban under this prince , is true and plain enough ; but for any such general edict , i know no better authority , his being in this , as in other things , suspicious : as yet my belief is , that the constitution of non aler ouster le mere , is of some later birth . iii. venationes quas rex primo ( the words are malmesburies , but read primus ) adeò prohibuit , ut capitale esset supplicium prendisse cervum . chap. vi. henry beauclerc restored and invented common liberties . reformation was needful by the succeeding beauclerc , of the common injustice practised throughout the kingdom , especially by a delegation of exacting authority made to one ranulph , afterwards bishop of durham , by le rous : and was thus endeavoured . immediately after his coronation charters of state-amendment were by publick authority sent into every county with particular customs expressed , allowed , abrogated or altered in them . that which was directed to hugh of bockland , sheriff of hereford , reported by matthew paris , after church-liberty confirmed , ita quod nec eam vendam , nec ad firmam ponam , nec mortuo archiepiscopo , vel episcopo , vel abbate , aliquid accipiam de domino ecclesiae , vel de hominibus , donec successor in eam ingrediatur , thus provides for the subject ; omnes malas consuetudines , quibus regnum angliae injuste opprimebatur , inde aufero : quas malas consuetudines in parte hic pono . i. si quis baronum meorum , comitum , vel aliorum qui de me tenent , mortuus fuerit , haeres suus non redimet terram suam sicut facere consueverat tempore patris mei , sed justâ & legitimâ relevatione relevabit eam . ii. homines baronum meorum legitimâ & justa relevatione relevabunt terras de dominis suis. iii. si quis baronum , vel aliorum hominum meorum , filiam suam tradere voluerit , sive sororem , sive neptem , sive cognatam , mecum inde loquatur ; sed neque ego aliquid de suo pro hac licentia accipiam , neque desendam quin eam det , excepto si eam dare voluerit inimico meo . iv. si mortuo barone vel alio homine meo filia haeres remanserit , dabo illam cum consilio baronum meorum cum terra suâ . v. si mortuo marito uxor ejus remanserit , & sine liberis fuerit , dotem suam & maritagium habebit , dum corpus suum legitimè servabit . : & eam non dabo nisi per secundum velle suum , & terrae liberorum custos erit sive uxor , sive alius propinquior , qui justus esse debet . vi. praecipio ut homines mei similiter se contineant erga filios & filias & uxores hominum suorum . vii . monetagium commune quod capiebatur per civitates vel comitatus , quod non fuit tempore ed. r. hoc ne amodò fiat , omninò defendo . viii . si quis captus fuerit , sive monetarius sive alius , cum falsâ monetâ , justitia recta inde fiat . ix . si quis baronum vel hominum meorum infirmabitur , sicut ipse dabit , vel dare jusserit pecuniam suam , ita datam esse concedo ; quod si ipse , praeventus vel armis vel infirmitate , pecuniam suam nec dederit , nec dare disposuerit , uxor sua sive liberi , aut parentes , & legitimi homines sui pro animâ ejus eam dividant , sicut eis melius visum fuerit . somewhat later times admitted the disposition of intestates goods , and probate of testaments , to be in episcopal jurisdiction . john stratford in one of his provincial constitutions of church-liberty , and fairefax a common lawyer under richard the third , affirm that power in ecclesiastick courts to have been in ancient time ( for the civil law it self in express text refers it to the lay magistrate ) by act of parliament ordained . x. si quis baronum , vel hominum meorum , forisfecerit , non dabit vadium in misericordiâ pecuniae suae , sicut faciebat tempore patris vel fratris mei ( they were the two precedent williams ) sed secundum forisfacturae modum , nec ita emendabit sicut emendasset retro tempore patris mei vel fratris . xi . si perfidiae vel sceleris convictus fuerit , sicut culpa sic emendet . xii . forestas communi consilio baronum meorum in manu mea ita retinus , sicut pater meus eas habuit . xiii . militibus , qui per loricas terras suas defendunt ( i. e. which hold their lands per fee de hauberke , to be ready in a coat of mail for martial service ) terras dominicarum carucarum suarum quietas ab omnibus geldis & omni proprio dominio meo concedo , ut , sicut tam magno gravamine alleviati sunt , ita equis & armis benè se instruant , ut apti & parati sint ad servitium meum , & ad defensionem regni mei . xiv . lagam regis edwardi vobis reddo , cum illis emendationibus quibus pater meus eam emendavit ( you have them in lambard ) consilio baronum suorum . thus far out of that transcribed charter . xv. rapinas curialium , furta , stupra , edicto compescuit , deprehensis oculos cum testiculis evelli praecipiens . william of malmsbury is hereof author ; but florence of worcester , and roger of hoveden , that for theft his punishment was , as now by hanging , death ; but for maintenance of malmesbury's report , i remember a miracle reported out of a manuscript in fox his ecclesiastical history , of one edward of king's weston in bedfordshire , attainted in time of henry fitz l' empres , for stealing a pair of hedging gloves , and a whetstone , and having by execution lost his eyes and genitals , had through devout prayer at tho. becket's shrine in canterbury , restitution ( i fear the monk that wrote it , might have had a whetstone without stealing ) of whatsoever members and faculties were by that inflicted punishment , taken from him . xvi . contra trapezitas ( quos vulgò monetarios vocant ) praecipuam sui diligentiam exhibuit ; nullum falsarium quin pugnum perderet impune abire permittens , qui fuit intellectus falsitatis suae commercio fatuos irrisisse : this falsifying of money by hoveden , was loss of our eyes and genitals : gemiticensis and the monk which made the continuance to florence of worcester , agreeing to malmesbury in this , that the offenders lost their right hands ; but further adding that , which the first god of the gentiles was compelled to endure , deprivation of his external parts of humane propagation . xvii . statuit ut nullus obolus ( the author is roger of hoveden ) quos & rotundos esse jussit , aut etiam quadrans , si integer esset , respueretur . xviii . mercatorum falsam ulnam ( malmesbury speaks ) castigavit brachii sui mensurâ adhibitâ , omnibusque per angliam propositâ . xix . curialibus suis ubicunque villarum esset , quantum à rusticis gratis accipere , quantum & quoto pretio emere debuissent , edixit , transgressores vel gravi pecuniarum mulctâ , vel vitae dispendio afficiens . xx. much stir both at rome and in england was touching investiture of bishops and abbots by lay hands : anselme , arch-prelate of canterbury mainly opposing himself against it ; whose perswasion so at length wrought with the king , that it was permitted ut ab eo tempore in reliquum ( matthew of westminster after others reports it ) nunquam per donationem baculi pastoralis vel annuli quisquam de episcopatu vel abbatiâ , per regem , vel quamlibet laicam personam , investiretur in anglia ; retento tamen electionis & regalium privilegio ; notwithstanding this in the year m.c.vii . per annulum & baculum ( as matthew paris tells us ) was by the same henry one rodolph made arch-bishop of canterbury . xxi . he restored ( john stow now speaks to you ) to his subjects the use of lights in the night , which lights , and also fire , had been forbidden by his father to be used , after the ringing of a bell at eight of the clock at night . xxii . fecit omnes milites angliae crines suos ad justum modum abscindere , qui priùs longitudine capillorum ( out of flores historiarum ) cum foeminis certabant . xxiii . a tribute of s. of every hide was exacted for augmentation of a dowry for the kings daughter mawde ' , to be married to the emperour henry the fourth : whereupon , saith polydore , secuti sunt istud institutum quaerendarum dotum ad collationem filiarum , caeteri deinde reges , adeo posteritas suorum commodorum tenax semper fuit ; referring that known service of ayde à file marrier , to this as the first example thereof ; though the antiquity of that custom can reckon as many years as since romulus his first institution of patrons and clients ( whence feuds and courts-baron , as udalricus zasius conjectureth , by way of imitation , proceeded in following times ) and no less the whole title thereof . and the other à faire fitz chevaler , & de rançome , are in the old graund custumier of normandy . xxiv . imminent peril was then , lest french conspiracies should get violent possession of the dutchy of normandy ; to prevent it with a sinewy army , primùm omnium populo imponit ( take it upon polydore's credit ) grave tributum causâ novi belli gerendi , id quod apud posteriores reges in consuetudinem venit . of the norman line masculine he was the last ; and this the last , i make of his laws . chap. vii . stephen of blois . crashing of armour and pronouncing of laws , have such antipathy , that his injurious successor , stephen of blois will put us to the charge of small room . at his inauguration , by oath he confirmed divers generalities for liberties , from ancient time used , of the church , but so religiously , that , as one saith of him , he seemed to have therefore only sworn , that he might be forsworn . but of them one was especially thus : i. si quis episcopus vel abbas vel alia ecclesiastica persona , ante mortem suam rationabiliter sua distribuerit , vel distribuenda statuerit , firmum manere concedo : si vero morte praeoccupatus fuerit , pro salute animae ejus ecclesiae consilio ( see before in the ninth of henry beauclerc ) eadem fiat distributio . ii. castella per singulas provincias ( saith william of newborough ) studio partium crebro surrexerant ; erantque in angliâ quodammodo tot reges , vel potius tyranni , quot domini castellorum , habentes singuli percussuram proprii numismatis , & potestatem subditis regio more dicendi juris . iii. danegeldum ( which how it was first rated and imposed , you may find in the confessor's laws ) quod antecessores sui accipere solebant singulis annis , in aeternum condonabat . henry of huntingdon and roger of hoveden affirm it . iv. an ecclesiastical synod was held at london under theobald of canterbury , the king and noblemen being also present , totumque illud concilium novis appellationibus infrenduit . in angliâ namque appellationes in usu non erant , donec eas henr. wintoniensis episcopus , dum legatus esset ( which was about this time ) malo suo crudeliter intrusit . v. tempore regis stephani ( as i read in john of salisbury's polycraticon ) à regno jussae sunt leges romanae , quas in britanniam domus venerabilis patris theobaldi , britanniarum primatis asciverat ; ne quis libro etiam retineret edicto regio prohibitum est . what the roman laws ( if you understand the imperials ) had ever to do with this state as a rule for squaring our judgements , is not only by this relation made manifest , but by an express assertion of the high court of parliament ( which wrought wonders ) under richard of burdeaux ; whenas thomas of woodstock , duke of glocester , richard earl of arundel , thomas beauchamp earl of derby , and thomas earl of nottingham , appealed alexander nevill arch-bishop of york , robert de vere duke of ireland , michael de la poole earl of suffolke , with others , of seducing the kings facile humour to their own desires , the particulars whereof appear in the thirty eight articles comprehended in the parliament rolls of the eleventh of his reign ; advice being demanded touching the formality of the appeal both of common lawyers and civilians , they all agreed , — that it was insufficient in both laws ; but answer was given by the baronage , that they would adjudge it by parliamentary authority ; neither would they be directed by the civil law , pur ceque la royalme d' angleterre n'estoit devant ces heures , ny à l' entent de nostre dit seigneur roy , & seigneures du parliament unq ' ne serra rules ne governes per la ley civil : and by judgement of exile with effect they proceeded : but this is somewhat out of the lists . chap. viii . henry fitz-l'empres , and his clarendon constitutions restored to themselves , and purged from the faults wherewith they have been published . adoption and right of bloud gave , after stephen 's death , the crown to henry plantagenet fitz l'empres ; his first care tending wholly to the good of the state , was to have the numerous increase of castles and forts ( which in his predecessors time through multitude of province-tyrants , whom they nourished , were swollen to the number of m.c.xv. ) abated ; so was it by express command performed , and the laws of his grand-father beauclerc likewise confirmed . a recognition also was made at clarendon , praesidente joanne de oxoniâ , de mandato ipsius regis , praesentibus etiam archiepiscopis , episcopis , abbatibus , prioribus , comitibus , baronibus & proceribus regni , of divers customes and rites of government for decision of no small controversies between the king , guarded with stout maintainers of his crown , and the prelates , who in their ambitious aims laboured for exemption of their persons , habits and possessions , from secular jurisdiction . i. de advocatione & praesentatione ecclesiarum ; si controversia emerserit inter laicos , vel inter laicos & clericos , vel inter clericos , in curiâ d. r. tractetur & terminetur . ii. ecclesiae de feudo d. regis non possunt imperpetuum dari absque assensu & concessione ipsius . iii. clerici rectati & accusati de quâcunque re , summoniti à justitiâ regis , venient in curiam ipsius responsuri ibidem de hoc , unde videbitur curiae regis quod ibi sit respondendum , & in curiâ eccles. unde videbitur quod ibi sit respondendum , ita quod justitia regis mittet in curiam s. e. ad videndum quâ ratione ibi res tractabitur . iv. si clericus convictus vel confessus fuerit , non debet eum de caetero ecclesia tueri . v. archiepiscopis , episcopis & personis regni non licet exire regnum absque licentiâ d. regis : & si exierit ( here is the true root of the old restraint from passing the seas without licence ) si regi placuerit , assecurabunt eum quòd nec in eundo nec in redeundo , vel moram faciendo , perquirent malum sive damnum d. regi . vi. excommunicati non debent dare vadium ad remanentiam , nec praestare juramentum , sed tantum vadium & plegium standi judicio ecclesiae , ut absolvantur . vii . laici non debent accusari nisi per certos & legales accusatores & testes in praesentiâ archiepiscopi , vel episcopi ; ita quod archidiaconus non perdat jus suum nec quicquam quod inde habere debeat . viii . si tales fuerint qui culpantur quod non velit vel non audeat aliquis eos accusare , vicecomes requisitus ab eo faciat jurare xii . legales homines de vicineto , seu de villâ coram episcopo , quod inde veritatem secundum conscientiam suam manifestabunt . ix . nullus qui de rege tenet in capite nec aliquis dominicorum ministrorum , sub interdicto ( that is a censure ecclesiastical , whereby the administration of sacraments is prohibited in some particular place , or among some certain persons ) ponatur ; nisi prius dominus rex , si in terrâ fuerit , conveniatur , vel justitia ejus , si fuerit extra regnum : & rectum de ipso faciat , & ita ut quod pertinebit ad regiam curiam , ibidem terminetur , & de eo quod spectabit ad ecclesiasticam curiam , ad eandem mittatur , ut ibidem tractetur . x. de appellationibus , sicubi emerserint , ab archidiacono debent ad episcopum , & ab episcopo ad archiepiscopum , & si archiepiscopus defuerit in justitiâ exhibendâ , ad d. regem perveniendum est postremo , ut praecepto ipsius in curiâ archiepiscopi terminetur controversia : ita quod non debet ulterius procedere absque assensu d. regis . xi . si calumnia emerserit inter clericum & laicum , vel inter laicum & clericum , de ullo tenemento quod clericus velit ad eleemosynam trahere , laicus verò ad laicum feudum , recognitione xii . legalium hominum per capitalis justitiae regis considerationem terminabitur , utrum tenementum sit pertinens ad eleemosynam sive ad feudum laicum , coram ipsa justitia regis ; et si recognitum fuerit ad eleemosynam pertinere , placitum erit in curiâ ecclesiasticâ ; si vero ad laicum feudum , nisi ambo tenementum de eodem episcopo vel barone advocaverint , erit placitum in curiâ regiâ ; sed si uterque advocaverit de feudo illo eundem episcopum vel baronem , erit placitum in curiâ ipsius , ità quod propter factam recognitionem seisinam non amittat qui prius seisitus fuerat , donec per placitum disrationatum sit . xii . qui de civitate vel castello vel burgo vel dominico manerio d. regis fuerit , si ab archidiacono vel episcopo super aliquo delicto citatus fuerit , unde debeat eis respondere , & ad citationes eorum satisfacere noluerit , bene liceat eum sub interdicto ponere ; sed non debet excommunicari , priusquam capitalis justitia d. regis villae illius conveniatur , ut justiciet eum ad satisfactionem venire ; et si justitia r. inde defecerit , ipse erit in misericordiâ d. r. & exinde poterit episcopus eum accusatum ecclesiasticâ justitiâ coercere . xiii . archiepiscopi , episcopi , & universae personae regni qui de rege tenent in capite , & habent possessiones suas de d. rege , sicut baroniam , & inde respondent justiciis & ministris regis , & faciunt omnes rectitudines & consuetudines regias , sicut barones caeteri , debent interesse judiciis curiae d. regis cum baronibus suis , usque perveniatur ad diminutionem membrorum vel ad mortem . xiv . cum vacaverit archiepiscopatus vel episcopatus vel abbatia , vel prioratus de dominio regis , debet esse in manu ipsius , & inde percipiet omnes redditus & exitus , sicut dominicos ; et cum ventum fuerit ad consulendum ecclesiae , debet d. rex mandare potiores personas ecclesiae ; & in capellâ ipsius regis debet fieri electio , assensu d. regis , & consilio personarum regni quas ad hoc faciendum vocaverit , & ibidem faciet electus homagium & fidelitatem d. regi , sicut ligio domino , de vitâ suâ , & membris , & de honore suo terreno , salvo ordine suo , priusquam sit consecratus . xv. si quisquam de proceribus deforciaverit archiepiscopo , episcopo vel archidiacono , de se vel de suis justitiam exhibere , rex debet justitiare . xvi . si forte aliquis deforciaverit d. regi rectitudinem suam , archiepiscopus , episcopus , & archidiaconus debent eum justitiare , ut regi satisfaciat . xvii . catalla eorum qui sunt in regis forisfacto , non detineat ecclesia , vel coemeterium contra justitiam regis , quia ipsius regis sunt , sive in ecclesiis , sive extra fuerint inventa . xviii . placita de debitis quae fide interposita debentur , vel absque interpositione fidei , sint in curia regis . xix . filii rusticorum non debent ordinari absque assensu domini , de cujus terrâ nati dignoscuntur . different in particulars of no slight moment are the reported clarendon constitutions in the greater history of matthew paris , first published ( as i think ) by that reverend father matthew parker , arch-bishop of canterbury , whose archetype , as it was transcribed by a countrey vicar , and delivered to the printer's hands ( i have part of that transcript to witness it , in mine own hands ) is but equal in every iota to the published copy : but as they are here written i have seen them added , without discrepancy of a syllable , at the end of the life and death of st. thomas of canterbury , drawn in ancient hand , and out of a quaternity of former authors , herbert of doseham , william a monk of canterbury , john of salisbury and alan abbot of teukesbury , into a just volume collected : huic libello nostro ( saith the author , that you may know what work they make here ) inserere studuimus funestum illud & famosum decreti chirographum , consuetudines ( viz. ) illas regias apud clarendonam promulgatas , quas ideò hic interseruimus , ut legant secula post futura , & hinc cognoscant quàm justa , quàm perspicua fuerit gloriosi neomartyris thomae , primò exilii & pòst martyrii causa . what contention ( after confirmation by oath of the whole baronage ) grew hereupon 'twixt the king and that canonized arch-bishop , is in every chronologer of those times enough declared . but it cannot be ungratefully received , if both for respect to an old english endeavouring wit , and also for matter , form and phrase of relation , out of robert of glocester , be made this superaddition . no man ne might thenche the love that there was bitwene the k. h. and the gode man s. thomas ; the diuel had enui therto , and set bitwen them feu , alas , alas thulke stond , vor all to well it greu . uor there had ere ibe kings of luther dede as w. bastard , and his son w. the rede . that luther laws made inou , and held in al the lond the k. uold not beleue the lawes that he fond , ne that his elderne bulde , ne the godeman s. thomas thought that thing age right neuer law uas . ne sothnes and custom mid strength up ihold , and he wist that vre dere lourd in the gospel told that he himselfe was sothnes , and custum nought , theruore luther custumes he uould graent nought . ne the k. uould bileue that is elderne ad ihold , so that conteke sprung bituene them manifold . the k. drou to right law mani luther custume , s. thomas thom withsed , and granted some . the lawes that icholle now tell he granted vawe . zuf a yuman hath a sone to clergi idraw he ne sall without is lourdes icrouned nought be , uor yuman ne mai nought be made agen is lourds will free . in the eighteenth of clarendon customs is the substance of this particular ; wher 's rusticorum interpreted yumen in this poet , is mentioned : to both , as a synonymy , is homines used as well in the law-annals of later times , and in writs of ven. fac . xii tam milites quam alios liberos & legales homines de vicineto , &c. as in older constitutions before expressed . gemen is the common allowed saxon root , whence our now usual name of yeoman had his beginning : but my conceit with a painted imposture deceives me , if the ancient latin be not father of both , but in a dialect different . nor let it be a fault ad appios & coruncas redire , some taste in yeomen is of homines , but more of hemones ; which in ennius and festus , is not otherwise significant , than themen in english , altered only in character in gemen the saxon word . but to my law-rhythms again ; another thing he granted eke as ye mow nouise ; yuf a man of holi chirch hath eni lay fee ; parson , other what he be , he ssal do therevore kings service that there ualth , that is right ne be vorlore , in plaiding and in assise be and in judgement also . bote war man ssal be bilemed , other to deth ido . he granted eke yuf eni man the kings traitor were , and eni man is chateux to holi chirch bere that holi chirch ne solde nought the chateux there let that the k. there other is as is owne is ne wette . uor all that the felon hath the kings it is and eche man mai in holi church is owne take iwis . he granted eke that a chirche of the kings fe in none stede ene and ever ne ssold igiue be as to hous of religion , without the kings leve , and that he other the patron the gift first gave . s. thomas granted well these and other mo , and these other he withsede that did him well woe . i. yuf bituene twei leud men were eni striving , other bituene a leud and a clerc , for holi chirch thing , as vor vouson of chirch whether shold the chirch give , the k. wold that in his court the ple ssold be driue ; uor as much as a leud man that the o parti was chanliche was under the k. & under no bishop nas . what he styles lewedmen , is by our common phrase lay-men , leudes in the old teutonique and saxon ( as 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in greek from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. e. a stone , referred , as pindar hath it , to that mythick instauration of hard mankind by deucalion and pyrrha ) is equivalent to the multitude or common people , in the present english. for yef a priest be foule , on whome we trust , no wonder is a leude man to rust . but then the ignorant are by it noted , rather than who are not clerks ; for the same jeoffrey in another place saith , this every leud uicar and parson can say . robert of glocester speaks again : ii. another was no bishop , ne clerc nathe mo , ne ssolde without kings leue out of this lond go . and than hii ssolde suere upe the boke ywis . that hii ne sold purchas no uvel the k. ne none of is . iii. the thrid was yuf eni man in mausing were ibrought , and suth come to amendment , ne age were nought , that he ne suore up the boc , ac borowes find solde to stand to that holy chirch there of him toky wold . iv. the verth was that no man that of the k. huld ought in cheife or in eni servise in mausing were ibrought , bote the wardeins of holy chirch that brought him thereto , the k. sede or is bailifes wat be ad misdo , and loked verst were thei to amendment it bring , and vote hii wolde by their leue do the mausing . v. the vist was , that bishoprikes and abbeis also that vacans were of prelas in the k. hand were ido , and that the k. sold all the land as is owne take , uort at last that him lust eni prelat there make . and than thulke prelat sould in is chapel ichose be . of is clarks which he wuld to such prelate bise . and than wan he were ichose in is chapel right there , homage he solde him do ar he confirmed were . vi. the sixt was yuf eni play to chapitle were idraw , and eni man made is appele , yuf me dude him unlaw , that to the bishop from ercedeken is appele sold make , and from bishop to arcebissop and suth none other take , and but the ercebissops court to right him wold bring , that he sold from him be cluthe bivore the king. and from the k. non other mo so that attan end plaining of holi chirch to the k. shold wend. and the k. amend solde the ercebissops dede , and be as in the popes stede , and s. thomas it withsede . vii . the seuenthe was that plaiding that of det were to yeld wel thoru truth iplight , and nought ihold nere althei thoru truth it were , that ple sold be ibrought bivore the k. and is bailies and to holy chirch nought . viii . the eighth was that in the lond citation none nere thoru bull of the pope of rome , and clene bileued were . ix . the nithe was that peters pence that me gadereth manion the pope nere nought on isend , ac the k. echone . x. the tethe was yuf eni clarke as felon were itake , and vor felon iproved and ne might it not forsake , that me sold him verst disordein and suth thoru there law , and thoru judgement of the land hong him other to draw . uor these and vor other mo the godeman s. thomas fleu verst out of englond and eke imartred was , uor he sei there uas bote o way , other he must stiffe be , other holy chirch was isent , that of right was so fre . absolution of the prelates oath , which among others confirmed what he soon made retractation of , was obtained from alexander the third , bishop of rome ; who gave an insolent repulse to the kings ambassadors , sent for his ratification of that which the baronage had thus concluded . the king herewith exceedingly provoked , made present dispatch of letters to every sheriff in the kingdom , thus pronouncing ; xix . praecipio tibi , quod si aliquis clericus , vel laicus in ballivâ tuâ , romanam curiam appellaverit , eum capias & firmiter teneas , donec voluntatem meam praecipiam ; & omnes redditus clericorum archiepis●opi , & possessiones seisias in manum meam , & omnium clericorum qui cum archiepiscopo sunt , patres , matres , fratres , sorores , nepotes , & neptes pones per salvos plegios , & catalla eorum , donec voluntatem meam inde praecipiam . et hoc breve tecum afferas cùm summonitus fueris . xx. si quis inventus fuerit ferens literas d. papae ( this is spoken of before in my poet ) vel mandatum , aut thomae archiepiscopi , continens interdictum christianitatis in angliâ , capiatur & retineatur , donec inde voluntatem meam praecipiam . but in the annals of roger of hoveden , dedo sicut de regis traditore & regni , sine dilatione justitia fiat . xxi . promulgation also , by way of prohibition , was made of most of the former diminutions of papal or episcopal authority : the clergy-men , that were beyond sea , under forfeiture of their livings , were charged , by summons in their places of due residence , to return . xxii . londoniensis & norwicensis episcopi summoneantur , & sint coram justitiariis regis ad rectum faciendum , quod contra statuta regni interdixerunt terram comitis hugonis , & in ipsum sententiam anathematis intulerunt . xxiii . denarii s. petri colligantur & custodiantur . xxiv . in the th of his reign at nottingham , celebravit ( saith hoveden ) magnum concilium de statutis regni sui , & coram rege filio suo , & coram archiepiscopis , episcopis , comitibus & baronibus regni sui communi omnium consilio divisit regnum suum in vi. partes , per quarum singulas tres justitiarios itinerantes constituit ; here was the infancy of that form of circuits by justices in eyre , whose names and described limits my author in a sexpartite division hath remembred . et postea ( you hear him again ) fecit d. rex omnes praedictos justiciarios jurare super sacrosancta evangelia , quod ipsi bonâ fide & sine malo ingenio , has subscriptas assisas custodirent , & inviolabiliter ab hominibus regni facerent custodiri ; the subscribed articles with this title thus he hath recorded : assisae henrici regis factae apud clarendon & renovatae apud northamtune . xxv . si quis rectatus fuerit coram justiciis d. regis de murdro , vel latrocinio , vel roberia , vel receptatione hominum tale facientium , vel de falsoneria , vel iniquâ combustione , per sacramentum xii . militum de hundredo , & si milites non adfuerint ( i here understand by milites no other than such as were fendatorii , or held of some superior by knight's service , thereby distinguished from milites solidarii or servientes , i. e. hired soldiers , and both from the name of dignity used in ceremonious chivalry far separated ) per sacramentum xii . liberorum & legalium hominum , & per sacramentum iv. hominum de unaquâque villa hundredi , eat ad judicium aquae ( i. e. to the watry ordeal , described with the fiery in lambard 's exposition of words before his saxon laws , and in the antiquities of the church of britany , published , as i suppose , by matthew parker archbishop of canterbury ) & si perierit , alterum pedem amittat ; and apud northamtvne additum est pro rigore justitiae , quod dexterum similiter pugnum cum pede amittat , & regnum abjuret & infra xl. dies à regno exulet ; et si ad aquam mundus fuerit , inveniat plegios , & remaneat in regno , nisi ●ectatus fuerit de murdro vel aliquâ turpi feloniâ per commune comitatus & legalium militum patriae : de quo , si praedicto modo rectatus fuerit , quamvis ad aquam mundus fuerit , nihilominus infra xl. dies à regno exeat , & catalla sua secum asportet , salvo jure dominorum suorum , & regnum abjuret in misericordia d. regis . xxvi . nulli liceat , neque in burgo , neque in villa , hospitari aliquem extraneum ultra unam noctem in domo sua , quem ad rectum habere noluerit , nisi hospitatus ille essonium rationabile habuerit , quod hospes domus monstret vicinis suis , & cum recesserit , coram vicinis recedat & per diem . xxvii . si quis seisitus fuerit de murdro , vel de latrocinio , vel roberia , vel falsoneria , & inde sit cognoscens , vel de aliqua alia felonia , quam fecerit , coram praeposito hundredi , vel burgi , & coram legalibus hominibus , id posteà coram justitiis negare non poterit . et si idem sine seisina coram eis aliquid hujusmodi recognoverit , hoc simul coram justitiis negare non poterit . xxviii . si quis obierit francus tenens , haeredes ipsius remaneant in tali seisina , qualem pater suus habuit die qua fuit vivus & mortuus , de feodo suo , & catalla sua habeant unde faciant divisam defuncti , & dominum suum posteà requirant , & ei faciant de relevio & aliis , quae eis facere debent de feodo suo . xxix . si haeres fuerit infra aetatem , dominus feodi recipiat homagium suum , & habeat in custodiâ illum quamdiu debuerit ; alii domini , si plures fuerint , homagium ejus recipiant , & ipse faciat eis quod facere debuerit . xxx . vxor defuncti habeat dotem suam , & partem de catallis ejus quae eam contingit , which by the law in those days was a third part , if the dead had left issue , but a moity , if he were 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . xxxi . si dominus feodi negat haeredibus defuncti seisinam ejusdem jeodi quam exigunt , sustitiarii d. regis faciant inde fieri recognitionem per xii . legales homines , quatem seisinam defunctus inde habuit die qua ficit vivus & mortuus ; this is the very mortdancester ; et sicut recognitum fuerit , ita haeredibus ejus restituant ; & si quis contrà hoc fecerit & inde attaintus fuerit , remaneat in misericordiâ regis . xxxii . justitiae domini regis faciant fieri recognitionem de disseisinis factis super assisam , à tempore quo d. rex venit in angliam proximo post pacem factam inter ipsum & regem filium suum . xxxiii . justitiae capiant fidelitates d. regis infra claus. pasch. & ad ultimum infrà claus. pentecost . ab omnibus videlicet comitibus ; baronibus , militibus & liberè tenentibus , & etiam rusticis qui in regno manere voluerint ; & qui facere ●oluerit fidelitatem , tanquam inimicus d. regis capiatur . xxxiv . habent etiam justitiae praecipere quod omnes illi qui nondum fecerunt homagium & ligeantiam d. regi , quod ad diem , quem eis nominabunt , veniant & faciant regi homagium , & ligeantiam , sicut ligeo domino . xxxv . justitiae faciant omnes justitias & rectitudines spectantes ad d. regem , & ad coronam suam , per breve domini regis , vel illorum qui in loco ejus erunt , de feodo dimi●û milit . & infrà ( if the account of a knights fee be by the annual value , then confidently according to the quadruple proportion of the known relief , you may affirm it , by xx l. lands ; and so likewise by comparison with soccage payment upon the stat. of west . . for aid , a fair fitz chivalier , or a file marryer ; but by a calculation prefixed to the red book of the exchequer , dclxxx . acres make exactly the summe ) nisi tam grandis sit querela , quod non possit deduci sine d. rege , vel talis quam justitiae ei reponent pro dubitatione suâ , vel ad illos qui in loco ejus erunt ; intendant tamen pro posse suo ad commodum d. regis faciendum . xxxvi . faciant assisam de latronibus iniquis , & malefactoribus terrae quae assisa est , per concilium regis , filii sui , & hominum suorum ; per quos ituri sunt comitatus . xxxvii . justitiae provideant quod castella diruta prorsus diruantur , & diruenda benè prosternantur ; et nisi hoc fecerint , d. rex judicium curiae suae de eis habere voluerit , sicut de contemptoribus praecepti sui . xxxviii . justitiae inquirant de escaetis , de ecclesiis , de terris , de foeminis quae sunt de donatione d. regis . xxxix . ballivi d. regis respondeant ad scaccarium , tam de assiso redditu , quam de omnibus perquisitionibus suis , quas faciunt in balliviis suis , exceptis illis quae pertinent ad vicecomitatum . xl. justitiae inquirant de custodiis castellorum , & qui , & quantum , & ubi eas debeant , & postea mandent d. regi . xli . latro , ex quo capitur , vicecomiti tradatur ad custodiendum , & , si vicecomes absens fuerit , ducatur ad proximum castellanum , & ipse illum custodiat donec illum liberet vicecomiti . xlii . justitiae faciant quaerere per consuetudinem terrae , illos qui à regno recesserunt , & nisi redire voluerint infra terminum nominatum , & stare ad rectum in curiâ regis , postea ut lagentur , & nomina ut lagorum afferantur ad pascha , & ad fest. s. mich. ad scaccarium , & exinde mittantur d. regi . while thus the king made provident order for lay-business , hugo à petra leonis , the pope's legate in england , laboured for dila●ation of church ; to whom was granted by the king : xliii . quod de caetero clericus ( matthew paris his report ) non trahatur ante judicem secularem personaliter , pro aliquo crimine vel transgressione , nisi pro forestâ & laico feudo , unde regi vel alii d. seculari laicum debetur servitium . xliv . vt archiepiscopatus , episcopatus , vel abbatiae , non teneantur in manu regis ultra annum , nisi pro causâ evidente , vel necessitate urgente . xlv . vt interfectores clericorum convicti vel confessi , coram justiciario regni , praesente episcopo puniantur . xlvi . quod clerici duellum facere non cogantur . xlvii . statuit apud woodstock , quod quicunque forisfecerit ei de forestâ suâ , semel de venatione suâ , de ipso salvi plegii capiantur ; & si iterum forisfecerit , similitèr capiantur de ipso salvi plegii ; si autem tertiò idem forisfecerit , nulli plegii capiantur , sed proprium corpus forisfactoris : which concludes what of his laws common histories afford . chap. ix . richard ceur de lion. this henry's successor was the stout richard ceur de lion : himself in person attending the eastern wars . division by his commission was made for maintaining the laws and customes of the kingdom , of the whole government , 'twixt hugh of pusar , bishop of durham , and william bishop of ely , lord chancellor . the stream of all , howsoever there was an association of hugh bardulph and william briwere , was carried as the prelates pleased , until their ambitious insolency made a period to their too great authority . after his return justices in eyre were sent into every county , & secundùm subscriptorum formam capitulorum ( saith hoveden ) processerunt in justiciis exequendis . forma procedendi in placitis coronae regis . i. inprimis eligendi sunt iv. milites de toto comitatu ; qui per sacramentum suum eligant ii. legales milites de quolibet hundredo , vel wapentacco . et illi ii. eligant super sacramentum suum x. milites de singulis hundredis , vel wapentaccis● ; vel si milites defuerint , legales & liberos homines , ità quòd illi xii . insimul respondeant de omnibus capitulis de toto hundredo vel wapentacco . capitula placitorum coronae regis . ii. de placitis coronae novis & veteribus , & omnibus quae nondum sin● finita , coram justiciariis d. regis : iii. item de omnibus recognitionibus & omnibus placitis , quae summonita sunt coram justiciariis per breve regis , vel capitalis justitiae , vel à capitali curiâ regis coram eis missa . iv. item de escaëtis , quae sunt & quae fuerunt postquam rex arripuit iter versus terram jerusalem , & quae fuerunt tunc in manu regis , & sunt modò in manu ejus , vel non ; & de omnibus escaëtis domini regis , si à manu sua sint remotae , quomodò , & per quem , & in cujus manus devenerunt , & qualitèr & qui exitus inde habuerit , & quos , & quid valuerint , & quid modò valeant , & si aliqua eschaëta sit , quae ad d. r. pertineat , quae in manu ejus non sit . v. item de ecclesiis quae sunt de donatione d. regis . vi. item de custodiis puerorum quae ad d. regem pertinent . vii . item de malefactoribus & eorum receptoribus & eis consentientibus . viii . item de maritagiis puellarum vel viduarum , quae ad d. regem pertinent . ix . item de falsonariis . x. item de interfectoribus judaeorum , qui sint , & qui vadii judaeorum interfectorum , & catallis , & terris , & debitis , & chartis , & quis ea habuerit , & quantum eis debuerit , & quae vadia habuerint , & quis ea teneat , & quantum valeant , & quis exitus inde habuerit , & quos : & omnia vadia & debita judaeorum interfectorum capiantur in manum reg. & qui ad occisionem judaeorum fuerant , & non fecerunt sinem cum d. r. vel justitiariis suis , capiantur , & non deliberentur nisi per d. r. vel justitiarios suos . xi . item de omnibus auxiliis datis ad redemptionem domini regis ( which were for his ransome out of the hands of the emperour henry ......... to whom limpold duke of austri● , who took him prisoner , had sold him and amounted to cxl . marks of silver ) quis quantum promiserit , & quantum reddiderit , & quantum aretro sit . xii . item de fautoribus comitis johannis ( it was his brother who affected the english diadem , in the time of richard 's captivity ) qui finem fecerunt cum d. rege & qui non . xiii . item de catallis comitis johannis , vel fautorum ejus , quae ad usum d. regis non sunt conversa , & quantum vicecomites receperunt , vel ballivi sui , & quis aliquid contra antiquas consuetudines regni dederit . xiv . item de omnibus terris comitis johannis , de dominicis & wardis , & escaetis , & de donis suis ; & quâ de causâ data sunt ei illa dona , & omnia dona comitis johannis capiantur in manum regis , praeterquam illa quae per regem confirmata sunt . xv. item de debitis & fi●ibus quae debentur comiti johanni & quâ de causâ , & omnia exigantur ad opus d. regis . xvi . item de foeneratoribus & eorum catallis , qui mortui sunt . for by an old law of the confessor , usury under pain of loss of the offender's substance , is forbidden . xvii . item , de vinis venditis contrà assisam , & de falsis mensuris , tam vini quam aliarum rerum . xviii . item de cruciatis mortuis ante iter suum arreptum versus jerusalem , & quis eorum catalla habuerit , & quae , & quanta . xix . item de magnis assisis , quae sunt de centum solidatis terrae , & infrà . xx. item de defaltis . xxi . praetereà in quolibet comitatu eligantur . milites , & unus clericus , custodes placitorum coronae , & nullus vicecomes sit justitiarius in vicecomitatu suo , nec in comitatu , quem tenuerit post primam coronationem d. regis . annexed is to all these an intricate kind of inquisition , appropriated to that time , of the kings profits in wards , and escaets , with farms , and other country-commodities , which would receive larger place here , than the inconveniency demands . xxii . omnia debita & vadia judaeorum imbrevientur , terrae , domus , redditus & possessiones . judaeus vero , qui aliquid horum celaverit , sit in forisfacturâ d. regis de corpore suo , & concelamento , & de omnibus possessionibus suis , & omnibus catallis suis , nec unquam concelamentum judaeo recuperare licebit : with particular form of place and persons , where , and before whom this imposition might be performed . xxiii . for especial exercise in chivalry , that practice might breed skill , and both alacrity to arms , he instituted by grant , torneaments , but not without certain restraints ; as by his charter thereof made to hubert archbishop of canterbury , and reported in the red book of the exchequer , is thus apparent ; sciatis nos concessisse , quod torneamenta sint in angliâ , in quinque plateis inter sarum & wilton , inter warwick & kelingworth , inter stamford & walingford , inter brakeley & mixeber , inter bly & tikehill : ita quod pax terrae meae non infringatur , nec de forestis nostris damnum inferatur . et comes , qui ibi torniare voluerit , dabit nobis xx. marcas ( understand it of silver ) & baro x. marcas ; & miles , qui terram habuerit , iv. marcas , & qui non habuerit , ii. marcas . nullus autem extraneus ibi torniabit ; unde vobis mandamus quod ad diem torneamenti habeatis ibi ii. clericos , & ii. milites vestros , ad capiendum sacramentum de comite & barone , quod vobis de praedictâ pecuniâ ante torneamentum satisfacient ; & quod nullum torniare permittant , antequam super hoc satisfecerit ; et x. marcas pro cartâ ad opus nostrum capiatis , unde comes sarum & comes de clara & comes de warrena plegii sunt . teste meipso apud villam episcopi , xxii . die augusti . first use of these torneaments was ( as william of newborough delivereth ) in the time of stephen , prohibited under henry fitz-l'empres , and by this lyon-hearted prince , to martial honor , restored . xxiv . praecepit , quod omnes , qui chartas habebant , venirent ad novu● sigillum suum ( this new seal was , after the old lost , with one roger , the king's vice-chancellor , drowned in the cyprian sea ) ad chartas suas r●novandas . xxv . constitutum est , quod omnes mensurae totius angliae sint ejusdem quantitatis , tam de bladis , quam de leguminibus & de rebus consimil●bus ; scilicet una bona summa aequi : & haec mensura sit rata , tam in civitatibus & burgis quam extra ; mensura etiam vini & cerevisiae , & cunctorum liquorum , sit ejusdem quantitatis , secundum diversitatem liquorum ; pondera etiam & librae , & caeterae pesiae , sint ejusdem quantitatis in toto regno , secundum diversitatem mercaturarum . xxvi . mensuris bladorum & liquorum , vini & cerevisiae , inclaventur claves , ne per dolum possint falsari . xxvii . lanei panni , ubicunque fiunt , fiant de eâdem latitudine , scilicet de duabus ulnis infra lisuras , & ejusdem bonitatis in medio & in lateribus . xxviii . eadem ulna sit in toto regno , & ejusdem quantitatis , & ulna sit ferrea . xxix . ne quis mercator praetendat seldae suae rubros pannos , vel nigros , vel scuta , vel aliqua alia , per quae visus emptorum saepe decipiuntur , ad bonum pannum eligendum . xxx . nulla tinctura vendenda , nisi solummodò nigra , nec fiat ( so i distinguish the words ) alicubi in regno , nisi in capitalibus civitatibus , aut burgis iv. aut vi. legales homines de ipsâ villâ secundùm quantitatem villae ; similiter , in vicecomitatu ; aut cum praepositis civitatis aut burgi , si in manu vicecomitis non fuerint , assignentur ad assisam custodiendam ; scilicet sub hâc formâ , ut ipsi videant & certi sint quod omnia vendantur , & emantur per eandem mensuram , & omnes mensurae sint ejusdem quantitatis , secundùm diversitatem mercium . xxxii . the punishment of the offenders , was corpora eorum capiantur , in carcerem detrudantur , & omnia quae ipsius sunt , ad fisci commodum , seisiantur . xxxiii . if the instituted comptrollers fail in that trust committed to them , de catallis suis in misericordia regis remaneant . xxxiv . an aid of s. the hide , was taken through the kingdom : for collection were commissions granted , and power of conventing the land tenants , and charging them by oath to make true report of hides in every mannor ; ad poenam verò juratorum , qui aliquid contra juramentum suum celaverint in hoc negotio , statutum erat , quod quicunque rusticus convictus fuisset de perjurio , daret domino meliorem bovem de carucâ suâ , & insuper responderet de proprio ad opus d. regis , tantum pecuniae , quantum fuisset declaratum per suam perjuriam fuisse celatum . si verò liber homo ( by the opposite of the title ( rusticus ) i conceive generally tenants in ancient demesne , which are not allowed the addition of freeman , and copyholders ) convictus fuisset , esset in misericordià regis , & insuper refunderet de proprio , ad opus d. regis , quantum fuerit per eum celatum , sicut & rusticus . xxxv . statutum fuit , quod quilibet baro cum vicecomite faceret districtiones super homines suos , & , si per defectum baronum , districtiones factae non fuissent , caperetur de dominico baronum quod super homines suos restaret reddendum , & ipsi barones ad homines suos inde caperent : & libera feoda ecclesiarum parochialium de hoc tallagio excipiebantur , & omnes excaet . baronum quae fuerunt in manu domini regis , communicaverunt . xxxvi . serganteriae d. regis , quae non erant de feodis militum , excipiebantur : take it of graund or petit serjeanty , and it fully accords with some term books , of later times allowed , and published . capitula placitorum coronae d. regis , whereof hugh bardulph , roger arundel , and geffrey harset , justices in eire through the northern parts , held plea. xxxvii . de omnibus assisis , & de magnis assisis , usque ad x. libratas terrae , & infrá . xxxviii . de advocationibus ecclesiarum , & capiantur coram eis electiones magnae assisae per mandatum d. regis , vel ejus capitalis justittae . xxxix . de ecclesiis vacantibus vel non vacantibus , quae fuerunt de donatione d. regis . xl. de excaetis d. regis . xli . de donationibus & de valectis , & puellis , quae sunt , vel esse debent , in donatione d. regis , & de valentiis terrarum suarum , & si quis eorum vel earum sit maritatus , & inquiratur cui , & per quem , & à quo tempore . xlii . quae viduae non finierunt pro se maritandis , & finis capiatur ad opus d. regis . xliii . de serganteriis d. regis , quis ea habet , & per quem , & quantum valent , & qui finem non fecerunt ad auxilium domini regis ( look before in art . xxxvii . ) & qui fecerunt , & finis capiatur . xliv . de usuris christianorum , & eorum catallis , qui sunt mortui . xlv . de illis , qui sunt in misericordiâ regis , & non amerciati . xlvi . de purpresturis d. regis . xlvii . de viis d. regis estreciatis . xlviii . de thesauris inventis . xlix . de malefactoribus & eorum receptoribus . l. de fugitivis retatis , reversis post ultimam assisam . li. de omnibus ponderibus , & mensuris , & ulnis renovatis , & si iv. homines ( refer hither the xxxii . article ) qui sunt attornati ad haec custodienda in unaquâque villâ , fecerint quod inde statutum est , & si attachiaverint transgressores illius assisae , & si non attachiaverint , prout debent , puniantur sicut ipsi transgressores . lii . totum vinum illius qui vendidit contra assisam , capietur ad opus d. regis , & praetereà dominus vini & venditores , sint in misericordiâ regis . liii . of defaults in the commissioners , appointed for levying the aids . liv. de custodibus portuum maris , si quid receperunt quod non reddiderunt , & si mercedem aliquam receperunt pro jure regis retinendo , & si quis aliquid receperit , qui non fuerit ad hoc attornatus . the justices of the forest , h●gh of nevill chief justice , hugh wac , and ernise of nevil made their circuits , authorised by the king's commission ; that in every county , where they were to pass , they should call before them ad placita forestae , archbishops , bishops , earls , barons , all free-holders , the chief of every town , and iv. yeomen ad audienda praecepta regis . haec est assisa d. r. & haec sunt praecepta de forestis suis in anglia , facta per assensum & consilium archiepiscop . & episc . & abbat . comit. & bar. & militum totius regni . lv. that none should trust , in hope of easie composition for offences , touching venison , or other matters of the forest , but that justice should be done to the convict , qualis facta fuit tempore henr. avi patris d. regis ( viz. ) ut amittant oculos & testiculos . lvi . that none presume to keep bowes , arrowes , grey-hounds , or other dogs in the king's forest , nisi habeant ipsum r●gem ad warrantum suum , vel aliquem alium , qui eum possit inde warrantizare . lvii . quod nullus donet vel vendat aliquid ad destructionem bosci sui , vel ad wastum quae sit infrà forestam regis , sed concedit bene quod capiant de boscis suis quod necesse eis fuerit , sine wasto , & hoc per visum forestarii sui & viridariorum suorum . lviii . quod omnes illi , qui boscos habent infrà metas forestae d. regis , ponant idoneos forestarios in boscis suis , de quibus forestariis ipsi , quorum bosci fuerint , sint plegii , vel tales inveniant plegios idoneos , qui possunt emendare , si forestarii in aliquo forisfecerint , quod d. regi pertineat . lix . that the king's foresters take special survey , lest other mens woods , intrà metas forestae , be destroyed ; & sciant benè illi , quorum bosci fuerint , quòd de ipsismet , vel de eorum terris , capietur emendatio , & non de alio . lx. quod sui forestarii jurent , quod secundùm omne posse suum , tenebunt ejus assisam , qualem eam fecit de forestis suis , & quòd non vexabunt milites , neque probos homines , de hoc quod d. rex iis concessit de boscis eorum . lxi . that in every county , where he hath venison , there be placed xii . milites , ad custodiendam venationem suam & viride in forestis suis , & quod iv. milites ponantur ad adgistandos boscos suos , & ad recipiendum pannagium suum , & custodiendum & defendendum . lxii . quod nullus adgistet boscos suos infra metas forestae ( i think you had need translate metas into regard oft-times among these orders ) antequam bosci eorum adgistentur ; et est sciendum quod incipit adgistamentum d. regis xv. dies ante festum s. michaëlis ; & durat xv. dies post festum s. michaëlis . lxiii . si forestarius ejus habet in custodiâ suâ dominicos boscos regis , & bosci illi destructi fuerunt , & non possit nec sciat justam causam monstrare , quare bosci destruantur , nihil aliud capiatur de forestario illo , nisi proprium corpus suum . lxiv . if any clergyman offend in the forest , non dubitent forestarii in eos manus imponere , ad eos resistendos & capiendos , ipse enim eos inde warrantizabit . lxv . that every three years view be taken of all assarts , as well new as old , and of all purprestures , and of all wasts of the woods , and that they be severally inrolled . lxvi . that archbishops , bishops , barons , knights , freeholders and all yeomen of the land , appear at the summons magistri forestarii sui , ad placitanda placita de forestis suis. lxvii . ne aliqua caretta exeat chiminum in forestâ regis , neque porci sint in forestâ regis tempore de foinesun , ( it is now à foetatione , called the fence , or rather the fawnes month ) scilicet xv. diebus antè nativitatem s. joannis baptistae , & xv. diebus post idem festum . lxviii . who so shall offend in taking the king's venison , and be thereof attainted , shall have judgment of loss of his eyes and genitals ; qui autem forisfecerit in forestâ regis de viridi , sive per culpaturam , sive per esbrancaturam , sive per foditionem turvarum , sive per escoriationem morae , sive per culpationem de subvemore , sive per essartum , sive per novam purpresturam ; per sepem , vel fossatam ; vel per * remotionem molendini , vel cursus aquae , vel bercariae ; vel aliarum domorum , vel per foenum falcandum extra sepes vel extra fossata ; erit in misericordiâ regis de pecuniâ suâ , nisi habeat viridarios , vel forestarios regis ad warrantum . lxix . similiter qui arcus vel sagittas portaverint vel canes duxerint sine copulâ per forestam regis , & inde attaintus fuerit , erit in misericordiâ regis . lxx . videnda sunt in reguardo nova assarta & vetera inbladata post ultimum reguardum , & quo blado vel legumine inbladata sunt . lxxi . nova assarta in manu regis , si vetera assarta inbladata sunt de frumento vel siligine , unaquaeque acra dabit regi xii . denarios de illâ vestiturâ , & si inbladata fuerint de avenâ , vel hordeo , vel fabis vel pisis , vel alio legumine , unaquaeque acra dabit regi vi. denarios de illâ vestiturâ ; et sciendum est quod tempore henrici regis f. mat. imp. permissum erat intrà metas forestae fossata fieri loco sepium . lxxii . exiit edictum à rege , ut quicunque in regno suo forisfecisset clerico , aut alii viro religioso , non cogeretur satisfacere illi : sed si clericus , aut alius vir religosus , forisfecisset alicui laico , statìm compelleretur ad satisfaciendum illi : unde factum est quod viri religiosi ad redemptionem coacti sunt : the main end of all was exchequer profit ; which this richard too much labouring for by published edicts at home , and contending for by arms abroad , at length lost it , and together unluckily his life . chap. x. king john and his grand charter . the burden of the state after richard's death , was laid upon his brother john earl of moreton . he in the immediate times after his inauguration , made divers laws , touching sale and prices of french wines , reported in roger of hoveden's annals . but all conveniency of merchandize and they were so incompetible , that they were almost as soon abrogated , as enacted . consuetudines scaccarii super debitis d. r. inquirendis . i. statutum est in angliâ , & per praeceptum r. joannis confirmatum , quod nullus vicecomes recipiet aliquem ad praesentationem baronis in seneschallum , qui non possit respondere de misericordiâ pertinente ad transgressionem fidei , si fortè in eam inciderit . quod autem seneschallus ad praesentationem baronis , quod pacem faciat vicecomiti de debitis domini sui ad scaccarium , intelligendum est quod super computum vicecomitis mittatur in prisonam statutam , secundum legem scaccarii , & debitum regis capiatur de catallis domini sui , secundum legem scaccarii : quod si fidem praestitam non servaverit , ita quod ad computum vicecomitis non venerit , vel si venerit & sine licentiâ recesserit , corpus ejus capiatur , & in prisonam ponatur statutam , nec deliberetur nisi per speciale mandatum d. regis . item mittatur ad terram domini cujus seneschallus defecerit , & de catallis suis solvatur pecunia quae debetur , secundum legem scaccarii , & si pecunia illa debeatur pro fine terrae , & catalla non inveniantur , unde pecunia illa solvatur , ipsa terra , pro quâ finis facta fuit , capiatur in manum d. regis , & teneatur donec illa pecunia solvatur , secundum legem scaccarii . ii. in poenâ laesionis fidei , seneschallus , qui finem transgressus fuerit , nunquam de hoc vel de alio debito per fidem suam credatur , vel recipiatur , nec dominus credatur , vel recipiatur de hoc debito , nisi de gratiâ & voluntate regis , secundum legem & consuetudinem scaccarii . iii. fecit ( not long after ) generalitèr acclamari , ut legalis assisa panis inviolabitèr sub poenâ collistrigiali observaretur : quae probata fuit per pistorem gaufridi filii p. justitiarii angliae , & pistorem r. de thurnam . ita quod pistores poterint sic vendere & in quolibet quarterio lucrari iii. denarios , exceptis brennio & . panibus ad furn . & . servientibus iv. obolos , . gracionibus . quadrantem , & in busia iii. denarios , & in bultello obolum : with a proportionate price and weight 'twixt corn & bread at large reckoned . iv. celebrating the christmas at bristow , capturam avium per totam angliam interdixit . v. praecepit per forestas totius angliae sepes comburere , & fossata complanare , datis frugibus circumquâque bestiis ad devorandum . vi. after transaction of that great controversie 'twixt the king and innocent iii. bishop of rome , publick commandment was given for observation and maintenance of the laws of henry his great grandfather . vii . denuntiatum est praetereà vicecomitibus , forestariis aliisque ministris regis , sicut vitam suam diligunt , ne à quopiam aliquid violentèr extorqueant , vel alicui injuriam irrogare praesumant , aut scottalla alicubi in regno faciant , sicut facere consueverunt . but notwithstanding those general forms of reformation , a more serious and recapitulated was desired by the whole baronage ; a grand council is appointed at paul 's in london , and there by stephen archbishop of canterbury , is produced a copy of henry beauclerk 's free charter ( which is before expressed ) and the same delivered to the chief clerk there , to be openly read & pronounced . as soon as the barons heard it , was a uniform consent , that maintenance and assertion of those liberties should rest , as of more dear account , in their martial resolutions , than bloud or life . nay in short space after , mutual combination by solemn oath taken upon the altar was made among them , that their band of fealty dissolved ( for so they deemed john 's government had occasioned ) their swords should compel him to enseal their demands . to that place , which now only is called the temple ( then the new-temple ) where the king lay in warlike order , they go to execute their designs ; he binding himself with an interlocutory sentence , and giving caution of future satisfaction , takes day until easter following ; but all was no less delusory , than dilatory : nor any thing done with a face of composition , until the appointed meeting of the king and barons ( whose part hourly encreased ) in renimed , alias runingmede near stanes in middlesex ; whereof in the marriage of tame and isis , thus sings no small favourite of the muses ; subluit hic ( i. thames ) pratum quod dixit renimed anglus , quo sedere duces armis annisque verendi : regis joannis cuperent invertere sceptrum , edwardi sancti dum leges juraque vellent , principe contempto , tenebroso è carcere duci . where an instrument of publick liberties , through mediation of what is above all law , necessity , was , as you shall hear it speak , sealed and delivered to the baronage . johannes dei gratiâ angliae , &c. sciatis nos intuitu dei , & pro salute animae nostrae , & antecessorum omnium , & haeredum meorum , & ad honorem dei , & exaltationem s. e. & emendationem regni nostri , per consilium venerabilium patrum nostrorum stephani cant. archiep. totius angliae primatis , & s. r. e. cardinalis , henrici dublingensis archiep. will. londoniens . episc. petri wintoniensis , jocelini bathoniens . & glascon . hugonis lincoln . walteri wigorniens . will. coventrensis , benedicti roffensis episcoporum , & m. pandulphi d. p. subdiaconi , & familiaris fratris m. militiae templi in angliâ , & nobilium virorum will. marescalli com. penbriae , will. com. sarisburiensis , will. com. warrenae , will. com. arundel , alani de leweia constabularii scotiae , warini f. genoldi , petri f. herberti , & huberti de burgo senescalli pictatiae , hugonis de nevilla , matthaei f. herberti , thomae basset , alani basset , philippi de albeni , robert de ropesle , joannis marescalli & johannis f. hugonis , & aliorum fidelium nostrorum . viii . inprimis concessisse deo , & hâc praesenti chartâ nostrâ confirmasse , pro nobis & haeredibus nostris in perpetuum , quod anglicana ecclesia libera sit , & habeat jura sua integra , & libertates suas illaesas , & ità volumus observari , quod apparet ex eo quod libertatem electionum , quae maxima & magis necessaria reputatur ecclesiae anglicanae , merâ & spontaneâ voluntate ante discordiam inter nos & barones nostros manifestè motam , concessimus & chartâ nostrâ confirmavimus , à d. pp . innocentio tertio confirmari , quam & nos observabimus , & ab haeredibus nostris in perpetuum bonâ fide volumus observari . ix . concessimus etiam , & omnibus liberis hominibus nostris regni angliae , pro nobis & haeredibus nostris in perpetuum , omnes libertates subscriptas , habendas & tenendas eis & haeredibus suis , de nobis & haeredibus nostris . these premisses are in the grand charter of henry the iii. commonly published in our printed statutes , nor in any word of moment is there a difference found 'twixt this of john and that of henry , until the prohibition of disparagement in marriage of young wards ; which thus commandeth , haeredes maritentur absque disparagatione : to this is added in a continued sentence ; ità tamen , quod antequàm contrahatur matrimonium , ostendatur propinquis de consanguinitate ipsius haeredis . the vii . and viii . chapters of widows and their quarentines , with that of the king's debtors , are also in like words following : but this of john hath this further additament . x. si quis mutuo acceperit aliquid à judaeis , plùs vel minùs , & moriatur antequàm debitum illud persolverit , debitum illud non usuret quamdiù haeres est infra aetatem , de quocunque tenet ; & si debitum istud incidat in manus nostras , nos non capiemus nisi catallum contentum in chartâ : who elsewhere seeks the true understanding of the statute of merton under title of usury , must still remain in an extravagant search , until he return to that exposition which lies here open . xi . si quis moriatur , & debitum debeat judaeis , uxor ejus habeat dotem suam , & nil reddat de debito illo ; et si liberi ipsius defuncti , qui fuerunt infrà aetatem , remanserint , provideantur eis necessaria , secundùm tenementum quod fuerit defuncti : & de residuo solvatur debitum , salvo tamen servitio dominorum : simili modo fiat de debitis quae debentur aliis quàm judaeis . xii . nullum scutagium vel auxilium ponam in regno nostro , nisi per commune consilium regni nostri ( according is a grant of e. . in thomas of walsingham 's history ) nisi ad corpus redimendum ( in the norman customary it is aide de rancon , which in an ancient manuscript of xxi ed. . in the case of robert of wentham , i have seen released between common persons ) and ad primogenitum filium nostrum militem faciendum , & ad primogenitam filiam nostram semel maritandam ; et ad hoc non fiet nisi rationabile auxilium : simili modo fiat de auxiliis de civitate londoniense . here is adjoyned the general franchises of london , other cities , boroughs , towns and ports verbatim as in the ix . chapter , which concluded ensues . xiii . ad habendum commune consilium regni de auxiliis assidendis aliter quam in tribus casibus praedictis , & de scutagiis assidendis , submoneri faciemus archiepiscopos , episcopos , abbates , comites & majores barones regni , singillatim per literas nostras ; et praetereà faciemus submoneri in generali per vicecomites & ballivos nostros , omnes alios qui in capite tenent de nobis , ad certum diem , scilicet ad terminum . dierum ad minus , & ad certum locum ; & in omnibus literis submonitionis illius causam exponemus , & factâ submonitione , negotium procedat ad diem assignatum , secundum consilium eorum qui praesentes fuerint , quamvis non omnes summoniti venerint . xiv . nos non concaedimus de caetero alicui , quod capiat auxilium de liberis hominibus suis , nisi ad corpus suum redimendum , & ad faciendum primogenitum filium suum militem , & ad primogenitam filiam suam semel maritandam ; & ad hoc non fiat nisi rationabile auxilium : unto the xviii . chapter inclusively of henries charter from hence , are in both almost the same syllables ; but whereas the printed close of the same chapter , is , salvis uxori ejus ( i. e. of one that is dead ) & pueris suis rationabilibus partibus suis , here is further : xv. si quis liber homo intestatus decesserit , catalla sua per manus propinquorum parentum & amicorum , per visum ecclesiae distribuantur ( see art. ix . in hen. . ) salvis unicuique debitis , quae defunctus ei debebat ; and in divers old written copies of the common and usual magna charta 's , the self same words continue that chapter ; all is in both alike unto the end of the provision for safe conduct of merchants ; but thereto in this historical report succeeds , xvi . liceat unicuique de caetero exire de regno nostro , & redire salvò & securè per terram & per aquam , salvâ fide nostrâ , nisi in tempore guerrae per aliquod breve tempus propter communem utilitatem regni , exceptis imprisonatis & utlagatis , secundùm legem regni , & gente contra nos guerrinâ , & mercatoribus , de quibus fiat sicut supradictum est . what follows in either is the same as well in words as sence . and as we have now in every man's hands a charter of the forest also distinct from the other , so had the barons then to them granted ; and very small or no difference is found between theirs and that , whose fore-front is since signed with king henry 's name . i suppose it fit place and time here to give remembrance of an escaped , and in every impression that i have seen allowed , fault , in the vii . article of the forest charter , which by little alteration , and thus pointing , is corrected ; nullus forestarius vel alius balivus de caetero faciat scottallum , vel colligat herbas , ( you may read garbas ) vel avenam , vel bladum aliud , vel agnos , vel porcellos , nec aliquam collectam faciat ( nisi , so is the print but in king john 's copy , and in divers manuscripts of our statutes , one having the subscribed authority of exam. per rot. i have warrant to read , and distinguish with a full period at faciat , and turning nisi into & go thus forward ) & per visum & sacramentum xii . regardatorum , quando faciunt reguardum ( taking away the point there ) tot forestarii ponantur ad forestas custodiendas , quot ad illas custodiendas rationabilitèr viderint sufficere ; how much the sence differs , small observation soon discovers . the concluding date of these granted franchises , and restored laws , john stow saith was , given by our hand in runingmede , betwixt stanes and windsor , the xvi . of june , the xvii . of our reign : unto which all the whole realm was sworn . but the fluxile nature of this deceitful prince , aided by pope innocent iii. and his nuntio pandulph , soon loosed that kind of royal faith and promise ; as quick were the barons ( they by oath had bound themselves to constrain him by arms , if their expectations in his future carriage were frustrate ) and ready to , and did , revolt . death of the king prevented their projects , which for this purpose in the ix . year of the succeeding henry fitz john ( as the first page of our printed volumes of old acts of parliament give to every reader testimony ) were with some ease attained , and by his posterity , as the main freedom of the english common-wealth , hath been since more than thirty times , by the true authority of the state , in their high-court , confirmed . soli deo gloria . chronologia huic nostrae inserviens epinomidi . ante christvm . m.c.viii . brutus ille , quem trojanâ aiunt , sed potissimum bardi , stirpe oriundum , à quo post samotheos ( magis semnotheos ) sumus auspicati , sed aliena nempe & dubia fide fertur adpulisse . ccccxii . dunvallo molmutius . ccclvi. martia r. guinthilin vxor. lv. julius caesar , is primum romanis ostendit britanniam , & territa britannis terga . ab incarnato deo. lii . claudio caesare deducta camalodunum colonia insulaeque pars in praesidialem redacta provinciam . clxxx . commodo imp. obsignatam recepit palingenesiam lucius rex ab elutherio pp . ab incarnato deo cdxlix . britanniam anglo-saxones advehuntur , theodosio jun. rom. imp. nec multis inde curriculis annorum interceptis heptarchas inter quae jam anglia dispertita . sed camdeno è fastis consularibus beda & ninnio rationibus subductis cdxxviii . floruere dlxi . aethelbertus rex cantii , primus anglo-saxonum ( foelicissimo ducta sibi in uxorem auspicio bertha francorum regis filia ) princeps christianus . dccclxxii . alfredus seu aluredus rex . dcccclix . edgarus rex . mlxvi . willielmus normanniae dux haroldum conserta in planitie juxta hastings in agro suthsexiensi manu , atque anglorum copias devicit . ii. nempe id. octobr. & regio se insignivit hic titulo . m.lxxxviii . willielmus rufus primi filius . m.c. henricus primus rufi frater . m.cxxxv . stephanus blesensis . ab incarnato christo m.c.liii . henricus filius matildis imp. & galfridi com. andegavensis . m.c.lxxxix . richardus primus henr. fil. m. c.lxxxxix . joannes r. richardi frater . finis . two treatises written by john selden of the inner-temple , esquire . the first , of the original of ecclesiastical jurisdiction of testaments : the second , of the disposition or administration of intestates goods . london , printed for thomas basset at the george in fleet-street , and richard chiswell at the rose and crown in s. paul's church-yard . mdclxxxiii . the contents . part i. of the original of ecclesiastical jurisdiction of testaments . chap. . the intrinsecal jurisdiction not given to the church by the civil law , page chap. ii. nor by the canon law. p. chap. iii. the extrinsecal jurisdiction by the civil law , in whom , ibid. chap. iv. in whom by the canon law , p. chap. v. of the intrinsecal jurisdiction in the saxons time , p. chap. vi. whence linwood thinks the jurisdiction intrinsecal came to the church , p. chap. vii . testimonies of king john and henry the third's time , that may serve to prove the extrinsecal jurisdiction then in the temporal courts , p. chap. viii . suits of legacies personal in the spiritual court from the beginning of henry the third , of the beginning of that course , p. part ii. of the disposition or administration of intestates goods . chap. i. in whom it was in the time of the saxons , p. chap. ii. in whom after the normans until king john's time , p. chap. iii. in whom after the time of king john , p. chap. iv. how that so granted by king john's charter in parliament hath continued in practice , p. chap. v. of that of bona intestatorum in manus domini regis capi solebant , p. part i. of the original of ecclesiastical jurisdiction of testaments . chap. i. the intrinsecal jurisdiction not given to the church by the civil law. the jurisdiction of testaments being either intrinsecal or extrinsecal , ( that is ) either touching probate , or recoveries of legacies : first for the intrinsecal , it is clear that it came not to the bishop by imitation ; or otherwise , from the imperial civil law : for by the elder part of that law , regularly the probate or aperture of wills was before the (a) praetor . and afterward the obsignation , insinuation and probate of them in rome , was before the magister census , or (b) apud officium censuale , as it were before the barons of our exchequer ; and that continued into later time . and the same officer by the name of (c) 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or generalis in constantinople , had the same authority : but also afterwards as well the questor's seal , as that of the generalis became to be used at the obsignation , and his authority also in the probate or aperture . and the emperour leo (d) about the year . transferred all that herein belonged to the generalis into the questor's place ; yet so , that some other civil magistrates had the like authority : and what was done before these in rome and constantinople , was in other cities before their chief governours , as defensores or praefides : neither was the church permitted to have to do with the insinuation of testaments , but expresly forbidden by a rescript (e) of the emperour justin : nor is any thing that gives it either among the novells of the greek empire , or in the lombarda , or capitulares , which have (f) been reputed as parts also of the imperial law. chap. ii. nor by the canon law. neither in any general council , or other part of the received canon law , doth any testimony occurr , that gives the church this intrinsecal jurisdiction . but in the fourth council of (a) carthage holden in the year . it was ordained , vt episcopus tuitionem testamentorum non suscipiat . and this being then established by two hundred and fourteen bishops , was afterwards made a part of (b) the decrees , or canon law , collected by gratian , and published and authorized by pope eugenius the third about . and the gloss upon that canon interprets tuitio for aperture or probate . so also pope (c) innocent the fourth understands it : publicatio ( saith he ) fieri non debet apud episcopum ; and he vouches that law , (d) consulta ducalia tit . de testament . to prove it . speculator , hostiensis and others of the same time , and generally the rest that follow them , make the civil law only the square of the jurisdiction of the probates ; and so it is truly affirmed in our books , that the probate belongs not to the church (e) by the spiritual law ; neither is any such thing given by any later (f) bull , or decretal from the bishop of rome . chap. iii. the extrinsecal jurisdiction by the civil law , in whom . for the extrinsecal jurisdiction that gave recoveries of legacies , by the imperial civil law , where the legacies were in pios usus , the (a) bishop of the diocess sometimes by himself , sometimes with the civil magistrate , provided for the execution of the testators meaning : otherwise the jurisdiction of legacies , and what else falls under testamentary disposition , was and (b) is the magistrates only . chap. iv. in whom by the canon law. but by the canon law , the general care of execution of testaments is committed to the bishop : yet i find not any canon to that purpose received into the body of that law , now in authority , before the time of the decretals ; which have out of some council of mentz these words , viz. (a) si haeredes jussa testatoris non impleverint , ab episcopo loci illius omnis res quae eis relicta est canonice interdicatur , cum fructibus & caeteris emolumentis , ut vota defuncti impleantur . out of what council of mentz this is taken , i have not yet learned ; (b) but in the same syllables it occurrs in burchard , that lived about six hundred years since , with the marginal note of ex concilio moguntino . what other texts are , touching the power of the canons over performance of testaments , have reference to that course ordained by the civil law , where any thing was given in pios usus , not to a general jurisdiction ; for so is the canon nos quidem extr . tit . de testam . neither is that canon vltima voluntas in c. . q. . taken out of s. gregory , otherwise to be understood , if you interpret it as you ought by those (c) places of gregory whence it is taken : but the canonists generally upon that canon si haeredes , take it , that executio testamentorum ad episcopos spectat . and so those old ones pope innocent the fourth , bernard , and others of the rest deliver ; and the (d) latter follow them , yet they commonly restrain it ( and that in practice in other states ) to legacies given in pios usus . and in the council of trent , where twice the bishops power over testaments is provided for , (e) nothing is spoken of but commutations of legacies , and of such as are given in pios usus : yet from ancient time both the intrinsecal and extrinsecal jurisdiction of testaments made of personal chattels in england , hath been and is in the church , except in places where special custom excludes it : the original whereof being not sufficiently found in either of these laws ( the civil and canon ) divers parts of which according to the various admission of several estates have been much dispersed through christendome , and some remain now exercised by imitation among us ; it rests , that disquisition be made for it in the monuments of the kingdom , that according as they together with the canons afford light , some conjecture may be had touching the antiquity and ground of it . chap. v. of the intrinsecal jurisdiction in the saxons time . the eldest testament that i have seen made in england , is that of king edgar's time , made by (a) one birthric a gentleman or thane ( it seems ) of great worth , and his wife elswith ; wherein they devise both lands and goods ; and in the end of the will sayes her husband . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 ; and i pray for gods love my leefe lord , that he doe not suffer that any man our testament do break . it may perhaps thence be collected , that the protection or execution of this testament was within the jurisdiction of the lords court , as also the probate ; and that especially , because divers lords (b) of mannors have to this day the probate of testaments by custom continued , against that which is otherwise regularly setled in the church . but the same testament being for lands as well as for goods , it may be that this clause had reference to the lord in regard of the land only , ( to the alienation of which , his assent might be requisite ) or to denote him for the testators best friend , as one chosen overseer of his will ; and indeed he desires all other good people to see his will be not broken ; which makes me only offer it , as what another mans fancy may work on : but i conceive not out of it enough to prove either way any thing touching the jurisdiction of testaments . nor in the saxon times appears any thing that can sufficiently direct us to know , how it was exercised here , unless out of that example of siwerth of durham's testament , in the (c) book of ely , you may collect , that the probate was supply'd in the life-time of the testator by inrolment , or leaving an indented copy of it with the alderman or sheriff of the county , in whose county-court the most of proceedings of temporal justice , and of the spiritual also ( for the bishop sate with him , as in his consistory ) were in the saxon times : for so much perhaps may be conjectured out of it , as we faithfully here relate it . siwerth in king edgar's time , lying sick at lindane in the isle of elie , makes his testament , and sends for brithnorth abbot of elie , and divers of the monks , and others of the gentry ; and the abbot writes the testament in tribus chirographis , coram ( so are the words of the book ) cunctis fecit recitari , lectumque fecit incidi , unamque partem chirographi retinuit siferthus , alteram autem dedit abbati , tertiam vero misit statim per praefatum brithelmum ( that was one of the gentlemen of the countrey then present ) ailwino aldermano , qui tunc temporis degebat in elie , & petiit ab illo ut suum testamentum stare concederet , quomodo abbas illud scripserat , & ordinaverat apud lindane coram praedictorum testimonio virorum . cum itaque ailwinus alderman hoc audisset , & chirographum vidisset , remisit illico ad eum wlnothum de stowe cum brithelmo , sciscitatusque est ab eo quid aut quomodo vellet de testamento suo : qui mox per eosd●m renuntiavit ei , sic suum testamentum absque omni contradictione vel mutatione se velle stare , sicut praefatus abbas illud in chirographo posuerat , quod ut ailwinus alderman audivit , totum concessit , ut staret sicut ipse siverthus testatus erat . but in deed , in it lands lying in durham were devised to the abbey ; and so , it was not only of personal chattels . the saxon laws are very silent of any thing touching testaments ; and we must remember , while we think of that example of siwerth of durham , that the ecclesiastical and temporal courts of common justice , held as one by the sheriff and bishop , were not severed as now , into the consistory , and county court , until the conqueror did it by a law yet remaining and elsewhere published (d) in what intercedes from this time , until about h. . i find not any testimony that gives light to this purpose ; as the saxon laws , so those of the conquerour , and of h. . and h. . mention nothing that tasts of either kind of jurisdiction of testaments ; only of a charter of h. . extant in matth. paris , and in the red book of the exchequer this occurrs , si quis baronum vel hominum meorum infirmabitur , sicut ipse dabit vel dare jusserit pecuniam suam , ita datam esse concedo . this may perhaps seem to denote , that the kings court determined of legacies , especially of the kings tenants . but indeed it proves not so much . but the eldest passage that proves clear enough here , is that which makes the intrinsecal jurisdiction to have been in the church , and the extrinsecal in the kings court ; i mean that which is found in the treatise attributed to randall of (e) glanvill chief justice under h. . where he sayes , that if a legacy be detained , the executors or other friends of the testator , were to get the kings writ to the sheriff , commanding quod justè & sine dilatione facias stare rationabilem divisum , ( that is , the bequest or legacy ) . n. sicut rationabiliter monstrari poterit quod eam ●ecerit , & quod ipsam stare dibeat , &c. and it is plain by the words there preceding and subsequent , that it hath reference to moveable or personal possessions , not to lands , &c. so that it seems clear by that in h. . his time , the jurisdiction of personal legacies was in secular courts . but if the issue in secular courts upon that writ came to be , whether the testament were true or no , or well made , or whether the thing demanded were in facto bequeathed , tum ( sayes he ) placitum illud in curta christianitatis audiri debet , & terminari , quià placitum de testamentis coram judice ecclesiastico fieri debet , & per illorum qui testamento interfuerint testimonia secundum juris ordinem terminari : that is , as it must be understood , that upon issue of bequeathed or not bequeathed , of testament made , or no testament , the tryal must have been otherwise than by the practice of the latter (f) law , wherein the testament is traversable , and the traverse tryable in the kings court by certificate to the temporal court from the ecclesiastical , as at this day , of institution , bastardy , and profession in religion , and the like : and thence may it be well concluded , that at this time by the practised law , the probate or the intrinsecal jurisdiction was in the church ; for as the institution , bastardy and profession are to be certified , because within the bishops juris●iction . some recorded testimonies remain of the first and third , and the nature of the marriage or cohabitation ( that directs in the second ) is to be judged of only in the spiritual courts ; so the validity of the testament , or the truth of this or that particular legacy was to be certified from the spiritual court , because the probate had there proceeded , and the copy there remaining was most authentick ; otherwise to what purpose should they have sent to the spiritual court in such a case ? but on the other side , as in the case of institution , profession and bastardy , the consequence of them , which are objects of their extrinsecal jurisdiction , as descent , exclusion from inheritance , gaining it by a descent cast , or legal making a church full , or the like are determinable only at the common law ; so the consequence of a testament , that is , the recoveries of legacies , and such like , as it seems by that writ , were in the temporal , not in the spiritual court. i know the authority of that treatise is suspected , and some of the best and ancientest copies having the name of e. de n. which i have heard from diligent searchers in this kind of learning , affirmed to have been sometimes e. de narborough , and not r. de glanvilla , it hath been thought to be anothers work , and also of later time . but , as on the one side , i dare not be confident , that it is glanvills , so i make little question , that it is as ancient as his time , if not his work. the tests of the precedents of writs under his name , the language , especially the name of justitia alwayes for that which we now from ancient time call justitiarius ; and justitia was so used in (g) writers under h. . and the law delivered in it tasteth not of any later age. and howsoever it comes to pass , the regiam majestatem of scotland published by command of david the first under the time of our hen. . hath for the most part the same syllables with this supposed glanvill , and expresly (h) the very passages and the writ that we have now here noted for testaments . that extrinsecal jurisdiction of those times in the secular courts , was perhaps denoted by those words in the testament of theobald arch-bishop of canterbury under king stephen , (i) supremis ( saith he ) deficientium voluntatibus suum accommodant jura favorem , where he devises only personal things and uses . i think , jura is rather to be taken for the common law , than the spiritual ; which is , in the most usual phrase of that time , designed by canones . in this time of hen. . divers fierce controversies fell between the law and spiritual jurisdiction , and the particulars of them are largely related at the end of quadrilogus , in gervase of dover , in roger of wendover , in john of salisbury , and matthew paris , but in him most abruptly ; yet not the least mention is in them touching any matter of this jurisdiction ; and in the main cases of our spiritual courts depending under h. . and sent by appeal to rome , which yet remain in the epistles of john of salisbury , there is not one that touches upon either of these jurisdictions of testaments in the church ; but indeed there is one that may seem somewhat to prove for that which we note out of glanvill , concerning the intrinsecal jurisdiction at that time in the temporal court : for in an appeal sent to pope alexander the third , the case , as john (k) of salisbury relates it , was , that one richard de anestia in foro secularium judicum petitionem haereditatis ad bona avunculi obtinenda instituit , against mabile de franckvilla , being daughter to william of sackvill , to whom the plaintiff was nephew by his sister : and the point of the issue between the daughter here and the nephew , being upon the bastardy of the daughter , the spiritual court had the tryal of it . if ( bona ) here be understood for chattells , as in our law it is , and so restrained , then was this petitio haereditatis , as a suit for sackvill's goods , grounded also , as it seems , upon a testament of his : for in the relation of the case also , richardus insistebat , sayes the author , institutioni avunculi , petitionem haereditatis instituens ; and on the other side , mabile maxime patris novissimae voluntati innitebatur : which shews , that here was a testament in the case , and a suit for what was challenged by it in the temporal court : but haereditas and bona , it is likely , included here ( as by the civil law ) all possessions of the ancestor , both real of inheritance , and personal , that is , the universum jus defuncti , and not only our inheritance ; although it doth also amongst some (l) civilians denote no more , if at least they understand aright what they say , while they write , that consuetudo est in anglia quâ primogenitus succedit in omnibus bonis : and in this case , if the issue had been upon the truth of the testament , as it was upon the bastardy , it had been referred also to the spiritual judges . chap. vi. whence linwood thinks the jurisdiction intrinsecal came to the church . by what is before delivered , it appears , that the intrinsecal jurisdiction or probate was in the church ; and that by express testimony , as anciently as the time of h. . and by all probability it was in setled use before that time , being spoken of in that treatise called glanvill's , as a known course of proceeding : although indeed yet i could never see an express probate in any particular case , elder than about h. . but the beginning or course of this intrinsecal jurisdiction in the church , is not for ought i have yet learned , extant : however fairefaxe tells us , that it was by an act of parliament , which perhaps he took from that of linwood ; haec libertas ( ecclesiae ) quoad approbationem hujusmodi ( saith linwood ) fundatur super consensu regio , & suorum procerum ( in talibus ) ab antiquo , concesso . where he means by in talibus , their power of committing of administration of intestates goods , as it is plain by his quotation of that constitution of arch-bishop stafford tit . de immunitate eccles. accidit . novitate perversas quidam etiam : that power was given , as i guess , by parliament in king john's time : but thereof more in due place . and linwood addeth , item fundatur super consuetudine in ea parte de scientia regum angliae , diutius conservata : which is indeed , that it is founded upon the common law or customary law of the kingdom ; or that it hath like antiquity or original as other parts of the common law , that is , immemorial custom . for though it be exercised according to the civil and canon law in the spiritual courts , with some reference had to the customs of england ; yet it is clear , that the power which the spiritual courts have to exercise it , is meerly by the common law ; although we find not when it came first to them , no more than we find divers of our setled courses and maxims in the common law ; touching which yet we can without much difficulty prove , that at such or such times they were not in practice ; as perhaps in the more ancient ages , this was not in these courts . but that it was originally belonging to the crown , that is , to the temporal courts , which are all , and ever were derived from the dignity royal , is affirmed also , as in that cited in hensloe's case , out of jocelin's history of the arch-bishop of canterbury , in a writ (a) h. . that prohibiteth the arch-bishop of york to call the executors of the tenants of s. leonard's hospital to prove their wills before him ; because as the words are , placita de cognitionibus scriptorum in regno nostro angl. ad nos , co●onam & dignitatem nostram specialiter pertinent : and also they had time out of mind used to prove them before the masters and brothers of the hospital . here we see the testaments reckoned as other evidences , the tryal and conusance whereof belongs only to the temporal courts : and at this day by special custom many lords of mannors have like probate in their courts baron . by the way , for that which fairefaxe , and others following him , tells us , that in all other countries the probate belongs to lay-judges , he is deceived , and deceives his readers . indeed , in the most places of other states it belongs to the lay-judges : but in france (c) generally the spiritual judges , both before fairefaxe his time and since , had this jurisdiction of probate , and so have had without controversie ever since the disputations about it and other parts of jurisdiction had with some clergy-men , by coniers attorney general to philip valois , and peter dreux in behalf of the duke of britain , at such time as the clergy had there so extended their jurisdiction , que les fauxbourgs estoint trois fois plus grands que la uille , as pasquire speaks of them . chap. vii . testimonies of king john and henry the third's time , that may serve to prove the extrinsecal jurisdiction then in the temporal courts . for the extrinsecal jurisdiction , as it seems by glanvill and other testimonies , that it was in the kings courts under h. . and so by all probability before : so out of other records of following time , somewhat may perhaps be collected to prove , that it continued long in them , as out of the patent of king john for oliver of rochford's testament , sciatis ( sayes (a) the king ) nos concessisse testamentum oliveri de rupe forti sicut rationabiliter conditum est , & apud s. florentiam veterem & rupem fortem scriptum & ordinatum . quare volumus & firmiter praecipimus quod nullus executorum testamenti ipsius impediat quin illud sicut rationabiliter conditum est faciant . then out of that of peter de roches bishop of winchester , and chief justice of england , touching the will of adam of gurdun , rex (b) dom. p. winton . episc. justic. angl. &c. mandamus vobis quod teneri facias testamentum adae de gurdun quod fecit de rebus suis mobilibus & omnibus aliis in angl. secundum dispositionem testamenti excepta terra quam de domino nostro habuit septimo augusti . teste meipso : this expresly gives some legal execution of a testament made of personal things unto the chief justice of england . and in (c) h. . robert of lexinton having the possession of all the goods of philip de vletott the testator , a writ goes out to him to pay william earl of salisbury a debt of ninety marks out of them , and that the rest should be delivered to the executors ad faciendum testamentum ; and another writ was sent , that he should per visum & testimonium execut. sell all vletott's goods , & denarios quos inde fieri feceritis , salvo faciatis reponi sub sigillo vestro & sigillo executor . praedict . donec aliud mandatum nostrum inde habueritis . and in hen. . a writ is directed to the sheriff of lincoln , (d) reciting , that whereas it appeared , that richard fitz-dune dyed not intestate , ideo tibi praecipimus quod omnia catalla ipsius richardi in manum nostram capta in balliva tua sine dilatione habere facias priori de noketon , and other executors of his testament ad faciendum inde rationabile testamentum : and other like writs occurr in the rolls of king john and h. . chap. viii . suits of legacies personal in the spiritual court from the beginning of henry the third , of the beginning of that course . but however it may seem by those testimonies , that the temporal courts had some extrinsecal jurisdiction of testaments in the time of king john and hen. . it is clear , that in the beginning of h. . suits for legacies personal were in the spiritual courts , and that it seems from custome setled in practice of the former times that were then newly past . and perhaps it might be in the more ancient times fori mixti , and as well exercised in the one , as in the other court ; as we have elsewhere shewed of the more ancient jurisdiction of tithes ; or it may be , that those writs in the former chapter , and the like , were but in case of tenants being testators , upon whose deaths all their goods were to be seised by the sheriff , or other such officer , and the debt ( if any were ) paid to the king , et residuum relinquebatur executoribus testamenti defuncti , as the words are , both of the charters of king john and h. . (a) and perhaps by that chapter of the charter those writs may be interpreted , and faciatis teneri testamentum may be but only an amoving of the kings hands from the goods , that so the executor might perform the testament ; for that the spiritual court did from the beginning of h. . exercise a jurisdiction for recovery of legacies , is infallibly proved by (b) cases of , , , & hen. . and the attachments upon prohibitions extant in records of that time , are , quare secutus est placitum in curia (c) christianitatis de catallis quae non sunt de testamento vel matrimonio : and many such more are both in the rolls and in matth. paris . it appears also in h. . in the case of symon fitz-simon , that even that suit for deviseable land being devised , was thought to be good in the spiritual court ex causa testamentaria , as if laicum feodum versum esset in catallum , until the devisee had recovered it : and after the recovery , iterum incipiebat esse laicum feodum — as (d) bracton sayes , where his printed copy is exceedingly corrupted . but it was clear law in the time of this bracton , who was a judge in the common pleas in the latter part of h. . that locum (e) non habet probatio in causa testamentaria si catalla legentur & inde agatur in foro ecclesiastico : and he reckons that of testaments inter spiritualia , & spiritualibus annexa , which agrees exactly in the known and practised consultations in the (f) register , placita de catallis & debitis , quae sunt de testamento & matrimonio , ad forum ecclesiae specialiter dignoscimus pertinere , &c. and although in case of legacy , as in case of tithes , the jurisdiction that gave the recovery of them , was sometimes in the one , sometimes in the other court , before it was restrained to the spiritual only , yet it seems by those cases of henry the third's time , which are testimonies beyond exceptions , that the spiritual jurisdiction over legacies , was long before in practice ; otherwise i guess that exception de testamento , & de matrimonio , had not been so familiar in the prohibitions of that age. and notwithstanding those cases out of the records of king john's and henry the third his time , the temporal court not only prohibited not the spiritual court , espec●ally in h●nry the third's time , but also had not any conusance of suits for personal legacies ; for neither have i ever met with any suit in that kind in the plea rolls of h. . or king john , or richard . ( but very few are extant of the time of the two last ) neither doth bracton admit any such thing . and the author of fleta in the time of e. . tells us expresly , (g) de causa testamentaria sicut nec de causa matrimoniali curia regis se non intromittet . but the beginning of that practice of the extrinsecal jurisdiction in the spiritual court , is even as difficult to find , as that other of probates . linwood tells us , that (h) libertas quoad secundum scilicet , puniendum impedientes quo minus testamenta & ultimae voluntates defunctorum procedant , ortum habet à privilegiis etiam in ea parte concessis , & à consuetudine similiter de scientia regum angl. diutius observata : and further , potuit ( saith he ) habere ortum out of those (i) laws in the code that made the bishop a protector of legacies in pios usus . it might be also in regard of the purpose of those laws in themselves ; and it were no great wonder , that the ecclesiastical court might have gained jurisdiction over all personal legacies under colour of such as were given in pios usus : but perhaps it will not be admitted for probability enough , that any part of the code being of the imperial or civil law , was ever so received here in england , as that it could induce any alteration touching the jurisdiction of the crown , that is , touching this extrinsecal jurisdiction which ( as is shewed ) did belong to the temporal courts : but whosoever will not admit of any such conjecture , must yet remember , that presently from king stephen's time , when the civil law was new born into the light , it having lain forgotten by the space of six hundred years before in the western empire , the code and other parts of that law were familiarly read by our english lawyers ; and i think as well by our common as canon lawyers : to omit that case of mabile of franchiville , wherein , it seems , a special regard was had to the civil (k) law , that permits not a meer bastard and succession ex testamento against a lawful heir of blood ; for otherwise how could richard the uncle's institution , as it seems by a former will have made colour of right for him , against the latter will which mabile pretended , unless he relyed upon her being a bastard . but i should think it probable enough , that the original of this jurisdiction for legacies , was out of the canon law. and that especially from that canon si haeredes , &c. before cited ; for although the decretals , wherein it stands now authorized for a general law , were first published but in h. . by gregory the ninth , and that we see by infallible testimony already brought , that legacies before that time , were recoverable in the spiritual court , yet by likelihood that very canon was inserted in all or some of those eight more ancient compilations of the canons authorized by some former popes ; ( which is the more probable , because we find it also in burchard ) and so it might be , long before sufficient ground of this extrinsecal jurisdiction in the ordinary ; but i sought here for authority more than i durst be bold in conjectures , which i leave to every mans judgement . part ii. of the disposition or administration of intestates goods . chap. i. in whom it was in the time of the saxons . in the saxons time it was in the lord of him that dyed ( understand the chief lord ) in case the intestate were a tenant , and dyed at home in peace : but in case he were no tenant , or dyed in his lords army , then it was ( it seems ) as other inheritance under the jurisdiction of that temporal court within whose territory the goods were : this may be proved out of the laws of that time , which ordain , that upon the death of an intestate , whom they call cwiale awe , the lord (a) is only to have the heriotts due to him , which are also appointed by (b) the laws of the same time , that by his ( the lords ) advice or judgement his ( the intestates ) goods be divided among his wife and children and the next of kin , according as to every one of them of right belongs , that is , according to the nearness of kindred , if no children or nephews from them be ; for it must , i suppose , be understood , that the succession was such , that the children excluded all their kindred , and of their kindred the next succeeded , according to that in tacitus (c) of his germans , whose customs were doubtless mixt with our english saxons , haeredes , sayes he , successoresque sint cuique liberi , & nullum testamentum . but it seems , christianity afterward brought in the free power of making testaments amongst them , si liberi non sunt , proximus gradus in possessione fratres , patrui , avunculi . but this is exprest only in case the tenant dyed at home and in peace ; for if he dyed in his (d) lords army , both the heriott was forgiven , and the inheritance both of goods and lands was to be divided as it ought , which was , it seems , by the jurisdiction of the temporal court within whose territory the death or goods were ; for in that case , it is not said , that the lords judgement was to be used , but that the heirs should divide all ; or , as the words in the confessor's law are , habeant (e) h●redes ejus pecuniam & terram ejus sine aliqua diminutione , & recte dividant interse ; where the right of the heir both to lands and goods is expresly designed , but the judge that should give it them , not mentioned . therefore it seems , it remained as other parts of the common law , under the temporal jurisdiction , as by the (f) civil law it is under the pretors . chap. ii. in whom after the normans until king john's time . until king john's time it seems the jurisdiction over intestates goods , was as of other inheritance also , in the temporal courts : yet no sufficient testimony is found to prove it expresly ; only when the common laws of those times speak of intestates , they determine the succession by like division as those of the saxon times . in laws attributed to william the first we read , a si home morust sans devise , si departent les infants l'erite inter sei per ovell . and afterwards in h. . (b) laws , si quis baronum vel hominum meorum praeventus vel armis vel infirmitate pecuniam suam nec dederit , nec dare disposuerit , uxor sua , sive liberi , aut parentes , & legitimi homines sui pro anima ejus eam dividant , sicut eis melius visum fuerit . here is the first mention , as i remember , of any thing occurring in our laws or histories , of the disposition of the intestates goods , pro anima ejus , which indeed might have been fitly subjected to the view at least of the church . but no mention as yet being of any ecclesiastical power that tends that way , i rather think that heretofore no use or practice was of administration committed , direction given , or medling with the goods by the ordinaries ; but all was by the friends or kindred juxta consilium discretorum virorum , as the words are in (c) the statutes made for such as should dye in the holy war with richard the first . neither doth that of glanvill , which was written under h. . tell us of any thing of the ordinaries power in this case , although it hath express mention of testaments , and the churches jurisdiction of them . indeed we there find , that if no executor be named , then (d) possunt propinqui & consanguinei testatoris , take upon them the executorship , and sue in the kings court against such as hinder the due payment of legacies ; which also agrees well enough with that before cited out of the laws of h. . neither is there in gualter mapes his apocalypsis ( being a bitter satyr against the abuses of the spiritual courts in henry the seconds time ) nor in john of salisbury's epistles , that have many particulars of the exercised jurisdiction of the church , any thing occurring , that touches upon any ecclesiastical powers of this nature . chap. iii. in whom after the time of king john. but in that charter of liberties both for the church and laity made to the baronage of england in the seventeenth of king john (a) in reningmead an express ordinance is , that if any free-man dyed intestate , his chattels were to be disposed of by the hands of his next of kin , by the view of the church , that is , direction and advice being thereto given by the ordinary , as i understand , saving to all creditors their debts : the words of it were , si aliquis liber homo intestatus decesserit , catalla sua per manus propinquorum , parentum , & amicorum suorum , per visum ecclesiae distribuantur ; salvis unicuique debitis , quae defunctùs eis debebat . that charter of king john is almost the same syllables with the common one that we now use by the name of the grand charter of h. . exemplified by the kings patent of e. . but this of intestates , and two or three other chapters for the subjects liberty , are more in that of king john's , than is found in the exemplification of e. . however matthew paris and roger of wendover when they speak of h. . granting it , so refer their readers to this of king john , that they tell us , that that of h. . was the self same in every particular ; and therefore omit the repetition of it . and indeed , although in the common printed magna charta of h. . and in the roll also of ed. . in the tower , where the exemplification is , this ordinance touching intestates be wanting , yet in very many of the ancientest manuscripts of the old statutes , that of h. . hath the same words as we have here transcribed it from king john's , and that in the same place of his charter as that in king john's ; that is , between the eighteenth chapter , si quis teneus , &c. and the nineteenth , nullus constabularius , &c. and it is to be understood , that the greatest prelates of the clergy of that time , as canterbury , london , winchester , pandulphus the popes nuncto , the master of the temple , and divers other bishops were on the kings part , when that of king john was granted . and it is probable enough , that when they saw that a charter of liberties must of necessity be granted to the baronage , they so wrought also , that they might insert this one for the advantage of their episcopal government . and they had good colour to think and perswade , that some such thing was fit for them , in regard it was now clearly taken , that some distribution was to be made pro anima intestati , the care of souls being the chiefest part of their common pretences for increase of their power and greatness . and hence i suppose , it soon came to pass , that the next of kin had the power of disposition committed by the ordinaries , and that in letters or otherwise by vertue of that per visum ecclesiae , which was , i think , the textual ground of right of committing of administration by the clergy : this of king john's being iterated in henry the thirds charter ( however omitted in the exemplification ) was it seems that provision spoken of in cardinal othobon's legatins , proinde super bonis ab intestato decedentium , (b) so are the words , provisionem quae olim à praelatis regni angliae cum approbatione regis & baronum dicitur emanasse , firmiter approbantes , districtius inhibemus ne prelati vel alii quicunque bona intestatorum quocunque modo recipiant , vel occupent contra provisionem praemissam . what provision is it more likely that this was , than that of the grand charter both of king john and h. . and the words à praelatis dicitur emanasse , justifies what we have conjectured of the purpose of the prelates , when they saw they could not but yield with the king , to an establishment of laws , by that charter , made indeed in a parliament of that age . the same i suppose that which is meant in the (c) constitution of arch-bishop stafford , where it is taken for granted , that the churches power of disposition of intestates goods pro salute animarum & in pios usus , was a thing consensu regio & magnatum regni angl. tanquam pro jure ecclesiasticáque libertate ab olim ordinatum , &c. where linwood modestly confesses , that he could not find in what kings time this ordinance was made . but johannes de athona , upon that of othobon , though he rightly call that provision , provisio parliamentalis : yet most ignorantly and ridiculously (d) tells us , that the provision there understood , is the statute of westminster , . cap. . cum post mortem , which he makes also to have i know not what reference to the statute of glocester . but this slipt from him either in a dream , or through the utmost neglect of those infallible characters of truth , that the denoting of times affords us , for that legatin of othobon was made in london in (e) h. . and at such time as that provision was yet extant in the magna charta , used by our lawyers . but the statutes of westminster the second , and of glocester were under e. . the one in the sixth , the other in the thirteenth of him ; how then could othobon think of it in his legatin , or could john de athona have thought so , if he had allowed the title of his gloss , which supposes in the point , that the constitutions of othobon were published in the year . which had it been in . had agreed with truth ; but doubtless the numeral letters of mcclxviii were transposed into mccxlviii . and thence only that error . chap. iv. how that so granted by king john's charter in parliament hath continued in practice . after that law of the seventeenth of k. john , it seems the next of kin disposed of intestates goods by the testimony and direction of the church ; for so per visum denotes , as we see in per visum proborum & legalium hominum in writs of summons and the like : but i have not seen any practice of it testified in king john's time . and under h. . however it were omitted in his charter at the exemplification , the same visus ecclesiae continued ; so sayes bracton that then lived , and was a judge of that time , si (a) liber homo intestatus & subito decesserit , dominus suus nil intromittat de bonis defuncti , nisi de hoc tantum , quod ad ipsum pertineret , ( sc. quod habeat suum heriott . ) sed ad ecclesiam & amicos pertinebit executio bonorum . yet it seems also , that notwithstanding the right of the church thus ordained , and the succession of next of kin so included in the ordinance , both the lords in some places , according to their former right , still usurp some power over the disposition of intestates goods , against the will of the ordinaries : and on the other side also , the ordinaries , instead of giving direction for a true disposition of such goods , get possession of them , and commit them often , or at , least too great a part of them , to the use either of themselves , or of the church , and so defrauded those to whom by the right of natural succession they pertained . for that of the lords , bracton his noting it as a thing denyed them , compared with what we find among articles granted in the synod of london held under boniface arch-bishop of canterbury in h. . proves it , idem quod mortuo ( so is the (b) article ) laico sine testamento non capiantur bona ipsius in manus dominorum . sed inde solvantur debita ipsius , & residua in usus filiorum suorum , & proximorum indigentium pro salute animae defuncti in pios usus per ordinarios committantur , nisi quatenus fuerit domino suo obligatus . here we see by the way plainly that the distribution in pios usus , was the devising them among the next of kin , according to their nearness and want ; not an imploying them to other uses , at the ordinaries arbitrary disposition . but also that the ordinary did in this age sometimes usurp the goods of intestates against the next of kin , is enough proved out of that legatine constitution of othobon , cum mortis incerta , &c. where it was ordained as you see before ; so in the words of it , that they should not dispose of them otherwise than according as that grant was in the grand charter ; that is , to the benefit of the next of blood : but the ordinaries had about this time , against the intent of that charter , so abused the right of succession , that it was related (c) for a constant truth , that the custome in britania was , that tertiae pars bonorum decedentium ab intestato in opus ecclesiae & pauperum dispensanda , &c. as innocent the fourth his words are , who lived and wrote in the time of h. . what other ground than the ordinaries ill dealing with the next of blood was for that tertia pars i conceive not ; unless the pope had some such other testimony touching it , as we find in an old manuscript volume titled (d) statuta synodorum written in an hand of near seven hundred years since , being a collection out of the fathers and old councils , made as it seems by some britain or irish-man , as we have elsewhere conjectured . in that statuta synodorum occurrs orig. in lib. de haeredibus : pater moriens det tertiam partem filiis , & tertiam caesari , & tertiam ecclesiae ; si non habuerit ecclesiam , det pauperibus , & si non habuerit caesarem nec ecclesiam , dividat inter filios & pauperes . but what author this is cited out of , i am equally ignorant , as i know not at all who was the author of the whole collection , or whence he had many other of his authorities . and other things that volume hath out of some old synod of ireland , which makes to our present purpose , if the canons of that synod had been at all binding in this state. and it was no such wonder , that some such practice might be under h. . for since also in the time of e. . the church so usurped in their jurisdiction of probates , that they made the executors wait on their officials at uncertain and remote places , and then also put them , at times , to the ransom of the fourth or fifth part of the testators goods , before they would give them probate ; which was complained (e) of in parliament amongst the grievances of the commons . chap. v. of that of bona intestatorum in manus domini regis capi solebant . for that of bona intestatorum in manus domini regis capi solebant , for which is cited (a) the close roll of h. . rot. . it is also most true , if rightly apprehended . all that appears in the record is , that the king wrote to the sheriff of lincoln , that constat nobis per inquisitionem nobis missam sub sigillo stephani de segrave , & aliorum proborum & legalium hominum , quod richardus filius dunae non obiit intestatus , and therefore he commands , that the sheriff should deliver all the goods of the said fitz-dune in manus nostras capta , to the prior of loketon , and others his executors , ad faciendum testamentum : neither are there any words that tell us of any capi solebant , or that these were taken in regard of dying intestate only . indeed it appears not sufficiently in the writ , why they were taken ; but it is most probable , that the seisure was for some debt due to the crown from the intestate , which afterward not appearing , or being satisfied , or it appearing that the executors by the taking upon them the execution of the testament , would subject themselves to the payment of it , it was fit enough to amove the kings hands , and deliver all over to the executors : he that well considers the statute of magna charta cap. . si quis tenens , and compares it with that of bracton , where he tells us , that the law was clear , that if any man dyed indebted to the king , the sheriff might (b) imbreviare , & attachiare cattalla defuncti , will soon see the probability of this , howsoever the words of the statute are only of the kings tenants : and it concludes also , as if it were only in case of the death of a testator in regard of relinquatur executoribus ad faciendum testamentum defuncti ; but plainly , that ad faciendum , &c. hath equal reference to the intestates as to testators : for no name of an administrator being then usually known , all were called executors that medled with the intestates goods ; and those executors were executores qui faciebant testamentum , that is , which instead of the intestate (c) did take such order after his death with his goods , as they thought he would have done if he had made a testament ; which may be conceived also out of the use remembred in that time , wherein sick men being unable , neither having time to express their meaning , chose out some friends that might be super (d) hoc expressores & executores ; which friends appointing of legacies ( as if the intestate had given them ) and making disposition of intestates goods , were as testaments of those intestates ; and they did truly as executors facere testamentum defuncti , in which sense it might be spoken of any executors or administrators that intermedled in those times . and many writs occurr in the close roll of king john and h. . that have expresly in them the amoving of the kings hands from the goods of the dead , when the seisure had been only for the debts to the crown , according to the statute of magna charta ( which in substance is the law at this day ) and bracton , by reason whereof , i see not cause enough , why we should understand that of h. . to prove any such thing , as a custom of the kings disposing or seising of the intestates goods , especially in regard that in the passages of the law , lawyers and records of that time , no mention is of any thing that affirms it to be a custom , or touches it as a common use . but admit that in fitz-dunes case it had been so , that the taking of the goods into the kings hand , had been because of his dying intestate only . it may therefore be accounted rather as a particular of the irregular practice of that time , than any example to prove a custom ; and whosoever is but acquainted with the course of the records of king john and henry the third his time , must soon see writs enough that agree not so much as with any setled course of law , but taste rather of some sudden or arbitrary course of granting them . indeed some two years before that of fitz-dune , there is an example in bedfordshire , that might seem more fully to prove what is collected out of the other : the writ is thus , rex (e) vicecom . bedford salutem . praecipimus tibi quod blada & catalla quae fuerunt roberti de insula & rossiae uxoris ejus defunct . in wahall & brokeberge arestari facias & salvo custodiri , donec discussum fuerit in curia nostra ad quem catalla illa pertinent , & aliud inde praecipimus ; but this is often enough seconded with other examples that have for the most part a mention of the defuncts debts to the crown , that it cannot otherwise be understood , but either as founded upon that law of seising upon the goods for debt to the crown by prerogative , or as an example ( amongst many of other kinds ) that discovers a more arbitrary course sometimes in proceeding , than later time hath permitted . and according to one of those wayes ( but the first that is upon the statute of the grand charter is the fittest and most probable ) must that also be interpreted , where (f) h. . sends a writ to the sheriff of rutland to command him , that notwithstanding that robert de weston a parishioner of weston were drowned , and dyed intestate , he should yet facere willielmo de s. lando ( that is , to the parson of the parish ) habere nomine ecclesiae suae id quod ad eum pertinet , habendum de catallis quae fuerunt praedicti roberti , secundum consuetudines partium illarum : that was for the mortuarie , which properly and under that name then was determinable in the spiritual court. but surely we must conclude , that if there were any such practice by the officers of the crown in the time of hen. . to seise intestates goods generally , it was not so much the law of the time ; for if so , the records could not be but as full of examples of it , as the time was of the death of intestates , which questionless were very many ; but some such temporary usurpation , as in h. . pope innocent the fourth here had for a while executed by his ministers the franciscans and dominicans , in not only getting into his own hands , but also to his own use , all the goods of the clergy-men that dyed intestate through england , which as matthew paris that then lived , relates it , (g) cum audisset dominus rex , detestans romanae curiae augmentosam & multiplicem avaritiam , hoc fieri prohibuit , comperiens illud ad damnum regni & suum redundare praejudicium . afterward in the time of edw. . it appears by the statute of westm. . cap. . cum post mortem , &c. that the goods of intestates did come ad ordinarios disponend● ; which agrees with that of bracton before cited , and iterated in the same syllables in fleta (h) which was written under e. . and the disposi●ion of intestates goods was enquired after in those dayes (i) an ongst articles of ecclesiastical jurisdiction . and afterwards by the statute of e. . the ordinary was compelled to commit the administration of intestates goods to the next of kin : after which statute the name of administrator was common as their office ; and by that name such to whom the ordinary committed were sued , although before that time they were suable by the name of executors , and perhaps also by the name of administrators : (k) but that name is scarce found ( as i think not at all ) given a defendant to an action brought before seven years after the statute of e. . and in the parliament rolls of ed. . the administrators are designed only by the ceux quesont per l' evesque ordines en lieu des executors , where a petition is offered (l) by the commons , that such might have the like actions as their intestates : but the king answers , quant à ceux qui devient intestate le roy voet que l' evesque eit action en tien case depuis que il doit responder as autres . but from that of e. . saving only the alteration by h. . the law hath continued uniformly to this day . finis . notes, typically marginal, from the original text notes for div a -e senec. controv . lucret. l. . eno. annal. l. . plutar. de audiènde . plutar. lib. orac . pyt● . marcian . heracleot . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . philip. honor . thes. politic . lat. & ital. machiavell in principe & comment . ad liv. l. . c. . & . cujacius . al●er . gentil . l. . c. . de jure bell . h. cardan . in ptolem. l. . judic . astron . text . . stat. . silv. claudian . in laud. serenae uxor . stilic . l. . sect. . omnia . c. de vet . jur . en●cl . virg. aen. . lucret. l. . de rer . nat . virg. l. . aeneid . aristoph . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . hegesand . delphus ap . athen. dipnos . . horat. carm. . od. . plin. epist. ad nat. hist. senec. praef . ad controver . ovid. fast. . notes for div a -e ptol. . geogr. & . quadrip . & pausan. l. . jornand . de reb . goth. c. . steph. ad laert. aug. de civ . dei , l. . c. . laert. lib. . soph. in oedip . in colon. plut. in lib. de exilio . nat. comes , mythol . l. . c. . plut. de iside & osiride . odyss . . exod. . psal. . paral. . munst. ad gen. c. . plut. de serâ dei vindictâ . camden . senec. epist. . gen. . bodin . l. . daemononian . forcat . l. . de gall. imp. serv. ad . aeneid . norden in brit. specul . senec. nat. quaest . l. c. athen. dipnos . l. . jos. scal. in elench . orat. chroa . d. par. trithem . lib. de secundis . ovid. . fast. heuter . de vet. belgio . l. . c. ● . ovid. metam . . herodot . in euterpe . stat. hen. ● . c. . justin hist. l. . arist. . eth. ff . de orig. jur . l. . metam . . & lucr. l. . cum poetarum turba . august . de civ . dei l. . c. . hom. iliad . . senec. ep . . plut. de isid. & osirid . joseph . adv . app. l. . plut. in lib. de homero . plut. lib. de musicâ . plato in minoc . sol. polyhist . cap. . eunap . in vit . porphyr . plin. nat . hist. l. . c. . gorop . in gal. paul. merula , in cosmogr . part . . lib. . num. . . ezra . . strab. geogr. lib. . caes. de bello gall. l. . vulcan . in app . ad jornand . goth. munst. cosm. l. . caes. bell . gal. l. . flotoman . c. . franco-galliae . caes. bell . gal. l. . lips. elect. lib. . cap. . & quaest . epistolic . l. . c. . plin. nat . hist. l. . c. . plut. de orac . def . herod . euterp . eustath . ad . iliad . senec. in apocol . plin. l. . c. . br. tuin . apolog . antiq . academ . oxon. l. . §. . reuch . l. . de arte cabalist . lips. stoic . physiolog l. . dissert . . & vide forcatulum l. . de gall. imperio . laert. l. . & plut. orat . de esu carnium . senec. epist. . clem. l. . strom. apud p. merulam in cosmogr . part . lib. . camden . bodin . de repub . l. . c. . in praesat . ad l. . relat. liv. lib. . plut. de virtut . musicr . aug. de civ . d●i l. . c. . athenaeus . paul. aemil. hist. franc. l. . ovid. de arte amandi l. . tac. in vit . agric . & annal. l. . eurip. in medeâ . bodin . de repub . l. . c. . pomp. mela , l. . c. . gorop . in francicis . malmesb. gest . reg . l. . c. . connub. tam. & is●s . plato de rep . lib. . arist. polit. l. . c. ult . trismegist . solin . polyhist . cap. . v. plut. quaest . centuriat . rom. . br. tuin . apolog . oxon. l. . §. . v. plut. sympos . l. . c. . laert. l. . plut. symp . l. . c. . georgic . . athen. dipnos . l. . & . suid. in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . euseb. praepar . evang. l. . apud abrah . ortel . in theat . mundi . munster . boëmus , &c. theocr. eidyll . . plaut . cur●● id. amphitr . id. casinâ . plut. de aud . poet. ovid. de art . am . l. . bald. l. . consil . . alber. gentil . de nupt . l. . c. . ovid. amor . l. . eleg . . id. l. . eleg . . id. de remed . amor . l. . virg. in ceiri . malmesb. de . gest . reg . l. . c. . dio hist. rom. l. . senec. in octav. act . tac. annal . l. . dio hist. l. . camden . & lips. ad l. . tac. num . . agell . l. . c. . camden . colonia castri , whence the river called coln . senec. ad alb. c. . lips. de mag . rom. l. . c. . gild. in epist. de excid . brit. notitia provinc . tacit. vit . agric. juvenal . sat. . plati● . in vit . eleutherii . ovid. fast. l. . jo. fox hist. eccles. l. . zofim . l. . notit . provinc . utr . imper. l. . comm . c. . & l. . comm . pancir . c. . ja. douz . annal . holland . l. . & . procop. bell . goth. l. . aethelwerd . lib. . fo . . adam brem . hist. eccles . brem . & hamburg . c. . ex bibliotheca henr. ranzovii . nithard . l. . munst. cosmog . l. . plut. in sympos . plaut . in aulul . act . . martial . l. . epig. . callimach . epig. . plaut . in asinar . anacreon . carm . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . et tacit. caes. de bell . gall. l. . senec. de benefic . l. . c. . proverb . . juvenal . sac. canut . legi can . . theognis . odyss . . . in allegoriis homeric . martial . l. . epig. . bracton . de coronâ l. . c. . an. ed. . fol. . à briton . cap. . ovid. metamor . l. . matth. paris in h. . pag. . vid. l. . art . . aluted . leg . can . . dion . halic . lib. . flor. hist. rom. l. . c. . lamprid. v. bodin . de rep . l. . c. . & franc. hotom . disp . feud . cap. . bed. hist. eccles . l. . c. . fest. verbo pecul . & verbo ovibus . v. inae leg . cap. . malmsb. de gest . pontif. l. . ranulph . higden in polychron . joan. carnotens●s de nugis curial . l. . c. . caxt. cap. ▪ rotulus wintoniae . hist. cantuariensis . canut . leg . . leg. fdw. confess . cap. . bract. de coronâ , l. . c. . pont. heut . de vet . belg. l. . c. . jul. pollux . l. . c. . . edw. iii. itin. north. tit . coron . . edw. . itin. cant. * perhaps it should be tincham . bract. lib. . de coronâ c. . an. . ed. . alured . rhivallens . ap . tuin . apol. ant . oxon. l. . §. . dionysius . aeneus . malmsb. lib. . de pontif. & de gest . reg. . bract. lib. . de coron . cap. . ingulphus . joh. pris. defens . hist. brit. camdenus è sarisburiensi . c. de donat . inter virum & uxorem . l. . in epist. ad l. . relat. anno dom. . ingulph . matth. paris hist. major . pag. . ingulph . ralph holinshed in hen. . chart. archiep . cant. see the charter of edw. conf. in english rhyme , camden in essex . ingulph . ingulph . * the saint , to whom the monastery was dedicated . notes for div a -e gerv. tilb. de scacc . cap. . camden . guil. le rouille alencon . claudian . in . cons. honorii . dooms-day . horat. art . poetic . leland . matth. cantu . in antiq. eccles . britan. tuin . apol . an t oxon. lib. . §. . camden in ord. angl. macrob. saturn . lib. . cap. . vopisc . in aurel. lips. ad . annal. tacit. num . . ingulph . m●lmsb . lib. . cap. . a. ch. . guil. mapaeus . camden . lib. feud . . tit . . stat. ed. . cap. . matth. paris . polydorus . coverfeu . alberic . gentil . de jure bell . lib. . c. . august . de civ . dei. l. . c. . pausan. atticis . terms . justices of peace . a. m. . in bot. chart . rich. . pro decan . & capit . eccles. lincoln . leg. edgar . cap. . petron. arbit . basil. concil . sess . . duaren . de benef. l. . c. . vid. platin. in joh. . vitâ . canut . leg . cap. . & ed. confess . bracton . lib. . cap. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in novell . lev. . hotoman . in verbo feudal . beleu . carol. sigon . de reg . ital. lib. . v. hotom . comm . ad . lib. feud . mariana hist. hispan . lib. . cap. . canut . cap. rich. . tit . testament . . lind provin . constit . de testam . c. stae●urum . & de immun . eccles. c. accidit , verb. abolim . glanvil . l. . c. ● . c. de testam . l. consulta divalia . hotom . feud . hauber●ic . in diction . morus in utopiâ , l. . de mirac . thom. ap . fox hist. eccles . lib. . guli . gemetic . de ducib . norm . lib. . cap. . fest. latro. heb. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 latro à 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 latus . bodin . de rep . l. . c. . dist. . c. . ff . ad leg . corn. de sicar . l. . §. ult . bract. lib. . tract . . c. . & stams . plac . coron . l. . c. . stow , & v. malmesb. l. . de gest . reg . fol. . spec. just. cap. des articles , &c. lamb. itinerar . cant. west . . c. . pat. ed. . ovid. art. am. lib. . v. leg. athelstan . . bellarm. l. . de rom. poutif . c. . polycrat . l. . c. . rot. parl. rich. . camden . a. . metamor . l. . v. rog. hoveden . fol. . coke praesat . ad lib. . assi● . pl. . & . ed. . ti● . barr. ● . annal. hiber . . sub henr. . malmsb. l. . de gest . reg . c. . & ingulph . fol. . malmsb. l. . de gest . pont. caes. germ. ad arat. in aquario . pindar . olym. . lips. poliorcet . lib. . dissert . . chauc . in prolog . of the sumners tale . pet. blesens . app . ad ingulph . c. de poeni● . l. . sancimus . v. canut . leg . . fox . in hist. eccels . ed. . rescript . dat . . ral. maii ap . veterem urbem , pontificat . . caes. comm . l. . ath. dipn. l. . feud . l. . tit . . otho fris. lib. de frederic . . radevic . l. . c. . bract. l. . de essoniis , c. . & ed. . fo . . a. ed. . fol. . . v. ed. . tit . attaint . . ● ed. . tit . challenge . . plo. com . fol. . h. . fol. . bract. tract . de coron . l. . glanv . l. . c. . polydor. hist. l. . matth. park . in vit . rob. archiep. cant. malmesb. l. . de gest . pontif . lact. instit. l. . de divi● . praem . c. . hoveden . annal . l. . coel. rhod. antiq . sect . l. . c. . sophocles in antigone . arist. ▪ de coelo . iliad . . deut. . zanch. de nat . dei , l. . c. . reuchl . de verb. mirif . l. . c. . psalm . hebr. . . aeneid . . anthol . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . epigr. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . polyhist . l. . c. . ovid. fast. . senec. ep. . mart. del rio disq mag . l. . sect . . & . ovid. fast. . pic. mirandula in heptaplo . pindar . olymp. . vitâ roberti . decret . tit . de vulgar . purgat . caus . . quaest . . bract. l. . tract . . c. . & canuti leges . matth. paris . v. britton . cap. d' appeales , and temp . ed. . tit . quod permittat . . temp. ed. . tit . attorney , . polyd. hist. angl. . tuin . com. de reb . albion . dav. pouel . in epist. guli . fléetwode . caes. l. . de bell . gall. paul. merula . ingulph . camden . polyd. hist. angl. l. . mod. ten . parl. jo. caius antiq . cantabrig . l. . v. ed. . fol. . august . de civ . dei , l. . c. . ethelwerd . l. . c. . hist. eliens . camd. in northampt. v. kel . relat . hen. . fol. . stat. rich. . c. matth. paris , pag. . brook tit . prerogative . . fr. thin . in contin . chr. eliz. matth. cant. in odonis severi vitâ . camden . huntingd. hist. l. . camden . leg. edw. . & canut . . leg. edgar . cap. . synod . antioch . c. ● . dist. . c. . malmesb. de gest . reg . l. . ad leg . . de origin . jur . roger de hoveden in h. . notes for div a -e lucan . notes for div a -e v. sr. w. raleigh fol. . beros . antiq . chald. lib. . & ad cum annius de viterbo . diog. laert. in vita philosop . lib. . & vide basingstocke hist. lib. . flor. hist. aetat . . hist. pag. . georgic . . senec. epist. . herodot . l. . officium erat imperar● , non regnum , seneca . plat. in minoc . iliad 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 & saepius alibi . joseph . contra appion . lib. . plutarch . in lib. de homero . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . & hesiod . in theolog. aeneid . . & . summa foelicitas erat gentium in quibus non poterat potentior esse nisi melior . senec. epist. . l. . ff . orig . juris . ranulph . cestren . in polychronico . galfred . monumeth . lib. . cap. . & matth. westmonast . fo . . camden in rom. in brit. * v. spelmans gloss. del ley molmutii , tit . lex . . galfred . monumeth . lib. . cap. . & flor. histor . pag. . camden in append . ad . cornavios . notes for div a -e caes. de bello gall. lib. . & strabo , lib. . geograph . l. . ff . de orig. juris . juxta item lex civilis & canonica . extra de except . c. except ( de sacrosanct . eccles . ) li. placet . strabo , lib. . geograph . caesar de bell . gall. lib. . hotoman in francog . cap. . absolvent te lectori si consulas , aldus manutius ad lib. . caesaris , hotomannus in franciogalía , paulus merula in cosmogr . part . . lib. . cap. . & de caeteris , quae hic ad caesarem , juffus lipsius in comm. ad tacit. hist. lib. . sect . . & in quaest . epistolic . lib. . cap. elect. lib. cap. . caesar de bell. gall. lib. . in prim. incol . bodin . lib. de rep . ca. . just. instit . tit . de patriâ potestate . inde wapentach . liv. lib. . plutarch . lib. de virtut . mul. women's rule . tacit. in vitâ jul. agricolae & vide aristot. polit. lib. . cap. . caesar , lib. . de bell . gall . money . cambd. . timon apud athen. lib. . & . dipnosophist . dio cass. hist. rom. lib. . se●ec . in octa. act . . tacit. annal . lib. . dio cass. lib. . colonia haec victircensis dicta in antiqua inscript . apud lip. & camdenum . spens . in ruinis temporum . tacit. annal . lib. . camden in cornaviis , dovunis , brigantibus . agell . noct. attic. lib. . cap. . camden in brigantibus . lambard in archaenom . ovid. . fast. galfred . monumeth . lib. . cap. . notes for div a -e de germanis vid. plura apu● ca●sarem lib. . d● bell. gall. quae verò huc non proximè spectant . tacit. lib. de morib germ. vide leges ed. confess . ap . lamb. lips. in not . ad tacit. ibid. haec debemus virtutibus , ut non praesentes solum illas , sed etiam ablatas è conspectu colamus . senec . lib. . de benefic . ca. . vide epistolam bonifacii ad aethelbald . terre nient devisable . einhard ap . adam . bremens . in histo . eccles. cap. , & . bed. eccles. hist. lib. . cap. . malmesb. de gest . reg. lib. . cap. . gen. cap. . rotulus wintoniae . * al. absolutus . malmesb. lib. . de gest . reg . c. . athen. lib. . deipnoloph . stat. jac. cap. . ingulph . hist. pag. . & . feud . lib. . tit . chart. archiep . cant. vide etiam camden . in cantio pag. . & chartam aethelulphi super altare oblatam apud ingulph . pag. . in praefat. ad lib. . resp. notes for div a -e gervas . ti●b . de scac. ca. . conferas quae è guil. roville alenconiens . in tract . de duello transcript . cap . camden in divis. brit. hoveden . pag. . roger hoveden . in vit. h. . fo . . florent . wigorn. domesday . will. . gervas . tilb. cap. . rob. glocest. in hist. poet. matth. paris in guil. . pag. . camden . in norm . astipulatur matth. west . flor. hist. lib. . gervas . tilb. de scac. ca. . ingulph . hist. fo . . s● . e. . cap. . matth. paris . polydor. virg. hist. lib. . hen. hunting . lib. . hist. fol. . bract. lib. . tract . de coron . cap. ● . polydor. hist. lib. ● . lamb. explicat . verb. camden in norman d. ed. coke in p●aefat . ad lib. . notes for div a -e polydor. lib. . hist. matth. paris . malmesb. lib. . de gest . reg . notes for div a -e matth. paris , pag. . v. glanvil , lib. . cap. . lind. provinc . constit . de immunit . eccles. lib. . & de testament . statutum § ecclesiast . rich. . testam . . v. inf . in stephan . . c. tit . de testament . l. consulta divalia v. in johann . art . . v. hotoman . verb. feudal . hauberticum feudum . malmesb. lib. . de gest . reg . atque alibi antiquitus quod docent isocrates in oratione contra lochic . sen. epist. . lamprid . in alex. severo & alii , caeterum an in bonos motes , remque publicam . conducat , disputant : quin & ausi sunt negasle , frisius in lib. de rep. tho. morus , in utopiâ , &c. ex lib. monarch . cant. de m●rac . b. tho. apud foxum . in hist. eccles. lib. . fo . . malmesbur . guil. gemiticens . de ducibus norm . lib. . ca. . & contin . ad florent . wigorn . pag. . roger de hoved . annal . . fo . . malmesb. l. . math. westm. lib. . flor. hist. malmesb. l. . de gest . reg . mat. paris pag. . stovaeus annal . p. . flor. hist. l. . polyd. hist. lib. . halicarnass . . antiq . rom. & v. sueton. in caligula cap. . zas . in comm . ad lib. . f. de orig . turr. polyb. lib. . hist. ang. notes for div a -e malmesb. l. . hist. novell . guil. neubrigens . lib. . rer . anglic. cap. . huntingd. l. . hist. hoveden part . . f. . ibid. jo. salisburiens . polycrat . lib. . cap. . v. disceptationem de castellis episcoporum apud malmesbur . lib. . hist. novel . r. . rot. parliam . notes for div a -e guil. de novo burgo lib. . rer . anglic. cap. . matth. paris fol. . v. in johan . art . . vide verò rogerum hovedenum pag. . ex ms. vita thom. cantuar . robert glocest . hist. poet. reg. indic . fol. . fest. in verb. hemones . paul. merul. ad lib. . annal . ennli . pind. olymp. . lipsius lib. . poliorceticon chauc in prolog . and in the somners talc . matth. paris pag. . roger de hoved . annal . . fo . . matth. paris . hoveden part . . p. . quadripartitam etiam regni ad hunc modum sub eodem principe habes divisionem apud eundem , fo . . v. camden in ord. angl. pag. . quicum conferas feud . lib. . tit . . & . quin & malmesb . hist. nov. lib. . fol. . l. . solidatus , &c. reg. brev. judic . fo . . in hab. fac . vis . ranulph de glanv . lib. ● . ca. . bract. lib. . de acq . rer . dom . cap. . sect . . v. camden in ordin . angl. casum item nevillae in libr. . relat. d. e. coke huc refer . matth. paris pag. . rog. de hoved . part . . f. . notes for div a -e roger de hoveden , par . . fo . . leg. ed. confess . cap. . vide guil. de novo burgo rer. angl. lib . cap. . guil. neubrig . lib. . cap. . matth. paris . post hovedenum pag. . lib. rub. scace . roger de hoveden , pag. , & . matth. paris , pag. . hoveden part . f. . tempore e. . tit avowry ● . & reg. orig . so . . a. ●o . li. . avowry . . li. . fo . . b. hoveden part . fo . . * al. renovationem . notes for div a -e roger de hoveden pag. . matth. paris pag. . idem pag. & . hen. . idem pag. ● . camden in agro middlesex . matth. paris pag. . & seqq . v. stat . west . . cap. . art . cler . ca. . de election . merton cap. . confer . . li. . fo . . plo. com. fo . . bract. lib. . cap. . sect . . & indicem ad plo. comm. part . walsing . hist. e. . v. in h. . art . . in bibliotheca d. ro. cotton à connington eq. aurati . stat. annal. pag. . notes for div a -e (a) ff . test. quemadmodum aperiant . per tot . et vide etiam auth. . c. . sit igitur licentia . (b) de episc. l. . & tit . de testam . l. . & . & caput theodos . li. . tit . . l. . ubi visendus interpres vetus . (c) authent . . & ibid. cujacius , & videsis gloss. graeco-barb . ●eursii in 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . (d) novel . formulas vet . testam . aperiendorum , videsis i. paul regest . senrent . l. . tit . . & marculph . formul . l. . c. . & . (e) c. de episc. & c●er . l. . repetita . (f) hostiens . in prooem . sum . & vetustio●es canonist . passim . (a) cap. . (b) dist. de secular . negotiis , cap. . (c) ad c. nos quidem extra tit . de testament . (d) tit. de instrum . edit . s. ostens . . vid. d. d. ad c. nos quidem , &c. si haeredes extra tit . de test . & linwood de test . c. item s. infin . & cap. stat . s. approb . (e) r. . test. . h. . fo . . b. (f) quod discimus ex bullarii summa quam edidit s. guaranta . (a) c. de episc. & cler. l. . nulli , & l. . si quis ad declinand . authentic . . c. . & vid. c. . (b) ff . de petit. haered . & tit . de legat . (a) extr. de test . c. . (b) lib. . c. . (c) videsis greg. lib. . epist. . & lib. . epist. . (d) vid. gonzal . zuarez prax. eccles. lam. . praelud . . sect. . & zerula prop. episcop . verb. leg . ad quaest . . (e) sess. . de reform . cap. . & sess. ult . de reformat . c. . (a) lamb. peramb . cant. p. . (b) hensloes c●se . rep. b. (c) in bibliothec. cottoniana . in lib. concessisset . (d) v. spicilegia in eadmerum . (e) lib. . cap. . & . (f) ed. . . a. ed. . . a. perk. . h. . . (g) ita jo. salisburgensis de nugis curial . lib. . cap. . & . (h) regiam majestar . lib. . cap. . (i) jo. sarisburg . epist. . (k) epist. . (l) barth . ad tit . de summa tr. l. . num . . r. . tit . testam . . tit. de test. c. stat . verb. ecclesiae libert . (a) cod. ms. hosp. s. leonardi in biblioth . cottoniam . hensloes case apud v. cl . ed. cook par . . fo . , , . that in france probates are in the spiritual courts . (c) choppin . de dom. franciae lib. . pag. . edit . . & videsis restam . leolodi abbatis floriani helgundi initio . (a) patent . . reg. johan . membr . . (b) rot. claus. joh. membr . . (c) claus. h. . part . . m. . & . (d) claus. h. . part . ● . membran . . idem . id ipsum est quod habetur in commentario . v. c. ed. cooke , f. . . sumptum est . (a) cap. . magn . char. quam etiam donavit johannes rex , uti videre est apud matth. paris . (b) h. . tit . prohib . . h. . ibidem . . h. . ibid. . h. . ibid. . (c) mich. & h. . rot. . &c. & h. . coram w. de raleigh , &c. rot. . in arce londinensi . (d) lib. . tract . de exceptionibus , cap. . pag. . b. (e) idem fo . . (f) register . orig. fo . . ( b ) &c. (g) fleta lib. . cap. . sect. executor . (h) ad tit . de testam . c. statut. verb. ecclesiast . libertat . (i) de episc. & cler. & nulli . & siquis ad designandum , , &c. (k) cod. de lib. natur. l. . matr. & author . , &c. notes for div a -e (a) canuti . leg . cap. . (b) ejusdem leg . cap. . (c) de moribus germanorum . (d) canut . legibus , cap. . (e) leg. ed. confess . cap. de heretochiis . (f) f. s. instit. de bonorum possessione . a adjiciuntur ingulph● crolandensi ms. in bibliotheca cottoniana . (b) apud matth. paris . (c) will. novoburg . hist. l. . c. . (d) glanvill . li● . . cap . (a) reperiuntur seorsimsaepius exemplaria illius diplomatis & penes math. paris , rogerum wendover ms. & thom. rudburne ms. extant , sed in archivis non extant . v. manuscriptum nostr . de magn. charta , cap. . in fine . (b) cap. cum mortis incerta . (c) provinc . constitut . tit . de immunitate ecclesiae , c. accidit novitate . (d) jo. de athona ad legat. othobonum c. cum mortis incerta . (e) praeter annales obvios , linwood ad c. quia verb. octoboni , tit . de constitutionibus . (a) bracton . lib. . de acq . rer . dom . cap. . sect . . (b) in annal. burtonensis coenobii penes v. cl . thom. allen oxoniensem ms. a. . (c) innocent . . tit . de simionia , c. ad apostolicum . (d) ms in thesauro cottoniano c. . de divisione hareditatis . (e) parl. e. . cro. hill. art . . & consule si vis parl. octab . purif . e. . art . . in archiris . (a) hensloes case apud v. cl . ed. coke part . sect . , . (b) ●racton . lib. . de acq . rerum dom . cap. . sect . . (c) ita facere testamentum nomine defuncti sumitur apud canonici juris peritos . videsis zebulam prax . episcop . verb. legatum , sect . . (d) mos iste reperitur apud matth. paris , histor . major , pag. . ubi de pontificia constitutione de intestatis edit . londinens . (e) clauf . h. . par . . memb . . (f) claus. h. . memb . . (g) matth. paris , fo . . edit . londinens . (h) fleta l. . c. . (i) quod videre est in cro. wigorn. ecclesiae in biblioth . cott. sub initio e. . e. . fo . . a. (k) videsis e. . fo . . a. sed & plura in l. . vir. cl . e. cook par . . fo . . & par . . f. . & . & ed. . tit . covenant . . (l) quindena pasch. e. . artic. . at the general-sessions of the peace, held at st. johnstone the first tuesday of may, . / by his highness the lord protectors justices of peace for perth-shire. perthshire (scotland). justices of the peace this text is an enriched version of the tcp digital transcription b of text r in the english short title catalog (wing p a). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo b wing p a estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. b ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) at the general-sessions of the peace, held at st. johnstone the first tuesday of may, . / by his highness the lord protectors justices of peace for perth-shire. perthshire (scotland). justices of the peace sheet ([ ] p.) printed by christopher higgins ..., edinburgh : . caption title. reproduction of original in: national library of scotland. eng justices of the peace -- scotland -- perthshire -- early works to . law -- scotland -- early works to . scotland -- politics and government -- - -- early works to . great britain -- history -- commonwealth and protectorate, - -- early works to . broadsides -- scotland -- th century. b r (wing p a). civilwar no at the general-sessions of the peace, held at st. johnstone the first tuesday of may, . by his highnesse the lord protectors justices of [no entry] a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion at the general-sessions of the peace , held at st. johnstone the first tuesday of may , . by his highnesse the lord protectors justices of peace for perth-shire . the justices of his highnesse peace for the said shire , in pursuance of that trust reposed in them for on carrying , preserving and maintaining the peace there , do judge it their duty to make the acts and resolutions of this and the former sessions known to all the shire , that such as transgresse , and commonly plead ignorance , may be inexcusable . and because provoking sins undetected and punished will undoubtedly prove a continual trouble of our peace . therefore it is ordained , that the clerks of the kirk-sessions of ilk paroch within the shire , in all time coming , aswell as since the first of january , . give a true extract to the clerk of the peace , of the names of all persons in the paroch convict of blasphemy , incest , adultery , fornication , swearing or cursing , breach of the sabbath , reproaching or mocking of piety , drunkennesse , tipling or such like crimes , that every transgressor since that time , who hath not been censured conform to the instructions by the judicatories competent , may be punished , and such wickednesse ; supprest and crusht for the future . that the overseers ( who are to be the most pious and understanding men in the paroch ) and constables , give up to the clerk of the peace a list of every alehouse-keeper who sell ale or strong waters , &c. at unlawful times , or who keep not good order in their houses , or who harbour or entertain lewd , profane , or idle men or women , sturdy beggars , tinkers , gamsters , or masterless people ; that all such ale-sellers , &c. may be punished as the cause requires . that all persons who are not in present service with a master , or who are not land-labourers , or who have not a trade , calling , or revenue to maintain them ; be reputed vagabonds , and their names sent by the overseers and constables in ilk paroch , to the next justice , or to the clerk of the peace , that they may be presently punished as such . that no housekeeper whatsoever , recept , harbour , give or send entertainment to any vagabond , thief , gypsie , unknown and suspect person , under the pains and penalties contained in the acts of parliament anent resetters . that if any paroch wherein a robbery is committed , do not answer the hue and cry raised on committing thereof , and follow the constable on the pursuit till he return , such paroch shall be liable in payment of the robbery . that all overseers take strict care not only to put all such beggars or poor people who belong not to the paroch , and want a sufficient passe or testimonial out of the paroch , but also to keep all such out , by sending such as return , to prison ; and presenting those who either harbour or give them any entertainment , that they may be punished therefore . that no person make any linnen-cloath to sell under an ell in breadth , if the price of the ell be above ten shillings ; and under three quarters in breadth , if the price of the ell be under ten shillings : and that no person bleitch any linnen with lime , under the pain of forfeiting all the cloath of lesse breadth , or so bleitch't : the one half whereof to any who after midsummer . discovers the same . that no person take salmond , or their fry , with an angle-wand in another mans waters , without the owners leave , under six pound scots ilk fault . that as the general-sessions for the peace are to be kept the first tuesdayes of february , may , august , and the last tuesday of october yearly ; so , special sessions are to be kept in ilk sub-division of the shire , the first tuesdayes of march , june , september and december yearly , where all differences betwixt masters and servants , and such other things as may be judged out of the general-sessions will be determined ; and every master who rests any fee to his servant , will at the general sessions be compelled to pay the same , if the servant sue therefore . that during the scarsity of money and cheapnesse of victual , no person give or take more fee or wages then what is after-specified , to wit , a common able man-servant , nine merks scots termly , with a pair of double-soal'd shoes , two ells of scots grays , and three ell of hardin , as his bounteth ; or in stead therof , one pound four shillings for the shoes , one pound four shillings for the hardin , and one pound sixteen shilling for the grays . a common able lad-servant , four merk and a half termly , with the like bounteth , or money proportionably therefore . a common able woman-servant , four merk and a half termly , with a pair of double-soal'd shoes , three ell of plaiding , three ell of hardin , and one ell of linnen , as her bounteth ; or in stead thereof one pound for her shoes , one pound seven shillings for the plaiding , one pound four shillings for the harden , and twelve shillings for the linnen . a common able lasse-servant is to have two merk and fourty penies termly , with the like bounteth , or money proportionably therefore . the harvest-fee of the able man shearer is not to exceed six pound , or six shillings ilk dayes work : and the able woman-shearer four pound , or four shillings for ilk dayes work . that all servants give their masters a quarters warning before their removal ; and that no servant pane out of , or come in to any paroch , without a testimonial under the minister and overseers hands of the paroch where they last dwelt , under the pain of being punished as vagabonds , besides fining their resetters . that no servant leave his master at the whitsundayes term , if his master be willing to keep him till the mertimasse following upon the former terms conditions , unlesse such servant show lawful cause for his departure , to some uninterested justice in that division where he dwelleth . shomakers are not to exceed two shillings six penies the inch of measure for the pair of double-sol'd shoes from eight inches upward ; and two shillings the inch from eight inches downward : and for the pair of single-soal'd shoes , one shilling six penies the inch above eight inches of measure ; and one shilling four penies the inch from eight inches downward : providing alwayes the leather be well tann'd , and the shoes sufficient mercat ware . weavers are to weave ilk ell of linnen , for one peny half-peny out of ilk twelvepence that the ell of green linnen is worth : plaiding for an half-peny the ell , with a peck of meal to the stone : grays and secking for twelve penies the ell : tycking and dornock napery for two shillings the ell ; and dornock table-cloath for four shillings the ell. wackers are to take for the ell of hosen , one shilling four penies only : and for ilk ell of grays or plaiding , four penies the ell only , and no more . masons , slaters , and wrights , are not to exceed a merk scots without , and half a merk with meat , for the dayes work , from march first to october first ; and thereafter to abate in their dayes hire proportionably , except they work with candle-light . taylors and shoe-makers are not to exceed four shillings a day and their meat , when they work abroad for daily hire . malt-makers are not to take above one peck of malt for making the boll of beer in malt. makers of peny-bridals are not to exceed eight shillings a-piece for the ordinary of ilk man and ilk woman , at dinner or supper . that as thir rates , fees and prices , &c. are not intended in the prejudice of those masters who usually hire their servants , and have their work wrought cheaper ; so all other persons are to conform themselves to the foresaid prices , under the pain of paying a terms fee , or ten dayes hire , the one half to the discoverer , and the other half to prisoners and the poor in the paroch . that the constables at ilk general sessions faithfully present all contraveeners of any of the above-written acts ; all forestallers or regraters ; all keepers of , or sellers with false weights , mets or measures ; and all other misdemeanors that shall come to their knowledge betwixt the sessions . that whatever person assists not the paroch-constables in executing their offices ; and whatever constable , overseer , or other person assists not , and gives obedience to the high-constable of ilk of their sub-divisions , in the execution of any orders of session directed to him , shall be imprisoned and fined as the justices think fit . that all overseers give notice to the next justice in that division where he dwelleth , before the first of june yearly , of such highwayes or bridges within the paroch as are out of repair , or fit to be made , that the same may be mended and made that summer , as the special sessions the first tuesday of june shall direct , under the pain of six pound scots for ilk failye . that any person who shall inform against the breakers of any of the above-written acts , and make it appear that the person or persons informed against , are guilty , shall be sufficiently rewarded for ilk discovery : and if it be made appear that any constable or overseer shall connive at , or compound with any transgressor of the foresaid acts , such constables and overseers shall be forthwith imprisoned , and fined , as the justices think meet . that as the dues of the clerk of the peace here , are not to exceed those of the clerks of the peace of mid-lowthian and fise-shires : so the dues of the justices clerks here are only : for all the recognizances written in one action , twelve shillings scots , payable by the party succumber : for all warrants or summons to compear anent one action , six shillings only , payable by the party aforesaid : for writing ilk witnesses deposition , two shillings , payable by the party aforesaid : for every absolvitor before a particular justice , six shillings : and for every mittimus , eight shillings scots . that correspondence be kept with our neighbour shires , for the joynt oncarrying of the work of the peace , and punishing all contraveeners of the acts and ordinances made in any of the said shires . that the constables cause read thir presents at every paroch kirk in the shire , after the first sermon ; and thereafter affix and set up the same on the most patent door thereof . extracted out of the registers for the peace of perth-shire . by robert andrews , clerk of the peace . edinbvrgh , printed by christopher higgins , in harts-close , over against the trone-church , . the laws and acts made in the first parliament of our most high and dread soveraign james vii by the grace of god, king of scotland, england, france and ireland, defender of the faith holden at edinburgh the twenty third day of april , by his grace william duke of queensberry ..., his majesties high commissioner for holding this parliament, by vertue of a commission under his majesties great seal of this kingdom : with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george viscount of tarbet, lord mcleod, and castle-haven, &c. ... laws, etc. scotland. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the laws and acts made in the first parliament of our most high and dread soveraign james vii by the grace of god, king of scotland, england, france and ireland, defender of the faith holden at edinburgh the twenty third day of april , by his grace william duke of queensberry ..., his majesties high commissioner for holding this parliament, by vertue of a commission under his majesties great seal of this kingdom : with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george viscount of tarbet, lord mcleod, and castle-haven, &c. ... laws, etc. scotland. cromarty, george mackenzie, earl of, - . scotland. parliament. [ ], , [ ] p. printed by the heir of andrew anderson ..., edinburgh : . reproduction of original in huntington library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- scotland. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - rina kor sampled and proofread - rina kor text and markup reviewed and edited - pfs batch review (qc) and xml conversion the laws and acts made in the first parliament of our most high and dread soveraign james vii . by the grace of god , king of scotland , england , france and ireland . defender of the faith. holden at edinburgh the . of april . by his grace william duke of queensberry , marquess of dumfreis-shire , earl of drumlanrig , and sanqhuar , viscount of nith , torthorwald , and ross , lord dowglas of kinmount , midlebie , and dornock , &c. lord high thesaurer of scotland . his majesties high commissioner for holding this parliament , by vertue of a commission under his majesties great seal of this kingdom . with the special advice and consent of the estates of parliament . collected and extracted from the registers and records of parliament , by george viscount of tarbet , lord m c leod , and castle-haven , &c. clerk to his majesties council , registers , and rolls , &c. edinburgh ▪ printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . cum privilegio . god save king james the seventh . laws and acts made in the first parliament of our most high and dread soveraign james vii . by the grace of god , king of scotland , england , france and ireland . defender of the faith. holden at edinburgh the . of april . i. act for security of the protestant religion . april . . our soveraign lord , with consent of the estates of parliament conv●…ned , ratifies and confirms , all the acts and statutes formerly past , for the securitie , liberty , and freedom of the true church of god , and the protestant religion , presently professed within this kingdom , in their whole strength and tenor ▪ as if they were here particularly set down and exprest . ii. a declaration and offer of duty by the kingdom of scotland , with an annexation of the excise to the crown . april . . the estates of parliament now conveened by his majesties soveraign authority , taking into their consideration , how this nation hath continued now upwards of two thousand years in the unaltered form of our monarchical government , under the un-interrupted line of one hundred and eleven kings , whose sacred authority and power hath been upon all signal occasions , so owned and assisted by almighty god , that our kingdom hath been protected from conquest , our possessions defended from strangers , our civil commotions brought into wished events , our laws vigorously executed , our properties legally fixed , and our lives securely preserved ; so that we and our ancestors have enjoyed those securities and tranquillities , which the greater and more flourishing kingdoms have frequently wanted . those great blessings we owe in the first place to divine mercy ; and in dependance on that , to the sacred race of our glorious kings , and to the solid , absolute authority wherewith they were invested by the first and fundamental law of our monarchy ; nor can either our records , or our experience instance ▪ our being deprived of those happy effects , but when a rebellious party did by commotions and seditions invade the kings soveraign authority , which was the cause of our prosperity , yet so far hath our primitive constitution , and fundamental laws prevailed against the innovations and seditions of turbulent men , as that these interruptions never terminated , but either in the ruine , or at least the suppression of these who at any time did rebel or rise in opposition to our government . and since so many ages hath assured to us the great advantages , which flow down to all ranks of people from the happy constitution of our monarchy , and that all our calamities have ever arisen from seditious invasions upon these sacred rights ; therefore , the estates of parliament for themselves , and in name of the whole kingdom ▪ judge themselves obliged to declare ; and they do declare to the world , that they abhor an detest , not only the authors and actors of all preceeding rebellions against the soveraign , but likewise all principles and positions which are contrary , or derogatory to the kings sacred , supream , absolute power , and authority , which none , whether persons , or collective bodies can participat of , any manner of way , or upon any pretext ▪ but in dependance on him , and commission from him . and as their duty formerly did bind them to owne and assert the just and legal succession of the sacred line as unalterable by any humane jurisdiction ; so now , they hold themselves on this occasion obliged for themselves , and the whole nation represented by them , in most humble and dutiful manner , to 〈◊〉 the hearry and sincere offer of their lives and fortunes , to assist , support , defend , and 〈◊〉 king iames the seventh , their present glorious monarch , and his heirs , and lawful successors , in the possession of their crowns ▪ soveraignty , prerogatives , authority , dignity , rights , and possessions , against all mortals : and withall , to assure all his enemies , who shall a●…venture on the disloyalty of disobeying his laws , or on the impiety of invading his rights , that such shall sooner weary of their wickedness , then they of their duty ▪ and that they firmly resolve to give thei●… intire obedience to his majesty without reserve , and to concur against all his enemies , forraign or intestine . and they solemnly declare , that as they are bound by law , so they are voluntarly and firmly resolved , that all of this nation , betwixt sixty and sixteen , armed , and provided according to their abilities , shall be in readiness for his majesties service , where , and as o●…t as it shall be his royal pleasure to require them . and since the excise of inland and forraign commodities granted to king charles the second , of ever blessed memory , by the . act of the parliament , during all the days of his lifetime , and prorogate by the . act of the parliament . for five years thereafter , will shortly terminat . and the estates of parliament considering the usefulness of this grant , to support the interest of the crown ; do as the first evidence of their sincerity in the foresaid tender of their duty , humbly and unanimously offer to his most sacred majesty king iames the seventh , their present monarch , and to his lawful heirs , and successors , in the imperial crown of scotland , the said excise of inland and forraign commodities , exprest in the said . act of parliament to be collected in the manner prescribed by the said . act of the parliament . for ever . and his majesty , and estates of parliament , by the force of this act , have united , annexed , and incorporated ; and unites , annexes , and incorporats the same to the crown of this realm , to remain therewith in annexed property in all time coming : and in respect that the alteration in the method of collecting the inland excise from what it was by the act , to that prescribed by the . act , parliament . will require some time to establish it in collection . therefore , his majesty , with consent of the estates , continues the collection prescribed by the . act , parliament , for the said inland excise for six moneths , from the first of may next allanerly . iii. act concerning citations in processes for treason . may . . our soveraign lord , with advice and consent of the estates of parliament , do hereby ratifie and approve , the former custom used by his majesties commissioners of justiciary , in proceeding against pannals already in prison , and indicted for treason , upon twenty four hours ; but for the future , his majesty allows such pannals to be cited on fourty eight hours ; and if the pannals represent such defences to the commissioners of justiciarie within that time , as may need an exculpation . his majestie with advice foresaid , allowes the saids commissioners to delay the trial till the days elapse , to which the exculpation is to be rais'd . iv. act concerning witnesses in processes for treason . may . . our soveraign lord , and estates of parliament , do statute and ordain , that such as being cited to be witnesses in the cases of treason , field , or house conventicles , or church irregularities , do refuse to depone , they shall be lyable to be punished as guilty of these crimes respectively , in which they refuse to be witnesses : it being alwayes hereby declared , that these depositions so emitted , shall not militate against the deponent himself any manner of way . v. act declaring it treason to take or owne the covenants . may . our soveraion lord , and estates of parliament , do hereby declare , that the gi●…ing , or taking , of the national covenant , as explained in the year . or of the league and covenant , ( so commonly called ) or writing in defence thereof , or owning of them as lawful , or obligatory on themselves or others , shall infer the crime and pains of treason . vi. act obliging husbands to be liable for their wives fynes . may . . our soveraign lord , considering , that the lords of his privy council , and other●… commissionated by his majestie and them , have fyned husbands for their wives withdrawing from the ordinances , doth with advice and consent of the estates of parliament , declare the said procedure to have been legal , and ordains the same to be observed in all time coming ▪ and ratifies all decreets and sentences granted against husbands for such fynes : reserving alwayes power to the lords of his majesties privy council , to absolve , or mitigat the fynes of such husbands as are known to be of loyal principles . vii . act anent porterfield of duchall , and concealing of supply given to rebels . may . . our soveraign lord , and estates of parliament , do ratifie , approve , and confirm the sentence of forfaulture pronounced by the commissioners of justiciary against iohn porterfield , sometime of duchall , and the interlocutors , and whole procedure of the saids commissioners in that process . and declares that the same was conform to the laws of this kingdom . and in general , statutes and declares , that the concealing , and not revealing of supplys given to , or demanded for traitors forfaulted for treason against the kings person or government , is treason , and to be judged accordingly . viii . act against preachers at conventicles , and hearers at field-conventicles . may . . our soveraign lord , considering the obstinacy of the fanatical party , who notwithstanding all the laws formerly made against them , persevere to keep their house and field-conventicles , which are the nurseries and rendezvouzes of rebellion . therefore , his majesty , with consent of his estates in parliament , doth statute and ordain , that all such as shall hereafter preach at such fanatical , house , or field-conventicles , as also , such as shall be present as hearers at field-conventicles , shall be punished by death , and confiscation of their goods . ix . act for the more effectual payment , and inbringing of his majesties rents and revenues . may . . our soveraign lord , and the estates of parliament , considering the great neglect and remissness of the sheriff , stewarts , baillies of bailliaries , and regalities , and their deputs , in their discovering , collecting , and inbringing of his majesties rents and revenues constant and casual ; and of the feuars and other vassals , who are lyable for the rents and duties of his majesties property , and the chamberlains thereof , whereby the payment of the same is fallen very much in arrear ; and the compting yearly in the moneth of iuly , according to former acts of parliament , is greatly neglected . therefore , the better to prevent the same for the future , his majesty , with advice and consent of the estates of parliament , not only ratifies and approves all former laws and acts of parliament made for in-bringing his majesties rents , and particularly the th act , d session of the first parliament k. charles the d , ordaining the same to be put in full execution , conform to the tenor thereof ; but likewise , further statutes and declares , that in all time coming , whatsoever sheriff , stewart , baillie of bailliarie , or regality , or their deputs , or chamberlains of his majesties proper rents respectivè , shall delay , or neglect to compear and compt yearly in exchequer , in the moneth of iuly , and accordingly receive their aeques , and exoneration of all that can be charged on them , as due and payable by them to his majesty ; that immediatly after they shall be charged and denunced for the same , at the mercat cross of edinburgh , conform to the former laws and practice ; and the horning and denunciation shall be duely registrat , that persons so denunced and registrat , shall ipso sacto , amit , loss and tyne ( during their life-time ) their offices of sheriff-ship , stewartry , bailliary , or chamberlanry , whether the same be heretable , or during life , or pleasure ; and it shall not be lawful for them by themselves , or their deputs , to exerce , or officiat therein at any time thereafter ; but the same shall vaik and fall in his majesties hands , without any declarator , or process of law : as also that all feuars , and other vassals of his majesties property , who shall neglect , or delay to compear yearly in the said moneth of iuly , in exchequer , and make compt and payment of the feu , blench , or taxt-ward-duties and others , due and payable by them , and receive their aequies and exonerations thereof accordingly ; so as two years thereof shall run together unpayed , and that they shall be therefore charged , denunced , and registrat , as is abovementioned , that immediately after the said denunciation , and registration , they shall be lyable for the double of the whole ●…eu , blench , taxt-ward , or other duties , then due and payable by them , and all execution shall passe against them therefore , sicklike as if the same were mentioned , and contained in the reddendoes of their infeftments ; and that by and attour , and but prejudice of the penalties formerly imposed , and payable by the said non-accomptants , conform to former laws . and it is further statute and ordained , that all sheriffs , stewarts , baillies of bailliaries and regalities , their clerks , and clerk-deputs shall be holden and obliged , to send lists from time to time to the lord high thesaurer , thesaurer deput , or clerks of exchequer , of all wairds and marriages , as well simple as taxt , that shall happen to fall and vaik in time coming , or that are already fallen within their respective jurisdictions , bearing the time of the decease of the person by whom the same vaiks , and of the successor , and their age , and whether married or not ; certifying all such clerks , as shall not , before the first-day of november next to come , report in exchequer the lists under their hands , of all such bygone casualities fallen , preceeding the date hereof , and thereafter from time to time , within six moneths after the same shall happen to fall and vaik , if the persons die within the kingdom ; that they shall amit , lose and tyne their office of clerk-ship , to be immediately disposed on , by these who shall have right thereto , without any declarator , or other process whatsoever ; and to the effect , they may the better know the tenor of the holding of all lands within their respective jurisdictions , his majesty , with advice forsaid , ordains the saids sheriffs , stewarts , baillies of bailliaries , and regalities , and their deputs , at the next michaelmass head-court , and at such other dyets , as they shall think convenient , to cause all the vassals within their respective jurisdictions produce before them their charters , to the effect the clerks may record the reddendoes thereof in their books , who are ordered immediately thereafter to return them to the parties , without payment of any money for the same . and ordains letters of horning to be directed against those who shall fail to produce their charters , as said is ▪ and it is hereby declared , that in all time coming , when poynding is used for the kings proper rents , the apprising of the goods poynded may be al 's legally done upon the ground of the lands allenarly , as if the samine were apprised at the mercat cross of the head burgh of the jurisdiction , notwithstanding of any law , or practice in the contrary . x. act concerning iudicial confessions before the commissioners of iusticiary . may . . the kings majesty , and estates of parliament , do hereby statute and declare , all confessions of parties , after they have received an indictment in the case of treason against the kings person or government allenarly , emitted before the commissioners of justiciary , sitting in judgment , and subscribed by the pannal , or by the saids judges , in the case where the pannal owns the confession , as it is reduced in writ , and yet either cannot , or refuses to subscribe , shall be considered as a judicial confession , and shall be as probative to assizes , as if the same had been emitted in presence of the assize , notwithstanding of the . act of the parliament of king iames the sixth , and that if assizers assoilzie , notwithstanding of such confessions , they shall be lyable to a process of errour ; and this law to be of force only to the next session of parliament ; and the . act of the . parliament of king iames the sixth , is to continue in its full force as to all the rest of its tenor and contents . xi . act obliging persons to accept offices . may . . our soveraign lord , with advice and consent of his estates of parliament , do hereby statute and declare , that if any of his majesties subjects within this his ancient kingdom , shall refuse to accept the office of magistrats , justices of peace , constables , officers in the militia , or any other employment laid on them by the king or council , they shall be fyneable for their said contempt , unless they can propone such reasonable excuses as may satisfie the lords of his majesties privy council , to whom the execution of this act is remitted ; and this without prejudice of any former right or priviledge given to the royal burrows for obliging burgesses to accept of offices and employments within burgh . xii . act of supply . may . . the estates of parliament , calling to mind the many great blessings they have , and do enjoy , under the protection of the royal government , and especially by the many deliverances from the rebellious insurrections and designs of fanatical traitors , from whom they could expect no less then confusion in religion , oppression in their estates , and cruelty against their persons and families : and that the terrour of his majesties forces hath been very instrumental for procuring our present security ; but considering , that not only these enemies continues their inveterat hatred against king and people , but that their frequent disappointments have heightned their melice to despair ; and that the present forces may be too few to undergo all the fatigue which his majesties service , or the protection of the countrey doth require . and to demonstrat to all seditious men , that this nation is resolved to bestow all they have in the kings service , rather than to be exposed to the least of their insults . do therefore , for themselves , and the nation represented by them , make a hearty and dutiful offer to his majesty of two hundred and sixteen thousand pounds yearly , payable at two terms , viz. whitsunday and martinmass , each year , beginning at whitsunday next , and so furth termly , and that over and beside the five moneths cess already imposed on this kingdom by the . act of the parliament , whereby there will be four moneths cess payable at each term hereafter , beginning at whitsunday next . and as a further evidence of their entire affection to the sacred person of his present majesty , they humbly and heartily offer a continuation and prorogation of the said four moneths cess termly , from the said term of whitsunday inclusivè , during all the terms of his majesties lifetime ( which god almighty long preserve , ) that being the greatest of our earthly wishes , as it is the chief of our temporal felicity and glory . and for the better and more speedy inbringing of payment of the saids eighth moneths cess , the kings majesty , with advice and consent of the estates of parliament , nominats , appoints , and ordains the persons underwritten to be commissioners within the respective shires , for ordering and uplifting of the saids eighth moneths cess , viz. for the shire of edinburgh . the earl of lawderdale , the earl of lothian , the viscount of oxfuird , the viscount of tarbet , the lord torphichen , the master of balmerinoch , the lord advocat , the lord justice clerk , the lord reidfuird , the lord edmingstoun , the lord newbyth , sir iohn maitland of ravelrig , sir iohn dalmahoy of that ilk , sir william nicolson of that ilk , sir iohn fowlis of ravelstoun , sir alexander gibson of pentland , sir iohn clerk of pennycook , sir william drummond of hathorndean , sir patrick nisbet of dean , sir iohn young of leny , sir william murray of newtoun , hugh wallace of inglistoun , sir iohn ramsey of whitehill , sir robert baird of sauchtounhall , sir william sharp of stony-hill , sir william binning of wallyford , sir iames dick of priestfield , henry trotte●… of mortounhall thomas craig of riccartoun , alexander nisbet of craigintinny , robert miln of barntoun , patrick hamilton of falla , iohn cunninghame of woodhall , mr. walter pringle of graycruik , mr. iames deans of woodhouslie , mr. rodorick mackenzie of prestounhall , mr. david watson of sauchtoun , iohn fowlis of ratho , iames baird younger of sauchtounhall , iames murray younger of deuchar , charles murray of hadden , sir william hope of grantoun , mr. iames hunter of murrayes , the eldest baillie of musselburgh for the time , the eldest baillie of dalkeith for the time ; the earl of perth , sheriff-principal , conveener , and in his absence the lord collingtoun . for the shire of haddingtoun . the earl of wintoun , the earl of tweddale , lord yester , lord elibank , lord belhaven , sir iohn sinclair of lochead , archibald murray of spott , mr. robert lawder portioner of belhaven , archibald sydeserf of roughlaw , sir andrew ramsey of waughtoun , francis kinloch of gilmertoun elder , sir william baird of newbyth , patrick brown of colstoun , iames dowgall of nunland , robert hepburn of beer●…oord , iohn seaton of barns , sir robert sinclair of stevinson , sir iames stansfield of new-milns , richard cockburn of clerkingtoun , sir iames hay of linplum , george swintoun of chesters , mr. george halyburton of egglescairney , sir iohn lawder of fountainhall , george brown younger of colstoun , adam cockburn of ormstoun , adam hepburn of humbie , david hepburn of randerstoun , iohn wedderburn of gosford , sir iohn nisbet of dirltoun , william congleton of that ilk , sir george sutie of balgone , sir iohn ramsey of westerfalside , iohn seton of st. germans , sir william hamilton of prestoun , george morison of prestongrange , iohn sleich provost of haddingtoun , william mccall baillie there , iames forrest baillie in dumbar , charles maitland baillie in north-berwick , the earl of wintoun conveener , and in his absence george brown younger of colstoun . for the shire of berwick . iames earl of hume , the lord harcars , mr. charles home of aytoun , sir william nicolson of cockburnes-path , sir iohn sinclar of lonformagus , sir alexander don of newtoun , sir iohn hume of blackader , sir iames cockburn of that ilk , archibald cockburn of borthwick , sir patrick hume of burns-bank , iohn rentoun of lambertoun , sir iames cockburn of riselaw , iohn ker of west-nisbit , william cockburn of west-winsheil , mr. alexander brown of thorny-dykes , william ramsay younger of edingtoun , iohn edgar of wedderly , henry troiter of mortounhall , andrew ker of moristoun , andrew ker of little-dean , iames nicolson of trabroun , iohn dunce of growel-dykes ; iohn hall of old-cambuss , iames cockburn of whin-rigg , william cockburn of caldra , mr. henry hume of keams , ioseph dowglas of edringtoun , henry sinclar of wouldforland , george hume of saint leonards , mr. patrick craw of heugh-head , charles swintoun younger of mersingtoun , iames brown younger of blackburn , iames pringle of ruthchester , thomas rochead of whitsumhill , iames peter of chapel , thomas falconer of kincorth , mr. iames dowglas of earnslaw , mr. iohn cockburn of easter-winsheil , mr. duncan forbes of uxstoun , iohn sleich of greengelt ; sir archibald cockburn elder of lantoun , or in his absence his eldest son , conveener . for the shire of roxburgh . the earl of lothian , the lord cranstoun , the lord iedburgh , the lo. newbottle , sir william ker of greenhead , sir francis scot of thirlestane , sir william elliot of stobs , sir william bennet of grubit , henry mcdougal of mckerstoun , sir iohn scot of ancrum , sir robert pringle of stitchel , sir patrick scot of lang-newtoun , william ker of chatto , francis scot of gorron-berry , iohn ker of frogtoun , william scot of raeburn , andrew ker of little-dean , charles murray of hadden , mr. patrick don of advocat , robert scot of horslihill , thomas m cdowgal younger of m ckerstoun , iohn scot of rennel-bourn , george rutherford of fairnintoun , iames don of smelholm , iohn halyourtoun younger of murehouselaw , thomas rutherfoord of knowsouth , gledstoun of that ilk , andrew ainsley of black-hill , the provest of iedburgh , robert fae bailie of melross , robert eliot of midlem●…ln , robert eliot of lairistoun , thomas scot of quislet , william murray younger of hadden , mr. francis pringle sheriff-deput , william eliot of grange , langladge of that ilk ; sir william dowglas of cavers , conveener . for the shire of selkirk . the earl of traquair , the lord elibank , mr. william hay of drumelzier , sir francis scot of thirlstain , iames murray of philip-hauch , sir patrick murray of deuchar , thomas scot of whitslad , iohn riddel of hayning , hugh scot of gallosheils , alexander pringle of yair , iames murray of deuchar younger , iames scot of bowhill , thomas scot of todrig younger , william scot of braidindows , ker of sunderlandhall , gideon murray of sundhope , francis scot of gilmanscleuch , andrew plumber of midlesteid , iohn currer of howden , william mithilhill , late baillie in selkirk ; the laird of drumelzier conveener . for the shire of peebles . iames earl of mortoun , iames lord aberdour , charles earl of traquair , iohn earl of tweddale , iohn lord yester , collonel iames dowglas of skirling , william hay of drumelzier , sir archibald murray of black-barony , sir william murray of stainhope , iohn veitch of davick , richard murray of spittle-hauch , iames geddes of kirkoord , iohn hay of haystoun , william burnet of barns , iames williamson of cordrono , iohn brown of scotstoun , iohn dycks of whitslad , george hunter of pollwood , david plenderleith of blyth , william burnet of keilzie , alexander horsburgh younger of that ilk , james nasmith of posso ▪ alexander murray of hall-myre , john murray of cringilty , john balfour of kilzia , robert burnet of little-orinstoun , william horsburgh of that ilk , lawson younger of cairmuire , the provost of peebles for the time , alexander baillie younger of callands , james russel of slipperfield , alexander hamilton of coldwall , james chisholm of hayrhope , pennicook of romano , william morison of prestoungrange ; collonel james dowglas of skirling conveener . for the shire of lanerk . william duke of hamiltoun , james marquess of dowglass , james earl of arran , alexander lord blantyre , john hamiltoun of eldershaw , john hamilton of kilkerscleuch , william baillie of littlegil , john carmichael of boningtoun , alexander menzies of culteralloes , mr. andrew brown of dolphingtoun , james moorhead of persielands , christopher baillie of walstoun , james somervel of gladstanes , sir george lockhart of carnwath , john somervel of spittel , james lockhart of cleghorn , the laird of lee , menzies of castlehil , gavin hamilton of raploch , john hamilton of broomhill , william hamilton younger of raploch , sir robert hamilton of silvertoun-hill , iohn robertoun of ernock , iames oswald of fingaltoun , iohn hamilton of barncluith , the bailies of hamiltoun for the time , iohn hamilton of blantyre-ferm , sir william maxwel of calderwood , alexander steuart of torrens , robert cunninghame younger of gilbert-field , sir william fleming of fairholm , the baillie of the regality of glasgow for the time , mr. hugh corbet of hardgray , corbet of tollcorse , mr. archibald roberton of bedlay , iames dunlop of gardenkirk , iames muirhead of bradiesholme , william cleiland of faskine , cochran of ruch-soals , alexander cleiland of that ilk , iohn hamilton of wood-hall , george muirehead of stevinstoun , sir iohn harper of cambushnethem , william hamilton of wishaw , patrick hamilton of green , alexander hamilton of dalzell , william inglis of murdochstoun , william cleiland younger of hairshaw , the duke of hamiltoun conveener . for the sheriffdom of nithsdail and dumfreis . william duke of queensberry , iames earl of drumlanrig , iohn earl of carnwath , william earl of annandale , lord william dowglas , sir robert dalzel of glenae , sir iames dowglas of kelhead , sir robert greirson of lagg , sir thomas kirk patrick of closburn , sir robert lourie of maxweltoun , sir iames iohnstoun of wasteraw , sir patrick maxwel of springkell , thomas charters of ammifield ; iohn carruthers of holl-mayns ; william dowglas of dornock ; iohn dalzell younger of glenae ; iohn ferguson of craigdorroch ; iames iohnston of corre-head ; dowgal maxwell of cowhill ; robert maxwell of carnsalloch ; george maitland of eccles ; iohn greirson of cappinoch ; william crichton of crawfoord-toun ; matthew hairstains of craigs ; iohn craik of stewartoun ; iames menzies of enoch ; iames carruthers , chamberlain to the earl of annandail ; the sheriff deput of dumfreis for the time ; the provost of dumfreis for the time ; the duke of queensberry conveener . for the sheriffdom of wigtoun : the earl of galloway , robert steuart of reavingstoun , sir andrew agnew of lochnaw , william steuart of castle-stewart , sir charles hay of park , sir godfrey m cculloch of myrtoun , sir william maxwel of murreth , sir david dumbar of baldoun ▪ iames dumbar of mochrum , patrick mcdougal of logan , william mcdougal of garfeland , iohn steuart of phisgil , iames agnew of lochnaw , sir iohn dalrymple of stair , iohn blair of dunskey , andrew agnew of sheuchan ▪ george steuart of tonderghie , iohn vauce of barnbarroch , iohn ferguson of doweltoun , james gordon of craiglaw , william coultran , provost of wigtoun , gilbert neilson of craigcastle ; the earl of galloway conveener . for the sheriffdom of air. the earl of dumfreis , the lord boyd , the lord cochran , the laird of craigie , the laird of blair , iohn chalmers younger of gaitgirth , major thomas kennedy of baltersane , william wallace of sewaltoun , mr. rorie m ckenzie of dalvenan baillie of carrick , james whitefoord of dunduff , john hamilton of inchgoterick , iohn wallace of cames-skan , william steuart of showood , hugh wallace of galrigs , hugh kennedy of donan , robert fullartoun of craighal , the lord montgomery , the lord creichtoun , the lord bargany , the laird of culzean , sir david cunninghame of robertland , alexander kennedie of kilhenize , cathcart of carletoun , hugh wallace of inglistoun , the laird of penustoun , iohn boyl of kelburn , andrew brown of boghead , robert wallace of underwood , robert crawfoord of crawfoordstoun , the provost and bailzies of air for the time , the provost of irwing for the time ; the earl of dumfreis conveener . for the sheriffdom of dumbartoun . the laird of luss , the laird of ardingaple , the laird of kilmahew , the laird of ardoch younger , the laird of colgrean , mr. iames smollet of stainflet , robert grahame of callingade , alexander m caulay of dureling , glaud hamilton of cochnay , william bonteir of mildiving , walter m caulay of stuck , iohn kirkmichael , chamberlain to the earl of wigtoun , the magistrats of dumbartoun for the time ; the laird of orbistoun conveener . for the sheriffdom of bute . the duke of hamiltoun his grace , the bailie in arran for the time , the earl of eglingtoun , ninian bannatyne of kames , charles steuart of killcatton , john boyl of kellburn , mr. iohn steuart of ascog , mr. robert steuart advocat , archibald steuart of kinwhinlick , ninian steuart of largiezian , robert steuart of macknack , iohn steuart of linchael , culbert steuart of ardinho , archibald glass , sheriff-deput of bute , robert ballantine of lewbas , the magistrats of rothesay for the time , sir iames steuart , sheriff of bute , conveener . for the sheriffdom of renfrew . the earl of glencairn , the earl of dundonald , the lord montgomery , the lord cochran , the lord ross , the lord blantyre , the lairds of houstoun elder and younger , the laird of blackhall , the laird of orbistoun , the laird of johnstoun , the laird of bishoptoun younger , the lairds of greenock elder and younger , the laird of hellie , the laird of barrochan , thomas crawfoord of carsburn elder , thomas crawfoord of carsburn younger , the laird of new-wark , the laird of over-pollock , the laird of scotstoun , the laird of jordon-hill younger , iames oswald of fingaltoun , colin campbell of blythswood , the lairds of bargarran elder and younger , robert hall of fullbar , william hamilton of fergusly , iohn hamilton of barr , robert lawder of auld-house , the laird of cathcart younger , the laird of glanderstoun , the laird of dargwell younger , the provost and baillies of renfrew for the time , the bailies of paisley for the time , iohn pollock of falside ; the lord montgomery , conveener . for the sheriffdom of striveling . the duke of hamiltoun , the earl of callender , the lord elphingstoun , mr. william livingston of kilsyth , iames seton of touch , iohn murrays of polmais elder and younger , michael elphingston of quarrel , iames bruce of pow-fowlis , alexander bruce of kinnaird , iames livingston of westquarter , archibald stirling of carden , hugh patersons elder and younger of bannockburn , iohn stirling of craigbonet , iames forsyth of taylcortoun , robert bruce of achenbowie , david moir of leckie , james edmonstoun of broich , william buchannan of drumakeil , george stirling of herbert-shire , mr. adam campbel of gargannock , sir hope of carse , alexander napier of culcreuch , sir charles areskin of alva ; the earl of mar conveener . for the sheriffdom of linlithgow . william duke of hamiltoun ; james earl of arran ; george lord livingstoun ; walter lord torphichen ; general dalzel ; walter dundas of that ilk , thomas drummond of riccartoun ; james cornwal of bonhard elder ; walter cornwal of bonhard younger ; james hamilton of bancrief ; alexander hamilton of grange ; patrick murray of livingston ; alexander cochran of babachlaw ; william sharp of houstoun elder ; thomas sharp of houstoun younger ; james dundass of philipston elder ; james dundass of philipston younger ; sir alexander livingston of craigingal elder ; alexander livingstoun of craigingal younger ; sir john dalrymple of newlistoun ; sir william hope of grantoun ; mr. william dundass of kincavil ; captain dalzell of binns ; james monteith of old-cathie ; john hamilton of dachmont ; mr. john fairholm of craigiehall , mr. iohn hay of woodcockdale ; george drummond of carlourie ; alexander miln of carriden ; robert miln of barntoun ; iohn dundass of manner ; baillie of pollkennet ; the earl of linlithgow , conveener . for the sheriffdom of perth . iames earl of perth lord high chancellor of scotland , iohn marquess of athol lord privy seal , patrick earl of strathmore , iohn earl of broad-albion , david viscount of stormount , andrew lord rollo , george lord kinnaird , patrick master of kinnaird , leiutenant general drummond of cromlix , iames grahame of orcholl , iohn drummond of deanstone , iohn hadden of glenagies , sir iohn drummond of machinnie , iohn drummond of pitkellonie , sir robert murray of abercairny , sir patrick murray of auchtertyre , gavin drummond of belliclon , sir george drummond of milnab , thomas grahame of balgown , thomas hay of balhoussie , iohn stewart younger of gairntully , george drummond of blair , david drummond younger of invermay ▪ thomas moncrief of that ilk , mr. robert ross of invernethy , mr. patrick ker of kilmount , mr. alexander carnagie younger of kinfauns , sir patrick threepland of fingask , patrick hay of kirkland , sir alexander lindsay of evelick , thomas blair of balthaick , mr. iohn blair of balmyle , andrew blair of inchshiral , sir iohn hay of mury , mr. francis montgomery of inchlesly , david kinloch of bardoch , iames ramsey of bamff , iames ogilvie of clunie , william stuart of balid , thomas stuart of stentone , patrick stuart of bellechen , sir iames campbel of lawers , sir iohn murray of drumcairn , sir colin cambpel of aberuchill , colin camphel of monzie , thomas stuart of ladywell , menzies younger of weem , david haliburioun of pitcur , iohn gray of crichie , haliburtoun of fothrens , iames blair of ardblair , iohn mitchel of byres , iames grahame of garvoch , patrick smith of methven , walter stuart of kincarathie , iohn murray of pitculan , mr. iames elphingstoun of comrie , iohn buchannan of arnpryer , alexander stuart of annat , mr. david grahame tutor of gorthie , iohn murray of stravan , william paton of pannols , iohn williamson of barnhill , iohn murray of arthurstoun , mr. patrick morray of dollary , charles stewart of rotmell , alexander robertson of struan , sir william stirling of ardoch , adam drummond of meginch , iohn stuart of fass , kinloch of gourdie , patrick murray of keiler , donald robertson of kilachangie , iames stuart younger of orart , henry murray of lochlan ; the marquess of athol conveener . for the sheriffdom of kincardin . the earl of marischal , the earl of southesk , the earl of midletoun , the viscount of arbuthnet , the lord halcartoun , the lord president of the session , sir charles ramsey of balmain , sir alexander falconer of gl●…nfarquhar , sir david carnagie of pittarow , the laird of laurenstoun , the laird of lyes , the laird of balbegno , the laird of halgreen , the laird of elsick ▪ the laird of pitgarvie , george keith sheriff deput ▪ mr iames falconer of phesdo , iohn dowglas of tilliwhillie , william barcla●… of balmaqueen , william ramsey of woodstoun , iohn barclay of johnstoun ; the earl of marischal conveener . for the sheriffdom of aberdeen . george duke of gordon , iohn earl of errol , george earl marischal , william lord keith , charles earl of mar , iames earl of dumfermling , george earl of panmure , iohn earl of kintore , william lord inverury , george earl of aberdeen , william lord forbes or the master his son , alexander lord salton , or the master of salton , alexander lord pitsligo , or the master his son , the lord frazer , alexander irving of drum , sir alexander seton of pitmedden , sir george nicolson of kemnay , sir john forbes of craigyvar , sir james baird of auchmedden , sir george gordon of edinglassie , john gordon of rothemay , john gordon younger of fechill , alexander gordon tutor of pitlurg , john gordon of knockespack , sir james gordon of lessmoir , the laird of udney younger , robert udney of auchterellon , sir george skeen of fintray , patrick dun of taartie , mr. alexander cuming of b●…ness , mr. alexander forbes of foverane , samuel forbes younger of foverane , john ross of rosehill , alexander frazer of streichen , sir henry guthrie of kinnedward , william mowat of balquholly , james keith of tilligonie , sir william keith of ludwhairn , john forbes of lesly , sir john forbes of monymusk elder , william forbes of monymusk younger , patrick lesly of buchquhain , leith of whitehaugh , alexander cuming of coulter , elphingstoun of glack younger , the laird of dyce younger , mr. james gray of balgony , alexander skein of that ilk , sir thomas burnet of lyes , sir george gordon of geight , sir alexander burnet of craigmyle , robert gordon elder of clunie , robert gordon younger thereof , james urquhart of knockleith , menzies of pitfodels , james innes of drumgask , adam gordon of achainachie , francis ross of achlossin , gordon of kochlarachie , sir robert innes of kinnermonie , john gordon of braichley , mr. thomas gordon of buthley , francis dugit of auchinhoove , forbes younger of echt , david edie of new-wark , mr. thomas gordon of crimomnagate , gordon of badaiscoth , william gray of creichie , robert ross younger of achlossin , william thoires younger of muresk , john gordon of nethermoor , thomas forbes of watertoun , charles gordon of brelack , adam gordon of glenbuckit , gordon of tarpersie , mr. alexander irving of lernie , john gordon of hallhead , mr. robert irving of cults , forbes of tulloch , bisset of lessindrum younger , james gordon of bodome , frazer of streichen , caddel of asswanly , john gordon of cairnborrow , francis gordon younger of craig , sir charles maitland of pittrichie , thomas forbes elder of echt , george morison of pitfure , arthur forbes of brux , george garioch younger of kinstaret , james more of stonywood , mr. james elphingstoun of logidurno , patrick l●…sly of kincraigie , alexander ross of tilliesnaught , william forbes of camphel , mr. james keith of anquhorsk , andrew watson baillie in peterhead , william gordon of newtyle , alexander donaldson of little drumwhindle , mr. richard irving of kirktoun , james gordon of daach , robert burnet of elrick , james forbes of savock , the laird of fetterneir , john logie of boddom , leith of newlands , lesly of little warthell , the laird of craigyvar younger , robert simp●… son of thornstoun , james chalmers of balbirthno , the laird of bal●…lig younger , george paton of grandom , thomas menzies of kinmundie , mr. george richard of aldnigh , henry forbes of boynday , john udney of cultercullen , mr. robert innes of blairtoun ; the earl of errol conveener . for the shire of innerness . the duke of gordon , the earl of morray , the lord doun , the lord lovat , the laird of m cintosh , the laird of m cleod , the laird of grant , the laird of glengerrie , sir donald m cdonald , the laird of kilravock , the laird of clava , hugh frazer of belladrum , alexander frazer of kinnaries , john grant of corrimoney , donald m cintosh of kellochy , william frazer of daltulich , donald m cqueen of corribroch , james frazer of rilik , alexander m cintosh of farr , angus m cintosh of kellochie younger , john m cintosh of dalmegotter , farquhar m cilvray of dunmackglass ▪ m cdonald of benbonula , m cdonald of castletoun ; the lord lovat conveener . for the sheriffdom of nairn . the laird of calder , or in his absence his eldest son , the laird of kilravock , or in his absence his eldest son , alexander rose of clava , duncan forbes of cullodin , alexander brodie of leathine james dunbar of boath , david sutherland of kinsterie ; the laird of calder conveener . for the sheriffdom of cromarty . george viscount of tarbat , john master of tarbat , the chamberlain of cromarty for the time , sir george m ckenzie of rosehaugh his majesties advocat , his chamberlain for the time , alexander urquhart of newhall , and john urquhart fiar thereof his son , george dallas of st. martins , and mr. james dallas younger thereof his son , william urquhart of braelangwell , alexander clunes of dunskeith , andrew frazer of bannance ; the viscount of tarbet conveener . for the sheriffdom of argyle . the earl of perth lord high chancellor , iohn marquess of athol , the earl of broad albion , campbel of lochneil , the laird of mclean , lachlan m clean of brolos , lachlan m clean of torlus●… , m clean of argour , m clean of lochbuy , m calaster of tarbet , m cdonald of largie , the laird of lamont , the laird of m cnaughtain , the laird of calder elder and younger , john m cnaughtain sheriff deput of argyle shire , stuart of apin , or his tutor , archibald lamount of silvercraig , john campbel of carrick , john campbel of duneen , john campbel of glendarnel , archibald m clachlan of craiginterrie , archibald campbel of invera , donald campbel of graignish , alexander campbel of dunstafnish ; the laird of brolos conveener . for the sheriffdom of fife . colin earl of belcarras , iohn lord lindores , david lord new-wark , the lord dunkell , sir david balfour of forret , sir thomas stuart of balcaskie , sir andrew ramsay of abbotshall , sir charles halket of pitfirrin , sir william bruce of kinross , sir henry wardlaw of pittrevie , george durie of pitluskar , alexander spittel of leuchat , robert moutray of roscobie , sir alexander bruce of broomhall , mr. james robertson of newbigging , mr. james alexander of kinglassie , john skeen of halyards younger , mr. alexander malcolm of lochor , david beatoun of balfour , james beason of curden , sir john malcolm of innertick , robert bailie of balmeddieside , george moncreif of reidie , james prestoun of dumbrea , sir john aitoun of that ilk , michael malcolm of neth-hill , james carmichael of bamblea , the master of burley , james crawford of monquhey , scot of pitlochy , john skeen of halyards , sir thomas hope of craighall , john balfour of ferm , sir philip anstruther of ilk , arthur forbes of rires , lindsey of wormounstoun elder , robert smith of giblistoun , sir alexander areskin of cambo , david scot of scots-tarbet , john cuninghame of barns , hamilton of kilbrakmont , andrew bruce of earlshaugh , sir william sharp of scotscraig , robert trotter of lawhill , didinstoun of samfoord , william anstruther fiar of that ilk , mr. james balfour of randerstoun , alexander monipenny of pitmills , forbes younger of rires , david balcanquell of that ilk , david balfour of grange , sir michael balfour of denmiln , stuart of rosyth , sir david arnot of that ilk , james ar●…ot of woodmiln , mr. archibald hope of rankilor ; the earl of belcarras conveener . for the shire of kinross . iohn lord burghlie , sir david arnot of that ilk , robert dowglas of kirkness , sir john malcolm of innerteil , john halyday of tilliboll , mr. alexander crawford of claslochie , james banken of colden , george berill portioner of kinneswood , patrick robertson of smiddiehill , the baillie of kinross for the time , sir william bruce of kinross sheriff principal , or his deputs conveener . for the sheriffdom of forfar . the earl of strathmore , and lord glames , the earl of southesk , and lord carnagie , the earl of airly , and lord ogilvy , the earl of panmure , the earl of northesk , the earl of midleton , the viscount of arbuthnet , the lord lindores , sir david falconer president of the session , sir george m●…kenzie of rosehaugh , his majesties advocat , sir patrick lyon of carss , mr. james maule of balumby , mr. henry maule of kelly , mr. james carnagie of phinheaven , david lindsay of edzell , james carnagy of balnamoon , david haliburtoun of pitcur , collonel john grahame of claverhouse , james scot of logie , david fotheringhame of powrie , sir john wood of bonytoun , william durhame , sometime of ardown , now of grange , james crichtoun of ruthven , gilbert auchinleck of that ilk , john guthrie of that ilk , alexander carnagie sheriff deput of forfar , john ouchterlauny of guynd , mr. john wishart of balgavie , one of the commissars of edinburgh , robert young of auldbar , john ogilvie of pitmeves , david grahame of fintrie , gray of crichie ; the earl of southesk conveener . for the sheriffdom of bamff . the duke of gordon , the earl of airly , the earl of finlater , the lord oliphant , the lord bamff , sir patrick ogilvie of ●…oyn , sir james baird of ach●…eddine , sir george gordon of edinglassie , the laird of troup , george keith of northfield , sir henry guthrie of kinnedward , grant of denlugus , walter stuart of bog , james ogilvie of poldavie , thomas ogilvie in bogtoun , alexander hay of a●…bath , mr. john and alexander abercrombies elder and younger of glassach , george gordon of 〈◊〉 , patrick gordon of claistirum , alexander gordon of glengerrack , john ogilvie of kimpcairn , ogilvie younger of kimpcairn , innes of edinkeith , of kilmach , anderson younger of westertoun , john grant of balindalloch , the laird of park ▪ gordon , provost stuart , baillie fi●…e , baillie john gordon , the laird of grant , patrick grant of elchies , alexander duff of kethmore , john gordon younger of edinglassie , alexander duff of braco , james gordon of camdell , patr●…ck stuart of tanachie , hay of raneies , john gordon of baldornie , francis gordon of achintoul , ogilvie of cantly , john gordon of auchynachie , john gordon of rothemay , john gordon of dallouchy ; the duke of gordon conveener . for the sheriffdom of kircudbright . the viscount of kenmore sir david dunbar of baldoon , sir robert grierson of lagg , sir robert lowrie of maxweltoun , sir godfrey 〈◊〉 of myrtoun , sir robert maxwel of orchartoun , rodger gordon of torquhen , grierson of bargatton , muir of carsincarrie , m●…guffock of rusco , thomas lidderdale of isle , richard murray of brochtoun , andrew herron of kerucht●…e , david dunbar of machnemore , maxwel of newlaw , hugh wallace of inglistoun , john m cgie of balmagie , william stuart of levinstoun , gordons elder and younger of shirmeirs ; the laird of lag conveener . for the sheriffdom of sutherland . john lord strathnaver , the lord rea , james lord duffus , the laird of balnagown , sir robert gordon younger of gordinstoun , sir george monro of culrain , sir john gordon of doll , sir robert gordon of embo , robert gordon of rogart , rodorick m cleod of cambuscurrie , adam gordon of dalpholly , the laird of bighouse , aeneas m cleod of leadmore , robert gordon of carrel , robert gray of sk●…bo , patrick dumbar of sudderay , mr. alexander gordon of rovie , john dumbar of torrobel , hugh monro of eriboll , john monro of inveran , john gray of arboll , mr. john gordon younger of carrel , sheriff deput , m●…key of skeray , william m ●key of borrey , hugh m ckey younger thereof ; the lord strathnaver conveener . for the sheriffdom of caithness . the earl of broad-albion , john lord glenurchy , sir james sinclair of may , sir george sinclair of clyth , john sinclair of murkle , william sinclair of dumbeath , sinclair of brimes , david murray of clerden , mr. james innes of sandside , mr. alexander calder of a●…gingail , robert campbel of breanegle●…s , john sinclair of freswick , laurence calder of lyneger , george sutherland of fo●…s , john sinclair of ulbster , robert sinclair of durren , robert campbel of 〈◊〉 , the sheriff deput of caithness for the time , alexander smart of wester , the baillies of thursso for the time , the earl of broad-albion●… chamberlain in caithness for the time , william dumbar of hemprigs , john sinclar of stircog , james sutherland of ausada●…l , mr. robert dumbar of orkingail , alexander sinclar younger of d●…nbaith , patrick sinclar of southd●…n , sinclar as brabster , sinclar of hemster , james sinclar of lybster , james sinclar of hoy ; the earl of broad-albion , or the sheriff deput of caithness for the time conveener . for the sheriffdom of murray . the duke of gordon , the earl of murray , the earl of dumfermling , the lord duffus , the lairds of innes , the laird of coxtoun , the laird of cubin elder , the laird of muirtoun , the laird of gordinstoun younger , the laird of brodie , sir robert dumbar of grangehil , the laird of grant , the laird of easterelchis , the laird of dunfail elder , the laird of grange , charles mckenzie of earnside , thomas tulloch of tanochie , david steuart of newton , alexander dowglas of spyny , the laird of bellandolloch , john innes of quadrain , walter innes of black-hills , alexander innes of dunkintie , john cuming of logie , john dumbar of boges , william brody of coutfi●…ld , the lord doun conveener . for the sheriffdom of orkney and zetland . the stewart for the time and his deputs , archibald steuart of burrow , william dowglas of egleshay , william craigy of cairsay , iames grahame of grams-hall , william ballenden of stenhouse , henry grahame of breckness , robert steuart of new-wark , george balfour of pharay , steuart of burgh , iames steuart of grahamsay younger , william mudy of melsetter , david craigy of oversandy , the commissar of orkney for the time , iames baikie of tankerness , iohn buchannan of sandyside , george grahame of grahametoun , george trayl of holland , andrew bruce tutor of munis , laurence stuart of bigtoun , laurence sinclar of quandel , george seen of essilmonth , arthur sinclar of house , robert hunter of luna , patrick umphra of sand ; the stewart-principal , or his deput , conveener . for the sheriffdom of clackmannan . the earl of mar , george viscount of tarbat , the laird of ava , iohn ki●…ie of gogour , robert miln of tiliallan , george abercrombie of bruce of kenet , the laird of tillicoutry , the laird of tillibody , mr. francis mastertoun of parkmiln , george stirling , the baillie of alloway for the time , the laird of ava conveener . for the sheriffdom of ross. the earl of seaforth , the viscount of tarbat , the master of tarbat sir george monro of culrain , sir george m ckenzie of rosehauch , the laird of belnagoun , the laird of foulis younger , sir alexander mckenzie of cull , murdoch m ckenzie of fai●…burn , mr. rodorick mckenzie of kinchulidrum , sir rory m ●kenzie of findon , alexander m ckenzie of kilcovy ; kenneth mckenzie of suddy ; sir donald bain of tulloch , alexander mckenzie of belmaduffie ; ●…odorik m cleod of cambiscutrie ; alexander m ckenzie of bellon ; iohn munro of fyres , lachlan m cintosh of kinrara ; alexander m ckenzie of 〈◊〉 ▪ mr. iohn bain of delnies ; colin m ckenzie younger of kincraigie ; hugh munro of new●…ore ; kenneth mckenzie of scatwall ; william ross of invercharron ; alexander m ckenzie of aplecorss , william ross of kindies , mr. george paterson of seafield , george ross of moringy , rory m ckenzie younger of redcastle , donald m ckenzie of meddat , alexander m ckenzie of ardloch , mr. iames m cculoch of baliquith , alexander ross of little tar●…el , matthew robertson of dochcarty , alexander sutherland of inchfuir , murdoch m ckenzie of ardross , kenneth mckenzie of dochmaloag , robert barbar of mulderg , alexander ross of easterf●…rn , ●…ugh monro of teaninik ▪ david fer●…e of tarlogie , iames ross of mount-eye ; the earl of seaforth conveener , or in his absence the ma●…er of tarbat . and ordains the first meeting of the saids commissioners , for the several shires , to be at the head-burghs thereof , upon the day of next , and appoints the major part of the saids commissioners , named for the respective shires , to be a quorum at their first meeting , who are to appoint the next dyet of meeting , and the major part of such as shall meet at the second dyet , or upon advertisement from the conveener , at any other dyet , to be a quorum : with power to the saids conveeners , for the saids shires respectiv●… , to call the commissioners foresaids , at such dyets thereafter as they shall think necessary , for the effectual execution of this act ; and remits to his majesties privy council , to nominat such other persons to be commissioners upon the death of any of the fore-named persons . and for the bu●…ghs , his majesty with advice foresaid , nominats and appoints the magistrats of the same , for the time being , with power to them to choice stent-masters within their respective bounds ; which commissioners of shires and bu●…ghs , are hereby ordained to accept , and discharge their trust , as they shall be answerable ; and that at their acceptation thereof , to take their oaths of alleadgeance , supremacy , declaration and test , and oath de sideli administratione . and his majesty , with advice foresaid , doth hereby impower the said●… commissioners to prescrive and set down such rules and orders within the respective shires and burghs , as may be most effectual for the speedy and easie raising , levying , and bringing in of the said supply ; and ordaining , and doing every other thing that may concern the same : and particularly , with power to them to choice their own collectors , for in-gathering of the said supply , for whom they are to be answerable , and other officers ( except the clerks who are to be named by the clerk of register ; ) and ordains that no clerk shall officiat in the said office , either in shire or burgh , without a new deputation from the said clerk of register : and that the saids commissioners shall at the first meeting , choice their collectors , for in-gathering of the said supply . and the saids commissioners are hereby ordained to receive the saids collectors and clerks accordingly , and to allow them such fees to be payed by the shires and burghs , as they shall think fit ; and which fees are hereby declared to be over and above the foresaid supply , and no part of the same : and which collectors and clerks are to take the oaths appointed by law. and the kings majesty , with advice and consent of his estates , ordains all execution , real and personal , to pass at the instance of the collector general , and the collectors of the respective shires and burghs , against all persons deficient in payment of their proportions as formerly . and also , impowers the commissioners by their officers , to arrest , poynd and distrenzie the goods ; and imprison the persons of the deficients , ay and while they make payment of their just proportions , and necessary expences . and for the more ready and effectual payment , doth also impower the commissioners , and collector-general , to quarter upon deficients , with this express proviso , that every horse-man that shall be upon the place , shall have only free single quarter alloted to him upon the persons deficient , or by quartering in burghs and villages , as the commissioners shall appoint to be satisfied , and payed , by the deficients , and not by these on whom they are quartered , except where they themselves are deficient , and in that case to have fifteen shilling scots a-day , from the time of presenting the order to the collector upon whom they are to quarter , until he give them a list of the deficients , and the sums wherein they are deficient , and thereafter to quarter upon the deficients ; and each dragooner , to have ten shilling scots a-day , and each foot-man to have four shilling scots , or his dyet , as the commissioners shall order ; and the commanders of the party of horse , dragooners , or foot , to have only double-quarter , or pay of an horse-man , dragooner , or foot-man , as he serves . and declares , that in order to the quarters , and matters relating to the ▪ inbringing of this supply , any three of the commissioners shall be a quorum , and who are impowered to proportion upon , and raise from the deficients , the expence and charge of their deficiency , and to see payment made to these on whom the souldiers are quartered , who were not deficient . and further , his majesty , for satisfaction of his good subjects , is graciously pleased to declare , that all officers and souldiers , horse , dragooners and foot , shall make due and punctual payment of their quarters , local , and transient , as the same shall be appointed by the foresaids commissioners , according to the rates of the countrey ; and in case the souldiers do not pay their quarters , that the quarters be stated betwixt the quarter-masters , or other officers , and any two of the commissioners ; and the accompts being stated and sitted , that they be payed , or allowed by the respective collectors , in the first end of what is due by the shire , or burgh , where the saids quarters are owing : providing the saids quarters exceed not two parts of their pay ; and which stated accompts are to be allowed to the respective collectors , by the collector-general , and to be by him retained off , the first end of the troops , or companies pay. and in case the officers remove before their accompts can be stated ; in that case , the collectors of the shires and burghs , are to retain , what after tryal , the saids three commissioners shall find resting , till the accompts be stated in manner foresaid . and his majesty , with advice of his estates , doth declare , that no persons lyable in any part of this supply , shall be holden to produce their discharges , or recepts of the same , after ilk fifth year , commencing from the date of this act , unless where diligence hath been done by denunciation , before elapsing of the said fifth year . xiii . act for taking the test. may . . our soveraign lord , with consent of the estates of parliament , statutes and ordains , that all protestant heritors , liferenters , and others having right to liferents , i●…re mariti , wodsetters , tacksmen , having tacks for longer time than for eighteen years : all masters of ships , and such other burgesses , and inhabitants of burgh●… , whether of royalty , regality , or barrony , as are not heretors , and who shall be appointed by the privy council , shall take the test prescrived by the sixth act of the parliament . before the first day of november , for all such as live be-south the river of tay ; and before the first day of ianuary next , for all be-north tay. and for that end , that all noblemen , and their eldest sons above the age of eighteen years , shall compear before his majesties privy council : all masters of ships , and burgesses aforesaid , shall compear before the provost or bailliffs of the burgh to which they belong , and all others foresaid , before the sheriff of the shire where they live , at some time before the said days ; and there shall swear and subscrive the said test before the judge and clerk of the court , with certification , that such as fail in swearing and subscribing the test as said is , shall be punished in such pecunial sums as the secret council shall determine ; to be disposed of by his majestie , at his royal pleasure . it is alwayes declared , that this act extends not to women . and all clerks are hereby ordained , to send in lists of such as have taken the test , within their respective jurisdictions , to the clerks of his majesties privy council , before the first day of february next to come , under the pain of losing their office , and to be punished otherwayes as the privy council shall determine : but such as have already sworn and subscribed , shall not be obliged to renew it on this occasion . and further , his majesty with consent foresaid , doth ratifie and approve what is already done , in offering the test by his majesties privy council , justice court , or any commissionate from any of them , or by sheriffs , and other magistrats , declaring the same to have been good service to the king and countrey . xiv . act explaining the ninth act of the parliament , concerning prescriptions . may . . our soveraign lord , considering , that at making of the ninth act of the . session of the . parliament of king charles the . concerning prescriptions , in that part of it relating to actions proceeding upon warnings , spulzies , ejections , arreistments , or for ministers stipends , and others foresaid ; the cases that existed before that act were not taken into consideration : therefore , his majesty with consent of his estates of parliament , statutes and ordains , that all such actions proceeding upon any diligence mentioned in that act , already intended either before the said act . or since , shall prescribe within five years after the date of this act , if they be not wakened within that time : and all actions to be raised hereafter upon the foresaids grounds shall prescribe in five years , if they be not wakened within that time . and his majestie wills and declares , the foresaid th act to stand in full force as to the rest of the tenor thereof . xv. act explaining the tenth act of the parliament , anent interruptions . may . . our soveraign lord , considering , that the clause concerning citations used for interruption , mentioned in the . act of the . session of the . parliament of king charles the . hath left the case of such citations before the said act undetermined . his majesty therefore , with consent of his estates of parliament , statutes and ordains , that all citations used for interruptions preceeding that act , shall prescribe within seven years after the date of this act , if they be not renewed within that time . and further statutes and ordains , that in citations for interruption as to rights of lands and wakenings thereof , copies of the citation shall be affixed on the most patent door of the paroch church , and that over and beside what is required by the said act anent these executions . xvi . act anent iustices of peace . may . . our soveraign lord , considering the many advantages which his leiges might have had , if the justices of peace had exerced their function , with that diligence which the law required , and the many evils , especially in ecclesiastick disorders and irregularities , which might have been prevented by their care . for remeid whereof in time to come , his majesty , with the consent of his estates in parliament , doth hereby ratifie , approve , and confirm the . act of the parliament , intituled , act anent the iustices for keeping of the kings peace and constables . the . act of the parliament . and the act of the parliament ●… , intituled , commissions and instructions to the iustices of peace and constables , in the whole heads , articles and clauses contained in them . and further , his majesty gives full power , authority and commission to the saids justices , to put the laws in execution against all who shall be guilty of conventicles , irregular baptisms and marriages , withdrawing from church ordinances , and other such disorders , in so far as they are not capital , conform to the laws made thereanent ; and where the crime is capital , they are to secure the persons , and acquaint the sheriff , or other judge ordinary thereof : and it is declared , that in their proceedings against church irregularities , baptisms , marriages and conventicles ▪ the justices may proceed immediately without waiting any time after the crimes are committed , and their clerk is appointed to send information of their proceedings once in the quarter , to the clerks of the council , as they will be answerable . and for their further encouragement , his majesty allows unto the saids justices of peace , the fynes of all , except heritors , which shall arise from these delinquencies judged by them , to be employed for explicating of their jurisdiction as they shall think fit , and for discovering of what the fynes of heritors shall amount to . the clerks of these courts are hereby appointed to send a subscribed list of them to the clerks of exchequer , in the first week of november yearly , under the pain of deprivation : and his majesty with advice foresaid , allows the justices to nominat their own clerks at their first meeting . attour , his majesty and estates foresaid , give full power , authority and commission , to the lords of his majesties privy council , upon the deceass of any of the justices of peace , to nominat others in their place , and to ●…et down and impose penalties upon such of the justices as shall not keep and observe the dyets prefixed for their several and particular meetings , according to former acts , and an act made in this parliament ; and with power likewise to the saids lords of privy council to enlarge and amplify the power and authority of the saids justices of peace , if they shall find it necessary and expedient : and what the council shall decreet and determine there-an●…nt , find and declare , that the same shall have the force , strength and power of an act of parliament . it is alwayes declared , that sheriffs , stewarts , and baillies of bailliaries , regalities , and barronies , are to remain in the possession and exercise of their former rights , according to the laws of the kingdom : any thing in this act notwithstanding . xvii . act for taking the oath of allegiance . may . . our soveraign lord , with consent of the estates of parliament , doth ratifie , confirm , and approve what hath been done by his majesties privy council , justice court , and these commissionat by them , in banishing , imprisoning , or fyning such as refused to take and swear the oath of allegiance , and to assert the royal prerogatives mentioned in the . act , parliament . of king charles the second . and further ordains all the subjects of this kingdom to take and swear the oath of allegiance , and to assert the said prerogatives , whenever they shall be required , either by the privy council , justice court , or any commissionat by them , and that under the pain of banishment , imprisonment , or such other pains and punishments as shall be determined by the privy council , justice court , or commissioners foresaid , not reaching to life or limb. xviii . act concerning vacant stipends . may . . our soveraign lord , with consent of the estates of parliament , statutes and declares , that the vacant stipends of all churches in time coming , shall be employed on pious uses within the respective paroches by the patron , and more particularly for the building and repairing of bridges , repairing of churches , or entertainment of the poor , as the patron shall determine yearly ; and if he fail therein , he shall lose his right of presentation for the next vice. it is always provided , that the vacant stipends in the diocesses of st. andrews , edinburgh , dunkel , dumblain , and breichen , for five years , shall be employed for repairing of the gair-bridge , crawmond-bridge , and new-liston-bridge , and for the use of the university of st. andrews ; the vacant stipends of the diocesses of glasgow , and galloway , for the same number of years , to the use of the colledge of glasgow ; and these vacant stipends within the diocess of aberdene , and diocesses be-north the same , for the use of the old and new colledges of aberdene , and repairing of the bridges within these diocesses ; excepting the vacancies of the diocess of orknay ( which are hereby ordained to be applyed for reparation of the cathedral church of kirkwall , during the the said five years ; ) and that at the determination and appointment of such persons as shall be nominat by the privy council , for overseeing thereof : which five years aforesaid , shall commence from this present year , and so continue consequutively , during the said space . and his majesty , with consent foresaid , declares , that after expiring of these five years , the vacant stipends do belong to the patrons , to be employed by them for pious uses within the respective paroches aforesaid ; but prejudice always of the maintainance of the ministers manse , during the time of the vacancy , out of the first and readiest of the vacant stipends , conform to former acts of parliament ; and that not only during the said five years , but in all time coming . it is always hereby declared , that this act is not to be extended to the vacancies of these churches whereof the kings majesty is patron , nor to mensal and patrimonial churches belonging to bishops . xix . act ratifying the priviledges of the senators of the colledge of iustice. may . . our soveraign lord , with advice and consent of his estates of parliament , doth ratifie , approve and confirm , all priviledges , liberties , freedoms and immunities , given and granted by his majesty's royal predecessors , to , and in favours of , the ordinary senators of the colledge of justice , and whereof they are in possession ; and all acts of parliament made and conceived in their favours , and speciallie but prejudice of the generality foresaid , doth ratifie the . act of the . session of the . parliament of king charles the second , concerning the immunity of the ordinary lords of session , from all burdens imposed , or to be imposed by the parliament : and declares , that this ratification shall be as sufficient and effectual , as if all these priviledges and immunities , and acts of parliament concerning the same , were specially exprest , and at length insert herein . xx. act for preserving game . may . . our soveraign lord , and estates of parliament , now presently conveened , taking to their consideration , the great decay of game in this his ancient kingdom , especially in the low countries , notwithstanding of all the laws and acts of parliament , and acts of privy council made thereanent by his royal predecessors , which does principally proceed through the not vigorous execution of the saids laws and acts , and not exacting of the fines and penalties therein-contained . therefore , our soveraign lord , with advice and consent of the estates of parliament now presently conveened , does revive , renue , ratifie , and approve all the former laws and acts of parliament made for preserving of the game , and the act of his majesties royal brother ( of blessed memory ) king charles the second , with the advice of his privy council , of the date the . day of iune , years , with the whole laws and acts of parliament therein-narrated , of which act the tenor follows , a proclamation , reviving the laws anent hunting , hawking , fishing : and appointing masters of the game ▪ charles , by the grace of god , king of great-britain , france , and ireland , defender of the faith ; to macers of our privy council , or messengers at arms , our sheriffs in that part , conjunctly and severally , specially constitute , greeting ; we taking to our consideration the great prejudice the kingdom doth sustain in the decay of deer , roes , and wild-fowl , and that there is not only danger of an utter decay of so useful creatures , but the manly exercises of hunting and hawking , is like to be altogether neglected ; and albeit our royal progenitors have made many good laws to prevent and repair this great evil and mischief , and against the destroying of smolts and trouts with creels , and other engines , anent cruives and zairs , steeping of lint in rivers , lochs and burns , where fishes are ; which good laws , although they be yet in force unrepealled , yet by the distraction of the late times , they have been less regarded these many years by gone , to the enorm lesion of our people , and contempt of our authority : have therefore , with advice of our privy council , thought fit to revive all the laws that stand yet unrepealled or innovate , for preserving of doe , roe , hares , and wild-fowl , and especially the act of the parliament of k. iames the sixth , whereby all persons who are not heretors , are prohibited to hunt or hawk , and that neither heretor or other shoot deer or roe in time of snow : as also , the act of the parliament of k. iames the fifth , and act of the parliament of k. iames the sixth , by which , letters are ordained to be direct , charging all keepers of his majesties forrests , to permit no pasturage within the marches of the forrests , but that they seize and escheat them , under the pain of loss of their office ; and that forresters of forrests belonging to privat men , shall apprehend such as travel with guns or dogs in forrests , and carry them to the nearest sheriff , stewarts of stewartries , baillies of bailliaries and regalities , or justices of peace , to be secured , to answer as accords of the law ; and that all such of the leidges who shall be required to concur to apprehend such persons , give ready obedience , as is ordained by the forrest laws , cap. . and cap. . and these who conceal them , be fined as art and part of the said fault . and further , we do hereby forbid all shooting of hares , or herron at any time , under the pains contained in the acts of parliament made thereanent . item , that all persons forbear to slay any muir-fowl , heath-fowl , partridge , quail , duck , or mallard , tale or atale , or tormichan , from and after the first day of lent , to the first of iuly yearly , according to the . act , parliament . k. iames . excepting water-fowl with hawks in dredging-time . item , the act , parl. . k. iames . forbidding the killing of muir-fowl-pouts before the first of iuly , heath-pouts before the first of august , or partridge or quail before the first of september yearly . item , we revive the act , parl. . k. iames . forbidding muirburn after the last of march , and the masters to be lyable for all upon their land. and further , we considering that setting-dogs , and other engines for killing of fowl , is a great cause of the scarcity of game ; we do hereby prohibite and discharge all persons , to have or use setting-dogs , unless he be an heretor of one thousand pound of valued rent , and have express license of the masters of our game within their several bounds , under the pain of five hundred merks . toties quoties , in case of sailzie . and we do hereby discharge all common fowlers , and shooters of fowl , or any persons , except they be domestick-servants to noblemen or gentlemen , who are heretors of one thousand pounds scots of valued rent , to have or make use of setting-dogs , or fowling-pieces , under the pain of escheat of such dogs or guns , and imprisonment of their persons for the space of six weeks , toties quoties . item , we revive the act , parl. . k. iames . whereby shooting , hunting , or hawking within six miles of our palace are prohibited , under the pains therein contained , without express license of the masters of the game : and seing the fowls , hares and roes are already so far destroyed , that there is ground to fear a total decay thereof , we therefore with advice foresaid , do revive the act , parl. . k. iames . forbidding all selling or buying of deer , roe , hares , muir-fowl , tormichan , heath-fowls , partridge , or quail , for the space of seven years next ensuing the day of iune instant year , under the pains contained in the said act ; and for the better discovery of the contraveeners , we do hereby give warrand to the masters of our game , their deputs , or others impowered by either of them in their respective bounds , to make search for any of the saids deer , roe , hates , muir-fowl , tormichan , heath-fowl , partridge , or quail so killed in any suspect place , within or without burgh , as well the buyers , as sellers in mercat , or outwith the samine , or fowlers , and to seize , search , secure and confiscate the same for their own use . item , we do hereby revive the act , parl. . q. mary , forbidding hunting on other mens ground without leave of the owner . and whereas by the act , parl. . k. iames . cruives and zairs set on fresh water without express infeftments of salmond-fishing , are ordained to be destroyed and put away for ever , and that where cruives are allowed by infeftments , that ilk heck be three inch wide , which is ratified by the act , parl. . k. iames . and by the act , parl. . k. iames . it is statute that no man set vessels , creels , weirs , nets , or any other engine to hinder smolts from going to the sea , and that coups , masses , nets . prins set on waters that has course to the sea be destroyed , and who holds them up , to be lyable as destroyers of red fishes . item , that all millers that slays smolts or trouts with creels , or any other engine ; or any who dams or laves , shall be punishable as slayers of red-fish , conform to the act , parl. . k. iames . and where the transgressours has no means , they are appointed to be put in prison , irons , or stocks , for the space of one moneth upon their own expenses ; and if they have it not of their own , to be fed on bread and water , conform to the act , parl. . k. iames . and by the act , parl. . k. iames . the steeping of lint in rivers , lochs , or burns where fishes are , is discharged , and that under the pain of fourty shilling scots , toties quoties , and confiscation of the lint : which good and ancient laws yet standing unrepealled or innovate , we have thought fit hereby to revive and ordain to be put in execution ; ordaining hereby the masters of our game to require all heretors and others , to throw down all cruives and zaires set on fresh waters , without express infestment of salmond-fishing , betwixt and the first day of iuly next , under the pain of an hundred pounds scots , to be uplifted off these who refuse , and the sheriffs and their deputs to give speedy justice therefore , when desired by the masters of the game , or their deputs . and we appoint the several sheriffs and their deputs , stewarts of stewartries , bailiffs of regalities and their deputs , and magistrats of the next adjacent burrows to concur with the masters of game , for throwing down of the saids cruives , creels , nets , and engines , when they shall be required ; and if the saids judges be found negligent , that the foresaid penalty be uplifted off themselves , according to the act , parl. . of q. mary . and to the effect the saids laws may receive the more vigorous execution , we do hereby commissionate the persons following to be masters of game , within the respective bounds after-specified , viz. our chancellor for the time being , for the three lothians , and town of edinburgh , and shire of bathgate ; the earl of mar , for stirling shire ; sir george mackenzie of tarbet , lord clerk register , for clakmannan shire ; the earl of belcarras , for fife ; and sir william bruce of balcaskie , for kinross ; the marquess of athol , lord privy seal , for perth shire ; the earl of perth , for the stewartries of strathern , monteith , and balquhidder ; the earl of southesk , for forfar shire ; the earl of marischal , for the shire of kincardin , and for all below mormouth hill , and the water of eugie in bamff shir●… ; and the earl of airly , for all the rest of bamff shire ; the earl of dumfermling , for all betwixt crathus , bannachie , and the sea in aberdeen shire ; the earl of kintore , in all above that in the said shire ; the earl of murray , for all from spey to ness , high and low , comprehending elgin , nairn , and innerness shire , to lochness ; the earl of seaforth , from ness to conan , high an●… low , comprehending cromarty shire ; sir george mackenzie of tarbet , lord clerk register , from conan to portnaculter , and okel-water , and on the west from lochew to cuiliscuack ; the lord duffus , for sutherland , excepting assint , which is in the last division ; the earl of caithness , for caithness ; the stewart of orkney , for orkney ; for argile and bute , the sheriff for the time being ; the earl of home , for the shire of berwick ; the sheriff o●… roxburgh , for the shire of teviotdale ; the lord duke of hamilton , for lanerk shire ; the earl of kilmarnock , for the shire of air ; the lord of yester , for peebles shire ; the earl of glencairn , for the shire of renfrew ; the marquess of montross , for the shire of dumbartoun ; the laird of burghtoun , for the shire of wigtoun ; the earl of galloway , for the stewartry of kirkcudbright ; and the marquess of queensberry , lord high thesaurer , for the shire of dumfreis . hereby impowering and warranting them to put the standing laws in execution , in so far as concerns the preserving of forrests , wild-fowl , and fishing , especially the laws and ordinances above-specified . and we require all our judges ordinar , in their respective bounds and jurisdictions , to give speedy justice thereupon , in favours of the saids masters of our game , or their deputs , when they delate or pursue delinquents before them , as they will be answerable upon their duties and offices . and all sheriffs , mayors , other officers , and fiscals of their respective courts , are ordained to cite delinquents before these courts , as they shall be informed thereof , and witnesses to prove the samine , and to prosecute them until final sentence be pronounced against them , and thereafter see these sentences put to due and lawful execution , the expenses whereof is to be payed out of the first and readiest of the fines of the delinquents so uplifted , at the sight of the respective masters of game , under the pain of deprivation , and further censure in case of neglect , as our council shall find cause . and for further enabling our saids masters of game , we impower them to appoint deputs , one or moe , for whom they are to be answerable , as well for their diligence as fidelity . and that their saids deputs themselves , no●… none by their connivance , take upon them to contraveen this proclamation , and destroy the game ; and to encourage them in so good service to us , and our people , we hereby allow our parts of all fines and unlaws due to us by our laws , for the crimes relating to forrests , game , and fishing , in favours of the saids masters of our game , within their respective bounds , and during the time we shall think fit to imploy them in the said service ; withall certifying them , that if they be remiss or negligent in their duty , they are to be discharged of their offices , and fined by our privy council , as they shall find cause . and we declare our said commission is to continue and endure for the space of seven years after the date hereof , and until we , or our privy council think fit to recall the same . and that we have recalled our former proclamation anent game of the fourth of march , . our will is herefore , and we charge you strictly , and command , that incontinent , these our letters seen , ye pass to the mercat-cross of edinburgh , and other mercat-crosses of the head-burghs of the several shires of this kingdom , and other places needful , and there by open proclamation , make publication of the premisses , that none pretend ignorance . given under our signet at edinburgh , the . day of june , years . and of our reign the thirtieth and fourth year . and does strictly require and command all our masters of game , sheriffs , and other magistrats , and their deputs , and all heretors , and liferenters , and proper wodsetters , within their respective bounds , to be diligent and vigilant in time coming , in putting the saids acts and laws therein contained to full and due execution . and does hereby require all our judges , before whom our masters of game , or others , shall pursue the contraveeners , to give them full and speedy justice , as they shall be answerable . and for the preservation and increase of partridge , muir-fowl , heath-fowl , and quails ( which are so much decayed of late . ) our soveraign lord , with consent foresaid , does statute and ordain , that no person or persons whatsoever shall make use of setting-dogs with nets , for taking or killing of partridges , muir-fowls , heath-fowls , or quails , within any part of this our ancient kingdom , for the space of seven years , immediatly after the publication hereof , under the penalty of fourty merks scots for each fowl that shall be so killed , or taken , to be payed by the killers or takers to our masters of game , and their deputs , or others who pursues the same : and whoever shall shoot hares , shall pay fourty merks scots for each hare that he shall shoot . xxi . act against stealing of dogs and hawks . may . . our soveraign lord , and estates of this present parliament , taking to their consideration , the great prejudice and inconveniencies that has , and does dayly fall out through the stealing and keeping of hawks and dogs that has strayed and got away from their rightful owners , by persons that has no right or interest to do the same , does statute and ordain , that whosever hereafter shall steal a hawk out of the nest , or air , or take a collar from a dogs neck , or vervel from a hawk with the masters name or style thereon , shall be pined in the sum of five hundred merks scots ; and whosoever shall give away , or sell any hawk , or dog , which is not his own , shall be fined in the sum of one hundred pound scots ; as also , that whosoever does get a dog straying , having the collar above-named , or hawk with bells or vervels that has got away from her or his master , and does take the said hawk or dog into his possession , shall be obliged within fourty eight hours after the said dog or hawk shall be so taken by him , to send and book the same in the sheriff-clerk his books , ( where the waith-goods are booked , ) the dog by the kind , collar , and marks , and the hawk by the kind , and vervels , if it have any , for which there shall be payed to the sheriff-clerk six shillings eight pennies scots , which the owner of the hawk or dog shall be obliged to repay , together with two shillings scots for each mile that the bearer shall be sent to the sheriff-clerk , or booking of the said dog or hawk ; and in case the dog or hawk shall not be claimed by letter , or otherways , by the just owner , within six moneths after it shall be so booked in the sheriff-clerk of the shire , where the dog or hawk shall be taken , his books ; then and in that case , the dog or hawk shall belong and appertain in property to the possessor , and the owners shall not be heard thereafter to claim the same ; and if the taker and keeper of any hawk or dog , shall failzie to cause book the same in manner above-specified , he shall pay the sum of fourty pounds scots of penalty to the owners , if they shall pursue the same before any judge competent . xxii . act concerning tailzies . may . . our soveraign lord , with advice and consent of his estates of parliament , statutes and declares , that it shall be lawful to his majesties subjects to tailzie their lands and estates , and to substitute heirs in their tailzies , with such provisions and conditions as they shall think fit , and to affect the saids tailzies with irritant and resolutive clauses , whereby it shall not be lawful to the heirs of tailzie , to sell , annailzie , or dispone the saids lands , or any part thereof , or contract debt , or do any other deed whereby the samine may be apprised , adjudged , or evicted from the others substitute in the tailzie , or the succession frustrate or interrupted , declaring all such deeds to be in themselves null and void ; and that the next heir of tailzie may immediatly upon contravention , pursue declarators thereof , and serve himself heir to him who died last infeft in the fee , and did not contraveen , without necessity any ways to represent the contraveener ; it is always declared , that such tailzies shall only be allowed in which the foresaid irritant and resolutive clausesare insert in the procuratories of resignation , charters , precepts , and instruments of seasing : and the original tailzie once produced before the lords of session judicially , who are hereby ordained to interpose their authority thereto , and that a record be made in a particular register-book , to be kept for that effect , wherein shall be recorded the names of the maker of the tailzie , & of the heirs of tailzie , and the general designations of the lordships and barronies , and the provisions and conditions contained in the tailzie , with the foresaid irritant and resolutive clauses subjoyned thereto , to remain in the said register ad perpetuam rei memoriam , and for which record , there shall be payed to the clerk of register and his deputs , the same dews as is payed for the registration of seasings , and which provisions and irritant clauses shall be repeated in all the subsequent conveyances of the said tailzied estate to any of the heirs of tailzie ; and being so insert , his majesty , with advice and consent foresaid , declares the samine to be real and effectual , not only against the contraveeners and their heirs , but also against their creditors , comprysers , adjudgers , and other singular successors whatsoever , whether by legal or conventional titles . it is always hereby declared , that if the saids provisions and irritant clauses shall not be repeated in the rights and conveyances , whereby any of the heirs of tailzie shall brook or enjoy the tailzied estate , the said ommission shall import a contravention of the irritant and resolutive clauses against the person and his heirs who shall omit to insert the same , whereby the said estate shall ipso facto fall , accresce , and be devolved to the next heir of tailzie , but shall not militat against creditors , and other singular successors who shall happen to have contracted bona fide with the person who stood infeft in the said estate , without the saids irritant and resolutive clauses in the body of his right . and it is further declared , that nothing in this act shall prejudge his majesty , as to confiscations or other fines , as the punishment of crimes , or his majesty or any other lawful superiour of the casualities of superiority which may arise to them out of the tailzied estate , but which fines and casualities shall import no contravention of the irritant clause . xxiii . act ratifying the opinion of the lords of session , anent these who refuse to depone anent the late treasonable proclamation , . june . . our soveraign lord , with advice and consent of the estates of parliament , ratifie , approve and confirm an opinion given by the lords of council and session , upon the day of november . whereby they find , that if any of his majesties subjects , being questioned by his majesties judges , or commissioners , if they owne a late traiterous proclamation , in so far as it declares a war against his sacred majesty , and asserts , that it is lawful to kill all such as serve his majesty , or who shall not dissown the same ; are thereby guilty of high treason , and are art and part of the said treasonable declaration : and also ratifies , approves and confirms all processes of treason , led , or to be led thereupon in time coming . xxiv . act ordaining that tennents be obliged by their tacks to live regularly ▪ june . . our soveraign lord , with advice and consent of the estates conveened in parliament , do statute and ordain , that all masters , whether heretors , liferenters , proper wodsetters , tutors , tacks-men , donators of wards , or liferents , shall in all time-coming , insert in all tacks to be set by them to their tennents , as well in burgh as landward , an express clause , whereby the tennent shall oblige himself , that he , his family , cottars and servants , shall live peaceably and regularly , free of all fanatical disorders , under the pain of the tennent , cottar , or servant contraveening , their losing the half of their moveables respective , each for their own fault ; and where there is no written tacks , that all the tennents shall enact themselves in the masters court book , or in the town court books within burgh , or give bond , to that effect , and in the tenor foresaid . which enrolment of court is to be subscribed by the tennent , or if he cannot write , by the clerk of the court in his name ; and if the master , or any of the persons foresaid shall fail herein , they shall pay an years rent of the lands , set otherwise ; a third part whereof to the discoverer , if he prove the same , and two parts to the kings majesty : and all masters and others foresaids , who have lands already set in tack , without the saids clauses , are hereby ordained to renew the same , and insert the said clauses in them , betwixt and whitsonday one thoùsand six hundred eighty and six , or to take an obligement apart from the tennent , bearing these clauses , otherwise to remove summarly ; such tennents as refuse to accept them on the saids conditions , notwithstanding of any former tacks , which in this case are hereby declared void and null . and in case the tennents will not immediatly remove , that the master may commit them to prison . and it is hereby statute and ordained , that if any tennent shall refuse to renew his tack , enact himself , or give bond in the terms foresaid , he shall be lyable to pay to his master an years rent of the lands set to him . and this but prejudice or derogation to all former acts of parliament , whereby masters are obliged for their tennents , in the manner therein-specified . xxv . act ratifying two acts of parliament and a proclamation of council , anent apprehending of rebels . june . . our soveraign lord , with advice and consent of his estates of parliament , ratifies and approves the act par. of king iames the sixth , entituled , act anent the duty of sheriffs and iudges ordinary , their deputs and clerks : as also , the act of that same parliament , entituled , act for punishing the resetters of traitors and rebels , in the whole heads , clauses and contents of them ; together with a proclamation by his majesties privy council , dated the eight of iuly . entituled , anent the discovery of persons in arms , and apprehending of rebels , in the whole contents thereof : of which proclamation the tenor follows . a proclamation , anent the discovery of persons in arms , and apprehending rebells and fugitives . charles , by the grace of god , king of great-britain , france and ireland , defender of the faith , to our lyon king at arms , and his brethren heraulds , macers of our privy council , pursevants , and messengers at arms , our sheriffs in that part conjunctly and severally , specially constitute greeting : albeit by the blessing of almighty god , upon our royal endeavours , the many attempts of his and our enemies ( made most impiously under pretence of religion and zeal , against the laws of god , of nature , of nations , and of this our kingdom , designing the overthrow of religion , government , liberty and property ) have been frequently disappointed and defeated , and their malice turned upon their own heads , and that the many acts , both of mercy and justice , exerc'd by us , conform to the laws of god and the kingdom ; and the great prudence , vigilance , moderation and justice , of our dearest and only brother , during his abode in , and government under us , of this our ancient kingdom , have had such happy success , as to bring our good subjects to further abhorrence of fanaticks and their impieties , and most of these who were misled by the lying spirit of some of their pretended ministers , are shrunk from these wayes , whereof they are justly ashamed , so that our people are brought nearer to that dutiful and peaceable deportment which becomes christians and subjects : yet some are so indefatigable in malice , as to continue and stir up others to disturb that peace and tranquillity , which our people may enjoy under our reign : in so much as of late , some traitors , runnagates , and fugitives , have convocat towards the number of eighty , with forbidden weapons , and in unlawful manner , near to tala-lin , in the shire of peebles ; and the people in that countrey , have been so defective in the duties of loyal subjects , or good countrey-men , as to neglect giving timeous notice of such meetings or actings , either to our council , the sheriff of the shire , or the commanders of our forces , who were nearest to them ; and this neglect of theirs being not only a breach of duty in them , but of very bad example , and dangerous consequence , if practised by others on such emergments ; we therefore by our royal authority ▪ and also in conformity to the whole course of our laws ▪ particularly to the act of the parliament king iames the . and act , parliament king iames . do hereby strictly require and command , all the subjects and inhabitants within this our kingdom , whether in burgh or land , upon knowledge or information , that any number of men do convocat unlawfully in arms , or appear in company in any place , or where any one or two of such , as are declared traitors or fugitives from our laws , on treasonable accounts , shall repair , that they shall with all diligence give intimation therof to our chancellour , and such others of our secret council , as shall be at edinburgh : as also , without del●…y , that they give information to any commander of our forces , who shall be nearest to the place where the said unlawful convocation , or such traitors and fugitives are , and to the sheriff of the shire , stewart of the stewartry , bailie of the regality , or magistrates of burrows , where the said meeting , or persons appear , or are informed to be , and that within the space of one hour at most , for every three miles distance they are at the time from edinburgh , or from the nearest commander of the forces , sheriffs , and other magistrates foresaid . and farder , we do hereby require and command our saids sheriffs , bailies , and magistrates , upon any such information given to them , that they call together competent numbers of our good subjects , and with these , do exact diligence , at the utmost of their power , to search , seek , and apprehend these who are so met , and to present them to justice , and to follow them until they be apprehended , or expelled out of their jurisdiction , and on their flight , they are immediatly to acquaint the magistrates of the next shire , whither they are fled ; who are hereby required to do the like diligence ; and so from shire to shire , until they be apprehended , or expelled forth of this realm : and in case any hurt or skaith fall out in the pursuit , or in apprehending of these so unlawfully convocat , the actors thereof are to be free , and unpunished in any manner of way ; with certification , that these whoever fails in their said respective duties , whether it be the magistrats , in not pursuance , or our other subjects , in not giving timeous information within the space foresaid , or in not rising with , and assisting the magistrats in their forementioned duties , they shall be held and repute as disaffected to our government and service , and as art and part , and connivers with them in their said unlawful designs and convocations , and undergo the punishment due to these who were of the said unlawful convocation , by the laws of this our kingdom . and we hereby of new , intimat to all our subjects , that whoever shall intercommune with , reset , supply , shelter , or give any comfort to any declared traitors or fugitives ; or who shall conceal , reset , or shelter any who do convocat in manner foresaid ; that such resetters or assisters , shall be proceeded against , as if they were guilty of the crimes whereof these traitors and fugitives are guilty , according to the just rigor of our laws . our will is herefore , and we charge you strictly and command , that incontinent , these our letters seen , ye pass to the mercat cross of edinburgh , and the whole mercat crosses of the head burghs , and whole paroch kirks of this kingdom , and other places needful , and there , in our name and authority , by open proclamation , make publication of our royal will and pleasure in the premisses , that none may pretend ignorance , but give chearful and punctual obedience thereto ; the which to do , we commit to you conjunctly and severally , our full power , by these our letters , delivering them by you duely execute , and indorsed again to the bearer . given under our signet at edinburgh , the eighth day of july , one thousand six hundred eighty two years , and of our reign , the thirtieth and fourth year . and declares the same shall have the effect of an act of parliament . and ordains the saids acts and proclamation to be put vigorously in execution . xxvi . act concerning adjudications for fines . june . . our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that all adjudications and apprysings , led , or to be led for fines imposed , or to be imposed by his majesties privy council , commissioners of justiciary , or any other his majesties judges , for the crimes of reset , intercommuning , concealing of treason , conventicles , irregular-baptisms , marriages , or other church disorders , or irregularities , where the adjudication or comprysing does not exceed , or shall be restricted to lands , not exceeding the value of the fines imposed , the legal shall expire within year and day after deducing of the adjudication or comprysing . and it is hereby declar'd , that in case of competition and concourse of several diligences , within year and day , betwixt the king or his donator , and a creditor , which by the law comes in pari passu : the king or his donator shall be preferr'd , and have his election of his proportion of the lands , of which the legal shall expire within year and day , in manner foresaid ; that proportion not exceeding the sum contained in the adjudication . and it is hereby declared , that this act is only to be extended to adjudications for fines already imposed , or to be imposed betwixt and the next session of parliament . xxvii . act for securing sea-passengers . june . . our soveraign lord , with advice and consent of his estates of parliament , statutes and ordains , that all masters of ships who bring home any passenger who is not a sea-man and of his ship-company , shall at his arrival , and before he suffer the saids passengers to depart , bring them before the nearest magistrat , that the saids passengers may give account of themselves , so as to free them of all suspition to the said judge , who is to secure them until they give such an account : and also , forbids an prohibites any master of any ship , to export any passenger who is not a sea-man , and of their ship-company , until he bring the said passenger before the next magistrat , to whom they shall give account of themselves in manner foresaid , and the master of the ship shall have a testificate of his so doing , under the said magistrats hand and seal before whom he compears , ( for which he shall pay only half a merk , ) under the pain of such fines , and personal punishment as his majesties privy council shall think fit to inflict on the master of any ship , who contraveens this law. and this to continue during his majesties pleasure . xxviii . act and commission for plantation of kirks , and valuation of teinds . june . . forasmuch , as his majesties father of ever blessed memory , out of his royal care and zeal for the reformed religion within this kingdom , and the maintainance and provision of the ministry and churches thereof , and the peace of the kingdom , and for preventing and settling all differences that did or might arise betwixt titulars , and others having right to teinds , and heretors , concerning the leading and drawing of their teinds ; and immediatly after his attaining and succeeding to the crown , gave furth and emitted his royal declaration anent the premisses , and the other particulars therein-specified ▪ and in pursuance of the ends foresaids , divers laws and acts of parliament were made in the year of our lord , his said majesty being then present in his royal person ; and since , divers acts of parliament , and commissions have been made , given , and renewed to that purpose , and particularly by the act of the d session of the d parliament of k. charles the second ▪ his majesties umqu●…ile royal brother , of ever blessed memory ▪ and his majesty being resolved , and desirous to prosecute so good a work , for the universal good of his subjects , and especially for the encouragement of the ministers of the gospel . therefore , his majesty , with advice and consent of his estates of parliament , gives full power and commission to his majesties officers of estate for the time being , and to the arch-bishop of st. andrews , the arch-bishop of glasgow , the bishop of edinburgh , the bishop of dunkell , the bishop of galloway , the bishop of isles , the bishop of breichen , the bishop of dumblane , the bishop of aberdeen ; the duke of hamiltoun , the marquess of dowglas ▪ the earl of ●…ol , the earl of marischal , the earl of mar , the earl of strathmore , the earl of linlithgow , the earl of southesk , the earl of tweddale , the earl of belcarras ; the lord president of the session ▪ the lord pitm●…dden , the lord forr●… , the lord r●…dfoord , the lord boyne , the lord d●…irn , the lord balcaskie , sir william bruce of kinross , sir george lockhart of carnwath , sir archibald cockburn younger of lantoun , hugh wallace of inglistoun ; sir george drummond of miln-nab ▪ charles murray of hadden , alexander mill of carri●… , sir alexander bruce of broomhall , sir patrick murray , iames iohnstoun provost of glasgow , mr. robers innes writer to the signet , sir george skeen provost of 〈◊〉 ▪ iames fl●…her burgess of aberdeen , iohn dempster of 〈◊〉 ▪ or any eleven of them , to be a quorum ▪ whereof two of every estate , to m●…et and conveen at edinburgh , the day of year●… , and such other place or places , times or die●…s , as they shall appoint , to value and cause be valued whatsoever teinds , great or small , parsonage , or vicarage within this kingdom , which are yet unvalued ▪ declaring , that where the vicarage of any paroch is a several benefice and title from the personage ▪ the same shall be severally valued , to the effect the titulars or ministers serving the ●…re , having right to the said vicarage , be not frustrated of the true worth thereof , with power to the saids commissioners ▪ or quorum foresaid , to appoint committees , or sub ▪ committees of their own number , and to grant sub commissions , and to receive reports from them , an●… to approve or disapprove the same as they shall find just , and to rectifie whatsoever valuations led , or to be led to the enorm prejudice of the titulars , or the hurt and detriment of the church , and prejudice of the ministers maintainance and provisions . providing always , likeas it is hereby expresly provided and declared , that where valuations are lawfully led against all persons having interest , and allowed by former commissions , the same shall not be drawn in question , nor rectified upon pretence of enorm lesion at the instance of the minister ( not being titular , ) or at the instance of his majesties advocat , in respect of his majesties annuity , except it can be proven that collusion was used betwixt the titulars and heretors , or betwixt the procurator-fiscal and the heretors and titulars , which collusion is declared to be , when the valuations are led with the diminution of the third part of the just rent , which diminution shall be proven by the parties oath ; and with power to the saids commissioners or quorum foresaid , where ministers are not already sufficiently provided , or have not localities already assigned to them for their stipends out of the teinds , within the paroch , where they serve the cure , in so far as the same will amount to , according to the quantities , proportions , and rules contained in the act of the parliament , to modifie , settle , and appoint constant local stipends to each minister , out of the teinds of the paroch where they serve the cure ; with power also to the saids commissioners , to grant recompence by prorogation of tacks to parties for all augmentations of stipends which are granted since the year , or shall be granted , and that effeiring to the augmentations already granted , or to be granted , as the saids commissioners shall think sit . and sicklike , to disjoyn too large and spacious paroches , to cause erect and build new churches , to annex and dismember churches as they shall think convenient , and to take order that every heretor and liferenter shall have the leading and buying of their own teinds , if they be willing , according to the rules prescribed by the act and commission granted by his majesty , with consent of his estates of parliament in anno , and the acts of parliament therein-mentioned , with power to determine all questions concerning the prices of teinds betwixt titulars and others having right thereto , and the heretors , and to appoint such securities in favours of titulars and others having right to teinds for their prices , to be granted to the heretors and others lyable in payment of valued duties , or buyers of the saids teinds , and in favours of the ministers as to their maintainance , as the saids commissioners shall think fitting , according to the rules set down in the said act ; and each heretor whose teinds belongs to titulars of erection , to have power and liberty to buy the teinds of his own lands , whether valued or not , within the space of three years after the date of this act : with this declaration always , that in case the impediment during the time foresaid flow from the titular by reason of his minority , or other inability , in that case , the heretor who offered to buy his own teinds within the space foresaid , shall have place so soon as the impediment is removed to buy his teinds , notwithstanding of the expiring of the years and space after-exprest ; and it is declared , that if the heretor be minor , and his tutor neglect the buying of his teinds within the foresaid space , the minor shall have action for two years after his minority , to compell the titular to sell his saids teinds . and generally , with power to the saids commissioners to decide , and determine in all other points which may concern the drawing or leading of teinds , the selling or buying of the same , or payment of the rates thereof , contained in the former acts of parliament , or set down in the general determination given out by his majesties royal father , of blessed memory . and if any person or persons shall find themselves grieved , and complain of the injustice or exorbitancy of any decreets or sentences given in any of the commissions during the time of the late troubles , with power to the saids commissioners to take the same to their consideration , and alter , annul , or allow the saids decreets and sentences , as they shall find just . and it is always provided and declared , that the arch-bishops and bishops , and other beneficed persons , being ministers , and their successors , shall not be prejudged of the rents whereof their predecessors were in actual and real possession , and which by the laws of the kingdom were due to them in anno , or whereof they are presently in possession ; and that they shall be no further bound , but according to the provisions and conditions exprest in the submissions made by the bishops to his majesties royal father , of blessed memory , of the date the day of years , and registrat in the books of commission for surrenders and teinds , upon the fifteenth day of iuly . and whereas it may fall out , that some of the saids commissioners may be unable to attend the service , through death , sickness , or other known impediment , therefore , his majesty declares , that he shall be careful to fill their places with other persons qualified , whose oaths ( for faithful discharging of the same ) shall be taken by the lord chancellor , or in his absence , by the lord president of the commission for the time . and ordains this present commission to endure ay and while the same be discharged by his majesty , and the acts , decreets , and sentences thereof , to have the force , strength , and effect of a decreet or sentence of parliament , and the lords of session to grant letters of horning , poynding , and other necessars to be direct upon the saids decreets and sentences in manner contained in the foresaids commissions . and his majesty , with consent foresaid , hereby discharges all former commissions , declaring the same to be expired . xxix . act concerning citations before circuit courts . june . . our soveraign lord , with advice and consent of the estates of parliament , do hereby ratifie and approve the practice of the circuit courts , in citing persons even for treason , upon porteous rolls by messengers , or sheriff-officers , without imploying heraulds or pursevants , which because of the circumstances of the time , place and number of the pannals cannot be done in circuit courts : and declare that for the future , it shall be lawful to cite before circuit courts after that manner . it is alwayes hereby provided , that in cases of treason , the messenger or sheriff-officer , and witnesses to the citation shall be sworn upon the verity thereof . xxx . act approving the narrative of the plot. june . . our soveraign lord , with advice and consent of his estates of parliament , having read , seen and considered a narrative of the late horrid inhumane conspiracy by that execrable traitor , archibald campbel , sometime earl of ●…rgile , and others , and the papers , ciphers , and instructions whereon the same is founded ; they do find and declare , that there has been a pernicious and treacherous conspiracy , carried on by him and others ; and they therefore approve the discovery of the said plot , by the extraordinary pains , exactness and industry of the lords of the secret committee ; together with the narrative drawn and printed by authority of the lords of his majesties privy council , as good and acceptable service done by them for the security of his sacred majesty , and this his ancient kingdom . xxxi . act for security of the officers of state and others : june . . our soveraign lord , considering the great and acceptable services done to his majesty by the secret committee , his majesties privy council , and his other judges and officers ; and being desireous to secure them for their actings and omissions in his majesties service , in most ample form ; doth therefore , with advice and consent of his estates of parliament , indemnifie and secure all and every one of his majesties present officers of state , the members of the secret committee , lords of the privy council , and all his majesties judges , both civil and criminal , the officers of the army , and all others who have acted by his majesties commissions , or by commission from his privy council , against all pursuits or complaints that can be raised against them any manner of way , for their actings in his majesties service : as likewise for their omissions , and wherein they have fallen short of their duty , and that as fully as if every particular crime or misdemeanour were particularly specified in a remission under his majesties great seal , or contained in an act of indemnity ; requiring all his majesties judges to interpret this indemnity in the most ample and favourable sense , as they will be answerable . xxxii . act concerning the militia . june . . our soveraign lord , with consent of his estates of parliament , considering that it may contribute for the ease of the people , to have the ordinary rendezvouzes of militia discharged , unless extraordinary occasions should otherwise require : therefore they discharge all rendezvouzes of the militia in time coming , during his majesties royal pleasure ; and until his pleasure be so declared , that no leaders , nor assisters shall be lyable for furnishing , and contributing to buy or maintain horse or foot on that account ; and they recommend to the secret council to take such courses for disposing of the militia arms in the respective shires , as shall seem most expedient for his majesties service ; but prejudice alwayes of the continuance of the former , and present constitution of the militia , during the present rebellion . xxxiii . act for security of the records . june . . our soveraign lord , and estates of parliament , considering of how great importance it is to the leidges , that the records and registers be securely keeped ; do therefore ordain , that all clerks within the kingdom , who keep such registers as are , or have been in use to be delivered in to the clerk register , to be preserved in his majesties general-register-house , shall give in all their registers and books preceeding the first of august ▪ before the first of november . to be keeped by the clerk of register ; and that hereafter they shall keep only ten years records in their own hands , for the use of the leidges ; with certification , that these who failzies , shall incur such pains and penalties as the lords of session shall think fit . and it is hereby declared , that no privat grant made by any clerk register , shall excuse them from obedience to this act , which tends so much to the security of the people , and preservation of the records . xxxiv . act for poll-money . june . . our soveraign lord , with consent of the estates of parliament , statutes and ordains , that for relief of heretors , and others lyable in the supply , granted to his majesty by this present parliament , that their vassals who pay no part of the cess ; and also their own , and their vassals tennents , sub-tennents , and others living upon their land , shall be taxed , and pay in to the saids heretors yearly , during the said supply , the sums of money following : viz. each gentleman , above the quality of a tennent , a proportion to be appointed by the heretor , not exceeding six pounds scots yearly for himself , his wife and children ; each tennent , and other inhabitant , above the quality of a trades-man or cottar , a proportion not exceeding four pounds for themselves , their wives and children : and each trades-man , cottar or servant , a proportion not exceeding twenty shilling scots yearly for themselves , their wives and children ; and it is ordained that the heretors shall have the same execution for raising of the saids sums , as for their mails and duties . xxxv . act anent messengers fees. june . . our soveraign lord , with advice and consent of the estates of parliament , statute and ordain , that it shall be in the power of the sheriffs , stewarts , bailies of regalities , justices of peace , and magistrats of burghs royal respective , within whose bounds any legal diligences shall be used , to modifie the prices and charges craved by messengers , for execution of their offices from any of his majesties leidges upon the complaint of the parties , either for , or against whom the messengers were imployed . xxxvi . act anent the address of the estates of parliament of his majesties ancient kingdom of scotland , to his sacred majesty , against the arch-traitor archibald campbel , sometime earl of argile . june . . the estates of parliament , taking to their consideration the great happiness conferred on this nation by almighty god , in having been for so many ages governed and protected by a long and continud succession of glorious and just monarchs , and when they had very just reason to expect a further continuance and increass in this happiness , from the auspicious entry of your sacred majesty to the possession of your undoubted right , and from your extraordinary justice , prudence , courage and conduct , they cannot but with horror reflect on the unparalelled treachery of that hereditary and arch-traitor , archibald campbel , late earl of argile , who after that our late merciful king had restored his family , notwithstanding it had been guilty of a dreadful tract of rebellion , bloodshed , and oppression , and had raised it to a greater lustre and estate than ever it had formerly arrived at ; yet he did imploy that power the king had invested him with , to support that traiterous and fanatical party , and to oppress all who had served the king against his father in the late rebellion ; and being more led by the inveterat treachery , in which he had been educated , then remembring the great favours so undeservedly bestowed upon him , he committed these crimes for which he was justly forefaulted ; and in prosecution of them , he has at last absolutely pluckt off the mask , by invading this your majesties ancient kingdom , and his own native countrey ▪ and by endeavouring to defame in a publick proclamation , the late king and your sacred majesty , robbing and spoiling such innocent and loyal men as would not joyn with him , and associating to him these barbarous miscreants , who did undertake to assassinat your majesty , and your royal brother , as rumbold the maltster , now passing by the name of bowls , who at the ry was to have committed the said horrid assassination ; these also who actually murdered iames late arch-bishop of st. andrews , as iohn balfour of kinloch , george fleming in balbuthy , and these other assassins who have rendered almost every mans life unsecure : from all which just resentments , we judged it our duty in all humility , to address to your most sacred majesty , and with all earnestness to implore , that the said archibald campbel , late earl of argile , that execrable traitor , should be for ever secluded from your majesties favour , and that your majesty would be pleased to declare , that he , his family , and the heretors , ring-leaders and preachers who have joyned with him in this rebellion , should be for ever declared uncapable of mercy , and bearing any honours , or enjoying any estate within this kingdom , and to discharge under all highest pains , all your majesties good subjects to interceed for him or them , any manner of way ; and that all such as shall interpose for their restauration , shall incur the pain of treason ; and that your majesty would be pleased in your royal prudence , to inquire who have been the assisters and abaters , either at home or abroad , of this treasonable invasion , by which your majesties government has been so highly injured , and maliciously arraigned , and this your kingdom , so disturbed and harrassed ; to the end your majesty may declare your high displeasure against them , and every one of them , to the terror and example of others ; in return of all which , we the estates of this your majesties ancient kingdom , do hereby most cordially and sincerely , offer with ou●… lives and fortunes , to assist your majesty against this , and all other traitours , their adherents and associats . xxxvii . act for the clergy . june . . our soveraign lord , considering how just and necessary it is , and how much it imports the honour of his government , that the persons of the arch-bishops and bishops , and all others the orthodox and loyal clergy , be protected from the sacrilegious assaults , violence , outrages and assassinations of fanatical , impious and bloody-men , who to the scandal of religion and humanity , do maintain the pernicious and horrid principles of rebellion , violence , murther and assassination , and to practise accordingly ; doth with advice and consent of his estates in parliament , not only ratifie and confirm all former laws and acts of parliament , made for the security of the persons of the clergy , particularly the fifth act , first session , second parliament , charles the second ; fourth act , second session , second parliament , charles the second ; and fifteenth act , third parliament , charles the second . but further , his sacred majesty from his just abhorrence of , and indignation against all such horrid and inhumane principles and practices , doth with advice and consent foresaid , of new , statute and ordain , that whatsoever person or persons shall be found guilty of assaulting the lives of bishops , or other ministers , or of invading or robbing their houses , or actually attempting the same , shall be punished with death , and the confiscation of all their goods ; and if any regular minister shall happen to be assassinated or murthered , the parochioners of that paroch wherein he is assassinated , shall pay such sums as the privy council shall determine ; which sum shall be bestowed to the use and behove of the wife and children of the said minister , at the sight of the privy council ; and if he hath neither wife nor children , it is hereby declared to belong to the nearest of the said ministers kindred ; and the legal and conform parochioners are to have relief , and to be re-imbursed by the noneconform parochioners , or others , who shall be proven to have had accession thereunto , at the sight of the privy council . and the estates of parliament make their humble address to his majesty ▪ for conferring a competent encouragement and reward to such persons as shall make effectual discoveries , or shall apprehend any who commit any of the violences foresaid , either upon bishops , or ministers in their persons or goods respectively ; and if there shall shappen any slaughter , or mutilation to be committed in apprehending such persons ; his majesty with consent foresaid , doth hereby indemnifie the persons imployed , and all such as shall assist in apprehending of them ; and declareth them free of all question or trouble for the same , in all time thereafter . and his sacred majesty being firmly resolved to conserve and maintain the church in the present state and government thereof , by arch-bishops and bishops , and not to endure , nor connive at any d●…rogation from , or violation of it ; doth therefore , with advice and consent of his estates assembled in this parliament , ratifie , approve and confirm all former laws and acts of parliament made and passed in the reigns of his royal grand-father , king iames the sixth , his royal father king charles the first , and royal brother king charles the second of glorious , memories : restoring the church to its ancient and right government by arch-bishops and bishops , and redintegrating the estate of bishops to the exercise of their episcopal function ; and to all the priviledges , immunities , dignities , jurisdictions and possessions which was enjoyed by , or by the laws of the kingdom was due to their predecessors , in the year . and ordains them to stand in full force , as publick laws of the kingdom , and to be put in execution in all points , conform to the tenor thereof , as if they were herein all specially repeated and expressed : and in pursuance of his majesties royal resolution therein , his majesty with advice foresaid , doth recommend to all his ministers of state , lords of his privy council , and all other judges and magistrats , to take the persons and interests of the loyal and orthodox clergy , under their special care and protection ; that all laws , acts and statutes , made in their favours , may receive due and ready obedience from all his majesties subjects . xxxviii . act concerning the registration of writs in the books of session . june . . our soveraign lord , with advice and consent of the estates of parliament , considering , that there have been in all time by-past , only three offices of the ordinary clerks of session , and that the erection of any moe of these offices is unnecessary , and may be prejudicial to the leidges , therefore , statutes and ordains , that there be only three offices of ordinary clerks of session in time coming , and that there be no moe then two persons conjoyned in each of these offices , which shall remain intire in the full extent thereof , without alteration , division , or dismemberation of any part of the same . and statutes and declares , that they as clerks to the session , and their successors have the only right to be clerks as deputs to the lord register , to all processes which are competent before the lords of session , and to the registrating and extracting of all writs registrat in the books of council and session , and have right to all priviledges , profites and emoluments , whereof the saids clerks are in possession : and for the better securing of the leidges , both as to the registration and preservation of principal writs , statutes and ordains , that the clerks of the session keep an exact register a part in every one of their offices for registration of all writs , and that they appoint one or two fit , diligent , and faithful persons in every office , to receive in the writs given in to be registrat , from whom they are to take caution for their registrating , recording , and safe preserving of these writs . and appoints , that there shall be two minut-books kept in every office , in the one whereof there shall be set down the title of writs given in to be registrat , the name of the giver in , and the date of the ingiving ; which is to be subscribed by the clerk , or his substituts foresaids , and all writs so given in , shall be booked within the space of one year after the ingiving ; and if any party , or one employed by him , shall desire up a writ given in , within the space of six moneths after its ingiving , then the title of the writ , the name of the party , and the date of both ingiving and outgiving of the said writ shall be insert in the other minut-book , and be subscribed by the receiver thereof , that as the one minut-book doeth charge , so the other minut-book may discharge the clerk of such writs , and that no writ given in , shall be taken out after the same is booked ; and the clerks are to begin the foresaid method of the saids two minut-books , from the first day of august next ensuing ; and when the time come●… that these registers are to be given in to the general register house , the two minut-books are likewise to be given in with them subscribed by the clerk ; and the deput appointed by the lord register for keeping of the saids registers , shall subscribe other doubles of the saids minut-books , which are to keeped by the clerks for information of the leidges in their offices . and the clerk of register , or his deput , are hereby ordained to keep all principal writs in a secure room , distinct from the room where the registers are keeped : as also , further ordains the clerk of register once in the year to visite the registers in every chamber , as he shall be answerable . and because many writs are registrat incompetently outwi●…h the jurisdiction , to the great prejudice of the leidges , ( such registrations being void and null , and consequently all execution following thereupon . ) therefore , statutes and ordains , that no clerk of inferior court for the future , presume to registrat any writs in his books , either for conservation , or where execution is to pass against any party that dwells without the jurisdiction , under the pain of deprivation , and of five hundred merks of penalty , the one half to his majesty , and the other half to the party pursuer . likeas , his majesty , with consent foresaid , ratifies and approves the gifts granted by the clerk register to the present ordinary clerks of session , of their respective offices , in the whole heads , tenors , and contents of the same ; declaring these presents to be as effectual , as if the saids gifts were verbatim here insert . and in respect that by this act , there is a great addition to the clerk register his care and trouble , as well as to the peoples security , therefore , it is ordained , that there shall be twenty shilling scots payed to the clerk register in place of the merk formerly payed to him and his predecessors for each subscription ▪ xxxix . act in favours of planters , and inclosers of ground . june . . our soveraign lord , with advice and consent of the estates of this present parliament , for the encouragement of inclosing of ground and planting of trees , does ratifie and approve all former laws and acts of parliament made in favours of inclosers of ground and planters of trees , and particularly the act , parl. . charles . intituled , act for planting and inclosing of ground . and because the time prescribed in the said act is now elapsed , they statute and ordain , that the whole heads contained in the said act be observed for the space of nineteen years next to come , commencing from the date hereof . and likewise , ratifies and approves the act , parl. . charles . intituled , act for inclosing of ground . and ordains the same to be observed in all time coming . and further , statutes and ordains , that hereafter no person shall cut , break , or pull up any tree , or piel the bark of any tree , under the pain of ten pounds scots for each tree within ten years old , and twenty pounds scots for each tree that is above the said age of ten years , and that the havers or users of the timber of any tree that shall be so cut , broken , or pulled up , shall be lyable to the same penalty , except he can produce the person from whom he got it , and if the person that shall be so convicted be not able to pay the fine , then he shall be decerned to work a day for each half me●…k contained in the said fine to the here●…or whose planting shall be so cut or broken : as likewise , statutes and ordains , that no person shall break down or fill up any ditch , hedge , or dike , whereby ground is inclosed , and shall not leap or suffer their horse , nolt , or sheep to go over any ditch , hedge , or dike , under the pain of ten pounds scots , toties quoties , the half whereof to be applyed to the heretor , and the other half for the mending and repairing of bridges and highways within the paroch at the sight of the sheriff , stewart , or justices of peace before whom the contraveeners shall be pursued . xl. act of annexation of the offices belonging to the late earl of argile . june . . our soveraign lord , with advice and consent of the estates of parliament , considering how dangerous it hath always been to the peace and quiet of this kingdom , to bestow too many heretable jurisdictions , office●… , and superiorities upon any of his majesties subjects , living in the remot high-lands , and that by such helps as these , the family of argile did in the last age , as well as this , commit , and maintain their execrable treasons , and oppress and enslave his majesties faithful and loyal subjects , and that the jurisdictions , offices , superiorities , and constabulaties after-specified are now fallen in his majesties hands , by the sentence and doom of forfaulture given and pronounced against archibald campbel late earl of argile , by the commissioners of justiciary upon the day of . therefore , his majesty , with consent foresaid , do unite , annex , and incorporat to his crown of this his ancient kingdom , to remain inseparably with the same in all time coming , the offices of justice general of all the isles of scotland , except orkney and zetland , of the shires of argile and tarbet , and of all the remanent lands and estate belonging to the said late earl in scotland , the heretable lievetenand●…y of argile and tarbet shires , the heretable chamberlainry of both these shires , the office of admirality of all the lands belonging to him the said archibald campbel , the right of the commissariot in so far as it belong'd to the late earl , the office of the kings master-houshold within scotland , the heretable sheriff-ship of argile and tarbet shires , the heretable crownership , and toshdorich , or mayorship in these shires ; as also that half of the casualities belonging to the king and prince formerly dispon'd by his majesty and his predecessors to the earl of argile and his predecessors , viz. the half of the wairds , reliefs , marriages , non-entries , escheats , amerciaments , and of all casualities whatsoever belonging to the king and prince within the saids shires ; and sick like , the patronage of all kirks and prebandries which any manner of way did belong to the said late earl and his predecessors ; and in like manner , the constabularies , of the castles of craignish , tarb●…t , carrick , duni●…e , swine ; and dunstaffnige , with the profits , rents , and emoluments belonging thereto ; as also , the superiorities of all and whatsoever lands belonging to the earl of ●…road-albion , lord lovat , iohn m cleod of herreis , the heirs of the late lord m cdonald , of donald m●…donald of moydart , of the laird of m●…lean , mclean of lochbuy , m clean of torlosk , and of the other heretors holding of the late earl of argile in the isles of mull , iura , tir●…e , of the lands belonging to the lairds of calder , locheall , achinbreck , m cnaughtan , arkinless , m●…alaster of tarbat , arbruchell , duncan of lundy , campbel of 〈◊〉 , the lairds of orms●…y and lochnell , together with the superiority of the burgh of inverary , and the property of the house , castle , and parks of inverary ; declaring that the generality hereof , shall be as sufficient , as if each part of the saids lands , and every patronage , were particularly herein exprest . and that this present annexation is affected with all the conditions and provisions as to the way and manner of alienation and dissolution mentioned and exprest in the former act of parliament , annexing to the crown the lands of the earl of tarras , lord melvill , and others . xli . act declaring the greenland-fishing to be a manufactory . june . . our soveraign lord , with consent of his estates of parliament , considering the great advantage which may accrew to this kingdom by encouraging the greenland-fishing , whereby vast sums of money will be kept within the kingdom , and by the export of oyl and whale-bone considerable sums of money brought into the kingdom . do therefore declare the greenland-fishing an manufactory , and to have all the priviledges and immunities made in favours of any other manufactory , or fishing-company ; and that all a●…l or drinking-beer made use by the ships to be sent to greenland , and an butt of brandy for each ship yearly shall be free from excise , imposition , custom , or any dues whatsoever . and the greenland-fishing being much prejudged by the importing of forraign soap , or whalebone , the customers quitting the one half of the duty imposed by act of parliament upon imported soap . do therefore , expresly prohibite and discharge the fermorers of his majesties custom , or others , from quitting or abating any of the said duty due by law upon imported whale-bone or soap ; and if it be discovered , that they shall quite or abait any of the said duty , that the said soap or whale-bone shall be confiscate , the one half to his majesty , and the other half to the discoverer , and the tacksmen or collector who shall be found so guilty , to be censured by his majesties privy council or exchequer , as they judge fit . xlii . act of annexation of several lands to the crown . june . . our soveraign lord , and estates of parliament , considering that the traitors after-mentioned , have of late been forefaulted upon processes of treason , intented at the instance of sir george m ckenzie , his majesties advocat , against them , both before the high court of parliament , and the commissioners of justiciary ( viz ) sir iohn cochran of ochiltry , sir patrick h●…me of polwart , thomas steuart of cultness , pringle of torwoodlie , george late lord melvil , david montgomery of lainshaw , sir hugh campbel of cesnock , sir george campbel younger of cesnock , mr. robert martin , sometime clerk to the justice-court , walter late earl of tarras , mr. robert bailie of ierriswood , thomas kenedy of grange , porterfield of duchal , mr. william and alexander gordons , late of earlstoun elder and younger , iames gordon younger of cra●…en : and his majesty and estates of parliament , being desirous to annex the whole lands , barronies , teinds , annualrents , roums , possessions , milns , woods , fishings and others , which pertained to the fore-named persons , any manner of way , to the crown , for the better supporting the dignity of his royal estate , and the expenses of his government : his majesty does therefore , with advice and consent foresaid ▪ ratifie and confirm the saids decreets of forefaulture ; and ordains the same to be of full force , strength , and effect in all time coming , holding and willing this their ratification to be as sufficient and effectual , as if the saids decreets , and whole tenors thereof were insert herein . and further , his majesty with consent foresaid , doth unite , annex and incorporat to his crown , of this his ancient kingdom , to remain inseparably therewith in all time coming , all and whatsoever lands , lordships , baronies , heretages , roums , possessions , milns , woods , fishings , tacks , steedings , teinds , annualrents , patronages , wodsets , expired apprysings and adjudications , castles , towers , fortalices , houses , biggings , yairds , orchyairds ; annexis , connexis , tennents , goods and aikers , and all other heretages , lands and estates whatsomever , pertaining and belonging to the fore-named persons , rebels and traitors above-mentioned , or any of them , by whatsomever manner of way , right or title , and wherein they , or any of them , have been , or might have been in possession , or to which they , or any of them have succeeded , or may succeed , as representing any person , and where the same ly within this realm , of whatsomever name , title , bounding , or designation the same be of , dispensing with the foresaid generality ; and declaring the same to be as sufficient , as if every particular , roum , land or barony pertaining to the fore-named , forefaulted rebels and traitors , or any of them , and which can any manner of way fall under their forefaultries , were herein particularly condescended on and exprest ; and particularly , but prejudice of the foresaid generality , the lands , baronies , and others after-mentioned , which formerly pertained to these of the saids traitors after-named ; viz. the lands and barony of ochiltry , the lands and barony of trabeanch , the lands of chalmerstoun , the lands of kinowdouns , and flownstoun , the lands of craigman , the lands of brownstoun , beaches , the lands of green-hill , and the superiorities and feu-duties of the twenty pound land of carbel , all lying within the sheriffdom of air , with the whole pertinents thereof , which pertained to the said sir iohn cochran , sometime of ochiltrie ; the lands and barony of polwart , the lands and barony of greenlaw , red-path , with the rights of patronages , and whole pertinents thereof , and lands of pertaining to the said sir patrick hume , sometime of polwart , lying within the sheriffdom of berwick ; the lands and barony of cultness , lying within the sheriffdom of lanerk ; and the lands of north-berwick , lying within the constabulary of haddingtoun , which pertained to the said thomas steuart , sometime of cultness ; the lands and barony of torwoodlie , with the pertinents thereof , lying within the lordship of ettrick-forrest , and sheriffdom of selkirk , sometime pertaining to the said pringle of torwoodlie ; the lands , lordship and barony of mony-mail , comprehending the lands , patronages , and baronies mentioned in the infeftments thereof , lying within the sheriffdom of fife , and particularly , comprehending the lands and baronies of raith , and balweirie , sometime pertaining to the said george lord melvil ; the ten merk land of lainshaw , and teinds thereof , the ten merk land of kirkbryd , with the miln and pertinents , the five pound land of milnstoun-fleet , the five merk land of over and nether ▪ peacock lands , with the miln and pertinents , with the tower and fortalice , called castlesturt , and lands of brockholmer , all lying within the bailiary of cunningham , and sheriffdom of air , the lands of over-cassilioun , extending to a three merk land , with the teinds and pertinents , lying within the said bailiary and sheriffdom , all formerly pertaining to the said david montgomery , sometime of lainshaw ; the lands and barony of riccartoun , the lands and barony of cesnock and galstoun , with the tower of cesnock , and pertinents , the lands and barony of bair , the lands and barony of castlemains , the lands and barony of hayningress , all lying within the sheriffdom of air , and the lands of newhal , lying within the sheriffdom of fife , formerly pertaining to the said sir hugh and sir george campbels , sometime of cesnocks ; the lands and barony of hughchester , the mains of borthwickshiels , lying within the shire of roxburgh , the lands of robertoun and howeleuch-miln , and pertinents thereof , lying in the sheriffdom of selkirk , the lands and steedings of alemuir , , lying in the said shire , the lands of cassock , tameucher , and glenderig , lying in eskaldemuire , the lands of harden , mabenlan , hichchester , and borthwick-walls , lying in the sheriffdom of roxburgh , formerly pertaining to the said walter , sometime earl of tarras ; the lands and barony of ierviswood , lying within the sheriffdom of lanerk , the lands and barony of mellerstains , lying within the sheriffdom of roxburgh , formerly pertaining to the said mr. robert bailie , sometime of ierviswood , the lands of grange , and heretable office of bailiary of monkland , lying within the bailiary of carrick , and sheriffdom of air , formerly pertaining to thomas kennedy , sometime of grange , the lands and barony of duchal , and pertaining to porterfield , sometime of duchal ; the lands and barony of earlestoun , the lands and barony of kenmuir and others , formerly pertaining to the said william and alexander gordons , late of earlestoun , lying within the sheriffdom of wigtoun , and stewartry of kirkcudbright respective ; the lands and barony of craiglaw and others , formerly pertaining to the said iames gordon younger of craiglaw , together with all other lands , teinds and rights whatsomever , belonging to the remanent of the saids traitors , or to all or any of them , or whereof they were in possession , or to which they might have succeeded any manner of way , with all lands , teinds and others , castles , towers , fortalices , milns , multures , fishings , annualrents , reversions , patronages of kirks and teinds , personages and viccarages , and all and whatsomever mines of gold , silver , copper and other minerals within the foresaid bounds , and belonging to the saids forefaulted traitors , with all other parts , pendicles and pertinents , casualities , priviledges , jurisdictions , offices , and others whatsomever , pertaining to the same : all which , his majesty with consent foresaid , doth unite and annex to his crown , declaring the generality foresaid to be as sufficient to the intent and effect foresaid , as if each part , parcel and pertinents of the saids lands , offices , patronages , priviledges and others belonging to the saids traitors , or any of them , and whereof they were in possession , were herein exprest . and it is statute and declared , that the saids lordships , lands , baronies , teinds and others respectivè above-mentioned , annexed to the crown in manner-foresaid , shall remain therewith in all time-coming ; and that the same , or any part thereof , shall not , nor may not be given away in fee and heretage , nor in frank , tenement , liferent , pension , or tack , except for the full duty , which may be gotten from , and payed by the tennents , or by any other manner of alienation , right or disposition whatsomever , to any person or persons , of whatsomever estate , degree , or quality they be , without advice , decreet , and deliberation of the whole parliament , and for great weighty and reasonable causes , concerning the good , welfare and publick interest of the whole kingdom ; first to be proposed , and to be advised and maturely pondered and considered by the estates re integrâ , before any previous grant , right or deed be given , made or done by his majesty , or his successors , concerning the disposition of the saids lordships , baronies and others , or any part thereof , which may any wayes predetermine them , or the estates of parliament , and prejudge the freedom of their deliberation and consent . and if at any time hereafter it shall be thought fit to dispone , or grant any right of any part of the saids lands , superiorities , offices , teinds and others ; it is declared , that the general narrative of good services , weighty causes and considerations , shall not be sufficient ; but the particular causes and considerations , whereupon his majesty and his successors may be induced to grant , and the estates to consent to such rights , are to be expressed , that it may appear that the same is not granted through importunity , or upon privat suggestions or pretences , but for true , just , and reasonable causes and considerations of publick concernment . and further , it is declared , that if any general act of dissolution , of his majesties property , shall be made at any time hereafter , the saids lands and others above-mentioned , and annexed , shall not be understood to fall , or be comprehended under the same : and if the saids lands , and others foresaid , or any part thereof , shall be annalzied or disponed ; or any right of the same shall be granted otherwise then is appointed , and ordained in manner above-mentioned , his majesty with consent foresaid , doth statute and declare , that all dispositions , infeftments , and other rights of the saids lands , and others foresaid , or any part thereof , which shall be granted contrary to this present act , with all acts of dissolution and ratification , and other acts of parliament concerning the same , shall be from the beginning , and in all time-coming , void and null , and of no effect ; and notwithstanding thereof , it shall be lawful to our soveraign lord , and his successors for the time , to take back and receive at their pleasure , for their own use , without any process of law , the lands and others above annexed , or any part thereof , which shall be annalzied , or disponed , and these in whose favours any such rights , or alienations shall be made , shall be accomptable for , and lyable to refound and pay all profits , intromission , or benefit taken , uplifted , or enjoyed by them , in the mean time . and it is declared , that all other clauses , articles and provisions , contained in any former act , or acts of annexation , to the advantage of his majesty and his crown , are , and shall be holden , as repeated , and insert herein : but it is hereby always declared , that if any of the saids lands hold of a sub-altern vassal , that it shall be lawful to his majesty to present a vassal to the intermediat superiour . to the end his majesty may thereby apply the mails and duties of these lands so holden , to his majesties own use . it is always hereby declared , that the annexation of the lands of north-berwick , as belonging to the said thomas stuart , sometime of cultness , shall not prejudge the senators of the colledge of justice , as to their right and interest in these lands , who are hereby declared preferable for the same ; reserving also lieutennant collonel , theophulus ogilthrop , and major mayn , and captain cornwal his authors , the rights and grants made to them respectivè by his late majesty , in so far as concerns the lands gifted to them , to be bruiked and enjoyed by them , ay and until they be satisfied by his majesty , or by their own intromissions . xliii . act in favours of the inhabitants of orkney and zetland . june . . our soveraign lord considering the great distance of the islands of orkney and zetland from the town of edinburgh , the ordinary place of justice , and the uncertainty of passage by sea , and the many fresh waters and other ferries in the way by land ; doth with advice and consent of his estates of parliament , statute and ordain , that all summons to be intented against the inhabitants of orkney and zetland , before the lords of privy council , the lords of session , and before the commissioners of justiciary , and letters of horning and law-borrows upon their decreets , or by their warrand , shall be execute in time coming upon fourty days ; but prejudice always of letters to be raised upon writs registrated of consent of parties , where , by the clause of registration , the party consents that execution should pass on a shorter time . xliv . act for a standart of miles . june . . our soveraign lord , thinking it fit , that there should be a fixed standart for measuring and computation of miles , and that the whole isle of britain should be under on certain kind of commensuration , doth therefore with consent of the estates of parliament , statute and ordain , that three barley corns set lengthways , shall make an inch , as it is already used ; that twelve inches shall make a foot of measure , which is to be the only foot by which all work-men , especially masons , wrights , glasiers and others are ordained to measure their work in all time coming , under the pain of an hundreth pounds , toties quoties ; three of these foot 's are to make a yard , as three foot and one inch makes a scots eln , and a thousand seven hundreth and sixty yards are to make a mile , which is to be made the standart of computation from place to place in all time coming . xlv . act in favours of sir william bruce , for enlarging the shire of kinross . iune . . our soveraign lord , and estates of parliament , considering the smalness and extent of the sheriffdom of kinross , and jurisdiction thereof , to support and maintain the state and rank of a distinct shire , as it is , and anciently has been , and that it will be of great advantage and ease to his majesties lieges , the several heretors , residenters and inhabitants within the parochs of portmock , cleish and tilliboal ( excepting alwayes , and reserving the jurisdiction of the lands of carnboe , bridge-lands , cruick , and cruick-miln , lying in the said paroch of tilliboal , and stewartry of strathern , whereof iames earl of perth , lord high chancellour is heretable stewart , out of this present act , which is hereby declared to be without prejudice thereunto , infringement thereof , or incroachment thereupon , or to the detriment of the said heretable stewartry in any manner of way whatsomever ) and to the heretors of these several parts and portions of land , lying in the paroch of kinross , and in the shires of fife and perth ; and of the barony of cuthilgourdy , lying in the shire of perth , and belonging to sir william bruce of kinross baronet , heretable sheriff of the said shire of kinross , be disjoyned from the saids shires of fife and perth ; and jurisdictions thereof , and joyned , annexed , and united to the shire of kinross , and jurisdiction thereof , unto which the saids parochs and lands ly contigue , and most conveniently : and that iohn marquess of athol , sheriff principal of the sheriffdom of perth ; and margaret countess of rothes , and the deceast charles , earl of hadingtoun her husband , heretable sheriff of the shire of fife , have for their respective interests , consented to the disjunction of the saids lands , and parochs above-mentioned , from the saids shires of fife and perth , and to the uniting them to the said shire of kinross , and heretable jurisdiction thereof , in favours of the said sir william bruce , heretable sheriff of the same , with the burthen of the valuation , and all other publick burthens laid on , or to be laid on the same : therefore his majesty and estates of parliament , upon the considerations foresaid , hereby dismember and disjoyn the saids several parochs of portmock , cleish and tilliboal , and whole lands contained therein ( reserving the jurisdiction of the saids lands , as is above reserved ) and the saids parts and portions of land , in the paroch of kinross , lying within the saids shires of fife and perth , and the saids lands and barony of cuthilgourdy , from the saids shires of fife and perth , and jurisdictions thereof , for now and ever ; and adjoyn , unite , annex , and incorporat the same to the said sheriffdom , and heretable sheriff-ship of kinross ; and statute , ordain and declare them in all time coming , to be a part of the shire of kinross , in and to all effects and purposes , and in particular in point of jurisdiction , judicatures , civil and criminal , and in all matters privat and publick whatsoever ; and in the ordering , casting and collecting of cess , excyse , militia , out-reeks of levies , and mending of high-wayes , as amply and freely as any other shires do , or may do within this kingdom ; discharging hereby all other sheriffs and their deputs , and justices of peace within the saids shires of fife and perth from exercing any power of jurisdiction over any of the saids lands and parochs foresaids , heretors and inhabitants thereof , in any time coming , as being now only answerable to the sheriff-court of kinross , and justices of peace within the same ( reserving alwise to the said iames earl of perth , and his heirs , the jurisdiction of the saids lands of cruik , cruik-miln , carnboe and bridg-lands , as heretable stewart of the said stewartry of strathern ) and in respect that formerly the publick burthens , cess , excise , militia , and mending of high-wayes , and other publick concerns , were ( because of the smalness of the shire of kinross , and that for many years , the right and interest thereof was broken , and divided in the hands of many creditors ) casten in , and mannaged with the publick concerns of fife ; and the shire of kinross being now enlarged , and that interest brought in , and made intire again in the person of the said sir william bruce ; therefore his majesty , with consent foresaid , separates the said shire of kinross from fife , as to all these publick concerns and actings , as well the lands contained therein formerly , as these annexed thereto by this present act ; and from the shires of fife and perth respectivè , in all matters whatsoever that relate to , pertain , and fall within the precinct , and jurisdiction of the said shire of kinross , as it is now established and comprehended by this present act , and to consist of the parochs of kinross , urwell , portmock , cleish , and tilliboal , and whole lands lying within the saids parochs , and of the saids lands and baronies of cuthilgourdie , with the burthen of the valuation of the saids parochs and lands ; and liberating and freeing the saids respective shires of fife and perth , proportionally of the burthen thereof ; and particularly ( without prejudice of the generality foresaid ) of all cesses , excise , militia , out-reeks of horse and foot , high-wayes , and all other publick burthens , and impositions laid , or to be laid upon these lands , disjoyned from the saids shires of fife and perth , and annexed to kinross in manner foresaid ; and particularly , liberats the shire of fife of the valuation of the lands formerly contained in the shire of kinross , and of the valuation of the lands that are now disjoyned from the shire of fife , and adjoyned to the shire of kinross , amounting both to the sum of eighteen thousand five hundreth and sixteen pounds scots money . and also , particularly liberats and frees the shire of perth of the valuation of the saids lands , hereby disjoyned from the shire of perth , and now annexed to the shire of kinross , extending to the sum of one thousand , seven hundreth and eighteen pounds , six shilling eight pennies , scots money , making up the saids two valuations , in the whole , the sum of twenty thousand , two hundreth and thirty four pounds , six shilling , eight pennies , scots money , which is declared to be the full and compleat valuation of the shire of kinross hereafter , and the rule of proportioning the publick burthens laid on , or to be laid on the said shire of kinross . willing and appointing the heretors , inhabitants and possessors of the saids lands , in all time coming , to answer to the courts of the said sheriffdom of kinross , and to be lyable to the jurisdiction of the sheriffs thereof , in all causes , civil and criminal , competent to an sheriffs cognition , and to be holden , reputed and esteemed in all time hereafter , a part of the said shire of kinross , to all effects , and particularly ( without prejudice of the generality foresaid ) with the burthen of all cess , excise , and other impositions whatsoever , militia and other out-reeks , collecting and ordering thereof : and that in all retours , rights , dispositions , charters and infeftments of the saids lands , they be designed in all time-coming , to ly within the said sheriffdom of kinross : and that all denunciations , and executions of hornings , apprysings , inhibitions , adjudications , publications of interdictions ▪ and other legal diligences against the heretors , possessors and inhabitants of the saids lands , with all brieves , proclamations and others , be used and execute at the said mercat cross of kinross , head-burgh of the said shire , in like manner , and to the same effect , as these executions are used at the head-burgh of any other shire ; and in case there be any mistake in the casting of , and inserting in this act the sums of the valuation above-mentioned , to the prejudice of any of the saids other shires . his majesty with consent foresaid , ordains the commissioners of cess and excise of the saids other shires , to meet , adjust , and settle the saids proportions ; and being so adjusted , to signifie the same to the lords of his majesties privy council , under their hands , that the same may be recorded in the books of privy council , for a rule hereafter . as also , his majesty , with consent of the saids estates of parliament , considering that by the sixteenth act of the twenty second parliament of his majesties dearest grand-father , king iames sixth , in anno . ( entituled act anent registration of seasins , reversions and other writs ) that for the great ease of the lieges , the saids registers were established in the burgh of couper in fife , for the whole lands lying in the bounds of the saids sheriffdoms of fife and kinross , or were to be established in any other place or places more convenient : and that now for the greater ease and accomodation of the leiges , it is thought more fit and convenient , that the said register be kept at kinross , head-burgh of the shire thereof , for the whole lands , as well formerly lying within , as now annexed to the same shire : therefore his majesty , and estates of parliament foresaids , statute and ordain , that in all time coming , there be a publick , particular register , for registrating seasins , renunciations , reversions , discharges of reversions , grants of redemption , and other writs , enjoyned to be registrated by the said former act of parliament ▪ keeped by the clerk of registers , and his deputs , at the said burgh of kinross , for the whole lands , as-well formerly lying within the said shire of kinross , as now annexed thereto , within the space , to the same effect , and with the like conditions mentioned and contained in the foresaid act , in anno . for registration of seasins , reversions , &c. and lastly , his majesty and estates of parliament foresaids , hereby ratifie and approve , in favours of the said sir william bruce , and his heirs-male , tailzie , and others contained in his infeftments of the estate of kinross , the twenty ninth act of the first parliament of his majesties dearest father , king charles the first of ever blessed memory ( entituled , act in favours of the earl of morton and the lord dalkeith his son , anent the loch of loch-levin , and preservation of the fishes thereof ) and ordains the said act to be put to execution by the said sir william bruce , and his foresaids , and his and their deputs and bailies , after the form and tenor thereof . it is alwise hereby declared , that this act , and every part thereof , is but prejudice to the said sir william bruce ▪ and his heirs of any other iurisdiction of regality or bailiary , formerly belonging to him of any of the saids lands , either formerly belonging , or now annexed to the said shire of kinross . xlvi . act salv●… jure cujuslibet . june . . our soveraign lord taking to consideration , that there are several acts of ratification , and others past , and made in this session of parliament , in favours of particular persons , without calling or hearing of such as may be thereby concerned , or prejudged ; therefore his majesty , with advice and consent of the estates of parliament , statutes and ordains , that all such particular acts , and acts of ratification past in manner foresaid , shall not prejudge any third party of their lawful rights , nor of their actions and defences competent thereupon , before the making of the saids particular acts , and acts of ratification ; and that the lords of session , and all other judges of this kingdom , shall be obliged to judge betwixt parties , according to their several rights standing in their persons , before the making of the saids acts : all which are hereby exponed , and declared to have been made , salvo jure cujuslibet . xlvi . act of adjournment to the last tuesday of october . june . . the kings majesty declares this parliament currant ▪ and adjourns the same to the last tuesday of october next , . and ordains all members of parliament to attend that day : and that there be no new elections of commissioners from shires or burghs , except upon the death of some of the present commissioners . collected and extracted from the registers and records of parliament , by tarbat , cls. reg. a table of the printed acts . act for security of the protestant religion . pag. a declaration and offer of duty by the kingdom of scotland , with an annexation of the excise to the crown . pag. act concerning citations in processes for treason . pag. act concerning witnesses in processes for treason . pag. ibid. act declaring it treason to take , or owne the covenants . pag. ibid. act obliging husbands to be lyable for their wives fines . pag. ibid. act anent porterfield of duchal , and concealing of supply given to rebels . pag. act against preachers at conventicles , and hearers at field-conventicles . pag. ibid. act for the more effectual payment , and inbringing of his majesties rents and revenues . pag. ibid : act concerning judicial confessions before the commissioners of iusticiary . pag. act obliging persons to accept offices . pag. ibid. act of supply pag. act for taking the test. pag. act explaining the th act of the parliament . concerning prescriptions . pag. ibid. act explaining the th act of the parliament , anent interruptions . pag. act anent iustices of peace . pag. ibid. act for taking the oath of allegiance . pag. act concerning vacant stipends . pag. ibid. act ratifying the priviledges of the senators of the colledge of iustice. pag. act for preserving game . pag. ibid. act against stealing of dogs and hawks . pag. act concerning ●…ailzies . pag. ibid. act ratifying the opinion of the lords of session , anent these who refuse to depone anent the late treasonable proclamation , . pag. act ordaining that tennents be obliged by their tacks to live regularly . pag. ibid. act ratifying two acts of parliament , and a proclamation of council , anent apprehending of rebels . pag. act concerning adjudications for fines . pag. act for securing sea passengers . pag. act and commission for plantation of kirks , and valuation of teinds . pag. ibid. act concerning citations before circuit courts pag. act approving the narrative of the plot. pag. ibid. act for security of the officers of state and others . pag. ibid. act concerning the militia . pag. act for security of the records . pag. ibid. act for poll-mony . pag. ibid. act anent messengers fees. pag. act anent the address of the estates of parliament of his majesties ancient kingdom of scotland , to his sacred majesty , against the arch-traitor , archibald campbel , sometime earl of argile . pag. ibid. act for the clergy . pag. act concerning the registration of writs in the books of session . pag. act in favours of planters , and inclosers of ground . pag. act of annexation of the offices belonging to the late earl of argile . pag. ibid. act declaring the green-land-fishing to be a manufactory . pag. act of annexation of several lands to the crown . pag. ibid. act in favours of the inhabitants of orkney and zetland . pag. act for a standart of miles . pag. ibid. act in favours of sir william bruce , for enlarging the shire of kinross . pag. ibid. act salvo iure cujuslibet . pag. act of adjournment . pag. a table of the acts , and ratifications , past in the first session , of his majesties first parliament , and which are not here printed . protestation by some noblemen , and others , commissioners from shires , and burghs , concerning their precedency in the rolls of parliament . his majesties letter to the parliament , with the parliaments answer . record of the production of the patent of honour granted by his majesty to the viscount of tarbat and his admission . act for several yearly fairs , and weekly mercats , to some noblemen , and others . act in favours of the viscount of tarbat . act in favours of the lord advocat . act ratifying and approving the late earl of argiles forfaulture . act ratifying and approving the sentence of forfaulture against the late mr. robert baillie of ierviswood . act ratifying and approving the sentence of forfaulture against hamilton of monckland . act for a commission anent the estate of the late earl of argile . act in favours of the viscount of tarbat , for changing an high-way . remit from the parliament to the kings majesty concerning the earls of roxburgh and lothian . act concerning trade and manufactories . act for a commission of trade . commission for regulation of inferiour judicatories . decreet and sentence of forfaulture against sir iohn cochran . decreet and sentence of forfaulture against sir patrick home of polwart . decreet and sentence of forfaulture against pringle of torwoodlie . decreet and sentence of forfaulture against mr. robert martine , sometime clerk to the justice court. decreet and sentence of forfaulture against thomas stuart of cultness . decreet and sentence of forfaulture against mr. robert ferguson . decreet and sentence of forfaulture against the late lord melvill . decreet and sentence of forfaulture against the lairds of cessnock elder and younger . decreet and sentence of forfaulture against david montgomery of langshaw . act in favours of the children of sir william primrose . act remitting the processes of treason depending before the parliament , to the justice court. act reducing the conversion of the ancient few-duties of the estate of argile . act for sowing pease and beans , and inhibiting the casting up of ground within the shi●…e of aberdeen ▪ act in favours of the burgh of innerness . act in favours of the burgh of aberdeen . act in favours of david areskine of dun. act in favours of the town of dalkeith . act in favours of sir patrick frazer of doors . act in favours of the town of linlithgow . act for exacting a petty custom at several bridges . ratification in favours of the duke of gordon . protestation the earl of marischal against the same . protestation the bishop of aberdeen against the same . protestation the earl of finlater against the same . protestation the laird of drum against the same . protestation sir iohn gordon in behalf of the duke of gordon , against the foresaids protestations . ratification in favours of the earl of mar. ratification in favours of the earl of monteith . three ratifications in favours of george viscount of tarbat . ratification in favours of the royal colledge of physicians . protestation the town of edinburgh against the same . ratification in favours of mr. roderick mackenzie of prestounhall . ratification in favours of the earl of southesk . ratification in favours of hugh wallace of inglistoun . ratification in favours of mr. iohn richardson , and iohn drummond . protestation sir iames rocheid , and iames hamilton against the same . ratification in favours of aeneas m cleod . ratification in favours of sir robert lowrie of maxweltoun . ratification in favours of duncan toshich of monyvaird . ratification in favours of collonel iames dowglas , and robert bartoun . ratification in favours of the apothecaries in edinburgh . protestation the chirurgian-apothecaries against the same . ratification in favours of christopher irving . ratification in favours of collonel barclay of ury , and his son. ratification in favours of the trades of edinburgh . protestation the trades of the cannongate against the same . ratification in favours of the bonet-makers and litsters of edinburgh . protestation the weavers of the cannongate against the same . ratification in favours of the burgh of innerness . ratification in favours of iohn scot of comistoun . ratification in favours of iames miln . ratification in favours of mr. david dewar advocat . ratification in favours of donald m cdonald of moydart . ratification in favours of sir william bruce of kinross . ratification in favours of sir iohn murray of drumcairn . ratification in favours of the laird of drum. ratification in favours of sir george mackenzie , his majesties advocat . ratification in favours of iames caddel of muirtoun , with an erection of the lands of blackstoh in an burgh of barony . ratification in favours of the baxters of edinburgh . protestation the baxters of the cannongate against the same . ratification in favours of mr. david grahame tutor of gorvy . ratification of an act of convention of the burrows in favours of the burgh of barony of cromarty . ratification in favours of mr. roderick mackenzie of dalvenan . ratification in favours of iohn lawder of fountainhall , and sir iohn lawder his son. ratification in favours of sir iohn gordon of rothemay . protestation the town of forrest , against iames caddel of muirtouns ratification . act in favours of the bishop of the isles . decreet of precedency in favours of the earl of strathmore . finis . a treatise of the principal grounds and maximes of the lawes of this nation very usefull and commodious for all students and such others as desire the knowledge and understandings of the laws / written by that most excellent and learned expositor of the law, w.n. noy, william, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing n estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a treatise of the principal grounds and maximes of the lawes of this nation very usefull and commodious for all students and such others as desire the knowledge and understandings of the laws / written by that most excellent and learned expositor of the law, w.n. noy, william, - . doddridge, john, sir, - . treatise of particular estates. t. h. certain observations concerning a deed of feoffament. the second edition with additions. [ ], p. printed by t.n. for w. lee, d. pakeman, r. best and g. bedell ..., london : . with: a treatise of particular estates / written by sir john doddridge. london printed, (p. - )--certain observations concerning a deed of feoffament / by t.h. london printed, (p. - ) reproduction of the original in the bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- great britain. real property -- great britain. conveyancing -- great britain. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion a treatise of the principal grounds and maximes of the lawes of this nation . very usefull and commodious for all students , and such others as desire the knowledg and understanding of the laws . lex plus laudatur , quando ratione probatur . written by that most excellent and learned expositor of the law , w. n. of lincolns-inn , esquire . the second edition , with additions . london , printed by t. n. for w. lee , d. pakeman , r. best , and g. bedell , and are to be sold at their shops in fleetstreet , and grays-inn gate , . an analysis of the laws of england , by the honorable and most learned william noy esq atturney gen : and of the privy councel to the late king. justice is a constant & perpetuall will to render every man his own right : it is naturall according to law whereare considered law divine law of reason law humane forreign english common , where is treated i. of law where is considered the law it self , which is by tradition , which is general , and belongs to * written statute injuries forbiden by that law private , against the person and goods publique against the king & commonwealth . of the manner of delivering that law civill ecclesiastical temporal in peace the admiral in warr the marshal * the person , where is considered the quality ; as name the king the subject who is of baptism creation natural who is politick free , who is villain in his own power , where is considered not in his own power intention action there cause time place efficient material formal final . by nature action of the person by common law , or the kings charter the thing , which is universal which is of natural right out of divers causes particular , in which dominion may be gained where are considered peculiar , which belongs to the king to the subject according to his prerogative legal & ordinary regal & absolute according to peculiar custom of place prescription of persons . things or goods themselves ; which are real personal primary secondary simple compound of the land upon it corporate incorporate . to have ownership , which is by estate and propriety by right by his own right right of another single joint by possession possibility of franktenement chattels hereditary frank-tenement alone in fee in tail absolute conditional qualified general special by law by gift as dower curtesy of engl. for life , or life of another real personal term of years at will animate inanimate remote near reversion remainder parceners joint tenants tenants in common interest and propriety use authority of action of entry . the manner of acquiring ownership by law by purchase discent , or forfeiture absolute with consideration by writing by word by devise by record by deed fine recovery executed executory with voucher without single double feoffment grant with atturny barg . & sale inrol'd by grant ratification release confirmation render election concord assignment by common-law by statute . the manner of admitting ownership by operation of law by act of the party extinguishment suspension discent , which takes away entry commission omission discontinuance warranty estoppell forfeiture ii. the manner of delivering the law is by law by act of the party immediate mediate , by actions in courts where are considered claim entry . the diverse actions in which right is given writs plaints original judicial real personal mixt for the right the possession for the person the goods of right of law of the kings grace of course magistral pleas of the crown common pleas . the divers courts where remedy is had ; here are considered the courts themselvs their jurisdictions ; & there temporal of the king the subject superior inferior of record of barony the persons pleas of the courts in them judges ministers demand ' tenant real personal plaintiff defend ' of the crown common . the manner of prosecution in courts direct collaterall by processe by pleading with that pleas tryall judgment execution by the court-adjornment by persons in the court , as-essoin . the manner of defeating the process by prohibition assignation of errors . the manner of taking away the punishment flight pardon . chap. i. the laws of england are threefold ; common laws , customes , and statutes . the common law . the common law is grounded on the rules of reason , and therefore we use to say in argument , that reason will that such a thing be done , or that reason will not that such a thing be done ; the rules of reason are of two sorts , some taken from learning ▪ as well divine as humane , and some proper to itself onely . of theologie . . summa ratio est , quae pro religione facit . atenure to finde a preacher , if the lord purchase parcell of the land ▪ yet the whole service remaineth , because it is for the advancement of religion . . dies dominicus non est juridicus . sale on a sunday shall not be said sale in a market , to alter the property of the goods . of grammbr . of grammer , the rules are infinite in the etymologie of a word , and in the construction thereof ; what is nature , is single . . ad proxium antecedens fiat relatio , nisi impediatur sententia . as an inditement against i. s. servant to i. d. in the county of middlesex ▪ butcher , &c. is not good ; for servant is no addition , and butcher shall be referred to i. d. which is the next antecedent . of logick . . cessante causa , cessat effectus . the executor , nor the husband , after the death of a woman guardian in soccage , shall not have the wardship , because ( viz. ) the natural affection is removed which was the cause thereof . some things shall be construed according to the original cause thereof . . the executor may release before the probate of the will , because his title and interest is by the will , and not by the probate . to make a man swear to bring me money upon pain of killing , and he bringeth it accordingly , it is felony . outlawry in trespass , is no forfeiture of land , as outlawry in felony is ; for although the non-appearance is the cause of the outlawry in both , yet the force of the outlawry shall be esteemed according to the heynousness of the offence , which is the principal cause of the process . . according to the beginning thereof : as if a servant , which is out of his masters service , kill his master , through the malice which he bare him when he was his servant , this is petty treason . . according to the end thereof ; as if a man warned to answer a matter in a writ , there he shall not answer to any other matter then is contained in the writ ; for that ●as the end of his coming . . derivativa potestas non potest esse majus primitiva . a servant shall be stopped to say the frank-tenement is belonging to his master , by a recovery against his master , although the servant be a stranger to the recovery ; for he shall not be in better case then he is in , whose right he claimeth , or justifieth . . quod ab initio non valet , in tractu temporis non convalescit . if an infant , or a married woman , do make a will , and publish the same , and afterwards dyeth , being of full age , or sole , notwithstanding this will is void . . vnumquodque dissolvitur eo modo quo colligatur . an obligation or other matter in writing , may not be discharged by an agreement by word , but by writing . . he that claimeth a thing on high , shal neither have gain , nor loss thereby . as if one joynt-tenant make a lease o● his joyntee , reserving rent , and die ; the heire which surviveth shall have the reversion of his joyntee , but not the rent , because he cometh in by the first feoffer , and not under his companion . also where the husband being leased for yeers in right , reserving a rent , the woman shall have the residue of the terme , but not the rent . . debile fundamentum , fallit opus . when the estate whereunto the warrantie is annexed is defeated , the warrantie is also defeated . . incidents may not be severed . as if a man grant wood to be burnt in such a house , wood may not be granted away , but he which hath the house , shall have the wood also . . actio personalis moritur cum persona . as if battery be done to a man , if he that did the battery , or the other die , the action is gone . if the leasor covenant to pay quit-rents , during the terme , his executor shall not pay it , for it is a personal covenant . . things of higher nature , do determine things of lower nature . as matters of writing do determine an agreement by words . if an offence which is murder at the common law , be made high treason , no appeal lieth for it , for that the murder is drowned , and punishable as treason , whereof no appeal lieth . . majus continet minus . whereby the custom of a manor , a man may demise for life , he may demise to his wife , durante viduitate . . majus dignum trahit ad se minus dignum . as the writings , the chest or box they are in . of philosophy . . naturae vis maxima . natural affection or brotherly love , are good causes or considerations to raise an use . and one brother may maintain a suit for another . . the law favoureth some persons . viz. men out of the realm , - or in pison , women married , infants , ideots , mad-men , men without intelligence , strangers , that are neither parties , nor privie , and things done in anothers right . a descent shall not take away the entry of a man out of the realm , or in prison , or of a married woman , or of an infant . and a lease made to the husband and wife , after the death of the husband , the wife shall not be charged for waste , during the mariage . an ideot shall not be compelled to plead by his guardian or next friend , but shall be in the court ; and he that pleadeth the best plea for himself , shall be admitted : if a dumb man bring an action , he shall plead by his next friend : if a lessee for years grant a rent-charge , and surrendereth , the rent shall be paid , during the terme , to the stranger : a man out-lawed or excommunicated ▪ may bring an action as an executor : . and a mans person before his possessions , mentioned of corporal pain , shall avoid a deed , but not his goods . . and matter of possession more then matter of right , when the right is equall . as if a man purchase several lands at one time , held of several lords by knights service , and dieth , the lord which first seizeth the ward , shall have it , otherwise his elder lord. . matter of profit or interest shall be taken largely : and it may be assigned , and it may not be countermanded ; but matter of pleasure , trust or authority , shall be taken strictly , and may be countermanded . as licence to him in my park , or in my garden to walk , extendeth onely to himself , and not to his servant , nor any other in his companie ; for it is matter of pleasure only ; otherwise it is of a licence to hunt , kill , and carry away the deer , which is matter of profit . a church-way is matter of ease . of political . . nothing shall be void , which by possibility may be good ; if land be given to a man , and to a woman married to another man , and the heires of their two bodies , this is a present estate tayle , because of the possibilitie . . ex nudo pacto non oritur actio . no man is bound to his promise , nor any use can be raised without good consideration . a consideration must be some cause or occasion which must amount to a recompence in deed , or in law , as money , or natural affection , not long acquaintance , nor great familiarity . . the law favoureth a thing that is of necessity . as to pay several expences , shall not be said to administer ; to distrain in the night , dammage feasant , to kill another to save his own life . a servant to beat another to save his master , if he cannot otherwise choose . to drive another mans cattel amongst mine own , untill i come to a place to shift them , is no trespass . . and for the good of the common-wealth . as killing of foxes , and the pulling down of an house of necessity to stay a fire . . communis error facit jus . as an acquittance made by a major alone , where there be a hundred presidents , is good . . and things that are in the custody of the law . goods taken by distress , shall not be taken in execution for the debt of the owner thereof . . the husband and the wife are one person . they cannot sue one another , nor make any grant one to another : and if a woman marry with her obligor , the debt is extinct ; and she shall never have any action , if another were bound with him ; for by the mariage the action is suspended ; and an action personal suspended against one , is a discharge to all . . an obligation with a condition to enfeoff a woman before such a day , and before the day the obligor taketh her to wife , the obligation is forfeited , because he cannot infeoff her , but he may make a lease for years with a remainder to his wife . when a joynt purchase is , during the marriage , every one shall have the whole . when a joynt purchase , during the mariage , is made , and the husband sell ; the wife shall have a cui in vitâ for the whole against both , and on a feoffment made to one man and his wife , and to a third person , the third person shall have one moity . . all that a woman hath , appertaineth to her husband . personal things , and things absolutely reall , as lands , rents , and so forth , or chattels reall , and things in action , are onely in her right ; notwithstanding real things , and things in action , he may dispose at his pleasure , but not will or charge them ; and he shall have her real chattels , if he survive . of things in action , the woman may dispose by her last will , and she may make her husband her executor , and he shall recover them to the use of the last will of his wife . if a leassee for years grant his terme to a man , or woman , and to another , they are joynt-tenants ; but if goods be given to her and to another , her husband and the other are tenants in common . the husband may release an obligation , or trespass for goods taken when his wife was sole , and it shall be good against the woman if he die ; but if he die without making any such release , the woman shall have the action , & not the executor of her husband . the woman surviving , shall have all things in action ; or her executors , if she die . the husband shall be charged with the debts of his wife but during her life . , the will of the wife , is subject to the will of her husband . note , a feoffment made to the wife , she shall have nothing , if her husband do not thereunto agree . morall rules . . the law favoureth works of charitie , right , and truth , and abhorreth fraud , coven and incertainties , which obscure the truth ; contrarieties , delayes , unnecessary circumstances , and such like . . dolus & fraus una in parte sanari debet . no man shall take benefit of his own wrong ; if a man be bound to appear at a day , and before the day the obligee casts him in prison , the bond is void . a grant of all his woods in b. acre , which may be reasonably spared , is a void grant , if it be not reserved to a third person , to appoint what may be spared . a feoffment made in fee of two acres to two men , habend one acre to one , and the other acre to the other ; this habend ▪ is void . . lex neminem cogit ad impossibilia &c. , the law compelleth no man to shew that which by intendment he doth not know ; as if a servant be bound to serve his master in all his commandements lawfull , it is a good plea , to say , he served him lawfully . a covenant to make a new lease upon the surrender of the old lease , and after the covenanter doth make a lease by fine , for more years to estrange , the covenant is broken , although the lessee did not surrender , the which by the words ought to be the first act , for that the other had disabled to take , or to make . law constructions . the law expoundeth things with equity and moderation , to moderate the strictness ; it is no trespass to beat his apprentice with a reasonable correction , or to go with a woman to a justice of peace , to have the peace of her husband , against the will of her husband , which equity doth restrain the generality , if there be any mischief or inconvenience in it ; as if a man make a feoffment of his lands in , and with common , in all his lands in c. the common shall be intended within his lands in c. and not in his other lands he shall have else-where . . every act shall be taken most strictly against him that made it . as if two tenats in common , grant a rent of . shillings , this is several , and the grantees shall have . shillings : but if they make a lease , and reserve . shillings , they shall have onely . shillings between them ▪ so an obligation to pay . shillings at the feast of our lord god ; it is no plea to say that he did pay it ; but he must show at what time , or else it will be taken he paid it after the feast . . he that cannot have the effect of a thing , shall have the thing it self . vtres magis valeat quam pereat . as if a termor grant his terme , habendum immediat è post mortem suam ; the grantee shall have it presently . . when many joyn in one act , the law saith it is the act of him that could best do it , and that thing should be done by those of best skill . as the disseizee , and the heir of the disseizor , who is in by discent , joyn in a feoffment ; this shall be the feoffment of the heire onely , and the confirmation of the disseizee . and the merchant shall weigh the wares , and not the collectors ▪ : when two titles concur , the elder shall be preferred . : by an acquittance for the last payment , all other arrerages are discharged . : one thing shall enure for another : if the leasor enfeoff the lessee for life , it shall be taken for a confirmation ▪ . in one thing , all things following shall be concluded , in granting , demanding , or prohibiting . if one except a close , or a wood , the law will give him a way to it . . a man cannot qualifie his own act. as to release an obligation untill such a time . . the construction of the law may be altered by the special agreement of the parties . if a house be blown down by the wind , the lessee is excused in waste ; but if he have covenanted to repair it , there an action of covenant doth lie by the agreement of the parties . . the law regardeth the intent of the parties , and will imply their words thereunto ; and that which is taken by common intendment , shall be taken to the intent of the parties ; and common intendment is not such an intendment as doth stand indifferent ; but such an intent as hath the most vehement presumption . all incertaintie may be known by circumstances , every deed being done to some purpose , reason would that it should be construed to some purpose , and variance shall be taken most beneficial for him to whom it is made , and at election . . an intendment of the parties shall be ordered according to the law. if a man make a lease to a man , and to his heires , for ten years , intending his heires shall have it , if he die , notwithstanding the intent , the executors shall have it . . qui per alium facit , per seipsum facere videtur . a promise made to the wife in consideration of a thing to be performed by her husband , if he agree , and perform the consideration , in an action of the case , he shall declare the assumption was made to him . and if my servant sell my goods to another in deqt i shall suppose , he bought them of me . customes . consuetude est altera lex . customes are of two sorts ; general customes in use throughout the whole realme , called maximes ; and particular customes used in some certain county , citie , towne , or lordship , whereof some have been specified before , and some follow here , and where occasion is offered . general customes . the kings excellencie is so high in the law , that no freehold may be given to him , nor derived from him , but by matter of record . every maxim is a sufficient authority to itself ; and which is a maxime , and which is not , shall alwayes be determined by the judges , because they are known to none but to the learned . a maxime shall be taken strict . a particular custom , except the same be a record in some court , shall be pleaded , and tryed by . men . chap. ii. statutes . the last ground of the laws of england standeth in divers statutes made by our soveraigne lord the king , and his progenitors , and by the lords spiritual , and temporal , and the commons in divers parliaments , in such cases where the former laws seemed not sufficient to punish evill men , and to reward the good . of general statutes the judges will take notice if they be not pleaded , but not of special , or particular . all acts of parliaments , as well private as general , shall be taken by reasonable construction , be collected out of the words of the act only , according to the true intention and meaning of the maker . foure lessons to be observed , where contrary laws come in question . . the inferiour law must give place to the superiour . . the law general must yeild to the law special . . mans laws to gods laws . . an old law to a new law . and oftentimes all these laws must be joyned together to help a man to his right ; as if a man disseized , and the disseizor made a feoffment to defrand the plaintiff , in this case , it appears that the said unlawfull entrie is prohibited by the law of reason . but the plaintiff shall recover double dammage , and that is by the statute of hen. . and that the dammage shall be sessed by . men , that is , by the custome of the realm , and so in some case , these three laws do maintain the plaintiff's right . and these laws concern either mens possessions , or the punishment of offences . and so much shall be sufficient to be said touching common law , customes , and statutes . concerning possessions . the difference between possession and seizin , is , lease for years is possessed , and yet the lessor is still seized ; and therefore the termes of the law are , that of chattels a man is possessed ; whereas in feoffments , gifts in tayle , and leases for life , he is called seized . chap. iii. of possession of frank-tenement . tenant in fee-simple , is he which hath lands , or tenements to hold to him and his heires for ever . it is the best inheritance a man may have ; he may sell , or grant , or make his will of those lands . and if a man die , they do discend to his heire of the whole blood . chap. iv. fee-tayle . fee-tayle is , of what body he shall come that shall inherit . tenant in tayle , is said to be in two manners . tenant in tayle general , and tenant in tayle special . general tayle is , where lands or tenements be given to a man , and his wife , and to the heires of their two bodies , or to his heires males , or to his heires females . tenant in tayle , is not punishable for waste . tenant in tayle cannot will his lands , nor bargain , sell or grant , but for terme of his life , without a fine , or recovery . if a man will purchase lands in fee , it behoveth him to have these words , heires , in his purchase . if a man would grant lands in tayle , it behoveth him to appoint what body they shall come of . yet a devise of lands to a man and his heires males , is a good intayle ; and of lands to a man for ever , a good free-simple . how lands shall discend . inheritance is an estate which doth discend ; it may not lineally ascend from the son which purchaseth in fee , and dyeth , to his father ; but discendeth to his uncle or brother , and to his heires , which is the next of the whole blood , for the half blood shall not inherit : but the most worthy of blood , as of the blood of the father before the mother ; of the elder brother before the other , and borne within espousall . a discent shall be intended to the heire of him which was last actually seized ; that the sister of the whole blood , where the elder brother did enter after the death of his father , and not his brother of the halfe blood , nor any other collaterall cosen shall inherit ; yet notwithstanding such a one is heire to a common ancester ; in which rule , every word is to be observed , and so in every maxim , if the land , rent , advowson , or such like do discend to the elder son , and he die before any entry , or receit of the rent , or presentment to the church , the younger son shall have and inherit ; and the reason is , because that in all inheritances in possession , he which claimeth title there unto as heire , ought to make himself heire to him that was last actually seized . here the possession of the lessee for years , or of the guardian , shall invest the actual possession , and frank-tenement in the elder brother . but he dying seized of a reversion , or a remainder , or an estate for life , or in tayle ; there he which claimeth the reversion , or remainder as heire , ought to make himself heire to him that had the gift , or made the purchase . feodo excludeth an estate tayle , where the second son shall inherit before the daughter . and if the lands be once settled in the blood of the father , the heire of the mother shall never have them , because they are not of the blood of him that was last seized . and to the heire of the blood of the first purchaser ; as if the father purchase lands , and it discendeth to the son , who entreth , and dieth without heires of the fathers part , then the lands shall discend to the heires of the mother or father of the father , and not to the heires of the mother of the son ; although they are more neer of blood to him that was last seized , yet they are not of the blood of the first purchaser . if the heires be females in equal distance , as daughters , sisters , aunts , and so forth , they shall inherit together , and are but one heire , and are called parceners . gavill-kinde . doth discend to all the sons , and if no sons , to all the daughters : and may be given by will by the custome . chap. v. parceners . parceners are of two sorts . women and their heires by the common law . men by the custom . they may have a writ of partition , and the sheriff may go to the lands , and by the oath of : men , make partition between them , and the eldest shall have the capitall messuage by the common law , and the youngest by the custome ; where the parties will not shew to the jewry the certaintie , there they shall be discharged in conscience , if they make partition of so much as is presumed and known by presumptions and likelyhoods . parceners may by agreement make partition by deed , or by word , and the eldest first choose , unless their agreement be to the contrary . every part at the time of the partition must be of an even yearly value , without incumbrance . rent may be reserved for equality or partition ( and may be distrained for ) without a deed. parceners by divers discents , before partition , being disseized , shall have one assize . a parcener before partition , may charge , or demised her part . the entrie or act of one copartner , or joynt-tenant shall be the act of both ; when it is for their good . if a parcener after partition be entred , she may enter upon her sisters part , and hold it with her in parcenary , and have a new partition , if she hold none of her part before she was outed , viz. in exchange . chap. vi. joynt-tenants . ioynt-tenants be such as have joynt estates in goods , or lands , where he that surviveth shal have all without incumbrance , if the tenements abide in the same plight as they were granted . joynt-tenants may have several estates ; a joynt-tenant cannot grant a rent-charge , but for terme of his own life . a joynt-tenant may make a lease for life , or for years , of his part , or release , and the lessee for years may enter , although the lessor die before the lease begin , and his heire shall have the rent , but the survivor the reversion . a joynt-tenant may have a writ of partition by the statute of the . of h. . cap. . a partition made by joynt-tenants , or tenants in common of estates of inheritance , must be by indenture ; by word 't is void . chap. vii . tenants in common . tenants in common , are those that hold lands and tenements by several titles . they may joyne in action personal , but they must have several actions real . they may have a writ of partition by the stat. of . h. . cap. . if one parcener , joynt-tenant , or tenant in common take , all the other have no remedie , but by ejectione firme , or such like , or waste . gavil-kinde-lands . tenant by the curtesie of kent , whether he have issue or no , untill he marry , and so forth , he may not commit waste . chap. viii . tenant in dower . a woman shall be indowed of all sorts of inheritance of her husband , where the issue that she had by him may inherit , as heire to his father , by meetes , and bounds of a third part , she shall have house-roome , and meat , and drink in common , for forty dayes ; but she may not kill a bullock within those . days after the death of her husband , in which time her dower ought to be assigned her . the assignement by him that had the frank-tenement is good , but by him that is guardian in soccage , or tenant by elegit , verte elegit , or statutes , or lessee for years , is not . she is to demand her dower on the land. she shall recover dammages when her husband dyed seized , from the death of her husband ; if the heire be not ready at the first day to assigne her dower . she shall have all her chattels real againe , execept her husband sell them ; he may not charge them , or give them by his will ; and likewise her bonds , if the money were due in the life of her husband , and all convenient apparel ; but if she have more then is fit for her degree , it will be assets . a woman shall be barred of her dower so long as she detaineth the bodie of the heire , being ward , or the writing of the sons land. a woman shall not be endowed of any lands that her husband joyntly holdeth with another , at the time of his death . dower of gavil-kind lands . if the woman shall be endowed of one half so long as she is unmarried , and chaste , and it may be held with the heire in common . it is of lands and tenements , and not of a faire or such like ; where the heire loseth not his inheritance , there she loseth not her dower . joynture . if a woman have a joynture be fore marriage , she may claim no dower , . hen. . if it be made during marriage , she may enter into her joynture presently . if she enter , or accept of it , she shall not be endowed . if she shall be expulsed of any part of her joynture , she shall be endowed of the residue of her husbands lands . chap ix . tenant for terme of life . tenant for terme of life , is he that hath lands or tenements for terme of his life , or another mans life , and none of lesser estate may have a free-hold . if a tenant for life sowe the lands and die before the corn be reaped ; his executor shall have it , but not the grasse , nor other fruit . if a tenant for life be impannelled upon an inquest , and forfeit issues and die , they shall be levied upon him in the reversion ; and so likewise if the husband , on the lands of the wife . chap. x. tenant for terme of yeares . tenant for terme of years , is where a man letteth lands or tenements to another for certain yeares . he may enter when he will , the death of the lessor is no let , and may grant away his terme before it begin ; but before he enter , he cannot surrender , nor have any action of trespasse , nor take a release . he is bound to repaire the tenements . the lessor may enter to see what reparations or waste there is , and he may distraine for his rent or have an action of debt . if tenant for life or years granteth a greater estate then he hath himselfe , he doth forfeit his terme . chap. xi tenant at will. tenant at will is hee that holdeth lands , or tenements at the will of another . the lessor may reserve a yearely rent , and may distraine for it , or have an action of debt ; the lessee is not bound to repaire the tenements . the will is determined by the death of the lessor , or of a woman lessee by her marriage , or when the lessee will take upon him to doe that which none but the lessor may doe lawfully , it determineth the will and possession , and the lessor may have an action of trespasse for it . the lessee shall have reasonable time to have away his goods , and his corne ; but he shall lose his fallow , and his dung carried forth . chap. xii . remainder : a remainder is the residue of an estate at the same time appointed over , and must be grounded upon some particular estate given before ▪ granted for years or for like , and so forth . and ought to begin in possession , when the particular estate endeth , there may bee no mean time between ; either by grant or will. no remainder can be of a chattel personal ; a remainder cannot depend on a matter ex post facto , as upon estate tayle , upon condition that if the tenant in tayle sell , then the land to remain to another , is a void remainder . chap. xiii . reversion . a reversion is the residue of an estate that is left after some particular estate , granted out in the grantor ; as if a man grant lands for life , without further granting ; the reversion of the fee-simple is in the lessor . chap. xiv . waste : waste lieth against a tenant by the curtesie , for life , for years , or in dower , and they shall lose the place wasted , and treble dammages . waste lieth not against a tenant by elegit , statute-merchant , or staple ; but account after the debt or dammage levied . waste , or account will lie against a tenant in mortgage , because he had fee conditionall . waste is not given to the heire for waste in the life of his father . waste is given against the assigne of the tenant for life , or of anothers life , but not against the assignee of a tenant in dower , or of the curtesie , it is to be brought against themselves . it is waste to pull up the formes , benches , doors , windowes , walls , filbert-trees , or willows planted . chap. xv. discontinuance . discontinuance is where a man that hath the present possession , by makeing a larger estate then he may , divesteth the inheritance of the lands or tenements out of another , and dieth , and the other hath right to have them , but he may not enter , because of such alienation , but is put to his writ . if a man seized in the right of his wife , or if a tenant in tayle made a feoffment , and died , the wife might not enter , nor the issue in tayle , nor he in reversion , but are put to the waction . now the wife may enter by the statute , : . h. . and a recovery suffered by the tenant by curtesie , or by the tenant after possibility of issue extinct , or for terme of life , is now made no discontinuance . such things that pass by way of a grant by deed without livery , and seizin , cannot be discontinued as a reversion , or rent-charge common , &c. a release or confirmation without warranty , maketh no discontinuance . chpp. xvi . discents . discents which take away entries , is where a man disseizeth another , and dieth , and his heire entreth , or maketh a feoffment to another in fee , or in tayle , and he dieth , and his heire entreth ; these discents put a man from his entrie . a discent , during minority , marriage , non sanae mentis , imprisonment , or being out of the realm , do not take away an entry . discents of rents in gross , the lord notwithstanding may distrain . a dying seized of a terme for life , or of a remainder , or reversion , doth not take away an entrie , he must die seized in fee ▪ and frank-tenement . a diseizin cannot be to one joynt-tenant or parcener alone , if it be not to the other . if a condition be broken after a discent , the donor , feoffor , or his heires may enter . a wrongfull diseizin is no discent , unless the diseisor have quiet possession five years without entrie , or claime , . h. . chap. xvii . continuall claime : continual claime is a demand made by another of the propertie or possession of a thing which he hath not in possession , but is withholden from him wrongfully ; defeateth a discent , hapning within a year and a day after it is made , and now by the statute within five years . chap. xviii remitter . remitter is , when by a new title , the frank-tenement is cast upon a man , whose entrie was taken away by a discent , or discontinuance , he shall be in by the elder title ; as if tenant in tayle discontinue the tayle , and after diseizeth his continuance , and dieth thereof seized , and the land discend to his issue , in that case he is said to be in his remitter , viz. seized his ancient estate tayle . when the entrie of a man is lawful , and he taketh an estate to himself , when he is of full age , if it be not by deed indented , or matter of record which shall estop him , it shall be to him a good remitrer . a remitter to the tenant shall be a remitter to him in the remainder , and reversion chap. xix . tenures . all lands are holden of the king immediately , or of some other person , and therefore when any that hath fee , dyeth without heire , the lands shall escheate to the lord. and they are holden for the most part either by knights service , or in soccage . knights service draweth to it ward , marriage , and relief , viz. of ward , marriage , and relief . the heire male unmarried , shall be in ward untill years of age . if he be married in the life of his ance●tors , yet the lord shall have the profit of the ●●nd till his full age . none shall be in ward during the life of ●he father . if the heire refuse a convenient marriage , he shall pay to the lord the value , when he cometh to full age . if the ward marrie against the will of the guardian , he shall pay him the double value of his marriage ; but if the heire be of the full age aforesaid , he shall pay a relief . a relief for a whole knights fee , is l for half a knights fee s. for a quarter , for more , more ; for less , less , accordingly . a relief is no service , but is incident to a service , the guardian must not commit waste , viz. chattels . tenure in soccage . tenure in soccage is , where the tenant holdeth of his lord by fealty , suit o● court , and certain rent for all manner of service . the lord shall not have the wardship but a relief presently after the death of his tenant . a relief for soccoge land , is a years ren● and is to be paid presently upon a discent o● purchase . as if the land were held by fealty and s. rent per annum , ● s. shall be pai●… for relief . the next of the kin to whom the inheritance may not discend , shall have the wardship of the land , and of the heire , untill his age of . years , to the use of the heire , at which age , the heire may call him to account . if the guardian die , the heire cannot have an action of account against the executor of the guardian . the executor of the guardian may not have the wardship , but some other of the next of kin ; the husband may not alien the interest of the wife , in the guardianship , nor hold it ; if she die , it may not be sold . if another man occupie the lands of the heire , as warden in soccage , the heire may call him to account , as guardian . if the guardian hold the lands , after the heire is . the heire shall call him to account , as his bailiff . gavill-kinde . the next of kin shall have the guardianship of the body , and lands untill the heire be . years of age . diversities of ages . a man hath but two ages . the full age of male and female is one and twenty . a woman hath six ages . the lord her father may distrain for ayd for her marriage , when she is seven . she is double at nine . she is able to assent to matrimony at twelve . she shal not be in warde , if she be fourteen . she shall go out of ward at sixteen . she may sell , or give her lands at . no man may be sworn in any jury , before he be . before which age , all gifts , grants , or deeds as do not effect by delivery of his own hands , are void , and all others voidable , except for necessary meat , drink , and apparrel , &c. an infant may do any thing for his own advantage , as to be executor , or such like ; an infant shall sue by his next friend , and answer by his guardian . gavill-kind . the heire may give or sell at fifteen years of age . . the land must discend , not be given him by will. . he must have full recompence . . it must be by feoffment , and livery of seizin with his own hands , not by warrant of attorney , nor any other conveyance . by the civil law , an infant may be executor at . years of age . an infant may make a will of his goods at . years of age , and a maid at . chap. xxi . rents . there are three manners of rents . rent-service . rent-charge . rent-seck . rent-service is , where a man holdeth his lands of his lord by certain rent , and so forth . rent-charge is granted , or reserved out of certain lands by deed , with a clause of distress . rent-seck , is a rent granted without a distress ; or rent-service , severed from other service , becometh a rent-seck . the reversion of a rent without a deed , is void if the reversion be not in the reser●or ; if a rent be granted from the reversion , it is a rent-seck he which is not seized of a rent-seck , is without remedie for the same . the gift of a peny by the tenant , in name of seizin of a rent-seck , is a good possession and seizin . no rent may be reserved upon any feoffment , gift , or lease , but only to the donor , and his heires , not to any stranger . a rent-charge is extinct by the grantees purchase of parcell of the land , but by the purchase of any of his ancesters it shall not , it shall be apportioned like rent-service , according to the value of the land ; but if the whole land discend of the same inheritance , the rent is extinguished . by the grant of the reversion , the rents and services pass : if rent be granted to a man without more ; saying , he shall have it for terme of his life . if the lord accept of rent or service of the feoffment , he excludeth himself of the arrerages of the time of the feoffment . for a rent-charge behind , one may have an action of annuity , or distrain . distress . for what , when , and where a man may distrain . a man may distrain for a rent-charge , rent-service , herriot ▪ service , and all manner of service , as homage . escuage . fealtie . suite of court. and relief , &c. herriot custome must be seized : and for amerciaments , in a leete , upon whose ground soever it be in the liberty ; a man may not distrain for rent , after the lease is ended , nor have debt upon a lease for life , before the estate of frank-tenement be determined . a man may not distrain in the night , but for dammage feasant . a man may not distrain upon the possessions of the king , but the king may distrain of any lands of his grantee , or patentee . a man may not distrain the beasts of a stranger that come by escape , untill they have been levant , and couchant on the ground , but for dammage feasans . a man may not distrain the oxen of the plough , nor a mil-stone , nor such like that is for the good of the common-wealth , nor a cloke in a taylors shop , nor victuals , nor corne in sheafes , but if it be in a cart , for dammage feasans . a distress must be always of such things as the sheriff may make a replevin . a man may not sever horses joyned together , or to a cart . if a man put cattell into a pasture for a week , and afterwards i. n. doth give him notice that he will keep them no longer , and the owner will not fetch them away ; i. n. may distrain them dammage feasans . if a man take beasts dammage feasans , and driving them by the high way to a pound , the beasts enter into the house of the owner , and the taker prayeth the delivery of them , and the owner will not deliver them : a writ of rescous lyeth . if a man distrain goods , he may put them where he will. but if they perish , he shall answer for them . if cattell , they ought to be put in a common pound , or else in an open place , where the owner may lawfully come and feed them , and notice given to him thereof , and then if they die , it is in default of the owner . cattell taken dammage fesans , may be impounded in the same land ; but goods or cattell taken for others things may not . sheep may not be destreined , if there be a sufficient distress besides . no man shall drive a distress out of the county wherein it was taken . no distress shall be driven forth of the hundred , but to a pound overt within three miles . a distress may not be impounded in several places , upon pain of five pounds , and treble dammage , fees for impounding one whole distress , four pence . the executor or administrator of him which had rent or fee-farme in fee , in fee-tayle , or for life , may have debt against the tenant that should pay it , or distrain : and this is by the statute : h. . so may the husband after the death of his wife , his executor , or administrator . so may he which hath rent for another mans life , distrain for the arrerages after his death , or have an action of debt , . h. . but if the landlord will distrain the goods , or cattell of his tenant , and do sell them , or worke them , or convert them to his own use , he shall be executor of his own wrong . chap. xxiii . diseizin of rents ▪ three causes of diseizin of rents-service . rescous . replevin . inclosure . foure of rent-charge , denyer , & inclosure . forestalling is a diseizin of all . forestalling is , when the tenant doth with force , and armes , way-lay , or threaten in such manner , that the lord dareth nor distrain , or demand the rent . denyall is , if there be no distress on the land , or if there be none ready to pay the rent , &c. and of such diseizins , a man may have an action of novell diseizin against the tenant , and recover his rent , and arrerages , and his dammage and costs ; and if the rent be behind another time , he shall have a redisseizin , and recover double dammage . rescous , and pound-breach . if the lord distrain when there is no rent nor service behind , the tenant may not rescue ; otherwise if another distreine wrongfully ; but no man may break the pound , although he did tender amends before the cattell were impounded . if the lord come to distrain , and see the beasts , and the servant drive them out of his fee , the lord may not have rescous , because he had not the possession , but he may follow them , and distrain , but not dammage feasans . chap. xxiv . common . common is the right that a man hath to put his beasts to pasture , or to use , and occupy ground that is another mans . there be divers commons , viz. common in gross , common appendant , common appertinant , common , because of neighbourhood , viz. the termes of law. the lords of wastes , woods and pasture , may approve against their tenants and neighbours with common appertenant , leaving them sufficient common , and pasture to their tenants . as if one tenant , surcharge the common ; the other tenants may have against him a writ de admensuratione pasturae ; but not against him that hath common for beasts without number , neither may the lord enclose from such tenants : if he do , the tenant may bring an assize against him , and recover treble dammage , but the lord may have a quo jure , and make the tenant shew by what title he claimeth . chap. xxv . wayes . the kings high-way is that which leadeth from village to village . a common high-way is that which leadeth from a village into the fields . a private way is that which leadeth from one certain place unto another , . ed. . in the kings high-way , the king hath onely passage for himself and his people ; and the frank-tenement , and all the profits are in the lord of the soyle , as they be presented at the leete . of a common high-way , the frank-tenement and profits are to him that hath the land next ▪ thereto adjoyning , and if it be stopped , and i be damnified by it , i have no remedy , but by presentment in the leete . if a private way be straitned , or if a bridge there , which another ought to repair , be decayed , an action of the case lieth ; but if the way be stopped , an assize of nusance lieth , and the lessee may have it after the lessors years begin , or the lessee may have an action of the case : if the most part of a water-way , be stopped , an assize will lie . chap. xxvi . liberties . a libertie is , a royall priviledge in the hands of a subject . all liberties are derived from the crown , and therefore are extinguished if they come to the crown again by escheate , forfeiture , or such like , for the greater doth drowne the lesser . one may have park , a leete wayfe , stray , wreck of sea , and ●enura placitorum , by prescription , and without allowance in eyre . but not cognizance of plea , nor cattalla fellonum , vel fugitinorum , aut ut ligatorum a libertie may be forfeited by misusing , as to keep a market otherwise then it is granted . a libertie may be forfeited for not using , when it is for the good of the common-wealth ; as not to exercise the office of the clarke of the market ; but not to use a market , is not . whatsoever is in the king , by reason of his prerogative , may not be granted , or pardoned by generall words , but by speciall . chap. xxvii . of chattells reall . chattells reall , are guardianships , leases for years , or at will , &c. guardianship is a commodity of having the custodie of the body , or lands , or both , where the heire is within age ; and the lord of whom the land is holden , by knights service , shall have the same to his own use ; for it is a chattell reall , and therefore his executor shall have it . the guardian must not do waste , nor in ▪ feoff , upon pain of losing the wardship . but he must maintain the buildings out of the issues of the lands , and so restore it to the heire . if the committee of the king commit , the wardship shall be committed to another ; if the grantee , he shall lose the wardship . and one of the friends of the ward , being his next friend that will , may sue for him . if a lease be made to a man and his heires for . years , it is a chattell , and his executor shall have it ; otherwise if a man will a lease to a man and his heires , here the word heires , are words of purchase , and his heires shall have it ▪ if a man grant , proximam advocationem to i. s. and his heires , it is but a chattell , for it is but for unicâ vice . writings pawned for money lent , are chattells . if a woman have execution of lands by statute-merchant , and taketh a husband , he may grant it , for it is a chattell . of chattells personall . chattells personall , are gold , silver , plate , jewels , utensils , beasts , and other chattells , and moveable goods whatsoever ; obligations , and corne upon the ground . all goods , as well moveable , as unmoveable , corne upon the ground , obligations , right of actions , money out of bags , and corn out of sacks , sunt cattalla . money is not to be passed by the grant of all his goods , and chattells ; nor hawkes , nor hounds , nor other things ; ferae naturae , for the propertie is not in any , not after they are made tame , longer then they are in his possession ; as my hounds following me , or my man , or my hawke flying after a foule , or my deer haunting out of my park . but if they stray of their own accord , it is lawfull for any man to take , and the heire shall have them . all chattells shall go to the executors ; fatts , and furnaces , fixed in a brew house , or dy-house by the lessee ; if they be fixed by tenant in fee , the heire shall have them . now something hath been said concerning possessions , it followeth , that it be shewed , how they may be conveyed from one man to another . chap. xxviii . of conveyances . in every conveyance , there must be a grantor , and a grantee , and something granted . the conveyance of some persons is void , of others voidable . conveyance of a woman covert is void , without the consent of her husband , and it ought to be made in her and his name , except it be done as executor to another . of an infant , that which doth not take effect with the delivery of his own hands , is void , and an action of trespass will lie against him , for taking the things given . otherwise it is but voidable , except it be as executor , or for necessary meat , and drink , &c. for his advantage . voidable of non sane memorie , royall . voidable or made by duresse , royall . voydable by the parties themselves , and their heires , and by them that shall have their estates , except non sane himself . grants by fine . voydable by writ of error , by an infant ▪ during his nonage , and by the husband for a fine levied by his wife alone , during their marriage . conveyance of some persons cannot be good for ever , without the consent of others , as the deane without the chapter ; the major without the commonaltie , and of other bodies politick , that have a common seale , or of a parson without the patron and ordinary . if there be no condition in the conveyance , it shall be intended the elder . a conveyance made to a feme covert , shall be good , and of effect , untill her husband do disagree . an infant may be grantee , so may a woman outlawed , a villaine , a bastard , and a fellon . a bastard can have no heire , but the issue of his body lawfully begotten . an infant at the age of discretion , by his actuall entry ; and a woman against the will of her husband may be a disseisor , or a trespassor . in all conveyances there must be one named , which may take by force the grant , at the beginning of the grant . a grant made to the right heires of one that is dead , is good , or custodibus eccle. is good for goods . all chattells , reall or personall , may be granted ; or given without a deed. rent-service , rent-seck , rent-charge , common of pasture , or of turbarie , reversion , remainder , advowson , or other things which lieth not in manuall occupation , may not be conveyed for years , for life , in tayle , or in fee , without writing . the major , or commonalty , or such like , cannot make a lease for years , without a deed. chap. xxix . of deeds . three things needfull , and pertaining to every deed ; writing , sealing , and delivering . in the writing must be shewed the persons names , their dwelling place , and degree . the things granted , upon what consideration , the estate , whether absolute , or conditionall , with the other circumstances , and the time when it was done . no grant can be made , but to him that was partie to the deed ; except it be by way of remainder . the words must be sufficient in law to bind the parties ; as if a man grant omnes terras certa sua , a lease for years passeth not , but for frank-tenement , at least , nec per omnia bona sua . exceptio semper ultimo ponenda est : the habendum must include the premisses : a condition cannot be reserved , but by the grantor , and it is proper to follow the habend . presently . the habendum , or condition must not be repugnant to the premises , if it be , it is void , and the deed will take effect by the premises . a warrant is good , although it extend not unto all the lands , nor to all the feoffees , or made by one of the feoffors . if it be rased , or interlined in the date , or in any materiall place , it is very suspitious . of sealing . a writing cannot be said to be a deed , if it be not sealed , although it be written , and delivered , it is but an escrowe . and if it were sufficiently fealed , yet if the print of the seale be utterly defaced the deed is unsufficient ; it is not my deed. it may not be pleaded , but it may be given in evidence . of delivery . a deed taketh effect by the delivery , and if the first take any effect , the second is void . a jurie shall be charged , to enquire of the delivery , but not of the date , yet every deed shall be intended to be made , when it doth beare date . diversitie in delivering of a writing . as a deed. as escrow . this delivery ought to be done by the partie himself , or by his sufficient attourney , and so it shall binde him , whosoever wrote , or sealed the same . if one be bound to make assurance , he need not to deliver it , unless there be one to read it to him before . and if any writing be read in any other forme to a man unlearned ; it shall not be his deed , although he seale and deliver it . ▪ there are two sorts of deeds . a deed poll , which is the deed of the grantor , a deed indented , which is the mutuall deed of either parties ; but in law , one is the deed of the grantor , and the other the counter-partie , and if any variance be in them , it shall be taken as it is in the deed of the grantor ; and if the grantor seale only , it is good . chpp. xxx . bargains and sales . no mannor-lands , tenements , or other hereditaments can pass , alter , or change , from one man to another , whereby an estate of inheritance or free-hold is made , or taketh effect in any person or persons , or any use thereof is made , by reason only of any bargain and sale therefore , except the same be made by writing indented , sealed , and inrolled in one of the courts of record at westminster , or within the same court or countie where the tenements so bargained , do lie , before the custos rotulorum , and two justices of peace , and the clerk of the peace , or two of them , where of the clerk of the peace to be one , and that within six months after the date of such writing indented , , h. . the inrollment shall be indented the first day of the terme , and shall have relation to the delivery of the deed , against all strangers . chap. xxxi . feoffments . a feoffment , is an estate made by delivery of possession , and seizin by the party , or his sufficient attorney . a man cannot make livery of seizin , before he have the possession . a joynt-tenant cannot enfeoffe his companion . a co-partner make a feoffment of his part , or release . a man cannot enfeoffe his wife . a disseizor cannot enfeoffe the dsseizee ; for his entrie is lawfull upon the disseizor . such persons as have possession in lands for yeers , or for life , &c. cannot take by livery and seizin of the same lands . if a feoffment be made , and the lessee for years give leave to the lessor to make livery and seizin of the premisses , saving to himself his lease , &c. and he doth , the terme is not surrendred ; for the lessee had an interest which could not be surrendred without his consent to surrender , & here his intent to surrender doth not appear ; wherefore he may enter , & have his term & the rent is renewed , but it is otherwise with a lessee for life , and the rent is extinct . the lessor cannot make livery and seizin against the will of the lessee being on the land ; but he may grant the reversion , and if the lessee do attorn , the free-hold will pass without livery of seizin . livery of seizin . livery of seizin , is a ceremonie used in conveyance of lands , that the common people might know of the passing , or alteration of the estate : it is requisite in all feoffments , gifts in the tayle , and leases for life , made by deed , or without deed . no free-hold will pass without liverie of seizin , except by way of surrender , partition , or exchange , or by matter of record , or by testament . livery of seizin must be made in the life-time of him that made the estate . dona clandestina sant semper suspitiosa . by livery of seizin in one county , the lands in another county will not pass . livery within view , is good , if the feoffee do enter in the life-time of the feoffor . livery may not be made of an estate to begin in future , for no estate in frank-tenement may be given in futuro , but shall take effect presently , by livery and seizin . of vses . the statute of . h. . hath advanced uses , and hath established suretie for him that hath the use against his feoffees ; for before the statute , the feoffees were owners of the land , but now it is destroyed , and the cestyaque use is owner of the same ; before the possession ruled the use , but since the use governeth the possession , indentures subsequent be sufficient to direct the uses of a fine or recovery precedent , when no other certain and full declaration was made before . attorney . an attorney ought to do every thing in the name , and as the act of him which gave him the authority ; as leases in name of the lessor , but he must say , by vertue of his letter of attorney , i do deliver you possession and seizin of , &c. for , &c. an attorney must first take possession before he can make livery of seizin . if an attorney do make livery of seizin ; otherwise then he hath warrant , then it is a diseizin to the feoffor . an attorney must be made by writing sealed , and not by word . chap. xxxii . exchange . in exchange , both the estates must be equall , there must be two grants ; & in every grant , mention must be made of this word exchange . it may be done without livery of seizin , if it be in one shire , or else it must be done by indenture , and by this word exchange , or else nothing passeth without livery . exchange , importeth in the law a condition of re-entry , and a warranty voucher , and recompence of the other land that was given in exchange ; an assignee cannot re-enter , nor vouch , but rebate ; exchanger may re-enter upon an assignee . and the same condition defeated in part , is defeated in the whole , and the same law is in partition . chap. xxxiii . grants . grants must be certain . a grant to i. s. or i. n. is void for the incertaintie , although it be delivered to i. s. the delivery of the deed will not make a void grant good , or to take effect . the lord cannot grant the wardship of his living tenant ; because of the uncertainty who shall be his heire , unless he name some person . when any thing is granted that is not certain , as one of my horses , then the choice is in the grantee . when several things are granted , then it is in the choice of him that is to do the first act. a man cannot grant , nor charge that which he never had . a man may charge a reversion . a parson may grant his tythes , or the wool of his sheep for years . a thing in action , a cause of a suite , right of entrie , or a title for a condition broken , or such like , may not be given or granted to a stranger ; but only to the tenant of the ground , or to him that hath the reversion , or remainder . a thing that cannot begin without a deed , may not be granted without a deed ; as a rent-charge , fayer , &c. every thing that is not given by delivery of hands , must be passed by deed , the right of a thing reall or personall , may not be given in , not released by word ; a rent of condition , or a re-entrie may not be reserved to one that is not partie to the deed. all things that are incident to others , pass by the grant of them that they are incident unto . a man by his grant , cannot prejudice him that hath an elder title . if no estate be expressed in the grant , and livery and seizin be made , then the grantee hath but estate or life ; but if there be such words in the grant , which will manifest the will of the granter , so his will be not against the law , the estate shall be taken according to his intent and will. all grants shall have a reasonable construction , and all grants are made to some purpose , and therefore reason would they should be construed to some purpose . all grants shall be taken most strong against him that made it , and most beneficiall to him to whom it is made . to grants of reversion , or of rents , &c. there must be attornment , otherwise nothing passeth , if it be not by matter of record . attornment is the agreement of the tenant to the grant , by writing , or by word ; as to say , i do agree to the grant made to you , or i am well contented with it , or i do attorne unto you , or i do become your ▪ tenant , or i do deliver unto the grantee a peny , by way of seizin of a rent , or pay , or do but one service onely in the name of the whole ; it is good for all . it must be done in the life-time of the grantor . without attornment , a signiory , a rent-charge , a remainder , or a reversion , will not pass , but by matter of record . without attornment , services pass not by the sale of the manor , nor from the manor , but by bargain and sale inrolled . attornment must be made by the tenant of the free-hold , when a rent-charge is granted . by the attornment of the termor to the grantee of a reversion , with liverie , and the rent also , though no mention be made thereof ; before attornment a man may not distrain , nor have an action of waste . by fine , the lord may have the wardship of the body , and lands before the attornment of his tenant . the end of attornment , is to perfect grant , and therefore may not be made upon condition , or for a time . a tenant that is to perfect a grant by attornment , cannot consent for a time , nor upon a condition , nor for part of a thing granted : but it shall enure the whole absolutely . if the tenant have true notice of all the grant , then such attornment is void . attornment necessary upon a devise . chap. xxxiv . leases . a lease for years must be for a time certaine , and ought to express the terme , and when it should begin , and when it should end certainly ; and therefore a lease for a year , and so from year to year ; during the life of i. s. but for two years , it may be made by word or writing ; if i lease to i. n. to hold untill a hundred pounds be paid , and make no livery of seizin , he hath estate only at will. a lease from year to year , so long as both the parties please , after entrie in any year , it is a lease for that year , &c. till warning be given to depart . . h. . . a lease beginning from henceforth , shal be accounted from the day of the delivery ▪ from the making ▪ shall be taken inclusive from the day of the making , or of the date exclusive . if lands discend to the heires before his entrie , he may make a lease thereof . a man lets a house , cum pertinent ▪ no lands pass ; but if a man let a house , cum omnibus terris eidem pertinent , there the lands thereunto used pass . if a man lets lands , wherein is coale-mines , quarries , and such like , if they have bin used , the tenant may use them . if they be not open , if the tenant for them , imploy them not on the land , it is waste , likewise marle ; the land is the place where the rent is to be paid and demanded , if no other place between the parties be limited . trespass is not given for paying of the rent to the lessor , howsoever it be payable there . and if a man let lands without impeachment of waste , and a stranger cut down the trees , and the lessee doth bring an action of trespass , he shall not recover for the value of the trees , but for the crop , and bursting of his close , and the heire of the lessor shal have such trees , and not the executor of the lessee , unless they be cut by the lessee , and enjoyed by the grantee , without waste . lessee for years , or for life , tenant in dower , or by the curtesie , or tenant in tayle after possibility , &c. have onely a special interest or property in the trees , being upon the ground , growing as a thing annexed unto the land , so long as they are annexed thereunto . but if the lessee , or any other sever them from the land , the property and interest of the lessee in them , is determined ; and the lessor may take them ▪ as things that are parcell of his inheritance , the interest of the lessee being determined . to accept the rent of a void lease , will not make the lease good ; but avoidable it will. if the husband and wife do purchase lands to them and the heires of the husband , and he make a lease , and die ; his wife may enter , and avoid the lease for her life , but if she die , leaving the husband , who afterward dies , before the terme ends , the lease is good to the lessee , against the heire . where it is covenanted and granted to s. i. that he shall have five acres of land in d. for years , this is a good lease , for consessit is of such force as dimisit . if a man make a lease for years , and afterwards maketh another lease for years ▪ the latter shall be a good lease for eleven years , when the first is expired . if the lessee at his cost , do put glass in the windowes , he may not take the same away again , but he shall be punished for waste ; and so of wainscot , and seeling , if it be not fixed with screwes . tenant in tayle may make a lease for such lands or inheritance , as have been commonly letten to farm ▪ if the old lease be expired , surrendered or ended , within one year after the making of the new ; but not without impeachment of waste , nor above years , or three lives , from the day of the making , reserving the old rent , or more , . h. . by indenture of lease , by tenant in tayle , for years , made according to the forme of the statute , rendring the ancient , or more rent . if the tenant in tayle die , it is a good lease against ●his issue ; but if a tenant in tayle die without issue ; the doner may avoid this lease by entrie , . h. . . and if he in the remainder , do accept the rent , it shall not tie him , for that the tayle is determined , the lease is determined , and void . ed. ● . . the husband may make such a lease of his wifes lands by indenture , in the name of the husband and wife , and she to seale thereunto , and the rent must be reserved to the husband and his wife , and to the heires of the wife , according to her estate of inheritance . a lease made by the husband alone , of the lands of his wife , is void after his death ; but the lessee shall have his corne. by the husband and wife , voidable , if it be not made as aforesaid . if a man do let lands for years , or for life , reserving a rent , and do enter into any part thereof , and take the profit thereof , the whole rent is extinguished , and shall be suspended , during his holding thereof . the aceptation of a re-demise , to begin presently , is suspension of the rent , before any entrie ; otherwise of a re-demise to begin in suturo . reservations and exceptions . there are divers words , by which a man may reserve a rent , and such like , which he had not before ▪ or to keep that which he had , as tenendum , reservandum , solvendum , saciendum , it must be out of a messuage ▪ and where a distresse may be taken ; and not out of a rent : and it must be comprehended within the purport of the same word . exceptions of part ought always to be o● such things which the grantor had in possesion at the time of the grant. the heire shall not have that which is reserved , if it be not reserved to him by special words . if a man make a feoffment of lands , and reserve any part of the profits thereof , as the grass , or the wood , that reservation is void , because it is repugnant to the feoffment . a man by a feoffment , release , confirmation , or fine , may grant all his right in the land , saving unto him his rent-charge , &c. things that are given only by taking and useing : as pasture for four bullocks , or two loads of wood , cannot be reserved but by way of indenture , and then they shall take effect by way of grant , of the grantor , during his life and no longer , without speciall words . exceptions of things , as wood , myne , quarrie , marle , or such like , if they be used , it is implied by the law that they shall be used ; and the things without which they cannot be had , is implied to be excepted , although no , &c. but otherwise , if they be not used , then the way and such like must be excepted . an assignee may be made of lands given in fee , or for life , or for years , or of a rent-charge , although no mention be made of the assignee in the grant. but otherwise it is of a promise , covenant , or grant , or warranty . if a lessee do assigne over his terme , the lessor may charge the lessee , or assigne at is pleasure . but if the lessor accept of the rent of the assignee , knowing of the assignement , he hath determined his acception , and shall not have an action of debt against the lessee , for rent due after the assignement . if after the assignement of the lessee , the lessor do grant away his reversion , the grantee may not have an action of debt against the lessee . if a lessee do assigne over his interest , and die , his executor shall not be charged for rent due after his death . if the executor of a lessee do assigne over his interest , an action of debt doth not lie against him for rent due after the assignement . if the lessor enter for a condition broken , or the lessee do surrender , or the terme end , the lessor may have an action of debt for the arrearages . a lease for years , vending rent , with a condition , that if the lessee assigneth his terme , the lessor may re-enter . the lessee assigneth , the lessor receiveth the rent of the hands of the assignee , not knowing of the assignement , it shall not exclude the lessor of his entrie . a thing in a condition may be assigned over for good cause , as just debt : as whereas a man is indebted unto me . pounds , and another do owe him . pounds , he may assigne over his obligation unto me , in satisfaction of my debt , and i may justifie the suing for the same , in the name of the other , at my own proper costs and charges . also where one hath brought an action of debt against i. n. which promiseth me , that if i will aide him against i. n. i shal be paid out of the sum , in demand i may aid him . an assignee of lands , if he be not named in the condition , yet he may pay the money to save his land. but he shall receive none , if he be not named ; the tender shall be to the executor of the feoffees . assignee shall alwayes be intended , he that hath the whole estate of the assignor , that is assignable ; a condition is not assignable , and not of an executor , or administrator : if there be such an assignee , the law will not allow an assignee in the law , if there be an assignee indeed ; so long as any part of the estate remaineth to the assignor , the tender ought to be made to him or his heires , it serveth ; yet a colourable payment to the heire , shall not veste the estate out of the assignee , as a true payment will , viz. covenant . chap. xxxvi : surrenders . a surrender is an instrument testifying with apt words , that the particular tenant of lands , or tenements for life , or years , doth sufficiently consent , that he which hath the next immediate remainder , or reversion thereof , shall also have the particular estate of the same in possession ; and that he yeildeth , or giveth the same to him for ever ; surrender ought forthwith to give a present possession of the thing surrendred unto him which hath such an estate , where it may be drowned . a joynt-tenant cannot surrender to his fellow . estating of things that may not be granted without a deed , may be determined by the surrender of the deed to the tenant of the land. lease for years cannot surrender before his term begin ; he may grant , he cannot surrender part of his lease . surrenders are in two manners ; in deed. in law. a surrender in law , is when the lessee for years , doth take a new lease for more years . a surrender in deed , must have sufficient words to prove the assent , and will of the surrenderer to surrender ; and that the other do also thereunto agree . the husband may surrender his wifes dower for his life , and her lease for ever . by deed indented , a man may surrender upon condition . chap. xxxvii . releases . a release is the giving or discharging of a right , or action which a man hath or claimeth against another , or out of , or in his lands . a release or confirmation made by him that at the time of the making thereof had no right , is void ; if a right come to him afterwards , unless it be with warranty , and then it shall barr him of all right that shall come to him after the warranty made . release , or confirmation made to him that at the time of the release , or confirmation made , had nothing in the lands , is void , it behoveth him to have a free-hold or a possession and privitie . a release made to a lessee for years , before his entrie , is void . a man may not release upon a condition , nor for a time , nor for part ; but either the condition is void , and the time is void , and the release shall enure to the partie to whom it is made for ever , for the whole , by way of extinguishment : but a man may deliver a release to another , as an escrowe , to deliver to i. s. as his act and deed if i. s. do perform such a thing , or release upon a condition by deed indented , may be good . a joynt-tenant or a rent-charge , may release , yet all the rent is not extinct , nor yet if he purchase the lands , his fellow shall have the rent still . if the grantee release parcell of a rent-charge to the grantor , yet all the rent is not extinct . a release to charge an estate , ought to have these words , heires , or words to shew what estate he shall have . a release made to him that hath a reversion , or a remainder in deed , shall serve and help him that hath the frank-tenement ; so shall a release made to a tenane for life , or a tenant in tayle , inure to him in the reversion , or remainder , if they may shew it , and so to trespassors and feoffees , but not to disseisors . a release of all manner of actions doth not take away an entrie , nor the taking of ones goods againe , nor is any plea against an executor . a release of all demands , extinguisheth all actions reall and personall , appeales , executions , rent-charge , common of pasture , rent-service , and all right , and seizure , and all right in lands , and propertie in chattels : but not a possibility , or future duty , as a rent payable after my death , and such like . chap. xxxviii . confirmation . confirmation , is when one ratifieth the possession , as by deed to make his passession perfect ; or to discharge his estate , that may be defeated by another entrie . as if a tenant for life , will grant a rent-charge in fee , then he in the reversion may confirme the same grant. whereas a man by his entrie , may defeat an estate ; there by his deed of confirmation , he may make the estate good . a confirmation cannot charge an estate that is determined by express condition , or limitation ; to confirm an estate for an houre , if it be for tenant for life , it is good for life ; if to tenant in fee , for ever . a lease for years may be confirmed for a time , or upon condition , or for a piece of the land ; but if a frank-tenement be , it shall enure to the whole absolutely . a confirmation to charge an estate , must have words to shew what estate he shall have . to confirm the estate of tenant for life , to his heires , cannot be but by habendum , the land to him and his heires : and therefore it is good to have such a habendum in all confirmations . in a confirmation , new service may not be reserved , old may be abridged . a confirmation made to one disseizor , shall be voidable to the other , so shal not a release . chap. xxxix . condition . there are two manner of conditions , one expressed by words , another implyed by the law ; the one called a condition in deed , the other , a condition in law. estate made , and the condition against the law , the estate 's good , the condition's void . if the estate beginneth by the condition , then both are void . bonds with conditions expresly against the law , are void . conditions repugnant , the estate good , the condition void . conditions impossible , are void , the estate good ; it shall not enlarge any estate . by pleading , a man may not defeat an estate of frank-tenement , by force of a condition in deed ; without he shew the condition of record , or in writing sealed ; yet the jurie may help a man , where the judges will take their verdict at large : of chatttels he may . promise doth make a condition ; but when it doth depend upon another sentence , or hath reference to another part of the deed , it maketh no condition , but a qualification , or limitation of the sentence , or of that part of the deed , as provided , that the person of the grantee shall not be charged . he which hath interest in a condition , may fulfill the same for safeguard of himself . between the parties , it is not requisite the condition be performed in every thing if the other do agree , but to a stranger it must . if the obligee be partie to any act. by which the condition cannot be performed ; then the obligor shall be discharged ; so he shall be by the act of the condition . where the first act in the condition is to be performed by the obligee , and he will not do it , there the obligation is not forfeited . where no time is set , if the condition be for the good of a stranger , or of the obligee , then it is to be performed within convenient time , if for the good of the obligor at any time during their lives ; immediately , shall not have such a strict construction ; but that it shall suffice , if it be done in convenient time . if a man be bound to pay money , or farm rent , he must seek the parties . but if he be bound to perform all payments : if he render his farm on the land , it sufficeth . if the feoffee , or feoffor die before the day of payment , the tender shall be to the executor , although the heire of the feoffee do enter , if the heire be not named , vide , assignee in assignement . the money must be tendred so long before sun-set , that the receiver may see to tell it . to pay part of a sum at the day , cannot be satisfaction for the whole sum , as a horse or a robe is . but before the day , or at another place , at the day of the request , and acceptance of the obligee , is full satisfaction . an acquittance is a good barr , if nothing be paid . in all cases of conditions , a payment of a certain sum in gross , touching lands , or tenements , if lawfull tender be once refused , he which made the tender is discharged forever . and the manner of the tender , and payment shall be directed by him that made it , and not by him that did accept it , as that he paid the sum in full satisfaction , and that he accepted thereof in full satsfaction . an acquittance is a good bar , &c. where a man is bound to pay money , to make a feoffment , or renounce an office , or the like , and no time is limited when the shall do it , then upon request , he is bound to perform it , in so short a time as he may . bu● where the time is limited , if he doe refuse before the day it is no matter , if he be readie to perform it at the day . where a covenant or condition is to marry or enfeoff a stranger by such a day ; the refusall of the stranger is no plea , as that of the obligee is ; the obligee is to be ready on the land , at his own perill ; a stranger must be requested : if he refuse , the obligation is forfeited , wherefore it is good to have these words , if the stranger do there unto assent . entrie . the determination of an estate is not effected before entrie . when any person will enter for a condition broken , he must be seized on the same course and manner he was when he departed from his possession . it behoveth such persons as will re-enter upon their tenants to make a demand of the rent . if the lessor demand before he die , his heire may enter . if the lessor distrain , he may not re-enter . the lessor may accept of the rent , and yet re-enter : but if he receive the next rent he may not , for that establisheth the lease . entry into one acre in the name of more , is good ; it doth not extend into two counties . by the entry of the husband , the francktenement shall be in the wife , and so of such like . in gavill-kind land , the eldest son only shall enter for the breach of a condition . demand . the land is the place where the rent is to be paid and demanded , if there be no other place appointed . and there the lessor himself , or his sufficient attorney , a little before sun set , in the presence of two or three sufficient witnesses , shall say , here i demand of i. b. . l. due to me at the feast of , &c. for a messuage , &c. which he holdeth of me in lease by indenture , &c. and there remain ; the last day the rent is due to be paid until it be dark , that he cannot see to tell the money . chap. xi . warranties . there are three manner of warranties . lineall . collaterall . by discent . vvarranty lineall , is where a man by his deed bindeth him and his heires to warranty , and dieth , and the warranty doth discend to his issue . warrantie collaterall is in another line , so that he to whom it diseendeth , cannot convey the title that he hath in the testaments by him that made warranty . warranty by disseizin , is where he which hath no right to enter , entreth , and maketh a warranty : this is by disseisin , and barreth not . line all warranty barreth him that claimeth fee ; and also fee-taile with assets in fee ; if he sell , his son may have a formedon . collaterall warranty is a barr to both , except in some cases that be remedied by statute , as warranty by tenement , by the curtesie , except he hath enough by discent , by the same tenement . tenant , in dower , for life , not remedied , but do barre the heire , and him in reversion . awarranty diseendeth alwaies to the heir at the common law , viz the eldest son , and followeth the estate , and if the estate may be defeated , the warranty may also . it barreth not the second son in gavill-kind , although all the sons shall be vouched , and not the eldest alone . yet he only shall be barred . to plead a warranty against him that made it , or his heires , is called a rebutter . where fee , or frank-tenement is warranted , the party shall have no advantage , if he be not tenant . where a lease for years is warranted , it shall be taken by way of covenant , and good , if he be outed . the feoffor by the words dedi & concessi , shall be bound to warranty , during his own life . chap. xli . covenants . covenants are of two sorts ; expressed by words in the deed , or implyed by the law. a covenant in deed , is an agreement made by the deed in writing , between two persons to performe some things , and sealed : for no writ of covenant is maintainable without such a specialty , but in london , &c. when a covenant doth extend to a thing in being parcell of the demise , or thing to be done by force of the covenant is quodamodo , annexed , or appertaining to the thing demised , and goeth with the land , it shall bind the assignee , if he be not named : as to repair the houses , it shall bind all that shall come to the same by the act of the law , or by the act of the party . but if the covenant do concern the land , or thing demised in some sort , the assignee shall not be charged , although he be named ; as to make a wall at anothers bodies house , or to pay a sum of money to the lessor , or to a stranger , but the lessee his executors and administrators shall be charged . if the covenant do extend to a thing that had no being , but to be made new upon the land , it should binde the assignee , if he be named , because he shall have the benefit of it . if a man make a lease for years , and the lessee covenanteth and granteth to pay , &c. to the lessor his heirs and assignes , yearly during , &c. ten pound , his executors shall have it . a covenant in law , upon a demise , or grant , the assignee in deed , or in law may have a writ of covenant . an obligation to perform all covenants and grants is forfeit on the breach of a covenant in law . a covenant in law is not broken but by an elder title . a covenant in law may be qualified by the mutual consent of the parties . chap. xlii . how chattels personal may be bargained , sold , exchanged , lent , and restored . acontract is properly where a man for his mony shall have by the assent of another , certain goods , or some other profit at the time of the contract , or after . in all bargaines , sales , contracts , promises , and agreements , there must be quid pro quo , presently , except day be given expresly for the payment , or else it is nothing but communication . if a man do agree for a price of wares , he may not carry them away before he hath paid for them , if he have not day expresly given him to pay for them . but the merchant shall retain the wares until he be paid for them , and if the other take them , the merchant may have an action of trespass , or an action of debt for the money at his choice . if the bargain be that you shall give me ten pound for my horse , and you do give me a penny in earnest , which i do accept : this is a perfect bargain , you shall have the horse by an action of the case , and i shall have the money by an action of debt . if i say the price of a cow is four pounds , and you say you will give me four pounds , and doe not pay me presently , you may not have her afterwards , except i will ; for it is no contract . but if you goe presently to telling of your money , if i sell her to another , you shal have your action of the case against me . if i buy one hundred loads of wood to be taken in such a wood at the appointment of the vendor , if he upon request will not assigne them unto me . i may take them , or i may sell them : but if a stranger doe cut down any part of the trees , i may not take them ; but i may supply my grantee of the residue , or have my action of the case . if the bargain be , that i shall give you ten pounds for such a wood , if i like it upon the view thereof , this is a bargaine at my pleasure vpon my view ; and if the day be agreed upon , if i disagree before the day , if i agree at the day the bargain is perfect , although afterwards i do disagree . but i may not cut the wood before i have paid for it ; if i do , an action of trespasse will lie against me , and if you sell it to another , an action of trespass on the case will lie against you . if i sell my horse for money , i may keep him untill i am paid , but i cannot have an action of debt untill he be delivered , yet the property of the horse is by the bargain in the bargainer , or buyer ; but if he do presently tender me my money , and i do refuse it , he may take the horse , or have an action of detainment . and if the horse die in my stable between the bargain and the delivery , i may have an action of debt for my money , because by the bargain the property was in the buyer . if a deed be made of goods and chattels , and delivered to the use of the donee , the property of the goods and chattels are in the donee presently : before any entry , or agreement , the donee may refuse them if he will. if i take a horse of another mans , and sell him ; and the owner take him again : i may have an action of debt for the money , for the bargain was perfect by the delivery of the horse , & caveat emptor . every contract importeth in it self an assumption : for when one doth agree to pay money , or deliver a thing upon consideration , he doth as it were , assume and promise to pay and deliver the same , and therefore when one selleth any goods to another , and agreeth to deliver them at a day to come : and the other in consideration thereof , agreeth to pay so much money on the delivery , or after , in this case , he may have an action of debt , or an action on the case upon the assumption . the duty to resign an action personal , may not be apportioned ; as if i sell my horse , and another mans for ten pounds , who taketh his horse againe , i shall have all the money . if a man retained a servant for . l. per annum , and he depart within the year , he can have no wages : if it were to be paid at two feasts , and the man after the first feast die , he shall have wages but for the first feast ; therefore men take order for it in their wils . by a contract made in a faire or market , the property is altered ; except it be to the king ; so that the buyer know not of the former property , and doe pay tole , and enter it ; and those things as thereupon ought to be done , it must be on the market , and at the place where such things are usually sold , as place at the goldsmiths stall , and not in his inner shop . in exchange of a horse for a horse , or such like , the bargaine is good without giving of day , or delivery . if a thing be promised by way of recompence for a thing that is past ; it is rather an accord than a contract ; & upon an accord , there lieth no account , but he unto whom the promise is made , may have charge , by reason of the promise , which he hath also performed ; then he shall have an account for the thing promised , though he that made the promise have no profit thereby ; as if a man say to another man , heal such a poor man , or make such a high-way , &c. the intent of the party shall be taken according to the law , as if a man retain a servant , and do not say one year , or how long he shall serve him , it shall be taken for one a yeer , according to the statute . in all contracts he that speaketh obscurely , or ambiguously is said to speak at his own peril , and such speeches are to be taken strongly against himself . chap. xliii . of lending and restoring . if mony , corn , wine , or such other things , which cannot be redelivered , be occupied or borrowed , if it perish , it is at the peril of the borrower . but if a horse , or a cart , or such other things , as may be used , and delivered again , be used in such manner as they were lent , if they perish , he that oweth them shall bear the loss , if they perish not through the default of him that did borrow them , or that he did make a promise at the time of delivery , to redeliver them safe againe . if they be occupied in any other wise then according to the lending , in what wise soever it perish ; if it be not in default of the owner , he that did borrow them , shall be charged with them in law and conscience . if a man have goods to keep to a certain day , he shall be charged , or not charged after as default or defaults is in him . but if he have any thing for keeping them safe , or make promise to redeliver them , he shall be charged with all chances that may fall because of his promise . if a man finde goods of another mans , if they be hurt or lost by the negligence of him that found them he shall be charged to the owner . if a common carrier go by waies that be dangerous for robbing , and will drive by night , or other unfit times , and is robbed ; or if he do overcharge his horse , or driveth so that his stuff fall into the water , or otherwise be hurt by his default , he shall be charged by his default . and if a carrier would percase refuse to carry , unless a promise were to him , that he shall not be charged with any such misdemeanour , that promise were void . every inholder is bound by the law , bona & cattalla of his guest to keep in safety , so long as it is within the inn , if the guest did not deliver them unto him , nor acquaint him with them . he shall not be charged if the servant or companion of the guest do imbezel them ; or if the guest do leave them in the outward court. the offler shall not answer for the horse that is put to pasture at the request of the guest : but if he do it of his own head , he shal . if any man offer to take away my goods , i may lay my hands upon them , and rather beat him , then suffer him to take or carry them away . chap. xliv . how far other mens contracts and misdemeanours do binde us . a man shall be bound by many trespasses of his wife , but not to sustain corporal punishment for it . for murder , fellony , battery , trespass , borrowing or receiving of money in his masters name , by a servant , the master shall not be charged unless it be done by his command , or came to his use by his assent . if i command one to do a trespass , i shall be a trespassor , or otherwise if i do but consent : there is no accessary in trespass . we shall be charged if any of our family lay or cast any thing into the high way , to the noisance of his majesties liege people . every man is bound to make recompence , for such hurt as his beasts shall doe in the corne or grass of his neighbour , though he knew not that they were there ; and for his dogs , beares , &c. if they hurt the goods or chattell of any other ; for that he is to govern them . a man shall not be charged by the contract of his wife or his servant , if the thing come to his use , having no notice of it : but if he command them to buy , he shal be charged though they come not to his use ; or had notice therof . if a wife or servant use to buy or sell , if he sell his masters horse , and exchange his oxe for wheat that cometh to his masters use , his master may not have an action of trespass for it , but he shall be charged for the corn , and the other need not to shew that he had warrant to buy for him . if a man-servant that keepeth his shop , or that useth to sell for him , shall give away his goods , he shall have trespass against the donee . but if i deliver my goods to another to keep to my use , and he do give them away , i shall not : for the donee had notice whose goods they were , as in the case of the servant . if a man make another his general receiver , which receiveth money , and maketh an acquittance , and payeth not his master ; yet that payment dischargeth the debtor . if a servant keep his masters fire negligently , an action lieth against the master : otherwise if he bear it negligently in the street . if i command my servant to distrain , and he doth ride on the distress ; he shall be punished , not i. if a man command his servant to sell a thing that is defective , generally to whom he can sell it ; deceit lieth not against him : otherwise if he bid him sell it to such a man , it doth . a contract or a promise made to the wife is good , when the husband doth agree , so it is to a servant ; and it shall be said to be made to the husband and master himself . if a man taketh a wife that is in debt , he shall be charged with her debts , during her life ; if she die , he shall be discharged . chap. xlv . wills and testaments . having hitherto treated of such contracts as de take effect in the life time of the parties , with their differences , it is now to deale with instruments which take effect after their deaths ; that those things which they have preserved with care , and gotten with paines in their life , might be left to their posterity in peace and quietnesse after their death : of which sort are last wils and testaments . there are two sorts of wils ; written and nuncupative . anuncupative testament is when the testator doth by word onely without writing declare his will , before a sufficient number of witnesses , of his chattels onely : for lands passe not but by writing ; it may for the better continuance after the making , be put in writing , and proved : but it is still a testament nuncupative . a written testament is that , which at the very time of the making thereof is put in writing ; by which kind of testament in writing , only lands and testaments pass , and not by word of mouth only . two things are required to the perfection of a will , by which lands pass , viz. first writing , which is the beginning . secondly , the death of the devisor , which is the finishing . in a will of goods , there must be an executor named ; otherwise of lands . a man may make one executor or more simply , or conditionally for a time , or for parcel of his chattels . if no executor be named , then it still retaineth the name of last a will , and shall be annexed to the letters of administration in regard of the gift . gavil kinde lands may be devised by custome . lands bolden in socage tenure all is devisable knights service parts in writing . fear , fraud , and flattery , three unfit accidents to be at the making of a will. a woman may make a will of the goods of her husband , by his consent and license ; by word is sufficient , and of the goods she hath as executor , without his consent ; but she cannot give them unto him . a boy after his age of fourteen , and a maid after her age of twelve may make a will of their goods and chattels by the civil law. the will of the donor shall be alwayes observed , if it be not impossible , or greatly contrary to the law. a devisor is intended inops consilii , and the law shall be his counsell , and according to his intent appearing in his will , shall supply the defect of his words . a prerogative will is five pound in another diocess . a man may not traverse the probate of a testament , or letters of administration directly , but he may say against the testament that the testator never made the party his executor . chap. xlvi . devises . a devise ought to be good and effectual at the time of the death of the devisor . the devisee may not enter into the terme , or take a chattell , but by the delivery of the executor . but he may sue for it in court christian . into frank-tenement , or inheritance he may enter . devisees are purchasees , as if a lease for years be willed to a man and his heires , the heire shall have it ; for heire is a name of purchase here . a reversion of lands or tenements will pass by the name of lands and tenements in a devise . if a man devise all his lands and tenements ; a lease for years doth not pass , where he hath lands in fee , and also a lease there ; otherwise it will. if a man devise all his goods , a rent-charge which he had for years will pass , and all other his personall chattells . and if a man give all his moveables to one , he shall have all his horses , cattell , pans , and personall chattells ; and all his immoveables to another , he shall have all his corn growing , and fruit on his trees , and the chattells reall . a man may devise lands or goods to an infant in the mothers belly , or goods to the church-wardens of d. there is great diversity where the property is devised , and when the occupation is devised : a man may devise that a man shall have the occupation of his plate , or other chattells during his life , or for years , and if he die within the term , that it shall remain to m. a. and it is good , for the first hath but the occupation , and the other after him shall have the property . but if a chattell be given to one for life , the remainder to another , the remainder is voyd . for a grant or devise of a chattel for an houre , is good for ever ; and the devisee may dispose of it ; but if he do not , the other shall have it . a man may devise his lands he holdeth in lease , but not his lease , under this condition ; provided , that if the devisee die within the term then he shall have it . if a man will his goods to his wife , and that after her decease , his son and heir shall have the house wherein they are ; she shall have the house for term of her life , yet it is not devised unto her by express words . but it doth appear that his intent was so by the words . if a man willeth his lands to his wife , til his son commeth to the age of yeers , and the woman taketh another husband , and dyeth , the husband shall have the interest . by a devise a man may have the fee-simple without express words of heirs , as if lands be willed to a man for ever , or to have and to hold to him and to his assignes , &c. by will , lands may be intailed without the word , body : as if lands be given to a man , and to his heirs male , it doth make an estate tail . if a man will that his executors shall sell his lands , the inheritance doth descend to the heir ; yet the executors may enter , and enfeoffe the vendee . but if lands be given to the executor to sell , and they receive the profits thereof to their own use , and do not sell the same in reasonable time , the heir may enter . an executor may sell , if the other will not . if lands be recover'd against tenant for life or for years , by an action of waste , or former title , he may not give his corn. if the cognizee have sown the lands , and the cognizor bring a scire : he may give the corn sown . if a man devise omnia bona & cattalla , hawks nor hounds do not pass , nor the deer in the park , nor the fish in the ponds . chap. xlvii . executors . an executor is he that is named and appointed by the testator , to be his successor in his stead to enter , and to have his goods and chattels , to use actions against his debtors , and legacies , so far as his goods and chattels will extend . where two executors are made , and one doth prove the will , and the other doth refuse , notwithstanding he that refuseth may administer at his pleasure , and the other must name him in every action , for every duty due to the testator , and his release shall be a good barr : if he do survive he may administer , and not the executor of him that died ; but otherwise if all had refused . if one prove the will in the name of both , he that doth not administer shall not be charged . if the executor do once any action that is proper to an executor , as to receive the testators debts , or to give acquittance for the same , &c. he may not refuse . but other acts of charity or humanity , he may do ; as to dispose of the testators goods about the funerall , to feed his cattell least they perish , or to keep his goods least they be stoln , these things may every one do , without danger . when executors do bring an action , it shal be in all their names , aswell of them that do refuse , as of other , but an action must be brought against him that doth administer only , and he which first cometh shall first answer . an executor of an executor , is executor to the first testator . and shall have an action of debt , accompt , &c. or trespass , as of the goods of the first testator carried away , and execution of statutes and recognizances , &c. st. . ed. . the title and interest of an executor , is by the testament , and not by the probate , but without shewing it , they may release the probate . the justices wil not allow them tosue actions . the executor shall have the wardship of the body and lands of the ward in knights service , but not in soccage , and leases for years , and rent charges for years , statutes , recognizances , bonds , lands in executions ; corn upon the ground , gold , silver , plate , jewels , money , debts , cattell , and all other goods and chattells of the testator , if they be not devised , and may devise them ; but if he do will omnia bona & cattallasua , the goods of the testator pass not , neither shall they be forfeited by the executor . an executor is chargeable for all duties of the testator that are certain ; but not for trespass , nor for receipt of rents , nor for occupation of lands , as bailiffe or guardian in soccage , &c. for this is not any duty certain so farr as he shall have assets ; if the executor do waste the goods of the testator , he shall pay them of his own . an executor shall not be charged , but with such goods as come to his hands , but if a stranger take them out of his possession , they are assets in his hands . if an executor take goods of another mans amongst the goods of the testator , he shall be excused of the taking in trespass . duties by matter of record shal be satisfied before duties by specialty , and duties by specialty before charges , and legacies before other duties . an executor may pay a debt or credit of some kind , depending the writ , before notice of the action , but not after notice or issue joyned . an executor may pay debts with his own money , and retain so much of the testators goods , but not lands appointed to be sold . any of these words , debere , solvere , recipere , borrowed , or any word that will prove a man a debtor or to have the money ; if it be by bill will charge the executor , or administrator , but not the heir , if he be not named . chap. xlviii . adninistrators . an administrator , is he to whom the ordinary of the place where the intestate dwelt , committeth the testators goods , chattel , credits , and rights . for wheresoever a man dieth intestate , either for that he was so negligent he made no testament , or made such an executor as refused to prove it , or otherwise is of no force ; the ordinary may commit the administration of his goods to the widow , or next of kin , or to both , which he pleaseth , making request ; and revoke it again at his pleasure . the ordinary may assigne also a tutor to the intestates children , to his sonnes untill twelve year . but so that it be not a prejudice to him that is the guardian ; and after those years , he or she may respectively choose their own curators , and the guardian may confirm them , if there be not good order taken by their fathers will. as if such a tutor die , the infant cannot have an action of account against his executor . the power and charge of an administrator is equall in every point to the power and charge of an executor : a man may have an action of the case against the executor or administrator upon the assumption of the testator , upon good consideration , or debt for labourers wages , by the statute . and if a man make an infant his executor , the ordinary may commit the execution of the will to the tutor of the child , to the childs behoof , until he be of the age of . years , and if he be granted for longer time , it is void . an administrator dur ante minoritate , may do nothing to the prejudice of the infant , he may not sell any of the goods of the deceased unless it be upon necessity , as for the payment of debts , or that they would perish ; nor let a lease for a longer time , then whilst he is executor . an infant upon the true payment of a debt due to the testator , may make an acquittance , and it shall be good . for a child may better his estate but not make it worse . chap. xlix . heir . if a man die seised of any lands , and do not dispose of them by his will they do descend to his heir , as aforesaid . and he shall have not onely the glass , and wainscot , but any other of such like things affixed to the free-hold , or ground ; as tables , dormant , furnances , fat 's in the brew-house , or dye-house ; and the box or chest wherein the evidences are ; the hawks and the hounds , the doves in the dove-house , the fish in the pond , and the deer in the parke , and such like . he shall be charged by specialty , for the debts of his ancestour , so long as he hath assets , if the executor or administrator have not sufficient . no law nor statute doth charge the heir for the wrong , or trespass of his father , but by express words . widow . the widow shall have all her apparell , her bed , her copher , her chains , borders , and jewels , by the honorable custome of the realm , except her husband unkindly give any of them away ; or be in debt , that it cannot be paid without her bed , &c. yet she shal have her necessary apparell . what things are arbitrable , and what not . things , and actions personall incertaine are arbitrable , as trespasse , taking away of a ward , &c. but things certain are not arbitrable , but when the submission is by specialty , if they be not joyned with others incertain , as debt with trespass , &c. matters concerning the common-wealth ; some are not arbitrable as criminall offences ▪ felonies and such like , concerning the crime . in the submission , three things are to be regarded . first , that it be made in writing with the parties covenants , or bonds subsequent and sufficient to binde them , their heires , executors , and assignes to performe the award , which shal be thereupon made , that both the arbitrators may know their power , and the parties revoke not their power . for all is void that is not contained in the submission , or necessarily depending thereupon ; and the arbitrators labour lost , if they want means to compell the same to be executed . secondly , that there be power given to them sufficient to do all things necessary for the ordering of the controversies , as to appoint times and places for their meetings , to examine and decide the matters committed , and to bring their parties with their proofs , evidences , and witnesses thither together before them , and to punish the place defective , and to expound and correct such doubtfull sentences , and questions , as may arise upon their award , afterwards inconvenient to either parties , contrary to equity , and the arbitrators good meaning ; which inconveniencies not before by them seene , at the making of the award , tempor is filia veritas . thirdly , convenient time and place are to be limitted for the yeelding up their award to the parties , or to their assignes . six things to be regarded in an arbitrement . . that it be made according to the very submission , touching the things committed , and every other circumstance , that it be a finall end of all controversies committed . that it appoint either partie to give or doe unto the other something beneficiall in appearance at least . that the performance be honest and possible . that there be a mean how either part by the law may attain unto that which is thereby awarded unto him . that every partie have a part of the award delivered unto him . for if it faile in any of these points , then is the whole arbitrament voyde , and of none effect : examples there of . an award that the parties shall obey the arbitrament of a. m. is void , for power may not be assigned . an award that any of the parties shall be bound , or do any other act by the advice of the arbitrator , is not good except it be in the submission so , but that the parties shall be bound , or make assurance by the advise of counsel , is good . an award , that the parties shall be non-suited , is not good , because it is no final end , for the party may begin again : that the party do withdraw his sute , is good . if the submission be of divers things , and the award onely of some of them , yet is the award good for that part , as if the submission be of all actions real and personal onely , or if it be onely , de possessione . if to submit themselves to the arbitrament of all trespasses , and it is awarded that the one shall make amends to the other , and nothing is awarded for the others benefit ; this award is void . so it were if one of them should go quite against the other , if the submission were not by bond , for an award must be final , obligatory , and satisfactory to both parties . an award , that either party shall release to the other all actions , and that because the one hath trespassed more then the other , he shall pay to the other first , is good . in debt or trespass of goods taken , that the defendant shall retain part , and the plaintiffe to have the rest , is not good . an award , that one of the parties shall do an act to any stranger , the act is void , if the parties be not bound . or if it be that he shall cause a stranger to enfeoffe , or be bound to the other partie , because he hath no means to compel the stranger . an award is void , if it be neither executed , nor any means by law for the execution thereof , as if it should be awarded that one should pay the other pounds , this is good , for he may recover the same by an action of debt . but if it were awarded , the one should deliver to the other an acre of land , or do such like act executory , it were void , if it be not delivered straight-way , or provision made by bond , or otherwise to compel the payment thereof , according to the award , if the submission be not by specialty . indentures of arbitrament must be made of so many parts , that every person may have a part . arbitramentum aequum tribuit cuique suum . an award is commonly made by lay-men , and shall be taken according to their intent , and not in so precise a form as grants , or pleadings , but as verdicts , yet the substance of the matter ought to appear either by express words , or by words equivalent , or by those that do amount thereunto . but it were good that awards were drawn up by some that is skilful , for the avoiding of controversies , which otherwise may arise about the same . agreement . an agreement is made between the parties themselvs ; there must be a satisfaction made to either party presently , or remedy for the recompence , or else it is but an indeavour to agree . tender of money without payment , or agreement to pay money at a day to come , is not any satisfaction before the day be come , and the money be paid ; it cannot be pleaded in bar , in an action of trespass . for that as the other partie hath no meanes to compell the other to pay the money : so he may refuse it at the day , if he will , otherwise in an arbitrament ; but money paid at a day , before the action brought , is a good plea. finis . a treatise of particular estates . written by sir john doddridge knight . london , printed , anno. dom. . a treatise of particular estates . particular estates . a particular estate is such , as is derived from a general estate , by separation of one from the other ; as if a man seised in fee simple of lands , or tenements , doth thereof cheat by gift or grant an ●state tayle , or by demise a lease for life , or ●…y estate for years , these are in the donee , or ●easee . particular estates in possession derived ●nd separated from the fee simple , in the de●…nor , or leasor in reversion . also if lands be demised to a. for life , the remainder to b. and the heires of his body , the remainder to c. and his heires , the estate for life limited to a. the estate tayle limited to b. are particular estates derived ut supra , and separated in interest from the fee simple ; the remainder given to c. albeit the same remainder doth depend upon those particular estates . and of particular estates , some are created by agreement between the parties ; and the particular estates before specified : and some by act of law ; as the state in tayle apres possibility de issue extinct , estates by the courtesie of england , dower and wardship for albeit an estate in dower , be not compleat untill it be assigned , which oftentime is done by assent and agreement between parties ; yet because the partie that so assigneth the same , is compellable so to do by cours● of law , that estate is also said to be create by law ; also an estate at will is a kinde of particular estate , but yet not such as maket● any division of the estate of the lessor , is seised , for notwithstanding such an estate , the lessor is seized of the land in this deme●…sure as for fee in possession , and not in reversion . also an estate at will is not such particular estate , whereupon a remainder may depend ; but of all the estates before mentioned , many fruitfull rules , and observations , are both generally , and particularly so lively set forth by the said mr. littleton in the , , , , , , , and . chapters of his first book , which is extant as wel in english as in french , whereunto i referr you . possession . it is further to be observed , that all estates that have their being , are in possession , reversion , remainder , or in right , but of all these , possession is the principall : there are two degrees of the first , and chiefest possession , in fait poss , in law or deed , is such as is before spoken of : and that is most proper to an estate , which is present and immediate ; but yet such possession of the immediate estate , if it be not greater then a tearm doth operate and enure to make the like possession of the free-hold , or reversion ; when a man is said to have a tearm , it is to be intended for years , when it is said , a man to have the fee of lands , it is also to be intended a fee simple ; possession is that possession , which the law it self casteth upon a man before any entry , or pernancy of the profits : as if there be father and son , and the father dieth seised of lands in fee , and the same do descend to the sonne , as his next heire in this case , before any entry , the same hath a possession in law ; so it is also of a reversion exportant , or a remainder dependant upon particular estate , or life ; in which case , if tenant for life die , he in reversion , or remainder , before his entry , hath only possession in law. all manner of possessions that are not possessions in fait , are only possessions in law ; and it is to be observed then , if a man have a greater estate in lands then for years , the proper phrase of speech is , that he is thereof seised ; but if it be for years only , then he is thereof possessed : but yet nevertheless the substantive ( possession ) is proper as well to the one as to the other . reversion . a reversion is properly an estate which the law reserveth to the donor , grantor , or lessor , or such like , which he doth dispose parcel of his estate , when he doth dispose less estate in law then that whereof he was seised , at the time of such disposition : as if a man seised of lands in fee , doth give the same to another ; and the heires of his body , or if he doth dismiss the same for life or years ; in these cases the same reserveth the reversion thereof in fee , to the donor , or lessor , and his heires ; because he departed not with his whole estate , but onely with a particular estate , which is less then his estate in fee ; and such reversion is said to be expectance upon the particular estate . also if he that is but tenant for life , for land , and doth by deed or paroll , give the same s. in tayle , or for tearm of his life , which is a greater estate then he may lawfully dispose ; in this case the law reserveth a reversion in fee , in such donor , though he were formerly but tenant for life : and the reason thereof is , for that by such unlawfull disposition , which by deed or word , cannot be without livery and seisin , he doth by wrong pluck out the rightfull state in fee , from him that was thereof formerly seised in reversion or remainder , and thereof by a priority of time , gained in an instance , he was seised of a fee simple , at the time of the executon thereof . but if a man seised of lands in fee simple , giveth the same to a. and his heirs , until b. do die without heire of his body ; in this case the law reserveth no reversion in the donor , because the state is disposed to a. is a fee simple , determinable , is in nature so great as the state , which the donor had at the time of such gift , and consequently he departed thereby with al his state , and therby an apparent difference is between a gift made to a. and the heires of his own body , and a gift made to him and his heires , until b. die without heire of his body : for in the one case the donor hath but an estate tayle , and in the other a fee simple determinable , hath a possibility of revertor : for if b. die without heire of his body , then whether a. be living or dead , shall revert to the donor , but such possibility of reversion , for he that hath but such a possibility , hath no estate , nor hath he power to give his possibility ; but in the other case , the donor hath estate in fee ; and therefore he hath power to dispose thereof at his pleasure . remainder . a remainder is a remnant of an estate disposed to another at the time of creation of such particular estates , whereupon it doth depend , as if s. seised of lands in fee , demiseth the same to b. for life , the remainder to c. and the heirs of his body , the remainder to d. and his heirs ; in this case i. s. hath a particular estate of the lessor , is then also disposed to c. and d. ut supra , whereby b. hath an estate for life , c. a remainder in tail , and d. a remainder in fee , depending in order upon the particular estate in possession ; and in every remainder five things are requisite . first , that it depend upon some particular estate . secondly , that it pass out of the grantor , donor , or lessor , at the time of the creation of the particular estate , whereon it must depend . thirdly , that it veste during the particular estate , or at the instant time of the determination thereof . fourthly , that when the particular estate is created , there be a remnant of an estate left to the donor , to be given by way of remainder . fifthly , that the person or body to whom the remainder is limitted , be either capable at the time of limitation thereof , or else in potentia propinqua , to be thereof capable , during the particular estate ; if lands be given to i. s. and his heirs , the remainder for default of such heir to i. d. and his heirs , that remainder is void , because it doth not depend upon any particular estate ; but if lands be given to i. d. the life of i. d. the remainder to i. b. his remainder is good , for it is not limited to depend upon a fee-simple , but upon a particular estate ; which is onely called an estate for life of i. b. descendable : if lands be given to b. for . years , if c. do so long live , the remainder , after the death of c. to d. in fee , this remainder is void , for in this case it cannot pass out of the lessor at the time of the creation of the particular estate for years : but if a lease be made to b. for life , the remainder to the heires of c. ( who is then living ) this remainder is good , upon a contingency , that if c. dye in the life of b. for that remainder may well pass out of the leassor presently without be yaunce , without any inconveniency , because onely the inheritance separated from the free-hold , is in abeyance : if lands be given for life , with a remainder to the right heirs of i. s. and the tenant for life dyeth in the life of i. s. this remainder is void , because it died not vest or settled , either during the particular estate , or at the time of the determination thereof , for until , i. s. die , no person is thereof capable , by the name of the heir . but if lands be given to i. s. for terme of his life , the remainder to his right heir , ( in the singular number ) and the heirs of his body , and after i. s. hath issue a son and dyeth , that is a good remainder , and the son hath thereby an estate tail , for although it were unpossible that such remainder should vest during the particular estate ; because during his life , none could be his heir ; yet it might be and did vest at the instant of his death , which was at the time of his determination of the particular estate . concerning the fourth thing , if a man seised of lands in fee , granteth out of the same a rent , or common to pasture , or such like things , which before the grant had no being , to i. s. for terme of life , the remainder to i. d. , in fee , this remainder is void , because of this thing granted , there was no remnant in the grant to dispose . and because some heretofore have been of opinion , that albeit the same cannot take no effect , as another grant of a new rent or common . vtres magis valeat quam operat . this is a rule in law , that a thing enjoyed in a superior degree , shall not pass under the name of a thing , in any inferior degree ; and therefore if lands be given unto two persons , and unto the heirs of one of them , unto the husband and wife , and heir of the husband ; and he that hath the estate of inheritance , granteth the version of the same land to another in fee , such grant is void , because the grantor was thereof seised in a superiour degree , viz. in possession , and not in reversion , as appeareth . ed. . fol. & . ed. . brook. title of grants , . and concerning the first and last thing , if a lease be made of land , for term of life , the remainder to the major and commonalty of d. whereas there is no such corporation therein , being this remainder is meerly void , albeit the kings majesty by his letters pattents , do create such corporations , during the particular estate ; for at the time of such grant , the remainder was void , because then there was no such body corporate thereof capable , or potentia propinqua to be created and made capable thereof , during the particular estate , but the possibility thereof , was then forraign and probably intended . the like law is , if a remainder be limited to i. the son of t. s. who had then no son , and afterwards during the particular estate , a son is born who is named john , yet this remainder is void ; for at the time of such a grant , as was not to be probably in tender , that t. s. should have any son of that name . also before the dissolution of abbies ; if a lease of land were made to i. s. for life , the remainder to one that then was a monk , such remainder was void , for the cause before alledged , albeit we were deraigned during the particular estate . but if such remainder had been limited to the first begotten son of i. s. it had been good , and should accordingly have vested in such a son afterwards born , during the particular estate . rights . a right in land , is either cloathed or naked ; a right cloathed , is when it is wrapped in a possession , reversion , or remainder ; a naked right , which is also most commonly called a right , is when the same is separated from the possession or remainder , by dissessin , discontinuance , or the devesting , and separating of the possession ; as for example , if a lease of land be made for life to i. s. the remainder to i. d. in fee , in this case i. s. hath a right cloathed with a remainder . but if a stranger that hath no right or title , doth in the same case enter into the land by wrong , and put i. s. out of possession , such entry by wrong is called a disseisin ; and therefore the possession is moved from the right by reason thereof , the disseisor , is seised of the land , and i. d. hath also the like naked cloathing to the remainder , by such dissessin , is likewise devested , and plucked out of him , cannot be revested in him , during the right of such particular estate , unless the possession of the particular tenement but therewith revested ; which must be by this entry or recovery by action ; and by such entry of the particular tenement , or by his recovery , with execution , the remainder shal be invested , as well as the particular estate ; and so there is a right in goods and chattels , as well as lands , tenements , and hereditaments , which is also cloathed with a possession , so long as the rightful proprietor hath the same , but if another doth take them from him by wrong , he now hath onely a naked right to the same , which cannot be by him granted , for the cause before alledged , but yet he may release his right there unto him that is thereof possessed ; for the same reason that is before alledged , if a release of right , happen to be forfeited to the king , his highness may grant the same by his prerogative . finis . certain observations concerning a deed of feoffament . by t. h. gent. cujus posse est velle . london , printed , anno dom. . certain observations concerning a deed of feoffament . the premisses . you may finde in the premisses , first , the direct nomination , as well of the feoffor , as of the feoffee , together with their places of residence , habitation or dwelling , and their qualities , estates , additions , or conditions . secondly , the certain expressement and setting down of the lands conveyed . in com. norff. ) comitatus dicitur a comitando , of accompanying together , for generally at assises and sessions , those of that county where such assises or sessions are kept use to be impannelled upon juries , &c. for trial of issue taken upon the fact betwixt party and party , and not those in another county ; and it is a common presumption , that al persons within their counties take notice of such things as are there publickly don , hereupon it hapneth , that where lands , &c. lie in divers counties , if they be conveyed by feoffament , &c. livery of seisin , must be made in every county , where any parcel of the lands , &c. do lie . otherwise it is of two parcels of land in one and the same county . the name county , is in understanding al one with shire , which is so called from dividing , and either of them contain a certain portion of the realme , which is parted into counties , or shires , for the better government thereof , and the more easie administration of justice ; hence it cometh to pass , that there is no parcel of this kingdome , which lieth not within the circuit or precinct of some county or shire . there are reckoned in england , , counties or shires , and in wales . the county of northfolke lying northward , is so called , in opposition to suffolke , which lyeth towards the south , each one in respect of other gaineth his name . the addition given to the feoffor , you may perceive to be yeoman , the etymology wherof , mr. verstegan fetcheth from gemen , a word anciently used amongst the teutonicks , which as my authour saith , signifyeth vulgar or common , and so the letter g. by corruption being turned into the letter y. instead of gemen , we say and read yemen , or yeomen . others , ( how probably i dare not affirm ) derive it by contraction from these two words , viz. young men. famous master cambden , in his britannia , after he hath reckoned up sundry degrees , both of nobility , and gentry , ranketh yeomen in order next gentlemen , naming them ingenuous , in which sence i apprehend yeomen to be mentioned in a certain statute made r. . and in divers other statutes . and although the derivations of words be conveniently required in the law , & in every liberal science , for ignoratis termiignoratur & ars , yet to use the expression of a learned divine , though spoken in another case melius est dubitare de occultis quam litigare de incertis : so i must leave you to your own conceit , concerning the originall of the word yeoman , having onely set you down one or two opinions about it : however , i must not forget what sir thomas smith saith in his repub. anglorum , who very truely and properly calleth him a yeoman whom the laws of england call legalem hominem , that is to say a free man born , and m. lambert in his eirenarcha , will excellently inform you who are , and who are not probi & legales homines . there is no speciall , but only a generall consideration expressed in the feoffament , neither of which ( as i conceive ) is in such case absolutely materiall ( though i may say formall ) in regard of the notoriety of deeds of feoffament , &c. for livery and seisin ( as shall be said afterwards ) is essentially required to make them perfect , which cannot be without the knowledge of others , besides the parties themselves , and a feoffament doth thereby always import a free and willing consent , otherwise peradventure it might have happened in a bargain and sale , before . h. . cap. . for the better illustration whereof , take this example : you and another man agree together , theat you shall give him a certaine summe of money , for a parcell of land , and that he shall make you an assurance of it , you pay him the money , but he maketh you no assurance ; in this case although the state of the land be still in him ▪ nevertheless , the equity in conscientia boni viri , is with you , which equity is called the use , for which until the . h. . cap. . there was no remedy ( as saith sir francis bacon ) and that very truly , except in the court of chancery , but the same statute conjoyneth and annexeth the land and the use together , so you by this means for the consideration have the land it self , without any further conveyance , which is called a bargain and sale . but those grave senators , and worthy states men who made the said act of the ● . h. . cap. . for the transferring of uses into possession , wisely fore-seeing that it would be very inconvenient and prejudicious , nay , mischevous , that mens possessions should upon such a sodain , by the payment of a little money be transported from them , ( and perhaps in a tavern or ale-house , and upon straynable advantages ) did discreetly provide in the same parliament , the said act of . h. . cap. . that lands , &c. upon the payment of money as aforesaid , should not pass without a deed indented and inrolled , as by the purport of the same act may appear . now seeing that before the said act of h. . c. . lands might pass by bargain and sale upon consideration , without deed indented and inrolled , and might not pass ▪ without consideration in such manner , therefore i have heard lawyers say that consideration is still required in a bargain and sale , though it be by deed indented and inrolled , according to the same statute . sure i am that regularly in a deed of feoffament , it is not so as formerly is declared , and for the reason before expressed . dedisse . the word dedi ( by force of an act of parliament made . ed. . c. . commonly called the statute de bigamis , ) implyeth a warranty to the feoffee ▪ and his heires during the life of the feoffor , whereupon fitz herbert in his natura brevium . fo . . h. puts a case to this effect , viz. if a man give lands to one in fee , by deed , by the words dedi ▪ concessi , &c. hereby he shal be bound to warrant the lands of the feoffee , by vertue of those words , and if the feoffee be impleaded he shall have his writ of warrant ' chart. against the feoffor , by reason of the words dedi , concessi , &c. but not against his heire , for the heire shal not be bound to warranty , except the father binde himself and his heires to warranty , &c. by express words in the deed , i know some alledg , that because as well the statute , as fitzh . mention not onely dedi . but concessi also , therefore the one without the other , implyeth no warranty ▪ to whom it may be answered that the statute it self doth plainly prove against them , for the conclusion thereof hath these words , ipse tamen feoffator invita sua ratione proprii doni sui tenetur warrantizare ; and also the testimony of sir edward coke , may be produced herein , who affirmeth that the statute of bigamis , anno . . eliz. in the court of common pleas was expounded , as above is mentioned , namely that dedi did imply the warranty , and mr. perkins , cap. . saith that dedi in a deed of feoffament , comprehendeth in it a warranty , against the feoffor , and so doth not the word concessi . concessisse . i conceive the word concessi in feoffaments and grants ( the implyed warranty excepted which dedi creates ) to be of the same effect with dedi ; & also with confirmavi , especially in some cases : to which purpose hear what littleton speaketh in his chapter of discontinuance , also ( saith he ) in some case this verbe dedi , or this verbe concessi , hath the same effect in substance , and shal enure to the same intent , as the verbe confirmavi ; as if i be disseised of a carve of land , and i make such a deed sciant presentes , &c. quod dedi to the disseisor , &c. or quod concessi , to the said disseisor the said carve , &c. and i deliver onely the deed to him , without any livery of seisin of the land , this is a good confirmation , and as strong in law , as if there had been in the deed this verb confirmavi , &c. liberasse . the word liberavi , i take to be of the same nature with tradidi , which i have often seen in feoffaments , whereof it is remarkable , that hephron the hittite , when he assured the field of machpelah to abraham , gen. . . used the word trado : agrum trado tibi , that is , to abraham , as hieromes translation reads it . feoffasse . this word cometh from feudum or feodum , which signifieth fee , and is alwayes , or for the most part used in feoffaments , as participating of the same nature . confirmasse . concerning the word confirmo , somewhat may be gathered from what hath been spoken about the verb concessisse , yet i cannot forget how hierome renders the expresment of the said assurance of the said field of machpelah to abraham for a possession , in these words , co . firmatus est ager . &c. gen. . . and now i come to the second thing considerable in the premisses , namely , the feoffee whose addition is generoso . generoso . generosus , in english we read gentleman , which some derive from the two french words , gentil-houme , denoting such a one as is made known by his birth , stock , and race . sir tho. smith calleth all those gentlemen that are above the degree of yeomen , whence it may be concluded , that every noble-man may be rightly termed a gentleman , sed non vid versd . master cowel conceiveth the reason of the appellation to grow , because they observe gentilitatem suam , the propagation of their blood , by giving or bearing of armes , wherby they are differenced from others , and shew from what family they are descended . haeredi & assignatis suis some will have an heir so called , quia haeret in haereditate , or quia haeret in se haereditas , but to let such conceits of witty invention pass , it is certain , that an heir is so called from the latin word haeres . littleton in his chap. of fee-simple saith , that these words ( his heirs ) onely make the estate of inheritance in all feoffaments , and grants , &c. sure then it is necessary for him that purchaseth lands , &c. in fee simple , to have the feoffament run to himself & haeredibus suis , for if it run onely to himself , & assignatis suis , although livery and seisin be made accordingly , and agreeable to the deed ; yet thereby onely an estate for life shall pass , because there wanteth words of inheritance : and without livery and seisin in the case aforesaid , onely an estate at will shall pass . and the reason why the law is so strict in this thing ( as in many others ) for to prescribe and appoint such certain words to create and make an estate of inheritance , is , as master plowden saith in his commentaries , for the eschewing and avoiding of incertainty , the very fountain and spring , from whence floweth all manner of confusion and disorder , which the law utterly contemneth and abhorreth ; what herein hath been said , is to be apprehended and understood of persons in , and according to their natural capacities . yet perhaps an estate of inheritance may sometime pass in a deed of feoffament , by words , which may have reference , and will relate to a certainty , for certum-est quod certum reddi potest : as for example , you enfeoffe me and my heirs of a certain piece of land , to hold to me , & my heirs , &c. and i re-enfeoffe you , in as large , ample , and beneficiall manner , as you enfeoffed me : in this case ( they say ) you have a fee simple for the reason above expressed . so i come next to see what observations the deed of feoffament further affordeth . totam ill . pec . tre cont . very necessary and convenient it is in deeds of feoffament , &c. to have the lands , &c. thereby intended to be conveyed , certainely and expressely to be set downe , aswell how much by estimation in quantity , they doe containe , as the quality of the same whether meadow , pasture , &c. being the species of land , which is the genus , and the place where , and manner how they exist and lye , the better to shunne and avoid doubt , and ambiguity , which oftentimes stirre up occasions of unkind suites and contentions betwixt party and party , i know that grammarians reading the word peciam , will be ready to smile , and alledge , that it cannot defend it selfe in bello grammaticali , which i easily confesse ; but what then what can they inferre from hence ? will they therefore utterly condemne the use thereof ? me thinkes they should not , but might give lawyers leave to speakin their owne dialect . but what , if some take exceptions at this word , having occasion to meete with it here , what would they do , should they read the volums of the law , where instead of bellum , they shall find guerra , instead of sylva they shall sind boscus , and subboscus , with a thousand the like ? surely ( as saith erasmus ) they might commend or else condemn what they could not understand , or happily understanding , might admire from whence such uncouth words should proceed : for their better information ( if i thought they would thank me for my labour ) i could tell them that because the saxons , danes , and normans , have all had some hand , or at least a finger in our lawes , therefore through the commixtion of their several languages , it comes to pass that such difficult termes , and harsh latin words ( if i may so call them ) are frequenly obvious in the books and writings of the law. and indeed i see no reason why any man should object or cavil against the usage of such words , though they be not classical , seeing that aswel in the art of logick , as in philosophy , there are found many words , which they call vocabulaartis , vocables of art , which can no better stand , according to the strict rules of grammar , then the ancient words of law which cannot be changed without much inconvenience . acra . acra , in english an acre , seemeth to come from the latin word ager ; an acre is taken to be a quantity of land containing perches in length and in breadth . master crompton in his jurisdiction of courts saith that a perch is in some places more , and in some places less , according to the different usages in different countries , and so then it must needs be of an acre . but ordinarily , or for the most part , a perch is accounted , and esteemed to contain foot and an half in length . i take it to be the same with that measure which we call a rodde or pole. a perch in law-latin , is called pertica , or perticata . see the ordinance made for measuring of land , anno . ed. . in pulton's abr . titl . weights and measures . quaren . quarentena , in english a furlong , or furrow long : firlingus , or firlingum is the same , it hath been sometime accepted and taken for the eighth part of a mile , anno . el. c. . and i have read that firlingus , or ferlingus terrae continet . acras . the latins call it stadium . abbutt . abbutto is a verbe used by lawyers , to shew how the heads of lands do lie , and upon what other lands or places , denoting for the more certainty , what lands , &c. are adjacent about the lands , &c. abbuttelled . and now that i may speak once for all , in regard that lawyers do use to abbreviate their words in writing , the reason is not as some ignorantly have supposed , because they cannot express their terminations and endings , as they ought to be , but because of the multiplicity of business which they are to go through , oftentimes requiring very suddain dispatch . yet i could wish that the custome of short writing alicui scriptori non esset dispendium , but i fear me too many hereby take occasion to be wilfully ignorant , which otherwise peradventure they would not do . militis . miles , amongst the latins , signifieth a souldier , and in this place , and the like , miles is to be englished a knight , which ( as master cambden noteth ) is derived from the saxon gnite , or cnight . the heraldes will enform you of divers and sundry orders of knights , if you please to consult with them , or their writings thereabouts . a knight at this day is , and anciently hath been , reputed and taken for one , who for his valour , and prowess , or other service for the good of the common-wealth performed , hath by the kings majesty , or his sufficient deputy , on that behalf , been as it were lifted up on high , advanced above or separated from the common sort of gentlemen : the romans called knights celeres , and sometimes equites from the performance of their service upon horse-back , and amongst them there was an order of gentility , stiled ordo equestris , but distinguished from those they called celeres , as several roman histories do plainly testifie . the spaniards call them cavalleroes . the french men chivaliers . and the germanes rieters , all which appellations evidently enough appear to proceed from the horse , which may be some restimony of the manner of the execution of their warlike exercises . and surely it is a very commendable policy in states to dignifie well deserving persons with honorable titles ; that others may thereby be stirred up to enterprize , and undertake heroick acts , and encouraged to the imitation of worthy and renowned vertues . armig. armiger , in english signifieth esquire , from the french escuier , and perhaps an esquire may be called armiger quasi arma gerens , from his bearing of armes . ancient writers , and chronologers , make mention of some who were called armigeri , whose office was to carry the shield of some nobleman . master cambden cals them scutiferi . which seems to import as much , and homines ad arma dicti : they are esteemed and accounted of amongst us next in order to knights . clerici . clericus , in english we read clerke . it hath with us two sundry kindes of acceptations . in the first sense it noteth such a one , who by his practise and course of life doth exercise his pen in any the kings majesties courts , or elsewhere , making it his calling or profession : hereupon you shal find in the current of law , mention made of divers clerkes ; as for example , the clerke of the crown : the clerke of assise : the clerke of the warrrants : the clerke of the market : the clerke of the peace , with many others . in the second sense it denoteth such a one as belongeth to , and is imployed about the ministry of the church , that being his function : in which signification it is to be taken in this place , and in the like ; for i , for my part , did never find clerk in the first sense appropriated to any , as an addition simply . we have the use of the word clericus , from clerus , or clerecutus , signifying the clergy , that is to say , the whole number of those , which properly so called , or rather strictly , are de clero domini , i. e. hereditate sive sorte domini , for clerus cometh from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a greekword , signifying the same with sors in latine ; namely , a lot or portion . the habendum . habend ' . the office of the habendum , is to name again the feoffee , and to limit the certainty of the estate , and it may and doth sometimes qualifie the generall implication of the estate , which by construction and intendment of law passeth in the premisses : for an example whereof see bucklers case in the second book of sir ed. cokes reports , and throgmortons case , in plowdens commentaries . it is to be noted , that the premisses may be inlarged by the habendum , but not abridged , as it plainly appeareth , aswell in the said case of throgmorton , as in worteslies case reported also by master plowden , and i have read ( as my collections tell me ) that it is required of the habendum , to include the premisses . moreover , the habendum , ( as w. n. esquire , hath it in the treatise of the grounds and maximes of the law ) must not be repugnant to the premisses , for if it be , it is void , and the deed will take effect by the premisses , which is very worthy of observation . the tenendum . tenend ' . the tenendum , before the statute of quia emptores terrarum , made . ed. . was usually de feoffatoribus & haeredibus suis & non de capitalibus dominis feodorum , &c. viz. of the feoffors , and their heires , and not of the chief lords of the fee , &c. whereby there hapned divers inconveniences unto lords , as the losing of their escheats , or forfeitures and other rights belonging to them by reason of their seigniories , which as the same statute expresseth it , durum & difficile videbatur , &c. whereupon it was granted , provided and enacted quod de caetero liceat unicuique libero homini terras sitas seu tenementa sua , seu partem inde ad voluntatem suam vendere , ita tamen quod feoffatus teneat terram illam seu tenementum illud de capitali domino feodi illius per eadem servitia & consuetudines per quae feoffator suus illa prius de eo tenuit . q' estat ' fuit fait ( as saith one ) pur l'advantage de senior ' , which statue was made for the advantage of lords , and indeed i easily believe it . now it is evident from that which hath been declared out of the said statute , that at this day the tenendum , where the fee simple passeth , must be of the chief lords of the fee , &c. for no man since the said statute could convey lands in fee , to hold of himself , out of which rule the king only ( i think ) may be excepted , and 't is not in silence to be passed over , that where lands , &c. are conveyed in fee , though there be no tenendum at all mentioned , yet the feoffee shall hold the same in such manner as the feoffor held before , quia fortis est legis operatio : the statute so determines . the clause of warranty . et ego & haeredes mei , &c. warrantizabimus , &c. defendemus , &c. warrantizo , is a verb used in the law , and onely appropriated to make a warranty . littleton in his chapt . of warranty saith , que cest parol , &c. that this word warrantizo , maketh the warranty , and is the cause of warranty , and no other word in our law , and the argument to prove his assertion , is produced from the form and words used in a fine , as if he should say , because the word defendo , is not contained in fines to create a warranty , but the word warrantizo onely , ergo , &c. which argument deduced and drawn à majori ad minus , is very forcible , for the greater being inabled , needs must the lesser be also inabled : omne majus in se continet quod minus est , & quod in majori non valet , nec valet in minori . but certainly littleton is to be understood only of an express warranty indeed , and of a warranty annexed to lands , for there may be , and are other words , which will extend and inure sufficiently to warrant chattels , &c. and which will imply a warranty in law , as dedi , &c. and excambium ( as i have heard say ) implyeth a warranty in law , which from glanvil's vel in excambium , or escambium datione lib. . cap. . may receive some confirmation : and littleton in his chapter of parceners , teacheth that partition implyeth a warranty in law , &c. and lest some may here say , that defendemus stands for a cypher , i will tell them what bracton declareth of it , speaking about a warranty in deed , from the feoffor and his heirs , whose words are these : per hoc autem quod dicit ( scilicet feoffator ) defendemus , obligatse & haeredes suos ad defendendum fi quis velit servitutem ponere rei datae contra formam donationis , &c. lawyers in their books make mention of three kindes of warranties , viz. warranty lineall , warranty collaterall , and warranty which commences by disseisin . the first is when one by deed bindeth both himself and his heires to warranty , and after death , this warranty discendeth to and upon his heire . the second is in a transverse , or overthwart line , so that the party upon whom the warranty descendeth , cannot convey the title which he hath in the land , from him that was the maker of the warranty . the third and last is , where a man unlawfully entreth upon the freehold of another , thereof disseising him , and conveyeth it with a warranty , but this last cannot barr at all . of these , you may read plentifull and excellent matter and examples in littletons chapter of warranty , and sir ed. coke , learnedly commenting upon him , to whom for further illustration hereof , i referr you , as also unto master cowels interpretation of words in the title warranty , who there remembreth divers things very worthy observation concerning it . before i come to the fifth part of the deed of feoffament , give me leave to observe that a warranty alwayes descendeth to the heire at the common law , and followeth the estate ( as the shadow the substance ) and whensoever the estate may , the warranty may also be defeated , and every warranty ( as saith sir ed. coke ) which descends , doth descend to him that is heire to him which made the warranty , by the common-law . and moreover it is to be noted , as may be gathered from what hath been formerly said , that an heire shal not be bound to an express warranty , but when the ancestor was bound by the same warranty , for if the ancestor were never bound , the heire shall never be charged . and i remember i have read a case in br. abr . . h. . pl. . to this purpose . si home dit en son garrantie , et ego tenementa praedicta cum pertinentiis praefato a. b. le donee warrantizabo , & ne dit , ego & haeredes mei , il mesme garrantera , mes son heire nest tenus de garranter , pur ceo que ( heires ) ne sont expresse en le garranty . b. garr . . so i will forbeare to speake any further herein , being a very intricate and abstruse kinde of learning , requiring the pen of a most cunning and experienced lawyer and now i address my self to the fifth orderly , or formall part of the deed of feoffament the clause of in cujus , &c. in cujus rei testimonium . this clause is added as a preparatory direction to the sealing of the deed , for sealing is essentially required to the perfection thereof , because it doth plainly shew the feoffors consent to , and approbation of what therein is contained , hereupon it will not be much devious or out of the way , to make some mention of those fashions , which in the manner of sealing , and subscribing of deeds , have been anciently used by our ancestors : some report that the saxons in their time , before the conquest , used to subscribe their names to their deeds , adding the signe of the crosse , and setting down in the end , the names of certain witnesses , without any kinde of sealing at all . but when the normans came in , as men loving their owne country guises , they per petit & petit changed that custome ( as also many others ) which they found here , and ingulphus who was made abbot of croyland , in an . dom . . seemeth to confirme this opinion in these words : normanni cheirographorum confectionem cum crucibus aureis , & aliis signaculis sacris in anglia firmari solitam , in cera impressa mutant . yet i have read of a sealed charter in england before the conquest , namely that of st. ed. made to the abby of westminster : yet surely this doth not altogether repugne that which hath been formerly said , for i have seen in master fabians chronicle , and elsewhere that saint ed. was educated in normandy , and t is not unlikely but he might in some things incline to their fashions . the french-men have a proverbe , rome n'a este bastie tout en un jour ; and we in england use the same , namely rome was not built in one day : so it cannot be conceived that the normans in an instnat did alter the saxon custome wholly in this particular , but that it did change by degrees , and perhaps at the first , the king and some nigh unto , and about him did use the impression of a seale , which i am somewhat perswaded to beleeve , from a certain story which i have heard , concerning richard de lucy , chief justice of england , who in the time of h. . is said to have chidden an ordinary man , because he had sealed a deed with a private seal quant ceopertaine al roy & nobility solement . in the dayes of edward the third , sealing and seales were very usuall amongst all men , for proofe whereof i need not produce any other testimony , but the deeds themselves , whereof almost every man hath some . but i must remember that sir ed. coke , in the first part of his institutes , fo . . a. seemeth to overthrow the former opinions about the first using of seales in england , the sealing of charters and deeds , ( saith he ) is much more ancient then some have imagined , for the charter of king edwin brother of king edgar , bearing date an . dom . . made of the land called jecklea , in the isle of ely , was not onely sealed with his owne seale ( which appeareth by these words ) ego edwinus gratia dei totius britannicae telluris rex meum donum proprio figillo confirmavi , but also the bishop of winchester put to his seal , ego aelfwinus winton ' ecclesiae divinus speculator proprium sigillum impressi . and the charter of king offa , whereby he gave the peter-pence , doth yet remain under seal . the either of which two charters , are much more ancient then that of saint edw. before mentioned , yet happily there may be some reason probably affirmed why as well king edwin and the bishop of winchester , as offa , who was king of mereia about the yeare . did annex their seales to their charters , which no king of england or nobleman did before or after them , ( except saint ed. ) untill the comming in of the conquerour , that ever i could learne , heare , or read of , in any authour . neverthelesse , i must of necessity leave the search of such reason to others better studyed in the commentations and alterations of persons , times , and customes then i my selfe , however i never heard any one deny , but that the frequent use of sealing deeds did commence in the time of ed. . and was not ordinarily used amongst private men untill then , as hath been formerly touched . of the date . dat' . in this clause the stile of the king at large , the yeare of his reigne , and the yeare of our lord god , according to the computation and account of the church of england , together with the day of the moneth are expressed . in former times deeds were often made without date , and that of purpose , that they might be alledged within the time of prescription , as sir ed. coke , in his said booke of institutes , fo . . very worthily observes , and moreover that the date of deeds , was commonly added in the reigne of ed. and ed. . and so ever since , to whom i refer you , who in the place last quoted , hath very excellent matter and observations thereabouts . and thus to perform what i promised , i will speak a word or two concerning livery of seisin , and so conclude . livery of seisin . livery of seisin is a ceremony in law , used in the conveyance of an estate of freehold at the least in lands and other things corporeal : but in a lease for years , at will , &c. livery of seisin is not required , it being onely a chattel and no free-hold . by livery of seisin , the feoffor doth declare his willingness to part with that whereof he makes the livery , and the feoffees acceptance thereof is thereby made known and manifest . the author of the new termes of the law , saith that it was invented as an open and notorious thing , by means whereof the common people might have knowledge of the passing or alteration of estates from man to man , that thereby they might be the better able to try in whom the right and possession of land's and tenements were if they should be impanelled on juries , or otherwise have to do concerning the same . the usual and common manner in these daies of delivering of seisin , i know to be so frequent , that of purpose i will omit it : but i pray you note with me before i make an end , that livery of sesin is of sorts , viz. livery of seisin in deed , and livery of seisin in law , which is sometimes termed livery of seisin within the veiw . livery of seisin within the veiw cannot be good or effectual , except the feoffee doth enter into the lands , &c. whereof the livery of seisin was made unto him in the life time of the feoffor ; & it is not to be passed over in silence , that a livery in law may sometimes be perfected by an entry in law , as if a man maketh a deed of feoffament , and delivers seisin within the view , the feoffee dares not enter for fear of death , but claimes the same , this shall vest the freehold and inheritance in him , to which effect you may see the opinion of certain justices , . assis . pl. . upon a verdict of assise in the county of dorc. and i conceive that this vesting of a new estate , in the said case in the feoffee , making his claim were he dares not enter , stands upon the same reason , for ( contrariorum eadem est ratio ) that the revesting of an ancient estate and right in the disseisee doth by such claim , whereof you may read plentifully in littleton his chapter of continual claim . it is worth the observation that no man can constitute another to receive livery for him , within the view , nor yet to deliver ( as i have heard my master say ) for none can take by force or vertue of a livery in law , but he that taketh the free-hold himself , & è contra . otherwise it is to take and give livery of seisin in deed , for there aswel the feoffee in the one case may ordain and make his attorney , or attorneys in his name and stead , to take livery , as the feoffor in the other case to give livery , concurrentibus iis quae in jure requiruntur . and now let delivery of the deed to be added to the sealing thereof , and the state executing of the lands thereby conveyed , and then i presume none will refuse to allow that every thing hath been named , which is essentially required to the perfection of a bare deed of feoffament , and although i have mentioned the delivery of the deed in the last place , yet it is not the least thing , or of the least consequence or moment , for after a deed is sealed , if it be not delivered , est anul purpose , it is to no purpose , and the delivery must be by the party himself , or his sufficient warrant : so it may be gathered from what hath been said , that sealing of deeds without delivery is nothing , and that delivery without sealing will make no deed , but that both sealing and delivery must concur and meet together , to make perfect deeds . i hope such as are present at the sealing and delivering of deeds of feoffament , and the state executing thereupon , will not forget to subscribe their names , or markes , as witnesses thereof , whereby they may the better be inabled to remember what therein hath been done , if peradventure there shall be occasion to make use of them . and it is not amiss here before i end , to observe , that although upon deeds of feoffament , &c. it was not usual before the latter end of hen. . or thereabouts to endorse or make mention upon such deeds of the sealing and delivering of the deeds , or state executing of the lands , &c. intended thereby to be conveyed , ( for i my self have many deeds of feoffament which do testifie as much ) yet it is to be credibly supposed , and not without some manifest probability , that such persons whose names are inserted after a certain clause in such deeds , beginning with hiis testibus , were eye-witnesses of all . thus desiring you to take notice that i have called the said six parts of the feoffament formal , because they are not absolutely of the essence of deeds , &c. manebo in hoc gyro . i will here conclude , requesting all those to whom any sight hereof shall , or may happen to come , friendly to admonish me of my failings herein : whereby they shall ever engage me thankfully . finis . reformation in courts, and cases testamentary. parker, henry, - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason e _ ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing p thomason e _ estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; :e [ ]) reformation in courts, and cases testamentary. parker, henry, - . , [ ] p. s.n., [london : ] attributed to henry parker. caption title. imprint by wing. annotations on thomason copy: p. : "nouemb: . "; p. : "written by henry parker. esqr. . novemb. ". reproduction of the original in the british library. eng justice, administration of -- england -- early works to . law reform -- england -- early works to . jury -- england -- early works to . a r (thomason e _ ). civilwar no reformation in courts, and cases testamentary.: parker, henry b the rate of defects per , words puts this text in the b category of texts with fewer than defects per , words. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion reformation in courts , and cases testamentary . before the late abolition of episcopacie this nation suffered under too many testamentary jurisdictions : some counties had no lesse then . or . peculiars : and in some counties divers lords of manors , and corporations had a priviledge to prove wils , and speed businesse of that nature upon a lay account . the people found themselves divers wayes aggrieved by this multiplicitie of jurisdictions : and therfore to give some ease , and redresse therein , the metropolitans prerogative courts were erected about . yeers ago . in the yeer . dr : merick , judge of the prerogative court of canterbury , removed his office to oxford : and then there was a committee appointed to consider of a new settlement of that court , but nothing was reported thereupon . in the yeer . mr: maynard brought in an ordinance for making sir n : brent judge in dr : merricks place : and the same was passed with some other materiall alterations in the prerogative court . in the yeer . all episcopall jurisdiction was taken away : since which there is no true power remaining anywhere to dispatch testamentary businesse upon the ecclesiasticall score , except that of sir na : brents . sir na : brents jurisdiction has two defects , and so is as yet insufficient to do right to the whole nation : it wants extesinon of bounds : and a competent power of coertion . for want of extension it cannot proceed duly within the province of york , nor within the ancient province of canterbury : but onely in some speciall causes . hereupon occasion has been taken by divers private man without , and against authority of parliament , not onely where the prerogative has no cognizance , but also where it has to exercise testamentary jurisdiction : and so by these misproceedings the deceived people is put to much unnecessarie charge , in as much as they are necessitated to take out administrations the second time , and be at the expence of new probates as often as any suit arises . for want also of a sufficient coercive power ( for a court without a coersive power is no court ) the present judge cannot force men to bring in true inventories , or submit to order in other points : whereupon a vast licence is taken by many to defraud creditors , legatees , and other interessents : yea the state it self is often injured hereby , aswell as multitudes of private men . there is now living at guilford an executor which refuses to bring in an inventory : yet the testator died under sequestration , owed good summes upon bond to the parliament : and besides the main bulk of his estate , he gave away in his will above l. in pety legacies . in order to a reformation of these things , a committee of parliament was chosen in april . which after . yeers sitting made report in may : . the matter of that report was referred to a new committee to be formed into a bill , and in july following for the better maturing of that business , other members were added to that committee , and a speciall care thereof was recommended to sir pe : wentworth , and mr: miles corbet . since that time a bill has been prepared , and twice read in the house , but notwithstanding so much time is elapsed , it still hangs under a recommitment , and fails of giving satisfaction . the reason why the reforming of these things ( though the state it self , and thousands of particular men remain sufferers in the mean time ) proves so dilatory , and difficult , is supposed to be : because most men are possessed with two contrary extreme opinions : and few there are that pitch upon the middle and more moderate way . some men are wholly for the civilians , and out of favour to them , they would have no lesse then . courts erected , wherein none but of that profession stould sit as judges . some men are as opposite to civilians , and they would have that whole profession removed , and quite eradicated , aswell such as have been faithfull to the parliament during these late troubles , as such as have been enemies : only that testamentary busines might be thronged , and obtruded upon the other courts at westminster . in the mean while there is a third opinion , that mitigates both these extremes , and thereby declines the inconveniences occurring on both hands . according to this third opinion : if the court ( now cal'd the prerogative ) were inabled with such a coercive power , as other courts of justice have : if it had a jurisdiction in all causes testamentary whatsoever , throughout the whole land : if it were likewise animated with as many judges , as use to sit in other courts ( which the lord bacon thought necessary many yeers ago ) and if it were subordinated to another higher court , of as many judges , in all matters worthy of appeal : it would prove an excellent settlement : and without any further dangerous innovations ( we take in all other restrictions , and points of reformation prescribed to other courts against delayes , excessive fees , and arbitrary proceedings ) would be sufficiently serviceable to those publick ends , we all aime at . it is remarkable also that the advantages , and conveniences , which commend to us this middle way are many , and very weighty . for , . hereby that admirable light of the civill law , approvedly usefull in monarchies , and yet by some held more usefull in democracies , will be preserved in our english horizon , and saved from utter extinction . there is scarce a state in christendome , whose highest councels , and judicatories are not mainly swaid by the profound professors of civill law : and as learned polititians are generally the ablest servitors to all states ; so no other study , or breeding has more eminently accomplisht learned polititians , then this of the civill law . without a competent practice this knowledge will be lost to our natives : and this being so lost , we shall be driven , though to our shame , to have forreiners in p●nsion . now to reject the service of englishmen , when we are to treat with aliens : and not onely to trust , but also to gratifie with our english gold men born to a forrein interest , will be a great discouragement to our own students so rejected . besides testamentary busines is common to us with other nations , it never had hitherto any thing peculiarly municipall in it , the formes and the processes , and proofs of the civill law have ever hitherto so prevailed , that englishmen might confidently as to testamentary interests demand , and recover their rights abroad , and strangers might do the like in england . and t is not yet easie to foresee what inconveniencies may ensue if in this infancy of our republick we presently depart too far from ancient legall communities and correspondencies with other neighbouring nations . . as the study of the civil law will be preserved , by the number of doctors and advocates , that will be supported by one admiralty , and these two testamentarie courts : so the students of the civil law will be hereby the better reduced . heretofore , when there were so many peculiars , and judicatories in england , the very number of them was oppressive to the people : and yet there is not left now the tenth part of busines , and imployment for civilians , as was then . all the cognizance of decimal cases , and questions about matrimony , incontinence , canonicall obedience , and granting licences of many severall sorts is taken away ; and therfore it remains , that we must lessen our courts , as we have lessned the busines appertaining to our courts , or else our lawyers themselves will feel the inconvenience of it , as well as clients . countrey practise addes little to the skill , and ability of our gownmen , wherfore when there is a scarcity of countrey practise too , ( as there must needs be , if no fewer then . courts be establisht for so little busines , as is now remaining ) the very number of professors will become a burthen to the profession , rendring them , as indigent , as it does illeterate . . this due reducement of civilians will be for the states ease , as wel as for the commodity of our long-robed gentlemen . for multiplicity of jurisdictions , what by their own clashings , and what by the craft of their ministers , often begets multiplicity of needles suits , and t is possible that more publick and dangerous differences may be occasioned by their disputed limits , and divisions , and all these will be damageable to the common-wealth . if we calculate what the necessarie charge will be of maintaining twenty courts , as some propose in favour of civilians : or what will maintaine so many clerks , and officers , as there are counties in england , according to the proposal of the other side , we shall finde , it will amount to no small value . . this just apportionment of civilians to the latitude of their busines , by bringing with it an inlargement of benefit , and subsistence to those few practisers which remaine unreduced , will inable them to serve the state more beneficially and cheaply then their predecessors have done hitherto . t is manifest that the same practise which with moderate fees will creditably and amply maintaine twenty practisers , will not maintain fourty , though they be permitted to exact fees more immoderately . it is proposed therefore in behalf of this new settlement , that the judges , and their dependents above , without any demand of new fees , shall at their proper cost maintaine , and depute sufficient officers belowe in the chief towne , or city of each county , that is distant above , or , miles from london : to dispatch all such testamentary busines there , as is in common forme , and may be dispatched by letters : and so save the greatest number of suitors their travaile to london . it is also undertaken , that the said deputies shall in favour of the poorer sort do busines gratis , and neither take gratification nor reward where the inventory exceeds not l. and in all other dispatches of greater value it shall be the same deputies part to transmit all things up to london that deserve registring , and reserving , without grating upon clients . likewise , the same deputies , if authority thinke fit , which thus intend testamentary busines below , may finde leasure , and opportunity enough to keepe authenticall entires , and records of all other contracts , and solemne acts betwixt party , and party , which deserve to be treasured up for publick search . how acceptable therefore such a settlement would be to the people , when it should speed all mens busines so compendiously , and the poores so gratuitously , and how full of grace it would appear to the generality , need not be further demonstrated . . hereby the excessive incumbring , and over-charging of our courts at westminster with a surplusage of testamentary busines ( not yet foreseen by some practisers of the common law ) will be aptly prevented . it will be the wisdome of the parliament to provide , that we have neither too many courts for our suits , nor too many suits for our courts : both being attended with great inconveniencies , but the second with far greater , then the first , some would have in every county a court , and reduce us to the old manner of jurisdiction , which was used in england long before the norman conquest , when this was a cantoniz'd country , and obeyed severall pety princes : and this is pressed as very counsellable , by that party , which would cantonize us the second time : but t is to be fear'd , if this designe prevaile , our quarrels , and controversies will abound , and increase upon us , as fast as our judicatories do . that fire which is now kept up in one hearth at westminster , will be then scatered all over the house , and so spread its flame much wider then before . other objections lie against too many courts , espescially when they are attended with more illiterate judges , and unexpert counsellors : but the intent of this paper is to shew that there is lesse publick prejudice in too many courts , then in too few . t is with the politick , as with the natural body : both finde obstructions more fatal then fluxes , and both receive more torture from a defect in the expulsive faculty , then from a defect in the relentive faculty . too much vexation from many courts may be compared to a disentery : but want of expedition by reason of too few courts is like the nephriticall malady , and kils us with pangs inexpressible . the parliament of late has taken away half our courts almost at westminster : and thereby doubtles it has taken away from amongst us many of our suits , and law-questions ▪ but it is as far out of doubt withall , that all the differences that were formerly decided in those abolisht courts , are not abolisht together with those courts . this together with the calamity of our late broiles , and confusions , has begotten a very great glut of busines at westminster hall : and this glut of busines has most undeservedly begot a complaint against westminster hal. every man sees that the chancery at present grants not clients such dispatch as is expected : but every man sees not the true cause of this : and the plain truth is , the fault is not in the court , nor in the commissioners , nor in the pleaders : t is too great a confluence of busines that chokes up , and obstructs chancery proceedings : and t were much better for the common-wealth to be at the charge of two chanceries for too little busines , then to maintaine one that 's over burthened with too many causes . oh that the parliament would consider what want of a due hearing , and redresse is in chancery , and other courts , yea and within its own walls . the greatest of our grievances , the grievance of all our grievances at present is ; that our grievances can have no vent , and that our complaints know no place , where they may effectually disburthen themselves , many thousands at this day being no where remediable but in parliament , have wofull petitions to present , yet can obtaine no accesse at all to the house : and some thousands of those that obtaine accesse , either waste themselves in a diuturnall frustraneous attendance , or are at last denied their requests , or are undone for want of a timely deniall . there is now a prisoner in warwick castle , whose long durance has sunk him into the deepest of all worldly afflictions , and his languishment is now almost desperate , because though he has alwayes in other matters deserved well of the parliament , and no great ill in this ( as he hopes to prove , if he may be admitted to any triall ) he sees the house which can hear his accusation , yet cannot find leisure to hear his defence , nor will provide for him any other issue out of this miserable condition . i my self in a case of no meer , private concernment have attended upon committees for dispatch at least seven yeers : and though that attendance has much broken my fortunes , and disappointed me of divers hopefull preferments , and given me cause to complain against my undoers : yet am i fain to strangle my griefes in private , lest i should by a new supplication condemne my self again to the torture of sisyphus , for seven yeers longer . i uttet not this here , because it burns , and festers like a deep suppuration in my minde : but because i beleeve there are very many others in my condition , to whom want of expedition ( being like the stoppage of the stone in the uritories ) apears more intolerable , and procures more desperate disaffections then it does to me . pardon this digression , it means no ill : it would onely demonstate , that there is danger , and damage in too many tribunals , yet not so great as in too few . . hereby there will be one cettain place for all suitors to dispatch their busines at , and that place will be london our metropolis , incomparably the most commodious of the whole land for such dispatches : when there are many judicatories , and registries in severall counties , and provinces to resort unto , there cannot but follow much uncertainty to clients ; and uncertainty in matters of this nature is ever the mother of confusion , and distraction . some men which look no further then to the ease of executors and administrators , suppose london too far distant from some counties , and therefore they propose to have all wils proved , and administrations granted where each testator or partie intestate dyes : but these in the mean time have no regard to the ease of creditors , legatees , and other interessents who often are more in number , and whose rights are often of more value , then the executors and administrators . wherfore forasmuch as one that lives in cornwall , another in london , and a third in norfolk , may be concerned in a will or administration at barwick , or carlile , and so by this proposition must accidentally travail to barwick or carlile , the most incommodious places of all england : and still there is no certain place designed to any man before-hand ; what a generall vexation and perplexity is this likely to produce in many cases ? now london as it is a place alwayes fixed , and pre-determined , so it does for manifold conveniences deserve that preheminence before all other places whatsoever . for , . london is the common justice seat for all suitors to resort unto in all other differences ; and therefore testamentary records are most necessarie to be there kept , where they are to be oftnest produced , and where they may be most ready at hand upon all occasions to be used . . all ages can testifie , that testamentaries records have there been ever most safely treasured up : whereas if an inquiry be now made of the registries belowe , without doubt it will be a strange account that will be returned of their records , and ancient minniments . . if suits arise ( as they do most frequently about wills , administrations , &c. ) no other place can afford so able advocates , sollicitors , &c. as london can. . london is so qualified for correspondence , by reason of the vast concourse of people there about other busines , that any man may write thither , and by writing have busines dispatcht there with lesse trouble and expence , then he can ride twenty miles any other way : and the greatest part of testamentary busines is dispatchable by letters . . as the best choise of able responsall registers and other officers are to be had at london , so if they misdemeane themselves , there is the readiest remedy to be obtained against them . . the dispatch of busines below is not left to the meer care and costs of interessents farr remote from london , that is in in great part to lie upon the shoulders of such as shall have deputations from above as the busines is here stated : upon the whole matter therefore it may rationally be concluded : . that a speedy settlement of some new testamentary jurisdiction is worthy of the parliaments serious consideration . . that this settlement here proposed , is the most adequat to our publick , nationall interest of any that has been yet debated : if every man would know that the generall interest comprehends his particular , as the greater does the lesse : but not on the contrary : and so the common and civill jurist would not confine their thoughts to what is the advantage of their profession ; nor the burgesse of such a town , nor the lord of such a mannor , nor the knight of such a sheere ; restrain themselves within their own narrower circles , but would obey the rapture of the highest orbe ; all our motions would be far more regular , and concentrick . statuta vetera & recentiora a methodical collection & abridgement of the statutes that relate to the knowledge and practice of the common-law / by d.f. laws, etc. england and wales. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing f estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) statuta vetera & recentiora a methodical collection & abridgement of the statutes that relate to the knowledge and practice of the common-law / by d.f. laws, etc. england and wales. d. f. [ ], p. printed by john streator, eliz. flesher, and h. twyford, assignes of rich. atkyns ad ed. atkyns ...to be sold by g. sawbridge [and others] london : . reproduction of original in the british library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp 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good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- england -- digests. common law -- england. statutes -- england. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion statuta vetera & recentiora . a methodical collection & abridgement of the statutes that relate to the knowledge and practice of the common-law . by d. f. london , printed by iohn streater , eliz. flesher , and h. twyford , assignes of rich. atkyns and ed. atkyns , esquires . and are to be sold by g. sawbridge , j. place , j. belliager , w. place , t. basset , r. pawlet , c. wilkinson , t. dring , w. jacob , c. harper , j. leigh , j. amery , j. poole , booksellers in fleetstreet and holborne , a. d. . cum gratia & privilegio regiae majestatis . preface . as general abridgements of the statutes of this realm have hitherto been and will alwayes continue to be of great use ; so now since they are become so voluminous , there seems to be a like usefulness , if not a necessity , of particular abridgements to direct those whose study and employment is more especially conversant in some peculiar practice of the law. some collections of this nature are already published : one concerning the office of a iustice of peace , under the title of statuta pacis , which comprehends a great part of the crown law. others relating to the kings revenue , as that of the customes , of the excise , another of the hearth money , all of great benefit in their several kinds . but those statutes that immediately relate to the general practice of the common law and the courts wherein the same is used , have not hitherto been collected apart , and are in a manner left , as the choice fruit upon the upper branches not to be seen for the clusters that hang below . this book therefore is designed for those statutes , wherein as there is no repetition of what hath been in any former particular abridgements : so neither is there any notice taken of the multitude of those other statutes , some whereof refer to a part of the realm only , as those of older time w ch concern the uniting of wales , and fixing jurisdictions there , and the like ; in counties palatine , and of later , for the drayning of the fenns which extend but to some countryes ; others are restrayned to peculiar jurisdictions as those of the sewers , of charitable uses , regulation of corporations , &c. others which ( though more general ) respect only the policy of the realm in preserving its religion , strength , trade , riches , and beauty , such are the statutes that concern the divine service and sacraments anniversary feasts and fasts upon special occasions , the militia revenue , navigation , fishing tymber , drapery , and several other manufactures , rebuilding of london , and many more of that kind . all which though of publique advantage , yet not having a direct aspect upon private rights and possessions , are forreign to the present design , and most proper for general abridgments , in which they are to be had : this being intended chiefly for the benefit of practisers and students of the common law , that in their practice and reading they might have a ready recourse to those statutes which particularly relate thereunto . it was not thought convenient to go beyond the time of edward the . since when the practice of the law has been most uniforme ; because most of the old statutes , as magna charta , merton , marlebridge , west . . . . and the rest till this time are generally but declaratory and affirmative of the common law ( as my lord cook has observed ) and may now by their antiquity and uninterrupted usage be said to be incorporated into the body of the common law , with which this treatise medleth not : the other parts of those antient statutes referring generally to such proceedings as now are wholly out of use , and therefore not proper to be inserted : such are those many chapters that concern pleadings and other proceedings in real actions now out of use , and are already in print by the name of magna charta , and other antient statutes in a little volume by themselves . here therefore such only are culled out as referr to the law as 't is now used and practised , wherein such care has been taken that nothing material is omitted : so that though it le not directly but collaterally within the design of this treatise , they are here mentioned , as the statute of hue and crye , because many actions are brought thereupon , and those of bankrupts being of general and dayly use &c. but such statutes as have abrogated or rescinded what formerly hath been in use by the dissolution of courts , alteration of tenures , abridgment of michaelmas term , and the like , are here omitted . it were to be wished that the statutes as they are here set down in order of time in the first table , were printed at large in a volume together by themselves , because of that general objection to abridgments , that they are not of unquestionable authority ; and it would be of further benefit to students if enterleaved , because many of the cases and reports that are extant are aptly referrable thereunto , which if collected with diligence and iudgment would be an excellent comment on the same . however these tables and abridgment are of extraordinary use : for as the first table shews what statutes were made in every particular kings raign , so the other furnisheth you with the common and known heads and titles of the com̄on law whereto every statute referreth : where at one view you may see what several statutes in several kings reigns have been made concerning such a branch , head or title of the common law , such as is used by practisers and students in their common place books . and since there is a great diversity in the methodising of those heads , as that of fitzherbert , brook , rastal , ash , and of late one more accurate by serjeant roles ; the reader may be pleased to take notice , that what he finds here , is digested ( as nearly as could be ) according to the last . first table . edward . . an̄o reg. cap.   . . executors . . . executors . . . administrators . executors . . . pleading . ric. . . . attaint . error . . . resceipt . . . admiraltie . vide court. henr. . . . nonsuit . . . admiraltie . vide court. . . atturney .   . judgment . . . ley gager . henr. . . . additions . vide briefe . . . corpus cum causa . vide habeas corpus .   . libell . . . amendment . henr. . . . amendment . . . amendment .   . amendment . . . apparance . vide default . . . sheriff . vide obligation . ric. . . . fines . henr. . . . damages and costs . . . actions popular .   . fines . . . discontinuance . vide continuance . . . error .   . damages and costs . henr. . . . avowrie . . . executor .   . probate of wills. vide executors .   . residence .   . recoveries .   . avowries . . . attai●   . recognisance .   . citation .   . damages and costs . . . costs . . . uses and wills.   . inrolment . . . residence . . . partition . . . wills. vide executors .   . limitations .   . execution .   . maintenance .   . leases . vide powers .   . repleader .   . partition .   . entre congeable .   . conditions .   . fines .   . rents .   . mariages . vide baron & feme . , . . wills. vide devise .   . recoveries . edwar. . . . discontinuance . vide continuance . , . . tithe . vide dismes . , . . offices . phil. & mar. . sess . . . limitation . , . . tales . vide tryal .   . maidens . eliz. . . bishops leases . vide powers . . . excomunicato capiendo . v. excomengement . . damages and costs . . . fraudulent conveyances . vide fraud .   . letters patents . vide pleading .   . bankrupts .   . leases and dilapidations . vide powers .   . leases of parsonages . vide powers . . . recoveries .   . tales . vide tryal . . . informers . vide action popular .   . leases of spiritual livings . vide powers .   . jeofailes . . . fraudulent conveyances .   . demurrers .   . hue and cry . . . informers . vide atturney . . . exigent and outlawry . vide utlagary .   . actions popular .   . simonie .   . informers . vide atturney .   . faires and markets . vide market . . . corpus cum causa . vide habeas corpus .   . damages and costs .   . executors .   . policies of assurance . vide merchants . jac. . . bishops leases . vide powers .   . bankrupts . . . delays of execution . vide execution . . . costs for the defendant . vide costs . . . officer impleaded . vide office. . . action popular .   . certiorari .   . officer impleaded . vide office.   . jeofailes .   . limitation .   . bankrupt .   . corpus cum causa . vide habeas corpus .   . execution . car. . sess . . . delays in execution . vide briefe and costs . . . sheriff . vide office.   . atturnment . merchants .   . bankrupts . . . abatement of writs of error . vide briefe .   . delayes in extending statutes v. execution . , . . arrest of judgment . vide execution . . . distress and avowry . vide replevin .   . delays . vide execution . . . decease of person beyond seas . v. entry cong . . . error . . . costs and damages .   . administrator . vide executors second table . actions popular . h. . c. . el c. . jac. c. . el c. . amendment . h. . c. . h. . c. . h. . c. . c. . el. c. . attaint . r. . c. . h. . c. . atturney . h. . c. . el. c. . el. c. . avowrie . h. . c. . h. . c. baile . car. . sess . . c. . bankrupts . el. c. . jac. c. . jac. c. . car. . c. . baron & feme . h. . c. . briefe . h. . c. . car. . c. . certiorari . jac. c. . conditions . h. . c. . continuance . edw. . c. . costs . h. . c. . el. c. . jac. c. . car. . sess . . c. . , car. . c. . court. admiraltie . h. . c. . damages . h. . c. . h. . c. . h. . c. . el. c. . el. c. . defalt . apparance . h. . c. . devise . h . c. . h. . c. . , h. . c. . discontinuance . h. . c. . dismes . , edw. . c. . dower . iointure . h. . c. . entrie cong . h. . c. . car. . c. . error . r. . c. . car. . c. . , car. . c. . car. . c. . car. . c. . excommengement . el. c. . execution . h. . c. . jac. c. . jac. c. . , car. . c. . c. . c. . executors . administrators . edw. . c. . h. . c. . car. . c. . edw. . c. . edw. . c. . h. . c. . el. c. . fine . r. . c. . h. . c. . h. . c. . fraud . el. c. . . el. c. . habeas corpus . h. . c. . el. c. . jac. c. . hue and cry. el. c. . inrollment . h. . c. . iudge . r. . c. . ley gager . h. . c. . libell . h. . c. . limitation . h. . c. . sess . p. m. c. . jac. c. . maintenance . h. . c. . market . el. c. . nonsuit . h. . c. . car. . sess . . c. . obligation . h. . c. . office. , edw. . c. . jac. c. . jac. c. . car. . c. . partition . h. . c. . h. . c. . pleading . edw. . c. . el. c. . el. c. . car. . c. . powers . h. . c. . el. c. . el. c. . el. c. . el. c. . jac. c. . proces . h. . c. . car. . sess . . c. . prohibition . h. . c. . recognisancc . h. . c. . recoverie . h. . c. . , h. . c. . el. c. . rents . h. . c. . repleader . h. . c. . replevin . car. . c. . resceipt . r. . c. . simonie . el. c. . spiritual persons . h. . c. . h. . c. . trial. car. . c. . , p. m. c. . el. c. . uses . h. . c. . utlagary . el. c. . action popular . . recovery in an action popular by covin shall be no bane in an action sued for the same thing bonâ side . . here the defend ’ attainted of collusion shall suffer years imprisonment to be prosecuted within one year . . no release of a common person shall in this case discharge an action popular . . yet no collusion is in this case averrable , where the point of the same action , or the collusion it self hath been tryed by verdict . . informers heretofore resirained by order of any court , shall not pursue actions popular . . in popular actions the offence shall be laid to be done in the county where indeed it was done : otherwise if the defend ’ traverse and disprove that point , the plaint ’ shall be barr'd . . this act doth not restrain officers , which have lawfully used to exhibite informations , nor actions brought for champerty , buying of titles , extortion , offences against the statute of el , . ( concerning the right landing of merchandises , and custome of sweet wines ) concealing of customs , &c. corrupt usury , forestalling , regrating or ingrossing , when the penalty shall amount to l. or above : for in all these cases the offence may be laid in any county . . popular actions , where the king onely hath the forfeiture , shall be commenced within years ; where he hath onely a part , and the informer the rest , within one year . but this is to be understood , where a shorter time is not limited by any statute . . all suits for using unlawful games , or any art or mysterie without being brought up in it , and for not having bowes and arrowes according to the statute , shall be prosecuted at the assizes or sessions of the county , or at the leet within which the offence was committed , and not elsewhere . . actions popular which may be presented before iustices of assise , nisi prius , g. d. oyer and terminer , or of p. shall be prosecuted onely in the counties where the offences were committed , except for recusancy , maintenance , champerty , buying of titles , concealing of customes &c. or transporting of gold , silver , munition , wool , woolfells , or leather . . upon default of proving that the offence was committed in the same county , the defendant shall be found not guilty . . the informer shall make oath that the osfence was committed in the same county where the action is laid , and within one year before the suit commenced . . the defend ’ in a popular action , may plead the general issue , and yet give special matter in evidence . . an informer shall exhibit his suit in proper person , and pursue it by himself or by his attorney in court , and that by way of information or original action , and shall have no deputy ; and all this in pain of . pound and the pillory . . a note of the time of exhibiting the information shall be truly taken , and from thenceforth it shall be accounted to be of record , before which time no processe shall issue out upon it . . the clark that makes out the processe , shall indorse the informers name , and also the statute upon which the information is grounded in pain of s. . no jury shall appear at westminster for a tryal upon any penal law , when the offence was committed above miles from westminster , except the attorney general for some reasonable cause require the same . . no informer shall compound with any defend ’ before answer , nor then , but by consent of court , in pain of l. and the pillory . . where the informer delayes or discontinues his suit , or otherwise is nonsuit or overthrown , the court shall assigne costs to the defend ’ to be immediatly levied by execution issuing out of the same court. . iustices of oyer and terminer , assize and peace , in their sessions have power to hear and determine these offences . . this act shall not restrain actions brought for maintenance , champerty , buying of titles , or imbruary , nor any certain person , or body politique , to whom any forfeiture or penalty is specially limited , nor certain officers , who have lawfully used to exhibite informations . amendment . . the justices before whom any default shall be found by misprision of a clerk , in one syllable or letter too much or too little , in any record or process , may amend the same as well aster judgment as before , so long as such record or process shall continue before them . . this shall not extend to any record or process whereby any person is out-lawed : nor to wales . . no judgment or record shall be reversed or annulled for error assigned by reason of the razing or interlining of any record , process , warrant , writ , pannel , or return : or of any addition , substracton or diminution of words , letters , titles , or parcel of letters found in the same . . the judges may reform all desects in any record , process , wards , plea , warr ’ , writ , pannel , or return , ( except appeals , indictments , of treason , or felony , and outlawries of the same , and the substance of the proper names , sur-names , and additions left out in original writs , exigents , and in other writs of proclamation contrary to he statute of h . concerning additions ) so that by such misprision of the clerk no judgment shall be reversed or annulled . . variance alledged between a record and the certificate thereof , shall be amended by the judges . . if a record , process , writ , warrant , pannel , return ; or any parcel thereof be exemplified under the great seal , and inrolled , for any error assigned in the said record , &c. in any letter , word , clause , or matter varying , or contrary to the exemplification or enrollment , there shall be no judgment reversed or annulled . . the justices may amend the misprision and defaults of clerks of the court , or of sheriffs their clerks , and of all other officers whatsoever , found before them in any record or process , or the return of the same , by reason of writing one letter , or one syllable too much or too little ; except in records and processes within wales , and of felonies and treasons , and the dependants of the same . . after demurrer joyned and entred , the judges shall proceed and give judgment according to the right of the cause and matter in law , without regard to any defect in the proceeding , except such only as the party shall express , together with his demurrer . after which time no judgment shall be reversed by writ of error , or for any other defect , then such as he shall there mention ; and if there happen to be any other , the judges may amend there . . this act shall not extend to the proceeding in an appeal of felony or murder upon an indictment , presentment , or penal statute . attaint . . he in the reversion shall have an attaint or writ of error upon a false verdict found , or an erroneous judgment given against the particular tenant . . if the oath be found false or the judgment erroneous , and the tenant still in life , he shall be restored to his possession and issues , and the reversioner to the arrerages : but if he be dead , or be found of covin with the demandant , the reversioner shall have all : yet the tenant may traverse the covin by scire facias out of the judgment or writ of attaint , if he please . . upon every untrue verdict before iudges of record , ( except where the thing in demand extendeth not to the value of . l. or concerneth life ) the party grieved shall have an attaint against the pettie jury , and also against the party that hath the judgement thereupon . . the process here shall be summons , resummons and distress infinite , as well against the petty jury and the party , as against the grand jury , who shall be of the accustomed number , and have lands to the yearly value of markes out of auntient demesne . . the distresse shall be awarded dayes before the return of it , and shall be made upon the land of every one of the grand jury , as is used in other distresses . . albeit the defend ’ or petty jury or some of them appear not , yet the grand jury shall proceed . . if any of the petty jury appear , the plaint ’ shall assigne the false serement whereunto the petty jury shall have no other answer ( if they be the same persons , and the writ , process and assignement be good ) but that they made true serement , which shall be tryed by of the grand jury , unless the plaint ’ hath before been nonsuited , or discontinued his suit , or had judgement against the jury for the same verdict . . howbeit that the defend ’ may plead that they gave a true verdict , or any other matter which may barre the attaint ; but notwithstanding such plea the grand jury shall neverthelesse enquire whether the first jury gave a true verdict , or no. . if the petty jury be found to have given an untrue verdict , they shall each of them forfeit l. to be divided between the king and the plaint ’ , and incurr several fines at the discretion of the justices , and be ever after disabled to give testimony in any court . . if the defendants plea in barr be found against him , the plaint ’ shall have judgment to be restored to what he lost , with his reasonable costs and damages . . outlawry or excommunication shall be no plea against the plaint ’ in attaint ; and in the aforesaid process such day shall be given as in dower , but no essine or protection allowed . . if the grand jury appear not , so that the petty juryes verdict remain untried , the defalters shall upon the first distress forfeit s. upon the d. s. and upon every distress after l. the like penalty is also to be inflicted upon the tales . . the attaint is maintainable as long as any two of the the petty jury are alive . . an attaint shall also lye for a personal thing under the value of l. in manner aforesaid , save only in such case the grand juror is to have lands worth markes per annum out of auntient demesne , or to be worth a hundred markes in goods , and the forefeiture of each juror shall be but l. . for want of sufficient iurors in one county a tales shall be awarded into another county at the discretion of the iustices . . an attaint shall also lye for him in reversion or remainder ; and also if in attaint the plaint ’ be nonsuit or discontinue his suit , he shall be fined at the discretion of the iustices . . all attaints shall hereafter be taken at the kings bench or common pleas and not elsewhere , and nisi prius shall be granted upon the distress ; at the discretion of the iustices also any of the petty iury may appear and answer by atturney . . as concerning the forfeitures , the several moyties shall be recovered by the king and parties respectively by ca : sa : or si : fa : or elegit , or action of debt against each of the petty jury : their executors or administrators having sufficient goods of the testators not administred . . judgement and execution of restitution to the plaint ’ , and of discharge of restitution to the tenant or defend ’ shall be given and had as in case of a grand attaint hath been used . . the nonsuit or release shall not prejudice his companions . . in every writ of attaint after the test these words shall be inserted per statutum continuatum usque annum h. . dei gratiâ &c. atturney . . all atturneys shall be examin'd by the iustices , and by their discretion put into the roll. . those that are by them approved , shall swear truly to serve in their offices , and to make no suit in a foreign county . an insufficient atturney shall be put out by the like discretion of the iustices ; and their masters or clients shall have notice thereof , lest they be prejudic'd thereby . . as any dye or cease , the iustices shall appoint others , being vertuous , learned , sworn as aforesaid . . if an atturney be found notoriously in fault , he shall forbear the court , and be never admitted into any other court. . the treasurer and barons of the exchequer shall pursue the like course there at their discretion . . if any shall be sued upon any penal law in the kings bench , common pleas , or exchequer , where such person is baylable by law , or may appear by atturney , the person so sued shall at the day contained in the first process appear by atturney to defend the same , and shall not be urged to personal appearance , or to put in bayle to answer the same . . the said clause of el. shall onely extend to natural born subjects or free denizens . avowry . . recoverers of lands , tenements and advowsons , their heires and assignes may distrain for rents , services and customes due and unpayd , and make avowry and justifie the same , and have like remedy for recovering them , as the recoverers might have had or done , albeit the said recoverers were never seised thereof ; and shall also have a quare impedit for an advowson , if upon avoydance any disturbance be made by a stranger , as the recoverers might have had , albeit they were never seised thereof by presentation . . here every avowant in any replegiare or second deliverance , if their avowry , conusans or justification be found for them , or the plaint ’ be otherwise barred , shall recover his damages and costs . . termer for years may falsifie a faigned recovery had against him in the reversion , and shall retain and enjoy his terme against the recoverer , his heires and assignes , according to his lease . . also the recoverer shall have like remedy against the termer , his executors and assignes by avowry or action of debt for rents and services reserved upon such lease , and due after such recovery , and also like action for wast done after such recovery as the lessor might have had , if such recovery had never been . . no stat ’ of staple merchant or execution by elegit shall be avoyded by such feigned recoveries , but such ten’ts shall have like remedy to falsifie such recoveries as is here provided for the lessee for years . . upon a replevin , an avowry may be made by the lord or conusee , and iustification by his baylife or servant upon the land holden of the said lord , without naming any person certain to be tenant thereof : the like law is also upon every writ sued of second deliverance . . in any replegiare or second deliverance for rents , services , customs , or damage feasant , if the avowry , conusance or iustification be found for the defendant , or the plaint ’ be nonsuit or otherwise barred , the desend ’ shall recover such damages and costs as the plaint ’ should have had if he had recovered . . both parties shall in such writs have like pleas , aid , prayers , ioynders in aid , as at the common law , notwithstanding this act ; pleas of disclaimer onely excepted . baile . . no person arrested upon any writ out of the kings bench or common pleas , upon which he is lyable by the stat ’ h. . c. . shall be forced to give security or enter into bond with sureties for his appearance at the day in such writ , bill or processe specified in any sum above l . unless the cause of action be expressed particularly : and where such cause of action is not expressed , all sheriffs and officers shall let to baile persons arrested upon l . security for their appearance , according to the stat ’ h. . . upon appearance by atturney in terme entered in court , where the process is returnable , the baile bond shall be satisfied and discharged , and after such appearance no amerciaments shall be estreated against any sheriff or officer for want of appearance ; and if the plaint ’ in some personal action declare not before the end of the next terme after appearance , nonsuit shall be entered against him , and costs taxed and levied , as in the stat ’ h. . c. . . proviso this act extend not to capias utlagatum , attachments upon rescous , attachments of priviledge , or any other attachment for contempt whatsoever , issuing out of any of the said courts . banckrupts . . if any person ( subject or denizen ) exercising trade doth depart the realm , conceal him or her self , take sanctuary , suffer him or her self to be arrested , outlawed or imprisoned without just cause , to the intent to defraud his or her creditors being subjects born , he shall be deemed bankrupt . . the lord keeper or chancellor upon complaint in writing against any such bankrupt , may appoint honest and discreet persons to take such order with the body of the bankrupt whereever found , and also with the lands ( as well coppy as free ) hereditaments , annuities , offices , writings , goods , chattels and debts wheresoever known , which the bankrupt hath in his own right , with his wife , child , or children , or by way of trust , or any secret use ; and to cause the said premisses to be searched , rented , appraised and sold for the payment of the creditors rateably according to their debts , as in the discretion of such commissioners or the most part of them shall be thought fit . . the vendees of coppy-hold land shall compound with the lord for their fines , and then shall be admitted and make fealtie according to the custome of the mannor . . such of the commissioners as execute the commission shall upon the bankrupts request render him the account and also the overplus ( if any be ) unto him , his executors , administrators and assignes . . the commissioners have power to convene before them any person accused or suspected to have any of the bankrupts goods , chattels or debts , or to be indebted unto him , and for discovery thereof to examine upon oath or otherwise , as they or the most of them think fit . . the person refusing in that behalf to disclose or swear shall forfeit the double value of the goods and chattels so concealed , to be ordered and imployed by the commissioners or the most part of them . . the person demanding or detaining any of the bankrupts goods , chattels , lands , or debts not justly due , shall forfeit the double value to be levied , recovered and imployed as aforesaid . . if after all the creditors are paid out of the bankrupts estate and the forfeitures , any surplusage be , it shall be by the commissioners divided between the queen , her heires and successors , and the poor of the place where such bankrupts happen to be . . if any person indebted absent himself from his usual place of abode , upon conplaint the commissioners or the most of them shall award proclamations to be made upon sundry market dayes near the said place , commanding him to render himself to the commissioners or one of them ; which if he do not in convenient time , he shall be adjudged out of the queens protection , and the party wittingly receiving or concealing him , upon information to the commissioners or the most of them , suffer such imprisonment and pay such fine as the lord chancellor or keeper shall think fit . . the creditor not fully satisfied by this means may , notwithstanding this act , take his course at law for the recovery of the residue of the debt . . the estate which happeneth to the bankrupt by purchase or descent after he becomes a bankrupt , shall also be extendable by the commissioners , or the more part of them . . this act shall not extend to annual estates of land ( free or coppy ) by him conveyed before he became bankrupt , so that they were conveyed bonâ fide , and not to such as were privy to his fraudulent purpose . . every subject born or denizen , who using trade shall depart the realm , keep house , absent him or her self , to be arrested for debt not justly grown due , to be outlawed , imprisoned , fraudulently procure his person to be arrested or goods attached , depart from home , make any fraudulent grant of lands or goods , with intent to deceive his other creditors being subjects born , or being arrested lye in prison months or more , shall be adjudged a bankrupt . . the bankrupt hereby described shall be proceded against as is limited by the el. . in like maner as if he had been there so fully described . . any creditor shall be received to take his part if he come in within months after the commission sued forth , and pay his part of the charge : otherwise the commissioners may proceed to distribution . . if a bankrupt grant his lands or goods , or transferr his debt into other mens names , except to his children upon marriage , they being of age to consent , or upon valuable consideration , the commissioners may notwithstanding sell them , and such sail shall be good . . if upon warning in writing left times at the most usual place where he dwelt within one year before he became bankrupt , he appear not before the commissioners , they may cause him to be proclaimed at some publique place or places , and if upon such proclamations he yield not himself , they shall by warrant cause him to be brought before them to be examined concerning his estate . . if the bankrupt shall refuse to be examined , the commissioners shall commit him until he conform ; or if being informed he commit perjury to the prejudice of the creditors to the value of l . or more , he shall be indicted for the same , and after conviction stand upon the pillory , and have one of his ears nailed thereto and cut off . . if any person be known or suspected to detain any of the bankrupts estate , and do not appear or send some lawfull excuse at the next meeting after warning given him , or appearing refuseth to be examined upon oath , the commissioners by warrant shall cause him to be arrested , and if he still refuse , shall commit him until he do submit . . the witnesses shall have convenient charges allowed them ratably by the creditors , and such of them as shall be perjured , and their procurers shall be indited upon the stat ’ el. . . the forfeitures of this act shall be recovered by the creditors , and ( the costs of suit deducted ) shall be ratably divided amongst them . . the commissioners have power to assign the bankrupts debts to the creditors , and by such assignement they shall be recoverable as their proper debts . . no debtor shall be prejudiced by the payment of his debt to the bankrupt , hefore he have notice that he is bankrupt . . the commissioners shall make such accompt to the bankrupt , and likewise pay him such overplus , as by e●iz . . is ordained , and the creditors being all satisfied the bankrupt may recover the remaining debts . . if any of the commissioners or other person imployed by them be sued for any act done by force of the commission , the defend ’ may plead not guilty , or justifie , and the whole matter shall be brought in evidence according to the very truth thereof , and if the verdict pass for the defend ’ he shall have his costs . . the commissioners shall proceed to execution notwithstanding the death of the bankrupt . . all laws made against bankrupts shall be construed beneficially for the creditors . . persons of trade and scriveners that procure protection except of parliament , and all such as by exhibiting petitions endeavour to compel their creditors to take less than their due debts , or to gain time for the payment thereof , or being indebted in l. or more shall not satisfie the same within months after the same grows due , and the debtor arrested , or within months after the original writ sued out and notice given thereof in writing at the place of his abode , or after arrest escape out of prison , or procure enlargement by putting in common bayle , shall be adjudged bankrupt , and in case of arrest from the time of the arrest . . commissions and other proceedings provided by el. . and jac. . shall also be pursued against him that by this act is prescribed to be a bankrupt , and proceedings provided by this act shall be pursued against him that is described in the other . . the bankrupts wife shall also be examined upon oath , and if she appear not or refuse to be examined , she shall incurr the punishment inflicted by the former lawes , in like cases . . the bankrupt that fraudulently concealeth his goods , or tendreth not some just reason why he became bankrupt , shall after conviction be set in the pillory and lose one of his ears . . the commissioners may by themselves or others break open the bankrupts house or chests &c. where his estate is , or is reputed to be , and then seise and order his body or estate , as by the former laws is ordained . . in the distribution of the bankrupts estate , no more respect shall be had unto debts upon judgment , recognizances , specialties with penalties or the like , than to other debts . . the commissioners may proceed when the bankrupt by fraud makes himself accomptant to the king. . another mans goods in the bankrupts possession shall be also distributed by the commissioners as the bankrupts own goods . . the commissioners grant of the bankrupts entailed estate shall be good , except when the reversion or remainder is in the king. . no purchaser shall be impeached by this or the former act , unless the commission be sued forth within years after he becomes bankrupt . . this act , as also all the former , shall extend to strangers , ( both aliens and denizens ) as well as to subjects born , as well to be relieved as also to be subject to the penalty thereof . . whereas divers noblemen , and gentlemen , not brought up in trade , have notwithstanding put great stocks into the east india and guiny company , it is declared that no person adventurer for putting in mony or merchandize into the said companies , or for adventuring or managing the fishing , called the royal fishing trade , shall be taken or reputed a merchant or trader within any stat ’ for bankrupt , or be lyable to the same . . provided , that persons trading or trafficking in any other manner , than in the said companies or fishing , shall be lyable to the commission of bankrupts . baron and femme . all marriages shall be adjudged lawful , that are not prohibited by gods law. brief . . in original writs , where exigent shall be awarded , addition of the defendants condition and dwelling shall be inserted . . outlawries otherwise prosecuted shall be void . . surplusage of additions shall not prejudice , albeit the writ do therein vary from the records and deeds . . the clerks of the chancery shall not omit such additions , in pain to be fined at the discretion of the chancellor . . original writs may be sued upon personal actions against prisoners in the fleet , and an habeas corpus granted to bring them to the bar , to answer any suit or declaration : being put in , and the defendant not appearing , judgement may be entred by nihil dicit , and the prisoner charged in execution upon notice hereof to the warden of the fleet by rule of court. . in actions of debt , and other personal actions , and ejectione firmae in any of the said courts , after issue joined to be tried by the jury , and after judgement obtained , there shall not need to be fifteen dayes between the teste and return of any venire fac ’ , hab ’ corpora jurator ’ , distringas , fieri fac ’ or cap ’ ad satisfac ’ , and the want of it shall be no error . . provided this extend not to writs of cap ’ ad satisfac ’ , where any exigent after judgement is to be awarded , nor to any cap ’ ad satisfac ’ , in order to make any bail triable . certiorari . certioraries shall not be allowed unless the indicted will become bound with sufficient sureties ( such as the justices of peace in sess ’ shall like of ) to pay to the prosecutor within one month after conviction such costs and damages as the said justices shall assess . conditions . . grantees of reversions may take advantage of conditions and covenants against lessees of the same lands , as fully as the lessors , their heirs or successors might have done . . lessees may also have the like remedy against the grantees of reversions , which they might have had against their lessors or grantors , their heirs or successors ; all advantage of recoveries in value , by reason of any warranty in deed or law by voucher or otherwise , only excepted . costs . . there shall be no costs awarded to the defendant , when any action is sued to the kings use . . in personal actions in the courts at westminster ( being not for land or battery ) when it shall appear to the judges ( and so by them signified ) that the debt or damage to be recovered amount not to the summe of s , or above , the said judges shall award to the plaintiff no more costs than damages . . if the defendant or plaintiff be non-suit , or overthrown by lawful trial in any action whatsoever , the tenant or defendant shall have costs to be assessed and levied by the h. . c. . . if any person sue a writ of error to reverse a judgement after verdict , and the said judgement is afterwards affirm'd , he shall pay to the defendant in the writ of error double costs , to be assessed by the court where such writ of error shall be depending . . in all actions of trespass , assault and battery , and other personal actions , wherein the judge at the trial of the cause shall not find and certifie under his hand upon the back of the record , that an assault and battery was sufficiently proved , or that the freehold or title of the land was chiesly in question , the plaintiff shall have no more costs than damages , in cases the jury find damages under s. continuance . discontinuance . . the death of the king shall not discontinue any suit betwixt party and party ; neither shall the variance between the original and judicial process in respect of the kings name ●e material , as concerning any fault to be alledged therefore . . assises of novel disseisin , mortdancestor , juris u●rum , or attaints , shall not be discontinued by reason of death , new commissions , or associations , or the not coming of the same justices to any of them . . preferment of the demandant or plaintiff to be duke , archbishop , marquess , earl , vicount , baron , bishop , knight , justice of the one bench or the other , or serjeant at law , shall not make the suit abatable . . preferment of a justice of assise , gaol-delivery , or peace , or of any other commissioners to the dignities aforesaid , shall not lessen his power . . new justices of gaol-delivery may give judgement of a prisoner sound guilty of treason or felony , though he were reprieved by other justices . . no process or suit before justices of assise , gaol-delivery , oyer and terminer , or peace , or other of the kings commissioners shall be discontinued by a new commission , or by the alteration of any of their names . court. admiralty . . the admirals court shall not have cognizance of any thing done within the realm , but onely upon the sea. . the party grieved upon non-observance of the r. . c. . shall by action upon his case recover double damages against the prosecutor in the admiralty , and the prosecutor shall also forfeit l. to the king. damages . . when any person bound by a judgement shall sue ( before execution had ) a writ of error to reverse it , if the judgement be affirmed , the writ discontinued , or the party that sueth it be non-suit , the party against whom the writ is brought shall recover his costs and damages at the discretion of the justices before whom the said writ is sued . . if the plaintiff be non-suit or overthrown by lawful trial in any action , bill , or plaint , for trespass upon the r. . c. . or for any debt or covenant upon specialty or contract , or for detinue , accompt upon the case , or upon any statute , the defendant shall have his costs , to be assessed by the judge , or judges of the courts , and to be recovered as the plaintiff might have recovered his , in case judgement had been given for him . . he that sues in forma pauperis shall not pay costs , but shall suffer such punishment as the justices or judge of the court shall think fit . . when any person shall sue forth of the kings bench any latitat , alias , and pluries capias , against any person who thereupon doth appear , and put in bail , if the plaintiff do not declare within three dayes after , or do after declaration delay or discontinue his suit , or be non-suit , the judges of that court shall thereupon award damages against the plaintiff . . the like shall be done in the courts of the marshalsea london , and all other corporations and liberties where the courts are kept de die in diem , but where they are not so kept , then the plaintiff must declare at the next court after appearance , unless he have longer time allowed him by the court. . if any shall malitiously ( for vexation and trouble ) cause or procure any person to be arrested or attached to answer in any of the said courts at the suit of any person , whereas there is none such , or without the consent and agreement of the party at whose suit such arrest and attachment is procured , the party so causing or procuring the same , and thereof convict by indictment , presentment , the testimony of two or more witnesses , or other due proof , shall suffer six months imprisonment without bail , and shall not be enlarged until he have satisfied the party grieved his treble damages , and besides shall forfeit unto him ( if he be known ) l. to be recovered ( as also treble damages ) by action of debt , bill or plaint , in any court against the party so offending , his executors , or administrators , in which no essoign , &c. shall be allowed . . in personal actions in the courts at westminster ( being not for land or battery ) when it shall appear to the judges ( and so by them signisied ) that the debt or damages to be recovered amount not to the summe of s. or above , the said judges shall award to the plaintiff no more costs than damages , but less at their discretion . defalt . apparence . . no filizer , exigenter , or other ossicer whatsoever in any suit shall make entry , that the plaintiff obtulit se in propria persona sua , unless the plaintiff before such entry made doth indeed appear in proper person before some of the justices of the place where the plea depends , and either by himself or some other credible person of his counsel , make oath that he is the same person in whose name that suit is commenced and prosecuted . devlse . testament . . every person having mannors , lands , tenements or hereditaments holden in socage , or of the nature of socage tenure , and not having any mannors , lands , &c. holden of the king by knights service , socage tenure in chiefe , nor of any other person by knights service , shall have power to give , dispose , will and devise as well by his last will and testament in writing , as otherwise by any act executed in his life , all such mannors , lands , &c. at his pleasure . . where the stat ’ h. . c. . mentioneth mannors , lands , &c. of inheritance , it shall be expounded and taken of estates in fee simple . . every person having a sole estate in fee simple , or seised in coparcenary , or in common in fee simple , in any mannors , lands , tenements , rents , or other hereditaments in possession , reversion or remainder , and having no lands holden of the king , or of any other by knights service , may give , dispose , will or devise to any person or persons , ( except bodyes politick and corporate ) by his last will and testament in writing , or by act executed in his life by himself solely or by himself and others joyntly , severally , or particularly , or by all those wayes or any of them as much as in him of right is , all his said ma●nors , lands , tenements and hereditaments , or any of them , or any rents , commons , or other profits out of the same or any parcel thereof , at his free will and pleasure . discontinuance . . if a woman , that hath an estate in dower , for life , or in taile , jointly with her husband , or onely to her self , or for her use , in any lands &c. of the inheritance or purchase of her husband , or given to the husband and wife by the husbands ancestors , or any seised to the use of the husband or his ancestors , do , sole , or with an after-taken husbband , discontinue , or suffer a recovery by covin , it shall be void , and he to whom the land ought to belong after the death of the said woman , may enter , as if the woman were dead , without discontinuance or recoverie . . provided , that the woman may enter after the husbands death . but if the woman were sole , the recovery or discontinuance barreth her for ever . . this act extends not to any recovery , or discontinuance with the heir next inheritable to the woman , or by his consent of record enrolled . dismes . . every person shall without fraud yield and pay all predial tythes , as hath been used , or of right or custome they ought to have been paid . . none shall take or carry away any tythes payd , ( or that ought to have been payd as aforesaid ) before he hath justly divided and set forth for the use thereof , the th part thereof , or otherwayes agreed for the same tythes with the parson , vicar , or other owner or proprietor or farmer thereof in pain to forfeit the treble value of the tythes so carried away . . at tything time it shall be lawfull for the owner ( claiming such predial tythes ) his deputy or servant , to see his said tythes be truly set out and severed from the nine parts , and the same quietly to take and carry away . . if any person carry away his corn , hay , or other predial tythes before they be set out , or willingly withdraw his tythes of the same , or other things whereof the tythes ought to be paid , or do let such owner to view , take and carry away such tythes , by reason whereof they are lost , impaired or hurt , that then upon due proof thereof before a spiritual judge the party so carrying away , withdrawing or stopping shall pay the double value of the tythe so taken , lost , withdrawn or taken away before costs of suit to be recovered before such ecclesiastical judge according to the ecclesiastical laws . . tythe of cattel feeding in a wast or common where the parish is not known , shall be payd by the owner of such cattel in the parish where he dwells . . none shall be compelled to pay tythes for lands , or other hereditaments , which by the laws and statutes of the realm , or by any priviledge or prescription , are not chargeable therewith , or are discharged by any composition real . . barren heath , and wast ground ( other then such as be discharged from tythe by parliament ) which hath heretofore payd no tythes by reason of the barrenness thereof , but be now improved and converted to arable ground or meadow , shall at the end of years next after such improvement pay tithes ; or if they yield some small tythe before such improvement , they shall only pay that same small tythe during the first years , but afterward shall pay the full tythe according to such improvement . . every person exercising merchandice , buying and selling , or any other art or fuculty , ( being such persons and in such places as heretofore have used to pay personal tythes within years , or of right ought to have payd them , and not day labourers ) shall yearly at or before easter pay for his personal tythes the th part of his clear gains , reasonable charges and expences being deducted . . handycraft men having used to pay tythes within years shall still pay them . . the ordinary hath power to examine him that refuseth to pay his personal tythes by any lawfull meanes otherwise than by his own oath concering the payment of such tythes . . offerings shall be payd in the place where the party dwells at such offering dayes as heretofore within the space of years last past have been used for the payment thereof but in default thereof at easter . . parishes that stand upon or towards the sea coast , the commodities whereof consist much in fishing , shall pay their tythes as they have done within years , and their offerings as aforesaid . . this act shall not extend to london , or canterbury , or their suburbs , or to any other town , or place , where the inhabitants have used to pay tythes by houses . . suites for substracting or withdrawing of tythes or other profits spiritual shall be prosecuted in the ecclesiastical court before the ecclesiastical judge who hath power ( no original or prohibition hanging ) to excommunicate the party disobeying the sentence , and if he stand excommunicate dayes to certifie the excommunication ( after publication at the place or parish where such party dwells ) into chancery , and thereupon to require processe de excommunicato capiendo , to be awarded against the person so excommunicate . . before a prohibition shall be granted the party plaint ’ shall bring a true coppy of the libell exhibited into the ecclesiastical court concerning that suit , subscribed with the hand of the party , and thereunder shall be written the suggestion whereupon the party demandeth such prohibition ; and the libell thus ordered shall be delivered to the justices of the court where the prohibition is so demanded : and if such suggestion be not proved to that court by sufficient witnesses within monthes next after such prohibition granted , the other party shall upon request have consultation , the double costs and damages awarded by the said court , and may recover such costs and damages by action of debt . ▪ this act shall not give power to any ecclesiastical judge to hold plea of any matter against the meaning of the statute of w. . c. . articuli cleri , circumspecte agatis , sylva caedua , the treatise de regia prohibitione , nor of e. . . nor to any of them , nor where the kings court ought of right to have iurisdiction . . no tithes of marriage goods shall be paied in wales or the marshes thereof . dower . iointure . . where an estate is made in possession , or use to husband and wife , and his heires , or the heires of their two bodies , or to them for their lives , or for the wives life for her iointure , in any of these cases she shall not have dower : howbeit , upon a lawfull eviction of that iointure , she shall be endowed according to the rate of the husbands land whereof she was dowable . . such a iointure being made after marriage , the wife ( after her husbands death ) may refufe it and betake her to her dower , unless such iointure be made by act of parliament . entrie . . where a disseisor dieth seised of lands , that descent shall not take away the entry of the disseisee , or his heire , unless the disseisor had peaceable possession thereof five years next after such disseisin committed . . if any prisoner , person for whose life or life 's any estates have been or shall be granted remaining beyond sea , or otherwise absenting themselves the realm for years , and no sufficient proof made of their lives , shall thereupon be accounted naturally dead ; and if thereupon any person shall be evicted out of any lands or tenements by virtue of the same act , and afterwards the person upon whose life the estate depends shall return , or be proved living , or to have been living at the time of the eviction , then the tenant or lessee who was ousted , or his executors &c. may reenter , repossess and enjoy the said land in their former estate , so long as the persons upon whose lives the estate depends shall live , and shall recover against the lessors &c. or other persons upon action for damages , the full profits , with lawfull interest . error . . he in reversion shall have a writ of error upon an erroneous judgment given against tenant for life . . for preventing abatement of writs of error upon judgment in the exchequer , enacted : that the not coming of the lord chancellor and lord treasurer or either of them at the day of the return of any writ of error , to be sued forth by vertue of the statute ed. . c. . ( recited in the statute el. c. . ) shall not cause any abatement , or discontinuance of any such writ of error . but if both the chief justices of either bench , or either of them , or any one of the said great officers , the lord chancellour , or lord treasurer , shall come to the exchequer chamber , and there be present at the day of the return of any such writ of error , it shall be no abatement or discontinuance : but the suit shall proceed , to all intents , as if the said lord chancellour and lord treasurer had come and been present at the day and place of return of such writ . . after a verdict of men in any action , suit , bill , or demand , commenced after the th of march . in any of the courts of record at westminster , or courts of record in the county palatine of chester , lancaster , or durham , or court of the great session , or in any of the shires of wales , judgment thereupon shall not be stayed or reversed , for default in forme or lack of forme , or lack of pledges , or but one pledge to prosecute returned upon the original writ , or for default of entring of pledges upon any bill or declaration , or for default of bringing into court of any bond , bill , indenture , or other deed whatsoever mentioned in the declaration or other pleading , or for default of allegation of the bringing into court of letters testamentary , or letters of administration , or by reason of the omission of vi & armis , or contra pacem , or for mistaking of the christian name , or sur-name , of the plaint ’ or defend ’ , demand ’ or tenant , summe or summes of money , day , month , or year , by the clarke in any bill , declaration , or pleading , where the right name , sur-name , summe , day of the month or year , in any writ , plaint , roll or record preceeding , or in the same roll or record , where the mistake is committed , is rightly alledged , whereunto the plaintiffe might have demurred , and shewen the same for cause : nor for want of the averrment of hoc paratus est verificare per recordum , or for not alledging , prout patet per recordum , or for that there is no right venue , so as the cause were tryed by a jury of the proper county or place where the acted is layd . . nor any judgment after verdict , confession by cognovit actionem , or relicta verificatione , shall be reversed for want of misericordia , or capiatur , or by reason that a capiatur is entered for a misericordia , or a misericordia for a capiatur : nor , that ideo concessum est per curiam is entered for ideo consideratum est per curiam ; nor for that encrease of costs after a verdict in any action or upon a nonsuit in replevin , are not entred to be at the request of the party for whom the judgment is given ; nor by reason that the costs in any acton whatsoever are not entered to be by consent of the plaint ’ : but that all such omissions , variances , defects and other matters of like nature , not being against the right of the matter of the suits , nor whereby the issue or tryal are alter'd , shall be amended by the justices and other iudges of the courts where such judgments are or shall be given , or whereupon the record is or shall be removed by writ of errour . . provided this act extend not to any writ , declaration or suit of appeal of felony or murther , nor any indictment nor presentment of felony , murther , treason , or other matter , nor to any processe upon any of them , nor to any writ , bill , action or information upon any penal statute , other than concerning customes and subsidies of tunnage and poundage . . and after the th of march . no execution shall be stayed in any of the aforesaid courts by writ of errour , or supersedeas thereupon after verdict and judgment in any action personal whatsoever , unless a recognisance with condition according to the former statute made jac. c. . shall be first acknowledged in the court where such judgment shall be given . . in writs of errour to be brought upon any iudgment after verdict in any writ of dower , or of ejectione firmae , no execution shall be stayed , unless the plaint ’ in such writ of error shall be bound to the plaint ’ in such writ of dower or ejectione firmae in such reasonable summ as the court to which such writ of error shall be directed , shall think fit , with condition that if the judgment shall be affirmed in the said writ of error , or the writ of error discontinued in default of the plaint ’ therein , or that the said plaint ’ be nonsuit in such writ of error , that then the plaint ’ shall pay such costs , dammages , and summs of money as shall be awarded after such iudgment affirmed , discontinuance , or nonsuit ; and the court wherein such execution ought to be granted upon such affirmation , discontinuance or nonsuit , shall issue a writ to enquire as well of the mean profits , as of the damages by any wayes committed after the first iudgment in dower or ejectione firmae : and upon return thereof iudgment shall be given , and execution awarded for such mean profits and damages , and for costs of suit . . provided this act extend not to any writ of error to be brought by any executor or administrator , nor any action popular , nor to any other action which is or shall be brought upon any penal law or statute ( except actions of debt for not setting forth of tythes ) nor to any indictment , presentment , inquisition , information , or appeal . . this act to continue in force for three years , and to the end of the next session of parliament , after the said three years , and no longer . . in all actions , personal , real , or mixt , the death of either party , between the verdict and judgement , shall not be alledged for error , so as such judgement be entred within two terms after such verdict . . this act to continue for the space of five years , and from thence to the end of the next sessions of parliament . . judgement shall or may be given in any suit or writ , or writs of error in the exchequer , in the preseuce of the lord keeper , notwithstanding the vacancy of a lord treasurer , in such manner as hath been accustomed where there was present both the chancellor , and the lord treasurer . excommengement . . every writ de excommunicato capiendo shall be made in term time , and returnable in the kings bench the next day after the teste thereof , having dayes betwixt the teste and return . . after the writ shall be sealed , it shall be forthwith brought into the kings bench , and there opened , and delivered of record to the sheriff or other officer , or other deputies to whom the execution thereof appertains , and then if the sheriff or other officer do not duly execute it , the justices shall amerce him at their discretion , and estreat the amercement into the exchequer . . at the return of the writ , the sheriff or other officer , &c. shall not be compelled to bring the party arrested into the kings bench , but only return the writ with a short declaration how it was executed , to the end the justices may proceed therein according to the tenor of this act . . if the sheriff , or &c. return a non est inventus , then shall issue out of the kings bench a capias returnable in term time two months ( at least ) after the teste thereof , with a proclamation to be made dayes ( at least ) before the return in the county court , assise , gaol-delivery , or sessions , that the party shall within dayes after such proclamation yield his body to the gaol , and there remain as a prisoner , in pain of l. and what shall be done therein , and thereupon shall be returned by the sheriff , or &c. . if upon the return it appear that the party hath not rendred himself prisoner upon the first capias , he shall forfeit l. more to be estreated as aforesaid , and then a second capias shall be awarded against him with a pain to forfeit l. to be estreated by the justices as aforesaid , and then a third capias shall be awarded with like proclamation and pain , and then a fourth , and so infinitely , until he render himself prisoner , upon the several returns whereof he shall forfeit l. to be estreated as aforesaid . . the party yielding his body shall be committed to prison in like sort as is he had been taken upon the excom . cap. . if the sheriff , &c. make a false return upon any of the said writs , he shall forfeit to the party grieved l. . the bishops authority to receive submission , and deliver the excommunicate is saved according to the former usuage , viz. by a certificate thereof from the bailiff into the chancery , and then a writ from thence to deliver the prisoner . . in wales , the counties palatine of lancaster , chester , and durham , and ely , ( the cinque ports being jurisdictions exempt , where the queens writ runneth not ) a significavit ( being of record in chancery ) shall be sent by mittimus to the justices or head officers there , who shall then proceed against the excommunicate as the kings bench is above directed . . if in the excom . cap. the excommunicate have not a sufficient addition according to the statute h . . or if in the significavit it be not contained that the excommunication proceeds upon some cause or contempt of some original matter of heresie , refusing to have his child baptised , refusing to receive the sacrament , to come to divine service , or errors in matters of religion or doctrine , incontinency , usury , symony , perjury in the ecclesiastical court , or idolatry , he shall not incurr the penalties aforesaid . . if the addition be with a nuper of such a place , the first capias and proclamation shall issue forth without any penalty : and in such case also if the party be proclaimed in a county where he is not for the most part resiant , he shall not incurr the penalties aforesaid . . persons in prison under age , non sane memory , shall not incur the penalties aforesaid . execution . . if lands delivered in execution on just cause be recovered without sraud from the tenant in execution before he shall have levied his whole debt and damages , he may have a scire fac ’ out of the court from whence he had his execution , returnable into the same court at a day dayes at least after the date of such scire fac ’ ; at which day if the defendant being lawfully warned make default , or do appear and not plead a sufficient cause other than the former acceptance of the lands , to avoid the said suit for the residue of the said debt and damages , the said court shall award a new writ of execution for the levying thereof . . no execution shall be stayed upon any writ of error or supersedeas thereupon for the reversing of a judgement in any action of debt , or upon any contract in the courts at westminster , of the counties palatine of lancaster , or chester , or of the great sessions in wales , unless the plaintift with two sufficient sureties ( such as the court shall like of ) shall first be bound to the party ( for whom such judgement is given ) by recognizance in the same court , in double the summe adjudged , to prosecute the said writ of error with effect , and to pay , if the judgement be affirmed , all debts , damages and costs so adjudged , and all costs and damages for delaying the execution by the writ of error . . the parties or party at whose suit any person shall stand charged in execution for debt or damages recovered , their executors , administrators , may after the death of the person so charged in execution lawfully sue forth new execution against the lands and tenements , goods and chattels of the person deceased , in like manner as if the person deceased had never been taken in execution : howbeit this act shall not extend to lands sold lona fide after the judgement given , when the money raised thereupon is paid , or secured to be paid to creditors in discharge of due debts . . for further remedy against the staying of execution after judgement in part provided against by the stat ’ jac. c. . no execution shall be stayed in any of the said courts by writ of error or supersedeas after verdict and judgement , in action of debt upon the stat ’ of e. . for tythes , promise for payment of money , trover , covenant , detinue , or trespass , unless such recognisance in the same court be first entred as directed by the said statute , and if such judgement be affirmed , the party presenting such writ of error to pay double costs for such delay . . proviso this act shall not extend to any popular action , except e. . nor to any indictment , information , inquisition , or appeal . . when any judgement , statute , or recognizance shall be extended , it shall not be avoided or delayed by occasion of omission of any part of the lands or tenements extendible , saving always the remedy of contribution against such person whose lands be or shall be extended out of such extent for time to come . . this act gives no extent or contribution against any heir within the age of years , during such minority , further than might have been before this act. . provided this act extend only to such statutes as be for the payment of money , and to such extents as shall be within years after the statute , recognizance , or judgement had . . this act to continue for three years , and from thence to the end of the next session of parliament , and no longer . . where any judgement after a verdict shall be had , by , or in the name of any executors or administrators , in such case an administrator de bonis non may sue forth a scire fac ’ , and take execution upon such judgement . . this act to continue for the space of five years , and from thence to the next sessions of parliament . executor . the ordinarys shall depute the next and most lawful friends of the intestate to administer the goods ; which deputies shall have the benefit and incurr the charge of an executor , and shall also be accountable to the ordinaries as executors . . administration of intestates goods shall be granted to the widdow , or next of kin to the intestate , or both as the ordinary shall think fit . . the ordinary or other person enabled to make distribution of the surplusage of the estate of the intestate shall distribute one third to the wife , and all the residue equally amongst the children and such persons as legally represent his children , in case any of them be dead , other than such child , or children ( not being heire at law ) who shall have any estate by the settlement of the intestate , or shall be advanced by the intestate in his life time by portion , or portions equal to the share that shall by such distributions be allotted to the other children to whom such distribution is to be made ; and in case any child ( other than the heire at law ) who shall have any estate by settlement from the said intestate , or shall be advanced in his life time by the intestate by portion not equal to the share which will be due to the other children by such distribution as aforesaid , then so much of the surplusage of the estate of the intestate to be distributed to such child or children as shall have any such land , or settlement from the intestate , or were advanced in his life time , as shall make the estate of all the said children to be equal as near as can be estimated : but the heire at law notwithstanding any land that he shall have by descent or otherwise from the intestate is to have an equal share in the distribution with the rest of the children without any consideration of the value of the land which he hath by descent , or otherwise from the intestate . . and in case there be no children nor any legal representatives of them , then one moyetie of the said estate to be allotted to the wife of the intestate , the residue of the said estate to be distributed equally to every of the next of kindred of the intestate who are in equal degree , and those who legally represent them . . provided that there be no representatives amongst collaterals after brother and sisters children ; and in case there be no wife , then the estate to be equally distributed to , and amongst the children ; and in case there be no children , then to the next of kindred in equall degree of , or unto the intestate , and their legal representatives , and in no other manner whatsoever . . no such distribution shall be made till after one year after the intestates death , and every one to whom any share shall be allotted shall give bond with sureties in the said courts to secure the administrator pro rata , if any debts be afterwards recovered . . this act to continue for years and from thence to the next session of parliament . . executors shall have an action for a trespass done to their testator , as for his goods and chattells carried away in his life , and shall recover their dammage , in like manner as he , whose executors they are , should have done if he had lived . . executors of executors shall have actions of debt , account , and of goods carried away of the first testators , and execution of statute merchants , and recognisances made unto him , and shall also answer to others so far forth as they shall recover of the first testators goods , as the first executors should have done . . that part of the executors which take upon them the charge of a will , may sell any land devised by the testator to be sold , albeit the other part , which refuse , will not joyne with them . . if any person shall obtain any goods , or debts of an intestate , or releases or other discharge of any debt or duty ( which belonged to the intestate ) by fraud ( or by procuring the administration to be granted to a stranger of mean estate and not to be found , with intent thereby to obtain the intestates estate ) and not upon valuable consideration , or in satisfaction of some just debt answerable to the value of the goods so obtained , in such case such person shall be chargeable as executor of his own wrong , so far as the value of the goods , or debts so obtained shall amount unto : howbeit he shall also be allowed such reasonable deductions , as other executors , or administrators ought to have . fines . . afine shall after the ingrossing thereof be openly read and proclaimed in the common pleas , the same term , and there the three next terms after , upon four several days , and in the mean time all pleas shall cease . . a transcript of the fine shall be sent to the justices of assize of the county where the land lyeth , to be there also proclaimed at every assize holden there that year , and then also all pleas shall cease . . an other transcript thereof shall be also sent to the justices of peace of the same county , to be in like sort proclaimed at their four sessions holden that year : and both the justices of assize and peace shall make certificate of such proclamation made , the second return of the term then next following . . a fine so proclaimed and certified shall conclude all persons both privy and strangers ( except women covert , other than such women as the parties to the fine , persons under age , in prison , out of the realm , or out of sound mind ) if they pursue not their right , title , claime , interest , by way of action or lawful entry within years after the proclamations so made and certified as aforesaid . . the right of strangers which happens to come unto them after the fine is engrossed is saved , so that they pursue their right or title within years aster it so comes to them : and here an action against the pernor of the profits is maintainable . . if the parties to whom such right or title comes , be covert , under age , in prison , out of the land , or of non sane memory , they or their heirs have time to pursue their right or title , within years after such imperfections removed : so also have they in case they had right of title at the time of the fine levied . . fines at the common law have the same force they had before ; and a fine may be levied according to this statute or the common law , at the election of the parties . . every fine after the engrossing shall be proclaimed in the court the same term , and the next , four several days in every term , and in the mean time all pleas shall cease . . the proclamations being so made , the fine shall conclude all persons both privyes and strangers , except persons under age , covert , out of the realm , or not of sane memory , being not parties nor privyes to the fine . . the right and interest that any person or persons , ( other than parties ) hath , or have at the time of the fine engrossed , is saved , so that they or their heirs , pursue such their right or interest by action or lawful entry within years after the proclamation so made : so also is the right and interest saved , which accrues after the ingrossing of the fine , so that the parties having the same , pursue it within years after it so accrues ; and in this case the action may be brought against the pernor of the profits . . if at the time of the fine ingrossed , or of such accruer as aforesaid , the persons be covert , ( and no parties to the fine ) under age , in prison , out of the realm , or of non sane memory , they or their heirs have time to pursue their actions within years after such imperfection removed . . the exception , that none of the parties , nor any to their use had any thing in the lands at the time of the fine levied , this way or at the common law , at the pleasure of the parties . . fines at the common law have the same force they had before the making of this act , and a fine may be levied this way , or at the common law , at the pleasure of the parties . . all fines levied by any person or persons of full age , of lands intailed before the same fine , to themselves or to any of their ancestors in possession , reversion , remainder , or use , shall immediatly after the fine ingrossed and proclamations made , be a sufficient barre against them and their heirs , claiming only by such intail , and against all other claiming only to their use , or to the use of any heir of their bodies . . howbeit this act shall not barre the interest of any persons accrued , by reason of any fine levied by a woman , after her husbands death , contrary to the statute of h. . . . a fine levied by him who is restrained by any express act of parliament so to do , shall be void , notwithstanding this act. . this act shall not extend to any fine heretofore levied of lands now in suit , or heretofore lawfully recovered in any court by judgement , or otherwise : nor to any fine of lands intailed by the kings letters patents , or any act of parliament , the reversion thereof at the time of such fine levied being in the king. fraud . . all fraudulent conveyances of lands , tenements , hereditaments , goods or chattels , and all such bonds , suits , judgements , and executions , made to avoid the debt or duty of others , shall ( as against the party only , whose debt or duty is so endeavoured to be avoided , their heirs , successors , executors or assigues ) be utterly void ; any pretence , feigned consideration , or &c. notwithstanding . . every of the parties to such a fraudulent conveiance , bond , suit , judgement , or execution , who being privy thereunto shall wittingly justifie the same to be done bona fide , and upon good consideration , or shall alien or assign any lands , lease , or goods , so to them conveyed as aforesaid , shall forfeit one years value of the lands , lease , rent , common , or other profit out of the same , and the whole value of the goods , and also so much money as shall be contained in such covenous bond ; and being thereof convicted , shall suffer half a years imprisonment , without bail : and here the said forfeitures are to be divided betwixt the queen , and the party grieved . . common recoveries against the tenant of the freehold , shall be good notwithstanding this act ; and so shall all estates made for procuring of a voucher in formedon : neither shall this act extend to grants made bona fide , and upon good consideration , to persons not privy to such collusions . . every conveyance , grant , charge , incumbrance , and limitation , of use or uses , of , in , or out of any lands , or other hereditaments made to defraud any purchaser of the same , in fee , or taile , for life , or years , shall ( as against such purchaser only , and every other person lawfully claiming from , by or under him ) be utterly void ; the said purchaser having obtained the same for money , or some other good consideration . . every of the parties to such fraudulent conveyances , or being privy thereunto , who shall justifie the same to be made bona fide , and on good consideration , to the disturbance and hinderance of the purchasor , or of any other lawfully claiming from , by , or under him , shall forfeit one years value of the lands , or other hereditaments so purchased or charged , to be divided betwixt the queen and the party grieved , and being thereof convicted , shall suffer half a years imprisonment without bail . . conveyances made upon good consideration , and b●na fide , shall be good , notwi●hstanding this act. . if lands be first conveyed with clause , provision , or condition of revocation , determination or alteration , and afterwards sold or charged for money or other good consideration , before the first conveyance was revoked , altered , or made void , according to the power given thereby ; in this case such first conveyances shall be void against the vendee , and all others lawfully claiming from , by , or under him : howbeit no lawful mortgage , made bona side , without fraud , shall be impeached by his act. . all statutes merchant , and of the staple , shall within six months after this acknowledgement be entred in the office of the clerk of recognizances , taken according to the statute of h. . . and the clerk there ( upon shewing the same ) shall make entry thereof , for which he shall have d. and no more . . every such statute , which is not within four months after the acknowledgment thereof delivered to be entred accordingly , shall be void against the purchaser of the lands chargeable therewith , and against his heirs , successors , executors and assignes . . the said clerk shall within the said six months make entry of every statute to him delivered , as aforesaid , and shall indorse thereupon the day and year of such his entry with his own name , in pain to forfeit for every statute so brought unto him , and not entred as aforesaid , l. to be devided betwixt the queen , and the prosecutor . . the clerk shall take for the search of a statute but d. for every such search , in pain to forfeit to the party grieved twenty times so much as he takes above , to be recovered in any court of record by action of debt , &c. . provided , that this act shall not extend to make good any purchase made void by reason of any former conveyance , so as the party so making void the same , his heirs or assignes , were the first day of this parliament in actual possession of the lands , out of which any such purchase , lease , charge , or profit was made . habeas corpus . . if a corpus cum causa , or certiorari be granted out of the chancery to remove one that is in prison upon an execution at another mans suit , he shall be remanded . . no writ of habeas corpus , or other writ sued forth to remove an action , shall be allowed , unless it be delivered to the judge , or officer of the court , before the jury appear , and one of them be sworn . . no writ to remove a suit commenced in an inferior court shall be obeyed , unless delivered to the steward , &c. of the same court before issue or demurrer joined ; so as such issue or demurrer be not joined within six weeks after the arrest or appearance of the defendants . . an action or suit once remanded , shall never afterwards be again removed . . when the thing in demand exceedeth not l. the suit shall not be removed by any writ , save only by writs of error or attaint . . this act shall only extend to courts of record , where an utter barrester of three years standing is judge , recorder , steward , or &c. or assistant to such officer there , and not of councel in any action there depending . . neither shall this act extend to any action which cannot be tried in such inferiour courts . hue and cry. . the hundred where fresh suit shall cease , shall answer half the damages to the hundred where in the felony shall be committed , to be recovered in any court at westminster in the name of the clerk of the peace of the county wherein the felony was committed ; and here the death or change of the clerk of the peace shall not abate the suit . . when in this case damages are recovered against one or some few inhabitants of the hundred , and the rest refuse to contribute thereunto , two justices of peace ( qu. ) dwelling within , or near the same hundred , shall for the levying thereof , set a tax upon every parish within that hundred ; according to which , the constables and headboroughs of every town shall tax the particular inhabitans , and levy the money upon them by distress and sale of goods , and deliver the money levied to the said justices , or some of them . . no hundred shall be chargeable when any of the malesactors shall be apprehended , or when the action is not prosecuted within one year after the robbery committed . . no hue and cry shall be deemed legal , unless the pursuit be both by horse and foot. . no person robbed shall maintain an action in this case , unless with all convenient speed he makes his robbery known to some near town , village , or hamlet , and within dayes before the action brought , make oath before a justice of peace dwelling within or near the hundred where the robbery was committed , whether he know the parties that robbed him , or any of them ; and if he know , shall enter into sufficient bond before the same justice , to prosecute the person or persons so by him known , by indictment , or otherwise , according to law. inrollment . . bargains and sales to an use of inheritance of freehold must be by deed indented and inrolled within six months after the date thereof , in some court of record at westminster , or in the county where the land lieth , before the custos rotulorum , two justices of peace , and the clerk of the peace , or two of them , whereof the clerk to be one : and here the fee to be paid for such inrolment , when the land is not worth s. per an is s. and when it is more s. to be equally divided betwixt the justice or justices then present , and the clerk of the peace , who ought to inroll them in parchment , and to deliver them unto the custos rotulorum within one year after . . this act shall not extend to lands , tenements , or hereditaments in corporations , where an officer or officers there have lawfully used to inroll deeds or other writings . iustices . no lord nor other shall sit upon the bench with the justices of assize , in pain of great forfeiture to the king , and the justices there commanded not to suffer it . iudgment . iudgments given shall continue , and the parties for whom they are so given , and their heires shall be in peace until they shall be attaint , or error if any be . ley gager . in actions of debt upon the arrearages of an account , feigning ( to the intent to put the defendants from their law ) that the same was found before their apprentices or servants , as auditors assigned therein , it shall be in the judges discretion upon examination of the attorneys ( or whom else they please ) to receive the defendants to their law , or to trie the same by enquest . libell . a copy of a libell grantable in the ecclesiastical court shall be presently delivered upon the defendants appearance . limitation . . seisin in a writ of right shall be within years before the teste of the same writ . . in a mortdancester , cosinage , ayel , writ of entry sur disseisin , or any other possessory action upon the possession of his auncestor or predecessor , it shall be within years before the teste of the original of any such writ . . in a writ upon the parties own seisin or possession , it shall be within years before the teste of the original of the same writ . . in an avowry or cosinage , for rent suit , or services of the seisin of his auncestor , predecessoror , his own , or any other , whose estate he pretends to have ; it shall be within years before the making of such avowry or cognisance . . formedons in reverter or remainder , and scire facias upon fines shall be sued within years after the title or cause of action accrued and not after . . the party demandant , plaint ’ , or avowant that ( upon traverse or denier by the other party ) cannot prove actual possession , or seisin within the times above limited , shall be for ever after barred in all such writs , actions , avowries , cognizance , prescription , &c. . provided , that in any of the said actions , avowries , prescriptions &c. the parties grieved may have an attaint upon a false verdict given . . the statute of h. . c. . shall not extend to a writ of right , of advowson , quare impedit , assize of darrein presentment , jure patronatus , writ of right of ward , writ of ravishment of ward , nor to the seisor of the wards body or estate : but the time of the seisin to be alledged in such cases , shall be as it was at the common law before the making of the said statute . . all writs of formedon in descender , remainder , or reverter , for any title or cause now in esse , shall be sued within years next after this present session of parliament , and for any title or cause hereafter accruing , within years after such title or cause so accruing : otherwise such title shall be for ever barred , and the party claiming utterly excluded from entry . . none now having any right or title of entry into any mannors , lands , tenements or hereditaments , now held from him or them , shall thereinto enter , but within years next after the end of this session of parliament , or within years next after any other title accrued ; and none shall at any time hereafter make any entrie into lands , tenements , or hereditaments , but within years next after his or their right or title , which shall hereafter first descend or accrue to the same . . the titles of any infant , femme covert , non compos mentis , one imprison'd , or beyond sea , are saved so as they commence their suit within years after such imperfections removed . . all actions upon the case , ( other then for slander , ) actions for accompt ( other then such as concern merchandise ) actions of trespasse , debt , detinue , trover , and replevin , shall be commenced within years after this present session of parliament , or within years after the cause of suit , and not after . . all actions of trespass , of assault , battery , wounding , and imprisonment , shall be commenced within one year after this sessions , or within years after the cause of suit , and not after . . all actions upon the case for words shall be commenced within one year after this present session , or within years after the words spoken , and not after . . provided , that if in any such actions judgment be given for the plaint ’ , and the same be reversed by error , or a verdict pass for him , and upon motion in arrest of judgment it is given against him , or if the defend ’ be outlawed in the suit , and after reverse the outlawry , in these cases the plaint ’ , his heires , executors or administrators , may commence a new action within a year after such judgment reversed , or given against the plaint ’ , or outlawry so reversed , and not after . . the right of action in the cases abovesaid is saved to an infant , femme covert , non compos mentis , a person imprison'd or beyond sea , as they commence their suit within the times above limited respectively , after their imperfections removed . maintenance . . none shall buy any pretended right or title to any land , unless the seller hath taken the profits thereof one whole year before such bargain , in pain that both the buyer and seller shall each of them forfeit the value of the same land , to be divided betwixt the king and the prosecutor . . none shall unlawfully maintain any suit or action , retain any person for maintenance , imbrace jurors , or suborn witnesses , to the hindrance of justice , or the procurement of perjury , in pain to forfeit for every such offence l. to be divided betwixt the king and the prosecutor . . howbeit purchasing of a pretended title by him that is already lawfully possessed of the thing whereunto title is made , is lawful . . proclamations shall be made at the assises , of the statutes made against maintenance , champertie , embracery and unlawful retainers . . the offenders against this act shall be porsecuted within one year . market . fair. . every seller or exchanger of a horse in a fair or market , which being unknown to the toll taker , or book-keeper doth not procure one credible person that is well known unto him , to vouch the sale of the same horse ; also every false voucher , and the toll-taker , or book-keeper , that suffers such sale or exchange to pass , shall forfeit l. to be divided betwixt the queen and the prosecutor : and besides , the sale of such horse shall be void . . the names of the buyer , seller and voucher , and the price of the horse , shall be enter'd in the toll-book , and a note thereof deliver'd to the buyer under the toll-takers or book-keepers hand , for which the buyer shall pay d. . notwithstanding such sale and voucher as aforesaid , the right owner or his executors may redeem a stolne horse , if they claim him within moneths after the stealing , at the parish , or corporation , where he shall find him , and make proof by sufficient witnesses before the next justice of peace in the country , or before the head officer of a corporation , that the horse was his , and repay to the buyer such price for the horse as the same buyer shall upon his own oath before such justice or officer , testifie to have paid for him . nonsuit . . where before justices of assise the parties are adjourned for some difficultie in law upon the matter found , in this case the plaint ’ shall not be nonsuited , albeit the verdict pass against him . . unless the plaint ’ named in any writ , bill , or process in b. r. or c. b. shall put into the court a declaration against the persons arrested , in some personal action , or ejectione firmae of lands , or tenements , before the end of the term next sollowing after appearence , then a nonsuit for want of a declaration may be entred against the plaint ’ in the said courts respectively . obligation . sheriffes and other officers shall take no bond of any arrested person but for appearance , and to themselves onely , and shall not take for it more then d. and bonds otherwise taken ( colore officii ) shall be void . office. . none shall bargain or sell any office or deputation , or any part thereof , or receive or take any money , fee , reward , or other profit , directly or indirectly , or any promise , agreement , bond or assurance , to receive any such profit for the same ; which office shall concern the administration or execution of justice ; or the receipt , controlment or payment of any of the kings money or revenue , or any accompt , aulnage , auditorship , or surveying of any of the kings lands , or any of his customes , or any administration or attendance in any custome-house , or the keeping of any of the kings towns , castles or fortresses , ( being places of strength or defence ) or any clerkship in any court of record , in pain that the bargainee thereof shall lose his place , and the bargainor be adjudged disable to execute the same ; and every such bargain and agreement shall be void . . provided , that this act shall not extend to any office or inheritance , or for the keeping of a park , house , mannor , garden , chace , or forest , nor to the two chief justices , or justices of assize , but that they may grant offices as they did before the making of this act : also all acts done by an officer ( removeable by force of this statute ) shall be good in law until he be removed . . an action brought against a justice of peace , maior or bailiffe of a corporation , headborough , portreeve , constable , tithingman , or collector of subsidies or fifteens , for any thing done by reason of their several offices , both they and all their assistants may plead the general issue , and yet give the special matter in evidence . . here if the verdict pass for the defendant , or the plaint ’ be nonsuit or discontinue his suit , the defendant shall be allowed double costs , to be recover'd as costs in other cases given to the defend ’ use to be recover'd . . the statute of jac. . is confirmed , and church-wardens , sworn-men and overseers of the poor , together with their assistants are to be comprehended within the purview of the same statute . . an action brought against any the said officers , their deputies or assistants , shall be layed in the county where the fact was committed , and not elsewhere . . the unnecessary charges and tedious attendance in passing the accounts of sheriffs being very burthensome , it is enacted , that sheriffs shall not keep tables of receipt for any more then their own family , or retinue , nor shall send any presents to any judge of assise nor give any gratuity to any officer , nor have more then men-servants , nor under in any county in england , nor under in wales , upon forfeiture of l. for every such default ▪ proviso this clause not to extend to the sheriffs of london or middlesexs , nor westmerland , or any sheriff of a city and county , or town and county . . sheriffes in england shall not be charged to answer any illeviable seisure , farme , rent , debt , or other thing whatsoever , which was not writ or process to them to be levied , and the persons , lands and tenements , of which the same is leviable particularly expressed , but shall be discharged without petition , plea , or other trouble or charge whatsoever . . all seisures made before the jac ▪ r. . and yet remaining upon the sheriffs accompts , and all seisures and debts pardoned , are discharged and to be left out of their accounts , and no process to issue for levying the same , nor any other rent or farme not particularly set forth , or which hath been unanswered for years past , and all other dead farmes and seisures and all desperate illeviable and unintelligible debts , shall be removed out of the annual roll and sheriffs charge in the exannual roll , there to remain until revived by commission . . the several remembrancers shall enroll and certifie the engrosser of the great roll , all debts , chargeable upon sheriffs by their returns , into the exchequer upon writs of fi . fac . levari fac . capias , and other process , and all fines and amerciaments already set before the first day of february . and all debts , fines and amerciaments hereafter set before the next term after returns of such fines and amerciaments set , that so they may be charged and comprehended within quietus est , upon pain of l. upon the officer for every default , the one moytie to the king , the other to the party grieved . . and none shall be sheriff unless he have lands in the same county sufficient to answer the king and his people . . every sheriff having obtained a quietus est ( as by the act jac. c. . he might ) the sheriff , his heires , executors lands and tenements , shall be clearly discharged of all accompts and debts whatsoever , unless he be prosecuted and judgment given within years after the same ; and every officer by whose default process shall be sent contrary to this act , shall incurr the same penalty aforesaid . . this act not to extend to the counties of chester , lancaster , and durham , or the counties of wales , being counties palatine , as to the manner of their accompting , who are to accompt before the respective auditors as aforesaid . . not to extend to enjoyne the remembrancer to transcribe to the engrosser of the great roll any inquisitions or seisures , but such as have been formerly charged in the foreigne accompts of sheriffs , but inquisitions upon attainder and other forfeitures to be put in charge as formerly . . not to exclude his majesties remembrancer from writing forth process for his majesties debts , duties , outlawries , or other charge or process of leva : fa. at any persons suit to levy issues of lands seised , or venditioni exponas for goods , for any debt to the king , or upon outlawry , or to alter any pleading touching the same . . that no debt , duty , fine , or amerciament or seisure charged in the great roll of the pipe by any record of the kings remembrancer , nor any proceedings thereupon be stayed , compounded , or discharged , by order of any judgment entred in the said office of the kings remembrancer , where the original of such debt or charge remaines . . if any debts , seisures , fines , or other be not levied and payd upon process of summons of the pipe , the clerke of the pipe shall the next term after return of such process certifie the office of the kings remembrancer , who shall issue process for levying the same . . auntient and lawful fees belonging to the kings remembrancer not abridged by this act . the act to continue to the end of the first sessions of the next parliament and no longer . partition . . ioyntenants and tenants in common of any inheritance in their own right , or in right of their wifes , in any mannors , lands , tenements or hereditaments , may be compelled to make partition by writ de partitione facienda as coparceners are compellable to do , and this writ shall be pursued at the common law . . that after such partition made they shall have aid of one another and of their heires to dereigne warranty and to recover pro rata as coparceners use to doe . . ioyntenants , and tenants in common , that have inheritance or freehold in any mannors , lands , tenements or hereditaments , shall be also compellable to make partition by the said writ to be pursued upon their case : howbeit such partition shall not be prejudicial to any but the parties to such partition , their heires and assignes . pleading . . all pleas which shall be pleaded in any court whatsoever , within the realm , shall be pleaded , shewed , depended , answered , debated , and judged in the english tongue , and entred and enrolled in the latin. howbeit the laws and customes of the realm , as also the terms and process shall be holden and kept , as before this time hath been used . . and exemplification of the inrollment of the letters patents by h. . e. . q. m. p. and m. q. el. or any of them , since the th of februrary in the h. . or hereafter to be granted by the queen , her heires , or successors , shall be of as good force to be pleaded , or shewed in behalfe of the patentees , their heires , executors and assignes , and every of them , and every other person , or persons , having any estate from , by or under them , or any of them , as well against the queen , her heires and successors , and all other persons whatsoever , as if the letters patents themselves were produced . policies of assurance . . the lord chancellor , or lord keeper shall award a standing commission ( to be yearly renued , or as often as to him shall seem meet ) for the hearing and determining of all such causes arising , and policices of assurance , as shall be entred in the office of assurance in london . . this commission shall be directed to the judge of the admiraltie , the recorder of london , doctors of the civil , common lawyers , and grave or discreet merchants , or to of them ; which commissioners or the greater part of them shall have power to hear and determine all such causes in a brief and summary course as to their discretion shall seem meet , without formality of pleadings or proceedings . . the commissioners have also power to summon parties , examine witness upon oath , and commit to prison such as contemn or disobey their orders , or decrees . they shall meet and sit once a week at the least in the office of assurance , or in some other convenient publick place , for the execution of the said commission , and no fees shall be there exacted by any person whatsoever . . if any be grieved by their sentence or decree , he may exhibit his bill in chancery for the reexamination thereof ; so as he first satisfie the sentence so awarded , or deposite with the commissioners the sum awarded , and then albeit he be imprisoned he shall be enlarged : and here the lord chancellor , or keeper hath power to reverse or affirme every such sentence or decree , and in case it be affirmed to award the party assured double costs . . no commissioner shall meddle in the execution of the commission wherein he is party , assurer , or assured , not until he hath taken his corporal oath before the major , and court of aldermen to proceed uprightly and indifferently between party and party : only the judge of the admiralty is excused from that oath . . upon some defects in the statute of el. c. . it is enacted that the lord chancellor , or keeper of the great seal , shall yearly issue out one standing commission , authorising commissioners or any of them , whereof a doctor of the civil law or a barrister of the common law be alwayes one ( of years standing ) to make a court of policies of assurance and an act , as any five before might have done . . the said commissioners or any of them impowered to summon parties and witnesses , and upon contempts and delays in the witnesses upon first summons and reasonable charges : and in the parties upon second summons to imprison offenders , or to give every commissioner having taken the oath before the lord major of london , to proceed uprightly in the execution of the said commission . . commissions may issue out of the court of admiralty for examining witnesses beyond sea , or in remote place by direction of the said commissioners , or any three of them , and decrees may be made against the body and goods , and against the executors , &c. and execution accordingly , and assess costs of suit as to them shall seem meet . . any of the said commissioners may administer an oath to any witness legally summoned , so as the adverse party have timely notice , to the end witnesses may be truly examined . . provided , that in no case execution be against body and goods for the same debt . . provided , that an appeal may be to the chancery as in the said former act. powers . . leases made by tenant in tail , or by him who is seised in the right of his wife , or church , they being of full age at the time of such lease made , shall be good and effectual in the law against the lessors , their wives , heirs and successors . . the statute shall not extend to any lease made of lands in the hands of any farmer by force of any old lease , unless such old lease expire within a year after the making of the new , nor to any grant to be made of any reversion of any manors , lands , &c. nor to any lease of any manors , lands , &c. which have not been let to farm , or occupied by farmers years before ; such lease made , nor to any lease to be made without impeachment of waste , nor to any lease to be made for above years or lives from the day of the making thereof ; and that upon every such lease there be reserved so much yearly as hath been usually paid for the lands so let within years next before such lease made , and the reversioners of the manors , lands , &c. so let , after the death of such lessor , or his heirs , may have such remedy against such lessee , his executors and assignes , as such lessor might have had against such lessee . . that all leases made by the husband , of manors , lands , &c. ( being the inheritance of the wife ) and she to seal to the same , and the rent shall be reserved to the huband and wife , the heirs of the wife , and here the husband shall not alien or discharge the rent , or any part thereof longer than during the coverture , unless it be by fine levied by husband and wife . . this act shall not extend to give liberty to take more farms or leases than might have been taken before this act , nor to any parson or vicar to make any lease otherwise than they might have done before . . all leases for years made within three years before the of april in the of h. . by writing indented under seal , by any person of full age , sane memory , and not lawfully contracted , or covert-baron , of any manors , lands , &c. wherein he or they have an estate of inheritance to his or their own use , at the time of the making thereof , and whereof the lessee or lessees , or their a signes , now have the possession by force of such lease or leases , and no cause of re-entry or forfeiture thereof had or made , shall be good in law against such lessors , their heirs and successors ; so as so much yearly rent be reserved for the same as was paid for the same within years next before the making of such lease or leases , or else such lease or leases to be of no other force than they were before the making of this act. . no fine , feoffement , or other act done by the husband only of the inheritance of free-hold of the wife , shall make any discontinuance , or prejudice the wife or any other who is to enjoy it after her decease , the fines levied by the husband and wife only excepted . . this act shall not give liberty to the wife , or her heirs , to avoid any lease hereafter to be made of the wifes inheritance by the husband , wife , for years or under , or three lives ; whereupon the accustomed yearly rent for years before is reserved according to the tenor of this act . . this act shall not extend to the making good any lease made by any ecclesiastical person , which are made void by authority of parliament , or by any such person or other now attainted of treason . . all estates made by any arch-bishop , or other bishop , of any manors , lands , &c. parcel of the possessions of their bishoprick , or united or appertaining thereunto , to any person or persons , body politique or corporate , other than to the queen , her heirs and successors , and other than for the term of years and lives , from the time of such estate made , and whereupon the accustomed yearly rent or more shall be reserved and payable yearly during such term for years or lives , shall be void to all intents and purposes . . all leases , conveyances , or estates made by any master or fellows of any colledge , dean and chapter of any cathedral or collegiate church , master or gardian of any hospital , parson , vicar , or any other having any spiritual or ecclesiastical living , or any houses , lands , titles , or other hereditaments , being parcel of their colledge , cathedral church , chapter , hospital , parsonage , vicarage , or other spiritual promotion , or belonging thereunto , other than for years , or lives , from the making thereof , and whereupon the accustomed yearly rent shall be reserved and payable yearly during the term , shall be utterly void to all intents and purposes . . this act shall not make good any lease or other grant against the private statutes of any colledge or collegiate church . . this act shall not be extended to any lease hereafter to be made upon surrender of a former lease , or by reason of any covenant or condition contained in any former lease , and so continuing , so as the lease to be made contain not more years than the residue of the years of such former lease , nor any less rent than is thereby reserved . . all leases made by such persons as are mentioned in el. . where another lease is in being not to be expired , surrendred or ended within three years next after the making such new lease , shall be void , and all bonds and covenants for the removing any such lease contrary to this act or the said statute of el. . shall also be void ; howbeit this act shall not extend to any lease or leases heretofore made to any such person or persons . . upon complaint to the ordinary , and sentence given upon any offence committed by the incumbent against the statute el. . whereby he ought to lose the profits of his benefice ; the ordinary within two months after such sentence given , and request made by the church-wardens , or one of them , shall grant the sequestration thereof to such inhabitant or inhabitants there , as to him shall seem convenient , and upon default in the ordinary , it shall be lawful for every parishioner there to retain his tythes , and for the church-wardens to take the profits of the glebe , and other rents and duties of such benefice to be employed to the use of the poor , until the sequestration shall be commited by the ordinary , and then the church-wardens or parishioners are to accompt to him or them to whom such sequestration shall be committed , and he or they shall imploy the said profits to such uses as by the said statute of el. c. . are appointed , in pain to forfeit the double value of the profits withholden , to be recover'd in the ecclesiastical court by the poor of the parish . . all assurances of bishops lands to the king shall be void . process . . like process shall be hereafter had in actions upon the case sued in the kings bench , or common pleas , as in actions of trespasse or debt . . original writs may be sued upon personal actions in the fleet , and an habeas corpus granted to bring them to the barre to answer any suit and declaration ; being put in , and the defend ’ not pleading judgment may be entred by nihil dicit , and the prisoner charged in execution upon notice thereof to the warden of the fleet by rule of court. prohibition . . none shall be cited to appear out of the diocesse or peculiar jurisdiction where he or she liveth , except by some ecclesiastical , or other person within the diocesse , or other jurisdiction wherein he is so cited , for some offence or cause commited , or omitted , contrary to right or duty , or upon an appeal or other lawful cause , or when the judg dares not , nor will not cause him to be cited , nor is any way party to the suit , or at the instance of the inferiour judge to the superiour , where the law civil , or canon doth allow it , and all this in pain to forfeit double damages to the party grieved , and l. to the king , to be divided betwixt him and the prosecutor . . the arch-bishop may cite for heresie in any diocesse within his province , upon consent or neglect of the bishop or judge there . . this act shall not restrain the jurisdiction of the prerogative court for probate of testaments . . the ecclesiastical judge shall take but d. for a citation upon the pains aforesaid . recognisance . . the chief justices of the kings-bench and common pleas , or either of them , or ( in their absence out of the terme ) the major of the staple at westminster , and the recorder of london , jointly together , shall have power to take recognisances for the payment of debts in this forme following . noverint universi per praesentes nos a. b. and d. c. teneri & firmiter obligari joanni stile in cent ’ libr ’ sterling solvendis eidem ioanni , aut su● cert ’ attornat ’ hoc script ’ ostend ’ haered ’ vel execut ’ suis in tal ’ fest ’ &c. proxim ’ futur ’ post dat ’ praesent ’ , & si defecero , vel defecerimus in solutione debit ’ praedict ’ volo & conced ’ . vel sic . volumus & concedimus quod tunc currat super me , haered ’ , & execut ’ meos . vel , super nos & quemlibet nostrum , haered ’ & execut ’ nostros poena in statuto stapul ’ de debit ’ pro marchandisis in ead ’ emptis recuperand ’ , ordinat ’ & provis ’ . dat ’ tali die , anno regni regis &c. . such obligation shall be sealed with the seal of the recognisor or recognisors ; as also with such a seal as the king shall appoint for that purpose , and with the seal of one of the chief justices , or the seals of the said major of the staple and recorder , and every of the said justices ; and the said major and recorder shall have the custody of one such seal to be appointed by the king as aforesaid . . the clerke of the recognisances ( to be also appointed by the king ) or his sufficient deputie or deputies shall write and inroll such obligations in two several rolls indented , whereof one shall remain with such of the said justices , or with the said major and recorder , that take such recognisance , and the other with the writer thereof : also such clerke , or his deputie or deputies , shall be dwelling or abiding in london , and shall not be absent from thence by the space of two days in pain to forfeit l. . the clerk or his deputie ( at the request of the creditors , their executors or administrators ) shall certifie such obligations in the chancery under his or their seal . . the recognisees of such obligations , their executors and administrators , shall have in every point , degree and condition , against the recognisors , their heires , executors and administrators , such processe , execution , commodity , and advantage , as hath been had upon an obligation of the statute of the staple , and shall also pay like fees for the same . . here the recognisor so bounden or otherwise grieved by such an obligation , shall have like remedy by audita querela , and all other remedies in law ; as upon obligations of the statute of the staple . . upon the sealing of the processe for the execution of every such obligation , the king shall have a halfe-penny in the pound . . the tenant by such a recognisance , his executors or administrators , being outed shall have like remedy , upon an obligation of a statute of the staple . . the justices , or the major and recorder's fee for taking such a recognisance , is s. d. the clarks fees is as much , and his fees for certifying such obligation is d. and none of them shall take more in pain of l. . from henceforth the major or constable of the staple shall take no recognisance of the statute of the staple , in pain of l. except between merchants , being free of the same staples , for merchandise of the said staple between them lawfully bought and sold . . the forfeitures abovesaid are to be divided betwixt the king and the prosecutor , and proved by information , action of debt , bill or plaint , in which no essoin , &c. shall be allowed . recoveries . . a termer for years may satisfie a feigned recovery had against them in the reversion , and shall retain and enjoy his term against the recoverer , his heirs and assignes , according to his lease . . also the recoverer shall have like remedy against the termer , his executors or assignes , by avowry or action of debt , for rents and services reserved upon such lease , and due after such recovery , and also like action for waste done after such recovery , as the lessor might have had if such recovery had never been . . no statute of the staple , statute merchant , or execution by elegit , shall be avoided by such feigned recovery , but such tenant shall also have like remedy to falsifie such recoveries as is here provided for the lessee for years . . no feigned recovery hereafter to be had by assent of parties against any tenant or tenants in tail of any lands , tenements or hereditaments , whereof the reversion or remainder at that time of such recovery had shall be in the king , shall bind or conclude the heirs in tail , whether any condition or voucher be had in any such feigned recovery or not : but that after the death of every such tenant in tail , against whom such recovery shall be had , the heirs in tail may enter , hold and enjoy the lands , tenements and hereditaments so recover'd according to the form of the gift of tail , the said recovery notwithstanding . . and here the heirs of every such tenant in tail , against whom any such recovery shall be had , shall take no advantage for any recompence in value against the voucher and his heirs . . this act shall not extend to prejudice the lessee or lessees of such tenant in tail made by writing indented of any manors , lands , &c. for years , or lives , or under , whereupon the accustomed rent or rents is or shall be yearly reserved during the said term or terms , but the same lessee or lessees shall enjoy his or their term or terms , according to the statute of h. . . this act notwithstanding . . all recoveries had or prosecuted by agreement of the parties , or by covin , against tenants by curtesie , tenants in tail , after possibility , &c. for term of life or lives , or of estates determinable upon life or lives , or of any lands , or tenements , or hereditaments , whereof such particular tenant is so seised , or against any other with voucher over of any such particular tenant , or of any having right or title to any such particular estate , shall from henceforth , as against the reversioners , or them in remainder , and against their heirs and successors , be clearly void . . this act shall not prejudice any person that shall by good title recover any lands , &c. without fraud , by reason of any former right or title : also every such recovery had by the assent and agreement of the person in reversion or remainder , appearing of record in any of the queens courts , shall be good against the party so assenting . rents . . the executors or administrators of tenant in fee-simple , in fee-tail , or for term of life , of rent-services , rent-charges , rent-secks , and fee-farms , upon whom any such rent or fee-farm was due and unpaid at the time of his death , shall have an action of debt for all the arrerages thereof against the tenant or tenants that ought to have paid them to their testator , or against the executors or administrators of such tenant or tenants ; and shall also distrain for the said arrerages upon the lands charged therewith , so long as they continue in the seisin or possession of such tenant in demesne , or of any other person proclaiming by or from him , in like manner as their testator might have done : and the said executors or administrators shall likewise for the same distress lawfully make avowry upon the matter aforesaid . . this act shall not extend to any manor , lordship , or dominion in wales , or the marches thereof , where the inhabitants have used time out of mind to pay to every lord or owner of such manors , &c. at their first entry into the same , any summe or summes of money , for the discharge of all duties , forfeitures and penalties wherewith the inhabitants were chargeable to any of their said lords , ancestors or predecessors , before their such entry . . if any person hath in right of his wife any estate in fee-simple , fee-tail , or for term of life , in any such rents or fee-farms , and the same happen to be due and unpaid in his wives life , such husband , after the death of his wife , his executors and administrators shall have an action of debt for the said arrerages against the tenant of the demesne that ought to have paid the same , his executors or administrators , and shall likewise distrain for the same , and make avowry , as he might have done if his wife were living : the like power hath tenant pur autre vie for arrerages due and unpaid in the life time of cestuy que vie . repleader . . in all actions after issue had , there shall be judgement given , notwithstanding any mispleading , lack of colour in sufficient pleading , or jeofail , miscontinuance , discontinuance , misconveying of process , mis-joyning of issue , lack of warrant of attorney of the party against whom the issue shall be tried , or any other default or negligence of any of the parties , their councellors or attorneys . . provided , that every attorney shall deliver , or cause to be delivered his or their sufficient and lawful warrant of attorney , to be entred of record for every action or suit wherein he is named attorney , to the officer or his deputy ordained for the receit and entring thereof in the same term , when the issue of the said action is entred of record , or before , in pain to forfeit l. to the king , and to suffer imprisonment at the discretion of the justices of the court , where such action depends . replevin . . for more speedy and effectual proceeding upon distress and avowries for rents , enacted , that when any plaintiff in replevin by plaint or writ returned , removed or depending in any of the kings courts at westminster , the defendant making a suggestion in nature of an avowry or conusance for such rent , to ascertain the court of the cause of the distress ; the court upon his prayer shall award a writ to the sheriff of the county where the distress was taken , to enquire by the oathes of good and lawful men of his bailywick touching the summe in arrear at the time of such distress taken , and the value of the goods or chattels distrained ; and thereupon dayes shall be given to the plaintiff , or his attorney in court , of the sitting in such inquiry ; and thereupon the sheriffs shall inquire of the truth of the matter contained in such writ by the oath of good and lawful men of his county ; and upon return of such inquisition , the defendant shall have judgement to recover against the plaintiff the arrerages of such rent , in case the goods or cattle distrained shall amount unto that value ; and if they amount not to that value , then so much as the value of the said goods and cattle so distrained shall amount unto , together with full costs of suit , and shall have execution thereupon by fieri facias , or elegit , or otherwise as the law shall require . and in case such plaintiff shall be non-suit after conusance or avowry made , and issue joyned , or if the verdict shall be given against such plaintiff , then the jurors that are impannelled or returned to enquire of such issue , shall at the prayer of the defendant enquire concerning the summe of such arrears , and the value of the goods and cattle distrained . and thereupon the avowant , or he that makes conusance shall have judgement for such arrerages , or so much thereof as the goods or cattel distrained amounts unto , together with his full costs , and shall have execution for the same by fieri facias or elegit , or otherwise , as the law shall require . . and if any judgement in any of the courts aforesaid be given upon demurrer , for the avowant , or him that maketh conusance for any rent , the court shall at the prayer of the defendant award a writ to enquire of the value of such distresse : and upon returne thereof judgment shall be given for the avowant , or him &c. for the arreares alledged to be behind in such avowry or conusance , if the goods , or cattel so distreined amount to that value : and if they shall not amount to that value , then for so much as the said goods or cattel so distreined shall amount unto , together with his full costs of suit : and shall have like execution as aforesaid . . provided that in all cases aforesaid , when the value of the cattel distreined as aforesaid shall not be found to be to the full value of the arreares distreined for , that the party to whom such arreares were due , his executors or administrators , shall from time to time distrein again for the residue of the said arreares . resceipt . . if any tenant for life , in dower , by the law of england , or in taile after possibility of issue extinct , be impleaded , and in the reversion come into the court and pray to be received to defend his right , at the day that the tenant pleadeth to the action or before , he shall be then received to defend his right , and after such receipt the business shall be hasted as much as may be by the law without any delay whatsoever of either side : and therefore here days of grace shall be given by the discretion of the judges between the demandant and the party so received , and not the common day in plea of land , unless the demandant will thereunto consent , lest the demandants may be too much delayed , because they must plead to two adversaries . . howbeit they in the reversion who so pray to be received , shall find sureties for the issues of the tenements demanded for the time that the demandants be delayed after the plea determined between the demandants and tenants , if the judgement pass for the demandant against them in the reversion , as well where the receipt is counterpleaded , as where it is granted . simonie . . if any person or persons having election or voice in the nomination or choice of any person to have place in any church , colledge , school , hospital , hall , or other society , shall take any reward directly or indirectly , or any promise or assurance thereof directly or indirectly , for such their election or voyce , that then their election shall be void : and that then such person that hath power to dispose thereof may dispose of the same as if the person before elected were actually dead . . if any person of such societies take any reward or assurance thereof directly or indirectly for resigning such place , the party giving it shall forfeit the double value thereof , and the party taking it shall be uncapable of such place , and also then the party to whom such place appertaines may dispose thereof as aforesaid . . at every election this statute and the statutes which concern election shall be read . . the forfeitures which shall be by this statute , shall be divided between the queen and the prosecutor . . if any person for any reward or assurance thereof directly or indirectly taken , doe present or collate any person to any benefice with cure of souls , dignity , prebend or living ecclesiastical , or give or bestow the same for any corrupt consideratio , nevery such presentation , collation , gift and bestowing , and every admission , institution or investiture and induction thereupon , shall be voyd , and from thenceforth the queen , her heires and successors may present or collate thereunto , or give or bestow the same for one turn only . . none shall give or take any such reward , or take , or make any assurance , in pain to forfeit the double value of one years profit of such spiritual promotion , and the person taking such promotion shall be disabled in law to enjoy the same . . if any person for any such reward or assurance thereof , except lawful fees , admit , institute , instal , induct , invest , or place any person in any spiritual promotion , the party so offending shall forfeit the double value of one years profit of such promotion , and such institution &c. shall be void ; and then the patron or other person to whom the next gift appertaines , may present or collate thereunto . . howbeit no lapse shall incurr upon any such violence untill monthes after notice given by the ordinary to the patron . . if any incumbent of any benefice with cure of souls shall corruptly resigne or exchange the same , or shall corruptly take for resigning or exchanging the same , directly or indirectly , any benefit whatsoever , both the giver and the taker thereof shall lose the double value of the benefit so had , to be divided between the queen and the prosecutor . . penalties inflicted by the ecclesiastical law are not taken away by this statute . . if any person shall directly or indirectly , take any reward or other profit or assurance thereof , ( lawful fees only excepted ) to make a minister , or to give licence to preach , he shall forfeit l. and the party so made a minister l. and if the party so made a minister be instituted , inducted , or installed into any benefice within years after , such induction &c. shall be void , and the party having the gift thereof may present or collate , as if he were dead . . the forfeitures of this act shall be divided between the queen and prosecutor . spiritual persons . residence . . no spiritual person shall take to farme ( to himself , or any other for his use ) any lands or other hereditaments for life , year or at will , in pain to forfeit l. for every moneth he so continues the same , to be divided betwixt the king and the prosecutor . . this act shall not extend to any spiritual person for taking to farme any temporalties ( during the time of vacation ) of any archbishopricks , bishopricks , abbeys , priories , or collegiate , cathedral or conventual churchs , nor to any such person who shall render or make traverse upon any office , concerning his freehold . . no spiritual person shall ( by himself or any other for his use ) buy , to sell again , any cattel , victual or merchandise whatsoever , in pain to forfeit treble the value thereof , to be divided betwixt the king and the prosecutor , and every such bargain shall be void . . howbeit a spiritual person may buy horses , mares , cattle or other goods for his necessary use and employment , and in case they happen not to fit for his turn , may sell them again , so as this be done without fraud or covin . . also abbots , priors , abbesses , prioresses , provosts , presidents and masters of colledges and hospitals , and all other spiritual governours and governesses of any houses of religion , lands of the yearly value of marks , or under , may use and occupy so much thereof for the maintenance of their houses , as they or any of their predecessors have done within years last past , notwithstanding this act. . likewise spiritual persons not having sufficient glebe or demesne lands in right of their churches or houses , may notwithstanding this act , for the only expences of their houses , and for their carriages and journeys , take in farm other lands , and buy and sell corn and cattel for the only manurance and pasturage of such farms , so as if it be done for such purposes only without fraud or covin . . if any person , having a benefice with cure of souls of the yearly value of l. or above , accept another with cure of souls , and he be instituted and inducted in possession of the same , immediately upon such possession thereof the first benefice shall be adjudged void , and then it shall be lawful for the patron thereof to present another , as if the incumbent had died or resigned ; any license , union , or other dispensation to the contrary notwithstanding . . every license , union or other dispensation obtained contrary to this act shall be void , and none shall obtain from rome or elsewhere any license , union , or toleration to receive any benefice with cure , in pain of l. to be divided between the king and prosecutor . . provided , that every spiritual person of the kings councel may purchase license or dispensation to keep three benefices with cure ; and the chaplains of the king , queen , kings children , brethren , sisters , uncles or aunts may so keep each of them two . . also an archbishop and duke may have each of them six chaplains ; a marquess and earl five ; a vicount and other bishop four ; the chancellor , baron , and every knight of the garter three ; every dutchess , marchioness , countess and baroness , being widows , two ; the comptroller and treasurer of the kings houshold , the kings secretary and dean of his chappel , the kings almoner and master of the rolls , each of them two ; and the chief justice of the kings bench , and warden of the cinque ports , each of them one : and each of the said chaplains may purchase a licence or dispensation to keep two benefices . . likewise the brothers and sons of temporal lords born in wedlock , may purchase such license or dispensation to keep as many benefices with cure as the chaplains of a duke or arch-bishop ; and the brethren and sons of a knight born in wedlock may keep two . . provided , that the aforesaid chaplain shall exhibit ( where need shall be ) letters under the sign or seal of the king , or other their lord and master , testifying whose chaplain they be , or else not to enjoy such plurality of benefices . . also doctors and bachellors of divinity , doctors of law , and bachellors of law canon , admitted to their degrees by any of the universities of this realm and not by grace only , may purchase such license to keep two benefices with cure . . and because arch-bishops must use ( at the consecration of bishops ) eight chaplains , and bishops ( at giving of orders , and consecration of churches ) six , every of them may have two chaplains above the number limited . . every spiritual person that is advanced ( by colour of this act ) to keep more benefices with cure than is above limited , shall incurr the penalty above provided by this act. . every spiritual person promoted to any arch-deaconary , deanary , or dignity in a monastery or cathedral church , or other church conventual or collegiate , or being beneficed with any parsonage or vicarage , shall be personally resident and abiding upon his said dignity , prebend or benefice , or at one of them at least , in pain to forfeit for not being resident by the space of a month together or of months ( to be accounted at several times in one year ) l. to be divided betwixt the king and the prosecutor . . none shall obtain from rome ( or elswhere ) any licence or dispensation for non-residence , in pain of l. to be forfeited as aforesaid . . howbeit this act shall not extend to any spiritual person in the kings service beyond sea , or upon any pilgrimage beyond sea , during the time that he shall be in the kings service , or upon the said pilgrimage , nor to any scholar abiding for study without fraud at any university within this realm , nor to any of the king or queens chaplains in ordinary , neither yet to any of the abovesaid chaplains which shall daily attend upon their lord or masters housholds , so long as they so attend without fraud , nor to the master of the rolls , or dean of the arches , the chancellor , or commissary of any arch-bishop or bishops , the masters of chancery , or advocates of the arches ( being clergy men ) so long as they execute their offices or places , or to any spiritual person being compelled by the injunction of the lord chancellor , or the kings council , to daily appearance to answer the law , so long as he shall be so enjoyned . . also a spiritual person ( being the kings chaplain ) may accept ( of the kings gift ) any benefices to what number soever without incurring the penalty of this act ; and also the king may licence his chaplains for non-residence upon their benefices , notwithstanding this act . . no spiritual person shall take in farme any parsonage or vicarage in pain to forfeit s. for every week he or any other ( for his use ) so occupies the same , and also ten-times the value of the profit or rent that he makes thereof ; both which forfeitures are to be divided between the king and prosecutor . . provided , that no deanary , arch-denary , chancellorship , treasurership or chantership or prebend in any cathedral , or collegiate-church , nor parsonage that hath a vicar endowed , nor any benefice perpetually appropriate , shall be taken to be a benefice with cure of souls . . no spiritual person or any other for his use shall keep any tun-house or brew-house in pain to forfeit for every moneth so keeping the same l. to be divided as aforesaid : howbeit he may make a brew-house for his own private use . . every duchess , countess , marchioness or baroness , being widdowes , shall retaine their priviledges concerning chaplains , notwithstanding intermarriages with other persons of lower degree . . all spiritual persons having possessions in right of their houses ( above the value of markes ) may keep so much thereof as may be necessary for the maintenance of their houshold , notwithstanding this act , or may take a dwelling house with orchards and gardens for their dwelling , so as by colour thereof they take not liberty to be non-resident . . every spiritual person above the age of years , ( the chancellor , vice-chancellor , comessary , rulers of colledges and halls , doctors of the chair , and readers of divinity in either of the universities onely excepted ) shall be resident upon one of their benefices according to the statute of h. . . upon pain therein provided for non-residence . . also every beneficed person under the age of years abiding in either of the universities shall not enjoy the priviledge of non-residence provided by the said statute of h. . . unless he be present at ordinary lectures both in the house and schools , and in his proper person performe the exercises according to the statutes of the university where he so abides . . this statute shall not extend to any reader of any publick lecture in divinity , law , physick , philosophy , or humanity , or any of the literal sciences , nor to interpreters or teachers of the hebrew , chaldee , or greek tongues in either of the universities , nor yet to any person who shall repair thither to proceed doctor in divinity , law , physick , for the time of their proceedings there , according to the statutes of the said universities . trial. . in any action where the life or death of any person who hath remained beyond sea , or hath absented himself by the space of years , shall come in question between the lord , or reversioner or tenant , the said reversioner or lessor may take exception to any of the jurors that his real estate is held by lease or coppy for lives , who upon proof shall be set aside as in other challenges . . a tales de circumstantibus may upon enquest for the king or queen by any authorised thereunto , or assigned by the court , or upon request by the prosecutor or his atturney , and by the command of the justices of assise or nisi prius in a suit commenced upon a penal statute . . in case the plaint ’ , or defend ’ refuse or forbear to pray a tales , it shall be granted by the justices of assise in england , and by those of oyer , and terminer in wales , chester , lancaster , and durham , at the prayer of the defend ’ or tenant , and that as well in suits upon penal laws as upon other tryals . vses . . where any person or persons stand or are seised of any honours , mannors , lands , tenements , rents , services , reversions , remainders , or other hereditaments to the use , confidence or trust of any other person or persons , or of any body politik , by reason of any bargain , sale , feoffment , fine , recovery , covenant , contract , agreement , will , or otherwise , in every such case , every such person and persons and body politick having such use , confidence and trust in fee-simple , fee-taile , for life or years , or otherways , or any use , confidence or trust in remainer or reversion , shall stand and be seised , deemed and adjudged to be in lawfull seisure , estate and possession of and in the honours , castles , &c. with their appurtenances of and in such like estates as they have in use , trust or confidence of or in the same : and the estate , right , title and possession of such person or persons as are seised of any lands , tenements or hereditaments to the use , confidence or trust of any such person or persons , or body politick , shall be deemed and adjudged to be in him or them , that have any such use , confidence or trust , of any such quality , manner or form or condition as they had before in or to the use , confidence or trust , that was in them . . when divers persons are so seised to the use , confidence or trust of any of themselves , they amongst them that have such use or trust shall likewise have the seisin , estate and possession in such quality , manner and condition as they had the use or trust . . howbeit the right , title &c. of all other ( except the person so seised to any use or trust ) is saved , and all former right , title &c. is also saved to them . . where any be seised to any use or intent , that another shall have a yearly rent out of the same lands cestuy que use of the rent shall be deemed in the possession thereof , of like estate as if he or she had the use , and shall distrain for non-payment of the said rent , and make avowrys , conusances and justifications , and use all other remedyes therein , as if the rent had been actualy granted to cestuy que use . vtlagary . . in every action personal , where an exigent shall be awarded , a writ of proclamation shall also be awarded and issue out of the same court of the same teste , and return with the exigent , and shall be delivered of record and directed to the sheriff of the county , where the defend ’ at the time of the exigent was dwelling , and shall contain the effect of the same action . . the sheriff shall thereupon make proclamations , viz. one at a full county , another at the sessions , and the last one moneth at least before quint. exact . by virtue of the exigent at or near the church or chappel door of the parish , where the defend ’ was dwelling at the time of awarding the exigent , upon a sunday after divine service and sermon , or in case there be no sermon , after divine service ; and if he dwell in no parish , then in the parish next adjoyning to his place of abode ; and all outlawries otherwise had shall be void . . the officer for making the exigent and proclamation may take such fees for the same as are limited by the statute of h. . . and the sheriff for making proclamation at the church door shall have d. . in real actions , after summons upon the land ( days at least before the return thereof ) proclamation of the summons shall be made upon a sunday , in forme aforesaid , in the parish where the land lies ; which proclamation shall be returned with the names of the summoners . . if the summons be not so proclaimed , no grand cape shall be awarded , but an alias and pluries summons , until a summons and proclamation be made according to this act. . before allowance of a writ of error , or reversing of an outlawry by plea or otherwise , the defend ’ in the original action shall put in bail , to appear and answer the plaint ’ , and also to satisfie the condemnation , if the plaint ’ begin his suit before the end of two terms next after the allowance of the said writ , or avoiding the outlawry . finis . notes, typically marginal, from the original text notes for div a -e h. . c. . el. c. . jac. c. . el , c. . notes for div a -e h. . c. . h. . c . h. . c. . h. . c. . el. c. . notes for div a -e r. . c. . h. . c. . notes for div a -e h. . c. el. c. . . el. c. . notes for div a -e h. . c. . h. . c. . h. . c. . notes for div a -e car. . sess . . c. . notes for div a -e el. c. . jac. c. . ja. c. . car. . c. . notes for div a -e h. . c. . marriage notes for div a -e h. . c. . c. . sess . . c. . delays in execution . notes for div a -e iac. c. . notes for div a -e h. . c. . notes for div a -e h. . c. . el. c. . jac. c. . car. . sess . c. . , car. . c. notes for div a -e e. . c. . notes for div a -e r. . c. . confirmed by h. . c. . notes for div a -e h. . c . confirmed by h. . c. . h. . c. . el. c. . el. c. . notes for div a -e h. . c. . confirmed by h. . c. . notes for div a -e h. . c. . , h. . c. . notes for div a -e h. . c. . notes for div a -e , h . c. . notes for div a -e h. . c. . notes for div a -e h. . c. . car. . c. . notes for div a -e r. . c. . car. . c. . , car. . c. . ca● . . c. . death after verdict . car. . c. . exchequer . notes for div a -e el. c. . notes for div a -e ● h. c. . jac. c. . jac. c. . . . c. c. . car. . c. . notes for div a -e el. . c. . h . c. . , car. . c. . e. . c. . e. . c. . h. . c. . notes for div a -e r. . c. . h. . c. . h. . c. . notes for div a -e el. c. . el. c. . notes for div a -e h. . c. . corpus cum causa . fl. c. . jac. c. notes for div a -e el. c. . notes for div a -e h. . c. . notes for div a -e r. . c. . justice of assise . notes for div a -e h. . c. . notes for div a -e h. c. . notes for div a -e h . c. . notes for div a -e h. . c. . p & m. sess . . c. . jac. c. . notes for div a -e h. . c. . notes for div a -e el c. . notes for div a -e h . c. . car. . sess . . c. . notes for div a -e h. . c. . notes for div a -e e. c . grant. jac. c. . pleading . costs . jac. c. . car. . c. . sheriffs . notes for div a -e h. . c. h. . c. . notes for div a -e e. . c. . el. c. . notes for div a -e el c. . car. . c. . notes for div a -e h. . c. . a fair leases . eliz. c. . el. c. . el. c. . jac. c. . notes for div a -e h. . c. . car. . sess . . c. . notes for div a -e h. . c. . citation . notes for div a -e h. . c. . notes for div a -e h . . & h. . c. . notes for div a -e h. . c. . notes for div a -e h. . c . notes for div a -e ca● . . c. . notes for div a -e r. c. . notes for div a -e el. c. . notes for div a -e h. . c. . h. . c . notes for div a -e car. . c. . challenge . , p. m. c. . tales . el c. . notes for div a -e h. . c. . notes for div a -e el. c. . reports, or, new cases with divers resolutions and judgements given upon solemn arguments, and with great deliberation, and the reasons and causes of the said resolutions and judgements / collected by john march ... england and wales. court of king's bench. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing m estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) reports, or, new cases with divers resolutions and judgements given upon solemn arguments, and with great deliberation, and the reasons and causes of the said resolutions and judgements / collected by john march ... england and wales. court of king's bench. march, john, - . england and wales. court of common pleas. [ ], , [ ] p. printed by m.f. for w. lee, m. walbanke, d. pakemen, and g. beadel, london : . reproduction of original in huntington library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law reports, digests, etc. -- england. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - judith siefring sampled and proofread - judith siefring text and markup reviewed and edited - pfs batch review (qc) and xml conversion reports : or , new cases ; with divers resolutions and judgements given upon solemn arguments , and with great deliberation . and the reasons and causes of the said resolutions and judgements . collected by john march of grayes inne , barrester . london , printed by m. f. for w. lee , m. walbanke , d. pakeman and g. beadel . m.dc.xlviii . reports , easter-term , º caroli , in the kings bench. it was agreed by justice iones and justice barckley ( the lord chief justice and justice crook being absent ) that if the sheriff do arrest a man upon mesne processe , and return a cepi corpus , and that the defendant was rescued ; that no action lieth against the sheriff : but if the party be taken upon an execution , an action upon the case lieth against him ; and so is the express book of e. . , . br. escape . upon which book justice iones said , that it was adjudged in this court , as above is said . . it was agreed by the court , that if a man in pleading derive an estate from another man , and doth not shew what estate he had from whom he deriveth his estate , that is a good cause of demurrer . and justice iones said , that if a man claim a rent by grant out of the land of any other man , it is not sufficient for him to say , that such an one was seised and concessit ; but he ought to express of what estate he was seised : so is dyer . but in this case it was agreed , that the shewing of what estate , &c. ought to be material to the maintenance and support of the estate which he claimeth , otherwise it is not necessary . . an action upon the case for words , was brought by one who was journey-man and ●ore-man of a shoomakers-shop , which was his living and livelihood , for these words , viz. it is no matter who hath him , for he will cut him out of doors . and farther the plaintiff did aver , that the common acceptance of these words amongst shoomakers , is , that he will begger his master , and make him run away : and shewed that he was particularly endamnified by speaking of those words . and the court was clear of opinion , that the action would lie . and these rules were taken and agreed . for some words an action will lie without particular averment of any damage ; as to call a man thief , traytor , or the like ; these are malum in se : and some words will not bear action without particular averment of some damage ; as to say , such a one kept his wife basely , and starved her ; these words of themselves will bear no action : but if the party of whom the words were spoken were in election to be married to any other , and by speaking of these words is hindred ; there with such averment they will bear an action . it was farther agreed , that the words ought to be spoken to one that knows the meaning of them , otherwise they are not actionable , as in the principal case , they were spoken to a shoomaker ; but if they had been spoken to any other who knew the meaning of them , it had been all one : and therefore scandalous words which are spoken to one in welsh , or any other language , which the party to whom they are spoken doth not understand , are not actionable . and it was agreed , that some words which are spoken , although of themselves they are not actionable , yet being equivalent with words which are actionable , they will bear an action . and therefore it was said by justice iones , that in york-shire ( as i remember ) straining of a mare , is as much as buggering : and because these do amount to as much , with averment they will bear action . and all words which touch a man in his livelihood and profession will bear action . and the opinion of the court also was , that the averment ought to be , that in this ( and shew it specially ) the plaintiff was damnified : and so it was agreed upon these reasons , that the action did lie . . the opinion of the court was upon a judgment given there , there ought to be two scire facias , one against the principal , the other against the bail ; but one only is sufficient in the common pleas , and that two nichils returned do amount to scire feci . . there was a contract made at newcastle , that a ship should sail from yarmouth to amsterdam , and there was an action of debt brought upon the contract at newcastle , and it was adjudged that the action would not lie : and the difference was taken betwixt a particular and limited jurisdiction , as in this case newcastle is ; and a general jurisdiction , as one of the courts at westminster hath : for in the first case , no particular jurisdiction shall hold plea of a thing which is done in partibus transmarinis , although the original ( as the contract in the principal case ) be made in england ; but contrary in case of general jurisdiction , as any the courts at westminister have . . the custome of london is , that any man in london may pass over , or put over his apprentices to any other man within the city . king and cokes case . . william marshal , and other bailiffs had an execution ( viz. a capias ad satisfaciend ' ) against coke and others ; which bailiffs came to coke's house , and lay one night in his out-houses privily ; and the next morning they came to his dwelling-house , and gave him notice of the execution ; but coke shut the doors of his house close , so as the bailiffs could not enter ; whereupon they brake the glass-windows and the hinge of the door , endeavouring to enter : whereupon coke commanded them to be gone , or he would shoot them : notwithstanding which , they did continue their ill-doing ; whereupon coke shot marshal one of the bailiffs : and whether this was manslaughter or murder , was the question . and rolls argued , that it was not murder for these causes . . because the act of the bailiffs in breaking of the glass and the hinge of the door was an unlawful act , and was at their p●ril . where the kings officer may break the house to serve any mean process or execution , the differences are such as are in semaynes case , c. . part , . . betwixt real and personal actions : in real actions they may break the house to deliver seisin to him who recovereth ; contrary in personal actions . . there is a difference in the case of the king , and of a common person ; where the king is party , in some cases his officers may justifie the breaking of a house , but not in the case of a common person . e. . . e. . . rep. ▪ rep. . and therefore if they could not justifie the breaking of the house at the suit of a common person ; then in the principal case , they did a thing which was not warranted by law : and therefore the killing of one of them was not murder . but clearly , if the bailiffs had lawfully executed their office , then it had been murder . . it was not murder , because the person was in his house , which is his castle and defence , which is a place priviledged by the law. . ass. . e. . , . besides , the party is not bound to tarry till the bailiffs come in and beat him . h. . . h. . . h. . . ass. pl : . . this authority which is given to the kings officer , is given by the law , and if he execute it according to the law , the law will protect him ; but if he exceed the priviledge given him by the law , then all he doth is illegal , and he loseth its protection . and he resembled it to the carpenters case . c. . part . farther , one may pretend he hath such a warrant , when he hath it not , of purpose to rob , or do some other mischief . and it was agreed by all the justices , nullo contradicente , that it was not murder , but that it was manslaughter ; for this reason especially , because the officer was doing an unlawful act , not warranted by law ; and therefore it was at his peril if he were killed . and farther , upon this difference there ought to be malice in fact or in law to make murder ; but in this case there is none of them , for it is apparent that there was no malice in fact : and there is no malice implied , for then it ought to be where a man kills another without any provocation , or the minister of justice in the due and lawful execution of his office , which is not our case ; for here he did an unlawful act at the time he was killed ; and therefore it was not murder , but manslaughter . there was a case tried at the sessions in the old-baily , which was thus : one lovell had two maid-servants , and one of them without his knowledge , had received into the house a chare-woman , who ( all being in their beds ) by her negligence let a thief into the house , and afterwards called out thieves , thieves ; and afterwards lovell came out of his bed with a sword in his hand , and the chare-woman calling to mind that she was there without his privity or his wifes , hid her self behind the dresser , and lovell's wife espying her there , cried out thieves , thieves ; for which lovell came and ran her into the brest with his sword. and the opinion of the justices at the old-baily , and also of all the justices of the kings bench , was , that it was neither murder nor manslaughter : not murder , because there was no forethought malice ; not manslaughter , because he supposed her to be a thief ; and if she had been a thief , then it was clear that it was not manslaughter . . it was resolved in the chancery ( as the judges of the kings bench said ) that where the son is of full age , and is ravished , that the father shall not recover damages , because the son being of full age might marry himself without the consent of the father : and that was the reason given , as i conceive ; and the case was said to be sir francis lees case . . the book of canons is , that the parson may elect one church-warden , and the parishioners another . . there can be no surrender without the consent of the reversioner . . it was libelled in the ecclesiastical court for these words , thou art a drunkard , or usest to be drunk thrice a week . and thereupon prohibition was prayed and granted : and it was said and agreed , that so it was adjudged betwixt vinior and vinior , in this court. the case in dyer , . b. where the presentee was refused , because he was a common haunter of taverns , &c. was by justice barckley denied to be law , and so agreed by justice iones , the lord chief justice and justice crooke being absent : but justice barckley was utterly against the prohibition . . because the action in the ecclesiastical court is only pro salute animae . and . because that drunkenness is in their articles , and presentable . but justice iones granted a prohibition , and said that linwood said well , that if all things which are against the law of god ( or words to that effect ) should be tried in the ecclesiastical court , the jurisdiction of the temporal court should utterly be destroyed . . if there be an indictment of forcible entry , if it appear that the plaintiff had seisin at the time of the writ brought , there can be no writ of restitution ; for the statute ●aith , if he enter with force , or keep him out with force : but yet in that case the king shall have his fine . and there was an indictment , which was a principal case at bar , which was , that the defendant adtunc & adhuc doth keep the possession forcibly , whereas the plaintiff was in possession . and thereupon a writ of restitution was awarded by reason of the word [ adhuc ] e. . . it was adjudged , that where there is forcible entry , and reteiner with force , that both are punishable , although the statute of h. . . be in the disjunctive . . descent of a copy-hold shall not take away entry . there ought to be a custome to enable the lord of a mannor to grant a copy-hold in reversion . . in the council of marches of wales , they proceed according to directions ▪ and they cannot exceed them ; and they 〈…〉 with freehold , for it is not within their 〈…〉 . and they cannot hold plea of debt above fifty pound● . . an assignment of rent to a woman , out of land of which she is dowable by word , is good ; but if she be not dowable of the land , then the assignment by word is not good , and void ; because that in the first case it is according to common right , but in the last , not . h. . . in a writ of error to reverse a judgment in an action of debt upon an arbitrament , the error assigned was this : that two did refer themselves to arbitrament of their two several arbitrators ; and there is no word of submission : that the same is error , and there was error in the entry of the judgment ; the entry of which was in this manner ; consideratum est , and per curiam is omitted and left out . and for these errors , the judgment was reversed . smith's case . . one said of him , thou art forsworn , and hast taken a false oath at hereford - assises , against such a one , naming the party . and the opinion of the court ( the chief justice and justice crooke being absent ) was against the action . but they conceived that the action would have lied , if the defendant had said , thou art forsworn , and hast taken a false oath at the assises , against such an one , with averment that he was sworn in the cause . . it was said at the bar , that it was adjudged in this court in appletons case , that where a man said unto another by way of interrogatory , where is my piece thou stolest from me ? that it was actionable . justice iones remembred this case , where one said , j. s. told me , that j. n. stole a horse , but i do not believe him . this with averment that i. s. did not say any such thing , would bear an action . justice barkley said , that an action was brought upon these words , you are no thief ? and that these words with averment , which imply an affirmative , will bear an action . . it was said to a merchant , that he was a cousening knave . and the opinion of the court was , ( the chief justice and justice crooke being absent ) that the words were not actionable , because he doth not touch him in his profession , for the words are too general : but it was said , that to call him bankrupt was actionable . and mall cases where a man is touched in his profession , the words are actionable . but to call a lawyer a bankrupt , is not actionable . justice iones said , that serjeant heath brought an action for these words : one said of him , that he had vndone many ; and it was adjudged actionable ; because he touched him in his profession . . kingston upon hull is a particular and limited jurisdiction , and they held plea of a bond which was made out of their jurisdiction ; and thereupon a capias was awarded against the obligor , who was arrested upon it , and suffered by the sheriff to escape : and the opinion of the court was clear , that no escape would lie against the sheriff , upon the difference in the case of the marshalsea , that if the court hold plea of a thing within their jurisdiction , but proceed erroneously , that it is avoidable by error ; but if they have not jurisdiction of the cause , all is void , and coram non iudice . h. . and e. . acc. so in the principal case : for they held plea of a thing which was out of their jurisdiction , and therefore the whole proceeding being void , no action can lie against the sheriff , for there was no escape . . where a man is outlawed , and the outlawry reversed , notwithstanding the original doth remain , and the cause that the original was determined was the outlawry ; and now cessante causa cessat effectus . . a man made a lease for years , with exception of divers things , and that the lessee shall have conveniens lignum non s●●ccidendo , &c. vendendo arbores , &c. now the lessee cut down trees , and the lessor brought an action of covenant : and the opinion of the court was , that the action would lie , and that it is as a covenant on the part of the lessee , because the law gives him reasonable estovers , and by this covenant he abridgeth his priviledge . . justice iones said , and so it was agreed by the court , in what case soever there is a contract made to the testator or the intestate , or any thing which ariseth by contract , there an action will lie for the executor or administrator ; but personal actions die with the testator or intestate . . the administrators of an executor shall not sue a scire facias upon a judgment given for the testator , because the testator now died intestate , because there is no privity . and so it hath been many times adjudged . rep. . a. rep. . b. the earl of oxford and waterhouse case , in a writ of error to reverse a fine . . waterhouse levied a fine , the earl of oxford pleaded that he was beyond sea at the time of the fine levied . waterhouse replied , that he came here into england in august , within the five years ; and upon that they were at issue . the jury found , that he came over in iuly . and notwithstanding the opinion of the court was clear , that the writ of error did not lie : for although the jury have found that he came over in iuly ; yet the substance of the matter is , that he was in england , so as he might have made his claim ; and therefore the fine should bar him . and justice barckley compared it to the case of eliz. dyer . b. which case is a quaere in dyer , but resolved in the rep. . a. a man brought debt against an heir , who pleaded that he had nothing by descent . the plaintiff pleaded that he had assets in london , and the jury found assets in cornwal , and good ; for the substance is , whether he had assets or not . . if a nobleman who is not a baron or earl of this realm , in an action brought against him , or by him , be named knight , and earl of such a place , it is good , because that although he cannot be sued , or sue another , by the name of earl , baron , &c. yet by the name of knight he may , and that is sufficient . . writ of error was brought here , to reverse a judgment given in ireland , it is a supersedeas to the execution : for although the record it self is not sent over , for fear of losing the same in the water or otherwise , yet a transcript is made thereof , which is all one . and justice barckley compared it to the case where a writ of error is brought in this court to reverse a fine in the common pleas , there the record it self is not sent , but a transcript thereof , because we have not a cirographer to receive it , but the transcript is all one . sir john compton's case upon the statute of winchester , ed. . and eliz. of robberies . . sir iohn compton knight , brought an action against the hundred of olison ( or the like name ) for a robbery done upon red-hill in the county of surry , within the aforesaid hundred , and the robbery was done upon his man , and five hundred and ten pounds was taken from him . and in this case it was agreed by the justices , that although there be a remisness or negligence in the party who was robbed , to pursue the robbers , or that he did refuse to lend his horse to make hue and cry ; yet this doth not take away his action , nor excuse the hundred , if notice be given with as much convenient speed as may be , as the statute of eliz. speaks , for them to make hue and cry. and although the party who was robbed , doth not know the robbers at the present time , and thereof takes his oath before a justice of peace , as the statute of eliz. hath provided ; and afterwards comes to know them , and so he affirm , yet this doth not take away his action . and it was resolved also , that notice given in one hundred five miles from the place where he was robbed , is sufficient ; and the reason is , because that the party who is a stranger to the country , cannot have conusance of the nearest place or town . chief justice : that notice given at one town , and hue and cry levied at another , is good . and the jury found for the plaintiff : and thereupon a quaere was made by one who was of counsel with the hundred , whether such persons who become inhabitants after the robbery , and before the iudgment , whether they should contribute ? and justice barckly said , that all who are inhabitants at the time of the execution , should pay it . . a vicar cannot have tithes but by gift , composition , or prescription : for all tithes de jure do appertain to the parson . . a man was bound to the good behaviour , for suborning of witnesses . plowden against plowden . . plowden the son brought trespass against plowden the father , for taking the plaintiffs wife cum bonis viri . and the case was , that he did reject and eject his wise without giving of her alimony : for which she had sentence in the high commission-court ; and the defendant took those goods for the alimony of the wife . and justice barckley said , that the defendant might plead , not guilty . lister against hone , in trover and conversion for a hawk . . judgment was given for the plaintiff , but it was moved in arrest of judgment , because it was not said in the declaration , that it was a tame hawk . dyer eliz. . b. and e. . acc. and here it was said , that the words of the declaration shew that it was a wild hawk ; for the words are , for taking accipitricem suum , anglicè vocat ' a ramish fawlcon ; and it was said that ramish , is as much as to say , inter ramos agens ; but that was denied : for a ramish hawk is a fowl hawk , by which the contrary is implied , that it was tame . and here it was farther said for the defendant , that if [ reclamato ] be omitted , [ de bonis suis propriis ] will not help it . but it was said in affirmation of the judgment , that although [ reclamato ] be omitted , yet , that [ de bonis suis propriis ] will help it : and justice barckley with all the justices ( except the chief justice , who was absent ) did agree very strongly , that the judgment should be stayed ; because that a hawk is ferae naturae , and although it be tamed , yet if it fly away , and hath not animam revertendi , then occupanti conceditur . vide hen. . and for the words , de bonis suis propriis , they do nothing , for the party had but a right of possession , and not of property : and if it be , it is but a qualified property , as rep. . b. he agreed , that if a man hath a wild hawk in his possession , and another man takes it out of his possession , trespass will lie ; but if it fly away , then capiat qui capere potest : and thereupon judgment was stayed . parkinson against colliford and others , executors of a sheriff . . the case was , that judgment was given against another man at the plaintiffs suit in debt , in the common pleas , and upon that a writ of error was brought in the kings bench , and the judgment affirmed ; and upon that a fieri facias directed to the sheriff , who levied the mony , and died , the writ being not returned , and thereupon debt was brought against his executors : and these exceptions were taken . . that the writ of fieri facias was not returned , and therefore the sheriff should not be charged in debt ; but otherwise if it had been returned . . that no debt lieth against the sheriff , although it had been returned . . admit that it would lie against himself , yet it will not lie against his executors , because it is a personal wrong , and dieth cum persona . . that the fieri facias was awarded out of this court , and it doth not appear whether it were awarded after the record removed into this court or not . justice barckley , with whom all the other judges did agree , was of opinion , that debt would lie against the sheriff where he sells goods upon a fieri facias , for now he is debtor in law , and the defendant discharged against the plaintiff , and ●●e may plead it ; and therefore it is reasonable that the defendant should be answerable to the plaintiff , and he took the difference betwixt seisin of goods only , and where the sheriff seiseth and selleth them : for till sale no debt will lie against him . and it was said , that accompt will lie against him ; and if accompt , by the same reason , debt . as to the return of the writ , he said that the sheriff is not compellable to make it , and therefore it 's nothing to the purpose ; and the difference stands , where the sheriff returns a jury , where not : in case of elegit the writ ought to be returned , but not in case of fieri facias , as is h. . clerk of the hampers case . farther , i conceive that it will lie against the executor , and it is not like the cases which are personal , where the action moritur cum persona : but here the goods came to the executors , and therefore it is reason to charge them . and it is not like the case in dier , eliz. . a. where it is said , an action of debt will not lie against the executor of a keeper , nor an escape , for there the body comes not to the executor : and this very difference may be collected out of dier in the place aforesaid ; and the difference will stand where there is a personal wrong done to him , and where not . and for the exception , that it doth not appear whether the fieri facias was brought after the record removed or not : to that they said una voce , that it appeareth that it was upon these words of record , viz. that the record was brought hither , and here remained ; and it is not needful to shew , that errour was brought , &c. justice iones : i conceive , that debt will lie against the sheriff , because the sheriff had it delivered to him to deliver over . and if i deliver mony to deliver over , debt will lie for him to whom it ought to be delivered . so in this case . and because also the defendant is discharged , and may plead the same , and therefore there is reason to charge the sheriff . farther , i conceive also , that it will lie against the executors : and i shall take this difference , where the wrong is ex maleficio , for there it dieth with the person ; and where ex contractu , for there it doth not die with the person . if i deliver goods to a man , and he di●th , an action of trover will lie against his executors . and here the sheriff could not have waged his law , for the debt is brought upon matter of record , upon which wager of law lieth not , but upon simple contract . and the sheriff hath here made himself debtor in law upon record . justice crook : it is reason to charge the sheriff , because the defendant is discharged , and may plead that his goods were taken in execution by the sheriff in satisfaction of the same debt . and the executors may be charged , because no wager of law lieth , because the debt is here brought upon matter of record . and he agreed with justice iones in the difference betwixt maleficium and contractum . and therefore they did all conceive that the action would lie . and in spekes case in the common pleas , it was voted , that the action would lie against the sheriff . . in a habeas corpus , the case was thus : a man would erect a tavern in birchin-lane ; and the mayor and communalty for his disobedience , because he would not obey them , but would erect a tavern there against their wills , they knowing the same to be an unfit place , did imprison him . and the opinion of the court was , that he should be remanded , because that the mayor and communalty had authority over him , and they might appoint him a place in which he might erect his tavern . for it is a disorderly profession , and not fit for every place . and it was adjudged in this court , that a brewhouse ought not to be erected in fleet-street , because it is in the heart of the city , and would be annoyance to it . and if one would set up a butchers shop , or a tallow-chandlers shop in cheap-side , it ought not to be , for the great annoyance that would ensue . and therefore the mayor and communalty may redress it . and therefore the party was remanded , and was advised by the court to submit to the government of the city . note , the recorder certified the custom , that the mayor might appoint a place . . upon a recovery in a court-baron , against one , he offered here to wage his law. and justice barckley doubted whether wager of law would lie in such case : to which justice iones said , yes ; and barckly agreed hereunto , because the recovery was in a base court , and not in a court of record . vide e. . . no antient mill is tithable ; but mills newly erected shall pay tithes , by the statute of e. . . meade against axe , in a writ of error to reverse a iudgment . . the case was : axe brought an action against meade for these words spoken of the plaintiff , a dyer , by the d●fendant , thou art not worth a groat : and the plaintiff added , that these words amongst citizens of such place where they were spoken , have the common acceptation , and doth tant amount as the calling of him bankrupt . the errors which were assigned by meade plaintiff in the writ of error were , . because it is added , that the words were spoken inter diversos ligeos , and doth not say citizens of the place where they have such acceptation . . because that the judgment is , consideratum est , and the words per curiam left out . and the court was clear , that for these two errors the judgment should be reversed : but the court was clear of opinion , that the words of themselves are not actionable , and that the averment in this case was idle and to no purpose , because the words of themselves imply a plain and intelligent sense and meaning to every man. and it was compared to the cases , where there is no latine for words , there where words of no signification are put to express them , there they ought to be explained by an anglicè ; but where the words are significant , there needs not any anglicè . now if you will explain significant words under an anglicè , contrary to the meaning and true intendment of the word it self , the anglicè is void : so in our case of averment . the reason which was conceived wherefore the words of themselves are not actionable , because that many men in their beginnings are not worth a groat , and yet their credit is good with the world . but if he had laid specially , that he was damnified , and ha● lost his credit , and that none would trust him , upon this special matter , the words would be actionable . bonds case . . in trespass , the plaintiff declared , that the defendant entred in his land , and did cut down and carry away two loads of grass in the plaintiffs soil , in a certain piece of ground , in which the trespass was supposed to be done , to strow the floor of the church ; and that he cut two load● there , to estrew the floor of the church , and did not say , that it is the same trespass , &c. and it was adjudged error : but the court was clear , that the prescription for cutting of grass to estrew the church , was good ; because it was but in the nature of an easement . and so to have a washing-place in the land of another ; and so the custom here in london , to shoot in the land of another , and so for the inhabitants of a town to have a way over the land of another to their church . but mr. rolls who moved the case at the bar , said , that it was adjudged , that inhabitants of a town by custom , should have an easement over the freehold , or in the freehold of a stranger , but not profit apprender : but , as i remember , the plaintiffs freehold lay near the church , and for that reason the court might conceive the same to be but an easement . vide h. . cited by justice iones . vid. gatewoods case , rep. . b. conysbies case . . upon the lease of an house , the lessee covenanted that he would repair the house with convenient , necessary and tenantable reparations . the lessor brought covenant , and alleaged a breach of the covenants , in not repairing for want of tiles , and dawbing with morter , and did not shew that it was not tenantable . and the opinion of the court was , that he ought to have shewed it ; for the house may want small reparations , as a tile or two , and a little morter , and yet have convenient , necessary and tenantable reparations . . a writ of error was brought , and the error assigned was , want of pledges : and the judgment was reversed , although it was after verdict . and so was it adjudged in dr. hussies case , and young and youngs case , in this court ; and the reason was given , because that otherwise the king should lose his amercement . . fish in the river are not titheable , if not by custome . . two referred themselves to arbitrement , and the arbitrators arbitrate , that one of them should pay a certain sum to the other ; and the other in consideration thereof should acquit him of a bond , wherein they both were bounden to a third person in a lib. & eo circiter : and it was objected , that the arbitrators had arbitrated a thing incertain , by reason of these words , eo circiter . but the opinion of the court was , that there was sufficient certainty , because that in this case it doth not lie in their power to know the direct sum , and because a small variation is not material : but if they ( as in salmons case rep. ) will arbitrate that one shall be bound in a bond to another , and not express in what sum , the same is utterly void , for the incertainty . difference was taken where the arbitrators arbitrate one party to do a thing which lieth in his power , and where not , without the help of a third person ; there the arbitrament is void : and in the principal case , the difference was taken by the court , where the bond is forfeit , and the penalty is incurred , and where not , or the day of payment is not incurred , there payment at the day is a good discharge and acquittance , but where it is incurred , it is not . but justice iones said , that he might compel the obligee upon payment , although the bond was forfeit , to deliver the bond by subpoena in chancery ; or that he suffer an action to be brought against him , and then to discharge it , and pay it . goodman against vvest , debt upon the statute of eliz. cap. . . there was an action brought against the plaintiff in the common pleas , who procured process to issue against the defendant , for his testimony in his cause , and a note of the process was lest at the defendants house , being sixty miles from london , and twelve pence to bear his charges , which the party did accept . and the party who served the process promised the defendant sufficient costs . and here mr. iones , who was of counsel with the defendant , took three exceptions . . because the process was not served upon the defendant , as the statute requires , but a note only thereof , and it being a penal statute , ought to be taken strictly . . there was but d. delivered to the defendant at the time of the serving of the process ; which is no reasonable sum for costs and charges according to the distance of place , as the statute speaks : and therefore the promise that he would give him sufficient for his costs afterwards is not good . . the party who recovers by force of this statute ought to be a party grieved and damnified , as the statute speaks , by the not appearance of the witness : and because the plaintiff hath not averred , that he had loss thereby by his not appearance , therefore he conceived the action not maintenable . for the first , the court was clearly against him , because it is the common course to put divers in one process , and to serve tickets , or to give notice to the first persons who are summoned , and to leave the process it self with the last only ; and that is the usual course in chancery , to put many in one subpoena , and to leave a ticket with one , and the label with another , and the writ with the third ; and that is the common practice , and so the statute ought to be expounded : but if there be one only in the process , there the process it self ought to be left with the party . for the second , the court did conceive , that the acceptance should bind the defendant ; but if he had refused it , there he had not incurred the penalty of the statute . for he ought to have tendred sufficient costs according to the distance of the place , which d. was not , it being miles distant . but for the third and last exception , the court was clear of opinion , that the action would not lie for want of averment , that the plaintiff was damnified for the not appearance of the defendant . and so it was adjudged that the plaintiff nihil capiat per billam . . the opinion of the court was : that whereas one said of another , that he will prove that he hath stollen his books ; that the words are actionable : for they imply an affirmative , and are as much as if he had said , that he hath stollen my books . and so if i say of another , that i will bring him before a iustice of peace ; for i will prove that he hath stollen , &c. although the first words are not actionable , yet the last are . molton against clapham . . the defendant upon reading affidavits in court openly in the presence and hearing of the justices and lawyers said , there is not a word true in the affidavits , which i will prove by forty witnesses ; and these words were alledged to be spoken maliciously . and yet the court was clear of opinion , that they will not bear action . and the reason was , because they are common words here , and usual where an action is depending betwixt two , for one to say , that the affidavit made by the other is not true , because it is in defence of his cause . and so it was here . the defendant spake the words upon the reading of the affidavits in a cause depending betwixt the plaintiff and the defendant . and therefore if i say , that j. s. hath no title to the land ; if i claim or make title to the land : or if i say , that j. s. is a bastard , and entitle my self to be right heir , the words are not actionable , because that i pretending title , do it in defence thereof . and justice barckley said , that there are two main things in actions for words , the words themselves , and causa dicendi ; and therefore sometimes , although that the words themselves will bear action , yet they being considered causa dicendi , sometimes they will not bear action . now in our case causa dicendi was in his own defence , or his title , and therefore they will not bear action . . outlawry was reversed for these two errors . . because it was not shewed where the party outlawed was inhabitant . . because it was shewed that proclamations were made , but not that proclamation was made at the parish-church where , &c. buckley against skinner . . there was exception taken , because that the defendant pleaded and justified the trespass , cum equis ; and said nothing to the trespass done porcis & bidentibus . and the opinion of the court was , that the plea was insufficient for the whole . and justice iones said , that if several trespasses are done to me , and i bring trespass , and the defendant justifie for one or two , and sayeth nothing to the other , that the whole plea is naught , because the plea is intire as to the plaintiff , and the demurrer is intire also . but justice barckley was of opinion , that the plea was naught quoad , &c. only ; and that judgment should be given for the other . vide . rep. . b. gomersall and gomersalls case . . a man pleaded a descent of a copy-hold in fee : the defendant to take away the descent pleaded , that the ancestor did surrender to the use of another , absque hoc , that the copy-holder died seised . and the opinion of the court was , that it was no good traverse , because he traversed that which needed not to be traversed ; for being copy-hold , and having pleaded a surrender of it , the party cannot have it again if not by surrender . like the case of a lease for years , helliers case . ▪ rep. . b. for as none can have a lease for years but by lawful conveyance , so none can have a copy-hold estate , if not by surrender : but if a man plead a descent of inheritance at the common law , there the defendant may plead a feoffment made by the ancestor absque hoc , that he died seised , because he may have an estate by disseism after the feofment . traverse of the descent , and not of the dying seised , is not good ; so was it adjudged in this court. vide h. . dyer . . it was moved in arrest of judgment upon an action of trespass upon the statute of e. . cap. . because that the plaintiff said , that the defendant was occupier only , and did not sh●w how he occupied , or what interest he had . and the 〈◊〉 ●pinion of the court was , that he need not , because here he makes no title ; and whosoever it be that taketh the tithe is a trespasser . and therefore justice iones said , that it was adjudged in this court , that an action lieth against the disseisor for the tithes : so against a servant : and so if one cut them , and another carry them away , an action lieth against any of them . . the parish of ethelburrow in london alledged a custome , that the greater part of the parishioners have used to choose their church-wardens ; and they chose two , the parson chose a third . the official of the bishop gave oath to one of them chosen by the parish , but refused to swear the other , and would have sworn the party chosen by the parson , but the parish was against it ; upon which the parson libelled in the ecclesiastical court. and a mandat was here praid , that the official swear the other who was chosen by the parish ; and a prohibition to stay the suit in the ecclesiastical court. upon the mandat the justices doubted , and desired that presidents and records might be searched ; and at length , upon many motions , presidents and records shewed , a mandat was granted . but there being suit in the ecclesiastical court , b● the other whom the parson chose , a prohibition was granted without any difficulty : but at first the counsel prayed a prohibition for not swearing the other ; which the court refused to grant , because there was no proceeding in the ecclesiastical court , and a prohibition cannot be granted where there is no proceeding by way of suit. vaughan against vaughan ; in action upon the case upon assumpsit . . the defendant did promise that he would make such a conveyance of certain lands : and pleaded , that he had made it , but did not shew the place where it was made : and the court was clear of opinion , that he need not ; for it shall be intended upon the land. and so in case of performance of covenants , it is not needful to shew the place where , &c. norrice and norrices case . . copy-holder for life , where the custome is , that if the tenant die seised , that he shall pay a heriot : the lord granted the seigniory for years , if the tenant should so long live : and after that he made a lease for years . tenant for life is disseised , ( or more properly , ousted ) and died . here were two questions : . whether there were any heriot to be paid , and admitting there were , yet who should have it , whether the grantee for years , or he who had the years ? and the court was clear of opinion in both points without any argument , . that a heriot was to be paid , not withstanding that the tenant did not die seised , because he had the estate in right , and might have entred , although he had not the possession . and justice barckley compared it to the case in c. . rep. . a. in butler and bakers case , where a man hath one acre of land holden in capite , and a hundred acres of socage land , and afterwards he is disseised of the capite land , and afterwards makes his will of all his socage land , in that case he is a person having of capite land , as the statute speaks . and yet that right of capite land shall make the devise void for the third part ; for notwithstanding the disseisin , yet he is tenant in law. and as to the second point , the court was clear of opinion also , that he in remainder , or he that had the estate for years ( for note the action was brought by him in the remainder for the heriot ) should not have it : and their reason was , because the tenant for life was not the tenant of him who had the future interest of years , but of him who had the interest for years . but they were not clear of opinion , that the grantee for years should have the heriot . justice barckley was , that the grantee for years should have it . but justice iones ( there being then none in court but they ) haesitavit . and the reason of the doubt was , because that eo instante that the tenant died , eodem instante , the estate of the grantee for years determineth . justice iones put this case : a seigniory is granted for the life of the tenant , the remainder over in fee ; the tenant dieth , who shall have the ward ? justice barckley said , he who is grantee of the particular estate : but iones seemed to doubt it . vide e. . . lewes against jones in a writ of error . . judgment was given for iones against lewes in an action brought in the common pleas : and lewes here brought a writ of error , and assigned for error , that he was an infant at the time of the action brought against him ; and that he appeared by attorney , whereas he ought to appear by guardian , or procheine amy : the defendant pleaded in avoidance of this writ of error , that there was no warrant of attorney . the plaintiff allegando , shewed the error before ; and the defendant pleaded in nullo erratum est . and the judgment was reversed . but the opinion of the court was , that the better way had been for the plaintiff to have demurred in law : for there being no warrant of attorney , there was no appearance at all ; and so are the books , e. . and e. . . in vtburt and parhams case , it was agreed , that a man may be non-suit without leave of the court , but he cannot discontinue his suit without consent of the court. davis and bellamies case in attaint . . the defendant brought attaint , and the verdict was affirmed ; and costs prayed upon this rule , that where the plaintiff shall have costs , there the defendant shall have costs : but they were denied by the court ; for that ought to be taken in the original action , and not in case of attaint ; but upon the restituatur , there costs shall be given ; but that is in the original action . . if two joynt-tenants be of a rectory , and one sueth for tithes by himself only ; it is n● cause of prohibition : so if a feme covert sue solely upon a desamation , a prohibition shall not be granted . . the sheriff of a county made a warrant bal●ivis suis , to arrest the body of such a man , and the bayliffs of the liber●y return a rescous . and exception was taken to it , because that the warrant was , ballivis suis ; and the return was made by those who were not his bayliffs ; and it was adjudged : for the liberty might be within his bayliwick , and so are all the presidents . and there was another exception , because the place of the rescous was not shewed , and for that the book of e. . was cited ; for there the rescous was , adtunc & ibidem , and did not shew the place . to that it was answered by the court , and agreed , that adtunc & ibidem is altogether incertain , if the place be not shewed ; but in the principal case , the place was shewed at the first , and always after ; that tunc & ibidem only without naming of the place , and adjudg●d good . for that tunc & ibidem throughout the declaration , hath reference to the place first shewed ; and it was adjudged good . . outlawry was reversed for this error , because that the exigent was , secund exactus ad com' meum ibidem , &c. . a hundred may prescribe in non decimando , and it is good ; for it is the custome of the county , which is the best law which ever was . but a parish or a particular town cannot prescribe in non decimando : and thereupon a prohibition was granted . and a prohibition was granted in this court , upon this surmise , that the custome was , that tithes should not be paid of pheasants . . if there be no venire facias it is not error , but it is helped by the statute : but if there be a venire facias , and it is erroneous , it is not holpen by any statute . trinity-term , º caroli , in the kings bench. . a man indicted others at the sessions-house in the old-baily , who were acquitted ; and the defendants counsel did remove the indictment into the kings bench , and prayed a copy thereof , to the end they might bring a conspiracie , or have other remedy for the wrong done unto them . and it was denied by the whole court , unless the recorder will say , that there appeared malice in the prosecution : for a man shall not be punished for lawful prosecution upon just ground without malice , although the parties be acquitted by law. the king against the inhabitants of shoreditch . . master keeling clerk of the crown in the kings bench did exhibit an information against the inhabitants of shoreditch for not repairing the high-way . and the issue was , whether they ought to repair it or no ? and it was said by the court , that by the common law , the inhabitants of a parish ought to repair all high-ways lying within the parish , if prescription did not bind some particular person thereto ; which was not in this case . and in this case some of the inhabitants would have been witnesses to prove that some particular inhabitants lying upon the high-way had used time out of minde to repair it , but were not permitted by the court , because they were defendants in the information ; wherefore the jury found , that the inhabitants ought to repair the way . . two men and their wives were indicted upon the statute of forcible entry , who brought a certiorari to remove the indictment into the kings bench. some of them did refuse to be bound to prosecute according to the statute of iac. c. . and therefore , notwithstanding the certiorari , the justices of peace did proceed to the trial of the indictment : and here it was resolved , that whereas the statute is , the parties indicted , &c. shall become bound , &c. that if one of the parties offer to find sureties , although the others will not , yet that the cause shall be removed ; for the denying of one or any of them shall not prejudice the other of the benefit of the certiorari , which the law gives unto them : and the woman cannot be bounden . and it was farther resolved , that where the statute saith , that the parties indicted shall be bound in the sum of ten pounds , with sufficient sureties , as the justices of the peace shall think fit , that if the sureties be worth ten pounds , the justices cannot refuse them , because that the statute prescribes in what sum they shall be bound . like to the case of commission of sewers , rep. . a. that where the statute of . h. . cap. . enables them to ordain ordinances and laws according to their wisdoms and discretions , that it ought to be interpreted according to law and justice . and here it was farther resolved , that after a certiorari brought , and tender of sufficient sureties , according to the statute , all the proceedings of the justices of peace are coram non iudice . the argument of the lord chief iustice , in the case between james and tintny , in a writ of error to reverse iudgment given in the common pleas for tintney defendant , in a replevin brought by james : the case was thus , vis . . stowel was lord of a mannor , and iames one of the tenants , and there the custome was , that the steward of the mannor might make laws and ordinances for the well-ordering of the common . and the custome was also to assess a penalty or a pain upon those who brake those laws and ordinances . and also to prescribe to distrain for the penalty . the steward made an ordinance , that he who put his cattle beyond such a bound , that he should pay s. d. iames offended against this ordinance , upon which the penalty was assessed , and a distress taken by tintny defendant in the replevin , plaintiff and baily of the lord of the mannor ; and judgment was given for him in the common pleas , and damages assessed : upon which a writ of error was brought . in this case it was agreed by the whole court , that the custom was reasonable : and the difference taken where the law or ordinance takes away the whole profit of the commoners , and where it abridgeth it only , or adds limits or bounds to it , as in this case . and farther it was agreed , that the commoners are bound to take notice of these ordinances . but in this case , the er●or which was assigned was this , that damages were given for the defendant , where no damages ought to have been given : and of that opinion was the lord chief justice , that no damages ought to have been given ; and with him agreed justice iones ; but justice crook and justice barckley , è contra . it is clear , that at the common law , the defendant shall not have damages , although as to some intent the avowant be as it were a plaintiff and actor . . h. . . . h. . . ▪ h. . . then the question ariseth only upon these two statutes , viz. . h. . cap . . h. . c. . and first , whether our case be within the letter of these laws ; admitting that not , whether within the mischief , so as that it shall have the same remedy . and i conceive , it is not within the letter or equity of these statutes : not within the letter ; for they speak , where a man distrains for rents , customs and services , or damage ●easant . and in our case , he doth not distrain for any of them ; for it is manifest , that he doth not distrain for rents , services , or damage feasant : and it is as clear , that he doth not distrain for customs ; for he distrained for a penalty assessed by custom . . in alcocks case it was here resolved , that where a prescription was alledged to distrain for an estray , and found for the avowant , that no damages should be in that case . for it was here resolved , that the customs intended in h. . cap. . are customs which are services . ly . i hold it not within the equity ; for the mischief at the common law was , that damages were not to be recovered for such rents , services , &c. and this penalty is no service . and i conceive clearly , that it was not the meaning of the makers of the act of parliament to extend to such penalties . and here i further take the difference which is in pilfords case in the rep. . in all cases where a man at the common law cannot recover damages : if a statute give damages , there he shall recover no costs ; for the same is an act of creation , which gives remedy where none was given before . but where there is an act of addition , which increaseth the damages at the common law , there notwithstanding he shall recover costs also . so in our case , these being acts of creation which give remedy where there was no remedy before , shall be taken strictly according to the letter , and shall not extend to such penalties as in our case : and upon this difference he cited the cases in pilfords case , and especially the case upon the statute of e. . of ingrossers ; the plaintiff shall not recover costs , but only the penalty given by the statute grounded upon h. . . i agree , that there be many presidents in the common 〈◊〉 ▪ that damages have been allowed in our very case ; but that is the use of the clerks , and passed sub silentio , without any solemn debate or controversie . vide greislies case , and the first case of the book of entries , presidents and judgments in this court. pasch. eliz. rot. . halesworth against chaffely . a judgment of the common pleas was reversed for this very point . m. eliz. ruddal and wilds case . m. & eliz. rot. . shepwiths case . avowry for relief a stronger case , judgment was reversed , because damages was assessed , hill. iac. rot. . leader against standwell in a replevin . avowry was made for an amercement in a leet , and found ●or the d●fendant , and damages assessed . but the entry upon the record was thus , super quo nullo habito respectu , &c. the plaintiff was discharged of the damages , because nulla damna debent esse adjudicanda per legem terrae ; but he shall have his costs . but it was objected by justice crook , that by the statute of iac. c. . which giveth costs and damages to the defendant in certain actions there specified where the plaintiff shall recover damages , and that where the plaintiff is non-suit , or verdict pass against him , that demurrer hath been construed to be within that statute . notwithstanding that it is an act of creation , i agree that : and answer , that demurrer is within that statute , and the mischief of it , but it is not so in our case ; for in our case there is no such mischief : for there is no colour to extend it beyond the words of the statute . for which cause i conclude that the judgment in this case ought to be reversed . . a clerk of the court dwelling in london was chosen churchwarden , and prayed a writ of priviledge , which was granted . and it was agreed by the whole court , that for all offices which require his personal and continual attendance , as churchwarden , constable , and the like , he may have his priviledge ; but for offices which may be executed by deputy , and do not require attendance , as recorder and the like ; ( from which the justices themselves shall not be exempt ) for them he shall not have his priviledge . and where he hath his priviledge , for the not obeying thereof , an attachment lieth . swift against heirs , in debt upon the statute of e. . for setting out of tythes . . the doubt in this case did arise upon two several indentures found by special verdict , which were made by the vicar and subchauntors corrols of lichfield ; one e. . the other & phil. & mar. the question upon the indenture of e. . was , whether the grant upon the habendum , be a grant of a freehold to begin at a day to come , or not . the chief justice , justice crooke , and justice barckley , were clear of opinion , that it was a grant of a freehold to begin at a day to come . and for that the case is thus : in the indenture of e. . there is a recital of a former lease for years : and by this indenture in e. . another lease was to begin after the first lease determined , the remainder in fee to another : and upon that the three justices before were clear in their judgments , that it was a grant of freehold to begin at a day to come , which without doubt is void , h. . h. . and bucklers case , rep. and in h. . the difference is taken betwixt the grant of a rent in esse , and rent de novo . a rent de novo may be granted in futuro , but not a rent which is in being . but justice iones in this case was of opinion , that here is not any grant of a freehold to begin at a day to come , because in this case the lease doth begin presently , because the lease recited is not found by the jury , and therefore now it is all one as if there had been no lease at all ; contrary in the case of the king , because it passeth a good estate of inheritance to the grantee . and therefore if i make a lease for years unto a man after the expiration of such a lease , where in truth there is no such lease in being , the lease shall begin presently . the question upon the indenture of & p. & mar. was no more but this . the vicar and subchauntors of lichfield made a grant of all their tithes in chesterton , and name them in certain , and in specie , as tithe-wool , tithe ▪ geese , pigs , swans , and the like , and that in a distinct clause , with especial exception of four certain things . after which came this clause , all which were in the tenure of margaret p●toe : and the jury sound that none of these tithes were in h●r tenure : and whether that grant were void or not , was the question ; and resolved by the whole court nullo contradicente , that the grant notwithstanding this fall● reci●al , was good , for these reasons . but first it was resolved , that where they grant all their tithes in chesterton , that it is a good grant , and hath sufficient and convenient certainty , e. . and ●●●lands case : there are two generalities , . absolute . . gen●●al in particular ; ●o here ▪ and in our case it is as c●r●ain , that demand in an action may be for them by the name of all their tithes in chesterton . so in the like manner an action of ejectione firme will lie : for an ejectione firme will 〈◊〉 for tithes as it hath been adjudged here . if the king grant all his lands , it is altogether incertain and void ; but if the king grant all his lands in dale , or which came to him by the dissolution of such an abby , it is good , because it is a general●y in particular . and it was agreed , that convenient certainty is sufficient : and therefore it was said by justice iones , that if i grant all my rents in dale which i have of the part of my mother , that he conceives the same to be good . the first reason wherefore this grant shall be good notwithstanding the false recital , was this , because the words here , all which , &c. are not words of denotation or restriction , but of suggestion or affirmation , and therefore shall not make void the grant. and here the difference was taken between the case of a common person , and of the king ; suggestion which is false in the case of the king , makes the patent void ; but contrary in the case of a common person : and therefore i● the king be deceived either in point of profit or in point of title , his grant is void , h. . where he is not deceived in point of profit , he shall not avoid the grant. h. . the second reason , that a deed ought to be construed vt res magis valeat quam pereat , h. . a man having a reversion , deviseth his land in manibus , thereby the reversion passeth , e . . release of all actions against prior and covent , shall be construed and intended all actions against the prior only , for an action cannot be brought against the covent . farther , by this construction you would avoid this deed ; and by the rule of law , the deed and words of every man shall be taken very strong against himself , ut res magis valeat , as is said before . and it is against reason to conceive that it was the meaning of the parties that nothing should pass . a third reason was , because the grant was a distinct clause of it self . and the words which were objected at the bar to be restrictive , were in another distinct clause , and therefore shall not restrain that which was before ; for words restrictive ought to be continued in one and the same sentence : wherefore they having granted all their tithes in chesterton by one clause , the false recital afterwards in another clause shall not make the grant void . see & eliz. dyer in wast , eliz. the lord wenworths case in the exchequer upon this rule of distinct clauses : and atkins and longs case in the common pleas , upon which cases justice iones did rely . the fourth reason was , that construction ought to be made upon the whole deed : and it appeareth by the context of the deed , that it was the meaning of the parties to grant the tithes by the deed. further , the exception of the four things sheweth , that it was the meaning of the parties to grant all things not excepted , as the tithes in this case ; for exceptio firmat regulam ; and to what purpose should the exception be , if they did not intend to pass all other things not excepted ? see car. h●skins and tr●ncars case , sir robert napwiths case , iac. cited by the chief j●●tice to that purpose . wherefore it was agreed by the whole court , that judgment should be given for the defendant . and the opinion of the court was clear also , that although some of the tithes had been in the tenure of margaret pet●e , that yet the grant was good . and that was after argument upon the demurrer , to avoid all scruples to be after made by counsel ; because it was conceived , that some of the tithes were in her tenure . crisp against prat in ejectione firme . . the case upon the four statutes of bankrupts , viz. h. . eliz. iac. and iac. was thus : ralph brisco iac. purchased copyhold to him and his son for their lives , the remainder to the wife in fee. iac. he became an inholder ; and about twelve years after , a commission of bankrupt is obtained against him ; and thereupon the copyhold-land is sold by the commissioners to the defendant . ralph brisco dieth , and his son iohn brisco entred , and made the lease to the plaintiff : the defendant entred upon him , and he brought an ejectione firme . and judgment was given upon solemn argument by the justices for the plaintiff . the first point was , whether an inholder be a bankrupt within these statutes : and it was resolved by all the justices , viz. iones , crook , barckley , and bramstone chief justice , that an inholder quatenus an inholder is not within these statutes : justice barckley and justice iones , one grounded upon the special verdict , the other upon the statutes , did conceive , that an inholder in some cases might be within these statutes . justice barckley did conceive upon this special verdict , that this inholder was within them ; because it is ●ound , that he got his living by buying and selling , and using the trade of an inholder . and he conceived upon these words , buying and selling in the verdict , and getting his living thereby , although that the jury have also found him an inholder , that the same is within the law. and he agreed , that he who liveth by buying or selling , and not by both , is not within the law ; but in our case the jury have found both , and it hath been adjudged , that he who buys and sells cattle , and stocks his ground with them , that he may be a bankrupt within those statutes . i agree , that a scrivener was not within eliz. for he doth not live by buying and selling , but by making use of the monies of other men ; but now he is within iac. but in our case the inholder buys his grass , hay , and grains , and provision also for his guests , and by selling of them he lives . but he agreed , that if the jury had found , that he was an inholder only , and not that he did get his living by buying and selling , that in that case , he was out of the law : and for these reasons , he did conceive , that this inholder , as by the special verdict is found , was within the statutes of eliz. and iacobi . justice iones : an inholder may be , or not be within these laws upon this difference . that inholder who gets his living meerly by buying and selling ( as many of the inholders here in london do ) they are within these statutes : but those who have lands of their own , and have hay and grain and all their provisions of their own , as many have in the country ; those are not within the statutes . farther he said , that buying and selling doth not make men within these statutes , for then all men should be within the statutes ; but they ought to be meant of them who gain the greatest part of their living thereby , and live chiefly or absolutely thereby . but bramston chief justice , and justice crook were clear of opinion , that an inholder could not be a bankrupt neither by the statutes , nor according as it is found by the special verdict . and their reason was , because that an inholder doth not live by buying and selling , for he doth not sell any thing , but utter it : he which sells any thing doth it by way of contract ; but an inholder doth not contract with his guests , but provides for them , and cannot take unreasonable rates , as he who sells may ; and if he doth , he may be indicted of extortion , which the seller cannot . wherefore they concluded , that an inholder is not within the statute of eliz. & iac. justice crook remembred these cases ; webb an inholder of vxbridge brewed in his house , and sold his beer to his guests : and it was adjudged in the exchequer , that it was not within the statute of brewers . and bedells case , who being a farmer bought and sold cattle ; and adjudged , that he was not a bankrupt within these statutes . and he put th●se cases upon this reason , that where the statutes said , get their living by buying and selling , that it ought to b●●or the greater part ; that they gain the greater part of their living thereby . and he said , that if a gentleman buy and sell land he is not within the statutes ; for it ought to be taken , those who buy and sell personal things . the second point . it was agreed by all , that copyhold is within the statute of eliz. & iac. first , because it is no prejudice to the lord , because there ought to be composition with the lord , and the vendee ; and although the sale ought to be by indenture , yet the vendee ought to be admitted by the lord. and the difference in heydons case in rep. was agreed . secondly , it is expresly within eliz. and therefore within iac. also by way of recital , although the statute of iac. hath new provisions . and by the statute of iac. it was said , that these statutes shall be construed most beneficial for the creditors , because their ground is suum cuique tribuere , eliz. dyer . vmpton and hides case , the acts of explanation shall be taken most beneficial and liberally . and the statute of eliz. says expresly , that the commissioners shall dispose of lands , as well copy as free. but although a copyhold be not within the later part of eliz. expresly , yet by connexion it is . and the statute of eliz. guides the statutes & iacobi . justice iones did agree , that the copyhold is within eliz. but not the person of the copyholder , although the person be within iac. and the chief justice said , that his opinion was , that upon the statute of iac. which is , that these statutes shall he taken liberally : that copyholds , although they had not been named , had been within these statutes . it was said by justice barckley , who argued for the defendant . that the verdict hath not found within eliz. because the verdict hath not found fraud expresly , but badges only thereof . see meriel littletons case in the chancellor of oxfords case , that the fraud ought to be expresly found , but so it is not here ; for here it is found , that the son was an infant at the time of the purchase ; and also that the purchase was with the mony o● the father , which are only inducements of fraud : but he argued it was within iac. because the father hath caused o● procured this conveyance to his child , as the statute speaks and here is fraud apparent , et quod constat clarè non deb●verificari , and therefore if a man enfeoff his son , it is fra●● apparent , & ought not to be found particularly . but it was resolved by all the other justices , that here was not fraud apparent , and therefore it ought to be found by the jury . the third and chief point in this case was , he being no inholder at the time of the purchase , and afterwards becoming an inholder , whether he were within the statute of eliz. and it was resolved he was not . but here justice barckley , who argued for the defendant , was against it . and he argued , that if a man purchase and sell , and afterwards become a tradesman and bankrupt , that that was not within the statute ; but if he keepeth the land in his hands , there he conceived him within the statute , as it was in this case . and he was against the book of the chancellor of oxfords case , of relation to devest the advowson ; and he said , it is not like to the case in & eliz. there cited . i● eriches case in the rep. there is a rule taken , that a verbis legis non est recedendum ; and in our case it is within the express words of the statute , which are , that if any person which hereafter shall become a bankrupt , &c. and here , he after became a bankrupt . but it was resolved by the others , with whom justice barckley did concur after , that it was not within the statute . justice crook argued , that it is not within the words of the statute , which are , if the offender purchase , and that the sale shall be good against the offender : and here , he was not offender at the time of the purchase ; and using no trade , shall he be punished for that after ? besides , here the so● should be punished for the offence of the father , which the law of god will not suffer . smith and cullamers case , rep. he ought to be endebted at the time , otherwise he is no offender ; and he might give away his goods before he was in debt . and the mischief here will be , that lands purchased years before should thereby be defeated . and i hold , that it a man ba a tradesman , and afterwards leaves his trade , and th●n purchaseth , and afterwards becomes a tradesman again , and a bankrupt , that he is not within the statute . but justice iones was of opinion , that i● he be a tradesman at the time , although not an offender , yet he is within the statute . but the chief justice did argue , that he ought to be an offender , and the thing which makes him to be an offender is his intent to defraud his creditors . iones : it shall be hard in this case to cause the estate to be reached by this statute , for perhaps it was for the marriage of the son , and perhaps the son might sell it , and after the father become bankrupt , it would be hard to void the sale . the chancellor of oxfords case was a stronger case , for there the party was indicted . and if a man be accomptant to the king , and afterwards sell , yet the sale shall be avoided by the king. but if he be not accomptant and ●ell●th , and afterwards becomes accomptant , the sale shall not be defeated . and here he became inholder after the purchase , and being a clear man at the time of the purchase , he shall not now be within the statute . chief justice : if that should be permitted , all things which the party did should be defeated , and therefore he agreed , that although he be a tradesman , yet if he be not in debt ; if he purchase for another , or give unto another , if no fraud be found , it is not within the statutes . and judgment accordingly was given for the plaintiff . young against fowler . . young brought an action upon the case against fowler for disturbing of him to execute the office of register to the bishop of rochester ; and upon not guilty , pleaded : the jury gave a special verdict . they found that the office was granted by one bishop to one for life , which was confirmed by the dean & chapter ; which bishop died , and afterwards iohn young was created bishop . and then they found that the office was grantable in reversion time out of mind , &c. and that iohn young bishop did grant the said office of register to iohn young his son now plaintiff in reversion . ( and that the office was to be executed by the said iohn young or his deputy , which iohn young the son was but of the age of years at the time of the grant ; but they found that he was of full age before the tenant for life died . and then they found that iohn young the bishop died ; and that his successor granted the office to the defendant , who executed many things concerning the office : and whether upon the whole matter the defendant were a disturber or not , was the question : and it was adjudged by all the justices without any solemn and open argument , that the defendant was a disturber : but the case was argued by counsel on both sides , whose arguments and reasons were briefly following . maynard for the plaintiff ; there are two points . . whether the grant be good within the statute of eliz. ly , whether the grant to an infant be good : and he held it was , because it was to be executed by his deputy . the word of the statute of eliz. are , [ of any thing belonging to the bishoprick ] and in our case the office of registry is belonging to the bishoprick . the second doubt is , whether the grant in reversion be convenient ; and i hold it is , although not absolutely , yet necessarily : and therefore we are to see , . what conveniencie is requisite ; and . whether such conveniencie be within the law : for that , it ought to be enquired , how this office hath used to be granted , and the use ought to guide the conveniencie . see the bishop of salisburies case ; a grant of an office to two , which hath not been used to be so granted , is not good . pase . car. rot. . the bishop of chichesters case . where the question was upon the usual grant of fees : and there because it was found that there was a grant of greater fees than the use and custome warranted ; it was adjudged good for so much as the custom did warrant , and void for the residue . and the statute it self speaks of usual rent ; all which proves , that use ought to guide the conveniencie . d point , that the grant to an infant was good , because it is granted to be executed by his deputy . i grant , that an infant cannot be an attorney , because an attorney cannot make a deputy . and this grant is not inconvenient ex natura rei , neither to the grantor , nor to the grantee . . it is not inconvenient ex natura rei , for such an office is grantable to one and his heirs , which by possibility may descend to an infant , and there he shall execute it by deputy ; and the same inconvenience is in this case , if there be any ▪ and if the execution of an office may be by deputy where the party is not able , the same reason is in this case . . it is not inconvenient to the grantor , because as it is presumed , when a man grants an office to one and his heirs , that he s●●s that the same by possibility may descend to an infant ; so he says in our case , at the time of the grant , he is an infant . . it is not inconvenient to the grantee , for it is for his benefit . h. . . e. . . but here it may be objected , that this office doth concern the commonwealth , and if the infant commit any offence he shall not be punished , because i● should be inconvenient : to that i answer , that the infant ought to execute it by his sufficient deputy , and he himself shall be charged for any escape , and by forfeiture of his office as any other may . besides , you shall never prejudice any i● praesenti , for the future prejudice which by possibility may happen to the commonwealth , e. . . stone and knights case . hill. car. rot. . an infant was bound by arbitrament . trin. car. rot. . an infant was bound for hi● schooling . but it may be farther objected , that it concerns the administration of justice , which an infant cannot do . to which i answer , that he may make a deputy , who ought to be adjudged sufficient by the ordinary , and he may well execute it h. . grants . an infant elected parson to serve a cure who shall be examined by the ordinary , e. . . an infant may be mayor , e. . . e. . . an infant who come in by purchase , makes him more liable than he who comes i● by descent . but in our case , the grant à fortiori shall be good because it is executory . and he took the difference between an executory grant as here , which by possibility may be mad● good , ( as in out case it was , because that the grantee was o● full age before the office fell in possession ) and where an interest vests immediately : farther , he conceived the case the stronger , because the deputy came in by the allowance of th● ordinary . ward for the defendant . there are four questions . whether a grant to an infant in poss●ssion be good . 〈◊〉 conceive not ; . quoad naturam rei , it is not good , because that by that grant the commonwealth is prejudiced . . th● office doth concern the administration of justice ; and there●fore cannot be granted in fee , and by consequence there shall be no descent of such judicial office , as hath been objected by mr. maynard , rep. i agree , that the grant of a parkership to an infant is good and where it was objected , that it may be prejudicial by possibility , i conceive it apparens nocumentum ; as rep. . and therefore the like nusance , as the case is there put , may be destroyed . e. , . winters case , clerk of the crown . & eliz. dyer . rep. . mich. , eliz. scamblers case ; it was adjudged , that an infant is not capable of a stewardship of a mannor ; and the reason is , because that thereby the tenants may be prejudiced ; so in our case the commonwealth . trin. car. rot. . our very case in the common pleas , was adjudged . further , an infant is not capable of this office , because misfeasans & nonfeasans may be , and he shall not be punished for it ; for an infant at the common law , is not liable to an action of wast , or an action upon the case . rep. . doct. & stud. the . question , whether the grant to him and his deputy , make the grant good : i hold it doth not . eliz. dyer . b. rep. . e. . . h. . . the officer is chargeable for his deputy , and not the deputy himself : and if it be so , if this grant should be good , here should be a misdemeanor in the office , and none should be punished for it ; which should be inconvenient : for the deputy cannot be charged , nor the officer in our case , because he is an infant , and therefore the grant is not good . the . quest. whether this subsequent act of the infant coming of full age , before the falling of the office into possession , hath made the grant good . i hold , that not , upon the common rule , quod initio non valet , &c. so is the bishop o● salisburies case , sir george reignalls case , and h. . . the . question , whether this grant in reversion to a man of full age , be good at the common law ? and i hold it is not ; because it is a judicial office , which is not grantable in reversion : with which agrees rep. auditor curles case . the question , whether it be within the statute of eliz. and i hold it is not , because that must take effect from the time of the granting of it , as the statute speaks . . i conceive it is not a necessary grant , because it is not within the exception of the statute , et exceptio firmat regulam . it was objected , that usage makes these grants good . i conceive the contrary , that usage is not a rule to measure a thing , whether it be convenient or not . and a grant may be good , which is not used . and the courts of justice ought to judge what is convenient or necessary , and what not . so in litt. and the commentaries , say and smiths case . besides , it is not necessary , for he stands but for a cypher , and doth nothing , and therefore not necessary . besides , it is inconvenient , and takes from the successor honorem munificentiae , for by the same reason that he may grant one , he may grant all the offices in reversion , so as his successors shall not have one to grant ; and by this means shall take away a flower of the bishoprick . . rep. . a. the opinion of popham chief justice : an office is not grantable in reversion by the bishop . but the court was clear of opinion , without argument for the plaintiff , that the grant is good . crooke he denied that such an office is not grantable in fee , and instanced in the ushers office and chamberlains of the exchequer , which are judicial offices , and yet granted in fee : and it was denied that this is an office of judicature , but ministerial only . to that which was objected , that the action doth not lie against an infant ; it was answered , that an action upon the case doth lie against an infant executor ; an action upon the case will lie against an infant for a nusance , or for words , by the common law. and in our case he shall forfeit his office. an● infant may be executor , in which greater confidence and trust is reposed ; and in our case the grant to an infant is not void ab initio , but voidable only upon contingent ; and 〈◊〉 conceive , that if the usage will warrant it , that he may grant all the offices in reversion : and upon that difference depends the opinion of popham , in the . rep. for there it doth not appear , that the custom was to grant in reversion : and therefore it was not good . barckley : the king may grant i● reversion without any custom . eliz. savages case . and there is no question , but that custom may make an office grantable in reversion , in the case of a common person . h. . crofts case . also the case of the usher of the exchequer granted in fee. and there is no question , but a judicial office may be granted to one and his heirs . and the office of warden of the fleet , which is an office of great trust , is granted in fee. and as such offices may descend to an infant ; so a feme covert may have such an office , for she may have a husband who may execute it ; and so an infant may have a deputy . h. . there is a difference amongst infants ; an infant , before the statute of eliz. might have been presented to a benefice , and he was parson de facto . so a meer lay man : but the same ought to be understood of an infant who was of age of discretion . a preb●ndary was granted to prideaux , at the age of years , and was adjudged void , because he was not of age of discretion ; but if he had been , it had been good . and i conceive , that it is necessary and convenient that it should be granted in reversion , for by that means the office would never be vacant , and should be always provided of those who were sufficient to execute it . so in our case the infant may be instruct●d before he come of full age . and farther , as an infant when he is presented , is to be allowed or disallowed by the ordinary ; so the deputy is by the court. the statute of el. makes against you ; for although it be not within it , yet it may be good at the common law , like the concurrent lease , which is good at the common law , and not within the statute of eliz. the rest of the justices did all agree with barckley . and justice iones said , that scamblers case , cited by my lord coke in institutes . b. was adjudged contrary , that an infant was capable of a stewardship in reversion ; and he said that it was adjudged in the exchequer , that an ignorant man was capable of an office in reversion ; which doth not differ from our case . sir john saint-johns case . . the lady cromwell was possessed of divers leases , and conveyed them in trust , and afterwards married with the said sir iohn saint-iohn ; and afterwards she received the mony which came of the trust , and with part of it she bought jewels , and part she left in mony , and died . and sir iohn saint-iohn took letters of administration of the goods of the wife : and the ecclesiastical court would make him accomptable for the jewels , and for the mony ; and to put them into an inventory . and the opinion of the court was , that he should not put them into the inventory , because the property is absolutely in the husband , & he hath them not as administrator ; but things in action he shall have as administrator , and shall be accomptable for them : and in that case a prohibition was granted as to the mony. it was moved again this term , that the lady saint-iohn did receive part of the mony , put it out , and took bonds for it in the names of others , to her use ; and the spiritual court would have him accompt for that , and thereupon a prohibition was prayed ; but the court would not grant it . and there barckley differed in opinion , and so did the court , some being for it , and some against it . the reason given wherefore the prohibition should not be granted , was , because the mony received upon the trust , is in law , the monies of the trustees , and the wife hath no remedy for it , but in court of equity ; and therefore that the husband should have it as administrator . the reason urged wherefore the prohibition should be granted , was , because here the trust was executed , when the wife had received the mony , and by the receipt the husband had gained property therein as husband , and therefore should not be accomptable for it . farther , here the ecclesiastical court should determine the trust , of which they have no jurisdiction , for they have not a court of equity . and the court ruled , that the counsel should move in chancery for a prohibition , for in equity the mony did belong to the wife . and here it was agreed , that if the trustees consent that the wife shall receive the mony , as in our case the contrary doth not appear , that there the husband might gain a property as husband ; but because the court conceived , that the ecclesiastical court had not jurisdiction , a prohibition was granted . and here it was agreed , that if a woman do convey a lease in trust , for her use , and afterwards marrieth , that in such case , it lies not in the power of the husband to dispose of it ; and if the wife die , the husband shall not have it , but the executor of the wife ; and so it was said , it was resolved in chancery . . barckley and crooke , there being no other justice at that time in court , said , that upon a petition to the archbishop , or any other ecclesiastical court , no prohibition lieth . but there ought to be a suit in the ecclesiastical court . and by them , a libel may be in the ecclesiastical court , for not repairing a way that leadeth to church , but not for repairing of a high-way : and upon suggestion that the libel was for repairing a high-way , a prohibition was granted . . many indictments were exhibited severally , against several men , because each by himself , suffered his door to be unrepaired , and it was shewed in the indictments , that every one of them ought to repair : and thereupon it was moved , that they might be quashed ; but the court would not quash them without certificate , that the parties had repaired their doors ; but it was granted , that process should be stayed , upon motion of counsel that reparation should be immediately done . but at the same time , many indictments , for not repairing of the high-way , which the parishioners ought to have repaired , according as it was found by verdict , the same term were quashed for the same defect : but in truth , there was another fault in the indictment , for that it was joynt one only , whereas there ought to have been several indictments ; but they were quashed for the first defect . . a replevin was brought in an inferiour court , and no pledges de retorno habendo , were taken by the sheriff , according to the statute of west . . c. . after the plaint was removed into this court by a recordari , and after verdict given , it was moved in arrest of judgment , want of pledges ; for th●se reasons , because the pledges de retorno habendo , are given by that statute , as h. . . and . h. . . b. and that statute saith , that pledges shall be taken by the sheriff , and therefore no other can take them , notwithstanding that pledges might be found here in court. and h. . . and f. n. b. . a. say , that where pledges are found , that they shall remain , notwithstanding the removal of the plaint by recordari : and the reason is , because the sheriff is a special officer , chosen to that purpose by the statute , and therefore no other can take them . besides , there would be a failer of justice , if the court should put in pledges , for then there might be no remedy against the sheriff , for that he found no pledges , and no remedy against the pledges , because they are not found according to the statute , and so a failer of justice ; and by that means the sheriff should frustrate and avoid the statute ; for no pledges should ever be found , and so he should take advantage of his own laches and wrong . farther , it was objected , that these proceedings are the judicial act of the court , and therefore the court will not alter or diminish them . l. entries . and h. . and farther , it was said , that the cases of young and young , and dr. hussies case , adjudged in this court , that pledges may be found at any time before judgment were , in action upon the case , and not in replevine , as our case is , for which there is special provision made by the statute . but it was answered , and agreed by the whole court , that pledges may be found by this court : for the pledges given by the statute of west . . are only to give remedy against the sheriff ; and if the sheriff do not his duty , but surceaseth , we may as at the common law put in pledges , and yet notwithstanding remedy may be against the sheriff upon the statute for his neglect . and farther it was agreed , that pledges may be found at any time before judgment , as in young and youngs case , and dr. hussies case it was adjudged : and judgment was affirmed . . there can be no second execution granted out , before that the first be returned . . two joyntenants of a rectory agree with some of their parishioners , that they shall pay so much for tithes : and notwithstanding , one of th●m sueth for tithes in the ecclesiastical court ; and a prohibi●ion was prayed , because that one of them cannot sue without the other ; and the court would not grant it : and their reason was , because although that one of them cannot sue without the other by our law ; yet perhaps , the spiritual court will permit it . . husband and wife brought a writ of conspiracie , and it was adjudged that it would not lie . and iones cited this case , that husband and wife brought an action upon the case against another for words , viz. that the husband and wife had bewitched another ; and it was not good , because that the wife cannot joyn for conspiracie made against the husband , nor for trespass of battery , as the book is , e. . but justice crook was of opinion ▪ that the conspiracie would well lie , because that the indictment was matter of record , and therefore not meerly personal : but the whole court was against him : and justice barckley took the difference , where they sue for per●onal wrong done to th●m , there they shall not joyn ; but wher● they have a joyn● interest , as in case of a quare impedit , there they shall joyn . thurston against ummons in error to reverse a iudgment in bristow . . thurston brought an action upon the case against vmmons , & declared , that the defendant brought an action against him , at the suit of hull , & without his privity : and thereupon did arrest and imprison the plaintiff , by reason whereof all his creditors came upon him , and thereby that he had lost his credit , &c. and a verdict was found for the plaintiff , and thereupon error brought ; and two errors were alledged . . that the action will not lie , because in truth there was a just debt due to hull , in whose name he sued . . because it is not shewed , that the causes of actions , which the other creditors had against him , did arise within the jurisdiction of the court of bristow . and notwithstanding the first error alledged , judgment was affirmed by the whole court upon this difference ; where hull himself sueth or commenceth suit against the plaintiff , there although by that suit he draw all the creditors upon the back of him , and so perhaps undo him , yet because it was a lawful act ; no action upon the case lieth against him : but where one commenceth suit against another , in the name of another , and without his privity , that is maintenance , which is a tortious act , and therefore an action will lie : so in the principal case . as to the second error alledged , the court differed in opinion . barkley : that the damages were ill assessed , because they were given aswel for the actions brought by the other creditors . but justice bramston contrà , that the damages were well assessed , because that the actions brought by the creditors were added for aggravation only , and the cause of the action was the arrest and imprisonment , like the case where a man speaks words which are in part actionable , and others only put in for aggravation , and damages is assessed for the whole , it is good . there was a third error assigned , that the venire facias was , de warda omnium sanctorum de bristow , without shewing in what parish . childe against greenhil . . childe brought trespass against greenhill for fishing in seperali piscaria of the plaintiff , and declared that the defendant pisces ipsius cepit , &c. and verdict found for the plaintiff . and it was moved by saint-iohn in arrest of judgement , because the plaintiff declared of taking of pisces suos , whereas the plaintiff , they being ferae naturae , hath not property in them . register , . and f. n. b. and book entries . . no count , that the defendant cepit pisces ipsiu● , but ad valentiam , &c. without ipsius . so fines case in dyer . h. . . h. . . h. . . by brudnell . e. . . rep. case of swannes . and the book of h. . . is over-ruled by the case of swannes . h. . . and the same is matter of substance , and therefore not helped after verdict . an action of trover and conversion against husband and wife quia converterunt , is not good , and it is not helped after verdict , because it is matter of substance . rolls for the defendant ; i agree , that lepores suos , or pisces suos , without any more , is not good . but where he brings an action of trespass for taking them in his soil , there it is good , because it is within his soil . so in our case , for taking pisces suos in his several piscary : and with this difference agree h. . . e. . . so regist. , & . h. . tit . tresp . . & h. . . and the book of e. . saith , that in trespass , the writ shall not say , damam suam , if he do not say , that it was taken in his park or warren , or saith damam domitam , or as the book is in h. . in my soil or land ; and by newton , he shall say there damas suis. and admit that it was not good , yet i hold , that it is helped after verdict , because it is not matter of substance ; for whether they be pisces suos or not , the plaintiff shall recover damages . justice barckly : it is true , that in a general sense they cannot be said pisces ipsius , but in a particular sense they may ; and a man may have a special or qualified property in things which are ferae naturae , three ways ; ratione infirmitatis , ratione loci , & ratione privilegii : and in our case the plaintiff ●ath them by reason of priviledge . and it was agreed by the whole court , that judgment should be affirmed , upon the very difference taken by rolls , that where a man brings trespass for taking pisces suos , or lepores suos , &c. and the like , that the action will not lie . but if he bring trespass for fishing in his several piscary , as in our case , or for breaking of his close , and taking lepores suos , &c. there it will lie . pitfield against pearce . . in an ejectione firme , the case was thus . thomas pearce the father , was seised of lands in fee , and by deed , in consideration of marriage , did give and grant this land to iohn pearce , the now defendant , his second son , and to his heirs after his death , and no livery was made : thomas pearce died , the eldest son entred , and made a lease to the plaintiff , who entred , and upon ejectment by the defendant , brought an ejectione firme . twisden : the only question is , whether any estate passeth to the son by the deed ; and it was said , there did , and that by way of covenant . and it was agreed , that in this case if livery had been made it had been void , because that a freehold cannot begin at a day to come . but i may covenant to stand seised to the use of my son after my death . so a man may surrender a copyhold , to take effect after a day to come . com. . so a man may bargain and sell at a day to come . mar. dyer . . chudleighs case . . h. . . a use is but a trust betwixt the parties , and rep. . there need not express words of covenant , to stand seised to an use . eliz. blithman and blithmans case , rep. . besides , these words dedi & concessi , are general words , and therefore may comprehend covenant : and words shall be construed , that the deed may stand , if it may be . ass. . e. . . but i agree , that if the intent appeareth that it shall pass by transmutation of possession , that there it shall be so taken ; but here his intent doth not appear to be so , for if there should be livery , then the son should take nothing , for the reason before given , which is against his meaning . mich. iac. rot. . buckler and simons case . dyer . vinions case . the cases cited before , are in the future tense , but the words are here , i give , &c. eliz. callard and callards case ; stand forth eustace , reserving an estate to my self and my wife , i do give thee my land : and the better opinion was , that in that case it did amount to a livery , being upon the land , for his intent is apparent . mich. & eliz. trelfe and popwells case , adjudged in such case , that an use shall be raised : for which it was concluded , that in this case there is a good estate raised to iohn pearce by way of covenant . rolls : i conceive , that not estate is raised to iohn pearce by this conveyance . it was objected , that it shall inure by way of covenant , to raise an use . i agree , that if the meaning of the party may appear that he intended to pass his estate by way of raising of an use , otherwise not . and here is no such appearance . foxes case in rep. is a stronger case ; and here it doth not appear that he meant to pass it by way of use . but by the word [ give ] he intended transmutation of possession . rep. bedells case , mich. . car. rot. . in the common pleas it was adjudged , that a gift of a remainder after the death of the grantor was void ; wherefore he concluded for the plaintiff , and so judgment was given by the whole court. and justice iones said , when a man makes a doubtful conveyance , it shall be intended a conveyance at the common law. and it shall not be intended that the father would make him tenant for life only punishable of wast . mich. º car ' in the kings bench. . it was moved for a prohibition to the counsel of the marches , and the case was such : a man seised of lands in fee , made a feoffment to the use of himself for life , the remainder in tail to i. s. he in the remainder levied a fine . and the counsel of the marches , upon a surmise , that the tenant for life died seised , according to their instructions , would settle the possession upon the heir of tenant for life , against the conusee . for their instructions were made , that where a man had the possession by the space of three years , that the same should be settled upon him , until trial at law were had . but the whole court was against it , because it doth appear that he had but an estate for life , and so the possession appertained to him in the remainder . and here it was said by justice barckley , that their opinion hath been , that the possession of tenant for life should be the possession of him in the remainder , as to this purpose . note that the principal case here was ( although the case before put was also agreed for law ) thus : tenant in tail levied a fine , to the use of himself for life , the remainder in fee to i. s. and died : in that case the council in the marches would settle the possession upon the heir of tenant in tail , against the purchaser , who held in by the fine which had bar'd the estate tail , by which the issue claimed ; and the whole court was against it , for which cause a prohibition was granted . . habeas corpora was directed to the porter of ludlore , to bring the bodies of iohn shielde and william shielde into the kings bench ; the case shortly ( as appears upon the retorn ) was this . powell the father brought a bill , in the nature of an information , against the said iohn and william shield , before the council of the marches in wales , for an unlawful practice , combination , and procurement of a clandestine marriage in the night , betwixt mary shield a maid-servant , and the son of powell , who was a gentleman of good credit and worth , the parson also being drunk , as he himself sware , and the same also being without banes or licence ; for which offence they were severally fined to the king , and an hundred marks damages given to the plaintiff , and farther ordered by the council , that they should be imprisoned till they paid their several fines to the king , and damages to the party , and found sureties to be bound in recognisance for their good behaviour , for one year , and till they knew the farther order of the council : and these were the causes which were retorned . and upon this retorn , glynn , who was of counsel with the prisoners , moved many things ; and many of them , as was conceived by the court , altogether impertinent . but the objections which were pertinent were these . first , that the councel of the marches , as this case is , have no jurisdiction , because the clandestine marriage is a thing meerly spiritual , and therefore not within their instructions . the second was , that they have exceeded their instructions , in that they have given damages to the party above fifty pounds . for by their instructions , they ought not to hold plea where the principal or damages exceed fifty pounds . but as to the first he said , there may be this objection ▪ that they did not punish them for the clande●●in● . marriag● which in truth is a thing meerly spiritual , but for the unlawful practise and combination , and for the execution of it . to which he answered , that they have not juristiction of the principal , and therefore not of the accessory : ( here note that it was afterwards said by bramston chief justice , that the unlawful practise and combination was the principal , and the clandestine marriage but the accessory ; which was not contradicted by any . ) farther , it was objected by glynn , that they were imprisoned for the damages of the plaintiff , and it doth not appear , whether it was at the prayer of the party , as he ought by the law. bankes , the kings atturny-general contrary . and as to the first , their instructions give them power to hold plea of unlawful practises and assemblies : and this is an unlawful practise and assembly , and therefore within their instructions : and although that heresie , and clandestine marriage , and such offences , per se are not within their instructions , yet being clad with such unlawful circumstances and practises , they are punishable by them . as to the second he said , the instruction which restraineth them that they do not hold plea above fifty pounds , is only in civil actions , at the several suit of the party : but there is another instruction , which gives them power , where the cause is criminal , to assess damages according to the quality of the offence , and at their discretions . as to the third objection , he said , that the retorn , being that they were in execution for the damages , it ought to be meant at the prayer of the party , otherwise it could not be . for which causes he prayed th●● the prisoners might be remanded . and the whole court ( crooke being absent ) were clear upon this retorn , that they should be remanded ; because it appeareth that their fines to the king were not payed : and therefore , although that the other matters had been adjudged for them , yet they ought to be remanded for that one . and as to the objections which were made , the court agreed with mr. attorney , except in the point of damages , and for the same reasons given by him . but as to the point of the damages , whether they have gone beyond their instructions , and so exceeded their power in giving above fifty pounds damages or not ; it seemed to the court they had ; and as it seemed to them , if the retorn had been , that the kings fines were paid , it would have been hard to maintain that the assessing above fifty pounds damages , was not out of their instructions : but because the kings fines were not paid , they were remanded , without respect had thereunto ; for the reasons given before . . it was said by the court , that when judgment is given in this court against another , and execution upon it , and the sheriff levieth the mony ; the lord keeper cannot order that the mony shall stay in the sheriffs hands , or order that the plaintiff shall not call for it : for notwithstanding such order he may call for it . and it was farther said by the court , that an attachment shall not be granted against the high sheriff for the contempt of his bayliffs . and a writ of error is a supersedeas to an execution ; but then there ought to be notice given to the sheriff : otherwise , if he notwithstanding serve the execution , he shall not run in contempt , for which an attachment shall be granted . . serjeant callis came into court , and moved this case : chapman against chapman , in trespass done in lands within the dutchy of cornwal , which were borough-english , where the custome was , that if there were an estate in fee in those lands , that they should go to the younger son , according tthe custome ; but if in tail , the should descend to the heir at common law : and it was moved by him , that the custom was not good , because it cannot be at one time customary , and go according to the custom , and at another guildable . and the whole court ( crooke only being absent ) were against him , that the custom was good . hicks against webbe . . in trespass for a way , the defendant did justifie , and said , that he had a way not only ire , equitare & averia sua fugare ; but also carrucis & carreragiis carriare . the plaintiff traversed it absque hoc , that he had a way not only ire , equitare , &c. in the words aforesaid : and thereupon they were at issue , and found for the plaintiff . glynn moved in arrest of judgment , that the issue was ill joyned , because it was not a direct affirmative , but by inducement only . and the whole court was against him . and justice iones said , that if i say , that not only mr. glynn hath been at such a place , but also mr. iones , without doubt it is a good affirmative , that both have been there . but they all agreed , that the pleading was more elegant than formal . . in the case betwixt brooke and boothe : justice barckley said , that it is a rule , that if there be two things alledged , and one of necessity ought to be alledged , and he relies on-only upon the other , it is no double plea : as if a man plead a feoffment with warranty , and relieth upon the warranty , it is not double . . justice barckley said , that the court of the exchequer , they may make a lease for three lives , by the exchequer-seal . clarke against spurden . . in a writ of error to reverse a judgment given in the court of common pleas , the case was shortly thus : a. wife of i.s. intestate , promiseth to b. to whom adnistration was committed , that if he shall relinquish the administration at the request of c. and suffer a. to administer , that a. will discharge b. of two bonds . in assumpsit brought by b. in the common pleas , he alledged that he did renounce administration , and suffered a. to administer , and that a. had not discharged him of the two bonds . and it was found for the plaintiff . and thereupon error was brought , because b. doth not shew , that he did renounce the administration at the request of c. and rolls for the plaintiff , in the writ of error , did assign the same for error . justice barckley ( all the other justices being absent ) held that it was error ; for consideration is a thing meritorious , and all ought to be performed , as well the request on the part of c. as the permission of the part of b. which ought to be shewed : for perhaps b. was compelled to relinquish it in the ecclesiastical court , as it might be ; for of right the wife ought to administer . and therefore it ought to have been averred , that it was at the request of c. and therefore , if it had been that he should renounce at the charge of c. it ought to be averred , that it was at the charge of c. and it was adjourned . . a man libelled in the spiritual court , for tithes for barren cattle : and it was moved for a prohibition upon this suggestion , viz. that he had not other cattle than those which he bred for the plough and pale ; and thereupon barckley being alone there , granted a prohibition . and the same parson also libelled for tithes of conies ; and for that also he granted a prohibition , for they are not titheable , if not by custome : and here barckley said , that if land be titheable , and the tenant doth not plough it , and manure it ; yet the parson may sue for tithes in the ecclesiastical court. north against musgrave . . in debt upon the statute of & phil. & mar. c. . the words of which statute are , that no man shall take for keeping in pound , impounding , or poundage of any manner of distress , above the sum of four pence , upon pain of forfeiture of five pounds , to be paid to the party grieved . and the plaintiff shewed that his cattle were distreyned and impounded , and that the defendant took of him ten pence for the poundage : and thereupon the plaintiff brought an action for the penalty of five pounds , and found for the plaintiff . and the judgment was , that he should recover the five pounds , and damages , ultra & praeter the mony taken for the poundage . and thereupon a writ of error was brought , and three things assigned for error . first , because the action was brought for the penalty of five pounds only , and not for the six pence which was taken above the allowance of the statute , which ought not to be divided . which was answered by justice barckley ( all the other justices being absent ) that notwithstanding it is good ; for true it is , that he cannot bring his action for fifty shillings , part of the penalty , because it is entire ; but here are two several penalties , and he may divide and disjoyn them if he will , or he may wave the six pence . for quilibet potest renunciare , juri pro se introducto . the second was , that he doth not demand that which is ultra & praeter the four pence given by the statute : and yet the judgment is given for that , which is not good : to which justice barckley said , that the judgment was good . for no judgment is given for that which is ultra & praeter the four pence , but only for the four pounds , because he doth not demand it . and we cannot judge the judgment to be erroneous by implication . the third objection was , that costs and damages are given , which ought not to be upon a penal law. for he ought not to have more than the statute giveth ; and therefore upon the statute of perjury , no costs are given : so upon the statute of gloucester of wast , the plaintiff shall recover no more than the treble value . but rolls who was on the contrary , said , that there are many presidents in the common pleas , that damages have been given upon this statute . but barckley and iones , who afterwards came , and seemed to agree with justice barckley in the whole , was against it , that no damages ought to be given ; and desired that the presidents might be viewed . but here rolls offered this difference : where the penalty given by the statute is certain , as here , upon which he may bring debt , there he shall recover damages : but where the penalty is uncertain , as upon the statute of gloucester , for treble damages , the statute which giveth the treble value , and the like ; there , because it is incertain , he shall have no more ▪ barckley asked mr. hoddesdon , if the informer should recover damages . and he and keeling clerk of the crown , answered , no ; but said damages should be given against him ▪ and it was adjourned . . skinner libelled in the ecclesiastical court for th● tithes of roots , of a coppice rooted up . and porter prayed prohibition . and it was said by iones and barckley justice●● no other justice being present , that if cause were not shewed before such a day , that a prohibition should be awarded because it is ad exheredationem , and utter destruction of 〈◊〉 ▪ and the opinion was , that the branches should be priviledged . and a man shall not pay tithes of quarries of ston● ▪ and barckley said , it had been adjudged , that a man shal● not pay tithes for brick and clay . a. said to b. hast thou been at london to change 〈◊〉 mony thou stolest from me ? and it was objected , that thes● words are not actionable , because they are an interrogator● only , and no direct affirmativ● . but by barckley and ione● ( the other justices being absent ) the words are actionabl● . for the first words , hast thou been at london , are the word● of interrogation ; and the subsequent words , viz. the 〈◊〉 thou stolest from me , is a positive affirmation . and barckley said , that it had been oftentimes adjudged , that words 〈◊〉 interrogation should be be taken for direct affirmation . ione● also agreed to it ; and he said that this case had been adjudged , that where a man said to i. s. i dreamed this night that you stole an horse , that the words are actionable . and if these and ▪ the like words should not be actionable , a man might be abusive , and by such subtile words always avoid an action . . a. said of b. that he took away money from him with a strong hand , and alledged that he spoke those words of him innuendo felo●icè : and for them the plaintiff brought an action upon the case . and by barckley and iones ( none other being present ) the action doth not lie : ●or he may take money from him manu forti , and yet be but a trespasser ; and therefore the innuendo is void , for that will not make the words actionable , which are not actionable of themselves . justice iones said , that it was a question , whether a bar in one ejectione firme , were a bar in another . and justice barckley said , that it is adjudged upon this difference , that a bar in one ejectione firme , is a bar in another , for the same ejectment ; but not for another , and new ejectment : to which iones agreed . dickes against fenne . . in an action upon the case for words ; the words were these : the defendant having communication with some of the customers of the plaintiff , who was a brewer , said , that he would give a peck of malt to his mare , and she should piss as good beer as dickes doth brew . and that he laid ad grave damnum &c. porter for the defendant ; that the words are not actionable o● themselves ; and because the plaintiff hath alledged no special damage , as loss of his custome , &c. the action will not 〈◊〉 rolls : that the words are actionable : and he said , that it had been adjudged here , that i●●ne say of a brewer , that he brews naughty beer , wi●hout more saying , these words are actionable , without any special damage alledged . but the whole court was against him ( crooke only absent ) that the words of themselves , were not actionable , without alledging special damage ; as the loss of his custome , &c. which is not here . and therefore not actionable . and barckley said , that the words are only comparative , and altogether impossible also . and he said , that it had been adjudged , that where one says of a lawyer , that he had as much law as a monkey , that the words were not actionable ; because he hath as much law , and more also . but if he had said , that he hath no more law than a monkey , those words were actionable . and it was adjorned . hodges and simpsons case . . a man brought an action of trover and conversion against husband and wife , of two garbes , anglicè , sheaves of corn ; and said that they did convert those sheaves ad usum ipsorum , viz. of the husband and wife . and here were two things moved by hyde . first , that he shewed the conversion to be of two garbes , anglicè , sheaves of corn : which plea is naught and incertain . and courts ought to have certainty ; but here it is not shewed , what corn it was . and the anglicè is void , and therefore no more than trover and conversion of so many sheaves , which is altogether incertain ; and therefore not good . the other thing is , that the plaintiff sayth , that the conversion was ad usum ipsorum , which cannot be , for the wife hath no property during the life of the husband ; and therefore cannot be ad usum ipsorum . and he cited two judgments in the point , where it was adjudged accordingly . and justice barckley said , that it had been many times so adjudged . but justice iones said , that there may be a conversion by the wife to her use , as in this case to bake the barley into bread , and to eat it her self . and bramston chief justice said , that a wife hath a capacity to take to her own use ; for there ought of necessity to be property in the wife , before the husband can have by gift in law : and they desired to see presidents . and therefore it was adjourned , as to this point . but by the whole court , the other was not good . more of the case of north and musgrave . . maynard for the plaintiff , in the writ of error , that the judgment was erroneous : first , because the damages and costs were given , where none ought to be given , being a penal law : and therefore no more than the penalty shall be recovered . and he remembred the rule taken in pilfords case . rep. . a. and he cited divers presidents also for it . cokes book of entries & . and presidents upon the statute of perjury . , . secondly , because he divided the penalty given by the statute , which ought not to be , for by such means the offender should be doubly vext ; for he might sue him after for the six pence praeter & ultra that which was taken for the distress . and he said , it is like to the case of an annuity , which is entire and cannot be divided . thirdly , he said , that the judgment it self was erroneous , because that judgment is given for more than he demands . for the judgment is , quod recuperet . li. ultra & praeter , that which is above the d. given by the statute . rolls contrary , that the damages and costs are well given ; and the same is out of the rule of pilfords case : because that the action is no new action , but the thing is a new thing , for which the old action is given : and the damages and costs are here given for the suit and delay , and not for the offence . and he cited also presidents for him , viz. the new book of entries , . for the second point , he said , that they are several penalties which are given , and therefore he might bring his action severally for them , if he would . as to the third point , that judgment is given for more than the party declares : it is not so , for then the judgment shall be made vitious by implication , which ought not to be . and as to dividing of the penalty and judgment , the same was good by the whole court , for the reasons before given . as to the giving of costs , iones and bramston chief justice conceived , that they were well assessed , upon the presidents before cited : but barckley doubted thereof , and did conceive that no costs should be given in this case , and that upon pilfords case rep. as to the presidents , he said , that they did not bind him ; for perhaps , they passed sub silentio . and afterwards it was adjorned . johnson against dyer . . in an action upon the case for words , the defendant having speech with the father of the plaintiff said to him , i will take my oath that your son stole my hens . for which words the plaintiff brought the action . but did not aver that he was his son , or that he had but one son. and it was holden by the whole court ( crooke being absent ) that the plea was not good . leake and dawes case . . leake brought a scire facias , in the chancery , against dawes , to avoid a statute ; and the case , as it was moved by serjeant wilde , was such : hopton acknowledged a statute to dawes , and afterwards conveyed part of the land liable to the statute to i. s. who conveyed the same to leake , the plaintiff ; and afterwards the conusor conveyed other part of the land to dawes , the defendant , who was the conusee , by bargain and sale : the conusee extended the lands of leake , the purchaser ; who thereupon brought this scire facias , to avoid the statute , because that the conusee had purchased parcel of the land liable to the statute , and so ex●inguished his statute . and this case came by mittimus into the kings bench. and here it was moved by serjeant wilde , for dawes the defendant , in arrest of judgment . and taken by him for exce●●ion , that the bargain and sale is alledged to be made to dawes , but it is not shewed , that it was by deed inrolled ; but yet it is pleaded , that virtute cujus , viz. of bargain and sale , the conusee was seised , and doth not shew ▪ that he entred . and here it was said by the court , there are two points . first , whether an inrolment shall be intended , without pleading of it ? secondly , admitting not what estate the bargaine● hath , as this case is ? as to the first justice iones took this difference . where a man pleads a bargain and sale to a stranger , and where to himself . in the first case , he need not plead an inrolment ; but contrary in 〈…〉 . barckley agreed it , and took another difference , betwixt a plea in bar , and a count : in a count , if a man p●●ad a grant of a reversion without attor●ment , it is good ; contrary in bar : so in this case . the second question is ( admitting that the deed shall be intended not to be inrolled without pleading ) what estate dawes the conusee hath before entry , the deed not being inrolled . for it was agreed by the whole court , that if he be a disseior , or if he hath but an estate at will , that the statute is suspended . and first , whether he hath an estate at will , at the common law , or not , without entry . barckley : that he had . but iones and bramston , contrary ; and it seemed that he had an estate at will , by the statute . and put the case of feoffment in bucklers case . . rep. where the feoffee entreth before livery , that he hath an estate at will : and barckley agreed therein with him , for the possibility of inrolment . but iones conceived that an estate at will , could not be executed by the statute . and it was adjorned . curtisse against aleway . . the case was thus : a woman was dowable of certain land , within the jurisdiction of the council of the marches , of which i. s. died seised . she accepted a rent by parol of the heir , out of the same land , in satisfaction of her dower . and afterwards there was a composition betwixt them for defalcation of that rent . afterwards there was an action brought before the council of the marches for the arrerages of the rent : where the question was , whether the rent were in satisfaction of her dowe● , or not : and it was moved by moreton for a prohibition . and it was granted by the court ; because the same did concern freehold , of which they have not jurisdiction , for by the express proviso of the statute of h. . of holding of plea of lands , tenements , hereditaments , or rents . but because that it appeared by the bill , that the woman was dead , so as the realty was turned into the personalty , viz. into debt . and therefore it was conceived by evers attorney of the marches , that although it was not within the jurisdiction before , yet being now turned into a personal action , that they have jurisdiction . but iones and barckley justices , were of a contrary opinion ; and iones said , that an action of debt for arrerages would not lie before them , because it touched the realty ; which was denied by none but evers attorny . edwards against omellhallum . . in a writ of error , to reverse a judgment given in ireland , in an ejectione firme ; the case was this , as it was found by special verdict : a mortgager made a lease for years , by deed indented , and afterwards performed the condition , and made a feoffment in fee ; the lessee entred upon the feoffee , who re-entred ; and the lessee brought an ejectione firme . and the only question , as it was moved by glynn , was ; whether this lease , which did inure by way of estople , should binde the feoffee , or no : and by him it did , and rawlyns case in the rep. . expresly , and & phil. & mar. dyer agreeth . and the whole court ( crooke only absent ) without any argument , were clear , that it should binde the feoffee : for all who claim under the estople , shall be bound thereby , vid. edriches case h. . serjeant iermayn came into the court , and shewed cause why a prohibition should not be granted in the case of skinner before ; who libelled for tythes of coppice rooted up . he agreed that for timber-trees , above the growth of twenty , no tithes should be paid ; and so he said was the common law , before the statute of e. . which was but a confirmation of the common law. and he said , that as the body of the tree is priviledged , so are the branches and root also ; which is a proof , that where the body is not priviledged , there neither shall be the root ●or branches . and in our case he libels for roots of underwoods , and the underwood it self being titheable , therefore the roots shall be also tithable . and he said , that the 〈…〉 are not parcel of the land. but justice barckley was against it ; for they are not crescentia , nor renovantia , as tithes ought to be ; and therefore no tithes ought to be paid for them : and he said , that a prohibition hath many times been granted in the like cases . but dr. skinner did alledge a custome for the payment of tithes of them . and upon that they were to go to trial : and here it was said , that dr. skinner had used to have some special particular benefit of the parishioners , in lieu of tithe of roots . and thereupon barckley said , that it is a rule , where the parishioner doth any thing which he is not compellable by the law to do , which cometh to the benefit of the parson ; there if he demand tithes of the thing , in lieu whereof this is done , that a prohibition shall be granted . and there is another rule : that custom may make that titheable , which of it self is not titheable . and here he said to dr. skinner being then in court , that he had two matters to help him , and if any of them be found for him , that a prohibition ought not to be awarded . . justice barckley said , that if a man be living at the day of nisi prius , and dieth before the day in banck , the writ shall not abate . so if a man be living the first day of the ●●rliament , and dieth before the last day , yet he may be attainted : and the reason is , because in the eye and judgment of law , they are but one day by relation , which the law makes . . there were three brothers , the eldest took administration of the goods of the father , and after debts and legacies paid , the younger brothers sued the eldest in the ecclesiastical court , to compel him to distribute the estate . and thereupon a prohibition was prayed , and denied by the court : for they having jurisdiction of the principal , may have jurisdiction of the accessary . . a. libelled against b. in the spiritual court , for these words : thou art a drunkard , and usest to be drunk thrice a week . and upon that caroli , in easter-term ( as you may see before ) a prohibition was prayed , and granted . and now littleton the kings sollicitor came in court , and moved for a consultation : and he said , that the statute of articuli cleri gave power unto the ecclesiastical court to have conusance of those and the like words . register f. n. b. . they may hold plea for defamation ; as for calling adulterer , or usurer . h. . kellaway . h. . . and he cited many judgments in the like cases , where prohibitions had not been granted : and amongst others this case . mich. iac. inter lewis & whitton libel in the ecclesiastical court , for calling him pander , and no prohibition granted . and the like case was for calling another pimp , and no prohibition granted . justice iones : that a prohibition should be granted ; for they have conusance of defamation , for any thing which is meerly spiritual , or which doth concern it , where they have conusance of the principal , else not : as in heresie , adultery , and the like : but in this case they have not conusance of the principal . true it is , that it is peccatum : but if they should punish every thing which is sin , they would altogether derogate , and destroy the temporal jurisdiction . and therefore if i say , that another is an idle man , or envious , these are deadly sins ; and yet they have not conusance of them . and he cited coltrops case , adjudged in the common pleas , which was our very case in point : and there he said that upon solemn debate it was adjudged , that a prohibition should be awarded . bramston chief justice agreed . barckley contrary , that a consultation should be awarded : and he said , in many cases , although they have jurisdiction of the principal , yet they shall not have conusance ; as in the case of e. . tit ' consultation . but he said , that the offence of drunkenness is mixt , and is an offence against the spiritual , and common law also ; and if it be mixt , both may hold plea : and adultery and murder are the common effects of drunkenness ; which are offences against both laws , and therefore he shall be punished by both . but yet barckley yielded to the judgment cited by iones . and therefore the whole court ( crooke being absent ) was , that a prohibition should be awarded . . rolls moved this case : the parishioners of a certain parish in devonshire , did alledge a custom to chuse the two churchwardens of the parish , and they did so ; the parson chose another : and the archdeacon swore one of the church-wardens chosen by the parish , and refused to swear the other , but would have sworn him who was chosen by the parson . and because they did refuse him , they were excommunicate . rolls prayed a mandat to the archdeacon , to compel him to swear the other chosen by the parish ; and a prohibition also , by reason of the excommunication . and he cited a preeedent for it , which was the case of sutton-valence in kent . and the whole court ( crooke being absent ) inclined to grant them : for they said , they conceived no difference betwixt london and the country , as to that purpose : for as in london they are a corporation , and may take land for the benefit of the church : so throughout england , they are a corporation , and capable to take , and purchase goods for the benefit of the church . and therefore they did conceive there was no difference . see the case before , the case of the parish of saint ethelborough , london . . keeling moved to quash an indictment of rescous , because it is shewed that the rescous was at w. and doth not shew that w. was within this county ; and if it was not within the county , then it was an escape , and no rescous : and we cannot aver in this case , that it was out of the county . farther , it was not shewed where the rescous was , so that upon the matter it is no arrest ; nor was the indictment vi & armis , as it ought to be . as to the first , the court strongly inclined , that they might well intend it to be within the county , because the indictment says , in com. meo . apud w. tent . but for the other exceptions , the indictment was quashed . . in trespass of assault and battery , and wounding , the defendant pleaded not guilty , as to the wounding ; and pleaded special matter of justification as to the assault and battery ; and found for the plaintiff ; and it was moved in arrest of judgment , that the plea was repugnant , for assault and battery doth imply wounding , and therefore it is repugnant for him to justifie it , for it is a confession of wounding . but justice crooke and justice barckley ( the others being absent ) were clear , that the plea was good ; for so is the common form of pleading : and farther , he might be guilty of the battery , and not of the wounding : for crooke said , wounding implied assault and battery ; but not è contra . brookes against baynton . . in a writ of error to reverse a judgment given i● the court of common pleas , in trespass for assault battery and wounding ; it was assigned for error , by maynard , that there was variance betwixt the original and the declaration ; for the original was only of battery and wounding of himself ; and he declared of battery and wounding of him and his horse also ; for he said , that quendam equum , upon which the plaintiff equitavit , percussit , its quod cecidit , &c. and that was not helped by the statute . but rolls contrary , and here is no variance : for the alledging of striking of the horse was only inducement to alledge the battery of himself ; for he doth not bring the action for the beating of his horse , for it was not alledged that it was his own horse , but quendam equum ; and for that reason , by the whole court the judgment was affirmed . more of the case of leake against dawe● . . serjeant mallet for the plaintiff , that the scire fa●●●s is good , notwithstanding the exceptions , for these reasons . first , because it is not a declaration , but a writ ; which is not drawn by counsel ; and it is to declare the matter briefly ; but if it were in a declaration , yet i hold it good , because he saith , that it was modo & adhuc seisitus existit , which as i conceive , helps it : and besides , it is not his title , but the title of his adversary , which he is not bound to plead so exactly as his own title . see for that , eliz. dyer . . car. beswixt green and moody , in audita querela , he shewed that there was debt brought upon a lease for years , to begin at a day to come , and did not shew whether the lessee entred before the day or not , so as he might be a disseisor : and yet notwithstanding it being in audita querela , which is an equitable action , it is good . hil. iac. betwixt blackston and martin in this court , a scire facias was brought to avoid a statute , and it was shewed that the defendant was tenant , but doth not shew how tenant ; but it said ad grave damnum , which could not be , if he were not lawful tenant ; and therefore adjudged good , notwithstanding that general allegation . see new book of entries , mollins case , , . a strong case to this purpose . besides , he said , that here issue was taken upon another point , whether he bargained or not ; and therefore he conceived in this scire facias , that it is not h●r● needful to shew the inrolment ; and for these reasons , prayed judgment for the plantiff . serjeant wild for the defendant , that the shewing of the inrolment is not helped by the issue joyned , being matter of substance ; for he saith , that virtute cujus , and of the statute of h. . of uses , that the defendant was seised , and we ought not to intend an estate by any other means or seisin , than himself hath alledged . and th●refore it ought to be adjudged upon his own pleading , whether the defendant hath any estate without inrolment or entry , by force of the statute of uses . and i conceive he hath not . true it is , that all circumstances ought not to be pleaded , but the substance , viz. the inrolment ; and therefore it ought to be pleaded , as fulmerston and stewards case is in the commentaries , and eliz. dyer . and no estate passeth without inrolment : not a fee-simple ; for then there ought to be inrolment according to the statute : and no estate at will can pass without entry , for that is as opposit ' in objecto , that a man shall be tenant at will against his will ; for his entry proves his intent to hold at will. for littleton saith , by force whereof he is possessed ; so that there ought to be possession to make an estate at will. and in case of a lease for years , although it be true that he is a lessee for years to many purposes before entry , yet an entry ought to be pleaded . and dyer . is non habuit ; non occupavit is no good plea in a lease for years ; contrary in the case in a lease at will ; which is a strong proof , that he is not lessee at will before entry . iac. betwixt bellingham and fitzherbert . el. dyer . eliz. mockets case , & mich. iac. betwixt coventry and stacie , resolved that a release to the bargainee before inrolment is not good : and by consequence he hath not an estate at will before inrolment , or entry made ; for if he had , the release should be good . h. . the lord lovells case , that no estate at will. lastly , parrolls font plea , and the case of a man shall not be taken to be otherwise than he hath pleaded it ; and he having pleaded that virtute cujus , and of the statute of uses , that the defendant was seised , he shall be concluded thereby . h. . a man shewed , that another licenced him to enter into his land and occupy for a year , it is not good , but he ought to plead it as a lease . besides , the virtute cujus is not traversable , as the rep. pridle and nappers case is ▪ rolls accord , and he said , that if it shall be construed , that the conusee shall have an estate by disseisin , the plaintiff ought to plead it , that the defendant was seised by way of disseisin . and where it was objected , that this is a writ , and not a declaration , he answered , it is a writ and declaration also ; and therefore he ought to declare his case at large , and the defect of the conveyance , viz. the want of inrolment is not supplied by the virtute cujus . and he having made that his title , you ought to judge upon it , and not otherwise . but the whole court , viz. bramston ch. just. crooke , iones , and barckley , justices , that the scire facias was good , for it was said that the defendant perquisivit sibi & heredibus suis , and concludes , virtute cujus , and of the statute of uses , he was seised ; which is a good averment that he hath a fee , and it was not material how he hath it : and he need not shew his title so fully , being a stranger to it . and this being an equitable action , if the court upon this writ shall conceive sufficient matter , upon which the plaintiff may bring his action , it is good : and the court ought to give judgment for him : for being but matter of form , it is not material , unless a demurrer had been special upon it . and wheresoever there is damnification , there the court ought to give judgment for the plaintiff , notwithstanding a defect of form in the writ . and barckley said , that if a man be seised of bl. acre and wh. acre , and acknowledgeth a statute ; and afterwards makes a lease for years of wh. acre , the remainder over in fee , & then the conusee purchase bl. acre , and extendeth the land of the lessee for years ; he held , that he in the remainder should have an audita querela , or a scire facias for the damnification , which came to his interest . and he held , that he who had but interesse termini should have an audita querela , that one jointly only might have an audita querela , and that the death of one of them should not abate the writ . and he held that cestui que use before the statute , might have an audita querela : all which proves it to be but an equitable action , upon which the law doth not look with so strict an eye , as upon other actions . and as to the objection which was made by r●lls , that he ought to shew , that the conusee had an estate by disseisin : iones was against that , for that no man is bound to betray his title . and for these reasons it was adjudg●d by the whole court , that the judgment should be affirm●d . . a writ of error was brought to reverse a judgment given in the common pleas , and after a certiorari , and error● assigned , they in the common pleas did amend the record . and by the whole court ( crooke only absent ) they cannot do it , for after a transmittitur , they have not the record before them . and barckley said , that the difference stands betwixt the common pleas and the kings bench , and betwixt the kings bench and the exchequer . for the record remains always in this court , notwithstanding a writ of error brought in the exchequer-chamber ; and therefore we may amend after . wherefore the court said , that if the thing were amendable , that they would amend it . but the court of common pleas cannot . sewel against reignalls . . the case was thus : husband and wise did joyn in an action of debt in the right of the wife , as administratrix to i. s. and the defendant being arrested at their suit , did promise to the husband , in consideration that the husband would suffer him to go at large , that he would give him so much . the husband and wise did joyn in an action upon the case , upon the promise made to the husband alone . and upon non assumpsit pleaded , it was found for the plaintiff . porter moved in arrest of judgment , that the promise being made to the husband only , that they ought not to joyn in the action . barckley : the action is well brought , for the husband is administrator in the right of the wife : for otherwise the consideration were not good . for if he were not administrator , then he could not suffer him to go at large : and then if he be administrator in the right of his wife , the promise which is made to the husband , is in judgment of law also made to the wise ; and they ought to joyn in the action . but crooke iones , and bramston chief justice contrary , that ●●e action will not lie , because the promise is of a collateral thing , and not touching the duty due to the wise , as executrix , for then perhaps it would have been otherwise . and they said ( against the opinion of barckley ) that this sum received should not be assets in their hand . and bramston said , that it is not like the case , where a man promiseth to the father of iane gappe , in consideration of a marriage to be had betwixt his daughter and him , that he would make her a joynture ; there as well the daughter as the father may bring the action . and it was adjourned . . a parson libelled in the ecclesiastical court for tithes . and after sentence rolls moved for a prohibition upon the suggestion of a modus decimandi ; but it was not granted , because too late . but rolls took this difference , and said , that so had been the opinion of the court , where the party pleads the modus , and where not ; for if he plead it , there notwithstanding a sentence , prohibition hath been granted ; contrary where he doth not plead it . but notwithstanding the court refused to grant a prohibition . . the parishioners of a parish , together with the parson , sued the churchwardens in the ecclesiastical court , to render accompt , and recovered against them , and costs taxed . afterwards the parson released the costs , and notwithstanding the parishioners sued for the costs : and thereupon a prohibition was prayed ; because that the costs are joyntly assessed , and the release of one would bar the others . but the opinion of the whole court , that a prohibition shall not be granted : for the costs recovered there , an action might be sued in the ecclesiastical court : and therefore although that in our law , the release of one shall bar the others ; yet the action being sued there , and they having conusance thereof , the same is directed according to their law. and therefore it hath been adjudged , that if the husband and wise sue in the ecclesiastical court for the defamation of the wife , and sentence be given for them , and costs taxed , and afterwards the husband releas●th the costs , in the suit commenced in the ecclesiastical court , it shall not bar the wife , for the reasons given before . brooke and booth against woodward administrator of john lower . . in debt upon a bond , the defendant prayed oyer of the condition , which was entred , in haec venba . the condition of this obligation is such , that if the obligor did deliver to the plaintiffs two hundred weight of hops in consideration of ten pounds already paid , and fifty five pound to be paid at the delivery ; and the plaintiffs to chuse them out of twenty four bags of the obligors own growing , and to be delivered at f. at a day certain . provided , that if the plaintiffs should dislike their bargain , that then they should lose their ten pounds : and if they liked they should give ten pounds more , &c. upon oyer of which , the defendant pleaded , that the plaintiffs non elegerunt . and upon that the plaintiffs did demur in law : and shewed for special cause of demurrer , that the plea was double . withrington for the plaintiffs , that the plea is double , in that the defendant hath alledged , that he was ready , and that the plaintiffs non elegerunt ; which are both issuable pleas , and each of them , of it self ( admitting no request of the part of the defendant requisite ) is sufficient in bar of the action . besides , he conceived , as this case is , that the first act ought to be done by the defendant ; for he ought to shew the bags , and request the plaintiffs to make election . and he compared it to the case in e. . . and also to hawlins case , rep. . farther , he conceived that the defendant ought to have alledged , that he had twenty four bags , and twenty four bags of his own growing : for if he have not them , it was impossible for the plaintiffs to make choice , and by consequence the condition broken . twisden contrary , that the plea is not double , for the alledging himself to be ready , was but inducement to the subsequent matter , quod non elegerunt . and he relied only upon their election ; and in proof thereof he relied upon the books , h ▪ . . and e. . . farther , here no notice is requisite , not he ought not to aver that he had them ; for he being bound to deliver them , he is estopt to say that he hath them not . eliz. dyer . and eliz. dyer . as to the shewing of them , we ought not to do it , for the plaintiffs ought to do the first act , viz. request the defendant to shew th● bags for them to make choice of . and the whole court strongly enclined against the plaintiffs , for the reasons before given , and they advised them to waive the demurrer , and plead de novo ; which they did . thorps case . . in an action upon the case upon assumpsit , it was agreed by the whole court , that where there is a mutual promise , viz. a. promiseth to b. that he will do such a thing ; and b. promiseth to a. that in consideration thereof , that he will do another thing ; if a. bring an action against b. and alledge a breach in non faciendo , and saith that he is ready to do the thing which he promised , but that the other refused to accept of it : notwithstanding the breach is well laid , and the action well lieth ; for it was idle , and more than the plaintiff was compelled to do , to shew that paratus est to do the thing which he promised : so that if there were a breach upon the part of the defendant , it is sufficient , and if there was a breach on the plaintiffs part , the defendant ought to bring his action for it . and the difference was taken by bramston , where the promise is conditional , and where absolute , as in our case . and agreeing with this difference , it was said at the bar and bench , that it was adjudged . . hutton moved to quash certain presentments , because they were taken in a hundred-court , which is not the kings court ; and therefore coram non iudice . it was said by justice iones , that a hundred may have a leet appendant to it ; and then they were lawfully taken . barckley and the whole court answered , because it doth not appear to the court , whether there was so or not , that the presentments were void . . concerning damage clear , it was agreed , that it was hard that the plaintiff should be stopt of his judgment until he had paid his damages clear . for perhaps , if the defendant be insolvant , the plaintiff should pay more for damages clear , than he should ever get . and therefore the court was resolved to amend it . this damage clear , is twelve pence in the pound of the damages given to the party in this court , and two shillings in the common pleas . see the register , where is a writ for damage clear . harris against garret . . it was agreed by the whole court , that it is no good plea to say , that such an one was bound in a recognisance , and not to say per scriptum obligat ' ; and to conclude that it was secundum formam statuti , doth not help it . but in a verdict it was agreed to be good . and according to this difference , it was said by the court , that it was adjudged in goldsmiths case , and fulwoods case . . it was agreed by the court , that upon a certiorari to remove an indictment out of an inferiour court , that the defendant shall be bounden in a recognisance to prosecute with effect , viz. to traverse the indictment , or to quash it for some defect . and if he doth not appear , an attachment shall issue out against him . iustice crooks case . . it was agreed by the court , that although a bill be preferred in the starchamber against a judge for corruption , or any other , for any great misdemeanour ; yet if the plaintiff will tell the effect of his bill in a tavern , or any other open place , and by that means scandalize the defendant ; that the same is punishable in another court , notwithstanding the suit dependant in the starchamber : and so iones said , that it was adjudged in a bill in the starchamber against justice crooke ; which was abated , because it was brought against him as sir george crooke only , without addition of his office and dignity of judge . trinit . º car ' in the common pleas. . an apothecary brought an action upon the case , upon a promise for divers wares and medicines , of such a value , and shewed them in certain . the defendant pleaded in bar , that he had paid to the plaintiff tot & tantas denarior ' summas , as these medicines were worth , and doth not shew any sum certain . and the plea was holden to be no good plea ; wherefore judgment was given for the plaintiff . . a contract was made betwixt a. and b. mercers , that a. should sell to b. all his mercery wares , and take his shop of him : in consideration of which , a. promised that he would not set up his trade in the same town . and adjudged a good assumpsit in the kings bench , as littleton chief justice said . but if one be bound that he will not use his trade , it is no good bond. . rolls moved this case : a writ of error was brought upon a judgment given in yarmouth , and the case was thus : a. and b. were bound to stand to the arbitrament of i. s. concerning a matter which did arise on the part of the wise of b. before coverture . i. s. awarded , that a. should pay to b. and his wife ten pounds , at a place out of the jurisdiction , and thereupon , upon an action brought upon the bond , a breach was assigned for not payment of the mony at the place . and here it was objected , that it was error , because it was there assigned , for breach , the not payment of the mony at a place out of jurisdiction : and for that cause the judgment was not well given . secondly , because that the award was , that payment should be made to b. and his wi●● which was out of the submission . but notwithstanding , judgment was affirmed by the whole court. for as to the 〈◊〉 issue could not be taken upon payment or not payment o● of the jurisdiction ; because it was not traversable . as 〈◊〉 the second , the controversie did arise by reason of the wi●e and therefore the award was within the submission , bei●● made that the payment should be to both . . it was said by the court , that it was one kellway case , adjudged in this court , that a promise made to an atturny of this court , for solliciting of a cause in chance●● was good ; and that it was a good consideration , upon whi●● the atturny might ground his assumpsit : for it was res●●ved , that it was a lawful thing for an atturny to sollicite . . the court would not give way for amendments inferiour courts . . by iones and barckley justices , if there be an insufficient bar , and a good replication , after a verdict , the●● shall be a repleading . contrary , where there is no verdict . smithson against simpson . . a. and b. were bound to stand to , and observe su●● article , agreement , order , or decree , as th● kings council of the court of request should make . a brought an action upon the bond against b. and pleaded that the kings councel of the court of request made such order and decree , and that the defendant did not observe it . the defendant pleaded , that the king and his council did not make the decree : and adjudged by the court that the plea was not good . . sir matthew minkes was indicted of manslaughter , and found guilty , and it was moved by hol●orne , of counsel with sir matthew , that the iudictment was insufficient , because there was dans , &c. without adtunc & ibid. according to presidents ; as also because it was plagam sen contusionem , which is incertain : as also that the party killed languebat à pred' die , usque decimam sextam . and he said , that there was no time between those two days , but it ought to have been , that he languished from such an hour till such an hour ; and that , he said , were the ancient presidents . and he said , that an indictment that a. killed b. inter horam decimam & undecimam was adjudged to be naught . and he took many exceptions : all which were disallowed by the court. for which cause sir matthew prayed his clergy , and had it . pasch. º car. in the common pleas. weeden against harden . . custome to pay tithes in kinde for sheep , if they continue in the parish all the year ; but if they be sold before shearing-time , but an half-penny for every one so sold. and custome in the same parish also , to pay no tithes of loppings or wood for fire , or hedges , &c. the first is an unreasonable custom ; for by such means the parson shall be defeated of his tithes . but the last custom is good , by the whole court. sir edward powells case . . the lady powell sued sir edward powell her husband , in the high commission court for alimony . whereupon a prohibition was prayed in this court , and granted . serjeant clark who argued for the prohibition : the spiritual court cannot meddle with any thing which is not redressable by them : they may compel a man tractare uxore● , or divorce them ; but not grant alimony , which doth appertain to the judges of the common law. & h. . there is a writ directed to the sheriff , to set out reasonable estover● for the alimony of the wife . president since the statute of eliz. where prohibitions have been granted in this case . viz. sir william chenyes case , mich ' iac. in comm ' ban●● , who committed adultery , and was separated , and the wi●e sued for alimony , and a prohibition granted . p. iac. a prohibition granted . and by the statute of eliz. they have not power to hold plea of alimony . the words of the statute are , reform , redress , &c. and it is not apt to say that alimony shall be reformed , or redressed . and besides alimony is a temporal thing , and chargeth a mans inheritance : and therefore they shall not intermeddle with it serjeant rolls contrary , she may sue for alimony in the ecclesiastical court ; but if they proceed to fine or imprisonment , then a prohibition lieth . they have power of separation , which is the principal ; and therefore of alimony , which is incident . and the high commission have the same power given to them by the statute of eliz. as the spiritual court hath , and therefore they may meddle with alimony . and where it was before objected , the great inconvenience to the party , by the citing him out of his diocess , for by that he should lose the advantage of his appeal : rolls said , it was good for any within the province , and that is the court of the province . banks chief justice : although that there be presidents , that the high commission have ho●den plea of alimony , and granted the same , yet it was not law. and although though that alimony be expressed in their commission , that doth not make it law , if it be not within the statute . as to the citing out of the diocess , he conceived the commission should be useless , if they might not do it : and therefore he granted a prohibition . crawly , reeve , and foster justices , agreed . but they doubted whether the citing out of the diocess were good or not , for the great prejudice which might ensue to the party in losing his appeal . and in answer to the objection of rolls , the chief justice said , that the ecclesiastical court had not jurisdiction of alimony ; but if they had , yet all the jurisdiction of the spiritual court is not given to the high commission , by the statute of eliz. and they all agreed , that they might as well charge my land with a rent-charge , as grant alimony out of it ; and a prohibition was granted . . no sequestration can be granted by a court of equity , until the proces of contempt are run out . and by reeve and foster justices , the granting of sequestration of things ●●llateral , as of other lands or goods , is utterly illegal . . whereas upon suggestion of a modus decimandi , a prohibition was granted : now a consultation was prayed as to offerings , and granted ; because the modus , &c. doth not go to the personalty . . upon a jury retorned , a stranger who was not one of the jury , caused himself to be sworn in the name of one who was of the jury . and he against whom the verdict passed , moved the court for a new trial upon that matter . but the court would not give way to it ; because it appeareth to them that he is sworn upon record . but all the court agreed that he might be indicted for that misdemeanour : and by reeve and foster justices , the parties may have an action upon the case against him . . it was taken for a rule by the court , that no amendment should be after a verdict , without a consent . . trover and conversion against husband and wife , and declared that they did convert ad usum corum . the jury found the wise not guilty . and by the court , this naughty plea is made good by the verdict . sir richard greenfields case , in the kings bench. . thou ( innuendo captain greenfield ) hast received mony of the king to buy new saddles , and hast co●sened the king , and bought old saddles for the troopers . t●ver : it is not actionable . car. the mayor of tiverto● case : one said of him , that the mayer had cousened all h●● brethren , &c. not actionable , iac. in the kings bench , tha● the overseers of the poor had cousened the poor of their bread ▪ not actionable . eliz. in the kings bench , kerby and wallers case , thou art a false knave , and hast cousened my tw● kinsmen , not actionable . k. is a cousening knave ; not actionable . eliz. in the kings bench. serjeant fenner hath cousened me and all my kindred , is not actionable . words are actionable either in respect of themselves , or in relation to the person of whom they are spoken : where liberty is infringed , the estate impaired , or credit defamed ; there they a● actionable . mich. h. . rot. . villain , is not actionable . morgan and philips case . that he is a scot , actionable ▪ because he is an alien born . hill. . car. in com. ban. si● miles fleetwoods case . mr. receiver hath cousened the king ▪ actionable in respect of his office of receivership . and se● it was afterwards adjudged upon error brought in the kings bench. if these words had been spoken of the kings saddler , they had been actionable , for thereby he might lose his office : but there is no such prejudice in our case ; and he is of another imployment , and is but for a time only . but by heath justice , and bramston chief justice , the words are actionable , for it is not material what imployment he hath under the king , if he may lose his imployment or trust thereby . and it is not material whether the imployment be for life or years , &c. . a lawyer who was of counsel may be examined upon oath as a witness to the matter of agreement , not to the validity of an assurance , or to matter of counsel . and in examining of a witness counsel cannot question the whole life of the witness , as that he is a whoremaster , &c. but if he hath done such a notorious fact which is a just exception against him , then they may except against him . that was onbies case of grays-inn ; and by all the judges it was agreed as before . and by reeve justice , if a counsellor say to his client , that such a contract is simony , and he saith , he will make it simony , or not simony : and thereupon the counsellor that a simoniacal contract , it is no offence in the counsellor . pasch. º car. in the kings bench. . prescription to have common for all his cattle commonable , is not good , for thereby he may put in as many beasts as he will. but a prescription to have common for his cattle commonable levant and couchant , is a good prescription . and it was said , that that was sayes case of the county of lincoln adjudged in this court. . in tompson and hollingsworths case , it was agreed , that a court of equity cannot meddle with a cause after it hath received a lawful trial and judgment at the common law , although that the judgment be surreptitious . . the statute of eliz. enacts , that if a man be presented , admitted , instituted , and inducted upon a simoniacal contract , that they shall be utterly void , &c. whether the church shall be void without deprivation , or sentence declaratory in the spiritual court or not , was the question in a quare impedit brought by sir iohn rowse against ezechiel wright . rolls and bacon serjeants , that it is absolutely void without sentence declaratory , &c. where the statute makes a thing void , it shall be void according to the words of the statute , unless there shall be inconvenience or prejudice to him for whom the statute was made . the statute of h. . cap. . that an utlagary shall be void if process do not issue to the place where the party is dwelling ; yet it is not void before errour brought . the statutes of eliz. & eliz. that all leases by a bishop not warranted &c. shall be void : they are not void , but voidable only ; which agreeth with the reason of the rule given before . the statute of h. . . that if the king grant lands by patent not found in the office , that the patent shall be void ; it is void presently , m. h . grants . and stamford . although they be matter of record . the statute of eliz. is expresly that it shall be void , frustrate , and of none effect ; therefore by the rule before given , it shall be absolutely void . m. iac. stamford and dr. hutchinsons case . resolved that an incumbent presented by simony cannot sue for tythes against his parishioners ; a villain purchaseth an advowson , the church becomes void , the lord presents by simony , and the clark is admitted , institute , and inducted , yet it is void , and doth not gain the advowson to the lord. institut . a. if an incumbent take a second benefice , the first is meerly void . rep. hollands case . the difference is , where it is of the value of l. where not . and there is difference betwixt avoidance by statute , and avoidance by the ecclesiastical law. avoydance is a thing of which the common law takes notice , and shall be tried by jury if it be avoydance in fact ; if an avoydance in law , by the judges . if a parson doth not read the articles according to the statute of eliz. it is ipso facto void , without sentence . rep. . greens case eliz. eatons case . instit. . a. express in the point . and the difference is , that before the statute of eliz. it was only voidable by deprivation ; but now by the statute it is absolutely void . mich. ▪ iac. cobbert and hitchins case . mich. eliz. baker and rogers case . iac. goodwins case , in com' banc. in all which cases it was not resolved , but passed tacitely , and without denial , that a presentation by simony was void , without declaratory sentence . it was objected , that it is clear by the ecclesiastical law , it is not void without a sentence declaratory . it is answered , of things of which our law and the ecclesiastical law take conusance , we are only to relie upon our law , and not upon the ecclesiastical law : especially when the ecclesiastical is repugnant or contrary to our law , as in this case it is . the judges of the common law shall judge the church void , or not void . fitz. annuity . & iac. in the kings bench , hitchin and glovers case , in an ejectione firme . in this case it was resolved , that if i. s. marry two wives , the judges of the common law may take conusance of it : yet marriage is meerly an ecclesiastical thing . it was objected , that the first branch of the statute of eliz. that it shall be void , &c. secondly , that it shall be void as if he were naturally dead , &c. so that the adding of these words ( as if he were naturally dead ) in the later clause , prove that it was the meaning of this statute , that it should not be void in the first case , without sentence declaratory . it is answered , there is a difference in words , not in substance , or the intent , & qui haeret in litera , &c. iermin and taylor serjeants , that it is not void before sentence , &c. first , admission , institution , and induction , are judicial acts , and done by the bishop : and therefore shall not be void before an act done to make them void , which is sentence declaratory , or deprivation . secondly , the statute of eliz. saith , it shall be void , not that it is , &c. thirdly , the ecclesiastical l●w is , that no presentation , &c. shall be void before sentence , &c. fourthly , the ecclesiastical law is judge of it , &c. plenarty shall be tried by the bishop , not by jury . rep. . a. refusal shall not be tried by jury , but death shall . rep. . h. . profession shall be tried by the spiritual court , rep. . b ▪ . vid. . rep. . a. the credit which our law gives to the ecclesiastical law. it is there put , that one was divorced without his knowledge , which was said to be a strange case . fifthly the presentee by simony doth remain incumbent de facto , although not de jure ; and that by the words of the statute which makes the church void , as to the king only , not as to the incumbent , without declaratory sentence : and the church is no more capable to have two incumbents , than a woman to have two husbands . there is a difference where the incumbent presented by simony is alive , the same is not void in facto , without sentence declaratory : but if he be dead , there itis . and this difference stands upon the two clauses in the statute of eliz. and the statute of car. of election of burgesses , taken notice of avoidance de facto & de jure . trinit . car. in com. banc. ogelbics case . one was presented within the age o● twenty three years , it did not give lapse without notice : for it was avoidance in law , not in fact. vid. stat. . eliz. for excommunicating a striker in the churchyard , &c. this statute of eliz. differs from the statute of eliz. for not reading of the articles . those statutes say , that it shall be void ipso facto , but not so in our case . and the cases cited for authority in the point , are betwixt party and party , and not in case of a third person , as our case is . eliz. dyer a meer lay-man is presented , it is not ipso facto void , without sentence . so it is of one within the age of nine years ; for he cannot govern others . trinit . iac. in the common pleas , cooke and stranges case . the king presents , and before institution presents another , it is good : but in the interim , the king ought to repeal his first presentment , and that is a revocation , vid. dyer . a. where it is a quere , whether he need not to alledge that a repeal was brought and shewed , &c. the king grants , and afterwards makes a second grant of the same thing . there are many examples in brooke and fitzherbert , that it is not good without a repeal . but this case , viz. of h. , . extends only to ●and , and not to an advowson , &c. but it was resolved by all the judges , that the church was void by the statute of eliz. to all purposes , and to all persons , as to the p●r●shioners , as to a stranger , who brings trespass , or ejectione firme as to the king , as to him who presents ; and that without deprivation , or sentence declaratory in the ecclesiastical court : and accordingly judgment was given . hichcocke against hichcocke . . the case was this : the vicar did contract with a parishioner to pay so much for encrease of tithes , and died ; and his successor fued in the ecclesiastical court for them . and a prohibition was prayed , and granted by all the justices . and here it was said , that a real contract made by the parson , and confirmed by the ordinary , could not be altered in the spiritual court. and by serjeant mallet ; a real accord though it be between spiritual persons , and of spiritual things yet it is only questionable at the common law. e. . annuity . e. . . & . and by serjeant clarke , real composition by a parson , who claims not any encrease of the endowment to the parsonage , shall not binde his successor . the words of the contract here were , inter se convenerunt : and that is no real composition , although that the bishop call it so , realis compositio , and his calling of it so doth not alter the nature of it , but it remains a personal agreement ; and so shall not bind the successor , although it be confirmed by the bishop . a parson cannot do any thing to the damage of his successor . the vicar took oath , that they were not for encrease of tithes : the ordinary being a stranger to the composition , is not made a party by his confirmation , nor is the composition altered by it . littleton sect. . the lord confirms the land to the tenant , the same doth not alter the tenure , nor prejudice the lord. the power of the bishop , augendi & minuendi the portion of the vicar , is by the common law , for general cure of souls . the parson and vicar have privity betwixt them . e. . . h. . , ass annuity . rep. . plow . com. . . e. . . h. . . dyer & . . a prohibition was prayed to the court of requests , and the case was thus : a feme sole possessed of a term , conveyed the same over in trust for her , and covenanted with i. s. whom she did intend to marry , that he should not meddle with it , and for that purpose took a bond of him . they intermarried : he may intermeddle with it , but he shall not have it ; and by equity he cannot assigne it , by reason of the covenant before marriage . a feme sole conveys a term in trust , and then marrieth ; the husband assignes it , the trust , not the estate shall pass , by reeve and foster . but by all the judges a prohibition shall not be , for it is matter only for equity : but if they direct demisit , or non demisit , assignavit , or non , &c. then they exceed their jurisdiction , and a prohibition heth . . a woman brought a writ of dower , and recovered , and upon a suggestion made upon the roll that the husband died seised , a writ of enquiry of damages issued forth . and before the retorn thereof , a writ of error was brought ; and it was by steward against steward ; and two things were moved : . whether error would lie before the retorn of the writ of enquiry , or not . . whether the writ of error be a supersedeas to the writ of enquiry . and by taylor and rolls serjeants , that error doth not lie before judgment upon the writ of enquiry . and this case they compared to medcalfes case rep. . but by serjeant bacon it is well brought . dower is by the common law , and damages are given by the statute of merton , and that is the main judgment . . rep. , . and the very case is put in medcalfes case , rep ▪ and distinguished from other cases . and it was argued by another serjeant , that the error was well brought , because that in dower the judgment doth determine the original : and therefore at the common law error will well lie . and the damages are given by the statute of merton , but that doth not alter the judgment , or the nature of the action . it differs from the case of judgment in an ejectione firme , and accompt ; for after such judgments no●suit may be : but not so in the case of dower , in which judgment is , quod recuperet , &c. a precipe is brought against two , one pleads to issue , the other an insufficient plea , upon which judgment is given . no error lieth before judgment be given for the other : for the whole matter is not determined . but in several precipes against two , it is otherwise . . h. . . fitz. scire facias . rep. . a. b. in case of ejectione firme it is a quere if error may be brought , &c. and bankes chief justice said that it had been adjudged both ways : but that differs from our case , for in that damages are given by the common law. judgment is , in a quare impedit error may be brought before , &c. which is like to our case , for damages in both cases are given by statute . and where it was objected , that thereby damages should be lost ; he answered , no. for the kings bench may award a writ of enquiry of damages . and the rep. is express authority . . the error is no supersedeas , &c. iac. in tincke and brownes case , it was ruled and resolved , that a writ of error brought , was not a supersedeas to the writ of enquiry of damages . but it was resolved by all the judges , that the error was well brought , for the reasons before given : and that error is a supersedeas to the writ of enquiry . and it was entred for a rule , that in all writs of enquiry of damages , notice ought to be given aswel in real as personal actions . . if a prisoner will remove himself by a habeas corpus , he shall pay the costs of the removal : but it the plaintiff will remove the prisoner , he shall pay reasonable charges . . dickenson libelled against barnaby in the spiritual court for these words : d. is a beastly quean , drunken quean , copper-nose quean , and she was one cause wherefore barnaby left his wife , and hath mispended five hundred pounds , and that she keeps company with whores . and a prohibition was prayed and granted , because that the words are not actionable . . hill. . car. in this court. a. a poor man sold his estate for twenty pound yearly , to be paid during his life : for the security of which , the vendee was bound to a. and another in a thousand pounds ; the other releaseth the bond , the mony not being paid . a. is compelled to have relief of the parish for his maintenance . the churchwardens and a. exhibited a bill in the court of requests , and there had remedy . . a. and b. his wife present to a church , to which they have no right . question , whether that doth grant any thing to the wife or no ? resolved , no. for the wife is at the will of her husband , and presentation is but commendation , or the act of the husband , &c. and it is not like unto an entry in land by them . mich. car. betwixt nesson and hampton . otherwise it is when the wife hath right . sir john pits case . . in the case of sir iohn pits philizor of london , it was moved , that his executors might have the profits of the writs which are to be subscribed with his name , forasmuch as all process of the same suit ought to have the same name subscribed to them : for the attendance of them being necessary , they ought to have the profits according to it . tooleys case , hobarts reports . the reason which was given to the contrary was , because there was another officer , who is to answer any damages , by reason whereof he is to have the benefit . . judges are the only expositors of acts of parliaments , although they concern spiritual things , searles case , hobarts rep. . . e. . , . . if horses be traced together , they are but one distress . and note , fetters upon a horse leg , may be distreined with the horse . hillary º car. in the kings bench. . a merchant goeth beyond sea , and marrieth an alien . it was resolved , that the issue is a denizen ; for the husband being the kings subject , the wife is not respected , because she is at the will of her husband , and also because they are but one person in law. bacon and bacons case . . if a town hath a chappel , and bury at the mother-church , and therefore have time out of mind repaired part of the wall of the church , it is good to excuse them of repairing the church . inhabitants of such a place prescribe to repair a chappel of ease : and in regard thereof , that they have time out of mind been free from all reparations of the mother-church , it is good . but if such a chappel hath been built within time of memory , then they ought to have proof of some agreement , by virtue of which they are discharged of reparations of the mother-church . pasch. car. in the kings bench. the inhabitants within the parish of h. having a chappel of ease , and custom that those within such a precinct ought to find a rope for the third bell , and to repair part of the mother-church : in consideration of which , they have been freed from payment of any tithes to the mother-church . whether it be a good custome , or not , quaere , for it was adjorn . hillary º car in the common pleas. . where the ecclesiastical court hath conusance of the cause , there proceedings , although they be erroneous , are not examinable in this court. and it was given for a rule , that it is no cause to grant a prohibition . . the sheriff in the retorn of a rescous , said , that he was in custodia ballivi itinerantis . and that a rescous was made to his baily itinerant ; and it was not good : otherwise , if he had been baliff of a liberty , for the law taketh notice of him . and therefore the court did award that the rescousers should be dismissed , and that the sheriff should bring in the man by a certain day at his peril . otherwise it is in the kings bench. . one cannot be attorney within age , because he cannot be sworn . . commissioners have a warrant , and they execute it with another who is a stranger to the warrant ; it is good , and the other person is but surplusage . . a prohibition after sentence shall not be granted but in some especial case . . it was ordered by the lords house of parliament , that only menial servants , or one who attended upon the person of a knight or burgess of the parliament , should be free from arrest . . administration is granted to the wife , the husband having many children . whether it be in the power of the ordinary to make distribution , or not . first , if there be an executor , then not . secondly , after distribution there may be a debt which was not known at the time , and then the administrator should pay it of his own goods . and therefore there can be no distribution . on the other side , it was said , if the ordinary shall not distribute , then if a man dieth intestate , and hath goods of the value of an hundred pounds , and administration be committed to the wise , she should have all , and the children nothing ; which would be hard . . a thing which may be tried by a jury at the common law , is not triable in chancery : for in the first case , if they give not their verdict according to their evidence , an attaint lieth : but in the other there is no remedy . . after a writ of error granted , a warrant of atturney cannot be filed , if the party be alive who made , the warrant : but otherwise if he be dead . . a declaration cannot be amended in matter of substance , without a new original : otherwise of amendments of matter of form. . the statute of & e. . cap. . and eliz. c. p. . prohibite any man to be absent from church , having no ●awful or reasonable cause . a man was sued in the ecclesi●stical court for being absent from church ; and he pleaded ●mething by way of excuse . hyde serjeant prayed a prohibition , because they ought not to hold plea of the excuse : but the court did agree that they might hold plea of the excuse , otherwise upon a false suggestion you would defeat the ecclesiastical court of all conusans in such cases . and therefore they were all against the prohibition , and by the court they ought to plead their excuse there ; and if they will not admit of it , then a prohibition shall be granted . and note , that it was said by bankes chief justice , that before the statute of eliz. the ecclesiastical court might punish any person for not coming to church , pro reformatione morum & salute animae . . where there are several modus alledged , there several prohibitions shall be granted ; but where divers are sued joyntly , and they alledge one modus only , there they shall have but one prohibition , by reeve and foster justices , the others being absent . pasch. º car in the kings bench. edwards and rogers case . . the case was thus : tenant for life , the reversion to an ideot ; an unkle heir apparent of the ideot levied a fine and died , tenant for life died , the ideot died : the only question was , whether the issue of the unkle who levied the fine should be barred or not : iones : that it should ; his chief reason was , because the son must make his conveyance by the father , and as to him he is barred . as in a writ of right , he ought of necessity to name his father , and that by way of title , so here . but crooke and barckley contrary ; and their reason was , because that here the issue of the unkle doth not claim in the right line , but in the collateral . secondly , because the naming of the father here is not by way of title , but by way of pedigree only . note , that serjeant rolls in the argument of the serjeants case ( which was the very point ) said , that this case was adjudged , according to the opinions of crooke and barckley , viz. that the fine should not bar the issue . the serjeants case aforesaid was trin. car. . payne the elder and payne the younger were bound joyntly and severally in an obligation to dennis , who afterwards brought debt upon the bond against both . and after appearance , dennis entred into a retraxit against payne the younger ; and whether this were a discharge of the elder also , was the question . and this term it was argued by maynard for the defendant , that it was a discharge of payne the elder also , for it doth amount to a release ; and it is clear , that a release to one , shall discharge both . rolls contrary , that it goeth only by way of estoppel , and not as a release , and therefore shall not bar . barckley justice : that it amounts to a release , and therefore shall discharge both . e. . hickmots case in the rep. the plaintiff shall not have judgment where he hath no cause of action . and here by his retraxit he hath confessed , that he hath no cause of action , and therefore he shall not have judgment . further , a retraxit is not an estoppel , but a bar of the action ; besides , here he hath altered the deed , and it is not joynt , as it was before , like as where he interlines it or the like , there the deed is altered by his own act , and therefore the other shall take advantage of it . crook justice contrary ; for it is not a release , but quasi a release ; and if the oblig●e sueth one , and covenanteth with him that he will not further sue him , the same is in the nature of a release , and yet the other shall not take advantage of it . so in this case , h. . there ought to be an actual release , of which the other shall take advantage , and therefore in this case , because it is but in the nature of an estoppel , the other shall not take advantage of it . sprigge against rawlenson . . in a writ of error to reverse a judgment given in the common pleas in an ejectione firme , the case was : r. brought an ejectione firme against s. and declared of an ejectment de uno mesuagio & uno repositorio . and the jury found for the plaintiff , and assess●d damages entire : upon which a writ of error was brought here , and the error which was largely debated was , that rep. sit●rium , which was here put for a ware-house , is a word uncertain , and of divers significations , as appeareth by the dictionary . and therefore an ejectione firme de uno repositorio is not good , and by consequence the damages which are joyntly assessed are ill assessed . and in an ejectione firme seism shall be given by the sheriff , upon a recovery , as in a precipe quod reddat , and therefore the ejectment ought to be of a thing certain , of which the sheriff may know how to deliver seifin , otherwise it is not good . barckley and crook justices were , that the judgment should be affirmed , and that it was certain enough ; but iones and bramston chief justice contrary , that it was utterly uncertain . for that is repositorium in which a man reposeth any thing : and an ejectione firme de uno tenemento is not good , because there are several ●enements . so here , because there are several repositories , and the sheriff cannot tradere possessionem : and afterwards barckley released his opinion , and judgment was given , that the judgment given in the common pleas should be reversed . trinit . º car ' in the common pleas. . a man having a legacie devised unto him out of a lease for years , which indenture o● lease was in the hands of a stranger , the legatee su●d the executors in the spiritual court to assent to the legacie . and evars serjeant prayed a prohibition , because they order that the lease should be brought into court , which they ought not to have done , being in the hands of a stranger . but the prohibition was denied by the whole court , for they may make an executor assent to a legacie out of a lease , and therefore may order that although that the lease be in the hand of a third person , that it shall be brought in to execute it . for the order , although it be general , binds only the defendant ; and it was agreed by the court , that assets or not assets is triable by them . juxon against andrewes , and others . . in an ejectione firme , the defendants pleaded not guilty , the jury found them not guilty for part , and guilty in tanto unius messuagii in occupatione , &c. quantum stat super ripam ; and whether this verdict were sufficiently certain , so as the court might give judgment upon it , and execution thereupon might be had , was the question . and by whitfield serjeant the verdict is certain enough : it hath been adjudged that where the jury find the defendant guilty of one acre , parcel of a mannor , that it was good : so of the moiety of a mannor which is as uncertain as in this case . and it is as certain as if they had said , so many feet in length , and so many in breadth ; for if the certainty appeareth upon the view of the sheriff , who is to deliver the possession , it sufficeth : and clark serjeant who was of the same side said , that it is a rule in law , quod certum est quod certum reddi potest , and this may be reduced to certainty upon the view of the sheriff , and therefore it is certain enough . besides , it is the finding of the jury who are lay gents . m. . iac. in the kings bench , an ejectione firme was brought for the gate-house of westminster , and the jury found the defendant guilty , for so much as is between such a room and such a room , and adjudged good , and here it is as uncertain as in our case . mich. iacobi . smalls case in hobarts rep. the jury in an ejectione firme found the defendant guilty of a third part , and good . mallet serjeant , that the verdict is uncertain , and therefore not good . and it is not sufficient that the certainty appear to the jury , for it behooveth that certa res deducatur in judicium . institut . . a. . e. . . b. e. . . e. . rep. playtors case . secondly , here is no certainty for the sheriff to give execution , for so much in length or in breadth , that is , quod stat super ripam , doth not appear . and thirdly , thereupon great inconvenience will arise , that no attaint will lie upon such uncertain verdict , so as the defendant shall be without remedy : and the whole court ( except justice crawley ) banks , reeve , and foster , did resolve that the verdict was insufficient for the incertainty ; and all agreed , that there is great difference betwixt trespass and ejectione firme , for such verdict in trespass may be good , for there damages are only to be recovered , but in an ejectione firme the thing it self . and their reason in this case was , that although the certainty may appear to the jury , yet that is not enough , for they ought to give judgment , & oportet quod certa res deducatur in judicium . and they agreed , that if they had found him guilty of a room , it had been good , and so the cases on the acre of land , and of the third part of a mannor is good , for those are sufficiently certain , for of them the law takes notice . the opinion of crawley , wherefore the verdict should be good , was , because the demand here was certain , although the jury found it in tanto , &c. and where there may be certain description for the jury it is good enough , and the rather because the verdict is the finding of lay gents : and he compared it to the case of the gate-house aforesaid : but he agreed , that if the writ of ejectione firme had been brought de tanto unius messuagii , &c. quod stat super ripam , that it would not have been good , but the verdict is good for the reason aforesaid . but justice reeve said , that that which is naught in the demand , is naught in the verdict , and therefore naught in the judgment , and therefore the court would not give judgment , and therefore a venire facias de novo was prayed , and granted by the court. . couch libelled against toll ex officio in the ecclesiastical court for incontinencie without a citation or presentment , and for that the defendant was excommunicated ; and gotbold prayed a prohibition , which was denied by crawley and reeve justices ( the others being absent ) and it was said by reeve , that where they proceed ox officio a citation is not needful , but put case it were , yet they said , that no prohibition is to be granted as this case is , because , that where the ecclesiastical court hath jurisdiction , although they proceed erroneously , yet no prohibition lieth , but the remedy is by way of appeal , and there he shall recover good costs : and it was said by crawley , that if the party be retorned cited , and he is not cited , that an action upon the case lieth . . a woman libelled in the arches against another for calling of her iade , and a prohibition was prayed and granted , because the words were not defamatory , and do not appertain unto them . and reeve said , that for whore or bawd no prohibition would lie , but they doubted of quean . . bacon serjeant prayed a prohibition to the court of requests upon this suggestion , that one executor sued another to accompt there , and an executor at the common law before the statute of west . . cap. . could not have an accompt for cause of privity , and now by that statute they may have an accompt , but the same ought to be by writ , and therefore no accompt lieth in the court of requests . secondly , they have given damages where no damages ought to be given in an accompt . and lastly , they have sequestred other lands , which is against the law ; and for these reasons he prayed a prohibition . whitfield serjeant contrary . . it is clear that an accompt by bill lieth for an attorney in this court , and so in the kings bench and exchequer : and as to damages it is clear that in an accompt a man shall recov●● damages upon the second judgment , but as to the sequest●●ion he could not say any thing , but further he said , that it was not an accompt but only a bill of discovery against trustees , who went about to defeat an infant , and upon the reading of the bill in court it appeared that the suit was meerly for the breach of a trust , and for a confederacie and combination , which is meerly equitable . wherefore a prohibition was denied because it was no accompt , but as to the decree for sequestring other lands , the prohibition was granted . trin. º car ' in the kings bench. . easte brought an action upon the case upon an assumpsit against farmer , because that where the plaintiff had sold to the defendant so much wood , the defendant in consideration thereof did assume and promise to pay so much money to the plaintiff , and to car●● away the wood before such a day ; the defendant pleaded th● he paid the money at the day aforesaid , but as to the carrying of it away before the day , he pleaded non assumpsit , and the jury found that he did not pay the money at the day , but as to the other they found that he did assume and promise as aforesaid , and it was moved in arrest of judgment , that the finding of the jury was naught , for being but one assumpsit and the same being an intire thing , it could not be apportioned , and therefore they ought to find the intire assumpsit for the plaintiff , or all against him . and the court agreed all that , and awarded , that there should be a repleader ; and the chief justice bramston said , that for the reason given before the defendants plea was not good , and therefore the plaintiff might have demurred upon it , which he hath not done ; and therefore they agreed , that the verdict was naught for the reason aforesaid . . williams was indicted at bristow , upon the statute of iac. cap. . for having two wives , and upon not guilty , pleaded , the jury found a special verdict , which was thus : that the said williamt married one wi●e , and was afterwards divorced from her causa adulterii , and afterwards married the other , and if that were within the proviso of that statute which provides for those who are divorced , was the question . and it was resolved without argument by bramston chief justice , and heath justice ( the other being absent ) that it is within the proviso , for the statute speaks generally of divorce , and it is a penal law : and heath said , that by the law of holy church the parties divorced causa adulterii might marry , but parsrea not without licence , and he cited the case of anne porter of late in the kings bench , who was divorced causa saevitiae , and afterwards married one rootes , and upon an indictment upon this statute it was doubted and debated whether it were within the proviso of this statute or not ? but resolved it was not , because only a divorce à cohabitatione , and a temporal separation until the anger past , but the divorce here is à vinculo matrimonii . . one was chosen to be clerk of a parish-church , and was put in and continued clerk three or four years , but was never sworn ; and now a new parson put him out , and swore another in his place . keeling and rolls serjeant prayed a writ of restitution , and compared the same to the case of disfranchisement , where restitution lieth . but bramston and heath justices ( the other absent ) would not grant it . and the chief justice said , that the doctor had not power to oust him ; for he said that it is a temporal office , with which the parson had not to do : and further , they conceived that the clerk hath remedy at law , wherefore they would not award a writ of restitution , but they said , that if the clerk was never sworn they would award a mandat to swear him , to which the counsel assented . trin. º car. in the common pleas. . white exhibited a bill in the court of request against grubbe for money due upon account ; upon which mallet moved for a prohibition , because it 's no other than in the nature of a debt upon account , of which a court of equity hath no jurisdiction , for by such means the king should lose his fine , the defendant should be put to another answer upon his oath , and which is above all , they would refer the merits of the cause to others , and according to their certificates make a decree , so that by this means they would create courts of equity without number . serjeant clark contrary against the prohibition , for he said the defendant had exhibited a cross bill , and so had affirmed the jurisdiction , and he ought to have demurred to the jurisdiction ; and he said that where parties assent to a decree , there the kings bench will not grant a prohibition . for he said , that by the same reason that a man may chuse arbitrators , he may elect his judges ; and further , he said that the suit was for moneys due for divers things delivered by the plaintiff being a chandler in a country-town , which he ought to prove to be delivered , and he had no proof : but crawley and reeve justices , the others being absent , granted a prohibition , because it is no other but an action of debt upon account ; and crawley said , that the particulars are out of doors by the account , & in debt brought , it is sufficient to say , that the defendant was indebted to him for divers commodities . and they accounted , and upon the account the defendant was found to be in debt to him such a sum , &c. and note , it was said in the bill that the plaintiff had no witnesses to prove the delivery of the things aforesaid , and notwithstanding they granted a prohibition . for they said , there is no remedy in the court of requests if you have no proof . but is was said that the defendant in the court of requests had confessed the delivery of the things in his answer there . for which cause the judges said , that this confession there might be given in evidence against him at law. . three covena●●ed joyntly and severally with two severally , and afterwards one of the covenanters married with one of the covenantees : by serjeant mallet the covenant is gone ; besides , a man cannot covenant with two severally , as a man cannot bind himself to two severally . further , they joyned in in action where the covenant is several , that which they should not do . crawley and reeve justices did conceive that a man might covenant with two severally , because that it differs from the case of a bond , for a covenant sounds only in damages , but they conceived clearly that they ought not to joyn in action , and it was adjourned . . it was said in a case at the bar by sergeant godbold that it was a rule in the kings bench , that although an atturney be dead , yet the warrant of atturney might be siled , which was not denied by the court here . lawson and cookes case . . in a second deliverance , which was entred hill. car. rot. : the case was thus : a man had a rent-charge in fee , and for arrerages thereof , did distrain , & then granted the same over . and the question here was , whether he ought to avow or justifie ; and the doubt rested upon this , viz. whether the arrerages be gone by the grant of the rent , notwithstanding the distress before taken , or not . by serjeant ca●lis the arrerages are lost , for without question he cannot have debt . and he cannot avow , for that depends upon the inheritance which is gone by the grant , rep. . ognels case , & h. . . b. acc. and here he hath avowed and not justified , as ●e ought for to excuse himself of damages , and therefore it is naught . but he took this difference betwixt the act of god , and the act of the party , as here it is ; where it is by the act of god , as where there is grantee for anothers life of ●●ent , and cestuy qui vie dieth , or where a man hath rent 〈◊〉 the right of his wife and she dieth , in those cases the arresages shall not be lost : but where a man grants over the rent as in our case which is his own act , there the arrerages are lost . institut . . a man intitled to waste accepts of a surrender , it destroys his action , otherwise where it is by act of law. so if a man bring debt for twenty pounds , and afterwards accepts ten pounds , that shall abate the writ , because that it is his own act ; and this difference may be collected out of the book of h. . besides , until avowry it doth not appear upon record for what the distress is taken , whether for rent , or for damage feasant . serjeant godbold contrary , that he ought to avow , because the rent in this case is not gone ; and he said , there was a difference between this case and ognells case , for there was no distress taken before the rent granted , as here is ; and there the privity is gone , and the distress follows the rent , but here we have a pledge for the rent which is the distress , and return of the cattle if it be found for us , h. . . a. where the distress was lawfully taken at the beginning , there we may avow , and it is good to intitle us to a retorn , e. . . where there is a duty at the time of the distress , there he shall always avow and not justifie , and at least it turns the avowry into a justification in our case , so as you shall not make us trespassers , but that we may well justifie to save our damages . crawley justice : that the avowry is turned into a justification , and that there is sufficient substance in the plea to answer the unjust taking the distress . justice reeve : that it is good by way of avowry , for the distress being lawfully taken at the time , it shall not take away his avwry , & therefore he shall have retorn , for that was as a gage for the rent , and therefore differs from the other cases . justice foster put this case at the common law : distress was taken , and before avowry tenant for life died , whether he shall avow or justifie . but all agreed , that at the least the avowry is turned into a justification , but it was adjourned . . the court demanded of the protonotharies , whether a man might make a new assignment to a special bar ; and they said no , but to a common bar only , viz. that the trespass ( if any were ) was in bl. acre , there ought to be a new assignment by the plaintiff : but reeve and crawley justices ( the other being absent ) held clearly , that the plaintiff might make a new assignment to a special bar ; and further they said , that the plaintiff if he would might trise the desendant upon his plea , but we will not suffer him to do so , because that his plea is meerly to make the plaintiff to shew the place certain in his replication in which the trespass was done . . the disseisee levieth a fine ; by reeve and crawley , justices , it shall not give right to the disseisor , because that this fine shall enure only by way of estoppel , and estoppels bind only privies to them and not a stranger , and therefore the disseisor here shall not take benefit of it , and therefore they did conceive the rep. . a. to be no law , vid. rep. . a & rep. . a. . serjeant callis prayed a prohibition to the court of requests for cause of priority of suit , but by foster and crawley justices ( the other being absent ) priority of suit was nothing , the bill being exhibited there before judgment given in this court. . the case of white and grubbe before being moved again , it was said in this case by reeve and foster justices , that where a man is indebted unto another for divers wares , and the debt is superannuated according to the statute of iac. cap. . and afterwards they account together , and the party found to be indebted unto the other party , in so much mony for such wares , in that case although that the party were without remedy before , yet now he may have debt upon accompt , because that now he is not bound to shew the particulars , but it is sufficient to say , that the defendant was indebted to the plaintiff upon accompt , pro diversis mercimoniis , &c. . a prohibition was prayed unto the council of the marches of wales , and the case was thus : a man being posfessed of certain goods , devised them by his will unto his wife for her life , and after her decease to i. s. and died . i. s. in the life of the wife did commence suit in the court of equity , there to secure his interest in remainder , and thereupon this prohibition was prayed . and the justices , viz. banks chief justice , crawley , foster ( reeve being absent ) upon consideration of the point before them , did grant a prohibition , and the reason was because the devise in the remainder of goods was void , and therefore no remedy in equity , for aequitas sequitu● legem . and the chief justice took the difference , as is in h. . . br. devise . and com. welkden & elkingtons case , betwixt the devise of the use and occupation of goods , and the devise of goods themselves . for where the goods themselves are devised , there can be no remainder over ; otherwise , where the use or occupation only is devised . it is true that heir looms shall descend , but that is by custome and continuance of them , and also it is true that the devise of the use and occupation of land is a devise of the land it self , but not so in case of goods , for one may have the occupation of the goods , and another the interest , and so it is where a man pawns goods and the like : for which cause the court all agreed that a prohibition should be awarded . trin. º car. in the kings bench. . a man was sued in london according to the custom there , for calling a woman whore , upon which a habeas corpus was brought in this court ; and notwithstanding oxfords case in the rep. . a. which is against it , a procedendo was granted : and it was said by serjeant pheasant who was for the procedendo , and so agreed by bramston chief justice and justice malle● , that of late times there have been many procedendo's granted in the like case in this court. . an orphan of london did exhibite a bill in the court of requests against another for discovery of part of his estate . and serjeant pheasant of counsel with the defendant came into this court and prayed a prohibition , upon the custom of london , that orphans ought to sue in the court of orphans in london : but the whole court which were then present , viz. chief justice bramston , heath and mallet justices were against it , because that although the orphan had the priviledge to sue there , yet if he conceive it more secure and better for him to sue in the court of requests , then he may waive his priviledge of suing in the court of orphans , and sue in the court of requests ; for quilibet potest renunciare juri pro se intraducto , &c. and heath said , that he always conceived the law against the case of orphans , rep. . b. but which is stronger in this case , the court of orphans did consent to the suit in the court of requests ; and therefore there is no reason that the defendant should compel the infant to sue there , wherefore they would not grant a prohibition , but gave day until mich. term to the defendants counsel to speak further to the matter if they could . trin. º car. in the common pleas. dewel against mason . . in an action upon the case upon an award , the case was this : the award was that the defendant should pay to the plaintiff eight pound , or three pound and costs of suit in an action of trespass betwixt the plaintiff and defendant , as appears by a note under the plaintiffs attorneys hand , ad libitum defendentis , &c. and the plaintiff doth not aver that a note was delivered by the attorney of the plaintiff to the defendant ; and the defendant pleaded non assumpsit , and it was found for the plaintiff , and it was moved in arrest of judgment for the reason given before : rolls contrary , that there needs no averment , and he said it was wilmots case adjudged in this court , hill. car. where the case was , that the defendant should pay to the plaintiff such costs as shall be delivered by note of the attorneys hand : and it was here adjudged that there needs no averment , because it was to be done by a stranger , but otherwise it had been , if it had been to be done by the plaintiff himself : and by the justices , the only question here is , whether the attorney shall be taken for a stranger or not ? justice foster : that the defendant ought first to make his election ; which is , to pay either the eight pound which is certain , or the costs which shall be delivered by a note of the attorney . besides , here the attorney is a stranger , because the suit is ended , and to the defendant he is totally a stranger , and therefore he ought to seek him to have the note delivered to him . but notwithstanding he did conceive that as this case is , judgment ought to be stayed , because the plaintiff hath not well entitled himself to the action , because he hath not averred that there were costs expended in such a suit : and in the case ci●ed by rolls , the plaintiff did aver the costs incertain . justice crawley : it is without question , the defendant hath election in this case ▪ but as this case is , he ought to have notice : and if the case had been such , that the plaintiff himself had been to have delivered the note , then without question there ought to be notice , and here the attorney is no stranger , but is a servant to the plaintiff , as every attorney is , and i conceive , that if the case had been that the plaintiffs servant had been to deliver such a note , that there notice ought to be given : and for want thereof , in this case i conceive that the judgment ought to be stayed . bankes chief justice : i doubt upon the different opinions of my brethren , whether judgment ought to be stayed or not . i agree that the defendant hath election in this case ; and further , i agree that where a thing is to be done by the plaintiff or d●fendant himself , there notice ought to be given ; but otherwise , in case of a stranger , and upon this difference stands our books : as h. . and all our books : but the question here is , whether the attorney be a stranger or not ? and i conceive that it is not in the power of the plaintiff to compel him to bring the note , and is all one as a stranger , and therefore the defendant ought to seek the attorney to deliver this unto him : but the case was adjourned , because justice reeve was not present in court. . a. said to b. thou hast killed my brother : for which b. ought an action upon the case ; and by serjeant whitfield it will not lie , because it is not averred that the brother of the defendant was dead at the time , and if he were not dead , then it is no slander , because the plaintiff is not in danger for it , rep. . a. snaggs case , a●● . serjeant evers contrary , because the words imply that he is dead , and besides , in the ( innuendo ) it is also shewed that he was ●ead , for that is the innuendo c. &c. fratrem nuper mortuum : but by the whole court the words are not actionable without averment that he was dead , and the innuendo doth not help it , hobarts rep. p. . miles and iacobs case , acc . . a frenchman had his ship taken by a dunkirk upon the sea , and before that it was brought infra praesidia of the king of spain , it was driven by a contrary wind to waymouth ; and there the dunkirk sold the ship and goods to a lord in waymouth : whereupon the frenchman having notice of his ship and goods to be there , libelled in the admiralty pro interesse suo , against the lord the vendee of the ship , shewing that it was taken by piracie and not by letters of mart , as was pretended , and thereupon a prohibition was prayed , and by foster a prohibition ought to be granted , for whether the dunkirk took it by letters of mart or as a pirate , it is not material , the sale being upon the land and infra corpus comitatus ; and so he said it was adjudged in such a case , for whether the sale were good or not , non constat . justice crawley conceived it should be hard that the sale being void , if it were taken as a pirate , or by letters of mart , not being brought infra pr●sidia of the king of spain , that by this means you should take away the jurisdiction of the admiralty , but he said he did conceive it more fit for the frenchman to have brought a replevin , which he said lieth of a ship , or trover and conversion , and so have had the matter found specially . bankes chief justice conceived that there should be a prohibition , otherwise upon such pretence that it was not lawful prize , and by consequence the sale void , you would utterly take away the jurisdiction of the common law. but because there was some misdemeanor in the vendee , the court would not award a prohibition , but awarded that the buyer should have convenient time given him by the court of admiralty to find out the seller to maintain his title , and in the mean time that he give good caution in the admiralty , that if it be found against him , that then he restore the ship with damages . but note , the court did agree ( justice reeve only absent ) that if a ship be taken by piracie , or if by letters of mart , and be not brought infra praesidia of that king by whose subject it was taken , that it is no lawful prize , and the property not altered , and therefore the sale void ; and that was said by the pr●cto● of the frenchman to be the law of the admiralty . rudston and yates case . . rvdston brought an action of debt upon an obligation against yates for not performance of an award according to the condition of the bond : the defendant pleaded that the arbitrators non fecerunt arbitrium , upon which they were at issue , and found for the plaintiff ; and it was now moved in arrest of judgment by trevor , that the defendant was an infant , and therefore that the submission was void , and by consequence the bond which did depend upon it : and he conceived the submission void , first , because it is a contract , and an infant cannot contract : and he took a difference betwixt acts done which are ex provisione legis , and acts done ex provisione of the infant ; an infant may bind himself for his diet , schooling and necessary apparel , for that is the provision of the law for his maintenance ; but a bond for other matters , or contracts of other nature which are of his own provision , those he cannot do . secondly , an arbitrator is a judge ; and if an infant should be permitted to make an arbitrator , he should make a judge , who by the law is not permitted to make an attorny , which were against reason . thirdly , it is against the nature of a contract , which must be reciprocally binding ; here the infant should not be bound , and the man of full age should be , which should be a great mischief . and where it is objected , it may be for his benefit : to that he answered , that the law will not leave that to him to judge what shall be for his benefit , what not : and to this purpose amongst other he cited it to be adjudged , that where an infant took a shop for his trading , rendring ren● , and in debt brought for the rent the infant pleaded his infancie , the other replied that it was for his benefit and liv●lihood , and yet it was adjudged for the infant . vid. h. . . & h. . . books in the point , and therefore he prayed that judgment might be stayed . bramston , heath and mallet justices , ( barckley being then impeached for high treason by the parliament ) were clear of opinion , that the submission by an infant was void ; and they all agreed , that if the infant was not bound , that the man of full age should not be bound ; so that it should be either totally good , or totally void . but ward who was of counsel with the plaintiff said , that the case was not that the infant submitted himself to the award , but that a man of full age bound himself , that the infant should perform the award , which was said by the court quite to alter the case . to that trevor said , that the case is all one ; for there cannot be an award if there be not first ▪ submission : and then the submission being void , the award will be void , and so by consequence the bond : and to prove it , he cited rep. . b. where it was adjudged that the non-performance of a void award did not forfeit the bon● and many other cases to that purpose . and the court agreed that if the condition of a bond recite , that where an infa●● hath submitted himself to an award , that the defendant doth bind himself that the infant shall perform it , that the sam● makes the bond void , because the submission being void , all● void , and therefore day was given to view the record . . a. and b. are indicted for murder : b. flies , and a. brings a certiorare to remove the indictment into the king● bench ; whether the whole record be removed , or but part● keeling the younger said , that all is removed , and that the● cannot be a transcript in this case , because he said the writ saith , recordum & processus cum omnibus ea tangentibus : but the chief justice doubted of it , and he said that the opinion of markham in one of our books is against it ; and he said it should be a mischievous case if it should be so , for so the other might be attainted here by outlawry who knew not of it ; and note , that bramston chief justice said , that the clerk of the assises might bring in the indictment propriis manibus if he would without a certiorare . . a man was outlawed for murder , and died : his administrator brought a writ of error to reverse the outlawry , and it was prayed that he might appear by atturney , and by bramston chief justice and justice mallet ( none other being then in court ) it was granted that he might , for they said that the reason wherefore the party himself was bound to appear in proper person is , that he may stand rectus in curia , and that he may answer to the matter in fact ; which reason fails in this case , and therefore the administrator may appear by attorney . . one said of mr. hawes these words , viz. my cozen hawes hath spoken against the book of common prayer ; and said it is not fit to be read in the church : upon which hawes brought an action upon the case , and shewed how that he was cited into the ecclesiastical court by the defendant , and had paid several sums , &c. the defendant denied the speaking of these words : upon which they were at issue , and it was found for the plaintiff ; and now it was moved by keeling for stay of judgment , that the words are not actionable ; as to say , a man hath spoken against a penal law , which doth not inflict punishment of life and member , will not bear action ; and the punishment which is inflicted by the statute of eliz. cap. . is pecuniary only and not corporal ; but in default of payment of the sum , that he shall be imprisoned for such a time , which meerly depends upon the non-payment , and is incertain : and by the same reason he said , to say of a man , that he hath not bowe and arrows in his house , or not a gun : or to say of a man , that he hath spoken against any penal law whatsoever , would bear action , which should be unreasonable : wherefore he prayed that judgment might be stayed . brown contrary ; the words are actionable , because that if it was true that he spoke them , he subjected himself to imprisonment by the statute of eliz. although not directly , yet in default of payment ; so as there might be corporal damage : and to prove it , he cited anne davies case rep. . a. where it is said , that to say that a woman hath a bastard will bear action , because that if it were true , she was punishable by the statute of eliz. further , he said , that if the words are not actionable , yet the action will lie for the special damage , which the plaintiff hath suffered in the ecclesiastical court. justice mallet : the words of themselves are not actionable , because that the corporal punishment given by the statute doth depend upon the non-payment , and is not absolute of it self ; but the action will lie for the temporal damage , and therefore he conceived that the plaintiff ought to have judgment . justice heath : that the plaintiff ought to have judgment for the pecuniary mulct is a good cause of action , there being in default of payment , a corporal punishment given . but here is not only injuria , but damnum also ; which are the foundations of the action upon the case : and if the words of themselves be not actionable , yet the action will lie for the damage that the plaintiff here suffered by the citation in the spiritual court. bramston chief justice doubted it , and he conceived it hard that the words should bear action , because as he said the corporal punishment doth meerly depend upon the not payment : and upon the same reason , words upon every penal law should bear action ; and therefore this being a leading case , he took time to consider of it . it was said , to say of a man , that he had received a romish priest , was adjudged actionable , and that was agreed , because it is felony . at another day the case was moved again , and justice mallet was of the same opinion as before , viz. that the words themselves were not actionable , but for the special damage that the action would lie ; and he said , that one said of another , that he was a recusant ; for which an action was brought in the common pleas , and he conceived the action would not lie . justice heath was of the same opinion as before , that the words o● themselves would bear actio● and ●e conceived , that if a man speak such words of another , that if they were true , would make him liable to a pecuniary , or corporal punishment , that they would bear an action , and here the plaintiff was endamaged , and therefore without question they will bear an action . bramston chief justice , as before also ; that the words are not actionable , neither of themselves , nor for the damage ; not of themselves , for no words which subject a man to a pecuniary mulct if they were true , either at the common law , or by the statute , will bear an action : for by the same reason , to say that a man hath erected a cottage , or to say that a man hath committed a riot , would bear action , eliz. in the common pleas. one said of another , that he did assault me , and took away my purse from me ▪ and upon not guilty pleaded , it was found for the plaintiff , and judgment was stayed , because he might take his purse from him , and yet be but a trespasser : so as it appeareth that words ought to have a favourable construction , to avoid multiplicity of suits : and if these words would bear an action , by the same reason words spoken against every penal law should bear action , which against the reason given before should be a means to increase suits . and he took it for a rule , if the words import scandal of themselves , by which damage may accrue , then the words will bear action without damage , otherwise not , and therefore the damage here shall not make the words actionable which of themselves are not actionable , as i conceive they are not . besides , by this means the act of a third person should prejudice me , which is against reason , as here the act of the ordinary by the citation and damage thereupon accrued , which perhaps might be ex officio only , for which cause he conceived that judgment should be stayed , but because there were two judges against one , judgment was given for the plaintiff . mich. º of the king , in the common pleas. . baine brought an action upon the case against — for these words , viz. that he kept a false bushel , by which he did cheat and cosen the poor ; & he said in his declaration , that he was a farmor of certain lands , and used to sow those lands , and to sell the corn growing on them , and thereby per majorem partem used to maintain himself and his family ▪ and that those words were spoken to certain persons who used to buy of him , and that by reason of those words , that he had lost their custom ; the parties were at issue upon the words , and found for the plaintiff , and it was moved by serjeant gotbold in arrest of judgment , that the words were not actionable , because that the plaintiff doth not alledge that he kept the false bushel , knowing the same to be a false bushel , for if he did not know it to be a false bushel , he was not punishable , and by consequence no action will lie ; and compared it to the case , where a man keeps a dog that useth to worry sheep , but he doth not know of it , no action lieth against him for it : but yet notwithstanding , bankes chief justice and crawley were of opinion , that the words were actionable , for of necessity it ought to be taken that he kept the bushel knowingly , for otherwise it is no cousenage ; and here being special damage alledged , which was the loss of his custom , as he had pleaded it , the maintenance of his livelihood , they hold the words clearly actionable , & gave judgment accordingly . note , the other judges were in parliament . . doctor brownlow brought an action upon the case for words against 〈◊〉 spoken of him as a physitian , which words were agreed to be actionable , but yet serjeant gotbold conceived that although that the words were actionable , that the plaintiff had not well intitled himself to his action , because although that he said that he is in medicinis doctor , yet because he doth not shew that he was licens●d by the colledge of physitians in london , or that he was a gr●d●ate of the universities according to the statute of . h. . cap. . that therefore the action will not lie , see doctor b●unchams case rep. . ● . where he shewed the statute a●or●said , and pleaded it accordingly , that he was a graduate of the university of cambridge , wherefore he prayed that judgment might be stayed . bankes chief justice and crawley doubted whether the act were a general act or not ; for if it were a particular act , he ought to have pleaded it ; otherwise that they could not take notice of it ; but upon reading of the statute in court , they agreed that it was a general act , wherefore they gave day to the party to maintain his plea. . by bankes chief justice : upon an elegit there needs no liberate , otherwise upon a statute : and note , the elegit doth except averia corucae . dye and olives case . . in an action of false imprisonment , the defendant shewed , that london hath a court of record by prescription , and that the same was confirmed by act of parliament , and that he was one of the serjeants of the mace of that court , and that he had a warrant directed unto him out of that court to arrest the plaintiff pro quodam contemptu committed to the court for not paying twenty shillings to k. b. and that in pursuance of the command of the court , he accordingly did arrest the plaintiff . maynard : that the justification was not good , because the defendant doth not shew what the contempt was , nor in what action , so as it might appear to the court whether they had jurisdiction or not : and if such general plea should be tolerated , every court would usurp jurisdiction , and every officer would justifie , where the proceeding is c●ram non iudice and void , and thereby the o●●icer liable to false imprisonment , according to the case of the marshal●ee in the rep. and here the pleading is incertain , that the jury cannot try it : and he put the case of the mayo● of plymouth . the mayor hath juris●iction in d●bt , and trespass is brought there , which is coram non iudice . but in this action the par●y is imprisoned pro quodam contemptu , shall this be a good justification in a false imprisonment brought against the officer ? certainly no. serjeant rolls contrary , that the plea was good , because that the defendant hath shewed that the court was holden secundum consuetudinem , and therefore it shall be intended that the contempt● was committed in a case within their jurisdiction ; and therefore he cited the rep. turners case , to which maynard replied , that that doth not make it good , because that issue cannot be taken upon it . at another day , the judges gave their opinions ; justice mallet : that the plea is not good , because that it is too general , and non constat whether within their jurisdiction or not : and where it was objected that he is a minister of the court , and ought to obey their commands , and therefore it should go hard that he should be punished for it , he conceived that there is a difference betwixt an officer of an inferiour court which ousts the common law of jurisdiction , and one of the four courts at westminster ; for where an officer justifies an act done by the command of an inferiour court , he ought to shew precisely that it was in a case within their jurisdiction ; and he cited h. . the abbot of st. alb●rs case . justice heath contrary ; the party is servant to the court , and if he have done his duty , it should be hard that he should be punished for it : and he agreed that there is a difference betwixt the act of a constable and a justice of peace , and the act of a servant of a court , for the servant ought to obey his master ; and although it be an inferiour court , yet it is a court of record , and confirmed by act of parliament and all that is confessed by the demurrer . bramston chief justice : that the plea is naught , because that it is too general and incertain ; true it is , that it is hard that the officer should be punished in this case for his obedience to which he is bound , and it is as true that the officer for doing of an act by the command of the court , whether it be just or unjust , is excused , if it appear that the court hath jurisdiction : but here it doth not appear that the court hath jurisdiction ; and if the court had not jurisdiction , then it is clear that the officer by obeying the court when they have not jurisdiction , doth subject himself to an action of false imprisonment , as it is in the case of the marshalsy in the rep. but it was adjorned , &c. the bishop of hereford and okeleys case . . the bishop of hereford brought a writ of error against okeley , to reverse a judgment given in the common pleas : the point was briefly this . one under the age of twenty three years is presented to a benefice , whether the patron in this case shall have notice , or that lapse otherwise shall not incur to the bishop , which is grounded upon the statute of eliz. cap. . and upon debate by the counsel of the plaintiff in the writ of error , that which was said being upon the general law of notice , nothing moved the court against the judgment given in the common pleas upon solemn debate , as it was said , and therefore they gave day to shew better matter , or else that judgment should be affirmed . the reasons of the judgment in the common pleas were two . first , upon the proviso of the statute , which says , that no lapse shall incur upon any deprivation ips● facto without notice . second reason was upon the body of the act ; which is , that admission , institution , and induction shall be void , but speaks nothing of presentation ; so as the presentation remaining in force , the patron ought to have notice , and that was said was the principal reason upon which the judgment was given : and upon the same reasons the court here , viz. mallet , heath , and bramston ▪ justices , held clearly that the notice ought to be given , or otherwise that lapse shall not incur : but they agreed that if the act had avoided the presentation also , that in such case the patron ought to have taken notice at his peril , being an avoydance by statute , if the proviso help it not . mich. º of the king , in the common pleas. . a. said of b. that he kept false weights ; for which words b. brought an action upon the case , & shewed how that he got his living by buying and selling , but did not shew of what profession he was ; and by all the court , viz. foster , reeve , crawley , and bankes in the common pleas , the action will not lie . first , because he doth not shew of what trade or profession he was ; and it is too general to say that he got his living by buying and selling . secondly , because although that he had shewed of what trade he was , as that he was a mercer , as in truth he was , that yet the words are not actionable , because there is nothing shewed to be done with them , or that he used them : and it can be no scandal , if the words do not import an act done by the false weights , for he may keep them and yet not use them ; and he may keep them that another do not use them ; and the keeping of false weights is presentable in leet , if the party use them , otherwise not . and where one said of another , that he kept a false bushel , by which he did cheat and cousen the poor ; the same was adjudged actionable , that is , true ; and differs from this case , for there he said , he not only kept them , but used them , and cheated with them ; but it is otherwise in our case : and this case was compared to hobarts reports , where one said of another , that he kept men which did rob upon the high-way : and adjudged that the words were not actionable , for he might keep them and not know of it . bankes : the action upon the case for words is to recover damages : and here it can be no damage . first , because he doth not shew of what profession he was : and secondly , because although he had shewed it , yet the words will not bear action : and judgment was given against the plaintiff . . it was moved by serjeant wild , that depositions taken in the ecclesiastical court might be given in evidence in a trial in this court ; and the court was against it , because they were not taken in a court of record ; and they said , although the parties were dead , yet they ought not to be allowed ; and by bankes chief justice , no depositions ought to be allowed which are not taken in a court of record . and foster and reeve were of opinion , that although the parties would assent to it , yet they ought not to be given in evidence against the constant rule in such case . crawley contrary , for he said , that a writing which by the law is not evidence , might be admitted as evidence by the consent of the parties . . a man was bound to keep a parish harmless from a bastard-child , and for not performance thereof , the obligee brought debt upon the bond : the defendant pleaded that he had saved the parish harmless , and did not shew how the plaintiff replied , and shewed how that the parish was warned before the justices of peace at the sessions of peace , and was there ordered by record to pay so much for the keeping of the childe ; and because the defendant had not saved him harmless , &c. the defendant pleaded , nul tiel record , upon which the plaintiff did demur . and here two things were resolved : first , that the plea nul tiel record upon an order at sessions of peace is a good plea , because that an order at the sessions of peace is a record . secondly , that notwithstanding judgment ought to be given for the plaintiff , because the d●fendants bar was not good , in that he hath pleaded in the affirmative that he hath saved the parish harmless , and doth not shew how as he ought to have done : but he ought to have pleaded non damnificatus , and that had been good without any further shewing , which he hath not done , and therefore the plea was not good ; and it was agreed that the same was not helped by the demurrer , because the same was matter of substance , but the plaintiff might take advantage of it notwithstanding , and therefore judgment was given for the plaintiff . . in debt judgment was given against the principal , whereupon a scire facias issued forth against the bail , and judgment upon nihil dicit was given against them : whereupon a writ of error was brought , and error assigned , that there was no warrant of attorny filed for the plaintiff ; and upon debate whether the warrant of attorny ought to be filed or on , the court seemed to incline their opinion upon these differences , but gave not any judgment . first , where it may appear to the court , that there was a warrant of attorny , and where not . if there was not any warrant of attorny , there they cannot order the making of one ; but if there was one , they conceived that they might order the filing of it . second difference , where the warrant wanting , were of the part of the defendant , and where of the part of the plaintiff , in the writ of error : if it be of the part of the plaintiff , such a warrant of attorney shall not be filed , because he shall not take advantage of his own wrong : the last thing was , where the record by the lachess of the plaintiff in the writ of error is not certified in due time , there the warrant of attorny shall be filed : and the books cited to warrant these differences were , h. . . h. . . eliz. dyer . eliz dyer . & phil. & mar. dyer . eliz. dyer . eliz. dyer . and . el. dyer . note , that it was said by crawley , that it is all one whe●e there is no warrant of attorney , and where there is ; and he said , there are many presidents accordingly , and that the same is holpen by the statute of h. . cap. , . but bankes chief justice contrary , that it is not helped by the statute of h. . and so it is resolved in the rep. . and he caused the pro●onotharies so search presidents , but yet he said they should not sway him against the printed law , because they might pass sub silentio . and the chief justice observed also , that the same is not holpen by the statute of eliz. for that helps the want of warrant of attorny after verdict only , and not upon nihil dicit , as this case is , or upon wager of law , or upon confession , or non sum informatus : and the court said , that it shall be a mischievous case , that attornies should be suffered to file their warrants of attorny when they pleased ; and therefore they gave warning , that none should be filed after the term , and willed that the statute of eliz. cap. . should be put in execution . mich. º car. in the kings bench. . acertiorare was directed to the commissioners of sewers , who according to the writ made a certificate , to which certificate divers exceptions were taken by saint-iohn the kings sollicitor . first , that it appeareth not by the certificate , that the commission was under the great seal of england , as it ought to be by the statute of h. . cap. . secondly , the certificate doth not express the names of the jurors , nor shew that there were twelve sworn , who made the pr●sentment , as by the law it ought to be , but only quod praesentatum fuit per iurator ' ; so that there might be but two or three . thirdly , it appears by the certificate , that it was presented by the jury , that the plaintiff ought to repair such a wall , but it is not shewed for what cause ; either by reason of his land , prescription or otherwise . fourthly , they present that there wants reparation , but doth not shew that it lies within the level and commission . fifthly , there was an assesment without a presentment , contrary to the statute , for it is presented that such a wall wanted reparation , and the commissioners assessed the plaintiff for reparation of that wall and another , for which there was no presentment . sixthly , the tax was laid upon the person , whereas by the statute it ought to be laid upon the la●d seventhly , there was no not●ce given to the plaintiff , which as he conceived ought to have been , by reason of the great penalty which fol●ows for non-payment of the assesment : for by the statute the land ought to be sold for want of payment . these were the principal exceptions taken by the sollicitor . lane th● princes attorney took other exceptions . first , because they assess the plaintiff upon information ; for they said that they w●re credibly informed , that such a wall wanted reparation , and that the plaintiff ought for to repair it ; whereas they ought to have done it upon presentment , and not upon information , or their private knowledge . secondly , that they assessed the plaintiff , and for not payment sold the distress , which by the law they ought not to do , for that enables them only to distrein ; and it was intended by the statute , that a replevin might be brought in the case for it gives avow●y or justification of a distress taken by reason of the commission of sewers , and there ought to be a replevin , otherwise no avowty ; and if sale of the distress should be suffered , then that priviledge given by the parliament should be taken away , which is not reasonable : keeling of the same side , and he said , that it was adjudged , pasch. car in this court in hungers case , that the certificate of the commissioners was insufficient , because that it was not shewed that the commission was under the great s●al of england , as by the statute it ought to be : and the judges then in court , viz. mallet , heath and bramston , strongly inclined to many of the exceptions , but chiefly to that , that there wanted virtute literarum paten . but day was given to hear counsel of the other side . . a man acknowledgeth a statute , and afterwards grants a rent-charge , the statute is afterwards satisfied , whether the grantee of the rent may distrein without suing a scire facias was the question , which was twice or thrice debated at the bar ; but because it was before that mallet the puisne judge was judge , the court gave order that it should be argued again . thornedike against turpington in the common pleas. . in debt upon a bond , the defendant demanded oyer of the condition , and had it , which was , that the defendant should pay so much in a house of the plaintiffs at lincoln . the defendant pleaded payment at lincoln aforesaid , upon which they were at issue , and the venire facias was de vicines civitatis lincoln , and found for the plaintiff . and now it was moved in arrest of judgment , that it was a mis-trial ; because the venire facias ought to have been of the body of the county , and not of the city , which was also a county of it self : but it was resolved by the judges , viz. foster , reeve , and bankes chief justice , ( justice crawley only against it ) that the trial was good : and this resolution was grounded upon the book of h. . & . pl. . there being no authority in the law ( as was agreed ) in point to this case , but the case aforesaid . and it was taken for a rule , that where it doth not appear upon the record , that there is a more proper place for trial , than where the trial was , that there the trial is good : but here is not a more proper place . further , the chief justice said , that it was not possible to be tried in the body of the county , because that the payment was to be in the city ; and he said , it is true , that if a man speak generally of the county of lincoln ; it shall be intended of the body of the county , and not the city , because that the city is but derivative out of the county : and further he said , that the judges are bound to take notice of a county , not of a particular liberty : yet it was resolved here , because the trial was in the most proper place , and could not be otherwise , that the venire facias was well awarded , and the trial good . see the book of . h. . bayly against garford . . bayly brought an action of debt upon a bond against garford executor of another : the defendant pleaded non est factum of the testator , upon which a special verdict was given , viz. that the testator was bound in that bond with two others joyntly and severally ; and that afterwards the seals of the two others were eaten with mice and r●ts ; and whether now that were the bond of the testator or not was the question : which the jury referred to the court , and it was now argued by serjeant whitfield for the plaintiff , that the obligation stood good against the defendant , notwithstanding the eating of the seals of the two others : and his reason was , because that where three are bound joyntly and severally , that is all one as if they had been several obligations : for as when three are bound joyntly and severally there may be one precipe , one declaration , and one ex●cution against them all together ; so when three are bounden joyntly and severally , there may be several precipes , several declarations , and several executions against them , so it is as it were several and distinct obligations , and therefore the avoiding of part , is not the avoiding of the whole . further , he put cases where a deed which is intire may be void in part , and good for the residue , h. . & . . h. . . and piggots case , rep. . where it is resolved that if some of the covenants of an indenture , or conditions of a bond are against the law , and some good and lawful , that in that case the covenants and conditions which are against the law , are void ab initio , and the others shall stand good : and he cited the rep. . matthewsons case , as a strong case to this purpose . but the court said , that that case of the rep. differed from this case : for there certain persons covenant separatim , and there the breaking of the seal of one of the parties from the deed shall not avoid the whole deed , for it is as several deeds ; but here they are bound joyntly and severally , which alter●th the case . besides , he said the book in h. . . made not against it , for there it shall be taken that they were bound joyntly and not severally as in this case ; and he cited a rep●rt in the point , which was trinit . . iae. in this court betwixt banning and symmonds , where the case was , that twenty ●●ght merchants were bound joyntly and severally ( as●●ur case is ) and three of their seals were broken from the de●d , but notwithstanding it was resolved that the deed did 〈◊〉 good against the others ( note , that the court doubted of that report , and therefore ordered that the roll should be searched ) and the objecti●● here , that it is joynt , is worth nothing , because it is several also ; and he said , that i● two levy a fine , one within age , and the other of full age , he said it is good in part , and voidable in part ; and if a fine , which is a matter of record , may be good in part and voidable in part , àfor●iori he conceived a matter in fait , as a bond : and 〈…〉 of the fine he said was englishes case adjudged : and he would have taken a difference betwixt rasing , inter●●●tion and addition , as is in piggots case , that the same shall avoid the whole deed . but that the breaking of the seal of one should not avoid it but for part . but the court said , that it was clearly all one , wherefore he prayed judgment for the 〈◊〉 serjeant pheasant contrary , that the whole deed is avoid●d , and non est factum of the defendant , it is not the same b●●d in nature and effect as it was before , and as rep. w●elpdales case , is if the deed were altered by inter●●●ation , ●odition , rasure and breaking of the seal , there the d●●●nd●nt may plead non est factum , because it is not the same deed : so in this case it is not the same deed , for whereas it was joynt at the first , now if the deed should stand good against the defendant only , it should be his bond only , where it was his bond , and the bond of another at the first , and so not the same bond ; and h. . . ought to be taken of a bond joynt and several , because that most bonds are so , and then it is clear our very case , and there it is resolved , that if two be bounden in a bond , and the seal of one is dissolved and taken from the bond , that it avoids the whole deed , and it is not an obligation joynt and several , but joynt or several at the election of the obligee , for he cannot use both ; and when he hath by his own act deprived himself of this election ( as in our case ) which goes in prejudice of the obligor , who is the defendant , the whole bond is thereby gone , for by that means the defendant only shall be charged , where both were ; and therefore he conceived that if i grant unto a man an annuity , or a robe , if the grantee release one of them , both are gone , because he hath deprived himself of election : so in this case : he by his default should prejudice the defendant here , which ought not to be , & he compared this case to laughters case , c. . rep. . besides , if the whole deed should not thereby be avoided , it should be a great prejudice to the defendant , in as much as if all happen to be in execution for the debt due upon that bond , as by the law they may , and the one escape , the same should give advantage to the others to have audita querela , and by that to discharge themselves , which the defendant here should lose , if the obligation should stand in force as to him only , rep. . sir iohn needhams case , if a woman obligee taketh one of the obligors to be her husband , the same is a discharge to the other . two commit a trespass , the discharge of one is the discharge of both , yet it is there joynt or several at the will of the party who releaseth . but it may be objected , that it is a casual act here , and therefore shall not be so prejudicial to the plaintiff here . to that he answered , that that shall not help him , because it is his own lachess and default ; and the same objection might have been made in piggots case , where the obligation is altered in a material place by a stranger without the privity of the obligee , and yet there it was resolved that the same shall avoid the deed . besides , if the obligee had delivered the same over to another to keep , and it had been eaten with rats and mice , yet that would not excuse him , and by the same reason shall not help the plaintiff here . matthewsons case , c. rep. differs much from this case , because there the covenants are several , and not joynt as in this case , and therefore if the covenan●ee doth release to one of the covenanters , that shall not discharge the others . for the cases of h. . and piggots case they differ much from our case , for there the covenants or conditions against the law are void ab initio by the construction of the law , and no alteration as in our case by the act or default of the party by matter ex post facto , and therefore those covenants or conditions against the law cannot vitia●e those which were good and according to law , because they took not any effect at all . so if a monk and another be bound , the bond is void as to the monk , and good as to the other , because there is no subsequent alteration by the party ; but the same is void by construction of law ab initio : and upon the same reason stands the case of the fine put of the other side . for which causes he prayed judgment for the defendant . note , the court , viz. foster , reeve , crawley and bankes chief justice did strongly incline that judgment ought to be given for the defendant ; and their reason was , that if the obligee by his act or own lachess discharge one of the obligors , where they are joyntly and severally bound , that the same discharges them all : but gave day for the further debating of the case , for that this was the first time it was argued . . by justice foster and bankes chief justice , a trust is not within the statute of iac. cap. . of limitations ; and therefore no lapse of time shall take away remedy in equity for it ; but for other actions which are within the statute , and the time elapsed by the statute , there is no remedy in equity ; and that ( they said ) was always the difference taken by my lord keeper coventry : but justice crawley said , that he had conferred with the lord keeper , and that he told him that remedy in equity was not taken away in other actions within this statute . . it was said by the whole court , that they never grant an attachment without an affidavit in writing . . the case before of the warrant of attorney , was betwixt firburne and cruse , and was entred trinit . car. and now it was resolved upon reading of presidents in court , that no warrant of attorney shall be made or filed , because that it is an error and not helped , being after judgment in nihil dicit , & that none of the presidents came to our case . the greatest part of presidents were these , viz. the first was car. taylor against thellwell , the same appeared to be upon demurrer , and no judgment given . another was mich. car. peasgrove against brooke , and in that case it did not appear that any writ of error was brought . another was , paseh . . car. tayler against sands . another hill. . car. smith against bland , in that it was conceived to be amendment only ; and it was agreed for law , that where there was a warrant of attorney , it might be amended for any defect in it , as where there is a misprision of the name or the like , as it is resolved br. amendment . and so is and phil. and mar. dyer . pl. . expresly , where alicia for elizabetha in the warrant of attorney was amended ; and that after a writ of error brought by construction of the statute of h. . and so is e. . br. amendment . and justice reeve said , it cannot appear to us by any of the said presidents , whether there was a warrant of attorney or not : and perhaps upon examination it might appear to the judges that there was a warrant of attorny , which is helped by the statute of h. . and that might be the reason which caused them to order that it should be filed ; but that doth not appear to us , and therefore the presidents were not to the purpose . besides , it doth not appear by any of them whether judgment were given or not ; and before judgment it may be amended , as the book is , e. . . br . amendment . besides , in one of them the plaintiff did neglect to remove the record , which is the very case in dyer , and that was the reason that the warrant of attorney was filed , but in this case there appearing to be no warrant of attorney it is not helped by the statute of h. . and after a judgment , and that upon nihil dicit , which is not holpen by the statute of eliz ▪ and there is no lachess in removing of the record by the plaintiff , and for these reasons the whole court was against the defendant in the writ of error , that it was error , and therefore ought not to be amended . note , that in this case it was moved that the warrant of attorney might be filed in this court , after error brought in the kings bench : but observe , that if it had been a thing amendable , that had been no impediment to it , for things amendable before error brought , are amendable after , and if the inferior court do not amend them , the superior may , and so it is adjudged rep. . in blackm●res case . and so is the case express in the point , and phil. and mar. dyer . pl. . where a warrant of attorney was amended in banco after error brought and the record certified . this is only my own observation upon the cale . mich. º car. in the kings bench. . an information was brought for the king against edgerley carrier of oxford , because that where by the custom of england no carrier or other person ought to carry above two thousand weight , and that with a waggon having but two wheels , and but four horses , that the defendant had used for the space of a year last past to drive quoddam g●statorium , anglicè a drag or waggon , cum quatuor rotis & cum inusitato numero equorum , viz. with twelve horses betwixt oxford and london , and he had used to carry with it five thousand weight , so that he had digged and spoiled the way in a lane called lobbe-lanè , that the people could not pass . to which the defendant pleaded not guilty , and was found guilty by verdict ; and many exc●ptions were taken to the information : all which were over ruled by the cour● , viz. mallet and heath justices , and bramston chief justice , to be 〈◊〉 : the first was , that he drave a waggon cum i●usitato numero equorum , and doth not shew the certain number of them , and therefore the information which was in the nature of a declaration was not good for the incertainty . but per cu●iam the same was mistaken , for it saith , that he drave with eleven horses . the second exception was , that the usual weight which it ought to carry is not shewed ; but that was ruled also to be a mistake , for it saith weight . the third was , that it is not shewed in the information that the way did lead to other market-towns than from oxford to london ; but it was ruled to be good notwithstanding that exception , because that the place à quo , and the place ad quem is set down . and it is not material whether it lead to other towns or not . the fourth exception was , that the nusance is said to be in a place called lobbe-lane , and it is not shewed of what quantity or extent that lane is , viz. how many poles or the like : but it was ruled to be good , notwithstanding that , first , because that the jury have found that the way was stopt that the people could not pass ; and if it was so , then it 's not material how long it was . secondly , lobbe-lane is said only for the certainty of the place , that the vi●●e might come from it : for of necessity it will be a nusance through the whole way betwixt oxford and london . and lastly , the nusance is laid to be through all lobbe lane , and therefore it is good notwithstanding that exceptson also . and therefore the matter and form of the information being admitted good , then the question was , what judgment sh●ould be given in this case ; whether that the carrier should repair it at his own costs , or should be fined for the nusance to the commonwealth or not ? justice mallet : there are several judgments in cases of nusance ; if it be an assise quia levavit , or quia exaltavit , it ought to be part of the judgment , that the defendant demolish it at his own costs : so where a nusance is to a river , ass. pl. . but our case differs much from the case of the river , for that is a high-way which leadeth to a port to which all resort , and therefore a stronger case : but he conceived that the judgment should not be that he should repair it , because it is said in the information , that the township ought , and therefore it differs from those cases : and he doubted whether he should be fined or no , because that the information is not vi . & armis , and not against any sta●ute , for then it should be a contempt , and so fineable : but notwithstanding he agreed , that he should be fined . first , becaus● it is layed to be contra pacem domini regis , & ad nocumentum of the kings people , which is a contempt , and therefore fineable . secondly , because that although it is not laid to be vi & armis , yet it is laid to be a rooting and spoiling , which implieth fo●●e ; ass. & ass. . where a nusance was with force , there the defendant was fined : then admitting that the defendant shall be fined ; the question then is , what fine shall be set upon him ? and he said , that it shall be secundum quantitatem delicti , & salvo wainagio suo , according to the statute of magna charta , cap. . & west . . so that we ought not to assess a fine upon any freeholder to take away his contenement ; no● upon any villain to take away his wainage ; and he said , that he conceived that the fine set upon him ought to be the less , for the great prejudice which might come to the defendant , because that the township might have an action upon the case against him , because they are bound to repair it , and therefore he cited h. . . further , he took exception to it , that it is not shewed of what value or estate the defendant is , so as we might know what fine to impose ; for such fine ought to be imposed salvo w●inagio suo as aforesaid : and he compared it to the case in e . . a juror is demanded , and doth not appear , he shall be fined to the value of his estate for a year : but that ought to be enquired of by the jury , and not set by the court , because they do not know the value of his estate , so in this case : but notwithstanding he agreed , that he should be fined , because it appeareth to us how great his fault was , and the fine ought to be as aforesaid , and therefore he set a fine upon him of four marks . justice heath : two things are here considerable , whether there shall be any judgment as this case is ; and admitting that there shall , what judgment shall be given ; and he agreed that judgment should be given , because that the information is good , as well for the form as for the matter of it : it is good for the matter of it , because malum in se & ad nocumentum publicum , and therefore it is properly p●●●shable in this court , & the rather now , because not punishable in another court , the star-chamber b●ing now taken away : and it is good for the form of it , for it hath sufficient certainty , as is before shewed . now for the judgm●nt what shall be given , he agreed that he should b● fined and imprisoned ; for imprisonment is incident to a fine , but he did not determine what the fine should be , he agreed the rule that the fine shall be secundum quantitatem delicti , and that cannot be so ●ittle as it is made : for although lobbe-lane be layed in which the nusance should be , that is only for necessity , that there may be a certain place for the vis●e , but of necessity the n●●ance is through the whole high-way betwixt oxford a●● london . and because we will not offend as the star-chamber did by assessing too high fines , for which it was justly condemned ; so upon the other side , we ought not to set so small fines , that we injure justice , and be thereby an occasion to increase such faults where we ought to suppress them : and therefore he conceived the fine set by mallet too little ; but he agreed , that the judgment should be fine and imprisonment ; but he adjorned the setting of the fine , until he had consulted with the clerks , whether it should be inquired of by commission , or other good information . bramston chief justice , that the information is good for the matter and the form : but he objected , that where it is said , that he did drive quoddam gestatorium , that gestatorium is a word incertain , and that therefore the information should be insufficient ; but he agreed that notwithstanding that , that it was good by reason of the auglicè ▪ for that reduceth it to certainty ; and he cited the case betwixt sprigge and rawlinson , p●seh . car. in this court ; where the case was , that a man brought an ejectione firme de uno repositorio , which word was put for a warehouse , and resolved that it was naught for the incertainty , but the chief justice here said that it had been good if it had been explained by an anglicè , and so he said it was resolved in that case , and therefore he agreed that the information here was good notwithstanding that exception by reason of the anglicè , this offence is an offence against the commonwealth , and such an offence for which a man may be indicted , for it is ●aid in the information to be ad nocumentum ligeorum domini regis , wherefore he agreed that the judgment should be a fine with capiatur , and he said , that it cannot be part of the judgment in this case , that the defendant should repair it , because it is said in the information expresly , tha● the parishioners ought to repair it : and the chief justice said , ( and so justice heath which i before omitted ) that the township cannot have their actions , for so there should be multiplicity of actions , which the law will not suffer ; but he conceived that if any man had a special and peculiar damage , then he might have his action , otherwise not : as if a man were bound by prescription or tenure to repair that place called lobbe-lane , or any part of it , then he might have his action upon the case against the defendant , otherwise not : he agreed that the fine should be secundum quantitatem delicti ▪ but yet not too high , because the other parishes may have their information in like manner against the defendant , but he agreed to adjorn the setting of the fine . southward against millard . . in an ejectione firme , the defendant pleaded not guilty . upon which a special verdict was found . nicholls possessed of a term for years , devised the same to e. his daughter for life , the remainder to iohn holloway ; and made lowe the husband of the daughter his executor and died : iohn holloway devised his interest to henry and george holloway , and made oliver and others his executors and died ; afterwards lowe spake these words : if e. my wife were dead , my estate in the premisses were ended , and then it remains to the holloways . e. died , the executors of iohn holloway made the lease to the plaintiff , and lowe made the lease to the defendant , who entred upon the plaintiff , who brought ejectione firme ; and whether upon the whole matter the defendant were guilty or not of the trespass and ejectment supposed , the jury referred to the court : and the points upon the case are two . first , whether the words spoken by lo●e the executor be a sufficient assent to the devise or not : admitting that it is , then the second point is , whether th● assen● came in due time or not , as to the interest of iohn holloway in the remainder , because he died before the words spoken which should make the assent ; and as to that , the p●int is no other , but that the legatee dieth before assent to the legacie , whether assent afterwards came too late , or that the legacie shall be thereby lost or not , that is the question : and by justice mallet , it is a good assent , and that in due time , and here some things ought to be cleared in the case . first , that the devise to iohn holloway in the remainder is good by way of executory devise . secondly , that the devise by iohn holloway to henry and george is a void devise , because but a possibility . thirdly , that the assent to the first devise is an assent also to him in the remainder . and lastly , that if an executor enter generally , he is in as executor and not as devisee : all which are resolved in lampetts and in matthew mannings case . now these cases being admitted , the question is , whether that lowe the executor here hath made a sufficient declaration , to take the term as devisee in the right of his wife , or not : for he hath his election to take it as executor , or in the right of his wife ; and as i conceive he hath made a good election to have it as legatee in the right of his wife . the last words , viz. that then it remains to the holloways , which is impossible by law to be , because that the devise to them was void , he did not waigh , because but additional , and the first words of themselves are sufficient to make an assent , it is not a transferring of an interest , but an assent only to it , which was given by the first testator , and after assent , the devisee is in by the first testator , and that being but a perfecting act like an attornment , and admittance of a copy-holder , the law always favours it , for the law delights in perfection , and therefore an assent by one executor shall binde all , so an assent by one infant-executor above years shall binde the other , so an assent to the particular tenant is good to him in the remainder ; admittance of a copyholder for life , is admittance of him in the remainder : which cases shew that an assent being but a perfecting act , the law shall always make a large construction of it : and he said , that mannings case in the rep. is the very case with our case , as it appeareth in the pleading of it in the new book of entries . b. and also in mannings case aforesaid , but that case was not resolved upon that point , for the devise there was , paying so much , and the devisee being also executor payed the money , and therefore it was ruled to be a sufficient assent to the legacie , and therefore our case may be doubted notwithstanding that case ; and for my part i conceive it a good assent to the legacie in our case . and for the second point , i hold that the assent comes in due time to settle the remainder , although that iohn holloway were dead before , for otherwise by this common casualty of death , which may happen so suddenly that an assent cannot be had before , or by the wilful obstinacie of the executor , that he will not assent , legatees should be defeated of their legacies , which would be a great inconvenience . besides , i hold that the devise by iohn holloway was void , he having but a possibility at the time of the devise , and therefore that it remain to his executors , and by consequence , that the ejectione firme brought by their lessee will lie . justice heath acc . for the plaintiff : three things are here considerable . first , whether there need any assent at all of the executor to a legacie . secondly , whether here be an assent or not . thirdly , whether this assent come in due time or not . the first hath been granted , that there ought to be assent , for the great inconvenience which might happen to executors if legatees might be their own carvers , and so are all our books except h. . . and h. , . which seem to take a difference ; where the legacie is given in certain and in specie , there it may be taken without assent , but where it is not given in certain , there it cannot ; but he held clearly the law to be otherwise , that although it be given in certain , yet the legatee cannot take it without assent of the executor ; for so the executor should be subject to a devastavit without any fault in him , or any means to help himself , which should be very inconvenient . then the second thing here to be considered is , whether there be an assent or not : it is clear , that if an executor enter generally , he shall be in as executor , and not as legatee , for that is best for him to prevent a devastavi● ; and it is as clear , that if he declare his intention to be in as legatee , that then he shall be so : then the question here is , whether the words in our case be a sufficient declaration of the mind of the executor to take the same as legatee in the right of his wife or not : and i hold that it is . he agrees that the second words are not so weighty as the first ; but he held the first words are sufficient of themselves to make an assent : and when he saith , that then it remains to the holloways , that proves that he took notice thereof as a legacie , and that he would have it in that right , although in truth the devise by iohn holloway was void , so as it could not remain to them . for the third , he held that the assent came in due time , otherwise it might be very prejudicial to legatees , for else by that means they may be many times defeated of their legacies : for put case that an executor will not assent , and the legatee dieth before he can compel him to assent , or that the legatee dieth in an instant after the devisor , in the rep. princes case it is resolved that an infant under may not assent to a legacie , nor the administrator durante minori aetate ; then put case that the legatees die during the administration , durante minori aetate , in whose time there cannot be an assent , it would be a v●ry great mischief , if that in any of these cases the legatees should be defeated of their legacies , when by possibility they could not use any means to get them : wherefore he held clearly that the assent of the executor after the death of the legatee came in good time , and therefore he concluded for the plaintiff . bramston chief justice also for the plaintiff . for the first point , he held that there is a good assent ; and he said , that mannings case hath the very words which our case hath , but my lord cooke did not speak of these words in the report of the case , because he conceived that the payment of the money was a sufficient assent to the legacie : but further i conceive , that it differs fully from mannings case , for there it is found expresly , that the executor had not assets , and therefore it should be hard to make him assent by implication , thereby to subject himself to a devastavit ; for as i conceive , an executor shall never be made to assent by implication where it is found that he hath not assets , but there ought to be an express assent , by reason of the great prejudice which might come unto him , but in our case it is not found that lowe had not assets : an infant cannot assent without assets ; but if there be , then it shall bind him , and perhaps that was the reason that my lord coke did not report any thing of these words , whether they were an assent or not ; and his passing over them without saying any thing of them , seems partly to grant and agree , that they did not amount to an assent . a man deviseth unto his executor paying so much , and he payeth it , it is a good assent to the legacie ; so is matthew mannings case rep. and plowden comment . wel●den and elkingtons case : and he said , that an assent is a perfecting act which the law favours , and therefore he said that it was adjudged , that where an executor did contract with the devisee for an assignment of the term to him devised , that it was a good assent to the legacie . for the second point also he held clearly that the assent came in due time ; for otherwise it should be a great inconvenience , for by that means it should be destructive to all legacies ; for of necessity there ought to be an assent of the executor , and if he will not assent , and the legatee dieth before he can compel him to assent , or if the legatee dieth immediately after the devisor before any assent to the legacie , in the first case it should be in the power of the executor , who is a stranger , to prejudice me ; and in the latter case , the act of god should prejudice me , which is against two rules of law , that the act of a stranger , or the act of god shall not prejudice me , wherefore without question the assent comes in due time . besides , if a legatee dieth before assent to a legacie , the same shall be assets in the hands of his executors ; and the legatee before assent hath an interest demandable in the spiritual court. an executor before probate shall not have an action , but he may release an action , because that the right of the action is in him : so in this case , although that the legatee before assent hath not an interest grantable , yet he hath an interest releasable . a man surrenders copyhold-land to the use of another , and the surrenderee dieth before admittance , yet his heir may be admitted ; and this case is not like those cases put at the bar , where there is but a meer possibility , and not the least interest ; as where the grantee of a reversion dieth before attornment , or the devisee before the devisor , in those cases the parties have but a meer possibility , and therefore countermandable by death : but it is otherwise in our case , as i have shewed before , and therefore i conclude that here is a good assent , and that in due time , and therefore that the ejectione firme brought by the plaintiff well lieth . dale and worthyes case . . dale brought a writ of error against worthy to reverse a judgment given in the county-palatine of chester ; and the writ of error bore teste before the plaint there entred , and whether the record were removed by it or not , was the question : and the court , viz. mallet , heath and bramston were clear of opinion , without any solemn debate , that the record was not removed by that writ of error , because that if there be not any plaint entred at the teste of the writ , how can the processus according to the writ be removed , when there is no processus entred ? and that failing , all fails ; and besides , it is meer for delay of justice : and they agreed , that a writ of error bearing teste before judgment is good , as is the book of e. . . because that there the foundation stands good , and it is the usual course of practise for the preventing and superseding of execution . tuder against rowland . . an ejectione firme was brought ; and in the writ was vi & armis , but it wanted in the declaration , and whether it were error or not , or whether it were amendable or not , was the question : and shaftoe for the plaintiff held clearly that it was not error ; but the court did not hear it at that time : the case was entred pasch. car. rot. . . bolstrood prayed a prohibition to a court-baron , as also an attachment against the steward for dividing of actions to bring the same within their jurisdiction to defeat the common law , as also for refusing to suffer the defendant to put in any other attorney for him than one of the attorneys of that court : and the court awarded a prohibition , and the steward darey of lincolns-inn , then at the bar , the court ruled that he stand committed until he had answered to interrogatories concerning that misdemeanor ; and they said , that an attorney at common law is an attorney in every inferiour court , and therefore ought not to be refused . rudston and yates case , entred hill. car. rot. . . rvdston brought an action of debt upon a bond against yates ; the defendant demanded oyer of the deed and condition thereof , and upon oyer it appeared , that the bond was conditioned to perform an award : to which the defendant pleaded that the arbitrators made no arbitrament ; upon which they were at issue , and the jury found this special verdict , that the defendant yates and one watson submitted themselves to arbitrament , and found that the arbitrators made an award , and found the award in haec verba ; but further , they found that watson was within age at the time of the submission : and whether upon the whole matter the arbitrator had made any award or not , the jury left it unto the court ; so as the question is no other , but whether an infant may submit himself to an award or not : for it was agreed , that if the submission were void , that the award was void , and by consequence the bond void ; and note , that the case was , that yates bound himself that watson who was an infant should perform the award ; and the condition recites , that where watson who was an infant had submitted himself to an award , that the defendant binds himself that he should perform it , &c. so then if the submission be void , all is void ; no submission , no award , and so no breach of the condition , and therewith the books agree , e. . . e . . h. . . rep. . rep. . b. and by justice mallet , the submission is void , and void in part , void in all , for a submission is an entire thing , and therefore cannot be void as to the infant , and stand good as to the man of full age . there are but two books express in the point , h. . . & h. . . and none of those are of any authority ; in the first there is no debate of the case . and the second is a flat quere : and as i conceive the better opinion is , that the award is void ; for where it is there objected that it may be for the avail of the infant , br. tit . coverture and infancie says quere of that , for it may be that the recompence given by the award , may be of greater value than the law would give in the action , and therefore by possibility it may be a disadvantage unto him ; and the case betwixt knight and stone , hill. . car. in this court , rot. . where this very point was in question , it was resolved that if the infant had been bound to perform the award , that the obligation had been void . further , it was agreed , that if it appear afterwards to be to his prejudice , that that shall make the award void ; but the principal point was not adjudged , because that the parties agreed . but whereas it was then , and now also objected , that if an infant cannot submit himself to an arbitrament ; that thereby he should be in a worser case than a man of full age , for he may have done a trespass which subjects himself to damages by suit in law , which if he cannot discharge by this way , he should be in a worse condition than a m●n of full age , for he should lose that advantage . to that he answered , that if an infant should be permitted to that , he might have loss thereby , for he hath not discretion to chu●e a comp●tent arbitrator , and an arbitrator might give greater damages than the cause did require : and he is worse than a judge of the court is , he is not sworn , a judge is : besides , an in●ant hath divers priviledges which the court would allow , but an arbitrator not . if an infant make default , the same shall not bind him ; so if he confess an action , the same shall not bind him , and therefore he is in better case without submission , than by it : and if an infant cannot chuse an attorney , much less a judge , for an arbitrator is a judge : an infant cannot bind himself apprentice , although it may be pretended to be for his benefit ; so h. . . he cannot chuse a bayliff , yet that is for his benefit ; he cannot give an acquittance if he do not receive the money , rep. russels case , but if it be apparent for his benefit , it may be good , as a lease of ejectment to try a title made by an infant is good , because it is apparent for his benefit : an infant is in custodia legis , and therefore we are bound by oath to defend him . besides , an infant hath not power to dispose of his goods himself , and then how can he give such a power to another ? for which reasons he conceives the submission void ; and if no submission , no award ; and therefore he gave judgment against the plaintiff , quod nihil capiat per ●illam . justice heath also against the plaintiff : true it is , that in this case a stranger is bound that the infant shall perform the award , but that recites the submission by the infant ; and the issue is , whether they made any award or not , so as the ground is , whether there be any submission or not ; for no submission , no award , that so by consequence judgment ought to be given against the plaintiff : and he held clearly that the submission is void , that an infant cannot submit himself to an arbitrament : the judgment of arbitrators ( provided that they keep themselves within their jurisdiction ) is higher than any judgment given in any court ; for if they erre , no writ of error lieth to reverse their judgment , and there is not so much as equity against them , and therefore it should be a hard case , that an infant should have power to submit himself to that which should be final against him , and no remedy ; for , consensus tollit errorem : wherefore he conceived that the submission was void ; and if that which is the ground fa●ls , all fails . an infant may take any thing , for that is for is advantage , and cannot prejudice him ; and the church l●ke an infant is in perpetual infancie , and conditionem meliorem facere potest , but deteriorem nequaquam : and where it was objected in this case , that this submission might be for the avail of the infant , and therefore should be good ; he answered , and took this for a rule , that an infant shall never submit himself to any thing under a pretence of benefit , which by possibility may prejudice him ; and with that agreeth the better opinion of h. . . that it shall not bind him because it may be to his prejudice , for they may give greater damages than peradventure the law would give in any action brought against an infant . but h. . is not any authority . where it was objected , that it shall be voidable at the election of the infant ; to that he answered , that it is absolutely void , and therefore there cannot be any election ; and it should be hard , that the man of full age should be bound , and the infant not : an infant shall not be an accomptant , because that auditors cannot be assigned to him ; and he conceived that an infant cannot bind himself an apprentice , but it is usual in such cases for some friend to be bound for him ; and as this case is , it appeareth by the award that it might be for the prejudice of the infant . for the arbitrators award , that the infant shall pay five pound for quit-rents and other small things ; now what these small things were non constat , and they might be such things , for which by the law the infant was not chargeable ; and by the same reason that they may assess five pound , they might have set twenty pound and more ; and it should be inconvenient that an infant should have such a power to submit himself to the judgment of any which might charge him in such manner . besides , part of the award is void for the incertainty , for it is said small things ; and it doth not appear what in certain ; and void in part , void in all ; and for these reasons he gave judgment against the plaintiff . bramston chief justice agreed , that the submission is void , and not voidable only , as it was objected ; for then it should be tale arbitrium until reversal of it . h. . and h. . are no authorities ; or if they be , the best opinion is for the infant , as it hath been observed , and knight and stones case cited before is no authority , for no judgment was given in the case . but all in that case agreed , that the award was void ; because it was awarded that the infant upon the payment of an hundred pounds should make a release , which proves that the submission was also void ; because that if it should be good , by the same reason the release . where it was objected , that it shall be voidable at the election of the infant ; to that he answered , that the submission ought to be either absolutely good , or absolutely void ; for the end of an arbitrament is to conclude and compose controversies , and the arbitrators are judges to determine them ; which should never be done , if it should lie in the power of the infant to make good or frustrate the arbitrament at his election ; for which cause , to say that it shall be conditional is against the nature of an arbitrament ; and to say , that it shall bind the infant absolutely cannot be ; and to say , that it shall bind the one and not the other is unequal : besides , there can be no election in this case ; for if he were within age , nothing binds him , if at full age he ought to perform it ▪ besides , the arbitrament it self , as this case is , and as it was before observed by heath , is void : for the award was , that the infant should pay five l. for quit-rents and other small things , and it doth not appear what those small things were ; so that for any thing that appeareth , it might be for such things for which the infant by the law was not chargeable , and therefore is void for the incertainty ; and void in part , void in all ; and by the same reason as the arbitrators might award five pound , they might award twenty pound or more . but he conceived that if it had appeared in certain , that the things had been such , for which the infant is by the law chargeable , perhaps it had been good ; but here it doth not appear what the things were , and therefore it was not good . trinit . car. pickering and iacobs case , it was resolved that a bond taken for necessaries of an infant was good , e. . arbitrators award more than the debt is , the same is naught ; so here , for any thing that appeareth to the contrary , the award was to pay such things as the infant was not liable to pay ; and therefore void . but note reader , i conceive that an infant cannot submit himself to an arbitrament for things for which by the law he is chargeable , for the reason given before , because the arbitrators may charge him farther than by the law he is liable ; which should be to his prejudice , and he hath not any remedy for it . judgment was given against the plaintiff , quod nihil capiat per billam . the case was entred hill. car. rot. . the serjeants case , trin. o car. in the common pleas. . the serjeants case was this . a. seised of land in see , b. his brother levied a fine come ceo to c. b. had issue d. and died . a. died without issue , c. entred : d. entred and gave it to c. and r. his wife , and to the heirs of their two bodies . c. levied a fine come ceo with proclamations to d. c. and r. have issue l. c. dieth : d. confirmeth to r. his estate , to have to her and the heirs of her body by c. begotten . r. dies , d. enters , l. oustes him , d. brings entre in the quibus . in this case there are two points ; first , whether the fine levied by b. shall bar his issue as this case is , or not : and that is the very point of edwards and rogers case , pasch. car. in the kings bench : and admitting it shall not bar d. then the second point is , what is wrought by the confirmation , if by that the issue in tail shall inherit or not , and that is the very point in the rep. beaumonts case . saunderson and ruddes case in common pleas , trin. car. . saunderson brought an action upon the case for words against rudde ; the case was this : the plaintiff being a lawyer , was in competition for a stewardship of a corporation ; and the corporation being met together for election of a steward , the plaintiff was propounded to be steward , and then the defendant being one of the corporation , spake these words of the plaintiff to his brethren of the corporation : he ( praedict the plaintiff innuendo ) is an ignorant man , and not fit for the place : and he said , that by reason of speaking of these words , that they refused to elect him steward ; and whether these words were actionable or no , was the question . this case was argued twice in trinity-term by callis and gotbold serjeants , and the judges seemed to incline to opinion , that the words were actionable , but yet no judgment is given . selden against king in common pleas , trin. car. regis . . in a replevin the case was thus : a man granted a rent out of certain lands , and limited the same to be paid at a house , which was another place off the land ; and in the grant was this clause , that if the rent were behind , and lawfully demanded at the house , that then it should be lawful for the grantee to distrein : the rent was afterward behind , and the grantee distreined , and upon traverse taken upon the demand , whether this distress upon the land ( which had been good in law if there had not been a special limitation of demand at a place off the land ) be a good demand as this case is , was the point . mallet serjeant : the distress is a demand in it self , and there needs not any other demand , although the rent be to be paid off the land as here . and it was adjudged in this court about years past , that the distress was a sufficient demand : but i confess that a writ of error is brought in the kings bench , and they incline there to reverse it , and there is no difference where the rent is payable upon the land , where not , and so it was adjudged , trin. car. rot. or . betwixt berriman and bowden in this court : and he cited also fox and vaughans case , pasch. car. in this court , and sir iohn lambes case , trin. car. rot. . in this court , both adjudged in the point ; and he cited many other judgments . iermyn serjeant contrary , that the distress is no sufficient demand as this case is : he ought to demand it at the place appointed by the grant , for it is part of the grant , and the words of the grant ought to be observed , h. . dyer . . and in the comment . . a. it is said , that modus legem dat donationi , and therefore by the same reason that the grantor may appoint the time and place of payment , as here he hath done ; by the same reason he may appoint a place for the demand ▪ and that he shall make that demand before he distrein ; for the same is neither repugnant nor impossible , nor against the law , and therefore good , and by consequence ought to be observed : and then he answered the cases which were cited to be adjudged against him . in symmons ▪ case in the kings bench there it was resolved that a distress was a demand in law , and a demand in law is as strong as a demand in fact , as it was said by justice barckley in debate of that case . but note , that in that case there was no time in certain limited : and further , in that case the rent was payable upon the land , and therefore in that case i agree that a distress will be a good demand , because that the demand is to be made upon the land , but it is not so in our case . in sands and lees case , trin. iac. in this court , there also the rent was payable upon the land . berriman and bowdens case , trin. car. cited before , i agree was our very case in point , but there judgment was given upon confession , and therefore doth not rule our case ; and in sir iohn lambes case there was no judgment given , and therefore that doth not rule our case ; but melsam and darbies case m. car. rot. . in the kings bench a case in the point , where judgment was reversed upon a writ of error there brought for want of demand , and selden and sherleys case in that court , a case also in the point was reversed , mich. car. in the kings bench upon a writ of error brought for want of demand : wherefore i conclude , that there ought to have been an actual demand at the house according to the grant in our case , and therefore the traverse in this case taken by the grantor is well taken . note , that justice crawley said , that lambes case was adjudged that there needed no demand , and he said , that there were three judgments accordingly in this court : but rolls serjeant said , that darbies case was reversed in the kings bench for want of a demand . but note , that foster and reeve justices , did incline that there should be a demand , and so bankes chief justice , for he said , that it is part of the contract , and like a condition precedent ; for as in a condition precedent , a man ought to perform the condition before he can take any thing by the grant , so in this case the grantee ought to make a demand to enable him to distrein , for before the demand he is not by the manner of the grant ( which ought to be observed ) entitled to a distress : wherefore he give direction to the counsel that they would view the records , and shew them to the court ; and further he said to them , that where it appeareth , that the rent was demandable upon the land , that those cases were not to the purpose , and therefore wished that they would not trouble the court with them . levet and sir simon fanshawes case in common pleas , trin. . car. regis . . levett brought debt against sir simon fanshawe and his wife as executrix of another , and sued them to the exigent , and at the return of the exigent , the defendant sir simon fanshawe came in voluntarily in court , and prayed his priviledge because he was an officer of the exchequer : and whether he should have his priviledge in that case or not , was the question , and that rests upon two things . first , because he is sued , as this case is , meerly for conformity and necessity-sake , and in the right of another , viz. in the right of his wife as executrix . and secondly , because he demands his priviledge at the exigent . whitfield serjeant , that he ought to have his priviledge , and he cited presidents as he said in the point , as pasch. eliz. in the exchequer , iames ashtons case s●rvant to the treasurer , and pasch. . iac. rot. . stantons case also in the exchequer , in both which cases he said husband and wife were sued in the right of the wife , and the husband had his priviledge . but he cited a case which was nearer our case , and that was hill. . iac. in the exchequer , wats and glovers case , where husband and wife were sued in the right of the wife as executrix ; and he said , that it was over-ruled that the husband should have his priviledge h. . . and h. . . in those cases the husband and wife were sued in the right of the wife , and yet the husband was allowed his priviledge : but see reader h. . . & h. . . against it : and note , that many of these cases come to the second point , whether he may demand his priviledge at the exigent or not ; but for that see e. . . br. priviledge . & e. . . br. priviledge . rolls serjeant contrary , that the defendant ought not to have his priviledge ; and he said , that use , practise , and reason is against it ; and he took these differences . first , where the defendants are coming to make their appearance , and are arrested , as in . h. . . and where they are sued in one court , and the husband demands his priviledge , because he is an officer in another court , as in our case . secondly , where he is defendant , and where he is plaintiff . and lastly , where he is sued in his own right , and where in the right of another , as in our case . for in the first of these differences he shall have his priviledge , in the latter not ; and it is to ouste this court of jurisdiction , and therefore shall be taken strictly . besides , if in this case the defendant should have his priviledge , we should be without remedy ; for we cannot have a bill against the wife , and we have no remedy to make the wife to appear ; and therefore it should be a great prejudice to us , if he should have his priviledge . wherefore he prayed that the defendant might not have his priviledge . note , that bankes chief justice seemed to agree the differences put by rolls , and also he conceived that point considerable , whether the defendant had not surceased his time in this case , because he demands his priviledge at the exigent , and not before . and note , the whole court , viz. foller , reeve , crawley and bankes chief justice seemed to incline , that the defendant should not have his priviledge , because that the action was brought against him and his wife , in auter droit , viz. in the right of the wife as executrix : but no judgment was then given . hillary º car ' in the common pleas. moss and brownes case . . mosse exhibited a bill in the court of requests against brown , and in his bill set forth that the defendant was indebted unto him in the sum of pounds for wares delivered to him : and further , he shewed how that the defendant was decayed in his estate , and was not able to pay him , and therefore he was content to accept of an hundred pound for the whole ; and that the defendant at the payment of the said hundred pound , required the plaintiff to give him a general release , and then promised him in consideration that he would make him a general release , that he would pay to him the residue of his debt whensoever god should please to make him able ; and the defendant divers times afterwards did renew his promise with the plaintiff . further , he shewed that now a great estate to such a value is fallen to the defendant , and that now he is able to pay him , and notwithstanding refuseth so to do ; which is the effect of the plaintiffs bill . to that the defendant answered and pleaded the statute of limitations of actions : and the court of requests would not admit this plea. but note , the defendant pleaded first the general issue , that he made no such promise , upon which they were at issue , and found against him ; and afterwards he pleaded the statute of limitation , and upon the whole matter serjeant clarke moved for a prohibition . first , because the bill is in the nature of an action upon the case at the common law , and whether he promised or not promised is triable at law. secondly , because the court refused the ●●ea of the statute of limitations , which they ●●ght not to do , because there is no remedy in equity against a statute . serjeant whitfield contrary , that no prohibition ought to be granted . first , because the plaintiff hath no other remedy but in equity , because that the assumpsit made before the release is discharged by the release , and the assumpsit which was after , is void ; because there is no consideration , the debt being released before . secondly , our case is not within the statute of limitations , for it is but a trust reposed in the defendant that he would pay the residue when god should make him able : and being a bare trust , is not taken away by the statute of limitations . but he agreed for any action which is within the statute , and is superannuated , that there is no remedy in equity . but in answer to that it was said by clarke , that there is no trust expressed in the bill . but notwithstanding that , it was resolved by the whole court , viz. foster , reeve , crawley justices , and bankes chief justice , that no prohibition ought to be granted , for the reasons given before by whitfield ; and they said , that although no trust be expressed , yet if it appeareth upon the whole bill that there is a trust , it is enough , and he needs not to express it . and note , there was an order of the court of requests produced by clarke , by which it was ordered , that the parties should take issue only upon the subsequent promise , and should not meddle with the first , which as the court conceived made the case a little worse ; notwithstanding the court would not award a prohibition ; for they said , so long as they order nothing against the law , it is good , and they ought to be expositors of their own orders : & therefore if it appeareth upon the merits of the cause , and the body of the bill , that they have jurisdiction of the cause , and proceed as they ought , be their orders what they will , it is not material ; and therefore it was resolved by the whole court that no prohibition should be granted in this case . hill. º car. in the common pleas. . dvdley who was a parson did libel in the arches against crompton for scandalous and defamatory words , which words were these : thou , ( meaning the plaintiff ) lyest , th●u art a fool , and ( putting his hand behind him ) bid him kiss there : and further said to him , thou hast spent ( so much a year ) in drunkenness : and sentence was given for the plaintiff , and now four years after sentence the defendant prayed a prohibition , and the court , viz. foster , reeve , crawley justices , and bankes chief justice , were against the prohibition because the defendant came too late ; but if he had come in due time , the three justices did incline that a prohibition would have lien , because that the words are words only of passion and anger , and god forbid that all words spoken only in wrangling and anger should bear action : but the chief justice inclined that the defendant was punishable in the ecclesiastical court for those words ; for he said , that the suit there is pro salute animae & reformatione morum , and it was fit that his manners should be reformed , who spake such words of a man in orders and a reverend minister . and he said , that although that he held not that where there is no remedy at law , that there they might sue in the ecclesiastical court ; yet he said , that in many cases , where there is no remedy at law , yet there is remedy in the ecclesiastical court , and so he conceived in this case . but that which made justice reeve to doubt whether a prohibition should issue as this case was , or not , was for the incertainty of their sentence , which was for speaking of these words contained in the articles , aut eorum aliqua , which he said is therefore not good , for he said , that judgments or sentences ought to have these two things , veri●y and certainty , and if there want any of these two , it is not good ; and if it should be suffered it were a mischievous case , for by this ●ick they might hold plea of words not within their jurisdiction , and we should not have power to prevent it ; for if some of the words should be actionable , some not , they might by this way hold plea as well of words which were not actionable or punishable by them as of those which were . to which foster agreed ; but justice crawley and the chief justice conceived that no prohibition would lie notwithstanding that , for that might be the course amongst them ; and although it be incertain , yet it may be allowed by them for law : and reeve was of opinion , that a man might be indicted at the assises before the commissioners of oyer and terminer for speaking of such defamatory words , and that he grounded upon the commission of oyer and terminer , which giveth them power to hold plea de prolationibus verborum , and he conceived that a man might be fined for them . but the chief justice contrary , for the commission giveth them power to hold plea secundum legem & consuetudinem angliae : now if the speaking of such words be not punishable by the law and custome of england , then we cannot hold plea of them by way of indictment or otherwise at the assises for them . . it was said by the whole court , that a bare information at the bar is not sufficient to cause the court to examine any man upon interrogatories ; wherefore they ruled , that the party should make an affidavit . . judgment was given against the principal , and after a scire facias was brought against the bail , who appeared and pleaded nul tiel record of the judgment given against the principal , upon which day was given to bring in the record in court , at which day the principal tendred his body in discharge of the bail , and now it was prayed by pheasant serjeant , that it might be admitted ; but reeve , foster and bankes chief justice inclined against it : true it is , that the condition of the bail is , that they render his body ( indefinitely ) withoue limiting any time in certain when they shall do it , or pay the condemnation : but yet they conceived , that if they appear and plead such a dilatory plea as this is , that thereby they have waived the benefit of bringing in his body : and justice foster said , that the same being general and uncertain , the law ought to determine a time certain when it shall be done , for otherwise by the same reason that they may do it now , they may do it twenty years after , which should be inconvenient and against the meaning of the condition . and reeve said , that if this trick should be suffered , that the bail might plead such a dilatory plea , and afterwards bring in the body of the principal , the plaintiff should lose all his costs of suit which he had expended in the suit against the bail , which would be mischievous . but justice crawley , that the usage hath always been , that the bail might bring in the body of the principal at any time before judgment given against them upon the scire facias , and there are many presidents in this court to that purpose . to that the court seemed to agree , if they plead not such a dilatory plea , as in this case : therefore the court awarded , that the pronotharies should consider of it , and should certifie the court what the use hath been in such case . . serjeant pheasant came to the bar , and said to the court , that antiently ( as appeareth by our old books ) the usage was , that the serjeants in any difficult point of pleading , did demand of the court their advise concerning it , ●nd accordingly were used to be directed by the court ; wherefore he humbly prayed of the court to be resolved of this doubt . a man was imprisoned for not submitting to patentees of a monopoly , after seven or eight years past , and then he brought an action of false imprisonment , and that is grounded upon the statute of monopolies , iac. c. . whether in this case the defendant might plead the statute of iac. c. . of limitations of actions , or not , was the question . but the whole court was against him , that they cannot be judges and counsellors , and that they ought not to advise any man , for by that means they should prevent their judgment ; and they confessed that that was the use , when the serjeants used to count at the bar , as appeareth in our books . but they said , you shall never find the same to be used since they counted and declared before they came to the bar , and these counts and declarations are upon record , wherefore the court upon these considerations would not advise him . dewel and masons case . . this case of dewel and mason , which see before , pl. . came now again in debate , and it was adjudged by the whole court , viz. foster , reeve , crawley justices , and bankes chief justice , nullo contradicente , that the plaintiff ought to have judgment , and that upon these differences . first , where the defendant is to do a single act only , and where he hath election of two things to do . secondly , the second difference stood upon this , that no notice is to be given , or tender made of a thing which lieth not in the power or proper conusance of the plaintiff , so as the difference stands where it is a thing which lies in the conusance of the plaintiff , and where not : and therefore where the award was that the defendant should pay to the plaintiff eight pound , or three pound and costs of suit , as should appear by a note under the attorneys hand of the plaintiff , it was resolved in that case , that although the attorney be in some respect as a servant to his master , yet to this purpose he is a meer stranger , and therefore the plaintiff was not bound to make any tender of that note , but the defendant ought to have gone to the plaintiffs attorney , and required a note of him of the costs of suit , so as he might have made his election : but they all agreed , that where it is a thing which lieth in the knowledge of the plaintiff , that there he ought to have made a tender , or given notice , but in this case it lieth not in the knowledge of the plaintiff , and he cannot compel the attorney to make it , wherefore it was resolved that the plaintiff should have judgment . . a man libelled for tithes in the ecclesiastical court , & in his libel he set forth , how that the tythes were set forth , but that the defendant did stop and hinder the plaintiff to carry them away any other way than through the defendants yard , and when he was carrying them that way , the defendant being an officer did attach them for an assessment to the poor , and did convert them to his own use , upon which a prohibition was prayed , because that the tythes being set forth an action of trespass lieth at the common law : but serjeant clarke was against the prohibition , because that the libel is grounded upon the statute of e. . cap. . which is , that if the parson , &c. be stopt or let in carrying his tythes , that the party so stopping or letting should pay the double value , to be recovered before the ecclesiastical judge . but notwithstanding that , it was resolved that a prohibition should issue , because he that will sue upon the statute ought to mention the statute , or to make his demand secundum formam statuti . but here the plaintiff doth not sue upon the statute , for he doth not mention it nor the double value as he ought ; for they all agreed , that he ought to ground his action upon the express clause of the statute for the double value , wherefore a prohibition was granted . . it was resolved upon the certificate of the pronotharies , viz. gulson , cory , and farmer , that the custom of the court was , that if a man sueth another for such a sum , or thing for which the plaintiff ought to have special bail , and doth not declare against him in three terms , that the defendant being brought to the bar by a habeas corpus , ought to be discharged upon an ordinary appearance , and that they said is the course and practice in the kings bench , and that was now resolved to be as a certain rule from thenceforth in this court by all the judges , viz. foster , reeve , crawley , and bankes chief justice . . it was said by justice reeve , that if a. being seised of an advowson , grant the next presentation to b. and b. makes a bond to a. to pay him twenty pounds when the church shall fall void , that that is simony ; and so he said it was adjudged in this court in pooles case : and the whole court did agree that it was simony ; for otherwise by this way the statute should be utterly defeated : and note , that it was said by serjeant rolls at the bar , that it had been often ●adjudged , that the obligor could not avoid such an obligaion without special averment . palme against hudde . . palme brought a quare impedit against hudde , and the case was thus : it was debated by serjeant godbold , the plaintiff brought a quare impedit against the defendant , the defendant shewed how the king was intitled by reason of simony , and that the king had presented the defendant , and that he was persona impersonata of the presentation of the king ; the plaintiff denied the simoniacal contract , upon which they were at issue , and it was found for the defendant , so as that judgment was given for the defendant . and the same plaintiff brought this second quare impedit against the same . defendant , who pleaded all the matter before and the judgment , but did not say that he was now persona impersonata , but that he was tunc persona impersonata , and that was said by the serjeant to be naught : for he said , that at the common law , no parson might plead to the title of the parsonage but only in the abatement of the wr●t , or such like pleas : s●e lib. entries , and . and rep foxes case : and he said , that that is a plea at the common law , and not upon the statut● of e. . for then he ought to have pleaded , that est persona impersonata , and not that fuit , and that to enable him to plead to the title of the patronage , according , to the statute , for he who will plead according to the statute ought to pursue it , or otherwise his plea is not good , & he cannot plead to the title of the patronage without shewing that he is persona impersonata : the books are clear rep. , . h. . , and . r. . incumbt . . h . dyer . & . and to say , that tunc fuit persona impersonata , is but an argumentative plea , that because he was then , so he is now , and such p●ea is not good , for it ought to be positive and not by way of argument , or illation . besides , it may be that he was persona impersonata , tunc , and not tunc , for he might resigne or be deprived after , or the like , and therefore it is a non sequitur that he was persona impersonata then , and therefore now , and it shall be intended rather that he is not persona impersonata nunc , for paroles font plea , and the plea of every man shall be taken strong against himself ; wherefore he concluded that the plea was not good . foster agreed that the parson cannot plead to the title of the patronage without shewing that he is persona-impersonata ; but the question here is , as he conceived , whether the plaintiff be not stopped by this recovery and judgment yet remaining in force to say the contrary . bankes chief justice : it is true , that generally the parson without shewing that he is persona impersonata , cannot plead to the title of the patronage . but whether the defendant cannot plead the record and judgment , yet in force against the plaintiff , without shewing that he is persona impersonata , that is the question here . note , it was the first time it was argued . harwel against burwel in a replevin in the kings bench. . the case was thus : a man acknowledged a statute to the plaintiff , and afterwards granted a rent-charge to the defendant , afterwards the statute is extended and safied and then the grantee of the rent distreins . and whether he might distrein without bringing a scire facias , was the question . and by serjeant rolls , he cannot distrein without a scire facias brought ▪ and he took it for a rule , that because the conusee came in by matter of record , he ought not to be put out or disturbed without matter of record , for if that should be suffered , it would be a great discouragement to debtees to take this manner of security for their debts : and the conusor cannot enter without bringing a scire facias ; and if the conusor himself cannot enter , it is a good argument à fortiori that the grantee of a rent cannot distrein without a scire facias ; and that the conusor himself cannot enter without bringing a scire facias , vid. h. . . rep. . fullwoods case . and the grantee of the rent is as well within the ground and rule before put as the conusor himself , and therefore he compared the case to the case in the rep. . that he who claims under another ought to shew the original conveyance . but he took a difference where the party comes in by act of law , and where by the act of the party ; he who comes in by act of law , shall not be put to his scire facias , for so he should be without remedy , and if that should be permitted , it should a be subtile way for the conusor to avoid the possession of the conusee , and then he himself to take benefit of it , and that should be a fine way to defeat the statute . besides , by this way if the statute should be satisfied by casual profit , or if the time should be expired and the statute satisfied by effluxion of time , if in that case the grantee should be permitted to distrein the beasts of the conusee for a great rent , perhaps before that the conusee by possibility might remove from the land , it would be a great disturbance to the conusee . besides , if a stranger enter upon the conusee , the conusee upon his regress may hold over : but not so in this case , where the grantee of the rent distreins , and that should be also a great prejudice to the conusee . but it was objected that the grantee of the rent could not have a scire facias , and therefore if he might not distrain , he should be without remedy ; to which he answered , that if it should be so , it is his own fault , for he might have provided for himself by way of covenant . but he conceived that he might have a scire facias ; for he said , that it is a judicial writ issuing out of the rolls , which might be framed and made according to the case of any man : and it is not enough to say , th●● there was never such a writ granted in the like case , but he ought to shew where it was ever denied : besides , it is not always necessary that he that shall have this writ should be party to privy to the record , as app●areth by these books , ass. scire facias . e. . scire facias . and e. . . br. scire facias . again , it is not necessary that the scir● facias should be either ad computandum , or ad rehabendum terram , as it was objected , for as i have said before , it may be framed according to the case of any man , and vary accordingly : wherefore he prayed judgment for the plaintiff : and note , that at this time justice heath seemed to incline for the plaintiff . thorne against tyler in a replevin . . the plaintiff shewed that the defendant took certain beasts of the plaintiff such a time and place , and detained them against gages and pledges , &c. the defendant as baily of the mannor of the lord barckley made conusance of the taking of the cattle ; and said , that long time before the taking of them , the lord barckley was seised in see of a mannor in gloucestershire , within which there were copy-hold-tenants time out of mind , demiseable for one , two , or three lives : that there was a custom within the same mannor , that if any copyhold-tenant did suffer his messuage to be ruin'd for want of repairing , or committed waste , & that is presented by the homage ; that such tenant so offending should be amerced , and that the lord had used time out of mind to distrein the beasts as well of the tenant as of the under-tenant of such custom●ry tenements , levant and couchant upon such customary tenements for such amercement , and further said , that one greening was tenant for life of a customary tenement within that mannor , and made a lease unto the plaintiff for one year , and that car. the homage did present that greening had suffered his barn , parcel of the customary tenements aforesaid , to fall for want of repair , for which he was amerced to ten shillings ; and that in iuly car. the defendant as bayly of the lord barckley did distrein the plaintiffs cattle , being under-tenant for the said amercement upon the said customary tenement , and so he made conusance and justified the taking of the beasts as bayly of the lord barckley : the plaintiff confessed that greening was tenant , and that he made a lease to the plaintiff for a year ; and further he confessed the want of repairing and presentment , and the amercement upon it , but he denied that there is any such custome : upon which they were at issue , and the jury found for the defendant that there was such a custom , and it was moved in arrest of judgment that the custom was not good , because it was unreasonable ; for here the tenant offended , and the under-tenant is punished for it , which is against all reason that one should offend and another should be punished for it . besides , the under-tenant here is a stranger , and the custom shall never extend to a stranger , and therefore the custom to punish a stranger who is not a tenant of the mannor is a void custom . further , it was said that the amercement properly falls upon the person , and therefore being personal it cannot be charged upon the under-tenant . but notwithstanding all these objections , it was resolved by all the justices upon solemn debate , that the custom was good , and therefore that the avowant should have judgment . justice mallet . custom si aliqua defalta fuerit in reparatione to amerce the tenant and to distrein averia sua , vel averia subtenentis levant and coucbant upon the customary tenement , is a good custom . i agree that a custom cannot extend to a stranger who is not within the mannor , and therewith agreeth eliz. dyer . b. pl. . davis rep. . a. & h. . and many other books ▪ but the matter 〈◊〉 is , whether the plaintiff be a stranger or not , and i conceive that he is no stranger but a good customary tenant , and he shall have any benefit or priviledge that a customary tenant shall have , although he holdeth but for one year , and by the same reason that he shall enjoy the priviledge of a customary tenant he shall undergo the charge ; for qui s●ntit commoduin sentire debe● & ●nus ; and by the general custom of england every copyholder may make a lease for one year , as is resolved in the rep. . ● . and it is good ; and if so , then the plaintiff here cometh in by custom , and is no stranger but a good customary tenant , and therefore the custom may well extend to him : as there is dominus pro tempore , so there is tenens pro tempore , and such is the plaintiff here : and he held , that the wife that ●ath her widows estate , according to the custom of the mannor , is a good customary tenant . a woman copyholder for life , where the custom is that the husband shall be tenant by the curtesie , dieth , i hold the husband in that case a good customary tenant . in gloucester where this land is , there is a custom that executors shall have the profits for a year , and i conceive them good customary tenants . besides , this under-tenant here is distrainable by the lord for the rents and services reserved by the lord , or otherwise by this way he might defeat the lord of his services . the custom was , that a woman should have her widows estate ; the copy-tenant made a lease for one year and died , and adjudged that the woman should have her widows estate as excrescent by title paramouns , the estate made for one year : see hab. rep. and as these the estate of the wife was derivative ; so here : and although it be not the intire copyhold estate , yet it is part of it , and a continuation of it , and is liable to every charge of the lord , rep. swaines case ; wherefore he concluded that the custom is good , and that the avowant ought to have judgment . justice heath : the custom is good both for the matter and form of it ▪ where it was objected , that for a personal injury done by one , the cattle of another cannot be dis●teined , i agree , that it is unjust that where alius peccat alius plectitur ; but our case differs from that rule , for this was by custom , for transit terra cum onere , he who shall have the land ought to undergo the charge . besides ▪ wheresoever a custom may have a good beginning , and ex certa & rationabili causa , it is a good custom , bracton lib. . cap. . but this might have a reasonable ground at the beginning , for here the punishment is a qualification of the law : for where by the law the copyhold-tenant is to forfeit his copyhold-tenement for waste , either voluntary or permissive , now this penalty is abridged and made more easie , and therefore is very reasonable , e. . . & e. . . custom , that if a tenant be indebted to the lord , that he may distrein his other tenants for it , is not good ; but if it were for rent , it should be good , because , it may be , the tenants at the first granted it to the lord , h. . . h. . . & h. . . custom to sell a distress is good , and yet it cannot be done but by act of parliament . and where it was objected that the amercement is personal , and therefore cannot extend to the plaintiff ; to that he answered , that it is not meerly personal , but by custom ( as aforesaid ) is now made a charge upon the land , and therefore not meerly personal . besides , if the custom in this case had been , that the plaintiff for waste should forfeit his copyhold-tenement , it had been reasonable à fortiori in this case that he shall be only amerced : wherefore he concluded , that the custom is good , and therefore that the avowant should have judgment . bramston chief justice : that the custom is good , and that he conceived to be clear . first , he conceived that the custom is reasonable as to the copy-tenant , for clearly by the common law , if he suffer , or do waste , he shall forfeit his copyhold , and therefore this custom is in mitigation of the penalty ; and therefore is reasonable , and that is not denied ; but the only doubt here is , whether the custom to distrein the under-tenant for an amercement layed upon the tenant be a good custom or not : and he conceived it is , for the custom which gives the distress knits it to the land , and therefore not meerly personal as it was objected . and if the custom had not extended to the under-tenant , he might have distreined him , for otherwise the lord by such devise as there is , viz. by the making of a lease for one year by the tenant should be defeated of his services , eliz. dyer . resolved , custom to seise the cattle of a stranger for a heriot is not good , because that thereby the property is altered . but custom that he may distrein the cattle of a stranger for a heriot is a good custom , because the distress is only as a pledge and means to gain the heriot : and in our case the land is charged with the distress , and therefore the cattle of any one which come under the charge may be distreined for it , and therefore he held clearly that the custom was good , and that the avowant should have judgment . justice barckley at this time was impeached by the parliament of high treason . . a man was indicted for murder in the county palatine of durham , and now brought a certiorare to remove the indictment into this court ; and it was argued by keeling at the bar , that br ' domini regis de certiorare non currit in com' palatinum . but the justices there upon the bench , viz. heath and bramston , seemed strongly to incline , that it might go to the county-palatine ; and they said , that there were many presidents in it ▪ and justice heath said , that although the king grant iura regalia , yet it shall not exclude the king himself ; and he said , their power is not independent , but is corrigible by this court , if they proceed erroneously ; and he said , that in this case the party was removed by habeas corpus ; and by the same reason that a habeas corpus might go thither , a certiorare might : for which cause it was awarded , that they return the writ of certiorare , and upon the return they would debate it . hillary º car ' in the common plea● . ●ayton against grange in a second deliverance . . john layton brought a second deliverance against anthony grange , and declared of taking of certain cattle in a place called nuns-field in swassam-bulbeck , and detainer or them against gages and pledges , &c. the defendant made conusance as baylift to thomas marsh , and said , that long time before the taking alledged , one thomas marsh the father of the plaintiff was seised of the mannor of michel-hall in swass●●-bulbeck aforesaid ▪ of which the land in which time 〈◊〉 of mind , &c. was parcel , and that one anthony cage and dorothy his wife , and thomas grange and thomasine 〈…〉 of the land in which , &c , as in the right of the sai● dorothy and thomasine their wives in de●esne as of s●e , and that they held the land in which , &c. as of his mannor of michel-hall , by soccage , viz. fealty ; and certain rent payable at certain days , and that the said thomas marsh was s●i●ed of the said services by the hands of the said anthony cage and dorothy his wife , thomas grange and thomasine his wife , as by the hands of his very tenants and he derived the tenancie to one sir anthony cage , and the seigniory to thomas marsh the son , by the death of the said thomas marsh the father , and because that fealty was not done by sir anthony cage , he as bayly of the said thomas marsh the son did justifie the taking of the said cattle ut ins●a feodu●● & dominium sue , &c. the plaintiff by protestation said , that non 〈◊〉 the lands aforesaid of the said thomas marsh , as of his mannor of michel-hall in swassa●●-bulbeck aforesaid by soccage , viz. fealty and rent , as aforesaid , and pro placito said , that the defendant took the cattle as aforesaid and detained them against gages and pledges , and then traversed , absque hoc , that the said thomas marsh the father was seised of the said services by the hands of the said anthony cage and dorothy his wife , and thomas grange and thomasine his wife , as by the hands of his very tenants : upon which the defendant did demur in law , and shewed for cause of demurrer , that the plaintiff had traversed a thing not traversable ; and if it were traversable , that it wanted form , and this term this case was debated by all the judges , and it was resolved by them all , that the traverse as it is taken , is not well taken . justice foster , that the traverse taken by the plaintiff is not well taken at the common law , the lord was bound to avow upon a person certain ; but now by the statute of h. . cap. . he may avow upon the land , and this avowry clearly is an avowry upon the statute , for it is infra feodum & dominium sua , &c. and so is the old entries . then the question here is , whether the plaintiff be privy or a stranger ; ●or i● he he a stranger , then clearly at the common law he may plead no plea , but out of his fee , or a plea which doth amount to so much as appeareth by the books , h. . . e. . , & . e. . avowry . and many other books as you may find them cited in the rep. . in the case of avowry , & here it doth not appear but that the plaintiff is a stranger , and therefore whether he be inabled by the statute of h. . to take this traverse or not , is the question : and i conceive that he is : true it is , as it was objected , that this statute was made for the advantage of the lord , but i conceive , as it shall enable the lord to avow upon the land , so it shall enable the tenant to discharge his possession , as if the avowry were upon the very tenant , and so is the institutes b. and so is brown and goldsmiths case in hobarts rep. . adjudged in the point , and the plaintiff here who is a stranger is in the same condition , as a stranger was at the common law , where the avowry was made upon the land for a rent-charge , in such case he might have pleaded any discharge although he were a meer stranger , and had nothing in the land , so may he now after the stat. of h. . then admitting that the plaintiff might take this traverse by the statute ; then the question is whether the plaintiff hath taken a sufficient traverse by the common law or not : for the statute saith , that the plaintiff in the replevin or second deliverance shall have the like pleas as at common law , and i conceive that this plea is not a good plea at the common law. and now i will consider whether if the plaintiff had been a very tenant , he might have pleaded this plea or not ; and i conceive that if this traverse had been taken by a very tenant , it had not been good . i agree the rep. bucknels case , that ne unque seisie of the services generally is no good plea , but ne unque scisie of part of the services is a good plea ; and so is e. . . & h. . and the reason that the first plea is not good , is because that thereby no remedy is left to the lord , neither by avowry , nor by writ of customs and services . and therefore the plea here is not good , because it is a traverse of the services generally . besides , here the traverse is not good , because that the plaintiff hath traversed the seism , and hath not admitted the tenure : and it is a rule in law , that no man may traverse the seism of services , without admitting a tenure ; and therewith agreeth e. . . e. . . & rep. bucknells case ; and then if the very tenant could not have taken this traverse , much less a stranger here . further , here the tenure was alledged to be by rent and fealty , and the avowry was for the fealty , and the plaintiff hath traversed the seism as well of the rent which is not in demand , as of the fealty , and therefore the traverse is not good . but it was objected , that seism of rent is seism of fealty , and therefore of necessity both ought to be traversed . i agree , that seism of rent is seism of fealty , but it is no actual seism of the fealty in point of payment , or to maintain an assise for it , as is . e. . . & e. . . and the distress here is for actual seism of fealty . every traverse ought to be adidem , as h. . . & rep. . but here the traverse is of the rent which is not in question , & therefore is not good in matter of form . wherefore he gave judgment for the avowant . justice reeve : the first thing here co●siderable is , whether this be a conusance at the common law , or upon the statute ; and i hold clearly that it is within the statute ; and for that see new entries & ▪ & h. . . and it is clear that the lord hath election either to avow upon the statute , or at the common law ; and that is warranted by institutes . and . rep. . b. . a. & . a. and then admitting , that it be an avowry upon the statute . the second point is , whether the plaintiff be inabled by the statute to take this traverse or not , for it is clear , that at the common law the plaintiff could not have this plea , for a stranger could not plead any thing , but hors d●●son fee , or a plea which did amount to as much . i agree the books of br. avowry . & . & rep. . & h. . . & ● . & br. avowry . & instit. . which are against me ; yet i conceive und●r favour , that notwithstanding any thing that hath been said , that the plaintiff is not enabled by the statute to take this traverse ; and i ground my opinion upon the reason at common law , as also upon the stat●●e ; the first reason at the common law , i ground upon the rule in law , res inter alios act● , alteri nocere non debet , it is not reason that he who is a stranger shall take upon himself to plead to the title of the tenure , with which he hath nothing to do in prejudice of the very tenant , and this reason is given by the books of h. & e. . . my second reason is grounded upon the maxime in law , which is , that in pleading every man ought to plead that which is pertinent for him and his case . and that 's the reason that the incumbent at the common law cannot plead to the right of the patronage wherein he hath nothing , but the patrou shall plead it , as appeareth by the rep. . and many other books there cited ; and these are my reasons at the common law , wherefore the plaintiff being a stranger cannot plead this plea. secondly , i ground my self upon the purvieu of the statute to prove that the plaintiff cannot plead this plea , the words of which are , that the plaintiffs shall have such pleas and aid-prayers as at the common law : and if the plaintiff could have pleaded this plea by the statute , the statute would not have enacted that there should be the like aid-prayers as at the common law , for if the plaintiff might plead this plea , then there need not any aid-prayer ; and as at the common law no aid-prayer was grantable of a stranger to the avowry , so neither is it so now ; and to prove that he cited h. . . eliz. new entries . & h. . . against the institutes , . a. besides , the statute gives the like pleas as at the common law , and therefore no new pleas , and that caused me to give those reasons before at the common law : and if this should be suffered , every wrangler by putting in of his cattle , should put the lord to shew his title , which would be a great prejudice to him . the statute of e. . c. . enables the possessor to plead to the title of the patronage , and that it is not till induction if it be against a common person , which he ought to shew , otherwise he is not inabled to plead to the title , as it is in the rep. . a & dyer fol. . b. but note , there the statute enables him to plead to the title ; which is not so in our case , the general words of the statute of west . . have always received construction at the common law , as appeareth by e. . . . e. . . & rep. bucknells case , and rep. , . there you may see many cases cited which have the like words of reference to the common law , as the statute in that case , and there always they have received construction by the common law : the authorities cited before against me , are not against me , for they say that the plaintiff after this statute may have any answer which is sufficient , so clearly by these authorities the answer ought to be sufficient , and that is the question in our case , whether the answer be sufficient or no , which as i have argued , it is not ; because the plaintiff is not enabled to take this traverse by the common law ; and the statute doth not give any other plea than at the common law. h. . . is express in the point , that the plaintiff being a stranger , is not enabled by this statute to meddle with the tenure ; wherefore i conceive that the plaintiff is not a person sufficient within the statute to take this traverse without taking some estate upon him , as in see for life or years , &c. but for the latter point , admitting that the plaintiff were enabled by the statute to take this traverse ; yet i hold clearly , that as this case is , he hath not pursued the form of the common law in the taking of it : and i agree the rule that the plantiff cannot traverse the seism without admitting of a tenure , and therefore the traverse here is not good , because he takes all the tenure by protestation . besides , i agree that traverse of seism generally is not good , rep. bucknells case ; and i agree that traverse of seism per manus is not good without confessing the tenure for part : and here he takes all the tenure by protestation , and therefore not good , e. . fitz. avowry . is express in the point that the traverse is not good . wherefore i conclude that judgment ought to be given for the avowant . justice crawley , that judgment ought to be given for the avowant ; he held clearly that the avowry is within the statute , and that being within the statute the plaintiff is enabled to take this traverse , and that he grounded upon the books of . h. . br. avowry . . h. . . rep. . and hobarts rep. . brown and goldsmiths case . then he being inabled by this statute to take this plea as a very tenant , the question is , whether the traverse here per manus be good or not , and he held not ; but he ought to have traversed the tenure as this case is : that the traverse of the seism per manus generally is not good , i ground me upon the rep. bucknells case . a. and i agree the third rule there put , that ne unque seisie per manus is a good plea , but that must be intended where the plaintiff confesseth part of the tenure , which he hath not done in this case , as it appeareth by the fourth rule there taken , which is an exception out of the precedent rule , upon which i ground my opinion , and therefore the traverse here is not good . besides , homage and fealty are not within the statute of limitations , and therefore not traversable : and if it should be permitted , the rule in bevills case . rep. , . and com. . woodlands case , which resolve that they are not traversable , should be by this means quite defeated . further , in this case the fealty only is in demand , and the plaintiff hath traversed the seism of the rent as well as of the fealty , which is not good . i agree the book in the rep. bucknells case fol. . that seism is not traversable but only for that for which the avowry is made , if not that seism be alledged of a superior service ( for which the avowry is not ) which by the law is seism of the inferiour service , with which agrees h. . . & e. . . but in our case seism is not alledged of a superiour service , for which the avowry is not made but of an inferiour , viz. of a rent which is inferiour to fealty ( as the books are of e. . . avowry . and e. . . ) and which of right ought to be so , unless a man esteem and value his money above his conscience ; and therefore the traverse of the rent which is inferior service and not in demand , is not good . besides , you cannot traverse the seism of the fealty without the traverse of the seism of the rent , because the seism of rent is the seism of fealty , and the rent is not here in demand , and therefore not traversable , and therefore you ought to have traversed the tenure ; for although it be said , that rent which is annual is inferiour to all other services , rep. . a. yet it is resolved that the seism of rent is seism of all other services : further , i conceive that if you avow for one thing , you need not to alledge seism of other services . e. . . & . seemeth to cross the other authorities before cited ; but i believe the latter authorities . wherefore i conclude that judgment ought to be given for the avowant . bankes chief justice : i conceive that it is a plain avowry upon the statute , and therefore i need not to argue it ; here are two questions only . the first , whether this plaintiff , who is a stranger , be enabled by the statute of h. . to plead in bar of this conusance or not . secondly , admitting that he be inabled by the statute to plead this plea , whether the traverse be here wel● taken or not . to the first , i hold that he is inabled by the statute to take this traverse : but for the second , i hold clearly , that the traverse is not well taken : here the plaintiff and defendant are both strangers , so as here is neither the very lord nor the very tenant . and now i will consider what the common law was before the statute , it is clear that by the common law a stranger might plead nothing in discharge of the tenancie , nor could plead a release , as the books are e. . avowry . and e. . avowry . he could not plead rien arrere , or levied by distress , he could plead no plea but hors de son fee , or a plea which did amount to so much . i confess that the book of e. . . b. is that the tenant in a replevin could not plead hors de son fee , but the book of h . . is against it . true it is , that in some special case , as where there is covin or collusion in the avowant , there the tenant shall set forth the special matter , as it is in rep. . b. now there are two reasons given in our books ; wherefore the plaintiff in a replevin being a stranger , could not plead in bar of the avowry . the first is , that the seignory being in question , it is matter of privity betwixt the lord and the tenant . the second , that the law doth allow unto every man his proper plea , which is proper to his case , and that he ought to plead and no other , as appeareth by the books , ass. p. . h. . . . h. . . h. . . lit. . h. . . & e. . . now seeing that the plaintiff being a stranger could not plead this plea at the common law , the question now is , whether he be inabled by the statute to take this plea or not ; the words of the statute are , that the plaintiff and defendant shall have the like pleas and aid-prayer as at the common law ; and therefore it was objected that it doth not give any new plea ; true it is , that by the express words thereof that it gives not any new plea , but yet i conceive that any stranger is enabled to plead any plea in discharge of the conusance by the equity of this statute ; at the common law avowry was to be made upon the person , and therefore there was no reason that the plaintiff being a stranger should plead any thing in bar of the avowry of conusance , but now the statute enables the lord to avow upon the land , not naming any person certain , it is but justice and equity that the plaintiff should be inabled to plead any thing in discharge of it . i compare this case to the case in the rep. fol. . harberts case , where it is resolved that s●ossce of a conusor of a statute being only charged , may draw the other in to be equally charged ; and if execution be sued against him only , that he may discharge himself by audita querela for so much . e. . . a. there the defendant avowed for a rent-charge , the plaintiff shewed how that one e. leased the land to him and prayed in aid of him , and resolved that he should not have aid because the avowry is for rent-charge , so as th● plaintiff might plead any plea that he would in disch●●ge of the land ; now by the same reason , where the lands of the plaintiff were charged with a rent-charge , he might at the common law have pleaded any thing in discharge of his land ; by the same reason where there is an avowry upon the land according to the statute , the land being charged , the plaintiff may plead any thing in discharge thereof ; and this is my first reason . my second reason is , that this law hath been construed be equity , for the benefit of the lord , and therefore it shall be construed by equity for the benefit of the tenant also , instit. . b. my third reason is , although the plaintiff be a stranger and claimeth no interest in the land , yet for the saving of his goods he may justifie this plea ; i may plead an assault upon another who endeavoreth to take away my goods , and i may justifie maintenance where it is in defence of my interest , as it appeareth in h. . . and h. . . fourthly and lastly , upon the authorities in law after the making of this statute , i conceive that the plaintiff may well take the plea , h. . . the plaintiff prayed in aid of a stranger and had it , which could not be ●t the common law , as appeareth by h. . and h. . . and many other books ; and for books in the point , h. . petty brooke . institutes . rep. . & hobarts rep . , . brown and goldsmiths case : wherefore i hold that the plaintiff may by the equity of the statute plead this plea. but it was objected by my brother reeve , that by the statute of e . c. . it is enacted that the possessor shall plead in bar , and therefore the incumbent before induction cannot plead in bar , as it is resolved in h. dyer . . and e. . incumbt . . and upon the same reason he conceived it should be hard in our case , that the plaintiff who is but a stranger , not taking upon him any estate , should be admitted to plead this plea ; especially the statute in this case saying , that the plaintiff shall have the like pleas as at the common law : to that i answer , that by the statute of e. . it is enacted that the possessor shall plead in bar , and therefore clearly there he ought to shew that he is possessor : otherwise he cannot plead in bar , and therefore not like to our case : and the novel entries , . doth not make against it , for there it was not upon the statute , and h. . . is express that the plaintiff being a stranger is enabled by the statute of h. . to take this plea : wherefore i conclude this point , that the plaintiff is inabled by the statute to plead any thing in bar of the avowry : but for the second point , i hold clearly that the traverse as it is here taken is not well taken , it is only an equitable construction that the plaintiff shall plead this plea , as i have argued before , and therefore he ought to pursue the form of the common law , in the form of his traverse , which he hath not here done , and therefore the traverse is not good , and where the seism is not material , there it is not traversable , and in this case the seisim of the fealty is not material , for it is out of the statute of limitations , and therefore not traversable : and so is it in the case of a gift in tail , and grant of a rent-charge , it is not traversable , because that the seism is not material , e. . . com. . . rep. . fosters case . secondly , where the seigniory is not in question , there no traverse of seism , so it is in case of writ of escheat , cessavit rescous , &c. and therewith agree the books of h. . . . h. . . & . rep. . a. bevills case . thirdly , where the lord and tenant differ in the services , there no traverse of the seism but of the tenure , but where they agree in the services , there the seism may be traversed , and therewith agree the books of e. . . & . e. . . ass. p. . & rep. . bucknells case ; and therefore the traverse here is not good . first , because it is a general traverse of the seism per manus , the tenure not being admitted as it ought to be by the fourth rule in bucknells case , and therewith agreeth h. . avowry . besides , it is a rule in law , that a man shall never traverse the seism of services , without admitting of a tenure , and in this case he took the tenure by protestation , and therefore the traverse here is not good , and therewith agre●● e. . avowry . further , the traverse here is not good , because he hath traversed a thing not in demand , which is the rent , for he ought to have traversed the seism of the fealty only for which the distress was taken , and not the rent as here he hath done , and therewith agreeth rep. . a. and h. . . but as this case is , he could not traverse the feal●y only because that seism of rent is seism of fealty , and therewith agreeth e. . avowry . e. . avowry . & rep. . b. bevills case , and therefore he ought to traverse the tenure . true it is , as it was objected by my brother foster , that seism of rent is not an actual seism of fealty as to have an assise , but is a sufficient seism as to avow . and we are here in case of an avowry , and therewith agreeth the rep. . a. bevills case : wherefore i conclude that judgment ought to be given for the avowant . here note , that it was resolved by all the judges of the common pleas , that a traverse of seism per manus generally without admitting of a tenure is not good , and therefore see rep. . b. & . a. which seemeth to be contrary . hill. º car , in the kings bench. hayward against duncombe and foster . . the case was thus : the plaintiff here being seised of a mannor with an advowson appendant , granted the next avoidance to i. s. and afterwards bargained and sold the mannor with the advowson to the defendants d. and f. and a third person , and covenanted with them that the land is free from all incumbrances . afterwards the third person released to the defendants , who brought a writ of covenant in the common pleas , and there judgment was given that the action would lie . whereupon hayward brought a writ of error in this court. the point shortly is this , whether the writ of covenant brought by the defendants without the third person who released were good or not ; and that rests only upon this , whether this action of covenant to which they were all intitled before the release , might be transferred to the other defendants only by the release or not . and it was objected , that it could not , because it is a thing in action , and a thing vested which cannot be transferred over to the other two only by the release ; but that all ought to joyn in the action of covenant notwithstanding . rolls contrary , because that after this release it is now all one as if the bargain and sale had been made to those two only , and now in an action brought against them two , they may plead a seoffment made to them only , without naming of the third who released , and so it is resolved in h. . , & , & rep. fol. . a. besides this covenant here is a real covenant , and shall go to assignees , as it is resolved in rep. spencers case ; and here is as violent relation as if the seoffment had been made to them two only . it was objected by justice heath , what if the other died ? it was answered , perhaps it shall there survive , because that it is an act in law , and the law may transfer that which the act of the party cannot , because that fortior est dispositio legis quam hominis , &c. booremans case . . booreman was a barrister of one of the temples , and was expelled the house , and his chamber seised for non-payment of his commons , whereupon he by new digate prayed his writ of restitution , and brought the writ in court ready framed ; which was directed to the benchers of the said society : but it was denied by the court , because there is none in the inns of court to whom the writ can be directed , because it is no body corporate , but only a voluntary society , and submission to government ; and they were angry with him for it , that he had waived the ancient and usual way of redress for any grievance in the inns of court , which was by appealing to the judges , and would have him do so now . bambridge against vvhitton and his wife . . in an ej●ctione firme upon not guilty pleaded , a special verdict was ●ound , & the case upon the special verdict this ; a copyhold tenant in fee doth surrender into the hands of two tenants , unto the use of i. w. immediately after his death , and whether it be a good surrender or no , was the question . harris : that the surrender is void . estates of copyholds ought to be directed by the rule of law , as is said in rep. . b. rep. . & rep. . and as in a grant , a grant to one in ventre sa mier is void , so also in a will or devise , and as it is resolved in dyer . p. . so it hath been adjudged that the surrender to the use of an infant in ventre sa mier is void : and as at common law a freehold cannot begin in futuro , so neither a copyhold , for so the surrenderer should have a particular estate in him without a donor or lessor , which by the rule of law cannot be : and he took a difference betwixt a d●vise by will , & a grant executed ; in a devise it may be good , but not in a grant executed : and here he took a difference where the grant is by one intire clause or sentence , and where it is by several clauses , e. . taile . dyer . p. . com. . b. rep. . dowties case , and rep. doddingtons case . for instance , i will put only the case in dyer and the comment . a termor grants his term habendum after his death , there the habendum only is void , and the grant good ; but if he grant his term after his death , there the whole grant is void , because it is but one sentence : so i say in our case , because it is but one clause , the whole grant is void . another difference is , where the distinct clause is repugnant and where not ; where it is repugnant there it is void and the grant good , quia utile per inutile non vitiatur : but in our case , as i have said before it is one intire sentence , m. . or iac. in this court , rot. . sympson and southwells case , the very case with our case . there was a surrender of a copy tenant to the use of an infant in ventre sa mier after the death of the surrenderor , and there it was resolved by all the judges except dodderidge that the surrender was void , first , because it was to the use of an infant in ventre sa mier , and secondly , because it was to begin in futuro , which is contrary to the rule in law ; and copy-tenants as it was there said , ought to be guided by the rules of law : but dodderidge doubted of it , and he agreed the case at common law , that a freehold could not commence in futuro , but he doubted of a copyhold ; and he put the case of surrender to the use of a will ; but he said , that judgment was afterwards given by coke chief justice in the name of all the other judges that the surrender was void , and therefore quod querens nihil capiat per billam , wherefore he concluded that the surrender was void , and prayed the judgment of the court. langhams case . . langham a citizen and freeman of london was committed to newgate by the court of aldermen , upon which he prayed a habeas corpus , which was granted , upon which return was mane , first , it is set forth by the return , that london is an ancient city and incorporate by the name of mayor , comminalty and citizens , and that every freeman of the city ought to be sworn , and that a court of record had been held time out of mind , &c. before the mayor and aldermen . and that there is a custom , that if any freeman be elected alderman ; that he ought to take an oath cujus tenor sequitur in haec verba , viz. you shall well serve the king in such a ward in the office of alderman of which you are elected , and you shall well intreat : the people to keep the peace and the laws and priviledges within and without the city : you shall well observe and duly you shall come to the court of orphans and hustings if you be not hindred by command of the king , or any other lawful cause : you shall give good counsel to the mayor : you shall not sell bread , ale , wine , or fish by retail , &c. then is set forth a custome , that if any person be chosen alderman , he shall be called to the court , and the oath tendred to him ; and if he refuse to take it , then he shall be committed , until he take the oath . then is set forth , that by the statute of r. . all the customs of the city of london are confirmed . and lastly , is set forth that the of ian. langham being a freeman of london , and having taken the oath of a freeman was debito modo electus alderman of portsoken-ward , and being habilis & idoneus was called the first of february to the court of aldermen , and the oath tendred to him , and that he refused to be sworn in contemptum curiae , & contra confuetudines , &c. wherefore according to the custom aforesaid , he was committed by the court of aldermen to newgate , until he should take the oath , & haec fuit causa &c. to this retorn many exceptions were taken . maynard : the retorn is insufficient for matter and form ; for form it is insufficient , for the debito modo electus , without shewing by whom and how , is too general : then it is insufficient for the matter , for he is imprisoned generally , and not until he takes the oath , which utterly takes away the liberty of the subject , for by this means he may be imprisoned for ever . besides , here is no notice given to him that he was chosen alderman , but they elect him , and then tender him the oath , without telling him that he was chosen alderman , and therefore the retorn not good , for it ought to be certain to every intent . further , the oath is naught and unreasonable , for he ought to forswear his trade , for if he sell bread , ale , wine , or fish before , now he must swear that he shall never sell them by retail after , which is hard and unreasonable , for perhaps he may be impoverished after , and so necessitated to use his trade , or otherwise perish ; wherefore for these reasons he conceived that the retorn was insufficient . glynn upon the same side , that the retorn is insufficient , and he stood upon the same exceptions before , and he conceived , that notice ought to be given to him that he was chosen alderman , for this reason , because of the penalty which he incurs , which is imprisonment ; and he compared it to the cases in the rep. . b. & rep. . that the feoff●e of land or a bargain of a reversion by deed indented and inrolled shall not take advantage of a condition for not payment of rent reserved upon a lease upon a demand by them without notice given to the lessee for the penalty which insues of forfeiture of his term. so in our case , he shall not incur the penalty of imprisonment for refusing to be sworn , without notice given him that he 〈…〉 chosen alderman . he took another exception to the oath , because he is to swear , that he shall observe all laws and customs of the said city generally , which is not good ; for that which was lawful before , p●radventure will not be lawful now ; for some customs which were lawful in the time of r. . are now superstitious , and therefore are not to be kept . further , it is to keep all the customs within and without the city , which is impossible to do . wherefore for these reasons he conceived the retorn not to be good , and prayed that the prisoner might be discharged . saint-iohn sollicitor of the same side . the custom to imprison is not good . besides , here the imprisonment is general , so that he may be imprisoned for ever , which is not good ; and the statute confirms no customs but such as are good customs : i agree that a custom for a court of record to fine , and for want of payment to imprison may be good , because the custom goes only to fine and not to imprisonment ; the case of h. . . of the custom of london for a constable to enter a house and arrest a priest , and to imprison him for incontinencie comes not to our case , for that is for the keeping of the peace , which concerns the commonwealth , as it is said in the book , and therefore may be good : but it is not so in our case . a corporation makes an ordinance , and injoyns the observance of it under pain of imprisonment , it hath been adjudged that the ordinance is against the statute of magna charta , that nullus liber homo imprisonetur , &c. and therefore naught : and that is the rep. a. clarkes case , and therewith agrees the case of the city of london , rep. . b. mich. & eliz. marshalls case in harpers reports , there a habeas corpus was directed to the mayor of exeter , who returned a custom there that none but a freeman should set up a shop there , and if any other did , that he should be imprisoned , and it was adjudged no good custom , mich. e. . in the common pleas , rot. . upon a habeas corpus the custom of cambridge was retorned , which was that the vice-chancellor might imprison a scholar taken in a suspicious place , i conceive the same no good custom , but it is not resolved . besides , i conceive the return here is insufficient , because that no notice was given to the party that he was chosen alderman , which i conceive ought to have been for the great penalty which follows , wherefore he prayed that the prisoner might be discharged . white of the same side ; the retorn is not good for want of notice ; and he said , that it doth not appear that he was present at the election , and no other notice appeareth by the retorn ; and he said , that the tender of the oath did not imply notice : further he said , that the oath is not good , because he is to abjure his trade . besides , it is said in the retorn that the custom is , that si aliquis liber homo be elected alderman , &c. and doth not say habilis & idoneus , as it ought to be , and therefore no good . true it is , that it is averred in the retorn that he was habilis & idoneus , but it is not alledged to be part of the custom , and therefore that doth not help it , wherefore he prayed that the prisoner might be discharged . gardiner , recorder for the city , that the retorn is sufficient ; and first for the debito modo electus , where it was objected that the same was too general ; to that he answered , that no traverse can be taken upon it , and therefore it is sufficient , for there is not such certainty required in a retorn upon a habeas corpus as in pleading , as it is resolved in the case of the city of london , rep. . b. . a. and according to that it is resolved in h. . a. where it is said , that if the cause in it self be sufficient upon the retorn , it sufficeth although it be false ; and although there be not so precise certainty in it , and there it is resolved that the party cannot take issue upon the retorn , and yet there is no prejudice by it , for if it be false you may have a writ of false imprisonment , and therewith agrees rep. . a. h. iames baggs case and anne bedingfields case , rep. . whereupon a ne unque accouple in legal matrimony pleaded , the bishop certified quod infra nominat ' e. & a. legitimo matrimonio copulati fuerunt , to which certificate ( saith the book ) being brief and direct in the point ; no exception was ever taken ; and if a retorn upon a haleas corpus should have all circumstances , it would be so long and perplexing , that there would be no end of it : and he conceived the retorn sufficient notwithstanding that objection . now for the exception that the plaintiff had not notice of his election to be alderman ; to that he answered , that it appeareth clearly that he had notice , for it app●a●reth that the same day that he was elected , he was called to take the oath , and that was tendred to him , and he refused to be sworn , which certainly implies , that he had notice . for the exception that the oath is unreasonable , because he was to abjure his trade , which is in prejudice of the common-wealth , from the using of which no man can bind himself , much less abjure against it : to that he answered , that notwithstanding that the oath is lawful , and you forswear no more than the law doth prohibit you , for it doth not extend to all trades , but only to such as sell bread , ale , wine and fish ; and it is against law and reason , that he who hath the jurisdiction of bread , ale , &c. and may punish the misusage of it , that he should exercise the same trade himself ; wherefore he conceived that notwithstanding that exception the retorn is sufficient ▪ for the objection to the oath that he ought to swear that , he will keep all the priviledges of the city , whereas in truth there are many priviledges , which are now unlawful , although that before they were lawful , and therefore , the same ought not to be kept ; to that he answered , that the oath is good notwithstanding that objection , for i● ought to be intended that he shall keep all priviledges and customs reasonable which agree with the times in which we live , and not such as are superstitious and unreasonable . for the objection , that the custom is unreasonable , because it trencheth much upon the liberty of the subject , and against the statute of magna charta that the body of a freeman should be imprisoned , and the rather because here the imprisonment is general , and he may be imprisoned for ever : to that it was answered , that the city hath customs as unreasonable as in this case , as the custom in l. e. . . h. . . & h. . . that the creditor may arrest the debtor before the day of payment to give better security , and that is altogether against the rule of law. besides they have a custom which you shall find in h. . . and h●● . . that a constable upon suspition of incontinencie may enter the house of a stranger and arrest the body of the offender and commit him to prison , and that is a good custom , and yet it is against the law , & trencheth also upon the liberty of the subject . besides , they have a custom , that no person being not free of the city shall keep shop there , and that is adjudged a good custom , although it be to restrain trading , which is against the rule of the law also , rep. . the case of the city of london . and for the objection that it is unreasonable , because that the imprisonment is general : to that he said , it was a good objection if it were true , but that is mistaken ; for the retorn is expresly that he shall be imprisoned until he hath taken the oath , which is not general , for if he take the oath he shall be discharged ; and here he said that this government by aldermen in this city is one of the most ancient governments in the kingdom , beyond time of memory , and is a government which of necessity ought to he supported , or otherwise the city would immediately be brought to ruine , for we cannot hold a court without thirteen aldermen , which ought to have care of the orphans , and make laws for the well government of the city , and that is of great consequence to all the kingdom , and concerns the government of it ; and if this city be well governed , the whole kingdom will fare the better , and at this time we want many aldermen , and if these shall escape , by the same reason others will do so , and so the government utterly should fail . and where it was objected that it is usual to make them to take the oath , and accept a fine of them after : to that he said , that they would not do so now in this case ; for he said , that the party chosen is an able man , and a man whom they respect , and not his money : and therefore he said that the custom to imprison him for refusing is more reasonable than if the custom were to fine him ; for he said , that that custom is the most reasonable custom , which is most fit for the attaining of its end ; and he said , that imprisonment is most apt for the obtaining the end : for when we accept a fine , there is no end of it , for he may be chosen after ; and how can the government be supported which is the end of the election if all should be fined , wherefore the custom to imprison is more reasonable , than if the custom had been to fine ; because it is more apt to attain the end ; which is to maintain the government : it is said in ass. p. br. imprisonment . that it was resolved ma. in parliament , that imprisonment almost in all cases is but to detain him untill he makes a fine , and if he tender that to be discharged . to that he said , that the same ought to be understood , where a fine is imposed , but we do not intend to accept of a fine . further he said , that there is a judgment in the point , and that is the statute of iac. cap. . which injoyns an oath for recusants to take , and for refusal that they shall be committed until , &c. here he said that an act of parliament hath done it in the like case , and therefore he conceived the custom reasonable : and then he cited many presidents of commitment in this very case . h. . iohn gidney was dealt with in the same manner , e. . charles faman was imprisoned , h. . thomas white , iac. sir thomas middleton , all which were imprisoned for refusing to take the oath . and lastly , he cited one iac. and that was sir william bonds case , who was imprisoned by the court of aldermen for the same cause , and it came judicially in question ; and he said , that upon solemn debate it was resolved , that he should be remanded ; wherefore he concluded that the commitment being by a court of record , and that for a contempt against the court , and that for not observing of the customs of the city which is against the oath of a freeman , and which are confirmed by act of parliament , that the commitment is good and lawful , and therefore prayed that the prisoner might be remanded . and now this term it was resolved by the judges upon solemn debate , that the retorn notwithstanding any of the said exceptions was sufficient . justice mallet : the retorn is sufficient in matter and form , but for the matter of it , i shall not ground my self upon the custom , but upon part of the record , which is upon the contempt , for although i agree that consuetudo loci is of great regard , yet i conceive it is not strong enough to take away the liberty of a freeman by imprisonment . power to imprison the body of a freeman cannot be gained by prescription or grant ; and a grant is the ground of a prescription , and therefore if it be not good in a grant , not in a prescription : and i conceive that it is the common law only , or consent to an act of parliament , that shall subject the body of a freeman to imprisonment ; and it is resolved in the rep. . acc . in clarkes case , and agreed in rep. . that a constitution cannot be made by a corporation , who have power to make by-laws upon pain of imprisonment ; because it is against the statute of magna charta ; wherefore i conceive the power to imprison the body of a freeman cannot be gained by custom : but although it cannot be gained by custom , yet qui non transeunt per se , transeunt per aliud , it will pass as a thing incident to a court of record ; and therefore although i hold that the custom to imprison is not good , yet i hold that the imprisonment here by a court of record for a contempt made unto it , as appeareth by the retorn here it was , is good ; for in the conclusion of the retorn it saith , that he refused in contemptum curiae , &c. and that it is incident to a court of record to imprison , rep. . b. it is there resolved , that for any contempt done to a court of record the judges may impose a fine ; and rep. . b. it was resolved , that to every fine , imprisonment is incident . further , i conceive , that by the same reason that a court of record may imprison for a fine , they may imprison for a contempt , and in rep. . it is said , that to imprison doth belong only to courts of record : but which is in the point , it is resolved , . b. in doctor bonhams case , that it is incident to every court of record , to imprison for a contempt done to the court : and he said , that if a court of record should not have such a coercive power , they should be in effect no court. wherefore he conceived that the refusing to take the oath being a contempt , and that to a court of record , as it appeareth by the retorn , that they may lawfully commit him for this contempt . for the objection that the debito modo electus , without shewing how , is too general : to that he answered , that it is only matter of inducement , and there is no necessity to shew all matter of inducement . for the objection that he had not notice of the election : to that he answered , that here is good notice , for by the retorn it appeareth , that according to the custom after he was elected , he was called to the court , and the oath tendred to him , and he refused , which without doubt implies notice , & quod constat clare non debet verificare ; & as after appearance , all exceptions to process are taken away , as the books of e. . . & h. . , & . and many other books are , so i say in this case , after appearance , you shall never say that you had not notice , for by your appearance you admit it and the process good . for the objection to the oath , that it is not good , because it makes a man abjure his trade , which is against law and reason : to that i answer , that the aldermen are intrusted with the assize of bread and ale , and so with wine and fish , and therefore as it is unreasonable , so it is against the law , that during his office he should use the trade of which he hath jurisdiction and power to regulate , and to punish the misdemeanors of it ; and therefore it is enacted by the statute of e. . cap. . that no officer of a city or borough shall sell wine or victuals during his office. it is true , that this statute is repealed by the statute of h. . cap. . but there is a proviso in the statute that it extend not to london , so as the statute of e. . is in force still as unto london . then the oath makes him to abjure no more than the law forbids him to do , and which to do by him were unlawful , wherefore that exception is not good . for the exception that the imprisonment is general ; to that i answer , that it is mistaken , for it is only until he take the oath , and therefore the retorn is good notwithstanding that exception also : now the end of imprisonment being obedience , and the party here not obeying but refusing to take the oath , for which he is committed ; for my part , i conclude that he be remanded to prison . justice heath : that the retorn is good in matter and form ; and i ground my self upon the custom , for i conceive that it is a good custom , because that the ground of it is good and reasonable , which is the government of the city , for that totally depends upon the custom ; and i hold that the refusing to take the oath only is no sufficient cause of imprisonment ; but as it is an introduction to the support of government , by keeping of the customs and priviledges of the city , which every one by the oath of a freeman is bound to keep ; and this custom is not against the statute of magna charta , h. . cap. . for that saith that no freeman shall be taken and imprisoned , &c. but per legem terrae : now consuetudo loci est lex terrae , for in the statute of h. . cap. . there the law and custom of the realm are joyned together as synonyma , words of the same intent . for the objection , that the custom is not that they who shall be chosen aldermen , should be idonei & habiles , but it is only averred in the retorn , that langham here chosen to be alderman is idoneus & habilis : to that i say , that we are to judge upon the retorn as it is before us , and if upon the whole matter there appeareth sufficient matter for us to adjudge the commitment lawful , be it true or false we ought to judge according to it ; and if the retorn be false , you have your remedy by way of action upon the case ; and in this case it is expresly averred that the party chosen is idoneus & habilis , and it lies not in your power or in ours to gain say it , wherefore i conceive that exception worth nothing . i agree that the statute doth not confirm ill and unreasonable customs , but here i say ( as before ) that this custom hath a good and lawful foundation , and therefore it may be well confirmed ; and the oath although it be in general terms , yet it ought to be taken , that he do keep and observe such reasonable and lawful priviledges and no other . for the notice , i say , that it is manifest , that he had notice ; which he conceived would be good evidence to a jury , and that upon such evidence they would find for the plaintiff ; and for the debito modo electus , he conceived it is good enough , because that in the retorn upon a habeas corpús such precise certainty is not required as in pleading : and for the imprisonment it is not in general , and so may happen to be perpetual , as was objected ; but it is until he take the oath , wherefore upon the whole matter i conceive the retorn is sufficient , and that the prisoner ought to be remanded . bramston chief justice : the custom is good , and none of the exceptions to the retorn good , and therefore the prisoner ought to be remanded . the question upon the custom is only whether this custom , as it is here set forth by the retorn , to imprison the body of a freeman be good or not ; and as i have said before , i hold it to be a good custom , and that upon this difference , that a custom generally to imprison the body of a freeman is not a good custom . but a custom ( as it is here ) for a court of record to imprison the body of a man who is chosen a great officer for refusing to take the office upon him without which the government cannot subsist , is a good custom : besides , here being a contempt refusing to take the oath , the court may imprison the body for it , without any custom to help it , for it is incident to a court of record to imprison . i agree the case which was objected by master sollicitor of e. . where the custom of cambridge is , that the vice-chancellor may imprison a scholar taken in a suspitious place , that is no good custom , for it no way concerns the supportation of government or the commonwealth , and they may punish him another way , which may be good and as effectual as imprisonment : but not so in our case , for if in this time in which there are many aldermen wanting , all should be fined , what will become of the government ? further , i agree that the custom to imprison for forein buying and selling is no good custom ; upon the difference before taken : all great officers have a proper oath belonging to them , which is very needful for the greater ingagement of men in the due execution of their offices , which so much concerns the publike ; and if they refuse to take it , they are punishable for it ; and this place in which master langham is chosen alderman is the most great place of government in the realm , and of greatest consequence to the whole kingdom , and therefore if it should not be supplied with aldermen , who is it who doth not see the great inconvenience which would follow ? and therefore i hold that the custom to imprison until he take the oath , and so by consequence the office upon him ( for refusing of the oath is refusing of the office ) is a good custom ; now for the oath , it is the usual oath which hath been taken time out of mind , &c. and it is reasonable and well penned . for the objection that it is unreasonable , because it makes a man to abjure his trade : to that i answer , that it is reasonable , and makes him abjure no more than the law forbids him to do , for it is not reasonable that he who hath the jurisdiction of assise of bread and ale , wine and fish , that he during his office should sell those things by retail . now that the mayor and aldermen of london have this jurisdiction , see the statute of e. cap. . . for fish ; the statute of h. . cap. . for ale and beer ; and h. . cap. . for wine , where in these cases power is given to all head-officers of cities , burroughs and towns-corporate to punish the offenders against the rates and assises of the things aforesaid : and by the statute of e. . cap. . it is expresly ordained , that no officer of a city or burrough should sell wine or victuals during his office. i confess this statute is repealed by the statute of h. . but yet there is a provision in that statute that it extend not to london : then the law being that none of those things shall be sold by any officer by retail during his office ; the oath which makes a man to abjure that which the law forbids , of necessity ought to be taken as lawful : besides , there is a writ grounded upon the statute of e. . which you shall find in the register . a. & fitz. n. b. . b. that the party grieved might have directed to the justices of assises , commanding them to send for the parties , and to do right , &c. wherefore i hold the oath good and lawful notwithstanding this objection . for the point of notice , i conceive it is not needful , and if it be , i ask who it is ought to give notice in this case , and i say that no person is tied to do it , wherefore he ought to take notice of it at his peril . for the debito modo electus , i say that it is good , being in a retorn upon a habeas corpus , & it is said , that it was secundum consuetudinem , which includes all things needful for the objection . that it is averred in the retorn that he was idoneus & habilis , but that it is no part of the custom that it should be so , for it is only in general , si aliquis liber homo , and doth not say habilis & idoneus , and therefore the custom should not be good : i answer , that it is averred in the retorn , that it is so , that he is elected , and that is sufficient for us to ground our judgment : but further , i conceive that the debito modo helps it , wherefore upon the whole matter i conclude that the custom is good , and the retorn sufficient , and therefore that the prisoner be remanded . pasch. º car ' in the common pleas. barrow against wood in debt . . in debt upon an obligation brought by barrow against wood , the defendant , demanded oyer of the condition , & ei legitur , &c. and the effect of it was this , that the defendant should not keep a mercers-shop in the town of tewkesbury ; and if he did , that then within three moneths he should pay forty pound to the plaintiff : upon which the defendant did demur in law , and the point is only whether the condition be good or not . serjeant evers : the condition is good , because it is no total restraint , for it is a restraint here only to tewkesbury , and not to any other place , wherefore i conceive the condition good . i agree the case in rep. . b. where a man binds himself not to use his trade for two years , or if a husbandman be bound he shall not plough his land , these are conditions against law , because where the restraint is total , although it be temporal , there the condition is not good ; but the condition is not totally restrictive in our case : and he compared this case to the case in h. . . feoffee with warranty ; proviso , that the feoffee shall not vouch it is a good condition , because not totally restrictive ; for although that the feoffee cannot vouch , yet he may rebut : so in this case , although the obligor cannot use his trade in tewkesbury , yet he may use it in any other place . and the condition is not against law ; for if it were such a condition , then i agree it would be naught ; but yet the bond would stand good , for this is not a condition to do an act which is malum in se , for there the condition is naught & the bond also , as e. . . b. by cooke & instit. . b. but although a man cannot make a feoffm●●t upon condition that the feoffee shall not alien , yet the feoffee may bind himself that he will not alien , and the bond is good ; and so i say in our case , and if the condition in this case should not be good , it would be very inconvenient ; for it is a usual thing in a town in the country , for a man to buy the shop of another man & all his wares in it , and if ( the same being a small town , where one of that profession would serve for the whole town ) he who bought the shop and wares should not have the power to restrain him ( the same being the ground & reason of the contract ) from using of that trade in that pla●e , it would be very inconvenient , wherefore he conceived that the condition was good , and prayed judgment for the plaintiff . serjeant clarke for the defendant , that the condition is not good , for it is against the law , and void , because it takes away the livelihood of a man , & that is one of the reasons against monopolies , rep. , & . and that i conceive is grounded upon the law of god , for in deut. chap. . ver . . it is said , that you shall not take in pledge the nether and upper milstone , for that is his life . so that by the law of god the restraining of any man from his trade which is his livelihood is not lawful . and surely , our law ought not to be against the law of god ; and that is the reason , as i conceive , wherefore by our law the utensils of a mans profession cannot be distreined , because by that means the means of his livelihood should be taken away . and h. . fol. . b. by hull , the condition is against law , and yet the case there is the very case with our case , for there a man was bound , that he should not use his art in d. for two years ; whereupon hull swore by god , that if the obligee were present he should go to prison till he had paid a fine to the king , because the bond is against law , and therewith agrees the rep. . b. & e. . . a farmer covenants not to sow his land ; the covenant is void : so as i conceive that although the condition be restrictive only to one place , or for a time , yet because it takes away the livelihood of a man for the time , the condition is against law , and void ; and he cited a case in the point against clegat and batcheller , mich. eliz. in this court , rot. . where the condition of a bond was , that he should not use his trade in such a place ; and it was adjudged that the condition was against law , and therefore the bond void ; and for these reasons he prayed that judgment might be entred , that the plaintiff nihil capiat per billam . justice reeve did produce some presidents in the point ; and he said that the law as it had been adjudged , stood upon this difference betwixt a contract , or assumpfit , and an obligation : a man may contract or promise that he will not use his trade , but he cannot bind himself in a bond not to do it ; for if he do so it is void . and for that he cited clegat and batchellers case before , that the obligation in such case is void ; and he said , that the reason which was given by one , why the bond should be void , was grounded upon the statute of magna charta , cap. . which wills , that no freeman should be ousted of his liberties but per legem terrae ; and he said , that the word liberties did extend to trades ; and reeve said , that by the same reason you may restrain a man from using his trade for a time , you may restrain him for ever . and he said , that he was confident that you shall never find one report against the opinion of hull , h. . for the other part of the difference , he cited hill. iac. in this court , rot. . and iac. in the kings bench braggs case ; in which cases he said , it was adjudged against the action upon a bond , but with the action of the case upon a promise that it would lie . but note , that all the judges , viz. foster , reeve and crawley ( bankes being absent ) held clearly , that if the condition be against the law , that all is void , and not the condition only as was objected by evers , and it was adjorned . apsly against boys in the common pleas in a scire facias , to execute a fine upon a grant and render , intrat trin. car. rot. . . the case upon the pleading was this : a fine upon a grant and render was levied in the time of e. . upon which afterwards a scire facias was brought , and judgment given , and a writ of seisin awarded but not executed . afterwards a fine sur co●usans de droit come ceo , &c. with proclamations was levied , and five years passed , and now another scire facias is brought to execute the first fine , to which the fine sur conusance de droit come ceo is pleaded ; so as the only question is , whether the fine with proclamations shall bar the scire facias or not . serjeant gotbold for the plaintiff , it shall not bar ; and his first reason was , because not executed , rep. , . and rep. . if a disseisor at the common law before the statute of non-claim , had levied a fine , or suffered judgment in a writ of right until execution sued , they were no bars , and a fine at common law was of the same force as it is now , and if in those cases no bar at common law until execution , that proves that this interest by the fine upon grant and render is not such an interest as can bar another fine , before execution . besides , this judgment by the scire facias is a judgment by statute , and judgment cannot be voided but by error or attaint . further , a scire facias is not an action within the statute of h. . and therefore cannot be a bar , e. . . & e. . . execution upon scire feci retorned without another plea ; and it is not like to a judgment ; for there the party may enter , but not here . besides , it shall be no bar , because it is executory only , and in custodia legis , and that which is committed to the custody of the law , the law doth preserve it , as it is said in the rep. . b. and he compared it to the cases there put , and a fine cannot fix upon a thing executory , and the estate ought to be turned to a right to be bound by a fine , as it is resolved in the rep. . a. & rep. . a. com. . and the estate of him by the first fine upon grant and render is not turned to a right by the second fine . lastly , the statute of h. . is a general law , and in the affirmative , and therefore shall not take away the statute of west . . which gives the scire facias , and in proof of that he cited h. . . rep. . & . and h. . dyer . i agree the case which hath been adjudged , that a fine will bar a writ of error , but that is to reverse a judgment which is executed , but here the judgment is not executed , and therefore cannot be barred by the fine : wherefore he prayed judgment for the plaintiff . note , that it was said by the judges , that here is no avoiding of the fin● , but it shall stand in force , but yet notwithstanding it may be barred ; and they all said , that he who hath judgment upon the scire facias upon the first fine might have entred ; and they strongly inclined , that the scire facias is barred by the fine , and doth not differ from the case of a writ of error ; but they delivered no opinion . taylers case . . the case was thus ▪ the issue in tail brought a formedon in descend . and the defendant pleaded in bar , and confessed the estate tail ; but said , that before the death of the tenant in tail i. s. was seised in fee of the lands in question , and levied a fine to him , and five years passed , and then tenant in tail died ; & whether this plea be a bar to the plaintiff or not was the question ; and it rested upon this , whether i. s. upon this general plea shall be intended to be in by disseisin or by feoffment ; for if in by disseisin , then he is barred , if by feoffment , not : and the opinion of the whole court was clear without any debate , that he shall be intended in by disseisin , and so the plaintiff is bar , as the books are , rep. . a. plow . com. stowels case , and bankes chief justice said , that it shall not be intended that tenant in tail had made a feoffment to bar his issues unless it be shewed , and it lies on the other part to shew it ; and a feoffment is as well an unlawful act as a diss●isin , for it is a discontinuance . commins against massam in a certiorare to remove the proceedings of the commissioners of sewers . . the case upon the proceedings was thus : lessee for years of lands within a level , subject to be drowned by the sea , covenanted to pay all assessments , charges and taxes , towards or concerning the reparation of the premisses : a wall which was in defence of this level and built straight , by a sudden and inevitable tempest was thrown down ; one within the level subject to be drowned , did disburse all the mony for the building of a new wall ; and by the order of the commissioners a new wall was built in the form of a horshooe ; afterwards the commissioners taxed every man within the level towards the repaying of the sum disbursed , one of which was the lessee for years , whom they also trusted for the collecting of all the mony ; and charge him totally for his land , not levying any thing upon him in the reversion , and also with all the damages , viz. use for the mony . less●e for years died , the lease being within a short time of expiration , his executor enters , and they charge him with the whole ; and immediately after the years expired , & the executors brought this certior are , upon which there was many questions . justice mallet : i conceive that the proceedings of the commissioners are not lawfully removed into this court , because as i conceive no certiorare lies to remove their proceedings at this day , because that their proceedings are in english upon which i cannot judge , for all our proceedings ought to be in latine . besides , i cannot judge upon any case if it be not before us by special verdict , demurrer , or writ of error , and it is not here in this case by any of those ways ; and if it be here by certiorare , yet we are not enabled to judge as this case is ; for the conclusion of the writ is , quod faciamus quod de jure & secundum legem , &c. fucrit faciend . and as i have said before , we cannot judge upon english proceedings , and they have power to proceed in english by the statute of h. . cap. . by which statute they have a kind of legislative power given , for it doth not reserve any power to us , to redress their proceedings ; and as i conceive no writ of error lieth at this day to correct their proceedings , because that they are in english ; and if they have jurisdiction and proceed according to it , we have no power to correct them ; because that the statute leaves them at large to proceed according to their discretions . but where they have no jurisdictio● , there we may correct them . true it is , that before the statute of h. . there are many presidents of certioraries to remove the proceedings of the commissioners of sewers into this court , for then their proceedings were in latin , but i do not find any since the statute : wherefore i conclude that no certiorare will lie in this case , and then the proceedings not being lawfully removed i cannot judge upon them , wherefore i speak nothing to the matter in law contained in the proceedings of the commissioners . heath : i conceive notwithstanding any thing alledged by my brother mallet that this court is well possessed of the cause , and may well determine it : the question here was no● , whether the cause be well removed , but whether the commissioners have well proceeded as this case is , or not ; i hold that the cause is well removed by the certiorare ; there is no court whatsoever but is to be corrected by this court : i agree that after the statute no writ of error lieth upon their proceedings , but that proves not that a certiorare lies not , they are enabled by the statute to proceed according to their discretions , & therefore if they proceed secundum aequu● & bonum , we cannot correct them ; but if they proceed 〈◊〉 they have no jurisdiction , or without commission , or contrary to their commission , or not by jury , then they are to be corrected here : if a court of equity proceed where they ought not , we grant a prohibition . without question in trespass or replevin their proceedings are examinable here ; and i see no reason but upon the same ground in a certiorare they cannot make a decree of things meerly collateral , or concerning other persons ; here they have certified their commission , and that the assessment was by a jury of twelve men , but if they had certified that it was per sacrament . iuratorum generally without saying twelve men , it had not been good , as it was by us lately adjudged , because that for any thing appears to the contrary it might be by two or three only , where it ought to be by twelve ; and i conceived they have well done here in laying all upon the lessee for years : by the law of sewers , all which may be endamaged ; or have benefit , are chargeable , and it is in their discretion so to do . but in this case they may charge the lessee or lessor ( if not for the special covenant of the lessee ) at their discretions , for the statute saith owners or occupiers ; & i conceive that the covenant here doth bind the lessee , for it is presumed that he hath considerable benefit for it , and the commissioners may take notice of it . but if the covenant doth not bind the lessee , yet i for my part will not reverse their decree for that , because that where they have jurisdiction they may proceed according to their discretions , and he covenanted to pay all taxes concerning the premisses , and here it concerns the premisses although the wall be in a new form : and it was objected , that it is now fallen upon an executor , which is hard ; which is not so because the testator was chargeable , and here the executor occupies although it be but for a short time , and he was an occupier at the time of the decree , and therefore it is reason that he should be charged . but it was further objected that he hath not assets ; i answer , that was not alledged before the commissioners ; and if an action be brought against executors at the common law , and they plead , and take not advantage of not having assets , it is their own fault , and therefore shall be charged : so here . but it was further objected , that the commissioners have not jurisdiction of damages , viz. with the interest of the mony . but i hold clearly otherwise , that they having jurisdiction of the principal , shall have jurisdiction of the damages ; wherefore i conclude that the commissioners have well done , and that their decree is good . bramston chief justice : in this case there are five points . first , whether the covenant shall extend to this new wall or not . secondly , whether this collateral covenant be within their jurisdiction or not . thirdly , whether their power do extend to an executor or not . fourthly , whether they have jurisdiction of damages or not . and lastly , whether their proceedings be lawfully removed by this certiorare or not : for the latter i hold that their proceedings are lawfully removed , and that the certiorare lieth at this day to remove their proceedings ; but i confess , if i had thought of it , i would not have granted it so easily , but it was not made any scruple at the bar , nor any thing said to it , and hereafter i shall be very tender in granting of them . true it is , before the statute of h. . they were common , but there are few to be found after the statute , and we ought to judge here as they ought to judge there , and we cannot determine any thing upon english proceedings , and at first i put that doubt to the clerks of the court , whether if we confirm their decree , we ought to remand it , or whether we ought to execute it by estreat into the exchequer or not , and they could not resolve me , wherefore i much doubted whether we might proceed to question their decree upon this certiorare or not . but because i was informed that the parties by agreement have made this case as it is here before us upon the certiorare and have bound themselves voluntarily in a recognisance to stand to the judgment of the court upon the proceedings as they were removed upon the certiorare by the agreement of the parties , therefore i did not stick upon the , certiorare , because what was done was by consent , & consensus tollit errorem , if any be . now for the points as they arise upon the proceedings of the commissioners ▪ and for the first , i hold that the covenant doth well extend to this new wall ; and the making of it in the form of a horshooe is not material , so as it be adjoyning to the land as it here was , for that may be ordered according to their discretions : it is a rule in law , that the covenant of every man ought to be construed very strong against himself ; and although that in this case the new wall be not parcel of the premisses , as it was at the time of the covenant ; because that the wall then in esse and to which the covenant did extend was a straight wall , yet according to the words of the covenant , this tax is towards the reparation of the premisses , and if it should not extend to this new wall , the covenant should be idle and vain ; and clearly , the meaning of the parties was , that it should extend to all new walls . for the second point , i hold the covenant , although it be a collateral thing , within their jurisdiction : true it is , as it is said in h. . that contracts are as private laws betwixt party and party : but you ought to know that their commission gives them power to charge every man according to his tenure , portion , and profit ; and he who is bound by custom or prescription to repair such walls is not within the words of their commission ; yet it is resolved in the rep. , . in kighleys case that the commissioners may take notice of it , and charge him only for the reparations , where there is default in him and the danger not inevitable ; and by the same reason you may exclude this covenant to be out of their jurisdiction , you may exclude prescription also . i agree that where the covenant is meerly collateral , as if a man who is a stranger covenants to pay charges for repairing of such a wall , that that is not within their jurisdiction , because he is a meer stranger , and cannot be within their commission ; but in our case it is otherwise , for the covenantor is occupier of the land , and it hath been adjudged , that if lands or chattels are given for the reparation of a sea-wall , that it is within their jurisdiction , and they may meddle with it , & that is as collateral as the covenant in question , wherefore i hold that the covenant is within their jurisdiction . for the third point , i hold that they may well charge the executor , for the executor here hath the lease as executor : but it was objected , that the term is now determined , and peradventure the executor hath not assets ; to that i answer , that it is admitted that he hath assets , for the commissioners cannot know whether he hath assets or not , and therefore he ought to have alledged the same before the commissioners , and because he hath not done it he hath lost that advantage , and it shall be intended that he hath assets by not gain-saying of it . fourthly , for the damages , i first chiefly doubted of that , but now i hold that it is within their jurisdiction : put case that one in extreme necessity , as in this case , disburse all the money for the reparations or the wall , or sea-bank , if the case had gone no further clearly , he shall be repaid by the tax and levy after ; and i conceive by the same reason they have power to allow him damages and use for his mony ; for if it should not be so , it would be very inconvenient , for who would after disburse all the money to help that imminent danger and necessity if he should not be allowed use for his money ? and the lessee here is only charged with the damages for the money collected which he had in his hands , and converted to his own use , and therefore it is reasonable that he should be charged with all the damages . besides , they having conusans of the principal , have conusans of the accessory as in this case of the damages , and he urged fitz. . a. to prove that before the statute of h. . they had a court , and were called justices : but he held as it was agreed before , that no writ of error lieth after this statute , but yet he said that the party grieved should be at no loss thereby ; for he said , that where the party cannot have a writ of error , nor audita querela , there he shall be admitted to plead , as in h. . . a. where a recognisance of debt passed for the king upon issue tried , and afterwards the king pardons it , the party after judgment may plead it , because audita querela doth not lie against the king , and where a man is not party to a judgment , there he cannot have a writ of error , but there he may falsifie , so i conceive that he may in this case , because he cannot have a writ of error ; and i conceive as it hath been said before , that after the statute of h. . the commissioners of sewers have a mixt jurisdiction of law and equity . for the certiorare i will advise hereafter how i grant it , although i conceive ( as i have said before ) that a certiorare lies after the statute , and is not taken away by the statute , and i conceive in some clearness that it may be granted where any fine is imposed upon any man by commissioner , which they have authority to do by their commission ; as appeareth by the statute to moderate it in case that it be excessive . but as i have said before , because that the parties by agreement voluntarily bound themselves by recognisance to stand to the judgment of this court upon the proceedings as they are certified , that made me at this time not to stand upon the certiorare , wherefore i do confirm the decree . . rolls moved this case : a. did suffer b. to leave a trunk in his house , whether b. might take it away without the special leave of a. was the question . justice mallet , leave is intended ; but rolls conceived that he could not take it without leave . hammon against roll , pasch. . car. in the common pleas. . in an action upon the case upon assumpsit , the case upon special verdict was this : a. and b. were bound joyntly and severally in a bond to c. who released to a. afterwards there being a communication betwixt b. and c. concerning the said debt , b. in consideration that c. would forbear him the payment of the said mony due and payable upon the said bond till such a day promised to pay it , &c. c. for default of payment at the said day , brought this action upon the case . b. pleaded the general issue , and thereupon the whole matter before was found by the jury . serjeant clarke : here is not any good consideration whereupon to ground an assumpsit , because by the release to one obligor the other is discharged ; and then there being no debt , there can be no consideration , and therefore the promise void , because it is but nudum pactum . rolls contrary , that there is a good consideration ; because that although by the release to one obligor , the debt of the other be discharged sub modo , viz. if the other can get it in his power to plead , yet it is no absolute discharge ; for if he cannot get it into his hand to plead it , he shall never take advantage of it , and then if it be no absolute discharge , but only sub modo , viz. if he can procure it into his hand to plead , then the consideration is good , for perhaps he shall never get it . justice foster asked him if by this release the debt be not intirely discharged : to which he answered , no , as to b. only , but sub modo as i have said before ; but he said , and with him agreed the whole court , that the law is clearly otherwise that the debt is intirely gone and discharged ; and then clearly there can be no consideration in this case . justice reeve : every promise ought to have a consideration , and that ought to be either benefit to him that makes it , or disadvantage to him to whom it is made , and in this case the consideration which is the ground of the assumpsit is neither benefit to him that made it , nor disadvantage to hi● to whom it was made , because there was no debt ; for it was totally discharged by the release made to a. crawley agreed to it ; bankes chief justice was absent . but because the obligation was laid to be made in london ; and no ward or parish certain put from whence the visne should come , they conceived clearly that it was not good . pasch. º car. in the kings bench. heamans habeas corpus . . richard heaman was imprisoned by the court of admiralty , upon which he prayed a habeas corpus , and it was granted , upon which was this retorn , viz. first the custom of the admiralty is set forth , which is to attach goods in causa civili & maritimi , in the hands of a third person ▪ and that upon four defaults made , the goods so attached should be delivered to the plaintiff upon caution put to restore them if the debt or other cause of action be disproved within the year , and after four defaults made if the party in whose hands the goods were attached , refused to deliver them , that the custom is to imprison him until , &c. then is set forth how that one kent was indebted unto i. s. in such a sum upon agreement made super altum mare , and that kent died , and that afterwards i. s. attached certain goods of kents in the hands of the said heaman for the said debt , and that after upon summons four defaults were made , and that i. s. did tender caution for the re-delivery of the goods so attached and condemned , if the debt were disproved within the year ; and that notwithstanding the said heaman would not deliver the goods , for which he was imprisoned by the court of admiralty until , &c. widdrington of counsel with the prisoner , took this exception to the retorn , that it appeareth by the retorn that kent who was the debtor was dead before the attachment , and you shall never attach the goods of any man as his goods after his death , because they are not his goods , but the goods of the executor in the right of the testator . besides , although the attachment be upon the goods , yet the action ought to be against the person , which cannot be he being dead , wherefore he prayed that the prisoner might be discharged . hales ; that the attachment is well made , notwithstanding that the party was dead at the time of attachment , for it is the custom of their court so to proceed , although that the party be dead . besides , he said that although that the party were dead , yet the goods are bona defuncti , and to prove that he cited e. . . the opinion of danby and catesby . that the grant of omnia bona & catalla sua by an executor will not pass the goods which he hath as executor , because they are the goods of the dead . but note , that it was here said by bramston chief justice , that it had been adjudged divers times against the opinion aforesaid , that it passeth the goods which the executor hath as executor : and he said , that if a man hath a judgment against an executor to recover goods , the judgment shall be that he recover bona defuncti . to that the court said , that the judgment is not quod recuperet bona defuncti , but quod recuperet the goods which fuerunt bona defuncti . for the objection , that the plaint ought to be against the person , which cannot be when he is dead , to that hales said , that in the admiralty the action is against the goods , and therefore the death of the person is not material ; to that justice heath said , that it is the party who is charged , the goods are only chargeable in respect of the person , and you shall never charge the goods alone , but there ought to be a party to answer . hales : if they have jurisdiction , they may proceed according to their law , and we cannot hinder it : to which heath said , take heed of that , when it concerneth the liberty of the subject , as in this case . and note , that bramston chief justice asked the proctor of the admiralty then present this question , whether by their law the death of the party did not abate the action ; and he said that it did ; then said the chief justice , it is clear that an attachment cannot be against the goods the party being dead ; wherefore by the whole court the custom to attach goods after the death of the party is no good custom ; and therefore they g●ve judgment that the prisoner should be discharged . . note , that bramston chief justice and heath justice said in evidence to a jury , that a will without a seal is good to pass the land , and that it is a forgery expresly by the statute of eliz. cap. . to forge a will in writing . pasch. º car ' in the kings bench. fulham against fulham in a replevin . . the case was thus : henry the seised of a mannor in which are copyholds , grants a copy-hold for life generally , and whether this be a destroying of the copyhold or not , was the question . and it was argued by harris that the grant was utterly void , because the king was deceived in his grant , for he said , the king had election to grant it by copy , and therefore it shall not be destroyed by a general grant without notice , and cited many cases to prove that where the king is deceived in the law , his grant shall be void ; but bramston chief justice and the court said , that it never recited in any of the grants of the king what is copyhold , and they were clear of opinion that the grant was not void . but whether it destroy the copyhold or not , so as the king hath not election to grant the same after by copy , that they agreed might be a question . serjeant rolls at another day argued that the copyhold was destroyed by the kings grant , but he agreed that it is not reason that the patent should be utterly void , for that he said would overturn all the kings grants , for there is not any patent that ever recited copyhold , and therefore the question is , whether the copyhold be destroyed or not , and he argued that it is , because there needeth not auy recital of copy-hold , br. pat. . it is agreed that where the king grants land which is in lease for term of years of one who was attainted , or of an abby or the like , that the grant is good without recital of the lease of him who was attainted , &c. for he shall not recite any lease but leases of record , and therewith agreeth rep. . a. and dyer , fol. . pl. , & . now he said there is no record of these copyholds , and therefore there needs not any recital of them , and therefore the king is not deceived . further he said , that no man is bounden to inform the king in this case , and therefore the king ought to take notice , and then the reason of the case of a common person comes to the kings case , because the copyhold was not demiseable for time as before , according to the nature of a copyhold , and therefore of necessity is destroyed , and the court as i said before , did conceive the case questionable . burwell against harwell in a replevin . . the case was shortly thus : a man acknowledged a statute , and afterwards granted a rent-charge : the land is extended , the statute is afterwards satisfied by ●ffluxion of time , and the grantee of the rent did distrain ; and whether he might without bringing a scire facias , was the question . and the case was several times debated at the bar , and now upon solemn debate by the judges at the bench , resolved . but first , there was an exception taken to the pleading , which was , that the avowant saith , that the plaintiff took the profits from such a time to such a time , by which he was satisfied , that was said to be a plea only by argument , and not an express averment , and therefore was no good matter of issue , and of this opinion was justice heath in his argument : but bramston chief justice , that it is a good positive plea , and the plaintiff might have ●ravers●d without that , that he was satisfied modo & forma , and in plowd . comment . in buckley and rice thomas 〈…〉 , ut , cum , tam , quam , are good issues . now for the point in law , justice mallet was for the avowant , that the distress was lawful , the grantee of the rent cannot have a scire facias , because he is a stranger , and a stranger cannot have a scire facias , either to account , or have the land back again . the cases which were objected by my brother rolls , viz. e. . tit . scire facias . br. scire facias . & fitz. scire facias . that the feoffee shall have a scire facias , do not come to our case , for here the grantee of the rent is a stranger not only to the record but to the land , which the feoffee is not . further , it was objected , that the grantee of the rent claims under the conusor , and therefore shall not be in a better condition than the conusor ; there are divers cases where grantee of a rent shall be in better condition than the conusor ; the lord mountjoyes case : a man makes a lease for years rendring rent , and afterwards acknowledgeth a statute , and afterwards grants over the rent , now it is not extendable . besides , it was objected , that if this should be suffered it would weaken the assurance of the statute and disturb it : i agree that may be , but if there be not any fraud nor collusion , it is not material , and then he being a stranger , if he cannot have a scire facias , he may distrain : it is a rule in law , quod remedio distituitur ipsa re valet , si culpa absit ▪ h. . . where there is no action to avoid a record , there it may be avoided by averment , &c. e. . . & rep. . eliz. syers case ; a man indicted of felony done the first day of may , where it was not done that day , he cannot have an averment against it , but his feoffee may . h. . . the king grants my land unto another by patent , i have no remedy by scire facias . e. . br. fauxifer of recovery . . f. n. b. . e. . . e. . . a. a man grants a rent , and afterwards suffers a recovery , the grantee shall not falsifie the recovery because he is a stranger to the recovery , but he may distrain , which is the same case in effect with our case : for which cause i conceive that the distress is good , and that the replevin doth not lie . justice heath : the distress is unlawful , for he ought to have a scire facias , clearly the conusor ought to bring a scire facias , see the statute of e. . fulwoods case , rep. r. . & h. . and the reason why a scire facias is granted , is , because that when a possession is setled , it ought to be legally evicted . besides , it doth not appear in this case when the time expired : besides , costs are to be allowed in a statute as fulwoods case is , and ●he same ought to be judged by the court and not by a jury , which is a reason which sticks with me , see the statute of h. . it is objected that the grantee of the rent cannot have a scire facias , it will be agreed that the conusor himself cannot enter without a scire facias , and i conceive à fortiori not the grantee of the rent . i do not say here there is fraud , but great inconvenience and mischief if arrerages incurred for a great time ( as in this case it was ) shall be all levied upon the conusee , for any small disagreement , as for a shilling , without any notice given to him by scire facias , and he should be so ousted and could not hold over . i hold that of necessity there ought to be a scire facias , and he ought to provide with the grantor to have a scire facias in some fit time , but i hold that the grantee here may well have a scire facias . i agree the cases where it is to avoid a record , there ought to be privity , as the books are , but here h● doth not avoid the record , but allows it , for the scire facias ought to be only to account , e. . the second conusee of a statute shall have a scire facias against the first conusee , and i conceive that by the same reason the grantee of the rent here shall have it , and in that case there is no privity betwixt the first conusee and the second conusee ; for which cause he did conclude that the distress was unlawful , and that the reple●in would well lie . bramston chief justice for the avowant , that 〈◊〉 may well distr●in , and cannot have a scire facias , but if he may have a scire facias , yet he may distrein without it . there is no authority in the law directly in the point in this case : i agree that if there be any prejudice to the conusee , there it is reason to have a scir● facias . it was objected , that it is a constant course to have a scire facias in this case . but i believe you will never find a scire facias brought by the grantee of a rent , or other profit apprender . besides , the best way to judge this case is to examine what the scire facias is which ought to be brought , and what the judgment is which is given upon it , whether he may recover the thing in demand or not , vid. e. . fitz. scire facias . & e. . . which are brought to have account , and to shew cause wherefore he should not have the land : see fitz. scire facias . v. the old entries , the judgment which is given thereupon , and the demand there is quod tenement . praed . redeliberatur , and may the grantee in this case have the land and thing in demand ? certainly not ; and that gives sufficient answer to the cases objected by my brother heath , where the second conusee shall have a scire facias against the first . besides , you shall never find in all our books that a man shall have an attaint or a writ of error , but he who may be restored to the thing lost by the judgment or verdict , r. . dyer . . rep. the lord sanchars case ; so in debt and erroneous judgment upon it , wherewith agreeth doctor druries case , rep. . & e. . . the feoffee shall have a writ of error , because he shall have the land , and see e. . scire facias . and the grantee shall not have a writ of error in this case upon erroneous judgment , and for the same reason he shall not have a scire facias , and the grantee cannot have a scire facias for want of privity , and therefore i conclude that he cannot have a scire facias , for if he might , certainly it would have been brought before this time , either for this cause , or for some other profit apprender . it was objected that he shall not be in better condition than the conusor , that is regularly true as to the right , but he may have another remedy . it was objected that the reason why that a statute without a scire fatias shall not be defeated is , because he is in by record , and therefore shall not be defeated without record , but that is not the true reason , but the reason is , because the conusee ought to have costs and damages , besides his debt , as is fullwoods case rep and h. . . is , that the chancellor shall judge of the costs and damages . but e. . . & e ▪ . scire facias . by all the judges that they lie in averment . but here an inconvenience was objected , that great arrerages should be put upon the conusee for a little mistaking ; to that he said , that of a small mistake the court shall judge , and it shall not hurt him , but if he hold over being doubly satisfied , it is reason that he pay the ar●erages ; and he put this case , a man acknowledgeth a statute , and afterwards makes a lease to begin at a day to come , the l●ssee shall have a scire facias ▪ for where remedy doth fail , the law will help him ; for which cause he concluded , and gave judgment for the avowant . trin. car ' in the kings bench. paulin against forde . . an action upon the case brought for words ; the words were these : thou art a thievish rogue , and hast stolen my wood , innuendo lignum , &c. gardiner : the words are not actionable , because it shall be intended wood standing or growing , and not wood cut down , and so he said it had been adjudged ; so if a man says of another , that he hath stollen his corn or apples , the words are not actionable , because they shall be intended growing . bramston chief justice , that the words are actionable , because that wood cannot otherwise be meant , but of wood cut down , because it is arbor dum crescit , lignum dum crescere nescit , for which cause he conceived that the words were actionable ; and it was adjorned . chambers and his wife against ryley . . action upon the case for words , the words were these : chambers his wife is a bawd , and keeps a bawdy-house : for which words the action was brought , and the conclusion of the plea is ad damnum ipsorum . wright : the words are not actionable , because it is not the wife that keeps the house but the husband , and therefore the speaking the words of the wife cannot be any damage to him ; but admit the words were actionable , the husband only ought to bring the action , because the speaking of the words is only to his damage . bramston chief justice : the wife only is to be indicted for the keeping of a bawdy-house , and therefore she only is damnified by the words , and the husband ought to joyn in the action , but that is only for conformity , and the conclusion of the plea is good , for the damage of the wife is the damage of the husband , and therefore ad damnum ipsorum good . and here it was agreed , that to say that a woman is a bawd , will not bear an action ; but to say , she keeps a bawdy-house , will. porter , who was for the action cited a case , which was thus . one said of the wife of another , that she had bewitched all his beasts ; and she and her husband joyned in an action , and upon debate it was adjudged good ; and there the conclusion also of the plea was ad damnum ipsorum . rickebies case . . rickebie was indicted in durham for murder , and afterwards the indictment was removed into the kings bench , where he pleaded his pardon ; which pardon had these words in it , viz ▪ homicidium feloniam , felonicam interfectionem , necem , &c. seu quocunque alio modo ad mortem devenerit . and note , there was a non obstante in the pardon of any statute made to the contrary ; and whether these words in the pardon were sufficient to pardon murder or not , was the question . hales for the prisoner said , that the pardon was sufficient to pardon murder , and in his argument first he considered whether murder were pardonable by the king at the common law or not , and he argued that it was ; the king is interessed in the suit , and by the same reason he may pardon it . it is true , that it is malum in se , and therefore will not admit of dispensation , nor can an appeal of murder which is the suit of the subject be discharged by the king but the king may pardon murder although he cannot dispense with it : see bracton lib. . cap. . and the law of the j●ws differs from our law ▪ & so the constitution of other realms ; then the question is , whether this prerogative of the king to pardon murder be taken away by any statute or not ; and first for the statute of e. cap. . upon which all the other statutes depend : that statute made was only to prevent the frequencie of pardons , but not totally to take away the kings prerogative , for the words of the statute are , that offenders were incouraged because that charters of pardon were so easily granted in times past , &c. and the statute of r. . cap. . admits the power and prerogative of the king of pardoning murder notwithstanding the former statute ; for that statute prescribes the form only ; and r. . in the parliament-roll , number . the king saith , saving his prerogative . the next thing considerable here is , admitting murder pardonable by the king , whether in this pardon there be sufficient words to pardon murder or not , and he argued that there was ; and first for the word ( felony ) and he said , that by the common law pardon of felony is pardon of murder ; the statute of e. . cap. . inables justices of peace to hear and determine felonies ; and in e. . dyer . a. it is holden clearly that the justices of peace by virtue of that act have authority to inquire of murder , because it is felony ; and in instit. . a. by the law at this day under the word ( felony ) in commissions , &c. is included petit treason , murder , &c. wherefore murder being felony , the pardon of felony is the pardon of murder . further he said , that the pardon of manslaughter is a good pardon of murder ; for he said that murder and manslaughter are all one in substance , and differ only in circumstance , as the book in plowd . comment . fol. . is , and if they were divers offences , then the jury could not find a man indicted of murder guilty of manslaughter , as it was in the case before cited . the last words are , & quocunque alio modo ad mortem devenerit , which extends to all deaths whatsoever ; and if it should not be so , the statute of r. . should be in vain . i agree the books of e. . ass. . & e. . . objected on the other side , that the pardon of felony doth not extend to treason , with which the institutes agrees , they make not against me ; see the statute of e. . cap. . and the books of e. . . by billin . & h. . . by strange , they are but bare opinions . it was objected that an indictment at the common law shall not extend to murder unless the word ( murdravit ) be in the indictment : i answer , that a pardon of felony may pardon robbery , and yet here ought to be also robberia in the indictment . a pardon need not nor can follow the form of indictments , the offence apparent , it sufficeth . further , he argued that the king might dispense with the statute of e. . & r. . by a non obstante . it was objected , that the kings grant with a non obstante the statute of r. . cap. . of the admiralty is not good , and that so of a pardon o● murder with a non obstante : to that he answered , and took this difference , where the subject hath an immediate interest in an act of parliament , there the king cannot dispense with it , and such is the case of the admiralty ; but where the king is intrusted with the managing of it , and the subject only by way of consequence , there he may : see r. . . & h . . it was objected , that the king cannot dispense with the inquiry of the court upon the statute of r. . cap. . to that he answered , that the inquiry is the kings suit , and therefore he may dispense with it : see e. . . it was objected further , that the pardon saith , vnde indictatus est . to that he answered , that if it be left out it is good without it , for the same is only for information ; see h. . . and the words of pardon are usual to say , vnde indictatus vel non indictatus , utlegat ' vel non utlegat ' and that would avoid all pardon 's before if it should be suffered , and for these causes he concluded and prayed that the pardon might be allowed . shaftoe of grays-inn at another day argued for the king , that the pardon was insufficient , and first he said , that the words of the pardon were not sufficient to pardon murder . for the words homicidium and feloni●am interfectionem are indifferent words , and therefore shall not be taken in a strict and strained sense . it is true , that killing is the genus , but there are several species of it and several offences . now for the word ( felony ) i conceive that the pardon of felony will not pardon murder , vide h. . . fol. . dyer . but yet i conceive that felony in the general sense will extend to murder , but not in a pardon , for there ought to be precise and express words , and so are the books of h. . . by strange , and h. . keilway b. express in the point , hill. . iac. institut . . a. and stamford pleas of the crown , . a. if a man be indicted for an offence done upon the sea , it is not sufficient for the indictment to say felonicè , but it ought also to say pyraticè . and pardon of all felonies is not a pardon of all pyracie ; by the same reason , here pardon of felony is no pardon of murder . for the ●ast words , quocunque alto modo ad mortem pervenerit , these words do not pardon murder , because they are too general , vide h. . . & ass. pl. . and clearly if there were but these general words they would not pardon murder . i was objected that these words are as much as if murder had been expressed in the pardon . to that he answered , that the statute of r. . cap. . saith that the offence it self ought to be expressed , and doth not say by words equipollent ; and the title of the statute is , that the offence committed ought to be specified . in all pardon 's the king ought to be truly informed of the form , as also of the indictment and proceeding upon it : see rep. fol. . and here is no recital in the pardon , e. . . h. . . pardon of attainder doth not pardon the felony , and pardon of the felony doth not pardon the attainder . i agree that the king may pardon his suit , but the same ought to be by apt words . the words of licet indictatus , or non indictatus , will not help it , it goeth to the proceedings only , and not to the matter . besides , the law presumes that the patent or pardon is at the suggestion of the party ; and therefore if the king be not rightly informed of his grant , he is deceived , and the grant void ; and perhaps if the king had been informed that the fact done was murder , he would not have pardoned it ; and the words ex certa scientia shall not make the grant good , where the king is deceived by false suggession of the party : see altonwoods case , rep. . a. & . b. . e. . . b. is an authority in the point : by billing charter of pardon ought to make express mention of murder , or otherwise it will not pardon it ; and h. . . b. keilway , pardon of all felonies will not pardon murder , br. charter de pardon . there ought to be express words of murder in the pardon : see the old entries . h. . . by ratcliffe objected , that the king may pardon murder with a non obstante , that i agree , but if ought to be by express words : see stamford pleas of the crown , fol. , . and . a. where it is said , that a pardon of all felonies doth not extend to murder . besides , i conceive that a non obstante cannot dispense with the statute of r. . i agree that where there is a penalty only given by the statute , there the king may dispence with it . i agree the book of h. . . there it was a penalty only . i agree also that the king may dispense with the statute of quia emptores ●errarum , as the book is , n. b. . . f. but when a statute is absolute and not sub modo , there he cannot dispense with it : see eliz. dyer . and rep. . princes case , institut . a. and hobarts rep. . the king with a non obstante cannot dispense with the statute of simony , because it is a positive law and not sub modo , and this statute of r. . is for the common good . it was objected that the king may pardon murder by the common law , and that the statute of r. . takes away the inquiry only ; further , it was objected , that the statute of e. . did allow that the king might pardon murder , but not so easily ; and the statute of r. . is sa●●ng our regality , by which was concluded that his prerogative is saved . bracton fol. . a. saith , that the kings pardoning of murder was contra justitiam , and register fol. . se defendendo , and per infortunium only are pardonable ; and that well expounds the statute of e. . cap. . which enacts that charters of pardon shall be only granted where the king may do it by his oath ; that is to say , where a man kills another se defendendo , or per infortunium . and for the saving of the regality , which is in the statute of r. . to that i say , that the judges ought to judge according to the body of the act , and that is express that the king cannot pardon murder . e. . . and kelway . there it is disputed , but yet it came not to our case , for that is only of a pardon of the kings suit : and for these reasons he prayed that the pardon might not be allowed . keeling for the king , that the pardon is not sufficient to pardon murder : the kings pardons ought to be taken strictly , and so is the rep. the question here is not , whether the general words shall extend to murder ; but whether it ought to be precisely expressed in the pardon or not , and he held that it ought ; and h● held that the king cannot dispense with the statute of r. . by a non obstante the books of r. . & h. . . & . rep. . that the king may dispense with a penal law he agreed , but he said that this act of r. . binds the king in point of justice , and therefore the king cannot dispense with it ; and institutes ▪ the king by a non obstante cannot dispense with the buying and selling of offices contrary to the statute , because it toucheth and concerneth justice . wherefore he prayed that the pardon might not be allowed . finis . there is lately reprinted mr. march's actions for slanders and arbitrement●● ▪ sold by mris walbanck at grays inn-gate in grays-inn-lane . an exact table to these reports , alphabetically composed by the author . abatement of writ . see title writ . acceptance . where a witness hath not a reasonable sum delivered to him , for costs and charges , according to the distance of place , as the stat. of q . saith , yet if he accept it , it shall binde him . see tit. witnesses . . accompt . for what things a husband who is administrator to his wife , shall be accomptable in the ecclesiastical court ; for what no● . pa. . pl. where an accompt by bill lies for an attorney of the common bench , kings bench , or exchequer ; and where i● an accompt a man shall recover dam●mages upon the second judgement . , & pl. . in debt upon an accompt it sufficeth to say that the defendant was indebted to the plaintiff upon an accompt pro diversis mercimoniis without reciting the particulars . . pl. . action upon the case . where if a man sue another , in the name of a third person , without his privity , an action upon the case will lye against him , where not ? pl. . where o●e who is not of the jury , cau●seth himself to be sworn , in the name of one returned of the jury , and gives his verdict , either party may have an action upon the case against him . . pl. . a man retorned cited in the ecclesiastical court where he was not cited , shall have an action upon the case . . pl. . action upon the case for words . what words shall be actionable , and what not ? pa . pl. . pa. . pl. , , & . pa. . pl. . . pl. . . pl. . . pl . . pl. , & . . pl. . . pl. . . pl. . . pl. . . pl. . . pl. . . pl. . . pl. . pl. . . pl. . . pl. . & . . actio personalis moritur cum persona . what shall be said to be an action personal , and to dye with the person , what not ? . , & . alimony . where a man puts his wife from him , he is compellable by the ecclesiastical court to allow her alimony . . pl. . the high commission court had not power to allow alimony . . pl. . amendment . where amendment may be in the inferiour court after errour brought , where not ? pl. . no amendments allowed in courts below . . pl. . no amendment after a verdict without 〈◊〉 . . pl . a decla●ation cannot be amended in substance ▪ wi●hout a new original , otherwise o● 〈◊〉 . . pl. . a warrant of attorney may be amended after errour brought . . pl. . & . pl. . in an ejectione firme vi & arms was in the writ , but wanted in the count , whether it be amendable or not ? quaere pa. . pl. . appendant . leet may be appendant to a hundred . . pl. . apportionment . where a debt or other duty may be apportioned , and several actions brought , where not ? . & . assumpsit , being an entire thing , cannot be apportioned . pl . where an arbitrament shall be said to be incertain , where not ? . pl. . where an award shall be said to be according to the submission , where not ? . pl. . the submission of an infant to an arbitrament is void . . pl. . . pl. . arrerages . grantee of a rent charge in see , distraines for arrerages , and then grants it over , whether the arrerages are lost or not , quaere . . pl. assent and consent . an executor is compellable in the ecclesiastical court to assent to a legacy . pl. . what shall be said a good assent to a legacy ? and where an assent after the death of the devisee shall be good , where not ? . pl. . assets . where assets , or not assets may be tried by the spiritual court ? see tit. i●risdiction . assignee & assignments . a feme sole conveys a terme in trust , and marries ; the husband assignes it over , the trust passes , not the estate . . pl. . assumpsit . where there is a mutual and absolute promise , he that brings the action needs not to say , q●od paratus est , to do the thing which he promis●d , and that the other refused to accept it ; otherwise , where the promise is conditional . . pl. . promise not to exercise ones trade in such a town is good , otherwise in case of a bond. . pl. . . pl. . promise made to an attorney of one court , for sollicitation of a cause in another court , is a good consideration upon which to ground an assumpsit . . pl. . promise is an entire thing , and cannot be apportioned . see tit. apportionment . attachment . an attachment lies against the steward of an inferiour court for dividing of actions . . pl. . see more of attachments in title contempt . attorney . infant cannot be an attorney . . pl. . an administrator brought a writ of error to reverse the outlawry of the intestate , for murder , and allowed to appear by attorney . . pl. . an attorney at common law , is an attorney in every inferiour court , and therefore cannot be refused . . pl. . audita querela . in an audita querela the law doth not require such strictness of pleadi●g , as in other actions . . pl. . averment . where , and in what cases , an averment shall be good and neces●ary , and where not . . pl. . . pl. . . & . pl. . avowry . grantee of a rent charge in fee , distrains for arrerages , and then grants it over , whether he ought to avow , or justifie , quaere . . pl. . bailiff . sheriff of a county makes a mandat bal●vis suis to take the body of a man , and the bailiffs of a liberty retorn a rescous , and good . . pl. . bankrupts . an inholder is not within the statutes of bankrupts . copyhold land is . no inholder at the time of the purchase , but afterwards not , within the statutes . pl. . baron & feme . what things of the wives are given by the law , and the intermarriage to the husband , what not ? and what things he shall gain by letters of administration after her decease . . pl . baron and feme cannot joyn in a writ of conspiracie , in what other cases they may joyn . . pl. . see . pl. . whether trover and conversion against a baron and feme , and a count of a conversion ad usum 〈◊〉 be 〈◊〉 or not ; quaere . pl. . se● . pl. . feme ●ole conveys a 〈…〉 , her hus●and that shall ●e , covenants with her 〈◊〉 to intermeddle with it , and yet after marriage assignes it over , the feme shall have remedy in equity ▪ pl. . baron and feme present to a church , to which they have no right , this gains nothing to the feme ; otherwise when they enter into land , or when the feme hath right . . pl. . one said of the wife of another that she was a bawd and kept a bawdy-house , for which they joyned in action , and declared ad damnum ipsorum , and held good . pl. . bar. bar in one ejectione firme , ●is a bar another brought for the same ejectment , but not for a new ejectment . . pl. . plea in bar , incertain , is naught . see tit. pleadings , &c. tenant for life , the reversion to an ideot , an uncle heir apparent to the ideot , levyes a fine , and dyes , tenant for life dyes , the ideot dyes , whether the issue of the uncle , who levied the fine , shall be barred by it , or not , quaere . . pl. . & . pl. . certiorari . upon a certiorari to remove an indictment of ●orcible entry denier of one , shall not 〈◊〉 the others , of the benefit of the certiorari , they offering security according to the statute of iac ' , and the sureties being worth ten pounds cannot be re●used , and after a certiorari brought , and tender of sufficient sureties , the justices proceedings are coram non judice . . pl. . a. and b. were indicted for a murder , b. flies , and a. brings a certiorari to remove the indictment into the kings bench , whether all the record be removed , or but part , quaere . . pl. . certiorari lies to remove the proceedings of the commissioners of sewers . see title sewers . cessante causa cessat effectus . outlawry reversed , the original is revived , for cessanto cause , &c. . pl. . chancery . after execution and moneys levied , the lord keeper cannot order the money to remain in the sheriffs hands , or that the plaintiff shall not call for it . . pl. . charter of pardon . whether a pardon of the king of felony , homicide , &c. doth pardon murder , or not ? quaere . . pl. . commission & commissioners . commissioners execute a warrant with a stranger to the warrant , yet good . . pl. . confirmation . baron and feme donees in special tail● the baron levies a fine , and dyes , he in the reversion confirmes to the wife her estate to have to her and her heirs of her body by the husband-ingendred , what is wrought by this confirmation , quaere . . pl. . consideration . what shall be said a good consideration upon which to ground an assumpsit , what not ? pl. . & . pl. . contempt attachment ought not to be granted against the sheriff for contempt of his bailiffs . . pl. . upon error brought , notice ought to be given to the sheriff , otherwise he shall not incur a contempt for serving execution . . pl. . no attachment , without an affidavit in-writing . . pl. . attachment lies against the steward of an inferiour court , for dividing of actions . . pl. . copyhold . copyholds not granted in reversion , except by custom . . pl. . copyhold is within the statutes of q. . and iac. . of bankrupts . . the king grants a copyhold for life generally , whether this destroys the copy-hold , or not ? quaere . descent of a copyhold shall not take away an entry . . pl. . coram non judice . after a certiorari brought to remove an indictment of forcible entry , and tender of sufficient sureties according to the statute of iac. the proceedings of the justices of peace are coram non judice . . pl. . presentments taken in an hundred-court , are coram non judice . pl. . corporation . churchwardens in london are a corporation , and may purchase lands to the benefit of the church : but churchwardens in the country , though a corporation , are capable onely to purchase goods to the benefit of the church . . pl. . covenant . a man makes a lease , and that the lessee shall have conveniens lign●m non succidend ' & vende●d ' arbores , the lessee cuts down trees , the lessor may bring an action of covenant . . pl. . lessee of a house covenants to repair it with convenient , necessary , and teneatable r●parations , in covenant the lesser alleadgeth a breach in not repairing , for want of tyles and daubing with morter , and doth not shew that it was not tenentable , & therefore nought . . pl. . a man by deed conveys land to his second son by these words , i do give and grant this land to i. s. my second son and his heirs after my death ; and no livery made , and dyes ; the estate passeth not by covenant , and therefore the son taketh nothing . . pl. . covenant with two severally , and good . . pl. . counsel & counsellors . counsel saith to his client , that such a contract is simony , and he saith , that simony or not simony , he will do it , and thereupon the counseller maketh this simoniacal contract , this is no offence in him . . pl . custom and perscription . by the custom of london , a man may transfer over his apprentices to another . . pl. . by the custom of london , the mayor may restrain any man from setting up his trade within the city , in a place unapt for it , and for his disobedience may imprison him . . pl. . custom to cut grass in the soyl of another to strow the church , good custom . . pl. . custom or prescription in non decinando by a hundred is good , but not by a parish or particular town . . pl. . a law or ordinance , where the custom will warrant it , that he that puts in his beasts in the common beyond such a limit or bound , shall pay s. d. is a good law. . pl. . custom that if a man have see in land , that it shall descend to the youngest son , and if tail , that then to the heir at common law , is a good custom . . pl . prescription to have common for all beasts commonable is naught ; but for all beasts commonable levant and couchant , is good . pl. . a hille hath a chappel , and buries at the mother-church , and for this , have time cut of mind repaired parcel of the wall of the church , it is good for to excuse them from repairing the church . inhabitants of a place prescribe to repair the chappel of ease , and in regard of this , that they have been time out of minde freed from all reparations of the mother-church , good prescription . pl. . hille hath a chappel of ease , and a custom that those with in such a precinct ought to find a rope ▪ for the third bell , and repair part of the wall of the mother-church , in consideration of which they have been freed of payment of any tythes to the mother-church , whether this be a good custom or not ; quaere ubi supra . damage cleer . what damage cleer is ; and the prejudice that a man may have in this , that he cannot have his judgement before that he hath payed the damage cleer . . pl. . damages and cost . heir apparent ravished of full age , his fat●er shall not recover damages . pl. . in attaint , the verdict was affirmed , and the defendant in the attaint prayed costs , but was denyed by the court. pl. . a man distrai●s for a penalty asse●●ed by custom , and distrainable by custom , and upon a beplevin brought , judgement was given for the avowant , and damage assessed , and whether damage ought to have been given , or not ; quaere . . pl. . where damages entire shall be nought , and where not ; . pl. . & . pl . & . pl. . where costs and damages shall be recovered upon a penal law , where not ? . pl. . pl. . prisoner removing himself by habeas corpus , shall pay the costs of the removal , otherwise where he is removed by the plaint●ff . . pl. . in an accompt a man shall recover damages upon the second judgement . . pl. . debt . a sheriff levies money upon a fieri fa cias ; debt will lie against him , and if he dyes , against executors . . pl . in debt upon an accompt , it sufficeth to say that the defendant was indebted to the plaintiff upon an accompt pro diversis mercimoni●● , without reciting the particulars . . pl. . & . pl. . defamation . if a man libel in court christian for calling of him drunkard , prohibition lies . see tit. prohibition . . d. libelled in the ecclesiastical court for these words ; she is a bea●●ly qu●an , a 〈◊〉 q●ean , a copper-●os'd q●ean , and 〈…〉 and hath 〈◊〉 l. and 〈…〉 with whor●s and reg●●s : upon which a prohibition was prayed and granted . . pl. . a woman libelled in the spiritual court against one for calling her jade , upon which a prohibition was prayed , and granted : but if it be libelled for calling one whore or bawd , no prohibition lies . . pl. . by the custom of london an action lies for calling a woman whore , and ruled a good custom . . pl. . default & appearance . administrator of one outlawed for murder , brought error to reverse the outlawry , and was allowed to appear by attorney . . pl. . demands & demandable . grantee of a rent to be paid at the house , and if the rent be behinde and lawfully demanded at the house , that then it shall be lawful for the grantee to distrain , whether a distress upon the land be a sufficient demand as this case is , or not ; quaere . . pl. . denizen & alien . merchant goes beyond sea , and marries an alien , who have issue , the issue is a denizen . . pl. . deprivation . where a church shall be void , without sentence of deprivation . see title void & voidable . devises . devise of goods to one for life , the remainder to another , the remainder is void . . pl. . divorce . a man divorced causâ adulterii is within the proviso of the statute of of king iames ca. . but not a man divorced caus● saevitiae . . pl. . discontinuance . a man may nonsuit without the consent of the court , but not discontinue without the courts consent . . pl. . dispensations . whether the king by a non obstante in his charter of pardon may dispense with the statute of r. . ca. . or no● ; quaere . if you peruse this case , you shall finde much excellent learning upon that point in what case the king may dispense with statutes , in what not . . pl. . distress . horses traced together are but one distress , fetters upon a horse-leg may be distrained with the horse . . pl. . distribution . whether the ordinary after debts and legacies paid may inforce a distribution , or not ; quaere . . pl. . & . pl. . double plea. where two things are alleadged , and the one of necessity onely , or by way of inducement , and the party relies onely upon the other , that is no double plea. . pl. . & . pl. . ejectione firme . ejectone firme de uno repositorio ; nought for the incertainty . pl. . ejectione firme de tanto unius messuagii &c. q●a●tum ●●at super ripam , is nought for the incertainty , and so where the t●over of the jury is such , it is nought . . pl . elegi● upon an elgit there needs no liberate , otherwise upon a statute . note , the elegit excepts averia caru●● . . pl. . equity . certain special cases where there shall be remedy in eq●ity , where not . pa . pl. ● . . pl. . pl. . . pl. . . pl ● pl. . . pl. . . pl. . & . pl. . errors . in error to reverse a judgement in debt upon an arbitrament , judgement was reversed , first because that in the reference to the arbitrament , there was no word of the submission . secondly , because that the entry of the judgement was , consid●ratum est , and per curiam omitted . . pl. . in an act●on for words , judgement was reversed , because that it was averred , that the words were spoken inter diversos ligeos , and doth not say cives of the place , where they have such an acceptation ▪ as also for that the judgement was consideratum est , and per curiam omitted . pl . in trespass , the defendant justifies by a special custom , by vertue of which he did it , and doth not say , quae est eadem transgressio , for which judgment was reversed . . pl. . judgment was reversed for want of pledges . pl. . outlawry was reversed , because it did not appear where the party outlawed was inhabitant ; as also for that it did not appear that proclamations were made at the parish-church where , &c. . pl. . judgement reversed for the appearance of an infant by attorney . . pl. . o●tlawry reversed because the exigent was secund. exact ' ad com' meum ●bm ' , &c. . pl. . a. wife of i. s. intestate promises to b. to whom administration was committed , that if he would relinquish administration at the request of c. and permit a. to administer , that a. would , &c. in assumpsit by b. he shewed , that he renounced administration , and permitted a. to administer , but doth not shew that it was at the request of c. by barkley just. it is error . . pl. . judgement ought not to be judged erroneous by implication . . pl. . & . pl. . a writ of error upon dower , well lies , before the retorn of the writ of enquiry of damages ; but whether a writ of error lies in an ejectione firme , before judgment given upon the writ of enquiry , quaere . . pl. . want of warrant of attorney for the plaintiff after judgment upon nihil dicit , is error , and not amendable . . pl. . & . pl. . writ of error bearing teste before the plaint entered is nought , otherwise , where is bears teste before judgment . . pl. . in an ejectione firme the writ was 〈◊〉 & armis , but it wanted in the count , and whether this is error , or amendable , or not , quaere . . pl. . escape . upon mean process , if the sheriff retorn a cessi and rescous , no action lies against him for the escape , otherwise in case of execution . . pl. . estoppel . morgager makes a lease for years by deed indented , after performs the condition , and makes a feoffment in ●ee , the feoffee claiming unde● the estoppel , shall be bound by the lease . . pl. . if a man bind himself to deliver any thing , he is estopped to say , that he hath it not . . pl. . estoppel binds only parties . . pl. . evidence to an inquest upon issues joyned . depositions taken in the ecclesiastical court , cannot be given in evidence at law , though the parties were dead . . pl. . executions & prayer in execution . a second execution cannot be granted , before the retorn of the former . . pl. . where a man is imprisoned for the kings fine , and upon a habeas co●pus it is retorned that he is in execution also for the damages of the party , it ought to be intended at the prayer of the party . a . pl. . executor & administrator . an executor or an administrator may maintain an action for any co●t●●ct made to the testator , or in●estate , or for any thing which riseth ex contractu . . pl. . administrator of an executor shall not sue a scire fa● ' upon a judgement given for the testator . . pl. . a sheriff levies moneys upon a f●●ri fas ' and dies , debt will lie against his executors . . pl . whether the executor of a ph●llizer shall have the profits of the writs which are to ●e subscribed with his name , or his successor , quaere . . pl. . expositors of statutes . the judges are the sole expositors of acts of parliament , though they conc●rn spiritual matters . pl. . extinguishment and suspension . three covenant joyntly , with two severally , after one of the covenantors marries one of the covenant●es , whether the covenant be good or not . . pl. . fine to the king. if a carrier spoil the high-ways , by drawing a greater weight than is warrantable by the custom of the realm ; he is ●inable to the king. . pl. . fines of lands . disseisee levies a fine to a stranger , this doth not give the right to the disseisor . pl. . tenant for life , the reversion to an ideot , an u●cle heir apparant to the ide●● levies a fine , and dies , tenant for life d●eth , the ide●t dies , whether the issue of uncle who levied the fire ●●albe barred by this , or not , quaere . . pl. . & . pl. . forcible entry . restitution cannot be awarded to the plaintiff , if it doth appear that he hath seisin , yet the king shall have his fine : and if the indictment be adtunc & adhuc , the defendant keeps the possession forcibly , where the plaintiff was in possession , re-restitution shall be awarded . . pl. . forgery . to forge a will in writing , though without a seal , is forgery within the statute of q. ca. . freehold . what shall be said a grant of a freehold to commence at a day to come , what not . . pl. . gardeins of a church . where the custom is for the parishoners to chuse the churchwardens , the person by colour of the cannon cannot chuse one ; and if the minister of the bishop refuse to swear one of them chosen by the parish , a mandat lies to inforce him to it : and if the parson thereupon doth libel in the ecclesiastical court , a prohibition lies . . pl. . & . pl. . the gardeins of a church in london are a corporation , and may purchase lands to the use of the church : and in the country they are a corporation , capable to purchase goods to the benefit of the church . . pl. . good behaviour . a man was bound to his good behaviour for suborning of witnesses . . pl. . grants of common persons . grant of all tythes in c. is a good grant , for it is not absolutely general , but a general in a particular . . pl. . where a grant shall be good notwithstanding a false recital . ibidem . the king may grant an office in reversion , without custom , but not a common person , or a bishop . , & . where a trust is grantable over : see tit. assignee & assignments . . an executor grants omnia bona & catalla sua , this shall pass the goods which he hath as executor . . grants of the king. the king may grant an office in reversion , without custom . , & . grants of the king need not recite leases not of record , nor coppyholds . . pl. . habeas corpus . upon a habeas corpus , if all the causes retorned shall be adjudged for the prisoner , but one , yet he ought to be remanded for this one . , & . hariots . copyholder for life , where the custom is , that if the tenant die seised that he shall pay a hariot , the lord grants the seigniory for years , if the tenant should so long-live , and after makes a lease for years , tenant for life is disseised , and dies , who shall have the hariot ; quaere . . pl. . hue and cry. what hue and cry shall be sufficient upon the statute of winchester and q. of robberies . ieofail . no venire fac ' is helped by the statute of jeofailes , but not an erroneous one . . pl. . if a man plead an affirmative plea , as that he hath saved one harmless , and doth not shew how , it is naught . see pa. . and is matter of substance , and therefore not helped by the statute , upon a general demur . . pl. . see pa. . implicative & implie . judgment ought not to be judged erroneous by implication . . pl . & . pl. . incertainty . trover and conversion of two garbs , and counts of a conversion of two garbs , anglicè sheafs of rye , the count is incertain and void , and the anglicè doth not help it . . . where a verdict incertain shall be void . . pl. . ejectione firme de tanto unius me●nagii , &c. quantum stat super ripam , is naught for the incertainty . ubi supra . indictment . upon an acquittal , and removal of the indictment into the kings bench , the court refused to grant a copy of it to the party acquitted , that he might bring a conspiracy , except it did appear that there was malice in the prosecution . . pl. . moved to quash indictments for not paving of doors , because it was not shewn that they o●ght to pave t●em : which the court would not grant , without a certificate that the doors were paved . indictments quashed , because joynt , where they ought to be several . . pl. . indictment of rescous quashed , because it was not shewn , where the arrest was , as also , for that , vi & armis wanted in the indictment . . pl. . exceptions to an indictment of murder , all disallowed by the court. . pl. . one not retorned of a jury , causeth himself to be sworn in the name of one that was , and gives verdict , he may be indicted for this misdemeanor . . pl. . infant grant of an office of truff to an infant to execute by deputy , is good : or a grant to him in reversion is good ; for it may be granted in see , and so descend to an infant ; or a feme covert may have such an office , because that by possibility she may have a husband which may execute it . . pl . where an action shall lie against an infant , where not . , , , & . infant cannot be an attorney , because he cannot be sworn . . pl. . infant cannot submit to an arbitrament , and if he doth , it is void . . pl. . & . pl. . informations . information lies against a carrier for spoiling the highways , by drawing an extraordinary weight contrary to the custom of the realm , upon which he shall be fined and imprisoned . . pl. . inrolments . where a man in pleading of a bargain and sale ought to plead an inrolment , 〈◊〉 where not . . pl. . & pl. ●● . instance & instant . copyholder for life 〈…〉 grants the seigniory for years , if the tenant should live so long , the tenant dies , whether the grantee for years shall have the heriot by force of this instantany title , or not ; quaere . . pl. . intent & intention . where an estate shall pass by way of raising of a use , and where by way of transmutation of possession , according to the intention of the party . . pl. . ioynder in action . a promise is made to a baron of a feme executrix , in that right as executrix , whether they may joyn in action or not ; quaere . . pl. . three covenant with two severally , they cannot joyn in action . . pl. . one said of the wife of another , that she was a bawd , and kept a bawdy-house , upon which they joyned in action , and good . . pl. . baron and feme cannot joyn in conspiracy . . pl. , issues joyned . in trespass , the defendant justifies , and sayes quod hab●it viam non solum ire , equitar● , & aver●a sua fugare , verum etiam caruc●s & carreragiis carriare , &c. the plaintiff traversed it in the words aforesaid , and it was resolved that the issue was well joyned . . pl. . what words are sufficient , upon which an issue may be taken , what not . . pl. . iurisdiction . 〈◊〉 courts at 〈…〉 may hold plea 〈…〉 . pl. . if a particular and limitted jurisdiction hold plea of a thing out of their jurisdiction , all is coram non judice , and void . . pl. . the jurisdiction of the council of the marches of wales , of what things they may hold plea , of what not , and of what value see title wales . , , . court which hath jurisdiction of the principal , shall have jurisdiction of the accessory also . . pl. . & . pl. . see tit. distribution . . & pa. . if a man be sued in the ecclesiastical court for not coming to church , and pleads in excuse of it according to the statute , the ecclesiastical court may hold plea of the excuse . pl. . legatee may sue an executor in the spiritual court for to make him assent to a legacy ; and if it be issuing out of a lease for years , they may order the lease to be brought in court , though it be in the hands of a third person , but this binds onely the defendant , and assets or not assets is triable by them . . pl. . in false imprisonment brought against an officer of an inferiour court , if he justifies the arrest by vertue of a warrant directed to him out of the court , he ought to intitle the court to jurisdiction , or otherwise his plea is naught , and the action will lie against him . pl. . iustification . in trespass , if the defendant justifies for part , and saith nothing to the other part , the plea is insufficient for the whole . pl . in false imprisonment brought against the officer of an inferiour court , if he iustifies the arrest and imprisonment by vertue of a warrant directed to him out of that court , he ought to i●ti●le the court to jurisdiction , or otherwise his justification is naught . . pl. . leases . it is the course in the excequer , that they may make leases for three lives by the chequer-seal . . pl. . legacy . executor is compellable in the ecclesiastical court to assent to a legacy . . pl. . what shall be said a sufficient assent to a legacy , what not , & when it shall come in due ●ime , when not . see title asse●t and consent . . letters of mart or reprisal . if a ship be taken by letters of mart , and is not brought infra presidia of the king who granted the letters , it is no lawful prize , and the property not altered , and therefore the sale void . . pl. . license . a man may be nonsuit without the license of the court , but he cannot discontinue without the consent of the court. . pl. . limits & limitations . if a debt be superannuated by the statute of of king iames ca. . which limits a man to bring his action within years , and after the parties account together , and he is found to be indebted so much for such wares , though the party were before without remedy , yet now he may have debt upon the accompt . . pl. . & . pl. . a trust is not within the statute of aforesaid , and therefore no time lapsed shall take away remedy in equity for it . pl. see pa ● . maintainance . if a man commence an action at the suit of another without his privity , it is maintainance . . pl. . mandat . mandat granted to swear a churchwarden elected by the parish , where the parson would have put one in by force of the canon-law . see tit. gard●ins of the church . . mandat granted to swear a parish-clerk who continued two or three years in quiet possession , not being sworn , and whom the new parson would have put our without cause . . pl. . name . an earl of any other realm may implead , or be impleaded , by the name or title of knight and earl of such a place , and good , because the knight is not local , though the earl be . . pl. . new assignment . a man may make a new assignment to a special bar , as well as to a common bar , if he will. pl. . nonsuit . a man may be nonsuit without the consent of the court , but not discontinue without the consent of the court. . pl. . notice . what notice upon the statutes of 〈◊〉 e and 〈◊〉 of robberies shall be sufficient , what not . pl. . upon errour brought , notice ought to be given to the sheriff , otherwise he shall not incur a contempt , for serving execution , for which an attachment shall issue . . pl. . in all writs of enquiry of dan●●ges , as well in real as personal actions , notice ought to be given . . the defendant upon an award was to pay to the plaintiff l. or l. and costs of suit expended in an acton of trespass betwixt the plaintiff and defendant , as should appear by a note under the attorney's hand of the plaintiff , &c. the plaintiff is not bound to cause his attorney to give notice or make tender of the note to the defendant , but he ought to seek the attorney , and request it . . pl. . & pl. . if one be presented to a benefice under the age of years , no lapse shall incur to the bishop without knowledge given to the patron . . pl. . the king grants a copyhold for life generally , whether the copyhold be destroyed or not , q●aere : which depends upon this , whether the king be bound to take notice of it to be a copyhold , or not . . pl. . obligation . if a man be bound not to exercise his trade in such a town , the obligation is void . see tit. assu●psit . . if an infant binde himself to perform an award , the bond is void ; so if a stranger binde himself that an infant shall perform an award , the bond is void . . pl. . & . pl. . three are bound joyntly and severally in an obligation , the seals of two of them are eaten with mise and bats ; whether this shall avoid the bond as to the third person , as well as to the other two ; qu●re . . pl. . office & officers . where an infant may be an officer , where not , and what office may be granted in see , what not . see title infant . . the king may grant an office in reversion , without custom , but not a common person . , & . bishop may grant an office in reversion , if the custom will warrant it , otherwise not . ubi supra . parson cannot put out the clerk of the parish , without cause , if he doth , no restitution lies , but he hath his other remedy , for it is a temporal office . . pl. . orphanes . an orphan may waive the court of orphanes , and sue in equity , for it is a priviledge which the orphan hath , & q●ilibet potest renunciare juri prose introducto . . pl. . outlawry . outlawry reversed , the original stands . pl. . physitians . if a physitian bring an action against one for scandalous words to his profession , it is not sufficient for him to say , that he is in medicinis doctor , but he ought to shew that he was licensed to practise by the colledge of physitians in london , or that he was a graduate of one of the universities . . pl. . place . a man pleads a conveyance made of land , according to promise , and shews not where it was made , he need not , for it shall be intended to be made upon the land , so in case of performance of covenants . . pl. . the place of rescous ought to be shewn . . pl. . pleadings & pleader . if a man in pleading derive an estate from any man , he ought to shew what estate he had , from whom he derives his estate , if it be material to the maintaining and supporting of the estate which he claims , otherwise not . . pl. . in trespass , if the defendant justifies for part , & saith nothing to the residue , the plea is sufficient for the whole . . pl. . trover and conversion of two garbs , anglicè sheass of rye ; the count is uncertain , and naught , and the anglicè doth not help it . pl. . where a man in pleading a bargain and sale , ought to plead an inrolment , where not . . pl . & . . a man is not bound to plead the title of his adversary , or a stranger , so exact as his own title . . pl. . & . pl. . in trespass of assault , battery & wounding , the defendant may plead not guilty as to the wounding and justifie the assault and battery without any repugnancy . . . it is no good plea to say that such a one was bound in a recognizance , but he ought to say , per scriptum obligatorium ; and to conclude that it was secundum formam statuti will not help it , but in a verdict it was agreed to be good . . pl . apothecary brought an action upon the case upon a promise for divers wares & medicines of such a value , the desendant pleads in bar that he payed to the plaintiff tot & tantas denariorum summas as the medicines were worth , and shews no sum in certain , and therefore naught . . pl. . a. and b. were bound to stand to and observe such order and decree as the kings counsel of the court of requests should make : a. brought an action against b. and pleaded that the counsel of the king of the said court made such order and decree , and that the defendant did not observe it ; the defendant pleaded that the king and his counsel did not make the decree , which is naught . . pl. . where a bad plea shall be made good by verdict . see title verdict . if a man plead an affirmative plea , as that he hath saved the plaintiff harmless , and doth not shew how , it is naught ; otherwise of a negative plea , as non damni●icatus , &c. . pl. . what shall be said to be an argumentative plea , what not . . pl. . pleas of the crown . bayliffs endeavour to break open a house , to serve an execution upon the owner , who not desisting upon his threats , he shot and killed one of them , it is not murder , but man-slaughter . pl. . many notable resolutions upon the statutes of winchester , and q. of robberies . pl. . pledges . judgement reversed for want of pledges . . pl. . in a replevin brought in an inferior court and no pledges de retorno habendo taken by the sheriff according to the statute of w. . ca. . upon the plaint removed into the kings bench , that court may find pledges , and that any time before judgement . . pl. . presentments in courts . presentments taken in an hundred court were quashed , because that it is not the kings court , and therefore coram ●on judice . . pl. . priviledge . if the clerk of a court be elected into any office which requ●res his personal & constant attendance , as churchwarden , or the like , he shall have his priviledge , otherwise not , as for watching and warding , and the like . . pl. . ordered by the upper house of parliament caroli , that onely menial servants , or such as tend upon the person of a knight or burgess should be priviledged from arrest . . pl. . debt against a husband and his wife as executrix , who are sued to the exigent , and at the retorn of it , the husband ( being an officer in the exchequer ) came into court and demanded his priviledge , and whether as this case is he shall have it , or not ; qu●ere . . pl. . prohibition . a man libelled in the ecclesiastical court against one for these words , thou art a drankard , and usest to be drunk thrice a week , upon which a proh●bition was prayed and granted . . pl. . & . pl. . if the ecclesiastical court proceed upon a canon which is contrary to the common law , statute law , or custom , a prohibition lies . . pl. . & . pl. . two joynt tenants of tythes , the one sues in the ecclesiastical court without the other ; or a feme covert solely for de●amation , this is no cause of prohibition . . pl. . & pa. . pl. . see pa. . pl. . upon a petition to any ecclesiastical judge , without suit there , no prohibition lies . . pl. . a man is compellable in the ecclesiastical court to repair a way which leads to the church , but upon a libel there to repair a highway a prohibition lies . . . tenant in ta●l levyed a fine to the use of himself for life , the remainder in see to i. s. and died , the counsel of the marches wou'd settle the possession upon the heir of the tenant in ta●l , against the purchasor , upon which a prohibition was granted . . pl. . libel for tythes for barren cattle , upon a suggestion that the party had no cattle but for plough and pale , prohibition was granted : the same parson libelled for tyth of coneys , upon which a prohibition was also granted . . pl. . no prohibition after sentence in the ecclesiastical court. . pl. & . pl. . many men recover costs in the spiritual court , one of them releases , the others sue there for their costs , this is no came of prohibition baron and fe●●e recover costs there for defaming the wife , the baron releases , this will not ba● the wife . pl. . see. pa . pl. ● . & pa. ● . pl. 〈◊〉 . contract betwixt the vicar and a 〈◊〉 shi●ner to pay so much for 〈…〉 tythes , the vicar dies , his 〈…〉 in the ecclesiastical court for them , 〈◊〉 on which a prohibition was granted , by reason of the real contract which is a temporal thing . ● l. ● libel in the ecclesiastical court for these words : 〈…〉 upon which a prohibition was granted . . pl. . where the ecclesiastical court hath con●sance of the cause , though they proceed erroneously , a prohibition will not lie . . pl. . see pa. . pl. . 〈◊〉 . the ecclesiastical courts may hold plea of an excuse for not going to church , and no prohibition lies . . pl. . where there are several mo●●ses , there several prohibitions shall be granted ; where one moa●s , onely , though divers parties , all shall have but one prohibition . . pl. . if the ecclesiastical court proceed against a man without citation , where they have jurisdiction , no prohibition lies , the remedy is by way of appeal . . pl. . see pa. . pl. . 〈◊〉 . legatee may sue an executor in the sp●ritual court , for to assent to a legacy : & assets or not assets may be tried by them , and no prohibition lies . . pl. ▪ a woman libelled against another for calling of her lade , upon which a prohibition was granted : but for whore or eawd no prohibition lies ; quaere whether or not for quan . . pl. ● . if a man be sued in the court of requests to account there , a prohibition lies . see title s●●●●stratica . . & . a man exhibited a 〈◊〉 in the court of requests for moneys due upon an account , upon which a prohibition was granted , for that it is no 〈◊〉 than debt upon an account : further they referred the 〈…〉 the 〈◊〉 to ●●●ers , which 〈…〉 of prohibition . pl. ● ▪ 〈…〉 if a ship ●e taken at sea , whether b , letters of mart , or by ●itacy , if it be sold infra co●pus conitatus , and the party libels against the vendee in the admiral●y , a prohibition lies . . pl. . upon deciding of actions in an inferiour court , a prohibition lies . . pl. . property . in trover and conversion for a hawk , if he doth not say that it was reclaimed , the action will not lie , for that it doth not appear he had a property in it ; and to say that he was possessed of it ut de bonis suis propriis will not help it . . pl . a man brought trespass for fishing in seperali ●●s●eria sua , and declares that the defendant ●●●es ipsius c●pit : and good , for that he had a qualified property in them , ratione privilegii . pl. . if a ship be taken by letters of mart , and is not brought infra pr●●si●ia of the king who granted them , the property is not altered . pl. . quilibet potest renunciare juri pro se introducto . an orphan may waive the court of orphans , and sue in equity , for it is a priviledge which the orphan hath , & quilibet potest renunciare , &c. . pl. . recital . where a false recital shall not avoid a grant . . pl . grants of the king need not to recite leases not of record , nor copyholds . . pl. . recognizance . it is no good plea to say , that such a one was bound in a recognizance , and to conclude that it was secundum ●ormam statuti , but he ought to say , per scriptum obligatorium . . pl. . records . an order of the sessions of peace , is a record , and therefore the plea of nul tiel record of sessions of peace , is a good plea. . pl. . relation . if a man be living at the day of nisi prius , and dies before the day in bank , the writ shall not abate , so if a man be living the first day of parliament , and dies before the last , yet he may be attainted , for that they are but one day by relation . . pl. . releases . release to a bargainee before inrolment , is not good . . if divers recover costs joyntly in the ecclesiastical court , and after one of them releases , this is no bar to the others in a 〈◊〉 there for their costs ; so where a baron and feme recover costs there in the right of the wise , and the baron releases , this shall not bar the wife . . pl. . see title prohibition . two men are bound joyntly and severally to a third , who sues the bond against both , and after appearance , enters a retraxit against one , whether this shall amount to a release , so that it shall discharge the other or not ; quaere . . pl. . remainder and reversion . the king may grant an office in reversion , but not a common person , nor a bishop without custom . , & . remover of records . a. and b. were indicted for a murder , b. flies , a. brings a certiorari to remove the indictment into the kings bench , whether all the record be removed , or but part ; quaere . . pl. . writ of errour bearing teste before the plaint entered , is naught , and the record is not removed by it ; otherwise , where is bears teste before judgement . . pl. . reparations . the inhabitants of a parish are bound by the common law to repair the high-wayes within the parish , except prescription binde any particular persons to it . . pl. . a man is compellable in the ecclesiastical court to repair a way which leads to the church , but not a highway . pl. . repleader . where there is an insufficient bar , and a good replication , after a verdict , there shall be a repleader : contrary where no verdict . . . replevin . replevin lies of a ship. pl. . requests . a. is bound to b. to deliver to him two hundred weight of hops , and b. to chuse them out of bags , &c. whether b. is bound to request a. to shew the bags for him to make his election or not ; quaere . . pl. . rescous . for a rescous upon mean process , no action lies against the sheriff , otherwise , in case of execution . . pl restitution . clerk of a parish is put out by the parson without cause , no writ of restitution lies . . pl. . barrister of one of the temples was expelled the house , whereupon he prayed his writ of restitution , and denied , because that there is no body in the inns of court to direct unto , they being no body corporate . . pl. . retorn of a sheriff . sheriff in retorn of a rescous , saith , that he was in custodia ballivi itinerant●s , and that rescous was made to him , the retorn is naught , because the law takes no notice of the baylie itinerant . . pl. . revocation . the king presents , and before institution presents another , whether this be a revocation of the former presentation , or not ; quaere . . scire facias . upon a judgement in the kings bench there ought to be two scire faciases , one against the principal , the other against the bayle , but one only suffices in the common pleas , and two nihils retorned , amount to a scire feci . . pl. . a man acknowledgeth a statute , and after grants a rent , the statute is satisfied , the grantee of the rent may distrain , without suing●a scire facias . . pl . . pl . & . pl. . sequestration . no sequestration ought to be granted by a court of equity until all the process of contempt are run out : & the sequestring of things collateral is illegal . . pl. . for sequestring of collateral things , a prohibition was granted to the court of requests . . pl. . sewers . divers exceptions taken to the proceedings of the commissioners of sewers , upon certificates of them . . pl. . & . pl. . resolved upon question , and debate , that a certiorari doth lie to remove the proceedings of the commissioners of sewers . . pl. : supersedeas . writ of errour brought here to reverse a judgment given in ireland , is a supersedeas to the execution . . pl. . a writ of error is no supersedeas of it self without notice . . pl. . writ of error is a supersedeas to the writ of enquiry of damages . . pl. . tenant at will. whether a bargainee before inrolment or entry , shall be a tenant at will , or not ; quaere . . pl. . & . . tender . the defendant upon an award was to pay to the plaintiff l. or l. & costs of suit expended in an action of trespass betwixt the plaintiff and defendant , as should appear by a note under the attornies hand of the plaintiff , &c. the plaintiff is not tyed to cause his attorney to tender the note to the defendant , but the defendant ought to seek the attorney , and request it of him . . pl. . & . pl. . traverse . a man pleaded the descent of a copyhold in see , the defendant to take away the descent , pleads that the ancestor surrendred to the use of another , absque hoc that the copyholder died seised , the traverse is naught . . pl. . a man was bound to pay money at such a place , in debt brought against him , he pleaded that he payed the money at the place , this is not traversable . . pl. . trespass . an action of trespass lies upon the statute of e. . against any man that takes the tythes . . pl. . trespass for fishing in s●perali piscaria of the plaintiff . . pl. . trover & conversion . trover and conversion lies of a ship. . pl . tythes . a vicar cannot have tythes , but by dotation , composition , or prescription , for all the tythes de jure appertain to the parson . . pl. fishes in a river are not tythable but by custom . . pl. . an action lies upon the statute of e. . against any man that takes the tythes . pl. . custom in non decimando by a hundred is good , not by a parish or town . . pl. . a man shall not pay tythes for cattle which are for plough and pale onely : nor for conies , except by custom , and if the tenant doth not plough and manure his land , yet the parson may sue him for tythes . . pl. . a man shall not pay tythes of roots of a coppice rooted up , nor of quarries of stone , nor for brick and clay . . pl. . & . pl. . it is a rule that where a parishioner doth any thing , which he is not compellable by the law to do , which comes to the benefit of the parson , there if he demands tythes of the thing , in lieu of which that thing is done , a prohibition lies : and also it is a rule , that custom may make that tythable , which of it self is not tythable . . custom to pay tythes in kind for sheep , if they continue in the parish all the year , but if they be sold before shear-time , but a half peny for every one so soid , naughty custom : custom in the same parish to pay no tythes for loppings , or wood for fire , or hedging , is a good custom . . pl. . modus decimandi goes onely to the realty , the tythes , and not to the personalty , the offerings . . pl. . incumbent presented by simony , cannot sue his parishioners for tythes . pl. . hille which hath a chappel of ease , hath a custom , that they ought to finde a rope to the third bell , and repair part of the wall of the mother-church , in consideration of which , they have been free from payment of tythes to the mother-church , whether this be a good custom , or not ; quaere . . pl. . variance . in trespass for assault , battery and wounding the plaintiff , the plaintiff declares & sa●th , that quendam equum upon which the pla●ntiff rid , percussit , ita quod c●cidit , &c. this is no variance , for that the alleadging of the striking of the horse , was onely an inducement to the battery of himself . . pl. . venire facias . a man brought debt upon a bond conditioned to pay so much in a house of the plaintiffs in lincoln , the defendant pleaded payment at lincoln aforesaid , upon which they were at issue , and the venire fac ' was de vicinet ' civitatis lincoln ' , and found for the plaintiff , & it was moved , that this was a mis-trial , for that the venire ought to have been of the body of the county of lincoln , and not of the city , but resolved to be good . . . verdict . where the jury find the substance , though they vary in the circumstance , yet it is good . . pl. . where a bad plea shall be made good by a verdict . ● . pl. . in an ejectione firme , the jury find the defendant guilty in tanto unius messuagii in occupatione , &c. q●aentm stat super ripam , and not guilty for the residue , the verdict is naught for the incertainty . . pl. . see pa. . pl. . void & voidable the statutes of q. ca. . enacts that if a man be presented , instituted & inducted upon a simoniacal contract , that the church shall be utterly void , &c. in this case it is void , without deprivation or sentence declaratory . . pl. . wager of law. a man cannot wage his law against matter of record . . a man may wage his law against a recovery in a court baron , because it is no record . . pl. . wales . in what manner the council of the marches of wales proceed , and of what they may hold plea. . pl. . . . . pl. . & . pl. . warrant of attorney . though the attorny be dead , yet the warrant of attorny may be filed . . . where a warrant of attorny may be filed after error brought , where not . . pl. . . pl. . & . pl. . warrant of attorny may be amended after error brought . ubi supra . wills and testaments . a will without a seal is good to pass land . . pl. . witnesses . in debt upon the statute of q. ca. . it was resolved , that it sufficeth to leave a note of the process at the house of the witness ; and though there be not a reasonable sum delivered to him for costs and charges , according to the distance of place , as the statute saith , yet if he accept it , he is bound : he that will maintain an action upon this statute , ought to aver that he was damnified . . . a lawyer of counsel may be examined upon oath as a witness to the matter of agreement , not to the validity of the assurance or to the matter of counsel . and in examining of a witness , counsel cannot question all the life of the witness , as whether he be a whoremaster , &c. but if he hath done any notorious fact , which gives just exception against him , this may be taken . . pl. . writ & abatement of it . if a man be living at the day of nisi prius , and die before the day in bank , the writ shall not abate . . pl. . finis . a briefe conference of diuers lawes diuided into certaine regiments. by lodowick lloyd esquier, one of her maiesties serieants at armes. lloyd, lodowick, fl. - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a briefe conference of diuers lawes diuided into certaine regiments. by lodowick lloyd esquier, one of her maiesties serieants at armes. lloyd, lodowick, fl. - . 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conversion a briefe conference of divers lawes : diuided into certaine regiments . by lodowick lloyd esquier , one of her maiesties serieants at armes . eccle. . vidi in loco iudicij impietatem , & in loco institiae iniquitatem . london printed by thomas creede , . to the most high and mightie prince , elizabeth , by the grace of god , queene of england , france and ireland , &c. i knew not how most gratious queene , to make my most bounden & dutifull seruice known vnto your maiestie ; but as dauids seruaunts ventured theyr liues through the middest of their enemies to fetch water from the well of bethelem , to please their lord and maister ; so my selfe thought it my dutie to trauell into some farre countries in no daunger , but of your maiesties displeasure , by presenting some straunge iewels among so many , as might dislike your highnesse , which should scorch mee more then the sunne did ionas when his gourd was off ; and terrifie me more , then the countenance of moses terrified the iewes without his vaile on . but your maiestie , which forget nothing but iniuries , will the sooner forgiue mee my ouermuch boldnesse , the rather for that i present your highnesse , but with iewels , & such as far excell the iewels on aarons garment , the onely pearles which ought to be bought with al the wealth we haue , the iewels which we ought to seeke with all the studie and trauell wee can ; the onely vrim and thummim , which should shine bright on a princes breast , which the auncient kings of israel ware as tablets about their necks , as frontlets on their foreheads , and gardes on their garments , which iewels many other kings sought and mist. licurgus sought these iewels for the lacedemonians at delphos , mena sought them of mercurius for egipt , numa of the nymph egeria for the romanes , & zaleucus of minerua for the locreās . of these iewels also i brought the best pearles i could finde among them vnto your maiestie , in hope of your wonted gracious fauour to accept these iewels for their owne sake , as artaxerxes accepted water of the riuer cyrus , for cyrus sake . your maiesties most bounden and obedient seruant , lodowick lloyd . a briefe conference of diuers lawes , diuided into certaine regiments . in the first regiment is expressed the antiquitie and force of the lawe , the states of common-wealths vnder diuers kindes of gouernments . all creatures of god , as well in heauen as in earth , had lawes giuen them after they were created , to be gouerned and ruled by , the sunne , the moone , and the starres to keepe their perpetuall motions and course in their places and regiments , so the seas haue their limits and bounds , how farre they should rule and raigne , and though one starre differeth from an other in glorie , in greatnesse , and in brightnesse , yet are they gouerned by one perpetuall lawe ; so the seas , though the waues thereof be so loftie and proud , yet are they shut vp within doores , and commaunded to keepe in , and not to goe further then the place to them by lawe appointed . by lawe also the elements are commaunded to staie within their owne regiments , without trespassing one of another , as manilius faith ; certa stant omnia lege , for the stanes by lawe haue their leaders before them , they haue their watch giuen them , they haue their motions and marching appointed them , and as all riuers and waters haue their course and recourse , to the seas , and from the seas , as from their chiefe commaunder , so all starres haue their brightnesse & light from the sun , as from their chiefe generall . neither were the angels in heauen , being the first and the chiefest creatures of god , nor man in paradise beeing the last creature , tanquam epilogus operum dei , without lawe , the breach wherof made such a generall confusion , that it so obscured the first integritie of the lawe of nature , that the angels that offended in heauen , lost heauen , and were iudged to perpetuall darkenesse , and man for his disobedience in paradise , cast out of paradise to euerlasting punishment , so that the angels were not pure , nor the heauens cleare before god. the earth likewise and the seas , and all the creatures in them , by breaking of the first lawe which tertullian calleth primordialem l●…gem & legum omnium matricem , lost the benefites of the first creation , for in adams fall all creatures were cursed , which made augustine to wōder , vtrùm mirabilius homines iustos creare , quàm iniustos instificare , whether the mercy of god were more in creating iust men , or in iustifying wicked men , though with god it was of equall and like power ; yet said augustine , it was of greater mercy to iustifie vniust men , for that iustificatio er at secunda hominis creatio . yet the old patriarches liued vnder the lawe of nature , so paul testifieth that the lawe was first written , not in tables of stones , but in fleshly tables of the heart , for i will put my lawe saith the lorde in their inward parts , and in their hearts will i write it ; so augustine saith , audi linguam non in lapide sed in corde scribentem ; for from the eternall lawe , which is creatrix & gubernatrix vniuersitatis , was reuiued and lightned the lawe of nature , vnder the which the patriarches liued , for the lawe of nature which the patriarches had , being not corrupted , differeth nothing frō the written lawe giuen to moses , which is the whole summe of the morall lawe . what else is the lawe written giuen to moses , but a short repetition , and compendious catalogue , expounding vnto vs the lawe of nature , beeing obscured and corrupted by the fall of adam , but by the second adam renued , written , and giuen to moses in tables of stones , tanquam norma rectitudinis in deo. so paule sayeth , that if the gentiles which haue not the lawe , doo by nature those things contained in the lawe , they hauiug not the lawe , are a lawe to themselues , and therefore the heathens are not excuseable , for conscience which is that flammeus gladius , is a witnesse of theyr fault , and a signe of the anger and iudgement against them for theyr sinne . agnitio peccatilex , and therefore the lawe was giuen to shewe vs our infirmities , and that by the lawe grace might bee sought for , fides enim impetrat , quod lex imperat : for when the lawe was first giuen in mount sinai to moses , it was with such feare , lightning and thundering , with such cloudes , smoake , and fire , that euery part of sinai trembled and quaked , when the lawe was giuen , for the law is full of terror and ministreth vnto death . the law said plato , punisheth wicked mē , & rewardeth good mē , so cicero saith ; lex vitiorū emēdatrix & virtutū est commendatrix . by the lawe we know our selues , without the which we wander in darknesse without light , in ignorance without knowledge , in sin without feare , whose force and authoritie is from god and not from man : so could cicero say , tantalegis vis est , vt ea non homini sed deo delphico tribueretur . and therefore the first and auncient kings and law-makers of the world , quibus omnes antiquae gentes quondā paruerunt , both for the more credit of thēselues & better authoritie of their lawes , made their subiects & people beleeue , when their first lawes were made , that the gods were so carefull , that they gaue them seuerall lawes to gouerne the people . so mena one of the first kings of egipt , affirmed that he had instructions for making of his lawes and decrees to the egiptians , from god mercurius . in like sort licurgus made the lacedemonians beleeue , that the lawes which he gaue vnto them were deliuered vnto him from appollo in delphos . the people of creete were perswaded fully by minoes their first lawe-maker , that the lawes which he gaue vnto them , were deliuered vnto him from iupiter , that thereby the law might the more be feared , and the law-makers better obeyed . so did numa pomp. warrant his lawes which he established among the romanes concerning religion , from the nimph egeria , for the gouernmēt which was vnder kings , is by aristotle called primus & diuinissimus principatus . when the first gouernment and state of common-wealths fell by too much seueritie of kings , as among the romaines who were wearie of kings , and had no lawe but ius regis , the iudgement and sentence of the king , called in romulus time , lex curiata , whose seueritie grew to be such , that the second gouernment in rome , which was by consuls and senators , tooke place by fall of the first , which lawe was called senatus consultus , which grew so great by authoritie of the consuls , that a third kind of popular gouernment vnder the tribune of the people , was authorised to suppresse the misgouernment both of the consuls and senators , as the ephori were among the lacedemonians made by theopompus , to bridle the insolencie of the kings . so were the wise men called magi in persia , without whom the kings of persia could make no lawes . and so the magistrates called megistenes , had the like authoritie with the kings of armenia , as the ephori had in sparta . among the carthagineans also were two chiefe magistrates named suffetes , the one with the other to looke to the gouernment of the kings , that they should iustly and rightly minister iustice to the people . the hebrewes likewise , where god placed iudges to gouerne the people , of the which they were wearie , and would haue a king , so that the romanes being wearie of kings , would haue consuls , and the hebrewes being wearie of iudges , would haue kings , for all nations at the beginning began with the gouernment of kings , sauing the hebrewes , which were as straungers and bondmen in egipt , without eyther king , lawe , or libertie , foure hundred & thirtie yeares , euen from the comming of abraham into egipt , vntil moses and aaron were commaunded to bring israel out of egipt , at what time a lawe was giuen in mount sinai to moses , within fiftie dayes after the israelites came out of egipt , that they should bee gouerned thereby before they possessed the land of canaan . after they had receiued the lawe , the lorde commaunded them that they should not make gods of siluer , nor gods of golde : hee also commaunded that they should make him an aultar , and thereon to offer burnt offerings and peace offerings , with a straight charge that they should not make him an aultar of hewed stones like the aulter at damascus , which achab brought to israel , for that they should doo nothing of themselues after the manner of the gentiles , but by the lords prescript rules , which are his eternall lawes . yet before this lawe was giuen to moses , there were aultars builded and sacrifices offered , by noah after hee landed out of the arke at baterion , by abraham after he came to the land of canaan at sychem , by isaac in bersabe , by iacob in bethel , where hee fled from his brother esau , they were instructed by the lawe of nature , written in the tables of their hearts , to worship the lord , & to feare him euen from the creation . vnder the lawe of nature the people of god liued , and were assisted by the spirit of the lord , ministred vnto them by angels , and instructed by the patriarches , and liuely tradition of the fathers to the sonnes , two thousand fiue hundred yeares before the lawe written . who doubtes but what methusalem ( beeing in the company of adam aboue two hundred & fiftie yeares , and with the rest of the patriarches vnto the very floud , liuing vnder the lawe of nature ) heard of adam , but methusalem deliuered it to sem ? what sem heard of methusalem , but hee instructed abraham therewith ? what abraham heard of sem , hee shewed it to iacob ? and what iacob heard of abraham , hee taught it to amri , who was father to moses , to whom the lawe written was giuen , so that the one was instructed by the other , from the father to the sonne , to serue and feare the lord by the lawe of nature . so that enoch , noah , abraham , iacob , iob , and all the olde patriarches and godly fathers , liued in the feare of god by the lawe of nature . no doubt many things were written of the olde fathers before the floud , and left to their posterities , and after the floud generally ouer the whole world before the vse of paper , lawes and learning were giuē by traditions frō the parents , to the children & their posterities , as the indians which had no lawes written no more then the lacedemonians , but by obseruations , vntill the indian philosophers called brachmaines , found meanes to write in sindone , fine linnen , or lawne , as the old egiptians vsed to write on the inward side of the barke of the tree biblus , or as vlpian saith , the grecians vsed to write on the barke of the tree tilia ; for in auntient time from the beginning , lawes were written on the inward side of barks of trees , as on the barke of beech trees , elme , ashe , palme trees , and such ; for the great library in alexandria , by philadelphis compiled , and the library in asia by a●…talus and eumenes gathered together , were written in haedonis chartis in goate skinnes . during all which time , there was no mention made neither of gods nor of idols , though satan plaid the first idolater in practising to adam & eue , saying ; eritis vt dij ; ye shal be like gods on earth , & your eies shal be opened . satan by degrees deceiued adā , first asking him questions , then doubting , then denying , saying , you shal not die , which was the first lye in the world ; so satan proceedeth with his stratagems , as gregorius magnus saith in vnoquoque lapsu a minimis semper incipitur . yet after the lawe written was giuen , idolatry was presently committed before moses came downe from the mount ; so that there was no idols mentioned nor spoken of , before rachel , iacobs wife , stole her father labans image , and brought it from mesopotamia in her husbands company towards canaan , where laban accused his daughter , that she stole his gods away . but iacob within a while after he came to canaan , commaunded his houshold and all that were with him , to put away the straunge gods that were among them , to cleanse themselues , and chaunge their garments , and iacob buried and hid their images vnder an oake by sichem , and went to bethel , and made an aultar there to his god , as the lord had commaunded him . so ninus a little before that time set vp the first image that is read of to bee among the gentiles , to belus his father , from which time the name of baal , his prophets , and his priests , began to multiply so many in niniuie and in babilon , yea in iudah it selfe among the israelites , to whome the lawe was giuen from the lord to moses , forbidding them to serue straunge gods . ieroboam salomons seruant , and king of israel , which made israel first to sinne , by making two golden calues theyr gods , the one in dan , the other in bethel , saying to the people , these be thy gods ( ô israel ) which brought thee out of the land of egipt . within a while after , wicked achab being not satisfied with the gods of samaria , the golden calues which ieroboam made , brought baal frō assyria to iudah , where he kept and maintained . false prophets , to instruct and teach israel in the religion of baal , contrarie to the lawe which the lord gaue vnto moses ; for the lawe was , thou shalt haue no other gods but me : so that the gods of the moabites and ammonites , yea the gods of the gentiles , came to be worshipped in the middest of ierusalem : and mount oliuet was so full of idolatry vnder euery greene tree , and in euery groue , that thereby it was called the mount of corruption , so that ierusalem had as many straunge aultars in the time of salomon , as athens had in the time of paul. the iewes therefore were as idolatrous , and had as many gods as the gentiles had , and rather serued the dumbe idols of the gentiles , then the liuing god of israel . so vaine and wicked were the israelites , that while moses was in the mount with the lord for the lawe , before he came downe from the mount , they had forced aaron to make them a calfe of mettall , as a god to go before them , for so the lord said vnto moses , vp and get thee downe quickly , for the people haue made them a god of mettall , at what time the lord was so angrie , that he determined to destroy all the hebrues for their idolatrie , had not moses earnestly praied , and made intercession for them . for the hebrues before they came out of egipt , sawe the idolatry of the egiptians , in worshipping oxen , calues , serpents , crocodiles , and other beasts as gods , the lawe was not so soone giuen to moses , but it was as soone broken by the people , who forsooke the lord and his lawe , and followed other gods , baalim and ashtaroth , after ioshuahs death , for during the whole time of ioshuah , he kept israel from idolatry , and they serued the lord , but after his death they committed fornication with the daughters of moab , who brought israel to worship and serue theyr goddes , that the lord was angrie with israel , and bad moses take vp the chiefe men among the people , and hang them vp to the lorde against the sunne , that the lords wrath might bee taken away . so after gedeons death israel fell to their idolatrie , as they were wont to doo , that manasses a most wicked idolatrous king builded aultars to all the host of heauen in the house of the lord , and he put vp an image in the temple of the lord , where the lord himselfe said , in ierusalem will i put my name , hee worshipped and serued them , hee reared vp aultars and made groues , he built high aultars , which ezechiah his father destroyed , and following achab king of israel , offered his sonne in fire , so that in ierusalem the israelites worshipped more gods , and had more aultars to their gods , then the athenians had in athens , which paul testified , who sawe so many gods and so many aultars in athens , one to lust , one to shame , and one among so many , ignotodeo , to an vnknowne god . the second regiment of lawes , containing the contempt of religion seuerely punished among diuers nations : of the sundrie sacrifices and vowes of the heathens , and of the multitude of idols and aultars in israel . socrates deriding & scoffing at the multitude of the goddes and aultars of athens , was by the athenians put to death , not for breaking their aultars , destroying their temples , nor betraying the citie , but because he sware by a straunge god , thinking thereby hee had despised the goddes of athens , and more esteemed straunge gods . plato his scholler , though hee was of the like opinion as his maister socrates was , yet durst hee not openly confesse it , for feare of the people , though king dyonisius knew platos minde by his letters , therein signified , that when plato wrote to king dyonisius of one god , then hee wrote seriously and earnestly , but when hee wrote of many gods , hee ieasted with scoffes as socrates did . plato was of oipnion that poets and painters filled greece with all kinde of idols , for what the poets faigned in greece in fables , the same the painters painted in greece in tables , and therefore plato thought good to remoue homer crowned & annointed with all reuerence out of greece , for that hee ( through the opinion of the greekes had of him ) filled greece with too many gods and aultars . but the lord commanded israel to ouerthrowe the ●…ltars of the gentiles , to breake their pillars , cut downe their groues , and burne the images of their goddes with fire , saying ; couet not the golde nor the siluer that is about the heathens images , as achan did , least thou be sna●…ed thereby , for it is an abhomination to the lord. among the romanes they thought it a great sacriledge to contemne and prophane the religion of theyr gods , for so alcibiades was accused of sacriledge for that he offended the lawe of the athenians , despising the holy misteries of the goddesse ceres , entred with his torch-bearer and v●…rger before him , against the lawe of eumolpides , into the secret sacrifice and misteries of ceres , for the which his goods were confiscated , and himselfe banished out of athens for his contempt . so for the like clodius was accused in rome , for that he entered secretly into the misteries of flora , where none should bee but women , and the priests of flora , but as alcibiades was banished out of athens , so clo●…ius after was slaine in rome , for that clodius offended the lawe , being rather suspected for pompeia caesars wife , then for the zeale hee had to floraes sacrifice . so zealous were the heathens , that euen among the scythians , rude and sauage people , for that anacharsis the philosopher brought the ceremonies of the grecians and their religion into scythia , and vsed the same in scythia , he was slain by his owne countreymen the scythians . in like maner the athenians vsed certaine of the acarnanites , who being not priests , prophaned the gods of athens in their religion , which was taken of the athenians for a sacriledge against their gods , and therefore were the acarnanites slaine in athens . if the gentiles do this for dumbe idols and woodden gods , and allow no straunge gods to bee worshipped nor serued within their territories , neither suffered their religion to bee altered , how much more should israel obserue the lawe of their lord and god ? for of him , through him , and for him , are all things ; and as hillarius saith , quicquid in deo est deus est , & totum quod in deo est , vnum est : hermes though a heathen man amōg the egiptians , could say : deus est quae sunt & ea quae non sunt . and plato among the greekes , could say : deum esse aequalem totum & ipsum singulum . such was the blinde zeale of the gentiles towards theyr goddes , that they exceeded the iewes , for as theyr gods were innumerable , so were theyr ceremonies , theyr sacrifices , feasts and vowes infinite , they were so religious to theyr goddes , that they sought neither health , wealth , nor any thing else , without vowes made , eyther to dedicate temples and aultars , to sacrifice and make playes , as the romaines did for the health of theyr consuls , dictators , and emperours , or for any thing else , the priestes of iupiter called flamines should offer the sacrifice of haecatombae vnto theyr gods . the grecians also when their gods were offended with them , vowed for their assistance and helpe , to stand with them to dedicate statues & images , with crownes , chaines , and iewels . the egiptians when they had offended their gods , they should shaue their heads and their beards , and dedicate the haires thereof at memphis , with vowes made that they would build temples of marble and of iuorie to their gods . the persians which haue neither temples nor images , but the sunne onely whom they worship , whose temple said they , is the whole world , to whom the persians made a pile of wood , offered sacrifice , and powred wine , milke & hony , which with supplication & vowes they made to the sunne , for the persians had neither temples nor idolls , which made xerxes when he came to greece with his persian armie , and sawe their goddes and idolls so full painted and pictured on the walles of their temples , that he left neither gods nor temples that he could come vnto , vnburned . in so much that the lorde complained by his prophets , and brings these heathens , the romanes , egiptians , persians , & others in , for a proofe against his people , saying ; how these gentiles obserue and keep the lawes of their gods , and suffer no straunge god to be worshipped among them , but my people will not obey me saith the lord. the prophet ieremy cried so to israel , saying ; looke how many cities are in thee ( oh iudah ) so many strange gods do you worship within iudah . and so the lord complained how the rechabites kept the lawes and ordinances of their father ionadab , that commaunded them , they should neuer drinke wine , build no house , sowe no seede , plant no vines , and haue no vineyards , they haue kept their fathers lawes , but my people will not obey my lawes , nor keepe my commaundements saith the lord. so did the sonnes of mattathias , as the sonnes of ionadab did , obeyed their fathers commaundement in obseruing the lawes of the lord. the examples are verified in all the kings of israel , euen from salomon , for hee forsooke the lorde , and serued straunge gods , and builded aultars to chemosh , god of the moabites , and to moloch , god of the ammonites . but dauid burnt the images and idolls of the philistines in the valley of giants , so in like sort were the idols of the iamnites burned . the lord therefore sent ahiah the sylonite , to ieroboam , salomons seruant , which tooke his mantle , and rent it into twelue peeces ; thus saith the lord , so will i rent the kingdome out of salomons hand , and will giue tenne tribes to thee , although they read in the lawe of the lord , that the sword of the lord is sent against them that worship images , as the lorde said , i will whet my sworde which shall eate the flesh of ido●…ators , and will make my arrowes drunken with ●…heyr bloud , i will destroye your aultars , ouerthrowe your images , and cast your bodies vpon the ●…arkasses of your idols , yet would not israel bee in●…tructed . and therefore it was prophesied and said of ierusalem , thou shalt serue thy enemie in hunger , in thirst , ●…n nakednesse , and in neede , and he shall put a yoake of iron vpon thy necke , vntill hee haue destroyed thee ; thou shalt eate the fruite of thy body , euen the flesh of ●…hy sonnes and daughters , during the siege and straight●…esse wherein thy enemies shall inclose thee , because thou obeyedst not the voice of the lord , so that thorne and thistle shall grow on their aultar , and they shall say to the mountaines , couer vs , and to the hilles fall vpon vs. and therefore zaleucus pythagoras scholler , the first lawe that he made among the locreans , was first to establish religion , and to honour and worship the gods , acknowledging all things that are good , to come from diuine powers ; the second lawe was against contention and discord among the people , exhorting one to loue an other , agreeable to the lawe of nature , which lawe was giuē vnto vs that we should loue others , and do for others , as much as for our selues . hence grew that paradoxe of pythagoras , that all things should be common amongst friendes , and friendship most common ; and therefore socrates was wont to curse that man , qui primus vtilitatem a natura seiunxisset , for what nation is in the world , but by the law of nature , loues lenitie , humanitie , gratitude and goodnesse , and by the selfe same lawe hates crueltie , pride , vngratefulnesse and wickednesse . it seemed that zeleucus read moses lawe , for that his first lawe was concerning religion in the first table , and his second lawe touching loue and charitie betweene neighbours in the second table . licurgus among the lacedemonians made a lawe that no straunger might come and dwell in sparta , not in any part of lacedemonia , lest they should defile & prophane their lawes and religion , neither should that lacedemonian , that went out of his countrey , returne to his countrey , lest he should corrupt their religion . so it was among the israelites by the lawe of moses , that no straunger might match with the israelites , neither by marriage , nor by any societie , vnles they would become obedient to the lawe of moses . it was not lawfull in athens to thinke , much lesse to speake any thing against their gods , and for that auaxagoras the philosopher said , the sunne was but a fierie stone , he was by the athenians put to death , for that the athenians iudged the same to be a god. so carefull were the gentiles to serue theyr gods , that gedeons death was sought , for the breaking of the aultar of baal , ieptha was threatned to be slaine in his owne house , whereby hee was forced to flie to the land of tob. protagoras , because the athenians found that hee doubted in his opinion of the gods of athens , they so sought him , that had he not fled betimes hee had died for it . the like hapned to a romane captaine in egipt for killing of a catte one of the gods of egipt , which was against his will , he hardly escaped with his life , whom the people so followed and pursued to alexandria , that ptolomeu the king and all his princes had their hands full to saue him and others from death . the athenians also were so zealous and religious towards their gods , that they decreed . crownes to any man that would kill diagoras , for that hee was charged , that hee scoft and laughed at their gods , and doubted whether any gods were , & if there were , what maner of gods they were . too many examples might be brought for the proofe of this in all ages , and in all countries . the lawes of moses by the lord set downe , was to serue him in the temple of salomon : and that onely in ierusalem , yet salomon in his old age forsooke the temple , which he made to serue the lord , and was the first himselfe that serued straunge gods in groues , and vnder euery green tree , that from salomons time idolatry grew so in iudah , that the israelites had as many lawes , as they had gods , and as many gods as they had cities , and although they had not so many temples builded to their gods as the gentiles had , yet they had as many aultars in groues & vnder euery green tree , for among the israelites in euery groue was a temple , & vnder euery greene tree an aultar ; & yet they spared not to defile the temple of the lord in ierusalem ; among the gentiles they were so carefull of their gods , that euery god had his temple , for among them two gods might not be in one temple . so the romanes could endure nothing worse then to suffer strange gods to be among them , for lu. aemilius the consul , was by the senators commaunded to pull downe the temples of isis & serapis 〈◊〉 ●…at they were egiptian gods : for there was a lawe among the senators of rome , that dij peregrini e ciuitate ●…ijciantur . and therfore the romanes so esteemed their gods , that when pilate wrote vnto his lord and mais●…r tiberius caesar , to haue one iesus allowed to be one of the gods in rome , who did many miracles and great wonders in iudah & ierusalem ; and yet of malice by the iewes was put to death : though caesar would allow it , and would haue the senate also to allow 〈◊〉 , yet the senators thought it not fit that a strange god should be accepted in rome , among the romane gods , so that the romains & the grecians could serue many gods , but israel could not allow nor accept their lord & god , for the samaritans draue him out of their cities , the gergesites banished him out of their country , and in ierusalem his owne citie , the iewes crucified him , preferring barabas the murtherer , before iesus their sauiour . yet cyrus king of persia , caused it to be proclaimed by writing throughout all his empire , that the lorde god of heauen , had commaunded him to build him a house at ierusalem in iudah , confessing that he onely is the god that is at ierusalem ; and therfore cyrus commanded the israelites to build their temple againe . artaxerxes , surnamed long hand , made the like lawe for repairing of the temple of ierusalem . nabuchodonozer published a lawe that he should be torne in peeces , and his house made a iakes that blasphemed the god of israel , but before he said , what god can take you out of my hand , at what time holofernes said , there was no other god but nabuchodonozer . darius medus made a streight lawe , that all dominions and people should feare the god of daniel , but before he proclaimed an edict , that whosoeuer desired any petition , either of any god or man , within . dayes but of himselfe , should be cast into a lions den , so that daniel was found against the statute praying to his god , and was cast into the lions denne . king agrippa all in cloth of siluer , glistring garments , making an oration to the people vpon the theaters at caesaria , because hee suffered the people to flatter him , and to say it is the voice of god & not of man , which as thucidides saith , is one of the three most dangerous enemies to ouerthrow a common-wealth : this king in the very face of these his flatterers , was presently so tormented with such pangues of death , that dying hee spake to the people , see whom you called a god a little before , dieth now like a most wretched man , like bel the god of nabuchodonozer , who after that daniel tooke pitch , fat , and haire , and did seethe them together , and put it in bels mouth , god bel burst in sunder , of whō daniel said , behold your god bel whom you worship , for the greatest king is like an earthen vessell soone broken , a spider is able to poyson him , a gnat is able to choake him , and a little pinne able to kill him , this is the greatest glory that man can bragge of himselfe . in the third regiment is set downe the idolatry and superstitiousnesse of the israelites , compared by application with the customes and lawes of the gentiles , in egipt the mother of all idolatry , from whence the grecians , the romanes , and all the world were instructed to serue straunge gods , they had most sumptuous temples of marble and of iuory , bedect with gold & siluer most richly ; but such ridiculous gods were in egipt , as apes , dogges , crocodiles , calues , oxen , serpents , and cattes , that euery seuerall citie in egipt , had a seuerall beast for their god , in memphis a bull , in heliopilis an oxe , in medeta a bucke goate , in the citie of elephantina a crocodile , and so of the rest . and therefore the greekes scoffed the egiptians , for that there was no beast so vile but they would make him a god in egipt , and none but beasts were gods in egipt , the grecians gods were carued & made like men . the romains made themselues gods , as domitianus , after he decreed to be called sonne vnto pallas , was not contented therwith , but would be called dominus deus domitianus . so caius and other some of the later caesars , would bee called sonne vnto iupiter , others brothers to the sunne and moone , which both augustus caesar and tiberius refused to be honored with those names though they were offered ; others would haue their image set vp in the temple at ierusalem ; but woe be vnto him that saith vnto a peece of wood , arise , and to a dumbe stone , stand vp . and therefore the prophet saith , confundantur omnes qui adorant sculptilia , & gloriantur in simulachris suis. wee are forbidden to bring rubbers and napkins , and to holde a looking glasse to iuno , for it is not pauls napkin , peters shadow , elizeus staffe , moses rodde , nor elias mantle , but the lord god of elias , as elizeus said . when pilate the romane president was commanded by tiberius the emperour , to set vp his image in the temple of ierusalem , some of the best of the iewes went to caesaria to pilate , requesting with teares , that hee would not violate the temple with images , pilate aunswered , caesars image must be set vp , or else you die for it , they presently offered their neckes bare to be cut off , before theyr lawe should be broken , or the temple violated with images . the like commaundement had petronius from his maister cai. caesar , to set vp his image in the temple , but in like manner as before to pilate , the iewes came with their wiues and children to entreate petronius , who told them as pilate did , that the image of caesar must bee set vp in theyr temple , as other nations suffered the romaine emperours images to bee set in their temples among their gods , as fellowes to theyr gods , or else they must dye for it , the iewes answered petronius , that all the iewes in iudah , men , women , and children , shall and will dye before the lawe shall be broken . thus were they so slaine and killed betweene the romaine emperours and the kings of assyria , that their bloud was shed out like water on euery side of ierusalem , and yet would they not allowe images , nor haue theyr lawes broken . the romaines had no images for . yeares , though afterwards they had in their closets diuers images which they worshipped as goddes , they had also houshold and peculiar gods at their gates , and in theyr entries , besides the images and statues of themselues and of their friends , so that the romaines so esteemed images , that in the time of the late caesars , theodosius the emperour thought to destroy antiochia , for the pulling downe of the image of his friend placilla , had not macedonius perswaded him to the contrarie . so agrippa for his woman drusilla despised paul. among the iewes one theudas a magitian tooke vpon him to be the messias , perswaded the people that he was that prophet which they looked for , and that he was able with a word to deuide the riuer iorden into two , and to giue him and his company place to passe through , but he was slaine and his company , and theudas head brought to ierusalem by cuspius the romaine president . an other after theudas , called attonges a shepheard , affecting the kingdome , made himselfe the messias . and after attonges one barcosma , who tooke vpon him to be the messias , whom the iewes so affected and followed thirtie yeares , and when they perceiued hee could not keepe promise with them in vanquishing the romanes , the iewes slew him . but as the israelites offered the bloud of beasts , and sprinkled theyr aultars , according to the lawe of moses , so the gentiles imitated the hebrewes , offered also bloud , but the bloud of theyr seruants and children . the heathens thought no bloud too deare to please their gods . for the romains were admonished out of the bookes of the sibils , which they more honoured and esteemed in rome , then the bookes of the prophets were in iudah , as it may seeme by torquinius priscus , who bought them so deare , and after were more carefully kept , then zedechiah king of iudah kept the lawes of god , for hee did burne and teare the booke which ieremiah sent to him from the lord , without any dread or care had of the prophet , so that the bookes of the sibils were more reuerently kept , and their lawes obserued in rome , then the bookes of the prophets in ierusalem . so zedechiah the false prophet was preferred by achab before michaeah the true prophet of the lord , and baals priests before the lords prophets . the romanes had their warrants from the bookes of the sibils , to sacrifice vnto iuno a quicke man buried , as the grecians were wont to sacrifice to bacchus . the phaenizians and the carthagineans sacrificed to saturnus with infants bloud , the laodicians sacrificed a young virgin vnto pallas ; so the lacedemonians sacrificed to mars with bloud ; the old germanes to mercurie with bloud . these sacrifices of bloud were contrarie to the lawe of licurgus , taught among the lacedemonians , and after by numa pomp. imitated in rome in all his lawes , taught to him by the nimphe egeria , as licurgus lawes were taught to him by apollo in delphos . yet pythagoras brought this lawe of licurgus , after numas time , from greece to other parts of italy , for it was pythagoras lawe according to licurgus , that nihil animatum dijs litetur , that no bloud should be sacrificed , but fruites , hearbes , flowers , meale , milke , honie , and wine , which was the lawe of licurgus among the lacedemonians . the romaines as cicero said , had their temples made to pietie , faith , vertue , and to the minde , as degrees and steppes to ascend vp to heauen , but by the same lawe of cicero , they were forbidden to build any temples to any prophane vice , contrarie to the greekes , and to the egiptians , who allowed all kinde of theyr countrey gods , but yet would allow no straunge gods . it was the chiefest poynt among all heathen princes , to bee carefull of their religion . oportet principem saith aristotle , ante omnia , res diuinas videre curari . for in pauls time when he came to athens and sawe so many gods , and so many aultars , paul waxed angrle to see one aultar to lust , an other to shame , and another to an vnknowne god , after he had disputed with certain philosophers of the stoiks and epicures against theyr gods and their aultars , he had no other commendations of the philosophers in athens , but to be called spermolagos , a teacher of straunge doctrine . among the iewes the punishment of idolators was , to bring them to bee stoned with stones to death , beeing lawfully conuicted with two or three witnesses , and the handes of the witnesses shall be first vpon them to kill them , and the handes of all the people . i neede not goe out of iudah for examples to the gentiles in following straunge gods , in committing idolatrie , and in forsaking the lawes of the lord. manasses built aultars in the house of the lord for all the hosts of heauen , gaue himselfe to witchery and forcerie , vsed them that were soothsayers , and had familiar spirits , and caused his sonnes to passe through fire in the valley of hinnon . wicked ahaz king of iudah , made an idolatrous aultar , sacrificed & offered the bloud of his son through fire to moloch . so wicked achab offered the bloud of his sonne likewise in tophet , to moloch , following the king of moab , who sacrificed his sonne that should haue raigned next after him king , to please his idoll chemosh . thus the kings of iudah and israel prophaned the lords aultar with the bloud of their owne children to please their dumbe idols . yet pythagoras and vlixes , two heathens , sacrificed to vrania , but with water and hony mingled , according to numa pomp. lawe , which commanded that no bloud should be offered in sacrifice , but milke and hony . no doubt the gentiles imitated these wicked kings of iudah in their sacrifices , in their vowes , and in the dedicatiō of their temples and aultars , taking abraham for their warrant in sacrificing his sonne isaac , and ieptha in sacrificing of his daughter , for their idolatrous sacrifice , in murdering their children , as is said before of achab , manasses , and others . the ammonites had a great image called moloch , which had seuen chambers within the hollownesse of it , one to receiue meale , the second to receiue turtle doues , the third a sheepe , the fourth a ramme , the fift a calfe , the sixt an oxe , and the seuenth a man. this idoll had the face of a calfe , with stretched out hands to receiue gifts , certaine samaritan priests called chemarims , attended vpon this idoll moloch , & though i know well that graue & godly iudges are not acquainted with molochs reaching hand , nor with his chambers , yet i doubt some like chemarims , that liue in the world and serue moloch , attend more vpon the reaching hand of moloch , and his hollow chambers , then their maisters becke in true seruice , to whom may bee said , as christ spake to nicodemus , art thou a maister in israel , and knowest not how to be borne againe ? euen among the persians cambises though a tyrant and a wicked king , yet would he haue the persian lawes obserued , for the breach whereof hee caused one of his iudges named sinetes , corrupted with money , to haue his skinne fleyed from his backe , and to be made a carpet for his sonne that succeeded after him to leane vpon to put him in remembrance of his fathers corruption , and punishment by the law , that his sonne therby might better obserue the lawe , remota iustitia regna magna latrocinia sunt . darius king of persia caused sandoces one of his iudges , for that he was corrupted with money to iudge vniustly against the law , to be hanged and codemned by the lawe , in that very place where hee was appointed to be a iudge . of these corrupt iudges , and of the like , the prophet saith , dextra eorum repleta est muneribus . these and such lawiers and iudges that oppresse poore widowes and orphants , robbe the poore & are corrupted with rewards , cannot be hold the brightnesse of moses face , without a vaile to couer their face . these are the lawiers of which the prophet speakes , that turne the lawe to wormewood , righteousnesse , to bitternesse , and cast downe iustice to the ground , for nihil tam ven●… quam aduocat●…m praesid●… , saith aristotle . and therefore the prophet esay reprehended the iudges of israel , and called them companions of theeues , following after gifts and rewards as samuels sonnes did , he called them tyrants of zodome , and people of gomorah , learne to do right saith the lord , apply your selues to equitie , let the widdowes complaint come before you , and helpe the fatherlesse to his right . this is the lawe onely of the lord , these be the precepts and summe of all lawes , to liue honestly , to hurt none , and to giue to euery man his owne , for where good kings rule and raigne , there lawes are obeyed . iudges ought to doo righteous iudgement , they ought to accept no persons , but iudge according to the lawe of the people , they should heare the small and the great alike , neither accept the face of the poore , nor feare the face of the mightie , for that iudgement is the lordes , therefore iudges are called goddes , for the lawe commaundeth that thou shalt not raile vpon the magistrates , neither curse the ruler of the people . so homer saide , ex ioue sunt reges . to that effect dooth plato likewise say , deus quispiam humanus rex est . what lawe had then nabuchodonozer to say , what god is hee that is able to take iudah out of my hand ? or holofernes to say , there was no god but onely his maister nabuchodonozer , such lawes made domitianus , that he would be called dominus deus domitianus . what lawe had king zedechiah to answere his nobles that sought the prophet ieremies death , take ieremie and do with him what you list , it is not lawfull for me to denie you any thing . the like lawe and the like words vsed king ashuerus to ammon , who sought the destruction of the iewes throughout all the kingdome of persia ( age quod placet ) do what thou list with the iewes . the like lawes vsed darius at the request of his persian princes , to throwe daniel the prophet of the lord to be deuoured of lyons ; these are the lawes of tyrants and not of kings , to kill the prophets of the lord without lawe , they forget the lawe of the lord written by esay the prophet , woe be vnto you that make vnrighteous lawes , and deuise lawes which are hard to keepe , and are not to be kept , that thereby the innocents are robbed of iudgement , such a lawe made iezabel for naboths vineyard with false witnesse . these kings like tyrants , vse the sword for bloud , and not the scepter for iustice , like pharao , to whom when moses alledged all the lawes of the lord , hee said , who is the lord ? nescio dominum , i know not the lord , like lysander of sparta , who said to a lawier that pleaded lawes and customes on their sides , he pleadeth best in lawe which pleadeth with this , said lysander , laying his hand on his sword , for this penne doth write with bloud . sileant leges inter arma . so also pompey the great said , what prattle you to vs of your lawes , when wee haue our swordes in our hands . who doth warrant the sword but the lawe ? who defends the lawe but the sword ? he that commaunded peter to put vp his sword in his sheath in mount oliuet , was euen he that commaunded ioshua to pull his sword out of his sheath to destroy the canaanites : the first commaundement that was giuen to man after the creation , was the lawe , and vpon breach of the lawe , was the sword giuen to reuenge iustice , for the lord is iust , for as lawes are made by god , and ministred by angels vnto men , so must lawes be obeyed with reuerence , and defended with the sword , prudentem dicemus sibi & reipub ▪ consulere , potentem , & validum . so plato saith , that he is valiant and wise that can both with the sword and the law defend a common-wealth . in egipt it was not lawfull for any heard-man to come within their temples , neither among the hebrewes was it lawfull for men or women that had any white or blacke spottes , somewhat reddish , or pale , to come among the congregation to the temple , for the priests should pronounce them vncleane . so among the persians by the lawe of their magi , none that had any pimples or red speckes on their face , might touch the aultar , or offer any sacrifice to their gods , for in persia they had neither temples nor images , but among the persians and the arabians laid fire vpon the aultar in a vessel called arula , and offered frankinsence in sacrifice onely to the sunne , for the gentiles trimmed their aultars diuersly , the aultar of iupiter with oaken branches , the aultar of appollo with lawrell , the aultar of bacchus with iuye , the aultar of hercules with popley , and of pluto with cypresse , so were the aultars of minerua with oliue , and of venus with myrtle , so that there was no seruice omitted , no dutie forgotten , no lawe broken in the superstitious and prophane religion of the heathens . so fond and superstitious were both the athenians and the romaines , that the athenians builded temples out of athens , to pouertie and old age , because they would faine expell these aged and poore gods out of athens , or else to put the athenians in remembrance that they should pray vnto them , least they should come to pouertie and to want . the romans and egiptians builded temples to those gods that might annoy their cities , out of their cities , as the romanes builded the temples of bellona & mars foure miles out of the gate capaena in rome , to re●…ist and withstand the trecherie and violence of their enemies . the egiptians builded the temples of saturnus and serapis out of the cities , as gods to watch , ward , & to defend their cities from the enemies , and least their gods by inuocation or supplication of the enemies should forsake their cities , the romanes bound fast the image of mars , and the carthaginians hercules . see how blinde men in religion , are ignorant in gods seruice , and yet ignorance with some late learned men , was termed the mother of deuotion . the lord commaunded israel to serue no straunge gods , but him onely , and to come at three appointed feasts in the yeare to one place in the citie of ierusalem , to serue him , and to sacrifice in one temple , the temple of salomon ; for as the lord made choise of one nation to be his peculiar people , so hee made also choise of one place ierusalem , where his name should bee worshipped and called vpon . after that the tabernacle was set vp , & the arke of testimonie set therin , the lord commanded moses to bring aaron and his sonnes vnto the doore of the tabernacle , and there to wash them with water , & after to put vpon aaron the holy garments , to annoint him and 〈◊〉 him , that he might minister in the priests office . the gentiles vsed the like ceremonies at the first co●…crating of any tēple , which they dedicated to their gods , that they should lay their hands vpon the porch poste , calling vpō the name of that god , to whō they consecrated the temple , for whatsoeuer the gentiles dedicated to their gods ( though prophane before ) yet after they were cōsecrated , they were , sacra diuino cu●… mācipata ; ci●…er temples , aultars , mony , religious places , or otherwise . for among the romains & the grecians , the dumbe , deafe , blind , lame , or maimed otherwise by nature , were reiected from any office in the temples of their gods . so was it among the persians in like sort , that no blinde or maimed man should minister vnto their gods . whence had they all these originals , but ( as it seemeth ) from the lawe of moses ? and as moses was commaunded that aaron and his sons should be first washt with water , before they should put on their holy garments and minister vnto the lord ; so the priests of egipt should often wash and annoint themselues , before they should serue and sacrifice in the temple of isis. so the priests of greece washt and annointed themselues before they would sacrifice vnto ceres . and so among the romanes & in other places , they seemed ( though they erred much ) to imitate the ceremonies of the iewes , who had their warrant from the lord , and they from the diuell . moses put on aaron the coate , and girded him with a girdle , cloathed him with the robe , and put the ephod on him , after he put the brest-plate thereon , and put in the brest-plate the vrim and thummim ; he also put the golden plate and the miter vpon his head , and vpon the miter the holy crowne , as the lord had commaunded moses , and he powred of the annointed oyle vpon aarons head and annointed him , that the excellencie of his calling might be knowne , and the dignitie of his office present the maiestie of the highest . hence the heathens and the gentiles tooke their platforme , as an example to be followed in the annointing and crowning of their kings , by the lord warranted and particularly set downe to moses , whereby you shall find by comparison , that the prophane ceremonies of the gentiles tooke their originall from moses lawe , in the annointing of their kings . in the fourth regiment is shewed , how the gentiles confirmed their lawes by diuers authorities , faining that their la●…s were giuen to them of their gods , with the straight keeping of the same . there was no lawe among the gentiles made nor established , vnlesse they were authorized and confirmed by some diuine power to satisfie ignorant people , for the heathens most preferred that lawe , and esteemed that gouernment , which was commaunded and allowed as it were , from the gods , as by mercurius in egipt , by iupiter in greece , and by appollo in sparta , as you heard before . so among the locreans , their lawes were authorized by minerua , among the getes by the goddesse vesta , and so the lawe which sergius compiled to the turkes , to this day the turkes holde it authorized and confirmed from the very mouth of their great prophet mahomet . and for that a sperhawke brought in her clawes a booke written with red letters to the priests at heliop●…lis in egipt , containing the lawes and religion of theyr gods , the priests therefore euer after ware red scar●… caps , like the colour of the letters , & the feather of a sperhawke in their caps , in memorie thereof . so no warre was commenced , nor battell taken in hand without such policies to intice and allure the souldiers to fight , as sertorius had his white hinde , which he taught to follow him in his affrican warres , by whom he made his souldiers belieue hee was instructed to d●… any thing he did . so lu. sylla would take vpon him in the sight of his souldiers , to consult with the picture of appollo , to make his souldiers more obedient and valorous . so did marius with his scythian woman martha , and so of others , which i spake of in my booke of stratagems , and now to the sabboth . the obseruation of the sabboth , was seuerely by the lawe of the iewes kept , for the lord blessed the seuenth day and hallowed it , to rest from our workes , a●…d to serue the lord , signifying vnto vs our eternall rest to come : and therefore the iewes gathered vpon the sixt day in the wildernesse , so much manna as serued them vpon the sabboth , because they should not breake the sabboth . as the lord iesus was crucified on the sabboth eue , and rested in his graue the sabboth day , so careful were the iewes to obserue the sabboth , that the holy womē that followed christ , with their odors , ointments , and spices , staied from the annointing of his body vpon the sabboth , for the sabboth was made especially , that they should cease from labour , and come to heare the lawes of the lord , and the voices of the prophets , which are read euery sabboth day in the temple . after the destruction of the temple first builded by salomon , the lord stirred vp cyrus for the second building of the temple , and to deliuer all the vesselles of golde and siluer , which nabuchodonozer had taken out of the temple of ierusalem , to be placed againe in the house of the lord at ierusalem , according to the prop●… sie of esay , two hundred yeares before cyrus time . after cyrus , darius and artaxerxes , kings of pers●… , commaunded in like manner that the temple which was hindred for a time by meanes of the samaritans to cambises and others , should be with great diligence b●…ded , and all the vessels wich king nabuchodonozer too●… away , should be according to cyrus , darius , and a●… erxes , three mightie kings of persia , againe restored to ierusalem . among the grecians the first day of euery moneth was their sabboth , called among them ( as among the iewes ) neomenia , which they kept most solemnly & serued most religiously their gods . among the romanes the nones and ides of eu●… moneth were their sabboths , and obserued as religious daies , on which daies they would commence no bat●… , but as a sabboth to serue their gods ; for on the ides of euery moneth throughout the yeare , the romanes 〈◊〉 great solemnities , with diuers sacrifices and religious ceremonies . among the parthians they obserued the very day that arsaces ouerthrew zaleucus to bee theyr sabboth , for that they were restored on that day to theyr libertie by arsaces , which daye they keepe as a religious day , and vse great solemnitie in memorie of their libertie . the day that cyrus ouercame the scythians , was one of the sabboths of the persians , which they call sacas . and an other sabboth day of the persians , had on the very day that their rebellious magi were slain that would haue vsurped the kingdome , in memory whereof they consecrated a feast called magoph●…niah , the which day was so solemne a sabboth among the persians , that it was not lawfull for any of the magi , that day to goe out of his house . the victories at marathon and at micala ouer the persians , was the sabboth of the athenians , for among the heathens the dayes of their victories and triumphs , the dayes of their liberties restored , and of their feasts ; were their sabboths ; for as it was not lawfull among the iewes to fight vpō the sabboth day , so among the heathens they straightly obserued their religious dayes as their sabboth . phillip king of macedonia , vpon the very day that his sonne alexander was borne got two victories , the one was with his mares in the games of olympia , and the other with his men of armes in thracia , for memorie whereof , hee decreed an annuall feast to bee made , which was obserued for a sabboth among the macedonians . the iewes so obeyed and reuerenced their lawes , that they would not breake theyr sabboth daye , in so much that they suffered theyr enemins to kill and ouerthrow them , because they would not fight vpon the sabboth day , so did they when they began to build the temple , before they would build houses to dwell in , or walles to defend them , but euery man readie with weapon in one hand for their enemies , & working with the other hand . nicanor going to strike a fielde with iud. machabaeus vppon the sabboth daye , was willed to hallowe the sabboth , who said , is there a god mightie in heauen that commands to keepe the sabboth day ▪ and i am mightie on earth that commaund the con●…ry , but nicanor lost the battell , and his life in the battell , and his head , his hands , and his blasphemous tongue were cut off , and hangd on the pinnacles of the temple at ierusalem . nehemias finding some israelites prophaning the sabboth day , in carrying burthens , he tooke them and rebuked them sharply for prophaning of the sabboth day . so straightly the iewes obserued their lawes , that he that gathered but a fewe stickes vpon the sabboth day , was taken and brought to moses , and moses brought him before the lorde , and sentence of death was giuen vpon him by the lord , for breaking of the sabboath , saying ; let him bee stoned to death by the people . such reuerence & obedience the iewes had to moses lawe , that when alexander the great commaunded the high priest to aske him whatsoeuer he would haue him to do , whereas he might haue had territories and countries giuen him , hee requested but the liberties and lawes of his countrey to the poore iewes that did inhabite within asia , and all the dominions of alexander . so did the iewes that dwelt in greece , in asia , and in antioch , requested of zaleucus and antiochus the great nothing but that they might liue , and enioy the benefites of the lawes of their countrey , which is the lawe of moses . neither could the iewes endure any that would despise theyr lawes , for a souldier vnder cumanus the romane president , for tearing of moyses bookes in contempt , mooued suche sedition , that they came armed to cumanus , and claimed to haue iustice executed vpon the souldiers that so despised their law , for the tearing of one leafe . the like sedition moued an other romane souldier vpon the feast day of the iewes by shewing his genitall parts , scoffiing and flowting theyr lawes and religion , so that cumanus to satisfie the iewes , put both the romaines to death , to the losse of twentie thousande iewes by the romaine armyes afterwards . the iewes suffered many ouerthrowes most willingly vpon the sabboth day , saying : moriamur omnes , because they would resist neither pompey the great , nor antiochus king of syria vpon the sabboth , a●… the romaines and the syrians euer found mea●… to fight with the iewes vppon the sabboth daye , on the which daye pompey the great tooke ierusalem . therefore iud. machabaeus made a lawe , that to fight vppon the sabboth day , in defence of theyr lawes , of theyr countreys , and of theyr liues , was no seruile worke , but thought it lawfull to fight vppon the sabboth daye with nicanor a blasphemer , and an enemie of the lorde and his armye , and so ouerthrew nicanor , and slew nine thousand of his host , so that vpon the sabboth day any man may do good . so christ aunswered the israelites for his disciples , beeing accused that they brake the lawe in eating the eares of corne , haue you not read what dauid did when hee was a hungrye , to eate the shewe bread , which was not lawfull but onely for the priests : so he also answered for himselfe , beeing accused of the israelites that he brake the lawe in healing the 〈◊〉 vpon the sabboth day : which of you said christ will not loose his oxe or his asse from his cribbe vpon the sabboth day to water them ? the sabboth day is the schoole of the lord , in the which he would haue his people taught and instructed , not onely to heare the lawes read vnto them , but to learne the lawes , and to liue according as the lawe commaundeth them , to that ende was man created that hee should bee the temple of god , where the lord might dwell and raigne within him , and that the lord should be our aultar , vpō the which we should offer our selues vnto him in sacrifice , both in body and ●…ule . among the heathens the sabboth of the lorde was not knowne , for that they knew not the lord of the sabboth : this commandement pertained onely to the children of the lord the israelites , to whom the law was giuen in hope of eternall rest . the restoring to their libertie , their victories , their triumphes , theyr feastes , and the dayes of their birth , these were the sabboths of the gentiles , to serue , to giue thankes , and to sacrifice to their gods , as before 〈◊〉 written , but the lord spake to israel , you shall not obserue time to make some dayes luckie , and others vnluckie , as the gentiles did , but only obserue your sabboths ▪ and to come to the temple to heare the lawes of the lord read . when hanibal departed out of italy , the temples were set opē according to the custome of the roman●… that they might goe and giue thanks to the gods for the vanquishing of such an enemie . archidamus began first with seruice and sacrifice to the gods , before he would attempt any great battel with the enemie . xenophon before hee had gotten his whole armie reconciled , and willing to craue the fauour of the gods in any distresse , hee would take no iourney in hand . the gentiles obserued times , dayes , and moneths , as the kings of macedonia commenced nowarre during the whole moneth of iune . the romans likewise obserued the nones of euery moneth as vnluckie and religious dayes , and refrained that time to take any great thing in hand . the germaines also had a lawe not to fight any battell in the wane of the moone , much like the lacedemonians , who were forbidden by licurgus lawe , that they should take no warre or battell in hand before the full of the moone , they were therein so religious , that they absented from the battell at marathon foure dayes . the romans also would enter into no field , neither wage any battell vpon their religious dayes . cai. caesar in his warres against ariouistus , king of the germaines , knowing that the germaines hadde a lawe set downe , that it was not lawfull for them to commence any battell in the wane of the moone , caesar obseruing the germaines to bee so religious , gaue them a battell vnexspected , and ouerthrew them . so titus vespasian vpon a satterday , the sabboth of the iewes , subdued the iewes , destroyed the temple , and tooke ierusalem , as pompey the great did before . before the temple was builded in ierusalem by salomon , the israelites came to siloh , where the taber●…cle rested , to offer to the lord , as after they did to ie●…salem . in this temple at ierusalem , the lord promised to salomon , that he would present himselfe , and appeare at the prayer of salomon , as hee promised to moses in the wildernesse to appeare at the doore of the tabernacle , to comfort them , and to further them in all theyr lawes . the angels that brake the lawes of the lord in heauen , were condemned , and had iudgement giuen to bee prisoners in perpetuall darkenesse , and man that brake the lawe in paradise , had sentence of death pronounced against him by the lorde himselfe in paradise . and therefore licurgus to haue his lawes continue among the lacedemonians , to performe the oracle of appollo , which was , so long should the lacedemonians keep licurgus lawes vndefiled , as long as licurgus should keepe himselfe absent from the lacedemonians , and therefore most willingly banished himselfe out of his countrey to dye in delos , that by his absence the lawes which he established amōg the lacedemonians should continue , his lawes therefore continued . yeares and more after his death . the contempt & breach of lawes in all countries were seuerely punished , in so much that charondas made a law to the carthaginians , archadians , & others , that they that found fault with paenall lawes , should be crowned with tamarisk , and be carried round about the towne , and so thence to be banished , according to the lawe of the . tables , violati iuris paena este . and therefore antalcidas accused agesilaus for the breach of licurgus lawe , for that he taught the persians by often warres to become men from women ; non diù in hos bellaadum ne ipsi bellicosi euaderint . charondas made an other lawe , that if any that were cōuicted , thought his lawe to be too seuere , they might vpon condition make meanes to the people for abrogating of the lawe , the condition was , they should come with halters about their neckes , before all the people in one place assembled , which if they by complaining of the seuerities of the lawe , should goe free , the former law should be abrogated , or mitigated , but if they falsly accused and slaundered the integritie of the lawe , they should be strangled with the same halters which they ware about their necks , to accuse the law , for the words of the lawes of the twelue tables which agree with charondas lawe are these ; legum iusta imperia sunto , hisque ciues modestè & sine recusatione parento . and yet it is necessary vpon occasions that lawes should be altered , for saith hypocrates , tempus est in quo occasio , & occasio in qua tempus , though he applied this to phisicke , yet in the selfe same reason it serueth for the lawe . cicero thinketh the life and manners of good men often changed , to be the cause of changing of the lawes and states of cities ; and plato , whom cicero calleth deum philosophorum , said , that the least lawe made , may not be chaunged nor abrogated , without doing hurt or harme to the publique state of a common-wealth ; and therefore in aegina he was euer accounted accurst , that went about to make new lawes , by abrogating the former . for when lysander went about to alter and change licurgus lawes among the lacedemonians , hee was resisted by the senators and the people , though lysander was the onely chiefe man in sparta . likewise the whole summe of aristotles aeconomicall and politicall lawes , are but instructions teaching the rule and gouernment of a common wealth , iubendo & parendo , how men should know to doo good , and auoyd to do euil , to gouern and to be gouerned , that the people should be defended from wrong , so is the law of the twelue tables , vis in populo abesto , causas populi tencto . and therefore positiue lawes in all countries were and are made from the beginning to maintaine ciuill orders , and to determine of such orders and circumstances as are necessary and requisite for the keeping of the people in obedience of the same . of these and such lawes plato wrote his booke de repub . tending to the administration and gouernment of the people , according to the lawe . the morall lawe commaundeth a iust and vpright ordering of iudgements , contracts , and punishments in a common-wealth . alexander seuerus the emperour , therefore would make no lawes without the iudgement of . of the best learned ciuilians , with the aduise and consent of . of the grauest and wifest councellors that were within his empire , to examine whether the lawes were iust & profitable for the people , before they should be published , but being once published as a lawe , extreame punishment was appointed for the breach thereof , as is before spoken , without any appeale frō the lawe , without some great extraordinary cause of appeale . as among the hebrewes in any citie of iudah , that if they could not rightly iudge , nor discerne throughly the cause , according to iustice , by the magistrates of the citie , they might appeale to the iudges named sinadrion in ierusalem , from whence no appeale could be had . so among the grecians , they might appeale from the areopagites in athens , from the ephories in sparta , and all other cities of greece to the amphictions at trozaena , which were appointed general iudges for the vniuersall state of greece , in martiall and military causes , and there to sit and determine twise a yeare of the whole state of greece , and further to heare and to iudge of some other great causes and capitall crimes , from whose sentence no other appeale was to be had ; for out of euery citie in greece in the spring and in the autumne , to the amphictions at trozaena they sent embassadors , whom the greekes called pytagorae . so among the romanes a lawfull appeale might be had from the consuls to the senators , from the senators to the tribune of the people , and from the people to the dictator , which continued vntill the time of the iudges called centum viri ; for sententia dictatoris , & iudicia centum viralia , were both lawes of life and death , from whose iudgement and sentences , there were no greater iudges to appeale vnto : of the like authoritie were the decem viri , from whom also there was no appeale during their gouernment . so in diuine causes we may appeale to mount sion from mount sinai , from the lawe to the gospell , from moses to christ our perpetuall dictator , from whom we haue no place to appeale vnto for our eternall saluation . in the fift regiment is declared the choice of wise gouernours to gouerne the people , and to execute the lawes among all nations , and also the education and obedience of theyr children to their parents and magistrates . all nations made their choise of the wisest and chiefest men to rule and gouerne their countrey , imitating moses , who was by the lord commanded to choose seuentie wise graue men to be iudges among the israelites , called synadrion , which continued from moses time who first appointed these magistrates , vntill herods time who last destroyed them , for in euery citie of iudah seuen magistrates were appointed to gouerne , and to iudge according to the law of moses , and for their further instructions in the lawe , they had of the tribes of the leuites two in euery citie ; to instruct and assist the magistrates in all actions according to the lawe . the egiptians being next neighbours to the hebrewes , though they mortally hated the hebrewes , yet theyr gouernment of dinastia vnder thirtie gouernours elected and chosen out of eliopolis , memphis , pellusium , thaebes , and other chiefe cities of egipt , seemed to imitate moyses lawe vnder aristocratia . so solon appointed in athens certaine wise men called areopagitae , as iudges to determine of life and death , and of other criminall causes . among the old gaules , the druydes sage and wise religious men , had authoritie both in warre and peace to make lawes , and to determine of the state of theyr countrey . the lawes of all nations against disobedient children to theyr parents are manifest , not onely the lawe of nature among all nations vnwritten , but also the diuine lawe of the lorde written , commaundes children to bee obedient to theyr parents , as the lawe sayeth , whosoeuer curseth his father or mother shall dye , and his bloud bee on his owne head , for that hee curseth his father or mother . if a man hath a sonne that is stubborne or disobedient , let his parentes bring him vnto the elders of the cittie , and there accuse him of his faultes , saying , my sonne is a ryotour , a drunkarde , and disobedient vnto his parentes , the lawe is , that all the men of that cittie shall stone him with stones to death . this commaundement was esteemed among all nations , euen among wicked men , as esau beeing a reprobate , so the lorde saide , esau haue i hated , and iacob haue i loued , yet esau hating his brother iacob in heart , saying that the dayes of his fathers sorrowes were at hande , for i will kill my brother , and most like it is that he would haue done so had not the lorde ( which appeared to laban the syrian in a dreame by night , for that hee followed iacob from mesopotamia ) said to laban , take heed to thy selfe , that thou doo or speake to iacob nothing but good : as the lorde kept iacob from laban , so he kept him from his brother esau. notwithstanding esau came to his father , and said , hast thou any blessing for me ? see that obedience and feare was in esau towards his father isaac , though hee was a wicked man , he determined not to kill his brother before his father died , least isaac his father should curse him . the sonnes of samuel the prophet , ioel , and abiath , which were made iudges in bersabe by rheyr father samuel , beeing olde , they turned from theyr fathers wayes , tooke rewards , and peruerted the right , the people complained to samuel that his sonnes followed not his steppes , and therefore they would haue a king to gouerne them , as other nations had . see the ende of iudges in israel , by the wicked iudges ioel and abiath , two wicked sonnes of a good and godly father , and the cause of the ouerthrowe of the iudges in israel . the two sonnes of eli , their offences were such , that their father being an olde man , was rebuked of the lord for suffering their vnthriftinesse and wickednesse , which was the cause that the priesthood was taken from the house of eli for euer , so that the gouernment of iudges in iudah , and also of the priesthood , were taken away by the corruption and disobedience of wicked and vngodly children . obserue likewise the end of kings and kingdomes by wicked kings , by ahaz who offered his sonnes in fire to moloch , by ioachim and his sonne , wicked fathers , which brought vp wicked sonnes . the kings which were . in number , continued fiue hundred and odde yeares . who would haue iudged that three such good kings of iudah , should haue three such wicked children ? as dauid had absolon , who sought most trecherously to dispossesse his father of his kingdome . as ezechias had manasses , who offered his sonne in fire to moloch , and filled ierusalem with bloud . or as iosias had ioachim , whose wickednesse together with zedechiah , was so disobedient to the lord and his prophets that he lost the kingdome of iudah . who would haue iudged that salomon the onely wise king of the world , hauing . queenes , and . concubines , and hauing but one sonne which is read of , and that so wicked , that through his wicked and cruell dealing to his people , the lord tooke . of the . tribes of israel away from salomons sonne , & gaue them to ieroboam , salomons seruant . it was a commaundement giuen from moses to the people , that they should not forget the lawes of the lord but teach them to their sonnes , and their sonnes sonnes , and therefore the lawes were commaunded to be set as frontlets betweene their eyes , to bee written vpon the postes of their houses , vpon their gates , and to bind them for a signe vpon their hands , that their children should not forget , but be instructed by the sight thereof in the lawes of the lord. for the olde pharisies were wont to weare philacteria , which were scrolles of parchment about their heads and armes , hauing the tenne commandements written on them , & therefore christ pronounced so many woes against the scribes and pharisies for their hipocrisie . hence grew the beginning of setting vp of pictures in porches , the images of philosophers in schooles and vniuersities , and the images of the goddes in the temples and secret closets of princes , as alex. seuerus had the image of christ , abraham , orpheus , and appollonius in his closet worshipped as gods , so the heathens and pagans had the images of their countrie gods set vp at theyr gates , galleries , and closets . among the olde romanes in auntient times they were buried in theyr gardens , and in theyr houses , and therefore they had their houshold godeds to doo sacrifice vnto them , and to vse funerall ceremonies vnto these idols , for it was not lawfull by the lawe of the . tables to burie any within the citie , for the lawe was ne in vrbem sepelito ; and it was also platos lawe , that the dead should bee buried in the fieldes or some barren ground , out of the cities , least the dead bodies should infect the quicke . these lawes were called leges funerales . but the lord spake to ioshuah , let not the booke of this lawe depart out of thy mouth , see that thou doo and obserue all the lawes which moses commaunded thee , so ioshuah did , & made a couenant with the people at his death , set ordinances and lawes before them in sychem , and tooke a great stone , and pitched it vnder an oake that stood in the sanctuarie , and said , behold this stone shal be a witnesse vnto vs , and a memoriall of the couenant betweene vs. so iacob set vp a stone , and said to his bretheren , gather stones and make a heape , which hee called gilead , and said to laban , this heape of stones be a witnesse betweene thee and me . it was a custome among the olde hebrewes , as markes of witnesse , and memoriall of things past , to put vp stones , as samuel did in his victorie against the philistines , pitched vp a stone , and named it the stone of helpe . so carefull were the kings of persia , that they made choise of foure principall men in all knowledge to instruct the kings children after fourteene yeares of age , and therefore the persian lawes for education of theyr youth , were not onely commended of many , but of many imitated , they should learne three principall lessons , to take heed of lyes , and onely to speake the truth ; secondly to deale iustly , and wrong no man ; and thirdly to knowe what was wrong and what was iustice . the children in persia were brought vp with such reuerence to their parents , that it was not lawfull for them in the presence of their parents , either to sit , to spit , or to blowe their noses : theyr children might not so much as taste wine , though it were vpon their feast day , which among the persians , is the most solemne feast : also the children might not come to their parents sight before they were seuen yeares olde , there is nothing so requisite in parents as the education of children . and therefore charondas made a lawe , that the citizens which were gouerned by his lawes , should bring vp their children in schooles , to be taught to know good from euill , and to be accustomed with vertuous education , that thereby they might stand in stead to theyr countrey , with wisedome , iudgement , and counsell . the like law is set downe by plato , who saith , si rempub. verè institues , virrtus cum ciuibus comunicanda est . for as euery citie hath her phisitions , to prouide for health , and to care for the bodye , so i thinke it rather better saide chaerondas , to haue schoolemaisters and teachers to bring vp youth in vertue and knowledge , and to bee taught in the lawes of god & man to serue their countrey . diuers nations , as the carthagineans , arcadians , baeotians , and mazacens , sent for charondas lawes to gouerne their countrey , and as the romanes sent to greece for hermadorus to interpret the . tables , so the mazacens sent for one to thuria to interpret charondas lawes . so the iewes after their return from babilon , appointed esdras to read & interpret the law of moses vnto thē , before whom they sware that they would turne away theyr straunge women the ammonites and moabites , and that they would keepe the lawes of the lord. the lacedemonians would make their hindes and husbandmen drunken , hauing roddes in their hands , to whip and beat them for their drunkennesse , and would bring them out before their children & other youths of sparta , which was both plato and anacharsis order to the grecians , because their children might see the faults and beastlinesse of the seruants , to terrifie the children , that thereby they might loath vice , and loue vertue , and learne to bee obedient to their parents , for the greatest care the lacedemonians had , was to bring vp their children in musicke and military discipline , esteeming the education of their chidren in any thing else indifferent . nabuchodonozer king of babilon , caused foure of the kings stocke zedechiah , daniel , and his fellowes , to bee brought vp in the chaldaean discipline , that they might serue the king in his chamber and at his table . in auntient time the olde romanes were not onely studious and carefull to bring vp their children to obserue the lawes of their gods at rome , but also vsed yearly to make choise often of the best mens children in rome , and to send thē to etruria , a religious nation , there to be taught in the etrurian discipline , concerning religion to their gods , and to learne dutie and seruice to their countrey , beeing in the latin tongue instructed first , then in the greeke tongue , and after to learne wise and pithy sentences , as paradoxes and aphorismes . charondas iudged those parents not fit to be of counsell , nor worthy to be magistrates to rule in their countrey , that hauing many children by the first wife , would marry a second , for he supposed that they would neuer be carefull ouer their country , that would not be careful ouer their children . and therefore the lawes of diuers of the gentiles were not to bee allowed in selling theyr children to straunge nations , as the phrygians and others did for to relieue theyr parents for necessitie sake , and yet farre better then to burne , kill , and sacrifice theyr children to images and idols , as ahaz , manasses , and others did . bocchoris made a lawe against idlenesse , for all idle men in egipt were compelled to write theyr names and to giue account how they liued . this lawe was brought by solon from egipt vnto athens , where they gaue the like account in athens as they did in egipt before the areopagites ; for we read that the figge tree because it was barren and bare no fruite was spoyled of his leaues , and therefore the well exercised man is compared to the bee that gathereth honye of euery weede , and the euil sloathful man to the spider , which gathereth poison of euery flower . bocchoris made an other lawe against those that clipt any coine , diminished the waight , changed the form , or altered the letters about the coine , that both their hands should be cut off , for bocchoris lawe was , that those members should be punished that committed the offence . so carefull were the hebrew women for their children , that their fathers should not name them , but the mothers should giue them such names , as should signifie some goodnesse or holinesse to come , as a memoriall to the parents to thinke vpon their children , besides giuing them their names , their naturall mothers should be nurses to their childrē , as sarah was a nurse to isaac her son , zephorah a nurse to her son moses , & the blessed virgin mary a nurse to her sonne christ iesus our sauiour , so the two wiues of iacob , leah , and rachel , gaue names to all their children , the twelue patriarkes , the sonnes of iacob . so iacob corrected his children , kept them vnder , and blessed them at his death , so iob prayed for his children , and offered for his children vnto the lord euery day a burnt offering , and so was dauid for his sonne salomon so carefull , that he committed him to the prophet nathan to be brought vp in wisedome , and in the law of the lord , this care had the hebrewes to bring vp theyr children in the lawe and feare of the lord. the very heathens , euen phillip king of macedonia , was glad to haue his sonne alexander borne in aristotles daies , because he might be brought vp in his house with him , and instructed with so great a philosopher . agamemnon was in his youth brought vp with wise nestor , of whom agamemnon was wont to say , that if he had but ten such wise consuls as nestor was , he doubted not , but soone to subdue troy. and so was antigonus brought vp with zeno , chiefe of the stoik philosophers , where hee could heare & see nothing , but what he sawe and heard from his maister zeno. there bee many parents in the world that weigh not how they liue themselues , neither esteeme how to bring vp their children , like the troglodites , whose children were named after the names of the beastes of their countrey , as horse , ramme , oxe , sheepe , lambe , and such , alledging that the beasts were their best parents , in feeding , in cloathing , and in all other necessary helpes , and therefore they would rather bee named after these beasts that maintained them in life and liuing , then after their parents , who gaue them but bare birth , against the lawe of nature , and therfore they and such are to be called antinomi . i doubt too many of these in many places may bee called antinomi , which degenerate from their parents both in name and in nature , yea from all lawes , rather to be beasts , then to haue the name of beasts , like people in affrica called atlantes , whose children haue no names at all , but as the troglodites were named after theyr beasts , and therefore well called antinomi , so these people leaue their children like themselues without names , not like beasts , but beasts indeed , and therefore well and truly to be called anomi ; for many haue the names of beasts , that be neither beasts , nor like beasts ; for as the troglodites that before their parents preferre beastes against the lawe of nature , are called antinomi , so these atlantes in affrica , worse then beasts , are called anomi , which is without any name . it is much therefore in parents to shewe good examples before their children , for what children see in the parents , or heare from theyr parents , that lightly will they imitate , for the tree is bended when it is tender , the horse is broken when he is a colte , and the dogge taught when hee is a whelpe , so children must be instructed and brought vp when they are young , for that seede which is sowed in youth , appeareth in age , for vertue must haue a time to growe to ripenesse . therfore marc : cato the censor , made meanes to remoue manlius from the senat house , because he wantonly imbraced and kist his wife before his daughter , saying , that his wife durst neyther imbrace nor kisse him before his children , but for very feare when it lightned and thundered . hieron king of cicilia , sharpely punished epicarmus the poet , for that he made and read certaine light verses before his daughter . so was ouid for the like offence bannished from rome , and so was archiloccus from sparta , for saying it was better for a souldier to loose his shield then to loose his life . the children of bethel had they bene well brought vp , they would not haue mocked & flouted elizeus the prophet , they might as well haue said ozanna in excelsis , with the children of ierusalem , as to say , ascende calue ; vp balde fellowe . but true it is as isocrates faieth , that rude and barbarous men , not brought vp in vertue from theyr youthes , should neuer or seldome prooue iust or honest . and so it is written that equus indomitus euadet durus , & filius remissus euadet praeceps . and therefore both the romaines and the grecians were carefull to haue graue , wise , vertuous , and learned men to bring vp theyr children in the feare of god. among the lacedemonians , licurgus lawe was , that expert and iudiciall men should bee founde out , which were named paedonomi , to instruct and teach the youth of laced●…mon , for in three things especially the grecians brought theyr children vp , in learning , in painting , and in musicke , and especially great mens children , in dauncing and in singing , as epaminondas and cimon , and for that themistocles & alcibiades found great fault for that great captains should become dancers , they were therefore reprehended , and answered that epaminondas and cimon were as great captaines as they . the egiptians were wont to bring vp theyr children in arithmeticke and geometry , and the kings children in magicke . people of creete brought theyr children vp in three things , first to learne the lawes of theyr countrey ; secondly to learne hymnes and psalmes to praise theyr gods ; and thirdly to learne to sing the praise and fame of their great captaines . among the indians theyr wise men called brachmanes , made a lawe that theyr children should be brought after two monethes olde before the magistrates , and there to iudge by the sight of the children , that if they were fit for warres , they should be brought vp in military discipline , if otherwise , they should be appointed to mechanicall occupations . the aethiopian philosophers made a lawe that all magistrates and parentes should examine theyr children and the youthes of theyr countries , what labour and exercise they had done euery day before they should take meate , and if it were founde that they had not exercised either mechanicall or militarie exercise , they should goe away vndined for that day . among the grecians all the orators and poets came from all parts of greece , sometimes to thesius graue , sometimes to helicon , and there the poets to contend in verses and the orators in oratory , with diuers kindes of crownes and garlands , which exercise was vsed to draw and intice the youthes of greece to vertue and learning , and as the romane youths had a garment like the dictators garment , called toga praetexta , in honor of armes to exercise military discipline in martius field , so the grecians had for those youthes that excelled in learning , the garment called palladium . the sixt regiment intreateth of murther and reuenge of blood amongst all nations , against the which the gentiles had diuers lawe-makers which made lawes to punish the same . as the gentiles in all countries had their lawes made to rule and gouerne them , as among the egiptians by bocchoris , among the persians and baetrians by zoroastes , among the carthagineans by charondas , among the magnesians and cicilians by plato , among the athenians by solon , and among the lacedemonians by licurgus , so had they certaine magistrates to execute the same lawe after them , as the thirtie senators in egipt , the areopagites in athens , the ephori in sparta , and so of the rest . this is the lawe of nature , written first in tables of flesh , and after in tables of stone . cain the first-man born ; and the first murtherer , he slue his brother abel , and had sentence of the lord with a perpetual marke of torture , that no man should kill cain , but to liue as a vagabound and a rogue , cursed vpon the earth ; the witnesse that accused him was his brother abels blood , so the lorde spake , vox sanguinis fratris tui edit clamorem ad caelum , blood therefore was the first witnesse on earth against murther , and called in scripture the iudge of blood . cain for disobedience to his father , and murthering of his brother , became a cursed vagabound vpon the earth , and all his wicked posteritie were drowned in the deludge . so scoffing cham was cursed of his father noah , and in him all his posteritie likewise accursed , for the canaanites which were of the stocke of cham , were slaine by the israelites , and the gibionites which came from the canaanites , were made slaues to the israelites , and so the egiptians and aethiopians the ofspring of cham , were taken captiue by the assyrians , so that cham was cursed in himselfe , and cursed in his posteritie , for the scorning of the nakednesse of his father ; so the parents of the idolaters and blasphemers , brought the first stone to presse their owne sonnes . the second murtherer in scripture was lamech , which killed cain , against whome the lorde made a lawe , that whosoeuer should slea cain should be punished seuen folde , for so lamech confessed himselfe , that cain should be auenged seuen-folde , but lamech seuentie times seuen fold , there shall want no witnesses against murtherers , and oppressers of orphants , and widowes . the witnesse against the filthie lust of the sodomites , was the verie crie of sodome before the lorde , for so is the lawe , that the iustice of blood shall slea the murtherer . iacobs children consented all sauing ruben and iudah , to kill ioseph their younger brother which made ruben speake to his brethren in egipt , that the blood of ioseph was the cause that they were thus imprisoned and charged with theft and robberies . there are foure witnesses which the lord stirreth vp against murtherers , oppressors of orphants , infants and widowes ; first the lorde himselfe is a witnesse , the seconde the witnesse of blood , the thirde the witnesse of stones in the streets , and the fourth , the witnesse of fowles in the aire . the like murther was in esaus heart against iacob his brother , for esau saide that the dayes of his fathers sorrowes were at hand , for i will slea my brother iacob , but iacob fled to aran to his vncle laban , by his mothers counsell rebecca , for feare of his brother . naboth was stoned to death by false and wicked witnesse , for his vineard , of achab , by his wife iezabels counsell . the like murther was in sauls heart against dauid , practising by all meanes possible to kill dauid , first by himselfe , then by his sonne ionathan , by his daughter michol , dauids wife , and by his seruants , for there is three kindes of murther , the first in the heart against the lorde , as in cains heart against abel , in esaus heart against iacob , and in sauls heart against dauid ; the seconde by the tongue , either by false witnesse , as iezabel with false witnesse against naboth for his vineard ; or else by slaunder , as the two elders in babilon slaundered susanna ; the third performed by the hand , of the which there are two many examples , but all murthers by the hande and by the tongue proceed from the heart : the enuie of cain in his heart towardes his brother abel , was the cause that he slew his brother . the murther of naboth was the couetousnesse of achab in his heart , to haue his vineyard . the murthering of vriah came from dauids heart by lust to berseba , vriahs wife . there be other kinde of murtherers , that rise early in the morning to kill in the day and rob in the night . so iob saith , manè surgit homicida , interficit egenum & pauperem . againe there bee other kinde of murtherers , as the prophet saieth , qui viduam & aduenam interficiunt . so may it be said of ambition in the heart , for by ambition herod caused all the childrē in bethelem and about bethelem to be slain , seeking to destroy him which could not be destroyed , which was christ. against such kings & tyrants , the more wicked crueltie they vse , the more iust punishment they shall receiue , iudicium enim durissimum ijs qui presunt , fiet , and the more wrong and iniurie they do to honest and iust men , the greater torments they shall suffer , fortioribus fortior instat cruciatio . by ambition in the heart abimelech slew three score and eight of gedeons sonnes his bretheren . and so by the selfesame ambition thalia caused all that were of the kings bloud to be put to death , so is hee that enuieth , hateth , & wisheth ill to his brother , a man-slaughterer . the punishment of murther in cain and in lamech , was giuen by the lawe of nature of the lorde before the written lawe was giuen to moses , as thamar the daughter in lawe of iudah for whoredome , and as murther and whoredome were punished first by the lawe of nature before the lawe written , so all other offences contained in the decalogue , were by the same lawe punished , long before the lawe was written and giuen to moses in mount tabor . the murthering of the prophets , of the apostles , and of the martirs of god , euen frō the bloud of righteous abel vnto the bloud of zacharias the priest , crye and call for iustice and iudgement , saying : how long lord will it be before vengeance be taken vpon wicked murtherers and tyrants ? of these the prophet saith , dederunt cadauera seru●…rum tuorum in cibum anibus caeli , & carnes piorum bestijs terrae . but when the lord is readie to be reuenged vpon these cruell murtherers , and ambitious murmurers , who can quench the fire in the stubble when it beginneth to burne ? who can turne againe the arrow shot of a strong archer ? or driue away a hungry lyon in the wood ? who can resist the lord in his purpose and decree ? murtherers haue their markes , as cain had such a marke , that hee could not dye , though hee wisht to dye . esau had such a marke , that though he sought with teares to repent , yet he could not repent . pharao had such a marke that he could not confesse the lord to be god , though he sought moses to pray for him , but no doubt markes of murther , for cain kild his brother abel , esau sought , and said he would kill his brother iacob , and pharao in his heart threatned death to moses and aaron , and to all the hebrewes . these signes and markes which these reprobates had , were not outward markes seene , but inward , burned with hotte irons in their consciences , but the hebrewes in the land of gosen , were marked with the letter tau in their foreheads , as signes to be saued from the plagues in egipt , they that lamented and wept for ierusalem , were marked in theyr foreheads with the letter tau of the angell : so all christians are saued by this letter tau , made like a crosse , which we must beare in our harts , and not in our foreheads . the punishment of paracides among the olde romanes was such , that the murtherer should bee put in a sacke aliue , bound hand and foote , together with an ape , a cocke , and a viper , which should so byte and torment him , vntill he were almost dead , and then to bee throwne into tiber , with his three companions with him ; so was marc. malleolus for killing of his mother , iudged so to die by the senators . the second paracide in rome was histius , after the second romane warres with the affricans , with the like iudgement giuen as before : this kind of punishment for paracides continued a long time among the romaines ; for in former time while yet the romaines were poore , not acquainted with money , long before they knew affrike or asia , their punishment for murther was but a ramme , which the romanes slew and sacrificed to their gods . the grecians like the romains in auntient time , punished a murtherer with a certaine set number of cattell ; yet in other countries they punished murther most seuerely and cruelly . as in egipt they would thrust long needles made sharpe of steele , vnder the nailes of their hands & of their toes , and after cut the flesh of the murtherer in small peeces , and throwe it by gobbets into the fire , & burne it in his sight while yet he had life in him . a lawe was made among the said egiptians , that if any man had killed his sonne , the father should be lockt together with the sonne slaine by him in one chamber , without meate or drinke for three dayes , beholding still before his face the dead body of his sonne , by himselfe slaine , ( with a watch that none should come to him ) thinking that by looking theron , there could be no greater torture or punishment to the father , then to see his sonne so slaine by himselfe which was his father . among the persians a lawe was made , that he that killed his father was thought that he neuer had a father , for they thought it against the lawe of nature , a thing vnnaturall , yea and vnpossible that the sonne should kill his father , and therefore he should be euer after called a bastard ( a greater reproach among the persians could not be ) and therefore romulus in rome , and solon in athens , being demaunded why they made no lawes against paracides , answered that they thought none so wicked or so cruell as to thinke on such wickednesse , and therefore they thought it fit , that no lawe should be mentioned for so wicked a fact , though by dracoes lawe , solons predecessor , the least fault in athens was punished with death , and therefore called in ieast , lex draconis . in lusitania a paracide should be stoned to death , not within their country , least the murtherers bloud should defile their countrie , but they should be banished to the next confines , and there to die . dauid was forbidden to build the temple in ierusalem , for that he was a man of bloud , so the lord said , thou art a man of bloud , and therefore thy sonne salomon shall build me a temple . in the citie elephantina in aethiopia , a murtherer should bee forced by the lawe to eate the hearbe called ophiusa , which being eaten , the murtherer should be so tormented with such terrible visions and dreames , that he could neuer take rest or sleepe before he had kild himselfe . the macedonians in like sort stoned them not onely to death that committed any murther or treason against their prince and their countrey , but also such as were consenting therevnto ; and therfore plato in athens made a law that the hand that slew himselfe should not be buried with the body , but should either be throwne away to be eaten of dogges , or else to be nailed in some publike place , to be eaten of fowles of the ayre , as actor of the murther . in many places murther was lesse esteemed of men , then of birds or of beasts , as in egipt to kill an egiptian cat , was more dangerous then to kill a romane captain . the history is written in diod. sic . at large . so to kill the bird called ibis in egipt , there was by the lawe capitall punishment for it . in thessalia none might kill a stoike ; neither in athens by the lawe of solon , none might sacrifice an oxe . cai. caligula after he had murthered so many , much complained because he could not murther more , & oftentimes wished that all rome had but one necke , that he might with one stroake cut it off . there was found in this emperours studie , after he was murthered , like a sword and a dagger , the one written on and named gladius , the other pugio , in the which were written the most part of the names of the chief senators , appointed by caligula to bee slaine , and in the same studie was found a chest full of cups , filled vp with diuers kindes of poysons , which likewise he appointed to poyson the most part of the romane knights , as well of the senate as of the citie , which poisons being throwne into the seas by claudius the emperour his successor , so infected the seas , that it killed an infinite number of fish , which fish being dead , the seas cast off to the next shores : so by the death of one murtherer , most part of the senators and knights of rome escaped from murther and poyson . in the time that clau. marcellus was consull in rome , there were found . olde auntient women , supposed matrons , accused and condemned for poysoning so many in rome , that it was thought by the citizens and senators of rome , that it was a common plague eyther by corruption of the ayre , or otherwise , that so destroyed the people , such rewards haue tyrants . for he that killed saul in mount gilboa , & brought his crowne to dauid , supposing to haue some great reward , had the reward of a murtherer , commaunded by dauid to be slaine . the like reward had rechab & banah , which brought isbosheths head to dauid , their reward was , to haue their heads and their hands cut off , and to be hanged vp ouer the poole in haebron : murther neuer wants his due deserts , nor iust rewards . charondas lawe was , that he that pulled a mans eye out , should loose an other of his owne for it , but if a man had but one eye , and that were pluckt out , charondas thought the lawe were satisfied , if one eye of the offender were lost for it , yet the one eyed man by loosing of his eye , was depriued of all his sight , and therfore sought by the lawe to haue the offender as blinde as he , for though hee lost but one eye , yet lost hee all his sight , and thereby would haue the penaltie of the lawe for his sight , and not for the eye , and claimed therefore iustice of the lawe against the offender . but the lawe of moses is otherwise , that if a man strike his seruant in the eye , that his eye perish , hee shall let his seruant go free , for that he lost his eye , also if a man smite out his seruants tooth , the lawe is that he shall likewise let his seruant goe free . yet in matters of death , moses lawe is , eye for eye , member for member , life for life , bloud for bloud , so is the lawe of the twelue tables , siquis membrum rupit in eum talio esto . so samuel spake to king agag the amalekite , as thy sword made many women without children , so without children shal be thy mother , and cut him in peeces , according to talions lawe . was not andronicus stript out of his purple cloathing by king antiochus commaundement for his murther , and caused to bee killed in the same very place where he caused the high priest onias to be slaine ? the lordes iust iudgement euer reuengeth innocent bloud . zimri through ambition , which is the roote of all mischiefe , conspired against his maister elam , and killed him as he was drinking in samaria . how long raigned he ? seuen dayes after hee was besieged in his owne pallace , where he was forced to burne himselfe and his house . zellum through ambition conspired against his maister zachariah , flew him , and raigned in his stead but a moneth in samaria . if men looke to the end of kings , gouernors , and generals , more are found betraied & slaine by friends & seruants in their chambers , thē by the enemies in the field . for these be called cubiculares consiliarij , à quibus b●…nus & cautus imperator venditur . thus is murther euer committed , either by couetousnes , pride , malice , enuie , or ambition , which is chief , the very ringleader of murther and treason . was not saul ambitious when samuel tolde him that the lorde had reicted him for his disobedience , to say to samuel , yet honour me before the people . the idoll appollo in delphos could say no more to augustus caesar , when he came to know what should become of the empire of rome , but that an hebrew childe was borne that commaunded vs to silence , yet as saul spake to samuel , so the idollspake to augustus , yet depart thou with reuerence from our aultar before the people . these wicked mens liues are compared in the booke of wisedome , to a shadowe , or to a poste riding in haste on the way , or to a ship in the sea , whose path cannot be seene , or to a fowle flying in the ayre , whose steppes cannot be found , whose wicked hope is compared to an arrow that is shot , and falleth quickly to the ground . was not absolon ambitious to say , i wish that there were some by the king appointed to heare the iust complaint of the people . thus by ambitious meanes he practised secret trecherie against the king his father for the kingdome . in the seuenth regiment is manifested the great zeale of good men , where whoredome is punished in many countries , and lest vnpunished in other countries , with the praise and commendation of chastitie . as you read before in the first & fourth regimēts , how the egiptians , the lacedemonians , the locreans & the getes , affirmed to haue their lawes from oracles and diuine powers . so numa pomp. made the old romaines beleeue , that all the lawes and religion which he gaue to thepeople , were deliuered vnto him by the nymph egeria , yea euen the verie barbarous scythians , brag that they haue their lawes from their god zamolxis . and as the turkes at this day confesse , that they haue their lawes from mahomet , so many other lawmakers in diuers countries , made their people beleeue , that they consulted with some diuine powers , and were instructed to make their lawes . such therefore is the strength and authoritie of the lawe , that paul calleth the lawe the minister vnto death , and yet a schoole maister to know christ. plato called lawes the sinewes of a common-wealth . demosthenes a diuine gift . cicero the bands of cities . plutarch the very life of a common-wealth . the lawes are as keyes to opē vnto vs the way vnto obedience , and to know sinne ; for if the lawe had not commanded me , thou shalt not defile thy neighbours wife , i had not knowne adultery to be a sinne . there is no offence so grieuously punished by gods lawe , neither by mans lawe , as adulterie was euen from the creation , in so much that all men defiled themselues with that sinne , all flesh corrupted his way . hence grew the lords anger so great , that hee punished the whole worlde with an vniuersall deluge , sauing eight persons : after the deluge , for the selfe same sinne , the lorde destroyed the fiue cities of palestine with fire and brimstone , the lorde would not haue so filthy a sinne to raigne among his people . how was israel plagued for theyr adulterie with the moabites , with whom the lorde commaunded that they should not ioyne in marriage , and therefore the lorde commaunded moses to hang their princes vp against the sunne for theyr filthy lust with the moabites , and the women that had lien with men , were commaunded by moses to bee slaine , and the virgines to bee reserued in the warres against the madianites , and moses was angrie with the captaines for that they hadde not slaine the madianite women . and therefore phineas the sonne of eleazer , for his zeale against adulterie , slew coshi the madianite harlot , and zimri the israelite , thrust them through both theyr bellies in the act , for the which the lord was so pleased , that the plague ceased in the campe , and the priesthood was giuen for euer to phineas & his stocke , for the lord would not haue a whore to liue in israel . the zeale of iehu was such , that hee caused seuentie sonnes of achab to bee slaine , and caused iezabal his wife to bee cast headlong downe out of a windowe to be eaten of dogges , hee slew . of achabs bretheren , and destroyed all the priests of baal , and left not one of achabs house aliue . the zeale of iehu so pleased the lord , that his children raigned foure generations after him . the zeale and faith of abraham was such , that he was readie to offer & sacrifice his onely sonne isaac to obey the lords commandement . the zeale and loue of ioseph in egipt was such , that he preferred the lawes and loue of the lord before the loue of his mistresse , putiphars wife . such also was the loue and zeale of moses to israel , that hee requested to be put out of the booke of life , before israel should be destroyed of the lorde in his anger . salomon was so zealous in the lawes of the lord , that he sought nothing but wisedome to rule his people , and to know his lawes . so iob loued the lord and his lawes , that for all the losse of his goods and children , and for diuers plagues and punishments of body , yet he still stood constant in the lawes of the lord. adulterers are cryed out vpon in the scripture , and often mentioned in the olde and newe testament , compared by the prophet to stoned horses , neying vpon other mens wiues . women so corrupted salomon , that hee forsooke the lorde , and worshipped straunge goddes , and lost thereby tenne of the twelue tribes of israel . dauid his father was so punished for his offences with one woman against the lord , that he welnigh lost his kingdome by it . if dauid , if moses and paul were buffeted by sathan , who can think himselfe free from sathan ? we must therfore watch if we will not be deceiued , we must fight if we thinke to haue victorie , not against flesh and bloud onely , but against armies of spirits , infernall powers , against spirituall enemies , and against sathan the prince and ruler of darknesse . for many are the stratagems of sathan , with whom wee must wrestle as iacob did with the angell , with such weapons as is taught in paul , or as dauid did with goliah , or as iob did with sathan himselfe . the euill counsell of achitophel to absolon , to lye with his fathers concubines , brought both absolon and achitophel to hanging . pharao for lusting on sarah abrahams wife , both hee and all his house were scourged and plagued with angels and visions . the beniamites for their abhominable abuse of the leuites wife , was the cause that three score & fiue thousand died in israel . sychem & all the sychemites for the rauishment of dina , iacobs daughter , were slain , & the towne ouerthrown by simeon and leui , iacobs sonnes . the lawes of all countries and nations appointed such due seuere punishments for adulterie , as in rome lex iulia was as sharpely executed against adulterers , as against traitors , and still renewed by many of the emperours ( after iulius caesar , who made this lawe ) as tiberius , seuerus , and others , who with great seueritie punished adulterie . lawes were made in many countries to suppresse adulterie , for concupiscence and euill affections were condemned by the lawes among the gentiles , to be the roote of all mischiefe ; for euill thoughts breed delectation , delectation bredeth consent , consent action , action custome , and custome necessitie , for custome is as another nature . adultery was punished in egipt by the lawe of bocchoris , in this sort ; the man should be beaten with rods to a thousand stripes , and the womans nose should be cut off to deforme her face , as a perpetuall marke of her adultery : but if she were a free woman , the man should haue his priuie members cut off , for that member which offended the law , should be punished by the law , which law sometime was executed among the romaines , for so was carbo gelded by bibienus the consul for his adultery ; the romanes had rather make lawes , then keepe the lawes which they made . therefore charondas made a lawe to keep the good from the bad , for to flie from vice is vertue ; that by taking away the cause the effect might also be remoued ; for vertue is soone corrupted with vice , and a litle leauen infecteth the whole doughe ; and therefore an action might be had by the lawe of charondas , not onely against honest women that vsed the company of leaude men , but also against men that should be often found in the societie of wicked men ; for charondas saide , good men become better by obedience of the lawe , and become wicked , by wicked company which obey no lawes ; for that lawe said charondas is euer best , by the which men become more honest then rich . par est eos esse meliores qui ex melioribus . lysander being demaunded what maner of gouernment he best liked , said ; where good men are rewarded for their weldoing , and euil men punished for their wickednesse : as plato said , omnis respub : paena & praemio continetur . so demosthenes euer thought that law best , which prouided for good men aduancement , and for euill men punishment . to the like effect zaleucus made a lawe that no honest or modest woman should goe in the street but with one maide with her ; and if shee had two , the lawe was , she should be noted for a drunkarde : neither might knowne honest women goe out of the towne in the night time , vnlesse they would be noted to goe in the company of adulterers . neither might any modest woman or sober matron be attired with braue apparell , imbrodered or wrought with gold , siluer , bugles , and such , vnlesse shee would be noted by the lawe of zaleucus , that shee went abroad to play the strumpet , for among the locreans an adulterous nation , people much giuen to lust and lecherie , zaleucus made a lawe , that by their comely and modest apparell they should be knowne from harlots , and light women , which vsed to weare light , garrish , and all kinde of glistering garments to be looked at . aurelianus the emperour punished a souldier found in the campe in adultery in this sort , to tye both his legs to two toppes of trees , bended to the earth , and so his bodie by the swinge of the trees to cleaue in the midst through , that the one halfe hangd on the one tree , and the other halfe vpon the other tree . the like or rather more horrible punishment vsed macrinus the emperour against two souldiers in the campe that deflowred a maide in their lodging , he caused two oxen to be opened , and sowed aliue one of the souldiers in the one oxe , and the other souldier in the other oxe , and left their heads out of the oxen , that thereby they might speake one to an other as long as they liued . was not abraham called from the chaldeans ; because they were wicked idolaters ? did not iacob long in mesopotamia for the land of canaan ? did not dauid wish to be in iudah from among the amalekites , wicked infidels ? were not the captiue israelites most desirous from babilon to come to ierusalem ? yet not before the time that god had appointed and determined ; for elizeus could not prophesie before elias threw his mantle vpon him , neither could dauid appeale the furie of saul before hee played on his harpe ; neither could aaron become a high priest before his rod blossomd in the arke . the very heathens forsooke the company & countrey of wicked people , as hermadorus forsooke his countrey ephesus for the iniquitie of the people . anacharsis left scythia his barbarous countrey , and came to greece to learne wisedome and philosophie in athens . plato left athens , and went from greece to egipt to be taught in the religion , ceremonies , and lawes of the egiptians . paul left tharsis to goe to ierusalem to learne the lawes of the iewes at gamaliel . queene saba came from aethiope to heare salomons wisedome in ierusalem . it was lawfull by the lawe of solon in athens , to kill an adulterer beeing taken in the act , as among the olde romanes , the husband might kill his wife , if hee found her an adulteresse : but this lawe of solon in athens , was after mitigated by solon with a lesse punishment . the parthians supposed no offence greater then adultery , neither thought they any punishment to be equall with so great a crime . among the arabians the lawe was , that the adulterer should die such a death as the partie grieued should appoint . diuers philosophers euer thought adultery worse then periurie , and without doubt greater harmes growe by adultery then periurie , though the one be in the first table against the maiestie of god , to take his name in vaine ; and the other in the second table against thy neighbour , whom thou oughtest to loue as thy selfe ; and yet some of the best philosophers as plato , crisippus , and zeno , iudged that common-wealth best gouerned , where adultery was freely permitted without punishment , that libertie they brought from egipt vnto greece , where the egiptians might marrie as many wiues as they would , like the persians . among diuers other nations , adulterie was left vnpunished , for that they had no lawe against adultery . histories make mention that the virgins of cypria and of phaenizia , get their dowrie with the hire of their bodies , vntil they gaue so much for their dowries , that they might make choise of their husbands , and be married . the troglodites the nights before they be married vnto their husbands , must lye and keepe company with the next of their kin , and after their marriage they were with most seuere lawes punished if they had offended . it should seeme by the lawes of licurgus in sparta , . yeares before the law of solon in athens , which was . yeares before the law of plato among the cicilians , which made no lawes against adultery , that the grecians tooke their instructions by imitation from the egiptians . for one after an other , solon after licurgus , and plato after solon , trauelled to egipt & to other farre countries , and brought the lawe of bocchoris out of egipt , the lawe of mynoes out of creete , and the lawes of the gymnosophists out of india into greece . as among the lesbians , garamites , indians , massagets , scythians , and such , that were more like to sauage beasts , then to temperate people , for by the lawe wee knowe sinne , for i had not knowne what adultery was , vnlesse the lawe had commaunded thou shalt not lust . and therefore it was not lawfull by moses lawe , that a bastard , or the sonne of a commonwoman , should come vnto the congregation of the lord , or serue in any place of the tabernacle , or enter into the ministerie vntill the tenth generation , so hatefull vnto the lord was fornication , adulterie , and vncleannesse of life . when iacob had blessed all his children , yet for that ruben lay with his fathers concubine bilha , his father iacob prophesied , that he should not be the chiefest of his bretheren , though hee was the eldest sonne of iacob , and the eldest of his bretheren , for that he was as vnstable as water for defiling his fathers bed ; for among the israelites it was a great shame and reproach for women to be barren , & therfore the wiues brought their maides to their husbands for childrens sake , as sarah brought her maide agar vnto abraham , and leah and rachel brought to iacob their two maides , bilha and zilpha ; so rachel gaue leaue to iacob to lye with bilha her maide , who bare to iacob two sonnes , whom rachel though not their mother , named them as her owne sonnes , dan and nepthali . so leah brought her maide zilpha to iacob , who conceiued and brought him two sonnes , of whom leah was so glad , that she named them as her owne sons , the one gad , and the other asar , so that foure of iacobs sonnes were borne by his maides and not by his wiues . this was tollerated , but not lawfull . though the hebrewes were tollerated by the lawe of moses to haue many wiues and concubines , and libels of diuorcement , for the hardnesse of the lewes hearts , as christ said , yet said our sauiour , non fuit sic ab initio , it was not so from the beginning . euen from the creation men liued vnder the law of nature , for in mans heart ( yet not corrupted before the fall ) there was perfect knowledge in the lawe of nature , as in the first man adam was seene before his fall , vnder the which the olde patriarkes liued , and sinnes were corrected and punished by the same lawe , for it was a positiue lawe by nature set foorth and written in the hearts of men , thus was the written lawe yet by moses tollerated . when it was tolde iudah that his daughter in lawe thamar was with childe , hee commaunded that shee should be brought forth , and be burnt . here the law of nature before the lawe written , commaunded whoredome to be punished with death ; here iudah though he detested whoredome in thamar , yet being found that the incest was committed by him , found his fault greater then hers . if a man be found with a woman that hath a wedded husband , let them both die the death , so shalt thou put euill away from israel , for the lawe is , you shall maintain no harlots in israel , as the cyprians and locreans doo . it was not lawfull among the old romaines to call a bastard by the name of his father , because he was the son of a common woman , and no man knew who should be his father ; but they vsed for his name to write these two letters , s. p. quasi sine patre , as though he had neuer a father . in athens by the law of solon , a bastard might choose whether he would be acquainted with his father or no , or giue him a meals meat in his house , or a cup of drinke at his doore , for that he was the cause of his ignominious and infamous birth . among the israelites if a man marry a young virgin , and after proue her not to be a virgin when hee married her , the lawe is , that she should be brought to the doore of her fathers house , and the men of that citie should stone her with stones to death , but if her husband falsly accused her , then the elders of that citie should chastise him , and mearce him in an hundred sickles of siluer , and giue them to the father of the damzell , and she to continue with him as his wife . but in israel there was an other lawe , that if a man be taken committing fornication with a virgin , & after the matter come before a iudge , he shall be caused to marrie the woman , and to liue with her during his life , and to pay . sickles of siluer to the maides father for his offence . a woman with childe condemned to death , might challenge the time of her childbirth by the lawe of bocchoris , which lawe was brought by solon from egipt vnto greece , for the law thought it not fit , that the guiltlesse should die for the fault of the guiltie . an other lawe was made , that if a man hurt a woman with childe so that her child depart from her , and she die not , hee shall be punished according as the womans husband shall appoint , or pay as arbiters will determine . againe in israel there was an other lawe , that the wife of the dead shall not be giuen vnto a straunger , but her brother in lawe shall take her to wife , and marrie her , and the eldest sonne which shee beareth , shal be the child of the brother that was dead , and not of him that begat him , but if the brother refuseth to marrie his brothers wife , the elders of the citie shall call vnto him , and commune with him , before whom if hee denie to take her to wife , then the sister in lawe should go in presence of the elders , and loose his shooe of his foote , spit in his face , and say , so shall his name be called in israel of the vnshod house . the lawe of moses was , that an adulteresse should be brought by her husband vnto the priest , and the priest to bring her and set her before the lord , & shall vncouer her head , & haue bitter & cursed water in his hand , and say , if thou be not an adulteresse , and defiled not thy selfe vnknowne to thy husband , then haue thou no harme of this bitter and cursed water , but if thou be defiled by an other man besides thy husband , the lord make thee accurst , and make thy thigh rot and thy belly swell , and this cursed water goe into thy bowels , and the woman his wife so accused , shall say , amen . the lawe which the lorde punished his people for committing adulterie , was with such seueritie , that they should die the death , either by stoning or burning , which was the lawe among the israelites . the people called cortini , had a law in their country , that an adulterer should bee crowned with wooll , and should sit in the market place in open sight of the people to be laught at , and to be noted as an infamous adulterer all his life long in his countrey . the people called pisidae had a law made , that the adulterer should be bound vpon an asse , and be carried from towne to towne , for the space of three dayes , with his face backwards , holding the taile of the asse in his hand for a bridle . they had in athens by the law of solon a place called casaluion , & the women were called casaluides , to whom any athenian might resort to auoyd adultery with the matrons and virgins of athens . the like place they had in rome called summaenium , for the like purpose ; and the like are tollerated in many countries to auoyd great offences , but rather a nurserie of whoredome then a prohibition . these vsed the like words as iulia did in rome , licet , si libet , like anaxarchus , being demanded by cambises , is it lawfull for the kings of persia to marry their sisters ? we finde not such lawes , said anaxarchus , non fas potentes posse , fieri quod nefas , but wee finde an other lawe that the kings of persia may do what they list . what vice can be greater in man then incontinencie ? for it doth sin against the body it selfe , & doth weary and languish all the parts thereof ; for as fish saith plato , are taken with hookes , so men are taken and deceiued with pleasures ; in so much that xerxes , the great king of persia , decreed by lawe , a reward to any man that could inuent andfind out new kinds of pleasures , but he was slain , and lost the kingdom of persia by his pleasures . and therfore well said solon , cōsule non quae suauissima , sed quae optima . hanibal hauing welnigh subdued the romane empire , yet being taken with the baites and pleasures of campania , in company of wine and women , and all delicacies and pleasures that could be inuented , of which seneca saith ; conuiuiorum luxuria & vestium , aegrae ciuitatis indicia sunt , that by meanes of his incontinency in campania , he was driuen out of italy , and after out of his own country of affrike , by him that was one of the chiefest and chastest captaines of all the romaines , scypio affrican , who made a lawe to bannish all women out of his camp , to whom in his affrican wars was brought a passing faire young gentlewoman of singular beautie and of a noble house , whom scypio vsed so honourably , with great care and diligence for her good name & credite , vntill allucius a young gentleman that should be married to the virgine , brought a great raunsome from her parents , to redeeme her , to whom scypio deliuered both the young virgin into his hands , and bestowed the gold which her father sent vnto him for her raunsome , vpon allucius for her dowry ; by this honourable dealing of scypio , the whole prouince which stood out in armes against scypio , yeelded vnto him , & sought peace at scypios hand , for his courteous modestitie & temperancie ; where hanibal lost all italy and campania , by his incontinencie and vnchaste life . if darius king of persia , had escaped from his last ouerthrow at arbela by alexander , no doubt in respect of the honourable vsage which alexander shewed to darius wife and his daughters , he would haue yeelded all the whole empire of persia vnto alexander . narseus king of persia , being ouerthrowne , and his armie slaine , by dioclesian the emperor of rome , and the king himselfe constrained to flight , his wife and his daughters were taken by the romanes , and were vsed so honourably , that the persians confessed , that the romanes did not only exceed all nations in armes & valour , but in modestie and temperancie ; the honourable vsage of his wife and daughters , made narseus to yeeld vnto the komanes , and to deliuer to the romais hands armenia , with fiue other prouinces , and to conclude a peace ; see the force of vertue and power of chastitie in heathens , that alexander , scypio , and dioclesian , wanne by temperance and chastitie , that which they could not conquere by armes . antigonus vnderstanding that his sonne lodged in a house where three sisters were , of passing beautie , wrote that he was most straightly besieged of three great enemies , and therefore wished him to remoue his campe , and afterwards made a decree , that his son should lodge in no place , but where the woman should be . yeares of age . the lawe was among the grecians , that women should not sit among men , vnlesse it were with thier husbands , and among their next neighbours . the like lawe was among the romains , the woman that might be found with strangers in banquets , her husband might put her away , and be diuorced frō her , and therefore it is written in the lawe , that conuiuia , veneris praeludia sunt . licurgus lawe was among the lacedemonians , that none should fare better then an other in banquets , but all by lawe should be equally feasted ; the number was appointed in banquets from three vnto seuen among the greekes , so that it grew to be a prouerbe among the grecians , septem conuiuium , nouem conuitium facere . so among the auntient romanes , not aboue foure or fiue should be allowed or admittted to a feast or banquet : for the chiefe feast by platoes lawe called bellaria platonis , was figges , berries , oliues , pease , beanes , masts of beech trees tosted , and prunes , for the temperate fare and thin dyet both of the olde greekes and of the romanes , were magis iucunda quam profusa . but after in time it grew to such excesse among the romanes , that they came to their feasts and banquets with garlands crowned , and there to drinke the first draught to iupiter , as the grecians drank the last draught to mercurius . vnto these kinde of feasts the romanes might not come in black or sad coloured garments , but all in white . wisedome exclaimes against those that say , coronemus nos vosis ante quā marcescant & vino precioso nos impleamus . so likewise among the grecians it grew to such excesse , that they forgot anacharsis lawe , which was but three draughts of wine ; or democritus lawe , which was but foure at the most , though afterward it came to a popular lawe , aut biberent aut abirent . this the greekes had frō the persians , who with their wiues and concubines , consulted of state matters at their feasts . licurgus also decreed an other lawe , that in any publike feast or banquet , whē neighbours and friends were disposed to be merrie , that the best and auntientest man of the company should speake to the rest , that nothing spoken or done in this feast , should passe yonder doore , shewing to the company with his finger , the chamber doore which they came in at . these feasts were not bellaria platonis , but rather praeludia veneris . in the eight regiment is contained the commendation of chastitie in vertuous and godly women , with the sinister means of the gentiles to become chaste . after lawes were made in euery countrey , confirmed by diuine authoritie , and executed by graue and wise magistrates , these lawes for necessitie sake were sent for from one kingdome to an other , to gouerne & to rule theyr countreys . philadelphus king of egipt , sent three from alexandria to eleazarus the high priest at ierusalem , for the lawes of moses to bee translated from hebrew into greeke . so the senators of rome sent three for the lawe of the . tables , to be brought from athens to rome . so the mazacens sent for the lawe of charondas to thuria , and so the grecians sent for the lawes of king minoes into creete . philadelphus much wondred after the reading of the hebrew lawes , being so wise and godly a lawe , that welnigh for a thousand & two hundred yeares , no nation among the gentiles made any mention of this lawe , though before that time they must needs heare and read of it , by reason of the greatnesse and authoritie of the iewes common-wealth . demetrius and menedemus two great philosophers , at that time answered the king , that none durst attempt to mingle the diuine lawes of the hebrewes with the prophane lawes of the gentiles , for both theodectus and theopompus were punished , the one with madnesse , the other with blindnesse , for making no difference betweene the lawes of the lord , and the lawes of the gentiles , for as dagon their god fel , & could not stand before the arke , where the presence of god , and the figure of christ was , so the lawes of the lord suffered no prophane lawes to be ioyned with them . seeing we are commaunded by the lawe to forsake adultery , wee must learne by the selfe same lawe how to become chaste , not as the priests of athens did , called hierophantae , before they should come to doo sacrifice to their goddesse pallas , they would drinke a very colde drinke made of cicuta hemblocke to make themselues chaste , sometimes vsed in athens to poison condemned men , which was the last drinke and draught of socrates . neither like the romaine priests who vsed to drinke and to wash themselues often , with the colde water cicalda , to become chaste to sacrifice to the goddesse ceres . neither as the priests of egipt did by shauing theyr beards , and the haires of their heads , by abstaining from wine , women , and flesh , or by ofren washing or annointing of their bodies , to become the more continent to serue their goddesse ifis . these heathens all , for that they knew not christ , missed in the meanes to become temperate . so the priests of cybeles did amputare virilia , because they might continue chast and religious to sacrifice , and serue their goddesse cybeles . but it was commanded by the lord , to aaron and his sonnes , that they should make no baldnesse on theyr heads , nor shaue off the lockes of their beards , nor make any marke in their flesh as the gentiles did . it was not lawfull for them to marrie with a widowe , or woman diuorced from her husband , or any polluted woman , but onely with a maide , for the lord would haue his priests holy which kindle fire on his aultar , and offer bread in his sacrifice . if the priests daughter play the harlot , she should be burnt by the lawe , though others by the lawe should be stoned to death . to become chaste is to serue god , and to say as sarah , tobiahs wife said in her praiers , thou knowest ( ô lord ) how i haue kept my soule cleane without any desire or company of man. likewise to become temperate , is to imitate iudith the widdowe , that sate all day long in her house in sackcloath , and kept her selfe close within doores with her maides , fasting all the daies of her life , excepting onely the sabboth and the feast of the new moone , not like dina gadding to sichem to see the manners and fashions of the sichemites ; neiiher like the sabine virgins going to the feast consualia to see playes in rome ; neither like the maides in siloh , to go abroad to play , to daunce , and to sing . what was the end of this libertie ? first the ouerthrow of sichem and the sichemites , for violating dina iacobs daughter ; secondly the rauishment of the sabine virgins , which moued publike warres betweene the sabines and the romanes ; and so of the virgins of siloh . neither like that light woman which is spoken of in the prouerbes of salomon , saying : i haue deckt my bed with ornaments , with carpets , and carued workes , & laces of egipt , i haue perfumed it with mirrhe , aloes and synamom , come and let vs take our fill of loue vntill the morning , and take our pleasure in dalliance , and he followed her as an oxe that goeth to the slaughter , as a foole to the stockes , or as a bird hastneth to the snare , not knowing what danger he runneth into , for can a man take fire in his bosome and not be burnt ? can a man goe barefoote vpon coales , and his feete not be burnt ? so he that goeth to his neighbours wife shall not be innocent saith salomon . it was a custome among the hebrewes , that the spowse was brought to her her husband , her head being couered ; so rebecca tooke availe and couered her head , when shee sawe isaac , in token of shamefastnesse and chastity , for the way to become chast , is first to be shamefaste . men must haue chaste eyes , holosernes offended and desired to sinne with iudith , at the sight of her slippers . so the two elders offended at the sight of sufan●… bathing her selfe in the well . this made abraham to speake to his wife sarah , i know thou art a faire woman , that when the egiptians see thee , they will kill me to obtaine thee . the eye of herod was delighted so much at the dancing of herodias daughter , that he foolishly promised whatsoeuer she would aske , which hee cruelly performed with the head of iohn baptist. to become chast is the gift of the lord , not by vnlawfull meanes as origen did , though learned and religious , yet missed in the meanes to be temperate , so that he made himselfe to be made an euenuke , and his stones to be taken away , thinking thereby to become continent , for you shall not teare , nor cut your flesh , nor make any print of a marke by whipping of your bodies , or burning marks any where vpon the flesh , as the heathens and pagans did . so the prophet elizeus commaunded naman the syrian to goe to wash him in iordan , to elense him of his leprosie . so christ commanded a poore cripple to goe to the water of syloh to wash him , the water wherof being stirred by the angell , many were healed ; i do not speake of the waters which in olde time the romaine marchants vsed to sprinkle themselues withall , called aqua mercurij , whereby they supposed that their god mercurius , would giue them good successe & great gaines . mary magdalene trusting too much the false reports of some rabines , was deceiued in the seeking of the messias , but hauing founde ( whome shee sought ) the messias , her loue was such , that shee washt his feete with the teares of repentance , and dried them with the haires of her head , and therefore many sinnes were forgiuen her , because she loued the lord much . among the gentiles also , there were so many that made meanes to become chast , as they which were called animphi , and another sort called abij , which in no sort could abide women , but led a single life ; especially the heathē priests in all countries , they should not come and offer sacrifice vnto their gods , vntil they had shaued their haires , and washed their bodies ouer from top to to toe , and abstained from wine and women . the gymnosophists in aethiopia , graue and wise iudges , they made means likewise to become chast , by thin fare , feeding on gurgins and course bread , made of the huskes of corne , with apples and rice , this was their meanes to become temperate in their prophane religiō . so in india , sacedotes solis , the priestes of the sunne , thought the meanes to make themselues continent , not only by abstaining from flesh , wine and women , as the priests of athens , of rome , and of egipt did , but also by refraining their owne beds in their owne houses , and to liue sub dio , to lie in their cloathes vpon the earth . among the romanes and the grecians the lawes of the . tables commaunded & commended to them chastitie , in such sort that they might neither serue , sacrifice , nor offer vnto their gods , vnlesse for a certaine time they had abstained frō wine & women , the words of the law were these , ad diuos adeunto castè , pietatem adhibento , opes admouento . how straightly the gentiles obserued this , you read before , yet seeke they their warrant from moses , for the high priest abimelech would know of dauid whether he and his company were pure and cleane froō women before they should eat of the shewe bread , which was lawfull for no man to eate but the priest. the lawe of moses was , that money gotten by common women might not be accepted , neither in offring , nor in sacrifice vpon the lords aultar , for the law saith , thou shalt neither bring the hire of a whore , nor the price of a dogge into the house of the lorde , for euen both these are abhominations vnto the lord , for there shall be no whore , nor whore keeper in israel . so numa pomp , made a lawe in rome , that a strumpet or a leaud woman should not so much as touch the aultar of iuno , for it was his lawe that pellex non tanger●… innonis aram , so all the pagans and heathens would haue cleane and pure things offered and sacrificed vnto their gods vpon their prophane aultars : so it is written by cicero , impij donis non audeant placare deos . in the ninth regiment is signified the continuance of lawes in diuers countries , and the care in keeping of their lawes . after lawes were made and executed in all countries , reuerenced with obedience , and so kept with care , that licurgus lawes were kept in sparta among the lacedemonians , fiue hundred and odde yeares , the lawes of the sybils in rome , continued welnigh fiue hundred yeares ; the lawes of bocchoris in egipt , endured seuen hundred yeares , the lawes of solon in athens , continued one hundred yeares from solons time to xerxes , at what time athens was burnt by the persians . the lawes of the rechabites were obserued & kept three hundred yeares by the children of ionadab , but the lawes of the iewes from the comming of moses out of egipt to the last destruction of ierusalem vnder titus , continued . yeares . so carefull were the first age , that the children of seth ( hearing adam prophesying of two destructions which should come vpon the whole world , the one by fire , the other by water ) builded vp two arches or pillars , the one of bricke , the other of stone , in the which were written many things concerning the lawe of nature , and the influence and motions of the starres , that if the bricke pillar were destroyed by water , the stone pillar should reserue and keepe safe their lawes , theyr seruice , and sacrifice to god ; which the patriarkes vsed as instructions to their posteritie after the floud , which continued vntill iosephus time ; which as iosephus himself writes , he sawe in syria . moses at his death deliuered to the hebrewes the booke of the lawe , and he commaunded them to lay vp those lawes in the arke within the tabernacle , where it was lawfull for none to come to them , but the high priest , which continued from moses time vntill ierusalem was destroyed by nabuchodonozer , at what time ieremie tooke the tabernacle , the arke , and the aultar of incense , and brought them to mount nebo , where moses dyed , where he found a hollow caue , wherein he layed the tabernacle , the arke , & the aultar of incense , and so closed and stopped the caue . among the egiptians their lawes were so reuerenced and honoured , that none but onely the priests of memphis had the keeping thereof in the temple of vulcan . the lacedemonians in like sort so reuerenced and kept their lawes , that their kings and the magistrates called ephori , came once a moneth to the temple which they dedicated to the goddesse feare , and there in the porch of the temple , the senators of lacedemonia , which were . in number , did minister an oath both to the king and the ephori before the people , to serue & keep licurgus lawes , in the which temple their lawes were lockt vp , and kept with great care . the romaines made so much of the lawes of their sybils , that they were so kept and so strongly lockt with such care and diligence in a stony arke in the capitoll vnder the ground , where none might come to them , see nor read them , but the officers called duumuiri , who had the charge ouer them , neither they vntill the consuls , and the senate had occasions to conferre with the lawes , which continued from torquinius priscus time , vntill lu. syllas time , at what time the capitoll was burnt , and withall the lawes of the sybils , and if any of these officers would reueale any secrets out of the lawes of the sybils , hee was punished like a murtherer , sowed aliue in a sheete , and throwne into tiber. so the athenians very carefull of their lawes , written first by draco , and after by solon in tables of wood , called syrbes , that they were set vp to bee kept in theyr chiefe court place , which the athenians named prytanion , where magistrates should sit and iudge causes of lawes . the lawe of the turkes is , that the priests after some ceremonies done , should haue a sword and a speare , which is set by him in the pulpit , and to shewe the same to the people , saying ; see that you haue these weapons in a readinesse to defend the lawes and religion of mahomet , the penaltie of the turkes lawe is , that if any man speake against their law , his tongue should be cut out ; in so much that the booke called muzaph , wherein their lawe is written , is so reuerenced and honoured among the turkes , that no man may touch it with bare hands . thus were lawes in all countries reuerenced , and with great care and diligence obserued . after lawes , decrees and statutes were made in euery countrey , with such circumstances as agreed with the time , with the place , and with the people , for without law no common-wealth nor kingdome can be gouerned , as aristotle saith , in legibus salus ciuitatis si ta est . iudges were appointed to execute the same in all countries , and magistrates in euery citie , as among the hebrewes the elders called synadrion iudges , and yet in euery citie of iudah was a seuerall iudge . among the egiptians they had . iudges which they elected , from eliopolis , memphis , thaebes , alexandria , and other citties of egipt , of the which . they elected one to be chiefe . among the aethiopians the sage philosophers , the gymnosophists , executed theyr lawes , among the indians likewise the brachmaines , called also sacerdotes solis . among the grecians , the generall iudges called amphictions , which sate twise in the yeare , once at trozaena in the spring time , and in the autumne , in the temple of neptune in isthmos . in many countries women for their wisedome and knowledge , were admitted to sit in counsell , as among the persians with king xerxes , who in any great cause of counsell , would sende for artemisia , queene of caria , whose counsell he found so wise , that chiefly among all the princes of persia in many causes he allowed and followed her counsell . so the queenes in egipt , altogether ruled and gouerned the whole estate of the kingdome , to whom greater honour and homage was giuen , rather then to the kings of egipt , for that the whole state of their kingdome was rather gouerned by the queenes then by the kings . women among the lacedemonians were not only admitted in publike counsell , to sit and determine in courts , but also sent for to cōsult in secret matters of state with the senators . the old gaules in the time of haniball , in any contention betweene them and the carthagineans , if the breach of the lawes , or any league broken were committed by the gaules , the women should determine a satisfaction to the carthagineans ; if any offence grew by the carthagineans , the senators of carthage should satisfie the gaules . it is as well saith aristotle , if men gouerne like women , that women should gouerne . quid inter est vtrùm faeminae , an qui gubernant , gubernentur à faeminis . the romaines though they had a lawe that no woman nor young man should bee admitted to counsell , yet suffered they such graue and wise women , as agrippina , meza , cornelia , and others , to sit in some secrete place where they might see , and not bee seene . solon therfore forbad by law that young men should neither giue counsell , nor be magistrates in a common-wealth . so plato saith , concilium eius est , qui rei cunisque peritus est . yet deberah and hebrew woman , was a iudge in israel , gouerned and ruled the hebrews for fortie yeares . to this woman came all the children of israel for iudgement , and she gouerned them wisely , and discreetly ministred vnto them in all points the lawes of moses , and deliuered them out of the hand of iabin king of canaan , who had sore oppressed israel for the space of twentie yeares . but among the athenians , it was not lawfull that women should sit and determine in matters of state in athens , as the women in sparta did ; or as the women of persia. the athenians sent to delphos to know what lawe and religion were best to bee obserued among the people ; it was answered , the auntient lawes and religion of their elders . the second time they sent againe , saying , that the lawes of the elders were often chaunged ; it was by the oracle answered , that they should take the best lawes of diuers lawes , for it was the manner as well among the grecians , as among the romaines , euer to make lawes , and neuer to keepe them . and though the authoritie of the kings were taken away , and derogated in many countries , yet the force and power of the law stood in effect , though the change thereof were dangerous . for the lawe sayth , thou shalt not steale , nor deale falsely , heerein is included vnder the name of stealing , all kinde of sacriledge , falshood , fraud , lying one to an other , and all other crimes pertaining to stealing . achan for his cunning stealing of a cursed babylonian garmēt , two hundred sickles of siluer , and a toong of gold against the lawe at the spoile of iericho , was deliuered by the lord to ioshuahs hand , who brought him with his sonnes , his daughters , all his cattells , his tent , and all that hee had vnto the valley of achor , and there stoned achan to death , and burned them with fire , the lord euer preferreth obedience before sacrifice , for the disobedience in achan for breaking the lawe , was the cause of his stoning . the disobedience of saul against the commaundement of the lord was such , that he lost both his kingdome and his life . a prophet that went from iudah with the word of the lord to bethel , for that he did eat bread in that place being forbidden , he was killed of a lion as he returned . the man that gathered stickes vpon the sabboth day against the commaundement , the lord commaunded he should be stoned to death . we might thinke that the gathering of stickes , and the eating of a peece of bread were but small faults , that thereby the one should be stoned , and the other killed of a lyon , had it not bene forbidden by the lawe . so such men suppose adams fault to be but little , that for earing of an apple in paradise , not onely he , but his posteritie after him should loose paradise , but as the angels in heauen , by their disobedience lost heauen , so adam by his disobedience lost paradise . the lorde spared not kings for breach of the law , as oza , and ozias both kings , the one for vnreuerent handling of the arke , vsurping the leuites office against the lawe , was strooken with sudden death ; and the other for burning incense against the lawe , which was the priestes office , was strooken with leprosie . the lord spared not his owne priest aaron , that for his incredulitie before the people , he died for it in mount hor. neither spared the lord his owne seruant moses for his disobedience , so that hee also died in mount nebo , that neither of them both came to the land of canaan , for their disobedience and diffidence in the lord. so seuere the lawe of the lord was , that . bethsamites died for looking into the arke . aarons sonnes nadab and abihu , for offering strange fire before the lord against the lawe , were destroyed by fire from heauen . hence grew the ceremoniall lawes of the gentiles , touching their religion and sacrifices to their gods. so the women that attended the fire on the aultar of apollo in delphos , were seuerely punished , if by any negligence it happened to be extinguished , neither might that fire being so extinguished , be kindled again by any other then by the said women , and by no other fire thē by the beames of the sunne . the vestall virgins in rome , if the sacred fire of vesta weare out by any negligence , that vestall virgine that then attended , should be brought per regem sacrorum to the bishop to be whipt , neither might any fire be kindeled againe to the goddesse vesta , but by the heate of the sunne , neither might they sweare by any other then by the name of vesta : the like ceremonies they vsed to minerua in athens . so among the persians , assyrians and chaldeans , they worship their sacred fire , vt deorum maximum on their aultars , seeming to follow moses lawe . zaleucus an auncient lawe-maker among the locreans , brought vp with pythagoras the phylosopher , made a lawe against adulterers , that both the eyes of the adulterer should be pulled out , which being broken by his eldest sonne , though all the locreans ioyntly en treated for zaleucus sonne , yet said he the lawe must nobe broken ; and to satisfie the lawe , zaleucus pulled one of his sonnes eyes out , and an other of his owne , shewing himselfe a natural father to his sonne , & a iust iudge , to performe the lawes which hee made to the locreans ; so seuerely were they punished that brake the lawes , or sought to breake the lawes among the gentiles . those people said alcibiades , do better which keepe the lawes they haue ( though they be worse ) then often changed for better , obseruatio legum & morum tutissima , that plant cannot take roote which is often remoued . so augustus caesar wrote to the senators , that what lawes soeuer they had decreed and set downe , should not be chaunged nor altered ; for better were it not to make lawes , then to make so many lawes , and not to keepe them . positas semel leges constanter seruate , nec vllam earum immutate , & si deteriores sint , tamem vtiliores sunt reipub. lu. papirius cursor the dictator , for that fabius rutilius brake the decree of the dictator , though hee had good successe , and wonne a great victorie , yet the lawe was , that fabius should dye , neither could the captaines entreate him for his pardon , that fabius was constrained secretly to flye to rome , and to appeale to the tribune of the people , and to the senators ; the dictator followed fabius to rome , saying , that there was no lawe that any appeale should be made from the dictator , vntill fabius and his father fell vpon their knees , with the senators and tribune of the people , to entreat for him , and that for breach of the lawe , though hee was magister equitum , the greatest and next in authoritie to the dictator , for the lawe-makers themselues that brake their owne lawes were punished , as zaleucus spared not his owne eye , nor diocles his owne life for breach of the lawe . the like we find in plato , comparing the lawe to medicines mingled with poyson , to that ende the patient might recouer his health by the medicine , so that ( saith plato ) the law is profitable to correct and amend the offender , vt medicamentis venena miscemus salutarifine , instar pharmaci haec talia vtilia esse . diocles , among other of his lawes in syracusa , made a lawe , that if any should come armed with weapons into any senate , court of councell , or before any magistrate or assembly of people , sitting in lawe causes , he should die for it by the lawe of diocles. this lawe of diocles was the cause of his own death , for as he was riding into the towne , being met & sent for to mitigate some contention , and debates among the people , he making hast , forgetting his sword on his side , came to the court , and opened to them the lawe made to the people , to be gouerned by , & willed them to obey the same , but hee was tolde by some seditious men , that he made lawes and brake them himselfe , to come with his sword on his side against his owne lawe to the court , diocles forgetting that he had his sword on his side , answered , i will streight satisfie the lawe , drew his sword out and slue himselfe in presence of all the multitude . i am not ignorant that some say that charondas was he that made this lawe and not diocles. so licurgus willingly banished himselfe to die out of his countrey , that the lawes which he made in his countrey might continue according to the oracle . pythagoras disciples thought whatsoeuer their maister said was sound and sure , they would haue no other proofe but what pythagoras said , ipse dixit . likewise aristoles schollers , they would seeke no other proofe , whether it were right or wrong , but what they found in aristotles booke , est aristotelis . vilescit princeps qui quae iusserat , vetat , & quae vetuerat , iubet . for the which fault cato reprehended pompey , for that hee brake the lawe which hee made before when hee was consull . the israelites had not such trust and confidence in their lord and god , as eyther the schollers of pythygoras , or of aristotle , had in their maisters , but said , wee will obey the queene of heauen , wee will sacrifice to the calfe in bethel , and offer our children to moloch , in the valley of hinnon . see the diffidence which the israelites had of their lord and god , of whom the prophet said , ipse dixit , & facta sunt , ipse mandauit & creata sunt : for by his word heauen and earth were made , and by his commaundement all things created , and yet not so much obeyed as pythagoras was of his disciples , or aristotle of his schollers , nor so much worshipped of his people israel , as the two calues made by ieroboam in dan and bethel . old customes once rooted & in long time confirmed , are taken for lawes ; also whatsoeuer is done by example , it is supposed that it may bee done by lawe , so cicero saith , quod exemplo fit , id etiam iure fieri putant , when in truth wicked customes are named vetustas erroris , & non veritas legis , though corrupt and leaud manners of men were first the cause that lawes were made , yet euill examples may not bee allowed as lawes . the auntient fathers and patriarkes were poliga●… , but not thereby to make good lawes by ill examples ; for it is said , praua consetudo magnus tyr annus . in the tenth regiment is shewed the disobedience of man against the lord , with the seuere punishments of all nations against theft . the lord commaunded rauens to feed elias , and they did obey him ; he commaunded the sunne to stay ouer gibeon , and the moone ouer aialō a whole day , and they obeyed him ; the lord commaunded the winds , the seas , fire , haile , snowe , ise , and tempests , and they obeyed his commaundement ; all creatures obey the lord , but man the chiefe creature , which the lord created according to his owne image . and therefore said cicero , legi obediunt maria , terraeque , & hominum vitaiussis supraemaelegis obtemperat , the heauens , the earth , the sea , and all men liuing , obey the supreme lawe , which is the lawe of god , which cicero calleth the lawe of nature , lex est illa circaea virga , qua taetaeferae , hominesque , mitescunt . lawe is the rod apointed to tame man and beast . the fraud of giezi , elizeus seruant , because he went secretly like a theese , after naman the syrian , and made a large lye that elizeus his maister sent for a tallent of siluer , and two garments , the prophet beeing his maister , gaue sentence on him , that the leprosie of naman shoulde cleaue and sticke to him for euer : giezi heere stole nothing , but onely for his falsehood and lyes , which with sacriledge and robberies , stealing of cattell , fraud , deceit , and the like , are included within the precept of stealing , for the law is , thou shalt not steale , nor deale falsly , neither lie one to another , thou shalt not do thy neighbour wrong , neither robbe him . the vision of the flying booke , signified the curse of theeues , and such as abuse the name of the lorde with oathes , for all theeues and swearers shall be iudged by this booke , for this booke shall remaine in theeues houses , and in the houses of them that sweare falsly by my name saith the lord , and shall consume them with the timber and stones thereof . many poore theeues are fettered & chained in prisons , but great and publike theeues are cloathed in gold and purple . such was heliodorus that came to robbe the temple of ierusalem from king zaleucus , who was so scourged and whipt , that for golde and siluer , he had stripes and stroakes , that scarse thence he escaped aliue . so should shesac king of egipt , antiochus king of syria , pompey the great , and mar. crassus the romain consul , these foure great mightie theeues , had bene as wel plagued and punished , as heliodorus was , when they robd the temple , had it not bene for the great sinnes of iudah and ierusalem . many like dyonisius , after he spoyled the temple of proserpina in locris , and sailing with a good gale of wind from locris to syracusa , see ( said he ) to his mates & fellowes , how prosperously we saile after this our sacriledge . many againe robbe in scoffing sort , like the same dyonisius the tyrant , who tooke the golden garment from iupiter olimpian in peloponesus , saying , that it was too heauie for sommer , and too colde for winter , and therefore he commaunded that iupiter should be cloathed with a woollen garment , light for sommer , and warme for winter ; many such like sacriledges are scoffingly committed in christian churches . many make but a ieast of theyr theeuerye and falshood with dyonisius , who when hee had taken the golden beard of aesculapius away , said , it was no reason the sonne should weare a beard , seeing his father appollo had none . if any man be found stealing any of his brethren the children of israel , and selleth him , the thiefe shall die for the same ; the like is spoken to him that taketh the neather or vpper milstone to pledge . the seuere lawes that they had in phrygia against theft , were such , that hee that stole but a ploughe share from the fielde , or a forke , or a rake from a meadowe , should by the lawe in phrygia die . in athens the lawes of draco were so hard & streight against theft , that for the least filching or stealing , the theefe should die for it . if any man in athens should steale hearbes to make pottage , or to take some dung of beasts for to dung his owne ground , from another mans ground , it was by dracoes lawe a capitall crime . he that borrowed a horse of his neighbour , and would ride further then the place appointed , by the lawe of draco hee might haue an action ; and therefore demades saide , that dracoes lawes were leges sanguine scriptae , lawes written with blood : the least fault in athens , by the lawe of draco was punished with death , which lawes by solon his successor were mittigated . among the indians though adultery was left vnpunished , as it was among the scythians , yet theft was most odious to both these nations , and most sharply to be punished by the lawes of india and scythia . in all countries among all nations , theeues were diuersly punished . in egipt the lawe of bocchoris was such against theft , that if the theefe after hee had stolne any thing had brought his stealth willingly of himselfe vnto the chiefe priest called princeps sacerdotum , before he was accused of it , he that lost the goods , should write the time , the day and the houre when it was lost , vnto the priest , and should haue again three parts of his goods , & the theefe should haue the fourth part that stole it , for that he confest it before he was accused , which is according to moses lawe , that if the theft be found in the theeues hands , he shall restore double ; but if a theefe steale an oxe or a sheepe and kill it , or sell it , he shall restore fiue oxen for an oxe , and foure sheepe for a sheepe , for in the ciuil lawe it is written , propter manifestum furtum restituatur quadruplum . the romanes therefore verie carefull hereof , kept in their capitoll dogges quicke for smelling and sent , and fed geese for sacrifice to iuno , quicke of hearing , lest theeues should rob the capitoll , and so manliu●… by geese , saued not only the capitoll , but rome it selfe from the gaules . another lawe of bocchoris , that if any were accused falsly of theft in egipt , before a iudge , the lawe was , that hee which wrongfully accused the partie , should suffer that punishment which was due to him that was accused , if he had committed the fault ; so is moses lawe , that if a false witnesse accuse a man of trespasse , before●… iudge , and be not able to proue it , then shall the iudge do vnto the false witnesse as hee had thought to haue done vnto his brother . charondas made a lawe in fauour and education of orphants , that the wealth and legacies which were left vnto them by their parents , should be answered to the orphants by the next of theyr fathers kindred , when they came to age , and the orphants to bee brought vp with the next of their mothers kindred , & therfore charondas made this lawe , least the fathers kindred or mothers kindred should deceiue the orphants either by any fraud , deceit , or guile , which is plaine theft . the like lawe made solon in athens , as charondas made among the thurians and carthagineans , least , any fraude or deceit should bee practised against infants or orphants , and therefore the indians vsed none of the kindred or of the bloud of the orphants , but two straungers as tutors and gardens to answere to the pupuls their goods and legacies according to the lawe of india . among the persians as among the indians , the lawe was , that the patrons that deceiued their clients should die for it ; so was the law of the . tables , as wel among the romanes as among the grecians , patronus si clienti fraudem fecerit sacer esto . the daughters of zalphod were restored to theyr fathers heritage , for the lord commaunded moses that hee should turne the inheritance of theyr father vnto them , and gaue them a possession to inherit among their fathers bretheren ; this is the lawe of the lord , if a man die and haue no sonne , his inheritance shall turne to his daughter , if hee haue no daughter , to his bretheren , if hee haue no bretheren , to his fathers bretheren . among the arabians the lawe was , that the eldest brother was allowed to the inheritance before the eldest sonne . in aethiopia in like manner not the kings children , but his brothers childrē should succeed him in the kingdome . among the lycians also , the daughters and not the sonnes should be their fathers heires , neither were they named after their fathers name , but after their mothers name . this is against voconius lawe in rome called plaebiscita , for that he was tribune of the people , by the which law it was lawful that no woman should haue ( though she were the onely daughter of her father ) but the fourth part ; and because women grew so rich by patrimonie and by legacies , domitianus the emperour confirmed voconius lawe , and made a decree that no defamed woman should possesse the heritage of her father , neither should she be carried in a coach , were shee euer so great or so rich ; for the lawe was , nequis etiam census vnicam relinqueret filiam haeredem , contrarie to the law of the . tables , which was , that the testator might dispose of his goods as pleased himselfe , according to the lawe , vti legasset suae reiquisque , ita ius esto . therefore the lawe commaunds iust and true dealings to be exercised and embraced as well in words as in deedes , for negatiue commaundements include in themselues affirmatiues , as , thou shalt doo no murther , therefore thou must aide and helpe thy neighbour , wherefore we must loue our neighbours in heart , and wish them no more harme then to our selues , and shewe the same in word and deed . such loue was in moses and in paul , that the one wished to be put out of the booke of life to saue the people from destruction , the other of meere loue wished to be accursed for their bretheren to do them good . such is the nature of perfect loue , that abraham prayed for the zodomites , and moses for pharao and the egiptians , though they were wicked people ; for that is the lawe , loue your enemies , and do good to them that hate you . so stephen the first martyr , following the example of his maister christ , prayed for them that stoned him , for all vertues haue their force & power from praiers , faith is strengthened by praiers , loue confirmed by praiers , and repentance continued by praiers . in the eleuenth regimēt is described the diuers kinds of thefts , of vsurie , and slaunder , and of lawes prouided for the punishment of the same . the lawe commaundeth , thou shalt not steale , which containeth not onely all kinde of falsehood , fraude and deceit , as before is spoken , but also iustice , equitie , charitie , and conscience . such was the iustice of abraham to his nephew lot , that though their seruants contended and fell out , yet they both agreed , for abraham vsed great iustice , diuided their portions equally into two parts , and gaue the choosing thereof to lot. the like iustice was betweene iacob , and his father in lawe laban , seperate thou or i said iacob , all the sheepe which haue great spots , and little spots , and all blacke lambes among the sheepe shall be my portion and wages , and euery one that is not black , nor 〈◊〉 ted among the sheepe and the lambes , shall be the 〈◊〉 to me , for my righteousnes shall answere for me . thus were they in auncient time instructed by the law of nature to loue one another , and to vse iustice and charitie . a heathen man could say almost so much , prudentia non vult falli nec fallere potest ; that a wise man neither can , nor will be deceiued . in like sort , thou shalt not commit adultery ; and therefore the lawe commandeth men to be chast , sober , and temperate , both in bodie and minde ; for the lawe requireth inward and outward obedience , as well in angels as in men , for outward euil springs from inward corruption ; murther proceeds from hatred and malice of the heart ; adultery commeth from wicked and filthie lust of the heart ; theft is falshood and fraude in the heart ; to steale other mens goods , therefore to do , or to wish any thing against the lawe is sinne : for the lawe is spirituall , and he that is not subiect to the lawe , saith paul is subiect to the wrath of the lorde , for by the lawe we know our sinnes , and in the lawe , consisteth the knowledge of our life ; for the lord hath decreed a necessiti●… of obedience to the lawes of ciuil magistrates ; for it is said , inuictae leges necessitatis , and though the law doth accuse all men , yet the lawe doth freely promise with a condition of obedience , as the gospell promiseth with a conditiō of faith , for as by the lawe we see as in a glasse the corruption of nature , and deformitie of sinne , so by the lawe we are taught what is to be done , and by the gospell , how things ought to be done . among the romaines for the space of . yearer , welnigh after the building of rome , they had no lawes written , but ius regis , before they sent for the lawe of the . tables , from athens , which law was so obscure , that they brought hermadorus from greece to rome , to interpret the lawes of the . tables , which lawe against theft was so seuerely executed , that it was lawfull to kill a theefe , that would not yeld , especially in the night time ; for the lawe was , sifurtum sit factum nocte , si eum aliquis occidit , iure caesus esto , if a theefe be found breaking any mans house in the night time , & be smitten to death , no bloud must be shead for him , which is also moses law , except the sunne be vp when he is found ; but if a theefe were taken in the day time with his theft with him , hee was by the lawe of the . tables , to become his slaue and bondman , of whom he stole it , & to be vsed as pleased the partie all his life time after . an other lawe of the twelue tables against other iniuries was , that if any mans seruant had stolne any thing , or his beast had done harme , or endamaged his neighbour , or a straunger , he was to yeeld his seruant , or his beast that so offended , to the party grieued , and so by the lawe of the . tables , the maister of the seruant was free ; for a theefe that cannot make restitution for his theft , must be solde , according to moses lawe . the seuerest lawe among the romanes , was lex iulia , which appointed iust punishment for treason , adulterie , and theft : by lex iulia in rome , theft was as seuerely punished as adulterie , and adulterie punished as treason , for the lawe saith , a man must not robbe , for theeues are accursed , men must haue no conuersation with theeues . also there was a lawe in lycia , that if a free man should steale any thing , he should loose his freedome , and become a bond-seruant to him of whome hee stole it , and by the lawe of lycia neuer after to recouer his libertie , but to liue as a bondman all his life time . bocchoris lawe in egipt was , that if any wayfaring man finde a man in daunger of his life , and so to be slain by theeues and robbers , and not helpe him , eyther by his sloathfulnesse or negligence , if he could , hee was by the lawe of bocchoris guiltie of death , because hee did not ayde and helpe him with all meanes possible hee could . againe if a man were robd by theeues on the way , though he were not killed , and not rescued of any that could , and neglecting to follow after the theeues , hee or they ( by the lawe of bocchoris ) were punished and beaten with a certaine number of stripes , and kept without victualls three daies . licurgus made no lawes in sparta against theft , for it was lawfull by licurgus lawe , among the lacedemonians to vse theft , vnlesse the partie were taken with the theft ; which if he were , he should be seuerely punished , following the maner and custome of the egiptians , and the old germanes , which had no lawe written against theft , but left vnpunished , and therfore there is no transgression , where there is no lawe . there was then , and is now a greater kinde of theft then stealing among diuers nations , which is vsurie , forbidden by the lawes of god , as well as theft , for before bocchoris lawe , which banished vsurie , the lawe was in egipt , that the creditors might arrest the bodies of the dead for debts , and that they should be vnburied till the depts were paid , pecunia est enim anima & sanguis mortalibus , which lawe was abrogated by bocchoris , that debts onely should be paid of the goods of the debters , and not their bodies to be imprisoned , for that they should be alwaies readie for defence of their countrey , and not imprisoned either for debt , or vsurie . solon brought this lawe from egipt vnto athens , and called it sysacthia , against vsurers . this lawe was after executed in the market place of athens by agis , who extreamely hated vsurie , where hee burnt all the vsurers writing tables , of which fire agesilaus was wont to say , that he neuer lawe a better fire in egipt , persia , nor in greece , then when agis burnt all the writing tables of the vsurers in the market place at athens , for before solon brought this law from egipt vnto athens , dead mens bodies might be arrested , and an actiō might be had before the magistrate called zeteta , for satisfaction of debts in athens . therefore solons lawe was , that no man should credit the sonne while the father liued , & to auoyd further daungers , least the sonne should practise against the father ( which children do vse against their parents ) the law was , that he which would c●…dit the sonne , during the life of the father , should haue no action against the son , after the fathers death . so hatefull was vsurie among ( welnigh ) all nations , that where punishment of theft was but double , punishment of vsurie was quadruple , and therfore lu. genutius , tribune of the people in rome , abrogated former lawes of vsurie in rome . lucullus in his victorie ouer asia , among other romanie lawes which hee gaue them , set all asia free , and at libertie from vsurie . so cato made a lawe , that no vsurer should dwell within the prouince of cicilia . so also licurgus made a lawe to bannish vsurie so farre from sparta , that it should neuer be named , nor spoken of within sparta . the lawe of moses among the hebrewes was , thou shalt not giue to vsurie to thy brother , as vsurie of money , vsurie of meate , or vsurie of any thing that is put to vsurie , thou shalt take no vsurie or aduantage of him , but thou shalt feare thy god , that thy brother may liue with thee ; if thou take thy neighbours rayment to pledge , thou shalt restore it vnto him before the sunne goe downe , ye shall not oppresse the poore with vsurie . an example therof in the gospell , a seruant ought to his maister ten thousand talents , and vpon intreatie his maister loosed him , and forgaue him the debt , but that seruant went out , and found one of his fellowes that ought him an hundred pence , laid hands on him , tooke him by the throate , and cast him into prison without compassion , vntill the debts were payd . there is an other kinde of theft which is not the least , to steale the good name and fame of any man by scandalous tongues , and therefore it was not lawfull in athens , not so much as to reach the longest finger towards any man , for it was a note of infamie , as though he should call him catapygos , a dog or a beast . likewise if any would call a man hodidocos , or sycophant in athens , he might haue an action by the lawe of solon , before the iudges called areopagitae . so to call a man in egipt an asse , an action might bee had by the lawe of bocchoris against the partie . the like lawe was in persia against those that would call a man a coward . the lawe of christ set downe in the gospell , is , that whosoeuer calleth his brother racha , or a foole , is in danger of iudgement : so it is commaunded by the lawe of moses , that none shall goe vp and downe with slaunderous tongues , to tell tales among the people , for the punishment of this fault is stripes , or amerciaments by the same lawe . and therefore he that will see good dayes , must refraine his tongue from euil , and his lips that they speake no guile , saith the prophet , liber a animā meam à labijs iniquis & lingua dolosae . the tongue is fire , yea a world of wickednesse , it defileth the whole body , it setteth on fire the curse of nature , wee put bittes into the horses mouthes , that they should obey vs , and we turne them about as we list . and therfore saith xenophon , omnibus animalibus facilius est quàm hominibus imperitare , all creatures are more obedient to the lawe then man. shippes which though they bee so great , yet are they turned about with a very small rudder ; our of one mouth proceedeth blessings & cursings , with the which we blesse god , and curse men , which are made after the similitude of god ; all things are tamed by man , but the tongue can no man tame , for it is an vnruly euill , full of deadly poison . thou shalt not slaunder thy neighbour , neither shalt thou hate thy brother in thy heart . these and many such iudiciall lawes are set downe in the lawe of moses . therefore said salomon , he that keepeth his mouth , keepeth his life , but the wicked mans tongue is full of slaunder and shame ; futiles in vtiles , and therefore it is great wisedome not to beleeue any thing rashly , for it was euer good counsel , caue cui credas neruus sapientiae est , and therefore the punishment of the tongue , was in diuers countries diuersly punished . and therefore alexander the great reading certaine secret letters , suffered his onely friend ephestion to read the same letters , and after ephestion had read them , alexander tooke his signet & laide it on ephestions mouth , as a seale to keep silence , and said , anima consilij secretum . and therefore the punishment of the tongue , was in diuers countries , diuersly punished . in persia the tongue should be cut off , and nailed to a post , or to a pillar , in the market place . in egipt the tongue should be cut off , and sowed vpon the souldiers helmet ; in offending the lawe of armes , or for offending the state , hangd vpon their hats or caps . in other places for their blasphemy , itshould be hangd vpō pinnacles of temples , or on walles of cities to be eaten of fowles of the aire . the like lawe made plato for the hand that kild it selfe , that it should not be buried . yet augustus caesar , being perswaded by his friends , that one aelianus that spake hard of the emperor should be punished for his ill tongue , answered , no more but aelianus shal know that caesar augustus hath also a toong . the like answere gaue phillip of macedon to an ill tongued man , whom when his councell would haue him banished out of macedonia , god forbid said philip , he will speake worse of me in a straunge country , then in his owne . but ramyrus king of spaine , being so soft and so gentle of nature , that many of his nobles had him in contempt for his softnesse , but he at length in the midst of their contempt and of his softnesse , caused eleuen of them to be beheaded in the citie of osca ; saying , nescit vulpecula cā quo ludat ; for it is an old saying , it is dangerous to plaie with lyons ; leonē vellicare periculosum est . yet many slaunderous tongues with wicked counsell , euer practised mischiefe , as doigs counsell to saul against abimelich , achitophels counselto abs●…on , against dauid his father . but the counsell of daniel to nabuchodonozer , was to hate sinne by righteousnes , and his iniquitie by mercy towards the poore , such was the counsell of ioseph to pharao in egipt , in prouiding against the famin to come . many with the false prophet balaam , haue theyr tongues with israel , but their hearts with balaac . multi malum sub lingua , non in lingua habent . many there be like laban , that deceiued iacob for his wife , and gaue leah for rachel ; too many there be like the samaritans , that seemed in publique shewe to helpe the israelites to build the temple , and yet secretly in what they could hindred them . many such say with sigismundus the emperour , that he which cannot dissemble cannot liue , like tiberius , who onely preferred and commended his dissimulation , before all other his vertues ; for it was euer tiberius saying , nullam ex suis virtutibus magis quam dissimulationem diligebat . vlixes dissembling to be beside himselfe , least hee should go out of greece with agamemnon to the warres , palamides tried him with this stratagem , laid vlixes child before the plough share , whereby vlixes dissimulation was found out by palamides . so gedeon found out the ephraimites not to be true giliadites , by pronouncing the letter schiboleth , who slaundered the gileadites to be runnagates of ephraim , and therefore gedeon commaunded that none should passe ouer iorden , vnlesse he could pronounce schiboleth . the gibionites very cunningly dissembled how farre they came , what paine and trauell they tooke , to feeke the fauour of ioshua and the israelites . yet plato allowed dissimulations in princes and gouernours to effect some purpose , for said he , mendatie & fraude vti imperantes debere , ad comodum subditorum . there is nothing so necessary in a common-wealth saith cicero in some respect , as dissimulation , nunqua●… regent , qui non tegent . that made seneca to say , that in courts with kings and princes , dissimulation must haue chiefe place . fra●… enim sublimi regnat in aula . for if loue be not perfect nor esteemed and imbraced for it selfe , where shall we finde true friendship ? if all men be addicted to their priuate gaine without doing good to any man , or speaking wel ofany man , where shall we finde a beneficiall man to his countrey or to his friend ? for hee that thinketh to do good to another to gaine profit to himselfe , that man said cicero is not to be thought beneficiall to his friend nor to his country , but an vsurer to himselfe . the naturall societie among men , and mutuall loue ought to be such , that as cicero said , if any would ascend vp to the heauens to viewe the beautie and ornament thereof , vnsweete were the admirations he sawe , vnlesse it might be imparted to friends . so may wee speake of vngratefull and slaunderous men , who are not thankfull for any benefits done , and therefore an action might be had against vngratefull men among the macedonians , and be brought before a iudge , as if they were in debt , as debters , not requi●…ing one good turne with another , according to the lawe of nature , much like to charondas lawe , which forbad ciuil citizens to associate themselues with euil vngrateful men , which are as cicero saith , tanquā glabra ad libidinem via , which infect good men for being familiar with them , and therefore an action might be had by lawe against honest men for comming oft to the company of these wicked euil men . and so it was among the athenians , which had the like lawe against vnthankfull men ; for as demosthenes said , he that receiueth a benefit , ought euer to be mindfull to requite it , and he that benefites his friend ought to forget it , as a man bound to do any good he can by the lawe of nature , for so iust men are bound to do ; non solum iuxta leges sed legibus ipsis imperare . the wicked & vngratefull gergesites hunted christ out of their countrey , because he healed a man possessed of a diuel , they had rather haue their diuel dwell with them then christ ; they more esteemed their swine then the doctrine of christ , like the iewes who had made choice of barrabas the murtherer , before christ their sauiour . in the twelfth regiment is mentioned the seuerepunishment of false witnesse , together with the lawfull oathes of diuers godly men . the lawe is , that if any bee found that hath giuen false witnesse against his brother , let him stand before the lord and before the iudges , and you shall doo to him , as he thought to do to his brother , that life for life , eye for eye , tooth for tooth , hand for hand , and foote for foote , should goe ; a false witnesse shall no remaine vnpunished , and hee that speaketh lyes shallperish . againe , be no false witnesse against thy neighbour , hurt him not with thy lippes . this is the sentence of the lawe pronounced by the lord. he that priuily slaundereth his neighbour , him will i destroy ( saith the lord ) for he that telleth lyes shall not dwell in my house , nor tarrie in my sight , cursed is hee that striketh his neighbour secretly , and cursed is he that taketh reward to shead innocent bloud , and all the people shall say , amen . and for that lyes and periurie are knit together with false witnesse , we will examine the lawes of other nations with the lawes of god , and what punishment they haue for the same . foure hundred false witnesses did the prophet michaeas reproue of baals prophets , which counselled king achab to warre against the king of syria . did not one true prophet micheas , proue these . false prophets to be false witnesses against the lord ? but achab by the king of syria was slaine , as michaeas prophesied . so did elias kill foure hundred and fiftie false prophets of baal at the brooke kyson , for bearing false witnesse against the lord ; for they affirmed that baal was god. and the prophet daniel caused . of baals priests to be slaine at babilon , for their lyes and false witnesse to the people against the lord. these idolaters were the worst kinde of witnesses , because they bare false witnesse against the lord , to please nabuchodonozer & king achab. the two elders made themselues false witnesses against suzanna in babilon , they were found by daniel to be false witnesses and adulterous iudges , and were stoned to death according to the lawe . iezabel brought two false witnesses against naboth for his vineyard , to her husband king achab , and they said that they heard naboth curse god and the king , and naboth was caried out of the citie , and there they stoned him with stones to death ; but sentence was pronounced against him by elias the prophet , saying : in the same place where the dogs licked the bloud of naboth , shall the dogs licke the bloud of achab also . non magis potest mactari opima ioui , quàm rexiniquus . thales being demanded , what was the strongest thing that he sawe , answered , tyrannum senem . stephen was accused that he spake against the lord and moses , and the iewes brought two false witnesses against s. stephen , saying : this man neuer ceaseth to speake euill words against this place , the lawes , and the holy temple . how often fought the iewes meanes through false witnesse to condemne paul , crying out vpon him , this paul speaketh against this holy place , against the lawe , and against the people , and brought tertullus the orator , as a false witnesse to accuse and to plead against paul before faelix the romaine deputie . these forget the saying of the prophet michaeas , who cryed out and said , you iudges , you giue sentence for gifts ; ye priests , you teach for lucre ; ye prophets , you prophesie for money , you build vp syon with bloud , and ierusalem with doing wrong . what dare not false witnesse do , when they accused christ to be a gluttō , a bibber of wine , a blasphemer , denying tribute to caesar , for being a seducer of the people , a samaritan , a coniurer , and one that had the diuell , a breaker of the sabboth day , they wanted no false witnesse to proue all these things against christ , and yet against mar. cato , being accused by his enemies in rome fiftie seuerall times before the senators , they could not bring any one witnesse to prooue any thing against cato . aristophantes in athens , beeing accused before the iudges areopagitae , . times , he pleaded his cause , and shifted out himselfe from the maliee of his enemies , not able to bring one witnesse against him , that both cato in rome , and aristophantes in athens , were set at libertie , and yet the martyr stephen , the apostle paul , and the sonne of god himselfe , wanted no witnesses , but had all ierusalem to beare witnesse against them . zaleueus made many lawes , but especially religious and ceremoniall lawes , imitating his maister pythagoras , who was a very ceremoniall philosopher , he made a law that no man should go about to corrupt iustice or iudgement , either by periurie , false witnesse , or otherwise , and the punishment for those that brake zaleucus lawe , was not redeemed with money , but performed with shame and infamy , paines and tortures . and therefore bocchoris made the like lawe in egipt against periurers and false witnesses , as against those that brake their professed faith and religion towardes god , and violated their faith and bond of societie towards man , with no lesse punishment then with death . artaxerxes so hated lyes , that hee made a decree among the persians , that whosoeuer were found & proued a lyar , should haue his tongue set vnto a poste , or a pillar in the market place , fastned with three nailes thervnto . the lawes of moses to the israelites against any great offence , was to stone them , to burne them , or to run vpon them . the lawes of the indians against false witnesse was , to cut off the endes of all his fingers from his hands , and the ends of all his toes from his feete . the lawes of the persians as you heard by cambises and darius , was fleying and hanging against false witnesses and corrupt iudges , as you read of sandoces and sinetes . the punishment of false witnesse by the turkes , was and is executed in this sort , that hee shall bee set on a mule with his face backwards , holding the tayle of the mule for a bridle in his hand , and so to bee carried round about through euery streete of the towne , and after burned in the forehead with two letters , as a marke of false witnesse . by the lawe of the . tables among the romanes , he that was conuicted for a false witnesse , should bee throwne headlong downe frō the rocke tarpeia , which lawe was first exercised and executed in egipt , and a long time after brought from athens to rome . for the law among the egiptians was , that false wie nesses should pe punished with the like death . the indians had the like lawe as the persians had , that if any man were found three times a lyar , what state soeuer he were of , he should be neither magistrate nor officer , during his life , but should be depriued of all honour and credit , and lead his life priuate in silence ; and yet among the egiptians lyes were left without lawes vnpunished . the lawes of all countries were sharpe and seuere , against rebellious seruants and false witnesses , which like seditious serpents seeke secretly to forsake and defraude their maister both in word and deed . and therefore the testimonie of the seruant against their maister , by the lawe of romulus among the auntient romanes , was not admitted ; so that many of the late emperours of rome made a decree , that those seruants that would accuse their maisters , should be slaine as vngratefull and trecherous seruants . so did sylla vse sulpitius seruant for betraying of his maister , though sulpitius was syllas enemie . this continued vntil punishments were set downe , and appointed by lawe , for crimes and offences by seruants , as carrying a forke made like a gallowes on his shoulders , or with paucicapa , or burning markes in the foreheads , as the syracusans vsed to burne their bondseruants in the forehead with the print of a horse , to note them as their owne bond-slaues . melius enim est vitiosas partes sancare quàm execare . for the lawe doth respect no person otherwise then by iustice ; lawes then were made , how much , and how farre the authorities of maisters extended ouer their seruants . among the lacedemonians , the lawe of licurgus was so austere , that it was lawfull for their maisters to kill those wicked wilfull seruants , that would practise either by word or deed any falsehood against their maisters . alexander in his great furie , against all lawes , slew calistenes his seruant and philosopher , for some sharpe and quick words , yet calistenes spake but what he ought to speake , but not how he ought to speake . quae debebat , dicebat , sed non quomodo debebat . calistenes though a philosopher , yet hee forgot this lesson , facile prsse loqui cum rege , sed non de rege . heerein that which was spoken of hanibal , may be spoken of alexander : armis vicit , vitijs victus . but better could anaxarchus flatter alexander then calistenes , lamenting the dearh of clitus , whom he slew in his furie . art thou ignorant king alexander ( said anaxarchus ) how auntient wise men caused the image of iustice to stand by iupiter , that whatsoeuer iupiter had decreed , it was taken for a lawe , for that iustice was on his side . the like speech may bee spoken of iulia , procuring her sonne in lawe to offend with her . doest thou not know thou art an emperor , which makest law to others , and makest it not to thy selfe ? a lawe was made in athens , not onely against seruants , but against any trecherous man whatsoeuer , were he neuer so great , that though hee died in his countrey , yet should he not be buried in his countrey , but be carried out of the confines of athens ; so was phocion and others that were suspected of any treason . an other law among the grecians was , that he which prodigally and wilfully consumed his fathers patrimonie , should not be buried within his owne countrey of greece , so those kings of egipt , that neither obeyed , nor liued vnder the lawe while they liued , should not be buried in their pyramides : so were some of the kings of iudah and of israel , vnburied for breaking of the lawe . there was a lawe made by king agis in sparta , that the seruants called hilotae , for their rebellious sedition against their maisters , were condemned to be in perpetuall seruitude ; neither might their maisters make them free in sparta , neither might the seruaunts goe out of sparta , but liue there like bondslaues , and their posteritie after them , which should be called hilotae . oportes enim supplicia more patrio sumi , offenders most be punished , as aristotle saith , after the lawes and custome of the country . the like law made salomon against semeia , for that he tooke part with absalon against the king , railed and slaundered dauid , and threw stones at him , that if hee should but once goe out of ierusalem , he should die for it , by the sentence of salomon . and so in athens the like lawe was made , that those that the athenians ouercame at the riuer hister , they and theyr posteritie should be as captiues and bondslaues in perpetuall bondage , with one name giuen to them and theyr posteritie called getae , as hilotae were in sparta . among the persians , their lawe was , that the seruant being bought with money , that fled afterwards from his maister , beeing taken , hee should be fettered and bound in chaines , and so bound to serue his maister . false witnesses are lyars , periurers , and blasphemers , either with periured tongues for a mans life , or with slaunderous tongues for his name and good fame , calling god to be witnesse of vntruth ; so the false prophets and priests of baal did , whom elias therefore destroyed at the brooke kyson , false witnesse is a murtherer of his neighbours , false witnesse selleth bloud for money , a theefe that selleth mens lands , liuings and liues secretly ; for it is written in the lawe of moses , that thou shalt not remoue thy neighbours marke which they of olde time haue set in thine inheritance . so numa pomp. made the selfe same lawe in rome , that whosoeuer would plough vp , any of his neighbors markes or meeres , both he and his oxen should be slaine and sacrificed to god terminus , vpon the very meere where the offence was done . false witnesse is a defamer and slaunderer of mens credite , and therefore the lawe of the twelue tables saith , siquis occentauisset , aut carmen condidisset quod infamiam faceret flagitiumque alteri capitale sit , if any would write slaunderous libelles , or infamous verses , touching a mans credite , good name and fame , he should die for it . the selfe same lawe was by solon made in athens , that vpon any slaunders or nicknames an action might be had before the iudges areopagites . how much more false witnesses and periurers , that seeke mens liues by false oathes are to bee punished , whose conscience are burned with hotte irons , of whom is said , conscientia , pietatis lacinia , for you shall not sweare by my name falsely saith the lord , neither shall you defile the name of your god. the lord though he commaunded his people that they should not sweare at all , neither by heauen , for it is the lords throane , neither by the earth , for it is his footestoole , for the scripture vsed the speech of the lord for an oath , dixit dominus , it was an oath , and the lord sware by the excellencie of iacob , he sware by himselfe , per me ipsum iuraui . oathes may bee well and iustly required in lawfull causes , for abraham made his seruant to sweare by the god of heauen and earth , not to take a wife to his sonne isaac , of the daughters of the canaanites , but of his owne stocke and kindred , and therefore hee caused his seruant to lay his hand vnder his thigh , which ceremony declareth the dutie and obedience the seruant should haue to his maister . iacob sware the like oath , as his grandfather abraham did , and caused ioseph his sonne to put his hand vnder his thigh , as an oath that he should not suffer him to be buried in egipt , but to be brought from egipt to haebron , to the field machpela●… , and there to be buried with his fathers . abimelech requested abraham to sweare , iura per deum , ne noceas mihi , nec stirpimeae , and abraham sware vnto abimelech , and named the place where they both sware berseba . iacob sware vnto laban his father in law , pertimorem in patrissui , by the feare of his father . dauid sware against nabal , and said , hocfaciat mihi dominus , thus god do vnto me , if i leaue nabal a head , for that he denied me and my company a little victualls , being a hungrie . salomon sware vnto his mother , by the lord , thus god do vnto me , if adoniah liue , for that by seeking abizaig he seeketh also the kingdome . elias the prophet sware vnto achab king of israel , viuit dominus , as sure as the lord liueth . so elize●…s sware vnto elias the like oath , viuit dominus , i will not forsake thee : this kind of oath is often vsed in scripture , as the lord liueth , or as thy soule liueth . paul the apostle vsed this oath , god is my witnesse , whom i feare : in an other place , testem deum inuoco in animam meam , i call god to witnesse to my soule : and againe , god knoweth that i lye not . in the thirteenth regiment is set downe the danger and inconveniences that hapned by ambition , and what lawes diuers countries made to banish the same . the states of princes and countries are euer in most danger , where ambitious men be , who fearing nothing at all secretly to speake against princes and magistrates ambitiously , whose ambitious nature seekes not onely to rule and raigne , but also to practise ( without feare ) through pollicie , to vndermine states , and to ouerthrowe their countrey through ambition . pacem contemnentes & gloriam appetentes pacem & gloriam perdunt . of these men plato saith : siquis priuatim sine publico scitu , pacem bellumuè fecerit , capitale esto . ambitious men are not so glad and proud to see many follow them and obey them , as they are spitefull and disdainfull against any one man that esteemes them not ; so ambitious and proud was ammon , that he could not endure the sight of mardochaeus . the ambition of abimelech was such , that hee slew three score and eight lawfull sonnes of gedeon , his bretheren , vpon one stone , to become a iudge in israel , himselfe , being but a bastard . absolon the naturall sonne of dauid , went most ambitiously about to winne the hearts of israel from his father , embracing and kissing euery one that came vnto him , saying ; i wish there were some that would minister iustice to the people . such is the nature of ambitious men , qui honores quieta repub : desperant , perturbata , se consequi posse arbitrantur . can a man goe barefooted on thornes , and not bee prickt ? can a man put coles in his bosome , and not bee burnt ? can a man be ambitious , and not be trecherous ? for ambition claspeth enuie , as the iuye claspeth the oake , and as the iuye sucketh all the moysture of the oake , so enuie sucketh all the moysture of the ambitious man. what was the end of ammon for his ambition ? to be hanged vpon the selfe-same gallowes which he prepared for mardocheus . what got abimelech by his ambition and murthering of his bretheren , but to haue his braine panne broken and slaine , and that by a woman in the cittie of argos . the end of absolon was no better , but to be brought by his owne mule , and to be hanged by the haire of his owne head in the wood of ephraim , where his mule left him . impia proditio celeri paena uindicanda . had these ambitious men obserued the three precepts which brasidas taught his countrey men the athenians , velle , vereri , & obedire , they might haue died a more honourable death , then to be hanged and killed by those whom they sought ambitiously to destroy by their next kinred , and chiefe friends . these bee such men , qui suam sibi fortunam fingunt . the like lawe was appointed by plato for treason , as for sacriledge , iudices istis proditoribus dantur , qui sacrilegis solent : for as philip of maecedon was wont to say , amare se prodituros non proditores , so augustus caesar after him vsed the like wordes ; proditionem non proditores amo . and therefore corah , dathan , and abiron , and all their complices , to the number of two hundred and fiftie , were swallowed vp of the earth aliue , for theyr ambitious murmuring against moses . the lord spared neither aaron , moses brother , nor myria his sister for the like offence ; so seuere was the lord in his lawes , that he spared not moses himselfe . and therefore zaleucus made a lawe among the locreans , to suppresse the pride and insolencie of great men , who did more harme theyr countrey through pride and ambition , then they did profit theyr countrey by iust and true dealing . the like lawe against ambitious men , was made in syracusa , which secretly sought through ambition to excell others in singularitie , both in wisedome and in wealth , and therefore were they banished for fiue yeares out of syracusa , according to the lawe which was made against ambitiō called petalismus , least their greatnesse through ambition should do more harme to their countrey , then good . in rome for a time ambition was not knowne ; vntill the romaines grew great out of italy , then cai. petilius tribune of the people , made a lawe , that no man through ambition , which then grew in rome , together with the greatnesse of the empire , should make meanes by money or reward to beare office in rome . after petilius , cincius decreed an other straight lawe against ambitious meanes to become magistrates , that none of the patricians , or any other that were ambitious to become magistrates or officers in rome , should come in a gowne or any long garment into the senate , least they should carrie money secretly in their bosome , to corrupt the people , for the choosing of censors , praetors , consuls , and other officers , were in the election of the people both in rome and in athens alike ; for there was nothing in rome but forum & senatus , lawes decreed in the senate by the senators , and weapons in the market place by the tribune ansd the people , to resist the same . the lawe of cass. longinus , tribune of the people was , that euery tribe by it selfe of the . should bring their seuerall tables , where the voyces of the people were secretly prickt to auoyd ambition and quarels , which lawe was called lex tabellaria . an other lawe among the romanes was , to auoyd ambition among the people , that the senators with the consent of the people , should elect one consul , and that consul so chosen , should choose one of his own friends to be his fellow consul ; for it was not lawfull for both the consuls at one time to haue serieants to beare maces before them , but one after an other monethly ; neyther might a consul be chosen againe within ten yeares after his consulship , which lawes were made onely to auoyd ambition . the like law was among the thaebans against merchants that were called mercurij proles , which hunted for priuate profits , and gaped for gaine , which forbad them that had bene officers within ten yeares after , not to be chosen gouernours againe in that office , for that merchants be not fit men to be magistrates : and as aristotle saieth , parum generosa haec ratio , vitae & vertuti aduersa . against which demosthenes exclaimed in his bannishment , the three monsters of athens , populus , noctua , and draco , but two of these monsters ruled alwaies in rome and in athens , noctua & populus , men and money . and therefore the lawe ostracismus was made in a thens against such ambitious men , as would secretly seeke to growe into greatnesse to win the fauour of the people , that they should be banished out of athens for tenne yeares , as themistocles , alcibades , demosthenes , and others . this lawe of ostracismus , was euer readie in a thens , so long against the greatnesse of ambitious men , that at length it grewe against base men that would practise any sinister meanes among the people . for it was a practise among the athenian , least one should growe greater then an other , to make this lawe ostracismus , according to aristotles rule , neminem vnum magnum facere , communis custodia principatas . the kings of egipt that did not minister iustice rightly , nor obserue the lawe iustly while they liued , might not be buried after they dyed , for it was lawfull for any man to accuse the kings of egipt , before they were buried , of any ambition , iniustice , or crime , before committed against the law , for nothing was more ignominious to the kings of egipt , then to bee depriued of their burialls , which made them liue more circumspectly , vsing iustice and obseruing the lawe . but what were the kings of egipt better to be buried in sweete odours in their pyramides , or the heathen princes of the world to be buried in suis mausoleis ? was not poore lazarus better in abrahams bosome , then the rich man tormented in hell ? for hee cannot bee ill buried wheresoeuer he is buried that dyeth well ; neyther can he dye ill , wheresoeuer , or howsoeuer he dieth , that liueth well ; and therefore , non potest male mori , qui bene vixcrit , saith augustine . a people in india called pedalij , among other theyr vowes and prayers , they wished nothing to bee graunted vnto them of the gods , but to be iust , and to vse iustice . appollonius thianeus the philosophers wish was , pa●…a habere & nullius in digere , and to knowe good and iust men , and to auoyd the company of wicked and vniust men . socrates wish was , to haue a sound minde in a sound body . in eliopolis , a cittie of egipt , the image of iustice was set vp in the market place without a head , and on the right side of iustice , the image of a king was painted blinde , without eyes , because he should not see his friends nor foes , but gouerne without affections ; and on the left side of iustice , the image of a iudge was painted without handes , because hee should not receiue bribes , and be corrupted in his iudgement , iuditij venenum sua cuique vtilitas , and therefore the iudges called areopagitae in athens , might not sit on life and death in the day time , while the sunne were vp ; but in the night , because they might not see the prisoner in the face , to moue affections , but to heare theyr causes to do iustice ; so is the lawe of the lorde ; accept not the face of the poore , feare not the face of the mightie . so the philosopher could say , deus enim nusquam & nunquam iniurius , semper iustissimus . a philosopher after hee had seene these pictures at eliopolis , hee caused the picture of an ambitious magistrate to be painted without legges , because hee should not climbe too high , saying , agesilaus climbes in sparta , to ouerthrowe thaebes , and epaminondas climbes in thaebes to ouercome sparta . this is that ambition euery where , quae frontem aperit & mentem tegit . but these ambitious men remember not lots wife , who seeking to saue her life by looking back on sodome , she lost both her selfe , sodome and zegor . so that among all nations in all countreys , ambitious men are such , that some with absolon , seeke to plant and set their names on earth by some monuments of fame , but die ignominiously without monuments or fame , like absolon . some with sebna build them sumptuous tombes in theyr owne countrey , but are buried in an other countrey . some with achab build them iuorie houses , who most ambitiously sought naboths vineyard , but hee did not long enioy it ; and some seeke with nimrod to build towers in the ayre , like to the king of mexico , when hee is sworne at the first comming to the kingdome , who among other oathes must sweare , that the sunne must keepe his course , shyning alwaies in sight ; that the cloudes must let raine fall downe ; that the riuers must runne their course , and that the earth must bring forth all kinde of fruites . these kinde of men search those things that be vnder the earth , and those things that be aboue the heauens , satagunt inquirentes ( saith plato ) quae subter terram & quae super caelum sunt . we read of antiochus , after hee had taken ierusalem , after such slaughter of men , women , virgins , children , and infants , that within three daies there was slain foure score thousand , and as many solde as were slaine , and . taken prisoners , after he had taken a thousand and eight hundred talents out of the temple , he went with such a haughtie proude minde from ierusalem to antioch , as xerxes went from persia into greece , thinking in his pride to make men saile vpon drie lande , and to walke vpon the seas , but as they liued both , so they dyed , the one miserably murthered in his owne country , the other most miserably dyed out of his countrey . these and such ambitious men , in seeking to build their great name and fame on earth , as xerxes and antiochus , they become so odious and contemptible in their own country , as ammon was in persia among the iewes , whose name when the iewes heard of , they beate and stampt on the ground with theyr feete , because they would not heare his name : for the like ambition the name of hercules might not be mentioned among the dardanians , nor the name of achilles among the taenedians , for that they destroyed both these countreys . to forget these great iniuries , thrasibulus made a lawe in athens called amnestia , because the crueltie of the thirtie tyrants , which caused the children to daunce in their fathers bloud in athens , might no further bee remembred , least by reuenging of the same , more bloud should be lost , much like the dictators in rome , who might put to death any free cittizen at theyr pleasure . so did opimius , vsurping the office of a dictator , beeing but consul , caused gracchus , fuluius , and diuers other cittizens to bee slaine . but after iulius caesar became the first emperour , and perpetuus dictator , the other emperours that succeeded him , claiming the like authoritie , made such lawes in rome as pleased themselues , sit fortitudo nostra lex iniusticiae , for when the honour of the senators were abrogated , and past by hortensius lawe vnder the emperour caesar and his successors , that they onely made such lawes as were called placita principum , without authoritie of the senators , or counsel of the people , which were accepted as lawes among the romaines , during the time of the emperors , as iusregis was in rome during the raigne of the kings . the law called plebiscita , made by the tribune of the people , could not be allowed vnlesse it were confirmed by the senators , neither could the law made by senators called senatus consultus , be allowed without the voyce of the people . in like sort responsa prudētū , for that they had authoritie to enterpret the law in matters of controuersies , their sentence & iudgement was accepted as lawes , so that the body and whole summe ( welnigh ) of the ciuill lawe , consisted in these lawes before named . none might in auntient time among the romanes , be elected dictator , consul , praetor , or censor , vnlesse he were one of the patritians , but in time it grew , that the patricians and the plebeians were ioyned together , that one consul should be chosen by the patritians , the other by the people . this lawe called amnestia , was afterwards brought to rome from athens , and renewed by cicero , that they should forget the murthering of caesar , least a greater harme should come by reuenging of caesars death by ciuill warres , omni enim populo inest malignum quiddam & querulum in imperautes . this lawe was put in practise by the iewes in mazphah , for the trecherous murthering of godoliah by ambitious ismael , for they thought it best to put vp iniuries by forgetting of iniuries . but the lawe of draco in athens was , not to forget iniuries , as thrasibulus lawe was , neither to please the people , as the lawe of gracchus was in rome , but seuerely to punish the people , and that with such seueritie , that it was called according to his name , lex draconis , the lawe of a dragon ; for the least fault in athens , by the lawe of draco , during the time of his raigne , was punished with death , who for his lawes was strangled in aegina vppon the theaters , by the people . so that in rome , for the lawes which gracchus made to please the people , he himselfe , and diuers others were slaine . so in athens and in diuers other places , by offending the people too much by cruell lawes , they were strangled , killed , and slaine of the people for their lawes , as draco was in aegina , and perillus in agregutum , who found out the brazen bull to please the tyrant phalaris , who decreed by lawe a reward to those that would find out new kindes of torments and tortures to punish offenders . so xerxes promised great gifts and rewards to any that would finde out diuers straunge kinds of pleasures to feed his humour , as an epicure . of these kinde of fellowes aristotle saith , subtilia illa & ignea ingenia in assiduo motu , nouandis , quam rebus gerendis aptiora , and therefore rash young men must not bee magistrates , or officers , by aristotles rule . in the fourteenth regiment is set downe the change and alteration of diuers lawes ; of the libertie and tyrannie of some lawes : of the authoritie of soothsayers , both among the romaines and the grecians . heliogabalus , a monster and not an emperour , maintained rather women as senators to sit with him in councell in mount quirinal , to make lawes to feed his filthy humours , then the senators , which haue beene iudges , equall with kings in councell , after kings with consuls , after consuls with good emperours , for heliogabalus called the senators togatos seruos , to whom augustus caesar gaue great reuerence , in any publike assembly or meeting , and with whom in the senate house he sate in councell . facilius est errare naturam quàm sui dissimilem possit princeps formare rempub. so tiberius caesar and traiane , that whatsoeuer was done in rome , was then done by the senators with the consent of good emperours , which with the senators made lawes , and obeyed those lawes which they made , for vnum imperij corpus & vnius animoregendum : in so much that adrian the emperour , when hee sawe a proud citizen of rome walking in the market place betweene two senators , hee commaunded an officer to giue him first a buffet , and after to bring him to prison , for that hee made himsefe a fellowe and companion of senators , to whom he was scarce worthie to be a seruant . for the wise & prudent emperors of rome , were wont to haue learned & graue men with thē , as well in warres in their camp , as also for counsell at home ; for augustus would not allow in rome that libertie , which the indian philosophers allowed to the indians , for they thought it fond and foolish , sith the lawes were equall to all , but that euery man should be equally gouerned by the law , sith the lawe made all men free , that there should be no seruants in that part of india . farre from the athenians , who made so much of their freedome , for pericles lawe was , that none might be free in athens , vnlesse they were borne and their parents before them in the citie of athens . and it was the lawe of solon , that no stranger borne should haue ius ciuitatis , vnlesse hee with his house and houshold goods were for euer banished out of his country , or had comen to athens alicuius artis causa . but among the lacedemonians the maner was , that they that should be made free , should be crowned , with greene branches made of boughes of trees , and should goe round about the temples of that citie where they were made free . the ceremonies and manners of making free men among the auncient romanes was , that the seruants or bondmen should come with their heads shaued before the romane praetor , and there the serieant at the commaundement of the praetor , should strike them on the head three times , with a little rodde or wande , called virgula vindictae , and they that were so made free , were called manumissi vindicta . but if they were souldiers taken by the enemie , and had lost the libertie of their freedome , if afterwards they returned to rome , they should againe receiue their freedome , iure postliminij . but both those which were made free , cum virga vindictae , the rod of reuenge , and they which were taken by the enemies , should goe vnto the temple of feronea , and there they should receiue libertorum munia . after that the romaines became lords of italy , they graunted ius latij vnto the italians , which was the lawe then vsed within the citie of rome , and after they had conquered the most part of asia and affrike , both affrike and asia had ius latinitatis , which was the auntient law among the old italians to be ruled & gouerned by , for the romans would haue their romaine lawes and romaine magistrates to gouern those prouinces which they got with the sword . among the romains , during the time of their kings , they had no law but the sentence and iudgement of the king , in any great cause , and this lawe was called lex curiata by romulus , and by the rest of his successors continued during the time of kings : this lawe was without the consent of the people , but with the counsell & consent of the king and of the senators , and for that papirianus a learned romane , gathered these lawes together and recorded them into one volume , they were called ius papirianum . but when the name of kings was banished out of rome , and consuls created to be chiefe gouernours in rome , then the lawe was betweene the consuls and the senators called senatus consultus , then came in the authoritie of the people , and no lawe was allowed and ratified , but by consent of the people ; but when the people had voices to make lawes , so many lawes were made in rome , as one lawe confounded an other , against platoes rule , who euer preferred fewe lawes before many lawes , for said plato , corruptissima respub . vbi plurimae leges . that lawe which was made by the senators and consuls in rome , was not accepted , vnlesse it were allowed by the people ; for whatsoeuer the consuls and senators had determined , the people should be iudge thereof . so plyni with plato saide , that multiude of lawes were hurtfull , videat princeps nè ciuitas legibus fundata , legibus euertatur . so it was among the lacedemonians by licurgus law , that the people had authoritie and power to iudge of that which the kings and senators did determine . of these thus saith homer , popliuorus princeps populoiudice , cuipecuniam eripere , idem quod vitam . there was a lawe decreed in aegina , that hee that went about to inuent and bring in new lawes by abrogating the former , should die for it , for oftentimes , specie aliqua legum , leges euertunt . it is not so among the achaians , as it was among the romaines and the grecians , for in achaia there was no other lawe but what aratus set downe , and in syracusa no other lawe , but what timoleon said . yet the senators of rome might without the consent of the people call a senate , and make election of senators , they might also gouerne and rule the romane prouinces abroad ; they might dispense and distribute the money of the cōmon treasurie ; but for making of lawes , creating of magistrates , to make warres , or to conclude peace , the senators had no authoritie to do it , without the consent of the people . so that in time lawes were rather authorized in rome by force & weapons in the market place , then in the senate house by the senators , for populus comitiorom princeps bare sway euer in rome . so pompey by force of armes authorized caesars law to please the people , with diuision of lands , and distribution of corne , though cato spake bitterly against it , yet could hee not bee heard , but was by caesar beeing then consul , commanded to prison . they pleaded ius in armis , as pompey and lysander said , non cessabitis nobis gladio accinctis , leges praedicare . lex agraria was the most dangerous lawe among the romaines , for that the tribune of the people sought euer to please the people , by lands , by corne , or by any meanes to become strong by the people , which had the chiefest voyce in rome , that the tribune would often cōtroll the consuls , & resist the senators , as tiberius and cai. gracchus , marius , and fuluius , with others , preferred alwaies this lawe to please the people , but gracchus and fuluius lost their heads for it , & were carried vpon a pole to opimius the consul , who was then commaunded by the senators to resist the tribunes , and people-pleasers , for at that commaundement were slaine three thousand at rome , whose bodies were throwne into tiber. no common-wealth can bee without armes , no armes without stipend , no stipend without tribute , and therefore saith plato , quemque opes suas in censum deferre ad multa vtillia . neither were the magistrates called ephori , opposed against the kings in sparta without cause , by theopompus ; neither were they remoued afterwards without cause by king cleomenes , plena enim periculi aula . neither were the tribunes of the people in rome without cause , appointed to resist the consuls and senators , though sometimes they were reiected and suppressed , & sometimes slaine , for so was the old law of the twelue tables . salus populi suprema lex esto . the lacedemonians had also their senate of eight and twentie graue and auncient wise men , which by licurgus lawe should be . yeares old before they should be chosen and accepted to be of councell . the carthagineans in like manner made choice of . of their principall and chiefe men of carthage , called conipodes , to sit and determine in secret councell of the state of their citie , for the carthagineans though they followed charondas lawe , yet they imitated the lacedemonians in all other gouernment , as well in warreas in peace . so wearie were many nations of kings , that when the hebrewes sought to alter the gouernment of iudges to haue kings , the lord commaunded samuel to set downe to the hebrewes the lawes of kings , that they will take their sonnes , their daughters , the best of their fields , of their vineards , and of their oliue trees , & giue them to their seruaunts , and they shall take the best of their men-seruants , and their maid-seruants , their yong men and their asses , to do their worke withall . so the vine , the figge tree and the oliue , answered the trees which would haue a king ; shall we loose our fatnesse and sweetnesse to become a king ? notwithstanding the bramble would be a king ouer the trees . the storke also would accept to be king ouer the the frogges , though all nations desire generally rather to be ruled by one then by many , yet many that were elected kings would faine haue forsaken it . q. cincinnatus being taken from the plough to be a dictator in rome , & to weare togam praetextam , assoone as sixe moneths were expired ( so long the office of the dictatorship endured ) he returned again to his plough , according to salomons speech , better is a morsel of bread in a poore mans house peaceably , then to bee a consul or a dictator in rome among vnruly people . and therefore the ephori of sparta grew so ambitious , that they began to enuie their kings , and therefore deuised this lawe to expell their kings , to obserue the starres euery ninth yeare in a cleare bright night , which if they sawe any starre eyther shooting , sliding , or any way remouing from their place , they with the consent of the whole colledge of soothsayers , accused their kings that they had offended their gods , and therefore deposed their kings ; so were king agis , and king pausanias deposed from their kingdome by lysander . this was against the lawe of the lord , who said vnto iob , where wast thou when i placed hyades in theyr places , and plyades in their course ? canst thou know the course and orders of septentriones , and of other starres , and of the reason thereof , nunquid nosti rationem caeli , saith the lord ? against these starre-gazers plato writeth , men should not bee too curious to seeke causes supernaturall , and saith , nequè inquiri oportere , nec fas esse curiosè , satagere causas scrutantes . that was the cause why andronicus the emperour , hearing two learned men reasoning of the like , to say , if they would not leaue their curious and friuolous disputations , the riuer rindacus should be iudge betweene them , and end the controuersie , for , non sapit , qui nimis sapit . so were the priests called mantes in athens , of such authoritie , that nothing could be done in any publike councell concerning religion and matters of state , vnlesse they were in place present . the like lawe the romaines vsed euery fiftyeare , being taught and commaunded to bee obserued out of the bookes of the sybils , that vpon any appearances or sights of two sunnes together , or of three moones , or any other great causes , the soothsayers might remoue either consul or praetor from their place . the like ambition began in persia after cambises dyed , that it was not lawfull for the kings of persia to make any lawes otherwise then they were instructed by theyr magi ; neither was there any lawe made among the auntient romaines , without the counsell of their soothsayers , who were called interpretes iouis & nuntijdeorum ; for these lawes were called among the romains and the persians , leges augurales , but of these augural lawes , i haue toucht them in my booke of stratagems , which were as much esteemed and feared of captaines and souldiers , as their military lawes , for both the persians , grecians , and romains , followed the counsell of soothsayers in their warres , contrary to moses lawe , which forbad dreames and soothsaying to be vsed as the gentiles did , for saith the lawe , non declinetis ad magos . the superstitious error of the gentiles in their soothsayers grew to be so great , that if the soothsaiers said that esculapius beeing dead , could sooner restore health and minister medicine to the sicke by dreames , then galen could do by his art aliue , some would beleeue it , and therefore the pythagorians abstained from beanes when they went to sleepe , because it filleth rather the minde with vaine dreames , then the belley with good meate . if any soothsayers would say that serapis and minerua through diuination could minister medicine and restore the sicke vnto health without the helpe of phisitions , sooner then the phisitions themselues , these flatterers would be ( as they are ) accepted in court & countrey ; tanquā syrenes aulae , the gentiles would beleeue it , which as thucydides saith , are two most noysome things in a common-wealth , for nothing could be spoken so absurd , but some philosopher or other will maintaine it and defend it . the philosophers among the indians , which would either prognosticate or defend falsehood , or seeme to affirme that to be true which was false , they were by law for euer after commaunded to perpetuall silence . the lawe of diuination was such in all kingdomes and countries , eyther by fleeting of starres , flying of fowles , by intrailes of beasts , or by dreames , that whatsoeuer the soothsayers spake among the persians , grecians , and the romaines , it was taken for maximum & praestantissimum ius reipub ; for the words of the lawe were auspicia seruanto : for example therof , cicero reciteth many histories , and crisippus gathered many oracles together . but if the lawe of the gospell were so kept among christians , as the law of augurers was among the gentiles , and the words of the preacher were so obserued as the words of the soothsayers among pagans ; if mens affections were set on a heauenlycommon-wealth , vbi rex est veritas , lex charitas , & modus aeternitas , as worldlings are set on an earthly habitation , vbi rex est vanitas , lex infidelitas , & modus breuitas ; as it hath bene seene in the greeks , which first florished before the affricans ; in the affricans , which florished before the romains ; and in the romains , which flourished before the scythians ; and therefore in rebus cunctis , est morum , & temporum , & imperiorum vices ; so that all commo●… wealths , all kingdomes , and all countries , were ruled , are , and shall be gouerned , by diuine prouidence , from the beginning to the worlds ende . finis . a table containing a briefe summe of the whole booke . the old patriarkes liued vnder the lawe of nature . page . the lawe of nature is a short repetition of the lawe written . pa. the lawe writtten giuen to moses pa. ead . the credit and confirmation of lawes pa. chiefe magistrates and gouernors in diuers countries pa. the lord commaunded an aultar to be made pa. diuers aultars before the lawe written pa. ead . how they vsed to write in auntitient time . pa. the first image brought by rachel , iacobs wife pa. the image of belus in niniuie . pa. ead . ieroboam made two golden calues pa. ead . israel committed idolatry while moses was in the mount. pa. socrates poysoned in athens for religion pa. platoes opinion of poets and painters pa. ead . alcibiades banished from athens pa. clodius slaine in rome pa. ead . anacharsis slaine in scythia . pa. ead . the vowes and supplications of the gentiles pa. xerxes burnt the temples in greece pa. the rechabites lawes pa. ead . the prophet ahiahs speech to ieroboam pa. zaleucus lawes of religion to the locreans pa. licurgus lawe against straungers in sparta . pa. ead anaxagoras put to death . pa. the zeale of the gentiles in theyr religion pa. ead . cyrus confessed the god of israel pa. darius made a lawe that all dominions should feare the god of daniel pa. egipt the mother of all idolatrie . pa. the iewes obserued straightly the lawes of moses pa. diuers tooke vpon them to be the messias pa. idolatrous sacrifice of the gentiles pa. . no bloud offered in sacrifice by licurgus lawe pa. ead . paul called in athens spermologos of the philosophers . pa. molochs reaching hand and seuen chambers pa. punishment of corrupt iudges in persia pa. the lawe of the lord set downe by esay the prophet . pa. ead . of diuers kings blaspheming the name of the lord pa. . lysander and pompeys taunt to a lawyer pa. ceremoniall lawes of the gentiles pa. the gentiles builded diuers temples to their gods pa. ead . the manner of the dedication of the temples of the heathens . pa. the consecratiō of aaron by moses pa. by what authoritie all nations confirme their lawes . pa. the straight obseruation of the sabboth by the iewes . pa. the second building of the temple by the appointment of cyrus pa. ead diuers kindes of sabboths among the heathens pa. the blasphemie of nicanor . pa. how dearely the iewes esteemed their lawes pa. certaine romaines slaine by the iewes pa. the lawe of iud. machabaeus . pa. ead . among the heathens the sabboth of the lord was not knowne . pa. licurgus lawe for time to goe to battell pa. before the temple was made , the israelites came to sitoh . pa. the continuance of licurgus lawes pa. ead . charondas lawes against contemners of lawes pa. ead . licurgus lawe called rhetra . pa. the lawe of the . tables touching obedience pa. ead . the summe of lawes set downe by plato pa. the forme and manner of diuers appeales among the heathens . pa. the wise and graue iudges in diuers countries pa. lawes of all nations against disobedient children pa. corruption of iudges pa. good parents had ill children . pa. ead . markes of monuments and couenants pa. . the lawes and care of the kings of persia to bring vp their children pa. charondas lawe for education of children pa. ead . plato and anacharsis lawe for the education of the youth in greece pa. the romanes care for their children pa. ead . bocchoris lawes against idlenesse , and clippers of coyne . pa. the care of the hebrew women in naming and nursing theyr children pa. the carelesse nature of the people called troglodites & atlantes for their children . pa. manlius remoued from the senate house pa. licurgus appointed schoolemaisters in sparta , called paedonomi pa. ead . the lawe of the brachmaines in india pa. orators and poets contended in greece of lawe-makers and magistrates in diuers countries pa. ead . bloud the first witnesse against murther pa. foure witnesses against murther . pa. the enuie of saul towards dauid pa. ead . punishment of murther by the law of nature , before the lawe written pa. murtherers haue their markes . pa how paracides were punished in rome pa. bocchoris lawe in egipt against murther pa. ead . no lawe against paracides , neither by romulus nor solō . pa. platos lawe against him that kild himselfe pa. the punishment of murther in diuers countries pa. charondas lawe for pulling out ones eyes pa. ead . the law of the . tables imitated moses law pa. the gentiles both allow & confirme their lawes by oracles . pa. pentapolis destroyed for sodomiticall sinne pa. the israelites punished for theyr sinne with the moabite . pa. ead . commendation of godly zeale . pa. adultery punished in diuers countries pa. bocchoris lawe against adulterie . pa. charondas lawe against adultery . pa. ead . zaleucus lawes against adultery . pa. punishment of adulterie by aurelianus & macrinus both emperors of rome pa. ead . the law of solon called paratilmus , against adulterie pa. the opinion of diuers philosophers cōcerning adultery . pa. moses law against bastards . pa. lawes of diuers nations against bastards pa bocchoris lawe in egipt for a woman with childe pa. the lawe of the unshod house . pa. moses lawe against an adulteresse pa. ead . xerxes reward to inuent pleasures pa. commendation of chastitie . pa leges conuiuales pa. platos lawe called bellaris platonis pa. ead . good lawes sent for frō one countrey to an other pa. . & meanes made by the gentiles to become chaste pa. examples of chastitie in good women pa. ead . the harme that hapneth by too much libertie pa. the offence of the eye . pa. the chastitie of the people named animphi and abij pa. the lawe of the twelue tables for chastitie pa. ead . continuance of lawes in all countries pa. the tabernacle hidden by leremie pa. the care and diligence of a●… nations in keeping theyr lawes . pa. iudges appointed in all countreys to execute lawes pa. of counsell and gouernment of women pa. the athenians sent to delphos . pa. achan stoned to death for theft . pa. the punishment of the lorde for breach of his lawes , pa. ead . the lawe of zaleucus for breach of his lawe pa. the seueritie of lu. papirius for breach of the lawe . page . diocles slew himselfe , to satisfie the offenee hee did to his owne lawe pa. licurgus banished himselfe for continuance of his lawes . pa. ead . the credit of aristotle and pythagoras , with their schollers . pa. the israelites sacrificed theyr children to moloch pa. ead . all creatures obey the lorde more then man , the chiefe creature pa. the fraude of giezi plaine theft . pa. ead . the vision of the flying booke . pa. foure great men that robd the temple in ierusalem . pa. ead . the lawe plagium pa. the lawe of the phrigians against theft pa. ead . the lawes of draco in athens against theft pa. ead . bocchoris lawes in egipt against theft pa. charondas lawe in fauour of orphants pa. solons lawe in athens for orphants and infants pa. ead . the daughters of zalphod restorea by moses lawe to their fathers inheritance pa ead . the effect of loue and praiers pa. the effectes of lawes in inward and outward obedience . pa. the lawes of the . tables against theft pa. iulius lawe against theft . pa. ead . bocchoris lawe against theft . pa. theft left vnpunished by licurgus lawe pa. ead . bocchoris lawe against vsurie . pa. ead . solons lawe against vsury , called sysacthia pa. lucullus and cato banished vsurie pa. ead . moses lawe against vsury . pa. solons lawe against slaunderers . pa. ead . description of ill tongues . page . the diuerse punishmēt of tongues . pa. slaunderous tongues practised mischiefe pa. a lawe in athens against vngratefull men pa. diuers false prophets reproued . pa. naboth and stephen stoned to death pa. false witnesse against christ himselfe pa. zaleucus lawe against false witnesse pa. ead . the lawe of bocchoris in egipt against periurers pa. punishment of false witnes among the turkes pa. ead . the lawe of the twelue tables against false witnesse . page . ead . diuers lawes against rebellious and trecherous seruants . pa. . . the law of the . tables against staunderers pa. of the maner of swearing among the hebrewes pa. of diuers ambitious men . pa. . the euill end of ambition . pa. ead . zaleucus lawe against ambitious men pa. cincius lawe in rome against ambition pa. the lawe ostracismus in athens against ambition pa. ambitious kings in egipt might not be buried pa. ead . the image of iustice in eliopolis . pa. of the oaths of the kings of mexico , at their consecratiō . pa. the pride and insolencie of xerxes and antiochus pa , the lawe of thrasibulus in athens called amnestia . pa. ead . the lawe plebiscita pa. the lawe of the indian philosophers pa. of liberties and freedomes in diuers countries pa. ead . the first law of romulus in rome called lex curiata pa. the second lawe in rome called senatus consultus pa. ead . what the senators of rome might do without the consent of the people pa. gracchus law in rome called lex agraria pa. thirtie senators in carthage called conipodes pa. aristocratia chaunged to monarchia among the hebrewes . pa. ead . kings deposed in sparta by the ephori pa. platos lawe against curious men . pa. ead . consuls remoued in rome from their office by soothsayers . pa , the lawe called lex auguralis . pa. finis . notes, typically marginal, from the original text notes for div a -e iob. . iob. . the old patriarkes liued vnder the law of nature . . cor . iere. . the lawe of nature is a short repetition of the lawe written . the lawe written and giuen to moses . cic de leg . lib. . cic. de leg . lib. . cic. de diuini . lib . diod. sic . lib. . cap. . lex curiata . chiefe magistrates & gouernors in diuers countries the lord cōmaunded an aultar to bee made . exod. . diuers aultars be●…ore the law written . septe longaeui tylia otherwise called phyllida . vlpian . f. de leg . . rachel stole her father labans image . gen. . gen. . the image of belus made by his sonne ninus . ieroboam made two golden calues . israel made a god of mettall while moses was with the lord for the lawe . deut. . num. . . reg●… . notes for div a -e socreates poisoned in athens for religion . platoes opinion of poets & painters . ioseph . lib. . contra . apion . 〈◊〉 alcibiades 〈◊〉 ed from athens . clo●…ius slaine in rome . anacharsis slaine . ioseph . lib. . contra apion . paul. 〈◊〉 . ad rom. hermes in poemand . plato in phaed. the romains vowe . grecians . vowes of the gentiles to their gods . pers●… xerxes burnt the temples in greece . cic. de legib . lib. . ●…em ●… . the rechabites lawes . ahiahs speech to ieroboam . deut. : deut. . hose . . zeleueus first lawes to the locreans . diod. sic . li. . cic. de leg . licurgus lawe that no stranger should dwell in sparta . anaxagoras put to death . ioseph . lib. . contra apion . iudic. . protagoras diod. sic . lib. . diagoras . talentū . atticum . cic. de natura deor . lib. . val. max. de peregrin . religione , cap. . cyrus confessed the god which the lewes worshipped . . eldr. 〈◊〉 . artax . nabuchodonozer . darius made a lawe that all dominions should feare the god of daniel . agrippa . ioseph . de antiq . li. . ca. . notes for div a -e egipt the mother of all idolatrie . dio●…ic . lib. . ioseph lib . con●… apion . gode . c. ●…n li. . viget . cap. . the iewes obserued straitly their lawes . alex. neapolit . genial . lib. cap. . diuers tooke vpon thē to be the mesias . ioseph . de antiquit. lib. . cap . torquinius . three hundred aureos . idolatrous sacrifice of the gentiles . no bloud offered in sacrifice by licurgus lawe . cic. de leg . lib . arist lib. . polit . cap. . paul called spermologos in athens . deut. . . reg. . moloches . chambers . hose . . punishment of corrupt iudges in persia. psal. . law turned to wormewood . &c. amos. . arist. rhet. . cap. . the lawe of the lord set down by esay the prophet . esai . 〈◊〉 . deut. . exod. . plato polit . wicked answers of kings●… ashuerus . darius . iezabels lawe for naboths vineyard . lysander and pompeys speech to a lawier . ●…ammius glad●…us . plato in alcibiad . leuit. . alex. neapo . lit . gnial lib. . ●…a . ceremoniall lawes of the gentiles . the gentiles builded diuers temples to their gods . exod. . the maner of the gentiles in dedicating their temples , &c. alex. neapo . lit . li. . cap . alex. neapo . lit . genial . lib. cap. . the consecration of aaron . leuit. . notes for div a -e by what authorities all nations confirmed their lawes . diod. sic . lib . cap. . plut. in sylla . the straight obseruation of the sabboth by the iewes . exod. . luk. . iohn . . the second building of the temple by cyrus . . esdr. . darius & artaxerxes . neomenia . the romains , sabboths . parthians . the diuers kinds of sabboths among the heathens . heredot . lib. phillip . the blasphemy of nicanor . ioseph lib. . cap. . ioseph . lib. . cap . certaine romanes slaine by the iewes . ioseph . lib. . cap. . . machab. . plut. in pomp. the lawe of iud. macha●… . math. . among the heathens the sabboth of the lord was not knowne . liui 〈◊〉 . thueyd . . xenoph. de expedit . cyri. . plut. in alex. licurgus lawe for time of battell . front. lib. . cap. . before y temple was made in ierusalem , the israelites came to siloh . esay . . the continuance of licurgus lawes . charondas lawes against those that disobeyed & contemned lawes . licurgus law . rhe●…ra . plut. in licurgo . the lawe of the . tables . hipocrates in praecep●… . cicero de leg . . cic. de diuin . lib. . cic. de leg . lib. . alex. neapolit . genial . lib. cap. . ioseph . lib. . cap. . the diuers orders of appeales among the heathens . alex. neapolit . genial . lib. cap. . notes for div a -e ioseph . lib. . cap. . the wise and graue iudges in diuers countries . diod. sic . lib. . cap. . exod. . lawes of all natiōs against disobedient children . deut. . esau. gen. . gen . the corruption of iudges . ophnes and phinees . good parents haue ill children . . reg. . . reg. . the care of the hebrues to keepe moses lawe . deut. . godese . lib. . cap. . alex. neapolit . lib. . cap. platoes lawe . markes of monuments and couenants by ioshua , iacob , and samuel . gent. . the care of the kings of persia to bring vp their children . charondas lawe sxr education of children . plato in alcibiad . alex. neapol . lib. . cap. . nehemiae . cap. . & . plato & anacharsis order for the youth in greece . ioseph . lib. . cap. . the romanes care for theyr children . cic. de diuin . . charondas lawe . bocchoris lawes . the care of the hebrew women in naming and in nursing their children . iacob . iob. dauid . phillip . agamemnon . antigonus . troglodites called antinomi . the carelesse nature of the troglodites & atlantes for their children atlantes called anomi . manlius remoued from the senate house . epicarmus punished . eccle. . licurgus appointed schoole maisters in spart●… , called paedonomi . the lawe of the br●…chmanes for their children in india . orators and poets contended in greece notes for div a -e the names of lawe makers & magistrates in diuers coūtries . gene. . blood the first witnesse against murther . c ham was accursed . deut. ●… . the second murtherer in scripture . gene. . ioseph threatned to be killed . foure witnesses against murtherers . iacob fledde from esau. the enuie of saul towards dauid . three kindes of murther . . reg . iob. . psal. . math. . sap. . . reg. . punishment vpon cain and others by the law of nature . esd. li. . ca. . murtherers haue theyr markes . how paracides were punished in rome . alex. neapol . genial . lib. . cap. . bocchoris lawes in egipt for murther . diod. sic . lib. . no law made against paracides , neither by romulus nor solon . platoeslaw for the man that kild himselfe . caligula . oros. li. . ca oros. lib. . cap. . diuers horrible murtherers punished . charondas lawe . exod. . the law of the . tables like moses lawe . andronicus killed . zimri . . reg. . zellum . . reg. . curtis . . vopisc . in aurel . saul . absolon . notes for div a -e plut. in numa the gentiles confirm their lawes by authoritie of oracles from their gods . the fiue cities called pentapolis destroyed . the israelites plagued for their sin with the moabites . nomb. . . reg. . the commendation and reward of godly zeale . ephes. cap. . example of adultery in diuers countries punished . gen. ●… . iudic. . gen. . lawes in diuers countries against adultery . bocchoris lawe against adultery . charondas lawe against adultery . arist. . polit : demosthenes aduersus leptin . plato de leg . zaleucus lawes against adultery . fla. vobise . in aureliano . punishment of adultery by aurelianus and macrinus both emperors of rome . capitolin . in vita macrini . time hath euer bene appointed for godly men to effect theyr purpose . the lawe paratilmus against adultry . the opinion of diuers philosophers concerning adultery . alex. neapol . lib. . cap. . diod. sic . lib. . cap. . moses lawe against bastard●… gen. . gen. . lawe of nature . gen. ●… . leuit. . lawes of nations against bastards . deut. . deut. . bocchoris law for a woman with childe . exod. . the lawe of the vnshod house . deut. . the lawe of moses against an adulteresse cortini . pisidae . casaluion . summaenium . xerxes offred rewards to inuent pleasures laert. in solone . haniball . scypio . commendation of chastitie . alexander . dioclesian . sext. ruffinus . front. lib. . cap. . l. consensu c. de repud . lib. . cap. . leges conuiuales . sapien. . notes for div a -e vertuous and good lawes were so honored that they were sent for frō one countrey to an other . philadelphus . ioseph . lib. , cap. . alex. neapol . genial lib. . cap. . sinister means of the gentiles to become chaste . toby . . examples of chastitie in good women . iedith . . & ●… . neom●…nia . prou . the harme that hapneth by too much libertie . prou. . gene. . the offence of the eye . math. . aqua mercurij . mary magdalene . people called animphi and abij . gymnosophists . the lawe of . tables for chastitie . deut. . val. max. li. . cap. . cic. de leg . . notes for div a -e continuance of lawes in all countries . ioseph . lib. . ca. . de antiq. the tabernacle hidden by ieremy . . macab . . egiptians . lacedemonians . the care and diligence of all nations in keeping their lawes . alex. neapol . genial lib. . cap. . athenians . chron. turcor . arist. rhet. . cap. . iudges appointed in all countries to execute lawes of counsell and gouernment of women . aristot. 〈◊〉 . polit . ●…ap . . plato in alcib . alex. neapol . lib. cap. . cic. de leg . lib. . the athenians sent to delphos . leuit. . achan stoned to death for theft . ioshua . . reg. . num. . the law of the lorde for breach of his lawes . malac. . nadab and abihu . the lawe of zaleucus for breach of the lawe . thueyd . lib. . august . apud . dyon . . the seueritie of l. papirius , for breach of the lawe . front. li. . ca. plato de rep. . diocles lawe . diocles killed himselfe to satisfie his owne lawe . licurgus banished himselfe . the credit of pythagoras and aristotle , with theyr schollers . plato de rep. . the israelites sacrificed their children to moloch . notes for div a -e . reg. ●… . luk. . the disobedience of man against god. psal. . cic. de leg . . liui. lib. . the fraud of giezi plain●… theft . leuit. . the vision of the flying booke . za●…h . . cato censorius de re militari . foure that robd the temple . cic. de natura deor . lib . dyonisius . a lawe called plagium . the seuere lawes of the phrygians against theft . the lawes of draco in athens against theft . the lawe of bocchoris in egipt against theft . diod. sic . lib. . cap. . exod. . bocchoris lawe against theft . deut. . charondas lawe in fauour of orphants . solons law for orphants and infants . alex. neapol . lib. . cap. . the daughters of zalphod restored to their fathers inheritance . nomb , . voconius law . alex. neapol . lib. . cap. . exod. . effect of loue and praiers . gen. . gen. . notes for div a -e gen. . gen. . cic. de finibus . . the effects of lawes in inward and outward obedience . edictum principis . the lawe of the . tables against theft . an other law●… of the twelue tables . exod. . iulius lawe against theft . bocchoris lawes . theft left vnpunished by licurgus lawe bocchoris law against vsurie . illiad . . solons lawe against vsurie called sysacthia . diod. sic . lib. cap. . zeteta . solons lawe . lucullus and caro bannished vsurie . alex. neapol . lib. . cap. . licurgus . moses lawe against vsurie . deut. . math. . solons lawe against nick-names . catapygos . obscessor via●…um . bocchoris law leuit. . psal. . xenoph. . paed. iames cap. . pro. . platoes lawe . suet. in augusto . achisophel . slanderous tongues practised mischief . tacit. . annal . pleto de repub . . cic. pro milone . cic. de leg . lib. . alex. neapolit . . cap. . plato in 〈◊〉 . notes for div a -e deut. . prou. . & . psal. . deut. . diuers false prophets of baal reproued by michaeas and elias . . of baals priests reproued . suzanna . naboth stoned to death by false witnes stephen the first martyr paul. act. . false witnesse against christ our sauiour . mar. cato . aristophantes zaleucus lawe against false witnesse . bocchoris law diod. fic . lib. . cap. . alex neapol . lib. cap. . the turkes punishment of false witnes . the lawe of the . tables . indians . lawes against rebellious seruants . alex neapol . lib. . cap. . paucicapa a kind of punishment . cic. ad attic. epist. . licurgus law●… plut. in alex. alex. neapol . lib. . cap. . hilotae . arist lib. . polit , cap. . 〈◊〉 . deut. . the lawe of the . tables against slaunderers . alex neapolit . . cap. . leuit. . oathes . of oathes . amos. . gen. . of the maner of oathes among the hebrewes . gen. . gen. . . reg. . . reg. . galath . . coloss. . notes for div a -e plato de leg . lib. . the pride of ammon . abimelech . absolon . many great mē ambitious . the nature of ambition . iudic. . the end of ambitious mē . plato de leg . stobaeus sermo . numb . . numb . . zaleucus law against ambitious men . the lawe petalismus against ambitious men . cai. petilius & cincius lawes against ambition in rome . alex. neapol . lib. . cap. . cie . de leg . li. arist lib. . polit . cap. 〈◊〉 . the lawe ostracismus in athens against ambitious arist. poli●… . cap. . amzitious kings of egipt might not be buried . diod. sic . lib. 〈◊〉 cap. . the lawe of the people pedalij to iustice . alex. neapol . lib. . cap. . appollonius and socrates wishes . the image of iustice , &c. the picture of ambition without legs . cic. proplan●… . luk . sebna . achab. nimrod . plato in apol. the pride and ambition of antiochus . ammon . hercules . achilles . the lawe of thrasibulus in athens called amnestia . alex neapol . lib. . cap. . draco strangled in egina . perillus died by those torments which he inuented . arist. polit . lib. . cap. . notes for div a -e tib. caesar. tacit. . annal. lamp. in alex. lamp. in alex . the lawe of the indian philosophers . diod. sic . lib. . alex. neapolit . lib. . ca. . the first lawe of romulus called lex curiata . the second lawe in rome called senatus consultus . plato . plyni . paneg. alex. neapol . lib . cap. . illiad . . alex. neapol . lib. . cap. . what the senators might do without the people . plut. in pomp. gracchus law called lex agraria . platos lawes . . senators in sparta . . senators of carthage called conipodes . aristocratia changed to menarchia . 〈◊〉 . sam. cap. . kings deposed in sparta by the ephori . platos lawe . cic de diuin . lib. . consuls remoued in rome from their office . lex auguralis alex. neapol . lib. . cap. . leuit. . cic. de diuin . lib. . diod. sic . lib. . cap. . cic de diuin . lib. . tacit. annal . the free-born english mans plea for justice: or, a cry against post-fact laws. being a survey of the controversies touching the late purchased titles through the true perspective of justice. by william jackson, one who hath lived to see the famine of justice removed, and hopes to see it continue as plentifully amongst us; as food in samaria; after the flight of these assirians: kings, . jackson, william, or - . this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (wing j ). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing j estc r this keyboarded and encoded edition of 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; :e [ ]) the free-born english mans plea for justice: or, a cry against post-fact laws. being a survey of the controversies touching the late purchased titles through the true perspective of justice. by william jackson, one who hath lived to see the famine of justice removed, and hopes to see it continue as plentifully amongst us; as food in samaria; after the flight of these assirians: kings, . jackson, william, or - . [ ], p. printed by edward cole, printer and book-seller, at the sign of the printing-press in cornhil, neer the royal exchange, london : . annotation on thomason copy: "aug. .". reproduction of the original in the british library. eng justice -- early works to . law -- england -- sources -- early works to . a r (wing j ). civilwar no the free-born english mans plea for justice: or, a cry against post-fact laws. being a survey of the controversies touching the late purchas jackson, william b the rate of defects per , words puts this text in the b category of texts with fewer than defects per , words. - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - tcp staff (michigan) sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion the free-born english mans plea for justice : or , a cry against post-fact laws . being a survey of the controversies touching late purchased titles through the true perspective of justice . by william iackson , one who hath lived to see the famine of justice removed , and hopes to see it continue as plentifully amongst us ; as food in samaria ; after the flight of these assirians : kings , . themistocles postulanti a se simonidi ut sententiā quādam injustam ferret ; neque tu ( inquit ) poeta bonus esses si praeter numerum caneres , neque ego princeps probus si contra leges judicarem : plut. in . vit. themist . leges sapientū causà positae , non ut injurijs abstineam sed ne eis afficiamur : epicur . ex stob. serm. . london : printed by edward cole , printer and book-seller , at the sign of the printing-press in cornhil , neer the royal exchange . . to the right honorable and truly noble henry hastings , lord loughborough commissary general of england under his majesty . may it please your lordship . esteeming it the greatest honor i ever yet had , that i have served under your lord-ship , not only in the general cause that those true english spirits in colchester were embarqued in , but also under your lord-ships particular command in the store , subjected to your lord-ship as commissary general : i have presumed , ( emholdened by that nobleness , wherewith your lord-ship then obliged not only me , but all that knew you ) to present your lord-ship with this smal discourse . being a sum of what , your lord-ship , and those heroick spirits , then ( joyned in command with you ) labor'd for . the observation of laws and iustice is a cause no man need ever be ashamed of ; but what those heroick endeavors then missed of , god hath now given us hopes , may be obtained in a more peaceable manner ; having opened a way to us for reason to be heard ; and reduced us from the use of barbarous violence , to the force of arguments ; fitter weapons for human societies . t is with such my lord , that , i have endeavor'd here to be still an assertor of that general cause of englands liberty , to the utmost of my capacity . and t is my hopes , your lord-ship , that were then a strenuous defender of this cause by your valor in that bellum martiale , wil now grant your protection to him that by this submits himself your servant , whilest your lord-ship in parliament are now managing this bellum mercuriale : bellum i cannot but term it because stil there appears many opposers of iustice it self , which is our cause , having no argument ( but their fucated pretences to saints-ship ) to cover the great injustices they have done ; but my lord when like paint on faces these are melted off by the impartial scrutiny of iustice , there appeares nought but rapines , and meer wolves under the sheeps clothing : which disguise ; since it hath occasioned the devouring of so many lambs , i hope for the future our shephards will so defend us by the pale of iustice that we may hereafter be secure , and every man admitted to that which law calls his own . of the want of which pale your lord-ship hath been as sensible as any by the injuries you have suffered , both in estate and liberty . if the meanness of my performances cause your lord-ship to censure me presumtuous in perfixing your name to so smal a discourse , my petition is , that my zeal both to iustice and your lord-ships service may beg pardon for : my lord your most humble and devoted servant . william iackson . the free-born english mans plea for justice . there have bin of late many papers published under the names of pleas . as the purchasers plea ; the sequesterd clergies plea , and the plea of them that are in the benefices of these , and the plea of them whose lands the others have purchased , these latter written in answer to the former , but in my opinion ( at a time of so general a concernement when all are interressed , and all expecting a general satisfaction to the whole nation ) these pleas are too much restrained to particular interests , to terminate in a general union of all , which were the only blessing to be wished for by all which have the least pretence to christianity , or any spark of the hope of a comfortable satisfactory conscience , which i shall alwaies esteem the greatest temporal blessing men can wish for ; these pleas are likewise a very ill example for every man to seek his own interest , which perhaps may make men draw divers waies and therefore likelier increase divisions ( of which this nation hath had too much ) than compose them . that therefore a more charitable way may be found , it behoves every man to ponder such things in his minde , and ( if he acts at al ) to excite others to endeavour the promoting of such interests wherein al are equally concern'd ; and which have such rootings naturally in every mans conscience , that ( though he should with the bryers and cares of this world intend the stiffing of that good seed ) he can not ( at least wil not ) before men gainsay the motion : for t is seldom seen that a man is totally good , or absolutely wicked . because of some sparklings of that inward self accusing light which ( should he impudently out dare ) would render him odious even to his own accomplices seeing him lay aside all thoughts of shame . first , therefore ( mans life being a race through this world to another , his chief aim is how he may run that race most to his own peculiar benefit ; ( for we are all by nature lovers of our selves ) to which purpose mankind being now grown numerous if we were without order ; as wild beasts , we should be a pray one to another , so as to have many unquiet interruptions in our race and not only so but to be without those mutual conveniences which we might have one of another ; now to rectifie these inconveniences it hath pleased god to send into the world disciplines : to defend men in societies from the aforesaid abuses and direct them in their race with comfort ; these disciplines are two : eclesiastical , to direct them to the end of their race , and civil , or political : to direct them in their race ; and to fit men for these orders in their societies he gave that general tie of justice for a rule , and planted in us a sparkling beam of his truth to witness unto us this justice and be as our magnetick ballance , to fit us to act his will , the more conformably under his ordinances , this is that diamond of conscience that excuses or accuses every man and alwaies tels our souls the truth , if lusts be not the perspective medium through which we see , which often dazels our understanding : by which means we are often led into the more tempting way leaving that which our conscience tels us to be the more just . now for regulating such deviations , and depravations of our apprehensions it was requisite that provision should be made by discipline , leaving therefore the eclesiastical discipline and its unity ( as not any branch of this discourse ) to men whose profession it is ( that being the very top of the building to beautifie and confirme the foundation laid by the civil ) i think it might be much more pertinent to the condition of our nations at present if every man would make it his request that we might enjoy that firm hand of all societies , justice . being the true rule to regulate all actions in any society whatsoever and give up his cause to such a decree ; but in regard we are ( apt looking through the fraudulent medium of lusts before mentioned ) to be too partial in our own causes , t is not fit we be our own judges ; the party perhaps that thinks himself injur'd if he have not his will ; will be apt to say , neither ought our adversaries to be judges in their own cause against us , so say i ; who then ? justice say i : so i beleeve all men will be ready to say too , what ever they think , yet will not they say they desire any thing but justice , but cannot have that ; yes , but any english man may really say we can have justice , our fathers have so labor'd in their daies , that we receive from them both tree and fruit , for in political or civil discipline it is impossible to maintaine any at all , without order , whose business it is to fit every thing to its proper place to appoint some to judg in cases of difference between party and party which judgment though in the infancy of the world it were , wholly left to the discretion of the judg , yet finding men apt to be byassed by alliance , favor , brybery . &c. it was then found a very unsatisfactory way , the suffering party being apt alwaies to think himself wronged whether so or not ; to prevent which it was thought a much more indifferent course to have all cases reduced into judgments , which should be for laws , to decide all controversies , and prescribe all penalties , whatsoever . by which means men had a rule to walk by to direct them what was evil or good , what to persue or avoid , what to be encouraged or punished for : so that it was some satisfaction to them that they were securd from particular spleen or malice of others , and by this means were not damnified for any thing , of which , they were not forewarned by the law : no , nor the judg himself could give any censure that was not prescribed to him in the same law : of this nature were the laws of lycurgus , moses and most of the antients that were law-givers : but in regard , this power of law making in the vicissitude of times is somtimes devolved to men of less qualified parts and integrity , and that such did somtimes make laws , too , too , partial to themselves and too too grating upon the liberties and properties of others , al the laws , which were of equity ( and held proportion with that rule do unto all men as you would they should do unto you ) were by iustinian drawn in canons , and are stil used in a great part of europe , and called by the name of the civil law , but though here were a good provision for laws there was not so good a provision for giving right judgment as could be wished for ; because the interpretation of the law and interpretation of the fact were refer'd to the breast of one man which was thought might be prejudicial to the true distribution of justice ; wherefore our auncesters in this nation i think have taken the most satisfying course , most just , most free , and generous way of all other nations ; for first to preserve true discipline , we have the magistracy and nobility our law-giving power in as great and true a state of honor and justice and far more equitable then any of the former ; for our prince and peers have this priviledg only of constituting laws : and of appointing judges for the distribution of justice to the whole nation . next a far greater liberty and security to the commonalty because though they make not the laws yet they contrive and compose al the laws by which any of them are bound , so that it is as satisfactory a condition as can be contrived for a man to be tied by no laws but such as himself and ancesters have tied and bound themselves by their own consent , and with all these law-makers after sessions in parliament is ended are as subject to be punished by these laws as any other by which means the whol commonalty have as much security as can be devised ; the self preservation of the devisers of the law themselves , being the buckler for every man against partiality : and more than this ; least laws so prudently contrived might be perverted in the dispensation ; the judges are restrained from interpreting the fact of the delinquent who is to be tried by twelve of his peers ; as if it were their own case , so that all the justice imaginable is in the constitution of our government so that for any to complaine and say he can not have justice is a very falsity , if he can have the aforesaid administration of it , if he can not ; he may have his remedies against anywhere he finds the default or obstacle . but now i have run through so great a digression i shall returne to the cause of it from whence i swerved ; these plea's i say coming out on both sides now when the times begin to calme after so terrible a tempest would make a foraigner that should read them , think we had nought but tumultuary proceedings and imagine that they that could make most of their part should get the advantage of their adversaries ; certainly to quiet jealous spirits it is very necessary to tel such if they be lovers of justice ( as i question not but they will say they are ) that its sit every man have justice : for justice is the maine piller of a nations safety ; for as in our bodies the due distribution of all humors to every part its due and the preserving every part in its right temper and composition are the efficient causes of a mans health , unless some part contrary to nature be foul , corrupt or gangrened , then it is most conducing to the health of the whole somtimes to divert the nourishment and humors , somtimes to cauterise , somtimes to cut it off . but mark ! this is when it transgresses the laws of nature ; so likewise these that make pleas for their losses if they have not transgressed any known laws that were in force before their fact ( objected ) were committed : t is fit the due distribution of justice of giving every man his due , procure them a restitution to what they have been by the distempers of the times deprived of ; but if they have transgressed any such known laws , that were in force before their fact , then let them in gods name receive the penalties , allotted by those laws for such trespasses , and none other : this is the true birth right of every free-borne english man and this he ought to have in justice . on the contrary if they that are in possession whether benefices or other purchased lands have such true titles to their possessions as the laws of the land shall justifie , we cannot think such injustice can be permitted by his majesty , as to suffer them to be expelled contrary to laws , of which his royal proclaimation hath given them assurance : but if the laws of the land wil not justifie their possessions , 't is great injustice they should hold them both to the detriment of those in present , that ought to enjoy them , and to be an il example or encouragement to others to enrich themselves out of others ruines for the future ; for without a buyer there can be no seller ; therefore where the law did not justifie that title , at the time of bargain . in the name of god let justice frustrate , and restore to the just owner according to the true title , and let not our age seek to justifie wrong by a post fact law , for which these kingdoms have already felt such sore judgments ; one such law to take the blood of one man in that nature hath been revenged upon the whole three nations with the blood of many ; and should post fact lawes be now created to take the estates of those which were not forfeitable by laws extant at the time of the forfeiture , i pray god do not revenge it after the same manner upon the three nations and lay al of them desolate ; rom. . . what shal we say then is the law sin ? god forbid . nay , i had not known sin but by the law for i had not known sin except the law had said , thou shalt not covet : where there is any forfeiture of an estate there needs no post fact law to confirm it , for that law which makes a man an offender , hath the forfeiture annexed to it ; if post fact laws be allowed , who knows when he does amiss ? therefore both dispossessed and possessors , gainers and loosers , if ye agree in nothing else , agree in this one voyce ; fiat iustitia . you would be loath either of you to be accounted unjust ; ye ought not to be your own judges , the law ought to be our judg : for as justice is , and ought to be the rule to our law-makers in making their laws , to shew them what should be law ; so should the law be both to them and us the rule of what is justice . they that fear the law are partial and of a tyranous spirit seeking a priviledg for themselves above their fellows , whereas justice , and laws are alwaies general , & priviledg or punish every man alike in the same case making no difference to any ; and this is the liberty of the subject to have al in the same capacity with him excepting only such as are impowred with the supream oversight of the whol . to prevent those innumerable inconveniences which such ( should they be in hazard ) might precipitate the nation into . nevertheless by that exception are they subjected as much or more to the bond of love , for their own strength , as they could have been by the penal laws but with far more security to the nation . seeing therefore , that justice is , that general priviledg wherein all just and equal interests are most priviledged : let us with one mind think of no other plea than that , which i hope will be so provided for by his majesty and the parliament now sitting that there will be no need of promoting any pleas for it : for no man petitions at any time for what he hath , but what he wants , so that it is the part of every man to rest satisfied in expectation of what is preparing by them ( whom we should very much injure ) to think would omit , or act any thing that justice should not require ; but when any such thing is , then promote pleas for justice according to the known laws , but in your particular pleas to make such objections as one is out so much monies , and is like to be ruined , if he be deprived of what he holds ; or that such were deboist in their lives . on the other side that we are brought to poverty , those that possest our estates are so , or so , these savor more of passion than reason , for it they that have gamed the sequestred estates have them by law , the others poverty is no reason they should loose their right : but if the others have lost their estates without law , there is no equity but that law should restore them ; 't is not the debauchery laid to their charge ( which besides is to be proved as wel as said ) that excuses any man in anothers right ; for wherof a man is legally possessed ; of that he is to be deem'd true owner in the same capacity he was at first invested with , til the law disposess him again , and whosoever enters without his consent before such declaration be made by law , hath as much title to it , as a thief on the high way to the money in a mans purse ; for such entries are not by the right door . the laws of the land are the right door to all manner of possessions . whoso therefore comes not in by the right door the same is a thief and a robber , saith christ . and though this may have been a judgment on such as did set their minds too to much upon this world to wean them from laying up treasures to themselves upon earth where moth and rust do corrupt and thieves break through and steal they should be so deprived that they might lay up treasures in heaven &c. god send all men to make use of his dispensations to his glory , he can renew his judgments on them when they give him the same provocation . but as the infirmities of men ( if they be true ) ought not to bar them of the priviledge of the law , so ought not the excellency of any man or saint-like godliness ( to cal it by the usual word ) priviledg him to do injustice against law : nay 't is vehemently to be suspected that where a godly man drives on designs of depriving any man of his right ( before the law hath divested him of it ) that his godliness is but seeming not reall , for justice is the fit foundation to build godliness on , justice may be where godliness is not , but godliness cannot be where justice is not : therefore such assertors of their own righteousness may wel be conjectured pharisee like less justifiable than the poor dejected publican , for though they are more circumspect in punctillio's yet they omit the weighty matters , of doing justice , obeying princes , and laws ; and this their desire of holding what they have ( without relation had to the justness of it ) very much discovers ; for we judg by the fruits , not the flowers . and whereas these may superficially for a mask of such intrusion plead orders of parliament to be the law that authorized their possession ; 't is very wel known in england that no order of parlliament was ever pleaded to be in force longer than the session of that parliament which made it , but that such orders as they hold necessary to continue were drawn into acts and confirmed by the approbation of the king : therefore in this respect their plea for such a title is now fully void , that parliament after a double resurrection being quite rooted up by their own act ; if the death of the late king had not nulled it before : next 't is observable that those orders they can plead in that behalf were made by scarce half the parliament ; the other half being removed to oxford by the kings order ( for though he had released the power of dissolving , he had not that of removing it ) where they joyntly with the consent of the king set out proclaimation for the continuance of all ministers in their benefices til duly convicted and ejected by a lawful authority : so that to any unbyassed man such a proclimation had much more reason to be regarded than any they can plead to the contrary : as to other sequestrations , they , and these too , have only one excuse , that there were wars then in the land ( the justness of which ( that things may come to a composure ) is not fit to be examined ) which procured many things as necessary that could not be justified in peace , for inter arma silent leges ) to which nevertheless it may very well be answered that though sequestrations were then necessitated , yet since it hath pleased god that the daies of oppression and violence should be shortened by procuring a right understanding between his majesty and his people : god forbid injustice should stil remain , or that postfact laws should be created at their own unjust desires to confirm injustice because it hath been made good by a strong hand ; for a while , but here may be infer'd the old objection to law and justice that sumum jus is summa injuria ; which i to avoid other objections willingly in general grant : but if these use this as a reasonable objection in this case that exactness in doing right , be great wrong , what is extremity of wrong ; surely an oppression beyond a name ; christ useth this kind of argument ; if the light that is in them be darkness , then how great is that darkness ? so if the very extremity of justice ( pressed against these men ) shal be thought great wrong ? what wrong do they think those suffered , that lost wrongfully all they had , thus long ; certainly they may be somthing sensible when they think , and reflect on these things ; i wish they may and repent for somthing else , than that they are permitted to do injustice no longer , for as hitherto that hath appeared their greatest trouble , not for what ill they have done , but for what they cannot do . but this is no godly sorrow . but having admitted the objection made against the beauty and benefit of true justice , i say england hath made happy provision in that behalf , for in deciding controversies , we have the high court of chancery , to mitigate the rigor of the law of proprieties ; and in matters capital because they are all culpae lesae majestatis , they have their mitigation in the kings breast ; whose perogative is to remit punishments that are against his royalty or person ; as he shall in his clemency see reason for it : not medling usually with any mans propriety . but neither of these can give any relief in this case to them that plead for mitigation ; for these can but moderate the rigor of the law , by extenuating or remitting the penalty that is subject to their prerogatives , but cannot lay it on the shoulders of them that ought not to bear it ; for 't were a miserable doing of equity to the guilty , by obtruding injustice on the guiltless . we have many commands and examples for being mercifull in our justice , but none , that our mercy to offenders should make us unjust , and cruel to the innocent ; 't were a strange sentence if a judg from the bench giving judgment on a criminall guilty of burglary or such like offence should say , by the law thou oughtest to die , nevertheless that mercy may abate this rigor thou shalt but be half hanged , and he whom thou hast robbed shal be half hanged with thee , but far worse if he should hang the innocent and let the offender enjoy his booty , the transferring the sentence , or part on the innocent is of the same nature and holds proportion very wel , if the innocent must lose their whole or part of their estates against law , to save the losses of such as ought to be punished for their unjust intrusion , besides the loss of the estates so gotten . but if these lay a farther stress on the argument of his majesties referring all to the sentence of the parliament . i say god forbid , that there could be such a thing in england as an unjust parliament . unjust factions , and pieces of mock parliaments we have too sensibly felt , but to imagine that a whole parliament free from force , or fear can be so perverted is a kind of blasphemy against the dignity of so eminent an assembly , so fundamental in our constitution of governments as that is ; and although his majesty hath been gratiously pleas'd in his clemency to submit these matters of controversie to their composure ; his yeilding to their arbritration will not by them be deemed a sufficient warrant for them to be unjust in their umpirage . if the matter in controversie belong to one of the parties ; 't is not to be called an equal arbitration if the umpire shal part it between both parties , equity consists in doing justice , but stil upon lawful considerations ; so it suffers not the morgagee to take the forfeiture of the morgager ; but it alwaies provides that the morgagee shal have no loss neither in principal nor interest ; because the law makes the bargain , a just bargain on both parts ; but when the law justifies not the alienation ; why one man should be justified in buying anothers right of them that had nothing to do with it ; not any thing to color such sales or disposures more than a thief that it too strong for a man ; wil never seem reasonable . god be thanked right , and might , were never made termini convertibiles til of late when our nation through the violence of the feaver it labored withal suffered a delirium , hideous fancies crept into the seat of reason , misinforming the whol . solomon hath given us a very imitable example to follow in our arbitrations ; for though like a wise arbitrator he pretended the division of the child between the true mother and the false ; yet having by that found out the truth , he restord the child whol and living to the right mother with the applause of all for his justice and wisdom ; my hopes and prayers shal be : that god wil not suffer either his wisdom or justice to shine less in our senators than in solomon . now if they make that other general plea that their acquiesing to the return of his majesty ought to be considerable in mitigating the rigor of justice , & his return ought to procure such an union as to take away all animosities and distinctions whatsoever , that they together with others might make one harmonious body of people , and not be yeilded up to any severity more than others ; i answer first that not one of a hundred interressed in any such unjust acquests , had the least good liking to this revolution , but as much as in then lay , both with body , & mind endeavor'd all such meant to hinder it , as was possible for them to contrive ; by which the parliament and nation are not so obliged to them in point of gratitude as some of them pretend : and farther though that consideration , were eminent enough to obliterate all past disaffections ( though visibly it be far otherwise ) yet ought not far greater merits than they can plead for , to priviledg them more than the rest of their fellow-subjects ; for if they be continued in such possessions , as the common laws of the land wil not justifie them in ; are not they made above law to their advantage ? and others whose right the law saies it is , oppressed against laws ; so that if it should pass thus ; breach of laws , peace , justice , &c. would be rewarded with privildges above and against laws ; and duty obedience , conformity to laws , honesty , good conscience and loyalty ( which let me tel you is no smal virtue in any member of a body politicko ) ppressed contrary to law and equity : which were a pestilent perverting of the very essential constitution of al governments ; and a poyson beyond al antidotes ; for as justice is the greatest maintainer , & efficient cause of the wel being of a nation , so injustice , the greatest poyson & destroyer that can be permitted ; but that government that shal prescribe so broad a way for the propagation of it , like a dispairing man provides the readiest instrument for its own destruction that may be ; and renders it self highly guilty of self murder . all this pleads still with the most equitable moderation but for equity on all parts , that we may have all the same laws , nor is it my drift to urge rigor at all against the greatest offenders whatsoever : but shal while i breath desire so much justice that laws may be equally general to all ; and that upon so little deserts the worst of subjects might not have their unjust actions countenanced nor the truest subjects for their duty , and love both to king and laws , country , and justice be injur'd by post fact laws , such things as no honest man ! that made conscience of his actions , would ever need ; no modest man ! that did not arrogantly seek to priviledg his unjustifiable actions , could ever have impudence to demand ; so barbarous are they , that there is but one nation , or rather herd of wolvish tartars that even own'd them ; these are those spiders webs , that catch only the laboring bees , but let ravenous waspes , and hornets go free ; and since they have been , and are still endeavored to be made so mischeivous to this nation ; we have as much reason to insert them into our lettany as the plague , pestilence , or famin ; and indeed the judgment that such laws are like to bring upon us , may give all good men just cause to say : from post-fact laws and the contrivers of them good lord deliver us . now for the last asylum . or resuge that those law breakers have for themselves to say that others are wicked , themselves good , others profane themselves holy , others devils , themselves saints ; and many expressions of like nature ; first let me tell them t is an ill signe for people to speak well of themselves ; and no law either of god or man in any nation ever accepted of a mans testimony in his own cause ; and christ himself denies it of himself : though the transcendency of his person might have priviledged him without being an example of the like to us , but belike he foresaw of how il consequence it might be , to leave such an example : therefore saith . if i bear witness of my self my witness is not true . mens own words are no testimony in their own cause ; next let me tel them , t is so pharisaical a trick , that though perchance it should proove true , it wil make others judg of them as the gospel censures the pharises , alwaies joyning the name of hypocrites ; wo to you scribes and pharisees hypocrites , for self justification when not necessary , to vindicate a man from some imputation laid to his charge is a common badg of hypocrisie ; and next , this ( as is before mentioned ) is no justification of a wrong . nay 't is a notable return that those that intrude upon such specious holiness , unjustly , are more wicked in such an extortion than all they can object to the wronged party , wil render him guilty of : and are so , very justly disrobed of their own holy cloak that cover'd their covetousness . such boasters are very wel resembled by the peacock which gives a glorious shew with his spread traine forwards , sees it himself and walks stately with the conceit of his glorious appearance . but to them that veiw him round ; behind his feathers are dark colord and unseemly and his feet black and uncomly ; which is not so easily discover'd when he gives not standers by , occasion to observe him by his pride . if therfore these men did not so much cry up their own holiness and others prophaneness : their imperfections might pass less noted , but to cure such arrogancy there is no way but to let them see the blackness of the feet they stand on , that peacock like they may let fal their boasting with shame ; i mean to give them a remembrance of the unjust extortion , which they conceald under the specious covering of reformation and zeal ; for whilest they make these gay pretences ; they rob others contrary to the laws , foment the divisions of the nation to the procuring of much effusion of blood ; and much more mischeif that might be reckoned ; now if they would look upon these deformities sure they would never boast of their saint like appearance ; t is not for a man to boast of godliness and urge breach of laws ; or to say they feed the flocks , that rob the true shep-heards put in by the laws of the land ; st. peter and paul both give other ruls ; submit your selves to every ordinance of man , for the lords sake ; whether it be to the king as supream , or unto governors as unto them that are sent by him , for the punishment of evil doers , &c. so that t is not mens guilded behavior , but their obedience to the laws of the land is to give us direction to judg of their goodness ; this makes a man a good subject , without which ( what ever he pretend to ) he can never be a saint indeed . obedience ( saith samuel ) is better than sacrifice ; ( and st. iames ) shew me thy faith by thy works . appearances are good , if they be joyned with inward righteousness : for christ commands it : let your light so shine before men ; but he adds , that they may see your , good works . now the work of obedience to the laws of the land is the great and weighty work , as is shewed before out of peter : t is not the tithing of mint , annise , &c. justifies a man , but the weighty matters of the law , iudgment , mercy , faith ; these ought ye to have done but not to leave the other undone ye blind guides which strain at a guat and smallow a camel . t is not a pretence of scruple against ceremonies , can justifie the disobedience to the higher powers , and the violent and illegal seizing of others mens estates , in which the law justifies them ; and let me tel them it makes not much for their justification or saintedness , that they were put into possession by the arbitrary violence of such a power , that terminated in the murder of the king ; which without doubt bolstred themselves with such appendixes as should be necessary to support them to their intended mischeif : t is a wonder to me with what impudence men can plead a possession from so villanous a force , no more justifiable , by law or reason than any common robbery ; not see i how any one that holds any benevolence of theirs , dffers any more from their crime , than the receiver from the theif ; ( that is if they shal stand upon maintaining the possession they had of them ; possibly some may have been abused by their false glosses , but if they persevere ; their fault appears not through ignorance , but willfulness ; for the ringleaders of that treasonable practice could give no better title than they had , which was only violence , and rapine ; do not then they partake with them that shal justifie any possession from their title ? nay can they hope that so free a parliament as this is , can make good the receipt of their roberies ? no , i perswade my selfe too many of them have felt their malice too much , and have known their cruelty and injustice too well , to be brought to consent to their villanies : for they know very well that qui non probibet cum licet , iubet . and i am confident these men will have a greater task than hercules's labour , to prevaile with so eminent an assembly , ever to justifie such villanies ; the injustice they have seen , will make them too fearful of the like againe , to give any incouragement to what is past : t is time at length to lay aside private interest , and advance the publique ; which can be no way provided for but by justice , losses will be great enough to the loosers , do what can be done ; so long profits can never be restor'd them they belonged to ; and on the otherside , the gains will be too great to them that have deserved far otherwise ; how strictly soever they be call'd to account ; and we may be certain of this that very few of them can be brought to a more desperate fortune that they began withall ; so that none need fear overdoing on this hand , so long ryot upon other mens purses and labors , together with corporal impunity is advantage enough , nay too great for such unacceptable service as they have done the nation ; therefore i think it will be the most reasonable ples , that all sufferers can make , that they may have justice : and in that , their oppressors wil not know how to oppose their desires ; for to say they desire no justice ( though it be like all former impudence of theirs ) they perhaps are yet ashamed to profess themselves enemies to it ; but if they say they desire justice according to the laws , then all english men have their priviledge ; and one plea will serve us all ; but by their fruits already brought forth we may partly know what to expect for the future ; and assure our selves they will pervert the sense of the thing or slink into obscurity least now the light of truth shines freely every where ; their deformities he made more apparent , for justice is the light and life of the body politick , and the law the window to let that light into all parts of that body to discover , the actions of every man , so that they that hate the law hate the light , that makes their actions appear , and it is a shrowed sign of their own conscience accusing them if they refuse to be tryed by the laws . for every one that doth evil , hateth the light neither cometh to the light , lest his deeds should be reprooved , but he that doth truth cometh to the light , that his deeds be made manifest that they are wrought in god ? let us therefore with alacrity think on no other plea than that justice may be afforded to all alike ; we desire no more priviledg than other men have , and we desire on the contrary they may have no more than we ; and that no post-fact laws may be made to the advantage of any perticular mans interest ; but that as god hath ordained from the beginning one only truth and one catholick church universally dispensable to all ; so that our nation in imitation to his ordering of the oeconomy of the universe ; may have one general maintainance of his truth , by an equal and general dispensation fo the laws , our property rectified and secured , that once again justice may flourish , that so we may receive his best of temperal blessings peace and truth within our walls and plenteousness in our pallaces : so let every true english man and loyal subject pray . these queries i thought fit to add for a pallisad , about what hath been written , that if any snarle at what hath been said , he may happily first break his teeth against these following . . whether might ; without right be not absolute tyranny and usurpation ? . whether to argue from the orders and injunctions of violent assemblies , be not to set up the power of the sword , above the civil power , and consequently a changing of goverment , from the rule of reason to be ruled by wil ? . whether they can be freinds to a nation that indeavour alteration of goverment by force . contrary to the will of all parties related to such a goverment ? . whether laws are not to be the rule of our actions in this kingdom ? . whether it be justice to dispossess any man of his possession , by force , who is not first dispossessed by the judgment of the law ? . whether right be any thing else in civil societies , than a legal warranting of our actions or claims by the law of the land ? . whether a violent possession against the laws of the land , be justifiable by any honest man , good christian , or any other than a new fashion'd saint ? . whether : vir bonus est quis ? qui consulta patrum qui leges iuraque , servat . be not a sufficient character to know an honest man by ? . and lastly , whether post-fact laws , be not the most arbitrary imposition that can be contrived , and whether it be possible to avoid such snares if they should be allowed . finis . notes, typically marginal, from the original text notes for div a e- nich. machiav . disput. de rep. cap. . tullij . offic. lib. . iohn , . . math. . , . luke , . . math. . . mark , . math. . . kings . , . iohn , . . . math. ● . v. . , . peter , . . rom. . . &c. math. . . math. . , . iohn , . . the institutions of the law of scotland deduced from its originals, and collated vvith the civil, canon, and feudal- lavvs, and vvith the customs of neighbouring nations ... / by sir james dalrymple of stair ... stair, james dalrymple, viscount of, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the institutions of the law of scotland deduced from its originals, and collated vvith the civil, canon, and feudal- lavvs, and vvith the customs of neighbouring nations ... / by sir james dalrymple of stair ... stair, james dalrymple, viscount of, - . v. in . printed by the heir of andrew anderson ..., edinburgh : . each part has special t.p. reproduction of original in the harvard university law library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest 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guidelines are available at the text creation partnership web site . eng law -- scotland. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - tcp staff (michigan) sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion the institutions of the law of scotland , deduced from its originals , and collated vvith the civil , canon , and feudal-lavvs ; and vvith the customs of neighbouring nations . the first part . by sir james dalrymple of stair , president of the session . edinburgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . to the king . may it please your majesty . i do humbly present to your majesty a summary of the laws and customes of your ancient kingdom of scotland , which can be no where so fitly placed , as under the rayes of your royal protection : i am confident it will tend to the honour and renoun of your majesty , and your princely progenitors , that you have governed this nation so long and so happily , by such just and convenient laws , which are here offered to the view of the world , in a plain , rational , and natural method ; in which , material justice ( the common law of the world ) is in the first place orderly deduced from self evident principles , thorow all the several private rights thence arising : and in the next place , the expedients of the most polite nation , for ascertaining and expeding the rights and interests of mankind , are applyed in their proper places ; especially these which have been invented , or followed by this nation ; so that a great part of what is here offered , is common to most civil nations , and is not like to be displeasing to the judicious and sober any where , who dote not so much upon their own customes , as to think that none else are worthy of their notice . there is not much here asserted upon meer authority , or imposed for no other reason , but quia majoribus placuerunt , but the rational motives inductive of the several laws and customes , are therewith held forth : and though the application of those common rules , to the varietie of cases determined by our statutes , our ancient customes , and the more recent decisions of our supream courts , be peculiar to us ; yet even the quadrancy of these to the common dictates of reason and justice , may make them the less displeasing ; and that no nation hath so few words of art , but that almost all our terms are near the common and vulgar acceptation ; yea , the historical part relating the helps and expedients for clearing and securing the rights of men out of the word of god ; the moral and judicial law contained therein ; the civil , canon and feudal laws , and many customes of the neighbouring nations digested , as they fall in with the common rules of justice , may probably be acceptable to these who may , and will allow time for their perusal , a quaint and gliding stile , much less the flourishes of eloquence , the ordinary condiment and vernish , which qualifie the pains of reading , could not justly be expected in a treatise of law , which of all subjects doth require the most plain and accurate expressions ; to ballance which , the nausiating burden of citations , are as much as can be left out . we do not pretend to be amongst the great and rich kingdoms of the earth , yet we know not who can claim preference in antiquity and integrity , being of one blood and lineage , without mixture of any other people , and have so continued above two thousand years ; during all which , no forreign power was ever able to setle the dominion of a strange lord over us , or to make us forsake our allegeance to your majesties royal ancestors , our native and kindlie kings ; whereas , most of the other kingdoms are componds of diverse nations , and have been subjugated to princes of different and opposite families ; and oftimes forreigners . the great monarchies which did design universalitie , are all broken in pieces ; and there is no familie that can claim a just title to redintegrat any of them . there is no emperor nor king , except your self , but knows to what other families their predecessors did succeed , and when , and by what means it is evident what a mixture hath been in greece and italy , in france and spain , in england , and elsewhere . this nation hath not been obscure and unknown to the world ; but the most famous nations have made use of our arms , and have still in grateful remembrance , retained trophies and monuments of our courage and constancy . there be few wars in christendome , wherein we have not had considerable bodies of souldiers , regimented and commanded by themselves , and oftimes general officers commanding them ; and whole armies of strangers , with great reputation and gallantry , which did advance them above the natives of these countreys where they served . neither have we wanted the fame of learning at home and abroad , in the most eminent professions , divine or humane . and as every where the most pregnant and active spirits , applie themselves to the study and practice of law ; so these that applyed themselves to that profession amongst us , have given great evidence of sharp and piercing spirits , with much readiness of conception , and dexterity of expression ; which are necessary qualifications both of the bench and bar , whereby the law of this kingdom hath attained to so great perfection , that it may without arrogance be compared with the laws of any of our neighbouring nations , for we are happy in having so few and so clear statutes . our law is most part consuetudinary , whereby , what is found inconvenient is obliterat and forgot : our forms are plain and prompt , whereby the generality of the judicious , have with little pains much insight in our law , and do with the more security enjoy their rights and possessions , which by our publick records are better known then any where , by which , we may with the greatest assurance trust our purchase , seing no land-right is effectual against purchasers by consent or by law , but where the ultimate perfection thereof , by seasing or other evident , is upon record in registers , set apart for the several rights , without mixture of any other , whereof there are authentick minute-books keeped , with the records in each shire and jurisdiction , whereby with the least pains or expence , all the rights affecting any land within the course of prescription , can easily be found . we are not involved in the labyrinth of many and large statutes , whereof the posterior do ordinarly abrogate , or derogate from the prior , that it requires a great part of a life to be prompt in all these windings , without which , no man with sincerity and confidence , can consult or plead ; much less can the subjects by their own industrie , know where to rest , but must give more implicite faith to their judges and lawers , then they need or ought to give to their divines ; and we do always prefer the sense to the subtility of law , and do seldom trip by niecities or formalities . the greatest fixation and improvement of our law hath been by the establishment of the supream civil judicature of the kingdom , by king james the fifth , in the institution of the colledge of justice , consisting of fifteen ordinarie senators , in place of the kings daily council , which followed his residence and court , and of the lords of session , who came in their place , and were nominated of the estates of parliament ambulatory ; and the senators of the colledge of justice were invested with the powers of both , and their persons and the place of judicature became fixed , and hath so continued near the space of an hundred and fifty years . this court was much improven by your majesties royal grand-father , who delighted exceedingly in it , and honouredit frequently with his presence while he was in scotland : so did your royal father when he came to scotland to be crowned : and your majesty hath owned and encouraged it more then any . your majesty doth not demand or expect great revenues from this kingdom ; that which we can be useful in to your majesty , is our personal service , and our firm adherence to your crown and monarchy , and to your royal family , in which we have a peculiar interest ; and which no time can communicate to any of your other dominions , which they neither can claim , nor should invy that you are of our nation , and hath governed us during twenty centuries and more , and by us you are the most ancient king in the world , which is the most noble and resplendent jewel in your crown ; what family on earth can parallel that motto , which an hundred years ago , was written about your royal ensignes , upon your palace , — nobis haec invicta miserunt centum sex proavi . therefore your royal family hath been betroathed to a virgin crown , which never knew another husband ; and though it hath been darkened with clouds and recesses , yet never was , and i hope never shall be in widuity . the mutual affection betwixt your majesties royal family and this nation , is a prime interest to both , which should be much incouraged and improven : your majesty without just ground of jealousie to your other kingdoms , may own a peculiar care of us ; and weought to 〈◊〉 a singular kindness to , and confidence in your majesty , and your royal successors ; this might he so promoved , that your majesty might by treaties , have armies of this nation abroad , intertained without your charge , and ready at your call , as you had dowglas regiment in france , which might secure your peace at home , and make you stand in need of less aids from your people . you might also have thriving plantations abroad , if these who every year go from this nation , to seek their fortunes abroad , were directed and encouraged ; and it is certainly a great interest to keep the nation at home , in constant affection index of the titles of the whole book , with the summaries subjoyned . part i. title i. common principles of law. description of law. description and division of justice . divine law. reason , conscience , equity . moral law. positive laws of god. judicial law. law of nations . civil law. feudal law. canon law. the reasons of humane laws . the law of scotland . whether law may be handled as a rational discipline ? three common principles of equity , and three of positive law. obedience , freedom , ingagement . description and division of rights . method of the civil law , and the method here proposed . title ii. of liberty . liberty described . liberty 〈◊〉 from dominion and obligations . the principle whence liberty ariseth . restraint and constraint . liberty is bounded by obedience . it is diminished by delinquence . by ingagements . by subjection . liberty is lost by bondage . bondage introduced by the law of nations . bondage lawful . manrent . manumission . patronage . the condition of our servants . injuries agaiost liberty , how obviat . title iii. of obligations . personal rights and obligations described . kinds of obligations . obediential obligations described . divided . enumerat . obligations natural and civil . obligations principal and accessory . obligations pure , conditional , and to a day . title iv. conjugal obligations . marriage a divine contract . whereby marriage is formally constitute . dissolution of marriage by death . desertion and adherence . jus mariti . the husbands obligations . the power of the husband by the civil law. by the custom of neigbour nations . by the custom of scotland . the wife's escheat . the husband 's concourse . a wife's obligation null . a communion of goods and debts . donations betwixt man and wife revocable . dissolution of marriage within the year . divorce . rights arising from the dissolution of marriage . priviledges of wives . title v. obligations between parents and children . obligations betwixt parents and children , are divine by the law of nature . the power of parents over their children , in infancy ; in minority ; in majority . oeconomical government . provision of children . obligations of children to their parents . aliment due to parents . obligations mutual of children . patria potestas amongst the romans . amongst other nations , especially as lawful administrations . forissawiliation and emancipation . title vi. obligations of tutors and curators , pupils , minors , and persons interdicted . the rise of tutory in the law of nature . order of tutory by the law of nature . the natural obligation of tutors : pupils obligations to their tutors . kinds of tutors by the common law. tutors testamentar . tutors testamentar exclude all others . tutors of law , who ? how tutors of law are entered ? the time within which they must enter . tutors dative . pre-tutors . factors for tutors . con-tutors . tutors custody of the pupil's person . tutors authorizing their pupils . tutors or their factors rightsrelating to the pupils , accresce to them . tutors can only do necessary , not free arbitrary deeds , but may not sell lands . sine authoritate judicis . tutors are lyable for annualrent for their pupils means . tutors are conveenable with their pupils , and lyable in quantum intus babent . tutors accompts . tutors are lyable for exact diligence , both for intromission and omission . tutors are lyable in solidum . tutory how finished . tutors of idiots & furious persons : gesta tutarum accrescunt pupillis . removing or suspect tutors . duty of pupils to their tutors . rise of curators . curators ad lites & negotia . minors may at their option , choose or not choose their curators . minors deeds having curators without their consent are ipso jure null , nisi in quantum 〈◊〉 . curators consent not requisit to later-wills . restitution of minors upon enorme lesion . minor non tenetur placuare super 〈◊〉 paternam . differences betwixt tutors and curators . duty of curators . curators , or interdictors for prodigals , or lavish persons . interdictors constitute causâ cognitâ . interdiction by parents consent : publication and registration of interdictions . interdictions extend only to heritable rights , not moveables , nor to personal executions . interdictions are only competent by way of reduction . interdictions cannot be taken off , but by authority of a judge . title vii . restitution . restitution of other mens goods a natural obligation . restitution is not solely an effect of property . restitution of things straying , or waith and lost . restitution of things bonafide acquired , not from the right owner : restitution of things recovered from theeves , pirats , and robbers . restitution not competent of things recovered from publick enemies . restitution of things quae cadunt in non causam , causâ datâ & non secutâ . no restitution of things given ob turpem causam . restitution of indebite soluta . restitution reacheth also the fruits not consumed . restitution is grounded on having , and that ceassing without fault , the obligation of restitution ceasseth . bonae fidei possessor facit fructus consumptos saos . restitution by heirs . from restitution arises the action of exhibition and delivery . thence arises division of things common without society . title viii . recompense . recompense or remuneration , a natural obligation . obligation negotiorum gestoram . actio directa & contraria de negotiis gestis . the diligence of negotiators . the natural obligement to recompense , in quantum locupletiores facti sumus . actio de in rem verso . relief due to those who satisfie obligations , whereby more persons are lyable , in cosdem . title ix . reparation : where of delinquences , and damage thence arising . the obligation of reparation of damages by delinquence , ana ural obligation . delinquence inters the obligation of punishment , and reparation of the injured . damage described . kinds of delinquence . concurrers in delinquence , how lyable . special kinds of delinquence by our customes . 〈◊〉 . extortion , vi majori & metus causâ . circumvention by fraud , dolo malo . the edict de dolo malo : circumvention rarely inferred by witnesses . simulation . collusion . . the effect of fraud , as to the party contracting . deeds done in fraudem creditorum , contrair the act of parliament , . anent bankrupts . the nature of spuilzie . the title of possession . oath in litem , in spuilzies . spullzies elided by any colourable title , warrand , or bona fides . spuilzie elided by voluntar delivery . by lawful poinding . replyes against poinding . spuilzie elided by restitution within twenty four houres . prescription of spuilzies . intrusion and ejection described and distinguished . ejection proper to the natural possessor : exceptions against ejections . molettation . breach of arrestment and deforcement : contravention . title x. obligations conventional , by promise , paction , and contract . the original of conventional obligatious . the acts of the will , desire resolution and ingagement , and their effects . pollicitation , or offer , and its effects . promise . contracts in favours of third parties valid . pactions : and how words are obligatory . naked pactions . pactum corvinum . locus penitentiae . promises and pactions are morally obligatory by canon law , and our customes . kinds of contracts amongst the romans , with the exception de non numerata pecunia , and homologation . distinction of contracts according to the matter . common requisits to contracts permutative contracts , and the equality to be keeped in them . latent insufficiency altereth contracts . how far mutual contracts are effectual to assignys , without performing the cedents part . loan comprehendeth mutuum and commodatum . in mutuo transfertur dominium . senatus consultum macedonianum & velleianum . mutuum can only be in fungibles and quantities . specialities in mutuo , and bills of exchange . mutuum stricti juris . commodatum described . borrowers diligence . precarium . commodatum how ended . actions arising from commodatum . mandatum , or commission . the terms of mandats . acceptance of the mandatar . mandats in things lawful . acceptance must be freely . mandats are personal . how far mandatars may intrust others . mandats are ambulatory , and revocable by the mandant . mandatars must perform , in forma specifica . mandatars diligence . the ohligations of maudatars . kinds of mandats . tacit mandats . more mandatars , how far they may act severally . whether joynt mandatars are lyable in solidum . the effect of general mandats . what is special in offices amongst mandats . specialities of trust amongst mandats . obligations of exercitors . obligations of institors . the nature of custody , or depositum : diligence of depositars . nautae caupones stabularij . depositation of writs . sequestration . consignation and trust depositation admits uo compensation . but admits retention . joynt depositars , how far lyable . the nature of pledge , or pignus . specialities in pledges . how pledges may become irredeemable . clauses irritant in pledges . hypothecation of the crop or goods for the rent . hypothecation of the teinds for the teind-duty or stipend . exchange and sale , wherein they agree and differ . what things are lyable to sale , and of buying of pleas by the members of the colleege of justice . effect of earnest . reversion of things sold. clauses irritant , or resolutive in sale. knowledge of acquirers of an anterior incompleat right , how effectual . after sale , before delivery , to whom the thing perisheth . location described , and compared with sale. whether sterility frees from the pension . the effect of vastation . location is personal , and ceaseth with the constituent's right . usury , or annualrent of mony. annualrent due by law , without paction . the conductor's obligation . the locator's obligation . the effect of society . the matter of society . the nature of society and equality therein . the power of the partners in society . how society ceasseth . partners acting severally , how these things accresce to the society . diligence of partners . contracts mediat and immediat . kinds of cautioners . cautioners how far lyable . cautioners for executors . cautioners for tutors and curators . cautioners for the factors in camphire . cautioners for loosing arrestments . cautioners are lyable according , by the oath of the principals . cautioners as law will. when the cautioners are lyable , and the principal not . cautioners when lyable in solidum . relief of cautioners . effects of promissary oaths . 〈◊〉 . interest . profit of performance . time of performance . place of performance . manner of performance . title xi . liberation from obligations . obligations ceass by contrary consent , by discharge , declaration , renunciation , or per pactum de non pentendo . three subsequent discharges liberat from preceedings . payment made bona fide . confignations ; acceptilation ; compensation ; retention ; innovation ; confusion ; title xii . rights real : where of community , possession , property , servitudes , and pledges . the original dominion of man over the creatures . what rights are heritable , and what moveable . moveable and heritable bonds . how heritable obligations become moveable and return to be heritable . the original community of mankind over this inferiour world , and all therein . what remains yet common to mankind . grass and fruits on high-wayes are publick , not common in possession what is facti , what is juris . possession described . possession natural and civil . possession of moveables . possession of the ground . possession by limits and bounds . possession by occupation , and by lifting the profits . symbolical possession . possession by reservation . definition of possession . requisits to begin possession . requisits to retain possession . how possession is troubled , interrupted , or lost . kinds of possession . lawful possession gives right to continue it against all illegal and 〈◊〉 acts contrary thereto . bonae fidei possessor facit fructus consumptos suos . this not extended to unlawful possessors . possessor decennalis & triennalis non tenetur docere de titulo . quinqutnnial possession of forefaulted persons . possession , to what right ascriveable . the nature of property . property by possession of things common . appropriation by industry . first property of the ground was of houses and wails . next of fields and countreys . quae nullius sunt . appropriation by accession of birth and fruits . appropriation by 〈◊〉 . appropriation by specification . appropriation by necessary conjunction . de tiguo injuncto . inaedificata solo cedunt . things sown and planted , haw far-they follow the ground . posseision of moveables presumes property . reprisals . enemies goods taken in war. goods of neuters assisting enemies become prise . title xiii . infeftments of property . the original of fees. feudal jurisdiction , especially of the king in parliament . feudal jurisdiction of superiours . 〈◊〉 . requisits of proper fees. kinds of improper fees. dominium directum essential to all fees. dominium 〈◊〉 . fidelity 〈◊〉 necessary . feudal contracts . udal rights . infeftment what it signifies . how writ is necesiary for infeftments . what kinds of writs are necessary for infeftments . the 〈◊〉 of formal charters . when instruments of sealin became necessary . the tenor of formal seasins . the essentials necessary in seasins . seasins must have warrands and adminicles , and what these are . registration of seasins . registration of ressignations ad remanentiam . registration of the allowance of apprisings and adjudications , inhibitions , and hornings . the attest of the nottar and two witnesses , necessary in seasins . extracts of seasins not probative . transumpts of seasins . bounding infeftments . base infeftments , how far effectual without possession . infeftments by confirmation . infeftments upon apprising or adjudication . the effect of apprisings or adjudications with a charge . infeftments ward . feus of ward-lands , how far valid . infeftments blench . infeftments feu . the annexed property of the crown can only be set feu after dissolution in parliament . feus of the annexed property set with diminution of the retour'd duty , are null . feus of kirk-lands . infeftment in burgage . infeftment in mortification . manses and gleebs . conjunct infeftments . infeftments to heirs substitute . infeftments simple and tailzied . union . erection . warrandice . tacit conditions implyed in ward-lands . tacit conditions in warrandice and relief . tacit conditions in infeftments of offices . tacit conditions in excambion . tacit conditions in feus . liferents reserved in infeftments of property . exceptions in infeftments , how far effectual . faculties reserved in infeftments . burthens of sums in infeftments , how far effectual . the effect of impossible or unlawful conditions in infeftments . conditions inconsistent are null . clause de non alienando in tailzies . clauses restrictive and irritant in tailzies . regalia not exprest , are not carried by infeftment . regalia are carried in barony , though not exprest . jurisdiction and courts . juriidiction of baron courts , how far restricted . issues of baron courts belong to themselves . infeftments of constabulary . fortalices , how far extended . forrestries . hunting of deer , inter regalia . salmon-fishing . cruves . milns . priviledge of brewing . part and pertinent . wood and coal . houses and biggings , and park dykes . fowling , hunting , and fishing . cunningars . dovecotes . free ish and entry . herezelds . steel-bow goods . the effect of infeftments , in possessorio . the effect of infeftments , in petitorio . inhibitions and their effects against infeftments . title xiv . superiority : where of its casualities , non-entry , relief , compositions for entries , ward , marriage , and liferent-escheat . the superior's dominium directum . how property is established in the king. superiors may exerce all acts of property , except against their vassals . how the property coming in the person of the superior , is established . superiors cannot interpose betwixt them and their vassals . how far superiors need to instruct their title . superiors have personal action against intrometters with the rent of the land for their reddendo . they have also real action for the same , by poynding of the ground . jurisdiction of superiors . superiority carrieth to heirs and singular successors , all bygone casualities not separat by gifts or decreets . superiors of kirk-lands need not instruct a consent to the surrender . superiors must receive apprisers or adjudgers , or pay the debt , salvo jure suo . he must receive the king's donatar upon presentation gratis . he must receive his subvassal , whom his immediat vassal resuseth to enter . how far superiors may extend gifts of their own ward against their vassals . superiors need not accept resignation or confirmation , and if they do , it is salvo jure suo . superiority falling to more persons , the eldest heir or greatest interest only receives the vassals . non entry falls , when infeftment is not renewed by every vassals heir , or singular successor , or upon resignation . non-entry falls by reduction or nullity of infeftments , or retours . burgage falls not in non-entry , as to the burgh or particular persons . the effect of the general declarator of non-entry . the effect of non-entry , after citation in the general declarator . exceptions against non-entry , as to the feu-duty or retoured maill. exceptions against non-entry , as to the full rent . whether non-entry after ward requires declarator . the original of relief . the custom of england and france , as to relief . the quantity of relief with us . whether relief be due during non-entry . whether relief is due when the heir is entered , whether the fee be burdened with conjunct-fee or liferent . relief stops not the heir's seasin . compositions for the entry of apprisers of adjudgers the original of ward . the effect of ward as to the heir's person . the effect of ward as to the fee. the restrictions of ward . the value of the marriage of heirs of ward-vassals . the true interest of superiors in the marriage of their vassals . the single value of marriage , not penal but favourable . double value penal and unfavourable , with the exceptions against it . single value found due where the heir was married before his predecessor died , by precipitation . the quantity of the single value in heirs male or female . marriage is debitum fundi . it belongs to the eldest superior . the royal prerogative prefers the king to all others , as to the marriage of the vassal . marriage is due by the heirs of apprisers . exceptions against the value of marriage . the rise of liferent escheat . it extends to all kinds of liferents . liferents of fees not having infeftment , or not owing fidelity to a subject , belong to the king. liferent escheat of sub vassals , to whom they belong . liferent-escheat is not excluded by voluntary infeftment after denounciation , not being for im plement of a special obligement to infeft before denounciation . liferent-escheat is excluded by apprifing for debts anterior to the rebellion , there being infeftments or charge in cursu rebellionis . liferent-escheat extends not to burgage or mortification . but extends to ministers stipends . liferent-escheat is made effectual by declarator . title xv. annualrent : where , of pensions , and poinding of the ground . description of annualrent . the rise of annualrent . the manner of constituting annualrents . the kinds of holding of annualrents . liferent-escheat of annualrenters . kinds of annualrents amongst the english. the difference of feu-annuals , ground-annuals , and top-annuals . poinding of the ground . the extent thereof . who must be cited in poynding of the ground . the effect of poynding the ground as to ground rights . the order of poynding moveables , by several annualrenters . annualrents are effectual , personally against intrometters . annualrents are moveable as to bygones . extinction of annualrents . ecclesiastick pensions affect the benefice . pensions by secular persons , how far effectual . the kings pensions are not arrestable . title xvi . liferents : where of conjunctfees , terces , and liferents by the courtesie of scotland . servitudes personal by the roman law. servitudes personal by our custom . clauses of conquest , of liferent , or fee of lands acquired during marriages , how far extended . all liferents must be salva rei substantia . liferenters are burthened with aliment of heirs . liferents without infeftment are not effectual against singular successors . the effect of assignations to liferents . liferents are not prejudged by tacks or other deeds of the feer , being posterior . what terms do belong to liferenters . conjunctfees . liferenters by conjunctfees have all the casualities of superiority . terce . services of terces . kenning to terces . the effect of terces . the extent of terces . exceptions against terces . burthens of terces . liferents by the courtesie of scotland . publick burthens . title xvii . servitudes real . requisits to constitute real servitudes by consent . how prescription constituteth servitude . how far servitudes ate effectual against the superior . extinction of servitudes . kinds of servitudes . servitudes of support . stillicides . sinks . servitudes of prospect or light. wayes . watering . watergang . feuelling . pasturage . thirlage . several wayes of constituting thirlage . several cases in which thirlage is not constitute . the effect and extent of thirlage . the import of several clauses of thirlage . invecta & illata , or tholling fire and water . sequels . miln-service . priviledge of milns . how thirlage becomes extinct . in multure , seed and horse corn , are to be deduced , but no other expense of labouring . thirlage constitute by a vassal , not effectual against the superior . deductions for insufficiency of the miln , breaking down of the damm , or frost . title xviii . teinds : where of benefices , stipends , presentation , collation , institution , tacks , annats , and patronage . teinds affect all intrometters , but not singular successors . the rise of teinds . the first division of 〈◊〉 . whether teinds be jure divino . kinds of teinds . we have no personal teinds , and vicarage is local according to the custom of the several places . what lands are teind-free . teinds might not be feued after the lateran council . teinds are not annexed to the crown . teinds included . surrender of teinds to the king , and his decreet arbitral for valuing and selling thereof . commission for valuation of teinds . annuity of teinds . the rule for valuing teinds . benefices . decime debentur parocho . consent of the chapter , convent , or prebend , how far requisit . diminution of the rental of benefices . consent of patrons . tacks by colledges . the present condition of teinds . drawn teinds . spuilzie of teinds and inhibitions . rentalled teind bolls . the interest of bishops in their benefices . the interest of ministers in benences . kirks patrimonial or 〈◊〉 . presentation and collation . the effect of possession as to benefices and stipends . stipends allocat and unallocat . teinds change as the lands are in grass , corn , or other crop. teinds are not debita fundi . the legal terms of benefices and stipends . the annat . patronage . title xix . tacks where of rentals , tacite relocation , and removing . the nature of tacks . how tacks become as real rights , effectual against singular successors . who may grant tacks . how tacks may be ser. the tenor or tacks . the effect of obligements to set tacks . tacks become real rights by possession . tacks in wadsets after redemption become valid . the extent and effects of tacks . tacks-men in possession need not dispute the setter's right , disputing as heritable proprietar . the effect of tacks , whereof the tack-duty is payable to creditors . tacks are good active titles for maills and duties . the effect of tacks set to husband and wife . kinds of tacks . rentals . the effect of assignations or subtacks of rentals or other tacks . the effect of sub-tacks , as to tutors and donatars . the effect of rentals in court books , or rental books only . the endurance of rentals . the effect of grassums . how far rentals become void by alienation , assignation , or subtack . defect of subtacks . tacit relocation . how tacks fall in escheat . tacks sleep during ward and non-entry of the setter , and are valid against his liferent-escheat . tacks are 〈◊〉 juris , and extend not to heirs , or voluntary assignys , or subtacks , or removing , but when exprest , except tacks for liferent or equivalent . tacks without ish are null . how far tacks to endure till a sum be payed are valid . tacks are null without a tack-duty . tacks are valid though not expressing the entry . tenents must labour and not wast or open the ground for any minerals . tacks become void by two years not payment of the tack-duty . or for not finding caution to pay the tack-duty bygone , and in time to come . or by the tenents renounciation . by contrary consent of both parties . by deeds contrary to the tack . or by removing . summary removing without warning , in what cases . the old way of removing tenents . warning of tenents to remove . the active title in removings . exceptions against removings not instantly verified , are not receiveable till cautiou be found for the violent profits . defenses against removing and replys thereto . violent profits . succeeding in the vice of tenents removed . title xx. wadsetts : where of reversion , regress and redemption . infeftments for satisfaction of sums principal and annual , or for relief , are proper feudal impignorations consisting with the disponer's property . the nature of wadsets . the nature of reversions . kinds of reversions . 〈◊〉 requisit in reversions . the effect of clauses irritant in reversions . reversions are stricti juris . kinds of wadsets . proper wadsets . the effect of tacks after redemption , contained in reversions . improper wadsets . regress . discharges of reversions . wadsets become legally extinct by declarator of explring thereof , or by the order and declarator of redemption . the order of redemption of apprisings or adjudications . the order of redemption by conventional reversions . premonition . gonsignation . declarators of redemption . the effect of declarators of redemption . defenses against declarators of redemption . requisition . how far other rights may be reserved in redemptions , or renounciations . title xxi . extinction of infeftments : where of resignation ad remanentiam , recognition , disclamation , purpresture , and other feudal delinquences . the form of resignations ad remanentiam . they may be by procurators , or propriis manibus . instruments of resignation prove not without a warrant in writ . resignations ad remanentiam , were valid without registration , till the year . resignations imply all burthens by the vassal affecting the fee. resignation by him who hath no right , with consent of him who hath right , how far effectual . how far superiors may not reject resignations ad remanentiam . how infeftments become extinct by succession as heir , or singulari titulo . the original of extinction of fees , not by the vassals consent , but by his deed. recognition by alienation of the ward fee. recognition by infeftments a se. whether recognition can be incurred by deeds in minority , or on death-bed . whether recognition can be incurred by sub-feudation . how far feus exceeding the half of the full rent may subsist without recognition . in what cases other feus of ward lands , infer not recognition . recognition by alienation , is only of lands clearly ward , simple or taxed . recognition is not incurred , unless the major part be alienat . recognition is not incurred by alienations to the vassals apparent heir . whether recognition be incurred by alienations on condition that the superior consent . inhibition excludes not recognition . recognition is not excluded by the vassals drunkenness , when he alienat . how the superior's consent may be adhibit to alienations to shun recognition . how far the kings confirmation without a novodamus takes off recognition . how recognition is taken off by homologation . recognition excludes all infeftments , tacks , or servitudes , by the vassal's deed without the superior's consent or authority of law. servitudes by prescription are not excluded by recognition . in recognitions who must be cited , and who may compear . the title and order in declarators of recognition . disclamation , how incurred . purpresture ; how incurred . feudal delinquences adduced by the feudists for resolving fees. atrocious deeds against vassals fidelity to their superiors resolving their fees. how far the ignorance or weakness of the vassal excuses , with other exceptions for the vassal . whether the delinquence of the subvassal infers recognition . title xxii . prescription . prescription distinguished and described . usucapion . the several times required to usucapion or prescription , by the roman law. requisits to prescription . bona fides requisit to prescription . whether he who doubteth of his author 's right be in bona or mala fide . evidences of mala fides . the title requisit to prescription . the motives inductive of prescription . exception where prescription took no place by the civil law. the common rule of prescription with us . the beginning of prescription of personal rights with the extensions thereof . prescription of moveables . prescription is reckoned de momento in momentum per tempus continuum . prescription of heritable rights . prescription is not extended against the right of superiority . prescription runs not for tenents against their masters . prescription runs not against minors , but there is no exception of mortifications to pious uses . in our long prescription bona fides is not required . the titles requisit in prescriptions of heritable rights . this long prescription secures wadsets , infeftments for security , teinds , and long tacks . how far teinds can prescribe . this prescription extends to patronage and offices . and to thirlage and all servitudes . this prescription excludes all action and ground of reduction and declarator , if the essentials of the title appear . the several ways of interruption of prescription the way of interruption by king charles the first , as to special rights of the crown , by letters of publication . the annual prescription of the priviledge of apparent heirs intra annum deliberandi . the biennial prescription of the preference of diligences of the creditors of defuncts , to the diligences of the creditors of the heir . triennial prescription of spuilzie , ejection , intrusion , and succeeding in the vice , merchants compts , house-maills , and removings . quadrennial prescription of the priviledge to reduce deeds of minors intra quadrennium utile . quinquennial prescription of arrestments , ministers stipends , multures , rents of tenents removed , and legal reversion of special adjudications . septennial prescription of old apprisings , and summons for interruption . decennial prescription of late apprisings , or general adjudications . prescription of twenty years of holograph bonds , missives , and subscriptions in compt-books , without witnesses . no prescription runs in minority , except removings , house-maills , and merchant compts . part ii. title xxiii . assignations : where of arrestments , and actions for making forth-coming . the several conveyances of rights what rights are not transmissible . the rise of assignations . the tenor of assignations . the conveyance of blank bonds , &c. the rise and effect of intimations . the several wayes of intimation . what assignations are perfected by possession , without other intimation . other supplies of intimation . intimations to more correi debendi . intimation is not necessary to rights registrat for publication , as reversions , &c. nor to orders of merchants . nor to judicial assignations , by apprisings , &c. nor to the legal assignation , jure mariti , by marriage . nor against the cedent's heirs or executors , even though creditors . to what rights assignations extend . assignations carry inhibitions following on the rights assigned , albeit not exprest in the assignation . in what cases the cedent's oath proves against his astigny . assignations intimat before the cedent's death , gives summar execution without confirmation . all exceptions against cedents before intimation are relevant against assignys to personal rights , or tacks . the effect of back-bonds , discharges , or assignations of dispositions before infeftment , or apprisings during the legal . assignys by tutors have no execution till the tutor-counts be made . how far assignys to mutual contracts , may be debarred till performance of their cedent's part . arrestment may be granted by all judges , superior or inferior , and how far they are effectual before other courts . the effect of arrestments made in the debitor's own hand . arrestment is personal , and doth not burthen the successors of him in whose hands it is made , but is valid against the successors of the debitor . arrestment is not effectual for , or against herltable sums by infeftment , but against the same , when made moveable , or any other moveable sums . rents or annualrents are alwayes arrestable . the effect of arrestment of rents , annualrents , or other sums , laid on before the term of payment . the effect of arrestment laid on in the hands of factors . arrestment extends , only to the debts , due by him in whose hands it was laid on . arrestment makes the subject litigious . the order and tenor of loosing arrestments . in what cases arrestments laid on for sums due by decreets , are loosable or not . the effect of loosing arrestment . the order of actions for making foorthcoming . exceptions in the actions for making foorthcoming . the effect of arrestments for making moveable goods foorthcoming . the effect of arrestment of sums . he to whom payment is made after arrestment , is lyable to restore . the oath of parties in whose hands arrestment is made , must condescend specially what they then owed , and when they payed . the decreet for making foorthcoming doth only transter the right to the arrester of the goods , or sums arrested . but assignations do transfer the right when intimat , without farther diligence , and so is preserable to all posterior arrestments , and respect is had to priority of hours , if exprest in the intimation . if the arrestment be prior to the intimation , 〈◊〉 is preferable , not faillng diligence . how assignations are completed by 〈◊〉 , citation , charge , possession , or corroboration . the preference of arrestments in competidon . title xxiv . dispositions : where of resignations in favorem , apprisings , and adjudications of real rights . dispositions of property carry virtually all lesser rights . how superveening rights , belonging to authors , belong to their singular successors . dispositions described . how dispositions are accomplished in equity . how by the law of the romans , and other civil nations . possession accomplisheth real rights . property of moveables is presumed from possession . resignation in favorem . dispositions or assignations by those who have no right with consent of those who have , how far 〈◊〉 . procuratories or infeftments of resignation , after fourty years possession by charters , need not be produced . infeftments on resignation carry any lesser right in the disponer , though not exprest . the effect of resignations accepted by the superior , before infeftment follow thereon . superiors are not obliged to receive the singular successors of the vassals after infeftment expede , though it bear to the vassals heirs and assignys . apprisings can only proceed on liquid sums . apprisings reach all heritable rights , though not provided to assignys . apprisings carry all personal rights without intimation . the rise of infeftments upon posterior apprisings . infeftments may be obtained summarly upon apprisings after the debitor's death . the effect of apprisings as to non-entry , ward , and liserent escheat . the denounciation whereupon apprisings follow , renders the matter litigious , and excludes posterior voluntary rights . competition of apprisings . the effect of apprisings at the instance of superiors against their own 〈◊〉 . the effect of apprisings at to removings , & maillsand duties . allowance of apprisings . whether superiors must receive apprisers , not instructing their authors right . the quantity of the year 's rent due to superiors for entering apprisers . what course is competent against contumacious superiors . the legal reversion of apprisings . apprisers may use other diligence for their payment , though the apprisings were expired . nullities of apprisings . modification of exorbitant penalties in apprisings . apprising sustained without a charge for the sum . apprising sustained , though the letters and executions were blank as to the lands , the messenger who denounced , being judge to the apprysing , in which they were filled up , which was a more solemn execution . an apprising sustained without producing the letters of apprising , being long before , but the instructions of the debt were found necessary to be produced within prescription . an apprising sustained , though by dispensation at a privat place , and the court of apprising adjourned . an apprising of rights generally , preferred to a posterior apprising of the right in special , being an annualrent . apprisings become extinct by payment , and the debitors right revives without new investiture . in what cases apprisers must possess , and how they are countable . what alterations in apprysings are introduced by the act of parliament . cap. . as to the indurance of the legal , and coming in pari passu . now apprisings coming in the person of the debitor's apparent heir , are satisfiable from him or his trustees . how apprisings against parties charged to enter heir , are redeemable . legals run not against minors . apprisers continuing to possess after the legal , can use no other diligence , but the sums are thereby satisfied , though a part of the lands were evicted , the rest being worth the whole sum. the rise of adjudications . the form of adjudications on 〈◊〉 to be heir . why adjudications past at random , and the 〈◊〉 may now be put to instruct some interest in the debitor . what rights are affected with adjudications . superiors must receive adjudgers , paying a years rent , unless they pay the creditor , and then the superior will have no years rent . how adjudications are redeemable : adjudications may be for the apparent heir 's own debt . how adjudications become extinct . the form and effect of adjudications to perfect dispositions . the form and effect of the partial and total adjudications introduced by the act of parliament , september . . title xxv confiscation : where of single-escheat , liferent-escheat , shipwrack , waith-goods , treasure , forefaulture , bastardy , and last-heir . the tenor of letters of horning . the executions of horning must bear the party charged personally , or at his dwelling-house designed . the execution at the dwelling-house must bear six knocks at the most patent gate , because the messenger could get no entry . the knocks must be audible , that those within may hear . if the messenger get entry , the delivery of a copy to any of the family , is sufficient without knocks , and must be so express'd . the dayes requisit for the charge beyond the water of dee . the denounciation must he against the party , and at the mercat cross of the jurisdiction where he dwells . the denounciations must bear three oyesses , or the equivalent . the execution must bear three blasts of the horn. the execution must be stamped . the horning must be registrat , and how . denounciation after satisfaction , hath no effect . the effect of general letters of horning . the order and effect of relaxation from the horn. the single-escheat and extent thereof . how far the denounced's debts or deeds , affect his escheat goods . gifts of escheat , and preference thereof . gifts of escheat not expressing the particular horning whereon they proceed . gifts of escheat , though bearing goods to be acquired , extend but to those acquired within a year after the gift . eicheats within regality . in what cases gifts of escheat are held simular . who must be called in the general declarator . the titles and tenors of general declarators . exceptions against general declarators . special declarators of escheat . leferent-escheat . confiscation of treasures , waith , or shipwrack-goods . forefaulture . several kinds of treason by statute . forefaulture confiscats without the burthen of the debcs , or infeftments , not confirmed by the king. how far feus are effectual against forefaulture . how far tacks of forefault lands are effectual . forefaulture by a rescinded act , was burthened with the debts and deeds of the rebel . forefaulture , when , and how it may proceed in absence . how far the person of the rebel gives right to the fisk. the effect of forefaulture of apparent heirs . in what cases forefaulture dishabilitats . how far the forefaulture of apparent heirs may be extended . explanation of the act of parliament . cap. . importing burthening of forfaultures with the debts and deeds of the rebel . forefaulture is not reducible upon any nullity , but only by way of grace . how far forefaulture takes effect without declarator . what children are lawful , and what bastards . declarator of bastardy . the effect of bastardy , as to succession . legitimation and effects thereof . how the debts and deeds of the bastard affect his estate . ultimus haeyes , and the difference thereof from bastardy . title xxvi . succession . whether in equity there be a rule in succession . that rule is the express will , or presumed will of the defunct . the first degree of succession by the presumed will of defuncts . whether in equity , there be right of representation . failing descendents , ascendents succeed in equity : failing both , brothers and sisters succeed . failing those , the nearest agnat succeeds . the succession of cognats . the jewish succession , whereby all the sons succeed , and exclude the daughters , and the eldest son hath a double portion . fathers could not prejudge the primogeniture of their eldest sons . by the jewish succession , failing descendents , the 〈◊〉 passeth to brethren ; and these failing , to father's brethren ; and failing these , to the nearest kiufman . whether in the jewish succession there be right of representation . why no females but daughters , succeed among the jews . why parents succeed not amongst the jews . succession amongst the romans was first by testament . if there was no heir institute by testament , the ancient roman law called all the children of the family unjorisfamiliat , male and female , ( not excepting adopted children ) to succeed . these failing , the nearest agnats , ( but no parents ) thereby succeed . the roman succession by the praetorian law. their succession by justinian's novel constitution . in feudal succession , the first rule is the express will of the party by the investiture . the next rule is , the conjectured will , according to the nature of the fee. primogeniture now established by common custom , in feudal rights . succession in scotland , is wholly different in moveables and immoveabies . the several degrees of succession in moveables . succession in heritable rights . the difference betwixt the two successions . the priviledge of heirs , not to be prejudged by their predecessors deeds on death-bed . what is estimat death-bed . against what rights death-bed is extended . death-bed annuls no deeds for causes onerous . dispositions in testaments , are as on death-bed . annus deliberandi . kinds of heirs in scotland . no place for adopted , or cognats in succession with us . parents succeed to their children , and exclude the parents collaterals , or those representing the collaterals . title xxvii . heirs . apparent heirs may pursue exhibition ad deliberandum . they may desend their predecessors rights and possessions , being called , or compearing for their interest ; and their executors have right to the rents of those years they were apparent heirs . the aliment of heirs from the donatars , and liferenters . heirs not entered have the benefit of clauses , which by nature import , they should not be actual heirs . heirs have interest in all rights granted to their predecessors , though not mentioning heirs , which are not exclusive of heirs , by their tenor and nature . heirs have the benefit of all rights heritable , by destination , or having a future tract of time , after the defunct's death . heirs have right to moveable heirship , or obligements for sums wherein executors are excluded . heirs of line , are heirs generally ; their interest . heirship moveables . heirs of conquest , their interest . heirs portioners , their interest . heirs male , of tailzie , and provision , their interest . all heirs are lyable passivè for the defunct's debt , but not in the same way . heirs portioners , how far lyable ? the effects of different provisions , or obligations by defuncts , in favour of divers heirs-portioners . heirs not being portioners , not substitute in bonds , are lyable in solidum . the order by which heirs are lyable passivè , and may be discuss'd . heirs of tailzie represent not the defunct , in obligations contrary to the terms of the tailzie . heirs of marriage may quarrel their predecessors deeds , being meerly gratuitous in their prejudice , but not such as are onerous , or rational deeds . heirs having the benefit of discussing , may propone the exception , that all parties having interest are not called , without instructing the right whereto they may succeed . the exception of the order of discussing , is not sustained without condescending on the heritage , whereunto the anterior heir may succeed : and what discussing is . the order and effect of a general charge to enter heir . the order and effect of a special charge to enter heir . renounciallon to be heir , its order and effect . the entry of heirs general , and effects thereof . the entry of heirs upon precepts of clare constat . the entry of heirs by hesp and staple within burgh . entry of heirs by brieves out of the chancery . to whom those brieves are directed . the manner of citing the inquest , and proclaiming the brieve . exceptions competent against members of inquest the apparent heir's claim . exceptions against the claim . first head of the brieve . the second head of the brieve . the third head of the brieve . the fourth head of the brieve . the fifth head of the brieve . the sixth head of the brieve . the seventh head of the brieve . the service . the retour . reduction of retours by a great inquest . reduction thereof otherwise . reduction of retours , how competent . precepts out of the chancery to superiors to infeft . suspensions of the precepts , and the reasons competent therein . the certification of the loss of the superiority , during the life of the superiors disobeying . further reasons of suspension of these precepts . whether the persons nearest at the defunct's deceass , may be entered , where a nearer is in spt . who are feers of conjunct-fees , or provisions substitute . the interest of heirs of provision , and import of clauses of conquest , in contracts of mariage . title xxviii . behaving as heir . gestio pro baerede described . the time when this passive title was introduced . the reasons of introducing it . the latitude used in this title . this title not competent after the intrometters death , or where there was any colourable title . behaving as heirs by intromission with heirship , only competent against heirs of line . intromission of tutors or curators infer not gestionem against the pupils or minors . cases inferring gestion by intromission with the heirship-moveables . exceptions against this member of the title . as first , the pursuer must instruct that the defunct was either baron , prelat , or burgess , by infeftments of lands , or annualrents . the . defense against intromission with heirship moveables , and vitious intromission , that the defunct died rebel , and his escheat gifted before intenting the creditor's pursuit . the . defense , that the apparent heir intrometted , by a gift to himself , or to his behoose . the . when moveables belonging to a defunct remain in his house , whereunto his apparent heir hath right by infeftment . gestion by intrometting with lands , teinds , or tacks , wherein the intrometter might be heir . defenses against this member . gestion by intrometting with the defunct's charter chest. item , by intromission with sums due to the desunct , or doing any deed , that may transmit the defunct's right . this passive title excluded , unless established in the behaver's lifetime . how far heirs portioners , behaving as heirs are lyable , and whether behaving as heir excludes the benefit of discussion and relief competent to heirs actually entering . title xxix . lucrative successors . the rise of this passive title : it takes place though the disposition bear cause onerous , unless it be otherwise instructed . it is extended to dispositions in contracts of marriage , in some cases . lucrative dispositions of any part of the heritage infer this passive title . this title is extended to dispositions made to oyes , though then not immediat apparent heirs ; but not to brothers , though none then nearer . whether it sufficeth to infer this title , that the infeftment was after the debt ; or if the disposition whereon the infeftment proceeds , must also be after . cases in which this title takes no place . title xxx . executory : where of testaments , codicills , legacies , relict`s part , bairns part , dead 's part , confirmations , and office of executory . the romans carefulness to preserve the freedom of testing . the ancient form of testing amongst the romans . the modern form of roman solemn testaments . their nuncupative testaments . their military testaments . requisits for roman testaments . how far sons in familia could test. persons who could not test : persons who could not be institute , or substitute . restriction of the freedom of testing , in favour of children . the legittimes of children . the falcidian portion . the difference of the legittime and falcidian . the trebellianica . fideicommissa codicills . institution of heirs . substitution . substitutions vulgar and pupillar . legacies . legacies are void if the legatar die before the testator , or if the testament be void ; unless there be therein a codicillar clause . the kinds and effects of conditional legacies , or 〈◊〉 . special legacies . conditions adjected to legacies in 〈◊〉 . the inventary . collation . jus accrescendi . the power of testing with us may be restricted by contract or paction . it is restricted to moveables , and extends to no heritable right . wherein the office of executors consists . the nearest agnats are successors in moveables to the intestat . the line of succession in moveables . the nomination of executors , and codicills . solemnities requisit in testaments with us . the effects of testaments made abroad . verbal legacies . the power of testing is competent to minors having curators , without their consents , and to wives without their husbands consent : but not to pupills , idiots , or surious persons . legacies with us . legacies and donations mortis 〈◊〉 are proportionally abated if they exceed dead 's part . whether special legacies will be so abated . the effect of legacies of things not in the power of the testator . the effect of legacies left severally . the relict's part of the executory . the bairns part . what forisfamiliation is . collation by our custom . sums bearing annualrent without clause of inseftment , fall in executory as to the defunct and his children , but not as to the relict . heirs have no benfit of the bairns part , except they renounce in favour of the remanent bairns . if there be but one child unforisfamiliat , the same is both heir and executor , and has the full bairns part . the executory is divided as it was at the desunct's death , and the time of the confirmation . the interest of the nearest of kin. dead's part . the interest of executors nominat , and dative . the order of confirming executors . how executors nominat in england are admitted here . licences to pursue . executors interest , as to the rent the year the defunct's died . executors have right to steelbow goods : co-executors and their power . the effect of executors assignations before sentence . executors ad non executa . executors ad omissa & malè appretiata . executors creditors . how far executors are lyable passivè , and of their diligence . the relief 〈◊〉 heirs and executors . how executors may safely pay creditors . what time executors have to do diligence , before they be lyable to creditors . all executors , and creditors , doing diligence within six months of the defunct's death , come in pari passu . after six months , creditors come in according to the priority of their diligence . executors paying relicts , bairns , and legatars , after six months , and before citation of creditors , are secure ; and the creditors have only repetition against these . executors after obtaining bond or decreet , are not in pleno dominio of the defunct's goods : not do they fall under the executor's escheat , but the defunct's creditors are preferable to the executor's proper creditors . executors may pay priviledged debts , at any time . arrestments hinder the executor to prefer any creditor . compensation is not competent to the defunct's debitors , upon debts due by the defunct , assigned after the defunct's death . exoneration of executors . exhausting of executors , how competent . the diligence necessary to liberat executors : executors are not obliged to depone upon their knowledge of the defunct's debt , except as to their own share . how far co-executors are conveenable severally . executors surviving , are not lyable for the share of the deceased in so far as they executed the testament , and lifted their part . executors are lyable for the inventary , without proving their intromission . where testaments are to be confirmed . title xxxi . vitious intromission . vitious intromission only a passive and no active title , even against other vitious intrometters , without assignation from the creditors . vitious intromission is the most extensive palsive title , reaching not only those who migh represent the defunct , but all other intromet ters . the reason of the large extent of this title . all vitious intrometters are lyable in solidum , and conveenable severally . whether vitious intromission be competent by exception ? vitious intromission sustained generally , without the pursuer's condescendence . vitious intromission is only competent to creditors . how far vitious intromission must be universal . vitious intromission is excluded , if executors were confirmed before citation , though after the intromission . whether executors creditors , being confirmed , exclude vitious intromission pursued thereafter . how far confirmation of executors , although after citation , excludes vitious intromission . super-intromission . vitious intromission how far excluded by gift of escheat and declarator . vitious intromission is excluded , by any colourable title , though defective . the custom of england as to intromission . vitious intromission sapit delictum , and is only competent against intrometters themselves during their life . how far vitious intromission is excluded by acquiring bona fide ? title i. common principles of law. . description of law. . description and division of justice . . divine law. . reason . . conscience . . equity . . moral law. . positive laws of god. . judicial law. . law of nations . . civil law. . feudal law. . cannon law. . the reasons of humane laws . . the law of scotland . . whether law may be handled as a rational discipline ? . three common principles of equity , and three of positive law. . obedience . . freedom . . ingagement . . description and division of rights . . method of the civil law , and the method here proposed . my design being to give a description of the law and customes of scotland , such as might not only be profitable for judges and lawers , but might be pleasant and useful to all persons of honour and discretion ; i did resolve to raise my thoughts and theirs , to a distinct consideration of the fountains and foundations of the peculiar laws of all nations , which common reason makes intelligible to the judicious , when plainly and orderly proposed : and therefore , have always in the first place set forth , that common rule of material justice , by which mankind ought to govern themselves , though they had no positive statutes or customes ; and then shewing how these are thence introduced . i have therefore chosen the method i thought fittest for this purpose , and the terms most intelligible in common use ; and have as much as i could , forborn the terms of art. no man can be a knowing lawer in any nation , who hath not well pondered and digested in his mind , the common law of the world , from whence the interpretation , extensions and limitations of all statutes and customs must be brought . i have therefore begun with the common principles of law , and thence have laid down the method i follow , and have explained the general terms , commonly made use of in law. there is no term of which men have a more common ( but confused ) apprehension , than what law is : and yet there be few terms harder to be distinctly conceived or described . the clearest conception of it i can find , is thus ; . law is the dictat of reason , determining every rational beeing to that which is congruous and convenient for its nature and condition ; this will extend to the determination of indifferency of all rational beeings . god almighty , though he be accountable to , and controllable by none , and so hath the absolute freedom of his choice ; yet doth he unchangeably determine himself by his goodness , righteousness and truth ; which therefore make the absolute , soveraign , divine law : the same is also the law of all rational creatures , by which they ought to determine and rule their free actions ; but the congruity and conveniency of their nature affords them other dictates of their reason , which quadrat not with the divine nature ; such as adoration , obedience , common to angels and men. and reason doth determine mankind yet further from the conveniency of his nature and state , to be humble , penitent , careful and diligent for the preservation of himself and his kind ; and therefore to be sociable , and helpful , and to do only that which were convenient for mankind to be done , by every one in the same condition , whereof the rule in the gospel is an excellent test , quodtibi fierinon vis , alteri ne feceris . thence also are the three common precepts in the roman law , honeste vivere , alterum non ledere , suum cuique tribuere ; all which are evidently the common interest and advantage of mankind . this is that eternal law which cannot be altered , being founded upon an unchangeable ground , the congruity to the nature of god , angels and men ; and therefore god cannot deny himself , or act unsuitably to his divine perfections : and therefore it is said , shall not the judge of all the earth do justly ? and that it is impossible for god to lie ; not by any fatal necessity , as if he had not power and freedom enough , but because his goodness , justice and truth , are as certain by his free choice , as are his omnipotency and soveraignty . this is also called the law of nature , because it ariseth from the congruity or conveniency of nature , and thence is known by the light of nature . . correspondent to these dictats of reason , wherein law consists , which are in the understanding ; there is an inclination in the will to observe and follow these dictats , which is justice : and therefore it is described , constans & perpetua voluntas suum cuique tribuendi , where , by the will , is not understood the faculty , but the inclination thereof , determined by the law , to give every one that which the law declareth to be due ; and it is divided into distributive and commutative justice . distributive justice , is the inclination to retribute rewards to the virtuous ; and punishments to the vitious , proportioned to their actings , which is now almost wholly devolved upon publick authority ; little remaining , but incouragement and praise to the virtuous , and discouragement and discountenance to the vitious . commutative justice , is the inclination to give every man his right ; and though the name is taken from the interchange of private rights , yet it reacheth to all prestations , which are not by way of reward or punishment . there being nothing here proposed but the private rights of men , it is only requisite to consider the laws by which private rights are constitute , conveyed or destitute , and these are either divine or humane . . divine law is that mainly which is written in mans heart , according to that of the apostle , for when the gentiles who have not the law , ( to wit , written in the word ) do by nature the things contained in the law , these are a law unto themselves , which sheweth the works of the law written in their hearts ; their conscience also bearing them witness , and their thoughts in the mean while accusing or excusing one another ; this is called the law of nature , because it is known naturally , either immediately , like unto these instincts which are in the other creatures , whereby they know what is necessary for their preservation : so the first principles of this natural law are known to men , without reasoning or experience , without art , industry or education , and so are known to men every where through the world ; though they keep no communion nor intercourse together , which is an unanswerable demonstration of the being of this law of nature . it is said to be written in the hearts of men , because law useth to be written on pillars or tables , for certainty or conservation : so this law is written by the finger of god upon mans heart , there to remain for ever . such are the common practical principles , that god is to be obeyed , parents honoured , our selves defended , violence repulsed , children to be loved , educate and provided for . . with these common principles , with which god hath sent men into the world ; he gave them also reason , that thence they might by consequence , deduce his law in more particular cases ; and this part of the natural law , is called the light or law of reason . it is called by solomon , the candle of the lord , searching the inward parts , proverbs . verse . . this law is also called conscience , which is said in the forecited place , to bear witness , and thereby our thoughts do either accuse or excuse one another , according to the judgement or testimony we have of our own thoughts , as good or evil , consonant to , or dissonant from , the law of nature , shining in the heart . this natural law , as it is derived from these principles , the nearer it is thereto , it is the clearer ; and by the more immediate consequences it be derived , it is the surer : for as the body in its progressive motion , from one step to another , walketh surest by the shortest steps ; so doth the mind in deducing this divine law : whence it is , that this part of the law of nature is not equally evident to all men ; but the more of reason they have , the more clearness they have of it , which hath made men of reason , especially these who have exercised themselves in the inquiry of right , to be had in high esteem and admiration amongst men , who , though their invention was not so eminent , yet their judgement closed and went along with that , as having a native obligation in it . and so many times these responsa prudentium , have been received with as much authority , and more heartiness for laws , than the dictates of soveraigns . cicero in his oration , pro milone , doth excellently set forth and distinguish this natural law , from positive law ; for , saith he , hac non scripta sed nata lex , quam non didicimus , accepimus , legimus verum ex natura ipsa arripuimus , hausimus , expressimus , ad quam non docti , sed facti ; non instituti , sed imbuti sumus , ut si vita nostra in aliquas insidias , si in vim , aut in tela , aut inimicorum , aut latronum inciderit , omnis honesta ratio esset expediendae salutis . . this law of nature is also called equity , from that equality it keeps in all persons ; and is not framed or fitted for the interest of any , as many laws of mens choice be ; from the rigour whereof , recourse ought to be had to this natural equity : for though mens laws may be profitable and ne , cessar for the most part ; yet being the inventions of frail men , there occurs many , casus incogitati , wherein they serve not . but equity takes place , and the limitations and fallancies , extensions and ampliations of humane laws are brought from equity , though equity be taken some times for the moderation of the extremity of humane laws ; yet it doth truly comprehend the whole law of nature ; otherwise it could not possibly give remeid to the rigour , and extremity of positive laws in all cases . . the law of nature is also termed the moral law , being the absolute and adequat rule of the manners of men , for all times , places and persons ; and this denomination , it hath commonly in opposition to the judicial and ceremonial law. the roman law doth sometime take the law of nature in a most strict sense , as it excludeth the law of reason , and as it is founded in the nature of man , in so far as is common with other animals ; and therefore they define it to be quod natura omnia animalia docuit , as the conjunction of male and female : or marriage , the procreation or education of children , &c. but even in that law , the law of nature is extended and distinguished into the original and primitive law ; and that which is derived thence , such , as for the most part , is the law of nations : and there is no doubt , but there is more of the law of nature founded in the rational nature of man , as he is a rational and sociable creature ; and even that which appeareth to be in the sensitive nature , is truely founded in the rational nature ; and therefore is not properly communicable unto the beasts , who have no law but their natural instincts , having only some resemblance to the law of nature . the law of nature , as it is imprest in our hearts ; so in the goodness of god , it is exprest in his word , wherein he hath not only holden forth these sacred mysteries , which could only be known by revelation , as having no principle in nature from whence they are deducible ; but also , because through sin and evil custome , the natural law in mans heart was much defaced , disordered and erroniously deduced : he hath therefore re-printed the law of nature in a viver character in the scripture , not only having the moral principles , but many conclusions thence flowing , particularly set forth . this analogie of the law of nature , even in the hearts of heathens , and as it is set down in the law of god , evidenceth sufficiently , that both of them proceed from the same omniscient author . . beside this natural , necessar and perpetual law , god hath also given to men voluntar and positive laws , which , though not at the pleasure of men , yet in themselves are mutable ; and as they had a beginning , so some of them had , and others of them shall have an end , when the occasion , exigence and utility for which they were constitute , shall cease : such were the ceremonial laws , which containing a figurative and typical administration of the worship of god , shadowing forth christ and his propitiatory sacrifice of himself ; now when the sun of righteousness hath arisen , these shadows have flown away , and are in the scripture repealed ; in lieu whereof , is the outward order of the worship and government of the christian church , and the laws of god relating thereto , though we are to expect no change of them while time is , and are as binding to all , to whom their lines are gone , as the natural law , yet are they no part of it , for they are not written in the heart of man , nor deducible by reason from any such principle . such are the sabboth on the first day of the week , the particular offices in the church , their authority and maintainance ; for though the law of nature doth teach , that god is to be acknowledged and adored , yet the impowering of some certain persons to be leaders in the publick adoration , and the fixed time thereof , either as it was under the law , or as it is under the gospel , cannot be reached thence , but had its beginning , and hath been altered . some also do account marriage , and the degrees forbidden in levit. to be a positive law of god , though they acknowledge it , not only to be given to the jews , but to all men ; yet the natural and universal aversion of marriage in these degrees , and abhorrence of that brutish commixtion , without discretion of degrees , which is observed in all nations , whom corrupt custome hath not so far depraved , as to forget , not only this , but most of the uncontroverted laws of nature , do sufficiently evince the contrair ; for if parents and posterity be all accounted as one degree , there is nothing prohibited by the law of god , but the very next degree of these who are in the place of parents , as uncles and aunts , or in the place of children , as nephews , neices , or brethren and sisters , so that there can be no doubt , but the prohibition of commixtion of ascendents and descendents , is purely natural . . the prime positive law of god , is the judicial law , which god by the ministry of moses , prescribed to the people of israel , wherein the lord was pleased to be the particular law-giver , and judge of that people whom he had chosen from among all nations , for a peculiar people to himself , and to whose inclinations it is befitted ; there are not a few who esteem the judicial law oblieging to all nations , mainly , because it doth not appear in the gospel , to be abolished as the ceremonial laws are , and because of its excellency beyond the laws of heathens , or other men , who might not only err in expediency , rendring their laws unprofitable ; but also might make them unjust and inconsistent with the immutable moral law of nature : which reasons do sufficiently infer , that in the constitution of humane laws , chief respect ought to be had to the judicial laws of god ; and they assumed where the inclination of the people and their condition , do not render them inconvenient . but that these laws were accommodate unto their proper temper , is evident in the law , concerning the bill of divorcement , which beareth , to be permitted for the hardness of their hearts , which was natural and peculiar to them , of jealousie and bitterness against their wives ; therefore the lord not only appointed tryal , neither natural , necessar , nor accustomed elsewhere , by those tokens of virginity , for evidencing the wifes faithfulness in not giving a polluted woman for a chast ; but also the extraordinar and miraculous tryal , by the water of jealousie ; and therefore christ did expresly abrogate that law , and shew us that moses did not command to divorce , but for the hardness of their hearts , only permitted it , and did command , that when the husband would put away his wife , he should give her a bill of divorce ; but it doth not follow , that the judicial law is in it self a law to all nations , or that the lord purposed it so to be : but on the contrar , it appeareth that his purpose was only to deliver it , for a peculiar law to israel , when he saith , what nation is so great , that hath statutes and judgements sorighteous , as is all this law which i set before you this day , deut. . vers . . and again , he sheweth his word unto jacob , his statutes and judgements to israel , he hath not dealt so with every nation , and as for his judgements , they have not known them , psal. . vers . . and therefore the same law was not to israelits and to strangers , even to proselytes , as appeareth in the matter of usury and bondage , which were allowed as to strangers ; but the former simply forbidden , and the latter limited as to israelits : neither is there any necessity of an abolition express of this law in the gospel , seing it was not given to all nations ; and it doth yet bind the jews , so far as it doth not build upon the ceremonial law : and therefore that part of the judicial law , which is founded upon , or conducible to the moral law , may be well received by other nations , to whose inclinations the same expediencies will agree , as most of the criminal laws are : and though they could suit with the frame and current of the laws already established , yet would they be far from making up a law to rule any nation now , after mans pravity hath so much increased vice and deceit , that which was sufficient in the simplicity of these times , would come far short . . humane law is that , which for utilities sake is introduced by men , which is either by tacit consent , by consuetude or custome , or by express will or command of these in authority , having the legislative power , and these were ofttimes written , though sometimes also they were not written ; as were licurgus laws , which not only were not written , but a law against it , that they should not be written : hence is the distinction of laws , in written and unwritten , because of their original ; for , ex post facto , customes or other unwritten laws may be written by private persons ; but they were not at first written by the law giver . it is true , the law is sometimes strictly taken in opposition to custome , as it comprehendeth equity or the natural law , and the edicts and statutes of nations , and their law givers . and sometimes more strictly , as in the vulgar distinction of law , statute and custome ; in which , law signifieth equity , or the common law , as statutes and customes do the peculiar recent laws of several nations . and though that be only the law of man , which is voluntar and positive , constitute by man ; yet equity and the natural law , in so far as it is allowed , declared and made effectual by man , is in so far accounted among the laws of men . the laws of men are either common to many nations , or proper to one nation , or peculiar to some places or incorporations in the same nation ; as were the municipal laws in the roman republick ; and such are still in most nations , not only in matters of lesser moment , but in the highest matters of private rights , as in succession , which is diversified in many provinces , in france , germany , and the netherlands , and england , as may be instanced in the gavil kind of kent . the law common to many nations , is that which is commonly called , the law of nations , which stands in the customs owned and acknowledged by all , or at least the most civil nations , which for the most part , are nothing else but equity , and the law of nature and reason ; though in part also , there be positive laws introduced , by common consent of nations , and which do no less obliege these nations , as importing their obligatory consent , then do the customs of particular nations and incorporations : such are the laws of captivity and bondage , of these taken in war , the safety of ambassadors , though more guilty of the common quarrel , than the rest of the nations from whom they are sent ; yet for common utilities sake , while they act in , and conform to that capacity , they are safe , otherways there could be no commerce , orderly indiction of war or pacification . and therefore the romans , when they had to do with barbarous nations , who did not acknowledge this law , did send their ambassadors to their borders , and there did require reparation , and denunce war because they could safely go no further ; and for the same reason ( though slavery be against the natural law of liberty ) yet it is received for conveniency by the nations , being more willing to lose liberty than life . such also are the laws of hospitality , or the mutual trust betwixt the host and the guest , whom he hath willingly received in his house , whereby neither of them can act any thing prejudicial to the life or liberty of the other , while in that relation ; though otherwise they had just reason , and might do the same ; yet the doing of it then , were a violating of the law of nations . but for the most part , the law of nations is nothing else but equity , and the law of nature and reason , which standeth as the common rule among men , appointed of god , by which they may know , and crave each from other their rights ; and in case of refusal , may vindicate the same by force , wherein they are still regulat by the common law of reason , and the customs of nations , keeping a just proportion betwixt the wrong and reparation , though taken by force : and not like draco , who made the punishment of all his laws death ; and therefore were said to be written in bloud , so by making the issue of every quarrel to be the conquest of the debelled , and the swallowing up of all their rights , as if they had pactioned to put them all upon the issue of that war ; whereas there is nothing in question by either party , but the striving for reparation of that injury which the one owneth , and the other denyeth to acknowledge as an injury , or refuseth reparation thereof . this law is chiefly understood , when the common law is named amongst us ; though the english so name the common current of their civil law , as opposite to statute and their late customes , which is sometimes so taken with us : and oft-times by the common law , we understand the roman law , which in some sort is common to many nations . . the law of each society of people under the same soveraign authority is called , the civil law , or the law of the citizens of that commonwealth ; though that now be appropriate to the civil law of the roman common-wealth , or 〈◊〉 , as the most excellent . and because of that assinity that the law of scotland hath with it , as have also the laws and customes of the chief nations , to which the victorious arms of the romans did propagat it , and its own worth , even after the ruine of the roman empyre , which hath so commended it , that though it be not acknowledged as a law , binding for its authority ; yet as a rule , followed for its equity : it shall not be amiss to say something here of it . the romans were first governed by kings who gave them laws , which being collected by papirius , in the time of tarquinius superbus ; were therefore called the papirian law , tarquinius and monarchy being thrown out , the papirian law collected in his time and name , was partaker of his hatred , and contempt of the people ; and there was no fixed , nor written law among the romans , till they sent the triumviri , posthumus , maulius and sulpitius , to the greek republick , to understand the laws of these common-wealths , and thence to frame a model of government , and laws for the roman state , which they did , and made up the law of the twelve tables , which being comprehended in few words and marrowy sentences , all written upon twelve tables , was fixed upon the most publick mercat place at rome , that they might be easily known , and keeped in mind by all the citizens . these were so acceptable and satisfactory to the romans , that they have been the foundations and principles of all that great body of law , which afterwards they had ; all which was ordered to that ancient law , as extensions and limitations of it , which was done at first by parts , by the plebiscita laws , inacted by the suffrage of the people , or by the senatus consulta , or by the edicts of the pretor . or by the responses of the jurisprudents , who were authorized to give answer in dubious cases ; as cornelius , nasica , fabauf . cato , gallus , ariciusidius , manlius , scevola , crassus , iuventius , ulpianus , paulus , julianus and others ; and when the soveraign power was devolved upon the emperour by their edicts , rescripts and decrees , until the roman law increased unto so great a bulk , that there were thousands of books of law , in which the brevity and perspicuity of the twelve tables was then lost , as now the body of them , through the injury of time has perished . but at last the emperour justinian , did by the pains of seventeen select jurisconsults , pick out the marrow of all the ancient laws , and digest them into some method , into the fifty books of the digest or pandects , which therefore have the authour of every law prefixed to it ; he did also by tribonian and others , collect the rescripts , decrees , and all the edicts of the emperours , which before were more imperfectly compiled in their theodosian codex , and which thereafter he perfeited , and named the justinian codex , as posterior constitutions of the emperours were gathered together in nine collations , which were called the novel constitutions . justinian did also cause frame the four books of the institutes , as the sums and elements of the whole law. but as nothing humane is stable , shortly after this greatest perfection of the roman law , in the time of phocas the emperour , who raigned fourth after justinian , and died in the year , . the roman empire being opprest by the irruption of the gothes and longobards , the roman law did also lye under ashes above the space of five hundred years , until a new shape of the roman empyre , being set up in germany , lothaius the emperour , who flourished in the eleventh century , did again revive and restore the roman law , which thence was every where taught in the schools , and inlarged with more vast heaps of commentaries and treatises , then were these of the ancient lawers , though not claiming the like authority . . in the interim , did the feudal law or customs take rise among the longobards , and other nations , who having expulsed out of italy the roman empyre , were willing to change their barbarity , and to be successours to the romans in seats and civility ; and that they might maintain their conquests , gave out all their lands to their souldiers and assecls , as benefices to them for their service , and assistance in their wars : the example of which , and the new interest it afforded to soveraigns , to have all their territories to hold of themselves ; and most of their subjects by that new relation , to become their feudatars and vassals , hath given the feudal law wings , whereby it hath spread it self over most of the world. . in the declining also of the roman empyre , the bishop of rome having mounted himself unto the imperial eminence of universal bishop , did in imitation of the emperours cause , compile the cannon law ; and first , that part which is called decretum , which was perfeited by gratian the monk , out of the fathers , doctors and counsels , though much thrown and vitiat towards the interests and errours of the roman church . and after the decretals were compyled by pope gregory the ninth , out of the decretal epistles of the popes , which boniface the eighth augmented by addition of the sixth book of the decretals ; the first whereof , is in imitation of the digests made of the sentences of the ancient lawers ; and it out of the sentences of the fathers , doctors and councils of the church ; and the latter , in resemblance of the codex , compacted of the rescripts of the popes , and that nothing may be improportional unto the noval constitutions , do answer the clementins and extravagants . this pontifical law extended unto all persons and things , belonging to the roman church , and separate from the laity , all things that may relate to pious uses , or which may be claimed to be under the protection of his holiness , as orphans , the will of defuncts , the matter of marriage and divorce , all which he had obtained to be exempted from the civil authority of these soveraigns , who were devoted to that see. these things being holy , were not to be temerat by the profane hands of princes or free people ; and so deep hath this canon law been rooted , that even where the popes authority is rejected ; yet consideration must be had to these laws , not only as to these by which church benefices have been erected and ordered , but as to these which contain many equitable and profitable laws , which , because of their weighty matter , and being once received , may more fitly be retained than rejected . . before we come to the customes of scotland , there lies this block in the way of all humane laws ; that seing , as hath been said , equity and the law of nature and reason is perfect and perpetual , all laws of mens constitution , seem not only to be dangerous , in that they may impinge upon the perfect law of god ; but also to be useless and unprofitable , seing men may live better , and more safely by the divine dictats of god written in our hearts , than by the devices of men , so that it may be thought , that those , who in stead thereof , imbrace the laws of men , may meet with the reproof of the israelites , who were said to reject god from raigning over them . this reason is so pressing , that if the law of nature , and of reason , were equally known to all men , or that the dispensers thereofcould be found so knowing and so just , as men would , and ought to have full confidence and quietness in their sentences , it would not only be a folly , but a fault to admit of any other law ; but the prime interests of men being to enjoy their rights , not only in safety and security , but in confidence and quietness of mind , that they may clearly know what is their right , and may injoy the same : therefore humane laws are added , not to take away the law of nature , and of reason , but some of the effects thereof , which are in our power . and therefore as by the law of nature , man is a free creature , yet so as he may ingage himself , and being ingaged by the same law of nature he must perform : so mens laws are nothing else , but the publick sponsions of the people , which therefore , even by the law of nature , they may and must perform , and therefore are they introduced . first , for clearing and condescending on the law of nature , and of reason ; such laws can none quarrel , because they do not alter , but declare equity , and that very necessarily , because , though equity be very clear in its principles , and in thesi ; yet the deduction of reason further from the fountain , through the byass and corruption of interest , may make it much more dubious , in hypothesi , when it comes to the decision of a particular case , in all its circumstances ; and therefore it is necessar it be so fixed and cleared by statutes and customs , suitable thereto , that the people may be secured . secondly , there be many points of rights competent to men in equity , as it may be more profitable for the people to forbear the pursuance of them , than to be at the trouble and expenses of the pursuit ; as when humane laws do cut offmatters of less concernment , and in them , rathertake themselves to the honesty of their party , than to compulsion by remeids of law ; such are the remuneratory obligations of gratitude , and the inward obligations of the mind , as of affection , love , kindness , &c. according to the proverb , we cannot poind for unkindness . it is not to be doubted , but there be more such obligations , than are the obligations relating to outward performances of some palpable or sensible thing ; and it might easily appear , what vexation it might breed , if not only the latter , but also the former might all be pursued , and extorted by compulsion of law. and none can think the law of nature injured , because of common consent , men will spare themselves the labour to pursue those things which they may easily dispense with ; and so likewise for the same reason , though by the moral law , we are obliged to love our neighbour as our selves : from whence arise duties of charity and mercy , assistance and relief ; yet for the most part , men do not compel for the negative of these commands , but only for the contrary acts of injury , by doing evil in stead of good . thirdly , for the security of the people and anticipation of error and fraud , and that evident probation may be had , men do most profitably order deeds to be done in such a palpable and plain form , as may easily appear ; in which there can be no injury , seing the manner of doing these deeds , is free , and in our power : thus , though the dispositive will of the proprietar be sufficient to alienate any thing that is his , and to constitute the right thereof in another ; yet by the civil law and custome of most nations , delivery , or apprehension of possession , for conveying the right of goods ; and seasing is necessar for conveying of the rights of lands by the feudal law ; and so by our customs , assignations are not effectual to transfer personal rights , till intimation follow : our custome also appoints write to be made , where it is easie and ordinar to be done : and therefore as the penalty of the neglect , or contempt thereof doth exclude witnesses , in matters of importance , and admitteth only write , or oath of party , in cases where write is accustomed ; so the romans ordained , that because the agreements of the people , when they stood in meer conference , that words were easie to be mistaken by themselves or witnesses ; that therefore the parties should perfeit such contracts by a solemn stipulation , wherein the one party did interrogat , if the other did agree to such terms as he exprest , and the other immediatly repeated his answer , closing with him in terms : and therefore , if they did not so stipulate , they refused them action upon naked paction . fourthly , nations for the flourishing of their families , do otherwise dispose of their estates and possessions , and their laws do order them otherways than the law of nature doth ; for in the most part , the heretage and succession in the whole land-rights belongs to the eldest son , as stem and line of the family ; and the parents are presumed to provide the rest of the children with competent portions ; though by the law of nature , the right of succession doth belong to all : and even in this positive law , altering the course of the law of nature , hath its example from the judicial law of god , by which the males exclude the females , and the eldest hath a double portion . fifthly , according to the humours and inclinations of people , men do lay the heavier penalties upon the transgression of such laws as stand in opposition thereunto , which may be altered when these inclinations alter . and so the lord did frame the law of moses for the humors of that people , in some things permitting , without punishing the transgression of the most palpable and weighty laws of nature , as in poligamy and divorce ; and also extending the proportion of equality , observed in the law of nature , in restitution and retribution , as in theft : hence it appears how necessar the laws of men are ; yetsurely they are most happy whose laws are nearest to equity , and most declaratory of it : and lest altering of the effects thereof , except in cases eminently profitable , like unto these now pointed at ; yea , and the nations are more happy , whose laws have entered by long custome , wrung out from the debates upon particular causes , until it come to the consistence of a fixed and known custome , for thereby the conveniencies and inconveniencies through a tract of time , are experimentally seen ; so that which is found in some cases convenient , if in other cases afterward it be found inconvenient , it proves abortive in the womb of time , before it attain the maturity of a law. but in statutes , the lawgiver must at once ballance the conveniencies and inconveniencies , wherein he may , and often doth fall short , and there do arise , casus incogitati , wherein the statute is out , and recourse must be had to equity . but these are best which are approbatory , or correctory of experienced customs , and in a customary law , though the people run some hazard at first of their judges arbitriment : yet when that law is come to a fulness and consistence , they have by much the advantage in this , that what custom hath changed , is thrown away , and obliterat without memory , or mention of it ; but in statutory written law , the vestige of all the alterations remain , and ordinarily increase to such a mass , that they cease to be evidences , and securities to the people , and become labyrinths , wherein they are fair to lose their rights , if not themselves , and must have an implicite faith , in these who cannot comprehend them without making it the work of their life . . our customes , as they have arisen mainly from equity , so they are also from the civil canon and feudal laws , from which the terms , tenors and forms of them are much borrowed ; and therefore , these especially ( the civil law ) have great weight , namely in cases where a custome is not yet formed ; but none of these have with us the authority of law : and therefore are only received according to their equity and expediency , secundum bonum & equum ; and though it may appear from some narratives of our statutes , that the parliament doth own the civil and canon law , to be our law , as in the revocation of king james the fourth , parliament . c. . where it is said , and since it is permitted by the constitution of law , civil and canon , that minors may revoke , par. . cap. . so likewise nottars , forgers of false writs , are ordained to be punished after the disposition of common law , par. . cap. . and in the act establishing religion , all acts contrair , or constitutions , canon , civil , or municipal , are abrogated , par. . cap. . yet these amount to no more , then that these laws are an example ; after the similitude whereof , the parliament proceeded . and though in the cases of falshood , the punishment be assumed as in the civil law , which will make that a part of our law , it will not infer that in so far it was our law before , much less in the whole . and there is reason for the abrogation of the canon law , at the establishing of the protestant religion ; because in the popish church , it was held as an authoritative law : but since it is only a law as to these cases , that were acted by it when it was in vigour ; and in the rest only as our customes assume some particulars thereof , according to the weight of the matter : but for the full evidence of the contrair , there is an express and special statute , declaring this kingdom subject only to the kings laws , and no other soveraigns laws , par. . cap. . par. . cap. . yea , the law of scotland regulats the succession , and rights of scottish men in scotland , though dying abroad , being resident there , as was found in the case of collonel hendersons children , who having died in holland , legatted upon heretable bonds , according to the custome there ; yet they were found not to be conveyed by testament , but belonging to his heirs , according to the law of scotland , dury , . decemb. . the like betwixt melvil and drummond , dury , . july . and lately , in the case of the executors of williami schaw , factor at london , dying there , it was found , that a nuncupative testament , confirmed in england , being contrair to the law of scotland , which admits of none such , was null , and the nearest of kin preferred to the executor , and universal legatar named there , january the . . schaw contra lewens ; but as to the manner of probation , or subscription , the law of the place regulates . dury , . decemb. . falconer contra the heir of beatty , and the . july . gordoun contra morley , . feb. . harper contra jaffray . so a bond by an english man to a scottish man , residing there , being after the style of england , payment thereof was found probable by witness , and by the oath of the cedent against the assignay , . june , . mcmorlan contra melvil ; yet a bond granted by scottish men to an english man in england , found regulate by the law of scotland , and not to be taken away by witness , being after the style of scotland , and registrable in scotland , decemb. . . scot contra henderson and wilson . but the law of england and other forraign nations , is matter of fact to us , probable by the declaration of the judges there . january . . cunningham contra brown. the law of scotland , as of all other nations , at first , could be no other , than equum & bonum , equity and expediency ; for it is not to be supposed , that any nation at their first association and owning of a government , did appoint positive laws , nor could they have customes anterior to their constitution ; and yet it is necessarily implyed , that they must submit to , and be governed by a law , which could be understood no other , than what their soveraign authority should find just and convenient . it may be some cities at their first constitutions , might have enacted laws ; but it cannot be found in all the records of antiquity , that ever any nation or countrey did so , whatsoever be said of the salique law of the french , which they hold so ancient and fundamental : it is either fictious or long posterior to their constitution , into a nation . and therefore , as in arbitriments , parties are understood to submit themselves to arbiters , secundum arbitrium boni viri ; so nations of old submited to their princes , choosing rather to refer their interests and differences to the determination of their soveraign , than that every one should be a judge to himself , and should take and hold by force , what he conceived to be his right , without any superiour judge than himself to appeal to , and thereby live in perpetual war : whence government necessarily implys in the very beeing thereof , a yielding and submitting to the determination of the soveraign authority , in the differences of the people , though one , or either party should conceive themselves injured , that thereby private opinion may give place to publick authority , although they had natural power , sufficient to withstand the same ; otherways they behooved to dissolve authority and society , and return to the soveraignity of their private judgement , and their natural force , from which they did flie unto the sanctuary of government ; which though it may sometimes err , yet can be nothing like to these continual errors , when every one owns himself as soveraign judge in his own cause . next unto equity , nations were ruled by consuetude , which declareth equity and constituteth expediencies . in the third place , positive laws of soveraigns became to be accustomed ; customes always continuing , and proceeding , so that every nation under the name of law , understand their ancient and uncontroverted customs , time out of mind , or their first and fundamental law : so the romans accounted their laws of the twelve tables , and when they did express any thing to be ipso jure , they meaned it to be such , by that ancient law , in opposition to their recent customs , introduced by their pretors and constitutions of their people , senat and princes . the english also , by their common law , in opposition to statute and recent customs , mean their ancient and unquestionable customs . in like manner we are ruled in the first place , by our ancient and immemorial customs , which may be called our common law , though sometimes by that name , is understood equity , which is common to all nations ; or the civil roman law , which in some fort is common to very many . by this law is our primogenitur , and all degrees of succession , our legittime portions of children , communion of goods betwixt man and wife , and the division thereof at their death ; the succession of the nearest agnats , the terces of relicts , the life-rent of husbands by the courtesie , the exclusion of deeds on death-bed , which are anterior to any statute , and not comprehended in any , as being more solemn and sure than these . in the next place are our statutes , or our acts of parliament , which in this are inferiour to our ancient law , that they are lyable to defuetude , which never incroaches on the other . in this , we differ from the english , whose statutes of parliament , of whatsoever antiquity , remain ever in force till they be repealed , which occasions to them many sad debates ( publick and private ) upon old forgotten statutes . but with us , the lords of session , being , by their institution , authorized with power , to make rules and statutes , to be observed , in the manner and order of proceeding , and administration of justice , par. . cap. . par. . cap . their decisions are final and irrevocable , when solenmly done , in foro contradictorio ; and thereby , recent custome or practique is established , both by their acts of sederunt and decisions , which extend , not only to the interpretation of acts of parliament , but to the derogation thereof ; especially so far as concerns the administration of justice , which is specially committed to them , whereby all the old acts of parliament , concerning the forms of process , are in desuetude , and in several points more recent statutes ; for instance , albeit by the act of parliament , . cap. . reductions of infeftments are appointed to be sustained by exception or reply ; yet the lords seeing that this is inconsistent with the necessar and ordinar form of process , whereby rights cannot be annulled or reduced , till the parties and their authors be called , that the same maybe first produced , therefore they do not take away infeftments by exception or reply , notwithstanding of the said statute : but there is much difference to be made betwixt a custome by frequent decisions , and a simple decision , which hath not like force , especially if it be invested with many circumstances of fact. but such are more effectual , if they be in any abstract point of law. yet frequent agreeing decisions , are more effectual than acts of sederunt themselves , which do easily go into desuetude . where our ancient law statutes , and our recent customs and practiques are defective , recourse is had to equity , as the first and universal law , and to expediency , whereby laws are drawn in consequence , ad similes casus ; but if it appear , that such cases have been of purpose omitted by the parliament , the lords will not extend the same , as albeit by the act of parliament , . cap. . composition to superiours for receiving apprisers , be appointed , and the same in the next act omitted , as to adjudgers . therefore the lords presuming thence , from the propinquity of these acts , that such compositions were omitted of purpose , they would not extend the benefite of the superiour to a composition in adjudications . dury , . of july , . greirson contra closburn , but now it is extended to adjudications ; that in these , superiour hath a composition by the act of parliament , . decemb. . how far the civil , common , or feudal law have place with us , hath been already said . but it is not to be thought , that the feudal law is our proper law , as craig relates , lib. . dig . . sect . per. there being scarce any thing as a common , feudal law , but it is local and customary to every place , and doth not extend to the half of our rights : craig doth very well observe , near that place , that these books called regiam majestatem , are no part of our law , but were compyled for the customs of england , in . books , by the earl of chester , and by some unknown and inconsiderate hand , stollen thence , and resarcinate into these four books , which pass amongst us ; which though they be mentioned , to be revised and reformed with our former ancient laws , par. . cap. . par. . cap. . yet these do not acknowledge them , as already become our laws ; but as such , as by alteration thereof , may become our law. the law of scotland in its nearness to equity , plainness and facility in its customes , tenors and forms , and in its celerity and dispatch in the administration and execution of it , may be well parralleled with the best law in christendom , which will more plainly appear , when the proportion and propinquity of it to equity shall be seen . . before we come to the common principles of law , this question would be resolved , whether law may , or should be handled as a rational discipline , having principles from whence its conclusions may be deduced ? most lawers are for the negative part , commonly esteeming law , especially the positive and proper laws of any nation , incapable of such a deduction , as being dependent upon the will and pleasure of law-givers , and introduced for utilities sake , and so frequently alterable , that they cannot be drawn from prior common principles , and keep the artificial method of rational disciplines ; and therefore they rest satisfied with any order , whereby the particular heads and titles may be found , whereunto the confused order of the civil law ( which is the greatest blemish in it ) hath been instrumental ; for there is nothing more ordinar for learned men , than to maintain their authors , and through their respect to them , not to be sensible of their tollerable errors . there is little to be found among the commentars and treatises upon the civil law , arguing from any known principles of right ; but all their debates is a congestion of the contexts of the law , which exceedingly nauseates delicate ingines , finding much more work for their memory , than judgement in taking up and retaining the lawgivers will , rather than searching into his reason ; yet there are not wanting of late of the learnedest lawers , who have thought it both feasible and fit , that the law should be formed as a rational discipline , and have much regrated that it hath not been effectuated ; yea , scarce attempted by any , as duarrenus , de ratione discendi docendique juris . and grotius in his prologues to his learned treatise , de jure belli & pacis , for which there are many peregnant reasons . first , as we have hinted before , equity or the law of nature , standeth wholly in these practical principles , which are created in , and with the soul of man , and arise in him without reasoning or debate , as naturally as the heat doth from the fire , or the light from the sun : and in these rules of righteousness , which are deduced thence by evident reason , so that law is reason it self , as it is versant about the rights of men , and therefore called the law of reason : and can there be any thing more congruous to a natural discipline , than reason it self , and its principles ? secondly , god in his goodness hath given man more radiant rays of reason , and preserved it more after his fall , about his rights , meum & tuum , than in any other science or knowledge , which for the most part are dubious and conjectural , and attainable only with great pains : but in the matters of right , a man of reason , though without education , if not blinded or byassed with affection or interest , or marred with the statutes and customes of men , which are but as their contracts and matters of fact to him , would be able to discern right from wrong , though he cannot be so distinct , as by reflecting on his own knowledge , to take up , and hold forth the grounds upon which he doth proceed , or to reach matters of intricacy or difficulty , which require 〈◊〉 judgement and long experience . thirdly 〈◊〉 expostulate and argue with men , even for moral duties , from their common principles of righteousness , which their conscience cannot reject , as is evident every where in his word ; and therefore , seing the law hath such principles , it may and ought to be held forth as it is deduced from them . as to the difficulties which seem to arise from the variety and multiplication of positive laws , it will say nothing ; for seing positive law is only to declare equity , or make it effectual , and in some cases to lay aside the effects of it , for the profite of man now in his lapsed estate , it may be easily ordered , by bringing it to the parts of equity , whereunto it doth relate ; and as a mans body may well be described , though it be not naked , and in its pure naturals , and have its hair cut and ordered , and ornaments upon it ; all which will fall to be described as appendicles , to the several parts of the body which they adorn : for , equity is the body of the law , and the statutes of men are but as the ornaments , and vestiture thereof ; and in the explanation of every part of it , it will most fitly fall in : but the best demonstration of this will be occular , by delineation of equity and positive law together . . the principles of law are such as are known without arguing , and to which the judgement upon apprehenosin thereof , will give its ready and full assent ; such as god is to be adorned and obeyed , parents to be obeyed and honoured , children to be loved and entertained ; and such are these common precepts which are set forth in the civil law , to live honestly , to wrong no man , and to give every man his right : but here we shall speak of the most general principles , which have influence upon all the rights of men , leaving the more particular ones to the rights flowing therefrom . the first principles of equity are these , that god is to be obeyed by man. . that man is a free creature , having power to dispose of himself and of all things , in so far as by his obedience to god he is not restrained . . that this freedom of man is in his own power , and may be restrained by his voluntar ingagements , which he is bound to fulfil , or take them up more summarly . the first principles of right are obedience , freedom and ingagement . there are also three prime principles of the positive law , whose aim and terest is the profite and utility of man , as the natural law is , in equo , so the positive law is , in bono , or utili ; and upon those two legs doth justice move , in giving every man his right : if man had not fallen , there had been no distinction betwixt bonum and equum ; nor had there been anything more profitable , than the full following of the natural law : but man being now depraved , and wanting justice , or that willingness to give every man his right , and apt to fraud or force ; therefore , in this estate it is profitable for him , to quite something of that which by equity is his due , for peace and quietness sake , rather than to use compulsion and quarrelling in all things , and to find out expedients , and helps to make equity effectual : and therefore , to make up societies of men , that they may mutually defend one another , and procure to one another their rights , and also to set clear limits to every mans property , and to maintain traffick and commerce among themselves and with others ; so that the three principles of positive law , may be society , property and commerce . the principles of equity are the efficient cause of rights and laws ; the principles of positive law , are the final causes or ends , for which laws are made , and rights constitute and ordered , and all of them may aim at the maintenance , flourishing and peace of society , the security of property , and the freedom of commerce , and so the narratives of statutes , do commonly bear the motives introductory , towards some of these heads . . obedience is that submission and sequacity of the mind and will of man , to the authority and will of his maker , immediately oblieging without any tye upon him by himself , intimate to him by the law of nature , light of reason , and the conscience , whereby man distinguisheth betwixt right and wrong , betwixt what is duty , and what is not duty ; hence do arise these obligations upon man , which are not by his own consent or ingagement , nor by the will of man , but by the will of god ; and therefore , these are fitly called obediential obligations . the first and most general of these , is , to love the lord our god with all our heart , and our neighbour as our selves ; upon which saith our saviour , hangeth all the law and the prophets , matth. . vers . . which is a clear demonstration from his mouth , of the dependence of the moral law , upon this principle : such are also the obligations betwixt husband and wife , parents and children , and the obligations of restitution , reparation , and remuneration ; in all which we are ingaged , not by our will and consent ; and such are the obligations , which the civilians call quasi ex contractu , because they find them obligatory , and yet not by contract , and not adverting this their rise from obedience , reduce them to contracts by a quast . . where obedience ends , there freedom begins , and man by nature is free in all things , where this obedience has not tyed him , until he obliege himself . it is a great mercy to man , that god hath oblieged him only in a few necessar moral duties , and has left him free in much more , without any tye upon him , as to the matter , but with a liberty , ad contradictoria , that he may do or not do ; and ad contraria , that he may do this or the contrair , providing that whatsoever he do ( even where he is free ) be ordered and directed to the glory of god. it hath been the opinion of some , both learned and pious , that there is nothing indifferent , in actu exercito ; or as it is invested with the circumstances , but that then every thing is a duty or a sin , and that because all things must be done to the glory of god , and to mutual edification , from whence there is no exception , and so are not free ; that we must make account of every idle word ; and that we are oblieged , to try all things , and to hold that which is best : these reasons indeed conclude , that there is nothing free , as to this contradiction , either to be done to the glory of god , or not , and to edification and use , or not ; but do not conclude that there is duty , or necessity in the matter of the action it self , of which , either part of the contradiction may be chosen , so that either part be useful and ordered to the glory of god , as saith the apostle , he that observeth a day , observeth it to the lord , and he that observeth not , doth so to the lord. and likewife in that undenyable instance of marriage , wherein the apostle debating of the conveniency to marry , or not to marry , doth conclude so , that he that marrieth doth well , but he that marrieth not doth better ; whereby both parts of the contradiction are approven ; and that which is less profitable , is said to be well done : therefore , there is a great difference betwixt duty which is necessar , and wherein we are oblieged , though we mistake or be wilfully ignorant by the very weight of the matter , and absoluteness of the command , wherein the ordering of what is forbidden to gods glory , will not justifie , as we may not do evil , that good may come of it ; as those who killed the apostles , were far from being justified , though they thought they did god good service thereby . these things are , bona honesta , & mala inhonesta ; but matters of expediency , are but bona utilia , or , mala inutilia , and not inhonesta ; and therefore , our duty in these , is that which we conceive most to be for the glory of god , and good of our selves and others ; but if we do mistake , and choose that which is less expedient for these ends , we are free . god seemeth to do with men , as princes do with their ambassadors , to whom they give some express instructions , wherein they have no latitude in their negotiations , and for the rest to do as they shall judge most fit upon the place , wherein , if acting bona fide , they mistake , and do not that which is most fit , they are not culpable . so man being sent into the world to behold the works of god , and to glorifie him , for doing whereof , he hath some rules written in his heart by the law of nature , and in the word of god , and for the rest , is allowed to do as he conceiveth most conducible thereto , that whether heeat , or drink , or whatsoever else he do , he do all to the glory of god. it were a sad rack to the consciences of men , if their errors and mistakes in the matters of expediency , were to lyeas a guilt upon their consciences , but that bona fides , or , conscientia illesa , so much spoken of in the law , is that which cleareth and acquitteth men in such mistakes . from this freedom doth arise , not only our personal freedom and liberty , whereby men are sui juris ; but also their power of the disposel of other things within their reach , or that dominion ( which god hath given them ) over the creatures . . as freedom began , where obedience ended ; so ingagement begins where freedom ends ; it being our voluntar oblieging of our selves , where by nature we are free ; every such obligation , is a diminution of that freedom , for thereby , we are either restrained from that power of disposel of the creatures , or may be constrained to some performances contrair to our natural liberty . some hold it not lawful for us , to give away our native freedoom , in whole , or in part , or to bind our selves where god has left us free , and that such ingagements , except where they are profitable for us , or for an equivalent cause , are not obligatory ; which shall be more proper to debate , when we come to the obligations by paction , promise , or contract , all which do arise from the principle of ingagement ; but it shall be sufficient here , to conclude with the law , that there is nothing more natural , than to stand to the faith of our pactions ; this much for the common principles of law. . as to the object thereof , the formal and proper objects of law , are the rights of men ; a right is a power given by the law , of disposing of things , or exacting from persons that which they are due ; this will be evident , if we consider the several kinds of rights , which are three , our personal liberty , dominion , and obligation ; personal liberty , is the power to dispose of our persons , and to live where , and as we please , except in so far , as by obedience , or ingagement we are bound : dominion is the power of disposal of the creatures in their substance , fruits and use : obligation is that which is correspondent to a personal right , which hath no proper name , as it is in the creditor , but hath the name of obligation , as it is in the debitor ; and it is nothing else but a legal tye , whereby the debitor may be compelled to pay , or perform something , to which he is bound , by obedience to god , or by his own consent and ingagement , unto which bond the correlate in the creditor is the power of exaction , whereby he may exact , obtain , or compel the debitor to pay or perform what is due , and this is called a personal right , as looking directly to the person oblieged ; but to things indirectly , as they belong to that person ; so dominion is called a real right , because it respecteth things directly ; but persons as they have medled with these things , by which it is clear , that all rights consist in a power or faculty , the act whereof is possession , injoyment , or use , which is a matter of fact , and no point of right , and which may be , where no right is , as right may be , where these are not . . the roman law taketh up for its object , persons , things and actions , and according to these , orders it self ; but these are only the extrinsick object and matter , about which , law and right are versant ; but the proper object is the right it self , whether it concerns persons , things , or actions , and according to the several rights , and their natural order , the order of 〈◊〉 , may be taken up in a threefold consideration ; first , in their constitution and nature . secondly , in their conveyance , or translation from one person to another , whether it be among the living , or from the dead . thirdly , in their cognition , which comprehends the tryal , decision and execution of every right , by the legal remeids , whereby the whole method may be clearly thus . first , of the nature of the several rights , and because liberty standeth in the midst , betwixt obligations of obedience , which are anterior , and of ingagements , which are posterior ; but both these being of the same nature , must be handled together ; and therefore liberty must have the first place ; and next , obligations obediential , and then conventional ; and after these , dominion in all its parts and in the second place , shall follow the conveyance of these several rights . and lastly , cognition of all the judicial process and executions : rights , in respect of the matter , are divided in publick and private rights ; publick rights , are these which concern the state of the common-wealth ; private rights , are the rights of persons and particular incorporations , of which , in their places . title ii. of liberty . . liberty described . . liberty distinct from dominion and obligations . . the principle whence liberty ariseth . . restraint and constraint . . liberty is bounded by obedience . . it is diminished by delinquence . . by ingagements . . by subjection . . liberty is lost by bondage . . bondage introduced by the law of nations . . bondage lawful . . manrent . . manumission . . patronage . . the condition of our servants . . injuries against liberty , how obviat . . liberty is that natural power which man hath of his own person , whence a free man is said to be suae potestatis , in his own power , and it is defined in the law , to be a natural faculty , to do that which every man pleaseth , unless he be hindred by law or force . . that there is such a right , distinct from the dominion of the creatures , and from obligation , it is evident from this , that it can be referred to none of these , and yet is the most native and delightful right of man , without which , he is capable of no other right ; so bondage exeemeth man from the account of persons , and brings him rather in among things , quae sunt in patrimonio nostro , and the incroachments upon , and injuries against the right of liberty , of all others , are the most bitter and attrocious ; for the non-performance of obligations , or duties to us , or the taking away , or detaining of the things of our property , are not to be compared with the laying violent hands on our persons . . this right ariseth from that principle of freedom , that man hath of himself , and of other things beside man , to do in relation thereto , as he pleaseth , except where he is tyed thereunto by his obedience or ingagement , and this part of it which concerneth personal freedom , is maintained by that common received principle in the law of nature , of self-defence and preservation , for as cicero saith in his oration , pro millone , haec & ratio doctis & necessitas barbaris , & mos gentibus , & feris natura ipsa prescripsit , ut omnem semper vim quacunque ope , a corpore , a capite , a vita sua pro pulsarint . and as saith gains , adver sus periculum naturalis ratio permittit se defendere , which is only to be extended to private and unlawful violence . . opposite unto liberty are restraint and constraint , restraint hindereth man to be where , and go whither he will ; and constraint forceth him to do what he will not ; restraint is exercised by imprisonment and captivity , or in the hinderance of the use of things necessar for life , as meat , drink , sleep , &c. constraint is exercised by beating , wounding , or the like force upon the body , or the fear of it , whereby any thing is extorted . . though liberty be the most precious right , yet it is not absolute , but limited ; first , by the will of god , and our obediential obligations to him , and to men by his ordinance ; and so though man hath power of his own person , yet hath he no power of his own life , or his members , to dispose of them at his pleasure , either by taking away of his life or amputation , or hurting of any member by himself , or by giving power to any other so to do , unless it be necessary for preserving the whole , but he is naturally oblieged to god to maintain his life : so likewise men may be restrained , or constrained by others , without incroachment upon the law of liberty , in the pursuance of other obediential obligations ; as a husband hath power to restrain his wife , from her liberty of going where she will , and may keep her within the bounds of conjugal society ; so may parents restrain their children , and also constrain them to the performance of moral duties , and that without any ingagement or law ; we may also without any injury , restrain a furious person , or one who is inferring violence to himself , in his life or limbs , because this is not against any act of his lawful liberty , and is done as a duty in us , of love and mercy : but in matters of utility and profite , where the natural liberty is not hemmed in with an obligation , there , unless by his own delinquence or consent , man cannot justly be restrained , much less constrained upon pretence of his utility or profite ; for liberty , as far preferable to profite , and in the matter of utility , every man is left to his own choice , and cannot without injury to god and man , be hindred to do what he pleaseth , or be compelled to do what he pleaseth not , in things wherein he is free , as grotius saith , de jure belli , lib. . cap. . pag. . non enim si quid alicui ntile est , id statim mihi licet , ei per vim imponere , nam his qui rationis , habent usum , libera esse debet utilium multilinimve electio , nisi alterijus quodam in eos quaesitum sit . . liberty may be diminished or taken away by our delinquence , in the way of punishment , for seing it is a right in our own power ; as goods and debts may be forfaulted by our delinquence , so may our liberty , in whole or in part . . thirdly , our ingagements do commonly import a diminution of our personal liberty , but much more , of that natural liberty of things without us ; whence it is that the law alloweth personal execution or restraint , and incarceration of the debitors person , until he do all the deeds that are in his power , for the satisafction of his creditor . . liberty is diminished by subjection unto authority ; for as man by nature is a free creature in his own power , he doth then become in the power of others ; whether it be in the power of a society , where the suffrage of the plurality is preferred to the natural and free choice of particular persons , or whether the authority be stated in a few persons , or in one soveraign ? . fifthly , liberty is wholly taken off by bondage , slavery , or servitude , which is diametrically opposite to liberty ; for as liberty is that power , by which men are sui juris , so by servitude , they became alieni juris , in the power of another , unto whom they became as the rest of their goods in their patrimony , and are possessed by them , and may be gifted , legated , sold , and otherways disposed of at their pleasure , l. . ff . de statu hominis , l. qui in servitute , ff . deregulis juris , so that masters had among the romans , and almost every where , power of life and death of their slaves , l. . ff . de his qui sunt sui vel alieni juris , though the constitutions of the emperors did restrain that power to moderate chastisement , as appears by the former law , § . . and next ensuing servants being wholly their masters , they could have nothing of their own , l. acquiritur de acquirendo rerum dominio ; so that their peculium , which their masters committed to them , to negotiat with , was wholly in their masters power , and might be taken away at his pleasure , l. . ff . de peculio , neither could they be lyable to any obligation , l. nec servus . ff . de peculio ; neither could there be any civil action for , or against them , l. in personam , ff . . de regulis juris , neither could they be witnesses , procuratoss , or arbiters , l. cum serv. ff . de regulis juris ; yea , and they were accounted as no body , or as dead men , l. . de reg. jur. l. . de testib . l. . cod. de judiciis , l. . de recep . qui arb . . bondage was introduced by the law of nations , and it is among the positive laws of nations , settled by common consuetude , and it took first place in the these who were taken in war , who being under the power of their enemies sword , did loss their liberty in lieu of their life ; such also were these , who sold their liberty , and gave it up , and were content to be perpetual slaves , as were the jewish bond-men , whose ears were pierced with an aul , as the solemnity of their perpetual and willing servitude , the offspring of servants remained in their servile condition ; and by the custome of nations , and the roman law , it followed the mother and not the father , partus sequitur ventrem , and in some cases , both by the judicial law , and the roman law , free parents might sell and give their children into bondage . . bondage , though contrair to the nature of liberty , yet it is lawful ; liberty being a right alienable , and in our disposel , so that the natural law constitutes us free , but puts no necessity on us , so to continue ; and therefore servitude is both approven in the old testament ; and in the new , it is cleared against that obvious objection , that being made free by christ , we should not become the servants of men , to which the apostle answereth , art thou called , being a servant ( or slave ) continue so , for nevertheless thou art christs freeman : but yet christian lenity and mercy , hath almost taken away bondage , except amongst the spaniards , portugals , and other christian nations , bordering upon the turks , where , because the turks do extreamly exercise slavery , especially upon christians , their neighbours do the like , that they may have slaves to exchange with slaves : little of slavery remains elsewhere among christians , except the ascriptitii , who are not absolutely slaves , but they and their posterity are bound to several services , to ferms and villages , to which , by reason thereof only , they are in bondage , and their masters cannot apply them to other ferms , or to other services , but those are fixed to , and follow those ferms , and they are conveyed therewith ; such are the english villains , but in scotland there is no such thing . . there was formerly a kind of bondage , called man-rent , whereby free persons became the men or followers of these who were their patrons and defenders , and these were rather in clientele , than in bondage , but it is utterly abolished , both by act of parliament , . cap. . and by custome . . from servitude arise manumission , and the right of patronage ; manumission is the dimission of servants , and the making of them libertines , whereby they become free , but with remaining thankfulness , reverence , and obsequiousness , and some other duties and offices , to their former masters , then become their patrons , and if in these they failed , they forefaulted their new acquired liberty , and returned to their former condition of servitude . . in these therefore , stood the right of patronage , and from this condition of libertines , arose that distinction of men , into these who were always free , who were called ingenui , and in these who were bound , who were called servi , and in these of a middle condition , who having been slaves , became free , and so were neither fully free , but had some duties lying upon them to their patrons , neither were fully bound as servants . . the servants which now retain that name , are judged free persons , and have at most but hired their labour and work to their masters for a time , which is a contract betwixt them ; of which afterward . . the customs of this nation have little peculiar , in relation to liberty directly , but the injuries done against the same , especially constraint , fall under the consideration of delinquencies , and are so punished . the romans had express laws , de libero homine exhibendo , and de privatis carceribus inhibendis , the english have their action of false imprisonment , determining with much exactness , in what cases imprisonment is lawful , and in what not , and how remeidable . it is also provided in the judicial law , against stealers of men ; but amongst us , as these crimes are very rare ; so , if unlawful restraint , or unjust imprisonment should fall out , it remains among delinquencies to be punished according to the circumstances and attrocity , and according to equity , and thence also a civil action for damnage and interest ariseth . title iii. of obligations . . personal rights and obligations described . . kinds of obligations . . obediential obligitions described . . divided . . enumerat . . obligations natural and civil . . obligations principal and accessory . . obligations pure , conditional , and to a day . rights personal , or obligations , being in nature and time , for the most part anterior to , and inductive of , rights 〈◊〉 of dominion and property , do therefore come under consideration next unto liberty . . the same right as it is in the creditor , it is called a personal right ; but as it is in the debitor , it is called an obligation , debt , or duty , which is retained as the more proper name , inst. de obligationibus in principio . obligation is a legal tye , by which we may be necessitate , or constrained to pay , or perform something ; this tye lyeth upon the debitor , and the power of making use of it , in the creditor , is the personal right it self , which is a power given by the law , to exact from persons that which they are due . . obligations by the romans , are distinguished in four kinds ; in obligations , ex contractu vel , quasi ex contractu maleficiovel , quasi ex malificio , which distinction insinuats no reason of the cause , or rise of these distinct obligations , which is requisite in a good distinct division ; and therefore , they may be more appositly divided , according to the principle , or original from whence they flow ; in obligations obediential and by ingagement , or natural and conventional , or by the will of god , and by the will of man. . obediential obligations are these , which are put upon men by the will of god , not by their own wills , and so are natural , as introduced by the law nature , before any addition made thereto by ingagement , are 〈◊〉 which we are bound to perform solely by our obedience to god , as conventional obligations are , such as we are bound by , and through our own will , ingagement or consent . . obediential obligations are either by the will of god immediatly , or by the mediation of some fact of ours ; such are obligations by delinquence , whereby we become bound to reparation and satisfaction to the party injured , and are lyable in punishment to god , which may be exacted by these who have his warrand for that effect ; of these obediential obligations , there be some which tye us to god alone , whereby there is no right constitute in man to exact the same as his own due , or any warrand or command given him by god to exact them on his behalf ; and some , though they constitute not a right in man , yet man is commanded and warranted to vindicate them ; as the crimes of witchcraft , blasphemy , beastiality and the like , for which there is an express command to inflict punishment , though there be no injury done therein to man , of which there could be any reparation ; for the command , thou shalt not suffer a witch to live , takes place , though the witch have committed no malifice against the life or goods of man : but these obligations being among the publick rights , belongs to the magistrate , on whom is devolved that authority , to vindicate for god , as his vicegerent : we shall not here insist on them , nor on these other obligations , whereby no right of execution is constitute in man for vindication , & quae solum deum habent ultorem , ( being only now about the private rights of men ) such are the love and fear we owe to god , and dependence on , and confidence in him . . we shall therefore insist only on the obediential obligations that are betwixt husband and wife , parents and children , tutors and pupils , curators and minors , and the obligations of restitution and remuneration , and the obligations of reparation of delinquence , and damnage , and then we shall proceed to conventional obligations . 〈◊〉 there is another distinction in the law of obligations , viz. natural and civil ; natural obligations are these , which have a tye by the law of nature , and do raise a right in the person to whom they relate ; but the civil law , or customs and constitutions of men , do not second them with legal remedies or executions , but they remain only as bonds upon the good . will and honesty of these who are thereby bound . first , there be many natural obligations which have no civil effect , either because they obliege to inward duties of the mind , which law doth not consider , as cicero saith , philosophum spectant quae mente tenentur , juridicum quae manu tenentur : or , secondly , because though they obliege to outward performances , yet the manner and measure is left to the discretion and arbitriment of the oblieged , as before hath been showen , though that in matters of expediency or utility , there be an obligation to do that which is most conducible to these common ends , to which we are oblieged , yet in the particulars , our acting , bonafide , makes us free : or , thirdly , because , though absolute obligationslye upon the oblieged , yet they relate to duties performable to god , whereof he hath given no power nor command to man ; that there be some such obligations that god hath authorized or commanded man to vindicate for him , and not all such , may be gathered from his own judicial law , in which many such are exprest , and many others omitted ; though these obligations be to duties relating to man , yet there is no correspondent right or power of compulsion in man , and so the creditor is god , and man is the third party , to whose behoove the obligation is imposed , but who hath neither power of exaction for himself , nor of vindication for god ; such are the obligations of beneficence , generally and particularly ; of charity to the poor , assistance to these in hazard , and relief of the oppressed ; for natural reason will teach us , that though these do naturally obliege us , yet they in whose favours they are , cannot compel us ; for example , we are bound is give alms to the poor , yet none will affirm , that the poor can extort it , or take it by force . it is true , that by the positive law of any nation , by their consociation together , there is in the very nature of the association , a duty of assistance for the common interest , into which they are associat ; but that is not a natural , but a voluntary obligation flowing from their voluntar association or union . likewise , all the people are bound to concur and assist legal executions , and in some places to contribute by such a proportion to the poor , but these are only positive laws , having the force and nature of contracts : legal compulsion is also laid aside in matters of smallest moment , and in some things of greater importance , wherein a way of procedor is prescribed , and as a penalty of none-observance of that order , legal remedies are denyed , when done any other way ; as naked pactions among the romans were ineffectual , because they did not interpose stipulation . and with us , agreements requiring write , are ineffectual , and may be resiled from , unless write be interposed ; and in most matters of importance , obligations with us are ineffectual , unless proven by oath of party , or write . civil obligations , are these which have a civil effect and execution , though perhaps they be not naturally oblieging ; as with us , an obligation in write , doth civilly obliege , and hath execution at the instance of the creditors heir , or assignay , though the debt was payed to the cedent , or defunct , because the debitor hath not been so cautious to keep a discharge in write ; but most part of obligations , are both natural and civil : there are many such particular obligations which will occur in their proper places . . there is a third distinction of obligations in principal and accessory , such are the cautionary obligations of surety and pledges , which are accessory to all other obligations . . the fourth distinction of obligations , is in these which are pure , conditional , and to a day : conditional obligations are such as do depend upon a condition , and so are but obligations in hope , till the condition be existent ; but obligations to a day , are such as are presently binding , but the effect , or execution thereof is suspended to a day , betwixt which , there is this main difference , that in conditional obligations , the condition must necessarily be uncertain , either as being in the power of mans will , or an accidential event : for if the condition be a thing certainly to come , though it may be conceived under the terms of a conditional obligation , yet it is indeed an obligation to a day , as if titius be oblieged to pay maevius ten crowns , if an eclipse shall be such a day ; upon which day , by the certain rules of astronomy , it is known that it is to be , though perhaps it was uncertain to both , or either party ; yet it is not a conditional obligation : but the time of the eclipse is the term thereof : so likewise , if the condition be impossible , de facto , or impossible , de jure , that is , unlawful , ( nam id possumus quod de jure possumus ) then , though the obligation be conceived in terms conditional ; yet because the condition is not depending , and in it self uncertain , the obligation is not truely conditional , but is void and elusory in the case of the legal impossibility of the condition ; and if it be in the power of the creditor , or any third party , so that it may be an occasion to move them to do wrong , the obligation is valide and pure , and the condition is void , as not adjected , nam conditio illicita , est quasi non adjecta ; hence it appears , that such obligations as are without conditions , are pure , and such are simple which are not clogged with the running of a course of time , the adjection whereof is always in favours of the debitor , as to the intervenient time ; and in this also , in favours of the creditor , that he needs use no interpellation , or requisition for performance , sed dies interpallat pro homine , and the day being past , the debitor is in mora ; but in simple obligations , delay is only upon demand , and whensoever it is required , upon non-performance , the debitor is in mora . obligations , ad diem incertum , are in effect conditioal , nam dies incertus , habetur pro conditione , as a sum payable at such an age , which is frequently in provisions of children , if they die before that age , the sum is not due to their representatives ; even after they might have attained that age , as was found , january , . . edgar contra edgar , february , . . belshes of toftes contra belches . a conditional obligation doth necessarily imply an uncertainty and dependence of the effect of the obligation , upon the existence of the condition ; for , if the condition fail , the obligation is void : and ofttimes , obligations are conceived in conditional terms , though in effect there be no uncertainty of the condition , as to the beeing thereof , though it may be uncertain , as to the contracters knowledge ; as in obligations where the condition is made of something past , or of something that cannot but come ; the coming whereof , is the term of performance , and not a condition , and it is an obligation to a day , and not conditional : as on the contrair , a conditional obligation may be , when it is not yet conceived in terms conditional , as when it is conceived to a day , if it be uncertain , whether by the course of nature that day will ever come , it is no term , but a condition . these uncertain conditions are of two kinds , voluntar , which depends upon the free choice of some persons ; and casual , which depends upon the casual event of that which cannot naturally be foreknown . amongst voluntar conditions , these are not to be numbred , which consist in the mutual obligations of the creditor , which he is positively oblieged to perform , and so are not looked on by the contracters , as an uncertain event in his choice ; and therefore , though frequently such obligations in mutual contracts , are conceived by way of provision or condition , and so may stop the effect , or execution of such obligations , till the creditors part be performed ; yet that is rather as the failzie , or delay of the mutual cause of the obligation , then as the non-existence of the condition : and therefore , such contracts may , and ordinarily do reserve execution , by poynding , and apprising , before the performance of these provisions ; which executions are not null , but will be preferred by their dates , to others proceeding upon pure obligations , or to a day , after the day is past , yea , the other creditors cannot object the non-implement of the provisions , except they had interest , in so far as the fulfilling thereof would be to their behoove ; which certainly they could do , if they were proper conditions , as they can do , when the condition is casual , or when it is voluntar , not being a part of the creditors mutual obliegement . in like manner , the end and intent of an obligation , or the manner of performance thereof , is ordinarily exprest as a condition , though these be not real conditions , rendering the obligation uncertain . a condition is ofttimes implyed in an obligation , though it be not exprest , as when a tocher is promised ; this tacit condition is implyed , if the marriage hold , and the condition may either be exprest , or implyed , as relating to the contracting , or to the performing of the obligation ; as if the debitor said , on such conditions i shall become oblieged ; which differeth from this , that i obliege my self to pay , or perform , when , or upon condition that such things shall exist ; for in this case there is a present contract , though the effect be uncertain : and therefore arrestment , and inhibition might be used thereupon : but in the former , the very ingagement is uncertain , as if one should promise to titius , if he maried maevia , that he should contract with him , for such a tocher , before such a marriage , contracted or solemnized , neither arrestment , nor inhibition would be granted thereupon . an offer hath the like implyed condition of the other parties acceptance , and in that it differs from an absolute promise ; so that if the acceptance be not adhibit presently , or within the time exprest in the offer ; in which the other party hath liberty to accept . there ariseth no obligation , as was found , june , . . alexander allan contra mr. john collier ; and in mutual contracts , the one party subscrybing , is not oblieged till the other subscribe , as being his acceptance : and a cautioner subscribing , is not oblieged , unless the principal party subscribe , that being implyed as a tacit contradiction of his being cautioner . title iv. conjugal obligations . . marriage a divine contract . . whereby marriage is formally constitute . . dissolution of marriage by death . . desertion and adherence . . jus mariti . . the husbands obligations . . the power of the husband by the civil law. . by the custome of neighbour-nations . . by the custome of scotland . . the wifes escheat . . the husbands concourse . . a wifes obligation null . . a communion of goods and debts . . donations betwixt man and wife revocable . . dissolution of marriage within the year . . divorce . . rights arising from the dissolution of marriage . . priviledges of wives . the first obligations god put upon man toward man , were the conjugal obligations , which arose from the constitution of marriage before the fall ; from whence have arisen , rights of the greatest consequence ; as of the husbands power over the wife , and her goods ; the mutual society of families , which is the only society immediatly institute of god , in the law of nature ; and from whence , is the power of parents over children ; and oeconomical government of families , which of all other is the most absolute , and full , extending not only to the determination of civil rights , but to the punishment of all crimes , till by the union of greater civil societies , many of these powers have been devolved upon the common authority of the societies ; and therefore , these obligations do deserve the first consideration . . though marriage seem to be a voluntar contract by ingagement , because the application of it is , and ought to be of the most free consent ; and because in matters circumstantial , it is voluntary , as in the succession of the issue , and the provision of the wife and children ; yet , that marriage it self and the obligations thence arising , are jure divino , it appears thus ; first , obligations arising from voluntar ingagement , take their rule and substance from the will of man , and may be framed and composed at his pleasure ; but so cannot marriage , wherein it is not in the power of the parties , though of common consent , to alter any substantial , as to make the marriage for a time , or take the power over the wife from the husband , and place it in her or any other ; or the right of provision or protection of the wife , from the husband , and so of all the rest ; which evidently demonstrateth , that it ●s not a humane , but a divine contract . . that marriage ariseth even from the primitive law of nature , and that as it is the conjunction of two single persons ; is evident not only from that natural affection , which all sorts of men in all places of the world ( where no common example nor consent can reach ) have unto a married estate . but as the lawers say , that it is founded in the common nature of man , with other creatures , who have a resemblance of it in themselves , and it is given for the very example of the natural law , as contradistinct from the law of reason , and law of nations ; for most part of the living creatures live and converse in pairs , and keep the common interest of their off-spring , as is clear in all fowles , whose wings have freed them from mans comptrol , and many of the beasts of the field : and it is like , all of them would be so inclined , if their natural liberty were not restrained by man , by pursuing such as are wild , and making use of the tame , as they may be most profitable , preserving most of the female for increase , and destroying the male. . the affection of the property and chastity of women , and animosity and jealousy that ariseth in men , naturally upon the breach thereof , doth evince , that by the law of nature , every man ought to content himself with his own wife , and women not be common : for as no man can indure the communication of his own , so it must necessarily follow , that he should not incroach upon others property : and seing nature holds not out a proportion betwixt the male and the female , whereby every man might appropriat more , it must therefore subsist in one ; and so was the first institution by god , and all the posterior directions in his word are for a man , and his wife , not his wives ; and as the man hath not power over his body , but the wife : so it were an absurd inconsistency , if that power were in many , and so behoved to resolve in a management by the common consent of the wives . . the degrees in which marriage is allowed or forbidden are , by divine institution ; for the next degree collateral , is only forbidden ; for of asscendents and descendents , there is properly no degree , the great grandmother , being in that regard as near as the mother ; and so the next collateral to all ascendents and descendents is in the same degree with brothers and sisters , and uncles and aunts , nephews and nieces , are alike in the propinquity of blood , with these , and the great grandmother's , sister , with the mothers sister ; else if these were different degrees , there would many degrees interveen betwixt a person and his great grand aunt ; but that there is a natural abhorrence of that promiscuous commixtion of blood , it is commonly acknowledged over all the world , as to all ascendents and descendents . and as to the next collaterals , the word of god cleareth it , not to have been a positive law given to the jews , but to have been a common law to the gentiles also : and therefore , lev. . where the degrees of marriage are exprest , and unlawful commixtion forbidden , it is subjoyned , v. , . defile not your selves in any of these things , for in all these the nations are defiled , which i cast out before you , and the land is defiled ; therefore do i visit the iniquity thereof upon it . but unless these degrees of prohibite marriage , were a part of the law of nature written in man's heart , or a common positive law known to the nations ; the lord , who hath declared that he will judge men by that law , which is known , would not so have judged the caananites . . the perpetuitie of marriage is also evident , by our saviour's sentence against arbitrary divorce , which was permitted by the law of moses , for the hardness of that peoples hearts ; but the lord cleareth up the ancient law of nature , from the beginning it was not so ; which sheweth the perpetuity of that law , and that it was before the judicial law ; and therefore he concludeth , that whosoever putteth away his wife , except for fornication , is an adulterer . . for understanding of these conjugal rights , it will be necessar , . to consider the constitution of marriage . . the dissolution of it . . the rights and interests thence arising : for the first ; marriage is defined by modestinus , to be the conjunction of man and woman , to be consorts for all their life , with a communication of rights divine and humane , l. . ff . de ritu . nuptiarum ; so the essence of it consists in the conjugal society ; the special nature of which society , appeareth by the state , interest , and terms that the married persons have thereby . it may be questioned , whether the conjunction wherein marriage consists , be a conjunction of mindes by mutual consent to the married state ; and that whether privatly or in the publick solemnity ; or whether rather it be , a conjunction or commixtion of bodies . for clearing whereof , consider , that it is not every consent to the married state that makes matrimony , but a consent de presenti , and not a promise de futuro matrimonio ; for this promise is only the espousals which are premised to marriage , and that so solemn an act might be with dew deliberation ; and therefore though as other promises and pactions , espousals be naturally obligatorie and effectual also by the canon law , whereby the espoused persons may be compelled to perfect the marriage , unless there arise some eminent discoverie of the corruption or pollution of either party , or defect or deformity , through sickness or some other accident . c. de literis extravag . de sponsalibus , & cap. . eodem , c. ult , de conjug . yet by the civil law , there is place for either party to repent and renunce the espousals , l. . cod. de sponsalibus , which is also the custom of this nation ; for marriage uses not to be pursued before solemnization , r● integris , so that the matter it self consists not in the promise , but in the present consent , whereby they accept each other as husband and wife ; whether that be by words expresly , or tacitly by marital cohabitation , or acknowledgment , or by natural commixtion where there hath been a promise or espousals proceeding ; for therein is presumed a conjugal consent de present● the publick solemnity is a matter of order , justly introduced by positive law , for the certainty ofso important a contract , but not essential to marriage : thence arises only the distinction of publick and solemn , privat or clandestine marriages , and though the contraveeners may be justly punished , ( as in some nations , by the exclusion of the issue of such marriages from succession ) yet the marriage cannot be declared void , and annulled ; and such exclusions seem very unequal against the innocent children , but by our custome , cohabitation , and being commonly repute man and wife , validats the marriage , and gives the wife right to her terce , who cannot be excluded therefrom , if she were reputed a lawful wife , and not questioned during the husbands life , till the contrary be clearly decerned , par. . cap. . so also , a contract of marriage was found valid , against the husbands heir , though the marriage was never solemnized in kirk nor congregation , hope . t. husband &c. william barklay contra anna naper . the like found to exclude the bastardy of the children , by the father and mothers , being repute married , and keeping house and society together , for several years ; nicolson , de agnoscendis liberis , brok contra but the contrair was found , where it was positively proven , that the defunct had another wife , ibid. archibald chirnside contra isobel grieve and john williamson . so likewise , in the former case , a contract of marriage was found valid , and the man thereby oblieged to solemnize the marriage , seing he had procreate children with the woman , and by his missives had acknowledged he had married her , though by a contract , posterior to the contract of marriage , she had renunced the same , nicol. de sponsalibus , barclay contra janet kelly ; but where a man by his write had acknowledged , that such a child was got under promise of marriage , and promised to solemnize the same , yet the lords , on the mans alledgance that the woman had born a child to another , and her answer , that it behoved to be presumed his , would not sustain that presumption , without instructing their conversing together , medio tempore , january . . christian barclay contra george baptie . it was also found lately relevant , for validating a contract of marriage , sixteen years cohabitation , and being repute man and wife , elizabeth grierson contra laird of craigdarroch . as to the other point , though the commixtion of bodies seem necessar for the constitution of affinity arising from marriage ; yet the opinion of the canon law is true , consensus , non coitus , facit matrimonium ; but this consent must specially relate to that conjunction of bodies , as being then in the consenters capacity , otherwise it is void ; so the consent of persons naturally impotent , or of dubious hermophradits , where the one sex doth not 〈◊〉 predomine , doth not make marriage , and the common essentials of consent , must also here be observed , so that , who cannot consent , cannot marry , as idiots and furious persons , neither they who have not the use of reason , as infants and those under age , who are not come to the use of diseretion , unless malitia suppleat aetatem , that is , when the person is within the years of pupillarity , commonly established in law , to be fourteen in males , and twelve in females ; yet seing marriage is an obligation natural , and not annullable by positive law ; as to it , regard must be rather had , whether the parties be truely come to discretion and capacity , whereof commixtion of bodies is sufficient evidence : and this also is the sentence of the canon law , de illic . cap. . ult . de spons . errors also in the substantials , make void the consent , unless future consent superveen , as it did in jacob , who supposed that he had married , and received rachel , but by mistake got leah ; yet was content to retain her , and serve for the other also . but errors in qualities , or circumstances vitiat not , as if one supposing he had married a maid , or a chast woman , had married a whore ; so then , it is not the consent of marriage , as it relateth to the procreation of children that is requisite , for it may consist , though the woman be far beyond that date ; but it is the consent , whereby ariseth that conjugal society , which may have the conjunction of bodies as well as of minds , as the general end of the institution of marriage , is the solace and satisfaction of man , for the lord saw that it was not fit for him to be done , and therefore made him a help meet for him : yet though this capacity should never be actuat , as it persons , both capable , should after marriage live together , and it should be known or acknowledged , that all their lives they did abstain , yet were the marriage 〈◊〉 , as to the conjugal rights on either paart . if it be asked , whether the consent of parents be essential to marriage ? the common sentence will resolve it , multa impediunt matrimonium contrahendum , quae non dirimunt contractum , so that consent is necessary , necessitate praecepti , sed non necessitate medii ; though by humane constitution , such marriages may be disalowed , and the issue repute as unlawful , but the marriage cannot be annulled , l. . de stat . hom . l. § . . de adult , by which laws , not only the issue of such marriages are excluded from succession , but the marriage it self insinuat to be null , which humane constitutions cannot reach , though the magistrate or minister , celebrator of the marriage , may refuse to proceed without consent of the parents ; as by the law and custom of holland , art. . ord. pol. it is statute , that before the celebration of marriage , there be three proclamations in the church , or in the court ; and that where the parties are minor , they be not married without consent of their parents ; and where they are both major , intimation must be made to the parents , and if they appear not , their consent is presumed ; and if they do appear and dissent , they must condescend upon the reasons , that it may be cognosced whether they be sufficient or not : and if the marriage do otherwayes proceed , they account it null . marriage is also void and inconsistent , when contracted within the degrees prescribed levit. . whereby the next degree collateral is only prohibit , both in consanguinity and affinity , which makes those joyned in affinity , in the same degree , as being by marriage one flesh ; neither can marriage consist where either party is married before : but the exclusion of further degrees by the canon law , as of cousin-germans , or of certain degrees in affinity ecclsieastick ; or the prohibiting marriage to these in sacris , are there unlawful devices , which cannot alter this divine contract , but become a cheat , putting parties in the pop's power , to approve or disapprove as his avarice or interest leads : neither do the civil constitutions of princes , annul or dissolve marriage , whatever they may work as to the interest of the married persons , or their succession , as were the prohibitions of marriage , between those of consular dignity , and plebeian persons , between tuttors and their children , and pupils : yea , between jews and christians , for diversity of religion cannot annul it . . the dissolution of marriage is only natural by death , adultery , and desertion , do not annul the marriage , but are just occasions upon which the persons injured may annul it , and be free ; otherwayes if they please to continue , the marriage remains valid . all do agree , that adultery hath some effect upon marriage ; the canon law doth not thereupon dissolve it , that the party injured may be free to marry again , but only granteth separation . but our saviour's precept cleareth the contrary ; who in relation to the custom that then was of divorce for light causes , resolves , that puting away was not lawful , except in the cases of adultery , and so in that case approves the divorce even as then used , matth. . v. . it may be doubted , whether the adulterer , after the dissolution of the marriage upon his default may marry again : but though positive law , as a penalty upon adulterers , may hinder their marriage with the adulteress or otherwise declare such marriages , as to succession and civil effects , void ; yet , can it not simply annul it ; and as to any other person they may marry . with us , marriage betwixt the two committers of adultery , is declared null , and the issue inhabilitat to succeed to their parents , parl. . cap. . but otherwise , the person guilty may again marry . the second ground of dissolution of marriage , is , wilful desertion , which is grounded upon the answer of the apostle , cor. . . concerning the marriages of christians with infidels , which he declares valide , unless the unbeliever depart ; in which case , he declares , the christian not to be under bondage , which cannot have any speciality to the party deserted , as a christian ; and therefore , must infer a general rule , that all married persons , wilfully deserted , are free ; but this seems inconsistent with christs resolution , making adultery the only exception , which is easily cleared , by adverting , that christs determination is not general of the dissolution of marriage , but of putting away by divorce ; and so concludes no more , but that the putting away of the wife is unlawful , unless for adultery , but the wilful deserter is not put away , but goeth wilfully away ; yet whether the person deserted , or put away , be simply free by the dissolution of the marriage , or only freed from the bondage of adherence , is not clear from that text , cor. . . for from matth. . . and . . luke . . it would appear , that by desertion , the marriage is not dissolved , and that the person deserted may not marry again , because it is said , that whosoever marries her that is put away ( or deserted ) committeth adultery . by the law of scotland , dissolution of marriage for non-adherence , or wilful desertion , is expresly ordered , parl. . cap. . that the deserter , after four years wilful desertion , without a reasonable cause , must be first pursued and decerned to adhere , and being thereupon denunced , and also , by the church excommunicate , the commissaries are warranded to proceed to divorce ; but the absence will not be accounted a wilful desertion , if he be following any lawful imployment abroad , and content to accept and intertain his wife , for she is oblieged to follow him . . the rights arising from marriage , are the jus mariti , or conjugal power of the husband over the wife , her person and goods , and therewith by consequence , the obliegement for her debts . . his power , and the wifes security , whereby , during the marriage she cannot obliege her self . . the husbands obliegement to intertain the wife , and provide for her after his death , and her interest in the goods . jus mariti , as a term in our law , doth signifie the right that the husband hath in the wifes goods , yet it may well be extended to the power he hath over her person , which stands in that oeconomical power and authority , whereby the husband is lord , head and ruler over the wife , by the express ordinance of god , gen. . . where the lord says to eve , thy desire shall be towards thy husband , and he shall rule over thee ; which , though it may seem as a penalty imposed upon her , for being first in the transgression , and so not to be of the natural or moral law , which is perpetual ; yet it is no more than a consequence of the moral law , whereby marriage being institute before the fall , the woman was made for the man , and not the man for the woman : and therefore , in that conjugal society , being but of two , the determination of things indifferent , of their interest , behooved to be in the man , and he to have in so far the precedency and government of the wife ; but when through the fall , the greatest measure of infirmity besel her , as being first in the transgression , whereby she became the weaker vessel : there was need , not only of a determination in things free , but an exaction of duties , whereinto she became less knowing and willing : therefore , from that consequence , and not by any new imposition , the man became to have dominion over her , and power to make her do these duties , which in her innocency , she would have done of her own accord . this power oeconomical , as hath been said before , did naturally comprehend all authority , till most of it was devolved upon magistracy , yet by this power the husband may still contain the wife within the compass of the conjugal society , and her abode and domicile followeth his , and he hath right to recover her person from any that would withdraw , or withhold her from him , except in the case of an allowed separation , for his injuries and attrocities , whereby she might not be with him in security and safety . from this power the husband hath over the wifes person , and conjugal society involved in the nature of marriage , arises the husbands power and right to the goods of the wife , whereby , according to the nature of society , there is a community of goods betwixt the married persons ; which society , having no determinate proportion in it , doth resolve into an equality ; but so , that through the husbands oeconomical power of government , the administration , during the marriage , of the whole , is alone in the husband , whereby he having the sole administration and unaccountable , his power may rather seem to be a power of property , having indeed all the effects of property , during the conjugal society , yet is no more than is exprest . this right of the husband in the goods of the wife , is so great , that hardly can it be avoided by the pactions of parties , whereby if any thing be reserved to the wife , during the marriage , to be peculiar and proper to her , excluding the jus mariti : yet the very right of reservation becoming the husbands , jure mariti , makes it elusory and ineffectual , as always running back upon the husband himself , as water thrown upon an higher ground , doth ever return ; and therefore a wife , before her contract of marriage , having disponed a part of her joynture , and taken a back-bond for imploying of it for the use of her future spouse and family joyntly , though the husband by his contract of marriage , renunced his right thereto ; yet he was found to have the power to mannage it , to the use of the family , february the . . lord collingtoun and ratho contra tennants of innerteil , and lady collingtoun , nevertheless by private pactions , the interest and division of the goods of married persons , after the dissolution of the marriage , may be according to their pleasure , as they agree : and alimentary provisions , in case of necessary separation , are so personal to the wife , that inhaerent ossibus , and recur not to the husband or his creditors . besides the obligations of the married persons , which are naturally in the minds and affections of each to other , there is outwardly the obligation of co-habitation , or adherence , of which formerly ; and the obligation of the husband to aliment , and provide for the wife in all necessars , for her life , health and ornament , according to their means and quality , to which he is naturally bound , though he had no means , but were to acquire the same , for he that provides not for his own family , is worse than an infidel ; yet the civil effect thereof , is only to give aliment and intertainment , according to the mans means and quality , and so he is civilly bound , quoad potest ; hence it is , that the aliment , or furnishing of the wife , is a debt of her husbands , not only for what is furnished by merchants and others , hoc nomine , in the husbands life , but even her mournings after his death , if it be proper for her quality to have mournings , burden the executors of the husband , and not the wife , november . . lady kirkaffie contra cornelius neilson . july . . agnes wilkie contra christian morison . jus mariti , is a legal assignation to the wifes moveable rights , needing no other intimation , but the marriage , and is preferable to any voluntar right , prior to the marriage , if not intimate before the marriage , december . . john achinlek contra mary williamson and patrick gillespie . the roman law hath exceedingly varied in this matter from the natural law ; for with them , the wife was not in potestate viri , but either in potestate patris , or , sui juris , and her goods remained fully her own , unless they had been constitute by her in a tocher , of which the husband had the administration and profit , during the marriage , ad sustinenda onera matrimonii ; and in which , after dissolution of marriage , he had no interest , except by paction , de lucranda dote ; and for security whereof , the wife had donationes propter nuptias equivalent , only in dote estimata , the husband had power to dispose of the tocher , for the value to which it was estimate ; all the other goods of the wife were paraphernalia , whereof she had the sole power and right . the customs of most nations , even where the roman law hath much weight , in this matter have returned to the natural course , as is observed by cassaneus , ad consuetudines burgundiae , tit . . and duarenus , tit . ff . de nupt . in relation to the custome of france , wessenbecius , in parat . ad tit . ff . de ritu nuptiarum . and covaruvias , epitt. lib. . decretal . part . . cap. . in reference to the customs of the germans , spaniards , and most part of the nations of europe ; gudelinus , de jure noviss . sheweth the same to be the custome of the netherlands , in which , they do almost in every thing agree with our customs , to which we return . by the custome of scotland , the wife is in the power of the husband ; and therefore , first , the husband is tutor and curator to his wife , and during her minority , no other tutor or curator need to be conveened , or concur to authorize ; so it was decided , french contra french and cranstoun , hop . tit . de minoribus : but on the contrair , the wife is in no case conveenable , without calling the husband ; and though she be married , during the dependance , the husband must be cited upon supplication , and the process continued against him , for his interest ; spots . husband and wife , margaeret bailie contra janet robertson . and likewise , a wife being charged upon her bond , given before marriage , but the letters not being raised against her husband , for his interest , they were found null by way of exception , nic. reverentia maritalis , relict of robert young contra wachup . yet a wife was found con veenable , without calling the husband , he being twenty years out of the countrey , and she repute widow , june . . euphan hay contra elizabeth corstorphin . yea , a wifes escheat , or liferent , falls not upon any horning execute against her , during the marriage , because , being then under the power of her husband , she hath no power of her self to pursue , suspend , or relaxe , dury , february . . stuart contra banner man , and this was found , though the decreet was an ejection committed , both by man and wife ; yet where the horning is upon a deed proper to the wife , as to divide the conjunct-fee lands , horning is valide , nic. reverentia maritalis , duff contra edmonstoun , or where the horning was upon a delinquence , as on laborrows , hope , husband and wife , lord roxburgh contra lady orknay . in like manner , a wife cannot pursue or charge , without concourse of her husband , and so letters not raised at his instance , were reduced , though he concurred thereafter , dury , july . . robert hay contra mr. john rollo . the like spots . husband and wife , napeir contra mr. robert kinloch , and agnes lial . the like in a reduction of an heritable right , done by the wifes father on death bed , which was not sustained , unless the husband had concurred , or had been called ; in which case , if he refused concourse without just reason , the lords would authorize the wife to insist . july , . . christian hacket contra gordoun of chapeltoun . but we must except from this rule if the husband were inhabilitat , or forefaulted . had. the . of march . william hamiltoun contra stuart , or the wife authorized by the lords upon special consideration , the husband refusing to concur , dury , the . of january . marshel contra marshel : or that she were pursuing her husband himself , against whom , ordinarily she hath no action , except in singular cases , ut si vergat ad inopiam ; or in case he had diverted from her , dury , december . . lady foules contra her husband : or if a wife with concourse of her friends , at whose instance , execution was provided by her contract , were pursuing reduction of a deed done by her husband , in prejudice thereof , during her life . february , . . lockie contra patoun : or that the obligation in its own nature , require execution in the husbands life , as an obliegement to infeft the wife in particular lands ; but if it be a general obliegement , to imploy money for her , or to infeft her , &c. which the husband may at any time of his life perform : the wife will have no action against him , neither will she get inhibition upon supplication , unless the lords grant the same upon knowledge , that the husband is becoming in a worse condition , or that the wife hath quite a present infeftment for an obligation of an other ; in which case , the lords granted inhibition , july , . . lady glenbervy contra her husband . this delay , where a term is not exprest , is upon consideration of merchants , who ordinarily having no other means , than the stock with which they trade , it would ruine them if they were necessitate to imploy it on security , so soon as they are married . it is a priviledge of women amongst the romans , per senatus consultum velleianum , that the obligations by which they became surety , or interceeded for others , were void . but our custome hath inlarged that priviledge so far , that a wifes obligation for debt , or personal obliegement , contracted during the marriage , is null , even though the bond were granted by her , and her husband containing an obliegement to infeft the creditor , in an annualrent out of their lands ; and in this case the bond as to the wife , and an apprising thereon , as to her life-rent of these lands was found null ; but here there was no special obliegement of annualrent , or wodset of the wifes life rent lands , but generally out of both their lands . dury , march , . . greenlaw contra gulloway . the like , hope , husband and wife , archibald douglas of tofts contra mr. robert elphingstoun , and susanna hamiltoun . the like , dury , january , . . mitchelson contra moubray ; in which case , the bond being granted by the man and wife , and thereupon apprising deduced , though she did judicially ratifie it upon oath , never to come in the contrair : yet the bond and infeftment , as to her life-rent , was found null , seing there was nothing to instruct her ratification , but the act of an inferiour court , whereof the warrand was not produced . but a wifes obligation with her husband , conjunctly and severally , oblieging them to pay , and also to infeft in an annualrent , out of either of their lands , found null , as to the wife in the obliegement to pay , but not as to the obliegement to infeft , december , . . master john ellies contra keith . neither was a wife found lyable for furnishing to the house in her husbands absence furth of the countrey , which did only affect her husband , spots . husband and wife , john loury contra lady louristoun . the like , january , . . porter contra law. the like , though the cause of the bond was money , advanced for the wifes necessar aliment ; for which , no process was granted against her , till her husband was first discussed , december . . . mr. david artoun contra lady hackertoun : and also a wifes obligation , without consent of her husband , found not to affect her but him , though she was not , praeposita negotiis ; but because she was persona illustris , and her husband out of the countrey , hope , husband and wife . mr. david russel contra earl of argyle : but a wifes bond for necessar habiliments for her body , found to obliege her self , and not her husbands executors ; and as to these , she may contract , had. july , . . eustacius wise contra lady hallyrudhouse ; this must be understood , where the wife has an aliment constitute by her husband , or other right exempt from his jus mariti . and it was so lately found , in the case of adam garrns merchant contra elizabeth arthur , december , . . february , . . john neilson contra arthur . but a wifes account of furniture to her person , not being great , found valide against her husband , being subscribed by the wife , though she was minor , being persona illustris , february , . . andrew littlejohn contra duke and dutchess of munmouth . this priviledge of wives was extended to obligations , or dispositions made by the wife , though before compleating of the marriage , being after contract and proclamation , whereupon marriage followed , january , . . 〈◊〉 contra brown. the like specially where the proclamation was not only at the husbands paroch church , but the wifes , july , . stewart contra aitkin . the like of a disposition in favours of the wifes children , after their contract and one proclamation , july , . . fletcher in dundee contra brown. yet wives obligations relating to their delinquence , are not void , but only such as relate to their contracting . so a wife was found oblieged to fulfil an act of a kirk session , under a penalty that she should forbear an other mans company , which was found , not to affect her husbands goods , but her own , hope , husband and wife , john bell contra executors of james hogg and the kirk session of st. cuthberts . here also are excepted , obliegements relating to dispositions of lands , annualrents or liferents , of which hereafter . . as to the husband and wifes interest in their goods , by our custome , without any voluntar contract , there arises betwixt them a communion of all moveables , except the habiliments and ornaments of the wifes body , which though they be superfluous , and the husband insolvent , are not arrestable for his debts : the husband hath the full and sole administration of all moveable goods , belonging or accressing to the wife , during the marriage , and the rents and profits of heretable rights , as being moveable : and therefore , an heretable bond , found to belong to the husband , jure mariti , because he was married before the term of whitsonday , at which time it was payable , june , . . nicolson contra lyell ; and a sum was found to belong to the executors of the first husband , though the term of payment was after his decease , and not to the wife , or her second husband . also , a legacy left to a wife , was found to belong to her husband , hope , legacies , elizabeth brown contra 〈◊〉 . likewise , a husband found to have right to a bond , blank in the creditors name , which the wife , during the marriage , put in the hands of a third party , who filled up his own name therein , though the husband and wife were voluntarly separate , february , . . drummond , contra captain rollo , except aliments duely and competently provided for the wife , which are not arrestable for the husbands debt , november , . . thomas edmonstoun contra christian kirkaldie , and alexander barclay . the like of an aliment modified by decreet arbitral , betwixt the husband and a third party , though the cause thereof was founded upon the husbands right , march . . westnisbit contra morison ; yea , the husband himself found to have no access to a sum provided to a wife by her father for her aliment , july . . tennant contra 〈◊〉 . this communion of goods , by our custome , extendeth not to the wifes rights heretable , as lands , annualrents , heretable bonds , nor to liferents ; for as to these , the wife may obliege her self personally in clauses , relative to such rights , as clauses to infeft , clauses of warrandioe , and clauses of requisition of sums , for which her lands were wodset by her , if the wife be first , and principally bound with consent of her huaband : but where the wife and husband were bound for infeftment , in lands belonging to the wife , and both bound in the requisition , yet thereby the wife was not found oblieged , either for granting the infeftment or in the requisition , because it appeared that the money was not borrowed for the wifes use , december . . mathie contra sibbald , other ways such obliegements are effectual against the wife . the like , hope , annualrent , agnes 〈◊〉 contra james 〈◊〉 , where a wife was found lyable to pay an annualrent , disponed by her and her husband out of her 〈◊〉 - fee-lands , even during the time they were in ward . the like of an annualrent disponed by a wife and her husband , for which both were personally oblieged , in respect she lifted the rents of the lands , out of which it was to be uplifted . spots . husband and wife , walter 〈◊〉 contra margaret chisholm . the like of a clause of requisition , in a contract of wodset , granted by the wife upon her lands , stante matrimonia , hope , husband and wife , agnes gordon contra elizabeth gordon . and this is the difference betwixt these and other personal obliegements of the wife , stante matrimonio , which even though the husband consent , are 〈◊〉 and obliege her not : yea , a renunciation of a tenement by a wife , without consent of her husband , being absent , though he ratified it at his return , was found null , spots . husband and wife helen melvil contra so that the husbands right , jure mariti , to the rents and annualrents of the wifes rights , which are not alimentary , cannot be evacuate without the husbands consent , though the wife may dispose of the right it self to take effect after the dissolution of the marriage . in heretable rights of wives , bonds bearing annualrent , though without a clause of infeftment , are comprehended ; for these remain heretable , 〈◊〉 〈◊〉 & relictum , by the act of parliament , . cap. . and therefore , a provision by a father to his daughter , bearing annualrent , five per cent , found not to fall under the husbands 〈◊〉 mariti , june . . james 〈◊〉 against 〈◊〉 edgar , july . . john 〈◊〉 contra bruce . the marriage without any contract , is a legal assignation to the rents and profits of the wifes lands , and other heretable rights , during the marriage : so that without his consent , the wife cannot alter the condition thereof , in prejudice of his right , during the marriage . jus mariti is so effectual , as to the moveable goods of the wife , that though a life-renter in her second contract of marriage , reserved a part of her life-rent lands , to be solely at her own disposel , and that the husband in the same contract of marriage , renounced his jus mariti thereanent , yet that renunciation was found to be his jur. mariti ; and so the profits of her life-rent were affected by his creditors , it not being constitute as a formal and a proportional aliment , as was found in the case of the creditors of mr. andrew hamiltoun , contra lady carberry his wife . from this communion of goods , it follows also , that there is a communion of debts , whereby the husband is lyable for the wifes debt , though it should both exceed her and his moveables , and the profit of the wifes land , or of her other heretable rights ; but this was not found to hold in matter of wrong , or criminal things ; and so the husband found not lyable for a spuilzie , or wrongous intromission committed by his wife , without his knowledge or approbation , during the marriage , february . . scot contra katharine banks and james neil . the same is observed by spots , husband and wife , inter eosdem ; these were done , stante matrimonio , without the husbands consent : and yet the husband found lyable for the damnage of a milne demolished by his wife , as praeposita negotiis ; and by his domestick servants , though he was out of the countrey , spots , husband and wife , laird ludqhairn contra earl of marishal . neither was a husband found lyable for the penalty of the contraveening the act of a kirk session , ut supra . a husband found lyable for his interest , for his wifes tutor compts , not only what she was lyable for , during her widouity , but during the time of a former husband , his successor being always first discust , as to what was 〈◊〉 in his time , march . . mathison contra waristonn ; yea , without the discussing of the successors of the first husband , primo loco , where the intromission was before both marriages , but prejudice to the defender , to pursue the heirs of the first husband as accords , february . . dumbar of hemprig contra lord frazer . but a husband was not found lyable for furniture , given by merchants to his wife , without his consent , she having gone to london without his warrand , except in so far as her ordinar expenses would have amounted to ; if she had stayed at home , though her husband had not inhibite her , july . . john allan contra earl and countess of southesk . after inhibition against wives , the husband is not lyable for any thing they contract , except what is furnished suitable to their quality , and where the husband cannot instruct that he sufficiently provided his wife otherwayes , july the . . 〈◊〉 campbel contra laird of abden . the like was found at the same time , concerning the furniture of the lady monteith . but this obliegement of the husbands being only for his interest , 〈◊〉 mariti , the debt it self doth not properly become his ; but only it may take effect against his person and goods , during the marriage : but if that interest were dissolved by his own , or his wifes death , there will be no farther process against him , or his heirs , nic. de reverentia maritali , campbel contra dumbar . and though there was , litis contestation , before the wifes death , the husband was found free ; 〈◊〉 he was ordained by interloqutor , to find caution , to pay what should be decerned , july . . dumbar of hemprig contra lord frazer . so likeways , a husband decerned with his wife for his interest , she dying before execution , he was free of the debt , december . . dam rachel burnet contra lepers . the like , where the husband was holden as confest , upon refusing to give his oath of calumny , february . . george graham contra grizel touris , and kelhead her husband : so likewise , a husband decerned with his wife for his interest , having died before execution , his successors were found free of thedebt , hope , transferring , francis kinloch contra dumbar : but the contrair was found , where the husband was denunced upon the decreet , and had sold his wifes portion of land ; ibidem , earl of murray contra lord st. colmb . the like , where the decreet against the husband , after his wifes decease , was only found effectual , in so far as might extend to his wifes third part of his moveables , february . . brown contra dalmahoy . and a husband was found lyable for his wifes debt , after her death , in so far as might be extended to the benefit of her life-rent duties , resting at her death , february . . sir james cuninghame against thomas dalmahoy . and the husband is always lyable for his wifes debt , even after her death , in quantum est lucratus , which cannot be understood to be by every benefit , or tocher , marriage being an onerous contract , where a tocher is given , ad sustinenda onera matrimonii , and for the wifes provision by law or paction , after the mans death : and therefore , he can only be accounted , lucratus , when the benefit he hath by his wife , doth far exceed these , onera , december . . dam rachel burnet against lepers . and even in case he be lucratus , the wifes heretage must be first discust , january . . agnes wilkie contra stuart and morison . a husband being charged summarily for his interest , upon a decreet obtained against his wife , before the marriage , and denunced thereupon ; yet not being undertaken by him , or affecting his goods before his death , he was liberat , march . . knowes contra kneiland . the like , though not only horning was used against the husband , but arrestment thereupon , january . . agnes wilkie contra stuart and morison . but a husband having given bond of borrowed money for his wifes furniture , was found lyable therefore after her death , july . . slowan contra lord bargainie . but that the husbands lands , or here table rights , will be lyable for his wifes debt , there is neither decision nor ground for it ; these not being in communione bonorum . it is more dubious , and for any thing i know , undecided , whether the heritable debt of the wife will affect the husband , quoad mobilia ; but seing it is a communion of goods only moveable , it should be also of debts moveable , though in communi forma , as tutors or curators . so husbands will be decerned generally for their interest ; yet with this difference , that tutors and curators will be lyable , in so far as they have the pupils means . but i never heard that there was distinctions , whether the wifes debt did exceed the third part of the mans moveables , which is her proportion of the same ; but indefinitely , it hatheffect against the husbands person by caption , or his 〈◊〉 by poynding . but a wifes heretable bonds , become not her husbands , though uplifted by her , or made moveable by a charge , during the marriage , seing she then re-imployed the money for annualrent , february 〈◊〉 . . alexander cockburn contra george burn. . these are the interests of the man and wife , during the marriage ; but before we come to their interests , after the dissolution thereof , it is to be considered , that by our customes , donations between man and wife , stante matrimonio , are revocable by the giver , during life ; which our custome hath taken from the civil law , where this reason is rendered , ne unituo amore se spolient ; thus a donation betwixt a man and his wife , was found anulled by the husbands revocation upon death-bed , subscribed by nottars , because of his infirmity , hope , husband and wife , earl of angus contra countess of angus . and a husband was allowed to recall a bond granted to his wife , bearing , that he thought it convenient , that they should live a part ; and therefore oblieged him to pay a sum yearly for her aliment ; albeit it bore also , that he should never quarrel , or recal the same , as importing a renunciation of that priviledge , february . . livingstoun contra beg. yea , a donation by a husband to his wife , was found revocked by a posterior right to his children , though it was not a pure donation , but in lieu of another right , and quoad excessum only , seing it was notabilis excessus november . . children of wolmet against lady wolmet . and un infeftment , bearing lands and a miln , was found revockable , as to the miln , it not being exprest in the wifes contract , february . . countess of home contra hog : this was extended to a wifes accepting of an infe ftment in satisfaction of her contract , february . . relict of george morison contra his heir . it is also revockable , indirectly by the husbands posterior disposition of the lands , formerly disponed to his wife , in life-rent , july . . john murray of lochmaiben contra scot of hayning . a donation by infeftment , granted by a man to his wife , beside her contract , found revocked by an annualrent out of these lands , granted to his daughter , pro tanto , without mention of revocation , december . . mr. robert kinloch contra raith . it was also found effectually revocked , by the husbands submitting of the right of the land , wherein he had formerly gifted a life-rent to his wife , and a decreet arbitral , adjudging the same to another , nic. de donat. inter virum & uxorem ; viscount of annandail contra scot. but donations by a man to his wife , who had no former provision , nor contract of marriage , found not revockable , being in satisfaction of the terce , due by the marriage , march . . laird of louristoun contra lady dunipace . the like , november . . . margaret mcgill contra ruthven of gairn . but where the husband granted infeftment of all that he then had , there being no contract of marriage , and thereafter , a second infeftment , both stante matrimonio ; the first was sustained , being in place of a contract of marriage ; but the second was found revockable , . of november . . halyburtoun contra porteous . and a provision to a wife , having no contract of marriage , was found revockable , in so far as it exceeded a provision suitable to the parties , . of july . short and burnet contra murrays . yet the want of a contract did not sustain a donation by a wife to her husband , to whom she assigned an heretable bond , the husband being naturally oblieged to provide for his wife , and not the wife for her husband , december . . inglis of east-shield against lowry of blackwood . and an assignation to an heritable bond , by a wife to a third party , but to the husbands behoove , found revockable by the wife , after the husbands death , even against the husbands singular successor , for causes onerous , the trust being proven by write , june . . margaret pearson contra mclane . yea a donation by a wife , by assignation of her former joynture , to her husbands behoove , found revockable , though there was no contract , unless the husband had given a remuneratory provision , january . . janet watson contra bruce . and a wifes consent to a contract of wodset of her life-rent lands , with a back-tack to the husband , only found valid as to the creditor , but revockable as to the husband , in relation to the back-tack , declaring the same to belong to her for her life-rent use , that she might injoy the superplus more than the annualrent , june . . arnot contra buta donation by a husband to his wifes children of a former marriage , was not found revockable , though done at his wifes desire , january . . hamiltoun contra banes. nor by a wife subscribing her husbands testament , by which her life-rent lands were provided to her daughter , july . . marjory murray contra isobel murray . such donations are also annulled by the wifes adultery and divorce . as all donations are revockable for ingratitude , hope , donatio inter virum & uxorem , margaret dowglas contra aitoun . a bond conceived to a man and wife and her heirs , found a donation by the man , whose means it was presumed to be , and revockable by him after her death ; and a tack taken by him , to himself and his wife in life-rent , was found revockable , by a posterior tack thereof to himself and his brothers son , december . laird of craigmiller contra relict of gawin 〈◊〉 , yet thereafter it was found in the same case , january . . that in respect the 〈◊〉 was set by a third person , and that it did not appear to be by the mans 〈◊〉 , that the back-tack to the wife , was not revockable . but a donation betwixt man and wife , altering their contract of marriage , being done before the marriage it self , was not found revockable , january . . john home contra john and george homes ; yea where the donation did bear date before the marriage , the husbands heir proving the write antidated , and that it was truely after the marriage ; the donation was therefore found revockable , july . . earl of dumfermling contra earl of callender . . to come to the interest of the husband and wife , after the dissolution of the marriage , we must distinguish the dissolution thereof , which falls by death , with in year and day from the solemnizing thereof , and that which is dissolved thereafter ; for by our custome , this is singular , which is found no where else in the neighbouring nations , that if the marriage dissolve within year and day , after the solemnizing thereof , all things done in contemplation of the marriage become void , and return to the condition wherein they were before the same ; and so the tocher returns back to the wife , or these from whom it came , and she hath no benefite or any interest , either in the moveables or heretables , either by law or contract provided to her : nor hath he any interest in hers , unless there were a living child born , which was heard cry or weep : in which case , marriage hath the same effect , as to all intents and purposes , as if it indured beyond the year and this is extended to both the marriage of maids and widows , july . . maxwel contra harestones . and extended also to an infeftment by a husband to a wife , though it had no relation to the marriage , but was only presumed to be , hoc intuitu , november . . grant contra grant , and not only extended to the wife and husband , and their heirs , but to any other person concerned , restitution being made , hincinde , of all done , 〈◊〉 matrimonii , june . . laird of caddel contra elizabeth ross : yea , a disposition by a father to a son of his estate , in contemplation of his marriage , which was dissolved within year and day by the wifes death , was found void ; seing the father persisted not therein , but infeft his second son , july . . lord burley contra laird of fairny . and a tocher payed within the year , was 〈◊〉 to be repayed without any deduction , for the wifes intertainment , during the marriage ; but only for her cloathes which were before the marriage , and her funeral charges which was after the marriage was dissolved , february . . janet gordoun contra thomas inglis . but gifts given to the married persons , by the friends of both , were divided equally , the marriage being dissolved within year and day , january . . wauch contra jamison . but if a living child was born , the marriage was found valide , though both mother and child died within the year , spot . husband and wife , stuart contra irving . the reason why the child must be heard cry , is to make certain its lively ripeness , and not to leave it to the conjecture of the witnesses : and therefore , it sufficed not , though they did declare , that the child was living immediately before the birth , and appeared lively and full ripe when it was born , but that it was stifled in the birth , as was found in the case of sandelands and thores ; yet a wifes infeftment was found valid , till her tocher was repayed , though the marriage dissolved within the year , july . . petrie contra paul. but where a marriage continued a year , and a part of the next day after the year , the tocher was found not to return , nam in favorabilibus dies , ceptus habetur pro completo , february . . george waddel contra george salmond . . marriage dissolveth by divorce , either upon wilful non-adherence , or wilful desertion , or by adultery ; and the party injurer loseth all benefit , accrueing through the marriage , as is expresly provided by the foresaid act of parliament , concerning non-adherence , . cap. . but the party injured hath the same benefit , as by the others natural death ; as was found , march . . lady manderstoun contra laird of rentoun . but if divorce follow upon impotency , all things return , hinc inde ; because , in effect there was no marriage , as was found , earl of eglintoun contra lady eglintoun . . by the dissolution of marriage , there ariseth to married persons , not only these rights , which by voluntar contract are constitute to either , and which are not proper here : but also these , which by law and custome , are competent without any special convention , or covenant ; and these are either upon the part of the husband , or more frequently upon the part of the wife : to the husband is competent , the life-rent of the wifes heretage ; which , because it is peculiar unto these nations , it is said to be the courtesie of scotland or england . to the wife ariseth , her share of the moveables , which is the half , where the man hath no children , in familia ; and the third , where there are such , and her terce , which is the third part of his lands , during her life . but of reversions , heretable bonds , dispositions , or rights of lands without infeftment , and of teinds , or tacks , or tenements within burgh , the relict hath no terce . these rights of terce and courtesie , fall in to be considered amongst the feudal rights ; and the relicts third , or half of moveables , in the succession of moveables , wherein it is a concomitant , and regulat according to that which is proper succession , either of children , or others ; though as to the wife , it be rather a division of that community of goods moveable , that was competent to the married persons , during the marriage , and therefore shall be insisted on no further here , but left to these places . and we shall proceed to the next kind of obediential obligations , and natural rights , which interveen betwixt parents and children . law and custome hath favoured , and priviledged wives in many cases , propter fragilitatem sexus , they are free from obliegements , for sums of money , and from personal execution , by horning or caption , if it be not for criminal causes , their contracts of marriage are preferable to other personal creditors , february . . thomas crawford contra earl of murray ; their share of their husbands moveables , is not burdened with the husbands heretable debt , december . . margaret mckenzie contra robertsons . july . . elizabeth scrimzour contra murrays ; yea , gratuitous , moveable bonds granted by a husband , payable at his death , whereby the whole executry would be exhausted , and the wife have no share , having no other provision ; the same were not found to affect the wifes share : but otherways , such bonds granted in leige poustie , without fraud , were found to come off the hail head , and not off the deads part only , december . . thomson contra executors of eleistoun . and a wife was found not excluded from her share of her husbands moveables , by a gratuitous disposition by her husband to his brother , of all sums that he should have at his death , january . . grant contra grant. in like manner , the infeftments and provisions of wives are effectual , although the tocher , which is the mutual cause thereof , be not payed , she not being oblieged therefore her self , though the contract bore , that the tocher being payed it , should be imployed to the wifes use , july . . mackie contra stuart . the like , though the contract bore , that the husband should imploy the tocher for the wife , in life-rent , albeit the tocher was lost through the fathers insolvency , june . . margaret hunter contra creditors of john peter . the like , though the contract bore , that the wife should have no benefit while the tocher should be fully payed , if the tocher could be recovered by the husbands diligence , november . . mary menzies contra john corbet . on the same ground , a contract of marriage , bearing the one half of the tocher to the wife , failing children , albeit conceived passive , and not that the husband was to pay the same , or do diligence therefore ; yet the husband was found lyable to pay the half of the tocher , although it was not recovered , unless he had done the diligence of a provident man , which was found implyed in his duty and trust as husband , the wife being in potestate viri , july . . jean lockhart and raploch her spouse contra james bonar . and though husbands have no communion in the habiliments and ornaments of the wife , which cannot be affected for his debt ; yet she hath her share of the habiliments of the husband , which falls in his executry ; and he is oblieged to pay all accompts for her habiliments , suitable to her quality . but where the wife had an alimentary provision for her habiliments , ornaments and her other uses , the husband having furnished them , and received that sum , was not found lyable to repay the same to her executours , february . . executours of the lady piltoun contra hay of balhousie . wives have not only a half , or third of their husbands moveables , when they survive , but have their aliment till the next term , after the husbands death . yea , a wife was found to have right to the expenses of child-bed , of a posthumus child , born after the next term , against the eldest son , though he was not heir , but having an universal disposition of his fathers means , which was very considerable : which disposition was granted after the posthumus childs conception , november . . thomas hastie and barbara ker his mother contra william hastie . a wife has also her mournings , if her quality require it , out of her husbands executry , november . . nicolas murray lady craigaffie contra cornelius neilson . july . . agnes wilkie contra christian morison . and likewise , if the wife predecease , her executours have the half , or third of her husbands moveables , the best of every kind being set aside , as heirship moveables , though there could be no heir for the time , the husband being alive , december . . agnes guidlet contra george nairn . title v. obligations between parents and children . . obligations betwixt parents and children , are divine by the law of nature . . the power of parents over their children : . in infancy ; . in minority ; . in majority . . oeconomical government . . provision of children . . obligations of children to their parents . . aliment due to parents . . obligations mutual of children . . patria potestas , amongst the romans . . amongst other nations especially , as lawful administrations . . forisfamiliation and emancipation . that there be natural obligations betwixt parents and children , not proceeding from the consent of either party , or from the constitution of any humane law , but from the obedience man oweth to his maker , who hath written this law in the hearts of parents and children , as to their interests and duties , with capital letters ; is evident by the common consent of all the nations of the world , how barbarous soever ; though evil custome hath put out the eyes of natural light in other things ; yet in this , the rays of the sun of righteousness are so direct , that their illumination cannot be extinguished . these obligations are so firm , that in most things they cannot be taken off , nor discharged by men ; though children would discharge their parents of natural affection , education , provision , &c. or parents would free their children of reverence , obsequiousness , and of intertainment of parents , not able to intertain themselves : yet would these obligations still be binding upon either . these obligations are placed in the common nature that man hath with other animals , and so is given as an evident instance of the law of nature , l. . ff . de justitia & jure . we shall then consider what these are ; and first , what interest the parents have in the persons of their children . secondly , in what they are naturally bound-to to their children . thirdly , what interest the children have in the goods of parents . fourthly , what they naturally do owe to their parents . fifthly , what they are bound in to each other . . for the first , ere we can distinctly know the power parents have over their children , we must distinguish the capacity and ages of the children , whereof there are three , infancy , or pupilarity ; minority , or less age ; and majority , or full age ; so doth aristotle distinguish , polit. . cap. ult . ethic. l. . cap. . l. . cap. . and after him . grotius , de jure belli & pacis , l. . cap. . . infancy is , when the children are without discretion , and then are wholly in the power of their parents , who not only may , but must carry them whither , and keep them where they will ; and must also breed and order them according to their capacities , means and qualities : and this is rather an act of dominion in the parents , the children being then capable of no obligation ; and therefore it cannot be received by them from the parents as an obligation , as it may thereafter be done , during the childrens minority , wherein there is a natural levity , for want of fixedness and experience , while the light of reason is but drawing towards its meridian clearness . . it will not much be debated , but the direction of children in their minority , is naturally stated in their parents ; but the greatest question will remain , of their full age , when the children become able to govern themselves , and their own affairs : and as to that , it is the opinion of some , that it standeth alone , inpietate & reverentia , steph. oeco.juris civilis , cap. . and vinnius partitionum , l. . cap. . in principio , sheweth , that the custome of holland dissolveth the power of fathers , by the childrens age of . . whatsoever may arise from the custome of nations , whereby the power of parents over their children , in their full age is much diminished ; yet by the original and pure law of nature , not only the tutory and protection of childrens infancy with the cure , and direction of their minority , is in their parents . but there is also an oeconomick authority in the father of the family , over all his children and descendants remaining in his family , whom he hath not elocat by marriage ( which is also a natural bond ) unto other families , whereby the females do naturally change their families , and become under the power of another family . . this is the only natural authority and government , which had in it self all authority , publick , private , civil and criminal , till by humane constitution , and divine approbation , most of that power is now devolved into magistracy . this power was not only before magistracy , but even thereafter remained , with subordination thereto in most nations , as caesar de bello gallico , lib. . writes that among the gauls and belgae , parents had the power of life and death . the like power had the romans anciently , l. in suis haredibus , . ff . de liberis & posthumis , l. libertati , . cod. de patria potestate . aristotle testifieth the like of the persians , lib. . ethic. cap. . and by the judicial law , deut. . vers . . the rebellious son , who obejed not the voice of his father and mother , was to be brought forth before the elders of that place , and stoned to death , without other proof than the parents testimony ; so that the sentence was the parents , though the execution was to be publick . such authority was that of the patriarchs , abraham , isaac and jacob , who with divine approbation , made war , peace and confederacys , which are the publick and proper rights of magistracy , and governed their own families without any authority derived from any other . and though jacobs family arose to that greatness , that in it were many families , yet he remained the father and prince of them all ; so that the several subordinat families , had their subordinat authority over their wives and children , and so their children were bound in obedience to them , but with the exception of their superior parents , to whom the first obedience was due . this native authority reacheth all children , whether procreat of lawful marriage or not , so that they be truely known to be children , because the same foundation , and common principles and duties , are in both , though they have not the same interest in the fathers goods , in respect of that community of goods betwixt man and wife , and the conjugal society , even naturally , whence the goods are derived into the issue of the lawful marriage . this paternal authority doth not necessarily carry the property and disposal of the goods of the children ; but that they are capable of such by the gift of their parents , or any other ways , even in infancy , and that they have the full dominion and administration thereof , in their full age : and therefore , bonds of provision , by fathers to children , if delivered , are not revockable , directly nor indirectly , by contracting debts thereafter ; and the delivery of such bonds of provision , makes them irrevockable , whether the delivery be to the children , or to any other for their behoove ( which behoove will be presumed , unless the father express his mind at the delivery , that the write is to be returned to himself , or depositate upon terms ) and therefore , a bond taken by a father , in the name of his brother , the father obtaining an assignation from him to his daughter ; the bond was not found revockable by the father , being registrate in the brothers name , november . . executours of trotter contra trotter . childrens provisions by bond , granted after a testament , nominating them executours , found not to import that they should have the executry , if the heir be oblieged to pay the bonds of provision ; but that the bond being moveables should first affect the executry , february . . belfhes of tofts contra belshes . and a father granting bond to a bairn , in satisfaction of her portion natural , was not found thereby to apply that bairns portion natural to the heir , executour , or unlversal legator , though they would be lyable for payment of the bond ; but to apply that bairns share to the rest of the bairns , who thereby will have the whole bairns part , february . . mistris katharine mcgill against the viscount of oxford , for bonds of provision , delivered in liege pousty , do , as other debts , affect the whole executry , and where all the bairns had bonds of provision , bearing in satisfaction , they had also their bairns part of the executry , july . . murrays contra murrays . but bairns provisions , payable at such a day , and not bearing the proportion of the deceasing to accress to the surviving the share of these bairns , who dyed before that age , without issue , was not found due , february . . belshes of tosts contra belshes . the delivery of writes in other cases , is presumed from the date , if they be in the persons hands , in whose favours they are granted ; but in competition with other creditors , the delivery of bonds of provision is not presumed to have been from the date , but that 〈◊〉 be instructed by some evidence , as taking seasing , registration , or witnesses , who saw the same in the hands of the children , or others to their 〈◊〉 , and in that case they are valide , if there be no 〈◊〉 , or prejudice to creditors , by latency or 〈◊〉 and therefore bonds of provision to children , were reduced upon the eldest sons contract of marriage , though 〈◊〉 , january . . laird of 〈◊〉 〈◊〉 his brothers and sisters . and a posteriour tocher was preferred to a prior assignation , to a bairn in family , unless the prior delivery were also proven , november . . major ingles contra 〈◊〉 , june 〈◊〉 . . johnstoun of 〈◊〉 contra isobel arnold . but from this paternal power , it follows , that the parents may continue and keep their children in their families , and that they are oblieged to imploy their service and work , for the common interest of the family , and what thence arises , is the parents , not their own , which doth always indure , till by consent of the parents , they become 〈◊〉 〈◊〉 , whereby they may imploy their work and service for themselves alone . thus the interest of parents in the persons and goods of their children , by the law of nature , being cleared . as to the obligations natural of parents toward their children ( beside their obligations that stand , and are acted in the mind and affections , which the law respecteth not , but these only , qua non mente , sed manu tenentur ) the main obligations are education and provision . the education of children consisteth not only in the care and intertainment of them , during infancy ; but especially in breeding of them for some calling and imployment , according to their capacity and condition . . the duty of provision of children , comprehends , not only their aliment , and intertainment in meat , cloaths , medicine and burial , which may be competent , during the parents life ; but also competent provision after the parents death ; for the apostle saith , that he that careth not for his family , is worse then an infidel , tim. . vers . . and in both , the ability of the parent , and necessity of the children is to be considered ; for if the children be 〈◊〉 provided , aliunde , the parents are not bound ; and though the children be necessitous , yet there must first be reserved for the parents , that which is necessar for subsistence , so that when they are not able to intertain their children , they may lawfully expose them to the mercy and charity of others . but a father , though indigent , was decerned to receive his son ( having no means or calling ) into his family , or to pay him a modification , january . . william dick contra sir andrew dick. but a father was not found lyable to pay a merchant for furniture given to his son , where he gave his son an allowance in money for his cloaths , january 〈◊〉 . . high 〈◊〉 contra craufoord of camlarg . neither was a father found lyable for his daughters bridel-furniture to a merchant , whom he prohibit to give them off ; but the daughter and her husband , july 〈◊〉 . . 〈◊〉 contra 〈◊〉 and gairn : and a mother was found oblieged to receive her children into family ( but for no other modification ) though they were noble persons , there being none representing the father , able to intertain them , february . . children of the earl of buchan contra the 〈◊〉 . as to the interest children have in the goods of their parents , it is to be considered , either during the parents life , or after their death ; for the interest they have after their parents death , it falleth in to be considered among the conveyances of rights by succession ; but during the parents life they have no real right of dominion , or property in the parents goods : for though the parents be oblieged naturally , to intertain and educate their children out of their goods , yet that is but a personal right , and intituleth not the children to meddle with the parents goods , upon that pretence , as saith solomon , prov. . vers . . who robbeth his father and mother , and sayeth it is no transgression , the same is the companion of a destroyer . . the obligation of children toward their parents , consists mainly in their obedience to them ; and their duty to aliment and supply them in all their necessities , according to the childrens ability : their obedience to their parents is much cleared from that power and authority their parents have over them , of which we have spoken . for unto authority , or power to command , subjection , or obedience answers , as the correlate ; so that as the parental power was most in the infancy of the children , and least after their forisfamiliation ; so are the duties of obedience proportional : but after emancipation , these duties are so far diminished , that little remaineth , except the natural reverence , tenderness and obsequiousness , that children do still owe to their parents , in due order ; which , though it hath no civil remeeds , yet it remains a natural obligation , to observe the parents commands , throughout their posterity , as in that nottour example of the rehabites , jer. . is clear , where they observed their fathers commands , in a free thing , though inconvenient , viz. to drink no wine , to build no houses , &c. and for their obedience , the lord promises , there should not be wanting a man of them to stand before the lord for ever . but while they are in the family , they are not only under the oeconomick government of their parents , in so far as is not devolved to the magistrat ; but specially they are bound to abide with their parents , and to imploy their service for their parents , and the use of the family , whereunto their parents may compel them by their own proper authority ; and parents have action against all others , who shall hinder them to keep their children with them , or lead them whether , and imploy them as they please . . the obligation of aliment , and relief to parents in necessity , is due , both by the law of nature , and hath in it also , that remuneratory obliligation , whereby children ought to retribute to , and recompence their parents for their education and intertainment ; and though it be said , cor. , . that children ought not to lay up for the parents , but the parents for the children ; yet it is to be understood , of that care , foresight and providence that parents ought to have , not only to provide things necessar for themselves , but for their children also after them , which being an ordinary duty , ought to be in their thought and consideration ; and is not incumbent to the children , it being but rare and unexpected , that parents necessities put them to expect relief from their children ; or else it is to be taken comparatively , that parents are rather to lay up for the children , then children for the parents . solons law made the children infamous , who did not aliment their parents . and cicero in his oration , de responsis aruspicum parentibus , nos primum natura constituit debitores , quos non alere nefarium est . in these natural obligations of aliment betwixt parents and children , the order of nature must be observed , that the nearest are first to be preferred , and the paternal line before the maternal , as being in an other family ; for even the distinction of families , and union thereof in the paternal power , is natural , as before is said . from the same ground , parents must first aliment their children in the family , and amongst them that are emancipat , the males are preferable to the females , passing by marriage into other families . . as to the natural obligation of children amongst themselves , there is no doubt , but that there naturally lye greater obligations upon them , each to other , than the common obligations betwixt man and man , which are not only greater in the measures and degrees , as to love them , assist them , support them , and supply their necessities the more , by how 〈◊〉 degree of blood they are bound to them than others , which is commonly acknowledged by all . but the romans , and many other nations have acknowledged , the natural obligations of brothers and sisters , to 〈◊〉 each other ; though our custome hath not authorized the same , unless the brother were heir to the father in a competent estate , and the remanent children not at all provided ; in which case , the lords modified aliment to them , january . . the children of wedderlie contra his heir . aliment was also found due by a brother to a sister of a second marriage ( who had a portion to be payed ) at the age of fourteen , and no annualrent or aliment in the mean time , though they had a mother on life , 〈◊〉 . . catharin frazer contra hugh frazer . the like found due by an heir male , to heirs of line till their marriage , seing their portions bore no annualrent , january . . lady otter contra laird of otter . november . . daughters of balmanno contra heir-male thereof . it is also an natural obligation upon children , or kinsfolk descending from one common stock , to defend , and have the tuition of the pupilarity of that race , which is incumbent ordinarily to the next degree in that same family ; and this is the natural rise of tutors , of which in the next title . . the romans did no more diminish the conjugal interests and obligations , competent by nature ( as is before shown ) then they have exceeded the law of nature , in the interests betwixt parents and children ; for thereby the parents power is so great , that no nation hath the like , institut . de patria potestate , § . . it being almost dominical , and the children as servants , l. placet . . ff . de acquirenda haered . the father had also the power of life and death , l. ult . cod. de patria potestate , l. 〈◊〉 . ff . de liberis & posthumis ; they had power also to sell their children unto servitude . this was the ancient roman law , whereof the austerity was by little and little corrected , by the recent law , so that both in servants and children , it was taken off , and this power 〈◊〉 to cases of extream necessity , l. . cod. de patribus qui filios . children were permitted also to have goods of their own , which were called , peculia ; in which they were as free , and had all their rights and actions competent as others , but with these restrictions , whereby the right of the father , in the goods of the children , was much abaited ; for in the peculia , which the son acquired by arms , or liberal arts , the father had no power , which was called , peculium castrense , vel quasi castrense , l. . ff . ad . 〈◊〉 . maced . of other goods which befell the children , or were acquired , and came not from the father , which were therefore called adventitious , the father had the usufruct and administration ; but not the property or power of alienation , l. . cod. de bonis maternis , only in 〈◊〉 〈◊〉 , which came from the father , he had full right and property , and all permitted but to the son , was to make use of , and mannage it for the fathers advantage . in these peculia , children were as fathers of families , by recent law , l. . filius familias . . ff . de oblig . yea , even the ususruct ceased in goods given , or left to the children , excluding the parents , nov . . in principio . . next , where any thing was given , or left to both 〈◊〉 . . when the goods came by the fathers fault , as when he did unjustly divorce with the mother , nov. . de haered . cap. . . the custome of the neighbouring nations do follow more closely the natural law , as the custome of france , and the netherlands , as is recorded by gudel . de jure nov. cap. . and mathias stephanus , 〈◊〉 the like of the customes of germany , oecon . juris civilis , lib. . cap. . § . . the custome of this nation also keepeth close , to what is expressed before of the natural law , as to the interests and obligations of parents and children , and thereby aliments are frequently decerned to children , to be payed by their fathers , if they expell them from their families , and that not only by the act of parliament , providing aliment to heirs of land , to be payed by the liferenters ; but a father , though his son had no lands , was found conveenable , super jure naturae alendi 〈◊〉 , july . . laird of ramorney contra law. so also by our custome , a father is tutor of law to his sons being pupils : and therefore , a father was found lyable to the son for annualrent of his mothers third of moveables , remaining in the fathers hands , february . . beg contra beg. but a father was not found oblieged for annualrent of a legacy belonging to his son , uplifted by him , seing he alimented the son , december . . margaret winram contra mr. james ellies . a father is also curatour to his children , specially when in his family , unless other curatours be chosen by his consent ; and so a father discharging the rent of his sons lands , set by the father , though he was only life-renter , and the son , the pupil-fiar , was found valid , for years after the fathers decease , in respect he was lawful administrator , young rosyth contra his tennants . but a father being poor , was not allowed to lift his sons money , without finding caution to make it forth-coming , february . . givan contra richardson . neither might a father , being lapsis bonis , assign a tack , acquired by him to his son , though he might uplift the duties , as administrator , january . . lands contra dowglas . so deeds done by such minors , without their fathers consent , as lawful administrator , were found null , george stuart contra home of rentoun . after pupilarity , a father is no more tutor to his children , and so might not discharge for his daughter , being past pupilarity , but only consent with her as curatour , june . . john forrest contra forrest . a father is lawful administratour , both as tutour and curatour honorarie , of himself , without any cognition or solemnity , and is not lyable for omission , neither is he exclusive of other curatours . but deeds done without a fathers consent by a son , were found null , albeit the son resided not in his family , but followed the law , having no calling or patrimony to maintain himself , but living on his fathers charges ; neither was his fathers subscribing with him , found a sufficient authorizing of him , seing he subscribed with his father , as cautioner for him , december : . sir george mckenzie contra mr. john fairholme . . as to the fathers power , to keep his children within his family , and to apply their work for his use , though controversies in that point have seldom been moved , but the matter transacted by consent : it is not to be doubted , but that children may be compelled to remain with their parents , and to imploy their service for their use , even after their majority , unless they be foris-familiat by marriage , or by education in a distinct calling from their parents , unless their parents deal unnaturally with them , either by attrocity , or unwillingness to provide them with a competent marriage , in due time , and with means suitable to their condition , for that obliegement to provide for them , would be a ground of exception against them , if he would unjustly detain them in these cases ; or if the father countenance , or allow the children to live by themselves , and to mannage their own affairs apart , from whence his tacit consent to their emancipation , may be inferred ; in which cases also , zas . . in lib. utrum turp . &c. de verb. oblig . and , math. steph. oecon . juris civilis , lib. . cap. . doth declare , that the consuetude of germany is the same with our customes before expressed . the english account children to be emancipat , so soon as they passe their minority , cowell . institut . jure anglicani . tit. . § . . title vi. obligations of tutors and curators , pupils minor , and persons interdicted . . the rise of tutory in the law of nature . . order of tutory by the law of nature . . the naturall obligation of tutors . . pupils obligations to their tutors . . kinds of tutors by the common law. . tutors testamentar . . tutors testamentar exclude all others . . tutors of law , who . . how tutors of law are entered ? . the time within which they must enter . . tutors dative . . pro-tutors . . factors for tutors . . con-tutors . . tutors custody of the pupils person . . tutors authorizing their pupils . . tutors , or their factors rights , relating to the pupils , accress to them . . tutors can only do necessary , not free arbitrary deeds , but may not sell lands , sine authoritate judicis . . tutors are lyable for annualrent for their pupils means . . tutors are conveenable with their pupils , and lyable , in quantum intus habent . . tutors accompts . . tutors are lyable for exact diligence , both for intromission and omission . . tutors are lyable , in solidum . . tutory , how finished . . tutors of idiots and furious persons . . gesta tutorum accrescunt pupillis . . removing of suspect tutors . . duty of pupils to their tutors . . rise of curators . . curators , ad lites & negotia . . minors may at their option , choose , or not choose their curators . . minors deeds , having curators , without their consent are ipso jure , null , nisi in quantum ●●erantur . . curators consent , not requisite to latter wills. . restitution of minors upon enorme lesione . . minor non tenetur . placitare super haereditatem paternam . . differences betwixt tutors and curators . . duty of curators . . curators , or interdictors for prodigals , or lavish persons . . interdictors constitute , causa cognita . . interdiction by parents consent . . publication and registration of interdictions . . interdictions only extend to heretable rights , not moveables , not to personal executions . . interdictions are only competent by way of reduction . . interdictions cannot be taken off , but by authority of a judge . tutors and curators , succeded in the place of parents , and their obligations have a near resemblance ; and therefore , shall be here fitly subjoyned , though in the constitution , and duties of tutors and curators , the positive law predomineth ; yet , that without any positive law , or contract , there is a duty of tuition , and protection of orphans , and specially upon these , who by relation of blood , are their nearest kinsmen , and in place of their parents , it will appear by what ensueth ; and what is superadded , either by the consent of parties , in curators , or by the law , in tutors , with the condition and interest of pupils and minors , cannot conveniently be separated . if there were no positive law , the natural infirmity of pupilage , would not want its natural remedies provided by him , who is the father of the fatherless , and layeth his obediential obligations upon these , whom , by the law written in their hearts , he hath bound to the performance of these duties , as is before shown . there is a common obediential , or natural obligation upon all men , of love , mercy , and relief of the distressed , among whom infants and pupils , who have no discretion , and cannot at all preserve , or govern themselves , are the first . it hath been also shown , that there is a more special obligation put upon those of one blood , one family , from one common parent , to help and support each other , and that in order . . the first and nearest degree , is first , and most oblieged ; hence ariseth that orderly and comely natural substitution of tutors , for the preservation of pupils : first , the fathers tutory and lawful administration , whereof we have spoken already ; and these failing by death , or incapacity , the nearest degree of agnats are in the place of parents , and are all joyntly bound to this natural duty , unless the parents , by their parental power , have appointed , and ordained others whom they trust , to undertake that work . and lastly , the common obligation that lyeth upon people , hath devolved upon the magistrate , as representing them , the duty of being , or appointing tutors for pupils ; hence doth arise the distinction of tutors , in testamentar , constitute by the parent in his testament , legittime appointed by the law , which is of the nearest agnats , and dative , which are ordained by the king. . the natural obligations of these tutors to their pupils , are first , to preserve their persons , and defend them against injuries and prejudices ; and therefore , are they named tutors , quasi tuitores , l. . § . ff . de tutelis . . to aliment them out of the pupils own means , according to the condition thereof ; and to educate them for a station in the common-wealth , according to their quality and capacity . . to mannage their affairs with such diligence , as provident men use in their own affairs , that nothing may be lost , but every thing improven to the best advantage ; in all which , they are not to exerce voluntary acts of dominion , at their choise , as disposing of what is secure ; but only necessar acts , for the preservation and recovery of what will , or may perish , and for improving the profits of it . . they are bound to give an accompt , and restore to the pupil what is his own , so soon as he attains to the age of discretion . . and on the other part , the pupil is oblieged to the tutor , by the obediential bond of remuneration , or recompense of one good deed for an other , to make up to the tutors whatsoever is wanting to them , through their faithful administration : this is all the substance of the interests and obligations of tutors and pupils , which the positive law doth no more but declare , apply , and ascertain , by the form of entring that office , the security for performance of it , the fixed time of indurance thereof , which naturally is the age of discretion , in some sooner , in some later , in some never : but for certainties cause , positive law determines a particular year , in which , for the most part , discretion cometh . that there are such interests and obligations , even naturally , the light of nature will so easily go along , that it will rather need consideration , than confirmation , the grounds thereof being commonly acknowledged , and accustomed by all men , who are led by reason , and it is so insinuate by the ordinar term of law , whereby these obligations are called , quasi ex contractu , as arising from no contract betwixt the tutor , and the infant , or pupil , as not capable of contracting , and yet are not simply by the constitution of law ; and therefore , these obligations , not being by the will of man , must needs be obediential obligations , by the will of god. the romans have in this matter keeped clearly and clossely by the law of nature ; and therefore , our customes have keeped as near by them , and so have the customes of other nations ; so sayes gudelinus , de jure noviss . l. . cap. . § . ff . that the custome of france and netherlands , hath very little altered in this from the roman law ; we shall therefore interweave the civil law and our customes , that it may appear how far they do agree , and differ , and how they do quadrat to the law of nature , following this order ; . what kind of tutors they be , and what order of the same . . what the tutors duties are in their entry , administration , and accompts . . how tutories end . . the pupils obligation to them therefore . and last , of that resemblance that curatours and minors have tutors and pupils . . as to the first , there be three kinds of tutors , by the civil law , and our custome ( befide that of the father , who is called for distinctions sake , lawful administratour , of which formerly ) the first is , tutor testamentar , or nominate . the second , is the tutor of law. and the third is , the tutor dative , all which follow in course , in the same order . . a tutor testamentar , by the civil law , behoved to be either named in the testament , or codicills confirmed by testament , l. . ff . de testamentaria tutela , and could only be given to such as were in patria potestate , § . . inst. de tutelis . but by our custome , a father may nominate tutors to his children , in any writ he pleases , but it is of a testamentary nature , always ambulatory and mutable , during his life ; a grand-father cannot name tutors to his oyes , because his son being emancipat by marriage , they are not in his paternal power ; neither can a mother , or grand-mother , who have also no such power ; but any person that gives or dispones any thing to a pupil , may in that disposition name tutors , who are not properly such , but only have the trust and charge of that thing disponed , and as to it , exclude all other tutors , which taketh place , because that nomination is a quality and condition in that donation , november . . fleming contra brown. january . . kirktouns contra laird of hunthill . . a tutor testamentar requires no preparatory solemnity to capacitate him to act , but the very nomination it self is sufficient , and if it be in a testament , it is valide , though the testament be never confirmed , or be rejected by the executors ; and so there needs no making of faith , or finding caution , because it is presumed , the father that did name him , did sufficiently know his faithfulness and fitness : and the confirmation of a testament , bearing , that a tutor nominate , accepted , and made faith , was not found to instruct his acceptance , with out the principal act subscribed by him were produced , or acts of administration proven , though it was thirty seven years since the confirmation , january . . rutherfords contra laird of hunthil . neither was a tutory found instructed by a discharge , as tutor testamentar , it being evident by the testament , that he was only overseer , june . . swintoun contra notman . but a write under the tutors hand , designing him tutor , found to instruct , unless the contrair were proven by production of the tutory , december . . mr. alexander seatoun advocat contra seatoun of menzies . and a tutor nominat with other two , who accepted not , was only found lyable from the time of his acceptance , by acting as tutor , and not for what was lost before , although there was a considerable legacy left to him in the testament ; and that shortly after the defuncts death , he confirmed himself , qua legatar , and had inspection of the defuncts writes , and subscribed an inventar thereof , whereof the testament was one , yet did not act as tutor for three years after ; but he was not found to have right to the legacy , not having followed the defuncts will , by accepting the tutory at first , february . . margaret scrimzeor contra wedderburn of kingennie : but where the condition of the tutor nominate , appeared otherways than when he was nominate , action was found sustainable at the pupils goodsirs instance , to cause him find caution , if the overseers thought fit , nic. rem pupuli salvam fore , thomas foules contra alexander mcmath . neither needed there any making of an inventar of the pupils goods , as was prescribed in the civil law , nov. . l. ult . authen . quod nunc generale l. de curat . furiosi . by which it is clear , that all tutors did make faith , de fideli , administratione ; they behooved also to find caution , l. tutores , . c. de administratione tut . and they behooved to make inventar , l. . tutor . qui . ff . de administratione , tut . l. tutores c. eodem . but now , by the late act of parliament , . cap. . all tutors e'r they can act , must make inventar of the pupils means , with advice and consent of the nearest of kin on both sides , and deliver to them , doubles signed , or in their absence , leave them with the clerk , to be delivered to them , according to the order prescribed in the act. . a tutor testamentar , is ever preferred to a tutor of law or dative , even though the tutor nominat forbear to act for seven years ; and that a tutor dative was nominate , and in possession of the custody of the pupils person , december . . 〈◊〉 contra oliphant ; or though the tutor nominate , had ceased six years , and was curator to a party , against whom the pupil had an action or process ; seing in both cases , no detriment could be shown by his forbearance , july . . campbel contra campbel . the like , where the tutor nominate had abstained seven years , and yet was preferred to the custody of the pupils person ( here the pupil had no means to be administrat ) spots . de tutel . irving contra irving . if there be no tutor nominate , there is place for tutors of law , who ordinarily are these who have the benefite of succession in the pupils estate ; and so by the roman law , all the agnats of the nearest degree , as they were heirs , so were they also tutors , by the law of the twelve tables , l. . & . ff . de legit . tut . and so after the succession was extended , as well to the cognats as to the agnats , with the benefite thereof , the burden also of the tutory was extended , nov. . cap. . and with us , upon the same ground , as the prerogative of primogeniture , hath given the succession , not to the whole next degree of agnats , but to the eldest male , and his issue ; so the tutor of law is only one , viz. the nearest agnat or kinsman on the fathers side , of twenty five years of age , par. . cap. . where it is expresly declared , that though the tutor of law be ordinarily heir , yet not always ; for though the pupil have a younger brother , who is immediat agnat , yet the nearest agnat of twenty five years old , will be his tutor , passing by all others within that age . . the tutor of law is servded , upon a brief directed out of the chancellary , by an inquest , as appears by the foresaid act of parliament ; but the brief may be directed to , and served by , any judge ordinar , though the pupil live not within the jurisdiction , march . . william stuart contra agnes henderson . tutors of law before they act , must find caution , rem pupuli , salvam fore , which though it be a ground to compel them to find caution , or exclude them from authorising , or acting for the pupil , till they find caution ; yet it did not anull their office , or prefer a dative to them , so soon as they find caution , though the dative had already found caution , june . . irwing contra elsick . . the tutor of law must serve himself within year and day , from the time that he is in a capacity to be tutor , either counting from the defuncts death , or from the birth of the pupil , if posthumus , or the ceasing of a just impediment ; so that after the marriage of a tutrix testamentar , place was found for a year , for the tutor of law to serve himself , before a dative had access , july . . grant contra grant. but there seems no prefixed time to the tutor of law to serve himself to the tutory of an idiot ; and therefore , the nearest agnat , as lawful tutor , was preferred to a tutor dative , though he had made faith , and found caution ; and though the service was not till five years after the idiots majority , february . . calquhun contra wardrop . it was also found , that a tutory dative , did not hinder the service of a tutor of law to an idiot , quandocunque january . . stuarts contra spreul ; because , by the act of parliament , . tutors to idiots must beserved by an inquest , cognoscing the idiotry , par. . cap. . par. . cap. . . where there is no tutor nominat , nor the tutor of law claimeth right within the year , there is place for a tutor dative , which , though by diverse municipal customs , may be constitute by the ordinar magistrate of the place , yet is most fitly constitute by the supream magistrate ; and so with us , is given by the king , in exchequer ; and by the late act of exchequer , . it is appointed , that before constituting of any tutor dative , the pupils nearest friends on both sides , shall be cited , that they may offer and inform , concerning the fittest persons to be tutor : tutors may be given to strangers pupils , in so far as concerns their lands in scotland , december . . fleming contra brown. the like , spots . de tut . donaldson contra skiltoun . in the nomination of tutors dative , though it be in the arbitriment of the king , to choise whom he thinks fit , yet he will have regard to the interest of the pupil , to give a tutor , either who was nominat by the father , but not legally ; or who was nominat by the mother , or grand-mother , though having no legal power , or the nearest of kin , though they have neglected to serve within the year ; but of all these , he may take the best of such as offer , or are willing : seing with us , all tutors are free to accept , or refuse , yea , and may renounce , not having intrometted with the pupils means , though several actions were pursued in their names as tutors , spots . de tut . duff contra mr. william chalmer . but tutory being a publict office , it could not be refused among the romans , unless the tutor had excuses allowed of the law , tit. de excus . tut . ff . per totum . tutors dative must both make faith , de fideli administratione , and find caution ; the sufficiency whereof , is in the magistrates trust . and among the romans , an ordinar , or inferiour magistrate or his heirs , were lyable , pro dolo aut lata culpa ; if the caution taken by them , was not found sufficient , tit. ff . de magistratu conveniendo ; but not the greater magistrates , as the pretor , or president , who , through the eminency of their office , could not so particularly know , but were necessitat to trust to the relation of others , l. . ff . tit. eodem ; and so it is with us : but the datives not making faith , or finding caution , though his office there to compel him , or repell him from authorizing , or acting ; yet it doth not annual his office , or work to his profite , as hath been said of the tutor of law. . these that act as tutors , not knowing but that they are such , or otherways fraudulently knowing they are not such , are therefore called pro-tutors , and are lyable for all the duties of real tutors , during the time of their acting , and by the civil law , they were lyable to make up his interest , whom by fraud they had deceived , by acting as tutors , tit. ff . quod falso tut . whence it follows , that such actings were void ; but if the person had been long holden , and repute tutor , the deed would be sustained , unless annulled , because of the pupils lesion ; there hath no decision occurred with us , to shew whether pro-tutors are oblieged for their intromission only , or also for their omission : but a case lately occurring , the lords thought , that upon some few acts , this would not be inferred , but upon an universal acting , or express , under the name of tutor ; but decided not , till they heard the parties , in praesentia ; whereupon , after long debate , they found , that an overseer , acting under the name of tutor ( but by a false designation , contrair the testament ) should be lyable only for such kinds of things , and for the annualrents thereof , as he intrometted with , for seing he had no law , or custome regulating the case , the defender could be only condemned according to equity ; but they declared , by an act of sederunt , that whosoever in time coming , medled with pupils means or minors , as pro-tutors , or pro-curators , should be lyable from henceforth , as tutors or curators , for intromission and omission , june . . swintoun contra notman . . tutors do use ordinarily , to name factors , who do not exoner the tutors of any of their obligations , but both the tutors and they , as the tutors , are lyable to the pupils therein , if they be factors generally , march . . laird of ludqhuairn contra laird of haddo , july . . edmonstoun contra edmonstoun . . if there be more tutors nominat , or dative , and no quorum exprest , if some of them die , the office is not void , but the rest of them may act , and so it was found in tutors nominat , hope executours , stuart contra kirkwood and moor. the like , though some of the tutors accepted not , hope tutors ruthven contra ibid. george faside contra edmonstoun . february . . mr. john eleis contra mr. john scot. but a tutory to two , bearing to them joyntly , was found void by the death of either , january . . drummond of ricartoun contra feuars of bothkennet . and where there are many tutors nominat , they may be either with , or without a quorum , and either definitely , or by a distinct division ; in which case , each are but lyable for their own division , l. . cod. de dividen . tut . . as to the duties of tutors , they are alike in them all ; and the first is the custody of the pupils person , wherein a tutor was preferred to the pupils mother , offering to entertain him gratis , though the person nearest to succeed was married upon the tutors sister , here the tutor was nominat , and the mother married , july . . laird of longshaw contra moor. the like , where both the tutor and the mother offered to aliment the pupil gratis ; but the mothers second husband had apprized the pupils lands , and the pupil was a lass only of five years old , february ult . . gordoun contra corsan . a tutor was found to have the custody of his pupil ( who was an heretrix ) and not her mother , though she offered to entertain her gratis , being married to a second husband , february . . foullartoun contra lady boyne . yea , a tutor obtained his pupils person , to be removed from her mother , though unmarried , at the pupils age of eleven years , albeit the pupil was valitudinary , and she was appointed to remain with one of her fathers friends , to the effect that she might not be influenced as to her marriage , by her mother , or her friends , february . . laird of dury contra lady dury . but if the tutor be immediately to succeed to the pupil , he hath not the custody of his person , which is to be with his mother , or some other person , at the arbitriment of the lords , and a modification for the pupils aliment , according to his means , nic. ubi . pupulli . mary foulis contra mcmath ; but if there be any other immediate successour , though the tutor was next , he had the custody of the pupils person , ibid. forrester contra smith . of old , tutors were excluded by the donators of ward , from custody of the ward pupils person , january . . laird of achnames contra laird of elphingstoun and lethingtoun . march . . weir contra lockart . and july . george weir contra laird of lee. spots . hic . hamiltoun contra laird of gaustoun . since , the tutor and the pupils mother , having license from him , were preferred to the custody of the pupils person , to the donator of his ward , nic. ubi pupulli morari , mr. james chalmers contra elizabeth houstoun . the next duty of tutors , is , to authorize the pupil in actions of law , which , though it be done ordinarily by all the tutors , when they are more , yet one of three was admitted to authorize a pupil , in a pursuit against the other two , to accept or renounce , though they were all named jointly , march . . moor and thomson contra kincaid . tutors or their factors , are presumed to do that to the behove of the pupil , which they ought to do ; and though it be done , proprio nomine , it accresceth to the pupil , july . . edmonstoun contra edmonstoun ; and so a tack of the pupils rents , taken by the tutors factor to himself , and his wife in liferent , was found to accress to the pupil , except as to the wifes liferent-lands , march . . laird of ludquharn contra laird of haddo , this is presumed , prasumptione juris ; so that the narrative bearing another clause is not respected : and therefore , a tutor acquiring a discharge , or assignation of an annualrent due by the pupil to his mother , the same was found to accress to the pupil , though it bore love and favour , and for the tutors pains , and discharging the office , march . . white contra dowglas . hope , tutors , duer contra duer . neither hath the tutor ordinarily action against the pupil , till his office end , and then he may pursue as a stranger , hope , de minoribus , nasmith contra nasmith : likewise , he may apprize the pupils lands for his own debt , the pupil having other tutors , hope , de haeredibus , white contra calderwood . so a tutrix nominat , sine qua non , was admitted to pursue a registration of her contract of marriage against her pupil , there being more tutors nominat , and she having renounced her office , though she had acted by subscribing deeds not hurtful to the pupil , july . . lady stanyhill contra her son. . tutors may only do necessar deeds for their pupils , either such as the pupil is oblieged to do , as payment of his debts , which the tutor may do willingly , without compulsion of law , or otherwise , deeds necessar for mannaging of his estate , and setting of his lands , or labouring the same , uplifting his rents and annualrents , uplifting the sums that are not secured ; carrying on any work which was left to the pupil , which cannot otherwise be disposed of : but tutors cannot sell the lands or heretable rights of their minors , without an interveening decreet of a judge , tit. ff . de rebus eorum qui sub tutela , &c. and any such alienation is null , without the cognition aforesaid , which must be , by calling the creditors of the pupil , and his nearest friends , to hear and see it found , that there is a necessity to sell the whole , or a part of his heretable rights , and that the rate thereof may be determined ; in which it must appear , that the pupils debt cannot otherways be satisfied . the law allows the like , in the case of the pupils aliment , which cannot be afforded otherways ; alienations so made , are not easily reduceable , or the pupil or minor restored against the same , if the true cause hath been known to the judge , but not so , if that hath been latent , either dolo or lata culpa , l. . cod. de praed . minor non alien . and therefore , a tutors assignation of his sons and pupils mails and duties , for the tutors own debt , was found null by exception , even at the pupils tennants instance , spots . assignation , lands contra lands ; yet a tutors ratification of a reduceable decreet given against his minor , was found valide , though voluntar , being in re antiqua , spots . tutors , earl of kinghorn contra george strang. . tutors and pro-tutors are lyable for annualrents of their pupils moneys , which they are oblieged to make profitable , in so far as they are either liquid sums , that they had , in specie , or which the tutors took up , which was made up of their pupils moveables , or rents of lands , after a term , in money rent , and a year , in victual , from the term of payment , in so far as it is not imployed for their own use , or profitably for paying of their debts or annualrents , alimenting them , or other uses necessar , according to the ancient law of the romans , which oblieged the tutor , after he had the money two moneths in his hands ; but the novel constitutions , novel . . cap. . de administrat . pecun . pupilli , &c. it is left to the arbitriment of the tutor , either to keep the pupils money by him , or to imploy it for profite : but it is not so by our custome , annualrent is due , even after the office is extinct by marriage , the tutrix having continued her intromission , though there were other tutors , july . . vallange contra kincaid , but not for annual of the pupils annualrent , though the tutor received the same , and they were great , july . . nasmith contra nasmith . but it was lately found , that a tutor by his office and diligence , was oblieged to lift and imploy the pupils annualrents of sums in secure hands , once in his tutory , and so pay annual for the annualrents of his pupils sums , omitted to be uplifted by him , but only from the expiring of the tutory , january . . mr. william kintor advocat contra john boid . so a tutor was found lyable for the annualrent of his pupils annualrent , within a year after his acceptance , but not for the current annualrent , during the tutory , he leaving the same imployed for annualrent , at the ishe thereof , february . . isobel dowglas contra john gray . a tutors heir being minor , found not lyable , but only for annual after the intenting of the cause , the pursuer being silent twenty five years , february . . davidson contra jack . neither was the heir found lyable for annualrent , where the father died during his tutory , hope , de haered . graham contra crichtoun . january . . kintor contra boyd . . tutors are lyable for their minors , and must be conveened with them by their creditors , for their interest , and are also decerned with them for their interest ; upon which decreets , personal execution is competent against tutors , for any deed prestable by them , by their office ; for example , he may be compelled to receive a vassal , whom the pupils predecessour was oblieged to receive ; or grant a tack of lands , or a charter , or seasing , where there hath been a disposition before ; but in decreets for payment of liquid sums , execution cannot be made against the means of tutors , unless they be specially decerned , to make forth-coming so much of the pupils means , as they have in their hands , for satisfying of the debt , in whole or in part ; which , though it be oft done by a second process , yet may be a distinct member of the first , or by way of special charge , in the discussing of a suspension , raised by the tutor against creditors , on that or other grounds . but the tutors oath was not sustained , to prove against the pupil , an agreement made by the defunct , though there were concurrent probabilities , and testificates , december . . eleis contra eleis ; yet the tutors oath was sustained against the pupil , as to the tutors intromission , in name of the pupil , that being factum proprium , oblieging also himself , and yet he was not holden as confest , as being a party , but was compelled to depone by caption , june . . mr. walter cant contra james loch . . the last duty of tutors , is to make an accompt , and to restore , and refound , wherein they will be lyable to accompt , and satisfie for the pupils whole means and estate , not only for their intromission , but for their omission , and for such diligence as they use in their own affairs , which seems sufficient in tutors testamentar , seing the office is gratuitous , and free , and not sought by them , but in tutors of law and dative , who ordinarily seek the office , and offer themselves , both the diligence accustomed by provident men , and such as they use in their own affairs , may be justly required . by the law , all tutors were lyable , pro dolo culpa & negligentia , l. . de administratione & periculo tutorum , &c. . that tutors are lyable , not only for what they did intromet , but what they might have intrometted with by diligence , and particularly of rents of the pupils lands , wherein his predecessors died , infeft and in possession , though the pupil himself was not infeft , was found january . . commissar of dunkel contra abercromby . yet a tutrix found only lyable for her intromission , in respect she continued but some moneths , and the place where the minors goods were , was infected with the plague , hope , de tutoribus , william contra allan cathcart ; neither was a tutor found lyable for a sum due to the pupil , as not doing diligence by horning and caption for uplifting thereof , unless it were alledged , that by diligence he might have recovered it , and that the debitor was become worse , july . . hamiltoun contra hamiltoun . the like , where the tutor offered to prove by the neighbourhead , that the debitor during his tutory , was repute and holden insolvent , february . . watson contra watson . . contutors , both by the civil law and our custome , are lyable , in solidum , and so some of them were decerned for the whole , though the rest were not conveened , february . . davidson contra jack ; they were also found lyable , in solidum , though they had divided the tutory among themselves ; but if the same were divided by the testatour , or a judge , the tutors are only lyable for their share , and not for the rest , unless they have by fraud and supine negligence , omitted to pursue the other suspect tutors to be removed , l. . cod. de dividenda tutela . the benefit of the order of discussing , competent of the law , whereby the tutors who did administrate , were only lyable for their parts , primo loco , if the rest were solvendo , l. . c. de dividenda tutela , and that they should be first discust , who had administrate and intrometted before them , who had neglected or forborn , ibid. these , our custome followeth not ; yet a tutor was not found to have interest , to cause the con-tutors find caution to warrand him for their acting without him , or against his mind where they did out-vote him , or else to quite the tutory , but was left to his ordinary course , to remove them if they malversed , june . . mr. james stirling contra his con-tutors . tutory is finished , first , by death either of tutor or pupil . secondly , by the marriage of a tutrix testamentar , which no provision , even of the testator can dispense with . thirdly , by the tutors renouncing the office ; after which , though he were tutor testamentar , he cannot resume the office , july . . campbel contra campbel ; but forbearance for six or seven years doth not extinguish the office of a tutor testamentar , by the former decisions . the like , december . . auchterlonie contra oliphant . fourthly , by fury , lethargy , or any natural defect of the tutor , rendring him unable to exercise his office. fifthly , and most ordinarily , by the pupils running his pupilarity , which in men is fourteen years , and in women twelve . but if the tutors continue to act till majority , they are lyable as curators ; yet the express appointment of the defunct , that the tutors continue curators , cannot extend the tutory after pupilarity , or hinder election of curators , february . . harper contra hamiltoun . tutors or curators appointed to furious persons , their office ceaseth , when the fury fully ceaseth ; for though they have lucide intervals , in which , acts done by them , without their tutors , are valide ; yet their tutory ceaseth not , as to the acts done in their furiosity . . the tutory appointed to idiots and furious persons , is prescribed by act of parliament , . cap. . whereby the nearest agnats or kinsmen of natural fools , idiots , or furious persons , should be served , received , and preferred to their tutory and curatory , according to the common law ; where , by the common law , the civil law is understood , and though the act seems only to hold out tutors of law , where any are served ; yet seing it is according to the disposition of the civil law , it excludes not tutors testamentar , during such persons pupilarity , nor tutors dative , if the nearest agnat serve not : but ordinarily the tutors of idiots , are the tutors of law. this act by custome is extended to deaf and dumb persons , though they be not expressed who have tutors in the same manner , albeit they have sufficient judgement , since they cannot act by it . . when tutory is ended , whatsoever the tutor acted in name of the pupil , the pupil hath thereupon action , as if it had been done by himself , l. . ff . quando ex facto tutaris , so whatever was decerned against the tutor , hoc nomine , ceaseth when the tutory is ended , l. fin . c. de per. tut . and the action is competent against the pupil ; as likewise , if the pupil be advantaged by the fraud of the tutor , he may be therefore conveened , l. . ff . quando ex facto tutoris . . lastly , tutory ceaseth by the action of removing suspect tutors , which is a popular action competent to any , l. . § : . ff . . inst. de susp . tut . but ordinarily , it is done by the overseers , mothers , or friends of the pupil , or by the other tutors : the grounds thereof , are not only his malversation : and it was found a malversation that the tutor had not made inventar , conform to the late act of parliament , july . . mr. alexander gibson contra lord dunkel and sir james thomson ; but any thing incident , or appearing to weaken his trust , as if he become insolvent , or his cautioner become such . after tutory is ended , the tutor hath no action against his pupil , ante redditas rationes , till he make his accompts , july . . mr. james cranstoun contra earl of wintoun : neither hath the tutors assignay , action against the pupil before the tutor compts be made , albeit assigned to a liquid sum , unless the assignay had found caution for the tutor , january . . mr. james ramsay contra earl of wintoun . neither for the same reason had the tutors assignay , action against the pupil as heir to his father , though it was ten years since the pupilarity past , july . . spence contra scot. but a tutor was not found lyable for the services he got of the pupils tennants in kind , january . . grant contra grant. yea , a tutor having counted , and given bond for the ballance , being charged with other articles , though these were not instantly liquidat , yet the extract of a decreet upon the bond was stopped for a time , till the additional articles should be closed , but the bond was not reduced , as being in confinio minoris aetatis , & anteredditas rationes , december . . mr. george scot contra mr. john elleis . in the tutors accounts , it was a sufficient instruction of an article of the charge , a bond due to the defunct , produced by the pupil : nor was the tutor liberat , upon alledging he knew not of it , but it was presumed to have been in the charter chist , unless the tutor could instruct , that he had made search of the charter chist , and neither found this bond , nor any inventar relating thereto ; but the tutor was found lyable , though the sum was lost by the debitors becoming insolvent during the tutory , june . . william cleiland contra laird of lamingtoun . neither did a tutor get any further allowance for his pupils maintainance , then the annualrent of his stock , though he expended more , november . . william sandelands contra patrick tailziefer . . the reciprocal duty of pupils to tutors after their tutory is ended , is to restore and make up to them whatsoever they wared out profitably , or is so wanting to them by that office , wherein the expences of obtaining the tutory it self , will be a part , nic. de tut . charters contra mcmillan . but tutory being a free gratuitous office , the pupils are not lyable to their tutors for any allowance , sallary , or satisfaction for their pains , but only for their expences , nic. de tut . tutors of bucleuch contra earl of bucleuch . . curatory hath such a resemblance with tutory , that though the constitution of curators be not of the law of nature , which leaveth all persons of discretion free , but of positive law , whereby a way is provided for the levity and facility of minors ; yet to shun repetition , it will be most proper here to annex that office , and the obligations therefrom , arising betwixt curators and minors ; and in these , we shall touch the difference betwixt tutors and curatours , supposing the rest as common to both , which is chiefly in these points . . first , in the election and constitution of curatours , which is done by way of process , at the instance of the minor , before any judge ordinary whatsomever , whereby he citeth two or three of his nearest kinsmen , on both sides , upon nine days warning , to hear curatours chosen , parliament . cap. . and all others having interest , generally at the mercat cross , to hear and sec , curatours decerned to him , and it is in his option whom to choose , as it is in their option also to accept , or refuse , he may also make any number a quorum , or adject auy condition he thinks fit in their election , and the parties compearing , must accept and make faith , de fideli administratione , and find caution ; yet where some of the curators elected , made not faith , but all finding caution , the curatory was found valid , hope , curators paterson contra wishart ; their acceptation must be by subscribing the act of curatory , specially , if the election be in an inferiour court ; for want whereof , an act of curatory before the bailiffs , was found null , hope , curatory , sibbald contra hay and lindsay . curatours also may be chosen by procuratours , without the minors presence , so that the procuratorie expresse the curatours names , hope , curatours , marquess of hamiltoun contra his curatours ; yea , being done in england , according to the custome there , it is sufficient to authorize the minors here , hope , tut . posso contra nasmith . though the minor may choose curatours when he pleaseth , yet may he not choose rebels unrelaxed , if it be objected , and verified at the election by his friends , july . . corbet of arbel contra . curatours are of two kinds , ad lites , and ad negotia ; the former are appointed for authorizing judicially in process : the other are mainly for extrajudicial affairs ; curatours , ad lites , are so far necessary , that they must be given by the judge ordinar , before whom any action is pursued , for authorizing of the minors , either passive or active ; and they will be given upon the desire of the other party . their office seems to reach no further , than to faithfulness and diligence in the processes , whereunto they are elected . there are sometimes , curatours named to pupils , to supply the defect of their tutors , as if their tutour be concerned , or be absent or uncapable to act for a time . these , though for a distinction from tutors , they be called curatours , yet their office , pro tempore , is of the same nature with tutors . . curatours , ad negotia , are free , and in the minors option , in so far , that a son being minor , and choosing curators without the fathers consent , but with consent of his mothers father , the curators were preferred to the father as lawful administratour ; but here the father was known to be a weak person , and to have controversies with his son , nic. de tut . laird of barganie contra his son. and curatours must be freely chosen , that though the minors father named his tutor expresly to continue till the pupils majority , their office was found not to hinder the minors to choose curatours , or to disown his tutors after his pupilarity , february . . harper contra hamiltoun . minors having chosen no curators , are in the same condition ; for extrajudicial acts allone , as if they had curatours ; in either case , the deeds are revocable , and reduceable upon enorm laesion . . but if once they choose curators , all deeds done by them , without consent of their curatours , are eo ipso , null by exception , without necessity , to 〈◊〉 lesion , december . . maxwel contra earl of nithisdail , and that so exactly , that the minority was counted , de momento in momentum , though the minor wanted only twelve houres of twenty one years , june . . drummond contra laird of cunningham-head ; and this extended to a judicial act , whereby the minor acted himself cautioner , hope de minoribus , paterson contra wishart : and extended also to a minors service , without consent of curatours , and that by exception , without instructing lesion , spots . de mino . simpson contra laird of balgane , and to a tack taken by the minor without consent of curatours , hope , de minoribus , seaton contra laird of caskiben , and extended to deeds done by minors in their fathers family , without their fathers consent ; and so it was found , that a minors bond subscribed cautioner , with , and for his father , was null , and that his father , as lawful administratour , could not authorize him to be cautioner for himself ; here the minor was a student at law , but intertained by his father , and not forisfamiltat , december . . sir george 〈◊〉 contra fairholme . december . . inter eosdem , yet the deed was sustained , being a bond of borrowed money , the creditor proving by witnesses , that the sum was converted for the minors use profitably , december . . gordoun contra earl of galloway ; this is according to that 〈◊〉 ground of equity , nemo debet ex alieno damno lucrari ; hence follows , minor tenetur in quantum locupletior factus ; but though there was some onerous cause of minors deeds , yet unless it were liquid , as delivery of money , it is not receiveable by way of exception , or reply , but only is reserved to the creditor to pursue , as accords , and the minors deed found void notwithstanding , december . . maxwel contra earl of nithisdail : but this was not extended to necessar furnishing of cloathes , taken on without consent of curatours , which was sustained by reply , february . . john inglis contra executours of john sharp . . the civil law seems not to extend the consent of curators , as necessary to concur with the minor , making his latter will , but only to deeds among the living ; because law hath rejected all ties and hinderances of full liberty , in testaments of defuncts in the disposal of their goods ; and therefore , if a minor having curators , do in his testament say quaestionem curatoribus meis , 〈◊〉 faciat eam nam ipse tractavi ; in that case , curatours are lyable for restitution of what they have of the minors goods by fraud , but not for a compleat diligence , l. . § . . ff . de liberatione legata . and by our custome , minors having curatours , may test without their consent ; and therefore a minor , making his curator his executour , and universal legatar though the minor was with the curator , when he tested and died shortly after , and his nearest relations were not acquainted , whom he had named in a former testament , it was sustained here no threats nor importunity was alledged , november . . stevinson contra allans . there are other two priviledges of minors which cannot be so conveniently spoken to , as in this place ; the one is , that minors are restored against deeds done by them in their minority , to their enorme lesion . the other is , minor non tenetur placitare super haereditate paterna . as to the first , minority and lesion , are the ordinary ground of reduction ; but because they are facti , and abide probation , they are not receivable by exception , if he who pursues the minor , can instantly instruct his pursuit ; but if he take a term to prove , the minor may take the same term to prove his minority , which doth not acknowledge the libel , or free the pursuer from probation thereof : or if the minoritie be instantly verified , as sometimes it is by sight of the minors person . there is no difference as to the restitution of minors , though the deed be done with consent of curators ; nor did it exclude a minor , because his pretended curators had received the money in question , and so were liable to the minor for misimploying it , as behaving themselves as curatours , upon pretence that his lesion could not be known , till they were discust , they not being in this process , july . . lord blantyre contra walkinshaw . but this remeid is not competent for every small lesion , but it must be enorm , which is , in arbitrio judicis . neither is a minor restored against lesion , which falls not by levitie , but by accident ; as by ship-wrack , the minor being a trading merchant , hope , de minoribus , william edgar contra executours of edward edgar : neither because he was bound conjunctly and severally for ware , with another merchant , who was in society with him in trading , june . . george galbraith contra patrick lesly , because trading merchants , and others exercising trade , requiring peculiar skill , capacity and understanding , are held rather to design to deceive , then to be deceived , as was found , in the case of a nottar publick , july . . gardner contra chalmers . neither was a minor restored upon his judicial confession upon oath , upon point of fact , and swearing never to come in the contrair , november . . mr. thomas hope and mr. thomas nicolson contra mr. james nicolson . neither was a minor restored against his promise upon oath , to quite twentie chalder of victual , provided to him by his contract of marriage , as not lesed by keeping his oath , which is conform to the authentick sacramenta puberum , november . sir robert hepburn contra sir john scatoun . and it was found relevant against restitution of a minor , of a bond granted for a debt of his fathers , whom he represented not , that he swore to perform the same , february . . mr. george wauch contra bailzie of dunraget . but a minor hath not the priviledge to reduce a disposition of land , without authority of a judge , as in the case of pupils , unless he also alledge lesion , february . . sir john hamiltoun contra john sharp . the like , though the minor had no curatours , december . . janet 〈◊〉 contra stevenson . neither is restitution competent , unless reduction be intented within the age of twenty five compleat ; for with us , majority comes at the age of twentie one compleat ; and there are four years allowed to minors to intent reductions , which therefore are called , anni utiles nicolson , de minoribus , james goodlet contra doctor austine and others . laird : of craigie contra dunbar . a minor was restored against his contract of marriage , wherein he was oblieged to infeft his first born son in fee of his whole estate , which was very considerable , having gotten but ten thousand merks of tocher , march . . laird of barganie contra his son. the like , where a minor getting but a thousand merks of tocher , provided five thousand merks to his wifes father , in case of no succession , but not restored against that part of his contract , providing all his means acquired , and to be acquired in liserent to his wife , june . . alexanderi donaldson contra and a minor woman was restored against the exorbitancies of her contract of marriage , november . . margaret mcgill contra riven of gairn ; but here , she was only restored to a suitable liferent , but not against that provision in her contract , providing her lands and sums to the heirs of the marriage , 〈◊〉 failzieing , to the mans heirs . the like , as to the heirs of a woman , who had land worth twelve hundred merks yearly , the husband being of a more honourable birth , nicolson , de minoribus , slemen contra ker. the like , where the wife disponed her lands to her husband , whose means were altogether unanswerable , spots . husband , fleming contra mr. robert hog . minors are also restored against judicial acts to their lesion , as against a decreet of exoneration of his tutors , with concourse of his curatours , before the lords , in foro contradictorio , december . . william stuart contra robert stuart , hope , universal and lucrative successour , knows contra knows and watson , and against a defence proponed by an advocat , without special mandat , which did homologat a deed in minority , february . . duke and dutchess of bucleuch contra earl of tweeadale , in which case , it was found , that accepting an illiquid right , for a liquid , was no enorm lesion inferring restitution . but restitution is excluded , si monor se majorem dixerit , nam deceptis , non decipientibus jura subveniunt ; as where the minors bond bore expresly , that he was major , and that the creditor knew not he was minor by his aspect , or otherways ; nor did fraudfully induce him to insert his majority , february . . kennedy of achtifardel contra weir ; it is also eleided , if it be proven , that the deed in question was profitable , as that the sum in question was wared upon the minor for meat and cloathes , though his father gave him a sufficient allowance , seing he was then abroad from his father , hope , minority , hendry creich contra hendry walker . it is also eleided by deeds of homologation , after majority , july . . gaindner contra chalmers . the like , though the annualrent was payed upon a charge , july . . johnstoun contra hope . but where majority was alledged against a minors restitution , neither party was preferred in probation , but witnesses allowed , hinc inde , february . . farquhar of tonley contra gordoun . but lesion needs not be proven by the minor , granting bonds of borrowed money , for the misapplication is presumed , unless the contrary be proven . this priviledge is not only competent to the minor himself , but to his heir , who if he were minor , may reduce the deed done in his prodecessours minority , during the time of the heirs minority ; and also , during so much of the quadriennium utile , competent to the defunct minor , as rested the time of his death . but he cannot claim both the rest of his predecessours quadriennium , and his own quadriennium , after his majority , but only the rest of his predecessours quadriennium , march . . 〈◊〉 contra barron of brughtoun ; whence it is consequent , that if the heir succeeding be major , and quarrel his predecessours deed , as in minority , he hath quadriennium utile , to intent reduction , except in so far of that quadriennium as was past before his predecessours death ; but he hath not the time of his predecessours minority , which was peculiar , and only personal to himself , but only the quadriennium utile , competent after majority , which the law hath allowed , as a competent time to search out and raise reduction of deeds done in minority ; yet if a deed were fraudulently keeped up and concealed , during the quadriennium utile , it might be reduceable , ex capite fraudis . minority and lesion was also found relevant at the instance of a minors creditors , seing the minor , intra annos utiles , had intented reduction ; nicolson , de temporibus in integrum restitutionis , sir john hamiltoun contra mr. john sharp and others . but the priviledge of restitution is not competent to minors upon revocation , unless they intent reduction , & declarator intra annos utiles , which was found to hold in the kings revocations , as to lands not annexed , spots . revocation , pringle contra ker. this other priviledge of a minor , is , quod non tenetur , placitare super . haereditate paterna ; which , though it be not peremptorium causae , delaying only pursuit , till majority ; yet there is no necessity to verifie it instantly , but a term will be granted to prove the same , february . . heleson kello contra alexander kinneir . the priviledge is introduced in favours of minors , that they be not put out of their fathers heretage , whereof he died in peaceable possession ; for though their priviledge of restitution might recover such rights by reduction , yet the minor would lose the fruits and profits , medio tempore , and untill their rights were produced , and made clear in reduction , which might be of great importance to them ; for if a minor of a year old were dispossest of his fathers inheritance , he would lose at least twenty years fruits of it ; and therefore , the law hath introduced this priviledge in favours of minors , besides the priviledge of restitution , wherein minors are not in contradistinctione , to pupils : but the priviledge is chiefly competent to pupils ; and though it bear only , de haereditate paterna ; yet thereby minors succeeding immediatly to their grand father , or other predecessour , who died in possession , it is not like the priviledge would be denyed to them , though i have not found it controverted or determined ; seing the law , under the name of father ; doth ordinarily comprehend grand-father , great-grand-father , and all predecessours in direct line , who come all under the designation of forefathers , as all successours in the right line , come under the name of children . but the law indulgeth this favour only as to the heretage of fathers ; and therefore , neither the style nor custome hath extended it to collateral succession , as to brothers or uncles , wherein minors , if they be excluded , can only be restored by minority and lesion , so soon as their predecessours , or authors rights can be found . neither was ever this priviledge extended further , than to minors in possession of the heretage of their fore-fathers , who died in peaceable and lawful possession , and to whom the minor immediatly succeeded ; for there is no priviledge to possession , vi , clam , aut praecario ; though law or custome hath not determined , how long possession of the defunct is required , to exclude clandestine or momentany possession ; but the continued possession of the defunct with his author , may be accounted sufficient , or the defuncts possession by a liferenter , whose right is granted by him , or reserved in his right , but not to the possession of singular successours , by redeemable rights , as wodsetters or apprizers ; neither hath there been any exception made of the pursuits , at the instance of minors against minors , as being both priviledged ; there being no parity in recovering , and retaining possession ; but where a minor was put from possession by a decreet of removing , obtained by a minor from lands , wherein her father and her self were infeft , and in possession , she was not excluded to reduce that decreet of removing , upon the minority of the other minor , whose father died not in possession , june . . sara leyel contra dons . this priviledge will not only exclude possessory judgements , such as removings , or mails and duties , but also declarators or reductions ; as to which , it hath been variously decided , whether it should stop certification , contra non producta , especially in the case of improbation ; and though it cannot exclude improbation , where the writes are produced , or where they are in the hands of the minors , and his tutors and curatours , if that shall appear by their write or oath : yet where the minor produced his fathers infeftment , and proved his fathers possession , he was found obliged to produce no farther , january . . heleson kello contra pringle and the laird of wedderburn , so that it cannot defend simply against production : but if it could not defend against production of any further , but the fathers infeftment , and that certification in improbations would be granted in all other rights , if these certifications should take effect , the priviledge might be wholly evacuat ; and if they should take no effect till majority , certifications in improbations should not be granted , being hardly reducible , even though in absence . and though it was not sustained against production in a reduction , november . . guthry contra laird of guthry ; yet in that case , the minors right was only an appryzing at his fathers instance , upon which his father was never infeft . this being a feudal priviledge , whereof there is no mention or foundation in the civil law , it is only competent to minors , whose fathers were in possession by vertue of infeftment , as in the former case of appryzing , or where the father had a disposition without possession , january . . heleson kello contra pringle . but the want of infeftment of the fathers author , was not found relevant , january . . barbara chapman contra john white . neither will this priviledge exclude the fathers obliegement , to denude himself of the infeftment in question , spots . minor , john hamiltoun contra for there there is no competition of rights , but implement of an obliegement ; and so it was not sustained in a reduction upon a clause , irritant in a few , hope , de monoribus contra mitchel : neither to exclude reductions ob non solutum canonem , by the father , though the few contained no conventional clause irritant , february . . lennox contra 〈◊〉 : neither did it exclude the probation of the tenor of a charter , which might exclude the minors right , february . . master of jedburgh contra earl of home , albeit it would exclude process upon that charter . neither doth it exclude processes in relation to marches , perambulation , or vision of lands , july . . robertson of inveray contra gilbert stuart . neither did it exclude the nullity of a disposition by a wife to her husband , dying within the year , february . . mary gordoun and her spouse contra captain robert maxwel . but the priviledge was found , not only competent to defend minors in their property , but in their commonty , hope , de minoribus , contra mitchel . where reasons of reduction are probable by witnesses , so that the probation may perish by delay , witnesses are always received to remain , in retentis , january . . kello contra pringle . february . . mary gordoun and her spouse contra captain robert maxwel . where the interest of minor is not the chief right , but a majors right , whereby the minors would fall in consequence , the process doth proceed , but the minor is held as not called , november . . hamiltoun contra matheson . spots . minors , hamiltoun contra chrysty . or where a major liferenter is called with a minor fiar , the process proceeds against the liferenter ; but the minor is as not called , march . . alexander bamanno contra zule . july . . james borthwick contra janet skein . this priviledge is not relevant against the faults of the father , or his authors , as to his possession or right ; and therefore , it will not defend against forefaulture of the fathers authour , whereby the fathers right fell in consequence , spots . minor , james 〈◊〉 contra galstoun . neither against recognition , february . . lady carnagy contra lord cranburn . neither will it defend against the superiour , or his donator , pursuing for any casuality of his superiority . . curatours differ in their office from tutors , mainly in this , that tutors are given chiefly for the pupils person ; but curatours are given for the right managing of their goods and affairs . secondly , tutors act for , and in name of their pupils , who , in their pupilarity have no discretion ; but curatours cannot , and are only oblieged by their office , to authorize their minors , and act with them , by consenting to their deeds ; for instance , curatours cannot discharge for their minors , but only consent to their minors discharge ; and so fathers , after their childrens pupilarity , june . . forrester contra forrester . january . . mckintosh contra frazer of strichen . . their duty is to see to the minors affairs , that they get not detriment , and so they must answer , not only for the deeds , whereunto they consent ; but for their omission , and for any detriment the minor suffereth by their negligence ; and therefore a curator was found lyable for intromission and omission , albeit the act of of curatory , did not bear , that he compeared and did find caution , seing he accepted thereafter , by subscribing a write with the minor , as his curatour , which was found to obliege him , from the time of the acceptance , november . . charles calsie contra james elleis . but curatours continuing to uplift their minors rent , after majority , were found not lyable for omissions these years , unless they had a distinct factory continued , per tacitam reconventionem , ibidem ; and therefore , they must not only be councellours to the minors , showing them what they ought to do , and requiring them to do the same ; but specially , they must cause them constitute factors , and grant procuratories to persons , for uplifting their money , whether it be the stock of that which may be in hazard , or annualrent , or rents ; and to grant procuratories for pursuing their actions , and putting them to execution , for seing they must be countable , they must not suffer the minor to have his own goods , and his own money in his own hand , lest he lose and mispend them ; these procuratories may be given to some of themselves , and in many things , their very office includes a procuratory , being less then curatory ; but though they may intromet with the pupils means themselves , yet they are not oblieged to be servants or factors , but may authorize such , being lyable always , that they acted therein profitably ; but if the minor will not authorize such , nor do these deeds needful and profitable for his affairs , the curatours may crave to be exonered ; so they may also do , if he meddle with his own means , and will not be restrained , or if any of the other curatours act unprofitably , or without consent of the rest , the curatours must do diligence to remove them , as suspect and malversant : curatours are to recover that which was unwarrantably meddled with ; otherways , they are lyable , not only for their own omissions , or intromissions , but for the other curatours , and so are all lyable , in solidum , as hath been said of tutors , february . . guthrie contra guthrie ; and they are lyable for annualrent of minors means , as tutors are , february . . francis guthrie contra guthrie ; yea , their heirs , though minors for the time , after expiring of the tutory , ibid. where the curatours heir are found liable for the annualrent of a sum consigned to the minor : but curatours expresly chosen with a quorum , and with this condition , that they should be only oblieged for deeds , whereunto they consented , and be free of omissions , were so approven by the lords , during their office ; and though the minor acted deeds very prejudicial with any other quorum , yet the rest were not freed , nor acquited of their office , as not being in hazard by these deeds , nic. de tut . clerkingtoun and scots tarbet contra earl of bucleuch and his other curatours . but where the act of curatory bore , that the curatours were named jointlie , or three of them to be a quorum , two only accepting the curatorie , was found null , january . . sir james ramsay contra maxwel . but where they were not named jointly , the death of one did not anul the curatory , january . . fairfowl contra binning . and though there be a quorum constitute , all the curatours are lyable for diligence ; and if any quorum act hurtfullie , they must crave them to be removed , and what they have so done , to be restored ; and curators are not simplie liable for all their pupils means , which may be lost without their fault , neither to do diligence in all cases , but where diligence might be profitable , as hath been said of tutors . curatours being elected by authority of a judge , cannot be liberate by the minors consent . neither did a decreet against a minor , on his consent , liberate curatours from their office , july . . scot of broad-meadows contra scot of thirlestoun . . curatours are appointed in the law , not only for that ordinary levitie and weakness , incident to minority , which therefore runs only to twentie one years compleat , at which time , by our custome , minoritie endeth ; but also , in case of known or conspicuous levitie , though after majoritie : such were the curatours of prodigals , to whom , as to furious persons , curatours were constitute , their nearest agnats ; instead of this , our custome hath interdictions , whereby persons acknowledgeing their own weakness and levitie , and readiness to hurt themselves ; do therefore bind themselves , that they shall not act without the consent of these persons , interdictors therein mentioned , who thereby become as curatours , though they be not oblieged for intromission , or omission , but only to consent with the persons interdicted , and for their fraud and fault in consenting . . interdictions are most fitly made , judiciallie upon cognition of the cause ; by which , after trial , that the person craving to be interdicted , acknowledging his own lavishness and prodigality , interdictors are appointed by the judge competent , and that either , at the instance of the partie himself , or of his friends ; yea , the lords , ex proprio motu , did interdict a person , who was evidently lavish , and had thrice made opposite rights of the same subject , and that incidenter , in an other process , where his levitie did so appear , february . . william robertson contra gray of shivis . that this is the genuine way of interdictions , is clear by the narrative of the act of parliament , . cap. . and therefore , an interdiction was reduced , only because it was done , sine causa cognita , hope , interdictions , john robertson contra 〈…〉 but there has not been a just ground for the interdiction alledged and instructed . . the more ordinar way of interdictions , is of consent , whereby the person interdicted , acknowledging his own lavishness , doth , by a write under his hand , interdict himself , and this is reduceable , if the narrative was not true ; but the person interdicted , was prudent and provident , december . . campbel contra laird of glenurchy . and december . . geichan contra hay and davidson . the like , thought by the lords , but came not to a decision , february . . forbes contra forbes . interdictions use also to be in the way of obligation , not to contract debts , or dispone lands , without consent of such persons , and inhibition registrate thereupon , which was sustained , though not in the ordinar stile of interdiction ; the person oblieged being known unsufficient to mannage his own affairs through levity or prodigality , november . . stuart contra hay of gourdie . but a bond bearing , that a man should not sell or dispone , without consent of his wife , on the narrative of his facilitie , whereon inhibition was used , found not to be valide as an interdiction , as inconsistent , binding a man to the direction of his wife , but that it was only valide to secure the wifes own interest , by an aliment , according to her quality , as an inhibition , february . . laird of miltoun contra lady miltoun . . interdictions must be published at the mercat cross of the head burgh of the shire , where the party dwells , and within fourty days after publication , the same , with the executions thereof , must be registrate by the sheriff clerk of that shire , in the register of interdictions , and inhibitions , within the shire ; the interdiction must be also registrate , in the register of inhibitions of any other shire where the lands of the interdicted person lie ; otherwise , if it be not published , it is absolutely null , and hath no effect to lands or heretable rights in any other shire , unless it be also registrate there , parliament . cap. . yet it needs not be intimat to the party interdicted , decemb. . . hendry seatoun contra mr. alexander elleis . . the effect of interdictions by custome , is retrenched only to the preservation of heretable rights , and doth not extend to moveables , or personal execution against the person interdicted , so that he may dispone his moveables , or upon any personal bond granted by him , his moveables may be poinded , arrested , and made forthcoming , and his person incarcerate , though the stile of interdiction doth expreslie prohibite alienation of moveables , july . . bruce contra forbes . june . . thomas crawford contra james haliburtoun : he may thereupon be also denunced , though thereby the liferent fall in prejudice of the heretage , december . and february . . hay of bruntfield contra his father and sisters . and december . . lady broksmouth contra relict of gilbert wauchop . but it hath effect in favours of the heir of the interdicted person , that neither his heritage can be affected upon any obligation , granted by his predecessors , after interdiction ; neither any personal execution , by caption and horning against him , as would have been against his predecessor : but such bonds will take effect against the heir , as medling with the heirship moveables , or other moveables of the defunct ; the reason wherefore moveables are excepted , both from inhibitions and interdictions , is , because they are of less moment , and the traffick of them must be current and free ; and therefore , these remeids being but by positive law , and not by natural equity ( by which the ingagement , or disposition of any person , having the use of reason , is effectual , though lavish ) positive law prohibiteth , and voideth such only , as to heretage , as being of the greatest importance ; in which , even a tack to a kindly tennant , set without consent of the interdictours , was found null , hope , interdict . douglass contra cranstoun . but interdiction can only extend to lands , lying within the jurisdiction where it was published and registrate , but to no other lands or moveables , february . . david ramsay of torbain contra mcclellan . interdictions do not make void all posterior obligations , but only such where there is lesion ; and therefore , where there is a just and onerous cause , the obligation or deed is good , though without consent of the interdictours , july . . laird of collingtoun contra hall. november . . stuart contra hay of gourdy . . the remeid by interdictions , is only by reduction , and not by exception , or suspension , march . . john sempel contra doby . january . . hardy contra mccalla . yet interdiction is sustained by way of reply , seing the pursuer thereby doth only delay himself , february . . robert lockart contra william kennedy . it is a competent ground of reduction , at the instance of the interdicted person , his assignays or heirs : and it is also competent at the instance of the interdictours , without consent of the person interdicted , december . . lady broksmouth contra relict of gilbert wauchop . . interdictions cannot be taken off by consent of the interdictours , or interdicted persons , though they should renounce or discharge them ; but only by the act of a judge competent , finding the grounds thereof , either not true , or otherways , that the person interdicted is come to a more stable deportment , hope , interdict . george anderson contra interdictours of william craig , december . . gichan contra hay and davidson , which is to be understood of inderdictions , laid on by authority of a judge , causa cognita . title vii . restitution . . restitution of other mens goods , a natural obligation : . restitution is not solely an effect of property . . restitution of things straying , or waith and lost . . restitution of things , bona fide , acquired , not from the right owner . . restitution of things recovered from theeves , pirats and robbers . . restitution not competent of things recovered from publick enemies . . restitution of things , quae cadunt in non causam , causa data & non secuta . . no restitution of things given , ob turpem causam . . restitution of indebite soluta . . restitution reacheth also the fruits not consumed . . restitution is grounded on having , and that ceasing without fault , the obligation of restitution ceaseth . . bonae fidei possessor facit fructus consumptos suos . . restitution by heirs . . from restitution arises the action of exhibition and delivery . . thence arises division of things common without society . . the obligations whereby men are holden to restore the proper goods of others , are placed here among natural or obediential obligations ; because they are not by contract or consent , neither have they their original from positive law ; for though there were no positive law , these obligations would be binding , and they are obligatory among persons , who are not subject to one positive law ; and therefore , seing they are not obligatory , by the will or law of man , of necessity they must have their original from the authority and command of god , and that obedience we owe thereto , by the law written in our hearts . we are not here to speak of the obligations of restitution , which are by any voluntar ingagement , or which are by delinquence ; but of these only , whereby that which is anothers coming in our power , without his purpose to gift it to us , and yet , without our fault , ought to be restored , as things straying , or found , or recovered from pirats , thieves , &c. or bought , bona fide , or the like . . restitution of things belonging to others ; may seem to be an effect of property , whence cometh the right of vindication or repitition of any thing ; but beside the real action , the proprietar hath to take or recover what is his own , which doth not directly concern any other person , and so being no personal right , hath no correspondent obligation upon the have of that which is an others , to restore it . there is a personal right , which is a power in the owner to demand it , not only when it is in the possession of the haver , but if he bath fraudfully put it away ; and yet it is his once , having it that oblieges him , and his fraudulent away-putting , though it be a delinquence , yet it gave not the rise to the obligation , but only continues it in the same condition , as if he yet had it ; so in that case , his obligation is more palpable , for vindication of the thing , where it is not , cannot take place properly . the learned grotius , de jure belli , l. . cap. . maketh such obligations as arise from dominion and property , to be by tacit consent , or contract , whereby the nations , who have agreed to appropriat things common to men , have thereby also tacitly agreed , that each man should restore what is the property of an other ; yet this will not hold , if we consider , that though for the most part , property be by consent ; yet in many things it is without consent of the simple law of nature , as things which have their specification from their owner , his skill and industry , and others , as will appear in its own place ; and therefore , it is most just and sure , to attribute such obligations to the law of god written in our hearts , rather than unto any other conjecture of supposed consent . to this agreeth the roman law , which holdeth these obligations not to be ex contractu , sed quasi ex contractu ; neither doth account them obligations , ex lege , and if they were of tacit consent , these obligations were ex contractu . . there is many ways by which the things of others may come to our hands , without our fault or delinquence ; as first , things straying , concerning which , the lord hath ordained , deut. . vers . , , . to bring again unto their brethren that which went astray , and if he were not near , to keep it till he sought after it , and then restore it ; and to do so with all things lost by him , wherein there seemeth something to be admixed of positive law , as the taking of it home to him , or keeping of it for his brother ; whereas the simple natural obligation of restitution , oblieges to no duty of custody , or pains , but only not to conceal that which is an others , and to restore it , when demanded ; and such is the custome of scotland , that waith or straying goods must be proclaimed , and intimate to be waith ; and if the owner make them appear to be his , he may have them , satisfying for what was wared upon them , for their preservation , as orass , &c. and if none appear within such a time , custome hath added , that waith or strayed goods become publick , and escheat to the king , or others to whom he hath disponed , or committed that power ; and this intimation is so far requisite , that if the goods be medled with , or disposed of otherways , it is theft ; but though the publication maketh the goods publick , and the medling therewith to be without fault , so that if there do never any owner appear ; the things do become really and absolutely publick , and they do not become the possessours by that ancient law , quod nullius est sit occupantis , which takes place amongst us , in things which were never known to have an owner , as pearles or stones , found on the shore , and many others ; but therefrom are excepted waith goods , and goods by shipwrack , which become escheat as publick . secondly , things lost , of which we see the rule for israel , deut. . how far they may be possessed without delinquence ; in these , our custome agrees with the roman law , and other nations , except in the matter of waith and wrack goods , of which before ; that such things being not concealed , may remain with the possessours , and if none claim , they become their own , and they may dispose of them , if they cannot be conveniently preserved without hazard . . thirdly , things belonging to others , coming to our hands without delinquence , when we acquire , bona fide , either the property , use , or security thereof , by pledge or depositation ; in which cases , we are bound to restore to the owner , though thereby we lose what we gave , except in some cases , wherein positive law secures the buyer , and leaves the owner to seek the seller . this restitution takes place , notwithstanding any obliegement in the contrair ; and we have an excellent species in law , l. bona fide , . ff . § . depositi , a robber , depositat with seius , that which he spoiled or robbed from mevius , to which is seius oblieged to restore , if he look only upon his ingagement , truely to the robber , but if upon the whole matter , certainly to mevius ; for the precept of law is , to render every thing to the owner ; and therefore , no promise or ingagement can here prevail against the natural obligation of restitution , because that being natural and indispensible , the ingagement , whether ignorantly or willingly made , to restore that which the ingager knows to be anothers , is a delinquence , inferring punishment for ingadging , but no obliegement to perform ; so also , he who ignorantly takes in custody , or pledge , that which is his own , though thereby he promise to restore it , yet his obligation being by errour in the substance of the contract , makes it void , and he may retain or recover it as his own . . fourthly , things recovered from thieves , robbers , or pirats , are lyable to this obligation of restitution , wherein these things may be lawfully detained for the expenses and labour in recovery , especially if the labour was undertaken of purpose , to recover such things , and if it was but by accident , the recoverer projecting some other thing , the satisfaction is due , as a remuneration of the trouble and pains which it might have cost the owner in the recovery , which , with the expenses following thereon , being saved to him ; he ought to recompense the profit accressing to him , to the authour thereof . the doubt remaineth greater , whether what enemies having possest , being recovered by a nation or party , ought not to be restored to their proper owners of that nation who bore the equal expense of the war , and who being any way ingaged in that quarrel , cannot but acknowledge the war of their enemies to be unjust ; and therefore , as to these things , i think , that equity would require restitution upon satisfaction , and gratification of the favour received , which ought to take place , unless by the peculiar customs of nations , it hath been otherways agreed , which may alter , or derogat from this common law ; and therefore , david recovering back his wife and his spoill from his enemies , delivered every man his own , vid. tit. . rights real , § . . . fifthly , the duty of restitution extendeth to these things , quae cadunt in non causam , which coming warrantably to our hands , and without any paction of restitution , yet if the cause cease , by which they become ours , there superveeneth the obligation of restitution of them , whence are the condictions in law , ob non causam , and , causa data , causa non secuta , which have this natural ground ; and of which , there are innumerable instances , as all things that become in the possession of either party , in contemplation of marriage ; the marriage , which is the cause , failing to be accomplished , the interest of either party ceaseth , and either must restore . . but there is not the same ground for things given for an unjust cause , ob turpem causam ; in which , the will of the owner , and his purpose to transfer the property is effectual , though his motive was not good ; but positive law doth sometimes obviat the inconveniency , by such donations , and makes them void , and either to return , or become caduciary and escheat . as for these things which are attained by force or fear , they have their original from delinquence , and comes not under this consideration . . sixthly , restitution extendeth to indebite soluta , when any party through errour , delivereth or payeth that which he supposeth due , or belongeth to an other , if thereafter it appear , that it was not due to that other , he who received it , is oblieged to restore , and yet not by paction or contract ; therefore the law calleth this promutuum , vel quasi mutuum , having in it the same natural obligation , which mutuum or loan , hath by voluntar ingagement ; but here , positive law , for utility and quietness sake , excepteth transactions , which are properly such , and which are of two sorts , the one extrajudicial , when in any matter doubtful and debateable , either party to shun their hazard , and trouble of a legal decision , is willing to transact and agree , so as thereby they may quite , or abate part of what they claim as their right , and so they renounce all future question , upon any appearing of right , either judicially or extra-judicially ; and therefore , what either quitteth to other of their rights , is due , for the same cause , and hath in it , either expresly or implicitely , that that transaction shall not be ransacted upon any thing that shall accidentally appear thereafter , ( fraud only as the common exception in all humane actions , being excepted ) and therefore , such things , though they appear not to be the havers , are not to be restored . the other transaction is judicial by litiscontestation , when any cause in difference is put upon the oath of the party , or other probation , and particular diets for that effect assigned , wherein , if either party fail , he loseth what is put thereupon by his implicit consent , and when the right of any thing is referred to the havers oath , and he sweareth it to be his own , though thereafter it may be made palpably appear , not to be so , yet it will not be restored , because of the owners reference , implying that condition , that he shall stand to the oath , without questioning right or wrong , because an oath is an end of all controversie , though the swearer may be punished as a wilful perjurer : and thus , most of things that become ours , by sentences and decreets of judges , are not lyable to restitution , upon any subsequent question . there is this exception against indebite solutum , that it cannot be repeated , when the creditor gets that which is due to him , though not due by that party who payed the same , l. . c. de condictione indebiti , l. . ff . eodem , which was not found when the payment was made to an executor creditor , pursuing upon his confirmation , and before sentence obtaining payment from the debitors heir , who was decerned to refound upon a discharge of the debt , granted to the defunct debitor , whereby it appeared the debt was not truely due , but twice payed , january . . sir james ramsay contra robertsons . . under restitution do fall , not only the things of others , but their natural birth , and fruits extant , not consumed , bona fide , which are accounted as parts of the things , being accessory thereto , and belonging to the same owner , but industrial and artificial profits in so far as such as arise from the havers industry , and not from the thing , fall not under restitution , if separate . . in all these , the obligation of restitution is formally founded upon the having of things of others in our power ; and therefore , that ceasing , the obligation also ceaseth , as he who did , bona fide , buy that which did belong to an other , if while he hath it , it appeareth to be that others , he must restore it without expectation of the price he gave for it ; but as to that , he must take himself to his warrandice ( expresse or implyed ) to the seller , but if bona fide , he have sold it before he be questioned , he is free , and not oblieged to restore it , though in so far as he is profited in receiving more for it , than he gave , he be lyable by the obligation of remuneration or recompence , of which anone . and as to the fruits of that which is an others , the obligation of restitution , takes only place against the haver , where they are extant ; and therefore , where they are neglected , or being reaped , have perished ; yea , where they are consumed by the havers making use of them , the obligation of restitution takes no place , though the obligation of recompense hath place , in so far only , as by such fruits , the haver conceiving them to be his own , is gainer , and in better condition , than if he had not had them ; but if he have increased his spending , bona fide , because of his having he is free , under his profiting comes his paying of his debts , or even his benificence , where it appears he would have gifted , whether such a thing had come to his hand or not ; for in either case he is locupsetior , and must recompence ; so that if he hath sold or delivered that which was an others , and which came to him without price , he is not oblieged to restore the thing , but to recompence what he hath inriched himself by the price , and that without any question of the proportionable value of it to the thing . . in the enjoyments of fruits , the positive law of the romans , and of this , and most other nations hath not only owned what is before said of restoring , no more then that by which the haver hath profited ; but have extended this much further , for utility and common quietness sake , that bonae fidei , possessor facit fructus perceptos , & consumptos suos , whereby what fruits he who hath possessed , bona fide , hath consumed , though he have profited , and been inriched thereby , he is not oblieged to restore the same , which doth much secure and quiet mens enjoyments , that they may freely use and enjoy that , which , bona fide , they have ; and to shun the hazard of their ruine , by answering for the bygone fruits , or their great vexation in clearing , whether they be inriched thereby or not . amongst these obligations , neither by contract nor delinquence , are commonly accompted the obligations , which are incident to these who enter heirs , or are successours to others , whereby they are oblieged to perform all their predecessours obligations , and satisfie their debts , in such manner as in law is prescribed , and yet it is not by their own ingagement , nor by their fault , but by their fact of entering heirs . such also are the obligations upon executors , to satisfie the children , and relict , legatars , or debitors of defuncts , by , or for whom they are intrusted , and indeed the restitution of the relicts part , is properly such ; as also , the legatars to whom the right by the legacy is transmitted ofttimes of peculiar things ; the giving also to children , or nearest of kin , is a restitution , because the property of the defuncts goods , by his will , expressed or presumed , is transmitted to them after his death ; but for payment of the defuncts debts , they are not properly by restitution , because the debitor had no property in the goods , but an obligation upon the person , and they arise either from that natural obligation , that lyes upon children from their parents ingagement , of which before : or by the naturall obligation of remuneration or recompence , by which these successours , in so far as they are profited by the succession of the defunct , they must satisfie or recompence , and the positive law in some cases makes them lyable simply ; yet in equity they are lyable , in so far as they are gainers , secundum vires haereditatis . . in the restitution of the goods of others , though the ground thereof be the having of that which is to be restored ; yet if the haver cease to have through his own fraud , his delinquence therein oblieges him to reparation , as if he still had it , according to the maxime of law , pro possessore habetur qui dolo desiit possidere , and this extendeth not only to the thing it self , which he must restore , though he hath fraudently put it away , or at least the value of it ; but also it extends to the fruits which he hath injoyed , mala fide ; and after he knew and had intimat to him the right of another , so that such fruits must be restored , though the enjoyer become not the richer thereby . . from the right of restitution , ariseth the action of exhibition and delivery ; the exhibition is but preparatory to the delivery , that thereby the thing in question may be known to the parties , judge and witnesses ; and therefore , majori inest minus , he that hath right to crave delivery , hath much more right to crave the production , or the inspection . this action may be institute concerning any moveable things that can be conveyed before a judge , or his delegats , as if the question were of a horse , if he be extant , he may be fitly craved to be exhibit , that the witnesses may be in the clearer capacity to depone , to whom he doth belong ; but the ordinary subject of this action , is exhibition and delivery of writes , wherein the tenor and stile of the action is , that the defender hath , or had , or fraudfully put away the thing in question , his having is probable by witnesses , and relates not unto the time of probation , but unto the time of the citation ; for , if after it the defender had the thing in question , he ought to have acknowledged it ; and if he have justly or necessarily put it away , or wanted it , he ought to have pleaded that as a defence , which therefore would exeem the pursuer from probation of the libel , as being acknowledged by the defence , and so being omitted , and the pursuer proving his libel , the exception is not competent , but the defender is accompted as a fraudful away-putter after citation ; so that this defence , that the writes in question were given to be registrate , and were burnt in the tolbooth , was found relevant and probable by the members of court , january . . patrick home contra wilson . there is a second member in this action , to wit , that the defender at any time before the citation , had the writes in question , and fraudulently put them away , and is therefore repute as haver of them , both these members must be proven ; for it will not be sufficient to prove that the defender had the writes before the citation ; but it also must be proven , that he fraudfully put them away ; which therefore being a matter of fraud , concerning the mind and purpose , is not probable by witnesses , but by write , or oath of party , november . . john inglis contra gilbert kirkwood . of january . captain crawford contra laird of lamingtoun . yet if fraud otherways appear , witnesses will be admitted to prove the having before citation , that the haver may instruct that he warrantably put the same away , july . . fountain and brown contra maxwel of netheryet . but witnesses , will not be admitted to prove the delivery of any write by the granter thereof , whether it be bond or assignation , as being , chyrographum apud debitorem repertum presumitur solutum , which was sustained , as to an assignation in the hands of the granters son , who did his affairs : and witnesses were not admitted to prove that the same was delivered to the son , as agent for the pursuer , december . . anna fairly contra the executors of sir william dick. this presumption is stronger in relation to bonds , which are most ordinarily taken away , by retiring the same without taking discharge ; and therefore , being found in the hands of the debitor , or his heir , they are presumed to be satisfied and retired ; or being in the hands of a cautioner , if it appear by his oath , or other evidence , that he got the bond from the principal debitor , to take his name from it , june . . carmichael contra hay of munktoun , otherways the presumption would not hold by the bonds , being found in the hands of a cautioner , or of an executor , for whom simple retiring of the bond , will not be sufficient without discharge or assignation . exhibition and delivery is competent to any party in whose favours a write is conceived , without necessity to prove that it was delivered , for that is presumed , if the write be out of the granters hand , so that the granter is necessitat to prove , that the writ was depositat upon terms not performed ; or that it was lent , lost , stollen , or passed otherways from him , then by delivery : for prevention of which , the english custome is good , that the write bears , not only signed and sealed , but delivered before the witnesses . but seing with us , delivery is presumed , it is ordinarily required , that the granter of the write be called in the exhibition , that he may be heard to propone any thing , that may take off the presumption ; yet this will not be necessary in recovering securities of land , or other real rights , especially if the pursuer be in possession . but in several cases , writes are effectual without delivery ; as first , writes granted by parents in favours of their children , november . . bairns of eldersly contra his heir . secondly , mutual contracts or minuts , june penult . . valence contra crawford . thirdly , writes bearing a clause , dispensing with delivery . fourthly , by reservation of the granters liferent , and power to dispone , june . . agnes hadden and mary lauder contra shoarswood . the like was found lately in a disposition of some ackers of land to thomas kincaid chyrurgian . fifthly , an assignation taken by a debitor in name of his creditor , for his creditors releif , as cautioner for him , intimat by the debitor , was found effectual without delivery , january . . dick of grange contra oliphant of gask , february . . john mclurg contra william blackwood . the like was found , where the debitor took a bond in name of his creditor , which was presumed to be for that creditors satisfaction security , and not in trust , and not affectable by arrestment , for the procurers debt , before it was delivered , july . . mr. john bain contra mcmillan . but where the bond was taken blank , and arrestment laid on , before it was filled up with the creditors name , or delivered to him , the arrester was preferred , february . . campbel and cunninghame contra mr. john bain and mcmillan . delivery is not presumed of bonds of provision , to children in the family , in competition with creditors , though their debts be posterior to the dates of the bonds of provision , unless the delivery thereof be proven , anterior to the debt , otherwise creditors would be most unsecure by parents , making large bonds of provision , which they ordinarily keep by them , which will not be extended to bonds taken from debitors in the names of children , or wherein they are substitute , these not being latent , but known to the debitor ; but the simple proving the having of writes , after citation , is sufficient to infer the conclusion , unless the lawful cause be alledged in the defence and proven , and the having of writes , though of great importance , is probable by witnesses . . under the obligation of restitution , is comprehended the obligation of division , whereby what we possess in common with others , or indistinct from that which they possess , we are naturally oblieged to divide it with them , whensoever they desire to quite that communion , for thereby we restore what is their own , and we are not oblieged thereto by any contract or delinquence ; it is true , the contract for society includeth the obliegement to divide , after the society is ended ; but communion falleth many times , where there is no society or contract , as by succession , legacy , gift , &c. hence arise these three actions , frequent in the roman law , mainly , because heretage did then befall to the nearest degree of agnats , as now it doth not , viz. actio familiae hersiscundae , actio de communi dividendo , & actio de finibus regundis . the first is the division of that which falls by succession . the second , for division of that which is otherwise common . the third , for distinction , or clearing the marches of contiguous grounds . in these , either party might be pursuer , and he is held to be pursuer , who did first provoke to judgement ; but because they do chiefly concern immoveable or ground rights , we shall say no more here of them . title viii . recompence . . recompence , or remuneration , a natural obligation . . obligatione negotiorum gestorum . . actio directa & contraria de negotiis gestis . . the diligence of negotiators . . the natural obliegement to recompence , in quantum locupletiores facti sumus . . actio de in rem verso . . relief due to these who satisfie obligations , whereby more persons are lyable , in eosdem . . the obligation of remuneration , or recompence , is that bond of the law of nature , oblieging to do one good deed for another , and it comprehends , first , all obligations of gratitude , which are generally acknowledged by all nations , and the breach thereof is abhorred , si ingratum dixeris , omnia dixeris ; yet because the complaints of ingratitude , are so frequent and unclear , every one esteeming highly of the demerit of his own actions ; therefore most of them are laid aside , without any legal remedy ; for that which is done , animo donandi , though it doth induce an obligation upon the mind and affection of the receiver to be thankful ; yet doth not bind to the like liberality , in case of necessity , but in few cases ; as a master , gifting liberty upon this ground , did put an obligation upon the servant , who thereby became free : whence also arose that right of patronage , of which before . but that is rather by a positive law , and tacit consent , as a condition implyed in the gift : so also in every gift , there is a correspondent duty of gratitude ; and therefore , by ingratitude the donation becomes void and returns : but the matter is more clear when the good deed is done , not animo donandi , but of purpose , to obliege the receiver of the benefite to recompence . such are obligations , negotiorum gestorum : and generally the obligations of recompence , of what we are profited by the damnage of others , without their purpose to gift ; or as the law expresseth , in quantum locupletiores facti sumus ex damno alterius ; it is a rule in law , donatio non presumitur ; and therefore , whatsoever is done , if it can receive any other construction then donation , it is constructed accordingly . whence ariseth that other rule of law , debitor non praesumitur donare ; so that any deed done by the debitor , is either presumed to be in security , or in satisfaction of his debt ; as if he assign his creditor to any thing due to him , or dispone any thing to him , it is understood to be in security or payment , unless the deed express to be a donation , or done for love and favour ; yea , trust is rather presumed than donation , as if a man take a bond , assignation , disposition , or other right in another mans name ; it is held to be a trust , he may force that other to denude himself , if he was not creditor to the acquirer ; yet these rules have their limitations ; as first , bonds , assignations , or other rights , in the names of children , unforisfamiliat , unprovided , are presumed to be donations , because of the parents natural affection , and natural obligation to provide children , which was extended to some goods and money of a small value , delivered by a rich brother who wanted children , to his brother who was no merchant , which was presumed to be animo donandi , and was not imputed in part of an annual legacy , left thereafter by that rich brother to the other , november . . anderson contra anderson ; yea , an assignation to ones nearest of kin , mortis causa , was found a donation , and not in satisfaction of a debt due to that party , june . . crookshank contra crookshank . and bonds of provision to children , are not interpret in satisfaction of prior bonds , but to be a further addition ; and so are any other rights taken in name of children , especially if unforisfamiliat : yet a tocher in a contract of marriage , was found to be in satisfaction of all former provision , though it did not so express , june . . francis young contra pape and vauns . and aliment to children , is ordinarily interpret to be , ex pietate , and not to obliege , as was found in the case of a mother , where the children had no considerable estate , february . . captain guthry contra the laird of mckerstoun and his brother . the like , though the mother was married , alimenting her daughter , who was appearand heir to her father , though she renounced to be heir , july . . hamiltoun contra simontoun . the like was found in the mothers father , alimenting his oye , july . . laird of ludquharn contra laird of giht . and in the case of a grand-mother , alimenting her oye in the fathers life , till she require the father to take her home , january . . janet gordoun contra janet lesly . yet aliment by a sisters husband , who was also debitor , was not found to be a donation , seing it began in minority , and was continued after , though without paction , february . . margaret spence contra foulis of ratho . and in all cases , aliment or intertainment given to any person without paction , is presumed a donation , if the person was major , and capable to make agreement . but intertainment to minors or weak persons , doth ever infer recompence , according to the true value of the benefit received . and in the case of these who are in use to furnish provisions for money , the presumption ceaseth , and recompence is due . in like manner , where more persons are bound for the same debt , when any one payeth the whole debt , or more than his share , recompence by way of relief , is due , although there be no clause of relief ; and generally , the delivery of any thing is not presumed to be a donation , but for recompence , or loan . and so though the delivery of victual to an ordinary buyer , or seller of victual , was found to infer the ordinary price , though no agreement or price was proven , unless the receiver instruct another cause of the delivery , june . . david home contra jamison . . likeways the obligation betwixt negotiators , and these to whose behove they negotiat , tying to recompence , what others without our command , knowledge , or presence , have necessarily , or profitably done for carrying on of our affairs , these deeds must be done without command , or commission ; otherways they come in the nature of the contract , mandat or commission ; yea , what is done in our presence , with our knowledge , in our affairs , is repute , as with our tacit consent and commission , nam qui tacet , consentire videtur ; these must also be done for the carrying on of our affairs ; for negotiators cannot begin any new business , but only carry on that which is begun , and they must be necessarily or profitably done ; otherwise he hath his labour for his pains , and he that set him on work must pay him his expenses . and last , though these deeds may be done without our knowledge or consent ; yet may they not be contrary to our will and command ; for such obtruders can expect no recompence , l : final . c. de negotiis gestis ; though no positive law hinder , we may be liable even to such , in quantum facti sumus locupletivres . but the obliegement to negotiators is greater ; for , if they do that which is necessary or profitable , for carrying on our affairs , though by some accident , that affair may perish , or miscarry , and we no richer , but it may be poorer , yet are we oblieged . the ground of these obligations , is , because it is frequent for men to go abroad upon their affairs , supposing quickly to return , and leave no mandat for managing of them ; and yet being detained from them beyond expectation , they may be easily lost ; for instance , some redemptions must be peremptor , and the failer therein hath a great inconvenience ; or the perfecting of some great bargain , a great part whereof is already done ; and the not perfecting the rest , loseth the whole ; or the management of any work of great profit , that for want of some pains or expenses might be lost . these who interpose themselves in such cases , do necessarily and profitably for the good of the absent , and so are under no delinquence , neither are they presumed to gift their pains and expenses , nor have they any conventional obligation upon their part : and yet though there were no positive law for it , the very light of nature would teach , it ought to be recompenced ; and therefore , can be no other then an obediential , or natural obligation , by the authority of god , and our obedience to him , grotius , l. . cap. . de jure belli § . . doth not own this obligation as natural , but as arising , ex lege civili nullum enim ( saith he ) habet eorum fundamentorum , ex quibus natura obligationem inducit ; but the contrary appeareth , not only from what is said , but by the testimony of the law it self , which reckons the obligations , negotiorum gestorum ; not amongst contracts , or obligations , or actions , ex lege ; but amongst these which are , ex quasi contractu . that this obligation is effectual , if it be profitably carryed on , though the success answer not , is acknowledged in law , and set forth by an excellent species , by ulpian , l. . § . . f. de negotiis gestis ; it justifieth ( saith he ) if the negotiator did profitably act , although the affair had not the effect ; as if he had cured a sick servant , if not with standing the cure , the servant died , he hath this action . . from this obligation there arise mutual actions , the one direct , whereby he whose affair is managed , craveth accompt , and restitution of the negotiator , and reparation of what he hath done amiss ; and the contrair action to the negotiator , whereby he craveth recompence , and satisfaction of what he hath profitably expended , and for his labour and pains , but the action is valid on either part , whether intended , directe , or utiliter , l. actio ff . . de negotiis gestis . . the negotiator is holden , not only to answer for fraud , but , pro culpae levi , for his fault , though light ; yea , if any other negotiator offered , whom he excluded for the lightest , he may be made also to follow forth his negotiation , according to that precept , susceptum perfice munus ; but this , and the exactness of diligence , is induced by positive law ; equity leaving the negotiator free , if he hath acted profitably , though he might have acted more profitably , in making his party lyable to him according to his acting . . the other obligation of recompence , is , for that whereby we are inriched by anothers means , without purpose of donation , which is only presumed in few cases , even he who mala fide , buildeth upon another mans ground , or repaireth unnecessarly his house , is not presumed to do it , animo donandi , but hath recompence by the owner , in quantum lucratus , l. . ff . de haereditatis petitione . this remuneration is a most natural obligation , as cicero , l. . de officiis , sayeth , that it is against nature , for a man , of anothers damnage , to increase his profite : and again , justice suffers not that with the spoil of others , we should augment our riches ; and therefore , this is a common exception in all positive laws , that every one should be holden , in quantum locupletior factus sit . so pupils , though they cannot obliege themselves by contract , yet if they receive that which is anothers , they are lyable to recompence , in quantum locupletiores facti , l. sed mihi ff . commodati . minors also , though by positive law , they are not lyable for what they borrow , and receive , and mispend , yet they are lyable , in quantum locupletiores facti sunt . . hence arises the action in law , de in rem verso ; whereby whatsoever turneth to the profite of any , makes him thereby lyable , though without any ingagement of his own . we are inriched , either by accession , of gain , or prevention of loss : whence is the obligation of contribution , for making up goods , thrown out to lighten ships , whereby shipwrack , and the loss of all is prevented , lege rodia de jactu , ff . l. . by which , whatsoever is thrown out to lighten a ship , for preventing shipwrack , is to be satisfied by the contribution , of all who enjoy that common benefite of safety from shipwrack , proportionally according to the value of what is thereby saved . wherein the owners of the ship , bear their share , l. . § . . eodem , wherein not only jewels , though of small weight , but even the clothes and rings of passengers , bear a share , ibidem , and the master of the ship may detain their goods till their share be payed , l. . § . . codem ; which holds also , when there is hazard of naufrage , by entering a shallow river , or port , if a part of the goods be put in a boat , and perish , the value thereof is to be satisfied by contribution . contribution is also made , for what is payed for redemption of ships from pirats , which is not extended to things taken away by pirats , or robbers out of ships , l. . § . . eodem . this , lex rodia , is now become a law of nations , as commonly received by all , for its expediency to prevent shipwrack , and to incourage merchants to throw out their goods , seing thereby they will but bear their share of the loss . but this law is not declaratory of pure equity , and doth hold by custome ; otherways , what any party doth for his own profite , though it have a consequential advantage to others , it will not obliege them to bear a share of the expenses , nor will it be interpret as , negotium 〈◊〉 ; for , he who improves aright , though it becomes simply void , and other right beside his be preferreds , yet he was doing his own business , not theirs , and can claim no share from them of his expenses . it was found , that to evite captor by a privateer , a skipper having by consent of some merchants aboard , and of the company , made a hole in the bottom of the ship , that he might run near the shoar at a creik , and opening the hole , make the ship so far sink , that she could not be carryed off by the privateer ; yet that privateer having reached her near the shoar , but before the hole was opened , and having agreed for a ransome , for which the merchants contributed , the ship having been wracked five days after by a storm , which she might have prevented , by going off before the storm arose , the merchants and passengers , were not found lyable for contribution of their shares for the loss of the ship , july . . lesly and millars contra logan , weir , and others . . from the natural obligation of recompence , doth arise the obligation of relief , whereby when many persons are oblieged , in solidum , and thereby lyable , conjunctly and severally , payment or satisfaction made by one , for more then his own share , doth obliege all the rest , pro rata , although there be no conventional clause of relief , nor any law nor statute , but the natural obligation of recompence ; for he who payed , not only for himself , but for others , is not presumed to do it , animo donandi , as was found in the case of co-principals , june . . mr. john wallace contra forks . june . . 〈◊〉 contra anderson . it was so found before , as was observed by haddingtoun , 〈◊〉 contra hunter . and upon the same ground , relief is competent amongst cautioners , without clause of relief , because the payment of one liberats all , june . . monteith contra roger. yea , relief was found competent to a cautioner , who in a new bond of corroboration , had ingaged for the debt , with the principal , and that against the cautioners in the first bond , though he had no assignation to the clause of relief , granted to the first cautioners , spots . cautioners , lubra contra david vauns . the same must hold in con-tutors , co-curators , and wherever more debitors are lyable , in solidum , for the same debt or deed . title ix . reparation where , of delinquences and damnage thence arising . . the obligation of reparation of damnages by delinquence , a natural obligation . . delinquence infers the obligation of punishment , and reparation of the injured . . damnage described . . kinds of delinquence . . concurrers in delinquence , how lyable . . special kinds of delinquences by our customes . . assythment . . extertion , vi majori & metus causa . . circumvention by fraud , dolo malo . . the edict , de dolo malo . . circumvention rarely inferred by witnesses . . simulation , . collusion . . the effect of fraud , as to the party contracting . . deeds done , in fraudem creditorum , contrair the act of parliament , . anent bankrupts . . the nature of spuilzie . . the title of possession . . oath , in litem , in spulzies . . spuilzie eleided by any colourable title , warrand , or , bona sides . . spulzie eleided by voluntar delivery . . by lawful poynding . . replyes against poynding . . spuilzie eleided by restitution within twenty four hours . . prescription of spuilzies . . intrusion and ejection described and distinguisbed . . ejection propper to the natural possessour . . exceptions against ejections . . mollestation . . breach of arrestment and deforcement . . contravention . amongst obligations obediential , we have placed these , which are by delinquence , because they arise without any convention , consent , or contract , either particularly , or by vertue of any positive law ; and therefore , they must needs have their original from the authority and will of god , and of our obedience due thereto ; for , though they do proceed from our fact , and from our will , whence that fact is voluntarly committed , yet it is not from our contracting will ; and therefore , these obligations do not receive their measure , or extent by our will. . that obligations of delinquence , are introduced by the law of nature , the suffrage of all men , and all nations will evince , who do every where acknowledge the reparation of damnages , and punishment of crimes , and injuries , as having by nature , a clear evidence , and sharp sense thereof ; and thereupon , can without reluctancy , concur with the magistrate in the punishment of citizens , and of enemies by the sword . but it may be doubted , how the law of nature , which is perpetual , and had place chiefly in innocency , can prescribe any thing in relation to delinquency , or malifice , which was not to be found in that condition . this will be easily cleared , if it be considered , that though man was made in the state of innocency ; yet had he a natural instability , for which god did warn and arm him ; and though the principal , and direct law of nature , did teach man , to love his neighbour as himself ; yet he could not but by consequence know ( though he had stood in innocency , as do the angels ) that any who acted against that royal law of love , by doing evil to his neighbour , and taking away from him that which is his , ought to repair him , and to be lyable to divine justice , which is that certification , which god put upon his natural law , as he did more expresly upon the forbidden fruit , morte morieris . . an obligation of delinquence , is then , that whereunto injury , or malifice doth obliege , as the meritorious cause thereof , as the will of god thereupon is the efficient cause ; and it is twofold , either that which relateth to god , or that which relateth to man ; the former is the obligation of punishment , pain , or penalty ; for unto god , there can properly no reparation be made by the creature , whose duty and service is due to him : so that to him the creature is oblieged to underly the punishment . in reference to man is , the obligation of reparing his damnage , putting him in as good condition as he was in before the injury , and this only is mans part for himself ; for the inflicting of punishment is for god , in so far as it is authorized , or allowed by him : but it is not for , or from man of himself , revenge is mine , and i will repay , saith the lord : for , as hath been said before , an obligation in the debitor , hath a correspondent power of exaction in the creditor , which is the personal right . so in delinquence , the power of exaction of reparation of his damnage , is mans for himself : but the power of exacting punishment , is in god ; and , as for him , or 〈◊〉 it is 〈◊〉 to man ; it is but a ministerial power , and not dispensible at 〈◊〉 pleasure , and hath an obligation , whereby man 〈◊〉 bound to god , for doing his duty therein : though positive law , and 〈◊〉 of 〈◊〉 , and in some things , the positive law of god it self , may 〈◊〉 a 〈◊〉 , and imploy it for the proper use of the injured ; yet it is not a proper punishment , that hath its force by paction , or positive law , and nor by the law of nature . the obligation to punishment , arising from 〈◊〉 , and mans power , and duty to inflict the same , is a publick right ; which , though naturally did concern every man , yet it is now with divine approbation , for most part devolved upon publick authority , which is said , rom. . 〈◊〉 , . to be a terrour to evil doers , and not to bear the sword in vain ; for be 〈◊〉 the minister of god , a revenger , to execute wrath upon him that 〈◊〉 〈◊〉 : by which it is clear , that the magistrate , as he executeth revenge , doth 〈◊〉 not of , or for himself ; nor for , or from the people , as their proper right or power of exaction ; but therein as he is the minister of god , he doth 〈◊〉 for , and from god , even though his authority and commission , were not immediatly from god , but from man ; yet he stands in the place of these men to god , to execute that revenge , which they themselves are naturally oblieged unto . but how far mans natural duties , or the magistrats , in the punishment of crimes reacheth , the lines of the law of nature , are become dark in many points . it is manifest , and agreed by all , that though in all damnages done to man , there are also punishments which may be inflicted by god : yet , where the matter is chiefly mans interest , and so repairable to him ; none will think , that it is a duty in all of these cases , to inflict vengeance on such ; neither doth any own a power , and necessity to inflict punishments for mans spiritual delinquence , standing in his mind and affection , as for want of love , and confidence , hope , &c. in somethings also , the power of punishment is no less evident , even when there can be no reparation to man , as in that general precept , of equal crimes and punishments , life for life , eye for eye , tooth for tooth , &c. but there are many middle crimes , that are much more unclear , wherein the word of god , even in the judicial law , is an excellent light ; for we may safely conclude , that it would be no injustice or intrusion , for man to vindicate these crimes for the lord , which-himself gave order to revenge . but our purpose being here , only to insist in private rights , we shall not follow these , nor the many 〈◊〉 questions that rise on that matter ; but shall return to the private rights of men , arising to them by delinquence , by exacting reparation of their damnages inferred thereby . . damnage is called , damnum a 〈◊〉 ; because it 〈◊〉 , or taketh away something from an other , which of right he had . the greeks for the like reason , call it 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 by which man hath less then he had . it is not every damnage that raiseth this obligation ; for , some damnages may be just , as these which are inflicted by way of punishment ; and others may have their reparation arising from contracts , whereby , though a delinquence may arise , in non-performance of the contract ; yet the original cause of the obligation is the contract . some also arise from deeds or things , the non-performance whereof is also a delinquence , as in the obligations of restitution and recompence : but here are only understood , obligations which originally arise from delinquences , as the first cause thereof . . delinquence in the romon law , is reduced into these four , furtum , rapina , damnum , injuria ; all which are separate from the publick crimes , wherein we shall not insist , but follow delinquences privat , and obligations and actions thence arising , as they are known by the terms in our law , in so far as they use to be civilly prosecute ; for though in publick crimes , which are criminally pursued , there is competent reparation , either from the nature of the crime , or from law or custome ; yet that is incident unto a publick right , and not ordinar , it shall in general suffice here to consider , that according to several rights and injoyments , our damnages and delinquencies , may be esteemed . as first , our life , and members , and health ; which , though they be inesteemable , and can have no price , yet there are therewith incident damnages , and that either lucrum cessans , ceasing gain ; or damnum emergens , loss . so the life of any being taken away , the damnage of these who were intertained , and maintained by his life , as his wife and children , may be repared . so likewise , the loss any man hath by the expenses of his cure , or the loss of his labour , and industry in his affairs , is also reparable . next to our life , is our liberty , and the delinquences against it , are restraint and constraint ; though liberty it self be inesteemable , yet the damnages sustained through these delinquences , are reparable . the third is fame , reputation and honour , which is also in some way reparable ; first , by making up the damnage that is inferred in mens goods , by the hurt of then fame , whereby their gain ceaseth , in that being repute such persons , they are disinabled for their affairs ; as if a merchant be called a bankrupt , it may not only hinder his traffique , but make all his creditors fall upon him suddenly to his ruine : so if a man be called a cheater , deceiver , or the like , it disables him to mannage his affairs , men being unwilling to medle with such . and if a man being about to marry , be called impotent , or to be infected with any noisom disease , he may be demnified in his match and tocher : such actions upon injurious words , as they may relate to damnage and means , are frequent and curious among the english ; but with us , there is little of it accustomed to be pursued , though we own the same grounds , and would proceed to the same effects with them , if questioned . secondly , damnage in fame or honour , is repaired by homage , acknowledgement , or ignominy put upon the delinquent . thirdly , by equivalent honour , and vindication of the injured . slander is competent to be judged by commissars ; and therefore , a decreet of the commissars of edinburgh , upon a pursuit for slander and defamation , decerning the slanderer to make acknowledgement of the injury before the congregation , and to pay an hundred pounds scots to the party , and as much to the poor , was sustained by the lords , february . . james deans contra alexander bothwel . the fourth interest that may be damnified , is our content , delight , or satisfaction ; and especially by the singular affection to , or our opinion of , the value or worth of any thing that owners have : in which consideration it is said , that every thing is to every man as he esteemeth it , and though this be not the intrinsick value of the thing , nor the common rate of it in the accompt of men , but praetium affectionis , the rate that the affection of the owner puts upon it ; yet , that being free to him , and his right , his damnage therein ought to be repaired , according to the value himself , esteemed the thing taken from him worth : on this ground , in most actions in the civil law , wherein there is force , or attrocious injury , reparation is to be made , according to the reasonable estimation of the injured ; and therefore , he hath , juramentum in litem , his oath to declare how much he accounted himself damnified ; the exorbitancy whereof , might have been taxed by the judge : but otherways , though his estimation be much above the common value , it were receivable . this hath also place with us , as in actions of spuilzie , &c. and other delinquences by violence . the last damnage is in goods and possession , the redress whereof , is more clear , because the things themselves are more valuable and esteemable . in all reparations , the natural fruits and profits of the thing taken away , come in as part thereof : and in many cases , the industrial fruits and profits , which the owner might have had , at least used to make thereof . reparation is either by restitution of the same thing , in the same case , that it would have been in , if it had remained with the owner , and this is most exact : or , where that cannot be , by giving the like value , or that which is nearest to make up the damnage , according to the desire of the damnified ; and if none be found fitter , reparation must be made in money , which is the common token of exchange , and hath in it the value of every thing esteemable . . in the reparation of delinquences , it would be considered , when many have a hand in it , who come in to be lyable , and how far ; for in some cases , the delinquence is committed by one principally , and others are but accessory : in other cases the delinquence is equally and principally committed by more , though unto these also , there may be accessories . accession to delinquence , is either anterior , concomitant , or posterior to the delinquence it self : anterior , is either by counsel , instigation , or provocation , or by connivance , in foreknowing , and not hindering these whom they might , or ought to have stopped ; and that either specially , in relation to one singular delinquence , or generally , in knowing and not restraining , the common and known inclination of the actors towards delinquences of that kind ; as when a master keeps outragious and pernicicious servants , or beasts ; and therefore , in many cases , even by natural equity , the master is lyable for the damnage done by his beast , as is clearly resolved in the judicial law , in the case of the pushing oxe , which if it was accustomed that he pushed before-times , the owner is lyable for the damnage thereof , as being oblieged to restrain : but if not , he is free . so the like may be said of mastives , and other dogs , if they be accustomed to assault men , their goods , or cattel , and be not destroyed , or restrained , their owner is lyable . hence also is that famous edict of the pretor , in the roman law , nuntae caupones stabularii , quod salvum fore receperunt nisi restituant in eos judicium dabo , by which the masters of taverns , stables , or ships , are lyable for restitution ( of what is brought in upon the account of their imployments ) of the damnages that may be sustained by their servants , or any other that shall happen to be there for the time . concomitant accession is , when the accessories are not equally concurrent in the act , but countenance , or otherways assist , abett , cherish , praise , or connive at the delinquence . posterior accession , is by ratihabition , approbation , praise , 〈◊〉 defence , or support of the 〈◊〉 , in order to the 〈◊〉 all these 〈◊〉 in our law , 〈◊〉 〈◊〉 〈◊〉 and part. as to the question then , who of these co-operants are oblieged , and how far ? first , it is clear , that where the delinquence is committed by many alike , there all of them are lyable alike ; but whether in equity they be all lyable , in solidum , or for the whole reparation , it is not so 〈◊〉 . positive law hath made them all lyable , in solidum , for the repressing such concurrences , and that the injured be not put to the trouble of seeking in by parts , from the several delinquents ; yet equity would rather lay the reparation of every mans part upon himself ; and in case of his not being found solvent or sufficient , upon the rest , making up with all the trouble of obtaining reparation from many , by refounding the expences in obtaining thereof , and the labour and pains , and content of the injured . as to the obligation of punishment , of many concurring delinquents , if an army , or a part of it in a mutiny , all shoot at on person , if he be killed , it would not be thought just , for that ones life , to take the lives of all ; and therefore , because it cannot be known whose ball killed the man , it is accustomed , and not without good ground , by lot , to single out who are to suffer , and the rest are free ; from whence it may be gathered , as in the punishment , so in reparation , fellow delinquents , socii criminis , are to concur in the reparation , as they concurred in the action ; though , as hath been said , positive law doth well to make all lyable , in solidum ; yet so , that the satisfaction of one or more , liberats the rest . secondly , as to the accessory delinquents , though delinquents by command , be numbered among them , yet ( as we say ) he doeth , that causeth do ; therefore such are propper efficients , though mediat ; and therefore , no less lyable then concurrents . thirdly , other accessories , albeit by positive law , they are 〈◊〉 all , or many of them , made lyable , in solidum ; yet as we have said of concurrents , in equity they are lyable ; but according to the influence they had in the delinquence : but in these , the obligation may be much more to the punishment , where the will comes in to be considered with the act , then in the reparation , where the damnage ( which is the outward and more conspicuous thing ) is mainly considered ; but in these we shall insist no further , but come to the obligations by delinquence , which are civilly cognoscible by our custome , according to their known names and titles in law : which , though they do rather signifie the act or actions , whereby such obligations are incurred , or prosecute , then the obligations themselves , yet will they be sufficient to hold out both . . these are either general , having no particular name or designation , and such are pursued under the general names of damnage and interest , which hath as many branches and specialities , as there can be valuable and reparable damnages ; besides these of a special name and nature , which are chiefly these , assythment , extortion , circumvention , spuilzie , intrusion , ejection , molestation , breach of arrestments , deforcement , contravention . . assythment , as it signifies the reparation made , so it insinuats the obligation to repair damnage sustained by slaughter , mutilation , or other injuries in the members , or health of the body ; but it is chiefly pursued by the wife , or bairns , or nearest of kin , of parties slain . in other cases , it is competent to the party mutilat or hurt , or otherways prejudged by the muti the mutilation , or hurt ; and though the private interest be only for reparation of damnage and loss , yet our custome applyeth much of that , which is paenal therein to the injured ; and therefore , consideration is had of the ability and estate of the offender , and the assythment is accordingly modified , all circumstances being considered , and that either against the principal offender , or the accessories : so was it found in the pursuit , at the instance of patrick and isobel greers , for the assythment and slaughter of their brother against thomas horn baxter , nic. de siccariis , this action was so favourable , that it was sustained , though there was no particular quantity of damnage libelled , but the same referred to the lords , spots . summonds and libel ; and though it was pursued by one of many brethren , his part was decerned , reserving the right of the rest , january . . ker contra yea , it was sustained , at the instance of some of the kin , though not of the nearest degree , and though there were not some concurring of the four branches of the slain , it is a sufficient proof in this action , if the defender have taken remission , as was found in the case of greer . and the like is observed , january . . drew contra home in montrose , where the defender was not freed , though he had an acknowledgement under the defuncts hand , and that he was cause of the wound , and therefore quit the wrong . assythment is a priviledged action , as recent spulzie , par. . cap. . . extortion signifies the act of force , or other mean of fear , whereby a person is compelled to do that , which of their proper inclination , they would not have done . it doth also imply the obligation of the injurer to the injured , to repair his loss and damnage by such acts ; things so done , are said to be done , vi majori , or metus causa , by force or fear ; deeds or obligations extorted , are in their own nature and equity , efficacious , because they have truely the consent or act of the will , by which such rights are constitute ; and therefore , the romans had no civil remeid in their ancient law for such , till the edict of the pretor , quod metus causa gestum erat ratum non habebo , l. . ff . quod metus causa ; but by that edict , and the custome of this and other nations , such deeds and obligations , as are by force and fear , are made utterly void , though in equity , the effect almost would be the same ; for seing the delinquence done by extortion , oblieges to reparation ; if any should be pursued upon an extorted obligation , he would have the exception of compensation upon the obliegement of reparation , and so might also by action , obtain such obligation , or other right to be anulled . this edict was not competent upon every force or fear , but first , it behoved to be unlawful , l. . § . . ff . quod metus causa . secondly , such as might befal a constant man , as of life , l. , , , . ff . l. . c. eodem , or torment of the body , l. . c. eodem , or of bondage , l. . § . . ff . eodem , or the loss of estate , l. . ff . quod metus causa , or infamy or disgrace , l. . § . . ff . eodem , or of bonds and prison , l. . ff . eodem : but only unlawful and private , and not publick imprisonment , l. . § . . ff . eodem , it was not competent upon reverential fear , l. . ff . l. . c. eodem : nor upon fear contracted upon power , and dignity , d. l. . nor of threats , l. . c. eodem , except they were from powerful persons , l. . § . . quod metus causa . the effect of the edict was , being pursued within a year , unless reparation was made before sentence , the party was condemned in the quadruple , and the penalty was triple , and applyed to the injured , and after the year simple reparation , l. . § . . ff . eodem . our customs go much along with the course of the civil law in this , but so , as not bound thereby , respecting most when the true reciprocal cause of the obligation or deed , is force or fear , not being vain or foolish fear . and it is competent ordinarily by way of action , or sometimes by exception , spots . exceptions , tennants of cockburns-path contra the earl of home , it was eleided by a judicial ratification of the deed upon oath , july . . agnes graham contra anthony balvaird . extortion is more easily sustained in deeds of weaker persons ; and therefore , extortion was found relevant to reduce a disposition , by a facile weak person , who was apprehended by the purchaser upon a caption of a third party , and detained by his servants and officers , and not by messengers , and keeped latent in obscure houses , and carried from place to place in the night , till he subscribed a disposition of his whole estate , for a cause not near the third of its value , albeit there was produced a cancelled minute to the same effect , with the disposition in question , wherein the two actors of the force , were witnesses insert ; but the disponers name , nor no part of it was to be seen , but a lacerat place , as if it had been cancelled , without any anterior adminicle to astruct the truth of it , january . . sir archibald stuart of castlemilk contra sir john whitefoord and the duke of hamiltoun . extortion falls most to be contraverted in deeds done by wives ; and therefore , when the deed is extreamly to their prejudice , and to the behove of their husbands , it is presumed as done , ex reverentia maritali . thus a wifes discharge of her whole contract , was found null , without alledging any compulsion , january . . marshel contra marshel : but ordinarily , marital reverence is not sufficient , though the husband were vir foerox , and was thereafter divorced , hope , husband and wife , hepburn contra nasmith . in the case of wives dispositions , or consent to their husbands disposition , it was found relevant to reduce the same , that the wife , at the time of the subscribing , before the witnesses declared that she was compelled , providing that a third party , a stranger to the husbands fault , were restored , nicol. de his quae vi , lady cockpen contra laird of conheath . it was also found relevant , to reduce a wifes consent to her husbands disposition ; because , before he had beaten , menaced , and extruded her for not consenting : but in this case , it being alledged , that the wife appeared well content at the subscription , witnesses were examined , hinc inde ex officio , for tryal of the truth june . . cassie contra fleming . but where a husband was proven to be , vir foerox , and that he did threaten his wife to do the deed in question , and that she appeared to the witnesses , unwilling the time of the subscription , it was found relevant , june . . woodhead contra barbara nairn . but a wife subscribing her husbands testament , containing provisions prejudicial to her contract of marriage , was not reponed , as having done it , ex reverentia maritali , at her husbands desire , who was moribundus , he having lien long sick , and she having married within a year thereafter , and the deed done to her only daughter , january . . marjory murray and michael jaffray contra isobel murray . upon the like ground , extortion will be the more easily presumed , and sustained in the deeds of the persons , who are weak and infirm of judgement or courage , then of these who are knowing and confident , and more easily in deeds and obligations gratuitous and free , then in such as are for an onerous cause , which will not easily be anulled , unless manifest lesion do appear , or that the compulsion be very evident . yet the resignation of the earldome of mortoun in the hands of king james the fifth , was reduced , because the resigner was then imprisoned by the king , without any visible cause , and was discharged the same day he made the resignation , sinclar , april , . . earl of mortoun contra the queen . metus was sustained to reduce a bond granted by a party , because he was taken by caption , being sick , january . . mr. john mair contra stuart of shambelly . it was also sustained , to reduce a bond , granted by two sons , for freeing their father , who was taken by a caption , though the charge was suspended , he being carryed to the hills , and menaced on his life , though the sons got abatement , and so there appeared a transaction , december . . mcnish contra spalding and farquherson . . circumvention signifieth the act of fraud , whereby a person is induced to a deed or obligation by deceit , it is called dolus malus , and it must needs be the cause of the obligation or deed , and so not be known to the party induced , before it can have any legal effect ; for he who knoweth the snare , cannot be said to be insnared , but to insnare himself ; and though deceit were used , yet where it was not deceit that was the cause of the obligation or deed , but the parties proper motion , inclination , or an equivalent cause , onerous , it infers not circumvention ; so neither doth error , nor mistake , though it be the cause of the obligation or deed , and be very prejudicial to the erring party ; and though if it had been fraudulently induced by the other party , it would have been sufficient ; yet not being so , there is no circumvention , and the deed is valid , unless the error be in the substantials of the deed , and then there is no true consent , and the deed is null , as if one married sempronia , supposing she were maevia ; the marriage hath no further progress ( but by subsequent consent ) and it is void ; but if he married sempronia , supposing her to be a virgin , rich or well natured , which were the inductives to his consent , though he be mistaken therein , seing it is not in the substantials , the contract is valid , but if the error or mistake , which gave the cause to the contract , were by machination , project or indeavour of any other then the party errant , it would be circumvention , l. . § . . & . ff . de doli mali & metus exceptione , so that there is nothing more frequently to be adverted , then whether the error be through the parties own fault , or through the deceit of an other ; and therefore errore lapsus and dolo circumventus are distinct defects in deeds . . the roman pretor , among other perpetual edicts , did give this of fraud , quae dolo malo facta esse dicuntur , si de his rebus alia actio non erit , & justa causa videbitur judicium dabo , l. . § . . ff . de dolo malo . this edict was competent , either by way of action or exception , l. finali , ff . eodem ; and in hatred of fraud , these who were condemned of this action became infamous , l. ff . de his qui notantur infamia ; and therefore , as the edict expresses it , it was not competent , if there was any other more favourable remeid : neither was it competent for a very small sum , not exceeding two crowns , l. . § . finali , ff . de dolo malo : neither was it competent to children against their parents , nor to the vulgar against these of consular dignity , nor to vile persons , against those of an orderly life , l. . ff . eodem . it was also personal , and reached no further then the person committing the fraud , and not in rem , reaching the thing , if lawfully it came to any other not partaking of the fraud , dolus authoris non nocet successori , l. . § . . c. de doli mali & metus exceptione nisi in causa lucrativa ibidem , so that the deed done thereby , was not rendered null , as in extortion . but reparation given to the injured , to the single value only , infamy being a sufficient penalty , but according to the estimation , by the oath , in litem , of the party injured , l. . ff . eodem , & tit . ff . & cod. de in litem jurando . the romans had also their actio redhibitoria & quanti minoris , whereby the deceived might obtain , what damnage they had by the fraud , or might thereby anull the bargain . and where lesion was very great , fraud was presumed , as when the price exceeded the double value of the ware : but they did not consider small differences betwixt the ware and price , which would have raised multitudes of debates , hurtful to trade , the design whereof , is to gain ; and therefore , nothing to induce a moderate gain was questionable : as when merchants set out their ware , or though they should falsely assert , it cost them so much , and others had given them so much , or that the ware was fashionable or good ; there was no civil remeid , unless the damnage were considerable . in which sense only it is true , in comercio licet decipere ; because , though it be not simply lawful , yet it is against no civil law. but the sophistication of ware , or concealing of the insufficiency thereof , was held fraudulent and reparable , actione redhibitoria aut quanti minoris . we have the more fully summed up the sentence of the civil law , in the matter of fraud , because it is most equitable and expedient ; and therefore , is generally followed by our custome , which regardeth not inconsiderable damnages in traffique , that it may be current and secure , for nothing is more prejudicial to trade , then to be easily involved in pleas , which diverts merchants from their trade , and frequently marres their gain , and sometimes their credit ; therefore we allow not the quarrelling of bargains upon presumed fraud , ex re ipsa , although that which is bought be within the half of the just price , if there be not sophistication , or latent insufficiency , which we exactly consider , because it is destructive to trade , vide tit . . § . , & . . fraud is not to be presumed , but must be proven , and is always competent to be proven by the oath or write of the party committing the fraud , when the question is betwixt himself and the party prejudged , whereby it may be proven , that he designed to deceive , or that he did such acts from whence fraud is presumed , which by his oath he may qualifie , what he did , and why he did it , and if there be a probable construction , that the deeds done were not to deceive , fraud will not be thence presumed , and will hardly be presumed in a person of intire fame and honest life , but much more easily in these who have been found to defraud , or are so reputed : and it being ordinar for parties to alledge contrary or different circumstances , to infer or exclude fraud ; therefore the lords do neither give the benefit or burden of probation to the one party , but do state the points of moment alledged , or what others they think fit for clearing the truth , and allow either party to prove , where their alledgeances are not contrary ; and where they are contrary , there are abstract queries stated , as to which , either party may adduce such an equal number of witnesses as is prescribed , as whether a write was read at the signing , and what the condition of the parties then were ; for the not reading of a write at subscribing , will not alone infer fraud , because it might have been read before ; yea , it was not sustained to be proven by witnesses , that a write was not read at subscribing , though there was great lesion to the subscriber , in favours of his curator , sine quo non , within six moneths after his majority , ante redditas rationes . and that a wodset was commoned , yet the write bore an irredeemable disposition , july . . laird of monymusk contra laird lesly . but these circumstances would have been certainly relevant by the oath of party , or write . neither was witnesses admitted to prove circumvention , in causing a testator give warrand to a nottar to subscribe a testament unread , of a tenor , 〈◊〉 to what the testator expressed , hope , testament , nearest of kin of the lady innerleith contra her executors . neither were witnesses admitted to prove the fraud of a debitor , retiring a bond from a person , whose name was only in trust for another , to whom the debitor had payed annualrent , july . . barckley contra cuningham . but where the deeds alledged can have no fair construction , but do infer fraud , witnesses are receivable , as in a collusion betwixt a creditor and debitor , whom the creditor brought home from abroad , that he might prevent the diligence of an other creditor , who had denunced that debitors lands to be apprized , upon sixty days : but upon return of the debitor , this creditor denunced upon fifteen days , and so did first apprize : yet the first denunciation and last apprysing was preferred , hope , de dolo , sir hendry wardlaw contra thomas dalyel . and the liferent escheat of a vassal was excluded , because the superior , upon whose horning it fell , had taken payment of the debt , and had not acquainted the vassal that he was denunced , that he might have relaxed within the year , as was found in the same case , ibidem . though this case and that of latent insufficiency , be rather , lata culpa quae dolo equiparatur , for the difference betwixt dolus & lata culpa , is , that dole est magis animi , and oftentimes by positive acts , and lata culpa , is rather facti , and oftentimes by omission of that which the party is oblieged to show . a discharge was found null , as to an assigney , to a bond granted by one brother to another , the discharge being of the same date with the bond , which could have no construction , but that the brother by assigning the bond might deceive , december . . thomson contra henderson . and a discharge by a son to his father , of a sum provided to him by his contract of marriage , without satisfaction , but upon agreement betwixt the father and the son , the time of the contract , that the sum in the contract should be discharged gratis , was found fraudulent and null , as to the sons creditors , who traded with him , even after the discharge , january . . isobel caddel contra john raith . and a liferent by a husband to his wife , of his whole estate , providing she disponed the half to the children of the marriage , was found fraudulent , as to that half , and the creditors of the husband preferred to the children therein , december . . john erskin contra carnagies and smith . but where the liferent was but suitable to the parties , a clause therein , that so much of it should be applyed for the aliment of the children , that clause was not found fraudulent , in prejudice of the husbands creditors , but was sustained to the children , it flowing only from the mother , november . . wat contra russel . . under fraud , simulation and collusion are comprehended ; simulation occurs mainly in two cases , in dispositions , retenta possessione ; for although the disposition be delivered , and that there be instruments of delivery of the goods disponed : yet if the natural possession be retained , the disposition is presumed simulat , and others affecting the things disponed by legal diligence , or by natural possession are preferred . simulation in gifts of escheat and liferent , are very frequent and easily presumed , retenta possessione , vide tit. . § . . . collusion occurs chiefly , when the debitor or common authour opposes some creditors , and concurs with others , that these may attain the first compleat diligences , which imports direct fraud : or if he oppose one , though he do not concur with an other , but only not oppose that other , his opposition is holden as fraudulent . . fraud gives remeid by reparation , to all that are damnified thereby , against the actor of the fraud , either by anulling of the contract , or other deed elicit or induced by fraud , or by making up the damnage sustained by the fraud , at the option of the injured , and so fraud was sustained at the instance of a seller , to anull a bargain of sale of wines , delivered to a skipper , upon the buyers order ; because the time of that order , the buyer knew himself to be insolvent , which might appear by his books : and though the wines were arrested by a creditor of the buyers , in the ship , and a decreet for making forth-coming recovered ; yet the wines were ordained to be restored to the seller , december . . magnus prince contra peter pallet . . reparation of fraud , is not only competent to the party defrauded , but also to his creditors , or assignays , for which the romans had a peculiar remeid , per actionem paulianam , for anulling all deeds , in fraudem creditorum : in imitation whereof , the lords of session made an act of sederunt , in july , . against unlawful dispositions and alienations , made by dyvers and bankrupts , which was ratified by act of parliament , . cap. . by this act of sederunt , the lords declare , that according to the power given to them to set down orders for administration of justice , meaning to follow and practise the good and commendable laws , civil and canon , made against fraudful alienations , in prejudice of creditors , against the authors and partakers of such fraud , that they wil decern all alienations , dispositions , assignations and translations , made by the debitor of any of his lands , teinds , reversions , actions , debts , or goods whatsomever , to any conjunct and confident person , without true , just and necessary causes , and without a just price , really payed , the same being done after contracting of lawful debts , to have been from the beginning null , by way of action or exception , without further declarator , but prejudice to purchasers of the bankrupts lands and goods , for just and competent prices , or in satisfaction of their lawful debts , from the interposed persons : but the receiver of the price from the buyer , shall be holden to make it forthcoming to the creditors : and it shall be sufficient to prove by write , or oath of the receiver of the disposition from the bankrupt , that the same was made without a true and just cause , or that the lands and goods being sold by him that bought them from the dyver , that the most part of the price was converted , or to be converted to the bankrupts profit and use : and in case the bankrupt , or interposed person , shall make any voluntar payment , or right to any person , he shall be holden to make the same forthcoming to the creditor , having used the first lawful diligence , and he shall be preferred to the con-creditor , who being posterior to him in diligence , hath obtained payment by the partial favour of the debitor , or his interposed confident ; and shall recover from the said creditor , what he hath so obtained : but what the interposed person hath payed , or assigned to the bankrupts lawful creditor , before preferable diligence done by others , shall be allowed to him , and he shall be lyable to make forthcoming the rest of the price : yea , the saids bankrupts , and interposed persons , and all others who shall give counsel and assistance , in devising and practizing the fraud , shall be holden infamous , incapable of honour , dignity , or office , or to be witnesses , or assyzers . this excellent statute hath been cleared by limitations and extentions , in multitudes of decisions , occurring since , relating to defrauding of creditors , which being of the greatest importance for publick good and security . we shall distinctly and in order , hold forth the several cases that have been decided in this matter . first then , though the statute be only in favours of anterior creditors , for anulling posterior deeds ; yet it is not exclusive of other remeids , for anulling deeds done in defraud of creditors , though contracting after these deeds , where fraud in the design doth evidently appear , whereof we have now instanced several decisions . so a bond granted by a father to a son , forisfamiliat , payable after the fathers death , was reduced at the instance of the fathers posterior creditors , continuing traffick with him ; february . pott contra pollock . and a bond payable only by the granters heir , if he had no heir of his own body , was reduced as fraudulent , january , . . blair of ardblair contra wilson . and a disposition of lands , purchased by a merchant to his son , was found affectable for the debts of merchants strangers , who began to trade with the father before the disposition , and continued after , even as to the posterior debts , seing the father continued still to act as proprietar , though by his compt book , it appeared he knew himself to be insolvent : and though the sons infeftment was publick and registrat , which stranger merchants were not oblieged to know , july . . street and jackson contra masson . yea , an infeftment by a father to his eldest son , an infant was reduced at the instance of posterior creditors his neighbours ; where the seasing was registrat , seing the register was carried out of the countrey , and the father continued to act , not as liferenter , but as proprietar , december . . reid of bullochmyle contra reid of daldillin . and generally , latent rights amongst confident persons , are reduceable by posterior creditors : but the liferent of the whole conquest of a merchant , provided in a contract of marriage to his wife , being an ordinary clause , was not found fraudulent , february . . marion gray contra the son and creditors of her husband . secondly , though this statute bears all alienations , without cause onerous , in prejudice of prior creditors to be null , ab initio , and without declarator by exception , or reply : yet custome hath found this inconsistent with the nature of infeftments , which cannot be reduced , till they be first produced , and all the authors called , which cannot be by way of exception , but by action . but a disposition of moveables was found anullable by reply , november . . henderson contra henderson . june . . bower contra lady couper . and likeways , a profitable tack , february . . doctor hay contra marjory jamison . neither are the receivers of such alienations comptable for the profits , ab initio , till they be put , in mala fide , by the pursuites of anterior creditors , whose rights they are not presumed to know , till they be produced , and found preferable . thirdly , though the title of this statute , and much of the body of it be against the alienations of bankrupts , in prejudice of their creditors : yet the statutory part declares against all alienations to any conjunct or confident person , without a just price , being in prejudice of anterior creditors to be anulled , which hath always been extended , not only to dispositions of bankrupts , made to confident persons , but to any person without a competent price , or equivalent cause onerous ; and therefore , such gratuitous deeds are reduceable by anterior creditors , though the granter was not then bankrupt , as a broken merchant flying : but if he were before , or did by these fraudulent deeds become insolvent , hope , usury , pringle contra ker. february . . kilgour contra thomson . january . . skeen contra belstoun . yea , if thereby his estate cannot afford ready satisfaction or security , as being incumbred with many appryzings , or adjudications , though the reversions may be equivalent to all his debt : yet anterior creditors may reduce gratuitous deeds done by such persons , being more fit that anterior creditors should be preferred , and the obtainers of these gratuitous rights should be put to recur upon the reversions , by their warrandice , february . . lady craig contra lord lour . but there is nothing in this statute , or by custome , to anull any gratuitous deed in favours of wives , children or strangers , if at the time of the granting and delivery thereof , the granter had an estate sufficient for these , and all his debts unaffected by appryzing , adjudication , or arrestment . neither will inhibition suffice , nor apprizing , or arrestment for small sums , to be a ground for this reduction . competent provisions to wives or husbands , are not accompted gratuitous , but onerous , ad sustinenda onera matrimonij , and for mutual provisions : but if exorbitant , they will be lyable , in quantum locupletiores facti , december . . dam rachel burnet contra lepers . neither are provisions or gifts to children anullable by anterior creditors , if the granter had then a visible estate , sufficient for these , and all his debts , as was found in a provision by a father to his son , by his contract of marriage , though the son received the tocher , june . . grant of cairnhauch contra grant of elshes . november . . mckel contra jamison and wilson . yea , the portions of children were not excluded by prior creditors , their father having then a sufficient visible estate , though ex eventu , it proved insufficient , by running on of annuals , and accumulations of appryzings , december . . creditors of muswall contra children of nuswald . june . . clerk contra stuart and williamson . and so a disposition by a grand-father to his oye , was not annulled by anterior creditors , march . . laird of grantoun contra ker. fourthly , though this statute requires a just price , it did not anull a disposition , though a prior creditor offered a greater price , if the price received was the ordinary rate of the countrey ; and though there was a personal reversion to the disponers eldest son only , january . . earl of glencairn contra john brishane . the like , where the pursuer had obtained a prior minute of sale , for a greater price ; yet it did not reduce a posterior infeftment purchased , bonafide , though for a lesser price , being competent , july . . murray of kilor contra drummond of machanie . fifthly , though the statute mentions only the anulling of dispositions , &c. yet it is ordinarly extended to bonds , or obliegements , whereupon appryzing , adjudication , or arrestment follow . sixthly , though dispositions or other rights be , fore equivalent causes onerous : yet by the posterior part of the statute , they are accompted fraudulent and reducible , if the bankrupt , or the interposed person in trust , do by voluntar gratification , prefer one creditor to another , who hath done more timeous and lawful diligence : where by , bankrupt , is not only to be understood a notour bankrupt , but any person insolvent , or by the preference becoming insolvent , or who hath not a sufficient visible inaffected estate , for his other creditors . but where a debitor of an intear estate , pays his lawful creditor , or satisfies him by dispositions , or assignations , neither the tenor nor extention of the statute reacheth these cases ; albeit there be inchoat and incompleat diligence , at the instance of other creditors . seventhly , where that clause of the statute bears the annulling of deeds done in gratification , or preference of one creditor to another , who hath done more timeous diligence by inhibition , horning , arrestment , compryzing , or other lawful mean , duly to affect the dyvers lands , or goods , or price thereof ; the meaning is , that when these diligences are not compleat , but inchoat , and the creditor is , in cursu diligentiae ; the debitor or his trustee , cannot prevent the course of that diligence , by preferring another creditor , doing less diligence : for , if the meaning were , of appryzing , perfected by infeftment , or arrestment , by decreet , to make forthcoming , there needed not this remeid ; for these diligences being compleat , would exclude any other posterior disposition or diligence : yea , inhibition , if the executions were compleat and registrat , would of it self be effectual to reduce , ex capite inhibitionis : but if these diligences be only inchoat , as if the inhibitor had begun his execution ; but had not compleated it at all the mercat crosses requisite , any disposition , infeftment , or other real right made to another creditor , medio tempore , less vigilent , is anullable thereby , december . . and february . . mr. john eleis contra keith and wishart . or if lands be denunced to be appryzed , or summonds of adjudication be execute , rights thereafter made to other creditors doing less diligence , in cursu diligentiae , with the first , are thereby reducible , although done before the decreet of apprysing or infeftment : but inhibition , apprysing , or adjudication inchoat , have no effect as to moveable rights , not being as the statute requires , diligences duely to affect that subject . neither doth the laying on of arrestment affect heretable rights , and so cannot hinder the debitor to dispone these to lawful creditors , doing less diligence : but horning is a diligence , relating both to the moveable estate , by single escheat , and the heretable estate , by liferent escheat ; and therefore , after the charge of horning it is effectual , february . . veach contra the executors of ker and pallat. july . . murray of kilor contra drummond of machany . january . . bathgate contra bogil . it hath not been yet cleared by practice , if insisting in processes for constituting debts , be comprehended under other lawful means , duely to affect the debitors lands or goods . but this statute will not 〈◊〉 dispositions , or other rights made in favours of these persons , who have used the most effectual diligence , duely to affect the subject , because this prevents expences , prejudicial both to the debitor and con-creditors , and is not contrary this statute . neither will dispositions , or other rights for equivalent causes onerous , made to creditors , be anulled , if not done , in cursu diligentiae ; but if the con-creditor insist not in his inchoat dillgence , till it be compleat , he hath not the benefit of the statute , vigilantibus , non dormientibus jura subveniunt ; and therefore , a disposition was not reduced at the instance of a creditor , who had appryzed before the disposition , but for several years had neither obtained infeftment , nor charged the superior , february . . john neilson contra ross of pittendreich . but how long this negligence must be to exclude it , must necessarily be , in arbitrio judicis . but this clause of the statute will not anull dispositions made to buyers , for a just price payed , where the price was not an anterior debt due to the buyer ; for there , there is not preference of one creditor to another , but a lawful bargain in commerce , where the buyer neither doth , nor can know inchoat diligences , but only such as are compleat and registrat , except in the case where the subject becomes litigious , which is not to be extended to every diligence , in prejudice of puchasers of lands , whereby rights would become very uncertain , especially when irredeemable rights are purchased ; but against the purchasing of bonds , annualrents , or wodsets , it may be more extended as in the former case , february . . neilson contra ross of pittendreich . this defence was also sustained , that the disposition was for a price payed , and for no anterior debt . and in the former case , bathgate contra bogil , the disposition after horning , though it was in the terms of sale , was only anulled , because it was granted for anterior debts , due to the buyer . fraud is no vitium reale , affecting the subject , but only the committer of the fraud , and these who are partakers of the fraud , as is clear by this statute , bearing an exception of lawful purchasers , not partakers of the fraud . but where the right purchased , hath evidence of fraud in it self , the purchaser , though for a just price payed , is thereby partaker of the fraud , and so may be excluded , as if the right acquired bore , for love and favour : or if it be betwixt conjunct persons , the purchaser must instruct the cause onerous ; as when the right purchased was from one brother to another , december . . gordoun of 〈◊〉 contra ferguson of keroch . january . . andrew crawford contra james ker. eightly , though the manner of probation by this statute , be by the oath of the purchaser , or write : yet the narrative of such rights , being betwixt conjunct persons , albeit it bear causes onerous ; must be otherways astructed , wherein witnesses , and other exidences will be received , which is not only sustained . as to dispositions by parents to children , but by brothers and sisters to brothers , or to good-brothers and good-sisters : yet not to two persons marrying two sisters , or two brothers , where there is but affinitas affinitatis : it hath also been extended to uncle and nephew , where other circumstances concurred , january . . kinloch of gourdy contra mr. george blair . december . . creditors of tarsapy contra laird of kinsans . the like effect is in rights , acquired in name of children in the family , who have no visible estate , for these are held fraudulent , and may be affected for the fathers debt , as hath been frequently decided . this case only remains , whither a notour bankrupt may prefer one creditor to another , though neither have done diligence . the tenor of the statute favours the negative , annulling alienations by bankrupts , not being for an equivalent and necessar cause ; and therefore , it is not safe to purchase from such , even by buying . . spuilzie is the taking away of moveables without consent of the owner , or order of law , oblieging to restitution of the things taken away , with all possible profits , or reparation thereof , according to the estimation of the injured , made by his juramentum in litem . thus things stollen or robbed , though they might be criminally pursued , as thest or robbery : yet may they be civily pursued as a spuilzie . spuilzie , inurit labem realem , whereby the goods may be recovered from purchasers , bona fide , november . . james key contra leonard carnagy and others . the profit of things spuilzied , are called violent profits ; because they are not such ordinary profits , as the persons spuilzied used to make of the goods , but such as he might have made thereof . where the things spuilzied have profits , as horse , oxen , or other cattel , and instruments , or other tools ; but corns and the like have no profits . the violent profits of a horse spuilzied in labouring time , was modified to five shilling scots , per diem , february . . lord justice clerk contra home of lenthil : but the modification depends much upon the violence , and attrocity of the spuilzie . . in spuilzies , the pursuer needs no other title but possession , from whence , in moveables a right is presumed ; and therefore , spuilzie of goods in coffers was sustained upon the pursuers having the keys , and the defenders breaking up the coffers , not being done by parents or masters , july . . rachel maxwel contra mr. hugh maxwel and marion maxwel . a relict in possession was admitted to pursue a spuilzie of corns , sowen and reaped by her husband , though not comfirmed by her , july . . janet russel contra spuilzies must be by unlawful medling , or accession thereto ; and therefore , it was found relevantly lybelled , that the goods spuilzied were immediatly received into the defenders house , january . . earl of roxburgh contra laird of lugtoun . the like was found , that it was spuilzie in the case of accession ; because the defender received the spuilzied goods , that night in his byres , december . . contra dennistoun . yet a spuilzie was not sustained against a person as accessory , who being charged by the messenger , did appryze the goods upon the ground , though in other solemnities the poynding was illegal , for which he was not answerable , hope , spuilzie , patrick butter contra alexander gordoun . but where the pursuer transacted with one of the parties guilty for good deed , all the rest were freed , though he may freely pass or forbear the pursuit of any of them , june . . dowglas contra leich and jamison . yea , sums were proven payed by witnesses , which was found sufficient . the like found by a discharge to one of the parties , though it bore not satisfaction , hope , spuilzie , mr. john dowglas contra young , though the discharge did bear , but prejudice of the spuilzie against the rest . . in spuilzie , the fact being proven or acknowledged , as to some particulars libelled , the pursuers oath will be admitted to prove the rest of the libel , though consisting of divers kinds of things , march . . brown contra murray . . spuilzie is elided , if the deed was warrantably done , at least , bona fide , by a collourable title , as by custome , and so the spuilzie of a horse was elided , because he was medled with , as being carrying corn out of the thirle to another miln , according to the custome of the countrey , whereby the horse is forefaulted to the master of the miln , and the corn to the miller , january . . menzies contra but not eleided by a disposition of the goods libelled , for relief , being medled with , brevi manu , seing distress was not instructed , july . . kirkwood contra ferguson , so where there was a disposition , and instrument of possession , albeit the disposition was , omnium bonorum , and possession retained for two year , yet it was found sufficient , contra spolium , especially , seing there was no violence used in attaining real possession of the goods , january . . halbert irving contra mccairtnay . and the spuilzie of a horse was eleided , because the pursuer having committed hamsucken , and slaughter , was taken by the defender with a horse , as being bailzie of the barrony where he did it , january . . john bailie contra lord torphichen . and a spuilzie of corns was eleided by the defenders entring in possession of the corns upon the ground , whereupon the corns were growing , hope , spuilzie , elliot contra lord bucleuch . it was also eleided as to a messenger , because he poynded the goods , libelled by vertue of letters of poynding , directed against the pursuer , unwarrantably raised , because there was no conclusion in the decreet against him , march . . scot contra catharin banks . the like , if the defender meddle with goods by a title or warrand from any other party to whom they belonged ; and though this be contrary the libel , it will be sufficient : and if either party alledge right , the most pregnant will be preferred : and it was found sufficient to evite spuilzie , because the defender bought the horse in question from the pursuers son , who had ridden upon him to several mercats , as his own horse , by the space of nineteen days , nic. hic . ross contra stuart . . the second exception in spuilzies , is voluntar delivery , which was sustained , though it seemed contrair the libel , spotswood , spuilzie , margaret cunninghame contra peter mcculloch , nic. de . vi . bon . rapt . russel contra lord ross. . the third exception against spuilzie , is , that the goods libelled were lawfully poynded , for though the decreet , whereupon the poynding was , should be reduced for want of formality ; yet it will not be a spuilzie , unless it proceeded , mala fide , or , spreta authoritate judicis , as when a decreet proceeded , and was used after advocation , intimated to the party , though the inferiour judge refused to receive , or record it judicially , or when the debt contained in the decreet , was throughly satisfied before the poynding , spots . spuilzie , contra brown. but the exception of poynding will be elided by this reply , that the pursuer offered the sum poynded for the time of the poynding , when the poynded goods were offered . . the most ordinar reply against poynding , is that the goods were not poyndable , as being pleugh goods , which are not poyndable the time of pleughing the ground , if there be any other goods upon the ground sufficient for paying the debt , according to the act of parliament , . cap. . nic. de . vi . bon . rapt . hepburn contra binning . and morison contra fordice . and it was found sufficient , that there were other goods upon the ground , without necessity to alledge , that they were the debitors proper goods ; or that the goods poynded were then in labour , being two or three days before in the pleugh , december . . gibson contra corsbie . yea , poynding of plough-goods was found a spuilzie , being done in the ordinary time of plowing , though the goods were not yoked that year , because of frost , june . . wood contra stuart . there is an other reply against poynding , that the goods poynded were not the debitors , but an other offered to depone they were his , or that this offer was made by his warrand , or by his servant , but it is not enough that this offer was made by these who had no direct , or presumed commission , july . . corbet contra stirling . this offer must be made before the solemnity of poynding be ended , but was not sustained , being offered about an hour after , to give summar restitution july . . cots contra harper : but this oath will not exclude probation , that the goods were the debitors , or anothers by way of declarator , that thereafter they might be affected by poynding , but is only like an oath of calumny , that in possessorio hinders poyncing . . the last exception against spuilzie , is restitution of the goods spuilzied within twenty four hours , re integra , it was also eleided by restitution of the goods within fourty eight hours , they being accepted , and keeped by the pursuer , nic. de vi . bon . rapt . sym. contra ambross ; but not eleided by restitution within twenty four hours , not being re integra , the spuilzied horse his back being broken by the spuilzier , nic. ibid. robert knows contra joseph lermont : neither eleided by restitution within four or five days , before which , the pursuit was intented ; and here the spuilziers brother had taken away the goods shortly after restitution , january . . contra forrester . . there is also a common exception against spuilzies upon prescription of three years , they not being pursued within that space , after the committing thereof , and that by express statute , par. . cap. . but this prescription is only against the spuilzie as such , so that it taketh away the priviledge thereof , as to the violent profits , & juramentum in litem ; yet may it thereafter be pursued , as wrongous intromission , for restitution only ; and if many be pursued , they are not lyable , in solidum , but equally , unless a greater intromission of some of them be proven , january . . captain strachen contra george morison , which also is competent in many cases , where spuilzie is either not sustainable , or eleidable in its atrocity , as a spuilzie , nam levis exceptioexcusat a spolio , and yet action for restitution remains : and sometimes the spuilzie may be restricted thereto , if the pursuer please , before 〈◊〉 , so to do ; or otherways he hath therefore a several action , as if spuilzie be pursued , and an exception of lawful poynding admitted to be proven , the defender will be assoilzied from the spuilzie , even though the decreet , whereupon the poynding proceeded , be reduced for informality ; and yet he will have a several action for restitution , which may be also decerned in the action of spuilzie . but spuilzie is not eleided by masters of the ground , their bringing back the goods of their tennants , by vertue of their hypotheck , ex intervallo , february . . park contra cockburn of roslin . neither was the spuilzie of a horse eleided , because he was found in the skaith , and was offered back within fourty eight hours , upon payment of the skaith , unless he had been put in a poind-fold , or safe place , having water , grass , or fodder ; and that by the sentence of a judge the skaith had been estimate , and the horse poynded therefore , february . . duncan contra kids . december . . mr. john beaton contra home . so spuilzie was not eleided upon alledging the pursuer had spuilzied , or recept as much of the defenders goods , by the act . par. . & act . par. . king james . unless the pursuer had been a broken man , and notorious thief , of a clan who could not be reached by the ordinary course of law , july . . james baird contra parochioners of fivie . . intrusion and ejection , are delinquences in lands and immoveables , as spuilzie is in moveables , and they differ in this , that intrusion is the enter ing in possession , being for the time void , without consent of the parties interressed , or order of law : but ejection , as its etymon intimats , is not only the unwarrantable entring in lands , but the casting out violently , of the then possessor : in this there is violence , in the other wrong , but no violence in the entry , though it be a violent detention : and in either case , the injured must be at least repute in possession : but as the possession must begin by some bodily act , it may be continued alone by the act of the mind , willing , or affecting the possession , which is conjectured or presumed from circumstances ; for , if it be but a short time since the possessour did corporally possess , and nothing appear that he hath relinquished his possession , or his affection thereto ceased ; then he is still possessor , and is so presumed , because of his interest ; but if his abstinence be total , or long , that he hath retained nothing , as keys , or keeping of doors closs , then the possession is holden as 〈◊〉 : and he who enters by a real or colourable title , is no intruder , and cannot be extruded , but by warning , and process of 〈◊〉 ; and therefore , though intrusion be said to be in the void possession , it is only meaned ; as to corporal possession , there being still a presumed possession animo on the part of the injured in other things , intrusion and ejection do in all things agree , ejection must be pursued within three years , pa. . cap. . which is extended to intrusion by these words of the statute , that eject and others of that nature , be pursued within three years , after committing thereof , february . . 〈◊〉 of craighall contra . ejection is only competent to the natural possessors , possessing by themselves , their hinds and cottars ; but not to an heretor for ejection of his tennants , unless the tennants concur , november . . 〈◊〉 〈◊〉 contra bruce . hope , ejection , margaret cunninghame contra peter 〈◊〉 . hence it is , that intrusion or ejection is not committed , but by entering in natural possession ; or at least , by out-putting , or in-putting of tennants : for though possessours invert their masters possession , and pay their rents to another , this will not infer against them intrusion or ejection : but in both these cases , there are other remeids in law , by removing , or action for mails and duties , which is competent against intrometters : though ejection and intrusion prescrive by this statute , yet it is only as such , for taking away of its singular priviledges , viz. the violent profits ; for though they be not pursued within three years , yet they are competent , being libelled , and restricted to restitution of possession , and for the ordinary profits ; and in this they differ from removing , which cannot be pursued but upon warning fourty days preceeding whitsonday : but these may be pursued at any time , without warning , march . . walter hay contra mark ker. spots . ejection , james mowat contra james davidson . july . . mcphedrick contra 〈◊〉 . yet where the pursuers title was only an assignation to a years tack , though he restricted the ejection to the possession , and the ordinary profits , the same was not sustained , in respect the years tack was long before expired , and was only sustained for damnage and interest , in not possessing his years tack , during the time , and for the profits thereof during that year , december . . lord lowdoun contra laird of capringtoun . ejection and intrusion are founded , especialy upon possession , and the pursuer needs not dispute his right , neither his entering in possession , which , though it were vitious ; yet if it be continued by a considerable space , and the 〈◊〉 being then ejected , he will not be excluded , by alledging his entry was vitious , as if he had entered in the vice of a tennent , removed by the defender : yea , after the death of the person ejected , the action was sustained at the instance of his appearand heir , upon condition he infeft himself before , extracting nicol . de haeredibus , blair contra mathie . as also ejection was sustained at the instance of infants , whose father died in possession , and had an old infeftment , albeit a decreet of removing was obtained against the mother , they not being called ; nor was the ejecter allowed , in hoc 〈◊〉 , to dispute the infants right : but spoliatus was found instantly to be restored to possession , february . . scot contra earl of home . . ejection or intrusion , are excluded , by alledging the pursuer relinquished the possession , or did voluntarly remove ; especially , if he be the 〈◊〉 tennant , july . . laird of 〈◊〉 contra 〈◊〉 which must be proven by write , or oath of party , if there be no matters of fact , from whence the dereliction doth evidently appear , as transporting of the parties goods , june . . collonel ruthven contra gairn . this was also found proven by instrument , and the witnesses insert , though the pursuer libelled violence , contrair to the instrument , hope , ejection , cunninghame contra mcculloch . and also found proven by a renunciation , attested by an act of the defenders court , and other circumstances , hope , ejection , laird of monyntusk contra his tennants . the like upon voluntary removing and renuncing in the pursuers masters court , june . . brown contra 〈…〉 it was also found probable by witnesses , viz. that the keys were delivered , though the pursuer offered to prove violence , nicol. de vi . bon . rapt . home contra dickson . and it was elided by voluntar removing , or renuncing , after the defenders entry . but ejection was not elided by a personal obliegement , to possess the ejector , or a decreet arbitral ; seing the entry thereto was not by order of law , or consent to possess , spots . arbiter , wood contra scot. violent profits in ejection and intrusion within burgh , are ordinarly sustained for the double mail : but in landward , the violent profits are accompted by the quantity of the seed the land can sow , and the increase such land can yield , deducing the expences of seed and labourage , and the profits the sums can yield which the land can hold , wherein are comprehended the calf , and milk of cows ; and the wool , lamb , and milk of sheep , deducing the expences of hirding . in ejection and intrusion , the defender must find caution for his violent profits at the first term after litiscontestation ; or otherways , decreet is to be given against him , parl. . cap. . succeeding in the vice ; is a kind of intrusion , but because it is ordinarly consequent upon removing , it is spoken to , title tacks . . molestation is the troubling of possession , chiefly in and about marches of lands , whereby the party injurer is oblieged to refound the damnage to the party injured ; and the marches being cognosced , he will be decerned to desist , and cease from troubling in time coming , whereupon all execution personal is competent . it is also competent when possession is troubled otherways , and there is no special remeid at the heretors instance , as upon taking away the tennants corns upon the marches , november . . laird of dalgety contra the constable of dundee : this is ordinarly a mutual action , and probation allowed hinc inde , for it is the same with the roman action finium regundorum ; and in case of further trouble , lawborrows and contraventions will be sustained , after the marches are cognosced , which otherways can have no effect while the marches and possession are dubious . the process whereby molestation is determined , is called a cognition , the whole course whereof is clearly ordered , and set down by the statute of session , ratified in parl. . cap. . whereby it is clear , that molestations were of old decided by sheriffs , bailiffs of regalities , and other judges ordinar , where the lands lay , by the determination of an assize or inquest of the best and worthiest of the countrey , and they may be still so pursued , but if before the session ; the lords are not to hear and determine the cause themselves , but to remit the same to the judges ordinar , or in case they be suspect , to name others , as judges delegat for that act , except only in those molestations , which do concern the lords of session , which are to be heard and determined before themselves : the said judges ordinar , or delegat , are first to hear parties debate , and to make litiscontestation , and so much thereof as is found probable by witnesse , is to be done by an inquest , the most part whereof is to be landed-men , worth three hundred merks of rent and above , in the paroch where the lands lay , or failing them , in the next adjacent paroches , as is fully set forth in the said statute . in these cognitions ; the superior must be called in all the dyets of process , hope , cog . calden contra purvess of corfindie . and if the cognition be pursued by a liferenter , ●or others , the heretor must be called , or otherways the cognition is null , ibid. lord lothian contra traquair . . breach of arrestment , and deforcement , are by our law and custome in all things equiparat , both being violations of legal acts ; and concerning both , it is statute , par. . cap. . that breakers of arrestment , or the deforcers of poinding , or any other legal execution , shall escheat all their whole moveables , and the party injured shall be first payed of his debt and damnages , for which he shall have ready execution against the injurer , which is further extended , par. . cap. . that the one half of the escheat of the moveables shall belong to the party injured , if the executer of the process , or letters , be deforced or molested in the execution , which yet shal stand as a valid execution , which must be understood in executions of summonds , or charges of horning though the latter act be more favourable to the injured ; yet being in his favour , he may make use of the first , which wil infer a personal obliegement upon the deforcer , or breaker of arrestment , to pay the sums due to the injured , whereupon the arrestment , or execution did proceed , with the damnage and interest , july . . mitchel contra laws and stuart . the like was found in the deforcement of a caption , and that the pursuers having insisted criminally , ad vindi i am publicam , did not hinder him to insist civilly for privat interest , december . . murray contra french of frenchland , which takes no place where the arrestment is not for debt , but upon conraverted rights and possession , which hinders not continuation of possession , but only innovation , as when tennants continue to pay contraverted ferms to the former possessor , june . . kings advocat and kirkaldy contra tennants : or the taking away corn sown upon contraverted ground , the first year by the sower , july . . seaton contra tennants of william foulis . neither is it competent against any , but those to whom intimation of the arrestment , or citation thereon was made , ibid. february . dawson contra bairdie . deforcement of a poynding was elided , because the same was not done in lawful time of day , but before the sun , but not elided because the goods were attested to pertain to another party , whose oath had been made thereon the time of the poinding ; neither when keeped on the ground for the masters rent , by his servants , seing they exprest not that cause , nor craved not security therefore , from the poynder , february . . laird of halkertoun contra kadie and grieves : but if it had been expresly for the rents resting , it would not infer deforcement , if such were truely resting . neither did resistance of poynding of plough-goods in labouring time , where there were other goods sufficient , infer deforcement , february last , . abbot of kilwinning contra tennants : stopping of poynding by the master of the groundor landlord of an house , for that years rent , infered not deforcement , december . . . dick contra lands ; or that he hindred entry , unless there were special warrant in the letters to make open doors . . contravention as it signifies any act done against lawborrows , so it implys the obligation of the contraveener and the personal right , which the user of the lawborrows hath thereby , and likewise the action , by which it is pursued . for the uptaking of all , it must be considered what lawborrows are , which the word it self insinuats to be caution , found to do nothing but by order of law ; for a burrow or burgh in our ancient language , is a cautioner , and lawborrows is caution to keep the law ; the reason hereof is , the safety and security of the people , who in equity have no more then the reparation of the damnage they sustain through delinquences , or illegal acts : but to prevent such , and terrifie evil doers , a greater penalty then reparation is appointed , according to the quality and estate of the injurer par. . cap. . the half of the penalty is applyed to the injured , and the other half is publick . par. . cap. . by the narrative of which statute , it is clear , that before lawborrows were granted , only for safety against bodily harm , in the persons of the complainers ; yet for the reason therein expressed , the same was extended , that the complainers , their wives , bairns , 〈◊〉 and servants , shall be harmless and skaithless in their bodies , lands , tacks , possessions , goods and gear , and no ways molested or troubled therein , by the persons complained on , nor no others of their causing , sending , hounding out , ressetting , command , assistance and ratihabition , whom they may stop , or let , directly or indirectly , otherways then by order of law , or justice ; by the same statute it is also evident , that lawborrows are granted upon the supplication of parties fearing harm , who without citing the other party , but making faith upon their complaint , have letters of horning , summarly to charge the party complained on , to find caution , ut supra ; and if caution be found , the action of contravention doth proceed upon , and conform to the act of caution : but if obedience be not given , the complainer may proceed to denunciation or caption ; but the contravention will proceed , though there be no caution found , but only a charge upon the letters , without denunciation , unless the charge be suspended , as uses to be done , when the penalty charged for is exorbitant , and not conform to the act of parliament , january . . john semple contra cunninghame . contravention may proceed upon any delinquence , according to the tenor of the act of caution , or letters of lawborrows , which , though very comprehensive , yet is not extended to acts done without order of law , being matters of inconsiderable moment , as the tilling up of some furrows in a march , the same being offered to be laid down , and the damnage to be repaired , nic. hic , nicolson contra hay . neither is it sustained upon any illegal deed , when the matter of right was dubious , as in matters of molestation , before the cognition , or before that the marches be clear , spots . contravention , laird of balcaskie contra florence strang. neither upon a deed done by a colourable title , though afterward reduced , as entering in possession by a null decreet , hope , hic , george moorhead contra laird of barskub . neither upon pasturing upon bounds contraverted , or where there was no violence , nor unlawfulness in pasturage , upon clear marches , july . . laird of grange contra lesly . neither upon a deed of spuilzie against the pursuers tennant , not complaining , though the lawborrows bears , men-tennants and servants to be harmless , which was esteemed , stilus curiae , january . . grant contra grant , and february . . lindsay contra dennistoun . neither was it sustained upon deeds done by the defenders tennants , without alledging command or ratihabition , unless the deeds be manifest , or known to their masters , as in conveening dayly , and cutting anothers woods , july . . vauns contra laird of balnagown . neither upon deeds done by servants without warrand , unless they be menial servants , hope , bic , john galbraith contra william anderson : yet contravention was sustained , upon hurt done to the pursuers servant , though he was then rebel , being afterwards relaxed , hope , horning , bruce of clackmannan contra bruce . it was also sustained upon attempts of injury , though there was no hurt , as a stroke on the cloathes , and one offer to strike with a whinger , december . . greenyards contra clackmannan . and also upon a violent troubling the pursuer , without order of law , though without damnage , spots . hic . laird of balcaskie contra florence strang. it is also sustained upon a delinquence , though there be another action competent therefore , as for molestation , november . . dundass contra cuming of ironside : or for violent possession after warning , hope , de actionibus , cuthbert cunninghame contra but if the other ordinar action was insisted in , and decreet obtained , contravention also cannot be pursued , though the other were offered to be renounced , hope , contro . johnstoun contra sir john charters . contravention was elided by granting a factory after the deeds lybelled to do the like , reserving only damnage and interest , february , . . dennistoun contra lindsay . contravention on several deeds sustained , separatim toties quoties : and against many contraveeners , contraveening in one act ; but in such cases the lords will modifie and lesten the penalty , within the rate of the act of parliament , novemb. . 〈◊〉 . dundass contra cuming of ironside . nic. contro . sir john scot contra barns . contravention is not found pursuable before any inferiour judge , otherways the decreet thereof will be null by exception , july . . kennedy taylzeor contra kennedy of garriehorn : yet it was sustained , where the matter was small , and the parties poor , march . . blair contra marshel . in contraventions , the kings advocat must concur for the kings interest , but he cannot insist alone , as when the private party hath discharged the deeds , even after the intenting of the cause , hope , entro . forrest contra malcolme turnbul . title x. obligations conventional , by promise , paction and contract . . the original of conventional obligations . . the acts of the will , desire , resolution and ingagement , and their effects . . pollicitation or offer , and its effects . . promise . . contracts in favours of third parties valid . . pactions , and how words are obligatory . . naked pactions . . pactum corvinum . . locus penitentiae . . promises and pactions are morally obligatory , by canon law and our customes . . kinds of contracts amongst the romans , with the exception , de non numerata pecunia , and homologation . . distinction of contracts according to the matter . . common requisits to contracts . . permutative contracts , and the equality to be keeped in them . . latent insufficiency altereth contracts . . how far mutual contracts are effectual to assignays , without performing the cedents part . . loan comprehendeth , mutuum and commodatum . . in mutuo transfertur dominium , senatus consultum macedonianum , & velleianum . . mutuum can only be in fungibles and quantities . . specialities , in mutuo , and bills of exchange , mutuum strict juris . . commodatum described . . borrowers diligence . . precarium . . commodatum , how ended . . actions arising from commodatum . . mandatum , or commission . . the terms of mandats . . acceptance of the mandatar . . mandats in things lawful . . acceptance must be freely . . mandats are personal . . how far mandatars may intrust others . . mandats are ambulatory , and revockable by the mandant . . mandatars must perform , in forma specifica . . mandatars diligence . . the obligations of mandatars . . kinds of mandats . . tacit mandats . . more mandatars , how far they may act severally . . whether joynt mandatars are lyable , in solidum . . the effects of general mandats . . what is special in offices amongst mandats . . specialities of trust amongst mandats . . obligations of exercitors . . obligations of institors . . the nature of custody , or depositum . . diligence of depositars . . nautae caupones stabularij . . depositation of writes . . sequestration . . consignation and trust. . depositation admits no compensation . . but admits retention . . joint depositars , how far lyable . . the nature of pledge , or pignus . . specialities in pledges . . how pledges may become irredeemable . . clauses irritant in pledges . . hypothecation of the cropt or goods for the rent . . hypothecation of the teinds , for the teind-duty or stipend . . exchange and sale , wherein they agree and differ . . what things are lyable to sale , and of buying of pleas , by the members of the colledge of justice . . effect of earnest . . reversion of things sold. . clauses irritant , or resolutive in sale . . knowledge of acquirers of an anterior incompleat right , how effectual . . after sale , before delivery , to whom the thing perisheth . . location described , and compared with sale. . whether sterility frees from the pension . . the effect of vastation . . location is personal , and ceaseth with the constituents right . . usury , or annualrent of money . . annualrent due by law , without paction . . the conductors obligation . . the locators obligation . . the effect of society . . the matter of society . . the nature of society , and equaquality therein . . the power of the partners in society . . how society ceaseth . . partners acting severally , how these things accress to the society . . diligence of partners . . contracts mediat and immediat . . kinds of cautioners . . cautioners how far lyable . . cautioners for executors . . cautioners for tutors and curators . . cautioners for the factors in camphire . . cautioners for loosing arrestments . . cautioners are lyable according by the oath of the principals . . cautioners as law will. . when the cautioners are lyable , and the principal not . . cautioners , when lyable , in solidum . . relief of cautioners . . effects of promissary oaths . . delay . . interest . . profite of performance . . time of performance . . place of performance . . maner of performance . from obligations obediential , flowing from the will of god ; order leads us over to obligations conventional , arising from the will of man , whereby our own will tyeth us in that , wherein god hath left us free ; for as obligations obediential descend from the principle of obedience to god , and have their rise and reason from his soveraign power to command , and our absolute obliegement to obey ; so in his gracious goodness , in the greatest part , he hath left us free , and hath given power to none to exact , or compel us : yet so as he hath given that liberty in our power , that we may give it up to others , or restrain and ingage it , whereby god oblieges us to performance , by mediation of our own will ; yet such obligations , as to their original , are conventional , not obediential . conventional obligations do arise from our will and consent ; for as in the beginning hath been shown , the will is the only faculty constituting rights , whether real or personal ; for it is the will of the owner , that naturally transferreth right from him to the acquirer : so in personal rights , that freedom we have of disposal of our selves , our actions , and things which naturally is in us , is by our ingagement , placed in another , and so ingagement is a diminution of freedom , and constituting of power in another , whereby he may restrain , or constrain to the doing or performing of that whereof we have given him power of exaction , as in the debitor , it is the debitors duty or necessity to perform ; but it is not every act of the will that raiseth an obligation , or power of exaction ; and therefore , that it may appear , what act of it is obligatory , . we must distinguish three acts in the will , desire , resolution and ingagement ; desire is a tendency or inclination of the will towards its object , and it is the first motion thereof , which is not sufficient to constitute a right ; neither is resolution ( which is a determinate purpose to do that which is desired ) efficacious ; because , whatsoever is resolved or purposed , may be without fault altered , unless by accident the matter be necessar , or that the resolution be holden forth to assure others : the alteration whereof , without evident ground , importeth levity and inconstancy , and sometimes deceit and unfaithfulness : but still resolution is but an act of the will with it self , as deliberation is of the understanding , acting with it self ; and it is unquestionable , nothing can be oblieged to it self , though it be oblieged to god , or an other in relation to it self ; and therefore , if a party should express a resolution , to give unto , or bestow upon an other any thing , though that resolution related to the good of an other ; yet it is not obligatory , nor can that other compel the resolver to perform , though it were never so fully cleared , or confirmed by word or write . it was found , that a resolution exprest both by word and write , in favours of near relations , did infer no obligation , february . . mr. john kincaid contra mr. alexander dickson . it remaineth then , that the only act of the will , which is efficacious , is that , whereby the will conferreth or stateth a power of exaction in an other , and thereby becomes ingaged to that other to perform . . again , we must distinguish betwixt promise , pollicitation , or offer , paction and contract ; the difference amongst which , is this , that the obligatory act of the will , is sometime absolute and pure , and sometime conditional , wherein the condition relates either unto the obligation it self , or to the performance , such are the ordinar conditional obligations ; which , though they be presently ( upon the granting thereof ) binding , and cannot be recalled ; yet they are only to be performed , and have effect when the condition shall be existent , but when the condition is relating to the constituting of the obligation , then the very obligation it self is pendent , till the condition be purified , and till then it is no obligation ; as when any offer or tender is made , there is implyed a condition , that before it become obligatory , the party to whom it is offered , mustaccept ; and therefore , an offer by a son , to pay a debt due by his mother , if it were made known to be accepted at such a time , and in such a place , found not obligator after the mothers death , unless it had been so accepted , june . . alexander allan contra mr. john collier . so then , an offer accepted is a contract , because it is the deed of two , the offerer and accepter . . but a promise is that which is simple and pure , and hath not implyed as a condition , in its being the acceptance of another , in this grotius differeth , de jure belli l. . c. . § , . holding , that acceptance is necessar to every conventional obligation in equity , without consideration of positive law ; and to prevent that obvious objection , that promises are made to absents , infants , idiots , or persons not yet born , who cannot accept ; and therefore , such obligations should ever be revockable , till their acceptation , which in some of them can never be : he answereth , that the civil law withholdeth , that such offers cannot be revocked , until these be in such capacity , as to accept or refuse ; though promises now be commonly held obligatory , the canon law having taken off the exception of the civil law , de nudo pacto ; it is true , if he in whose favours they are made , accept not , they become void , not by the negative none acceptance , but by the contrair rejection : for as the will of the promiser constitutes a right in the other ; so the others will by renouncing , and , rejecting that right , avoids it , and makes it return . this also quadrats with the nature of a right , which consisteth in a faculty or power , which may be in these , who exerce no act of will about it , nor know not of it , so infants truely have right as well as men , though they do not know , nor cannot exerce it themselves : promises with us are not probable by witness , though within an hundred pounds , july . . james donaldson contra harrower . february . . william 〈◊〉 contra thomas robertson . the like was found of a promise ingaging for a party , who bought goods , not being a partner in the bargain ; for promises , when parts of bargains about moveables , are probable by witnesses , june . . john deuar contra thomas brown. . it is likewise the opinion of molina , cap. . and it quadrats to our customes ; that when parties contract , if there be any article in favour of a third party , at any time , & jus quaesitum tertio , it cannot be recalled by both the contracters , but he may compel either of them to exhibite the contract , and thereupon the oblieged may be compelled to perform . so a promise , though gratuitous , made in favours of a third party , that party , albeit not present , nor accepting , was found to have right thereby , november . . achinmoutie contra hay . promises dependent upon acceptance , may either be made by way of offer , or when the promise requires some things to to be done on the part of him to whom it is made , not as a condition annexed only to the performance , for then the promise is presently obligatory , though the effect be suspended , till the condition exist ; but if the condition be so meant , or exprest , that it must preceed the obligation it self , as in mutual contracts , the one party subscribing , is not oblieged untill the other also subscribe , or that the other partie accept or consent . and so a contract being registrat , was found orderly proceeded , though he who registrated it had not subscribed , seing at the discussing he did summarly consent to the registration thereof against himself , february . . mcduff contra mcculloch . hence is our vulgar distinction betwixt obligations and contracts , the former being only where the obligation is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 on the one part ; the other where the obligation is 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 an obligation on both parts . . pactum , or a paction , in the law is defined , duorum pluriumve in idem placitum consensus atque conventio , l. . ff . de pactis , it is the consent of two or more parties , to some things to be performed by either of them ; for it is not a consent in their opinions , but a consent in their wills , to obliege any of them ; and it is much to be considered , whether the consent be given , animo obligandi , to obliege , for the same words will sometime be interpret as obligator , and sometimes not according to the circumstances , as if it be jestingly or merrily exprest , whatsoever the words be , there is no obligation ; because thereby it appears there is no mind to obliege ; or if the words be in affairs , or negotiations , they are interpret obligator , though they express no obligation but a futurition , which otherways would import no more then a resolution , as titius is to give mevius an hundred crowns in any matter of negotiation , would be obligator ; but otherways would be no more , but an expression of titius his purpose , so to do ; yet because it is inward and unknown , it must be taken by the words or other signs , so if the words be clearly obligator and serious , no pretence , that there was no purpose to obliege , will take place , if the promise be pendent upon acceptation , and no more then an offer , it is imperfect and ambulatory , and in the power of the offerer , till acceptance , and if he died before acceptance , it is revocked as a commission or mandat , which necessarly imports acceptance , expires by the mandators death , morte mandatoris perit mandatum , so acceptance cannot be by any third party , unless he have warrand for that effect ; and so if a promise be made by one to another , in favour of a third , importing the acceptance of that third , it is pendent and revockable by these contracters , till the third accept . . the romans , that they might have clear proof of pactions and agreements , would second none with their civil authority , but such as had a solemnity of words , by way of stipulation , whereby the one party going before , by an interrogation , other party closed by an answer conform , which was both clear to the parties and witness ; or otherways , unless there were the intervention of some deed , or thing beside the consent , or that it were a contract allowed of the law , or such other paction as it specially confirmeth ; without all which , it was called nudum pactum inefficax ad agendum . we shall not insist in these , because the common custome of nations hath refiled therefrom , following rather the canon law , by which every paction produceth action , omne verbum de ore fideli cadit in debitum , c. . & . de pactis . and so observeth guidilinus , de jure , nov. l. . cap. . § . ust . and corvinus de pactis , we have a special statute of session , november . . acknowledging all pactions and promises as effectual : so it hath been ever decided since , january . . sharp contra sharp . . and even pactum corvinum de haereditate viventis , is found binding , though among the most odious , july . . mr. james aikenhead contra both we l. but , pactum de quota litis , whether it be a naked paction or promise , or a mutual contract , is rejected both by the civil law and our custome , whereby advocats , in place of their honorary , take a share of the profit of the plea , to prevent the stirring up , and too much eagerness in pleas , which was extended to an agent or writer , if he had made such a paction before , or during the plea , but not after all plea was ended , having given bond to an appear and heir , to denude himself of a right he had acquired for sums of money , getting his expenses , and a fourth part for his pains and hazard , february . . catharine home contra mr. archibald nisbit writer . yea , an advocat taking assignation to a part of a plea , it was found , pactum de quota litis , and process was thereby excluded , though proponed by the debitor , and not by the party with whom the paction was made , but it was not found probable by that parties oath alone , as being but one witness , june . . edward ruthven contra mr. william weir . pactions for money played , or other prize played at games of fortoun , such as cards , dice , &c. found valid as to the debitor , but the excress to be consigned for the use of the poor , if it exceed an hundred merk , by the act of par. . cap. . nevember . . patrick park contra nicol somervel . instead of the remeids of stipulation , the inconveniences that rejected naked paction among the romans , are remeided with us by this means . . first , if the matter be of great moment , and which requireth to its perfection , solemnity in write ; all such agreements , promises and pactions are accounted imperfect , and not obligator , untill write be subscribed , such as dispositions of lands , and heretable rights , tacks , rentals , and assignations to writs , &c. in all which , there is locus penitentiae , even after the agreement , and either party may resile till the write be subscribed and delivered . it was so found , though the buyer by a missive letter , wrote , that he thought he would not be able to furnish the money , but that he would not pass from the communing , seing there was no minute nor obligation otherways , january . . sir robert montgomery of skermorly contra john brown. so was it also sound , that a cautioner subscribing a bond , might resile before it was delivered by him , though it was subscribed , and delivered by the principal and other cautioners before , march . . megil contra thenilstoun . the like of a disposition subscribed , and left in the writers hand to frame a charter by , and a promise made after to abide by it , seing there was no delivery to the party , nor to the writer to be given to him , laird of innerleith contra byres . the like of a bargain of land , agreed upon by word , some things being done by the buyer in contemplation thereof , being restored , october . . oliphant contra monorgan . the like in a tack for years , which was found to endure but one year , though the tacks-man was thereby in possession , january . . lowry contra ker. july . . keith contra his tennents . yet a verbal tack for a year , found not to be past from , seing the tennant was thereby in possession , and had been warned , hope , process , john adamson contra john fullartoun . neither was it found competent to pass from a verbal rental , where the grassoum was payed , nicol. de migrando , angus contra mckie . neither to pass from a rental delivered to the chamberlain , to be given to the tennants upon payment of the grassoums , in so far as concerned these tennants , who had payed a part of their grassoums , nic. removing , eglintoun contra his tennants . neither was place found to resile from a transaction verbal , seing a considerable part of the soum transacted for , was satisfied , february . . kings advocat contra earl of nithisdale . neither is there locus poenitentiae in pactis liberatoriis , where any right is past from or restricted , and no new right to be made , december . . hellen hepburn contra sir james hamiltoun of orbistoun . the like in restricting an annualrent , to a part of lands affected therewith , february . . ker contra hunter , locus poenitentiae was found competent to a defender , who produced a right granted by the charger , with a blank assignation to instruct compensation , which he got up before it was delivered to the charger , or any decreet thereon ; and no minut of the decreet being extant , the suspender was found , in tuto , to make use of the right compensed on , december . . lord balmerino contra the tennants of northberwick , and creditors of sir william dick. yea , locus poenitentiae , was found competent to resile from a bargain , which might have been valid without write , because it was expresly agreed to be redacted in write , january . . robert campbel contra robert dowglas . the other remedy we have in stead of stipulation , is that by a statute of par. . cap. . all writes of great importance , are to be subscribed by the party , or by two nottars and four witnesses , wherein custome hath interpret matters of importance to be that which exceeds an hundred pound scots , and it is so far extended , that in matters where writes may , and uses to be adhibit , probation is not admitted by witnesses , but only by oath of party or write ; by these remeids very necessarly introduced , the inconveniencies foresaid are sufficiently caveat . . but to inquire whether promises or naked paction , are morally obligatory by the law of nature , few do contravert ; yet conanus , l. . c. . l. . c. . holdeth , that promises or naked pactions , where there is no equivalent cause onerous interveening , do morally produce no obligation or action , though in congruity or decency , it be fit to perform , least it be an argument of levity , against which , there is not only the testimony of the canon law , which insinuats an anterior reason to its own position ; but also the civil law l. . ff . de pactis , there is nothing so congruous to humane trust , as to perform what is agreed among them ; and the edict , de constituta pecunia , saith , it is suitable to natural equity , and saith farther , that he is debitor by the law of nature , who must pay by the law of nations , whose faith we have followed , l. cumamplius , ff . de regulis juris , but especially , this is confirmed by the law of god , prov. . . if thou be surety for a friend , if thou hast stricken thy hand with a stranger , thou art taken with the words of thy mouth , and the performance of words is acknowledged , a part of gods righteousness , nehemiah . vers . . hebrews . vers . . where it is acknowledged a part of gods faithfulness . and if promises were not morally oblieging , they could have no effect , but by positive law ( which is no more it self then a publick paction , laborans eodem morbo ) and then all pactions and agreements among nations would be ineffectual , and all commerce and society among men should be destroyed , pactions , contracts , covenants and agreements , are synonimous terms , both in themselves , and according to the recent customes of this and other nations ; so that it will be unnecessar to trace the many subtilties and differences amongst pactions and contracts in the roman law. . this much only in a word , their contracts were of four kinds , either perfected by things , words , write , or sole consent . contracts by intervention of things , remain naked pactions , ineffectual , until something be given or done by either party to other ; such are all these contracts , which are called innominat , which have not a special name and nature , acknowledged in the law ; and therefore , obliege not by sole consent , but the giving or doing of the one party only , obliegeth the other , as permutation , excambion , or exchange , when either a thing is given for another , or a thing is given for a deed , work , or use , or one deed or work is done for another , for the which , the law hath no special name ; and therefore , names them , do ut des , do ut facias , facio ut facias . amongst real contracts , the law numbereth matuum and commodatum , ( for which , we have but the one name of loan ) depositation or custody , pignus or pledge , of which anone . contracts perfected by words are stipulations , which being wholly out of use , we shall say no more of them , then that before is hinted . the third kind of contracts is these , which have their force by write ; and therefore , are called , chyrographa . the hand write , or subscription of the debitor , by which , he acknowledges the receipt of so much money , either in borrowing , or tocher , and accordingly is oblieged to pay at his day , or at the dissolution of the marriage ; these writes for the space of two years after their date and delivery , do not prove the recept of the money , as they express ; but during that time , if the creditor pursue thereupon , he must prove the delivery of the money : and the law presumes , that the write was given , spe numerandaepecuniae , upon hope of delivery of the money , but after the two years , it presumes the money to be delivered ; and therefore , then the write is 〈◊〉 , and is the cause of the obligation ; whether the money was delivered or not , after which , the debitor could not prove the not delivery of the money , even by the oath of the creditor , l. in contractibus , ff . de non numerata pecunia , but this is also changed with us , and with the neighbour nations , as baldimius testifieth , ad titulum , just. de lit . oblig . and boetius , de consuetudine , tit . de jurisdic . and rebuffus , ad proximum , const . reg. gloss . . num . . so now the custome is , that the write is not the substance of the obligation , but is only a probation of the promise ; though in some case it be a necessar solemnity , till which , the parties may resile , as hath been formerly showen : but the write being subscribed and delivered , proves from its date , and is valide , unless it be improven , yet so , as it admitteth contrair probation by the creditors oath or write , though the write bear the numeration of money , and do expresly renounce the exception of not numerate money . the last kind of contracts are these , which are by sole consent , as are the contracts of sale , location , or hyring , society , and mandat or commission ; but not only now these , but all other promises and pactions are valide contracts , by sole consent , except where write is requisite , as is before expressed , and this consent may be either express by word , write , or fact , by doing deeds importing consent , which therefore is called homologation , whereof acceptance of any right is a special kind , and it takes place in many cases , but it cannot take place unless it be proven , or presumed that the homologator knew the right ; and therefore , a bond drawen in name of several apprizers , to communicate their rights , and subscribed by some , found not homologat by one who subscribed not , seing it appeared not that he knew thereof , though de facto , he concurred in pursuits with these apprizers to exclude other rights , july . . telfair contra maxtoun and cunninghame . neither doth homologation take place , where the deed done may be attribute to another cause , and so possessing lands , whereof there was an infeftment granted , in satisfaction of a wifes contract , was not inferred , where she was appearand heir to another person infeft , december . . christian barns contra helen young. but such an infeftment was found homologat by seven years possession , and setting several tacks , as liferenter , though there was a general obliegement to infeft the wife in lands of such a value , none being exprest , though it was not instructed that the warrand of the seasing was ever known to the woman , and only generally mentioned in the band , but her knowledge was presumed after so many acts , november . . barbara skein and mr. david thores contra sir andrew ramsay . neither was a debt found homologate by payment on a decreet , being pronounced by the english officers , before law was patent , july . . jack contra fiddes . neither doth payment of one article of a decret arbitral , homologate others of a different nature , november . . pringle contra dune . homologation of a fathers legacy , as to his children , was inferred by his relicts confirming the testament without protestation , not to aprove that legacy , february . . bessie muir contra jean stirling . but where a relict in the confirmation , protested not to prejudge her own right , by a provision contained in the testament , in favours of her daughter , it was not found to homologate the same , july . . marjory murray contra isobel murray . homologation of a fewars right , not inferred by acceptance of two years duty , after declarator of the nullity , further then that no more could be demanded for these two years , june . . earl of cassils contra sir andrew agnew . neither did the payment of some years annualrent homologat a decret of poinding the ground , as being an act necessary to shun poinding of the tennants , february . . cockburn of piltoun contra halyburtoun and burnet . neither did a ministers receiving a tack duty of teinds , hinder him to reduce the tack thereafter , as being without consent of the patron , february . . mr. william chalmer contra wood of balbegno . neither did the payment of annualrent after majority , by a minor cautioner , paying with the principals money , and taking discharge to him only , hinder the minor to reduce , february . . sir george mckenzie contra mr. john fairholme . neither the payment of annualrent to an indigent sister , after majority , exclude reduction upon minority , but registrating the contract after majority , without charge or execution , was found to infer homologation , june . . helen homecontra rentoun justice clerk. neither did the confirming of a sum as moveable , hinder the confirmer to recover it as heretable , june . . kilgour contra menzies . december . . mitchel contra mitchel . neither doth the granting of a precept of seasing on obedience , import acknowledgement of right , or exclude reduction , and improbation , december . . mochrum contra myretoun and airiolland . neither was a decret found homologat by taking discharge , and giving a bond without abatement , which might import transaction , the granter being in the messengers hands , under caption , july . . thomas row contra andrew houston . neither was homologation of the truth of a debt , inferred by granting bond by a party in prison , for not finding caution , judicatum solvi , february . . mr. andrew burnet contra john ewing . neither did allowance to a tennant in his rent of annualrent payed by him , exclude reduction of the bond on minority , though the allowance was after majority , december . . james moodie contra mcintosh . neither accepting a bond joyntly with another , did homologate the right of that other , february . . veich contra ker and pallat. consent may be adhibit by signes , as the borrowing of a watch by a sign made by the borrowers hand , was found to obliege him to restore , though another instantly borrowed it that same way from him ; nor was the first lenders silence in an act so subite , interpret a consent to the second loan , july . . lord couper contra lord pitsligo . but a dumb man subscribing a discharge , was not found to infer his consent , in favours of his sister , seing he knew not what it imported , july . . hamiltoun contra 〈◊〉 . neither was consent to a march inferred by the one heretors building a dyke , and anothers silence for a time , january . . patrick nicol contra sir alexander hope . neither was the knowledge and silence of a husband , found to infer his consent to his future spouse , renuncing a part of her jointure , after proclamation , and yet going on in the marriage , january . lady bute and her husband contra sheriff of bute . and albeit consent to the contents of a write , is not always inferred from subscribing as a witness ; yet in some cases it is , when the consent relates not to the tenor , but to the time of subscribing , as an heirs subscribing as a witness to a write on death bed , june . . stuart of ascock contra stuart of arnholm . but the consent of a party to a decret , was not found probable by the decret , without a warrant under the consenters hand , seing it appeared that the minut of the decret , on the judicial consent was not instantly written , but long after , and it was no ordinar point in process consented to , but a transaction of a special nature , july . . laird of buchannan contra l. collonel osburn , but one of the parties having offered implement by instrument , 〈◊〉 by the witnesses insert , was not suffered to quarrel his consent , as not under his hand , february . . lowrie contra gibson . but consent was not found to be inferred by subscribing witness , as to the contents of the writ , february . . veich contra ker and pallat. yea , though the write did bear the witness to be cautioner , unless it were proven by the witnesses insert , that the write was fully read to that witness before he subscribed , july . . mr. airthur gordoun contra menzies . . all pactions and contracts , being now equally efficacious , may according to their subject matter be taken up thus ; they are either meerly gratuitous , as he who oblieges himself to bestow a horse , is thereby bound , but there is no obligation on the other ; but if the donation be perfected by a present tradition of the thing gifted , there is no obligation contracted on either hand ; or next the obligation is gratuitous on the one part as loan , which is either by the free lending of things , consistent in number , measure , and weight , which the law regardeth as a quantity , without regard to the individual body or thing , such being commonly of equal value , according to their quantities , these are called fungibles , as money , corn , wine , either where the loan is expresly , or implicitly , for the delivery of the like quantities , though not the same very thing . or otherways , it is the lending the use of a particular thing , to be delivered again , the same in substance , the former is called mutuum , the latter commodatum , in both , if the thing lent be not delivered , this will be effectual to cause it be delivered , though it be gratuitous , if it be in the lenders power ; but on the part of the borrower , it is onerous , for he is oblieged , either to restore the same body , or the same quantity . such also is commission or mandat , whereby the mandatar doth freely undertake , and is oblieged , susceptum perficere munus , and that freely ; but he is onerously oblieged to restore , what by the mandat he hath from the mandator , as the mandator is oblieged to refound him his interest and expences . such also is the contract of custody . or depositum , which is a kind of commission , whereby the depositar undertakes the custody of the thing depositate . pledge is also a kind of commission , whereby the thing impledged is given to a creditor for his security , that he may detain ; and in case of not payment , he may sell it and pay himself . the other contracts are such as are onerous on both parts , and obligator on both parts , and in them there is also always , quid pro quo , according to the nature and intent of these contracts , observing in them an equality of the deeds or things to be done or given on either part , as not being of their nature , or of the direct purpose of the parties gratuitous , or donative ; for uptaking of these , we must consider , that all that can come in these obligations , is either something to be given , or the use or fruit of something , or the labour , work , or deeds of persons : and among things , special consideration is had of money , which is the common token of exchange ; and therefore , there are special contracts in relation to it , different from the exchange of other things : so then , all these permutative contracts , are either of things for things , as are permutation , excambion , barter , &c. or of things for numbered money , and that is sale , or money for money , as by bill of exchange . secondly , profite , use , fruit , or work , may be either exchanged with things , and this hath no proper name , but is called in law , facio ut des ; or otherways may be exchanged for the like use , profite , or work , neither had this a proper name , but is called facio ut facias : but if the use and profite of things , deeds or industry of persons , be exchanged for money , or other fugibles , it is called location , and conduction . and lastly , if the contract be not to exchange totally things , use , or work for the like , but to communicate them together , where there is an exchange in part , there arises the contract of society ; in which , sometimes money or things , by the society are communicate , and the property constitute in the society without division ; or sometime the use of things , or money , are by the society communicat on the one part , and the substance of money on the other , so that the property of the ones money remains his own , and the profite becomes common ; or there may be communication of work with money , or work with work , though these be the most ordinar contracts among men , yet there be as many varieties as the conjunction or variety of these things , in the various use or humours of men can make up , as the contract of assurance : where money or things are given , for the hazard of any thing that is in danger , whether it be goods or persons . we shall only then touch the common requisites , first of all contracts , and next the specialities of the prime , unto which law or custome hath given a special nature , that by the very naming of the contract and agreement , therein all the obligations interests and consequences thence arising , are known commonly and presumed , and as effectual as if they were all exprest , without necessity , to dispute precisely , what reason and equity will conclude , from the nature of what is done or said . this seems to be the only profitable distinction betwixt contracts nominate and innominate ; for in all contracts , not only that which is exprest must be performed , but that which is necessarly consequent and implyed , but in nominate contracts , law hath determined these implications ; we shall therefore speak specially of the contracts of loan , commission , custody , pledge , excambion , sale , location and contracts , usurary and society . transaction may well be numbered amongst mutual onerous contracts , for thereby either party quiteth a part of what he claims , for shunning the hazard and expences of law , which being an useful mean to terminat pleas , the law of this and most nations observe the same unviolably , and will not admit the recalling thereof , upon any thing can be pretended from new discovery of the parties rights , as finding of writes or witnesse ; but if nothing be abated , there is no transaction ; and therefore , a bond for a sum , for which the party was under caption , being without any abatement , was found no transaction , july . . thomas rew contra houstoun . neither was payment made , pendente processu , without abatement found a transaction , january . . sir james ramsay contra robison . neither was transaction inferred by granting a bond for accompts , for which the granter of the bond was arrested , unless a lesser sum had been accepted , then what was claimed by the accompts ; here the instructinos of the accompts were not given up , nor a discharge thereof , but an obliegement to give a general discharge upon payment of the sum contained in the bond , february . . mr. andrew burnet contra john ewing . . for the common requisites and properties of contracts , first , they must be deeds of the rational appetitte or will , which , as we have said , can only constitute rights ; therefore the consent of infants can work nothing , because they have not the use of reason ; and though equity keepeth not one time for the attainment of reason , but takes it as soon as truely it is , which in some is much sooner , and in some much later ; yet positive law , following that which is most ordinary for stabilities sake , fixes it at the end of pupilarity , which in men is fourteen , and in women twelve years of age ; so neither infants , idiots , nor furious persons , except in their lucide intervals , can contract : this is to be cognosced by an inquest , upon a brief of the chancellary , called the brief of idiotry , which is mainly for appointing the nearest agnat to be tutor to such : and the deeds of idiots are not only void after this inquest , but after their idiotry , or furiosity , when ever it began , which therefore must be cognosced , yet it was sustained by reduction without a brief , at the furious persons instance , convalescing , february . . elizabeth alexander contra kinneir . and at the instance of the furious persons heir , for anulling an assignation , july . . james loch contra william dyke . but it was not found competent by exception , spots idiots , crawford contra kinneir . furiosity taketh away the escheat of these , as self-murtherers , being then furious , hope , horning , robert ripeth contra william wauchop . secondly , these also , who through fear or drunkenness , or disease , have not for the time , the use of reason , do not contract . thirdly , these who erre in the substantials of what is done , contract not ; we shall not here debate of the effect of extortion , error or circumvention , what influence they have upon contracts , but refer that to the former title . these who are deaf or dumb may contract , if they have the use of reason , if it appear they understood what was done , and exprest their consent , by their ordinary known signs . and last , positive law for utilities sake , hath disabled minors , having curators , to contract without their consent . like unto these are persons interdicted , of which before , this much for requisite in the persons contracting . secondly , in the act of contracting , it must be of purpose to obliege , either really or presumptively , and so must be serious , so that what is exprest in jest or scorn , makes no contract . thirdly , in the matter of contracts it is requisite , that it be of things in our power in their kind ; and so contracts of impossibilities are void ; and contracts in things unlawful are also void ; but though the particular thing be not in our power , and be not manifestly impossible , the contract is obligator ; and albeit it cannot obtain its effect , upon that thing it is effectual for the equivalent , as damnage and interest , contracts may interveen where there interceeds a natural and obediential obligation , where it hath this use to declare and express the natural obligation to avoid debate thereupon : but the proper matter of contracts , are things free , and the declaration or acknowledgement of necessar duties may be free , though the duty it self be necessar , yet where obediential and conventional obligations are concurring , they are both obligator . . it is the property of permutative contracts , that the purpose of the contracters is to keep an equality in the worth and value of the things , fruit or works interchanged , the value is regulate according to the common esteem and custome of men in every place , and its liquidat or known by money , or some fungible like unto money , as suggar and tobacco in the american islands , for money being the common token of exchange ; and therefore , having virtually in it all things , they are accounted better or worse , or equal , according to the common rate of the place , as they are worth in money for the time , the prime grounds of this common estimate are necessity , utility , and delectation , whether it be real or imaginary , as plin. lib. . cap. . margaritis pretium luxuria fecit , such is the value of portraits , tulips , or other flowers , upon which , in some places , a far greater rate hath been put , then any usefulness thereof would allow ; hence it is that the rate of things does frequently change , as the necessity or esteem of them changeth , and the more they abound , the easier is their rate . but the question is here , whether in these contracts there be a moral necessity to keep an exact equality , that whosoever , ex post facto , shall be found to have made an unequal bargain , the advantager ought to repair the loser : in this the romans did not notice every inequality , but that which was enorm , above the half of the just value , which our custome alloweth not , june . . robert farie contra james inglis . and the opinion of grotius , de jure belli , l. . cap. . is for the affirmative upon this ground , chiefly that the purpose of the contracters is to give one thing for an other of equal value , without purpose to gift on either hand ; yet the contrair opinion is more probable in some cases , wherein , though it be the purpose of the parties , to interchange things of equal value , without donation ; yet that equality hath no determinate or certain rule , but their own opinions : for as is said before , the special affection and opinion of the owner , is a peice of his interest and injoyment ; and if the thing be taken from him unwarrantably , and cannot be restored , the reparation is not according to the common rate , but secundum pretium affectionis , according to the value the owner had of it ; and if that owner sell it for the rate he thought it worth , it would be thought no less then cousenage , for the buyer to offer but what others thought it worth , if then the particular value or esteem be the first rule in such contracts , when both parties being free , do agree upon such a rate , there is here no donation , but a particular estimation , wherewith either ought to rest satisfied : it is true , where there is no rate agreed upon , the common rate must be the rule , but it cannot always be a rule , seing the publick rate doth but arise from the private rate , otherways rates should never change , except where by publick authority they are determinate , which is but seldome : but ordinarly the change of rates begins at particular persons , and the second contracters use for a patern the first ; and the fuller the example be , the stronger it is untill it become common ; and therefore , it is safest to conclude with the law , l. si voluntate , c. de resin . vend . which saith , this is the substance of buying and selling , that the buyer having a purpose to buy cheap , and the seller to sell dear , they come to this contract , and after many debates , the seller by little and little diminishing what he sought , and the buyer adding to what he offered , at last they agree to a certain price , or as seneca says , l. . de beneficiis , cap. . it is no matter what the rate be , seing it is agreed between the buyer and the seller , for he that buyes well , owes nothing to the seller ; therefore , the equality required in these contracts cannot be in any other rate then the parties agree on ; but in other things , this equality ought to be observed , as in any penalty adjected , or clauses irritant , which therefore ought to be , and are reduced to the just interest , what ever the parties agreement be : so then , seing promises and contracts are morally binding , permutative contracts must also be such , else they should not bind by vertue of the consent , but by reason of the matter ; but in them as in all others , if any party hath disadvantage by fraud or guile , it ought to be repared , but not by vertue of the contract , but from the obligation arising from that delinquence , and so unjust ballances are an abomination to the lord , because of the deceit thence arising : as also , false money , and insufficient ware , by any latent insufficiency or defect , which was not obvious and easily perceivable by the acquirer , in which case , there can be no presumption of fraud , his eye is his merchant ; but in others , according to the sentence of ambrose , in contracts , saith he , even the defects of the things which are sold , ought to be laid open , and unless the seller intimate the same , there is competent to the buyer an action of fraud ; so also , if the buyer take advantage of the ignorance and simplicity of the seller , and where there is no alteration of the common rate , nor ground thereof asketh or craveth more if it be not deceit , at least it is against charity : so is it when ware is keeped up till pinching necessity , which raiseth extream dearth , or when some special necessity of an acquirer , puts him so upon the mercy of the disponer , that he may take a price , even above that which himself accounts the thing worth , in such cases , there is the violation of the natural obligation of charity , whereby men are bound in some cases , to gift freely to the necessity of others ; but frequently we are oblieged to exchange what our necessity may spare , to supply others necessity for the like which they may spare , and so without injury , in case of necessity , men may be compelled to sell that which is their own . . this agreeth with our custome , by which only a latent insufficiency of the goods and ware , at the time of the sale and delivery , is sufficient to abate or take down of the price , but not unless when the unsufficiency appeared , the thing bought be offered to be restored ( if it be not carryed abroad before the insufficiency appear ) after which , retention is accompted an acquiescence in , and homologation of the contract : so no other then the latent insufficiency of wines , as being mixed with peary , &c. is relevant to liberate from a bond granted for the price thereof . but the insufficiency of a horse was not sustained to liberate from the price , he not being offered when that appeared , january . . brown contra mr. james nicolson . insufficiency of skins received upon trust , was found only probable by the oath of the seller , after the buyer had sold them again , july . . patton contra lockhart . . before we come to the special contracts , this question which is of much importance in practice , would be resolved , whether in mutual or reciprocal contracts , a party contracter , or his assignay , can obtain implement of the articles of the contract in his favour , till he fulfill or cause to be fulfilled the other part : our decisions have been exceeding various in this matter ; for clearing whereof , several cases must be distinguished ; first , in the case of the contracters themselves , and in that , either the mutual obliegements are conceived conditionally , that the one part being performed , or upon the performance thereof , the other part shall be performed , or where the obliegements are not conceived conditionally , yet they are properly mutual causes , each of other . the obliegement to deliver the ware , and to pay the price in permutation , the things exchanged , and mutual obliegements for delivery thereof , are the mutual causes each of other , in location , the use of that which is set for hire , and the hire are the mutual causes , and so are the obligations , hinc inde , otherways , the obliegements are not the proper causes each of other , but either wholly different matters , which are frequently accumulate in the same contracts ; or the one , but the occasion and motive , and not the proper cause of the other : the case of assignays must be considered in all these . for the first , the civil law is for the negative , that in reciprocal contracts , neither party can have effectual action , except he perform the whole contract on his part . as to the first member of the first case , there is no question , but when the mutual obliegements are conceived conditionally , he that demands the one part , must perform the other . as to the other member when the obliegments are mutual causes each of other expresly , when the contract bears , for the which causes ; or when by the nature of the thing ; appeareth so to be : it is most consonant to reason , to the civil law an our practice , that neither party should obtain implement of the obliegement to him , till he fulfil the obliegements by him , it was so found , july . 〈◊〉 laird of keirs contra mr. james marjoribanks leidingtoun . november 〈◊〉 . james crichtoun contra marion crichtoun . july . lord 〈◊〉 contra provost of lincluden , where the reason is rendered , because it is 〈◊〉 data & non sequuta , till he who craves implement fulfil his own part , 〈◊〉 though it be ordinarly understood , when the cause of the obligationaltogether faileth ; yet upon the same ground , so long as the cause is suspended , or delayed on the one part ; the effect is also to be delayed on the other . but in contracts , wherein the obliegements are not the proper causes each of other ; the one part hath effect before the other be fulfilled , and the same is only reserved or declared not to be prejudged by way of action or charge , sinclar , february . . laird of ker contra panter . december . earl of glencairn contra commendator of kilwinning . as to the second case , whether an assignay charging or pursuing upon a mutual contract , be in any better case then the cedent , or can crave implement , till the cedents part be performed , the difficulty is here , that if assiggnays be cloged with the obliegements of the cedent , it will marr commerce , and render such contracts ineffectual , as to summar execution , and so obliegements therein for liquid sums of money , might not be poinded or apprized for , nor any execution valid thereupon ; but this will not follow , for though these executions be summarly used , they will stand valide , only the effect will be suspended , till the other part be performed : but the assignay having no title whereby to compel his cedent to perform his part ; therefore the other contracter must either be decerned to assign his part of the contract to the assignay to the other part , that thereupon he may insist for performance ; and that before the extract of his decreet , or rather execution may be sisted , except as to adjudication for his security , till he procure implement of his cedents part ; or otherways , that he find caution , that the other contracter using diligence against his cedent for performance , that the assignay shall make up what shall be wanting to him , as was done in the case betwixt william cunningham contra john ross , wherein an assignay charging upon a contract for the price of lands ; by which contract his cedent was oblieged to cause the tennants pay certain bygone ferms ; therefore the assignay was ordained to find caution for satisfying of these ferms against the cedent , february . . william cunninghame contra john ross. hope , contracts , laird of rentoun contra robert dowglas . and though a donatar was found to have right to the price of lands , due by a contract , though the rebel had not performed his part of the contract , hope , cessio bonorum , balfour contra futhy , there was nothing alledged of the insolvency of the cedent : but a donatar pursuing for the price of fews , the fewers were assoilzied from the declarator , till the donatar obtained the fews to be perfected ; here it was known , the donatar was in trust for the rebel who was in power to perform , january . . lord lyon contra arthur forbes . but there can be no reason that the one part of the mutual cause should be effectual without the other , for if the cedents back-bond apart would affect the assignay , much more when it is in the same contract ; yea , though the matter proceed not by way of contract , but by bonds apart ; if thereby it appear , that these bonds are mutual causes one of another , the effect should be the same , and though there be no more to prove that they are mutual causes , but that they are of the same date , and before the same witnesses , the lords will readily examine the witnesses insert , ex officio , whether they be mutual causes each of other ; and therefore , where a bond apart did bear , that the creditor should ratifie a disposition of the same date , at his majority , under a great penalty . a bond granted apart to that party of that same date , being assigned , the assignay was found to have no power to lift the principal sum , till the cedent ratified at his majority , or were past his anni utiles , without reduction , november . . cunninghame contra cunninghame . the like was found , as to writes of the same date , with a contract anent the same matter , though not mentioned in the contract , hope , contract , duncrub contra chapman : but if in contracts or mutual bonds , the mutual obliegements have different terms of performance : a pursuit upon the one part will not be stoped by not performance of the other part , while the term agreed for the performance is not come , november . . sir david carmichael of basmedy contra dempster of pitliver . . to come now to particulars according to the order proposed , loan comprehendeth both the contracts in the law , called mutuum , and commodatum ; by the former , a thing fungible is freely given , for the like to be restored in the same kind and quantity , though not the same individual . a fungible is that which is estimate according to the quantity , and is not easily decernable , nor noticed in the individual or particular body , but only in the like quantity of the same kind , the chief of which is money , where ordinarly the extrinsick value and common rate is regarded , without respect to the matter , and so what is borrowed in gold may be payed in silver , according to the common rate of the place , unless it be otherways contracted : such also are wine , oil and grain , wherein the quantity is ever respected in the same kind , as in the loan of wines , payment must be had , not only by the wine of the same countrey , but if there be any difference by the wine of the same place of the countrey , and so of all the rest ; for it is never accompted a quantity , where there can be other differences remarked : these fungibles have no fruit or use , if they be retained ; and therefore , the end of the contract and purpose of the contracters is , that the property thereof shall pass to the borrower from the lender , and may be by him alienate ; and thence is its name , for mutuum est quasi de meo tuum , l. . ff . de rebus creditis : salmasius alone denyes this , holding that the intent of this contract , non est transferredominium , but to give the use , and that the alienation falls of accident , because law makes no difference of quantities of the same kind ; so that if money be found , restitution may be made without any contract , though not in the same money , but in the like , wherein there is no consent , and so can be no alienation . . yet the common opinion holds , that the purpose of the contracters is to alienate , because they know without it there can be no use : and if a fungible be not lent to that purpose , but only to be detained , as in some cases it may , as money to make a show with , to appear rich , or to make a simulate consignation ; there the borrower without injury , could not alienate , and he who findeth , unwarrantably alienateth his neighbours money , and may be compelled , not only to render the like in current money , but to render the same species and pieces of money . so he who hath the custody of money , if he medle with it he commits theft by the law ; hence it follows , that the whole peril of the thing lent , after delivery , is the borrowers , ejus est periculum eujus est dominium , so that money or any other fungible thing lent , though it were immediatly taken away by force , or destroyed by accident , the borrower is oblieged to pay . the transmission of the property of things lent mutuo , is so necessary , that without it , it cannot consist ; and if a paction or condition be adjected , though with interposition of a stipulation , that the thing lent shall not be alienable , it destroys the contract , and trans-changes it into commodatum . it is not here fit to repeat the general requisites of mutuum , common to other contracts , as that it must be done by an act of the will , with understanding , and so is impeded by errot in the substance of the contract , and cannot be effectual by infants , furious persons ; nor by the civil law could it be done by prodigals , which we notice not , unless they be interdicted : neither by minors having curators , without their consent . nor can they who have not the right of property lend , except by commission , because they cannot transmit more then they have ; mutuum may be constitute by such as can contract effectually , having all the former requifites of the lender . . and the civil law had this exception further , per senatus . consultum 〈◊〉 , prohibiting and annulling lending to sons in the family , which our custom owneth not , and looketh to sons at most , but under the priviledge of minors , if within age ; and if they contract , without their fathers consent , who is their lawful administrator , their deed is anullable , unless it be of small importance wherein they use to negotiat . our custome in stead of the senatus . consultum velleyanium , in favours of women , whereby they could not interpose as cautioners , or any ways be surety for others , hath indulged the favour to wives , that while they are married , they cannot effectually obliege themselves , otherways then in reference to their lands , of which formerly , title conjugal obligations . . because of the matter , things cannot fall under mutuum , which cannot be 〈◊〉 , and which are not properly fungibles ( as money , corn , wine , oyl ) and i doubt not , but oxen , kine , and sheep , are mutuable , as is ordinary in steelbow-goods ; which are delivered to the tennant with the land , for the like number and kind at his removal . . as to the specialities of mutuum , first , it is not contracted without delivery of the thing lent , and it hath very little , either by the civil law or our customes , as a nominat contract , but what is competent by the obligation of restitution , or recompence ; and therefore , promutuum per indebitum , where there is no contract , is equiparat to mutuum , for the like , not only in kind , but in value , must be repayed , though nothing be exprest therefore . as he who lent so much wine , is not oblieged to accept the same kind of wine , but also of the same value , as if he lent old wine , he is not oblieged to take new , which is accompted worse . l. . ff . de rebus creditis , and this is rather by that equivalence , due in recompence , then by any tacite paction , understood to be implied in this contract . and it were more convenient for commerce , that there should be understood a contrary paction , that being repayed in the same kind , there should be no debate of the equivalent value , which leaves a perpetual incertitude in all such contracts , raising ever a quarrel , that the repayment is not as good as the thing lent , as there is difference of the goodness of wines in the same countrey , yea , the same field ; likewise there is a difference in kinds of money , silver or gold , and in the intrinsick and the extrinsick value , wherein the common opinion is , that not only the extrinsick , but intrinsick value is to be respected , that the same weight and species of money must be repayed . but none make difference of gold or silver , not allayed ; and all reject copper or layed-money , our custome was to have repayment in the same intrinsick value , as appears , par. . cap. . par. . cap. . par. . cap. . but that was well altered by a posterior custome , allowing the current coin for the time , by the extrinsick value to be sufficient , in all redemptions , much more in personal contracts , which is most convenient , seing money is regarded as the token of exchange , and as a fungible , not as a body ; and it is not to be supposed , that if the lender had keeped his money from the present borrower , that he would have lost the profite of it , to keep it up till the extrinsick value might change to his advantage ; or that the borrower was to keep it by him , but to make present use of it ; for which cause we notice not the intrinsick value , even as it was at the term of payment . . the civil law gives so little to mutuum , by the nature of the contract , that it is amongst the contracts stricti juris , where nothing is understood but what is expressed , or necessarly consequent therefrom . and therefore , there is no annual or profite , due in mutuo ; yea , though it be expressed by paction , it will not suffice by the civil law , unless it be by stipulation ; we allow not profite , in mutuo , unless it be so agreed upon , which may be by paction , even ex intervallo ; in which case it retains the name of mutuum , though it be rather locatione of the use of the fungible , for the annual , as a competent hire , and so we shall speak to annualrents , not here , but in location ; yet the law did allow to mutuum , that any thing might be transchanged in a fungible , as the price thereof , and that fungible constitute , in mutuum , which is equivalent , as if the fungible had been really delivered , l. . ff . de rebus creditis . and any contract is easily changed , in mutuum per fictionem braevis manus , as if all these alterations had been actually made . but if it were but acknowledged , per chyrographum , that money was delivered , the exception , de non numerata pecunia , was competent . with us the transmission from any other cause is sufficient , and the acknowledgement of the receipt of money proves , unless the contrair be proven by write or oath . the ordinary way of mutuum amongst merchants , is by bills of exchange , or letters of credite , which have several specialities , which arise from the nature of these acts , and from custome , especially these common customes of merchants , observed in cities of greatest trade , in the neighbouring nations . the nature and ordinary tenor of these bills of exchange is , that the drawer of the bill orders such a merchant , or his correspondent , to pay the sum contained in the bill upon sight , or at such certain time , or at useance , and that for value received , wherein there is implied a mandat to the correspondent , and an obliegement upon the drawer of the bill , to make that mandat effectual , wherein mutuum is implied , if the value received by him be numerate money , or of any other cause , such as delivery of ware ; there is in it , fictio braevis manus , as if the ware were sold to the drawer of the bill , and the sum in the bill were the price received , and delivered again in loan ; there useth two or three bills to be drawn for the same sum , which do bear , to be the first , second , and third bill , and the payment of any one satisfies all : the fixed form by custome , of making use of these bills , is by presenting them to him upon whom they are drawn , and if he accept the bill , he writes thereupon , accepts , which if it be simplie , he becomes liable in the terms , and at the time mentioned in the bill : but sometimes the accepter doth qualifie his acceptance , which the creditor by the bill may refuse ; and require either simple acceptance , or may protest for non-acceptance ; but if he suffer the acceptance to be qualified , it imports his consent , and he cannot protest for non-acceptance , as if the acceptance be to a longer day , then what is contained in the bill : or if it bear acceptance , if provisions come betwixt and the day ; or if ware or bills in hand do raise the sum . at or after the day , the bill is again presented , and if payment be not then made , the creditor in the bill protests for not payment , and both these protestations must be by instrument of a nottar , either for non-acceptance , or not payment : which instruments with the bill , make sufficient probation , both against the drawer of the bill , and against him upon whom it was drawn ; and neither witnesses , nor the oath of party will be sufficient to supplie the protest : so that the instrument or protest , is not only a proof , but a solemnity requisite . these protests may be taken against him upon whom they were drawn , either personally , or at his dwelling-house , which was sustained , though before presenting of the bill , the party upon whom it was drawn was dead , july . . hugh kennedy contra george hutcheson . upon bills so protested , the creditor in the bill hath action , both against him upon whom the bill was drawn , if through his fault , he hath either refused to accept , or to pay , and so if he had provisions in his hand , he will be decerned to pay ; and if without provisions , he accept and pay , the drawer of the bill becomes his debitor , ex mutuo , or ex mandato . the creditor in the bill may also return upon the drawer of the bill , who will be decerned to pay the sum , with the damnage the creditor hath sustained through its being protested , wherein will be comprehended the expenses of the pursuit against the correspondent , and the profite the creditor in the bill might have made , if according to it , he had received his money , which will differ in several persons and cases ; as if the creditor in the bill be not a merchant ; the ordinary damnage will be the exchange , that is the rate ordinarly given at that time , for answering money from the place , at which the bill was drawn , to the place to which it was direct ; but if the creditor in the bill was a merchant , and was to trade with the sum in the place , to which the bill was direct , he hath also no more but exchange ; but if he was to trade in any other place , before he returned to the place where the bill was drawn , he will not only get exchange , but re-exchange , as being damnified in the profite of his ware that he was to buy , at the place to which he was bound , from that place to which the bill was direct , for the ware he was to buy there , and for the loss of his profite of the ware he was to buy at the second prot : but though there might be further progress in his traffick , his damnage is no further extended , then to exchange and re-exchange ; and in all , the oath of the creditor in the bill , concerning his design with the bill , must be sufficient probation , and is taxable . as all oaths in litem are , when they appear exorbitant , if the bill of exchange be unsatisfied by an interveening accident , which the drawer could not prevent , the damnage will be modified or taken off ; as in the former case , the correspondent upon whom the bill was drawn , dying before the day of payment , the creditor in the bill having protested at his dwelling-house , and not insisting against his successors , but returning against the drawer , he got no exchange or re-exchange ; yet certainly , the drawer of the bill being hereby oblieged to deliver the money , at the place to which the bill was directed , it had been no stretch to give him exchange . but if the correspondent upon whom the bill is drawn , break , or become insolvent , full damange will be due by the drawer , whose part it was to have his money in secure hands , unless the correspondents insolvency , be by the delay , or fault of the creditor in the bill ; for though there be no determinate time at which he is oblieged to present it , yet conveniency and ordinary diligence is implyed ; but if the delay sall by an accident , though the correspondent break before the bill be presented , or payed , the drawer of the bill will be lyable for the value received , but for no damnage , july . . doctor wallace contra simson . these bills of exchange are probative , though they neither have witnesses , nor be holograph , by the custome of merchants , because of the exuberant trust among them , and because they do not ly over as other securities , but come quickly to be questioned , if they be not satisfied . yea , a bill of exchange by a drover , neither having subscription of his name , nor initial letters thereof , but a mark , at which the writer of the bill wrote , this is the mark of the drawer of the bill , the writer and several witnesses being examined , ex officio , and deponing , that it was the drovers custome to mark bills thus , which he readily payed , though of greater sums then this , which was an hundred pound sterling , and one witness deponing that he saw him set to the mark to this bill , the bill was sustained . bills of exchange are also transmitted without any formal assignation , or intimation , by a note upon the bill it self , ordering it to be payed to such another . bills or precepts , not being amongst merchants , or in re mercatoria , import only warrandice upon the drawer , and give action against the person upon whom they are drawn , but neither require the solemnities , nor have the priviledge or effects of bills of exchange , but have only the effect of assignations from the drawer upon him upon whom they are drawn . letters of credit among merchants , are equiparate to bills of exchange in some cases , but in others they are but cautionary for other merchants , in whose favours they are granted ; and therefore , a merchants letters of credite , to honour another merchants bills , was only found effectual , as to such bills as were accepted and payed ; and whereof repayment was not made , and advertisement given to the writer of the letters , of the particular bills not payed in due time , before the other merchant became insolvent , january . . john ewing merchant in london , contra mr. andrew burnet . this is also singular , in mutuo , by the law , that though thereby contracts cannot be made , per tertium ; yet delivery by the lenders debitor to the borrower , is holden sufficient , l. . ff . de rebus cred. . the other kind of loan is called commodatum quasi commodo datum , and it is a contract whereby the use of any thing is freely given to be restored , the same without deterioration , if it be not freely lent , but for a hire , it is location ; if the like be restored , it is mutuum ; but if it be lost thorow the commodatars fault , or otherways deteriorat , the value must be restored , either as it was estimate by the parties before hand , which changeth not its nature , because the price , though estimate , cannot be offered but in case of loss , or deterioration , sine dole , if there be no estimation , then the estimation is to be according to the rate of the thing lent , at the time and place appointed in the contract , or as it was worth the time of the sentence : but restitution must be made without deterioration , except such as necessarily follows the use for which it was lent : as cloathes lent may be worn , and cattel lent become older ; or if a horse be lent for a long journey , and therefore become leaner , without the borrowers fault , he is not oblieged to make up the same , l. fin . ff . commodati ; but all other deteriorations must be made up , it must be lent for use , that it may differ from depositation , that admits of no use , but custody . this contract may be celebrate amongst all that have the common requisites of contracting ; yea , if the lender have the possession , he may lend , though he have no property ; and servitudes and habitation may be lent : and though the lender have neither right nor possession lawful , the law saith , l. si servus ff . commodati , that this contract hath effect , which is only to be understood that the action , commodati , is competent , but not as to all effects ; for the borrower cannot effectually detain the thing lent to his day , or any fruit thereof , seing the lender had no title . all things may be lent that can have an use without consumption of their substance , and so fungibles cannot be accommodat , unless they be given , ad pompam , as money lent , to seem rich , or to make a simulate offer or consignation . . as to the diligence due by the borrower , the case must be distinguished ; for some things may be accommodate only for the behove of the lender , as he who lends cloathes , or instruments to his servants for his own use and honour ; sometimes to both the lender and borrowers use , and of test to the borrowers use alone ; in all cases , the borrower is holden , de dolo : yea , no paction can be valid in the contrary , as against good manners ; in no case is the borrower oblieged for any accident , as death , naufrage , burning , unless he hath undertaken that hazard , either expresly or tacitely , in commodato estimato , which imports that if the thing perish , it is lost to the borrower , and he must pay the price , l. . § . . ff commodati : for as in dote estimata , so in commodato estimato , it is in the debitors option , whether to restore the thing it self intire , or the price to which it is estimate ; but if the estimation be only in the case of the deterioration , or loss , it doth no more but save questions as to the value , and is not commodatum estimatum , as was found , november . . betwixt the town of arbroth and montrose : or that the borrower hath applyed the loan to another use , then it was lent for ; in which case it perisheth to him ; yea , he committeth theft in that misapplication , l. . ff . commodati : but in the first case , the borrower is only holden for the grossest faults and negligence ; in the second , for ordinar faults , culpa levi ; in the last for the lightest fault , and is oblieged for such diligence , as the most prudent use in their affairs , l. . ff . commodati . . precarium is a kind of commodatum , differing in this , that commodatum hath a determinat time , either expresly when the use of a thing is given to such a day , or such an use , which importeth a time , as lending a book to copy , must infer so much time as may do it , lending a horse to ride a journey , must import a competent time . but precarium is expresly lent , to be recalled at the lenders pleasure , and if nothing be exprest , it is presumed in law , commodatum , during the use granted , unless there be no special use exprest , and then it is esteemed precarium , because there can be no time consequent upon general use . . commodatum is ended by the ending of the special use , for which it is granted , or the time prefixed , or by revocation if it be precarius , or by the perishing of the matter lent , but precarium is not finished by the death of the lender , till his heir recall it : but it is finished by the death of the borrower , unless it be otherwise agreed . . from commodatum arise two actions , the direct , whereby the lender may call for the thing lent ; and the contrary , whereby the borrower may call for his expenses , wared out necessarly , or profitably on the thing lent , more then is necessary to preserve it in the case it was lent , which he may use by way of exception , to have retention till these be satisfied . . commission is called in law , mandatum , either because it useth to be exprest by way of command , or precept , though this be special in a precept , that most mandats are free , and may be refused ; but precepts may not , when the party upon whom they are drawn , hath provision from the drawer : or otherwise , it is called mandatum quasi de manu datum , because it is given out of the hand , or the management of the mandant , into the trust of the mandatar . the requisites of this contract , must be , first , a desire , warrand , or order , upon the part of the mandant to the mandatar , to do some affair , to the behove of the mandant only , or of the mandant and mandatar , as to mannage that which they have in common , or to the behove of a third party only , or of a third party and the mandatar , or of the three jointly ; for if to the behove of the mandatar only , it inferreth no obligation , but either is a meer counsel , in whatsoever terms it be exprest ; as if maevius desire or command titius , not to imploy his money upon annualrent , but to buy land therewith , or particularly to buy such land , there ariseth thence no obligation : it is true in crimes , such desires may infer punishment ; but no obligation in favours of the party desired : or when a commission is granted only to the behove of the receiver , it transmitteth a right to him , and no obligation upon him . so personal rights are transmitted by assignations , which are procuratories , but to the procurators own behove ; such are also precepts for taking seasiue or possession . . as to the terms in which mandats or commissions are expressed , if it be any way to the behove of the mandant , there is no difference what the expression be , unless the words be , mendicatorie , importing the desire of a donation ; but if it be only to the behove of the mandatar , or of a third party , or both , without any behove of the mandant , then it must be considered , whether the words import only a counsel , that the mandatar do such a thing upon his own accompt ; in which case there is no contract , nor obligation , unless it appear that it was upon the mandants accompt , or a third parties . . the second requisite is the consent or acceptance of the mandatar , which compleateth this contract , which is perfected by sole consent , and may be either by word or deed , from whence the warrand of the mandant , and acceptance of the mandatar may be inferred , or by any other sign , as by pointing with the hand , or beckning with the head : and albeit it was free to accept or consent , yet it is obligatory and necessary to perform , unless re integra , the mandatar renounce , so that the mandator be not hindered in obtaining thereafter another mandatar . . the third requisite in a mandat is , that it be in relation to a thing lawful to be done , for it cannot reach to what is already done ; and being in a matter unlawful , albeit it be accepted , it oblieges not the accepter to perform ; and if it be performed , it oblieges not the mandant to make up the mandatars damnage : but in this as in other things unlawful , albeit both parties be in the fault , potior est conditio possidentis , he who is actually free of the loss , hath the advantage . . the last requisite in mandats , is that the acceptance must be free , not only in so far as the mandatar may freely accept or refuse , whereby a proper and voluntary mandat differs from a necessary command or precept , which is no proper mandat , because it is not inferred by consent , but also in so far as acceptance must be gratuitous ; otherwise the contract thence arising , is not mandat , but location : yet honoraries , or sallaries , for performing of things , having no proper price nor estimation , alter not the nature of this contract , as the sallaries or honoraries of physicians for procuring of health , which hath no price ; or of judges or advocates , for giving or procuring of justice . . it is implyed in the nature of mandats , that it is personal , depending upon the singular choice of the mandant , which he hath made of the mandatars person ; and therefore it is neither continued in the heir of the mandant , or of the mandatar ; but morte mandatoris perimitur mandatum , which holdeth also upon the death of the mandatar ; for this contract arising from a singular affection or friendship betwixt both , the removal of either resolves that tye : so that in delegation , which is a mandat by the creditor to his debitor , to pay the debt to the creditor of his creditor , it was found to cease by the death of the creditor mandant ; and that a letter written by him to his debitor to pay his creditor , was no warrand to pay , after the debitor knew that his creditor the mandator was dead , february . . executors of the laird of duffus contra forrester : but here there is an exception , fi res non sit integra , if the matter of the mandat be not intire , but that the mandatar hath entered upon , and performed a part of his commission ; for in that case it continueth after the death of either party ; it hath also the exception , bonae fidei , if the mandatar perform the mandat , though after the mandators death , if he knew not that he was dead , albeit the matter was intire at the time of his death . in general or complex mandats , the performance of a part doth not continue all the several members of different natures of the mandat , but only that particular whereof a part is done . . here there ariseth a question , whether a mandatar may intrust another person , or sub-commit his mandat , wherein the civil law , and most of the doctors are in the affirmative : but the nature of the contract inferreth the contrary , which ought to take place , unless law or custome were opposite , which is not with us . the reasons for the negative are pregnant ; first , because the singular and personal fitness of the mandatar is chosen by the mandator , and so cannot without his consent be altered . secondly , it is a common ground , that which belongeth not to heirs , much less to assignays or substitutes . thirdly , it is a common brockard , delegatus non potest delegare , especially in the matters of jurisdiction , which the doctors acknowledge , but say that it is introduced by the law , against the nature of this contract : but they should rather say , that the power of sub-committing in extrajudicials , is so introduced . it is true , the reasons foresaid fail in some cases , as if the mandat be of a nature so common , that there is no distinction of the fitness of persons ; as precepts of seasine , which are therefore directed blank , that any persons name indifferently may be filled up : or if the mandat be so general , that it cannot be all performed by one . . it is also consequent from the nature of this contract , that it is ambulatory , and revockable at the pleasure of the mandator , even though it bear a definit term ; because that being introduced in favours of the mandator , it cannot hinder him , cuique licet juri pro se introducto renunciare , which holdeth not , when the mandat is partly to the mandators own behove ; for then the interest not being wholly the mandatars , he cannot alter the time agreed upon without consent of the mandatar : yea , if the mandat be wholly to the behove of the mandatar , it may , and frequently is irrevockable , and containeth a clause , de rato , as is ordinary in assignations , and procuratories of resignation , and precepts of seasine , bearing them to be an irrevockable power and warrand . . the obligation arising from mandat , is chiefly upon the part of the mandatar , to perform his undertaking , wherein he is oblieged to follow the tenor of his commission , in forma specifica , in so far as it is special and express , wherein if he transgresse , some of the ancient lawers denyed him repetition of his expences , not only as to the excrescence above his commission , but for all , as having received commission to buy such a field , for one thousand crowns , he had bought it for one thousand two hundred , he should have repetition of nothing : but proculus thought that he should have action for the part in the commission ; which , as the more benign opinion , justinian followeth , l. sed proculus , . ff . mandati , where the mandat is not special , it must be performed , secundum arbitrium boni viri . . as to the diligence whereunto mandatars are oblieged , the doctors are of divers opinions ; the law inclineth most , that mandatars are oblieged for the exactest diligence , and for the lightest fault : but by the nature of the contract , mandatars , seing their undertakings are gratuitous , they ought to be but lyable for such diligence as they use in their own affairs ; and the mandatar ought to impute it to himself , that he made not choice of a more diligent person , which our custome followeth , nicol. mandats , david crawford contra katharine alexander . and a commission to receive money abroad , was found to infer no diligence , earl of weims contra sr. william thomson . the like of a commission to a buyer , to infeft the seller and himself , and to do all other things necessary for his security , december . . sir alexander frazer contra alexander keith . the obligation upon the part of the mandator , is to refound to the mandatar his damnage and expense , and to keep him harmles ; but this extends not unto casual damnages , as if the mandatar were spoiled in the way , or suffered shipwrack in going about the execution of the mandat , l. . inter causas , § . . non omnia , ff . mandati , but this is to be limited , unless the mandat do specially require concomitant hazard , as if a mandatar be sent through a place where there are forces of enemies , robbers , or pyrats , commonly known to haunt the place , by which he must pass . . to come unto the special kinds of mandats , they are either express , or tacit , to one mandatar , or more , generall , or special , to be performed in the name of the mandatar , for the mandators behove , or in the name of the mandator : as also , amongst mandats are comprehended the commissions of institors , and exercitors , and all precepts , procuratories , assignations , and delegations . . a tacit mandat , is that which is inferred by signs , and is not exprest by words , as he who is present and suffereth another to mannage his affairs without contradiction , gives thereby a tacit mandat , l. qui patitur , . l. qui fide alterius , . ff . mandati ; for in this , qui tacet consentire videtur . so he who whispereth his servant in the ear , if he immediatly kill or wound any person present , is presumed to give command to the servant so to do ; if there was capital enimity betwixt him and that person before . in like manner , the giving of evidents or writes ; yea , which is more , the having of these , though the giving appear not , it is presumed to constitute procurators , as is evident in the having a precept of seasine , which is sufficient without any other power given to the bailzie , or acturnay . and advocats are presumed to have warrands from parties for whom they compear , without producing any mandat ; not only upon production of the parties evidents , or alledgeances , special in points of fact ; which if wanting , the compearance of procurators in inferiour courts , is held as without warrand , and the decreet as in absence ; but even without these , if advocats do no more but appear , and take a day to produce parties to give their oathes . a wife having her husbands band in her hand , impignorating it for an hundred pounds , the impignoration was found valide against the husband , the wifes warrand being presumed by her having the bond , february . . paterson contra pringle . and the warrand of a servants taking off furniture for his master , and giving receipt in name of his master , and for his use , found not to obliege the servant to pay , or instruct his warrand , which was presumed to be known to the merchant , unless the servant had otherways imployed the furnishing , november . . howison contra cockburn . and a warrand was inferred , by the presence of him who had commission to do , and hindred not , february . . lord rentoun contra lambertoun . and a warrand of a factor or agent , for charging and denuncing a daughter , and her husband upon a bond granted to her mother , was presumed from having the bond , december . . thomas dalmahoy contra lord almond . . mandats given to more persons , may be either to each , or some of them severally , by divers warrands , or to more by the same warrand , whereupon these questions arise ; first , when there are many mandatars joyntly , whether they must all necessarly joyn before they can act , so that if one should die , the commission is void ? or whether it be understood to the survivers , or to the plurality of them ? secondly , whether mandatars be all lyable , in solidum , or but prorata . as to the first question , if many mandatars be constitute severally , or with a quorum , or plurality exprest , there is no debate ; but if otherwise , the case is very doubtful , and there be pregnant reasons and testimonies upon both parts , but this seemeth to prevail as the general rule , that mandats joyntly given , can only be joyntly execute ; first , because by the nature of this contract , the personal and singular fitness and industry of mandatars is chosen ; and therefore , this being a special trust , when it is given to many , it is presumed , that the constituent trusts them all joyntly , and not a part of them . secondly , a mandat given to ten , cannot be regularly understood , given to any lesser number , or given to titius , seius , and maevius , that it is given to any two of them : it may be objected , that where there are many executors or tutors , without mentioning a quorum , the death of one makes it not to cease , hope , executors , stuart contra kirkwood and moor : or the death or non-acceptance of some of them , ibid. ruthven 〈…〉 contra george fauside contra edmonstuon ; and therefore , this being the most important trust , the like must hold in all other cases . it is answered , that the parity holds not ; for the deeds of defuncts in their latter will are always extended , that the act may stand : but in contracts it is contrary , that words are interpret more strictly ; and in this case the difference is clear , that a mandator , inter vivos , giving power , it is strictly to be interpret ; because the power failing , returns from the mandatars to the mandator himself : but a power given by a defunct in contemplation of death , cannot return ; and therefore the defunct is presumed to prefer all the persons nominate , to any other that may fall by course of law. but this rule , as it is founded upon the singularity of the choice , it faileth , and must be limited , where that ground ceaseth , and is preponderat : as first , if the deed to be done , be common and ordinary ; there , not only the plurality , but any of the mandatars will suffice ; so any of more curators may authorize a minor. secondly , if the thing to be done , be to the advantage of the constituent , and hath not a considerable hazard or power to infer his disadvantage ; as if a commission being begun to many , of things which admit no delay , it may be done by any part of the mandatars , and they will have actionem mandati , and not only negotiorum gestorum . so ambastadours sent to solemnize a marriage , or receive a crown , though some of them should die , or disassent , unquestionably the plurality might proceed . but it wold not be so in a treaty for marriage or peace ; much less for surrendering a kingdom , city , or fort ; and therefore , it cannot always be thought that a plurality is understood , though not exprest . thirdly , in cases necessary , where matters may not be delayed , plurality is always understood , as in commissions for jurisdictions ordinary . fourthly , where the consuetude of the place , or of the mandator himself , useth to allow a plurality , there it is understood , though not exprest . . as to the other question , where more mandatars are constitute severally , they are no doubt lyable , in solidum , because they are constitute , in solidum : but when they are constitute jointly , or added , the doubt remaineth ; for the affirmative , there is first , the authority of the civil law , l. creditor mandatorem , § . duobus , ff . mandati . . secondly , albeit the obligation of many , for payment of a quantity , make them lyable but prorata ; yet where it is a fact , they are lyable , in solidum . and so tutors and curators are lyable severally , in solidum : but executors are not , because their duty is to pay , secundum vires lnventarij ; and therefore , in rigore juris , mandatars being malversant , or grosly negligent , are liable , in solidum , if they may act severally , especially in acts indivisible . . general mandats do occasion the most debates in this contract ; for there is much more clearness where the mandat is special , which useth to be distinguished in determinate , when both matter and manner are special , and indeterminat , when the matter is special , but the manner is not specified ; in the former the precise tenor of the commission must be followed ; and yet if any part thereof be , or become unprofitable , and evidently and considerably hurtful , the mandatar in the latter case may safely , and in the former case , must necessarly do what is best , secundum arbitrium boni viri , and must do the like in all indeterminat mandats : but the great question is , how far general mandats may be extended , and in what cases they are not effectual : but there is necessarly required special mandats , which refer to the pleasure , choice , or opinion of the mandatar , as if it have a clause , cum libera aut plena administratione , or the like : or where that is wanting , the doctors enumerate multitudes of cases , whereunto general mandats are not to be extended ; first , in the contracting of marriage no general mandat , albeit , cum libera & . is sufficient , because the affection and choice of the person is singular , and incommunicable . and albeit abrahams commission for eleazar , to take a wife for his son of his kindred , was valide , though not special , as to the person ; yet the case was singular , there being so few families that worshipped the true god , to choice upon . but recenter customes require it to be special , even as to the person , as well as to the family . secondly , no general mandat , though cum libera , can be extended to any thing that may import a fault or crime . thirdly , no general mandat can reach to donations , or meer liberality , and yet doth not hinder gratifications for services done , or upon the expectation that the receiver may probably be induced thereby , to do matters of importance , as the gifts of ambassadours , or generals , are not only valide as to the receivers , but as to the mandators , if there was probable reason . fourthly , general mandats extend not to alienation of immoveables , but that must be specially exprest . fifthly , general mandats extend not to submissions or transactions , nor to insist in any action criminal or famous , or to anull that which is specially done by the constituent , or to dispose of that which was specially reserved before , either by law or deed , as regalia , or things peculiarly reserved to princes . sixthly , a special mandat is required , to enter any party heir to any predecessour . the civil law numbered , additionem haereditatis inter actus legitimos , and so excluded even a special mandat therein : but our customes allow the same . but because heirs are lyable , in solidum , to all the predecessors debts ; therefore a special mandat is necessary . seventhly , wherein the general mandats , some things are specially exprest , the generality is not extended to cases of greater importance , then these exprest . . amongst mandats are all offices , which do ever imply a condition resolutive upon committing faults ; but not such as are light faults , or of negligence ; but they must be atrocious , at least of knowledge and importance ; upon this ground it was , that the town of edinburgh having deposed their town clerk from his office which he had , ad vitam , the sentence was sustained , if the fault were found of the clerks knowledge , and of importance , and that it was not enough that no hurt followed , and that he was willing to make it up , february . . town of edinburgh contra sir william thomson . but an office of a sheriff clerk , was not found extinct by his being at the horn for a debt , or being sometimes out of the countrey , having power of deputation , february . . arch-bishop of glasgow contra commissar clerk of dumsreis . the office of a commissar doth also import , as a necessary condition , that the commissar be qualified to discharge the office in his own person , though he have deputs , seing he must answer for , and over-rule his deputs , february . . arch. bishop of glasgow contra commissar of glasgow . where it was also found , that by the commissars instructions , they must reside in the place of the commissariot , under the pain of deprivation , notwithstanding the common custome in the contrary , which only excuseth from bygone faults . . trust is also amongst mandats or commissions , though it may be referred to depositation , seing the right is in custody of the person intrusted . mandatars in the law could not obliege the mandator , or directly acquire to him ; but they could only obliege themselves , and acquire to themselves , and thereafter transmit to the mandators ; and that because in most contracts , thereby the person contracter behoved immediatly to act , and no person interposed , which our customes regardeth not ; and therefore mandatars may act in their own names : in which case , the right , whether real or personal , standeth in their person , as he who by commission acquireth lands , or goods , in his own name , the real right thereof is in his person , and there lies an obligation upon him , if he was commissionat to transmit them to his constituent ; but he may also acquire , transact , or contract in name of the constituent : in which case , the real rights stands immediatly in the person of the mandator , and the obligation constitutes him creditor : and there is no obligation betwixt the mandatar and the third party . nor is the mandatar oblieged to instruct that he had commission , but that is upon his hazard who acted with him , unless the contrary be proven by his oath or write ; and therefore a servant , though by a ticket , he acknowledged he had taken off such furniture for his masters use , was not found oblieged to pay or to instruct his warrand , especially after his masters death ; but the warrand was presumed as known to the merchand , november . . howison contra cockburn . trust in the right of lands , sums , or goods , to the behove of another , doth frequently occur ; and because fraud is ordinarly in it , it is not only probable by write or oath of the trustié , but witnesses are examined , ex officio , to find out the truth , february . . viscount of kingstoun conira collonel fullertoun . february . . rule contra rule . february . . earl of annandale contra young. june . . scot contra langtoun . and trust was found probable by presumptions only , january . . executors of william stevinson contra james crawford . january . . janet watson contra mr. 〈◊〉 bruce . but it was not found proven by a declaration upon death-bed , in prejudice of the heir , november . . william 〈◊〉 contra stirling of airdoch . but a person intrusted in a disposition of lands , having componed for the intrusters debts , was found to have no interest to burden the intruster , with more then what he truely payed out , november . . james maxwel contra adam maxwel . neither was a person intrusted for payment of the intrusters creditors , found to have power to prefer them to the more timeous diligence of others , by inhibition , or apprizing , though only done against the intruster , july . . crawford contra anderson . and a person receiving money to buy goods for another , but having bought and received them in his own name , without mention of the truster , the property thereof was found to be in the person intrusted , and his creditors arresting , were preferred , january . 〈◊〉 . 〈◊〉 contra robertson and fleming . yet trust in sums , or personal rights , after the death of the person intrusted , was found not necessary to be confirmed , as in bonis 〈◊〉 , of the intrusted person ; but that the trust might be proven against the debitor , and the nearest of kin of the person intrusted , june . . william streit contra home of bruntfield . but trust in an infeftment of annualrent , found not to make the person intrusted lyable for omission , but only for intromission , december . . charles cass contra mr. john wat. the like in an assignation in trust , which was not found to infer an obliegment to do diligence , if the assignay was not required , either to do diligence , or denude : but he having transferred without warrand , was found lyable for the sum , albeit he offered to procure a reposition , july . . janet watson contra mr. walter bruce . and an assignay in trust , that the sum might be included in his appryzing , giving back-bond to be comptable in case of payment , having disponed the appryzing without reservation , was found lyable for so much of the sum intrusted , as might have been recovered , january . . earl of northesk contra laird of pitarro . trust was inferred by a grand-fathers delivering of a disposition , conceived in favours of his grand-child , the disponer at the delivery , having not exprest the terms of the trust , or his design , and having recalled and received back the disposition , and disponed the half of the lands therein , to another ; it was thence found , that the disposition was not absolute , and irrevockable , but was intrusted to that third party , to be recalled if the disponer pleased ; or otherways to be delivered to the oye , january . . janet ker contra niman ker. when trust is referred to parties oath , whether such a right standing in their person , be in trust to the behove of another , they use commonly to depone , that it is to their own behove , which being found dubious and fallacious , what the meaning of such words were , special interrogators are allowed to expiscat the truth : and parties use to reexamined thereupon , as whether the deponents meaning by these words , that the right was to his own behove , and not to anothers , was only that he gave no promise or back-bond , to apply the right or benefite thereof , in whole or in part to another : or whether the true meaning of the design was , that the other put him upon acquiring that right , being a gift of non-entry of lands , bought by that other , so that the whole benefite should not be applyed to the acquirer himself ; for it was not presumable , that he would put another upon taking gift of non-entry of the lands himself had bought , to be made use of to the full extent , which being so acknowledged , the gift was found so far to the behove of the buyer , that the seller by the warrandice , should pay no more for the non-entry , then the acquirer of the non-entry gave truly for it , seing the buyer had communed with the superior , and brought the non-entry to the same rate , and then put his couzin-german to acquire it , february . . master of balmerino contra laird of pourie . upon the same ground a donatar of a liferent escheat being examined , whether it was to the behove of his good-brother , having deponed , that it was to his own behove , he dying before he was re-examined , his oath was interpret only , that he had given no back-bond or promise in favours of his good-brother ; and therefore pregnant presumptions of the trust were inferred , in that the brother only was concerned in that liferent , that he managed , and was at all the expenses of the process , that the donatars successors never owned , nor confirmed the benefite of the gift , february . . forbes of balvenie contra laird of boyn . . the law for utility of commerce , did against the common rules foresaid , constitute an obligation upon exercitors , by the deed or contract of the masters of the ships . an exercitor is he to whom the profite of vessels or ships , whether upon the sea , rivers or lakes belongeth , whether he be owner of the ship , or have only hired the same ; the master of the ship is he that hath the command thereof , who therefore may contract and borrow money for reparation of the ship , or out-rigging thereof ; or for the intertainment of the mariners , or any other thing for the use of the voyage . and thereby not only the master contracter , but the exercitor who constitute him is lyable : yea , if the master substitute another master , his ingagement also obliegeth the exercitor ; so that whosoever he be that contracts with him , who for the time officiats as master , obliegeth the exercitor , in what was borrowed for the use of the ship , company , or voyage . and there seems no necessity of showing a commission , but the exercing of the office is sufficient ; and thereby the ship and out-rigging may be hypothecat and affected : yea , if there be many exercitors , they are all lyable , in solidum ; and if there be many masters , the contract of one of them obliegeth the exercitors , unless it be expresly provided , they cannot contract but jointly , which must appear by their commission : neither needs he who contracts with the master , instruct that the money borrowed , was actually imployed for the use of the ship , company , or voyage , but this much he must make appear , that when he lent the money there was such need of it , albeit he be not oblieged to take notice whether the master misimployed it or not , because the exercitor should have looked whom he trusted . if the master be constitute with power to buy ware , and load the ship , the prepositor is lyable to these who contract with him , upon that accompt ; but this is not presumed upon acting as master , unless his commission appear , and the masters other contracts obleige not the exercitors , albeit their fault do , by the edict , nautae caupones stabularij , all which is clear from the title ff . de exercitoria actione per totum , and is generally in vigour . . after the similitude of the exercitory action , the pretor by the perpetual edict , did introduce the institory action , where by the contracts of institors in relation to that wherein they were intrusted , their prepositors are oblieged , as exercitors are as to maritime maters ; so prepositors are correspondent in trafficque at land. and institors are these who are intrusted in such affairs , corresponding to the masters of ships ; such institorsare these who are intrusted with keeping of shops , buying or selling of ware keeping of cash for exchange , such as are sent abroad to buy ware. and these who are intrusted with the labourage of any field , or any other like business . and it is alike of whatsoever sex or age they be , though even they be pupils who cannot obliege themselves ; or minors who have the 〈◊〉 〈◊〉 〈◊〉 , yet both do effectually obliege their prepositors : and it there 〈◊〉 more prepositors , they are lyable , in solidum . but such obligations reach no further , then for what is contracted for the use of the affair wherein they are intrusted : neither are the prepositors oblieged , if they have intimate to the party contracter , not to contract with their institors : but if they contract bona fide , albeit the institor be limit , and prohibit to contract ; in such cases , the creditors contracting , bona fide , with them , are secure . all which appeareth , title de instit . actione ff . per totum . . custody is called in the law depositum , or commendatum , to which we have no suitable term ; but this contract is most fitly exprest by the duty and obligation thereof , which is to keep or preserve that which is given in custody , and it is here subjoined to mandat , because indeed it is a kind of it , for the lawers do not so much notice the accuracy of logical divisions , whereby no member can comprehend another , as the usual terms known in law ; and therefore , handle mandatum , depositum & pignus , severally , though all of them be truly mandats ; and therefore , also depositum may be fitly defined , to be a mandat or commission , given and undertaken , to keep and preserve something belonging to the mandator , or some third party ; and therefore , whatsoever hath been before said of mandats , must be here understood of custody , and needs not be repeated , except what is speciall in custody . . the civil law maketh a difference in the diligence of mandatars and depositars , that these are lyable only for fraud , where of alone the pretors edict makes mention , l. . § . ff . depositi , l. . ff de regulis juris , l. . ff . depositi , where by the depositar , though he loss the thing depositate , without fraud is free , but it is extended to lata culpa , the grossest fault quae dolo aequiparatur in jure , l. quod nerva , . ff . depositi , where the diligence opposite to grossest faults , is excellently described , by such diligence as men ordinarly do , or the depositar doth in his own affairs ; but mandatars are lyable for the lightest fault ; yet as is shown before , that is by the constitution of the civil law , and not by the nature of the mandat , for surely the reason and ground of the diligence of both is alike , as being gratuitous , and at the free choice of the constituent , who therefore should demand no more in either case , but such diligence as the person intrusted useth , or men ordinarly do in their own affairs , unless it be otherways agreed , or that the depositar hath procured the custody when others offered , l. . § . . ff . depositi , or that he have any honorary or sallary therefore , which may be consistent here , or in other mandats , when in the meaning of the parties , it is not an equivalent satisfaction to the benefite received , which ordinarly is not esteemable , as the sallaries of medicines for the preservation of health , or life , and curing any member ; or of judges , or lawers for the doing or procuring of justice ; and therefore , is called a honorary , and the contract is esteemed notwithstanding free ; or in depositations , made in case of naufrage , fire , tumult , or falling of houses , where the positive law giveth the double in case of denyal of the thing depositat , in commiseration of these cases for the publick good , l. . ff . depositi ; but these cases must be evident , and the only causes of the contract , l. . § . . ff . depositi . hence it followeth , that depositars are not lyable for light faults , or the perishing or deterioration of the thing depositat by casuality or accident ; yet it may be questioned , if the depositar delay , and not redeliver , whether in that case he is lyable to make it good . the same question is also in mandats , and the law is for the affirmative in this , and all other cases , unless the thing after the delay would have the same way perished , if it had been restored , l. . ff . de rebus creditis , l. . § . . ff . depositi , where the depositars peril is , per judicium acceptum ; the reason whereof , is rendered , because if the thing had been restored , the owner might have sold it , and so though it had perished , he had been no loser , yet this is partly penal , and the adequat ground of it must be by the obligation of reparation , of the damnage sustained by that delinquence , in not restoring the thing depositat to its owner when required ; and therefore , it is to be measured according to the true interest , and though possibly the owner might have sold it before it had perished ; yet unless there had been a known occasion or offer to have bought , or purchased it , at the time of the remaining of it after delay , equity would not conclude the making up of what had so perished , in this we are not bounded with any positive law or custome ; and therefore , equity in it with us may take place , and we are not severe in diligence of mandatars , as appears from the former paragraph , neither yet in custody ; and therefore , a person having received money in keeping , and it being demanded , he did declare that it was sent with his own to dundee for safety , and that the owner might have it there for sending for ; and thereafter , dundee being taken and plundered , he was liberat , giving his oath that the money he got in keeping was lost there , july . . fiddes contra jack . and a horse being put in the park of halyroodbouse for grassing , though he was lost ; the keeper was found free , because there was a placat on the entry of the park , that the horse to be put there was upon their masters peril , though this horse was delivered to a servant , who said nothing of the placat , november . . whitehead of park contra john straitoun . . in the civil law there is a depositation of special nature , institute by the edict , nautae caupones stabularij , quod cujusque salvum fore reciperunt nisi restituant in eos judicium dabo , l. . ff . eodem . by this edict , positive law for utilities sake , hath appointed , that the custody of the goods of the passengers in ships , or voyagers in inns , or in stables , shall be far extended beyond the nature of depositation , which obliegeth only for fraud , or supine negligence , them who have expresly contracted for their own fact : but this edict , for publick utilities sake extendeth it , first , to the restitution of the goods of passengers , and voyagers , and reparation of any loss or injury done by the mariners , or servants of the inn or stable , l. . § . . eodem . whereas by the common law , before that edict , in this and other such cases there is no such obliegement , much less are persons now oblieged for their hired servants fact or fault , except where they are specially intrusted by them : but because the theft and loss of such goods is very ordinary in ships , inns and stables before , this edict was introduced for the security of travellers , l. . § . eodem . secondly , the edict extends this obliegement , even to the damnage sustained by other passengers or voyagers of the ship , inn or stable ; for the which , the master of the ship , inn-keeper , or keeper of the stable , could be no way oblieged , but by vertue of this edict . thirdly , they were made liable for the loss or theft of such things absolutely , from which they were free by no diligence , but were not liable for accident or force . by nautae in the edict , are understood not the mariners , but the exercitors or owners of the ship , to whom the profit belongs , and so the master of the inn or stable ; and by the statute they are only liable for that , quod salvum fore reciperunt , that which they received in custody , either by themselves , or such others as they intrusted , to admit passengers or voyagers , their goods and horses , l. . § . . eodem , whether the same be ware , cloathes , cloag-bags and other furnishing for passengers or voyagers , or the furniture of horses in stables , l. . § . . eodem , or whether other things brought in , the more common opinion is , albeit the things brought in were neither known or shown to the master of the ship , inn or stable , they are liable for restitution l. . § . . eodem . and if any thing be wanting , the party loser hath , jur amentum in litem , and is not oblieged to show what is in his clog-bag , pockets , &c. gloss. ibid. the reason of all which is rendered , l. . ibidem , because it is in the master of the ships option , to receive such persons or not , and consequently , if he doubt of their trust , in case they alledge any thing wanting , he may refuse them access unless they show what they have , otherways he is presumed to trust their oath , without which , this benefite would be useless : they are also not only liable for what is received and entered in the ship or inn ; but also , if it be expresly received for that end else where , by these having power , and if it be lost before it be entered in the ship , as on the shoar , l. . ibid. neither are these persons liberate , by bidding each man look to his own goods , unless the passengers consent , l. . eodem , but their silence will not import their consent , when they are entered , and in their passage ; yet if it should be so exprest before , or at their entrie , when it is free to them to enter or not , such silence would sufficientlie infer consent . neither are they free , though the passenger take the key of the chamber or chest himself , which is but propter majorem securitatem , and not to liberate their obleigment , especially seing they may have other keys which the passenger cannot know . this excellent edict being but positive , will be effectual with us only in so far as the common customes of nations have owned it , especially in maritime matters , betwixt us and other nations , or in so far as our own custome hath received it at home ; but the evident expediencie of it cannot but make it acceptable any where , where the least respect is had to the civil law ; it was found therefore , that the master of the ship was lyable for the goods loaded therein , being burned by the fault of the mariners , after they came to the road , and he desired them to take their goods ashoar ; which some did , yet that was not respected , being very late , and not convenient time for all to disload , as was lately found , bain contra peter nairn . it was likeways lately found , that a passenger losing his money out of his clog-bag , the inn-keeper , was lyable therefore , and the fact being proven of his having a clog-bag at his entry , he had his oath in litem , for the particulars , contra stuart in whitehorn . a skipper was found lyable for the damnage of ware by the spouting of the pomp , although the ship was tight at the lousing , and that the owner of the ware was on board , and had put the ware near the pomp , that it might not be found easily by capers , seing there was no extraordinary accident by stress of weather , november . . thomas loury contra george angus . the like was found by the damnage of ware by the sea water , though the ship was repaired in the port , and the damnage was befallen by a leck , struck up in that same road , after the reparation , seing there was no extraordinary stress of weather , or other accident that could not be prevented , july . . colline lawmont contra hendry boswel . depositation of writes fall most frequently in question , by which the depositar is trusted with the keeping of the writes , and the delivery thereof , according to the terms of depositation , express , or presumed ; the terms presumed are , that the depositar should give back the write to the deponent , if he require it , and if not , to the person in whose favours it bears to be granted , as was found in the case , ker contra kers , january . . in the case of a disposition of a tenement , by a grand-father to his oye , meerly gratuitous , given to a third party , without expressing any terms of depositation : but if the terms be exprest , they are to be faithfully observed by the depositar , who is trusted , and which are always probable by his oath , if they be not in write , signed by the deponent ; in which case , the oath of the depositar cannot be received against the deponents write , or even besides the same ; and therefore , a depositars oath was not found receivable , to prove that the deponent passed from the write depositat , and ordained it to be cancelled , february . . charles cowan contra james ramsay . but the depositars oath will not prove that the write was depositat ; but the oath or write of the granter , because delivery , is presumed , unless the contrair be proven by the oath , or write of him in whose favour the write is conceived . under custody is contained sequestration , whether of consent , where any thing litigious or contraverse is intrusted in the hand of a third party , till the rights and poslessions of the pretenders be cleared , or by authority of a judge , which is a part of judicial process , of which hereafter . . consignation is also a kind of custody , whereby the consigner depositats in the consignatars hands , the sum or thing which is refused by the creditor , to the creditors behove , therein the consignatar is but the interposed person , either by consent , as it is frequently provided by clauses of consignation , or by law ; and the contract of custody standeth betwixt the creditor and the consignatar , by which he is oblieged to keep , and restore to the creditor , and thereby the debitor orderly consigning is liberat , and is not oblieged to uplift sums consigned from the consignatar , and make them forthcoming to the creditor , unless the consignation be simulat , and taken up again by the consigner , and where the law condescends on consignatars , the consigner is liberate , and not lyable for the consignatars sufficiency , or faithfulness , as where consignations are to be legally in the hands of the clerk of the bills ; yet if the consignation hath not been orderly , but by the fault of the consigner , if the publick consignatar prove insolvent , the peril is the consigner . in conventional obligations , where the choyce of the consignatar is in the consigner , the consignation is upon the peril of the consigner , if the consignatar was insolvent , which uses ordinarly to be exprest , but if it were not , it is implyed . trust is also a kind of depositation , whereby the thing intrusted is in the custody of the person intrusted , to the behove of the intruster , and the property of the thing intrusted , be it land or moveables , is in the person of the intrusted , else it is not proper trust ; so if it be transmitted to singular successors , acquiring bona fide , they are secure , and the trusty is only lyable personally upon the trust ; but such trusts being of importance , albeit write useth not to be adhibite in them , they are not ordinarly proven but by write , or oath of party ; yet witnesses were used , ex officio , and trust of an assignation found proven thereby , february . . viscount of kingstoun contra collonel fullertoun . and a bond being in trust to an other parties behove , was found proven by presumptions , january . . executors of william stevinson contra james crawford . . this is singular in the law of depositation , that there is no exception of compensation competent against it , l. pen. c. depositi , which donellus and most interpreters account to be introduced only by justinian , and was not so before , nor by the nature of this contract , nor by equity : but the contrary appeareth , because the very intent and nature of this contract is , that the thing depositate must be keeped and restored whensoever demanded , yea , though it had a term , yet unless there were a sallery , or some interest in the keeper , it may be demanded whensoever , because the term is in favours of the deponent , not of the depositar , whom it bindeth during that time , and so it may be renounced whensoever by the deponer , cuique licet juri pro se introducto renunciare ; and therefore it is the nature of this contract , that the thing depositate should be restored upon demand , and his accepting thereof so , is a tacit quiting of any objection in the contrary , but the convincing reason is that compensation is only in things of the same nature and liquid . but in depositation , the dominion & possession of the thing remaineth in the deponent , though it be numerate money consigned , and to medle with it is unwarrantable , and accounted in law theft , as being contrect atio rei alienae ; and therefore , that being a thing cannot be compensed with mutuum , where the property and dominion is in the borrower , and but a personal obligation to repay , which cannot be compensed with a body or quantity , the property whereof is not alienat . the like therefore holdeth in money found , or any other way in the detainers hands , without right to the property of it ; yet if two depositars were in question of that same kind of thing , as both of money , the law allows compensation in that case . . the question is also moved here , whether the thing depositat may be detained for the necessary and profitable expenses wared upon it , though law and most interpreters fovour the negative , upon the same ground that compensation is excluded ; but the affirmative is preferred , because , as the contrary action is competent for the melioration , so much more the exception , being a part of the same contract ; and therefore , the lord balmerino having , by his own missive and back bond , acknowledged that the estate of jedburgh was disponed to him in trust , to the behove of the earl of somerseat , all the expense on the land , or for somerseat in contemplation of the trust , was found competent against bedford , who had adjudged somerseat's right . and in all cases in the law where action is competent , exception is also competent , and so with us , if instantly verified . amongst the romans , there was an edict of the pretors , in deposito , to this effect , that depositars should be oblieged to restore or make up the single value : but in things depositat through the present occasion of tumult , fire , falling of houses , or ship-wrack ( in the case of not due restitution ) for the double , l. . ff . depositi , wherein there is much utility to secure persons , depositating of necessity in these deplorable cases , but it hath not been allowed by our customs as yet . . it may be questioned , if any thing be depositate to more depositars , whether they are lyable in solidum ? so that the deponent may crave restitution , or reparation from every one for the whole value , or for his share only : the civil law is clear for the affirmative , that all are lyable in solidum , l. . § . . eodem , and upon good reason , because it is fidelity in preserving one individual thing that is undertaken , which therefore , de natura rei , must obliege every person to the whole , seing he is not oblieged to restore a part of the thing depositat , but the thing it self ; yet if the depositars be all solvendo , they are free paying their part , the thing depositat being money , l. . si duo haeredes , ff . depositi ; but in this case , there were not more depositars , but more heirs of a depositar . and in this depositars and con-tutors differ , that the diligence of these , even as to their con-tutors , being greater then of the other ; this being consequent to the nature of depositation , will no doubt be followed by us . in deposito , in the law , the deponent hath beneficium juramenti in litem , or to prove the particulars or quantities wanting and their value , secundum praetium affectionis , because of the exuberance of trust in this contract , l. , § . . ff . depos . but not the depositar in the contrary action , l. . eodem . where the reason is added , because there is no breach of faith nor trust , but damnage and reparation in question : the depositar also detaining , being condemned becomes infamous , l. . ff . de his qui infamia notantur . hence it is from this trust , that if a chest or other continent sealed be depositat , action is competent for all that was therein shown or not , l. . § . . eodem ; and therefore in such cases , the deponents oath in litem , must be taken , or else this interest perisheth , which is suitable to our custome , before mentoned in the case of inn-keepers , and there is good reason and equity , pro pretio affectionis , but i have not observed it questioned or decided . this being a contract of greatest trust , restitution is to be made , cum omni causa , as fruits , and birth , and annualrent , post moram , l. . c. depositi , but annualrent with us is not due , sine pacto , but may be made good by modification of expense by the lords . there is a frequent case of depositation of writes before delivery thereof , which therefore suspende their effect , until the terms of the depositation appear , which is unquestionable by the oath of the party receiver of the write , both that the write was not delivered , but depositat , and also upon what terms . . pledge either signifies the thing impignorat , or the contract of impignoration , in the same way as pignus in the law is taken , and it is a kind of mandat , whereby the debitor for his creditors security , gives him the pawn , or thing impignorat , to detain or keep it for his own security ; or in case of not payment of the debt , to sell the pledge and pay himself out of the price , and restore the rest , or the pledge it self upon payment of the debt ; all which is of the nature of a mandat , and it hath not only custody in it , but the power to dispone in the case of not payment ; but if the profite of the pledge be alloted for the profite of the debt , which is called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , it is a mixt contract , having in it a mandat , and the exchange of the usufruct , or use of the pledge for the use of the debt . . this contract hath this special in it , that it is not meerly to the behove of the constituent , as ordinarly mandats are , but it is to the behove of the hypothecar , for his security , and so ends not with the death of either party , nor is revockable as other mandats but passeth to heirs and assignays ; and therefore requireth greater diligence then mandats , viz. such diligence as prudent men use in their affairs , but obliegeth not for the lightest fault , l. . ff . de reg . juris . this is also singular in wodsets , or impignorations , that thereby there is constitute a real right in the pledge , which no deed nor alienation of the constituent can alter or infringe , which is not so in mandats , or things depositat , neither in location , whereby there is only a personal right , and if the property of the thing be alienat from the constituent , the personal right hath no effect , as to the thing about which it is constitute ; but there is here a real right , of which hereafter among other real rights . . we shall not insist in the manner of the sale of pledges prescribed by the roman law , and the intimations or denunciations requisite to be made to the debitor , that being wholly changed by our customes , for in wodsets of lands , the wodsetter hath a disposition of the property , but with a reservation or paction , to sell back again to the debitor , upon payment of the debt , and so the wodsetter cannot by vertue of the impignoration , sell the lands and pay himself , but all he can do is to affect the wodset lands , by legal diligence as an other creditor ; and if any other prevent him in diligence , they acquire the right of reversion , and no posterior diligence of his can take it away , or capacitate him to acquire the full property of the pledge , or to alienate it simply to another . the like is in the impignoration of moveables , which cannot be thereby sold , but the creditor may affect them by his legal diligence , by poynding thereof . . in impignoration either of heretable or moveable rights , the law rejected , pactum legis commissoriae , which we call a clause irritant , whereby it is provided , that if the debt be not payed at such a time , the reversion shal be void . our custome doth not annull such clauses ; but by act of sederunt , november . . it is declared , that the lords would decide in all clauses irritant , in infeftments , bonds , and tacks , according to the express words and meaning thereof precisely ; yet the lords allow such clauses to be purged by performance , before sentence , declaring the clause irritant committed . in which process , though it be committed long before , yet by payment at the barr , it will be purged , even though the party after the irritancy get possession , hope , clause irritant , john edgar contra gordoun of earlestoun : yea , though the wodsetter had obtained a decreet of removing , two years after the failzie ; against which reposition was granted , paying all damnage and interest , july . . cleghorn contra ferguson : and albeit the money was not ready to purge at the bar , so that the failzie was declared , yet it was superceeding extract for a time , that it may be purged in the mean time , february . . pringle contra ker. but where the requisition was on nine score days , there was no time granted after the decreet to purge , july . . nairn contra naper . this clause is so odious , that it was elided by the wodsetters possession of a part of the lands , and thereby getting a part of the annualrent , march . . barcley contra stevinson . the like by accepting of payment of annualrent after failzie , hope , clause irritant nasmith contra kinloch . the like by payment of annualrent , or by compensation therewith , ibid. barns contra barcley . the reason of the law and our custome is , because impignoration is a permutative contract , wherein equality is meant and required , and clauses irritant are redacted to equality , respect is not had to the terms and expressions of the contract , but to the thing truely done ; and therefore , though sale of lands with reversion be exprest , yet if there be not a competent equivalent price , and that it be not a real and proper sale , but only a wodset , under that conception , the clause irritant hath no further effect then is before exprest ; but if it be a true sale and competent price , the clause irritant is not penal , but hath its full effect ; but otherwise it is still purgeable till declarator , which therefore is necessar , even though the clause irritant bear , that the reversion shall be null without declarator , for the remeeding of the exorbitancy of such clauses irritant . . impignoration is either express by the explicit consent of parties , or implicit , which is introduced by law without consent of parties ; of such tacite hypothecations , there have been many in the civil law , as in the ware , for the price , in houses for expenses in preservation or melioration , or for money lent for that use , to a wife in the goods of her husband , for her tocher : to pupils and minors in the goods of their tutors and curators for their duty and administration to pupils in the goods of their mother being their tutrix , or in the goods of her second husband , if she did not make an accompt , and procure a new tutor before her marriage : to legators in the goods of executors : to the fisk for their tribute , or their contracts : to cities in the goods of their administrators . but our custome hath taken away express hypothecations of all , or a part of the debitors goods without delivery , and in the tacite legal hypothecation , hath only allowed a few , allowing ordinarly parties to be preferred , according to the priority of their legal diligence , that commerce may be the more sure , and every one may more easily know his condition with whom he contracts ; and therefore , goods sold were not found under any hypothecation for the price , june . . thomas cushney contra john crystie . yet with us there remains the tacite hypothecation of the fruits on the ground in the first place , and they not satisfying , the goods on the ground , belonging to the possessour , for the terms or the years when the cropt was on the ground , but not for prior or past years ; and therefore , all masters of the ground , or their assigneys , having right to the mails and duties , have interest to recover the rents thereof , from all intromettors with the fruits , rents or profits thereof , though upon a title , unless their title be preferable , or at least have the benefite of a possessory judgement : this was extended to intromettors , though they bought the corns which grew on the ground , in publick mercat at zule , albeit the heretor had poynded a part of the crop , for the rent of a prior year , unless at the term of payment , candlemas , there were sufficient fruits on the ground to satisfie the rent , march . . dam mary hay contra archibald elliot . secondly , it is extended to intromettors , with the cropt and goods of the ground , though they lawfully poynded the same from the tennants for their just debts , nic. in quibus causis pignus , &c. earl of wintoun contra barcley , unless they left as much upon the ground as might satisfie the rent , besides the houshold stuff , july . . february . . hay contra keith . the like wherein the present cropt was not accompted , but left for the subsequent rent , of which the terms were not come , june . . polwart contra thirdly , it is extended , that thereby the master of the ground may summarly stop poynding , unless sufficient goods be left to pay the rent , beside the plenishing of the house , february . . arrocks bairns contra keith . fourthly , this is extended against the donatar of the tennants escheat , intrometting thereby , who was found lyable , though no action was moved by the master of the ground for seven years , in the said case , hay contra keith . the like is sustained as to the goods of the possessours of houses , invecta & illata , for house-mailes , for all intromettors therewith are lyable , and the goods may be stopped from poynding for the possessours debt , without deforcement , being invecta & illata : but this extends only to one year , or two terms mail , december . . dick contra lands . but the hypothecation of the fruits of the ground is greater , then of the tennants other goods ; for the fruits are lyable according to the value thereof for the rents , though there remain other goods sufficient to pay the rents on the ground , seing there remained not sufficient fruits to pay the same , march ult . . lady down and her spouse contra laird of down . this hypothecation of the fruits for the rent , was extended to a town setting their customes , even against the sub-tacksman , not bound to the town , who were preferred to the tacksmans creditors in a double poynding , january . . anderson and proven contra the town of edinburgh . it was also extended to the seller of fishing against the donatar of the tacks-mans escheat , who was found lyable to restore , july . . cuming of alter contra lumsdean . this hypothecation was found to give the master of the ground right , not only to detain , but to bring back the tennants goods to the ground , de recenti , december . . william crichtoun contra the earl of 〈◊〉 , but not ex intervallo , february . . park contra cockburn of riselaw : but this hypothecation was not extended to an appryzer without diligence or possession , july . . lord panmoor contra collistoun . the like hypothecation is competent to teind-masters for their teinds , even though the heretor get a rent for the whole , or profite of the land , stock and teind joyntly , he is thereby lyable as intromettor , which was extended to ministers for their benefices or stipends , whereby they may have access to any intrometter with the teinds , out of which the stipend is modified , not only for the intrometters proportion of his lands , but in solidum , for his whole teind , according to the value of his intromission , july . . mortoun contra scot , which held , though the intromettor had a wodset of stock and teind , whereby he had but his annualrent , march . . mr. gilbert key contra mr. james gray and carmichael , and this was found not only in beneficed ministers , but in stipendiaries , who may either take them to the tennents or their masters intrometting , spots . kirkmen , mr. andrew ker contra gilchrist . there is with us no hypothecation in lands , for the price or money borrowed , expresly to buy it , nicol. quae in fraudem , paterson contra scarlet . and the preference of relicts for implement of their contracts of marriage , out of their husbands moveables , in their hands , to other creditors , is not a hypothecation , but a priviledge personal . . permutation , or excambion and sale , are so congenerous contracts ; especially in our customes , that the same work will explain both , by holding out in what they do agree , and in what they differ : permutation or exchange , is a contract whereby one thing is agreed to be given for another , which , if it be money , as it is current for goods or ware ( under which all things which can be bought , are comprehended ) then its sale , or emption and vendition . these contracts agree in this , that both are perfected according to law and our custome , by sole consent : naked pactions being now efficatious , and though neither of the things exchanged be delivered , the agreement is valid , but if there be any latent vitiosity , if it impede the use of the thing bought , the romans gave action em redhibitoriam , to restore and annual the bargain , or quanti minoris , for making up the buyers interest ; but if the seller was ignorant of the vitiosity , or insufficiency , he is not lyable to make it good , unless he affirm it to be free of that , or in general , of any other faults , but if he knew , he is lyable , if it were not showen to the buyer , or of it self evident or known ; in which case , the seller is only oblieged , if he expresly paction , our custome alloweth making up of latent insufficiency , of which before . but these contracts differ , first , in the materials , which in sale must be money , as such , and as a liquid price , else if it be respected as a body , or indefinite quantity , as uncoyned or uncurrent money , or if it be bought by the weight , or intrinsick value ; or if money of one countrey be exchanged with money of another countrey , having no common standard , here is no sale but exchange : neither is exchange of money loan , because it is not as a liquid quantity , as when so much english money is given for the floren crown , or gilder , and the remitting thereof . the price must be also certain , or which may be assertained , as such a person gave , or as shall be had from others by the seller for the like goods , or as such a person shall appoint , which if exorbitant , may be redacted , ad arbitrium boni viri , which seems to consist , though the arbitriment be made the buyers . secondly , excambion and sale differ mainly in this , that in sale , delivery of the goods or things bought , with the obligation of warrandice in case of eviction , which is implyed in sale , though not exprest , is the implement of it on the sellers part , even though the buyer know , and make it appear that it were not the sellers , yet he could demand no more but delivery and warrandice ; but contrarways , the price must be made the sellers , and he may refuse it if he can shew anothers right . but in excambion , delivery must be made on either part , and the thing delivered must become thereby the receivers , else , if it appear to be anothers , it may be refused before delivery , and if it be evicted after , the contract becomes void , and the other party hath regress to what he gave in excambion , which followeth even singular successors , though it be not so expres , and though the singular successor was by appryzing , &c. prior to the eviction , november . . earl of montrose contra sir john ker. and that without necessity to instruct , that he who craves regress had right when he changed any further then by the narrative of the excambion , which was of an old date , in a charter from the king , bearing , these lands to have been disponed in excambion , for the defenders lands , and that the excamber and his heirs should have regress , without mention of assignays , albeit the pursuer was assignay , july . . laird of wardess contra laird of balcomy ; where it was also found , that no person needed to be cited to obtain regress , but the present proprietar of the lands excambed , and the successor of the contracter , and no intervenient authors , july . . inter eosdem . . sale may consist in all things which are not prohibite , such as buying of pleas , by members of the colledge of justice , by the act of parliament , which is understood of all persons , having imployment about the session , as advocats , clerks , writers , &c. agents and their servants ; wherein by pleas , are not understood things wherein there may be contraversie , but wherein there is process actually depending , and called and not decerned , july . . mowat contra mcclane . july . . sir robert richardson centra cranstoun riddel . but the prohibition doth not annul the right or hinder process , but is a ground whereupon deprivation may follow by the act , as in the former case , june . . adam cunninghame advocat contra maxwel of drumcoltrane . sale being perfected and the thing delivered , the property thereof becomes the buyers , if it was the sellers , and there is no dependence of it , till the price be payed or secured , as was in the civil law , neither hypothecation of it for the price , hope de empto . john parker contra stevin law. nic. quae in fraudem creditorum , paterson contra scarlet . in fale there may be earnest interposed , or reversion granted , or the commissory paction or clause irritant , adjected , that if the price be not payed , the sale shall be void , or the same may be conditionally , if the price be payed by such a day , or if any other offer not a better price in such a time , or with condition not to sell , without consent , of which in order . . as to the first , though giving of earnest be very ordinary in bargains of sale and others , yet it is no less dubious , what the nature and effect thereof is , some holding it to be , to the effect the bargain may be evident and certain ; for though sale be perfected by sole consent , yet it is not always evident to the parties and the witnesses , whether it be a communing or a contract ; and therefore , to make it sure to both , merchants who may not hazard upon dubious interpretations , do give earnest as an evidence of the bargain closed and perfected : but others think , that the effect and intent of earnest , is that the giver of the earnest may resile from the bargain if he please to lose his earnest , and the taker may resile , if he return the earnest with as much more . the civil law , l. . c. de side instrumentorum & instit . de empt . vend . in principio ; and many interpreters seem to favour this construction : yet many texts in law adduced by wezenbecius , faber and others , are for the former opinion , and they do interpret the contrary places , not to be of sale perfected , but of an antecedent promise or paction , to buy or sell : it hath not oft occurred ( so far as i have observed ) to be decided with us , which of these opinions is to be followed with us , but the former seems to be preferable , because ordinarly with us , earnest is so inconsiderable that it cannot be thought to be the meaning of the parties to leave the bargain arbitrary , upon the losing or doubling thereof , so was it found , february . . contra james riddel . to this also suits the sense , that earnest is taken in the scripture , for evidence and assurance , making the matter fixed and not arbitrary , which at least evinceth that the word hath been anciently taken so , whatever hath been the custome and constitution of the romans . . reversion or the paction of redemption , though ordinarly it is used in wodsets , which albeit they be under the form of sale , yet in reality they are not such , there being no equivalent price , yet may it be where there is a true sale , and this paction is no real quality or condition of the sale , however it be conceived , but only a personal obliegement on the buyer , which therefore doth not affect the thing bought , nor a singular successor , though reversion of lands and heretable rights , be made as real and effectual against singular successors , when it is ingrosled in the bargain , or duely registrate , yet that is not by the nature of the thing , but by the statute , and takes no place in other cases , as in reversion of moveables , which are sold under reversion ; but if impignorat , the reversion is a part of the contract , and is effectual against singular successors . as to the other pactions adjected to sale , sometimes they are so conceived and meaned , that thereby the bargain is truely conditional and pendent , and so is not a perfect bargain , till the condition be existent : neither doth the property of the thing sold pass thereby , though possession follow , till it be performed , as if the bargain be conditional , only upon payment of the price at such a time , till payment the property passeth not unto the buyer ; but there are many other adjections which are exprest under the name of conditions and provisions , which are not inherent as essential in the bargain : but extrinsick personal obliegements , the existence where of doth not annual the sale , or suspend or annual the property in the buyer , at least in his singular successors , as hath now been said in reversions , and is frequent in many other cases . . in sale there uses to be adhibit a clause irritant , or resolutive clause , that if such a thing or condition were , or were not , in that case the bargain should be null and void , as if it had never been made and granted : whence ariseth a very subtile debate , whether such clauses , whatsoever their tenor be , are effectual , and follow the thing to singular successors , and do render the bargain and property acquired , null in it self ? or whether such be but personal obligations only ? which though they may annul the property or bargain , if it remain in the hands of the contracter , cannot reach it , if it be in the hands of a third party , is the question : for clearing whereof , it appeareth , first , that if such conditions , or resolutive clauses do stop the transmission of property , and be so meaned and exprest , then as is said before , the bargain is pendent , and the property not transmitted , even as to singular successors , and the seller remains the proprietar : but if by the contract and clause , the buyer become once the proprietar , and the condition is adjected , that he shall cease to be proprietar , in such a case , this is but personal , for property or dominion passes not by conditions or provisions , but by tradition , and otherways prescribed in law ; so that these conditions , however exprest , are only the foundation , upon which the property might pass from the buyer , if the thing bought remain his , unless by law or statute it be otherways ordered , as in reversions of lands , alienation of fewdal rights , which become void , and return if alienat , and not payment of the few duty , whereby the few right becomes void , but all by law and custome , and not by privat paction . . secondly , the doubt remains , if such personal conditions with such clauses resolutive be in the body of the bargain , whether it be effectual against singular successors , who cannot but know their authors rights , and therefore are in dolo & mala fide , if they acquire such rights in prejudice of the conditions thereof , and so ex dolo , at least such clauses will be effectual against the singular successors ; but first , this hath no force where the acquiry is not voluntar , but necessar for satisfaction of debt by appryzing , and other legal diligence , in which ordinarly the acquirer doth not , neither is supposed to know his authors right . secondly , if the bargain be so necessar , that the purchaser be a creditor , and hath no other probable way of payment , in which , though he see his authors right bearing such clauses , yet he acteth upon necessity , for his own satisfaction . thirdly , these who acquire such rights without necessity , and see therein such conditions in themselves personal , though having resolutive clauses , do not thereby know that the third party hath the right , jus in re , but only jus ad rem ; and therefore , if they acquire such rights , the property is thereby transmitted : and though there may be fraud in the acquirer , which raiseth an obligation of reparation to the party damnified by that delinquence ; yet that is but personal , and another party acquiring , bona fide , or necessarly , and not partaking of that fraud , is in tuto : but certain knowledge , by intimation , citation , or the like , and inducing malam fidem , whereby any prior disposition , or assignation made to another party , is certainly known , or at least interruption made in acquiring , bona fide , by arrestment or citation of the acquirer : such rights acquired , not being of necessity to satisfy prior ingagements , are reduceable , ex capite fraudis , and the acquirer is partaker of the fraud of his author , who thereby becomes a granter of double rights , but this will not hinder legal diligences to proceed and be compleated , and become effectual , though the user thereof did certainly know any inhoat , or incompleat right of another ; but it is more doubtful , and not yet clear by custome , whether a voluntar right taken for satisfaction of a prior debt by him , who certainly knew of a prior disposition or assignation , though not perfected , would be reduced as fraudulent . the relating of a right unto another right , without any invalidity thereof exprest , was found to infer an acknowledgement of it , february . . lawder contra goodwise of whitekirk . of late the like conditions have become very ordinary , that thereby property may become inalienable , and as a perpetual usufruct ; yet it seems such are neither expedient for commerce , or for the necessity of the proprietar , nor consistent with the nature of property , whose main effect is alienation , or disposal of the substance of the thing , as usufruct is of the fruits ; and therefore , it were safest upon such clauses to use inhibition , yet they may be effectual against lucrative alienations or donations , in respect that by these clauses , at least the parties are personal creditors , and so alienations gratuitous in their prejudice , may be anulled by the statute , . c. . but of late , it hath been found , that the clause irritant being in a tailzie , and in the seasine of both the first heir , and of the last , that it did annul the creditors rights and appryzings , and the next who might have been heir of tailzie , had access to the land without that heir who incurred the clause irritant his debt , february . . lord 〈◊〉 contra creditors of the earl of annandale . . sale being compleat , the question is , if the thing should perish by accident before delivery , and not after delay , and without the fault of theseller , whether the hazard be the sellers or the buyers , by the civil law , the buyerhath the peril , l. . § . . ff . de contrahenda emptione . l. . ff . de furtis . l. . cod. de periculo & commodo , the peril is not the sellers , unless expresly he take the hazard , or that the buyer buy , per aversionem , l. . § . . l. . § . de contra abenda emptione , all which putteth both the peril and profites of the thing upon the buyer , ejus est periculum , cujus est commodum ; and it is far more clear , that the accessions , fruits and profites of things bought , are the buyers , even before delivery ; and by the same ground , must the peril be his also : but on the other part , that the loss is the sellers , is the opinion of others , because the seller after the sale is debitor for the delivery , and it is a general rule , that the debitor is never oblieged for the hazard of accidents , when he is debitor for a certain body ; but all agree , that if the sale were of a fungible , as wine , oyl , or grain , not considered as a particular body , as the wine in such a seller , or the grain in such a house , but generally so much grain or wine as a meer fungible , in that case the peril would be the sellers , because the perishing of any one particular could not be the buyers ; but beside authority , the main reason on the contrair is , that every thing perisheth to its owner ; and before tradition , the seller is proprietar of the thing sold. i have not observed it debated or decided with us , if the thing sold should thereafter perish , that yet the price is due ; and if by common custome , the seller had not forborn in that case , doubtless the buyer would not have payed willingly , which therefore seems to be our custome , seing none have obtained the price , who did not deliver , or offer the thing sold , which is also the opinion of cujac . ad l. . ff . locati , yet the peril of a housesold , and thereafter burnt , found to be the buyers , though the disposition bore an obliegement to put the buyer in possession , but the buyer did voluntarly take possession , and re-builded the house , and was infeft before the burning , december . . hunter contra wilsons . in sale , absolute warrandice is implyed , which is not to be extended to moderate servitudes , as was aquaeducts and city servitudes , l. . ff . de contrahenda emptione . . location and conduction is a contract whereby hyre is given for the fruits , use , or work of persons or things ; this contract keepeth a great proportion with sale , for as no sale can be without a price , so no location without a hire , and as the price must be certain , either being expresly named , or indirectly , being the price that such another gave for the like , or that such a person should think reasonable , both which become certain , if the price given by that other party appear , or if that third person modifie the price otherways , the sale is void and pendent , and unperfect , till that be performed : so in location the hire must be the same way assertained ; for if the pryce be but made , ex post facto , it is no proper location , as he who gives his cloath to be dyed , and promiseth to agree for the cloath , as the dye shall be in fineness , this is no location , but an innominat contract . but it is contraverted , whether sale and location do also agree in this , that as the price must be in current money , so also the hire . it was of much moment in the roman law , because location was a nominat contract , perfected by sole consent , but other contracts innominate were but naked pactions , till the thing agreed upon was interposed ; and therefore it is there accuratly debated , some holding that money only can make the hire in a proper location , and some that any other liquid quantity or fungible is sufficient , as oyl , grain , &c. but with us , all agreements being effectual by sole consent , we need not much debate ; and therefore , seeing all the effects and conditions competent , where the hire is money , are also competent where it is any other fungible , we agree with that opinion , that such are proper locations . sale and location differ mainly in this , that the intent and effect of sale , is to alienate the substance of the thing bought , and state the property thereof in the buyer ; but in location , the ordinar intent thereof is , that the substance and property of the thing is not alienat , but remains in the setter , and the taker hath only the fruits and work thereof , which must not be already done , and extant , but that which is to be done , & in spe : as for instance , a bargain for the fruits of a field , which are already growing , is no location , but sale , and so of use or work , already performed ; and therefore , in the nature of this contract , there is a hazard and uncertainty in the conductor of the quantity , or value of the fruits , use or work , the peril and profites whereof is the conductors . . but here ariseth the question , that in the case of the sterility of the ground set , or the absolute ceasing of the use , fruit or work , whether the hire be due in that case ? the determination thereof will clear the exception of the former rule , concerning the peril and quantity of the use , fruit and work locat ; and therefore , first , where the use , fruit and work doth altogether cease , without the fault of the conductor , there the hire must also cease , because the one is given as the cause of the other , and the peril undertaken , is not of the being , but of the quantity and value thereof ; for instance , if land taken be inundat or sanded , and so have no fruit , it is the common opinion of all , that the hire or cane ceaseth to be due for that time : or if a horse sett , or a servant hired die , the hire or see is but due according to the time of their life ; but if they be sick or unprofitable for a time , yet with hope of recovery and profite , in that case there is no abatement . secondly , though the opinion of the learned be very diverse , in the matter of the barrenness of the ground , some accompting it , if the half of the ordinar increase fail , some if the third , and some leaving it to the common estimate of the place , what is called barrenness or the arbitriment of the judge ; yet i think it more rational to determine that case with the rest , upon the former ground , that if there be any profite of the fruit above the expenses , or work , the rent or hire should be due . . the like is in vastation by publick calamity , which hath been frequently decided upon occasion of the late vastations , but this will not extend to private accidents besalling the cropt after the growing or reaping , even though by accident it should be destroyed or burnt without the takers fault , the hazard is his own , because it is not then respected as the fruit , but as a body in being , whereof he hath the property and peril : but in publick calamities by war , not only the cropt is taken away , but the tennants aredisinabled , and hindered to labour , and therefore must have abatement , this will take no place , if the abundance of another year compense the sterility of the former , l. . cod. locati . . seing the intent and effect of the location , is not to alienate the property of the thing locat , it followeth , that this contract is meerly personal , and thereby there is no real right in the thing , whose use , fruits , or work are locat ; so that if the property of these things be alienate from the locator , the interest of the conductor ceaseth , and a singular successor may recover it from the conductor , notwithstanding the location , which reacheth it only by the personal contract , as it did belong to the setter , and so it would be in our tacks or rentals , by their own nature , but it is otherways provided by a special statute , of which hereafter . we shall speak nothing here of feu-farms , which though they are locations , yet by the law they become real , leaving these to their own place . . what shal be said of that contract , whereby money or any fungible is lent for the like in kind again , with such a hire for the use thereof ? these are called usurary contracts , and they cannot be comprehended under loan , because they are not gratuitous , or under location , because the property and substance is alienat , usurary contracts come nearest to location ; but to repress the exorbitance of usurers , the civil law rejected usurary contracts , and admitteth only of the profite of fungibles . in some cases , the judicial law also rejecteth them , and prohibiteth usury to be used among the jews , though they might use it with other nations . so doth the canon law disapprove it , and most nations , where that law is in vigor ; yet we , and generally other protestant nations do allow of the profite and hire of money , or other fungibles , being within the proportion allowed in law , which sometimes was ten for each hundred in the year , thereafter eighth , and now six ; and therefore usurary-contracts are only , wherein there is unlawful or exorbitant profites beyond the law. so did the civil law allow , usuras centesimas , viz. one of an hundred monethly ; and their usuras besses , semisses and dodrantes . in the several cases allowed in law , we have only one measure for all ; the nauticum foenus , is where so much is given , not only for the profite of the money , but for the hazard and peril of the ware bought thereby , or of other fungibles , by sea , and so it is a mixed contract ; and in both cases profite and annualrent is lawful , as having no moral countermand , and so being free , is not only subject to our pactions and promises , which we are morally oblieged to observe ; but hath also in it permutative justice , in that money , wine , oyl , grain or the like , have a real use profitable to men by the exchange thereof , and increase that may accrew thereby , and for which proportionable hire may be lawfully and profitably constitute : these usurary-contracts therefore are to be reduced , not to loan , but to location , though by accident they have that difference from the rest , that the property is alienate , because there can be no use of money or fungibles otherways . the penalty of exorbitant usury with us was , that the debitor for such usury , revealing the same , should be freed of the contract , and if he did not , any other revealing it should have right to the sum given out upon usury and profit thereof , par. . cap. . but afterwards , all taking of more annualrent then ten per centum , directly or indirectly , by taking of victual within the ordinary prices , or buying victuals for the annualrent with exorbitant prices in case of not delivery , or by improper wodsetts , having greater back-tack duties then effeiring to ten per centum , or otherwayes , do confiscate their moveables and the sums so given out ; which the party cannot renounce , but the advocat hath interest to pursue therefore , without the parties concurrence ; and if he concur , he shall have restitution of what more annual he payed norten per centum , parl. . cap. . but the annual was retrenched to eight per centum , parl. . cap. . and to six per centum , parl. . cap. revived , parl. . cap. . but whether proper wodsetts without back-tack , though the rent be much more then the ordinary annualrent , be an usurary contract , and falls under the general clause of the said act , though it hath sometimes been essayed , yet hath not been decided . the main reason that the parties found on is , on the one part , that there is indirectly more then the ordinary annualrent , and so falls under the act , . and on the other , that improper wodsetts are there exprest , and proper wodsetts seem ex proposito omitted , and in proper wodsetts all hazard lyes upon the wodsetter . of setting the land of dead , poor and waste , we shall leave this to every mans private judgement , till publick judgement cast the ballance ; but all proper wodsetts before . are restricted to the annualrent by the act of parliament , . cap. . if upon offer of security , the wodsetter will not quite possession , he is countable from the offer , as hath been often decided since that act. there uses also , in wodsetts and reversions , to be included , a condition to set the wodsett lands for such time , to begin after redemption , which if it be far within the true worth , is usurary , and is declared so , parl. . cap. . that lands provided to be set for tacks not near the true worth , the same shall not be keeped : yet such a tack was sustained , seing the wodsetter had not his full annualrent , by reason of a liferent reserved in the wodsett , and the wodsetter was the constituents brother , and so like to be for his portion natural , whereof the tack was a part , june . . laird of polwart contra home ; but in other cases , such a tack was found null by the said act , but not by the act betwixt debitor and creditor , february . . my lord ley contra porteous . . this much for usury of annualrent by contract or pactions , it is also due of the law , and by the obligation of recompense and reparation ; and in the civil law , in all contracts bonae fidei , it is due ex mora , by the delay of the debitor , which is understood after he be required for the same , or that the term is past , nam dies interpellat pro homine , and in other contracts by litiscontestation : but our custom hath little use of that distinction , neither followeth it that rule ; but where annualrent is not agreed , first , ordinarly it is not due till horning be used against the debitor , and that by a special statute , . cap. . yea , though the horning was not registrat , and so null as to escheat , it was found valid as to the annualrent , july . . isabel ker contra parochioners of moramside ; but it was found not competent by way of special charge in the suspension of the principal debt , but ordinarly by ordinary action , july . . purveyance contra laird of craigie , where dury his opinion is , that if the charger had raised horning upon the act of parliament , it would have been sustained summarly , and is now ordinarly sustained summarly by a special charge , when the sum is charged for or suspended ; but it being once due , it not only continueth during the life of the person denounced , but still thereafter till payment , july . . huntley contra heirs of mr. john manson . . annualrent provided by a bond for one year , though it express not for all years thereafter , yet continueth due till payment , decemb. . . blair contra ramsay . the like where one term was only in the bond , spots . usury , keith contra bruce ; and where annualrent was promised for a time by a letter , it was found still due till payment , january . . george home contra seaton of menzies . . it is due by use of payment only without express paction , march . . forrester contra clerk. . annualrent is ordained to be due to cautioners by their principals , for sums payed by them as cautioners by the clause of relief , as being damange and interest , though the bond bear no annualrent , by statute of session , decemb. . . hope usury , torry contra dowhill ; dec. . . 〈◊〉 contra johnstoun , where the clause of relief bare only to relieve the cautioners of his caution , and not of all damage . the like though there was no further distress against the cautioner , but registration , january . . i. wauchton contra l. of innerweek ; and this was extended to co-principals , having clause of mutual relief of cost , skaith , &c. novemb. . . black of largo contra william dick. . annualrent is due without paction by tutors and curators to their pupils , of which formerly , in the obligations betwixt them . . annualrent was found due without paction , by an heir-male for the portion of the heir-female , though not required for many years , and that still from the term of payment , july . . calhound contra l. of luss. the like by a husband , who was oblieged to his wife for the annualrent of the tocher payable by the father , though the tocher was never payed , hope husband and wife , baird contra gordoun , spots . usury , mr. john skeen contra mr. john hart. . annualrent was found due for the price of lands possest by the buyer , without paction , hope usury , mr. james stirling contra mr. david ogilvy ; february . . dury of that ilk , contra lord ramsay ; the like though the delay of payment was not the debitors sault , november . . cuming contra cuming ; spots . usury , home contra laird rentoun . annualrent was not found due without paction , for a sum lent to an old man , on condition , that if he died without heirs , the creditor should become the debitors heir , and yet he having heirs , annualrent was not found due , decemb. . . george logie contra logie . but the lords do sometimes allow annualrent , or an equivalent expense among merchants ; and they did so in a provision by a father to his natural daughter payable at her marriage , which was found so favourable not to hasten her to marry , that annualrent was allowed her , seing the condition was in her power , june . . margaret inglis contra thomas inglis . the romans allowed annual till it equalled the principal , but no further ; but our custom hath no such restriction . yet , we restrict the english double bonds to the single sums and annualrent thereof , but no further then till it be equivalent to the principal , seing by the tenor of such bonds , it appears the meaning of the parties , that no more should be demanded in any case , january . . sir alexander frazer and leyes burnet , contra sir james hamiltoun . annual upon annual is condemned of all , when it is comprehended in the first paction ; but it is ordinar , by posterior contracts , to accumulate annualrents and make it a principal , and so both that which was first principal , and that which was once annual , bears annual : so also annual , by vertue of the act of parliament , if decreet follow thereupon and horning , will bear annual , seing there is no limitation ; but this will not be extended to annuals in time coming after the horning : and last , annualrent payed by a cautioner , by the said statute of session , will bear annual , because to him it is a principals . annualrent was also found due without paction , for money expended by the custom of bourdeaux , decemb. . . antonieta peron contra morison . to return to location , all things may fall under the same , that can have any use , fruit or work , but real servitudes cannot be set severally , but only as accessories to the thing which they serve . works which can be locat , . must be lawful . . they must be performable in that which belongeth to the conductor , or in reference to his person ; for work employed upon the workers own matter , it is no location ; as if a goldsmith be employed to work such a piece of work in his own mettal , and the same to be bought as it is so wrought , it is sale and no location , unless there be two distinct bargains , one for the mettal , which is sale ; and the other for the workmanship , which is location ; so he that bargains for the benefit of what fish he shall take for such a time in his own water , contracteth sale , and not location ; and if the work be to be employed on that which concerns a third party , it is not location , but a mandar . . from this contract , the conductors obligation is to pay the hire , and after the end of location , to restore the thing locat , making up all damages , in which the conductor is lyable even for light faults , and must use such diligence as prudent men use in their affairs , but is not lyable for casual or accidental perishing of the thing locat . some hold him lyable for the most exact diligence and lightest fault ; but others , with better reason , are for the contrary , it being the common rule in diligence , that which is only to the behove of the keeper , he should use most exact diligence , and is lyable for the lightest fault , as it is in loan , and these who have the custody only for another , are lyable but for the grossest fault , which is equivalent to fraud , and for such diligence as is commonly accustomed by every man ; but these who have the custody for themselves , and partly for others , are in the middle way oblieged for such diligence as themselves or prudent men use in their affairs . . the obligation on the part of the locator , is to deliver the thing locat , and to continue it during the time of the location , and to refound to the conductor his necessary expense employed upon the thing hired , unless the custom of the place be otherwayes ; and so the reparation and upholding of houses set in prediis urbanis lyeth upon the setter , if it be not otherwayes agreed ; but in lands , or prediis rusticis , the tennent is oblieged to keep the land and houses in as good condition as he got them , and may not destroy mosses , nor rive out meadows , and is lyable for the damage , though there be no such provision in his tack , february . . laird of haddo contra johnstoun ; but he hath no reparation for any building or policy which he maketh , which is accounted as being frely due without expectation of recompence , if it be not otherwayes agreed , or that the rent be raised thereby . . society is not so much a permutative , as a commutative contract , whereby the contracters communicat each to other some stock , work , or profit . the effect of society is , that thereby something which before was proper , becometh , or is continued to be common to the co-partners , and it is either a stock , or the profit of a stock , or work , labour or industry : yet , this communication is not effectual to transfer the property in part , or to communicat it without delivery or possession , by which , property by positive law is conveyed . there is ofttimes a communion without society , because it is of accident , as legators , heirs or acquirers of the same thing , pro indiviso , but if there be interposed a contract thereupon , to continue that communion for the common profite of the contracters , it becometh a proper society . . the matter of society are things , fruits , work or industry , and that variously ; for sometimes the thing or stock is only put by one , and the work and industry about it by another , as where a stock is given in partnership to a merchant to trade with , here it may be that the merchants skill and pains is ballanced with the profite of the stock of the other , who doth not , nor cannot make that use of it . or land is set to husband-men to be laboured , and the increase to be common . sometimes each partner bringeth a stock to the society , and their work or pains withal , and sometime only work , and the profite thereby is made common ; and sometimes the one communicateth the stock it self , whereby the property thereof becometh common to himself and other partners , and the profite accrewing thereby , and the other bringeth in a stock , but doth not communicate it self , but the profite thereof ; in all the interest and shares , may either be equal or unequal , but without work and industry by the partners or others , there can be no society , because there can be no profite or hazard , of profite or loss . . the nature of this contract is , to have in it equality of profite and loss , proportionable to the value and worth of the stock and work , which is unalterable and undispensible by the nature of this contract ; and scarcely can any paction or indirect course , be effectual in the contrair , because thereby the contract would become usurary and void ; which equality , as to the work and industry is illiquid , and the value thereof is esteemed according to the common estimate ; but where there is a special value set upon it , by the private consent of parties , which ( as was said before of the private rate of parties ) without fraud it is sufficient ; so sometimes the value of the work is estimate equal to the stock or industry of the other partner , and sometime the half , third , or other proportion of it : but where the matter is clear , or where the society consists of a stock in money , the profite must necessarly be proportionable thereto , and the hazard or loss accordingly ; but if it be agreed , that where the stocks are equal , the one should have one third , and the other two thirds of the profite or loss , or that one should bear the hazard of the stock of both , and the profite should be equal , or any other inequality , it is clearly usurary , unequal and unjust , neither doth it subsist as a donation , unless so specially exprest and really meaned ; for oftimes to make inconsistent contracts subsist , it is agreed , that the inequality , if any be , shall be a donation ; but that is a meer colour , and doth work no effect , seing the intent of the contract is truely to communicate like for like , and not to gift , and that addition is but simulate or fraudulent : hence society may be described a contract , for communicating the profite or loss of that which is brought unto the society , proportionably according to the share and interest of each partner . it is true that if there appear no inequality in the stock and industry of the partners , when no proportion is exprest , equal share of profite and loss is understood ; or if the skill or industry of some of the partners be of great importance , the society may consist in these terms , that these persons shall have no share of the loss , and shall have such a share of the profite according to the sentence of sulpitius , but if such inequality appear not , the sentence of mucius , rejecting such inequality is just , and there is no contrariety between the opinions of both , § . instit . de societate . . it remains to consider , what are the effects of society while it is , and how it ceaseth : as to the first , the disposal and management of all the affairs of societies is in the whole partners , and each of them ( though having an unequal share ) hath an equal vote , unless it be otherways agreed , and the common rule is , potior est conditio prohibentis , so that every one hath a negative vote , in acts that are not necessary for the design of the society , unless by the custom , or paction , or deed of the parties , it be otherways ordered ; as where it s the custom of the place , that in such societies , there should be a plurality , or when it is agreed that the minor part should give place to , and is comprehended in the acts of the major part , or when the society hath been accustomed to act in such a way , not only the greater part , but even one or more of the partners may continue that way , which is still held to be the mind of the whole , unless the contrary be exprest ; and therefore it was found , where one of more partners in a ship had fraughted her to a dangerous voyage , without the others consent , yet was not found lyable for her value , being lost by accident , where no just objection could be made against the skippers skill , july . . john sim contra william abernethy . so letting out of lands , or setting out of houses , employing of moneys in a society , may be continued by one or more of the partners , and their actings with extraneous persons , in name of the society , do constitute the whole society debitor or creditor , or doth acquire to them , or dispone from them . it is also consistent with the nature of this contract , to give a negative vote to one or more of the society , whose interest in the stock , or whose skill and industry is esteemed the greatest ; but the simple nature of society it self is , the most tender ingadgement , and so if it be not otherways provided , it is always dissolveable at the option , and the choise of any of the society , and it implys that the management is in the whole partners equally , and that every one hath a negative vote ; and therefore , when it is contracted to a time , that it may not be parted from , in that case , the interest and end of the society is changed , and if the minor part will not cede to the major part , or to arbitriment , it must be decided by the judge ordinar , which of the parts is most conduceable to the society , but this being so great a retardment upon the management of the affairs of the society , it looseth the fraternity among the partners , and is sure to lose the pleasure and readily the profite of all : therefore the romans did upon good grounds annul and disown all pactions , whereby society did continue beyond the life and pleasure of any of the partners , except in few cases . . society is finished ; first , when the matter whereupon it is contracted is extinct . secondly , by the death or incapacity to act in the society of any of the partners ; for it being one individual contract of the whole , and not as many contracts as partners , it is like a sheaf of arrows bound together with one tye , out of which , if one be pulled , the rest will fall out , and the personal humor of the partners is so chosen , that it is not supposed to be communicate to their heirs or assigneys , unless by custom or paction the contrair be provided , which , no doubt is consistent with , though not consequent from the naure of society . thirdly , it is most consonant to the nature of society to be dissolved at the option and pleasure of any of the partners , it being very contrair thereto , and much impeding of the ends of it , that any should be continued a partner against his own will ; and therefore ordinarly , not only the express renunciation of the society , but any contracting or acting separatly in the matter of the society dissolveth it , yet propter bonam fidem , whatsoever is done with , or by the society , before the dissolution thereof be known , is valide ; but this dissolution at pleasure may be altered by custom , or consent of parties : and to sum up all , in society proportionable equality is essential and inseparable , and all the other specialities are congruous and convenient , and therefore understood , if by custom or consent it be not otherways ordered . . the same question is incident here , that before hath been touched concerning mandats , when one or more of the parties act in the matter of the society , whether thereby the whole society be oblieged by the obligations of these ? whether obligations made to these , constitute the society creditor ? or whether real rights acquired by these , are ipso facto , common to the society ? or if there be but an obligation upon the actors , to communicate , the property always remaining in the actors , till they effectually communicate , the resolution of this being the same with that in mandats , we refer it thither , and say only this in general , that when these parties only act in name of the society , and by its warrand express , or what they have been accustomed to do , in so far they are not only partners , but mandatars , and it hath the same effect , as if the society had acted it self ; but when they act not so , there doth only arise an obliegement upon the partners actors to communicate , in the mean time the property remaineth in them : and if transmitted to others before this communication , the society will be thereby excluded , but the actors will remain oblieged for reparation of the damnage and interest of the society ; and this will hold , though things be bought or acquired by the common money of the society : but all the natural interest , birth , fruit and profite of the society , is of it self and instantly common to the society . . partners are lyable each to other , for such diligence as men do ordinarly use , or the partners themselves use in their own affairs ; for this contract being undergone for the mutual good of either party , the diligence keepeth the middle way betwixt exact diligence and supine negligence , but none of them are lyable for what is lost by force or accident , without their fault . society hath as many divisions , as hath the various and multiform matter in which it may be contracted ; but that which is most noticed in law is , that some societies are common and general , whereby parties communicate all their goods , rights and interests , communicable ; others are particular of one or more of them ; upon the first there are many questions arising , as how far the partners may gift , or educat and provide their children , so that the rest are oblieged , or understood to concur : but such societies being altogether unaccustomed here , it shall be vain to debate the properties of them . . these be the several kinds of pactions and contracts ; there be other distinctions of them , not from their nature , but from their adjuncts or circumstancee , of which this is the chief , that contracts may be celebrate , either immediatly or mediatly by the interposition of other persons , as mandatars , or commissioners ; concerning which it hath been showen before , that as there is a contract betwixt the mandant and mandatar , so ofttimes there is a contract ingaged betwixt the mandant and a third party , who hath acted with the mandatar according to his warrand ; in which case ordinarly there is no contract or obliegement betwixt the mandatar and the third party ; as he who buyes land in name , and to the use of another by his warrand , the lands are acquired to him who gave the warrand , and he is oblieged to pay the price to the seller , but not his mandatar , so the seller is oblieged to deliver and warrand to him , and not to the mandatar . to all manner of promises and contracts , caution and oaths may be accessory ; with which therefore , it shall not be improper to sum up this title . caution or surety is the promise or contracts of any , not for himself , but for another ; and therefore , this being a gratuitous ingagement , having no equivalent cause onerous , as to the cautioner , it required a stipulation among the romans to make it effectual , though it was sometime by mandats or constitution ; but now every promise and paction , according to the law of nature , being effectual , it is valid without stipulation . . caution is interposed any way , by which the consent is truely given , and it may be either by mandat or commission , when the mandator giveth order or warrand to contract with any other party , to that parties behove ; for then that party is the principal debitor , and the mandator is cautioner , or it may be by taking on the debt of another freely . this cautioner in the law is called expromissor , but is more improperly a cautioner , seing himself is principal , having but an obligation of relief as mandatar , or negotiator : but the most proper and ordinary cautioner , is he who is oblieged with , and for the principal debitor , and is called , ad promissor , or fide jussor , because upon his faith or trust the creditor contracteth . these cautionary promises or contracts are of the same kind or nature with these , of which we have now spoken , yet have they something peculiar , which we shall shortly touch , which resolve in these questions ; first , whether cautioners are lyable and conveenable simply , or in so far as the principal debitor is not solvendo , or after discussing of him . secondly , whether cautioners are lyable , in solidum , or pro rata . . as to the first , the nature and intent of surety is , that the creditor may be secure of his debt ; and therefore cautioners are not ordinarly decerned till the creditor assign the debt , and all security they have for it from the principal , if they have not a distinct interest to retain the security , january . . lesly contra gilbert hay . july . . dam margaret hay contra crawford of kerse . . cautioners cannot be pursued till the principal debitor be discust , unless it be otherways contracted or provided by the custom or law of the place : it was cotrary by the ancient roman law , l. jure nov . c. de fidei juss . which was corrected by the authentick constitution , coll. . tit. . with us cautioners are frequently bound for , and with the principal , as full debitors , conjunctly and severally , and thereby , ex pacto , the question ceaseth : but otherways the cautioner is understood to be oblieged for the principal debitors performance , and so is lyable only subsidiarie after the principal is discust , and specially where the performance is a trust or deed , proper to the principal creditor ; thus cautioners for executors are only lyable after the executors are discust , at least by horning execute , june . . john sorogy contra constable of dundee . the like , though the executor was alledged to be bankrupt , july . . birsbane contra monteith . but a cautioner for an executor was discerned with him , superceding execution against the cautioner , till the executor were first discust , december . . dowglas contra lady ormistoun . and executors were not holden discust by horning , till poynding were essayed , and search made for his moveables , though none was condescended on , february . . arnot contra patrick abernethy . the like , that search behoved to be made , both for moveables and lands , and they appryzed , if any were ; and that horning and caption sufficed not , hope executors , robert stuart contra thomas fisher. but there is no necessity in that discussing to call the cautioners , december . . ruchead contra manderson . so the diligence for discussing must be according to the estate of the principal debitor ; if he have moveables , these must be poynded ; if lands , these must be appryzed ; if debts , they must be arrested and made forthcoming . . cautioners for curators are not lyable till they be discust ; yet they were decerned for constituting the debt , with this quality , that before execution against the cautioners , the curators should be discust in his person , goods and lands , november . . jean rollock contra corsbie . . cautioners for the factors in camphire to the burrows , found not 〈◊〉 till the factors were discust , july . . smith contra but cautioners for these factors were not found lyable for the goods sent to a factor , after he was known to the pursuer to be bankrupt , march . . richee contra paterson . cautioners in suspensions are only lyable after discuscussing the suspenders , and because by the tenor of their act or bond , they are bound to pay what shall be decerned against the suspender , if the decreet suspended be turned into a lybel , they are free ; or if the reason of suspension was relevant and instructed , though it were elided by an answer emergent after the suspension , spots . suspension john weir contra john bailie . and because of the tenor of the bond , and the unfavourableness of the matter , it was so strictly interpret , that if the suspender dyed before he were discust , the cautioner was free : yet by act of sederunt , anno , , all cautioners were declared lyable , though the suspender dyed , if the charge being transferred against his heir or executors , if the letters were found orderly proceeded , which is in use whensoever the creditor insists in the suspended decreet , and obtains sentence , in which the cautioners uses to be called . a cautioner in a suspension of a real action of poynding the ground , was not found lyable to pay the annualrent suspended , but to warrand it , february . . blackburn contra drysdail . a cautioner in a suspension was found lyable , though his bond of cautionry contained a clause of relief , which was not signed by the suspender , seing the bond did not obliege the principal and the cautioner to perform what should be decerned , but only the cautioner to perform , and the principal to relieve him , january . . george home contra mr. patrick home . in which case , it was only found necessary to discuss the suspender , and not the cautioner , in the first suspension , ibidem . . cautioners for loosing of arrestments , are not cautioners for those in whose hands arrestments are made , but for the debitor , whose goods or money are arrested in lieu of the arrestment , and yet they are no further lyable then in so far as was in the hand of the person against whom the arrestment was used , who therefore must be pursued before or with the cautioner , that it may be constitute , june . . lord balmerino contra lochinvar . and it may be constitute against the cautioners by the oath of these in whose hands arrestment was made , february . . inter eosdem . . cautioners are lyable according to the oath of the principal debitor , which is a sufficient probation against them , because their obligation being accessory , is lyable to the same probation with the principal , as is clear from the case last instanced ; but it is more dubious , whether the cautioners runs all other hazard with the principal debitor , wherein , though the cautioner of an executor was not admitted to propone exhausting , being proponed by the executor himself , and he failing therein , march . . wood contra executors of ker. yet it was found , that where exhausting was omitted by the executor , it was admitted for the cautioner , being instantly verified , july . . arnot contra executors of home and mastertoun . and likewise , though the principal intented reduction , and was holden as confest by his oath , de calumnia , yet that was found not to prejudge the cautioner , or to exclude him from insisting , in proving that same point , january . . carberry contra kello . whence we may conclude , that collusion or wilful omission , or negligence of the principal hindereth not the cautioner , but if the principal , proponing any reason of defence , used probation by witnesses , which was not found to prove the same , it would not be again admitted to be proven by the cautioner , with these or other witnesses ; and therefore , a cautioner was not secluded to prove a defence , wherein the principal succumbed , not being intimate to the cautioner , december . . earl of kinghorn contra earl wintoun . . cautioners as law will are liberat , if the cause be advocat upon incompetency . the like of cautioners judicio sisti , march . . because the caution was not warrantably taken being for a debt only assigned to a burgess by a stranger ; yet it will take place in other cases , where the citation was competent and warrantable if the inferiour judge do not put parties so arrested in ward . the like , 〈◊〉 . de saetisdando , william stuart contra archibald hutchison . for though advocation be obtained , the cautioner as law will must sist the principal , when he produces the advocation , who must then remain in ward as he was before caution was found , till the cause be 〈◊〉 , as was found , february . . contra hugh mcculloch . the like found , that a cautioner judicio sisti & judicatum solvi , was liberat by putting the party in prison , though not at the calling of the cause , july . . thomson contra 〈◊〉 . . cautioners may be accessory to obligations , though the principal 〈◊〉 be not lyable by any statute or custome , giving him a special priviledge , as minors , or wives cled with husbands , november , . shaw contra 〈◊〉 . but where the obligation is in it self null , and hath not so much as a natural obligation ; if the principal be free , the cautioner is also free , as if the principal did not at all , or did not validly subscribe , hope fide jussor . the like may be said of obligations by pupils , fools or furious persons , whose 〈◊〉 are free with themselves . but a cautioner was found lyable for the whole sum , though the principal party subscribed but by one notar , whereby he would be only lyably for an hundred pounds , july . . sophia johnstoun contra the laird of romano . and a cautioner was found lyable , though the debitor having received a disposition of moveables from the principal creditor in security of his sum , promised not to trouble his person or goods , reserving power to distress the cautioner , july . . leitch of monsie contra mr. andrew hedderwick . as to the other question , whether cautioners be lyable insolidum , unless they be expresly bound conjunctly and severally ? if they become cautioners at diverse times without relation one to the other , there is no doubt but as they oblieged themselves , so are they lyable all insolidum ; but when they obliege together , or with relation to one another , the nature of the deed importeth no more then surety ; so that each is lyable for what is wanting by the principal , and what is wanting by the other cautioners : but this holds even when parties are bound , not only as cautioners for , but as principals with the debitor , for then they are lyable only pro rata , unless they be bound conjunctly and severally , or when the matter of the obligation is an indivisible fact. cautioners ordinarily have no action against the principal debitor till they be distrest , unless the clause or band of relief bear , to free , relieve and skaithless keep them ; yet where an executour was becoming poor , the cautioner pursuing him to relieve him or find caution , was thought by the lords to have interest so to do , january . . adam thomson contra lewis moor. if a cautioner pay , without intimation to the principal debitor in due time before litiscontestation , it is on his peril , and the principal is not oblieged to relieve him , if he had a competent defence that would have excluded the debitor , decemb. . . maxwel of gribtoun contra earl of nithisdale . cautioners getting assignation from the creditor , whether they insist in the creditors name , or their own as his assigneys , are oblieged to allow their own part , july . . nisbet contra leslie ; in this cause there was a clause of mutual relief amongst the cautioners . co-principals bound conjunctly and severally , are mutually as cautioners for their shares , and are lyable to relieve other , though there were no express clause of relief , which hold also in cocautioners , though there were no clause of mutual relief amongst the cautioners , june . . wallace contra forbes . co-cautioners were found lyable for relief ex natura rei , without an express clause of relief , january . . monteeth contra rodger . cautioners having payed , if they seek their relief from the other cautioners , any ease they get on special favour to themselves , hinders not to obtain of the rest their full proportion ; but if they get ease by transaction , or upon account of question of the debt , they can ask no more then what they truly gave out , allowing their own share , as was found in a charge to the cautioners behove against the co-cautioner , july . . joseph brodie contra alexander keith : june . . monteith contra anderson . a cautioner in a suspension of a bond wherein there were five cautioners , being distrest , and having payed and obtained assignation from the creditor , was found to have access against the first four cautioners , allowing only his own fifth part , febr. . . arnold of barncaple against gordoun of holm . . as caution , so oaths are accessory to all promises , pactions and contracts ; not these declaratory oaths which are ordinary in the discussing of rights , whereby all persons are bound to declare the truth upon oath as witnesses , or as parties against themselves in civil causes ; but promissory oaths , whereby they promise to observe or fulfill any thing active , or passive never to quarrel it ; concerning which oaths , there is no small matter of debate among lawyers , what effect they have : all do agree , that in so far as any promise can be effectual , a promissory oath is valid , and hath this much of advantage , that the creditor is the more secure , because he may justly expect , the debitor will be more observant of his oath then of his ordinary paction , seing the penalty of the violation of an oath deserves a more attrocious judgement than any other , god being called as a witness and judge : which effect it hath , though adhibit to that which by the matter hath an anterior obligation ; as obligations betwixt husband and wife , parents and children , in these things in which they are mutually oblieged , or where there hath preceded or is conjoined an obligator contract , which of it self is binding without an oath . . all do also agree , that oaths interposed in things unlawful , not only as to the manner , but as to the matter , are not obligator ; so no man justifieth herod , for taking john baptists head without cause , upon pretence of his oath . . all do agree , that in matters free , and in our own power as contracts are obligator , so also are oaths . the question then remains , whether in acts civiliter inefficacious , the interposition of an oath can give efficacy ; or whether that which is done in debito modo , becomes valid by an oath to perform it , or not to impunge it , and if that efficacy will not only extend to the swearer , but to his heirs or successors . of this there are multitudes of cases and examples debated among civilians ; by the civil law , naked pactions are not efficacious to ground any action upon ; quaeritur , whether if the paction be with an oath , the creditor may not effectually pursue thereupon ? by law likewayes , the deeds of minors , having curators not consenting , are null ; but if the minor swear not to quarrel them quid juris , minors laesed have by law the benefit of restitution , but if they do the deed upon oath to perform it , or not to quarrel it , whether if they pursue to reduce it , will they be excluded by their oath ; or if a wife be oblieged personally for debt , and swear to perform it , or never to come in the contrair , whether yet she may defend her self with her priviledge ; or if a womans land given her for security of her tocher donatione propter nuptias , be sold by her husband with her consent , which the law declareth null , whether her oath interposed will validate it , or if pactum legis commissoriae in pignoribus , confirmed with an oath will be valid , or if an oath for performance will exclude the common exceptions of fear , force or fraud : and innumerable such cases , whereby positive law prohibiteth any act to be done , or declareth it void simply , or void if it be not done in such a manner , and with such solemnities . for clearing of these and the like cases , we are chiefly to consider , quae sunt partes judicis , or what is the judge his duty in deciding cases wherein oaths are interposed , rather than what concerns the parties , and the obligations upon their conscience by these oaths in foro poli ; and therefore , we shall take up the matter distinctly in these ensuing points . first , if an action be pursued upon a ground ineffectual in law , albeit the defender hath interposed an oath never to come in the contrair , yet that which would not be sustained by the judge , though the defender should not appear or object , which is ineffectual of it self , in that case the interposition of an oath hath no effect : as if by the civil law , an action were intented upon a promise or a naked paction , with an oath interposed , the action would not be sustained , albeit the defender should not appear , or appearing should not object , that it were a naked paction . or , if a declarator should be intented , to declare pactum legis commissoriae in pignoribus to be valid and effectual , though it were lybelled , that the other party did swear never to come in the contrair , yet the judge could not sustain such an action , nor generally can sustain any action which is unjust or irrelevant , albeit it should not be opposed , but consented to simply , or with an oath never to quarrel it , because in such cases , pactis privatorum non derogatur juri communi . the consent or oath of no party can make that just which is unjust , nor can make that sufficient or effectual , that is deficient in its essentials ; as if any party should grant a disposition of lands or annual-rents , and declare , that it should be effectual for poinding the ground without infeftment , and should swear never to come in the contrair thereof , if thereupon the obtainer should pursue poinding of the ground , the same could not be sustained , because these rights are defective in their essentials , wanting infeftment ; and yet in these cases , if the party should object , or any way hinder the effect of their oath , they contraveen the same : but the judge not sustaining the same , doth no wrong , because his not sustaining proceeds upon a defect of an essential requisite , and not because of any exception or objection of the party : from this ground it is , that if a wife be pursued or charged upon a bond for debt subscribed by her , bearing expresly her to be designed a wife , though it were condescended on that she made faith never to come in the contrair ; the lords would not sustain the pursute or charge , because by the very action it self it appeareth , that the summonds or charges are irrelevant , and contrair to law , which declareth a wifes bond for debt ipso jure null ; and therefore , though she may be faulty in suspending , or hindering the performance of the ingagement of her oath , the lords do justly reject such an irrelevant libel or charge , as they did in the case betwixt and catharine douglas , feb. . . where her band was suspended simpliciter , as being expresly granted by a wife , though she judicially made faith never to come in the contrair : or if the husband should suspend and alledge , that such an obligation or oath could not be effectual against his goods , or the person of his wife in his prejudice , there could be neither wrong on his part , nor on the judges part . . if either action or exception be founded upon that which is not defective in essentials , but in circumstantials , ordained and commanded by law , the defect thereof may be supplied by the other parties consent , much more by their oath ; and in that case , quae fieri non debent facta valent : for every prohibition of law doth not anull the deed done contrair thereto , but infers the penalty of law upon the doer , as tacks of teinds are prohibit to be set by prelates for longer then nineteen years , parl. . cap. . yet it was found , that a tack granted for a longer time was not thereby null , novemb. . . mr. thomas hope contra the minister of craighall : so likewayes , members of the colledge of justice are prohibite to buy pleas ; yet the right acquired thereto was not found null , or process refused thereupon , but that it might be a ground of deprivation , june . . adam cunningham advocat contra maxwel of drumcoultroun . in like manner , the solemnities of marriages are prescribed in law , and all prohibit to proceed any other way ; so they are appointed to be publickly solemnized by a minister , and the consent of paretns are required ; yet the want of these will not anull the marriage , because it is a divine obligation which cannot receive its essentials from positive law or statute : whence it is justly said , mult a impediunt matrimonium contrahendum que non dirimunt contractum . it is not therefore the prohibition of law that anulleth an act , but the law must expresly anull it , or at least declare such points as the essential requisites to such deeds or rights : some deeds are declared null ipso jure , and others are only anullable ope exceptionis , or by way of restitution , or at least where something in fact must be alledged and proven ; which doth not appear by the right or deed it self , and so belongeth not to the judge to advert to , but must be proponed by the party : in these an oath interposed doth debar the swearer from proposing or making use of such exceptions and allegiances ; and therefore , neither may the party justly propone the same , nor the judge justly sustain the same , for there be many things of themselves relevant and competent in law , which yet may be excluded by a personal objection , against the proponer ; for in many cases , allegeances competent to parties may be renounced , so that though they be relevant , that personal objection will exclude the proponer , but his oath is much stronger then his renunciation ; and therefore , seing such points are not partes judicis , nor consistent in any intrinsick nullity or defect , though the law allow or prescribe them , yet it doth not mention or express , that though the party in whose favours they are introduced renunce them simply , or with an oath , that these shall be admitted ; and therefore , they are justly to be repelled , being in detrimentum animae , of the proponer . this ground solveth most of the cases before proponed ; for if a minor pursue restitution upon minority and laesion , his oath to perform , or not to quarrel the deed in question , excludes him , both by the civil law and our custome , by the authentick sacramenta puberum spontefacta , super contractibus rerum suarum non retractandis , inviolabiliter custodiantur , c. si adversus vend . it was so decided in an obliegement by a minor , to quite twenty chalders of victual , provided in his contract of marriage , january . . sir robert hepburn contra sir john seatoun , where it was found that the oath was valide , though not judicial . the like was found , that a minor having given a bond for his fathers debt , whom he represented not , and being sworn not to come in the contrair , the same was not reduced upon minority and laesion , february . . mr. george waugh contra bailzie of dunraget . upon this same ground , a minor having curators not consenting , swearing to perform his obligation , or never to come in the contrair , his exception of its being null , because it consists in fact , and must be proven that he was minor , and that he had curators , may justly be repelled , and he excluded from proponing thereof , in respect of his oath , seing it is not the part of the judge to know or advert thereto ; but his curators who have not sworn may , yea , must propone that nullity , because they have not sworn . on this ground likeways , the exception or reason of reduction upon force or fear is excluded , if the party have sworn to perform , or not quarrel the deed , which is the sentence of the canon law , not only as to wifes consent , to the alienation of lands given to them , donatione propter nuptias , which is both null , and presumed to be granted upon her fear or reverence of her husband , c. licet mulieris , l. . de jure jurando c. cum continget de jure jurando , whereby such consents and oaths , being interposed , are declared to be valide ; but generally , that no deed having an oath interposed , can be recalled upon an alledgeance of force and fear , c. , & . de iis quae vim metumve ; albeit the pope assumes to himself liberty to absolve from such oaths as are done upon fear , yet they are declared of themselves to be valide , which our custome followeth , and was so decided , parl. . cap. . and was so decided by the lords , july . . agnes grant contra balvaird , where a wife was excluded from the reduction of the alienation of her liferent lands , super vi & metu , because she had judicially ratified the same , and sworn never to come in the contrair ; neither was it respected , that the oath as well as the disposition was by force and fear , this is the great foundation of all publick transactions betwixt different parties and nations , where ofttimes the one party is induced through fear , to that which otherways they would not yeeld to ; and yet both parties acquiesce in the religion of an oath interposed : so the oath of israel to the king of babylon was binding upon them , though thereby the people of god subjected themselves to a heathen king ; and therefore they are accused by jeremiah for breach thereof , and likewise for breaking the oath to their servants , whom they manumitted upon meer necessity , for their defence . from this reason it is , that the exception or reason of reduction upon deception , fraud or circumvention is excluded , if an oath be interposed , whereof we have the most eminent example , of the oath of the people of israel to the gibeonites , who purposely deceived and circumveened them , feigning themselves to be a people far off , though they were of the hivites , whom israel was commanded utterly to destroy ; against which judicial precept , they being induced through error and deceit to swear , the oath was binding on them and their posterity , and was punished upon saul for breach thereof . from this instance we have occasion to return to the last case , whether oaths be only personal oblieging the swearer , and so inherent to their persons that they bind not their heirs , wherein some are for the affirmative , that even heirs are oblieged , as being fictione juris eadem persona cum defuncto , which is also fortified by the punishment in the successors of israel , in the days of saul ; but i rather incline to the negative , that heirs are not oblieged , but only the persons who swear , which is the more common opinion of lawers , civilians , and canonist's ; nor doth the instance infer the contrary , because oaths by societies and incorporations , continue not as to their heirs , but because the society dieth not , and is ever the same , especially in contracts betwixt nations , where the parties intend not to obliege particular persons , then living , but the nation ; neither doth the fiction of law operate in this case ; for no position or fiction of law can either extend or abriege the obligation of an oath , which is alterius & superioris juris . there remains yet this objection , that if oaths be so effectual , great inconveniencies will follow , a door being opened to force and fraud , for the same facility that parties are induced to act , they will be induced to confirm it by an oath . it is answered , in commodum non solvit argumentum ; which therefore was not regarded in the case of agnes grant contra balvaird , but there may be a remeid by severe punishment upon parties , who shall induce others to swear to their own hurt , which the prince may inflict , and repair the damnage of the laesed ; it is true , if the fear be such as stupifieth , and takes away the act of reason , there is nothing done , because there can no contract in its substantials consist without the knowledge and reason of the party ; or if the deceit be in substantialibus , as if a man should by mistake marry one woman for another , there is nothing done , but when an act of reason is exercised : but upon motives by fear , error , or mistake , the deed is in it self valid , but annullable by the fear or fraud , which are excluded by the oath , against which they cannot be alledged by the party who hath sworn , but may be proponed by his heirs , executors , or cautioners , or any other having interest . having now spoken of the several kinds of obligations , before we go over to real rights , it is fit to touch the common considerations that fall into all or most obligations , as to the implement or performance thereof , viz. delay , interest , profite , time , place , and manner of performance . . delay or mora , is not that time , which by the adjection of a day or condition , or by law is allowed to perform , but that time which runs after lawful delay is past , and is the debitors fault , in not performing his obligation , so that it seldom makes any part of the contract , whereupon the obligation ariseth , except penalties be adjected in case of delay , or an estimation made of the interest . delay is incurred in pure obligation by interpellation or requisition , for when no term is prefixed , the option of the debitor is the time of performance , and though requisition be most clear and secure by instrument of a nottar ; and therefore , verbal requisition by a merchant to a skipper , to loose after the ship was loadened , was not found sufficient without an instrument , where the charter party had no definite term , but to do diligence to transport the fraught , february . . david calderwood contra james angus : yet in some cases that is not necessar , but being only emission of words , it will only be probable by the debitors oath or write . in obligations to a day , delay is incurred by the passing of the term , nam dies interpellat pro homine . in obligations conditional , delay connot be till the condition be purified , and even then , either requisition or a term is requisite , for it is frequent in obligations conditional to add a term also , so that the existence of the condition makes the conditional obligation to become pure , and so requisition is to be used before delay , if no term be exprest ; but if there be no party who can require or be required , delay is incurred , if performance be not made so soon as it can be , as is in the case of the restitution of things found , or come in the hands of others without contract , which is seldom known to the owner . so also in obligations due to pupils , delay is incurred without requisition , l. . § . ult . de ujuris . and in obligations by delinquence , delay is without requisition , and runneth from the first time performance can be made . till delay , legal execution is not competent ordinarly , because none should be pursued till he have failed : yet in some cases the debitor may be pursued before the term , to pay at the term , as si vergat adinopiam : yea , in removing it seems very expedient , to pursue the party warned , even before the term , to remove at the term , otherways the lands cannot be safely set , the tennent not knowing if others will remove willingly , and may not be uncertain in that point , which is a publick interest , for setting land , and preventing wast ; but upon all obligations which are truely contracted , the legal diligences of arrestment or inhibition may be used even before requisition , or the term of performance . the ordinar effect of delay is , that when the obligation is to give or deliver any thing , if it perish , even without the debitors fault , it perisheth to the debitor , and must be made good to the creditor , unless it appear that it would have so perished with the creditor , which seldom can be made appear , because it is ordinarly presumed , that if the thing had been delivered , the creditor would have disposed of it , and so been free of the hazard , especially if it be a thing for sale , not for keeping , and if an occasion was offered , to have disposed thereof . . the next effect of delay , is the interest or damnage of the creditor ; for if the obligation be performed within the due time , and in due manner , there is no interest ; if not , after the delay incurred by requisition or term , it is in the creditors option to pursue for performance or for damnage and interest . but in some cases delay may be purged , which is much in arbitrio judicis , and is always granted in things penal , where the penalty is great and exceeds the true interest , as in non-payment of few duties , which infers loss of the few . and in clauses irritant , in wodsets . when delay is purged , the hazard returns upon the creditor , and the debitor is free , if the thing to be delivered perish ; but if the creditor do again ! equire , after the former delay is purged ; delay is again incurred by that new requisition . this is a general rule , 〈◊〉 factiimprestabilis subit damnum & interesse , yet in some cases if the delay be wilful or fraudulent , that the thing might become imprestable , all personal execution by escheat , and caption will proceed . interest may either be competent for the whole obligation , as when it is imprestable , or when any part or qualification is unperformed , or the value thereof . interest doth both comprehend damnum emergens & lucrum cessans . the first is commonly competent , the last but in some cases , and that ordinarly for such gain as the creditors used to make ; and so the delay of bills of exchange , gives exchange and re-exchange , as the creditors condition requires , but would give neither , when not drawn for the use of a merchant , or him that behoved to obtain the sum for a merchant , for present use . in ejections , spuilzies , and other attrocious delinquences , the greatest profits that might have been made , are allowed as the creditors interest . in obligations which are not in dando , but in faciendo , the common opinion of the doctors is , that there can be no pursuit for performance , but only for interest ; for before the delay there is no pursuite , and after , the debitor cannot pursue for performance but for interest , l. . in fine ff . de re judicata ; but it seems more suitable to equity , that it should be in the debitors option , even after the delay , either to sute for performance or interest , as he pleaseth , if both be prestable . in obligations in dando , where there is delay incurred , it will not be purged by offering performance , especially , if the thing have a certain definite season of its use , as grain of such a year , if it be not delivered , debito tempore , the delay will not be purged by offering it after , but the price comes in place of it . in interests , the value thereof may either be that which is agreed by parties , which , if high and penal , may be modified , or ordinarly the common rate , and sometimes pretium affectionis , in these cases where the creditor hath juramentum in litem , the value was estimate by the romans , in bonae fidei 〈◊〉 , as at the time of sentence , in stricti juris , as it was worth the time of litiscontestation , this distinction is not now of much use with us ; and therefore , it is rather in the arbitriment of the judge , to ponder all circumstances , and accordingly modifie the value , either as at the time of delay , at citation , litiscontestation , or sentence . . profits which comprehends fruits , is a part of the creditors interest in sale , for by the special nature of that contract all accessions and fruits belong to the buyer , from the time of the sale , and so it it a part of that contract ; but in other contracts it is only due , post moram , and is no part of the contract . the sentence of the roman law is in this , as in the estimation for in actionibus bonae fidei , and arbitrary , fruits and profits become due from delay , which also take place in legacies ; but in these which are fructi juris , if the obligation be to deliver that which was the creditors before , the fruits and profit follow the property , and are due from delay ; but where the property was not the creditors , the fruits are not due till litiscontestation , l. . & l. . & l. . ff . de usuris . . the time of performing obligations , is at , or before the term , in obligation to a day so soon as requisition is made , which cannot be understood in that instant , if the thing require more time to perform it ; but such time is allowed , that by ordinar diligence it may be performed so , that delay is not understood till that be past , as when a party is oblieged to do a work , he must have so much time as the work requires ; or if money be required , if the debitor offer within twenty four hours , it would not infer delay , for it is not his part to carry a sum of money about him , nor to have it ready each instant , and pasiing an instant , the strickest time law respecteth , is an artificial day or twenty four hours , if the debitor offer before the day the creditor cannot refuse it , seing the day is in favour of the debitor , and so may be renounced by him , if a term be exprest there needs no requisition , nam dies interpellat pro homine . . the place for performing obligations , if it be exprest , is to be observed , and another place cannot be obtruded , though it may seem as convenient for the creditor , unless there be not safe access to that place , in which case , the debitor may offer , and the creditor may pursue as if no place were named ; in which case he hath the choise to pursue either in the place of the contract , if he find the debitor there , or where ever the debitor is conveenable , and even where the place is exprest , the creditor may else where pursue for performance , if he allow the debitors damnage , in not paying at the place appointed ; but if the thing to be performed be delivery of a certain species or body , which cannot follow a man as a horse or a dog , but an inanimat body , as a coatch , coffer , cabin , or the like , if no place be exprest , the place where it is must be understood , but if it be a quantity , simply the place of contract , or where the debitor resides , is understood , for the debitor is not presumed to follow the creditors residence , if custom or paction be not contrair . . as to the manner of performing obligations , the main question is , when there are correi credendi , or debendi , whither performance must be by all , in solidum , or but pro rata ? for eviting the question , debitors use to be bound conjunctly and severally , but when that is omitted , the debitors are understood to be but bound conjunctly , & pro rata , for in dubiis potior est conditio debitoris , if the debitors were bound by several obligations , not relating to others as becoming parts of the same obligation , all are bound severally and in solidum ; but when they are bound together in one bond , and so correi debendi : by the ancient roman law , they were all lyable , in solidum , which was altered by justinians novel constitution , giving the benefit of division , pro rata , as to these who are solvent and not far absent , which as more equitable and favourable is followed , unless the matter of the obligation be indivisible , as the delivery of a man , a horse , or any thing which the law considers not as quantity or genus , but as corpus ; for ofttimes that cannot be devided without destruction of the thing , and always it s the creditors interest that it should not be devided . secondly . obligations in suciendo , are ordinarly indivisible , l. stipul . ff . de verborum oblig . as was lately found in an obligation by two owners of a ship , to carry corns from one port to another , both were found lyable in solidum ; or if the obligation be , in non faciendo , that such a thing shall not be done , but that they shall hinder , each is oblieged in solidum , june . . sutherland and grant contra flut. this also concerns the manner of performance , that in alternatives , electio est debitoris , whose part is more favourable , but the adjection of a penalty or estimation makes not the obligation alternative : but if any of the members of the alternative , become not intire the debitor connot offer that member , january . . collector of the king and lords taxation contra inglis of straitoun . the manner also of performance admitts not that the debitor may perform by parts that which he is oblieged to by on obligation , if it be not that which cannot be performed all at once , as the performance of some acts , requiring divers seasons , but otherways it must be done without intermission , for neither can money or grain be delivered at one instant ; but that is understood to be performed together , which is without intermission ; yet the civil law favours the debitor so far , that the creditor cannot refuse to accept a part of the money due . title xi . liberation from obligations . . obligations cease by contrary consent , by discharge , declaration , renunciation , or per pactum de non pentendo . . three subsequent discharges liberat from preceedings . . payment made , bona fide . . consignation ; . acceptilation ; . compensation ; . retention ; . innovation ; . confusion . having thus run thorow the constitution and effects of conventional obligations , it is requisite in the next place , to consider their destitution and how they cease , which we have exprest in the general term of liberation , comprehending not only payment , but all the ways by which obligations , or bonds are dissolved or loosed , and debitors liberat ; we are not here to speak of the objections competent against obligations from their nullities , for such were never truly obligations ; neither of the common exceptions against them , and other rights , as prescription , litiscontestation , res judicata , circumvention , extortion , &c. of which in their proper places : but only of the proper ways of taking away obligations ; and these are either by contrair consent , or by performance , or the equivalent thereof . . first , as consent constituteth , so contrary consent destituteth any obligation , whether it be by declaration , renunciation , discharge . or per pactum de non petendo , which may be extended , not only to conventional , but to natural obligations , as to any duty omitted or transgressed , which is past , though not to the discharge of the obligation it self , as to the future , for love to god or our neighbour , and most of the duties betwixt husbands and wives , parents and children , cannot be discharged as to the future ; neither can future fraud or force be effectually discharged , for such , cadunt in turpem causam ; if the write be special and express , there can be no question when it concerns a personal right , and is given by the party having power to discharge ; and therefore , a discharge of a clause in a bond , constituting an annualrent , whereupon infeftment followed , for a sum lent by a father , and taken to his son in fee , and bearing , with power to the father during his life to dispone , was found valid , and that it required not registration , as a discharge of reversion , january . . mary bruce contra patrick hepburn . but a discharge of an annuity , belonging to an office by infeftment , containing a renunciation of that annuity , was not found relevant against an appryzer , december . . lord hattoun contra the town of dundee . neither did a discharge of a sum , payable to a man and his wife , and the bairns of the marriage , subscribed only by the husband , exclude the wife from her liferent right to that sum , january . . isobel caddel contra john raith . neither was a discharge to a cautioner , upon payment found competent to the principal debitor , unless the cautioner concur , for the principal may be distressed by the cautioner , using the name of the creditor as his cedent , july . . margaret scrimzour contra the earl of southesk . a discharge to one or more debitors , viz. con-tutors found not to liberat the rest , except in so far as satisfaction was made ; or as the other con-tutors would be excluded from relief by the party discharged , december . . seatoun contra seatoun . but payment made by one party , whose lands were affected by inhibition , did liberat the rest , pro tanto , though it bore not in satisfaction , but to restrict the inhibition , january . . ballantine contra edgar . but discharges by masters to tennents for rent , by their subscription , without witnesses , and not being holograph , are sustained , in regard of the custom so to discharge , november . . john boyd contra story . and by the same custom , receipts and discharges of merchants and factors , in re mercatoria , are sufficient by the parties subscription , albeit neither holograph , nor with witches . but the main question is , how far general discharges are to be extended , which are of two sorts ; one where there are particulars discharged with a general clause , and then the general is not extended to matters of greater importance then the greatest of the particulars , february . . lawson contra ark inglas . the other is , where the discharge is only general without particulars , which useth not to be extended to clauses of warandice , clauses of relief , or obliegements to infeft , or to purchase real rights ; and therefore , a discharge of all debts , sums of money , bonds , obligations , clags , claims , for whatsoever cause , was found not to discharge a contract for purchasing an appryzing of lands , and disponing the same november . . beatrix dalgarn contra the laird of tolquhon . neither was a discharge wholly general , extended to an obligation by the party discharged as cautioner , unless it were proven that the discharge was granted upon satisfaction of that debt , hope , bonds , ogilbie contra napier . but it was extended to contravention , though there was a decreet after the discharge , hope contravention , laird of aitoun contra his brother . yea , a general discharge in a decreet arbitral , was found to liberat the submitters cautioner , hope , bonds , lady balmastiner and her son contra alexander 〈◊〉 . neither was a general discharge , found to extend to a sum assigned by the discharger before the discharge , albeit the assignation was not intimat , seing the discharger was not presumed to know the want of the intimation , unless it were proven that the sum was particularly commoned upon , or satisfied at obtaining the general discharge , february . . blair of bagillo contra blair of denhead . neither was a general discharge extended to sums , whereuto the discharger succeeded after the discharge , february . . halyburtoun contra huntar . . three subsequent discharges , do presume that all preceedings are past from ; as first , the discharges of three immediat subsequent years rent , june . . nowison contra hamiltoun . this was sustained , though the discharges were only granted by a chamberlain , hope , clause irritant , laird of wedderburn contra john nisbit , this was sustained to purge a clause irritant ; yea , though some of the discharges were granted by the father , and the rest by the son as heir , february . . williamson contra the laird of bagillo , which was extended to by gones , though a bond was granted for them , the bond bearing expresly for a term , and having lain over very long , and all subsequent terms payed , march . . dowglas contra bothwel . but discharges of three subsequent years , granted by merchants , who had bought ferms , did not liberat from former years , march . . minister of corstorphen contra neither where the discharges were not in write , february . . moristoun contra tennents of eastnisbit . neither where the payment of three terms , was acknowledged by the parties oath , which bore not three terms immediatly subsequent , march . . kennedy contra dalrymple of stair . nor where there were two years discharges and receipts , making up the third , march . . laird of 〈◊〉 contra wood ; and therefore , receipts , though being joyned , they would make up more then three years ; inferr not this presumption , that all preceeding years are payed , yea , one discharge for three consequent terms or years , would not infer the same ; for the presumption is mainly inferred from the reiteration of the discharges without reservation , which no prudent man is presumed to do ; the presumption is also introduced in favours of debitors , that they be not oblieged to preserve fourty years discharges ; and therefore , if the payment be annual , there must be three discharges , of three years immediatly following one another , as in the payment of ferms ; but if the payment be termly , as in annualrents , or silver rents , the ground of the presumption holds by three several discharges , of three immediate subsequent terms , hope , bonds , david weyms contra the lady st. colmb . but as to the discharges of factors or chamberlains , three subsequent discharges are sufficient against the chamberlain , during his commission , and against his constituent , who gave him power to discharge , during that commission : but the presumptions from discharges of the chamberlains will not always hold , as if the former chamberlain discharge two terms , and the later one ; much more , if the former discharge one term , and the later two ; but if there be three consequent discharges from two immediat chamberlains , though they will not infer presumptionem juris , which the law hath acknowledged ; yet they may infer presumptionem judicis : but the strongest of these presumptions admits of contrary probation by the debitor , that he knows there are preceeding rents , which his write will not prove , though he should acknowledge in write , so much resting at such a time ; for three subsequent discharges thereafter , will presume that rest payed , though still his oath may prove it is not payed ; so that the strongest of these presumptions , though they be presumptiones juris , yet they are not presumptiones juris & de jure , which admit of no contrary probation . the more proper way of dissolving obligations is by performance , by which they attain their effect , and that is either by payment , or consignation ; the more improper ways are acceptilation , compensation , innovation , confusion ; of which in order . . payment is the most proper lousing of obligations , and therefore retaineth the common name of solution ; and therefore , in many cases payment made , bona fide , dissolveth the obligation , though he to whom it was made , had no right for the time . so payment made to a procurator , was thought sufficient , albeit the procuratory were thereafter improven , seing there was no visible ground of suspition of the falshood of it , february . . elphingstoun of selms contra lord rollo , and laird of niddery . and payment made by hererors to their ministers , who were suffered to continue to preach , was sustained , though they had not obtained presentation , or collation , conform to the act of parliament , . seing no process civil or ecclesiastical , was intented against them , nor the heretors before payment , february . . collector of the vacand stipends contra heretors of maybole and girvan . and payment made to a minister , though he was deposed , having continued to preach after the term , before intimation of the deposition , was sustained , but not for terms after the intimation , february . . colledge of aberdene contra earl of aboyn . so also payment made by a debitor to his creditor , bona fide , was found sufficient to liberat , against an appryzer , who had appryzed the right of that sum , before payment made , albeit the appryzing , as a judicial assignation , was sound to need no intimation , as was found in the case of thomson contra elizabeth dowglas lady longsormacus . and payment made , bona fide , to a donatar , was found relevant against a prior donatar , hope , horning , james wright contra thomas wright . and most ordinarly payment made , bona fide , by tennents to their old master , is found relevant against singular successors , though publickly infeft , using no diligence to put the tennents in mala fide , spots . appryzing , lord lowdoun contra the tennents of jedburgh . and payment by tennents to their master , was sustained against the donatar of his escheat , not having obtained declarator , february . . blackburn contra wilson . neither will citations against tennents , or arrestments upon the titles of singular successors , put them in mala fide , to pay to their master , till the titles of the singular successors be judicially produced against the tennents compearing , because tennents are not oblieged , as purchasers to search registers to find their masters rights , or the rights of singular successors ; yea , the arrestments of their masters rents not insisted upon , and their masters debts instructed before the term , seem not to infer double payment , against the tennents , paying after their terms are past : but payment made before the hand doth not liberat , against donatars arresting and doing diligence after payment before the term , february last . laird of lauchop contra tennents of cleghorn . february . . lady traquair contra marion houatson . but it will not be accompted payment before the hand , if by the condition of the tack , the first terms payment be made at the entry , and the tennents to be free at the ish , january . . earl of lauderdail contra tennents of swintoun . neither will a discharge freely granted , without true and real payment , besufficient , though it bear payment , to obtain the priviledge of payment , bona fide , as was found in the foresaid case , thomson contra dowglas . payment made by tennents , bona fide , to their master of stock and teind promiscue , as they had been accustomed , found to liberat from their teind master , who had inhibite and intimate the same to the tennents , seing the proportion of the duty they payed for teind was not known , december . . arbuthnet contra tennents . march . . mr. patrick murray contra tennents of inchassray abbay . yea , payment made of a part of the price of lands to the disponers bairns , to whom it was destinat , was found relevant , albeit after a reduction , depending of that disposition , seing there was no reason filled up against the bairns interest , nor they cited , july . . peter contra mr. william wallace . payment of a tocher , contracted by a wife , inferred by presumption , that the lived twenty two years , and that the husband acknowledged in his testament that she had payed the tocher , february . . marrion dods contra laurence scot. payment is always presumed by retiring of the principal bonds , chyrographum apud debitorem repertum presumitur solutum ; and therefore , missives or narratives in other writes , will not instruct , where the principal write it self is not produced ; and therefore is held as retired , albeit these are adminicles to prove the tenor , if the casus amissionis , be so far instructed , as to take off the presumption , that the write is retired . payment made indefinitly by a debitor for several sums , is generally ascribed to any of these sums , that the debitor pleaseth to apply , because the case of the debitor is favourable , and the creditor granting a receipt indefinitly , it is interpret against him , the matter remaining intire as it was the time of the receipt ; but where the debitor became bankrupt after the indefinit receipt , the famine was not found applicable to a sum having caution , there being another sum which had no caution , which would be lost by that application , february . . samuel moncref contra donald cameron . but where the debitor makes no application , but his creditor or singular successor do count for the application , presumitur in duriorem sortem , as if for one debt there be a band bearing annualrent , and another debt bearing no annualrent , the indefinit receipt is to be imputed to the bond bearing annualrent , or where the one security hath a greater penalty , legal or conventional , in case of not payment , as apprysing , or adjudication , whereof the legal is near to expire . . consignation in case of the absence , lurking , or refusal of the creditor , is equivalent to payment , and where it is not otherways agreed ( with us ) it is ordinarly done in the hands of the clerk of the bills , by way of suspension , and it stops the running of annuals , and all other inconveniencies upon the debitor , and the consigner is free , though that which is consigned be lost by the keepers being bankrupt ; or otherways , if it was the creditors fault who charged for more then was due , as if he charged for the whole penalty , which ought to be modified , and there is no necessity in that case , to offer what is due ; but if the fault be the consigners , if the money be lost , it is lost to him , as was found in the case of the earl of galloway and 〈◊〉 of kilkerran . it was also found , that a sum comsigned in the hands of the clerk of the bills , upon obtaining suspension , the consigner having first offered by instrument the principal sum and annualrent , and so much of the penalty as the charger would depone he had truly debursed upon oath , the instrument being also instructed by the oath of the witnesses insert , the consigner was declared free , though the then clerk of the bills was become insolvent , july . . bessie scot contra somervail . so that in consignation of sums , for which there is a charge of horning , if the charge be for more then what is due , consignation may be warrantably made , without offer of what is due ; but other waye , the offer of what is due should proceed , else the peril is the consigners , if the sum consigned be lost ; but if when the consignation is authore pretore , either by deliverance of the lords , or by the ordinar passing bills of suspension upon consignation , it stops the course of annuals ; because there is always a several reason of suspension , which ought to be relevant , though consignation would make it pass without instruction ; for then , consignation is only for the creditors security in place of caution , and seing the creditor may quickly discuss the suspension , and will be heard to answer summarly upon the bill , albeit at discussing the reason be not found relevant , or not instructed . annuals is not decerned after the consignation , being modica mora , yet if the sum were lost , the peril would be the consigners , not having first offered all that was due , by instrument ; and though the creditor be uncertain , lurking , or out of the countrey , the lords upon supplication will grant letters of requisition and offer , to be execute at the cross of edinburgh , and peer of leith , where all men are presumed to have procurators to answer for them , tanquam in communipatria : but if an offer be made of all that is due , and not accepted , it is a relevant reason of suspension , upon production of the instrument , and consigning the principal and annual , though no part of the expenses be consigned , till they be modified , if the consigners reason be found relevant , and instructed , the charge will be suspended simpliciter , and the decreet will contain warrand to the clerk of the bills , to deliver up the consigned sums to the suspender , who must bear the expenses of consignation ; but if the suspender be in mora aut culpa , as if he do not consign the expenses modified by the lords , whereby the charger will be put to a new charge , he must bear the expenses of consignation ; yet a sheriff having charged an heritor for the kings taxation , albeit at discussing , it was found he had charged for more then was due , the expenses of the consignation was laid upon the heretor , seing he did not offer what was due , for in that case the sheriff might proceed by general letters , as he was informed , and was not in the case of a creditor , charging for his own debt , which he could not but distinctly know : but if an assignay or singular successor charge for more then is due , the hazard will not be his , who may be ignorant of his cedents discharges ; and therefore , the suspender ought to produce to him the discharge , and offer to him what is due , which if he omit , the hazard will be his : as to the obliegements upon the consignatar , these shall more properly come in with redemption of wodsetts , where consignations are most frequent . . acceptilation is the solution of an obligation by acceptance of that which is not the direct performance of the obligation , in satisfaction thereof , either really , or imaginarly , by acknowledgement thereof , as if it were truely performed . the romans did only allow acceptilation as a liberation from stipulations , and therefore , before any other obligation could be dissolved by acceptilation , it behoved to be innovat , by a stipulation ingaging for the same matter and the acceptilation it self could only be by stipulation , by the interrogation of the debitor , quod ex tali stipulatione debeo acceptum fers . to which the creditor answered , acceptum fero , whence it had the name of acceptilatio , expressing an acknowledgement of the receiving and accepting of the performance of the obligation , and of present bearing and having the same , which was valid and effectual , though the creditor , neither then nor before had received any performance of the obligation , and needed no other probation ; nor doth it admit of a contrary probation , that nothing was truely received , in respect that the sole will of the creditor may evacuat the obligation , by discharge or renunciation ; and therefore , acceptilation without any performance is sufficient , and is the more solemn and secure way of exoneration . for where there are many co-debitors , the discharging one liberats not the rest , if they be co-principles , unless the discharge be impersonally conceived , that the thing oblieged shall not be demanded ; or that the renunciation or discharge be granted to the principal debitor , for thereby the obligations of the cautioners being accessory , are understood also to be renunced : but acceptilation extinguisheth the obligation as to all the debitors ; because it importeth an acknowledgement of performance . acceptilation with us may be of any obligation , and requireth no stipulation , but as the acknowledgement of payment liberats all the debitors ; so the acknowledgement of any satisfaction , which importeth payment , or any thing accepted as equivalent , hath the same effect ; and therefore , we use more the term of satisfaction , then acceptilation ; which satisfaction , if it be upon grounds equivalent to payment , or direct performance , it is equiparat thereto in all points , and hath the priviledge of payment made , bona fide , to liberat , though the obligation be not performed , to the party having the present , and better right ; but otherways , neither the acknowledgement of payment , or of satisfaction , or any discharge , hath the priviledge of payment made , bona fide , which is mainly founded upon this ground , that bena fides non patitur ut idem bis exigatur . . compensation is a kind of liberation , as being equivalent to payment , for thereby two liquid obligations do extinguish each other , ipso jure , and not only ope exceptionis ; for albeit compensation cannot operat if it be not proponed , as neither can payment ; yet both perimunt obligationem ipso jure , and therefore are not arbitrary , to either party to propone or not propone as they please ; but any third party having interest may propone the same , which they cannot hinder ; for instance , if a cautioner be distrest , he can propone payment , or compensation , upon the like liquid debt , due to the principal debitor , which he cannot hinder ; and therefore , a liquid clear debt , though bearing no annualrent , compenseth another debt bearing annualrent , not only from the time compensation is proponed , but from the time that both debts came to be due ; from which time , it stops the course of annualrent , as is clear by many laws in the digeste & c. de compensationibus , which is constantly followed by our custome , wherein positive law for utilities sake , hath influence , to shun the multiplication of pleas ; for otherways , if compensation were rejected , the creditor would proceed to execution , and the debitor would be put to a new action , which is very inconvenient ; and therefore , when a debitor forbeareth to insist for a liquid debt , after the term is past , it is presumed to be on that accompt , that the creditor oweth him the like , or a greater sum , & frustra petit quod mox est restituturus ; but otherways compensation is neither payment formally nor materially , for when a creditor borroweth from his debitor a sum , and expresly obliegeth him to pay the same , it is so far from being done for payment of a sum , formerly due to the debitor , that there is an express obliegement to pay the same in numerat money , at a day ; and yet if that posterior debt be insisted on , it may be compensed with the prior . if compensation be renunced it will be excluded by that personal objection , which will take no place against other parties interest ; for thereupon compensation would be admitted for a cautioner , for a debt due to the principal , though the principal should renounce compensation ; or if the compensation be indirectly renounced , by giving a bond blank in the creditors name , which is understood , as done of intention , that the bond may pass to singular successors without a formal assignation or intimation , but by filling the parties name who gets the bond , who charging thereupon will not be compensed by any debt of the party , to whom it was first granted , nic. hic . november . . findlayson contra gardine . february . . henderson contra birny . and on the same ground , a bond of corroboration , bearing a general exclusion of suspension , was found to exclude compensation , though the bond was granted under caption , without any transaction or abatement , june . . robert murray cantra spadie of assintully . compensation is described by modestinus debiti & crediti contributie , l. ff . de compensationibus ; which description is neither clear nor full : it is not clear whether the contribution be by concourse of two debts , or by proponing of the compensation : neither is it full by expressing what kind of debts are compensible , for they must be commensurable , and liquid , being considered as fungibles , indecernable in the value , or in the individuals , as money , wine , oyl , grain , &c. or if both obligations be in general , as if either party be oblieged to deliver a house , a sword , &c. for then no speciality being exprest , the obligations are commensurat , and so compensible . but obligations of a particular body , are not compensible by money ; and therefore , money depositate being demanded , cannot be compensed by a debt due to the depositar , because the money depositat was not delivered as a fungible to be restored in the same kind , but in the same individual ; and likewise , acceptance of depositation imports so much trust , for ready delivery , that compensation is understood to be renounced , l. pen. c. depositi . upon the same ground compensation is not relevant upon sums secured by an heritable infeftment , whereby lands or annualrents are disponed for these sums ; for though impignoration be intended , yet the contract being in the form of vendition with a reversion , the sum lent becomes the debitors , as the price of the land or annualrent , and is no more the creditors , unless there be a clause of requisition , that he may return to his money , or pass from his infeftment , or a clause to repay upon a simple charge ; and therefore , till the requisition or charge , there can be no compensation , except upon the bygon annualrents , due by the infeftment , which remains still moveable and compensible , january . . oliphant contra hamiltoun . but compensation was sustained upon liquid sums , though appryzing was led thereupon , unless it were cled with possession and expyred , june . . leys burnet contra forbes of blacktoun . the like was found as to a sum appryzed for , but not upon a wodsett , requiring requisition , unless requisition were made , november . . home of plandergast contra home of linthil . but by a liquid debt , is not understood a debt , for which there is a decreet , or quae habet paratam executionem , for restitution ; but it is sufficient that the debt it self is liquid of the same kind with the charge ; and therefore , compensation is competent against sums due by registrat bonds , upon sums due by bonds , though not registrat , yea , though not registrable . compensation is also competent upon debts which are not liquid so soon as they become liquid , either by a liquidation of consent , or by a decreet , which was sustained , though the decreet was after the charge , december . . keith contra glenkindie . yea , a decreet of liquidation against a principal , was found sufficient to infer compensation against the cautioner , or his assigney , though not called to the decreet , it being without collusion , june . . irwing contra strachen . and compensation was sustained against an assigney , upon a debt due by the cedent , though liquidat after the assignation , in respect the assignation was gratuitous , january . . corbet contra ramsay : but the compensation ought not further to be drawn back then the liquidation ; and so ferms being liquidat will stop the course of annualrent , from the time of the liquidation , but not from the time the ferms were due , unless it were money rent ; but ferms or services only from the liquidation , december . . walstoun contra robert cunninghame . compensation is relevant , not only upon a debt of the creditors own , but if he be creditor by assignation , the debt is compensible by a liquid debt , due by the cedent , before he was denuded by assignation , and intimation , because the compensation was effectual , ipso jure , from the concourse of the two liquid debts , inter easdem partes , february . . keith contra heriot . march . . coupland contra forsyth . compensation is also relevant upon a debt assigned to the compenser , by our common consuetude , albeit the debitor pursued or charged , do seek out and acquire a debt of the chargers , even after the charge , which is a further benefit introduced by custom , though it hath this inconveniency , that a creditor can hardly recover any debt , if he be due debt to others himself ; but if an assigney charge for a debt , the debitor will not have compensation upon a debt of the cedents , assigned to him after the intimation of the chargers assignation , for these two debts never concurred , inter easdem partes , for though the debitor may always compense the assigney upon the cedents debt before the assignation , if it was originally due to the debitor himself , but after the cedent is denuded by intimation , the debitor cannot acquire a debt of the cedents due to another , therewith to exclude the assigney , unless the debitor compenser was creditor to the cedent , ab initio , or became creditor to him by an assignation to the creditors debt , intimat to him before he was denuded in favours of an other assigney , otherwise the debts do never concur betwixt the same debitor and creditor , january . . james wallace contra edger . july . . john 〈◊〉 contra alexander brownlie . but heirs and executors are accompted , eadem persona cum defuncto ; and therefore , compensation may be both upon , and against their debts : so compensation was admitted against an heir or executor , upon debt due by the defunct , to the defenders father whom he represented , spots . hic , cassmire pyet contra russetter . and compensation was admitted against an executor upon a legacy left to the defender , though there was no sentence thereupon , spots . executors , williamson contra tweedies . it was also admitted for an executor , upon a debt due by the pursuer to the defunct , though the executor had not confirmed that debt , but he behoved to cik the same , december . . aikman contra lady brughtoun . but compensation is not competent to a creditor of a defunct , taking assignation to one of the defuncts debts after his death , which is upon accompt of the priviledge of the creditors , who have access to the defuncts estate according to their diligence ; and therefore , the executor cannot prefer one to another ; much less can a debitor of the defunct , by taking assignation to the defunct debts , prefer that creditor to the rest of the creditors of the defunct , february . . thomas crawford contra the earl of murray . february . . children of mouswall contra loury of maxwelstoun . compensation was found competent against a donatar upon a debt of the rebels before the rebellion , for which the compenser was cautioner , though he payed after , february . . innes contra lesly . january . . mr. james drummond contra stirling of airdoch . compensation is competent against factors , procurators , or commissioners , upon their constituents liquid debt , but not upon their own debt , for they are not creditors as to their constituents sums : yea , a factor being charged by his constituent for his intromission with his rents , was not admitted to compense the same with a debt due by his constituent , whereunto the factor took assignation . neither was the chamberlain accompted a debitor to his constituent , as by a liquid debt , but that his constituents rents were in the property of his master , and in the factors custody as a servant , november . . pearson contra sir robert murray , alias crightoun . compensation takes no place in the provinces of france , which acknowledge not the roman law , but a 〈◊〉 law , without a priviledge from the king , as is observed by gregorius , tholesanus , upon compensation . and it seems not to have been competent by the law of scotland , before the 〈◊〉 of parl. . cap. . whereby it is statute , that any debt , de liquido in liquidum , verified by write , or oath of party , before giving of decreet , be admitted by all judges within the realm , by way of exception , but not after the giving thereof , in the suspension , or in the reduction of the same decreet : so that if the charge or pursuit be instantly verified by write , the defender will not get a term to prove compensation ; but if a term be assigned to the pursuer , the same would be assigned to the defender , to instruct any debt wherewith he would compense by write , or oath , yea , by witnesses , if the probation be closed as soon as the pursuers probation ; for the statute bears , compensation to be in liquid debts instantly verified before the decreet , although it mention not probation by witnesses , it doth not exclude the same ; but it excludes compensation after the decreet , either by suspension , or reduction , which seems to import more then the rejection of compensation , because it was competent and omitted , which hath been always a common objection against any reason of suspension , or reduction ; but that compensation should not be admitted after decreet , though the decreet were in absence , unless it were reduced upon improbation of the executions , or other nullity , or by purging the contumacy in not compearing and that taking assignation to debts of the cedents after decreet , should not found a compensation , as being against the letter of the statute ; for though it seem an emergent reason , which would be sufficient against competent and omitted , yet not against the speciality of this statute , excluding all compensation after decreet ; but this statute is to be understood only of decreets proceeding upon citation , and not decreets of registration , which are summar , and of consent , by the clause of registration ; and therefore , compensation was not sustained against a sheriffs decreetsthough in absence , july . . william wright contra john shiel . it remains to consider in what case compensation may be elided , by recompensation which but seldom occurs , and i have observed no decision upon it ; it can only occur when the charger or pursuer hath more liquid debts due to him by the defender , and insists not for them all ; for in that case , if the defender propone compensation , the pursuer may propone recompensation , upon the other liquid debts , whereupon he pursued not ; and if both the pursuers debts be anterior to the defenders , there appears no recompensation , because the defender may impute his debt to either of the pursuers debt he pleaseth , as he might in indefinit payments ; but if the defenders debt be anterior to both the pursuers debts , or in the middle betwixt them , in that case , recompensation seems not to take place ; because compensation being competent , ipso jure , so soon as ever two liquid debts concur , inter easdem personas , both debts are thereby in so far mutually extinct , and so there is no place for recompensation by a debt posterior to that concourse , so that if the defenders debt be anterior to both the pursuers debts , the first of them by its concourse , did extinguish the defenders debt ; and therefore , if he pursue for the first debt , compensation is proper to the defender upon his debt , anterior to both the pursuers debts , and cannot be excluded by the pursuers posterior debt , by way of recompensation , for then the debts from their first concourse , should not compence ipso jure , which holds also when the defenders debt is after the pursuers first debt , and before his second , for the pursuers prior debt , and the defenders debt first concurring extinguisheth each other , and the pursuers posterior debt cannot hinder the same , and so cannot found recompensation : but if the pursuit or charge be on the second debt , if compensation be proponed on the defenders midle debt , there is place for recompensation on the pursuers first debt . . retention is not an absolute extinction of the obligation of repayment , or restitution , but rather a suspension thereof , till satisfaction be made to the retainer ; and therefore , it is rather a dilatory then a peremptory exception , though sometimes , when that which is due to the retainer , is equivalent to the value of what is demanded , if either become liquidat it may turn into a compensation , such is the right of mandatars , impledgers and the like , who have interest to tetain the things possest by them , until the necessary and profitable expenses wared out by them thereupon be satisfied . . innovation is the turning of one obligation unto another , if it be a third person becoming debitor for relief of the former debitor , it is called delegation . innovation is not presumed by granting of a new obligation , either by the debitor or another ; but it is rather held to be as caution , or corroboration of the former obligation , consistent therewith ; and in the civil law it is never esteemed innovation , unless it be so exprest , l. ult . de novationibus : but with us , though it be not named , yet if it appear to have been the meaning of the parties , not to corroborat , but to take away the former obligation , it is a valid innovation : so it is ordinarly inferred , when a posterior security bears , in satisfaction of the former obligation , though it did not renounce or discharge it , nor expresly innovate it , december . . chisholm contra gordoun . the like where the posterior bond bears , in full satisfaction of the sum , for which the former was granted , though it made no mention of the former security , july . . mr. john lawson contra scot of whitslade . . confusion of obligations is , when the creditor and debitor become one person , as when the one succeedeth as heir to the other , or becomes singular successor in the debt , for therby the obligation is ineffectual , seing none can be creditor or debitor to himself , which was extended so far , that an heir portioner being debitor , by meddling with the defuncts means , and thereafter her husband taking assignation to a debt , and pursuing another , representing the defunct thereupon , the exception of confusion was found relevant , because he was creditor as assigney , and debitor as the intromettors husband , spots . assignation , john moor contra richard calder . thus vitious intromission is ordinarly sustained by exception , to elide any debt due to the intrometter , proprio nomine , or as assigney , hope , vitious intromission . but where an appear and heir gave a bond , and thereupon adjudication was used of his predecessors estate , his taking assignation to that adjudication , was not found to extinguish the debt by confusion , though rights so taken will not free the assigney of behaving as heir , if he intromet ; whereupon there was an act of sederunt made , as to all cases thereafter , in the case of the creditors of the earl of nithisdale , january . . but if by different successions , the debitor and creditor should become distinct , the obligations would revive , as in many cases may occur , and so confusion is not an absolute extinction , but rather a suspension . confusion doth not always take place , where the same person who is debitor succeeds to , or takes assignation , as is evident in cautioners taking assignation to bonds , wherein they are debitors as cautioners ; yet may pursue the principal , or co-cautioners as assigney , and will not be excluded upon alledgeance of confusion , which is only relevant when that debitor who hath no relief , becomes also creditor by succession or assignation . and so an executor taking assignation to an heretable debt , may thereupon pursue the heir for relief : or any heir male , of tailzie or provision , taking assignation to his predecessors debt , may as assigney , have recourse against the heir of line , of conquest , or executor . yea , if any person take assignation to a debt due by his predecessor to whom he is heir male , though during his life the assignation can have no effect ; yet after his death , his heir male will succeed to him in that assignation , and may thereupon pursue his heir of line , or executor for payment , for the taking of an assignation and not a discharge , did clear the mind of the defunct , that the debt and credit would divide after his death , and that his heir male would succeed to him in credito , and his heir of line in debito . title xii . rights real , where , of community , possession , property , servitudes , and pledges . . the original dominion of man over the creatures . . what rights are heretable , and what moveable . . moveable and heretable bonds . . how heretable obligations become moveable , and return to be heretable . . the original community of mankind over this inferior world , and all therein . . what remains yet common to mankind . . grass and fruits on high ways , are publick not common . . in possession what is facti , what is juris . . possession described . . possession natural and civil . . possession of moveables . . possession of the ground . . possession by limits and bounds . . possession by occupation , and by lifting the profits . . symbolical possession . . possession by reservation . . definition of possession . . requisites to begin possession . . requisites to retain possession . . how possession is troubled , interrupted , or lost . . kinds of possession . . lawful possession gives right to continue it against all illegal and clandestine acts contrary thereto . . bonae fidei possessor , facit fructus consumptos suos . . this not extended to unlawful possessers . . possessor decennalis & triennalis non tenetur docere de titulo . . 〈◊〉 possession of forefaulted persons . . possession , to what right ascriveable . . the nature of property . . property by possession of things common . . appropriation by industry . . first property of the ground was of houses and walls . . next of fields and countreys . . quae nullius sunt . . appropriation by accession of birth and fruits . . appropriation by alluvion . . appropriation by specification . . appropriation by necessary conjunction . de tigno injuncto . . inaedificata solo cedunt . . things sown and planted , how far they follow the ground . . possession of moveables 〈◊〉 property . . reprysals . . enemies goods taken in war. . goods of neuters assisting enemies become prize . having gone thorow the first two branches of privat rights , personal freedom , and obligation , we come now to the third , which is dominion : but because that term is more appropriat to men over men , then over other creatures , it is therefore called a real right , or a right of things : for as obligation is a right personal , as being a power of exacting from persons that which is due , so a right real is a power of disposal of things , in their substance , fruits , or use : for unfolding this right , and the progress thereof , both according to the order of time , and nature , advert ; . first , that when god created man , he gave him the dominion or lordship over all the creatures of the earth , in the air , and in the sea , genefis . verses , and . with power to man to dispose of the creatures , even to the consumption thereof ; and it is like , that during mans innocency , there was upon the part of the creatures , a great subjection and subserviency to man , till afterwards , when he revolted from god , the creatures revolted also from him : yet gods dominion over man , and mans dominion over the creatures , remaineth still in right ; so that he hath a legal power and warrand to dispose of them , though not so much possession , or natural power , being less able to master them then before . it is a false and groundless opinion which some hold , that man by his fall hath lost his right to the creatures , until by grace he be restored , and that the sole dominion of them belongs to the saints , who may take them by force from all others . for by the whole strain of the law of god , he still owneth dominion and property of the creatures in man , without distinction , and prohibiteth all force , or fraud in the contrary , which sufficiently cleareth that subtilty of mans forefaulture ; which , though it maketh man obnoxious by way of obligation to punishment , by gods exterminating him from the use and comfort of the creatures , yet that obligation doth not infer actualceassing of mans right , much less the stating of the rights of mankind in a small part of them . this dominion of the creatures being given to man without distinct proportions , or bounds ; it necessarily followeth , that by the law of nature , the birth and fruit of both sea and land were common to all mankind , who had equal interest therein , and every one might take and make use thereof , for his necessity , utility , and delight : yet so , as the use and fruit thereof must in some cases , and might in all cases become proper , as what any had taken and possest for his use , became thereby proper , and could not without injury be taken from him . much more the things which had received specification from his art or industry became proper , and all others might be debarred from any profit or use thereof , but so , that some property or use might be communicate to others , which being the lesser , and not reaching the power of the substance of the thing , is therefore called a servitude , whereby that which is proper to one serveth another , in part : and when the proprietar giveth not the fruit , or use , but only the holding , or the detention of the thing to another , for his security of some debt , or obligation of the proprietars to him , that right is called a pawn or pledge , so that in whole , all real rights are either that original community of all men , or the interest which possession giveth , or property , servitude or pledge , of which in order . first , generally as they were of old , common to both things moveable , and immoveable , and then specially in relation to things immoveable , and to heretable ground-rights of the earth , and things fixed thereto , which now by the feudal customes are much changed from what they were , and yet are in moveables . . the distinction of moveable and heretable , is very necessary to be here known , as being the common materials of real rights , and having a general use ; any thing is called moveable , which by its nature and use is capable of motion , as things immoveable are the earth , sea , and things fixed to the earth , not to be removed therefrom , as trees , houses , &c. which though they may be possibly moved , yet it is not their use so to be , the superfice of the earth is immoveable , though it may be moved from one place to another place of the earth : the sea also is immoveable , though it hath at the shoar its agitation by ebbing and flowing , which is not the use man maketh of it . these things are called heretable , because they descend not to executors , to whom only moveables befall , but to heirs : and so the distinction cometh ordinarly of moveables and heretables , as that which is fixed to , or part of the ground is compted immoveable , as trees , and grass , and all he natural fruits of the earth ; yet industrial fruits , as corns , are counted moveable , and belong not to the heirs of defuncts , but to their executors , when they are sown , or growing upon the ground at their death , as well as when they are reaped , and so fall under single escheat , february . . lewis somervel contra mr. william stirling . the distinction of heretable and moveable is derived to rights and obligations , as the matter thereof is heretable or moveable , and so all dispositions or obligations for constituting any right of the ground , in property , community , or servitude , are heretable , although they have not yet attained their effect , and become real rights compleat , as dispositions of lands , annualrents , pasturages , thirleage , &c. which is so far extended , that all which is by destination , to have its accomplishments by a real right of the ground , is heretable , as bonds bearing clause of annualrent , which because annualrents were usually by infeftment ; therefore , the very provision of annualrent , though but a personal obliegement to pay it yearly or termly , without mention of infeftment , made the provision or bond heretable , and not to descend to executors , children , or wives , but to heirs only ; yea , though the bond bore but five per cent , which was alledged but an alimentary clause , june . . jean pitcairn contra isobel edgar , till the act of parliament , . revived , parl. . cap. . whereby such bonds as were , or should be made after that act , . bearing only a clause of annualrent , and no obliegement to infeft the creditor in an annualrent , were declared to be moveable as to the defuncts children , or nearest of kin , but not as to the wife or fisk , to fall undersingle escheat , and that because many have their estates and stocks in money , and take obliegement for annualrents , for the profit thereof , without purpose to exclude their younger children therefrom : but wives are excluded , because they are ordinarly provided by their contracts of marriage ; but before this act , all such bonds were to all effects heretable , yet so , assums destinat for annualrent , though de facto , they bore none , are heretable , quoad , the party who destinat , as when a tocher is oblieged by a wifes father or brother to be payed to her husband , who is oblieged to imploy it upon annualrent : this sum as to the husband is heretable , and excludes his executors : but as to the debitor who was neither oblieged to pay annualrent , or imploy it , it is moveable , and so would affect the debitors executors , and exhaust his moveables , but would only belong to the creditors heirs , january . . robison contra seatoun . july . . barbara nasmith contra jaffray . this was so far extended , that when the destination was by a distinct article , or bond ; yet the executor might be compelled to assign , or repay the sum to the heir , spots . juramentum de calumnia , margaret contra janet watson . idem de haeredibus , executors of david seatoun contra thomas robison . bonds also become heretable by distinct superveening rights , as by a several disposition of the debitors , of his whole goods and lands , with obliegement to infeft , and also by a superveening appryzing . but even the compleat heretable rights themselves , containing also personal clauses of requisition , become moveable by the requisition or charge , which is , pro tempore , a passing from the infeftment , and taking the creditor to the personal obliegement , yet so , as when ever he pleaseth to pass from the requisition or charge , it convalesceth , and is not excluded by interveening rights , and was found moveable by a charge , though but against one of the cautioners , not only as to him , but as to all the debitors , seing thereby the creditor had taken his option , january . . collonel james montgomery contra stuart . but the shewing the defuncts mind to require , is not sufficient to make the sum moveable , unless it be done habili modo : so a requisition being disconform to the clause of a requisition , was found not to make the sum moveable , january . . stuart contra stuart . yea , a charge upon a bond of corroboration , accumulating the principal and annual in a former security by infeftment , and bearing but derogation of the former security , was found to make the whole sum moveable , and to belong to the executor , without necessity to instruct a warrand to give the charge , which was presumed ; albeit the defunct upon death-bed exprest , that the sum belonged to his heir , june . . executors and heir of sir robert seatoun . but sums were not found heretable , because a disposition of land did bear , as the condition of the reversion , that the land should not be redeemed , or the acquirer denuded , till he were satisfied of all sums due to him , or which should de due to him by the disponer ; neither yet when the sums are in the dispositive clause , to be contracted thereafter but only sums which are the anterior causes of the disposition , for thereby the creditor doth not make such sums jura fixa ; nor are they the causes of the disposition , february . . thomas wauch contra doctor jamison . sums are also heretable , when executors are expresly excluded ; and a charge or decreet for such sums , will not make them moveable , july . . christy contra christy : the reason is , because the mind of the creditor , by calling for his money , is not to retain it in his hands as moveables , but to make it a fixed right for his heir , seing he excludes his executors . and for the like reason , wives charging for their heritable sums , the stocks whereof is not in their husbands power , are not presumed thereby to make them moveable , and to fall in the power of their husbands : and if any party in his process or charge , should so declare his intent , it would not make the sum moveable . but requisition or a charge will make sums which were heretable by infeftment or destination , moveable . and so likewise will a decreet for payment , decem. . . mr. john fairholm contra mr. francis montgomery . sums consigned by an order of redemption , do not thereby become moveable till declarator of redemption , or till the creditor accept of the confignation , and insist for the consigned sums , which if he do not , his executor cannot recover the same , but his heir , to whom the wodsett right belongs . for it is not in the power of the debitor to alter the condition of his creditors sum , and to make it either heretable or moveable , without consent of the creditor , or authority of a judge ; but the consignet may take up his sum consigned , and pass from his order , january . . thomas nicol contra lowrie . june . . laird of lie contra foulis of blacktoun . the requisition and charge may not only be past from expresly , but tacitly , by taking annualrent after the charge , if it be for terms thereafter , as in the last case , spots . assignation , denaldson contra donaldson . requisition or a charge , makes bonds heretable , even after the act , . moveable as to the relict . the like is when they become otherways simply moveable . but sums only heretable by destination for annualrent , are moveable till the first term of payment of the annualrent be past , though the term of payment of the principal be not come ; yet if the first term of payment of annualrent be past , the sum is heretable , july . . sir lodovick gordoun contra sir john keith . and if the debitor die before that time , they affect his executors , june . . smith contra relict of peter sanderson , or by the creditors death before the first term of the annualtent , they fall to his executors and wife , february . . wallace contra mcdowal . and generally all rights and obliegments , having a tract of future time , are heretable as to the executors , who are thereby excluded , though they no way relate to infeftments , or lands , as pensions , tacks , &c. but as to the 〈◊〉 , where the distinction is betwixt moveables , liferent rights , and heretable rights ; the first being carried by single escheat ; the next by liferent escheat , the whole by forefaulture . all rights relating to infeftment by destination , are heretable , or moveable in the same manner as betwixt heirs and executors : but rights having a tract of time , but not for a liferent , are moveable , and fall under single escheat ; yet the bygones of annualrent by infeftment , are still moveable : but as to both effects , assignations to literent tacks , were found moveable , and to fall under single escheat , hope , horning , sir robert ker contra sir john ker. clauses also of relief in heretable bondsare moveable ; and the jus marti of husbands , though they carry the profit of the wises heretable rights , or rights of liferent , fall under the husbands single escheat . . to return now to the several kinds of real rights ; the first whereof , is , that original community which all men had at first , in the whole creatures of this inferior world. for as to that community which is competent to a nation , incorporation . society , or more single persons , it is property indeed to these in respect of other men , though amongst themselves it keepeth a proportion with the universal community ; first , in that there is an equal right and interest presumed to be in all these that have community , unless the contrair appear . secondly , that this equality is not exact in the use , but that which is enjoyed in common , may freely be made use of for the ends of the community , though some make use of more , and others of less , according to their need or satisfaction : as when two persons have an universal society of all their means , if the one be taler then the other , he is not to go naked , in so far as he exceeds his fellow : or if his appetit be greater , he is not to pinch it : and if he have more children , he may entertain and provide them , and thereby consume more of the common stock then the other ; so that in these universal societies , there is not an arithmetical equality , but a geometrical proportion to the need and use of the parties , to be observed . thirdly , such communities may be past from , and division being made of that which is common , thereby it will become proper to either party , unless the nature of the thing , or paction hinder ; in which case , division cannot be made without consent of the whole ; for ( as is showen before ) under the obediential obligations of restitution , to every man that which is his own , divisions of that which is common , is comprehended . fourthly , even during the community , that which any party taketh for his use is proper , and may not be taken from him by any other , if he exceed not the ends , or the interest of the society , by seeking more then is proportional to his need and use , with the rest in the society : all these agree to the original community of mankind , and so they did continue in the first and golden age of the world , when gold was not known , nor regarded , but simplicity and sincerity were the gold of that age , whereby every man contented himself with the natural fruits and birth of the earth , sea , and rivers : and it is like , that the fruits of the ground and trees , were satisfying to man at first , before they came to hunting , and killing of beasts , fishing in the seas , and rivers , and haulking and killing of fowls . . then also , men were contented with caves of the earth , or shades of trees for houses , and skins of beasts for cloathing ; in this community do many of the savage nations of america continue to this day , in these vast and unpeopled places of the world : but for the most part , man being multiplied upon the face of the earth , there was necessity of division , and appropriation , which hath so far prevailed , that now there remains nothing common , which by its nature and mans necessity , can be appropriat , whereby some things in whole , and some uses of others remain yet common to all men ; as , . first , the air is common to all men , because it can have no limits or bounds , and because all men every where must necessarily breath it . secondly , running waters are common to all men , because they can have no bounds ; but water standing , and capable of bounds , is proper . thirdly , the vast ocean is common to all mankind , as to navigation and fishing , which are the only uses thereof , because it is not capable of bounds ; but where the sea is inclosed , in bays , creeks , or otherways is capable of any bounds or meeths , as within the points of such lands , or within the view of such shoars , there it may become proper , but with the reservation of passage for commerce as in the land. fourthly , all the wild and free creatures , which are in the property of none , are in some sort common to all , as fishes , fowls , bees , &c. but in respect property hath taken hold of all that is appropriable , these are said rather to belong to none , as being by common consent declared void by all , that property thereof may be inferred by occupation , and possession , without respect to the persons necessity or use , as was in the ancient community , but that simply whosoever possesseth that which belongeth to none , doth thereby acquire the property thereof . such also are gemms and precious stones on the shoar , or things relinquished by the proper owners , except where there is a national community , that people or their authority , do possess in common , not only some reserved rights of the earth , but also the rights of precious things , or things relinquished , or lost by shipwrack , or otherways , whereby the imaginary possession of having such within their territories , is sufficient by the custome of nations to appropriat them , and to exclude other nations , or single persons of that same nation from them . so with us , treasures hid in the earth , whose proper owners cannot be known , are not his in whose ground they are found , nor the finders , but belong to the king : and things stray or waith , whose owners cannot appear , are publick , and ship-wrack , which is only understood , when all living things in the ship have perished ; but where an ox escaped out of the ship to land alive , the goods were not found escheatable as shipwrack , november . . hamiltoun contra cochran . but shipwrack is not to be made use of by the king , in prejudice of the owners of such countreys , as use not that law themselves , but they shall have the same favour here , as they keep to ships of this land broken with them , par. . cap. . fifthly , of things appropriat , there remains still the common use of ways and passages , which is like a servitude on property , for this is necessarly required for the use of man ; and therefore , understood as an use reserved , both in their tacit consent to appropriation , and in their custom . so all nations have free passage by navigation , through the ocean , bays and navigable rivers ; and have also the benefite of stations in the sea or rivers , and have the common use of the shoars , for casting anchors , disloading of goods , taking in of ballast , or water rising in fountains there , drying of nets , erecting of tents , and the like . yet doth the shoar remain proper , not only as to jurisdiction , but as to houses , or works built thereupon ; and as to minerals , coals or the like found there , and so is not in whole common , but some uses thereof only . nor doth it follow , that these uses are not common to all men , because they are denyed to enemies ; for , as for these , we may take away that which is in their power , in some cases ; so , much more may we detain from them that which is ours , and as we pursue their persons and goods in their own , much more in our bounds . the shoar in the civil law is defined to be so far as the greatest winter tides do run , inst. de rerum divisione . § . . which must be understood of ordinary tides , and not of extraordinary spring tides . but the use of the banks , of the sea , or rivers to cast anchors , or lay goods thereon , or to tye cables to trees growing thereon ; or the use of ports , which are industrial , or stations made by art , or fortified for security , are not common to all men , but publick to their own people , or allowed to others freely for commerce , or in some cases are granted for a reasonable satisfaction of anchorage , portage , or other shoar dues , which oftimes belong to private persons , by their proper right or custom , or by publick grant . so also , ways or passages in the land are common to all , and may not be justly refused by one nation to another ; and being refused , have always been accompted lawful to be forced , as plutarch relates of simon , who going to lacedemon , forced his passage through corinth . and agesilaus returning from asia , craved passage through macedon , and while they craved time to consult of an answer , he conceiving delay to be a denyal , said , consult you , but i will pass ; but to take away all questions , whether these were by might or right , we have a divine example of moses , numbers . verses , and . where israel in their way to canaan , craved passage of edom , by the high ways , and offered payment even for their water , which was to be understood of their standing water , as wells , which were rare and precious there ; and did the like with the ammonites , and upon refusal , forced it by war. there is also in property implyed an obligation of commerce , or exchange , in case of necessity ; for without this , property could not consist , seing by the division inferred there through , every man cannot have actually all necessars without exchange , which being denyed in cases of necessity , or where there is no common authority , may be taken by force , as these who pass through the territories of others , if by their opposition , or otherways they be short of provision , they may lawfully take the same for money , as is implyed in moses offer to edom , yea , there is implyed in property , an obligation to give in cases of necessity , to these who have not wherewith to exchange , and cannot otherways preserve their life , but with the obligation of recompence when they are able , for humane necessity doth also infer this , but it must be a real , and not a pretended and feigned necessity . so david being hungry , eat the shew-bread , though appropriat to god. and the disciples being hungry , eat the ears of corn ; and this is the ground of the obligation , to aliment the poor , which though it also floweth from the obligation of charity ; yet ( as hath been spoken before ) that obligation hath no determinat bounds , but is left to the discretion of the giver , not of the demander , and so can be no warrand for taking by force , and without consent . . the community that is of grass and fruits growing upon the high-ways , followeth the community of the ways themselves : but the common use of natural fruits brought forth without industry , even in proper fields , as of nutts , berries or the like ; or the promiscuous use of pasturage in the winter time , accustomed in many places of scotland , are no part of this community , but are for the most part permitted as of little moment , or disadvantage ; and therefore , may be denyed without injury . . the second step of real rights is possession , which as it is the way to property , and in 〈◊〉 cases doth fully accomplish it , so it hath in it a distinct lesser right then property , which hath no other name then possession , though it be more facti then juris : and seing possession is a common precognit to the most of real rights , it fitly falleth in here to be considered , both as it is a fact , and as it is a right ; for as it is a fact , it is not only requisite to constitute real rights , but is also an effect thereof , when constitute . . possession hath its name from its special kind , for it is as much as positio sedium , expressing the way of possession of the earth , ( at first common ) by families , nations , or persons , by fixing or settling their seats or habitations there , evidencing their affection and purpose to appropriat these seats , which therefore was not understood by their passing through it , but by fixing in it ; and therefore , territories of old were called possessions . that we may take up aright the nature of possession , wherein it doth consist , and how it is begun , continued , interrupted , and lost , we must first distinguish the several kinds of possession : and secondly , collect the common nature wherein they agree : and thirdly , the point of right thence arising . as to the first , the reason why the kinds and distinction of possession are so much multiplied , is because by positive law , and the custom of nations , property and servitude cannot be constitute but by possession , though it be not natural or necessary to these rights , but by the will and constitution of men ; therefore it receives diversification at their pleasure . . so what men think fit to call or esteem possession , is enough to constitute property , seing without any thing such , it may be constitute , as afterward appears . hence ariseth the distinction of possession , in natural , and civil ; the former being that which is , and the latter that which is holden or repute such , under which there are degrees , as it cometh nearer to the natural possession ; we shall proceed in order from the more plenary and plain possession , to these which are less clear . . first then , the clearest possession is of moveables , and it is the first possession that was amongst men , for so did the fruits of things become proper ; and thereafter , ornaments , cloathes , instruments , and cattel become proper , the possession whereof is simple and plain , holding and detaining them for our proper use , and debarring others from them , either by detaining them in our hands , or upon our bodies , or keeping them under our view or power , and making use of them , or having them in fast places , to which others had no easie access . this possession of moveables was so begun and continued , and by contrary acts interrupted and lost , when others exercised the same acts , either without the possessors consent , or by their tollerance , or tradition and delivery , or by forsaking or relinquishing them , so that in the matter of possession of moveables , there is little controversie . . secondly , possession of the ground is also clear in many cases ; as first , in habitations , whether in caves , tents , or proper houses . next in gardens , inclosures and all plantations . thirdly , in fields by pasturage or tillage , in so far as the acts extend , so far these all are most natural possessions : but after that most ancient simplicity , rights and the ways of acquiring thereof were multiplied ; and therefore , possession could not be intire , but behoved to be divided amongst the several interests , then did the difficulties arise , as when one had the property , a second the fruits , a third the use , a fourth the servitudes in some , part a fifth the detention for security , a sixth , the custody or location , and all these exercised , either by the parties themselves , their servants or children in their power , and their procurators in their name : yea , and by opposite and interrupting acts , many at once pretending to the same kinds and parts of possession . . so then the third kind of possession was , when the earth began to be divided by limits and bounds , and to have common denominations , then the possession of the whole was attained by exercising possessory acts upon a part , as he who possesseth a field , needs not go about it , or touch every turff of it , by himself or his cattel , but by possessing a part , unless there were contrary possessory acts. so possession of the greater part of lands , contained in one tenement , was found sufficient to validat a base infeftment , as to the whole , and to exclude a posterior publick infeftment , for removing the tennents from a part of the tenement , though the base infeftment had possession several years , and had attained or pursued for no possession of these tenements , spots . removing , hunter contra hardie , observed by dury , january . . the like of possession of a tack , of a part of teinds in a tack , found sufficient to validat the tack as to the whole , spots . . possessione , lady merchistoun contra wrights-houses . . possession civil is extended to uplifting of mails and duties , which is sufficient to introduce and preserve property , though the pasturage and tillage , and all other natural deeds of possession be in others , who are properly called possessors , who hold and possess for themselves , in so far as concern the excresce of the profits , above the rent , as to which they possess in name of their masters ; and therefore , this possession is partly naturral to the master of the ground , and partly civil by their tennants . . fifthly , possession is attained symbolically , where there is not use of the whole or a part , but only of a symbol or token , and this is when the thing to be possest , is present , as the civil possession by infeftment , by delivery of earth and stone upon the ground of the lands , or by delivery of a parcel of corns for a stack or field of corn , or some of a herd or flock for the whole flock being present , in which the symbols being also parts of the thing to be possest , have some affinity to natural possessions . sixthly , civil possession is by a token or symbole , which is no part of the thing to be possest , but is a token to represent it , as either having some resemblance with it , as the delivery of a copy or scroll for an office , or a penny for an annualrent , or otherways hath no resemblance , but is a token meerly suppositious to represent it , as delivery of a batton in resignation ; or delivery of a thing bought or sold , by a wisp of straw , which ordinarly is in absence of the thing to be possessed . . seventhly , possession is attained or retained without symbol , and without interposition of any person in our power or procurator , but only by conjunction of interest : so when the property of lands is granted to one , and the usufruct or liferent to another , or when the liferent is reserved , the possesssion of the liferenter is held to be the possession of the fiar , as to all other third parties , and rights . and a husbands possession of lands by himself , or any deriving right from him , is held to be the wifes possession , by her liferent infeftment . the several kinds and degrees of possession being thus laid open , it will be more easie to takeup the common notion and nature of it , and it may be thus described . . possession is the holding or detaining of any thing by our selves , or others for our use , it is not every holding or detaining which makes possession ; for so depositars detain , but because it is not for their use , they do not possess . to possession there must be an act of the body , which is detention and holding ; and an act of the mind , which is the inclination or affection to make use of the thing detained , which being of the mind , is not so easily perceiveable , as that of the body , but it is presumed whensoever the profite of the detainer may be to make use of the thing , but where it may be wrong , or hurtful , it is not presumed : as he who taketh another mans horse by the head , or keepeth that which is waith ; or taketh in his hands the money or goods of another , which if it were to make use of , it would infer theft ; and therefore , such detention is not presumed to be possession . he also who detaineth or holdeth a thing , not at all for his own use , but for anothers , who doth detain by him , as by his servant , or procurator , doth not possess : but otherways , if he have no warrand from another , but only intended , or is oblieged that it shall be to the behove of another , in that case he is possessor , because the real right is in him , and there is upon him only an obligation to make it forthcoming to another : and they who possess partly for themselves , and partly for others , as tennants have possession in part . . to come now to the requisites for entering and beginning possession , there must be both the detention of the body , and the detention of the mind , for use , for neither of the two alone can begin possession ; corporal possession alone can neither begin it , nor continue it ; and if any act of the mind were enough , possession would be very large , and but imaginary , but the manner of this seasure of possession , to begin it is very diverse , by all the several ways which are before set forth . . possession being once begun , is continued , not only by reiteration of possessory acts , but even by the mind only , though there be no outward acts exerced , and the mind and affection to continue possession is always presumed , unless the contrary appear , so that if the thing once possessed be void , as to outward acts , yet it is held possest by the mind ; and any contrary act of others , entering to that possession , is unwarrantable , and intrusion . for as hath been before showen , intrusion is where the entry is made in possession without violenc , but without warrand or consent , as ejection is by violence . but these contrary acts , though unwarrantable , yet they take away the possession that is detained by the mind . . possession then is lost by a contrary possession , and it is interrupted by contrary acts , and attempts of possession , which if they do not attain the effect to expulse it , it is called also a troubled or disquieted possession , for nothing can be possessed in solidum , by more then one , either simply , or in relation to the same right , as there cannot be more proprietars then one , of the same kind , though one be superior , and another vassal , so more liferenters cannot possess in solidum ; and therefore , the entry to possess that which is already possessed , must expulse the prior , or else introduce a partial and common possession ; yet it is not the contrary attempts , or every act that expelleth a prior possession ; but if the same be violent , the prior possessor hath the benefit of possessory judgements , and may lawfully use violence to continue possession , which afterwards he may not , for recovery thereof , when it is lost , though unwarrantably , or violently : thus possession is transferred from one to another : but possession is simply lost , when it is forsaken and relinquished ; it is not easie to be known when possession is detained by the mind , and when relinquished , wherein there is a general rule , that dereliction is not presumed , except it appear by evident declaratory acts or circumstances , as when it is thrown away in any publick place , where it cannot but be taken up , or when another is suffered to possess without contradiction , or when possessory acts have been long abstained from ; all which conjectures , are in arbitrio judicis . . from what hath been said , the ordinary distinctions of possession may be easily understood , as being either natural or civil , continued quiet and peaceable , or interrupted and disturbed , lawful or unlawful . under which distinction , are comprehended , possessio bonae fidei , which may be called innocent possession ; and malae fidei , or fraudulent , and possession publick and clandestine , and long possession , momentany or precarious . . to come to the right implyed in possession , it is mainly in two points ; first , in the right to continue it against all illegal contrary acts . secondly , the right of appropriation of the fruits consumed , bona fide , both these are introduced by positive law , for utilities sake : for , by equity any man might at any time recover the possession of that which is his own by force , and all the fruits thereof , whether extant or consumed : but civil society and magistracy being erected , it is the main foundation of the peace , and preservation thereof , that possession may not be recovered by violence , but by order of law ; and therefore , there is no more allowed to private force , then to continue possession , against contrary , violent and clandestine acts , immediatly after acting of the former , or notice of the latter : but a violent clandestine and unlawful possession , may not be troubled , though there be an evident right ; much less may possession be entered , where there is a right in a party himself , or his predecessor , to whom he is heir in that thing ; for as they are accounted as one person in law , so their possession is accounted as one possession . like unto this , is the right of appearand heirs , to possess their predecessors rents , though they be not infeft , which will not only exoner the possessors , but if the appearand heir die uninfeft , his nearest of kin will have right to the rents resting , from his predecessors death to his own death , and these will be subject to hi own proper debts , albeit they will not affect the land it self , but the next appearand heir must enter to the defunct last infeft , and his person and estate will only be lyable for the debts of the defunct to whom he entered . . the other possessory right is , that which was allowed in the civil law , bonae fidei possessor facit fructus consumptos suos , l. certum . cod. de rei vindicatione ; the reason whereof , is because they who enjoy that which they think their own , do consume the fruits thereof , without expectation of repetition or account , else they are presumed to reserve them , or imploy them profitably for restitution , and if it were otherways , there could be no quiet nor security to mens minds , who could call nothing securely their own , if the event of a dubious right might make them restore what they had consumed , bona fide , and as it is in the favours of the innocent possessor ; so it is in hatred of the negligence of the other party not pursuing his right . . this right is only competent to possessors , bonae fidei , who do truely think that which they possess to be their own , and know not the right of any other ; but private knowledge upon information , without legal diligence , or other solemnity allowed in law , at least the private knowledge be certain , is not regarded , nor doth constitute the knower , in mala fide , march . . nisbit contra williamson . but a mother was not found to enjoy this benefit in prejudice of her children , there being several presumptions of her knowledge of their right , november . . children of wolmet contra lady wolmet and dankeith her husband . in some cases a citation and production of any other evidently preferable right is sufficient , when the possessor hath no probable title ; but where he hath a doubtful title , mala fides , is only induced by litiscontestation , or sentence , as in reductions , whether the defender is lyable for the bygone profites , from citation , litiscontestation , or decreet is in the arbitriment of the judge , july . . pitmedden and the lord elphingstoun contra smith . the like in a tack reduced upon a failzie , hope , reduction , seatoun contra seatoun . the like , june . . mr. robert hunter contra lord sanquhar . the like as to a decreet of removing reduced , and the violent profits found due only after litiscontestation in the reduction , january . . jousie contra mortimer . and found only to take effect after sentence , in reduction of an appryzing , because the half of the of the sum was payed , hope , poinding , james lamb contra smeatoun hepburn . and though the possessors right was but a tack , which fell in consequence with the setters 〈◊〉 , reduced in parliament ; yet the tacks-mans possession , bona fide , was sustained , though he needed not to be called to the decreet of parliament , seing that on that decreet there was nothing done to make him know it , or put him in mala fide , july . . elizabeth dowglas and longformacus her spouse contra laird of wedderburn . upon this ground , an adjudger was preferred to the bygone duties uplifted by him , to a prior appryzer , who charged the superiour to infeft him before the adjudication , december . . laird of kilkerran contra ferguson . this was extended to the profits uplifted by infeftment upon a disposition , though granted after the liferent escheat fell , in prejudice of the superiour and donatar , july . . moor contra hannay and the earl of galloway ; and extended to a tack or few of ward-lands not confirmed by the superiour , in prejudice of his donatar of the ward , march . . laird of ley contra blair . and extended to the profits of a procurator-fiscals place , wherein the incumbent served three years without interruption , though his right was reduced thereafter , and declared null , ab initio , february . . thomson contra law. it was also extended to one , who having a posterior right of reversion , first redeemed and possessed thereby , as to bygones , before the citation , though he had not possest so long as to give him the benefite of a possessory judgement , november . . guthrie contra laird of sornbeg . it was also sustained against a minor , reducing upon minority and lesion , yet the possessor by vertue of his contract , was secure as to bygons , before citation ; here there was a probable cause of contracting for an onerous consideration , though not fully equivalent , february . . earl of wintoun contra countess of wintoun . upon this title , a tennent was liberat from removing , upon a warning by a fiar after the death of his father the liferenter , in respect he set the tack without mention of his liferent , and was reputed fiar ; and therefore , the son was put to a new warning , february . . hamiltoun contra harper . possession bona fide , was found to liberat an appryzer from being countable to the other appryzers within year and day , july . . bailzie baird contra bailzie johnstoun . it was also sustained against the donatar of forefaulture , january . . laird of blair contra lady heslehead . it was also sustained upon an infeftment for relief , whereby the rents were to be imputed in satisfaction , both of the principal and annual , february . . margaret scrimzour contra the earl of northesk . yea , it was sustained , though the possessors title was forged , he being a singular successor , not accessory to , or conscious of the forgery , even after improbation of his title , was proponed by exception , but not sustained , but reserved by way of action , in which the title was found false , yet the bona fides was extended to the rents spent , till he was put in mala fide , by probation of the forgery , but he was found lyable , in quantum lucratus , for getting more price for the land in question , then he payed to his author therefore , december . . dick of grange contra sir laurance oliphant . but no unlawful possession is valid in this case , if it be vitious , violent , clandestine , or momentany . but it is not so evident when a possession is accounted momentany ; sure little time will suffice in moveables , but in lands more time is required ; a year or term , or less time may suffice . this right is different from the possessory judgement competent upon infeftments which require longer time ; and because it is an effect of infeftments , tacks or the like , we shall speak thereof in that place . if the possession bona fide , be by vertue of a colourable title , though perhaps null in it self upon informalities in the law requisite , or upon inhibition , interdiction , or want of power in the granter , it is effectual . yet when by a common or known law , the title is void materially ; in this case the possessor is not esteemed to possess , bona fide , it being so evident , ignorantia juris non excusat : as if a relict should possess lands or others , the marriage being dissolved by her husbands death within year and day , november . . grant contra grant. hereby it is evident , that possession hath much in it dictinct and several from fact , and therefore it stands in place of a title in ejections and spuilzies . . by the canon law allowed by our custom , possessor decennalis & triennalis non tenetur docere de titulo etiam in causa salsi , whereupon prebendars were assoilzied from production in an improbation of their provisions , hope , improb . bishop of galloway contra the prebendars of the chappel-royal . but this holds not in reductions , where the title is supposed , but craved to be reduced upon a better right , as when the debate is , who hath the right of patronage , earl of wigtoun contra drummellier , july . . earl of wigtoun contra bishop of glasgow ; for in these cases an ecclesiastical persons title was to be reduced , in consequentiam with the patrons title , which hath not this priviledge . but this possession must be as being holden and repute a part of a benefice , and must be proven by witnesses ; and therefore , the possession of lands by tollerance , was found probable by witnesses , to elide thirteen years possession thereof by a minister , who pretended to it as a part of his glibe ministers of contra duke of bucleugh . and if the church-mens title can be found , their possession will be ascribed thereto , and regulate thereby . and therefore the bishop of dumblain , as dean of the chapel-royal , having long possest ten chalders of victual , as a part of his benefice , there being found a mortification of that victual by the king , bearing the king to have had right by disposition from another , and that others right being produced , did bear , reversion in the body thereof for seven thousand merks , which being payed to the king when the bishops were supprest , and his grant of redemption thereupon voluntarly , without an order or sentence : the church-mens possession more then thirteen years before the redemption , and thirteen years after the redemption , was elided by the reverse right and redemption : neither did the act of sederunt , after the reformation , declaring ten years possession of kirk lands before the reformation , and thirty years after , to import a right sustain this church-mans possession : that act being only for fews , granted by church-men , not for rights granted to church-men , july . . bishop of dumblain contra francis kinloch . and it was found , that thirteen years possession of viccarage by a minister , did not prefer him to a tacksman , where the ministers title was a decreet of locality produced , and not containing the teinds in question , february . doctor lesly contra the minister of glenmuck . this right in favours of church-men , is by a rule of chancelary of rome , which hath been continued after reformation , as being convenient , that less time and title should give right to the church benefices , whose mortifications may be easilier lost , or supprest , then other rights . there is also another rule in the chancelary , that triennalis pacificus possessor beneficii est inde securus ; this rule gives not right to the church , but prefers one church-man to another , if he continue to possess three years , without interruption , though he could not defend by his right . there is a third benefite by possession of benefices and stipends , by seven years peaceable possession , whereby they have the benefit of a possessory judgement , and cannot be called in question but by reduction , or declarator ; and therefore , a ministers possession of his stipend for seven years , was continued , though it partly affected the stock , and no title produced but a horning upon a decreet of locality , which was lost and never booked , december . , mr. john veitch contra laird of wedderly . and a minister having possessed his stipend seven years after the restitution of bishops , was preferred to a dean , who had a right before the year . and that all bishops and deans are restored by act of parliament , to their rights and possessions as before , . untill the deans right were declared , in petitorio , february . . mr. lewis dunlap contra his parochioners of skeen . and by an act of sederunt , possession of benefices , or ecclesiastical rights , thirty years after the reformation , or ten years before , is appointed to stand as a valid title , hope , possession , earl of home contra earl of bucleugh . . so also possession of a forefault person five years , and being repute as heretable 〈◊〉 , is appointed to stand as a valid right to the king , and his donatar of forefaulture , parl. . cap. . and so it was found , though the donatar was nearest of kin to the forefault person , and might be presumed to have had his right , maxwel contra westraw , july . . where hope observes , that the donatar made faith , that he had just reason to affirm that the rights were wanting , hope possession . this was sustained , though it was offered to be proven , that the rights were reduced , in foro contradictorio , upon recognition , february . . hairstones contra campbel . the like , though the forefault persons predecessors was denuded , by a publick infeftment of wodsett ; and possessed also by a back-bond , seing the wodsett might have been renounced ; therefore it was left to the inquest , appointed to cognosce by the act of parliament , whether the possessor was repute as heretor , or as backtacks-man , as was found in the case of sir john scot of scotstarbet contra tennents of garvock . so effectual is possession active , besides that it is the ground of prescription , whereby property and all other rights are introduced ; and passive , it is sufficient to hold out all others , who have not a good right , and it is always favourable in dubious cases ; from the experience whereof , is the vulgar saying , that possession is eleven points of the law. . possession as distinct from right , is ascriveable only to that title , by which it did begin , in prejudice of him from whence the possession was acquired , and must be restored , notwithstanding any other right in the possessor , to which he might ascribe it , and which after he had quit the possession , might recover it , spots . possession , george herreis contra anderson . idem . elphingstoun of selms contra bethia gutherie . the like , when it is acknowledged as accepted from a party , after decreet of removing , nicol. de migrando , earl of angus contra gilbertson . possession attained without process , by on who had in his person , both a wodsett and an appryzing of the lands , found only ascryveable to the appryzing , that the same might be satisfied by intromission , as being jus nobilius & durior sors , as was found in the case of the earl of nithisdale contra countess of balcleugh . but as to all others from whom the possession flowed not , the same may be defended upon all rights in the possessor , or him from whom he hath tollerance or right . . the main real right is property , standing in the middle betwixt community and possession , which precide it , and servitude and pledge which follow it . the nature of property is best understood , when it is compared with community ; for in this they both agree , that either hath a power to dispose of things , and in this differ , that community is a promiscuous , and a conjunct power ; but property is a disjunct and separat power of disposal , which , if it be with diminution of any part of the fruits or use , it is a diminished property , and that diminution is called a servitude , or pledge ; but though the proprietar , and these who have servitudes , have both the power of disposal of the same thing , yet in this they differ from community , that it is not promiscuous , but a distinct power , relating to distinct effects and interests . the way to distinguish betwixt property and servitude is , that the greatest interest retaineth the name of property , which hath in it a power of disposal of the substance of the thing , or alienation thereof ; whereas , servitude is the lesser right , and reacheth but the fruits or use in part , or for a time ; it will be here proper to inquire the manner of constitution of property , where it was not ; for the transmission of property ( being constitute ) from one to another , comes in afterwards amongst conveyances , or transmissions of rights . . the first and most simple way of constitution of property , is by possession of things common to all men , in so far as the possessors use requireth ; for as before is showen the original community of the creatures , did necessarly carry this with it , that every one might possess that which was possest by no other , in so far as his use required , and might not be lawfully dispossessed thereof without his own consent , which made it to become proper to him , and that he might defend violence against his posession of it . this property began first in moveables , cloathes , and ornaments of the body , instruments for making use of the creatures , as darts , which are the most ancient instruments of force , while man was satisfied with the natural fruits of the earth , and such other creatures as for his use and delectation , he seized on for the time . . secondly , appropriation was by mans industry and possession , by subduing and taming of the creatures , and his affection to make use of them , not for a time , but constantly , for thereby not only his common right and possession , but his industry and labour did properly entitle him to these things he possest : thus when man made use of the other creatures , not by his own strenth alone , nor by darts , stones or the like , but made use of one creature to master others , as hounds , halks , &c. these instruments of pleasure managed by him , became unquestionably proper to him ; then man proceeded also to subdue and make proper cattel , as cows , oxen , sheep , horse , mules , camels , &c. by constant use making of their work and fruits . thirdly , property having extended it self to the ground , appropriated seats for habitation , and fields for pasturage , and tillage , and that for a constant abode ; whereas at first , though mans use-making of the earth did introduce some kind of property in it for the time , yet was it without a purpose or evidence of a constant or perpetual appropriation , but men moved with their cattel , from place to place , without fixation in any one place . . this fixation of the ground began first in houses , and wells , which in the places of the world first inhabited by man , were rare , and of great necessity and use , and therefore , digged with industry , and preserved with earnestness . . fourthly , when man increased upon the earth , and societies became to be erected , they possessed whole countreys , and divided them amongst them , by meiths and marches , and when any one of them swelled to that greatness , that their territories could not contain them , either the whole , or the excreass of them removed to places of the earth not then inhabited , and fixed seats for themselves , though the unjust ambition of some of them , made them expell others : yet that , as contrary to the law of nature , was also abhorred , and gave occasion to the rest , from that same law to concur with , and maintain the oppressed . so that almost the whole face of the earth became changed from its original community , and there was a tacite consent of division , and property established throughout the world , except some barbarous nations , and nothing was left common that could be proper , but the few ways of community ( of which before ) do only remain . in which division and appropriation , this also is implyed , by the common consent of nations , that what is possessed or appropriated by none , or relinquished , is not now common to all , but held as belonging to none , that by posession it might be appropriat . . and therefore , fifthly , property is introduced , by possession of things which are simply void and belong to none , and that without limitation . this is by the law of nations , and their common consent , whence is that principle , quod nullius est fit occupantis . and this way of appropriation , differeth from the first way , whereby things common or their fruits , become proper by seasure and possession ; for , that being an effect of the native community , was with this limitation imployed in the nature of community , that one might sease upon no more then their use required , without hurt to the rest , who enjoyed that same community , as in a theatre , which is common to a city , every citizen as he cometh , may possess a place for himself , by standing , or sitting there , but he may notly along , if thereby others of the society might be hindered , to be present and behold . so if property now were but the effect of that original community , when the earth is so straitned with the increase of man , it would be the ground of perpetual contention and war , that the possessions of some were unequal and exceeded , and others had not enough ; therefore , for preservation of the common peace of mankind , the custom and consent of nations , hath allowed property of things void by occupation , without any further debate . all these ways of appropriation are by possession or occupation , and thus are all free creatures appropriat , as fowls of the air , wild beasts of the earth , fish of the sea , without distinction , upon whose ground they be taken ; and though men may be hindered to come within the ground of others , there being now no ground for passage only upon account of hunting , halking , or fishing : yea , though in some nations , the use of some of these free creatures be prohibite to any but to the soveraign power , yet the personal restraint hindereth not , but he who seaseth upon any wild creature in another mans bounds , it becometh his own , though he be punishable for that trespass ; and positive law may make a part of the punishment to be the loss of what he hath taken . so likewise , it is the first seasure that introduceth property , and not the first attempt , and prosecution ; as he who pursueth or woundeth a wild beast , a fowl , or fish , is not thereby proprietar , unless he had brought it within his power , as if he had killed it , or wounded it to death ; or otherways , given the effectual cause whereby it cannot use its native freedom as at the whale fishing at greenland , he that woundeth a whale , so that she cannot keep the sea for the smart of her wound , and so must needs come to land , is proprietar , and not he that lays first hand on her at land , though the falling in upon anothers game , when he alone is in prosecution , may be 〈◊〉 civility , or injury , yet it hindereth not the constitution of property , though it be a just ground to annull the right of the first possessor , and make him restore to the first prosecuter , if he continue his pursuit , with a probability to reach his prey . and therefore , in the last dutch war , a frigot of the kings , called , the nightingall , and a french frigot , being then auxiliary to the king in that war , having rencountered a dutch privateer , who had possessed and manned three pryzes , and having debelled him , in the mean time the prizes made sail to escape ; while the two frigots were taking two of these pryzes , a scotish privateer atacked the third , called , the tortoice , and made her strick sail , but not knowing whether the other frigots were friends or foes at such a distance , did not board her , till they came near . the french frigot being nearer then the english frigot , both the french frigot and the scotish privateer claimed the tortoice as their prize : the english captain sent the prize to leith , and declared the case under his hand , whereupon the admiral adjudged the tortoice prize to rankine the scotish privateer , and the matter being brought before the lords by reduction , the french privateer pursued not , but the kings advocat ; the lords found , that the frigots under the kings pay having defeat the dutch privateer , who was possessed of the tortoice , and being in view and prosecution of her , that rankins capture and possession was injurious , otherways then to assist the first attacker , unless it were proven that the prize would have escaped , if it had not been stopped , and forced to strick sail to captain rankine , february . . kings advocat contra captain rankine . the creatures are understood to be free while they are not within the power of any . but fishes within ponds are proper , and fowls though never so wild , while the are in custody . amongst these free creatures , these which are tame are not comprehended , but only these which are wild , which if they be tamed , contrary their nature , are so long proper , as their tameness remains ; but if they return to their ancient wildness , the property thereof is lost ; so soon as the owner ceaseth to pursue for possession , it is so long continued , or understood to be continued by the mind , having once begun by bodily acts ; and therefore , prosecution of wild creatures will not begin , though it may continue the property of them . bees are numbered amongst these wild creatures , which therefore are not proper , though they hyve on trees , more then fowls who set their nests thereupon , but if they be within a skep , or work in the hollow of a tree , wall , or in a house , they are proper , or while they hyve , or flying away are pursued by the proprietar : but thereafter they belong to him who next getteth them in his power : as also , these who were tamed and become wild , become theirs who regain and tame them again , and return not to their first owner . thus are also gemms , pearls and precious stones , appropriat by the finders . and likewise lands not possest , or which do arise of new , as do some islands in the sea , or more frequently in publick rivers , which by the civil law are accounted to accress to these whose ground lyes nearest proportionably , according to that part of the ground that fronts them ; but where such civil constitution is not , such islands are publick as the rivers are , in which they are bred . . the second way of appropriation , is by accession , whereby the accessories of things proper are also proper , as the birth of all cattel , and their fruits . it is likewise a natural acquisition of property , which ariseth by accretion of part , accretion of birth and of fruits , and even the dung , or any other profite followeth the property of that whereunto it is accessory , not only because by common utility , that is understood to be comprehended in the common consent of mankind , to depart from the original community of the earth , and all the parts , fruits and profits thereof , and all other things thereupon , that the samine might be appropriat . but also from that general consent of mankind , quae nullius sunt , fiunt occupantis . and so the birth and fruits being a new production , are carryed as accessory by the first possession . so trees and all plants , as the birth of the earth are carried therewith , while they are growing thereupon , even to singular successors ; but if separat , or contained in moveable boxes , they are not so carryed with the ground , as accessories , but are separat moveables . so likewise , the natural fruits of the ground , as grass , and herbs , are carryed as the fruit thereof accessory thereto . but by our custom , corns and industrial fruits , are esteemed as distinct moveables , even before they be separat or ripe , and belong not to purchasers of land or heirs . these are the ways of constituting property by natural equity , without consideration of the positive law of any particular nation ; but there is no doubt that the sole dispositive will of the owner , may state the property of what is his , and fully at his dispose in another : so may the publick content of any people introduce ways of appropriation , as they find most convenient , for publick good , and that either expresly by statute , or declaration of the legislative authority , or tacitly by consuetude ; and albeit it be a good and solide rule , quod meum est , sine me alienum fieri nequit , yet it hath the exception of publick sanction , or common custom , and so though it be not by the sole and proper consent of the owner , yet it is by the consent of that society of people , or their authority , wherein the submission or consent of every one in the society is implyed , in so far as the design of association extends . therefore , first , in fungibles and all such things as are not discernable from others of that kind , possession is generally esteemed to constitute property , which is most evident in current money , which , if it be not sealed , and during its remaining so , is otherways undiscernable , and doth so far become the property of the possessor , that it passeth to all singular successors without any question , of the knowledge , fraud , or other fault of the authors , without which , commerce could not be secured ; if money , which is the common mean of it , did not pass currently without all question , whose it had been , or how it ceassed to be his , l. si alien . . ff . de solutionibus , and though that law is in the case of commixtion of money with his money , who was not owner of it , whereby it is esteemed as consumption of the money commixed , that ground doth necessarily reach all money , so soon as it passeth to any singular successor by commerce , for thereby in the same way it is consumed . . secondly , upon the like ground it is , that appropriation by alluvion , is admitted in all nations , for thereby the adjection of others ground insensibly , and unperceivably by the running of a river , becomes a part of the ground to which it is adjected , because it is uncertain from whose ground such small and unperceivable particles are carryed by the water , and thereby also the frequent questions that would arise betwixt the proprietars , upon the opposit banks of rivers are prevented ; and though the adjection may be perceivable and considerable in a tract of time , it maketh no difference , if at no particular instant the adjection be considerable , as the motion of the palm of a horologe is insensible at any instant , though it be very perceivable when put together , in less then the quarter of an hour . . thirdly , upon the same ground , confusion of liquids , which are not separable , altereth the property , in so far that what before belonged to several owners severally , becometh now to belong to the same owners , pro indiviso , according to the proportion of the value of their shares , neither is there any difference , whether the confusion be made by the consent of parties , by accident , or by mistake , or fault , the effect being the same in all : that because the parts are undiscernable and inseparable , so as to give every owner the individual body he had before , therefore , he can only receive by equivolence , the like value by division . fourthly , upon the same ground , commixture of grain or other arid bodies , belonging to divers owners , which cannot be easily separate , or of any materials in one mass , work , or artifice , if they be not separable , they induce a communion proportionable to the value of the several ingredients : and though all the ingredients remain without alteration of their substance , so that in subtilty , the property of each part might be considered as remaining with the former owner , not only in commixture , but in confusion , alluvion , and money : yet publick authority for utilities sake , constituteth or declareth property in manner foresaid , which is also consequent from necessity , and the nature of the thing , though there were no positive law ; and such commixtures are not like the commixtures of a flock , where every individual is discernable and separable , as having the several marks of their distinct owners ; and if a commixture in that case should become undiscernable , it would of necessity introduce a community , as if different flocks of unmarked lambs should in any way fall to come together , so that the owners , or the servants could not distinguish their own , there were no remeed but to divide according to the number belonging to the several owners , and till that division were made , every owner had proportionable interest in every individual , seing none of them could say or instruct this or that to be properly his own . . fifthly , positive law for the common benefit , constituteth property by necessar conjunction in constructure ; such is the roman law , de tigno injuncto , whereby a beam , or any other material builded in a house , becomes proper to the owner of the house or building , that pollicy be not prejudged by demolishing of buildings , which therefore taketh effect , whether the materials be made use of bona , or mala fide ; yea , though the materials were affected with theft , which in other cases , is labes realis , the publick interest would not suffer demolition , but give the prior owner the value , secundum pretium affectionis , and further punish the transgressor ; as the roman law gave the double value , but if before receiving of that satisfaction , the building become to be demolished , there is no doubt but the owner of such materials will recover the same , rei vindicatione . upon the like ground of common utility , the roman law did constitute property by contexture , whereby the materials wrought into cloth , garment , or other artifact , did become the property of the owner of that artifact , if without destruction thereof , or considerable detriment thereto ; such materials could not be separate therefrom , in which they made no difference , whether these materials were made use of bona , or mala fide ; nor did the inherent labes of materials stolen , hinder the accession and appropriation thereof by contexture , § . . instit . de rerum divisione : but both in constructure and contexture , he who thereby acquireth the property of materials belonging to other owners , seing restitution thereof ceasseth , he is lyable , not only for recompence , in quantum locupletior fastus est , but also for reparation of the damage of the former owner , in which the manner of acquisition is considered ; for , if the materials of others be made use of , in constructure or contexture , bona fide , the orninar value thereof is only due , but otherways the greatest value , according to the estimation of the former owner , per pretium affectionis . in contexture it is considered , what is the design of the artefact , that it may appear what it is principal and what it is accessory , as in cloathes the materials though much more precious then the cloath , are accessory thereto , and the property of the whole befalleth not to the owner of the materials , but the owner of the cloathes . and precious stones set in rings , are accessory thereto , though more precious then the gold , or other material of the ring . but otherways , if a gemm beset in gold , the gold becomes accessory thereto , and wherever the case is dubious , that which is of greatest value carrieth the property of the whole . albeit that contraversies have been seldom moved with us , as to constructure , or contexture , it is not to be doubted , but we would proceed upon the like grounds of equity and utility . upon the like ground of accession , questions in relation to pictures are to be resolved , for if the ground , broad , or table of a picture belong to one and the same be painted by another , either for his own use , or for the use of a third party , there doth not continue two distinct properties , one of the broad , and another of the picture , nor a communion by proportion of interest , but the property of the whole befalleth to one , as to which , there was a contrariety betwixt the two roman juris-consults , paulus and caius , for paulus allowed the picture to follow the broad , as accessory thereto , and carried therewith , l. in rem , . § . . ff . de rei vindicatione ; but caius on the contrair , attributeth the broad as accessory to the picture , l. . § . . ff . de acquirendo rerum dominio , and both sentences be confirmed by justinian in the digest . in the institutes , he prefers the opinion of caius , § . . instit. de rerum divisione ; upon that reason , that it were ridiculous , that a precious picture of appelles should follow a broad , though of the lowest value : albeit before , precious stones , though of greater value then cloth , were declared by him to be carryed therewith , positive law may determine the point either way , without injustice , according to equity and expediency ; but there are diverse cases in the matter , which should be diversly resolved ; as , first , if any picture be painted upon a wall , or other immoveable , it doth necessarily cede to the ground thereof , and quality , wherever the picture is , for ornament of its ground , as when a scrine , or cabine , or the like moveables are painted , because the adorning of the ground is in that case designed ; but a face or any other picture , where the broad is only designed for it , the broad is most conveniently esteemed as accessory thereto , and in all cases , the owner of the whole is lyable in quantum lucratus est , even though the painting be done by him , who knew that the ground was not his own , for in that case , the presumption is not strong enough , that he did it animo donandi , for it cannot be imagined , that the making use of an inconsiderable broad of an other , should infer the purpose of gifting a fine picture thereupon , neither that they who paint a wall , scrine , or boxes of others , being articens , who work for profit , did the same to gift . but to obliege the other party . writing upon parchment , paper , or other tables , was by the rontan law accounted as accessory thereto , instit. de rerum divisione , § . . l. . § . pen. ff . ad exhibendum , which is very disionant from that which is there determined of pictures ; and therefore , is every where in desuetude , as is observed by grotius , minsynger and others , both as to writing and printing in the same way as painting ; for if the writing be upon the wall or other moveables of another , or if it be upon the books of others , it cedeth thereto ; but if it be upon paper or parchment , the design and use whereof is for writing , and the use whereof is consumed and lost by writing , it doth follow the writing , and it were very unreasonable to think that the evidents and securities of lands , or any manuscript , should be accessory to the paper , or parchment whereon they were written , and which were only designed to bear and preserve the write . . it is a rule in the roman law , which we follow inedificatum solo cedit , for thereby all buildings of houses , walls , wells , dyks , &c. and generally , all things sixed to the ground , are accounted as parts of the ground , and pass therewith ( though not exprest ) to all singular successors : and not to executors , but to heirs ; and thence , not only the materials of others become the owners of the ground , on which they are builded , and for preserving of policy , cannot be demolished , as hath been said of constructure : but likeways , he that builds with his own materials upon another mans ground , the samin accresce to the ground , and if the owner of these materials knew the ground to be anothers , the roman law gave him no recompence therefore , but presumed it to be done , animo donandi , which is rather penal , in hatred of these who incroach upon the ground of others , then from any sufficient ground of presumption ; and therefore , our custom doth allow a recompence to the builder , in so far as the heretor were profited thereby , in that he might get a greater rent for that building . but building by tennents of houses for their own use , though at their removing , they leave the land in better condition , then at their entry , they get no satisfaction thereof , without paction . and a liferenter having rebuilded a jointure-house , which was burnt by accident in her vidowity , and rebuilt by her second husband , was found to have no satisfaction therefore , except the house had been accustomed to be set for rent ; and that the liferenter , or her husband had no power to demolish any thing , that was fixed to the ground , february . . captain gutbrie contra laird of mckerstoun . and an appryzer having rebuilded a burnt house , was not presumed to gift the same to a liferenter , albeit her seasine was registrat , but she had her option , either to get so much out of the rent of the tenement , as it was worth before the reparation ; or to have the possefsion of the tenement , paying the annualrent of the sums necessarly and profitably wared upon the reparation thereof , during her life , january . . hacket contra wat. there remains to be cleared , that appropriation which is by specification , whereby of materials belonging to other owners , a new species is produced , whether the product belongs to the owners of the materials , or to him for whom the work was made , as to which , the two great sects of the ancient lawers , were divided , proculus and his followers attributing the property of all materials to him that made the work. and sabinus and his , attributing the whole to the owners of the materials : but tribonian midseth the matter thus , that if the product can easily be reduced to the first matter , the owners of the matter remain proprietars of the whole , as when a cup or other 〈◊〉 is made of mettal ; but otherways the materials cedes to the workmanship , not only when the materials are consumed , but even when they remain , and cannot be reduced to their first nature , as wine of other mens grapes , mault of other mens bear , cloth of other mens wool , and even a ship of other mens timber , but not by maultning of barly , or dying of cloth , or the like , which change not the species . conanus is of opinion , that whether the workmanship or the materials be more precious , the property is carried by the value . and 〈◊〉 esteemeth , that there ariseth a communion , as in confusion of liquors , proportioned according to the value of the materials and workmanship . positive law , or custom may without injustice , follow any of these ways , reparation being always made to the party who loses his interest , unless the presumption be strong enough to infer , that the workmanship was performed , animo donandi , by him who knew the materials belonged to others . in immoveables , the constitution or transmisson of property , is exprest in write , and is parted in many interests ; but in moveables , property is simple and full without servitude , and there is no other interest in them , unless they be impledged , neither need the title constitution or transmission of property in moveables be instructed by write , but is presumed from possession ; and therefore , for the restitution or recovery of moveables from the possessor thereof , it is not sufficient to instruct that the pursuer had a sufficient right thereto , as by the birth or fruit of his ground or cattel ; or as being bought by him and in his possession : but he must instruct the manner how his possession ceassed , as being either taken from him by violence , or by stealth , or having strayed , and being lost or the like ; and the reason thereof is , because moveables pass without write , and oftimes without witness ; and therefore , whatever right parties once had to moveables , it is presumed to be transmitted by donation , sale , or otherways , unless it be proven that he lost possession , as aforesaid ; or otherways , that it be proven by the defenders oath , that he knew the thing in question to be the pursuers proper goods ; for in that case , even his privat knowledge will prejudge him , though he had bought it at a competent rate , though it be not so in heretable rights , to whose constitution and transmission , write and solemnities are necessar , neither will it avail , though it were a horse bought in publick mercat and booked there ; for we have not the priviledge of fairs which the english have , that horse bought in publick mercat should be secured to the buyer , without further question , but he buys the same with the peril of the sellers rigt , march . . ferguson contra forrest . hence it is , that in all actions for recovery of moveables , there is no more lybelled , then that the moveables were the proper goods of the pursuer , and in his possession , for such time , by using the same as his own proper goods , and condescending how he ceassed to possess , as being lent by him , which was found relevant to be proven by witnesses , though the question was of a book of a considerable value , january . . walter scot oy to scotishtarbet contra sir john fletcher ; or that the goods did stray , february . . scot of gorrenberrie contra elliot ; or if the goods were in possession of a defunct at his death , the presumption of sale ceasseth ; or if there be a stronger contrary presumption , as was found in the case of jewels , which the defender neither could use as proper to his quality , and he was not a merchant or jewler ; ( these jewels were once in pignorat by write , ) in that case possession was not found sufficient to infer property , december . . john ramsay contra james wilson . and even in the case of ships of war , which are the most considerable moveables , property was presumed by possession without write , july . . captain hamiltoun contra the owners of the statine , and the property of money was inferred , by having the key of the chist in which the money was unsealed , unless a contrary positive probation were adduced , june . . tailour contra rankin . yea , moveables acquired bona side , for causes onerous , were found not lyable to a hypothecation , or conditions of a written disposition of them unless they had been affected with diligence , when they were in the hands of him to whom they were disponed with these conditions , december . . creditors of james masterioun contra creditors of alies thin . these are the ways of appropriation by private right ; appropriation by publick right is by war , and force , where there is no common judge or authority , for in that case , equity and that common justice , which is acknowledged by all nations , as the rule of right and wrong , especially in so far as it is owned by the law of nations , is a sufficient warrand for obtaining satisfaction by force , where it is denyed by justice ; but our design here being only to consider privat rights , we shall but noice that which by publick authority is allowed in these cases , to be the peculiar right of privat persons , which doth only reach moveables , seazed upon by reprysals , or the goods of enemies , or their partakers taken in publick war. . reprysals or letters of mark , are granted by princes or states , by their warrand or commission , to seaze upon the goods of all persons under the dominion of such princes or people , who have refused to make just reparation , for the wrongs and damages done by any of their subjects , which the law of nations doth justly and necessarly allow , for the common good of mankind ; for if private persons be injured , by these who are not under one common authority with them , by piracy , pillage or otherways , oftimes they cannot know the injurer , and all force being stated in publick authority , they cannot make use thereof to redress or revenge themselves ; and therefore , they can only make application to the soveraign authority of that society of people , whereof they are members , and represent and instruct the injury and damage sustained by them , by the subjects of other princes or states , and thereupon desire that a redress may be demanded , which is ordinarly done by ambassadours , or other ministers of state ; and if redress be not so obtained , the soveraign authority of the persons injured , may and ought to give commissions for seazing upon the goods of any of the people of that society , whereof the injurers are members , till just satisfaction and reparation be obtained , and though there be that singularity in it , that the goods of these who did not the injury , are taken to satisfie the same ; yet therin , there is not only necessity but moral justice , allowed and approven by the custom of all nations , by their common consent , for without this societies could not be preserved ; and therefore , the publick association of people implyeth this in it , that the society is lyable for reparation of the injuries and damages of any of their society , when reparation is refused . reprysals ought to be limited to a just satisfaction ; and therefore , what is thereby seazed , ought to be adjndged in courts of admirality , wherein it ought to be proven , that the goods seazed belonged to persons of that society , of which the injurer is a member , and to be valued according to the rate they are worth , where they are brought in and to be adjudged , in satisfaction to the injured of their damage and interest , in whole or in part : so that the excress should be forthco ming to the owner : thereof ; and so soon as satisfaction is obtained , the reprysals ought to ceass : neither doth the use-making of reprysals in this just order and measure , import the breach of treaties , or common peace , or infer publick war , though they may become the occasion thereof . . but where the injury is publick and attrocious , the law of nations hath necessarly and justly allowed publick war , not only to reach the moveables of publick enemies , but their territories , jurisdictions and estates , wherein the proportion of satisfaction cannot be so measured , nor is it so considered as in reprysals . that which accreweth to privat persons in war , is only the giving of quarter , or getting of spoil , in so far as the same is allowed , or permitted by the commanders in chief , warranted by publick authority , as is ordinar to the souldiers upon defates of their enemies , to seaze upon , and appropriat such moveables as are upon their enemies persons , or in their baggage : and sometimes for the encouraging of souldiers besieging , and for the obstinacy of the besieged , the plunder of places gained by force , is for some time permitted , and ceasseth so soon as countermanded . in other cases , what belongs to enemies is confiscated for publick use , and souldiers ought to be contented with their wages . . the main privat interest in publick war , is that which accreweth by commissions granted by the admiral , for seazing and appropriating of the ships and goods of publick enemies , and of these who become partakers of the war , and who carry not themselves as friends , or newters , to the princes , or states ingaged in the war : for by our custom , albeit such ships and goods be confiscat as publick , belonging to the king or states ; yet private persons who undertake these commissions , have the expenses and profit of these seazures , paying a fifteenth part thereof to the king , and a tenth part to the admiral . there have been many questions as to the rights and interests of allies , and newters , very fully and accuratly debated , and decided in the session , upon occasion of the late wars , betwixt the king and the states of the united provinces , which , because they are of great use , for clearing the important points that occur in these controversies , and for vindicating of the publick justice of the kingdom , we shall in the clearest and shortest method we can , give account of what hath been determined in all the pryzes which came before the lords of session in these wars . the lord admiral of scotland is the judge ordinar , and the sole judge in the first instance of all prizes taken at sea , but in the second instance , the lords of session , who are the supream judges in all civil causes in scotland , which are not determined by , or depending before the parliament , or their commissioners , do upon complaint of iniquity committed by the admiral , before final sentence advocat such causes , wherein they find probable ground of iniquity alledged and instructed ; or in the second instance after sentence , do grant letters of suspension , or reduction of the admirals decreets , whereupon all intricat and difficile questions in matters of pryzes come to be debated and determined by the lords ; there is no question , when the goods and ships seazed on belong to enemies , but only when they do belong , or are pretended to belong to allies or newters . the lords , upon complaint of iniquity committed by the admiral , it being alledged , that the lords were not judges in the matters of pryzes in the first instance , yet they found , both by the amplitude of the power of their jurisdiction , and by the custom in former times , that it was competent to the lords to advocat causes from the admiral upon iniquity , albeit the process cannot begin before them in the first instance ; for as they are the kings ordinar council , all matters , not belonging to the jurisdiction of another court , belongeth to them ; and therefore , they may , and oft have advocat causes from the justice general , and other judges in criminal causes ; albeit the lords cannot decide these causes , as being only judges in causes civil , yet they may advocat the same , that in case , the reasons of advocation be relevant and proven , they may remit the cause to the proper and competent judge , if the reason of advocation be upon incompetency , or to other unsuspect judges , if the reason be upon the suspicion of the judge , as being concerned in the cause , or nearly related to the parties , or having enmity against any of them ; and therefore , the lords in the advocation , raised by the owners of the ship , called , the bounder , against captain gilleis , it being , alledged that the admiral had committed iniquity , in granting a conjunct probation for proving the property of the ship and loadning ; the lords found this no relevant ground of advocation of the cause , it being in arbitrio judicis , whether to grant a conjunct probation before answer to the relevancy of the reasons of adjudication , or to discuss the relevancy first , and then to admit the points found relevant to probation ; but in the other way witnesses , are adduced for either party , yet this being only , ex nobili officio , the lords remitted the cause to the admiral , and ordained him to proceed to discuss the relevancy , there being pregnant grounds of adjudication instantly verified , june . . and upon his refusal , they did advocat the cause to themselves ; they did also ordain the admiral to proceed upon the evidences adduced to adjudge or assoilzie , without allowing a conjunct probation before answer , and declared , that if he proceeded not accordingly , they would advocat the cause , albeit the danish treaty bear , that their ships shall not be medled with , or their goods disloaded , till they be adjudged in a court of admirality ; for the lords are the kings great court of admirality , in the same way as his commissioners in england are judges in the second instance , of pryzes brought before the admiral of england , december . . captain stuart contra the owners of the danish ship , called , the seal fish. when questions concerning prizes come before the lords , they do not exclude the defences of strangers , as being competent , and omitted in the first instance , though that be a rule by our custom , but do proceed according to the common law of nations , and so they decided , july . . hans jurgan contra captain logan , which was the first case occurring in that question , and was always followed after . the rule by which the lords have always proceeded in the matter of pryzes , hath been the law and custom of nations ; and therefore , the tenor of the admirals commission was not found to be the rule , february . . bartholomew parkman contra captain allan . the treaties betwixt the king and his allies , in so far as they differ from the common law of nations , have always been allowed by the lords , as exceptions from that general rule , and good defences to the people , comprehended in these treaties . in dubious cases , the lords have proceeded by the kings instructions , ordinarly adhibit to the admiralities of all his kingdoms , that they might keep one uniform rule with strangers , in which , not only respect hath been had unto justice , but even favour towards allies , and policy and prudence towards all newters , that none of them might receive irritation , by the extension of justice in savourable case 〈◊〉 the ground of justice for confiscating the ships of those who are not enemies is , that they have assisted the enemy in carrying on the war , and thereby became accessories to the war , and by that delinquence , do confiscat the ships , and the loading , by which they have had accession ; for the law and custom of nations hath very fitly restricted the reparation of this delinquence , so as not to state the parties offenders , as enemies , and thereby to make all their goods confiscable , as enemies goods , but doth limit the same to these ships , in which the concurse is acted , ifthey be seazed in that voyage , in which they give assistance , or in the immediat return . ingagement in war by princes and states , cannot justly hinder the free trade of other people , upon whom , neither party hath either obligation or jurisdiction ; but the common consent and custom of nations requireth an equality and newtrality in all other parties , that they concur not in the war with either party , forbearing assistance in the war , which is by furnishing them men , instruments of war , materials specially requisit for the present war , money furnished for publick use , and in some cases victual , as when carried to places besieged , and other things which have promiscuous use in peace and war , when there is a special application there of to the necessar use of the war ; as iron , brass , leid , pitch , tar , and the like , which are therefore called counterband-goods , or prohibit-goods ; and by the denunciations of war , intimation is ordinarly made to newters , from what things to abstain , as from carrying of counterband-goods towards enemies ports , or carrying the goods and ware of enemies , whereby their trade is promoted , and they enabled to maintain the war ; or by carrying on their . trade under the colour of the trade of neuters ; and therefore , in time of war , neuters do instruct their vessels with passes , and other documents , instructing , that the bottom and goods belong to their subjects free-men , and that the parties ingaged in the war , or any of their subjects have no interest therein ; which passes are upon the oaths of the owners of the ship , or masters thereof , and those who embarque the loading ; and where there is any treaty , the formula of such passes useth to be exprest , always including an oath , and being given by such magistrates as are agreed upon . first , then seing the accession of neuters is a delinquence , it can have no place where there is not a publick denunced war , which were presumed to be known to the delinquent ; and therefore , the ship and goods belonging to neuters , were not found prize , because carrying counterband-goods towards the enemies ports , unless the war had been nottourly known , at the place where they loosed , at the time when they loosed , and acts of hostility , and declaring of prizes , in neighbouring places was not found sufficient , july . . hans jurgan contra captain logan . the like was found of a ship of hamburg , carrying counterband-goods to danish ports , after acts of hostility betwixt the king and the danes , because the ship was taken before the proclamation of the war against the danes , february . . merchants of hamburg contra captain dishingtoun . if ships have in them counterband-goods , they may be brought up , if the port be not exprest upon oath , and be a free port , or be contradicted by the oaths of the skipper and company , which infers a full probation , in case they acknowledge an unfree port , and a presumptive probation , in case the pass bear not a free port , yet it admits a contrary probation , for proving of the true port , january . . hendrick anderson master of the sun of dantzick contra captain dowglas . the like was found , where the pass made the port uncertain and ambiguous , bearing , london to be the port , but a greater fraught promised , if the ship was brought up into holland , which was found to be elided by a positive contrair probation , february . . the owners of the palm-tree , and patience contra captain atchison . amongst counterband , pitch and tar were found comprehended , july . . captain allan contra bartholomew parkman , timber propper for shipping , as masts , &c. is unquestionably counterband , but timber of promiscuous use , is not counterband , except in special cases , for the peculiar use of the war. there is a particular article in the first treaty betwixt the king and the swedes , by which it is declared , that in regard the most of the materials of the swedish trade , are pitch , tar , 〈◊〉 , &c. which are counterband , yet the king declares , these shall not be seazed upon that accompt , which was not found sufficient to defend a swedish ship carrying such counterband-goods , not being the product of their own countrey , july . and . and november . . parkman contra captain allan . in the last treaty betwixt the king and the swedes , there is an article , bearing , that counterband shall be prize , si deprehendatur ; and therefore , it was thereby inferred , that the ship and remanent loadning was not prize , july . . captain winchester contra the owners of the st. andrew . there was the like article , both as to counterband , and enemies goods , in the treaty of breda , betwixt the king , the dutch , the french and danes , at the pacification of the first dutch war , but that pacification being broken by the second dutch war , it was not found effectual in the subsequent war , upon a letter from the king. a ship was not found prize for carrying of victual or money to the enemies countrey , july . . captain lyel contra the master of the leopard . there is no doubt but carrying of souldiers to the enemies countrey of what nation soever they be is counterband , and useth to be exprest in the treaties of allies generally , under the name of men , which can only be understood of strangers when they are actual souldiers in the enemies service , for thereby there is a greater participation of the war , then either by carrying of enemies goods , or by carrying the instruments of war towards the enemies ports ; but otherways , passengers who are neuters , may freely go to the ports of enemies for trading , travelling , or any other end not being found or presumed to become citizens or souldiers there , but residing only as factors for strangers , and not contributing with the enemy to the war , they do not exceed the bounds of neutrality . the difficulty is greater in case persons belonging to the enemies countrey , be carryed in the ships of allies or neuters , and there is little doubt but the persons of enemies , residing in the enemies countrey , and contributing to the war , have the same or more effect , then the carrying of their goods , though that hath not occurred to be determined with us , and there is less doubt , that being born in the enemies countrey , or having resided there as citizens , but having left the same before the war , doth no further state them as enemies , then that by their language , or other evidence they are presumed to be enemies , unless they make it appear that they had left the enemies countrey , and fixed their residence else-where : neither will any burdens imposed upon their lands or houses , import their concurse in the war as enemies . there was a special concession by the king in favours of the king of spain , that because the language of his subjects in the netherlands , is the same with these of the united provinces , that there should be no seazure of the ships belonging to his subjects , upon accompt of being served , or navigat by hollanders . there is also an article in the swedish treaty , that it should be free for them to make use of dutch masters for navigating their ships , provided that these masters fix their domiciles in sweden , and become citizens and inhabitants there . these concessions gave great occasion of doubt , whether these or other allies or newters might make use of hollanders as mariners , or servants in their ships , because , if without that concession they were free to hire hollanders for servants , they might hire them for masters of ships , as well as other mariners , and so needed no such priviledge , and therefore run no hazard by being navigat by hollanders ; but if they might not lawfully make use of a hollands master , till they had it by special priviledge , a pari , they could not make use of hollands mariners . it is clear , that the being by nation hollanders inferreth no hazard , either as to the masters or sea-men , for the war is only with the citizens and inhabitants of the enemies countrey , so that the true domicile or residence is the main point in question . there is also great difference betwixt the master or stearsman and the common mariners ; for the master is in possession of , and intrusted with the ship , which is affected both with his delinquence , and by his contracts of bottomarie ; and therefore , his oath alone is always accounted sufficient probation , as to the property of the ship , and frequently the stearsman is intrusted with the loading , in which case also his oath will be sufficient probation as to the property thereof , but the oaths of the mariners have only been made use of as ordinar witnesses , proving by the concurse of two or more , and the confessions of the master , stearsman or company at sea when they were taken , have not been allowed as sufficient probation , to confiscat the ship or loading , yea , though renewed after they came to land , but only when taken judicially , and very little use hath been made of the oaths of the privateer , or his company , for proving against strangers , but only their own oaths , and other evidences , the oath of the skipper alone was found to prove against the owners , july . . captain wood contra booz neilson . the taking priviledge for a hollands master upon the considerations aforesaid , doth not import that mariners may not be made use of , who are by nation holanders , if they reside not in the jurisdiction of the enemy ; neither will the being of some of them aboard , infer such evidence , that the whole ship and loading belong not to newters and free men ; but if the most part of the company be hollanders , or if the master be a hollander , the presumption is strong , and gives sufficien ground for seazure ; and therefore , is fitly declared by treaties , that if the master by nation be a hollander , the pass shall bear expretly , that it is sworn upon oath that he is citizen and inhabitant in sweden . the king by his proclamation of the first war against the dutch , did command to seaze and make prizes of all ships , where there were found any number of men belonging to the enemy ; and therefore , a swedish ship was found prize , because navigat with hollanders , being all or the most part of her company , albeit she had a pass from sweden in the terms of the formula , contained in the swedish treaty ; and albeit the treaty bear , that where such a pass is , in bona aut homines nullo modo inquiratur , because in that same article it is subjoyned , nisi gravis suspicio subsit , and it was a most weighty ground of suspition , that the ship or goods belonged to hollanders , that the company acknowledged that they resided in holland , and were taken on there immediatly before this voyage in this process , it being alledged , that the confession of the company , taken by an admiral depute at cromarty , was extorted by holding swords and pistols to their breasts , or that the samin was so extorted at sea , when they were taken , it was found sufficient to enervat their testimonies , if they were made to swear at sea , the privateer and company having swords and pistols in their hands , because to evite the insamy of perjury , they might adhere in their judicial re-examination to their testimonies taken at sea , upon oath , albeit not true , or if by force or just fear , they did so depone before the admiral deput , february . . the owners of the ship , called , the castle of riga contra captain seatoun . the like was found , where a great part of the company were hollanders , june . . peterson contra captain anderson . and in the case betwixt captain allan and bartholomew parkman , decided , july . . the ship was found prize for having a number of hollanders sailers , viz. three , the company being nine , and for having a small parcel of tar , as counterband aboard , and having aboard the product of counterband , taken in the immediat return of that voyage ; upon all which grounds joyntly , the ship was declared prize . but in this war there hath no ship been declared prize upon account of the companies being hollanders , neither because the master was a hollander , if he were not also a part owner , albeit two of the company were hollanders , july . . captain bennet contra the owners of the pearl . but the master being a hollander was found a sufficient ground of suspition and seazure , but not of confiscation , the property being proven to pertain to free men ; and therefore , probation was allowed to either party , july . . captain lyle contra the master of the ship , called , the leopard . the hyring of the enemies people is no assistance to them in the war , but rather a weakening of them , so that if these of the enemies country be only aboard as servants to newters , and not upon their own account , either as traders or passengers , there hath been no inquiry in the last war , as to their residence , neither hath any thing as to that point been mentioned in the last proclamation of war , or in his majesties instructions to the admiralities of his kingdoms ; and though the law might have reached ships navigat by hollanders , residing in holland , and not changing the domicile , yet in favour and prudence , that ground hath not been sustained , it being more the kings interest to allow his enemies to withdraw from their countrey , then to force them to serve only there . counterband is not only a cause of confiscation , when taken going towards enemies ports , but also when the ship is taken in her return from the enemies port in that same voyage , for then the delinquence is compleat , whereas it had not taken effect before the ship attained the port , and yet might be justly seazed before the full effect , because the seazure of the ship in her voyage is the impediment that the effect is not attained ; and therefore , the common custom of nations hath allowed such seazures , for otherways it were impossible to hinder newters to carry counterband-goods to enemies , for carrying on the war ; neither will the pretence of altering their resolution , to sail to , or disload in a free port , be a sufficient defence , unless the ship were actually stearing another course ; but if a ship should be pursued to be searched for counterband in her passage to an enemies port , and should be waited for till her return , and taken as she came from that port , there could be far less pretence to excuse that delinquence ; and therefore , it was one of the grounds of confiscation of parkmans ship , taken by captain allan , that she was taken in the return of the same voyage , in which she carryed counterband to the enemies ports , july . . and though in that case the reason was lybelled , that the ship was taken , having in her the product of counterband , having the same effect with counterband it self , quia surrogatum sapit naturam surrogati , yet without that , in the foresaid case of captain lyle , it was found sufficient that the ship was taken in the return of that same voyage , in which she carryed counterband , without mention of the product thereof , july . . in which case it was found necessar that the ship belonged to the same owners , that had carryed in the counterband , so that though the ship had been light without any loading , she would have been prize , unless she had been a swedish ship , and so secured by the swedish treaty , confiscating only counterband when it is actually taken . it is a most convenient moderation of the law of nations , that the delinquence of carrying counterband , is followed no further then the immediat return of that voyage , otherways it would be the foundation of marring trade , by perpetual quarrels , upon pretence of counterband carryed in to enemies in former voyages . in these wars there has been no occasion to determine , whether it be a cause of confiscation , if a ship be taken in return of that voyage , wherein she was loaded with enemies goods . the dutch by their declaration did prohibit all friends and allies , not only to carry counterband-goods to any port in the kings dominions , but to be found therewith upon his coasts , or diverting from the voyage they might make with counterband towards the kings ports , holding that for a sufficient probation of their intending these ports , which is like they would not take off by documents aboard , expressing their own ports , or the ports of newters , it being so easie to procure false and colourable documents , yet that was never sustained as a relevant ground of adjudication with us . by what hath been said , the confiscation of the ships and goods of allies and newters upon account of counterband , and the assistance given to enemies thereby , hath been cleared ; the other chief ground of confiscation of the ships and goods of newters , is by their concurse with enemies , in carrying on their trade ; and therefore , in all the treaties , the formula of passes doth require , that it be attested upon oath , that the ship and loading belongs to the subjects of that ally , and no part thereof to the kings enemies ; and likewise the particular kinds and quantities of the cargo , and the owners thereof , and of the ship must be exprest . some are of opinion , that an unfree ship confiscats the loading , as accessory thereto , but that unfree loading or a part thereof doth not confiscat the ship , which is but a groundless subtilty ; the reason of this confiscation being the partaking with enemies in carrying on of their trade , it taketh place alike in the ship and loading , or any part thereof ; but it being a delinquence , it hath still the exception of the bona fides , and ignorance of these who partake in that conjunction of trade , but though the society or partnership was entered into before the war , it was not found to liberat , seing there was time and opportunity to dissolve it after , july . . master of the golden falcon contra captain buchannan . that a part of the ship belonging to an enemy , doth confiscat the whole ship , and loading , hath been of times decided , even in the case where the master was hired by the swedes , or other allies , and was a sworn citizen in sweden , unless it were sufficiently instructed , that he were an inhabitant and residenter there , and had changed his domicile from holland , and carried his wife and family , if any he had , to a newtral place . neither was the production of a burgess brieff in sweden found sufficient , seing the skipper by his oath acknowledged , that he left his wife lying-in at amsterdam , february . . and july . . master of the elsingburg contra captain dowglas . the like was found , because the master by his oath acknowledged that he was a hollander , and a part owner , and that the evidences that his domicile was still in holland , was more pregnant then that he had changed the same to copenhagen , june . . captain contra master of the saint mary . the like was found where the skippers oath bore him to be a part owner and a hollander , and that he intended to change his domicile , but had not done it , though he produced a swedish burgess brieff , july . . . captain frazer contra master of the young tobias . it was so decided , july . . captain seatoun contra the owners of the king david ; where the skippers oath contradicted the pass . acknowledging himself a part owner , and an emdener , under the jurisdiction of the states , though he shew certificats of being a burgess , and having children in denmark ; seing it was also deponed that his wife and family remained in emden . the like was also lately found in the case of captain stuart contra the master of the wine grape , in novemb. . where many evidences were adduced for changing the masters domicile , to sweden but the contrary evidences were found the stronger . the like was found in the reduction at the instance of the owners of the ship , called the calmer , against captain smeatoun , which was first found prize by the admiral , and twice thereafter by the lords , be cause the skippers oath contradicted the pass , bearing , the ship to belong wholly to swedes , and yet he deponed that he was an eighth part owner , and a hollander , and probation having been adduced by commission , both from sweden and holland , the most pregnant probation was , that his true domicile was at amsterdam , december . . the loading belonging to enemies , was also found to make the ship prize , seing it appeared , that they knew the same to belong to enemies , when inloaded , and had no priviledge by treaty , july . . captain wilson contra master of the ship , called , the venus . in like manner , the most part of the loading being proven to belong to a jew , residing and traffiquing in amsterdam , the same was found pryze , but the ship belonging to lubeck was found free , because the loosed from lisbon before the certainty of a war , and so was in bona fide to ingage for a fraught with a hollander ; neither was it respected that this jew was an agent for the king of portugal , seing he was a residing traffiquing merchant in holland , february . . earl of kincarden , contra the master of the st. andrew ; but thereafter this ship was also found prize upon other grounds . the greatest difficulty in the matter of prizes , is , the discovery and probation of the interest of enemies , if probation be not had from the oath of the skipper and company , or from the documents found aboard , there remains no more but presumptive probation , which sometimes is so pregnant , as it admits no contrary positive probation , and oftimes it doth admit the same , and then there is probation allowed to either party , for clearing the matter of fact , either as to the property of ship , or goods , the true residence of the master , or the port truly intended , or any other matter of fact , whereupon confiscation or liberation may be inferred . in the second dutch war , they had found out so cunning contrivances to cover their trade , that the same could hardly be so far discovered as to make a lawful probation ; for they did not only procure passes from the swedes , and danes , and other allyes , and newters , and upon the priviledge granted to them of hollands masters , did send persons intrusted by them , as masters or steersmen to mannage their trade , under pretence of fixing their domiciles in sweden , or in denmark , conform to these treaties : but also , they intrusted their money to merchants , or factors , belonging to the countries of allyes , and newters , who bought ships and goods in their own names , but to the use and behove of the hollanders , and upon their risk and advantage and profite , so that they had pretence to depone , that the propertie of ship and goods did belong to these free-men who bought them , because there lay only an obligation of trust upon them , to communicate the same to hollanders ; as did appear by a report returned from the magistrats of stock-holme , upon a commission from the lords for clearing the property of the ship called , the wine grape , and her loading , for the persons who by the pass , made faith as owners , being interrogat , whether they had lent their names for the behove of the dutch , or had bought the ship and goods for their use ; so that the benefit or loss was to redound to the dutch , they declined to give a direct answer upon oath , denying the same , and only asserted , that they ought not to be interrogat upon such indirect dealing , or the like , or to that purpose : yea , use was made of the name and trust of his majesties subjects , to collour the dutch trade , and many passes were procured from the admirality of england for the same effect : all these were the more easily obtained , because the sufferings of innocent merchants , upon accompt of their governours was generally pitied , and the profite of privateers was al 's generally hated and envied . the ordinar grounds of a presumptive probation of the interest of enemies , by the custom of nations are these , first , if in the time of war , ships were not instructed with passes upon oath , expressing the owner of ships and loading ; and therefore , the want of passes , or the want of documents for instructing the properties of the ship and loading , or any part thereof , the samen is presumed to belong to enemies . secondly , false or forged documents . thirdly , double documents . fourthly , destroying of documents , as throwing the same over board , or sending them away at the time of the capture ; infer that the ship or loading , or some part thereof , belong'd to enemies , and likewise the having aboard double flaggs , to be made use of at diverse occasions . as to the first ground of confiscation upon want of documents ; first , there is no necessity to have aboard a vendition of the ship in write , but in ships , as other moveables , property is presumed from possession . july . . captain hamiltoun contra the master of the ship , called the of stattin ; neither doth the want of a pass , conform to the formula in treaties , as being defective and not expressing the port to which the ship was direct , infer confiscation : in this case there was no counterband goods aboard , so that though the true port had been the enemies port , it would not have inferred confiscation , january . . hendrick anderson , master of the sun of dantzick , contra captain dowglas . the like was found the . of february , . the owners of the palm-tree and patience , contra captain atchison . and upon the . of february , . the owners of the king david , contra captain donaldson ; where a swedish ship wanting a pass , conform to the swedish formula , and not being upon oath , though these were found presumptive probations of the interest of enemies , yet not so pregnant as to exclude a contrary positive probation , that the property of the ship and goods belonged to free-men , and the not expressing the port in the pass of a swedish ship , was not found so to infer the goods to belong to enemies , but that it admitted a contrary probation , that the ship and loading belonged to free men , and because the loading was pitch and tarr , which is counterband , the not expressing the port , being essential as to counterband , would have confiscate the ship and loading , unless it had been secured by the swedish treaty , declaring pitch and tar , and others , being the growth of sweden not to be counterband , february . . the master of the st. peter of stoad contra captain stewart . passes for ships in time of war , must be renewed for every voyage , and cannot otherwayes express the kinds and quantities of the cargo , which was sustained as one of the reasons of the adjudication of the ship called the elsinburgle , at the instance of captain dowglas , decided july . . yet a ship was not found prize as wanting a pass for the present voyage ; in respect , she having loused at nantz , and having there a particular pass , she was forced in to england by stress of weather , and there sold her loading , and went back to nantz , and took in the like loading for the same owners and port , and therefore altered not the first pass , june . . captain donaldson , contra master of the debora . it is likwise most necessar , that passes be truly granted upon oath made , which is the greatest security against colourable documents , and therefore was sustained as one of the grounds of adjudication , of the ship calledth 〈◊〉 st. mary , that the master by his oath acknowledged , that he had not made faith , as the pass bears : as was found june . . and upon that reason a ship was found prize ; in which case also , one witness deponed , that papers were thrown over-board , july . . captain gilles contra the owners of the bounder . double documents infer confiscation , but that is chiefly understood when the documents are contrary in material points , but where there was one pass from the colledge of commerce , and another from the king of sweden , having some contrariety , but not in material points , the same was not found to make the ship prize , june . . captain winchester , contra the owners of the st. andrew . the throwing of papers over-board , or destroying the same at the time of the captur , is a most pregnant ground of confiscation ; for thence it is presumed , that these papers would have instructed the property to belong to enemies , and therefore being proven but by one witness , it put the burthen of probation upon the strangers , that the ship and loading belonged to free men , february . . the master of the white dove , contra captain alexander : regard was also had to the same , though but proven by one witness in the confiscation of the bounder , july . . and if there were concurring witnesses in this point , it would infer praesumptionem juris , & de jure , not admitting contrair probation . ships have oftimes been found prize by the concurse of several evidences of a contrivance , under colourable documents , and therefore a ship was found prize , because the pass did not mention the port , which a toll-breif bore to be breme , and the master by his oath acknowledged the port to be amsterdam , and that the owners were other persons then were exprest in the pass , and that the master resided in holland , though the pass bore him to to be a burgess in dantzick , against which a contrary probation was not admitted , january . . the owners of the crown of dantzick , contra captain lyon ; a ship was also confiscat , because the master and steersman deponed that they knew not to whom the goods belonged , but that they had order from a merchant in amsterdam , to consign them in the pack-house of stockholme , to be delivered to such persons as should show such marks , july . . captain frazer contra master of the flying heart , and in like manner the fortune of trailsoundt was found prize , july . . because it was acknowledged upon oath , that if the ship were taken by hollanders , the company should depone the goods belonged to the tarr company in stockholme , as the pass bears , and if it came safe to scotland or england , they should declare the same belonged to samuel souton an english man residing in sweden . albeit a part of ship or loading be found to belong to enemies , and that thereby the whole becomes prize , as being partners with the enemy in carrying on their trade , yet these who can show that they were in an invincible ignorance of the interest of an enemy , and did all that they could do , to secure against the same , by taking the oaths of the owners of the whole ship and loading , that the property belonged to themselves , and no part thereof to an enemy , it would take off the delinquence of that party , and preserve their interest , which was never pleaded during these wars , but by some of the kings subjects ; as in the first war , the king having by his proclamation , warranted all ships even from enemies , to be employed for bringing timber for the rebuilding of london , a great part whereof was then lately burnt , certificats and passes being alwayes had from the duke of york , lord high admiral of england , whereupon iohn dyssone merchant at london , fraught a ship of norway , whereof booz neilson was master , called the raphel , to import to london , six thousand dail boards , the ship in her voyage to london , was taken by captain wood , and the whole ship and loading adjudged as prize , which being brought before the lords by reduction , they found that the ship and loading became prize , because there were found aboard fifteen hundred dails belonging to the owners or company , who then were in enmity in the danish war ; and yet the six thousand dails belonging to the london merchant , who had contracted bona fide , by the kings proclamation did not become prize with the ship , as was decided july . . for the london merchant not being the place of embarquing , could not know whether there was more entered then the dails he fraughted , or whether the owners gave truly an oath upon the property and quantity of the loading . and in like manner , sir francis clerk merchant at london , having ordered a parcel of brass wyer to be brought home to him from sweden , the samen was imbarqued in the ship , called , the calmer , which was taken in her voyage to london , by captain smeatoun , and was adjudged prize by the admiral , because the pass was convelled by the masters oath , yet the parcel of brass-wyer belonging to sir francis clerk , was found not to be prize , decemb. . . sir francis clerk contra captain smeaton , and that because , sir francis residing in england , and not being upon the place of embarquing , could not know the false-hood or simulation of the pass , or other grounds of confiscation ; and albeit there was no document aboard for this parcel of brass-wyer , which would have inferred a presumptive probation against allies or newters , that the same belonged to enemies , yet the same or any other presumptive probation , though so strong against newters , that it would admit no contrary probation , as to the kings subjects residing in his dominions , who could not trade but under colourable documents , it was not dolus malus , unless they had or could have known the interest of any of the kings enemies . and likewise , some merchants in hull , having embarqued a loading in a ship of hamburg , called the lyveday , the admiral found the loading prize , because there were double and forged documents made use of , against which no contrary probation would have been admitted for newters , who being free with all parties ingadged in the war , had no reason to make use of false or double documents , so that it necessarily inferred , that the ship and loading belonged not to newters , but to enemies , yet the matter being brought in question by reducton , the lords found , that there being no ground of confiscation of the ship , but it was a free hamburg ship , except upon accompt of the colourable documents for the loading , they admitted a contrary probation , that the property of the loading belonged to the merchants of hull , nov. . . master of the lyveday contra captain middletoun . we have now gone through the ordinary grounds of adjudication of prizes , there are some other grounds that have been alledged for confiscation , but have not been sustained , as first , it was not found a ground of confiscation of a ship or loading , that the same belonged to the subjects of the duke of holstein , who held some of his estate of the king of denmark , then a declared enemy to the king , unless the duke of holsten had contributed to the war , as was found january . . paul herrison contra l. of ludquharn , neither that the ship wanted a vendition in write , july . . captain hamiltoun contra master of the ship called of stattin ; neither was it found a relevant ground of confiscation , because the ship was bought in holland , and taken at sea ere she touched any other ground , february . . the owners of the ship called , the prince of east-freezland contra captain binnie ; the like was found in the foresaid case of captain hamiltoun , neither did the insurance of ship or loading in holland infer a sufficient ground of confiscation alone , though it might concur with others as an adminicle , albeit the insurance was alledged to put the risk and hazard of the capture upon the kings enemies , without detriment to his allies ; yet the lords found , that seing the property of the goods insured , did remain in the kings allies , the samen ought not to be confiscat , neither was it alledged , that the insurance was expresly against capture , but against hazard at sea in general , july . . captain contra owners of the fortune of trailsound . this further is to be observed , that when the ships of newters have aboard counterband , the deffect of documents for the counterband , or double , or colourable documents to cover the same , will not infer confiscation , if the property be proven to belong to free men , and that the true port intended , was not an enemies port , because in such cases newters have necessity of colourable documents : but as to the property of ship and goods , they have no such necessity ; and therefore , contrary probation is not admitted against the ordinar presumptive probation , by wanting of documents , concealing or destroying of documents , or making use of double or false documents . when prizes adjudged by the admiral , are rouped and sold , if by reduction they be liberat by the lords , the owners are decerned in solidum , to restore the price , the ship and loading being indivisible ; and oftimes some are assumed as owners which are not solvent , june . . the ann of christiana contra captain martin . and if the ship and loading be orderly rouped , upon the admirals warrand , or sold upon his decreet , before the same be called in question by citation upon reduction , albeit the lords thereafter liberat the ship , they will decern no more but the price obtained by the roup before the admirals adjudication , or the price obtained by sale , bona fide , after the admirals decreet : and if the kings fifteenth part , and the admirals tenth part , be bona fide , payed , they are liberat , pro tanto , and the strangers must have recourse to the thesaury and against the admiral for repetition . title xiii . infeftments of property . . the original of fees. . feudal jurisdiction , especially of the king in parliament . . feudal jurisdiction of superiors . . allodials . . requisits of proper fees. . kinds of improper fees. . dominium directum essential to all fees. . dominium utile . . fidelity also necessary . . feudal contracts . . udal rights . . infeftment what it signifies . . how write is necessary for infeftments . . what kinds of writes are necessary for infeftments . . the tenor of formal charters . . when instruments of seasine became necessary . . the tenor of formal seasins . . the essentials necessary in seasins . . seasins must have warrands and adminicles , and what these are . . registration of seasins . . registration of resignations , ad remanentiam . . registration of the allowance of apprysings and adjudications , inhibitions and hornings . . the attest of the nottar and two witnesses , necessary in seasins . . extracts of seasins not probative . . transumpts of seasins . . bounding infeftments . . base infeftments , how far effectual without possession . . infeftments by confirmation . . infeftments upon appryzing or adjudication . . the effect of appryzings or adjudications with a charge . . infeftments ward . . feus of ward-lands , how far valide . . infeftments blensh . . infeftments feu . . the annexed property of the 〈◊〉 can only be set feu after 〈◊〉 in parliament . . feus of the annexed propertie , set with diminution of the retour dutie , are null . . feus of kirk-lands . . infeftment in burgage . . infeftment in mortification . . manses and gleibs . . conjunct infeftments . . infeftments to heirs substitute . . infeftments simple and tailzied . . union . . erection . . warrandice . . tacit conditions implyed in ward-lands . . tacit conditions in warandice and relief . . tacit conditions in infeftments of offices . . tacit conditions in excambion . . tacit conditions in feus . . liferents reserved in infeftments of propertie . . exceptions in infeftments , how far effectual . . faculties reserved in infeftments . . burdens of sums in infeftments , how far effectual . . the effect of impossible or unlawful conditions in infeftments . . conditions inconsistent are null . . clause de non alienando in tailzies . . clauses restrictive and irritant in tailzies . . regalia not exprest , are not carried by infeftment . . regalia are carried in barony , though not exprest . . jurisdiction and courts . . jurisdiction of baron courts , how far restricted . . issues of baron courts belong to themselves . . infeftments of constabulary . . fortalices , how far extended . . forrestries . . hunting of deer , inter regalia . . salmond-fishing . . cruives . . milns . . priviledge of brewing . . part and pertinent . . wood and coal . . houses and biggings , and park dykes . . fowling , hunting and fishing : . cunningars . . dovecotts . . free ish and entry . . herezelds . . steelbow-goods . . the effect of infeftments , in possessorio . . the effect of infeftments , in petitorio . . inhibitions and their effects against infeftments . the roman empyre in italy , being long opprest , and at length supprest by the inundation of the longobards and other barbarous nations , who seated themselves there , and divided these beautiful courtreys amongst their captains , and they sub-divided the same to their souldiers , for their military service ; and as they were the authors of this new right , so they did term it by a new and barbarous name , feudum , which the germans call fiff , and we with the english call a fee ; concerning which , there was no common written law , but the several provinces had their diverse customes , as they thought most suitable to the nature of this right , and their own utility . these books annexed to the civil law , called libri feudorum , though they have great respect amongst lawers , yet they are but the observations of privat persons , and so not a written publick law. by the irruption which happened in the sixth century , the civil law was sopit for five hundred years , it was revived in the eleventh century , and did take in with it the feudal customes , which have been propagat through the most civil nations in the world , not only for strengthning them towards war , but because soveraigns had thereby a new interest over their subjects and inferiors , thereby becoming their feudatars and vassals , owing always to them fidelity , and oftest following as their clients and assecles , acknowledging them as their lords , superiours , and paramount in their lands and heretages , which are all derived , mediatly or immediatly from the soveraign authority , as the common and supream superiour of all the subjects , who have any more then the right of unfixed moveables . . and thereby also ariseth the feudal jurisdiction , whereby not only the soveraign power , but all superiours do by the advice and assistance of their vassals , who are called peers of their court , order and determine all things , not only relating to themselves and their vassals , but to all others who are locally within their territories , both in civils and criminals , in so far as they derive jurisdiction civil or criminal from the soveraign power , immediatly or mediatly ; no nation is more exact in this then scotland , wherein the king as supream superiour , ruleth by his vassals assembled in parliament ; in which , at first , all were personally present , who held lands immediatly of him , as barons great and small , free-holders and prelats for church-lands ; the free burghs were also represented in parliament by their commissioners , as holding their burgage lands , and their freedoms and priviledges of burghs , as feudaters of the king ; so that there was not one foot of ground in scotland whose lord was not present in parliament . but when fees holden of the king became sub-divided , or multiplied , two or more commissioners were admitted in parliament , in name of the meaner barons and free-holders ; all were accompted great barons , who held an hundred merk land or above of the king , and the rest meaner barons , par. . cap. . so also other superiours have their courts , consisting of their vassals , who are oblieged to answer suit thereto , who as a jury , gave doom and judgement of old , when all matters proceeded by jury or inquest , as it was also in the kings court by sheriffs , bailzies , &c. of which the shadow or formality yet remaineth , of having a doomster as a member of court to pronounce sentence , though inquests be in most things laid aside through custom . . the very right of superiority carryes this right of jurisdiction over the vassals , unless by their infeftments , or prescription , they be exempted . our learned countrey-man , mr. thomas craig advocat , hath largely and learnedly handled the feudal rights of this and other nations , in his book de feudis ; and therefore , we shall only follow closely , what since his time by statute or custom hath been cleared or altered in feudal rights , which is very much , for he having written in the year , . there are since many statutes , and variety of cases , which did occur , and were determined by the lords , and have been , de recenti , observed as they were done by the most eminent of the lords and lawers , as by haddingtoun who was president of the session , and by president spotswood , and by dury , who continued in the session from the year , . until his death in the year , . and though these decisions have been intermitted since that time , till the kings return , the loss is not great , these times being troublesome , and great alterations of the lords ; but the decisions of the lords have been constantly observed since the kings return , by which most of the feudal questions are determined ; and these things which craig could but conjecture from the nature of the feudal rights , the customs of neighbouring nations , and the opinion of feudists , are now commonly known , and come to a fixed custom ; neither doth he observe any decisions particularly by the time , further then his own time in which our feudal customs could little be determined , seing the lords of session were mutable and ambulatory , till the year , . in which , king james the fifth did perfect the establishment of the session in a colledge of justice , who at first , could not be so knowing and fixed in their forms and customs ; and therefore , it cannot be thought strange , if the feudal customes as they are now settled , do much differ from what craig did observe ; he hath indeed very well observed the origine and nature of feudal rights , and the customs of italy where they began , and of france and england , whence they were derived to us ; and therefore , we say little as to these : and so much only of the rights themselves as must necessarly be introductory to our fixed customs ; in which , we shall follow that same method ( as most accommodat to the matter ) which we observed in the former title of real rights : but there being in feudal rights , nothing of that original community which is therein , being only a promiscuous property of incorporations or persons ; or otherways a servitude of common pasturage , &c. therefore , we shall first speak of the right of property in fees , both in relation to the superiour and to the vassal . next of the servitudes competent in fees , which comprehending all rights , not reaching the alienation or substance , but the lesser interests , extending only to the profits or use of hereditaments , must comprehend both the interest introduced by law , as teinds , and these that are by consent , by infeftments or other grants , or long possession , whether they be personal as liferents , conjunct-fees , terces , and the right of courtisie , annualrents , pensions , rentals , tacks , &c. or whether real servitudes , as thirlage , pasturage , &c. and last , feudal pledges , which are called wodsetts . but in all , we are only here to speak of the constitution of feudal rights , leaving the transmission thereof to heirs , or singular successors , to the next part , vide title . and . . the property of all lands and immoveables , or hereditaments , are either allodial or feudal ; allodial is that , whereby the right is without recognisance or acknowledgement of a superiour , having a real right in the thing , thus are moveables enjoyed ; and lands and immoveables were so till these feudal customs ; and now there remains little allodial : for lands holden feu or burgage , or lands mortified , are not allodial , seing they acknowledge a superiour , having the direct right of property , and to whom , there must be some rent or return , though they be not so proper fees , as land holden ward . yet the superiours right in the soveraign power , is not feudal , but allodial here , though some kingdoms be holden of superiors as feudal . so also the gleibs of ministers seem to come nearest to allodials , having no infeftment holding rent or acknowledgement , though they be more properly mortified fees , whereof the liferent-escheat befalls to the king only . kirks and kirk-yards are only allodial , without any acknowledgement of a superiour , but they are destinat for pious uses , and are ordained to be upheld and repaired , par. . cap. . and the parochioners of every paroch ar ordained to build and repair kirk-yard-dykes with stone and morter , two els high , and to make kirk-styles therein , par. . cap. . the manner of reparing kirks was remitted to the council by the said first act of parliament , and thereupon an act of council was made , which is ratified , par. . cap. . but is not repeated in the ratification , but only in general , that the parochioners were warranted to name persons to stent the neighbours . a fee signifieth either the right it self , or the thing affected with the right , whether it be corporeal , as lands lochs , woods , fortalices , milns ; or incorporeal , as annualrents , fishing , jurisdiction , pasturage or the like , and at the first , it was freely granted for fidelity and military service of the vassal . . and therefore it implyed , first , that it was a free and gratuitous donation , as to money or other anterior cause , and only for fidelity and service . secondly , none could succeed therein , but such as could perform that service , whereby women were excluded . thirdly , it could descend to none but to the male issue of the first vassals body , which ceassing , it became void , and could not be transmitted to the collaterals , or to the ascendents of the first vassal . fourthly , whensoever it was open or void by the death of the vassal infeft , it returned to the superiour , until the vassals heir were capable of military service , which was esteemed to be so soon as he attained majority . and while it was in non-entry , by the negligence of the vassal , not demanding infeftment , but in his minority , when he was unable to serve , both the lands and the vassal were in the hands of the superiour , in ward and custody , or of his donatar as his legal tutor , who was to educat him for his own service , and to intertain him , beside which he had then no other profit of his fee. and if he married without the superiours consent , he lost a sum equivalent to that tocher , which were suitable to his quality and estate : and if contrary his superiours will , he refused a suitable match , he forefaults the double of the tocher : the reason introductory of this was , because the superiour might be concerned in the affinity contracted by his vassal in his marriage . in all fees , fidelity by the vassal to his superiour is necessarly implyed , and if any thing were acted contrary to fidelity and gratitude , against the life and fame of the superiour , to the great prejudice of his estate or nearest relations , the fee became void ; wherein is also comprehended the vassals disclaiming of his superiour , or owning another in his place ; or infefting another vassal without his superiours consent . fees are not only unalienable without consent of the superiour , for the reasons now adduced ; but they are stricti juris , and there is no obliegement upon the superiour to receive any stranger or singular successor , his vassal , except what the law hath introduced by statute or custom , in favours of creditors , for obtaining satisfaction of their debts , by appryzings or adjudication , whereby the superiour may be compelled to receive singular successors : yet the disposition procuratory , or precept of seasing before infeftment are asignable , and the superiour may be compelled to receive the assigney , if the disposition be in favours of assigneys : but infeftment being once taken , he is not oblieged to receive any assigney or singular successors , otherways then in obedience of horning upon appryzing or adjudication , getting a years rent for accepting a new vassal . . these being the ancient requisits of fees ; that is a proper fee which hath them , and the want of any of them makes it improperin so far , but most of them might always , and now are changed by the tenor of the infeftment , as when the fee is granted to the vassal and the heirs of his body ; it is so far improper , that women may succeed . if it begranted to him and his heirs simply , then his collateral heirs or ascendents may succeed : or if to his heirs male whatsoever , much more if to the heirs or descendents of other persons in tailzies . fees are also granted , not for military service , or service indefinitly , but for some definite particular service , as for carrying of a sword or other ensign of honour , before the superiour in solemn days ; or not for service at all , but for some rent , which is either inconsiderable , as a meer acknowledgement of the superiour , as a penny money , or a grain of pepper , a rose , &c. or , for a feu-ferm-duty in money , or any fungible , or other performance : or , when the avail of the marriage , and profit of the ward is taxed to such a sum . hence we may consider , what remains as to the essentials of fees , and common interests thereof , which are these . . first , there must remain a right in the superiour , which is called , dominium directum ; and withal , a right in the vassal , called , dominium utile : the reason of the distinction and terms thereof is , because it can hardly be determined , that the right of property is in either the superiour or vassal alone , so that the other should only have a servitude upon it , though some have thought superiority but a servitude , the property being in the vassal ; and others have thought the fee it self to be but a servitude , to wit , the perpetual use and fruit , yet the reconciliation and satisfaction of both , hath been well found out in this distinction , whereby neithers interest is called a servitude ; but by the resemblance of the distinction in law , betwixt jura & actiones directae , and these which for resemblance were reductive thereto , and therefore called , utiles . . the superiors right is called , dominium directum , and the vassals utile , and without these , the right cannot consist . secondly , as there must be a right in the superiour , and another in the vassal , so the vassal in his right must necessarly hold of , and acknowledge the superious , as having the direct right in the fee , otherways the two distinct rights without this subordination , will make but two partial allodial rights . thirdly , there is necessarly implyed in fees , some rent or return to the superiour for the fee , which may be either service , money , or other fungible , or prayers and supplications ; as in fees mortified to the kirk , or other performance , or at least the vassals fidelity to the superiour , implying , not only negative , that he may not wrong the superiour , but positive , that he must reveal to his superiour any design against his life or fame . . which fidelity , though it be not exprest , yet it is necessarly imported in all kinds of fees , and cannot be taken away by any paction to the contrary , without destroying the very nature of this right . . to come now to the constitution of the property of lands , in fee and heretage , the feudal contract is of it self alienative as loan , sale , exchange : and the contracts in law , ealled , do ut des , and do ut facias : of which two last , the feudal contract is a kind , seing thereby land or other immoveable is given , for giving or doing something ; therefore , as in others , so in it , the will of the owner must constitute the right in the vassal ; and seing by the custom of nations , some kind of possession is necessary to constitute or transfer property , the superiours delivery of possession to the vassal , or acknowledgement and approbation thereof in the vassal , to be holden by him in fee , were sufficient to constitute and perfect the fee. . and therefore , in the udal right of lands in orknay and zetland , whereby without any infeftment , investiture or other right or write , they enjoy lands and hereditaments ; it sufficeth them to instruct by witnesses , that they have possest , as being holden and repute heretable possessors of such lands ; but the law and custom of scotland , having , as in all other places , necessarly required write , not only for evidence of the constitution of this right , but as solemnities for the perfecting and solemnizing thereof , without which it becomes not a compleat real right of the ground , except where such writes have been destroyed , or lost in times of trouble , and then proving the tenor of them , must be used : or in some cases , the heretor may be cognosced by an inquest , as heretable possessor . but ordinarly write is requisite , which writes are called an infeftment , or an investiture . . infeftment or infeudatio , signifieth the right constitutive of a fee , as its etymon indicateth : so also , investiture is the same , more metaphorically , as we are said to be invested or indued with any right , as men are covered with a garment or cloak , and denuded and divested thereof , when it is extinct or transmitted : so both infeftment and investiture signifie the writes , which are evidents , signifying the act constituting the fee ; and these are two , the dispositive will of the superiour , and his delivery of possession by himself or his procurators in his name . . of a long time , infeftment hath required write as a necessar solemnity , not only as a mean of probation , that the superiour did truly dispone to the vassal , any immoveable in fee and heretage , and that accordingly the vassal attained possession , natural , civil , or symbolical ; for if write were adhibite only for probation , other probation might also be admitted , not only against the superiour , or his heirs by their write or oath , but even against their singular successors , or other competitors , by whose oath of knowledge or write , the truth of the infeftment , and of these two necessary acts , to constitute a fee , might be proven ; and albeit the superiours oath would not prove against a singular successor , yet his write anterior to that singular successors right , acknowledging , that he had at such a time invested such a person as his vassal , and entered him in possession , which would prove against his assigney ; yet neither of these ways would constitute a fee , and supply a written infeftment , except where the peculiar custom of fees without write hath been immemorial ; and therefore sustained as sufficient : and albeit it be provided by ancient statutes , that the heretable possessors of lands may be cognosced by inquest , yet that was only upon consideration of calamity and war , whereby writes were destroyed , and where no competition was by any pretending a written infeftment , and possession conform . but the question being only betwixt the superiour and his vassal , who with his predecessors had been in immemorial possession , as being holden and repute heretable possessors , by performing the deeds proper to vassals of such lands , and so holden and repute as heretable possessors by the neighbour-hood , which i have not heard to take effect ; but as to the kings immediat vassals , who claims property in no lands as supream superiour ; but what is annexed to the crown , or whereof the property is acquired to the king , by the casualities of his superiority : or by acquisition from other proprietars ; and therefore , he doth never exclude the ancient heretable possessors , though they have losed their rights by publick calamity , wherein - not only adminicles in write , but the testimonies of witnesses above exception are received , whereby if the right be not proven to be blench , or feu by the exchequer rolls , which bears all the kings property and the reddendo's thereof ; or by eque's made in exchequer , the fee will be held ward , and according to the probation and verdict of the inquest , charters will be granted by the king in exchequer , and there scarce can be pretendedany fee , which hath not been already established by write . . the write requisite to constitute a fee , must contain the present dispositive act of the superiour , by which he dispons to the vassal and his heirs the fee , in whatsoever terms he expresseth it , as if he gift , grant , alienat , sell , or dispone , though the several terms exprest may import a different title and warrandice ; yea , albeit no cause or title be exprest or implyed , but only that the superiour dispons ; or though the cause or title insinuat be not true , yet it was sufficient with possession until the solemnity of instruments of seasine was introduced , and is still sufficient when seasine is rightly adhibit ; for we follow not that subtility of annulling deeds , because they are sine causa , but do esteem them as gratuitous donations ; and therefore , narratives expressing the cause of the disposition , are never inquired in , because , though there were no cause , the disposition is good : and albeit neither tenendas , reddendo , or the modus acquirendi , be exprest , yet if the property was the disponers , and he do but express the disposition to be in fee and heretage , it is valid ; for the reddendo is understood to be services , accustomed in ward-holdings ; and there will be carryed ( though not exprest ) all the parts and pertinents of the fee. and therefore any disposition , de presenti , in fee , is valid as to that part of the infeftment , although the disposition contained an obliegement to grant charters ; yet the not granting there of doth not prejudge . and if charters be granted relative to prior obliegements , yet the charter is good , without necessity to prove these . nor will it be sustained , for the superiour or any competitor , that if the prior obligation , disposition or contract were produced , it would be found conditional , or have clauses in favours of the superiour , or that competitor , whether generally or particularly alledged : but if these were lost , the charter is sufficient , and no more is understood to be in the real right , then what is contained in the charter ; yea , though the charter bear , according to the provisions and conditions contained in such a contract , disposition , or bond , which may import that the superiour by granting the charter without these , hath not past from them ; and therefore , he may insist upon them as personal obliegements , and the vassal will be oblieged to produce the same , ad modum probationis , by exhibition as an incident diligence , whereupon he must depone , whether he has them or had them since the citation , or did at any time fraudfully put them away : but if without fraud , they be lost , the charter is sufficient , and in no case doth require the production of any former ground . precepts of clare constat , are also sufficient , seing they contain a precept to infeft such a person as vassal , which implys , the dispositive . will of the superiour ; and therefore , is valid in place of a charter from its date , albeit it 〈◊〉 no effect against singular successors , as to that vassals predecessors rights , which must be instructed by the rights themselves , and not by the superiours acknowledgement . and for the same reason , other precepts of seasine , not relating to particular charters or seasines , but either simple , or bearing secundam cartam 〈◊〉 , are sufficient , although these charters be never granted : but there will be only understood a proper ward-holding gratuitous , without 〈◊〉 , extending only to the heirs of the vassals body , but not reaching to 〈◊〉 or ascendents , unless the precept express or insinuat an onerous title , 〈◊〉 vendition , excambion , &c. but since write became to be an essential solemnity of fees , the superiours 〈◊〉 dispositive act must be in write , but his preterit declaratory act , acknowledging such a person and his predecessors to be vassals , and have the fee , 〈◊〉 his obliegement to grant the fee , though never so express , which relates but to a disposition , de futuro , will not supply a charter , though clede with 〈◊〉 possession , or having seasine by instrument , bearing to be propriis 〈◊〉 , though by these the superiour may be compelled to grant charters 〈◊〉 and compleat , bearing expresly , all the ordinar clauses in such rights : yet 〈◊〉 〈◊〉 cases , adminiculation of a seasine will suffice , as in the liferents of 〈◊〉 , being proportional , or in very ancient rights ; or where in competition no better right is shown . much less is it necessary to have formal and ample charters in the best style upon parchment , in latine , sealed and subscribed , albeit vassals are oblieged to accept no other , and the nottars , drawers of such charters may be deposed and censured yet the right will not be annulled , or postponed to posterior , more formal and solemn rights , for want of these formalities . . the formal tenor of charters is different according to the several kinds on infeftments , whereof some are original infeftments , by which the fee was first constitute , and therefore are most plain and simple , containing the dispositive clauss , relating or insinuating the title or original of the right , if it be an original charter from the king , it begins with his royal title , carolus dei gratia , &c. and bears the consent of the thesaurer , and commissioners for the thesaury , and bears a narrative of the motives , inducing the king to grant the same ; and if it be ward or blench , in burgage or mortification , it bears , damus , concedimus & in perpetuum confirmamus : but if it be a feu charter , it bears , arendamus , locamus in emfeuteosin dimittimus & in perpetuum confirmamus ; and then follows the clause , tenendas , and the clause , reddendo , which if it be ward , bears , servitia debita : if blench , the particular blench duty , nomine albae firmae : if feu , the particular feu duty , and sometimes the duplication thereof , and the marriage of the heir : if burgage , it bears , servitia burgalia : if in mortification , it bears , preces & supplicationes . and ordinarly warrandices , which , though very ample hath no effect ; for if the right prove invalid , there is no action against the king , who doth always dispone , plenissimo jure ; but periculo petentis , especially when he dispones as supream superiour , by the right of his crown : but if he dispone for a price or cause onerous , as for sums of money , or by excambion . lands acquired by him , being no part of the revenue of the crown , or annexed property ; in these , utitur jure privato , and his warrandice may have effect , as to his privat patrimony , and not as to the patrimony of the crown . charters granted by the king of fees by progress , are either upon resignation or by confirmation , or upon apprizing or adjudication , which differ from original charters , in their several specialities , as chartersupon resignation , after the dispositive clause , bear the conveyance , that the lands or others were resigned in the hands of his majesty , or his commissioners , by a procuratory of resignation a-part , or in a disposition or contract expressing its date in favours of the acquirer , his heirs or assigneys , whereupon resignation being made in the resigners life , the charter will be granted to him or to his heirs , served generally , or to his assigneys , having right by assignation to the procuratory of resignation . charters of confirmation do deduce the right to be confirmed , which , if it be a charter a se , bearing , to be holden from the disponer of the king , and expressing the tenendas & reddendo . the kings charter doth in the like style , generally relate the charter to be confirmed , and then ratifies , confirms , and approves the same in all the heads and articles therein , and then subjoyns the tenor and words of the charter . these charters of confirmation whensoever granted , are drawn back to the date of the charter confirmed ( which were absolutely null till confirmation ) unless there be a medium impedimentum , as a prior infeftment by confirmation , or upon resignation by the superiour ; yea , though the infeftment by confirmation be after the death of the granter of the charter to be confirmed , if the superiour do confirm , it is drawn back , and will import the superiours passing from any casuality , falling by the death of the author , unless these be reserved , wherein the neglect of the kings officers may not be imputed in his prejudice ; albeit craig relates a case betwixt kirkaldie of grange , and ker in the contrary , l. . dieges . . and adds this reason , that the former vassal granter of the charter to be confirmed , dying before confirmation , it might be truely said that he dyed last , vest and seased as of fee ; which , the subsequent confirmation cannot make false , yet this being fictione juris ; these fictions may do much more then this change , and there is nothing more frequent , then to confirm very old charters or dispositions . there is another kind of charter of confirmation by the king , of charters granted by his vassals to their sub-vassals , not to be holden a se of the king , but de se of the disponer . the effect of which confirmation is to secure the acquirer against the forefaulture , or recognition of his superiour . charters by the king upon appryzing or adjudication , do either narrate the appryzing or adjudication , before the dispositive clause : or otherways after the dispositive clause , by the clause beginning , quae quidem terrae perprius haereditarie , pertinuerunt , ad a. b. &c. which clause , is also next to the dispositive in charters upon resignation , and doth express the resignation made either personally by the vassal , or more ordinarly by his procuratory , and then bears , the procuratory of resignation and the date thereof : but if it be upon appryzing or adjudication , it bears , that the lands and others in the charter were appryzed or adjudged from the former vassal or his apparent heir , lawfully charged to enter heir in special ; and expresses the date of the appryzing or adjudication , and the sums therein-contained , and bears , in the reddendo , the duties and services , due and accustomed before the said appryzing or adjudication . the kings charters bears as witnesses , several officers of state , and director of the chanclery . the kings charters must pass in exchequer upon a signature signed by the king , or by his thesaurer or commissioners of the thesaury , and a quorum of the exchequer ; which signature is recorded in the books of exchequer , and then passeth under the signet , and then under the privy seal , whose warrand is the signature , and last under the great seal . charters by subjects in most things agree with the kings charters , but differ in these points , that they begin not with their titles , but thus , omnibus hanc cartam visuris vel audituris ; and then follows the superiours title or designation . and in original charters , the special cause is narrated , as for implement of a certain contract , disposition or obligation , in them also the warrandice is more particularly expressed , because it is effectual according to its tenor. in the charters granted by subjects , the precepts of seasine were ordinarly ingrossed , and now by the late act of parliament , . cap. th . precepts of seasine are appointed to be insert in the kings charters , which before could only pass by a write , under the quarter seal , or testimony of the great seal . in all charters , both by king and subjects , the clause tenendas useth to be insert , expressing the lands , or others by their ordinary designations , and then adding , per omnes 〈◊〉 metas antiquas & divisas , pro ut jacent in 〈◊〉 & latitudine , cumdomibus , aedificiis , boscis , planis , moris , maresiis , viis , 〈◊〉 aquis , rivolis , stagnis , pratis , pascuis , & pasturis , molendinis & multuris , & eorum sequelis , aucupationibus , venationibus , piscationibus , petariis , turbariis , cuniculis , cuniculariis , columbis , columbariis , hortis , pomariis , fabrilibus , brasinis & brueriis , genestis , sylvis , nemoribus & virgultis , lignis , lapicidiis , lapide & calce , cum curiis & earum exitibus , herezeldis , 〈◊〉 , & mulierum merchetis , libero 〈◊〉 & exitu , ac cum omnibus aliis libertatibus , commoditatibus , proficuis , astamentis , ac justis suis pertinentiis quibuscunque tam non nominatis quam nominatis , tam subtus quam supra terram , procul & prope ad praedictas terras spectantibus , seu spectare valentibus , quomodolibet in futurum , libere , plenarie , quiete , integre , honorifice , sine aliquo impedimento , revocatione , contradictione , aut obstaculo qualicunque . in the charters by the king or subjects , there may and useth to be insert a clause , de novo-damus , which doth dispone the fee , as by an original right , in case the disponers right should be found defective , and to secure against any title proper to the superiour , either as to the property , or any servitude or casuality ; which clauses use to be very full , and to express all nullities , title , or interest in the superiour , with supply of all defects ; and bearing all the particular casualities , with which the fee might be burdened , which are effectual , and extended to the full against subjects . but as to such clauses in the kings charters , they are fully extended as to all interest in the king , relating to the property , such as nullities , forefaulture recognition , purpresture , disclamation : but the general words , pro omni jure titulo & interesse , are not extended against the king , to any casuality of superiority , not reaching , but burdening the property , except such only as are particularly exprest ; and therefore , a novo damus , in a bishops charter from the king , disponing a patronage , pro omni jure , was found to give the bishops successor right to that patronage , though it was a laik patronage , without necessity to instruct that the bishop had any pretence of a title thereto before , but that the novo damus was as effectual as an original right , february . . sir john scot of ancrum contra arch-bishop of glasgow . but a novo damus by the king , bearing , pro omni jure titulo & interesse , and expressing ward , found not to exclude the kings donator from the marriage , as being a casuality differing from the ward , which useth to pass by a several gift . day of july . lord hatton contra the earl of northesk . the reason of the different extention of the clause , de novo damus , as to the king and subjects is , because subjects are presumed to take special notice of all clauses , that they insert in their charters , which in dubio , are interpret , contra proferentem . but these clauses do more easily pass by inadvertence in exchequer ; and therefore , their gifts are more regulat by their acts , then by the common style thereof . for though gifts of ward comprehend non-entry , ay and while the entry of the righteous heir : yet by act of exchequer , it is only extended to three terms after the ward , though the old style be still continued . charters do also comprehend several conditions and provisions , of which hereafter . and some charters do express a bounding , which is ordinary in these within burgh . and some do express a particular enumeration . and some have only the general name of barony , or tenendry , or some other common designations , under which , there may be particular designations comprehended . and some charters bear , infang-thief , outfang-thief , pit and gallows . these charters , or other writes in place of charters , though they do never so fully comprehend the dispositive will of the superiour , yet they never become a real right , till they be compleated by seasine , which imports the taking of possession for seasine and seasure are from the same original , signifying laying hold of , or taking possession : and disseasing is dispossession ; and therefore , it is a needless question , whether seasine or possession were distinct , and which were most effectual ; for till the solemnity of instruments of seasine was introduced to accomplish the real right of fees , possession was necessary to be joyned to the disposition : which possession might either be natural by actual inhabitation , manuring or stocking the ground , positione sediuni : or might be civil , by uplifting the fruits and duties : or it might be symbolical , positione pedum , by entering upon the lands as vassal upon the superiours warrand . but if this symbolical possession were retent a possessione naturali , the superiour disponing to another who first attained the natural possession , be would have been preferred to the symbolical possession , as being suspect and simulat , retenta possessione : therefore , till the time of king james the first , any charter , disposition , or precept from a superiour to a vassal , mentioning his heirs , or an heretable right , with true and real possession , without simulation , was sufficient to compleat the fee. so a charter with natural possession was sustained , being in the raign of king robert the second , june . . and also before the raign of king james the second , hope , seasine , earl of mar contra bishop of aberdeen . . but king james the first having been long detained in england , being taken in his voyage coming home from france , did thence bring in the solemnity of seasines by the instrument of a nottar , about the year , . as craig relateth , l. . dieges . . near the beginning , and yet sayeth , that long thereafter , even near to his time , the bailies seal upon the superiours disposition , charter , or precept , was sufficient to instruct delivery of possession . neither was there necessity in any case to prove the delivery , or the superiours entering the vassal in possession , but that was presumed from the possession it self ; and therefore , it needs not be debated how the vassal entered in possession , or what warrand the bailzie had to give him possession , or what warrand the person who received the possession for the vassal had , as his procurator or acturney ; for if the vassal were in the natural and civil possession ; all these powers were presumed . neither were precepts of seasine , or acturneys then in use ; for as this solemnity of an instrument of seasine was introduced from england , so was the name of acturney , which is frequent there , but seldom usedhere , but in cases of seasine . after instruments of seasine became in use , they were not only sustained as the mean of probation , that possession or seasine was given or taken , but they were the necessary solemnities to accomplish the right which could not be supplied by any other mean or probation , though the superiour with a thousand witnesses , should subscribe all the contents of a seasine . it would be of no effect to make a real right without the attest of a nottar , in which sense , the vulgar maxime is to be understood , nulla sasina nulla terra , which is not only necessary to the first vassal , but must be renewed to all his heirs and successors ; although by the custome of france , the vassal being once infeft , his heirs need not be infeft , but do continue to possess by his right , as the heirs of tacks-men do with us : but every heir must be infeft in fees , otherways , if they die uninfeft , they never attain the real right , but only a possessory title to the fruits and rents , which will belong to their executors , in so far as unuplifted from their predicessors death , till their own death , or renunciation to be heir , and will be affected for their proper debts , which will not affect the heritage , or the next heir entering , who must enter to the defunct , who died last infeft , and will be lyable for his debts , but not for the debts of his appear and heir , who was never infeft . . let us then consider the formal tenor of an instrument of seasine and the meaning thereof , and then consider the essentials and necessary requisites thereto , and how far unformal seasines have been sustained . a formal seasine is the instrument of a nottar-publick , bearing the delivery of symbolical possession , by the superiour or his bailzie , to the vassal or his acturney , by delivery of earth and stone , and other symbols accustomed upon the ground of the fee , which should contain the name of god , as its initial words , in dei nomine , amen , that may keep the nottar in remembrance of his faith and trust , deterring him to take the name of god to a falshood or lie . secondly , it should bear the date by the day , moneth , and year of god , and was accustomed to have the indiction and name of the pope , which since the reformation hath not been in use : but it should contain the name of the king , and the year of his raign . thirdly , it bears , the appearance of the vassal , or his certain aucturney , which is sufficiently instructed , by having of the precept of seasine in his hands , which is but presumptio juris , and doth not exclude a contrary probation , especially as to the heirs of the first vassal , who , by taking infeftment , becomes lyable for all his predecessors debts ; and therefore , if the superiour should grant a precept of clare constat , the bearer whereof , as aucturney for the appearant heir , taking seasine , would involve the appear and heir in all his fathers debts ; and therefore , it may be proven by the superiour and aucturneys oath , that the precept of seasine was without warrand from the appearant heir , and so was fraudulent and collusive , to involve him in his predecessors debts , in an overburdened and hurtful succession . fourthly , it must bear the delivery of the precept of seasine to the superiour , if he be present , or in his absence , to his bailzie , whose warrand is secured , because there is a blank left in the precept for his name , in which blank , any persons name being filled up , he is sufficiently authorized as bailzie in that part , specially constitute . fifthly , it bears , the bailzies accepting of the precept , and delivering of it to the nottar in presence of the witnesses . sixthly , it must bear the nottars reading of the precept , and exponing it if it be in latine , and then the words of the precept should be ingrossed . seventhly , it bears the superiour or the bailzies delivering of earth and stone of the land to the vassal , or to his aucturney , bearer of the precept ; or delivery of any other accustomed symbol , as a penny for an annualrent , a net for fishing , a clap for a miln . eighthly , it bears the aucturneys requiring instruments . ninthly , it must bear , that these things were done upon the ground of the land , or other hereditament , and the hour of the day , before two witnesses , at the least , required thereto , and last , the attest of the nottar , bearing the auctority of his creation , and that he was present with the witnesses , & vidi , scivi & audivi , that the things contained in the instrument , were so done as is exprest therein , and that he took a note thereof , and thereupon drew a formal instrument , and insert the same in his protocol , whereunto are adjoyned his sign , his motto contained in his commission , relating to his faithfulness and trust , and his name or the initial letters thereof . . if any of these be omitted , the nottar may be exauctorat and punished by the lords ; but the essentials are much sewer : yet the seasine must contain the delivery of symbolical posession , by the superior or his bailzie to the vassal , or his acturney upon the ground of the land , or other tenement in presence of the nottar and witnesses , with the date and subscription of the nottar . but the delivery of the symbol of an office , having no particular place or ground , is sufficient any where , as a batton for a military office , or a scrol , book , or cape for a civil office. but where the fee hath a particular ground or place , there it must be taken upon the ground , and it will not be sufficient to be in view of the ground , yet law or custom may otherways order in case of necessity : as the infeftments of lands , in nova scotia , were appointed to be taken at the castle-hill of edinburgh . and when lands are rightly unite or erected in barronries , seasine taken upon any part thereof sufficeth for the whole ; and without union , seasine taken upon any part of the lands , will serve for all the lands in the infeftment lying contigue . craig relates , that a seasine was found null and false , where it bore , these things were done upon the ground of the land , albeit the parties had put , of the ground of the land on which they stood , within their shooes , but were not upon the fixed ground thereof . the instrument of seasine must be taken by a publick nottar , lawfully authorized , at the least so holden and repute ; for though the nottar be deprived , it will not vitiat his instruments , taken bona fide , by persons who knew not his deprivation , till it be commonly known , or letters of publication intimat at the mercat cross. a seasine was also found null , because it wanted these words , vidi , scivi & audivi , hope , seasine , primrose contra in ancient rights , or where there is not a more solemn infeftment , seasines have been sustained , though with considerable defects , as where the seasine bore not delivery of earth and stone , but only actual and real seasine , june . . earl of wigtoun contra earl of cassils . but not where the seasine wanted delivery of earth and stone , and the name of the aucturney , hope , seasine , laird of lie contra earl of callender . a seasine was sustained , though it did not repeat the precept , and did not bear delivery of earth and stone , but only of the ground of the land , yet was preferred to a posterior formal seasine , taken after the matter was litigious , october . . lady lambertoun contra laird of polwart . and a seasine , being the title in a reduction , was sustained to infer certification , though it bore not delivery of earth and stone , nor instruments taken , nor the hour , nor being conform to the warrand ; but bearing only , according to the custome in such cases ; but the defender thereafter , having made a production of his right , certification was not granted , contra non producta , march . . laird of lie and stuart contra earl of lunderdail . aand seasine of land and a miln , was sustained , bearing delivery of earth and stone of the land and milne , with all solemnities requisite , march . . laird of swintoun contra vassals of dumfermling . . seasines being but the assertions of a nottar , do not prove or instruct a real right , unless they be astructed by a warrant or adminicle in write , except that it be against tenents at the instance of their master , who is known to be in possession : or that prescription hath run by one or more subsequent seasines , and years peaceable possession . and albeit the most ordinar warrant of seasines be the superiors precept ingrossed or related to in the seasine , yet after years possession , there is no necessity to produce precepts of seasine , procuratories , or instruments of resignation , even in the case of reductions of infeftments for want of these , parliament cap. . in which there is not required peaceable possession , neither yet continued possession , as is required in the act of prescription , so that interruptions as to this point , will not alter the case : but there is no necessity to produce any more for instructing an infeftment , but the seasine and a warrant thereof , such as a precept of clare constat , a precept out of the chanclery , a disposition or contract of alienation , according as the seasine doth relate to the one or the other . as if the seasine bear , to proceed upon a precept contained in a charter ter , disposition , or contract of alienation , these must be produced specifice as they are related ; not only passive to defend in reductions , but active , as titles of reductions , declarators , and all other processes , except against tenents or naked possessors , or where prescription hath run , because the charwhen it is related to , is a part of the investiture , making up the real right : and therefore ( as hath been now shown ) § . . there is no necessity to produce a disposition , contract of alienation , or bond , though the charter relate thereto . but if the seasinebear , to proceed upon a precept contained in a disposition , contract of alienation or bond , then these are parts of the infeftment , and make up the real right , and so must be produced , that the defender may except or defend upon any clause therein contained , in favours of himself , his predecessors or authors , unless the infeftments be ancient , and clede with long possession ; in which case , it is like the lords would extend the foresaid statute , and would sustain a disposition , contract or bond , as a sufficient adminicle of the seasine , though it related not thereto . and albeit this statute mentions only , that charter and seasine shall be sufficient , under which a disposition or contract of alienation must be comprehended when the seasine is immediatly taken thereupon , and not upon a formal charter , for then they are the real charter : yea , it is not like they would reject a bond , obliedging to grant such infeftment , albeit it do not de presenti dispone , as a sufficient adminicle to sustain a seasine , where they had been years possession , although prescription was not compleated by immediat subsequent seasines , or uninterrupted possession , the party making faith , that he did not keep up , or conceal any other part of the investiture , which would sufficiently take off the presumption of fraudful concealing or away-putting the immediat warrant of the seasine , which might afford defences to the other party . for even in a recent case , of the infeftment of a wife in life-rent , her seasine was sustained upon production of her contract of marriage , albeit the seasine proceeded upon a bond granted for the same cause , january . . mr. george norvil advocat , contra margaret sunter , where nothing was alledged of long possession . see what was found november . . clappertoun contra hoome , hope , seasine , murray of philliphaugh contra schaw , gray contra finlayson , there could be less question if the seasine related to a precept apart , and did not bear , whether the precept proceeded upon a charter , disposition , alienation , or bond , for then the production of any of these , would adminiculat the seazine . seasines within burgh , for serving of heirs by hesp and staple , by the immemorial custom and priviledge of burgh , being given by the town-clerk , do prove sufficiently both the propinquity of blood , that the same was cognosced and seasine given accordingly , without necessity of any warrand or adminicle , but in seasines of original rights , of conveyances to singular successors , will not be sustained by seasines by the town clerk , without adminicles as to tenements within burghs , as was found in an infeftment from a father to his son , bearing to be upon the fathers resignation , february . . francis irwing contra corsan , june . . william mitchel contra thomas cowie . seasines propriis manibus , when either the superior himself doth give seasine to his vassals acturney , or when the superiors baily by his precept , gives seasine to the vassal , himself being present , and accepting ; or when the superior immediatly gives seasine to the vassal , in these cases , the nottars warrant is sufficiently instructed by the seasine , and by the disposition , contract of alienation , or bond : or when the seasine is propriis manibus secundum cartam conficiendam , if a charter thereafter made beshown , as a seasine propriis manibus , by a father to his son , reserving the fathers liferent , was found valid against a second wises infeftment , granted for a competent tocher , being adminiculat by a bond granted by the father of the same date , with the seasine , obliedging him to warrant the same , february . . buchan contra tait yea a seasine propriis manibus by a superior , containing resignation , accepted by the superior , and immediatly seasine given , propriis manibus was sustained without any warrant , subscribed by the superior , but by the vassals disposition , containing procuratorie of resignation , there being no more solemn infeftment in competition , januarie . . john young contra thomson . but as to seasines propriis manibus by husbands to their wives in contemplation of marriage , either before marriage , where marriage followed , or after marriage , having no adminicle but the marriage ; the lords according to the different cases , have sometimes sustained them when they were suitable to the parties , and not exorbitant , and where the question was only with the husbands heir , nov. . . clappertown contra hoom. june . . relict of wallace of galrigs contra his heir , in which case it was instructed , that about that time the wife had disponed to her husband her joynture by a former marriage . but such seasines are easily improven , if they be not asserted by the witnesses insert . as in the last case , the heir insisting in improbation , there being four witnesses in the seasine , two of them deponed they were not witnesses thereto , the third remembred not , the fourth was positive for it , and the nottar offered to depone that it was true ; yet having no adminicle , his oath was not taken , and the seasine was improven ; but if there had been an adminicle , the nottar and one of the witnesses being positive , the seasine would not have been improven : for where there is a warrant mediat or immediat , providing a seasine to be given , quid fieri debet facile 〈◊〉 . and therefore the witnesses not remembring , would hardly improve such seasines , unless their testimony were positive , giving special circumstances of their remembrance , as being in such another country or far distant place at that time , if the truth of that were otherwayes astructed . but the general denial to be witnesses could import no more but non memini : and therefore an adminicle in write , with the protocol or oath of the nottar , if he were alive , and especially if possession followed for some time : these would stronglier approve , then the not remembrance or general denyal of the witnesses insert would improve . but this dipping upon a general question , de side instrumentorum , we shall say no more of it in this place , nor of the admission and qualification of nottars , as to which , craig relates the customs of france , which were not then , nor have not yet been here allowed ; but certainly more exactness ought to be in the admission of nottars , not only as to their skill , but as to their reputation of honesty and fidelity , and the least want or weakning of these should turn them out . for the introduction of the solemnity of the instruments of nottars , was not only because of old few could write , and the impression of seals were easily imitat : yea even such rude subscriptions , there being some in justinian's time , who could so artificially imitat anothers hand write , that himself could not know it , or durst swear it was not his write . and therefore he introduced two remeeds , that private writes should not prove by the subscription of the party , unless that there were three subscribing witnesses , knowing he parties contracters ; or that there were three witnesses who depone anent the truth of the deed , or otherwayes , that writes were made in publick by a publick person , which at first was only done judicially , but thereafter extrajudicially by a nottar-publick ; but our custom hath returned to private write , and 〈◊〉 not the instruments of nottars , but where they are adminiculat by 〈◊〉 , 〈◊〉 in the case where parties cannot write : and then in matters of importance , two nottars and four witnesses are necessary by special statute . but this is not extended to seasines , but only to the subscriptions of nottars for parties , february . . buchan contra tait , julie . 〈◊〉 . bishop of aberdeen contra viscount of kenmuir . yet in some cases of small importance , instruments of nottars are probative : and in all cases where witnesses would prove , it doth much fortifie the same , that they were witnesses required , and instrument of a nottar taken thereupon . for then the instrument of the nottar , astructed by the witnesses insert , make a strong probation . to return to seasines propriis manibus by husbands to wives without warrand or adminicle in write , they are not generally probative , except in such cases as have been now exprest , hope , seasine , bell and morison contra thomson , laird of coldingknows contra dam helen hereis . . but for the further securing of infeftments and land-rights , that excellent statute which before was attempted , was at last perfected , par. . cap. . whereby all seasines , reversions , regresses , bonds or writes for making of reversions , and regresses , assignations thereto , and discharges thereof , renunciations of wodsets , and grants of redemption , not being registrat in a peculiar register , appointed for that end , or in case of consigning renunciations , and grants of redemption in process , within dayes next after the decreet , ordaining the same to be given up to the parties having right thereto , or at least within dayes after seasing taken of the lands or rights , to which the reversions relate . it is declared , that the saids seasines and other writes , shall make no faith in judgement by action or exception , in prejudice of a third party , who had acquired a perfect and lawful right to the saids lands and heritage , without prejudice to make use of these rights against the granter and his heirs : but there are excepted reversions contained in the body of the infeftment , and all seasines , reversions , &c. of tenements within burgh . . and to make land-rights yet more secure , because the former act did not require registration of instruments of resignation in the superiors hands , adremanentiam , whereby purchasers were not secure , but that the lands acquired by them , might have been resigned or renounced to the superior , whereby their authors fie became extinct , without necessity of new infeftment , being consolidat with the superiority , whereby the superiors infeftment carryed both superiority and property . therefore , instruments of resignation not being registrat are declared null , yet with exception of tenements holding burgage , and therefore a seasine within burgh was sustained , though not found in the towns books , june . . mr. robert burnet contra swan , february . . francis irwing contra corsan . upon consideration of this case , the lords by act of sederunt ordained the burrows , to take sufficient caution oftheir town clerks present , and to come to insert in their books , all seasines given by them of the tenements within burgh and all reversions , or bonds for granting reversions , assignations thereto , and discharges thereof , renunciations and grants of redemption , and that within . dayes after the giving of seasine , or presenting to them of the reversions or others foresaids , and that under the pain of the damnage of any party acquiring bona fide for onerous causes by such latent rights , though prior , declaring that they will hold all such seasines , reversions , &c. to be given hereafter , and not insert in the towns books in manner foresaid , to be latent and fraudulent , keeped up of design to insnare lawful purchasers . but there is now an act of parliament , requiring the inserting of seasines within burgh , in the town-clerks books in the same manner , and under the same certifications as is required to the registration of seasines without burgh . . and for the further security of land-rights , because apprysing , or adjudication , with a charge of horning thereupon against the superior , maketh for some time , a real right ; therefore , an abbreviat of apprysings contained in the allowance thereof , written on the back of the same , and signed by two of the lords , was ordained to be registrat in a particular register for that purpose , within . dayes after the date of the apprysing ; with certification , that any other apprysing , though posterior in date , yet first allowed and registrat , shall be preferred , parliament . cap. . which is extended to adjudications , parliament . cap. . but this relates only to the new form of adjudications then introduced in place of apprysing . but for the old adjudications , upon there nunciations of heirs or implement of dispositions , neither statute nor custom have yet cleared , whether these will be effectual against singular successors from their dates , or from the charge against the superior , or only from the seasines thereupon ; which , as all other seasines , must be registrat . and if the lords do sustain these from the charge , it will make a defect in the security of land-rights , till it be supplied by act of parliament . and for further security of land-rights , because they might be reduced upon inhibition , or interdictions ; therefore these , if not registrat , are also null . and in respect horning , continuing unrelaxed year and day after the denunciation , the superior hath the fee , during the life of the vassal denunced , therefore horning , if not registrat , is also null , and the act of prescription excludes all prior rights , preceeding . years , unless they have obtained possession , or done digence therefore by interruptions , which must be repeated every five years , or else they are null , and must also be execute by a messenger ; so that where before a citation made interruption , which continued for forty years , which might much insecure purchasers , they can now last but five years , in which short time the noise thereof may readily reach purchasers , so that if purchasers get a progress of infeftment for fourty years , he may by the registers know it there be any real right that can affect the fee within that time , and hath no more to enquire , but as to interruptions within five years , which if the lords appoint to pass only upon bills , it may be found at the signet : so that upon the whole matter , no nation hath so much security of irredeemable land-rights as we have . it is true , redeemable rights are not so secure , because they may be evacuat by order of redemption , which proceed by instruments of premonition and consignation , which require no registration ; and therefore , purchasers of appryzings or adjudications , during the legal reversion , are in hazard of any order of redemption , or summonds for count and reckoning ; and likewise , these who purchase wodsets or infeftments of property , or annualrent for security of sums , run the hazard of satisfaction and payment of these sums by intromission , or otherways , wherein there is little inconveniency ; for no man should purchase a redeemable right , without consent of the reverser , but upon his hazard ; or if there be any reversion , reservation , or real burden in his authors right , sibi imputet , it is his fault and negligence , if he did not see it , and secure himself against it . the question may occur here , if the keper of the register of seasines do according to the custom , mark the seasine registrat , and attest the same by his subscription , and yet by negligence or fraud , shall not insert it in the register ; whether in that case a purchaser , bona fide , for causes onerous , though infeft thereafter , will be excluded by that prior infeftment , marked by the clerk , not recorded , though nothing hath been observed in this case : if seasines marked registrat , though not found in the register , were found sufficient against singular successors , purchasing thereafter , the designe and tenor of this statute would be eluded ; for the statute bears , if they be not registrat , ( which must import , there being insert in the register ) they are null ; and therefore , though the keeper of the register hath attested such seasines to be registrate , yet truly they are not registrat . and no purchaser could be secure by inspection of registers , if a false attest of a clerk could exclude him , who oftimes is insolvent . but the not inserting of seasines within burgh , in the towns books , doth not annual them ; seasins within burgh being a total exception from the whole act ; for registration and the statute being defective in that point , the lords did very fitly supply it by these two remeids ; that the seasins within burgh , not being in the towns books , should not be found null , yet they might be reduced as latent and fraudulent : and if the town clerks were put to find caution for the damage , real rights within burgh would be fully as secure as these without burgh . . seasines , as all other instruments , must have the attest and subscription of the nottar , giver thereof , bearing the names and designations of the witnesses insert , whereof two will be sufficient , because the seasine must have a warrand by a subscribed write , by the author of the infeftment , and so needs not two nottars , and consequently requires not four witnesses , as other principal writes of importance , subscribed by nottars , july . . bishop of aberdene contra viscount of kenmure . neither was a seasine found void , because taken in the night , nothing of latency or fraud being qualified , but possession conform , margaret arnot and patton her spouse contra mr. archibald turner . . if a seasine be only extracted out of the register of seasines , it will not be sufficient , because that register is only for publication : as also the register of hornings and inhibitions , and not for conservation , for the keeper of the register doth not keep the principal seasines , but gives them back marked : but if the principal seasine marked as registrat , be wanting , if the nottar who gave it be alive , he may renew it out of his protocol , and the keeper of the register of seasines may attest it registrat , upon the day mentioned in the register ; and therefore , the lords upon supplication , ordains the keeper of a register , so to mark a seasine , january . . sir andrew ramsay supplicant . . but if the nottar who gave the seasine be dead , there remains yet this remeid , that a transumpt may be made upon production of the protocol and citation of the author , or his heirs , or any other party having interest ; which transumpt is sufficient in place of the principal seasing , and may bear , both the transumpt of the protocol , and of that part of the register , where the seasine was registrate . but the instrument of a clerk , containing the tenor of a seasine will not be sufficient without citation of the parties . if both the principal seasine and the protocol be wanting , the tenor of the seasine may be proven upon citation of the same parties , as in a transumpt , if there be sufficient adminicles in write , and witnesses who saw the seasine , wherein the extract of the seasine out of the register is a good adminicle . seasines taken out of the towns books , not by the town clerk who gave the seasine , but by his successor , will not serve for a principal seasine ; the towns book being but the protocal of the town clerk ; and therefore , either must the towns book be produced , that the seasine may be transumed , or commission granted for inspection , or collation , which being returned , was found to suffice as a transumpt , february . . francis irving contra corsan . . infeftments do sometimes expresse the meithes or marches of the lands and tenements , which thence is called a bounding infeftment , giving right to all within the bounds , if the giver of the charter had right ; or if the vassal have by that infeftment had peaceable possession till prescription ; otherways bounding charters prejudge not , par. . cap. . yet prescription will adject that which is within the bounding to another tenement , which will not be elided by possessing the major part of that tenement : but no prescription can give right to what is without the bounding , as part and pertinent , novemb. . . walter young contra bailzie carmichael . but where there is no bounding , possession clears the parts and pertinents of every tenement ; and in competition , where any ground is claimed as part and pertinent of several tenements , witnesses are allowed to either party , for proving the possession and interruptions , unless it be alledged that that ground is separ 〈◊〉 tenementum , having a distinct infeftment of it self , which will exclude the alledgeance of part and pertinent , if the several infeftments be not excluded by prescription , as was found in the said case , young contra carmichael . but though the one infeftment contain the ground in question , per expressum , in the enumeration of the parts of a barronry or tenement : and though the other infeftment contain no enumeration , or in the enumeration , mention not the ground in question , but the same is alledged to be part and pertinent comprehended under the common designation , or under some of the parts enumerat , if both flow from one common author , as original rights , the first is preferable , otherways , both will be allowed witnesses for proving possession and interruption , & in paricasu aut dubio , the express infeftment will be preferable . . but the main question is here concerning infeftments holden of subjects , not being past upon the granters resignation , by the superior , or the superiors confirmation , or by his obedience upon decreets of appryzing or adjudications , which therefore are called base infeftments , and private infeftments , because they proceed in a more private and ignoble way , being done by the granter and receiver thereof , without the interposition of the superiour . the doubt is , whether such be compleat real rights , carrying the property of the ground by the charter and seasine only , or not until possession of the hereditament be obtained : the ground of this distinction betwixt infeftments , and of the doubt as to base infeftments , is from the act of parliament , . cap. . whereby it is clear , first , before that act , infeftments holden of the disponer , without resignation or confirmation , were valid without possession , and preferable to all posterior infeftments , though proceeding upon resignation , or by confirmation , for it is for remeid of this , that this statute is enacted . secondly , by the letter of this statute , posterior infeftments upon resignation , or by confirmation , are only preferred to prior private infeftments , when the obtainer of the posterior infeftment , brooks the lands peaceably , by labouring , manuring , and uptaking of the mails , profits and duties , and so are known heretable possessors thereof , year and day . and when such infeftments are for causes onerous , or do contain or import warrandice ; neither is there any thing mentioned in the statute , as to the competition of infeftments , upon appryzing or adjudication , with prior base infeftments , nor of the competition of one base infeftment with another : yet custome since that statute , hath cleared and determined the competition of publick and base infeftments , and hath restricted this statute in some points , and extended it in others . first , custom hath preferred all publick infeftments upon resignation or confirmation , or upon appryzing or adjudication to base infeftments , though prior , if the base infeftment hath lain out of all kind of possession ; and likewise , hath preferred posterior base infeftments , first clede with possession to prior base infeftments without possession , especially in consideration , that such base infeftments are fraudulent or simulat , retenta possessione ; for the retaining of possession is a pregnant ground of simulation , not only of infeftments , but many other rights , as when moveables are disponed and delivered , but presently taken back , and the natural possession continued in the disponer , though instruments be taken upon the delivery ; yet other dispositions or legal diligences , attaining and retaining possession are preferable , because the other dispositions are presumed fraudulent and simulat . and gifts of single escheat or liferent escheat , are presumed to be simulat , if the rebel or his conjunct and confident persons , be long suffered to retain the possession ; and therefore , base infeftments , retenta possessione , are also presumed fraudulent and simulat , and that not only presumptione juris , by this and other statutes ; but presumptione juris & de jure , admitting no contrary probation : for certainly , base infeftments , may be , and oftentimes have been without simulation , and for onerous causes ; and yet these have never been sustained or admitted to probation , to validat such base infeftments : and albeit long retention of possession may raise presumptionem hominis , that publick infeftments are simulat or without cause onerous , yet that presumption hath not been owned by law. secondly , custom hath preferred posterior base infeftments , attaining possession or using diligence to attain it , to prior base infeftments , not attaining possesion , nor using diligence to attain it : and albeit the superveening statute for registration of seasines be designed for publication thereof , that purchasers thereafter may not be insnared or disappointed , whereby it might seem that the difference betwixt privat or base infeftments , and publick infeftments , might have been laid aside , since the act for registration of seasines , whereby the uncertainty of real rights , by proving base infeftments , cled with possession by witnesses ( wherein our law is so justly jealous and cautious , that they are not admitted in cases where write uses to be adhibit ) might be avoided : yet the preserence of publick infeftments , to prior base infeftments , not cled with possession , being fixed by custom from this statute , before the act for registration of seasines , by the space of threescore seventeen years , hath been still continued . and such infeftments as are without consent of the superiour or order of law , have still retained the name and nature of base infeftments ; and albeit the alledgeance useth sometimes to be proponed against base infeftments , that they are null , not being cled with possession , yet it is no simple nullity , but only a preference of a more solemn right , for pursuits for mails and duties , removings , yea , and reductions are sustained thereupon , and will not be excluded upon pretence of want of possession , as thereby being null , though they had lain long out of possession . so a base infeftment without possession , was found a sufficient title in a reduction to inforce production of all other infeftments , base or publick , albeit the superiour did not concur , spots . kirk-men , dowglas contra the earl of home : and such infeftments do always exclude posterior arrestments : they do also exclude the terce of the granters relict , january . . bell of belford contra lady rutherford . but base infeftments do not exclude the liferent escheat of their authour , unless they attain possession in cursu rebellionis , march . . laird of rentoun contra laird of blackiter . february . . robert milne contra clerkson . where there is no further ground of simulation then the want of possession , very little possession or diligence , for possession will prefer base infeftments to posterior publick infeftments , or to posterior base infeftments , cled with possession ; as the lifting of one terms rent did prefer a base infeftment to a posterior publick infeftment cled with many years possession , hope , alienation , hamiltoun contra mcadam . and the payment of a small part of annualrent , far within a terms annual , was sustained to prefer a base infeftment of annualrent , and it was also preferred , because there was a decreet of poynding of the ground , though not put to execution , february . and . . creditors of kinglassie competing . and a citation for attaining possession was found sufficient , february . . corse contra july . . raploch contra tenents of lethem . june . . wilson contra thomson . january . . hamiltoun contra seatoun . yea , a base infeftment of annualrent was preferred to a posterior base infeftment of property , which interveened before the first term , at which the annualrent was payable , and cled with possession before that term ; so that the annualrenter did not lye out of possession , but could attain none , july . . captain alison contra bailzie carmichael . and an infeftment of annualrent being out of discontiguous lands in several shires , was preferred as to both tenements , by getting payment of annualrents from the heretor or tenents , of either tenement , november . . mr. alexander miln contra mr. thomas hay . and possession by an infeftment for corroboration of an annualrent , did preferr the principal infeftment of annualrent , having no other possession , july . . alexander contra 〈◊〉 . and an infeftment of principal lands , and warrandice lands , being cled with possession of the principal lands , these being evicted , was found to make the infeftment of the warrandice lands effectual from its date , and preferred to a posterior publick infeftment of the warrandice lands , though cled with long possession , january . . elizabeth brown contra john scot. yea , base infeftments to wivesupon their contracts of marrage , 〈◊〉 preferre to all posterior infeftments , and the husbands possession is accounted the wives possession , though he be common author to both , november . . elizabeth nisbet contra patrick murray . and though the husband did not 〈◊〉 himself , but wodsetters deriving right from him , june . . lady 〈◊〉 contra sir john strachan . and where the husbands mother did 〈◊〉 by a liferent flowing from the husbands father , to who 〈◊〉 he was heir , it was found sufficient to cloath his wifes infeftment with possession , february . . mr. james reid contra countess of dundee . but a base infeftment of a wodsett , with a back-tack to the granter , is not held cled with possession by the granters possession as tacks-man , till some further possession be attained . where there is any further ground of suspition or simulation , there must be a clear possession , as a base infeftment by fathers to their children , was not sustained by the fathers possession , whose liferent was reserved therein , june . . dury contra bruce . but a posterior base infeftment to the wife was preferred in this case , as being cled with the husbands possession , though common author to both the son and wife . the like of a base infeftment granted by a goodsire to his oy , reserving the goodsires liferent , july . . earl of annandale contra johnstoun . and an infeftment by a father to his son , was not found cled with possession by the fathers possession , though he had a factory from the son ; but it was not alledged that the father had granted discharges , expresly relating to the factory , july . . gardner contra colvil . yet in the competition of two base infeftments , the former being granted to a stranger for relief of caution , and the latter granted to a son and appearand heir for relief of his caution , exceeding the value of the lands , the sons base infeftment , though posterior , having first attained possession , and being without all suspition of simulation , was preferred . and it was not found , that infeftments for relief , were in the same case with warrandice lands , where the possession of the principal lands is fictione juris , a possession of the warrandice lands ; these infeftments being less subject to fraud or uncertainty , then infeftments for relief , which relate to personal debts , and oftimes generally to all debts or cautionries contracted or to be contracted , which debts may be retired and keeped up , and made use of by the infeftment for relief , june . . mr. john inglis contra tennents of eastbarns . infeftments base to wives , not being upon their contracts of marriage , or in place thereof , are not holden as cled with possession by the husbands possession . . infeftments by confirmation , do not only require a charter from the disponer , bearing the lands to be holden of the superiour , and seasine thereupon , but require also the superiours confirmation , till which it is no real right , but null ; but whensoever the confirmation is added , the right becomes valid from the date of the infeftment confirmed , as to the right of property , and as to the superiours casualities ; and therefore , an infeftment , ase , not confirmed , was found null by exception , though cled with some years possession , december . . patton contra stuart , and found null , though the confirmation was past the privy seal , hope , confirmation , hunter contra dalgleish . and also found null in an annualrent , holden from the disponer , not confirmed , hope , confirmation , lord balmerino contra coatfield . but if there were any mid impediment betwixt the charter confirmed , and the confirmation ; it excludeth the confirmation and whole right , as an appryzing and infeftment . but confirmation of a right , not bearing to be holden of the superiour , but of the vastal , makes it not a publick infeftment , nor takes it away the superiours ordinary casualities , as ward , but only recognition and forefaulture , hope , confirmation , lady cathcart contra vassals of cathcart , november . . laird of clackmannan contra balnamoon . hence it is , that because confirmation constitutes rights holden of the superiour , that the first confirmation makes the first right , though it confirm a posterior infeftment from the vassal , as is clearly determined in the case of double confirmations holden of the king , par. . cap. . which is not introduced , but declared by that act , and holdeth alike in other confirmations . it doth of times fall to be doubtful , whether a confirmation makes an infeftment publick or not , when seasine is taken upon a precept of seasine in a disposition ? which disposition contains obliegments for infeftment , de se & ase , by confirmation . but the precept of seasine relates not specially to either obliegement , and seasine is taken thereupon , and is afterward confirmed : the question comes , whether this be only a confirmation of a base infeftment , to exclude forefaulture or recognition , or if it doth make the infeftment publick ? it is generally constructed as a publick infeftment , as was found , july . . bishop of aberdeen contra viscount of kenmure . . infeftments upon appryzing or adjudication , when formally perfected , do require charters to be granted by the superiours of the appryzed lands , or other real rights , the tenor whereof is already set down in this title , and precepts and seasines thereupon , which have little peculiar differing from other infeftments , as to their tenors and effects , but that their reddendo is ordinarly general , when the appryzer or adjudger cannot prove or instruct the tenor of his authors right ; and therefore , do bear such duties and services , as were contained in the authors rights , which the superiour may be charged to renew and make special , so soon as the authors rights are produced ; and if they be not so renewed , they are understood as ward-holdings : but for renovation thereof , the appryzer or adjudger will get letters of horning summarly upon the allowance of the appryzing or adjudication , which will not be excluded , although the superiour have already granted infeftments in general terms as aforesaid , but he must renew the same according to the special tenor of the authors right produced , and that without any new composition ; yea , the appryzers heirs upon supplication , will obtain letters of horning summarly for renewing the same , and so will his singular successors , but they must pay a years rent for their entry , whether their title be appryzing or adjudication against the former appryzer or adjudger ; in wich case he may make use of letters of horning , upon the allowance of his own appryzing ; and though his title be a voluntary disposition , he will get letters of horning , as succeeding in the place of the former appryzer or adjudger , to renew and make special the former infeftment to his author upon payment of a years duty . but appryzing and adjudications being legal dispositions , and conveyances of the authors infeftment , we shall say no further of them in this place , but leave them to the title twenty four , where they are considered amongst dispositions . we shall only add here , that before the year , . appryzings were left at the great seal , by warrant from the lords , whence precepts were issued thereupon against the superiours to infeft ; which if they obeyed not , charters were granted by the king to supply their vice ; but since , they are retained by the appryzer , and he may have letters of horning summarly charging the superiours to grant charters and precepts of seasine , as is aforesaid . . this also is singular in appryzings and adjudications , that a real right of fee is constitute thereby , by a charge of horning against the superiour , without charter or seasine : for such appryzings or adjudications are declared effectual by the act of parliament , . cap. . ordering the payment of debts betwixt creditor and debitor : for after that charge , no infeftment upon voluntary disposition , or upon any other appryzing or adjudication can be granted by the superiour , prefering any other vassal to the appryzer , or adjudger , whom he hath unwarrantably refused to enter , if the appryzer or adjudger insist in his appryzing or adjudication for possession ; but he may forbear to make use of the appryzing or adjudication , and if hely long out without further diligence , he will be presumed to have relinquished his appryzing or adjudication , and posterior rights and diligences will be preferred : but if he enter in possession , no posterior infeftment or diligence will exclude him , although he insist no further but the charge of horning : and it hath not occurred to be determined , how long that right will subsist without infeftment ; but it hath been found , that the superiour will not be excluded from the casualities of superiority by his former vassal , if he have not been in the fault , in refusing to enter when the appryzer or adjudger offered him a charter with a years rent of the land , or annualrent of the sum adjudged or appryzed , for this was in the case of ward , february . . black contra david trinch . neither was a superiour found to have interest to exclude an appryzer from possession , till he payed a years rent , but that he might possess during the legal , if he insisted not for infeftment , which insinuats , that after expyring of the legal , the superiour might hinder the appryzer or adjudger to continue in possession till he take infeftment , and pay a years rent ; but during the legal , the appryzing or adjudication is but as a legal assignation to the mails and duties , so that the appryzer cannot be forced to take infeftment , till the legal expyre , and the land become irredeemably his own , and then he is to pay a years rent ; but in this case there was no charge upon the appryzing , december . . mr. hendry hay contra laird of earlestoun . albeit in the case of johnstoun contra the tennants of auchincorse , july . . the appryzer having charged the superiour , though he did not then obey ; yet appearing in the process of mails and duties , he offered now to receive the appryzer ; and therefore , the appryzer was excluded till he payed the years rent , which being under consideration of the lords , in the posterior case of mr. henry hay , they resolved to give the apyryzer his option within the legal to take infeftment or not , so that the charge doth only hinder others to preveen , but doth not exclude the superiour from any casuality of the superiority , falling by his former vassal , unless he had been in culpa , refusing the appryzer entry , insisting orderly to be entered , which is a great advantage , both to debitors and creditors , not to have the accession of a years rent , till the ancient rights may be discovered , and that it may appear whether the appryzing becometh an absolute right . the main division of infeftments is in relation to the holding is in ward , blench , feu , burgage and mortification . . an infeftment ward hath its denomination from ward , which is the chief casuality befalling to the superiour thereby , it is the most proper feudal right we have ; and therefore , wherever the holding appeareth not , or is unclear , there ward-holding is understood ; it is ordinarly expressed by rendering service , used and wont : and if the reddendo be not express in name of blensh , or feu ferm , though it bear payment of some duty , yet ward is inferred , as by a charter , bearing , sex dinarios nomine cana , with a taxed marriage : so also it was inferred by a reddendo , bearing a particular duty , payable at whitsunday and martimass , cum servitiis in curiis , nostris & alibi debitis , & consuetis , hope , de feudi renovatione , williamson contra thomson . the main importance of a ward-holding was indefinite service to be performed by the vassal to his superiour , and especially in war ; but that being now little in use , the main effect of it is , the ward and marriage of the vassal , of which hereafter . . ward lands according to the nature of proper feudal rights , might not be alienat by the vassals , granting any subaltern infeftment thereof : otherways , not only the subaltern infeftments were void , but the vassal granter thereof , his own infeftment became void by recognition ; yet by act of parliament , . cap. . all feus to be granted by the king , prelats , barons , or free-holders , are allowed and declared not to fall in ward , as being but heretable assedations , as the act bears , paying to the superiour , during the ward , the feu-duty , providing the lands be set to a competent avail , without prejudice to the king , which is ordinarly interpret to be the retoured duty ; the same is repeated par. . cap. . and extended not only to subaltern infeftments feu , but also of annualrents , so that it be without diminution of the rental , which in lands holden of the king by secular men , is the retoured mail , and in the kings property , and in kirk-lands is the full rental , they should happen to be at the time of the subaltern infeftments , which therefore , the feus may not diminish , and the annualrent may not be so great as to exhaust the land , that the rental remain not free : this last act was temporal for that kings life ; and therefore , the extention as to annualrents ceaseth , though the first act expresseth , that the king will ratifie all feus granted by the kings immediat vassals ; yet the act bears , that the king thereby will give good example to the rest , viz. to other superiours ; and therefore , a feu of ward-lands granted by a vassal , holding ward of a subject , before the act of parliament , . was found valid , though without the superiours consent , june . . stuart of torrence contra feuars of ernock . this priviledge was taken away as to all superiours and their vassals , except the vassals of the king , who only might grant subaltern infeftments of their ward lands , par. . cap. . whereby all such subaltern infeftments of their ward-lands , are declared null by exception or reply , unless the superiours consent were obtained ; and therefore , the superiours consenting in the disposition by a vassal to a sub-vassal , was found to exclude the vassals ward so far as concerns the sub-vassal , though it was a redeemable feu , july . . earl of eglintoun contra laird of greenock . the same was extended to the vassals of the king and prince , who were thereby also excluded from setting of feus of ward-lands to sub-vassals , par. . cap. . but the vassals of the king and prince were restored to their former priviledge , and the said act . wholly repealed , parliament . cap. . which now is rescinded , par. . cap. . yet the lands set in feu , during the time of these several acts now repealed , are valid . so ward-lands holden of the king or prince , may not be set in feu , nor of any other superiours , except bishops and their chapters ; for these might set feus for a feu-duty , equivalent to the retour , par. . cap. . but this act was only temporary for three years ; and therefore , subaltern infeftments granted by vassals , if of the most part of the ward-lands , infers recognition thereof in the superiours hands , but if within the half , they are not null as to the vassal , but are null as to the superiour , and exclude him from no casualities of his superiority , as ward , &c. but as the half may be sub-sett , so any other right less then the value of the half , is sustained as an infeftment of warrandice , march . . cathcart contra campbel . the like holds of infeftments of liferent , but if the disposition or infeftment be granted to the vassals appearand heir , in linea recta , it infers not recognition , be-because the superiour is not prejudged by change of his vassal ; but recognition was found incurred by a disposition and infeftment to the vassals brother , though his appearand heir for the time , seing there remained hope of issue in the disponer , and so his brother was not alioqui successurus , spots . recognition , advocat and his son contra the earl of cassils and collane . feus of ward-lands granted by the kings ward-vassals , after the act of parliament , . and before the act of parliament , . were found not only to be free from the ward-liferent-escheat , or recognition of the kings vassals ; but also that the sub-vassals feu did not fall by his superiour the kings vassals forefaulture , because the act of parliament expresseth a confirmation of such feus , which therefore needs not be past in exchequer , without which there is no doubt but ward and non-entry are excluded : and by a confirmation in exchequer , forefaulture would be excluded without question , even after the act of parliament . and therefore , the ratification and approbation of feus by the act , . when it was in vigour , must also secure against forefaulture of the granter of the feu , as was found , february . . and january . . marquess of huntly contra gordoun of cairnborrow , whose feu being granted after the act of parliament , . and before the act . was sustained against a donatar of his superiours forefaulture . the like , though the feu was renewed upon resignation , in favorem , not being ad remanentiam , november . . campbel of silver-craigs contra laird of achinbreck and earl of argyle . . infeftments blensh are such , whose reddendo is a small elusory rent , as being rather an acknowledgement of , then prosite to , the superiour ; and therefore , ordinarily it beareth , si petatur tantum , as a rose , penny money or the like , and these are not counted blensh rights , unless they bear , in name of blensh ferm ; or if they bear not , si petatur ; or if it be a yearly growth or service , it is not due , and may not be demanded at any time , unless it be demanded within the year , at the term , as a stone of wax , or a pound of pepper , february . . lord semple contra blair . where the like is observed to have been before , june . . bishop of st. andrews contra galloway . the like found , where the reddendo bore , si petatur tantum , june . . bishop of st. andrews contra tersons . so blensh duties of lands holden of the king or prince , are declared only due , if they be asked yearly , and no price can be put thereupon by the exchequer , parliament . cap. . yet seing by act of parliament , the king is not to be prejudged by neglect of his officers , who ought yearly to call for his blensh duties , whereof many are considerable ; therefore the exchequer continues to exact the kings blensh duties , though not demanded within the year . there is another part of the act excluding all liquidations of blensh duties in specie , which therefore should be so exacted , though not within the year , unless the vassals voluntarly offer a price ; in these blensh ferms , there is no ward and marriage befalling to the superiour , in which it differs mainly from ward . . infeftments feu , are like to the emphyteosis in the civil law , which was a kind of location , having in it a pension , as the hyre , with a condition of planting , and pollicy , for such were commonly granted of barren grounds ; and therefore , it retains still that name also , and is accounted and called an assidation or location in our law : but because such cannot be hereditary and perpetual , all rentals and tacks necessarly requiring an ish ; therefore , these feu-holdings , partake both of infeftments , as passing by seasing to heirs for ever ; and of locations , as having a pension or rent for their reddendo , and are allowed to be perpetual , for the increase of planting and pollicy . . in what cases feus are allowed of ward-lands , hath been now shown ; in other cases , they are ordinarly allowed , where they are not prohibit ; so we shall only need to speak of cases , wherein they are prohibit and void ; and that is , first , in the patrimony of the crown , which is annexed thereto , and cannot be set feu by the king , without consent of parliament , by their act of dissolution , bearing , great , seen and reasonable causes of the realm , by sentence and decreet of the whole parliament . but ratifications , which pass of course in parliament , without report from the articles , will not supply the dissolution of the annexed property , or validat infeftments thereof , even though the ratification bear , a dissolution : upon which ground , the earl of mortouns right to the earledome of orkney was reduced , february . . kings advocat contra earl of mortoun . neither can the annexed property be disponed by the king , but only in feu , after the act of parliament , . cap. . and all infeftments , tacks , pensions , gifts , discharges granted before lawful dissolution in parliament , or after dissolution , yet contrary to any of the conditions of the same , are declared null of the law , by action or exception , as well as to by gones , as in time coming , par. . cap. . par. . cap. . which is confirmed and extended to feus , not only to be granted of lands , but to feus granted of the feu-ferm-duties , which was a device invented , to elude the law , par. . cap. . . secondly , feus of the annexed property , after dissolution , may not be set with diminution of the rental ; the feu-duty not being within the new retoured duty , par , . cap. . and that it may appear whether the rental be diminished or not , before they pass the seals , they must be presented to the thesaurer and comptroller , and registrate in his register , and the signature subscribed by him , otherways they are null , par. . cap. . and such feus set without consent of the comptroller , by his subscription , registrat in his register , are again declared null , par. . cap. . the comptrollers office hath been of a long time adjoyned to , and in the same commission with the thesaurers office , or commission of the thesaury . what lands and others are annexed to the crown , appeareth by the several acts of parliament made thereanent , consisting mainly of forefaulted estates and kirklands , after the abolishing of the popish clergy ; which because they were presumed to have been most part mortified by the kings of scotland , therefore , the intent of their granting ceassing by the abolishing of popery , they return to the crown , as the narrative of the act of annexation of the temporality of benefices , par. . cap. . bears ; and therefore , benefices of laick patronage , as having proceeded from these patrons are excepted by the said act : and though after the restitution of bishops and their chapters , the act of annexation , in so far as concerned their lands , was rescinded , par. . cap. . yet bishops being abolished , par. . cap. . their lands were again annexed to the crown , par. . cap. whereby all erection of kirk-lands in temporal barronies or lordships , by which the king interposeth any person betwixt himself and these who were formerly vassals of kirkmen , are prohibit and declared null ; this act is rescinded in the general act rescissory , . cap. . the annexed property after dissolution , may not be granted in ward or blensh , except upon excambion , for as good lands , par. . cap. . . feus of kirk lands by prelats , or other beneficed persons being granted by consent of their chapters , with all requisite solemnities , were esteemed legal securities , without any particular confirmation by the king or pope , there being no statute nor constitution obliging the subjects thereto : and in case any confirmation had been requisite , the consent of the prince , under his proper seal , and subscription was sufficient , par. . cap. . yet it was the custome , that the kings , or popes authority was interposed to all feus of kirk-lands , therefore , all feus not confirmed by the king or pope ; before the . of march , . or being thereafter not confirmed by the king , are declared null by exception . par. . cap. . the reason hereof was , because in march , . the reformation of religion began to be publickly professed in scotland , and the beneficed persons became hopeless to preserve their rights of their kirk lands , and therefore endeavoured to dilapidat the same : but this was found , not to extend to an infeftment of an office , as the office of forrestrie , though it had lands annexed thereto , and a threave of corn out of every husband land of the abbacy , seing the statute mentioned only feus of lands . and this was but like a thirlage , . of ianuary , . lord renton contra feuers of 〈◊〉 . it is also declared in the . act par. . that the old possessors were to have their confirmation , for payment of the quadruple of their silver rent , or the double of their ferm : providing they sought the same within a year after the publication of that act ; otherwayes they were to pay the eight fold of the silver rent , and the triple of the ferm , and the king was thereby obliged to grant confirmation to the old possessors upon these terms ; and being so confirmed , the same could not be questioned upon aleadged dimunition of the rental , or conversion in monie , or any other cause of nullity , invalidity or lesion , or by any law , canon , or statute , except improbation only . and it was declared , that confirmations by the king , of posterior feus should not perjudge the anterior feus granted by prelates , and their convents , with their common seals , and subscriptions at any time , being granted with consent of the kings predecessors , under their privy seal , though without farder confirmation by the kings or popes , par. . cap. . the reason hereof was , because in the time of the reformation , most of the evidents of kirk lands were destroyed : and therefore the ancient possessors , were presumed by their very possessions to have right : and for clearing who were the ancient possessors , and what were kirk lands , it is declared by act of sederunt , . of december . that ten years possossion before the reformation , or thirty years possession thereafter , but interruption , should be sufficient to stand for a right of kirk-lands , the same being possest as such ; and feu dutie being payed to kirkmen , before the reformation or to the king , or others having right from them , after the reformation therefore , it was so decided , . of july , . laird of kerse contra minister of alva , though much stronger probation , of being part of a temporal barronie , for longer time was alledged in the contrary , hope , earl of home contra earl of balcleugh , spots . kirkmen . mr. john hamiltone minister at linton contra john tweedie . secondly , feus granted by prelats were null , except they were expede by the consent of their chapters , or convents , par. . cap. . thirdly , feus granted by the beneficed persons , as of themselves they ought to have been without diminution of the rental , seeing the property thereof was mortified to the kirk , and the incumbents were but as liferenters , administrators and tutors , it was also expresly declared , and statute , that any diminution of the rental , or change of victual for money , or any other disposition , making the benefice in a worse estate then at the kirk-mens entrie , should be null , par. . cap. . . infeftments in burgages , are these which are granted to the burghs , by the king , as the common lands , or other rights of the incorporation , and that for burgal service , in watching and warding within their burghs , &c. these can have no casualities , because incorporations die not , and so their land can never fall in ward , or in non-entrie . these infeftments in burgage are held by the incorporation , immediately of the king for burgal service , watching and warding within burgh , &c. and the particular persons infeft , are the kings immediate vassals , and the bailies of the burgh are the kings bailies : and to the effect that such infeftments may be known , it is declared , that all seasines of burgage lands shall only be given by the bailzie , and common clerk thereof ; otherwayes the famine is declared null , ( which seems to have given the rise to the exception in the act of parliament , anent registration of seasins , that it should not extend to seasins within burgh ) par. . cap. . . infeftments of mortisied lands are these which are granted to the kirk , or other incorporation having no other reddendo , then prayers and supplications , and the like : such were the mortifications of the kirk-lands , granted by the king to kirk-men , or granted by other privat men to the provost , and prebendars of colledge kirks founded for singing ; or to chaplains , preceptors or alterages , in which the patronage remained in the mortifiers . . of all these mortifications there remains nothing now , except the benefices of bishops , deans , and chapters , and the manses and gleibs of ministers , which are rather allodial then feudal ; having no holding reddendo , or renovatione ; yet are esteemed as holden of the king in mortification : and therefore , the liferent of the incumbent , by being year and day at the horn , falls to the king. manses , and gleibs , did belong to parsons , viccars , and other kirk-men before the reformation , after which they were prohibited to set the same feu , or in long tack , without the royall assent , and the ministers were ordained to have the principall manse of the parson , or viccar , or so much thereof as should be found sufficient . whither the saids gleibs were set in feu , or long tack before or not , unlesse a sufficient manse be builded , by these who have right to the few , or long tack , par. . cap. . which was explained , par. . cap. . that the manse , either pertaining to the parson , or viccar , most ewest to the kirk , shall belong to the minister , and four aikers of land lying most ewest to the said manse , to be designed by the bishop , or superintendent at the visitation , by advice of any two of the most honest , and godly of the parochioners : for want of this solemnity , a designation was found null , because it bore not two honestmen by name , required to joyn with the presbytery , or their commissionersthough it bore , that all the elders of the paroch were present , and consented , but named none . spots . kirk-men , minister of lamingtoun contra tweedie , though parsons , or viccars manses may be designed to be the manse of a minister , yet no other house can be designed , though it were in an abbay , but the parochioners must build one , . of february , . minister of innerkeithing contra john kerr . if there be no manse , nor gleib of old extending to four aikers of land , then the designation is to be made of parsons , viccars , abbots , or priors land , and failing thereof , of bishops lands , friers lands , or any other kirk-lands within the paroch ; aye and while the four aikers be compleat , with freedom of foggage , pasturage , fewel , feal and divet , par. . cap. . by which there is a clear order of designation ; first , of viccars and parsons manses most ewest , and failing thereof , of parsons or viccars lands ; failing these , bishops lands , frier lands , or any other kirk-lands , as chaplanries , prebendaries : which order was so found to be observed , . of july , . thomas halyburton minister , contra john paterson . and therefore a designation of a manse , or gleib out of abbots lands was annulled , because there were parsons lands in the paroch , though they were builded with houses , and feued , for which the feuers were obliged to acquire a gleib , . july , . mr. james nairn , contra mr. james boswell : the like , though the lands were fewed all before the act of parliament , . of january , . parson of dysart contra watson . yet bishops lands were ordained to be designed before abbots lands , though they be named after , in respect of their greater interest in the cure. nicol. de sacro sancta ecclesia , . of july , . nicolson contra porteous : where there is not arable land near the kirk , the geib is to be designed of pasture lands , sufficient for soums most ewest to the kirk , par. . cap. . the designation of manses and gleibs , where they are not designed , or not a full quantity , or are become unprofitable by inundation , or other extraordinary accident , are ordained to be out of the kirk-lands most ewest to the kirk , according to the order in the act. . burrowstoun kirks being always excepted ; yet a gleib was found competent to a minister of a burgh , having a land-ward part of his parochin , spots . kirk-men , mr. robert ruch . the designation of gleibs was committed to presbyteries , par. . cap. . which is declared to be by three ministers and three elders , par. . cap. . revived , par. . cap. . whereby designations are referred to the bishop , or such ministers as he shall appoint , with two or three of the most knowing in the paroch : in which acts the power of designation is extended , not only to kirk-lands , but where these are not , to other lands arable , or grass , ewest to the kirk , provided that the heretor thereof may offer other sufficient lands and grass , within half a myle of the kirk and manse : and by the said act , . there is added to the gleib pasturage for a horse and two cows , which is found to be regulat as the gleib before , which is also revived , par. . cap. . with this alteration , that if there be not kirk-lands near the manse , or are not arable lands , the heretors shall be lyable to pay yearly to the minister , twenty pounds scots , for his horse and kines grass , and this act is declared to be as if it had been made in march . as to designations , after . that parliam . being rescinded without reservation contained in the act rescissory ( as is in the act rescissory of the other parliaments ) saving all privat rights done thereby ; but there is no warrand in any of these acts to design temporal lands , where there are any church lands ; and therefore , a designation was reduced , because temporal lands were designed , and kirk-lands past by , albeit the minister had been possessor , decennalis & triennalis , which gave him a presumptive title , because his designation which was the true title , was produced , february . . lord forret contra mr. john maters . a gleib designed , was found to carry a proportional part of the common pasturage following to the lands designed , february . . hamiltoun contra tweedie . designation of a gleib was sustained , though it bore not the same to have been four aikers measured , in respect it bore , that the possessors servants hindered the measuring ; and therefore , it was designed according to the common estimat , july . . kers contra minister of alloway . and also sustained , though there were lands nearer the kirk and manse , which were bishops lands , seing they were inclosed as a part of the kings park , february . . lady dumfermling contra minister of dumfermling . bat a designation was annulled , because there was an old gleib possest long by the incumbent , being four aikers , nicol. de sacro sanct . eccles. minister of aberdour contra brown and ramsay . a designation was sustained , though there was only a nottars instrument without the subscription , of three ministers designers , december . . mr. thomas paterson contra watson : here the ministers designers , their testificat under their hand , was ordained to be produced before extract . a gleib being designed was sustained , though it was an united kirk , the other kirk having a gleib , january : : ministers of innerkeithing contra john keir . a designation was also sustained , though it proceeded upon warning out of the pulpit , or at the kirk-door , after divine service , in respect of the custom so to do , though some of the most considerable heretors were out of the countrey , january : : ministers of hassanden contra the duke of bukcleugh . it was also sustained , though done but by two of the three ministers , named by the bishop , without a quorum , unless weighty reasons upon the matter , were shown to the contrary , february : : minister of cockburnspeth contra his parochioners . manses & gleibs being designed as said is , the feuars , possessors and tacksmen have relief of the remnant parochioners , having kirk-lands , pro rata , par : : cap : : which was extended to a 〈◊〉 manse being designed ; and the other kirk-lands , a part where of were mortified to , and holden of a colledge , did bear burden , february : : john cock contra parochioners of auchtergivan . but where old gleibs are designed , there is no relief by other kirk-lands except these who had feus of other parts of the same gleib , seing by the foresaids statutes , the feuars of old manses or gleibs , are to suffer designation , or to purchase new manses and gleibs ; so that these old manses and gleibs do not infer relief : this relief is not debitum fundi , affecting singular successors , as was found , june : schaw contra hamiltoun of munckland . but when the designation is of temporal lands , the whole heretors of temporal lands are to contribute for a recompense thereof proportionally , par : : cap : : revived , par : : session . cap. . gleibs are teind-free , parl. . cap. . the like , where they are arable or grass , par. . cap. . and a gleib was found teind-free , though lately mortified , voluntarly without designation or process ; and though not mortified to a paroch church , but a chappel , seing divine worship was accustomed to be therein , june . . alexander burnet contra william gibb . . there is another division of infeftments , into these which are granted to one person and his heirs , and to more persons and their heirs , which are of diverse sorts ; sometimes as conjunct-infeftments , and sometimes conceived in favours of fathers , and after their decease , to children or relations therein nominat . conjunct-infeftments are called conjunct-fees , whereby the fee is disponed joyntly to more persons and their heirs , which may be to three or more persons , who by the infeftment , become all fiars joyntly and equally ; whence there ariseth a communion by which they do possess the fee , pro indiviso , until division thereof be made , which doth not comprehend an infeftment to an incorporation , as to a town or colledge , or to the use of the poor , who do not thereby become joynt fiars , but have only a share of the benefite , according to the distribution appointed . these infeftments are not conceived to heirs , seing incorporations are perpetual and die not , neither doth the publick use fail ; therefore , such infeftments require no renovation . superiours will not easily be induced to accept resignations from their vassals in favours of incorporations and publick uses , by which all the casualities of their superiority cease ; or to grant confirmations thereof , having the same effect : nor can they be compelled to grant such infeftments upon the vassals bonds , granted of purpose , that adjudication may be used thereupon , that thereby the superiour may be compelled to receive the incorporation ; yea , though without design , an incorporation should become creditor to a vassal in a debt truly borrowed , either from the incorporation or their cedent ; the question is , whether an adjudication thereupon might force the superiour to receive the incorporation for a years rent . craigs opinion is in the negative ; and i have not heard such a case come to be debated . and though custom hath oblieged superiours to receive man and wife in conjunct-fee , which abate their casualities , during the life of two persons , the consequence would not be good , to reach to an incorporation that never dies , though the act of parliament introducing appryzings and adjudications , be generally in favours of all creditors : it were more just , that incorporations should pitch upon a person , and assign their debt to him expresly , to the effect , that the lands might be adjudged to him and his heirs , for the use and behove of the incorporation , or such other uses as were designed , which would be effectual against all singular successors , especially , if the trust were exprest in the seasine ; but the superiour would have all his casualities by the death , neglect or delinquence of the trustee and his heirs . i shall not pre-determine my self or others in the case , but leave it to publick determination . conjunct-fees , by the custom of england , are always so understood , that the survivers have the whole benefite , so long as any of them are alive ; but we do only extend this survivancy to conjunct-infeftments to husband and wife , which bears ordinarly to the longest liver : but though that were not exprest , it would be understood as implyed , and generally , it resolves in the wife but as a liferent ; and the husband is understood to be fiar , unless it be evident , that the right was originally the wifes , and a liferent only designed for the husband ; and therefore , if no heirs be exprest , or only generally their heirs , the husbands heir is understood in heretable rights , nam potior est conditio masculi ; and the wife is only liferenter , but with greater power then by a separate liferent , june . . elizabeth scrymzour contra murrays . and a wife having charged , upon a bond granted to her husband and her , and the longest liver , was found not to have right to uplift the sum , or to insist therefore , without concurse of the mans heir , or he being called , that if the sum were insecure , it might be consigned to be re-imployed to the wife in liferent , and to the heir in fee , december . . katharine ross contra laird of hunthill . yea , a clause in a bond , bearing , a sum borrowed from a husband and wife , and payable to the longest liver of them two in coniunct-fee , and to the heirs betwixt them and their assigneys , whilks failing , to the heirs and assigneys of the last liver , was found to constitute the husband fiar , and the wife liferenter , albeit she was last liver , whereby her heirs of line ( failing heirs of the marriage ) became heirs of provision to the husband , and lyable to his debts , january . . graham contra park and gerdan . january . . john justice contra mary barcley his spouse . and a clause in a contract of marriage , oblieging the husband to take the conquest to him and his future spouse , and the heirs betwixt them ; whilks failing , the heirs of the mans body ; whilks failing , the wifes heirs whatsomever , was found not to constitute the wife fiar , but liferenter , and the husband fiar ; whereby failing heirs of the marriage and of the mans body , the wifes heirs of line , were heirs of provision to the man , february . . cranstoun contra wilkison ; for by this clause of conquest , it is evident , the means were to come by the man ; yet an obliegement by a man , bearing , that whatsoever lands or sums of money he should purchase , during the life of him and his future spouse ( their present debts being first payed ) that the wife should be secured therein in conjunct-fee ; and in case of no issue , or children , the one half thereof to be disponed as the wife should think fit , was found to make the conquest divide betwixt the heirs of the man and the wife , and that her power to dispone the half , was not a personal faculty , but did make her fiar in that half , and took off the presumption of the preference of the husband , seing no mention was made of the heirs of either party , june . and . . earl of dumfermling contra earl of callender . conjunct-fees to husband and wife , and the heirs of the marriage , do imply a restriction upon the man , not to alter the succession , without a necessary or just consideration , and so do exclude deeds fraudulent , or meerly gratuitous , which might evacuat the effect , as to the heirs of the marriage ; so that if there were heirs of the marriage , and also heirs of another marriage , the father could not alter the succession , in favours of the heirs of another marriage , because of the interest of the wife , and the tocher she-brings : but it doth not hinder the father to give competent portions to the bairns of another marriage , june , . murrays contra murrays . neither did such a clause of conquest during the marriage , exclude a competent liferent , constitute to wife of a subsequent marriage , albeit there were bairns of the first marriage , june . . katherine mitehel contra children of thomas littlujohn . yet where there survived no heirs of the marriage , a provision in a contract of marriage , that such a sum , the future spouse then had , and all they should acquire during the marriage , should be taken to themselves in conjunct-fee , and to the heirs of the marriage , whilks failzing , the one half to the mans heirs , and the other half to the womans heirs , found to constitute the man fiar of the whole , and that he might provide both the first stock and all the conquestro his children of a posterior marriage , which was found no fraudulent 〈◊〉 meerly gratuitous deed , december . and . . alexander anderson contra androw bruce . . infeftments to more persons subordinat , are such as are taken to parents , and after their decease to such children and other persons named , whereby the parent is understood to be fiar and not liferenter , and the children or others to be heirs substitute , albeit both the father and the bairns named , were infeft , july . . laird of lambingtoun contra 〈◊〉 of annistain . but where the band did bear , a sum lent by a father for himself , and as administrator for his son , and that the money was the sons , and payable to the father , and after his decease to the son , was found to constitute the son 〈◊〉 , and the father only life-renter , february . . campbel contra constantine . . the third division of infeftments , is in respect of the succession , and they are either simple or tailzied : simple infeftments are these which are taken to heirs whatsomever ; for by that expression we express the lineal heirs , who according to law , would succeed in any heretable right : but tailzied infeftments are , where the lands are provided to any other then the heirs of line , as when it is provided to heirs male , or heirs male of the fiars own body , or to the heirs of such a marriage , or to the heirs of titius , whilks failzing , to the heirs of seius , &c. of these tailzies , there are many several ways as the fiar pleaseth to invent , and ordinarily in them all , the last member or termination is the heirs whatsomever , of the last branch or person substitute , or the disponer , and when that takes effect by succession , the fee which before was tailzied , becomes simple . a tailzie must necessarly be a part of the infeftment , for no write apart can constitute a tailzie , though bonds or contracts of tailzie as personal or incompleat rights , may force the contracter or his heirs to perfect the same . they must also be constitute by the superiour , being a part of the infeftment granted by him , either originally in the first constitution of the fee , or thereafter by resignation or confirmation ; and as a superiour is not oblieged to alter the tenor of the first investiture , or to accept a resignation , or grant a confirmation in any case , except where it is provided by law , whereby he is necessitat to receive appryzers and adjudgers : so neither in that case is he oblieged to constitute a tailzie , but only to receive the appryzer or the adjudger , their heirs whatsomever , unless the debt and decreet , whereupon the same proceeded , be conceived in favours of heirs of tailzie ; in which case , the appryzing or adjudication , and infeftment thereupon , must be conform , unless it be otherways by consent of parties . tailzies also being constitute , are broken or changed by consent of the superiour , accepting resignation in favours of other heirs , whether the resigner resign in favours of himself , or his heirs whatsomever ; or in favours of any other and their heirs : but most ordinarly by appryzings or adjudications , whereby the superiour is necessitat to receive another vassal and his heirs , though perhaps he be substitute himself as an heir of tailzie , as if it be provided , that failzing other heirs there mentioned , the fee return to himself . but infeftments holden of the king , have this priviledge , that they are not refused , either upon resignation or confirmation , as the fiar purchaser pleaseth : yea , it is declared by several 〈◊〉 of the privy council , that the king or his commissioners ought not to deny his confirmation upon the reasonable expenses of the party ; which ordinances are repeated in the act of parliament ; and though the design thereof gives not occasion to ratifie the same , yet they are contained in the narrative , as motives of that statute ; and therefore , are not derogat , but rather approven , parl. . cap. . and though several kings have revocked infeftments granted by them , from heirs of line , to heirs male and of tailzie ; yet the effect of such revocations hath never been tryed by suite or decision . conjunct-infeftments to husband and wife and their heirs , are also tailzied , and though , if the heirs of that marriage be a son , and of a first marriage , he may be both heir of line , and heir of the marriage , yet may he enter as heir of the marriage ; and if the defunct had other lands provided to heirs whatsomever , he may renunce to be heir in these lands , to the effect , they may be first burdened with his fathers debt , and he or his lands provided to the heir of the marriage , can be but burdened in the second place , in subsidium , of what is wanting by the executors , or heretage befalling to heirs whatsoever ; much more are infeftments tailzied , which are granted to husband and wife , and to the bairns of the marriage , whereby male and female come in pari passu . bonds taken to parents , and after their decease to such a child , nominatim , whereupon infeftment followed , makes a tailzied fee ; but these are rather called heirs of provision , and these are most properly called tailzied fees , where several branches are specially substitute , one failzing another . but seing heirs of tailzie fall under consideration in the transmission of rights by succession , we shall insist no further thereon in this place , but shall proceed to consider the clauses which are adjected in infeftments , not being of the substantials or solemnities thereof , and how far such come in as parts of the real right , affecting singular successors , and how far they are only personal , affecting alone the heirs of the superiour or vassal : and last , we shall consider the effects of infeftments themselves . as to the first , beside the solemnities requisite in infeftments , there uses to be many clauses insert therein , all which , we cannot follow , but shall insist in the most ordinar and and important ; these are union , erection , warrandice , reservations , provisions , conditions , and clauses irritant . . union is the conjunction , or incorporation of lands or tenements , lying discontigue , or several kindes unto one tenement , that one seasine may suffice for them all ; in which there is sometimes exprest a special place where seasine should be taken ; and when that is not , seasine upon any part is sufficient ; for the whole lands lying contiguous are naturally unite , and needs no union , so that seasine taken upon any of them , extendeth to the whole : but where they ly discontiguous , other tenements being interjected , there must be seasine taken upon every discontiguous tenement , which must be all particularly so exprest in the instrument of seasin , whereof one will serve for all the tenements ; or otherways , when they are tenements of several kinds , as lands , milns , fortalices and fishing ; all which are several kinds of tenements , and require several seasines , and pass by several symbols or tokens , as lands , by earth and stone , milns by the clap , fortalices by the entry at the gates , and inclosing the person possest , and excluding the granter of the possession solemnly , conform to the charter or precept . union can be constitute originally by no other then the soveraign authority , conceding the same , january . . mr. hendry aikin contra greenlaw . or confirming the same , january . . aikin contra stuart . and therefore , union being constitute by a subject , not having the same from the king , was found null by exception , at the instance of the possessors , though pretending no right , december . . lady borthwick contra scot of goldylands . and when there is a place for the seasine of the union , a seasine taken elsewhere , reacheth none of the lands lying discontigue , march . . lady dunipace contra laird of but if the lands united by the king be disponed wholly together by the vassal to others subalternly infeft , the union stands valid , july . . stuart and dowglas contra cranstoun home ; repeated , jan. . . which for the same reason ought to be extended to subaltern infeftments of an annualrent of a barrony or united tenement , which was found to extend to a miln , and to lands lying discontigue , though not taken in the place designed in the union , spots . executors , lady ednem contra tennents of ednem . . erection is , when lands are not only unite in one tenement , but are erected into the dignity of a barrony , which comprehendeth , lordship , earldom , &c. all which are more noble titles of a barrony , having the like seudal effects ; and whensoever the tenements are granted as a barrony , union is comprehended as the lesser degree , though not exprest ; and therefore , one seasine carryeth the whole barrony , and all milns and fortalices thereupon , and fishing adjacent thereto . erections can be only granted by the soveraign authority , and are not communicable by the subaltern infeftments , though the union implyed therein may be communicat . erection was found to be instructed by the kings confirmation of a charter , designing the lands a barrony , though it was not a barrony before , but the half of a barrony , wherein the barron infeft his son , in libera baronia ; which infeftment being confirmed by the king , did constitute it a full barrony , whereby an infeftment of annualrent taken upon a part of the land , affected the whole , november . . laird of clackmanan contra alardice . erections of kirklands in temporal barronies or lordships , whereby the lords of erection were interjected betwixt the king and the feuars , are prohibite , par. . cap. . and par. . cap. . for all these lands are annexed to the crown , par. . cap. . and par. . cap. . the reason whereof is evident , that such erections are prejudicial , both to the king , who loseth his casualities of the feuars , and to the people , who must accept another superiour in stead of the king ; and though they had formerly but subjects to their superiours , yet church-men were much more easy then secular persons , as requiring little service , and being ashamed to demand rigorous rates ; but any man may obtain the lands he hath in property , holden mediatly of the king , which were kirk-lands , erected in any dignity the king pleaseth to grant . there are many exceptions in the acts of annexation of the temporality of kirk-lands , and in the acts against erections , by which the kirk-land excepted , are validly erected ; and all the erections are so far allowed , as to give the lords of erection right to the feu-duties , or fruits of the property of kirk-lands , feued till they be redeemed by payment of ten per cent . and the infeftments granted to the vassals , medio tempore , are valid ; but the casualities ought still to belong to the king. it hath been sometimes questioned , whether the union and erection of lands be dissolved , and lost by an infeftment of a part thereof , from the vassal holden of the superiour by resignation or confirmation , craig , l. . dieges . . is for the affirmative , confirmed by the resemblance of a sheaf of arrows , bound with one ligament , for if one arrow be pulled out , all become louse , and so the union of the whole is dissolved , unless the superiour give the new infeftment , but prejudice of the rest . but though such cases frequently occur , whereby infeftments of discontiguous lands would only be valid , as to the contiguous lands upon which they were taken ; yet in no competition or other process , hath it been observed by any to be drawn in question or decided . so that we have ever rested in the negative , and the consequence from that resemblance is not sufficient ; but on the contrary , he who unites many discontiguous lands , unites every part of them to every part , so that the taking off of one part dissolves only it self , the rest remaining unite . but union or erection doth not change the jurisdiction of the lands unite , as to the shires and bailziries where they naturally ly , vide tit. confiscatione , § . horning . barronies and united tenements , when they are originally granted , ought to express the several tenements , according to their proper designations , and so expresly unite them : but when these are acknowledged to have been baronies , or otherways unite , or are named , or defigned as such by these who have power to unite , then the common name of the united barony or tenement , is sufficient to carry all that is holden and repute , as part and pertinents thereof ; which was extended to lands , as parts of a common designation , though some particulars were named , and the lands in question had also proper names , and were exprest in the ancient infeftments , the right in question being an appryzing , march . . gallowsheils contra lord borthwick . union and erection are as qualities of the real right , and pass unto singular successors , as is before exprest . . warrandice is either real , when infeftments is given of one tenement in security of another , or personal , when the superiour obliegeth himself to warrand the infeftment ; as to the warrandice by disposition and resignation , it is unquestionably personal , and cometh not within the infeftment ; but though it be granted by the superiour in the infeftment , yet it is but a personal obligation , no ways co-hering , nor carried with the real right ; and therefore , the singular successor of the superiour or author , is not oblieged in the warrandice , neither doth the disposition or infeftment from the vassal , carry to his singular successor , the right of the warrandice , unless it be assigned specially , or generally in the assignation of the rights and evidents . warrandice is a common obliegement , both in infeftments and other rights , and it is sometimes exprest , and then it is regulat according to the tenor of it , whether it be absolute warrandice , or from fact and deed , or from future or voluntary fact and deed . but oftimes when warrandice is not exprest , it is implyed as rights are to be warranted , which are granted for an equivalent cause onerous : but in that case , where the disposition was only of all right the disponer had , the clause inferred not absolute warrandice , but only from the disponers future voluntary deed , hope , warrandice , lord sinclar contra creighton . absolute warrandice is also implyed , where the disposition or infeftment bears ( vendidit ) because that imports an equivalent price , spotss . warrandice , john stewart contra fivie . but not so , if it were exprest under the terms of alienation , which is common to both gratuitous and onerous dispositions . warrandice from the future fact and deed of the disponer and his heirs , is implyed in pure donations , hope , warrandice , veatch contra dauling , mr. partrick schaw contra sir james durham , and was extended to a legacy rei alienae scienter legatae , june . . murray contra the executors of rutherfoord : but ought not to be extended to future necessar deeds , preceeding the gratuitous disposition , which the disponer is , or may be , compelled to fulfil ; neither upon any anterior deed , because , he who disponeth freely , is presumed but to dispone such right as he hath , but posterior deeds are fraudulent . it is craig's opinion in the forecited place , that though warrandice from fact and deed be exprest , that it doth not extend to prior deeds : and that in any case , if the cause of the disposition be for service done , for gratitude , or merit , that warrandice is implyed ; much more , if for future service , or for a feu duty , or rent : yet , if beside these , there be not an anterior cause in money , or value , such dispositions cannot be accounted onerous ; for former merit or gratitude , infer no civil obligation , and so no burden which could receive legal compulsion . and as to annual prestation in services , feu-duties , or tack-duties , if they bear no money received , or equivalent value , they are presumed to be gratuitous in favours of the receiver , who may reject or renounce them when he pleaseth , if they be not by mutual contract : and when they are evicted , the vassal is free of these duties , and hath no loss ; and therefore they ought to import no more warrandice , but from future voluntary fact and deed ; but whatever warrandice be exprest , must be accordingly observed : but craig's opinion being , that naked pactions were not effectual with us , and that a charter was but a naked paction ; so warrandice in an innominat contract , such as a fee , could be but a naked paction , importing no further then what would arise from the nature of the right . but our constant custome allowing all pactions and promises to be effectual , doth both make charters without seasine effectual against the granter , and likewise warrandice , and all other clauses-therein ; yea , the paction , that nothing should be demanded in case of eviction , is for the same cause effectual , that the money payed for the right evicted , cannot be recovered : yet craig doth there report a decision of the lords , betwixt samuel cockburn and sandielands of calder , that a charter without seasine , and not delivered in the granters life , but recovered out of the charter-chest of torphichen , was found effectual to make the granters heir perfite the same with seasine ; but it did not remain in the hands of the granter , and thereby it appears , that the lords did not then look upon charters as naked pactions . the effect of warrandice is , the upmaking of what is warranted , in so far as it is evicted , and the ordinar procedure in it is , when any sute is moved , whereon eviction may follow , intimation is made to the warrand of the plea that he may defend : and if eviction follow , and distress thereby , declarator of distress , and action of warrandice for relief is competent . also it is effectual for decerning the warrand to free the thing warranted of that which will undoubtedly infer a distress , though it hath not actually done it . in this case execution was superceeded for a time , that therein the ground of the distress might be purged , july . . laird of frendraught contra balvenie . the like upon a production of a seasine of the lands warranted , granted by the warrands author before the right and inhibition , though there was no distress , nicol. de evictione , fisher contra fleeming . the like , july . . alexander burnet contra johnstoun . february . . smith of braco contra ross of balnagoun . warrandice had also effect upon production of a decreet of removing against the buyer and seller , nicol. de evictione , johnstoun contra johnstoun . yea warrandice will take effect where there is an unquestionable ground of distress , though the fiar transacted voluntarly to prevent the distress . intimation of a plea is sufficient without an instrument , it being proven by the warrands oath , that the copy of the citation was delivered to him as an intimation , nicol. de evictione , lyme contra dunlop . but though no intimation be made , yet the warrandice taketh effect , unless the warrand had a relevant defence and could instruct the same , nicol. de evictione , boyd contra stark . but in that case , the warrandice hath no effect , ibidem , cairncorss contra murray . glendinning contra gordon . warrandice hath no further effect then what the party warranted trulie payed for the right , whereby he was , or might be distrest , though less then the value of the right warranted , july . . robert glendinning contra barnbarroch . the like upon repayment of the sum given out , and the annulrent thereof , hope , warrandice , laird of craicklaw contra lord herris . january . . boil of kelburn contra mr. john wilkie . february . . earl of argyl contra laird of aitoun . this will not hold in warrandice of lands , as to which lands of equal value , or the whole worth of what is evicted , as it is the time of the eviction is inferred ; because the buyer had the lands with the hazard of becoming better or worse , or the rising or falling of rates , and therefore is not oblieged to take the price he gave . neither is warrandice a full security , being but a personal obliegment ; and many times the price is not known . and if the warrandice be not absolute , the purchasers hazard was the greater : but in warrandice of personal or redeemable rights , the matter is ordinarly liquid , and there is no design of hazard but an absolute relief . but warrandice hath no effect where there is collusion , by being holden as confest , nicol , de evictione , aikenhead contra blackwood . the like was found by suppressing the warranders right , and receiving considerable sums therefore : whereby the right warranted fell in consequence , february . . laird of wedderburn contra sir robert sinclar . march . . murray contra lord yester . neither where eviction falls through default of the party warranted , when having a disposition of ward-lands , with double infeftment he infeft himself , base without the superiors consent , and thereby the lands recognosced , february . . maxwel contra mowbrey . neither inferred by the forefaulture of the disponers apparent heir , seeing the fiar omitted to obtain the kings confirmation , which would have excluded the forefaulture , hope , warrandice , hamilton contra laird of nidderie . it is not so clear either in reason or practice , whether warrandice takeseffect upon any other ground then what is , or may be , a ground of eviction , to take away the right of the party by whom the warrandice is graunted judicially ; as when lands are taken away by innundation , or are become barren : or when a right assigned with warrndice becomes ineffectual , because the debitor is not solvendo ; or when any accidental or extrujudicial distress or damnage befalleth to the party warranted , through occasion of the ground of warrandice , though not by legal eviction , secondly . whether warrandice takes place , when the right warranted is taken away , or burdened by a subsequent law. thirdly , whether warrandice in general will extend toward releef , and it or to forefaulture of the warrands own superior . as to the first , warrandice relates to the point of right , and not to the matter of fact , and therefore will not reach to accidents , the hazard whereof lies alwayes upon the acquirer and the propriatar : yea , a clause of warrandice that lands should be worth so much yearly rent , was not extended to desolation , by famine , march . . lady dunipace contra laird of rouiston . it was also 〈◊〉 that a cautioner being conveened , and through occasion of compearance was made prisoner in a ship taken prize ; had thereby no interest upon the clause of warrandice to distress the principal for this accidental damnage , james maxwel contra james nisbit of ladytoun . so that unless some what more be concurring then the naked warrandice , either by the value of the onerous cause , for which the right is granted , or tenor of the assignation , it reacheth not the sufficiency of the debitor or the like points of fact , as is spotswoods opinion , tit. assignation . and it was lately found , that where a creditor had given a blank assignation to a cautioner , who had payed him with absolute warrandice , that as to the cautioner , to whom it was gratuitous for the creditor to give such a warrandice , importeth not the sufficiency of the debitor , july . . william hay contra nicolson and mitchel . it was also found , that absolute warrandice in an asignation , bearing that the samine should be good , valid and effectual , was not found to extend to the solvency of the debitor ; but only that the debt could not be excluded by any legal exception , either from the cedents deed or otherwise ; as if the write assigned had been false , the cedent not being accessory , null , or declared a publick debt , november . . sir rober barclay of pearstoun contra robert liddel , which quadrats with lib. . ff . de haereditate et actione vendita , venditore nominis tenetur prestare debitum subesse , debitorem vero locupletem esse non tenetur prestare . as to the distress by subsequent laws when these are by way of declarator of an anticedent right , it is equivalent to a judicial eviction . but when the law is statutory introducing a new burden , as taxes , augmentations of ministers stipends , &c. it was craigs opinion dieges , de evictione . § . . which he reports as the judgement of the session , that in such cases , the warrand should be lyable in quantum lucratus est . but custome since hath cleared the contrary , that warrandice is never extended to subsequent statutory laws , but that these are alwayes upon the purchasers hazard : and therefore a general clause of absolute warrandice was not extended , to a burden imposed by a subsequent law , though there was an anterior abrogat law to that same effect , july . . watson contra law. neither was extended to the making up of a gleib , though it was by vertue of a prior law ; but the designation was after the disposition , july . . laird of auchintcul contra laird of innes . yea , absolute warrandice in a ladies liferent , which is most favourable was found not to extend to an augmentation of a ministers stipend thereafter , though grounded upon a prior law , march . . lady dumfermling contra her son. but where a clause of warrandice did bear , that a rental of a ladies liferent should be so much worth yearly ; it was found effectual to make up an abatment of the rental by a ministers stipend ; modified thereafter , july . . lady cardross contra her son. or to the making up a readers stipend imposed by a posterior law : for in these cases it was the special tenor of the clause to uphold the rental , which would have been effectual not only as to eviction in jure , but as to distress in facto by inundation , devastation , or the like . the intent of absolute warrandice being only against legal eviction , it doth not extend to every burden that may affect the land , as to a servitude of pasturage , fewel , feal or divet , or to a thirlage of the land to the miln of the barrony , paying the ninteetnh corn , june . . sandelands contra earl of haddingtoun . absolute warrandice is sometimes general , and sometimes special , against ward , relief and non-entry , &c. with a general clause , and all other dangers , perils and inconveniences whatsoever , as well not named , as named , &c. as to which , the general clause is not to be extended above the greatest of the special . but the question ariseth , if such clauses will reach subsequent wards or marriages of the superiour , or to future porefaultures , or recognitions , non-entries , liferent-escheats , &c. , it is certain that whatever of these burdens besal by the fault of the warrand , he must be lyable therefore . absolute warrandice being much stronger then warrandice from fact and deed , which reacheth not only to facts of commission , but even to ommission of duties ; and therefore , if the warrandice be but by the authour , and not by the superiour , these subsequent distresses will not reach the author , unless the clause bear expresly , such distresses past , present or to come ; and so though the fee were extinct by the forefaulture or recognition of the superiour , or burdened by his non-entry , or remaining at the horn , these occurring after the disposition will be upon the hazard of the acquirer , and not the authour disponer : but if the warrandice be in the superiours charter , burdening himself , it will be extended to all subsequent distresses through his fault , and so to recognition , liferent-escheat or non-entry , but it will not extend to the forefaulture , or recognition , or other fault of the superiours superiour : neither will it extend to the ward or the avail of the marriage of the superiour bound in warrandice , failing thereafter , unless it be so exprest ; for no provident man is presumed to guard against these , unless it be so exprest ; and therefore , there is little advantage by special clauses of warrandice : for the general clauses reaches all evictions from anteriour causes , yea , the effect is the same , though there were no clause of warrandice exprest , if the right warranted be for causes onerous , viz. sums of money , or equivalent value , unless by the special warrandice , future deeds inferring eviction , or which would not infer , it ex natura rei , be exprest . warrandice is never inferred from infeftments from the king , as supream superiour , and though they were exprest , would have no effect ; neither are the warrandices of infeftments by church-men effectual against their successors in office ; yea express warrandices of feus or tacks of kirk-lands thereafter annexed to the crown , after the said warrandice , doth neither reach the granters thereof nor their successors , par. . cap. . and cap. . the reason whereof is there rendered , because the church-lands were annexed to the crown by subsequent laws . infeftments do frequently bear conditions , reservations , provisions and exceptions , which give great ground of debate , which therefore must here be cleared . there is no question but infeftments may either be pure or conditional , some conditions are implyed from the nature of the right , and are effectual , though they be not exprest . . as in ward-holdings , the vassal cannot alienate without his superiours is consent which , an effectual resolutive condition , whereby if the major part of the fee be alienate , the whole becomes extinct & returns to the superiour as he gave it . . infeftments of warrandice imply this condition , that they should take no effect , but in the case of eviction of the principal lands . infeftments for relief of cautionry , implys this condition , that they shal have no effect till distress , and that they shall ceass by relief . infeftments for satisfaction of sums imply this condition , that the sums being satisfied , they are extinct , and the authors infeftment revives and stands valid without necessity of renovation . . infeftment given for a particular office , and bear not assigneys , or substitutes , as to be an ensign-bearer , advocat , or chaplain , with lands and annual rents annexed , does imply this condition , that the heir be capable to exerce these offices ; and therefore , by his inability they ceass , unless they be granted to assigneys , with power of substitution , in which case they may be performed by another . . infeftments by excambion do imply this tacit condition , that if the one tenement excambed be evicted , there is recourse to the other tenement with which it was excambed , for therein excambion or permutation differs from sale ; this recourse is effectual , not only to the heirs , but to the singular successors of both parties , whether by voluntar or judicial rights ; and therefore , regress was sustained against an appryzing , prior to the eviction , without necessity to instruct that the excamber had right when he changed , it being presumed that he delivered his rights to the other party ; and therefore an old charter from the king , bearing , the lands to have been disponed in excambion for the other parties lands , and expressing regress , but without mention of assigneys , yet was found effectual to a singular successor , july . . laird of wairdess contra laird of balcomie . in this process it was found , that no person needed to be cited but the present proprietar of the lands excambed , and the heir , or appear and heir of the maker of the excambion , july . . inter eosdem ; and that regress was effectual against an appryzer of the excambed lands , it was so decided , december . . earl of montrose contra sir george ker. . the law doth also introduce conditions in infeftments , which do not arise from their nature , as in feus , by the common feudal law , and by special statute with us , whereby if the feu-duty be not payed by the space of two years hail and together , that the feu shall be extinct and lost , parl. . cap. 〈◊〉 . it is therefore beyond doubt , that such clauses are effectual , whether exprest or not exprest in the infeftment . . it is also incontroverted , that liferents one or more may be effectually reserved in infeftments , which will pass therewith as a real burden to all singular successors , and needs no other infeftment . . infeftments are also sometimes burdened with the exception of other infeftments , which exceptions , if they be in the dispositive clause , as a burden upon the infeftment , they are effectual against singular successors . . infeftments are also frequently burdened with faculties or powers to affect or burden the lands , or others disponed , and that either absolutely at the disponers pleasure , for such sums to children or creditors ; which clauses are frequent in the dispositions by fathers to their eldest son , and are very amply interpret against them and their heirs , though the way of burdening might have been defective , as by a base infeftment , not cled with possession , or by bonds of provision , though no infeftment follow , as was found in the case of the relict of robert earl of carnwath contra gavin earl of carnwath . and a disposition by a father to his son , witha power to burden with such a sum , a bond granted thereafter to his daughter , without mention of that power was found effectual against the son , in so far as was not satisfied with the fathers moveables , june . . margaret hopringle contra george hopringle , though these might be more strictly interpret in the case of singular successors , acquiring for onerous causes . and in the case of the creditors of mouswal contra the children of mouswal , who having disponed his estate to his eldest son by his contract of marriage , reserving a power to himself to burden it with such a sum to his bairns , having given them bonds of provision with a base infeftment , the same was preferred without possession , by vertue of the reservation to the posterior publick infeftments of the creditors for prior debts , seing he had then an estate sufficient for all his debts , and his bairns portions . it is no less certain that all the clauses contained in infeftments are not real burdens , affecting singular successors , such as warrandice , which only obliegeth the warrand and his heirs , and is meerly personal ; so then the difficulty remains , what clauses insert in infeftments are real burdens , effectual against singular successors ; first then , if the infeftment bear a provision that the person infeft shall pay such a sum or do such deeds to a third party , this will import but a personal obliegement , and will not affect singular successors . . but if the dispositive clause be expresly burdened with payment of such a sum to the author , or bear , that upon that condition the infeftment is granted , and no otherwaies , such a clause was found effectual against a singular successor , bearing only a provision in the dispositive words , that the lands should be affected with such a sum , and was sustained against an apprizer , november . . caucham contra adamson , here there was a clause irritant in the disposition , but was not in the charter . . provisions or conditions in infeftments , impossible or unlawful , if they be conceived as suspensive clauses annexed to the disposition , they annul the same : but if there be provisions otherways adjected , though they be in the terms of a clause irritant or resolutive , they are void as not adjected . . provisions also inconsistant with the nature of the right , are ineffectual , as if it were provided that the vassal should not owe fidelity to his superiour , or that the right should be valid by the charter without seasine , these provisions are inconsistent and null . . it is much debated amongst the feudists , whither clauses , de non alienando , with an irritancy or resolutive clause , or that the fiars should contract no debt , by which the fee might be alienat , or the tailzie changed ; and they are generally for the negative , that a clause prohibiting contracting of debt , or simply not to alienat , are inconsistent with property , albeit they may be effectual if so qualified . that no alienation be made , or debt contracted to affect the fee , or alter the succession without consent of the superiour , or such other persons ; but that being absolute , they cannot be effectual against singular successors , whereas these limited prohibitions resolve but in interdictions , and being contained in the seasines registrate , they are equivalent to interdictions , published and registrate , though many such clauses have been in tailzied infeftments , yet none of them have come to be debated , but that which was in the tailzie of the estate of stormont , tailzied to annandails heirs male of his body , whilks failing , to balvaird and his heirs , with a clause not to annalzie or to contract any debt , or do any deed whereby the lands might be taken from the heirs of talzie , otherwise the contraveener should ipso facto , loose his right ; and the next person who would be heir , should have right , which being at length contained in the original seasine , and all the subsequent seasines was found effectual to annual the right of james earl of annandail , who contraveened , and of all his creditors who apprized for his debt , febru . . . viscount of stormont contra creditors of annandail . other clauses irritant , consisting with the nature of the right , are effectual against singular successors , as the taking the name and arms of a family . and generally , all real burdens of lands contained in infeftments , though they give no present right to these in whose favours they are conceived , nor cannot give them any fee of the lands , yet they are real burdens , passing with the lands to singular successors , though they bind them not personally , but the ground of the land by appryzing or adjudication , as if lands be disponed with the burden of an annualrent furth thereof , to such a person and his heirs , this will not constitute the annualrent , but may be a ground of adjudging an annualrent out of the lands . in all these cases , purchasers by voluntary disposition , are presumed and ought to see their authors rights , at least a progress of fourty years , whereby they may know such clauses and consider them in the price , or otherways secure themselves against them . but in the only decision of this matter concerning the tailzie of the estate of stormount which did pass with great difficulty , the lords being near equally divided , special consideration was had , that the clause irritant ; de non alienando , was expresly set down in the first and subsequent seasines of heirs , whereby creditors were certiorat of their hazard , if they should lend their money , that they could expect no security threfore by that estate , seing thereby the borrowers right became void ; and therefore , such clauses or any other clauses irritant , or conditions that might evacuat infeftments , or deeply burden the same , when they are not particularly exprest in the seasine , may not only be quarrelled by anterior creditors , but also by posterior creditors , as latent and fraudulent clauses to insnare creditors , who having no mean to know such clauses , do contract and lend sums of money to persons whom they see standing infeft in considerable estates of land. clauses de non alienando , or non contrahendo debitum , are most infavourable and inconvenient , specially when absolute ; for first commerce is thereby hindered , which is the common interest of mankind . secondly , the natural obligations of providing wives and children are thereby hindered , which cannot lawfully be omitted . thirdly , it is unreasonable so to clog estates , descending from predecessors , and not to leave our successors in the same freedom that our predicessors left us , whereby , though they have the shadow of an estate , yet they may become miserable , as if they should happen to fall into captivity , or in any transgression that would infer a considerable fine , against which no such clause can secure , then being disabled to borrow , they behoved to be denunced to the horn , and thereby their liferent escheat fall to their superiour , which no such clause can prevent ; and therefore , if any man have ground to suspect the frugality of his successor , he may provide a part of his estate by a tailzie , disabling that successor to contract debt without the consent of such persons in which he confides , leaving some part of his estate to his diseretion . for such a clause irritant being in the seasine published by registration , may be sustained as equivalent to an interdiction ; such clauses are also much more tollerable in lands acquired by the fiars own industry , wherein if there be insert a tailzie with a clause , de non alienando , to be insert in the original , and all subsequent seasines , and bearing provisions for the wives of successours , not exceeding such proportion of the fee , and for children only to affect such a proportion of the free rent : or if persons having no near relations of value , prefer others of their name or kin to their estates : or in case of mutual tailzies , such clauses limited as aforesaid , may be much more tolerate . but clauses of that nature have never been attempted , but in proper tailzies where they are diverse nominat branches , which are neither heirs of line , nor heirs male to one another ; and where the main design is to preserve the tailzie , for when all the branches are of far relation , the preference of the first is not much above the rest ; and therefore , the other branches have by such clauses , jus acquisitum , and are not simply heirs , but partly creditors to the first branch ; and therefore , though there were no clause irritant , they might reduce alienations meerly gratuitous or fraudulent , especially when done not by the heirs of line or heirs male of him who constitute the tailzie , for these are always in every tailzie in the first place , and while the fee continues in them , it is rather a simple fee then tailzied , as it becomes again , when all the branches of the tailzie fail . the perpetuities of estates where they have been long accustomed , have 〈◊〉 〈◊〉 their inconvenience ; & therefore , divices have been found out , to 〈◊〉 them ineffectual : only the majoratus of spain hath been most 〈◊〉 〈◊〉 and 〈◊〉 , that the king nobilitating a person of merit and 〈◊〉 , either by the kings gift , or his own right , that estate can neither be alienate or burdened , but remains alimentary for preservation of the dignity of that family . but these perpetuities in england are now easily evacuat ; first , by warrands to sell , purchased in parliament , which pass without much difficulty ; and if they become frequent with us , it is like we will find the same remeid : they are also evacuat by a simulat action of fine and recovery , whereby the purchaser pretends that he is unwarrantably dispossest of such lands by the present fiar , who coludes and is silent , having received a price or other consideration , so that these sentences , though collusive , must be irrevocable . in tailzies , the heirs male or heirs of line of every branch , being the issue of the stipes of that branch , do succeed ; and therefore , there is a good caution by the law of england , that after the possibility of issue is extinct , the present fiar , can do no more as to the fee , but what a liferenter could do . the next branch being ordinarly altogether strangers to that fiar , little care will be taken to preserve the fee. in the tailzie of stormount , the whole estate was not comprehended , and it was distinctly provided , that in case any of the heirs of tailzie for the time should contraveen , that the right should be divolved on that person who would succeed , if the contraveener were dead : but in such tailzies , formerly it was not so clearly ordered , being only provided , that the contraveener should lose his right , and the next heir of tailzie should have place , whereby it remained dubious , whether the next branch of the tailzie were meaned , so that the contraveener losed his own interest , and all descending of him : or whether he losed the interest of all descending of that branch : or whether he losed only his own personal interest , wherein the design of the constituter of the tailzie might be dubious enough . . to sum up this important subject of tailzies , let us consider the effects thereof , according to the several ordinary tenors of the same , and how far the fiar or his heirs of tailzie is bound up thereby ; we must then distinguish betwixt tailzies having clauses not to alter , burden or alienat : and these that are simple without any express restrictive clause . secondly , betwixt tailzies made freely , and these that are made for onerous causes . thirdly , betwixt these that have clauses resolutive or irritant , and these that have only such clauses by way of obligation , provision or condition . as to the first case , it is a general rule , that quisque est rei suae moderator & arbiter , every man may dispose of his own at his pleasure , either to take effect in his life , or after his death , and so may provide his lands to what heirs he pleaseth , and may change the succession as oft as he will , which will be compleated by resigning from himself and his heirs in the fee in favours of himself , and such other heirs as he pleaseth to name in the procuratory , whereupon resignation being accepted by a superiour , and new infeftment granted accordingly , the succession is effectually altered ; yea any obliegement to take his lands so holden , will obliege the former heirs to enter , and to denude themselves for implement of that obliegement , in favours of the heirs therein exprest ; and if the superiour refuse to accept the resignation , altering the succession , a bond of borrowed money , though granted only upon design to alter the succession , will be the ground of adjudication of the land , and being assigned to the fiar himself , and to such heirs as he pleaseth , the superiour will be forced to receive him accordingly ; so that the first constituter of a tailzie , or any heir succeeding to him may change it at their pleasure , unless the tailzie be for an onerous cause , as when tailzies are mutual , then the first constitutors of the mutual tailzies cannot alter the same , although their debts may affect the same ; yet no fraudulent or gratuitous deed can alter or evacuat such tailzies ; and therefore , a mutual contract betwixt two brethren , oblieging them , that what lands they should succeed to , or acquire , should be taken to the heirs of their body , whilks failzing , to the brother and the heirs of his body , &c. though thereafter either brother took their lands , otherways to their heirs whatsomever , whereby sisters having succeeded to one of these brothers , they were decerned to denude themselves in favours of the other brother , january . . mr. john sharp contra helen sharp . but if the cause onerous be of less import , then to grant and continue a tailzie , it will import no more then once perfecting the infeftment by such a tailzie , whereby the hope of succession ariseth to these parties in whose favours the fiar is oblieged to take the tailzy , but he was not found oblieged to continue the same , but that he might alter it thereafter , without refounding the money he got for granting it , being but of that value , as was equal only to the hope of succession , which behoved to be understood of alteration , sine dolo , july . . mr. david drummond contra drummond . heirs of provision by contracts of marriage , are in part ouerous , being granted for a tocher , and the interest of the wife concerned ; therefore , they cannot be alterred by the husband at his pleasure , but do exclude all fraudulent , or meerly gratuitous alterations , as hath been shown , section fourty three . but if there bean express obliegement not to alter the tailzie , albeit that will not give title to the heirs of blood of the present fiar , to quarrel his deed or alteration ; yet it will give interest to any other branch of the tailzie , whether to the person nominat or his heirs , to quarrel and reduce such alterations , though it will not exclude alterations by appryzing or adjudication , for debts truly borrowed by the fiar ; and therefore , a tailzie of a sum of money , lent in thir terms , to be payed to the creditor and the heirs of his body ; whilks failing , to the father and the heirs of hsi body ; whilks failing , to a person named and his heirs and assigneys whatsomever , with a provision , that the creditor and his heirs should do no deed hurtful to the tailzie , nor the debitor should not pay without consent of the heir of tailzie named , was found to give interest to that person as heir of tailzie , to declare that the sum was unwarrantably uplifted , or payed without his consent or order of law , by consigning it to be imployed in the same terms , and that though he was heir of tailzie to the uplifter , that he was not oblieged to fulfil his deed or warrand his discharge , being contrair to the terms of the tailzie ; as to which terms he was creditor , reserving always to lawful creditors , how far they could affect the sum for the fiars debt , february . . drummond contra drummond . and a clause in a bond , whereby a woman oblieged her self to resign lands in favours of her self and the heirs of her body , whilks failing , to the heirs of her father , and oblieging her self to do nothing contrary to that succession , whereupon inhibition was used before her marriage , was found effectual against her and her husband whom she married thereafter , and disponed the lands to him and his heirs , asbeing a voluntary deed , without an equivalent cause onerous , albeit the fathers heirs behoved to be the womans heir of tailzie , january . . alexander binnie contra margaret binnie . yet these restricting clauses without irritancy , though conceived as provisions or conditions , if they be not in the investiture , albeit they be in prior obligations , dispositions or contracts , there is no pretence thence to affect the fee as a real burden , and even though they be contained in the investiture , seing clauses irritant uses to be added thereto , they are understood to be but personal obliegements , whereupon no diligence having followed , they cannot be effectual against singular successors , whether by legal or voluntary dispositions : and as to such restrictions with clauses irritant , we shall add no more thereunto , then what hath been said . property being thus constitute by infeftment , it is to be considered what are the particulars it comprehends and implys , though not exprest , wherein this is a general rule , that lands being disponed with part and pertinent , all is carried thereby that falls under the denomination of the lands disponed , a caelo ad centrum , and all that in the time of the disposition was accustomed to follow it , not only as servitudes , but even discontiguous parcels of land which were not known , as distincta tenementa , or parts of any other tenement , except what the law reserves , or the express provision of the superiour . . the law reserves all these things which are called regalia , or jura publica , which the law appropriateth to princes and states , and exempeth from privat use , unless the same be expresly granted and disponed by the king ; and if the superiour be a subject , if he have any of these regalia from the king , they remain with his superiority , unless he expresly dispone them to his vassal , the superiour may have them from the king , either expresly in any tenement holden of the king , or tacitly , when lands are erected by the king , to him in a barrony , or any higher dignity , whereby many of these regalia , are comprehended . barronia being nomen universitatis , yet that will not comprehend , first , mines and minerals of gold or silver , or lead of that fineness , that three half-pennies of silver may be fined out of the pound of lead , which mines are declared to belong to the king , wherever they can be found , par. . cap. . but mines of iron , copper and lead of less fineness , belong to the proprietar , and are not accounted with us regalia , though in some other countreys they be . secondly , neither do treasures found in the ground belong to the kings vassals , though their lands be erected in barronies , unless they were exprest . a treasure is money hid in the ground , the owner whereof is not known . thirdly , though all proprietars have the priviledge of fowling within their own ground , yet swans are peculiarly reserved to the king ; and therefore , the priviledge to kill swans , is not carryed under the name of barrony , unless they were particularly exprest . fourthly , confiscat goods are not carried , even under the name of barrony , unless they be exprest . . yet there are other regalia , which are carried under the name of barrony , though not exprest , as jurisdictions and courts , fortalices , salmond fishing , forrests , and hunting of deer ; and ports with their pettie customs , established by the kings grant , or long possession , for repairing and upholding these ports ; which therein differ from creiks or stations , which are natural ; but ports are builded artificially , and need reparation . . jurisdiction and courts are comprehended in barrony , in so far as concerns civil jurisdiction and blood-wits , or lesser crimes , but will not reach to capital punishment , unless the same be exprest , as it uses to be when the priviledge of pit and gallows are exprest , or out-sang and in-sang thief , which seems to extend to the punishing of no more crimes but theft ; and these who have only in-sang theft , can only punish thieves taken in the fact. though courts be exprest , they will extend to nothing criminal , no not to blood-wits , unless these be exprest ; but only to civil debates requisite for the propriatar , as to determine differences amongst his tenents , neighbourhead , multars and smaller matters ; or to constitute a baily , who may judge betwixt the propriatar and his tenents , as to his rents , duties and services ; and also may determine differences amongst his tenents . but all jurisdiction is cumulative with , and not exclusive of the superiors jurisdiction , so that there is place of prevention . the first atatcher , if he proceed is preferred : and if the superior and vassall atatch together , the superior is preferred . . the courts of vassals , though they be barrons , and have the priviledge of capital punishment , are not of the same extent and importance , as the sentence of the judges ordinary of the kingdom ; such as sheriffs , stewarts , bailiffs of royaltie , regality and burghs . for first , the extent of their jurisdiction is not so ample . secondly , the jurisdiction of all barrons and free holders , was of old subordinat to the sheriffs and other judges ordinary , within whose jurisdiction the lands lay , par. . cap. . and then there was place for falsing of doom , or appeal to the sheriff-court , who was to warn the parties upon fifteen days , and make the suiters of the sheriffdom ward thereupon . whereby it appears , that the free-holders of the king , who owed suit to the sheriff-court ; at least an inquest of them were to concur with the sheriff in discussing the appeal from the baron or free-holder : but now these appeals or falsing of dooms from any court to another , have been antiquated , and wholly in desuetude since the introduction of advocati ons , which is a far more excellent remeed ; for thereby causes are not stopped at the choice or humor of parties : but the reasons of advocation are specially considered by the lords , whether they be relevant , and have such instructions as can be expected before discussing ; and the subjects are further secured by the late act of parliament , that poinding cannot proceed without a charge be given and expired , which in all decreets , proceeding upon citation , requires fifteen days : in which , address may bemade to the lords . thirdly , decreets of barons have no execution by horning , which goeth of course upon the decreets , precepts and executions of other judges ordinary ; so that all the execution upon their sentences , is only poinding , or corporal punishment . as to which , if there be any process for capital punishment , the lords will very easily grant advocation , as they do advocat causes from inferiour judges , not only upon incompotency , but upon intricacy and importance : so there being nothing more important then the life of man , they would easily advocat such processe , wherein barons should not proceed summarily to execution . but both they and other inferiour judges ordinary , should after sentence at least abide terms of law by the space of fifteen days , that the lords may give remeed by advocation or suspension of execution : for though the lords have not criminal jurisdiction , they do ordinarly advocat , and by the same reason may suspend criminal processe , to the effect the same may be remitted to competent and unsuspect judges ; so that if there were any doubtfulness in the case , the lords would remit the cause to the justices . fourthly , the courts of barons or free-holders are not courts of record , in which writes use to be registrat . . as the courts of barons and free-holders have these restrictions more then the inferiour judges , so they have this advantage ordinarly , that all the profits and issues of their courts belong to themselves ; whereas , sheriffs , stewarts and baliffes of royalty are countable to the king , seeing these are the kings courts : but baliffes of regality are not countable , because though they be the kings courts , yet the king hath gifted the profites of the court by the erection of the regality . if then an infeftment contain courts , the profites thereof are carried therewith , though not exprest ; but ordinarly they bear cum curiis earumque exitibus . and therefore the amerciaments of courts , or there other issues , or there priviledge on the breakers of arreeistments , loosing their tacks to their masters within their barronies are not comprehended within publick confiscations reserved to the king. . fortalices are also inter regalia , and are not carried by the fee , unless exprest , or at least the lands be erected in barrony . by fortalices are understood , all strengths built for publick defence ; whether that appear by common fame , or reputation , such as all the kings castles , whereof many are now in privat hands , as proprietars , or heretable keepers thereof , or constables of the same ; such are the castles of dunstafnage , carrick , skipnes , and others belonging to the earl of argyl ; the constabulary of forfar , belonging to the earl of strathmore ; the constabulary of dundie , now belonging to the lord hattoun : and when these castles are disponed , either in property or custody , the infeftments thereof carry therewith , not only the bounds of the castle , but the dependencies thereof , as gardens , orchards , parkes , meadows , and other ground possest by the king or keeper for the use of the castle , and all rents , annuities , jurisdictions and priviledges thereunto belonging ; which may be instructed by their charters , their court-books , or other writes or instruments , and even by witnesses , proving long possession ; albeit the infeftments of constabulary , bear only in general , officium constabularii cum feodis & divoriis ejusdem , which was found to extend to the proclaiming and riding of fairs , anterior to the constitution of the office , and exercing criminal jurisdiction in the town where the fairs were held , during these fairs , but not to extend to other fairs recently granted by the king , or to jurisdiction at other times , july . . earl of kinghorn contra town of forfar . the like was done in the process , betwixt hattoun and the town of dundie , in anno . wherein multitudes of witnesses were examined upon either part . and the emoluments , priviledges , and jurisdiction of the constabulary , were decerned according to the probation ; and particularly , shillings sterling yearly , for which the town of dundie counted in exchequer , as belonging to the constable , which was found to belong to the office , albeit there was a discharge thereof granted to the town by scrymzour , constable of dundie , which was not found effectual against hattoun , his singular successor in the office by apprysing , december . . inter eosdem . . the case is more doubtful as to other fortalices , which are not repute to have been the kings castles . craig's opinion is , that all strong holds are presumed to have been builded for publick defence , and not for privat safetie : wherein turris pinnata is comprehended , having turrets or rounds upon the angles ; from whence , shot may be directed alongst all the walls . and therefore much more may castles with bartizens or bands , that is strong and high walls surrounding the castle : or if the castle be built upon a place naturally strong , which may give suspition to the king to be an occasion of rebellion , and not to be patent and accessible at his pleasure ; and most of all , if there were regular fortifications of stone or earth . certainly such fortresses or fortifications , whereby places are made of that strength , which is accustomed to secure against publick enemies in war , may not be builded without the king's warrand ; and if otherwise built , may be demolished , and the builder punished : but long possession presumes a warrand . and as such fortalices may be presumed to have been at first the kings , from the very inspection of the fortalice and its proper use , so long possession may take off that presumption : and that they have been built mainly for privat use in times of trouble , with the kings consent . but we need not insist in these questions , seeing towrs and fortalices do now pass in course in charters : yet , though these were exprest , if it appear the fortress hath belonged to the king , and can be comprehended in the annexed property , the right of them will only resolve into an heretable keeping : so that the king in time of war or insurrections , may make use of such strong holds , and put garisons therein , seeing keeping doth not exclude the kings own necessary use : neither will the expressing of fortalices generally , impower the vassal to build such strengths as are proper for publick war ; because the clause can only import such fortalices as then were built . but i see no ground to extend fortalices to all houses , with batlements , or with turrets , or rounds , which can only infer private safety against robbers , plunderers , or flying parties ; but nothing proper for a seige , or publick defence of a kingdom : and therefore these may pass as houses or pertinents . and as to that ground craig adduces , that it is treason to hold any fortalice against the king , or to deny him , or these commissioned by him access by armed force : and yet delivery of any other privat right may be refused to the king without hazard . whence he inferreth , that the king must have greater right and interest in all such fortalices than in other things . this consequence is not good ; for that which infers treason , is the holding out of the house , and denying access to the king by armed force , which will be treasonable in any house , whether it have battlements or turrets or not ; but cannot infer that all houses with battlements or turrets , were built for publick defence , and did once belong to the king ; which recent custom doth further clear , there being nothing more ordinary , then to build houses with turrets or rounds upon the angles , without warrand , quarrel , or suspition ; these being rather for ornament then for strength . . forrests are likewise inter regalia , being places destinat for deer for the kings use and pleasure in hunting , which cannot be extended generally to woods , but only to such where deer have been keeped : for certainly , woods are partes fundi privati , and are not inter regalia , in any nation , but forrests for keeping of deer , remain inteir regalia , altho the wood should fail : and wherever deer are keeped as proper , and others debarred from hunting there , it is presumed to have been a forrest proper to the king. and though the lands being in baronia , may carry the priviledge and office of forrestry , which gives the baron right to hunt , kill , and make use of the deer : yet he will be but held as keeper , or forrester , which will not exclude the king to hunt and kill the deer for his own proper use ; for the property of the forrest will never be understood , if it be not very expresly granted . forrests have great priviledges , and peculiar customs ; for whereas no man is oblieged to herd his cattel off other mens ground or corns , or to be answerable for the skaith they do , longer then in hayning time , while the corns are upon the ground : and if any man have a minde to keep his neighbours goods off his ground , he may do it ; but he must herd his ground , and may turn off his neighbours goods without wronging them , but cannot put them in pondfold . yet if any mans goods be found in forrests , they become escheat , and are confiscat ; two thirds to the king , and one third to the forrester : and if any baron or landed-man , have hained woods , or forrests of their own , they may escheat all goods that bees found therein to their own use , par. . cap. . where privat forrests of subjects , are only understood such as are inclosed with a sufficient dyke : the words of the statute bears , hained woods or forrests , which cannot be hained without inclosure ; but the kings forrests are large tracts of ground , which neither have been , nor can be inclosed : and therefore all the neighbouring heretors and possessors , must either herd their goods off these forrests , or loss them . upon this account it was , that the king having by a signature under his hand , grantend a forrestry to the laird of fascally ; the exchequer , before passing thereof , desired the lords of session to consider and report what by law was the priviledge , conveniency , or inconveniency of forrests : and they having heard the obtainer of the forrest , and the neighbouring heretors , did declare the priviledge of a forrest to be as aforesaid , june . . whereupon the exchequer did represent to the king , the inconveniency to grant new forrests . the comptroller had the inspection of the kings parks and forrests ; and it was lawful to the comptroller , or any having the kings warand , to intromet with all goods in the kings forrest , not put in by the comptroler , or these having power from him , and to apply the whole to the kings use , par. . cap. . and by the former statute , the forrester or keeper is prohibite to put any cattel in the forrest belonging to himself : so that if the keeper first seize upon goods in the forrest , he hath the third ; but if the comptroller , or these having warrand from the king , does 〈◊〉 seize , the keeper hath no share . there are many more customes and priviledges of the kings forrests and chaces in england , where the forrester or keeper hath only the branches of trees , and the bark thereof , and such as are fallen or decayed : and as skeen observes , that he may take a tree as high as his head ; but our heretable keepers have much more priviledge , and may make use of the wood and deer , so as not to destroy either , and with a reservation for the kings proper use . the hunting or killing of deer seems to be inter regalia with us , except these who have them within proper inclosures , for otherways the kings forrest having no inclosure , the dear by straying abroad , would easily be destroyed ; and therefore , though every man may hunt them off his ground , by which they will be forced back to some forrest , yet they may not kill them . . salmond fishing is also inter regalia ; and therefore , passeth not ordinarly as pertinent , and ought to be exprest in the infeftment ; yet in some cases salmond-fishing hath been found constitute without special expression , but only by the common clause , cum piscationibus , and long possession , june . . lesly of creik contra forbes of thainstoun ; in which case it was found , that salmond-fishing is only inter regalia , as it is a casuality , fluminis publici , such as are navigable rivers , wherein there is a common use of passage and transportation , in like manner , where lands are erected in a barrony , or any other dignity , salmond-fishing may be carryed by the the common clause , cum piscationibus , as when it bears fishing in salt and fresh water , though without mention of salmond-fishing , hope , fshing , laird of glenurchy contra alexander cambel . so an infeftment to a burgh-royal , bearing , cum piscationibus & piscariis , with immemorial possession , was found to give them right to salmond-fishing and cruives , though none of them were exprest , january . . heretors of don contra the town of aberdene . january . . brown of nuntoun contra the town of kirkcudbright . it was also found constitute by the infeftment of a sheriffship , and fourty years possession , though the infeftments bore only emoluments in general , december . . earl of murray contra the feuers upon the water of ness , marquess of huntly and town of inverness . it was also found constitute by a bishops charter of londs , cum piscariis , bearing a reeddendo of salmond , though th bishops right from the king , was not produced , but presumed , and being a dignity prefected by long possession of his vassal , january . . brown of nuntoun contra the town of kirkcudbright . and likewise , long possession by the space of fourty years , was found to give right to a salmond-fishing upon both sides of the water , and drawing the same upon both sides , though the infeftment bore , but fishing upon one side , hope , fishing , lady monymusk contra forbes of barns . a clause , cum piscationibus , was found to be a title for prescription in baronia , and that fourty years uninterrupted possession constitutes the right of salmond-fishing , february . . fullurtoun contra earl of eglintoun : it is more dubious what the meaning of the clause , cum piscationibus , simply or of fishing in salt water can import , seing there are common freedoms of every nation to fish into the sea , or into brooks or rivers for common fishes ; and therefore , needs no special concession from the king or other superiour , but the use thereof may be first ; that it may be the title or foundation of prescription of salmond-fishing , not only in fresh-water , but in the sea , at the water-mouth where they are frequently taken : and also , that in other fishings , if a prescription run of interrupting and hindering others to fish whatsoever sort of fish , it will constitute a property thereof , which could not consist without this clause or the like , as a title ; neither could it be comprehended as annex , or connex of lands , or as a servitude , being a distinct right , having so little respect to land. . there is a special way of fishing by cruives or zaires , both in fresh water and salt , all such cruives are absolutely prohibite to be set within rivers , in so far as the tide flowes , as being destructive to the frey of all fishes . parliament . cap. . renewed par. . cap. . par. . cap. . and as to other cruives in fresh water , they are also prohibite by the said last statute , except such as are infeft in cruives , lynes , or loups , within fresh water , who are to enjoy the same according to their rights , keeping saturdays slop , and the due distance betwixt the hecks , the distance of the hecks by the act of parliament , . cap. . is exprest to be three inches conform to the statute made by king david ; but the act of parliament . cap. . expresseth the distance to be five inches , conform to king davids act : and in both these statutes , besides the distances aforesaids , saturdays slop is appointed , and likewise , that the mid-stream by the space of five foot be always free ; and that no cruives be made use of in forbidden time of year , when salmond may not be taken , which is declared to be from the feast of the assumption of the virgin mary , unto the feast of saint andrews in winter , parliament . cap. . few debates have occurred concerning cruives , notwithstanding the great notice thereof by so many of our kings , one did lately occur , and was fully debated , in presentia , betwixt the heretors of the water of don and the town of aberdene , which was mainly decided on january . . the case was thus , the town of aberdene having changed a cruive-dyke to another place within their own bounds , and built the same there again of new , whereupon the heretors who had right to the salmond-fishing upon the water of don , above these cruives , raised a declarator against them , wherein , after large disputes concerning saturdays slop , and the mid-stream , and the distance of the hecks , and the height of the cruive-dyke , and whether it ought to be built sloping or perpendicular , and whether it might be changed to the prejudice of the heretors ; the lords found , that the town of aberdene might change the cruive-dyke , keeping it within their own bounds , and having no more dykes but one ; but found , that seing they had a cruive past memory without interruption , which had determined the height and frame thereof , they found that the new dyke behoved to be built in all things conform to the old , and with no more detriment to the saids heretors fishing , then was formerly before the water had pooled at the old dike ; and so it was not determined how high a cruive-dyke might be , or whether it behoved to be sloping or not , where prescription had not determined , which is very seldom : it was also found , that the distance of the hecks ought to be three inches , conform to the act of king james the third , par. . cap. . and not five inches , according to the act of king james the fourth , par. . cap. . which mentions five inches , which the lords found to be a mistake in the transcribing , or printing of the act of parliament , in respect that both this and the former act relates to the statute of king david as the pattern thereof , which mentions but three inches , and that hecks of five inches wide will be of no use , nor hold in any salmond ; the lords also found , that the saturdays slop behoved to be observed , not only in one cruive , but in all the cruives of the dyke , and that by pulling up the hecks of each cruive by the breadth of an ell , to continue from saturday at six a clok , till monday at sunrising ; and the lords found , that part of the statute concerning the mid-stream , to be indeed distinct from saturdays slop , but they found that part of the statute concerning the mid-stream to be in desuetude , in all the cruives of the kingdom , and that it is not repeated by the act of king james the sixth , par. . cap. . and therefore , found the same not obligatory , notwithstanding that in the late act of parliament , . there is an act ratifying all the old statutes concerning cruives , which was alledged to revive that point of the mid-stream , which the lords did not respect as a general law , albeit the confirmation did run in these terms , because it past the parliament without notice , as an ordinary confirmation , at the impetration of their pursuers , and did not pass the articles , and was not appointed to be printed as a publick law. . milns are not carried as part and pertinent , because they are esteemed as separata tenementa , requiring a special seasine , unless the lands be in barronia , for then infeftment in the land , carries the milns thereon ; yet a miln being built upon a liferenters land , after her infeftment , bearing , cum molendinis , was found to belong to the relict , though milns was not in the dispositive clause ; nor was she in conjunct-fee of a barrony ; but she was not found to have right to the astricted multures of any lands , but her liferent lands , february . . lady otter contra laird of otter . . the priviledge of brewing being designed for publick use , for common hostlaries , the inspection whereof is committed to the judges ordinary , magistrates of burghs , sheriffs , bailies and barrons , who are appointed to settle hostlaries in convenient places , and to visite their measures if they be sufficient , and the goodness of their ale , par. . cap. . and the saids magistrates to burgh or landward , are ordained to see reasonable prices for meat and drink in hostlaries , with power to deprive them of their priviledge , if they transgress , so that a barrony carries that priviledge , though not exprest ; but infeftments of other tenements carry it not , unless it be expresly granted by the king immediatly or by progress , that is , that all the superiours interveening betwixt and the king , have that priviledge , july . . stuart contra brewers ; but in possessorio , the proprietars infeftment bearing , cum brueriis , will be sufficient , and presume the progress , unless that priviledge be craved to be reduced , wherein the superiours must be called . . all other interest of fees are carried as part and pertinent , though they be not exprest ; and albeit woods and lochs , use oft to be exprest , yet they are comprehended under parts and pertinents ; and therefore , the master of the ground hath not only right to the water in lochs , but to the ground thereof , and may drain the same , unless servitudes be fixed to water-gangs of milns , or other works , and the ground of the loch , and all that is upon it , or under it , is a part of the fee : but if the loch be not wholly within the fee , but partly within or adjacent to the fee of another , then unless the loch be exprest , it will be divided amongst the fiars whose lands front therupon . the parts of fees are only exprest in bounding charters , but in all others the parts are only known by the common reputation of the neighbour-hood , what they comprehend under the designations exprest in the infeftments , and by possession , as part and pertinent of the lands designed in the infeftment , whether they have but one common designation , as such a barrony or tenement , or if there be an enumeration of their parts , by distinct names , which doth not exclude other parts , though belonging to none of the parts enumerat ; there is only this difference , that expresse infeftments are preferable to these which alledge but part and pertinent , much more if it be alledged to be separatum tenementum , requiring a distinct infeftment ; and yet prescription , as part and pertinent , will exclude an infeftment as a separat tenement : but where there are march-stones set , it is a great convenience to preserve peaceable possession ; and though it cannot be proven when these marchs were set , yet their being repute as march-stones , will be sufficient to defend at any time , within prescription : but lands are oftimes so large , comprehending mures and mountains , that march-stones cannot be set ; for remeid whereof , the lords of session by an act of sederunt , . ratified in par. . cap. . ordained all molestations in property or commonty , in possessorso , to be before sheriffs , bailies of regalitie , and other inferior ordinar judges where the lands ly , and for that effect , the lords will direct letters of cognition to proceed upon fifteen days warning , by an inquest of persons who best know the matter , the most part thereof being landed-men , having at least , four ploughs of land , or three hundred merks of irredeemable rent , and the rest substantious famous zeamans of the same paroch , and failing thereof , of the paroch nearest adjacent ; and if both parties have cognitions raised before litiscontestation on either , the half of the assyzers shall be taken of these summoned for either party ; or in case there be not a sufficient number of them habile , the judge shall supplie the same , and the odd man to be chosen by lot : which inquest shall visit the ground , and shall return their verdict upon oath , both upon the clames and exceptions of the parties ; and in case the judge ordinar be suspect , or that the lands ly in divers jurisdictions , the lords are to appoint unsuspect judges to be past under the quarter seal there are only excepted the actions belonging to the members of the colledge of justice , which are to be before the lords ; yet the lords are accustomed to grant commissions to some of their own number , where questions arise concerning the parts or marches of tenements , to visit the ground , and there to receive witnesses , hinc inde , both as to possession and interruption , which the lords do advise , and determine without an inquest . parts of tenements in possessorio , are sustained by the present peaceable possession for some time ; for seven years peaceable possession will sustain the right of the whole till reduction : and fourty years possession as part and pertinent , is sufficient , in petitorio , for the point of right , and will exclude an infeftment express , yea , though it be an infeftment , as distinctum tenementum , november . . walter young contra william carmichael : but if there be interruptions , and that either party hath had some possession , the express infeftment will be preferable , and any lawful interruption will preserve an infeftment of a separate tenement ; but if neither party be expresly infeft in the lands in question , interruption by either party will not exclude prescription , because there is not a prior special right , valid of it self , without possession ; and therefore , if both parties have had mutual or promiscuous possession , each possessing when they could , and turning off the other , that part of the land so possest , will continue as a promiscuous commonty , which frequently falls out about the marches of large tenements , and was so determined betwixt the lord strathoord and sir thomas stuart of gairntully ; if neither party have an express or several infeftment , discontiguity will not exclude part and pertinent , though , if the question be with him , to whom the land is contiguous , less probation will prefer him , craig l. . dieges . . relates a case in his time betwixt the earl of angus and hoom of polwart , where discontiguity did not exclude part and pertinent , not being known as a distinct tenement . pertinents comprehends all the natural fruits , for corns are accounted as moveable , and as no part of the ground , as hath been shown in the former title , section second . and also all servitudes ; so a servitude of a pasturage , in another heretors wood , was sustained as a pertinent by long possession , spots . servitude , laird of knockdolian contra tennents of partick . and part and pertinent being exprest in a minute of sale , it was found to carry common pasturage in a mure , which was a commonty to a barrony , whereof the lands sold was a part , february . . william borthwick contra lord borthwick . and in the case betwixt the laird of haining and town of selkirk , decided february . . a barrony of the kings , cum pertinentibus & cum pascuis & pasturis , was found to carry common pasturage in the mure of the barrony , and that the last fourty years possession did presume the like possession in the feuars , from the obtaining their feues ; and that interruptions by the town whose infeftment was but general , cum communiis , did not exclude the pasturage of the feuers , who had also made interruptions against the town . . craig , l. . dieges . . debates this question , whether wood and coal be parts of the ground , or only pertinent as fruit thereof , for if these be parts of the ground , conjunct-feers or liferenters will have no share thereof , nor donatars of ward , non-entry , or liferent-escheat , so that the question is very important , wherein he relates two decisions , one betwixt the lord seatoun and his mother , who being served to a terce , was found to have right to the third of a coal-work , constantly going for sale in the defuncts time ; and another betwixt ramsay of dalhousie and mary ballantine his predecessors relict , in relation to a wood which the fiar was found to have the only right to sell , and his opinion is , that both are parts of the fee , and that no conjunct-fiar , tercer , superiour or his donatar hath any interest therein , as being no part of the fruits ; he pursues the same question as to wodsetters , who are infeft in fee but under reversion , to whom he attributes a greater interest , that they may make use of coal as their authour did , yet only for their proper uses . and as to an appryzer , he relates the case of sir james hamiltoun , who having appryzed the estate of camnethen , and cut down all the woods , he was found to have no right to the woods during the legal , for then appryzing were not satisfied by intromission , so that during the legal , they had nothing but the fruits , for which they were not countable : now the case is altered by the act of parliament . whereby the appryzers intromission in so far as exceeds his annual , is imputed to the principal sum ; and therefore , he may continue in the profite of coals and woods , as his debitor was accustomed . but as to liferenters by terce , or by distinct liferent by provision , where the husband himself did not preserve the wood , to be sold together , as sylva cedua , but cutted parts of it for his own and his tennents use , for reparation of their houses ; liferenters and tercers may do the same . and where woods are divided in so many haggs , that they yeeld a yearly profit , in that case the heretor hath rather used them as fruits , then as parts ; so that liferenters , tercers and donatars , many claim the same ; yea , if a coal be a constant going coal without apparent hazard of exhausting , it is like conjunct-fiars , tercers , or donatars , will not be excluded therefrom , not exceeding the measure and method accustomed by the fiar : but otherways , coal is to be considered only as a part , and is carried as a part , though not exprest , nor in barrony , as craig in the forecited place observeth , to have been decided betwixt the sheriff of air and chambers of gadgirth . and a party first infeft in land with the pertinents , without mention of coal , was preferred to an express infeftment only of the coal-heughs of that land , january . . lord burley contra john sim. . let us now express the meaning of the specialities , ordinarly insert in infeftments , cum domibus aedificiis , comprehends all houses and buildings , as dykes of yards or parks , which though dry , unsemented stone cannot be altered by the seller , after the vendition . and there is a new priviledge for incouragement of inclosing , that where the inclosnr falls to be upon the march of any other inheritance , the other heretor , though making no inclosure , shall be at equal expense of that part of the dyke which marcheth both , par. . cap. . which was sustained , though the march was a stripe of water , being sometimes dry , july . . earl of crawford contra rig. but how far this clause will be extended to fortalices , hath been now showen . and though charters do frequently bear , mannor-places , yet both is carried under the name of part and pertinent . cum mollendinis multuris & eorum sequelis , milns and multures have been spoken to already : but as to multures , they are to be considered amongst servitudes real , title . under thirlage . . cum aucupationibus , venationibus , piscationilius , signifie priviledges , to kill fowles , fishes and wild beasts , upon the fiars own ground , from which he may debar others , indirectly by hindering them to come upon his ground , except upon the publick high-wayes , or such privat ways only in favours of those to whom they are granted , which is seldom done , but ordinarly permitted ; yet if laborrows were used , these might infer a contravention ; but by this clause , the vassal hath no property in the wild beasts , fowles or fishes , which belong to none , but become proper to these who take them , except fishes inclosed in ponds , deer in parks , or fowles in vollaries , for these are proper , only by excluding of others to come upon their ground : the vassal hath the sole occasion of taking such as are found there ; neither doth this clause extend generally , for thereby swan or deer may not at all be killed or taken , nor salmond , or their fry , unless that power be exprest , or that the land be in barrony : nor can fowl or hares be taken in the time or manner prohibit by law , and albeit some do adject fishing in salt water , and in fresh , yet that imports nothing , no man being excluded from sailing and fishing upon the sea , which even in lochs and creiks is publick to all that kingdom or nation ; albeit other nations may be excluded from fishing , so far as any bound can be perceived in the sea , for in so far , kingdoms and nations have appropriat the sea , and made it publick peculiar to themselves , as to fishing and profites thence arising , though passage cannot justly be denyed upon the land , as upon the sea , except to enemies . yet salmond-fishing in salt water and fresh , gives not only priviledges within rivers , but at water-mouths in the sea. cum petariis , turbariis , signifies the priviledge of fewel , by peats and turss in mosses and mures . . cuniculis , cuniculariis , cunnings and cunningares , craig doubteth , whether these may be made indifferently by all vassals , except a priviledge be derived from the king , because of the great damage the cunnings do to the neighbourhood : but there is with us no restraint , but upon the contrary , a command that every lord and laird make cunningares , par. . cap. . . cum columbis columbariis , doves and dovecoats , though they are carried as pertinents , yet are they restrained by act of parliament , . cap. . to such as have two chalders of victual in rent or teind within two miles of the dovecoat . cum fabrilibus brasinis , are smiddies and kilnes for making of mault . genestis , are whins or broom . sylvis nemoribus , virgultis , lignis , are several kinds of woods or timber . cum lapicidinis lapide & calce , are all kinds of stone , and quarries thereof . of courts and their issues we have spoken already , and likewise of blood-wits . . cum libero introitu , & exitu , doth not only signifie the passage by the high-ways , but such other passages as are necessary and convenient for the fiar , through the ground of the superiour , or any other where ways are constitute , by concession or prescription . . herzelds also being the best aught , as the best horse , ox or cow of the tennent dying upon the ground , is introduced by custom , derived from the germans , as the word of their language , expressing the same evidenceth ; which signifieth the gratuity left by the labourers of the ground to their master , and which is due by custom , whether left or not ; and therefore , rather from custom , then from the nature of the fee. and we have neither rule nor example for paying it by any , but by the labourers of the ground , so that though it be not exprest , it is not reserved to the superiour , but belongs to the vassal , as skeen observeth ; but whereas he seemeth to make a herzeld due by tennents , possessing four oxen-gang of land , to their masters going to the war , by poor tennents , possessing only four ongat of land or less , such not being able by reason of poverty , to go in person with him ; yet the constant custom layeth herezelds most upon tennents possessing more lands , and generally upon all who are not cottars , not paying immediately to the master , but to his tennent dwelling upon the ground , and there is no difference whether he be mailer or fermer , only due at the tennents death . the herezeld was found due to the lady liferenter , though the defunct had the room in steelbow , hope , herezeld , lady tockrig contra oliver baird . but not where the defunct tennent was warned and decerned to remove , hope , ibid. walter callender contra his tennents . and craig observeth , lib. . dieges . . that a herezeld being taken , the tennents successor is not to be removed for a year , so it was found , march . . auchnacloich contra mathie . . steelbow goods set with lands upon these terms , that the like number of goods shall be restored at the issue of the tack , do not pass by disposition of lands , as pertinents thereof , unless they were exprest , but do remain as moveables arrestable , december . . lady westmerland contra earl of home . january . . 〈◊〉 dunda , contra george brown ; and so they fall under single escheat , and cannot be taken from the tennent till his tack run out , decem. . . lawson contra lady boghal . having considered the nature , tenor , and import of the several kinds of feess , it is now proper to consider the legal effects thereof , which are either , injudicio possessorio , or petitorio . . in possessorio , all infeftments cled with lawful possession , during the time prescribed by law or custom , are valide and effectual , either in pursuit or defence , ay and while they be reduced , and thereby not only is the fiar , or these deriving right from him , secure to possess , and cannot be impeded , or disquicted by any other right , though it would be a prior and better right , in petitorio ; but thereupon all possessory actions , may effectually proceed for mails and duties for removings of tennents or possessors , for perambulation or cognition of marches , much more for intrusion , succeeding in the vice of removed tennents , or ejection , as to which , possession alone is sufficient . the motive introductory of this priviledge in possessory judgments is , because infeftments are ordinarly granted subalternly , there being many superiors betwixt and the supreme , and each superior keepeth his own infeftments , and gives to his vassal out a charter and seasine holding of himself : and therefore no perfect right of the ground can be instructed , but by a deduction from the king the suprem superior , or by prescription ; and therefore in petitorio , whereby the full validity of the right is declared or decerned , before a full issue , all the interveening superiors must be called to produce their rights till the common superior , from whom both parties derive right ; so that neither party can quarrel his 〈◊〉 , which requires a long course of time . and therefore , he who by infeftment is suffered to possess for a considerable course of time unquarrelled , the law presumes his right is good , and he is not only secure , not to be comptable for the rents and profites he has enjoyed , which require no course of time , but bonae fidei , possessor facit fructus conjumptos suos , of which in the former title , § . . but he is even secure , for all that he shall enjoy , until in a petitory judgement by a declarator or reduction , he be put in mala fide by the production of another right , appearing evidently to be better and exclusive of his , till which , he is not to doubt of his own right , but may safely and quietly enjoy and spend the fruits . the time required by law or custom for attaining this priviledge was undetermined , and in arbitrio judicis at first ; but it was not sustained upon two years possession , july . . auchterlony contra annan . it was sustained upon fifeteen years possession ordinarly ; and then upon fourteen years possession , july . . sybald contra stuart and upon ten years possession , november . . hamilton contra dick. march . . monnypenny contra tenents . it was also sustained upon seven years , possession , decemb. . . irving contra gordon , hope , confirm . earl of arran contra tenents of camely , and earl of seaforth . and it was once sustained upon six years possession , march . . feurd contra stivenson . yea , once upon three years possession , hope , possession , murray of lochmaben contra his tennents . but now of a long time , it hath been fixed to seven years possession ; and it was not only sustained as to lands , either as to the fiars or liferenters , but also to multures , where the lands and quantities of multures were particularly exprest : but it was not sustained upon an apprizing without infeftment or charge , feb. . . mr. george johnstoun contra charles erskin . neither was it sustained upon obtaining decreets , or lifting of seven years rent together , but continuing in possession by the space of seven years , by labouring or uplifting the rent , january . . harper contra armour . neither upon possession as part and pertinent , the possession being vitious and violent , june . . mr. heugh maxwel contra ferguson . the like where the possession was interverted , june . . menzies of sckian contra campbel of torerick . neither upon apprizing and infeftment , against an other apprizer within year and day , july . . balie baird contra bailie justice . neither was it sustained against an apprizing , for the avail of a marriage being debitum sundi , december . . patrick hadden contra john more . neither against the king nor his donatar , seeing the king needs no reduction , and cannot be prejudged by the neglect of his officers not pursuing in seven years , january . . laird of blair contra lady heslehead . neither against a liferenter , unless the possession had been seven years after her husband's death . neither against recourse upon infeftment of warrandice after eviction , which requires no reduction , january . . elizabeth broun contra john scot. the like , unless there had been seven years possession after the eviction , february . . mr. john forbes contra innes . neither is it ever sustained against infeftments of annualrents , feu-duties , or other debita fundi , june . . adamsons contra lord balmirrino . neither have annualrents the benefite of possessory judgements for them , more then against them . but it was not found relevant to exclude a possessory judgement , that there was interruption by citation , not being within the last seven years , july . . earl of wintoun contra gordon of letterfary . nor because the matter became litigious by a denunciation and apprising , june . . sir william stuart contra murrays . it uses to be contraverted , whether seven years possession be relevant , against an infeftment cled with possession immediatly before the seven years : as to which , there have been decisions upon both parts , wherein the reconciliation may be , that if the seven years possession entered not by order of law , or by consent of these who were then possessors , but entered in the void possession , or obtained the rents from the tennents of consent ; such possession was vicious , because the former possessor continued to possess animo ; but if the former possessor had long forborn to possess before the seven years , or that the subsequent possessor entered by authority of law , or consent of the former possessor , there is no reason to make difference , whether his competitor was in possession before or not . . charter and seasine are sufficient , both for pursute and defence , where there is not another infeftment that comes in competition but when two infeftments of the same subject compete , if neither have had seven years lawful and peaceable possession ; then the point of right comes to be debated without reduction , and either party must propone their alledgeances upon their authors rights , in the same way as in declarators of right ; and whatsoever points are found relevant for either party , or where the rights alledged on are ordained to be produced before the relevancy be discust , terms will be assigned to either party , and they will get incident diligences by exhibition against their authors to produce , and ordinary diligences for producing their own or their predecessors rights : and whatever the event be , either party will be secure , as to the by-gone fruits consumed , bona fide . the effect of infeftments in the point of right is , that by the first perfected infeftment , with the several requisites aforesaid , granted by him who had power , the property is established , and the proprietar will be preferred , at least in petitorio to all posterior rights ; but if the granter have no power , as not being validly insest himself , or being impeded by inhibition or interdiction , or by anterior diligence making the matter litigious , he cannot validly confer a right . concerning interdictions we have spoken before , tit. . litigiousness falleth in amongst the effects of legal diligence . but it will be proper here to speak of inhibitions , seing the effect thereof reacheth only as to heretable rights , and cometh not so properly elsewhere under consideration . . inhibition is by letters under the signet , prohibiting the party inhibite to dilapidate or dispone any of his lands , heretages , &c. which is understood , till the cause , for which the letters were direct mentioned therein , be satisfied . it proceedeth summarily upon supplication , and production of any ground thereof , whether obligation or process : and though it pass of course , yet sometimes is refused , as to a wife upon the contract against her husband , jan. . . hamiltoun supplicant . and to an appearand heir , against his father upon his fathers contract of marriage , whereby it was provided , that his father should be interdicted to certain persons then dead , january . . silvertoun-hill supplicant ; but being past of course against an appearand heir , it was found valid , because he was entered before the debate thereupon , july . . kirkwood contra belshes . it was refused upon the warrandice of a discharge from the dischargers fact and deed only , unless the supplicant show a particular hazard , february . . patrick forbes contra william dick. the effect of inhibitions reacheth only deeds done by the persons inhibite after the inhibition , and doth not reach any deeds done thereafter by his heirs and successors ; but these must be of new inhibite , hope , inhibition , john pirycon . secondly , it hath no effect against moveables , albeit growing upon the ground the time of the execution of the inhibition , though the style thereof bear not to dilapidat lunds , heretages , goods or geir , march . . laird of braico contra ogilvie . hope , inhibition , aikin contra anderson ; yet it will reduce a moveable bond , in so far as it is the ground of an appryzing , but prejudice of personal execution , or against moveables , july . . dowglas contra johnstoun . but it may proceed upon a moveable bond , ibid. july . . porteous contra elliot , where reduction was sustained , to the effect , appryzing may proceed upon the moveable bond , though no appryzing or other real right had then followed upon the said bond. inhibition is only effectual against posterior voluntary rights , granted by the person inhibite , but not against appryzings , adjudications and infeftments thereupon , though posterior to the inhibition , if they procced upon a debt prior to the inhibition ; yea though the date of a disposition was prior to the inhibition , yet the same being granted to the purchaser for himself , and to the behove of others ; that clause being filled up with another hand , was presumed to be filled up after the inhibition , unless the contrary were proven , to have been filled up before the inhibition by witnesses , above exception , jan. . . lady lucia hamiltoun contra the creditors of monkcastle . neither will it be effectual against an infeftment after the inhibition , proceeding upon a disposition prior thereto , or upon an obliegement to grant such an insestment , being prior to the inhibition , hope , inhibition , patrick stirling contra tennents of lethendy : here the posterior infeftment was of the property ; and the prior obliegement was to grant an annualrent , which was to exceed the value of the property : but where the prior debt bore an obliegement to infeft in an annualrent generally out of the debitors lands , the disposition of the property was reduced as posterior , though upon a debt prior , jan. . . scot contra turnbul . and an inhibition was found not effectual against a postenor infeftment , though it proceeded upon a prior bond , meerly personal , and bore no obliegement to infeft , hope , inhibition , laird of tillibairn contra laird of clunic . inhibition was not found effectual against dispositions posterior , proceeding upon bonds prior , bearing obliegements to infeft generally or particularly , july . . sir george gordoun con . seaton , feb. . ross con . william dick. but inhibitions extend not to posterior renunciations of wodsets , which are deeds necessary upon payment , though the style of the inhibition bore , renunciation , july . . mr. john elleis con . keith , whereby creditors were much prejudged ; for remeid whereof , the lords by act of sederunt , of the . of feb. . did declare , that creditors using 〈◊〉 against their debitors infeft in wodset , or annualrent , if they shall make intintation by instrument of a nottar , to the persons who have right to the reversions of the saids wodsetts or annualrents , that the wodsetter or annualrenter stands inhibit at their instance , and shall produce in presence of the party and nottar , the inhibition duly registrate , that they will not sustain renunciations or grants of redemption , although upon true payment , not being made bona fide ; but after intimation , as aforesaid , unless the redemption proceed by process , whereunto the user of the inhibition must be called . inhibitions must be execute by messengers ( as the style thereof bears ) against the person inhibite , personally or at his dwelling-place , and against the leiges , at the mercat-cross of the head-burgh of the shire where the person inhibite dwells , par. . cap. . and therefore , an inhibition was found null , because the executions bore not a copie given to the partie inhibite , albeit it bore , a copie affixed upon the cross ; though the executions were mended by the messenger upon the margent , bearing a coppie given , not being so registrate , albeit it was offered to be proven by the witnesses infert , that a copie was trulie given , july . . sir john keith contra sir george johnstoun ; and the inhibition with the executions , must within fourty days after the execution thereof , be registrat in the register of hornings , where the inhibite resides , or where the most part of his lands lyes , act aforesaid ; but if the inhibite person dwell within stewartry , or bailiery of royalty or regality , the inhibition must be execute at the mercat cross thereof , and registrate in the clerks books there : otherways in any of these cases , if the saids acts be omitted , the inhibition is null , par. . cap. . by the act . pa. . registration of inhibitions , hornings and relaxations , are ordained , to be either judiciallie , or before a nottar and four witnesses , beside the ordinarie clerk , and in case registration be refused , the same may be made in the books of the next sheriff or bailie , or books of council . but by the . act , pa. . the foresaid act is rescinded , and the registration in the sheriff or bailies books , or by the clerk-register , or his deputs , in the books of council , are declared sufficient . an inhibition was found null by exception , because the letters bore only warrand to charge the person at the mercat-cross , as out of the countrie ; and the execution was against the party inhibite personally , jan. . . erskin contra erskin , and reduced upon the same ground ; because the execution against the person inhibite , was at his dwelling-house , and the warrand was to have been at the mercat-cross ; albeit it bore , to inhibite at the mercat-cross of edinburgh , and pear and shoar of leith , and all other places needful , march . . james lamb contra blackburn ; in which cases , it was found null , unless truly execute , both against the lieges and against the party , and that the execution at the cross served not both , hope inhibition , sym contra coldingknows . hope inhibition , lamb contra blackburn ; and also found null , because not execute at the head-burgh of the regality , where the person inhibite dwelt , but of the shyre ; and that not only as to lands within the regality , but other lands within the shyre , jan. . . stirling contra panter ; and found null , because not registrat in the shyre or regality where the lands lay , though registrat in the shyre where the inhibite dwelt , ja. . . halyburtoun contra monteith ; but sustained , though execute at the cross , where the inhibite dwelt ; & execute a year thereafter at the cross where the lands lay , and registrate in both ; although in the last , there was no execution against the party inhibite , but only against the leiges , spots . inhibition , heirs of the laird of fairnie contra laird of aitoun . seing the effect of inhibition is only for satisfying the ground , whereupon it proceeded ; therefore inhibition raised upon a bond , not to sell a reversion without consent of the wodsetter , was found not to reduce a posterior assignation to the reversion simply , but only so far as the wodsetter was interessed or prejudged , hope , inhibition , turnbul contra scot. inhibition doth not only extend to the lands that the inhibited persons had then in the jurisdiction where it is published , but to these acquired after , it being a personal prohibition , december . . mr. john elleis contra keith . february . . inter eosdem . inhibition extends not to lands be falling to the person inhibit in other jurisdictions , july . . william swintoun contra inhibition is effectual to reduce rights posterior to the date thereof , by the executions of publication , albeit before the registration of the inhibition , the rights in question were granted , july . . sir george gordoun contra seatoun . an inhibition was found null , because the execution bore not publick reading , and three oyesses at the mercat cross , which was not admitted to be supplied by probation of the witnesses , july . . stevinson contra james innes . but where the executions bore , that the messenger made lawful publication , and reading of the letters ; the lords upon inspection of the registers , finding that this last style was frequent ; whereas in the former case , the executions bore only generally , that the messenger lawfully inhibite without oyes or reading the letters , and that there was no such stile of executions ; therefore the lords admitted the witnesses insert in the executions of this last inhibition , to prove that the three oyesses were truly made immediatly before reading of the letters , june . . innes contra trotter . and executions of inhibition at the mercat cross , are declared null , if there were not a coppy left affixed upon the cross , december . . iohn inglis contra haddoway . in this case an inhibition was not found null , because the executions bore , to be at the dwelling-house , without designing the same ; the defender designing the dwelling-house , and byding by the same as the true dwelling-house , december . . inter eosdem . the like , where the designation in the body of the inhibition was merchant burgess of edinburgh , which was presumed his residence , unless the contrary were proven , july . . quintine findlay contra little of libertoun . title xiv . superiority where , of its casualities , non-entry , relief , compositions for entries , ward , marriage and liferent escheat . . the superiours dominium directum . . how property is established in the king. . superiours may exerce all acts of property , except against their vassals . . how the properly coming in the person of the superiour , is established . . superiours cannot interpose betwixt them and their vassals . . how far superiours need to instruct their title ? . superiours have personal action against intromettors with the rent of the land , for their reddendo . they have also real action for the same , by painding of the ground . . jurisdiction of superiours . . superiority carrieth to heirs and singular successor , all bygone casualities not separat by gifts or decreets . . superiours of kirk-lands need not instruct a consent to the surrender . . superiours must receive appryzers or adjudgers , or pay the debt . salvo juresuo . . he must receive the kings donatar upon presentation gratis . . he must receive his subvassal , whom his immediat vassal refused to enter . . how far superiours may extend gifts of their own ward against their vassals . . superiours need not accept resignation or confirmation , and if they do , it is salvo jure suo . . superiority falling to more persons the eldest heir or greatest interest only receives the vassals . . non-entry falls when inseftment is not renewed by every vassals heir or singular successor or upon resignation . . non-entry falls by reduction or nullity of infeftments , or retours . . burgage falls not in non-entrie , as to the burgh or particular persons . . the effect of the general declarator of non-entry . . the effect of non-entrie , after citation in the general declarator . . exceptions against non-entry , as to the feu-dutie or retoured mail . . exceptions against non-entrie , as to the full rent . . whether non-entrie after ward , requires declarator . . the original of relief . . the custom of england and france , as to relief . . the quantitie of relief with us . . whether relief be due during non-entrie . . whether relief is due when the heir is entered , whether the fee be burdened with conjunct-fee , or liferent . . relief stops not the heirs seasine . . compositions for the entrie of appryzers or adjudgers . . the original of ward . . the effect of ward as to the heirs person . . the effect of ward as to the fee. . the restrictions of ward . . the value of the marriage of heirs of ward-vassals . . the true interest of superiours in the marriage of their vassals . . the single value of marriage , not penal but favourable . . double value penal and unfavourable , with the exceptions against it . . single value found due where the heir was married before his predecessor died by precipitation . . the quantity of the single value in heirs male or female . . marriage is debitum fundi . . it belongs to the eldest superiour . . the royal prerogative prefers the king to all others , as to the marriage , of the vassal . . marriage is due by the heirs of appryzers . . exceptions against the value of marriage . . the rise of liferent-escheat . . it extends to all kinds of liferents . . liferents of fees not having infeftment , or not owing fidelity to a subject , belong to the king. . liferent escheat of sub-vassals , to whom they belong . . liferent escheat is not excluded by voluntary infeftments , after denunciation , not being for implement of a special obliegement , to infeft before denunciation . . liferent escheat is excluded by appryzing for debts , anterior to the rebellion , there being infeftments , or charge , in cursu rebellionis . . liferent esche it extends not to burgage or mortification . . but extends to ministers stipends . . liferent escheat is made effectual by declarator . having now shown what is the interest of the vassal in the fee , it will be the more easie to find out what the superiours right of the superiority retaineth ; for what is proper to the fee , and is not disponed to the vassal , is reserved to the superiour , and it is either constitute as belonging to the superiour constantly , or casually . . the constant right of the superiour standeth mainly in these particulars ; first , superiority it self is dominium directum , as the tenentry is but dominium utile ( as before is shown ) and therefore , the superiour must be infeft , as well as the vassal , and that in the lands and tenement it self , without mention of the superiority which followeth , but upon the concession of the fee in tenentry , though sometimes through the ignorance of writers , infeftments bear expresly to be of the superiority . . only the soveraign authority , as the common fountain of all rights of the ground , needs no infeftment , but hath his right founded in jure communi , and is not feudal but allodial ; and when the right of lands fall to the king , by the casuality of his superiority , as forefaulture , recognition , bastardry or last heir , if the lands be holden immediatly of the king , they are ipso facto , consolidat with the superiority , and the declarators required thereanent , do not constitute , but declare the kings right , without prejudice of what is consumed , bona fide : but where they are not holden immediatly of the king , the right thereof is perfected by gift and presentation , whereby the immediat superiour is oblieged to receive the donatar by infeftment , like to that of his former vassal ; yet the kings right by the casuality , though it be not perfected , is real and effectual against all singular successours , whereby deeds of treason and recognition , being in facts ordinarly proven by witnesses : purchasers cannot be secured by any register ; and therefore , must secure themselves by the kings confirmation , & novo damus . but where the king succeeds in any fee to a subject , as to property or superiority , before he can alienat the same , he must be served heir in special thereunto ; so king charles the first was served heir to queen ann his mother in the lordship of dumfermling , in which king james infeft her in fee , to her and her heirs , by a morning-gift , the first day after his marriage with her ; and king charles the second was served heir to charles duke of lennox in the earldom of lennox : in which service , the chancellour and fourteen of the lords of session , were the inquest , the youngest lord being left out , because there could be no more but fifteen : but the king needs no infeftment upon such retours ; but if he acquire any lands holden immediatly of himself , the instrument of resignation must be registrat ; and if holden of a subject , there ariseth no real right to a donatar till he be infeft upon the kings presentation , and his seasine registrat ; by both which , the certainty of land-rights is preserved . . secondly , superiority carrieth a right to all actions following the land , against any other then the vassal ; for seing superiours are infeft in the lands , they can only be repelled from such actions , by the rights granted to their vassals , but by no others , and so may remove possessors , who can show no right ; this was found , though the superiours infeftment , bore him only to be infeft in the superiority of the lands , november . . lag contra his tennents . . if a superiour become fiar by succession , or acquisition , for establishing the property in his person , he may either be infeft upon his own precept or the kings , november . . daughters of mr. robert mortoun . . but a superiour cannot interpose betwixt himself and his vassals , by infefting another in the lands to be holden of himself , such infeftment was found null by exception , january . . dowglas of kelhead contra vassals . superiours must receive and infeft their sub-vassals upon the refusal , or incapacity of the vassal , and may at any time after , receive the immediat vassal , or his successour ; or another , if the immediat vassals right be extinct , or acquired by the superiour , which is no unwarrantable interposition , which is repelled as contrary to the nature of the feudal contract and right , it being inconsistent that the superiour should both give his superiority to another , and claim it himself , dans & retinens nihil dat ; and if that were allowed , interposed vassals might be infinitely multiplied , november . . earl of argyle contra mcleod ; in which case , the late marquess of argyle being forefault , mcleod who was argyles vassal , was retoured and infeft in the lands , as holden immediatly of the king , which did not hinder the king to interpose this earl of argile as donatar to his fathers forefaulture , seing the king had done no deed to accept mcleod as his immediat vassal ; but that he was infeft by precepts out of the chanclery , passing of course . . superiours nor their donatars need not instruct the superiours right ; but the vassal must acknowledge it , or disclaim him upon his peril , so it was found in the casuality of marriage , february . . arbuthnet contra keiths , which will not hold , if the right of superiority be newly acquired , and no infeftment given to the vassal , or his predecessors by vertue thereof . the superiours infeftment gives him interest to pursue reductions and improbations , against all parties , even against his own vassals , who will be forced to produce their rights , under the certification , to be declared null ; or false and feigned , though , when they are produced , they may defend them . . superiority carrieth a right to the service and duty contained in the vassals reddendo , and that not only personally against the vassal , upon any personal obligation , or contract in write ; but also by vertue of intromission , in meddling with the fruits and profits of the land , for all such intromettors may be pursued , and distressed personally for the duties contained in the reddendo , which being granted to masters of the ground , for their tack duty against tennents , and all intromettors with the rents , is much more competent to the superiour , for his feu-duty or other service in kind ; how far this will be extended to blensh-duty , hath been shown in the former title . and as to services which are annual , as winning and leading of peats , &c. these are not due , if they be not required yearly in due time , whether they be due by vassals to the superiour , or tennents to their master . january penult . . carnowsie contra keith . so service of harrage and carriage in a feu-duty , was found not due , but when demanded within the year , june . . mr. david watson contra mr. james elleis . . but also the superiority carrieth the right to the duty of the reddendo , really against the ground of the fee , for which he hath action of poinding of the ground , against the vassal and all singular successors to him , whereby he may appryze the goods upon the ground , or the ground-right and property of the lands , the saids duties being liquidat , upon repayment whereof , the lands are redeemable as in other appryzings . . superiority carrieth the right of jurisdiction over the vassals lands and inhabitants thereof , if the same be granted to the superiour in his own infeftment , either implicitely as being a barrony , lordship or earldom , or expresly , having the power of courts and their issues ; and though the superiour grant the same to the vassal , yet that is not exclusive of his own right , but cumulative therewith ; how far superiority carrieth the right of thirlage of the vassals lands to their superiours milns , when the vassals have not granted to them the priviledge of milns and multars , will appear amongst servitudes , of which hereafter . . superiority carries all the casualities thereof , requiring declarator to heirs and singular successors , hoc ipso , that they have the superiority established in their person , and do not fall to the executors of the superiour , as to bygones , before his death , unless gifted or liquidat by sentence , march . . dowglas contra captain crawford . february . . cunninghame contra stuart . july . . robert fa contra lord balmerino and laird of pourie . but feu-duties , or any casuality may be separat from the superiority , by sentence or assignation ; and therefore , a disposition of the superiority , was found to imply an assignation to the feu-duties bygone , which being to the vassal himself , needed no intimation , and was valid against a singular successor infeft in the lands in superiority , december . . earl of argile contra lord mcdonald . . a superiour of kirk-lands pursuing his vassal for his reddendo , was not excluded till he instructed that he consented to the surrender , conform to the act of parliament . annexing the superiority of kirk-lands to the crown , reserving the feu-duties to the lords of erection , who consented to the surrender , which was presumed in possessorio , june . . mr. david watson contra mr. james elleis . . superiours are oblieged to receive appryzers or adjudgers for a years duty , albeit the superiour alledge a better right then the appryzer ; but the infeftment to bear , salvo jure cujuslibet & suo , july . . george shein contra james chrystie . yet a superiour having received an appryzer , was not found excluded from any right to the property , though he made no reservation thereof , seing his receiving was necessary , july . . hospital of glasgow contra robert campbel . but a superiour being charged to receive an adjudger , was found to have his option , either to receive him for a years rent , or to pay the sum adjudged , for getting assignation to the adjudication , being redeemable by the vassal from the superiour , and without any years entry to be payed at redemption , seing the vassal was not changed , as is provided , par. . cap. . june . . sir francis scot of thirlestain contra lord drumlanerk . . and a superiour is also oblieged to receive a donatar upon the kings presentation , gratis , without present payment of the non-entry duties , till declarator , and if he refuse , he loses his superiority during his life , june . . laird of blair contra lord montgomerie . . a superiour must also receive his sub-vassal , whom his immediat vassal refused to enter without further instructing of the vassals right , but by receipt of the feu-duty , by him as superiour , wherein the mediat superiour supplet vicem , of the immediat salvo jure , june . . menzies contra laird of 〈◊〉 . yet a superiour cannot exclude an appryzer or adjudger within the legal , from the rent of the 〈◊〉 , till he pay a years rent , december . . mr. hendry hay contra earlstoun . . and if a superiour or any to his behove , take the gift of his own ward , he was found to have no interest to extend it further against his vissal , infeft with absolute warrandice , then to a proportional part of the composition and expenses , february . . boyd of penkil cintra tennents of carslooth . the like , where the ward had fallen after the vassals right ; for , if it had fallen before , he could have nothing , december . . lord lindsay contra bargallon . . superiours are not oblieged to receive upon resignation , or by confirmation , and having accepted resignation , it did not exclude the marriage of the resigners heir , there being no infeftment upon the resignation before the resigners death , november . . sir william purves contra strachan of kinadie . . superiority falling to more persons , doth not obliege the vassal to take infeftment of them all , but if heirs portioners , of the eldest , july . . lady lus contra inglis . and by the same reason , if the superiority fall to many singular successors , by appryzing or otherways , the vassal needs only take infeftment of the greatest interest . . the first and most common casuality of superiority is non-entry , whereby the fee being void , and no infeftment renewed thereof , through the vassals neglect , being capable of entry thereto , the profits thereof belong to the superiour . by the common feudal customs there was not only an investiture requisite at the constitution of the fee , but it behoved to be renewed , either at the change of the vassal , or at the change of the superiour , guidilinus , de jure nov . pars . cap. . zoesius , de feudis , cap. . but our custom requires no infeftment at the change of the superiour , but only at the change of the vassal ; for we require no oaths of fidelity , but fidelity it self is imported due without an oath : but elsewhere that oath is required , and being personal , it ought to be renewed , both at the change of the vassal and of the superiour : but with us there being no fee without infeftment , nulla sasina , nusla terra ; therefore , the vassal must have the infeftment renewed . the renovation of infeftment to heirs in france and england is not requisite , but 〈◊〉 sasit 〈◊〉 , as they express it , by which a special retour perfecteth the heirs right in his fee , with a great deal of ease , which is not consonant to the common feudal customes , whereby , if the vassal within year and day after his predecessors death , require not to be entered by his superiour , and offer his fidelity , he forefaults his fee , l. . feudorum tit . . which severity we use not , for the vassal loseth not his fee by non-entry , nor the whole fruits of it during that time : but our custome is such , if by any means the fee be void , the vassals right ceaseth during that time , and the fee is in the hands of the superiour ; and therefore , in retours to that article of the brieve ; it is answered , that the lands are in the hands of such a man , superiour : and though the infeftment of the predecessor against others then the superiour , be sufficient to maintain the right and possession of the vassal ; as to his superiour it hath no effect at all , after special declarator , till the vassal enter . the fee may be thus void , first by the minority of the heir , whereby he cannot enter by reason of ward , but this is exprest by the name of ward and non-entry , though it may signifie the fees , being void , whether necessarly or voluntarly ; yet it is appropriat to the latter , and contra distinguished to ward . the fee becomes void by the voluntary outlying of the vassals heir , or by the vassals resignation in the hands of his superiour , for new infeftment to be given to himself , or to any other ; for till that infeftment be taken , the fee is also in non-entry ; for in that case , the resignation putteth the fee in the superiours hand , upon whom there is an obliegement to renew the infeftment , to the person in whose favours the resignation was granted , upon which he may be compelled by a personal action so to do , and which is carried to that persons heir , by a general service as other personal heretable rights , or dispositions . . or by the reduction or nullity of the infeftment , or retour of any person formerly infeft , which is more rigorous then the rest , seing the vassal had thereby a colourable title , and was bonae fidei possessor , seing reductions use not to be drawn back , adpraeterita : so reduction of retours was sustained at the superiours instance , to give him the benefit of non-entry , july . . lord cathcart contra laird of kerse . februany last , . earl of nithisdail contra westraw , and therefore , it must be considered , what the nature of the right will import . if non-entry had its rise from ingratitude or a penalty with us , by the negligence of the vassal , it could hardly take place in this case ; for unless such infeftments had proceeded upon the fraud , or gross ignorance of the vassal himself , it could not be called voluntary non-entry , which stood upon some informality , unknown to the vassal , or his predecessor : but seing the ground of this non-entry is from the nature of the right , which cannot consist without infeftment ; therefore , by such nullity it must follow , that while there was no infeftment , or a null infeftment , the vassal had no interest , neither will there be hazard of rigour ; because , it can but extend to the retoured duties , and is eleided by all the ways that other non-entries are , and specially by the superiours homologation of the infeftment , if the nullity were in prejudice of the superiour , as when lands are retoured to less retour mail then the due ; or feu-duties , or other duties in the reddenda , are diminished ; for it is not rare , that that which is null , as to some persons and cases , may be valid as to others from these nullities being injuries to the superiour ; non-entry wil follow , if there be no valid seasine ; then non-entry will take place , though charter and precept be granted voluntarly , seing seasine was not taken thereupon . . non-entry taketh place whenever the fee is void , whether it be holden ward , blanch , or feu : but that which is holden in burgage , or is mortified , requireth no renovation of the infeftment , because societies and incorporations die not , which is extended to the particular tenements within burgh , holden burgage , which are thereby holden of the king , and the magistrates of the burgh , give the infeftment as his bailies . . the effect of non-entry is attained by a declarator of non-entry , the style whereof beareth , that the tenement is void by the death of such a person , who died last infeft , and ought to be so declared , and that the fruits and profits thereof do belong to the superiour , by reason of non-entry : yet because the case of the vassal is favourable , decreet is only granted , declaring the non-entry , and finding only the feu-duties due in lands holding feu , july . . . earl of kinghorn contra george strang : or the retoured males in lands holding ward or blansh , which have any such retour : or otherways , the whole duties of the fee are carried , the reason hereof is , because feues are locations , and the feu-duty is the rent or pension ; and therefore , in favorabilibus , that is interpret to be the rent : so likewise in other lands , the retour was a valuation of the lands , as they were worth and payed at that time ; the first whereof was called the old extent , and it is exprest by merk-lands , or pound-lands . the other is the new retour , which though it be different in divers shires ; yet being once a rent , in this favourable case , the general declarator reacheth no further ; yea , though there be no retour of the particular parcel of land in question ; yet if there be a retour of the tenement or barrony , whereof it is a part , that common retour will be divided according to the present rent , and a proportion thereof stated upon this parcel , as its retour , as was found in the former case , earl of kinghorn contra strang. the like , feb. . . mark ker con . scot of hartwoodmires . hence it is , that an annualrent , because it hath no retour distinct , but it retoured , quod valetseipsum ; therefore , if it be in non-entry , it is carried by the general declarator , and the non-entry was found to carry the whole profite of the annualrent by exception , in a poinding of the ground without any declarator , march . . somervel con . somervel of drum : yea , though the annualrent be due by the superiours consent , yet it falls in non-entry , though it be due still personally by the personal obliegement ; where there is any . in this declarator , the superiour producing his infeftment , needs not instruct the defender , his vassal ; and though the lands in question be not expresly in the superiours infeftment , but claimed by him as part and pertinent , he needs not instruct the same to be so , unless the vassal disclaim him as superiour in that part , spots . non-entry , lord yester con . his vassals : neither needs he instruct that the lands were void , since the time libelled , because that is a negative and proves it self , unless the vassal instruct that it was full . the 〈◊〉 of general declarator is not personal against the vassal , to pay the 〈◊〉 mails , &c. but is real against the ground of the tenement , for granting letters to poynd and apprise , and so the calling of an appearand heir is sufficient , spots . escheat , balmiranoch contra his vassals . but if the appearand heir be not called , but a person notourly known to have no relation , it is a relevant defence , competent to any party called , though deriving no right from that defunct , nicol. non-entry sir mungo murruy . . and though craig insinuateth , that the action is real , and the ground may be poynded for the whole duties , yet posterior decisions have upon good grounds cleared , that as to these , the superior is but as the master of the ground , and as he is in the case of ward , and therefore the ground cannot be poynded . neither is any lyable but the intrometters with the fruits , spots . non-entry , gray contra murray . without this declarator of non-entry , the superior or his donatar cannot enter in possession of this voyd fie , and though he possess , he is comptable to the vassal for the mails and duties , hope , nonentry , john brown contra mcculloch of barholme , febr. . . thomas ogilvy contra murray of halmyro . but after declarator of non-entry is obtained , the superior may enter in possession , any lawful way he pleaseth , and may dispose of the fruits and profites of the tenements , by himself or his donatar , and as the proprietar might out-put and in-put tenents therein , and hath the full profites and duties thereof , which may be pursued as other ordinary actions , though it useth to to be pursued under the name of special declarator , which takes effect from the date of the summonds , whereupon the general declarator proceeded ; because the decreet of general declarator , is only for the by-gone mails as aforesaid , and therefore reacheth not after the date of the summonds , after which the whole mails and duties are due , not only in ward holdings and blench , but also in fews . as it was found , that before general declarator , the few-duty was only due , so that after general declarator , the whole profites , july . . earl of kinghorn contra george strang , julie . . mr. john harper contra his vassals , julie . . robert fa contra lord balmiranoch , and laird of powrie . . non-entry is excluded , first by the entry of the vassal and his infeftment , during the time thereof , even though the same was granted by him who was superior , after his predecessor was denuded four ages before , which must be in respect , the new superiors right was not known , as neither being registrat , nor any intimation nor action thereupon , hope , non-entry john arthur contra laird of blebo . and if the vasal be infeft upon a charter from his predecessors , to be holden of the superior , if the superior confirm it , the infeftment is valid , and excludes the non-entry from the date thereof and not from the date of the confirmation , being simple , hope non-entry , bartoun and harvie contra laird of delspro . . nonentry is excluded by feus , terces of reliques , liferents of husbands surviving their wives , by the courtesie of scotland . these are effectual by law , and are introduced without the superiors consent . it is excluded also by his express consent , by liferents or conjunct infeftments holden of him , though the vassal may enter to the fee , yet the liferent excludes the profites ; and therefore , during the simple liferent , the superior cannot obtain declarator of non-entry . . by the superiors con ent , it is also excluded by precepts of clare constat , which acknowledge the person who died last , vest and seased as of fie , during whose time the non-entry cannot be claimed . and likewise , by receiving the vassal with a novo damus , renouncing expresly non-entry , if it was granted by the superior , before the right was transmitted from him to the donatar . it is excluded by the superiors tacite , or presumed consent , by granting subsequent infeftments , for the space of . years , , march . . earl of angus and dowglas contra earl of annandale , june . . sir mungo murray contra laird of inchmartine , hope , non-entry , john art●●r contra laird of blebo : for thereby it is presumed that the non-entry is relinquished , not being claimed nor reserved all that time ; which craig observes to have been found upon infeftments , continued by the space of . years , but the best term , as being ordinary and known in law , is . years ; and this is not by reason of prescription , which would only cut off profites of non-entry preceeding the . years , but this would take it away , during and after the . years . the like is very rationally observed by craig , to be inferred by three subsequent seasines , having the same presumption as three subsequent discharges have to infer exoneration of all bygones ; but these must be of three subsequent heirs , and not by receiving three singular successors , the non-entry returning to the vassal or his heirs , they cannot make use of it against the subvassals , especially if they be lyable to warrant the subvassals as to non-entry or by absolute warrandice generally , for thereby the right to the non-entry is , jus superveniens authori accrescens successori ; but the subvassals must pay their proportion of expenses for the gift . but non-entry is not excluded , because it was gifted to the appearand heir of a superior of a subvassal : which superior was obliedged in warrandice to his subvassal , seing he was not heir , spots . nonentry . the like though the appearand heir consented to the subvassal before the gift , laird of craichlaw contra gordown of barnernie , and mackie . neither is it excluded by any base infeftment , not being feu , though confirmed by the superior , if it hold not of the superior for such confirmations , import only a passing from recognition . as is shown in the last title , concerning confirmations . but fews exclude non-entry , while they were allowed by the acts of parliament , as there is also shown , neither is it excluded by tacts set by the vassal , which though they stand as real rights against purchasers by statute , yet have no effect against superiors in prejudice of their proper casualities : neither is it elided by charters or precepts granted by the superior , though containing warrandice , till infeftment thereupon , march . . john hay contra laird of achnames . neither was it excluded by apprysing and charge thereupon , without offer of a years rent of the land , or annualrent of the money , feb. . . hendry keir contra hendryson . neither is it excluded , because the vassal was not in mora , being hindred by a question of bastardry against him , spots . non-entry , 〈…〉 contra naiper of wrightshouses . nor doth the vassals minority stop non-entry of lands not being ward , nor restore the minor as lesed . for as hath been now shown , it is not the negligence of the vassal , but the nature of the right that infers non-entry : yet there is no doubt if it be by the superiors fault , it will be a personal exclusion against him , non-entry is most favourable , when extended as to the retoured duties . but as to the full rents it is capable of many other exceptions , and doth not alwayes run from the citation in the general declarator , as if a superior raise his declarator , and also reduction of the vassals seasine , though he reduce the seasine , he will not have the full rents till the decreet of reduction and declarator , novemb. . earl of argyle contra laird of macleud : yea if the superior do not insist , but only use citation , which may be at the vassals dwelling house , and never come to knowledge ; or the vassal being a pupil without any tutor , it is not like the lords would sustain the whole duties from the citation , but from the time the vassal becomes contumacious . and queensberry having interposed kelhead , betwixt him and his vassals , who thereupon pursued declarator of non-entry , though the infeftment was found null , yet the disposition was found to carry a gift to the casualities of the superiority , and the vassals were only found lyable for the rent after the interloquitor , sustaining the disposition as a gift of non-entry , and where a tailzie was found to exclude a second branch , so long as there was hope of a former branch , the lands were found in non-entry , as to the retoured mail , but not as to the full rent , seing the heir did not forbear to enter through wilfulness , but of necessity , julie . . lord melvil and david melvil his son , contra sir william bruce . and where a singular successor to the superior pursued non-entry , it was not sustained till he produced his progress from the acknowledged superior . the full duties were not found due from the citation , julie . . earl of queensberry contra irwin of cove . and craig relates , that where the defunct died in battle , for his superior , non-entry should have no place . we shall not here speak of common exceptions which extinguish all rights as prescription , homologation , or the priviledge of these who are absent , reipublicae causa . as to the question , whether non-entry subsequent to ward , whereby the superior or his donatar , is in possession requireth any declarator . craig and skeen upon the word non-entry , are for the negative ; and since had. and durie observe , march . . lesly contra pitcaple , that the lords found , that where the superior pursued both for the ward , and subsequent non-entry , that he or his donatars , not being in possession by the ward , behoved to declare the non-entry , which would only carry the retoured mails till declarator . the next casuality of the superiority is , the releef due by the vassal to his superior for his entering him in the fie , as the lawfull successor of the vassal . and though relees be only considerable in ward-holdings , and uses to be subjoyned to ward ; yet all fies which require renovation , are lyable to releef ; and therefore releef is here immediatly subjoyned to non-entry . . releef is generally treated upon by the fewdists . the original whereof cujace ascribeth to the constitution of the emperor leo , extant in the novels , bearing it to be the custom of several places , that the superior should have that years rent , in which he receives a new vassal in his clientel , which therefore , by most of the feudal customs , is extended to the singular successors of the vassal , who in some places , pay for their entry the fifth of the price of the fie , and a fifth of that fifth ; whereby , if the price were . crowns , the composition for the entry would be . crowns . . but by the customs of england and france , the heir of the vassal , if he be minor , payes no releef , but he and his fie are in the hands of the superior , as in ward or custody , whereby the superior hath the whole profites , more then is fit for the education and intertainment of the minor valsal , which ceaseth with his majority , and there is no releef due . but if the vassals heir at his death , be major , his fie is lyable to his superior for releef ; which distinction is mentioned in the english magna charta , the quantity of the releef by heirs in england , is in ward-holdings or military fies . pounds sterling for an earldome , . merks for a baronry , and . shillings for any other military fie , which is oblieged to maintain one souldier . and if the fie be less , and lyable only for a share of the entertainment of a souldier it is lyable proportionally . relief , by the custom of france , is for a barrony , . franks , and for any other military fie , . but if it answer not to the entertainment of one souldier , it payes for every aiker , . deniers ; but if it be not a military fie , but that which the english calls sockage , the reddendo whereof is not military service , but some other payment or performance , which is doubled the first year after the death of the vassal , the one half thereof is , the releef which is a real burden , for which the superior may poynd or distrenzie all goods upon the ground . but as to singular successors , the most ancient feudal customs , making them only to descend to the issue of the first vassal whose collaterals had no right , but were like our kindly tenents , by the propinquity of blood : yet by the favour of the superior , they were oftimes admitted in the lie , and were only lyable for relief . if the superior did receive a stranger upon the resignation of his vassal , he was to pay a relief , which in some places was the fiftieth part of the price . and by the custom of france , it is the thirteenth part . from the original of relief , the reason of its name may be conjectured ; and these who appropriat it to ward-holdings interpret it to be called relief , from redeeming or relieving the fie out of the hands of the superior . but relief being a general feudal name , and many nations not allowing the superior the whole profites of the fie , in the minority of the heir , and giving a relief in the case of singular successors ; that derivation must be too narrow . and it seems most quadrant to the common feudal customs , that relief should import a subsidie or aid to the superior . we have the more largely considered the rise and customs of nations concerning relief , because though it frequently occurs with us , yet it hath been alwise kindly transacted betwixt the superior and vassal . and there is scarce a contraversie or decision , observed about it by any since the institution of the colledge of justice , so that we must rest in the common custom used betwixt superior and vassal , the nature of this casuality , and the opinions of some few of our lawyers who have written upon it ; craig , lib. i. dieges . handles the matter of relief , and sayeth , by our ancient custom , there was no relief due after ward . and that it was the common opinion of lawyers at that time , that relief had only place in ward-holdings ; and that it imported a years rent of the fie , being the full profites thereof , when the superior or his donatar were in possession by the ward . but in other cases , only a years rent , by the favourable accompt , that is one years new retoured duty of the fie , as it is retoured by it self , or the share of the retour of any barrony or tenement whereof it is a part . but craig , with good reasoa holds relief to be due at the renovation of every fie , to the heirs of the investiture , for the duplication of the feu-dutie in feus , is due at the entry of every heir . and that without an express clause in the reddendo , by the feudal custom , which is generally acknowledged . and even when the duplication is exprest , it doth ordinarly bear , secundam consuetudinent feudorum : and sir thomas hope , in his title of ward , is of the same opinion , in respect that the precepts issued out of the chanclery , for infefting of heirs , even in feues , or blensh-holdings , it bears , capiendo securitatem , for the double of the feu , or blensh-duty . . and as to the quantity of the relief , hope in that title , holdeth it only to be the retoured dutie , without exception when the vassal or his donatar was in possession . and sir john skeen in his title , de verborum significatione , asserteth the same . it is also provided by act of parliament , . that the full avail of the relief be taken and counted for in exchequer , by sheriffs , stewarts and bailies , without accepting any composition ; and that charges be directed against persons who have gotten precepts of seasine , or the sheriffs or their deputs , or both , to poind for the sums contained in the book of responde ; which is a book of record in the chanclery , drawn off the precepts of seasine to all heirs , and mentioning such a sheriff or bailie where the 〈◊〉 , respondere : that is , to count in exchequer for the sums , which by the precepts of seasine direct to him , he is ordered to take security for which sums would be liquid , and known according to the new retour , and the feu or blensh-duty ; but could not be known otherways , then by a process of liquidation , proving the full yearly rent of the fee , as to which the sheriff might not compone or transact ; and it is generally acknowledged , that when the full rent becomes due , there is no real execution , by poinding of the ground ; but the superiour hath the full benefite of the fee , as when it is in ward ; and therefore , the relief which is debitum fundi , must only be the retour duty . conform to this statute it was found , that the relief might be recovered , either by real action of poinding of the ground , or personally against the vassal , who had taken his precept of seasme out of the chanclery , though he had not taken infeftment there upon , march . . laird of lauriestoun contra the sherif of mearns ; and therefore , though in craigs time , relief was only thought to affect the fee , and not the personal estate of the vassal , this statute clears the contrary . . relief is not due while the fee is in the non-entry ; seing then the rent belongs to the superiour , the favourable rent or retoured duty , while the fee is void through necessity and negligence ; and the full rent when by contempt or wilfulness , the vassals appearand heir being cited , doth not enter : but i have never heard of one retoured duty demanded for the non-entry , and another for the relief , or any relief required where a years non-entry was exacted : but if the vassals heir be entered after the next term from the defuncts death , the relief may at least be demanded for the other subsequent term. . if the fee be possest by a relict conjunctfiar , the vassals heir needs not enter during her life , for her conjunctfee doth exclude all casualities during her life : or if it be in possession of a husband by the courtesie of scotland ; yet these will not exclude the fair , to enter to the property burdened with these liferents , and it is oftimes necessary for him to secure his creditors ; in which case it is most favourable that the superiour should have a years retoured daty , as he would have gotten it after the conjunctfiars death ; and therefore , much more where the fee is wholly burdened with a liferent , by the constitution or consent of the superiour . . the capiendo securitatem will be in all precepts , notwithstanding these liferents , and it will not stop the seasine of the heir , till he pay the relief to the superiour , whether king or subject ; but security by sufficient caution must be received . . in place of the relief to the superiour by the vassals singular successor , we have a composition introduced by statute , . cap. . whereby superiours are oblieged to receive appryzers for a years rent of the lands appryzed : for before that statute , no superiour could be compelled to receive any other vassal , then the heir of the first vassal , provided by the investiture ; for though in dispositions , lands are ordinarly disponed to the purchaser , his heirs and assignays ; yet assignays use not to be repeated in the charters , and the meaning of that clause in dispositions , hath been several times interpret , that the disposition may be assigned or transferred : but infeftment being once taken , assignays have no farther interest ; and that clause doth not save recognition , when the ward-vassal infefts any other in the fee then his heir apparent , as was found in the case of the lady carnagie con . lord cranburn . and though a disposition have no mention of assignays ; yet before infeftment , while it remains personal , it is assignable , and a superiour who granted a disposition by a minute , was discerned to receive the assignay to the minute , though he was not in freindship with him , jan. . . ogilvie contra kinloch of bandoch . this statute was by custom extended to adjudications , being the same in effect , but different in form from appryzings ; for the design of the statute being to satisfie creditors by a judicial alienation of the debitors lands , ex paritate rationis ; it was extended against the debitors appearand heir , who being charged to enter heir , did not enter ; and therefore , lands were adjudged from him , to which he might have entered , either for his predecessors debt or his own ; whereupon the superiour is descerned to receive the creditor adjudger , whether for sums of money , or for implement of dispositions , and obliegements to infeft : but the custom allowed not a years rent to superiours for receiving adjudgers , till the years rent was also extended to adjudications by act of parliament , decem. . . the lords of session have always taken latitude in the modification of the years rent , especially if the sum appryzed or adjudged for be small , and the lands he great ; and they have allowed the appryzer or adjudger , his option during the legal , to take infeftment or not ; and yet not to be excluded from the rents of the lands , till he be satisfied , decem. . . mr. hendry hay contra laird of farlstoun , vide tit. . § . . but the appryzer runs that hazard , that if the debitor die before he be satisfied , if the land be holden ward , it will fall in ward , and relief by the debitors death , and in non-entry ; for there is no reason that the casualities of the superiority should neither fall by the appryzer nor by the debitor . there is not the like reason , that the liferent-escheat of the debitor should exclude the appryzer , if it fell after the appryzing and charge ; for the liferent-escheat falls to the superiour , with all the burdens which affected it by the vassal , even with the burden of his tacks ; and therefore , appryzing with a charge way be as effectual as these , july . . james rule con . laird of billie . the superiour can have only one years rent from all the appryzers or adjudgers . but now since appryzers and adjudgers within year and day , come in pari passu , where one needs only to be infeft or to charge ; there is less reason to give an easie modification of the years rent to the first appryzer or adjudger , insisting for infeftment then before ; because one infeftment serves for all , and he who advanceth the same , gets relief of the rest , before they have access to the rents . . the prime casulity of fees is ward , which is not competent to all superiours ; ward is only competent in fees holden in military service which have their denomination from this casuality , being therefore called ward-holdings , and that not by the tenor of the investiture , which seldom mentioneth ward , but by the nature of it ; for when the fee is holdeu for military service , or as the english better express by knight service , extending not only to following in war , but to council and assistance in peace , then when the vassal is unfit for such service , the fee is open and remaineth in the hands of the superiour , or his donatar ; and though this capacity might be in some sooner ; yet it is fixed in men to their majority , at twenty one years compleat ; and in women , till they become fourteen years compleat ; for then they are capable of husbands , who may do the service required in the fee , decem. . . and jan. . . lady kilbirnie contra the heirs of fairlie . what fees are holden ward we have cleared in the former title . it now remains , that we hold forth the effect of this casuality . . ward reacheth the custody of the person , and of his lands holden ward , it hath its denomination rather from the former ; for ward is as much as guard or custody : the superiour or his donatar is by the nature of this right , as a tutor to the vassals heir ; craig observeth , that he is preserable to all other tutors , except only the father of the heir , whose fee descends by the mother , or some other person ; and that he is oblieged as other tutors , to pursue the rights of the heir ; but the course of time having turned this right from its ancient institution , so that the superiour hath less enjoyment of service , but more of profite of the fee : there is the less regard to the pupils education , with or by the superiour , to the effect he might be fitted for his service ; and therefore , other tutors , not only for the administration of the pupilsmeans , but even for the custody and education of his person will be preferred ; though of old , the donatar of the ward was preferred to the tutor in custody of the pupils person , sinclar , june . . laird auchnames contra laird of elphinstoun ledingtoun . march . . and july . . weir contra lochart . yet later decisions have favoured tutors more , and preferred them , nicol. ubi pupuli educari , mr. james chalmers contra elizabeth howstoun lady gadgirth . neither have i ever observed , that superiours or their donatars were made lyable as tutors , for administration of their pupils affairs . . the main effect of ward then is , that thereby the superiour or his donatar have , during that time , the full fruits and profites of the fee , and may remove tennents , and do all other deeds that the proprietar might have done , and was accustomed to do as to continue the profites of a wood , if there be constant cutting , as being divided in so many hags , that the first is ready by the last be cut : or going heughs , as they were accustomed by the vassal ; but he cannor cut more then the accustomed yearly hags of wood , or put in more coalziers then the vassal had at his death , and ordinarly before ; and he may remove and in put tennents , and that without any preceding declarator or favourable account , esteeming the retour mail for the rent , as in non-entry ; but he may immediatly pursue actions for mails and duties , removing , &c. unless the ward be taxed ; and then the superiour can have no more then the duties to which it is taxed . but for it , he hath not only the vassal , and all intromettors with the fruits , personally ; but he may also poynd the ground for the taxed duty , as craig affirmeth in this title . . yet the reach of the ward by the nature of the fee , cannot extend to alienation , or consumption of the substance of the fee , or any part or pertinent thereof , and this is cleared by the statute , parliament . cap. . whereby donatars must find caution not to destroy the biggings , woods , stanks , parks , meadows , or dovecoats , but to keep them in such kind as they get them . ward is also restrained by the statutes confirming feues , of which formerly ; and these stand valid against the superiour , during the ward ; so do also all infeftments holden of him , either by resignation or confirmation ; but not infeftments to be holden of his vassal , unless confirmed by him ; for albeit , confirmations by the king , which pass of course , do not take away the casualities of ward , &c. of the kings vassals , which affect the fee of the sub-vassals ; yet the confirmation of other superiours of sub-vassals rights , doth take off from him the ward , if the right be feu only generally , without mention of the ward , seing the act . doth only annul feues set by vassals , holding ward of subjects without their superiours consent , which was so found , albeit the feu was under reversion , that it was free of the ward and marriage of the vassal as to the subvassal feuer , but did only affect the vassals interest , viz. the feu duty , reversion and back-tack , july . . earl of eglintoun contra the laird greenock . ward is also restrained by the terce and liferent of husbands , by the courtesie of scotland , both which are introduced by law , and are valid without the superiours consent . but rentals and tacks set by the vassal , have only this effect against the superiour or his donatar , that the tennents or labourers shall not be removed till the next whitsonday , after the beginning of the ward , paying the old accustomed duty , par. . cap. . but then the superiour or his donatar may remove them , notwithstanding their tacks be unexpired , which therefore sleep during the ward , but revive against the setter and his heirs , and endure as many years after the ward , as they were excluded by the ward , sinclar , may . . laird of durie contra robert steuart . ledingtoun december . . kings donatar contra tennents of drorgan . july . . laird of couter contra where also the terce was found relevant to exclude the superiour ; yet ward is not excluded by annualrents holden of the vassal , march . . james weyms contra kincraig . but now since the act of parliament . prohibiting feues without consent of the superiour ; these did not exclude the ward or other casualities of the superiority , as to fees not holden of the king , which was even extended to the fees holden of the prince , hope , ward , lady cathcart contra vassals of cathcart . and after the act of parliament , . extending the foresaid act to ward-lands holden of the king and prince ; feues then granted till the year , . when the effect of that act , being before suspended by act of parliament , . was taken away . and so feues of lands holden of the king or prince , were valid till the rescissory act , . whereby the said parliament . was rescinded , par. . cap. . so that now feues of lands holden of the king , prince , or any other superiour , without their consent , do not exclude it or other casualities of the superiority , except such feues as were granted the several times they were allowed by law ; but a charter upon an apprizing did exclude the ward , though no infeftment was taken thereupon , during the vassals life , as hope observes , title ward , hamiltoun contra tenents of newburgh ; because the superiours charter without seasine did import a gift of the casualities , which might befall to the superiour ; and he there observes , that a ward was excluded by appryzing and infeftment thereupon , whereby the defunct was denuded , albeit it was to the behove of his heir , laird of ley contra laird of barro . during the legal , the superiour or donatar , as before the infeftment upon the apprysing , they might pay the appryzer , and take his right : so after , they may redeem him and exclude him , it being against reason , that by appryzing ( suppose of a great tenement ) for a small debt , the superiour should be simply excluded , and it may be upon design ; if an appryzer possess , his ward falls , and not the former vassals , though the legal be not expired ; but after the ward is fallen , though the superiour received an appryzer appryzing from the heir without protestation ; yet it was found not to prejudge the ward by the death of the former vassal , july . . hospital of glasgow contra robert campbel . but a superiour was not excluded from the ward by his vassalt death , because an appryzer had charged him to enter him , during that vassals life , seing that charge could not make the apprizer vassal , by whose death , ward would fall , and thereby make the superiour lose this casuality by the death of both the old vassal and the appryzer , unless the superiour had been in mora aut culpa , which was not found , unless a years rent of the land , or annualrent of the money : and a charter were offered , with a bond to pay what further the lords should modifie , february . . black contra david trinch . if an appryzing be satisfied or extinct by intromission , the ward-lands appryzed become in the superiours hands by ward , till the majority of the heir , july . . lindsay of mount contra maxwel of kirkonel : in which case , the appryzer was not found oblieged to restrict to his annualrent , to the effect , that the donatar of ward might have the superplus , by the act of parl . cap. . betwixt debitor and creditor , whereby there is a power given to the lords of session to cause appryzers restrict to their annualrent , which is only personal , in favours of the debitor , if he demand it . the benefite of ward is also burdened with the mentainance and sustentation of the heir , by vertue of the foresaid act , . cap. whereby a reasonable sustentation according to the quantity of the heritage is appointed to the heir , if he have not lands blensh or feu to sustain him , and that by the superiour and his donatar , and conjunctfiars and liferenters of his estate ; the quantity whereof is to be modified by the lords , according to the quality of the heir , and so found , not only when the heir had no means , but though he had , if it was not sufficient to entertain him , the superplus was modified out of the ward-lands , and lands liferented proportionably , march . . heirs of miltoun contra calderwood . we shall say no more of the aliment of heirs by ward superiours , or their donatars in this place ; but you may see it in its proper place , title . section third . thus it appeareth in what way the casuality of ward is excluded , burdened or restricted , being always by law , or by the consent and deed of the superiour ; but no private deed of the vassal without the superiours consent , or appointment of law , can burden the fee when it is in the hands of the superiour , by ward , &c. so that servitudes introduced by the vassal , as thirlage , ways and the like , are not effectual against the superiour , or his donatar , when the fee is in their hands ; unless such servitudes be introduced by prescription of fourty years , or immemorial possession , whereunto all parties having interest their consent is presumed ; and therefore , in that case there is more ground for sustaining of the servitude , even against the superiour , who might at least have used civil interruption . marches set by the vassal of consent , or by cognition , whereto the superiour is not called , hath no effect in his prejudice during the ward , feb. . . lord torphichen contra as to the personal debts of the vassal , whether heretable or moveable , they do not affect the fee , though in ward , albeit craig dieges . . relateth , that of old it was otherways , and that the superiour had the ward , with the burden of intertaining the heir , and with the paying of the annualrents of his heretable debts , and that the custom of wards in france is such : yet there is no appearance that the custom hath ever been so with us , since the reign of king malcolm , who gave out all his lands to his subjects , and reserved only to himself , for sustaining of the royal dignity , the ward and marriage of his vassals , which at that time were very considerable , when most of all the lands in scotland were holden by simple ward ; but since , a great part hath been changed into blensh , or taxed ward , or given out in burgage and mortifications , or in feues . the casuality of ward may be enjoyed immediatly by the superiour , but is more ordinarly gifted to donatars , not only by the king , but by other superiours ; which donatars may do whatsoever the superiour himself might , because they act by his right , and are in effect his assigneys : so that if gifts be granted to more donatars , the first intimation or diligence will be preferred . gifts of ward and non-entry were accustomed of old , to be granted by the exchequer together , bearing , not only for bygones , but for time coming , till the entry of the 〈◊〉 heir or heirs : and albeit gifts of ward run still in the same style ; yet by the acts and customs of exchequer , ward and non-entry are several casualities , and pass by several gifts ; and notwithstanding the foresaid clause , the gift of ward reacheth only during the time of the ward , and three terms thereafter , if the lands run in non-entry ; but ward was not found to give right to three terms full rent , here the donatar was not in possession during the ward , novemb. . . laird of dun contra viscount of arbuthnet . and albeit the gift contain relief , yet that casuality , as hope observeth , is always demanded by the exchequer , and counted for by the sheriff , being but a small duty of the retoured mail , as the gratuity to the superiour at the vassals entry : in that same place , he saith , that under the gift of a simple ward , is not comprehended taxed ward , which being taxed , is as a feu duty , and rather as a part of the kings ordinar revenue , then a casuality : upon which ground , the earl of kinghorn , as tutor to the earl of errol , having gotten a gift of his ward , without mention of taxt-ward , he was necessitat again to take a new gift for the taxt-ward , and gave a considerable composition , and did not adventure to put the matter to debate before the lords of session , whether his first gift would have been extended to taxt-ward or not . . the fourth casuality of superiority , is the interest of superiours in the marriage of their ward-vassals , which doth arise from the nature of the feudal contract in proper fees , whereby the vassal oweth the superiour , faithfulness and military service , and is thereby in his clientele , which could import no more then that he should not contract affinity by marriage , with any that were in enmity with his superiour ; for thereby his fidelity might become suspect , which would take place , not only in the first marriage of the vassal , but as to any subsequent marriage , though he had succession by a former marriage , and might take place in the marriage of the vassals eldest son , even in his life , and might be considered as an act of ingratitude , if the enmity betwixt the superiour and the family with whom the vassal was to marry , were known to him , and might import a breach of his fidelity , if the superiour did prohibit him to match with that family which was in open and known enmity to him : the superiour might also have interest in his vassals marriage , when he had the custody of his person , as a tutorial trust for the good of the vassal . . but time and custom hath given superiours a far different interest in the marriage of their vassals , here and in england , of which there is no mention in the common feudal customs , nor is it in use in other kingdoms ; for albeit , by the custom of france , female heirs in the kings custody , must require the consent of the king or his procurator , yet the not doing so , infers not the value of their marriage , as in england ; and with us it is become a power in the superiour , to exact out of his vassals fee , the value of a tocher , suitable to the whole means and estate of the vassal , if he marry without his consent , and the double value being solemnly required , to marry a suitable person without disparagement , if he doth not obey , but marry another ; this custom was introduced in england , in the reign of king henry the third . it is commonly held to have been introduced in scotland , in the reign of king malcolm the second , who gave out all his lands in scotland in fee , and reserved to himself , for the ordinar support of the royal dignity , the ward and marriage of his vassals , whence the marriage was designed as a profit to the crown , and by example was derived to the subjects , who giving their lands ward , were understood to give the same with the like priviledge of the value of their vassals marriage , which doth never take effect till the vassal be major ; for during his minority , his superiour or his donatar , have the full profites of his fee , over and above the expenses of his education , and mentainance according to the vassals quality , if he have no other estate which is not ward , the profits whereof may be sufficient to entertain and educate him ; or in so far as these profits come short ; for no minor is oblieged to spend his stock upon his mentainance ; nor may his tutors or curators securely do the same . therefore the true interest of superiours in their vassals marriage , should now be the tocher suitable to the vassals estate , marrying after his predecessours death , if he had not been married before ; for the value of the marriage being due but once , and not for every marriage , if the first marriage fall not after the defunct vassals death , it should not be demanded , nor any account called for of the profite of the marriage , falling before he could be vassal , though it hath been claimed , where the vassal was widow at his predecessors death , having no children of the former marriage ; but it came not to be determined by the session , though it was demanded by the commissioners of the thesaury , from sir robert barcley of pearstoun . and albeit the vassal never marry , yet if he be solemnly required by instrument to marry a suitable person without disparagement , if he live to his majority , though he never marry , his fee will be lyable to the value of his marriage , albeit he willingly ly out uninfeft , not by the superiours fault , but his own ; for though creditors have a remeid by a charge , to enter heir within fourty dayes , with certification , that all execution shall pass , as if the debitor were entered ; yet there is no reason or practice to extend the same to superiours , albeit craig think that it may be so extended , and that the marriage is not due , unless by that means , the heir required to marry be entered , or at least charged to enter ; but by a solemn debate and decision betwixt french of frenchland and thorniedykes , upon the . of july . the lords found that the marriage was due , if the appearand heir became marriagable , though dying in minority , when they were not entered heirs : but in that case , the heirs were female ; and it does not appear whether they were past fourteen , at which time their ward ceasseth , and they are in the same case as men , when they pass twenty one ; neither doth it appear whether they were required to marry or not ; and therefore , we shall not thence conclude , that a marriage is due by the appearand heirs being marriagable , though dying uninfeft and in minority , against which , craigs opinion is very positive , l. . dieges . yet from this decision , and from that betwixt dickson of headrig and the kings donatar , decided , november . . we may conclude , that there may be more marriages exacted by the death of one ward-vassal , having several appearand heirs , of which none were entered ; and it being debated , whether the marriage would be due , though the vassal died unmarried and unrequired to marry , in the case of archibald campbel contra laird of mcnaghtoun , decem. . . the lords proceeded no further , but did only determine , that the single value is not penal but favourable . . and therefore , the single value of the vassals marriage needs not be pursued penally , because the vassal married without the superiours consent , or being required , and living till majority , though not entered by his fault , did not marry ; but may be pursued as a casuality , and profite due to the superiour , for the vassals marriage , marrying after his predecessors death : or being required to marry , did live unmarried past his majority , or married without his superiours consent ; by which , all the unhandsome formalities , accustomed to reach a double value , might be abated ; for the single value would be due , if the vassal live to majority and never marry ; and if he did marry without the superiours consent , the double would be due ; and for obtaining the superiours consent , it would be necessarly consequent , that the vassal should confer with the superiour , and propose to him whom he inclined to marry , and if the superiour consented not thereto , he should condescend upon his reasons , and offer another fitter person . . all which being exprest by instrument , the session would judge who were in the right , and would be very favourable in the single value , but would not sustain the double , if the superiour did without reason refuse his consent , without necessity of the ordinary form of requisition , offering a particular person , and opportunity of a visit and conference , and a day and place to marry , not being within thirty days ; and a second instrument , bringing that person to the place of conference ; first to offer her consent , so that if the vassal at the first fight did demand of her if she would marry him , she behoved immodestly enough to consent without acquaintance , without consideration or affections ; and then openly to appear at the church , and offer her self again , which no fit and modest person would be induced to do ; and therefore , these are meer formalities , without any design to offer a suitable person ; so that there is no reason the superiour should lose the single value , for any defect in these formalities ; nor that he should have the double value for using the same without any just design , or desire of acceptance ; and therefore , the double value hath been seldom found due , and so takes no place without the solemnity of an instrument of requisition by a nottar , observing all the formalities of producing the donatars gift , if he do personally require , and both the gift and procuratory , if he require it by his procurator , and the offering of a person by name , and an unsuspected place for view and conference , and another day and church for solemnizing the marriage , and at that day a new instrument presenting the woman , and waiting for the vassal till one of the clock , wherein there is the greatest exactness observed as to the double value ; but there was no necessity found to make the requisition to curators , whose consent is not required to the marriage of minors ; as was found in the case of the heirs of thorniedike . but the double value was not found due , where the superiour or his donatar appeared not at the day appointed , for interview , hope , marriage , earl of angus contra hugh nisbit : nor where the instrument of requisition mentioned not the gift produced , though it was offered to be proven by witnesses , that it was truly produced , albeit it was not called for , march . . earl of rothes contra balsour , hope , marriage , drummond contra laird of manner . the double value was not sustained , because the place appointed for interview , was the donatars lodging , july . . french contra heirs of thorniedike . neither was it found effectual till the heir married another , and after the ward was ended , december . . and january . . laird of kilburnie contra heretrix of fairlie . neither was the double value found due , where the heir remained several years marriageable , and the requisition was made after the heir was aggreed to be married with another , and the day of the marriage was set , albeit the contract of marriage was not subscribed , & separatim , because the woman offered , was agreed in marriage with another man , and both were found probable by the communers , feb , . drummond of machanie contra stuart of innernytie . and even when the double value is sustained , it makes but a small addition ordinarly to the single value , which is two or three years free rent , or annualrent , deducing liferents ; or annualrents real or personal of the vassals hail estate , and the double value adds ordinarly but a fourth . . the single value is due though the vassal was married before his predecessors death , being by a fraudulent precipitation , the predecessor being then moribundus , and dying within some few days , and no previous treaty or proclamation , february . . lord thesaurer and advocat contra lord colvil . there are several cases to the same purpose , observed by sir john skeen . . there is no regard had in the modification of the value of the marriages , what tocher the vassal actually got , or any personal consideration , but only an ordinary tocher for such an estate ; it was modified to two years and an half , in the case of innernytie , and to two years in the case of zeaman of dryburgh , july . and . . in which case the vassals rent , and annualrent , being referred to his oath , he did depone thereupon , qualificate , that he had so much debt , and such burdens , which was not sustained by way of quality , without probation . neither is the marriage of heirs female esteemed the worth of their estate , which ostentimes is disponed , nomine dotis , but only such a sum for them all , as would have been modified for the marriage of one man , as was found in the case of the heirs of fairly and thorniedikes , and so was found , june . . mr. george gibson contra janet ramsay . . but the marriage of heirs is debitum fundi , and the tennents goods may be poinded therefore , for their terms mail ; or otherways the ground-right and property may be appryzed , both being done after the ward is ended , which in men is at the age of twenty one compleat ; and in women , at the age of fourteen compleat . this appryzing or adjudication , will be drawn back to the time that the marriage was due , and preferred to any legal diligence since that time ; as all appryzings , super debito fundi , are , december . . patrick hadden contra john moor. but it doth not affect the appearand heir personally , not being in possession , nor is the tocher he got after his predecessors death , accounted as a part of his estate , being marriageable before that time , but only the estate he had when he married , or was required to marry , january . . laird of dun contra viscount of arbuthnet . . the value of the marriage is , jus indivisibile , and belongs not to every superiour , of whom the vassal holds ward-lands , but to the most ancient superiour . . the king by his royal prerogative hath the marriage of the ward-vassal , whensoever he becomes immediat superiour , if before the marriage fell due , though the lands holden of the king were taxed to a small sum for the marriage , july . . earl of argile contra mcleod . and though the vassal hold some lands of the king simple ward , and others taxed ward , the full value is due ; but the taxed value is deduced as a part of it , february . . kings advocat contra laird of innernytie : yea , a marriage was found due by a vassal in the principality , albeit he held lands immediatly of the king , taxed ward , in respect of the non-existence of a prince ; during which , the king acts not as administrator or curator hareditatis jacentis , of the prince , but proprio jure , as soveraign prince , and stewart of scotland , jan. . sir william purves contra the laird of lus. . a marriage was found due by the heir of an appryzer , who died infeft , albeit within the legal , unless the appryzing were proven to be satisfied in the defunct vassals time , july . . kings advocat contra zeaman of dryburgh . to come now to the exceptions exclusive of the value of marriage , it was not found relevant , that the vassal died in the war , by the act of parliament , . seing there was a pacification after that act , and it was not renewed thereafter , july . . lord hattoun contra earl of northesk . neither because the vassal died in the kings service , seing the acts to that purpose were only temporary , january . . captain paterson contra tweedie of whitehaugh . the next exception is the consent of the superiour , which was not inferred by the superiours being present at the marriage , as was found in the case of the earl of argile contra m`naughtoun : nor by receiving a vassal upon appryzing : neither by entering the vassals heir though without reservation ; these being acts to which the superiour might be compelled by charges of horning upon appryzings , or on precepts out of the chanclery upon retours , even though these were not actually used , but that the superiour gave precept of clare constat ; yea , his subscriving witness in the vassals contract of marriage , after gifting of the same , was not sustained , feb. . . 〈◊〉 contra keiths . so that it seems no less then a consent as superiour , will exclude the marriage . the most exceptions are upon the informalities of the instrument of requisition . but the most ordinary and material exception is disparagement , which doth not consist in equality of estate or tocher , but in the inequality of blood , wherein if a zeaman be offered to a burgess , or a burgess to a barron , it is commonly interpret disparagement ; but a barron to any superiour dignity of a subject , imports no disparagement : or if there be great disparity in age , or that the party offered , hath any considerable defect , as the want of a member ; or have any loathsom or perpetual disease , which are all the grounds of disparagement , mentioned by craig ; buthe thinks not claudication to infer disparagement , and it is like , as to the single value , the disparagement behoved to be very gross ; but as to the double value , any just ground of aversion seems to be be sufficient , as deformity , even hardness of favour ; or any vulgar reproach of inchastity , insobriety , or other vice : it will also be a temporal exception , if requisition be made before the vassal be mariageable , which is the age of fourteen compleat in men , and twelve compleat in women , which may become an absolute exclusion , if the party so required die unmarried ; and though the party marry to another , it will but infer the single value . the value of marriage is due to the superiour , if the heir was not married at his predecessors death , whether minor or major , marrying without consent of the superiour or his donatar , or that being or becoming major , and required , they marry not at all . . the last common casuality of superiours , is the liferent-escheat of the vassal , when the vassal is denunced rebel , for disobedience of the law , which because it is intimate by three blasts of an horn , is called horning , if he continue so unrestored , or unrelaxed year and day , his liferent is escheat , or foresaulted unto his several superiours , of whom he held his fees ; this may seem a penalty for disobedience to law , and is so as to fees holden of the king ; yet if it had no other ground , the liferent could not befall to the superiour , but to the king , whose command was disobeyed , as forefaulture and single escheat do ; but the original of it is , that rebellion is like , capitis diminutio , or civitatis amissio , amongst the romans , whereby such person cannot stand in judgement , and they are civiliter mortui , and thereby their fees become void , and return to their superiours , and so is declared , parl. . cap. . . liferent-escheat carries the profit of all fees and liferents , whether constitute by conjunct-fee , infeftments , terce or liferent-tack , during the life of the rebel , having remained year and day at the horn ( though thereafter he be relaxed ) during his natural life , even though he be not infeft and entered as heir the time of his denunciation , july . . moor contra hannay and the earl of galloway . yea , though there be no infeftment , if by contract or disposition , there be any heretable right or life-rent provided , even though there were no infeftment required , as a terce by paction without service or kenning , hope horning maxwel and gordoun contra lochinvar . so life-rent tacks of lands or teinds fall under escheat , without prejudice to these who have right to such tacks after the life-renters , parl. . cap. . these tacks befall to the master of the ground ; and life-rents by terce or courtesie , fall to the superiour of the land ; for these life-renters are his vassals during life , and owe him fidelity and a reddendo . . whensoever there is not infeftment actually expede , the denunciation makes not the liferent to belong to that person of whom the liferent should have been holden ; but to the king , as an annual-rent due by contract or disposition , to be holden of the disponer , decemb. . . hay contra laurie ; july , . halyburtoun contra stewart ; january . . menzies of castlehill , contra kennedy of auchtifardel . so likewise , life-rent escheat of a minister causeth his stipend and profit of his manse and gleib , though locally within regality , to fall not to the lord of regality ; but if there be infeftment , it falleth to the immediat superior , albeit it proceed upon disposition containing obliegement for double infeftments , and that not only till the publick infeftment be taken , but even thereafter during the vassals life , january . . meldrum contra meldrum , seing here the life-rent was gifted and declared before the publick infeftment was taken . and likewise an annual-rent due by a heretable bond , bearing a clause to infeft the creditor in an annual-rent , without mention of particular lands or manner of holding , was found to fall in life-rent escheat to the kings donatar after year and day ; but it was not determined , whether if the sum were payed or consigned , it behoved to be re-imployed for the kings donatars use during the creditors life ; whereon , and in the case of redemption of wodsetts , most of the lords were of a contrary opinion , july . . haliburton contra stewart . it was found to be re-imployed for the superior during the wodsetters lifetime , june . . tailfer contra maxtoun and cunninghame . . life-rent escheat of the vassal carries the life-rent of the sub-vassal , falling after the denunciation of the vassal , and being year and day at the horn , february . . clunie contra bishop of dunkeld , july . . james ruel contra laird of billi ; because then the superiour is in place of the vassal : but where the sub-vassals life-rent fell before the vassals own liferent , it was found carried by the vassals single escheat , february . . symson contra laird of moncur . life-rent escheat falleth by the vassals rebellion , and the year and day subsequent is only allowed to purge the rebellion by relaxation , which being used year and day after the rebellion , hath no effect as to the life-rent escheat of such lands as belong to the rebel the time of the denunciation , though it have effect as to his moveables : therefore , the vassals voluntary deed prejudgeth not the superior of his life-rent escheat , not only such deeds as are done after year and day from the denunciation , but which are done at any time after the denunciation , if relaxation be not used within year and day ; which is to be extended to these cases . first , no infeftment , following upon a debt contracted by the rebel after the rebellion , though the infeftment be accomplished within the year , will exclude the life-rent escheat , or prejudge the superior , if relaxation be not used within year and day , whether the infeftment proceed upon the rebels own disposition , or upon apprising ; for in both cases , it is the voluntar deed of the rebel that prejudges the superiour : for , albeit the apprising be a deed of law and necessary , yet it proceeds upon a debt voluntarily contracted after rebellion , such debts will not exclude the single escheat , and therefore ought not to exclude the life-rent escheat , which was so found , though the infeftment was granted to a son and his wife for a competent tocher , spots . escheat panmure contra laird and lady ghight . . the debts or obliegements of the vassal , though they preceed the denunciation , no infeftment granted by him , in cursu rebellionis , for satisfying these anterior debts , will exclude the life-rent escheat , unless he had been specially oblieged to grant such an infeftment before the rebellion ; for then the granting of it after , is not a voluntary , but a necessary deed , which he might be compelled to grant , january . . james vallance contra thomas porteous : in which case , an infeftment for an onerous debt before rebellion , was not found sufficient to exclude the life-rent , seing there was no anterior obliegement to grant that infeftment ; which is the more confirmed by the parity of the case of inhibitions , which annull infeftments after the the inhibition , though granted for satisfying anterior debts : but if there was an anterior obliegement , the infeftment conform thereto , though after the inhibition , is valid , as not being a voluntary , but a necessary deed , vide title infeftments , § inhibition . thirdly , dispositions and obliegements to grant infeftments anterior to the rebellion , and infeftment thereupon posterior , do not exclude the liferent escheat , unless the infeftment be taken in cursu rebellionis ; and so a contract of wodset long before rebellion , clad with thirty eight years possession before denunciation , was not found sufficient to exclude the life-rent escheat , december . . mr. james lindsay contra scot. neither a charter and inhibition thereupon , seing there was not seasine taken within year and day , december . . jonet herris contra glendinning . neither a base infeftment before denunciation , there being no possession thereon till year and day , march . . laird of kentoun contra blackcadder ; february . . robert miln contra clerkson . . fourthly , apprisings or adjudications , though for a debt anterior to the rebellion , exclude not life-rent escheat , unless infeftment or charge against the superiour be used thereupon within year and day after rebellion ; for without infeftment or charge , apprising is no real right : and therefore , though it were led before rebellion against a vassal , if infeftment or charge follow not in cursu rebellionis , it excludes not the vassals life-rent escheat to fall to the superior or donatar , july . . rollo contra laird of kellie , albeit infeftment follow upon the apprising before the life-rent was gifted , hope horning and escheat , sir patrick murray contra adamson . neither did an apprising upon a denunciation , begun in cursu rebellionis , but not perfected , exclude the life-rent escheat , february . . cranstoun contra scot. but if apprising or adjudication be led for sums prior to the rebellion , and be compleat by infeftment or charge in cursu rebellionis , albeit they be deduced after rebellion , they exclude the liferent escheat , as is insinuat in the limitations in the former decisions , and was so decided , february . . tenants of lochauld contra yonmig and sir george arskine . liferent-escheat being one of the casualities of superiority , only introduced by statute or custom , there is this difference of that which hath been said of non-entry , ward or recognition , which are casualities arising from the nature of the feudal contract , that liferent escheat flowing not thence , but upon the vassals rebellion and disobedience to law , which is not against the superior or any delinquence against the feudal contract , the vassals liferent escheat gives the superior no more then the vassal himself had the time of his denunciation , and so all real rights compleat by possession , whether infeftments or tacks , are not prejudged by the subsequent life-rent escheat , as was found , january . . mr. william beatoun contra scot of letham . in feues , so far as is allowed by law , the vassals life-rent will reach no more then the feu-duties of feues set by the vassal before his denunciation : but any subaltern base infeftment , not cled with possession before rebellion , is excluded by the life-rent , march , . laird of rentoun con . blackcader ; feb. . . robert miln con . clerkson ; in which case it was found , that possession not being attained in cursu rebellionis during the year , it was not effectual . if a 〈◊〉 be set , without diminution of the rental , for the old tack-dutie , it will not be excluded by the life-rent , though it be set after denunciation , as was found in a tack after denunciation within the year , hope , horning , charters contra mclelland ; spots . escheat , tillibairn contra dalziel . the like of a tack set to a kindly tenant , hope , horning , paton contra drumrash : for , in such cases , setting of tacks is a necessary administration for the good of both superiour and vassal , and to shun debate concerning prejudice and unanswerable tack-duties , as in other cases of administration of beneficed persons ; so if there tacks be set without diminution of the rental , they are good . . liferent-escheat extends it self to all fees , whether holden ward , blensh or feu , but not to burgage and mortification , because the fiar is a society and incorporation , which dieth not ; and therefore , have no liferent-escheat : and though denunciation may be used against the persons administrating the same , even for that which is due by the incorporation , and as they represent it ; yet that being supposed their fault and negligence , doth not prejudge the society , as magistrates of burghs , masters of colledges , incumbents in common or collegiat kirks , chapters or convents , sede vacante . . but where a beneficed person having a distinct benefice , or a stipendary , is denunced for his own debt , his liferent-escheat falleth , and therewith the profites , during his life or incumbency , because though the fee be not in him , yet he hath a distinct liferent thereof , which is not so in the former case , where both fee and profites are in the society . . liferent-escheat is made effectual by a general declarator , finding the vassal to be denunced , and year and day past by production of the horning , but there is no necessity to prove him vassal , unless he be a singular successor in the superiority , not acknowledged by the vassal ; or in case the vassal disclaim , herein is no mention of profites ; but this declarator being obtained , the fee is void from the denunciation ; and the superiour or his donatar have access to the mails and duties thereof , and to set and remove the same , and to do all deeds accustomed by the vassal himself , in the same manner as ward : this useth to be done by a special declarator , which is now accustomed to be in one process with the general declarator . as to the profites , vide title . title xv. annualrent where , of pensions , and poinding of the ground . . description of annualrent . . therise of annualrent . . the manner of constituting annualrents . . the kinds of holding of annualrents . . liferent-escheat of annualrenters . . kinds of annualrents amongst the english. . the difference of feu annuals , ground annuals and top annuals . . poinding of the ground . . the extent thereof . . who must be cited in poinding of the ground . . the effect of poinding the ground as to ground rights . . the order of poinding moveables , by several annualrenters . . annualrents are effectual , personally against intrometters . . annualrents are moveable as to bygones . . extinction of annualrents . . ecclesiastick pensions affect the benefice : . pensions by secular persons , how far effectual . . the kings pensions are not arrestable . whether annualrent by infeftment be a distinct right of property ; or whether it be only a servitude upon the ground , leaving the name of property to the ground right , as craig esteemeth , l. . dieges . . § . last . it is not worth much debate ; but in either case it falleth fitly here under consideration , after property and superiority , and before unquestionable servitudes . . annualrent is so called , because it returneth to be payed every year at one or two terms ; and therefore it is called rent ; and because it is yearly so payed , it is called annualrent . the english extend these rents to rents due by lease or tack ; but with us , annualrents are only constitute by infeftment ; and though the disposition or provision thereof , may be sufficient against the constituent or his heirs , it is not effectual against their singular successors , and is no real right of the ground . . the rise of annualrents is from the prohibition of usury in the canon law , which they extend to the taking of any annual , or profite for money or any other thing , in lieu whereof those who were unfit for trading , or mannaging the property of lands , bought annualrents , either irredeemably , or under reversion , it had the same effect with the personal obliegement for annualrent ; and therefore , it is still retained , where annualrent according to the rates prescribed by statute or custom is allowed by personal obligation , and is not usury ; and the infeftment of annualrent , is in security thereof . annualrents may be constitute , either of money , victual , or other fungible , and that either in fee and heritage , or in liferent ; and either by a several infeftment , or by reservations in infeftments of property : in which cases , the proprietars seasine serveth both . . infeftments of annualrents in most things do agree with the infeftments of property , in the manner of constituting thereof , by charter or disposition and seasine ; in which the symbol and token of the delivery of possession of the annualrent , when money is , a penny money ; and when victual , a parcel thereof . yet an old infeftment of annualrent was sustained , though it bore , only seasine to be given , according to the solemnities used in such cases ; albeit it was given thirty six years before , and no possession thereby , march . . somervel contra somervel of drum. and being once validat by possession , it was not excluded by the infeftment of property of the present heretor , though the annualrenter shew not the infeftment of him who constitute the annualrent , with the proprietar his authors infeftment ; so that it did not appear whether both infeftments flowed from one common author , seing the infeftment of annualrent was prior to the infeftment of property , it was not excluded thereby , february . . smeitoun contra tarbet . . annualrent may be either holden ward , or blensh , or by mortification , and useth not to be holden feu or burgage , and is most frequently blensh for a penny ; but if no holding be exprest , it is held to be ward ; and therefore , the casualities of the superiority befall to the superiour , according to the kind of the holding , as in property ; so that being ward or blensh , it falleth in non-entry , in the hands of the superiour , without declarator , and so ceasseth during that time , even though the constituent as debitor , be superiour , though he may be lyable personally , upon any personal obliegement , for paying thereof , march . . somervel contra somervel . annualrents may be either base , or publick by resignation or confirmation , as to the requisits to accomplish it when base , it is fully shown before , title . § . base infeftments . . so likewise annualrent falling in liferent escheat , belongs to the superiour , during the annualrenters life ; and if it be redeemed , the profite of the money comes in place thereof , as followeth , a pari , from a wodsett redeemed , which was fallen in liferent-escheat ; and therefore , the money was ordained to be imployed upon annualrent for the superiour , during the life of the wodsetter , june . . tailziefer contra maxtoun and cunninghame . . the english distinguish rent in rent-service , rent-charge , and rent-seck ; rent-service is that which is due by the reddendo of an infeftment of property , as a feu or blensh duty ; this is a part of the infeftment of property , but hath the same effect by poinding of the ground , as other annualrents ; rent-charge is that which not being by reddendo , yet is so constitute , that the annualrenter may , brevi manu ( his terms being past ) poind the ground therefore , we have no such annualrent , for we admit of no distress without publick authority ; but all execution must proceed by decreet and precept . rent-seck is so called , as reditus siccus , because it is dry , having no effect without sentence ; such are our annualrents . . there is a distinction of annualrents mentioned , par. . c. . in feu annuals , ground-annuals , and top-annuals , which craig thinketh to quadrat with the english distinction of rents : but the consideration of that act and ordinance , in relation to the articles there exprest , will make it appear , that the case being there of tennents within burgh , the feu annual is that which is due by the reddendo of the property , either of the ground before the house was built , or the ground and house together . ground-annuals is a distinct several annualrent , constitute upon the ground , before the house was built ; and the top-annualrent is out of the house , which is the more clear , that when such tenements were destroyed , the least abatement was of the feu-annual , or feu-duty ; and therefore , the proprietar repairing the tenement , was to pay the feu-annuals , with abatement of a sixth part ; and the ground-annual , as being more ancient then the top-annual , suffered an abatement of a fifth part , and the top-annual of a fourth part . . the chief effect of annualrents , either by reddendo in property , or several infeftments , is by poinding of the ground , upon which the annualrent is constitute , and that by an ordinary action , whereby the annualrenter pursueth upon letters to poind and appryze all goods upon the ground , for payment of his annualrent ; and also for poinding and appryzing the ground-right and property it self . as to the first member , the english custom extendeth it to all goods that shall happen to be upon the ground at the term , if they have but lain down thereupon . and our ancient custom extendeth it to all goods of the possessors , & invecta & illata , by them , without retrinching it to what the tennent is due to the proprietar , constituent of the annualrent ; and the poinding in this case was extended to purge a spuilzie , november . . watson contra reid . june . . laird of ednem contra tennents of ednem , where the pursuit was rather declaratory to establish the pursuers right , then for present possession or execution . but thereafter the lords have been accustomed to interpose with chargers upon decreets of poinding of the ground , to restrict the same in favours of tennents , to their terms mails from the statute , . cap. . bearing , that the cattel of poor men , inhabitants of the ground , shall not be poinded for the landlords debt , where the mail extends not to the avail thereof ; and though the act seemeth correctory of an evil custom , to poind the tennents goods for the masters debt , yet the same reason , equity , and favour of their rusticity , craves the extension of it to these debita fundi ; and therefore , it was so restricted , the tennents producing their tacks , or offering to depone upon their rent summarly , without taking a term ; but it was not found requisite that the annualrenter should either lybel or prove the quantity of the rent , february . . lady pitfoddels contra the laird of pitfoddels and tennents : in which case it was found , that if the tennents the time of the poinding had compeared and produced their tacks , or had offered to make faith what the rent was , if more had been poinded for , then equivalent to their rent , it would have been a spuilzie ; but they should not only depone what their rent is , but what is resting of it ; for the poinding of the ground , or the brieve of distress , is only restricted by the act of parliament , for remeid of that inconvenience , that was sometime in use ; that where sums are to be payed by the brieve or distress against the lord owner of the ground , the goods and cattel of poor men , inhabitants of the ground were taken and distrenzied for the lords debt , where the mail extends not to the avail of the debt ; and therefore , it is ordained , that the tennent shall not be distrenzied for the lords debt where the mail exetnds not to the avail of the debt ; further then his terms mail extends to . and therefore , in so far as the tennents mails are resting , the poinding may proceed : and likewise for the current terms , though not yet come : that is , if the rent be victual , payable all at one term , the poinding may proceed for the value of the victual , according to the rate of the victual , communibus annis , in the several places of the countrey , as men use to buy , or wodset , or by the feirs of that place : neither cantacks absolutely secure the tenents , if they be posterior to the infeftment of annualrent ; in which case , if they be within the true value of the land , the 〈◊〉 or others poinding , pro debitis fundi , cannot be prejudged by collusive tacks , or such as are granted with considerable diminution of the true worth : so that the poinding may proceed for one year or terms mail , as the lands are worth the time of the poinding . but in this case the poinding cannot proceed summarly , till it be cognosced by declarator , or reduction of the tacks , which may frequently occur , tennents being oft accustomed to suspend in decreets for poinding the ground . poinding of the ground was found to take no effect against corns , standing upon the ground , having been poinded before by a third party , for a debt , hope poinding , paterson contra patrick adam . . in poinding of the ground , the proprietar the time of the summonds , must be called , albeit his infeftment be base , but not the superiour , january . . oliphant contra oliphant . and is sufficient to call the wodsetter without the reverser , february . . gilbert williamson contra hendrie cunninghame . the tennents also must be called , in so far as concerns their goods , but the present heretors , and tennents being once discerned , the decreet will be effectual against all singular successors , and subsequent tennents without a new decreet of transferrence , hope , poinding of the ground , forrester contra tennents . november . . watson contra reid . june . . adamson contra lord balmerino . but poinding of the ground upon annualrents may proceed summarly , without declaring the right in a petitorie judgement , though the annualrenter hath not been in possession for seven years ; and a posterior annualrenter in possession seven years , was not found preferable , because annualrents being debita fundi , have neither prejudice nor profite by possession , as in a possessory judgement , which is only competent upon infeftments of property or tacks , january . . old lady clerkingtoun contra clerkingtoun and the young lady . and a poinding of the ground may proceed against the appear and heir , without a charge to enter heir , january . . oliphant contra hamiltoun . . as to the ground-right and property of the land , appryzing upon infeftment of annualrent is not only effectual against the proprietar , but against any other appryzing for personal debt , and infeftment thereupon , being after the original infeftment of the annualrent ; though before the appryzing thereon , hope , poinding and appryzing , tennents of clunie contra tarachtrie , slowand and glendoning . and it is the singularity of this right , that the infeftment of annualrent being once established , appryzing thereupon will be preferred to all interveening rights and diligences , even though they proceed upon posterior infeftments and annualrents . and though by the late act of parliament , appryzings within year and day , come in pari passu , there is an express exception of annualrents ; and therefore , an appryzing proceeding upon a personal obliegement and requisition , both for principal and annual , and within year and day of other appryzings , the appryzer was allowed to pass from his appryzing , as to the annualrents prior to the appryzing ; and these were preferred to all the appryzings , and his appryzing was brought in , pari passu , for the principal sum and annualrents after the appryzing , december . . campbel contra yea , an infeftment of annualrent being betwixt the first effectual appryzing , and the subsequent appryzings within year and day , was brought in , pari passu , with these appryzings , as to the whole right , as being in a matter dubious , upon a new statute , the annualrenter having rested thereupon , and not having appryzed for his principal sum ; which if he had done , he would clearly have come in , pari passu , february . . brown of colstoun contra edward nicolas . there is a case proposed by sir thomas hope , viz. if one having right to some years of an annualrent by liferent , or otherways should appryze for these years , and that appryzing expyre , whether that appryzing expired will carry the right of property , not only from him who constitute the annualrent , but from the fiar of the annualrent himself , so that the infeftment of annualrent should become extinct , which seems to be resolved affirmatively , because of the nature of the right ; for the infeftment of annualrent , being jus sed ignobilius , becomes extinct , if the annualrenter there upon do appryze the property , and be infeft : and therefore , whoever appryzeth for years of the annualrent , the infeftment thereof , unless it be taken away by satisfaction , or redemption , extinguisheth the infeftment of annualrent , without distinction , whether the appryzing be led for any years belonging to the fiar , liferenter , or any other : and whereas the difficulty seems to be , that the liferenter cannot prejudge the fiar of the annualrent , or appryze more from the fiar of the land than he had ; it is answered , the fiar needs not be prejudged , because he hath a virtual reversion , and might thereby redeem from the annualrenter and take the liferenters right : neither doth the appryzing exclude the annualrent it self , as to years posterior , by the tenor of the appryzing , but by the nature of the right constitute to that very end , that an apprising for any years of the annualrent is drawn back ad suam causam , viz. the original infeftment of the annualrent ; and so excludes all posterior infeftments : and therefore , extinguisheth not only these , but even the infeftment of annualrent it self ceaseth , by accession of the property , ut juris nobilioris ; but if the fiar of the annualrent were neglective in so dubious a case , it is like the lords would repone him , satisfying the liferenter . in the case of competition , the infeftment of annualrent it self will be preferred to the posterior rights , though no apprising followed , january . . sir james hamiltoun of brownhill contra wilson . infeftments of annualrents have the priviledge and preference , though they be made use of by way of competition , without apprising thereupon : yea , though requisition was made , and an apprising led upon the sum whereunto the annualrent was accessory , yet it was found , the appriser might , pro loco & tempore , pass from that apprising , and upon the annualrent it self be preferred , january . . robert graham contra john ross. . but as to apprising of moveables or rents , the lords use in competitions to give so much time to the first annualrenter , and so to the rest after each term , that they only may poind ; and so they decerned the first annualrenter to poind within twenty dayes of each term , and the second within the next twenty dayes , feb. . . ladies mouswall elder and younger , competing . the like allowing the first annualrenter fourty dayes after each term , july . . sir john aiton contra adam wat. but as to the apprising of the property , the first annualrenter may apprise when he pleaseth , and then is preferable to all others ; but the regulating of the poinding of moveables is in favour of the poor labourers . the like , june . . adamson contra lord balmerino , where it was found , that the annualrenter might affect any part of the ground in solidum , albeit now belonging to several heretors ; but so , as the heretor of the ground affected , behoved to have assignation to the decreet for obtaining relief . . annualrents long ago had no effect but poinding of the ground , and could not come in to hinder arresters of the duties for the proprietars debt , march . . gray contra graham ; but thereafter were ordained to be a sufficient title against all intromettors with the duties personally , march . . richard guthrie contra earl of galloway . annualrents were found lyable to publick burdens , proportional with the superplus rent belonging to the fiar , june . . david bruce contra james bruce . this annualrent was not for security of a stock . the like was found of a liferent annualrent , june . . margaret fleming contra james gillis . . annualrents , as to bygones , are moveable and so arrestable , and belong to executors , december . . ogilvie contra ogilvie : yet it will be more competent and suitable to pursue it personally against intrometters with the rents , or postessors , then by a real action of poinding the ground ; annualrents are supprest by wodset of the land , or other more noble right in the person of the annualrenter , unless that right were evicted . . an infeftment of annualrent redeemable , was found extinct by a renunciation registrat in the register of reversions , and that against a singular successor , though there was no resignation of the annualrent , january . . john mcclellan contra mushet . an annualrent was also found extinct , by the annualrenters intrometting with the rents of the lands , out of which the annualrent was payable equivalent to the principal sum , for security whereof the annualrent was constitute ; which intromission was sound probable by witnesses , though it was silver-rent , feb. . . wishart contra elizabeth arthur . and therefore , singnlar successors succeeding in annualrents , either by voluntary disposition , or by apprising or adjudication , cannot be secure by inspection of registers , as they may be for lands ; but they run the hazard of satisfaction of the principal sum for which the annualrent is granted , wherewith it falls in consequence : for , no provident man will buy an annualrent given for security of a principal sum , but either upon necessity , for satisfying a prior debt , or upon great advantage ; in both which cases , he should take his hazard , scire debet cum quo contrahit , as all purchasers of personal rights must do . pensions resemble annualrents , or the seuda ex camera or ex cavena , mentioned by the feudists ; for thereby , a yearly rent is constitute to be payed out of the constituents lands , generally or particularly : yet these pensions , not having infeftment , have but the nature of assignations , and so are not valid against singular successors . . except only ecclesiastick pensions , constitute by prelates , which are valid against their successors in office , but not unless they be cloathed with possession or decreets conform , in the constituents life , par. . cap. . and so a pension granted by a bishop with power to assign , was found valid to the assigney , after the first pensioners death , against the succeeding bishop , and to be no dilapidation , july . . minister of kirklistoun contra patrick whitelaw ; yea , though the pension bore a power to assign etiam in articulo mortis , december . . chalmers contra craigievar : but in this case , the pensioner granting assignation , reserving his own life-rent , or to take effect after his death , whereby both might at once have interest therein , the assignation was found null by exception , though having decreet conform , and thirty years possession . the like hope , assignation , abernethie contra lady drumlanerk . but now , by the act of par. . cap. . archbishops and bishops are disabled to grant pensions to affect their benefices , further then themselves have right to the benefice , but do not prejudge their successors in office. yet pensions granted by beneficed persons , are not only due during their life , but out of their annat after their death , february . . bairns of the bishop of galloway contra andrew couper . . pensions granted by secular persons , though they contain assignations to the duties of the lands specially , and have decreet conform , were found ineffectual against singular successors in the land , july . . urquhart contra the earl of caithness , december . . andrew clappertoun contra laird of ednem ; neither against the lady tercer of the constituent , march . . countess of dumfermling contra earl of dumsermling . a decreet conform being obtained against the granter of a pension , his tenants and chamberlains , is effectual against subsequent chamberlains , without new decreet or transference , yet must be transferred against the constituents heir and his chamberlain , though it would be valid , being an ecclesiastick pension , against his successor , december . . earl of carrict contra duke of lennox , spots . hic , alexander weyms contra chamberlain of the duke of lennox . a pension , bearing for love and special service done and to be done , was found effectual , though the pensioner removed and did not that service , his removal being necessary by transportation , march . . doctor strang contra lord couper . the like of a pension granted to an advocat , for services done and to be done , which was found valid during his life , though he left pleading , december . . mr. john alexander contra mr. roderick mcleod . the like of a pension , for service done and to be done , though the service was not done when not required : nor was it excluded by the pensioners pursuing processes at his own instance against the constituent , upon a probable ground , though the constituent was assoiled , june . . mr. william weir advocat contra the earl of callendar . . pensions granted by the king are declared not arrestable in the thesaurers hands by act of sederunt , june . . the reason thereof must be , because such are ordinarly alimentary , and alwayes for the kings special service , which would be impeded , by hindering payment of the pension . title xvi . liferents , where , of conjunctfees , terces , and liferents by the courtesie of scotland . . servitudes personal by the roman law. . servitudes personal by our custom . . clauses of conquest , of liferent , or fee of lands acquired during marriages , how far extended . . all liferents must be salva rei substantia . . liferenters are burdened with aliment of heirs . . liferents without infeftment are not effectual against singular successors . . the effect of assignations to liferents . . liferents are not prejudged by tacks or other deeds of the fiar being posterior . . what terms do belong to liferenters . . conjunctsees . . liferenters by conjunctsee have all the casualities of superiority . . terce . . services of terces . . kenning to terces . . the effect of terces . . the extent of terces . . exceptions against terces . . burdens of terces . . liferents by the courtesie of scotland . . publick burdens . from the feudal rights of property , we proceed to servitudes , burdening the 〈◊〉 ; these are either personal or real : personal servitudes are , whereby the property of one is subservient to the person of another : real servitude is , whereby a tenement is subservient to another tenement , and to persons ; but as , and while they have right to the tenement dominant , as thirleage , pasturage , ways , passages , &c. and the like . servitudes personal for term of life , are therefore called liferents , servitudes for an indefinite time are such , which either may or uses to be constitute for a longer or shorter time , such are pensions ecclesiastick , rentals and tacks , which , though they be in their nature but personal rights : yet by statute or custom , they have the effect of real rights , of which hereafter . teinds also must come in as servitudes , though they are accounted a distinct right . . the roman law divideth personal servitudes into usufruct , use , and habitation . usufruct is the power of disposal of the use and fruits , saving the substance of the thing , which if it be restrained to these persons , and their proper use , without making profite , or disponing to others it is called the use ; and because of some special consideration in the law of that use of houses , habitation is a distinct servitude from other uses . . all servitudes with us come under some of the kinds before named . personal servitudes are either constitute by the deeds of men , or by the law , which provideth a competent portion to either of the surviving spouses out of the lands and tenements of the other during the survivers life ; as if the wife survive , she hath the third of her husbands tenements : and if the husband survive , he hath the liferent of the wifes whole tenements , and that provisione legis alone . but other liferents constitute for surviving spouses , or otherways are provisione hominis : so may the terce or liferent by courtesie be provided , and some things altered from the course of law ; but oftner liferents are constitute by conjunctfee , and most ordinarly otherways , which therefore retain the common name of liferents appropriat thereto , and distinct from conjunctfees . . liferents are sometimes provided particularly , and sometimes generally for the whole , or such a share of the conquest , during the marriage , which though not fulfilled by the husband in his life , is effectual against his heirs , and is not accounted a fraudulent provision , though it be the whole conquest , even amongst merchants , yea it was found effectual for recovering the rents of the conquest lands without infeftment , against the husbands heir , in the case of the relict of johnstoun merchant in glasgow . and where a husband purchased lands in favours of his eldest son , being then an infant , and not to himself , yet his relict was found to have right to her liferent thereof , as being a fraudulent deed in prejudice of the obliegement of conquest , july . . countess of dumfermling contra the earl of dumfermling her son. but these provisions of conquest do not hinder the husband acquirer to denude himself wlthout fraud , for any onerous or just cause , as selling for a price , or disponing to children , whether it be the appearand heir by ordinary terms of contracts of marriage , to younger children , or to wives of subsequent marriages , june . . katharin mitchel contra the children of thomas litlejohn . and such a clause being of all sums acquired during a second marriage , was found to annul an universal legacie to the eldest son of the first marriage , but not to annul competent provisions to the bairns of the first marriage , june . . murrays contra murrays . the like , january . . mr. alexander gibson contra elizabeth thomson . yea , a clause providing the present stock and all the conquest to the bairns of the marriage ; whilks failing , the one half to the mans heirs , the other to the wifes heirs , was found to make the man fiar , and not to hinder him to provide his whole means , which were very great to his bairns of a subsequent marriage , there being no bairns surviving of the former marriage , december . and . . alexander anderson contra andrew bruce . but as to such clauses , conquest is only understood where the husband acquired more then he had the time of the clause , but not when he sold some lands and acquired others of no greater value , june . . earl of dumfermling contra earl of callender : yea a clause of conquest in a wifes contract of marriage , who was otherways sufficiently provided , was found to be with the burden of the annualrent of a sum , which the husband declared under his hand to be a part of the price of the lands acquired , remaining due to the seller , decem. . . lady kilbocho contra laird of kilbocho . . this is common to all kinds of liferents , and involved in the nature thereof , that they must be salva rei substantia , which by statute is especially extended to conjunctfiars and liferenters , that they must be countable , and find surety not to wast or destroy the biggings , orchards , woods , stanks , parks , meadows or dovecoats , but that they hold them in such like kind , as they receive them , par. . cap. . which is confirmed and declared to proceed upon twenty one days by sheriffs , bailies of burghs or regalities , under pain of confiscation of the liferent-right to the kings use , parliament . cap. . and though the narrative of the statute expresseth conjunctfiars and liferenters , giving caution as being most ordinary by provision of men ; yet the statutory part is general , at least may be extended to terces and liferents by the courtesie . so a liferenter was charged summarly to uphold the 〈◊〉 liferented , and to leave it in as good case as she found it , without precognition , how it was the time of her entry , march . . george foulis contra isobel allan . by act of parl. . cap. . anent ruinous tenements within burgh , which being cognosced by an in quest to be ruinous , as become or which may become within a short time uninhabitable , the same must be repaired , by the liferenter or the fiar may enter in possession , finding caution within the burgh to pay the liferenter the mail thereof , as the samine gave or might give the time of the precognition ; but this act was not found to derogat from the former acts , nor that precognition was requisit before finding caution , except in tenements within burgh , decayed before the liferenters entry , as was found in the foresaid case , george foulis contra isobel allan . neither was the liferenter freed from caution upon her offer to quite the possession to the heretor for paying of the rent , the tenement not being ruinous at her entry . . it is also common to liferents and conjunctfees , that the liferent-right is lyable with the superiour of ward-lands or his donatar , for an aliment to the heir , to be modified by the lords proportionally according to the quantity of the land in ward and liferent , by the said statute . cap. . vide tit. heirs § . . . liferents are either constitute by way of reservation , in infeftments of property , or otherways by a several infeftment , but it cannot become a real right , and be effectual against singular successours , without infeftment ; though most servitudes may be constitute by disposition and possession . . yea , though liferents being constitute by infeftment , may be conveyed by assignation , because there can be no subaltern or renewed infeftment of a liferent , which is only personal to the liferenter , and the right is incommunicable , yet the fruits and profits arising thence are communicable and assignable . . it is also common to liferents , that nothing done after their infeftment , by the constituent or his singular successor , can prejudge the liferenter : and so an appryzer from the husband was found lyable to the liferenter , for the true worth of the liferent-lands , and not according as he set them , though they were never set before , except the appryzer had set the lands wholly , or near to the worth , march . . lady huttonhall contra lairds of moristoun and touch. . a liferenters executors was found to have right to the mertimas term , though the liferenter died upon the mertimas day in the afternoon , february . . executors of the lady bruntoun contra heir of the bishop of glasgow . and they have right to the whole cropt and profite of the land laboured and sown by themselves , or which was in mansing and not set to tenents , though the liferenter died before mertimas , december . . william 〈◊〉 contra james nisbit . a liferenters executors was found to have right to the whole years rent of a miln liferented by her , she having survived martimas , and that miln rents were not due , de die in diem , but as land-rents , not as house mails , though the conventional terms of the miln rent was after martimas , viz. one term at candlemess after the separation , and the other at whitsonday thereafter , july . . guthry contra laird of mckerstoun . but a liferenter infeft in an annualrent of victual provided to be payed yearly betwixt zule and candlemess , her husband having died after martimas and before candlemess , she was found to have no share of her annualrent for that cropt , january . . katharine trotter lady craiglieth contra rochhead lady prestoungrange . . a conjunctfee or conjunct-infeftment , is that which is granted to more persons joyntly ; which if it be provided to them and their heirs simply , it maketh them and their heirs to have equal right , pro indiviso ; and they are all equally fiars . and after the death of any of them , their portions belong to their heirs ; but the liferent of the deceassing accresseth not to the survivers ; but when conjunct-infeftments are provided to husbands and wives , the longest liver of them two and their heirs : there the law presumes , that the heirs are the mans heirs ; and by that interpretation , the wife by the conjunctfee is but liferenter ; and generally heirs of man and wife in all things except moveable rights , are ever understood to be the mans heirs , propter eminentiam masculini sexus ; so was it found in an assignation to a reversion , granted to a man and his wife and their heirs , that thereby the mans heirs ( first these of the marriage , and next his other heirs whatsomever ) were understood , hope husband and wife , walter collestoun contra pitfoddels : yet though this be presumptio juris , it admits contrary more pregnant evidences , as a reversion granted to a man and wife and their heirs , found to constitute the wife fiar , because she was heretrix of the wodset lands , hope liferent , kincaid contra menzies of pitfoddels . but to prevent this question , the provision ordinarly is to the longest liver of them two and their heirs , whilks failing , to such particular heirs exprest ; whereby these are commonly esteemed fiars , whose heirs what some ever are substitute . and yet a sum provided to a man and his wife , and the heirs betwixt them , whilks failing , to divide betwixt the man and wifes heirs , was found not to constitute the wife fiar of the half , but only liferenter ; and the wifes heirs of line to be heirs of provision to the man , and that the sum was disposeable by him , and arrestable by his creditors , january . . graham contra park and gerdon . so strong is this presumption , that there is no more meaned to be granted to wives , but their liferent-right and no part of the fee , unless the provision bear expresly , a power to the wife to dispone , and if it be adjected at any time , during her life , the fee will remain in the man , and that power in the wife will rather be understood as a faculty , like to the power given to commissioners to dispone lands , then an act of property , unless that the provision bear , a power to the wife and her heirs to dispone ; but a conjunctfee to future spouses of conquest , during the marriage , in these terms , the one half thereof to be disponed upon as the wife shall think fit , being in a minut of contract , expressing no heirs , but being a short draught , the lady being of great quality , having about . merks yearly in liferent , beside money and moveables ; and the husband being a noblemans son , having gained an estate of . merks yearly , in the ware which he had lest ; the clause was found to be understood , and extended so , as to make both future spouses equal fiars , seeing the conquest was mainly to arise out of the wifes liferent , june . . earl of dumfermling contra earl of callender . if a conjunct-infeftment be granted to two or more , the longest liver of them , and express no heirs , but a liferent to them all , the same accresseth to the survivers ; or if it be a right of lands or annualrents to a man and his wife , the longest liver of them two , and to their son named and his heirs ; the man and his wife are both liferenters , and the son is fiar only , unless the right be for security of sums of money , and then the person named is but as heir substitute , the father is fiar , even though the son were infeft with the father and mother , january . . thomas bog contra sir thomas nicolson , july . . moor of anistoun , contra laird of lamingtoun . . the main difference betwixt conjunct-fees and other life-rents , is that the conjunct-fiar , though by interpretation liferenter only , and so may not alienat or waste ; yet by the nature of the right and custom , they have the benefit of all casualities befalling during their life , and may dispose thereof ; which will not only be effectual during their life , but simply for that individual casuality . so conjunct-fiars may receive and enter the heirs of vassals , and have the benefit of their ward , non-entry , liferent-escheat , and may grant gifts thereof effectually , even as to the time after their death . so also a conjunct-siar , infeft with her husband in lands cum sylvis , was found thereby to have right to make use of the woods for her and her tennants use , january . . hunter and others contra relict of gadgirth , vide title . § . liferenters have not these casualities of superiority ; yet a baron having disponed his barony , reserving his liferent , was thereby found to have right to receive the heirs of his vassals , but not singular successors , ianuary . . crawfurd contra laird of glaspen . and there is reason , that the fiar disponing with reservation to himself , whereby his own infeftment stands pro tanto , should have greater power then a liferent apart or by reservation , not being before infeft , conjunctfees though publick , as ordinarly they are ; and thereby , as to the superiour , the fee is full , and the casualities of ward and non-entry excluded : yet the heir may enter to the property , and compel the superiour to receive him . . terce is the third of the tenements , in which the husband died infeft , as of fee provided to his wife surviving by law or custom , though there be no provision or paction for that purpose . the original hereof , as hath been shown before amongst the interest of marriage , is from that obligation upon the husband to provide for his wife ; which therefore positive law hath determined to a third of his moveables , if there be children in the family , and if there be none , to a half : but in either case , she hath a third of his tenements . and though as craig observeth , by our ancient custom , terce extended only to a third of the tenements a husband had the time of the marriage ; yet since , it extends to a third of those he stands infeft in as of fee the time of his death ; and so , when he is denuded before his death , the terce is excluded . yea , a base infeftment without possession , granted by a husband to his creditor , was found to exclude his wife from a terce of that land , january . . bell of belford contra lady rutherford . this provision of law is more equitable and proportionable , then ordinarly are their provision by contract of the husband , who being carried with affection , doth oft-times provide his wife to the prejudice of their children , and ruine of their estate , which this terce keepeth alwayes proportionable , and maketh the wife sharer of the industry and fortune of the man , and therefore more careful over it ; and upon the contrary , giving out but small provisions to their wives at their marriage , when oft-times they do but begin to have estates , which they increase not according to the increase of their fortune ; but the law doth more fitly order the wifes provision to be increased or decreased , according to the condition of the man. . the terce taketh place ordinarly , where the husband died infeft as of fee ; and it hath no effect , till the widow take brieves out of the chancelery , directed to sheriffs or bailies to call an inquest of fifteen sworn men , and thereby to serve the brieve ; which hath two heads , the one , that the bearer was lawful wife to the defunct ; the other , that he died in fee of such tenemnts . this is a pleadable brieve , and hath no retour ; but service alone is sufficient enough to give the wife interest that other liferenters have . it was specially statute , that where the marriage was not questioned in the husbands life , and the widow was holden and repute his lawful wife in his time ; no exception in the contrary shall be sustained in the service of the brieve , but she shall be served and injoy the terce , till it be declared in a petitory judgement , that she was not lawful wife , par. . cap. . . the brieve being thus served , the sheriff or bailiff must also , if it be demanded , ken the relict to her terce , which is ordinarly done by the sun or the shade ; that is , whether the division shall begin at the east or the west , and so the division of the tenements proceed by aikers , two befalling to the heir , and one to the relict , wherein there ought to be marches set , and instruments taken thereupon , which is as a seasine ; but this division being most inconvenient , except the whole interest were used to be set in aikerdale , it is not exclusive of other divisions by the worth of the lands or the rent , so many rooms being designed for the tercer , the rest remaining for the fiar . this way of kenning would be valid , and much better ; but it is not necessary to divide , at serving the brieve , to constitute the terce ; for the service giveth sufficient title to the third of the mails and duties of every room , march . . relick of veatch of dawick contra . . but that thereby she cannot remove possessors is , because she brooketh the terce pro indiviso with the heir , till it be be kenned , or otherwayes divided ; and the terce being served , gives right not only to the years thereafter , but preceeding , since the husbands death , november . . tennants contra crawford and flemming : and so the tercer may pursue the heretor or other intromettor , for all by-gones of the third of the duty , not as they were at the husbands death , but as they were bettered by the fiar , feb. . . countess of dumfermling contra earl of dumfermling , and that without deduction of factor-fee , march . . inter eosdem . the tercer being served , hath interest to pursue for commission to cognosce pasturage lands what soums they may hold , that she may have the third soum , or else to divide , january . . contra mackenzie . the division of the terce from the two thirds , may be in the most convenient way , wherein all dwelling-houses , or kilns and barns , and other houses for service , will come in as they may be most conveniently divided . this is the most ordinary way of terces by service , as said is , when the husband died infeft in fee. . terce takes place , not only in lands , but also in annualrents , wherein the husband died infeft as of fee , novemb. . . tennants of easthouses contra hepburn ; but not to the terce of annualrents of bands , whereupon no infeftment followed , june . . elizabeth scrimzeour contra murrays . it is also extended to infeftments of teinds , feb. . . countess of dumfermling contra earl of dumfermling : but it is not extended to tenements or lands within burgh or holden burgage ; neither to superiority or feu-duties , or other casualities thereof ; nor to tacks , ibidem ; neither to patronage or advocation of kirks ; neither doth terce extend to reversions . if the fiar , whose land is lyable to a terce , die , and his wife have right to another terce , which is called the lesser terce , though the husband died infeft as of fee of the whole tenement , she hath not a third of the whole , but a third of these two thirds , which were unaffected with the greater terce , till the former tercers death , craig , lib. . dieges . . proposeth two cases , in which the relict will have a terce , though the husband died not infeft as of fee ; the first is , if the husband infeft his appearand heir in his estate , if there be no liferent provided to his wife by a contract ; in that case , the relict will have a terce , which is most just , albeit it will not proceed summarly by a brieve , which bears only warrand for a terce of the tenements in which the husband died infeft as of fee : but it may proceed by reduction or declarator , and would not only have effect against the appearand heir , but against any gratuitous disposition , reserving the husbands own liferent ; for such deeds would be found fraudulent , and contrary to the nature of the obligation of husbands to provide their wives , unless there remained tenements , out of which a reasonable terce might remain to the relict , according to her quality . the other case is , when a father , by his sons contract of marriage , is oblieged to infeft his son in fee in certain lands ; if the sons relict be no otherwayes provided , she may claim a terce of these lands , though the father did not perform his obliegement , which may be construed as fraudulent and in her prejudice . . terce is excluded by all wayes whereby the marriage was dissolved , upon adultery or desertion ; or by the death of either party , within year and day without children , or may be found null , of which formerly , amongst conjugal interests , tit. . and also , by whatsoever way the husband is sine frande divested , the terce is excluded : as by a crime inferring forefaulture or recognition by the husband or his superiour , though not declared before his death , or by the ward and non-entry of his immediat superiour . there was one decision observed by spotswood and hope , betwixt the relict of john cranstoun and crichtonn , that an apprising without infeftment , did exclude a relict from her terce : it were hard to sustain that in all cases , even though there were a charge against the superiour upon the apprising ; which as it would not exclude the superiour from the ward , non-entry or relief , so neither should it exclude a relict from her terce , unless she had a conjunct-fee or life-rent by consent , equivalent to a tertia rationabilis : and though our custom hath far deborded from the ancient design of terces , whereby a reasonable terce was appointed ; and if any voluntary liferent were granted , craig observes , that it was ever understood to be no more , but for clearing and securing the tercer against the trouble and difficulty of recovering possession by a service , and therefore was alwayes retrenched unto the terce . yet now , not only real voluntary provisions are sustained , though of the husbands whole estate and conquest , albeit granted in aestu amoris , with this temperament only , that if the heir have no other estate , the liferenter must intertain and educat him , according to his quality , by act of parliament , which is more extensive then a simple aliment ; but she is also lyable , super jure naturae , to aliment her other children , if they have no provisions . but custom hath so far proceeded , as not only to allow voluntary provisions , how great soever , but therewith to add a terce of any other distinct tenement , unless the voluntary liferent were accepted in satisfaction of the terce , which indeed were reasonable in many cases . the voluntary liferent being oftimes small and suitable to the estate the parties have when they marry , but cannot make a rationabilis tertia ; if by conquest , their estate should grow great , neither is it reasonable , that though the voluntary provision be never so great , that a terce should be given , though litle remained to the heir , only because by ignorance or negligence , the clause in satisfaction were not adjected : which satisfaction may not only be proved by write , but by presumption , from the design of parties , in the contracts of marriage , which are uberrimae fidei ; for suppose , which is ordinary enough , that a liferent of lands are provided by the contract of marriage ; yet some lands are not mentioned , but there is a clause adjected for the liferent of the whole conquest , were it rationabilis terlia , to give the wife a third of that which is omitted , though she had a particular liferent of more , and the whole conquest , though never so considerable ; yea , it came lately to be 〈◊〉 , whether a liferenter infeft in an annualrent , out of her husbands estate , consisting of one tenement , lying contigue , the annualrent being two thirds of the rent thereof , because it bore not , in satisfaction of a terce . the relict did also claim a terce out of that same one tenement , which is yet sub judice . but so far as i can understand by former decisions , it hath not yet been determined , whether relicts should have a reasonable terce , according to the terms of the ancient law , inducing terces : or whether she should have a terce proportionable , or suiteable , or not ; though she be already suitably provided , if she have not expresly accepted her former provision , in satisfaction of her terce : which terce , is most favourable when suitable ; and therefore , takes place in the two cases before mentioned , even beyond the letter of the law ; and therefore , if it were unproportionable , to the quality of the husband and wife , who might have a great estate in money , and little land , a voluntary provision out of any tenement , should not exclude a terce , out of the remanent of the same tenement , or of any other tenement , unless the relict were sufficiently provided before . there is one interloquter betwixt jean crightoun and kirkhouse her son , wherein it was alledged , that she was sufficiently provided , to more then a terce of her husbands estate , which was repelled ; but the case was , in possessorio , where the relict was already served , and kenned to a terce , and was pursuing the tennents ; so that the service and kenning , being a standing sentence , doth not determine what might be done , in petiterio ; neither was that allegeance proponed , and offered to be proven , but only alledged informative ; whereas the defence proponed was , that the relicts provision was but a minut of contract , bearing , to be extended with all clauses requisite , whereof there was a process of extension depending , including the acceptance , in satisfaction of the terce , as being ordinary ; but it was replyed , that that clause was omitted in the full contract already extended : but now by the late act of par. . cap. . there is no place for a terce , where there is a provision for the wife of liferent , unless a terce be expresly reserved . craig proposeth another case , whether the 〈◊〉 would have a terce of lands competent in fee to her husband , and so possest by him , though by fraud or neglegence , he never infeft himself , which he says is the opinion of litletoun , and it is not without much ground , though it hath not come to be decided with us , voluntary liferents in satisfaction being so ordinary ; for though the appearand heir not entering , cannot burden the fee with his debt , yet his jus apparentiae , gives him or his executors , right to the fruits during all his life , whereunto it would be suitable enough , that though his voluntary provisions to his wife could not affect the fee ; yet the legal provision of a reasonable terce might . by the custome of england relicts loose their terces , by falling in publick and atrocious crimes , as treason , murder , witchcraft , although they be restored by the king , by way of grace , because thereby the memory of their husbands , and fame of their children are disgraced ; i know no such point to have been drawn in question with us . craig in the forecited place holds , that if the fiar transact for his own or his superiours forefaulture , or recognition , or obtain a gift thereof , it should accress to the tercer , whose provision is onerous , importing warrandice ; and therefore , might be effectuall against the fiar , if he represent the husband ; and in all distresses , relief doth import what the party distressed truly payed out . a terce of wodset lands , wherein the husband died infeft , was not found elieded , because the husband required , or charged for the money , not being denuded before his death , feb. . . veich contra veich of dawick . but the wifes third continues as to the third of the annualrent of the money in lieu of the lands redeemed by the heir after his predecessors death . terce is not excluded by ward , non entry or liferent-escheat of the husband , as hath been more fully shown before , title superiority . . terce is burdened proportianally by all , debita fundi , affecting the whole tenement as annualrent , thirlage , pasturage , but with no other debts of the defunct , being personal , though they be heretable and have provision of infeftment . . liferent by the courtesie or curiliaty of scotland , is the liferent competent to the husband of the wifes lands and hereditaments : it is introduced by our common law , which is our most ancient custom , wheroef no beginning is known in the same way , as the terce of the surviving wife , whereby without any paction or provision , 〈◊〉 enjoys the third of her deceassed husbands heretable rights , wherein he 〈◊〉 invested as of fee , during her life ; so the husband liferents the whole lands and hereditaments of the wife , wherein she died infeft in fee , and that without any service or kenning , as in terces , but summarly , by vertue of his having been husband to the defunct ; neither is there any difference , whether the defunct wife had a prior husband or not ; or whether her hereditament be ward , blensh , feu , or burgage . the original of this liferent by the courtesie , as craig observeth , lib. . dieges . . is from the rescript of the emperour constantine , whereby the father had the usufruct of the heretage of his children , befalling to them as heirs to their mother ; and therefore , the courtesie takes no place but where there were children of the marriage , one or more , which attained that maturity as to be heard cry or weep , ; for then the law regardeth not how long the children live , or whether they do survive their mother , but hoc ipso , that they are born at maturity , they are heirs appearand of the fee ; and the liferent is established in their father : in this the courtesie of husbands differs from the terce of wives ; for the wife hath her terce , if either the marriage continue undissolved year and day , or though it continue not so long , if a child was born of the marriage , heard cry and weep , though the child had been begotten before the marriage , yea , though it had been born before the marriage , being legitimat by the subsequent marriage , how short soever it endured the wife should have her terce . but the courtesie takes no place , unless a ripe child beborn , though the marriage should continue for many years , so that the being of children procreat and born to maturity , is the chief motive introductory of this law. skeen in his title , de verborum significatione , upon the word curialitas , limiteth the courtesie to the lands or hereditament , into which wives succeed as heirs to their predecessors , whether before , or during the marriage , which craig in the foresaid place doth likewise follow , and doth exclude the husband from the liferent of the wifes land ; to which the wife had right by any contract , as titulo emptionis , which will not exclude the husband , where the wises predecessor infefts her , per praeceptionem haereditatis . if a father should infeft his daughter , reserving his own liferent , with power ro dispose , she is not thereby heir active , nor is that estate accompted heretage but conquest ; yet she is heir passive , and there is more reason that the husband should enjoy his liferent of that estate , then if his wife had been therein heir of provision or tailzie , whereby failing her and her issue , another branch , not nearest of blood to her , might readily succeed , so that if her children were dead before her self , her heirs of tailzie would have much more reason to question her husbands liferent by the courtesie , then his own children as heirs of line would have to contravert his liferent of the estate , wherein she was infeft by her father or any of her predecessors , to which she was appearand heir ; but there have been few debates or decisions , or limitations thereof , which would clear this and other points thereanent . the law hath well fixed the maturity of the children by their crying or weeping , and hath not left it to the conjecture of witnesses , whether the child was ripe or not , both as to the courtesie , terce and dissolution of the marriage within the year ; in all which cases , the law alloweth women witnesses , as being necessary in the case of the death of the children , at the time of their birth . liferenters were found free of the reparation of ministers manses , by the act of parliament . cap. ordaining heretors to build or repair manses to the value of . pounds ; whereof no share of relief was found due by the liferenters , they not being exprest , november . . minister of contra laird and lady beanstoun : yet if the whole estate were liferented by conjunctfee , the conjunctfiar might be liable as fiar in that case , when the heretor had no profite of the land ; and if the whole were affected with a separat liferent , the effect would be the same , seing what the heretor would be lyable to , would diminish his aliment , which behoved to be made up by the liferenter . liferent by the courtesie hath the same extensions and limitations sa terces , it affects all the wifes lands , not acquired by a singular title ; it is not excluded by the ward , but it is excluded during the non-entry , or by liferent-escheat ; and also by the ward of the superiour , or the forefaulture or recognition , either of the superiour or wife , it is burdened with all real burdens by infeftment or tack , and with the aliment of the wifes heir , if he have not aliunde ; it is also excluded by the dissolution of the marriage within year and day , by divorce , or by the husbands desertion of the wife , though divorce followed not : or by his adultery , or other atrocious crimes . . amongst personal servitudes may be numbered publick burdens , imposed by the king and parliament for publick use , such as taxations , which by the acts imposing them , are declared real , affecting the ground , and that thereupon the ground may be poinded ; and so consequently do affect singular successors : the extraordinary burdens of mentainance ; and sess imposed by the parliament , during the troubles , had not that clause therein of poinding the ground , and so were not found debita fundi , but debita fructuum , nor do they affect singular successors , july . . grahame of hiltoun contra the heretors of clackmannan . title xvii . servitudes real . . requisites to constitute real servitudes by consent . . how prescription constituteth servitude . . how far servitudes are effectual against the superiour . . extinction of servitudes . . kinds of servitudes . . servitudes of support . stillicides . . sinks . . servitudes of prospect or light. . wayes . . watering . . watergang . . feualling . . pasturage . . thirleage . . several ways of constituting thirlage . . several cases in which thirlage is not constitute . . the effect and extent of thirlage . . the import of several clauses of thirlage . . invecta & illata , or tholing fire and water . . sequels . . miln service . . priviledge of milns . . how thirlage becomes extinct . . in multure , seed , or horse corn , are to be deduced , but no other expence of labouring . . thirlage constitute by a vassal , not effectual against the superiour . . deductions for insufficiency of the miln , breaking down of the damn or frost . servitudes are distinguished in real and personal , though neither of them be personal rights ; yet these servitudes whereby one tenement is subservient to another tenement , and to persons only as having right to , and for the use of that tenement , are called real servitudes , as not being subservient directly to persons , but to things : and the other are called personal ; because thereby the tenement is subservient directly to persons , and not with respect to any other thing , as liferents , &c. before we come to the particular kinds of these real servitudes , it will be fit to enquire how such servitudes are constitute ; and next how they are destitute and ceass . . as to the first , these servitudes require no infeftment , though they may be constitute by infeftments , yet there is no necessity of infeftment , to their constitution . secondly , real servitudes cannot be constitute by any personal right , as by contract , paction , testament or legacy , neither by disposition or assignation alone ; the reason is , because they are real rights , and cannot be constitute by any personal right , which though they be oftimes the remote cause of real rights , yet there is more requisite to their constitution ; and therefore , though such personal rights may be sufficient against the granters thereof , by a personal objection , whereby they cannot come against their own deed , yet they are not sufficient against singular successors , neither do they affect the ground . thirdly , all real servitudes are constitute by possession or use ; for things corporeal are said only to be possest ; therefore incorporeal rights , as servitudes have rather use then possession to consumate them , which though it be the last requisite to accomplish servitudes , yet is not sufficient alone , but must have another title , either by the express consent of the proprietar , or by prescription ; there is no difference in what way the consent be adhibite , so it be in write ; and the obliegement to grant any servitude with possession , is equivalent to the formal disposition or grant thereof , as it is in the most of these rights , which do essentially require nothing else , but consent alone , or consent with possession , and not any other solemnity , as obliegements to grant assignations , discharges , renunciations , are equivalent to these rights themselves , when formally made . . the civilians debate much , whether servitudes can be introduced by prescription , and whether in that case there be requisite a title and the proprietars knowledge , wherein we need not insist , seing our prescription being only by statute upon the course of fourty years , in most cases presumeth both a title and knowledge , but theirs being upon ten years , against those who are present , may require more , yet many , even of the learnedest of them , account prescription sufficient , without title , or any other then presumed knowledge . with us , the servitude of a way to the kirk , was not found constitute by possession thirty years , but by immemorial possession , going and coming that way uninterrupted , without any write ; for here the way was claimed at the nearest to the kirk ; whether the desenders lands were under cropt or not : for though a way to the kirk be due to all parties in the paroch , without consent or prescription , yet it must be with the least detriment to the interjacent lands , and so cannot always be the nearest way , but must go about corns ; and though thirty or fourty years alternative , was not sustained to constitute a way thorow lands , even under 〈◊〉 yet fourty years is equivalent , and always 〈◊〉 to immemorial possession ; in the same case , 〈◊〉 gtoun observes , that a convement way to the kirk , without going through corns , was sustained without prescription ; and the like would be sustained for passage to mercat towns , or 〈◊〉 ports . a servitude of laying over a miln damn upon another heretors land , was found constitute by possession fourty years , whereby the heretor of the miln was found to have right ; that when the water did wash away the ground from the end of the damn , to lengthen the same upon the servient tenement , so that it might be made effectual with the least detriment , and that he was not lyable for any damage by washing away the ground of the servient tenement , by occasion of his damn , july . . laird of gairletoun contra laird of smeatoun . june . . gilbert neilson contra sheriff of galloway . it must be adverted , that when such servitudes are said to be constitute by sole prescription , without write , it is to be understood , without write from the proprietar of the servient tenement ; for ordinarly there is this much title in write for these servitudes , that the party having right thereto is infeft in the tenement with the pertinents , under which servitudes are comprehended . or with common 〈◊〉 trage , by which he hath not only such pasturage as he hath been long in possession of , upon the lands of his superiour or author , but fourty years possession therewith , is sufficient against any other , who can be said in no case to have done any deed for the constituting of the servitude ; and it was so found in the case of the town of pearth , concerning the isle of sleiples . but this long possession is not estimat by deeds done by the proprietar of the servient tenement , as he who brings his grain to another mans 〈◊〉 , for 〈◊〉 so many years ; these deeds of his do not constitute a thirleage upon his lands , unless he suffer the proprietar or tennent of the miln , to cause him or his tennents either to bring their grain by process , or otherways : and he who opens a window in his dyke or wall , whereby his neighbour hath a prospect , doth not thereby put himself under a servitude : but if he suffer his neighbour to break a window in his wall , and enjoy it till prescription be run , his suffering introduceth that servitude . . as to these who can impose servitude , when they are constitute by express consent . they cannot be constitute without consent of the 〈◊〉 and if the superiour consent not , they will not be effectual against him , if the 〈◊〉 be open and return to him by right of superiority , for a time , or for 〈◊〉 . liferenters cannot constitute a servitude , to have a real right against singular successors , or beyond the endurance of that liferent or wodset ; much less can tennents , yet both can begin or continue to make up prescription . but when servitudes are constitute by prescription , the knowledge even of the superiour is presumed , who though he had not the full right , yet might have interrupted . . servitudes are extinct by the proprietar of the tenement dominant his renunciation , or contrary consent in write , without any other solemnity ; and there needs here no other possession , then that possession the proprietar of the servient tenement hath of his tenement , whereby he may make free use thereof ; for he who possesseth naturally or corporeally , possesseth to all effects and uses , unless there be impediment by any opposite standing right . servitudes are also extinct by prescription of liberty ; for as servitudes by prescription take away the liberty or free use of the tenement servient : so liberty is recovered in the same way ; for though in the short prescription in the civil law , simple forbearance of the servitude , will not import prescription , unless some contrary acts that may hinder the use of it , were done by the proprietar of the servient tenement : yet in our long prescription of fourty years simple forbearance of the use may suffice , as presuming the will of the party to be , to relinquish the servitude , and to suffer liberty to be recovered ; and when the servitude is constitute by write , the same will be the effect , seing the write and obliegement prescrive not being used , or acclaimed fourty years . . to descend now to the kindes of servitudes , there may be as many as there are wayes , whereby the liberty of a house or tenement may be restrained in favours of another tenement ; for liberty and servitude are contraries , and the abatement of the one , is the beeing or inlargement of the other . servitudes , in respect of the subject matter , are either in reference to city-tenements , such as houses for habitation , not for the use of agriculture or pasturage , whether they be in towns or villages , or not : and in countrey-tenements , such as fields and grounds , and all houses for the use thereof , as stables , barns , byers , kilns , wheresoever situate in town or countrey . servitudes upon city-tenements are very many , whereof we shall point at the prime ; they are either positive or negative . a positive servitude is that , whereby the servient tenement is not only restrained of its liberty , but is constrained to suffer some things to be done to the behove of the dominant tenement , contrary to its liberty . negative servitude is , whereby the freedom of the servient tenement is only restrained . . the prime positive servitude of city-tenements is , the servitude of support , whereby the servient tenement is lyable to bear any burden for the use of the dominant ; and that either by laying on the weight upon its walls , or other parts thereof ; or by putting in jeests or other means of support in the walls of the same , which the romans called servitutem tigni immissi ; or otherwayes , this servitude may be , by bearing the pressure or putt of any building for the use of the dominant tenement , as of a vault or pend , or the like : such is the servitude of superstructure , whereby any building may be built upon the servient tenement ; like unto which is now frequent in edinburgh , when one tenement is built above another at divers times ; or divers stories or contignations of the same tenement , are bought by divers proprietars , and thereby the upper becomes a distinct tenement , and hath a servitude upon the lower tenements , whereby they must support it . the question useth to be moved here , whether the owner of the servient tenement be oblieged to uphold or repair his tenement , that it may be sufficient to support the dominant tenement . there are opinions of the learned and probable reasons upon both parts ; for the affirmative maketh the common rule , that when any thing is granted , all things are understood to be granted therewith that are necessary thereto : so he who constituteth upon his tenement , a servitude of support , must make it effectual . and for the negative , servitudes are odious , and not to be extended beyond what is expresly granted or accustomed , to which we incline ; and therefore , it would be adverted how the servitude is constitute , that if it appear , the constituent hath granted this servitude , so as to uphold it ; or if by custom , he hath been made to uphold it , not upon the account of his own tenement , but of the dominant , he must so continue ; and it is not only a personal obligation , but a part of the servitude passing with the servient tenement , even to singular successors : but if it appear not so constitute , it will import no more then a tolerance , to lay on or impute the burden of the dominant tenement upon the servient , which therefore the owner of the servient neither can hinder nor prejudge ; but he is not oblieged to do any positive deed , by reparation of his own tenement , to that purpose , but the owner of the dominant tenement hath right to repair it for his own use , by reason of his servitude , and the owner of the servient tenement cannot hinder it ; yet in what he thereby advantageth the servient tenement , he hath upon the owner thereof the obligation of recompence , in quantum lucratus . if it be objected , that within burgh , the owners of the inferiour and supporting tenements are oblieged to repair for the behove of the superiour tenements , the owners whereof may legally inforce reparation ; yet , it inferreth not this to be the nature of the servitude , but a positive statute or custom of the burgh for the publick good thereof , which is concerned in upholding tenements . but mainly , the reason of it is , because when divers owners have parts of the same tenement , it cannot be said to be a perfect division , because the roof remaineth roof to both , and the ground supporteth both ; and therefore , by the nature of communion , there are mutual obligations upon both , viz. that the owner of the lower tenement must uphold his tenement as a foundation to the upper , and the owner of the upper tenement must uphold his tenement , as a roof and cover to the lower : both which , though they have the resemblance of servitudes , and pass with the thing to singular successors ; yet they are rather personal obligations , such as pass in communion even to singular successors of either party . . the next positive city-servitude is , of stillicides or sinks : stillicide is the easing-drop which falleth off any house or building , or the rain turned off a tenement either by dropping or by spout ; concerning which , consider what may be done freely without any servitude ; for thereby it will easily appear , what servitudes are competent herein . the main question is , whether the owner of any ground may build houses or buildings closs to the march of his own ground , whereby his easing-drop will fall upon his neighbours ground , or if by spout , he may make the rain that falls upon his own tenement , run over upon his neighbours . and though it may appear from that common rule , cujus est solum , ejus est usque ad coelum , that thereby the owner may build upon any part of his own ground what he will , even though it be to the detriment of his neighbours prospect or light : yet , no man may dispose so upon his own ground , as to put any positive prejudice , hurt or damnage upon his neighbours ; as if he should alter the course of any river or water , running within his own ground , so that it cause an alteration thereof in his neighbours ground , or by damming of the water , make it run upon his neighbours : and therefore , he may not so build upon his own ground , as by gathering the water from its natural way , he should make it fall together upon his neighbours ground ; otherwayes , any neighbour might take away both the profit and the pleasure of his neighbours tenement , or closs , by spouts or kennels carrying in the rain water thereupon in abundance . and albeit it be not so palpable in the easing-drop as in spouts , what the neighbours detriment may be , yet the very roof of the house is a considerable gathering of the water : and therefore , every man ought so to build , as that the drops of the building may fall upon his own ground , which commonly in neighbourhood is counted two foot and a half within the marches , according to the ancient roman custom , auctore marciano . if it were not so , but that the first builder might build to his march , no question the second might do the like ; and so there should be no way to convey the drop , without much detriment to both . and though either might , by a spout , keep the water from falling upon his neighbours ground ; yet , that spout might fail , and at least his neighbonr be put to the trouble of an action , to cause him keep it right , which his neighbour cannot inforce upon him . but , as the romans account it as a delinquence , & damnum infectum , as a damage like to befall , though not befalling when any thing was built , to hang over the high way , or whereby a neighbour might have probable damage : and therefore , either caused the doer to demolish it , or to find caution not to damnifie his neighbour : so from that same ground of equity and expediencie , it ought to be in this case . there is an exception here of towns and villages , which for common conveniency , do allow houses to be built closs together , which is tacitly imported in the incorporation of towns , or union of villages , in which , the custom of the place must be the rule . . what hath been said of stillicides , holdeth more apparently in sinks , either for conveying of water-filth , or any thing else , upon or thorow the neighbours tenements , which cannot be done , unless there be a servitude thereupon either by consent or prescription . . negative urbane servitudes , do chiefly concern the light view or prospect of tenements ; for the owner of every ground may build thereupon at his displeasure , though thereby he hinder the view and prospect from his neighbours tenement , or the coming of the sun-beams or light thereto , which being but in relation to the extrinsick benefite of that which is not in , but without the tenement , is not accounted a positive damage , from which the owners of neighbouring tenements must abstain , as in the case of stillicides and sinks , and so much the rather ; for common utility would be highly impaired , if the first builder might hinder his neighbour to build upon his own ground , upon pretence that thereby his light or prospect were hindred ; so that it is free for the owner to build what he will , though thereby he darken his neighbours tenement . for helping the inconveniency that may ensue by this liberty of building , two servitudes use to be introduced , both restraining the owners liberty ; the one is , by giving light or prospect to the dominant tenement , whereby the building upon the servient tenement may neither be lifted higher , nor any building where there are none , or any window or in-let , whereby there may be prospect from the dominant tenement to , or through the servient , may be marred or altered : the other is , whereby the prospect or view of the servient tenement is restrained , in that there may be no building thereupon , or windows opened therein , which may look to the house , closs or garden of the dominant tenement . these servitudes of light or prospect cannot be introduced by the injoyment and use thereof , though time out of minde : but there must be either consent or prescription , by hindering the owner of the servient tenement to use his freedom ; for the first builder , though he have light or view for an hundred years through his neighbours ground , doth not thereby nut a servitude upon his neighbour ; but if he have been in use to hinder his neighbour to take away that prospect in any lawful way , by reiterat acts during the time of prescription . and therefore , though two purchasers bought houses from the same owner , neither of them was found to be astricted not to build as high as they pleased , albeit to the prejudice of the light and view of the other , hope servitudes , somervel contra somervel . the predial or countrey servitudes , whereby one ground or field is subservient to another , may be as manifold as the free use of the one may be restrained or impaired , for the profite or pleasure of the other ; the chief of which in use with us are wayes , watering , watergangs , fewelling , pasturage , thirlage . . wayes are a part of the reservation from property , and the necessary vestige of the ancient community of the earth : of which before , tit. . § . and , which are understood as the common pertinents of all grounds , free ish and entry are implyed in the very right of property , though not exprest : but that doth not infer wayes or passages from every part of the dominant ground , thorow every part of the servient , which would make both unprofitable , but it must be in the way , lest hurtful to either . and now by long custom it is every where determined , and can be no further claimed , then according to ancient custom : and it is a necessary effect of property , rather then a servitude , seing it is mutual and equal to either ground , whereof the one cannot be called dominant and the other servient , untill custom or consent have so determined , that the wayes which are constitute are more profitable to one tenement , and more burdensom to another , whereby this becometh the servient , and that the dominant . wayes are distinguished by the romans , according to the measure or burdensomness of them in three kindes : the first and least is , a road for a man to walk or ride by , which they call iter ; the second called actus , is a way for carts ; the third which retaineth the common name , is , whereby droves may pass . of these , the greater comprehends the lesser ; our custom sticketh not to this distinction , but measureth the way according to the end for which it was constitute , and by the use for which it was introduced , as having only a foot-road , or only a way for leading of loads upon horse-back , or a way for leading of carts , or a way for driving of cattel ; it is observed accordingly . there is another distinction of ways amongst the romans ; and with us , in publick and private ways ; publick ways are these which are constitute for publick use , and which go from one publick place to another , as from one burgh to another ; or from a burgh to a publick port ; this is called a a high-way , and by the romans , an imperial or pretorian way : and with us , the kings high-way , for preservation whereof , there are express statutes , parliament . cap. . par. . cap. . and this is patent to all the leidges , without respect to any land , yea and to all strangers having freedom of traffick . privat ways are these which are constitute by privat parties , for private use , whereof both are , or at least one end is to a private place , and is a proper servitude to the use of that place for which it is constitute ; so a way , the one end whereof is at a publick place ; may be a privat way , if the other end thereof be from , or for the use of a private place ; as a way from a privat place to a city or church , which doth not fall in to any publick way ; for in so far it remaineth private , and cannot be made use of , but for the behove of the place or ground from which it comes ; but it is not the largeness or latitude of the way , that makes a publick or private way : for a private way may be as large as a publick . private ways are constitute as other servitudes by prescription , by going and coming that way uninterrupted , time out of minde , or fourty years without write , or any other right . private parties may repair these ways becoming difficult ; so an heretor having a way to the kirk , and to a royal burgh , at a foord where there was an old bridge , was found ( the foord becoming difficult ) to have right to rebuild the bridge , though the one end of it was but upon his land , and the other end upon his neighbours who withstood it , nicol. de servitudibus , sir james cleiland contra cleiland . . watering is a servitude of taking water , proper to one ground for the use of another , whether it be for the cattel of the dominant ground , which is most ordinary , or for other uses thereof , and it doth ordinarly carry , a way for these cattel to come to that water thorow the servient ground ; but if it be only a way to publick water in rivers or publick lochs , it differeth nothing from the servitude of a way , unless with the way , there be also the making use of the private water in the fountains , ponds , or other places proper to the servient ground . . a watergang is a servitude , of conveying water thorow the servient ground , for the use of the dominant ; and if the water be proper , and belong to the servient ground , the servitude is the greater , but hath no different name ; such are the aquaeducts to milns and other uses ; for without such a servitude , water may not be altered or diverted from its course , as was found , where the water-course was the march betwixt the heretors , that the one could not change its old channel ( though it returned thereto again ) without consent of the other , though he alledged no prejudice , but the want of the pleasure of the water , and fishing of trouts , and that thereafter he might make use of it upon his side , june . . ballantine contra cranstoun . it was also found , that an heretor might not divert the water from its own course upon his own ground , to the prejudice of others having the right of fishing therein , hope , de actionibus in factum , bairdie contra stonehouse . . feweling is a servitude of suffering fewel to be taken from the servient ground for the use of the dominant and inhabitants thereof . and it is ordinarly in peats , turffs and heather ; and it doth necessarly import fields to win the feuel upon , and a way to bring it away , though these be not exprest . this servitude is sometimes constitute indefinitely upon a whole moss or muire , and sometimes upon a particular place thereof , and accordingly it is to be regulate by the consent or custom which did constitute it . the like is in the way for carrying the feuel , which sometimes is a cart-way , sometimes only a load-way . feweling is presumed to be comprehended under pasturage , though not exprest ; as the minor servitudes are involved in the major , yet this presumption is taken off by contrary custom , or express paction , for they are not inseparable , asiter & actus , are under via , there being no end nor interest to hinder a man to go or ride , where a cart or drove doth pass ; but where common pasturage is constitute , it is a several and separable interest to break the ground for fewel , feal or divet , which in so far exclude the other party , and appropriats that part of the grassto the feweler ; and so it was found , that a servitude of pasturage introduced by fourty years peaceable possession of the pasturage , was not to be extended to feal and divet , seing the acquirer was interrupted in these , february . . laird of hayning contra town of selkirk . and where the servitude was only constitute for feal , divet , clay and stone , in a large muir indefinitely , it was not found to hinder the proprietar to rive out a part of the muire , leaving enough that might serve that servitude for ever unplewed , and with condition , that if that sufficed not , more of the muire should be left lee again , wherein respect was had to the publick utility of making a large muire to be profitable , june . . john watson contra feuers of dunkennan . the like was found in a servitude of fewelling upon a muire of vast bounds , that it did not hinder the proprietar to plow : but the most convenient places for fewelling were appointed to be laid aside , as they were adjacent to the dominant tenements , so that they might be secure of perpetual feweling , which the proprietar might never plow , january . . earl of southesk contra melgunt and others . but in all these by the nature of the servitude , they should not be extended further then for the use of the dominant ground , and so not applicable by the heretor of the dominant ground , to any other not inhabiting the dominant field ; yet if custom and prescription hath been to the contrary , it over-rules all ; and so it was found , that an heretor or his tennents , having right to a common muire , not only might win fewel there for his own use , but sell it to others , june . , moniemusk contra pitfoddels . . pasturage is a servitude , whereby the grass of the ground servient , is applyed to the use of the ground dominant , and this sometimes reacheth to the full benefite of the grass ; so that the proprietar hath no share thereof , but the benefite of the tillage and other pertinents beside the grass , whereby he may till when he pleaseth , or open the ground for other effects of property , as to win coal or stone , unless by consent or custom it be otherways regular ; but so far as remains grass , belongs wholly to the other . but most ordinarly pasturage is in common , either to the proprietar and him that hath the servitude : or to many having acquired the servitnde promiscuously , though with exclusion of the proprietar from grassing ; and that again is either for an indefinite number of sums , or definitly for a certain number exprest . common pasturage is ordinarly constitute by the charter of the dominant ground , expressing the clause ( with common pasturage ) which , when general , hath no other effect then the common clauses of charters , to give the right of any pasturage belonging to the fee ( if any be ) but if it be cled with immemorial or fourty years possession , by the act of prescription , it carrieth unquestionably the right of pasturage , upon any ground belonging to the superiour , and upon which he might , the time of the charter , have constitute a pasturage : yet it is more dubious , whether long possession can introduce pasturage upon ground not belonging to the superiour , granter of the charter ; and it hath been found that it hath been so constitute ; yea though the clause of common pasturage be not in the charter , but only the land disponed with parts and pertinents , with long possession , spots . servitudes , knockdolian contra tennents of partick . the like was formerly found in the case of the town of pearth anent the isle of sleiples . pasturage may also be constitute by a contract cled with possession , without any seasine , which is effectual , even against singular successours , jan. . . turnbul contra laird of blanernie . pasturage being constitute in reference to the dominant ground , though it be indefinite and promiscuous , must be regulate and proportionat according to the use of the several dominant grounds , having right thereto proportional to the rent thereof , or the goods it may hold , and fodder in winter . thus a comontie was ordained , to be visited and soumed , and proportionat to every room , having priviledge therein , nicol. de communi , the laird of sessnock contra nimnto , absent . and though the pasturage hath been never so long promiscuously used , without any determinat soums , but that all have put to it what they pleased , that cannot be constitute by prescription , as a right being contrary to the very nature and substance of the servitude , whereby the pasturage would be destroyed and unprofitable to all , if not regulable and restrainable to what it might hold , and that by proportion ; for though some have been in use to put more goods , and some fewer ; yet unless the quantities had been determinat and fixed , others could not be excluded from their proportion , but such as by fourty years forbearance , are wholly excluded . it is accustomed in some places , to regulate common pasturage by souming and rouming , which is the determining of the several soums it may hold by particular proportion to every room of the dominant tenement , but none of the parties interressed can compel the rest to divide , seing it would be frequently to the disadvantage of severals of the parties interressed , as when common pasturage is in a common muire , inclosed with a dyke , and so needeth none , at least but one herd for them all , which if it were divided , of times the several proportions of most interressed , could not be worth a several hird , especially when the property remains in another , though burdened with this servitude , even though the proprietar retain a share in the common pasturage , yet he alone is proprietar ; and if any stone or coal were found there , it would belong to him alone : but it is otherways in the community of the full property , where , after division any party may till and use all acts of property . a servitude of pasturage of a definite number of sheep upon large muirs , was found not to give interest to cause the heretor or tennents soum the same , that the ground might not be overflocked , to the prejudice of the servitude , january . . mr. alexander dunlop contra laird of drumelzier . where pasturage is constitute upon ground , a part of which hath been plowed before the constitution , it does not hinder the master of the ground to plow other places , then what was formerly plowed , but he may plow as much as he pleaseth , yet so that whenever the plowed ground lies lee , the pasturage will reach the same , jan. . . earl of southesk contra melgam and other heretors about munrew-mount . . the chief and most frequent servitude in scotland is thirlage , or a restriction of lands to milns , wherein the miln is dominant , and the lands astricted are servient . for as hath been shown before , a miln is a distinct tenement from land , and is not comprehended under the name of part and pertinent thereof , unless there be an erection in barony , lordships , &c. milns at first were built , as sometimes they are yet , without any astriction or thirlage , but only to gain by the work thereof , an equivalent hire , and so it is a voluntary personal contract of location and conduction , none being oblieged to grind their grain thereat ; but such only come as please , and for such hire as parties do accord : yet these who come to a miln without astriction , and without express paction , are understood thereby to agree to the ordinary multures of corns not astricted , which are called outen-town-multures : but now most lands are astricted to certain milns , and for a certain quantity of multure , far beyond the value of the work or grinding of the corns ; but upon other considerations , whereby it is a part of the rent of the lands astricted , as when an heretor astricts his own tennents to his own or anothers miln , it is a part of their rent , for the more multure they pay , they pay the less rent ; and so it is alike to them , whether it be great or small , or otherways . when a superiour gives out lands upon condition of thirlage , the multures are a part of the reddendo or price : and it is a general rule , that none can thirle lands but he that is fiar , and hath power of disposal thereof ; and therefore , astriction though it be not favourable , but hath the ordinary odium that other servitudes have , yet it is not to be accounted an unjust and intollerable bondage . . there are many questions about thirlage , which may be reduced to these two heads ; first , how thirlage is constitute and instructed . secondly , how far it is to be extended ; as for the first , we shall proceed from the ways more evident to these , which are more dubious ; and first positively , and then negatively . the first and most unquestionable way of constitution of thirlage is , when an heretor thirleth his own lands to his own miln , by consent of his tennents , whereby the multure becomes a part of the rent . secondly , when an heretor dispones his lands with express condition of thirlage thereof to his miln , or to any other miln . thirdly , when the heretor of milns or lands , feues and dispones the miln with the multure of his own lands , per expressum , all these ways are not contraverse constitutions of thirlage , whether they be in an infeftment , contract , bond , or other personal right , for these being cled with possession , are sufficient to constitute a servitude , though the right of the miln , being a separate fee. 〈◊〉 infeftment , fourthly , when the heretor of the miln 〈◊〉 or dispones the same with the multures used and wont , though he do not express out of what lands , it is sufficient to constitute a thirlage upon the lands , which were wont to pay in towns multure , being then his own lands ; or to convey the right of the multures of other lands , being formerly astricted . but where a barrony was principally disponed with the miln thereof , and the multures of the miln used and wont ; it was not found to extend to the multures of another barrony , holden of another superiour , though in use to come to that miln , december . . earl of cassils contra tennents of dalmortoun and john whiteford . fifthly , thirlage of a whole barrony is inferred by infeftment in the miln of the barrony , with the multures of the said miln being granted by the heretor , both of the miln and barrony , whereby these parts of the barrony that were not in use of astricted multures before , were thereby astricted , and that according to the use of the rest of the barrony , jan. . . wilson contra warrock , here the constitution bore not , used and wont , but multures of the miln generally . the like where the infeftment bore only , the miln of the barrony , with astricted multures , not repeating multures of the barrony , july . . alexander moncrief contra borthwick and pittinweem . sixthly , thirlage is constitute without infeftment , or any write subscrived by the heretor of the lands astricted , but only by an act or rolment of barron court , bearing , the heretors consent , and fourty years possession conform , hope , milns and multures , earl of murray contra earlesmiln . the like by decreet against the possessors , their master not being called , or consenting , but his bailie inacting them to pay multure with long possession , ibid. mr. andrew miln contra patrick falconer . seventhly , a dry multure was found constitute and instructed by use of payment , fourty years without any other adminicle , because it could not be constructed as a free or voluntary deed , as other multures may be , hope , milns and multures , james dog contra maxwel and the tennents of prestoun . july . . sir george kinaird contra mr. john drummond . eighthly , thirlage is inferred of lands within barronies of the kings property to the milns , holden and repute to be the milns of that barrony , only as being in use , past memory of man to do deeds of thirlage , as paying of multures , laying in of damns , february . . dog contra mushet . january . . james stuart contra feuars of aberlednoch . january . . john nicolson contra feuars of tillicoutrie . nor was it found relevant , that the feuars had right , cum molendinis , in the tenendas , which was but past of course in exchequer , in the common clause , as was found in the foresaid case , january . . james stuart contra feuars of aberlednoch . the reason hereof is , because the kings rights are constitute , jure coronae , without infeftment or other write , which is not requisite , or accustomed to be keeped ; and therefore , the presumption from long possession is sufficient , craig , l. . dieges . . relateth it as the opinion of some , that immemorial possession is sufficient to instruct the thirlage of kirklands , in the same way as of the kings lands , to which he assenteth not ; but the reason seemeth much to be the same , especially after the reformation , when the evidents of the kirk were lost or destroyed : so that long possession hath been sufficient to instruct the right of propperty of kirklands ; and may much more instruct this servitude , unless milns and multures had been granted to the feuars anterior to the feu of the miln . but unquestionably , thirlage is easilier sustained in kirk-lands then others , as it was sustained , being by an infeftment of a miln , cum multuris generally ; and the bishops precepts to his tennents to pay their multures to that miln , with long possession , though without consent of the chapter , decemb. . . david veatch contra john duncan . . as to the negative , first , thirlage is not inferred by use of coming to the miln , and paying multures there at , though immemorial , even though the multures payed were as great as the thirle multures , march . . gilchrist contra menzies . the reason hereof is , because such payment is but voluntatis , non necessitatis ; and therefore , can no more infer a servitude , then they who , past memory , came such a way to a town , were astricted only to come that way : but infeftment in a miln , with the astricted multures of such lands per expressum , and fourty years possession of paying the insucken multures , was found to constitute the thirlage , though the feuars were infeft cum molendinis , before the feu of the miln , and sometimes went to other milns , which not being frequent , and for some whole years , was found but clandestine , and such as occurs in all thirlages , and no legal interruption , june . . heretors of the miln of kythick contra feuars . secondly , thirlage is not inferred , because the lands are a part of the superiors barony , having a miln of the barony , where the vassals infeftment contains cum molendinis & multuris , or a feu-duty pro omni alio onere , or such a feu-duty allanerly , novemb. . . oliphant contra earl of marshal . but where the barons disposition contained not these clauses , his giving a subaltern infeftment of a part of his barony , which part was thirled to the miln before , it was not found liberat , but continued thirled to the miln of the barony , though the miln and multures of the barony were disponed thereafter to another , july . . newlistoun contra inglis . for , if the vassal had acquired that part of the barony with the multures , it would have been exprest particularly or generally , seing thereby the seller behoved to diminish the rental of his miln . thirdly , thirlage of a barony or any part thereof , was not inferred by a disposition or infeftment of a miln granted by the baron , though it be the only miln of the barony , seing he expressed not it to be so , nor expressed any lands nor the multures thereof , but only dispo ed the miln with the pertinents , july . . william douglas contra earl of murray . in this case , there were several acts of court thirling the tennants , and long possession , which was not insisted on , but only the act of court , which was not found sufficient , seing it was only by a bailie , without warrand or consent of the heretor , albeit cled with fourty years possession . but , a decreet against the tennants for astricted multures , and immemorial possession , was found to constitute thirlage to the miln of the barony , albeit the defender was infeft cum molendinis , prior to the infeftment of the heretor of the miln , and did sometimes go to other milns , but clandestinely , and sometimes was brought back by force , june . . colonel montgomery contra wallace and others which did not import interruption , which was not found by clandestine abstraction , but by paying no multure , at least for a whole year . fourthly , thirlage is not inferred by any deed of tennants , possessors , wodsetters , liferenters , or any other but the fiar ; and therefore , there will be no process sustained against the tennants for multures , unless the fiar be called , february . . laird of wardess contra laird of dunkincie or at least , that there have been prior decreets wherein he was called , constituting the thirlage , and all 〈◊〉 and acts otherwayes are null by exception , if quarrelled within prescription . fifthly , thirlage of lands to another mans miln , doth not infer a thirlage of the teinds of these lands , though acquired by the heretor who thirled the lands , july . . laird of innerweek contra hamiltouns . the like in molendino regio , where no write was shown , but possession , to consttute the thirlage , which was found not to extend the teinds , january . . james stewart contra feuars of aberledno . the like where the clause of thirlage bore , omnium granorum crescentium super terris suis : here the heretor of the lands thirled had no right to the teind , spots . milns and multures , laird of wauchtoun contra hoom of foord . the like where the clause in a charter , granted by an abbot to his feuars , bore the astriction , omnium granorum , which was found to extend to the teinds which then belonged to the abbot ; and the teind was found thirled , when a feu-duty was payed both for stock and teind , january . . greirson contra gordoun of spado . nor will the exception of teind be sustained in milns belonging to kirkmen , having right to both stock and teind . . the next point proposed , was the effect and extent of thirlage , being constitute , which is exceeding various ; for clearing whereof , advert , that thirlage is either introduced and instructed by custom and prescription , or by paction and write ; when it is by prescription and custom , it is wholly regulat by custom , and the heretor of the miln and his tennents , can get no more , and wil get less then they instruct to be their ancient custom , which holds where thirlage is constitute by write , but generally with the multures , sequels , and services used and wont , for then also custom must rule it , and the heretor of the miln will not be put to prove what the custom was before that write , though it relate to custom past ; but long custom present will be sufficient presumption and proof of what was that preterit custom , if the contrary cannot be proven ; and though it should be proven , yet fourty years possession will alter the case , and either increase the servitude or the freedom . if the servitude be constitute by writ , special regard is had to the tenor of the writ , which therefore varieth thirlage accordingly ; so thirlage simply exprest in the writ , without mention of all grain growing upon the ground , was found to extend to all corns growing thereupon , abstracted to other milns , or sold , though they had payed no multure past memory for sold corns , june . . laird of wauchtoun contra hoom of foord . . a clause of thirlage bearing , una cum multuris omnium terrarum intra parochiam , found not to extend to other corns bought-in , and not growing within the sucken , hope , milns and multures , giles murray contra tennants of drumsei . a clause of thirlage , thirling an heretors tennants to another mans miln , and all the tennants grain growing upon the land , found not to extend to that heretors farm-bear , whether delivered to him , or sold by him to his tennants or others , but that the same was multure-free , but yet was thirled , and behoved to come to the miln and pay the smal duties only , hope , milns and multures , lord keith contra nathaniel keith : which is also observed , with this further , that invecta & illata were not thereby thirled , spots . de servitutibus . a clause of thirlage omnium granorum crescentium , was found not to extend to the heretors farms who had so thirled his lands , not being grund at any other miln , but sold or otherwayes made use of : neither to corns not growing within the thirle , though tholing fire and water , or garnelled there , july . . keith contra tennants of peterhead . a clause of thirlage granted by a town to a miln , expressing invecta & illata , found to be extended to all corns kilned or steeped within the thirle , though not brought to the miln , nor use made of within the thirle , spoos . de servitute , ruthven contra cuthbert of drakies . thirlage of invecta & illata constitute by a towns charter , found effectual as to the grain that grew in the thirle of that miln , and was lyable for a greater multure , as grana crescentia , so that these corns being bought by the town , fell to pay both the ordinary multure , as growing in the thirle , and a lesser multure by a several thirlage by the towns charter , thirling , omnia invecta & illata in their town , to that same miln , seing the town might shun the inconvenience of double multure , by buying only corns , which grew not in the thirle of that miln , decemb. . . sir andrew ramsay contra the town of kirkaldie . . in this case invecta & illata , was found to import mault made within the liberties of the town , or brewed within the same , but not to meal where they did not buy the corn , but bought the meal , though it was baken in the town , in respect it was so proven to be the custom , november . . inter eosdem . but the quantity of abstract multures being referred to the towns mens oathes , they were not found olieged to depone that they had payed the whole multures of years long bygone ; but only if they knew and remembered , that any part of it was not payed , and what that part of it was , december . . inter eosdem : but ordinarly , invecta & illata , or tholing fire and water is only interpret of steeping and killing , but not of baking or brewing . a clause in feuars charters thirling them to the superiours milns of such a paroch , whereof there were four , was found not to be put in the option of the feuars , to go to any of the four , but to keep to the particular miln , to which they were accustomed , in respect the milns had several suckens , and the feuars were in use fourty years to pay multures , and do all services thereto , as was found , . as to the miln of catharine . and the like found , as to the miln of dalsangan , another miln of mauchlein about the same time . thirlage being constitute , or determined by custom , doth ordinarly carry , not only multures of the grain growing within the sucken , but those that thole fire and water within the same , by being kilned and steeped , and in some places brown within the same . the quantity of the multure , if it be not determined by write , is determined by use of payment of the barrony or sucken , though a part thereof in question , payed less formerly , which did only liberat them from bygones , july . . neilson of craigcaffie contra tennents of innermesson . . beside the multures thirlage , is extended to sequels , which being expressed in thirlage , is understood to be the knaveship , bannock , or lock payable besides the multures , to the milners and their servants for their service , according to the use of the several milns , though these be not exprest , march . . adamson of braco contra tennents of shallie . the like before , even where the corns were abstracted , spots . milns , march . . and where the thirlage is by use and custom , these small duties are accordingly due beside the multure . . thirlage also carries service to the miln , as carrying home of miln-stones , upholding the damns , watergates , and of the miln-house , which are services diverse , and regulat according to the customs of the several milns . the thirlage constitute by infeftment of a miln , cum mutturis & sequelis , found to give right to the ordinary miln services to the miln-damn and miln-stones , by paction or prescription , the same were taken away , february . . maitland contra lesly . in proving of the customs of these duties to milns , there is no necessity to prove fourty years constant custom , but diverse years custom , in 〈◊〉 , unless a contrary custom be proven by the thirled , nicol. de servitute , 〈◊〉 contra ballachan . but it was found , that an heretor of a miln being infeft , and in possession of the miln , with the multures of the lands in question , 〈◊〉 , he hath the benefite of a possessory judgement , with seven years 〈◊〉 , and so it will stand and be effectual , till it be reduced notwithstanding an anterior infeftment , cum mollendinis , june . . maxwel contra maxwel . . thirlage also is esteemed by some , to carry this priviledge , that the heretor of the miln may , brevi manu , cast down any other miln bigged within the thirle : but craigs opinion is in the contrary , in the forecited place , and it was so found , where the miln so bigged had gone fifteen days , spots . husband and wife , laird of ludquharn contra earl of marischal . but whether it may not be hindered , while the new miln is in building , is not so clear , at least it may be civily interrupted , nunciatione novi operis . in respect of the favour of going milns ; these are not to be destroyed , for the publick use of the countrie ; from which ground it is , that the water-gang of a miln , passing thorow an heretors land , was not suffered to be stopped , though it was without consent or prescription , not being to his prejudice , hope , milns , laird of bass contra laird of balgown . but though milns may not be stopped , brevi manu yet building a miln within the thirle on pretence to get voluntary multure ; and that the builder will still bring his own corns to the other miln , is unwarrantable , and contrary the common custom of destroying querns , which might have the same pretence , nor could it be known what were clandestinely grund at the new miln , within the old thirle ; but halyards being building a miln near to breast-miln , who craved summarly to stop him , by supplication to the lords , they did refuse to stop , because it was not clear that his land were thirled , july . . thirlage hath also this effect in someplaces , that when any person is apprehended , abstracting corn , the horse and corn may be seazed upon , braevi manu , and the corns confiscated to the milner ; and craig relates in the forecited place , that it is the ordinary custom in france , that corns are escheat to the lord , and may be seazed summarly . it is related by craig , l. . dieg. . out of the statutes of king william , that there ought to be a master and two servants in every miln , sworn to be faithful to the master of the ground and his men , and that the common multure , not determined by infeftment , is the twentieth grain ; and that all grain that shall be set down upon the ground of another thirle , shall pay multure there ; and that when a horse carrying grain , out of the thirle is taken , the grain is escheat to the miller , and the horse to the master ; and that he who removes from the thirle , shall have his seed multure free : these are most part over-ruled by custom , as hath been before showen . this far i find it amongst our customes , that the spuilzie of a horse was elided , because he was seazed upon , taking corns out of the thirle to another miln , as was the custom of that place , and that after carrying back thereof , the horse was offered that same night , january . . menzies contra mckie , thirlage , omnium granorum crescentium , upon such a tenement , found to extend , not only to the tennents , but to the mains , july . . dundas of breastmiln contra skeen of halyards . . it remains that we confider how thirlage being constitute , is destitute or taken off ; and that is in the like manner as it was constitute , either by prescription , whereby liberty is recovered to the thirled lands , which needs no positive act to deny the multures , but simple forbearance to lift or seek them is enough , or otherways by any discharge or renunciation , without further solemnity , for in that way also it is constitute ; but the most ordinary way of taking off thirlage , is by granting a charter , containing milns and multures in the tenendas , which was not found good as to the kings feuars , because past in exchequer without notice , as the common style , january . . james stuart contra feuars of aberledno ; which is more evident , when milns and multures are in the dispositive clause ; it hath the like effect when the miln and multure is disponed to one party , and by a prior disposition or infeftment , the same lands which were of old of the thirle , are granted to the vassals thereof , cum molendanis & multuris , for thereby the posterior infeftment of the miln and multures , is a non habente potestatem and ineffectual , novemb . . . mr. william olephant contra earl marischal . . in thirlage there is only allowance or deduction of seed and horse-corn , but nothing for expenses of labouring , jan. . . nicolson contra feuars of tillicoutrie . . thirlage by a vassal was not found effectual against the superiour , when the lands fell in his hands by ward , unless the superiour had consented , decem. . . earl of cassils contra tennents of dalmortoun . thirlage by a vassals charter , found not to make him lyable for the abstraction of his tennents , but only the tennents themselves , decemb. . . earl of cassils contra sheriff of galloway . . if it be questioned whether multure be due when the miln is unable to work by frost , breaking of the damn , or otherways , it must be distinguished , that if the insufficiency of the miln or the want servants be through the fault of the heretor , or his milner , these of the thirle may go to other milns , and they will not only be free of small duties , but they may retain for the reparation of their damnage ; such out-sucken multures as they payed at the miln they went to , but if the insufficiency be by accident , without the milners fault , they may go elsewhere with what is necessary for the interim , and will be free of the small duties thereof , but of no part of the multure , because as hath been shown before , multures are now a distinct rent , and are not as the hire of the work , but besides the multure , the small duties are the hire ; and therefore , the milners failzie can only take away these small duties , it was so found , february . . heretrix of john smiln contra feuars . title xviii . teinds , where , of benefices , stipends , presentation , collation , institution , tacks , annats , and patronage . . teinds affect all intrometters , but not singular successors . . the rise of teinds . . the first division of parochs . . whether teinds be jure divino . . kinds of teinds . . we have no personal teinds and viccarage , is local according to the custome of the several places . . what lands are teind-free . . teinds might not be feued after the lateran council . . teinds are not annexed to the crown . . teinds included . . surrender of teinds to the king and his decreet arbitral , for valuing and selling thereof . . commission for valuating of teinds . . annuitie of teinds . . the rule for valuing teinds . . benefices . . decimae debentur parocho : . consent of the chapter , convent , or prebend , how far requisite . . diminution of the rental of benefices . . consent of patrons . . tacks by colledges . . the present condition of teinds . . drawn teinds . . spuilzie of teinds and inhibitions . . rentalled teind bolls . . the interest of bishops in their benefices . . the interest of ministers in benenefices . . kirks patrimonial , or patronate . . presentation and collation . . the effect of possession as to benefices and stipends . . stipends allocat , and unallecate . . teinds change as the lands are in grass , corn or other cropt . . teinds are not debita fundi . . the legal terms of benefices and stipends . . the annat . . patronage . teinds being a burden , affecting lands , and profites thereof ; and being also a disrinct right from the lands , do , most fitly fall under consideration here , and either as a servitude subjoyned to the preceeding servitudes , or as a several right requires the same order . . teinds do affect all intrometters with the stock and teind jointly , or with the teind severally ; but though they be valued , they are not debita fundi , affecting singular successors , for which the ground can be poinded , february . . earl of callender contra andrew monro . neither do they affect the present heretor , while a liferenter possesseth , june . . menzies contra laird of glenurchie . teinds , as the word denoteth , signifieth the tenth of that which is teinded ; and besides the civil decimations that have been imposed by soveraigns upon their subjects , as a tribute for defraying of publick charges ; there have been anciently and frequently teinds granted for sacred and pious uses ; so abraham gave to melchisedec , the teind of the spoil of his enemies , gen. . . jacob voweth to god also the tenth of all that god should give him , gen. . . and it is evident that the lord appointed the tenths of israel for the levites , whom he had set apart for himself , who were to give a tenth thereof to the priests , who served at the altar , numb . . , and : the teinds did so continue till the alteration of the jewish church . the heathens also did consecrate their teinds to their idols , and payed them to their priests : thus plinius , cap. , and . observeth : and herodot observeth in his first book , the like of syrus . . aristus bishop of rome , who was the first who divided the ministerial charge by parochs ; the church before not being so distribute to the several ministers ; this order being so convenient , that by appropriation of a fixed pastour to a certain flock , no pastor might be idle , and no flock neglected . it hath run over the christian world , and the teinds of these parochs have been payed to the pastors and ministers of the church . . from these and the like grounds , most of papists , and some of protestant divines , have concluded teinds to be jure divino , as being institute and consecrate by god himself , having a moral and perpetual foundation , that these who are set apart from worldly affairs , to the service of god , should have a competent liveliehood from these for whom they serve , but the determination of the quota , to be the tenth part rather then any other proportion , is a positive law that god manifested , and was observed before the written word ; and was retained by the heathens , even after they had deviat from the true god : but most of the protestant divines , hold teinds to be the voluntary dedication and consecration of men , for pious uses , and to have continued in a tenth part from the example of abraham , the father of the faithful , and of the divine constitution , in the judicial law ; but there is no divine moral precept in the word for teinds , of which there is no mention in the new testament , even where the mentainance of ministers is purposely spoken to ; but only that these who serve at the altar should live by the alter . that these who sow spiritual things , should reap temporal things , which doth hold forth a moral duty of recompense , to provide a competent liveliehood for these who are separat from the world for our cause , but doth not infer a tenth part or any other determinat proportion , but what is convenient . . teinds are defined by the canonists , to be a tenth part of all profites and increase ; and they are of three kinds , personal , predial and mixed : personal are the teinds of the profite of personal industry , as by trading , negotiation , artifice , science : predial are of the natural fruits of the ground or water : mixed are of the industrial fruits of the ground . . but our custom alloweth of no personal teinds ; and of these predial and mixed , such only which have been in use , according to the custom of the several places ; such are teind fish , for which the buyers of the fish were found liable , because of that custom past memory , february . . brice semple and schaw contra brown. but where the fishers were fourty years in possession of fishing , without teind , in such a bay , it was found sufficient to liberate them , november . . bishop of the isles contra the laird of greenock and others : also in other places , there is no teind of fishes ; in some places , hay , staigs , swine , lint , hemp are teinded , in other places not , but generally , victual is teinded , and stirks , lambs , wool and milk. . the viccarage teinds is local , according to the custom of every benefice or paroch , and therefore , was suftained for the viccarage of salt , and so much out of each loom , but not upon thirteen years possession , but only upon prescription by fourty years possession , november . . mr. john birnie contra earl of neth●sda●● and his tennents : yea , in the same paroch there was found diversity of the viccarage , some places having no viccarage of cows and other places paying viccarage of milk , and wool for sheep ; and other places paying viccarage of hay , goose and grice , july . . parson of prestounhaugh contra his parochioners . and viccarage was not found due out of yards , which were a part of the chanrions portions , unless it were proven that they had been in use of payment of viccarage before . . some lands also by long custom , are teind-free , as temple-lands , being out of use of payment of teinds for fifty years , were found free for all time thereafter , hope , teinds , earl of wigtoun contra lady torwood . gleibs and manses are also teind-free . and the teinds of lands belonging to the cystertian order , hospitlers and templers , were teind-free , and so continue in their feuars , though the priviledge was only as to what these orders laboured themselves ; yet the teind was found to belong to their many feuars , for what the feuars themselves labour , july . . thomas crawford contra laird of prestoungrange . . teinds were prohibite to be set in feu to lay-men , by the lateran council , held by pope innocent the second , or any way to be alienate from the church : though church-lands might be set feu , these being accounted but the temporality , and the teinds the spirituality , as flowing from a spiritual ground or divine right . . teinds are also acknowledged with us to be the patrimony of the kirk , par. . cap. . and they are not annexed to the crown , as the temporality of benefices are . par. . cap. . . yet decimae inclusae are here excepted , for these are feued with the stock , and can be only such , as time out of mind have gone along with the stock , and never have been drawn nor separate ; and therefore , are so ordinarly exprest , decimae , inclusae , nunquam antea separatae ; and therefore , such are presumed to have been feued out with the stock , before the lateran council , and so consistent with the canons : but if it can be proven that once they were separate by church-men , though they had right both to stock and teind , and were feued with teinds included , they are not valide decimae inclusae , which no church-man could feu after the said council . neither can the king constitute feus , de novo cum decimis inclusis , so that these teinds included , are estimate as no teinds , long custom being fufficient to make lands teind-free ; and therefore , they have never come in with teinds or benefices in any burden , affecting teinds by law , as ministers stipends , &c. . about the time of abolition of popery in scotland , the popish clergie did grant more frequently long tacks of their teinds : the king also gave donatives of teinds and erected them with church-lands into barronies and lordships , so that there remained little of them , no way able to entertain the ministers ; and much contraversie was like to arise about them , till all parties having interest submitted and surrendered the same to the king. first , by the general surrender of erections and teinds , secondly , by a particular surrender of some beneficed persons . thirdly , of the bishops . fourthly , of the burrows . the king , upon the . of september . ordered the whole matter to this effect , that the whole teinds should be consolidat with the stock , being always affected with competent stipends to ministers , &c. and that therefore , the titular or the tacks-man of the teinds , having perpetual or hereditable right , should sell the same to the heretors , at nine years puchase ; and where the right was temporary or defective , the price thereof should be made less accordingly . . and for that effect , a commission was granted for valuation of teinds , and for disponing thereof as aforesaid , and for modifying and localling stipendsto the ministers : his majesty reserved to himself only a yearly annuity of ten shilling scots out of each boll of wheat and barley , eight shilling of pease and rie , six shilling of oats where the boll rendered a boll of meal , and proportionally less where it rendered less : these decreets were ratified and prosecuted by several acts of parliament , . cap. , , , . and . cap. . par. . cap. . par. . cap. . par. . cap. . there was an exception in the act . cap. , which ordained the teinds of all abbacies and other benefices , except the teinds pertaining to bishopriks and other benefices , which fell not under the submission ; in which , there is a clause , that the saids bishops and beneficed persons , should enjoy the fruits and rents of their several benefices , as they were possessed by them , the time of the said submission , and therefore , where they did draw the teinds by the space of fifteen years before the year . or at least seven years of the saids fifteen years , or had the same in rentalled bolls , they should so continue and not be valued , which provision is repeated , par. . cap. . all this proved for the most part ineffectual ; for compelling titulars and tacksmen of teinds to sell their interest in other mens teinds , to the proper heretors ; because these commissioners , allowing them an option to allocat whom they pleased , for the payment of the ministers stipend ; few ventured to pursue them for vendition , least they might be excluded be allocation , which they were willing to avert , by giving the dearest rates ; but if the stipend had been laid proportionally upon all , the kings favour had been more effectual and equal ; but buying of teinds being thereby retarded , the great work of these commissioners was to value , modifie and allocat stipends , when the tack-duties of the tacksmen , were not found sufficient to make up thestipend ; the commission did increass the tack-duties upon the tacks-men , and in recompense thereof , prorogat their tacks , whereby they , though at first being but slender rights , by many nineteen years prorogations became little less then heretable rights . . the annuities of teinds not being annexed to the crown , were disponed by king charles the first , to james livingstoun , a groom of his bed-chamber , to be uplifted by him till he was satisfied of the sum of which right was purchased by the earl of lowdoun , and did receive many stops , and took litle effect till the kings return , who gave a commission to the late earl of lowdoun , to transact for the bygone annuities , and to dispone them with the full right thereof in all time coming , and his disposition with consent of two members of exchequer was declared sufficient rights to the buyers , and were appointed to be recorded in the books of exchequer , that the sums gotten therefore might be known , and imputed unto the sum , for which the right to the annuity was granted ; according to which , many have bought their annuities . the commission did also give power to value the teinds , that the annuity might be known , and to uplift and compone for the bygone , and the current annuities until they were sold , and accordingly collectors were appointed by the earl of lowdoun , in several places of the kingdom . the like commission was renewed to james earl of lowdoun , after his fathers death , who did make some progress therein , in the same way as his father had done , but a stop was put thereto by the kings warrant , in anno . which doth yet still continue : and with this stop , by a proclamation from the king , all the arrears of the annuity before the year . were simply discharged . . the rule prescribed by the king , for valuation of teinds , to fix them to a constant yearly duty , was this , that where the teinds were severally known from the stock , and set by tack or rental , the same should be also valued severally , deducing a fifth part for the ease of the heretor , because frequently the church-men had drawn the rate of the teind above the just value , by their stocked and rental bolls : but where the stock and teind were not severally known , the fifth part of the rent was decerned to be for the teind . . teinds by the canon law , were all constitute into benefices , which follow the several offices in the roman church , which were either prelacies or inferiour to prelacies : prelacies were the sewho had chapters and convents , and therefore , one had the prelacy or preserence amongst the rest of their colleagues , such were arch-bishops , bishops , abbots , priors , prioresses : abbots and priors had the prelacy amongst the mouks , of several monasteries , as the prioresses had over the nuns . there were also some few monasteries which keeped the name of monasteries or ministries , and the prelate was called minister , of which there are four in scotland ; the minister of fale , peebles , scotland-wall , and the trinity-friers of aberdene : next unto these , were the provosts of collegiat kirks , instituted for singing of mess , specially for their founders and patrons ; these provosts governing their prebend , who were skilful in musick , and had their several stalls in which they sat , for the more orderly singing of their parts of musick , from which these prebends were designed of the first , second , or other stall . some of the colledge-kirks were founded by the king and great families : the chapel-royal is a collegiat-church , governed by the dean of the chapel ; which office is now annexed to the bishop of dumblain , under whom are the prebends of the chapel-royal . the earl of fife sounded the colledge kirk of kirkheugh . the earl of march founded the colledge-kirk of dumbar . the earl of bothwel , the colledge-kirk of chrightoun . the earl of lennox , the colledge-kirk of dumbarten . the earl of ross , the colledge kirk of tain . other families erected chapels , officiat by one chaplain : inferiour to these prelacies , were parsons , viccars , chaplains , prebendars , these had patrons , whose advice and protection , they used in stead of a chapter and convent which prelacies only had . . the general rule by the canon law was , that decinta debentur parocho de jure , the parsonage teinds to the parson ; the viccarage , or small teind to the viccar ; and where no other appeared to instruct right , the teinds were ipso jure , due to parsons and viccars , it was so found ; and that the kings gift was not sufficient to carry the right of teinds , from the imcumbents , unless mortification thereof to any other office or benefice possession thereof by another office were instructed , june . . alexander ferguson contra stuart of ascog . the bishops and such prelacies as had curam animarum , had chapters ; and the priors , prioresses , abbots , &c. had convents , whose consent in all masters of benefices being chapterly conveened , was necessary , and in evidence thereof , the seals of the chapter or convent were appended . viccars were either such as were substitute by parsons and other clerks , or such as had a distinct office ; and therefore , were not changeable by their constituents , and were called viccars of cure cum cura animarum ; or perpetual viccars : chaplains were clerks , having curam institute for their accommodation who were far from ordinary churches ; and therefore , were erected upon the expenses of the founders , who were therefore patrons ; and of all other patrons supposed to have greatest interest in these benefice ; so that after the reformation , these chaplanries and prebendaries , were declared to return and be disposed upon by their patrons , to bursers of colledges , par. . cap. . likeways prebendars were such as had prebendam or a benefice , which was at first a common name , but was made special by use to these clerks , who had no other special name . these prebendars were either cum cura animarum , or sine cura , as parsons preparing for orders , most of them were institute in colledge-kirks , for singing of mess , specially for the founder and his family , over whom was a provest , having the power of prelacy ; in these also the patrons were held as founders , and had the chief interest in the benefice , which therefore , after the reformation , returned as void to them ; the chief prebendars were these of the kings chapel-royal ; the intent of constitution of these offices , as aforesaid , was mainly to secure the benefice and patrimony of the church against dilapidation , the incumbents being administrators , or at best liferenters , night other ways have wronged their successors , in favours of their friends and relations ; and therefore , prelates could do nothing of moment , without consent of their chapters or convents , or other beneficed persons , without consent of their patrons . though these offices were abolished by the reformation , there was no other way fallen upon , for managing of benefices , but by giving secular persons the designations of these offices , who therefore were called titulars , because they had the naked title without the office of bishops , priors , abbots , provests , &c. who in lieu of the consent of chapters and convents , appended only the common seal thereof ; and when bishops were set up again , and chapters appointed for them , the consent of the major part thereof was requisite , with the seal ; yet it was not necessary that they should be chapterly conveened , parliament . cap. . . but before the reformation , according to the canon law , there were these restraints upon beneficed persons , in order to their benefices , as to teinds , they could grant no feus at all , neither could they grant tacks without consent of the chapter or convents of prelats , the members whereof were found sufficiently proven by feues , and presentations granted by prelates , and subscribed by these persons as members of the convent , without necessity to show the erection or foundation , or these persons admission , and that there were no more members of the convent , then the eight subscribing several writes , june . . laird of drumlanring contra maxvel of hills . spots . kirkmen , parson of kinkel contra laird of coulter . the consent of most part of prebenders , was necessary , not reckoning the prebenders , that were out of the countrey ; this was also observed by the earl of haddingtoun , march . . inter eosdem . the consent of the chapter was found , not only necessary to the deeds of the prelat , but to the deeds of the members of the chapters ; and so a tack set by a dean , though of teinds mortified to a colledge , whereof the principal was dean , was found null , for want of the chapters consent , spots . kirkmen , colledge of aberdene contra lord frazer ; where he observes , that the same was found twice before , yet it was not found necessary to the tacks of the several members of the new erected chapters of st. andrews , whereof many ministers were of laick patronage , hope , teinds , tennents of craighal contra mr. walter kinninmont . but the old priviledge of the bishop of st. andrews , which is yet ccontinued is , that the appending of his seal is sufficient , both for him and the chapter , without necessity of their subscription , par. . cap. . . secondly , beneficed persons were restrained from setting tacks of their teinds , even with consent of their chapters , with diminution of their rental ; and therefore , ministers provided to benefices , granting pensions , tacks or feues of their benefices , with diminution of the rental , they found at their entry , the same are declared null , and they to be deprived , par. . cap. . and also all beneficed persons were ordained to find caution to leave their benefices in as good case as they found them ; and all tacks , provisions , or changing of victual in money . in diminution of the rental , which was at their entry declared null , par. . cap. . but by act of par. . cap. . it is declared lawful to the bishops to set as many tacks of the fruits and duties belonging to their benefice , either short or long tacks as they please , and for as many years as they think expedient ; which may subsist of the law without restraint or limitation of any time ; which tack being once set , shall be accounted , the rental not to be diminished thereafter ; but there is no restriction in relation to any rental , preceeding the said act ; but it is only recommended to the bishops to set to a competent avail near the worth ; but by the act of par. . cap. . bishops are prohibit to set tacks for longer space then nineteen years : and all pensions or tacks of the thirds of benefices , which then belonged to the church , set in diminution of the rental , payed at the first assumption of the benefice , were declared null , par . . cap. . . thirdly , inferiour beneficed persons could set no longer tacks of any part of their benefice , then three years without consent of the patron , par . . cap. . which was extended to deeds done by provests and prebendars , though having a resemblance with prelacies , seing the patron hath so great interest , hope , patron , laird of drumlanrig contra cowhil and others . and beneficed persons below prelats , are discharged to set tacks of any part of their benefice longer then their life , and five years after ; and if these tacks be not registrate in a book keeped by the clerk-register for that effect , within fourty days after the date thereof , they are null , par . . cap. . yet in these long tacks , the consent of the patron is still necessary ; and therefore , a tack of teinds , without consent of the patron , was only found valid as to three years , and null as to the rest of the years contained therein , july . . mr. george johnstoun contra of howdoun . and a tack of teinds for more then three years without consent of the patron , was sustained by his subsequent consent , having accepted a right to the tack , and obtained prorogation thereupon , january . . earl of athol contra rohertson of strouan . . a tackofteinds set by an university for a definite time , with an obliegement to renew the same in all time thereafter , was found not effectual after the definite time , though the same rent was received for years after , which was not sustained as homologation , but as tacite relocation , july . . old colledge of aberdeen contra the town of aberdeen . . to come to the condition of teinds , as it now stands : a great part of them is in the hands of the heretors to whom the stock belongs ; a part also is in the hands of titulars and lords of erection , and tacksmen having right to other heretors teinds , who have ordinarly prorogation of their tacks ; the rest belongs to ministers , or royal burghs , for the maintainance of their ministers , colledges or hospitals . of these teinds which are not in the heretors own hand ; some are drawn in kinde , ipsa corpora ; some are in old stocked rental bolls ; some are in tack or use of payment , and others under valuation . we need to say nothing , as to teinds that are in the hands of heretors to whom the stock belongs , about which there can be little controversie , except in the case of new erections or augmentations ; for teinds , through whatsoever hands they pass , carry alwayes along with them , as a burden affecting them , competent stipends for the ministers who are or shall be erected . neither is there any other debate concerning teinds orderly valued , being thereby liquidate and clear ; nor concerning these teinds which are in tack during the tack , further then hath been said before of the requisites for setting such tacks . it remains to consider drawn teinds and rentalled teind bolls , and conclude with the present interest of ministers and patrons . . as to the drawn teinds , the manner thereof is prescribed , par. . cap. . that the possessors may require the teind-master , once for teinding of croft or in-sield corn ; next , for teinding barley ; thirdly , for out-field corn , within eight dayes after the shearing of these three several kindes of corn ; or at least , when the same are shorn till about a tenth part , to come and teind the same within four dayes ; and the teind-master , if he dwell not within the paroch , is ordained to have a servant for teinding , and to intimat his name publickly the last sabboth of july , or first sabboth of august : so that upon requisition to the teind-master personally , or at his dwelling-place in the paroch , or to his servant so designed , the possessor might proceed to the teinding of his own corns ; and if the teind-master resided not in the paroch , nor had any servant designed , or if upon intimation they appeared not , the possessor might before witnesses teind his own corns , and was only oblieged to keep the teind skaithless for eight dayes after the separation ; but if any medled with the teinds any other way , he is lyable for wrongous intromission . . spuilzie of teinds is only competent in the case of violence , where the teind-master being in present possession and use of drawing the teind , doth orderly come to teind , and is debarred by force ; or when the teind-master , being in use that same year or the former year to draw the teind , any other intrometteth therewith . the former act is like ejection , and this is like intrusion , especially if the teind-master have used inhibition by publick letters , published at the paroch-church where the teinds lye , as an intimation to all parties having interest , to forbear medling with the teinds , otherwayes then by order of law , which may be execute by any person as sheriff in that part , january . . earl of eglintoun contra laird of cunninghamhead . this inhibition is the competent legal way to take off tacite relocation , when teinds have been set in tack , and the tack expired ; and when they are in use of payment of certain duty , and hath then the same effect that warning hath in relation to tennants of lands , and being once duly used , it interrupts tacite relocation , or use of payment , not only for the years wherein it is used , but for all other subsequent years , march . . lord blantyre contra parochioners of bothwel . but the titular may not by force draw the teinds after inhibition , but must pursue therefore where there was any pretence of title , else it is a spuilzie in him , january . . laird of bairfoord and beanstoun contra lord kingstoun .. upon process , spuilzie was sustained against the heretor , receiving a joint duty for stock and teind , march . . john inglis contra gilbert kirkwood : but it is not effectual to infer spuilzie against tennants , continuing to pay their masters a joint duty for stock and teind , as they were in use before , though the inhibition was particularly intimat to the tennents , seing they knew not how to distinguish the proportion of stock and teind , having still payed a joint duty promiscuously for both , december . . arbuthnet contra tennants of fairnieflat . but the priviledge of tennants paying to their masters for stock and teind jointly , was not extended to a merchant buying a whole cropt together , who was found lyable for the teind , though he payed before any diligence , june . . mr. alexander verner contra george allan . in like manner , merchants buying the herring where they were taken in the isles , were found lyable for the teind by immemorial possession , so to uplift the teind-fish from the merchants , who bought whole boat-fulls of the herring green , december . . bishop of the isles contra the merchants of edinburgh . but , as warning , so inhibition of teinds is taken off by accepting the old duty thereafter , or of the ordinary taxation accustomed to be payed for the tack-duty , hope , teinds , lord garleis contra tennants of whitehorn , or by a small part of the old tack-duty , ibidem , mr. andrew balfour contra lord balmerino , john glendinning contra tennants of partoun . . rentalled teind-bolls is , when the teinds have been liquidate and settled for so many bolls yearly by rental , or old use of payment which presumeth a rental . by this means , the beneficed persons gained an advantage of the possessors ; and therefore , by the kings decreet arbitral , such teinds which are separat , and severally set or known from the stock , had a diverse and dearer valuation ; and therefore , rentalled teind-bolls were found due by use of payment immediately preceeding the debate , though exceeding the worth of the teind , till the teind in kind were offered , and intimation made that the party would not continue the use of payment of rentalled bolls , march . . lennox of branshogle contra tennants of balfroon . teind-bolls were found due according to the old rental , though a lesser quantity was received by a minister for several years : here the bishop to whose bishoprick the teinds of that paroch were annexed , opposed the alteration of the old rentalled bolls , whereof a part only was allocat to , and received by the minister , july . . mr. george summer contra stewart of balgillo . the like where there was a decreet formerly for the teind-bolls , but prejudice to offer the teind in kinde in time coming , feb. . . colledge of glasgow contra mr. james stewart . . the interest of bishops in their benefices , is much alike with ministers as to their entry , which is regulat by their consecration or translation , which if before whitsonday , gives them the benesit of that year ; and if after whitsonday , it gives them the half . during their incumbence , they have not only the fruits and rents of the benefice , but the power to set tacks for nineteen years , with consent of their chapters , vide § . and to receive vassals , and to constitute commissars ; all which are effectual after their death or removal . they have also the quots of testaments confirmed by all their commissars during their life , or within the time of their ann after their death ; but they have no quots of testaments not then confirmed , although the persons died in their life , or during their ann , because the quot is due for the confirmation , as was found , july . . bishop of edinburgh contra captain wishart : and for the same reason , they have not the compositions or duplications of heirs , apprisers or adjudgers , whom they do not actually receive in their life , which will not belong to executours , or fall within their ann , but to the next intrant , who only can receive these vassals . . the interest of ministers in the teinds may be considered , either in their entry during their incumbency , or after their removal . in all which , the ministers interest is of two kindes ; for either he hath the benefice , parsonage or viccarage , or hath only a stipend modified thereof ; for these benefices did ordinarly belong to the incumbents of particular paroches , and sollowed the office of serving the cure there : and therefore , when these benefices were not erected in temporal baronies and lordships , or otherwayes so affected by titles , tacks or new erections , that the ministers thereby could not have a competency , they betook themselves to the benefice , and had the same right and priviledges as to them , as beneficed persons formerly had , and might set tacks thereof in the same way , and with the same restriction , as is before declared . but more frequently , the ministers had modified stipends , which were appointed by the king and parliament to be modified out of the teinds , whatever the title or interest of any other person were therein ; which they could not reach , if they took them to the benefice it self , as they might have done by the act of par. . cap. . ordaining , that all benefices of cure under prelacies , should be provided only in favours of able ministers . . the interest of ministers was according to the nature of the benefices whereunto they were to have right , or out of which their stipends were to be modified ; for all kirks were either patrimonial , or patronat , and by clearing patronage , it will easily appear what kirks are patrimonial : for , this distinction is taken from that of persons in the civil law , in these who are ingenui or fully free , and libertini or become free , but with some acknowledgements and services to the authors of their freedom , who were therefore called their patrons : so there stood the like relation betwixt patrons and kirks patronat , as betwixt patrons and libertines , the ground whereof was an eminent good deed done by the patron or his predecessor to that kirk , especially these acknowledged in law , patronum faciunt , dos , aedificatio , fundus . signifying the building of the church , or giving of the stipend , or of the ground necessary for the church , church-yard , manse or gleib , were the grounds for constituting the patronage , which were sufficiently instructed by custom of the kirks , acknowledging such a patron . it was lately contraverted who should be patron of a second minister , whose stipend was constitute , not out of the teinds , but by contribution , and ingagement of a town for the greatest part , and the heretors of the landwart paroch for the rest ; whether the patronage and power to present that second minister , should belong to the patron of the kirk , having the unquestionable power of presenting the first minister , or the contributers , in which competition , the patron of the kirk was preferred , because the contributers had never been in possession of presenting , nor had reserved the patronage nor power of presenting in the erection of the second minister , which was only by an act of the bishop and presbytry , bearing the shares contributed for a second minister ; but neither reservation nor protestation by them concerning the patronage or power of presenting the second minister ; nor was any thing of custom or possession to show the meaning of the parties , november . . town of haddingtoun contra the earl of haddingtoun . this case will not prejudge erections of second ministers in most of other towns in the kingdom , where the erection doth bear reservation of the patronage . but for clearing of the derived right from the first patron , especially to singular successors , the patronage was ordinarly conveyed by infeftments , carrying expresly , advocation , donation , and right of patronage of such kirks . such kirks then as acknowledged no patron are fully free ; and these are provided , not by presentation , but the ordinar conveyeth , pleno jure , whereby the incumbent hath right to the benefice , and full fruites : but in mensal kirks , the incumbent hath but a stipend , and these belong to the proper patrimony of prelats , who have right to the fruits thereof , as a part of their own benefice ; and therefore , are called patrimonial or mensal . patronage is also , either laick or ecclesiastick ; laick is that which belongs to secular persons ; ecclesiastick , that which belongs to church-men , as when a bishop hath the right of presentation to a kirk , not in his own diocess ; there he presents , but another must confer as ordinar , and so he is but ecclesiastick patron . . kirks patronat required for the entry of ministers , a presentation of the patron , presenting a person to the church and benefice , to be tryed by church-men having that power , and giving him the right of the benefice , or stipend , being found qualified , and collation of the office and institution therein by church-men upon tryal , without which , the incumbent could have no right ; yet where the bishop had the power of collation and institution and to confer , pleno jure , a gift from the bishop , conferring and admitting , was found sufficient without a distinct presentation and collation , july . . minister of sklate contra parochioners . but in kirks not patronat , institution and collation was sufficient . and of late , the act of ordination or admission of ministers by presbytries , served for all : but in benefices without cure , as prebendries or chaplanries , presentation is sufficient without collation and institution , march . . scot contra penman . . ministers being thus entred , have right to their benefices or stipends , during their incumbency , which they need not instruct by write , but it is sufficient to prove by witnesses , that the minister or his predecessors have been in possession of that which is contraverted , as a part of the benefice or stipend of that kirk , and that is commonly holden and repute to be a part thereof ; for there being no competent way to preserve the rights and evidents of the kirk amongst successors in office , as there is of other rights amongst other successors . the canon law attributeth much more to possession then the civil ; for thereby possessor decennalis , or triennalis , nontenetur docere detitulo : which was not only extended to instruct that the thing possessed belonged to the benefice , but that the incumbent had sufficient right ; and therefore , liberated prebendars from production of their provisions , in the case of improbation , hope , improbation , bishop of galloway and dean of the chapel-royal contra the prebendars : this presumption would not be elided by any extrinsick right ; yea , it will liberate from preduction of any written right in reduction and improbation , where there is no right extent : but if a right be found by the oaths of church-men or others , to be extent in their hands , the same will be presumed to be the right , by which they posses ; and it may be improven by a positive probation , but not by a presumptive probation , by way of certification , concluding it false , because the possessors declined to produce it , or to abide by it ; when the right is produced , any exception may be proponed upon any thing contained therein ; and therefore , an annualrent of ten chalders of victual , mortified by the king to the chapel-royal was excluded by a redemption thereof , granted by the king voluntarly upon payment , when the bishops were supprest , in respect the mortification boresuch a right mortified , which had therein a reversion ; and therefore , after , redemption , thirteen years possession could not relieve , the right being redeemed : neither could the act of restitution of bishops , restoring them to the rights and possession they had before . seing that could not hinder another party ro redeem , july . . bishop of dumblain contra francis kinloch . a ministers stipend , as to the use of payment and quantity , was found probable by witnesses without write , in possessorio , as was lalely found , ministers relict contra earl of caithness . as to the time sufficient to give a possessory judgement in benefices or stipends upon possession , without evidents in write ; but being holden and repute as a part of the benefice : the canon law , regula cancellariae , . determines it to three years peaceable possession , which is rather as to the incumbents right ; that after three years possession , he cannot be questioned during his life . i find not our decisions so clear in it , but it cannot exceed seven years possession , which gives a possessory judgement in infeftment of property , &c. it was so found , november . . james petrie contra john mitchelson , the like about that same time , mr. alexander ferguson contra lievtennant collonel alexander agnew . ministers also during their incumbencie , may set tacks according to the rules for setting of tacks , by beneficed persons before exprest , which are valide and effectual , though the incumbent be deprived or transported , par . . cap. . . ministers stipend are ordinarly allocat out of the teinds of particular lands , and when they are allocat , all intrometters with the teinds of these lands allocat are lyable for the stipend , not proportionally with other intrometters , but in so far as their whole intromission can reach , even though they made payment before they were charged by the minister , which they alledged was bona fide , to the heretor or tacksman , february . . kirk contra gilchrist . and if there be no allocation , the stipend is a burden , affecting the whole teind , out of which it is modified ; and the minister may take himself , either to the heretor or possessor , spots . kirk-men , mr. andrew ker contra william gilchrist . december . . mr. j. hutcheson contra earl of cassils : in which case it was found , that the minister might take himself to any of the heretors of the paroch for the whole teind , inso far as his modified stipend went , seing he had no locality , and that the heretor distrest , behoved to seek his relief proportionally from the rest . and a minister was found to have right to pursue an heretor for his stipend , payed out of his lands ; and that accepting an assignation to a part of the tennents duties , did not liberat the heretor further then what the minister received , unless the assignation bore , in full satisfaction , november . . mr. john rutherford contra murray of skirling . yea , though an heretor was but an appryzer of the stock and teinds , he was found lyable personally , though he had not intrometted , and though he offered to assign as much of the rent , december . . sir john prestoun contra sir john ker. and though the intrometter was but a wodsetter , both of stock and teind , having no more but his annualrent , and there being sufficient teind beside the wodset , march . . mr william keith contra james gray and others . but where a liferenter possessed , she was only found lyable , not the fiar , june . . menzies contra laird of glenurchie . . but teinds before valuation , are only due according to the cropt and goods , without restraining the heretor in the free use of his ground , who may leave it all grass , though it had never been so long corn , and may stock it with yeld goods , which will yield no viccarage ; and therefore , having inclosed a parcel of ground , and sown it with kail , carrets , and herbs , the same was found teind free , unless these were accustomed to pay teind in that place , june . . alexander burnet contra william gibb . , even after valuation , teinds are not debita fundi , nor do affect singular successors , as to bygones before their right , february . . earl of callender contra andrew monro . . the legal terms of benefices and stipends , whereby they are due to the incumbents , are whitsonday at which the fruits are held to be fully sown , and michaelmess , at which they are presumed to be fully separate ; and therefore , if the incumbents entry be before whitsonday , he hath that whole year , so if he be deposed or transported before whitsonday , he hath no part of that year , if after whitsonday and before michaelmess , he hath the half , july . . mr. patrick weims contra cunninghame . if after michaelmess , he hath the whole : but if the incumbent die he hath further interest in his benefice , even after his death . . ministers dying , their wives , bairns , or executors , have the annat of their beneficeor stipends , which is acknowledged to be their ancient right , parl. . cap. . whereby it is declared , that beneficed persons dying , shall have right to the fruits of their benefice upon the ground , and the annat thereafter to pertain to their executors : but the question is , what the annat importeth , there is a letter concerning it written by the king to the general assembly , and ratified by them . all do agree , that if the incumbent die after michaelmess , he hath right to that whole year by his service , and to the half of the next year by the annat : but if he die before michaelmess , he hath right to the half of the stipend , if he survived whitsonday , proprio jure , and to the other half , as the ann which his executors have right to ; but all the question is , when the incumbent doth not only survive michaelmess , whereby he hath the half of the next year ; but if he survive the last of dec. whether he hath right to the whole stipend of that year ; as to which , that rule hath been sustained , in favorabilibus annus incaptus habetur , pro completo ; & therefore , the ann was the whose year , which was so decided , july . . executors of mr. james fairlie contra his parochioners ; but the anns of bishops and ministers , are now brought to a much more equal way by act of 〈◊〉 , august . . whereby it is statute , that the ann in alltime thereafter , shall be half a years rent of the benefice or stipend , over and above what is due to the defunct for his incumbency , viz. if he survive whitsonday , he shall have the half of that year for his incumbency , and the other half for his ann , and if he survive michaelmess , he shall have the half of the next year for his ann ; whereas before if he survived michaelmess , and lived but till the last of december , his ann was but the half of the next year ; but if he lived till the first of january , his ann was that whole year , whereby the next incumbent had nothing to expect for a year , during which the kirk was like to ly vacant . the annat divides betwixt the relict and nearest of kin , if there be no bairns , and is extended to the profite of the gleib , if there be no new intrant , july . . elizabeth scrimzour relict of mr. john murray contra his executors : but where there is an intrant , the gleib belongs to him , and is not part of the ann , nor did belong to the former minister , unless it had been sown by him , and the cropt upon it , at the entry of the intrant , july . . mr. john colvil contra lord balnterino . where it was also found , that the defunct had his ann , though he had neither wife nor bairns . . to conclude this title with the interest of patrons in benefices , we have already shown their original and kindes , their interest in the benefices or stipends , is , first the right of presentation of a qualified person for the ministry , whom the presbytrie behoved to try and admit , if he were qualified : whereanent the patron might appeal to the synod , and thence to the general assembly ; and if that person be still rejected , he must present another , which must be done within six moneths after the vacancy , may come to his knowledge : otherways the kirk may admit a qualified person for that time , par. . cap. . par. . cap. . par. . cap. . since the restitution of bishops ; presentations must be directed to them in their several diocesses . secondly , during the vacancy without the patrons default , but by the default of the presbytery , refusing to admit a qualified person , he had power 〈◊〉 detain the whole fruits of the benefice in his own hands , as is clear in the said last act , par. . cap. . thirdly , patrons are tutors and guardians to their church , without whose consent the incumbent can set no tack longer then for three years , par. . cap. . patrons had also an indirect interest in their own benefices , where the ministers had an ordinary stipend , settled to them by long custom or modification , yet far within the worth of the benefice . the patrons used to present them to the benefice , but withal took tack of them to confident persons to their own behove , carrying the superplus of the profite of the benefice , over and above the accustomed stipend of their predecessors , which hath not been quarrelled as a symoniacal paction or dilapidation . it seems also , that patrons for resemblance of personal patronages ought to be alimented out of the benefice , if they come to necessity , according as their benefice may bear , though there hath occurred no occasion to question or try this point , but by the act of par. july . . session . c. . the power of disposing of the vacant benefice or stipend , was taken from the patron and stated in the presbytrie and paroch to be disposed upon for pious uses and by act of par . . c. . the power of presentation is also taken away , yet thetitle 〈◊〉 unsitly design that act an abolution of patronage , for there is no more there taken away but the power of presentation : but on the contrary , where the patron could have no interest in the benefice of teinds , but indirectly as aforesaid , that declares the heretable right of the teinds , over and above the stipend , to be in the patron , but with necessity to dispone the same to the heretors , for six years purchase , but these acts are now rescinded , and patrons returned to their ancient rights , but they are excluded from the fruits in the vacancie , which are applyed to pious uses , for seven years , and thereafter during his majesties pleasure , par . . cap. . and the vacancies for seven years after the year . are applyed to universities , par . . cap. . ecclesiastical benefices were so ordinarly patronat , that there were scarce any free , but all were presumed o be patronat ; and where the right of patronage did not appear to be established in any other , the pope was presumed patron before the reformation ; and after the reformation , the king is presumed patron , jure corona , where the right of another patron appeareth not . there are other patronages belong to the king , jure privato , as when the king or his predecessors acquired any rights of patronages from any private person ; or when the king or his predecessors founded or doted the benefice ; or when any lands or baronies fall in the kings hand as superiour , by recognition or forefaulture , all such having annexed thereto , or comprehended therein , the advocation , donation and right of patronage of any kirk , the king doth thereby become patron ; all those patronages are at the kings dispose , and transmissible to any subject by the kings proper deed , either annexing or incorporating the same in baronies or lordships , or by distinct gifts , for the patronage doth ordinarly pass as annexed to lands , charters of burghs , baronies , or lordships , yet they may pass without infeftments , as jura incorporalia . but there are other patronages which by act of parliament , are annexed to the crown , either expresly , or when baronies , lordships , or benefices are annexed to the crown , if therein patronages of any benefice were comprehended , they are annexed though not exprest ; for barony or benefice are nomina universitatis , being united and erected ; and therefore , the barony or benefice , without expressing patronage , do carry the same by resignation , appryzing , adjudication , recognition or-forefaulture , as well as salmond fishing or milns : but these patronages being a part of the annexed patrimony of the crown , cannot be disposed by the king , without a publick law , or by a special act of dissolution for particular reasons of publick good , anterior to the kings gift and ratifications in parliament , which pass of course , and are accounted but private rights , which will not establish the same , though in the ratification there be a clause of dissolution , which is always understood to be as a private right and not a publick law. the patronages of all bishopricks belong to the king , who designs the person to be bishop , and though the chapter may use the formality of election , they do not refuse the kings designation : the order of this election is prescrived , parliament . cap. . where the dean and chapter are ordained to choose the person , whom the king pleases to nominat and recommend , he always being an uctual minister of the kirk , who being elected , hath sufficient right to the spirituality of his benefice , but not to the temporality , till he have a charter from the king , and do homage , and swear obedience to him ; but the arch-bishop of saint andrews is to be elected by the bishops of dunkel , aberdene , brichen , dumblane , ross , murray , orknay , caithness , the principal of saint leanards colledge , the arch-dean of saint andrews , the viccars of saint andrews , leuchers and couper , or most part of them , parliament . cap. . and by the same act the arch-bishop of glasgow is to be elected by the bishop of galloway , argile and isles , and the ordinar chapter of glasgow , or most of them , the bishop of galloway being conveener of the electors ; and now the bishop of edinburgh since that bishoprick was erected , is by the erection made an elector and conveener . the king is also patron of many laick patronages , and there are several other laick patronages belonging to subjects , ecclesiastick patronages belong now only to the bishops , to whom some kirks are patrimonial or mensal , the fruits whereof are a part of the bishops benefice , and the several paroch kirks are not distinct benefices , but partes beneficii , but most be served by the bishop himself , or a minister who is a stipendiary , and by the . act parl. . all ministers are appointed to be provided with sufficient stipends , being eight chalders of victual , or eight hundereth merks at least , except in singular cases , referred to the commissioners for plantation of kirks , who are authorized as commissioners of parliament , to value teinds , modifie stipends , and grant localities for fixing thereof upon particular lands . the bishops have the patronage of some kirks without their diocies , and do present to the bishop of that diocie , but if the bishop should acquire any patronage of a kirk within his own diocie , that kirk cannot be patronat , but becomes free , and is conferred by the bishop , pleno jure , for he cannot present to himself , yet by the collation , the person collated is not a stipendiar , but is parson or viccar , and hath the full benefite of the fruits , except in so far as they are restricted by tacks , set lawfully by them or their predecessors . the common kirks which were to be provided by the bishops and their chapters in common , were not properly patronat by presentations , but by nominations and collations , yet the incumbents were not stipendiaries , but enjoyed these kirks as benefices . but after the reformation , when bishops and chapters were supprest , these common kirks were declared to be of the same nature with other parsonages and viccarages , and to be conferred by presentations of the lawful patrons and collation , whereby they become then patronate ; the king , or these to whom he gave right being patrons ; but after the restitution of bishops and chapters , parliament . cap. . these common kirks were restored to their ancient condition . colledge kirks were benefices , whereof the king was patron , except some few which belonged to subjects , chaplainries , and altarages were under patronage of the founders or their successors . before the reformation there were but few inferior benefices below prelacies , viz. collegiat and common kirks , parsonage and viccarages , which are but very few , and many be found by the stent rolls , whereby eveny parsonage and viccarage are taxed apart , as distinct benefices ; the far greater part of all the teinds of scotland did belong to prelacies , such as bishopricks and abbacies , and all the paroch kirks which belong to them , are not distinct benefices , but a part of their patrimony , and were served by themselves , their viccars , or their substitutes , without any fixed maintenance , but ad placitum , so that there was no patronages of all these kirks , and the ordinar provision thereof was , the viccarage or small teind , and sometimes viccar pensions out of the parsonage teinds . after the reformation all monasteries being supprest , they return to the king , jure coronae , as to their whole benefices , both the teinds or spitituality , and lands and baronies or other temporal rights ; but the king gifted the most part of these benefices , both spirituality and temporality , to the nobility and gentry , and erected the same in temporal baronies and lordships , but with burden of competent provisions to the ministers of all the kirks , which were parts of the patrimony of the saids great benefices , whereby the lords of erection , coming in place of these monasteries , had right to all the teinds of the kirks , which were the patrimony thereof ; and the abbots and priors , did nominate their viccars in these kirks , so the lords of erection did nominate the ministers to the same , and presented them to the church-men , to be tryed and admitted , and thereupon assumed the title of patrons , though properly they were not such , because the ministers had no benefices , but were stipendaries , having no rights to the fruits till the year . when the temporalities of all benefices belonging to arch-bishops , bishops , priors , prioresses , or whatsomever ecclesiastical benefite belonging to any abbay , cloister , friers , monks , channons , common-kirks , and collegiat kirks , were annexed unto the crown , with several exceptions , act . par . . and though that act seem only to annex the temporality then belonging to these church-men , and not to extend to the temporalities already erected to secular persons , yet by the exceptions of the many erections therein contained , it hath been ever held as an annexation of all the temporalities that did belong to these benefices : but the spirituality or teinds , are declared not to be annexed , but by the act , , parliament . erections either of kirk-lands or teinds in temporal lordships , after the said act of annexation , are declared null , except such parts and portions of the kirk-lands , already erected in temporal lordships , to such persons , as since the act of annexation , have received the honours of lords of parliament , and have sitten and votted in parliament , as temporal lords , whence the question ariseth , whether that exception derogates only from this act , or also from the said general act of annexation , but by the . act parliament . all erections since the said general act of annexation , not excepted in the said act , are declared null , which doth also leave a doubt as to to the erections , preceeding the said act of annexation ; and by the second act , parliament . restoring bishops , it is declared for the better satisfaction of his majesties subjects and faithful servants , whom his majesty hath rewarded with erections , feues , patronages , teinds and confirmations of teinds , patronages and other rights of abbacies , and that they may not be put in mistrust , therefore ratifies the hail erections , infeftments , confirmations , patronages , tacks , and other securities of benefices , not being bishopricks given , disponed , and confirmed by his majesty , during the parliament , . before or sinsine , agreeable to the saids laws and acts of parliament , and faithfully promits , in verbo principis , never to quarrel the same , which seems to give further ground to erections , though qualified with that provision , that the saids erections be conform to the acts of annexation and laws made sinsine , whereby the same might only extend to the erections , excepted and warranted in the said act of annexation , which excepts several erections formerly made , and leaves some kirk-lands to the kings dispose , by subsequent erection : in this case did king james leave the condition of kirk-lands , teinds and patronages . king charles the first coming to the crown , and being informed of the great benefite his father might have made by suppressing of popery , and the popish benefices , if he had not gifted them away before he consider , did resolve to recover the same to the crown ; and therefore made a very ample revocation of all deeds done in prejudice of the crown , or any of his royal progenitors , and in the year . there was a reduction intended of all erections of kirk-lands , teinds , patronages , which did pertain to whatsomever abbacy , priory or other benefice , and acts of parliament ratifying the same , with all infeftments of heretable offices or regalities : which revocation and process having made a great noise , the king gave commission to several noblemen , and others , to endeavour an agreement with these who had right to erections , or any right to kirklands or teinds , whereupon there was a submission made by many persons who had right to kirk-lands and teinds , containing a procuratory of resignation in the kings hands , ad perpetuam remanentiam , of the superiority of all lands , and other temporal rights , pertaining to whatsomever erection of the temporality of benefices , reserving and excepting the property of all the saids lands , and others whereunto they had right , before or after ; the saids erections , paying the ancient feu-duties to his majesty , that were payable to kirk-men , and that such demains and mensal lands of the saids benefices , as were never set in feu or rental by the ancient titulars , before the act of annexation , nor by the king , and were then possessed by any of the lords of erection , should be feued to them and no others , for such feu-duties as his majesties commissioners should appoint ; they did thereby also submit to his majesty , what satisfaction he should give them for the feu-duties , and other constant rent of the superiorities resigned ; and all rights of teithes that they had , that his majesty might appoint the quantity , rate and price thereof , to be payed by the heretors to the saids titulars of erection , with a burden of annuity to the king , excepting the teinds of the surrenderers own proper lands , being always subject to his majesties annuity : which submission his majesty accepted , and there followed thereupon an instrument of resignation at whitehall , may . . there was also a submission made by the bishops , of all teinds belonging to them , or their patrimonial kirks , providing they be not damnified in their benefices , as they were then possessed , either in quantity or quality , whether the samine were payed in rental bolls , or drawn teind , so that the submission did only reach to teinds that were in tack , or other use of payment , and whereof the bishops or beneficed persons , were not then in possession by rental bolls , or drawn teind ; this submission was in anno . there is also a submission by the burrows of their teinds , in the same year ; and a fourth submission , by several persons having right to teinds , in anno . the king did pronounce his decreet arbitral , upon the submission of the lords of erection , upon the second of september one thousand six hundred and twenty nine , whereby he ordains the lords of erection to have ten years purchase for the feu-duties ; and all their constant rents , consisting of victual or money ; the victual being reckoned at an hundred merks the chalder , deducing so much of the feu-duties , as were equivalent to the blensh-duties , contained in the infeftments of erection , for which nothing was to be payed ; and allowing the lords of erection to retain the feu-duties untill they were redeemed : his majesty did also decern , that each heretor shall have his own teinds , that such as have right to other mens teinds , shall after valuation thereof , whereby the fifth part of the constant rent , which each land pays in stock and teind , is declared to be the teind ; and where the teind is valued severally , that the heretor shall have the fifth part of the yearly value thereof , deduced for the kings ease ; and the price of the said teind for an heretable right , was made nine years purchase : and for other right of teinds , inferiour to heretable rights proportionably according to the worth thereof , to be determined by a commission to be granted by his majesty to that effect , and that both for tacks of teinds and patronages . there are also decreets by his majesty upon the other submission , to the same purpose , and by the tenth and fourteenth act , par. . the superiorities of all kirk-lands are annexed to the crown , except these belonging to bishops , with the feu-duties of the said superiorities , reserving to the lords and titulars of erections , who subscribed the general surrender of submissions . their feu-duties till they be redeemed at ten years purchase , and reserving to them the property holden of his majesty , for payment of the feu-duties contained in the old infeftments , preceeding the annexation . by the . act par. . the king restricts his general revocation in october . registrate in the books of secret council , february . . in a proclamation then emitted ; and another , july . . to the annulling all pretended rights to the property of the crown , as well annexed as not annexed , whereof an account hath been made in exchequer , and of the principality unlawfully disponed by his predecessors , against the laws and acts then standing ; and to the annulling of erections and other dispositions of whatsoever lands , teinds , patronages , and benefices , formerly belonging to the kirk , and since annexed to the crown , and any other lands and benefices , mortified to pious uses , and of regalities and heretable offices , and the change from ward to blensh or taxt-ward , since the year , . upon this progress it may be questioned , whether the patronages that formerly belonged to church-men , and were annexed to the lands , burrows or benefices , and thereafter were erected in temporal estates , do belong to the king or lords of erection . and next , whether these more improper patronages of the patrimonial kirks of abbacies , whereby the lords of erection coming in the abbots place , do claim the right of presentation , or nomination of stipendiary ministers to these kirks , do belong to them or the king. as to the first , there seems less difficulty that the patronage which did belong to abbots of kirks , which were not of their patrimony , but whereof they had only jus presentandi , do belong to the king , because such patronages are annexed to the crown , by the general act of annexation , which though it does not mention patronages , yet the barony or benefice wherein such patronages were comprehended , were expresly annexed : and barony or benefice , being nomina universitatis , will comprehend patronages incorporate therein , or annexed thereto , so that without dissolution , no subject can pretend right to the ecclesiastick patronages of abbots , priors , &c. and as to the lords of erection , who fall under the exceptions of the general act of annexation , they having submitted and surrendered all their titles of erection to the king , and particularly their patronages ; and thereupon the king having by his decreet arbitral , ratified in parliament , reserved only to them their property , lands and teinds , and feu-duties till they be redeemed ; and the superiority being again annexed , which is the dominium directum of these ecclesiastical baronies , the ecclesiastick patronage of the abbots comprehended , in nomine barroniae , do therewith belong to the king unless they have been disponed after dissolutlon ; or a subjects title to the advocation , donation , or right of patronage of such kirks , be perfited by prescription ; for the act of prescription , . hath no exception of the kings right , to which the prior act that the king should not be prejudged by the neglect of his officers , doth not extend , but that interruption within the fourty year , is requisite even for the king , the form whereof was ordered by the lords of session , and approven by parliament , . cap. . but there is much more difficulty as to the other point concerning the patronage of these kirks , that were parts of the patrimony of the abbots , which before the reformation were not kirks patronat , but patrimonial ; but thereafter being dissolved , and declared distinct paroch kirks . the abbots power of nomination of viccars in these kirks , became to be exercised by presentations to the kirks , which presentations were given by the king to some kirks , even where there were erections ; but in most erections , the lords of erection did present , as coming in place of the abbots , and did in their original or subsequent right , insert the patronage of some , or all of the patrimonial kirks of these abbacies ; and where the right of patronage is not exprest , the lords of erection have but small ground to pretend to these ; and where they are exprest and perfited by prescription , they are secure , so that the question will remain as to the power of presentation , to the patrimonial kirks of abbacies , where prescription hath not cleared the question , but that sometimes the king , sometimes the lords of erection have presented , which was largely debated in november . concerning the patronage of the kirk of allan , whereunto the laird of watertoun had presented as deriving right to an erection prior to the act of annexation , and having desired from the council , letters to charge the bishop to grant collation upon the foresaid act of parliament , ordaining bishops to try and collate upon the patrons presentation , the matter was remitted by the privy council , to the lords of session , in respect that the officers of state , did claim right to that patronage , as belonging to the king , whereupon the lords did at first , sist any further progress in admitting either the person presented by the king , or by watertoun , till the matter were discussed , but after hearing , the cause at length in their presence , wattertoun having alledged that his author had an erection , bearing the patronage of this kirk , per expressum ; and that such patronages were not annexed to the crown , because they were not comprehended in the abbots rights ; such kirks not being then patronat but patrimonial , and that the king in his decrect arbitral had determined nothing anent patronages , but that the lords of erection had always enjoyed the same , and that the lords of erection retaining the right of the teinds , the patronage belong to them as consequent to the teinds , out of which the provisions for the kirk is payable , and it being answered for the king , that though the abbots had not the formal right of presentation , because the kirks were not then patronat , yet they had the right of nomination , or substitution of the viccars who served in these kirks , in place of whom are now the stipendiary ministers ; these new patronages arise form the dissolution of these abbacies into distinct parochs , must belong to the king , and the power of nomination or presentation of these stipendiars , was comprehended in , and annexed with these benefices to the crown , by the first act of annexation , but especially by the annexations , . whereby upon the surrender of the lords of erection , of all their rights , and specially of their patronages ; the king by his decreet arbitral , had decerned to them only ten years purchase for the feu-duty , and nine years purchase for the teind , they could pretend to no more , and so to no right of patronage . likeas the king in the interruption made by the act of parliament . did expressly declare , that he will insist in his general revocation , as to the particulars enumerat in the act of interruption , whereof patronage is one : in this debate the lords being desirous that the matter might be determined upon the clearest grounds , and to know if prescription had cleared the matter , and either party having alledged possession , the lords before answer , ordained either party to adduce all the evidence they could , whether the king or wattertoun and his authors had been in possession , how long and what way . title xix . tacks , where , of rentals , tacite relocation and removing . . the nature of tacks . . how tacks become as real right , effectual against singular successors . . who may grant tacks . . how tacks may be set . . the tenor of tacks . . the effect of obliegements to set tacks . . tacks become real rights by possession . . tacks in wodests after redemption become valid . . the extent and effects of tacks . . tacks-men in possession need not dispute the setters right , disputing as heretable proprietar . . the effect of tacks , whereof the tack duty is payable to creditors . . tacks are good active titles for mails and duties . . the effect of tacks set to husband and wife . . kinds of tacks . . rentals . . the effect of assignations or sub-tacks of rentals or other tacks . . the effect of sub-tacks , as to tutors and donatars . . the effect of rentals in court books , or rental books only . . the endurance of rentals . . the effect of grassoums . . how far rentals become void by alegnation , assignation or subtack . . defect of sub-tacks . . tacite relocation . . how tacks fall in escheat . . tacks sleep during ward and non-entry of the setter , and are valid against his liferentesheat . . tacks are strictissimi juris , and extend not to heirs , or voluntary assignays , or sub-tacks , or removing , but when exprest , except tacks for liferent or equivalent . . tacks without ish are null . . how far tacks to endure till a sum be payed are valid . . tacks are null without a tack duty . . tacks are valid though not expressing the entry . . tennents must labour and not waste or open the ground for any minerals . . tacks become void by two years not payment of the tack-duty . . or for not finding caution to pay the tack-duty bygome , and in time to come . . or by the tennents renounciation . . by contrary consent of both parties . . by deeds contrary to the tack . . or by removing . . summar removing without warning , in what cases . . the old way of removing tennents . . warning of tennents to remove . . the active title in removeings . . exceptions against removings , not instantly verified , are not receiveable till caution be found for the violent profites . . defences against removing and replys thereto . . violent profites . . succeeding in the vice of tennents removed . . atack of it self is no more then a personal contract of location , whereby land or any other thing having profite , or fruit , is set to the tacks-man for enjoying the fruit or profite thereof , for a hyre , which is called the tack-duty ; which therefore did only obliege the setter and his heirs , to make it effectual to the tacks-man , but did not introduce any real right , affecting the thing set , and carried therewith to singular successours . . but so soon as the thing set ceassed to be the setters , the tacks could not reach it : thus it was with us tillthe statute , par. . cap. . whereby purchasers and singular successors were disenabled to brake the tacks set to the tennents : by this statute , tacks become as real rights , affecting the ground : and because they cannot come the length to be esteemed as rights of property , they are ranked here amongst servitudes personal ; for as liferent-rights are real rights , putting a servitude upon hereditaments to the person of the liferenter , during life , whereof a liferent-tack is a kind ; so other tacks do subject the thing set to the tacks-man for a time , and affect the same , though it pass to singular successors , albeit the statute only expresseth , that buyers shall not break tacks , and is in favours of the poor labourers of the ground , for whose security it was chiefly intended ; yet it is extended against all singular successors , whether by sale , exchange , appryzing , adjudication , or any other way , as the statute beares , in whose hands soever the lands come ; and also in favours of all tacks-men , whether they be labourers of the : ground or not ; whereby tacks are now become the most ordinary and important rights ; and if the great favour of this statute made them not in other thingsto be strictly interpret , they would render infeftments of small effect . that we may proceed orderly in this matter , we shall consider ; first , the constitution of tacks . secondly , the extent and effect of them . thirdly , the kindes of them . fourthly , the restricstions and defects of them . fifthly , the avoiding and removing of them . as to the first , tacks are also called assedations , as a setting or setling of the tenement in the land , the english call them leasses . some tacks are also called rentals , as being the constitution of a fixed rent , and they are of longer endurance then ordinary tacks , being of one or more liserents , and have somewhat special in them , of which hereafter . . as to the constitution of a tack , consider ; first , who may constitute it . secondly , of what . thirdly , how. for the first , to the constitution of an effectual tack , the setter must not only have all the capacities requisite to contract , but he must have right to the thing set , and power to administrate , which being tacks , may either be granted by commission , if it be special , as to the tacks , or at least as to matters of great importance ; and a general clause for others , or otherways by tutors , curators , or other administrators of the affairs of others , concerning whom craig lib. . dieg. . moveth and removeth this doubt , whether tutors , &c. may set tacks for longer time then during their office , which he resolveth negatively , even though it were without the minors detriment , continuing the ancient tack-duty , seing he is so far hurt as not to have the free disposal of his own : the subject whereof , tacks are ordinarly set are lands ; but it may be any other thing having fruite or profite , as a fishing , an office , or a casuality . as to the manner of constituting tacks , they must be considered in themselves ; first , as personal rights . secondly , as by the statute becoming real ; as they are personal rights , the consent of the setter , and tack-man agreeing in the rent , is sufficient . . but as tacks are become real rights , there is a necessity of write , except in a tack of one year , which may be verbal , but if the agreement be for more years , the setter may resile ; and though the tacks-man be in possession , if he resile , it will have no effect as to subsequent years , july . . alexander keith contra his tennents ; the like though the tennent possessed and builded houses conform to the agreement , yet the penalty of paying a years rent by the failzier to the observer , was found to stand , july . . mr. andrew skein contra but if once there be a tack , the setters promise not to remove the tennent during his life , was found effectual , and not to be resiled from , nicol. de migrando , lumbsden contra black. . the write requisite to constitute a tack , requireth not many solemnities ; but if the thing set , the parties , the rent and the time , be cleared , the tack will be valid : it was ordinarly granted by the setter to the tacks-man for such a duty , without any mutual obliegement upon his part , like unto a charter ; but because the tennent not being bound , might at the end of any year before whitsonday , renounce such a tack and be free , as being in his favour , therefore they are now ordinarly by contract , whereby the tacks-man as well as the setter , is oblieged to stand thereto . . craig saith in the fore-cited place , pactum de assedatione facienda , & ipsa assedatio , parificantur , praecipue si possessio sequatur , which is unquestionable as to the setter and his heirs ; and was also found against a singular successor , by a personal obliegement in a contract of marriage , providing lands to a wise , and warranding the same free of all teinds , except such a quantity which was in use to be payed , whereby a posteriour assignation to the tack of these teinds was excluded , march . . laird of finmouth contra weyms . the like of a tack and decreet arbitral , decerning a tack to be granted : this was in a spuilzie , hope , spuilzie john crawford contra . as a tack becometh a real right , it must necessarily be cled with possession , but requireth no seasine or instrument , or other solemnity , july . . wallace contra harvie , january . . laird of pitsligo contra philorth . the like , though the tacks-man was in possession , yet not by vertue of the tack , but by vertue of a wodset , though the tack was renewed the time of the time of the wodset , hope removing , walter ord contra tennents of fydie ; and therefore , a posterior tack being first cled with possession , was preferred to a prior tack , june . . mr. john mcmillan contra gordoun of troquhan . . yet a tack after redemption of wodsett lands , is valide against singular successors , as a part of the reversion , though it attain no possession before the setter be denuded : but it is contrary in a back-tack , appointed to follow a redemption of an annualrent for it , and 〈◊〉 lands are diverse , and the possession thereof diverse , nicolson removing , gawin hamiltoun contra alexander and others ; but the prorogation of a tack is the renovation of it , and hath the same effect , as a new tack of that date , for the years in the prorogation . . as to the extension and effect of tacks , they are little less then of infeftments , for thereby the tacks-man is maintained against all parties having interest till the tack be out-run , and be warned , even though set by a liferenter , it will maintain the tennent against the fiar , either from removing till warning , or from paying more then the liferenters tack duty , though it be small , july . . mr. robert bruce contra captain bruce . yea , though the tack-duty was elusory , set by an appriser to a person being no labourer of the ground , february . . blaues contra winrham . the reason why tacks by liferenters are effectual , for the year in which the liferenter died ; because by act of parliament , tennents can only be warned to remove fourty dayes preceeding whitsonday ; so that if the liferenters live till thirty nine dayes before whitsonday , their tennents cannot be removed , but brooks per tacitam relocationem , till the new time of warning . . a tack hath also the benefit of a possessory judgement upon seven years peaceable possession , as an infeftment , without necessity to dispute the setters right , july . . bishop of edinburgh contra gilbert brown , which was found where the tack did bear to be granted by the setter as heretable proprietar . otherwayes , a tack by a liferenter , tennent or donator , might claim the benefit , december . . mr. patrick home contra sir laurence scot. and therefore , if it were alledged , that the setter or liferenter had any other temporary title , it would be admitted without reduction , if the liferenter or beneficed person granter thereof were dead . . a tack set by an heretor for a tack-duty to be payed to his creditors , was found a real right effectual to the tennents ; but whether it would be found a real right in favours of the creditors in the same cause , it was first determined negativè , and thereafter affirmative : but it is not like , the lords would continue it , not being the habile way to secure creditors , and being a great mean of insecurity to purchasers , february . . samuel contra samuel . the negative is also observed by spots tacks , james morison contra brown of nunlands . a tack was preferred to an apprising , whereof the denunciation was fix dayes after the date of the tack , though the apprising was led before possession upon the tack , march . . peter blackburn contra william gibsone . . a tack is a sufficient title for mails and duties , and against all poffessors , and it is obligator against the setters heir for the profit of the land , though the tacksman was never in possession , nor used diligence therefore during the setters life , which was a long time , july . . porterfield contra ker ; and in some cases , it is a good title for removing . . a tack set by a husband and his wife , whereof the duty was payable to the longest liver of them two , found to give her right to the tack-duty after his death against his heir , though she had no other right of the lands , and was otherwayes sufficiently provided , february . . home contra hepburn . a tack set to a man and his wife for nineteen years , found to belong to the wife as liferenter , if she survive , and not to be disposable by the husband without her consent , spots . marriage , william gourlay contra jean megill . . as to the third point proposed , concerning several kindes of tacks , they are either verbal or by write . liferent-tacks are for certain years ; ordinary tacks or rentals , principal tacks or sub-tacks , express tacks or by tacite relocation ; and these which are set by wodsetters to the granters of the wodset , are called back-tacks , amongst which there are few specialities but what concerns rentals , sub-tacks or tacite relocations . . a rental is a tack set to kindly tennents , which are the successors of the ancient possessors , or these who are received by the heretor , with the like priviledge as if they were ancient possessors : and therefore , when tacks are set to persons , acknowledging or constituting them kindly tennents , they are equiparat to these that are set expresly under the name of rentals . . such tacks are understood to comprehend more kindeness and friendship in the tennent to his master , then other tennents ; and therefore , the rentaller may not assign them , nor introduce a sub-tennent , unless the rental bear expresly that power , but may himself remain upon the ground as colonus , the same being in his own labourage . and rentals are strictly interpret as to this point , but are more favourably extended then other tacks , as to any other point ; because of the kindness and friendship designed to the rentaller thereby : and no tack is accounted a rental unless it bear so , or that the teunent is acknowledged as kindly tennent . and albeit after the expiring of rentals , there successors have no right to maintain them in possession ; yet frequently of favour they are continued , and pay grass-sums at the renovation of their rentals , wherein they have ordinarly considerable ease . . and therefore , the ordinary tacks must contain an express and terminat endurance , otherwayes they are null , not only as to singular successors , but even as to the setter and his heirs , because they are not constitute habili modo . and therefore , if they have no time , they laste but for a year ; and if they have no determinate time of ish , they last no longer ; and they do not ordinarly give power of assignation or sub-tack , unless this be exprest : yet the granting of them does not annul the tack , but only the assignation or sub-tack , without warrant annuls these , but they annul rentals , like to the alienations ofward-vassals . . rentals do require write , not only as a probation , but as a solemnity in their constitution , and can be granted by none but the heretor of the ground ; but if they be renewed by tutors for the accustomed grassums , it may be accounted as an act of lawful administration , much rather then that tutors should have power to expell the kindly tennents . it hath not come in controversie , whether donatars of ward , non-entry , or liferenters may expel kindly tennents : or whether their title would not be relevant to defend in removings against them , though not against the heretor , wherein this would make for them , that all these temporary possessors have not , plenum dominium , and can but make use of the fee as the proprietars did , though they may out-put and in-put ordinary tennents . the old decisions have varied whether a rental be sufficient , being in the heretors court or rental book , though the rentaller can show no original subscribed by the heretor ; yet there are decisions for it , more then against it , july . . maxwel contra grahame . nicol. removing , lady lugtoun contra hertennents . . some old decisions sustain rentals only for a year , when they mention no endurance , though they be set expresly as rentals , which do not quadrat to the nature and design of rentals , whereby the rentaller being entered , is only to be understood to be for his life ; and his successors ever to be in his masters power , to renew or not to renew , according to the rentaler and his successors carriage , except the contract be very clear and express ; and therefore , a rental set to the rentaller and his heirs , without expressing a certain number of heirs , was found only to stand during the life of the rentaller , july . . laird of aitoun contra lady wedderburn . hope rental , lord seatoun contra his tennents . nicol. removing , laird of corsbie contra donaldson . and where a rental bore to heirs indefinitely , the right of the first heir wassustained by the custom of the barony , march . . earl of galloway contra burgesses of wigtoun . and a rental bearing to the rentallers heirs heretable , ad perpetuam remanentiam , was sustained as to the first heir of the rentaller , without necessity to alledge , custom so to set , march . . achannay of kirkdale contra aitoun . albeit the tenor of it was contrary the nature of a tack , and might have been excluded , as to any heirs , and sustained only as to the rentaller himself , unless the custome of the barony had altered the case , which , in dubio , is always to be respected . . grassum do presume kindliness ; and in some baronies these are renewed , both at the death of the heretor , and at the death of the tennent ; but more ordinarly at the death of the tennent only ; yet in either case if the grassum be received from the tennent , and thereby he acknowledged by write , as a kindly tennent , he cannot be removed by the heretor or his heirs , even though he had not a formal rental , because the matter is not intire by receipt of the grassum ; and therefore , there is no locus penetentiae , upon restoring thereof , especially as to the successors of old tennents , paying grassum before ; and therefore , rentals expresly so granted ; or to tennents constitute kindly tennents , though they contain no ish , should not be annulled for want of an ish , which is implyed in the nature of a rental to be a life-rent ; and it would be far contrary to that favour , that in other cases is allowed them to sustain them , but as verbal tacks , lasting for a year ; upon this ground it is , that a rental granted to a man and his wife , not bearing , the longest liver , nor any issue was yet found to constitute them both rentallers , during their life , and their wife surviving to enjoy the same , february . . laird of ley younger contra kirkwood . . rentals do ordinarly contain a clause , not to subset , assign , or annalzie , which if it be contraveened , not only the assignation or sub-tack is void , but the rental it self , february . . john hamiltoun contra thomas boid . the like being subset , as to a part , pro tanto , hope rentals , lord douglas contra walkinshaw . but if the assignation or sub-tack was to the major part , it did annul the whole rental , november . . laird of craigie wallace contra his tennents . yea , though the subtack was only granted for certain years , and these expyred before the pursuit , hope rentals , earl of roxburgh contra ker. this is so far extended , as being in the nature of a rental , without any such clause , that it falleth in whole in the same manner , as ward-lands recognosce by alienating or subsetting the whole , or major part if possession follow , and that by exception or reply , march . . earl of galloway contra burgesses of wigtoun . though the alienation was by excambion , and was conditional , if the heretor consented , else to be null . the like where the rentaller had given a disposition of the rentalled room , whereupon the acquirer was in possession , which was found to annull the rental , albeit it bore assigneys and to exclude a sub-tack by the rentaller to that same party before any contraversie moved , february . . laird of johnstoun contra jamison . the like though the sub-tennents offered to repone the rentaller , november . . bonar contra nicolson . the like upon an assignation of an rental , though it contained a power to sub-set , and in-put and out-put tennents , march . . laird of craigie wallace contra his tennents . but this taketh no place if the sub-tack be set to the rentallers eldest son who was to succeed , march . . earl of roxburgh contra robert gray . it will also be elided , if the heretor receive duty from the assigney as assigney , hopehic , laird of craigie contra his tennents . but it will not be inferred by the rentallers entering another in possession , without granting him a right in write , july . . laird of aitoun contra laird of wedderburn , last of january . laird of cleghorn contra crawfoord ; unless the rental contain an obliegement to put no other in possession ; and then it became null by granting tollerance , and that by exception against the person having tollerance , without calling the rentaller , july . . maxwel contra a rental setting the keeping of a house , yard , and others , to the rentaller and his heirs , as kindly tennents , was not found null by demolishing the house and yard , whereby the rentaller failed in his duty , and in the cause of granting the rental , january . . duke of lennox contra houstoun . . a sub-tack is that which is granted by the principal tacks-man to his subtennent , who doth not thereby become tennent to the setter of the principal tack , this is competent to tacks-men , where lands are set to them or their subtennents , or that they have power to out-put and in-put tennents ; and it is like a subaltern infeftment , it hath the same effect to defend the possession as the principal tack it self , if it be cled with possession , and cannot be taken away by any renounciation granted by the principal tacks-man , though his tack bore not assigneys ( but though it be not observed , it hath born either power to in-put tennents or sub-tennents ) july . . earl of mortoun contra his tennents : yea , when the principal tack was reduced for not production , the sub-tacks-men not having been called , the sub-tack was sustained as a defence , notwithstanding the reduction , seing the heretor had consented to the sub-tack , december . . earl of galloway contra meculloch : yet otherways , the heretor is not oblieged to know the sub-tack , nor to call the sub-tacksmen , in the reduction of the principal tack , and it becomes null by exception , unless the substacks-man had appeared and produced his interest in the reduction ; or in the second instance , can propone a defence sufficient for the principal tacks-man , or himself ; after which it did not defend him , as bon a fidei , possessor after inhibition , or drawing the teind , decem. . . earl of wigtoun contra parochioners of stobo ; but otherways the sub-tack would be sufficient till warning . this is the effect of a sub-tack passive , but active , it is not a sufficient title to pursue without instructing the principal tack , unless it had been acknowledged by the defender , or cled with possession , sufficient for a possessory judgement , march . . sir james cleiland contra tennents of arbuckle : for , in intrusions or ejections , sole possession is the title . . tacite relocation is that which is presumed to be the minde of both parties after expiring of a tack , when neither the setter warneth , nor the tacks-man renounceth , for other significations of the alterations of their mindes will not suffice these , being the habile way of voiding tacks , which is now much more strengthened by the statute , prohibiting tennents to be put out without warning before whitsonday : but where warning is not requisite , though other competent ways of evacuating the tack will be sufficient , as inhibition in teinds , or actions for removing , summarly from fortalices , coalheughts , &c. yea , though warning hath been used , if it prescrive by three years not pursuing thereupon , it hath no effect even against tacite relocation , july . . mr. robert bruice contra captain andrew bruice . there is a kind of tacite relocation , by taking the rent before the hand , during which time , as craig observeth in the forecited place , the setter cannot remove the defuncts successor for the years ensuing , in both which cases he is understood to relocate tacitely by these deeds . tacite relocation hath the same effect to maintain possession , that the tack had even against singular successors , and that not only to the tacksmen , but to the sub-tennents being possessors , who alledged the principal tacks-man was not warned , and were not oblieged to alledge he had a tack for terms to run , but only that he was not warned , december . . mr. walter whitefoord contra johnstoun . but where the sub-tennent was warned , tacite ralocation alledged by the sub-tennent , was not sustained without producing a standing tack to the principal tacks-man , january . riccart contra laird of udnie . here the warning was by a singular successor who is oblieged to know or warn none but the natural possessor , which was not in the former case . and tacite relocation will be sufficient after a verbal tack , or where the tack is presumed upon use of payment , though none can be shown or proven : yea , tacite relocation was sustained for more years then the setter could expresly set ; and is ordinarly in the case of tacite relocation , upon liferenters tacks , which continue still after their death , till warning , and was so found in a patrons tack of teinds , after the patrons right to set , by the act of par. . was rescinded , january . . earl of errol contra tennents of urie . relocation is valide against the donatar of a ward , till warning or citation , though the tack-duty be elusory , and that the tack then sleep , spots . removing , laird of lie contra glen of barn. but tacite relocation is no relevant active title against any , but these who have right from the tacks-man , though they had acknowledged the same by payment to him for years anterior , decem. . . laird of lag contra porochioners of leymon . by what hath been said , it may appear that the force and effect of tacks is so great , by reason of the foresaid statute and custom , extending the same , that it would swallow up all heretable rights , and make infeftments useless , unless tacks had their own retrincnments and defects , making infeftments necessary . . first , tacks not being liferent-tacks , fall in single escheat , but these fall by liferent-escheat , par. . cap . . secondly tacks have no effect against superiours , but sleep during the time of wards , non-entires , &c. for infeftments feu are then valide only in some cases : yet tacks are valide against liferent-escheat , which is a casuality falling , not by the nature of fees , but by statute or custom , vide title . § . liferent-escheat . . thirdly , tacks are strictissimi juris , and no further extended then is exprest ; and therefore , are not extended to assigneys , unless exprest ; and therefore , tacks granted to women fall by their marriage , which is a legal assignation , and cannot be annulled , yet may revive by the husbands death , unexpired , vide craig , lib. . dieges . . upon the same ground a tack not bearing to assigneys , was not found to accress to a relict , as infeft with absolute warrandice , as jus superveniens authori , june . . margaret home contra janet lyel , which is to be limited thus , that it doth not exclude legal assignations by appryzing and adjudication : but only voluntary assignations , hope hic , lord elphingstoun contra laird of airth . november . . drummond of carlourie contra sir john dalrymple . liferent-tacks also may be assigned , not mentioning assigneys , february last . home contra craw. july . . duff contra fouler . the like when it is of more value then a liferent-tack , as being of many nineteen years , spots . hic , ross contra blair . the like holdeth in the power of making sub-tacks , or out-putting and inputting of tennents , or removings , which are not competent thereupon , unless express , or unless it be against these who had the possession from the tacks-man , except in liferent-tacks , and these of greater importance . . tacks cannot be perpetual ; and therefore , necessarly must have an ish , or else they are null , what favour is herein granted to rentals , is herein showen . . if there be no particular ish , but to endure till the payment of a sum , it hath been variously decided , whether it be effectual against a singular successor negative , july . . laird of mckal contra his tennents . march . . laird of lie younger contra kirkwood . affirmative , hope hic , laird of clackmannan contra tennents of balmaino . the like in a tack set to a smith so long as he should worke the setters work , july . . sir james lundie contra smith of lundie . this is unquestionable in back-tacks , which have no ish , but during the non-redemption . and in other cases the affirmative is stronger , both in reason and practice ; but it holds not , if it be but an obliegement not to remove the tennent , until such a sum be payed , that is only personal : and neither a tack nor an obliegement for a tack , unless it be contained in a tack , bearing such a sum to be due to the tacks-man , and for seourity thereof , the lands to be set , and the rent to be as satisfaction of the annualrent , pro tanto , was found valide against a singular successor , and that the tack wanted not an ish , because the payment of the money was the ish , january . . isobel ronald contra strang. but the contrary was found , march . . laird of lie contra kirkwood . a bond assigning to the ferms till a sum were payed , was not found valid against a singular successor , july . . mitchelson contra law. so a tack set for seven years , for a certain tack-duty exprest , with a clause , that the tacks-man should retain a part of the tack-duty for the annualrent of a sum , due to him by the setter , and should not be removed till the sum were payed , was found valide against a singular successor for the seven years , because there was an excresce above the annualrent , which remained for the tack-duty , but not for the rest , being but a personal obliegement not to remove , june , . . thomson contra reid . january . . peacock contra lauder . the like where a tack was set by a liferenter for four years . and while a sum were payed , found valide against the liferenters assignayes the of december . mr. robert smitoun contra mr. john brown. the like was found in a tack against an appryzer , allowing the tack-duty for the annualrent of the sums , there remaining a several tack-duty , december . . charles oliphant contra james currie . . fifthly , tacks are not valide as real rights against singular successors , unless they have a tack-duty ; yea if they have one but in the tack it self , it be wholly discharged , yet the tack is valide ; neither will the discharge of the tack-duty be valide against the setters singular successor , january . . mr. james ross contra blair . . but the want of an entry vitiats not a tack ; for when there is no entry , the date or the next term is the entry , december . . mr. william oliphant contra mr. heugh peebles . . sixthly , all tennents are burdened with necessity to enter and labour the ground , that the master may have ready execution , february . . samfoord contra crombie , and not to rive out meadow or greens never plowed , or destroy mosses , or deteriorat the ground worse nor he found it , february . . laird of haddo contra johnstouns : and must leave the houses as good as at his entry , february . . contra all which are without express provision : neither may the tennent open the ground for winning of any mineral , coal , or clay for pipes , without that power be exprest , the . of february . john colqhoun contra watson . seventhly , albeit tacks be by statute as real rights , yet they are affected with back-bond granted by the tacks-man , which are relevant againstthe tacks-mans singular successor , though neither registrat nor intimat , january . . margaret forbes contra it remains now to consider how tacks are destitute and taken off ; and first , as to the point of right . next , as to possession . as to the point of right , we shall not speak of the nullities of tacks , by which they were never truly constitute , and so needs not be destitute : but when they have once a real beeing , they ceasse ; first , by any deed contrary to the tenor or nature thereof , as hath been before shown in rentals , which is not so in ordinary tacks , unless there be a clause irritant , and that be declared , and so is not competent by exception , spots . hic , robert stevinson contra alexander barcley . . secondly , they become void by not payment of the tack-duty , in the same manner as a feu right by the delay of two years , unless the tacks-man offered payment at such a time , november . . romanno contra nisbit . . thirdly , if the tacks-man be pursued to find caution for the duties resting , and in time coming if he find no caution , the tack becomes void and he may be removed summarly without warning ; this was also sustained against a back-tack in wodsetts , though having no clause irritant , hope , confirmation , sir thomas dischingtoun contra . laird of pitmeden , idem , william hamiltoun contra earl of argile . it was also sustained , though the duty was small , the ground plenished , and but one year resting , february . . lawson contra scot. but it is not sustainable where there are no bygones resting : neither was it sustained , unless a year were resting the time of the citation , at least at litiscontestation , albeit the tacks-man was bankrupt , and in prison for debt , january . . lady binnie contra heugh sinclar . . fourthly , tacks ceass by the expyring of the terms thereof , and the setters warning , or other deeds to take off tacite relocation , or the tennants renounciation ; the form whereof is , the tennent fourty days before whitsonday , subscrives and delivers to his master a renunciation of his tack and possession , consenting that he enter braevi manu , without hazard of ejection , whereupon there must be taken an instrument of renunciation in the hands of a nottar , as a solemnity requisite , which is sufficient to instruct the overgiving , astbeing the habile way approven in law ; albeit in other cases not approven in law ; instruments of nottars prove not the deed of the party , in this case it avoideth the tack , and is probable by instrument , if the tack be expired , but during the tack the instrument will not prove the acceptance of the renunciation . . fifthly , tacks are taken off by the contrary consent of both parties , though they be not expired , as when they are really left by the tennent , and possessed by the master : or when by write they are renunced and accepted ; for verbal renunciations may be resiled from before they be perfected in write , in the same manner as verbal tacks may , and much more promises to renunce ; this way of renunciation is express and direct . . sixthly , tacks are taken away by tacite and implyed renunciation , and by passing therefrom , as by taking a posterior tack for fewer years , and making use thereof , albeit but a minute , not by contract , nor subscribed by the tacksman , nor in his hand , but his acceptance proven by witnesses , and by paying conform , january . . earl of lawderdail contra waterstoun . by accepting a posterior factory of the same lands , hope , action of reduction , earl of tillibairn contra james dalzel . by paying a greater duty , february . . atcheson of gossoord contra his tennents . lethem contra his tennents . but not by paying of more presents , ibid , robert hamiltoun contra tennents of melburn . neither by sub-tennents paying a greater duty , without warrand of the principal tennent , june . . laird of phairnieherst contra minister of innerkeithing . also by taking an heretable right of the same thing ; but it holds not , if the heretable right were reduced , for then the tack revives , spots . appryzing , laird of garthland contra campbel . neither is it taken off by a posterior appryzing in the tacks-mans person , seing it was satisfied and declared extinct against him , last of february . brice semple contra tennents of closseburn . . tacks are taken off as to possession , by removing of the tennents , either voluntarly , as is before exprest ; or more ordinarly , judicially by process of removing , which is most frequent and important ; and therefore , is reserved to be spoken of together in this place , though there be diverse kinds of removings , having respect to diverse titles ; for though removing be competent against all possessors , whether possessing without any title , or by an insufficient title , as an invalide infeftment or the like , yet the rise thereof is for removing of tennents . . removing is either summar without warning , or solemn upon warning ; again summar removing is either by paction or law ; by paction when it is so agreed by the tack or other write , that the tennant shall remove at such a term without warning , which will be sufficient at that time , craig hic . this will hold upon dispositions , whereupon the disponer may be compelled to remove summarly without any such express clause , which was also extended in favours of appryzers , against their debitors possessing a house , march . . january . . earl of lothian contra sir john ker and his son. but it is more questionable , whether it will be sufficient at any time thereafter , if the tennent be suffered to possess , per tacitum relocationem ; especially , seing the statute for warning is a publick law , introduced for the good of poor tennents , whose rusticitie is excuseable , if they advert not to anterior pactions , nam pacta privatorum non derogant juri communi : yet upon the contrary , cuique libet 〈◊〉 juri pro se introducto : betwixt which , i conceive this temperament will hold , that such pactions , though recent , may be effectual at the precise term , or at any term or time thereafter upon intimation , if it be so agreed upon in write ; for promises in this case may be resiled from ( as before is shown ) but in either case the tennent must have intimation before the term , which will suffice without the solemnities of warning ; but it must be of that length , that the tennent may provide for himself , and remove his goods , which will be in the arbitriment of the iudge ; and i suppose that they will walk most fairly and safely , who shall intimate the same to the tennent fourty days before the term : or otherways , all the effect is like to be , that he will be discerned to remove at the next whitsonday after the process , without violent profites , as uses to be done when there is any probable excuse for the tennents not removing . summar removing is competent by law without paction , in all cases where the statute appointing warning , takes no place , which is chiefly regulate by the reason of the statute , that tennents be not put at unaworse to seek their habitations , or at an unseasonable time of the year ; and therefore , it is not necessary in several cases . first , where the possessor is not tennent , but a vitious possessor ; or where the possessor hath nothing but an insufficient infeftment or tollerance : for the statute is only in favours of tennents , who are lyable for mails and duties . secondly , warning was not found necessary for removing possessor from a tower or fortalice , though set in tack , hope hic , lady saltoun contra mr. william livingstoun , or from a coal , ibid. wolmet contra niddrie . or from the possession of a liferenters house or land , after the liferenters death , and that upon suplication , it was obtained without process , hope liserent , prestoun contra cockpen . and this was competent at the instance of a liferenter against these who continued the possession of a former liferenter , after her death , january . . lady kincaid contra her tennents . the like , but to take effect at whitsonday after the process , against a liferenters servant , possessing without a tack in write , and also without violent profites , february . . thomson contra merstoun . but if the possession from the liferenter be by vertue of a tack , the possessor must be warned , as hath been shown amongst the effects of tacks . removing is also competent by sorce of of law upon a process , to find caution for the rent , or to remove ; of which before . as to what is special in tacks of teinds , hath been considered in that title . the prime kind of removing is that which is solemn upon warning ; for clearing whereof , we shall first consider the order pre-required . secondly , the interest of the pursuer . thirdly the exceptions of the defender . fourthly , the effects of removing . . the order of removing of old was thus ; the master of the ground did only verbally intimate to the tennent to remove at the next whitsonday ; and the only solemnity requisite was , that before the said term he appeared before the door of the tennent and broke a lance there , as a symbol of his breaking the tacite relocation betwixt them ; whereupon the second day after whitsonday , he came braevi manu , and expelled the tennent ; or at least laid out some of his goods to compleat the solemnity of his removing , craig hic , hence arose many quarrels , violences and breaches of the publick peace ; when the tennent had any reason or pretence , for which not to remove , or otherways was unwilling , and not compelled by law or publick authority , but by private force . . for remeid whereof , that excellent statute concerning warning and removing of tennents was made , par. . cap. . prescriving the order of removing thus ; that the master of the ground give a precept of warning in write , commanding his officer ( which may be any person he pleaseth ) for whose name , a blank is set in the precept , to go fourty dayes preceeding whitsonday , and intimate to the tennent that he remove himself , his family , sub-tennents , goods and gear , at the said term , and leave the tenement void and red , that the warner may enter in possession : this may be done either personnally or at his dwelling house . secondly , the precept must authorize the officer to make the said denounciation , fourty days before the term upon the ground of the land , leaving a copy thereof affixed thereupon , and by the same space , it must be done at the kirk-door , at the time of dissolving the congregation , from the first sermon , leaving a copy thereof affixed upon the kirk-door ; all which must be done before two witnesse , required for that effect , and executions made conform by the officer , which without any other instrument or solemnity doth sufficiently prove , unless it be improven , upon this order the pursuer hath a priviledged action upon six days warning only , without continuation , par. . cap. . and that because of the necessity of the dispatch , that the new tennents who hath taken may be put in possession , and the land not left waste , both to publick and private detriment : this order must be used , though the term of the tack be not at whitsonday but at martimess or candlesmess ; and it will not suffice to be made fourty days before these terms , june . . ramsay contra weir . the reason hereof is , because the warning is appointed that the tennents may timeously provide for themselves , which cannot be but before whitsonday , the ordinary time lands use to be set , if the parties removed be out of the countrey , it will suffice to warn them upon the ground , and at the kirk-door upon fourty days , but the citation must be upon sixty dayes , which is consequent from the statute , which prescrives nothing different from the ordinary course of law ; in the case of parties out of the countrey it was so decided , january . . laird of faldenside contra bimerside . february . . mebrair contra sir robert chrightoun alias murray . this statute reacheth not warnings from tenements within burgh , which are regulat by the custom of burgh : thus the town officer by command of a bailie , though without write , warneth only at the tenement , fourty days preceeding whitsonday , and in evidence thereof , useth to chalk the door , craig hic , nicolson removing , andrew ker contra euphan moor : this was extended to a house within burgh of barony , july . . mr. john hart contra nor was warning before whitsonday found necessary for removing a tennent from a soap-work , november . . james riddel contra charles zinzan . . we come now to the tit. requisite for removing , which must be a real right of the ground , except the question be against a party who is personally oblieged to remove ; and therefore , first , there needs no title against such parties , who had the possession from the pursuer , for these can never question his title , whose interest depends thereupon , but acknowledging him by payment of mails and duties , will not be sufficient without a right in the pursuer . secondly , a personal or incompleat right is a sufficient title for removing against the granter of it , or his heirs , if it contain a clause to remove , or put the pursuer in possession , expresly or by consequence . thirdly , infeftment of property or liferent is a sufficient title in removing , and that upon production of the seasine only ; where the defender shows no better right , nicol. removing , adam wat contra ord : but the seasine must be both before the warning and the term , except first in the case of heirs , this being a possessory judgement , and a continuance of the predecessors possession ; so that the tennent cannot be in doubt or hazard to quite the possession , as he may be in other cases , where he may be lyable , both for the rent and rendering the possession to another party , and so it was sustained at the instance of an heir , though his retour and seasine were after the warning , february . . earl of kingborn contra arbuthnet . hope hic , john small contra tennents of baltersaw , in the case of an apprizer , whose appryzing was before the warning , it was found valide , though the infeftment was after , against the debitor from whom the lands were apprized , but to take effect at whitsonday thereafter , and without violent profites , december . . dalrimple contra douglas . and removing was sustained at the instance of an heir , retoured and infeft , pursued upon a warning used by his predecessor , though his infeftment was after the term , july . . earl of hadingtoun contra his tennents . it was also sustained at the instance of a fiar upon a warning made by a liferenter and fiar joyntly , november . . ramsay contra hoom. but a removing was not sustained upon a warning made by the fiar , before the liferenters death , no not to take effect at the next whitsonday without a new warning , june . . agnew contra tennents of dronlaw . though infeftment be the best title for removing , yet it must be limited ; first , it takes no place being upon infeftment , proceeding upon a precept of clare constat , hope hic , stevinson contra stevinson ; and that in respect this precept is but the assertion of the granter : yet if either the predecessour of that heir was in possession , or the superiour himself , it would suffice . secondly , it holds not in base infeftments , not cled with possession , unless the authors right be instructed or acknowledged , if the defender have any title . thirdly , a tercers service and kenning to her terce , is a sufficient title in removing . fourthlie , the courtesie of scotland is a good title for removing after a wifes death , without any seasine or solemnity , or the husbands jus mariti , before her death , which will be effectual , though she die before sentence or process , to the effect , that the husband may get the benefite of the violent profites , for the time preceeding her death , though he cannot attain the possession . fifthly , an executor may insist for a removing upon a warning used by the defunct , to the effect he may obtain the violent profites , due before the defuncts death . sixthly , a tack is a sufficient title for removing , if it contain expressely the power to out-put and in-put tennents , or if it be a liferent-tack , or for nineteen years or above , as hath been now shown amongst the effects of tacks ; but this must proceed either upon the setters right or a possessory judgement in the setter or tacks-man . removing is not sustainable upon an incompleat right , as upon an appryzing , though the superiour be charged , and the letters have been found orderly proceeded against him , to infeft the apprizer ; and the objection only proponed by tennents , pretending no right , march . . bar lockhart contra his tennents . yea , though the removing was against the debitor himself , february . . mr. john galloway contra 〈◊〉 . though it hath been now shown that an appryzer being infeft , obtained removing from an house , against his debitor without warning . the like holds in adjudications , and in the case of the superiours pursuing upon the vassals liferent-escheat , it not being declared , hope hic , patrick butter contra andrew harvie . and so consequently in all other rights of superiority , where declarator is required ; and though the superiour needs show no title , unless the vassal disclaim him ; yet his donatar pursuing upon a liferent-escheat , was not admitted till the superiours seasine was produced , hope hic , david m'call contra tennents : and it is so in all cases wherein the superiour or the vassal are singular successors , and so have ground to doubt , and cannot be put to disclaim . . we come now to the exceptions against removing , to speak nothing here of common exceptions , or of thr pursuers want of a sufficient title , which are rather objections then exceptions , and are sufficiently cleared by what we have said upon the titles of removing . it must be adverted , that before the defender can have any exception admitted to his probation , he must find caution for the violent profites , if he succumb : and that by the said statute , . cap. . justly introduced in respect of the contentiousness of parties to keep possession ; yet this will not hinder objections against the titles or the like , being instantly verified and not making delay , that being the motive of that act to prevent delays . . these exceptions , though they be many , may be thus martialled ; they are first against the order and warning . secondly , upon deeds done by the pursuer . thirdly , upon the interest of the defenders master . fourthly , upon the defenders own interest . fifthly , upon obedience . for the first , every point of the warning now related , is so necessary that the omitting of any one affoordeth a sufficient defence ; yer a warning was not found null , though made at a kirk-door , where there were no divine service accustomed , being in the time that divine service used to be performed , and the kirk being known a distinct kirk , nicolson hic , hoom contra removing may be excluded by deeds done by the pursuer , either by any personal obliegement not to remove , or any deed importing the same , as a disposition or obliegement to infeft , which are sufficient against him , but not against his singular successors ; or if he renunce or pass from the warning or action , either directly or by deeds importing the same , as taking rents before the hand , or taking a herezeld as to the year ensuing , march . . auchinleck contra mathie : or by accepting the old accustomed mails for terms after the warning , nicolson de migrando , irving contra french , hope hic , carnousie contra or by receipt of taxation for terms since the decreet of removing , ibid. or by accepting services contained in the tack , for the terms after the warning ; but this is not relevant , if the same be at the command of the pursuers factor or grieve , without special order , march . . laird of lie younger contra kirkwood . neither by accepting presents , though accustomed , not being special in the tack , these being interpret gratuitous , as before is shown . removing is also elided by prescription , upon three years forbearance to pursue ; and that by the statute , . cap. . for thereby the pursuer is presumed to pass from his warning ; but these three years are not accounted , anni continui , but anni utiles : from the warning without accounting the time betwixt the warning and term , but from the term , to which the warning was made ; because none can be said to delay to pursue , before he be necessitate to pursue , which is not till after the term , it was so decided february . . lady borthwick contra scot of goldilands . but removing may be sustained before the term , that it may take effect precisely at the term : otherways many tennents may be disappointed , who take upon the warning of other tennents , their rooms , and renunce their own , or are warned therefrom ; and so removing was sustained before the term , to take effect then , november . . james riddel contra charles zinsan . but the process being once intended , it continues till the great prescription of fourty years , except such as are not wakened every five years , for such prescrive in ten years by the act . par. . the exceptions of removing at the instance of the master of the ground , are very frequent and various ; for it is ordinarly proponed and sustained , that the defenders are tennents by payment of mail and duty to a third party , who is not warned nor called ; neither are they put to dispute their masters right to be valide , which holdeth , whether his right be an infeftment , liferent-right or tack ; and though the tennent hath been put to condescend what the right is , and that in specie , it is a valide right , though he needs not dispute the particular defects of it , nor the competition of it with any other right : that hath been done , that the pursuer might know how to quarrel their masters right ; but i have never observed that litiscontestation has been made , or a term assigned to tennents , to instruct their masters right ; therefore this defence is but dilatory , and should not be sustained , unless instantly verified by tacks or discharges from the alledged master , which would be repelled , if the tennents have interverted the pursuer or his authors possession ; or if the pursuer were singular successor , not presumed to know any interest but of the possessors , if the tennent , produce his masters seasine , with his tack or discharge , it would instruct this dilator , which is sufficient upon the not calling the tennents master , for his not being warned is proper for himself to alledge , and the partie will in the same process get warrand to cite that master , who must defend himself upon his own rights ; and therefore , this defence was sustained to tennents , though they condescended upon no other right to their master , but tacite relocation , december . . mr. walter whitefoord contra laird johnstoun . it hath also been sometimes sustained , that the defenders were tennents by payment of mail and duty to an appryzer , though not infeft , hope hic , crawfoord contra brown. this exception is also elided by this reply , that the defenders had acknowledged the pursuer by payment of mail and duty , nicol hic , lady evandale contra her tennents . it is also elided by alledging that the defenders masters right was reduced at the pursuers instance , december . . spading contra fleming . the like where his right was reduced at the instance of the pursuers author , spots . hic , maxwel contra tennents of glassock . earl of nithisdale contra his tennents . the exceptions against removing upon the defenders own right ; are either in respect of his right to the land in question , or to the other lands brooked by him , pro indiviso , with it ; for the first , there are as many such defences as there are rights competent for defending possession ; and they are either founded upon the benefite of a possessory judgement , which how conpetent may be seen at large , title infeftment , . § . . which needs not to be repeated ; or if that be not competent , the defender must found himself upon the point of right which ordinarly infers a competition of rights ; but in either case the defence will not be sustained upon any right , if the possession was not attained there upon , bat upon the pursuers right ; which possession must be restored , and the defender left to his action , upon the others right , as accords , as if after redemption of a temporary right , whereby the defender entered in possession , he should defend upon another right which will not be sustained in this possessory judgdement , against him or his successor , from whom he had the possession , november . . sir archibald stuart of castlemilk contra duke of hamiltoun . the exception pro indiviso , is very pregnant , and taketh not only place in solemn removings , but in the action to find caution for mails and duties , or to remove , though the excipient had taken tacks from the pursuer , december . . 〈…〉 contra carmichael . yet it was not found relevant , to stop removing from the pursuers part of a coal-heugh in lands undevided , because the coals are divisible by measure as they are raised out of the coal-pot , spots . removing , hugh somervel contra dickson . neither was it found sufficient to maintain a relict in possession of a house , which could not be divided , whereof she had a third part , and possest the other two thir●s , pro indiviso ; but the fiar having the two thirds , was to be preferred to the po●●ession , paying her the third of the mail , upon condition that if he se● the tenement , she should be preferred , giving as much mail as another , january . . legan contra galbraith . the last exception against removing is , obedience by voluntary removing , conform to the warning , and leaving the land void and red at the term , without necessity of a renunciation in write , march . . keith contra simpson . the like , the defender finding caution to desist from the possession , nicol. de migrando , wallace contra mitchel . but the alledgeance of obedience was not found relevant upon an exception , bearing , that the land was left void and red at the term , seing that it bore not , that the possession was offered to the charger ; in respect that at the time of his removing , another party entered in his vice , january penult . greenlaw contra adamson . but the obedience must be full , according to the warning by the defenders removing himself , his family , sub-tennents and cottars , goods and gear ; so that the pursuer may enter in possession ; and therefore , decreet would be obtained against the principal tacks-man , and the letters still put to execution against him , till all these be removed ; and if the pursuer please , he may pursue them to remove , without other warning then what was made to the principal tacks-man ; so it was sustained against a son upon a warning against his father , even after his fathers death , january . . hoom contra hoom. as to the last point concerning the effects of decreets of removing , it is not only the attaining possession of the land it self , but sometimes also the corns growing thereupon , as being a part thereof , being a possession violent , hope spuilzie , john elliot contra lord balcleugh . yea , of the hay of that cropt , though separate and stacked by the person removed , hope spuilzie , sir james balmuire contra williamson . but the main effect is , the obtaining the violent profites of the land , until the possessors obedience , and that both against these who are warned , and against these who succeed in the vice of warned or removed tennents . . violent profites are so called , because they are such profites as are due by , and for violent possessioa , whatsoever way it be , by warning and removing , ejection , intrusion , or succeeding in the vice , and they are opposite to ordinary profites , which were due by tacit relocation , or were formerly accustomed to be payed . violent profites are pursued for by a several action , after the decreet of removing is obtained : wherein the decreet of removing is both a sufficient title , and probation of the violent possession , against the parties removed therein , and their possession needs not again be proven , and their defences hindering the pursuer to obtain possession , would not be sufficient , unless they offer to prove the pursuer himself was in possession , or others by his warrand , june . . hector monroe contra laird of balnagoun . neither will any other thing but real obedience , by giving , or at least offering the void possession , take them away though the land lye waste . but violent profites were also found competent against these who were not warned , against whom decreet of removing was not obtained , to wit , against any who suspended the decreet , and thereby hindered the defenders attaining possession , hope mails and duties , ker of fairnieherst contra turnbul . yea , a party obtaining possession by a decreet of removing , after litiscontestation , in the reduction of the decreet , was found a violent possessor , and lyable to violent profites himself , hope possession , gordon of abergeldie contra lord forbes . as to the quantity of violent profites by the custom of burgh , it is double mail of the tenements within burgh , hope mails and duties , christian buchan contra marion seaton . but in lands , it is the greatest profites that the pursuer can prove he could have made . and though in cases of violence , the quantities and prices are ordinarly probable by the pursuers oath , juramento in litem , because he ought to have , not the ordinary price , but praetium affectionis , as that which themselves accounted to be their loss ; yet here probation must be used ; but if it be not full , the pursuers oath may be taken . violent profites are also sustained against all defenders in solidum , as in spuilzie ; but when diverse compeared and proponed partial objections against removings and succumbed , they were found lyable for the violent profites of the lands , in the exceptions severally , hope mails and duties , william wallace contra alexander blair . otherways partial exceptions are not here competent , hope exceptions , laird of balnagoun contra hector monro . neither will any exception be admitted , which was competent and proper in the decreet of removing , relative to right or possession . but suspension or reduction ought to be intented thereupon . the like as to violent profites against successors in the vice , march . . laird of hunthil contra rutherfoord . . succeeding in the vice is a kind of intrusion , whereby after warning any person comes in possession , by consent of the parties warned : or otherways , against such there needs no warning but a summar process , as in other intrusions , having the same probation , for in both , the possession must be proven , which with the warning is sufficient , but can have no effect till decreet of removing be obtained against the tennent warned . though violent profites be the ordinary effect , both in removing and succeeding in the vice ; these will proceed as to attaining possession , and no violent profites be obtained , when there is any colourable title which might have made the warned partie , reasonably doubt of the pursuers interest , or of his own right , hope removing , walter ord contra tennents . but this useth ordinarly to be so provided in the decreet of removing , and will be hardlie sustained thereafter , by recanvassing the defences competent in the removing ; that it may appear whether there were a probable ground in them or not , at least the defender would protest for the reservation , as to the violent profites ; for if this were again sustained , it would bring over-head all the many intricat defences competent in removings ; of which formerly . and therefore in the removing pursued by the earl of argile contra mcnaughtoun ; the lords repelled the defences , but declared that they would have consideration thereof , as having probable ground to debate , and would modifie the excrescence of the violent profites over and above the ordinary profites . title xx. wodsets , where , of reversion , regress and redemption . . infeftments for satisfaction of sums principal and annual , or for relief , are proper feudal impignorations , consisting with the disponers property . . the nature of wodsetts . . the nature of reversions . . kinds of reversions . . solemnities requisite in reversions . . the effect of clauses irritant in reversions . . reversions are stricti juris . . kinds of wodsetts . . proper wodsetts . . the effect of tacks after redemption , containedin reversions . . improper wodsetts . . regress . . discharges of reversions . . wodsets become legally extinct by declarator of expiring thereof , or by the order and declarator of redemption . . the order of redemption of apprizings or adjudications . . the order of redemption by conventional reversions . . premonition . . consignation . . declarators of redemption . . the effect of declarators of redemption . . defences against declarators of redemption . . requisition . . how far other rights may be reserved in redemptions , or renounciations . awodest , as the word insinuats , being the giving of a wedd or pledge in security ; it falleth in consideration here as the last of feudal rights : for pledges are the last of real rights , as before in the title real rights is shown ; where it was also cleared , what was the ancient custom of impignoration of moveables , which shall not be here repeated , but only what is proper to the impignoration of immoveables and heretable rights , by the feudal customes , and our own . . that which doth most properly agree to the nature of a pledge or wodset with us , is where any inseftment or security is granted . in security of a sum of money , or for relief of cautionry , or any other sum , which bears expresly , that the land or right is disponed for security or relief ; and therefore needs express no reversion ; for it is necessarly implyed , that so soon as relief or satisfaction is obtained , the infeftment granted in security ceasseth ; so that if the granter of the infeftment , or any other bound in the principal obligation , either make payment , or the receiver thereof by his intromission , be satisfied , ipso facto , the infeftment is extinct : yea , if the debitor granter of the infeftment and security should instruct compensation , as it would extinguish the principal bond , so would it in consequence the infeftment for security thereof . this infeftment being really a pledge , it is consistent with the infeftment of property in the debitor , as two distinct kinds of rights , and thereby the debitor is not denuded , even although the infeftment for security were publick by resignation ; because it is not a resignation simply , in favorem , but ad effecsum , viz. for security ; and therefore , when the debt is satisfied , the debitor needs not be re-invested , but his former infeftment of property stands valide . like unto these in all points are infeftments upon appryzing , which are truly pignora praetoria , whreby the debitor is not denuded , but his infeftment stands ; and if the apprising be satisfied within the legal , it is extinguished , and the debitor needs not be re-invested ; and therefore , he may receive vassals during the legal ; and if he die , the appearand heir intrometting with the mails and duties , during the legal , doth thereby behave himself as heir , as was found , february . . henry hamiltoun contra william hamiltoun . which holds olso in adjudications , by the late act of parliament , come in place of appryzings . but securities for sums have been of a long time , taken frequently in another way , viz. by simple alienation , titulo venditionis , with a reversion , which is but 〈◊〉 de retro vendendo , ordinarly taken a part ; that if the creditor were not satisfied , he might force the debitor to pass from his reversion ; and so his reversion stood absolutely , which gave the occasion to these kinds of securities ; and also because during popery , all annualrents for the use of sums were discharged as usury ; and therefore , creditors bought annualrents , and gave reversions to the debitors , which was the same thing in another convoy . as to these wodsets in this place ; and that first , as to the constitution of wodsets : and next as to the destitution thereof . . as to the constitution of a wodset , it must be according to the thing or right impignorat for a tack or liferent : an assignation to these or any other cessible right may be given in wodset for security , and under reversion : but the ordinary wodset is by infeftment of property , or of annualrent ; the conception whereof is not under the name of impledging , impignoration , hypothecation or the like , but in the terms of disposition , or infeftment , whereby the property of the thing wodset passeth , and is established in the wodsetter : but under reversion to the constituent , whereby it hath two parts , the infeftment and the reversion . the infeftment in wodsets , is in all points like to other infeftments , whether they be infeftments of property or of annualrent ; or whether they be publick , holden of the constituents superior , or base holden of himself ; so that all the specialities of wodsets resolve in reversion . . a reversion is a paction and condition , or provision for redemption of any thing alienat upon such terms as are agreed upon , which of it self is no more then a personal obligation , whereby the wodsetter is oblieged , until by that excellent statute , par. . cap. . it is declared , that the reversion shall be effectual , not only against the first wodsetter himself , but all his successors in the wodset lands , whereby reversions are accounted as heretable and real rights , affecting singular successors , in the same way that tacks are made real rights , by the statute thereanent . the english by reversion , do not understand a right of redemption , but a right of survivancy or succession ; as the reversion of an office is a title to that office , after the removal of the present incumbent . and that which we call a wodset , they call a morgage ; for a gage is a pledge which is really ingaged : and morgage is a pledge , the redemption whereof dieth , or is extinct , if it be not used at the time , and in the manner agreed upon by the parties , of that with them in their morgages , not only clauses irritant , or 〈◊〉 legis commissoriae , are valide : but if the provision for redemption , be for a definite time , that being elapsed the morgage becomes irredeemable by their common law , what remeid may be had in the chanclery upon equity , i know not . . before we come to the solemnities requisite for constituting reversions , it is necessary to distinguish the several kinds thereof : reversions are either legal , arising from law and statute , and not from consent of parties , as are the legal reversions of appryzings and adjudications ; or they are conventional , by the consent of parties , which are either incorporate in the body of the wodset-right or a part , they are also either principal reversions or eiks to reversions ; and they are either solemn and perfected , or only inchoat , such as promises , bonds and conditions for granting reversions . . legal reversions require no other solemnity , then what is requisite to the legal constitution of the right whereupon they follow . the common solemnities requisite for reversions and other writes of old , was only the seal of the granter , without necessity of his subscription . but by the act of par. . cap. . it is required , that all reversions , bonds and obligations for making of reversions , be not only sealed , but subscribed by the granters own hand ; and if he cannot write , by his hand led at the pen by a nottar ; or otherwayes , they make no faith , unless the same by consent of parties be registrat in the books of a judge ordinar , or that it be a reversion within burgh , contained in the instrument of resignation and seasine of lands by the bailie and town-clerk . and by the act of par. . cap. . reversions , assignations and discharges thereof , and eiks thereto , or other writes of great importance , are ordained to be subscribed and sealed by the principal parties ; or if they cannot write , by two nottars before four designed witnesses , else to be null and of no faith . but the matter of reversion is perfected by the act of parliament , . cap. . ordaining all reversions , regresses , bonds or writers for making reversions , assignations and discharges of the same , to be registrat in the register of seasines and reversions within sixty dayes of their dates , otherwayes to have no effect , save only against the granters thereof , but not against their singular successors acquiring perfect and lawful rights : but this is not requisite in infeftments of burgage-lands within royal burghs , nor in reversions incorporat in the rights of wodset . upon consideration of the inconvenience & insecurity of burgage-lands , the lords by act of sederunt , ordained the burghs to take sufficient caution of their town-clerks present and to come , to insert in their books all seasines given by them of tenements within burgh , and all reversions or bonds for granting reversions , assignations thereto , and discharges thereof , renunciations and grants of redemption , and that within sixty dayes after the giving of seasine , or presenting to them of the reversions or others foresaids , under the pain of the damnage of parties , acquiring bona fide for onerous causes , that they may incur by such latent rights ; declaring , that such seasines and reversions , not insert in manner foresaid , to be esteemed as latent and fraudulent , keeped up of purpose to insnare lawful purchasers ; which act of sederunt is dated , february . . so that , as by the first act reversions are made effectual , by this last they are made evident , that acquirers may be secured against latent reversions , and by the registration , or being in the body of the wodset , the necessity of sealling is taken off , and for the most part in desuetude . it is also consequent from this last act , that not only formal and solemn reversions in the body of the wodset or registrat , are effectual against singular successors , but also bonds and writes for making of reversions , otherwayes there needs no ordinance to registrate these for the purchasers security , if of themselves they could affect purchasers : but promises of reversion are no wayes effectual against singular successors , unless they have been brought into write , at least by decreet before these successors right , because being only probable by oath of party , the oath of the author will not prove against his singular successor . neither will declarations , back-bands or conditions of trust , be comprehended under reversions ; but they remain obliegements personal upon the person intrusted , unless they contain express obliegement to re-dispone , which is a reversion , albeit it be not formal ; or if it bear , to denude himself in favours of the disponer or any other ; but if it be but in trust to his behove , though thereupon , via actionis , he might be compelled to denude , yet is no reversion , and however hath no effect against singular successors , unless they be registrate as aforesaid ; except in so far as they may be grounds of reduction against the parties intrusted , or their singular successors partakers of the fraud . . it is also frequently provided in reversions , that if the condition of the reversion be not performed betwixt and such a time , the reversion shall expire ; and sometimes it is provided so to be , ipso facto , without declarator . this is a clause irritant , irritating or annulling the reversion , which in the civil law is called , pactum legis commissoriae in pignoribus , and is thereby rejected and void as an usurary paction , whereby the wodsetter getteth more then his just interest as a penalty : which therefore , as in other cases , ought to be modified to the just interest ; especially seing indigent debitors , through necessity of borrowing money , will be easily induced to such clauses . and therefore , a back-band for redemption of a tenement , bearing such a clause irritant , was found null two years after the terme , and after a decreet of removing all meliorations being satisfied , july . . cleghorn contra ferguson . the like was found in an assignation to a bond under reversion of a smaller sum , which was found penal and modified to the just interest , june . . mitchel contra robson . yet such clauses irritant are effectual upon the failie committed , unless they be purged by performance , which is ordinarly received when offered at the bar , in the declarator of the expirie of the reversion : so was it found purgeable at the instance of the reversers creditors , . of march , . doctor scot contra dickson of headrig . yea , though the payment be not present , a time will be granted before the extract of the decreet of declarator of the expirie of the reversion , that in the mean time , the failie may be purged , feb. . . pringle contra ker ; but no such time was granted , where the requisition was upon ninescore dayes ; but decreet was given , unless present payment were made , july . . nairn contra napier . but clauses irritant in reversions , are only thus qualified in real impignorations : but when the reversion is of a true sale , not in security , but for an equivalent price , or where it is granted after the right related to , and not for implement of a promise or condition made at that time , it is valid ; for only pactum legis commissoriae in pignoribus , is rejected in law. and therefore , the irritancie was not found purgeable before the declarator , where the reversion was of lands disponed for a competent price by a true sale , january . . james beatsone contra harrower . a bond bearing , that failing heirs-male of the granter and of his brothers bodie , that the heirs-female should denude in favours of a sisters son , upon payment of a certain sum , being registrat in the register of reversions , was found valid against a singular successor , as a conditional reversion , and not as a substitution , albeit the bond was granted by an heretor , and that the land was never wodset , but became redeemable by this bond , and was not prejudged by a posterior liferent granted by that heretor in favours of his wife , which would have been effectual , if it had been a substitution ; but the sum upon which the heir-female was oblieged to denude , was ordained to be re-imployed for the wife in liferent , january . . laird of lambertoun contra lady blanergesk . . as to the nature of reversions , they are stricti juris , and not to be extended beyond what is exprest , and so not to be extended to the sassigneys of the reverser when not exprest , yea not to his heirs , unless it be so exprest ; but where heirs of the reverser were not exprest , without adjecting the ordinary clause of paying the debt to the wodsetter by the reverser , any time during his life ; and so heirs were not found omitted dedita opera , but by negligence they were not excluded , january . . earl of murray contra laird of graunt . and a reversion taken by a father disponing to his son , found to be extended against the heirs of the son , though heirs were not mentioned , feb. . . muir contra muir . the like spots . redemption , william hamilton contra hamiltons . and therefore , the day of consignation being appointed eight dayes after the terme , the consignation was not sustained at the terme it self , though these dayes were introduced in the reversers favours , july . . lord balmerino contra eliot of stobs : yet , where the reversion bore , the premonition to be at the paroch-church , it was sustained , being used only personally , decemb. . . finlason contra weyms . and where the reversion did bear consignation at the creditors house in london , it was sustained , being at his successors house at edinburgh , feb. . . creditors of sir james murray contra sir james murray . . the constitution or nature of wodsets being thus cleared , as to the kindes thereof , wodsets are either proper , or improper ; and they are either publick or base . . a proper wodset is , where the fruits of the thing wodset are only given for the annual-rent of the sum , and the hazard or benefit thereof , whether it rise or fall , is the wodsetters ; and there hath never been any case decided finding such proper wodsets usurary upon exorbitancy of profite : but by the act of par. . betwixt debitor and creditor , all wodsets before that act , though proper , are so altered , that if the person having right to the reversion , offer surety and demand possession , the wodsetter must quite possession , or else restrict himself to his annualrent , and count for the superplus , and that not from the act of parliament or citation , but from the offer of security ; which was not sustained at the instance of a singular successor in the right of neversion , not having produced his right to the neversion at the requisition : and though it was produced in the process , the wodsetter was not found oblieged to restrict or cede the possession , because he was in natural possession by labourage , till he were warned before whitsonday , feb. . . bruce contra robert bogie ; though there was a clause in the wodset renuncing the usurpers act , and all such acts made or to be made ; for that exception in the act of parliament , relateth only to preceeding clauses thereof , and not to the clause anent wodsets which is posterior , january . . laird of lamingtoun contra sir john cheislie ; feb. . . lord borthwick contra his wodsetters ; feb. . . ogilvie contra . but where in wodsets , there is a condition of the neversion , that a tack should be granted for years after redemption , that tack was not found taken away by the act debitor and creditor ; but that if it were in the terms of the old act par. . cap. . far within the true avail , it were usurary and null , february . . lord lie contra porteous ; february . . douglass of mortoun contra and verner : in which case , the tack was sustained , if it were not much within the worth of the land , as it was the time of granting the wodset , albeit it were much within the worth the time of the redemption , because there is a just design in such tacks to incourage the wodsetter to meliorat the wodset lands , and be at expences therefore , seing he will retain the same after the redemption , for the old rent they were worth when wodset , and the rent exprest in the tack will be presumed to be the true rent , unless the contrary be proven . but such a wodset granted to a brother for his portion , wherein the wodsetter was excluded from possession during a liferenters life , the tack was sustained , jan. . . laird of polwart contra home . . but if there be a back-tack of the land , granted by the wodsetter to the reverser , or for his behove , or a provision to count for the profites of the land , or to hold the land at such a rent , it is an improper wodset . . a publick wodset , which is holden of the constituents superior , requireth , beside the reversion , a regress , which is an obliegement upon the superior to receive and enter the reverser his vassal again upon the redemption : the necessity whereof is , because by the infeftment , though of wodset , the constituent is denuded , and the superior hath a new vassal , in whose place he is not oblieged to accept any other but by his own consent . craig , lib. . dieges . . moveth this question , whether a publick wodset , being redeemed , and the reverser re-seased therein , it would be accounted heretage or conquest . and though it seem conquest , because it is a new infeftment , and not the old , yet he well resolveth , that if it return to the person or heirs of him who was first infeft , if it was heretage before , it remaineth so ; but if an assigney to the reversion and regress be insest , it is truly conquest . . it remaineth now , to consider the destitution of wodsets , and how they cease , and this is either by consent or by law ; by consent , either when the reversion is discharged , whereby the infeftment becomes irredeemable , and ceaseth to be a wodset ; which discharge of the reversion is not effectual against singular successors , unless registrat conform to the said act of parl. . cap. . or otherwayes by voluntary redemption of the wodset , which must be registrat by the said act , or else it prejudgeth no singular successor : yet it is not effectual to denude the wodsetter , unless if the wodset were base , there be a resignation ad remanentiam in the reversers hands as superiour ; or if it be publick , that the granter of the wodset be re-seased , and a renunciation without a new infeftment is not sufficient , hope , alienations , kinross contra durie , november . . dumbar contra wilson . but if the reverser or his predecessor was infeft , a renunciation may exclude the renucers right , but will not establish it in the person of the reverser , but he must brook by his own right , hope , alienation , hamiltoun contra mcaddam ; where wodsets are taken holden of the superior , regresses are also taken from the superior , and new infeftment thereupon to the granter of the wodset . but when neversions are carried by assignations , apprisings or adjudications to these who were never infeft , they must not only have a renunciation from the wodseter , but a procuratory of resignation , that thereby they may be infeft ; in which case , the wodset-right is not extinct , but conveyed , and the wodsetter is their author , and may not resuse procuratories of resignation , or charters for confirmation , upon the redemption . and if the wodset-lands be not ward , he must grnt precept of seasine for infefting the reverser holden of the wodsetter , and if infeftments follow thereupon , and the seasine be registrate , there is no necessity to registrate the renunciation or grant of redemption ; so that a renunciation or grant of redemption being registrate , excluding posterior deeds of the wodsetters who yet continues in the fee , and the casuality will fall by his death or deeds . voluntar redemptions are not so safe , being used against pupils and minors , whose tutors and curators ought to proceed legally in infeftments : so likewise in a wodset to a man and his wife , and their heirs : a voluntar redemption by the husband was not found sufficient to to prejudge the wife , who consented not , july . and . . lord cathcart contra 〈◊〉 . . wodsets are taken off legally , when the reversion is legally annulled , as by declarator of expyring thereof ; for thereby the infeftment becomes irredeemable ; but is chiefly by a legal redemption , which doth require an order of redemption , and a declarator thereupon , which must be diversly used in legal-reversions , and in conventional-reversions . . the order of redemption of apprizings and adjudications , by vertue of the legal reversion , is valide by premonition and consignation , and instruments taken thereupon , wherein there is not appointed a determinat time upon which the premonition must be made , or a determinate place where the consignation must be made , nor the person of the consignator ; but the premonition may be upon any number of dayes , sufficient for the consignation : yea , though it were the same day of the premonition , as craig observes : but if the creditor be personally apprehended , the consignation must be in the way most to his advantage , which therefore he may prescrive , being either near the place of premonition ; or the lands wodset , or the paroch kirk where they lie , which craig accounteth competent places ; or if he choose any other more advantages to the consigner , it will be sufficient : but if he choose none , the premonisher must either consign that day where he finds the creditor , or if not that day : or if he used premonition at his dwelling-house , he must consign , either at the appryzers dwelling-house , or paroch kirk where the lands lye , as said is ; if the creditor be out of the countrey , or have no certain abode , letters of premonition will be obtained from the lords , periculo petentis ; for premonition upon sixty days at the cross of edinburgh , and for consignation to be made in edinburgh : yea , the order was sustained for redemption of an appryzing near expyring , albeit the consignation was only at edinburgh , and not at the paroch kirk where the lands lay , or at the debitors dwelling-house , he being out of the countrey , feb. . . murray contra lord yester : but where the party was in the countrey , this order by summonds of premonition and citation , personally taken thereupon ; not being by instrument of premonition , was found void , july . . lord deshmond contra hay . july . . captain crawfoord contra laird of covingtoun , where an instrument of premonition was found necessary , though no determinate time be requisite ; in these cases , the legal hath not been near expyred ; but that a new formal order might have been used , yet the exorbitancy of appryzings hath made the slenderest orders of redemption to be sustained , as if the appryzer had been in possession , whereby a previous count was necessary , to know what sums were to be offered or consigned , a summonds for count and reckoning , and for accepting what was resting , being used within the legal , hath always , been sustained , as was found , july . . doctor kincaid contra halybruntoun . and a consignation of a sum for redeeming of several appryzings made by a singular successor against a singular successor , was sustained , because the instrument bore an offer to consign the sums in all the apprizings , whereto that party had then right , being performed in the process , february . . murray contra lord yester . . the redemption of wodsets upon conventional reversions , is by an order of redemption , consisting of premonition , or requisition and consignation , whih is made effectual by an action of declarator of redemption thereupon . . premonition is an act or deed , whereby the reverser or his procurator premonisheth the wodsetter , conform to the tenor of the reversion , to appear at the place of consignation , and receive satisfaction according to the reversion ; and if it require the wodsetter to come to the place of consignation and receive his money , it is called a requisition : and in either case , it must necessarly be done by way of instrument : this instrument useth to bear , production of the reversion : yet a premonition was sustained without that , seing the reversion was contained in the wodsetters own seasine . and a premonition was not found null , though the procuratory was was not produced , where the procuratory was not called for , january . . mr. john veatch contra leyel of bassandin . but a requisition was found null , because it bore not a procuratory produced the time of the requisition , albeit another instrument of the same nottar did bear a procuratory produced , and that in respect the question was not by a wodsetter and reverser , neither party having damage , but betwixt a donatar of the single escheat , and the creditors of the wodsetter ; so that if the lords supplied the not production of the procuratory , the sum consigned would become moveable , and fall to the fisk ; therefore the lords refused to supply the procuratory , and found the requisition null , and the wodset unredeemed , january . . creditors of wamphray contra laird of calderhal . which for the same cause would hold , if the question had been betwixt the heir and executor of the wodsetter ; for in either of these cases , the formality of the requisition have the importance of the whole right : and where the reversion was in the wodsetters own hand , and craved to be exhibite the time of the consignation , the premonition was found good without it , hope wodsets , lord yester contra scot. the like in a redemption at an appryzers instance , who appryzed the reversion , february . . children of wolmet contra mr. mark ker. the like in a singular successor to a reversion redeeming , february . . collonel james montgomerie contra heirs of halybruntoun . here the reversion was in the wodset right , which was in the defenders own hand . premonition may be done , either personally , or at the wodsetters dwelling house . but it was found null , when the dwelling house was not designed , december . . earl of balcleugh contra young. premonition must be used against the tutors and curators of minors , either generally at the mercat cross ; or otherways to the tutors and curators personally , december . . carnousie contra 〈◊〉 . and a requisition was found null , because not made to tutors and curators , by letters from the lords ; but only by an instrument taken at the mercat cross , june . . gordoun contra earl of queensberry . but where requisition was made specially to one who was repute tutor , it was sustained , hope confirmation , carnousie contra frazer . a premonition was sustained , though the reversion bore , that it should be done at the paroch kirk , and it was done personally , which was accounted more , december . . findlason contra weims . . consignation must also be done by way of instrument , bearing the tenor of the premonition , and the production of the reversion and procuratory in the same way , as it is before said of he premonition , and the coming to the place and day , according to the reversion and premonition , which may be any time of the day ; and therefore , the wodsetter must attend that day from sun to sun ; because the reverser may come any time of the day : and upon the wodsetters not appearing , or not renuncing the particulars contained in the reversion , are to be consigned according thereto , upon publick intimation , by calling the wodsetter , if absent , at the most patent door , which must be done according to the reversion , in forma specifica , and not per aequipollens , hope wodsets , lord frazer contra james crightoun . it was sustained upon the consignation of a discharge of the like sum due by the wodsetter , in respect it was due by an article in the contract of wodset , in stead of money , january . . hog contra hog . consignations use to bear , the numeration if the money . yet it was sustained , bearing the production of all and hail the sum contained in the reversion , march . . grierson contra gordoun of troquhan . here the wodsetter did not appear , or at least did not require numeration . it must also contain an offer of what is generally in the reversion , and of what the defender can further condescend and clear , whereof the reverser was probably ignorant , as the dues competent in appryzings ; and therefore a redemption of teinds upon consignation of the principal sum , and offer of what should be cleared , to be resting of teind bolls , as the prices should be modified by the lords , was sustained , being made good at the bar , february . . cunningham contra walter foster . yea , the order of redemption of an appryzing , was sustained , though the bygone annualrent and penalty were not offered or consigned , the same being offered at the bar , as they were found due and modified , hope wodsets . a consignation was also sustained , as made thorow the wodsetters default , who offered not a sufficient renunciation , though the consigner did not offer the draught of a sufficient renunciation to the wodsetter to subscrive , albeit the wodsetter appeared , and was willing to receive the money and offered a renunciation , which the lords at discussing of the cause , found not sufficient , and found the consigner was not oblieged , even in that case , to offer the draught os such a renunciation as he required , july . . lord balmerino contra gilbert elliot . . the order of redemption being lawfully used , the action thereupon is a declarator of redemption , because it is the order that constitutes the redemption and the declarator , but finds and declares it to be orderly proceeded , and decern-the wodsetter to denuds himself conform thereto ; and therefore , though the reversion be personal , excluding assigneys , if that person once use the order he may assign it , and dispone the lands as redeemed ; and the assigney at any time , even after his death , will have interest to declare , july . . earl marischal contra his brother . march . . murray contra myls . july . . campbel contra dick. declarator of redemption was sustained upon an order used against a defunct , and the declarator pursued against his appearand heir , without a charge to enter heir , or a new order , december . , findlayson contra weims . but in the decreet of declarator of redemption against the appearand heirs , they cannot be decerned to denude , unless they were charged to enter heir ; yet the declarator it self would be sufficient to extinguish the wodset against singular successors : but it would not convey the right of wodset to the redeemer ; and therefore , if he were not infeft , or heir to a person infeft in the wodset lands , it would be necessary to charge the appearand heir to enter , to the effect he might denude and dispone ; and therefore , a declarator of redemption against an appearand heir , did bear , that the sums should not be given up till the appearand heir were infeft and resigned , january . . campbel contra brison it was also sustained at the instance of an appryzer of the reversion , without calling him from whom it was appryzed , but only the wodsetter , december . . carnousie contra lesmore . in respect that the appryzing was a legal assignation of the right of reversion granted by the wodsetters author : and there have been no interveening singular successors , but in redemptions against singular successors in wodsetts , whose rights do not instruct that they are derived from the granter of the reversion , the pursuer must instruct that the granter of the reversion stood infeft in fee : otherways that singular successor will not be oblieged to acknowledge the reversion ; and because the successors of the first wodsetter would have warrandice against the first wodsetter or his heirs , if they had disponed the lands without reserving the reversion ; therefore in that case , only the first wodsetter or his heir , if he can be condescended upon , having any visible estate , have been of old accustomed to be called ; which is not necessary in other cases , and hath been the ground of that decision , july . . fisher contra brown. where it was found necessary to call the heirs of the granter of reversion , if the defender could condescend upon them ; for the ancient custom hath been to have more respect to the heir of the granter of the reversion , then to the singular successor , present possessor of the wodset , as craig observes , l. . dieges . . that sometimes redemption hath been sustained upon premonition and citation , only of him who granted the reversion or his heir . but ever since the present heretable possessor of the wodset , must necessarly be premonished and cited , and but seldom the granter of the reversion or his heir , as where the granter of the reversion was immediat author to the singular successor , against whom the order was used , as in the former case , his own rights behoved to acknowledge the right of the granter of the reversion , who was common author and might intimate the plea to him , but could not be oblieged so to do , where his own right shew no right from the granter of the reversion . a redemption being voluntary without process , was sustained against a sub-wodsetters right , being a liserent by the wodsetter to his wife , albeit it was 〈◊〉 ; yet the redeemer was not found oblieged to know it ; but it was found taken away without any order against her , or citation of her , iuly . . lillias hamiltoun contra her tennents . redemption upon a rose-noble used upon the sabbath-day , albeit the instrument of consignation , did not bear , the reversion was shown , nor read , was sustained , spots . redemption , laird of newwark contra his son ; but this would not be drawn in example amongst strangers , where the wodset is redeemable upon considerable sums . for though consignation upon the sabbath-day by a father against his son , be sustained , 〈◊〉 non debet , sed factum valet : yet the wodsetter cannot be oblieged to attend and perform the requisites of consignation , by numeration of money , perusal of writes , and subscribing a renunciation upon the sabbath-day . redemption was sustainedwithout necessity to the pursuer , to uplift the sums consigned from the consignatar , and re-produce them at the bar , unless it be instructed he had taken them up , december . . grierson contra gordoun . where the extract was superceeded till the consignatar was charged summarly upon letters granted upon the instrument of consignation to exhibite the consigned money , but no annualrent was found due after consignation . a redemption was sustained without production of the reversion , the pursuer being an appryzer , and proving that the reversion was in the defenders own hand , february . , children of wolmet contra mr. mark ker . the like where the pursuer was a singular successor , february . . collonel james montgomery contra robert halybruntoun . yea , an order used by an assigney sustained , though he shew not his assignation till the process of declarator , yet so as the wodsetter was not countable for the rents , but from the production of the assignation , february . . lord borthwick contra pringles . yet redemption was not sustained at the instance of an heir , not being entered at the time of the order , though entered before declarator , ianuary . . lord lovat and kintail contra lord mcdonald . but if the redeemer uplifted the consigned money , he must produce the same with the annualrent , and will have right to the rent during that time , hope confirmation , baikie contra , december . . forrest contra brounlie . november . . duke of buckleugh contra scot of thirlestain . redemption was not eleided , because the sums were consigned in the hands of the redeemers own servant , and taken up from him , seing it was offered at the bar , and no special provision in the reversion , anent the consignatar , hope confirmation , laird of drum contra wishart . the like though there was an instrument of another nottar contrary the order of redemption , july . . earl of kinghorn contra kincaid . . the effect of declarator of redemption is , that it makes the redeemed lands belong to the redeemer , and makes the sum consigned moveable and to belong to the wodsetters executors , if he have accepted the consignation or declarator , do follow in his lifetime ; but if declarator do follow after the wodsetters death , the consigned sums will not belong to his executors but to his heir , who remains propietar of the wodset : but if declarator past in the wodsetters life , it did take away the real right of wodset , so the money came to be in the property of the wodsetter , as moveable , and fell to his executor , which till a declarator was not so , seing the order might be passed from , december . . 〈◊〉 contra miller ; where it was found , that the consignatar was oblieged to re-deliver the consigned money to the consigner , his heirs or assigneys , passing from the order , though the wodsetter , to whose use it was consigned , was not called . the like was found , that till declarator the congned sums remain in the property of the consigner , and belong not to the executor of the wodsetter , but to his heir : or where declarator of redemption was after the wodsetters death , january . . thomas nicol contra lourie . iune . . laird of lie contra forbes of blacktoun . upon declarator of redemption , letters will be obtained summarly against the consignatar , to re-produce the consigned money , december . . grierson contra gordoun . but though the instrument of consignation will instruct the consignation against the wodsetter ; yet it will not prove against the consignatar , without his oath , or write subscribed by his own hand , ianuary . . lausree contra miller . . redemption was not elided by a singular successor , obtaining infeftment of the wodset landsafter the order , or at least the infeftment being base , not cled with possession till after the order , though it was cled with seven years possession before declarator , hope confirmation , earl of errol contra tennents and lady seaforth . . wodsets are also taken off by premonition or requisition , requiring the sums upon which the wodset is granted , which makes the sums moveable and the infeftment of wodset void , yet so that the requirer may pass from his requisition , and the infeftment revives , january . . james hamiltoun contra tennents of calder . the requisition may be also past from indireclty , by uplifting the duties of the wodset lands , for terms after the requisition , hope usury , thomas waliace contra laird of edzel ; or taking posterior terms of annualrent from principal or cautioner . requisition requires also the same solemnities that premonition requires ; and therefore it was not sustained , where the procurator designed no time nor place to pay the money required , and the instrument was mended at the bar , as to the reading of the procuratory , and the truth of it referred to the defenders oath , which the lords admitted not , the instrument being otherways produced in judgement ; this was in expyring of a reversion , for not payment upon requisition . the like when the requisition bore that , february . . maxwel contra laird of innerweek . the like where the requisition mentioned not the production or the procuratory , though it bore not it to be called , november . . laird of bass contra wauchop . this was in a requisition only to validat a charge ; the contrary was found , where it bore , that the procurators power was known to him and the witness . ianuary . . stuart contra stuart : here there was an apprising deduced upon the requisition . the like where the procuratory was not called for , and was in the procurators hand , june . . hellen home contra lord justice clerk. . declarators of redemption , or renunciations , or grants of redemption , do ordinarly bear , that the wodsetter renunceth all right to the wodset lands ; and albeit he have a distinct right ; it will not stop the declarator , nor obliege the redeemer to debate thereanent in that proces : nor will it stop the entering the redeemer in the possession , in which he entered by the wodset ; but that right will only be reserved , november . . sir archibald stuart of castlemilk contra duke of hamiltoun : and if the wodsetter condescend upon , and give evidence of any other right beside the wodset , it will be particularly reserved , or the renunciation will only bear , all right by vertue of the wodset , hope confirmation , baikie contra iuly . . earl of errol contra bukie . and in the case of redemption of an appryzing , the renunciation was restricted to the right in question , february . . murray contra lord yester . declarators of redemption do descern the wodsetter to renunce , and resign all right to the wodset lands , unless a right distinct from the wodset could be instructed , which will be excepted , or an evidence given of such a right , which thereupon will be reserved : but a general reservation of other rights was not sustained , but a declarator of redemption was found a species of declarator of right ; after which , no right competent and omitted , will be sustained , which was then known , february . . duke of lauderdail contra lord and lady yester . title xxi . extinction of infeftments , where , of resignation ad remanentiam , recognition , disclamation , purpresture , and other feudal delinquences . . the form of resignations , ad remanentiam . . they may be by procurators , or propriis manibus . . instruments of resignation prove not without a warrand in write . . resignations ad remanentiam , were valide without registration , till the year , . . resignations imply all burdens by the vassal affecting the fee. . resignation by him who hath no right , with consent of him who hath right , how far effectual . . how far superiours may not reject resignations , ad remanentiam . . how infeftments become extinct by succession , as heir , or singulari titulo . . the original of extinction of fees , not by the vassalls consent , but by his deed . . recognition by alienation of the ward fee. . recognition by infeftments , a se. . whether recognition can be incurred by deeds in minority , or on death-bed . . whether recognition can be incurred by sub-feudation . . how far feues exceeding the half of the full rent , may subsist without recognition . . in what cases other feues of ward-lands , infer not recognition . . recognition by alienation , is only of lands clearly ward , simple , or taxed . . recognition is not incurred , unless the major part be alienate . . recognition is not incurred by alienations to the vassals appearand heir . . whether recognition be incurred by alienations , on condition that the superiour consent . . inhibition excludes not recognition . . recognition is not excluded by the vassals drunkeness , when he alienat . . how the superiours consent may be adhibite to alienations , to shun recognition . . how far the kings confirmation without a novodamus , takes off recognition . . how recognition is taken off by homologation . . recognition excludes all infeftments , tacks , or servitudes by the vassals deed , without the superiours consent , or authority of law. . servitudes by prescription are not excluded by recognition . . in recognitions who must be cited and who may compear . . the title and order in declarator of recognition . . disclamation , how incurred . . purpresture , how incurred . . feudal delinquences adduced by the feudists for resolving fees . . attrocious deeds against vassals fidelity to their superiours , resolving their fees . . how far the ignorance or weakness of the vassal , excuses , with other exception for the vassal . . whether the delinquence of the sub-vassal infers recognition . we are not here to speak of the common wayes of extinction of infeftments , and other rights , as the extinction of the subject matter , prescription , forefaulture , homologation , or acceptance of incompatible rights , neither to these ways by which an infeftment is extinct as to one , but is conveyed to another , which falleth in consideration amongst conveyances of rights : but of these ways proper to extinguish infeftments , and make the right toceass , and to return to the superiours , and these are two . either by consent of the vassal , or by law. . infeftments are extinct by consent , by resignation made by the vassal , who stands infeft in the lands to his superiour , ad perpetuam remanentiam , to which there is necessarly required , as a solemnity thereof , an instrument of resignation in the hands of a nottar , in the same way that their constitution was perfected by an instrument of seasine , their distitution is consumate by an instrument of resignation , which no other write nor acknowledgement of the vassal , of the being thereof will supply , much less will the deeds done otherways prove ; and as in seasines there must be a tradition or delivery of possession by some token or symbol , as by earth and stone , &c. so in the instrument of refignation there must be a re-delivery of the possession by an accustomed symbol , which ordinarly is by delivery of staff and bastoun ; yet in this they differ , that the delivery of the seasine must be upon the ground of the 〈◊〉 , naturally or by union ; but the resignation may be any where : and as seasine may be given , either to the vassal or his procurator ; so may the resignation be either to the superiour himself or to his commissioners , authorized to that effect . . and though instruments of resignation use to be by procurators , warranted by a procuratory of resignation : yet as there may be seasines given by the superiour , propriis manibus , so may there be resignations by the vassal . . but in both the instrument of resignation alone is not sufficient , as being but the assertion of a nottar ; but they must have for their warrand a disposition , or other adminicle ; and therefore , it is statute , par. . cap. . that where such resignations are by procurators , the procuratories be subscribed by the party or nottars ; and if the resignation be propriis manibus , that the instrument be so subscribed , otherways to be null , because the subscription of the instrument is in that case the only probation of the warrand thereof : but if there be a disposition or obliegement to infeft the instrument of resignation , though not subscribed by the resigner , will be sufficient as warranted by the disposition or obliegement . but seasines and resignations did formerly differ in this , that seasines must be registrate within sixty dayes after dates , par. . cap. . . but so needed not instruments of resignation ad remanentiam ; for though by that statute , renunciations of wodsets are to be registrat , it was not extended to renunciations of irredeemable rights ad remanentiam , these being either omitted by inadvertency or of purpose , in the favours of superiours , that rights may be taken with their consent : yet in so far , that excellent statute was defective , till the late act of par. . cap. . whereby instruments of resignation are null , if not registrat within sixty dayes . by which , and others to that purpose , purchasers in scotland , may better know the condition of these with whom they contract about infeftments , and be more secure of lurking rights then any where ( so far as i can learn ) in the world. . by this resignation so made , the property is consolidate , as it was the time of the resignation , and is affected with all real burdens , or debita fundi , that validly affected it before , as feues , tacks , annualrents , servitudes . for , though all such burdens as are not warranted by the superiours consent , or by law , cease when the fee returns to the superiour , either for a time by ward , non-entry , &c. or for ever by recognition ; yet when it returns thus by consent , it comes cum suo onere , which is very just and fit , seing else such securities might easily be evacuat , by voluntar resignations in the superiours hand . there is another resignation , which is called in favorem , being for new infeftment to the resigner or some other , but thereby the fee is not extinct , but either renewed or transferred ; and therefore , it shall be considered hereafter . . craig upon this head , very fitly moveth and solveth this question , whether the vassal may renunce and resign his fee to the superior , though he be unwilling ; and instances in two cases ; first , in a vassals holding a very inconsiderable parcel of land ward , and did thereby become obnoxious to his superiour for the value , his tocher having relation to the whole estate , which tocher did much exceed the worth of the tenement : and yet a resignation thereof being judicially offered , the superior was suffered to refuse it , unless the value of the marriage were first payed . the other of a burgess , offering to renunce his burgesship for shunning a great taxation put upon him : and therefore , solveth the case upon the common axiom , cuique licet renunciare favori pro se introducto . and therefore , the fee of its nature being gratuitous in favours of the vassal , may be renunced , but that will not prejudge the superiour of any casuality befalling to him before the renunciation , but will have only effect ad futura : and therefore , a vassal judicially disclaiming his superior , was not admitted so to do , to exclude the life-rent already fallen , march . . john stewart contra laird of wedderburne . no contract , obligation or personal right , nor any less then an instrument of refignation , will take away infeftment ; for though these may be sufficient against the granters thereof , by a personal objection , whereby they cannot come against their own deed : yet truly , the real right stands in them , and they are not denuded thereby ; and so a renunciation , without the solemnity of an instrument of resignation , will not suffice to obliterat an irredeemable fee , though it may be sufficient to evacuat any personal right , as servitude not requiring infeftment ; yea , or a liferent , though constitute by infeftment , because it is communicable to no other persons by infeftment , and therefore , passeth by assignation or resignation . the reason hereof is , because by the common custom of nations , real rights cannot pass by sole consent , without artaining possession in the way prescribed by law : and therefore , this symbolical possession , which alone the law alloweth as sufficient , either in the constitution or destitution of fees , must be adhibite , and the real possession of the tenement it self will not suffice in either case , as is before instanced in seasines by several decisions . so a renunciation without a formal resignation , was not found relevant to take away the infeftment renunced against a singular successor , november . . dumbar contra wilson . resignation cannot be effectual , if the resigner be not infeft ; for he who is not invested , cannot be divested , or if by his infeftment , he hath no valid right . . craig discusseth this question also in that place , whether consent of one who is infeft , and thereby hath right , will validat the resignation of another who is not infeft and hath no right : which he determineth in the affirmative , with good reason ; for though the consent alone would not be sufficient , yet seing the form of the resignation is done , though in the name of him who hath no right , yet by consent of him who hath right , here is both the substance and solemnity of the act ; and it is alike , as if the resignation had been by the consenter , which i doubt not will hold , though the consent be but adhibit in the beginning of the disposition or contract . and though the consenter , for all right he hath , doth not dispone , as is ordinary , for further security ; yea if the consent be not repeated in the procuratory of resignation , or mentioned in the instrument of resignation ; for being exprest generally in the entry of the disposition or contract , it reacheth to every article thereof , and all done conform thereto . consent hath the same effect in the constitution of fees ; and so the consent to an annualrent , by a party having right and infeft , was found to validate the annualrent , though the disponer was not infeft ; and so did exclude a tack set by that consenter afterward , december . . jean stirling contra yet , if more persons should dispone for their several rights , without consenting one to another , if any of them be omitted out of the procuratory or instrument of resignation , in whom truly the right standeth ; nonthing will be validly done , though that party be also in the disposition : and this is the reason , why when many persons dispone or resign , they do it all with one mutual consent ; for thereby each of their rights doth contribute to the deed of the rest , though some of them were omitted to be repeated in the procuratory , instrument of resgination , or infeftment following thereupon , the deed would be valid : but it is safest to repeat their consent in the resignation and infeftment . . infeftments are also extinct , when the superior adjudgeth or appriseth from his vassal ; for thereby it was found , that the property was consolidat with the superiority , spots . apprising , stevinson contra laird of craigmillar . or , if the superiour succeed as heir to the vassal ; in which case , though the superiour upon supplication obtained precepts out of the chancelary , to infeft him in the fee , it was thought , as superior , he might have infeft himself as vassal : but he would not have been so secure by a declarator of consolidation , upon the superiours special retour , as heir to his vassal in the lands ; because , that way would make a defect in the security of land-rights by the negisters , in which , decreets of consolidation are not required to be recorded ; whereas the superiors seasine , either on the kings precept or his own , behoved to be registrat ; and if the superiour acquire the property by apprifing or adjudication , the allowance thereof must also be registrate . the the like effect will follow , if the vassal become heir , or singular successor to the superiour , whereby being infeft in the superiority , he may as vassal resign to himself as superiour ad remanentiam . . it is more disputable , how and under what consideration fees are extinct , otherwayes then by consent : some hold that they are extinct by the attrocious delinquency of the vassal against the superior , as the penalty or punishment thereof ; and others conceive , that acknowledgement and fidelity being necessarly involved in all fees ( as is shown before ) though it be not exprest ; so this is implyed as a legal resolutive or irritant clause , that if the vassal failie in his duty , his fee becomes void . and others hold , that fees being of their own nature gratuitous , even though there be a cause onerous , yet they retain the nature of a donation : and therefore , as all donations are revocable propter ingratitudinem ; so are these , which soever of these be the ground , the consequences and effects are much to the same purpose . but i incline to the middle opinion ; for unless it were evident by law , that the penalty of that delinquence were such and so applyed , it would hardly be consistent upon that ground , seing otherwayes , as we have shown before of delinquences , the punishment is publick , and would belong to the magistrate : and therefore , for several delinquencies , forfaulture of fee is introduced , without benefite to the superiour , who as a private party , can have no more but a reparation equivalent to the damnage sustained by him ; and so the alienation of the fee , without his consent or incroaching upon the border of his property , would not infer , for its reparation , the return of the fee , how great soever . and for the last , though fees of their nature be gratuitous , yet they are oft-times for an equivalent price , and so the less ingratitude can be alledged ; yea , though it be true , si ingratum dixeris , omnia dixeris , yet fidelity and trust is a much stronger bond then gratitude : and the breach thereof hath the most powerful consequence , betraying of trust being most hurtful and hateful to mankinde ; and therefore , seing fidelity is necessarly and properly in all fees , and is essential thereto and inseparable therefrom , it looketh likest the surest ground from whence the eviction hereof may flow , and if it be truly gratuitous , it is an aggravating circumstance , making the deed more odious . but whatsoever it be , it is agreed by all , that the deed must be of knowledge , moment and attrocity , though there be many such heaped up by the feudists , yet many of them have no place with us , where both such deeds are rare , and therefore the decisions thereupon are few ; and certainly our fees being ordinarly onerous , are not evacuated but by such as are either named and known in law , or which are very attrocious . there be three such wayes of extinction , which have peculiar names in law , recognition , disclamation , and purpresture . of which therefore in the next place . recognition is the superiours returning to own the fee ; and therefore may be extended to all the wayes by which it returneth through the vassals infidelity , as is hereafter exprest . but the least culpable , and yet most ordinary way of incurring recognition , is by the vassals disponing irredeemably or under reversion , his fees holden ward : for by this he renders himself incapable to serve his superiour , and in a manner renunces and disclaims him . this kind of alienation makes recognition of ward-lands , but fees feu or blensh do not recognosce by such alienations , but by the attrocious infidelity of the vassal . . the nearest cause of recognition , is the vassals alienation of the fee without consent of the superiour , which is a legal clause irritant implyed in the nature of proper fees or ward-holdings , though it be not exprest , that though the vassal alienat the fee , it shall return to the superiour , whether the rise hereof be from the personal obligation of fidelity , which the vassal oweth to the superiour only , or from the obliegement of gratitude and service , or from that peculiar choice of the person and race of the vassal which the superiour hath made , contrair to which , a stranger cannot be obtruded upon him ; neither can the vassal withdraw himself from the fidelity , or render himself unfit for his service , or from all these ; yet in this do most agree , that the nearest cause of recognition is the alienation of the fee. so then , the main difficulty is , what is meaned by that alienation by which recognition is incurred , craig , lib. . dieges . . declareth , that this alienation cannot be by naked contract or disposition , till seasine follow ; for , these being but personal and incompleat rights , do not alienat the fee from the vassal , but only constitute upon him a personal obliegement so to do . it is also clear , that by infeftment granted by the superiour upon resignation , there can be no recognition , because the superiours accepting of the resignation , importeth his consent ; so that , the question will only remain , when the vassal granteth disposition or charter a se to be holden of his superiour , and before the superiours confirmation obtained giveth seasine : for , the confirmation being the express consent of the superiour , if the seasine be after it , there can be no hazard of recognition , or otherwayes , while the vassal granteth a subaltern infeftment to be holden of himself . . as to the first case , it seems there can be no recognition incurred by infeftments granted by the vassal to be holden of his superiour , because , if these be confirmed , the right is null , and there is no alienation nor transmission of property , but the vassal granter of the infeftment remains still proprietar . and therefore , such an infeftment is equivalent , as if the vassal did alienat upon condition , that the superiour should consent ; and if he did not consent , the infeftment to be null . in which case , most feudists do agree , that by such infeftments there is no recognition ; and this reason is the more fortified , that craig in the fore-cited place relateth , that an infeftment null for want of registration , was not found to infer recognition , in the case of the kings advocat against kenneth mackenzie and bain . for solution of this difficulty , it is not to be denyed , that if a seasine be null by defect of any substantial , or essential , necessarly requisite to seasine or symbolical delivery of possession , there would follow no recognition , as if there were no tradition of earth and stone , or symbol requisite or not , by the superiour or his bailie or not , to the vassal or his procurator or not , upon the ground of the land naturally , or by union . but though seasine may be null , by defect of some accidental solemnity introduced by statute or custom , and not necessarly involved in the nature of tradition , as the indiction or year of the princes reign , though law should declare the seasine null for want of these ; yet , the vassal performing such essential requisites , the feu falleth in recognition : and therefore , there seemeth no ground to follow that decision adduced by craig , excluding recognition upon the nullity of the seasine for want of registration . but as to the case proposed , the superiours confirmation is not essential to the vassals seasine ; neither is it so required by the common feudal customs , as with us : for thereby , if the superiour did acquiesce , approve or homologate , the seasine granted by a vassal to a stranger , the same would be valid without a formal confirmation in write ; albeit by our custom , such infeftments till confirmed are null , not only as to the superiour , but as to all other third parties , and so is become as a substantial of the infeftment , not being truly essential by the common fedual customes , it doth not exclude recognition ; and as craig in the forecited place rendereth the reason , that infeftments by the vassal , a se , not confirmed , infer recognition , is because he hath done all that in him is to alienate the fee , there being no act remaining to be performed by him or his procurator ; and therefore , in the declarator of recognition , pursued at the instance of lady anna hamiltoun lady carnagy contra lord cranburn , upon the earl of dirletouns disponing of the lands of innerweek holden of the king ward to cranburn , and infefting him therein to be holden of the king ; this defence was not found relevant , that the seasine was not confirmed , and so null , though done upon death-bed , accepted for a minor absent and inscient , and recalling and reducing . . for in such cases as in rebellion or escheat , there is no priviledge of minority nor of deeds upon death-bed against the superiour , though done by a minor , except the deeds upon death-bed , be in prejudice of the heir and be reduced by the heir , ex capite lecti . but in this case dirletouns heir did not quarrel the disposition made by him , as done upon death-bed , but did take a gift of recognition from the king. but where the gift of recognition was not granted to the heir-male , who was heir in the investiture ; but to an heir female , the heir-male proponing , that the alienation was upon death-bed , and so null as to him : the lords found , that if the disposition was upon death-bed , the defence was relevant and competent by way of exception , the declarator of recognition not being a possessory judgement : but where the disposition was in leige poustie , and was delivered with a precept of seasine simply , without 〈◊〉 , not to take seasine base upon the precept , which imported a warrand to take seasine thereupon ; it was found , the taking seasine when the disponer was upon death-bed , upon that precept subscribed and delivered in 〈◊〉 poustie , did infer recognition , july . . barcley contra barcley . . it is much debated amongst the feudists , whether by sub-feudation , recognition be incurred , or whether it be comprehended under alienation ; because in libro jeudorum , albeit alienation of fees be expresly prohibite , yet in the same place , as craig observeth , sub-feudation is allowed ; because by sub-feudation , neither the personal right betwixt superiour and vassal is altered , seing the vassal continues vassal , and lyable to all these : neither is the real right and interest of the superiour in the fee it self diminished , but he hath the same access thereto , as if there had been no sub-feudation ; yet sub-feudation in all cases is accounted alienation : and where alienation is prohibite , sub-feudation is understood ; and so emphitiosis , or feu-ferm , which is at least a perpetual location . for solving this difficulty , it must be remembered , that feudalia are localia , regulable according to the custom of the several places , and according to the nature of feudal-rights , and common feudal-customs , where special customs are not ; and therefore , there is no question of this point in france , or most places in germany , where alienation of fees many ways is allowed : but in italy and other countreys , where the common feudal customs rule ordinarly according to the feudal-books . the doubt remaineth , which may be cleared thus : first , though in some cases alienation be extended to location , yet it is not so by the common feudal customs . secondly , if the subfeu-dation be a real feu-ferm , whereby the feu-duty is considerable and competent to intertain the vassal ; such sub-feudation is thereby accounted only lacation ; nor doth it infer recognition , being in effect no more then a perpetual location , whereby the antinomy in the feudal law is sufficiently reconciled , that such sub-feudations are not alienations : but if the sub-feudation be ward , blensh , or in mortification , or though it be under the name of emphyteosis ; yet for an elusory , or an inconsiderable and unproportionable feu-duty , which by no estimation can be correspodent to the profite of the fee , but within the half of the true worth ; in these cases the sub-feudation is alienation inferreth recognition . . as to our own customs in this point , they do agree to the common feudal customs , as to subaltern infeftments , blensh , ward , or in mortification , or elusory , or unprofitable feus . but as to feues by which the major part of the profite of the ward or fee is not taken away , though such cases have not occurred to be contraverted , they seem not to infer recognition ; for if the major part be not alienate , subaltern infeudations , though blensh or in mortification , infer not recognition , when these rights are disjunctim of parts of the fee ; there appears no reason , that the subfeudation of the whole , with a feu-duty equivalent to the half of the true rent , whereby in effect the half is not alienate , seing the dominium directum , of the whole , and the profite of the half is retained , should infer recognition , especially now when generally fees are granted for causes onerous . . and by the statute allowing feues , par. . cap. . it is provided that the feu be set to a competent avail , which by the said statute is cleared to be without diminution of the rental ; and which is commonly interpret the retoure duty , because it was the publick valuation and rate at that time . and by the said statute , such feues are confirmed and declared not to be prejudged by the ward , without mention of the hazard of recognition , as not being consequent upon such feues . but this statute being abrogate as to the leiges , par. . ja. . cap. . all sub-feues of ward-lands , holden of subjects without the superiours consent , are declared null and void : but there is no mention of recognition to be incurred thereby . and feues are only prohibited as being in prejudice of the over-lords , who are not prejudged if the major part be not alienate , seing all subaltern infeftments , not exceeding the half , are allowed by law ; and albeit the narrative of the act respect feues preceeding it , yet the statutory part is only as to feues granted thereafter . and the like prohibition is appointed for the king and princes vassals , par. . cap. . the effect of this act , as to the vassals of the king and prince , was suspended till the next meeting of parliament , and the vassals exempted therefrom in the interim , par. . cap. . and the said act was wholly repealed , par. . cap. . and so remained until all these parliaments were rescinded , seing the private rights of parties acquired thereby , by the general act rescissory , par. . cap. . but it hath been found , that alienations during these acts now rescinded , and during the usurpation , when wards were discharged , did infer recognition , seing the vassal did not seek confirmation after the kings return , december . . maitland of pittrichy contra gordoun of gight . the like was found in the recognition at the instance of sir george kinard contra the vassals of the lord gray . the like though the base infeftment inferring recognitien , was in anno . when there was a statute then standing , allowing such infeftments , seing after rescinding that statute , no application was made to the king for confirmation , january . . cockburn of riselaw conira cockburn of chouslie . but recognition was excluded where the vassal required the superiour to confirm the subaltern right , debito tempore , or did purge the same by procuring resignations , ad remanentiam , to himself from the sub-vassals , february . . viscount of kilsyth contra hamiltoun of bardowie . but recognition was not found against a pupil upon his tutors taking infeftment for him , during the usurpation , july . . jack contra jack . whereby it is clear , that feues have no effect against the superiour , as to the ward , non-entry more then tacks . . whether the alienation be by infeftment , holden from , or of the vassal ; there is no recognition with us , except in ward-holdings ; yea , if the holding be dubious , and soa probable ground of error of the vassal , as being a payment of money in the reddendo , with service used and wont ; which though truly ward , yet because the payment of money may render it dubious , craig holdeth in the said dieg. l. . that it would not infer recognition ; yet this will not give ground to think that alienation of lands , taxt-ward , would excuse from recognition , because ward is more clear , and expressed nominatim , in that case in it self , for the casualities thereof , being taxed ; as the marriage and ward-duties : which 〈◊〉 is but a liquidation , or location of these casualities when they occur , and no alteration of the nature of the fee ; and therefore in the said pursuit , at the instance of the lady carnagie contra the lord cranburn , it was not found relevant to exclude the recognition , that the ward was taxed . . it is also clear , that alienation , whether by infeftment holden of , or from the vassal , not exceeding the half of the fee , inferreth not recognition , so much being indulged to the vassals for his conveniency or necessity ; but if together or by parcels , or by annualrent , the major part be alienat , not only that which then was in the vassals person falls under recognition ; but as craig holdeth in the forecited place , dieg. . l. . even the whole fee ; so that parcels alienat validly , but without the superiours consent before , become void and return . but though the vassal grant infeftments exceeding the half of the fee ; yet if some of them were extinct before others were granted , so that there was at no time rights standing together exceeding the half of the see , recognition is not incurred , february . . iohn hay contra creditors of muirie . but deeds done by predecessors and their heirs or authors , and their successors were in that case conjoyned . upon the same ground an infeftment of the see in liferent , would not infer recognition , because it exceeds not the half of the value . yea , recognition was found not incurred by granting an infeftment in warrandice ; for warrandice is but a hazard in case of eviction , not equivalent to the half of the worth of the lands granted in warrandice , unless the right of the principal lands were manifeftly defective , feb. . . cathcart contra campbel . . recognition is not inferred by an alienation to the vassals appearand heir ; by the ordinary course of law , as by a father to his eldest son , because the fee will befall to the son after the fathers deceass . neither was it inferred by an alienation granted by a grand-father , with consent of his son to his oye , who was alioqui successurus , by the course of law , hope recognition , adam rae contra laird of kellie . yet recognition was found incurred by a vassals infeftment to his eldest son , his heirs and assigneys , the son having disponed the major part to strangers , seing the father who was vassal , did not bind up his son from disponing , by a clause irritant , neither did the son purge the alienations made by him , during his fathers life , july . . sir charles erskin contra forbes of achintoul . and recognition was found incurred by the infeftments of ward-lands , by a husband to his wife in fee , failing heirs ofhis body , albeit the wife did not acept or make use of the same , but brooked by a prior conjunct infeftment , february . . knock contra lady knock. and recognition was found to be incurred by an alienation by the vassal to his brother , who for the time was his appearand heir , but not necessarly by the ordinary course of law , seing the vassal might have had children of his own , and so his brother could not be called alioqui successurus , unless it were by accident , spots . recognition , kings advocat and his son contra earl of cassils and collane . the like , july . . lord hattoun contra earl of northesk . . it is more questionable , whether recognition is incurred by a conditional alienation , bearing , if the superiour consent , or saving the superiours right , craig following baldus in the said three dieges . l . . declareth , that if such clauses be insert bona fide , they infer not recognition ; but contrariwys , if they be done fraudulently , as when the vassal seaseth and possesseth a powerful person , whom the superiour cannot easily dispossess , or his enemy concerning whom there can be no doubt of the superiours will , or if the superiour have declared his will upon the contrary . but for clearing further of the point , distinction would be made of the nature and tenor of the clause , which may either be suspensive or resolutive of the property or fee in the former case : tradition is only made of the possession , but the property is suspended till the superiours will be known , as if the vassal dispone and possess another without seasine , there could be no recognition ; or though he possess him by an instrument ofpossession , bearing expresly , that he should have no right to the property till the superiours consent were obtained ; this were a suspensive clause , like to the addictio in diem ; in the civil law , by which only possession and not the property was transmitted for that time ; and so till the purification of the condition , it could be no alienation : but when the clause is only resolutive , not hindering the transmission of the property , but resolving or annulling the same , though transmitted ; in such an case , such clauses do not exclude recognition , because there is truely there an alienation , without the superiour consent , which is only to be disannulled by his disassent ; much less can such general clauses as salvo jure cujuslibet , or salvo jure superioris , avoid recognition . . recognition was found not excluded or burdened by inhibition against the ward-vassal , before the gift and declarator of the deed , inferring recognition , seing the creditors inhibiting did not pursue reduction before declaratorof recognition ; december . . john hay contra bethark and laird of balagarno . . neither was recognition excluded , because the deeds inferring recognition was done when the disponer was drunk , not being to stupidity , impeding reason , july . . lord hattoun contra earl of northesk . . to come now to the superiours consent , it may be either antecedent , concomitant , or consequent to the alienation ; and it may be either express or tacite , all which will be sufficient to avoid recognition , albeit many of them will not be sufficient to make a valide infeftment , if the same be granted by the vassal , to be holden from him of the superiour , which by our custom is null till it be confirmed , whereunto an anterior consent or homologation in any ways will not suffice , craig in the forementioned dieg. . relates the opinion of the feudists , whereunto he agrees , that if the vassals fee be granted to him , his heirs and assigneys whatsomever , that thereby ther is granted , a general antecedent consent , of the superiour to his vassal , to and assigneys whatsomever , that thereby there is granted , a general antecedent consent , of the superiour to his vassal , to alienat or assign to whom he pleaseth . but the contrary was found in the case of the lady cranagie contra lord cranburn , feb. . . and that the disposition to assigneys did only importa power to assign the disposition , before infeftment taken thereupon . . there is no question but the superiour confirmation is sufficient , even the kings confirmation , though without a novo damus , albeit it may pass in exchequer , without the knowledge & advertency of the recognition incurred ; it was found sufficient being done before the donatar of recognition was infeft , hope recognition , rae contra laird of kellie . which confirmation doth secure against recognition , falling by thatinfeftments confirmed , but doth not secure against recognition upon other subaltern infeftments not confirmed , which are not considered to be known by the king or his officers , without a novo damus , and so imports but a passing from recognition by the infeftment confirmed , but not to import an absolute ratification , pro omni jure , february . . lord hattoun contra earl of weims . the like was found , february . . john hay contra creditors of murie . and a donatar of recognition , having granted precept of clare constat , acknowledging the vassals right , was found thereby excluded , albeit the precept did bear , to be in obedience , of precepts out of the chanclery , june . . andrew gray contra howison and gray . but the superiours consent is not inferred by granting charters for obedience upon appryzing , though before any infeftment of the donatar , hope recognition , laird of lugtoun contra laird of lethendie . . the superiour consent also by homologation , is sufficient to avoid recognition , as if it were express consent , as if the superiour require the new vassal or sub-vassal , to perform the services due out of the fee , for thereby he acknowledges him vassal , as is observed by craig , in the case betwixt the laird of calderwood and maxwel of calderhead . or if the superiour should pursue the new vassal for the avail of his marriage , liferent-escheat , or other casuality of the superiority . . recognition being incurred , so openeth and returneth the fee to the superiour , that no debt or deed of the vassal , doth burden the same , but these only which before that time were established by consent of the superiour , or authority of law , as appryzings , adjudications , feu-ferms , conform to the several acts of parliament . but even such being constitute after the 〈◊〉 , whereby recognition is incurred , albeit bona fide , for onerous causes , before any diligence or declarator of recognition ; yet they fall in consequence with their authors right , february . . earl of balcleugh contra scot. recognition excludeth all tacks set by the vassal without the superiour consent , whither prior or posteriour , unless such as are set for the utility and profite of all parties interressed , having no advantage therein , as before hath been showen in the matter of ward and non-entry , for though tacks be established by acts of parliament , against purchasers , yet not against superiours . . recognition doth also exclude servitudes upon the fee , by the vassals consent without the superiours , as thirlage , &c. yet this will not reach servitudes , introduced by long custom or possession , and strengthened by prescription , wherein the consent of all parties having interest , is presumed , that they can never come in the contrary ; for though it was most proper to the vassal to look to his fee , yet the superiour doubtless might have interrupted , which would have been sufficient for his own interest . and prescription being introduced to secure property , and put an end to pleyes , will not be infringed but upon evident ground . . seing recognition is exclusive of all interests depending upon the vassal ; therefore , all parties having interest may compear and defend , hope , de actionibus in factum , laird of lugtoun contra laird of lethendie . but there is no necessity to call any save the vassal , seing all other rights fall in consequentiam , as was found in subaltern-rights , in the said case , earl of balcleugh contra scot. though recognition be ordinarly by way of action declaring the deed upon which it is incurred ; yet a donatar of recognition being infeft thereupon , was found to have sufficient interest to pursue , succeeding in the vice , in respect of a prior decreet of removing upon the donatars infeftment upon the gift of recognition without any preceeding declarator , march . . laird of hunthil contra rutherfoord . . in declarators of recognition , the superiours gift is sufficient title without instructing the superiours right , unless he be disclaimed , or the vassals be singular successors : but the kings gift is absolutely sufficient , and there will be terms assigned for proving the alienation of the major part , and incident diligences against all havers for production of their infeftments , ad modum probationis , feb. . . william gordoun contra sir alexander mcculloch . and whereas gifts of recognitions bear , the particular deeds inferring the vacancy and return of the fee in the kings hands , because general gifts are not allowable . the extracts of seasines were sustained , in initio litis , to instruct these deeds , but warrand was granted to the defenders to improve the seasines , or warrands thereof , and thereby to call for the principals , february . . david edie contra thores and dun. and diligence by horning was granted to the defenders of the improbation , for producing the seasines and warrands , february . . john hay contra creditors of murie . and declarator was sustained upon production of the gift , though the donatar was not infeft ; and though the heir whose right was in question , was minor ; and though his authors bound in warrandice were not called : for the priviledge of the minority hath no effect as to the superiour , and the defender ought to intimat the plea to his author , january . . laird of dun contra scot. . disclamation is when the vassal denyeth his superiour to be his superiour , which is diametrically opposite to that acknowledgement , which is necessarly implyed in the matter of all fees , as there is in it the greatest ingratitude ; and therefore , disclamation , as being much more favourable upon the part of the superiour , and odious upon the part of the vassal , then recognition is not restricted to proper fees by ward-holdings , but taketh place in all fees , and that not only when the vassal disclaimeth the superiour as to the whole , or greater part ; but if he disclaim him to be superiour in any part of the fee , he looseth the whole . disclamation taketh no place if it proceed thorow ignorance of the vassal , upon any probable ground , which may several ways occur ; first , as to the whole fee , when the case is not betwixt the first superiour and the first vassal , but betwixt their successours , as if the vassal should deny a person to be his superiours heir in that superiority , through any doubtfulness of his being lawful heir , or of his being that heir , to whom the superiority is provided , as being to heirs-mail or of tailzie : but much more when the superiour is singular successor to the first superiour ; in all which there be frequent and probable grounds of doubt and mistake . secondly , the same ground of doubt may be when the question is about some part of the fee , and this much more , that there may be many grounds of doubt , whether that which is in question be a part of the fee or not , as when the fiar hath several conterminous tenements , holden of divers superiours , if he affirm any parcel not to be a part and pertinent holden of the superiour acclaiming , but of the other ; in that case the vassals not acknowledging the superiour , will not be accounted disclamation ; and therefore , though ordinarly it be held , that a superiour pursuing his vassal for any duty or casuality needs not instruct that he is superiour , or that the defender is his vassal , but that it proves it self , unless he disclaim , as was found , hope superiour , viscount of stormont contra andrew grant : yet that must be understood , when the case is clear , and when he is directly disclaimed , he may choose either to make use of the disclamation , or instruct his title and so proceed , march . . john stuart contra laird of wedderburn . the main question is , whether disclamation can be otherways then judicially ; 〈◊〉 answers the case , as to extrajudicial words , that these are not ordinarly noticed in most cases , as extrajudicial confessions , and the like , but as to extrajudicial deeds of the vassal , as if he should take infeftment from any other then his superiour , it would be as real disclamation as any verbal one judicially could be , but under the same limitation , if it were done of knowledge and of contempt of the superiour ; and therefore , in a dubious and contraverse right , or in any case , if the right were taken with provision of double infeftment , and thereby the granter not accepted simply , as superiour , but only in the interim it would not infer disclamation . . purpresture or purprysion is the vassals going without his bounds , and incroaching upon the property of his superiour ; for purpryses signifie the precincts and marches , the ground of it is from the fidelity and gratitude the vassal oweth to the superiour ; and therefore , should not invade his inheritance ; but this is not extended to incroachment upon the superiours commonty , as craig relateth the opinion of the lawers in his time , in a purprysion moved by the constable of dundee against the town of innerkeithing . but where the superiour hath the right of property , burdened and barred with a right of common pasturage , acquired by the vassal by consent or prescription , which though it marreth the effect of the superiours property , so that he cannot till or manure the same in prejudice of the pasturage ; yet he remains direct proprietar ; and if coal were found in that ground , it would be his alone : in which case , if the vassal should rive out and labour that ground whereof he got common pasturage , it would be purprysion , as is clear in the case of the common moores , disponed to none by the king in property ; and therefore , belonging yet to his majesty in property , the riving out , or appropriating whereof , is declared purprysion , parliament . cap. . purpresture must also be a known and manifest incroachment , as if a vassal should exclude a superiour from a whole distinct tenement ; but when he is about marches it is not sustained , unless they be clearly manifest by march stones ; or that there hath been an antecedent cognition of the marches ; and therefore , the action is either turned into a cognition , or at least before answer , a commission is granted to cognosce . purpresture is thought to be incurred by incroachment upon the high-ways and publick rivers , as belonging to the king ; but it could be inferred against no other then his vassal , and it being so ordinary by course of time , to change the high-ways , or rather for the high-ways to change , when there becomes any impossibleness therein : there are other statutes appointed for securing thereof upon far less certification then purpresture , so that i conceive it could hardly be inferred upon that ground . purpresture was only competent to be cognosced by barons , comprehending superiour dignities , but by none of their vassals or sub-vassals , par. . cap. . but now it belongs only to the jurisdiction of the lords of session , as all other recognitions do . . craig hath largely & learnedly treated of the feudal delinquencies : adducing the feudal customes of the neighbouring nations , and the opinions of many learned feudists thereupon , both generally and particularly , enumerating the most ordinary delinquences , for which they hold vassals to lose their fees ; he doth also give his own opinion , how far these or the like would be sustained with us , but adduceth little what had been sustained . but this much in general , that mitiores pena nobis semper placuere : and in conclusion , l. . dieges . . he makes superiours lose their superiority , and the same to befal to their vassals , for the same delinquencies , for which the vassals lose their fee , to their superiours , except what concerns the honour and reverence due by vassals to their superiours ; which therefore will not consist with attributing the feudal delinquencies to ingratitude , which can hardly be understood to give rise to the superiours losing his superiority ; and therefore , it must be from that mutual friendship and fidelity betwixt the superiour and vassal , arising from the feudal contract , since his time there hath scarce any thing been observed in relation to recognition , or ammission of infeftments upon feudal delinquencies , except what concerns alienation of proper fees , or ward-holdings , without the superiours consent , or what may concern recognition , as it is implyed in foresaulture , so that we are yet much left to infer the feudal delinquencies , resolutive of infeftments from the nature of these rights . though craig hath not gone near the length of forraign feudists , in assigning the specialities resolving fees ; yet if we should go his length , there would be found few unquarrellable rights of superiority , or property in the kingdom , but which might in a considerable time , give ground enough to extinguish the right , either of the superiour or vassal : and since no such thing hath been moved upon either part , the general acquiescence of the nation must make these delinquencies resolutive of infeftments , much narrower and much more upon the vassals part then the superiours , for our custom hath never given the vassalthe right of superiority upon the delinquencies of the superiour . all fees , yea and liferents by infeftments , do necessarly imply an acknowledgement of the superiour , and fidelity to him , and thence only , and not from gratitude ought the causes of disolving fees be deduced , for though pure donations are disolved by attrocious ingratitude , yet the most proper fees were never pure donations , but were from innominate contracts , do ut facias , and the services due thereby , were not by way of gratitude , but by way ofspecial contract : and there is most of pure donation in the most improper fees , such as blensh and mortification which are almost allodial ; and yet the fewest resolutive delinquencies are in these , and feu-ferms were at first granted for cultivating barren grounds , and paying a feu-duty , or canon out of them , and where they have a considerable rent , they are far from being purely gratuitous , and are rather perpetual locations . and in most fees of all kinds , there are not only casualities and profites ; but they are ordinarly granted by way of sale for a competent price ; and therefore , the delinquencies resolving them , should neither be extended nor esteemed equal , but should be much more sustained in proper fees , or ward-holdings , importing personal or military service , then in improper fees. yet all infeftments being in the terms and tenor of fees , they must have a reddendo and acknowledgement of the superior and fidelity too , not only as obliegements , but as resolutive conditions implyed therein ; and therefore , wilful and open disowning the superiour by disclamation , or infidelity , in breach of trust , should from the nature of the feudal contract resolve the same . . though breach of trust be a general term , the extent whereof is not determined ; yet certainly it must import the vassals being actor or accessory in conspyring or taking away the life of the superiour , or mutilating or wounding him , or in taking away his right of superiority : under which accession may be justly comprehended , the not revealing to him of these hazards ; but this would not reach to the revealing of any loss or detriment the superiour might have in his other estate , or the concurring or acting against him therein . it may also be extended to conspyring , or acting , or not revealing these things which might infer upon the superiour , infamy , equiparat to death or wounds , but it seems not to import a duty in the vassal to give council to his superiour , or not to reveal his secrets ; neither inferring life , limb , nor fame ; for though these be acts of gratitude and friendship , yet they are not implyed in the fidelity of all vassals , but only such as owe militar and personal service : i shall not determine how far breach of trust in improper fees , could extend to the wife , children , and family of the superiour . but proper and military fees by ward-holding , do not only import fidelity , but assistance and council to the superiour , by which the vassal can be accessory to no attrocious deed against the life and blood of the superiour , but against any infamy may befal him , or any great detriment in his estate , and so will reach to deeds of hurt or disgrace to his wife or children by adultery , fornication , or attrocious violence upon their persons , or attempts thereunto ; and may also extend to the revealing of the superiours secrets , or not defending him against his enemies or such as attack him , or deserting of him in that case ; and in case of a necessary flight , by overpouring , in not crying for help and relief ; and in lawful war , in not concurring with him , or deserting him , while with any probability of prevailing , he stood in fight , if the vassal were then near him , but it will not import his concourse , active in private quarrels by force of arms , which are not warrantable . . in all cases the ignorance of the vassal not being affected , or his weakness will excuse these delinquencies , and whatever he acteth in self-defence , or upon provocation of the attrocious injury of the superiour , or by publick authority , or in the service of his prince , or anterior superiour in ward-holding : or unless the attrocious deeds be past from by the superiour , by owning his vassal after the knowledge thereof , or by a considerable times forbearance to quarrel the same , especially when in the mean time , either the superiour or vassal dies ; for though death obliterats crimes as to the punishment ; yet the righ arising to the superiour in the fee , from the delinquence , as a resolutive condition is not excluded by the vassals death , if the superiour were ignorant of the fact , or not in capacity to vindicat the same through publick calamity , or his pupilarity or absence ; but by the mutual friendship and strict union betwixt superiour and vassal ; small evidences will import the passing by former delinquencies , especially when not questioned , during the life of both parties . there are multitudes of specialities proposed by craig , as delinquencies resolving fees , not only in relation to the superiour , his person and family ; but also of invading his house , befieging the same , or entering it by force , or invading his property , which is the ground of purprysion , acknowledged by our custom ; or by denying or refusing to show the superiour the marches of the fee , or denying any part of it to be holden of him , or not showing him his holding and investiture , being solemnly called to that purpose ( which take no place with us ; for our ordinary custom for superiours as well as others , is to pursue improbations of their vassals rights wherein the certifications is not the loss of the fee , but the presumptive falsity of the writes ) or the denying to do justice to superiours ; but also in relation to the fee , if he waste or deterioat it : yea , in relation to the vassals own person , as if he fall in incest , or if he kill his brother , or commit any paracide , or if he contract friendship with the enemies of his superiour : and generally , whatever may make him unfit or unworthy to attend his superiou , or to be in his court , but none of these are implyed in the fidelity of any vassal . there be special grounds of resolution or extinction of fees by the particular nature or tenor thereof , as feues become extinct , ob non solutum canonem , and other fees are extinct by resolutive clauses , as to both which we have spoken , title . § . craig doth hold , that by the delinquence of vassals , conquest , or feuda nova , become extinct and return to the superiour ; but heretage , or feuda vetera , do but become extinct as to the delinquent vassals and his descendents but is not returned to the superiour , but divolved to the next collateral of the delinquent vassal descending from the first vassal , who would have succeeded if the delinquent vassals had died without issue , and who must enter heir to the delinquent vassals predecessor ; but in this the interest of the superiour is too far restricted ; for we have no custom nor tenor to enter any person heir to a defunct , while a nearer heir is existent , whatsoever his delinquence be , except paricide . he doth also move this question , that if the vassal have committed a feudal delict against the superiour , and a publick crime inferring forefaulture , whether the fee would fall to the king , or to the superiour , or if the first sentence of forefaulture or recognition would prevail : but does not determine it . yet the first deliquences , sufficient to extinguish the fee , if insisted in , must give the preference ; for the sentence of forfaulture or recognition is but declaratory , and hath effect , not from the sentence , but from the deed inferring it . there is no difference , whether the delinquence inferring recognition , was before the vassal was actually entered or after ; but it is more questionable , whether recognition would be incurred by the deeds of the appearand heir in his predecessors life ; which could have no effect as to collaterals , who are not alioqui successuri , seing they may be excluded by a descendent , which in men is alwayes in hope : and if the heir apparent die before his predecessor , it can have no effect to exclude either his collaterals or descendents ; and it is more probable , that though the heir apparent should survive , he would not be excluded , seing feudal delinquences are now so little extended . . it hath been much and long debated , and is not yet decided , whether recognition can be incurred for ay attrocious deeds dne by sub-vassals , whereby the superiour might claim the right of the sub-vassals . fee to fall to him by recognition ; or , whether recognition can only be incurred by the deeds of the immediat vassal . the case in question was , where a sub-vassal rose in rebellion against the king , whereby his fee , as all his other rights , were confiscate to the king by forefaulture , which could but confiscate them as they were in his person , with the burden of all real rights of liferent , annualrent , or other subaltern infeftments of the forefaulted person : but if the forefaulture of the sub-vassal did also comprehend recognition , the sub-vassals fee would fall to the king and belong to his donatar , without any real right or burden contracted by the forefaulted person , except such as were confirmed by the king , either by a special confirmation , or by that general consent of the king , inviting all his subject to set their ward-lands feu , by the act of parliament , . cap. . which would preserve such feus , being constitute before the act of par. . rescinding that act as to the vassals of the king and prince , as was found , feb. . . marquess of huntley contra gordoun of cairnburrow ; november . . campbel of silvercraigs contra laird of auchinbreck and the earl of argyle . and therefore , if recognition were implyed in forefaulture , in that case it behoved to infer a general rule , that recognition might be incurred by all attrocious deeds against gratitude and fidelity , omitted not only by the immediat vassal , but by all subaltern vassals , and would not only be competent to the king , upon deeds of treason committed against him by his sub-vassals , but by all deeds of attrocity done against another superiour by his sub-vassals ; as if his sub-vassal should kill , wound or betray his superiour . so that the question behoved to return , whether there were any feudal contract or obligation of fidelity betwixt the superiour and his sub-vassals ; for if that were , then vassals might fall in recognition by such deeds , not only against their immediat superiours , but against all their mediat superiours , though never so many . for , though the case in question be most odious and unfavourable , being rebellion ; yet it hath its proper punishment introduced by law and statute , whereby the rebel loseth life , land and goods to the king , to whom all his subjects owes fidelity , as subjects , though all do not owe the feudal fidelity as vassals ; yet , if recognition take place as to the king , it must likewise fall to all other superiours , whatever way the land be held , ward , feu , blensh or mortification , if they have not a confirmation or consent of the superiour , anterior to the deeds inferring recognition . we shall not therefore anticipat the publick determination of the question ; if custom hath determined it , what will take place ? for all feudal rights are local , but there hath not yet appeared any case , by which a donatar by his gift and presentation , being infeft in the fee of the kings sub-vassal , forefault has excluded these who had real rights from the forefaulted person before the treasonable fact , though much hath been disputed upon the act of par. . cap. . concerning the quinquennial possession of forfaulted persons , especially from the last clause thereof , bearing , that no person presented by the king to feu lands forefaulted , nor any vassal of any feuer forefaulted , shall be compelled to produce their acquittances of their feu-mail , or annualrents of their forefaulted lands of any year preceeding the forefaulture ; which doth clearly acknowledge , that when the feuers right is forefaulted , his sub-vassals right is not forefauted , yet it was alledged , that would not end the controversie by the act . par. . because these rights of the sub-vassals of the forefaulted feuer , might have been confirmed by the king , specially or generally by the foresaid act , . but the general confirmation from that act can have no effect , because the the sub-vassals whose rights are preserved by the act , are not feues granted by ward-holders , but are subaltern infeftments granted by forefaulted feuers . and without question , the king hath given no consent to any to grant feues , but to ward-holders only ; for , though the law hinders them to grant sub-feues or annualrents , yet there being no consent or confirmation by the king thereto . therefore , if the king his immediat vassal be forefaulted , all the ancient feues granted by him of the lands holden ward , will stand valid , as being consented to by the king by the foresaid statute : but the feues granted by him of lands holden blensh or feu , will fall in consequence with his own feu or blensh , and cannot defend against forefaulture , more then annualrents or lucrative tacks granted by him , which law doth allow , and yet fall with his right , unless consented to , or confirmed by the superiour . title xxii . prescription . . prescription distinguished and described . . usucapion . . the several times required to usucapion or prescription , by the roman law. . requisites to prescription . . bona fides requisite to prescription . . whether he who doubteth of his authors right , be in bona , or mala fide . . evidences of mala fides . . the title requisite to prescription . . the motives inductive of prescription . . exception , where prescription took no place by the civil law. . the common rule of prescription with us . . the beginning of prescription of personal rights , with the extensions thereof . . prescription of moveables . . prescription is reckoned de momento in momentum per tempus continuum . . prescription of heretable rights . . prescription is not extended against the right of superiority . . prescription runs not for tennents against their masters . . prescription runs not against minors , but there is no exceptions of mortifications to pious uses . . in our long prescription bona fides is not required . . the titles requisite in prescriptions of heretable rights . . this long prescription secures wodsets , infeftments for security , teinds and long tacks . . how far teinds can prescribe . . this prescription extends to patronage and offices . . and to thirleage and all servitudes . . this prescription excludes all action and ground of reduction and declarator if the essentials of the title appear . . the several wayes of interruption of prescription . . the way of interruption by king charles the first , as to special rights of the crown by letters of publication . . the annual prescription of the priviledge of appearand heirs intra annum deliberandi . . the biennial prescription of the preference of diligences of the creditors of defuncts , to the diligences of the creditors of the heir . . triennial prescription of spuilzie , ejection , intrusion and succeeding in the vice , merchants-counts , house-mails and removings . . quadrennial prescription of the priviledge to reduce deeds of minors intra quadrennium utile . . quinquennial prescription of arrestments , ministers stipends , multures , rents of tennents removed , and legal reversion of special adjudications . . septennial prescription of old apprisings and summonds for interruption . . decennial prescription of late apprisings or general adjudications . . prescription of twenty years of holograph bonds , missives , and subscriptions in count-books , without witnesses . . no prescription runs in minority , except removings , house-mails , and merchants-counts . . prescription is the common extinction and abolishing of all rights , and therefore is reserved here to the last place ; the name and nature whereof we have from the civil law , wherein prescription is sometimes largely taken for any exception , but hath been appropriat to the most common exception in all cases , whereby all actions and causes are excluded by course of time ; and so prescription had no further effect , then to maintain the possessor in possession by exception , but not to recover possession , being lost , and could not constitute the right of property . . in this , prescription did chiefly differ from usucapion by the ancient roman law , that usucapion did constitute property , and therefore is defined by modestinus , l. . ff . de usucapione ; adjectio vel acquisitio dominii per continuationem possessionis temporis lege definiti . to which , description the name doth agree ; for , usu-capere est capere ex usu aut possessione , to take or acquire by use or possession ; but every possession was not sufficient , unless it were a possession as proprietar , or for the possessors own use only : so detention of any thing in the name , and for the use of another , and for the possessor only in security , as a pledge or wodset , cannot constitute property . . as to the time appointed for usucapion , moveables were acquired by continual possession for one year , l. . ff . de usucapion . inst. eod in principio . and immoveables being in italy by the space of two years : other immoveables by the space of ten years , against these in the same province ; and twenty years against these out of the same province , auth . mala fidei , c. de prescript . longi temporis . from which common rule , some cases of greatest moment were excepted ; as first , publick rights belonging to emperors and kings , which ( as all do agree , ) cannot be acquired by usucapion or prescription in less then thirty or fourty years , and many think by no less then an hundred years , or immemorial possession . secondly , things belonging to cities , which in some cases could not be prescrived without an hundred years possession , at least without thirty or fourty years . thirdly , things belonging to the church , against which no other can acquire by prescription in less then fourty years ; and against the church of rome by special priviledge , by the space of an hundred years only . the recent roman law hath taken off all differences betwixt usucapion and prescription , tit. de usucap . trans . whereby in either case property is acquired : yet in the ordinary acceptation , prescription which is short in moveables , is commonly called usucapion ; but we make only use of the name of prescription for both . . prescription or usucapion amongst the romans , required three things , continuation of possession uninterrupted , bona fides , and a title , besides the kind of possession , and time before-mentioned , as to the first , prescription is unquestionably interrupted by real interruption or discontinuation of possession ; it is also interrupted by civil possession by litiscontestation , process , &c. . as to the bona fides , or innocent possession required in prescription , it is commonly agreed , that it is requisite at the beginning of the possession in shorter prescriptions , but that it is presumed in the longest prescription . the civil and canon law differ in this , that the civil law requireth only bonam fidem at the beginning , so that if any person acquire any thing from him whom he believeth to be the owner thereof ; and so believing beginneth to possess , though thereafter he understand that his author was not the true owner , yet prescription doth proceed : but by the canon law it proceeds not : but if at any time before prescription ended , he knoweth the thing belonged to another , prescription is impeded : yea , though prescription were ended , if the right of another appear . most of the canonists hold , that in foro conscientiae , the possessor is oblieged to restore , unless the knowledge and forbearance of the owner , do infer or presume a dereliction of the thing or consent , which takes no place in the case of ignorance , or error of the owner . . in either case it is contraverted , whether he who doubteth of his or his authors right be bonae fidei , or malae fidei possessor . the common ground in which all agree , is that the possessors credulity and belief of his own and his authors right makes bonam fidem , and his knowledge of the right of another malam , which seemeth to infer , that he who doubteth , must be in mala fide , because he believeth not his authour to have had right , doubt and belief being contraries : and upon the other part , he who only doubteth , cannot be said to know the right of another . the most rational conciliation is by this distinction , that doubting being like the dubious ballance , when it enclineth more to the belief of the possessors , and authors right , then of the right of the other . the denomination and effect is taken from the stronger , and he is said to believe his own right , and can no ways be said to believe the right of another , whose doubtful opinion doth rather incline to his own right then the others ; and contrariwise , when his opinion enclineth more to believe the authours right then his own . . these things being hidden acts of the minde , it is very difficult to know who is in bona fide or mala fide ; but bona fides is presumed , unless a contrary probation , or vehiment presumption be for mala fides , of which menochius , lib. . de arbitrar . jud. quast . cas . . relateth many , whereof these are chief ; first , he who possesseth without a title is ever presumed malae fidei possessessor . secondly , common fame in the neighbourhood , that the thing acquired belongs to another . thirdly , if it be intimate or declared to the acquirer , before he acquired that it was anothers . fourthly , the extrajudicial confession of the acquirer , or of witnesses that the thing belonged to another . fifthly , if the acquisition be not with observation of the ordinary solemnities . sixthly , if the acquisition be from a procurator , and the acquirer did not see his warrand , albeit he had one . seventhly , if the acquisition be from a prodigal person . eighthly , if the acquirer take unaccustomed wayes of security . and last , by whatsoever the acquirer is oblieged to know by law , scire & scire debere aequiparantur in jure . . as to the title requisite in prescription , thereby is not meaned a sufficient valide title , which needed not the help of prescription , but a colourable title is sufficient , as that which is acquired by emption ; the emption is title enough for prescription , though the seller had no right , or that which descendeth from any other by succession , legacy , donation , &c. and generally , whatsoever way property useth to pass , is sufficient for prescription , though it be not sufficient alone to constitute the property , to which there is requisite the authors right , and the transmission thereof ; but to prescription , the manner of transmission is enough for bona fides , and continuation of possession supplieth the rest . . prescription although it be by positive law , founded upon utility more then upon equity , the introduction whereof , the romans ascribed to to themselves , yet hath it been since received by most nations ; but not so as to be counted amongst the laws of nations , because it is not the same , but different in diverse nations , as to the matter , manner and time of it ; and therefore , nations under no common authority , do not prescrive properly against each other , albeit by long patience and no contradiction , their consent may be inferred , even by the law of nations . the grounds and reasons of prescription , are first , publick utility , ne dominia rerum sint incerta , neve lites sint perpetuae : and also because the law accounteth it as a dereliction of the owners right , if he own it not , neither pursue it within such a time . in the civil law though prescription reacheth all kinds of things , moveable and immoveable , yet with these exceptions . . first , these things that are not in commerce , as they are not capable of express alienation , so neither of preseription . secondly , things stollen , whereunto for utilities sake to repress that frequent vice , the law hath stated an inherent and real vitiosity , that passeth with the thing stollen to all singular successors ; and therefore , though such things be acquired by a just title , though for a cause onerous , and an equivalent price , and by continuation of possession bona fide ; yet prescription taketh no effect because of the inherent vitiosity . the like is to be understood of rapine or violent possession : yet the fruits and profites of such things belong to the bonae fidei possessor , rather by that right that followeth possession , bonae fidei : ( of which formerly in the title , real rights , ) then by prescription . thirdly , it runneth not against pupils by the civil law , though some think that it is not to be understood of their moveables ; yet it runneth against other minors , but they may be restored if they pursue for restitution , in the time and manner prescribed in law. . to come now closs to our law concerning prescription , our common rule of prescription is by the course of fourty years , both in moveables and immoveables , obligations , actions , acts , decreets , and generally all rights as well against these absent as present , we have not these differences , which we have shown were in the civil law ; and because our prescription is so long , there is little question with us , de bona fide . but there must be continual possession free from interruption , and in lands and other fees a title , of which hereafter . . by our ancient custom , there was no place for prescription in any case which hath been corrected by our statutes , both as to long and short prescription . first , as to personal rights , in par. . cap. . & par . . c. . it is statute , that as to all obligations that should be pursued thereafter , and that were not then depending in law , before the making of that act ; that if the creditor did not follow or pursue the obligation within the space of fourty years , and take document thereupon , the same shall be prescrived and of no avail : which statute , though it mention only obligations , ( that is to say , simple obligations ) was also extended to others , as contracts of marriage , whereupon no marriage followed , as may be inferred , argumenta a contrario , from the decision , february . . sir george hamiltoun contra lord sinclar : and afterward it hath been ordinarly extended even to contracts of marriage , wherepon marriage followed , november . . lauder contra colmiln . december . . ogilbie contra lord ogilbie . it was also extended to testaments , june . . lundie contra laird of balgoum . and was also extended to pursuites , for tutor counts , hope , prescription , it was also extended to all decreets , though in foro contradictorio , and this ordained to stand as a constant practick , july . . laird of lawers contra dumbar . . prescription of fourty yeays was found sufficient to constitute the right to a bell in a kirk-steeple against another kirk , pursuing therefore , without instructing a title whereby they had the bell , which is not necessary to be instructed , but is presumed from possession in moveables , december . . minister and session of aberchirdo contra parochioners and kirk of chanrie . . prescription being odious , the fourty years are accounted , de momento in momentum : so that it is not the running , but the compleating of the fourty years that makes prescription ; and therefore , a write blank in the moneth and day , expressing the year was reckoned from the last of december that year ; and because there was three quarters wanting of fourty years before insisting upon the pursuite , thereupon it was sustained , as not prescribed , sep. . . ogilbie contra lord ogilbie . but in regard of the length of this prescription , it is accounted ex tempore continuo , & non utili , and so no abatement for the time of troubles , or surcease of justice , even in the case of mortification to bead-men , june . . bead-men of magdalen chapel contra gavin drysdale . after this statute there was no prescription of heretable and real rights ; and therefore , not of a decreet of poinding the ground , hope prescription , sir george currier contra laird of louristoun . only it was declared that no person shold be compelled to produce procuratories or instruments of resignation , precepts of clare constat , or other precepts of seasine of lands or annualrents , whereof the heretors and their authors , or liferenters , having liferents reserved in their infeftments , were in possession fourty years together , their charters making mention of the precepts , the wanting whereof shall make no reduction , the charters and seasine being extant , par. . cap. . . but prescription of fourty years is introduced of all heretable and other rights , par. . cap. . where the heretors their predecessors and authors , possessed lands , annualrent or other heritage by themselves , their tennents or others having their rights ( as by liferenters ) for the space of fourty years together , following the dates of their infeftments without lawful interruption , that such shall not be troubled , pursued , or unquieted by hismajesty and other superiours & authors , their heirs and successors , uponany ground whatsomever except upon falshood , providing such heretors shew a charter to them or their authors , preceeding the saids fourty years possession , with the instrument of seasine following thereupon : or otherways , instruments of seasine one or moe , continued and standing together for the said space of fourty years , either proceeding upon retours , or precepts of clare constat ; where , by standing together , it is not meaned unreduced , but that either the vassal lived and brooked by one seasine fourty years : or if he died , that the seasine was renewed to his heirs ; and so continued not only the possession , but the seasine fourty years : in which the continuation of seasines cannot be reckoned , de diein diem ; because there must necessarly be an interval betwixt the death of the person first ceased , and the service of the heir to whom the law gives annum deliberandi , to consider whether the heretage will be beneficial or hurtful , and accordingly whether he will enter or not , february . . earl of argile contra lord of mcnaughtoun . and also all actions upon heretable bonds , reversions , contracts , or others whatsomever , except reversions incorporat within the body of infeftments , used by the heretors for their title , or registrat in the register of reversions : which general clause was found to extend to actions of reduction of retours , though if no other heir had been retoured , the right of blood prescrives not , but any person may enter heir to his predecessor who died hundreds of years before ; yet if any other were entered , he cannot after fourty years quarrel or reduce the same by the general act of prescription , though the retour was anterior to the special act of prescription of retours , par. . cap. . whereby retours thereafter are irreducible if not quarrelled within twenty years , november . . younger contra johnstouns . in the former statute it is declared , that actions of warrandice shall not prescrive from the date of the bond , or infeftment whereupon warrandice is sought , but only from the date of the distress . . but this prescription is not to be extended against superiours , upon their vassals possession fourty years , though no feu , blensh , or other duty or casuality be demanded by the superiour , because the vassals right acknowledgeth the superiours right , and his possession is also the superiours possession : yet all duties and casualities thereupon , not pursued within fourty years , prescrive without prejudice to these due within fourty years of the pursuit , december . . sir william stuart of gairntullie contra commissar of st. andrews . . which holdeth in tack-duties , which prescrive as to the years preceeding fourty , before the pursute , but no other , march . . betwixt two glasgow men , spots : prescription , stuart contra fleeming . yet prescription by possessing fourty years , as part and pertinent by an infeftment was not elided ; because , before these fourty years the possessors author had a tack of the lands in question february , . . countess of murray contra mr. robert weyms , though in this case the land in question was separatum tenementum , by a distinct infeftment , but became part and pertinent by being so brooked fourty years . by this statute , prescription of heretable rights , doth not only exclude other infeftments in property , but also annualrents , pensions , and all other rights ; and so an heretor possessing fourty years , was found free thereof , july . . margaret forrester contra possessors of bothkennel , where the office of forrester and fees thereof were found prescrived . . from this prescription there are excepted the rights of pupils and minors , against whom the prescription runs , not during their minority , so that they need not seek restitution , in integrum , as in the civil law ; which exception is particularly exprest in the foresaid statute , and is extended to all other prescriptions of personal rights or others , spots . prescription , duke of lennox contra the executors of alexander beatoun . but there is no exception of rights mortified to pioususes , as bead-men , june . . bead-men of magdillan-chapel contra gavin drysdale . . in neither of the statutes , introducing long prescription by fourty years , is there any mention or provision , concerning the manner of the entry in possession , whether it was bona fide peaceable or lawful , but only that it have a title , and be continued without interruption . . the title in heretable rights , being ground-rights of lands or annualrents , is very well distinguished , by the last statute , betwixt conquest and heretage ; for , heretage which hath descended by succession , from a predecessor , is content with a more slender title , viz. seasines without the warrands or adminicles , but only bearing , that they proceed upon retoures or precepts of clare constat , providing that the possession hath been by vertue of these seasines : so that not only there must be possession for fourty years together , but seasines consecutive , proper to the several possessors during that time : but purchasers must not only have for their title , a seasine preceeding the fourty years prescription , but if they found upon their proper right , they must also produce a charter preceeding the fourty years . and therefore , though a purchaser should possess fourty years , and show his seasine anterior thereto ; yet would it not be a title for prescription , unless he produce a charter before that time , where , by charter , must not be understood a solemn charter as it is distinguished from a disposition or precept , but as it comprehends these ; for many valid infeftments have no charter , but seasine proceeds upon the precept of seasine contained in the disposition . and though a precept of seasine were only shown as the warrand of the seasine , the same with fourty years possession by vertue thereof , would perfect prescription : for the seasines of themselves , without warrand or adminicle , are but the assertions of nottars , and not probative ; yet they are sufficiently probative , not only by the immediat warrand or precept whereupon they proceed , but upon the mediat warrand ; as if a seasine be produced with a bond or obliegement , to grant an infeftment conform to that seasine , vide tit. . § . but purchasers may well conjoin their own title and their authors ; so that if he can show in his authors persons , consecutive seasines for fourty years , upon retoures or precepts of clare constat , and possession conform , it will be sufficient : or if they cannot show such seasines and possession in their authors for the whole fourty years ; yet , if they show the accomplishment of fourty years by their own seasines and warrands thereof , and possession conform , these may compleat the prescription . . this statute doth not only secure rights , and lands , and annualrents , by fourty years peaceable possession cum titulo , but also other heretable rights , such as wodsets ; for , registrat or incorporat reversions being exprest as exceptions , wodsets must be comprehended in the rule , and all infeftments for security or relief , which do imply a reversion incorporat . it will also extend to infeftments of teinds ; for , though teinds be separatum tenementum from the stock , yet both are ground-rights or infeftments of the land ; yea , infeftments of life-rent , if possessed and unquarrelled for fourty years , showing their seasine and the warrand or adminicle thereof , the same would make the liferent-right irreducible , or might perfect prescription , being joined to their authors rights ; yea , this statute hath been extended to long tacks of lands , teinds or others . . a right to teinds may be prescribed , as well as other rights , by fourty years possession ; but a right to by-gone teinds , being founded in publick law , prescribes not , except as to the by-gones before fourty years ; and the possessor cannot prescribe an absolute immunity and freedom from payment within the fourty years , and in time coming , seing all lands in scotland by law are lyable in teind , but such as never payed any being cum decimis inclusis , or belonging to the cystertian order , templers and hospitallers , or gleibs , february . . earl of panmure contra parochioners of . this statute is also extended unto rights of patronage , or offices which are heretable rights , though they be not alwayes constitute or continued by infeftment ; yet fourty years possession by the original right in the first acquirer , or by the continuation in their successors , does establish their rights against all quarrelling by reduction or declarator . yea , this statue is extended to long tacks , which ( if cled with fourty years peaceable possession , either in the tacksman or his assigneys , or their heirs who need no service ) cannot be quarrelled , but stand valid , not only for these fourty years , but for all subsequent years unexpired : as was found in a tack of teinds , though set without consent of the patron , and the bolls liquidate to ten shilling , july . . the parson of prestounhaugh contra his parochioners . . it is also extended to thirlage and multures , with any antecedent adminicle ; as by inrollment of court , and generally to all servitudes , though there be no more antecedent title , but part and pertinent of the dominant tenement , either exprest or implyed ; as was found in the case of a pasturage and sheilling , albeit there was produced an old tack , bearing , to be granted to the possessor or his predecessor , november . . graunt of ballindalloch , contra graunt of balvey . whereupon it was alledged , that a tennent possessing by tack from his master , could not prescrive against him , which was not respected in this case , nor in that of the countess of murray , contra mr. robert weyms , feb. . . the like june . . colledge of aberdeen contra earl of northesk . but all annual prestations preceeding fourty years prescrive , though constantly payed for thirty nine years , every year being a several obliegement , though in one write , and prescrives severally , january . . earl of athol contra laird of strowan . it holds also in annualrents , july . . and feb. . . blair of balleid contra blair of denhead . but it cannot be extended to prescrive against a superiour , for not payment of the reddendo , because a right of property cannot consist without superiority , unless there be a right taken from another superiour . . prescription doth not only exclude the preference of other better rights , which if insisted upon within prescription , would have been preferred as anterior , and thereby the posterior right a non habente potestatem . but all ground of reduction by the king , or other superiours or authors , is excluded ; so that the neglect of the kings officers cannot be obtruded by the act of parliament , declaring that their neglects shall not prejudge the king , neither any nullity in the titles of prescription , except it be in the essentials thereof : so , prescription cannot sustain a perpetual tack without ish , which is essential thereto ; nor a seasine without a symbol , generally or particularly , or not given upon the ground of the land. but all requisites in rights introduced by custom or statute , and not essential thereto , are cut off by prescription . . the main exception or reply against prescription , is interruption , not only by the discontinuing the possession of the whole , but also of a part , which was found sufficient to interrupt the prescription as to the whole ; as an infeftment of thirlage and possssion of corns growing upon the lands , was found sufficient to exclude the prescription of the multures of invecta & illata , june . . laird of 〈◊〉 contra home of foord . so likewayes , payment of annualrents within fourty years , interrupts prescription of bonds , and that not only as to the party paying , but payment made by the principal debitor was found to interrupt prescription as to the cautioner , who never payed , nor was pursued during the space of fourty years , december . . sir thomas nicolson of carnock contra laird of philorth ; december . . gairns contra arthur . and an annualrent constitute out of two tenements , was found unprescrived as to both , by uplifting the annualrent out of either , though that the one was now fourty years in the hands of a fingular successor , june . . lord balmirrano contra hamiltoun of little-prestoun . prescription is ordinarly interrupted and excluded , by the dependence of any action , whereupon the right might have been taken away or impeded , hope , patronage laird of glenurchie contra alexander campbel ; idem , tacks and tennents , carnousie contra keith , even though there was only the first summons without continuation , or second summons , february . . james butter contra gray ; yea , though the pursuer past from the summons pro loco & tempore , hope , removing , sir robert douglas contra lord herreis ; or by a transferrence , though reducible , because not proceeding upon the right title , seing the right title was also in the pursuers person , july . . laird of lawers contra dumbar . the like though the pursute might have been excluded for want of solemnity in re antiqua , where the custom was not clear , november . . white contra horn. yea , an annualrent was found interrupted by a poinding of the ground , though therein the heretor was not called , june . . sir robert sinclair contra laird of howstoun . prescription was also found validly interrupted , by a charge of horning upon the bond in question , albeit proceeding only upon summar registration by the clause in the bond , and by no citation , july . . david moris contra johnstoun . but warning , whereupon nothing followed , was not found a sufficient interruption of an old tack-duty , hope , possession , mr. robert bruce contra captain andrew bruce ; idem , march contra keir . neither was it found sufficient , to interrupt prescription in the first part of a mutual contract , that action was used upon the second , which saved the second from prescription , seing the party concerned in the first , neither used action or charge thereupon , nor founded exception upon it , when pursued by the oaher party , november . . lauder contra colmill . interruption was also sustained upon a citation , at the instance of a party not then entered heir , being entered thereafter within the years of prescription . the like upon a summons of reduction upon minority , though it was not filled up within the fourty years , being insinuat in the title of the summons , that minors have interest to reduce deeds to their lesion , july . . earl marishal contra leith of whitehaugh . but interruption was not sustained from the citation in a summons of reduction ex capite inhibitionis , but from filling up of the reason , february . . kennuay contra crawford . and it was sustained upon citation upon the second summons , being only a day before the year was compleat , albeit the first summons should be found null , and though the citation was at the mercat-cross upon a priviledged warrand , purchased upon pretence that non fuit tutus accessus , past of course among the common bills , and the reason of the priviledge was neither true nor instructed , and though the execution bore not a copy left at the cross , the party adding that , and abiding thereby , as truly done , be the executor of the summons , july . john mackbra contra lord mcdonald . interruption was also sustained upon a citation in a reduction in anno . 〈◊〉 the execution bore not the name of the pursuer or defender , but the parties within mentioned : and were not written upon the back of the summonds , but upon a louse shedul ; and the citation was in the last of the thirteen years excepted from prescription , against a party of great quality , against whom , many interruptions were like then to have been used : the user of the interruption deponing that he received the same from his father , or amongst his evidents , and knew not that they were the executions of other summonds , feb. . . laird of rewallan contra lawson , of cairnmuire . but interruption was not sustained upon summar registration , without citation or charge , january . . james johnstoun contra lord balheaven . and interruption by warning and citation thereupon , was not found effectual in a competition betwixt two parties , both being then in acquirenda possessione , by prescription , and neither having a sufficient right constitute before , unless the party warned and cited , had discontinued his pessession for a year at least , january . brown of hunthil contra town of kilcudbright . prescription as to the king , was found sufficiently interrupted by the kings letters , published at the cross of the head burgh of the shire , where the lands in question lye , without citation or charge , march . . earl of monteith contra . there was an act of sederunt , of the penult of march . upon a letter from the king to the lords of session , bearing , that in respect by the act of prescription , . all heretable rights cled with fourty years possession , are declared irreducible , unless they had been quarrelled within the space of fourty years 〈◊〉 that act ; and libertie granted to intent actions within he space of thirteen years after the date of the said act , to interrupt prescriptions , albeit there had been no interruption sor fourtie years before the said act ; and his majestie resolving to use interruption within the space of thirteen years , of deeds done to the prejudice of the crown , for preservation of his majesties right , and actions competent to him and his successors , for that effect , seing a multitude that may be concerned therein , cannot commodiouslie be summoned personallie . or at their dwelling-places , within the saids thirteen years , which were to expire in june . and it being necessar that some solemn act should be done , to testifie ; the kings will and resolution , to prosecute actions , in his own time , which could not be more properly and conveniently done , nor by inserting and publishing as follows , therefore his majesty appointed his declaration for prosecuting his rights , to be insert in the books of sederunt , and letters of publication thereupon directed , to be published at the mercat cross of edinburgh , and other places needful : and desired the lords to declare the 〈◊〉 , to have the force of a legal and lawful interruption , which the lords enacted to be done accordingly , as to the particulars therein-contained ; and 〈◊〉 letters of publication at the mercat cross of edinburgh . and other mercat crosses of the kingdom , where the lands and baronies lye , or where the persons interressed therein reside , and at the said mercat cross of edinburgh and peer of leith , for these without the kingdom : which act of sederunt was ratified , par. . cap. . which letter and acts. extend to his majesties annexed and non-annexed property , whereof the ferms , duties , and feu-ferms were counted for in exchequer , since the moneth of august , . and to the principality and to the erection of benefice , spirituality or temporality , patronage of kirks pertaining to his majesty and his predecessours ; regalities and heretable offices , any of the saids particulars being unlawfully disponed against the laws and acts of parliament ; and likewise against changing of ward in blensh or taxt-ward , granted by the king or his predecessors in their minority , and not ratified by any king or prince in their minority ; and but prejudice to any person of their lawful defences in actions to be intented by his majesty thereupon . in prescription this is a general exception , contra non valentem agere non currit praescriptio ; and therefore , bonds prescrive not from their dates , but from the term of payment , february . . james butter contra gray . june . . david bruce contra james bruce . and inhibition prescrives from the date of the last execution , and not from the registration , february . . lutefoot contra prestoun . so an obliegement by a cautioner in a contract of marriage , oblieging to impoly a sum for the wifes use , found only to run from her husbands death , july . . mckie contra stuart . and likewise prescription was not found to run against a party to take away his infeftment , seing he had given a liferent-right , which would have excluded him from any action that could have attained possession , and that he was not oblieged to use declarator or reduction in this case more then in the prescription of bonds from their dates , february . earl of lauderdail contra viscount of oxinfoord . the like , january . . young contra thomson . february . . brown of colstoun contra hepburn of bear-foord . yea , prescription was found not to run against a party forefault , and sequestrat by the usurpers , who possest his right in question for eight years , which years therefore were deduced , january . . duke of lauderdail contra earl of tweedale . but where a party was not forefault , but durst not appear during the usurpation , he was not found , non valens agere , seing he might pursue by a procurator or assigney , july . . collonel whitefoord contra earl of kilmarnock . yea. prescription was not extended to the liferent of a wife , in a sum payable to her and her husband , the longest liver , though the stock was prescrived against the husband , who neither insisted nor got annual for fourty years , but not against the wifes interest in the annualrent , though the sum bore no annualrent , yet the wife was found to have right to uplist the sum , and to re-imploy it for her liferent use , july . . janet gaw contra earl of weims . our statutes have introduced several short prescriptions , as the rights to which they relate do require , which we shall shortly represent , not according to the time they were introduced , but according to the time of their endurance , most of them occurring to be considered in their proper places , with the rights whereto they relate . . and first , our law hath introduced the annus deliberandi , in favours of heirs , because if once they enter or immix themselves in their predecessors heretage , they become lyable for their whole debts , though far exceeding the worth of their heretage ; and therefore , the heir appearand hath a year to deliberate whether the heretage will be profitable , during which , he may not only enquire , but may pursue actions of exhibition , ad deliberandum , and if they forbear they are free of all actions against them or the heretage during that year ; and therefore , that priviledge prescrives in a year and day , after the defuncts death . . secondly , by the act of par. . cap. . there is a preference granted to the creditors of defuncts preferring them to the creditors of the heir or appearand heir ; so that all diligences by the creditors of defuncts , against the defuncts estate , shall be preferred to the diligences , for debts contracted by appearand heirs , providing the saids diligences of the defuncts creditors , be compleat within three years , after the defuncts death ; albeit the being compleat be not exprest in the statute : yet by the design thereof , it must be so understood ; for if diligences inchoat in these three years , though prefected thereafter would be sufficient , the preference would not be for three years , but might come to be for thirty years . compleat diligences are appryzings , or adjudicrtions with infeftment , or a charge against the superiour to infeft , poinding , and decreets for making arrested sums or goods forth-coming : and by the said statute , dispositions by heirs or appearand heris of the defuncts eltates , are declared not to be valid against the predecessours creditors , unless made a full year after the defuncts death , so that after that year the heirs dispositions are not limited , though they should prefer their own creditors to the defuncts ; and therefore , the defuncts creditors had need to use inhibition , or inchoat their diligence by charge to enter heir , which may be within the year of deliberation , they may also then arrest , though they cannot insist in pursuits upon any of these or other grounds , till the year pass : for this act doth not prefer the diligences of the creditors of the defunct to the voluntary dispositions granted by the heir to their own creditors , but only to the legal diligence of their own creditors ; therefore , this preference of the defuncts creditors prescrives in three years , or rather in two years , because within the year of deliberation they cannot pursue , unless the heir enter or immix ; and therefore , this priviledge prescrives in two years after the year of deliberation . . thirdly , there is a triennial prescription of spuilzies , ejections , intrusions , which comprehends succeeding in the vice of parties removed , par . . cap. . this prescription by the statute , runs not against minors . this prescription doth not take away the right , but only the priviledges thereof , as proceeding upon a short citation , and the oath in litem , allowed to the party injured , to declare his loss , and the violent profites ; but hinders not the restitution , or recovery of the thing , with the ordinary profites . there is also a triennial prescription of merchant counts , house mails , and the like , which is only as to the manner of probation , that if these be not pursued within three years from the time they are due , witnesles shall not be admitted to prove the same , but only write or oath of party : but in this prescription , minority is not excepted , par . . cap. . which is not extended to rents of lands in the countrey , january . . gavin ross contra fleming . in both these prescriptions ( if actions be intented within the prescription of three years ) custom hath not limited these actions to three years , but they continue for fourty years , which might have much more conveniently been cut of by three years , for thereby the action which is accessory was more priviledged then the principal right to which it is accessory , which is amended in part by posterior statutes . there is another triennial prescription in removings , that if they be not pursued within three years , there can never be purfuite thereafter upon the same warning , where in minority is not excepted , par . . cap. . this prescription was not reckoned from the date of the warning , as being uncertain , but from the term to which the warning was made , february . . lady borthwick contra scot. . there is a quadriennial prescription in favours of minors , to reduce deeds done by them in their minority to their enorm lesion , from their age of twenty one compleat , to their age of twenty five conpleat ; but these actions being intented within that quadriennium utile did last for fourty years , till the late act of parliament anent prescription and interruption . . there are several quinquennial prescriptions ; as first , all arrestments upon decreets , prescrive five years after the dates thereof ; and arrestments upon dependences , prescrive in five years after sentence , upon the dependence , if the saids arrestments , be not pursued or insisted upon , during that time . by this statute ministers stipends and multures not pursued for within five years after they are due ; and likeways , mails and duties of tennents , not being pursued within five years after the tennents removal prescrive , unless the said stipend , multures , mails and duties , be proven resting by oath , or special write , acknowledging what is resting ; and that all bargains concerning moveables or sums of money , probable by witnesses , shall only be probable by write or oath of party , if the samine be not pursued within five years after the making of the bargain . there is also a quinquennial prescription of the legal reversions of special adjudications whereby lands are adjudged only equivalent to the sums , by the act of parliament , september . : cap. . . there was a seven years prescription of the legal reversions of apprizings ; and there is septennial prescription of interruptions , which if they be not renewed every seven years , prescrive by the act of parliament , december . . cap. . . there is likewise a decennial prescription by the said act of parliament , . cap. . of all actions upon warnings , spuilzies , ejections , arrestments , or for ministers stipend , multures , rents of removed tennents , which actions prescrive in ten years , if they be not renued every five years , but prejudice of any shorter prescription of the saids acts by former acts of parliament , which gives ground to alter the former custom anent the triennial prescription , that the actions intented thereupon may prescrive in three years . . and by the same statute , there is introduced a prescription of twenty years of holograph bonds , and holograph missives ; and subscriptions in compt books without witnesses , unless the verity of the said subscriptions be proven by the defenders oath ; by which manner of probation there is action competent , till the long prescription of fourty years . . all these short prescriptions are declared not to run against minors , except only the prescriptions of removings , and merchants compts , &c. which except not minority , though they do immediately follow prescription of spuilzie , ejections , &c. which do except the same , and so appear to be of design omitted in the former triennial prescriptions ; and therefore , it is not like the lords will extend the exception of minority thereto , as they would not appoint a years rent to superiours , in adjudications as in appryzings , because it was omitted in the act anent adjudications , next unto the act anent appryzings , in which it was exprest , until the late act of parliament , extended the years rent to adjudications . the institutions of the law of scotland , deduced from its originals , and collated vvith the civil , canon , and feudal-lavvs ; and vvith the customs of neighbouring nations . the second part . by sir james dalrymple of stair , president of the session . edinburgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . title xxiii . assignations , where , of arrestments , and actions for making forth-coming . . the several conveyances of rights . . what rights are not transmissible . . the rise of assignations . . the tenor of assignations . . the conveyance of blank bonds , &c. . the rise and effect of intimations . . the several ways of intimation . . what assignations are perfected by possession , without other intimation . . other supplies of intimation . . intimations to more , correi debendi . . intimation is not necessary to rights registrate , for publication , as reversions , &c. . nor to orders of merchants . . nor to judicial assignation , by appryzing , &c. . nor to the legal assignation , jure marid , by marriage . . nor against the cedent , his heirs or executors , even though creditors . . to what rights assignations 〈◊〉 . assignations carry inhibitions following on the rights assigned , albeit not exprest in the assignation . . in what cases the cedents oath proves against his assigney . . assignations intimat before the cedents death , gives summar execution without consirmation . . all exceptions against cedents before intimation , are relevant against assigneys , to personal rights or tacks . . the effect of back-bonds , discharges , or assignations of dispositions , before infeftment or apprysings , during the legal . . assigneys by tutors have no execution till the tutor counts be made . . how far assigneys to mutual contracts may be debarred till performance of their cedents part . . arrestment may be granted by all judges superior or inferior , and how far they are effectual before other courts . . the effect of arrestments made in the debitors own hand . . arrestment is personal and doth not burden the successors of him in whose hands it is made , but is valide against the successors of the debitor . . arrestment is not effectual for , or against heritable sums by infeftment , but against the same , when made moveable , or any other moveable sums . . rents or annualrents are alwayes arrestable . . the effect of arrestment of rents , annualrents , or other sums laid on before the term of payment . . the effect of arrestment laid on in the hands of factors . . arrestment extends only to the debts due by him , in whose hands it was laid on . . arrestment makes the subject 〈◊〉 . the order and tenor of lousing arrestments . . in what cases arrestments laid on for sums due by decreets , are lousable or not . . the effect of lousing arrestment . . the order of actions for making forthcoming . . exceptions in the actions for making forthcoming . . the effect of arrestments for making moveable goods forthcoming . . the effect of arrestments of sums . . he to whom payment is made after arrestment , is lyable to restore . . the oath of parties in whose hand arrestment is made , must depone specially what he then owed , and when he payed . . the decreet for making forthcoming , doth only transfer the right to the arrester of the goods , or sums arrested . . but assignations do transfer the right , when intimat , without farther diligence , and so is preferable to all posterior arrestments , and respect is had to priority of hours , if exprest in the intimation . . if the arrestment be prior to the intimation , it is preferable , not failing diligence . . how assignations are compleated by intimation , citatien , charge , possession or corroboratien . . the preference of arrestments in competiticu . having now gone thorow all the several kinds of privat rights , both as to their nature and constitution , and as to their extinction and distitution ; we are come to the second part of our design proposed , the conveyance and transmission of these rights , which stand in force and are not exstinct ; for the extinction of a right is no conveyance of it seing thereby it ceasseth to exist . . rights are conveyed , or derived , either amongst the living , or from the dead ; and in both , the conveyance is different , in personal and real rights : and in immoveable and heritable rights , the conveyance amongst the living , of personal rights , is by assignation ; of real rights by dispofition , and promiscuously of both by confiscation : conveyance of right from the dead , is by succession , in moveables by executry ; in heritable rights , by the succession of heirs , and other like successors ; of which in order . . personal rights or obligations , are sometimes incommunicable , and not assignable , or transmissible , either by reason of the matter , such as most conjugal and parental obligations are , or where there is a singular consideration of the person , as in commissions , trusts , &c. most of these are intransmissible , even by the consent , both of debitor and creditor : yea , generally , all obligations are intransmissible , upon either part directly without the consent of the other party , which is clear upon the part of the debitor , who cannot , without consent of the creditor , liberate himself , and transmit his obligation upon another , though with the creditors consent he may , by delegation : neither can a creditor force his debitor to become debitor to another , without his own consent , as when he takes him oblieged to pay to him or his assigneys . . yet , that obligations may become the more useful and effectual , custome hath introduced an indirect manner of transmission thereof , without the debitors consent , whereby the assigney is constitute procurator ; and so as mandatar for the creditor , he hath power to exact and discharge , but it is to his own behove , and so he is also denominat donatar , and this is the ordinary conception of assignations . the like is done amongst merchands , by an order , whereby the debitor is ordered to pay such a person ; the debt , which indeed is a mandat , but if it be to his own behove , it is properly an assignation ; and in savours of creditors , law hath introduced judicial assignations upon arrestment , and by appyzing and adjudication . assignations are more frequent with us then any where , there is scarce mention thereof in the civil law : it is also called , cessio , which both there and with us , is most applyed to cessio bonorum & actionum ; where not only obligations , but property of things : and generally , all rights are ceded from the debitor to his creditor ; from this term the , the assigney is also called cessioner , as the assigner is also called cedent . under assignations are comprehended translations , being transmissions from a prior assigney to a posterior ; or retrocessions , which are returning back of the right assigned from the assigney to the cedent , which are also called repositions . for clearing the matter of assignations ; first , consider the requisites to make them perfect and valid conveyances . secondly , what are the effects and extent thereof . . for the first , an assignation doth necessarly require the clear expressing of the cedent assigney , and thing assigned ; and though the ordinarly stile of it be known , yet any terms that may express the transmission of the right assigned from the cedent to the assigney , will be sufficient , as if the cedent assign , transfer and dispone make over , set over , gift or grant the thing assigned to the assigney , or nominat or constitute him his cessioner , assigney , donatar , or procurator to his own behove ; and therefore , an assignation to a bond , was found valid , both against principal and cautioners , both being in the dispositive clause , though the cautioners were omitted in the clause ( with power , &c. ) which was not , though a necessary clause , decem. . . johnstoun contra jack . . the conveyance of bonds or other writes , wherein the name of the creditor or acquirer is left blank , have become of late very frequent , and have occasioned many debates , as to the conveyance of such rights , and the effects thereof : as first , whether the leaving the name of the creditor or acquirer blank be warrantable , or a fraudulent conveyance , to conceal and keep in the dark , to whom the right belongeth , that creditors may not know to affect it by legal diligence : the reason ordinarly given for taking writes in that way , is to shun the trouble of assignations , translations or intimations thereof , as they pass from hand to hand , according to that tenor of obligation , frequent in other places , whereby the debitor oblieged him to and perform such things , latori presentium ; by which he is oblieged to pay to none , but he may get up the bond , and safely pay to any that hath it . there is another reason of taking blank bonds to shun compensation upon any debt due by the cedent ; for the law alloweth compensation against the assigney , upon any debt due by the debitor to the cedent , before the assignation was intimate : but when the debitor gives a bond blank in the creditors name , he is thereby understood to pass from compensation , which hath been sustained , vide title . upon compensation , for it is a just personal objection against him who granted the blank bond , not to stop the effect or exccution thereof , upon any other debt due by him to that party , to whom he granted the bond. and albeit such blank bonds may pass amongst merchants , where intimations are not necessary upon bills of exchange , which are transmitted by the orders of merchants thereupon without intimation : and though such bonds may pass amongst persons of intire credit , yet such conveyances , if they should be encouraged , and pass currently without intimation , would be of dangerous consequence , and give occasion to much fraud ; for thereby creditors should not know in whose person such rights stood and how to affect them for just debts : and although the granter of such blank bonds , or the haver , who so transmits them , may be excluded from compensation : yet others who may have interest to propone compensation in the same way , as they may found upon a discharge granted by the receiver of the blank bond to the debitor therein , cannot be excluded from alledging compensation , there being no personal objection against them . and likewise , conveyances without a cause onerous , in prejudice of anterior creditors , by persons insolvent and fraudulent ; so that if either the first receiver of such blank securities , or the posterior receivers thereof be insolvent , and without an equivalent cause onerous , do transmit such blank securities , only by delivering the same , the intermediat havers can hardly ever be known , whose creditors might affect the right while in their hands , &c. upon which consideration , the first occasion that occurred to the lords , being a blank bond , granted by marjory sandilands , and delivered to samuel veatch , he did deliver the same to marion geddess , who filled up her name in the blank left for the creditor , and registrate the bond against sandilands the debitor ; yet tailziefer who was veatches creditor , having arrested all sums in sandilands hands , due to veatch in the competition , betwixt tailziefer the arrester and geddess , whose name was filled up in the blank , and the bond registrate in her name before the arrestment , the sum remaining yet unpayed in sandilands hands , the arrester was preferred , in respect that albeit geddefs name was filled up in the blank bond , and it so registrate before the arrestment ; yet the delivery of the blank bond by veatch to geddess , being in effect an assignation , was found to require intimation ; and therefore , tailziefer the arrester was preferred : in this case veatch , who was first creditor , was insolvent . and albe it the lords in the competition betwixt thomas hendrison and david george , decided , jan. . . preferred hendrison , whose name was in the bond as creditor , and who offered his oath for clearing , whether the bond was blank , ab initio and when filled up , yet the lords did not leave it to his oath , but took witnesses , ex officio , who proved that they saw the bond filled up with henriesons name before the arrestment laid on by thomas george , in the hands of the debitor , as due to short his creditor before the arrestment , yet there was nothing adduced to prove that ever the bond had been blank , or delivered to short. and likewise , a bond blank in the creditors name , being delivered by the receiver of the bond to a creditor of his , in satisfaction of his debt , the same was found relevant to be proven that the blank bond was delivered before the declarator of escheat of the party , to whom it was first delivered in satisfaction of a debt due by him before he was denunced , decemb. . . and jan . . lord bamff contra grant of rosasolis . there hath been nothing done since to take off the necessity of a formal intimation made to the debitor , of the filling up of the creditors name upon production of the bond , it self showing that name to be filled up ; and therefore , any arrestment upon the debt of the person to whom the bond was first delivered as creditor , or to his own behove , or for the debt of any other person , in whose possession it came for his own behove , before the said intimation will prefer the arrester . as to the manner of probation , that the bond was blank , ab initio in the creditors name , it is a strong evidence that it is written with a hand different from the body of the bond ; for though blank draughts of bonds be frequently drawn up by writers and nottars , leaving the sums , the names of the debitor and creditor blank , which are filled up by any that makes use of the draught , yet at the subscription , the filler up of the sum , the debitor and creditors name should be exprest ; for these are more substantial then all the rest of the bond , so that if the creditors name be not filled up with the hand that wrote the bond , or of him who insert the date and witnesses ; it will be presumed to have been blank ; in which case , the debitors oath may be taken , to whom he did deliver it for his own use , and that persons oath to whom he did deliver the same , whereby the progress of it , till it come to him whose name was insert , will be found out ; and upon this ground a disposition of lands bearing to be to two persons for themselves and other creditors of the disponers after-specified , after which , there were several lines written with another hand , inserting particular creditors and sums , without mentioning of the filling up there , or at the date of the write ; therefore an inhibition by a creditor of the disponers , was sustained to reduce the right , of these creditors filled up in the blank , as presumed to be filled up after the inhibition , although the date of the disposition was before the inhibition , unless it were proven by witnesses insert in the disposition or others above exception , that the blank was so filled up before the inhibition , jan. . . lady lucia hamiltoun contra the creditors of monkcastle . these blank bonds are so little favoured , that when the debitor depones that he is only debitor by a bond blank in the creditors name ; which he did deliver to such a party for his own use , but knows not now who hath the bond ; and consequently to whom he is debitor , it will not liberat him from the debt of that party to whom he did deliver it , though it may make him lyable to double payment to that party , and to him who hath the bond , it being his own deed in delivering the bond blank in the creditors name , which infers that hazard : yea , if the debitor should depone that the bond was blank , abinitio , and delivered to such a party , but afterwards it was shown to the debitor , filled up in the name of such another party , before the arrestment , whereby he became debitor to that party , and not to the first ; it is not like that quality will be respected , unless he depone that he had payed before the arrestment ; for in veatches case , the filling up of geddess name was unquestionably offered to be proven , that the bond was registrat in geddess name , before the arrestment , which is much stronger probation then the oath of the debitor . a blank bond being lost , and referred to the debitors oath , who confessed the same , and both parties agreeing upon the date , sum , and witnesses , the debitor was decerned to pay the sum to the pursuer , to whom he had delivered the blank bond upon caution , to refound , in case he were distrest upon a bond , containing , the same sum , date , and witnesses , june . . elizabeth gibson contra fise . the like was done at the instance of the executors of the person to whom the blank bond was delivered , jan. . . peebles contra tennents of rossie . . the assignation it self is not a compleat valid right , till it be orderly intimate to the debitor , which though at first ( it is like ) hath been only used to put the debitor in mala fide , to pay to the cedent , or any other assigney : yet now it is a solemnity requisite to assignations , so that though the debt remain due , if there be diverse assignations , the first intimation is preferable , though of the last assignation . and that not as a legal diligence , which can be prevented and excluded by another diligence , but as a full accomplishment of the assignation , jan. . . hutcheson contra kinloch : jan. . , laird of halkertoun contra falconer . but where both assignations were gratuitous , implying warrandice from fact and deed , the last assignation though first intimat was not preferred , because the cedent was debitor to the first assigney , by the implyed warrandice against future facts and deeds , july . . anna alexander contra lundies . . intimation may be by any legal diligence , as by arrestment , by a charge or process upon the assignation : yea , though the process be not sustained , because all parties having initerest , were not called , it will stand as an intimation ; but it is most ordinarly by way of instrument , either by the assigney himself , showing the assignation , or by his procurator , showing the same with his procuratory , wherein the like solemnities will be requisite , as are in instruments of premonition and requisition : of which , title wodsets . so an intimation was found null by exception , because one person was both procurator and nottar , july . . scot contra lord drumlanrig . neither was an intimation found sufficient by an inhibition , used by the assigney against the cedent upon the assignation , march . . nisbit contra williamson . where payment made thereafter to the cedent , was found valid , and done , bonafide . in this case it was also found , that intimation will not be supplied by a parties knowledge of the assignation . the like , june . . adamson contra mcmitchel : neither by the debitors knowledge , though by a pursuite against him upon the write , containing the assignation , but in relation to another matter therein , this was in shunning the committing a clause irritant , novem. : : sir james durhame contra lady wintoun . but assignations to annual , prestations as to mails and duties , teinds or annualrents or assignations to rights , requiring possession to compleat them as tacks , are perfected by use of payment or possession , and need no other intimation , as was found in the case of the annualrent of an heretable bond , where gerting payment of some years , preferred the assigney to a former arrester , though there was no instrument of intimation , jan : : : laird of halkertoun contra falconer . . and any write under the debitors hand , acknowledging the production of the assignation will be sufficient intimation , as if he give a bond of corroboration to the assigney , or give discharges of annualrent , or any part of the principal sum . . where there are many , correi debendi , principal or cautioners , intimation made to any will be sufficient as to all ; yet this will not exclude payment made by another of the debitors , bona fide , to whom no intimation was made ; to secure which , it is safest for assigneys to intimat to all the correi debendi . . assignations to reversions or bonds , for granting reversions , renunciations of wodsets or grants of redemption , being registrat in the register of reversions , conform to the act of par. . require no intimation , that register being designed , not for conservation of these rights , where the principals are not detained , but for publication thereof , to all parties having interest , which is a sufficient intimation , as was found in the case of an assignation to the legal reversion of an appryzing , december . . begg contra begg . . intimation being by our proper custom , so necessary a solemnity , holds not in the orders which stand for assignations amongst merchants , strangers , especially qui utuntur communi jure gentium ; and therefore , the first order by a stranger merchant , direct to his debitor here , to pay the debt to the obtainer of the order , was preferred to arresters and assigneys , using dilgence before him though there was neither intimation of the order nor acceptance by the debitor . . neither is intimation necessary to judicial assignations by appryzings or adjudications , march . . lord yester contra innerweel . hope assignations , idem , appryzings , bruce contra buckie : so that if the debt remain due , the first appryzing or adjudication , without intimation will be preferred ; but seing there is nothing to put the debitor in mala fide , payment made bona fide , will liberat the debitor . . marriage also is a legal assignation , requiring no intimation for thereby all the moveable rights of the wife are stated in the hushand , jute mariti , without other intimation then the marriage : yea , intimation was not found necessary to a reposition of the assigney to the cedent , seing the assignation was by a wife in her contract of marriage , which requires no intimation but the marriage ; and therefore the husbands reposition to her needed no intimation , decem. . . beatrix craig contra wedderly . . though in the cases aforesaid , intimation be a necessary solemnity to assignations , yet the assignation alone will be sufficient against the cedent , if he should quarrel it , because he is author thereof , and can do no deed contrary thereto : yea , it was preferred to an executor creditor of the cedents , even as to his own debt , july . . exeutors of mr. thomas ridpeth contra home . as to the extent and effect of assignations , the same extends to all personal rights , whether moveable or heretable , as to bonds , liferents , tacks reversions , mails and duties , annualrents , and to dispositions of lands and others , till infeftment follow , but is no valid conveyance of any right compleated by infeftment except liferents , which can have no subaltern infeftment , as to the ground right it self , though it may extend to the profits thereof , as to mails and duties , and annualrents , and to these no longer then the right by infeftment stands in the cedents person , whence there ariseth to him and to his assigney , a personal obliegement upon the possessors , which faileth , as to all terms after denunciation , decem. . . kinbrachmount contra sir william anstruther : and an assignation to such a sum yearly out of teinds was found excluded by an appryzing of , or assignation to the tack of these teinds , feb. . . watson 〈◊〉 pleming . assignations are effectual , not only of such rights as are granted to heirs and assigneys , but generally to all rights , though not mentioning assigneys , which by their nature are transmissible ; and therefore , an annualrent by a father to his daughter , wherein his brother and sisters were substitute , failing the heirs of her body , without mentioning her assigneys , and wherein the annualrent was redeemable , by payment of a principal sum , which she had no power to require , unless she were married ; the annualrent was found to belong to her assigney after her death , being principally constitute , and not accessory to the principal sum , june . . sir william stuart contra sir thomas stuart : and albeit superiours be not oblieged to receiye singular successors without appryzing or adjudication ; yet before infeftment , assigneys to the disposition , granted by the superiour , may compell him to receive the assigney , which was so found , though the superiour alledged , that the superiour was not in good terms with him , decem. . . ogilbie contra kinloch of bandach . but reversions and tacks in most cases unassignable , unless they be granted to assigneys ; for albeit the assignation being a procuratory , may give them interest to act procuratorio nomine , for the cedent ; yet they cannot act proprio nomine , as procurators , in rem suam ; therefore the oath of the cedent will always be competent against them , and they cannot obtain declarator of redemption , in their own name or decreet , for denuding of the wodsetter , in their favours : neither can assigneys to tacks enter in possession , by vertue thereof : yea , liferent-rights by infeftment or tack , were so peculiar to the liferenter , that no assignation can state them in the assigneys person , but only the profits thence arising : so that in the assigneys person , they are not liferents ; and therefore , the liferents of wives , which belonged to their husbands , jure mariti , as a legal assignation , fall not under the husbands liferent-escheat , as they would fall under the liferent of the wife unmarried , but under the single escheat , vide title 〈◊〉 upon escheat : upon which ground , hope upon assignations , observes , that assignations to liferent-tacks , make them fall under the assigneys single escheat , in the case of sir robert ker contra john ker. . thirdly , an assignation to a sum , carries with it the inhibition raised thereupon , hope assignation , walter hay contra mark ker. the like , where only all actions following thereupon were exprest generally , june . . blair contra gray . and an assignation to a bond , found to carry a bond of corroboration of the foresaid bond , though not mentioned therein , albeit the assignation bore not , that ordinary clause ( with all that has followed , or may follow thereupon ) which is but an explicatory clause of style of that which , innest dejure , february . . bultie contra earl of airly . . fourthly , the effect of assignations is , that the oath of the cedent cannot prove against the assigney , unless the matter hath been litigious before the assignation or intimation , as in the case after arrestment , has been laid on ; and therefore , a debitor having pursued the cedent to annul the band , upon a reason to be verified by the cedents oath , before the assigney had intimat the cedents oath was sustained , february . . pitfoddels contra glenkindie . and an assigney pursuing in the cedents name , and not in his own , albeir he produccd his assignation in the process ; yet there being no other intimation thereof , the cedents oath was admitted against him , feb. . . firazer contra frazer of strichen , july . . john rule contra laird of aitoun . or if the assignation be gratuitous without a cause onerous , the cedents oath will be competent in all cases against the assigney , june . . william wright contra george sheil : june . . jack contra mowat : but the oath of the cedent will prove against the assigney in england , as to assignations made by residenters there , june . . mcmorland contra william melvil . . fifthly , assignations being intimat during the cedents life , having summar execution , and the assigney got protestation against a suspension raised against the cedent , after the cedents death , without walkning or transferrence and thereupon all execution would proceed summarly by horning , poynding , appryzing , even after his death , hope assignation , lady craigmiller contra stevinson : otherways it will yeeld but an ordinary action , jan. . . inter eosdem . the same was found , and that there needed no confirmation , july . . mr. john murehead contra yea , though it was an assignation by a father to his son , of all his goods and debts ; yet action was sustained thereupon without confirmation , june . . james halyburtoun contra earl of roxburgh . but where there was no delivery , the assignation of all the goods was not found to give action without confirmation , june . . procurator-fiscal of edinburgh contra thomas fairholm . or where there was reservation to the disponer , to dispone otherways during his life , july . : commissar of saint andrews contra hay of bowsie . but since the restitution of bishops , and reviving of the quots : actions are sustained upon assignations , not intimat in the cedents life , if they be special , the pursuer always confirming before the decreet be extracted . : except in the matter of probation , all exceptions competent against the cedent before the assignation or intimation , are relevant against the assigney , as payment , compensation , &c. which was found , even as to assigneysto tacks , that the tacks-mans back-bond was sufficient against his singular successor by assignation , decem. . . mr. robert swintoun contra john brown : this is clear , when exceptions relates to the matter in question . . assignations to incompleat real rights , as appryzings , dispositions of lands before infeftment , are affected with the assigneys back-bond , if the competition come in before infeftment , inhibition be used , or legal diligence that makes the matter litigious ; and therefore , the back-bond of an asigney to an appryzing , was found effectual against his successors by translation , july . . sir lodovick gordoun contra skeen and crawford . but the back-bond of an assigney to a disposition of land , not drawn in question till the assigneys singular successor was infeft upon his translation , was not found effectual against the singular successor , june . . brown contra smith : for if assignations , back-ponds , or even discharges or renunciations of redeemable dispositions of lands , were effectual against singular successors in these lands , after the rights were perfected in their own persons , or their authors by infeftment , it might in a great part disappoint the design of these excellent statutes for registration of land rights , therefore , unless inhibition were used , or the matter made litigious upon these personal rights , before infeftment , they are not habile to affect a real right , or a singular successor therein ; but because appryzings within the legal , may be taken away in the same manner as personal rights ; therefore the assignations , discharges and back bonds , by these who have right to the appryzing , being made within the legal , are effectual , if thereupon the matter be made litigious before the expyry of the legal reversion or inhibition used thereupon , they will be effectual against the singular successors , even after the legal is expyred , but after expyry of the legal infeftments upon appryzings are in the same case as infeftments upon irredeemable dispositions for they are the foundation of the rights of most lands in the kingdom , and if personal rights should make them insecure after the expyry of the legal , it would be of great inconvenience . . assigneys by tutors to their pupils bonds , will have no execution till the tutors counts be made by the cedent , decem. . . james cleiland contra bailzie of lamingtoun . . it is more dubious and hath been diversly decided , when the exceptions are personal against the cedent , in mutual contracts , the contracter himself can have no action unless he fulfil his part ; but whether his assigney will be in the like case is the question , which is at large cleared , tit. . § . . and therefore shall not be here repeated . judicial assignations are oftwo sorts , according to the matter conveyed thereby , which if it be moveable is conveyed from the debitor to his creditor by arrestment and decreet , for making the arrested sums and goods forthcoming , and if it be heretable by appryzing or adjudication . as to the first , that the progress upon arrestment may be clearly taken up ; we shall first consider the arrestment it self . secondly , the lousing of it . thirdly , the action for making forthcoming . arrestment is a precept or command of a judge , ordaining the thing arrested to remain in the same case it is when arrested , till such things be done as are prescribed in the precept , or letters of arrestment : it is sometimes extended to any preparatory precept of a judge , antecedent unto any further process , so the first citation or securing of persons till tryal were made , or surety found , it s called an arrestment or attatchment , as appears in the force of the crowners arreftments of delinquents , par. . cap. . par. . cap. . but arrestment proceeds most ordinarly upon an interlocutor sentence , as when parties are contending for peats , turffs , or corn upon debateable land , these use to be arrested till the mater be decided , whereby the thing arrested becomes litigious , and any thing done to the contrary hath the effect of breach of arrestment , and is of the nature of innovatalite dependente , which therefore must be summarly restored and put in statu quo and brings no advantage but loss to the actor . . but arrestment which we are now about , is precept or letters of arrestment , arresting debts or goods in the hands of any party , haver thereof , at the instance of the creditor of him to whom the debts or goods belong to remain under arrestment , untill the debt whereupon the arrestment proceeds , be secured or satisfied ; therefore arrestments may be granted by all judges ordinar , superior or inferior ; but the arrestment of an inferior judge was only found effectual in process before himself , and before no other inferiour judge , march . . smith contra miller . but upon occasion of this debate , most of the lords thought an inferiour judge might proceed upon the lords arrestment , passing in the kings name , and there is not wanting ground to think that an inferiour judge may proceed upon the arrestment of another , seing all of them proceed alone upon the kings authority , as if the defender change his domicile . an arrestment made by the inferiour judge , where hedwelt before , ought not to be ineffectual , nor he necessitate to pursue before the lords , as was found in an arrestment before the admiral , march - . 〈◊〉 contra gray . yet an arrestment upon the precept of an inferiour judge , was found null , because execute without the jurisdiction of that judge , although the party in whose hands it was made , dw eltwithin the jurisdiction , decem. . . mr. andrew miller contra orsburn , crawford and the laird of bishoptoun . the reason hereof was , no execution is valid , extra tertitorium judicis , which doth not conclude against the arrestment of an inferiour judge , made within his own jurisdiction ; but that it would be sustained against that party in any process before the lords , or any superiour having cumulative jurisdiction , or even before a co-ordinat or inferiour jurisdiction , in which , if any question were made , the lords by letters of supplement , would readily auctorize the same . arrestment requires no other solemnity but the execution thereof , by him to whom the letters are directed , which requires the like requisites as other executions do : of which hereafter . . there hath been an extraordinary form of arrestment , sometime used and sustained , whereby creditors did arrest the goods of their debitors in the debitors own hand , and thereupon did pursue such as bought from them , whereof there is an instance observed by dury , jan. . . betwixt the laird of innerweek , john wilkie and the lady bothwel , wherein innerweek having arrested a parcel of wool in the lady botwels hand , upon a debt owing by her to him , and she having thereafter sold the wool to john wilkie , who payed the price , he was decerned to make forthcoming the true worth of the wool to innerweek , although nothing appears instructed , that there was any collusion betwixt the lady bothwel and wilkie , but what may be conjectured from the lords allowing the price of the wool. this kind of arrestment hath not been drawn in example , for i have found no instance of it observed by any since that time ; and as the instance observed , is but the arrestment of one particular , if it were to be allowed it might be extended to more particulars , even to all the moveable goods and means of the debitor , and certainly it would be ordinarly so used ; as straitning the debitor more , that he could dispose of nothing , but to the use of the arresting creditor , and so it would become an inhibition in moveables , yet much more inconvenient , because inhibition must be published at the mercat cross , and registrat ; whereas arrestment may be done most privatly before two witnesses : and though inhibitions at first were designed to disable debitors , not only to dispone or dilapidat their lands or heritage , but their moveable goods , as the stile of inhibition doth still express , yet experience did early show , that there was a necessity for current course of moveables , and that it could not consist with traffick and commerce , that no man could securely buy moveables without inspection ofregisters ; and therefore , inhibitions have now no effect as to moveables , much less should arrestment of the debitors moveables in his own hand , which could with no reason affect the moveables , when disponed for a just cause to third parties , much less could it infer breach of arrestment against the buyers after arrestment ; and all the effect it could have , were only to superad upon the debitor , the penalty of breach of arrestment thereby to confiscat all his moveables , whereas there are ordinarly liquidat penalties agreed upon , of consent of debitor and creditor . . arrestment being a personal prohibition , used against him in whose hands the arrestment was made , if he die it is not extended to his successors , but they may dispose of the goods or sums arrested , unless it be renewed in their hands , in the same manner as an inhibition , which is also a legal prohibition , extending to heretable rights as arrestment doth to moveables ; but though the debitor whose goods or sums were arrested die , the arrestment ceasseth not , but the debt being established against his successors , processmay proceed upon the arrestment , feb. . : isobel glen contra john home . jan. . . james riddel contra mr. william maxwel . as to the effect and extent of arrestments , they can only be laid on , and affect moveable goods or moveable debts , and can only be made use of for satisfying of moveable debts ( what rights are moveable and what heretable , hath been shown in the title real rights ) wherein by heretable , not only these are understood , which are properly so by infeftment , but also such sums and deeds , as are by destination such , as bearing obliegement for infeftment or annualrent , even though the bond did bear no clause of requisition ; yet it did bear annualrent , arrestment , or appryzing , had been found null thereupon , unless it had been made moveable by a charge , july . . john cranstoun contra laird of eastnisbit . the like , hope obligations , alexander morison contra creditors of john richardson . john cranstoun contra laird of lugtoun , yet the contrary hath also been found in bonds , bearing annualrent without clause of requisition , that poinding , arrestment and appryzing , might proceed without a charge , july . . laird of clakmannan contra barronnie . jan. . . johnstoun contra james lotch : but the matter is now cleared by the act of par. . cap. . renewed , par. . cap. . declaring that all bonds and sums , though bearing annualrent , are arrestable at the instance of any creditor of that person , if infeftment hath not past actually thereupon ; yet a sum whereupon appryzing had followed , was found not to be arrestable by the appryzers creditor ; and therefore , an appryzer from that prior appryzer , though posterior to the arrester , was preferred feb. . . lockhart contra lord bargonzie . and though they do not so clearly determine upon what bonds arrestment may proceed , as against what bonds or sums it may proceed : yet it bears equally for satisfying of any debt , which though it cannot be extended to heretable debt , upon which actual infeftment , is till they be made moveable , yet ought to be extended to all other moveable debts , upon which infeftment hath not followed , that a pari , as such debts are arrestable without a charge , so may they be arrested for satisfying of the like debt , without a charge upon the debt to be satisfied , more then upon the debt arrested for satisfying thereof . . though no heretable right , upon which infeftment hath past , can be arrested till it be made moveable : yet the rents and profites thereof , are arrestable and moveable , december . . ogilbie contra lord ogilbie . . and so are the bygones of an annualrent , constitute by infeftment , for these bygones are as to all effects moveable , though the right it self is heretable , as fruits falling from a tree are moveable , though the tree be not . . yea , arrestment of annualrents , or mails and duties , is effectual , though laid on before the term , if the debitor to whom they belong were not denuded thereof before the term , the term being current when it was laid on , march . . brown contra jan. . . hamiltoun contra falconer : where it was found that the arrestment did only extend to the term current against an assigney , though not intimating till long after , seing he was a singular successor , and had attained payment of some terms annualrent prior to the arrestment ; but it will not extend beyond the subsequent term , where the rent is payed termly , as in silver rents , hope arrestments , mr. roger mowat contra walter dick. otherways it will extend to the whole year , in which it was laid on , as in ferms , which are payed together , ibid. thomson contra captain wishart . yea , an arrestment of rent laid on before the term , was preserred to a posterior appryzing , not having infeftment before that term , july . . william litster contra aitoun and slich . and an arrestment laid on , currente termino , was preferred to a posterior assignation to that term , july . . creditors of andrew scot compeating , arrestment is also valid , being laid on upon sums before the term of payment , feb. . . brown contra laird of johnstoun , eodem die , rentoun contra atcheson . but in all these , the execution was superceded till the terms of payment of the arrested sums were payed , july . . scot contra laird of drumlanrig . yet arrestments ought not to be laid on for satisfying of debts , whereof the term of payment is not come ; therefore , such an arrestment was excluded by an arrestment posterior , which was laid one for satisfying a sum , whereof the term of payment was come , when it was laid on , july . . lord pitmaiden contra william and robert patersons . yea , it was extended to the price of lands , though laid on before write , but after agreement , hope arrestment lord dalhousie contra . neither was arrestment effectual , being only laid on in the hands of the debitors factor , and not in their own hands for making the same forthcoming for payment of his debt to whom it was due ; because factors are not debitors but their constituents , hope arrestment , william muirhead and mcmichael contra william wallace . . arrestments have never been extended to future debts or goods for arrestments , both by their name and nature , do only stop the debitors goods or debts arrested , to remain in the same condition they were in when arrested , till caution be found , or sentence be obtained for making forthcoming . but inhibitions do prohibite the party inhibite , and whole lieges to buy from the person inhibite , till the debt be satisfied , which is absolute , and extends against all buying or blocking with the inhibite , whether pro acquisitis , or acquirendis . . arrestment orderly laid on , renders the thing litigious , so that an assignation made thereto , though to a creditor thereafter , hinders not the arrester to prove the debt by the cedents oath , decemb. . . dowglas contra belshes . . as to the second point proposed , concerning the lousing of arrestments , it hath been said before , that the intent of arrestment , is the satisfaction of the arresters debts , by the action , for making forthcoming , which is a judicial assignation to him , of that which is arrested , or otherways by security , when he whose goods or sums are arrested , findeth caution , and thereby louseth the arrestment , which is done by supplication to the lords , and their deliverance , which of old , gave warrand to the messenger to receive caution , and louse the arrestment ; but is well amended by the act of par. . cap. . annulling that way of lousing arrestments , and ordaining caution to be found in the books of session , before giving out of the letters , which are not effectual , when the arrestment proceeds upon a decreet ; and therefore , the letters express the arrestment to be loused , unless it proceed upon a decreet . . but if the arrestment proceed upon production of the principal bond unregistrate , there being then no decreet of registration , it may be loused , feb. . . david graham contra george bruce and doctor martine : or if the decreet be turned in a lybel , june . . james murray contra john hall : or if the arrestment was laid on after the decreet was suspended ? or if the term of payment of the sum , for which it was laid on was to come , nov. . . mosman supplicant : or upon consignation of the sum arrested for , june . . hamiltoun supplicant : or when the decreet upon which the arrestment was raised , was turned to a lybel , june . . james murray contra john hall. but when the arrestment was upon a dependence , though the decreet proceeded upon the dependence before the lousing of the arrestment ; yet it was found , the arrestment was loused upon caution , june . . sibbald of rankillor contra sibbald his son. in lousing arrestments , no juratory caution was admitted , july . . colledge of st. andrews supplicant . . arrestment being loused , the party in whose hands it was made , is fred of the action following thereupon , and may safely pay the sum , or deliver the goods arrested to the louser of the arrestment , june . . balmerino contra lochinvar , hope arrestment , gordoun contra brown. but if the sum remain unpayed , the arrester may proceed against the person in whose hands he arrested , feb. . . graham contra bruce . in this case the debitor who loused the arrestment , had granted assignation to the debt arrested ; yet the arrester was preferred to the assigney , in respect the caution is insufficient ordinarly , which comes in the place of arrestments . upon arrestment there ariseth two actions to the arrester , the one is against the cautioner , found in lousing arrestment ; the other against the person in whose hands the arrestment was made . . the other action for making sums or goods arrested forthcoming , is ordinary ; and for understanding the requisites of it , it would be adverted , that arrestment may be raised upon production of the principal bond , without decreet or dependence , march . . binnie contra ross : feb. . . graham contra bruce . hope arrestment , thomson contra mcmorran . secondly , it may be raised upon an action depending . thirdly , upon a decreet obtained against the debitor , whose sums are arrested : but there can be no process for making forthcoming , till the debt be liquidat and established by a decreet at the arresters instance , against him whose goods or sums are arrested , or against some representing him , which was so done , though the principal parties advocat compeared and consented , march. . . somervel contra herriot . hope transferring , laird of lamingtoun contra sir james durham . and if that party dy before the decreet for making forthcoming , the decreet must be transferred against these representing him : but if none will enter to be heir , or executor to him , but renunce ; yet the party that might succeed , must be called cegnitionis causa , spots . de haereditariis actionibus , murray contra dalgleish ; and therefore , when the arrestment is upon a principal bond , or upon a dependence , the bond must be regisrate , or decreet obtained thereupon , or upon the dependence before the party in whose hands the arrestment was made , be oblieged to answer the party whose sums and goods are arrested , must not only be called in initio litis , but to all the dyers of the process , march. . . captain stuart contra iohn inglis . in this process the arrestment was not found instructed by extracting the horning , containing arrestment , and of the executions , but that the principals of both must be produced , spots . arrestment , stevin boid contra wilson . . as to the exceptions competent in this action ; first , it is not competent to the party in whose hands the arrestment was made , to alledge payment made by the party whose goods or sums are arresied , that being justertij , competent only to that party himself who must be called , decem. . . mr. patrick hamiltoun contra dunlop . neither will it be relevant to either party to alledge the debt ; whereupon the arrestment is raised , is suspended ; but the reason of suspension must be repealed by way of defence , ian. . . major stirling contra mr. iames aikenhead . but it will be relevant to alledge that the arrestment is null , as being execute upon the sabbath day , feb. . . charles oliphant contra dowglas : or that the arrestment not being upon a decreet , was loused ; and that the sums are payed : it is also relevant , that the goods arrested were lawfully poynded by another creditor of the party to whom they belonged , because arrestment is but a begun incompleat diligence , and doth not transmit the right , till decreet be obtained thereupon : but others using more compleat diligence will carry the same , iune . . wright contra thomson and archibald dick , which was sustained , albeit the arrestment was laid on for excise , decem. . forrester contra the tacksmen of the excise of edinburgh : yea , though the party in whose hands arrestment was made . suffered the poynder to enter his cellers , and poynd the goods arrested , march . . william dick contra spence and thomson . in this case the haver voluntarly opened his celler by paction with the poynder which was not respected , seing he refused not entry to the arrester , if he had demanded it , feb. . . lesly contra lady ludquharn . but this exception will be elided by this reply , that the party in whose hands the arrestment was made , colluded with the poynder , and voluntarly exhibited the goods arrested to be poynded , not being passive therein , but active to prefer the poynder , as was formerly found relevant , hope arrestment , doctor kinloch contra halyburtoun . iames white contra robert blackater . ian. . . iohn bell contra fleming and watson . it is also a relevant exception , that the ground of the arrestment or the sum arrested was heretable , before the act of par. . or since that infeftment hath passed upon either , unlessit be made moveable ; and therefore , arrestment being laid on upon sums consigned , for a redemtion was not found effectual till declarator of redemption pass , which only makes the sums moveable ; and during the dependance of the redemption , these sums cannot be arrested , as belonging to the user of the order , because they come in place of the lands redeemed , and can belong only to the wodsetter , or appryzer , or any having right from them to the lands wodset ; but after redemption , the sum consigned may be arrested and made forthcoming for payment of the wodsetters debt , spots . arrestment , hepburn contra hay . it is also a competent exception , that the thing arrested is a proper aliment , expresly constitute , and not exceeding the measure of aliment , novem. . . thomas donaldson contra kirkaldie and barclay . and the fee of a servant was not found arrestable , in so far as it was necessary for the service he was in , but only for the superplus , more then was necessary for his aliment in such a service , july . . heugh begg contra robert davidson preceptor of heriots hospital . the like holds in the kings pensions and fees of his publick ministers , lords of session , and others which are not arrestable in the thesaurers hands by act of sederunt , . and was so found in the case of sir robert murray justice clerk , a part of whose sallary was arrested , feb. . . . when pursuits are for making arrested goods forthcoming , which are not liquid , the party in whose hands arrestment was made , will not be decerned for making forthcoming a liquid sum for the price : but if he offer the goods ipsa corpora , the decreet will contain a warrand to the magistrates of the place to rope the goods arrested , that the price thereof may be delivered to the arrester , novem. . . stevinson contra sir john paul. appryzing and adjudication of heretable sums , whereupon infeftment hath not followed , being little in use , though competent since the act of parliament , . we shall say no more of it in this place , but as we have considered these several ways of transmission of personal rights severally ; we shall now consider them joyntly as they fall in competition , for preference amongst themselves , and each with others . . in these competitions it must be considered that arrestment doth constitute no right in the arrester , but is only a legal prohibition to alter the condition of the thing arrested , and to pay or deliver the same to the arresters debitor ; but that it may remain in his hand for satisfaction of the debt arrested for : and it is only general arresting all sums of money or goods , in the hands of the party in whose hands it is laid on , due or belonging to the arresters debitor , for satisfying of the debt whereupon the arrestment proceeded ; and therefore , cannot be of more effect , then a denunciation of lands to be appryzed , or a citation on a summonds of adjudication ; and therefore , doth constitute or transfer no right , but is a legal diligence , rendering the subject matter arrested litigious , so that the party in whose hands the arrestment is made , cannot alter any sums or debts belonging to that debitor in prejudice of the debt arrested for , until the arrestment be loused , and caution found for the debt or decreet , absolvitor or declarator be obtained , excluding the arrestment : and if he do any thing in the contrary , it infers breach of arrestment , confiscating his moveables , and he is lyable , as if the sums or goods remained in his hand , pro possessore habetur qui dolo desiit possidere : and though the arrestment have no intimation to the arresters debitor , or any of his creditors ; yet if any of them recover the sums or goods arrested by the collusion or neglect of the party , in whose hands arrestment is made , he will still remain lyable ; and if he have not acted bona fide , he will incur the breach of arrestment ; as if by collusion and gratification , he or his procurator ( whose deed will be presumed his ) oppose the arrester , and procure delay to compear , and depone and acknowledge the debt , or he holden as confest to another arrester ; neither will he be liberat by offering his oath , that he gave no such warrand , for the imploying a procurator is a sufficient warrand for all the common course of process , and requires no special mandat : yea , if he pay or deliver to any other arrester , or even be poynded upon a decreet at his instance , he will not be liberate , seing he ought to have raised a process of multiple poinding , calling the debitor and all the arresters or assigneys to dispute their several rights , that once payment to the party , found to have best right , might liberate him ; yet if he have payed , he does thereby without a direct assignation , come in the place of the party to whom he hath payed ; and if he can show that parties right , is preferable to the arrester insisting , he will be heard thereupon . and unless it be found that he proceeded warrantably , not only will he be decerned to make forthcoming , though it infer double payment ; but he to whom he payed unwarrantably , will be compelled to restore and satisfie the arrester , the subject having been litigious by his arrestment , before the other party recovered the same , albeit he have recovered payment , bona fide , without any fault in him , but by the litigiousness of the subject ; for payment made bonafide , with a preferable right , relieveth only the payer , who was or might have been compelled to pay , being conscious of no other right : for it is not relevant for the party obtaining payment , bona fide ; nor will that ground of law secure him , qui suum recipit , licet a non debitore non tenetur restituere , which holds only in voluntary payments , a non debitore , and where the subject is not litigious . upon the same ground , albeit the party in whose hands arrestment is made , collude not , but do equally passive , or equally oppose the competitors : yet if the debitor collude and propone defences against some of the competitors , and not equally against all , and thereby procure delay , and terms to prove , if he succumb , though another pursuing in a several process , before the same or different judge , obtain decreet and payment thereupon , yet he will be necessitate to refound , if he had not a preferable right . . if the party in whose hands arrestment was made , appear and offer to depone , if the pursuer suffer him to depone generally , that the time of the arrestment he had neither goods nor sums belonging to the debitor in his hands , the arrester will not , ex intervallo , obtain him to be more particularly interrogate , ad vitandam frandem & perjurium ; but if before , or at his oath given in general , there be special interrogators offered by the party or the judge , whether at any time in his hands , sums or goods belonging to the arresters debitor , and how , and when he satisfied or delivered the same , he will be holden as confest , unless he depone particularly that he be not his own judge , as to the time when he was due , or when he ceassed to be due ; for he may pretend or imagine , that the time of the arrestment , he was not debitor , because he had payed to an assigney , whose assignation was prior to the arrestment , albeit intimation was not prior , though he had promised payment before intimation , yet he could not thereupon have been compelled to pay it , if before payment an arrestment had interveened , because his promise could be but understood to be according to the parties right ' to whom he promised , which he could not quarrel ; but if another did exclude that party , he could not be lyable to double payment , albeit he had given a bond of corroboration , unlesse the assigney had offered to intimate , and he had hindered the same , as unnecessary , and promised payment ; for then through his own fraud or fault , he would be lyable to pay both parties ; and therefore , the promise of payment was only found relevant to exclude an arrestment , after the promise , to be proven by the oath , or write of the arrester , and not of the promiser , or party to whom he promised ; yet if the promise were not so proven , and thereby the arrester were preferred ; the party promiser , in whose hands the arrestment was made , was declared free of the promise , unless there had been transaction , or that the promiser had undertaken the hazard , mr. james elphingstoun contra george home and the laird of steonhope , december . . . that which transferreth the right , is neither the arrestment , the citation , nor any thing in process , but only the decreet for making forthcoming , which is in the same conditions , as to subjects , arrestable as appryzings , or adjudications are to others , which do not import full satisfaction of the debt , and do not fully liberate the debitor , but that other diligences may be used for the same debt , unless he possesse till the legal expyre ; and in the same way after decreet , for making forthcoming , the arrester may use other diligences , but in competition with other creditors using diligence , he may not exclude them and keep up his own diligences , but hath his option thereof . seeing the arrestment maketh the subject arrested litigious , it hath the common effect necessarly introduced by law , in re litigiosa , that inchoat diligence cannot be excluded , either by the voluntary deed of the debitor , or by any legal diligence posterior , unless the user of the first inchoat diligence become negligent , nam vigilantibus , non dormievtibus jura subveniunt . the application of these grounds will easily clear the preference in the competition of arrestments with assignations , or of arrestments with arrestments . . and as to the competition betwixt assignations and arrestments ; an assignation duely intimate , is a full and compleat transmission of the right assigned , if by its nature it be assignable , and thereby the right of the cedent ceasseth , and the assigney becomes creditor , and hath no necessity of any further diligence to compleat the right : therefore no posterior arrestment will be preferred to an assigney , if the intimation be before the arrestment , which is accounted , not only by dayes , but by houres : but if the intimation and execution of the arrestment be both in one day , and express no hour , if the arrester be not negligent , they will come in , pari passu , because no priority doth appear , spots . debitor and creditor , mr. cornelius ainsly contra 〈◊〉 edward , which will hold in the competition of diverse arrestments , or diverse assignations , where no priority doth appear ; for we have little respect to the anteriority of debts in competition , but to the anteriority of diligence , as is evident in appryzings and adjudications . . but if the arrestment be prior to the intimation , the arrestment is preferable , if it fail not in diligence ; and therefore , an arrestment was preferred to an assignation intimate the same day , but two hours thereafter , january . . davidson contra balcanquel : yea , an arrestment upon a dependence , was preferred to a posteriour assignation , though intimate half a year before sentence , upon that dependence , hope assignation : it must be in the discretion of the judge to determine , when arresters fail in diligence . . and as to intimations , they are inquestionable , if done by instrument , or by charge of horning , at the instance of the assigney upon the assignation , because the letters bears , that the assignation was produced to the judge , passer of the bill : and there is little doubt , that assignations attaining effect by possession , will be in the same case , as if intimate by instrument : or if bond of corroboration be obtained upon the assignation , or discharges instructing payment of a part of the debt assigned : or if in process , the assignation be judicially produced ; but the case is not alike , nor have i observed it decided , if citation before the assignation be judicially produced , will exclude an arrester , medio tempore . . as to the competition of arresters , the first arrestment , not failing in diligence , is preferable ; and therefore , the first arrester was preferred , though prior but by one day , though both obtained decreet upon the same day , and both used full diligence , february . . collonel cuninghame contra layel . and likewise , an arrestment by letters from the lords of session , and first citation thereupon , being insisted in without negligence , was preferred to a posterior arrestment , though obtaining the first decreet , before a sheriff , in respect that decreets before the lords , cannot be so summarly obtained , especially , seing they must abide the course of a roll , november . . sir robert montgomery contra alexander rankine . and a posterior arrestment was preferred to a prior , in respect the term of payment of the sum , for satisfying of which , the first arrestment was laid on , was not come at the time of the first arrestment , but before the second arrestment was laid on , the term of payment of the sum , for which it was laid on was past ; albeit the terms ofboth sums were past before the competition came before the lords by advocation , july . . charles charters contra cornelius neilson : july . . lord pitmaiden contra william and robert patersons . and for the same cause , arrestment upon a decreet may be preferred to a prior arrestment upon a dependence ; because the ground of the former hath paratam executionem : and not the ground of the latter : yet an arrestment upon a dependence was preferred to a posteriour arrestment , obtained upon production of a registrable bond , before it was registrate , and so was not raised upon a decreet , hope arrestment , thomson contra memorran . and arrestment laid on after the term of payment of the debt arrested , was preferred to a prior arrestment , laid on before the term of payment upon the debt arrested , july . birnie contra mowat and crawfoord . and an arrestment laid on verbally by a towns officer , was excluded by a posterior arrestment , having an execution before witnesses , albeit the verbal execution was the custom of the place , july . . warrock contra brown. and a first arrester was not excluded for want of diligence , but was preferred to a posterior arrester , who had brought his cause to be concluded , at which time the prior arrester compeared , and produced an assignation , after his arrestment from the common debitor , whereby he needed no further diligence , july . . birnie contra crawford : this 〈◊〉 was found no voluntary gratification , seing it preferred the first legal diligence : and upon the same ground , an assigney by a bankrupt , was preferred to a posterior arrester , in respect the assigney had used the first diligence by horning , before the arrestment , novem. . . bishop of glasgow contra nicolas and brown. title xxiv . dispositions , where , of resignations , in favorem , appryzings and adjudications of real rights . . dispositions of properly carry virtually all lesser rights . . how superveening rights , belonging to authors , belong to their singular successors . . dispositions descrived . . how dispositions are accomplished in equity . . how by the law of the romans , and other civil nations . . possession accomplisheth reall rights . . properly of moveables is presumed from possession . . resignation in favorem . . dispositions or assignations , by these who have no right with consent of these who have right , how far effectual . . procuratories or infeftments of resignation , after fourty years possession by charters , needs not be produced . . infeftments on resignation carries any lesser right in the disponer , though not exprest . . the effect of resignations accepted by the superiour , before infeftment follow thereon . . superiours are not oblieged to receive the singular successors of of the vassals after infeftment expede , though it bear to the vassals heir and assigneys . . appryzings can only proceed on liquid sums . . appryzings reaches al heritable rights though not provided to assigneys . . appryzings carry all personal rights , without intimation . . the rise of infeftments upon posterior appryzings . . infeftments may be obtained summarly upon appryzings after the debitors death . . the effect of appryzings as to non-entry , ward , and liferent-escheat . . the denunciation whereupon appryzing follows , renders the matter litigious , and excludes posterior voluntary rights . . competition of appryzings . . the effect of appryzings at the instance ofsuperiours against their own vassals . . the effect of appryzings , as to removings , mails , and duties . . allowance of appryzings . . whether superiours must receive appryzers , not instructing their authors right . . the quantity of the years rent due to superiours for entering appryzer . . what course is competent against contumacious superiours . . the legal reversion of appryzings . . appryzers may use other diligence for their payment , though the apprizings were expired . . nullities of apprizings . . modification of exorbitant penalties in apprizings . . apprizing sustained without a charge for the sum . . apprizing sustained , though the letters and execuitons were blank as to the lands , the messenger who denunced , being judge to the apprizing , in which they were filled up , which was a more solemn execution . . an apprizing sustained without producing the letters of apprizing , being long before , but the instructions of the debt were found necessary to be produced within prescription . . an apprizing sustained , though by dispensation at a private place , and the court of apprizing adjourned . . an apprizing of rights , generally preferred to a posterior apprizing of the right in special , being an annualrent . . apprizings become extinct by payment , and the debitors right revives without new investiture . . in what cases apprizers must possesse and how they are countable . what alterations in apprizings are introduced by the act of parliament , . cap. . as to the indurance of the legal , and coming in pari passu . . now apprizings coming in the person of the debitors appearand heir , are satisfiable from him or his trusties . . how apprizings against parties charged to enter heir , are redeemable . . legals run not against minors . . apprizers continuing to possess after the legal , can use no other diligence , but the sums are thereby satisfied , though a part of the lands were evicted , the rest being worth the whole sum . . the rise of adjudications . . the form of adjudications on renunciations to be heir . . why adjudications past at random , and may now be put to instruct some interest in the debitor . . what rights are affected with adjudications . . superiours must receive adjudgers , paying a years rent , unless they pay the creditor , and then the superiour will have no years rent . . how adjudications are redeemable . . adjudications may be for the appearand heirs own debt . . how adjudications become extinct . . the form and effect of adjudications to perfect dispositions . . the form and effect of the partial and total adjudications introduced by the act of parliament , . of september , . a disposition may , and sometime doth signifie the alienation of any right , whether real or personal , so the stile and translations ordinarly bears , the assigney to transfer and dispone , as assignation is sometime extended to the disposal of real rights , which are srequently provided , not only to heirs , but to assigneys ; yet these terms are so appropriat and distinguished , that a disposition is applyed to the alienation of real rights , and assignation of personal rights . . in both dispositions and assignations , the disponer or cedent is called authour , and the acquirer is called the singular successor , and in both , this common brockard takes place , jus superveniens authori accrescit successori , that is , what ever right befalleth to the author after his disposition or assignation , it accresseth to his successour , to whom he had before disponed , as if it had been in his person when he disponed , and as if it had been expresly disponed by him , whence ariseth the distinction ; betwixt dispositions and assignations , express and implicite , or tacit when the right is not expresly disponed , but tacitely or virtually , as he who dispones the property , hoc ipso , doth tacitely and virtually dispone any lesser right , as a reversion , servitude , liferent , though no particular mention be of these , according to another rule of law majori inest minis , so ary person infeft in property , and his seasine registrat , will have right to a reversion , if no more was in the disponers person ; albeit assignations to reversions require special solemnities , as to be registrat in the register of reversions ; yet the registration of this seasine will be equivalent : so a liferent right , granted by him , who had only right of tack , was found to carry the right of that tack , during the liferenters life , hope liferents , laird rossyth contra his tennents . the like of a back-tack , ibid. lady boyd contra her tennents , stuart contra fleming . the like found of a liferent , which carried the right of a reversion , quo ad , the liferenters life , decem. . . beg contra beg. . there is no question of this accression , when the disponer disponeth for all right he hath had , or shall acquire , which is a general assignation or disposition , of any right superveening , if the debate fall betwixt the disponer and successor , there is also little question , if the right disponed have exprest or implyed absolute warrandice , as being for a cause onerous : in which case , if the question be betwixt the disponer and successor , he who disponed for an equivalent cause , importing his acknowledgement of having an absolute right , cannot cloath himself with any posterior right , which would infer warrandice against him , if it were in another person ; and therefore , that personal objection excludes him , it being in his own person : neither is it questionable , that if the disposition or assignation be limited , as being only to a particular title , or generally , for any right the disponer hath , or bearing warrandice from his own fact and deed , then if he acquire a posterior right , he may make use thereof against that person to whom he disponed , much more may any singular successor of his ; and therefore , in the case decided , july . . betwixt dam elizabeth dowglas and sir robert sinclar her spouse contra the laird of wedderburn , anent the teinds of kello and kimmergem , whereof the earl of home , common author , gave a tack to wedderburns predecessor , with warrandice from his own deed ; and any right the earl then had being reduced , he did thereafter acquire a new right from coldinghame , and thereupon granted a right to william dowglas of evla , to whom the said dam elizabeth dowglas is : heir , which supperveening right was found not to accresce to wedderburn , to defend his tack , seing he had not absolute warrandice , but from his own deed only : but the main question is , when the contraversie is not betwixt the author and the party to whom he dispones , but betwixt the singular successor of that author and that party to whom he had disponed before , in which case the personal objection upon the warrandice , hath no place ; and oftimes the right superveening , requireth special solemnities , and cannot be transmitted without these , as resignation , confirmation , seasine , yet even in these cases , reason and the lords decision extended the rule so , that the superveening right , ipso facto , accresces without any new solemnities ; but if the necessar solemnities have preceeded when there was no right , whensoever the right superveens , it is drawn back , as if it had been in the time of the former solemnities , fictione juris ; and so if a superiour acquire the right of forefaultry of his superiour , the same ipso facto , accresceth to the sub-vassals , and cannot be made use of against them , spots . conjunctfees , malcolm crawford contra mordistoun . the like was found , feb. . . . boid of penkil contra vassals of carsluth : in which case the vassals were ordained to pay their share of the composition of a ward : but where the superveening right befell to the authors appearand heir , and was by him disponed to another , before he was entered heir ; in that case , the authors appearand heir , obtaining gift of the liferent-escheat of lands disponed to vassals , the said liferent was not found to accresce to the vassals , because the appearand heir was denuded thereof , in favours of another , before he was heir , july . . james skeen contra vassals of athol ; this rule was so far extended , that a supervenient right , by decreet of reduction and improbation acquired by swintown , having right to the lands of brimstoun , was found to accresce to the earl of lauderdail , being restored , july . . earl of lauderdale contra heretor of wolmet . but where a person having a disposition of lands , did insest another in liferent himself never being infeft , did assign the disposition to a third partie , who was thereupon infeft , that disposition was not found to accresce to the annualrenter , because his author was never infeft thereupon , june . . james brown contra smith . it is the common opinion , that if a party grant infeftment , before he be infeft himself , and he thereafter infeft , it accresceth to that party whom he infeft before , if the question be betwixt them , but i have not observed it directly decided , quid juris ; in these 〈◊〉 , if a person not infeft , do give right to two parties , and thereafter be infeft , to which of the two his superveening infeftment will accresce : or if he infeft one , when he is not infeft , and thereafter another , when he is infeft , which of these will have right ; but it seems the first infeftment in both cases will be preferred , because she common authors right accresceth , ipso facto : yet if the common authors infeftment proceed upon the diligence of any party , it may seem the same will only accresce to him who is the procurer of it ; yet even in that case , it was found to accress to the first right , with absolute warrandice , june . john nielson contra menzies of enoch . but now to return to what is special in dispositions . . a disposition is the transmission , or conveyance of real rights from the disponer to his singular successor , not in contemplation of the disponers death , for such are comprehended among successions , from the dead as legacies , donations , mortis causa , &c. a disposition is said to be a conveyance , and so it is taken , not for the dispositive act of the will only , but whatsoever else is requisite to compleat the conveyance , as tradition , resignation , possession , though a disposition is oftimes taken as distinct from these , for the more clear uptaking of conveyances of real rights ; consider first , what is requifite to transmit them by the law of nature , without any positive law or custom : and next , what by these is requisite to transmit the several rights . as to the first , it hath been shown in the title ( real rights ) how far dominion and property is competent by the law of rational nature , and it cannot be doubted , but that though there were no positive law nor custom , that the rational creature is naturally instructed how to dispone and alienate his own , the power of disposal being the characteristick of dominion , which is natural to man , being created lord of the creatures . the question then is , by what act men may naturally exercise the power of disposal , which can be no act of the understanding , that being only contemplative , and nothing active nor operative , for constituting or transmitting of rights , but it must needs be an act of the will , for by it , rights are both acquired , relinquished and alienate : there may be three acts of the will about the disposal of rights , a resolution to dispone a paction , contract or obligation , to dispone , and a present will or consent , that that which is the disponers , be the acquirers . resolution terminats within the resolver and may be dissolved by a contrary resolution , and so transmits no right ; paction does only constitute or transmit a personal right , or obligation whereby the person oblieged may be compelled to transmit the real right it must needs then be the present dispositive will of the owner , which conveyeth the right to any other , which is exprest by such words , de presenti , titius disponeth , alienateth , or annualzeth , gifteth , granteth , selleth , &c. which connot properly import an obligation , having its effect in the future ; though there may be obligations consequent as to delivery , warrandice , &c. but these terms do expresse something presently done , and not ingaged to be done , and so can be nothing else but alienation or transmission of the right itself . that the dispositive will of the owner alone , without any further , is sufficient to alienate his right , without delivery or possession , is evident in personal rights , wherein the dispositive clause of assignations or translations is sufficient ; intimation or possession being introduced for expediency in some cases , by our custom , that the dispositive will is also sufficient to transmit real rights ; it appeareth , because the will alone is sufficient to retain , not only rights , but even possession it self , though there be no corporeal act exercised therein ; and therefore , the act of the will alone , as it retaineth , so may it relinquish that right or possession , whereby it ceasseth to be the former owners ; and therefore , if the will be not simply to relinquish , but to remit or transmit the right to any other , hoc ipso , that other doth become dominus ; dominion being the power of disposal , which is a faculty , and no corporeal thing , and may be fitly constitute in the acquirer , by the will of the disponer , unlels the acquirer reject it , for the disponer before having the only power of disposal , and remitting that power to the acquirer , the thing cannot be said to be nullius , as being relinquished ; and therefore , the dominion or disposal of it , must either be in the disponer or the acquirer ; not in the disponer , because by his will , which is sufficient to relinquish or quite it , he hath remitted it ; and therefore , that power must be in the purchaser , unless he reject it : this is the more evident , that positive law and custom , which requireth delivery or possession , resteth in symbolical or imaginary possession , as by delivery ofearth and stone , for land of a penny for annualrent , and in some cases requireth no possession , so the fisk acquireth real right without possession ; and the right oflegacies , and others from the dead , are transmitted without possession . . but for utilities sake , not only the romans , but almost all nations require some kind of possession , to accomplish real rights , that thereby the will of the owner may sensibly touch the thing disponed , and thereby be more manifest and sure , so the law saith , traditionibus & usucapionibus , non nudis pact is dominia 〈◊〉 transferuntur , with which our custom accordeth . it useth here to be debated , whether possession it self be sufficient to accomplish dispositions ; or if there must be tradition , or delivery of that possession , by the disponer to the acquirer , the forecited law seems to require tradition ; or at least usucapion , or prescription , which doubtless are the most proper ways to accomplish dispositions ; yet utiliter and equivalenter possession , lawfully attained by vertue of the disposition , although not delivered by the disponer , will be sufficient , as if the disponer were not in possession himself , and so cannot deliver it , yet the acquirer may recover it from the detainer , or the acquirer might have been in possession before , by any other title , as by custody , conduction , &c. in which case , none require delivery ; yea , it is more questionable , whether the possession would not consumate the disposition , though unlawfully attained , as if the disponer not being in possession , the acquirer attained the possession from a third party , vi aut clam , though he might be oblieged to restore that possession to the third party ; yet whether it would not exclude a posteriour disposition , though more legal possession ; it is a question as probable in the affirmative , as in the negative . it remaineth then that possession is the accomplishment of the disposition of real rights , so that not the first disposition , but the first possession , by vertue thereof preferreth . this possession is not alike in all cases , for in some real , in others symbolical , possession is requisite , which cannot be supplied by real possesson it self , as in propertie of lands or annualrents by infeftment , wherein the disposition and natural possession makes no real right without seasine , july . . bennet contra turnbul . novem. . . mitchel contra wright . possession is requisite , not only to the conveyance of the property of moveable goods , but also of liferent-rights , tacks and rentals , servitudes , pledges ; which tacks , though they be truely personal rights of location , and constitute only as real rights by statute , yet intimation will not transmit them ; but there is necessity of possession : and though liferents be more properly real rights , because constitute by infeftment ; yet seing a liferenter cannot infeft another as a fiar can , assignation or disposition is sufficient , but it must be cled with possession : but reversions , though they be accounted as real rights by statute , require no possession for transmitting them , but an assignation duely registrate , according to the act of par. . is sufficient as a publick intimation . in moveables , possession is of such efficacy , that it doth not only consumate the disposition thereof , but thereupon the disposition is presumed without any necessity to prove the same , which was found sufficient to inctruct the property of a ship from possession , without vendition in write , july . . captain hamilloun contra the master of the ship stetine . and the property of money was inferred , from having the key of the chist in which the money was found sealed , unless a contrary probation were adduced , june . . tailzior contra rankine . and so a creditor having poynded goods from his debitor was preferred thereunto to a third party , who offered to prove these goods to be his own proper goods , bred upon his own ground , and set a grassing to that debitor , the poynder instructing that the goods were milked , wrought , and the off-spring thereof enjoyed by the debitor for two years , without any possession by the other party , during that space , which so far presumed his right , that the lords admitted not the contrary probation , nevem . . . turnbul of symontoun contra ker of cavers . the like upon two years possession , june . . brown contra hunterstoun . but restitution of a horse was not excluded , because the possessour offered to prove he bought him from one who then had him in possession , in respect the pursuer then offered to prove that immediatly before he had set the horse in hyre for a journey to that person who sold him , novem. . . william forsyth stabler contra hugh kilpatrick : so that it will not be sufficient to any claiming right to moveable goods , against the lawful possessor to , alledge he had a good title to these goods , and possession of them , but he must condescend , quo modo desiit possidere , by spuilzie , stealth , &c. or that he gave them only in grassing and custody , and continued to use acts ofproperty ; the reason whereof is , because in the commerce of moveables , write useth not to be adhibite , and it would be an unseparable labour , if the acquirer thereof behoved to be instructed by all the preceeding acquirers ; as if one should instruct that he bought or bred such goods some years agoe , the present possessor behoved either to instruct a progress of them , through all the hands they passed from the first owner , or lose them , which being destructive to commerce , custom hath introduced this way , that possession being present and lawful , presumethproperty without further probation , unless the pursuer condescend upon a clear probable way of the goods passing from him , not by alienation , as if they were spuilzied , stolen , strayed , &c. feb , . . scot of gorrenberry contra eliot . in which case , the lybel was only found relevant to be proven by the defenders oath , that he had not bought or acquired the goods , bona fide ; or that the goods were in a defuncts possession the time of his death , february . . semple contra givan ; in which case a defuncts goods were restored , albeit they were long possessed after by his wife , and impignorate by her , and her second husband , without confirmation , the children of the defunct husband , recovered the same from the acquirer . the passing from the proprietar must be so evidently instructed , that there may no probability remain of their being recovered , and thereafter alienat : upon this ground it was , that sir john scot , pursuing sir john fletcher , for a book delivered to him , the lords found the lybel not relevant , unless it were condescended , quo modo , the pursuer delivered the same , viz. by loan , and would not put the defender to prove gifted , but presumed his title , unless the contrary were proven by oath or witnesses , jan. . . and in a process for jewels , at the instance of john ramsay contra james wilson , who had them from mr. robert byres ; the lords found , that the presumptive title of the defender and his author was elided upon the contrary presumption , that jewels of such value , could not be bought , bona fide , seing the seller was neither merchant nor jeweller , nor the jewels fit for his proper use , and because it was offered to be proven , he took them at his own hand out of the pursuers possession to whom they were impignorat by write , by the proprietar , who immediatly went out of the kingdom . the most ordinary and important conveyances are of lands and annualrents , which pass by infeftment , for perfecting whereof , there must not only be a disposition , but also a resignation in the hands of the superiour , and new infeftment granted by him to the acquirer thereupon , or by confirmation , or for obedience upon appryzing or adjudication : for disposition of lands to be holden of the granter , do not transmit the granters right , because he continues superiour in the direct dominion , but it becomes an original right , constituting a new subaltern infeftment . resignation is either in favours of the superiour himself , for consolidating of the property with the superiority ; and therefore , is called resignation , ad perpetuam remanentiam : or it is a resignation in the superiours hands , in favours of the resigner himself , or infavours of an acquirer ; and therefore , is called resignation , in favorem . the first of these is no transmission , but an extinction of the fee , and hath been spoken to in that title . the second is not properly a transmission , because it passeth not from , but returneth to the resigner ; yet ordinarly under diverse considerations , as when he resigns from himself and such heirs , in favours of himself and other heirs , or when he resigns a ward holding , that it may be returned blench , or few ; for the right understanding of resignations , in favorem , consider the solemnities requisite thereto , and the effect which flow from the several steps thereof . for the first , a resignation must proceed upon a disposition , or procuratory of resignation , having in it the effects of a disposition , which must be in write , for the instrument of resignation being but the assertion of a nottar , will not be sufficient alone , without an adminicle in write , and though resignation propriis manibus , can have no procuratory yet the disposition whereupon it proceeds , must be shown . the second step in resignation , is the act of resignation it self , which necessarly must be by way of instrument of a nottar , expressing the warrand of it , viz. the disposition if it be done by the resigner , propriis manibus , or the procuratory if it be done by a procurator , and that conform thereto , the resigner or procurator compeared personally before the superiour or his commissioners , having special warrand to receive resignations , and that the resignation was made in the hands of the superiour by staff and bastoun , delivered by the resigner or his procurator to the superiour , as the token or symbol of the thing resigned , and that the same was accepted and received by the superiour , or his commissioners , by taking the said symbol in their hands , for new infeftment , to be given to the acquirer ; and though the resignation useth to be made by the vassal , or his procurator on their knees , and so is exprest in the instrument , either generally or specially with all humility , and that the superiour or his commissioner , use to deliver the staff as the symbol of the fee to the acquirer , which is also exprest in the instrument ; yet these are not essential , but that without the being or expressing of the instrument will be valid . the last step of this transmission by resignation , is the superiour or his commissioners , giving new infeftment to the acquirer , the nature and requisites of which infeftment , hath been exprest before in the title infeftments . the solemnities of resignation are so effectual and necessar , that the omission of any of them annulleth the resignation ; and therefore , renunciation without a formal resignation , though it may be sufficient against the renuncer , yet it is not sufficient to take away infeftment , renunced against singular successors : nor can it constitute any real right in the person of the acquirer , unless he had , aliunde , another right standing in his person , in which case , the renunciation might exclude the renuncer , or his heirs , to quarrel that right , hope alienation , hamiltoun contra mcadam : the reason thereof is , because , jura eodem modo destituuntur quo constituuntur ; and therefore , as infeftments cannot be constitute without an instrument of seasine , so they cannot be destitute without an instrument of resignation , or at least another instrument of seasine , with the superiours confirmation , or upon his charter for obedience , so that renunciation being personal , operats nothing , except in the case of wodsets , which are extinguished by a renunciation registrate by the act of parliament , . but even wodsets cannot be transmitted without resignation . . but where it is said that the resignation must be by the vassal or his procurator , this question ariseth , if the assignation be made by him who is not truely vassal , but with consent of the true vassal , quid juris , craig , lib. . dieg . . shows , that in his time this question was not clearly determined , nor is he positive in it , but this far , if the resigner had no title , no consent could be sufficient : yet if he had a colourable title , the consent of the true vassal might validate it : if the true vassal be consenter to the procuratory of resignation , either expresly bearing , that the disponer , with consent , &c. constitute his procurators : or if he be consenter to the disposition , by being exprest in the entry thereof , which is holden as extensive to the whole disposition , and so as repeated in the same , will be as valide , as if the consenter himself had granted the disposition , or procuratory for the act of the disponer , though more express and amplified , is no more but his consent , and so the other consenting , doth the same materially , which he would do if he were disponer , formally , but if his consent be adhibite after the resignation is made , it is meerly personal , and cannot have influence on the resignation , which was before it ; or if he but permit or give license to the disponer , or which is alike , if he consent , that the disponer dispone in so far as may concern the disponers right , these will not be sufficient warrand for the resignation , but if he give warrand or consent to the resignation , it is sufficient ; neither is there neces sity to distinguish , whether the disponer have a colourable title or not , se ing it is the consent of the true vassal and the resignation as flowing from , and warranted by that consent , which transmitteth the right ; and therefore , an infeftment of an annualrent , granted by a person not infeft , was found valide , because a consenter thereto was infeft , and so it did exclude a valide right flowing from that consenter to a singular successor thereafter , viz. a tack , decem. . . jean stirling contra tennents . . resignation how necessar soever to transmit an infeftment , yet because the procuratory and instrument of resignation may be lost ; therefore , the vassal possessing fourty years , by vertue of an infeftment , mentioning such a resignation , the same will be valide without the production of the procuratory , or instrument of resignation , which therefore is presumed , thence presumptione juris , par. . cap. . . as to the effect of resignation , there is no doubt , but when the same is truely made , and infeftment follows conform , the resigner is fully divested , and the acquirer is fully invested , and if there be conditions or provisiions , whether bearing express clauses irritant , that the acquirers infeftment shall be null , and the disponers infeftment shall revive , or he have regress , how far these are effectual , till by resignation or judicial process , the same be recovered , is more fully cleared before , title infeftments . it is no less evident , that before resignation be made the disposition or procuratory , operats nothing as to the real right , which notwithstanding remains fully in the disponer , though he be personally oblieged to perfect it , albeit there be no such express obliegement in the disposition ; yet by the nature thereof , the disponer is oblieged to infeft himself , if he be not infeft , and to infeft the acquirer , hope alienations , william gladstanes contra laird of mckerstoun : yea , the disposition of property being accomplished , carrysall real right of the land , or bonds for granting real right , in favour of the disponer , or his authors , neither assigned nor mentioned in the disposition , july . . craigy wallace contra john chalmers . yea , a liferent carryeth the reversion in the disponers person , as to the liferenters liferent use , that ther eupon he might redeem a wodset : so likeways a disposition of lands immediatly before a term , not expressing an entry , nor assignation to the rent , was found to exclude the disponer therefrom , though infeftment followed not , till after the term , spots . mails and duties , andrew caldwal contra robert stark . and generally , it carrys mails and duties , as including virtually an assignation thereto , july . . inter eosdem : and though the disposition , or procuratory , cannot constitute a real right , yet it doth sufficiently exclude the disponer or his heirs , from troubling the acquirers possession thereupon . . the main question then is , what is the effect of a resignation , when done and accepted by the superiour , and no infeftment following thereon , where , in that case , the right standeth , whether in the disponer , acquirer , or superiour , and whether the resigner be fully thereby denuded , or if he may not grant a second resignation , whereupon the first infeftment being recovered , will be effectual : this is very learnedly debated by craig in the forementioned place , where he sheweth , that the common opinion was , that the second resignation , with the first seasine will be preferred , though the lords had decided otherways , in the case of a citizen of perth , who making a second resignation in favours of his son , though after the first resignation by the space of twenty years ; yet craig approveth the old opinion concerning the resigner , never to befully divested , till the acquirer were invested ; this is clear , that by the resignation , the fee falls in non-entry ' and is in the superiours hands , and while the resigner resigning in his own favours , bereceived , or the resignation past from : or otherways , the acquirer be infeft , the superiour hath the non-entry duties of the lands resigned , if the infeftment be not delayed , through his own fault . it is also clear , that by the superiours acceptance of the resignation , in 〈◊〉 , there is upon him a personal obligation to infeft that person in whose favours the resignation was made ; and therefore , though the resigner dieuninfeft , his heir by a single service , hath right to that asother personal rights , and thereupon may compel the superiour to infeft him ; yea , as craig observeth in the fore-cited place , the lords upon supplication , without citation , will grant letters summarly upon sight of the instrument of resignation , and warrand therefore , to charge the superiour to infeft the party in whose favour it was made , who may not receive another resignation , or nfeft an other party , or else his obliegement may make him lyable to the obtainer of the first resignation , pro 〈◊〉 & inter esse , if he be not in mora , in doing diligence to get his new infeftment expede , recenter ; but the real right will be carryed by the first infeftment , though upona posterior resignation ; and so posterior decisions go along with craigs opinion , not only in the case of the first publick infeftment , upona second resignation , but which is much more , after a resignation , made a base infeftment , flowing thereafter from the resigner , and being but a short time before the publick infeftment , upon the resignation , yet was preferred thereto , as dury observes , but expresses not the parties , july . . as to the contrair decision observed by craig , it saith nothing , seing the first infeftment upon the last resignation , was in favours of the resigners son , and so inter 〈◊〉 〈◊〉 , was fraudulent , which would not hold , so if that son had been a stranger , acquiring bona fide , for a cause onerous , so then the resignation , in 〈◊〉 , doth not denude the resigner of the real right , but is incompleat till infeftment follow ; and therefore , a personal renunciation of him in whose favour it was , will fully evacuat the resignation , and make the resigners infeftment as intire as at first , which could not be without a new infeftment , if the resigner had been divested , as in the case of a resignation ad remanentiam , the superiours simple renunciation or discharge thereof , could not revive the vassalsprior infeftment , but he behoved to be infeft , de 〈◊〉 , and though after the resignation , till it be past from , or infeftment follow , the lands be in non-entry , it will not conclude that the resigner is denuded , and the fee is in the superiour , more then other non-entries , which give not the superiour the property , but a casuality of the fee. in what case dispositions of moveables or lands , are holden to be simulate or fraudulent , hath been shown before , title reparation ( upon circumvention or fraud ) wherein retention of possession in moveables is a main ground for presuming simulation , especially in gifts of escheat ; yet if the disposition of moveables bear expresly to take effect after the disponers death , retention of possession will not annul it , neither will it be esteemed as a legacy , or donatio mortis causa , if death be the term , and not the consideration of it , and it was not found ptejudged by the disponers universal legacy , march . . traquair contra traquair . . so much for conventional conveyances of real rights ; judicial conveyances of real rights , are competent , not by the nature of the right , which cannot be alienate without consent of the owner , and in the case of infeftments , holden of the superiour , without his consent , who is not oblieged to receive any to be his vassal , but the heirs and successors of the first vassal , provided in the first investiture ; and though the investiture bear also , the vassals heirs and assigneys , yet the superiour cannot thereupon be compelled directly to receive a singular successor , assigneys being only meaned such assigneys to whom the dispositions should be assigned before infeftment thereon , as was found in the case of recognition , lady carnagy contra cranburn . february . . but law hath introduced in favours of creditors , judicial conveyances , requiring no consent , but authority of law , which hath also its foundation in natural equity , by which , as obligations are effectual for exaction of what is thereby due : so is there were no positive law norcustom , the creditor might exact , either what is due in specie , or the equivalent ; and therefore , reprysals betwixt nations not governed by one common authority , are lawful : and by the custom of nations , extended not only against the party injurer , who is oblieged to repair , but against all the subjects of his soveraign , if he do not cause reparation to be made . the judicial transmission of moveables , is by poynding , which being a legal execution , we shall leave it to that place . arrestment and the action for making for the coming , do also transmit moveables ; but is rather proper to personal rights , and so is competent against the havers of moveables , by reason of that personal obligation of restitution , which is upon the haver to the owner , beside his own property . of old , alienations of lands for money , were very rare in scotland , or the contracting of considerable debts , for the nobility and gentry did then live in a plain and sober way , contenting themselves with that which their own estates did afford : and there was then known no legal execution for debt , against lands or heretable rights , but only against moveables , by the brieff of distress or poynding ; by which , not only the moveables of the debitor were poynded for his debt ; but all the moveables upon his lands belonging to his tennents , as appeareth from act . par. . bearing this title , that the poor tennents shall pay no further then their terms mail for their lords debt , by the brieff of distress , which is correctory of the former custom , whereby the goods and cattel of the inhabitants of the ground were distrenzied for their lords debts , though their mails extended not to the avail of the debt , and that not only for real debts affecting the ground by infeftments of annualrent , feu-duties , or casualities of superiority , or other debita fundi , for which the moveables of the tennents and possessors , may yet be poynded for the lords debt , not exceeding their terms mail , which is ordinarly in their hand , or if payed , may be allowed in the next term , but for the heritors personal debt ; for by the act , the debitors moveables in that , or any other barony or shire , are appointed to be poynded for satisfying of the debt ; but debita fundi , can only reach the moveables of the barony or tenement affected therewith , and though that this act , by its tenor , would yet extend to poynding of tennents moveables for their masters personal debt , custom hath restricted it only to real debts , and it is intirely in desuetude , as to personal debts , which cannot burden tennents , but upon arrestment , in so far as they are then debitors to their masters . before this statute in the year . there is no mention in our law or customes , of appryzing or adjudication : but appryzing was thereby introduced in this manner , that where the debitor has not moveable goods but lands , the sheriff shall cause sell the lands to the avail of the debt , and pay the creditor , which shall be redeemable by the debitor within seven years , and if he cannot find a buyer , he shall appryze the debitors lands by thirteen persons of the best and worthiest in the 〈◊〉 , least suspect to either party , and assign to the creditors lands to the avail of the sum , and the superiour shall receive the creditor , or any othe buyer , for a years rent , as the land is set for the time ; or otherways shall take the land to himself , and undergo the debt . according to this act , appryzings did proceed by sheriffs and baihes , who for satisfying of debts , liquidat by decreets , issued precepts for denuncing such lands to be appryzed upon fifteen days warning , conform to the act of parliament , which denunciation was publickly read upon the ground of the land , before witnesses , and a copy thereof left fixed thereupon , and also at the mercat cross of the head burgh of the jurisdiction , where the lands ly , and to the debitor whose lands were to be appryzed , expressing the creditor , sum , day and place of appryzing , that all parties interested might appear , persons of inquest and witnesses were also summond to the same dyet ; and ordinarly the place was upon the ground of the lands , that the value and worth thereof might the more clearly appear , where , after discussing of the appryzers claim , the hability of the persons of inquest , and witnesses , so much land was appryzed and adjudged as was worth the sum , the years rent to the superiour , and expenses of infeftments ; and if the lands were burdened with any former annualrents , whereby a proportion of land could not be appryzed , free of burden ; there was appryzed an annualrent forth of the lands , effeirand to the sums , and expenses foresaid , and redeemable in the same manner ; which was sustained by the meaning and intent of the statute , though by the words of it , appryzing of lands was only mentioned , it was ever extended to all heretable rights ; thus it continued till the lords of session , upon exceptions against the sheriff , upon his interest , relation , or enimity , or upon the lying of lands in diverse jurisdictions , for preventing of expenses by many appryzings , where the lands in one jurisdiction sufficed not , did grant letters of appryzing under the signet , direct not to the ordinar sheriffs , but to sherifts in that part , which being frequent , did come to run in course to messengers , as sheriffs in that part , &c. and thereby the appryzer , in respect the letters had a blank for inserting the messengers name , did choise the messenger , who did denunce all lands and other heretable rights , which the appryzer pretended to belong to his debitor : and in respect the letters bore dispensation of the place , did apprize , at edinhurgh , all that the appryzer clamed , in satisfaction of the debt , without knowledge or consideration of the value of the lands , or others appryzed , or proportion to the sums appryzed for , and thereupon was infeft in the whole , and payed to the superiour a composition for a years rent of the whole , which was a considerable accession to the debitors debt , and behoved to be payed by him , and by the saids appryzings , the appryzer might , and oftentimes did enter in possession of the whole lands , without being countable for the rents thereof , of what quantity soever : by this abuse , the intent of that excellent statute for appryzings , was enervat , and the same turned in a meer formality , until the par. . cap. . which began to correct that exorbitant abuse , and declared appryzers countable for their intromissions , in so far as exceeded their annualrents , to be imputed in their principal sums , pro tanto , and that they being thereby satisfied of their sums , principal and annual , composition to the superiour , and expenses of appryzing and infeftments , that thereby the appryzing should expyre , ipso facto , and it is also declared , that if the lands appryzed be not worth of free rent , effeirand to the annualrent of the said sums , that before redemption he shall be satisfied of the superplus . by which act it is declared , that minors may redeem lands appryzed from them at any time , within their age of twenty five years compleat , yet so , that after the first seven year , the appryzer shall have the benefit of the whole mails and duties till he be redeemed , which hath always been extended to lands appryzed from persons being major , if a minor succeed , during the legal ; and if a person being major succeed to him who was minor , he hath the benefit of reversion of seven year , in so far as was not run in the minors life , and if less remain then a year , at the minors death , the major hath a full year to redeem after the minors death ; and by the act . of the abrogat parliament , . appryzers were declared countable for the rents of appryzed lands intrometted with by them , during all the time of the legal , whether competent to minors or others . and because of another great abuse , by the debording of appryzings from the first institution . that the first appryzer , appryzing the whole estate , the other creditors had no more but the legal reversion , which did ordinarly expyre , the subsequent creditors not being able to raise money to redeem the anterior appryzer , whereby the first appryzer carried the whole estate , and excluded all the rest , and being ashamed to take so great a legal advantage , and sometimes not daring to make use of it , did ordinarly compone with the debitor , his appearand heir , or some confident to their behove , whereby the debitors heir recovered his whole estate , by satisfying one creditor , and excluding all the rest ; therefore the par. . by their act . anent debitor and creditor , declared that all appryzings deduced since the first of january . or to be deduced in time coming , within a year after the first appryzing , which became effectual by infeftment or charge , should come in pari passu , as if one appryzing had been led for all the sums , and thereby the legal was extended to ten year ; and it is declared , that whensoever the appearand heir or any to his behove , shall acquire right to any expyred appryzing , that the same shall be redeemed from them within the space of ten year , after their acquiry , by posterior appryzers , upon payment of what they truly payed , in so far as shall not be satisfied by their intromission . but neither did this statute cure the abuse of appryzings ; and therefore the act of par. of the . of septem . . upon consideration of debording of appryzings from the first design , and of the great inconveniencies arising thereby for the bringing in of all appryzers within year and day , did give way to break the credit and ruine the interest of the most considerable heretors in the kingdom , that creditors being thereby invited , under the hazard of being excluded to appryze within a year ; and thereby one wilful , malicious , or necessitous creditor apprizing , all the rest followed , and intirely brook their credit , unless they would pay all their debt in one day ; therefore , the parliament , did in place of appryzings , ordain adjudications , to proceed before the lords of session , for adjudging the lands and other heretable rights of debitors , effeirand to the sums appryzed for , and a fifth part more in place of the penaltiies and sheriff-fee , and allowed witnesses for either party , for clearing of the rental and rate of the lands , in the several places where they ly , and appointed the adjudger to have present possession of the lands adjudged , not being accountable for his intromission during the legal , redeemable only within five year , whereby the creditor had easie accress for his satisfaction , without all hazard or account , which had been the ground of many tedious processes of count and reckoning for the intromission of former appryzers , and wherein the adjudgers is to have the consent of his debitor , both as to right and possession , and delivery of the evidents ; and it is declared , that if the debitor do not instruct , and deliver a good right , and consent , as said is , that the creditor might adjudge all the debitors estate in the same manner , and to the same effect , as is appointed by the act of par. . between debitor and creditor . we shall not here speak of adjudications and appryzings , as they are legal executions , and of the order and solemnities requisite to them , as such ; but only as they are conveyances of real rights , wherein we shall consider ; first , upon what ground appryzings proceed . secondly , against what rights they are competent . thirdly , what is the effect of the process , or decreet of appryzing , without further diligence . fourthly , what is the effect thereof , when further diligence is used . fifthly , what is the effect thereof when infeftment is obtained . and lastly , in what manner it ceaseth and becometh extinct . . as to the first , appryzing is an appretiation and judicial vendition of the thing appryzed , from the debitor to the creditor ; and as in all venditions , there must be merx and pretium , or the price in numerat money ; for if the mutual consist in any thing else , it is not sale but exchange ; therefore the ground of appryzing must be numerate and current money , and if originally it be not so , it must be liquidat before appryzing can proceed ; neither can it proceed but upon a decreet establishing the debt by registration , or otherways in the person of the appryzer active , and of the debitor passive ; yet an assigney intimating before the cedents death , may appryze summarly without action , establishing the debt in his person , as hath been shown , title assignations . neither could appryzing proceed upon heretable bonds , unless the same had been made moveable , by requisition or charge ; and therefore , was found null , proceeding upon an heretable sum , bearing a clause of annualrent , though payable without requisition upon a single charge of six days , seing that charge was not given july . . john cranstoun contra laird of east-nisbit . hope obligations , alexander mowat contra the creditors of john richardson . john cranstoun contra laird of lugtoun . but posterior decisions have run in the contrair , that if the sum were payable without requisition , appryzing might proceed thereupon without a charge , as well as poynding or arrestment , july . . edgar and johnstoun contra findlason . july . . clackmannan contra barroun . in which case , the principal sum was payable at a precise term , and no mention of any term or time thereafter , and yet was appryzed for , after that term , january . . john seatoun contra james loch . but if infeftment have followed , or requisition be requisite , the sum must be made moveable , before appryzing : but other sums , though by destination heretable , yet having summar execution by the parties consent , appryzing is sustained thereupon . . as to the second point against what rights appryzings extend ; first , though letters of appryzings contain power to poynd moveables , which must be searched for ; yet that which is properly called appryzing , extends to no moveables , but only to heretable rights , as lands , annualrents , liferents , tacks , reversions , heretable bonds , july . . earl of errel contra buckie ; and therefore , it extends not to the mails and duties of the appryzed lands , before the appryzing , feb. . . saltcoats contra home . the like , though the question was against the debitor himself , and that the style of the appyzing bore , all right that the debitor had to the lands to be appryzed , march . . mackre of balmagie contra livingstoun . and where an annualrent is appryzed , it extends not to the bygone annualrents , which are moveable ; but these being moveable , are arrestable , neither doth it extend to the duties after denunciation , and before appryzing , feb. . . harper contra cockburn and johnstoun . appryzing is extended to all heretable rights , though they were not provided to assigneys , but to the debitor and his heirs only , or failing , such heirs to return ; and therefore , publick utility and the favour of the creditor makes it more effectual then any voluntar disposition or assignation could be , so an appryzing was found to carry a right , though not granted to assigneys , hope appryzing , john brown contra fssilmont of buckie . and a husband granting right to his wife , but with provision that she should renounce it , if he required it in his own life allennerly , a creditor of his appryzing that land , and requiring the wife to renunce , was found to have right thereto , spots . appryzing , lady huttonhal contra cranstoun of moristoun . an appryzing of the ground right and property of lands , and all other rights , &c. carryeth not only the property , but all other real right , or obliegements for granting thereof , and though no infeftment follow , the appryzing so conceived will carry any right , which requireth not infeftment , as if it had been specially denunced and appryzed , june . . james rule contra alexander home . . to come now to the third point concerning the efficacy of the process and decreet of appryzing , without further diligence ; and first , it hath the effect of an assignation , without necessity of intimation , and carries all rights which require not infeftments to transmit them , as liferents , reversions , tacks and so an appryzing was found to carry the legal of an anterior appryzing , though the denunciation , whereupon it proceeded , was anterior to the denunciation whereupon the first appryzing proceeded , and thereby at the time of the denunciation of the second appryzing , neither was the first appryzing , in being neither the denunciation thereof , and so could not be denunced or appryzed ; yet the denunciation of the ground-right , and all right competent , or that might be competent to the debitor , was found to carry the reversion of the said first appryzing , novem. . . doctor kincaid contra james halyburtoun . . though second appryzings carry the legal reversions of anterior appryzings without infeftment : yet infeftment is frequently taken thereupon , that the posterior appryzer may have interest thereby , to reduce or quarrel the anterior appryzings , and to pursue for mails and duties , or removing , if the anterior appryzer should forbear . . the second effect of appryzing is , that the debitor is thereby so far divested , that after his death , infeftment may be taken by the appryzer , without transfering or infefting the debitors heir , novemb. . . lag contra his tennents . so likewise the heir of the appryzer dying before allowance , or infeftment upon supplication obtained allowance from the lords , and letters to charge the superiour to receive him , spots . hic , alexander frazer supplicant . the like was granted by the appryzers assigney , march . . collace contra lord elphingstoun . yea , an appryzer did obtain allowance and varrand to charge the heir of the superiour , contained in the first allowance , being dead , decem. . . laird of corsbie contra kilsyth . from this ground it is , that an appryzing excludes prior assignations , granted by the debitor , to the mails and duties of the lands appryzed , as to terms after the appryzing , hope assignations , george meldrum contra laird of anstruther . . and when an appryzing was led before an husbands death , it excluded his wife from a terce , hope appryzings , james chrightoun contra relict of john cranstoun : where he doth also observe it to exclude a subsequent ward , in respect the superiour gave a charter upon the appryzing , in his vassals life , though no seasine followed thereupon , ibidem , george hamiltoun contra tennents of newburgh . and albeit dury observes , that in the case betwixt the lord fleming and the lord balmerino , dispute the . of march . it was not decided , but superceeded in hopes of agreement , whether a superiour could be compelled to receive the minor himself till his majority , it seems the superiour ought to receive the appryzer upon his legal diligence , but prejudice of the ward , during the minority of his former vassal , though he would not receive the minor , yet he would be necessitate to receive the appryzer , and his heirs whatsomever , though the lands were tailzied , and to return to the superiour himself . . the third effect of appryzing is , that being a legal diligence , it renders the thing appryzed litigious , not only from the date of the appryzing , but from the date of the denunciation : so that no voluntary deed of the debitor , after the denunciation can prejudge the appryzer , if he be not in mora . thus a tack set by the debitor after denunciation , was found null , spots . appryzing , peter blackburn contra walter balvaird . yet where the appryzer was negligent , and obtained not infeftment , nor did diligence ; therefore , for some years , a tack set by a debitor before the appryzing , but having its entry after the appryzing , was preferred thereto , july . . wallace contra harvie . yea , no infeftment or diligence being used upon an appryzing , for many years , an arrestment thereafter was preferred to the mails and duties of the landsappryzed , feb. . . saltcoats contra brown. but custom since hath always preferred appryzings to arrestments , although there were no infeftment or diligence upon the appryzing , because it is a legal assignation , and needs no intimation , unless the appryzer had relinquished his right ; and therefore , though that case of saltcoats was adduced , an appryzer of an annualrent , was preferred to an arrestment , though the appryzer neither was infeft nor used diligence , for nine years before the arrestment , feb. . . lord justice clerk contra mr. john fairholm . it is said , no voluntary disposition deed of the debitor after the denunciation , will prejudge the appryzing , because if the deed done thereafter be necessary , and that thereunto the debitor was specially oblieged before , and might have been directly compelled ; such , even after denunciation may be preferred , as an annualrent proceeding upon a bond , prior to the denunciation , containing an obliegemement to infeft , in that annualrent , the infeftment thereupon , though after denunciation was preferred , hope appryzing , samuel henderson contra john mcadam . the like of an infeftment , whereof the charter was before denunciation , and the 〈◊〉 before the seasine upon the appryzing , ibid. the like of an infeftment upon resignation ; which resignation preceeded the denunciation ; and though the resignation was at first refused by the superiour , being accepted thereafter , it was preferred , ibid. mr. thomas hope contra mr. thomas hendrison . and so an infeftment upon a disposition for a cause onerous : which disposition was of the same date with the denunciation , and whereupon infeftment followed , before the appryzing was preferred to the appryzing , spots . appryzing , mark hamiltoun contra brown. yea , an infeftment upon a disposition , posterior to an appryzing , was preferred thereto , seing the appryzer did no diligence for six years , ibid. hamiltoun contra mcculloch . . in the competition of appryzings being both legal diligences ; the first appyzer doing sufficient diligence , is preferred as the first appryzer , last infeft , but having 〈◊〉 charged , was preferred , though the superiour did voluntarly infeft a posterior appryzer , jan. last , . ferguson contra mckenzie . yea , a posterior appryzing was preferred to a prior , where the debitor by collusion suspended the letters , and denunciation of the one and not of the other , whereby the other appryzed first . nov. . . borthwick contra clerk. the like where the prior proceeded upon a citation of the party upon sixty days , as being out of the countrey , and the debitor was brought to the countrey of purpose , that a posterior denunciation upon fifteen days by another appryzer , might give him the first appryzing : and yet the other was preferred , nicol. tennents of cockburnspeth contra sir hendry wardlaw , and upon the late competition betwixt the laird of clerkintoun pursuing a reduction of corsbies appryzing , as collusive in so far as after his author sir william dick had charged the superiour , with the first charge upon the letters of four forms , they gave infeftment to corsbie before the dayes of the first charge were expyred , the lords reduced the infeftment , but assoilzied him from bygones , as possessing bona fide , and seing the pursuer suffered him to possesse without pursuit , till the legal was expyred , they found that corsbie , as now the second appryzer might redeem , december . . inter eosdem . . the fourth effect of an appryzing is , that being led by the superiour against his vassal , it needs no infeftment , but consolidats the property with the superiority , and is preferable to all posterior appryzings , whatever be their diligence , spots . appryzing , stevinson contra laird of craigmiller . but in other cases , appryzing without further diligence , doth not transmit the real right , though it may exclude assignations to mails and duties , or arrestments upon personal debts , it is no sufficient title for mails and duties , against any other having any real title , march . . andrew scot contra tennents of whitesland . . as to the fourth point concerning the efficacy of appryzings , whereupon diligenceis used before infeftment obtained . they have no effect to remove tennents , though the superiour was charged , and the letters found orderly proceeded against him , and though only proponed by the tennents , and no party pretending right , march . . lockhart contra his tennents . but the appryzing with diligence hath this effect ; first , it is a sufficient title for mails and duties against the possessors . secondly , it excludes all posterior infeftments or diligences by the collusion , or voluntary deed of the superiour , or any other . thirdly , it is effectual to compel the superiour to receive , and infeft the appryzer upon payment to him of a years rent , which was formerly by letters of four forms , till the statute , . cap. . whereby one charge upon twenty one days is sufficient , all which proceeds upon the allowance of the lords , upon the back of the appryzing : and albeit the act is not revived in the late parliament , yet the lords continue the custome . . this allowance of appryzings is appointed to be registrate , and not the whole appryzing , par. . cap. . yet neither the want of the allowance , nor the want of registration thereof , annulleth the appryzing , till the last act of par. . cap. . making the registration of the allowance necessary : otherways posterior appryzings , first allowed , are to be preferred , unless without allowance the appryzer hath obtained infeftment , before the others diligence , upon which grounds , the lords upon supplication , without citation , ordained an appryzing to be allowed , and registrate long after sixty days , and after the debitors death , seing it would be thereby preferable to all other rights , after the registration thereof , june . . . there are many debates which arise concerning the entry betwixt appryzers and superiours , as whether the superiour can be compelled to receive the appryzer , without instructing that the vassal from whom he hath appryzed , was infeft , or specially charged , which hath been several times decided negative , fifty years since . but now of a long time , charges against superiours for infefting appryzers , salvo jure ejuslibet & suo , have been still sustained , because it is unusual and difficult for the appryzer to get his debitors evidents , unless it were the extract of his seasine , and the superiours receiving him upon obedience , cannot prejudge him ; and therefore , the superiour was ordained to receive the appryzer , though himself was in possession , by vertue of a right , march . . black contra pitmedden . the like , whatever right the superiour might pretend , march . . margaret scot contra gilbert eliot . . the quantity of the years rent by the act of par. . cap. . is exprest to be a years mail , as the land is set for the time , wherein consideration is had of such real burdens affecting the land , as are taken one with the superiours consent : but in the case of a liferent so taken on , the years rent was modified full , but delayed to be payed till the liferenters death , july . . branden baird contra consideration is also had of feus set by the debitor before the appryzing , which while warranted by law , the superiour will only get a years feu-duty for receiving the appryzer in the superiority , feb. . . munktoun contra lord yester . spots . appryzing , walter cowan contra master of elphingstoun . but the superiour will not be oblieged to receive the appryzer for a years rent of the money appryzed for , but of the lands appryzed , march . . mr. simeon ramsay contra laird of corstoun . march . . thomas peterson contra walter murray . yet in this last case , the lords modified the rent far within the worth of the lands , for the rent being worth . merks , was modified to . merks . a superiour must not only receive the first appryzer , but all others who charge , though one was infeft before any other charged , march . . ferguson contra couper . and if more charge , he must accept a years rent for all , providing that he who should be preferred , refound to the rest the proportions payed by them to the superiour , july . . lord borthwick and walter hay contra haistoun and smith . . if the superiour be contumacious , and will not enter the appryzer upon diligence , craig lib. . dieg . . prescrives , that the superiour may be thrice required , and if he refuse , letters may be obtained from the lords to charge his superiour , to receive the appryzer , supplying his place , and so from superiour to superiour , till he come to the king , who refuseth none , by which the superiour would loose the casualities of his superiority , during his life , as is ordinary in the entry of heirs upon retour . . as to the next point , infeftment following upon appryzing doth constitute a real right , but under reversion of seven years , being before the act debitor and creditor , par. . cap. . or since of ten years , which is counted from the date of the appryzing , and not from the allowance , or infeftment , november . . laird of limpitlaw contra mr. james aikenhead . . yet it remains but as a security , which the appryzer may renunce , or make use of other securities till he be satisfied , march . . lord blantyre , contra parochioners of bothwel . the like , though after the legal was expyred , decem. . . scarlet contra paterson . but here the appryzer had attained no possession . . remains the last point proposed , how appryzings become extinct , and are taken off ; and that is first , when the appryzing is declared null , thorow defect of any essential solemnity . secondly , when the sum whereupon it is deduced , is not due , as when the half thereof was payed , hope appryzing , samuel blackburn contra james lamb. james lamb contra hepburn of smeatoun . or being deduced for a terms rent , which was not due till after the appryzing ; albeit it was an assigney who appryzed , seing it was to the behove of the cedent , it was found relevan to reduce the appryzing in totum , june . . scot of burnfoot contra sir john falconer and james edmonston . jan. . . francis irving contra contra laird of drum. the like , where a part of the sum was poinded for , and yet the appryzing was for the whole , nicol qui potiores in pignore , john steven contra maxwels : or where the denunciation was before the term of payment , though the appryzing was after , nov. . . mr. robert craig contra wilson . and an appryzing for two sums , instead thereof as to one of which sums the decreet was loosed & turnedin a lybel , before the appryzing was deduced : yet the appryzers intromission thereby before citation , was not found to be repealed , as being consumed bonafide , upon a colourable title , nov. . . boid and graham contra malloch . and an appryzing was reduced , because one of the sums appryzed for , was registrat , a non suo judice , july . . moreis contra orrock of balram . in which case the lords would have sustained the appryzing as a security for the true sums resting , if the appryzer would have past by the termly failzie ; for the lords do frequently supply defects in appryzings or adjudications , in so far as they may stand as securities of true debt , and real expence , especially when the question is betwixt the debitor and the appryzer , but not in competition with more formal rights , and they are most strict against appryzings or adjudications , when they are insisted upon , as expired , or for penalties , sheriff-fees , and the annualrents thereof ; and therefore , a posterior appryzing being solemn and formal , according to the custome then in use , was preferred to a prior not being so formal , july . . lady lucia hamiltoun contra boyd of pitcon . and likeways , an appryzing being led for penalties and termly failzies , was reduced as to these , because a part of the sum was not due at the date of the appryzing , though it was deduced at the instance of an assigney : but if it were proven to the cedents behove , it was also found reducible , quo ad , the accumulation of the annualrents , and making them and penalties principal sums . but seing the appryzer declared it redeemable , though the legal reversion was expyred , it was sustained as a security of the first principal sum , and current annualrents thereof , jan. . . francis lrving contra laird of drum. and appryzing was sustained upon a bond , bearing a long term of payment , with a clause irritant , that if two terms annualrent run together unpayed , the whole principal and annual should be payable , without abiding the first term , though there was no declarator of the irritancy , it not being penal , but taking away the favour of the creditor to the debitor , by delay of the term , june . . scot of burn-foot contra falconer and edmistoun . . albeit the lords do not ordinarly modifie penalties after appryzing ; yet if they be exorbitant , they do modifie the same , and all termly failzies , as they did in the said case of orrock of balram and francis irvin . . appryzing was sustained upon a sum , payable without requisition , albeit there was no charge preceeding the appryzing , july . . mr. john thomson contra mcgutrig . the like , though the bond bore annualrent before . seing there was no infeftment thereupon , or requisition therein , jan. . . farquhar of finian contra robert stuart . . and an appryzing was sustained , though the lands appryzed were not filled up in the letters of appryzing , or special charge , nor in the executions , because the messenger who execute was judge in the appryzing , which relating the denunciation of the lands particularly , and charging the appearand heir to enter thereto in special , was found a more solemn execution , then any execution a-part , jan. . . john brown contra nicol. . an appryzing was sustained without producing the letters of appryzing , being in anno . but the instructions of the debt was found necessary to be produced , being within prescription , february . . james kenuay contra thomas crawford : yea , an appryzing was sustained upon a bond , payable upon requisition , though the appryzing made no mention of the requisition , the instrument of requisition being produced . . and though the dispensation to appryze , was neither at edinburgh , nor the head burgh of the shire , but a place upon the open fields , and upon a count of a great rain , the messenger did not appryze that day , but adjurned the court of appryzing til the next day , july . . the heirs mr. thomas lundie contra the earl of southesk . . and an appryzing of the ground-right of lands , and all other right belonging to his debititor , the superiour being charged thereupon , was preferred to a posteriour appryzer , who appryzed particularly an annualrent out of the lands , which was the only right of the common debitor , november . . mr. john fairholm contra rentoun and the countess of levin . . appryzings are elided by satisfaction or payment , without necessity of renunciation , resignation , or reduction , as in the case of other infeftment , july . . lord lovat contra frazer : the reason is , because appryzing being but a legal diligence , for security of the sum , which ceassing , it falleth without other solemnities ; and the dobitors own infeftment stands valid , without renovation ; which , with the infeftment upon the appryzing , stood but as a paralel right for security , so that all returned , adpristinum statum ; and amongst the rest , the casualities of the superiority , if they were taken off by the appryzing ; and therefore , an heir not entering , but being chargeed , if he satisfie and redeem the appryzing , he will be in non-entry till he be received of new . . appryzings are excluded and qualified with the back-bonds and obliegements of the appryzer , as in personal rights , which are valid against singular successors , as a back-bond , that an apprysing should not be prejudicial to anothers parties right , was found relevant against the appryzers singular successor , the kings donatar of the appryzers forefaulture , july . . the earl of southesk contra marquess of huntly . the last and most ordinary exstintcion of appryzing , is by intromission with the mails and duties of the appryzed land over and above the annualrent , for these are imputed in the principal sum , by the statute , par. . cap. . which is also extended to minors having the priviledge after the ordinary legal of seven year : but it was not provided for in the said statute , that the appryzer should be countable for his intromission thereafter , which is therefore provided for , par. . cap. . which , though it was neglected , and not revived , par. . yet the lords sustained the same , as now in custom twenty years and more , feb. . . john ross contra mckenzie . but the tenor of the said first statute ; being , that the quantities of the mails and duties shall extend to as much as will satisfie the whole principal sum , and annualrents thereof , composition to the superiour , and annualrent thereof and expenses , in deducing the appryzing : in that case the appryzing is declared to expyre , ipso facto ; so that if any part thereof remain , and the debitor be so negligent , as not to use an order , and count and reckoning within the legal , but suffer it to expire , the appryzing will stand valid , and carry the right of the whole lands , and will not be extinct in so far as satisfied proportionally , hope confirmation , doctor kincaid contra halyburtoun , which was so found , where a part of the sum was satisfied , by payment , novem. . . mr. robert craig contra wilson . but if the remainer be very small , the lords may be the more strict in modifying pryces , and if that be not sufficient , a small remainder will not take away the right , de minimis non curat lex . intromission is not only extended to the rents and profits of the appryzed lands , but to the pryce of any part thereof , sold by the appryzer within the legal , jan. . . mckenzie contra ross. and ansappryzing was also found extinct by the intromission of him , to whom the appryzer granted back-bond , declaring the appryzing to be to his behove , and that against a singular successor , who thereafter was infeft upon the appryzers resignation , july . . kennedy contra cunninghame and wallace . yea , an appryzing was found excluded , as being satisfied by the debitor , and retired by him , with a blank assignation thereto , lying by him at his death , though his son thereafter filled up his name therein , which was instructed by the sons oath and witnesses , ex officio , feb. . . creditors of the lord gray contra the lord gray . but an appryzing was not found extinct by intromission , where the appryzer payed to his debitor , the superplus of the rent , above his annualrent , before the leading of any other appryzing ; yet where any order of redemption is used before the expyrie of the legal , the appryzing was found extinct by intromission , after the course of the legal , july . . john edgar contra patrick milu . the like was found in respect of an order , used by a second appryzer , and was sustained , though the first appryzer had acquired right to an order of redemption by a third appryzer , used against the second appryzer , which was not found to hinder the second appryzer , to declare the first appryzing satisfied by intromission during the legal or the order , but prejudice to the third appryzer , or to the first appryzer , having right from the third appryzer to redeem the lands from the second appryzer , by satisfaction of the sums due to him , july . . gordoun of seatoun contra watson . yea , an appryzing being both against the principal and cautioners estates , an order of redemption used by the principal debitor was found to keep the appryzing unexpyred , not only as to his own estate , but as to the cautioners estate , february . . lady torwoed-head contra florence gardner . . but the appryzer hath it in his option , whether he will enter in possession of the mails and duties , or will uplift more thereof then his annualrent ; yet if a posteriour appryzer insist for possession , the first must either possess , do diligence , and be countable , or suffer him to possess , february . . colqhoun contra laird of balvie . but if the appryzer possess , he must do diligence for the rent of that land he possest , and be countable , not only for what he intrometted with but for what he might have intrometted with ; and if the lands were tennent-stead at his entry , he must count accordingly at that rate , though thereafter given over and waste , if he neither set nor laboured them himself , nor intimat to the debitor so to do , feb. . . brownhill contra cawder . the like found , that the appryzer was countable according to the rental , allowing all defalcations , jan. . . james seaton contra antony roswal . but where the appryzer entered in possession of the lands waste , he was not found countable , according as he set them thereafter , for the first year of his proper labourage , seing by the season without his fault , he lost thereby , decem. . . john dickson contra young. but an appryzer was found countable for the rental of all the tennents of a small tenement , lying contigue , having taken decreet against all the tennents , and yet refusing to count for some particular rooms , without showing any hinderance to uplift from these , which other appryzers calling to account , could not know that he had forborn these , but nothing was determined as to the common debitors own labourage , jan. . . schaw of grimmat contra john mure writer . yet where the appryzer was disturbed in his possession by the debitor , via facti , or via juris , he was not found countable by a rental , but what he recovered till he attained to peaceable possession , jan. . . burnet contra burnet of barns . . the act of par. . cap. . hath lengthened the legal of appryzings , and hath brought in all who appryze , within a year of the first effectual appryzing , pari passu . by this act these , these alterations are introduced as to appryzings : first , whereas before the first appryzer being infeft or doing diligence , had only access to the whole appryzed lands till he were satisfied : now the lords are impowered to limit the possession during the legal , as they shall see cause , the appryzer getting his annualrent or security therefore ; and therefore , an appryzer pursuing for removing , and mails and duties , his pursuit was only sustained , for so much of the appryzed land as she should choose , the rent whereof would be equivalent to eight per cent . of the sums appryzed for , he being countable for the superplus , more then his annualrent and publick burdens , the defenders house and mains being always excepted , seing there was sufficient of other rents , june . . nicolson contra sir william murray . but the power granted to the lords to restrict appryzers , is only personal and peculiar to the debitor , and not to the posterior appryzers , july . . murray contra earl of southesk and others . secondly , all appryzings led since the first of january . before the first effectual compryzing , obtaining infeftment , or charging the superiour to receive , or within a year after the same , or to be led thereafter upon any persosonal debts , come in pari passu , as if they all had been contained in one compryzing , the other appryzers paying to the first effectual compryzer , the expenses of his compryzing , and infeftment thereupon , but the year is not to counted from the infeftment or charge , by which the appryzing becomes effectual , but from the date of the decreet of appryzing , july . . laird of balfour contra mr. william dowglas . but this extends not to appryzings or annualrents , or other debita fundi ; and accordingly it was decided by the lords , that those other appryzers behoved to pay the whole composition to the superiour , feb. . . robert graham contra john ross. yet these appryzings that were prior to the act , were not found to come in pari passu , from the dates of the appryzings , albeit the act bear , that they should come in as if they were in one appryzing , but only from the date of the act of parliament . and as to what the first appryzer had possessed , bona fide , before the act of his intromission , exceeded his annualrent , the same should be imputed to the expenses of the compryzings and composition , and in payment of the sums appryzed for , pro tanto , jan. . . graham of blaitwood contra browns . but an appryzing led before january . though infeftment or charge were used thereon , after jan. . was found to exclude all appryzers after jan. . whose infeftment or charge were posterior to the infeftment or charge upon the appryzing , led before jan. . and that the said posterior appryzing did not come in pari passu , with that led before jan. . because the act of parliament relates nothing to appryzings deduced before jan. . decemb. . . sir henry home contra creditors of kello . and albeit the first effectual appryzing was satisfied , and so extinct ; yet it did stand valid as to the second appryzing , within year and day ; but a third appryzing was not found thereby to come in pari passu , with the second appryzing , as being within year and day thereof , as if the second appryzing became the first appryzer , decemb. . . street contra earl of northesk and james deans . feb. . . tennents of mortoun contra earl of queensberry . and where the first appryzer 〈◊〉 but a part of the lands appryzed , the second appryzer not infeft , was preferred to the third appryzer infeft , as to the remanent rents , because the second appryzer needed no infeftment , but the infeftment upon the first appryzing was sufficient for all the appryzings led within the year of the first , decemb. . . doctor ramsay and william hay contra alexander seatoun . there is also an exception from this clause , by another act of parliament , . cap. . session . that second apprysers shall not be prejudged if they did acquire right to a former apprysing , redeemed and satisfied by them , for their own security , before the said act , albeit led since jan. . which first comprysing shall remain in the same case , as apprysings were formerly ; it was so decided , without necessity to alledge that right was taken to the first apprysing , to shun the expyring of the legal , or any other necessary cause , decemb. . . veatch of dawick contra alexander williamson . thirdly , the extent of the legal is altered from seven years to ten years ; so that where the legal was not 〈◊〉 the time of the act , three years were allowed to redeem them , from whitsonday . which terminated at whitsonday , . whereanent it being questioned , whether intromission during these three years , should satisfie apprysings , which being deduced since , jan. . were expyred according to the law then standing , and disponed to others , there being no mention of that point in the said act , the lords decided affirmative , january . . clappertoun contra laird of torfonce . . fourthly , the benefit of redemption is competent to creditors against the appearand heirs of their debitors , acquiring right to expyred compryzings , which was extended to appearand heirs , even during his fathers life , june . . burnet contra naesmith , or any person to their behove , acquiring right to appryzings within ten years after the acquirers right , for such sums only as they payed for acquiring thereof , and they were found extinct by the appearand heirs intromission by exception , which was so far extended , that it reached an appryzing assigned to an appearand heir , though the assignation was before this statute , seing the infeftment which made the appearand heirs right real and effectual , was after ; and though the appryzing was redeemable when acquired , but expired in the person of the appearand heir , july . . sir george maxwel contra maxwel of kirkconnel . but the appearand heir getting right to the appryzing , gratis , it was not found to accress to the creditors , but only to be redeemable within ten years after his right , for the sum whereupon the appryzing proceeded , feb. . . intereosdem . an appryzing acquired by the husband of an appearand heir , found not redeemable by what be payed , unless it were proven that it was acquired by the wifes means , or upon her account , june . . william richardson con . palmer . feb. . . richardson contra colline laumond and skeen of halyards . jan. . . andrew mcdowgal contra sir hendrie guthrie and his spouse . but this ten years reversion was not found competent to the debitor himself , to redeem from his appearand heir , decem. . . sir michael naesmith contra james naesmith . but a second brother acquiring an appryzing upon easie terms , when his elder brother was out of the countrey , was not found redeemable by this act , not being esteemed as appearand heir , alioqui successurus , feb. . . john mclurg contra john gordoun . and an appryzing coming to the person of the appearand heir of the principal debitor , found satisfiable by the sums payable therefore , by the appearand heir , summarly without reduction , feb. . . sir david dumbar of baldoon contra david dick. the like found by exception or reply , where the appryzing was to the behove of the debirors eldest son , july . . laird of balfour contra william douglas . the like , where the apprizing acquired by the appearand heir , was found satisfied by intromission equivalent to what was payed for the appryzing : the said intromission being either within the ten years , or after the intenting a summons of declarator , offering to pay what remained after count and reckoning , it was found to prorogate the ten years reversion , without any other order , june . . mr. john kincaid contra gordoun of abergeldie . . apprysings deduced against appearand heirs , specially charged to enter heir , are not redeemable by the heir of the party charged to enter heir who was never infeft , but by the heir of the defunct , for whose debt the apprysiing was deduced , who died last vest before the apprysing , february . . january . . mr. john johnstoun contra sir charles erskine . . minors have a special priviledge , that the legal reversions of apprysings , run not against them during their minority ; and how far this is extended to majors succeeding to minors , vide tit. . amongst priviledge of minors , vide , what hath been said of apprysing , tit. . section . and . . apprysing while it is redeemable , is but a legal diligence for security ; and the appryser may relinquish the same , though he be in possession , and may do any other diligence for recovering his debt ; but if he continue to possess after the apprysing becomes irredeemable , the debt is thereby satisfied and extinct , which was so found , albeit the apprysing proved ineffectual as to a part of the lands apprysed , the remnant being equivalent to the debt apprysed for , and it was not found , that a proportional part of the sums apprysed for , correspondent to the lands that were evicted , should remain due to the appryser , june . . laird of leys contra forbess of blacktoun . the form and manner of procedure in apprysings will come in amongst legal executions of which hereafter . . adjudication is remedium extraordinarium , introduced by custom , where apprysing could have no place , as when the debt to be satisfied is not a liquidat sum or goods ordinarly liquidable , but is a disposition of lands , containing expresly or virtually , an obligation to infeft the acquirer , or some other : or an obligation consisting in some fact to be performed : or otherways , where the debitors heir renunces to be heir , whereby there is no party from whom the lands can be apprysed ; therefore , haereditas jacens is adjudged . this remeid is introduced by the lords , who having ample power to administrate justice in all cases , and to make orders for that effect , do supplie the defect of the law , or ancient customs , by such new remeids , as such new occurring cases do require , amongst which adjudication is a prime one , which craig testifieth to have been unknown to our predicessours , and being but recent in his time , and few decisions thereupon , the nature and effect of it was little known , but is now by course of time further illustrate . adjudication hath place in two cases ; the first and most ordinary is , when the heir recounces to be heir , in which case adjudication is competent , whether the debt to be satisfied be liquidate or not . the other is , when the obliegement to be satisfied consisteth in facto , and relateth to the disposition of particular things ; which disposition or obliegement , not being fulfilled by the debitor or disponer , though all ordinary diligence be done , then adjudication taketh place to make the same effectual . as to the first case , adjudication upon the appearand heirs renuncing to be heir , proceedeth upon these ways , if he be pursued as lawfully charged to enter heir , for satisfying of his predicessors debt or obliegement , he may renunce to be heir ( if he have not meddled ) either in the process against him , as charged to enter heir in the first instance , or some time thereafter , by suspension or reduction , if he renunce in the first instance , when the debt is not yet instructed and established , as when it proceeds not upon a clear bond or write , but abides probation by witnesses , or otherways then before the process of adjudication , there must be a process and sentence against the heir renuncing cognitionis causa , for establishing and proving the debt ; in which , because there is necessity in all processes , to have a defender , the appearand heir renuncing , is only called to supply that place , cognitionis causa , but without any effect against him , but only contra haereditatem jacentem . but if the appearand heir renunce in the second instance , after decreet obtained against him ; or in the first instance , when the ground and title of the pursuite instructs the debt , then there needs no other decreet , cognitionis causa ; but the pursuer protesting for adjudication , the same will be admitted summarly . adjudication it self is a most simple and summar process , whereby the heir renuncing , and the debt being established , as said is , the whole heretage renunced , orbenefite , whereto the heir might succeed , is adjudged by the lords to the pursuer for satisfaction of the defuncts obliegement , wherein the heir renuncing is again called to sustain the part of a defender , which is only for forms sake , for he can propone nothing , and one single summonds is sufficient without continuation ; because it is accessory to a prior decreet , as dury observes , but expresseth not the parties , feb. . . and all is adjudged , periculo potentis , whatsoever the pursuer pleaseth to lybel , alledging that it might have belonged to the heir entring : yea , though any party having interest , should compear and instruct that he hath the only right , and the defunct was fully denuded ; it would be incompetent , hoc loco , spots . adjudication , cairncorss contra laird of drumlanrig . . the reason is , because the adjudication is but periculo petentis , and can give no right , unless the defuncts right , competent to the heir renuncing be instructed . neither can the adjudger , who is a stranger to the debitors right be put to dispute the same , in obtaining the adjudication ; yet the lords admitted a singular successor to propone upon his infeftment , that the defunct was denuded and adjudged , not the property , but all right of reversion , or other right competent to the appearand heir , july . . alexander livingstoun and sornbeg contra heirs of line of the lord forrester . in this case the matter was notour to many of the lords , that the lord forrester having no sons , did contract his estate with one of his daughters , to leiutenent general baities son , who was thereupon publickly infeft . but the reason why appryzings and adjudications have past so much at random is , because the appryzings have deboarded from their ancient form , by an inquest , knowing the lands , which therefore would never have appryzed lands , but where the debitor was commonly repute heretor , or heretable possessor : but when appryzings came to be deduced by sheriffs in that part , constitute by the lords by dispensation at edinburgh , where persons were made the inquest , who knew nothing of the lands , then all became to be appryzed which was claimed , and though the appryzer would not pay a years rent for entering him in lands , where he had no probability of right in his debitor ; the greatest inconvenience was as to the lands holden of the king , it was little addition of expences , to passe one infeftment for all ; and other superiours , getting a years rent , salvo jure , they were not suffered to contravert . but now adjudications being in place of apppryzings , and passing upon citation before the lords , it is not like they will adjudge lands where the debitors are not , at least repute heretable possessors or liferenters ; for now the lords are in place of the inquest : and albeit as they suffer decreets in absence , to pass periculo petentis ; so they will suffer adjudication to pass of all that is lybelled ; but if any other shall appear , and make it appear that they and their predicessors have been holden and repute heretable possessors , and that there was no right repute to be in the debitor , the lords might readily superceed to adjudge , till some evidence were given of the interest of the debitor , seasines having been now registrat , since the year . and likewise reversions , though adjudicationes , of these might more easily pass then , because no infeftment would follow : but where lands are adjudged , and infeftments follow , there arises thence grounds of pleas and pursuits , especially for reduction and improbation , upon which all the heretors of the lands contained in the infeftments , would be oblieged to produce their rights , and open their charter chests , to parties having no pretence to their estates . the adjudication was sustained of all lands generally , without condescendence , decemb. . . corser contra dury . but where the defender appeared not , or contraverted it not in the adjudication , process for mails and duties of the lands adjudged , was sustained in the same libel , ibidem . and in adjudication of a reversion , the declarator for redeeming the same , was sustained in the same lybel , july . . dury contra kinross . . in adjudication all is competent to be adjudged , which should have befallen the heir entering , as lands , annualrents , reversions , tacks , liferents , and all heretable bonds ; yea , not only these rights themselves , but the bygone rents and duties thereof , preceeding the adjudication , and after the defuncts death , may be adjudged and pursued against the possessors and intrometters in that same process , because these are competent to the heir renuncing , and there is no other way to attain them , as in the case of appryzings , which are not extended to bygones , seing these may be arrested , and pursued as moveables belonging to the debitor , as was found in the said case , corser contra dury . decemb. . . and likewise , heirship moveables , for the same reason are competent in adjudications , but not against other moveables of the defunct , which may be confirmed , spotswood caption , isobel hagie contra her daughters . novemb. . . campbel contra john baxter : and so it is not competent against an heritable bond , made moveable by a charge , jan. . . couper contra williamson and bogmiln . yet if an heritable sum should become moveable after the defuncts death , as by an order of redemption , it would be competent by adjudication , seing it could be reached no other way . in adjudications it is only competent to creditors to appear , having like process of adjudication depending , for all will be brought in pari passu , who are ready before sentence , with the first pursuer , hope adjudications , stuart contra sturt . . if the adjudication be of lands or annualrents , requiring infeftment , the superiour will be compelled to receive the adjudger , though a stranger his vassal , though he do not instruct his authors right , salvo jure cujustibet & suo , feb. . . elizabeth ramsay contra ker. but as to the years duty , payable by the adjudger to the superiour , for their entry , though the lords thought it equitable , that it should take place , as well in adjudications as appryzings , the reason being alike in both , yet found not sufficient ground , whereupon to decern it , seing the said years rent is exprest in the act of parliament , . cap. . and the composition of the superiour , for receiving appryzers , parliament . cap. . yet in the next act of the same parliament , anent adjudications , there is no mention of composition to the superiour , though the act relateth to the former act , anent appryzings ; and therefore , they thought it not competent to them to extend the said composition , ad pares casus , where it did so much appear , that the parliament of purpose had omitted it ; yet in the said case , greirson contra closburn upon the . of july . they did forbear to intimate their decision , and desired the parties to agree . and no composition was found due by an adjudger , having charged before the late act of parliament , december . . whereby , like compositions are appointed for adjudication , as for appryzing , july . . scot of thirlestain contra lord drumlanrig . in which case , it was found , that the superiour might refuse to enter the adjudger , if he payed his debt ; but that he was to have nothing for composition , if he did so in the same way , as in appryzing , by the old act of par. . cap. . by which that option is given to the superiour . . craig observeth , that it was doubtful in his time , whether there were a legal reversion competent to any renuncing , and afterward returning to redeem adjudications or appryzings , wherein he favoureth the affirmative , but the said statute , par. . cap. . determineth the case , and granteth a legal reversion , in favours of these who have posterior adjudications , within the space of seven years , or ten years since the act of par. betwixt debitor and creditor , which is also competent to any renuncing in their minority , and being restored against the said renunciation ; but it is not competent to any other heir renuncing ; yet if the heir , though major , find that he hath prejudged himself , by renuncing a profitable heritage , he may grant a bond , and thereupon cause within the legal , adjudge and redeem the former adjudications , which , though to his own behove , will be effectual , there being so much equity and favour upon his part , being willing to satisfie the whole debts . . it is clear by the said statute , the lands or heretage of a defunct may be adjudged , the heirs renuncing , not only for satisfaction of the defuncts debt , but of the heirs own proper debt . . adjudications are taken off and extinguished in the same manner as appryzings are , by intrometting with the mails and duties of the lands adjudged , as is clear from the said statute . and though cases be not so frequent in adjudications , as in appryzings ; to clear the other ways of their extinction : yet the reason being the same in both , there is no doubt but the determination will also be the same . . the other manner of adjudications , is for making effectual dispositions or obliegements to infeft , whereupon , when the acquirer hath used all diligence competent in law , against the disponer to fulfil the same , by obtaining decreets and horning registrat thereupon , either against the disponer or his heir , law being there defective , and cannot make the disposition or obliegement effectual ; the lords have allowed adjudications of the lands disponed , whether in fee or liferent , july . . lord johnstoun contra lord carmichael , spots . hic , contra bruce of airth . and thereupon the superiour will be discerned to receive the adjudger , as was found in the case of an obliegement to infeft a woman in liferent , holden of the superiour , wherein she having used horning , the superiour was decerned to receive her , july . . harris and cunningham contra lindsay . feb. . . marion hamiltoun contra mr : william chiefly : the like in the case of an heretable disposition , whereupon the acquirer having obtained decreeet against the disponers heir , for infefting him , and used horning thereupon : the director of the chancelary was decerned to infeft the acquirer , decemb : : : ross contra laird of may. this manner of adjudication is extended no further then to the thing disponed , and hath no reversion : it requires no charge to enter heir , or renunciation ; but the adjudger must instruct his authors right , june . . mr. dowgal contra glenurchie . these adjudications do not come in pari passu , with other adjudications within the year , nor any other with them , july . . campbel of riddoch contra stuart of ardvorlick . decemb. . . lady frazer contra creditors of the lord frazer and lady marr. . by the late act of pavliament , anent adjudications , there are introduced two new forms of adjudications ; the one special of lands effeirand to the sum , and a fifth part more , in case the debitor produce his rights , and put the adjudger in his possession , of his particular lands adjudged : but if he do not , adjudications are to proceed as appryzings did generally of all the debitors lands , or real rights , periculo petentis , redeemable within ten years : these adjudications are come in place of appryzings , especially the general adjudications , which are declared to be in the same condition in all points as appryzings were by the act of par. . cap. . except as to the lengthening of a reversion from seven to ten years : so that what hath been said of appryzings , will have the same effect as to general adjudications ; but special adjudications being equitable and favourable , will not meet with such strictness : this statute hath taken away the greatest reproach upon our law , which for every debt indefinitely appryzed every estate great or smal , which had no excuse , but that the debitor might redeem in seven years : but all debitors being necessitat to appryze within a year , or to have no more then the legal reversion , paying the whole debts , the power of redemption came to be of little effect , few being able to pay all their debt in one day : but now if any debitor complain , that his whole estate is adjudged , and no proportion keeped betwixt the debt and his estate , it is altogether his own fault , seing he might offer a proportional part , and liberat all the rest of his estate ; which part is redeemable also in five years : and though a fifth part be added , it is no more then the ordinary penalty , being an . pounds for a , merks , and . merks for the sheriff-fee ; makes . merks , being the fifth part of a . merks , and which was sustained in the most favourable cases of appryzings from the beginning , and the reversion was for seven years . adjudications being executive decreet , the lords allow them the greatest dispatch ; and to prevent collusion , whereby some debitors might be postponed by debate and probation till the year pass , which would excludethem ; therefore the lords do not suffer co-creditors to stop adjudications , that they might see for their entress , and put the pursuer to abide the course of the roll , unless they produce an entress , upon which the ordinar will hear them immediatly without going to the roll , jan. . . earl of dundonald contra dunlop and his creditors . neither is the superiour suffered to propone defences , jan. . . kinloch of gourdie contra mr. james blair and james strachan . yea , the lords sustained the establishment of the debt in the same lybel with the adjudication , july . . alexander boyd contra boyd of pinkill . but if the debitor himself appear , the cause goes to the roll ; and if there be prior adjudgers , defences proponed against the debt , or adjudication , which are not like to be verified within a year of the first adjudication ; the lords adjudge and reserve these defences contra executionem , by suspension ; in which terms will be granted , because of the reservation ; but there is this advantage , that how long soever the suspension be of expeding , the first decreet being within the year , brings the adjudger in pari passu . title xxv . confiscation , where , of single escheat , liferent-escheat , shipwrack , waith-goods , treasure , forefaulture , bastardy , and last-heir . . the tenor of letters of horning . . the executions of horning must bear the party charged personally , or at his dwelling-house designed . . the execution at the dwelling-house , must bear six knocks at the most patent gate , because the messenger could get no entry . . the knocks must be audible , that these within may hear . : if the messenger get entry , the delivery of a copy to any of the family is sufficient without knocks , and must be so exprest . the days requisite for the charge beyond the water of dee . . the denunciation must be against the party , and at the mercat cross of the jurisdiction where he dwells . . the denunciations must bear three oyesses , or the equivalent . . the execution must bear three blasts of the horn. . the execution must be stamped . . the horning must be registrate , and how . . denunciation after satisfaction hath no effect . . the effect of general letters of horning . . the order and effect of relaxation from the horn. . the single escheat and extent thereof . how far the denunceds debts , or deeds affect his escheat-goods . . gists of escheat , and preference thereof . . gifts of escheat not expressing the particular horning whereon they proceed . . gifts of escheat , though bearing goods to be acquired , extend but to these acquired within a year after the gift . . escheats within regality . . in what cases gifts ofescheat are held simulat . . who must be called in the general declarator . . the titles and tenors of general declarators . . exceptions against general declarators . . special declarators of escheat . . liferent-escheat . . confiscation of treasures , waith , or shipwrack-goods . . forefaulture . . several kinds of treason by statute . . forefaulture confiscats without the burden of the debts or infeftments not confirmed by the king. . how far fews are effectual against forefaulture . . how far tacks of forefault lands are effectual . . forefaulture by arescinded act , was burdened with the debts and deeds of the rebel . . forefaulture , when , and how it may proceed in absence . . how far the person of the rebel gives right to the fisk. the effect offorefaulture of appearand heirs . . in what cases forefaulture dishabilitats . how far the forefaulture of appearand heirs may be extended . explanation of the act of parliament . cap. . importing burdening of forfaultures with the debts and deeds of the rebel . forefaulture is reducible upon any nullity , but only by way of grace . how far forefaulture takes effect without declarator . what children are lawful and what bastards . declarator of bastardy . the effects of bastardy , as to succession . legitimation and effects thereof . how the debts and deeds of the bastard affect his estate . ultimus haeres , and the difference thereof from bastardy . the conveyance and transmission of all kinds of rights from private parties to the fisk , are here comprehended under one common term and title of confiscation : it is not proper in this place to treat of the fisk , or priviledges thereof , or upon the several causes , upon which confiscation followeth ; these being publick rights ; but we shall only consider the several kinds of rights , or things that befal to the fisk from private parties , and how they return to private parties again , by gifts and processes thereupon ; and this is either in reference to moveables , liferents , or the property and stock of heretable rights and others moveables fall to the fisk , either wholly and intire , and that is chiefly by denunciation and rebellion , or by some special statute , the penalty whereof is confiscation of moveables ; such are breach of arrestment , or deforcement wherein , though the private party injured have an interest ; yet in effect the whole is confiscat , and a part belongs to that party , by vertue of the statute thereanent , whereby they are constitute donatars : or otherways some particular moveables befalleth to the fisk ; either by custome , as waith-goods , ship-wrack , &c. or by statute . liferents befal to the fisk by the denunciation of the owner , and remaining unrelaxed year and day , or by such statutes , whose penalty is the loss of the liferent . the stock or property of heretable rights , fall to the fisk by forefaulture , or becoming caduciary ; the confiscation of the whole moveables is called the single-escheat ; and of the liferent , is called the liferent-escheat . we shall only speak of the single-escheat of moveables by denunciation ; having spoken of breach of arrestment and deforcement , title reparation . secondly , of liferent-escheat . thirdly , of escheat of particular goods , as shipwrack , &c. fourthly , of forefaulture . and lastly , of things caduciary , especially by bastardy , and last heir , and of gifts and processes thereupon . escheat , though it be a common term , signifying any confiscation , yet it is restricted to moveables and liferents , and most properly to moveables , so that when it is simply exprest , it is ordinarly taken for single-escheat , or escheat of moveables ; but before we descend thereto , it is fit to consider of the ordinary cause thereof , and of liferent-escheat , viz : horning . horning proceedeth thus , by letters executorial , giving warrand to messengers at arms , to charge any partie in the kings name , to obey what is contained in the letters , under the pain of rebellion ; and if he obey not within the dayes of the charge , giving power to denounce him rebel by publick proclamation , at the mercat crosse of the head bargh of the shire , stewartry , bailliarie of royalty or regalitie within the which the denunced dwells ; and that by publickreading of the letters of horning , and giving three blasts of a horn , for the clear manifestation and notice thereof , from whence it is called horning : and because of the certification , the partie denunced is called rebel , by a term too rough , such persons not being in hostilitie against the king , nor being publick enemies , but only denunced upon causes civill , which they lye under frequently , not through contempt , but inability to satisfie . the english do more properly call this execution out-lawerie , whereby the partie becumes out-law , and hath not a person to stand in judgement active or passive : and if such should be called by us , the denunced , it were smoother , and more suitable then the odious term of rebell . seeing horning is the ground both of single escheat , and liferent escheat : it would be fit to go through the several requisites thereof in order , and the nullities arrysing thereupon . first , the letters of horning must be signet : and therefore though the bill was past , and the matter small , and the parties indigent , a horning not signet was found null . of june . john megill contra . secondly , the executions , or indorsations thereof must bear , that the partie was charged personally , or at his dwelling house , designing the house . and therefore a horning was found null by exception , for not designing thereof , though the partie was designed to be burgess of such a burgh , which might have presumed his dwelling place to be there , july . adam contra baillies of air , yet a horning was sustained , though not designing the dwelling house nominatim ; but by discription of it . thus , the messengers execution did bear , that he charged the partie designed by such lands , at his dwelling house , it being proven , that he then dwelt there , november . . montgomerie contra fergushall . . if the charge be in absence , at the parties dwelling house , the execution must bear the messenger to have craved entrie to give the charge to the partie , or his wife and familie and not getting entrie , six knocks to have been given by the messenger , at the most patent gate , or door thereof , yet this being wanting in the extract , the same was sustained , it being proven by the keeper of the register , and his servant , that when the horning was offered to the register , these words were in it , and by the messenger , and witnesses insert in the execution , that the knocks were used , the intent of the cause being alimentarie and favourable , march . . scot contra scot. but this is not to be drawn in example : for the register of horning is that upon which the people ought to rest , and nothing ommitted to be exprest in the register should be supplied by the principal hornings , messenger , or witnesses : for executions of hornings cannot be proven by witnesses , and consequently no matterial point thereof , . knocking at the door audiblie is necessary , without which , executions might be clandestine , and never come to the parties knowledge . and therefore the messenger must express this as truely done , wherein he runs the hazard of being a forger , if the executions be improven , that either the knocks were not given or were given fraudulently , that these within might not hear , as if the gate had been but struck with ones hand , a piece of earth , or stick , which could not reach theirears that were within , for the affixing of a coppie may be more easily evaded : seeing the partie may send of purpose to take the coppie off , being none of the witnesses in in the execution , albeit sometimes , even the witnesses carrie away the coppie , and the messenger may imagine that his executions were true , when he said he left a coppie affixed , because it was affixed when he began to move from the gate ; yet if he saw it carried away , his executions would be found false , and he would not escape punishment . a horning was also sustained , though it bore neither personally , nor at the parties dwelling house , seeing it bore a coppie to have been given , which necessarily imported to have been personally apprehended , july . . stewart contra hannai . . thirdly , the executions must bear , that the messenger gave a coppie of the letters to the partie charged personally , or in his absence , affixed it upon the most patent door of his dwelling house : and therefore a horning was found null , because it bore not delivery of a coppie , but only of a ticket bearing the tenor of the letters , hope horning monteith contra kirkland . but if the messenger get enterance into the house of the partie charged , and deliver a coppie to the parties wife , or some of his family , there the execution will be sustained though it bear not knocks at the door , or affixing of coppies thereupon , these being only required where entry is not gotten , december . . james somervail contra william staines . . the charge must also be upon . days being beyond the water of die , and six upon this side . par. : cap. . yea , though fewer dayes be in the claus of registration it was not found valid , february . . stewart contra bruce . the contrary was found , december . . philorth contra forbes of asloun , and the lord frazer , jannuary . . laird of meldrum contra tolwhoun . and it was found , that the act . was not to be extended to hornings upon clauses of registration of consent : and that the meaning of the statute was both interpret by the narrative , and subsequent consuetude . nam consuetudo optima legnm interpres . and that the decision anno . hath been upon this consideration , that the charger lived in fyfe , and the debitor in orknay , who could not possible , either come to the creditor and pay , or to the lords and suspend on six days , and so was not contumacious , but free by the act of parliament . cap. . annulling impossible conditions in contracts , whereby their is sufficient ground of reconciliation of these decisions , for it is only contumacy that makes the escheat fall which gave the rise to the act of parliament , to allow days for all beyond the water of die. and though parties consent to lesse time , yet contumacie cannot be inferred , but where the partie could by exact diligence come in time , either to satisfie the partie , or to suspend , which some beyond die might do , if the charger were near , that they might offer him just satisfaction , and if he refused , they might have time to reach edinburgh , and suspend : but in other cases that cannot be , as was evident in the case , in anno . and therefore , consent , in that case , can no more inferr contumacie , then the express consent of parties , that charges and denunciations at the mercat cross of edinburgh , shall be sufficient , which is declared null , par. . cap. . . fourthlie , the executions must bear , that the partie was denunced , conform to the charge , for not obedience thereof : and that either at the mercat cross of the head burgh of the shire where the partie charged dwells , or at the head burgh of the stewartrie , or regalitie , or balliary of royalty , if he dwel within these , par. . cap. . yea , though the write bear , that letters of horning execute at edinburgh , should be sufficient against parties out of the shire , the same is declared null by the said act. when there was no head burgh of the regalitie known , the execution at the head burgh of the shire was sustained , spots . horning , stirling contra auchinleck , and the head burgh of the shire , where the denunceds dwelling lyes locally , is sustained by the act of par. though his dwelling be upon lands by annexation , in another jurisdiction , unless that be commonly known , and in use : therefore , horning was not found null , not being execute at the head burgh of renfrew , the dwelling being upon lands annexed to the principalitie , january . . scot conra dalmahoy . neither , because the denunced dwelt in temple lands within the regalitie of torphichen , unless there were a known head burgh and register there , january . . mr. james scot contra boyd of temple . . fifthly , the execution should bear , that the messenger , at the denunciation did make three oyesses , before he read the letters of horning , that the people might thereby take notice of the intimation , which therefore ought to be with audible voice ; which , though it be not by any particular statute , yet is requisite by antient custom , and should be exprest in the execution of all letters , which require to be published at the mercat crosses : the intent thereof being , that the publication thereof may come to the ears of the countrey , and be carried by common fame , that all parties concerned may look to their interest : and therefore , such publications at mercat crosses , and at the peir of lieth , have by law and custom , as expedients to make them commonly known . . oysses before reading of the letters , and affixing the coppie of the letters upon these publick places : and horning hath this supper-added , that there must be three blasts of the horn after reading of the letters ; but because executions do not always bear . oysses , but generally lawfull publication . the lords did declare upon the february . . that they would sustain no executions of messengers , done in time coming , not bearing three oysses & publick readingof theletters , in a reduction at the instance of gordon of park contra arthur forbes , upon the want of . oysses , which came not to be decyded , because the executions were improven : and an inhibition bearing only , that the messenger did lawfully inhibite , and not bearing three oysses , or the reading of the letters . the lords found the same null , and would not supplient by witnesses , that these were truely done , july . . william stevinson contra james jnnes : but where the executions did bear that the messengers did lawfully publish , and read letters of inhibition , which by inspection of the registers was found to be afrequent style , and not the former style , which was meerly generall , the lords sustained that the three oysses were truly given , junne . . lundie contra trotter . . the execution must also bear , that the messenger did give three blasts with his horn : and yet a horning was not found null , because it bore not expresly the partie to have been denunced , or three blasts to be given , but only generally , that the rebell was denunced by open proclamation , and put to the horn , january . . sr. robert hepburn contra laird of nidderie , and an execution was sustained , though it bore not three blasts , it being proven by the witnesses insert that these blasts were truely given , and the execution bore orderly denunced , march . . drysdale contra sornbeg , and lamingloun . . sixthly , the execution must bear , that the messenger , for more verification , hath affixed his signet , or stamp , and the stamp must appear , if the executions be recent , else it will be null , march , . . comissar of 〈◊〉 contra so the execution of a horning was found null , because it mentioned not the stamping thereof , hope horning home contra pringle of whitebank ; yet the executions weresustained , though they bore not these words , seing they were all written with the messengers own hand , and were subscribed and stamped , as hadingtoun observeth , but expresseth not the partie , february . . . seventhly , horning must not only be execute at the head burgh of the shire where the partie dwells , but must be registrat in the sheriff-clerks register of that shire within . days after denunciation thereupon , otherwayes the same is null , par. . cap. . where the clerk is ordained to give an extract , and registrat it within . hours after recept of the letters : and if he refuse it , the charger may registrat it in the next sheriff books , or in the clerk of register his books , which upon instruments taken of his refusall , is declared sufficient , par. . cap. . wherein the registration is ordained to be judicially , or before a notar , and four famous witnesses , besides the ordainry clerk : but this part of the act is rescinded , and it is declared , that the registration in the sheriffs , baillies , or stewarts books by the clerk thereof , or by the clerk register , and his deputs in the books of council and session shall be sufficient in it self , par. . cap. . and for this effect , there is a general register of hornings , relaxations , inhibition & interdictions keeped at edinburgh , and a particular clerk deput having the charge thereof : but if the partie live within stewartrie , or bailliery of royaltie or regalitie , the horning must be registrate there , in the same manner as other hornings must be registrate in the sheriff books , else it is declared null , par. . cap. . but denunciation against parties who have found securetie to underly the law , and compears not at the day appointed , is declored sufficient , being at the crosse of edinburgh , within six days , though not at the head burgh of the shire , par. . cap. . and likewise , denunciations against parties entring in the place of the criminal court , with more persons then there domestick servants , and procurators are declared valid , though execute only at the mercat crosse of the burgh where the justice court sits for the time , and registrat in the books of adjurnall , par. . cap. . executions of horning was also found null , because execute upon the sabbath day , spots charge , ribbald frenchman contra sr lewes lauder , but were not found null , because registrat after the rebells death , being denunced before december . . laird of lie contra executors of blair . . though the horning be orderly used , yet if the ground , or 〈◊〉 whereupon it proceeded be not due , or taken away before the denunciation , the horning is thereby null , and reduceable , though no suspension of the horning was raised before . but in this the officers of state must be called to prevent collusion , spots escheat , james dowglas contra creditors of wardlaw . so a horning upon lawborrows was found null by exception , because caution in obedience was found before denunciation , november . . smeitoun contra spear ; yea horning was reduced , because before denunciation , the charger had accepted a band in satisfaction of the ground of the horning , which was found probable by the oath of the charger against the donatar , hope horning mushet contra forrester . the like where the charge was suspended before the denunciation , though the reason of suspension militated only against a part of the charge ; hope horning buckie contra earl of erroll : but the rebells oath , or holograph discharges before denunciation , were not respected as presumed collusive , february . . montgomery contra montgomery and lauder . in this case it was found , that reduction of the decreet upon informality , not being upon material justice , did not annul the horning ; neither was horning taken away by compensation , by the like sum due to the partie denunced , equall to that in the horning , not having been actually applyed , by process or contract before the denunciation ; nor was any warrand required for using the execution , though for a partie living in england , and done against a daughter and her husband : but the having the principal band , was found sufficient warrand for registration of it , and execution thereupon ; and the denunciation against the husband was not taken off , by dissolution of the marriage before declarator , december . . thomas dalmachoy contra lord almond . . horning though orderily used , proceeding only upon generall letters , by supplication against all and sundry , unlesse it be against a burgh , colledge or communitie , proceeding not upon a citation , and for a special and certain dutie , the denunciation thereupon hath no effect , as to escheat , or liferent , though caption usually follow thereupon , par. : cap. . which act doth declare such executions null : and therefore , such a horning was not found sufficient to debarr a partie , as not having personam standi in judicio january . . blair of glascun contra blair of baleid , much lesse can these general letters make escheat to fall , or annualrent be due , yet caption proceedeth upon it , and useth not to be quarrelled . . horning is taken off , and ceaseth by relaxation , which requireth the same solemnities of publication , and registration as hornings do ; as is clear by the forcited acts of parliament thereanent : but it doth only operat to free the rebel relaxed , as to his goods and others , acquired after relaxation , february . . lochart contra mosman , december . . thomas dalmachoy contra lord almond . it is also ordained , that all copies of summonds , and letters delivered by the executer thereof , shall be subscribed by him par. . cap. . i have not observed any exception founded upon this , act , which though it expresseth not a nullitie , yet ought to be a rule to messengers , especially in hornings , and inhibitions , which may prefer any other more orderly diligence . . the effect of horning dulie used , and registrat in manner foresaid , is that thereby the whole moveable goods , and debts of the parties denunced are escheat , and confiscat , and all that he shal acquire thereafter , till he be relaxed ; whereupon the thesaurer used to cause raise letters of intromission , for uptaking of the escheat goods , direct to sheriffs and messengers : and in case they be deforced , or the sheriff not able , or willing to execute the same , lett es will be direct to noblemen , and barrons within the shire , to convocat the leidges in arms , and to make effectuall the former letters immediately , par. . cap. . but this is long in desuetude : this is also an effect of horning , that the partie denunced , hath not personam standi in judicio ; either as pursuer or as defender , yet the lords would not hold him as confest , if he appeared , and were hindred by the other partie , july . . sr. william purves contra sharp of gospetrie . the same will hold in any thing requiring the personal presence of the denunced , as byding by a write , quarrelled of falshood . for clearing the matter of escheats , it will be necessary to show , first , what falls under single escheat . . how farr the same is burdened , or affected with the denunceds debts or deeds , for the first single escheat extends to no heritable right , whether of land annualrent , or heritable band , but itcarries the bygones of all these , preceeding the denunciation : and there after till year and day , july . . halyburton contra stewart , hope horning , sr. hendrie wardlaw contra william dick. what rights are heritable , and what moveable , hathbeen shown before title real rights . so thatall which is there moveable , except moveable bands bearing annualrents , falls in the single escheat , and somethings are moveable , in relation to escheats , which are not moveable in relation to the succession of airs or executors : as tacks not being lyfrent tacks , par. . chap. . it carries also the office of a clerk-ship , hope horning , mr. hendrie kinross contra james drummond : and likewise the jus mariti of a husband , and therewith per consequentiam , the lyfrent right , or other right of the wife , belonging to the husband , jure mariti . spots escheat violet dawling contra william cochran . it carrieth also all casualities befalling to a rebel denunced before the denunciation : as the lifrent escheat of his vassals , felrury . . symson contra the laird of moncur but if the casuality had fallen to the superior , after the superiours own liferent had fallen by his rebellion , year and day , it would be carried with the superiors liferent escheat , february . . clunie contra bishop of dunkell . and if the liferent escheat , or any other casualitie be gifted , the gift makes it moveable , and so to fall under the donatars single escheat , march . francis setwart contra the ladie samuelstoun : and the single escheat of husband carrieth their jus mariti , and in consequence , the liferent of their wives , for though the wifs right be a liferent , which wouldnot fall under single escheat , yet the husbands right jure mariti , is no liferent , for if the wife die before him , his right ceaseth in his own life . tacks also fall under single escheat , unlesse they be life-rent tacks : and assignations to life-rent tacks , and other life-rents have been found to fall under single escheat , because the direct right is incommunicahle ; for no life-renter can put another life-renter in their place , but canonly assign the profits befalling to the life-renter by the life-rent right : so that it is no life-rent in the assigney , but is as the jus mariti in a husband , which is as a legal assignation : likewise , clauses of relief in heritable bands fall under single escheat , because there is no heritable clause adjected to the clause of relief , but assignations to heritable bands makes them not fall to under single escheat , because the creditors right is directly transmitted and stated in the assigneys person . the single escheat of ministers carries the meliorations of their manses , but the escheat of an executor carries no more then what is his own interest , and not the share of the wifes , bairns , creditors , legators , or nearest of kin , which is escheat by their own rebellion only , even though the testament were execute by decreets , at the executors instance against the debitors , december . . mr. arthur gordon contra laird of drum. . as to the other question , how farr the denunceds debts or deeds affect his moveables fallen in escheat , it is clear , that the debt contained in the horning affects the escheat , whether in the hands of the thesaurer , or donatare , par. . cap. . par. . cap. . and likewise all intrometters with escheat , by gift , assignation , or otherways , upon a single sum monds of six days , par. . cap. . secondly , it is clear , that no assignation , disposition , or other deed done by the denunced , after denunciation , not being for fulfilling an anterior obleigment before denunciation , for a cause onerous to a lawful creditor , can affect the moveable goods or debts of the denunced : but when the denunciation is upon a criminal cause , the escheat takes not only effect from the denunciation , but from the committing of the fact : therefore a donatar of escheat recovered a sum due to the rebel , though assigned before the fact , and payed before process , seing intimation was not before the criminal fact , hope , chalmers and gordoun contra gordoun . thirdly , these debts or deeds of the denunced , do not simplie affect the escheat goods , unlesse they be consumat , or lawful diligence done before the up-taking of the escheat goods , by the thesaurer or donatar ; yea , before general declarator , for that being the intimation of the donatars gift , it renders it to him to be a compleat valid right , after which no creditor not having a real right , or legal diligence before , can have any access , unless the donatar , by back-band to the thesaurer , be otherwise obleiged : and therefore a donatar having obtained general declarator , was preferred to a lawful creditor arresting after declarator , february . . anderson contra gordon . but the question remains , how far lawful creditors , whose debt is before the denunciation , or criminal fact , using diligence thereafter , but before declarator , or obtaining assignations intimat , or dispositions cled with possession before declarator , may thereby effect the escheat goods ? for answer thereunto , though in rigore juris , the goods and debts of the denunced fall to the fisk , as they are the time of the denunciation , or criminal fact : and the declarator , according to the nature of all declarators , doth not constitute the fisks right , but declares the same to have been from the denunciation , or criminal fact ( albeit as an assignation , it doth constitute the donatars right ; therefore the real right passing to the fisk without possession , or at least the priviledge of the fisk might in the full extent thereof , exclude all posterior diligences or deeds : yet such hath been the royal benignitie of our kings , and there favour to lawful creditors , that in this they accompted id solum nostrum quod debitis deductis est nostrum . for which the thesaurer hath been accustomed to prefer creditors , giving gifts of escheat to them before others , and in taking back-bands from them , in favors of other creditors ; yea by long custom , creditors , whose debts were anterior to the denunciation , or criminal fact , doing diligence before declarator , are preferable to the donatar , spots escheat , james nisbit contra james fullarton , february . . pilmure contra geggie . in this case the escheat belonged to a lord of regality , and the arrestment was laid on before the gift of escheat : but where the donatars gift was in payment of his own debt , he was preferred to an arrester , arresting the rebels goods after the gift , but before declarator , february . . thomson contra laird of murckil , but voluntary deeds of the rebel after rebellion , as assignations not intimat before declarator , for satisfaction of debt due before denunciation , or criminal fact , are not preferred to the donatar , hope assig . sr. james stewart contra alexander wardlaw , john clerk contra william naper , and james cramfoord contra john mcaul . and though an assignation not being intimat before rebellion was preferred to the donatar , yet it was in consequence of a decret of council decerning , that assignation to be made , and so not voluntary : so a donatar was preferred to an assigney , whose assignation bore a cause onerous , and was before declarator , but after rebellion , december . . and february . . conheth contra earlston . decem. . . laird of caprington contra cuninghame , february . . lindsay contra nisbit . where the assignation bore not a cause onerous , yet a lawful creditor obtaining disposition from the partie denunced , cled with possession , was preferred , ibid. johnston of corhead contra johnston . in like manner a disposition made by the rebel for a just debt , before the giftor declarator was preferred to the donatar : here it was not exprest , that the debt was before the rebellion , february . . mosman contra lockhart . where there seems some difference in the decisions , wherein these points seem clearest , . dispositions and delivery of goods , because moveables are more easily transmissible in favours of commerce , and so have always a presumptive title upon possession : so that if the goods be bought in a mercat , there seems no question , or if bought out of mercat from a rebel , getting the price which accresseth to the fisk , unlesse the buyer was in mala fide . and though getting the goods in satisfaction of a debt , before the rebellion , be more questionable then a present exchange of the goods and price , the former decisious favour that also . the lords did lately find , that a rebel selling part of his corns , to provide necessaries for sowing of the ground , the crop whereof fell to the fisk , the bargain was valid . . legal diligence upon arrestment being compleat before declarator , are valid , though after rebellion ; yea the decisions favour even the inheat diligence , if the arrestment was before declarator upon a debt before rebellion . and it was so found , february . . jsobel glen contra john hoome . but voluntary assignations seem not effectnal , if they be not compleat by intimation before rebellion , and though they be , if payment or satisfaction , either in money or renewed bands , innovating the rebells band , be not obtained before rebellion , the donatar was found preferable , but otherwise the creditor , by precept , assignation or otherwise , getting payment of his debt , prior to the rebellion , and obtaining payment , before declarator was found secure against the donatar , february . . william veatch contra executers of ker. but though actual payment were obtained by assignation after declarator , it will not secure the creditor december . . inter eosdem . . the matter of escheat being thus cleared , we come to the gift thereof , and declarator thereupon . a gift first sealed , was preferred to an other , first signed in exchequer , albeit so near in diligence , as coming that same day to the seals , december . . stewart contra nasmith . gifts of escheat are in effect , the assignations thereof by the fisk , whereof the intimation is the declarator . so that a posterior gift , with a prior general declarator is preferable to a prior gift , with a posterior declarator : but where there is yet no declarator , preference is by the first citation , if the same was followed with lawful diligence : and therefore a posterior gift , whereupon citation was prior , but three days was preferred to a prior gift , jan. . . laird of renton contra laird of lambertoun . if there be no citation , or declarator , the donatars possession is sufficient alone , and will , preferr a posterior gift though granted to the rebel himself , being before any diligence upon the prior gift . and if two gifts be produced as enteresses , without any diligence on either , the first gift is preferable . . gifts of escheat , as all other gifts by the king are null , if granted before the casuality fall , as an erection of kirk-lands , in a temporal lordship was found null , because a commendatar stood then in the right , and did not resign or consent : and therefore a posterior erection to that commendatar , upon his own dimission was preferred , february . . sr. robert sinclair contra laird of waderburn . and so a gift of escheat before denunciation was found null , by exception ; because it mentioned no particular horning whereupon it proceeded , though done by the kings own hand at court : and though anterior hornings were produced in the process , and no other donatar , nor officer of state quarrelled the same . november . . weston contra stewart . . gifts of escheat not bearing expresly goods to be acquired , extend no further then to the goods , the denunced had the time of the gift , february . . bruce contra buckie . and though the gift bore expresly , not only the goods the rebel had , but which he should acquire thereafter , during his rebellion : yet the same was only extended to what he had the time of the gift , and what superveened within year and day , june . . john jnglis contra laird of caprinton . it was so decyded , july . . barclay contra barclay . yea the same was extended to no goods acquired after the gift , seing the style thereof bore not what he should acquire , february . . lewis somervail contra mr. william stirling . . escheats of persons living within regality , belongs to the lord or baillie of regality infeft with that priviledge : and therefore gifts by the king , reach not these escheats , but gifts by the lords , or baillie of the regality , which was found to comprehend all moveable goods , and sums belonging to the partie denunced , as well within the regality as without the same , june . . young contra laird of raploch . but these gifts differ from the kings gifts , that they are effectual according to their tenor , both as to goods before and after the gift , and are valid , though granted generally , or though before the casuality fall , if a special gift , after the casuality fell , be not in competition , for the prior limitations of the kings gifts , are only in favours of the king , that he be not prejudged by the default of his officers ; but private parties ought sibi invigilare : and albeit the diligence of creditors be preferred to the donatars , chiefly by the kings benignity : yet the same was sustained against a donatar of escheat , by a lord of regality february . . gilmore contra hagie . . the main difficultie anent gifts , is , when they are simulat , and to the behove of the denunced , which is much cleared by that excellent statute , par. . cap. . declaring it a sufficient evidence of simulation , of any assignation , or gift of escheat , if the rebel himself , his wife , bairns , or near friends , remain in possession of his tack , and goods , to their own uses , and behove ; yet it is not declared , how long their possession must be ; seing the rebel ordinarily , for some time is in possession , till the donatar use diligence : but where the rebel retained possession till his death , a gift though declared was found null by exception , july . . morison contra frendraught , june . . gairdner contra lord gray : yea , it was found simulat , where the rebel possessed , . years , june . . john inglis contra laird of capringtoun , and other circumstances , concurring , or . years by the rebel , was found sufficient , the donatar having consented to several tacks , and wodsets granted by the rebel : and yet the same gift was found valid in part , in so far as concerned heritable rights , acquired by the donatar from the rebel , december . . ballantyn contra murray , four or five years possession of the rebel , were found sufficient to infer simulation , though the donatar was a creditor , and the rebels lands apprysed , seing the appryser possessed not , but the rebel , , and . of january . sr. lawrance oliphant contra sir james drummond , so that the time of possession , sufficient to infer simulation , remaineth in arbitrio judicis . the next ground of the simulation of gifts of escheat , and presuming the same to the rebels behove is , when it is taken in the name of the children in his family , which was found relevant , without mention of the rebels possession , june . . lord borthwicks bairns contra dickson . but the presumption was not found sufficient , that the gift was to the behove of the rebels son : here it was not alleadged , that he was then in his fathers familie , march . . keith contra benholme . the like where the son was not in his fathers family , and was a creditor , and made faith , it was to his own behove at passing the gift , though the partie denunced , did remain in possession , sometime after declarator , december . . jaffray contra jaffray . the third presumption of the simulation of gifts is , when the same is procured , and past by the rebels means which was sustained , though a part was by the donatars means , and a part by the rebels , though the donatar was then a creditor . june . . john inglis contra laird of capringtoun . the like found probable by members of the exchequer , as witnesses , nov. . . earl of kinghorn contra wood. hope cessio bonorum , laird of clunie contra laird of blandine , cant and porterfield contra sir james stewart . the like against an assigney , constitute by the donatar , hope horning , sir georg hamilton contra robert ramsay . simulation , of a gift of life-rent to the rebels behove , was found probable by the rebels oath , and the witnesses insert in the gift , june . . scot contra langtoun . this ground of simulation is found relevant , not only against the donatar , but against a singular succesor , not partaking of the fraud , whose assignation was after the creditors diligence , december . . dowglas contra belshes . and though there was no diligence , the gift being exped blank in the name , and filled up thereafter , in the donatars name ; it was found simulat , even as to him , though obtaining it for his true debt december . . nicol langton contra robison . simulation is not otherwise valid , against singular successors : yet it will not be relevant to exclude the donatar , and prefer another donatar , in so far as concerns the first donatars debt , truly owing to him , though the gift was given at the rebels request , and past at his own charges : so that the exclusiion , by this presumed simulation , was only inferred , as to the profit of the gift , above the donatars own debt , in quantum lucratus est . for that was found no fault in the debitor rebel , to concurr in desire , and moyen to get a gift to his creditor , in so far as concerned that creditors debt , march . . william dowglas contra viscont of air. the like where the rebel concured , in procurring the gift , the donatar having made faith the gift was to his own behove , showing his debt and back-band , december . . mr. georg dickson contra sr. alexander mcculloch . all this must be understood , if the rebel remain unrelaxed , for if unrelaxed , a gift though taken expresly in his name , returneth and accresceth to the fisk , and next donatar , july . earl of annandale contra laird of cockpool : yea , though he was after relaxed before any other gift november . . earl of kinghorn contra wood. june . . lenuox contra turnbul . but if the denunced were relaxed , the time of the gift , as it would be sufficient in his own person expresly , so it is valid in another person , though to his behove , yet it will exclude none of the creditors . these nullities are not only competent to posterior donatars , but also the rebels creditors using diligence . to come now to the declarators of escheat , there are two , the first , general , the next special . . in the action of general declarator , the rebel or his bairns , or 〈◊〉 of kin ( if he be dead ) must be called , hope , cessio bonorum , frazer of tillebodie contra mopherson , but the declarator hath no effect against moveable airship , unless the rebels air were called : as to the other moveables though there uses seldom to be executors , confirmed to defunct rebels , and therefore the wife , and nearest of kin are ordinarily called ; yet where the wife was only called , she being executrix confirmed , it was sustained , nicol , de haereditariis actionibus . contra relict of james forrest . and though summonds of general declarator bear all parties having interest , who must be cited generally , at the mercat cross of the head burgh where the rebels residence is , that is but stilus curiae , and the want of it hinders nothing , june . . massoun contra black. . the title in the general declarator is the gift , and the horning whereupon it proceeds , the extract whereof does as sufficiently prove , as the principal , par. . cap. . the tenor of the general declarator is , that the rebel was duely , and orderly denunced by the horning lybelled , and that thereby the whole moveable goods and gear , &c. became escheat , and belongs to the pursuer , by vertue of his gift : all which is instantly verified by the titles : and therefore if no relevant exception be proponed , decreet is instantly given . . no exception will be here competent against the horning , not being instantly verified , for all others will be reserved to reduction : so was it found , it being alleadged , that the rebel dwelt in another shire then where he was denunced , june . . mr. of ocheltrie contra laird of symonton . yet if the reduction be depending , it may be sustained as prejudicial , and be first discust , december . . dalmahoy contra scot. neither will any exception be sustained against the ground of the horning , as not due , or satisfied , as that it proceeded upon a null band , subscribed only by one notar , january . . durham contra clelland . or that payment was made before denunciation , november . . dowglas contra wardlaw , hope horning escheat , lord dowglas contra lord carmichael . the reason is not only , because the alleagence is not instantly verified , but specially because the kings officers are not called , that they may defend the kings interest , and obviat collusions , upon forged discharges , or otherwise ; for oft-times the donatar hath but a smal interest , in respect of his back-band , and so may readily collude : and therefore , though the defence be instantly verified , it is not received by exception , though it might justly be without multiplication of processes , intimation being made to the thesaurer , and advocat , that they might appear for the kings interest , but if it be a visible nullitie in the horning , or an exception wherein there can be no appearance of collusion : it is sometimes admitted as this exception , that the horning was suspended before denunciation , and was false , was sustained , hope horning sheriff of murray contra exceptions of any partie compearing for their interest , and alleadging assignation , or disposition of the goods , or diligence done , use not to be received in the general declaratar , but reserved to the special , because the general is but an intimation , and so proceeds summarily . . the action of special declarator , though it hath the name of declarator , yet hath little in it declaratory , but it is petitory of the goods specially lybelled in it . there is no necessity to call the rebel , or any representing him , but the haver or intrometter with the escheat goods . the title in this action , is the decreet of general declarator , and there is no necessity to produce the gift or horning , feb. . . creditors of john stewart , of coldinghams , escheat contra a debetor to the rebel , november . . lundie contra lundie where another donatar was admitted for his interest , in the special declarator though he had no general declaratar : nor is any exception competent against the same , or ground thereof , but only by reduction . yet in the competition of others , donatars or creditors having used diligence , or having gotten assignations intimat , or dispositions cled with possession , before general declarator upon debts anterior to the denunciation , or criminal fact , or otherways upon the simulation of the gift , are here competent , as the simulation is competent also against the general declarator , and all exceptions generally or particularlie reserved in the general declarator , are competent in the special : all these exceptions being held forth before in the same title , there is no necessity here , to repeat them . in aspecial declarator of escheat , payment before denunciation was sustained , to be proven by the creditors oath , upon a reduction of the horning , and general declarator repeated by way of defence , february . . william montgomerie contra theodor montgomerie and mr. william lander . in this cause a creditor was not found to have interest , to found upon the donatars back-band given to the thesaurer , without obtaining a second gift . special declarators may be persued any other way , as upon arreistment or particular lybel , for restitution and delivery of the escheat goods . it is also consistaut in the same lybel , with the general declarator : but before the pursuer insist in the other member for the special declarator , he must pursue that member for the general declarator . . liferent-escheat , though it be a penaltie of contumacy and rebellion , and so is properly a confiscation : yet seing it doth not befall only to the fisk but is a common casuality of superiority , and hath been handled in the title , superiority . we shall not here repeat , but only touch some differences , between liferent-escheat , and single-escheat . first , single-escheat is only a legal penaltie , and therefore belongs alone to the king , and his ministers of justice , who are comptable to him therefore as sheriffs , &c. or to there own behove by their infeftments , as lords and baillies of regalitie : but liferent-escheat is not only penal , but is a legal consequence of the condition of the rebel , whereby he being out-lawed , and having no person in judgement , is excluded from the possession of all his rights , and is esteemed as civiliter mortuus , whereby his fies become open , and are in the hands of his superior , whether the king , or any other superior , by his continuing unrelaxed year and day : and therefore the diligences done against , or the deeds done by the rebel , for satisfying of his lawful debts contracted before rebellion , do not effect his liferent-escheat , as they do his single-escheat , though they be done before year and day expire , being after the rebellion : and so arrestments , or assignations , even though before rebellion , have no effect after year and day is run , because these being but personal , and liferent-escheat a reall right flowing from the superiority , whereby the vassal is denuded of the liferent : therefore the effect of these personal rights ceaseth ; but all reall rights flowing from the vassal before the rebellion , as fews , annualrents , tacks , appryzings and adjudications whereupon there was a charge , are effectual , and not excluded by liferent-escheat , though these are excluded by ward , which is a casuality following the nature of fewdal rights ; whereas liferent-escheat ariseth not from the nature of fies , but is introduced by law or custom , and therefore the fie falls in the hands of the superior as it was in the hands of the vassal , with all the real burdens he had fixed upon it : neither does posterior voluntary infeftments , though for debts prior to the rebellion , and granted before declarator , exclude the liferent-escheat , jannuary . . samuel ord contra the laird of craigkeith . the like , where the infeftment was granted after rebellion , but within year and day , january . . james wallace contra thomas porteous . where there is an exception insinuat , unless there had been an prior obliegment before the rebellion , to grant thelnfeftment , as if in that case ( though in cursu rebellionis ) it would be sufficient to exclude the liferent . the like was found , that infeftments upon a voluntary disposition , made in cursu rebellionis , within the year , and for a debt due before rebellion , excluded not the liferent-escheat , march . . mr james rae contra buckie , hope horning , laird of frendraught contra meldrum , gordon of 〈◊〉 contra gordon of haddo . but infeftments in cursu rebellionis upon special obliegments , to grant the same before denuneiation , are valid . vide tit. . § . as to legal diligences of creditors , whither appryzing and infeftment thereupon , being after rebellion , will exclude the liferent-escheat was declared the last title in the second effect of appryzings , the sum whereof is , that they are thus far preferablé to voluntary dispositions , that being done in cursu rebellionis , for a debt before rebellion ; there being infeftment , or charge in cursu rebellionis , they exclude the liferent . secondly , single-escheats require general and special declarator : liferent-escheats require but one declarator for all , wherein the title is the horning , the gift , and the superiors seasine , without farder instructing the superiors right , and without continuation , july . . carmichael contra lermont , march . . dowglas contra eastnesbit , june . . viscount of stormont contra and there is no necessity to instruct the lands holden of that superior by the defender . the reason is , because that is presumed , unless the defender disclame , or that the superior be a singlar successor , never acknowledged by the vassal , or his predecessors . . shipwrack , and wath goods , or treasures in the ground , whose owner appeareth not , are confiscat as caduciarie , whereby the owners are presumed to relinquish , or loose the same . and so a jure sup cadunt , and the things become nullius , and yet belong not to the first possessor , as things relinquished do , by the common law , but do belong to the king , by his royal prerogative , or to others having right from him . we have spoken of these before in the title real rights . and shall only add this , that by that just and noble statute , par. . cap. . it is declared , that where ships break in this countrey , the ship and goods shall be escheat to the king , if they belong to such countries as use the like law anent ship-wrack in there own land , otherwayes they shall have the same favour , as they keep to ships of this land broken with them . it is also declared amongst the statutes of king alexander the second , cap. . that if any living man or beast , as dog , cat , &c. come quick out of the vessel , the same shall not be accounted ship-wrack , but shall be preserved to the owner , claming and instructing his right within year and day ; or otherwayes it shall belong to the king : so was it found , where an ox escaped alive out of the ship , and the admirals decreet finding the same escheatable , as shipwrack was suspended simpliciter december . . hamilton contra cochran . in which case nothing was alleiged , but this old statute , the genuine meaning whereof seems only to be where any person came to land the ship and goods should not be confiscat as wrack , but the posterior act , par. . cap. . repeats not that provision , but regulats the matter according to the custom of other nations , to do to them as they do to us , without any other limitation . and therefore where some persons came to land , the ship being broken , the same with the goods dispersed were confiscat , if confiscation in the like case should be proven to be the law , or custom of that place , to which the ship belonged , january . . jacobson contra earl of crawfoord . . forefaulture is the great confiscation , comprehending all other penal confiscations . it is extended to the taking away of life , lands and goods , par. . cap. . for it is the penaltie of the highest crime , to wit treason ; which at first , and by its native signification , it expresseth crymes against the life of any partie under trust : so the slaughter of any person under trust , credit , or power of the slayer , is declared treason , par. . cap. . . thence it is also called treachery , and the committers thereof traitors . and because of that trust betwixt the king and all the leiges , as their superiour and soveraign : the chief point of treason is against the kings person , as appeareth by the act last cited : these also , who without cause , wilfully raise a fray in the kings host commit treason , par. . cap. . upon the same ground , because of the trust betwixt the superiour and his vassal , such crimes against the superiour , is also called treason , and thereby the committer looseth for ever , all lands and heritage he held of that sùperiour , quoniam atachiamenta , cap. . but this treason infers not a simple forfaulture , but only is a ground of recognition : but as now the terms are take , treason , and forefalture of life , lands and goods are adequat , and wherever the one is exprest in any act of parliament the other is understood for the stryking or slaying of any person , within the parliament house , during the time of parliament , within the kings inner-chamber , cabinet or chamber of peace , the king being within his palace , or within the inner-tolbooth , the time of session sitting , or within the privy council-house the time of the council sitting , or in his majesties presence any where , is declared treason , par. . cap. . impugning the dignity or authority of the three estates of parliament , or procuring any innovation , or diminution of there power , is prohibit under pain of treason , par. . cap. . and also declyning the king , and his council , in any matter to be inquired before them , par. . cap. . purchasers of benifices at the court of rome , are ordained to be denunced as traitors to the king , par. . cap. . par. . cap. . par. . cap. . so forgers of the kings coin , and home-bringers thereof , incurr the lose of life , lands and goods , par. . cap. . saying of mass , resetting of jesuits , seminarie priests , and traffiquing papists : and these themselves are lyable to treason , par. . cap. . par. . cap. . raising of fire wilfully , or burning of houses , or corns , whither folk be therein or not , is declared treason , par. . cap. . landed men committing or resetting ryot or robbery , incurr the pain of treason . par. . cap. . and generally , resetters , maintainers , and assisters of declared traitors , commit treason , par. . cap. . accuser of others of treason , if the accused be acquit commit treason , par. . cap. . . forefaulture confiscateth the forfaulted persons whole estate , without any access to his creditors ; yea without consideration of dispositions infeftments , or other real rights granted by the forfaulted person , since or before the committing of the cryme of treason , for which he was forfaulted , which fall and became null , by exception , hope , forfaultur viscount of rochester contra teuents of callavrock , july . . campbel contra lifnories , spots conjunctfie , crawfoord contra laird of murdiestoun , unless these rights have been confirmed by the king as superiour , or consented to by him . it only remains dubius , whether feu infeftments granted by forefault persons , before committing of the cryme be also annulted by the 〈◊〉 . and the act of parliament anent feus , par. . cap. . should not only defend them against recognition , and the casualities of superioritie , but even against forfaultur it self , it being therein declared , that the king will ratifie the saids feus . the like is to be understood of other superiors . so that though de facto they be not confirmed ; yet the declaration , and obleigment of the statute standeth as a confirmation thereof , or at least as an obleigment upon all superiors , against which , they nor their donators cannot come . this is to be understood , while 〈◊〉 are allowed by law , vide title infefints . sect. it was so decyded february . . marques of huntlie contra gordon cairnlorrow , november . . campbel of silver craigs contra land of auchinbreck , and the earl of argyl , not only because the act of payliament , . imports a confirmation of feus granted thereafter , but also because forefaulture is by penal statute , and not by the feudal right , like unto liferent escheat , which returneth the fie to the superiours , but with the burdens put thereupon by the vassal , whether feu , blensh ward , or by annualrent or tack . and therefore when any person is forefault , that is not the kings immediate ward vassal , his estate , both propertie and superiority falls to the king , but with the burden of all real rights constitute by the vassal ; yet forefaultur of the kings immediat ward vassal , proceedeth upon crimes inferring recognition : and therefore returns his ward lands to the king , as they came from the king free of all burden . so that the act of parliament . which unquestionably secures against ward , and recognition must also secure feus against the forefaultur of the vassal granter of the feus , but will not secure any other subalterne right , without the superiours consent , as a blensh infeftment , jan. . . marques of huntlie contra laird of grant. . tacks also being necessary and profitable , are not excluded by forfaultur , maitland december . . home of manderstoun contra tenents of oldhamstock , leslie of wachtcun contra the like as to tacks for a competent dutie , but not in tacks for grassams , january . . general dalziel contra tenents of caldwall . . but by the act of par. . forfaultur was declared to be without prejudice to all persons not accessary to the cryme of the superiour of the rights of property of any lands , wodset , or others holden by them , of the forefault person , or of the payment of their just debts , or relief of their cautionries our of the forfaulted estates , which is now rescinded by the general act rescissary , par. . cap. . . forefaultur could not be pronunced in absence of the forefault person , by the justice gerneral , but only by the parliament . so that no certification of the justice could reach lands , but only moveables , so july . . william yeaman contra mr. patrick oliphant . neither could it extend to heritable bands , november . . anthonie hag contra moscrop and rutherfoord : but now the justices may proceed to forefault absents , in case of open rebellion , and rysing in arms , par. . cap. . . because of the defficulty the king or his donatar might have , in knowing the rights of foresaulted persons , by labouring the same with their own goods , setting the same to tenents , and up-lifting the mails and duties , as their heritage , and so being reput heritable possessors for the space of five years , immediately preceeding the process of forefalture , the lands so labored , or possessed pertain to the king , and his donatar , though they can produce no heritable right , or title thereof in the forefault person : for tryal whereof commssion may be granted under the testimonial of the great seal , to such persons as shal be thought fit by the advice of the secret council , to take cognition , by an inquest , what lands were brooked by the forefault person , as heritable possessor thereof , so commonly reput and esteemed by the said five years space , with power to call before them all parties pretending interest , which being retured to the chancelarie ad perpetuam remanentiam , shall be a sufficient right , par. . cap. . this right was sustained to a donatar , though nearest of kin to the forefault person , and presumeable to have his right july . . maxwel contra westeraw . but here the donatar was made to depone , that he had just reason to affirm , that the rights were wanting , hope possession inter eosdem . this right was not elided , though it was offered to be proven , that the forefault persons right was reduced in foro contradictorio upon recognition before his forefaulture , feb. . . hairstons contra ramebel . so the said . years possession being repute , heritable possessor infers presumptionem juris & de jure , of the forefaulted persons right , which admits no contrary probation , as to the forefaulted persons right , if the quinquennial , peaceable and lawful possession be proven : but the probation thereof by inquest , will not exclude a contrary probation , by reduction , of the possession of others , within the . years : and if the possession be not lawful and peaceable , but interrupted , or vitious , the statute takes no place , for by possession , lawful peaceable possession of the forefaulted persons must be understood : and if any person have moved action within the . years , for taking away the rebels right and possession , they will be heard after the forefaulture , as before ; yea , citation before the . years , and inhibition in the . years , with a subsequent security , was found sufficient to take off the benifite of this act , july . . earl of southesk contra marques of huntlie . this priviledge is not competent by exception , or reply , offering to prove . years possession , but by a reture upon a commission served by an inquest , july . . sr. henrie hoom contra sr. alexander hoom. in this statute , it is also provided , that where there were tacks , or possessions of lands , or teinds possessed by the forefault person , in respect that the rights thereof might also be abstracted , that the king and his donatar should continue in that same possession for sive years , without any accompt for the profits thereof , and longer , if a right be instructed of the forefault person : and if a fewer be forefault , the land is not lyable for the feu dutie , preceeding the forefaulture , because the discharges thereof might have been abstracted , possession for feuer then . years , by the forefaulted person , was found sufficient to continue for years , though no tack was instructed , jannuary . . sr. henrie hoom contra sr. alexander hoom. . it is also declared in this statute , that the forefaultur of the appearand heir , carries therewith the right of the lands , to which he might succeed , though he were never entred heir , nor infeft , whereof craig mentions a case , lib. . dieg. . that the daughters of the laird of laisindrum were excluded from their succession to their goodsir , because their father was forefault , though he was never received , nor infeft in these lands . . craig , in the forecited place moveth , but determineth not this question , whether the forefaulture inserreth a corruption of the blood , of all the descendents of the forefault persons , whereby , till they be restored , they are incapable of any succession , though descending to them by the maternal lyne . this corruption of the blood is frequently in fngland , where persons are specially attainted and convict of treason : and sometimes with us , it is called dishabilitation , and is a part of the doom or sentence , that the successors of the person convict , shall be incapable of lands , estate , honour or office ; yea , then fame , and memorie , is sometimes condemned , and their surname abolished , as was done in the forefalture of the earl of gourie : but it is not consonant to our customs , that forefaulture in other cases should infer this corruption of blood ; first , because of the multiplication of cases , to which forefaulture is now extended , as to thest on 〈◊〉 men , and false coyn. . if none of the descendents of 〈◊〉 persons were capable of succession to any person , that could not be , by reason of any speciality in the matter of succession , but of something in their person , by reason of the forefaulture , excluding them thence , which would not only take place in heritage , but in moveables ; yea , the oye , or farther off-spring of the forefaulted person could not succeed to their ownimmediat parents , which would inferr , that they could be capable of no goods , or means , but the same would be instantly confiscat . . though forefaultures in scotland have been very frequent , the off-pring of such have ordinarily acquired lands , and goods , and their children succeeded them therein , without obtaining restitution of their blood : so that this corruption of the blood is rather to be thought a speciality , in some attrocious treasons by the tenor of the doom of forefaulture , then a general consequence thereof . . but whereas it hath been said , that the appearand heir being forefaulted , the king hath right to the heritage , to which he might succeed ; it may be questioned , whether that my be extended to the appearand heir , if he be forefaulted , during his predicessors life : or if it be only in the case , that the heir apparent is forefaulted , after the death of his predecessor . where de presenti , he may be heir , there is no doubt , if the person forefaulted should be fugitive , and survive his predecessor : but the heritage accresing to him , wherein he might de presenti infeft , would fall under forefaulture , though he were not actually infeft ; and it seems no less clear , that being forefaulted , if he should die before his predecessor , that his brother , or collaterals might succeed to their father , or any other to whom the forefaulted person , if he had survived them , would have succeeded . it is more doubtfull , whether his descendents could , if any were , for these would exclude the collateralls : and there seems no reason to exclude them from their grandfathers heritage , not being dishabilitat : and seing i have not found it extended further , i conceive it more favourable , that the heir appearand dieing before his predecessor , should not hinder his descendents to succeed to that predecessor : but unless the forefaulture did incapacitat the predecessor , to dispose upon his own estate , the forefaulture in that case , would be improfitable ; yet seing we have no complaints of exhaeredatione in scotland : but that parents may freely dispose of their estates at their pleasure , it would be hard , to bind up the parent more in relation to the fisk , then tohis own child , unless fraud to prevent the effect of the forefaulture without a rationall cause do appear . . for the further security of the king and his denatar , it is provyded , par. . cap. . that no letter of pension , factory , band or assignation , granted by any forefault person , shall be valid , unless it be confirmed by the king , or authorized by decreet of an ordinary judge , obtained before citation in the process of forefaulture , which seems to insinuate , that creditors should be satisfied out of the forefault estate , but it will reach no further then the moveables fallen by forefaultnre , which seems to be affected in the same way , as falling by single-escheat , the full dominion in both being the kings , but with the burden of admitting the diligence of lawful creditors before declarator , but i have not observed this practiced , in moveables of forefault persons . the reason of this statute appeareth by the act immediately preceeding , whereby a former act of parliament in favours of the vassal of forefault persons is resoinded , and appointed to be delet out of the books of parliament , which rescinded act , though it be not extant , but delet as aforesaid hath affected forefault estates , with the debts of the forefault person , and with the subaltern infeftments , granted by forefault persons not confirmed : and therefore such rights being constitute by a law then standing , could not be derogat by a subsequent law : and therefore it was 〈◊〉 to caution , by the foresaid act . that simulat or antedated rights , might not affect estates forefaulted , before the said rescissory act. . sentence of forefaulture being pronunced , is declared irreducible , upon any nullitie in the process , upon which it proceeded , till the 〈◊〉 be remitted by the king , or the partie tryed and acquite thereof : but restitution shall only be granted by way of grace , to the parties forefaulted , or their posteritie , par. . cap. . which was not found to extend to dishabilitation of the son of the forefaulted person , but that it might by act of parliament be taken off , without citation of any partie , who had acquired right upon the dishabilitation from the donatar , which fell in consequence , february . . dam elizabeth douglas , and sr. robert sinclair contra laird of wedderburn . . the doom or decreet of forefaulture , when past in parliament , gives immediat access to the mails , and duties of the estate possest by the forefault person , and needs no declaratar , because it is a decreet of parliament , and hath the like effect as ward , which requireth no declarator , jan. . . george hoom contra mr. patrick hoom. the like though the doom of forefaulture was by the justices in absence . seing it was ratified in parliament , not by a ratification passing of course , but by a publick law , ratifieing that forefaultnre by the justices , as if it had been done in parliament : and all such forefaultures by the justices , being for open rebellion , and rysing in arms against the king , december . . gordon of troquhen contra a wodsetter of barscow . . bastardrie and last heir makes things befall to the fisk , as caduciary , because such things can be lawfully claimed by none . and therefore are applyed to the fisk. ere we can conceive the effects of bastardrie , we must understand the efficient that makes a bastard , which being relative and defective , is best taken up by the opposite , viz. a lawful child begotten of persons lawfully married : so then a bastard is a child , whose parents werenot lawfully married ; and therefore such are bastards , first , whose parents were not at all married . . these whose parents were married , yet were not in degrees capable of marriage , . these who were married , and in capable degrees , yet the marriage was inconsistent , because of some impediment , as if either party were married before , and the other spouse on life , whether that were solemnly , or privately , by promise of marriage , and copulation following , in which last case , if the impediment be secret , and not known to both parties , craig observeth as his own opinion , and the opinion of the 〈◊〉 , that the said impediment , though it be sufficient to anull the marriage , yet not to take away the legitimation of the children , procreat bona fide by any of the parties , before knowledge of that impediment . but , because , who are the parents , is sometimes dubious , procreation being secret both in the act and effect : for clearing thereof , it is the common rule in the civil law. and with us , pater est quem justae nuptiae demonstrant l. . f. de in jus vocando . so he is presumed to be the father , who the time that the conception might be , was married to the mother ; but in this case , lawful marriage is not opposed to clandestine , or irregular marriage , as not being after proclamation in the church , or by a person having power to marry by the canons of the church , or statutes of the countrie : but that is only understood , as unlawful marriage in this case , which materially is unjust and inconsistent , where marriage could not have subsisted , albeit it had been orderly performed , as being by persons in degrees prohibited , by divine law , or where either partie had another lawful spouse then living , and undivorced : yea , marriage betwixt the adulterer and the adulteress , after dis solution of the former marriage doth not inferr bastardrie of the children of the subsequent marriage , though it may debarr them from succession . the presumption , that the children born in marriage are the husbands , requires such time as they might have been lawfully procreat , when both parties were free , and unmarried , which if it was moneths before the birth , it is sufficient , but if less , the presumption will not suffice ; unless it appear the child was unrype , and born before the time , otherwise the child will be presumed to be the former husbands . this is presumptio juris , and admits contrary probation . as first , if the father were absent , or impotent , the time that the conception could be , which absence is not necessarily beyond sea , as the english require the fathers absence : and therefore , if he be within the four seas during the time the birth is in the womb , this presumption prevaileth against his absence with them : but with us it will be sufficient , that his absence be special , and circumstantiat , that there remaineth no doubt , that he could not have been present . as if the father were in prison , or at very great distance : so that a short time might not suffice him to be present . this presumption will also be taken off , by the testimony of both parents agreeing , that the child belongs to another father , and so is a bastard : but the testimonie of either of them will not suffice , as craig relates , of a lady , that having controversie with her son , she was accustomed to consesse that he was a bastard : and of a queen , related by the doctors , whose name they forbear , who , at the time of her death , declared to her son , that he was not the kings son , yet he was received as king , in his fathers place . it hath been more frequently seen , that the father hath disowned the child born of his wife , which though it might inferr suspicion and reproach , yet not bastardrie , unless the mother also of consent , or by process were made to acknowledge it . it will not be sufficient to eleid the foresaid presumption , though the wifes adulterie should be proven ; yea , though at a time answering to the time of conception , though it hath an ordinary course of moneths , yet hath had such variations , that the child hath been accompted belonging to the father , by reason of the marriag , though it preceeded the birth of the child , only by the space of , , or the beginning of . moneths ; especially if by the judgement of phisicians immaturity of the child concurred ; yea , this presumption will atribute the child to the father , though the child be born , or . moneths after the fathers death : but in these cases , the probability of the circumstances may make the mothers testimony alone sufficient to instruct the bastardie of the child : neither is marriage here accompted , by the solemnization thereof in the church , which in some places is ordinarily without that , and though with us , it be a requisit solemnity , yet it is not of the being of marriage . and therefore , cohabitation , as man and wife supplyeth the solemnity of publick marriage , which being a 〈◊〉 act , and having no record , could seldom be proven ; yea , though it could be proven by the oath of both parties , or otherwise that there was never a formal marriage , if the parties were capable of marriage , cohabitation would supplie , for after contract , or promises of marriage , or sponsalia , if copulation follow there is thence presumed a matrimonial consent de presenti , which therefore , cannot be past from by either , or both parties , as having the essential requisits of marriage if diligence be used for performing that solemnity , though it take no effect , the contract of marriage will make the child lawful , as when , in the time of the proclamation thereof , the one partie died , whereof craig relateth a case : yea , in the case of edward younger there mentioned , who having begotten children under promise of marriage , but refusing to acknowledge , or perform it , the woman having obtained sentence of the commissars ( who are judges of matrimony and legitimation ) against the said edward , for solemnizing the marriage , which though he obeyed not , the children were accompted lawful , and capable of succession . marriage , as is before shown , title conjugal obligations , is proven by cohabitation of the father and mother as married persons , which was sustained upon . years cohabitation , as man and wife , though it was offered to be proven the child was reput bastard , july . . somervail contra haltro . and there being a mutual probation , whether a defunct was lawful , or a bastard , and six witnesses being examined on either side , though several of the witnesses on the one side proved , that the defunct was reput bastard , and that his mother gave signes of repentance publickly in the church , for fornication with his father : but others proving that they were in there house , and saw them cohabit , as man and wife , but did not mention how long , the defunct was found to be no bastard , but a lawful child , jan. . . mr. robert swinton contra marion kaills ; yet this was eleided by contrary probation , that the father had then another wife , and a lawful child thereby , and that the person in question was reput bastard , hope bastardrie , archbald chirnside contra isobel grieve , and christian williamson . bastardry is also eleided , by proving the person in question , to be holden and reput lawful , unless the pursuer condescend , and instruct the contrary , by particular circumstances , hope bastardry , hog contra hog . ninian chirnside contra william hoom. the like where the person in question was . years old , james hope contra scot : the like being . years after the bastards death , who died an old man. the lords would not grant process de statu defunctorum post tantum tempus , feb. . . malcom crawfoord contra hellen and bessie russels . . bastardrie hath no effect till declarator , which proceeds upon a general citation against all and sundrie , at the mercat cross of the shire where the bastard dwelt , at the instance of the kings advocat , or donatar , because the bastard can have none to represent him , but if the bastards debitors be called specially , there will not only follow a general declarator , that the person was bastard , but a decernitur against the debitors , which is a special declarator , though these may be disjoyned in several processes , but if any partie appear , as nearest agnat , he would be admitted to defend , decem. . . james somervail contra william stains . it was found that a declarator of bastardry was not relevantly lybelled , that the father and mother were not married , unless it were added , that the defunct in his life , was holden and reput bastard , which was found and instructed , by his taking legitimation from the king , feb. . . kings advocat contra craw , june . . livingstoun contra burns , jan. . . somervail contra stains . . as to the effects of bastardrie , from the former principile , pater esi quem justa matrimonia monstrant ; children not begotten of parents lawfully married , are called vulgo quaesiti , and are compted in law , to have no father agnats , nor kinsmen on the fathers side , and therefore they cannot succeed to their father , or any of their agnats : neither can any of these agnats , succeed to them , either in heritable or moveable rights , but only their own succession , by lawful marriage . so then bastards dieing without lawful issue , their goods become caduciarie and void , and so fall to the fisk : yea , if the lawful issue of the bastard at any time fail for the same reason , their goods become caduciarie , and return to the king , either by reason of the bastardrie , or as ultimus haeres , july . . haltro contra somervail . though bastards can have no ascendent or collateral heirs of lyne , yet they may have heirs of tailzie , in lands which did exclude the fisk , when the same was provided to the bastard , and the heir of his bodie . which failzing , to any other person and his heirs , spots bastardrie , weir contra kings donatar . they may also be heirs of tailzie specially nominat , as craig observeth , in the case of the earl of errol contra hay of cockstoun , who , and the heirs of his body made a member of tailzie , which was sustained , though he was bastard . bastardrie hath only effect against succession to the bastard , but doth not incapacitat the bastard , to dispose of his own estate , heritable or moveable in his leige paustie : and likewise the bastards wife hath her share of his , moveables as other relicts have : but if the bastard have no issue , he hath no power of testing , and can neither nominat executors nor leave legacies unlesse he obtain legitimation from the king. . legitimation , though it have many ample clauses , yet the main effect of it is that the bastard having no lawfull children , hath thereby power to test , june . commissioners of the shire of berwick contra john craw. but it hath no effect , as to his heritable rights , which his testament cannot reach : it will have the like effect , if the bastard obtain from the king , the power of testing : and therefore a bastards legatar was preferred to the donatar of bastardry , july . . wallace contra mure. in which case it was found , the relict had her half : and if the bastard had lawfull children surviving , he may test without any gift , none being concerned , but his children , to whom also he may name tutors , as was found , march . mare contra kincaid , and these will succeed him as heirs , or executors . the effects of bastardry , in hindring there succession to others , falleth to be considered in the subsequent titles , concerning succession . . it remains to be cleared , whether the bastards debts follow his estate , and that diligence of lawfull creditors will exclude , the donatar or fisk : it was so found , that the bastards creditor , arresting before his death , had access , notwithstanding the bastardry , feb. . . clerk contra earl of perth . the difficulty will be , of the diligences competent after the bastards death seing he hath none to represent him , yet bastardry is but a species of ultimus haeres , the ground in both being the same , that the king is heir , because there can be no other heir , and so is last heir . and therefore in both cases , the estate is lyable to the debt , which may affect it , contra haereditatem jacentem by adjudication , calling the officers of state , and donatar , craig is of the same opinion , lib. . dieg. . it was so found , july . . kings donatar contra it was also found , that the donatar of bastardry pursuing for payment of a band due to the bastard , was lyable to fulfill the bastards back-band , june . . alexander alexander contra lord saltoun . . ultimus haeres may seem to be a succession from the dead , and to come in amongst other heirs , yet though it hath the resemblance of an heir , because it hath effect , when there is no other heir , and makes the heritagelyable to pay the defuncts debts , it is only a caduciarie confiscation of the defuncts-estate , with the burden of his debt , but no proper succession to him therein , which appeareth , thus ; the heir is one person in law , and is therefore personally obleiged for all the defuncts debts , so is not the fisk , against whom , or the donatar , there lyeth no personal action for payment , but for restitution , if he have intrometted , and of real action , contra haereditatem jacentem , which is most proper by adjudication , being the supplement of ordinary actions , or executions competent by law. for there being no partie to represent the defunct debitor , there can be no decreet , but cognitionis causa , and adjudication following thereupon , in which the fisk , or donatar is to be called passive , as the party having interest , to see that the debt be due , which will affect the defuncts caduciarie heritage , to the detrement of the fisk , or donatar . so then ultimus haeres , and bastardrie , are of the like nature , which being caduciarie confiscations , fall to the fisk , because no other can have right , there may be this difference betwixt them ; that in the case of the last heir , creditors , for their satisfaction , may confirm the defuncts moveables , and so recover the same , for their own satisfaction , in which case , they would be lyable , as other executors , to the remanent creditors of the defunct , and to the fisk , or donatar , for the superplus : as in the place of nearest of kin , & to the relict also for her part , but this being only for obtaining their own satisfaction , and for shunning a more extraordinary way , by adjudication ( which also they may use at their option ) they ought not in prejudice of the fisk , to have the third part of the defuncts part , as other executors , but in the cases of bastardry , confirmation of executors is not competent , because the bastard , being excluded from the power of making testament , can have no executor . concerning last heir , the greatest doubt is , who they are , and in what cases they take place ? as to the first , craig , lib. . dieg. . is not positive , whether superiours be last heirs of the defunct , in the fies held of them , or if the king be the last heir for all : and according to the antient feudal customs , there is no doubt , the feus return to the several superiours , for thereby none could succeed ( without express provision in the contrary ) but the lawful issue of the descendent of the first vassal , whose person and race was peculiarly chosen , and confided in by the superiour . but now fies not being gratuitous , as at first , but for onerous causes , besides the reddendo & service , and ordinarly granted to the vassal , and his heirs whatsomever : which failzing , the king , by his prerogative royal , excludeth all other superiours , who are presumed to retain no right , nor expectation of succession , unless by express provision of the investiture , the fies be provided to heirs male , or of tailzie , which failzing , to return to the superior : in which he is proper heir of provision . as to the other doubt , in what case the king is last heir , craig , in the forenamed place relateth , that some were of opinion , that if the defunct had no heirs within the th degree , the king taketh place as last heir . and that others thought it to hold in collateral successions , but his own opinion is in the contrary : that any heir , of what degree soever hath right , which suiteth with the ground now laid , that the king hath right , as last heir to the heritage become caduciarie ; because no other partie can be instructed lawful heir . so he reporteth , it was found in the case of the earl of marr , who was served heir to lady elizabeth dowglas countess of marr , beyond the tenth degree . and that the lord seatoun , that he might have a title to the redemption of the lands of longnidrie , against forrester , served himself heir to the granter of the wodsett , beyond the th degree , whereof several degrees were collateral . and the french king henrie the th succeeded to henrie the . though not within the . degree . the gift , or right of ultimus haeres hath no effect , till decreet of declarator be obtained thereupon , in the same way as in bastardry , july . . laird of balnagoun contra dingwal . july . . thomas crawford contra town of edinburgh . title xxvi . succession . . whether in equity there be a rule in succession . . that rule is the expresse will , or presumed will of the defunct . . the first degree of succession by the presumed will of defuncts . . whether in equity , there be right of representation . . failing descendents , ascendents succeed in equity . . failing both brothers and sisters succed . . failing these the nearest agnat succeeds . . the succession of cognats . . the jewish succession , whereby all the sons succeed , and exclude the daughters , and the eldest son hath a double portion . . fathers could not prejudge the primogenitur of their eldest sons . . by the jewish succession , failing descendents the inheritance passeth to brethren , and these failing , to fathers brethren , and failing these to the nearest kinsman . . whether in the jewish succession , there be right of representation . . why no femals but daughters succeed among the jews . . why parents succeed not amongst the jews . . succession amongst the romans was first by testament . . if there was no heirs institute by testament , the antient roman law called all the children of the family unforisfamiliat male & female , not excepting adopted children to succeed . . these failing , the nearest agnats , but no parents thereby succeed . . the romans succession be the pretorian law. . their succession , by justinians novel constitution . . in feudal succession , the first rule is the expresse will of the partie by the investitur . . the nixt rule is , the conjectured will , according to the nature of the fee. . primo-geniture now established , by common custom in feudal rights . . succession in scotland , is wholly different . in moveables and immoveables . . the several degrees of succession in moveables , . succession in heritable rights . . the difference betwixt the two successions . . the priviledge of heirs , not to be prejudged by their predicessors deedes on death-bed . . what is estimate death-bed . . against what rights death-bed is extended . . death-bed annulls no deeds for causes onerous . . dispositions in testaments , are as on death-bed . . annus deliberandi . . kinds if heirs in scotland . . no place for adopted , or cognats in succession with us . . parents succeed to their children , & exclude the parents collaterals , or these representing the colaterals succession to defuncts , is the most important title in law , for thereby the rights of all persons , do necessarily passe once , and frequently often , in every generation , and therefore the rule and course of succssion ought to be accurately searched out , and followed ; and because the channel of succession is with us divided in two currents , by the one whereof , all heritable rights ; and by the other all moveable rights are conveyed from the dead to the living . the first passing unto heirs , the second unto excutors : we shall in this title consider , that which is common to succession , and in the subsequent titles , that which is proper to the several kinds thereof . as to the common consideration of succession , we must severally inquire . first , what natural equity holdeth forth of succession , . what the judicial law. . what the civil roman law. . what the feudal customs . last , what our own law , and consuetude , provideth concerning succesion . . for the first , it may seem , that succession hath little foundation , far lesse a competent regulation , in equity , or by the law of nature ; because the matter of succession is so variable , that every nation , yea , almost every province , and many cities , have their several constitutions and customs for succession , arguing it to be wholly in the arbitriment of people , and authority over them . yet this will not follow , that succession hath no rise , nor rule in equity ; for , as hath been ofttimes showen before , most of the rights of men , are ordered in equity ; yet so , as they are put in the owners power , who may alter the same by there will. so it will be found in the matter of succession , which appeareth thus . first , succession was before constitutions or customs , of constitution there will be no doubt , these are but rare to this day , succession being yet ordinarily by custom , and custom necessarily implyeth antecedent acts of succession , inductive thereof , which therefore , behoved to have some other rule , then the custom thereby introduced . . where there is neither law nor custom , concerning succession : as when people from divers countries do gather into new plantations , in america , and live not severally , as parts of their mother countries , but joyntly : such have goods , which by their death , become not caduciarie or nullius , to be appropriat by the first occupant . if therefore , they remain in the property of some persons , which needs must be by some law , it can be by no other , then natural equity , or the law of rational nature . . it is not to be thought , that god , who hath allowed propertie , would leave man distitute of a natural rule , whereby to regulate it after the owners death , though there were no law , nor custom about it . . but it is not so dubious , that there is a rule of equity in successions , as what it is , for clearing thereof , we shall parcel it out thus : first , every right , being a faculty , or power of exaction , or disposal ; it is a chief interest and effect of it , that the owner may dispose thereof , not only to take effect presently , but if he please to take effect after his death , and by the law of nature , the sol will of the owner is sufficient to passe , or transmit his right , if communicable , both in his life , and after his death . so then , the first rule of succession in equity , is the expresse will of the owner , willing such persons to succeed him in whole , or in part . it may be objected , that the will of the owner is not the rule of succession , because there lyeth upon the owner a natural obligation , to provide for his relations , not only during his life , but after his death ; as it is said , tim. . v. . he that provideth not for his own , especially these of his own familie , hath denyed the faith , and is worse then an infidel . which importeth that infidels have naturally that principle : and therefore , the first member of succession , in equity , must be those of the defuncts family , and not those of his institution , or choice . this doth indeed well conclude a natural obligation on all men , to provide their own ; but first , it will not extend so far , as to incapacitat the owner , to dispose of his own , either in his life , or after his death : so that there remains a competent provision for his own , otherwise , he might not even gift in his life , but he may gift , both to take effect in his life , and after his death : and is not necessitat , to institute his own as heirs , but to provide them . . the dutie of provision , is a personal obligation , but the power of disposal , and succession thereby , is a real right , which are toto genere different rights ; now real rights are not hindred , nor altered by personal obligations , though the disponer hath failed , and remains debitor , as an obliegment to dispone , is no disposition : but the present dispositive act of the will doth only constitute , or convey the right : which , though it be posterior to an obliegment , in favours of any other , that doth not annull the disposition , though it oblidge the disponer . if there be no express will of the defunct , the main difficulty is , what is the second member of natural succession : wherein the presumed will of the defunct takes place , which hath this rule , quod naturaliter inesse debet , presumitur . and therefore the defuncts will is presumed to institute his own , whom he is naturally oblieged to , provid in the first place : so that it is not the obligment to provide , but the defuncts will presumed thence , which disposeth upon his succession , for the oblidgment to dispon , and the actual dispositon , are different toto genere : and if the oblidgement to provide , were the rule , the express will of the ownèr could not over rule it ; where there is a custom of succession , the defuncts will is presumed , to be according to that custom ; but that hath its efficacie , rather from the custom , as it is a positive law then from equity . the presumed will of the defunct , to provide his own , is not indefinit of all his own ; but it hath a natural order , or substitution , standing in the nearest degree of consanguinity : for natural reason sheweth , that as there is not an equal relation , so there cannot be an equal devision to all , and there being no natural rule of proportion , the nearest degree must exclude the farther degrees in succession , which is clearly held forth in the foresaid text ; having an explicatorie , and applicatory term , especially these of his own family : and as the proportion is unknown , so the benefite , being extended to all 〈◊〉 , would evanish . therefore , what ever natural affection , or charity , may obleige the defunct to have done expresly , his presumed will hath no rule beyond the first degree . . fourthly , therefore the first degree of succession , by the conjectured will of the intestat , is of children , according to that , rom. . . if children , then heirs : which consequence doth necessarily import , that all children are heirs : neither can this be an allusion from the judicial law , by which all children were 〈◊〉 heirs ; but the male excluded the female : therefore it must needs be a consequence form the law of nature , and seing there is no different proportion , held forth by this text , or by the light of nature ; the succession of all children must be in equal shares , whether male or female , for in all communions , and partnerships , an equal division takes place , except an unequal be expressed . . it is more dark , whether by the law of nature , there be competent , the right of representation , whereby the issue of the defunct children represent them , and come in with the surviving children , to get that share , which their defunct parent would have got , if alive ; whereby they would not succeed in capita , the whole successors getting equal share , but in stirpes : whereby the issue of the defunct children , though they succeed equally among themselves , yet unequally with the surviving children , because the whole issue of the defunct , get but an equal share with each of the surviving children : as if a father having three children , the eldest dying before him , leaves one child , and two oyes by another child , if there be place for representation , the heritage would divide in three , the two surviving children will have two third parts , the other third will divide in two , whereof the child of the defuncts will get one half , and the other half will divide equally betwixt the two oyes : so then the question is , whether the descendents will thus succeed , or if the survivers will wholly exclude the issue of the deceasing . this right of representation , taketh place with us , and most other nations , in the right of immoveables ; which we call heritable rights , whether it be of descendents , or collaterals : but doubtless in that the course of the law of nature is altered , for the preservation of the stock or stem of the familie : so that it is clear , that there is no right of representation , in collaterals , by the law of nature , as that the child , or grand-child of a brother should come in with a brother , because the propinquitie of blood , natural affection , and so the presumed will of the defunct is diminished : but it is not so clear in descendents , neither shall we be positive in it , but it seems most suitable to reason , and the text adduced ; that if the issue of defunct children remain in the familie , that they should come in by representation , in the place of their defunct parent , for , these that are in the family , extendeth to all that are not forisfamiliat , whether children or grand-children , to whom there remaineth like affection , in the common parent : but when the defunct child was forisfamiliat , and so presumed to have been provided , and to have gotten a share , and therewith put out of the familie , to live in a distinct familie ; in that case , there seems no ground for representation , which doth agree to our custom , in the succession of moveables , wherein there is no right of representation , but the nearest of kin exclude the issue of the defuncts , which were of the same degree , which suceession is certainly more near unto the natural succession . what hath been said , may sufficiently clear the natural succession , of the defuncts descendents , whether children , or grand-children , and while there are any descendents , there is place for no other . . the third branch of natural succession , failing the express will of defuncts , and their descendents , or the issue of their bodies , is of parents , among whom , these in the nearest degree are preferable , as father and mother : and if the father be dead , there seems to be place for representation to his father , to come in with the surviving mother equally ; but other parents of , or by the female line , who are in another family , from the ground laid in the text , of providing these in the family , seem not to come in to exclude brothers , and sisters , and other collaterals in that family , as the grand-father , and grand-mother , on the mother side : it will not be opposite to this , which is said , children are not to lay up for parents , but parents for children ; which is not to be understood absolutely , but comparatively , and according to the ordinar course of nature . . the fourth link of natural succession , is brethren and sisters , among whom brethren and sisters german , being related by both bloods , exclude these who are only of one blood , by the fathers side : the reason is , because the presumed will of the defunct , being from their interest and relation , these of double relation , by both bloods , are preferable to these of single relation . . the last degree of natural succession is , of uncles , aunts , nepheus , neices , all which being in equal propinquity to the defunct , come in together , and failling these , the succession would befall equally , to the nearest degree of cousines , among whom the nearest degree excludeth the father , without right of representation : and these conjoyned by both bloods , exclude these onjoyned by one . husband and wife , doth not succeed properly , either to other , but having a communion of goods , there is a division by the death of either . . the main question is here , whether there be naturally , any difference in succession , betwixt the collaterals on the fathers side , who are called agnats , and the collaterals on the mothers side , who are called cognats . justinian in his novel constitutions , cap. . . took off all distinction of agnats , and cognats in succession : for which he is generally reprehended by interpreters , who behold such a difference , even in equity , cognats being conjoyned by women , who ordainarily , are under the power of others , even naturally by marriage . and so being of another family , they are not of the defuncts own family , as the agnats are ( amongst these , the mother , fathers mother , or other ascendents , on the fathers side in his family , are not hereby excluded ) and so neither these or other , by their express , nor presumed will , can transmit any goods , or estates . yet this point remaineth more dark : and i conceive , what hath come by the mothers side , or by the grand-mother , &c. therein the cognats of her blood would naturally succeed , because there are two grounds of presumption joyned , propinquity of blood , and gratitude , or remuneration to that linage , by whom , such things by succession came . so that paterna paternis , materna maternis , ought to take place in equity , as the presumed will of the defunct , unless the express will , or the law , or custom of the place be to the contrare . so much for the natural course of succession , which hath been the more insisted in , not only to shew the goodness and righteousness of god , instructing man , with an in-bred law , written in his heart ; though he were destitute of any humane constitution or custom , so that he might walk justly , in this important matter of succession : albeit all the lines of this divine impression , be no clear , to our sin-dimmed eyes ; but also that , where positive law , or custom is dubious , in the matter of succession , or is defective therein , emendation , and extention may be fetched thereto , from the law of nature , we shall now proceed to the positive law of god , given to israel , concerning succession . . the judicial law , in the case of the daughters of zelophehad , num. . . determineth the order of succession , in lands or immoveables , to stand as a perpetual statute to the children of israel . thus the first degree of succession is , of all the sons , whereby the daughters , and their descendents are excluded , but the sons do not succeed equally : for the first born had a double portion , of all that the father had , deut. . . by which the eldest son had twice as much as the other sons : so that the heritage being divided in one portion more then there were sons , of these the eldest had two , and each of the rest one ; as if there be two sons , it divides in three , whereof the elder hath two third parts , and the younger one third part ; if there be three , the heritage divides in four parts , whereof the eldest hath two fourth parts , which is the half , and each of the rest hath one fourth part . . this right of primogeniture , was so secured , that the father could not preser any other son thereto , deut. . v. . failling sons , the inheritance passes to the daughters equally ; for though the text expresseth it to passe to the daughter , in the singular number ; yet it is cleared by the context , that all the daughters are therein included , for the daughters of zelophehad , though more in number , are found to have the said right , and to get an inheritance among their fathers brethren , by which it appeareth that the right of representation had place there , for all the daughters of zelophehad were but to have that share which their father would have had , if he had been alive among his brethren , for they claiming the right of their father , whom they show not to have been in the company of corah , thereby forefaulting his right : so then , right of representation must take place amongst all descendents : so that the children of the sons , though these sons survive not their father , would exclude the surviving daughters , or would come in with the surviving sons , not equally , and in capita , but in stirpes , whereby they would succeed to the shares of their pre-deceased fathers , by right of representation . . the third degree of jewish succession , is failing descendents , the inheritance passeth to the defuncts brethren , and these failing , to his fathers brethren , and these failing , to the nearest kinsman of his familie , that is , the nearest agnats on his fathers side , where all the male agnats , of the same degree are understood . it doth not appear whether in this collateral 〈◊〉 , there be place for representation ; and though there be no mention of the succession of women , or their issue , but only of daughters , some have thought , from the paritie of reason , in everie degree , failing the males , the females are to succeed , and to exclude further degrees of males , as if there be no brothers , but sisters , these should exclude the fathers brother : it may be also thought strange , that in all this course of succession , there is no mention of the succession of parents . . in answer to these doubts , as to the first , i conceive , that in collateral succession , there is also place for representation , so that the brothers sons as representing the defunct brother , their father would exclude the fathers brethren . and so of the rest , because it is said , if there be no brethren , the inheritance shall passe unto the fathers brethren , which 〈◊〉 , unto the nearest kins-man , and if there be no right of representation , the cousin-german , or father brothers son would exclude the nephew , or brothers son , for uncle and nephew are never understood by the name of cousins or kinsmen , but have that special nominate relation of uncle and nephew , or father , and brother son , and therefore the brothers son , as representing the brother , must succeed , and exclude the fathers brother . . cateris paribus , succession will certainly descend to the brothers son , and not ascend to the fathers brother . . as to the second doubt , ihold , that only daughters and their issue do succeed , and no other females , or their issue ; the reason is , first , from the text , where failling sons , daughters are exprest , but failling brothers sisters are not substitute , but uncles . . the division and succession , and the land of canaan was typical , and was not to passe from tribe to tribe , and therefore , daughters succeeding , are appointed to marry in their own tribe ; because ordinarily they were to be married , when their fathers succession did probably appear ; but this could not have been , if fathers sisters , and these of further degree had succeeded . . as to the third , concerning succession of parents , it is sure , mothers , and all cognats , by the mother side , being ordinarily of other tribes , and families , were for the reason now adduced , excluded from the succession . the text is clear , that only kins-men in the family , that is on the fathers side succeed ; but the reason why there is no mention of fathers , &c. may be , because the land of canaan , being typical , is fixed to tribes and families , it uses not to passe by testament , or provision , or to be acquired further then by wodset , to return at the jubile ; therefore among the jewes , lands passed by the ordinar course of legittime succession , and so came from the fathers to the children , which presupposes the father to have been pre-deceased , and could not succeed . by this tract of the jewish succession , it is clear , that god , by his positive law , altered the effect of equitie , and of his moral law , in succession : for , it hath been now shown from that place ( if children , then heirs , ) that all children must needs be heirs , not by the judicial law , but by equity ; and yet by the judicial law , not all children are heirs , but sons exclude daughters , and females are excluded by males of a far distant degree , which necessarily infers , that for expedience , the course of succession may be altered . the like must also be in other effects of equity , which are in our power . . the order of succession in the civil law , did exceedingly varie , being in many points different , in the ancient law of the twelve tables , in honorarie law , introduced by the edicts and customs of the pretors , who had authority to supply , and correct the ancient law ; and in the imperial constitutions , especially in the novel constitutions of justinian , they did all agree in this , that the chief mean of succession , is the will , or testament of the defunct , which they held so sacred , that all pactions , or provisio s , which might any way hinder the free liberty of testing , or any act , whereby defuncts might be restrained , or constrained in the free disposal of their estates , were not only null , but exclusive of such persons , from having any interest in the defuncts inheritance ; yet were the romans so sensible of the natural obligation of parents to provide their children , that their midle laws , necessitat fathers either to institute ther children , or expresly to exhaeridat , or disherish them , expressing their delinquencie of ingratitude , the kinds and measures whereof , the law did determine : so that if the children were past by in silence , and neither institute nor exhaeridat , the law declared the testament void , and if they were exhaeridat without a due and true offence , it did allow the children querelam inofficiosi testamenti , that is , complaint against the testament made contra officium , which is the natural obligation , or duty of parents to provide their children ; for the like reason , the same complaint was competent to the fathers , against the testament of their children , but because that remeid might have been eleided , by exhausting the heritage by legacies , whereby the institution of the children might prove ineffectual , for their provision : therefore , the law allowed children a legittime portion , being the sourth part of the heritage ; which that , it might extend to all heirs . falcidius was the author of that noble law , restraining legacies , so that there might remain a portion to the defuncts heirs , which law and portion , in honour of his name , was called the falcidian law , and portio falcidia , whereby the fourth part of the free goods of the testator , remained always secure against legacies , and when a new subtilty was invented , to frustrat the falcidian law : by taking away the heritage , not directly by legacies ; but indirectly by trust or fidei-comisses . trebellianus procured that ordinance of the senate , called senatus-consultum trebellianum , whereby that portion called also trebelliarica , should remain safe against fideicommissarie trusts : and though it be the common opinion of the doctors : that if the defunct expressly prohibit the heir , to take the benefit of his falcidia or trebellianica , they will be thereby excluded , yet the common opinion , is that it cannot be extended to children , as to their legittime , whom the law hath fullie secured , either by ordaining them to be institute heirs in whole , or at least in a fourth part ; which is their natural , or legittime portion : and if they be institute in less , they have right to the supplement of their legittime portion , or otherwise they must be expressly , and justly exheredat , and they have the common benefit of other heirs , of their falcidia , or trebellian , which the testator cannot frustrate , with out express prohibition . . if there be no lawfull testament by thelaw of the twelve tables ( which is the ancient roman law , and in comparison of the pretorian , or imperial law , is only called the law , or the civil law ) the succession of defunct , falleth in the first place to the defuncts children , or nearest descendents without distinction of any lawful children , though adopted , or posthumus , or though of diverse lawful marriages ; whether male or female : so that they remain in the defuncts familie , and in his paternall power , for these who are emancipat , and demitted from the familie , and from under the paternall power , they are either really or presumptively provided , and so have no share of the succession ( of this paternal power , and emancipation , see before , tit. obligations of parents ) these in the familie were called haredes sui & necessarij ; because they were ipso facto heirs without solemnity or entrie ; among these , the right of representation had place , so that for example , the grand children succeeded with thechildren but not equally , et per capita ; but per stirpes : for thegrand children had but the share of their defunct parent equally among them , and so of all other descendents being in the familie . the pretors did in a part alter this , and brought in the children or issue emancipat with those in the family , without distinction , providing the emancipat brought in their goods , and adjected the same to the inheritance , per collationem bonorum ; yet because only the law , that is , the ancient law , could make heirs : the emancipat were not called heirs , but bonorum possessores . the pretorian law did also take off the necessitie , and dammage of the succession , that none might be necessitate to be heirs , yea all heirs had the benefite of an inventar , being timeouslyand duelie , made beyond which they were not lyable for the defuncts debts . . the next degree of succession , by the ancient roman law , was failing descendents in the familie , the nearest agnats of the same degree succeeded ; but there was no succession ofparents , nor of cognats related by the mothers side ( here mother comprehends grand-mother and all other ascendentsof that kind ) so the next degree was of brethren and sisters , &c. . the pretorian law did also emendat this , and first brought in the fathers , with the brothers and sistersgerman , or of both bloods : and thereafter the tertullian senatus-consult , failling the fathers , brought in the mother with the sisters in their share , but not with the brothers german , who if there were no sisters german , excluded their mothers totally , and , if for example there were a brother german , and a sister german , the father being dead , the brother had the half , and the sisters half , was devided equally betwixt her and her mother , and so the mother is preferred to the fathers father , and to the defuncts brethren , and sisters of one blood . failling those of this degree , the brothers , and sisters by the fathers side , and these failling the nearest degree of agnats , in which the paritie of reason inferreth , that as in brothers and sisters , so in other collateralls , these of both blood make a nearer degree , then these of one blood . failling all these , the pretorian law admitts spouses to be heirs , each to other , the husband to the wife , and the wife to the husband , and last , the fisk takes place as last heir . . but the. emperor justinian , by the novel constitution , . cap. . took off all destinction of agnats , and cognats , and brought in the mother , equally with the father : with what reason or approbation , we have touched before . this is the sum of succession , by the roman law , wherein there is no 〈◊〉 〈◊〉 〈◊〉 , oveables , or immoveables , and which takes up no small part of the bodie of the law , and writings of the lawyers ; wherein to insist particularlie , would raise a great bulk , unnecessar for our purpose : whereunto , we conceive this summarie may suffice . but while the roman empire , and laws were trampled down , by the northern nations , the feudal law arose , and doth yet continue with the civil law of the romans , and other nations , by which there is a great distinction introduced , in the succession in moveables , and in lands , or immoveables ; which are now of a feudal nature : we shall therefore go on to the common feudal customes . . the feudal customs are locall , and it is hard to find a common rule therein , for succession , which is variable , according to the diversity of place only , if we call to mind what was formerly said , title , infeftments of the distinction of ancient and proper fees and of declining , and improper fees : the nature of proper fees , wil hold forth the matter of succession therein for a proper fee being freely granted by the superior to his vassall for military service , the vassalls person being chosen by the superior , and a speciall trust reposed in him , and the like hope of his issue ; patrene sequitur sua proles : it was at first so simplie done , that the entering of the vassall in possession , in 〈◊〉 of his peers , was a sufficient constitution of his right , and the investiture signified , then not so much the act constituting , as the write evidencing the fee , in the which case from the nature of the right , it is consequent , first that none should succeed in the fee , but such as were fit for the militarie services , and so women , and their issue were utterlie excluded ; and all the males succeeded equally . . in proper fees , none could succeed but the lawful issue of the first vassall , whose person and issue was specially chosen , among which , first the male issue of the vassall who dyed last infeft , according to their nearness , do succeed with the right of representation , and so not per capita , but per 〈◊〉 ; next unto the descendents among the collateralls , brothers and their male issue : and among these , the brothers german , and their issue , exclude the brothers by one blood ; and after brothers , father brothers and their male issue ; and so other agnats of the last deceased being , alwayes of the male issue of the first vassall , which being extinct the fee ceaseth , and returneth to the superior not as the vassalls , but by vertue of that directum dominium , which still remained in the superior , in this course of feudall succession , there could be no place to the vassalls father , or other ascendents , because if the fee were a new fee , or conquest by the son , his father nor his brethren could not succeed , as not being of the issue of the first vassall : and if it were an old fee , not purchased by the son , but whereunto he did succeed , it doth necessarly presuppose the death of the father , and other ascendents , to whom the son could not be heir , nor succeed , till they were dead . but when by the course of time , fees declined from the proper nature of ancient fees , and the investiture did express the tenor , and speciall nature thereof , the tenor of the investiture became the first rule of succession in such fees , and came in place of the testament or will of the defunct ; for seing the vassall could not alter the succession , without consent of the superior , he could not effectually test thereupon . . in the next place , what is not the express will of the vassall , and superior by the tenor of the investiture , is regulate by their conjectured will , from the nature of the fee , and propinquity of blood : so if the fee be originally granted to a woman , her issue 〈◊〉 succeed , as well as the male : or if the reddendo be not militarie service , but money , grain , or services competent to a woman , or manual services , wherein there is no choise of persons , as tilling , &c. and so generallie fees holden blench or feu : in all these woman may succeed , because they are not excluded by the nature of the service . . if the fee be granted to heirs whatsomever , not only doth the issue of the first vassall , but all other his lawfull heirs , or the lawfull heirs of the last deceassing , vassall , whether of the issue of the first vassall , or not , do succeed : and now fees being ordinarily acquired by sale , excambion , or the like onerous title , feuda ad instar 〈◊〉 sunt reducta ; heirs whatsomever are commonly exprest , and if they were not , they would be understood , for that which is ordinar is presumed . . but now custome hath altered the course of feudall succession , and given the prerogative of primogeniture , to the eldest male of the nearest degree to the defunct vassall ; who excludes not only the females of that degree , but the males also , and their issue ; not only among us , but in england , france and most other nations , and therefore before we descend to our own customes , it will be fit to consider the justice , and expediency of this common custome in feudall succession . the lawfulness of primogeniture , will be easily evinced from what hath been said already upon succession , wherein the will of the proprietar is the rule even in equity : and though he be naturally oblidged to provide for his own , that personal obligation reatcheth him , but not the inheritance , nor doth it oblidge him to make these to succeed , but to give them competent provisions , and therefore the judicial law which is the positive law of god ; evidenceth sufficiently , the lawfulness , and in some cases the expediency of altering the natural course of succession , and therefore not only the male issue , is thereby preferred to the female ; all the females are utterly excluded , but only daughters , that the inheritance may remain within the tribe , and the preference of males , is because femoles are less fitted for management of lands , and therefore are to have a portion , which the judiciall law calleth the dowry of virgins . the expediency of primogeniture , is partly publick , and partly private : the publick expediency , is that the estate of great familyes , remaining intire and undivided ; they with their vassals and followers may be able to defend their country , especially against sudden invasions , for with us in france polland , and many other places , the great families are the bullwarks of their countrey : having 〈◊〉 to maintain them selves , and their followers , for some time without standing armies , constant pay , and subsidies . the private expediency , is for the preservation of the memorie , and dignitie of families , which by frequent division of the inheritance , would become despicable , or forgotten . primogeniture taketh place in germanie , and france , in proper fees like unto our ward-holdings , but not in allodialls and lands holden freely , or for cane or rent , gudelinus , de jure novissimo , lib. : cap. . relateth , that in many of the german and french provinces ; the male gets two third parts , and the females one , in the other provinces the children of the first marriage , succeed in all the lands the parents had , during that marriage , and so in order , the children of after marriages ; and in other provinces and cities , the youngest son succeedeth in all , excluding the rest , and generally , bastards are not admitted , even to the succession of their mothers , and in england , though primogeniture , have the prerogative by the common law , yet it hath an exception of the custom of kent , where primogeniture hath no prerogative ; and therefore that custom is called the gaball kind of kent , which is as much as to give to all the kind . the customs of england , and germany , are contrary in this ; that in germany , parents come in the next place after descendents , and exclude brothers , and sisters , and all other collateralls ; but in england , parents do never succeed ; so if the defunct have no issue , brothers nor sisters , nor their issue , the fathers brother succeeds , and excluds the father , though his relation be by the father , and much further distant then the father : and it sometimes falls out , that the uncle succeeding , dying without issue , the father succeeds his brother , and so accidentally , and mediatly to his own son. . to return to our customs in succession , in respect of the matter , it is divided in two branches , the one is of moveables , the other of immoveables , which do as much differ , asthecustomes of diversenations ; the successor in immoveables doth only retain the name of heir , and therefore immoveables are called heritable rights , and that part of the moveables , which belongs to the heir , is called heirship-moveable . the successor in moveables , from the office of executing the defuncts will , express , or presumed , is called executor . we shall here summarily , at one view , set forth the whole matter of succession with us , which we shall more fully , and distinctly follow , in the ensuing titles . heirs in law are called universal successors , quia succedunt in universum jus , quod defunctus habuit , they do wholly represent the defunct , and are as one person with him , and so they do both succeed to him active , in all the rights belonging to him , and passive , in all the obligations and debts due by him ; and when they do not orderly enter , they become successors passive , lyable to the defuncts debt , but not heirs active , having power to claim his right , till they be entered according to law : other successors are called singular successors , as assigneys , purchasers , but heirs only are universal successors : and now , when heirs are of divers kinds , as some in moveables , some in lands , and other heritable rights , and of these ac cording to the investiture , some succeed to lands provided to heirs of line , some to lands provided to heirs male , some to lands otherways tailzied , in all which some heirs succeed alone , and in solidum , some succeed in parte & pro rata , yet all may be said to succeed in universum jus quod defunctus habuit , by universum jus , the whole right , not simply , & in solidunt , but the whole rights of such a kind , either in solidum , or at least pro rata parte , as he who succeeds in a half , or third part of all the defuncts rights active & passive , succeedeth in universa & singula jura , in all and every right , thought not in totum & solidum , the whole or every part of every right . as to moveables , we shall not repeat , what hath been said , title real rights , of the distinction of heritable , and moveable rights , whether goods , or moveable debts ; but shall only hold forth , what becometh of moveable rights , after the owners decease . and first , if the defunct be married , there was thereby acommunion of goods , betwixt the defunct and the other spouse , which being disolved by death , the surviver may withdraw their share , which share is estimate by the condition of the familie at that time ; for if in the family there were a husband , a wife and children , not forisfamiliat , the wife her share is the third ; but if there were no children unforisfamiliat , the wifes share is the half , which is not properly a succession but a division . . the first degree of succession , in moveables with us , is by the will of the defunct , by his testament , or codicil , whereby the defunct may name executors , and dispose of his moveables , either in part by particular legacies , or in whole , by an universal legacie , whereby , in effect the universal legatar is institute heir in the moveables , and if the executor nominat , be not also universal legatar , he hath but one office , and is not heir for himself , but in name , and to the behove of the legatar , and hath but fidei-comissum of the moveables . these legacies , whether particular or universal , doth immediately transmit the right to the legatars , and their successors : the solemnities of testaments , or legacies are very plain with us , but we shall leave them to the title executrie . the will of the defunct is restrained with us , in three cases , the first is , bastards cannot at all test , or leave legacies , unless they be legittimat or have power from the king of making testament , or have lawful children . . a father is bound up in respect of his children in his family , which are not forisfamiliat , and provided for , these have necessarily their portion natural , and bairns part of gear , wherefrom their father cannot exclude 〈◊〉 by 〈◊〉 or otherways , as by donations , in contemplation of tion to a moveable band granted on death-bed , was found null , as to the relict , and bairns part , spots . assignations , margaret pyrie contra ramsay . yea , it was found , that the gift of money by the defunct , out of his own hand , on death-bed was null as to them . ibid , mr. andrew moncrieff contra mr. archibald moncrieff . the like of an assignation , to a confident person , to the behove of the defuncts bairns , which was found not to prejudge the relicts third , durie , july , . . cant contra edgar . and therefore , a father hath only power to dispose upon such a part of his goods , which are thence called deads part , which if he have a relict , and bairns in the family , the bairns part is the third , the relicts part is also a third , and so the defuncts part is only a third , but if there be no relict , then the bairns part is the half , and the deads part is the other half ; but if there be neither wife nor bairns , the defunct may dispose of the whole , as persons never married , or wives upon whom there is no restriction , though they have husband or children , for they may dispose of their share of the husbands moveables , or if they acquired , or succeed to any moveables , in viduity they may iniurley dispose thereof , though they have children . if his legacies exceed his own part , then they abate proportionally , unles there be a preference granted by the testator , or a priviledge , whereof i know none with us , for even a legacie , ob pias causas , viz. a mortification to a kirk , was found to have no priviledge , but it , and other legacies suffered proportional deduction , seing they exceeded deads part , durie , july . . doctor monro contra scots executors : the reason of this restriction is , that natural obliegment for provision of children , of which before , it is extended only to the immediate children , and not to grand-children , neither doth it restrict the mother , but only the father . . the third restriction of the defuncts will , is in favours of their heirs of line , for heirs having the sole interest in heritable rights , are by our custome justly excluded , from coming in with other children , in moveables , except that which is called heirship-moveable , which is the best of every kind of moveable , wherein the defuncts will cannot prejudge the heir . the second member os succession in moveables is , from the intestat ; so that failing the defuncts will , with the restrictions aforesaid , the nearest of kin have interest , both in the defuncts moveables , and office of executrie , and though they claim not the office , yet have they 〈◊〉 right to the goods , leaving a third of deads part to the executors , 〈◊〉 administration of the office . these nearest of kin , take place all in 〈◊〉 all the nearest degree , male or female , come in equally , and there is no right of representation in moveables . the first degree is children , male or female , with whom grand-children come not in by right of representation , in place of their defunct parents : so children have an interest in their fathers moveables , viz. their bairns part , wherein their father cannot prejudge them , and their interest , as nearest of kin ; whereby they succeed to the deads part , in so far as intestat , next unto children , are grand-children , or any descendents of the nearest degree . next unto these , are brethren and sisters , wherein , brethren and sisters german , or by both bloods , exclude these by one blood. next unto brethren and sisters , are there descendents , in the nearest degree , without representation . and last , are the nearest degree of agnats , male and female joyntly , without representation : if there be no descendents , or agnats , in the case of bastards , who can have none , or others , who happen de facto , to have no children , or agnats , their goods become caduciary , and are confiscat to the king , as last heir or by reason of bastardry , of which before , title confiscation . in the succession of moveables , the same goods , or debts , are not in all cases accompted moveable , since the act of parliament . cap. . whereby bands , bearing annualrent , which before in all respects , were heritable , by the destination of the annualrent , ( which , being perfected by infeftment , is an immoveable , and heritable right ) are declared to fall under executrie , and so to be moveable . and yet by the said statute , the relict , and fisk , are excluded . the reason exprest in the statute , is , because the obliegment upon the debitor , to pay annualrent , is , for the profit of the creditor ; and not a destination of infeftment of annualrent , in favours of the heir , to exclude the bairns : and therefore such clauses make not such sums heritable , as to the bairns , and nearest of kin : unlesse they bear an obliegment to infeft the creditor in land , or annualrent : in which case , they are properly heritable , and belong only to the heir ; but if not , the same belongs to the bairns , and nearest of kin , excludendo fiscum & relictam : whereby there 〈◊〉 a different division of moveable sums , falling under executrie : one of such as were moveable before the said act , which , if there be a wife and children , are divided in three : whereof the bairns , is a third part , and the deads part a third . another in the testament , of bands bearing annualrent , which if their be bairns , is devisible in two parts whereof the one half is the bairns part , and the other half the deads part , and the relict hath no part , being excluded . so that in case of escheat , such sums are not moveable , nor fall not under escheat . yet , if such debts become simply moveable , by a requisition or charge , or by the death of the debitor , or creditor , before the term of payment of annualrent : or , otherways they remain in the ancient condition . and the statute doth not exclude the fisk and relict . but where a charge could not be given through the debitor , or creditors death , and there was no requisition provided , and decreet for payment , was not found to make the samine meveable , as it would have been , if the band had been heritable , by a clause of infeftment . and that because , by a posterior band of corroboration , for the same sum , executors were excluded , which no charge nor requisition doth alter ; but it is still presumed , that the debitor would re-imploy the sum , in the same way , to his heirs , excluding executors . and therefore , a process and decreet for payment , was not found to make it moveable , though these would make it moveable , as well as a requisition or charge , if it had been heritable , by a clause of infeftment , july . . crystie contra crystie . it is also consequent from the said statute , . that such bands , bearing clauses of annualrent , may be exhausted by the debts , due by the defunct , bearing clause of annualrent . . it is consequent , that the executor , will get no relief against the heir , of debts , bearing clause of annualrent , without clause of infeftment ; in so far , as there are such debts in the executry , but the heir will have relief thereof , against the executor . . it followeth , that debts , bearing clause of annualrent , and no clause of infeftment , will not exhaust the relicts part ; because , as she is excluded from any share of such debts , due to her husband ; so she must be free of any such debts due by him , as was found , december . . magaret mckenzie contra robertsons . . succession , in immoveable , and heritables rights , proceed wholly in a different manner . for succession , in moveables , is more near to the course of natural succession , and to the civil law of the romans , especially their ancient and midle law ; but the sccession in heritable rights , aggreeth more to the recent feudal customs , of most nations , whereby primogeniture is established , for the honour and preservation of noble families , and in them , for the good and safetie of their kings and countryes . . succession , in immoveables and heritables , do mainly differ , first , that in moveables , the expresse will of the defunct , by his testament and legacies , and donations , in contemplation of death , have the first place , but in heritable rights , they have no place at all ; yea , no personal contract , or obliegment of the fiar , can have any effect in prejudice of his heir , to take from him any part of the heritage , directly or indirectly , by legal pursuits thereupon , if the foresaid personal right , or contract was done in lecto aegretudinis upon the fiars death-bed : and though the same disposition , or contract , were made in the fiars health , or liege pouste , it doth not alter the succession , unless it be in the investiture , though , as being of it self , or having in it virtuallie , a personal obligation , it may by process compell the fiar or his heir , to denude themselves , and to obtain new infeftments , conform thereto , as if by contract , any partie may be provided , to be the contracters heir , in whole , or in part ; his provision doth not make that partie heir , in any right , whereupon infeftment hath followed , which only properly are heritable rights : neither can that partie be served heir of provision , to the contracter thereupon , yet the contracter may be compelled to take his right accordingly to himself : and these heirs of provision , which if he have not done , his other heirs may be compelled to enter , and to denude themselves , in favours of that partie provided to be heir , conform to the contract ; but dispositions , obligations , or contracts of any heritable right , on death-bed , are null , and reduceable , in so far as may prejudge the heir . . the priviledge of heirs , not being prejudged , by their predicessors deeds , done on death-bed , is , as most of our laws , by ancient custom , time out of mind , and not by statute , or written law , for , though the books , called regiam majestatem , treat thereof , yet these are no part of our law , but have been compylled by some stranger , who hath not fully known our law , but by mistake , hath resolved most cases , by the customs of other nations , especially of england . the reason of this custom , may be conjectured not only from the nature of feudal rights not disposable by testament , but only by investiture , but also for publick utility , because persons on death-bed are weak , the mind being easily affected with the trouble of the bodie , and so is easie to be wrought upon by insinuations , or importunities , to do deeds contrary their interest , and former resolutions , especially by the popish clergie , who , having , for their own corrupt ends , forged puragatory , and prayers for the dead , their power of indulgence , and prayers for the dead , their power of indulgence and pardon of sins , did thereby deceive the christian world , and obtained upon death-bed so large donations to their clergie , to the prejudice of the donators lawfull heirs which therefore our ancient custom hath wisely provided against . . the main difficulty is , in what cases the law accounteth parties to be on death-bed , or when they are in health , and liege poustie , for these are the two opposite terms of law , liege poustie or death-bed ; for clearing whereof , these points must be considered . first whether it be necessar to prove that the defunct before the deed in question , had contracted disease , or become sick , and whether it be necessar to condescend and instruct the speciall kind of sickness , or that it was morbus sonticus , or a disease affecting the whole bodie and brain , or if the keeping the house , and the parties dying before he went abroad , be sufficient to infer presumptive , that he had contracted the disease whereof he dyed , so soon as he keeped the house . . whether a contrair probation of the parties being in health , be sufficient , in that he was of a sound judgement , and memorie , and kept the ordinar time of putting off , and on his cloaths , and of eating and drinking , as when he was in health , or writing securityes , that require clearness and distinctness of mind , be sufficient , or if doing his ordinar affairs , making bargains , and accoumpts , trysting for others , or himself , playing at cards , or other games within doors , giving evidence of being merrie , be sufficient to instruct health , and liedge poustie . . if sickness contracted , be presumed or proven , whether there be necessity to prove the continuance of the sickness till death , or that the defunct died of that sickness , or if the sickness once contracted be presumed to continue , unless convalescence , and recoverie of health be proven . . whether liedge poustie , by convalescence , be sufficiently proven by the defuncts going to kirk and marcat freely , without help : and whether it be sufficient to go to the marcat place , or to the kirk , though there be no convention , nor congregation there ; or whether it be requisite , that going to kirk and marcat , be when the congregation is conveened , or in mercat time . . whether in that case supportation being proven , it is more pregnant and preferable to the probation of walking freely , and be what acts supportation is inferred ; whether by helping the defunct by his oxter , by his elbow , or by his hand , be sufficient , or if helping him up stairs , or down stairs , to and from his horse , or upon a ragged way , or whether being helped by a staffe , will inferr supportation . . whether going freely to kirk and marcat unsupported , may be taken off by any probation , that notwithstanding thereof the sickness did continue , whereof the defunct dyed . . whether convalescence and liege poustie , may be proven by any other acts , then going unsupported to kirk and mercat , or if equivalent acts may be sufficient , and if going abroad about the house unsupported be sufficient . death-bed is of so great importance with us , as reaching the estate , and heritage of parties , that the lords have been very careful for clearing and fixing the same , that it may not be under uncertain conjecture or probation , and whereas by an ordinar act of litiscontestation , the pursuer might prove his reason of death-bed , by any two habile witnesses , or the defender might in the same manner prove , the going abroad to kirk and mercat , or acts equivalent in defence , or the persuer might prove supportation , by way of reply , and all by any two habile witnesses : the lords have taken a farr more secure sway , to allow probation to be adduced for either party , concerning the condition of the defunct , as to sickness or health , and concerning his going abroad thereafter , and the manner thereof , whereby neither partie hath the choise of the witnesses , to be in a capacity to influence them , but either partie adducing witnesses , there is scarce any one unexamined , who knew any thing of the matter , and so the truth comes to clear and evident light , and which probation stands in place of litiscontestation ; for albeit it bear to be before answer to the relevancie , and that after the probation is closed , they are permitted to resume the debate , as to the relevancie , as to such points as they desire chiefly to be noticed , and wherein they do believe , that sufficient probation is adduced ; which probation is closed , and may not particularly be debated upon , how farr any point is proven , which is only proper to the lords , to consider with closs doors yet , no new litiscontestation can be made , or any new fact admitted to be proven , after the probation , before answer is concluded and advised , or renounced , unless the lords , ex officio & proprio motu , for clearing of any part of the probation that remains dubrous , require further , as they may do at the advising of any cause , even upon litiscontestation ; as was found upon decem. , and . . clellands contra clelland , of falskin . to come then to the points proposed to be cleared , for the first point , whether keeping the house presumeth sickness contracted , or if sickness must be proven , and what kind of sickness . albeit , the ordinar stile of the reason of reduction bear , thatbefore the deed in question , the defunct contracted the mortall disease , whereof he died ; yet it is not necessar to alledge or instruct , that it was morbus sonticus , january . . schaw contra gray . neither that the defunct was bed-fast when the deed was done , feb. . . robertson contra fleeming . and albeit , the presumption of the contracting of sickness , from his keeping ofthe of the house , be not alwayes sufficient alone , yet it is of great importance , and a small probation of sickness with it , will suffice ; otherways , it were easie to keep all access from the defunct of indifferent persons , that might prove his condition , and none be admitted , but contrivers , and concurrers in the deed : and therefore a deed done be a man inclosed for the plague , was found reduceable as done on death-bed , as being done after the defunct was inclosed on suspition of the plague ; and dying before he came out , without necessity to prove he was sick or infected when , thedeed was done , seing there was no further access for fuller probation , february . . jack contra pollock and rutherfoord . this presumption doth withstand a far stranger opposite probation of health , when the defunct went not abroad as was found in the said ease , robertson contra fleeming . that it was not relevant to eleid death-bed , that the defunct was in strength and ability , to have come to kirk and marcat , nor that the defunct put on his cloaths daily , and that any disease he had was but lent , and not impedimentum rebus agendis ; as was found in the said case , schaw contra gray . neither that the defunct lived a year and a half after the deed in question , and was only hindered to come abroad by a palsie , which troubled his walking , and made him not come abroad ; albeit he did all his affairs within doors , as formerly , july . . cranston riddell contra richardson . and albeit , there be remembered a case of a disposition made be david graham merchant in edinburgh for a pious use to the 〈◊〉 that his having on his cloath the contriving and writing the whole disposition himself , was sufficient to eleid death-bed and to instruct health ; yet the circumstances of that case are not fully known , not being observed by any of the lords , and the decision hath ever been decryed since . but in the case of the creditors of the lord balmerino , against the lady couper , for reducing of the disposition of his estate to her , which was decyded june . . it was not found relevant to instruct liege poustie , that after the disposition , my lord made bargains and counts , seemed to be merry and laughed , keeped on his cloaths , kept the table , came from his chamber to the hall , whisled to himself , and danced , albeit , no particular disease , but only sickness was proven . and in the foresaid case , clelland contra clelland , health was not found proven , albeit , soundness of judgement and memory was proven : and that the defunct did not only all his own affairs , but trysted for others , and that he lived two years and a half , after the disposition , and was in like condition , as he had been seven year before ; so that it seems , that if the contracting of sickness be proven , no contrary probation of any acts within doors , will be sufficient to eleid the reason of death-bed ; by all with decisions , the second point proposed is sufficiently cleared . as to the third point proposed , whether sickness being proven once contracted , the countinance thereof till death must be proven . it is commonly held that if it be proven sickness was contracted , and that death followed , probatis extremis presumuntur media ; and sickness once being proven is presumed to continue , otherways it were scarce possible by a positive probation to instruct the continuance of the sickness till death , and this is only presumptio juris : laying the burden of probation upon the party that alledges convalescence . the fourth point for proving liege poustie , either that there was no disease , or by convalescence , if there had been a desease ; by going freely to kirk and mercat unsupported , is the ordinar and unquestionable defence against death-bed , upon which law and custom hath pitched , as the most publick , and sure evidence of health andconvalescence : so that albeit , the going to kirk and mercat , were but of design to validat thedeed , yet if the attempt , be perfectly made out , it would be sufficient ; and much more will be allowed , when the going abroad is principally to hear sermon or for devotion , or about affairs to the mercat : in which case , taking the party by the hand , or helping him at a ragged ground , would not inferr supportation , there being no design of cautiousness in the partie , but useing his ordinar way ; as if a gentlewoman accustomed to by led be the hand , should go so led to the kirk or mercat : by reiterated acts it might be sufficient for inferring health or convalescence , but if it did appear to be upon design , she behoved to forbear the prerogatives of herquality , and go freely alone without being led , or if an old man , infirm by age , or any defect in his legs or feet , not arising from inward sickness , should be helped in difficult places , in reiterated acts in going to kirk and mercat : without design . and as to that qualification , whether it be sufficient to go the kirk or mercat place , or at the congregation orgathering at the mercat , i have not observed it perticularly debated or decided , but that parties when they went to the kirk , ordinarly went to the prayers , and certainly it is the most secure way , that the going be to the congregation , or meeting at the mercat , otherwayes pick't out witnesses , may be chosen to wait upon the party to the kirk or mercat-place , which in many cases will be very private , and will not expose the party to publick view . the fifth point concerning supportation , is the ordinary reply against going abroad , and as hath been said , it is ever to be considered , whether the act appear to be of design or not , and that if the acts be reiterat , and of course nothing that was ordinar for the defunct in taking of help , when he was in unquestionable health , will import supportation ; and therefore in the case , pargilleis contra pargilleis , decided febr. . . it having been proven that the defunct was a very old man , and that after the disposition quarelled , he had severall times come to calder , and done affaires there : and that he went up from the merca-place , in the mercat time , to the place of calder , being a steep way , borrowed money from the lord torphichen , told and received the same , which was found sufficient ; albeit , he was helped up stairs , and down stairs : and was helped to his horse , and from his horse , and his man led his bridle , and that he had a staffe in his hand . but when the going to kirk and mercat , is upon design , the least defect in the exact performance will render it inefectuall , and so in the case of the disposition made by the lord couper , it having been evident that it was , of design to validat the disposition , that the next day after the disposition , my lord went to the mercat at couper , the laying hishand upon thomas ogilbies hand , who walked by him , and that only at someimes , and in ragged places where he was accustomed to take any walking by him , by the hand before : yet seeing he put nature to the outmost reach , to manifest health by that act , and could not fully perform it , it was not found sufficient ; but he was found to be supported , and in the case , clellands contra clelland of faskin , the defunct finding that his disposition was quarrelld and stopped at the exchequer : as being done in lecto ; immediatly after he caused make a chair , with a fixed 〈◊〉 to bear his feet , in which he was carried with men till he came within two pair or thereby to the kirk , and thence he walked to the kirk , but there was no congregation : and returned back to the chair , and so was carried home , and the witnesses that were about him , being examined , whether he walked freely , or with help , many deponed that severall persons having walked close about him , they could not distinctly know ; and severall witnesses having deponed , that he walked freely without help , and two having deponed that he was helped by themselves , his so going abroad was not found sufficient , neither was his being carried in the chair found equivalent , as if he had ridden upon his horse ; because a sick-man might have required help even upon horse-back , and would not have been able to have ridden freely without help , and yet might have been able to sit in a chair : in this case a lso it was found that supportation was more positively proven ; albeit , be fewer witnesses : the witnesses themselves being supporters . as to the sixth point proposed , whether going to kirk and mercat unsupported , inferreth health , or convalescence , presumptione juris , & de jure , so that a contrary probation , that even then he was sick , and so continued tiil ideath , hath not yet been destinctly decided : albeit , in pargilleis case , it was not regarded , that the witnesses deponed , that pargilleis , when he came to the mercat , appeared sick , and continued sick thereafter ; neither can any conjectural probation , in such case be respected ; because squalor morbi , doth ordainarily remain , afterconvalescence , which , if it were 〈◊〉 , would render that defence uncertain , and conjectural ; so that there can be no question , unlesse the probation of the being then sick , were positive , and pregnant , as if a person in a hot fever , wherein there is ordinarily strength enough , should come abroad to a mercat , the foam , and furie of the fever continuing in his face , or if the partie did groan , and bemoan himself , as sick persons use to do . for the last point offered to consideration , whether convalescence , can be proven otherways , then by going un-supported to kirk and mercat . i have seen no decision , whereby death-bed hath been elided , upon such equivalent acts ; but on the contrare , it was found , in the case of the lord salton , that his coming to a green , near his house un-supported , and standing there , till he saw men play at foot-ball , was not sufficient : and in coupers case , his coming frequently with strangers to their horse , and sometimes going up and down stairs un-supported , and oftimes going out , and walking in his garden , and once to a house , a quarter of a myle off , and all un-supported , were not found equivalent , to going unsupported to kirk and mercat . and in clellands case , his going several times to his barn , and to some trees , a pair from his gate un-supported , were not found equivalent to going to kirk and mercat . yet it cannot be doubted , but there may be acts equivalent : as if any person should go a far journey , but the equivalence must not stand in this , that the defunct did acts , requiring as much strengh , as going to kirk and mercat . in respect of this difference , that going to kirk and mercat , exposes the partie to publick view : whereas other private acts about his house , may be proven by a few persons , prompted for that purpose : which probation cannot be ballanced with any other ; for clearing , that there was support , or help , as in the case of going to kirk or mercat , or going a long journey , where they may be had many un-prepossessed witnesses . death-bed was not found elided , by ryding on horse-back , a journey , of about sixteen myles , seing the party had a man , who rode behind him , and for some part of the way , was tyed to the man , which was found to be supportation . nor was it respected , that long before his sicknesse , he had in his testament left the same things in legacie : and therefore was not prevailled upon , with importunity ; seing his purpose might have altered , after that testament , december . . william lockhart contra cromuel lockhart of lie. . as to the extent ofdeath-bed , it doth not only annul dispositions oflands , but assignations to heritable bands , feb. . . donaldson contra donaldson . or to a band , moveable in it self , becoming heritable , by a posterior obliegment , to imploy it for annualrent , spots , juramentum calumniae , margaret arthur contra james watson . yea , it will annull any band , though moveable , in so far , as thereupon the heritage may be appryzed , or adjudged , jan. . . schaw contra gray . but an heritable sum being payed to the defunct , on death-bed , his discharge thereof was not reduced , ex capite lecti , though the money was instantly given away , after it was received , which was found valid , as a legacie , out of the deads part , march . . margaret broun contra thomson ; but such deeds on death-bed , will not prejudge the relict , or bairns part , but is null as to them , as well as to the heir ; as hath been now shown . death-bed was extended aganist bands , though granted by a father to a son , having no other provision , which were not sustained , though ossered to be restricted to a competent portion , due naturally by parents , to children , july . . cranston riddel contra richardson ; yea , death-bed was found relevant , to reduce a disposition , in favours of the disponers only daughter , in prejudice of the brother , and heir male : though the disposition contained a power , to alter the tailzie , or dispone at any time in his life , but bore not etiam in articulo mortis , feb. . . adam hepburn of humbie contra hellen hepburn . but where the disposition was neither to an heir male , nor of line ; that clause was sufficient , to 〈◊〉 the disponer , on these terms , to burden , though it mentioned not death-bed , or in articulo mortis , june . . douglas of 〈◊〉 contra douglas . and death-bed was not sustained , to reduce a disposition , by a father to his son ; seing the father reserved such a sum , to be at his disposal in his disposition to his appearand heir , though it mentioned not , at any time in his life , june . . george seaton of barns contra charles seaton . and now , since the lords have frequently decerned aliment to bairns , against the fathers heirs , having competent estates , it is like the lords will allow , all provisions on death-bed , in so far as they may be competentaliments . holograph writs without witnesses , prove not their own dates to have been prior to the subseribers death-bed , and therefore , they are presumed to be on death-bed , withoutwhich , that priviledge would be evacuat ; it being as easie to induce a sick person to antidate a writ , as to prejudge his heir : but if it be proven by witnesses , that the writ was seen , and delivered , before the granter contracted the sickness , whereof he died ; or if it was subscribed before his sickness , though not delivered ; if it was in favours of his children , or had a clause dispensing with delivery , or did reserve his liferent : the presumption to have been done on death-bed , will be thereby elided . but a disposition to neices , having been proven , to be subscribed , before the subscribers sickness ; but blank in the name , was reduced , as upon death-bed , because the name was not filled up : 〈◊〉 the writter did depone , that it was delivered to him to fill it up , with the neices name , seing he filled it not up , till the granters sicknesse , july . . birnies contra polmais and brouns . but death-bed , was not found to hinder the recalling of a disposition , made by a grand-father to his oye , and delivered to a third party in leige poustie ; if it should appear , that the delivery was not simply , to the behove of the oye , whereby it became irrevocable ; but conditionally , that the disponer might recal it ; for eviden ce whereof , it was proven , by that third parties oath , that the defunct , on death-bed , called for it , and he delivered it ; and that the defunct , on death-bed , delivered two blanks , for dividing the right , in the first disposition , which he delivered , with his said first disposition , to a nottar : and ordered the filling up of the one half to the heir , the other half to a second son , but for further clearing the partie , to whom the first disposition was first delivered , was appointed to be examined , what the defunct exprest , when he delivered the first disposition to him , decem. . . janet ker contra ninian ker. but thereafter , the third partie not being found to be examined , the lords found , that there being nothing proven , exprest at the delivery , the recalling , and the re-delivery did import , that the delivery was not simple , to the behove of the oye , making it irrevocable ; but that it was conditional , to be delivered to the oye , if the disponer did not recall it , and that his recalling of it for a special effect , to divide the same betwixt his heir and the second son , was effectual , both against his oye , to whom he first disponed ; and as effectual against his heir , as to the one half , albeit the revocation was ondeath-bed : seing thereby , the heir had no prejudice , but benefit , being formerly excluded , by the disposition to the oye , delivered in liege poustie , january . . inter eosdem . . but onlyfree deeds ondeath-bed , are thusreduceable , for if there were an equivalent cause onerous , which was truly imploy'd upon the defunct , or might affect the heir , it is not to the heirs prejudice , and so not reduceable ; thus the reason of death-bed was eleided , because the band quareled , was offered to be proven for furnishing , truly delivered to the defunct , july . . pollock contra fairholme . the like of a discharge , granted by a bastard , after he was infected of the plague , against the donatar of the bastardry , november . . marr contra auchinleck . in all these witnesses are sustained to prove the cause onerous in the write . and likewise a band granted on death-bed , being proven for a cause onerous in part , viz. droggs , and service to the defunct on his death-bed , was sustained pro tanto , and reduced for the rest , january . . schaw contra gray . but a liferent granted to a wife on death-bed , and a liferent-tack of teinds , of the lands liferented , were not reduced , hope teinds lady dunlap contra laird dunlap . the reason whereof is observed to have been , because the husband before sickness , was bound to infeft his wife in lands , or anualrent equivalent nicol. de haereditarijs actionibus inter eosdem . . asdeeds on death-bed , prejudge not the heir : so deeds in testaments , though done in leige poustie , have no more effect , then on death-bed and it is not habilis modus , by testament to dispone any heritable right , december . . colvin contra colvin : death-bed is not competent by exception , but by reduction , january . . grizell seatown contra dundas ; but in declaratorie or petitory actions , as recognition , it is receivable by exception , july . . barcley contra barcley ; or in a reduction it is competent by exception or reply , february . . barbara hoom contra bryson . a third difference is , that successors in moveables , or executors are not lyable passive , for the defuncts debts , in solidum , but heirs are ; though they farr exceed the value of the inheritance , without the benefit of an inventar . and though craigs opinion is , that heirs may renounce , even after their entry , if the heritage appear overburdened . the course of decision since his time hath cleared the contrary . . because heirs entring cannot renounce , there is annus deliberandi , allowed to them by law , in which they may abstain from entering , and immixing themselves with the heritage , and then they are not conveenable for the defuncts debt , upon charges to enter heir or otherwise , but if they enter , or meddle sooner , they are lyable : this annus deliberandi , is ordinarily accounted , a year from the defuncts death , which was so accounted though during a great part thereof , the heir remained unborn ; february . . knows contra menzies . but the contrary was found thereafter , that the year was accounted from the birth of the posthumus heir that the benefit of deliberation , might be profitable to his tutor in his name , spots , heirs , livingstown contra fullertown ; if the day of compearance be after the charge to enter heir , and after the year , it will be susrained , june . . dewar contra paterson : in which case it was found , that even actions real , as reductions , 〈◊〉 , &c. which require no charge to enter heir , are not competent within the year of deliberation , because in these the heir cannot defend , without the hazard of behaving as heir . . succession in heritable rights in scotland , are either by the will of the fiar , or by law , provistone hominis or legis . heirs by the 〈◊〉 of law , are called heirs of line , as befalling by the line of succession appointed , and known in law , all other heirs do cross or cut that line : and therefore are called heirs of tailzie , from the french word 〈◊〉 , to cut ; whence craig conceiveth this tailzied succession , hath been first denominat amongst the french and normands , and thence being brought into england , by the normand conquest , both in custom and name , hath been derived to us ; yet it is liker to have come to us immediatly from france , with which we keeped greater intercourse , then with england of old ; and our tailzies , at least to heirs male , are ancienter than the english , which begun but from the famous law , called the second statute of westminster , in the reign of edward the first , of that name of the normand line . heirs of tailzie are also called heirs of provision , which terms are equiparat , both comprehending all heirs , which are not according to the line or course of law ; and among others , heirs male , and heirs of marriage : yet our stile doth ordinarily distinguish them so , that where there is no alteration from the lineall heirs male , and where there are severall substitutions of certain persons , or lines , failling others by the tenor of the infeftment , they are specially called heirs of tailzie ; but when there is an alteration of the lineal succession , yet not simply to heirs male , nor to divers members of tailzie they retain the common name of heirs , of provision , as is most ordinar by contracts of marriage , providing lands to the heirs of the marriage , whereby the heirs lawfully procreat betwixt the married persons whether male or female do succeed ; so that daughters of that marriage will exclude sons of another marriage , or heirs of the bodie of the members of the tailzie , whereby there collateralls , or ascendants are excluded : and in proper tailzies , there are always divers lines and persons , male and female , substitute as members of the tailzie , as when infeftment beareth lands to be granted to the fiar , and to the heirs of his body , or to the heirs male of his body , or to his heirs of such a marriage , which failling to such an other person named , and to the heirs of his body , or to the heirs male of his body , &c. and so to a third or fourth , which all failling to the first fiar , and his heirs whatsomever ; or to return to the superior , or to any other person , and to their heirs whatsomever : and where such persons and lines are not substitute , it is not properly called a tailzie , but if it be simply to heirs male , it is so specially denominate ; all other heirs which are not heirs of line , or heirs whatsomever , retain the name of heirs of provision , the chief whereof , are heirs of a marriage , which failling the husbands , or wifes heirs whatsomever , in which there is but one blood or line , and not divers persons , and different lines substitute in these tailzies , the person nominat may succeed , and be served heir of tailzie , though otherwise incapable of succession as bastards , as hath been shown in the former title ; but the persons nominate are never the immediat and fast heirs in lands , but always the fiars heirs of his body , which failling , the persons nominate ; for if the heritage should be granted for example to john , and after his decease to william and his heirs : john would be thereby naked liferenter , and william fiar , who could not be served as heir to john : but if it were granted to john , and the heirs of his body , which failing , to william ; these failing , william would be served heir of tailzie to john : but this holds not in bands , or securityes for sums of money , for parents do srequently take thier bands and infeftments for security thereof , to themselves , they being on life , and after their decease , to such children nominat , yet the parents are fiars , and the children are but heirs substitute . so then , all succession with us , is either of heirs of line , male , tailzie or provision , heirs of line are also called heirs general , so also are heirs male , and of conquest , and these may be served heirs by a generall service : but other heirs of tailzie or provision , by investiture , cannot be served heirs , but by a speciall service , serving them to such particulars , whereunto they succeed , by infeftment or provision ; heirs of line are also called heirs whatsomever , because they are absolute without limitation , and in all cases where heirs whatsomever , is not specially altered by the infeftment rights follow the lineall succession , as among heirs male , the same course taketh preference , except that female heirs are excluded , as that first descendents , then brothers , &c. do succeed , and amongst heirs of marriages , the eldest son doth exclude the rest , and so in the members of tailzies . we shall not need here to debate the lawfulness , or expediency of constituting heirs male , or of tailzie , or of provision ; having now cleared , that the first ground and rule in equity , is the will of the propriatar , though he be personally oblieged to provide competently for his own , especially those of his family ; and therefore , though severall of our kings , in their generall revocations , have revocked tailzies , it can inferr no more , but a scruple in them , and a preserving of their power , against the course of prescription : but doth not infringe such rights being lawful in themselves . the expediency of tailzies , is the same with primo . geniture , to preserve the memory , and dignitie of families : but as primo-geniture , for that end , excludeth females of nearest degree , heirs male excludeth them simply and heirs of tailzie , have had their rise from dissatisfaction , with some of the fiars race , or preference of them , otherwayes then by the propinquity of blood ; some have also tailzied their lands , so as by infeftments , to introduce a primo-geniture among familyes , as the law hath done among males ; as if the land were granted to the fiar , and the heirs male of his bodie , which failling , to the eldest heir female of the bodie , without division , and their heirs carrying the arms , and name of the family : the intent of these heirs of provision , is also to preserve the unity and memorie of the family . to come now to the heirs of line , the law hath ordred them thus ; first the eldest lawfull son , and his descendents in order , by right of primo-geneture , excludeth all other descendents , male or female ; failling sons , the daughters , and their descendents do all succeed equally , except in rights indivisible , which fall to the eldest ; failling desendents , the next degree is of the next immediat brother german , and his descendents , and among middle brethern , the immediat elder brother succeedeth in conquest , whereunto the defunct did not , nor could not succeed as heir , but in all others , the immediate younger brother succeedeth , and therefore is called the heir of line ; and the other the heir of conquest : if the fiar be a woman , her brother german excludeth sisters german , and of her brothers , the immediate elder brother succeedeth inconquest , and the immediat younger in heritage ; failing , brothers german , sisters german , and their descendents exclude both brethren and sisters , by the fathers side only , june ult . . mr. robert cuningham contra multray . failling brothers , or sisters german , brothers by the fathers side , succeed to the defunct , whether male or female , the immediat elder in conquest , and the immediat younger in heritage . failing all brothers and sisters , the father or other masculine ascendent of his line , succeed to the defunct , whether male or female , and exclude the brothers , or sisters of that ascendent , as a grand-grandfather excludes his brethren : fathers brethren to the defunct : failling ascendents , the fathers brothers , and fathers sisters , and their descendents , succeed in all points as brothers and sisters , the double blood excluding the single blood , and the immediat elder brother succeeding in conquest , and the immediat younger in heritage , and all failling the grandfather ; and failling him , his brothers and sisters the same way : and so upward , till there can be any propinquity of blood proven , which all failling , the king taketh place as last heir . . in this line of succession , observe , first , that there is no place for adopted children , or their issue , but only for the naturall issue of the vassal ; which cannot be changed by a voluntar act of adoption , without consent of the superior , in the investiture , neither is adoption in use with us in any case . . these naturall heirs , must also be lawfull , whereby bastards are excluded ; who are such , appeareth by the former title . . there is no place for cognats , as to the mother , grandmother , or other feminine ascendent , or these of their side , but only to agnats conjoined by the father , grandfather , &c. which holdeth , even though the heritage descended from the mother , or these of her side , for in the service of heirs , the nearest lawfull heirs are only inquired , and retoured either by the lineall succession aforesaid , or by express tailzie , or provision in the infeftment , without respect from whence the inheritance flowed ; for which we have no satute nor custom ; but in england , it is otherwayes for paterna paternis , and materna maternis takes place , but with us the contrare was found in the case of john gilbert , as craig observeth , lib. . dieg . and he there relateth that many afterward changed their opinion therein , and though there be equity in it , yet no law nor practique since , hath favoured the maternal line , but the father was found heir to his son , even in the lands where the son was infeft , as heir to his mother , and did exclude his brother uterin , by that mother , february . . lenox contra lintoun . . in all this line of succession , there is place for representation of descendents , in place of their defunct parents : so that females of a further degree , by the right ofrepresentation , exclude males of a nearer degree , as the eldest sons daughter will be preferred in thegrandfathers inheritance , to his other sons in private rights , though that be contraverse , by the more comon feudall customs , as is largely and learnedly dispute by tiraquellus . . in this lineall succession , the father , grandfather , or other ascendents of the paternall line , succeed in heritable right , next unto brothers and sisters , and before all other collateralls , or agnats . we have shown before , why , there is no mention of ascendents in the jewish succession , because such a case could hardly occurr among them . craig , lib. . deig . . affirmeth that it was doubtfull in his time , whether ascendants could succeed in heritable rights , and that he heard the opinion of some learned men in the contrary , and that he had not found the lords decide in it , and that it is contrare to the feudal law , and also to his own opinion ; yet he brings both evident reason and example in the contrary , the reason is , that no inquest can justly retoure , that the father brother , is nearer then the father : he bringeth also the example of the earl of angus , served heir in the earldom of angus , to his ownson , whom he had infeft therein : and the lord colvill in likemanner , having infeft his son in all his estate , though sum affirmed that this was by provision , in the infeftment ; yet that the service was , is sure , but that provision is uncertain , and though some also were doubtful , whether the earl of angus was served , and infeft as heir to that same son , which well inferreth that the father was not infeft as heir to his son , but not that he was not served heir to him therein , for he might have been served , and not infeft ; whereby , the service as incompleat , became void , and the next earl behoved to serve of new to the son , who died last vest , and seased as of fee : the custom . and common opinion since , is for the ascendants , and so the earl of roxburgh was served as heir male to his son ; the lord ker , and many others which ought to be the more favoured , as more conform to equity , and the law of nature , which in dubio ought to take place , where there is no law , nor custom to the contrary , as with us there is none ; neither did i ever hear of one who attempted to exclude a father , by the fathers collaterails : and though there had been no decision upon it , neither have there been upon many other uncontroverted customs , especially in succession , but the acquiescence of all parties , having interest in matters of so great moment , is a strong evidence of the nationall consent by custom : but it hath aho been so decided by the lords , hope , succession , mr. robert burnet contra mauld ; yea a son , being infeft as heir to hismother dying without issue , his brother uterin by the mother was not found heir to him , but his father , february . . lenox contra lintoun . as to the alledged opposition of the feudall law , as hath been oft times said , it is local ; and therefore , as in england , all ascendents are excluded , so in germany they succeed in the next place after descendents , and are preferred to brothers and sisters , according to thenaturall course ofsuccession . the reason why brothers and sisters of the defunct , are preferred to the fathers with us , may be , because such fees do commonly proceed from the father : and therefore by the continuance of that samefatherly affection , are derived to the brothers and sisters , and because they are in more need of provision then the father . title xxvii . heirs . . appearand heirs may pursue exhibition , ad deliberandum . . they may defend their predecessors rights and possessions , being called , or compearing for their interest ; and their executors have right to the rents of these years , they were appear and heirs . . the aliment of heirs from the donatars , and life-rentars . . heirs not entred , have the benefit of clauses , which by nature import , they should not be actual heir . . heirs have interest in all rights granted to their predecessors , though not mentioning heirs , who are not exclusive of heirs , by their tenor and nature . . heirs have the benefit of all rights heritable , by destination , or having a future tract of time , after the defuncts death . . heirs have right to moveable heirship , or obleigment for sums wherein executors are excluded . . heirs of lyne , are heirs generally ; their interest . . hirship moveables . . heirs of conquest their interest . . heirs portioners their interest . . heirs male , tailzie , and provision , their interest . . all heirs are lyable pasivè for the defuncts debt , but not in the same way . . heirs portioners how far lyable . . the effects of different provisions , or obligations by defuncts , in favours of divers heirs portioners . . heirs not being portioners , no substitute in bands are lyable in solidum . . the order , by which heris are lyable passivè , and may be discust . . heirs of tailzie ripresent not the defunct , in obligations contrary to the terms of the tailzie . . heirs of marriage , may quarrel their predecessors deeds , being meerlygratouitus in their prejudice , but not such as are onerous , or rational deeds . . heirs having the benefit of discussing , may propone the exception , that all parties having interest , are not called , without instructiug the right whereto they may succeed . . the exception of the order of discusing , is not sustained without condescending on the heritage , whereunto the anterior heir may sueceed , and what is discusing . . the order and effect of a genral charge to enter heir . . the order , and effect of a special charge to enter heir . . renounciation to be heir , its order and effect . . the entrie of heirs general , and effects thereof . . the entrie of heirs upon precept of clare constat . . the entrie of heirs by hesp and steeple within burgh . . entrie of heirs by brievcs out of the chancellarie . . to whom these brieves are directed . . the manner of citting the inquist , and proclaming the brieve . . exceptions competent against members of inquist . . the appearand heirs claim . . exceptions against the claim . . first head of the brieve . . the . head of the brieve . . . head of the brieve . . the . head 〈◊〉 of brieve . . the . head of the brieve . . the . head of the brieve . . the . head of the brieve . . the service . . the reture . . reduction of retures by a great inquist . . reduction thereof otherways . . reduction of retures how competent . . precepts out of the chancellarie , to superiours to infeft . . suspensions of the precepts , and the reasons competent therein . . the certification of the loss of the superiority , during the life of the superiors disobeying . . further reasons of suspension of these precepts . . whether the persons nearest at the defuncts decease , may be entred where a nearer is in spe . . who are fiars of conjuct-fees , or provisions substitute . . the entreast of heirs of provision , and import of clauses of conquiest , in contracts of marriage . by the former title , it appeareth who are heirs ; let us now consider what their interests are by being heirs : and that is either active by the benefit , or passive by the burden whereunto they do succeed ; for heirs being successors in universum jus quod defunctus habuit , they do fully represent the defunct both in the rights , belongiug to him , and in the debts due by him . first , then of the interest , common to all heirs ; and next of the interest , speciall to the severall heirs . . the interest of heirs are most properly competent , when they are entered heirs , according to the due course of law , of which afterward ; yet somethings are competent , not only to heirs entred , but to appear and heirs , as first , they have interest to prusue exhibition of all writs made by their predecessors to their wives , children , and others in familia , but not of writes made by them extra familiam , december . . margaret forrester , and schaw of sor nebeg her spouse , contra tailzefere . or to their predecessors simply , to the effect , they may know the condition of the heritage : and may desiberat whether they would enter heirs , or not ; seing if they do enter , they are lyable for all the defuncts debts , though they farr exceed his estate , and have no benefit of inventary , as in moveables : and therefore they are allowed to pursue for inspection of all writes , importing a debt of the defunct ; yet not so as to open the charter chists of strangers , who have purchased lands from the defunct , on pretence of the burden , by the warrandice ; for in that case the strangers infeftment will exclude them , and only dispositions made to these in the family , hinder not inspection of the heirs whole rights flowing from the defunct , or his predecessors : but i doubt not , but all will be oblieged to produce bands , or personal obleigements , which might burden the appearand heir , if he enter . as was found in the case of dispositions , and bandsgranted by the defunct , to strangers , feb. . laird of swynton contra laird of westnisbit . but if infeftment had followed upon the disposition , the defender would not be oblieged to produce the disposition , because the appearand heir might , by the registers , find his predecessors denuded . this inspection is competent , during their annus deliberandi . it was so found , in favours of the appearand heir , pursuing exhibition within the year , feb. . . laird of swinton contra laird of westnisbit , where the writs pursued for , were likely to be the ground of a plea , against the defender himself . this exhibition , ad deliberandum , is competent at any time , before the heir enter , even after the annus deliberandi , which is granted to appearand heirs , that they may be free of all actions on chargesto enter heir , reductions , or declarators during that time , if they do not enter , or behave as heirs : but on this accompt , the appearand heir hath no interest to put parties to compt and reckon , ad deliberandum , june . . lessies contra alexander jeffray . in these exhibitions , the relations , or propinquity of blood , of the appearand heir , passeth , without probation , as notorium : so , as if the defender be absent , the decrcet will not be null , for want of probation of the title . yet a scots man born of parents , residing in holland , was found to have no interest , to pursue exhibition , as appearand heir to his father , till he produced an authentick declaration , and tryal , by the magistrants in that place ; that he was the eldest lawful son of his father , december . . fleming contra broun . . appearand heirs , may defend all rights competent to them , upon production of their predicessors infeftments , whether they be called , or compear for their interest , january . . laird of rosline contra his tenents and george fairbairn for his interest . they may also continue their predecessors possession , and pursue for mails and duties of there lands , finding caution , in case of doubtfulnesse , to make these forth-coming to any other , having interest , spots heirs , james oliphant contra his tenents . yea , the rents of lands , were so far found , to belong to an appearand heir , that though he died un-entered , the next heirs not entering to him , was found obleiged to pay the former appearand heirs aliment , in so far as he intromitted with the rents of the years , during which the former appearand heir lived , december . . ladie tarsapie contra laird of trasapie . and consequently , the rents might be confirmed by his executors , or arrested for his debt . the like was found of moveable heirship , wherewith the appearand heir was intertained by his mother , june . . robertson contra dalntahoy . they may also pursue the life-renters of their estate , for aliment , feb. . . james hepburn contra dam margaret preston and isobel seatoun . . the aliment of heirs , out of there lands , being life-rented , or in ward , is constitute by the act of parliament , . cap. . bearing a reasonable living to be given , to the sustentation of the heir , after the quantitie of heritage ; if the said heir have no blensh , or feu ferm to sustain him , as well of ward lands fallen in the kings hands , as in the hands of any barron , spiritual or temporal , whereby , it is clear . . that the quantity of the aliment is indeterminat : and therefore is modified by the lords , according to the quality of the heir , and his estate , . it takes no place , if the heir have blensh , or feu lands , sufficient to sustain him ; but if these be not sufficient , the same will be made up by the life-renters and wardatars proportionally , march . . heir of milioun contra calderwood . yea , where the minor had any other means , sufficient to intertain himself , as the heir , being a writer , and thereby able to aliment himself , he was found to have no aliment from his mothers life-rent , who brought . merks of tocher , and had but . chalders of victual in life-rent , july . . laird of ramorny contra law. the like , where the heir was not minor , but designed himself preacher , and so having a calling , feb. . . sibbald contra wallace . here the relict was infeft in no land , but had an annualrent of . merks , out of land , and the heir was not minor : whereas , the lords thought the act of parliament , was not in favours of majors , who ought to do for themselves , but all must be considered complexly , in this decision : some heirs , by their quality , not being bound to follow callings , but the life-rent was a mean annualrent , no more then an aliment to the relict , the pursuer major , and having a calling : and certainly , where the life-rent is but an aliment , the appearand heir must rather want then the person provided for a cause onerous . though the act mention only ward lands , yet it was extended to a minor , having no ward lands , against a life-renter of all his fstate , being houses , and annualrent of money , feb. . . fiinnie contra oliphant . in this case , it was not found sufficient , that the life-renter offered to maintain the minor , her own child , upon her own charges , she being married to a second husband : but the tutor obtained modisication , with consideration of the moveable heirship , on the contrary , where the mother was not married , her offer of intertainment was received , july . 〈◊〉 . alexander noble and his tutors contra his mother : neither was the modifi cation excluded , because there were free lands , at the defuncft death , seing they were appryzed thereafter , for the defuncts debt , hope de haered . white contra caldwall . the like , the debt being great , and the annualrent thereof , equivalent to the rent of the lands not liferented , feb. . . antonia broun contra her mother : but aliment was not found due by a father life-renter to his son , on this act , but only , super jure naturae , july . . laird of rumorney contra law. nor by a grand-father to his oye , who had disponed his estate to his son , reserving his life-rent , of a part , the rest unsold by his son , being life-rented by his wife , july . . hamilton contra his goodsir : but where the heirs mother brought a great tougher , and the grand-father fell to a plentiful estate by his brother , the heir was found to have aliment of his goodsir , though he disponed the land to the heirs father , burdened with his mothers life-rent , june . . heir of gairn contra laird of gairn . this behoved not to be from the statute , but ex debito naturali . aliment was found due by a liferenter to her daughter , the appearand heir , though she renounced to be heir , july . . hamilton contra symonton . but , where a father disponed to his son a part of his estate , reserving his life-rent , and another to his son , and his wife in conjunctfie , after his sons death , his appearand heir got no part of his aliment from his goodsir , but only from his mother , feb. . . sr. john whitfoord contra laird of lamington . aliment was found due to the heir , by an asigney to a gift of ward , without necessity to prove , that he intromitted with the ward lands ; unlesse he had been legally excluded , which was modified by the lords : and it was not found sufficient to intertain him in the assignyes family , but nothing was modified for that time , that the minors mother alimented him gratis , feb. . . sibbald of cair contra sr. alexander ealconer . . heirs also not entered , have the benifite of such obliegments , or provisions conceived in favours of heirs , which by their nature , or meaning , require to be fulfilled before the heirs entry . as when a party was obleiged to imploy a sum upon land , and to procure himself , and his umquhil spouse infeft therein , in life-rent , and the heirs procreat betwixt them in fee , the bairn of the marriage , who would fall heir , was thereby found to have right to crave his father , to imploy the money accordingly , though he never was , nor actually could be heir , his father being alive , december . . laird of collington contra granton . in this case , the lords inclined , so to decide , but decided not ; but that day , durie observes a like case decided , july . . young contra young. the like was decided , feb. . . alexander frazer contra john frazer . in which case , a father , by his contract of marriage , being obleiged to imploy a certain sum , upon security to him and his wife in conjunct-fee , and to the heirs of the marriage , and likewise to take all conquest during the marriage , the one half to the wife in life-rent , and the other to the heir of the marriage in fee , after the wifes death . process was sustained , at the instance of the apparent heir of the marriage , against his father , who was decerned to imploy the special sum to himself , and after his decease , to the heir apparent of the marriage albeit , therby , the father would remain fiar , and might dispone , or burden the sum so imployed , for reasonable considerations , but not by deeds , meerly gratuitous , to evacuat the obleigment : and if he did deeds prejudicial , he would be obleiged to purge the same , or re-imploy 〈◊〉 : but it was not so found , as to the conquest , before the marriage , which might be altered during his life , for that only could be accounted conquest , that he had more at his death , then at his marriage . and so heirs of a marriage , in an obleigment , in case a wife deceased , without surviving heirs of the marriage , these were interpret bairns of the marriage , who survived their mother , but died before their father ; and so could never be served heir to him , january . . turnbul contra colinshlie . the like , where a father was obleiged to infeft himself and his spouse in conjunct-fee , and the heirs procreat betwixt them , &c. the apparent heir was found , to have interest , to pursue the father for fulfilling thereof , and of the obleigment adjoyned , not to dispone in their prejudice , hope de haeredibus , hamilton contra silvertonhil . tacks set to heirs , require no service , but being notour , to be the person , who might be served heir , they have right without service , june . . hoom contra johnston of oldwells . . as to the benifit of heirs , they have right , not only to obleigments conceived in favours of the defunct , and his heirs ; but though there be no mention of heirs , unlesse by the nature of the obleigment , there be a speciallity , appropriating the same to the person of the defunct only , as in commissions , trusts , &c. so heirs were found to have the benifit of a promise . made to their predicessors , for disponing of lands to him , acquired for his use , though it mentioned not heirs , feb. . . heir of jean 〈◊〉 contra livingston . the like of a reversion , not mentioning heirs , which was thought to be omitted by neglect , seing it bore not redeemable to that partie during his life , as it is ordinarily adjected , when that is meaned , january . . earl of murray contra laird of grant. the like of an annualrent , though it bore only to be payed yearly , and not perpetually , or heritably , or to heirs , feb. . . pourie contra dykes . and a substitution , mentioning only a person substitute , without mention of heirs , was found competent to that persons heirs , january . . innis contra innis . . heirs have the benefit of heritable rights , not only whereupon infeftment hath followed , or which , by destination are heritable , or requiring infeftment to their accomplishment , as heritable bands , bearing clause of infeftment , for these bearing only clause of annualrent , are declared moveable , by , and since the act of parliament , . cap. . revived , par. . cap. . of which , in the last title . so also , are reversions , pensions , tacks , without necessity of being entered heir , june . . john boyd contra hugh sinclair , july . . hoom contra johnston of oldwells . and all rights , having a tract or course of time , after the defuncts death . in these cases , where the defuncts right is temporary , and runneth out by a certain course of time , that time runneth , whether the defuncts heir be entered , or do possesse , or not , as tacks , pensions , or annuell prestations , during so many years : and therefore , these require not service , or solemnitie ; but that person , who might be served , may continue , or recover the defuncts possession , and his possessing makes him lyable passive , as representing the defunct . neither needs there any service of children nominatim , substitute immediately to their parents , but if they be substitute in the second place , a service must be used to instruct , that the heirs appointed in the first place did fail , july . . 〈◊〉 of drumelzier contra the earl of tweddel . what rights are heritable , and what moveable , vide title real rights . . heirs , have also right to moveable heirships , and to all obleigments , though the matter be in moveable rights , if executors be expresly secluded , otherways , if the matter be moveable , and heirs only be exprest , but not executors , yet executors will not be excluded , because heir is a general term , comprehending exectors , hope ejection , sr. lewis 〈◊〉 contra tenents . the special interest of heirs , are according to their several kinds , viz. heirs of line , and of conquest , heirs portioners , heirs male , and heirs of tailzie , and provision . . the interest of heirs of line , is , that they are heirs generally , not only , because they may be served by a general service , but chiefly , because they must generally represent the defunct . so , that what cannot be claimed by a special title ; either as being conquest , or specially provided , by the tenor of the infeftment , befalleth to the heirs of lyne : and therefore , in dubious cases , what doth not appear to belong to other , heirs appertaineth to these , in respect of whom , heirs male , and of tailzie , and provision , are accounted as strangers , and may come against the defuncts deeds , in favours of the heirs of line ; but the heirs of lyne , cannot come against such deeds , in favours of others , because , as heirs of line , they are reputed as one person , with the defunct ; and so are obleiged to maintain , and fulfil his deeds , not done on death-bed . it was so found in the case of an heir of tailzie , against an heir of line . spots earl of hoom contra and as heirs of line have generally the benefit , so they have more effectually the burden of the defuncts debts , which ordinarily reach them in the first place : so that oft-times the heirs of line , have little or nothing free . we shall not need to be special , what befalleth the heirs of line ; being to show particularly , what befalleth to the other heirs : for what remaineth , belongeth to the heirs of line only . heirships moveable belong only to heir of line , and not to heirs of tailzie , january . . collonel montgomrie contra stewart . . heirship moveable , is the best of every kind of moveables , belonging to the defunct , which the heirs of line may draw from the executors , whereof there is an ordinary list : the reason of this heirship moveable , is , because , by our law , by primo geniture excludeth the defnncts other nearest of kin in heritage , wherethe nearest of kin succeeds alone in moveables ; and as they have no share with the heir in heritable rights , so most sitly the heir hath no share with them in moveables , but hath only the best of every kind , which therefore is called heirship moveable . in which the defunct cannot , in his testament , or any other deed done on death-bed , prejudge his heir , as was shown last title ; but if the nearest of kin be all femals , they are both heirs 〈◊〉 executors , or , if but one male , he is both heir and executor : in which cases . there is no heirship moveable drawn . heirship moveable is established by the act of parliament , . cap. . ordaining the heirs of prelats , barons and burgesses , to have the best of every kind , according to the burrow lands , and so was found not to belong to the heir of a defunct , who had only heritable bands , being neither prelat , baron , nor burgess . hope de haered . todorig contra 〈◊〉 . but the heirs of prelats was extended to other beneficed persons , as was found in the heirs of the of person of dingwal , novem. . . william rig contra mckenzie . and likewise , the heirs of barons was extended to any persons heirs , dying in fee of lands , though not erected in a barrony , hope de haered . keith contra mckenzie , todoirg contra purdie . heirship moveable was found competent to the heir of a person , who died only infeft in an annualrent , july . . elizabeth scrimzeor contra executors of mr. john murray . but heirs of a burgess was found not to extend to an honorarie burgess , who died not trading , or working in the burgh , spots heirs , james leslie contra hugh dumbar . heirship moveable , is not always a single thing , but goeth sometimes by pairs , and sometimes by dozens , as in spoons : so the heirship of oxen was found to be a yoke , and not a single ox , nicol. de haereditatis petitione , july . . black contra kincaid . and heirship taketh place , only in corporibus , but not in quantitatibus , as in money , cloath , mettal , &c. and so the shell of a salt-pan , which was out of use , was accounted but iron , and not to fall under heirship moveable , had. january . . reid contra thomson . . heirs of conquest , though they be also heirs of line , as befalling by the course of law , and not by the tenor of the infeftment , and therefore were set down as lineal successors , in the preceeding title ; yet because heirs of conquest have only place , where there is an elder and younger brother , or an elder and younger father brother , &c. and their issue to succeed : in which case , the law alloweth two heirs , the immediat elder succeedeth in conquest , and the immediat younger in the heritage : therefore , the one is specially called the heir of conquest , and the other retaineth the common name of the heir of line . conquest is feudum novum , whereunto the defunct did not succeed as heir to any person , or whereunto the defunct could not succeed as heir , for if that were disponed to him by the defunct , whereunto he would have succeeded , it were but preceptio haereditatis , and so remained to be repute as heritage to descend to the younger , and not to ascend to the elder , as craig observeth , lib. . dieg . . such heritages are rare , and befall only by tailzie , or provision amongst midle brethren : because the eldest , by primogeniture , excludeth the rest from being heirs of line , but it may befall , in case of the heirs of lyne , when the nearest successor , is the fathers , or grand-fathers brothers , or their issue , there being elder and younger brothers ; but conquest is frequent , because , not only that which is acquired properly , by the means and industry of the defunct : but that which is by gift of the defuncts parents , or any other , or , whatsoever the defunct could not succeed to , is conquest . yet , if the heir of conquest succeed , that which was conquest becomes heritage , and descends : as if there were four brothers , and the third acquiring lands , died without issue , the second would be his heir therein , who , if he died also infeft , the lands would fall downward to the youngest brother , and not upward , to the eldest brother . the custom of england is contrary , for thereby , the eldest brother succeedeth to all his brothers , failling the issue ; but with us , the immediat elder or younger doth always succeed , though of different marriages , none of them being brothersgerman : and therefore , in the case proposed by craig , lib. . 〈◊〉 . . in fine of a brother , by a second marriage , dying without issue , and having three brothers of a former marriage , no doubt the youngest would succeed : according to the opinion of oliphant and king , there related : albeit , that craigs opinion be , that the eldest would succeed . it was so decyded , contrary craigs opinion , july . . laird of clerkington contra stewart . heirs of conquest succeed , not only to lands conquest by their immediat predicessors , but in other heritable rights , passing by infeftments , as annualrent , or such as are heritable by distination , and which are accomplished by infeftment , as despositions of lands , or annualrents , appryzings , or adjudications , &c. the like , where an annualrent was first disponed , and a clause of requisition , and reversion subjoyned , july . . robertson contra lord halkertoun , and in reversions , hope de successionibus , heirs of pitcairne . but in this case , it is not cleared , whether the lands given in wodset , were heritage or conquest ; but it seems , if the lands had been heritage , as they were wodset , the reversion would also belong to the heir of lyne , as the lands whereto it was accessory would ; yea , heirs of conquest succeed in heritable bands , bearing clause of annualrent : as was found amongst the heirs of doctor craig . but the heirs of lyne , and not the heirs of conquest succeed in tacks , acquired by the defunct , hope succession , earl of dumbars heirs , june . . ferguson contra ferguson . the heirs of lyne do also succeed in pensions , or any other right , not requiring infeftment , as in these which having a tract of time , after the defuncts death , do thereby exclude executors , and do belong to the heir of lyne , and not of conquest , though they be acquired . the heir of lyne , and not the heir of conquest falleth to be tutor , or nearest agnat to the pupil , to whom the heir of lyne might succeed . the heir of lyne hath right to the heirship moveable , and not the heir of conquest . . heirs-portioners are amongst heirs of line , for when more women or their issue succeed , failing males of that degree , it is by the course of law that they succeed ; and because they succeeed not in solidum , but in equal portions , they are called heirs-portioners ; and though they succeed equally , yet rights indivisible fall to the eldest alone , without any thing in lieu thereof to the rest . as first , dignity of lord , earl , &c. . the principal manse being tower , fortalice , &c. which doeth not extend to houses in burghs , nor to ordinary country-houses , the former being divisible , the latter falls under division , as pertinents of the land whereupon they stand , and are not as separata jura , or distinct rights . . superiorities are accounted indivisible , and befal only to the eldest daughter and her issue , and thereby all the casualities of the superiority , either preceeding or following the defuncts death , as ward , relief , marriage of the vassals heirs , nonentry , liferent , escheat , &c. the reason is , because the vassals condition ought not to be worsted and made subject to many superiors by such successions , craig lib. . dieg . . excepteth the superiority of feu lands , the feu duties whereof are divisible amongst all the heirs-portioners , yet the former reason of the indivisibility of the superiority in respect of the vassals interest , reacheth feu superiorities as well as others ; and it is hardly conceivable how superiorities should belong to the eldest , and yet the feu duties divide to the rest , seing the superiority as being dominium directum , is the only title for poynding the ground , or pursuing the possessors or intrometters with the fruits thereof . it seems for the reason adduced , the superiority , and therewith the feu duty befalleth to the eldest ; yet so , because the feu dutie is constant and liquid , and is not like the other casualities of superiority , which are illiquid and accidental ; therefore the other heirs-portioners ought to have compensation for their parts of the feu duty , in or off other proper lands : or if there were moe superiorities of feu lands , so that some of the superiorities might befal one heir , and others to other heirs , no particular superiority being divided , or the vassal made vassal to many superiors , i conceive it would be allowed ; or otherways the eldest co-heir would be dicerned to infeft the rest in annualrents out of the fee correspondent to their share of the feu duty . a vassals heir , though the defunct had taken infeftment of more heirs-portioners , was not found oblieged to take infeftment of some of them severally , but either of all jointly , or the eldest , july . . lady luss contra inglis . how far heirs-portioners succeed passive , and are lyable for the defuncts debt , shall forthwith appear . . heirs male , and of tailzie , and provision , succeed not by law , but by the tenor of the infeftment or provision , and therefore have that benefit and no more , which is so provided to them , or which is accessory thereto , whereby any right or security of lands , or others befalling to these heirs , which is thereafter acquired by their predecessors , though the same be acquired to him and his heirs whatsover , yet the same will befall with the principal right , to which it is accessory to the heir male , or of tailzie , or provision . as if a proprietar infeft himself , or his heirs male , or of tailzie , or provision , in lands or annualrents , and thereafter acquire reversion , apprisings , tacks , or others , further or better security of the same lands to himself and his heirs whatsoever ; these will accress to his heirs male , or of tailzie , or provision , whether the infeftment in their favours be anterior or posterior , which is the more dubious case ; for it cannot be thought that the defunct having before provided such lands or annualrents to his special heirs , doth by acquiring new rights mean to set his heirs by the ears to debate upon their several rights : neither can his posterior deeds be repute an alteration of the former provision ; which can only be done by resignation , unless the defunct debarred expressly , his former special heirs , and obtained his heirs whatsoever infeft . and though heirs whatsoever do ordinarily signifie heirs of line , who are heirs general , and take place , when the right of no special heir appeareth , yet the adequat signification thereof , is not heirs general , but heirs generally , whether of line , male , tailzie , or provision , as is more clear passivè in the defuncts obliegment , as if he oblieged himself and his heirs whatsoever . by heirs whatsoever , will be understood all kind of heirs in their order , yea in some cases only his special heirs , if the obliegment relate to lands or others so provided , as will shortly appear : and therefore , heirs male , or of tailzie and provision , in respect of the heirs of line , are as strangers , and may come against their predecessors deeds in favours of his heirs of line ; as if any person provide any lands or annualrents to his heirs male , or of tailzie , and thereafter dispone the same to his heirs apparent of line , his heirs male , or of tailzie , will in several cases not be oblieged to fulfil that provision ; and if such express provisions be ineffectual to the heir of line , it seems a general taking a new right in favours of heirs whatsoever should be less effectual : but the difficulty is , how special heirs can be served heirs in such rights supervenient , conceived in favours of heirs whatsoever , which will be loosed if the heirs special may be comprehended , and so served under the common title of heirs whatsoever . how far heirs of tailzie or provision may alter the tailzie of the fee , or affect or burden the same , is largely considered , title . § . . which therefore needs not here be repeated . . the common interest of heirs passivè , is , that they are lyable for their predecessors debts , for they are repute in law as one person with their predecessors , and so represent them , not only active in their estates and goods , but also passive in their debts and burdens , quem sequuntur commoda eundem & incommoda sequuntur ; and this is common also to executors as being heirs in the moveables , but as the executors succeed only in moveable rights active , so they succeed only in moveable debts passive , yet the creditor hath his option to pursue either , or both of them , whether the debt be heretable or moveable , and the heir hath relief against the executor , in so far as he is distressed for moveable debts ; so hath the executor releif against the heir of the heretable debts , march . . falconer contra blair . spots . executors laird of carnousie contra meldrum . but heirs and executors differ in this , that the executor is only lyable secundum vires inventarli , according to the inventar of the confirmed testament , unless he disorderly intromet with more ; but the heirs are lyable in solidum , though the debt far exceed the value of the estate . heirs are lyable for their predecessors debts , but not all the same way : first , heirs portioners though jointly they be lyable for their predecessors debts in solidum , without benefit of inventary ; yet severally , each heir-portioner is regularly lyable but pro rata parte , though the proportion whereunto they succeed be more then the whole debt , february . . hoom contra hoom. spots . improbation laird of laars contra dunbars , john duncan and the heirs of john ogilvy . . yet one heir-portioner was found lyable in solidum , as successors in his whole estate by disposition post contractum debitum , though there were other two sisters , the one of whom being called , renounced , the pursuer condescending upon nothing , unto which she could succeed ; and the other having no means , but being called passive , feb. . . peter orr contra elizabeth 〈◊〉 : neither did it avail , that the other sisters had received portions of money near to the value of the estate , by the father in his life , but action of relief was reserved against them , as accords , march . . inter eosdem : the reason thereof adduced , is , that the getting portions in money , could be no 〈◊〉 〈◊〉 , and so could not make the receivers lucrative successors , 〈◊〉 contractum debitum , as the disposition of the lands doth . yea , an heir portioner being convened without the other , was found lyable in solidum , because the other was found not solvendo , and had disponed all right to the defender , january . . scot contra hart. but here the matter was but of small moment , and this was a doubt in the first decision , in this case , if some of the heirs portioners should be insolvendo , whether or no recourse might be had , against them that were solvendo , at the least , to the value of their proportion ; which , though it seem equitable , and is favoured by this last decision , yet it is not decyded in the former , neither have i observed it decided since , but in the pursuit , decem. . . at the instance of dam rachel burnet , now lady preston contra sisters of her first husband : the lords only discerned , against the heirs portioners , pro rata , but with reservation to the pursuer , to insist and dispute her right against any of them , for more , if any of them proved insolvent : but it seems , the portion of the insolvent , would not reach the solvent , above the value of their succession . because the only ground they could be lyable on , for more then their part would be in quantum lucrantur . for as heirs they could not be lyable in solidum , neither by our law , nor the civil law. and if the creditors taciturnitie , whereby the other heirs became insolvent did appear , it would prejudge the silent creditor , and not the heir , who did not know the debt , and so could not prevent the others dilapidation . . there is a case occurreth oft-times amongst heirs portioners , when several obligations , and provisions are granted in their favours by the defunct , whereby , after his decease , they become mutual debitors , and creditors ; and sometimes these provisions exceed the estate , quid juris , whether do these obligations evanish , and become extinct confusione ; because the same persons become debitors and creditors ; or whether they do all stand , and in that case , whether the first in order will be preferred , or , if they all will be abated proportionally , to the value of the heritage . thus maitland observes , december . . that a father infeft himself , and the heirs of the first marriage , and thereafter resigned , and infeft himself , and the heirs male of the second marriage , which failling his nearest heirs whatsomever , these heirs male the second marriage failled : and therefore , not the daughter of the first marriage only , but she , and the daughters of a third marriage succeeded , by the second infeftment , as his heirs whatsomever , substitute to be his heirs of the second marriage . craig hath the case , but otherways observed , lib. . dieg . . where a person had provided his lands to the heirs of three several marriages ; of each whereof there survived a daughter : the question was , which of the daughters should succeed ? whether the first , as having the first provision , or the last having the last provision : the parties were three sisters , aikmans . in which the lords admitted all the three sisters as heirs portioners , and so confounded the provisions , being all equal ; and about the same thing , which must be the reason , and not that which is there rendered . because the defunct , notwithstanding of these provisions , in favours of heirs might have disponed effectual , to a stranger : and so likewise to his own children of another marriage ; for that reason would have excluded the daughters of the first marriage , and preferred the daughter of the last marriage . and as hath been shown , tailzies of provisions , upon an anticedent , onerous obligation ; such as is marriage , hinder the fiar to dispone , or provide the same to his heirs of lyne , representing him simplie , and must fulfil his obliegment ; albeit his disposition to strangers , not so representing him , will be effectual : and therefore , craig in that same place observeth , in the case of isobel barron , who being heir to her father of his first marriage , by which it was provided , that the heirs of the marriage should succeed to all lands conquest during the marriage : and thereafter , having a son of the second marriage , who was his fathers heir of lyne , to whom his father disponed , or provided a tenement acquired , during the first marriage ; yet the said isobel , as heir of that marriage , recovered that tenement from her brother , as heir of lyne . but the main difficultie remaineth , when the obliegment in favours of the heirs portioners are un-equal for when they are equal , whether they become extinct by confusion , or not , it is alike : but if they be so extinct , when they are un-equal , there will not be an equal suffering , or abatement ; but the greatest obliegment will be extinct , as well as the least : neither can such obligations be wholly extinct , by confusion , but only pro rata . so that if there be three heirs portioners , for example , the obliegment granted to every one of them , can only be extinct for a thirdpart , because they are but heirs in a third part , and as to two third parts , each two of them are debitors to the third : and if the obligation exceed the value of the heritage , such of them as find themselves losers , if they enter heirs , may abstain , and renounce , and they , or their assigneys , may pursue any of the rest that shal enter , for fulfilling of the defuncts obliegments , but if they be considerat , when all the obligations joyntly exceed the value of the estate , they will all renounce , and assigne there obliegments , and their assigneys will be preferred , according to their dilignece , without consideration of the priority , or posteriority of the obliegments ; but if they happen to enter , or when their provisions are not personal to themselves , nominatim , but as they are heirs of provision ; and therefore necessarily require , that they must be heirs , before they can obtain their provisions , then the obliegments or provisions of each portioner are extinct , as to their own proportion ; but they have like action against the others heirs portioners , for there proportion , as other creditors have , the point will be clear by example ; if three sisters were provided by the father , to un-equal portions . the first to . merks , the second to . merks , the third to . merks . and the defuncts whole estate , had only been worth . merks . all of them entering , the case would be thus : the eldest would succeed to . merks of the heritage for her part , and the second would be lyable to her for . merks , as the third of the her provision , to whom she would also be lyable , for . merks , as the third of the seconds provision , which being compensed , the second would be lyable to the first in an . merks , dc claro . in like manner , the first would be lyable to the third in . merks , and the third would be lyable to the first , in . merks , which being ballanced , the third would be debitor de claro , to the first , in . merks . so the interest of the first would be . merks , as her own portion : and one out of the second , and three out of the thirds portion , being in all a . the second falleth . as her share , out of which she is lyable in . merks , to the eldest and the youngest is due to her , de claro , . merks , whereby her interest will be . merks , the youngest portion will be . merks , out of which she is due to the eldest , . merks , and to the second . so there will remain only free to her . merks , this may clear the case as to liquid sums , and as to dispositions , or provisions of lands , or other obliegments in facto . these , or the interest , or value , will be the same way effectual , amongst the heirs portioners , as if they had been made to strangers ; except , where the same disposition , or provision is made to divers of them : for then either being equally oblieged to others , as representing the defunct , the same become void , and in-effectual , protanto . as was found in the case of the sisters aikmans : but since the act of parliament . against fraudulent dispositions , the first disposition , or provision , constituting , that party creditor may give ground to reduce a posterior disposition of the same thing , to another of the heirs portioners , as being without a cause onerous , after contractiong of the first debt , but that will not hold in bands , for sums of money , all which will have their effect , as is before said . neither will it hold , when the provision of lands , provideth the party provided to be heir , for thereby the party cannot quarrel that predecessors deed : otherwayes the first obliegment , or disposition to any of the heirs portioners nominatim , may reduce any posterior disposition to others , of the heirs portioners . two daughters being served , both heirs portioners to their father in some teinds , but one of them succeeding to her brother , who was infeft as heir to his father in lands , excluding the other sister , who was not sister german to her brother , by both bloods , and both being pursued for their fathers debt , they were not found lyable equally , but proportionally , according to the interest they succeeded to ; the one being only immediat heir to her father , in a right of tiends , wherein her brother was not served , and infeft , the other being equally , and immediately heir to her father , in these teinds , and mediatly heir to her father , by being heir to her brother , who was heir to his father , being infeft in the lands , by precept of clare constat , without service , june . . christian white contra janet white . . other heirs not being heirs-portioners are lyable for the defuncts debt in solidum , except heirs substitute in bands , who are only lyable quoad valorem in the sums in these bonds , july . . fleeming contra fleeming . . heirs are not conveenable at the creditors option , as in the case of heirs and executors , but they have the benefit of an order of discussing . thus , first debts and obliegments , relating to any particular lands or rights , and no other , do in the first place affect the heirs who may succeed in these lands or rights before the heir general : so an obliegment oblieging the defuncts heir of line or tailzie , so soon as he should come to his estate , was found to affect the heir of tailzie who came to that , estate without discussing the heir of line , hope de haeredibus , lyon contra sir robert scot. nicol. de haereditariis actionibus inter eosdem : so an obliegment oblieging a debitor and his heirs male succeeding in such an estate and not all other heirs , was found to burden the heir male , before the heir of line or executors , july . . margaret anderson contra andersons . so likewise , an obliegment to infeft a party in an annualrent out of lands designed , was found to affect the heir of provision in these lands , without discussing the heir of line , nicol ibid. edmonstoun contra edmonstoun . this was also the opinion of the lords , though there was no decision in it , february . . laird of blair contra fairlie . and in these cases , the heir of tailzie or provision will have no relief against the heir of line , or other nearer heirs of blood , who otherwise , and also executors , must be discuss'd before heirs of provision or tailzie . general obliegments not relating to particular lands , do , first , affect the heirs of line , who are heirs general . . the heirs of conquest , july . . fairlie contra fairlie . . heirs male must be discuss'd before heirs of tailzie or provision , not being so near of blood , hope de haered . dunbar contra hay of murkill . the like must follow as to heirs of marriages , who are also heirs of blood , and must be discuss'd before other heirs of provision or tailzie , who therefore are only lyable in the last place , the rest being discuss'd , unless they become oblieged to relieve the heir of line , november . . lawrence scot contra boswel of auchinleck . . but an heir of tailzie was not found to represent the defunct in obligations contrary to the terms of the tailzie , as to which , heirs of tailzie are as creditors and strangers ; as when the security of a sum was by way of tailzie payable to the creditor and the heirs of his body , which failing , to a person named , his heirs and assigneys whatsoever , the creditor being oblieged to do no deed hurtful to the tailzie ; and the debitor oblieged not to pay without the consent of the person named , that person was found to have interest to obtain declarator that the sum was unwarrantably payed by the debitor , without his consent or order of law , by consigning it to be imployed in the same terms , and therefore , the debitor was ordained to make up the security again as at first , reserving to creditors how far they could affect this sum for the first fiars debt ; or whether the terms of the tailzie would exclude the fiars debts or deeds for his necessary use , or only unnecessary and voluntary deeds , feb. , drummond contra drummond . and in like manner , a father having granted two bonds of provision to his two daughters payable to them and the heirs of their body , which failing , to return to the father and his heirs , the one of them having died without heirs of her body , but having assigned her bond to her sister , the assignation was found ineffectual , as being done on design to disappoint the tailzie made by the father of the return of the provision , in case the daughters had no heirs of their bodies , and so was done without any onerous cause or just consideration , january . . jean drummond contra drummond of rickertoun . . and likewise heirs of marriage are heirs of provision , and partly creditors , and therefore may quarrel deeds fraudulent , or meerly gratuitous , done by the defunct whom they represent in prejudice of their provisions , as was found in the forementioned case of isobel baron , observed by craig , who being heir of a marriage , to whom all lands conquest during the marriage were provided , the father having disponed a tenement acquired during that marriage to his eldest son by another marriage , yet that heir of the marriage did recover the same from that son , albeit the heir of the marriage did represent her father , and yet not simply , but according to the provision by the contract of marriage , which being an onerous contract , uberrimae fidei , the father contracter can do no deed contrary thereto , but upon an onerous cause or just consideration ; and therefore , if he sell any thing falling within such provisions , the heir of provision cannot quarrel that stranger , but is oblieged to fulfil to him , but might quarrel the same , if it were meerly gratuitous , much more might heirs of a marriage quarrel deeds prejudicial to their provision in favours of the children of other marriages , without which , the great trust of these contracts would be eluded , whereupon parties rely and make matches and give tochers ; and therefore take provisions to the heirs of the marriage , either of definite sums , or of all , or a part that the contracters have , or shall acquire during the marriage , by which , the whole estates of citizens are ordinarily conveyed ; or otherwise , contracts of marriage bear particular lands , or sums to be provided to the heirs or bairns of the marriage , and also the conquest during the marriage , which clause of conquest will reach only to what the father had more at his death then the time of the contract , and is ordinary both in the contracts of citizens and others , which therefore should not be elusory , but effectual , according to the true meaning of the parties , which is not to bind up the father that he cannot do deeds for causes onerous , or rational considerations , but that he can do no other deeds meerly gratuitous and arbitrary in prejudice of such provisions : for though by such provisions when fulfilled , he himself must become fiar , and so may dispone , yet he is also debitor , and so cannot effectually dispone against the import and meaning of the provision : and therefore , a father by his contract of marriage having provided certain tenements to himself , and his future spouse in conjunct-fee , and to the bairns of the marriage , &c. and the wife having restricted her self to the half of the liferent of these tenements , after which the father having infeft her of new in that half , the said last infeftment was found reducible at the instance of the bairns , as heirs of the marriage , and that they were not oblieged to fulfil their fathers deed in favours of their mother , who was competently provided , in respect the same was contrary the provision in the contract of marriage , july . . carnagie and clark contra smith and baird . yea , a father by his contract of marriage having provided a definite sum to the eldest heir female of the marriage , and thereafter having disponed his estate to her , she marrying a person that would assume his name and arms , wherein if she failzied , providing the same to his second daughter upon the same terms , &c. the said eldest daughter having married suteably before she knew that disposition , and her husband refusing to take her name , she was found to have right to take her to her portion by her mothers contract , and so the right of her fathers estate was divolved to her second sister , upon the terms therein contained , who was found lyable to pay the provision to her eldest sister , contained in her mothers contract , july . . john stevinson contra marion stevinson . but these provisions do not hinder just and rational deeds of the father , as providing a joynture for a posterior wife , as was found in the case of katharine mitchel contra the heirs of thomas 〈◊〉 , june . . nor will they hinder fathers to provide children of an other marriage with competent provisions according to his condition , though thereby the conquest during the marriage will be affected ; yea , where in a contract of marriage , the husbands present means , and the wifes tocher , were provided to be imployed for the man and wife in liferent , whilks failing , the one half to the mans heir , and the other half to the womans heir . there being no bairns of the marriage , the husband was not found lyable to imploy that sum , and the conquest in favours of himself and the wifes heirs , but that he might imploy the whole in favours of the child he had by a posterior marriage , december . . bailiff anderson contra andrew bruce . . the exception that all parties having interest are not called , will be sufficient to sist process against such heirs as have the benefite of discussion , without necessity to condescend or instruct any right they may succeed to , january . . laird of luss and glendening contra earl of nithsdale . . but the exception of the order of discussing will not be sustained , unless the defender condescend on , and clear an heritage , to which the anterior heir may succeed , which being a dilator , must be instantly verified , as where it is notour ; and where that cannot be , sometimes process will be sustained against both heirs of line and of tailzie together , superceding execution against the heirs male or of tailzie , till the heir of line were discuss'd , july . . edgar contra heirs of craigmiller . and heirs of line and provision being pursued joyntly , the heir of line renouncing , was assoilied and protestation admitted for adjudication against the heir of line , which the pursuer was ordained to assign to the heir of provision , and was not found oblieged further to discuss the heir of line , or to put him to his oath upon any other passive title , seing the heir of provision required not the same , when the heir of line renounced , nor shew any visible estate which might befall to the heir of line , june . . thomas crawford contra the heirs of the laird of rater . the question is here , what is meaned by discussing , which is not understood by that heirs renouncing to be heir ? july . . cowan contra murray , but in that case the renounced heritage must be adjudged . discussing therefore , is by horning , caption , and apprising , march . . edgar contra heirs of craigmiller ; or otherwise by adjudication , in case the heirs renounce , by alledging his behaving as heir , was found in the foresaid case , cleghorn contra fairlie . this passive succession of heirs in their predecessors debts and obliegments , making them personally lyable thereto , befalleth in three cases . first , when the heir is entered heir . . when he is not entered , but immixeth himself by medling himself as heir , or becoming lucrative successor , after the debt contracted . . when the heir is lawfully charged to enter heir , though he hath neither entered nor medled , if he do not renounce , he is personally oblieged ; and if he do renounce , his person and proper estate is free , and only the heretage is lyable , and the creditor hath action contra haereditatem jacentem . the first case is most ordinary and orderly , the second inferreth the vitious passive titles , gestionem pro haerede , or preceptionem haereditatis : of which in the ensuing titles . let us here consider , first , the charge to enter heir , which is antecedent to the entry ; and then the entry of heirs it self . . the charge to enter heir , is founded upon the act of parliament , . cap. . and it is of two kinds ; a general charge , and a special charge : the general charge to enter heir proceedeth thus ; the creditor , upon supplication , without citation , obtaineth from the lords of course , letters passing under the signet , to charge the party complained upon to enter heir , to the compleaners defunct debitor , within days after the execution of the charge , with certification if he enter not , such process will be granted against him , as if he were actually entered heir : the reason of this charge with us , is , because heirs are not lyable passive , if they enter not , nor immix themselves in the heretage ; and therefore , that the creditor may not ly out beyond the year and day granted to heirs to deliberate , the law hath introduced this remeid , that the creditor may charge the debitors appearand heir to enter , whereupon he hath personal action against him , if he renounce not , and thereupon may reach not only his heretage , but his own proper goods belonging to him aliunde ; and if he renounce , he hath action contra haereditatem jacentem . the general charge to enter heir , may be execute against the appearand heir , after the defuncts death , even within the annus deliberandi ; but the summonds thereupon , must be after the year and day expired , not only from the defuncts death , but from the heirs 〈◊〉 , if he be posthumus , spots . heirs of livingston contra fullertoun ; and therefore a summonds execute after year and day expired , upon a charge to enter heir within the year , was sustained , june . . david maculloch contra marshal and reid . july . . neil montgomery eontra laird of langshaw . there is also an act of sedorunt in anno . allowing general charges to enter heir within the year and day , or within the days of the charge , if the heir renounce and omit that defence , the decreet cognitionis causa , and adjudication thereupon , werefound valid , and that alledgance proponed by another creditor , was repelled ; because it was free to the heir as well to renounce when he pleased , as to enter when he pleased , july . . blair contra broun ; but it is like the posterior creditor hath been negligent , otherwise that prae natura diligentia of pursuing and renouncing within the year , would have been accounted collusive and fraudulent , and so would not prejudge the other creditor doing diligence in the ordinary way . general charges to enter heir , do evanish as incompleat diligences , if the party charged die before litiscontestation or sentence ; and though the fourty days be expired before the death of the party charged , yet the charge useth not to be transferred or made use of against any subsequent heir apparant , but it is not consequent that if the charger die before litiscontestation or sentence , that the same should also become void , because the charger doth not necessitate the party charged to enter or renounce in favours of the chargers heirs , but of himself . and it was found , that an assigny might insist upon a charge at the cedents instance , after the cedents death , though nothing followed thereupon during his life , june . . prior of archattan concra captain of clanronnald . . a special charge to enter heir , differeth from the general charge in this , that the general charge is in lieu of the general service : for thereby the creditor reacheth the person of the apparant heir of his debitor , and his estate or goods established in his person , unless he renounce : and so the general charge is the ground of process and decreet for payment . but thereby the creditor cannot reach the lands and annualrents , which are not as yet established in the person of the apparant heir , he not being specially served thereto , or infeft therein . and therefore , that the creditor may reach these , he must use a special charge , which supplieth the special service and eutry . this special charge , though it proceedeth upon supplication without citation , yet it must be upon production of a decreet at the creditors instance , not only cognitiònis causâ , but for performance . and it is competent in two cases : first , upon the proper debt of the party to be charged . for if the debitor be unentered to some of his predecessors , and so their rights not established in his person ; in that case the creditor must charge his own debitor specially to enter heir in the rights competent to him by that predecessor , with certification if he enter not , the creditor shall have such process and execution against that land and heretage to which he might enter , as if he were actually entered therein : whereupon apprising doth proceed . in this case there is no necessity of an antecedent general charge , which only is used to the effect that the debt may be established in the person of the debitors apparant heir passivè , by a decreet upon the general charge . the other case is , when the debt is not the proper debt of the party charged , but of some predecessor to whom he may be heir : in which case the debt must first be 〈◊〉 against him passive , and then followeth the special charge . in this case the special charge cannot be till after year and day , because it presupposeth not only the summons , but also the sentence upon the general charge , both which must be after year and day . when the debt is the proper debt of the party charged , if the special charge may not be at any time , even within year and day , or if it must be after the annus deliberandi ? this makes for the negative , that it needs not abide the year of deliberation , because the intent of the deliberation , is not so much whether the party charged will be heir , as whether he will personally subject himself to the ground of that charge , for albeit he renounce not , it will not make him lyable to any of the defuncts debts , except it be by his fraud and collusion with one creditor in prejudice of another . and therefore seing he cannot deliberate , whether he will be subject to his own debt , he ought not to have the benefite ofyear and day before the special charge be effectual . yet before the late act preferring the diligence of the defuncts creditors to the heirs proper creditors , there was no reason to allow special charges for the apparant heirs own debt , but more summar execution than other charges so to prefer the apparent heirs proper creditors to be heir . the act of parliament , which is the ground of the charge to enter heir , and is only the rise of the special charge , insinuates an exception , if the heir be major : but the custom of the lords hath introduced the general charge to constitute the debt , and allows both charges against minors . there is no necessity either of a general or special charge , as to real actions , which may proceed against apparant heirs ; as poynding of the ground , january . . oliphant contra hamilton . neither in declarators or reductions . . the remedy against both charges to be heir , is a renounciation to be heir , whereby the renouncers person and his proper estate , will not be lyable for his predecessors debt , but only his predecessors heretage . this renounciation useth to be offered by way of exception in the process upon the general charge : and if the defender be not absent , it is not ordinarily admitted by suspension , except in favour of minors : who though being apparant heirs they take a day to renounce and fail therein , yet they will be restored against the same by suspension , without reduction , january . . kennedy contra mackdougal . spots . minors , nisbet contra nisbet . but if the minority were controverse , and not instantly verefied , it must be by reduction , spots . minors , mr. thomas craig advocat contra cockburn . renounciation to be heir , was admitted rebus integris , though the decreet and charge were six years before , july . . harvie contra baron . yea it was admitted , though there was an adjudication , and the decreet supsended , which was declared to stand , and the apparant heirs person and proper estate were only freed . spots . restitution in integrim , john oliphant contra mr. william blackburn . a renounciation to be heir was not admitted with this quality , excepting to the renouncer certain lands whereinto he was appointed to be infeft by his fathers contract of marriage , and whereupon inhibition was used before contracting of the chargers debt , to the effect he might enter heir to those lands , january . . lady ogilvy contra lord ogilvy . but in the like case , hope inhibition , donald thorntoun contra bailzie , june . . and the like , november . . adamson contra hamiltoun , the apparant heir was suffered to renounce to be heir to his goodsire , except as to those lands which his goodsire had disponed to his father in his contract of marriage , whereupon inhibition was used : which the lords found a singular title consistent with a renounciation of the heretage ex titulo universali . the exception upon renounciation to be heir , is elided , if the defuncts estate be burthened with the heirs proper debt : whichis taken off by the duply of purging the same : as appears in the decisions before adduced . the said exception is also elided by the reply , as behaving as heir , albeit the same were libelled as a several passive title , march . . reguel bennet contra bennet . . the entry of heirs , is either of heirs general , or heirs special . the former requires only a general service , which is necessary to all heirs , except heirs in tacks , pensions , and heirs nominatim , immediately substitute in bands . but heirs of tailzie or provision must be served , that it may appear that the heirs to whom they are substitute are failed . and therefore the only child of a marriage was found to have no title to pursue implement of the contract of marriage , till he was served heir of the marriage , july . . hay of drumelzier contra earl of tweeddale . the general proceedeth thus , a brieve is taken out of the chancery of course , without citation or supplication , for serving such a person nearest and lawful heir to such a defunct . it may be directed to any judge ordinar at the parties option , albeit the defunct nor the heir never lived within that jurisdiction , march . . the laird of caskiben supplicant . the lords may in cases where an ancient or important service is required , choose the judge most fitting for the affair . and when brieves pass of course , they are obtained to any judge desired . but they are easily advocat , and remitted to the macers , with assessors in cases of difficulty . the tenor of the brieve , is by way of precept from the king to the judge , to enquire per probos & fideles homines patriae , that such a person died at the faith and peace of our soveraign lord : and that the user of the brieve , is the nearest and lawful heir . so this brieve , hath only these two heads . and thus not only heirs of line may be served generally , but also heirs of conquest , being to succeed to reversions , heretable bonds , or the like rights , not having an infeftment , or requiring a special service : hope succession , earle of dumbar's heirs . and no doubt , heirs male may be served generally , that they may succeed to the like rights which may be conceived in their favour , and whereunto they can have no other access . and for the same reason , heirs of a marriage may also be served , and heirs of provision in bands . general services , use to be included in special services , as members thereof ; and a retour to an annual-rent , bearing to be granted to heirs whatsoever , and that the persons retoured heirs in the said annual-rent , was found to instruct him general heir , though it did not bear per expressum , that he was heir generally , but only in that annualrent : feb. . . ricartoun drumniond contra stirling of airdoch . the general service of heirs being retour'd , doeth so establish rights not having infeftment ( as dispositions , heretable bonds , reversions , apprisings , and adjudications ) in the person of the heir served , as that no posterior heirs can have right thereto , unless they be served heirs to the person last served heir , though the right stood in the name of the firstacquirer , and not ofthe of the last heir , as an heretable bond or reversion remaining in the name of afather , to whom his eldest son was served heir generally , who dying without issue , the second brother must be served heir to his brother , and not to his father therein : as was thought by all the lords after dispute in praesentia , albeit the matter was agreed without decision . spots . heirs , captain peter rollo contra stewart of 〈◊〉 . the reason is , because the general service is a compleatestablishing of the right in the person of the heir : and therefore as in special services the heir is served to him who died last vest and seised as offee , whereby that right is established ; so in the general service , the heir must be served to him in whose person the right stood last . and though in special services , the heir cannot be served to him who is last served special heir , unless he had been also infeft : the reason thereof is , because the special service as an incompleat right evanisheth , and the next apparant heir must be served again to the same defunct , but it is not so in general services . . the entry of heirs to lands or annualrents , the fee whereof is by infeftment is either by consent of the superior voluntarly , or by law. the former is by the superiors precept , which from the initial words thereof , quia mihi clare constat , &c. is called a precept of clare constat , by which the superior acknowledgeth , that the defunct died last vest and seised in such lands or annualrents , and that the same are holden of him by such a tenor , and that the obtainer of the precept is nearest and lawful heir to him in the said lands , &c. and that he is of lawful age for entering thereto . and therefore commands his bailiff to infeft him therein . infeftment being past accordingly , giveth that party the real right of lands or annualrents if done by the light superior . it doeth also constitute the receiver thereof heir passivè , and makes him lyable to his predecessors debts : but it will not constitute or instruct him heir activè , or give him an active title to pursue as heir . yea it will not be a sufficient title as to the real right of the ground against any other party , than those who acknowledge the giver thereof to be superior , and the receiver to be heir . for if upon any other colourable title , they question any of these , the infeftment and precept of clare constat will not be sufficient alone , unless it have obtained the benefit of a possessory judgment or prescription . . like unto this is the entry of heirs , within burgh royal , by hespand staple , according to the custom of burgh , which is instructed by the instrument of seasing only , without other adminicles , november . . mershall contra mershal , july penult . . wilson contra stewart . in which case , though a seasing by hesp and staple , was sustained to instruct an heir activè : yet it was only because this pursuer had been proven heir passivè the eby , at the instance of that defender . . the securest entry of heirs specially , in lands or annalrents , is by law. the procedor whereof is in this manner : any person may summarely 〈◊〉 a brieve , out of the chancerie , in the same manner , as the general 〈◊〉 which is directed by way of precept from the king , or lord of the regality , having chapel and chancelarie ; whereby the judge to whom it is directed , is ordained , by an inquest upon oath , to enquire , who died last vest and seized , as of fee in such lands , or annualrents : and if at the faith and peace of our soveraign lord , and who is his nearest and lawful heir therein , of whom it is holden in chief , by what service , and what the value of it is , now , and in time of peace ; and if the said heir be of lawful age , in whose hands the same now is , from what time , how , by what service , by whom , and through what cause . it is needless to be curious concerning the number of the heads of this brieve , some parts thereof not being distinct , but explicatory of the former . . these brieves are accordingly direct to the judges ordinary , where the land , or annualrent lyes , as to sheriffs , bailiffs of royaltie , or regality , or bailiffs of burghs-royal . but if there be just exception , against the judge ordinary of the place , or if the lands , or annualrents lye in divers jurisdictions , and so be represented ; warrand will be granted , upon supplication to the lords , that the director of the chancerie , issue brieves to other persons : and frequently , in the case of diverse jurisdictions , they are directed to the macers . . by vertue of this brieve , the judge ordinary , or delegat , to whom they are direct , citeth persons to be members of inquest , upon . dayes : and 〈◊〉 the brieves at they mercat cross , unless they be served at the 〈◊〉 court , when all the free-holders are oblieged to be present , and then the brieve may be served , without further delay , conform to the act of parliament . cap. . and par. . cap. . where it is left arbitrary , to summon the inquest on what dayes the judge server of the brieve pleaseth : or presently , if they be persons of inquest present in the tolbooth , un-summoned . but in all cases , the brieves must be proclaimed publickly , at the market cross , in plain market , where most confluence of people is gathered , so as it may come to the knowledge of the partie , before whom it should be served . and then , that the said brieve be thrice cryed , plainly together : which is by three several oyesses , with a loud and audible voice , before the reading of the brieve , and the sheriffs precept thereupon : and each oyes to be at as great distance from other , as the time required to give the said oyes , thrice : and that the officers of the town be present . but if the brieve come to be served so near whitsunday , or martinmass , that there does not intervene a market day , the brieves may be proclaimed upon any week day ; the officers and six . others of the town being present : yet , either the day of compearance , or the day of citation is numbered , as one of the fifteen . july . . mackculluch contra mackculloch . there is no necessity to summon any defender : in lieu whereof , is the publication of the brieve , by proclamation at the market cross. yet upon the supplication of the partie interessed , warrant was granted by the lords , to the director of the chancerie , that no brieves should be issued for serving heirs to such a defunct , unless they contained a clause to cite the supplicant , who was donatar to the defunct's bastardrie , spots . de haereditarijs actionibus , mackculloch contra laird of martoun . . the inquest being called , consisteth ordainarly of . persons : against whom , like exceptions are competent , as against witnesses . and though craig , lib. . dieg . . regrateth , that any person is admitted to be one of the inquest , whose rent exceedeth not . lib. though they be not pares curiae , nor con-vassalls with the partie to be served , neither of the vicinity , or neighbour-hood , contrary to the intent and ancient custom of these services : yet he acknowledgeth , that it was so ordainarly , especially in the service of noblemen : and custom hath containued the same hitherto . but those of the neighbour-hood were fittest : because , as craig observeth in that place , inquests are in the middle , betwixt judges and witnesses , partaking part of them both for two , or more of them , of their proper knowledge , will be sufficient for witnesses , in the matter of fact ; and upon their declaration , all the rest will serve affirmativè , without any other testimony . and it is like they have been of old , sole judges in brieves , the judge ordinary , having no more power , but to call and order them . and they are yet with the judge ordinary , or delegat , as judges : for they must serve , and do sometimes seal the service with him . . the inquest being settled , the heir apparant gives in his claim , craving to be served heir to his predecessor , in such lands , or annualrents : and therewith the brieve and executions thereof , together with the instructions of the same . . the brieve and claim are as a libel ; against which , any partie compearing , and found to have interest , may propone their exceptions ; which are many more than those , contained in the said last act of par. . cap. . and first against the executions , as being blotted in the date , or other substantials , and so null ; which thereby may not be mended , as other executions : as the name , and sir-name of the followers , and of the defender ; the name of the land , and cause upon which the brieve was purchased . which was found , not only to extend to the blotting of the brieve , but to the executions thereof . july . . mackculloch contra martoun . or as not proclaimed upon fifeen days , which also will be relevant , by way of reduction . or that the defunct was bastard , and had no lawful issue . or , that the pursuer of the brieve is bastard , and so incapable of succession : wherein , if the proponer be more special , and pregnant , than the apparant heir , in his alledgence of being nearest and lawful heir ; he will be preferred . exceptions also are competent , as to the point of right , by proponing , and instructing , that the defunct was denuded of the fee : but exceptions upon paralel rights , that the defunct had not a good right , are not competent here . and also exceptions upon the age of the apparent heir , or his being forefault , or rebel , &c. are here competent : and likewise objections and debates , upon instructions and writs adduced for proving of the claim and head of the brieve . in which cases , if there appear difficultie , or intricacie ; the lords upon supplication , will constitute assessors or grant advocation of the service : and after discussing of the points in jure , will remit the same . either to the same , or to other judges delegat . but no objection or exception will be admitted , unless it be instantly verified ; because this brieve is no brieve of plea , par. . cap. . and therefore cannot admit of terms to prove exceptions . . the debates upon the brieve being discussed , the pursuer thereof must prove , and instruct sufficiently the heads of the same . as first , that the defunct died last vest and seised , as of fee , at the faith and peace of our soveraign lord : which comprehends , first , the death of the defunct , which is ordainarly proven by the knowledge of the members , notorietie , or common fame , without necessity to instruct the same , by ocular witnesses who saw the defnnct die , or buried . but in case of the defunct's death out of the countrey , or if it be dubious or controverse ; the testimony of witnesses , or proper knowledge of two , at least , of the inquest , or testificats from abroad , especially from the magistrats of the place where the defunct died , or was buried , are requisite : or common fame , as to persons who perish , or are killed . the second poynt of this head is , that the defunct died , last vest and seised as offee : which must be instructed , by production of theinfeftment , specially the instfrument of seising , and warrant thereof or ground of the same : for though in antiquis the very precept cannot be shown , yet the charter , or disposition will be a sufficientadminicle , to corroberat thisseising , that it be not accounted only as the assertion of a natar : yea , there is no doubt , but since the act of prescription , consequent seisings having the course of fourtie years , may instruct this point : being sufficient even in the case of competition , which is much exacter than this . and spotswood observeth upon retours , that in anno . a negativeservice was reduced , upon production of a transumpt of thedefuncts seising , out of a protocol transumed before a comissar , with a decreet against the superior ; bearing , to have confessed , that he had infeft the defunct . but here the instructing the defunct's being once infeft , will infer a presumption , that he so continued , and so died infeft : unless the contrary be proven , that he was denuded . the third poynt in this head , that the defunct died at the faith and peace of our soveraign lord , is also presumed : quia quod inesse debet 〈◊〉 . and therefore needs no other probation , but layeth the burthen of probation upon thealledger in the contrary , viz. that the defunct died rebel , or that he was forfaulted , or his blood attiainted : which may be elided , by the replyes of relaxation , dispensation , or restitution . but there useth small notice to be taken of rebellion upon civil debts : but only open rebellion of war , or upon treasonable causes , whereupon the defunct was declared fugitve ; which makes the defunct , as to this poynt , not to die at the faith of our soveraing lord. november . . seatoun supplicant . . the second head of the brieve , is , that the pursuer is nearest and lawful heir to the defunct in these lands . which resolveth in two points : first , that the fee was provided to such heirs , as are contained in the claim , whether they be heirs of line , or of conquest , heirs portioners , heirs of marriage , heirs male , or of tailzie and provision . and this can only be instructed by the defunct's infeftment , and other ancient evidents where in dutio , the presumption is always for the heir of line . so that if it be not sufficiently instructed , that the fee was provided to special heirs , it will belong to the heirs general , of lyne , or conquest according to law : as if it be instructed by three consequent seisings , which ordinarly do not express the the several kinds of heirs . the other point of this head is , that the pursuer of the brieve is nearest lawful heir : which sometimes also is instructed by the infeftment . as when the person to be served , is a member of tailzie nominat : as if the infeftment bear land , or annualrents , to be granted to the feer , and to the heirs of his bodie ; which failling to george his brother , &c. george pursuing a special service , needs no further instruction : because , that he is george , the defuncts brother , passeth without probation as notorium . but ordinarly the propinquity of blood must be proven to the feer , who died last infeft , or to some member of tailzie substitute . for proving whereof , the relation must be particularly condescended on , according to the line of succession , mentioned in the former title , as that the pursuer is the defunct's eldest son , or the eldest lawful son of that son ; or that they are the daughters of that son , &c. or the lawful daughters of the defunct , &c. and it will not be sufficient to instruct , or serve the pursuer nearest lawful heir , without condescending . here also the propinquity of blood , being condescended on , and proven ; it is sufficient , in whatsoever degree can be proven , though it were beyond the tenthdegree . yea , any degree being presumed to be the nearest degree , unless a nearer degree be instructed ; for it resolves in this negative , that there is no other nearer degree ; which as other negatives , proves it self . and that thepursuer is not only nearest heir , according to lineal succession , by course of law ; but that he , nor none of the intervenient blood were bastards , or unlawful children , ( which is instructed sufficiently by common fame , or being so holden and repute , in the intermediates ) it will be sufficient , that nothing is known to the inquest , on the contrary , unless bastardrie be on the other part alledged , and instructed . this propinquity of blood is proven , either by writ , or by retours , infeftments , or designations , or acknowledgments of the feer for the time , bearing such a person to be of such a degree , or relation to him . and in antiquis , writs bearing such designation and acknowledgment , even by others of fame , will be sufficient . for there is not equal evidence of fame required in all cases . and therefore , when the fee is to fall caduciarie , and to cease from the feer's proper blood , lesse probation will serve , than when the competition is betwixt divers persons of the same blood ; or at least members of the same tailzie : amongst whom the pregnantest probation will take place . so the service and retour of the earl of airth , then designed earl of strathern , was reduced ; because the propinquity of blood not sufficiently instructed : which could not be known by the inquest , or was witnesses , the progresse thereof being far past memory of man ; and hear-say , or common fame was not found sufficient . neither were the writs produced sufficient to prove the said earls propinquity of blood to david earl of strathern , son to king robert the second , or to eupham , only daughter to the said david , and patrick graham her spouse : which progress not being sufficiently instructed , the right remained with the king , as the unquestionable descendent of the said king robert the third , and so heir of his brother , the said david earl of strathern so that no other lawful issue , being proven of the said david's own bodie , nor of any other nearer brother ; all his right remained with the king , as descending from king robert the third , who was brother to the said david earl of strathern . march : . the king contra the earl of strathern . there is another exception against this head , that the pursuer hath slain his father , mother , good-sire , grandsire , &c. whereby he , and all his issue are excluded from the heritage of the partie slain , if he be convict thereof by an assyse and the next agnat may be served . par. . cap. . which was not sustained , where the slayer was only declared eugitive , for not appearing to underly the law , in a dittay for slaying his mother . feb. . . mr. george oliphant contra oliphant . . the third head of the brieve is , of whom the fee is holden in chief , or who is immediat lawful superior thereof : and this also be instructed by the infeftments : whereby the giver of the last infeftment will also be presumed to continue superior , and the inquest will serve accordingly ; unless another superior be instructed , or acknowledged by the pursuer . which acknowledgment , in respect of the pursuer's hazard of disclamation , and that the subsequent superior's rights are in his own hand , and he cannot be prejudged by the service ; therefore that poynt will be so served periculo petentis . . the fourth head of the brieve is , by what service the fee is holden , whether it be ward , blench , feu or burgage ; which also must be instructed by the evidents . and if nothing else appear , the fee is presumed to be ward , because that only is the proper fee , and the others are improper , declyning from the nature of fees : and therefore are not presumed , but must be proven : and as craig observes , lib. . dieg . . it will not instruct the fee not to be ward , though it contain a particular reddendo , of a cane or dutie ; yea , though it bear pro omni alio servitio & questione seculari : unless it express the said reddendo to be in name of blench dutie , or in name of feudutie ; so an infeftment , bearing a particular duty payable at whitsunday , and martinmass yearly , cum servitiis in curiis nostris debitis & consuetis ; was found to be a ward holding . hope de feudi renovatione williamson contra thomson : and an infeftment bearing sex denarios nomine canae , with a taxed marriage , was found ward . feb. . . as was resolved by oliphant the king's advocat , in a consultation with the bishop of st. andrews , for entring the lord lindsay to the lands of struthers . . the fifth head is , the value of the fee now , and in time of peace . the reason of inserting of this article , is , because there is due to the superior a years rent of the fee , for the entire of the heir , which is called the relief : of which formerly , title superiority . and that it might be constant , and liquidat , there was a general valuation of the whole kingdom , which is called the old retour , or old extent . thereafter there was a second retour , called the new retour , or extent ; whereby the new retour of some shires was made the triple , and some the quadruple of the old ; yea , different new retours were in the same shyre , but there is no new retours in southern shires , upon the border , which were frequently wasted with war , and little addition in the northern shyres . so the meaning of the article is , what the fee is worth now , that is , what the new retour , or extent thereof is , and what it was worth in the time of peace , or what is the old extent thereof . craig declares , he could never find clear satisfaction in the reason of these expressions , especially , why the old retour is called that which was in the time of peace . and he conjectureth , that because our fore fathers are said to rest in peace , therefore , by the same peace , is meant the time of our predecessors . but i conceive the matter may be better cleared thus . the casualities of the superiority were , of old , the chief patrimony of the crown of scotland , and were further extended than of late : and therefore it seems , that the time of the making the new retour , and cause thereof , was the frequency of war , requiring an addition of the royal revenue and though , through the alteration of the rate of money , neither of the retours be now considerable ; yet doubtlesse they were very considerable in those times . so that by quid valet nunc , is to be understood in time of war , at which time the new retour was made : which is the more evident , by the opposite member , what was the value in the time of peace . so that the old retour , being that value which was before the necessity of heightening thereof , by the war , is fitly said to be that which was in time of peace : and the new retour , that which was made in time of war. and immediately , after the constitution thereof , the brieve was made to expresse it , by the then present time , nunc : which hath been always so continued , because the style of brievs is not to be altered . this is the more evident , that the bordering shyres , which were frequently wasted , by incursions , were not altered in their extent : so that it hath been made in a time of war. the new extent is not only the rule of relief , but of non-entrie , in lands holden ward , and blench : for the new retour mail is only due till general declarator . but in feu lands , there is only regard to the extent for during the non-entry thereof , at least before general declarator , nothing is due : but the feu dutie , and the duplication thereof for the relief . annualrents have no difference , before or after declarator : and therefore are alwayes retoured to the full value of the annualrent , and is thus exprest , quod valet seipsum . . the sixth head is , whether the pursuer be of lawful age . wherein we must distinguish betwixt ward holdings and other holdings , blench , feu , or burgage ; for in these , any age is lawful age. but in ward : holdings , because the superior by vertue of the ward , hath the profit of the land , during the heirs minority ; therefore they cannot enter till their majority , at which time , only the heir is of lawful age : which in men is , twenty one years compleat , and in women fourteen years compleat . january . . laird of kilbirnie contra fairly . yet if the king , or any other superior give dispensation of the age , the service will proceed , but the benefit of the ward continueth with the superior , by the dispensation in the disposition . the heir age must also be instructed to the inquest , either as being notour , by inspection of the persons ; for it would be ridiculous , to prove a gray-headed heir to be major , but in dubio , witnesses , or other sufficient adminicles must be adhibited . . the seventh head of the brieve , is , in whose hand the fee is ; that is , to whom the profit and benefit thereof doth now belong . for ordinarly the fee is retoured ; to be in the hands of the superior by reason of non-entrie , but sometimes retoured to be in the hands of the supeiors , superior , when the sùperior hath lost the casualities of the superioritie , during his life ; and sometimes it is in the hands of the liferenters , by conjunct-fee , or liferent holden of the superior ; which doth not hinder the entrie of the heir to the fee , yet excludeth non-entrie . the remanent particles of the brieve , from what time , how , by what service , by whom , and through what cause ; are but circumstances relative to the last head : that thereby it may appear , first , how long the fee hath been in non-entry , or in the hands of the immediat superior , or liferenter . . how it came to be in that condition : so it became in non-entrie , by the vassal's death , and in the hands of the mediat superior , by the contumacie of the immediat superior , in not entring his vassal ; and in the hands of the liferenter , by the infeftment of liferent , granted by the superior . . the kind of service which relateth to the fee's being in the hands of the liferenter , in respect that the liferent , is oftimes a different holding from the fee , and is ordinarly blench ; and therefore it is the superiors interest , to know what such service is , and also to know by whom , and through what cause , the fee is in the hands of such a person . these circumstances therefore , do not make distinct heads of the brieve , and are not al ways necessary to be retoured , as the former heads be . . the points aforesaid being cleared , and instructed to the inquest , the service is the sentence or decreet : which ought to be sealed with their seals , and with the seal of the judge , to whom the brieve is directed , and is returned to the chancerie , whence it is called a retour , being registrate there , and extracted ; till which it is not compleat : neither doth the service ordinarly instruct the active title but only the retour . the service is keeped in the chancery , for warrant of the retour : yet it was found , that services before the year . were sufficient to satisfie the production in improbations , or reductions , without producing the retour it self ; because at that time the books of the chancerie were destroyed by war. feb. . . lord elphinstoun contra earl of marr. . retours are easily annualled , or reduced , because no desender is called thereto , and the probation in most part , is by presumption , as hath been shown ; and by the proper knowledge of the inquest , or witnesses , whereof there seldom remaineth any testimony in retentis . the lords would not reduce a retour for want thereof ; but ordained the whole inquest to be examined upon oath , upon what evidence they served . feb. . . sr. james mercer of aldie contra william rowen . a retour being found null in one head , was found null in otum , hope , 〈◊〉 ; laird of 〈◊〉 contra a retour of a sister as heir to her brother , was found null by exception upon production of another brother's retour , though posterior , who thereupon was preferred ; albeit an excommunicat papist . feb. . . lord colvil contra mr. walter and christian herds . and a retour of a second brother served heir to his father , where the elder brother was absent , and repute dead : but returning home again , and granting band to a creditor , who charged him to enter heir , and apprised and possessed ; the retour of the second brother was thereupon found null by exception ; albeit twenty years after the date thereof : though by the act of patliament , . cap. . retours are not quarrellable by reduction , or summonts of error ; unless the same be intented , execute , and pursued within twenty years after the service , and retour , in respect of the apprising , and possession within these years , which import an interruption ; and that the second brother's retour was null by exception , and needed no reduction . january . . lamb contra anderson . a retour was also annulled by exception , by referring to the parties oath , that he had no contingencie of blood with the defunct , feb. . . murray contra sinclair and meikle . the like in the case of a woman retoured sole heir : it being instantly verified , that there was another sister . hope . retour of idiotrie , fairly contra fairly . the like was found by reply , referring it to the partie's oath , that he was bastard . spots . retours , murray contra murray . . retours are ordinarly annulled and reduced by a great inquest , of twenty five members : who do enquire , not only concerning the verity , and 〈◊〉 of the retour ; but also concerning the ignorance and malice of the jurantes super assisa : which is not always inferred , when the retour is reduced . as if it be found , that the defunct died not , last vest , and seased ; as of fee ; by instructing that he was denuded : july . . isabel mow contra dutchess of buccleugh . or that he died not at the faith , and peace of our soveraign lord ; by instructing that he was forefault : or that he was not nearest and lawful heir ; by instructing a nearer heir : is no error in the first inquest ; seing these points were presumed , and needed no probation . and in like manner , if by reduction , there be a more pregnant condescendence and probation for another partie , than for the heir served ; it will be no wilful error , unless competition had been at the time of the service . but it must be an evident and grosse error , in the positive probation , specially concerning the death of the defunct , and his being once infeft ; the special relation , and degree of blood of the heir , his age , and the extent of the fee , which though the poynt of least moment , yet will annull the retour . but if there be a probable cause for the inquest , as by production of writs containing wrong extents ; they will be declared free of wilfull error . spots . retours , mark kerr contra scot of hartwoodmires . the manner of reducing of retours , is , by a summons of error against the assysors before the kings council , which is now the lords of council and session . par. . cap. . . though it be the ordinary way to annull retours , by a great inquest ; yet the lords do sometimes sustain reductions thereof as erronious , by witnesses before themselves , without a great inquest , july . . isabel mow contra dutchess of buccleugh . . the reduction of retours being of such hazard to the members of inquest it is statute par. . cap. . that they shall not be reducible , but within three years after the date ; so as to inter error against the inquest : albeit they may be reduced , as to render the retours null in themselves at any time , within twenty years after they were deduced . par. . cap. . which act reacheth only retours after it , but not retours before , and actions against the same ; which prescrive by the general act of prescription , par. . cap. . as was found november . . younger contra johnstoun . . the heir being thus specially served and retoured , if the fee immemediatly hold of the king , he doeth thereupon obtain precepts out of the chancery , of course without citation ; commanding the judge ordinary of the place where the feelyes , sheriff or balliff , to give seasine to the person retoured , capiendo securitatem , taking security for the non-entry and relief due to the king : for which the judge ordinary is countable in exchequer , unless the profites belong to himself as bailiff of regality . if the said judge ordinary do not grant seasine accordingly , the lords upon supplication , and instruments of his disobedience , will grant warrant to the director of the chancery , to issue precepts to an other person as sheriff in that part specially constiture , without first using horning against the ordinary disobeying . spots . david balfour supplicant . these precepts , because of the clause capiendo securitatem , were found to make both the person of the heir , and the ground lyable for the sums due thereby , though infeftment was never taken . spots . sheriff , laird of stobs contra laird of lauristoun . these seasines are appointed to be given by the ordinary clerk of the jurisdictions , parl. . cap. . parl. . cap. . parl. . cap. . if the fee be holden of any other superior than the king , if he do not willingly grant infeftment upon fight of the retour ; the heir will of course get precepts out of the chancery , to charge the superior to enter and infeft the heir so retoured : with certification if he fail , he shall lose the benefite of the superiority during his life : containing also this clause in favour of the superior , faciendo vobis quod de jure facere debet . and upon instruments of the superior's refusal or delay , being thrice required ; precepts are directed out of the chancery in course , against his superior , to supply his place : and if he should refuse , the like certification is competent against him , and so precepts are direct against his immediat superior , till at last it come to the king as supreme superior ; who refuseth none , but thereupon precepts of seasine are direct out of the chancery to the judge ordinary of the place to give seasine . . for preventing of the loss of the superiority during life , the superior being charged , if he obey not , must supend the precepts : which is done most ordinarly upon this reason , that the heir hath not satisfied the relief and non-entry duties , due to the superior , conform to the clause of the precept , faciendo vobis , &c. which craig lib. . dieg . . shows not to have been sustained by the lords , seing the superior had poynding of the ground competent therefore : yet the custom since hath been contrary , july . . laird of capringtoun contra laird of keirs . in which case , keirs being pursued to receive capringtoun in place of capringtoun's immediate superior , foulshiels , who being charged to enter heir within fourty days to the superiority , that he might receive capringtoun his vassal , obeyed not ; and therefore keirs , foulshiel's superior supplying his place , was ordained to receive capringtoun , he always paying the non-entry ; neither was capringtoun the sub-vassal put to take out charges against keirs as he had done against foulshiels , but this action was summarly sustained . the like july . . earl of wigtoun contra lord yester . march . . somervel contra downie . where the annualrenter craving entry , was not found lyable to pay the full annualrent during the non-entry , but the blench duty only . and though in the case of peebles contra lord ross , january . . peebles as superior craving the non-entry duties for three terms subsequent to the ward , to be payed to him by the heir craving entry not according to the new retour , but according to the full duties , as being subsequent to the ward ; was ordained to enter the heir without payment of those duties , without prejudice of his right thereto prout dejure : the reason is rendered , because the duties were not liquid as the new retour is , neither was the case it self clear and unquestionable , and therefore was only reserved . if the superior himself be not entered , he may be charged to enter within fourty days , with certification if he fail , to lose the superiority during his life , conform to the act of parliament . cap. . and if he fail , his superior may be pursued via actionis , to supply his place , and receive the sub-vassal with the same certification , without necessity of charging him with precepts out of the chancery : as was sound in the said decision , capringtoun contra keirs . . the certification of loss of the superiority during the superior's life , though it would seem to extend to all the casualties of the superiority befalling after contumacy ; yet it was found only to extend to the non-entry , which was purged by the immediat superior who supplied the place of the mediat superior : but that subsequent wards and liferent-escheats did notwithstanding belong to the immediat superiors . march . . james hay contra laird of achnames . in which case it was also found , that the feu and blench duties contained in the reddendo , did no ways fall by the said certification : which is clear , because these are not casualities of the superiority . but whether these casualities will not be lost during the life of the contumacious superior , as the certification would import , and will belong to the mediate superior supplying his place , is not so clear : because if the negative hold , the certification which seems so great , signifies nothing . . the next reason of suspension of these charges for entring of vassals , is , that the heir retoured doth not produce the ancient evidents , that the new precept of the superior for obedience may be made conform thereto . this reason was repelled , november . . laird of drum contra laird of ley. and though that might have been admitted , because of old infeftments were simple ; but now since they are clogged with many provisions , which fall under the service of the brieve , there is reason that the ancient evidences should be showen with the retour , and those provisions in the precept offered to the superior ; otherwise the said provisions may become ineffectual : because these precepts and infeftments thereupon , will be sufficient rights , without showing any elder . and seing it is the vassal's duty to show his holdings to the superior , there can be no time so sit as at the entry . a third reason of suspension of these charges , useth to be upon the superior's right to the property by recognition , or upon improbation of the heir's retour . which if decreet be not past thereupon , will be repelled , and only reserved as accords : but will not be sustained upon a reason of prejudiciality of a reduction at the superior's instance . spots . sheriff , laird of taich contra hume . craig lib. . dieg . . moveth this question , when one person is the feer , and another liserenter of the superiority by reservation of his frank-tenement , or liferent ; and the like is , when liferentis by conjunct-fee : of whom in that case ought the heir crave to be entered ? in which he relates , that the lords in favour of the vassal , found in the case of cransioun , brother to the laird of cranstoun , that the heir might enter by any of them he pleased , being without detriment to either of them . as to the casualities of the superiority , how far such casualities belong to liferenters , vide title liferents . . there is another weighty and subtile question in the enty of heirs , whether that person who falls to be nearest heir at the time of the defunct's decease , may not then be entered , though there be a nearer in possibility , or in hope ? there is no question but when a nearer heir is really or probably in being , in the womb , though unborn ; that the service must be stopped till the birth . for in all things working in favour of those unborn , they are accounted as born : and that not only for presuming that there is a living child , not a salfe conception ; but presuming that it is a male child , not a female . and therefore daughters of a defunct cannot be served heirs , if there be a probability of a posthumus child , who is presumed to be a son : whereby they will be excluded till the contrary appear . it was so amongst the romans , who therefore sent the womb in possession for the child . but with us , the fee of necessity must remain in non-entry : and the friends or nearest agnats of the birth , as pro-tutors , may continue the possession . but the difficulty is , when the nearer heir is in possibility , and neither conceived nor born : and it occurs specially in two cases . first , in the case of heirs ascendent : as when the father succeeds to the son , having no issue , brother , or sister . for in that case , though at the defunct's death there be neither sister nor brother gotten or born ; yet the father may have them after . so that the question will be , whether the father may enter immediatly upon the death of his son , having no children , brother , nor sister born , nor in the womb ; or if he must attend the future possibility of a superveening brother or sister ? the other case is in heirs of tailzie , whereof there was a notable instance , long debated in anno , and . on this occasion . the laird of blackwood married his natural daughter marion weir , having no other children , to major james bannatine ; and in contemplation of the marriage , and for a sum advanced by the major for satisfying his debts , he disponed his estate of blackwood to major bannatine and the heir to be procreat betwixt him and marion weir ; which failing , to the heirs of the said marion weir by any other lawful husband ; which failing , to the heirs of the bannatine . the major died without issue : so the question was , whether bannatine's heirs should succeed , or if the succession behoved to be pendent , till it appeared whether there would be any lawful heir of the body of the said marion weir , who was no member of the tailzie her self , but only the heirs of her body . the whole question resulted in this point , whether whilks failing was to be understood failing de praesenti at the time of the feer's death , or failing simply as being 〈◊〉 at no time . the matter was not dicided , but transacted , whereby marion weir being married to william lowrie , and having children during the dependence of the plea , the matter ended by transaction betwixt the laird of corhouse , who was major bannatine's heir , and william lowrie taling burthen for his heirs with marion weir , thus ; that the tailized 〈◊〉 should belong to marion weirs , heirs : that william lowrie for them should pay to corchouse pound scots , as the sum which the major his brother had contracted for payment of blackwood's debts , and had payed out upon contemplation of the marriage . there was a very equitable transaction to the same effect , as if the clause in the tailzie had been interpret thus ; that failing heirs of marion weir , that is , so long as the heirs failed , the major's heirs should succeed to him in the tailzied estate . so that where there became to exist heirs of marion weir , both that they should succeed to major bannatine's heirs , to wit , corehouse who was served heir of tailzie to his brother major bannatine ; and should exclude corehouse his heirs of line . whereby the fee should never be in pendente at the death of the last feer , but that person should be entered as heir of tailzie , who at the death of the defunct feer , or at the time of the service , was nearest heir of the tailzie : whereby corehouse should succeed as heir of tailzie to his brother , because at his death , neither of the two former branches of the tailzie were existent , viz. the heirs betwixt the major , and marion weirs heirs by another husband . and therefore , a judicious and just inquest lerving a brieve for the heirs of tailzie of major bannatine , could not but find that he died last vest and seased as of fee , in the tailzied estate of blackwood ; and that the majors heir of line , to wit corehouse , his immediate elder brother , is the nearest heir to the major by the tailzie , there being no heir of marion weir then existent , conceived or born , she being unmarried . for if she had then had a lawful child , the inquest behoved to have served that heir , as nearest heir of tailzie to major bannatine , then his heir of line . neither would that child be excluded ; because the child could not be heir to marion weir while she was on life : for heirs in that case were only mean'd , such as might be heirs if she were dead . suppose then there had been a son betwixt the major and marion weir , who had been infeft as heir to his father , and died without issue ; marion weir at her death having then a daughter by asecond husband : that daughter would have succeeded as heir of tailzie , albeit a son of marion weir were in possibility , and in the nearest hope , and to whom the title of her heir would be most proper , as being her heir of line , or heir simpliciter : yet the fee would not remain in pendente and vacant till the event of that possibility , but the daughter would be served as nearest , at the last feer's death . and therefore , the inquest could not justly swear , but that major 〈◊〉 heir of line , is his nearest heir of tailzie the time of the service . for if it should be 〈◊〉 , that there were a nearer heir in possibility or hope ; the inquest could not demur thereon : because an heir in possibility is not , but only may be . and therefore , the major's heir is the nearest heir of tailzie , who needs not be served heir of line to the major . if the major had an untailzied estate ; his brother might renounce to be heir of line to him in that estate , and yet might be heir of tailzie to him in the tailzied estate , as being still his heir of line demonshrativè : that is , the person who might be his heir of line . and therefore , after corehouse his death , if he died infeft as heir of tailzie to his brother ; if the question again had arisen betwixt corehouse his son as his heir of line , and marion weirs son being then existent ; an inquest could not justly ferver corechouse heir of tailzie to him in the estate of blackwood : because then marion weirs son was a prior branch of the tailzie , and so behoved to exclude bannatine's heirs of line , which are the posterior branch . therefore , in lieu of this temporary succession of corehouse , resolving in his liferent , as the branches of tailzies frequently do ; he accepted l. which was his brothers true interest , and denuded himself in favour of marion weirs son , the prior branch . so we are left in both to a rational debate , without decision . as to the first case , we have already showen , both by reason and practice , that failing the feer's children , brother and sisters , his father and grand-father succeed , and exclude their collateralls . so thence it necessarly followeth , that these ascendents may be served without delay : otherways they could never be served ; there being ever possibility of the issue of men. yet if they should not be entered before the superveniency , even though but in the womb , the same would take place : but if the ascendent be actually entered , the law affordeth no remedy , reversion , or restitution . neither can this difficultie be a reason against the succcession ofascendents : because the question is only betwixt them and their own children , and nothing operats in favour of their brothers and sisters , or their descendents . as to the other case , in the instance proposed , it seems the succeession ought to have depended , till the event of the lawful issue of marion weir . first , because that had a determined time , by the course of nature , viz. the fifteth or fiftieth two year of her age ; at which time , the issue of women is repute extinct : which is not so in the case of men. secondly , in tailzies upon contracts , and for onerous causes ; respect is to be had to the meaning , and interest of the parties contracters : and in dubio pars mitior est sequenda . and that sense is to be imbraced , by which the provisions can have some effect : and not that by which they can have none . whereby it may seem , that it was blackwood's meaning , that the succession of his own natural daughter should be substitute , in the second member , to the heirs betwixt the major and her : and that while these were possibe , his heirs should have no place . otherways the second membet had been elusory . for if by sailling the heirs of the major with the said marion , at the time of the said major's decease , marions heirs , by another lawful husband should take place ; her other heirs could never take place . for she could not have another lawful husband , at the time of the majors her first husband's death . yet the reasons on the contrary are no lesse pregnant ; and that in this case , as in the case of heirs ascendent , the heirs nearest at the time of the feer's death , should have rights immediatly to succeed : because the fee necessarly must belong to some person , and it cannot hang in the air , on a future possibility . which is a principle , whereof mention and use hath been made frequently before . secondly , if that were the meaning , then at the time of the major's death , the lands were truely nullius : and so as caduciary , behoved to sall to the king , as ultimus haeres . but if it had been so exprest , that no place should be to the heirs of the major's other heirs , till there were no possibility of heirs of marion weir ; the defficulty seems the same , that the fee should be pendent , and nullius . it may be answered ; that even in that other case , the major's other heirs would succeed , notwithstanding that provision , which doth but resolve in apersonalobligation to those heirs , to forebear . yet they were heirs : and if contrary the provision , they should enter , it would give interest to the heirs of marion weir , to compel the major's heirs having entered , to denude themselves in their favour . but there was no such thing in this case . and as to the reasons upon the contrary , though it may seem , black-wood's interest , that the heirs of his natural daughter should be in the second place ; yet non fuit habilis modus to make the fee pendent and nullius . but to that which is the main reason ; otherways the second member behoved to be elusory : it is answerd , that it is not elusory , because the most ordinary and hoped case was , that there should have been heirs betwixt the major and marion ; who , if they had died without issue , the lands would have fallen to marions heirs by another lawful husband , and not to the major's other heirs . so that the case which fell out , that there was no children procreat betwixt the major and marion was not feared , and so not provided for : as it oft-times fares in such cases . therefore we conceive it more probable , that in all cases , that person , who at the time of the defunct's death , is in being born or unborn , may be heir , and immediately enter , so soon as by the birth it appears who may be served . there hath a later case occurred , and been determined on that occasion . the late earl of leven tailzied his estate and dignitie to the heirs male of his body : which failling , to the eldest heir female , without division : which failling to the second son of the earl of rothess : which failling to the second son of the lord melvil , who had married the earl of levens sister : which failling to the second son of the earl of weemes , who had married his mother . leven left three daughters after him , who died all un-entered . rothess having no second son , david melvil second son to the lord melvil , took a brieve out of the chancery , to serve himself heir of tailzie to the earl of leven . the earl of rothess took a gift of the non-entry , in the name of sr. william bruce , who raised an advocation of the brieve , with a declarator , that while there was no hope of a second son of the earl of rothess's body , david melvil , nor no son of a subsequent branch could be entered : or declaring , that the lands were in non-entrie . both members of the said declarator the lords did sustain , and stopped the service : albeit many inconveniences were represented , thence arising . as that there could be no active title for pursuing the rights of the familie , or for receiving vassals : nor any accesse to the estate passivè by creditors . but the lords did reserve to the special declarator , how far the non-entry would reach , whether to the retoured duties only , or to the full rents . but many of the lordswerc of opinion , that david melvil should enter as heir of tilzie ; yet so that if the chancelor had a second son , he or his issue would succeed , as heir of tailzie to david melvil : and neither his own heirs of line , nor the earl of weemes's second son. because at the time of david melvils death , the chancelor's second son would be a nearer heir of tailzie to david than his own son , as being of a prior branch of the tailzie . feb. . . sr. william bruce contra david melvil . but the lords found , that the non-entrie by the special declarator , could not reach to the full rents , but only to the retoured duety ; seing the apparent heir , was neither in culpa nor mora , which doth only infer the full duties . and therefore found the donatar had right to the retoured duties : and that the remainder continued in haereditate jacente , to be managed by the lord malvil , as curator datus bonis of the estate of leven by the king , having power to manage the affairs of that estate as a tutor , or as if an heir had been entred . july . . inter eosdem . . it cometh oft-times to pass , that through the unclear conception of clauses of provision , it becomes dubious , who is thereby constitut feer , and who liferenter : as is ordinary when sums of money are lent , and the obligement to repay is conceived thus ; to be payed at such a term to the lender , and in case of his decease , or failing him by decease , or after his decease to such a person . whence these questions result ; first whether the lender be feer of the sum , and the person substitute heir of provision ? or whether the person substitute be heir ; whether he may succeed at any time , or only if the lender die before the term of payment ? as to the first question , the person substitute is not feer but heir : and the lender is not liferenter but feer ; and therefore may dispose of the sum at pleasure , by assignation , legacy , or otherwise , as other feers may . february . . mr. john leich contra laird of balnamoon . february . . tulliallan contra laird of clackmannan . and where the clause bare to be payed to clackmannan and his spouse , the longest liver of them two ; and in case of their decease , to alexander bruce their son in fee , with an obligement to infeft the spouse in liferent and the son in fee , in an annualrent effeirand thereto ; yet the father was found to have right to dispose of the sum. the like was found feb. . . laird of drumkilbo contra lord stormount : where the father surviving the term of payment , though he freely and without a cause onerous , discharged the sum provided to be payed to him , and failing him to his son ; though it bare a clause of infeftment to the father in liferent , and to the son in fee , but no infeftment followed . the like , though the father and the son subtitute , were both infeft in one seasine : july . . laird of lamingtoun contra muire of annistoun . as to the second question , the more ancient decisions have interpret such clauses strictly , thus ; that the sum payable at such a term to the first person , should be payed at that term to the person substitute ; so that it should be payable at no term thereafter to the person substitute : but if the first person survived the term of payment , though he did nothing to alter the substitution , the same should not belong to the person substitute , but to his heirs . hope succession . spots . assignations , laird of bonytoun contra john keith . feb. . . john leich contra laird of balnamoon . where it was found , that such sums came under the first persons , surviving the term , their testament , and belonged to their executors . but more frequent decisions have with better reason interpret such clauses on the contrary , that the person substitute is heir of provision whensoever the defunct dies , whether before or after the term. because constitution ofheirs is simply , and not ad diem : but mainly because the ordinary intent of such clauses , is to appoint portions for the bairns named therein , who therefore are substitute heirs of provision to their father ; so that if he do not expressly alter or prejudge the substitution , his intent is , that they succeed him whensoever . spots . assignations , currie contra nimmo : relict of john thomsom contra william thomson . the like in a legacy left to a person , and failing her by decease to another : which was not found à fidei commissum , to be restored by the first person to the second at her death . and therefore the assigny of the first person was preferred . spots . disposition , sarah reid contra alexander downie . january . . wat contra dobbie . june . . keith contra innes . therefore such sums bearing no clause of infeftment , yet fall under testament , neither hath the relict a third thereof , hope , successions . in these substitutions , though the person be substitute as heir , yet he is not properly heir , and so needs not to be entered by any service , because he is nominate , and there is no other heir . but intailzies , though some of the members of the tailzie be nominate ; yet because in lands as is before said , the person nominate is never the first heir : therefore there must be a service , to enquire whether the first heir fails or not , which is unnecessary where there is one person only nominate to be heir , concerning which , there needs beno enquiry . though the persons substitute be as heirs , it followeth not that they must be lyable as heirs of provision to the first person 's debt , contracted before the substitution : because they are not properly heirs , not requiring any service they are interpretativè like to heirs , because the nature and intent of such clauses is not to constitute the first person as a naked liferenter , but that they are understood as if they were thus express'd ; with power to the first person to alter aad dispone at his pleasure during his life . so thereafter , only the heirs substitute take place , though in these respects as heirs , yet in reality as secundary , conditional , or substitute feers . but the substitute is lyable , other 〈◊〉 heirs and executors being discussed ; unless the person substitute abstain . because the substitution is a gratuitous deed in prejudice of creditors , post contractum debitum , and so annullable ; and the substitute medling , is lyable to repay quoad valorem only , but never by an universal passive title . july . . fleeming contra fleeming . the next difficulty is , who is feer in provisions , or tailzies of sums , annualrents , or lands in conjunctfee : wherein these general rules do ordinarly take place . first , that the last termination of heirs whatsoever , inferreth that person of the conjunctfeers , whose heirs they are , to be feers , and the other liferenters . . when that is not express'd potior est conditio masculi , the heirs of the man are understood . but these have their own limitations ; as first in moveable goods , and sums provided to a man and a wife , and their heirs , without me ntioning , which failing to whose heirs the same should be due , were found not to fall to the mans heirs , but to divide equally betwixt the man and wifes heirs . february . . bartholomew contra hassingtoun . february . . mungle contra john steill . yea , a clause in a reversion redeemable by a man and his wife , and their heirs , was found to constitute the wife feer of the reversion ; because she was feer of the land wadset . hope , liferent , kincaid contra menzies of pitfoddels . but an assignation to a reversion provided to a man and wife , the longest liver of them two and their heirs , was found to make the man only feer . hope , husband and wife , walter collistoun contra laird of pitfoddels . a clause in a charter providing lands to a man and his wife , the longest liver of them two , and the heirs betwixt them ; which failing , to the heirs of the mans body ; which failing , to the wife her heirs whatsoever : though the last termination was upon the wife , yet the husband was found feer . july . . ramsey contra laird of conheath . the like in a clause providing a sum , being a wifes tocher , to the man and wife , and the longest liver of them two in conjunctfee , and to the heirs betwixt them ; which failing , the wifes heirs ; yet the husband was found feer : and therefore the creditor apprising , excluded the wife and her heirs . january . . graham contra park and jarden . and a bond providing a sum to a man and his wife in conjunctfee , and the bairns procreat betwixt them ; which failing , to two bairns of a former marriage nominatim , containing a precept for infefting the spouse and the two bairns named , whereupon all the four were infeft : yet the father was found feer , and all the bairns of the family , male and female equally , were found heirs of provision ; and the two bairns named were found heirs substitute , failing the bairns of the marriage , january . . thomas beg contra sir thomas nicolson . and a bond bearing a sum borrowed from , and payable to man and wife , and longest liver of them two in conjunctfee , and to the heirs , betwixt them and their assignys ; which failing , to the heirs and assignys of the last liver : found to constitute the husband feer and the wife liferenter , albeit she was last liver , and that her heirs of line were found heirs of provision to the husband . january . . john justice contra mary barclay his mother . a tocher provided to the husband and wife , the longest liver in conjunctfee and liferent , and to their bairns in fee ; was found to make the husband feer , and that the father might alter the substitution . december . . mr. john pearson contra martine . and generally in all infeftments in conjunctsee betwixt man and wife , the husband is always interpret to be feer , and the wife liferenter : albeit the last termination be the wifes heirs ; who are heirs of provision to the husband , unless the right flow from the wife originally : as if she should resign her lands in favour of her husband , and her self in conjunctfee , and the heirs of the marriage ; which failing , her heirs : or if the right did flow from the wifes father by a gratuitous deed. but by the contract of marriage , a father oblieged himself to infeft the husband contracter , and his daughter , in conjunctfee and liferent , and the heirs betwixt them ; which failing , the daughters heirs and assignys whatsoever . and by the same contract , the husband was obliged to provide all lands that she should acquire or succed to , to himself and wife , the longest liver of them two in conjunctfee , and to the heirs betwixt them ; which failing , the one half to the husband's heirs , and the other to the wifes heirs , and their assignys . by both these clauses the husband was found to be feer , and the wife liferenter : albeit the tenement disponed by the father was not nomine dotis , yet there was no other tocher , july . . adam gairns contra isabel sandilands . yet a clause in a minute of a contract of marriage , obliging the husband to infeft his wife in conjunctfee and liferent in such a barony named , and obliging him and his heirs and assignys , that all and whatsoever lands or sums of money should be purchased by him during the marriage , that security should be made in liferent thereof , as of theforesaid barony , to his future spouse in case of no issue of children , the one half of the said conquest to be disponed upon as the wife shall think fit ; the conquest was found to be equally to the husband and wife , and that she was liferenter of the whole , and feer of the half : in respect the minute did not bear whose heirs should succeed ; and that the conquest was all to be expected by the wifes means , therefore she being conjunctfeer , that the one half of the conquest should be disponed as she pleased ; she was found feer of that half , as not being a faculty , but a power of disposal importing property . june . . earl of dumferling contra earl of callendar . . there do many questions arise , as to the succession of heirs of provision , by clauses of conquest in contracts of marriage . the main question is , what is accounted conquest ; whether that which is acquired , and thereafter disponed , be accounted conquest , either as to the wife , or to the heirs , or bairns of the marriage . as to which it hath been shown before , that such provisions infer not only a succession to the heirs , or bairns of the marriage , as heirs of provision ; but thereby the wife or heir , and bairn of the marriage , have an interest as creditors that the husband , or father cannot , ad arbitrium , do deeds prejudicial to that which is once acquired : but the husband is not thereby bound up from disponing to strangers , for causes onerous ; or to other wives or children , for competent provisions . but he may not otherways intervert the design of those provisions , by taking the rights to wives , or children of another marriage ; unlesse he have not means aliunde to provide them . and therefore the husband being oblieged , to take all sums acquired , during the marriage to to himself and his wife inconjunct-fee ; having taken a sum acquired during the marriage , in the name of his second son : his relict was found to have right to the annualrent thereof . july . . knox contra brown. the like , where the bonds were taken originally in the name of the bairns , leaving out the wife . march . graham contra representatives of her husband . but clauses of conquest , of all lands acquired during the marriage , do not extend to lands , acquired and disponed during the marriage . yea conquest of lands was extended where there was disposition without infeftment : with a burthen of a part of the price upon the disponer . january . lady rentoun contra laird of rentoun . spotswood , husband , countess of dumfermling contra earl of dumfermling . and where the clause of conquest bare lands or annualrents ; the same were extended to bonds bearing annualrent , though without clause of infeftment . feb. . douglas contra white . and these clauses are interpret strictly , according to the tenor thereof : for sometimes they only bear lands conquest , sometimes lands or annualrents , sometimes lands , annualrents , or sums of mony , and sometimes also goods or geer : in which case the executors will be obliged to imploy moveable goods , and sums ; for the wife in liferent , and for the bairns and heirs of the marriage in fee. these clauses of conquest do never extend to any thing , whereunto the husband succ eds as heir , or executor ; unless succession be exprest . a clause of conquest , oblieging the husband to take all lands , annualrents and sums , conquest , during the marriage to himself , and the heirs and bairns of the marriage , one or moe ; found to constitute all the bairns of the marriage , male and female , heirs portioners : and that it was not alternative , that the husband might either take the conquest to himself ; and the heirs of the marriage ; or to himself , and bairns of the marriage , at his option . and therefore having taken a considerable sum , in favour of himself and the heir of the marriage , who was his only son ; yet after his death , his four daughters , of that marriage , obtained decreet against their brother , to denude himself of their shares . january . . stewart contra stewart . but conquest is only understood , of what the husband acquired more , after his contract of marriage , than what he had before . and therefore if he acquired lands , annualrents , sums or goods ; if he instruct , that he had as much , ( or a part thereof before ) as he sold ; the superplus will only be counted conquest . and though he have not disponed on any thing he had before , 〈◊〉 〈◊〉 he contract debt for purchasing the conquest ; it will be burthered with the annualrent of the debt : as was found in the former cases . and the like , december . . lady kilbocho contra laird of kilbocho . june . . earl of dumfermling contra earl of callender . the like was found in a provision of conquest , of all the husband 's goods and geer acquired during the marriage , to the wife for her liferent use : which was found to be with the burthen of the husband's debt , contracted before , or after : and so to import only liferent of the free geer . december . jane smith contra margaret muire . and where a husband was obliged to imploy a definite sum , for himself , his wife , and bairns of the marriage ; and also his conquest , and having acquired a tenement during the marriage : to himself , and his heirs whatsoever ; that tenement was applyed to the definite sum , primo loco , and the superplus as a conquest , january . . beaty contra roxburgh . so much for the being and interest of heirs . as for the proving and instructing who are heirs , the most ordinary by way of retour , or infefment as heirs ; or by a service , though not retoured : but those instructions must be repeted in every several process . for so an heir active , was found not to be instructed , by a decreet at his instance , as heir , against the same defender . and in the same matter , without reproduction of the instructions . feb. . . stewart contra wilson : neither was it instructed passivè by a decreet of the comissars , by production of the defender's seisine without 〈◊〉 thereof , had. neither was it instructed passivè , by the kings gratuitous restitution of the apparant heir , of a forefault person ; which made him capable of his father's rights , but not heir nor successor to him . hope , forefaliure , halyburton contra lord balmerino . neither by a bond , wherein the party designed himself heir , or at least apparant heir ; which relateth nothing to the benefit of succession . january . . laird of glenkindie contra crawfoord . neither by an award of a town court , recognoscing a burgess , heir to his predecessor . spotswood heirs , gudelet contra john adamson . title xxviii . behaving as heir . . gestio pro haerede described . . the time when this passive title was introduced . . the reasons of introducing it . . the latitude used in this title . . this title not competent after the intromette's death , or where there was any colour able title . . behaving as heirs by intromission with heirship , only competent against heirs of line . . intromission of tutors or curator's infer not gestionem against the pupills or minors . . cases inferring gestion by intromission with the heirship moveables . . exceptions against this member of the title . as first , the pursuer must instruct that the defunct was either barron , prelat , or burgess , by infeftments of lands , or 〈◊〉 . . the . defence against intromission with heirship moveables , and vitious intromission , that the defunct died rebel , and his escheat gifted before intenting the creditor's pursuit . . the . defense , that the apparant heir intrometted , by a gift to himself , or to his behoofe . . the . when moveables belonging to a defunct remain in his house , whereunto his apparant heir hath right by infeftment . . gestion by intrometting with lands , tiends , or tacks , wherein the intrometter might be heir . . defenses against this member . . gestion by intrometting with the defunct's charter chest. . item , by intromission with sums due to the defunct , or doing any deed , that may transmit the defunct's right . . this passiive title excluded , unless established in the behavers in the behavers life-time . . how far heirs portioners , behaveing as heirs are lyable , and whether behaving as heir excluds the benefit of 〈◊〉 and relief competent to heirs actually entering . gestio pro haerede , is the apparant heirs disorderly entry , and immixing himself with the heritage , without order of law : and therefore it gives him no right nor active title , as heir , but makes him only heir , 〈◊〉 , whereby he represents the defunct in all his debts and burthens , and is lyable for them all . . this passive title , as spots . observes , was but introduced by the lords of session , and was not before the institution of the colledge of justice ; the apparant heir being only lyable for restitution of the single value formerly . as was found in the case of an heir's intromission with the heirship moveable . november . . janet seatoun lady dirlton contra anna 〈◊〉 . . the reason of introducing this passive title , is in favour of creditors , that they be not un-satisfied , or shifted by the heirs of the defunct debitors : who , if they might continue possession of their predecessors means , and estate , and be but countable ; would rarely enter , and hundle up their intromission , and with time ascribe it to singular titles , abstracting their predecessors rights . and therefore it is an expedient custom , that they should either enter legally , and for good and all ; or that they should wholly abstain . especially seing the law allows them a year , to enquire into the condition of the desunct's heretage , whether it will afford them losse or gain : during which time they may deliberat ; and if they abstain , can be troubled by none . so that though it may seem rigourous , for a small intromission to make the intrometter lyable for all the defunct's debts , how great soever ; yet it being so easie to abstain , and the hazard known ; the expediency and favour of the creditor , proponderateth the wilfull disadvantage of the debitors heir . . in this title the lords have always taken great latitude , and sometimes have found smal intromission not relevant , to infer this title , in odions 〈◊〉 november . . laird of dundas contra hamilton of peill . where a decreet of spulzie of tiends being obtained against peill's 〈◊〉 , and never insisted in , till in his time he was convened as heir to his father , who had behaved himself as heir to the good-sire , in so far as he had entred and dwelt in the house of peill : and there being , in the house , the goodsire's best board , standing bed , and brewing caldron ; he used the same , by eating at the board , lying in the bed , and brewing in the caldron : and desivered the good sire's beiff pot to a flesher , for flesh furnished to the defender's father : the defenders mother having keeped possession of these heirship goods for five years before . . yet this condescendence was not found relevant in this case , the passive title was not established before the defender's father's death . as the lords lately found , that these passive titles , quae sapiunt delictum , should not be competent after the intrometter's death . it was also thought by the whole lords , after dispute in presentia upon this title , that it takes only place , where there appeared the apparant heir's animus immiscendi , & adeundi haereditatem ; and not where he hath any probable , or colourable title . spots . heirship , corser contra durie . yet in favourable cases , a smal intromission was sustained as making use of the defnuct's chief bed and board , though standing in the defunct's house : seing the heir entred the house , before he obtained inventary of the moveables , made by authority of a judge ; though the house belonged to himself proprio jure . march . . john bailzie contra hoom of bassenden . or by intromission with a mazer cup of the defunct's , and drinking therein ; entering in the house when he died ; lying in his bed and bed cloaths standing there ; and wearing his silk stockings : though all these were undisposed upon , and that the defunct's mother , who had given them to her son , had medled therewith , who died in a chamber belonging to his mother , and his name was upon the mazer . january . . cleghorn contra fairly . . there are two cases of behaving as heir , viz. intromission with the moveable heirship , and intromission with the lands , teinds , tacks , or other rights which might have belonged to the intromitter as heir . in both which cases the intromission will not infer this passive title , unlesse the intrometter might succeed in the same particulars . and therefore the apparant heir of line and no other , can be lyable by intromission with heirship moveable , because the same can only belong to the heir of line . so the intromission with rents of lands , tiends or tack , will not infer gestionem , unless by the apparant heir , who would succeed therein , according as they are provided to heirs of line , of conquest , heirs male , or of tailzie , or provision . neither will any other intromission be relevant , but what is immediat , or by express warrant , command , or ratihabition . . a tutor or curator's intromission will not infer gestionem upon his pupil , unless he accept the same from the tutor in his accompts . nor the intromission of one having a general commission , as factor , &c. it was so found in the case of a tutor's intromission with the rents of the pupil's predecessor's lands , for the restitution whereof he was only found lyable . nevember . . david boyd contra tailzfair . . behaving as heir by intromission with the moveable heirship , is most unquestionable , when the said moveable is chosen , drawn , and separat by the heir from the remanent moveables . in which case the apparant heir will not be admitted to alledge , that the defunct could not have an heir or heirship moveable , when he formerly drew the same . july . . laird of of gadgirth contra laird of auchinleck . but it seems very hard where the apparant heir's choice of such particulars as the best of every kind for her heirship , doth not evidently appear : for that must be accounted the best , which is such in the opinion of the apparant heir . and yet in favourable cases intromission with any kind of moveables , out of which heirship may be drawn , will be found sufficient , and repute as the heir's choice . as the apparant heir's making use of his fathers board , lying in his bed ; though he disposed not thereof , and though the same were standing in a house disponed to him by his father before contracting of the debt pursued on : seing he continued two years in possesion , and got no warrant from the lords , or made any inventary thereof . july . . gilbert johnston and masson his spouse contra masson . the like by making use of the defunct's bassin , silver spoons , timber beds and boards , without alienation thereof : though the beginning of the intromission was , when the intrometter was not apparant heir himself , but was tutor to another heir who was idiot : seing he continued five years after the idiot's death , himself being then apparant heir . january . . frazer contra monimusk . yet the contrary was found , where the intromission began before the intrometter was apparant heir , there being a nearer apparant heir : though it continued after that nearer apparant heir's death , when the intrometter was apparant heir . july 〈◊〉 . mr. robert cuuingham contra moultry . yea , behaving as heir was sustained by intromission with certain goods of the defunct which might have been heirship , though they were confirmed promiscously by an executor , and bought from him by the apparant heir . but this executor was his own domestick servant , and confirmed to his own behoof . december . . weir contra ker of cavers . the like where the heirship goods were sold to the apparant heir by a stranger : seing they were not delivered to that stranger , but possest by the defunct till his decease , but his possession continued by the apparant heir . nicol. plus valet quod agitur . feb. . . melvil contra melvil . but the contrary was found , the goods being disponed by the defunct to the apparant heir , albeit not delivered before his death , otherways than that the defunct being un-married , came to his son's house , and lived with him till his death . january . . calderwood contra porteous . neither was the same inferred by a disposition of the defunct to his apparant heir of certain moveables , in satisfaction of his heirship moveables whereunto he might succeed . feb. . . meidhope contra hepburn . . the ordinary objections and exceptions against behaving as heir by intromission with the heirship moveable are ; first , that the defunct was neither prelat , baron , nor burgess , to whose heirs only heirship moveable is competent by the act of parliament : the extent whereof is shown in the former title . and therefore the pursuer must condescend , and instruct that the defunct was either baron , prelat or burgess : which would besufficiently instructed by the defunct's infeftments of lands or annualrents , at any time : for thence it would be presumed that he continued undenuded till his death , semel baro semper baro presumptivè . and this will be elided by this exception , that the defunct was denuded before his death . for though some have been of opinion that semel baro semper baro is meant , that though a person once infeft were denuded ; yet his heir would have heirship as a baron . for which i find neither reason nor decision : but it is most reasonable that he who is once proven to be a baron , should be presumed so to continue , unless the contrary were proven , that he was denuded , it was so found january . . straiton contra chirnside . but if the legal was not expired at the defunct's death , he is not esteemed denuded : and therefore his heir hath heirship . feb. . . cuthbert of drakies contra monro of foulis . july . . dumbar contra lesly . neither will it be sufficient that the defunct was once burgess , but itmust be proven that when he died he was acting as a burgess . so that neither the heirs of honorary burgesses , nor they who once were trafficking burgesses and take themselves to a country life , their heirs , will have heirship moveable . and therefore semel civis semper civis is not presumed . neither semel paerlatus semper praelatus : for if a beneficed person were deprived or demitted before the death , his heir would have no heirship moveable . . the second defense against intromission with heirship moveable , and which is also competent against vitious intromission , is , that the defunct died rebel , and his escheat was gifxted and declared before intenting of the creditor's pursuit . june . . gordon of lismoir contra keith . june . . lady spenserfield contra hamilton of kilbrachmount . december . . heirs of seatoun of blair contra sr alexander seatoun . and it is not necessary to alledge , that the apparent heir had any right or tollerance from the donatar . for the exception is equiparat to executors confirmed , against vitious intromission : whereby vitious intromission is excluded , albeit the intromission was before another was confirmed executor , if the confirmation was before intenting of the creditor's cause . but it is no relevant defense , that the defunct died rebel , and so had no moveables , but that they were confiscat . neither was it sufficient that the escheat was gifted , not being also declared , before the creditor's pursuit . as was found in the said two first cases . . the third defense is , that the apparant heir intrometted by a gift to himself , or to his behoofe ; or by a right or tollerance from a donatar . these being prior to the creditor's pursuit , although posterior to his intromission , albeit not declared , are relevant : because the donatar thereby is in possession , and needs no declarator . feb. . . cuthbirt of drakies contra monro of 〈◊〉 . june . . gordon of lismoir contra keith . july . . mr. william innes contra george wilson . june . . lady spenserfield contra hamilton . of kilbrachmont . feb. . . grant contra grant. . the fourth exception is , when moveables belonging to a defunct , remain in his house whereunto his apparant heir hath right by infeftment , wherein the defunct had his liferent or tollerance : if the heir enter in possession of the house , if at his entry he represent to any competent judge , that there are moveables in or about the house belonging to the defunct , which he desires to be inventaried , or that such as cannot be preserved may be sold , that the price may be made forthcoming to all parties having interest ; if inventary or sale be made by warrant of that judge , the continuing of these moveables in the house , or the sale of those which cannot be preserved , will not infer behaving as heir . yet the making use of the things in the inventary , or the sale of that which is not warranted ; yea the ommission out of the inventary of moveables of any considerable value , was found to infer behaviour . january . . helen scarlet contra john paterson . . the other ordinary member of behaving as heir , is by intromission with the rents of lands , or tiends , whereunto the defunct had right by infeftment ; or entering in possession of these lands and tiends unto which the apparent heir would succeed , which is the most direct behaviour as heir ; and is only competent against such persons as might be heirs in that whereinto they immix themselves . and so an heir of line poslessing or intrometting with the rents of lands provided to heirs male , or to heirs of tailzie or provision ; or the intromission of these with the profits of lands or tiends befalling to heirs of line ; will only infer restitution or reparation : but will not infer a general passive title , making the partie lyable to all the defunct's debts . . there are many defenses which use to be proponed against this species of behaviour . as first , it was an ordinary custom to shun this passive title , that the apparant heir granted a bond of purpose to adjudge the defunct's right , upon the apparant heirs renounciation , and then take right to the adjudication : till the lords by an act of sederunt , feb. . . did declare , that if apparant heirs should in time coming , take right to any appryzing or adjudication of their predecessors rights for their own debt , and did 〈◊〉 thereby , whether before or after expyring of the legal ; they should be lyable as behaving as heirs : which hath always since been followed . and therefore no defense for such rights will be sustained , albeit it were a true debt of the apparant heirs , and not a simulat bond granted of designe to adjudge or apprise . neither is it a relevant defense , that the lands or teinds were appryzed or adjudged from the defunct , albeit infeftment had followed thereupon ; if the heir apparant intromet without right , or warrant from the appryser or adjudger , within the legal . feb. . . henrie hamilton contra william hamilton . but it is a relevant exception , that the apparant heir's intromission or possession was by right from an appryser or adjudger , though the legal was not expired : unless the sum were fully satisfied by intromission or otherways . january . . barclay contra laird of cragievar . the like though the apparant heir continued to possesse , for some time after the apprysing was satisfied by intromission . feb. . . cuthbert of drakies contra monro of foulis . yea intromission with the rents of the defunct's land by his apparant heir , waselided by a tollerance from a donatar of recognition , albeit not declared till after his intromission ; the apparant heir paying the single value of his intromission . july . . thomas ogilvie contra lord gray . but a tollerance from apprysers after their intromission , was not found relevant , july . . sr. george maxvell contra maxvel . yet the apparant heir's intromission was elided , because the defunct's rights were improven , though after the intromission . march . . roderick farquhar contra campbel of kingingcluch . and an apparant heir's intromission was elided by a colourable title , though not valid , whereby the heir of a marriage being entered and infeft as heir to her mother , yet her infeftment being reduced , and her father being found feer in a dubious provision of conjunct-fee ; the heir so served , was not found liable , as behaving as heir to her father : but only quoad valorem of her intromission . july . . adam gairns contra 〈◊〉 sandielands . but it was not elided because the apparant heir past by his father , and was infeft as heir to his good-sire , though his father was infeft : that colourable title was not sustained the apparant heir being in mala fide , having the evidents in his hands . november . . rorieson contra 〈◊〉 . yet behaving as heir was not inferred by the heir apparant's intrometting with the rents of lands , which his predecessor had disponed in trust to a third party , for the behoofe of the apparant heir , and whereupon the intrusted was infeft . january . . nicol contra home of plandergest . but intromission by the apparant heir was elided by a disposition by a defunct to the apparant heir's son , his oye , though without infeftment : or by a tack to the apparant heir's husband , though expired before the defunct's death ; as being continued per tacitam 〈◊〉 . january . . reid contra salmond . behaving as heir was inferred by the apparant heir's entering in possession of a coal-heugh , whereof the defunct had tacks for terms to run : albeit the apparant heir took a new tack . june . . atchison contra laird of cockpen . the like though the apparant heir took a gist of the defunct's escheat , who had an unexpired tack of the lands , and pretended to possess as donatar to the single escheat . june . . crawford contra cockpen . . behaving as heir was also inferred by the apparant heir's giving a receipt of the defunct's charter chest , and keeping it two years without protestation , or inventary . june . . ellis of southside contra carse . . behaving as heir will also be inferred by uplifting or discharging sums , principal or annual , which would befall to the party heir : or by doing any deed that might transmit the defunct's right . but it was not found inferred by the apparant heir's renouncing to be heir in favour of the heir male , to whom their father had disponed : seing they gave no right thereby hurtful to creditors ; though they got a sum for their kindness and willing renounciation . july . . lawrence scot contra heirs of auchinleck . neither by the apparant heir's getting benefit by a transaction with a party having right from the defunct , granted on death-bed , and being obliged to acquire the defunct's debts , and apprise thereon , and to communicate the benefit of the apprising : unless a deed had been done communicating any right of the defunct . july . . margaret nevoy contra lord balmerino . but behaviour was not inferred by the apparant heir's taking out of brieves : seing the same were not served . june . . ellis of southside contra carse . neither was it inferred by proponing payment of the defunct's debts , and succumbing : which is only effectual as to that process . july . . murray contra ross. january . . james tailzifer contra john corsan . neither was it inferred by the apparant heirs voluntary payment of their predecessor's debt . january . . commissar of dunkel contra abercromby . . there is the same ground for excluding this passive title , unless it were established against the apparant heir in his own life , as to exclude vitious intromission : which hath frequently been repelled when not established in the intrometter's life . . it remains now to consider , whether behaving as heir being a vitious passive title , will import more than if the apparant heir had been actually entered : which may occur in two cases ; first , where heirs-portioners behave themselves as heirs , whether they will be lyable in solidum , or only pro rata ? . whether those who behave themselves as heirs , will have the same benefit of the order of discussing and relief , as if they were actually entered . as to the first case , the behaviour of heirs-portioners cannot oblige them in solidum , but in so far only as if they were actually entered heirs : which is always pro rata parte , according to the number of the heirs-portioners , non per capita , sed per stirpes , but as it hath been yet undetermined whether heirs-portioners may be lyable for more than their share of the debt , not exceeding their share of the benefit to which they have succeeded ; there is no question but if heirs-portioners behave as heirs , they would be made lyable quoad valorem of their intromission , if it did exceed their share . as to the other case , behaving as heir being a vitious passive title , they will not have the 〈◊〉 of discussing : which is only competent to heirs lawfully entered . yea they will not have relief from the heirs who are lyable before them : because they have in their person no active title . yet it is in arbitrio judicis to ordain the creditor , on satisfaction to assign his right , by which the heir behaving may indirectly attain relief , as assigny by the creditor this favour will not be refused , unless the manner of behaviour be very odious : as when it is fraudulent , by concealing the immixtion ; or that the creditor himself having an other interest , may be prejudged by his assignation . and therefore heirs behaving , if distress'd for moveable debts , they have no direct recourse against executors . and if the executory be mean , so that there be small provisions for the wife and children ; the creditor would not be ordained to assign . and it may so fall out in other cases . the same reason may occur , where heirs of conquest , or heirs male , of tailzie , or provision behave ; if the prior heirs who are nearer of blood have little benefit and provision . title xxix . lucrative successors . . the rise of this passive title . . it takès place though the disposition bear cause onerous , 〈◊〉 it be otherwise instructed . . it is extended to dispositions in contracts of marriage , in some cases . . lucrative dispositions of any part of the heritage inferre this passive title . . this title is extended to dispositions made to oyes , though then not immediate apparant heirs ; but not to brothers , though none then nearer . . whether it suffiseth to infer this title , that the infeftment was after the debt ; or if the disposition whereon the infeftment proceeds , must also be after . . cases in which this title takes no place . there is no nation hath been more favourable to creditors , or more studious of their satisfactions than this ; which hath anticipate all conveyances , devices , and frauds prejudicial to creditors , either in favour of singular successors by simulate assignations or dispositions , without equivalent onerous causes : or in favour of apparant heirs , that they might in no way enjoy their predecessors 〈◊〉 , without satisfying their debt ; which hath given the rise to this passive title , whereby apparant heirs accepting dispositions from their predecessors , of their heretage wherein they would have succeeded , or any part thereof , are made lyable to all their predecessors debts , contracted before such disposition or right . and the acceptance thereof is accounted praeceptio haereditatis , and as an immixtion with the inheritance , makes the apparant heir to represent the defunct passivè . yet with this temperament , that he shall be lyable only to the debt contracted before the disposition or right made to him by the defunct , in which right he might have succeeded . wherein apparant heirs are most expediently differenced from the other singular successors without onerous causes , that these are not ordinarly personally lyable , except in so far as they have disposed of such rights as were fraudulently disponed to them in trust , and in which they were interposed persons to the behoof of the disponer or his children ; but these rights are alwayes reduceable at the instance of anterior creditors . but because such fraud is more incident to apparant heirs , therefore these are personally lyable for the whole anterior debts , and the right granted by them may also be reduced upon the statute . yet the personal obligement doth remain and both are compatible : hope , successor lucrative , gray contra william burgh . . this passive title is not only extended to dispositions of lands bearing expressly a lucrative title , as for love and favour , &c. but though the narrative thereof bear expressly a cause onerous , which being betwixt the disponer and his apparant heir proves not : and therefore the cause onerous must be proven aliunde . vide title reparation upon circumvention : where the narrative of writs amongst conjunct and confident persons , proves not the cause to be onerous . and though there be a cause onerous instructed , it will not be sufficient , unless it be equivalent to the worth of the lands , to substain it against reduction : but if the cause onerous be considerable , the heir will not be lyable simply , or personally , but the right may be reduced , and the heir may be lyble in quantum est lucratus . and therefore an apparant heir having accepted the benefit of a disposition and infeftment , granted by his predecessor to a third party , but to the apparant 〈◊〉 behoofe ; the lords before answer ordained the cause onerous of the disposition to be instructed , reserving to their consideration how far the apparant heir should be lyable personally thereby . january . . nichol harper contra hume of planergest . the like of a disposition of lands by a mother to her apparant heir , though it did bear a sum of money : which did not prove betwixt mother and son. february . . patrick hadden contra george 〈◊〉 . the like was found of a disposition by a father to his son and apparant heir , though the son offered to prove it was for equivalent onerous cause : seing the disposition it self did bear for love and favour and other good considerations . november . . beaty contra roxlurgh . but bonds of provision by parents to children infer no passive title , though the children be heirs apparant . as when the bonds are granted to the eldest son , or bonds of provision , or a tocher to daughters , when there are no sons , though in that case the daughters might be esteemed heirs apparant , although truly they be not ; for a man is ever understood to be capable of having a son : and therefore daughters are little more heirs apparant than brothers . yet bonds of provision or tochers are reducible by anterior creditors , if the defunct had not a visible estate sufficient for these portions and his whole anterior debts . and therefore accepting a tocher did not make a daughter lyable as lucrative successor , though there was no son ; yet the daughter and her husband were found lyble to the father's anterior creditors , for what was above a competent tocher , suteable to the parties . december . . dame rachel burnet contra lepers . neither will taking bonds in the name of the daughters , or assigning bonds to them , make them lyable as lucrative successors . and yet the accepting of assignations to heretable bonds by a father to his eldest son , in which the son would succeed as heir , may inferre this passive title . december . . edgar contra colvil . but where the father in his contract of marriage provided his son to several bonds , which before any creditor pursued , were payed and cancelled , and it did not appear by the contract whether they were heretable or moveable ; the lords did not sustain the passive title , but found the son lyable in quantum 〈◊〉 : and did presume the bonds to be heretable , unless they were proven to be moveable . january . . hamilton of burdowie contra mr. andrew hay . but a disposition of lands to the eldest son , was found to make him lucrative successor , although by his father's contract of marriage with his mother , his second wife , the father was obliged to infeft the eldest son of the marriage in the said lands ; which did import a succession : seing the obligement contained no determinate time , and so might be performed by the father any time in his life . november . . hagens contra maxwell . the like was found in a disposition of lands or annualrents to the eldest son of the marriage : seing these were provided to the heir of the marriage . february . . grizel more contra ferguson . the disponer's bairns portions are not a cause onerous , being granted after the creditors debts ; albeit undertaken and secured by the apparant heir , bona fide , before any diligence at the creditors instance ; not being payed before the pursuit : ibid. because the heir may suspend upon double poynding , and will not be made to pay both the bairns and creditors . . this title is extended to dispositions granted in the apparant heirs contracts of marriage , which in many respects is accounted a cause onerous . july . . gray contra william burgh . where the son was not liberat , though he offered to renounce the lands he had by contract . and it was found that lands being disponed and resigned by the father in favour of the son , by his contract of marriage , though they were for the present wadset and disponed with that burthen , and thereafter redeemed by the son by his own means , so that there remained nothing in the father , but the superiority and the 〈◊〉 ; yet the contract of marriage was found onerous as to the wife 's luerent . and in respect the son was minor and presently revoked the disposition , and renounced all other rights , except that of the wadset which he had redeemed ; he was liberat of the passive title , and the lands declared redeemable by any creditor anterior to the contract . january . . mr. david courtney minister contra weems of lothoker . in the like case , where lands were disponed by a father to the son in his contract of marriage , for a tocher payed to the father for some debts and bairns portions far within the worth of the land ; the son was not found lyable in solidum as lucrative successor , nor yet the pursuer put to a reduction : but the son was in hoc processu put to compt and pay the superplus of the true price of the land. june . . lyon of murask contra bannerman . . this title takes place not only in universal dispositions , of the predecessor's whole estate ; but a disposition of any part thereof , is sufficient : seing the least as well as the most , is praeceptio haereditatis . . this title is extended also not only to dispositions made to , and accepted by the immediate apparant heir ; but also to the mediate apparant heir , so that he be alioqui successurus , by the course of law , necessarly : as what is granted to the eldest son of the apparant heir . because the ground of this title being to prevent deeds in favour of the disponer's successors , prejudicial to the disponer's creditors , whose debts are anterior ; the reason holds as much where he dispones to his oye , who by the course of law is to succeed to him , as to his son. . it is praeceptio haereditatis in the oye aswell as in the son. and therefore the rule in this title is not , that the accepter be that person who would succeed at the time of the disposition , and so may seem to be immediat apparant heir pro tempore : for so a disposition by one brother to another , or to a brother's son , the disponer for the time having no children ; will not inferre this title . november . . lawrence scot contra david beswell of auchinleck , nephew to umwhile auchinleck . december . . heirs of seatoun of blair contra sir alexander seatoun . the like though the disponer was an old man , the time of the disposition , and had little hope of issue . december . . lady spenserfield contra laird of kilbrachmont . the reason is , because the brother or brother's son is not alioqui successurus by the course of law , while the brother's children are in spe : and therefore such are never called apparant heirs ; neither is the presumption in them , that the defunct would , in prejudice of his creditors , adventure simply to dispone to such , while he had hope of issue : but all this holds in oyes . and it was so decided january . . lady smeatoun contra richardson of smeatoun : where an infeftment was granted by the good fire to the oye , reserving his son 's liferent . and in the like case , the father who was but liferenter , and his oye feer , by the grandfather's disposition , was found lucrative successor . february . . lightoun contra laird of kinaber . but this decision was stopped to be further heard . . but here occurreth the question , if the disposition be anterior to the debt contracted , but the infeftment posterior to the said debt ; quid juris ? the ground of doubt is , that though the defender had a prior disposition , yet by the infeftment only , he was successor : seing lands pass not by dispositions , but by infeftments : and therefore he was clearly successor post contractum debitum , and also ex causa lucrativa . . if this were not the meaning , the intent of the law would be frustrate : for it were easy to make dispositions and to keep them up , and in the mean time to contract debts , when the creditors could not know the debitor's condition , and so contracted bonafide . this case was not decided : but the like case was formerly decided negativè , that the infeftment though posterior to the debt , did not inferre this title ; being upon a disposition anterior to the debt . february . . lightoun contra laird of kinaber . the like was found , where there was an obligement in a contract of marriage , to dispone lands , prior to the debt contracted : albeit both the disposition and infeftment were posterior to the debt , and did not bear expressly in implement of the contract ; which was presumed , seing no other cause was showen . july . . thomas ferguson contra lindsay of wauchope . for answer to the contrary reasons ; the first is upon misapplication of the words , post contractum debitum : which are not to be referred to successor thus , successor post contractum debitum ex causa lucrativa ; but successor ex titulo lucrativo , qui titulus est post contractum debitum . so that if the lucrative title be not after the debt , this title takes no place . as to the other reason , the same inconveniency will be of dispositions to strangers , which being keeped up , creditors may contract bona fide . and yet inhibition before infeftment will not be effectual , unless it preceed the infeftment and the disposition : which will also be effectual against the apparant heir . but if there be fraud in keeping up such dispositions , which will be easilier presumed in the person of the apparant heir , than a stranger ; it will be sufficient upon the common reason of fraud , to reduce the infeftment , though the general passive title be not inferred . the like was found where there was an obligement in a contract of marriage , to dispone lands , prior to the debt contracted : albeit both the disposition and infeftment were posterior to the debt , and did not bear expressly in implement of the contract ; which was presumed seing no other cause was showen . july . . thomas ferguson contra lindsay of wauchope . and lucrative successor was not found inferred by the infeftment of a father to his apparant heir after the debt contracted : seing there was an anterior obligement in the apparant heir's contract of marriage , to grant the infeftment , and inhibition thereupon . nicol. de haereditariis actionibus . march . . ker contra sterling . . this title can take no place , first , where the party to whom the right is granted is not alioqui successurus in that same right : because it cannot be praeceptio haereditatis where there can be no haereditas . and so a disposition to an heir of tailzie , of lands not provided to that heir of tailzie , cannot inferre this title : though it may be reducible , as without a cause onerous . neither will a disposition of tailzied lands to an heir of line , inferr this title . for in that case it cannot be praeceptio haereditatis : albeit the disposition will be reducible , as without a cause onerous . but there is more reason , that rights acquired originally by predecessors , in name of their apparant heirs , cannot infer this title : because the predecessor himself never being feer in that right , the apparant heir could not be his heir therein . neither can such rights be reducible by the act of parliament , . because the falling thereof , will not make the fee return to thepredecessor who never had it : but the same can only be reached by a declarator , that it was acquired by that predecessor's means , after the debt contracted ; and therefore ought to be affectable , as if it were in the person of the debitor , or his heir : which hath frequently been found relevant . title xxx . executorie , where , of testaments , codicills , legacies , relict's part , bairns part , dead 's part , confirmations , and office of executorie . . the romans carfeulnesse to preserve the freedom of testing . . the ancient form of testing amongst the romans . . the modern form of roman solemn testaments . . their nuncupative testaments . . their military testaments . . requisits for roman testaments . . how far sons in familia could test. . persons who could not test. . persons who could not be institute , or substitute . . restriction of the freedom of testing , in favour of children . . the legittimes ofchildren . . the falcidian portion . . the difference of the legittime and falcidian . . the trebellianica . . fidiecomissa . . codicills . . institution of heirs . . substitution . . substitutions vulgar and pupillar . legacies . . legacies are void if the legatar die before the testator , or if the testament be void ; unless there be therein a codicillar clause . . the kinds and effects of conditional legacies , or fideicommissa . . special legacies . . conditions adjected to legacies in fideicommissa . . the inventary . . collation . . jus accrescendi . . the power of testing with us may be restricted by contract or portion . . it is restricted to moveables , and extends to no heritable right . . wherein the office of executors consists . . the nearest agnats are successors in moveables to the intestat . the line of succession in moveables . . the nomination of executors , and codicills . . solemnities requisit in testaments with us . . the effects of testaments made abroad . verbal legacies . . the power of testing is competent to minors having curator , without their consents , and to wives without their husbands consent : but not to pupills , idiots or furious persons . . legacies with us . . legacies and donations mortis causâ are proportionally abated if they exceed dead 's part . . whether special legacies will be so abated . . the effect of legacies of things not in the power of the testator . . the effect of legacies left siverally . . the relist's part of the executory . . the bairns part . . what foris-familiation is . . collation by our custom . . sums bearing annualrent without clause of infefiment , fallin executory as to the defunct and his children , but not as to the relict . . heirs have no benefit of the bairns part , except they renounce in favour of the remainent bairns . . if there be but one childeun-forisfamiliat , the same is both heir and executor , and has the full bairns part . . the executory is divided as it was at the defunct's death , and the time of the confirmation . . the interest of the nearest of kinne . dead 's part . . the interest of executors nominat , and dative . . the order of confirming executors . . how executors nominat in england are admitted here . . licences to pursue . . executors interest , as to the rent the year the defunct died . . executors have right to steellhow goods . . co-executors and their power . . the effect of executors assignations before sentence . . executors ad non executa . . executors ad ommissa & malè appretiata . . executors creditors . . how far executors are lyable passivè , and of their diligence . . the releef betwixt heirs and executors . . how executors may safely pay creditors . . what time executors have to do diligence , before they be lyable to creditors . . all executors , and creditors doing diligence within six months ofthe of the defunct's death , come in pari passu . . after six moneths , creditors come in according to the priority of their diligence . . executors paying relicts , bairns and legatars , after . monethes , and before citation of creditors , are secure ; and the creditors have only repetition against these . . executors after obtaining bond or decreet , are not in pleno dominio , of the defunct's goods : nor do they fall under the executors escheat , but the defuuct's creditors are preferable to the executors proper creditors . . executors may pay priviledged debts , at any time . . arrestments hinder the executor to prefer any other creditor . . compensation is not competent to the defuncts debitors , upon debts due by the defunct , assigned after the defunct's death . . exoneration of executors . . exhaustine ofexecutors , how competent . . the diligence necessary to liberate executors : executors are not obliged to depone upon their knowledge of the defunct's debt , except as to their own share . . how farco-executors are conveenable severally . . executors furviving , are not lyable for the share of the deceassed in so far as they executed the testament , and lifted their part . . executors are lyable for the inventary , without proving their intromission . . where testaments are to be confirmed . remains now the other branch of succession , viz. in moveables : which is of two kinds , the one of executors , which is the only lawful succession in moveables , and therefore is both an active and passive title ; the other illegal and vitious , and is therefore called vitious intromission , and is only a passive title . of the former in this title , and of the later in the next . the whole interest of the moveable goods and rights of defuncts , is comprehended under the term of executory , wherein not only that which proper to the executor by his office , or succession , is contained ; but also that which befalleth to the defunct's relict , children , and nearest of kinne and to his legatars and creditors . we shall not here repeet what hath been said of succession in general , of which at large in its proper place , tit. . where the rise and rule of succession , both according to equity and the law of nature ; and according to the positive law , and custom of this and other nations , is held forth . this much only in general ; that the will of the owner is effectual in equity to dispose upon his rights , either to take effect during his life , or after his death . the former being compleat , constitutes a present right , irrevocable by the disponer : the later is ambulatory , and dependent upon the owner's will , and hath alwayes implyed in it the condition of his death ; and therefore may be altered , abrogat , and derogat by a posterior will. and thence it is called the later-will of the defunct : because the later-will is alwayes effectual , and preferable to the former will. it is also more favourablie interpret and extended , than contracts or dispositions amongst the living . and if there were no positive law , the expresse or presumed will of thedefunct would be the adequat rule of his whole succession . but succession being of great consequence , whereby all the rights of men are at least once , and many times oftner , transmitted in every generation ; therefore positive law for utilitie's sake , hath justly and fitly preicribed the forms and solemnities thereof , that it may be clear and sure : and hath applyed remedies to make it effectual . and hath restrained the power of the defunct's will in some cases , especially in favour of the defunct's wife and children , whom by the law of nature , he is obliged to provide . and hath also declared the degrees of succession , meaning , and presumption of the will of defuncts . . the romans of all nations , were most solicitous in this matter , and accounted it a publict interest ; reipublicae interest , voluntates defunctorum effectum sortiri . and therefore they did exactly guard the power of testing , not only against violence and fraud , by severe punishments , and exclusion from all benefit of succession ; but also they rejected and annulled all pactions , restraining the power of testing , as pactum corvinum de haereditate viventis . which was not only extended to pactions made by persons disposing of the heretage of persons , to whom they might succeed , but even to pactions of persons in relation to their own heritage . they did also clearly determine what persons had not the power of testing ; and in whose favour testaments might not be made ; and the manner of all kindes of testaments , institutions , and substitutions of heirs , legacies , fideicommisses , and the sense of most ordinary clauses in all these : and also the succession of the intestat . which hath made the matter of succession swel into a mighty bulk , and to make the chief integral of the civil law ; wherein to insist here , would neither be necessary nor profitable for our purpose : but as in other cases , a short sum , without ampliations or citations , will suffice . . succession amongst the romans , was either by testament , or from the intestat . the ancient way of testing amongst the romans , was either in peace and solemne , which was done in presence of the people , being convocat callatis comitiis : or otherways by a simulat sale , per aes & libram ; wherein the testator , in presence of five witnesses romans , did hold a ballance , and weighed money therein , and under that form , as it were , sold his inheritance for the money , and asked witnesses . or otherwayes testaments were made in precinctu , when they were standing in battaile before the fight , without other solemnity than three or four witnesses . this was the ancient form of testing . the matter and power of testing was very absolute , according to equity : concerning which , this was the law of the twelve tables uti quisque rei suae legasset ita jus esto . but the after-course of the civil law , changed both this ancient manner and power of testing , and redacted testaments into three kindes , solemne , nuncupative , and military . . solemne testaments were so called , because they required the most solemnities : as first , that the testaments were in writ , the name of the heir , at least , being written by the testator , or one of the witnesses . secondly , there behoved to be seven witnesses , specially required , all present , and subscribing by themselves , or another , and sealing the testament at the foot thereof : none of which might be women , pupills , servants , prodigalls , or furious persons ; neither the heir himself , or any of his domesticks : each subscription bearing . i titus , &c. being called and required to be a witnesse to this testament , which is contained in this schedule , have subscribed it with my hand , and sealed it with such a seal . thirdly . the testator also behoved to subscribe thus , i mevius , &c. declare this schedule to be my testament , and i have tested as is contained therein : or by another if he could not write , who stood as the eighth witnesse . fourthly , the testament behoved to be made by one continued act , without interruption of any extraneous act , least by extraneous acts the mind might be diverted , or inconsiderat , in so solemne an act. so the testament was closed up , and sealed . and if the testator opened the testament , it was presumed he changed his mind . but after his death , the witnesses were called together , to acknowledge their seals and subscriptions , at the opening thereof . or otherwayes it was opened by the authority of a judge , before other honest witnesses . and if any of the witnesses acknowledged not their subscriptions , the testament was held suspect . . a nuncupative testament is that which was by word only , before seven witnesses qualified as aforesaid . yet two witnesses were sufficient in a father's testement amongst his children ; and a woman might be witness therein . or in a testament for pious uses , five witnesses did suffice , where there was penurie of witnesses . . a military testament , was that which was made by the souldiers in warre : wherein they had these priviledges . first , when they were in procinctu , ready to joyn battaile , any declaration of their mind , by word or writ , though it were written but in the sand , was sufficient . it was also valid , if made during the expedition , with such solemnities as can be had for the time : yet so , that if the testator lived a year , in which he might make it more solemn ; it became void . military testaments have this further priviledge , that the testator may institute for a time , and may institute in a part , and so die partly testat , and partly intestate : which is against a principle of their common law. . the ancient absolute power of testing , was by the subsequent course of law , cleared and restrained , not only by the declaratory laws , finding testing , and otheracts invalide , as done by furious persons out of their lucid intervalls , and by idiots , and by pupills , who have not the use of reason ; or those made by fraud , or error in the substantialls , or by extortion : but more particularly it is limited in these particulars . . first , filii familiâs , persons in the power and family of their fathers , could not test upon their goods ; whether profectitious from their father , or adventitious aliunaè ; even though their father consented : but only on their bona castrensia , acquired in warre ; or quasi casirensia , as in militia togata . . secondly , captives with publict enemies , or persons given in pledge to them ; or persons condemned to capital punishment , whose goods are con fiscat ; or those condemned of infamy ; could not test . . thirdly , by testament some persons can neither be institute nor substitute heirs , such as the spurious children of the defunct : to put a restraint upon such unlawful procreations . but children begotten on concubins , while those were tollerat , could not be institute or substitute , ( these being lawful children ) in more then a sixth part of the heretage . only there could be left to spurious children , legacies for their necessary aliment . neither could persons guilty or condemned of treason , be institute or substitute heirs . . fourthly , power of testing is restrained in those who have lawful children : who were necessitat , either to institute their children their heirs , or expresly to exheredat or disheirish them , expressing the cause of so doing . for if these institute others , and past over their children in silence , the testament was void . and if they unjustly exheredated them , they had quaerelam inofficiosi testamenti , to annul the testament , as done against the natural dutie of fathers , without just cause . . fiftly , the power of testing was restrained in favour of lawful children , that the testator could not by legacy or fidei commissum abate from the children their portions natural , due to them by the law of nature , obliging parents to entertain their children : which the law defyned to be the fourth part of the inheritance , debts deduced , when there were fewer than four children ; a third part , when four ; and a half when more . if there be no children , this legittima is due to the parents , grand father , and grand mother ; but not to brethren , unlesse a base person be institute . which portion natural the testator could not prohibite the children to withdraw from the heretage . . sixthly , the falcidian law did restrain legacies , that they might not exceed three fourth parts of the inheritance : so that there behoved to remaine one fourth part to the heir , which therefore was called portio falcidia . and therefore if the legacies did exceed three quarters of the free inheritance , debts being deduced ; they were abated proportionally , that the falcidia might remain to the heir . . this portio falcidia differs from the natural portion in this , that the testator could not prohibite the heir to take the benefit of the portion natural ; but he could effectually prohibite the heir to take his falcidia . the reason whereof was , because the falcidia was introduced , to the effect that the wills of the defuncts might be execute : which could not be , if the legacies left nothing to the heir considerable , but trouble , as oft-times it falls out . so that this being a remedy in favour of the testator , to make his will effectual ; he might prohibite it : and could not be presumed so irrational as to prohibite it , if he had not good ground to know that his heirs would enter without it . or indirectly , if the testator prohibite the alienation of the heretage , the law esteemed it as a prohibition of the falcidia . the falcidia had no place in military testaments , or in legacies left to pious uses , or left to the relict of the testator , nomine dotis . the reason of these exceptions was in favour of souldiers , pious causes , and tochers . and if the heir ommitted to make inventary , he lost the benefit of his falcidia . when the fiduciary succession became in use , whereby heirs were institute or substitute , to the use and behoofe of others , to whom they were to restore the inheritance , or some part thereof , or thing therein ; which therefore was called fideicommissum , as being committed to the trust and faithfulnesse of the heir : the senatusconsultum trebellianum did introduce the reservation of a fourth part to the heir , institute or substitute by these fideicommisses , in the same way that the falcidia was a reservation from legacies . and therefore this fourth part was called trebellianica : which therefore , hath the same exception with the falicidia , of which in the former paragraph . and this further , if the heir were forced by law to enter , or if within a year thereafter , he do not fulfil the will of the defunct ; he lost the benefit of his trebellianica . and if he had either legacy or portion of the inheritance , it was reckoned to him as a part of his trebellianica . . the use of these fideicommissary trusts was , when the testator designed his inheritance , or some of his goods , either for persons that were not capable to be heirs , or not fit to manage ; as through pupilarity , prodidigality , or some other defect ; then he institute other heirs fit for the present managment ; and desired , or required them by his testament , to restore the inheritance , or some part of it , to such persons . and that either simply to a day , or conditionally . and oft times the day of restitution , was after the heirs own death , whereby he had his liferent or vsufruct thereof . at first this was wholly left to the trust and faithfulness of the heir , without any legal remedy or compulsion : which afterward were adhibite , with the reservation of the trebellianica , as hath been shown . but where the persons in whose favour the trust was , were such as could not be heirs , or succeed , as spurious persons ; then those heirs were not compelled to restore . the essential and chief poynt of a testament is , the nomination of an heir , either by institution , or substitution : without which it was not allowed the name of a testament , but only a legacy , or at best the name of codicills , which is called by some an imperfect testament . . codicills might be made before five witnesses , either in writ or nuncupative : and they were ordinarly additions to testaments . yea because , if when testaments , through want of solemnity , became voyd , the legacies failled ; therefore there used to be adjoyned this clause , if this be not valid as a testament , let it be valid as a codicill , which thence is called clausula codicillaris . . the form of institution of heirs , was in plain and short terms , thus ; titius haeres esto . these were either institute solly , or joyntly : and that either equally , or indefinitely , which is understood equally ; or otherways by certain portions . no institution can be conditional , or to a day : or if it be , it is presently effectual . because the heritage cannot hing in the air , and belong to none : else it would prove caduciary . yet in military testaments this priviledge is indulged , as hath been said . . substitution is the nomination of substitute heirs , who take place failing the institute . there may be as many subordinate members of substitution as the testator pleaseth . the institute or prior substitute , is found to fail , when either he cannot , or will not enter : but if once he enter , the substitution for ever evanisheth . and if he or his should be extinct who was institute , the heretage becomes his patrimony , and no more the first defunct's heretage : and so falls not to the substitute , who is heir of the first defunct ; but to the heirs of the institute . it is otherways with us , in tailzies , or other substitutions , as hereafter will appear . . substitution was of two kindes , vulgar and pupillar . pupillar is that , whereby fathers were allowed in their testament , having named their children being pupils , to be their heirs , to substitute heirs to them : which substitutes had not only the father's heretage , but the son 's , dying in pupillarity . under which is comprehended that which is called substitutio exemplaris : whereby parents having institute their children , being idiots , their heirs ; did substitute other heirs to them , if they entered not , and died idiots , or furious . and in military testaments , the pupillar substitution is not only effectual , if the testator make his own will , and institute his children : but though he only substitute . and though the children survive their pupillarity ; yet if they entet not , the substitution is valid . all other substitutions are ordinary , or vulgar ; when the testator institutes heirs , and substitutes others : but hath only effect as to the testator's own goods , if those institute enter not ; but not as to the goods of heirs institute . . the matter of next moment to the institution or substitution of heirs , is the leaving of legacies ; which may be left in testements , or codicills , and without either in some cases . any thing may be legat , which is in the defunct's goods , alienable ; except in so far as is restrained in the legittima , falcidia , & trebellianica : of which formerly . yea though the thing legat be not the testator's , the heir is obliged to purchase it to the legatar , or the value of it , if the testator knew it was another's : for then his mind is followed , to make it effectual ; at least by the value . but if the testator legat any thing , thinking it to be his own , which is not his own ; the legacy is ineffectual for legacies being donations , they are undestood to be given , but so far as the giver hath right : and therefore there is no warrandice of them , as to the testator's right . but if the heir deliver any thing , not specially legat , in satisfaction of the legacy ; if that be evicted upon defect of the heir 's right , he is lyable for warrandice . as if an heir were appointed to give in legacy , a horse worth such a price , not being in the heretage , but delivered by the heir , to satisfie the legacy ; if the horse be evicted , the legatar hath warrandice against the heir : because it is not the defunct's right , but the heir 's right that fails . legacies , and particular fideicommisses , not being for restitution of the whole heretage , or any special part , or quota thereof ; are equiparat : as fideicommisses of the heretage , or a quota thereof are equivalent to the institution , or substitution of heirs . and either legacies , or fideicommisses may be general , whereby a quantity is left ; or special , whereby an individual body is left , as such a horse , &c. so may they either be left purely , or conditionally , or to a day . . this is common to all legacies , that if the legatar die before the testator , the legacy becomes void , and is not transmitted to the heirs , and successors of the legatar . neither doth the legacy belong to the legatar ordinarly , if the testament wherein it is left be void , for want of the requisit 〈◊〉 , ( of which formerly ; ) unless it have the codicillar clause , or if the heir do not enter , or if the codicills in which it is left , or if the testament , having the codicillar clause , want the solemnities requisit to codicills . . if the legacy , or fideicommisses be conditional , the legatar dying before the existence of the condition , loseth the legacy ; and doth not transmit it to his heir , if it be a casual condition : but if it be a potestative condition depending upon the power of the legatar , and not upon accident without his power ; or if left to an uncertain day , which is equivalent to a casual condition : if so the condition be in the legatar's power , ( unless he did all diligence to satisfie the same ) he loseth the legacy . but if the condition fail not through his fault , as being offered and not accepted , or being impeded by any third party ; the legacy is thereby transmitted to the legatar's heirs , who are only lyable for the interest of the condition . legacies pure or to a certain day , are transmitted by the death of the testator ; especially if the heir be entered , though the day be not come : quia cessit dies , sed non venit . . in the several cases , by which legacies are established , and transmissible , the property thereof is in the person of the legatar , if it be a special legacy : but the possession thereof remains in the heir , against whom the legatar hath not only a personal action , for payment or delivery of the legacy ; but hath also a real action of vendication , against him , and all other havers thereof , for delivety of the same . so fideicommisses , which are not conditional , are not alienable by the heir , but are recoverable from every singular successor . . conditions adjected to legacies , or fideicommisses , are of diverse kinds ; of which shortly observe ; . that when conditions are copulative , they must all be joyntly performed : or when diverse conditions are severally set down in several places of the testament . but if they be disjunctive , the 〈◊〉 formance of any of them is sufficient . . if the condition be divisible , and performable by more persons ; each performing his part , hath access to his legacy . but if it be imposed upon one person , the performance of a part thereof , doth not give access to a proportionable part of the legacy : but the condition must be wholly performed , otherways there is no part of the legacy due . . conditions impossible in facto , as not being lawful , regularly are void , and as not adjected . amongst which that is accounted one , if marriage be absolutely prohibited : which the authenticks restricted only to maids , and found it lawful in the case of widows , to adject such a condition , si titionubat ; and therefore if the legater married not to that person , the legacy was not due . in legacies and fideicommissis , a false narrative vitiats not : as when the efficient cause , mentioned therein , was not true . for example ; if a legacy be left , bearing to have been for services done , generally or particularly ; albeit these were not done , it is valid . but the expression of the final cause implys a condition : and if it be not performed , the legacy ceaseth , causâ non sequntâ , as when legacies are left for such uses , services , or deeds to be done . legacies being gratuitous , are of the nature of donations : and therefore are revocked by ingratitude , ipso facto ; not only in reaching the defunct , as if inimity rose betwixt him and the legatar ; but even after his death , as if he curse him , or endeavour to make him infamous . yea , those things against the heir , will be sufficient to take away the legacy . so much may serve for a summary of the roman law , in the matter of testaments . as for the succession of the intestat , it being one , without distinction of heretable and moveable rights , we have spoken thereof before , title succession . we shall therefore only touch on those points which are common , in all successions , by the roman law ; viz. of the inventary , collation of goods , and right of accrescence . . the inventary of heretage , was a repertory of every particular contained therein : and was contrary to the rules of the ancient roman law , l. si dotis nomine , . ff . soluto matrimonio ; by which there was neither a duty nor benefit to the heir by an inventary . but the use thereof was introduced by justinian in favour mainly of heirs , and in some cases of creditors , and legatars . of heirs , that they might not be lyable for the defunct's debts in solidum , but secundim vires inventarij , according to the value of the inheritance . and this much in favour of the creditors and legatars , that the inheritance might not be imbesled . and therefore the making of the inventary was appointed to be with great solemnity , before a judge , upon citation of the creditors , and legatars , so far as they were certain ; and publick proclamation for the rest : and before famous witnesses . and in place of the absent legatars and creditors , three persons were to be present , besides the witnesses , of good fame and means . the inventary behoved to be made within dayes , after the heir knew and could enter to the heretage ; and behoved to be compleat within . dayes after the beginning thereof . the inventary not being thus made , the heir was lyable to the creditors for their whole debts , and to the legatars for their legacies ; without deduction of his falcidia . neither could the testator dispense with , or prohibite the making of the inventary , in prejudice of the creditors : but he might in prejudice of the legatars , so as the falcidia would be due , in that case , though the inventary were not made . . collation is the obligation of the nearest heirs descending , to communicate what the defunct parent bestowed upon them , by donation , or tocher , unto the inheritance : that an equal proportion or division might be of the whole , amongst the co-heirs . the reason of this collation was , the equality of interest and affection of parents , to their children , of the same degree , and thence their presumed will , that these should enjoy equal benefite by their parents . and therefore if it appeared , not to have been the parents will , collation had no place . as if the thing were bestowed , with express exemption , ot prohibition of collation , or if it were left as a legacy , or donation , mortis causa : for thereby the parents purpose appeared , to prefer that child to the rest , even after the parents death . collation was competent amongst no other heirs , than descendents in the same degree ; and not amongst extraneous heirs , institute , or substitute ; or amongst ascendents , or collateral heirs : but only when the co-heirs were by testament , or from the intestat , who are in the same degree , as being all children , or all oyes , &c. but if children , or grand-children were institute or substitute together , there was no collation . amongst things bestowed upon children by their parents , their peculiar provisions and tochers were comprehended : but not their entertainment , or expense of their education . and therefore though one child were elder , or longer entertained than the rest , or though more sumptuously ; or though educated with more noble accomplishments , and at a greater rate , as being bred at schools , trades , exercises , &c. neither the instruments requisite for these as books , cloaths , or the like , came under collation , or was there any estimate or consideration thereof . the reason is , because entertainment and education is presumed to be according to the fitness and capacity of the persons , whereunto a proportion is observed in all societies and communions . and therefore the parents are presumed to have expended upon their children proportionally , according to the capacity and excellency of their spirits , and to render them fit to the services of their generation : which as they have a benefit , so have with them a large burthen , and oft-times hazard . neither do donations to children for any special service done to the parents , come under collarion : because these are not properly donations , but remunerations . . the right of accrescence , is that whereby the portion of an heir , legatar , or fideicommissar , befalleth to another : not by a new and several succession , but by the first succession , and as a part thereof . we have litle use of this : and therefore i shall be shorter , in the many and subtile debates , agitat amongst the doctors thereupon . for taking clearly up this right , we must take notice , that co-heirs by testament , or legatars , or 〈◊〉 , are either appoynted conjunct by the words of the testator , or by the matter : or conjunct as to the words , but 〈◊〉 as to the matter : or wholly several , both as to words and matter . as if the testator say , titius and mevius shall be my heirs : there the copulative conjunction joyns them in the same sentence , and they are joynt in the same inheritance , without expressing their distinct portions ; in which the law interprets them equally institute . the like is , if he leave a legacy , or fideicommissum , in the like terms . but where the proportion is express , equal , or unequal , thus ; let titius and maevius be my heirs equally ; or , let titius be heir in one half , and maevius and caius in another half : here caius and maevius are conjunct in words and matter ; but they are several from titius , both as to words and matter . or in the first case , titius and maevius are joyned in one sentence , but separat as to the matter : because their portions are severed and exprest . but if the testator say thus ; i leave titius my dwelling house , and say after , i leave maevius the same dwelling house , there is no conjunction of words : because to both severally the same thing is left . in all these cases there may be substitutions : we shall then set down the right of accrescence in the several cases thereof . first , in the institution or substitution of heirs directly , there is place for accrescence , whether the co-heirs be conjunct or disjunct . the reason is , because of that principle of the civil law , that no man can die partly testat and partly intestat , except in military testaments . and therefore if any of the co-heirs will not , or cannot enter ; the inheritance accresceth necessarly unto the other co-heir , with its own burthen , whatever it be . neither can the heir reject that portion , for the same reason : and if he enter before the other heir be excluded , he hath no remedy , and can neither reject the whole nor a part : because he might , and should have seen to the other's entry , with him , or else he enters on his peril . this takes no place in legacies , or 〈◊〉 ; because in these , the ground of law proceeds not . and therefore if any heretage be ordered to be restored to such persons , severally in distinct portions , if one of them will not , or cannot accept , that portion accresceth not to the other , but returns to the heir . and so in legacies , if there be a substitution to any of the heirs , the portion accresceth not : because there is place for the substitute , who becomes co-heir with the other institute . this accrescence is so necessary , that the testator cannot prohibite it , because he cannot die tested , pro parte . and therefore provisio hominis , non tollit provisionem legis , being as to the necessary requisits , essentials , and solemnities of law. secondly , in the institution or substitution of heirs , or in legacies , and 〈◊〉 , if there be more persons , and some of them joynt as to both matter and words ; the rights of those so conjunct do accresce , ( if any of the persons so 〈◊〉 , do not , or cannot accept , ) to the rest of the conjuncts : and not to those that are disjunct in the matter , though they be conjunct in the words . as if the testator say , let titius be my heir ; and thereafter say , let seius and mavius be my heirs : if seius or maevius cannot , or will not enter ; their portion accresceth to the other , and not to titius . and therefore this conjunction is called a tacit substitution , because the law presumes that the testator did not inconsideratly , or in vain , joyn seius and maevius in one sentence ; and put titius in another by himself : and so construeth that these two should be more conjunct , and their portions accresce to one another , and not to titius . thirdly , this proceedeth where the conjunction is only in words , if there be any disjunct both in matter and words : for then the conjunction makes the portions of the conjuncts to accresce each to other , and not to those who are wholly disjunct . as if the testator say , let titius be my heir in the half , and let seius and mevius be my heirs equallie in the other half : here seius and mevius are conjunct in words and not in the matter ; because their portions are severed , and yet their portions accresce to other , and not to titius , who is wholly disjunct ; and that from the presumed will of the defunct , as having consideratly put them in one sentence for that purpose . but this takes place only in institution and substitution of heirs , that the testator die not partly testat : but not in legacies and fidei commissis ; for in these the portion of the conjuncts only in words not being accepted , doth accresce to none , but returneth to the heir . fourthly , in al , cases where there is conjunction in the matter , and not in words , there is place to accrescence . as if the testator say , i leave my dwelling house to titius , i desire my heir to restore the same dwelling house to mevius ; the portion of either party not accepting , accresceth to the other , and returneth not to the heir . but if the testator say , i leave my house to titius , i leave the same house to seius and mevius , either indefinitly , or expressing their portions ; seius and mevius their portions accresce each to other , and not to titius : because if they and titius be conjoyned in matter only , yet they are also conjoyned in word ; and so the more conjunctions prevail , by the presumed will of the defunct . this kind of accrescence is called by the doctors , jus non decrescendi : because each party being provided to the whole , which cannot be effectual : therefore concursu partes faciunt , and the deed is made effectual to them in part equally ; if the will of the defunct appear by the provision , not to take away the former wholly , as in many cases it falleth out . and therefore in this accrescence , if any burthen be adjected , if that party accept not , his portion aceresceth to the other , without that burthen : because the other enjoys his own right , which was total , and becomes now effectual as to the whole : the impediment that retrenched it , being wholly taken off . but in all other conjunctions , the portion accresceth with its burthen . and therefore the accrescing portion , as being special , may be rejected in legacies , and fidei commissis : but it cannot be rejected in institutions or substitutions , lest the testator should be intestat in part . but in jure non decrescendi , when portions accresce , amongst those that are conjoyned in the matter only ; the accrescence is necessary , and the portion accrescing cannot be rejected : because it befalleth by one integral right , which either must be accepted wholly , or rejected wholly : and therein approbans non reprobat , no man can both approve , and disapprove , of the same individual thing . . the law and customs of scotland have reduced the matter of testaments , and succession in moveables , much nearer to natural equity , and made it much shorter and plainer than the roman law. for first , the civil law did lay the greatest weight , upon the free power of testing : which our law hath so far abridged , that all contracts , pactions , and provisions in relation to the heretage of persons living , are valide and ordinary , in contracts of marriage &c. and even pactum corvinum , in the worst sense , is valide : as when one , being provided by contract of marriage to be a bairn in the house , sells that portion in the lifetime of the contracter . which was sustained , . of julie . mr. james aikenhead , contra bothwel . so an obligement to leave a legacy , was found valide , and to stand as an irrevocable legacy : yet only to be taken out of the defunct's part of his free goods . . of januarie . houstoune contra houstoune . . secondly ; not only may the power of testing , be restricted by paction ; but is actually restricted by law , to extend to no immoveable or heretable right : which cannot be alienate , or affected upon death-bed , or , which is equiparat , by testament , though the testator were in his liege pousty , or perfect health . and that on good considerations : because persons are ordinarly and still presumed to be weak , when affected with sickness , and so not fit to alienat or affect things of their greatest concernment , as their lands , heretage , &c. and because it is the great interest of persons , to be free of all importunities when they come to their death-bed . at which time they are only capable of their deads part , which is seldom 〈◊〉 and so they cannot affect their lands , nor can they further dispose of their goods , upon the solicitation of church-men , which is very powerful in the popish church , where indulgences and prayers for the dead , to bring them out of purgatory , are believed , and cannot but be forcible upon dying men who then are more concerned for the safety of their souls , than preservation of their estates . and every where , the pressing desires of wives for themselves , or for such of their children as they most affect , or of children , relations , and friends , may have great impression upon the sick for preserving their peace and quiet . so there remains nothing testable , but moveable rights . what rights are moveable , and what heretable , see in the beginning of the title , rights real , which shall not be here repeted . thence it is , that there is a total separation of the succession in heritable rights , which are only competent to heirs ; and in moveable rights , as to which because they were intrusted to prelats , and their officials , as being presumed most careful of widows and orphans , and that the will of defuncts should be effectual , who did appoint or confirm persons to execute the defunct's will : the persons so appointed , or confirmed , were called executors , and the whole moveable rights of defuncts , whether tested on , or from the intested , are comprehended in executory . . the whole interest of executory with us , is in the office of the executor ; the division of the communion of goods , betwixt man and wife , ( whereby the relict hath her part ; ) the saccession of children , and nearest of kin ; or legacies . there is with us , properly , no institution or substitution of heirs . for albeit the nomination of executors , be in the defuncts power , in the first place ; and doth resemble the institution of heirs , and may receive substitutions , in the same way ; yet is it not properly a succession , but rather an offce , which therefore hath a part of the goods . executors are heirs in mobililus , and when heirs only are exprest , executors are comprehended , quoad mobilia . if there be nomination of executors , with a material legacy to another , it is a fideicommissiry succession , to be restored to the universal legatar . and executors dative have also a fideicommissary succession , which they must restore to the wife , and nearest of kin of the defunct . so must executors nominat , not being also universal legatars , and being strangers : retaining only a third of dead's part to themselves , for executing their office. the greatest power of defuncts , either by testament , or otherwayes , is the power of legating by particular or universal legacies . the interest of the wife is not so much a succession , as a division , of that communion of moveable rights , which the law stateth betwixt the husband and her stante matrimonio , and which is dissolved by the dissolution of the marriage : and so she taketh her share of the free goods by way of division . . the succession in moveables from the intestat , belongeth to the nearest of kin ; who are the defunct's whole agnats , male or female , being the kinsmen of the defunct's father's side , of the nearest degree , without primogeniture or right of representation : wherein those joyned to the defunct by both bloods , do exclude the agnats by one blood. . the line of succession in moveables , is first , the nearest descendents , male or female , in the same degree , equally ; whether sons or daughters , without right of representation . so that if the defunct , the time of his deceass had two daughters , though he had an oye by a son ; the daughters will exclude the oye , albeit the defunct had nothing but moveables . the next degree of the nearest of kin is , brothers and sisters german : and failing these , brothers or sisters by the father's side only , or their nearest descendents of the same degree , without right of representation . as to the third degree of succession in moveables , failing descendents , and brothers and sisters , and their descendents ; the question is , whether the father surviving , will exclude his own brother , or if there be any place for ascendents , in the succession of moveables ? such cases occur rarely : and i have not observed it debated , or decyded . it is but of late since the like case hath fallen in the succession of heirs , and heritable rights : wherein our custom hath according to the course of the law of nature , found the father to be heir to his son , and not the father-brother , or any of his descendents ; and in that have differed from the custom of england . and there is no reason why , if the question should occurr , that the like should not be done in moveables . the next degree is , the father's brethren and sisters german ; which failing , the father's brethren and sisters by the same grand-father , and their descendents , in the next degree . in all which both bloods exclude one blood. and if there be no agnat or kinsfolk found , who can instruct their propinquity of blood ; the goods become caduciary , and confiscat , and belong to the king , as ultimus haeres ; who , and his donatar , have the same interest , that the nearest of kin would have had . vide title , confiscation , section ultimus hares . children in familia , have not only the common right , as nearest of kin ; but have their legittime portion , called the bairns part : in which their father cannot by testament , legacy , or donation ' mortis causâ , prejudge them ; or by any other deed , on death-bed . by the premises it appears that the whole power of defuncts , as to succession in their moveables , is to nominate executors and give legacies . . the nomination of executors , is properly called a testament , additions thereto , or alterations thereof , are codicils . legacies may be left , whether there be testaments or not ; and either in the testament , codicils , or apart : but all is ambulatory during the defunct's life , and may be taken away expresly , or implicitely , by posterior or derogatory deeds ; unless the defunct be obliged by contract , inter vivos , not to alter the same . in which case contract and paction , doth so far over-rule the power of testing ; that posterior deeds whether expresly , or implicitely altering , would be ineffectual , like to that obligement , to leave a legacy , which was found an effectual legacy without further solemnity . january . . houstoun contra houstoun . . the effect of testaments being so small , the solemnities thereof are no other , than what are requisit to accomplish any other writ . for two witnesses suffice , and if the testament be holograph , it is valid . or if the testator cannot , or be not able through sickness , to write , a testament will be sufficient by a notar and two witnesses : notwithstanding the act of parliament . cap. . requiring to writs of importance , two notars and four witnesses ; which holds not in testaments , though containing matter of great importance . . of january . bog contra robert hepburn . yea ministers are authorized as notars , in the case of testaments . par. . cap. . the reason here of is ; because ministers are ordinarly with sick persons the time of their death . nuncupative testaments are not of force in scotland . for though legacies left within an hundred pounds , may be nuncupative , without writ ; yet the nomination will not so subsist , nor be respected by the commissaries . and therefore a verbal testament , taking away a formal legacy , subscrived but by initial letters ; was not sustained , though made at sea , and so in a case of necessity : and not admitted to be proven by witnesses in the ship. feb. . . houstoun contra houstoun . . the effect of testaments is not greater , though made in england , the testator residing there : and so extends not to an heretable sum due in scotland , left in legacy by the testator , being a scots-man . july . . melvil contra drummond . hope testaments , purves contra chisholm . executors of collonel henrison ibid. neither do nuncupative testaments of scots-men , though residing , animo remanendi , abroad , and dying there ; have any effect with us : albeit nuncupative testaments be valid according to the law and custom of that place . for albeit the custom of the place , may supply the solemnity of any writs , or evidents , for instructing a right ; as writs made abroad by nottaries , and tabellions , are valid , though not done according to the law of scotland , which requires two notars and four witnesses , in writs of importance : yet the custom of those places cannot constitute any right of succession , not allowed by the law of scotland . and therefore william schaw , factor and residenter in london , having lived and died there , in the house of one mary lewins , who had confirmed , in england , a nuncupative testament , whereby he had designed her as executrix and legatrix ; and the nearest of kin of the said william , having confirmed themselves executors to him , in scotland , and the competition being betwixt them : the lords preferred the executors confirmed in scotland , and had no respect to the nuncupative testament , as having no effect by the law of scotland . january . . schaw contra lewins . . the like solemnities will be sufficient for codicils and legacies . a nuncupative legacy within an hundred pounds , is probable by witnesses . november . . russel contra july . . wallace contra mure. where a greater legacy , left by word , restricted to an hundred pounds , was found so probable . . the power of testing is competent to all persons , who have the use of reason , though minors , having curators not consenting : wives cled with husbands , without their consent ; persons interdicted , without consent of the interdicters : but not to pupils , idiots , furious persons in their furiosity : neither to bastards , not having lawful issue , or testamenti factionem , by the kings gift ; as in the former case , wallace contra mure. vide tit. confiscation § . bastardry . . legacies are either particular or universal , general or special . universal legacies are when the whole moveables , in so far as is in the defunct's disposal , and not left by particular legacies , is legat . and so it is legalum per universitatem , and like to the succession of an heir . special legacies are , where some individual is left , as such a horse , cloaths , &c. or such a sum due by such a person : whereby the property is stated in the legatar , and at most , but the possession or custody in the executor . and therefore the legatar may pursue for delivery , or payment of the special legacy , against the havers or debitors : but he must call the executor , that his interest may be preserved ; least the debts exhaust even the special legacy . upon which consideration , the lords sustained not a pursuit upon a special legacy , leaving a sum due by such a person , in such a bond , pursued against the debitor ; the executor not being called . march . . forrester contra clerk and before , the pursuit against the debitor , at the legatar's instance , was simply repelled ; not being against the executor . february . . laird of balnamoon contra balcomie . yet process was sustained at the instance of the universal legatar , against the debitor , the executor being also called . here there was malversation betwixt the executor and debitors . but ordinarly , legatars have no immediat action , against the debitors of the defunct ; but only against his executor , hope , legacy , ballantine contra mr. john eliot . legacies may be left , not only in testaments , or codicils ; but where there is none : or where there is in contract ; , letters , or tickets apart ; though the legacies were not in the confirmation . december . . executors of sir william scot contra arthur rae . . legacies , and donations in contemplation of death , or done on death bed , albeit as inter vivos ; yet being of moveables , as bonds , assignations , or gifts of money , or goods on death-bed : have the like effect , and are only effectual , as to the defuncts free goods at his disposal , which is called the dead's part . and if the whole legacies , exceed dead 's part of the free geere ; regularly they are abated proportionally . wherein there is no preference , nor priviledge granted to legacies left ad pias causas : as for building of a kirk , delivered by the defunct long ere he dyed ; which suffered proportionable defalcation with the ordinary legacies , july . . doctor monro contra executors of william scot. but if the defunct express his will , to leave a legacy without defalcation ; it will not be defalked with the other legacies . . whether a special legacy , without such express will of the defunct , will be abated proportionally with other legacies ; i have not observed oft decyded . but i conceive it will not bear proportional deduction : because though not the express , yet the tacit and presumed will of the defunct seems to be so . else why should he leave that legacy more specially , than the rest ? which is more clear in things left in legacy ; as when a horse , sword , cloaths &c. are left ; and the other legacies are not special : there seems no reason , upon failing of the other legacies , to burthen the special legacies ; abated they cannot be , directly , not being quantities but bodies . the same reason is in sums specially legat : for though it may appear that the defunct's reason may be , to leave such a special debt , to such a legatar , not as a 〈◊〉 , but because that debitor is less solvendo ; yet with that hazard , the other advantage is consequent ; that as he will get no benefit with the other legatars , solie should bear no abatement with them . it was so decyded july . . spreul contra murray . . quaeritur , whether , as in the civil law , so with us , if the testator leave a special legacy , of that which he knows is not his own ; it will be valid quoad valorem ? it was found , that a special legacy left of an heritable bond , which fell not in executory , was valid , to affect the dead's part of moveables , pro tanto . of januarie . drummond contra drummond . a legacy by a wife , ordaining an executor to discharge a bond to the legatar , was found valid , and to be made up by the wife's executors ; albeit the half of the bond belonged to the husband jure mariti : as being legatum rei aliena scienter legatae ; and the wife was presumed to know that common principle in law , and not to be ignorant thereof . . of june . murray contra executors of rutherfoord . it was also so decided , of a bond left in legacy , which bond had been assigned by the defunct to another , shortly before his death , whereof he was presumed not to be ignorant . . june . alexander falconer contra mr. john dowgal the like was found of a legacy , left by a defunct , out of a sum he had upon such lands ; which sum he could not but know was heretable , and could not be legat : wherethe executor , ( who was also heir , ) was decemed to make good the legacy . . of december . robert cranstoun contra brown. yet a legacy being special , bearing such a bond to be confirmed , and communicat to the legatar ; was not found due , or to be made up : in respect that after the legacy , the defunct made that bond heretable , by a superveening security , which did import the revocation of the legacy . july . . grizel edmondstoun contra margaret primrose . but where the testator gives a special legacy , of that which he supposeth to be his own ; he giveth it , but as he hath it , without any warrandice , being meerly gratuitous : and the executor is not obliged to make it good . as if he legat a sum , which he supposeth moveable , and yet is truely heretable . february . . anna wardlaw contra frazer of kilmundie . . legacies are sometimes left together , in one writ , and sometimes by posterior writs , which do not derogat to the prior legacies ; but all come in together . if they exceed the defunct's part , they suffer all , proportional abatement , except such as are special legacies . for if one thing , or sum be specially legat to one person , and by a posterior writ , be legat to another ; the posterior legacy takes place , and is a revocation of the former ; and they do not come in together , concursu partes facere ; as they would do , if left in one writ , by the roman law ; and each legatar would have but a half. but we have no such custom , or style , to legat the same thing intirely , to different persons , in the same writ . and if that should happen , it is like , that the posterior legacy , though in the same writ , would exclude the prior ; as an alteration of the testator's mind , while his testament was a framing : for it is ordinary in the same writ , to alter prior clauses , by posterior . there is also this exception , of the consistency of legacies , left at diverse times , that the assignations , as inter vivos , on death-bed , have only the effect of legacies . yet posterior assignations , though not special , but generally , out of so much of the defunct's means , are preferable to prior general assignations . july . . trails contra gordoun . and bonds of provision to children , on death-bed , though they have but the effect of legacies ; yet they do not come in with prior legacies , to suffer a proportional abatement , but are preferred thereto . december . . katharin mitchel contra litlejohn . and a defunct having , on death-bed , given assignation to one of his children , to some of his bonds , and thereafter by his testament , nominat that child , and an other his executors , and universal legatars ; the universal legacy , was not found to take away the prior assignation : though the same was not delivered , nor did contain a claūse , dispensing with delivery ; but that child had both the assignation , and the half of the remainder of dead's part . january . . aikman contra successors of david boyd . a legacy by a husband to his wife , was found not to be understood , to be in satisfaction of her third , but to be wholly out of the defunct's third . january . . trotter lady craigleith contra rochead lady prestoungrange . and a legacy left , for building a bridge , being a definite sum ; the executor having builded the bridge , with less expense , the superplus was applyed , to build another bridge in the same shire . june . . commissaries of berwick shire contra john craw. . legacies , donations in contemplation of death , or deeds on death-bed , may affect the defunct's whole free moveables , debts being deduced ; except only as to the relict's , part , and bairns part : which were found not to be prejudged by an assignation to a moveable sum , made by the defunct on death-bed . july . . cant contra edgar . the reason of this limitation on legacies , will easily appear , when the nature of the relict's part , and bairns part shall be considered . the relict's part of her husban'd executory , or moveables , hath its rise from that communion of goods , betwixt man and wife stante matrimonio , of which , title conjugal obligations , § . . the communion of goods , betwixt husband and wife , is competent ipso jure , without contract , as a part of that individual society , wherein marriage consists . and therefore by the dissolution of the marriage , the communion is dissolved . so that if the husband die first , the wife hath her share of his executory : and if the wife die first , her executors , legatars , and nearest of kin , have a share of the free moveables , the husband hath , the time of her death . in which children of that wife though of other marriages , will have part of her share , with the children procreat betwixt the present husband , and the wife , both being in a like propinquity to her . . the bairns part is their legittima , or portion natural : so called , because it flows from that natural obligation of parents , to provide for their children . which is not extended , to restrain the parent to dispose of any part of his means ; but only so , as to leave a portion thereof to his children : which because the law orders , and determins ; it is called the legittime . the bairns part is only competent as to the father's means , and is not extended to the mother , or grandfather : nor is extended to any , but lawful children . neither is it extended to all lawful children , but only to those who are not for is familiat . and it carries a third of the defunct's free moveables , debts being deduced , if his wife furvived ; and a half if there was no relict . . but here the question ariseth , what is for is familiation , whether being actually out of the family be sufficient ; as if the child exercise a trade a part , or be married , without the father's consent ; at least without a portion or tocher from the father ? or whether it be sufficient that the child be forisfamiliat , and provided by the father , albeit the said provision be not accepted expresly in satisfaction of the portion natural , and bairns part ? or whether none be accompted forisfamiliat , to exclude them from the bairns part ; unless they discharge the same , or accept a provision in satisfaction thereof ? there be probable reasons for all the three parts : but the main doubt , is upon the last two , whether provision be sufficient , as being presumed , to be given and accepted , in satisfaction of the portion natural . so much the rather that in contracts of marriage , fathers of times use to adject a clause , that the child contracted shall be a bairn in the house : which would be superfluous , if the child would be a bairn of the house , unless the bairns part were expresly discharged . and therefore tochers , and provisions being neither expresly in satisfaction of the bairns part , nor yet with provision , that that child shall be a bairn in the house ; must be holden to be given , and accepted , in satisfaction of the portion natural . which is confirmed by a decision observed by dury . february . . janet eleis having pursued the executors , af umquhil patrick eleis her father , for her share , with the rest of the four bairns , in the said patrick's house ; and that by a clause , in her contract of marriage with john smith , afterwards provest of edinburgh , providing her to be portioner , of her fathers free geer , with the rest of his bairns , provided the rest were forisfamiliat , and provided likeways by their father . in which case , the said janet was found to have her share , albeit two of the bairns were not married , but only provided . whereby it appears , that the lords accounted provision as forisfamiliation . yet the contrary opinion is more probable , viz. that nothing can take away the bairns legittime , unless it be discharged . and that a presumption , of accepting a tocher , or portion , in satisfaction , will not be sufficient , unless it bear in satisfaction of the portion natural and bairns part . . because the legittime is so strongly founded , in the law of nature , and positive law , that presumption or conjecture cannot take it off . . this is more suitable to the civil law , which we follow in this case , whereby the difference betwixt children , being emancipat , or forisfamiliat , or sui under the paternal power , and in the family is taken off as to the succession and legittime . and therefore there is introduced collatio bonorum , whereby all that the emancipat or forisfamiliat received from their father , must fall in under the accompt . so their tochers , gifts , provisions &c. are imputed in a part of the legittime ; but are never presumed to be the whole , unless it were exprest . . collatio bonorum is ordinary with us , by which the tocher of the married children comes in the accompt of the bairns part : which could not take place , if those tochers were presumed to be in satisfaction of the bairns part , unless the clause to be a bairn in the house , were expresly added . which was so found . february . . janet ross contra marion kellie . where the pursuer being married , and tochered ; was not excluded from the bairns part , there being no other bairns in the family . yet there was a wife in the family , and so the executory was tripartite . neither was the pursuer made to bring in her portion , collatione bonorum . but here the contract bare , that the tocher was in satisfaction of that daughter 's right to her mother's third , who was her father's first wife . if then it be urged , that the clause , to be a bairn in the house , signifies nothing : it is answered , that the clause may be propter majorem evidentam & securitatem . but also as to the clearing of this question , whether that clause hath not this effect , that that child should not only come in , to have a share of the portion natural , with the bairns of the family ; as if that clause had not been adjected , but the child had come in , only provisione legis . in which case , the child forisfomiliat behoved to have brought in the tocher , or portion , collatione bonorum : but when the child comes in also provisione hominis , the effect is , that it be without collation . which is so much the more evident , that oftimes children are provided to be bairns of the house , after the rest are likewise provided . so that when that condition is not adjected , the meaning is , that without consideration of the tocher , or former provision , the children by that clause should have equal share . it was so found spots . test. elizabeth carsen contra agnes and marion carsens . . collation then hath only place amongst children , where it is not prohibite , expresly , or implicitely , by the father , providing that child to be a bairn in the house . but collation hath no place as to the wife : because tochers in such provisions , being as inter vivos , of its own nature , it is no part of the executory ; but is done by the husband in 〈◊〉 potestate , who is dominus omnium bonorum , at least hath plenam administrationem , notwithstanding the communion of goods in the wife : but collatio is only a remedy introduced in law , to keep equality amongst children , who have an equal interest in their father and his moveables : but it is not introduced , to keep an equality betwixt the wife , and them . neither doth it design an equality in all things , but in provisions , or tochers , in money ; which must be accompted to those who got the same . but land disponed to a second son for love and favour , not bearing for his portion or in satisfaction thereof , was not found to exclude him from his share of the bairns part , with his sister : nor to require him to collate what he got in land. january . . duke and dutches of balcleugh contra earl of tweedale . hence ariseth another branch of the former question , whether if all the children be forisfamiliat and provided ; but have not discharged their portion natural , or bairns part , or accepted the provision in satisfaction thereof : if in that case they will have access to a portion natural , in prejudice of the relict and legatars ? i say , if they be all provided , because if some be in the family unmarried and unprovided , the relict and legatars will be no more prejudged , if all the bairns come in , or only some of them , because many , or few , they will have all the bairns part and no more . the former case , ross contra kelly , seems to bring in the children , though all forisfamiliat , to a legittime with the relict : because there was but one child , and she married , and tochered . only it is observed , that her provision was in satisfaction of her mother's part : so that albeit she was married , yet it appears that she was not provided , ex bonis paternis , but only ex bonis maternis . and therefore it remains yet unclear : and there seems much reason that the wifes interest being a division of her communion of goods , she should not devide with them who are out of the family and provided , unless they had a provision to be bairns in the family . by the common practick also , commissaries divide executory in two , where there is a wife , and the whole children married , and so presumed to be provided . it was so found where there was but one child married and provided , though not exprest in satisfaction . but the child was admitted to a third , offering to confer . february . . dumhar of hemprigs contra frazer and where a defunct had only two daughters , besides his heir , the one in her contract of marriage , getting a tocher in full satisfaction of her portion natural and bairns part ; and the other in her contract , being provided to be a bairn in the house , was found to have the whole right to the bairns part , and to the deads part , and office of executory , excluding the other : who was found to succeed to no part , as being renounced in favour of her father , and returning back from him by his succession ; but that it accresced to the other , though she was not executrix nominat , but dative . and therefore the confirmation of her , sole executrix , was sustained . january . . agnes sandielands contra rachel sandielands . there is an other considerable difference , betwixt the condition of the wife and children , introduced by the act of parliament . revived par. . cap. . whereby bonds and provisions bearing clause of annualrent , which before were heritable , and so fell not within executory ; now are moveable , as to the bairns , nearest of kin , executors , and legatars , only excluding the relict : and are disposeable by legacy , or nomination , and at the defunct's disposal , by testament , or any deed on death-bed . and they are exhaustible by debts of the same nature , which debts of that nature , do not exhaust the relicts part : which is inferred by a necessary consequence from the foresaid act of parliament . for seing thereby wives have no share of their husband's bonds bearing annualrent ; as they have not the benefit , so they ought not to be burthened with such bonds : unless the husband or wife die before the term of payment of the annualrent ; or that the bonds become moveable , simpliciter , by a charge , or pursuit for payment thereof , whereby the creditor's mind is presumed to make the sum simply moveable . in which case , the wife hath both the benefit and burthen of such bonds in her share , july . . elizabeth scrymgeour contra murrays . yet the wife hath her share of the annualrent of all bonds , though heritable , due before dissolution of the marriage : but no share of the said annualrents after , nor of the stock . june . . inter eosdem . in this case , a bond being payable to the husband and wife , the longest liver of them two , but bearing no annualrent ; the relict was found to have her option either to lift the whole , and re-imploy it , for her liferent use ; or to have the half of the stock , seing it bare no annualrent : but not to have both the annualrent of the whold , and the half of the stock . but bonds which exclude executors , are heritable quoad creditorem : but moveable quoad debitorem . because the creditor excludes his executor : whereas the debitor's executor is not excluded , but lyable . but bonds bearing clause of infeftment are simply heritable , both as to the debitor , and creditor : for by these , the mind of the creditor appears , to exclude all others but his heir , except as to the bygone annualrents . . heirs are excluded from the bairns part , though in the family ; because of their provision by the heritage : except two cases . first , if the heir renounce the heritage , in favour of the remanent bairns : for then the heir is not to be in worse case than they ; but they come in pari passu , both in heritable and moveable rights , which is a kind of collatio bonorum : which will hold when there is no bonds but heritable bonds . . secondly , if there be but one child in familia , and so both heir and executor ; that child hath not only the heritage , but the whole bairns part , and so abates the relict's part , and dead's part . nic. division of testaments , kennedy contra his father's relict . the like without collation of the heritage . january . . catharine trotter lady craigleith contra rochead lady prestoungrange . . in the division of executory , respect is had to the time of the defunct's death , as to the relict and children , though before confirmation , or any one's owning of the succession . for then if there be a wise surviving , and children , the exeentory is tripartite , whether the bairns be of the same marriage , or some other marriage . as was found in the former case . june . . chapman contra gibson . in which case , there was but one bairn , who if the father had been dead , would have been heir . the like . july . . henrieson contra sanders . so the wife and children surviving , transmit their parts to their nearest of kin ipso jure . and legatars have right to , and do transmit legacies , to their executors , though they have not insisted or recovered them in their own life : unless the legatar die before the testator , ( for then the legacy is not due , ) or that the legacy be conditional , and the legatar die before the condition be purified . and if any of the children , who survive the defunct , die before confirmation , they transmit . . yea the nearest of kin , surviving , transmit their right by the act of parliament . cap. . whereby it is clear that the nearest of kin have a proper right , and not solly by the office of executory . but it is more clear by the act of parliament . cap. . which maketh jus agnationis , to the nearest of kin , due by the executors , though the nearest of kin be not confirmed executors , and so have interest only by the office. and so it was found amongst the executors of umquhil patrick bell in glasgow , whose three sisters having confirmed his testament , one of them was found to transmit her share to her children , though she died before execution . for the son of that sister was found to have his share , albeit the office of executory accresced to the two sisters surviving , and with the office , the third of dead's part . feb. . . the like was found since betwixt dame agnes maxwel and the earl of wintoun . and after full debate , it hath been determined , that the jnterest of the nearest of kin , is only extended to those who are existent nearest of kin the time of the confirmation of the defunct's testament , which is aditio haereditatis mobilium . and the executor is haeres fideicommissarius , who must restore to the relicts and bairns , their part of the free geer , debts deduced ; and to the nearest of kin , whether bairns or any other , in proximo gradu , the time of confirmation , the deads part , the legacies deduced : reserving to the executors nominat , if they have no proper interest , a third of the dead's part , unexhausted by legacies . so that the executor adit haereditatem , not for himself only , but for all parties having interest . which is suitable to the entry of heirs in heritable rights : and whereby jus sanguinis , of the nearest of kin , is not prejudged ; seing immediatly after the defunct's death , edicts may be served , and the nearest of kin will be confirmed executor , if a nomination be not produced . and though any of the nearest of kin , should die before a confirmation can be expede ; it is an extraordinary contingencie , which law regardeth not . and the act of parliament . which establisheth the right of the nearest of kin , by making executors comptable to them , presupposeth a confirmation , before the interest of the nearest of kin be established . but though the executor die , before the testament be execute , there must be an executor ad non executa , who will be comptable to those , who were nearest of kin , the time of the first confirmation . and if any of them die , before they attain their share ; their bairns or nearest of kin will have no right , till they confirm the testament of the nearest of kin deceassed , and give up an inventary , of what will be due to the defunct's nearest of kin , by the executors of the prior defunct . neither will the share of any bairn , or nearest of kin , deceassing without children , belong to the surviver jure accrescendi : who will not represent them passivè , and be lyable to the debts . and therefore must be confirmed as executors to them : and thereby have both an active and passive title . all which was found . feb. . . duke and dutchess of balcleugh contra earl of tweeddale . . by the premisses it is evident how executory is to be divided , what dead 's part is , and how it may be affected with legacies , or deeds of the defunct in testament , or on death-bed . for first , all persons who have no wife , or children unforisfamiliat , without husband , ( and wives , though they have children ) have the whole disposal of the executory : and may leave legacies , and donations of their moveable estates , and do other deeds on death-bed , equivalent to their free goods : so that dead's part is the whole . but if the defunct had a wife , and children unforisfamiliat , then the executory is tripartite : and dead's part is a third , the wife's part is a third , and the bairns part a third . but if the defunct have a wife and no children unforisfamiliat , the executory is bipartite : the dead's part is a half , and the wife's part another half. or if he have children unforisfamiliat , and no wife , the executory is also bipartite : and in either case , his legacies , or deeds on death-bed , may be equivalent to the half of his free geer . and if the commissaries by error or mistake make the division otherwayes , none are prejudged thereby , who are not called , and compearing : but may summarly , without reduction of the confirmation , be admitted to claim their share . which was so found . feb. . . janet ross contra marion kello . children have a threefold interest in their father's executory . first , their bairns part , wherein their father cannot prejudge them . secondly , their interest in dead's part , whereby they have title to the office of executory , if the defunct nominat none . or thirdly , if he die , they have all that is free of dead's part , not exhausted by legacy , or by the executor's allowance , for his administration ; which is the third of the dead's part . and that , when he nominats executors : unless they be also universal legatars ; or though the children appear not , to claim their office , when executors dative are confirmed by the commissaries . . this interest is common to all other nearest of kin. this is clear by the act of parliament . cap. . as to executors nominat , that the nearest of kin may pursue them , for the free geer ; even for dead's part , except a third to the executors for their administration . so that if they have any legacy , it is imputed as a part of the third , and the executor nominat , hath not both , separatim : and he hath but the third of dead's part , debts and legacies being deduced . so that if there be an universal legacy to another , the executor nominat hath nothing . november . . forsyth contra forsyth . july . . wilson contra tinto . where the reason is rendered , because before the act of parliament . defuncts might exhaust all their dead's part by legacies : and that act was not to better executors , but to restrict them . the like january . . pattoun contra leishman . the like spots . executors of moncrief contra moncrief . and seing the said act bears , strangers being nominat , shall have but a third of the dead's part ; therefore the wife will have no more but her third . or if one of the children should be nominat , or the nearest of kin : for none of these are strangers , and so have nothing for their administration , but their expenses . november . . john ker contra jean ker. but concerning executors dative , this statute gives them no share of dead's part . . the order of confirmation is , that the commissaries having emitted edicts , affixed on the church-door , where the defunct died , calling all persons having interest , to confirm ; then , according as parties compear , and compete , they prefer the greatest interest . first , the executor nominat , then the nearest of kin. thirdly , the relict , legatars , and creditors : and all failing , the procurator fiscal , or such who are surrogat by him ; who enjoyed the whole dead's part , till their right were reduced , on a better title . but since , not only the wife and bairns , who may call all executors to accompt , for their parts , but also the nearest of kin , have been admitted , to call the ordinary executors dative to an accompt , without reduction . but before the said statute , all executors had the whole profit of dead's part , as the narrative of it bears . and yet of old , it appears the executors had litle benefit , if there was any debt , heritable , or moveable : for they only were lyable for a year : and thereafter to find caution to relieve the heretor , par. . cap. . but these executors dative have not a third of dead's part , for their administration , though they be strangers : for the statute gives that only to executors nominat , being strangers . but the fiscal , by the trust committed to bishops to have a care of defunct's executory , and the quota , which is the twentieth penny of free geer , should execute the executory , where none are nominat by the defunct . and therefore , executors dative are his assigneys , surrogat in place of the fiscal . november . . john ker contra jean ker. this interest of children , as nearest of kin , is never taken away ; unlese they renunce or discharge , not only the bairns part , or portion natural , but all that they may succeed to , by their father's death . to come now to the office of executory , and what power executors have activè , and how far they are lyable passive ; we must distinguish executors . they are either nominat , or dative , constitute by the commissaries : and these are preferred according to their several interests in the executory . and these who are creditors of the defunct , preferred hoc nomine , are called executors creditors . executors are also principal , or ad ommissa , & malè appretiata ; or ad non executa . and all these may be either sole executors or co-executors . all executors are obliged , to give up inventary upon oath , bearing that they have omitted nothing known to them , nor have misapretiat the same ; and must find caution , to make the executory foorthcoming , to all parties having interest . they use also to protest , that what further comes to their knowledge , they may 〈◊〉 or add to the inventary : which they may still do , before another do diligence , to confirm a dative ad omissa , & malè appretiata ; or before they be pursued for super-intromission . . an executor nominat in england , was admitted to pursue in scotland , upon a confirmation there , without inventary : in respect of the custom there , not to make inventary . feb. . . lawson contra bartholemew kello . but in that case , an executor dative , confirmed in scotland , having found caution , was preferred to the executor nominat and confirmed in england . spots . executors , inter eosdem . an executor being decerned , though not confirmed , may pursue not only the defunct's wife and bairns , to give up inventary ; but also strangers . novemb. . . heriot contra heriot . but till he be confirmed , or have licence , he cannot pursue for payment . decemb. . . cathcart contra cuninghame . . executors intending to confirm , use to get a licence to pursue : which ordinarly bears , excludendo sententiam . which was sustained , though general , to pursue for all the defunct's debts , naming none . hope , executors , farquhar contra law. but the obtainer must be first decerned executor : for till an edict be served , and an executor confirmed , there can be no title given to pursue . yet before confirmation , the licence may be granted . if the decreet be extracted , on such licence , before confirmation , the decreet is null . hope , executors , john aitkin contra richardson . nicol. de acquirenda & amittenda hereditate , janet tweedie contra magdalen lawson . licences use not to be granted , after the principal confirmation : and therefore was not sustained as a title . december . . haliday contra yet it was sustained , for pursuing a debt particularly exprest therein , being dubii juris . january . . carnousie contra the like where the licence was granted to a creditor surrogat as executor creditor , ad omissa . june . . stevenson contra crawford . feb. . . scot of clerkingtoun contra lady clerkingtoun . executors confirmed , have right to call for , and uplift all the defunct's moveables confirmed . the executors of a donatar ofa liferent escheat , was found to have right to the bygones of that liferent , before the donatar's death : and his heir to the profits of the liferent , after the donatar's death , albeit there was no declarator in his life . january . . keiry contra nicolson . but sums secured by a condition in a reversion , that no redemption should be till these sums were payed , ( where the disposition was not granted for these sums , as the cause thereof , ) though they affect the ground disponed , yet remain a moveable right , befalling to executors . feb. . . thomas wauch contra doctor jameson . . it useth to be controverted , betwixt the heir and executor , about the rents of lands , and others , which run according to the legal terms . so if the heretor , or liferenter , survive whitsunday and martinmasse ; their executors have that whole year , albeit it be victual payable at candlemasse . because the last legal term is martinmasse . and it was so decided , even in the case of a miln . feb. . . laird of westnisbet contra laird of swintoun . the like was found , albeit the entry of the tenent was at whitsunday and the conventional terms of payment of the miln rent , were , the first half at candlemasse , and the second at whitsunday ; that liferenter surviving martinmasse , being the last legal term , had the rent of the miln , both payable at candlemasse and whitsunday , after that martinmasse . july . . guthry contra mackerstoun . but if they live only till whitsunday , then their executors have the half of the rent , victual , or mony : if they live till the term-day , though they die that day , their executors have that term wherein they died . it was so found , that the defunct dying on martinmasse-day , at eleven hours , his executors had that whole years rent . hope , executors , tenents of merchistoun contra napeir . the like , where the defunct died on marlinmasse-day in the afternoon , the executor got that whole year . . of february . lady bruntoun relict of the bishop of galloway contra his executors . . executors have also right to steelbow goods , without prejudice to the tenent's tack thereof , to continue till it were expired . decemb. . . countess of westmorland contra countess of hume . january . . patrick dundass contra george brown. june . mackanlay contra laird of ardincaple . as to other particulars , it will appear what rights are moveable , title real rights . . co executors cannot pursue , unless the rest be concurring , or called . march . . contra lag . yet if any of the executors confirmed will not concur , and contribute equal pains and expense ; the pursuit will be sustained without him : and he may be excluded by a process before the commissaries on that ground . june . . young contra murray . but when co-executors have ohtained sentence , and so execute the testament , every one may pursue for their shares , severally , without concourse or calling the rest . january . . william menzies contra laird of drum. one executor cannot discharge a debt , wholly : seing the other executors have equal share in all . march . . semple contra mackie and dobbie . yet this debitor alledging , that the executors pursuing , had received their full share ; it was sustained . march . . inter eosdem . an executor's discharge was sustained , though the executor dyed before the testament was registrat , he having confirmed , made faith , and found caution . hope , executors , elizabeth lawson contra lady humby . amongst co-executors the office accresceth to the survivers , who are in the same case as if the defunct executor had not been named . only in so far as the testament was execute before that executor's death , his share is transmitted to his executors , and accresceth not : but is transmitted cum onere debitorum defuncti pro rata . and it seems the defunct executors , being strangers , should have only a share of a third of dead's part , so far as execute in their life : seing that benefit followeth the office , and should be proportionable to the effect , and charge thereof . . assignations granted by executors , have only the effect of procuratories , and ceass by the death of the debitor : unless they have attained effect by sentence , or satisfaction , whereby alone the testament can be execute . and if all the executors die before the testament be execute , in so far as it is not execute , the goods remain in bonis 〈◊〉 : and the assigny cannot pursue , but there must be an executor ad non executa . but if the testament was execute by the executor , by obtaining decreet for the sum assigned ; the assignation is effectual , after the executor's death : or if the assigny obtain sentence or satisfaction in the executor's life . for in either of these cases , the testament is execute as to that part . . if all the executors be dead , and any part of the testament unexecute ; then there is place for executors ad non executa . a testament is execute when the debt is established in the person of the executor active , and the debitor passivè ; either by new security , or by decreet : or otherways , when it is discharged , or assigned to a party interessed in the executory . but litiscontestation doth not execute the testament . feb. . . duke of lennox contra alexander weyms . but the execution of the testament , doth not establish the full property of the goods in the executor , leaving only an action against him , to the defunct's creditors : but he continues as administrator . and therefore in competition betwixt the creditors of the defunct , and the proper creditors of the executor affecting the sums or goods which were the defunct's , by arrestment ; the defunct's creditors , without respect of diligence , are always preferred to the executor's proper creditors . july . . william veatch contra lord lee. december . . kelhead contra lrving and borthwick . december . . crediiors of james mastertoun and eleis thin . neither doth the executors delinquency or rebellion confiscat further than their own interest in the executory , but not the interest of creditors , legatars , wife , or bairns : albeit the executor have execute the testament by decreets . december . . mr. arthur gordoun contra laird of drum. but it may appear , that seing now the nearest of kin surviving , transmit their part of the executory to their executors , though they die testamento non executo ; there should be no need of executors ad non executa : but the executors of the wife , bairns , and other nearest of kin , might confirm the same in their testament , and not in the first defunct's testament ; not being in bonis primi defuncti , but secundi , being transmitted to his successors . but this is not consequent , or consonant to our custom . and therefore , to clear this difficulty , advert , that though the right to the goods , be in the nearest of kin surviving ; yet the administration and possession is in the executor . and therefore , the goods are still said to be in bonis defuncti , till they be established in another's person , active , by execution . so that their goods remain in bonis primi defuncti , though all his executors die , as well as one , and are not in bonis of the nearest of kin , who have but an obligation on the executor , or jus ad rem , whereby the goods are still said to be in bonis defuncti . so that all the executors of the defunct dying , there should be a confirmation ad non executa : yet if the nearest of kin die , there may be another confirmation of his executots to establish the right of the nearest of kin in their person ; to the effect his executors may pursue the first defunct's executor ad non executa . in the same way as if the first executor had been alive , and the nearest of kin had died before execution ; the executors of the nearest of kin , behoved to confirm his right , and thereupon representing the nearest of kin , pursue the executor of the first defunct , as the nearest of kin himself could have done . if it be objected , that there is no representation in mobilibus : the answer is , that this is to be understood at the time of the defunct's death ; whereby those only who survive , have right per capita , and not the descendents of those who died before the defunct . but if all survive , the right is in all , and transmitted , not by right of representation , but as jus quaesitum , to their immediat predecessors . and though the office will belong only to those , who are alive the time of the confirmation , in the nearest degree to the defunct ; yet the nearest of kin to those who survived the defunct , and died before confirmation , will get the share of their surviving parent , as to the bairns part or relicts part : because these are not properly succession . but as to the deads part , which befalleth to the nearest of kin jure agnationis , it is conveyed by a proper succession to the nearest of kin : wherein children unforisfamiliat , succeed as nearest of kin , and so are lyable to the legacies , and deeds of the defunct on death-bed , as to the deads part ; but not as to their bairns part . and therefore bairns surviving their father , though they die before confirmation , they transmit their bairns part , but not deads part , unless they also survive the confirmation ; that being aditio haereditatis in mobilibus . . executors ad omissa , & malè appretiata , ought to call the principal executor to their confirmation : else their confirmations are null . february . . bain contra march . . duff contra alves . but this holds not in executors creditors ad omissa . june . . white contra these having a more favourable interest , for satisfying their own debt . it may be questioned here , whether those things can be called malè appretiata , which are pretiat by the defunct himself ? doubtless modica differentia is not to be regarded : but if the price be considerably to the lesion of creditors , legatars , or others , as being a half , or third within the just price , they may be repretiat . feb. . . belshes contra otherways it stands : though both the quantity and price were known to be greater , the difference not being exorbitant . feb. . . agnes nimmo contra william martin . and executors are comptable , according to the ordinary prices : seing id non agebatur by the price , to gift to the executor ; unless it had been exprest that the price should not be questioned . and then it is as a legacy to the executor , and to be imputed in part of the benefit of his office : and prejudges none , but legatars . for the defunct can do no deed on death-bed , or in testament , further than extends to the dead's part . an executor ad omissa pursuing the principal executrix , who deponed that she had confirmed her husband's corns , by an estimat thereof , in the barn-yard , by skilled men ; but that it had arisen some bolls higher : and that she had confirmed a part of a sum , contained in a bond granted to her husbands , because she knew the rest was payed : she was found lyable , not according to the estimat , but according to the quantitie the corns arose to ; and for the whole sum contained in the bond : unless she produced the bond , that the executor ad omissa might proceed thereon for the rest ; or otherways , that she proved that part she omitted , was payed by the debitor : and that her oath of knowledge could neither exoner the debitor , nor her self . november . . alexander bruce contra anna douglas . and an executor was made to depone , upon the goods , quantities and prices , in the inventary , at the instance of an executor ad omissa , notwithstanding the principal executor's oath at the confirmation . july . . jean ker contra john kiv. . executors creditors must instruct their debt before the commissaries . and therefore if they have no writ to instruct it , they may pursue the nearest of kin cognitionis causâ . and having obtained decreet , it will instruct their interest , to get confirmation as executors creditors : which being done they need not instruct their debt to the defunct's debitors , or others , but the confirmation is sufficient ; the debt being but the ground , on which the commissaries preferred them to be executors dalive . spots . testament , james reid contra james lochier . so that no objection against their title or debt , or that they are satisfied by the executory or otherwise , will exclude them : as that the debt was a bond on death-bed , though proponed by other executors creditors , confirming within some dayes after . feb. . . creditors of adam marshal contra byres . and therefore , they may confirm , and uplift much more than the debt due to them : but are lyable for the superplus . but their confirmation prejudgeth not other creditors , who used diligence before the confirmation . . so much for the office , power , and interest of executors activè . let us now consider their duty and burthen passivè . and that is , first , all executors are lyable for diligence in executing the testament , but not all equally : for those who have a profitable office , are lyable for more diligence , than these who have not ; as executors nominat , where dead 's part is not exhausted with legacies , are most obliged for exact diligence . but if there be an universal legatar , whereby the executor hath no benefit , the executor is only lyable quoad dolum & latam culpam , and for supine negligence ; but not to use horning and poinding , but to assign when ever the legatar insisteth . june . . nivine contra hogs . the like as to a special legacie , whereof the executor had no benefit , and the legatar might have pursued for it himself . december . . port contra morison . the ordinary diligence required of executors , is sentence and registrat horning against the defunct's debitors : but how soon this must be dispatched , is according to the difficulty and length of the process , quod est in arbitrio judicis . executors are lyable in the first place , to the defunct's creditors , secundûm vires inventarii , and no further . and that not only to the creditors , to whom moveable debts are due : but also to the creditors in heritable debts or obligements prestable by the executor , not consisting in facto proper to heirs , as to dispone land , &c. december . . gray contra craig . february . . carnagie contra lermonth . hope , executors , adam contra gray . and so were found lyable , to imploy a sum on land or annualrent for a wife 's liferent-use . hope , executors , john tran contra james jackson . february . . kincade contra yeoman . where the executor was not only found lyable to imploy the sum , but to pay the annualrent of it . march . . sir william fairly contra executors of fairly . and also for warrandice of an infeftment , being liquidat . july . . salmond contra orre . and an executor was found lyable to pay a creditor of the defunct , the price of lands sold to the defunct by a minute : without restricting the creditor to the heir , who only would get the right of the land by the minute , which remained incomplete ; or without causing the creditor dispone the land to the executor , in lieu of the moveables exhausted by the price : reserving to the executor relief against the heir as accords . july . . william baillie contra margaret henrison . and generally creditors have their option , to pursue the heirs or executors of their defunct debitors . yet executors were not found lyable for an annual payment for years after the defunct's death , but only his heir . febrnary . . mr. ninian hill contra maxwell . but if there had been no heretable right to affect , the executor would have been found lyable . it was long dubious , whether executors creditors were lyable for any diligence , seing they confirmed for payment of 〈◊〉 own debts , and therefore were only obliged to assign to creditors after the executors themselves were satisfied ; or at least that they had sufficient time to recover satisfaction . till the lords by act of sederunt of the . of march . declared executors creditors , lyable for what they confirm , as other executors dative : but that they are not 〈◊〉 to confirm the whole inventary . and that they might have licence to pursue , to find out the most solvent deb of their defunct debitors , making faith that they doubted of the existency 〈◊〉 , or 〈◊〉 of these debts ; and finding caution to confirm what they found good debt . and that other executors might be confirmed ad omissi , who should be lyable to all parties as principal executors . the reason whereof was , because the means of orphans , might be neglected by the confirmation of executors creditors , who were obliged to give up , and confirm a full inventary upon oath , though far exceeding their own debt , whereby other executors that were obliged to diligence , were excluded and hindered . executors creditors , are lyable for the defunct's priviledged debts : as funeral expenses , servants fees for a year or a term as the servants 〈◊〉 〈◊〉 : which are preferable to the executors creditors own debt . nov. . . david crawford contra huttoun . . but the executors have relief of all heritable debts against the heir , as the heir hath of moveable debts against the executor . july . . carnousie contra meldrunt . december . . geills shaw contra shaw. . executors may not prefer one creditor to another : and so may not make voluntary payment , but upon sentence without colinsion . and if before payment any other creditor use citation , they may not pay securely , till in 〈◊〉 double-poynding the creditors be called , and dispute their preference . december . . lyel contra hepburn . december . . white contra relict of the master of jedburgh . july . . dame margaret prestoun contra executors of hepburn . unless the creditor citing , pass from that instance . december . . rochead contra manderstoun . and therefore the ordinary defence is , that the executor is exhausted by payment , made upon sentences before intenting of the pursuer's cause . yet if the executor have payed , he may alledge , that the creditor to whom he hath payed , had done more timous diligence , and so was preferable : in which case he will be heard as that creditor were competing . and executors may pay creditors whose debts are acknowledged in testament , without process , if the same be payed before intenting of any other creditor's pursuit : but after citation debts may not be payed , though given up by the defunct in testament . march . . lady curriehill contra laird of curriehill , nicol. de haereditariis actionibus . march . . contra anderson . neither may the executor pay any other debt , though before citation , in prejudice of the debts in the defunct's testament , which puts the executor in mala fide , and in necessity to suspend on double-poynding , though these debitors testamentary insist not . march . . duff contra alves . nicol. de haereditariis actionibus . march . . scougal contra horseburgh . yea executors may not safely pay any creditor of the defunct , not being a testamentary or priviledged one , but upon sentence . otherwise executors might before any pursuit prefer what creditors they pleased . june . . andrew contra anderson . . but because creditors , relict , bairns , or legatars , may pursue the executor immediatly after the confirmation , before executors can do diligence ; therefore they cannot be decerned to pay : but either time will be granted to do diligence ; or the executor will be liberat , upon granting assignation to parts of the inventary . wherein the creditors will be first preferred , and next the relict , bairns , and legatars . . and because creditors at distance , may be excluded , not knowing of the defunct's death ; therefore the lords by act of sederunt . february . 〈◊〉 . did declare , that all creditors of defuncts , using legal diligence , at any time within half a year , of the defuncts death , by confirming themselves executors creditors , or by citation of the defunct's executors , or vitious intromettors with their goods ; shall all come in pari passu , without respect of the prioritie or posterioritie of their diligence . whereunto it is necessarly consequent , that all decreets against executors , within six moneths of the defuncts death , except for priviledged debts , ought to bear superceeding execution for seven moneths at least , after the defunct's death : that in the seventh month executors may suspend upon double-poinding , all decreets against them within six moneths of the defunct's death . to the effect all the creditors may come in joyntly , if they exceed not the inventary : and if they do exceed , they must suffer proportional abatement . but if the inventary exceed all the debts , the relict , and bairns , will have their shares , of what is free : and dead's part will be applyed to the legatars , who if their legacies exceed , must suffer proportional abatement ; but if they be less , the remainder will belong to the children or other nearest of kin. . after the six moneths are run from the defunct's death , and all debts , recovered in that time , are fatisfied ; creditors pursuing thereafter , are preferable , according to the sentences recovered by them , without collusion . as if the executor defend against one , and not another ; or that after process before the lords , other creditors prevent them by prior sentences before inferior courts : the first citation will be preferable , if they have not been negligent . . if the executor make payment , bona fide , to the relict , bairns , or legatars of the defunct , before intenting of any creditors cause ; he will be secure , against creditors intenting posterior process : for he could not hinder the payment of these , upon unknown creditors . but voluntary payment , without sentence at the instance of the relict , bairns , and legatars , will not secure him . by the roman law legatars were obliged to find cautionem mucianam , obliging them to refound their legacies , in case posterior creditors did pursue . l. si cujus es ff . de jure deliberandi , which hath not been accustomed with us . but there is competent to such creditors , action of repetition , against the relict , bairns , or legatars , which will be instructed by the discharge to the executors . . testaments or confirmations are execute , when the inventary is established in the person of the executor , either by obtaining payment bond or decreet . yet thereby the executor becomes not to have the full propertie of the defunct's goods and debts so established : but he remains fideicommissarie , and is obliged to restore . yea the decreet , or bonds granted to him for the defunct's estate , may be affected for debts due by the defunct . and in competitions betwixt the creditors of the defunct , and the creditors of the executor , the defunct's creditors are preferable : though the creditors of the executor proprio nomine , have done more diligence . and for the same cause the rebellion of the executor or his delinquency doth not confiscat the executory , although established in his person by decreets , in prejadice of the defuncts creditors ; but only the executors own interest therein . december . . mr. arthur gordoun contra laird of drum. . but executors may safely pay funeral expenses , comprehending medicaments to the defunct : because these have a priviledge , from the common obligation of humanity to bury the dead ; and therefore are preferable to all other debts of the defunct , and so may be payed at any time . decem. . . kelhead contra irving and borthwick . item servants-fees for a year or term as they are hired , and a term's house-maill or cures to the defunct on death-bed , have the like priviledge . . arrestment was found habilis modus , to put the executor in mala fide to pay other creditors , not calling the arrester , who being a cautioner , arrested all sums in the executor's hands due to the creditor , though he had not used diligence thereupon to make foorthcoming . june . . andrew couper contra lady haltoun . yet without legal diligence or intimation , exhausting as aforesaid was not found relevant against a creditor , whom the executor had acknowledged ypaying annualrent to him . spots . executors , janet telfer contra moffat . the executory is likewise exhausted , by debt due to the executor himself , without any process but meerly by exception of compensation , though he be not confirmed executor qua creditor , but executor otherwise . . the defunct's debitor will not get compensation , upon an assignation to any debt of the defunct's taken after the defunct's deceass , whereby that debitor would be preferred to other debitors doing diligence . feb. . . thomas crawford contra earl of murray . feb. . . children of mouswell contra lawrie of maxwelstoun . and likewise , if the executor had payed a debt , for which he or his predicessor was cautioner for the defunct , whereof the terms were past before payment , ( though without process ) it may be allowed : but not for cautionry , not payed before intenting of another creditor's cause . januarie . adie contra gray . . the old custome was , that executors behoved to get exoneration before the commissaries , calling the creditors and all having interest , and compting to them . and it was not relevant to alledge exhaustine , by exception , but there behoved to be a deereet of exoneration obtained , which is the only sull and general liberation . but it is not valid against creditors having out the executor in mila fide , as being creditors testamentarie , or 〈◊〉 by the executor , or using citation or arresiment . june . . andrew couper contra lady haltoun . neither is exoneration valid being general , not containing a particular accompt . march . . lady 〈◊〉 contra haddo . . but now for a long time , the lords have been accustomed to admit the exception of exhausting , albeit there hath not been a decreet of exoneration obtained . for instructing exhausting , executors may found upon payment of the priviledged debts at any time : upon the expense of confirmation : upon debts due to themselves , before confirmation ; but not upon debts assigned to them after corfirmation : upon payment of testamentary debts , after six moneths , though without process : upon payment of other debts thereafter , according to the priority of diligence : upon absolvitors of debts due to the defunct in the inventary : upon diligence by process or execution for recovery of the defunct's debts not recovered : and upon expenses of process or execution ; seing executors get no expenses modified against the defunct's debitors , who are not obliged to pay , without sentence . all which being allowed , if any thing in the inventary remain unrecovered ; the executors will either get time to do further diligence , or will be liberat , granting assignations to the creditors according to their diligence . executors are not obliged to make faith on the defunct's debts , except in so far as may concern the executor , without prejudice to creditors , legatars , wife , bairns , and nearest of kin. spots . executors . monteith contra katharine smith . march . . scot contra cockburn . march . . ker contra lady covingtoun . and therefore they cannot exoner themselves by decreet , upon their oath or holding them as confess'd , without having other probation which may be taken off by the executors oath . nicol. hic , bell contra gib . executors are not conveenable severallie nor lyable in solidum but pro virili parte : unless they have intrometted with as much as will satisfie the debt in question . july . . salmond contra orre . july . . mr. peter ewat contra atkin. july . . turnbull contra mathison . hope , legacies , mackmichael contra mackwharie . if any of the executors be dead , the office accresceth to the survivers : and they are lyable and conveenable alone . but if the deceased have intrometted with , or done diligence for any part ; in so far as the testament was execute before the executor's death , it liberats the survivers , and the pursuers must have access to those representing the deceassed . but for what is wanting through negligence of the whole executors , the survivers are lyable . and so where the deceassed had intrometted with their share , the survivers were only found lyable for their own parts . hope , legacles , haliday contra halidly . july . . peacock contra peacock . july . . atkin contra mr. peter ewat . executors are lyable for the inventary , without necessity for any to prove that they intrometted therewith : which is presumed , unless the executor show his diligence , and how he was excluded . which was sustained as to the moveables of the defunct , consirmed by an executor creditor . februarie . . pearson of kippen-ross contra james wright . and likewayes an executor was foundly able for sums confirmed , due by bonds whereof the dates were exprest in the confirmation : which were presumed payed , seing the bonds were not produced . januarie . . gray contra brown. executors are to be confirmed ubi defunctus habuit domicilium : and these who have houses or residence in divers commissariots , the chief residence is the domicile , and that commissary only confirms the whole , though in other jurisdictions . june . . laird of abercrombie contra the wife 's domicile follows her husband 's : and though she resided several months in another comissariot and died there , yet her testament was confirmed where her husband resided . july . . procurator-fiscal contra lady gordoun . but as to defuncts residing out of the countrey , their testaments are confirmed at edinburgh , yet if they die in edinburgh , or else where , not animo remanendi ; their testaments are not to be confirmed at edinburgh , but where they had their domicile . so albeit a defunct had dwelt in edinburgh half a year , in a house taken for a year and furnished for himfelf ; it was found that his testament behoved to beconfirmed in the countrey : because he had his principal domicile there with some children and servants , and attended only at edinburgh on law affairs . procurator-fiscal of the commissariot of edinburgh contra the relict and children of the deceass'd earl of panmoore . title xxxi . vitious intromission . . vitious intromission onlie a passive and no active title , even against other vitious intromettors , without assignation from the creditor . . vitious intromission is the 〈◊〉 etensive passive title , reaching onlie those who might 〈◊〉 defunct , but all other 〈◊〉 mettors . . the reason of the large extent of title . . all vitious intromettors are 〈◊〉 in solidum , and conveena 〈◊〉 verally . . whether vitious intromission be competent by exception ? . vitious intromission sustained generally , without the pursuer's condescendence . . vitious intromission is onlie competent to creditors . . how far vitious intromssion must be universal . . vitious intromission is excluded , if executors were confirmed before citation , though after the intromission . . whether executors creditors , being confirmed , exclude 〈◊〉 intromission pursued thereafter . . how far confirmation of executors although after citation , excludes vitious intromission . . super-intromission . . vuious intromission how far excluded by gift of escheat and declarator . . vitious intromission is excluded , by anie colourable title , though defective . . the cusiom of england as to intromission . . vitious intromission sapit delictum , and is onlie competent against intrometters themselves during their lise . . how far vitious intromission is excluded by acquiring bona fide ? vitious intromission is only a passive title , making the intrometter lyable to all the defunct's debts , passive : but is not an active title , whereby the intrometter can call and pursue activè . for thereupon there is no ordinary action competent at the instance of the intrometter , against his complices , for mutual relief : but the intrometter paying , must only make use of the creditor's name to give him a title , upon the creditor's assignation ; which will necessitat the other intrometters to satisfie but only pro rata , they alledging that it is to the behoose of another intrometter , whose part at least must be abated . . this is the largest passive title , extending not only to those who have relation to the defunct , and have a title to be his heir or successor in moveables ; but to any stranger intrometting without any interest : whereas gestio pro haerede , and successor titulo lucrativo post contractum debitum , can be incident to none but apparent heirs , qui precipiunt haereditatem . but not only the children and nearest of kin intrometting , are lyable in solidum for the defunct's whole debts , but any other person having no legal interest of succession . which is peculiar to this and no other nation , and not without ground . . the rise and reason of this passive title is , because moveables are more easily abstracted from creditors of defuncts , than their lands , or profits thereof , which every one will not attain without a title , at least without being apparent heir therein . but if defuncts moveables might be medled with without confirmation , or making inventary upon oath , and no further hazard than single r eitution ; there would never be a confirmation : but both creditors and orphans would be highly prejudged by abstracting and concealling the moveables of defuncts . and to remedy this , our law hath introduced this passive title , that without confirmation or other title , the medler shall be lyable in solidum to creditors . . vitious intromission is so far extended , that one intrometter may be conveened singly in solidum , and his alledging other intrometters will not liberat him pro tanto . july . . moristoun contra laird of frendraught . but where more persons ( viz. two ) were conveened together as vitious intrometters , and the probation instructed that both intrometted ; they were not found lyable in solidum , but equallie , without consideration of the proportion of their intromission . november . . james chalmers contra marshal and white . . whether vitious intromission be competent by exception , or only by action , is not yet come the length of a current custom . but there are decisions favouring either side . as if any person pursue the executor heir or cautioner of a defunct , the question is , whether they may except , that the pursuer is vitious intrometter with the defuncts goods , and thereby is lyable to pay his debts , and so is debitor aswell as creditor , & confusu ne tollitur obligatio ? it was decided affirmativè , hope , exception . lindsay contra douglass : but it was decided negativè , november . . pride contra thomson . and the negative seems more favourable , not to extend this burthensom and odious passive title ultra 〈◊〉 . and therefore vitious intromission may alwayes be purged by confirmation , before intenting of the pursuer's cause . to which it is more consonant that they who alledge vitious intromission , should not be permitted to except but pursue : that before the pursuit the intrometter may have liberty to purge . it was so found in the case of an assigny pursuing , against whom the debitor pursued alledged , that the assigny could be in no better case than the cedent who was vitious intrometter with the debitor's moveables , and so was both debitor and creditor . januarie . . captain ramsay contra william henrison . . vitious intromission was also sustained generally , without necessity to the pursuer to condescend on particulars : seing the libel bare the defender to be universal intrometter with the defunct's moveables , which is the ordinary stile of this passive title . in which case the defender was found obliged to condescend upon particular moveables which were the debitor's , and intrometted with by him by a title . januarie . . adamson contra ireland . but if the pursuit be against the defender as vitious intrometter , he ought to condescend upon the special intromission ; unless he refer it to the defender's oath , who knows his own intromission and must either adject a quality where competent , or propone a defense , to purge the vitiositie . . this passive title being so large , wants not its own limitations and exceptions . as first , it is only effectual to creditors , and not to legatars , or any other party , who cannot pursue upon this ground , nor for any further than is truely intrometted with , in those cases where these can pursue intrometters , as in special legacies , &c. . the intromission must be universal : not that the intrometter must medle with all the defunct's moveables , but must medle quasi prr universitatem , because heritage is per universitatem . and he that medles with a flock of sheep , medles per universitatem : yet many of the flock may be medled with by others , but what remains being still the flock , he is only said to medle with the flock . and so intremission with one thing , or some small thing will not infer this passive title , to make the intrometter lyable . so a relict was not found lyable in solidum , as having intrometted with the crop of five bolls of corn , eating of four or five sheep , and detaining in her possession thretty more ; not upon the accompt of her being relict , or of necessary intromission , but for that her intromission was not universal . december . . scot contra levingstoun . but if universal intromission be libelled , though the probation be not so ample , yet if it reach particulars of diver kinds , and these of moment ; it was found enough . januarie . . bruce contra where fewer kinds of less value proven , were found sufficient reo absente . and vitious intromission was inserred , by the son of a wright's continuing to work with his father's tools . june . . laird of abercairnie contra nicol. this was for a year 's rent due by the defunct to his master . but vitious intromission was not 〈◊〉 by the servants of a coal-heugh continuing to use the instruments of the coal-work for some time , without determining whether those instruments were moveable or not : but the heir was not found vitious intrometter thereby . june . . william brain contra the earl of lothian . . it seems to be on this ground , that it is a legal desense against vitious intromission , to alledge , that there are executors confirmed to the defunct ; whether it be the intrometter , or any other , though the intrometter derive no right from these executors , nor had no warrant of intromission . because executors being universal intrometters , there cannot be more universal intrometters severally : and therefore there cannot be both executors , and other universal vitious intrometters . and albeit more persons may be conveened as vitious universal intrometters , yet one or other of them must be understood to be sole vitious intrometter ; or otherwise that they all joyn in universal intromission . confirmation of executors was found sufficient to elide vitious intromission , albeit after the intromission the intrometter caused a person wholly insolvent be confirmed and find a cautioner insolvendo , and the intrometter payed the quote , and was at all the expense . july . . tenent contra tenent . spots . universal intrometters . stevenson contra paterson . . some have questioned , whether confirmation of executors creditors could purge vitious intromission , seing creditors do only confirm for their own satisfaction , and not to execute the defunct's executory , and so need confirm no more than will satisfied themselves . but i have not observed it repelled , nor is the difference convincing . for albeit executors creditors confirm to their own behoofe , yet are they universal intrometters , and must confirm all they know , and so make inventary : albeit their interest to be executors , be but qua creditors . and albeit they be not lyable for so exact diligence as others , it was found relevant to exclude vitious intromission , that an executor creditor was confirmed . june . . douglass contra touris . january . . stevenson contra ker and others . the matter may be more dubious now , since the late act of sederunt , whereby executors creditors are not obliged to confirm all they know , or make faith on the inventary ; but so much as they think may secure their debts : and therefore other executors may be confirmed . so that the danger and inconveniency of vitious intromission remains , and executors creditors so confirming , are not universal intrometters . and therefore it is like , that by such confirmation vitious intromission with moveables not confirmed , will not be excluded by such confirmation . . confirmation of executors regularly , is not relevant to purge vitious intromission , whether by the intrometter , or others , in so far as concerns those creditors , who had used citation and diligence against the vitious intrometters before confirmation , whose sentences are drawn back to their citation : especially si non sint in mora , and so est jus iis quaesitum , at least inchoatum , before confirmation . decem. . . durtie contra clerk. but this must be limited thus . if the creditor hath used citation shortly after the defunct's death , there being no competent time to confirm , neither any time limited in law other than year and day , after which the executor must be comptable to relieve the heir : therefore unless the intrometter were meerly praedo having no interest , as neither being wife , bairn , nearest of kin , or having a disposition without delivery ; it is sufficient to confirm after the intenting of the creditor's cause , being within year and day . in which case the intrometter confirming will be lyable secundum vires inventarii , albeit only conveened as intrometter , not as executor : without necessity of a new process . it was so found in the case of the defunct's son , who intrometting , and being cited , yet confirming within year and day ; was but lyable as executor . january . . aldie contra gray . hope executors , bald contra hamiltoun . spots . eod . thomson contra laird of rentoun . jan. . . margaret stevenson contra ker and others . . the exception of confirmation of executors is elided , by alledging that the intrometter , though having confirmed , yet hath fraudently concealed some part of the goods and means , not put in the inventary . which super-intromission dolosè , is relevant to elide confirmation . hope executors , raeside contra cathcart . spots . eod . cleiland contra baillie . which holdeth , if the intromission were before the confirmation : but if it was after , it useth not now to be sustained , till the creditor confirm as executor dative ad omissa , that the quote be not lost . july . . irving contra forbess of tolquhon . super-intromission was also sustained without a dative ad omissa , to elide exhausting proponed by an executor . jan. . . margaret inglis contra 〈◊〉 bell. . when defuncts die at the horn , declarator of their escheat hath the same effect to exclude vitious intromission as the confirmation of their executors ; not only competent to the donatar intrometting , but to any other intrometter : for both being universal titles , reaching the defunct's moveables , every intrometter there with is lyable . decem. . . ogilvie contra and a gift of the escheat obtained by the intrometter , albeit after the intromission , being before citation at the instance of the creditor pursuing ; was found relevant to exclude vitious intromission : because the donatar needs no declarator for what was in his possession , nicol. de haereditariis actionibus , moodie contra hay of fourlands . but if the gift were taken before the defunct's death , if it be simulat , by the defuncts retaining possession during his life ; it will annull the gift and declarator , and exclude the defense thereupon : as was found in the foresaid case , ogilvie contra nor will a gift and declarator be sufficient against any creditor pursuing the intrometter , the gift being post motam litem . or though the gift was ante motam litem , it will only defend the donatar intrometting , or those deriving right from him : but not other intrometters , as had. observes , but expresseth not the parties . jan. . . and as was found in the case of the intrometter's obtaining a gift ante motam litem , though after his intromission : although citation was used before declarator . july . . lord johnstoun contra johnstoun . jan. . . chalmers contra agnes gordoun . and vitious intromission was elided by an heir's intromission with his father's moveables , having obtained a gift as soon as was possible , his father having died rebel in sepemb . and the gift being obtained in novemb. so soon as the exchequer sat , albeit the gift was after citation . january . . john urquhart contra arthur delgarno . yea if the intrometter did intromet by right or warrant from the donatar , whose gift was ante motam litem albeit before declarator , it is sufficient . as was found by a tolerance from the donatar . nicol. de haereditarits actionibus cairncross contra crookshank . and by a warrant from the donatar . july . . mr. walter innes contra george watt. but it is not relevant to alledge , that the defunct died at the horn , and thereby had no moveables , which were become escheat to the king. feb. . . gray contra dalgarne . . vitious intromission is also restricted to the single value , when it is by vertue of a disposition from the defunct , albeit the disposition was found null by reply , as done in defraud of creditors , by a husband to his wife . june . . bonar contra lady couper . and a disposition of moveables , with an instrument of possession , being for a cause onerous , granted while the defunct was on death-bad though there was no natural possession till after his death ; wassustained to purge vitious intromission . july . . alexander brown contra lawson . but a disposition of moveables , where the disponer retained possession during his life , was not sustained . nicol. de haereditariis actionibus , strachan cont . scot. the like where the disposition was to the defunct's son's wife : seing the defunct retained possession for a considerable time ; his son and his wife being with him in family june . . dalrymple of waterside contra laird of closeburn . so that such dispositions , if the defunct live long after retenta possessione , are not sufficient , as in the last two cases . but if the disposition were shortly before the defunct's death , that his continuing in possession would not 〈◊〉 simulation or frand , the same would purge the vitious intromission , at least restrict 〈◊〉 to the single value . . by the law and custom of england , vitious intromission with a defunct's moveables doth only extend to the single value . and therefore intromission being made in england , was extended no further here . july . . lord dingwal contra wanderson . . vitious intromission being penal , sapiens naturam delicti , is not to be sustained against any as representing the intrometter , when there is no action intented against him in his own life : after which , no other can be able to clear the title of his intromission with moveablegoods quae transeunt per commercium , and so the defunct might have bought them bona fide . july . . cranstoun contra wilkison . and for the same reason behaving as heir by intromission with heirship-moveable , is not sustained after the intrometter's death , as hath been observed in that title ; though there can be less pretence of commerce in that case . yet though decreet were not obtained before the intrometter's death , if litiscontestation were made against him compearing , when it was proper to him to purge his intromission by any competent defense ; if the same were proven after his death , it might overtake his successors : unless the intromission had been simply referred to his oath ; for then dying before he gave his oath , his successors could not be lyable , because he might either have qualified or denyed his intromission . . vitious intromission is simply excluded by those who acquire , by way of commerce bona fide , for a just price : albeit in some cases executors may recover defuncts goods reivendicatione . but where bona fides doth not appear , but collusion or fraud , the buying of defuncts goods will not be sustained . as was found in the case of a party deponing that he bought a defunct's goods within ten dayes after the defunct's death , when he knew there could be no confirmation of the same , or lawful title thereto : albeit he deponed that the seller had a disposition from the defunct , but which he did not produce , and his oath was not found to prove it , but the acquisition was found to be a collusion , the buyer being the defunct's goodson , pretending to buy from a stranger . nov. . . irving contra kilpatrick . the orders for swannes, both by the statutes and by the ancient orders and customes vsed within the realme of england laws, etc. england and wales. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a stc . estc s ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the orders for swannes, both by the statutes and by the ancient orders and customes vsed within the realme of england laws, etc. england and wales. sheet ([ ] p.). s.n., [london? : ?] imprint information from stc ( nd ed.). ends: god save the king. contains numbered articles. reproduction of original in: society of antiquaries. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets 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and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- great britain. swans -- great britain. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - megan marion sampled and proofread - megan marion text and markup reviewed and edited - pfs batch review (qc) and xml conversion ❧ the orders for swannes , both by the statutes and by the ancient orders and customes vsed within the realme of england . first , ye shall enquire if there be any person that doth possesse any swan , and hath not compounded with the kings maiesty for his marke : that is to say , vj. s. viij . d. for his marke during his life : if you know any such , you shall present them , that all such swans and cignets may be seized for the king. also you shall enquire if any person doth possesse any swan or cignet , that may not dispend the cléere yearly value of fiue markes of frée-hold , except heyre apparant to the crowne : then you shal present him . . edw. . also if any person or persons doe driue away any swan or swans , bréeding or prouiding to bréed , be it vpon his own ground or any other mans ground , he or they so offending shall suffer one yeares imprisonment and fine at the kings pleasure , xiij . s. iiij . d. . h. . if there be found any weares vpon the riuers , not hauing any grates vpon them , it is lawfull for euery owner , swanmasters or swan-heards , to pull vp or cut downe the birth net or gyn of the said weare or weares . if any person or persons be found carrying any swan-h●●ke , and the same person being no swan-heard , nor accompanied with two swan-heards : euery such person shall pay to the king xiij . s. iiij . d. that is to say , iij. s. iiij . d. to him that will informe , and the rest to the king. the ancient custome of this realme hath and doth allow to euery owner of such ground there any such swan shall heiry , to take one land bird , and for the same the kings maiesty must haue of him that hath the land bird xij . d. be it vpon his owne ground or any other . it is ordeyned , that if any person or persons do conuey away , or steale away the egge or egges of any swans , and the same being duly proued by two sufficient witnesses , that then euery such offendor shall pay to the king xiij . s. iiij . d. for euery egge so taken out of the neast of any swan . it is ordeyned that euery owner that hath any swans , shall pay euery yeare yearely for euery swan-mark iiij . d. to the master of the game for his fée , and his dinner and supper frée on the upping dayes . and if the said master of the game faile of the foure pence , then he shall distraine the game of euery such owner that so doth fayle of payment . if there be any person or persons that hath swans that doe heiry vpon any of their seuerall waters , and after come to the common riuer they shall pay a land-bird to the king , and be obedient to all swan lawes : for diuers such persons doe vse collusion to defraud the king of his right . it is ordeyned that euery person , hauing any swan , shall begin yearly to marke , vpon the first of august , and no person before ; but after , as coueniently may be , so that the master of the kings game , or his deputy , be present , and if any take vpon him or them to marke any swan or cignet , in any other maner , to forfeit to the kings maiesty for euery swan so marked , xl . s. it is ordeyned that no person or persons , being owners , or deputies , or seruants to them or other , shall goe on marking without the master of the game or his deputy be present , with other swan-heards next adioyning , vpon paine to forfeit to the kings maiestie xl . s. it is ordeyned that no person shall hunt any ducke or any other chase in the water , or néere the haunt of swans in fencetime , with any dog or spaniels , viz. from the feast of easter to lammas , vpon paine for euery time so found in hunting , to forfeit sixe shillings eight pence . it is ordeyned , that if any person doth set any snares , or any maner of nets lime or engines , to take bittorns or swans , from the feast of easter to the sunday after lammas day , he or they to forfeit to the k. maiestie for euery time so setting , vj s. viij . d. it is ordeyned , that no person take vp any cignet vnmarked , or make any sale of them , but that the kings swan-heard , or his deputy be present , with other swan-heards next adioyning , or haue knowledge of the same , vpon paine to forfeit to the kings maiesty xl . s. it is ordeyned that the swan-heards of the duchy of lancaster shall vp no swan , or make any sale of them , without the master of the swans or his deputy be present , vpon paine to forfeit to the k. maiesty xl . s. and in like maner , the kings swan-heard shal not enter into the liberty of the duchy , without the duchy swan-heard be there present , vpon the like paine to forfeit xl . s. it is ordeyned , that if any swans at cignets be found double marked , they shall be seized to the kings vse , till it be proued to whom the same swans or cignets doe belong . and if it cannot be proued to whom they doe belong , that then they be seized for the king , and his grace to be answered to the value of them . it is ordeyned , that no person make sale of any white swans , nor make deliuery of them without the master of the game be present , or his deputy , with other swan-heards next adioyning , vpon paine to forfeit xl . s. whereof vj. s. viij . d , to him that will informe , and the rest to the k maiesty : it is ordeyned that no person shal lay leapes , set any nets or drag , within the common streames or riuers vpon the day time , from y e feast of the inuention of the crosse to y e feast of lammas , vpon pain so ost as they be found so offending , to sort . xx . s. it is ordeyned , that if the master of the swans or his deputy , do seize or take vp any swans as strayes , for the k. maiesty , that he shall kéepe them in a pit within xx . foot of the kings streame , or within xx . foot of the common high way , that the k. subiects may haue a sight of the said swans so seized , vpon paine of xl . s. it is ordeyned , that if any person do raze out , counterfeit or alter the marke of any swan , to the hindering or losse of any mans game , that euery such offendor duly proued before the k. maiesties comissioners of swans , shal suffer one years imprisonment , and pay in l vj. s. viij . d. to the king. it is ordeyned that the commons , that is to say , dinner and supper shall not excéed aboue xij . d. a man at the most . if there be any game found where the dinner or supper is holden , vpon that riuer , the owner being absent , and none there for him , the master of the game is to lay out viij . d. for him , and he is to distraine the game of him that faileth the payment of it . it is ordeyned that there shal be no forfeiture of any white swan or cignet , but onely to the k. grace , as well within the franchise & liberties as without : and if any do deliuer the swan or cignet so seized , to any person but only to the master of the kings game , or to his deputy , to the k. vse , he is to forfeit vj. s. viij . d. and the swans to be restored to the master of the game . it is ordeyned , that no person shall take any gray swans or cignets , or white swans flying , but that he shall within foure dayes next after , deliuer it or them to the master of the k. game , and the taker to haue for his paines viij . d. and if hee faile , and bring him not , he forfeits xl . s. to the king. it is ordeyned , that no person hauing any game of his own , shall be swan-heard for himselfe , nor kéeper of any other mans swans , vpon paine to forfeit to the k. maiesty xl . s. it is ordeyned , that no swan-heard , fisher or fowler , shall vexe any other swan-heard , fisher or fowler , by way of action , but only before the k. maiesties justices of sessions of swan-heards , vpon paine to forfeit xl . s. to the king. the master of the kings game shall not take away any vnmarked swan coupled with any other mans swan , for breaking of the brood : and when they doe heiry , the one part of the cignets to the king , and the other to the owner of the marked swan . also , any man whatsoeuer he be , that killeth any swan with dogge or spaniels , shall forfeit to the king xl . s. the owner of the dog to pay it , whether he be there or no. also the master or the swans is to haue for euery white swan and gray vpping j. d. and for euery cignet ij . d. it is ordeyned , that if any heiry be leyed with one swan , the swan and the cignets shall be seized for the king , till due proofe he had whose they are , and whose was the swan that is away , be it cobbe or pen. lastly , if there be any misdemeanour or offence committed or done by any owner of any game , swan-heard or other person whatsoeuer , contrary to any law , ancient custome or vsage heretofore vsed and allowed , & not before herein particularly mentioned or expressed , you shall present the same offence , that reformation may be had , and the offendors punished , according to the quantity and quality of the seuerall offences . god save the king . an act impowering judges for probate of vvills, and granting administrations public general acts. . england and wales. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason .f. [ ]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing e thomason .f. 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) an act impowering judges for probate of vvills, and granting administrations public general acts. . england and wales. sheet ([ ] p.) printed by john field, printer to the parliament. and are to be sold at the seven stars in fleetstreet, over against dunstans church, london : . dated at end: ordered by the parliament, that this act be forthwith printed and published. passed the th of may . tho. st nicholas clerk of the parliament. steele notation: autho- powered june. annotation on thomason copy: "may. .". reproduction of original in the henry e. huntington library. eng law -- great britain -- history -- early works to . courts -- law and legislation -- early works to . great britain -- history -- commonwealth and protectorate, - -- early works to . broadsides -- england a r (thomason .f. [ ]). civilwar no an act impowering judges for probate of vvills, and granting administrations. england and wales a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - emma (leeson) huber text and markup reviewed and edited - pfs batch review (qc) and xml conversion blazon or coat of arms incorporating the commonwealth flag ( - ) an act impowering judges for probate of vvills , and granting administrations . be it enacted by this present parliament , and by the authority thereof , that john sadler , john sparrow , and samuel moyer , esqs , be , and are hereby nominated and appointed iudges for the probate of wills , and granting administrations . and the said john sadler , john sparrow , and samuel moyer , or any two of them , are hereby authorized , impowered and required to hear , order , determine , adjudge and decree in all matters and things , as iudges for the probate of wills , and granting of administrations in as full , large and ample maner as any other iudge or iudges for probate of wills , and granting of administrations at any time heretofore might or ought lawfully to do : to have , hold , exercise and enjoy the said office or place of iudges for probate of wills , and granting of administrations , until the thirtieth day of june one thousand six hundred fifty and nine , and no longer . ordered by the parliament , that this act be forthwith printed and published . passed the th of may . tho. st nicholas clerk of the parliament . london , printed by john field , printer to the parliament . and are to be sold at the seven stars in fleetstreet , over against dunstans church , . a philologicall commentary, or, an illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by edward leigh ... leigh, edward, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing l estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a philologicall commentary, or, an illustration of the most obvious and useful words in the lavv with their distinctions and divers acceptations, as they are found as well in reports antient and modern as in records and memorials never printed : usefull for all young students of the law / by edward leigh ... leigh, edward, - . the second edition reviewed and inlarged. [ ], , [ ] p. printed by a.m. for charles adams, and are to be sold at his shop ..., london : . the author's name appears after the edition statement. advertisement: p. [ ] at end. reproduction of original in huntington library. marginal notes. signature a is lacking in filmed copy. pages from beginning- photographed from british library copy and inserted at end. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to 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errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- terminology. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion a philologicall commentary : or , an illustration of the most obvious and useful words in the lavv. with their distinctions and divers acceptations , as they are found as well in reports antient and modern , as in records , and memorials never printed : usefull for all young students of the law. arist. . metaph. cap . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . the second edition reviewed and inlarged . by edward leigh gentleman , sometimes of the middle temple . london , printed by a. m. for charles adams , and are to be sold at his shop at the sign of the talbot near s t dustans church in fleetstreet . . to the right honourable and his honoured kinsman john lisle esq one of the lords comissioners of the great seal of england . my lord , if consanguinity and long acquaintance , and converse together in three famous societies , may be a sufficient ground for the dedication of a book to one ; i hope , it will neither seem incongruous to others , nor be judged presumption by you , that i make choice of a lawyer , and among them , of your self ( one of such eminent place in reference to the laws of the land ) to patronize a treatise of our municipall laws . i wish the vvork were as well worthy of your acceptance , as the application of my self to you is proper . lex humana ( saith aquinas ) est quoddam dictamen rationis , quo diriguntur humani actus . a humane law is a certain dictate of reason by which humane acts are directed . the law of this land is held to be the best every way for this nation , it being the birthright ( as one of the great sages of the law saith ) and the most antient and best inheritance that the subjects of this realm have ; for by it they enjoy not only their inheritance and goods , in peace and quietness , but their life and their most dear country in safety ▪ among other principles of the law are divers generall and particular customes , cum enim aliquid multoties fit ( saith the schoolman ) videtur ex deliberato judicio provenire , & secundum hoc consuetudo & habet vim legis , & legem abolet , & est legum interpretatrix . for when any thing is done very often , it seems to proceed from deliberate judgment , and according to this custom both hath the force of a law , and abolisheth a law , and is the interpreter of laws , your office is to moderate the rigour of the law , to weigh what is generally meet , and for the person . your court is a court of equity or conscience , as some call it . let conscience bear sway in all your publick and private determinations : it is a study well becoming a christian magistrate ; to labour in all things to approve his waies to god , acts . ● . heb. ▪ . lay out your self and your abilities for him , before whose barre the highest judge on earth must one day stand , and the higher our standing here is , the greater will the account be at the generall audit. the consideration of which , i hope , will have an influence upon all your sentences and actions ; if you shall make it your vvork to exalt god , he will pour his blessings abundantly both upon your self , and whole family , which shall be the desire of my lord , your affectionate kinsman and servant , edward leigh . to the candid reader . reader , there are three chief faculties , law , physick , and divinity ; the one respects the estate , the other the body , the third the soul. every englishman should labour for a competency of knowledg in all three ; first of the laws of the land , that he may not ( through the ignorance thereof ) prejudice his estate ; secondly , of physick , as the proverb saith , every man is a fool or a physician ; that is , either knows what is good or hurtfull for his own body , or else is not so wise as he should be ; thirdly , of divinity ; a man may be a bad christian notwithstanding this knowledg ; but he cannot be a good christian without it . the study of the law is multorum annorum opus , and it must needs be the more difficult to attain unto perfection in it , since , though there be inns of court ( colledges as it were for students in that profession ) yet the law it self is not so well methodized ( as other sciences ) nor are there tutors or publick teachers of the same , as of other arts ; but every student is to acquire knowledg in it by his own industry : most of the cases which he reads , are to be commited to memory . of all that have written systematically as it were by way of institutes , littleton is most extolled , he being the * ornament of the common law , and ( as some say ) the most perfect and absolute work that ever was written in any humane science ; i have collected my materials out of him and sir edward cook upon him , and his reports , perkins , fitzherb . nat. brevium , ployden , l. dyer , brooks abridgment , dr. and student , terms of law , cowels interpreter , and many others , some of which i quote in the margin almost for every thing . and i hope that this little treatise being in english , and digested into an alphabeticall order , will be usefull for young students in the law , iustices of peace , and other countrey gentlemen , whose benefit i especially intend in the publication of it . but least any should object ( as perhaps some may ) that i have nothing here but what is already in the terms of law , and cowels interpreter ; i shall intreat the iudicious , to compare what i have of the word accessary , actions , appeal , in the letter a. with what is in them , and so likewise in any other letter ; ( to instance in no more ) and i doubt not but he will acknowledge , that there is difference enough between this and the others , though i do make use of them , as i do of divers other authors . this may suffice by way of preface , i shall no longer detain thee from the book , but wishing thee much good by these my labours , i rest , thy hearty well-wisher , edward leigh ▪ ab interpretatione ad nomen ipsum derivatum sicuti à genere ad speciem desumpta argumentatio est inanis , quod etymologia latius puteat quam nomen ipsum , certe in his reciprocatio obscura & incerta est , maxime lege vernacula ) sed à derivato ad derivationem argui longè melius potest , ut tutor , ergo tueri debet , &c. a philologicall commentary . abate . abate is both an english and french word , and signifieth in his proper sense , to diminish , or take away ; as one that abateth in lands or tenements , by his entry diminisheth and taketh away the freehold in law descended to the heir ; and so it is said to abate an account , signifying substraction or withdrawing ; and to abate the courage of a man. in another sense it signifies to prostrate , beat down , or overthrow ; as to abate castle● , houses , and the like ; and to abate a writ , is to destroy it , by pleading for them that makes it actious or not proper , and hereof cometh a word of art , abatamentum , which is an entry by interposition , after the death of the ancestor and before the entry of the heir . abbot . abbot , in latin abbas , in french abbè , is by skilfull linguists said to come from the syriack word abba pater , and in our common law is used for him that in the covent or fellowship of canons , hath the rule and prehemmence , he is called the head of the house , he is chosen from amongst the monks and is one , as to all purposes as but in relation to the corporation . abeiance . abeiance , it seems to be derived from the french ( abayer ) i. e. al●a●ra●e , to bark at , as dogs do against a strang●r , or spaniels at a feasant , put to the perks . so children are said , bayer à la ma●●r● , when seeing the dug , they struggle and make means towards it . our antient law●●rs would sig●i●●e hereby a kind of hope or lo●ging expectance , be cause that there things that be in ab●iance , though for the present they b● in no man , yet they are in hope and exp●c●ation belonging to him that i● next to enjoy them . when a parson of a church dyeth , we say tha● the freehold is in abeiance , because a successour is in expectation to take it . it a tenam ●or term o● anothers life dy●th , the freehold is said to be in abeiance , un●ill the occupant ent●reth . if a ●●● make a lease for life , the rem●inder to the right heirs of i. s. the fee-simple is in abeiance , untill i. s. dyeth ; because as long i. s. liveth , his hei●● are in himself , and he hath no heirs to take by that name and purchase , and therefore during the li●● o● i. s. this remainder is in the preservation of the law , in nubibus , the cloudes or lap of the law. accessarie . . before the offence or fact , is he that commandeth or procureth another to do felony , and is not there present when the other doth it ; but i●●e be present , then he is also a principal . . ●●●r the ●●●●nce ▪ is he that receiveth , favoureth , ●id●rh , a ●●●●eth , or comforteth any ma● that hath done any murder , or felony ▪ where o● he hath knowledg . he which counselleth or commandeth any evil thing , shall be judged accessary to all that followeth o● this evil act , but not o● another distinct thing ▪ as i command one to beat another , and he beat him so , that the other di● of it ; i shall be ●●●●ssary to this murder , for it is a sequel of my c●●●andement . but if i command one to steal a white horse , and he s●eals a black one ; or to bu●● such a house , which he w●ll knoweth ▪ and he b●●n the house o● an●ther : i shall ●ot be accessary 〈◊〉 . so if i command one to rob such a g 〈…〉 o● his pla●e in such a place , as he is goi 〈…〉 g f●i● , and he br●ak his house in 〈…〉 sid● , ●nd th 〈…〉 away hi● pla●e ; i shall 〈…〉 essar● to this ba 〈…〉 , for this i● 〈…〉 ny : ●ut i● i command one to kill 〈…〉 in the ●●ld , an● he kill him in the city or chur●h ; or i command him to kill him at such a day and he kill him a● another day ; i shall be accessary ▪ for the killing is the substance , an● the day , place , or weapon , is but circumstance . ●ut if i command one to kill i●hn a s. and be●ore he hath kill'd him , i come and say , that i am peni●ent for my mali●e , and charge him no● to kill him ▪ and y●t he kill him ; i shall not be acc●ssary . where the p●incipall is pardoned , or ha●h his clergy , th 〈…〉 ary cannot be arraigned ; ●or the maximm● o 〈…〉 aw is , vbi ▪ non 〈…〉 or it doth nor appear by the judgm●nt of the law , that he was principall ; but if the principall after attainder be pardoned , or hath his clergy allowed him , there the acce●●ary shall be ar●a●gned , because it appeareth ●udicially that he was principall . some have holden , that neither f●r ●elony nor m●im , the accessary shall be ar●aigned , till the attainder of the principals . in the lowest and highest offences , there are no accessaries , but all are principals , as in ryot● , routs , forcible entries , and other transgressions , ●i & armis , which are the lowest offences ; and so in the highest offence , which is crimen ●oesae majestatis , there be no accessaries , but in felony there are both before and after . in the third of queen mary a maidservant conspired with a bad fellow to rob her mistris , and in the night she opened the door , and brought the fellow to the bed of her mistris , who did kill the mistris , the maid holding the candle , but saying nothing ; she was not a principal , ( thoug● she was present at the act , and did concur with the murderer from the beginning to the end ) but accessary , because opening of the door , and holding of the candle was not parcell of the consummation o● the act . q●aere i● this be petty treason in the maid-servant , since it is but murder in the other , although she was present when her mistris was murdered . yet she cannot , as i take it , be a ●●aytor else , the principal being but a murderer . acquittance . acquittance is a discharge in writing of a summe of money , or other duty which ought to be paid or done . this word di●fereth from those which in the civil law be called acceptilatio , or apocha , for the first of these may be by word , without writing , and is nothing but a feigned payment and discharge though payment be not had . apocha is a writing witnessing the payment or delivery of money , which dischargeth not unless the money be paid . acquiter . acquiter is compounded of ad and the old verb quietare , ●nd signifieth in law to discharge or keep in quiet , and to see that the tenant be safely kept from any entries or molestation , for any manner of service issuing out of the land to any lord that is above the mesne , hereof cometh acquital & quietus est , i. e. he is discharged ; and he that is discharged of a selony by judgment , is said to be acquitted of the selony a 〈…〉 atus de ●el-nia , and if it be drawn in question again , he may plead auter sois acquite . and acquitall is either in deed or in law ; acquitall in deed is either by verdict , or by battell , by verdict when by a jury he is found not guilty o● the offence whereof he is charged : by battell , as when in an appeal the plaintiff yeeldeth himself crea●t or vanquished in the field , the ●udgment shall be that the appelee shall go quit , and that he shall recover ●●● damages . acquital in law is where two are indicted , the one as principall , the other as accessary , if the principall be acquitted indeed , th●●ther shall not be tryed , but shall be call'd to be acquitted in law of course , but i● the principall be discharged for the insufficiency of the indictment against him or have his clergy the accessary i● not acquitted . acre . acre , is a certain parcell o● land that containeth in length ● perches , and in bredth four perches , it comes from the germane word ( acker ) id est , ager . action . action , an action is a right of prosecuting in judgment of a thing which is due unto any one . it may well be called an action , quia agitur de injuria , for it is a complaint of an injury received . actions are . personall , whereby a man claimeth debt or other goods and chattels , or damage for them , or damages for wrong done to his person , it is properly that which in civil law is called actio in personam . . beall , whereby the demandant claimeth title to have a freehold in any lands , or tenements , rents or commons in free-simple , 〈…〉 tail , or for term of life . . mixt , whereby something in the reallity i● recovered ▪ and damages also , as in 〈…〉 . actio personalis m●●●itur cum p●rs●na . this rule is not generally to be admitted , but only in such cases where the wrong did p●inc●pall● and 〈…〉 rest upon a man person , as if one scandalize or bea● another , if either pa●ty ●y the ●●tion is gone , b●t an e●●●●ut● may ha●e a w●i● of covenant , which is a thing meerly personall , or any action upon the case , as the case is . an action upon the case ( called by the civilion● , a●ti● in●●●iarum ) is so termed in the common law , because every mans case must be in the action , specially , and at large set down ; for in that action , the writ ought to comprehend the special matter , as well as the declaration . if a man deliver a horse to one to keep him safely , the defendant equum illum tam negligenligenter custodivit , ut ob defect●m b●nae cust●diae in●eriit . so i trust my shepherd with my sheep , and they perish through his negligence , an action of the case lieth here . an action upon the case doth not ly at the common law for calling a man here●ick , or adulterer , but in the spiritual law , for those of the common law cannot discusse what is h●resie or adultery , but for calling one traitor or ●elor an action lieth at the common law. if a smith prick my horse with a nail , i shall have an action of the case , and so likewise if he warrant to cure my horse and doth not ; but if he do what he can , and not warrant the curing of him , it will not lie . if one cha●ge another that he hath forsworn himself , this is not actionable , because he may be ●or●worn in usuall communication , quia benigni●r 〈…〉 in verbis genera●●bus seu du●●iis est praeser●nda . it is a●● usuall word of passion and cho●er to say that another hath forsworn himself , as if one say to another , that he is a villain , rogue , or va●let , vel s●●i ia , these will not bear an action , for ●●ni judicit est ●●●es d●●imere , but if one say to another that he is preju●ced , or that he hath forsw●rn himself in such an action , in such a court , for such words an action may be maintainable , for here it appeareth that he hath forsworn himself in a j●dicial proceeding . so if a man say , that another is main sworn , a word in the north for perjured , or in welsh call a man an idoner , which is to the same purpose , an action will lie . in every action upon the case for ●landerous words , two things are required . . that the person which is scandalized be certain . if one say one of the servants of i●hn a s. is a notorious thief , he having divers , these words will not bear an action for their uncertainty . . that the scandall be apparent by the words themselves ; and therefore if the defendant say to the plaintiff , that he is full of the pox , it shall be taken to be the small pox , though the plaintiff declares with an innuendo , the french pox , for words shall be taken in miltore sensu , where they may be applied two waies . if one say to i. s. thou art a traytor , here constat de persona , and the action lieth ; or if one scandalize a man in his profession or trade , by which he gets his living : as skinner a merchant , said of manwood chief baron , that he was a corrupt judg , and it was adjudged that these words were actionable . popham saith , if one say of a woman that keeps an inn , that she hath a great infectious disease , by which she loseth her guests , she shall have an action upon the case . if one say of a merchant , that he is a bankrupt knave , an action lies , or that he will be a bankrupt in two days , which imports onely an inclination ; yet an action lies . if one call another thief or traytor generally the action will lie , but if one say , thou art a thief , for thou hast robbed my orchard ; or , for thou hast robbed my hop-ground ; these words are not actionable , for the last words prove it to be no felony , and so qualifie the proper sense of this word thief . if the goaler of malice fore thought , lay so many irons on the prisoner , as to lame him , he shall have his action on the ca●e . if a man play with others at dice , and he hath ●alse dice , with which he playeth and winneth the others money ; he which hath lost his money , may have his action on the case for this deceit . an action or trespass upon the case lieth against the keeper of a common inn , if goods be imbe●eled in●r●h ●●spitu●● . if a man sell a horse to another , and war●ant him to be good , and the horse hath some secret disease in his body which he knoweth of ; the other shall have a writ of trespass on the case against him . so if one sel wine , and warrant it to be good , and it is naught , an action of the case will lie . if a mans servant be beaten , the master shall not not have an action for this battery , unless it be so great , that by reason thereof , he loseth the service of his servant ; but the servant himself shall have an action for every petty battery , cook ● . rep. morys case . adiouenment . ad●ournment , is when any court is put off , and a●ligned to be kept again at another place or time . admission . admission , is when one that hath right to present to a church being void , doth pre●●nt him to the bishop of the diocess in which the church i● , who upon examination finding him idoneus pers●na that is capable and able , doth consent that he shall be parson , and saith admitt●●● habi●●m . administrator . administrator , is he to whom the ordinary ( id est ) the bishop doth commit or give power to dispose and administer the goods , and chattels within his diocess belonging to any person that is dead , without executor for the benefit of such persons , or if the party make a will and executor and they all refuse , or the executor be within the age of years . administrator durante min●re aetate , cannot sell any of the goods of the dead , unless it be of necessity for the payment of debts , or b●na 〈…〉 , for he hath his office of administration 〈…〉 d● of the infant , and not for his prejudice . the words of such letters are , administ●ati●n●m ●mnium & singalorum bonorum ad ●p●●● , ●●min dum , & utilitatem exe●utri● . durante sua mia●●e aetate & non aliter , nec alio modo commit●imus ; such administration ceaseth at the age of seventeen of the infant . where one hath goods onely in an inferiour diocess , yet the metropolitan of the same province , pretending that he had bona notabilia in divers diocesses , commits administration ▪ this administration is not vo●● , but voidable by sentence , because the metropolitane hath jurisdiction over all the diocesses within his province , but if an ordinary of a diocesse commit administration of goods , when the party hath 〈…〉 in divers diocesses , such administration is meerly void , both for the goods in his diocesse , and elsewhere , because that by ●● means he can have jurisdiction of the cause . advowson . advowson of a church is the right of presentation or collation to the church , adv●catio , so called , because the righ● of presenting to the church was first gained 〈…〉 uch i● were founders , benefactors or maintainers of the church , viz. . ration● fundationis , a● where the ancestor was founder of the church , or ratione 〈…〉 nis , where he endowed the church , or . 〈…〉 sundi , as where he gave the soil whereupon the church was built , and therefore they were called advocati , and thereupon the advowson is called jus patronatus . in an advowson or rectorship , there are three distinct rights , viz. . ius presentationis , which doth belong to the patron . . ius ordinationis to the ordinary . . ius possessionis , to the parson imparsonee . if a man seized of an advowson in fee , by his deed granteth the next presentation to a. and before the church becometh void , by another deed grant the next presentation of the same church to b. the second grant is void ; for a. had the same granted to him before , and the grantee shall not have the second avoidance by constructio● ▪ this hath been resolved by the justices . affeerors . * affeerors are such as are appointed in court-leets , to mulct such as have committed any fault , which is arbitrably punishable , and for which no express penalty is prescribed by statute . the 〈…〉 ament is the act of the court , and t●e 〈…〉 ment the act of the jury , cook lib. . ●●●il●● case sol . . b. affray . 〈…〉 is derived of the french affray●● , which 〈…〉 ine . it may be without word or ●●w ●iv●n , as if a man i●●●●●hew himself ●●● 〈…〉 with armour ●● weapon which is no usuall w 〈…〉 it will strike a fear into 〈…〉 er that be not 〈…〉 , a● he is : for which reason i● i● a common wrong and inquirable in a lect. which makes it di●●●r ●rom assault , which is alwa●s a particular injury . age . there are diversity of ages , which the law takes notice of . a woman hath seven ages for several purposes appointed to her by law , as seven years for the lord to have aid pour file marier , nine years to deserve dower , twelve years to coment to ma●●iage , untill fourteen years to be in ward , years to be out of ward , if she attained thereunto in the life of her ancestor , sixteen years to tender her marriage , if she were under the age of fourteen at the death of her ancestor , and twenty one years to a ●enate her lands , goods , and chattels . a man also b● the law for several purposes hath divers ages a●●igne● unto him ; viz. twelve years to take the oath of allegiance in the leet , years to consent to marriage , and for the heir in ●o●● age to choose his guardian , and fourteen years is also accounted his age of discretion , fifteen years for the lord to have aide pour sai●e fit● chivaler , under to be in ward to the lord by knights service , under to be in ward to a guardian in soccage , and to be out of ward of a guardian in chivalry , and to alien his lands , goods and chattels . before the age of twenty one years , a man or a woman is called an infant . full age regularly is twenty one years for man or woman to enable them to seal any bond or any deed whatsoever ; a man cannot lawfully be impannelled in a jury before that age , and at years he may administer as executor . agreement . agreement ( saith pl●●d●● ) is a word compounded of two words , aggregatio & mentium , i. e. agreement of mindes , it is a consent of minde , in something done or to be done , ab aggredi●●d● dicitur , saith spelman . if i sell all my corn for twelve pence every bushell , notwithstanding the uncertainty of the quantity of the co●● , and of the summe for it , yet this is a good agreement . so where one le●● a close , rendring twelve pence of rent for every acre , notwithstanding the uncertainty of the rent , yet it is a good agreement , for it may be reduced to a certainty , by measuring of the corn or ground . alien . alien , is derived from the latine word alienus ▪ , and according to the etymològy of the word , it signifies one born in a strange countrey , under the obedience of a strange prince . such an one is not capable of inheritance within england . . because the secrets of the realm may thus be discovered . . the revenues of the realm ( which are the sinews of warre , and ornament of peace ) shall be taken , and enjoyed by strangers born . . this will tend to the destruction of the realm . he cannot have any reall or personall ●ction concerning land , unless he be an alien merchant friend , and then he may have a lease for years , of houses , warehouses , and conveniences for habitation and merchandizing , and if he be disturbed in the possession of them , he may maintain actions of trespass . and if he be naturalized by act of parliament ▪ then he is not accounted in law alienig●●a , but ●●●g na , as a natural born subject , and may purchase and maintain actions as englishmen . alms . alms , and relief of poor people , being a work of charity , is accounted in law divine service , for what herein is done to the poor for gods sake , is done to god himself . if it were ordained that no alms should be given for no necessity , this custom and statute were void , because no generall custom of statute must be directly against the law of god. nevertheless , the statute in the year of king ed. . whereby it is ordained . that no man under pain of imprisonment , shall give any alms to any vagrant beggers that may well labour , that they may so be compelled to labour for their living , is a good statute , for it observeth the intent of the law of god. amerciament . amerciament in latine is called misericordia , because it ought to be assessed mercifully , and this ought to be moderated by affeerement of his equals , or else a writ de moderata misericordia doth lie , or because the party which offendeth putteth himself on the mercy of the king . a fine is alwaies imposed and assessed by the court , but amerciament by the countrey . ancestor . ancestor is derived of the latine word 〈…〉 sor , and in law there is a difference between antecessor and predecessor , for antecessor is applied to a naturall person , as i. s. & antecess●●●s ●ui ; but predecessor is applied to a body politique , or corporate , as epis. lond. & predecessores . s●● re●●●r de d. & predecessores sui . an , iour . an , iour , the law in many cases hath limited a year and a day to be a legall ●and convenient time for many purposes ▪ the wife or heir hath a year and a day , to bring an appeal of death . if a man be wounded or poysoned , and dieth thereof within the year and the day , it is felony . a protection shall be allowed but for a year and a day , and no longer : a year and a day to remain in ●●ti●●t ●emes●e to enfranchise a villain . an 〈…〉 , and waste , is a forfeiture when a man hath committed petty treason or felony , and hath ●●nds which he holdeth of some common person ▪ the king in detestation of the crime , might by the prerogative cause the trees to be digged up , the houses to be ●ased and pull'd down , and the pastures and meadows to be plowed up : but the land ▪ so desaced were to escheate to the lord , and the king had no other benefit then before , ●i●●o● the good of the common-wealth it was provided by magna charta , chap. . that instead of such spoil , the king should have the lands of such ●●lon for a year and a day , and afterwards the lord to have it without such spoil . this statute of prerogativa regis , made in the year of e. . is thought by stamford and others to be in force as to this point , and hath made them conceive erroneously , but that statute being repealed by an act in ●● e. cap. . the act of magna charta , as to this is still in force . the king shall not have a●●●●● diem , & vas●am of lands holden in gavel ▪ kind , where the father is hanged : but if he be outlawed and ab●ured for felony , he shall . some hold that the custom of kent , the father to the bow , the son to the p●●●● , must be taken strictly ; for if he be attainted and die in prison , his lands shall es●hea● . if one be arrested for selony , and breaks the arrest ; so that in pursuit of him he is killed , because he would not otherwise be taken ; the king in this case shall have the year , day , and waste . annates . annates , seemeth to be all one with first-fruits , because the rate of the first-fruits paid of spirituall things is after one years profit . annuity . annuity , is a yearly payment of a certain sum of money granted to another in see for life or years , charging the person of the grantor onely . for it , no action lieth , but onely a writ of annuity against the grantor or his heirs , if the grantor grant for him and his heirs . if one grant to another an annuity pro consilio impendendo ; if he will not give counsell , the other may stay the annuity , because he cannot have the thing , for which he grants the annuity ; it is a conditionall grant , though there be not any word of a condition . if one grant to one learned in the law , or in physick , an annuity for terme of the life of the grantee pro consilio impendendo to the grantor ; and the grantor dieth , the annuity shall not cease by this , but the grantee shall hold for ●erm of his life , and yet it was granted , and was executorie for the counsell , but no counsell may be given to the grantor when he is dead , so that by the act of god , the grantee is discharged of giving counsell . if an annuity be granted pro consili● impenso & impendendo , and the grantee commit treason whereby he is imprisoned , so that the grantor cannot have access unto him for his counsell , yet nevertheless the annuity is not determined by this non feasance , yet it was the grantees act and default to commit the treason , whereby the imprisonment grew , but the law excuseth him ; because the not giving counsell was compulsory , and not voluntary in regard of the imprisonment . if i grant to i. s. an annuity of ten pounds a a year pro consilio impenso & impendendo ; if i. s. be a physician , it shall be understood of his counsell in physick , if a lawyer of his counsell in law. an annuity is granted pro consilio impenso , & impendendo to one pl●mer attorney , there is contention between the grantor and a stranger , and the attorney dat consilium adversario concess●ris , sed non est requisitus ad dandum consilium per concessorem sibi in illa materia , whether this were against the effect and intention of the former grant , and it was held no , but the annuity shall continue . appeal . appeal cometh of the french word appeller , that signifieth to accuse or appeach , it is an accusation , or of appeller to call , because appellans vocat reum in judicium , he calleth the defendant into judgement . there are three sorts of appeals . . of wrong to his ancestor , whose heir male he is , and that is only of death . . of wrong to the husband , and is by the wife only of the death of her husband to be prosecuted whilest she is a widow . . of wrongs done to the appellants themselves , as robbery , rape , and mayhem . the law prohibireth not counsell in an appeal , as it doth in an indictment , became there is no appeal brought , but that of common presumption , the appellant hath great malice against the appell●e . as when the appeal is brought by the wife of the death of her husband , or by the sonne of the death of his father , or that an appeal of robbery is brought for stealing of goods : but when that man is indicted at the kings suit , the king intendeth nothing but justice with favour . if he that is attainted of treason or felony be slain by one that hath no authority , in this case his eldest son can have no appeal , for he must bring his appeal as heir ; which being ex provisiene hominis , he loseth ● ▪ by the attainder of his father , but his wife shall have an appeal , because she is to have her appeal as wife , which she remaineth , notwithstanding the attainder , because maris & faeminae conjunctio est de jure naturae , and therefore ●s indissoluble . the reason why a woman hath appeal de morte viri , is because by his death she is thought less able to live and maintain her self ; if she marry again , her appeal is determined , though the new married husband be dead within a year and day after his death that was slain . the appeal must be within the year and a day after the deed , cook rep. cases of ap. & indict . it shall be brought within a year after the stroke , and not the death , stamford . an appeal of mayhem is in manner but a trespass , for he shall recover but damages , yet the indictment shall say quod felonete mahemavit . appendant . appendant is any inheritance belonging to another that is superiour or more worthy . the thing appendant ought to agree with the nature and quality of the thing unto which it is appendant , a leet cannot be appendant to a church or chappel , for they are of several natures ▪ a thing corporate cannot be appendant to a thing corporate , nor a thing incorporate , to a thing incorporate , but a thing incorporate as an advowson , to a thing corporate as a mannour , or a thing corporate , as land , to a thing incorporate , as an office. apprentice . apprentices , quasi apprehensores , apprendre to learn , are such persons who do serve a certain time , ( for the most part seven years ) by pact for the learning of any art , it is from the french word apprendre , which signifies to learn in any art , thence they have apprentisage , and we apprentiship , as also apprentisage , davocas plaidans ▪ for the apprentiship of the lawyers , and thence with us some are called apprentices to the law , and sometime apprentices to the bar , who are those who are permitted salutare cancellos fori vel barr●● there publickly to plead , in the time of h. . fortescue saith , there were in the ins of court and chancery , at the least of them , which prodigious number may be admired , since in the parliament rolls , ed. . rot. . in dorso : it is there ordained in his verbis , de attornatis & apprenticii● , d. rex injunxit i. de metingham , & sociis suis , quód ipsi per eorum discretionem provideant & ordinent certum numerum de quolibet comitatu de melioribus & legalioribus , & libentiùs addiscentibus , secundum quod intellexerunt quòd curiae suae & populo de regno melius valere poterit , & majus commodum fuerit . et quod ipsi quos ad hoc eligerent curiam sequantur , & se de negotiis in eadem curia intromittant , & alii non . et videtur regi & ejus concilio , quod septies viginti sufficere poterint , apponant tamen praesati iusticiarii plures si viderint esse faciendum , vel numerum anticipent , & de aliis remanentibus fiat per discretionem eorundem iusticiariorum , &c. these apprentices of law were prohibited to come to the parliament at coventry by henry the fourth , in the sixth year of his reign , as appears by a writ directed to a sheriff thus , nolumus autem , quòd tu seu aliquis alius vicecomes regni nostri praedicti , aut apprenticius , five aliquis alius homo ad legem aliqualiter sit elect , &c. therefore this parliment was called parliamentum indoctum and had in its design nothing more then the ruine of the church and laws . apportion . apportion , this word cometh of the word portio , which signifieth a part of the whole , and apportion signifieth a division or partition of a rent or common , and is either , . voluntary , . or by constraint of law. appurtenant . appurtenant and appendant are things that by time of prescription have belonged , appertained , and are joyned to another principal thing , by which they pass and go as accessary to the same special thing by vertue of these words pertinentiis , as lands , advowsons , commons , waies , courts to a mannour house , or office. appendants are ever by prescription , appurtenants may be created in some cases , at this day . arbitrement . arbitrement , it is so called , because the judges elected therein may determine the controversie not according to the law , but ex boni● viri arbitrio , or else because the parties to the controversie have submitted themselves to the judgment of the arbitrators , not by compulsory meanes , but ex libero arbitrio , out of their own accord . it is a power given by the parties litigant to some to hear and determine some matter in suit between them , to whose iudgment they bind themselves to stand . there is a diversity between it and concord , that an arbitrement may be pleaded , although the time of performance of it be not yet come , but a concord ought to be executed , and satisfied before the action brought , or it is no good plea. five things are incident to an arbitrement . . matter of controversie . . submission . . parties to the submission . . arbitrators . . rendring the award , which may be either . by word or , . by writing . arraign . arraign , a prisoner is said to be arraigned , when he is indicted , and put to his tryal . one arraigned upon an an indictment of selony or murder shall have no counsell , but the judges shall so instruct him in all things that pertain to the order of pleading , that he shall run in no danger by his mispleading , to arraign an assise to prosecute by such a writ . arrest . arrest , is derived as some think of the french word arrester to stay , or from the greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , a decree or sentence of the court. arrest is when one is taken and restrained from his liberty by power or colour of a lawfull warrant . arrest signifieth properly , a decree of a court , be vertue of which a man is arrested , &c. if a man be struck , and it is doubtfull whether he will die , a man may arrest him which struck him , untill it be known whether he will die or no. the person of a b●ron which is a peer of the parliament , shall not be arrested in debt or trespass for his body , for none o● the nobility which is lord of the parliament , and by the law ought to betryed by his peers , shall be arrested by is body . the law intends that they a●hst the king with their counsell for the common-wealth , and keep the realm in safety by their prowesse and valour . and they are intended to have sufficient in lands whereby they may be distrained , this priviledge extends also to women that are countesses by birth or marriage , if those by marriage loose not that dignity by intermarriage with one under the degree of nobility . they shall not therefore be put in juries , although it be the service of the countrey . an arrest in the night is lawfull , for the officer ought to arrest a man when he can be found , for otherwise peradventure he shall never arrest him , quia qui male agit odit lucem , and if the officer do not arrest him when he findeth him and may arrest him , the plaintiff shall have an action upon the case , and recover all his loss in dammages . no man shall be arrested upon the sabbath day by a new act , &c. assault . assault , is from the latine word assultus , which denoteth a leaping or flying upon a man , so that it cannot be performed without the offer of some hurtfull blow , or atleast some fearfull speech , and therefore to rebuke a collector with foul words , so that he departed for fear without doing his office , was taken for an assault . to strike at a man though he were neither hurt nor hit with the blow , was adjudged ●n assault lib. ass. plea. . assault doth not alwaies imply necessarily a hitting and therefore in trespass , for assault and battery , a man may be found guilty of the assault , and yet excused of the battery . ed. , . and ed. . . assembly . assembly , unlawfull , is where above the number of two do assemble to do some unlawfull act . assise . assise sayeth littleton , est nomen aequivocum , sometimes it is taken for a jury , for in the record of an assise , the word is assisa venit recognitura , &c ▪ is the same as iurata venit recognitura , and in a writ of right the tenant putting himself on god , and the great assise is the same as upon god and his countrey , viz. the jury , but most properly it is taken for a writ or action , and it lieth where any man is put out of his lands , tenements or any profit to be taken in a certain place , and so disseised of his freehold . at the common law assise was remedi●m maxime festinum , for in this the defendant shall not pray the aid of any but the king , also maxime beneficiale , for in no action at the common law a man shall recover land it self , and damages , but only in an assise against the disseisor . there be four assises in an assise of novell disseism , of mort dancester , of darreine presentment , and of utrum . assise cometh of the latin word assideo , which is ●o associate or sit together . assumpsit . assumpsit , ( of the lat. assumptio ) is a voluntary promise made by word , by which a man assumeth and taketh upon him to perform or pay any thing to another . it holds good in law , when there is something laid down in consideration : for a promise without consideration will not bind in law to performance , but is called nudum pactum ex quo non oritur actio . attachment . attachment , signifieth a taking hold , or apprehending by commandement of writ , from the french word attacher . it differs from an arrest or capias , for that proceedeth out of the inferiour courts by precept and attachment out of the superiour courts . by precept or writ , an arrest is only upon the body of a man , an attachment is more general , and extends to the taking of goods . kitchin saith a man may attach a cow. attainder . attainder , is when a man hath committed treason or felony , and after conviction judgment hath passed upon him , he is then said to be attainted , and such attainder hath these effects , that his blood is so stained and corrupted thereby , that he is said to be convicted when the jury hath found him guilty , but not attainted till judgment . if a man doth adhere to the kings enemies , and die , or be slain before a tainder , he shall forfeit nothing , nor shall his blood be corrupt . this was the case of iack cade , who being slain in open rebellion could no way be punished , or forfeit any thing , and therefore in the th year of h. . cap. . was attainted by parliament ; before that time it was rare to attaint a man after his death , but since frequent . . his children cannot be heirs to him , nor any other ancestor . . if he were noble and gentle before , he and all his children and posterity are by his attainder made base and ignoble in respect of any nobility or gen●ry which they had by their birth . . this corruption of blood is so high , that regularly it cannot be possibly salved but by authority of parliament . the kings letters patents will not do it . attaint . attaint , is a writ that lieth where a false verdict is given in court of record upon an issue joyned by the parties and of antient writers it is called breve de convictione , and is derived of the participle tinctus , or attinctus , because if the p●rty jury be attainted of a false oath , they are stained with perjury , and become infamous for ever , for the judgment of the common law in the attaint importeh eight great and grievous punishments . . quòd amittat liberam legem in perpetuum , he shall never be received to be a witness , or of any jury , nor can he be champion in a writ of right . . quòd fo●is faciat omnia ▪ bona & catalla sua . . quòd terrae & tenementa in manus domint regis capiantur . . quòd u●●res & liberi extra domus suas ejicerentur . . quòd domus suae prost●entur . . quòd arbores suae extirpentur . . quòd p●ata sua arentur . . quòd ●o●●●ra sua carceri mancipentur . it is a substantive made ( say some ) of the french verb atteindre , id est , asse qui or attingere , because he is catched and overtaken , rather of the french teindre , in latin ●in●ere to stain , dye , colour , unde gal. teint latin tinctus , as we say , he is attainted , or tainted of treason , i. e. stained . attorney . attorney , is an antient english word , and signifieth one that is set in the turn , stead , or place of another . of these some be private and some be publick , as attorneys at law , whose warrant from his ●laster is , ponet ●●●o su● talem attornatum suum , which setteth in his turn or place , such a man to be his attorney . those that be private are sometimes by writing , sometimes by word , to make or take livery or possession , to make claim to lands , to enter to sue , &c. and it is a rule , that where the attorney doth less then the authority and commandment , all that he doth is void , but where he doth that which he is authorized to do , and more , it is good , for so much as is warranted , and void for the rest . if a man be disseised of black acre , and white acre , and a warrant of attorney is made to enter into both , and make livery , and the attorney entereth only into one and maketh livery , it is void for all . so if a letter of attorney be made to deliver seisin upon a condition , and he doth it without a condition , it is void , because he did less then his authority . but if one have authority to deliver seisin to i. s ▪ and he do it to i. s. and i. n. that is good as to i. s. because more then his authority . attournement . attournement , is an agreement of the tenant to the grant of the seignory or of a rent , or of the donee in tail , or tenant for life or years , to a grant of a reversion , or remainder made to another . it is an antient word of art , and in the common law signifieth a torning or attorning from one to another , we use also attornamentum as a latin word , & attornare to attorn . a grant to the king , or by the king to another , is good without attornment by his prerogative . also where one doth grant a rent , reversion , remainder , service , or seignory to another by way of devise , by a last will and testament . so when the thing granted doth pass by way of use , as where one l●vieth a fine , bargaineth and selleth , hath inrolement or covenants to stand seised of a reversion , &c. to the use of another there needeth no attornment ▪ conusee of a fine , of a seigniory , rent , reversion , &c. before attornment , cannot maintain an action of wast , nor a writ of entry ad communem legem , or in casu promis●ae , or in consimili casu , upon the alienation of the tenant escheate upon the dying of the tenant without heir , or ward upon his dying his heir within age therefore by force the ingrosment of the fine , if it be of a seigniory , he may compell the tenant to attorn by a writ called a per que servitia , if of a rent , by a writ called a quem redditum reddit , and if of a reversion , or remainder of a tenement for life , then by a writ called a quid iuris clamat . award . award of the french word agarder , which is to decide or judg . which is either . interloqu●tory . . or definitive . avowry . avowry , is a manifestation or maintenance of a thing formerly done , and cometh of a french word advouer , and it is used in our law when one hath taken a distress for rent or other things , and he who is distrained sueth a replevin , and he that took the distress doth justifie . auxilium ad filium militem faciendum , & ad filium maritandum , is a writ directed to the sheriff of every county where the king or other lord hath any tenants to levy of them reasonable aid towards the knighting of his sonne at years or the marriage of his daughter at , at the common law it was not limited , yet ought to have been rationabile auxilium , but now it is limited to s. for a knights fee , and so for l. per annum in soccagio . ayde . ayde , is where a particular ●●●●rietor is impleaded and not being able to defend the thing for which he is impleaded , he prayeth ay●e of some better able , and it is two waies . . in a plea reall teners ●●tit auxilium de a s. sine quo respond ●e n●●●otest . in a plea 〈…〉 all , and then the defendant pet● auxilium ad manulerendum exititium . b. bail . bail or ballium is safe keeping or protection , and thereupon we say , when a man upon surety is delievered out of prison , trad●tu● in ballium , he is delivered into bail , i. e. into their ●●●● keeping , or protection from prison , it is derived from the french word baille● , and that also cometh of the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , they both signifie to deliver into hand , for he that is bailed , is taken out of prison , and delivered into the hands of his friends . bailement . bailement , is a delivery of things , writings , goods , or stuff to another . the intendment of law in cases of bailement is that it resteth indifferent , whether he be guilty or not untill tryal . bailiff bailiff , this word baille ( as some say ) cometh of the french word bailiff in latin bailivus , but in truth , bailie is an old saxon word , and sigfieth a safe keeper or protector , the sheriff that hath custodiam comitatus , is called balivus , and the county baliva sua , when he cannot find the desendant , he returned , non est inventus in bali●● mea . bank . bank , is a saxon word , and signifieth a bench , or high seat or a tribunal , and is properly applyed to the justices of the court of common pleas , because the justices of that court sit there in a certain place , and legall records term them iusticiarii de ban●● . another court there is called the kings bench , both because the records of that court are stiled coram rege , and because kings in former times have often personally sate there . bargain . bargain , and sale is when a recompence is given by both the parties to the bargain . by it lands may pass without livery of s●isin , if the bargain and sale be by deed indented , sealed and in●olled . a warranty made upon the concluding of a bargan and sale doth bind , but not if the warranty be made after the bargain concluded . if a man sell unto one certain cloth , and warrant it to be of such a length , and it is not of that length , he which buyes the cloth , may have an action of deceit against him , but if the warranty be made at some other time after the bargain , he may not have such a writ , unless the warranty be in writing . the grant or bargain and sale of the profits of land is the grant of the land it self , for the profits of the land , and the land it self are one and the self same thing in substance , but one may lease his park , excepting the wood and underwood , and his mannor , reserving the warren , but the soil of the wood and warren shall go to the l●ssee . if i lease a farm , excepting the wood , or for so much of this farm as is woodland , and may by the name of a wood be demanded in a precipe the soil it self is excepted , but otherwise it is of pasture or arrable ground , which hath wood growing upon it . cook l. . iors case , & l. . laifords case . barre . barre , is a word common as well to the english as to the french , of which cometh the noun a barre barra . it signifieth legally destruction for ever , or taking away for a time of the action of him that hath right , it is called a plea in barre when such a barre is pleaded . barretor . barretor , is a common mover and exciter or maintainer of suits , quarrells or parts either in courts or else where in the countrey . in courts of record or others , as in the county , hundred , or other inferiour courts . in the county in three manners . . in disturbance of the peace , in taking or keeping of possessions , or lands in controversie , not only by force , but also by subtilty . . and most commonly in suppression of truth and right . . by false inventions and sowing of cal●mniations , rumours ▪ and reports , whereby discord and disq●iet may grow between neighbours . a common barretor , or barre offender , is a common quareller , mover , or maintainer of quarrels , either in the court or countrey . some derive it of the french word barrateur which signifieth a deceiver , others of the latin word baratro , which signifieth a vile knave or unthrift , some of two legall words barra , which signifieth the barre in courts , where causes are debated , and rettum , which signifieth a crime or offence . he is seminator litium , & pacis domini regis perturbatur . bastard . bastard , is he that is born of any woman not ma●●ied , so that his father is not known by the order of the law , and therefore by the law he is sometimes called filius nullius , the son of no man , sometimes filius populi the sonne of every man. cui pater est populus , pater est sibi nullus & omnis . cui pater est populus , non habet ille patrem . the civil law doth legitimate the child born before matrimony , as well as that which is born after : and giveth unto it succession in the parents inheritance . but to the child born out of matrimony , the law of england alloweth no succession the civilians say , matrimonium subsequens tollit peccatum prius ; matrimonium subsequens legitimos sacit quoad sacerdotium ; ( because they are legitimate by the canon law ) non quoad successionem , propter consuetudinem regni , quae se habet in contrarium . the bishops were instant with the lords , that they would consent , that all such as were born asore matrimony should be legitimate , as well as they that be born within matrimony , as to the succession of imheritance ; because the church accepteth such for legitimate . et omnes comites & barones una voce responderunt , nolumus leges angliae mutare , quae huc usque usitatae sunt & approbatae : and all the earls and barons with one voice answered , that they would not change the laws of the realm , which hitherto had been used and approved . if a man take a wise , which is great with child by another , which was not her husband ; and after the child is born within the espousals , then it shall be said the child of her husband , though it were but one day after the espousals solemnized , according to that , pater est quem nuptiae demonstrant , for whose the cow is ( as it is commonly said ) his is the calf also . there was an act made ann . . iacobi regis , to prevent the destroying and murthering of bastard children , and it was continued . . caroli c. . if any women be delivered of any issue , which by the laws of this realm should have been a bastard , and shall endeavour by drowning , or secret burying , or any other way by her self or others to conceal the death thereof , whether it were born alive or not , the mother so offending shall suffer death as in case of murder , except ●he can prove by one witness at least , that the same child was born dead . a bastard killeth his mother , this seemeth p●●●y treason , for the mother is certainly known , but a bastard shall not be bound , though the father were a bondslave , for the law doth not acknowledg any father in this case . a bastard having gotten a name by reputation , may purchase by his reputed or known name to him and his heirs , although he can have no heir , unless it be the issue of his body . a man makes a lease to b. for life , remainder to the eldest issue male of b. and the h●i●● males of his body , b. hath issue a bastard son , he shall not take the remainder , because in the law he is not his issue , for qui ex damnato ●●i●● nascuntur int●r liberos non comput●ntur . the ●ust●ces of peace shall commit ●ewd women which have bastards to the house of correction , there to be punished and set on work , during the term of one whole year , there to remain till she can put in good sureties for her good behaviour not to offend so again . battery . battery , is the wrongfull beating of one ; but if a man will take away my goods , i may lay my hands upon him and disturb him , and if he will not leave , i may beat him , rather then he shall carry them away , for that is no wrongfull beating menacing beginneth the breach of peace , assaulting increaseth it , and battery accomplisheth it . buggery . buggery , committed with manking or beast is selon● without benefit of clergy , it being a sin against god , nature , and the law , and in antient times such offenders were to be burned by the common law. one describeth this offence to be carnalis c●upula cont●a 〈…〉 , & haec vel per confusionem sp●ci●●um , sc. a man or a woman with a bru●t beast , vel 〈…〉 , sc. a man with a man , a woman with a woman , see levit. . , . burgage . burgage , in latin burgagium , is derived of burgus a town , and it is called a burgh or borough because it sendeth burgesses to parliament . the termination of this word burgagium signifieth the service , whereby the burgh is holden . burglary . burglary , is usually desined the night-breaking of a house , with an intent to steal or kill , though none be killed , nor any thing stolen , and so it is of a stable , pa●cell of a house , but not of breaking ones close to kill him , nor ones house , if it be but to beat him , nor though it may be to kill him , if it be in the day time . it may be burglary if one enter into a house and break it not , as if he come in at the chimney , or by a false key , and if he break the house , though he enter not . richard vaux brings an appeal of burglary , against thomas bro●k , and declares that the defendant domum mansionalem praedictam richardi vaux felonice & burgaliter fregi● , the declaration was found insufficient because of this word burgaliter , but it ought to be burgulariter , or burguraliter , and the offence is called burglary or burgulary , and not burgale , burglariter est vox artis , as sel●nice , m●r●ravit , rapuit ex ambium , wa●rantizare , and divers others , which cannot be expressed by any periphra●i ▪ or circumlocution . if a man have a mansion house , and he and all his family upon some accident are forth of the house part of the night , and at the same time , one come and breaks the house to commit 〈…〉 , this is burglary , although no man be there , for this is domus mansionalis . so if a man have two house● , and inhabit sometimes in one , and sometimes in another , and ha●h sevants in both , and in the night when his servants are forth , the house is broke by thieves , this is burglary . all indictments of burglary are quòd 〈◊〉 fregit , and the night to this purpose begins at sun setting , and continueth to the sun rising . burglar shall not have his clergy . burgh english . burgh english , or borough english , is a custom in some antient borough , that if a man have issue divers sonnes , the youngest sonne shall inherit , and have all the lands and tenements that were his fathers within the borough : the reason of this ( as littleton saith ) is because the youngest is presumed in law to be least able to shift for himself . if the lands of the nature of borough english be let to a man and his heirs during the life of i. s. and the lessee dieth , the youngest sonne shall enjoy it . a man seized in see of lands in burgh english , after the stature of . ● . makes a feofment to divers persons in fee , to the use of himself and the he●rs males of his body begotten , secundum cursum communis legis , and after dieth seized according , ha●ing issue two sons , the eldest enters and holds out the younger ; yet the youngest shall have it by descent , notwithstanding the words before . of land in borough english , or gavel ▪ kind , the son cannot endow his wife ex assensu patris , because by possibility , he shall not continue heir : the father shall not have the ward of his son and h●ir apparant of such lands holden by knights service , because by possibility he shall not continue heir . c. capite . capite , is a tenure that holdeth immediately of the king , as of his crown or person , that is , as he is king. a man may hold of the king , and yet not in capite , by means of some honour , castle or mannor belonging to the crown , whereof he holdeth his land. tenure in chief is so called , per excellentiam , because as the head is the principall part of the body , so this is the highest and most honourable service in the law , because it is done to the chief head of the realm , and takes its original creation by the king himself . the tenures in chief began in antient time , upon the grants of kings to defend their persons , and their crown and regality , against enemies and rebels . the king at this day may make a tenure of him in chief ; if he reserve this to his person , and as a tenure in gross ; but if he reserve the tenure as of his mannour , or honour , or castle , and not about the person of the king , then it is not ●e●●re ●● capite . castle . castle , no subiect can build a castle or house o● strength imbattelled , or other fo●tress d●●e●●ible ▪ without the l●cense of the king , for the dange● which might ensue , if every man at his plea●u●e might do it . challenge . challenge , is a word common as well to the english as to the french , and sometimes signifieth to claim , sometimes in respect of revenge , to challenge into the field : sometimes in respect of partiality or insufficiency to challenge in a court persons returned on a jury . challenge made to the jurors , is either made to the array or to the poll ▪ challenge to the array , is where exception is taken to the whole number , as impa●nelled partially ; challenge to or by the poll , is where exception is taken to one or more , as not indifferent . by the common law , the prisoner upon an indictment or appeal might challenge peremptorily thirty 〈…〉 ▪ which was under the number of three juries : 〈…〉 now by the statute of h. . the number is reduced to twenty in petty treason , murder and felony . but by the statute of and ph 〈…〉 and m 〈…〉 ry , the common law is revived ; for a 〈…〉 reason , the prisoner shall have his challenge to the number of . but if he be a lord of parliament , and a peer of the realm , and is to be ●●ied by his peers ; he shall not challenge any of his peers at all , for they are not sworn as other jurors be , but find the party guilty , or not guilty ; upon their faith and allegiance to the king , and th 〈…〉 e judges of the fact , and every of them 〈…〉 atly give his judgment beginning at the low●●t . but a sub●ect under the degree of nobili●y , may in case of treason or felony challenge 〈…〉 as many he can , if he can allege ca 〈…〉 or malice . principall challenges to the poll may be reduced to four heads . . propter honoris respectum , as any peer of the ●●alm o● lord of parliament , for these in respect of honour and nobility , are not to be sworn on juries ; and if neither party will challenge him , he may challenge himself , for by magna charta it is provided , quod nec super cum ibi●●●s , nec super cum mittemus , nisi per legale judi●●um pa●ium suorum , aut per legem terrae . a peer of the realm shall not be impannelled , where any of the commons is to have a tryal . . propter defectum , for want or default , . patriae , as alieus born . . libertatis , as villains or bondmen . . a●nui census , i. e. liberi tenementi ; as if any of the jury impannelled cannot dispend s. by the year of his own freehold . ▪ hundredorum , vicini vicinorum facta praesumuntur s●ire . . propter affectum , for affection or partiality , as if the juror be consanguineus of blood or kindred to either party , this is a principall challenge ; for the law presumeth , that one kinsman doth favour another before a stranger . if either party labour the iuror , and give him any thing to give his verdict , this is a principall challenge ; but if either party labour the jury to appear , and to do his conscience ; this is no challenge at all , but lawfull for him to do it . . propter delictum , for crime , it being a maxime in the law repellitur a sacramento infamis . champerty . champerty , campi par . it is a bargain with the demandant or tenant , plaintiff or defendant , to have part of the thing in suit , i● he prevaile therein for maintenance of ●im in that suit . every champerty is maintenance , but every maintenance not champerty , for champerty is but a species of maintenance , which is the genus . champerters . champerters vel cambi participes , sunt qui per se , vel per alios placita movem , vel movere faciunt , & ea suis sumptibus prose ●uuntur , ad cam●i partem , vel pro parte lucri habenda , stat . anno . ed. . chance-medley . chance-medly , or homicide per in●o●tunium , is when one is slain casually , and by misadventure . without the will of him that doth the act , of this no appeal doth lie . it is fitly so called , for in it men are medled ( or committed ) together by meer chance , and upon some unlooked for occasion , without any former malice . it is corrupted from chaudmelle , which signieth hot or ●suddain debate , rixa in the civil law , whence in scotland chaudmelle is opposed against ●orethought felony , as manslaughter with us against murder , seldens notes upon hengham . if a man casteth a stone , or shooteth an arrow and another that passeth that way is killed ▪ this manner of killing is manslaughter , by misadventure or chance-medly , for which he which killeth shall have his pardon of course , as appeareth by the statute of . ed. . c. . and he shall forfeit his goods in such manner , as he that shall kill a man in his own defence : for the life of a man is a thing precious , and favoured in the law , so that a man which kills another in his own defence , or per infortuntum , without any intent , this is not felony , and yet in such cases he shall forfeit his good ▪ and c●a●tels , for the great regard that the law hath to the li●e of a man. cook rep. cases of execution . but if he that committeth this manslaughter , was doing an unlawfull act , as casting stones in an high-way where men usually pass , or shoo●ing arrows in a market-p●ace , or such like , whereby a man is killed , it is fel●ny at least . change . change , if two parsons of several churches change their benefices , and resign them into the hands of the ordinary to that intent , and the patrons make presentations accordingly , and one of them is admitted , instituted and inducted accordingly , and the other is admitted and instituted , but dieth before induction , the other parson shall not retain the benefice in which he was inducted , for the change is not perfected , being not executed . charge . charge , is where a man granteth a rent issuing out of his ground , and if the rent be behinde , it shall be lawfull for him , his heirs and assigns to distrain , till the rent be paid , this is called a rent-charge . it is called a rent-charge , because the land for payment thereof is charged with a distress . cook on lit. charter . charter , or deed , is so called from the latin charta , quâ scribi solebant . it is called magna charta , not for the length or larger e●s of it , ( ●or it is but short in respect of the charters granted of private things to private persons ) but it is called the great charter , in respect of the great weightiness , and weighty greatness of the matter contained in it , in ●ew words , being the ●ountain of all the fundamental laws of this realm , and therefore it may be said of it , that it is magnum in parvo . the nobles and great officers were to be sworn to the observation of it . magna fuit qu●ndam magnae reverentia chartae . it is the quintessence of the whole bulk of the politicks of our nation , the charter of the peoples right , the hedg of their property , the strength of their security . it hath been confirmed above thirty times , and commanded to be put in execution , and was bought with the blood of our nobility , and english ancestors in those troublesome times of king iohn and henry his son . it is in our books called charta libertatum , & communis libertas angliae or libertates anglis , charta de libertatibus , magna charta . charters of lands are writings , deeds , evidences and instruments , made from one man to another , upon some estate conveyed or passed between them of lands , or tenements , shewing the names , place , and quantity of the land , the estate , time and manner of the doing thereof , the parties to the estate delivered and taken , the wi●●●●●es p●●●ent at the same , with other circumstances . charters are called muniments à muniendo , quia muniunt , ● defendunt haereditatem . the purchaser of land shall have all the charters , deeds and evidences , as incident to the lands , & ratione terrae , that he may the better defend the land himself , having no warranty to recover in value , for the evidence of i● are as it were the smews of the land , and the feoffor being not bound to warranty , hath no use of them . also he shall have all deeds and evidences , which are materials for the maintenance of the title of the land. chattels . chattels , is a french word , and signifieth goods , which by a word of art we call catalla , it signifieth all goods moveable , and unmoveable , except such as be of the nature of freehold , or parcell thereof . some hold that ready money is neither goods nor chattels , nor hawks and hounds , because they be ●erae naturae , dr. cowell ( in his interpreter ) gives this witty reason , why money is not to be accounted goods or chartels , because , saith he , money of it self is not a thing of worth , but by the consen● of men , and so for their easier traffick or permutation ●t things necessary for their life . goods or chattels are either , . personal , as horse , and other beasts , houshold-stuffs , b●●ws , weapons , &c. called personall , because for the most part they belong to the person of a man , or because they are to be recovered by personal actions . . reall , because they concern the reality , a● terms for years o● lands or tenements , wardships . the word goods in the common law comprehends such things as be either with , or with out life , as a horse or b●● . 〈…〉 . bona dividu●tur ●● 〈◊〉 & immobilia , mobilia rursum divid●●tur ●●●● qu● s● movent , ●● quae ab aliis moventia , but by the common law no estate of inheritance or freehold is comprehended under these words , b●●a & catalla . the civil law sometimes puts a difference between moventia & mobilia , understanding by moventia such goods a● actively and by their own accord do move themselves , is horses , oxen , sheep , and cattell , and by mobilia such goods as pas●ively are moveable , or removeable from one place to another , as apparrel , pots and pans , yet regularly and for the most part , by moveables are indifferently understood goods both actively , and pas●ively moveable . immoveables are those goods which otherwise be termed chattels reall ; for that they do not immediately belong to the person , but to some other thing by way of dependancy , as trees growing on the ground , or fruit growing on the trees , or a lease or rent for term of years , but not lands , tenements , or frank-tenement . chevage . chevage , is a sum of money paid by villains to their lords in acknowledgment of their bondage for their several heads , whence it is called chevagium . chevage of the french word chief , as if it were the service of the head , of which bracton ●aith , chivagium dicitur recognitio in signum subjectionis & domini de capite suo , lambert writeth it chivage , but it is more properly written chief-age . clergy . clergy , is defined to be an antient liberty of the church confirmed in divers parliaments . it is when a man is arraigned of selony , and such like before a temporal judg , and the prisoner prayeth his clergy , that is , to have his book , then the judg shall command the ordinary to try if he can read as a clerk in such a book and place , as the judg shall appoint , and if the ordinary certine the judg that he can , then the prisoner shall not have judgment to lose his life . the book was allowed to the clergy , for the scarcity of them to be disposed of in religious houses ; it was allowable in antient times for all offences whatsoever they were , except treason and robbing of churches of their goods and ornaments . but by many statutes made since , the clergy is taken away , for murther , burglary , robbery , purse-cutting * horse-stealing if the indictment be only murdravit , without adding ex malitia praecogitata , the offender shall have his clergy . if he will read as a clerk , he ought to read all the verse , but although he do not read at the beginning , but first spell , and after read , yet he shall have allowance as a clerk. in savorem vitae . fortescue saith , that if a selon ●ail to read , for which he is judged to be hanged , yet in savorem ●i●ae , if he demand a book afterward under the gallows , and read , he shall have the benefit of his clergy . and yet it is to be supposed , he had no ordinary at that time to demand whether he could read , but this case ought to be specially taken , viz. where the selon is judged before the justices of the kings bench , for if he be judged before the justices o● the goal delivery it is otherwise , because the●r com 〈…〉 on ●●●● with the●r session . clergy was allowed to an accessory to the stealing of horses and 〈…〉 , because the sta●ute shall be taken most 〈…〉 , which speak● expressly but of the princi●●ll . although he hath been i●stru●●ed and taught in the goal to know his letters , and to read , this shall serve him for hi 〈…〉 , but the goaler shall be punished for this . clergy is grantable but once , to one person , except he be within holy orders , for such a man may have it often . . h. . c. . and ed. ● . lord stamford . collegium . collegium est societas plurium corporum inter se distantium , & dicitur collegium propriè cum simul habitant , quoniam . . simul colleguntur , & collegium constituitur in ecclesia , vel per privilegium concessum à superiori ●●st ●undatam ecclesiam . . vel sc. à principio ●uit ordinatum quod ecclesia esse● collegiata . . vel sc. longo tempore vi●cerint collegialiter , & simul quasi possessione ●●ll●gii . item ecclesia potest ●ieri collegiata cum consensu episccpi 〈…〉 patroni eliz. . dyer . colour of office , is alwaies taken in the worst part , and signifieth an evil done by pretence and countenance of an office. but virtute officii or ratione officii , by reason of the office , and by vertue of the office , are taken alwaies in the best part , and imply that the office is the just cause of the thing ; and the thing is pursuing the office . if an officer will take more for his fees then he ought , this is done ●●lo●e ●●●●●i sui ; but yet it is not part of his office : and i● i● called extortion , which is worse then robbery ; because that is apparant , and hath the vi● o● o● vice : but this appeareth under the v●●age of vertue ▪ and so is more hard to be avoided , and therefore the more detellable . condition . condition , is a rest ●int o● bridle , annexed to a thing , so that by the not ▪ performance thereof the party to the condition shall receive pre●udice and loss , and by doing of the same , commodity and advantage . if a man give lands to another , and to the heirs males of his body , on condition that if he die without he●r female of his body ; that then the donor shall re-enter ; this condition is utterly void , for he cannot have an heir female , so long as he hath an heir male . if a man morgage his land to w. upon condition , that if the morgagor and f. s. pay ● . ● . at such a day to the morgagee , that then he shall re-enter ; the morgagor dyeth before the day , i. s. payes the money to the morgagee ; this is a good performance of the condition , and yet the letter of the condition is not performed : but if the morgagor had been alive at that day , and he would not pay the money , but refused to pay the same ; and i. s. alone had tendred the money , the morgagee might have refused it . if feofment in see be made upon such a condition , that the feoffee shall not alien his land to any , this condition is void , because when a man is so in●●offed of lands or tenements , he hath power to alien them to any person by the law. for if such a condition should be good , then it should deprive him of all the power which the law gives him , which is against reason : and therefore this condition is void . but if the condition be such , that the ●eo ●ee shall not alien to such a one , naming his name , or any of his heirs , or the issue of such a one , or the like , such conditions are good : yet the king may give land in see upon condition not to alien . cook l. . knights case . & . h. . . confirmation . confirmation , comet● of the verb confirmare quod est firmum facere ; and therefore it is said , that confirmatio omnes supplet defectus , licet id qu●d actum est , ab initio non valuit . it is a conveyance of an estate or right in esse , whereby a voidable estate is made sure and unavoidable , or whereby a particular estate is increased . it is a strengthening of an estate formerly had , and yet voidable , though not presently void . qu●libet confirmatio aut est perficiens , ●rese●ns , aut diminuens . . per●i●iens , as if feoffee upon condition make feo●●ment over , and the feoffer confirm the estate of the second feoffee ; so if disseisee confirm the estate of the disseisor or his feoffee . . crescens , doth enlarge the state of a tenant , as tenant a● will to hold for years , or tenant for years , to hold for life . . diminuens , as where the lord of whom the land is holden , confirms the estate of his tenant to hold by a less rent . confiscate . confis●ate , this word ●ometh from the latin word fiscus , which ( as 〈◊〉 saith ) originally signified an hamper ; but metonymically the emperours treasure , because it was antiently kept in hampers ; and such good● as were forfeited to the emperours treasure , or any offence , were b●na 〈◊〉 , and so do we ca●l those goods that are forfeited to the kings exchequer . ●an appeal of ●●bbery be brought , and the p●aintifi leaveth out some of his goods , he shall not be received to enlarge his appeal ; and because there is none to have his good so left out , the king shall have them as confi●cate , according to the old rule . quod non capit christus , capit ●iscus . conspiracy . conspiracy , the purpose or intent of a man without the act is not punishable by the law ; and although that for conspiracy a man may be punished in the star-chamber ; yet this is by the absolute power of the court , and not by the ordinary course of the law. constable . constable , comes of two old saxon word , kinning , which signifieth king , and stable , stability ; as the stability of the king and kingdom . the common law requireth that every constable be idoneus homo , i. ● . apt and fit for exercise of the said office ; and he is said in law to be idoneus , which hath three things , honesty , science , and ability : . honesty , to execute his office truly without malice , affection , or partiality . . science to know what he ought to do duly . . ability as well in substance or estate , as in body to execute his office , when need is , diligenly , and not through impotency o● indi●ence to neglect it ; for if poor men which live by the labour of their hands , be ele 〈…〉 to this office ; they will rather per●●it felons and other malefactors to escape , and neglect the execu●ion of their office in other points , then intermit their labour , by which their w●●e and children live . the office and authority of high and petty constables remaineth , nowithstanding the death of the king , for their authority is by the common law and not by commission ; so also of mayor● , ●●●liffs in towns corporate , &c. contract . contract , ( called by the civilians acceptilati ) is an agreement between parties concerning goods or land● for money or other recompence : it is called a contract because by covenanting diversae v●luntates in unum contrahuntur . it is a bargain or covenant between two parties , where one thing is given for another , which is called quid pr● q● , as if you sell my horse for twenty shillings , you may keep the horse till the other have paid the money . the want of recompence causeth it to be but nudum pactum , unde non oritur ●●●●● . for if a man make promise to me , that i shall have twenty shillings , and after i ask it , and he will not deliver it ; yet you shall never have any action to recover it , because this promise was no contract , but a bare promise ; but if any thing were given for the twenty shillings , though it were but to the value of a penny , then it had been a good contract . if he to whom the promise is made , have a charge by reason of the promise , which he hath also performed , then in that case he shall have an action for the thing that was promised , though he that made the promise have no worldly profit by it . as if a man say to another , heal such a poor man of his d●sease , or make an high-way , and i shall give thee thus much ; and if he do it , i think an action lyeth at the common law. this word ( pro ) makes a contract conditionall ; as if i covenant to make an estate pro maritagio habendo ; if the marriage take not effect , i shall be discharged of this covenant . so if an annuity be granted , pro consilio impendendo , stop the counsell giving , and stop the annuity ; also if a man grant a way over his land , and pro chimino illo habendo , he granteth to him a rent-charge : if one be stopped , the other is stopped ; so it is in contracts ; as for a hawk to be delivered me at such a day , you shall have my horse at christmass ; if the hawk be not delivered at the day , you shall not have an action for the horse . the infants contract for his meat , apparell , and necessaries is good , if he be of the age of fourteen years . copy-hold copy-hold , is a tenure , for which the tenant hath nothing to shew , but the copies of the rolls , made by the steward of his lords court. this tenure is called a base tenure , because it holdeth at the will of the lord ; it was wont to be called tenure in villenage . the doing of fealty by a copy-holder , proveth that a copy-holder so long as he observes the custom of the mannor , and payeth his services , hath a fixed estate . although in the judgment of the law , he hath but estate for will ; yet custom hath so established and fixed his estate , that by the custom of the mannor , it is descendible to him and his heirs ; and therefore his estate is not meerly ad voluntatem domini , but ad voluntatem domini secundum consuetudinem manerii ; and by keeping the custom he shall inherit the land , as well as he that hath frank-tenement at common law , for consuetudo est altera lex . the stile of a copy-holder imports three things . . n●men , his name . . originem , his beginning . . titulum , his assurance . . his name is , tenant by copy of court roll. . his beginning is , ad voluntatem domini , for at the beginning he was but tenant at the will of the lord. his title or assurance , secundum consuetudinem manerii ; for the custom of the mannor hath fixed his estate , and assured the land to him as long as he doth his service and duties , and performes the custom of the mannor . if a copy-holder be a popish recusant , his copy-hold is forfeit , for his life to the lord of the mannor , if the lord be not re●usant , and if the lord be , then to the king. coroner . coroner , is an antient officer of trust , and of great authority , ordained to be a principall confer vator or keeper of the peace , to bear record of the pleas of the crown . although by the law , the coroner cannot enquire of any felony ; but the death of a man ; yet it hath been said , that in n●●than●●erland they enquire of all felonies ; but this authority they maintain by prescription . if a man be killed or drowned in the arms or creeks of the sea , where a man may see land from the one part to the other , the coroner shall enquire thereof , and not the admirall , because the countrey thereof may well have knowledg . the empannelling of the inquest , and the view of the body , and the giving of the verdict , is commonly in the street in an open place , and in corona populi , but this name rather cometh , because the death of every subject by violence is accounted to touch the crown of the prince , and to be a detriment unto it . the prince accounting that his strength , power , and crown doth consist in the force of his people , and the maintenance of them in security and peace . if a coroner be minus idoneus ad officium illud exequendum , this is a good cause to remove him , for he ought to be the coroner qui melius scia● & possit officium illud intendere . he must have two properties , viz. sufficient knowledg ▪ ability and diligence in execution of his office. sir edward cook in his second part of his instit. c. . saith he should have five q●a●●ics . ● . he should be probus homo . . legalis homo . . of sufficient understanding and knowledg . . of good ability and power to execute his office according to his knowledg . . diligent in the execution of his office , see more there . coroners remain conservators of the peace ▪ within the county where they are coroners , notwithstanding the kings death , for they are made by the kings writ , and not by commission , as justices are , whose authority is determined by the death of the king , for by the commission he maketh them iusticiarios suos , so that he being once dead , they are no more his justices . the statute giveth the coroner thirteen shillings and four pence for taking inquisition super visum corporis . corporation . corporation , is a permanent thing that may have succession . it is an assembly and joyning together of many into one fellowship , brother-hood and mind , whereof one is head and chief the rest are the body . no corporations can be made but by the king , yet his highness may depute this authority to another , for so it cometh originally from the king. covenant . covenant , is an agreement made by deed in writing , and sealed between two persons . an insant ( by the common law ) is not of age to bind it self by covenant , ante annos nubiles , which is twelve years in a woman , and fourteen years in a man-child . covine . covine , cometh of the french word convine , and is a secret assent determined in the hearts of two or more , to the defrauding and prejudice of another . as if tenant for life will secretly conspire with another , that the other shall recover in prejudice of him in reversion , for by this his reversion is taken away . for this conspiracy may very well be said to be covine , since all the parts are therein contained , for it is an unity in the hearts of two , and it is secretly done in respect of a third who is thereby damni●ied , for if it be secret quoad him who is concerned , it is secret within the description . count . count , cometh of the french word conte which in latin is narratio , and is vulgarly called a declaration . the original writ is according to his name breve , brief and short , but the count which the plaintiff or demandant makes , is more narrative and spacious , and certain both in matter and circumstance of time and place , that the defendant may be compelled to make a more direct answer , so as the writ may be compared to logick , and the count to rhetorick . county . county , signifieth as much as shire , both containing a compass or portion of the realm , into the which all the land is divided for the better government thereof , so as there is no land , but it is within some county : there be in england counties , and in wales . court . court , is diversly taken , sometimes for the house where the king remaineth with his ordinary retinue , and also the place where justice is judicially ministred . in times past the courts and benches followed the king , and his court wheresoever he went , which thing especially shortly after the conquest being found very cumbersome , painfull , and chargeable to the people , it was agreed by parliament , that there should be a standing place where judgment should be given , and it hath long time been used in westminster-hall , which king william rufus builded for the hall of his own house . in that hall are ordinarily seen three tribunals , or judges ●ea●s . at the entry on the right hand the common pleas. where civil matters are to be pleaded , specially such as touch lands or contracts . at the upper end of the hall on the right hand , the kings bench , where pleas of the crown have their place , and where kings in former times have often personally sate . and on the left hand sitteth the chancellour accompanied with the master of the rolls , who in latin may be called custos archiv●rum regis , and certain men learned in the civil law , called masters of the chancery , in latin they may be called asses●●●es . there is also another court of special note called the star-chamber , either because it is full of windows , or because at the first all the roof thereof was decked and garnished with gilded stars . the judges of this court are the lord chancellour , the lord treasurer , all the kings majesties counsell , the barons of this land ; and many other courts there are , of which some may fine and not imprison , as the court leet , some cannot fine or imprison , but amerce , as the court-county , hundred , baron , for no court may fine or imprison which is not a court of record : some may imprison and not fine , as the constables at the petty sessions for any affray made in disturbance of the court may imprison but not fine : some courts can neither imprison , fine , nor a merce , as ecclesiasticall courts held before the ordinary , archdeacon or other commissaries , all which proceed according to canon or civil law ; and some may imprison , fine , and amerce , as the case shall require , as the courts of record at westminster , and else where . courts of record are the kings courts , as he is king , those have that credit , that no ameroement can be taken against any thing there entred or done . cursiter . cursiter , they are called cursitors , because they make brevia de cursu , writs of course so called , because they have a setled form prescribed in an antient book , therefore called the register of writs . courtesie of england . courtesie of england , is where a man taketh a wife seised in fee simple or fee tail general , or seised as heir of the tail speciall , and hath issue by the wife , male or female , b● the issue dead or in life , if the wife die , the husband shall hold the land during his life by the law of england . if it be born alive it is sufficient , though it be not heard cry , for peradventure it may be born dumb , and this is resolved clearly in pains case rep. with whom agree fitzherbert and perkins . . for the pleading is that during the marriage he had issue by his wife , and upon the evidence it must be proved that the issue was alive , for mortuus exitus non est exitus , cook on lit. l. . cap. . curtilagium . curtilagium , is a soil or garden spot belonging to a messuage , quasi curta pecia terrae . fairfax . ed. . fol. . if the wife be delivered of a monster , which hath not the shape of mankind , this is no issue in the law , but although the issue hath some deformity in any part of his body , yet if he hath humane shape , this sufficeth . if the issue be born deaf or dumb or both , or be born an idiot , yet it is a lawfull issue to make the husband tenant by the courtesie , and to inherit the wifes lands of such inheritances whereof actuall seisin cannot be gained untill a certain time ( as of rent in fee , in right of the wi●e , untill the day of payment , nor of advowson in gross untill the incumbent die ) of such inheritances the husband shall be tenant by the courtesie , although he be not actually thereof seised during the coverture . consuetudo . this word consuetudo , hath in law divers significations . . it is taken for the common law , as cons●etudo angliae . . for statute law , as contra consuetudinem communi concilio regni edit . . for particular customs , as gavel kind , borough , english , and the like . . for rents , services , due to the lord , as consuetudines & servitia . . for customes , tributes , or impositions , as de novis consuetudinibus levatis in regno , sive in terra sive in aqua . . subsidies , or customes granted by common consent , that is , by authority of parliament , pro bono publico , these be , antiquae & rectae consuetadines . custom . custom , is one of the main triangles of the laws of england , these laws being divided into . . common law. . statute law. . custom . custom is a reasonable act iterated , multiplied and continued by the people time out of mind . of every custom there be two essential parts , time and usage , time out of mind , and continual and peaceable usage without interruption . some say there are three essential qualities of a good custom . . certainty . . reasonablen●ss . . use or continuance . others say , a good custom ought to have four inseparable properties . . a reasonable commencement ( for every custom hath a commencement , although that the memory of man extend not to this , as the river nilus hath a fountain , although the geographers cannot find it ) whence these maximes in law ▪ obtemperandum est consu●tudini rationabili tanquam legi . in consu●tudini●us n●● diuturnit● temporis , sed soliditas rati●nis est consideranda . for if the custom be unreasonable in the originall , no use or continuance can make this good . quod ab initio non valuit , tractu temporis non convalescit . a thing that is void ab initio , 〈…〉 prescription of time can make this good . every custom is not unreasonable which is against the particular rule or maxim ▪ of the posi●ive law , as the custom of gavel-●ind and borough english are against the maxime and descent of inheritance , and the custom of ●●●● , the ●ather to the bough , the s●n to the plow , i● against the maxime of eschea●es , for consuetudo ex certa causa rationabili ●sitata privat communem legem . besides a custom may be prejuciall to the interest of a particular person , and yet reasonable ; where it is for the benefit of the common-wealth in general : salus populi suprema 〈…〉 est● , as custom to make bulwarks upon the land of another for defence of the kingdom , h●n . . dyer . b , and to raze houses in publico incendi● , h. . dyer . b. a custom which is prejudicial and injurious to the common-wealth , and begins only by oppression and extortion of lords , hath no lawfull commencement , but is void : so by littleton fol. . custome that the lord shall have fine of his frank-tenant for marriage of his daughter is held void ; and custome that the lord of the mannor shall detain distress taken upon his demeans untill a fine be made to him for dammage at his will , is also void , eliz. dyer . b. . custom ought to be certain , and not ambiguous , for incerta pro malis hahentur , an uncertain thing may not be continued time out of mind without interruption . . custom ought to have continuance without interruption , time out of mind , for if it be dis●on inued within memory , the custom is gone : consuetudo ●emel reprobata non p●●●si amplius indu●● ; for as continuance makes custom , so discontinuance destroyes it . nihil ●am conveniens natural● aequita●i , quam unum quodque dissol●●●o ligamine qu● ligatum est . . it ought to be submitted to the pr●rogative of the king , and not exalt it self against it ; for prescription of time makes a custom , but nullum tempus o●●urrit regi . if a man hath toll or wreck , or stray by prescription , this extends not to the goods of the king : so prescription to have sanctuary for treason ; or to have ca●a●la selonum , is void against the king ; because that such a priviledge exaltat se in praerogativam regis , hen. . . custom is either , . generall , which is currant through england . that which is used per totam angliam , is common law , & quod habetur consutend● per totam angliam , is not a good manner , to alledge a custom , cook rep. combes case . if any generall custom were directly against the law of god , or if any statute were made directly against it , as if it were ordained , that no alms should be given for no necessity , the custom and statute were void . . particular , is that which belongeth to this or that county , as borough english in many places , gavel-kind to kent , for all the heirs males to inherit alike ; countries have their customes according to the constitution of the place : as in kent north-wales ; because those counties have been most subject to forreign invasions , that every man there may be of power for resistance ; the inheritances for the most part descend in gavel-kind , viz. to every brother alike . there are particular customs also to this or that lordship , city , or town . the custom of the county of buckingham is , and hath been time our of mind , that every swan which hath her cou●●e in any water that rans to the thames within the said county ; if the swan come upon the land of any man , and make her nest , and hath cignets upon the same , he that hath the property of the swan , shall have two of the cignets , and he whose land it is , shall have the third cignet which shall be of least value : this was held a good custom , because the owner of the land suffered them to breed there , whereas he might have chased them out . in london , . if the debtor be a fugitive , the creditor before the day of payment may arrest him to find better surety . . they may there enter a mans house with the constable or beadle upon suspicion of bawdery . . they may remove an action before the major , depending the plea before the sheriffs . these customs in london though against the rule of common law , are allowed eo potius , because they have not only the force of a custom , but also are supported and fortified by authority of parliament . in some places within the county of glocester , the goods and lands of condemned persons fall into the kings hands for a year only and a day , and after that term expired ( contrary to the custom of all england besides ) return to the next heirs . baldwin le pettour , held certain lands in hemingston in suffolk by serjeanty , for which on christmass-day every year before the king of england he should perform one saltus ( that is , he should dance ) one suffletus ( puff up his checks , making there with a sound ) and one bumbulus ( let a crack downward . ) in some countrey an infant when he is of the age of fifteen years may make a feoffement , and the feoffement is good ; and in some country when he can mete an eell of cloth. in som places the widow shall have the whole or half , dum s●la & castra vixerit . sir george farmour claimed by custom in his mannor of torcester in northampton-shire , to have a common bake-house , and that none others should bake to sell there ; and it was adjudged a good custom cook report . case of the city of london . see more there concerning particular customs . custom differeth from prescription , because . custom is common to many , and prescription particular to this or that man. . prescription may be for a shorter time then custom , sc. for five years , or one year or less : as if a fine be duely levied of lands or tenements , and be not gainsaid within five years , this is a barre to all claim for ever . custom is nothing else but 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 as indeed law is no other thing then 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . d. dammage . dammage , in the common law , hath a speciall signification , for the recompence that is given by the jury , to the plaintiff or defendant , for the wrong done unto him . cook on lit. l. . c. . sect . . damnum dicitur à demende , cum diminutione ves deterior fit , cook lib. ● . rep. so costs of suit are dammages to the plaintiff , for by them his substance is diminished . dammage feasant . dammage feasant , is when a strangers beasts are in another mans ground , without lawfull authority or licence of the tenant of the ground , and there do feed , tread and otherwise spoil the corn , grass , woods , or such like . in which case , the tenant , whom they hurt , may therefore take , distrain , and impound them , as well in the night as in the day ; but for rent and services none may distrain in the night season . he that hath the hurt may take the beasts as a distress , and put them in a pound overt , so it be within the same shire , and there let them remain till the owner will make him amends for the hurt : but by the stature of queen mary , the beasts must not be driven above three miles out of the hundred . dean . dean , is derived of the greek word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , that signifieth ten , because he was antiently over ten prebands or canons at the least in a cathedrall church , and is head of his chapter . debt . debt , debts due by obligation , shall be paid by executors before debts by simple contract , and debts by simple contract before legacies . if a man take a woman which is i debted to other persons , the husband and wife shall be sued for this debt , the wife living . but if she die , the husband shall not be charged for this debt after her death ; unless the creditour of the husband and wife recover the debt during the coverture , then , although the wife die , yet the husband shall be charged for to pay this debt , after the death of the wife by this recovery . if a man lease land for term of life to a woman rendring rent , and she taketh a husband , and after the rent is behind , and the woman die , the husband shall be charged by a writ of debt for this rent behind , because that he takes the profit of the land by reason of his wife . by law of the realm debt only ariseth upon some contract or penalty imposed , upon some statute , and not by other offences , as in the civil law , debitum ex delicto . if a tailor make a garment for me , if we be not agreed before what i shall pay for the making , he cannot have an action of debt , otherwise it is for victuals and wine . but the tailor may detain the garment untill he be payed , as an inne-keeper may his guests horse for meat , or he may have an action upon the case , upon an assum fit to pay him so much as he deserves . decies tantum . decies tantum , is a writ , and lyeth where a juror in any enquest , taketh money of the one part or other to give his verdict , then he shall pay ten times as much as he hath received . deceit . deceit . the common law giveth a double remedy against such as endammage others by deceit , viz. either a writ of deceit or an action upon the case . deed . deed , this word in the understanding of the common law is an instrument written in parchmen or paper , whereunto ten things are necessarily incident . . writing . . in parchment or paper . . a person able to contract . . by a sufficient name . . a person able to be contracted with . . by a sufficient name . . a thing to be contracted for . . apt words required by law. . sealing . . delivery . in another place on lit. ( viz. l. . c. . sect . . ) sir edward cook saith , a deed is an instrument consisting of three things , viz. writing , sealing , and delivery , comprehending a bargain or contract between party and party , man or woman . also in goddards case rep. he saith there are three things of the essence and substance of a deed , viz. writing in paper or parchment , sealing , and delivery , and if it have these three , although it want , in cujus rei testimonium sigillum suum apposuit , yet the deed is sufficient ; for the delivery is as necessary to the essence of a deed , as putting of the seal to it , and yet it is not necessary to express it in the deed , that it was delivered . the date of the deed is not of the substance of it , for if it want date , or if it be a false or impossible date , as the day of february , yet the deed is good , for it takes er●●●i by the delivery , and not the day o● the date . the order of making a deed is , . to write it . then to seal to it . and a●ter to deliver it : and therefore it is not necessary , that the sealing o● delivery be mentioned within the writing , because they are to be done after . every deed shall be taken most strongly against the grant●r , and most beneficially for the grantee , and is most strong against the lessor , and most beneficial for the lessee . of deeds some be , . indented , so called , because they are cut to the fashion of the teeth in the top or side , which are either , bipartite , when there be two parts and parties to the deed. tripartite , when there are three parts and parties . quadripartite . quinquepartite . . polls which are plain without any indenting so called , because they are cut even or polled , every deed that is pleaded , shall be intended to be a deed poll unless it be alledged to be indenced . if a deed beginneth , haec indentura , and the parchment or paper is not indented , this is no indenture , because words cannot make it indented . and although there are no words of indenture in the deed , yet if it be indented , it is an indenture in law , for it may be an indenture without words , but not by words without indenting . defeisance . defeisance , is fetched from the french word desaire , that is , de●eat or undo , infectum redd●● quod factum est . default . default , is a french word , and defalta is legally taken for non-appearance in court. there ●● divers causes allowed by law for saving men default , as . by imprisonment . . inundation of waters . . a tempest . . minority , but sickness is no cause of saving a default , because it may be so artificially counterfeited , that it cannot be known . c●●atus ad locum non tutum , non arctatur compare● is a rule in the civil law , as if the plague to there . se defendendo se defendendo , is not matter of justification , because the law intends it hath a commencement upon an unlawfull case . for quarrels are not presumed to grow without some wrongs either in words or deeds ; therefore the law putteth him to sue out his pardon of course , and punisheth him by forfeiture of goods . if a man kill another in his own defence , he shall not lose his life nor his lands , but he must lose his goods , except the party slain did first ussault him , to kill , rob , or trouble him by the high-way side , or in his own house , and then he shall lose nothing ▪ deforce . deforce , deforciare is a word of art , and cannot be expressed by any other word , for it signifieth to withhold lands or tenements from the right owner , a de●oriom dissereth from a disseisor . . a man may dis●cise another without force , which act is called simple diss●isin . . a man may desorce another that never was in possession . demaundant . demaundant , is he which is actor in a reall action , because he demandeth lands . and plaintiff , que●ens in actions personall and mixt quia queritur de injuria , i'enant , i'erens , in reall actions , and defendant desenden● in actions personal and mixt . demaines . demaines , according to the common speech , are the lords chief mannor-place , which he and his ancestors have from time out of mind kept in their own hands , and have occupied the same together with all buildings and houses whatsoever . dominicum de maire of the hand i. e. manured by the hand , or received by the hand , cook on lit. l. . c. . sect . . demurrer . demurrer , cometh of the french word demeurer lat. demorari to abide , and therefore he which demurreth in law , abideth in law , moratur or demoratur in lege . minshew . cook on lit. lib. . cap. sect . . denizen . denizen , quasi deins nee born within the kings ligeance , and thereupon in latin called iudigena , or from donaison donatio , because his freedom is given unto him by the king. denization . denization is three-fold . . absolute , as the common denizations be to them , and their heirs without any limitation or restraint . . limited , as when the king doth grant letters of his denization to an alien , and to the heirs males of his body , or to an alien for term of his life , for ●ujus ●st ●are , ejus est disponere , and this denization of an alien may be effected three manner of waies , by parliament , letters patents , and conquest , as if a king and his subjects should conquer another kingdom as well ante nati as p●st nati , as well they which sought in the field , as they which remained at home , are all denizens of the kingdom conquered . deodand . deodand , is when any man by misfortune is slain by a horse or by a cart ▪ or by another thing that moveth to further the death , then the thing that is cause of his death , and which at the time of his misfortune did move , shall be forfeit to the king , and that is called deodand , and pertains to the kings almoner , for to dispose in alms and deeds of charity . if a man killeth another with my sword , it shall be forfeit as a deodand , for it shall be adjudged my ●ault , that i did not keep my weapon from him , dr. and student . omnia quae moven● ad mortem , sunt deo danda . cook l. . foxleys case . this law concerning deodands , is grounded upon the law of god , exo. . . deraigne . deraigne , cometh of the french word derayer , or deraigner , i. e. to displace , or to turn out of his order , and hereof cometh deraignment , a displacing , or turning out of his order . so when a monk is deraigned , he is degraded and turned out of his order of religion , and become a lay man. detinue . detinue , is a w●it that lyeth against him who having goods and cha●tels delivered to him to keep , refuseth to deliver them again . upon generall acceptance of goods to keep or to keep safely , if the goods be stolen or otherwise perish , the ●a●li . for he that accepts them shall answer for them . ●therwise it is , if he take them upon speciall accep●an●e , to keep them as his own goods . devise . devise , cometh from the french word diviser , id est disperti●i , because those lands or goods which appertain to the divisee , are distributed into many parts , wherefore it is better written divise then devise , or else it may be derived from the french word devise● , i. e. sermo●ina●i , consabulari , so as deviser person testament , is to speak by his testament what his mind is to have done after his decease . if lands be devised to a man to have to him in perpetuum or to him and his a●ligns for ever ; in these two cases the devisee shall have a fee-simple : perkins holds he hath only an estate for the term of his life , for these words ( for ever ) saith he , can extend to none other then the devisee , because no more persons be named in the devise , and the life of man in this respect is said to be for ever with him . but sir edward cook determines i● , that a fee-simple doth pass by the intent of the devisor , but if the devise be to a man , and his assigns without saying ( for ever ) the devisee hath but an estate for life . if a man devise i and to one ● sanguini s●● , that is a fee-simple , but if it be semin● su● , it is an estate ●ail . if a man devise an house furnished , the houshold stuff passeth , but not the wine that is within the house , because by common intendment a house is not furnished by wine . by the common law , if a man devise the third part of his g●●ds to his wife , it shall be so rated as they were at the time or the dea●● of the testator , though a man may not gran●●r give lands to his wife during the cove●●●re , because they are but one person in law ; yet he may devise his lands to his wife , to have in fee-simple , or otherwise , because such device taketh no effect till the death of the devisor , and then they are not one person . the intent of the devisor shall be observed for he shall be accounted in●ps consilii , because that wills are most often made when men l 〈…〉 extremity and want counsell . if a man make divers wills and testaments , yet the last device and will made by him shall stand , and the other are void . if a man of sound memory make two testaments , viz. one testament in the sixth year of our lord the king which now is , and the other testament in the eighth year of the same king , and after the testator languishing in his bed , and being dumb , one man in the presence of his other neighbours delivers him both the testaments , and ●e takes them in his hand , and the other saith unto him , re-deliver unto us that testament which now you will shall stand , and be your last will ▪ and he delivers the testament with the former date , and retaineth the other with him , now the testament which is delivered shall stand , notwithstanding it hath the former date , and was written before the other . if one devise to an infant in his mothers belly it is a good device , otherwise it is by feossement , g●ant or gift , for in these cases there ought to be one of ability to take presently , or other wise it is void ▪ if a man devise land in certainty , as the mannour of dase or white a●re , and he hath no interest nor p●ssession in them at the time of the making the will , and after the devisor doth purchase it , in such case it shall pass to the devisee , for then it shall be taken that his intent was to purchase it , as it is said , ●● h. ● . ● . the device of tenant for term of life or tenant in dower o● corn growing at the time of their death is good . if a man be seised of a house , and possessed of divers heirlooms , that by custom have gone with the house from heir to heir , and by his will deviseth away the heirlooms , this device is void , for the will taketh effect after his death , and by his death the heirlooms by antient custom are vested in the heir , and the law preferreth the custom before the device . so if the lord ought to have a herriot when his tenant dieth , and the tenant deviseth away all his good , yet the lord shall have his herriot for the reason aforesaid . devit . devit , in latin ius , in english right , it is found in the law six manner of waies , viz. . ius recuperandi . . ius intrandi . . ius habendi . . ius retinendi . . ius recipiendi . . ius possidendi . all these severall sort● of rights following the relations of their objects are the effects of civil law. discretion . discretion , is a knowledg or understanding to discern between fal●hood and truth , right and wrong , shadows and substance , equity and colourable pretences , and not to do according to their wills and private affections , for as one ●aith , valu discretio discretionem confundit . discontinuance . discontinuance , is a word compounded of de and continuo , for continuare is to continue without intermission . now by addition of de ( eup●●●i● gratie dis to it ) which is privative , it signifieth an intermission . disparagement . disparagement , is a shame , disgrace , or villany done by the guardian in chivalry , to his ward in chivalry , being within age by reason of his marriage . of such disparagements there be four kinds . the first , propter vitium animi , as an ideot non composmentis , a lunatick : the second , propter vitium sanguinis , as . a vill●● . . burg●nsis , a man of trade , as an haberdasher , or draper , this agreeth with the civil law , patricii cum plebe matrim●nia ne contrahant . . the son or daughter of a person attainted of treason , or felony , albeit pardoned , for the blood is corrupted . . an alien or child of an alien . the third , propter vitium corporis , as . de membris , having but one hand , one eye . . desormity , as to look a squint , a c●ipple , halt , lame , dec●epit , crooked . . privation , as blind , deaf , dumb . . a horrible disease , as leprosie , pal●●e , dropsie . . great and continual infirmities , as a consumption . . impotency to have a child in respect of age , tender years , or for natural disability . . de●owred . the fourth kind of disparagement was propter ●a●●●ram privilegii , a●●o marry the heir to a widow , whereby he should by reason of the bigamy have lost the benefit of his clergy whereby he might save his life , but now this is taken away by the sta●u●e , it must be competens maritagium abs●ue disparagatione . disseisin . disseisin , is a wrongfull putting out of him that is actually seised of a freehold . all lawfull acts which a disseisor or abator doth is good , and therefore i●a disseisor or abator in low a ●●●●● which hath title of dower , this is good and shall bind the disseisee . distress . distress , is a french word , in latin it is caled districtio , sive angustia , because the cattel distreined are put into a streight which we call a pound . it is a maxime in the law , that no distress can be taken for any services that are not put into certainty , as a man may hold of his lord to shear all the sheep depasturing within the lords mannor , and this is certain enough , albeit the lord hath sometime● a greater number , and sometimes a lesser number there , and yet this incertainty being referred to the mannor which is retained , the lord may distrein for this uncertainty . one may distrein any where intra ●●●●um , so that it be not in the high-way nor church-yard . a distress must be , . of a thing , whereof a valuable property is in some body , and therefore dogs , bucks , conie● , and the like that are ferae naturae cannot be distreined . . although it be of valuable property as a horse , ( yet when a man or woman is riding on him ) or an ax in a mans hand cutting of wood and the like , they are for that time priviledged , and cannot be distreined . . valuable things shall not be distreined for rent , for benefit and maintenance of trades ▪ which by consequent are for the common-wealth and are thereby authority of law , as a horse in a smiths shop shall not be distreined for the rent ●●●ing out of the shop , nor the horse in the hos●ry nor the materials in a weavers shop for making of cloth , nor cloth or garments in a taylors shop , nor sacks of corn or meal in a mill , nor in a market , nor any thing distreined for dammage feasant , for it is in the custody of the law. . nothing shall be distreined for rent that cannot be rendred again in as good plight , as it was at the time of the distress taken , as sheaves or shocks of corn cannot be distreined for rent , but for dammage feasant they may . but carts with corn may be distreined for rent , for they may be safely restored . . beasts belonging to the plow averia carucae shall not be distreined , for no man shall be distreined by the instruments of his trade or profession , as the ax of a carpenter , or the books of a scholar , but goods or animalia ●●iosa may be 〈…〉 . if the distress be of utensils of houshold or such like dead goods , which may take harm by wet or weather , or be stolen away , th●●e he must 〈◊〉 them in a house or other pound covert 〈…〉 in the same 〈◊〉 ▪ ● ▪ furnaces , cauldrons or the like fi●●ed to the freehold , or the doors or windows of a house , or the like , cannot be distreined . ● . beasts that escape may be distreined for rent , though they have not been l●vant and cou●●●●nt , he that d●streins any thing that hath life must impound them in a lawfull pound within three miles in the same county . the common law is , men cannot distrein for rent or service in the night , as is adiudged in the of ● . ● . ●●● . distress , but for dammage seasant he may distrein in the night for necessity of the case , for otherwise peradventure he shall not distrein 〈◊〉 , for before the day they may be taken or s●ay out of his land. a grand distress is that which is made of all the goods and chattels which the party hath within the county . divorce . divorce , is so called either a diversa ●●● mentium of the diversity of minds of those that are married , because such as are divorced , go one a diverse way ●rom the other , or from the verb divert which signifieth to return back because after the divorce between the husband and the wife , he returneth her again to her father or other friends , or to the place from whence he had her . there are di●ers causes for which the husband and the wife may be divorced . . causa praecontractus , therefore if a man marry wish a woman precon●●a●te● and hath issue b● her , this issue in law , and in truth bears the sirname of his father : but i● after the husband and the wife be divorced for the pre-contra●t , there the issue hath lost his sirname , and it become a bastard & nullius fi●u●s . . causa frigiditatis , therefore if a man be maried to a woman , and after the● are divorced causa frigiditatis , and then the m●n ta●●●● another wife , and hath issue by her , ye● his 〈…〉 lawfull , because that a man may be habi●●● & 〈…〉 diversis temporibus . s●mp●● p●esu●nt●r p●●●le ▪ 〈…〉 tione ●ili●rum & ●iliatio n●●●●●st 〈…〉 . . causa impubert●●●s , or m 〈…〉 s statis , and ●● this ca●e if two be married 〈…〉 , and after the full age divorce is had between them th●s dissolves the marriage . divorce is two-fold . . a vinculo matrim●nti , causa praecontract●● , causa metus , causa imp●t●mi● seu frig●ditatis , causa a●finitatis seu consanguin●tatis : all which are causes of divorce preceding the marriage . . a mensa & th●r● , as causa adulterii , which dissolves not the ma●riage a vincul● matrimonii , nor bars the wise of dower , for it is subsequent to the ▪ marriage . dominicum . dominicum , is a word sorensale of many significations , amongst the french is called domaniam , amongst the italians demanium , and here with us demaine , which some erroneously call demeane or demesne , as if it came of the french word demesne , i. e. sui ipsius proprium , and not of the latin word dominicum . dominicum , saith bracton , accipitur multiplicit●● . est autem dominicum quod quis habet ad ●inensam : & proprie sunt boardlands anglice i. e. dominicum ad men●am , and are such lands which are properly cultivated for the maintenance of the family , as the demaines of a mannor , &c. and it is of the like signification amongst the french , as appears by ●●●ppinus lib. . ●it . . ● . ● . ●●●●manio regis . prim●● ( inquit ) s●eptris ad●ictum ●uerit in necessarios regiae mensa aulaeque ●●mptus . dominicum is sometime● taken pro terris in vill●●●●ium con●essis as bracton ibidem , item dicitur vill●●●●●ium , quod ●ra●itur ●●llanis , quod quis temp●stivè & intempesti●è resumere possit pro voluntate sua & 〈…〉 . dominicum is sometime● taken pro libero tenemento , and this accptation , as saith bracton , is threefold , viz. . cum quis habet liberum tenementum , & alius usum fructum . . cum quis habet liberum tenementum , & alius custodiam . . cum quis habet liberum tenementum , & alius curam . dominicum generally ( as saith bracton ) is when a man hath lands in see to him and his heirs or to him and his successors . in dominico sei●i●us is when a man hath lands or tenements for life at the least , ita quod assisum novae deseismae habere possit si ejectus fuerit . dominicum bannum is a proclamation or edict by the king. doomes-day . doomes-day , book is so called , because ( as matthew paris saith ) it spared no man , but judged all men indifferently , as the lord in th●●●●●● d● will do ▪ liber ●u 〈…〉 , quem librum librum 〈…〉 lem , anglis ●●●ti●m , angliae 〈…〉 ▪ c●●●●ales , act● publica & angliae ●ust●um 〈…〉 nare placet . dower . dowe● , in the common law , is taken for th● portion of lands or tenements , which the w●● hath for term of her life of the lands or tenemen●● of her husbands after his decease , for the sustenan●● of her self , and the nurture and education of her children . dower is of five sorts or kinds , vix . . dower per legem communem . . dower per consuetudinem . . dower , ex assensu patris . . dower ad ostium ecclesiae . . dower de la plus baile . to the consummation of dower three things a●● necessary , viz. marriage seisin , and the death 〈…〉 her husband . id. ib. & binghams case r●● u●i nullum matrimonium , nulla dos . of a castle that is maintained for the necessary de●e●●e of the realm , a woman shall not be indowed , because it ought not to be divided , and the publick shall be pre●●●●ed before the private ▪ ●●●● o● a castle that is only maintained for the pri●●●e use and habitation o● the owner , a woman shall be endowed . a woman may be endowed of the third part of 〈…〉 of a dove house , of the third part of a pi●●a●y ▪ viz. te●●●● piscem , ●el jactum retis ●ertium . the ●●●est endowment of tythes , is of the thi●d shea● , for what land shall be sown is uncertain . if the wife be past the age of nine years at the death of her husband , she shall be endowed of what age soever her husband be , albeit he were but four years old , for consensus , non concubitus facit matrimonium , and a woman cannot consent before twelve , nor a man before fourteen , yet this inchoate , and imperfect marriage ( from the which either of the parties at the age of consent may disagree ) after the death of the husband shall give dower to the wife , and therefore it is accounted in law after the death of the husband , legitimum matrimonium a lawfull marriage , quoad d●tem . if a man taketh a wife of the age of seven years , and after alien his land , and after alienation the wife attaineth to the age of nine years , and after the husband dieth , the wife shall be indowed , for albeit she was not absolutely dowable at the time of the marriage , yet she was conditionally dowable , vir . she a●tained to the age of years , before the death of the husband ● for by his death , the possibility of dower is consummate . so it is if the husband alien his land , and then the wife is attainted of felony , now is she disabled , but if she be pardoned before the death of the husband , she shall be indowed . by the custom of gavel-kind , the wife shall be indowed of the moity , so long as she keep her self sole and without child , which she cannot wave , and take her thi●ds for her life . for , in that case consuetudo tollit communent legem . and as custom may enlarge , so may custom abridge dower , and restram it to a fourth part . albeit the wife be an years , and the husband at his death was but or years old , so as she had no possibil●ty to have issue by him , v●t seeing the law saith , that if the wife be above the age of years at the death of her husband , she shall be endowed , and that women in antient times have had children at that age , whereunto no woman doth now attain , the law cannot judg that impossible , which by nature was possible . and in my time , a woman about threescore years old hath had ● child , & ideo non definit us in jure , and the husband at such tender years , hath habitum , though not potentiam ; therefore his wife shall be endowed . dower is favoured in respect of the widowhood and desolateness of th● woman whose husband is deceased . it is commonly said , three things are savoured in law , life , liberty , dower . with the civilians , dower may be in goods , and not in lands yet herein england it must be in lands and not in goods . if a woman go away from her husband with an adulterer , and will not be reconciled , she loseth her dower by the statute of westminster . c. . sponte virum mulier fugiens , & adultera sacta . dote sua careat , nisi sponso sponte retracta . drunkenness . drunkenness , for being drunk a man shall forfeit s. or sit six hours in the stocks , for tipling s. d. or sit four hours in the stocks , the constable for not executing it forfeits ten shillings , proof of one witness is sufficient . any one justice of peace hath power to convince an offendor of drunkenness . duresse . duresse , is where one is kept in prison or restrained from his liberty contrary to the order of the law. it is also an exception in pleading to avoid the deed , which a man was enforced to seal to ransome himself from an unlawfull captivity . vide new b. of put verbo duresse . e. ecclesia . ecclesia , this word in the common law , is most commonly used for a place wherein baptism , and the scpulture of mens bodies is celebrated , and fitzherbert saith , by this word ecclesia is meant only a parsonage , and therefore if a presentment be made to a chappel , as ▪ to a church , by the name of the word ecclesia , this doth change and metamorphize the nature of it , and maketh it presently a church . ecclesiastical persons are , . regular , so called , because they live under certain rules , and have vowed three things , true obedience , perpetuall chastity , and wilfull poverty , when a man is professed in any of the orders of religion , he is said to be a man of religion , or religious , of this sort are abbots , priors and the like . . secular , which because they live not under certain rules of some of the said orders , nor are voluntaries , they are for distinction sake called secular , as bishops , deans and chapters , arch-deacons , prebends , parsons , vicars , &c. election . election , is when a man is left to his own free will , to take or to do one thing or another , which he pleaseth . election may be of . things , as i a man should pay a summe of money , or else a hor●e o● a hawk . . of persons , as if he should pay it to i. s. or i. n. . of places , as if he should pay it at lond●n or at lincoln . . of the time , as the first day of april , or the second day of may. in case an election be given of two severall things , alwaies he which is the ●●●●● agent , and which ought to do the first act , shall have the election . as if a man granteth a rent of 〈…〉 ▪ or a robe to one and to his heirs , the g●antor shall have the election , for he is the first agent by payment of the one or delivery of the other . so if a man maketh a lease rend●ing a ●●●t or a robe , the leslee shall have the election causa quâ supra . bu● if i give unto you one of my ho●●es in my stable , there you shall have the election , for you shall be the first agent by taking or seisure of one o● them . and if one grant to another twenty loads of hazill , or twenty loads of maple to be taken in his wood of d. there the grantee shall have election , for he ought to do the first act , sc. to sell and take the same . when the thing granted is of things annuall , and are to have continuance , there the election remaineth to the grantor as well after the day as before , otherwise it is when the things are to be performed vnied vice . and therefore if i grant to another for life an annuity or robe at the feall of easter , and both are behind , the grantee ought to bring his writ of annuity in the disjunctive , for if he bring his writ of annuity for the one only and recover , this judgment shall determine his election for ever , but if i contract with you to pay unto you s . or a robe at the seast of easter , after the feast you may bring an action of debt , for the one or the other . if a wife be indowed ex assensu patris , and the husband dieth , the wife hath election either to have her dower at the common law , or ex assensu patris , if she bring a writ of dower at the common law and count , albeit she recover not , yet shall she never after claim her dower ex assensu , &c. a. covenanteth to pay b a pound of pepper or saffron before whitsuntide , which of them he will pay , but if he payes it not before the same feast , then afterwards it is at the election of b to have his action for which he pleaseth , either of the pepper , or of the saffron . so if a man giveth to another his horse or cow , the donee may take the one or the other at his election , but if it was that he will give it in the future tense , there the donee cannot take the one nor the other , for then the election is in the donor . if a justice of peace directeth his warrant to a constable , to bring the party apprehended before him or another justice , it is in the election of the constable to go to what justice he pleaseth . elegit . elegit , est nomen brevis , sic dictum ab hoc verb● ( elegit ) in eodem comprehenso . emparlance . emparlance , cometh of the french word ( parler ) and signifieth a desire or petition in court , of a day to pause what is best to do . endictment . endictment , signifieth in law an accusation sound by an enquest , of twelve or more upon their oath , and the accusation is called endictamentum , and as the appeal is ever at the suit of the party , so the endictment is alwaies at the suit of the king , and his declaration . to make a good endictment it is necessary to put in the day , year , and place , when and where the felony is done . it ought to be certain also in the matter , as appears . p. . e. f. . where a bailiff was endicted , because he took one for suspicion of felony , and after eum feloni●è , & voluntariè ad largum ire permisit , and did not shew in certain for what suspicion of felony , so when one is endicted that he made an hundred shillings of alchymy ad instar pecuniae domini regis , and alledged not what money it was , groats or pennies : but in case a man be slain , and he is so mangled in the visage that one cannot know him , but the party which killed him is well known , there is no reason he should escape punishment , therefore although no appeal lie against him in this case , yet and endictment lies , and he shall be endicted , quòd interfecit quondam igno tum , the same law is if one be endicted that he stole the goods eujusdam ignoti , or bona cujusdam personae , the reason is , because the endictment is not his which was the owner of the goods , but is the suit of the king , which is to have the goods , is none claim them . an endictment ought to express in certain , as well in what part the mortall wound is , as the profundity and latitude of it , and therefore it was moved that such an endictment , quòd unam plagam mortalem dedit circiter pectus , was insufficient , because altogether uncertain , for it might be in the neck or belly , but it was good law , saith sir edward cook , in youngs case , l. . circiter pectus is uncertain and insufficient amongst the cases of appeals and indictments . endictments of treason and of all other things are most curiously and certainly penned . that endictment is not good which ought to have an argument or implication to make it good , therefore that i● no● a good endictment , if it be qu●d furatus est unum e●uum , and saith not felonice , and yet it is implyed in this word , furatus est , so if for rape the endictment be quòd eam carnaliter cognovit , without saying rapuit , this is not good ; if one be endicted super visum corporis , before the major of london , without adding this word coroner , this is not good , and yet he which is major of london is alwaies coroner ; and therefore it is implyed . if one be endicted quòd feloni●è abduxit unum equum : this is not good without saying coepit & abduxit , for it may be , that it was delivered to him , and so he leadeth him , in which case it is not felony . in the endictment it shall be supposed , that a man such a day and place with force and arms , that is , with st●ves , swords and knives feloniously stole the horse , against the kings peace , and that form must be kept in every endictment , though the felon had neither sword nor other weapon ●i●h him yet this is no untruth in the jury , ●or the form of an endictment is , in ●●iratur ●●● d●mino rege , si à tali die & anno apud talem l●cum vi & armis , viz. gladiis , &c. tal●m e●uum ●alis hominis ●aepit . the twelve men are only charged with the effect of the bill , that is , whether he be guilty of the selony or nor , and not with the form , and when they say billa vera , they say true , as they take the effect of the bill to be , for though there be false latin in the bill , and the jury saith billa vera , yet their verdict is true . an endictment of murder found in this sort that eliz. fuit in pace quousque a. vir . . praesat . eliz. de pin. com . s. yeoman did kill her , is good ; for the addition yeoman must of necessity re●er to th● husband , because a woman cannot be a yeoman , but an endictment quousque alicia s. de pin. in com . s. uxor j. s. spinster is not good against alice s. for there spinster , being an indifferent addition , both for man and woman , must refer to i. s. which is the next antecedent , and so the woman hath no addition . so is an endictment against i. s. serviens i. p. de d. in com . mid. butcher . this is not good , for servant is no addition , and butcher re●erreth to the master , which is the next antecedent . if a man take a coat-armour which hangs over a dead mans tomb in a church , the endictment must be bona executorum of the dead man , but if a gravestone be taken away , the endictment must be bona ecclesiae . enfranchisement . enfranchisement , is when a man is incorporated into any society or body politick . it is a more generall word then manumission , for it is more properly applied to a villain , and therefore every manumission is an enfranchisement , but every enfranchisement is not a manumission . entruder . entruder , an abator is he that entreth into land void by the death of a tenant in fee , and an entruder is he that entereth into lands void by the death of a tenant for term of life or years . equity . equity , is the correction of a law generally made in that part wherein it faileth ; when an act of parliament is made , that whosoever doth such a thing , shall be a felond , and shall suffer death , yet if a mad man or an infant of young years that hath no discretion do the same , they shall be no felons , nor suffer death therefore . there is a general prohibition in the laws of england , that it shall not be lawfull for any man to enter into the freehold of another without authority of the owner , or the law , but yet it is excepted from the said prohibition by the law of reason , that if a man drive beasts by the high-way , and the beasts happen to escape into the corn of his neighbour , and he to bring out his beasts that they should do no hurt , goeth into the ground and fetcheth out the beasts , there he shall justifie the entry into the ground by law. also notwithstanding the statute of edw. . made the year of his reign , whereby it is ordained that no man upon pain of imprisonment should give any alms to any valiant begger , that is well able to labour . yet if a man meet with a valiant begger in so cold weather , and so light apparell , that if he have no clothes he is likely to die , and he giveth him apparell to save his ife , he shall be excused . breaking of prison is felony in the prisoner himself by the statute de frangentibus prisonam , yet if the prison be burnt , and they which are therein shall break prison for the salvation of their lives , this shall be excused by the law of reason , so to save my life i may kill another which assaults me . there was a law amongst the romanes , that every one that scaled the walls in the night should be condemned to death , and one in the night scaled the walls in times of warre to descry the enemies to the romanes , and he by the judgment of the senate was not only discharged of death , but had a great reward for it , and yet he had broken the words of the law , but not the intent , as the sage fathers of the senate judged . escape . escape , is where one that is arrested cometh to his liberty before that he is delivered by award of any justices , or by order of law. if the arrest of him that escaped were for felony , then that shall be felony in him that did voluntarily suffer the escape , and if for treason , then it shall be treason in him , and if for trespass , then trespass . if murder be made in the day , and the murderer be not taken , then it is an escape , for the which the town where the murder was done shall be amerced . if a man be robbed in the day , and the thief escape , and be not taken within half a year after the robbery , the town or hundred shall answer it to the party robbed , if he have made hue and cry . the township shall be amerced for an escape , if it was tempore diurno , although the murder was committed in the town-field , or in a lane , but it seemeth reasonable , that complaint be made to the justices . although the prisoner which escapes be out of the view , yet if fresh suit be made , and he be reprised in recenti insecutione , he shall be in execution , for otherwise at the turning of a corner , or by an entry of an house , or by any other such means the prisoner may be out of view . if a sheriff or baiiiff of a franchise assent , that one which is in execution , and under their custody shall go out of gaol for a while , and then return , although that he return in the time , yet this is an escape , for the sheriff or baiiiff ought to guard him in salva & ar●ta custodia , and the statute of westminster c. . saith quòd carceri mancipentur in ferris . so that the sheriff may keep them which are in execution in iron and fetters , till they have satisfied their creditors . where the sheriff dieth , and one in execution breaketh the gaol , and goeth at large , this is no escape , for when a sheriff dieth , all the prisoners are in the custody of the law , untill a new sheriff be made . if a woman be warden of the fleet , and a prisoner in the fleet marrieth her , this shall be judged an escape in the woman , and the law judgeth the prisoner to be at large . escheat . escheat , escheats happen two manner of waies aut per defectum sanguinis , as if the tenant dies without issue , aut per delictum tenentis , that is for felony , escheta is derived of the french word eschier accidere , for an escheat is a casuall profit quod accidit domino ex eventu & ex insperato which happeneth to the lord by chance , and unlooked for , in which case we say the fee is escheated . those which are hanged by martiall law , in furore belli , forfeit no lands , for etcheat for felony is three manner of waies . . aut quia suspensus per collum . . aut quia abiuravit regnum . . aut quia ut legatus est . the father is seised of lands in fee holden of i. s. the sonne is attainted of high treason the father dieth , the land shall escheat to i. s. pr●pter defectum sanguinis , because the father dieth without heir , and the king cannot have the land , because the sonne never had any thing to forfeit , but the king shall have the escheat of all the lands whereof the person attainted of high treason was seised , of whomsoever they were holden . escheator . escheator , cometh from this word escheat , he is so called because his office is to enquire of all casuall profits , and to seise them into the kings hands , that they may be answered to the king. estate estate , is the title or interest that a man hath in lands or tenements . in the law any estate for life being an estate for freehold is a higher and greater estate then a lease for years , though it be for a thousand or more , which never are without suspicion of fr●●d , cook on lit. p. . essoin . essoin , essonium , and sometimes exonium , and sometimes without x or s is a word forensall and cometh of an obsolete french word essonier , or exonier , to excuse and free from care , from the word soingnire . it is an excuse made for the tenant or defendant who would not appear , and be admitted in reall actions , or to suiters in court baron for five causes . . de malo viae sive veniendi , where the tenant would not come in respect of some impossibility , or durst not in regard of some eminent danger , and this is called es●onium commune . . de malo lecti , where some disease hindereth , which according to its nature giveth longer or shorter day , glan cap. . . tenus mare , which is cast on the behalf of the tenant when he is beyond the seas , and this is for fourty daies at least , glanvillus cap. . . servitium regis , when the tenant is in the kings service , and then the plea resteth without day untill he retur , glanvillus cap. . . de terra sancta , where the tenant or defendant was in pilgrimage to the holy land , or as voluntier against the saracens , and then a year and a day at the least was allowed by the essoin . essoin is sometimes taken for any excuse of assize in clarendon tempore . h. . forenden . p. . nulli liceat hospitari aliquem extraneum ultra unam noctem in domo sua , nisi hospitatus ille essonium rationabile habuerit . estoppel . estoppell is when one is concluded and forbidden in law to speak against his own act or deed , yea though it be to say the truth , and therefore jurors cannot be estopped , because they are sworn to say the truth . estoppels are three waies effected , . by matter of record . . by ba●e writing . . by fact , in paiis . estouers . estouers , are nourishment or maintenance , it is also used for certain allowances of wood to be taken out of another mans wood , whence the english call houshold goods or furniture , and the matter of which other things are made stuff spelman glossar . it is the allowance to a selon in prison out of his own goods , in vitae sustentationem . estray . estray , is where any beast or cattell is in any lordship , and none knoweth the owner thereof , then it be shall sei●ed to the use of the king , or of the lord that hath such estray by the kings grant , or by prescription . and if the owner come and make claim thereto within a year and a day , then he shall have it again , or else after the year , the property thereof shall be to the lord , so that the lord make proclamation thereof according to the law. goods waived , the civilians call d●relicta , and bracton saith quod olim fuerint inventoris de iure naturali , & jam efficiuntur principis de iure gentium . but now kings have granted this prerogative unto their subjects within their liberties , so that waives and estrayes are the lords of the franchise where they are found , but they must first by him be caused to be cryed in markets near about him , or else the year and day runs not to the prejudice of him that lost them . estreats . estreats , are so called from the word extract● because they be short notes or memorials extracted or drawn out of the records by the clerk of the peace , and by him indented and delivered sunderly to the sheriff , and to the barons of the exchequer , bearing this or the like title , extracta finium amerciamentorum foris factorum ad generalem sessionem pacis , &c. coram , &c. for the form of the making hereof , thence is full direction given to the clerk of estreats by the stat. h. s. exchange . exchange , is where a man is seised of certain land , and another man is seised of another land , if they by a deed indented , or without deed ( the lands being in one county ) exchange their lands , so that each of them shall have the others lands to him so exchanged in fee , fee tail or for term of life , that is called an exchange , and is good without livery and ●●●in . it behoveth alway , that this word exchange be in the deed , or else nothing passeth by the deed , except that he have livery and seisin , for the word , excambium only maketh an echange , as the words liberum maritagium only do make frank marriage . every exchange ought to be made by this word excambium , or by another word of the same effect , as permutatio perkins . both the things exchanged ought to be in esse at the time of the exchange , and therefore an exchange of land for rent granted de novo is not good , but an exchange betwixt a rent and a common which are in esse at the time or the exchange is good , and so it is of land and rent . if two parsons of several churches change their benefices , and resign them into the hands of the ordinary to the same intent , and the patrons make their presentations accordingly , and the one of the parsons is admitted , instituted and inducted , and the other parson is admitted and instituted , but dieth before induction , the other parson shall not retain the benefice in which he is inducted , for the exchange is not perfected , because it is not executed . execution . execution , execution for debt is four-fold , . of goods only by fieri facias , or of the moity of lands by elegit , or upon the reconusance of a statute ; or of the body by capias ad satisfaciendum . executor . executor , is when a man makes his testament and last will , and therein nameth the person that shall execute his testament , then he that is so named is his executor , and is as much in the civil law , as haeres designatus , or testamentarius , as to debts , goods and chattels of the testator . an executor is after three sorts . . executor testamentarius a testatore constitutus . . executor legalis , that is the ordinary . . dativus the administrator , cook rep. sir iohn nedhams case . an executor or administrator ought to execute his office , and administer the goods of the dead lawfully , truly and diligently . . lawfully in paying all the duties , debts and legacies , in such precedency and order , as they ought to be paid by the law. . truly , to convert nothing to his own use , for an executor or administrator hath not goods of the dead to his own use , but in anothers right , and to others uses , and he ought not to practice or devise any thing to hinder the creditor of his debt , but truly to execute his office according to the trust reposed in him . . diligently , quia negligentia semper habet comitem in fortunium . if tenant for life soweth the ground and dieth , his executors shall have the corn , because his estate was uncertain , and determined by the act of god. de bonis defuncti trina debet esse dispositio . . necessitatis , ut funeralia . . utilitatis , that every one shall be paid in such precedency as ought to to be . . voluntatis , as legacies . executor de son tort , is he that takes upon him the office of an executor by intrusion , not being so constituted by the testator or deceased , nor ( for want of such constitution ) constituted by the ordinary to administer how farro we shall become lyable to creditors vide eliz. cap. . dyer . . . dyer . belknap . . ed. . . , . eliz. dyer , . exigent . exigent , by which one is outlawed , not rendring himself , as ye would say exactus or actus in exilium extortion . extortion , is the unlawfull taking by any officer , by colour of his office , any money or valuable thing of or from any man , either that is not due , or more then is due , or before it be due . it is largely taken for any oppression , by power , or by colour , or pretence of right , from the verb , extorqueo . evidence . evidence , this word in legall understanding , doth not contain matters of record , as letters patents , fines , recoveries , inrolements , and the like , and writings under seal as charters and deeds , and other writings without seal , as court rols , accounts and the like , instrumenta , but in a large sense it containeth also testimonia the testimony of witnesses , and other proofs to be produced and given to a jury , for the finding of any issue joyned between the parties , and it is called evidence , because thereby the point in issue is to be made evident to the jury , probationes debent esse evidentes , id est , perspicuae & faciles . a man seised of lands in see hath divers charters deeds and evidences , and maketh a feosment in see either without warranty , or with warranty only against him and his heirs , the purchaser shall have the charters , deeds and evidences as incident to the lands and ratione terrae , that he may the better defend the land himself , having no warranty to recover in value , for the evidences are as it were the sinews of the land , and the feoffer being not ●ound to warranty , hath not use of them , but if the feoffer be bound to warranty , then he shall have all deeds and evidences , which are material , for the maintenance of the title of the land , but others which concern the possession the feoffec shall have . f farm farm , ( in latin firma ) cometh from the sa 〈…〉 word feormian to feed or relieve , for in a 〈…〉 time , upon leases were reserved corn , cattel● victuals , &c. which was called feorme : so that although now by agreement such rent is turned into money , yet it retains the name still , and as well the land so leased as the rent is called farm , and the occupyers of such land farmers . a farm in lancashire is called a fermeholt , in the north parts a tacke , and in essex a wike , and was antiently called sundus . by the grant of farmes will pass leases for years , as also houses ▪ lands , &c. fealty . fealty , it is the most generall service in the common law , for it is incident to every tenure , unless it be a tenure in frankalmoigne , it is also the most sacred , because it is done upon oath , and the reason wherefore the tenant is not sworn , in doing his homage to his lord , is because no subject is sworn-to another subject , to become his man of life and member , but to the king only , and that is called the oath of allegiance , homagium ligeum , and those words for that purpose are omitted out of fealty , which is to be done upon oath . fee-simple . fee-simple , fee cometh of the french fief , that is praedium beneficiarum , and legally signifieth inheritance . feudum . feudum , is a barbarous word , but had his original ( a● i●idore saith ) from foeaus , and is to be interpreted tanquam foeaum , that is , a thing covenanted between two , others deduce it from the word ●ides as it were in latin fideum and by a more pleasant pronuntiation feudum , whereupon such as u●e feudataries to others , are called in latin fideles , because they owe saith an allegiance to such whose feudataries they are . it is called fee-simple , because it is descendible to his heirs generally that is simply without restraint to the heirs of his body . a man may have a fee-simple in kinds of hereditaments , viz. reall , personal and mixt , reall as lands and tenements . . personall , as if an annuity be granted to a man and his heirs . . mixt hereditaments , as when the king createth an earl of such a county , to have the dignity to him and his heirs , this dignity is personall , and also concerneth lands and tenements . every man that hath a fee-simple , hath it either by right or by wrong , if by right , then he hath it either by purchase or descent . if by wrong , then either by disseisin , intrusion , abatement , or usurpation . fee . fee or inheritance is either , . corporeall , as lands and tenements which lie in livery , these may pass by livery by deed or without deed. . incorporeall , which lyeth in grant , and cannot pass by livery , but by deed , as advowsons , commons . fees . fees , there are divers opinions about knights sees . some say that a hide or a plow of land contains acres , and that hides or acres of land , make a knights fee , and others hold that acres of land make this , but a knights fee is properly to be esteemed according to the quality and not the quantity . in antient time men thought l. of lands was sufficient to maintain the degree of a knight , also every plow of land was antiently worth four nobles per annum , and this the life of a yeoman , & ex duode●in carucatis constabat unum foedum imlitare , which amounts to l. per annum . feoffement . feoffement , is the antient and most necessary conveyance , because it is solemn and publick , and also because it cleareth all disseisms , abatements , intrusions , and other deseasible estates , where the entry of the feoffer is lawfull , which neither fi●e recovery , nor bargain and sale by deed indented and inrolled doth , ephron infeoffed abraham gen. . if a contract of matrimony be between a man and a woman , yet one of them may infeoff the other , for yet they are not one person in the law , insomuch as if the woman die before the espousal celebrated between them , the man to whom sh● was contracted shall not have her goods as her husband , but the woman may well make her testament without his consent . it hath been held if a man be contracted to a woman , & postea cognotit eam carnaliter , and after he infeof her of a plow of land , and put her in seism , and after marry her in facie ecclesie , that this feoffment was void , because it was done post fidem datam , & carnalem copulam , & sic tan●uam inter virum & u●●rem , insomuch as marriage followed , but at this day it such a feoffment be made , it is good enough . felony . felony , is so called either of the latin word f●● , which is in english gall , or of the antient english word fell or fierce , because it is intended to be done with a cruell , bitter , fell , fierce or mischievous mind . significat quod libet capitale crimen felleo animo perpetratum , in which sense murder is said to be done prr fel●niam , and in antient times this word ( felonice ) was of so large an extent , as it included high treason , and by pardon of all felonies , high treason was pardoned . a man may have property of some things which are of so base nature , that no felony can be commited of them , and no man shall lose for them life or member , as a blood-hound and a mastiff . to steal fruit that hangeth on a tree , to cut down and carry away the tree it self , is not felony , but these things be part of the free-hold till they be sever'd , and cannot be reputed for any chat●els . but if i gather mine apples or cut down a tree of mine own , then may another become a felon by taking away either of them . felony cannot be comitted by the taking of beasts that be savage , if they be savage and untamed at the time of taking , nor for taking of doves being out of a dove-coat , not for taking of fishes being at large in a river , for such taking is not contrectatio rei alienae , sed quae est nullius in bonis , but the stealing of a doe which is tame and domesticall is felony , but as m r stamford well noteth , it seemeth that he that stealeth it should have certain knowledg that it is tame ; but if the doe be killed , and then stolen , this is certainly felony , saith he . so if one break a dove-coat , and take out the young pigeons which cannot go nor ily , this is felony , or steal fish out of a pond or trunk , or young goshawks ingendered in my park , which cannot go nor ily . the punishment of a felon is grievous . . he loseth his life , his judgment is to hung by the neck untill he be dead . . he loseth it in an odious manner , by hanging between heaven and earth , as unworthy o● both . . his blood is corrupted and stained that his children cannot inherit to him nor any other ancestors . . he shall forfeit all his lands and tenements which he hath in fee , and in tail , and for tenour of his life . . all his goods and chattels . . his wife shall lose her dower , thus severe it wa● at the common law , that men should fear to commit felony , ut poena ad paucos , metus ad omnes perveniat . an act anno iacobi regis , concerning women convicted of small felonies , continued tertio caroli cap. . to the end of the first sessions of the next parliament . whereas women having not the benefit of clergy , do suffer death for small causes , be it enacted that a woman lawfully convict of felonious taking of any goods above twelve pence , and under ten shillings value , or as accessary to such offence , the same being not burglary , nor robbery , nor privy stealing from the person ( but only such an offence for which a man shall have clergy ) she shall for the first time be branded upon the brawn of the left thumb with a hot iron having a roman t by the ga●ler in open court , and further punished by imprisonment , whipping , stocking , house of correction , and for so long time not exceeding a year , as the ludge shall think meet the civil laws do judg open theft to be satisfied by the recompence of four-fold , and private theft , by the recompence of double . but the laws of england suffer neither of these offences to be more favourably punished then with the offendors death , if the value of the thing stollen be above twelve pence . if a man be adjudged to be hanged , and the sheriff be commanded that it be executed , and he be head him , this is felony in the sheriff , because the order of law is not observed . felo de se. if a man of non sanae memoriae give to himself a mortall wound , and before he dieth he become of sound memory , and after dieth of the same wound , in this case , although he die of sound memory , by reason of his proper stroke , yet because the original cause was committed , being not of sound memory , he shall not be felo de se , because the death hath relation to the original act . by the common law if a man kill himself he is called felo de se , and he doth only forfeit hi● goods and chattels , but not his lands , neither dot● this work corruption of blood , no● the wife lose her dower , because it is no attainder in deed . he that is felo de se shall not have christian buriall , and all his goods and chattels are forfeited to the king , and by his almner are to be distributed to pious uses ( heretofore ) in salutem animoe . fine . fine , this word ( finis ) hath divers significations in the law , quia aliquando significat pretium aliquando poenam , aliquando pacem . for . the price or summe which is the cause of obtaining a benefit , is called a fine : as a fine for alienation for admission to a copy-hold for obtaining of leases . . what the offender gives in satisfaction of his offences , is called a fine also , and in this sense dicitur poena . . the assurance which makes men to enjoy their lands and inheritance , is called finis quia ●inem litibus imponit . they are all so called , because they are the ends or causes of the ends of all such business . of fines taken of copyholders , some be certain by custom , and some be uncertain . but that fine though it be incertus , yet it must be rationabilis , and that reasonableness shall be discussed by the justices upon the true circumstances of the case appearing unto them , and if the court where the cause dependeth , adjudgeth the fine exacted unreasonable , then is not the copy-holder compellable to pay it . flight . flight , one shall forfeit his chattels upon a sugam fecit , notwithstanding that he be acquitted of the same felony , and he shall forfeit them , although he have his charter of pardon for the same felony . one may fly for felony , and yet he shall forfeit nothing , as where one is arrested for suspicion of felony and escapes , yet for this he shall not forfeit his goods , if he were not taken with the manner , or at the suit of the party , or endicted of the same . when a true man is pursued as a felon , and he ●lieth and waveth his own goods , these are forfeited , as if they had been goods st●llen . fatetur facinus , qui judicium fugit . those that ●ly for fear of the offence ( we call it a sugam fecit ) forfeit their chattels . floatsom . floatsom , is when a ship is drowned , or otherwise perished , and the goods ●loat upon the sea , and they are given to the lord admiral by his letters pattents . force . force , prohibited by the statutes , must be either manu f●rti , with sorce or strong hand , or multitudine , with multitude of people . the counsellours and committers of ●orce are alike punished . forging . forging of deeds , to forge is metaphorically taken from the smith , who beareth upon his anvill , and forgeth what fashion or ▪ shape he will. formedon . formedon , is so called , because the w●it doth comprehend the form of the gift . there be three kinds of writs formed●n , ●i● . the first in the descender , to be brought by issue in tail , which claim by descent per formam doni . the second is in the reverter , which lieth for him in the reversion , or his hel●● or assignes , after the state tail is spent . the third is , the remainder which the law giveth to him in the remainder , his heirs or assigns after the determination of the estate tail . foundation . foundation , the foundation of a colledge or hospitall is called , fundati● , ●uasi fundi datio , vel fundamenti locatio . franchise . franchise , is a priviledge from ordinary jurisdiction , and it is called a franchise royall in some statutes , where the kings writ runneth not , as when the king granteth to one and his heirs , that they shall be quit of toll . frankalmoigne . frankalmoigne , in latin , libera eleemosyna , in english free alms , is when a man in antient time before the statute of quia emptores terrarum , had infeoffed an ecclesiasticall person whether regular , as abbo●s , priors , &c. or secular , as bishops , deans , and chapters , arch-deacons , prebends , parsons , vicars , &c. to have and hold to them and their succes●ors , to hold of the feoffe● , and his heirs in frankalmoigne . there is an officer in the kings house called eleemosynarius , the kings almn●r ▪ frank-tenement . frank-tenement , free-h●ld , is an estate that a man hath in lands or tenements , for term of his own life , or of anothers li●e , in dower or by the co●●tesie of england , and under that there is no free-hold , for he that hath estate for years , or holdeth at will , hath no freehold , but they are called cha●tels . a tenement cannot be said to be free-hold , except it touch the earth , and therefore a chamber built upon a hall or parlor , cannot be said to be free-hold , because it cannot be perpetuall , for the foundation may perish , and therefore it cannot be demanded by plain● or writ . tenant in ●ee , tenant in tail and for life , are said to have a frank-tenement , a free-hold so called , because it doth distinguish it from termes of years , chattels upon uncertain interests , lands in villenage , cus●omary or copy-hold lands . free-man . a man may be liber homo a free-man in london three waies . . by service , as he who hath served his apprentiship . by birth-right , as he which is the son of a free-man of london . . by redemption , that is , allowance of the court of the major and aldermen . fresh-suit . fresh ▪ suit , 〈…〉 ner which escapeth be out of vi●w , 〈…〉 be made , and he be 〈…〉 〈…〉 ins●cuti●e , he shall be in execution , 〈…〉 her wife at the turning of a corner or by 〈…〉 a house , or by other means , the the prisone● may be out of view . g. gavelkind . gavelkind , is a custom annexed ▪ with lands in kent , by which all the brethren shall inherit together , as sisters at the common law. it is called gavelkind , either of give all kin , that is , to all the kindred in one line , according as it is used among the germanes , from whom we englishmen , and chiefly of kent come , or of give all ●ind , that is , to all the male-children , for ●ind in dutch signifieth a male-child . but now by the star●te h. a great part of kent is ●●●e desceadible to the eldest sonne according to the course of the common law , because by that custom , d●vers antient and great families after a few descents come to very little or nothing . in 〈…〉 ties riv●s deducitur amnis . ●●● minor , ac●unda deficiente perit . after that william duke of normandie had invaded and conquered all england , kent only excepted , atlast also the kenti●h men yeilded , but upon condition that they might enjoy their antient customes of gavelkind , which was granted unto them , and since hath continued . in gavelkind , though the father be hanged , the sonne shall inherit , for their custom is , the father to the bough , and the son to the plow. the wise shall have the moi●y of the lands of her husband , so long as she lives unmarried , and of lands in gavelkind , a man shall be tenant by the courtesie , without having of any issue . if a man make a gift intail of lands in gavelkind , to a man and his heirs , males of his body lawfully begotten , and hath issue sonnes , in this case all the sonnes shall inherit , but if a lea●e for life be made of lands in gavel-kind , the remainder to the right heirs of i. s. and i. s. die having issue sons , in this case the eldest sonne only shall have the remainder , he only can be a right heir in case of purchase . general generall , if one speak grosly , it shall be understood secundum excellentiam , as of the feast of ●ichael , it shall be understood of the arch-angel , as the more worthy and notorious . grand serieanty . grand serjeanty , is where a man holdeth of the king certain lands , by the service of carrying of his banner or launce , or to lead his host , or to be his carver , or butler at his coronation . the demockes hold a mannour of scrivel , by service of grand serjeanty , viz. that whensoever any king of england is to be crowned , then the lord of this mannour , for the time being , or some one in his name ( if himself be unable ) shall come well armed for the warre , mounted upon a good horse of service , in the presence of the soveraigne lord the king upon his coronation day , and cause proclamation to be made , that if any man will avouch that the said soveraign lord the king , hath not right to his kingdom and crown , he will be prest and ready to defend the right of the king of his kingdom , of his crown and dignity , with his body against him and all others whatsoever . grange . grange , in legall latin grangea is a house or edifice not only where corn is stored up like as in barnes , but necessary places for husbandry also , as stables for hay and horses , and styes for other cattle , and by the grant of a grange , which is often in conveyances , will pass such places as aforesaid . grant . grant. it is a maxim in law that every mans grant shall be taken by construction of law most forcible against himself , which is so to be understood , that no wrong be thereby done , for it is another maxim in law , quód legis constructio non facit injuriam . and therefore if a tenant for life maketh a lease generally , this shall be taken by construction of law , an estate for his own lite that made the lease , for if it should be a lease for the life of the lessee , it should be a wrong to him in the reversion . so if tenant in tail make a lease generally , the law shall suppose this to be such a lease as he may lawfully make , and that is for term of his own life , for if it should be for life of the lessee , it should be a discontinuance , and consequently the state which should pass by construction of law should make a wrong . where the grant is impossible to take effect , according to the letter , there the law shall make such a construction , as the gift by possibility may take effect . ben●g●è faciendae sunt interpretationes chartarum propter simplicitatem laicorum , ut res magis valeat quam pereat , that the thing may rather be strengthened then void , for if writs be not formally made , they shall abate , which is no greater prejudice , then the purchasing of a new writ , but if the grant be void , the patty hath no remedy . if two tenants in common be , and they grant a rent of ● . per annum out of their land , the grantee shall have two rents of shillings , because every mans grant shall be taken most strongly against himself , and therefore they be severall grants in law. but if they two make a gift in tail , or lease for life , reserving s. rent to them and their heirs , they shall have but one twenty shillings , for they shall have no more then themselves reserved , and the donee or lessee shall pay but s. according to their own express reservation . if a man have five horses ●in his stable , and he give to me one of his horses in his stable , now i shall take which horse i will. if a man grant an annuity out of certain land , and he hath no land at the time of the grant , yet the grant shall charge his person . the law saith that benefits from the crown are strictae , nay strictissimae interpretationis , because in such grants so much is taken away from the publick ( which is chiefly to be tendered ) as is imparted to the private . if a man hath mines hidden within his ground , and lets ●is ground and all the mines with it , the lessee may dig for them , for quando aliquis aliquid concedit , con●edere videtur & id sine quo res ipsa esse non p●test . the queen is an exempt person from the king by the common law , and is of ability and capacity to purchase and grant without the king. if a man grant certain land to one cum communia in omnibus terris suis , and express not any certain place , he shall have common in all his lands , which he had at the time of the grant . a man grants all his trees and wood upon b. acre , that may reasonably be spared , this is a void grant , unless it be referred to a third persons judgment , what may be spared . if the king grant to me that i shall not be sheriff without shewing of what county , this is void for the uncertainty , quia concessi● per regem oportet fieri de certitudine , but if the grant was quòd non erit vicecomes alicujus comitatus , there such a grant is good , when the words of a grant are not sufficient ex vi termini to pass the thing granted , but the grant is utterly void , there a non obstante connot make the grant good . the lord chancellour of england , the justices of the kings bench or common pleas , and barons of the exchequer , cannot grant their offices over to other persons , nor occupy them by deputy . if an annuity be granted to me pro consilio in posterum impendendo , i cannot grant this , unless it be granted to me and my assigns . a parson may grant to another the moity of his tythes for years , whether it be lamb , wool or corn , and yet he hath no possession of them , because they are not yet in esse . but yet he hath an interest in them , and may grant the moity of them , as well as one may grant to another that it shall be lawfull for him to take every year a deer or a hare , or a cony within his soil , this is a good grant . h harriot . harriot , in the saxon tongue is called hergeat , that is , the lords beast , for here is lord , and geat is best . harriot is in two sorts . . harriot custom , where harriots have been paid time out of mind by custom , and this may be after the death of the tenant for life . harriot is the best beast ( whether it be horse , ox , or cow ) that the tenant had at the time of his death . . harriot service , when one holds by such service to pay harriot at the time of his death , this is payable after the death of the tenant in fee-simple . for herriot service the lord shall distrain , and for herriot custom , he shall seise , and not distrain . if the lord purchase part of the tenancy , herriot service is extinguished , but it is not so in herriot custom in ed. . it is holden that if any tenant wh●ch holdeth of me by a herriot , alien parcell of land to another , every one is chargeable to me of a herriot , because it is entire , and if the tenant purchase the land again , i shall have of him for every portion a herriot . if the lord ought to have an herriot when his tenant dieth , and the tenant deviseth away all his goods , yet the lord shall have his herriot , for the law preferreth the custom before the devise . heir . heir , in the legall understanding of the common law implyeth that he is ex justis nuptiis procreatus , for haeres legitimus est quem nuptiae de monstrant , and is he to whom lands , tenements , or hereditaments , by the act of god , and right of blood do descend , of some estate of inheritance . every heir is either a male or a female , or an hermophrodite , that is both male and female . and an hermophrodite ( which is also called andr●gynus ) shall be heir , either as male or female according to that kind of the sex which doth prevail . hermaphrodita , tam masculo quam foeminae comparatur , secundum proeva ' escentiam serus incalescentis , and accordingly it ought to be baptised . haeres est quintuplex . . iure proprietatis , so the eldest son shall inherit only before all his brethren . . iure repraesentationis , as where the eldest sonne dieth , his issue shall inherit before the younger son , he represents the person of his father . . iure propinquitatis , as propinquus excludit rem●tum , & remotus remotiorem . . iure sanguinis , so the daughter of the first vent 〈…〉 shall inherit before the son of the second . . ratione doni , so the half blood shall inherit , as if a gift be made to one and the heirs of his body , and he hath issue a son , and a daughter by one venter , and a son by another venter , the father dies , and the eldest son enters and dies , the young son shall inherit per formam doni , for he claims as heir of the body of the donee , and not generally as heir of his brother : otherwise where land cometh by descent , the rule is possessio fratris de foedo simplici facit sororem esse haeredem , but the brother ought to be in actual possession of the fee , and frank-tenement , either by his own possession , or the possession of another to make his sister heir , and the reason is , because of all haereditaments in possession , he which claimeth as heir , ought to make himself heir by him that was last actually seised . id. ib. but if the king by his letters patents make a baron to him and his heirs , possession in the elder brother of this dignity cannot make his sister heir , but the brother of the half blood shall inherit , because no possession can be gained of this dignity ●er ped is p●sitionem . in case of the descent of the crown , the half blood shall mi●erit . so after the decease of king edward the sixth , the crown sell to queen mary , and from her to queen elizabeth , both which were of the half blood , and vet inheri●ed not only the lands which king edward , ●r queen mary purchased , but the antient lands parcell of the crown also . a man that is king by descent of the part of his mother , purchaseth land● to him and his hens , and dyeth without issue , this land shall descend to the heir of the part of the mother , but in case of a subject , the heir of the part of a father shall have them . hereditament . hereditament , is a word much used in conveyances , and in grants will pass whatsoever may be inherited , be it corporeall or incorporeall , reall , personall or mixt , and by the grant of hereditament isles , charters , signioryes , mannours , houses and lands of all sorts , rents , services , advowsons , and commons . haeres . haeres est pars antecessoris ; therefore if land be given to a man and his heirs , all his heirs are so totally in him , as he may give the lands to whom he will ; one cannot be heir till the death of his ancestor ; he is called haeres apparens heir apparent . every heir having land , is bound by the binding acts of his ancestors , i● he be named , qui se●ti● commodum sentire debet & incomm●dum sive ●nus . cook on lit. l. c. . sect . . a man by the common law cannot be heir to goods or chattels ; for haeres dicitur ab haereditate . if a man buy divers fishes , as ca●ps , bream● ▪ tenches , and put them into his pond and dieth ; in this case the heir shall have them , and not the executors ; but they shall go with the inheritance ▪ because they were at liberty and could not be gotten without industry , as by ne●s an : other engines ▪ and otherwise it is if they were in a trunk . likewise deer in a park , conies in a warren , and doves in a dove-house , young and old shall go to the heir . hotchpot . hotchpot , is a medling or mixing together , and a partition of lands given in frank-marriage , with other lands in fee-simple descended . it is an old saxon word , and signifieth a pudding ; and the french use hotch-pot for a commixtion of divers things together . it signifieth here metaphorically in partem positio ; in english we use to say hodge-podge , in latin farrago or miscellaneum . homage . homage is , . the most honourable service . . the most humble service . . on part of the tenant . . the tenant when he doth his homage is dis●inctus , disarmed , because he must never be armed against his lord. . nudo capite , bare headed . . ad pe●●● domini super genua projectus . . amb●s ma●us junctas , inter manus domini porrigit , which betokeneth reverence and subjection . . per verba omni supplici veneratione plena , he saith , i become your man. . on part of the lord for three causes . . the lord doth sit . . he uncloseth his tenants hands between his own , which betokeneth protection , and defence . . the lord sitting kisseth the tenant . cook on lit. lib. . cap. . sect . . glanvill saith women shall not do homage , but littleton saith , that a woman shall do homage , but shall not say , i become your woman , but i do to you homage , and so is glanvill to be understood , she shall not do compleat homage . homicide . homicide , is when ●ne is slain with a mans will , but not with malice prepensed : most properly it is hominis occisi● ab homine facta . bracton saith , it is homicide if one strike a woman great with child , so that she miscarry ; si puer perium animatum fuerit , and this agreeth with the canon and civil law , but the contrary is now law amongst us . to make it homicide , it is requisite . that the party killed be in esse , viz. in rerum natura , for if a man kill an infant in his mothers womb , this is no felony , neither shall he forfeit any thing for it , for two causes . . because the thing had no name of baptism . . because it is hard to judg whether the insant dyed of the battery or not , or upon some other cause . fitzherbert puts a stronger case , viz. if a man strike another woman great with child with two infants , so that presently after one of them die , and the other was born and baptized , and two daies after , for the hurt that he had received dieth , and yet it was no felony . but if a woman being delivered of a child doth presently kill it before it be baptized , this is felony in her , though the child had no name of baptism ; because the child was in rerum natura before it was killed , and it is known by whom , and by what means that child came to his death . anno primo iacobi regis , c. . an act to restrain suddain killing and stabbing of men done in time of drunkenness , rage , and hidden displeasure . be it enacted that if any shall siab or thrust any that hath not a weapon drawn , nor hath first stricken , and the party dieth thereof within six moneths , the offender being thereof convicted by verdict of twelve men , confession or otherwise , shall suffer death , as in case of wilfull murder , without benefit of clergy . this statute shall not extend to killing , se defendendo , by misfortune or in other manner , then as aforesaid , nor to man-slaughter done in keeping of the peace , so as it be not wittingly under colour of keeping the peace , nor to any which in correcting child or servant shall beside their intent commit manslaughter , this statute to continue untill the end of the first session of the next parliament , continued iacobi , cap. . & tertio caroli cap. . to the end of the first session of the next parliament . the offender in this case shall have his clergy , but shall forfeit his goods . there is homicide , . of malicious purpose , which we call murder . . upon the suddain , in a heat and fury of mind , which we term man-slaughter . . which we call se defendendo . . per infortunium , homicide of a mans self , whereby the offender is called felo de se. man-slaughter se defendendo , is where two fight together upon a suddain , and before the mortall wound on either party , the one flieth unto the wall or some other place , beyond which he cannot pass , for the safeguard of his life , and the other pursueth him , and he which flieth killeth him that pursueth , this is man-slaughter in his own defence , and the offender in this case shall forfeit his goods . quod quis ob tutelam corporis sui ecerit , jure id fecisse videtur . house . house in a house four things are necessary . . habitatio homini● . . delectatio inhabitantis . . necessitas luminis . . salubritas aeris . for hurt made to three of these an action lieth . . of the habitation of a man , for this is the principall end of a house . . for hinderance of his light , for the antient form of an action upon the case was significant , quòd messuagium horrida tenebritate obscuratum suit . it is said , vescitur aura aetherea , and the words horrida tenebritate imply the benefit of light , but for a prospect which is a matter only of delight , and not of necessity , no action lies for stopping of this , and yet it is a great commendation of an house , if it have a fair prospect . unde dicitur , laudaturque domus longos qui prospicit argos . . and if stopping of wholsome air be actionable à fortiori , an action lies for corrupting and infecting the air , a lime kill is good and profitable , but if this be erected so near a house that none can inhabit there , for the entring of the smoke an action will lie , prohibetur ne quis faciat in suo quod nocere possit alien● . the house of every one is to him as his castle and fortress , as well for his defence against injury and violence , as for his repose , and although that the life of a man be a thing precious and favoured in the law , so that when a man kills another in his own defence , or per infortunium without any intent , yet this is felony , and in such cases he shall forfeit his goods and chattels for the great respect that the law hath to the life of a man. but i● thieves come to ones house to rob or murder him , and the owner or his servants kill any of the thieves in defence of him and his house , this is not felony , nor shall he lose any thing . domus sua cuique est tutissimum refugium . . when any house is recovered by any reall action or by an ejectione firmae , the sheriff may break the house , and deliver seisin or possession to the demandant or plaintiff , for the words of the writ are , habere facias seisinam , or possessionem , and after judgment this is not the house in right , and judgment of the law , of the tenant or defendant . . in all cases where the king is party , the sheriff ( if no door be open ) may break the house of the party , either to take him or to do other execution of the process of the king , if otherwise he cannot enter in it , but before he break it , he ought to signifie the cause of his coming , and to request him to open the door . for in such case if he break the house when he may enter without breaking it ( that is upon request made , or if he may open the door without breaking it ) he is a trespasser . the preheminence and priviledge that the law giveth to houses which are for habitation of men is great . . a house ought to have the precedency in a praecipe quod reddat , before lands , medowes , pastures , woods , for ones house is his castle . . the house of a man hath a priviledge to protect him against an arrest , by force of a process of the law , at the suit of the subject . . it was resolved that those that dig for salt-peter shall not dig in the mansion house of any subject , without his assent , for then he nor his wife , nor his children , cannot be in safety in the night , nor his goods in his house preserved from thieves . . he that kills one which will rob and spoil him in the house shall forfeit nothing . if a man ( hearing that another will fetch him out of his house and beate him ) do assemble company with force , it will be no unlawfull assembly , for his house is his hold and castle . the kings officer may break an house for felony , or suspicion of felony . . for the common-wealth , for it is for the publick good to take felons . . in every flony the king hath an interest , and where he hath an interest , the writ is , non omittas propter aliquam libertatem , the priviledge of the house will not hold against him . cook rep. cases of executions . for the good of the common-wealth , an house shall be pulled down , if the next be fired . judge doderidge . hue . hue and crie is derived of two french words , huyer & cryer . in legall understanding hue and crie is all one : in antient records they are called hutesium & clamor . this hue and crie may be by horn and by voice . he that goeth not at the commandement of the sheriff or constable upon hue and crie , shall be grievously fined and imprisoned . cooks part of his instit. c. . hundred . hundred , is so called , either because they were at the first an hundred towns and villages in each hundred , or because they did find the king to his wars an hundred able men . between milborne and the inhabitants of the hundred of dumnow in essex , it was adjudged , for a robbery done in the morning ante lucem , t●e hundred shall not be charged , because this robbery was done in the night , for there can be no negligence in them for not keeping the country in the night , neither can they make pursuit after the offenders . but if one kill one in a town in the day , viz. as long as it is full day light , and he which kils him escape the town where the felony was , the town shall be amerced for it , but not if such a felony or murder had been done in the night . in towns or cities which are inclosed , the gates ought to be shut from sun-setting to sun-rising , and if in any such town or city any murder or man-slaughter be done in the day or in the night , and the offender escape , such a city or town shall be amerced . i. ideot . ideot , the words of the statute be , rex habebit custodiam ter●●rum fatuorum naturalium , by which it appeareth that he must be a fool naturall , that is a fool à nativitate , for if he were once wise , and became a fool by chance or misfortune , the king shall not have the custody of him . the king is protector of all his subjects , and of all their goods , lands and tenements , and therefore such as cannot govern themselves , nor order their lands and tenements , his grace ( as a father ) must take upon him to provide for them , that they themselves , and their things may be preserved . ideot , is a greek word , and properly signifieth a private man , which hath not any publick office . amongst the latins it is taken for illitera●us , imperitus , amongst our lawyers , for non compos mentis , in our common english speech , called a natural fool . fatuus à fando , quia inepta loquitur . if one have so much understanding , as he can measure a yard of cloth , number twenty pence or rightly name the dayes in the week , or beget a child , son or daughter , he that can do so , shall not be accounted an ideot or natural fool by the law● of the realm . an ideot naturall in an action brought against him , shall appear in his proper person , but he who is become non compos mentis , shall appear by his guardian , if he be of full age . ietsam . ietsam , is when a ship is in pe●ill to be drowned , and to disburden the ship , the mariners cast the goods into the sea ; in cometh of the french word ietter , to cast ou● ; and sometimes signifieth the admirals prescription ▪ and sometimes the thing cast out of the ship , and prescribed in . ignorance . ignorance , there is a difference in the law between ignorantia and ignoranter . such an act is properly said to be done ex ignorantia , where involuntary ignorance is the cause of it , as if a child or mad man kill a man , but if a drunkard kill a man , this act is said to be done ignoranter , but he is the cause of his own ignorance . imprisonment . imprisonment , is the putting of any person from his own liberty , into the custody of the law , to answer to that which is objected ; and therefore to break the prison is to fly from the tryal of the law , and is adjudged a publick felony , if he were imprisoned for felony , otherwise not , as the stat . de frangent . prisonam . out of this one fact , there groweth sometime a treble offence and selony , viz. . in the prisoner himself , which is most properly called the breaking of prison . . another in him that helpeth the prisoner to get away , which is commonly termed rescuss . . a third , in the officer or party whatsoever , by whose wilfull default he is suffered to go ; and that is termed an escape . a man imprisoned by process of law , ought to be kept in salva & arcta custodia , and by the law ought not to go out though it be with a keeper , and with the leave and sufferance of the gaoler ; but yet imprisonment must be custodia non poena , for carcer ad homines custodiendos , non ad puniendos dari debet . he which is imprisoned by judgment of the law , ought to be kept in salva & arcta custodia , salva because he ought to be in a prison so strong , that he cannot escape , and arcta in respect that he ought to be kept close without conference with others , or intelligence of things at large . incident . incident , is a thing appertaining to or following another , as a more worthier principall : the incident shall pass by the grant of the principall , but not the principall by grant of the incident . accessorium non ducit , sed sequitur suum principale . incidents are , . separable , as rents incident to reversions , which may be severed . . inseparable , as fealty to a reversion or tenure incumbent . incumbent , cometh of the verb incumbo , that is to be diligently resident , and when it is written encumbent , it is falsly written , for it ought to be incumbent , and therefore the law doth intend him to be resident on his benefice . induction . induction , the arch-deacon is to put in the minister in possession by delivering the ring of the church-door unto him , and ringing of bel● , which is called an induction , and that being done , the party becometh an incumbent . a man having a benefice with cure , at the value of ten pounds or more , receives another benefice with cure , and is inducted into this new ; the first is void , ac si esset per mortem & resignationem , by statute hen. . l. dyer . the statute is of the yearly value of eight pound . indented . indented , it cannot be a deed indented , unless it be actually indented ; for albeit the words of the deed be haec indentura ; yet if it be not indented , indeed it is no indenture ; but if the deed be indented , albeit the words of the deed be not haec indentura , yet it is an indenture . deeds indented are called by severall names , as scriptum indentatum , charta indentata , indentura , literae indentatae . an indenture is a writing containing a conveyance , bargain , contract , covenants or argreements between two or more ; and is indented in the top or side answerable to another that comprehendeth the self-same matter . it is called an indenture , because each part in the top or side , similiter scinditur in morem dentium , ut pares esse cognoscantur . infant . infant , an infant of eight years age or above , may commit homicide , and shall be hanged for it , viz. if it may appear ( by hining of the ●person slain , by excusing , or by any other act ) that he had knowledg of good and evil , and of the danger of the offence ; for here malitia supplebit aetatem . yet cook upon littleton sect . . saith , that an infant shall not be punished untill the age of fourteen , viz. the age of discretion . before the age of one and twenty years a man or woman is called an infant in the law. inheritance . inheritance , a man may have an inheritance in title of nobility and dignity three manner of waies ; that is , . by creation , . by descent , . and by prescription : by creation two manner of ordinary waies , . by writ , . and letters patents . creation by writ is the antienter way ; yet that by letters patents is the surer . if he be generally called by writ to the parliament , he hath a fee-simple in the barony without words of inheritance . but if he be created by letters patents , the state of inheritance must be limited by apt words , or else the grant is void : but a man must not only have the writ delivered to him , but sit in parliament , to make him noble that way ; and thereupon a baron is called a peer of parliament : therefore a duke , earl , &c. of another kingdom are not to be sued by these names here , for they are not peers of our parliament . some have an inheritance , and have it neither by descent , nor properly by purchase , but by creation ; as when the king doth create any man a duke , a marquess , earl , viscount , or baron to him and his heirs , or to the heirs males of his body , he hath an inheritance therein by creation . inne . inne , common inns are instituted for passengers and wayfaring men , for the latin word for an inne is diversorium , because he that lodgeth there est quasi divertens se à via , and therefore if a neighbour which is not a traveller , as a friend at the request of the inkeeper lodge there , and his goods are stolen , he shall not have an action , for the writ is , ad hospitandos homines per partes , ubi hujusmodi hospitia existunt , transeuntes , & in isdem hospitantes . the innekeeper shall answer for not●ing , which is out of his inne , but only for those things which are infra hospitium , the words are eorum bona , & catalla infra hospitia ida existentia , and therefore the horse which at the request of the owner is put to pasture , being not infra hospitium , the innekeeper is not bound by the law , to answer for him , if he be stolen , but if the owner require not this , but the innekeeper of his own head puts the horse of his guest to the pasture , he shall answer for him if he be stolen , hospes est , quasi hospitium petens . the host shall not be charged except there be some default in him or his servants . the words are ita quod per desectum hospitatorum , seu servientium s●orum , hospitibus hujusmodi damni non eveniat , and although the guest deliver not the goods to the host to keep , nor acquaint him with them , yet if they be stollen , the host shall be charged , but if the servant of the guest , or he which comes with him , or he which desires to be lodged with him , steal his goods , the host shall not be charged , for it was the fault of the guest to have such a companion or servant , but if the host appoint one to lodge with another , he shall answer for him , as appears . the hostler requires his guest to put his goods in such a chamber , under lock and key , and then he will warrant them , otherwise not , the guest suffers them to be in outward court , where they were ●tolen , the host shall not be charged for the fault ●hat is in the guest . if one bring a bag or chest of evidences or ob 〈…〉 gations into an inne , and they be stolen through 〈…〉 e default of the host , the innekeeper shall an●wer for them . if a man lodg with any ( which is not an inne-keeper , upon request , and he be robbed in his house , by his servants , which lodgeth him or any other , he shall not answer for it , for the words of the writ are hospitatores qui communia hospitia tenent . anno iacobi , any person whatsoever found tipling in any inne or alehouse , to be adiudged within the compass of the statutes against drunkenness . an alehouse-keeper convict of offence against the statute , to be disabled to keep an alehouse for three years after . institution . institution , is when the bishop saith , institu● te rectorem talis ecclesiae , cum cura animarum , & accipe curam tuam & meam . every rectory consists of a spiritualty , and temporalty , and as for the spiritualty , viz. cura animarum , he is a compleat parson by insti●ution , but as for the temporalties , as the glebe land , he hath no frank-tenement in them , till induction . intrusion . intrusion , properly is when the ancestor died of any estate of inheritance expectant upon an estate for life , and then tenant for life dieth , and between the death and entry of the heir , a stranger doth interpose himself , and intrude . iointtenants . iiont-tenants , are so called , because lands or tenements are conveyed to them joyntly , conjuncti 〈…〉 feossati , or qui conjunctim tenent , and are distinguished from sole or severall tenants , from parceners , and from tenants in common , and anciently they were called participes , and non haeredes . and these joynt-tenants must joyntly implead , and joyntly be impleaded by others , which property is common between them and coparceners , but joynt-tenants have a sole quality of survivorship , which coparceners have not . survivourship is not proper to them quarto modo , for there may be joynt-tenants , though there be not equall benefit of survivour on both sides . as if a man letteth lands to a and b. during the life of a. if b. dieth , a. shall have all by the survivour , but if a. dieth , b. shall have nothing . if one joynt-tenant should have more profit then another , the society should be leonina , rather the devouring of lions , then the dividing of men , or according to the proverb , a man should divide honey with a bear. iointure . iointure , it is so called , either because it is granted ratione juncturae in matrimonio , or because the land in frank-marriage is given joyntly to the husband and wife , and after to the heirs of their bodies , whereby the husband and the wise be made joynt-tenants during the coverture . iudges . iudges , all their commissions are bounded with this express limitation , facturi quod ad justitiam pertinet secundum legem & consuetudinem angliae . the judge at his creation takes an oath , that he shall indifferently minister justice to all men , as well foes as friends , that shall have any suit or plea before him , and this shall he not forbear to do , though the king by his letters , or by express word of mouth should command the contrary . he shall also swear that from that time forward , he shall not receive or take any fee or pension , of any man but of the king only , nor any gift , reward , or bribe of any man having suit or plea before him , saving meat and drink , which shall be of no great value . it is a maxim in the law , aliquis non debet esse jadex in propria causa . henry the fourth of that name , when his eldest son the prince was by the lord chief justice , for some great misdemeanours , commanded and committed to prison , he thanked god that he had both a son of that obedience , and a judge so unpartiall , and of such undaunted courage . fortescue speaketh of a judge complaining of a judgment given against a gentlewoman of salisbury , who being accused by her own man , without any other proof , for murdering her husband was thereupon condemned and burnt to ashes : the man who accused her being within a year after convict for the same offence , confest that his mistris was altogether innocent of that cruell fact , whose terrible death he then ( though over late ) grievously lamented : but this judge ( saith the same authour ) saepius mihi fassus est , quod nunquam in vita sua animum ejus de hoc facto purgaret . he himself often consessed unto me , that he should never during his life be able to clear his conscience of that fact . septimo hen. . the king demands of gascoin justice if he see one in his presence kill i. s. and another ( which was not culpable ) was indicted of this before him , and found guilty of the same fact , what he will do in this case , who answered that he ought to respite the judgment against him , because he knew the contrary , and to relate the matter ●ully to the king , to procure him a pardon ; for there he cannot acquit him , and give judgment of his private knowledg , for the judges have a private and judiciall knowledge , of their p●ivate knowledg they cannot judge , but may use their discretion . but where they have a judiciall knowledg , there they may and ought to give judgment according to that . as it one be arraigned upon an indictment for any offence which is pardoned by parliament , there they ought not to proceed in this , nor to give judgement if he be sound guilty , because it appears to them by their judiciall knowledge , that they ought not to arr●ign them , and they ought to take knowledge of statutes , although they be not pleaded . iudgment . iudgment , the censure of the judges is called iudicium , quasi juris dictum , the sinall saying , judgment and doom of the law. every iudg ought in giving his judgment , to avoid two things . . precipitationem , quia ad poenitentiam properat , cito qui judicat . . morosam cunctationem , viz. either when the law is determined , or to make a question in the law where there is none , to cause delay to the party , which is in effect a denying of justice . iurata . iurata , a iury vox est fori nostri , and signifies a company of honest and lawfull men , lawfully sworn , to enquire and relare the truth concerning such things as are inioyned them by a iudge iurata , iuratores , and jury are so called à jurando , they are called in legibus antiquis , sacramentales à sacramento praestando , there are divers sorts of jurors , according to the variety of antient matters , and the nature of the courts , of which there are two sorts more especially eminent , viz. . iurata delatoria , is which inquires out offenders against law , and presents their names together with their offences to the judge , ut in examen vocati juris subeant sententiam , sive ad condemnationem , sive ad deliberationem , and this is called an inquest , and is two-sold . . major , cui totius comitatus lustratio , ut in assisis & sessionibus pacis , nec non in curia regii tribunalis demandatur , and is called the grand jury , or grand inquest . . minor , cui minor jurisdictio , ut unius hundredi in sessionibus pacis creditur . . iurata judiciaria , is that jury which determineth de summa litis , or the matter of fact in issue before the judge , doth punire de jure , and this iurata , or jury is also twofold . . civilis , which takes cognizance of civil actions between subject and subject . . criminalis , which takes cognizance o● actions criminal de vita & membri● and is alwayes betwixt the king , and the subject , commonly called the jur● of life and death . the determination of the jury is called some times duodecim virorum judicium , for that t●● number of men to make up a jury are for th● most part but twelve , which custom for the triall of matter of fact , is very antient , and was used amongst the saxons , ut è l. l. ●theldredi in frequ●nti senateu apud panatingum editis cap. . resert lambertus , in singulis ( inquit ) centuriis comitia sunto , atq●e liberae c●nditionis viri du●deni aetatè superi●res una cum pr●p●sito sacra tenentes j●rento se adeo virum ali ●uem innocentem , haud damnaturos , so●temve absolutur●s , the like to which memorial is , in consulto de monti●ul●s walliae sub aev● ejusdem etheldredi cap. ● . de pignore ablat● viri du●de●im jure consulti ( seu legales ) anglis & wallis jus dicunt● sc. angli s●x walli t●●idem , which we call medietas linguae which i● a priviledge or courtesie afforded by the law to strangers , aliens whose king is in league with us , in s●its about things personall , namely that the jury shall consist of six english , and six of the aliens own countrey-men , if so many can be found , if not aliens of any other country , who by league are capable . the office of the jury is to sind veritatem facti , and of the judge to declare veritatem juris . it is a maxim in the law , quòd ibi semper fieri debet triatio , ubi juratores meliorem possunt habere notitiam . their finding is called veredictum , quasi dictum veritatis . by the law of england a jury after their evidence given upon the issue , ought to be kept in some convenient place , without meat or drink , fire or candle , which some books call an imprisonment , and without speech with any unless it be the bailiff , and with him only if they be agreed . after they be agreed , they may in causes between party and party give a verdict before any of the iudges of the court , and then they may eat and drink , and the next morning in open court , they may either affirm or alter their privy verdict , and that which is given in court shall stand . if the jury after their evidence given unto them at the barre , do at their own charges eat or drink either before or a●ter they be agreed on their verdict , it is unable , but it shall not avoid the verdict , but if before they be agreed upon their verdict , they eat or drink at the charge of the plaintiff , if the verdict be given for him , it shall avoid the verdict , but if it be given for the defendant , it shall not avoid it , & sic è converso . but if after they be agreed on their verdict , they eat and drink at the charge of him for whom they do pass , it shall not avoid the verdict . if a. be appealed or indicted of murder , viz. that he of malice prepensed , kills i. a. pleadeth that he is not guilty modo & forma , yet the iury may find the defendant guilty of man-slaughter without malice prepensed , because the killing of i. is the matter , and malice prepensed is but a circumstance . quod verò polydorus virgilius scribit guilielmum illum victorem duodecim virorum judicium primum induxisse , nihil à vero alienius . multis enim ante annis in usu fuisse certissimum est ex legibus ethelredi , nec est our terrible judicium vocaret , è populo enim duodecim viri liberi & legales è vicinia ritè evo●antur , hi jurejurando obligantur vere de facto sententiam dicere , advocatos coram testes tribunali ut●inque differentes , & audiunt ; inde acceptis utrius● ; partis instrumentis concl●●u●tur , sine ci●●● , p●tu , & igne detinentur ( ni sorte periculum sit ne ex iilis quispiam moriatur ) donec coram judice pronun●iaverint , ille de jure sententiam prose●t . hanc enim rationem prudentissimi majores nostri , optimam esse ad veritatem eliciendam , ad corruptelas evitandas , & affectus intercludendos existimarunt . iustices . iustices , they are called iustices per metonom●am subjecti , because they do or should do law and iustice. all the commissions of the iustices of the assize are bounded with this express limitation , factum quod ad justitiam pertinet secundum legem & consuetudinem argliae . k. king . king , the king by his dignity royall , is the principall conservator of peace within his dominions , and is capitalis iustitiarius angliae . the kings of england themselves heretofore often ●●● in court in the kings bench , the king of denmark sitteth open●● in iustice thrice in the week , and hath doores kept open for the nonce . the kings of england at their coronation take a solemn oath to came all the customes of their realm faithfully to be observed , they promise to all their subjects , ●●●d ●●●● 〈◊〉 , nulli n●●abunt , aut different justitiam vel 〈◊〉 . the king cannot take or part from any thing but by matter of record , and that is for the dignity and maie●●● of his person . rex precipit , & lex precipit , are all one , for the king must command by matter of record , according to the law. cooks part of i●stit . cap. . all lands are holden of him either immediately , or mediately , no action lieth against him . it is a maxim in the law , that the king can do no wrong , because it presumes he will do no wrong . the king hath two capacities in him . one a naturall body , being descended of the blood royal of the realm , and this body is of the creation of the almighty god , and is subject to death , infirmity . . a politique body or capacity , so called because it is framed by the policy of men , and in this capacity , it is said , the king never dieth . although it be a rule in the law , that the king is not bound by the generall words of an act of parliament , where he is not named , yet in these cases the king shall be bound by the generall words of an act , though he be not named , viz. if the statute be to supress wrong , to take away fraud , or to prevent decay of religion , for religion , justice and truth are the supporters of crowns and diadems . knight . knight , is a saxon word , and by them written cnit● , ●hivaler taketh his name from the horse , because they alwaies served in warres on hors-back . the latins call them equites , the spaniards cavalleroes , the french-men , chivaliers , the italians cavallieri , and the germaines reiters , all from the horse . knights-fee . a knights-fee consisteth of twenty pound land , and he payeth for his relief , for a whole knights fee , the fourth part of his fee , viz. five pound and so according to the rate . knights-service . knights-service , is commonly called servitium militare , or servitium militis . regularly there are six incidents to knights service , viz. two of honour and submission , as homage and fealty , and four of profit , escuage , wardship of the lands , marriage and relief . it was called servitium militare , the service of a souldier , and the title of knight-hood came first by doing some military service , and miles signifieth both a souldier and a knight . l. land . land , the land of every man is in the law inclosed from other , though it lie in the open field , and therefore if a man do trespass therein , the w●i● shall be , quare clausu● fregit . terra , land in his generall and legall signification , includeth not only kind of grounds , as medow , pasture , wood , but house● , and all edifices whatsoever : i● a more restrained sense it is taken for arable ground . twenty pound of land was held antiently sufficient to m●●●t in the degree of a knight , markes of land per annum , was a competent living 〈◊〉 or a baron , and l. per annum , ad sustinendum nomen & ●us of an earl ●● markes per annum , the revenue of a marquels , and l. of a duke . qui capit u●orem , capit lites , & qui habet terras , ha●er 〈◊〉 . a wise brings warres , and wealth brings warres , quarrels , suits and controversies at law. all lands are holden of the crown either immediately or mediately by meine tenants , the conqueror by righ● o● conquest got all the lands of the realm into his own hands , and as he gave it , he still reserved rents , and services , which reservation is that which is called the tenure of lands . terra land , in the legall signification comprehendeth any ground , soil , or earth whatsoever , as medows , pastures , woods , moors , waters , ma●ishes , furses and heath , terra est n●men generalissimum , & comprehendit omnes species terrae , but properly terra dicitur à terendo , quia vomere teritur , and antiently it was written with a single ● , and in that sense it includeth whatsoever may be ploughed , and is all one with arvum ab arando . it legally includeth also all castles , houses and other buildings : for castles and houses consist upon two things , viz. lands or ground , as the foundation and structure thereupon ; ●o as passing the land or ground , the structure or building passeth therewith . the earth hath in law a great extent upwards , for cujus est solum , ejus est usque ad caelum . if a man seized of lands in see , by his deed granteth to another the profits of those lands , to have and to hold to him and to his heirs , and maketh livery secundum formam chartae , the whole land it self doth pass , for what is the land , but the profits thereof ? for thereby pasture , herbage , trees , mines , and all whatsoever parcell of the land doth pass . larcenie . larcenie , is so called from the latin , latrocinium ; it is defined to be the taking away of some personall chattel in the absence of the owner . in respect of the thing taken away , it is said to be either great or little . petty larceny is , where the thing stollen doth not exceed the value of d. and that ( say some ) is felony : for the indictment ( say they ) must be felonice coepit , and a man may justifie the calling of one theif for such an offence , and he shall forfeit all his goods and chattels for such a felony . if one shall steal goods to the value of . d. at one time , and d. at another , and of . d. at another time , which do exceed the value of d. and the●e severall goods be all stolen from one and the same person , then may they be put together in one indictment ; and the offender being thereupon arraigned , and sound guilty , shall have judgment of death . latine . latine . fals latin shall not quash an indictment , nor abate any declaration ; for although the original writ shall abate for sal●e latin , yet judicial writs , or a fine , shall not be impeached for false latin. the same law is of an indictment , as if in an indictment it be proefato reginae , whereas it should be praefatae reginae , or praefatae regi , for praefato regi ; the word being latin , and significant ; although it be not congruous latin , the indictment for such incongruity shall not be quashed . but if the word be not latin , nor a word allowed by the law , as vocabulum artis , ( for every art and science have their propria vacabula artis ) but i● insensible ; and if it be in a materiall point , this makes the indictment insufficient , as burglaritur , murarum , selonicè , & similia sunt vocabula artis known to the law ; and therefore if these words , or the like , be mistaken in an indictment , so that in a materiall place there is an insensible word which is not latin , nor any word known in the law , this makes the indictment vitious and insufficient , as murdredum for murdrum , or burgariter for burgulariter ; feloniter for felonice . law . law , is an art of well-ordering a civil society . our common laws are aptly and properly called leges angliae the laws of england , because they are appropriated to this kingdom of england as most apt and sit for the government thereof , and have no dependance upon any forrein law whatsoever , no not upon the civil or canon law other then in cases allowed by the laws of england . cook 's part of instit. c. ● . the common law of england is a law used time out of mind , or by prescription throughout the realm . the law of nature is that which god at the time of creation of the nature of man , infused into his heart for his perservation and direction , and this is lex aeterna ; this was years before any law written , and before any judiciall or municipall laws . iura naturalia sunt immutabilia this law is indelibilis & immutabilis , cook calvins case . the law of england is grounded upon six principall points : . the law of reason . . the law of god. . on divers generall customes of this realm . . on divers principles and maximes . . on divers particular customes . . on divers statutes made in parliaments . the antient and excellent laws of aengland are the birth-right , and the most antient and best inheritance that the subjects of this realm have , for by them he enjoyeth not only his inheritance and goods in peace and quietness , but his life , and his most dear countrey in safety : sometime it is called right ; sometime common right , and sometime communis iustitia . our laws are the same which the norman conqueror found in this realm of england . the laws that william the conqueror sware to observe , were , bonae & approbatae antiquae regni leges . the law of england respects the effects and substance of the matter , and not the very niceity of form and circumstance , qui haeret in litera , heret in cortice , apices juris non sunt jura : nihil quod est cortra rationem , est licitum : for reason is the life of the law , nay , the common law it self is nothing else but reason , which is to be understood of an artificiall perfection of reason gotten by long study , observation , and experience , and not of every mans naturall reason : for nemo nas●itur artifex . this legall reason is summa ratio . and therefore , if all the reason that is dispersed into so many severall heads were united into one , yet could he not make such a law as the law of england is , because by many successions of ages it hath been fined and refined , by an infinite number of grave and learned men , and by long experience grown to such a perfection for the government of this realm , as the old rule may justly be verified of it , neminem oportet esse sapientiorem legibus . no man ( out of his own private reason ) ought to be wiser then the law , which is the perfection of reason . quaeritur , ut crescunt tot magna volumin● legis ? in promptu causa est , crescit in orbe dolus . all books written in the law are either historicall , as the year-books of the common law , or explanatory , as m r stamford his treatise of the prerogative , or miscellan●all , as the abridgements of the common law , or monologicall , being of one certain subject , as m r stamford his book intituled the pleas of the crown , lamberds justice of peace . one of the books of the law is called fleta , because the authour wrote it in the fleet , and the fleet took the name of the river running by it , called the fleet. cook 's preface to rep. see m r seld. ad fled . dissect . legacy . legacy ( otherwise termed by our common lawyers a devise ) is a gift left by the deceased to be paid or performed by the executor , or administrator . leases . leases . there be three kinds of persons , that at this day may make leases for three lives , which could not do so when littleton wrote . . any person seised of an estate tail in his own right . . any person seised of an estate in fee-simple in the right of his church . . any husband and wife seised of any estate of inheritance in fee-simple , or fee-tail in the right of his wife , or joyntly with his wife before the coverture , or after . if one make a lease for so many years as he shall live , this is void in praesenti , for the incertainty . in the eye of the law , any estate for life being an estate for free-hold , against whom a praecipe doth lie , is an higher and greater estate then a lease for years , though it be for a thousand , or more , which are never without suspicion of fraud . touching the time of the beginning of a lease for years ; it is to be observed , that is a lease be made by indenture , bearing date may , to have and to hold for twenty one years , from the date , or from the day of the date , it shall begin on the twenty seventh day of may , if the lease bear date the twenty sixth day of may , &c. to have and to hold from the making thereof , or from henceforth , it shall begin on the day in which it is delivered ; for the words of the indenture are not of any effect till the delivery , and thereby from the making or henceforth take their first effect . but if it be à die confectionis , then it shall begin on the next day after the delivery , if the habe●dum be for the term of twenty one years without mentioning when it shall begin , it shall begin from the delivery , for there the words take effect . if an indenture or lease bear date which is void , or impossible , as the day of february , or of march , if in this case the term be limited to begin from the date , it shall begin from the delivery , as if there had been no date at all . it is true , that every lease at will must be at the will of both parties , and therefore when the lease is made to have and to hold at the will of the lessor , the law implyeth it to be at the will of the lessee also ; for it cannot be at the will of the lessor , but it must be at the will of the lessee . if the wife of i. s. be great with child with a sonne , and a lease be made untill the issue in the womb of his mother come to full age , this is not a lease for years ; for at the time when the lease is to take effect , it is uncertain when the sonne shall be born ; and by consequence the begining , continuance , and end of this is uncertain . and when a lease for years shall be made good by reference , the reference ought to be to a thing which hath expressed certainty at the time of the lease made , and not to a possible or causuall certainty . therefore , if i have rent of s. per annum in fee issuing out of black acre , payable continually at the feast of easter , and i grant the same rent to you untill ye shall have received of the same rent l. in this case you shall have this rent for years ; for this hath reference to the express certainty , viz. the annuall rent , which is twenty shillings per annum , untill twenty one pounds be levied of the issues and profits , this is but a lease at will without livery , for it is not certain , that the land shall be every year of an annuall value . if a man hath mines hidden within his land , and leaseth his land , and all the mines within it , there the lessee may dig for them , for quando aliquis aliquid concedit , concedere videtur & id sine quo ●es ipsa esse non potest . there must not be a double lease in being at one time , as if a lease for years be made according to the statute , he in reversion cannot put but the lessee , and make a lease for life , or lives , according to the statute , nor è converso ; for the words of the statute be to make a lease for three lives , or one and twenty years , so as one or the other may be made , and not both . a lease of lands is as good without deed as with deed . but in a lease for term of life , it behoveth to give livery and seism upon the land , or else nothing shall pass by the grant , because they are called free-holds . libell . libell . every libell ( which is called samo●us libellus seu infamatoria scriptura ) is made either against a private man , or against a magistrate , or publique person ; the first deserves a severe punishment ; for although the libell be made against one , yet this incites all the same family , kindred , or socie●y to revenge ; the second is a greater offence , for it concernes not only the breach of peace , but the scandall of government . . although the private man or magistrate be dead at the time of making the libell , yet this is punishable : for in one case this incites others of the same family , blood , or society , to break the peace ; and in the other the libeller traduceth an● slandereth the state and government , which dieth not . . a libeller was to be punished either by indictment at the common law , or by bill , if he deny this , or ore t●enus , upon consession in the star-chamber , and according to the quality of his offence , he was to be punished by sine or imprisonment , and if the case be exorbitant , by pillo●y and loss o● his ears . . non refert , it skills not , whether the libeil be true , or the party against whom this is done , be of good or evil same . every infamous libell , aut est in scriptis aut sine scriptis : . in scriptis , when an epigram , or other writing is composed , or published to anothers disgrace , and it may be published verbis aut ●antilenis , as where this is malitiously repeated or sung in the presence of others . . traditione , when the libell , or any copy of it is delivered over to scandalize the party . famosus libellus sine scriptis may be . picturis , as to paint the party in a shamefull and ignominious manner . . signis , as to fix a gallowes , or other reproachfull and ignominious signes at the door of the party , or else-where . and it was resolved , m●●h . . and elizab. in the star-chamber in hallywoods case , that if any find a libell , and will p●eserv ▪ himself out of danger , if this be composed against a private man , the finder either may burn this , or presently shew it to the magistra●e : but if it concern a magistrate , or other publique person , the finder ought presently to deliver this to a magistrate , to the intent , that by examination and industry the authour may be found and punished . tria sequuntur defamatorem samosum . . pravitatis incrementum , increase of lewdness . . bursae decrementum , evacuation of purse and beggery . . conscientiae detrimentum , shipwrack of conscience . if one read a libell , or hear it read , this is no publication of it ; for before he read , or hear it read , he cannot know it to be a libell ; or if he hear , or read it , and laugh at it , this is no publication of it : but if after that he hath read , or heard it , he repear this , or any part of it in the hearing of others ; or after that he knows it to be a libell , reads it to others , this is an unlawfull publication of it ; or if he write a copy of it , and do not publish it to others , this is not a publication of the libell : for every one which shall be convicted , ought to be a contriver , procurer , or publisher of it , knowing it to be a libell . but it is a great evidence that he publisheth it , when he knowing it to be a libell writes a copy of it ▪ unless he can after prove that he delivered this to a magistrate to examine it , for then the subsequent act explains his precedent intention . liberty . liberty . this word liberty notes a priviledge held by grant or prescription , whereby a man enjoyes some favour beyond an ordinary subject . liberty from the law is the delivering us from that hand or power of the law , by which we were formerly held . ligeance . ligeance , is so called à ligando , being the greatest and highest obligation of duty and obedience that can be . it is , the true and faithfull obedience of a liege-man , or subject to his liege-lord or soveraign . ligeantia domino regi debita est lex . . perpetua . . originaria , sive naturalis sive nata , and this is alwaies absolute , and due by birth-right ▪ and is called alta ligeantia ; and he that oweth this , is called subditus natus . . data , aut per denizationem aut per naturalizationem . . temporaria , aut . localis , wrought by the law when an alien● that is in amity , cometh into england , fo● then he is within the kings protection , and owes a locall obedience or ligeance . . limitata , as when one is made denizen for life , of in tail . as the ligatures or strings do knit together the joynts of all the parts of the body , so doth ligeance joyn together the soveraign and all his subjects , quasi uno ligamine . between the soveraign and the subject , there is duplex & reciprocum ligamen ; quia sicut subditus regi tenetur ad obedientiam , ita rex subdito tenetur ad protectionem . there is praesidium due on the kings side , subsidium on the subjects part . in the acts of parliament , subjects are called liege-people , and the king the naturall liege-lord of his subjects ; therefore protectio trahit subjectionem , & subjectio protectionem . he should maintain and defend them , and they are bound to obey and serve him . ligeance is due only to the king , to his naturall body , therefore the indictment in treason concludeth , contra ligeantiae suae debitum . limitation . limitation . if a man give lands to a man , to have and to hold to him , and to the heirs males of his body , and to him and the heirs females of his body ; the estate to the heirs females is in remainder , and the daughters shall not inherit any part so long as there is issue male ; for the estate to the heirs males is first limited , and shall be first served , and it is as much to say , and after to the heirs females , and males in construction of law are to be preferred . livery . livery of seisin , is a solemnity that the law requireth for the passing of a free-hold , or lands or tenements , by delivery of sesin thereof . there be two kinds of livery of seisin , viz. a livery in deed , and a livery in law. a livery in deed , is when the feoffor taketh the ring of the door , or turf , or twig of the land , and delivereth the same upon the land to the feoffee , in the name of seisin of the land. a livery in deed may be two manner of waies by a solemn act and words , as by delivery of the ring , or hasp of the door , or by a branch or twig of a tree , or by a turf of the land ; and with these , or the like words , the feoffor , and feoffee , both holding the deed of the feoffment , and the ring of the door , hasp , branch , twig , or turf ; and the feoffor saying , here i deliver you seisin and possession of this house , in the name of seisin , and possession of all the lands contained in this deed ; or enter you into this house or land , and have and enjoy it according to the deed ; or enter into the house or land , and god give you joy ; or i am content you shall enjoy this land , according to the deed , or the like . a livery in law is when the feoffor saith to the feoffee , being in view of the house or land ( i give to you yonder land , to you , and your heirs , and therefore enter into the same , and take possession thereof accordingly ) and the feoffee doth accordingly in the life of the feoffor enter ; this is a good feoffment for signatio pro traditione habetur . but if either feoffor or the feoffee die before the entry , the livery is void . and delivery within the view is good , where there is no deed of feoffment : and such a livery is good , albeit the land lie in another countrey . there is a diversity between the livery of seisin of land , and the delivery of a deed ; for if a man deliver a deed without saying of any thing , i● is a good delivery ; but to a livery of leism of land words are necessary ; as taking in his hand the deed , and the ring of the door ( if it be an house ) or a turf or twig ( if it be of land ) and the feoffee laying his hand on it , the feoffor say to the feoffee , here i deliver to you seisin of this house , or of this land , in the name of all the land contained in this deed , according to the form and effect of the deed , and if it be without deed , then the words may be , here , i deliver you seisin of this house or land , to have and to hold to you for li●e , or to you , and the heirs of your body , or to you , and your heirs for ever . when ephron infeoffed abraham of the field of machpela , he said to him , agrum trado tibi , i deliver the field to thee . when one makes livery of sesin , this livery shall be taken most strong against him . and therefore if one give land to a man & haeredibus , this shall be a fee-simple to him , although suis be left out , and yet he gives not fee-simple expressly , but because every livery shall be taken most strongly against him that makes it . m. magistrate . magistrate , he is custos utriusque tabulae the keeper or preserver of both tables of the law. if any magistrate or minister of iustice in execution of their office , or in keeping of the peace , according to the duty of their office , be slain , this is murder , for their contempt and disobedience to the king and the law ; for it is contra potestatem regis & legis . if the sheriff , a iustice of peace , the chief constable , watchmen , or any which come in their aid , be killed in doing of their office , this is murder . for when any of the kings officers by process of law ( be it erroneous or not ) arresteth another in the kings name , or require the disturbers of peace to keep peace in the kings name , and they disobey tho kings command and kill him , reason requireth that this killing should be an offence of the highest degree in this nature , and that is murder of malice prepensed . maime . maime , ( membri mutilatio or obtruncatio ) is a corporall hurt , whereby one looseth a member , by reason whereof , he is less able to fight , as by putting out his eye , beating out his foreteeth . this offence of maim , is under all felonies deserving death , and above all other inferiour offences , so as it may be truly said of it , that it is inter crimina majora minimum , & inter minora maximum . vita & membra sunt in potestate regis . the li●e and members of every subject are under the protection of the king. in my circuit ( saith sir edward cook ) in anno . iacobi regis , in the county of leicester , one wright , a young , strong , and lusty rogue , to make himself impotent , thereby to have the more colour to beg , or to be relieved without putting himself to any labour , caused his companion to strike off his left hand , and both of them were indicted , fined and ransomed therefore . the cutting of an ear or nose , or breaking of the hinder teeth is no maim , but rather a deformity of body , than diminution of strength ; by a maim a member is hurt , or taken away , and the party thereby so hurt is made unperfect to fight . the party shall recover only dammages in maim . mainprise . mainprise , manucaptio is compounded of two french words , main , id est , manus a hand , and prins , id est , captus taken , as it were taken into their hands . it signifieth in our common law , the taking or receiving a man into friendly custody , that otherwise is or might be committed to prison , upon securtiy given for his forth-coming at a day assigned . such are called mainpernours , because they do receive him into their hands . mannour . mannour , manerium est nomen collectivum & generale , it comprehendeth houses , lands , gardens , trees , rents and services : manerium quasi manurium , because it is laboured with handy work by the lord himself ; or it may come from the french word manoir , id est , mansions ; because the lord remaineth there , and hath his house which is called , the principall house of the mannour . it cannot be a mannour unless there be a court baron belonging to it , and be time out of mind : it consists of demeans and services , if they be severed , the mannour is destroyed . maintenance . maintenance , manuten●ntia is derived of the verb manutenere , and signifieth in law a taking in hand , bearing up or upholding of quarrels , and sides , to the disturbance or hinderance of common right , culpa est rei se immiscere ad se non pertinenti . when one laboureth the jury , if it be put to appear , or if he instruct them or put them in fear , or the like ; he is a maintainer , and an action of maintenance lyeth against him . manutenentia est duplex , . curialis , in courts of justice , pendonte placito . . ruralis , to stirre up and maintain complaints , suits , and parts in the county other then their own , though the same depend not in plea. manumission . manumission , manumitter , which signifieth to make free , is properly to send one out of his hand , because so long as a slave continues in his servitude , he is in the hand of his master . marriage . marriage , a feme covert is not sui juris , but only sub po●estate viri , when a baroness marrieth one under the degree of a baron , by such marriage her dignity is determined ; for the rule is , quando mulier nobilis nupserit ign●bili desinit esse nobilis . but this rule is to be intended of a woman which attains nobility by marriage ; as by marriage of a duke , earl , or baron : for in such case , if after she marry under the degree of nobility , by such marriage with one which is ignoble , she loseth her dignity , which she had attained by marriage with one of the nobility . for eodem modo quo quid constituitur , dissolvitur . but if a woman be noble , as a dutchess , countess , baroness , by descent , although she marry with one under the degree of the nobility ; yet her birth-right remains : for this is annexed to the blood , and is character indelebilis . but if a dutchess by marriage marry a baron of the realm , she remaineth a dutchess , and loseth no her name , because her husband is noble . yet by the courtesie of england , if women get to any degree of estate , they never lose it , by marrying after more meanly ; bu● do still take place according to the estate of their first husband . the law tenders the speedy advancement of women , quia maturiora sunt vota mulierum quam ●i●orum . maxim . a maxim , is a proposition to be of all men confessed , and granted without a proof , argument or discourse , contra negantem principia , non est disputandum , antient principles of the law ought not to be disputed . it is better ( saith the law ) to suffer a mischief that is particular to one , then an inconvenience , that may prejudice many , lex citius tolerare vult privatum damnum quam publi cum malum . summa ratio est , quae pro religione facit . a statute directly against the law of god is void . the rule of the law is , nemo debet bis puniri pro uno delicto , and the divine saith , nemo bis agit in id ipsum . interest reipublicae ne quis re sua malè utatur . beneficium transit cum onere , qui sentit commodum sentire debet & omis . benignior sententia in verbis generalibus seu dubiis est praeferenda . interest reipublicae , ne malificia maneant impunita , & impunitas semper ad deteriora invitat . nihil tam conveniens est naturali aequitati , unumquodque dissolvi eo ligamine quo ligatum est . as no estate can be vested in the king without matter of record , so none can be devested out of him without matter of record . things are dissolved , as they are contracted . an obligation or other matter in writing , cannot be discharged by an agreement by word . in praesentia majoris cessat potentia minoris . the book cases are best proofs what the law is . argumentum ab authoritate , fortissimum est in lege . repellitur à sacramento insamis . quod ab initio non valet , in ●ractu temporis non convalejcet , & quae mala sunt in●h●ata à principio , vix est ut bono per agantur exitu . misprision . misprision , is when one knoweth that another hath committed treason , or felony , and will not discover him to the king , or to any magistrate , but doth conceal the same . in all cases of misprision of treason , the party offender shall forfeit his goods for ever , and the profits of his land for term of his life , and his body to prison at the kings pleasure . money . money , the king by absolute prerogative may make any forreign coyn lawfull money of england at his pleasure by his proclamation . if a man be bound to pay four hundred pounds at such a day , if he tender it in bags it is sufficient , for it cannot be counted in a day . lawfull money of england , either gold or silver , is of two sorts . viz. . the english money coyned by the kings authority . . and forreign coyn by proclamation made currant within the realm . coyn , cuna dicitur à cudendo , of coyning , in french coin signifieth a corner , because in antient time money was square with corners , as it is in some countries at this day . some say it is so called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , quia communis , moneta à monendo , because it sheweth the authour and value . every piece of money ought to have a certain form of impression which shall be cognoscibilis , & discernibilis , for as wax is not a seal without print , so metall is not money , without impression . monopoly . monopoly , it is an allowance by the king by his grant , commission or otherwise , to any person or persons , bodies politique or corporate , of or for the sole buying , selling , making , working , or using of any thing , whereby any person or persons , bodies politique or corporate , are sought to be restrained of any freedom or liberty that they had before , or hindred in their lawfull trade . cook 's part of his institutes c. . all grants of monopolies are against the antient and fundamentall laws of this kingdom . id ibid. all monopolies are against the great charter , because they are against the freedom of the subiect , and against the law of the land. cook 's part of instit. c. . monster . a monster born within lawfull matrimony , that hath not humane shape , cannot purchase , much less retain any thing , yet if he have humane shape , he may be heir , though he have some desormity in any part of his body . mortgage . mortagage , is derived of two french words , viz. mort , id est , mortuum , and gage , id est vadium , or pignus . and it is called in latin mortuum vadium or morgagium , to distinguish it from that which is called vivum vadium . as if a man borrow an hundred pounds of another , and maketh an estate of lands unto him , untill he hath received the said summe of the issues and profits of the lands , so as in this case neither money nor land dieth or is lost , and therefore it is called vivum vadium . mortmain . mortmain , some have said , that it is called manus mortua , quia possessio eorum est immortali● , manus pro possessione , & mortua pro immortali . others say , it is called manus mo●tua per antiphrasin , because bodies politick and co porate never die . others say , that it is called mortmain by resemblance to the holding of a mans hand that is ready to die , for that he then holdeth , he letteth not to go , till he be dead . these and such others are framed out of wit and invention , but the true cause of the name , and the meaning thereof was taken from the effects , as it is expressed in the s●atute it self , per quod quae servitia ex hujusmodi foedis debentur , & quae ad defensionem reg●i ab initio provisa fuerunt indebitè subtrahuntur , & capitales domini eschaetas suas amittant , 〈…〉 as the lands were said to come to dead hands , as to the lords , because by alienation in mortmain , they lost wholly their escheats , and in effect their knights services for the desence of the realm , wards , marriages , reliefs , and the like , and therefore it was called a dead hand , for that dead hand 〈…〉 ieldeth no service . notwithstanding the statute of mortmain , a 〈…〉 y one at this day may give lands for finding a 〈…〉 reacher maintenance , or a school , for the sta 〈…〉 te was made to restrain men from giving to su●rstitious uses , and not to good and charitable 〈…〉 es . mulier . mulier , hath three significations . . sub nomine mulieris continetur quoelibet foemina . . propri● subnomine mulieris continetur mulier , quae virgo non est . . appellatione mulieris in legibus angilae continetur uxor , & sic filius natus , vel filia nata ex justa uxore appellatur in legibus angliae filius mulieratus , seu filia mulierata , a son mulier , or a daughter mulier . if the bastard dieth , seised without issue , and the lord by escheat entreth , this dying seised shall not barre the mulier , because there is no descent . if the bastard enter , and the mulier dieth , his wife privement enseint with a son , the bastard hath issue and dieth seised , the son is born , his right is bound for ever , but if the bastard dieth seised , his wife enseint with a son , the mulier enter , the son is born , the issue of the bastard is barred . a young son which is born during the espousals of a lawfull wife , is called mulier or filius mulieratus , for in our laws mulier is taken for uxor . it is taken in our law for one that is lawfully begotten and born , and is alway used in comparison with a bastard , only to shew a difference between them and alwaies you shall find this addition to bastard eldest , and mulier youngest , when they be compared together . murder . murder , is a wilfull killing of a man upon malice prepensed or forethought , and seemeth to come of the saxon word mordren which so signifieth . if upon an affray made , the constable and others in his assistance come to suppress the fray , and to preserve the peace , and in doing their office , the constable or any of his assistants is slain , this is murder in the law , although the murderer knew not the party which was killed , and although the affray was suddain , because the constable and his a●sistants came by authority of the law to keep the peace , and to prevent the danger which may ensue by breaking of it , and for this the law adjudgeth it murder , and that the murderer had malice prepensed , because he opposeth himself againt the justice of the realm , so if the sheriff , or any of his bailiffs or other officers be slain in the execution of the process of the law , or in doing their office , or if a watchman be killed in doing his office , this is murder . if a thief , which offers to rob a true man , kill him in resisting the thief , this is murder of malice prepensed ; or if one kill another without any provocation , the law implyeth malice . the statute iac. reg. c. hath well provided , that that party that stabbeth , or thrusteth any person ( not having a weapon drawn , or that hath not first striken him ) so as he die thereof within six moneths after , shall suffer death as a willfull murderer . a. hath wounded b. in fight , and after they meet suddainly , and fight again , and b. killeth a. this seemeth murder , and malice shall be intended in b. upon the former hurt ; but now if a. had killed b. this seemeth but man-slaughter in a. for his former malice shall be thought to be appeased by the hurt he first did to b. if two fall out upon a suddain occasion , and agree to fight in such a field , and each of them go and fetch their weapon , and go into the field , and there in fight , the one killeth the other : here is no malice prepensed , for the fetching of the weapon and going into the field , is but a continuance of the suddain falling out , and the blood was never cooled : but it they appoint to fight the next day , that is malice prepensed . sir edward cook 's part of institutes c. . if a. put poison in a pot of wine , to the intent to poison b. and lay it in a place where he supposeth b. will come and drink of it , and by accident one c. ( to whom a. hath no ma●ice ) come , and of his own head take the pot , and drink of this ; of which poison he dies , this is murder in a. for he coupleth the event with the intention , and the end with the cause but if one prepare bats-bane to kill rats and mice , or other vermine , and leave this in some place to this purpose , and with no ill intent ; and one finding this , eat of it , this is not f●lony , because he which prepared the poison , had no evil or felonious intent . iohn sanders had a purpose to kill his wife , to the intent he might marry another whom he better affected , and opens his intent to alexander archer , and prayes his aid and counsell how he may effect it ; he counsels him to poison her . and to this purpose the said alexander buyes the poison , viz. arsenick and rose-acre , and gives this to sanders to minister to his wife . afterwards he gives his wife this in a rosted apple , and the wi●e eats a little part of it , and gives the remnant to her young child about three years old , and the said iohn sanders seeing this , reprehends his wife , and saith that apples were not good for such children , and she saith it was better for the child then for her ; and the child eats the impoisoned apple , which the father permits , to avoid suspicion ; afterward the woman recovers , and the child dies of the said poison . this was murder in sanders , though he bore no malice to his child , because he had an intent to kill a person : so if one lie in wait in a place to kill one , and another cometh to the place , and he which lies in wai● mistakes him , and kills him ; this is murder , being founded upon prepen●ed malice . it was a custom in old time , if one were found g●ilty in any appeal of murder , that his wife , and all the nearest of his kin which was murdered , should draw the felon , who committed the murder , by a long rope to the place of execution . if a peer of the realm be arraigned at the suit of the king upon an indictment of murder he shall be tryed by his peers , that is nobles ; but if he be appealed of murder by a sub●ect , his tryal shall be an ordinary jury of twelve freeholders , as appears edw. , . hen. . the town-ship shall be amerced for the escape of a murderer tempore diurno , although the murder was committed in the town-field , or lane , l. dyer p. . b. if a man be attainted of murder , he shall suffer pain of death , and shall forfeit lands , goods and cha●tels . mute . a prisoner may stand mute two manner of waies ; . when he stands mute without speaking of any thing ; and then it shall be enquired , whether he stood mute of malice , or by the act of god , and if it be found that it was by the act of god , then the judge of the court ex officio , ought to inquire whether he be the same person , and of all other pleas which he might have pleaded , if he had not stood mute . . when he pleads not guilty , or doth not directly answer , or will not put himself upon the enquest , to be tryed by god and the countrey . cook 's part of instit. c. . if a man stand mute in an indictment he shall be put to his penance , if in an appeal he shall be hanged , if in a case of treason , he shall be drawn and hang'd . n name . name , if a grant be made to a bastard , by the name of him which begot him , as is supposed ; this is good , if he be known by such a name . the penalty or forfeiture of players , prophanely using the name of god , is ten pounds , the one moity to the king , the other to him that will sue the statute , iac. . niefe . niefe , some have holden , that if a free-man take a niefe , by this marriage the wife shall be free for ever ; but the better opinion of our book● is , that she shall be priviledged during the cover 〈…〉 ture only , unless the lord himself marrieth hi 〈…〉 neife , and then some hold that she shall be free fo 〈…〉 ever . if a free-man marry a wife which is a neife t 〈…〉 another , she shall be free for ever , although the husband die and she survive , this is in favorem libertatis . nisi prius . nisi prius , is a judiciall writ , and so called because that word is in the writ . non compos mentis . non compos mentis , is a man of no sound memory , many times the latin word explaineth the true sense , and calleth him amens , demens , furiosus , lunaticus , fatuus , stultus , or the like : but non compos mentis is most sure and legall . non compos mentis is of four sorts . ideota which from his nativity by a perpetuall infirmity is non compos mentis . . he that by sickness , grief , or other accident wholly looseth his memory and understanding . . a lunatique , that hath some time his understanding and sometime not aliquando gaudet lucidis intervallis : and therefore he is called non compos mentis so long as he hath not understanding . lastly , he that by his own vitious act for a time depriveth himself of his memory and understanding as he that is drunken , but that kind of non compos mentis shall give no priviledge or benefit to him or his heirs ; and a discent shall take away the entry of an ideot , albeit the want of understanding was perpetual . so likewise if a man that becomes non compos mentis by accident be disseised and suffer a discent , albeit he recover his memory and understanding again , yet he shall never avoid the discent , and so it is a fortiori of one that hath lucida intervalla . if an ideot make a scoffment in fee , he shall in pleading never avoid it , saying that he was an ideot at the time of his scoffment , and so had been from his nativity . but upon an office found for the king , the king shall avoid the seossment for the benefit of the ideot , whose custody the law giveth to the king : so it is of a non compos mentis , and so it is of him qui gaudet lucidis intervallis , of an estate made during his lunacy ; for albeit the parties themselves cannot be deceived to disable themselves , yet twelve men upon this office may find the truth of the matter . but if any of them alien by fine or recovery , this shall not only bind himself , but his heirs also . non compos mentis cannot commit felony , because he cannot have a selonious intent . furiosus ( saith bracton ) non intelligit quid agit , & animo & ratione caret , & non multum distat à brutis . neither can he commit petty treason , as if a woman non compos mentis kill her husband ; but in some cases non compos mentis may comm●t high treason , as if he kill , or offer to kill the king , for he is caput & salus reipublicae , & à capite bona valetudo transit in omnes : and for this cause their persons are priviledged , that none ought to offer volence to them , but he is reus criminis laesae majestatis , and pereat unus ne pereant omnes . of ▪ an ideot which is so à nativitate the king hath custodiam , of non compos mentis he hath only provision , that is , of a naturall ideot , the king hath his lands to his own use ; but of non compos mentis , he hath not to his own use , but shall with the profits of the land maintain him , his wife , children and houshold . nobility . nobility . in antient time the senatours of rome were elected a censu of their revenues , so here in antient time , in conferring of nobility respect was had to their revenues , by which their dignity and nobility might be supported and maintained . gentry and arms is of the nature of gavelkind , for they descend to all the sonnes , every son being a gentleman alike , which gentry do not descend to all the gentry alone , but to all their posterity . but yet jure primogeniturae the eldest shall bear a badge of his birth-right , his fathers arms without any difference , for he ( as littleton saith ) is more worthy of blood ; but all the younger brethren shall give severall differences , & additio probat minoritatem . the common law calls none noble under the degree of a baron , and not as men of forraign countries , with whom every man of gentle birth is accounted noble ; for we daily see that both gentlemen and knights do serve in parliament as members of commonalty ; the law hath conceived such an opinion of the peaceable disposition of noble-men , that is hath been thought enough to take one of their promises upon his honour , that he would not break the peace against a man. the person of a baron ( who is a peer of parliament ) shall not be arrested by his body , . in respect of their dignity ▪ . because the law presumeth that they have sufficient lands and tenements wherein they may be distrained ; yet in case of contempt they may be arrested by a capias or attachment . about gentlemen have got honour in their famalies by the study of our common law. every baron of the parliament ought to have a knight returned of his jury , every earl or baron shall be amerced a li. the eldest sons of earls or vicounts are not barons in law , but in reputation . those which of antient time were created earls were of the blood royal , and to this day the king in all his appellations stiles them per nomen charissimi consanguinei nostri , and therefore their bodies shall not be arrested for debt , trespass , and they shall not be put in juries . those which were earls were created for two purposes : . ad consulendum regem & patriam tempore pacis . . ad defendendum regem & patriam tempore ●e●l● : and therefore antiquity hath given them two ensigns to resemble these two duties . . their head is adorned with a cap of honour , and a coroner ; and their body with a robe in resemblance of counsell . . they are girt with a sword , to shew that they should be faithfull , and loyall to defend their prince and countrey . nusans . nusans . a man shall not have an action upon the case for a nusans done in the high-way , for it is a common nusans ; and then it is not reason that a particular person should have an action . for by th● same reason that one person should have an action for this , every one may have an action for it , and then he shall be punished a times for one and the same cause . but if any particular person after the nusans made hath a more particular dammage then any other , for this particular injury he shall have a particular action upon the case . o. oath . an oath is an affirmation or denyal by any christian of any thing lawfull and honest , be ore one or more , that have authority to give the same for advancement of truth and right , call●ng almighty god to witness that his testimony is true . it is called a corporall oath , because he toucheth with his hand some part of the holy scripture . cook 's part of instit. c. . the law esteems it the best means to search out the truth , by the oaths of honest lawfull and indifferent persons , as god shall help him , that is , as he will expect the blessing of god in this life , and eternal salvation in the life to come : therefore an oath is aptly termed sacramentum , an holy band , or sacred tie , or godly vow : some do call it firmamentum veritatis , the foundation and ground of truth : and some vinculum pacis , and if it be taken and sound by a whole jury , consisting upon twelve persons or above , it is called veredictum , viz. a presentment of truth . obligation . obligation , is a word of his own nature of large extent , but it is commonly taken in the common law , for a bond containing a penalty with condition for payment of money , or to do , or suffer any act or thing , and a bill is most commonly taken for a single bond without condition . if a man be bound i● an obligation with condition , that if the obligor do go from the church of st. pet. in we●tmi●ster , to the church of st. pet. in rome within three hours , that th●n that obligation shall be void : the condition is void , and im●o●●ble . if a man be bound to pay pound a● any time at a place certain , the o●ligo cannot tender the money at the place when he will , ●●● then the obligee should be bound to perpetuall a●●●●●ince , and therefore the obligor in ●e●p●●● o● the 〈◊〉 of the time must give the ob●ige●●●●●●● that on such a day at the place limited he wil● pay the money , and then the obligee must attend there to receive it ; for if the obligor pay the money . he shall save the penalty of the bond ●●●●ve● . wher●●● a man is bound to pay ● li. at such a day and place , i● the obligee accept a le●s summe at the same day and place , this appears to the court to be no 〈◊〉 of the greate , but acceptance of the les● at a day before it is d●e , or at another place , or of some other thing ( as of an horse ) may be a s●●●sfaction when any act to be done by condition , is to be done by the sole act , or labour , or industry of a stranger , which act in no manner concerns the obligo● , obligee , or any other person , and no time is limited when this shall be done , it sufficeth the obligor , if the act be done in the life of him which ought to do this , as if i am obliged to you on condition , that i. s. shall go to rome or ierusalem , or that such a student in divinity at the university shall preach at pauls , or in the law , shall argue the matter in law in westminster ha●l , in these cases no time being limited , they have time to do it during their lives . occupation . occupation , is a word of art , and signifieth a putting out of a mans free-hold in time of warre , and it is all one with a disseinsin in time of peace , saving that it is not so dangerous . office . office. if an office be granted to two protermino vitarum suarum , by the death of one of them the grant shall be void ; for being an o●●●ce of trust there shall be no survivour of it . ●●● i● it be expressly granted to two , & di●tius ●●●um ●i●enti , the survivour shall have it . officia iudicialia non c●nceda●tur a●te ●am ●●cent : judicial offices cannot be granted in reversion , but ministerial may . by the law of england it is provided that no officer or minister of the king shall be ordained or made for any gift or brocage , favour or affection ; nor that any which pursueth by him , or any other privily or openly to be in any manner of office , shall be put in the same office or in any other , but that all such officers shall be made of the best , and most lawfull men , and 〈◊〉 . a law worthy to be written in letters of gold , but more worthy to be put in due execution . an office of skill and diligence , or annuity pro concilio impendendo , cannot be forfeited by attainder of treason . the king granteth an office to one at will , and li. ●ee during li●e pro officio illo : now if the king put him from this office , the ●ee shall cease . the officer or minister of law in the execution of his office , if he be resisted or assaulted , is not bound to fly to the wall ( as other subiects are ) for legis minister non tenetur in execution● officii fugere seu retrocedere . if a justice of the common place be made justice of the kings bench , though it be but hac vice , it determineth his patent of the common place ; for if he should be judg of both benches together , he should controll his own judgment : for if the common place erre , it shall be reformed in the kings bench. but a man may be justice of the common pleas , and chief baron of the exchequer simul & se●el . these words colore officii are alwaies taken in malam partem , and vary from these words virtute officii , or ratione officii , which are alwaies taken in bonam ●a●tem , and imply that the office is the just cause of the thing and the thing is pursuing the office : but the other words signifie an act ill done by pretence and countenance o● the office , and it carrieth the counterseit shew of duty , and the act it self hath a proper name , and is called extortion . as if an officer will take more for his fees then he ought , this is done col●re officii sui , but yet it is not part of his office , and it is called extortion , which is no other then robbery ; nay more hatefull , in as much as the other is apparent , and hath the visor o● vice ▪ but this appeareth under the visage of virtue , and so is more hard to be avoided , and by so much the more detestable . oxgauge . oxgauge , or oxgate , bo●a●a ter●ae , a word much used in our old books , and is as much land as an ox can till , by the grant of an oxgauge of land may pass medow and pasture . ordinary . ordinary , is he that hath ordinary jurisdiction in causes ecclesiasticall , immediate to the king and his courts of common law for the better execution of justice ; as the bishop or any other that hath exempt and immediate jurisdiction in causes ecclesiasticall . it is derived ab ordine , to put him in mind of the duty of his place , and o● that order and office that he is called unto . cook 's part of institutes c. . see more there . ordael ordalium . ordael ordalium , in the saxon language ordael , which is as much to say , as expers criminis , for or in that language is privative , and del is part , that is , not party , or not guilty . or signifies right . deale part ( say some ) whereof they had these kinds : or deal by fire which was for the better sort , and by water for the interiour . that of fire was to go blind●old over certain plough-shares made red hot , and layed an uneven distance one from another ▪ that of water was either of hot , or cold , in the one to put their arms to the elbow , in the other to be cast head-long . outlawrie . outlawrie , is the loss or deprivation of the benefit belonging to a subject , that is of the kings protection and the realm . heretofore none could be out-lawed but for felony , the punishment whereof was death , but now the law is changed . an out-lawed man had then caput lupin●m , because he might be put to death by any man , as a wol● that hatefull heast might . p. paine fort et dure . paine f●●t & dure is a speciall punishment for such as being arraigned for selony , refuse to put themselves upon the common tryall of god and the countrey , and thereby are m●●e . such a one shall be sent back to the prison whence he came , and be laid in some low dark house where he shall lie naked upon the earth , without any litter or other clothing , and without any rayment , save only to cover his p●ivy members , and he shall lie upon his back , with his head covered and his feet . and one arm shall be drawn to one quarter of the house with a co●d , and the other arm to another quarter , and ●ro● or stone shall be laid on his body so much as he can bear ; and the next day following he shall have three morsels of barley bread without drink and puddle water next unto the prison door , which pain may be called for t , in that it is so ponderous and grievous that he cannot bear or sustain it ; and dure because he shall not have release of it during his life , but shall die in it . pannell . pannell , is an english word , and signifieth a little part , for a pane is a part , and a pannell a little part ( as a pannell of wainscot , a pannell of a saddle , and a pannell of parchment , wherein the jurors names be written , and annexed to the writ ; and a jury is said to be impannelled ) when the sheriff hath entred their names into the pannell , or little piece of pa●chment in pannell● assisae . paravaile . paravaile . he is called tenant paravaile , because the law presumeth that he hath benefit and availe over the services which he payeth to the lord. parceners . parceners . if a partition be made between two coparceners of one and the self same land , that the one shall have the land from easter untill lammas , and to her heirs ; or the one shall have it the first year , and the other the second year alternis vicibus , there it ●s one self same land wherein two persons have severall inheritances at severall times . so it is if two coparceners have two severall mannors by descent , and they make partition , that the one shall have one mannor for a year , and the other the other mannor for the same year , and after that year , then she that had the one mannor shall have the other , & sic alternis vicibus for ever . if an earl that hath his dignity to him , and his heirs dieth , having issue one daughter , the dignity shall descend to the daughter , for there is no incertainty , but only one daughter , the dignity shall descend unto her and her posterity , as well as any other inheritance : but where there be more daughters then one , the eldest shall not have the dignity and power of the earl , that is to be a countess , but the king who is the sovereign of honour and dignity , may for the incertainty conferre the dignity upon which of the daughters he pleaseth . but there is a difference between a dignity or name of nobility , and an office of honour . for if a man hold a mannor of the king to be high constable of england , and die having issue two daughters , the eldest daughter taketh husband , he shall execute the office solely , and before marriage it shall be executed by some sufficient deputy . but the dignity of the crown of england is without all question descendible to the eldest daughter alone and her posterity , and so it hath been declared by act of parliament : for regnum non est divisibile . they are called parceners , because by the writ which is called de partitione facienda , the law will compell them to make partition of the land. there is an action in the civil law very like to this , called actio familiae here scundae . patron . patron . pollard . h . doth well distinguish the interest of the parson , patron and ordinary , the parson ( saith he ) hath a spiritual possession in the church , the ordinary hath charge of the church to see the cure served , the patron jus praesentandi to the church . parson . parson . persona in the legall signification is taken for the rector of a church parochial , and is called persona ecclesiae , because he assumeth and taketh upon him the parson of the church , and is said to be feised in jure ecclesiae , and the law had an excellent end herein , viz. that in his person the church might sue for and defend her right ; and also be sued by any that had an elder and better right : and when the church is full , it is said to be plena & consulta of such a one parson thereof , that is , full and provided of a parson that may vicem seu personam ejus gerere , persona impersonata : parson impersonee is the rector that is in possession of the church parochiall , be it presentative or impropriate , that may vicem seu personam ejus gerere . if a parson of a church waste the inheritance of his church to his private use in cutting down the trees , the patron may have a prohibition against him , for he is seised in right of his church , and his glebe is the dower of his church . parliament . parliament , is the highest , and most honourable , and absolute court of justice of england , consisting hereto●ore of the king , the lords of parliament and the commons . and again , the lords , viz. spiritual and temporall . and commons are divided into three parts , viz. into knights of shires or counties , citizens out of cities , and burgesses out of buroughs . all which have voices and suffrages in parliament . of the members of the court , some were by descent , as antient noblemen ; some by creation , as nobles newly created ; some by succession , as bishops ; some by election , as knights , citizens and burgesses . in the lords house , the lords give their voices from the paisne lord seriatum by the word of ( content ) or ( not content . ) the commons give their voices upon the question , by yea or no , and if it be doubtfull , and neither party yeeld , two are appointed to number them , one for the yea , another for the no : the yea going out , and the no sitting : and thereof report is made to the house . cook 's part of instit. c. . it is called parliament , because every member of the court should sincerely and discreetly parler la ment for the generall good of the common-wealth . this court the french calleth ●es estats , or l● assemblee des estats : in germany it is called a diet. it is legally called in writs and judiciall proceedings , c●m●une con●ilium regni angliae . the jurisdiction of this court is so transcendent , that it maketh , inlargeth , diminisheth , abrogateth , repealeth , and reviveth laws , statutes , acts and ordinances concerning matters ecclesiasticall , capitall , criminall , common , civill , martial , maritime , and the rest . the efficient causes of an act of parliament were the assent of the estates , viz. . of the king. . of the lords spirituall and temporall . and , . of the commons : and each without the other cannot perfect this work ; and yet untill the royal assent , it was but embrio in ventre matris , and by the royal assent coming last it took life and vigour . the assembly of the three estates , viz. the king , nobility and commons , which make the body of the realm , was called a parliament . for without all three ( as if it be done by the king and lords , but nothing spoken of the commons ) it was no act of parliament . and although the lords and commons agree to it , yet it was not an act untill the king had assented also , and his assent alwaies comes after their assent , and commonly this is the last day of parliament ▪ from this day forward it was an act , and not before , for before the kings assent , it was an issue in the mothers womb , which is not perfect untill it be born , for the statute was not full and perfect untill his assent given to it . but it shall be counted an act from the first day of the parliament , unless the certain time be specified when the act shall first take effect . but if the parliament have divers prorogations , and in the second o● third session an act is made , this shall not have relation to the day of the beginning of the parliament , viz. to the first day of the first session , but only to the first day of the same session , in which it is made . of acts of parliament some are introductory of a new law , and some are declaratory of the antient law , and some are of both kinds by addition of greater penalties or the like . cook 's th part of instit c. . one of the principall ends of ca●ling of parliaments is for the redress of the ●mischiefs and grievances that daily happen . cook 's th part of instit. c. . parque . parque , is a french word , and signifieth that which we vulgarly call a parke , of the french verb , parquer to inclose , it is called in domesday parcal , in law it signifieth a great quantity of ground inclosed , priviledged for wild beasts of chase by prescription , or by the kings grant ; the forfeiture for hunting or killing of deer in a park , is ll . or else treble dammages . peace . peace , the law of our land useth the word peace diversly : sometimes it is taken for protection or defence , so bracton calleth the writs of protection brevia de pace . sometimes it is taken for rrights , priviledges , and liberties , as in the oath of the king at his coronation : he sweareth servare ecclesiae dei , cleri & populi pacem ex integro , that he will maintain each degree , and estate of his subjects , as well ecclesiasticall as temporall . according to their severall customes , laws and priviledges , sometimes for an abstinence from injurious force and violence , so it is commonly taken , menacing beginneth the breach of the peace , assaulting increaseth it , and battery accomplisheth it . periury . perjury , if a man swear to one that he will pay to him twenty pound which he oweth him at a certain day , and at the day faileth of the paiment , he may not be sued in the spirituall court for the perjury , because an action of debt lieth at the common law for for the principall . but h. . it is said , that if a man buy an horse for five pound , solvendum , such a day , and sweareth to make payment at the day , but when the day is come , faileth of payment , an action of debt lyeth at the common law , and another at the spirituall law , pro laesione fidei . if a man calleth another perjured man , he may have his action upon his case , because it must be intended contrary to his oath in a judiciall proceeding : but for calling him a forsworn man , no action doth lie , because the forswearing may be extra judiciall . cook 's part of his instit. c. . pillory . pillory , cometh of the french pilorie , which proceeds from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 janua , and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 video , because one standing on the pillory , putteth his head through a kind of door . pipowders . pipowders , is a court belonging to markets and fairs , to yeeld justice to the buyers and sellers coming thither , which because they are most frequented in summer , the word was given of the dusty feet of the comers , from two french words , pies pouldrez , id est , pedes pulvere inquinatos . pleas . pleas. all pursuits and actions ( we call them in our english tongue pleas ) and in barbarous , ( but now usuall latin ) placita , taking the name abusive , of the definitive sentence , which may well be called placitum , or ▪ 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . the french call it arest , in which word after their custom , they do not found the●● . but we call placitum the action , not the sentence : and placitare barbarously for to plead in english agere , or litigare . pleas are divided into pleas of the crown , and into common or civil pleas. pleas of the crown are treason and felony , and misprison of treason and felony ; they are communia placita , not in respect of the persons , but in respect of the quality of the pleas. cook 's th part of instit. c. . all those pleas which touch the life or mutilation of man , are called pleas of the crown , and cannot be done in the name of any inferiour person , then he or she that holdeth the crown of england . and likewise no man could give pardon thereof , but the prince only . possession . possession . possessio est quasi pedis positio . in aequali jure melior est conditio possidentis , he that hath possession of land , though it be by disseism , hath right against all men , but against him that hath right . possession is either . actuall ( possessio in facto ) when a man entreth in deed into lands or tenements to him descended : . or possession in law possessio civilis , when lands or tenements are descended to a man , and he hath not as yet actually , and indeed entred into them . possession must have three qualities , it must be . long , . continual , and . peaceable . pound . pound , is either overt and open , so called because the owner may give his cattell meat and drink without trespass to any other , and there the cattell must be sustained at the perill of the owner , or covert and close , as if one impound the cattell in some part of his house , and then the cattell are to be sustained with meat and drink at the perill of him that distreineth , and he shall not have any satisfaction therefore . if a man distrain cattell for dammage feasant , and put them in the pound , and the owner that had common there make fresh suit , and find the door unlocked , he may justifie the taking away of his chattell in the writ of à parco sracto . if the owner break the pound , and take away his goods the party distreining may have his action de par●o fracto , and he may also take his goods that were distreined wheresoever he find them , and impound them again . praemunire . praemunire , is to be adjudged out of the kings protection , to lose all their lands and goods , and to suffer perpetuall imprisonment . some hold an opinion , that the writ is so called a praemunire , because it doth fortifie jurisdictionem jurium regionum coronae suae , the kingly laws of the crown against forreign jurisdiction , and against the usurpers upon them , as by divers acts of parliamentt appear . but in truth it is so called of a word in the writ , for the words of the writ are , praemunire facias prefatum a. b. quòd tum sit coram nobis , where praemunire is used for praemonerè , and so do divers interpreters of the civil and canon law use it , for they are raemuniti that are praemoniti , so odious was this offence of praemunire , that a man that was attainted of the same , might have been sla●n by any man without danger of law , because it was provided by law , that a man might do to him as to the kings enemy , and any man may lawfully kill an enemy . but queen elizabeth , and her parliament liking not the extream and inhumane rigor of the law in that point , did provide that it should not be lawfull for any person to slay any person in any manner attainted , upon any praemunire . if a man kill one which is attainted by a praemunire , this is not felony , for he is out of the kings protection , but it is contrary if one kill another , that is attainted of felony , and judged to die , but now by the statute of eliz. it is felony to kill one attainted by a praemunire . prebenda a praebendo auxilium , & consilium episcopo . prerogative . prerogative , littleton speaketh of the kings prerogative but twice in all his books , viz. sect . . and . and in both ▪ places as part of the laws of england , prerogativa is derived of prae , id est , ante & rogare , that is , to a●k or demand before hand , whereof cometh prerogativa , and is denominated of the most excellent part , because though an act hath passed both the houses of the lords and commons in parliament , yet before it be a law , the royall assent must be asked , or demanded , and obtained , and this is the proper sence of the wold . but legally it extends to all powers , preheminences , and priviledges , which the law giveth to the crown , bracton l. . in one place calleth it libertatem , in another privilegium regis . the king hath many rights of majesty peculiar to himself ( the learned lawyers term them sacra sacrorum , that is , sacred , and individua , inseparable , because they cannot be severed , and the common sort r●yall prerogatives , which they term the flowers of his crown , in which respect they affirm , that the regall materiall cown is adorned with flowers . his person shall be subject to no mans suit , his possessions cannot be taken from him by any violence , or wrongfull disseism , his goods and chattels are under no tribute , toll , nor custom , nor otherwise distreinable . the peoples liberty strengthens the kings prerogative , and the kings prerogative is to defend the peoples liberties , king charles his speech , in the d of his reign . the king may licence things forbidden by statutes ; as to coyn money which is made felony by the statute , and was before lawfull , for that is but malum prohibitum , but malum in se , as to leavy a nusance in the high-way , he cannot licence to do , but when it is done he may pardon it . all white swannes not marked , which have gained their naturall liberty , and are swimming in an open and common river , may be seased to the use of the king by his prerogative , the swanne is a royall bird , and so the whale , and sturgeon are royall fishes , and belong to the king by his prerogative . all those things , the property of which is not known , belong to the king by his prerogative . a grant to the king , or by the king to another , is good without attonement by his prerogative . prescription . prescription , is three-sold , viz. . personall , as the inhabitants of a town may prescribe for a way , &c. . reall , as incident to an estate , as for a man to prescribe that he and they whose estate he hath had common , &c. . locall , as where a man doth prescribe that within such a mannor , &c. prescription , is a title taking his substance of use , and time allowed by the law , as i. s. seised of the mannor of d. in see , prescribeth thus , that i. s. his ancestors , and all those whose estate he hath in the said mannor , have time out of mind of man had , and used to have common of pasture in such a place , being the land of some other , as pertaining to the said mannor . this properly we call a prescription . cook on lit. l. . c. . sect . . prescription shall hold sometime against the king , in such things as a man may prescribe in , as one shall prescribe for wayse and straise against the king. the king may also outstay his time , if it be found the tenant for term of life , hath forfeited his estate to the king , whereby the king ought to cease , if his grace sease not , but tarry till he be dead , so that he in the reversion entreth , he cannot then cease , so that maxim is not universally true , nullum tempus occurrit regi . the statute de praerogativa regis , quòd nullum tempus occurrit regi , is to be understood when the king hath an estate or interest certain and permanent , and not when his interest is specially limited ; for the time is the substance of his title , and in such case ocurrit regi . presentment . presentment , co●es of the french word presenter to set before one : and in the understanding of the law is a meer denuncia●ion of the jurors themselves , or of some other officer , as justice , constables , surveyors , &c. most commonly de proprio visu without the in●ormation or the prosecution of a third party of any offence inquirable in the court whereunto it is presented . lamb. eirenarch . pa. . presumption . presumption . there be three sorts of presumptions : . violent , which is many times plena probatio ; as if one be run through the body with a sword in an house , whereof he instantly dieth , and a man is seen in the house to come out with a bloody sword , and no other man was at that time in the house . . probable which moveth little ▪ . levis seu temeraria , which moveth not at all . so in a case of a charter of seossment , if all the witnesses to the deed be dead , then violent presumption which stands for a proof is continual and quiet possession . presumptio stat in dubio : it is doubted of , and yet it is accounted veritatis comes quatenus in contrarium nulla est probatio ut regula se habet , stabitur presumptioni donec probetur in contrarium . prison . prison . every suffering of a prisoner to escape is a breach of prison . if a man arrest one for felony , and after let him go at large whether he will , if he be arrested for felony , it is felony ; if for treason , it is treason ; if for a trespess , it is a trespass , & sic de singulis . privitie . privitie , is a word common as well to the english as to the french , and in the understanding of the common law is four-sold : . privies in estate as between the donor and donee , lessor and lessee , which privitie is ever immediate . . privies in blood , as the heir to the ancestor , or between coparceners . . privies in representation , as executors to the testator . and thly , privities in tenure , as the lord and tenant which may be reduced to two generall heads , privies in deed , and privies in law. priviledge . priviledge , privilegium is ius singulare , whereby a private man , or a particular corporation is exempted from the vigour of the common law , for that which is now called proprium , hath been called of old writers privum . proces . proces , it is called process , because it proceedeth ( or goeth out ) upon former matter , either original or judicial . this word process hath two significations , it is largely taken for all proceeding in all reall and personall actions , and in all criminall and common pleas , and processus derivatur à procedendo usque ad finem . . more safe for the proceeding after the originals is but of the plea before judgment . the difference between process and the precept or warrant of the justices . the precept or warrant is only to attach and convent the party before any indictment or conviction , and may be made either in the name of the king or of the justice . process is alwaies in the name of the king , and usually after an indictment ●ound or other conviction ; and because the king is a party , it must also be with a non omittas propter aliquam libertatem . proof . proof . bracton saith there is probatio duplex , viz. viva , as by witnesses , viva voce , and mortua ; as by deeds , writings , instruments . a wife cannot be produced either against or for her husband , quia duae sunt animae in carne una , and it might be a cause of implacable discord between the husband and the wife , and a mean of great inconvenience ; but in some cases women are by law wholly excluded to bear testimony , as to prove a man to be a villein ; mulieres ad probationem status hominis admitti non debent . property . property , if plate be stollen , and sold openly in a scriveners shop , on the market day , as every day is market day in london , saving sunday , this sale shall not change the property , but the party shall have restitution : for a scriveners shop is not a market overt for plate , for none will search there for such a thing , but if the sale had been openly in a gold-smiths shop in london , so that every one which passed by the shop might have seen it , this would have altered the property ; but if the sale be in a gold-smiths shop , either behind a hanging or cupboard , so that one passing by the shop cannot see it , this shall not change the property , so if the sale be not in the shop , but in a warehouse , or other place of the house , this shall not change the property , for it is not in a market overt , and none will search there for his goods . there can be no property of birds , fowls , wild beasts , in any person , unless they be tame , nevertheless , the hawks , or herons that build in the ground of any person , be adjudged to belong to him that oweth the ground . some things there are , the property whereof the law cannot vest in any , and therefore it leaveth them to the occupant , that is , to him that can seise them as things which are by nature ferae naturae , as beasts , birds , or fishes , being in their own liberty , and such things are no longer any mans , then when they are in his possession or custody , for when they have escaped and recovered their naturall liberty , then they cease to be his . the nature of bees is wild , and therefore when a swarme of them lighteth upon thy tree , they are no more thine before they be covered with thy hive , then hawks which have made their nests in some of thy trees , or doves in thy dove-house , for though the young birds be thine , whereof thou maist bring an action of trespass , quare vi & armis pullas esperuiorum suorum in bosco nidificantium , or columbas columbaris sui caepit . here he shall not use this word suos in his writ , for that implyeth a contradiction . the nature of doves is wild , neither is it materiall that by custom they are wont avolare & revolare , to fly from home , and return home , and in such things which are tame , and by custom are wont to depart , and yet to return , this rule is allowed , that so long they may be said to be thine , as they have animum revertendi . felony cannot be committed in taking of beasts that be savage , and untamed at the time of taking , nor for taking of doves being at large in the river , for such taking is not contr●ctatio rei alienae , sed quae est nullius in bonis . but when such things are made tame by any labour , and cost , the property of them is changed , and the nature altered , and then if a man take them out of my possession , a man may have an action . it is felony to take young pigeons , or young hawks out of their nests before that they can fly , so to take fishes kept in a trunk . to take tame deer is selony , i● the taker know it to be tame . but the nature of hennes and geese is not savage , and therefore if they shall fly away , though they be past thine eye-sight , notwithstanding in what place soever they be , they cease not to be thine , and whosoever detaineth them , is punishable by way of action . there be three manner of rights of property . . absolute , this property a man cannot have in any thing which is ferae naturae , but only in such things as are domitae naturae . . qualified . . possessory , these properties a man may have in things ferae naturae , and he may attain to them . . by industry , either by taking them only , and yet such things are his no longer , then they be in his possession or custedy , or by making them mansueta , id est , manui assueta , or domestica , id est , domui assueta : but in these past , a man hath but a qualified property , so long as they remain tame , and so long felony may be committed by taking them away , but if they attain to their naturall liberty , and have not animum revertendi , then the property of them is lost . . ratione imp●tentiae & loci , as where a man hath young goshawks , herons , or the like , which are ferae naturae , and do breed ( or ayre ) in his ground , he hath a possessory property in them , so as if one take them when they cannot sly , the owner of the soyl may have an action of trespas , and to take these away is selony . but when a man hath beasts , or fowles that be savage , and in their wildness ratione privilegii scil. by reason of a parke , or warrein , ( as deer , hares , conies , ) phesants , or partridges , he hath no property in them , therefore in an action quare parcum , or warrenam , regit & intravit & tresodamas , lepores , cuniculos , phasianos , perdices , &c. ib idem invenit , cepit , & asportavit , he shall not say suos , for that he hath no property in them , but they belong unto him , ratione privilegii , ( for his gain and pleasure , so long as they remain in the place priviledged . and if the owner of the park die , his heir shall have them , and not his executor , or administrators , for that without them the parke ( which is an inheritance ) is not compleat , neither can felony be committed by taking them . if a man find an hawk that was lost , and he do not sorthwith bring it to the sheriff to be proclaimed , but do steal and carry it away , this is felony . if a man make cony-burrows in his own land , which increase to so great number , that they destroy the land of his neighbour next adjoyning , his neighbour cannot have an action upon the case against him , which makes the said cony-borrows , for now as the conies come upon his neighbours land , he may kill them , for they are ferae naturae , and he which makes the cony-burrows hath no property in them , and he shall not be punished for the dammages which the conies made , in which he hath no property , and which another may lawfully kill , and it was resolved in this case that none may erect a dove-coat , but the lord of the mannor , and if any do , that he may be punished in the leet , but no action of the case lyeth by any particular man , for the infiniteness of the actions which may be brought . protection . protection , there be three things whereby every subject is protected , viz. rex , lex , & rescripta regis , the king , the law , and the kings writs . the law is the rule , but it is mute , the king judgeth by his judges , and they are lex loquens . the process and the execution which is the life of the law , consisteth in the kings writs , so that he that is out of the protection of the king , cannot be aided or protected by the kings law , or the kings writs , rex tuetur legem & lex tuetur jus . proviso . proviso , this word hath divers operations sometimes it worketh a qualification or limitation , sometime a condition , and sometime a covenant . publike . publike , necessity priviledgeth only quoad jura privata , for in all cases if the act that should deliver a man out of necessity to be against the common-wealth , necessity excuseth not for privilegium non valet contra rempublicam , as another saith , necessitas publica major est quam privata . if in danger of tempest those that are in the ship throw over other mens goods , they are not answerable : but if a man be commanded to bring ordinance or amunition to relieve any of the kings towns that are distressed , then he cannot for any danger of tempest justifie the throwing of them overboard . if husband , and wife joyn in committing treason , the necessity of obedience doth not excuse the assence as it doth in selony , because it is against the common-wealth . purchase . purchase , is when one cometh to lands by con veyance , or title . an infant , or minor , ( that is any that is under the age of twenty one years ) hath without consent of any other capacity to purchase , for it is intended for his benefit , and at his full age he may agree thereunto , and perfect it , or waive and disagree to the purchase , and so may his heirs after him , if he agreed not thereunto at his full age . a man of non sane memory may without the consent of any other purchase lands , but he himself cannot waive it , but if he dy in his madness , or after his memory recovered without agreement thereunto , his heir may waive and disagree to the state , without any cause shewed . an hermophradite may purchase according to the sex which prevaileth . a wife ( uxor ) is a good name of purchase , without a christian name , and so it is if a christian name be added , and mistaken , as em for emelin , for utile per in utile non vitiatur . but the queen the consort of the king of england is an exempt person from the king by the common law , and is of ability and capacity to purchase , and grant without the king , purchases are good in many cases by a known name , or by a certain description of the person , without either sirname , or name of baptism , as uxori i. s. or primo genito filio , or filio natu minimo , i. s. or omnibus filiis , & fil●●● us . a bastard having gotten a name by reputation may purchase by his reputed or known name , to him and his heirs , although he can have no beir . persons desormed having humane shape , ideots , mad men , leapers , bastards , deaf , dumb , and blind minors , and all other reasonable cratures , have power to purchase , and retain lands or tenements . a monster born within lawfull matrimony , that hath not humane shape , cannot purchase , much less retain any thing . the same law is , de professis & mortuis seculo , for they are civiliter mortui . if the tenant holdeth by ●ealty , and a bushell of wheat , or a pound of comyn , or of pepper or such like , and the lord purchaseth a parcell of the land , there shall be an apportionment , as well as if the rent were in money : and yet if the rent were in one grain of wheat , or one seed of comyn , or one pepper-corn , by the purchase of past , the whole should be extinct , because when that thing which is extracted out of the land comes to the land again , it shall be naturally extinguished , for that is revolutio ad materiam primam . but if an intire service be pro b●no publico , as knights service , cas●le gard , cornage pro defensione regni , for the defence of the realm , or to repair a bridge or a way , to keep a beacon , or to keep the kings records , or for advancement of justice and peace , as to aid the sheriff , or to be constable of england , though the lord purchase part , the service remaines , so it is if the tenure be pro opere dev●tionis sive pietatis , as to find a preacher , or to provide the ornaments of such a church , or pro opere charitatis , as to marry a poor virgin , or to bind a boy apprentice , or to feed a poor man. q. quarrels . quarrels , ▪ querela à querendo . this properly concerneth personall actions , or mixt at the highest , for the plaintiff in them is called querens , and in most of the writs it is said queritur . and yet if a man release all quarrels ( a mans deed being taken most strongly against himself ) it is as beneficiall as all actions , for by it all actions reall and personall are released . r. ransome . rans●me , signifieth properly a summe of money , paid for the redemption of a captive , and is compounded of re and emo , that is to redeem , or buy again . there is a manifest difference between a ransome and an amerciament . for ransome is ever when the law infflicteth a corporall punishment by imprisonment , but otherwise it is of an amerciament . rape . rape . raptus is when a man hath carnall knowledge of a woman by force , and against her will. but if the woman conceive that is no rape , for she cannot conceive unless she consent . this word rape is so appropriated by law to this case , as without the word ( ●●apuit ) it cannot be expressed by any periphrasis or circumlocution ; for carnaliter cognovit eam , or the like will not serve . one w. d. was arraigned in the kings bench upon an indictment of rape of a girl of years old , and not above , viz. quod ipsam felonic● rapuit & carnaliter cognovit . he pleaded that he was a sc●t known and prayeth for his triall per medietatem linguae , and he could not have it ; because a scot is not accounted here for an alien , but rather a subiect , and the scottish language is meer english. by good evidence of divers grave women he was found guilty , but the court doubts of the rape in so tender years : but if she had been nine and over it would have been otherwise . in bracto●s time ravishers were thus punished , they lost their eyes and stones , for they calorem stupri induxerunt . rebouter . rebouter , is a french word , and is in latin repellere , to repell or bar ; that is in the understanding of the common law , the action of the heir by the warranty of his ancestor , and this is called to rebut , or repell . record . record , is derived of recorder to remember , as the poet saith , si ritè audita recorder , if a record once say the word , no man shall be received to averr or speak against it , or impugne the same , no , though such record contain a manifest or known falsehood , tending to the mischief , and overthrow of any person . the records are vetustatis & veritatis vestigia , the lively representations of time and truth , and reputed the treasures of the kingdom . the kings excellency is so high in the law , that no frce-hold may be given to the king , nor derived from him but by matter of record . a record or sufficient matter in writing are good memorials , for litera scripta manet . and therefore it is said when we will by a●y record or writing commit the memory of any thing to posterity , it is said tradare memoriae . and this is the reason that regularly a man cannot prescribe or alledge a custom against a statute , because that is matter of record . record is a memoriall or remembrance in rolls of parchment , of the proceedings and acts of a court of justice , which hath power to hold plea according to the course of the common law , of reall or m●xt actions , or of actions quare vi & armis , or of such personall actions , whereof the debt or dammage amounts to forty shillings or above , which we call courts of record , and are created by parliament , letters patents , or prescription , legally records are rostrained to the rolls of such only as are courts of record , and not rolls of inferiour , nor of any other courts which proceed not secundum legem & consuetudinem angliae , and the rolls being the records or memorials of the judges of the courts of record , ) import in them such incontrolable credit and verity , as they admit no averment , plea or proof to the contrary . and if such a record be alledged , and it is pleaded that there is no such record , it shall be tried only by it self , and not by witness or jury . register . register , is the name of a most antient book , and of great authority in law , containing all the originall writs of the common law : it is twofold , viz. registrum brevium originalium , & registrum brevium iudicalium , it is a french word and signifieth a memoriall of writs . relation . relation , is a species of fictions in law , making a thing done at one time to be accepted , reverted , and as it were repuld , or to have its operation as is it had been done at another time , past verbi gratiâ . a. doth bargain , and sell lands to b. in august by indenture , which is not inrolled untill oct. following , yet this hath such relation to the date of the indenture , that if a. offer that , and before the inrolment become bound in a statute or grant a rents charge , or make a lease for years , or take a wise , or committed felony , yet shall none of these be of any force to charge or prejudice the state of b. for that the law judgeth him now owner by relation , as from the time of the date , yet if a servant depart in august , for some great breach with his master , do kill his master in october , this is in law petty treason , as if he had continued servant when he did the fact , because it relates to the malice concerned , when he was his servant . release . release , is the giving or discharging of the right or action which any hath or claimeth against another , or his land , laxare is properly to put prisoners in setters at liberty , and relaxare is to do this often , and metaphoricè relaxare is to put at liberty settered estates and interests , and to make them absolute . relief . relief , as in antient time the senatours of rome were elected à censu of their revenues , so here in antient time , in conserring of nobility respect was had to their revenues , by which their dignity and nobility may be supported and maintained , and so a knight ought to have li. per annum , a baron knights fees , and a quarter , an earls knights fees , and alwaies the fourth part of such revenue which is requisite , by the law to the dignity shall be payed to the king for relief , as the relief of a knight is ll . which is the th part of ll . the revenue of a knight , and the relief of a baron is at marks which is the th part of his revenue , viz. marks , and includeth knights fees ; and a quarter ; and the relief of an earl is a ll . which is the th part of of ll . his revenue : the relief of a marquess marks , his revenue being marks : the relief of a duke shall amount to ll . and by consequent his revenue ought to be ll . per annum ; for every one of the nobility is presumed in the law to have sufficient frank-tenement ad sustinendum nomen & onus . remainder . remainder , is a remnant of the estate of the grantor , or a residue of an estate in lands depending upon a particular estate , and created together with the same ; and in law latin it is called remanere . there is a diversity between a remainder limited by particular name , and by a generall name . for a remainder limited by generall name may be good , although the person be not in esse at the time of the remainder limited ; as if a lease for life be made the remainder to the right heirs of i. and s. which is alive , this remainder may be good , and yet he hath no heir at the time of the remainder limited , the same law is of a remainder primo genito filio , but a remainder limited in particular , by name of baptism and sirname is not good if the person be not in esse . if the person that is to take the remainder be not in rerum natura , as if a lease for life be made the remainder to the right heirs of i. s. i. s. being then alive , it sufficeth that the inheritance passeth presently out of the lessor , but cannot rest in the heir of i. a st. for that living his father he is not in reram natura , for non est haeres viventis : so as the remainder is good upon the contingent , viz. if i. s. die during the life of the lessee . remainder is a residue of the estate at the same time appointed over : reversion is a residue of the estate not at the same time appointed over : reversion is ad dominum aut ejus haeredes unde jus primo derivatur remainder ad tertium aliquem qui neque dominus neque tenens in praesente est . remittes . remitter , a french word , it signifieth to restore , and importeth a restitution of possession unto a man antient right . it is derived of the latin verb reomittere , which hath two significations , either to restore , and set up again , or to cease . rents . rents , rent paid yearly for land , or other things , is call'd in latin reditus a reddendo , because it is yearly yeelded or restored for the lands , rather à redeundo quia retr● it : because it doth return to the lessor or donor , for the issues and profits of the land , and in english it is called a rent , the french word rentor , to rate or assess a price . tenure by rents is called vivi reditus , because the lords and the owners thereof do live by them . a feme sole lessee for life rendring rent , takes a husband , the rent arere , the wife dieth though here be no recovery in the wives life time , yet because the baron took the profit , he is still chargeable in a writ of debt for the rent , for qui sentit commodum sentire debet & onus . for rent payable at a day , the party hath all the day till night to pay it , but i● it be a great summe as five hundred , or a ll . he must be ready as long before the sun-set , as the money may be told : for the other is not bound to tell it in the night . replevin . replevin , is derived of replegiare , to redeliver to the owner upon pledges or surety : it had its originall of the word pledges , which denoteth them that undertake for the party , that he shall abide to be justified by the law. goods may be replevied two manner of waies , viz. by writ , and that is by the common law , or by the pleinte , and that is by the statutes for the more speedy having a gain of their cattell , and goods . replegiare is compounded of re and plegiare , that is to redeliver upon pledge or sureties . resceit . resceit , is in the civil law called admissio tertiae persone pro interesse , in our law when one is sued whose estate is so weak that he cannot defend full suit , then is another who is better able admitted up payer ; sometimes receit i● sur receit , this is against rule ) as , a wife being tenant for life is received upon the default of her husband , and after makes default he in reversion shall be received ; so if baron and feme be received , and after baron make default the feme shall be received . rescous . rescous . it is an antient french word , coming from rescourrer , that is , recuperare to take from , to rescue , or recover rescous is a taking away , and setting ●at liberty against law , a distress taken , or a parson arrested by the process or course of the law. there is a rescous indeed , and a rescous in law : of the first hath been spoken . a rescous in law is when a man hath taken in distress , and the cattell distreined , as he is driving of them to the pound , to go into the house of the owner , if he that took the distress demand them of the owner , and he deliver them not , this is a rescous in law. reservation . reservation , cometh of the latin reservo , that is to provide for store . as when a man departeth with his land , he reserveth or provideth for himself a rent for his own lively-hood . and sometime it hath the force of saving or excepting ; so as sometime it serveth to reserve a new thing , viz. a rent , and sometime to except part of the thing in esse , that is granted . retraxit . retraxit , is so called , because that word is the effectuall word in the entry . the difference between a non-suit and a retraxit , is ever when the demandant or plaintiff is present in court. a non-suit is ever upon a demand made , when the demandant ▪ or plaintiff should appear , and he makes default . a retraxit is a barre of all other actions , of like or inferiour nature . q●● semel actionem renunciavit amplius repetere non potest . but regularly non-suit is not so , but that he may commence an action of like nature again . for it may be that he hath mistaken somewhat in that action , or was not provided of his proofs , or mistook the day , or like . reversion . reversion , it hath a double acception in our law , the one is , jus revertendi cum status possessionis defecerit : and this is but an interest in the land when the occupation and possession of it shall fall , and so it is commonly taken . . when the possession and estate which was parted for a time ceaseth , and is determined in the persons of the aliens , assignees , grantees , or their heirs , and shall effectually return to the donor , his heirs or assignees whence it was derived . this is the most apt and proper signification of the word , which is nomen verbale , and derived of the verb revertor , & aptè dici non potest reversio ; antequam revertatur in facto . a reversion is where the residue of the estate alwaies doth continue in him that made the particular estate , or where the particular estate is derived out of his estate . cook on lit. l. . c. . sect . . right . right . ius or right in generall signification includeth not only a ●ight for the which a writ of right doth lie , but also any title or claim either by force of a condition , mo●●●ain or the like , for the which no action is given by law , but only an entry . there is ius proprietatis a right of ownership : ius p●ssessionis , a ●ight of seis● or possession : and ius proprietatis & possessionis ; a right both of property and possession ; and this is antiently called ius duplicatum . for example , if a man be disseised of an acre of land , the disseisee hath ius proprietatis , the disseisor hath ius possessionis , and if the disseisee release to the disseisor , he hath ius proprietatis , & possessionis dormit aliquando ius , moritur nunquam : for of such an high estimation is right in the eye of the law , as the law preserveth it from death and destruction , troden down it may be , but never troden out . ius sive rectum , signifieth properly and specially in writs and in pleas when an estate is turned to a right , as by a discontinuance , dissesin , where it shall be said , quod ius descendit & non terra . but right ( also ) doth include the estate in esse in conveyances ; and therefore if the tenant in fee-simple make a lease for years , and release all his right in the land to the lessee and his heirs , the whole estate in fee-simple passeth . ius est sextuplex : . ius recuperandi : . intandi : . habendi : . retinendi : . percipiendi : . possidendi . riot . riot , is where three ( at the least ) or more do some unlawfull act , it comes from the french word riottor , id est , rixari , scold or brawle . robbery . robbery , is so called , because goods are taken as it were de la robe , from the robe , that is from the person . it is when a man taketh any thing from the person , or out of the possession of another seloniously . a robbery was done in ianuary after the sun-setting , during twilight , and it was adjudged that the hundred should answer for it , because it was convenient time for men to travell , or be about their works or businesses , and with this accords the book in . edw. . tit coronne . that if one kill another at the hour of the evening and escape , by the common law the town shall be amerced , for this is counted in the law part ▪ of the day . a man in time of divine service upon the sabbath day was rob'd , mountague chief justice was of opinion that the hundred should not be charg'd , but doderidge , sir iohn crook , and hawtain justices , were of contrary opinion , that the hundred should be charged , and so it was adjudged termino michaelis . although the thing so taken be not to the value but of a penny , yet it is felony for which the offender shall suffer death , and shall not have the benefit of his clergy , not so much for the value of the goods taken , as for terrifying the party robbed , a putting him in dread and fear of his life . he that robbeth any dwelling house , or out-house belonging to it in the day time , of the value of s. whether it be money , goods or ca●tels shall not have his clergy . if a bailiff of a mannor , or a receiver , or a factor of a merchant , or the like accountant be robbed , he shall be discharged thereof upon his account . but otherwise it is of a carrier , for he hath his hire , and thereby implicitely undertaketh the safe delivery of the goods delivered to him , and therefore he shall answer the value of them if he be robbed of them . so if goods be delivered to a man to be safely kept , and after those goods are stollen from him , this shall not excuse him , because by the acceptance he undertook to keep them safely , and therefore he must keep them at his perill . so it is if goods be delivered to one to be kept ; for to be kept and to be safely kept is all one in law : but if goods be delivered to him to be kept as he would keep his own , there if they be stollen from him without his default or negligence , he shall be discharged . so if goods be delivered to one as a gage or pledge , and they be stollen he shall be discharged , because he hath a property in them , and therefore he ought to keep them no otherwise then his own : but if he that gaged them tendred the money before the stealing , and the other refused to deliver them , then for this default in him he shall be charged . if a. leave a chest locked with b. to be kept , and taketh away the key with him , and acquainteth not b. what is in the chest , and the chest together with the goods of b. are stollen away , b. shall not be charged therewith , because a. did not trust b. with them as th●s case is . rogue . rogue . this word is but a late guest in our law , for the elder statutes call such a one a vu●an● strong or sturdy begger and vag●bond , and it seemeth to be se●ched from the latin r●galor , an asker or beggar , or the french , rogue 〈…〉 d est arrogans . rout . rout , is so called , because they do move and proceed in routs and numbers . the difference ●etwixt an unlawfull assembly , a rout and riot , ●s this , when three or more do meet to do an un●awfull act , this is an unlawfull assembly , when they move being weaponed from the place of their meeting , towards the place where they purpose to do an unlawfull act , ( though they do it not ) this is a rout. when with unlawfull weapons , they do an unlawfull act , this is a riot . an unlawfull assembly may well be called an introduction , a rout , a persecution , and a riot , an execution . s. seisin . seisin or seison , is common as well to the english as french , and signifieth in the common possession . whereof seisina a latin word is made , and seisire a verb. seisina . seisina is derived of à sedendo , for untill he have seisin , all is labour and grief , but when he hath seisin , he may sedere & acquiescere . sergeants . sergeants are so called à serviendo , & à servando , or conservando , for they are conservators of the law and justice , and may be stiled as well servantes leges , as servientes ad legem . sheriff . sheriff or shireve , is derived of two saxon words , viz. shire comitatus , which cometh of the saxon verb , shiram id est partiri , because the whole realm is parted , and divided into shires ▪ and reve praefectus , or praepositus , so as sheriff is ●raefectus provinciae , or comitatus , keeper of the shire or county , the words of his patent be commissimus vobis custodiam comitatus nostri . and he hath triplicem custodiam , a three-fold custody , viz. . vitae iustitiae , for no suit begins , and no process is served but by the sheriff . . vitae legis , he is after long suits , and chargeable to make execution , which is the l●●e and fruit of the law. . vitae reipublicae , he is principalis conservator pacis , within the county , which is the life of the common-wealth . he is called in lain vice comes , id est , vice comitis , that is instead of the earl of the county , who in antient time had the regiment of the county under the king , sheriffs were great officers , and ministers of justice long before the conquest , and justices of peace had not their being untill almost years after , viz. in the first year of edward the d. when the king makes a sheriff , durante beneplacito , although he may determine his office at his pleasure , yet he cannot determine this in part , nor abridge the sheriff of any thing incident or appurtenant to his office , for the office is intire , and it ought to continue so without any fraction or diminution , unless it be by act of parliament . socage . socage , the legall termination of ( agium ) in composition signifieth service or duty , as homagium the service of the man , escuagium servitium scuti socagium servitium socae h●●agium : the duty to be paid for a hide or plough-land , and so of cornagium , burgagium , villenagium . when the lord infeoffes another of arable land to hold of him in socage , that is , per servitium socae , as every such tenure at the beginning was , as littleton saith : the feoffee ad manutenendum servitium socae , shall have common in the wastes of the lord for his necessary beasts which dung his land. . because it was tacitely implyed in the feoffment , for the feoffee cannot dung his land without beasts , and they cannot be sustained without pasture , and per consequens the feoffee shall have ( as a thing necessary and incident ) common in the wastes and lands of the lord. . for the maintenance ▪ and advancement of tillage which is much regarded and favoured in the law. serieanty . serjeanty , cometh of the french word sergeant , that is satelles , and it is the same with service . it is called magna serjeantia , or magnum servitium ; great service as well in respect of the excellency and greatness of the person to whom it is to be done ( for it is to be done to the king only ) as of the honour of the service it self : and littleton saith , it is greater and more worthy then knights service . this tenure hath speciall properties . . to be holden of the king only . . it must be done when the tenant is able in proper person . . this service is certain and particular . . the relief due in respect of this tenure differeth from knights service . . it is to be done within the realm . . it is subject to neither aid pour faire fitz chivalier . or file marrier . . it payeth no escuage . statute . statute , cometh of the latin word statatum , which is taken for an act of parliament made by the king , the lords , and commons . statutes . statutes . anno gtio . caroli regis . c. . no carrier with any horse or horses waggon , men with waggons , waynemen with waynes , nor drovers with cattell shall travell upon the lords day , twenty shillings forfeit for every offence , every dutcher that kills or sells victuals on that day , shall forfeit for every offence s. d. the offences being done in view of any justice of peace , mayor , &c. or proved upon oath by two witnesses , or by confession of the offendor . all such forfeits shall be leavied by any constable , or church-warden , by warrant from any justice , mayor , and by distress , sale of goods , or recovered by any person that will sue for the same by bill , plaint , or information in any of the kings courts of record in any city or town corporate , to the use of the poor of the parish , saving that the justice , mayor , may reward the informer according to their discretions : so that such reward exceed not the third part of the for-●eitures , to continue to the end of the first se●●●on of the next parliament . anno . caroli regis , c. . no meetings of people out of their own parishes on the lords-day within this realm , or the dominions thereof , for any pastime whatsoever . nor any bear-baitings . bull-baitings , common playes , or other unlawfull exercises used by any within their own parishes , every person o●●ending , to forfeit for every offence ● . d. to the poor of the parish . one justice of peace of the county , or the chief officer or officers of any city or borough , upon view or confession of the parties , or proof of one or more witnesses on oath , shall give warrant under hand , and seal to the constables or church-wardens of the parish , to leavy the said penalty by distress and sale . and in default of distress , the offender to be set in the stocks three hours . none shall be impeached by this act , unless he be questioned within the moneth , to continue till the first session of the next parliament . tertio caroli capite to continued untill first session of the next parliament . anno iac. regis . an act to prevent and reform prophane swearing and cursing . none shall hereafter swear or curse , if any offend herein in the hearing of any justice of peace of the county , or of any major , justice of peace , bailiff , or head-officer of any city or town corporate , or shall be thereof convicted by the oathes of two witnesses , or confession of the party . they shall forfeit to the poor of the parish for every time they so offend . d. and the constable , church-warden , and overseers of the poor of that parish , by warrant from such justice or head-officer , shall leavy the same by distress and sale of the offenders goods , rendring the overplus . and in defect of distress , if he or she be above twelve years , shall by warrant from such justice of peace , or head-officer be set in the stocks three whole hours . and if the offendor be under years of age , and do not forthwith pay the forfeit , then he or she by warrant of such justice , or head-officer , shall be whipped by the constable , or by the parent , or master in his presence . this statute shall be read by the minister of every parish twice in the year , upon the sunday after evening prayer . the forfeiture for not repairing to the church weekly is d. . iacobi . who be adjudged rogues by the stat. of eliz. . all persons calling themselves scholars , going about begging , all sea-fa●ing-men pretending loss of their ships or goods on the sea , going about the country begging , all idle persons , fortune-tellers , all fencers , bear-wards , common players of enterludes , and minstrels wandring abroad . stealing . stealing . theft is the fraudulent taking away of another mans goods , with an intent to steal them against ( or without ) ▪ the will of him , whose goods they be . the civil laws do judg open theft to be satisfied by the recompence of four-fold , and privy theft , by the recompence double , but the laws of england suffer neither of those offences , to be more favourably punished , then with the offendors death , so that the value of the thing stollen be above d. he that stealeth the eggs of swans out of their nests , shall be imprisoned for a year and a day , and fined according to the kings pleasure , one moity to the king , and the other to the owner of the land where the eggs were so taken , and it was a custom in antient time , that he which stole a swanne in an open and common river lawfully marked , the same swanne ( if it may be ) or another swanne shall be hanged in a house by the beak , and he which stole him in recompence thereof compelled to give the owner as much corn as may cover all the swan , by putting and turning the corn upon the head of the swanne , untill the head of the swanne be covered with the corn. steward . steward . this word is derived of two old words , stede and ward , and it is as much to say , as a man appointed in my steed or place . and seneschallus in latin hath the signification : the under-sheriff subvicomes , in antient times was called seneschallus vicecomitis , because he exerciseth the place of the sheriff himself , and therefore a great officer of this realm is called the great steward , because the king appoints him in divers cases to exercise his place . by the law , without speciall words , a steward cannot make a deputy , because his office requires sciency , fidelity , and discretion . security of peace , securitas de pace . surety of the word securitas , because the party that was in fear , is thereby secure and quiet . lambert . it is an acknowledgment of a bond to the king , taken by a compent judge of record , for the keeping of the peace , securitas de bono gestu suo , surety of the good abearing , differs from surety of the peace in this , that whereas the peace is not broken without an affray , or battery , or such like ; this surety , de bono gestu , may be broken by the number of a mans company , or by his or their weapons , or harness . surrender , quia sursum redditio , and it is of two french words , suise & rendre , a yeelding up of an estate again to his lessee , or his assignee . svspence . suspence , cometh of suspendeo ; and in legall understanding is taken when a seignory , rent , profit , apprender , by reason of unity of possession of the seignory , rent , &c. and of the land out of which they issue , are not in esse , for a time , & tune dormiunt , but may be revived , or awaked . and they are said to be extinguished , when they are gone for ever . et tune moriuntur , and can never be revived , that is , when one man hath as high , and p●rdurable an estate as another . suit . suit. a wife is disabled to sue without her husband , as much as a monk is without his sovereign . but by the common law the wife of the king of england is an exempt person from the king , and is capable of lands or tenements of the gift of the king , as no other feme covert is , and may sue , and be sued without the king , as a feme sole by the common law , but where the husband is banished , the wife may sue , and be sued . t. taile . taile . an estate tail , it cometh of the french word tailler , to cut , lit. l. . at the common law , before the statute , de donis conditionalibus , the donor and donee had possibility , the donor of reverter , if the donee dyed without issue male , and the donee to have power to alien , if he had issue male ▪ potestatem alienandi post prolem suscitatam . then he had full and absolute fee-simple to three purposes : . to alien . . to forfeit by attainder of felony . . to charge with rent common , &c. a woman being tenant imspecial tail to her , and her first husband , after issue had by her first , she had full fee-simple to make the same land descend to any of her issues by any other husband . an annuity at this day is not within the statute de donis conditionalibus , because it is nec terre , nec tenement , nor exercisable within land tenement , nor concerning land , but onely a meer personall hereditament . to estate tail , it is requisite , that the heirs be limited to be procreate of some body in certain , either by express words , or by words equivalent ; for the precise words , d● corpore , are not alwaies necessary to the creation of an estate tail . if land be given by deed to i. s. et si contingat ipsum abire sine hae●ede de corpore suo , quod tune revertatur , to the donor and his heirs , and livery of seism is made according to the deed ; in this case the donee hath estate , notwithstanding it be not given to him , and his heirs . for the stature of westminster the second , c. . will quod voluntas donatoris secundum formam in charta doni sui manifestè expressam , de caetero observetur . if land be given to a man , and to his heirs males , and he hath issue male , he hath fee-simple , but when lands be given to a man , and to his heirs males of his body begotten , then he hath fee-tail . a devise made to one and his heirs males , makes an estate tail , it being supposed that the testator was inops conci●ii , in making his will , and therefore his intent shall be taken . the king conveyes land to a man and his heirs males , his estate is void because the king is deceived . if lands be given to a man , and to his heirs which he shall beget of his wife , or to a man , et haeredibus de carne sua , or to a man , et haeredibus de se , this is an estate tail . this word may in many cases be omitted , or expressed by the like , and yet the state in tail is good , as haeredibus de carne , haeredibus de se haeredibus quos sibi contigerit , &c. if the word be procreandis , or quos procreaverit , the estate in tail is good ; and as procreatis shall extend to the issue ; begotten before , so procreandis shall extend to the issues begotten afterwards . if lands be given to a man and a woman unmarried , and the heris of their two bodies , for the apparent possibility to marry , they have an estate tail in them presently . tail . tail after possibility . to hold in the tail after possibility of issue extinct , is where land is given to a man , and to his wife , and to the heirs of their two bodies engendred , and one of them overliveth the other without issue between them begotten , he shall hold the land for term of his own life , as tenant in tail after possibility of issue extinct . this tenant hath seven qualities and priviledges which tenant in tail himself hath , and which lessee for life hath not . as . he is not punishable for wast . . he shall not be compelled to attor● . . he shall not have aid of him in the reversion . . upon his alienation , no writ of entry in consimili casu lieth . . after his death , no writ of intrusion doth lie . . in a praecipe brought by him , he shall not name himself tenant for life . . in a praecipe brought against him , he shall not be named barely tenant for life . and yet he hath other qualities which are not agreeable to an estate in tail , but to a bare lessee for life . . if he make a feoffment in fee , this is a forfeiture of his estate . . if an estate in fee , or in fee tail , in reversion or remainder descend , or come to this tenant , his estate is drowned , and the fee , or fee-tail executed . . he in the reversion or remainder shall be received upon his default , as well as bare tenant for life . . an exchange between a bare tenant for life and him is good , for their estates in respect of the quantity are equall , so as the difference standeth in the quality and not in the quantity of the estate , and as the estate tail was originally carved out of a free-simple , so is the estate of his tenant out of an estate in speciall tail ; and he is called tenant in tail after possibility of issue extinct , because by no possibility he can have any issue inheritable to the same estate tail . but if a man giveth land to a man and his wife , and to the heirs of their two bodies , and they live till each of them be an hundred years old , and have no issue , yet do they continue tenants in tail , for the law seeth no impossibility of having children . tallage . tallage . tallagium , or talagium cometh of the french word tailer , to share or cut out a part , and metaphorically is taken when the king or any other hath a share or part of the value of a mans goods or chattels , or a share or part of the annual revenue of his lands , or puts any charge or burden upon another . it is a generall word , and doth include all subsidies , taxes , tenths , fifteens , impositions or other charge put or set upon any man. cook 's ad part of insti● . tenement . tenement , is the same with us that praedium ur●anum is with the civilians , it includeth not only all corporate inheritances , which are or may be holden , but also all inheritance issuing out of any of those inheritances , or concerning or annexed to , or exercisable within the same , though they lie not in tenure ▪ , therefore all these without question may be intailed , as rents , estoures , commons , or other profits whatsoever granted out of the land. tenure . tenure , there is a tenure in england , where the tenant maketh proffer of a present to the landlord , but delivereth it not , that the chief lord may say unto him , i thank you for nothing . testament . testament , the making of a testament hath three parts . . inception , which is the writing of the testament . . progression , which is the publication of it . . and consummation , which is the death of the party . testamentum est duplex . . in scriptis , written , which at the time of making , is put in writing . . nuncupativum , seu sine scriptis , when the testator doth by word only declare his will before witnesses . and in some cities , or boroughs , lands may pass , as chattels by will , nuncupative or paroll , without writing , but in law most commonly ultima voluntas in scriptis is used where lands or tenements are devised , and testamentum , where it concerneth cha●tels . testamentum is testatio mentis , and is favourably to be expounded , according to the meaning of the testator . the first grant and the last will is of greatest force . cook on littleton ibidem , sect . . a testament is defined voluntatis nostrae justa sententia de eo quod quis post mortem suam fieri velit , cum executoris institutione , a declaration of our mind concerning that which we would have done after our deaths , with the ordaining of an executor thereof . wests presidents . every testament is a last will , but every last will is not a testament , a testament is one kind of last will , wherein the executor is named , who is called haeres in the civil law. testaments ought to be proved before the ordinary , unless it be in special cases , where the lords have probate of the testaments of their tenants , before the stewards , or themselves in their temporall courts . a testament proved before the bishop himself of the same diocess where the party dies is good , if he have not goods and chat●els to the value of fourty shillings in any other diocess , for then it ought to be proved in the prerogative court , where one hath goods only in an inferiour diocess , but the metropolitane of the same province pretending that he had bona notabilia in divers diocesses , commits administration , this administration is not void , but voidable by sentence , because the metropolitane hath jurisdiction over all diocesses within his province , but if an ordinary of a diocess commit administration of goods , when the party hath bona notabilia in divers diocesses , such administration is meerly void , as well for the goods within his own diocess , as else-where , because that by no means he may have jurisdiction of the cause . what is meant by noble goods , divers authours have been of divers opinions . some have been of this opinion , that if the testato . ●ie possessed of goods or chat●els to the value of sorry shillings in two severall diocesses , then he ought to be deemed to have notable goods , others have been of this mind , that the testator is deemed to have notable goods , though at the time of his death he had but one penny in another diocess . others are of this judgment , that he is said to have notable goods , which hath goods to the value of ten pounds of currant money of england , dispersed in divers diocesses or jurisdictions , this opinion seemeth best to some . when the testator doth in the former part of his will devise his lands in such a place to one in fee , and after in the latter part of the same will to another person in fee , it seemeth by the laws of the realm , that the latter part doth overthrow the former . it is not sufficient by the law , that the testator be of memory , when he maketh his will , to answer to familiar and usefull questions , but he ought to have a disposing memory , so that he be able to make a disposition of his lands with understanding and reason , which memory the law calls a sound and per●ect memory . if the writer being skilfull in the law , do only take notes from the mouth o● the deceased , of his last will for the devi●e o● l●n●s , tenements and hereditaments , and after wards write the same , but before it be shewed to the t 〈…〉 , he depart this life , yet this is sufficient ●or a will in w●iting for the conveyance of land , tenements , and hereditaments , whereof such notes were taken . it is called nuncupative à nun●●●and● , id est ●rninando , because a man must name his executor , and declare his own mind before witnesses . it is of as great force and efficacy ( except for lands , tenements , and hereditaments ) as a written testament . this kind of testament is commonly made when the testator is now very sick , weak , and past all hope of recovery . these persons following cannot make a testament , or dispose of their goods and chattels . . such as want discretion , as children , mad fokls , and ideots . . such as lack freedom and full liberty , as bondslaves and villains , captives and women covert . . such as lack some of their principal senses , viz. such as be dumb , deaf , and blind . . such as have committed some hainous crimes , as traytors , felons , hereticks , apostates . wills or testaments made of any mannours , lands , or tenements , or other hereditaments , by any person within the age of twenty one years , are not good or effectual in law , for untill that time by the common laws of this realm they be accounted infants , howbeit a boy after the age of fourteen years , and a wench after the age of twelve may make a testament , and dispose of their goods and ●hattels . if mad persons make their testaments when they have clear or calm intermissions , it is good . see cooks rep. in pawlets case . by the opinion of divers justices of this realm , and doctors of the canon and civil law , the goods of this realm , that is , of the antient crown and jewels cannot be disposed by will. tillage . tillage . agriculture or tillage is of great account in law , as very profitable for the common-wealth , the common law giveth arable land the preheminence and precedency before meadows , pastures , woods , mines , and all other ground whatsoever . by laying of lands used in tillage to pasture , six main inconveniences do daily increase . . idleness , which is the ground and beginning of all mischief . . depopulation and decay of towns , for where in some towns two hundred persons were occupied and lived in their lawfull labours , by converting of tillage into pasture , onely two or three herdmen are maintained . . husbandry is decayed . . churches are destroyed , and the service of god neglected by diminution of church livings . . injury and wrong done to patrons and gods ministers . . the defence of the land against forreign enemies , enseebled and empaired , the bodies of husbandmen being more strong and able , and patient of cold , heat , and hunger , then of any other . title . title , properly ( as some say ) is when a man hath a lawfull cause of entry into lands whereof another is seized , for the which he can have no action , as title of condition , title of mortmain ▪ but legally this word ( title ) includeth a right also , and title is the more generall word , for every right is a title , but every title is not such a right for which an action lieth , and therefore titulus est justa causa possidendi , q●od nostrum est , and signifieth the means whereby a man cometh to land , as his title is by fine , or by scoffment , & dicitur titulus à tuendo , because by it he holdeth , and defendeth his land , and as by a release of a right a title is released , so by release of a title , a right is released also but title in a proper and strict significati●n , is taken for a right of entry , where a man can have no action , as to enter for condition broken , or alienation in mortmain . tolt . tolt , it is so called because it doth tollere ●●quelam from the court baron to the county court. town . town , if a town be decayed , so as no honses ●emain , yet it is a town in law. it cannot be a town in law , unless it hath , or in times past had ● church , and celebration of divine service , sa●raments and burials . it appeareth by littleton , that a town is a ●●nus , and a borough is the - species , for he saith , ●hat every borough is a town , but every town is ●ot a borough . there be in england and wales , ●ight thousand , eight hun●red and three towns , 〈…〉 thereabouts . trespass . trespass . the law adjudgeth every tres●ass to be done with force and arms , therefore ●e plaintiff , that saith the defendant took his ●orse with force and arms , ( though he came with●ut weapon ) saith truly that he took him with 〈…〉 rce , as the law meaneth force . dr. and stu●ent cap. . if vi & armis be not in the writ , it shall abate , 〈…〉 itz . nat . brev . the law accounteth all to be vis , which is contrary to ius . if i do but hawk or walk for my pastime or recreation over another mans ground , he may have his action of trespass against me , quare vi & armis , for though i meant no harm to him or his , yet i might not pass upon his grouad without licence . the form of a writ for living things , as horses , is coeperunt & abduxerunt , for a dead thing , coeperunt & asportaverunt . traverse . traverse , it took the name of the french d● traverse , which is no other then de traverse in latin signifying , on the other side , because as the indictment on the one side chargeth the party , so he on the other side cometh in to discharge himself . traversing of an endictment is to take issue upon the chief matter thereof , which is to make contradiction , or to deny the point of the indictmen● treason . treason , is derived from ( trahir ) which i● treacherously to betray , trahison , per contracti●nem ; treason , if a man be arraigned for high treason , and stands mute , or will not directly answe● to the crime , judgment shall be given upon him a● upon a traytor convict . fatetur facinus qui judicium fugit . if a servant hath an intent to kill his master and before execution of his intent depart out o● service , and being out of service , executeth his intent , and killeth him which was his master : th● is petty-treason , for the execution respects the original cause , which was malice conceived , wh●● he was servant . in treason concealment is as capitall as the practice . here are no accessaries , all are in a like predicament of offence and danger of law , in majori proditione omnes sunt principales . it is either high , or petty-treason : it is called high in respect of the king which is the highest person ; petty in regard of the inferiority of the persons against whom it is committed . voluntas non reputabitur pro facto nisi in causa proditio●is . to intend , or imagine the death of the king or queen , though it be not effected , yet if this be declared by an open act , or uttered by words , or letters , it is treason . a man that is a traytor convicted and attainted , hath his judgment to be drawn upon a hurdle from his prison to the place of execution , as being unworthy to tread any more upon mother earth , and that backward , with his head down-ward , for that he hath been retrograde to naturall courses ; after hanged up by the neck between heaven and earth , as deemed unworthy of both ; his privy parts are cut off , as being unprofitably begotten , and unfit to leave any generation after him ; his bowels and intrals burned , which inwardly had conceived and concealed such horrible treason ; then his head cut off , that imagined the mischief . petty treason is a killing of any to whom pri●ate obedience is due ; as for a servant to kill his master or mistriss , a wife her husband , a child her father or mother ; a clerk his ordinary , to whom he oweth canonicall obedi●nce . if a servant procure another to kill his master , and he kill him in his servants presence , this is pet●y treason in the servant , and murder in the ●ther ; but if it be in his absence , the servant is only accessary to the murder , because the principall is not a traytor , and the accessary shall not b● in worse condition then the principall . a maid conspired with a stranger to rob her mistress , and in the night time lethim in at the door , and led him to her mistress bed with a candle , and the stranger kill'd her , the servant saying , or doing nothing , but holding the candle , this was petty treason in her . treasure . treasure , the kings treasure is the sinews of war , and the honour and safety of the king in time of peace , firmamentum belli & ornamentum pacis . if any mine or metall be found in any ground , that alway pertaineth to the lord of the soil , except it be a mine of gold or silver , which shall be alway to the king , in whose ground soever they be found . our law saith , quod thesaurus competit domi●● regi , & non domino libertatis , si non sit per ver●● specialia , ut per praescriptionem . oars of gold and silver belong to the king by his prerogative , but not treasure found , for they are called thesauri in terra , and not de terra treasures hid in the earth ; as when any money gold , silver , plate , bullion is found in any place , and no man knoweth in whom the property is , the law bestoweth it upon the king , and it becometh re fiscalis , parcell of the treasure royall . triall . triall . if the triall be of an alien born ( for selon● or murder committed by him ) the jury shall b● de medi●tate linguae , that is , half of one natio , an● half of strangers , except it be in the case of a scot , whose jury shall be altogether english , be cause both he speaks our language , and is reputed a subject . in ianuary . h. . henry howard , earl of surrey , son and heir apparent to thomas , duke of norfolk , was attainted of high treason , for joyning the armes of england to his own , and he was tryed by knights and gentlemen , and not per dominos ●ec per pares regni , because he was not earl by creation , but by nativity , as heir apparent to the duke , which is not a dignity in the law ; for if he had had the dignity by creation , and had been lord of parliament , he should have been tryed by his peers . in such a triall per pares , the lords shall not be sworn , and every one shall give his verdict by himself , and if the greater number agree , it is sufficient . a lord which is a peer of the realm shall not be tryed per pares suos , in an appeal , but in an indictment at the suit of the king. it is a maxim in the law , quod ibi semper fieri debet triatio , ubi juratores meliorem possunt habere notitiam . tallagium . tallagium , or tailagium , cometh of the french word ( tayler ) to share or cut in pieces , and per metaphoram is taken , when the king , or any other hath a share or part of the value of a mans goods or chattells ; or a share or part of the annuall revenue of his land , or puts any charge or burthen upon another ; so as tallagium is de genere inclusive , of subsidies , taxes , tenths , fifteenths , impositions , and other burthens put , or set upon any man ; and so it is expounded in our year-books , what shall be said to be tallag ▪ put upon the subject by the king unjustly . vide part of cook 's instit. . v. vagabond . vagabond , is one that wandereth about , rogue and vagabond are all one , whosoever wandreth about idly and loyteringly is a rogue or vagabond , although he beggeth not . verdict . verdict , quasi verè dictum , as the saying of truth . villenage . villenage . a villain signifieth as much as servus among the civilians . a man of servile or base degree , villain from the french villein , à villa , from a countrey farm , whereunto they were deputed to do service , as our villains regardant to mannors , were glebae ascriptitii , tied to the turf , or rather of the word vilis , of his vile and base condition . villenage is then the service of a bondman , and yet a freeman may do the service of him that is bound , therefore tenure in villenage is twofold . one where the person of the tenant is bound , and the tenure servile , and the other where the person is free , and the tenure servile . it is agreed by all men , that there were never any bondmen or villains , as the law calleth them in kent . villenage is where a man holdeth of his lord , either by doing unto him some particular base service , and such an one is called a tenant by villenage , or by doing generally whatsoever base service his lord will command , and impose upon him , and such a tenant is termed in our law a villain . void . void , a church representative may become void five manner of waies . . by death . . by creation . . by resignation . . by deprivation . . by cession , as by taking a benefice incompatible voucher . voucher , in latin vocatio , or ad vocatio , is a word of art made of the verb voco , and is in the understanding of the common law. when the common tenant calleth another into the court that is bound to him to warranty , that is either to defend the right against the demandant , or to yeeld him other land. usury . usury , usura dicitur ab usu & aere , quasi usu aera , id est , usus aeris , & usura est commodum certum , quod propter usum rei mutuatae accipitur . the statute now in force enacted , eliz. . c. . . it alloweth not usury but punisheth the excess . the title of the act is an act against usury , how then is it for it ? . it calleth usury a detestable fin , how then can it secure the conscience of any ? the statute of ii. the . punished all usury above ten in the hundred , with the forfeiture of treble value . see that of ed. th . utlary . utlary , the bishops of durham have had their royalties and princely rights , so that the goods of outlawed and attainted persons out of the kings protection , fall into their hands , and not into the kings . utlagatus , est quasi extra legem positus , and bracton saith , that caput gerit lupinum , because he might be pu● to death by any man , as a wol● that harefull beast might be . but in the beginning of the reign of king edward the third , it was resolved by the judges , for the avoiding of inhumanity , and of effusion of christian blood , that it should not be lawfull for any man , but the sheriff only ( having a lawfull warrant therefore ) to put to death any man outlawed though it were for felony , and if he did , he should undergo such punishments , and pains of death , as if he had killed any other man , and so from thenceforth the law continued untill this day . vv. vvage . wage , is the giving security for the performing of any thing , as to wage law , and to wage deliverance . contra instrumentum , sive specialitatem ( ut nostri loquuntur ) legis vadiatio locum non habet . dyer fol. . waif . waif , the civilians call it derelictum , this belonged in times past to the finder , by the law of nature , and now to the prince by the law of nations , or to the lord of the fee which hath his liberty granted him by the king , if the owner shall challenge it within a year and a day , it shall be restored him . a thing pro derelicto habita , waived and forsaken , is nullius in bonis , as when a man for fear of a tempest casteth his things into the sea , or some danger being emminent , leaveth them upon the land , or else of his own free-will , leaveth that which is his own sine spe reh . thendi . i● a thing be fallen out of a chariot or wagon , it may be said to be lost or waived . felony is not committed in the taking of treasury ●ound wreck of the sea , waif and stray , and such like , unless they have been before seised and the reason is , quia dominus rerum non apparet , ideo cujus sunt incertum est , and therefore punishment in such cases , is by ●●ne , and not by the taking away of life and member . waif , is properly when a thief being pursued and having stolen goods about him , doth leave or forsake them , that he may fly away . waive . waive , is a woman that is outlawed , and she is called waive , as left out or forsaken of the law , and not an outlaw , as a man is , for women are not sworn in leets to the king as men are , which be of the age of twelve years or more . wapentake . wapentake . when any on a certain day and place took upon him the government of the hundred , the free suiters met him with launces , and he descending from his horse , all rose up to him , and he holding his launce upright , all the rest , in sign of obedience , with their launces touched his launce or weapon ; for the saxon word ● apen is weapon , and tact , tactus , touching , whence wapentake or touching a weapon . cook 's d part of instit. c. . it came of the danes , or saxons , for that so many towns came by their order then to one place , where was taken a muster of their armour and weapons , in which place from them that could not find sufficient pledges for their good abearing , their weapons were taken away . weapon , or wapon in old english do signifie all arms offensive , as sword , dagger , spear , launce , bill , bows , arrows . the northern english beyond trent , called a hundred so . wardship . wardship , the finall cause why it was ordained was this , ut qui per aetatem scipsos defendere nequeant , ab aliis defendatur . of guardianships there be two kinds in respect of the manner of their constitution , viz. . by the common law. . by statute . at the common law there are four manner of guardians . . guardian in chivaliy . . guardian in soccage . . guardian by nature . . guardian pur cause de nurture . for guardianship by the statute , . and phil. and mar. all which severall sorts of guardianships the law hath defended by divers statutes providing for the guardians respective remedies , in case their rights are violated , vid. hub. rep. dr. husseys case , west . . c. . explained for that purpose in a writ of ravishment . ed. fitzh . guard . . & fitzh . n. b. . & . & register . & . h. . . warranty . warranty , is a covenant whereby the bargainer is bound to warrant the thing sold to the bargainee , and is either , . reall , or . personall . . real , when it is annexed to lands or tenements granted for life , &c. and it is either , . in deed , as by the word warrantizo expressly . . or in law as by the word dedi or some other amplification . . or personall which either respects the . property , of the thing sold or . the quality of it . reall warranty in respect of the estate is either . lineall . . collaterall , or . commencing by deseisen . warren . warren , the king grants a warren to me in mine own lands for pheasants and partridges onely , so by this grant no man may there chase them without my licence , and so of hares , but not of conies , for their property is to destroy the fruits of the earth , and to eat corn , crompton iurisd . fol. . by the grant of it , or a forest or park , not only the priviledge , but the land it self passeth , for they are compound . waste . waste . brook holds that the executors shall have glass , for the house ( saith he ) is perfect without it . yet it was adjudged in the common pleas , that a waste may be committed in glass , annexed to the windows , for it is parcell of the house , and shall descend as parcell of the inheritance to the heir , and executors shall not have it , and although that the lessee himself at his own costs put the glass in the windows , yet this being own parcell of the house , he cannot take away this or waste it , but shall be punished in waste . glass annexed to the windows by nails , or after other manner by the lessor or lessee , cannot be removed by the lessee , for without glass it is no perfect house , and by a lease or grant of a house this shall pass as parcell of it , and the heir shall have i● , and not the executors , and peradventure a great part of the costs of a house consists of glass , and if they be open in a tempest and rain , waste of the timber of the house will follow . also it was resolved , that if wainscot be annexed to a house by the lessor or lessee , it is part of the house , and there is no difference in the law whether it be fastned with great or little nailes , or by screws or irons put through posts or walls . but if it be any of these waies , or any other fixed to the posts or walls of the house , the lessee cannot remove this , but he is punishable in an action of waste ; for this is part of the house , and by lease , or grant of the house shall pass as parcell . by an action of waste at our law , the plaintiff , if it be ●ound for him , shall recover treble dammages . for permissive waste no action lies against tenant at will , but for voluntary waste a generall action of trespass lies . there are two kinds of waste , viz. voluntary , or actual and permissive , waste may be done in houses , by pulling or prostrating them down , or by suffering the same to be uncovered , whereby the spa●rs or ra●ters , or other timber of the house are rotten . but if the house be uncovered , when the tenant cometh in , it is no waste in the tenant to suffer the same to fall down . but though the house be ruinous at the tenants coming in ; yet i● he pull it down , it is waste , unless he re-edifie it again . though there be no timber growing upon the ground , yet the tenant at his perill must keep the houses from wasting . if the tenant do , or suffer waste to be done in houses , yet if he repair them before any action brought , there lyeth no action of waste against him ; but he cannot plead quòd non fecit vastum , but the speciall matter . a wall uncovered when the tenant cometh in , is no waste , if it be suffered to decay . if the tenant cut down , or destroy any fruit tree , growing in the garden or orchard , it is no waste . if the tenant build a new house it is waste , and if he suffer it to be wasted , it is a new waste . waste properly is in houses , gardens , in timber trees , viz. oak , ash , and elme ; either by cutting of them down , or topping of them , or doing any act whereby the timber may decay . if a house be ruinons at the time of the lease made , if the lessee suffer the house to fall down , he is not punishable , for he is not bound by law to repair a house in that case : and if he cut down timber upon the ground so letten , and repair it , he may well justifie it ; and the reason is , because the law doth favour the supportation and maintenance of houses of habitation for mankind . wife . wife . after marriage , all the will of the wife , in judgment of the law is subject to the will of the husband ; and it is commonly said , a seme covert hath no will. if she have any tenure at all , she holds in capite , and she hath no title but by her husband , the maxim of the lawyers is ●●●r fulget radiis marit● , the wife shines with her husbands beams . where baron and feme commit selony , the feme can neither be principall , nor accessary , because the law intends her to have no will , in regard of her subjection and obedience she owes to her husband . our law saith , that every gift , grant , or disposition of goods , lands , or other thing whatsoever , made by a woman covert , and all , and every obligation and seoffment made by her , and recovery suffered , if they be done without her husbands consent , are void . yea , if she do wrong to another , she hath not any thing to make satisfaction during coverture , either her husband must do it , or by imprisonment of her person must it be done . and though she have inheritance of her own , yet can she not grant any annuity of it during her coverture without her husband ; if any deed be made to that purpose without his consent , or in her name alone , it is void in law. yea , if there be debate between the husband and his wife , whereby certain lands of the husbands be assigned to the wife with his consent , if out of such lands she grant an annuity to a stranger , the grant is void . and if he covenant to give her yearly such and such apparell , she cannot dispose it as she list without his consent , but only me and wear it her self . neither can she lease her own land for years , for life ; if the do , it is void , and the lessee entring by so●ce thereof , is a dissesor to the husband and trespassor . if she sell any thing , the sale is void , except she be a merchant , where by the custom she is inabled to merchandize . finally , she cannot make executors without the consent of her husband , nor a devise or will ▪ cook rep. ognels case if she make a will , and thereby devise her own inheritance ; and her husband die , and she after die without any new publication of it , it is of no force , but it was void at first . suppose a woman at the time of her marriage have a lease for years , or the wardship of the body and lands of an infant , or have it by gift or purchase , after marriage she cannot give it away whatsoever the extremity be , but her husband may at any time during coverture dispose of it , and such his disposition shall cut off the wives interest . by the common law marriage is a gift of all the goods and chattels personall of the wife to her husband ; so that no kind of property in the same remaineth in her . and all personall goods and chattels during marriage given to the wife , are presently ipso facto transferred ( as to the property of them ) to the husband . by our law her necessary apparell is not hers in property . while she remaineth a wife , she is ( to use the law phrase ) under covert baron : she can neither let , set , al●en , give , nor otherwise of right make any thing away . withernam . withernam comes from two old and out-worn saxon words , wither al terum & nam pignus quasi altera pignoris oblatio : some derive it of the german wider , i. e. rursus again , and nam that is , captio , a taking , vetitum nanium , in latin , a forbidden taking , though it be a taking again , but because the first taking in distress was unlawfull , and so in law forbidden . wreck . wreck , the civilians call it naufragium , nothing shall be wreccum maris but such goods only which are cast , or lest upon the land by the sea , for wreccum maris significat illa bona quae naufragio ad terram appellantur . it is an estray upon the sea coming to land ; as an estray of beasts is upon the land coming within any priviledg'd place . the king , by the old custom of the realm , as lord of the narrow sea , is bound to scour the sea of pyrats . and because that cannot be done without great charges , it is not unreasonable if he have such goods as be wrecked upon the sea toward the charge . writ . writ , a writ is a formall letter , or epistle of the king of the liberties , &c. in a parchment sealed with a seal , directed to some judge , officer , minister , or other subject , at their suit , or the suit or plaint of a subject , commanding or authorising some thing contained in the same letter to be done for the cause briefly ( and therefore called un brief ) in that letter expressed , which is to be discussed in some court according to law. writs are of three sorts , . originall , which are most commonly of course , and therefore are of a set form . . judiciall , which are for the execution of the judgment . . magisteriall , which vary in form according to the matter emergent . wrong . wrong , or injury is in french aptly called tort , because injury and wrong is wrested or crooked , being contrary to that which is right and straight . injury is derived of in and ius , because it is contrary to right . queen elizabeths continuall charge to her justices agreeable with her antient laws was , that for no commandement under the great , or privy seal , writs , or letters , common right might be disturbed or delayed , according to the antient law declared by the great charter , nulli v●ndemus aut negabimus aut differemus justitiam vel rectum . y. yard-land . yard-land , or virgata terrae , the saxons called it girdland , is a proportion of land , in some countries it is ten acres , in some twenty , some twenty sour , and some thirty acres of land. a table . a abate what it signifies , page whence abatamentum ib. abbot , whence it comes , and what it signifies p. abciance , whence derived , and what it signifies p. , accessary , before and after the fact , who p. . . cases about accessaries ib. acquittance , what it is , how it differs from some words in the civil law p. . acquiter , whence derived , and what it signifies ibid. acre , what it is , and whence it comes p. action , what it is , and whence derived , p. . severall sorts of actions , ibid. how an action of the case will lie p. , , . adjournment , what p. admission , what ib. administrator , who p. ib. advowson , what , and whence so called p. affeerors , what , and whence p. ib. how affeerment , and amerciament differ ibid. affray , what , and whence p. . how it differs from assault ib. age , the law takes notice of divers ages p. agreement , whence p. ib. cases about it alien , whence derived , and what it signifies p. ib. almes , accounted in law divine service , p. . cases about it ib. amerciament , why called misericordia , p. ib. how it differs from a fine ib. ancestor , whence , and how in the law distinguished from predecessour p. an , jour , a convenient time for many purposes ib. an , jour , and waste , what ib. annates what annuity what ib. cases about it ib. appeal , whence it comes , the severall sorts of appeals , and cases about it p. , appendant , what apprentices , unde , and what ib. apportion , unde appurtenant , what , and how distinguished from appendant ib. arbitrement , what , and how it differs from concord arraign , what ib. arrest , what and whence , p. . who may not be arrested , ib. it is lawfull in the right ib. assault , whence p. assembly , when unlawfull ib. assise , what ib. assumpsit , what , . when good in the law ib. attachment , what and whence , ib. how it differs from an arrest ib. attainder , what and whence ib. attaint , what and whence punishments follow it ib. attorney , what p. attornment , what and whence p. award , whence , the severall kinds of it avowry , what ib. aide , what ib. b bail , what p ● bailment , what ib. bailiff , whence p. bank , what p. , bargain , and sale , what p bar , what p. ib. barretor , what , and whence , ● bastard , what , and whence , p. ib. cases about it , and ib. a good statute against bastards ib. battery , what p. buggery , what it is p burgage , what it is ib. burglary , what it is , and whence ibid. cases about it p. burgh english , what p. ib. cases about it ib. c capite , what tenure it is , and why so called p. castle p. challenge , what it signifies , and who may challenge , and be challenged ib. champerty champerters , who , and whence ib. chance-medly , what and whence ib. change , what p. change , what ib. charter , whence , and what p. . why it is called magna charta ibid. chattels , what , and whence severall sorts p. chevage , what p. clergy , when a man shall have his clergy p. collegium , what p. colour of office , alwaies taken in the worst part ibid. condition , what , cases about it p confirmation , what it is , the severall kinds of it p. confiscate , whence conspi●acy , what p. ib. constable , whence , and what required in him p ib. contract , why so called , cases about it p. copy-hold , what , cases about it p , coroner , what , and whence p. corporation , what p. covenant , what , ibid. who may covenant ib. covine , whence and what count , whence and what ib. county , what ibid. court , what it is , the severall courts p. cu●s●er , whence p. courtesie of england , what ib. curtilagium , what p consuetudo custom , what , the properties of it , and severall kinds of it p. , , , d dammage , what p. dammage ●easant ib. dean ib. debt , what decies tantum , what ibid. deceit deed , what , the things necessary to it ib. the kinds of deeds defeisance , what p. default , what ibid. se defendendo ib deforce , what ib. demandant ● de●ains ib. de●urrer ib. deni●en ib. de●i●●●ion ● de●dand ib. deraign p. de●i●●e ib. devise , cases about it ib. ●● , devit , what it is , it is sound in the law si● waies ib. discretion , what discontinuance , whence derived ibid. disparagement , what ibid. severall kinds of disparagement p. diss●ism , what it is ibid. distres● , whence , and of what things it must be ib. ● , divorce , whence , the severall causes of it , p. . it is twofold ibid. domin cum , what , its severall acceptions . p. doomes-day book , why so called ib. dower , what , the severall kinds of it , and cases about it ib. , , drunkenness , the sorfe●ture for it duresse , what , and whence ibid. e ecclesia , what it signifies in the 〈◊〉 law , what eccelesiasticall persons are p. election , what , in the law , it is of severall things , and cases about it p. , elegit , what ib. emparlance , what ibid. endictment , what , and whence p. , , ensranchisement ib. entruder equity ib. escape escheat escheator estate ib. estoin ib. estople estouers estray ib. estreats exchange ib. execution executor ib. exigent extortion ib. evidence f farme fealty ib. fee-simple ib. feudum fee fees ib. feossment ib. felony , the punishment of a felo is grievous p. , , felo de se , who , and how punished ibid. fine , its severall significations flight , what , p. floatsom , what ib. force , what ib. forging . formedon , why so called , and its severall kinds ib. foundation , what , and whence ib. franchise , what ibid. frankalmoigne , what ibid. franktenement , what . p. free-man , who , and how many waies . ib. fresh-suit , what . g gavelkind , what , and whence p. ● generall p. ● grand-serjeanty , what p. ib. grange ● grant , what cases about it p. , , h harriot , what , and how many kinds there be of them , p. heir , what p. . the severall kinds of heirs p. hereditament haeres ib. hotchpot , what p. homage , whence it is , the most honourable and humble service ib. homicide , what , and what is required to it p. , ho●se , severall cases about it , , hue and cry , what ib. hundred p. i ideot , who , cases about it p. jersam , what p. ignoran●e ibid. imprisonment ibid. incident incumbent ibid. induction ibid. indented , when a deed is indented , and how called p. infant ibid. inheritance p. inne ib. institution p. intrusion ibid. joyntenants ib. joynture p. judges ib. , judgment p. jurata , what , and whence the severall kin●s p. , , , ● justices , whence p. k king p ▪ knight , whence ibid. knights-fee , what knights service , what ib. l land p ▪ larceny , whence , and what p ▪ latine p. law , what , the law of nature and of england p. , legacy , what p ▪ leases , whence , what persons may make them , and divers cases , ib. , libell , what , its severall kinds , cases about it p. , liberty p. ligeance , what , cases about it ib limitation livery , what p. , m magistrate p. mai● , what ib. main-p●i●● p. mannour ib. maintenance manumission ibid. marriage , cases about it p. maxim , what , severall maxims of the law p. misprision , what p. money , whence , cases about it ib. monopoly monster p. ib. mortgage , whence ibid. mortmain , whence p. mulier , what ib. murder , what , the severall kinds of it p. , , , mute , what ib. n name p. nief ib. nisi prius non compos mentis ib. nobility , nusance , what p. o oath obligation p. , occupation p. office ib. oxguage ordinary ib. order outlawry ib. p pain-fort , & dure p. pannell , what ib. paravail p. parceners ib. patron p. parson parliament p. , parque peace ibid. perjury pillory ib. pipowders ibid. pleas possession ib. pound praemuniry ib. prerogative , prescription presentment presumption ib. prison ib. privity priviledge ib. process ib. proof property ib. , , protection proviso ib. publick ib. purchase , q quarrels r ransome rape rebouter ib. record register p. relation ib. release p. relief , whence , and what ibid. remainder , what p. remitter p. rents ibid. replevin , whence resceit ib. rescous reservation ib. retraxit ib. reversion p. right , severall sorts of right ib. riot , whence p. robbery , whence , cases about it ib , rogue ibid. ro●e , whence ibid. s seisin , what p. seisina ibid. serjeants , whence ibid. sheri●f , whence his power ibid. soccage p. ser●eanty surety ibid. statute , whence p ▪ statutes ibid. stealing p. . stare suspense suit ibid. t taile , tail tallage tenement ib. tenure testament , , tillage title ib. tolt town ib ▪ trespass ib. travers● treason ib. , treasure triall ib. tallagium . v vagabond p. verdict ibid. villenage ibid. void voucher ibid. usury ib. utlary . ▪ w wage p. waif ib. waive wapentake ibid. wardship warranty ib. warren waste ib. wise , withernam p. wreck ib. writ ibid. wrong p. y yard-land finis . reader , these books following , are printed for charles adams , and are to be sold at his shop at the talbot in fleet-strest . a treatise of religion and learning ▪ and of religious and learned men ; in alphabetical order , a 〈…〉 k seasonable for these ●●mes wherein religion and learning have so many enemies : by edward , leigh esq master of arts of magdalen ●● all in oxford . in so to . reports of that learned and judicious clerk , iohn g 〈…〉 ●rough esq sometime one of the protono●a●●●● of the court of th● common pleas , being his collection of c●●ice cases , taken in the latter years of queen elizabeth ▪ with the iudges resolutions hereupon : pubshed by william style of the inner temple esq in . the french cook , prescribing the way of making ready all sorts of meats , fish , and flesh ; wih their pr●●●● s●●ces ; together with a treatise of conserves , and the whole s●ill of past●y-work : englished by i. d. gent. in ●● . the innocent lord , or the divine ▪ providence , being the incomparable history of ioseph ; englished by sir wi●●●n lower in . grati falicii cyneg●ti●on , or a po●●● of hunting , by grat●us , the falisci●n , englished and ●llustrated by christ●●●● wase gen in ●● . moral discourses and essays upon several se●ect subjects , by thomas culpeper esq ● a learned discourse of ceremonies , by the righ● reverend ●ather in god , lanc●lo● andre●● , late bishop of winchester . in ● . an answer to two loue is ▪ the one of a papist , the other of a presbyterian , by tho. swadli●g , dr. in divinity . in ● . new errors made palpable by an old ligh● , or a cheap and easie way to cure the dissenti●ns of the times , by anthoni● norwood esq in . a short and plain catechism , instructing a learner of christian religion , what he i● to believe and what to practice . the practical re●ister , being rules , order● , and observations , concerning the general practice of the law ▪ but more especially the way of practice in the court of the upper-bench , by william s●yle of the inner temple esq in large . two sermons : the first , the l●adstone of mans love : the second , the regene●●te mans bliss , by edward larkin minister of the gospel at lime ▪ field in su●●ie . in . a philologicall commentary , or an illustration of the most obvious and usefull words in the law , by edward leigh esq the second edition corrected and inlarged . notes, typically marginal, from the original text notes for div a -e . . q. . act. . cooks preface to the rep. and on lit. aqu●nas loco prius ●itato act. . notes for div a -e qui sibimet discipulus est , stultum habet pro magistro . * cooks preface to the report , and tookers case rep. littleton is the true & surest register of the fundaments and principles of our law. ployd . comment . wimbesh against talbois . notes for div a -e cook on lit. l. . c. . sect . . cowels interp . in abeiance i. e. in expectation , of the french word bayer to expect , cook on lit. in potentia as the l●gi●ians t●rm ●t , in expectation or consideration of law in nubibus , in the cl●uds . c●●k on ●i● . l. ▪ c. . sect . ● . plo. c●m ▪ sanders case . c●ok ● . r●p . cases of appeals and indict sie●s . b. cook on lat. l. . c. . sect . ● ▪ in alta proditione nullus p●test esse accessorius , sed principalis solummodo . fulb. praeparat . . c. p. . termes of law. cook on lit. lib. . sect . . cook. instit . . acra ●lim incerta nune ve●ò certa per statut. . ed. . actio est jus prosequendi in judicio , quod alicui debetur . ratione objecti circa quod ver . satur . . ass. pl. . 〈…〉 . ex . . c●● . . fol. 〈…〉 fulb. para● ▪ second pa● ▪ second dial . & alii . fulb. par●●● ▪ second part second ●●al . cook . rep. cook . rep. actions upon slander . . rep. sep. cot● case . brooks abri . fol. . brook ubi supra . fitz. herbert . in natura brev. hath the same , and gives this ●eason , because it is the duty of every arti●icer to do his art duly ●●● truly as he ●●ght . cook ● . rep. actions 〈…〉 slander . h●b rep. ●●l . . cook ubi supra . cook . rep. actiones de scandalis . friz . herb. nat. brev . action upon the case . cook fol. . calyes case . id. ib. t●e master hath n● da●●g● by p●●s●nall battery of his servant . cook . fol. ● . piggots case . cook . rep princes case . cook on lit. l. . sect . ● . cook on littelton l. . c. . sect . . * it comes of an old french word esscu●er . i. e. to tax or sine minsh . ii. . . . ed. . . cook on lit. l. . c. . ●●ct . ● . lit. ten. tit . d●●●er & l. . c. . p. . cook on lit. ubi supra . fitz. herb. nat. brev. in brevi de rationabili auxilio . lit. ten. cook on lit. l. . c. . sect . . ●●t . ten. l. . c. . p. & l. . c. . p. ● , . plowden term. pa●● . a●●o . e. . reniger against 〈◊〉 . plowden ib. alienae gentis or alienae ligeantiae . cook on lit. cook ● . ● . rep. 〈…〉 v. c●●● . cook on lit. iura naturalia ●ur● 〈…〉 vili di●imi non possunt . 〈…〉 nd student . cook on lit ▪ lib. . c. . p. . term. of law. cook ▪ ●● ▪ rep. cook on lit. ● . . c. . sect . ● . cook on lit l. . c. ● . sect . . cook ▪ institut . . i●●● ▪ cook on lit. . f●●● . herb. na● . brev . p. . ployd . an . . ●resp . by browning against best●r . plowd . comment . p. . . h. . dy. bacons collection . cook on lit. l. . c. . sect . . cook on lit. l. . c. . sect . . cook ubi supra . an appeal is called but a suit of revenge , ergo not much sav ured . h. . ● . dr. and student . c. . womans lawyer . h. . . ter●tes of law. t. of law. t. of law. cook on lit. l. . c. . s. . cook rep. tyrring . case . id ib. mr ▪ seldens notes on fortescue . pag. . cook on lit ▪ l. . c. . sect . ● ● . cook on lit. l. . c. . l. dyer , term . mich . anno sexto ed. . . dyer ● pl. ●● . y. of law. dr. and student . ●●● . ● . doderidge . brook. abri . fol. . b. cook . rep countess of ratlands case . cook rep earl of salops case . cook rep. mackallies case . ass. pl. . t. of law. term. of law. terms of law. minish . cook on lit. l. . c. . sect . . cook on lit. l. . c. . sect . . . s● odious is perjury in the eye of the common law. cows institut . minsh . cook on lit. l. . c. ● . l. . sect . . perk. . . of the french tourner to turn : therefore they say to turn tenant minsh . cook on lit. l. . c. . sect . . regist. orig fol. . glanvil . l. . cap. . west . . . ed. . . ed. . . . h. . cook on lit. l. . c. . sect . . what kinds of offenders may be bailed , see cook part of instit. c. . termes of law. dalton . cook on lit. l. . c. . sect . . id. l. . c. . sect . . ●ook on lit. l. . c. . sect . . termes of law. fitz. nat. brev . . k. h. . . e. . . dy. h. . . h. . br. reservant . . cook on lit. l. . c. . sect . . the word is derived of barret which signifieth a quarrell , a barretroubler , or barre-ste●der . cook on lit. l. . c. ▪ sect . . cook . rep. barrets case . p. . he causeth men to be troubled at the barre , minsh . vitilitigator quasi vitiose litigator . either from the french bastard , as cowelin instit . or from 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 meretrix quia procreatur ex mretrice . cook on lit. cook rep. letchfords case . stat. . h. . . cook preface to his rep. smiths common-wealth of england . terms of law. to the end of the first session of next parliament . dalton . cook on lit. l. . c. . sect . . id. ib. septimo jacobi c. . and for the second offence to be committed to the house of correction , till , &c. daltons iust. of p. there are two statutes for it , h. . revived , eliz. . fitz. nat. brev . . ● . dalton . cook on l●● . l. . c. . sect . . it is derived of burgh a house , and ●aron a thief . cook rep. as if one break down a window to book out any thing . cooks case of appeal and indictments . th rep. id. ubi supra . stamford . dalton . eli. c. . lit. te● . l. . c. ● . so called , beecause this custom was first ( as some hold ) in england . cook on lit. p. ● . b. cook on lit. l. . c. , sect . . l. dy. term . pasch. in . reg. eliz. cook rep. gorges case cook on l●● . l. . c. . sect . . l. dyer ● , . a. l. dyer p. . b. cook on lit. p. . cook on lit. l. . c. . sect . . in savorem vitae . magna charta saith per judicium parium suorum . cook ub● supra ▪ cook part of instit. c. . cook on lit. lib. . c. . sect . . lamberts iust. of p. it cometh of two french words , that is , ●apsus & mes●er , id est , miscere . cowells interpr . stamford pr●erog . c. but so shall n●t h 〈…〉 that killeth one that would r●b him in his house , or the officer which killed one that will not be arrested . perkins tit . eschanges . p. . terms of law. ●ook on lit. ● . . c. . sect . . and epist. rep. and proeme to his part of instit. iudge doderidge . cook on lit. ubi supra . termes of law. cook on rep. anna bedingfields case . cook on lit. l. . c. . s. . lord buckhursts case . rep. . cowells interp . verb. cattalls . kitchin fo . . verb. catalla . cook on lit. lib. . c. . sect . . bona includes all chattels , as well real , as personal . id ib. cook on lit. ubi supra . dr. cowels interp . kitchin. cook on lit. l. . c. . sect . . t. of law. bacons use of the law. p. . * horse or mare-stea●ers shall not have their clergy , because horses are for publick service and commerce . . the thief by them is armed to do mischief . stamford pl. of cr. l. . c. . id. c. ● . stamford ib. c. . dyer term . pasch. ann . mariae p. l. dyer term . michael . annis . & reg. eliz. frust● a legi ▪ au●ilium implo●at , qui commi●tit in legem . ployd . com. dive against manyngh . f . a . a. termes of law. cook ●n lat . l. . c. . sect . . cook on littlet●n l. . c. . sect . . lit. l. . c. . cook on lit. l. . c. . sect . . fit. n. bre . s. . cook l. . of rep. beaumonts case . . confiscare i. e. conferre in fiscum . fiscus propriè principis est , aera●ium rei publicae . t●it●s ille pli●ii l●●us ad ●●●●anum & fortasse eadem severitate ●●●●um qua aerarium ●●●i●es . cook . rep. foxleys case . s●am . pl. ●●●r . l. . c. ● . i. doderig . cook rep. grieslies . case . dalt . iust. of p. contractus est quasi actus contra actum . cook. d. and student ▪ cap. . l. dyer termin . michael anno e. . p. the tenants thereof do hold per copiam rotulorum domini . cook on lit. p. . it is an estate of inheritance , secundum quid . cook rep. copy-hold case . cook rep. combes case . eliz. c. . his name is derived à corona , because he is an officer of the crown , and hath ●●nusance of some pleas , which are called placita coronae . cooks part of instit. c. . see more there . he is s● called , because he deals principally with pleas of the crown , o● matters concerning the crown . cooks part of instit. c. . t. of law. smiths common-wealth of england ▪ c. daltons iust. of p. t. of law. fulb. law of nature . . c. daltons iust. of p. cook on lit. l. . c. . sect . . plowd . fol. . b. cook on lit. l. . c. . sect . . cook on li● ▪ l. . c. . sect . . ● cometh of he latin uria which ●so is etched from cura ( as valla writeth ) whereby it is notified that heed and care ought to be taken in the deciding of controversies . wherein are holden all common pleas between subject and subject of all matters of common law so called , for that it serveth for the exact and precise administration of the common law , smiths common-wealth of england . smiths common-wealth of england , camera stellata , or of the latin word stellio , a starry beast , whence c●senage is called by the civilians crim●n stellionatus , because that sinne is punished in this court , lamb. iur. of cour. cook rep. godferys case . iudge doderidge . it is called courtesie of england , because it is not used in any other realm , some say he shall not be tenant by the courtesie , unless the child which he hath by his wife be heard cry , for by the cry it is proved that the child was born alive , lit. nam dicunt e vel a quotquot nascuntur ab eva. cook ib. & pains case . perkins fol. . b. & . a. cooks part of the institutes c. . cook on lit. lib. . ● . . sect . . sir iohn davis his reports . cook ubi supra . the commencement of a custom must be upon a reasonable ground and cause . consuetudo contra rationem introducta po●ius usurpatio quam consue●udo appellari ●●●er . sir john davis rep. case ●f ●anistry . davis ubi supra . see him . malus usus abolendus est . davis ib. consuetudo is nothing else but communis assuetudo . the particular and approved custom of every nation is the most usual binding and assured law. cook pref . to rep. dr. and student . c. . cook rep. case of swans . cook rep. case of the city of london . consuetudo loci est observanda . camb. brit. in glocestershire . cambden in suffolk . d. & student c. termes of law. suidas . d. and student . cook on lit cook rep. pin●hons case . fitzh . na. br●tu . det. id. ib. qui sentir commodum sentire debet & onus . cook lib. . rep. p. . factum un fait it is called of the civilians literarum obligatio . cook on lit. l. . c. . sect . . traditio loqui facit chartam . in deeds the delivery is to be proved . cook rep. goddards case . cook rep. wyndams case . which division groweth from the form or fashion of them . west . part . symb. cook on lit. l. . c. . sect . ● . cook ubi supra . and cook rep. stiles case . cook on lit. cook on lit. l. . cap. . sect . . bacons collections of the law. id. use of the law. cook on lit. cap. . sect . . cook calvins case . quasi deo dandum , i. e. in eleemosynas erogandum . where a man killeth another with the sword of ● . at stile , the sword shall be forfeit as a deodand d. and student . c. . cook on ●i● . l. . c. . sect . ● . dicitur à detinendo because detinet is the principall word in the w●●t . cook on lit. cook rep. s●uth●●tes case . minishew . cook on lat. l. . c. . lit. ten. l. . c. . p. . sect. ● . cook on lit. l. . c. . sect . . fulbecks prepar . id. ib. fulbecks parallel . lit. l. . c. . ployden p. . exceptio . perkins ●●● . of testam . p. . ● ▪ termes of law. cook on lit. l. . c. . sect . . cooks rep rooks case . cook on lit. l. . cap. . sect . . termes of law. cook on lit l. . c. . sect . . cook on lit. lib. . c. . sect . . cooks case of execuors . rep. cook on lit. l. . c. . sect . . of what things a didress may be taken . cook on lit. l. . c. . 〈…〉 . ● . cook rep. cases vpon the statute and ● rep. ●●●●allyes case , and ●n l●● . l. . c. ● . ridly of the civil law. cook on lit. buries case rep. cook on lit. l. . c. . sect . ● . and ● rep. kennes case . brac. l. . tract . . c. . n. . i ambert in his perambulation of kent . camb. brit. liber dome ▪ dei varie app●llatur , viz. censuali● angliae , ro●ulus win●oni● , 〈…〉 : angli● notitia & liber judiciarius , 〈…〉 in anglici enim ●●●●● archi●is augustissimum & 〈…〉 a i●●d●● crinelia monumentum prostat 〈…〉 r●●ni anti●ua p●litia antiquarum legum & v 〈…〉 ●●nsu●tudinum verae origines & solidissima fundamen●● 〈…〉 sunt continentur iste ingens duobus tomis sive 〈…〉 thesaurus , & in ips●s s●accarii magni angliae fisci●●a●ibus s●●●ma cum vigilantia & cautela reponitur dominus simonds ●eus in epist●la manuscripti istius praefixa . cook on lit. li. . cap. . sect . ● . d●s is derived ex donatione , & es● quasi donarium , because the law it self giveth it to her . id. sect . . id sect . . cook on lit. fulbecks p●epar . an. . iac. . c. made perpetuall by . iac. . . ex duritia of straight imprisonment or hard intreaty . doderidge . fitz. nat. brev. . c. cook on lit. l. . c. . sect . . terms of ●●● . fulbeeks prepar . cook on lit. l. . c. . sect . . dyer fol. . . h. . . cook l. . rep. fol. cowel instit. cowels interpreter . some derive it from the word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 to accuse . if it be uncertain , it is not good . stamford pl. of cr. l. . c. . stam. ubi supra . brooks abr . rep. cases of appeals and indict . cook rep. calv. case . stamford pl. of cr. vi & armis must ●e in all endictmen●●●● treason , murder , selony ▪ 〈…〉 else it is not good . d. and student . c. . . ad proximum antecedens fiat relatio . lambert . eirenarch . , . cook on lit. p. . ad ea quae frequentius accidunt jura adaptantur . d. and student . c. . if he be commited for felony . plowden term . hil. in quarto . ed. . renig . against fogassa . stamford ▪ pl. of cr. id. pl. of cr. l. . c. . l. dyer . term. hill. an . . reg. eliz. cook rigewayes case . rep. cook boytons case . rep. plowd . commen . plato's case . cook on lit. p. & . escheats by civilians are called caduca . cook on lit. l. . sect . . id. l. . c. . sect . . status dicitur à stando because it is fixed and permanent . cook on lit. see cooks part of instit. c. . cook rep. goddards case . à gallico estouer , id est fovere ma●eriam exhibere . see cooks part of instit. c. . vide vossium de vitiis sermonis . l. . c. . bracton l. . c. . animalia vagrantia bracton or vacantia as others call them , quia domino vacare debent . the common law extendeth derelictum both to that which is voluntarily forsaken , and to that which is waived and left by necessity . an executor of a last will and testament executing and performing the will of the dead iudg doderidge . debts due by obligation , shall be payed by executors before debts by single contract , and they before legacies cook rep. duchons case . cook rep. tamors case . cook on lit. p. . cook rep. nedhams case . smiths common-wealth of england . quod non est debitum vel quod est ultra detum , vel ante tempus quod est debitum . cook on lit. l. . c. . sect . . cook on lit. lib. . c. . sect . . pl. com. . br. grant. . in the civil law is called fidelitas . cook l ▪ . berits case , and on lit. l. . c. . sect . . littleton and cook n lit. ridleys view of the civil law. nec gothicam feudi vocem abhorream ; ed significatur genus clientelae , quo vel praedium , cui quam datur , ut & auctorem agnoscant caput , honorem , at vel dignitas , vel vectigal ipsi , & posteri , beneficii pro patrono , ejusque fortunas defendant , vossius de vitiu sermo●nis l. . c. . cook on lit. l. . c. . id. ubi supr● . haereditas corporata . haereditas incorporata . a plow or hide of land which is all one , is as much as one may plow in one year . cook rep. lowes case . it is derived of foedum quia est donatio foedi . cook on lit. l. . c. . sect . . perkins tit . fe●ffments . id. ib. termes of law. ideo dicta est felonia , quia fieri debet felleo animo . cooks r. bedlies case . cook on lit. . p. . cooks r. cases of swans . but a trespass . stamford pl. of cr. p. . c. . id. ib. quam varia sunt feloniarum genera , henricus spelmannus , eques auratus in eruditissimo suo glossari● ostendit . vossius de vitiis sermonis . l. . c. . quod suspendatur per collum . cook rep. beverlies case , and on lit. by the statute , de donis conditionalibus , lands int●●iled are not forfeited for felony , but for the life of tenant in ta● the inheritance is preserved to the issues . this statute to continue untill the first session of the next farliament portescue . de laud. leg ang. stamf. l. . pl. of cr. c. . cook rep. shellies case . cook rep. keechers case . cook on lit. lib. . cap. . sect . . stamsord pl. o● cr. l. . cap. . stam● . of prero . c. . e. . . h. . stam● . fol. . . cook l. . sir henry constables case . ubi sactum nullum ibi ●ortia nulla there is a difference in the common law betwixt publick and open force . cook onl it . l. . c. . sect . . cook l. . rep. an. . rich. . c. . an. . hen. . cook on ●●● . cook rep. case of the city of london . cook rep. rigewayes case . versteganus de ●nt . lamberts perambul , of kent verstegan . cook on lit. ●amd . brit. and lamb. perambul . of kent . d. and student . ● . . cook on lit. l. . c. . sect . . cook ● rep. shelleys case . cook rep. gregs case . so called because it is the most honourable and worthy service that a tenant may d● . camd. in lincolnshire . quaelibet concessio fortissimè contra donatorem interpretanda est . cook on lit. lib. . c. . sect . . id. ib. cook re. cook on lit. l. . ● . . sect . . perk of grants . cook rep. sanders case . cook on lit. l. . c. . sect . . fitz. nat. brev . tit . common l. . b. mar. dy. . cook rep-earl of salops case . cook rep. bozouns case . perkins tit . grants . ed. . . cook on lit. l. . cap. . sect . . d. and student . c. cooks re. talbots case . cook on lit. l. c. . p. . b. cook on lit. lib. . cap. . sect . . haeres dicitur ab haerendo , quia qui haeres est haeret , id est , proximus est sanguine , illi cujus est haeres . id. ib. cook ● rep. r●t●liff●s case . soror est haeres facta , therefore some act must be done to make her heir , and the younger brother is haeres natus , if no act be done to the contrary . cook ubi supra , and on lit. l. . c. . sect . . possessio quasi pedis posi●io . cook l. . of r●p . ca●v . case . and on lit. l. . c. . sect . . cook lit. . . cook on lit. l. . c. . cook on lit. l. . c. . sect . . solus deus facit haeredes . cook on lit. l. . c. . sect . . cook on lit. l. . c. . sect . . homage , is derived of homo , and is called homage , because when he doth this service , he saith , i become your man , and in english homage is called man-hood ; as the man-hood of his tenant , and the homage of his tenant is all one . cook on little 〈…〉 n ibidem . cook ubi supra . cook on lit. l. . c. . stamf. pl. of cr. l. . and pulton de pace regis . brooks abr . f. . and stamf. stamford and pulton ▪ delinquens per iram provocatus puriri debet mitius . the chief reason why seipsum ●esen●lendo is not matter of justification , is because law supposeth it hath a commencement upon an unlawfull cause . cook 〈…〉 . of rep. s●mains case . cook . rep. bowls case . lambert . cowel instit . see cook 's part of institutes c. . smiths common-wealth of england . cook re. cases on the statute . hundredum saepe legas in anglicorum regum diplomatibus , & ejus gentis scriptoribus . significat verò partem comitatus , in qua habitarent centum regij fide jussores . explicati us plen● de eo spelmannus . vossius . de vitijs sermonis l. . c. . stamf. prae . r●g . reg. ● . fitz. n. b. fol. . cook rep. beverlies case . fitz. herb. h ● . brev . p. . t●●m . of law. stamf. prae. r●g . reg. c. cook rep. beverlies case . plowd . cominent . p. anu . e. . reniger against fogassa . lamb. iust ▪ of peace . id. ib. cook on lit. l. . c. . sect . . cook. lechfords case . rep. cook on lit. l. . c. . id. l. . c. . cook on lit. l. . c. . sect . . cook on lit. l. . c. . sect . . & l. . c. . sect . . cowels instit . iur. angl. cook on lit. lib. . c. . & l. . c. . cook on lit. l. . c. . sect . . id. ib. cook rep. calyes case . cook ubi supra . proof of one witness sufficient . see the statute primo car●li c. . cook on lit. cook rep. digbies case . cook on lit. l. . c. . sect . . cook on lit. l. c. . sect . . id. ib. sect . . cook l. . rep. marquess of winchesters case . fortescue ● de laudibus legum angliae . de laudibus leg . ang. . c. see the like case determined by king iames in disputations at oxford . r●x . plath p. ●● . . . . pl●yden . partridge against st●ange . fol. . b. cook. cook downams case . ● rep. cook rep. cases of appeals and indict cook on lit. l . c. . sect . . cook on lit. l. . c. . sect . . cambden in britan. cook on lit. d. & student c. . fortescue de laudibus legum angliae , & ▪ ali● . bracton . cook rep. calv. case . in genere he dieth not but in hoc individuo , henry and edward the king. cook rep. cases of ecclesiasticall persons . cook on lit. l. . c. . sect . . foedum militis . cook on lit. l. . c. . sect . . cook on lit. l. . c. . sect . . dr. & stucap . ● . cook on lit. l. . c. . sect . . c●o●s ● re. a●th●●y howescase . f●r ●rigina●● all lands were derived f●●● the crown . cook on lit. l. . c. . sect . . cooks rep. a●u●eds case . terms of law , the indictment must be also coepit & asportavit , or coepit & abduxit . one shall forfeit his goods and be whipped for petty larceny . false latin will abate a writ , not a grant , malagrammatica non vitiat concessionem sal●a orthographia non vitiat ●noce●●onem . cook rep. longs case . bracton ●aith , that lex est sanctio justa , jubens honesta , & prohibens contraria : so as every law must have three qualities . . it must be justa , . jubens honesta , . prohibens contraria . neminem oportet esse sapientiorem legibus , ubi lex non distinguit , nec nos distinguere debemus . lex plus laudatur quando ratione probatur . cook preface to the rep. and on lit. l. . c. . sect . . cook preface to the rep. cook on l●●tieton . cook on lit. l. . c. . sect . . see in fulbecks parallels , chap. a censure of the writers of the law. lease from the french laisser , linquere , relinquere , omittere . cook on lit. l. . c. . sect . . id. ib. id. ubi supra . cook rep. claytons case . id. ib. cook on lit. u●i supra . sect . . cook rep. bishop of bathes case cook rep. cases of leases . cook on lit. l. . c. . sect . . cook ▪ ▪ rep. de libellis famosis . cook rep. de libellis famosis . cook rep. io. lambs case . bracton , l. . c. . cook on lit. l. . c. . sect . . ligeantia est vinculum fidei ligeantia est legis essentia . cook on lit. l. . c. . sect . . and rep. calv. case . cook rep. calvins case . cook on lit. l. . c. . sect . . ● cook on lit. l. . c. . sect . . cook on lit. l. . c. . sect . . and rep. sharpscase . plowden ●o●thrist against beinshin . cook rep. mackallies c●se . cook on lit. cook ubi supra . cook on lit. l. . c. . sect . . lit. tit . vil. lenage . minshew . see bailement . l. dyer . cowels interpret . & innstitut . cook on lit. l. . c. . sect . . maintenance is most usually done by the hand , either by delivery of money , or other reward , or by ●riting on the behalf of one of the parties in a suit depending . cook 's part of instit. c. . cook 's part of instit . c. . cook rep. actons ●ase and on ●it . l. . p. . & rep. countess of rutlands case . dalton . cook on lit. principia probant , non probantur . cook on lit. p. . . dr. and student . cook rep. cook rep. cholmleys case . cook on lit. p. . cook. est quaedam neglectio supina rei cujusquam , à gallico mesp●iser cowels inst. cook rep. wades case id. ib. the party that is to receive it , is to pull it out and tell it . cook on lit. cook on lit. p. . b. monstrum dicitnr à monstrando , varr● . s●aliger . cook on lit. l. b. & . b cook on lit. l. . c. . sect . . cook on lit. l. . c. . sect . . cook rep. porters case cook on lit. l. . c. . sect . and rep. sir rich. lechfords case . cook rep. lechfords case . t. of law. cook rep. cases of appeals and indictinents fol. . ● . the like is in rep. mackallies case , and this reason given , for this is contra potestatem regis , & legis . cook rep. mackallies case . cook r. p. agnes gores case . plowdens comment . sanders case . here sanders was adjudged a principall , and hanged ; but whether archer was accessary here , was a great doubt ; for his offence was in counselling , and procuring him to kill his wife , and no other , for no mention was made of the daughter . pulton de place regis & regni . cook rep et probos & legales homines juratos . cook rep. sir moyle ● finches case . cook on lit l. . c. . sect . . ●itzh natura brev. tit . de libertate probanda . smiths commonw . of engl. c. . cook on lit. l. . c. . cook on lit. l. . c. . sect . . & rep. beverlies case . id. ib. cooks th rep. beverlies case id. ib. cook on lit. & th rep. nevils case cook on lit lamberts iustice of p. c. . pultons iustice of peace . id ib. cooks preface to the d part of his reports cooks th rep. countess of rutlands case . cooks th rep. the countee of salops case , the king calls them companions and cosens , comites & consanguineos . cooks th r●p . nevils case . nocumentum , it comes of the french nuire , id est , nocere cooks th rep. williams case . see more in cook 's part of institutes c. . pulton de pace regis & regni . cook on lit. l. . c. . sect . . cook on lit. l . c. . cook on lit. l. ● . c. . sest . ● . cooks th rep pinness cas● . cooks th rep. both●es case , cook on lit. ● . . c. ● . ●●●● . ● . cooks th rep. curles case . id. ib. anno . r. . c . cook on ●it . l. . c. . sect . ●● . cook th rep. mackallyes case . cook on lit. ploydens commentaries & manninghams case . plo. com. . cook on lit. l. . c. . sect . . ordalium sax●nibus & anglis , dicebatur probatio per aquam gelidam vel ●ervidam , aut candens ferrum . ●andentium vomerum judicium subjit summa mater regis edvardi confessoris . vossius de vitijs sermonis l. . c. . cook l. . de strata marcella . dictus utlagatus quasi extra legem positus . stamford pl. cor. l. . c. . id. ib. cook on lit. l. . c. . sect . . cook th rep. cony's case . cook on lit. l. . c. . sect . . cook on lit , l. . c. . sect . . id. ib. cook on lit. l. . c. . sect . . id. ib. cook th r●p . lifords case . si vetustatem spectes est antiquissima , si dignitatem est honoratissima , si jurisdictionem est capacissima . cook on lit. l. . c. . sect . . id. ib. & preface to the th rep. iudge doderidge . an ordinance in parliament differs from an act that is ordained by one or two of them . cook 's instit . th part c. . cook l. . of rex . case , de prin. b. . h. . h. ployden partridge against strat. s●l . . ● . cook on l●t . l. . c. . sect . . timo iacobi . lamberts iustice of peace . lamberts iustice of peace . pulton . collistrigium cowell . curia pedis pulverizati . iudge doderidge , cowels instit. smiths commonw . of england c. . id. c. . dr. & stud. c. . cook on lit ▪ either a pinfold made for such purposes in his own close , or anothers with his consent . cook on lit. l. . c. . sect . . cook on lit. & preface to the th rep. cook on lit. l. c. . sect . . of eliz. c. . brooks abridg . fol. . b. cook. cook on lit. l. . c. . sect . . prerogativa is a priviledge or preheminence that any person hath before an other , which as it is tolerable in same , so it is most to be permitted and allowed in a prince . stamford . camdens brit. stamfods prerogative . cooks th rep. cook on littleton . prescriptio est titulus ex usu & tempore substantiam capiens . cook on lit. l. . c. . stamf. of the prerog . c. . cooks th rep. baske●viles case . cook on lit. l. . c. . sect . . see imprisonment . stam. l. . cap . cook on lit. l. . c. . sect . . & beverlies case non compos mentis . cooks th rep. blackmores case . cook on lit. l. . c. . sect . . cooks th rep. case . of market overt . dr. & stu ▪ c. . iustinian l. . inst●t . stams . l. . c. . cook th rep. case of swans . cooks th r●p . p●ul . stons case . cook on lit. l. . c. . sect . . cook on lit. l. . c. . sect . . cook on lit. l. . c. . sect . . id. ib. co●k on lit. l. . c. . sect . . cooks rep. bruertons & calbots case . cook on lit. l. . c. . sect . . litis nomen actionem significat sive in rem sive in personam . cook on lit. l. . c. . se●t . . cook on lit. l. . c. . sect . . the offender is called raptor . cook ib. stamford . l. dye● term . mich. annis . & reg. eliz. p. womans laws . cook on lit. l. . c. . cook pret . to th rep. dr. & stu. c. s. cook on lit. l. . c. . sect . . cook on lit. l. . c. . s●●t . . & l. . c. ●● sect . . cook on lit. l. . c. . sect . . &c. . cooks rep. hampets case . relevium is derived from the latin word relevari , quia haereditas quae jacens fuit per ante cessoris decessum relevatur in manus haeredum . cook on lit. & minshew in domesday it is called relevamentum & relevatio . cooks th rep. nevils case , and on li● . relevium ut ho●omanus describit , est honorarium , quod novus vassallus patrono largitur introitus caussa , nomen ex eo , quia morte vassalli , ut vassallus cecidit , siccum eo cecidit seudum , & propterea denuo oporteat relevari , hoc est , attolli . itaque non relevium modo sed & relevatio vocatur . vossius de vitiis sermonis lib. . cap. . cook on lit. l. . c. . sect . . & l. . c. . sect . . cooks first rep. hugh cholmleys case . cook on lit. l. . c. . sect . . doderidge . cook on lit. l. . c. . cooks rep. l. . & on lit. l. . c. . doderidge . cook on lit. wom. law. cooks th rep. wades case . cook on lit. l. . c. ▪ lambert . cook on lit. l. . c. . sect . . replegiare est reposcere bona mobilia dato apud praefectum vade sive fide jussore . sane & anglis breve , per quod bona ea reposcerent to replevin , quasi replegium dicitur sunt verò replegium & replegiare à plegius , vel plegium . plegius vas , sive fidei jussor . vossius de vitiis sermonis . l. . c. . p. of instit . fol. cook on lit. l. . c. . sect . . cook on lit. l. . c. . sect . . it cometh of the latin word revertor , and signifieth a returning again , therefore reversio terrae est tanquam terra revertens in possessione donatori sive h●redibus suis post donum finitum . cook on lit. cook on lit. l. . c. . sect . id. ib. sect . . id. ib. sect . . id. ib. c. . sect . . cook l. . rep. edw. althams case . cook on lit. l. . sect . . either because they bereaved the true man of some of his robes or garments , or because his money or goods were taken ●ut of some part of his garment , or robe about his person . sir edward cook 's d parto● instit. ch. . cook th rep. ashpooles case . stamford dr. & stu. eliz. . c. cook th rep. southcots case . . b. & on lit. l. . c. . sect . . id. ib. from the french word ●ou●e id est , turma . cook on lit. l. . c. . sect . . cooks th rep. bredimans case . cook on lit. l. . c. . sect . . vita reipublicae pax . vicem gerens seu vicarius comitis . cook preface to d rep. cook th rep. mittons case . cook on lit. l. . c. . sect . . cook ●th rep. cirringhams case . cook on lit. l . c. . sect . . cook on lit. l. . c. . sect . . fortescue de laudibus legum augliae . cooks th rep. cases of swans . cooks rep. the countess of salops case , seneschall is derived of sein , a house or place , and schal an officer ●r governour ; some say that sen is an antient word for iustice , so as seneschall should signisie officiarius justitiae cook on lit. l. . c. . sect . . cook on lit. l. . c. . sect . . cook on lat. l. . c . sect . . cook ib. fol. , . cook rep. l. . nevils case , fol. . b. cook rep. l. . paines case . p. . b. cook rep. nevils case p. , , cook rep. beresfords case . perkins tit . faits , f. . a littleton cook rep. l. . princes case , f. . a cook lovels case . cook on lit. l. . c. . sect . . id. ib. id. sect . . cook on lit. l. . c. . sect . . and . rep. lewis bowles case . id. on li● ▪ ib. cook on lit. l. . c. . sect . . see afore tit . cook on lit. l. . c. . sect . . voluntas testatoris ambulatoria usque ad mortem , testamentum morte consummatum est . ultima voluntas , a last will is the disposition or bestowing of a mans own goods and lands taking effect after his death . perkins tit . of testam . perk. ib. cook rep. veres case in the latter end of princes . fitzh . abri . administrat . perk. tit . test . f. . plowd . in case inter paramor & iurdley fol. . cook rep. marquess of winchesters case . lands holden in burgage and gavelkind are devisable by will. stat. h. . anno c. . dr. and student . l. cap. . perk. tit . d● devise . fitz. abrid ▪ exec . ▪ cook on lit. l. . c. . cook rep. edward althams case . cook rep. preface to the reader cook on lit. l. . c. . sest . . villa quasi vehilla quòd in eam convehantur fructus vicus because it is prope viam . transgressio dicitur à transgrediendo , because it passeth that which is right . cook on li● . p. . fitz. herb. n. brev. tit . tre●p . l. dyer . cook. rep. ●●ellies case alta proditio , & prodit to parva . proditorie must necessarily be used in every indictment of treason . stams pl. of c. l. . c. . with dr. boys his gloss . the romans called high treason laesam majestatem . stamf. pl. of cr. l. . c. l. dyer . ter . hil. an . . & p. & m cook on lit. brook abri . fol. . fitz. coron . . . ployden . it is called in the common law treasure trove , that is , treasure found . lambert . see cook 's d part of instit. c. . iudge doderidge english lawyer . cook on lit. lambert perambul . of kent . lit. lib. . cap. . sect . . cook on lit. p. . cook rep. claytons case . the statute of k. iames , c. . forbids taking above in the , that of queen eliz. above . cambden of durham . cook on lit. l. . c. . id. ib. vadiare cometh of the french gager , id est dare pignus , pignore certare , to put in a surety . minshew . books tit estray and waif . a thing pro derelicto , habita , waived and forsaken , is nullius in bonis . e. . e , , . e. . brief . . cook rep. foxleys case . cook on lit. l. . c. . sect . . wapentakia a wapen . hoc est , armis : quae quoties novus esset hundredi dominus , ei in subjectionis signum reddebant . vossius de vitiis sermonis l. . c. . smiths common wealth of england . c. . warrantum est se , curitas à venditore praestita emptori , quo tranquille aliquid possideat . eaque a significatione warrantizare dicitur warrantus sive venditor , quando se empto obligat per acta curiae aut chartam , aut contractus instrumentum ▪ vossius de vitiis sermonis . l. . c. . it comes from the french word garein , id est , vivarium , dr. cowell instit. cook on lit. p. . brooks abr . tit . chattels p. . b. cook on lit. l. . c. . sect . . and rep. harle●anders case . fol. , fitzh . nat. brev. h. cook l. . rep. countes de salop . fol. . at the common law no remedy did lie for waste , either voluntary or permissive , against lessee for life , or for years , because the lessee had no interest in the land , by the act of the lessor , and it was the lessor his folly not to restrain the lessee by covenant or condition , cook 's rep. cook on lit. l. . c. . sect . . id. ib. id. ib. cook rep. forse and hemblings case . edw . fitz. coven . h. . . . perk. cap. de grant. nat. brev. fol. . nat. brev. fol. . . perk. fol. . a perk. fol. . b h. . . p. . perk. f. , h. . p. . nat. brev. f. . plowd . comment . a bret. and rigdons case . dr. and stud. f. . plowd . comment . fol. . . h. . . cook rep. fol. . h. . dyer fol. . dr. and stu. fol. . plowd . comment . fol. . h. . . doderidge . see smiths common-wealth of england . l. . c. . cook rep. sir henry constables case . id. ib. dr. and stud. see cook 's d part of instit. c. . of the severall sorts of writs , and of the difference between a writ and an action . cook on lit. l. . c. . cook preface to second rep. cook l. instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of robberies, burglaries and other outrages. england and wales. council of state. this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason .f. [ ]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing e thomason .f. [ ] estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; : f [ ]) instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of robberies, burglaries and other outrages. england and wales. council of state. sheet ([ ] p.) printed for edward husband, london : . issued nov. . signed: in the name, and by order of the councel of state appointed by authority of parliament. annotation on thomason copy: "nou: ". reproduction of the original in the british library. eng law enforcement -- england -- early works to . a r (thomason .f. [ ]). civilwar no instructions to be observed by the several justices of peace in the several counties within this commonwealth, for the better prevention of england and wales. council of state. a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion instructions to be observed by the several iustices of peace in the several counties within this commonwealth , for the better prevention of robberies , burglaries and other outrages . vvhereas great robberies , burglaries and other outrages are daily committed , to the exceeding great damage and danger of the commonwealth , it is therefore , in pursuance of the special order of parliament to us directed , ordered for the future , that the ensuing directions be forthwith put in execution by all justices of peace in their several counties ; viz. i. you are to cause all laws in force against rogues , vagabonds and sturdy beggars , to be duly and effectually executed . ii. you are to cause sufficient watch and ward to be kept by persons able in body , with bills , guns , or other weapons , in all fit places and towns adjoyning to any great road ; and that you give order to the constables of every such town , that posts , rails and gates be set up in every such place and town , to the end to examine all passengers , as also thereby to stop the speedy flight of all thieves and robbers . iii. and in order to their more speedy apprehension , you shall give order , that they have in readiness in every such town , an expert person and an able horse , to be a guide to such as at any time shall be in pursuit of thieves and robbers . iv. you shall give order , that as they shall meet with , or apprehend any such , or any whatever suspitious persons , that they forthwith carry them before the next justice of the peace , to be by him proceeded withal according to law . v. you shall take care effectually to suppress all unlicensed alehouses , and all such alehouses and houses whatsoever , usually entertaining travellers and strangers , which do stand in blinde corners out of the view of towns or houses . vi . that to all such as shall necessarily be continued , and all and every the innholders within their counties , you shall give order to give in writing every night , viz. by six of the clock in winter , and by eight of the clock in summer , to the justices of the peace , or to such other as shall be by them deputed , of the number of all travellers lodging within their respective houses , and whither they are travelling : with a full description of their apparel , of their horses , geldings and mares : and in case of default herein by any innholder or alehousekeeper , he or they so offending are to be suppressed , and not suffered after to hold or keep any inn or alehouse : and you are to give order to the several constables , to return you a weekly account of their proceedings herein : and you are every moneth to give an account of your proceedings to this councel . signed in the name , and by order of the councel of state appointed by authority of parliament . london , printed for edward husband . . some new cases of the years and time of king hen. . edw. . and qu: mary; written out of the great abridgement, composed by sir robert brook, knight, &c. there dispersed in the titles, but here collected under years. and now translated into english by john march of grays-inn, barrister. all which said cases are hy [sic]the translator methodised, and reduced alphabetically under their proper heads and titles. with an exact table of the principall matter contained therein. graunde abridgement. selections. french (law french) brooke, robert, sir, d. . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing b estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) some new cases of the years and time of king hen. . edw. . and qu: mary; written out of the great abridgement, composed by sir robert brook, knight, &c. there dispersed in the titles, but here collected under years. and now translated into english by john march of grays-inn, barrister. all which said cases are hy [sic]the translator methodised, and reduced alphabetically under their proper heads and titles. with an exact table of the principall matter contained therein. graunde abridgement. selections. french (law french) brooke, robert, sir, d. . march, john, - . fitzherbert, anthony, sir, - . [ ], , - , - , [ ] p. printed by t.n. for richard best, and john place, and are to be sold at grays-inn gate, and furnivals inn-gate in holborn, london : . edited by john march from "la graunde abridgement" compiled by sir robert brooke, which was based in turn on the work of the same name by sir anthony fitzherbert. text and registration continuous despite errors in pagination. includes index. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database 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for keying and markup - aptara keyed and coded from proquest page images - melanie sanders sampled and proofread - melanie sanders text and markup reviewed and edited - pfs batch review (qc) and xml conversion some new cases of the years and time of king hen. . edw. . and qu : mary ; written out of the great abridgement , composed by sir robert brook , knight . &c. there dispersed in the titles , but here collected under years . and now translated into english by john march of grays-inn , barrister . all which said cases are by the translator methodised , and reduced alphabetically under their proper heads and titles . with an exact table of the principall matter contained therein . london , printed by t. n. for richard best , and john place , and are to be sold at grays-inn gate , and furnivals inn-gate in holborn , . to the reader . reader , when i considered what great care our parliament had taken of the publick good ; in enacting our laws to be translate● into english , the●● which , certainly nothing more equall , that the people might in some measure instruct themselves in that to which they are bound to obedience ; and of which by the law it selfe , they cannot , nor must not plead ignorance . and when i had likewise considered the excellent , and most usefull law that is contained in this little volume called petty brock ; i thought it a labour servicable to the publick to translate it , which i here present you in your own language : make use of it , and you will finde magnum in parvo , great benefit in this little work ; and i doubt not give him thanks for it , who is ambitious of nothing more then to be yours , and the common-wealths most faithfull servant , jo : march : the table . abridgment . page damages increased after issue and verdict upon it page costs ibid acceptance . lease of a tennant for life is void by his death void , and voidable lease , diversity acceptance by the issue in taile of the second lessee ibid privity ibid diversity ibid apportionment ibid acceptance by him in remainder ibid acceptance by the successor of a bishop ibid payment at another place action popular within the yeer ibid action upon the case mill where an action upon the case lies , where not , diversity ibid delivery of goods traversed in detinue ibid negat pregnans ibid action upon the case for calling a man perjured ibid action upon the case for caling him perjured and justification in it . ibid of his own wrong . bar in an action upon the case , by law wager in det . ibid plea to avoid double charge ib travers ibid action upon the case upon finding of goods evidence ibid action upon the case upon a devenerunt to the hands of the defendant ibid evidence ib place in an action upon the case . assumpsit is not local place in det . is not traversable ib action upon the case against executors . ib not guilty a good plea in an action upon the case , and where not hiis similia in an action upon the case ib action upon the case , upon trover . ib the conversion to use traversed ib evidence ib action upon the case , for not payment of marriage money action upon the statute his freehold no plea in an action upon the statute ib upon the statute of . r. . his freehold . ib avowing upon the statute , and by common law diversity ib disclaimer ib his freehold is an action upon the statute of . r. . ib disseisor ib accompt account against disseisors ib privity necessary ib account against a gardjan ib pleading ib adjournment cause and place of adjournment . ib demurrer ib dubious verdict ib forreign plea ib certificate . ib administrators ibid administration committed , pending the writ ib who shall commit administration vacate ib episcopatu . ib relation ib power and interest certain ; diversity who shall be said proximo de sanguine to take letters of administration by the statute ib civil law , the law is since adjudged otherwise see ratcliffes case my lord cook ib land which is a chattel shall by office age arreares of rent ●or● of annuity and damage ib diversity ib scire fac , against the heir ib thing real and thing personal diversity ib avowry ib costs ib where debt lies , and where a scire fac . diversity ib where the king shall have his age , where not ib age of a parson , prebend , &c. alienations ibid where the heir within age shall be in ward , where not ib alienation by tenant in fee and by tenant in taile diversity ib relation of an office diversity fine for alenation , intrusion , licence to alien inmortmaine ib variance from the licence ib fine levyed ib averment ib two joyntenants , the one releases to the other diversity fine upon release , & upon conu●ance of his right , &c. diversity ib estoppel ib licence to alien for life ib burgage tenure ib devise is an alienation ib alien see tit. denizen alien alien purchase ib office ib information ib the king shall have a lease for yeers purchased by an alien . ib amendment ibid variance amended after judgment ib amendment after a writ of error came to the common bench ib in what thing the king shall amend his declaration in another term appeal ibid not guilty in an appeal ib se defendendum ib evidence ib justifie ib indictment before the coroners and before othe justices ib diversity appeal for homicide ib woman intiuled to an appeal of death of her husband , loses it by marriage ib quarentine ib coroner and his power ib apportionment contract apportion ib approportionment by the common law upon purchase ib quaere ib where a rent service shal be apportioned , where not , see before ib recovery or discent of parcel rent charge ib arbitrement ib pleading of a condition in barr ib replication ib see tit. conditions ib assets in their hands , see tit. extinguishment demurr upon evidence ib legacies shall not be paid before debts ib assets per discent assets by discent . judgement upon assets found false plea ib assigne assignee charged with the covenant of his grantor ib audita quer . ib assise baily examined in assise ib attachment shall not be de bones alterius quam ten . ib of what things an attachment ought to be election of his tenant ib assurances fine with proclamation to bind tenant in tail , and his issue the law is now otherwise : see the case of fines in my lord coke ib five years for the issue in tail to claim ib equity ib quaere ib . hen. . cap. . ib rast. fine . . ib privity ib f●ne confessed and avoided ib intendment averment ib fine by conclusion ib stranger ib fi●e with proclamation by the tenant in tail , the reversion or remainder to the king and common recovery ib diversity ib see my lord cokes first book ib quere common recovery by the common law , and after the statute diversity ib assurance that the heir should not sell to except the last obligation ib attaint false quantity in demands ib attaint upon an appeal of maihew ib ataint for termor ib gardjan and tenant by stature merchant ib jurors take conusance and notice of a thing in another county place not traversable ib trespass transitory , and locall diversity information ib attorment where the attornment in the absence of the purchaser shal be good , where not , ib quaere avowry made without attornment , and the contrary ib fine levied ib per que servitia ib where a grant shall be good without attornment ib attornment necessary , where not attornment upon grant of a reversion of a term ib diversity ib whether services pass by feoffment of the mannor without attornment lease for life , and grant of a reversion for years , to commence after ib attorney in what case a man shal make an attorney , what not ib audita querela ib feoff or the heir of the conusor shal have contribution ib contra of the conusor himself averments see tit. pleadings where a man ought to aver , that the one , and the other , are one , and not diverse , and where ècontra ib predict serves for an averment ib averment upon avowry avowry land charged with two distresses by dower of part ib partition is cause of two distresses ib avowry changed without notice and ècontra ib sale by deed inrolled fine ib recovery ib discent ib quere ib how and in what place notice shal be made ib que estate in another person ib diversity ib avowry upon the land by the statute of . h. . cap. . and the answer in it his free hold in avowry for damage feasant ib no seisin , and yet ward limitation in avowry ib seisin traversed in avowry ib bar. bastardy . vvhat divorce may bastardise the issue , what not ib divorce after death ib battell . before whom bartell shall be made and tried ib bill premunire by bill ib cerciorary . mittimus ib cerciorary to remove indictments ib certificate of the bishop . ib averment contrary to the certificate of the bishop ib challenge many hundreds ib challenge ib charge . charters of pardon for what thing pardon shall serve , and for what gift or restitution is necessary ib pardon before office , and after diversity ib where relation of an office shal not defeat a mean act ib pardon of alienation by parliament , and letters patents diversity amoveas manum ib intrusion pardoned before office and after office diversity ib livery ib full age ib chattels remainder of a chattel devised ib diversity chose in action thing in action ibid thing in action vested in the king by the stat. . h. . ib thing in action personal , mixt and real diversity ib clergy no clergy in petty larceny bishop or metropolitan hath his clergy ib laps for the ordinary metrop . and the king ib bigamus ib heretik ib excom . ib jew ib turk ib greek ib roman ib cecus ib quere ib bastard colour matter in law ib to the plaintiff ib to one mean ib to the defendant ib poss. determined ib poss. defeated ib feoff . release ib fine recover ib diss. reentry ib property ib upon a bar ib by a mean ib writ . ib justifie as servant poss. in law ib commission made knight after the commission ib where one commission shall determine another ib et e contra ib diversity betwixt commission of goale delivery , and oyer and termyner justice of the common bench , made justice of the kings bench ib kings bench error justice of the common bench , chief baron of the exchequer or of oyer and termyner , or goale delivery ib voydence by creation a bish ▪ ib quere ib oyer ib oyer and termyner ib peace ib goale delivery ib error in pleas proces or out law . ib justice of peace made knight of every commission ib grant , & commission , diversity ib commission read or proclaimed ib notice no such in rerum natura ib commission unica vice ib commission determined in part ib commission in eyer ib kings bench diversity ib justice for term of life ib commission determined for want of adiournment . ib where the records shall remaine . ib conditions special shewing of the performance of the condition contained in indentures ib limitation of payment , and not condition executors ib ordinary ib testament ib tenure , & condition diversity ib avowry ib causa matrimony praelocut . ib condition performed by reason of death , et econtra ad intentionem , is no condition he which will have advantage of a condition , must give attendance ib condition shall not be apportioned ib conditions performed where proviso shall make a condition , where not ib quere infra terminum . an . & infra terminum predict . diversity , surrender . foreiture ib reading defeasans ib arbitrators ib the reason seems because the submission is conditional ib acquitted saved harmless , and discharged ib diversity ib non damnificatus est ib payment at another place ib pleading of a condition in the negative , and in the affirmative , diversity condition that the estate shall cease ib confess and avoid where a man confesses and avoids , there he shall not traverse ib confirmation bishop charges with the assent of the dean and chapter ib misnamer ib sigillura ib relation where a confirmation shall be 〈◊〉 by the bishop , dean , & chap et e cont ib interest and judiciall power , diversity ib patron hath fee ib where the conformat . of the new king is necessary , where not franchise ib these words for him and his heirs in the grant of the king ib et è contra ib conscience subpena to execute an estate ibid vendee shall have see without words heirs ib continuances ib imparle to a day in the same term in a common recovery ibid contract contract cannot be divided ib obligation determines contract ibid diversity ib corone crown a man pleads not guilty , and after pleads pardon ib felon after judgement , had the priviledge of the church ib attainder by premunire , and attainder of felony , diversity ibid woman with child shall not have the benefit of her belly but once ib woman bigg judg'd to be burnt indictment ib appeal ib who shall be said principall ib a man killed at sword and buckler or at justing indictment in the time of one king , shall serve in the time of another ib certiorari ib indictment , not discussed pending the commission of oyer and terminer ib cerciorari mittimus ib indictment before justices of oyer , &c. and before just. of gaol delivery , diversity ib burglary burglary ib clergy of the principal , shal not serve the accessary ib acquit as accessary , and after arraigned as principal ib woman abjured accusation in case of treason , and misprision ib tryal of treason by the common law ib tryal of petty treason civil law ib witnesses , and accuser diversity . ib challenge ib abjure for treason ib quere ib tryal of felony ib removing of the prisoner out of the kings bench to the countrey a man takes the church , and will not abjure ib church serves for forty daye● abjuration , and day to doe it ib sanctuary pro vita hominis ib grant , or prescription to have sanctuary for debt , good , and where not church suspended ib church , and sanctuary ib abjuration discharges felony ib abjure for petty larceny ib judgement of life and member is felony ib corporations fail of the name of corporat . ex parte quer . & ex parte def . diversity ib quere abbie extinct ib quere ib creation and gift in one patent ib patent to two intents ib costes costes in a quare impedit . penalty given by statute ibid nonsuit ib defendant shall have costs by statute ib covenant covenant without words of covenant for him , his heirs and execut : ib coverture . deed inrolled by a feme cover by the common law , and by custom diversity london ib count count against the tenant , and prayee in aid court baron t is no mannor , without suitors ib where steward , or under steward may let by copy , and ècontta ib quere ib customs . custom per tot . angliam , and custom in a city or county diversity damages damages abridged and increased upon inquest of office ib contra upon issue tried betwixt parties ib costes ib where attaint lies , where not . default default after réceit demurrer . demur upon office ib for what tenure , livery due to the king ib misrecital of a statute denizen . see tit alien denizen and alien ib king cannot alter his law by his patent ib escheat ib deputie office assigned over detinu . debt debt upon indent . of covenant , in which are words obligat . ib where payment is a good plea in debt , without acquittance , or writing , & ècont . shewing of deed ib once barred upon an obligation , t is for ever ib debt for release ib devise testament by a feme covert by assent of the husband ib countermandable after her death ib devise by the husband to the wife ib estate for life by intent , and devise good by implication ib devise to a common person in london , and devise in mort. in london diversity where survivor shal not hold place in a devise ib in feodo simplici ib where all the executors shal sel , and where one may ib quere ib devise that his executors shal sel post mortem i. s. devise that the feoffees shal make an estate , where he hath no feoffees ib sale of land by executors after disseism , recovery fine levied , or discent . title of entry , and right of entry , diversity ib where the property is devised , and where the occupation , diversity ib devise the occupation ib devise that every one shal be heir to the other ib words to make a remainder devise to do at his pleasure ib where the heir may waive a devise , and ècontra . discent ib diversity ib devise tols a discent , and no remitter waive devise ib divorce acts executed before the divorce ib diversity ib cui ante divorcium ib discent remainder to the right heirs ib none can be heir to a man attaint . ib gavelkind ib diversity . ib casus sir john hussey ouster l' main ib heirs males , name of purchase . ib treason diversity where the ancestor hath some estate , where not ib remainder remainder ib remainder ib remainder in abeyance remainder heredibus mascul . de corp . & rectis hered . diversity ib discent to an heir in ventre mirs ib recovery against tenant in tail , the reversion in the king ib the king tenant in tail cannot discontinue by grant by patent so t was determined in the case of the lord barkley ib discontinuance of proces diversity betwixt discontinuance , and parol saus jour ib dismes , tythes lay man shal pay tythes for spiritual land , otherwise of a man spiritual ib disseisor . lease of land of another man ib commander is a disseisor ib distress pound overt ib pound breach : ib done , gift what passes by words omnia terras & tenementa ib gift of a chattel by the king ib what passes by grant of omnia bona ib dower dower of a rent reserved upon a lease for years , and for life ib judgement , & cesset executio . ib what joynture shal be a bar of dower , and what not ib devise by the husband to the wife ib dum non fuit compos mentis fine levied before a judge off non saue memory , and a gift of an office by him diversity ib ejectione custod . ejectione custod . of a rent before seisin ib contra of land ib enquest where a peer of the realm is party , knight shal be in the jury ib quere ib enquest taken de bene esse ib enquest recharged after verdict ib entre congeable . lawfull entry . land given habend to the grantee , and ●e●●dit●pro termino no vita ib where he in reversion shal falsifie recovery had against tenant for life , where not aid prayer of a stranger is cause of forfeiture ib entry lawfull where not ib recovery against cestuy que use in tail ib recovery against cestuy que use in tail and the entry of the feoffes tolled ib use in tail ib quere equity ib exposition of a statute ib fine by ten in tail in use , or possession ib casus wimbish ib recovery void averment ib recovery upon a true title falsified ib covin ib entry or distrain upon the patentee of the king , contras . upon the king ib who shal travsere an office . ib entry by a purchasor of a reversion , for condition ib equity ib error teste misordred in a writ ib escape first sheriff suffers the escape , and retakes , and the second sheriff suffers him to escape again ib escheat foundership escheated , or forfeited ib heir ib writ of escheat where the tenant died not seised ib right of entry● escheat ib acceptance ib disseisor diversity ib acceptance ib alience ib essoigne essoign upon the vjew , or voucher ib error ib diversity ib estates casus sir t. lovel , heredib . mascul . by patent of the king , and in grant of a common person , diversity estate in fee during the life of i. s. ib grant or feoffment , and devise diversity ib diversity ib tail executed by reason of an immediate remainder devi●ee shal have fee without words , heredibus , or imperpetuum ib estoppel prescription gon by acceptance of a grant ib who shal plead a record for estoppel ib privity respit of homage by . ib livery ib partition ib lease confessed and avoided ib a man makes a fine upon an indictment of extortion , or trespass , and after pleads not guilty the entry in making a fine ib protestation ib estoppel by pardon pleaded ib quamdiu lease for years of his own land shall be an estoppel ib stranger defeasance to a stranger , and where to the defendant ib diversity ib shewing of deeds ib estray who shal have property in an estray ib executions of a thing executory , a man shal have execution for ever , by scire fac . ib execution upon an obligation conjunctim & devisim , and satisfaction diversity ib vinica executio capias ad satisfaciend , not retorned ib executors executors denied the deed of their testator ib judgement thereon executor of executor ib two executors , the one not to meddle by a certain time ib executor hath a term and purchases the reversion in fee assets ib exposition extinguishment corporation ib restitution by parliament revives a seigniory or tenure which was extinct by attainder of treason by parliament extinguishment and suspension diversity ib seigniory ib executor hath a term and purchases the reversion in fee assets ib devastavit ib diversity ib the first lessee for years purchases the fee simple ib faits , deeds deed bears date beyond sea ib place traversable ib verba post in cujus rei , &c. ib faits inroll ; deeds inrolled deed inrolled by a feme covert , by the common law , and by custom , diversity ib london examination ib fine levied ib livery of seisin ib feoffment to the king ib relation of an inrolment ib fauxefier , falsifying who shal have attaint ▪ or error ib faux imprisonment , false imprisonment authority of a constable , or a justice of peace ib in nullo est erratum ib tryal in false judgement , and in writ of error , diversity ib fealtie a man shal not doe homage for tenures to a man ; nor to the king ib king ib homage ib corporation ib feoffements feoffement of a house cum pertinen . ib feoffement for maintenance ib exposition of a statute ib remitter feoffement to four , and livery to the attorney of the one for all ib second lessee suffers livery ibid feoffement of a moyty ib feoffement and delivery of the deed upon the land acre in possession and another in use ib plead feoffement infra visum feoffement infra visum terre feoffement to many , and livery to one in the name of all . diversity feoffement void by statute ib feoffements to uses fitz. seised to the use of the father ib tenant in taile shall not be seised to anothers use . ibid use express . ibid . ibid who shall be seised to anothers use , who not ibid corporation cannot be seised to a use . ib in the post mortmaine ibid escheate ib perquisite ib recovery ibid dower ib . ibid courtesie ib use in taile ibid . ibid tenure is consideration in law ibid termor shall do fealty ibid rent reserved a good consideration ib use changed by buying ib use at common law tenure ibid to whose use the feoffee shall be seised before statute of tenures , and to whose after , diversity ib feoffee by collusion shall be seised to a use . warde ib feoffee causa matrimonii prelocut . seised to a use . quere deceite ib cestuy que use in ●remainder or reversion may sell , but not make a feoffement ib recovery against feoffees to a seisen taile ib notice of the use ib statute expounded notice of the use material ib et è contra ib when a man may change a use , when not ib use in taile determined ib to make a use to commence expectant by covenant mesne to bind lands with a use , to whose hands soever they shall come ib notice of the use ib recovery against cestuy que use in taile . and the entry of the feoffees taken away ib use in tail quere ib equity ib exposition of a statute ib fine by tenant in tail in use , or possession ib recovery to the use of covenants and agreements in indent . &c. where a covenant shal change a use ib a woman seised to the use of her husband where these words ( shal take the profits ) makes a use , and where è contra use cannot be contrary to the consideration ib what is sufficient covenant to change a use ib recovery against cestuy que use in tail by sufferance vendee shal have fee though he hath notice of the use ib use to alter the free hold from one to another by statute ib entry ib quere ib ex post facto recovery to binde the tail in use ib use vests in the heir as heir of his father , where the father was dead before the use came ib relation quere ib warde ib gift of chattels to a use ib statute expounded ib fines levies , fines levied covenant for assurance of a joynture by fine infant shal not levy a fine ib who shal take the first estate by fine , who the remainder ib fine sur conusance de droitame ceo by a. to i. and i renders to a. the remainder to the wife of a. who was not party to the writ ib fine levid by cestuy que use for life use forfeit ib quaere ib fine levied by cestuy que use in tail ib use in tail . quere ib quaere ib london deeds inrolled ib another of the same name levies the fine ib error ib dedimus potestat . conventio ib lease for years by fine to bind the tenant in tail ib estoppel ib infancy ib coverture ib reservation to a stranger ib distress ib lease for years made by fine who may take a fine by the statute de finibus & attornatis ib quere fine in hamlet ib fine in hamlet , or ville decayed ib writ of dower ib forcible entry where a man may hold with force , where not ib remitter quaere ib forfeiture of marriage ib tender not traversable ib forfeiture de terre , &c. ferfeiture of land , &c. forfeiture in an attaint and premunire , diversity ib attainter by parliament clerk convict shall forfeit his goods ib formedon diversity formedonupon taile which commenced in use and is executed upon the stat. . h. . ib general writ and special declation ib formodon upon a use , general writ and special declaration diversity ib form wood before pasture in plaint of assise ib frankmarriage . frankmarriage with a man ib frankmarriage , the rem . in fee ib garde , warde vvhere the heir within age shall be in ward , where not ib woman out of ward by mariage ibid livery at fourteen yeers ib remainder to the right heirs reversion and remainder diversity ib livery of soccage land lord in knights service shall not ouste the termor , &c. ib where one person shall be twice in ward , where not ib grant of a ward ● king shall not ouste a terme of his tennant , because he hath his heir in ward knight in ward ib viscount mountague ib diversity where an heir is made knight within age in the like of the anncestor , and where knight within age after the ancestors death . ib writ of ward without seisen infra tempus memoriae tenure traversable no seisen and yet ward assent and dissent to marriage ib divorce ib ordinary ib warde and marriage tenure ib two joyntenants and the heir of the one in ward living the other ib garranties ; warranties . collateral warranty ib coverture shall not avoide a collateral warranty upon a discontinuance ib warranty without heirs warranty to rebut , but not to vouch ib general writ . general issue . ib things to be pleaded and not given in evidence ib command ib common ib rent licence ib lease for yeers and at will diversity ib manumission in deed , and in law , diversity . ib not escaped pleaded , and not arrested given in evidence grants office of charge and of profit , diversity ib ousting the officers ib quere grant void for incertainty diversity betwixt grant and devise ib quere ib lease for life and four yeers over ib what shall pass by grant of lands and tenements , or omnes firmas ib ejectione firme bi hariots hariot custome and service diversity ib detinue ib heresie where a writ de haeret . comburend . shall issue , where not ib abjuration diversity ib homage , see tit-fealty ideot ● ideot and unthrift diversiverty ib imprisonment incident court baron incident to a mannor , pipowders to a faire ib grants recovery of a rent service , good titie to homage and fealty ib indictments indictment of death and poysoning ib justice indicted ib diversity ib alter trespas in felony ib intrusion relation of an office , diversity ib where pardon of intrusion excuses , the issues , livery , &c. where not ib diversity joyntenants where successive holds place , where not ib habendum ib reentry by two or against two where the one dyes journeys accompts judggment nonage saves default ib recovery against an infant by default , and by action tried , diversity ib where a man shall be restored to his first action , and where he shall have error , &c. ib recovery of land in one county which lies in another ib vjew intendement ib assise in n. and recovery p●eaded in h. ib condition determined by judgement judgement given with original ib issues joynes ; issues joyned action upon the case upon an assumpsit ib special verdict where the issue is upon an absque hoc ib americiament . ib issue found in part , diversity ib preignancy ib issue in wast ib americiament issues retornes ; issues retorned . see tit. intrusion debate of tithes betwixt lay persons ib spiritual court ib tryal of a thing ultra mare jurors jury took a scroule not delivered to them in court ib leet pain in the leet for redressing anusance forfeited by presentment ib where the lord shal have debt upon a pain in a leet , and where distrain for it leet of the torne of the sheriff ib exposition of a statute leases void lease ib acceptance by the successor of a parson upon a lease for years , & for life diversity ib lease during a lease house ib averment ib lease for life by a parson , and lease for years diversity lease determined for a time and yet good after ib gardjan in chivalry , nor lord by escheat , shal not ouste the lessee lease for life , and lease for years after ib convenit ib concessit ib dimisit ib locavit ib acceptance of rent by the successor of a parson parson shal not have a writ of right ib a man leases for twenty years , and after leases for fourty years ib lease of a bishop ib dean parson ib prebend ib confirmation ib habend , after such a lease ended where there is no such lease ib lease of a prebend . equity ib lease for yeers before livery sued relation of office ib where the wife shall lose her dower ib lease till a hundred pound be paid ib diversity ib lease by a bishop not sacred , and by a bishop deprived diversity ib confirmation lease till he hath levyed . pound ib where the one feast is put before another in a lease ib ley gager , law wager ibid law in detinue of an indent . of lease ib law lies not in a q●o minus ib licences . ibid contra formam collationis lieu place ibid scire facias upon a recognisance ib limitations ib copyhold livery ib where ward , because of ward , shal not sue livery , but ouster l' maine . seiginory revived by suing livery ib where livery shal be of dutchy land , where not general livery and special , diversity . ib mannor purchased by the king shall be in him as in the grantor ib livery , primer seisin ib garde ouster l'main ib where a man shall hold of the king as of his person , and yet not in capite . et ècontra ib extent of livery , and of intrusion , diversity ib attainder of cestui que use by parliament , and of attainder of a sole tenant by the common-law , diversity ibid exposition of a stat. livery by the heir during a leas or devise for years ib where a man shall sue livery ? where not ib what is livery ? what ouster l' main livery of soccage land ib tenure of the king in knights service , and in capite , diversity . ib soccage in capite , and knights service in capite , diversity what livery is ib what primer seisin ib livery in wales , and county palatine ib primer seisin of cestui que use will not performed ib mainprize . svrety upon arrest in london ib priviledge ib procedendo ib revivings . ib where surety upon a bil in banco regis is discharged , where not ib repleader ib power of the justices of the gaol delivery maintenance . ib maintenance by him in remainder or reversion ib sale , where he hath not been seised by a year ib statute expounded . mannor . making of a mannor ib court baron ib suitors ib misnosmer , misnamer . statute avoided by misnamer ib monstrans de faits , shewing of deeds . ib shewing of deeds , and records ib mortdauneester . ib ●eoffment to two , and the heir of the one ib mortdauncester ib discent of reversion , dower ib forfeiture , feoffment , right ib mortmain . ib when a remainder is granted in mortmain , and when a reversion , diversity ib claim ib remainder waived , vse ib appropriation without licence , is mortmain ib lease for or years is mortmain ib otherwise of a covenant for so many years ib or is not mortmain years ib mortmain ib deseisin and discent takes not away the entry of the lord for mortmain ib nonabilitie . ib obligation for usury ib conclusion ib non suit . king nonsuite ib nonsuit upon demur ib nontenure a good plea in an attaint for a stranger ; contra for a privy ib where non tenure shall be a good plea in attaint , where not ib entry in attaint after the last continuance ib nonse name where a woman shall lose her name of dignity by marriage ib notice . ib notice of resignation shall be given by the ordinary ib office de vant. where the king shall not seise without office ib tenant for life , the reversion to the king dies ib full age shal be expressed , when office ought to be certain ib office findes dying seised , but tenuram ignorant . ib where an office intitles the k. to the seigniory , and tenancie ib servitia ignorant . ib melius inquirend . ib foundation not observed land which is a chattel shall be by office ib where the king shall seise without office , & where econtra ib fees granted to him , who after is made justice ib steward and after made justice ib the same man made bailey and steward ib justice of the forrest , and keeper of the forrest ib parson created a bishop 〈◊〉 forfeiture of office i● steward of a forrest and justice ib authority of the justice of forrest sheriff and escheater ib obligation . ib a man bound to b. ad usum ● . who releases ; and good ib oyer of records , &c. see tit. ib monstrans de faits . ib oyer and terminer ib commission of oyer and terminer ib kings bench , alwaies justices of oyer & terminer pain . pain for striking a man in the presence of the king ib panel . part of aliens ; and part of denizens ib tales . error ib parliament ib the king shall hold of no man ib what words in acts will revive seigniories extinct before , what not office for the king ib remitter shall not be where land is assured by parliament in case of a common person , nor in case of the king lease or charge by tenant in tail ib of relation of an act of parliament , diversity pleading of a stat . amendment of the count of the king in another term , contrary of a common person ib elect new burgesses ib parnour , taker of the profits . ib recovery against parnour of the profits , who is in ward of th● king travers by feoffees in use ib pernour ib patents ib licence of the k. not p●rsued ib k. grants by general words ib tail extinct by surrender of the letters patents ● formedon without shewing the patent ib assurance ib constat . surrender patentee leases or gives , & after surrenders his patent . ib constat . quaere bailywick or sheriffwick granted , absque compot . ib tol. fair. market ib assise of fresh-force ib borough english , &c. ib diversity betwixt false suggestion , and false consideration quoere of what lease recital shall be in the kings patent , of what not ib recital in a patent king shall take notice ib constat & inspeximus , diversity ib peace ib breach of the peace ib peremptory the first nihil in a scire facias per emptory ib petition . ib where a man shal have petition where travers ib petition and travers pledgee . ib gage delivered for debt ib distress it as a gage ib pleadings . ib averment of his title ib recovery by default , and action tryed ; diversiry ib non tenure no plea in wast entry to avoid a warranty . seisin during the coverture in dower ib averre the like of tenant for life , or in taile ib where a man shall shew the commencem ent of a use , where not fee simple . fee taile ib plenartie ib where plenarty is no plea ib mortmain . parson inpersonee ib premunire where a prohibition lies , and where premunire ib premunire lies for a thing which never appertained to the spiritual court ib preregative ib priority and posteriority ib land in use where the king may waive issue , where not ib gift of goods by the king ib precipe quod redd . for the king escheat information ib myne . quere . prescription custome shal serve , where a prescription will not serve ib presentation ib two grants de prox , presentatione . ib grant de prox . presentatione ib the king shall present to anothers benefit by his prerogative , for that the ineumbent is made a bishop priviledge . ib priviledg shal dismiss the plaintiff . bill of middlesex ib procedendo . where sureties in london shal remain after the action removed , and econtra ib proclamation , ib pena for making proclamation without authority prohibition surmise to obtain a prohition ib admiralty ib property . alien inhabiting before , and coming after war proclaimed : diversity ib quare impedit presentment of the one joynt-tenant puts the other out of possession ib quare● impedit against the presentee of the king sole ib executors shall not have a writ by journies by the death of the testator , diversity writ and count special ib writ to the bishop ib que estate , whose estate , &c. que estate pleaded by the recoveror or disseisor ib que estate to a mean ib que tstate of a particular estate ibid quinzisme . burrough and upland ib tenth and fifteen , who payes them , and whereof levied . ib quo minus wager of law lies not in a quo minus ib rationabili paerte , &c. ib rationabilisi parte is by the common law ib recognisance . ib cognisee purchases , and cognisor repurchases ib recognisance to be recorded by justices out of term . place ib the king cannot take a recognisance ib who may take a recognisance ib constable . ib record exemplification , & sub quo sigillo ib court baron , & court of record , diversity where the record it self shal be removed by writ of error mittimus . recovery in value this assurance was made by the advice● of brudnel and others justices ib recovery in value to binde the tail ib recovery to binde him , reversion by aid , prayer , and voucher ib ancient demesne ib quere ib warranty ib recovery in value shal not go to him in reversion assurance for to binde the tail vouch recovery to binde him in remainder ib diversity where the remainder onely is warranted , and where the estate for life formedon ib recovery to binde him in rem . &c. ibid joynder in aid ib relation relation of forfeiture by act of parliament ib relation of forfeiture of felony by verdict , and by outlawry diversity ib releases release no continuance ib release of all demands , barrs , entry , and seisure ib relief , see tit. debt remainder , see tit. discent remitter the statute of uses . h. . doth not make remitter ib diversity ib title of entry doth not make ●remitter , contary of a right of entry ib quere repleder jury discharged by jeofail ib rescous ; see tit distress reservations soil excepted , by excepting of the wood ib restitution restitution by parliament ib restore al primer action restored to the first action remitter to the first action , & è contra ib where an action shall be restored after a feoffment ; where not ib retorn de avers return of beasts discontinuance , or nonsuit in second deliverance ib revivings : see tit. extinguishment rit , rout , & unlawfull assembly difference betwixt riot , rout , and assembly ib sanctuory . see tit corone saving default . see tit. judgement scire fac ias . second deliverance . see tit. retorn de aeverse seisin seisin by the hands of an intrudor ib livery ib distress suspended , not seigniory seisin of the king loses not the arrerages ib several precipe debt and de●inue in the same writ ib several tenancy uncertain demand in an assise statute merchant part of the land extended in the name of all ; no reextent . ib proces in another county upon a nihil returned upon a testatum est ib deiberate ib surrender ib when a man may hold the land beyond his term upon a statute judgement ib reversion not extendable ib diversity betwixt a purchase after the statute , and before execution , and where t is purchased after execut ' had execution by executors in the name of the conusee who is dead ib execution for the executors of the conusee conusor returned dead ib retorn of extendi facias , liberate ib supercedias attaint ib sureties death of the king id surrender surrender extra terram ib trespas ib the king cannot record a surrender ib surrender by the first termor ib termor makes the lessor his executor he in remainder surrenders where there is a lease for years in possession ib suitor ▪ two suitor onel coyurt baron ib taile . single voucher and double voucher , diversitie . ib where the assets aliend shall be a bar in a formedon , where not . two sons by divers venters ib collateral warranty by release ib quere ib taile extinct ib surrender ib tenant at will. tenant by sufferance , and at will ib disseisor ib tennant by copy . ib formedon in discender by a copy-holder ib intendment ib where tenant at will , or a termor of a mannor may grant copy-hold for life demise rendring the ancient rent or more ib tenant by sufferance , see tit. tenant at will. ib tender . ib what shall be the attendance in a condition ib diversity condition of reentry for non payments ib at what time the lessee ought to make tender ib tender upon the land ●e contra ib tenures . tenant makes a feoffment of a moyety , this is not pro praticula . the like matter in the cheq . . h. . ro. . ex parte ib remember thesaurarij tenure in capite ib et de honore diversity ib ouster i' main ib socage in capite ib diversity ib to hold by suite of court ib court. mannor testament . where a man shall have for life and where see simplely devise ib payment by the heir , executor or assignee ib quere ib will of mannor by the stat . . h. . testament cannot be without execut. ib where a legacy or devises shall be good , though the devisor names no executors ib feoffment of all after the stat. of h. . ib ward primer seisin ib explanation of wills , by stat. and h. . ib. testmoignes , witnesses . age of witnesses in etate proband . ib titles . see tit. pleadings ib travers of office. title made upon traverse tendered ib traverse dying seized , found by office ib termor cannot traverse . monstrance de droit ib traverse against the king ib where the king shall have prerogative , where not ib. non-suit in traverse and petition , diversity ib. judgement in traverse ib. travers by , &c. action upon the case for making of false clothes ib. seisin in fee traversed in assize ib. the king shall waive his issues . contra of an informer ib. without that that he had any thing the mean conveyance in the title shall not be traversed , where the plaintiff in his title binds the defendant ib. remitter ib. seisin in fee traversed treason . misprision of treason ib. where tryall shall be per pares forfeiture for misprision of treason compasse or imagine ib. what shall be said treason ib. deprive ib. quaere ib. fine for misprision of treason ib. alien commits treason diversity ib. trespas . quare vi & armis of taking in anothers soil ib. tryall . tryal of a peer of the realm arrained upon an indictment and appeal , diversity ib. tryall in court baron , by wager of law. ib. tryall of the law shall bee by the justices , and of a particular custome per patriam ib. tryall of a bishop variance . quare imped . and the writ and the deed vary ib. verdict . verdict at large in a writ of entry ib. villeinage . asserts in their hands ib. diversity ib. where the king shall have the villeine of another in ward , or ideot ib. quaere ib. voucher . see b. tit. voucher ib. usury . diversity , where the day is certain , and where incertain to make usury ib. defeasance ib. usury , and where not waife . waives his proper goods for fellony ib. waste ● waste by a termor , who dyes before action brough● ib. cutting of beech of . ● under . yeers of age shall be waste locus vastat . waste in hedg-rows ib. where the termor may take all the under-wood , & e● contra ib. silva cedua waste for not covering of a new frame and house ib. waste by the heir ib. a man shall be named heir or executor in the premises , and not in the alias dictus ib. conclusion to the writ abridgment . holden by the prothonatories of the common bench in trespass of battery ; that of such matters which lie in conusance of the justices ; they may increase dammages after a verdict upon issue ; otherwise of such matter which lies not in their conusance ; as trees cut . but yet there they may increase costs . . mar. . b. abridgement , . the end . acceptance . note , by fitzjames and englefield , justices : if tenant in dower leases for years , rendring rent , and dies , the lease is void ; and acceptance by the heir of the rent will not make the lease good for t was void before : otherwise of voidable leases . . h. . b. acceptance , . if tenant in taill leases his land for twenty years , rendring rent , and dies , and the lessee leases to another for ten yeares , and the issue accepts the rent of the second lessee , this is no affirmance of the lease : for there is no privity between the second lessee and him ; contrary , if he paies it as bayliff of the first lessee ; and b. seems if the first lessee had leased over all his term in parcel of the land let , and this assignee paies the rent to the issue in tail , that this affirms the entire lease : for rent upon a lease for years , is not apportionable . h. . b. acceptance . . tenant in tail , the remainder over leases for years , rendering rent , and dies without issue , he in the remainder accepts the rent : this shal not binde him because that when the tail is determind , all that is comprised within it is determined , and so the lease void , and he in the remainder claims not by the lessor . . e ▪ . b. acceptance . bishop leases land of his bishoprick for years , rendering rent , and dies ; the successour accepts the rent ; this shall binde him ; for the bishop hath a fee-simple , and may have a writ of entry sine assensu capituli : otherwise in case of a parson or prebend , who can have but a juris utrum . . e. . b. acceptance . . if a man be bound in an obligation to pay ten pound to the obligee at paris beyond sea at a certain day , if the obligor pay at another place , and the same day in england , and the other accepts it , t is good clearly . . h. . b. conditions . . acceptance of rent by the lord from the disseisor of the tenant , shall not bar him of his escheat : otherwise if he had avowed for it in court of record , &c. see tit. escheat . action popular . note , by the statute the party which sues an action popular , ought to sue it within the year after the offence done , and not after : and this as well of offences done against the statute then made , as against statutes after to be made ; so see that it goes to a statute after made . b. action popular . . action upon the case . if i have a mill in b. and another makes another mill there by which i lose my toll by going of divers to it , yet no action lies : otherwise , if the mill disturb the water from coming to my mill ; there i shall have an action upon my case . . h. . b. action upon the case . . the end . in an action upon the case where the plaintiff delivers goods to the defendant , and the defendant for ten shillings promises to keep them safe , and does not , to the dammage , &c. and by fitzherbert and shelly justices , non habuit ex deliberac ' , is a good plea. . h. . b. action upon the case . . note , in an action upon the case betwixt awsten plaintiff , and thomas lewis defendant , for calling him false and perjured ; he justifies , because that the plaintiff was perjured in the star-chamber in such a matter , &c. and a good plea by the court. . h. . b. action upon the case . . more of this in the next . action upon the case for calling the plaintiff false perjured man ; the defendant justifies that such a day and year in the starchamber the plaintiff was perjured , and pleaded certain in what , &c. for which he called him false perjured man , as afore , as t was lawful for him : and a good plea by the court in the common bench. wherefore the plaintiff said of his own wrong , without that he swore in manner and form , &c. . h. . b. action upon the case . . if a man bring debt of . l. the defendant wages his law : and after the plaintiff brings an action upon the case against the same defendant , that he promised to pay the . l. &c. the defendant may plead that for the same summ the plaintiff brought before an action of debt , in which the defendant waged his law , judgement , if action . and a good plea , for he was once barred of the same summ . and in action upon the case , that the defendant promised to pay . l. to the plaintiff , which he ought to him for a horse , and a cow , the defendant may say , that he promised to pay . l. to the plaintiff , which he did ow● to him for a horse , which he bought of him , which summ he hath paid to the plaintiff without that that he promised to pay . l. which he did ow● to the plaintiff for one horse , and one cow , as &c. or without that that he did ow● to the plaintiff . l. for a horse and a cow , as &c. . h. . b. action upon the case . . action upon the case , for that the defendant found the goods of the plaintiff , and delivered them to persons unknown there ; that he did not deliver them in manner and form , is no plea , without saying not guilty where the thing rests in doing . and if the action were , that whereas the plaintiff was possessed , &c. as of his proper goods , and the defendant found them , and converted them to his proper use , t is no plea that the plaintiff was not possessed as of his proper goods , but he shall say not guilty to the misdemeanour , and shall give in evidence that they were not the goods of the plaintiff : and yet t is true , not guilty against him . . h. . b. action upon the case . . in an action upon the case , that the goods of the plaintiff came to the hands of the defendant , and he wasted them , the defendant saies that they came not to his hands , &c. and a good plea , and gives in evidence that they were not the proper goods of the plaintiff . . h. . b. action upon the case . . the end . action upon the case was brought in london by a. b. that whereas he was possessed of certain wine and other stuff ( and shews in certain ) in such a ship , to the value , &c. and doth not shew the place certain where he was thereof possessed , and yet good . and alledged that the defendant such a day , year , and place in london , promised for . l. that if the said ship and goods did not come safe to london , and put upon the land , that then he would satisfie to the plaintiff . l. and that after the ship was robbed upon the trade on the sea , for which he brought the action for not satisfying : and the truth was , that the bargain was made beyond sea , and not in london . but in an action upon the case upon an assumpsit and the like , which is not local , the place is not material ( no more then in debt ) for he alledged that the said goods in the parish of s. dunstons in the east london , before they were set to land , or &c. were carried away by persons unknown , &c. and the action lies well in london , though they were perished upon the high sea . . h. . b. action upon the case . . 't was agreed , that an action upon the case doth not lie against the executors , upon the assumpsit of the testator , though they have assets . . h. . b. action upon the case . . the end . in an action upon the case for a thing which lies in feasans , as for burning of goods or deeds , and the like , not guilty is a good plea : contrary , for non feasons of a thing which he ought to do ; as to make or repair a bridge , house , park , pale , scouring a ditch , and the like , and doth it not , there not guilty is no plea. . e. . b. action upon the case . iii. action upon the case for calling the plaintiff false justice of peace , vel his similia , these words ( his similia ) were ordered to be struck out of the book by the court , for the incertainty . . e. . b. action upon the case . . action upon the case whereas the plaintiff was possessed of such goods , as of his proper goods , and lost them , and the defendant found them , and conver-them to his own use : the defendant said , that the plaintiff pledged them to him for . l. by reason of which he detrains them for the said . l. as t is lawfull for him , without that that he converted them to his own use , as &c. and a good plea by some . by others he must plead not guilty , and give this matter in evidence for the detainer . . e. . b. action upon the case . . t was agreed in the common-bench , ●hat if a man for marriage of his daughter , assumes to pay . l. a year easter , for four years , and fails two ●ars , that the plaintiff may have an a●●ion upon the case upon the promise ●r the non payment of the two years , ●●ough the other two years are not ●et come ; for this is in nature of cove●ant . . m. . b. action upon the case . ● . the end . action upon the statute . in an action upon the statute of . h. . of forcible entry . or in trespas upon . r. , vbi ingressus non datur ●er legem , non ingressus est contra for●am statuti , is a good plea : but his free-hold is no plea , as t is said by sher●ood and others . . h. . b. action upon ●he statute . . in trespass upon . r. . to say that ●he place , &c. is the free-hold of i. n. ●nd hee by his commandment entred , is no plea , : for the action is given by the statute , and therefore ought to have a special answer , and not as in a general writ of trespass . . h. . b. action upon the statute . . see by fitz. justice , that a man may avow upon the land by the new statute and then the tenant shall not disclaim ● contrary , if he avow by the common law , and relinquish the statute . . h. . b. action upon the statute . . 't was said for law , that t is no plea in trespass upon the statute of . r. . for the defendant to say , that the place where is twenty acres which is parcel of the mannour of b. is his free-hold . for the defendant ought to entitle him to a lawfull entry : for a disseisor hath a free-hold , and yet ingressus est , ubi ingressus non datur per legem , in the time of h. . b. action upon the statute . . account . account lies not against disseisors , for then the disseisee shall avoid the discents at his pleasure : and also the defendant was never his receiver for to render account , for this cannot be without privity in law , or in deed ; as by assignment , or as guardian , or the like : or by pretence the defendant to the use of the plaintiff , and where the defendant claims to his own use , there the plea is true ; neither his receiver , nor his baily , to render account : mar. . b. account . adjournment . the justices of assise may adjourn the assises upon every demurrer , and upon every dubious plea or verdict ; and upon every foraign plea , and to what place they will ; and adjournment may be upon certificate of the assises , as well as upon the assise . b. adjournment . administrators . debt is brought against the ordinary , who pending the writ , commits the administration to i. s. the first writ shal abate : for the ordinary is compellable to commit the administration , by statute , . h. . b. administrators . nota , per omnes legis peritos , and by those of the arches , that at the time of vacation of an archbishoprick , or bishoprick , the dean and chapter shall commit the administration , . h. . b. administrators . nota , where the ordinary commits the administration , he may revoke it , and commit it to another ( but mean acts done by the first administrator shall stand ) and so 't was put in ure between brown and shelton , for the goods of rawlins ; the administration was committed to brown , and revoked and committed to shelton : for 't is not an interest , but a power or authority ; and powers and authorities may be revoked ; contra of an interest certain . in the time of h. . b. administrators . the end . charles brandon duke of suffolk , had issue sonn by one venter , and daughter by another venter , and devised goods to the son , and dyes , and after the son dyes intestate , without wife and issue ; and the mother of the son who was of the second venter ( for the daughter was of the first venter ) took the administration by the statute ; which is , that the administration shall be committed to the next of kinn of the intestate . and upon great argument in the spirituall court , tam per legis peritos regni , quam per peritos legis civilis , the administration was revoked . and so see that the administration may be revoked ; and so 't was likewise in the case of brown and shelton before , of the goods of w. rawlin clerk , which was committed , to sir h. brown , who marryed the sister of the said rawlins , and after came w. s. and j. s. son of the wife of the said sir h. ( which wife was the mother of the said shelton by a former husband ) and reversed the first administration , and obtained the administration to them . and the said duke had issue frances by the french queen ; and after this wife dyed , he marryed the daughter of the lord willoughby , and had issue by her one henry , and dyed ; and after henry dyed without issue , and without wife , and the mother of the heir took the administration ; and after the said frances wife of the marquess of dorset sued , and reversed the administration , and obtained the administration to her self , though she were but sister of the half blood to the said henry , because that she is next of kinn to the said henry , for that henry had not any children ; for the mother is not next of kinn to her own son in this respect of this matter ; for it ought to goe by discent , and not by ascension , by the law of england , nor by the law civill . and the children are de sanguine patris & matris , sed frater & mater non sunt de sanguine puerorum . and by isidore , pater & mater & puer sun● una caro ; and therefore no degree is betwixt them ; contrary between brother & sister ; and the half blood is no impediment as to goods ( b. administrators . ) note , that in the argument of this case , 't was agreed by the justices , that the king is not intitled to the land of his ward , without office , though he hath but a chattel in it , yet it comes ratione tenurae , which is the seigniory and freehold in the king , e. . b. office before , &c. . age. a man recovers rent and arrearages by assise , or if he recovers an annuity and arrearages of it in a writ of annuity , the defendant dyes , the plaintiff brings a scire facias against the heir , he shall not have his age of the arrearages , for they are reall , and parcell of the rent or annuity . but if the judgment be of arrearages and dammages , there he shall have his age ( b. age . ) and where he recovers in a writ of annuity , or assise , as before : or hath avowed for a rent , which is freehold , and recovers the arrearages without costs and damages , he shall not have an action of debt of that , but a scire facias , for t is real . but where he hath judgement of it , with costs and dammages which go together , so that that t is mixt with the personality , then lies a writ of debt against the heir , of the arrearages and dammages ( and this b. thinks in default of execution ) per curiam , . h. . b. debt , . & age . note , that of the land of the duchy of lancaster , and other lands which the king hath as duke , or the like , his age is material , and he may have his age as another common person may ; for he hath them as duke , not as king ( b. age . & . ) as if the king alien land , parcel of his dutchy of lancaster within age , there he may avoid it for non-age for the reason aforesaid : otherwise of land which he hath as king , for the king cannot be disabled by non-age , as a common person shall ( b. prerogative . . ) yet by the statute of . e. . ( which is a private act not printed , but inrolled in the dutchy chamber , by which king h. . was attainted of treason , and that all the lands of the said dutchy should be forfeited , and should be a dutchy separated and incorporated , &c. ) t is annexed to the crown : but by another private act , . h. . t is disannexed , and made as in the time of h. . . e. . b. age. . note , t was in a manner granted by all the justices in the common bench , that if a parson , prebend , or the like be within age of years , and makes a lease of his benefice within age , that yet this shall binde him : for where he is admitted by the law of holy church to take it within age , so the common law inables him to demise his benefice within age . . mar. . b. age. . alienations . if the tenant of the king alien in fee without licence , and die , his heir within age , the king shall not have the ward , because that nothing is discended to him , and that the alienation is good , save the trespass to the king , which is but a fine by seiser . b. alienations . gard . but otherwise if the alienor were tenant in tail ; and if the alienation without licence be found by office , the king shall have the issues of the land from the time of the inquisition taken , and not before . ( b. alienations . in medio . ) but where the tenant dies , and his heir enters upon an office found for the king , of the dying seised of the ancestor , there the heir shall answer the profits taken by him before . . h. . b. intrusion . the end . t is said for law , that a fine for alienation is one years value of the land aliened . and the same law of a fine for intrusion upon the king. but the fine to have licence to alien , is but the third part of the yearly value of the land which shall be aliened : and for licence to alien in mortmain , the fine is the value of the land for three years . . h. . b. alienations . . the end if a man obtain licence to alien the mannor of d. and all his lands & tenements in d. he cannot alien by fine : for the fine shall be certain : so many acres of land , so many of meddow , so many of pasture , and the like : and the alienation ought not to vary from the licence . yet by b. t is otherwise used with an averment , that all is one . . h. . b. alienations . . note , if there be two joynt-tenants who hold of the king in capite , and one releases to the other all his right , this is no alienetion ; nor doth he need licence , or pardon of it : for he to whom the release is made , is in by the first feoffor , and not by him that released : nor shall he fine for such release : and so t is used in the chequer , that t is no alienation . but if three joynt tenants are , and the one releases to one of the others , there he is in of it by him that releases : contra , if he had released to all his compagnions : and where a man releases by fine to the tenant of the king , this is no alienation . otherwise of a fine sur conusans de droit com ceo , &c. for this is an estate made by conclusion . . h. . b. alienations . tenant of the king in capite cannot alien for term of life without licence : for it alters the freehold . time h. . b. alienations . the end . note , that for burgage tenure of the king , a man may alien without licence well enough . . e. . b. alienations . note , that a devise by testament was taken to be an alienation . . mar. . b. alienations . alien . see tit. denizen . note , by the whole court in the kings bench an alien may bring an action personal , and shall be answered without being disabled , because he is an alien born : otherwise in an action real ( and the same b. seems in an action mixt . ) and he may have a property , and buy and sell. . h. . b. denizen . nonability . t was said in the kings bench , that to say that the plaintiff is an alien born , judgement ; if he shall be answered , is no plea in an action personal , otherwise in an action real . yet this hath been in question after this time in the same court : and t was said that an alien born is no plea in trespass , if he doth not say further , that the plaintiff is of allegiance of one such a one , enemy to the king : for t is no plea in an action personal against an alien , that he is of the allegiance of such a prince , which is of amity with the king. . e. . b. nonability . if an alien born purchase , the king shall have it : but the purchase ought to be found by office : and so t was in the case of alien king : and b. seems that an information in the chequer , will not serve in this case . time , e. . b. denizen . the end . t was said in parliament , that if an alien born obtain a lease for years , that the king shall have it ; for he cannot have land in this realm , of no estate . . mar. . b. denizen . amendment . by fitzherbert , and the court ; where a writ of error was sued to remove a record out of the common bench , into the kings bench , betwixt an abbot and i. n. the warrant of attorney varied in the roll in the name of the abbot ; and t was amended after judgement : and if they had not amended it , they said , that those of the kings bench would have amended it . . h. . b. amendment . the end . note , that where a warrant of attorney varied from the name of the corporation of the party , and a writ of error was brought to those of the common bench , they amended it presently : and they said that those of the kings bench would have done the like . . h. . b. amendment . note , t was agreed by the kings learned councel , that the king may amend his declaration in another term , in omission , and the like : as where an information misrecites the statute , this may be amended ; for misrecital is the cause of demurrer : for if it be misrecited , then there is no such statute : but he cannot alter the matter , and change it utterly ; yet the same term he may . eliz com. . by weston . . h. . b. amendment . appeal . note , by the justices of both benches , a man shall not have the plea in an appeal ; that the dead assaulted him , and that he killed him in his defence , but shall plead not guilty in manner and form , and shall give this matter in evidence : and the jurie is bound to take notice of it ; and if they finde it , he shall go acquitted in form aforesaid . nor he shall not have this for plea with a traverse of the murther : for the matter of the plea is murther . nor murther cannot be justified ; and when the matter of the plea is worth nothing , there a traverse the like : ( b. appeal , . corone . . ) the end . and where the jury acquits the defendant upon an indictment before the coroners , they ought to finde that he killed the man : and there they may say , that the same defendant killed him se defendendo : but upon an indictment before other justices , it suffices to say , not guilty only , without more . . h. . b. appeal , ▪ the heir of a man killed shall have an appeal , as well of homicide of his ancestor , as of murther . . e. . b. appeal . note , if a woman who hath title of an appeal of the death of her husband , takes another husband ; he and the wife shall not have an appeal ; for the woman ought to have it sole : for the cause of an appeal is , that she wants her husband ; and the reason is , because the wife wanting a husband , is not so well able to live : and therefore when shee hath another husband , the appeal is determined : for the cause ceasing , the effect ceases . ( b. appeal , . ) as where a woman hath a quarentine , and she marries within the . daies , shee loses her quarentine . . mar. . b. appeal , . dower , : appeal of death may be commenced before the coroner , and proces awarded to the exigent : but the plea shall not be determined before him . reading . b. appeal . the end . corone . apportionment . t is said that if i sell my horse , and the horse of w. n. to a. for ten pound , and w. n. retakes his horse , that a. shall render to me the entire ten pound : because a chattel cannot upon a contract be apportioned . . h. . b. apportionment . . if the kings tenant of four acres , alien one to the king : or if he hath two daughters , and dies : and the one aliens to the king , the rent shall be apportioned if it be severable : and this by the common law , by some . quaere , for the reading of fitzjames is otherwise , . h. . b. apportionment . before the statute of quia emptores terrarum , if the lord had purchased parcel of the land holden of him , his entire rent was extinct , though t was severable : yet now by the said statute it shall be apportioned , be it purchased by the lord , or by another : but this doth not help a rent charge : because the statute is onely for the loss of the chief lord. but of a rent service upon recovery of parcel , or of a discent of parcel , and the like , which are the acts of god , or of the law , there was an apportionment at the common law , contrary of his proper act , as purchase : because before the stat. aforesaid , it was of a rent service , as t is at this day of a rent charge , which is extinct by purchase of parcel of the land , reading b. apportionment . . arbitrement . debt upon an obligation : the defendant pleads the condition : if he shall stand to the award of i. and n. so that the award be made before such a day , and saies , that the award was not made by the day : the plaintiff may say , that they made such an award before the day , which the defendant in such a point ( and shew in certain in what ) hath broken : for he must shew the breach in some point certain : otherwise the action lies not : . h. . b. arbitrement . assets inter maines . assets in their hands . see tit. extinguishment . note , if executors plead fully administred in an action of debt , and give in evidence payment of legacies , the plaintiff may demur upon it ; for such administration is not allowable in law , before debts paid . . h. . b. assets inter maines . where a perquisite of a villain shall be assets : see tit. villeinage . assets per discent . assets by discent . in an action of debt against an heir upon an obligation of his ancestor , who pleaded nothing by discent ; and t was found that land discended to him , but not assets ; t was adjudged that the plaintiff should have execution of all his lands , as well of land purchased , as of land discended : and b. seems the reason to be for his false plea. . mar. . b. assets per discent . in the end . assignee . a man leases a house and land for years ; and the lessee covenants that he and his assignes will repair the house ; and after the lessee grants over his term , and the assignee doth not repair , an action of covenant lies against the assignee ; for this is a covenant which runs with the land : ( b. covenant . deputy . ) and also it lies clearly against the lessee after that he hath assigned over his term : and b. seems that if he bring several writs of covenant against both , that there is no remedy till he takes execution against the one : and then it seems to him , that if he sues against the other , he shall have an audita querela . . h. . b. covenant . assise . assise : the tenant pleads not attached by fifteen daies ; the bayliff was examined , who said that he attached him by the horse of a farmor which was a termor to the tenant of the land in plaint , which matter was recorded : and b. seems that t is no good attachment ; for the tenant cannot forfeit the beasts of his farmor : and an attachment ought to be made of such things which the tenant may forfeit by outlary . note , between dudly and leveson , for the mannor of parton , in the county of stafford . . h. . b. assise . note , by the justices in the common bench , that in an assise against two , the one takes the tenancy and pleads no wrong , and the other takes the tenancy without that , that the other hath any thing , and pleads in bar : there the plaintiff shall be compelled to chuse his tenant at his peril , as well as if both had pleaded in bar , and accepted the tenancy severally : and if it be found that he mis-elects his tenant , the writ shall abate , but he shall not be barred . and there when the demandant elects his tenant , and he pleads , there they shall be at issue , before that the tenancy shall be inquired , and then the tenancy shall be inquired first , and after the other issue . . e. . b. assise . assurances . note , that tenant in tail who levies a fine with proclamation , shall be bound , and his heirs of his body also after the proclamation made , and not before : so that if the tenant in tail die before all the proclamations made , this shall not binde the issue in tail ; and the proclamation cannot be made in shorter time then in four terms ( b. fine levies . assurances . ) but tenant in tail who is not party to the fine , shal not be so bound after the proclamations , but that he shall have five years to make his claim : and if he fails of them , and dies , his issue shall have other five years by the equity of the statute of w. . quod non habeat potestatem alienandi . yet t is said , if the first issue neglect the five years , by which he is barrable , and dies , his issue shall not have other five years ; for if the issue be once ba●rable by the fine , the tail is by this bound for ever : ( quaere ) and the statute saies , that it shall binde parties and p●i●●es : and therefore where tenant in tail is party to the fine , with proclamation , and his issue claims performam doni , the issue is privy : for he cannot convey to himself as heir in tail , but as of the body of his father , which is privity . but a fine with proclamation , may be confessed and avoided ; and then it shall not binde : for the statute is intended de finibus ritè levatis . and therefore he may say , that the parties to the fine had nothing tempore finis , &c. for if none of the parties had nothing tempore finis , then t is a fine by conclusion betwixt the parties : but all strangers may avoid it by the averment as afore . ( b. fines , levies , . ) and by the statute of . h. . fine with proclamation by cestui que use in tail , shall binde him and his heirs after proclamation made : and a fine with proclamation , the reversion or remainder in the king , and the conusor dies , the proclamation made t is no bar , nor discontinuance ; because that the reversion or remainder in the king , cannot be discontinued : therefore there the issue in tail may enter after the death of the tenant in tail. ( b. bar . assurances . ) and b. seems , that neither the statute of . h. . nor . h. . shall not binde the issue in tail , nor the reversion to the king by fine with proclamation , though that the proclamation be made : and yet the statute of . h. . wils that after proclamation made , it shall be a final end , and shall conclude as well privies , as strangers , except infants , fem coverts , and the like , &c : and the issue in tail is privy . yet b. thinks that the intent of the statute was not that the issue in tail , the reversion to the king should be bound : for by him after this statute , this was taken to be no discontinuance : and therefore it seems to him that it shall not binde the issue in tail , the reversion in the king. ( b. fines , levies . ) yet quaere , for the statute of . h. . which wils that the heir in tail shall be barred by fine ▪ with proclamation , after the proclamation made , hath an exception of those , of which the reversion , or remainder , is in the king , so that it shall not binde such issue in tail. b. assurances . the end . but otherwise t is of a recovery , and execution had by writ of entry in the post , with voucher by the common law , : for though that the reversion , or remainder be in the king , such recovery shall binde , and was a bar against the tenant in tail , and his issue presently ; but not against the king. but at this day by the statute of . & . h. . recovery against tenant in tail ; the remainder , or reversion in the king shall not binde the issue in tail , but that he may enter after the death of tenant in tail. . h. . b. bar . the end . assurances . note , that for assurance of land , that the heir should not sell , t was devised , that a man should make a feoffment in fee to two , to the use of himself for term of life without impeachment of wast , and after to the use of his son , and his heirs , until the son should assent and conclude to alien it , or any part of it ; or to charge or incumber it , and after imediately upon such consent and conclusion to the use of a. and his heirs , until as afore , and then &c. to the use of b. and his heirs , until , &c and so of more , &c. and by such assent and conclusion by the statute of uses . anno , . h. . c. . the other shall be in possession , &c. . h. . b. assurances . where men enter into an arbitrement , and every one is bound to the other in an obligation , or other such covenants , and are bound to perform it : and t is awarded that every one should release to the other all actions , & the like : there it ought to be expressed all actions before such a day , which shall be before the date of the obligation for otherwise the obligation of the award , or the last obligations to perform the covenants , shall be also released . regulae b. assurances . attaint . caveatur in every action triable by jury , of the quantity of the land , as where a man demands . acres , where they are but a hundred sixty or the like : and the title is for the demand , there if the jury finde that he deseised him of acres , or the like , this is matter of attaint . and so where they finde him gulty in trespass or the like , of more trespasses then he did , or of excessive dammage , and the like . . h. . b. attaint . quaere by b. if an attaint doth not lie upon a verdict in an appeal of maihem at this day , by the statute of . h. . cap. . for this year t was doubted . . h. . b. attaint . the end . assise is brought against tenant by statute merchant , and against the conusor tenant of the free-hold , and the assise acquits the tenant by statute merchant , and attaints the other of disseisen : the tenant by statute merchant shall not have an attaint , nor the lord where land is recovered against him , and the heir , where he hath the heir in ward ; nor the termor , where land is recovered against him , and the lessor , because they lose not any free-hold : and because that they are acquitted by w. whorewood the kings attorney . yet by b. t is not reasonable where they are named , and lose their interest : yet it seems to him , that he that is acquitted shall not have an attaint ; but if they are found disseisors , they shall have an attaint by him . time , h. . b attaint . the end . note ; for law , where trespass of battery , goods carried away , or a writing broken ( which are transitory ) is done in one county , yet an action may be brought in an other . ( b. attaint . and so t was agreed in trespass in london , of breaking of at d. in london , where indeed d. was in the county of e. for these are not local . b. lieu. . ) and therefore in trespass transitory , the place is not issuable , nor traversable . no more then in trespass upon the case , upon a promise ; and these may be continued . ( b. traverse , &c. . ) and in those cases , the jury of another county may take conusance thereof , but is not bound to it : but if they take conusance , attaint lies ▪ not . otherwise of trespass of trees cut , or grass trod , which are local , and shall be brought in the proper county . . mar. . b. attaint . jurors . note ; t is said that upon an information for the king , which passes upon the issue tried , the king nor the informer shall not have an attaint : for the informer is not fully party . and when the defendant hath answered , the kings attorney replies for the king ; and after , no further mention of the informer : and therefore neither the one , nor the other shall have an attaint . . mar. . b. attaint . . where an attaint lies , where not . see tit. dammages . and tit. fanxifier . attornment . note ; that attornment may be made by tenants , to the lord in his court : to the steward in absence of the lord , or purchasor . but attornment to the servant of the purchasor out of court , and in absence of the purchasor , is not good : but by payment of one penny for every tenant to the servant of the purchasor ; and in his absence , in name of seisen of their several rents , is a good attornment : for a servant may receive rent for his master . quaere . if no rent then is due , nor the rent day come . . h. . b. attornment . t was agreed , that where land is fold by deed , indented and inrolled according to the statute of . h. . c. . there because the use is changed by the bargain and sale , by the said statute , and the buyer in possession ; and hath no means to compel the tenant to attorn ; there he may distrain , and avow without attornment . otherwise upon a grant by fine ; for there he may have a writ of por quae servitia . . h. . b. attornment . the end . note , that if a man hath common of pasture to a certain number ; or common of estovers to a certain number of carts and with grant them over ; they pass without attornment ; because they are not to be taken by the hands of the tenant , but by the mouth of beasts , and by cutting , and carrying . so see that when no attendancy nor payment is to be made by the tenant , there the thing passes without attornment . . h. . b. attornment . . see by whorewood the kings attorney ; where a man leases for forty years , and after leases the same land to another , to have from the end of the first term for twenty years , this needs no attornment : otherwise where he grants the reversion as afore , there ought to be attornment . ( quaere , and see after . ) and if a man leases for ten years , and after leases to another for twenty years , this is good for ten years without attornment : otherwise if there were a word of reversion . . h. . b. attornment . . a man leases land for twenty years , the lessee leases over for ten years , rendring rent , and after grants the reversion of the term , and rent to a stranger , this shall not pass without attornment , by reason of the attendancie of the rent : otherwise , if no rent were reserved upon the second lease for ten years , for then there is no attendancie to be made , nor action of waste , nor the like to be brought . for as b. seems , attornment is not necessary ; but to have avowry , or an action of waste . . e. . b. attornment . . see by mountague , chief justice , and townsend , that by a feoffment of a mannor , the services pass without attornment of the free-holders . but b. seems that the tenants ought to attorn . . e. . b. attornment . note ; if a man let a house , and acres of land for term of life : and after grant the reversion to another , to have the said house , land , and tenements , a festo sancti micha●lis prox-post mortem vel determinationem interesse of tenant for life for twenty one years then next following : the tenant for life dies before attornment , yet the grant of the reversion is good , because that the words in the habendum of the house and land , is intended to be a lease ; and a rent was also reserved upon it , and so a good lease without attornment . by brown , sanders , and stamphord , justices . yet by b. chief justice , t is but a grant of a reversion , and no lease : but yet the grant is good without attornment ; because that t is to commence after the death of tenant for life , so that the tenant for life shall not be attending to the grantee , nor shall he avow upon him , nor have an action of waste , or the like : by judgment of the court. . mar. . b. attornment . leases . attorney . in these cases a man shall not make an attorney , except in special case . viz. attaint , premuniri , appeal , per quae servitia . quid juris clam . quem redd . reddit . nor in assigning of errors : nor at the plures in case of contempt : nor the tenant in a cessavit upon tender of arrearages . nor the pray' to be received in a pr. quod redd . nor in an assise ; nor in an attachment . nec contra finem levat : nor in any case where the defendant shall be imprisoned . audita querela . a man seised of . acres , is bound in a statute marchant ; and makes a feoffment of . to several persons , and execution is sued against one of them , he shall have an audita querela upon his surmise , to have the other feoffees to be contributory with him . but if execution be sued against the conusor himself , he shall not have such contribution : for this is upon his own act ( b. audita querela . yet if the conusor dies , and the conusee sues execution against the heir , he shall have contribution of the feoffee . so every of them shall have of the heir . . h. . b. audita querela . the end . averments . see tit. pleadings . note , where a man pleads a recovery by a strange name of the thing demanded ( b. averments . ) as if a precipe quod redd . be brought of the mannor of b. or the like , the tenant pleads a fine , recovery , or the like , of the mannor of g. he ought to aver that the one and the other , are one and the same mannor , not divers : contrary , if he pleads a fine , or recovery de predict . manerio de b. for this word ( predict . ) is in effect an averment that all is one . ( b. pleadings ▪ . ) and where a man pleads a recovery by a strange name of the parties , he ought to aver that the first person , and this person , are all one , and not divers . otherwise b. seems where he pleads it by this word predict . . h. . b. averments . t was said for law , that an averment is not necessary in an avowry . viz. & hoc parat . est verificare ; for t is in lieu of a declaration ; and the avowant is actor . m. . b. averment . avowry . lord and tenant by fealty & pence rent , the lord dies , his wife is endowed of the seigniory ; she may distrain for peny , & the heir for pence , & so now the land is charged with two distresses , where it was charged but with one before : but this is not inconvenient : for he shall pay no more rent then before . the same law where the lordship is divided by partition , between heirs females , and the like . . h. . b. distresse . avowry . if two copartners make partition , and give notice to the lord , he ought to make several avowries . and if a man sell his land by deed indented , inrolled within the half year according to the statute , the avowry is not changed , &c. without notice , no more then upon a fine . yet b. doubts of of a conusans de droit com . ceo. &c. but if a man recover against the tenant , or if the tenant is deseised , the disseisor dies seised , and his heir is in by discent , so that the entry of the disseisee is taken away , the avowry shall be changed without notice . the same law , if the tenant make a feoffment , and dies , the lord shall change his avowry without notice ; for nothing is discended to the heir of the feoffor . and where notice ●s necessary , it shall be done upon the land holden , with tender of the arrearages ; for otherwise the lord shall lose his arrearages , if he avows or accepts service of the feoffee , &c. before the arrearages paid , ideo caveatur inde . . h. . b. avowry . . in a replevin , if the defendant avows because that a. was lord , and was seised by the hands of b. then tenant , &c. of such servises , he may convey the estate of the said b. in the tenancy to the plaintiff in the replevin , by a que estate , without shewing how , but he cannot convey to himself of the said a. in the seigniory by a que estate , without shewing how ; for the seigniory is there in demand , and not the tenancy : : h. . b. avowry . que estate . the end . note , that he which avows upon the land , as within his fee or seigniory , by the statute shall aleadge a seisen , as in other avowry ; and then shall conclude his avowry upon the land , as within his fee and seigniory : and in such avowry , every plaintiff in the replevin ( be he termor or other ) may have every answer to the avowry ; as to traverse the seisen , the tenure , and the like , which are a good answer in an avowry : or plead a release , or the like , as tenant of the free hold shall , though he be a stranger to the avowry ; for such avowry is not made upon any person certain ; therefore every one is a stranger to this avowry : and so the plaintiff may have every answer which is sufficient . h. . b. avowry . 't was agreed that to say , that the place where , &c. is . acres , which is , and was the time of the caption his freehold , for which he distrained , and took the beasts for dammage feasent , was a good avowrie . . e. . b. avowrie . 't was holden by the justices of both benches , that where a man holds by rent and knights service , and the lord and his ancestors have been alwaies seised of the rent , but not of the homage , escuage , nor of ward , yet if a ward falls , he shall have the wardship of the heir , for the seisen of the rent suffices to be seised of the tenure , as to this purpose . yet otherwise b. seems to make avowry . . e. . b. avowrie . . the end . ward , . note , that 't was agreed that at this day by the limitation of . h. . the avowry shall be made generally , as was used before : and if there were not seisin after this limitation , then the plaintiff in bar of the avowry may alleage it , and traverse the seisin after the limitation ( b. avowry . ) also where a man brings an action real , or mixt ; or makes avowry , or conusance , and issue is taken upon the seisin infra tempus statuti , and t is found against the demandant , plaintiff , or avowant ; this is peremptory by the same statute . . m. . b. peremptory . averment is not necessary in an avowry . see tit. averment . barre . where a fine with proclamation , or a recovery shall bar an estate tail ; where not , and where the reversion is in the king , with other good matter concerning fines . see tit. assurances . bastardie . note , that t was taken by the commons house of parliament , if a man marry his cosin within the degrees of marriage , who have issue , and are divorced in their lives , by this the espousals are avoided , and the issue is a bastard . otherwise , if the one die before divorce , there divorce had after shal not make the issue a bastard ; for the espousals are determined by death before , and not by the divorce . and a dead person cannot bring in his proofs ; for divorce after the death of the parties , is but ex officio , to inquire de peccatis , for a dead person cannot be cited nor summoned to it . h. . b. bastardie . . d'arraignement . battel . t is said that if an appeal of murther be brought in the kings bench , the defendant joyns battel , it shall be before the justices of the kings bench , and not before the constable , and marshal . . m. . b. battail . the end . bill . 't was said , that a premunire shall be maintainable by bil in the kings bench , though that the party be not in custodia marescalli . ( b. bill . . ) and 't was common that many clerks were compelled to answer to bills there , who were not in custodia marescalli . . h. . b. premunire . cerciorari . t was agreed in chancery , that there is no certiorari in the register to remove a record out of a court into the common bench immediatly , but it shall be certified in the chancery by surmise , then to be sent into the common bench by mittimus . and indictments may be removed out of the countrey by cerciorari to the chancery , and may be sent to the justices of the kings bench by mittimus , and then they shall proceed upon it . . h. . b. certiorari . the end . certificate of the bishop . 't was holden that if the bishop certifies that such a person paid not his tenths , according to the form of the statute , which wills , that ipso facto , the benefice shall be void ; that in this case a man shall not have an averment contrary to the certificate . time h. . b. certificate devesque . the end . challenge . note by the exchequer , and both benches , where the parties are at issue in a plea of land , where the land lies in three or four hundreds , there if the juror hath land in any of the hundreds , or dwells in any of the hundreds , it suffices . . m. . b. challenge . in treason t is a good challenge to witnesses , to say that he was one of his accusers ( b. corone . ) and note , that by the statute of . h. . a peremptory challenge is ousted in case of high treason : yet by the said statute queen mary , t is enacted , that all tryals of treason shall be according to the order of the common law , and not otherwise . and therefore it seems that he may have a challenge peremptory , as at common law. s. . jurors . . m. . b. challenge . trials . the end . where a grant of the bishop , or charge by him , with the assent of the dean and chapter , shall binde the successor , and where not ? see tit. confirmation . charters of pardon . note , if a man be attained of murther , or felony by outlawry or otherwise , and the king pardons him all felonies , murthers , and executions eorundem , and outlawries , and waivings ; and sectam pacis . and a pardon and release of all forfeitures of lands and tenements ; and of goods and chattels , shall serve but for the life ; and for the land , if no office be thereof found . but it shall not serve for the goods without restitution or gift . for the king is intitled to them by the outlawry , without office : but the king is not intituled to the land , till office found . and if an office be found after , yet the pardon shall serve ; for it shall have relation to the judgement ▪ & then the mean pardon serves well ; contrary , where an office is found before the pardon granted ; for then the king is seised by the office , and there a release or pardon cannot give it ; but there ought to be a gift or grant. . h. . b. charters of pardon . note , if alienation without licence be pardoned by act of parliament , the party may enter without ouster l'main ; or amoveas manum . otherwise by another pardon , by letters pattents . . h. . b. charters of pardon . if intrusion by the heir , post mortem antecessoris be found by office , and after the king pardons it by act of parliament , or by letters pattents , yet the heir shall sue livery : for this is not restored to him by a pardon : but if the pardon were granted before office found , and at the making of the pardon , the heir is of full age , he shall retain the land , and the office found after the pardon shall not hurt him . . h. . b. charters of pardon . chattels . if lessee for years devise his term , or other his chattel or goods , by testament , to one for term of his life , the remainder over to another , and dies , and the devisee enters , and aliens not the term ▪ nor gives , or sels the chattel , and dies , there he in remainder shall have it : but if the first devisee had aliened , given , or sold it , there he in the remainder had been without remedie for it ( b. chattels . done . ) and so b. seems if they be forfeit in his life , he in remainder hath no remedy . . h. . b done. . the end . choice in action . thing in action . note , where the statute of . h. . gives to the king the possessions of abbies , and all rights of entries , actions , conditions , and the like , which the abbies might have had ; and that he shall be in possession without office , and that he shall be adjudged in actual and real possession of them , in such plight and sort as they were at the time of making of the statute . yet if an abbot were disseised of acres of land , the king cannot grant it over before entry made by him in it , because t is a thing in action real , and not like to a thing in action personal or mixt , as debt ward , and the like , by some . and some è contra , by reason of these words , that the king shall be in possession . yet by b. this seems , that he shall be in such possession as the abbot was . s. of a thing of which the abbot had possession , the king hath of this actual possession : & of such of which the abbot had but a cause of entry , or right in action ; of these the king shall be vested of a title of entry , and title of action . but the thing to which he hath such cause of entry , or of action , is not for this in him in possession : and therefore cannot pass from the king by general words ; but b. seems , if the king recites the diseisen , and how the right and action thereof is given to him by the statute , and grants it specially that t is good . . h. . b. choice in action . 't was said for law , that the king may grant a thing in action , which is personal ; as debt , and dammages , and the like , or a thing mixt ; as the ward of body : but not a thing real , as an action of land , and the like , as rights , entries , actions , and the like , which abbots might have . ( and that the king shall have these by the statute of dissolution of abbies . . h. . ) these things in action the king cannot grant . yet by b. see if there be not words in this statute , to put the king in possession , though the abbot were put to his action . . h. . b. pattents . clergy . no man shall have his clergy but where his life is in jeopardie : and therefore not in petty larceny . and the bishop is ordinary : all priests , abbots , and others inferior to him , which demand clergy , or have clergy : and if the bishop hath his clergy , the metropolitan shall keep him , as his ordinary : and if the metropolitan offend , and hath his clergy , the king shall have him and keep him : the same is of laps . reading b. clergy . corone . note , that at this day bigamus shall have his clergy by the statute : but a man attainted of heresie shall not : otherwise of a man excommunicated : and a jew , nor turk shall not have their clergy : and a greek and roman , who use not our letters shall have their clergy , and shall stay till a book of letters of their countrey comes . ( b. clergie . ) and if a man who is captus oculis prayes his clergy , he shall have it if he can speak latine congruously . quaere , for he cannot be a priest , nor he cannot minister . casus b. clergie . a bastard shall have his clergy ; for he may be a priest by licence . casus b. clergie . colour . note , that colour ought to be matter in law , or doubtful to the lay people ; and shall be given to the plaintiff , and not to one who is mean in the conveyance : and shall not be given to a stranger who infeoffed the plaintiff : nor shall be given to the defendant : and shall not be given by a possession determined . s. where it appears in the pleading , that the possession is determined : but shall be given by an estate defeated : and where the defendant bindes the right of the plaintiff by feoffment with warranty , release , fine , recovery , disseisin , and re-entry , and the like , there needs not any colour . and he which claims no property in the thing , but takes it as a distress , and the like , shall not give colour . colour shall not be given but upon a plea in bar . b. colour . colour shall not be given but by him , by whom you commence your title , and not by a mean in the conveyance . he which pleads to the writ , shall not give colour . it behoves that colour be such , so that if it be true , that of such possession , the plaintiff or demandant may have their action . he which justifies as servant , and conveys title to his master , shall give colour : colour by possession in law , is good . regulae . commission . note , for law , that where a commission of the peace issues to i. n. and others ; and after i. n. is made knight . yet the commission remains for him . ( yet anno primo , e. . cap. . is a statute made , that making of the plaintiff knight , shall not abate the action , nor the commission in which such person is named . ) and where a man learned in the same law is put in commission , and after is made serjeant at law , yet he remains in authority by the same commission . and when a justice of the bench is made knight , yet he remains justice , and this commission shall serve him . . h. . b. commissions : note , by coming of a commission of oyer and terminer , the commission of gaole delivery is not determined ; for the one stands with the other . otherwise , where the one commission is contrary to the other . as of a commission of the peace where there is a former commission thereof to others , this is contrary that every of them should be commissioners of one and the same thing , and both in force . and the commission of gaole delivery , is onely to deliver the gaole . commission of oyer and terminer , hath words ad inquirendam audiendam , & determinandam . but most commonly the justices of gaol delivery are also in the commission of the peace , and by this they indict , and after deliver the gaol as well of them , as of others . and note , that the justices of oyer and terminer , cannot by this authority arraign no prisoners , but those which are indicted before them : but contrary , if they have commission of gaol delivery also , for these both may be executed simul & semel . m. . b. commission . if a justice of the common bench be made justice of the kings bench , though that it be intended but pro illa vice : as t was of sir james dier this year ; yet this shall determine his pattent of the common bench , though he surrenders the pattent of the kings bench the next day : for the kings bench is the highest court : and if the common bench erre , this shall be controlled by the kings bench. and therefore a man cannot be judge of the one bench , and the other together to reverse his own judgement . and as often as a justice of the common bench , is made justice of the kings bench ( as it hath been often seen ) the commission of the common bench by this is determined : for the one court is within the controlment of the other : but a man may be a justice of the common bench , & chief baron of the exchequer together , & may be justice of the common bench , & justice in oyer , and terminer , or of gaol delivery together : for none of these courts hath controlment of the other . and if an incumbent of a benefice be made a bishop , the first benefice is void : for he which hath the office of soveraignty , cannot have the office of inferiour , by some of the justices . yet b. doubts ; for a justice de banco regis , may be a justice in oyer , or of oyer and terminer , or of peace , or of gaol delivery ; and yet if they err in their pleas in the oyer , or oyer and terminer , or in their proces , or outlawry before justice of peace , writ of error lies thereof before the king in his bench. but the pleas in the king bench are holden coram rege ubicunque fuerit in anglia , and so the kings bench , is a court removable : and by the statute the common pleas teneatur in loco certo , then t is contrary of the oath of the justice of the one court , and the other ; for the one is certain , and the other incertain . . m. . b. commissions . where a justice of peace is made knight , or takes other dignity , yet his authority shall remain . and so of a justice of the gommon bench made knight , his commission remains in force . . e. . c. . b. commission . if the king grant to a major and commonalty , and their successors to be justices of peace in their town , and after makes a commission of the peace to another there , yet the first commission shall remain in force ; because that t is a grant to them , and their successors , and so not revocable as a commission is . ( b. commission . ) if a new commission of the peace be proclaimed , or read in full county , the ancient commission of the peace is determined . and all the justices ought to take notice , and if they sit by the ancient commission , all they do is void . and if a commission be directed to a. and b. who are not in rerum natura , or are dead at the time of the teste , &c. the ancient commission remains in force , for this new commission is void . if a commission be directed to n. pro hac vice , this shall determine the ancient commission of these matters . and yet the new commissioners cannot sit but vnica vice . ( b. commission . ) if a commission be directed to hear and determine felonies , this shall determine the ancient commission of the peace , as to felonies , but not as to the peace : and so determined in part , in part not , ( b. commission . ) commission in eyer is made to the county of n. and proclamation there , this determins the commission of the peace . ( b. commission . ) commission of the peace is in the county of n. and the kings bench comes there , this shall not determine the commission of the peace : contrary , if they make proclamation of the coming of the kings bench ( b. commission . ) commission of the peace is made to . in the county of n. and after the king makes i. s. justice of peace there for term of his life ; the first commission is determined . ( b. commission . ) if justices sit by commission , and do not adjourn it , the commission is determined . and see a statute where new commissioners of gaol delivery , may sit upon the records of the ancient commission of the gaol , which is determined . and when a commission of oyer and terminer is determined , the records of that shall be sent into the kings bench ; but records of the justices of gaol delivery , shall remain with the custos rotulorum of the county . and the next justices of gaol delivery shall proceed upon them , upon judgement of death by the said statute . quaere , if they should proceed by the words to allowance of clergie , or sanctuary , it seems so , by the equity . b. commissions . conditions . debt upon an obligation , with a condition to perform all covenants contained in certain indentures ; the defendant cannot plead the condition , and reherse the covenants , and say generally that he hath performed all the covenants , without shewing how , by the prothonotaries , . h. . b. conditions . if a man devise . l. to w. s. to be paid in four years after his death , and dies , and after the devisee dies within the four years , yet the executor of the devisee shall have the money , or the rest of it by suit before the ordinary in the court spiritual ; for t is a duty by the testament , or devise . . h. . b. devise . . conditions . by fitz. if a man before the statute of tenures had made a gift of land to one in fee , for to repair a bridge , or for to keep such a castle , or for to marry yearly a poor virgine of s. this is a tenure , and not a condition ; and the donor may distrain , and make avowrie . but if a woman give land to a man for to marry her , this is a condition in effect , and no tenure , which no bodie denied . . h. . b. condition . tenures . if a man mortgage his land to w. n. upon condition that if the mortgager , and i. s. repay l. by such a day , that he shall re-enter , and he dies before the day , but i. s. paies by the day , the condition is performed ; and this by reason of the death of the mortgager , notwithstanding that the payment were in the copulative ; otherwise , if it were not in the case of death , . h. . b. conditions . by many , if a man make a feoffment in fee , ad intentionem to perform his will , this is no condition , but a declaration of the purpose and will of the feoffer , and the heir cannot enter for non performance . . h. . b. conditions . if a man be bound in a bond to pay l. the obligor in whose discharge the condition goes , ought to be ready at the place , &c. all the day , and the obligee may come any time of the day , . h. . b. conditions . a man gives land in tail , or leases it for life , or for years , rendring rent , with a condition of re-entry for default of payment , there if he leases part of the land to the donor , or lessor , or if the donor or lessor enter in part of the land , he cannot re-enter for the rent arrear after ; for the condition is wholly suspended ; for a condition cannot be apportioned nor divided . . h. . b. extinguishment . conditions . debt upon an obligation , to perform all covenants contained in certain indentures , t is no plea that he hath performed all the covenants generally , s. quod performavit omnes & singulas conventiones inindentura pred . specificat . ex parte sua perimplend . if they be in the affirmative ; but must shew in certain in every point how he hath performed them , ( b. condition . covenant . ) and where in a covenant the defendant saies , that the covenants are that he shall pay l. by such a day , and infeoff him by the same day quas quidem conventiones idem defensoris bene perimplevit , this is no good plea ; for he must shew in certain how he hath performed it . . h. . b. covenants . the end . note for law , that proviso semper put on the part of the lesse upon the words of habendum , makes a condition ; otherwise of a proviso of the part of the lessor , as t is covenanted in the indenture , that the lessee shall make the reparations ; proviso semper , that the lessor shall finde the great timber , this is no condition . nor by some tis no condition when it comes amongst other covenants on the part of the lessee , as t is covenanted after the habendum , and after the reddendum , that the lessee shall scowre the ditches , or the like : proviso semper , that the lessee shall carry the dung from it to such a field ; this is no condition to forfeit the lease for not doing of it : contrary , if such proviso be put imediately after the habendum , which makes the estate ; or after the redendum . quaere , by b. conditions . . h. . if a man mortgage his land upon defeisance of repayment to re enter , and the bargain to be void : and the vendee leases the land to the vendor for ten years by indenture of defeisance ; and further grants to him , that if he paies l. infra terminum dict . annorum , that then the sale shall be void , &c. and the lessee surrenders the term , yet the tender of the l. is good within the ten years ; because that the ten years is certain , though the lease is surrendred or forfeited . otherwise , if it were to repay infra terminum predict . without these words , ten years ; for in the one case the term , s. the lease is the limitation of payment , and in the other case the ten years , by whorewood in his reading in the lent. ( b. conditions . defeasans . ) the same law if b. holds certain land for term of ten years of a. and t is covenanted betwixt a. and b. that if b. pay l. to a. within the said ten years , that then he shall be seised to the use of b. in fee , and b. surrenders his term to a. and after payes him l. within the ten years , there b. shall have fee ; for the years are certain : otherwise , where t is covenanted , that if he payes l. infra terminum predict . and he surrenders , and after payes the l. this is nothing worth ; for the term is determined : but in the other case the ten years remain , notwithstanding the surrender . . h. . b. exposition , . t was holden clear in the kings bench that where m. and other two are bound to stand to the award of i. n. so that it be made and delivered by the arbitrators in writing to the parties before michaelmas , they make the award , and deliver it to one by michaelmas , and cannot finde the other by the day , this shall not binde the others to whom t was not delivered . and the reason b. seems ; because that in this case they might have made parties , and have delivered to every party one . . h. . b. conditions . the end . t is said by the court in the kings bench : in debt upon an obligation to keep without dammage , s. harmless , where the defend . pleads that he hath saved him harmless , t is no plea without shewing how ; for he which pleads a discharge , or saving harmless , ought to plead it certain when he pleads in the affirmative . otherwise , where he pleads in the negative ; for if the plaintiff be not dempnified , he may plead quod non damnificatus est generally . h. . b. conditions . . in finibus . if a man be bound in an obligation to pay l. to the obligee at paris beyond sea , at a certain day , if the obligor pay at another place , and the same day in england , and the other accepts it , t is good clearly . ( b. conditions . ) and t is said in debt upon an obligation to acquit & save without damage , quod non damnificatus est , is a good plea , for t is in the negative , and therefore good without shewing how , but where he pleads , that he hath kept him without dammage in the affirmative , he shall shew how . . h. . b. conditions . . the end . if a man let land for term of life upon condition , that if he doth not go to rome by such a day , that his estate shall be void , and the lessor grants the reversion over , the tenant attorns , and after he doth not go , yet t is not void till entire , by bromley chief justice : . m. . b. conditions . . the end . confess , and avoid . replevin , the defendant said that b. was seised in fee and leased to e. for years , which e. granted his interest to the defendant . . h. . by which he was possessed , and distrained for damage feasant , the plaintiff said that the same e. . h. . granted his interest to him , he shall not traverse the grant. . for hee hath confessed and avoided it , by the eldest grant obtained . . e. . b. confess and avoid : . confirmation . bishop charges , or grants an office with the assent of the deane and chapter , and dyes , this is worth nothing , by some , for it ought to be confirmed by the dean and chapter ; and this fell out in the grant of the stewardship of the bishop of london , betwixt aldred fitzjames , and john edmunds of the middle temple , where the bishop granted the stewardship of his lands to a. f. by the assent of the dean and chapter , and died , by which the grantee lost the office , as t is said , because the dean and chapter had not confirmed it , yet more was in the grant of the bishop , as misnosmer , and the like , for the said a. f. was named etheldredus , where it should be aldredus , and so he was misnamed . also there was a default in the seale ( b. charge . confirmation . ) and also the deed was quod sigillum nostrum apposuimus , which may bee referred to the bishop onely , and not to the bishop , dean and chapter : and therefore by more , to this day the grant was avoided for these causes , and not for the other cause ; and so a grant with assent of the dean and chapter , with all perfections is good . . h. . b. confirmation . . the end . if the bishop be patron , and the parson makes a lease or grant by deed , there the bishop patron , and the ordinary , and the dean and chapter ought to confirm , if the grant or lease shall be sure ; otherwise where a lay man is patron in fee , and he and the ordinary confirmes , this suffices without the dean and chapter , for in the first case , the bishop patron hath an interest in inheritance to the bishoprick . but in the other case , he hath but a judicial power , therefore it suffices that he who hath the power at the time , &c. confirmes , for t is a judicial act . but in the other case , it bindes the inheritance , which he hath in jure ecclesiae which he cannot do against his successor , without confirmation by the dean and chapter . ( . h. . b. confirmation . : charge . . leases . . ) patet hic that the patron ought to have a fee simple , and this juri proprio , because of the dean and chapter , to be joyned with the bishop , where he is patron . b. charge . note , that if the king for him and his heires grants catalla felonum & fugitivorum , or the like , which lie in grant , and dies , the grantee needs no confirmation of the new king. but if it be a fair , or market , or the like , and t is abused or misused , as it may be , or if it be a judicial , or ministerial office or power , as to be a justice of peace , escheator , or the like , there he ought to have a confirmation of the new king ( b. confirmation . . & . ) yet b. seems that the grant of a thing which lies in grant , is good clearly , without these words , for him and his heires ; but of warranty , covenant , annuity , or the like , there he ought to make it for him and his heirs . . h. . b. confirmation . . conscience . if a man buyès land , and the vendor executes an estate to the vendee , habendum sibi imperpetuum , without words of heires , where the intent of the bargain is to pass a fee simple , and the vender upon request refuses to make other assurance , there lies a writ of subpaena . . h. . b. conscience . audely , chancellor of england held clearly that if a man sell his land before the statute of uses , this shall change the use of the fee simple . and the same law of a sale by indenture , by the statute of . h. . without words heires . time h. . b. conscience . . the end . continuances . note , that in the common recoveries by sufferance , for assurances , the tenant tenders issue , the demandant may imparle to a day in the same terme , and then the tenant is demandant , and retracts , and judgement is given for the demand : against him , and after the tenant over in value upon the vouchee , &c. regulae . . h. . b. continuances . contract . a man sells a lease of land , and certain cloath for l. the contract is intire , and if the one of these were by defeasible title , yet the vendor shall have the intire summe , though the one part were devested from the vendee , for contract cannot be severed . . h. . b. contract . if a man be indebted to me upon contract , and after makes to me an obligation for the same debt , the contract by this is determined , for in debt upon the contract , t is a good plea , that he hath an obligation for the same debt . so if the obligation be made for parcell of the contract , which is intire . . h. . . but if a stranger makes an obligation to me , for the same debt , yet the contract remains , because that t is by another person , and both are now debtors ▪ . h. . b. contract . corone , crown . note , if a felon hath a pardon to plead , and pleads not guilty , he shall lose the advantage of his pardon , and shall not plead it after . . h. . b. corone . . note , that at the sessions at newgate , a man was judged to be hanged , and delivered to the sheriff to make execution , and after escapes , and flees to the church : and had the priviledg of it . . h. . b. corone . . the end . note , t was holden by all in the house of parliament , that if a man kill one who is attainted by premunire , this is no felony , for he is out of the protection of the king , which is , as if he were out of the kingdom , and power of the king. otherwise of him who is attainted of felony , and judged to death , the killing of him is felony . . h. . b. corone . . t is said , where a woman is arraigned , and adjudged to be hanged , or burnt , according to the crime , and because that she is with childe , execution is respited untill shee bee delivered , and now she is with childe again , because that once execution was spared for the same cause , now execution shall be commanded to be done : and the gaoler shall not be punished . h. . b. corone . . a man steals goods in one county , and flees with them into another , he may be indicted , or appealed in any of the counties , for t is felony in every of the counties , for felony alters not the property . , h. . b. corone . . note , that if come for to do robbery , affray , riot , or the like , which are unlawful acts , one of them enters into the house , and kills a man , or doth other unlawful act , all the others which came with him to do the unlawfull act are principals . the same law in the case of fines lord dacres , one of his company killed a man in hunting in a forrest , and the lord dacres , and the other hunters , as mantel , and others were principals , and were all hanged . . h. . b. corone . . a man shall not plead that the dead assaulted him , and in his own defence , &c. but not guilty in an appeal , and give it in evidence , and murder cannot be justified . see tit. appeal . note , by the justices , that t is felony to kill a man in justing , or where men play at sword and buckler , and the one kills the other , and the like notwithstanding the commandement of the king , for t was against law. time. h. . b. corone . . note , by all the justices , that if a man be indicted of felony , in the time of h. . the king dies , he shall be arraigned for it in the time of e. . but by some this indictment shall be removed by cerciorari from the antient custos rotulorum , and put to the new commissioners . . e. . b. corone . . note , that indictments and records , which are taken before justices of oyer and terminer , and not determined before their commission be ended , these shall be put into the kings bench to arraign the parties there . s. by cerciorari out of the chancerie , which shall be to commissioners of oyer and terminer , and after shall be sent into the kings bench by mittimus ( b. corone . . oyer and terminer . . ) but indictments taken before justices of gaol delivery , and not determined , shall be delivered to the clerk of the peace , or shall remain with the custos rotulorum of the county , where , &c. and when other justices of gaol delivery come there , they may proceed upon them upon judgement of death , and this by statute . and b. seems that they shall proceed by the equity of the words , to allowance of clergy or sanctuary ; and the like . . e. . b. corone . . note , that t was holden , that where a stable is near a house inheritable , as parcell of the house , and a man breaks it by night , to the intent to rob in it , t is felony , though he takes nothing , for t is burglary . . e. . b. corone . . burglary shall not be judged , but where there is breaking of a house by night . and by the justices , where the principall and accessarie are arraigned , and the principall hath his clergie , this shall not serve the accessarie , but he shall be arraigned and hanged , where both are found guilty . . e , . b. corone . . a man is indicted as accessary to a felony , and acquitted , and after is indicted of the same felony , as principal , he shall be arraigned and hanged , notwithstanding the acquittal as accessary . and so was thomas knightly first indicted and arraigned as accessary of i. s. and acquitted , and after was indicted of the same murder as principal , and arraigned of it again . . e. . b. corone . . a woman took the church for felony , and abjured the kingdome . . e. . b ▪ corone . . note , that 't was agreed by all the justices at serjeants inn in chancery lane octob. . as to the trial of treason , and misprison of treason , that by the statutes , accusers or testes ought to be at the indictment , or the sayings and accusations in writing under their hands , or the testimony of others of the same accusation , which shall be read to the jury at the indictment ; and if the accusers are dead at the time of the indictment , yet it suffices if the accusation be there testifying it , for then there were two accusers . but for any treason de anno . e. : there needs no accusers at the trial , because that 't is enacted by the statute of . m. . cap. . that all trials of treasons , shall be by the order of the common law onely , & non aliter . and the common trial by common law , is by jurie , and by witness , and by no accusers . and the same law of treason of coyning , that accusers need not at the arraignment , but at the indictment ut supra onely . but for all treasons done by the said act of . m. . there ought to be witnesses , or accusers , as well at the indictment , as at the arraignment , according to an article contained in the said statute , in fine . and for misprision of treason there ought to be witnesses , or accusers , as well upon the indictment , as upon the arraignment , by the statute of . e. . cap. . the end , for the said statute of q. mary , doth not restrain accusers at the trial , but only in cases of treason , and not for misprision . and t was agreed that petty treason ought to be tried as high treason , s. by accusers by indictment ; but at the trial there needs not accusers , and at this resolution , wer sir william portman chief justice , mr. hare master of the rolls , sir robert brook , sir david brook , sir humfrey brown , sir john whiddon , sir edward saunders , sir william stampforde , and master dalyson , justices , dyer serjant , and griffine , and cordell attorney and soliciter . and t was agreed , that counsellers who give evidence against traytors , are not accusers . and by the civill law , accusers are as parties , and not witnesses , for witnesses ought to be indifferent , and not come till they are called , but accusers offer themselves to accuse , for t is a good challenge to witnesses , to say , that he was one of his accusers . . m. . b. corone . , 't was said for law , that a man cannot abjure for high treason . quaere of petty treason , for t is manifest in a chronicle in the time of h. . that a woman that killed her mistress abjured the realm . . m. . b. corone . . the end . manningt ' . and another were indicted of felony in the high way in the county of bedford , for robbery of one edward keble clerk with daggs , & the indictment and the body were removed into the kings bench , and there they were arraigned , and pleaded not guilty to the countrey , and were tried . but after a writ was sent with the body into the countrey with nisi prius to trie them in the county of bedford . and this is a common course , so to remove the body and the record out of the kings bench to the countrey again . . m. . b. corone . . a man takes church , and the coroner comes to him , and demands of him for what cause he does it , who said that he would be advised by . days before that he would declare his cause , the coroner may draw him out presently ; but if he will confess to him felony , he may remain there by days , before that he abjures . otherwise where he takes sanctuary , as westm ' . knoll , and the like , for this may hold him for term of life , except in case where a statute changes it ( b. corone . sanctuary . . ) but if he will abjure within the days , the coroner shall give him a certaine day to doe it . ( b. corone supra . ) none shall take priviledg of the church , except that he be in danger of his life ( b. corone . . ) nor none shall have the priviledg of sanctuary except he in periculo vitae . and note that sanctuary cannot have a lawful commencement , nisi pro vita hominis , as for treason , felony , or the like ; and not for debt , therefore where a grant , or prescription is to have sanctuary for debt , t is worth nothing , for t is against the law. but if his body were in execution , and he escapes , and comes to a sanctuary ordained for safeguard of the life of a man , he shall enjoy it , for by long imprisonment his life may be in jeopardy . and if the church be suspended for bloodshed , yet he which takes the church for felony , shall enjoy it by daies ( b. sanctuary supra . ) there are two manner of sanctuaries . s. private , as westminster knoll , and the like . and general sanctuaries , as every church ( b. corone . . the end . ) abjuration for felony , discharges all felonies done before the abjuration . a man cannot abjure for petty larceny , but for such felonies for which he shall suffer death . lecture b. corone . . note , that these words ( quod pred . vitam & membra ) in a statute , are intended felony , without the word of felony in it . regula ( b. corone . . ) corporations . note , that the justices of the common bench accords in case of a corporation , that known by the one and the other , in a suite by a name known , is no plea for the plaintiff , for he ought to acknowledge his proper name . but if the defendant be named by the plaintiff by a name known , though the defendant be corporate , it suffices . yet quaere ; if there be not a diversity betwixt an action real , and an action personal . . h. . b. corporations . . by fitz. ●f the abbot and covent sel all the lands and the abby , yet the corporation remains quaere by b. of what he shall be abbot , for there is no church nor monastery . and by him quaere if the abbot die , if they s. the covent , may chuse another , the house being dissolved . h. . b , corporations . . see tit extinguishment . the king makes a duke or earl , and gives to him . l. of land , or the like , by the same name , so that the creation and the grant , is all by one and the same patent , yet t is good . and the same law of making a corporation and giving to them land by the same patent , and name . . e. . b. corporations . . costes . note , by spilman justice , that at common law , a man shall recover costs in a quare impedit : but otherwise , after the statute of westm. . cap. . because the statute gives great dammages in a quare impedit . . h. . b. costes . . note , where an action penal is given by statute , to recover a great summ by action of debt for ingrossing , or the like , there the plaintiff shall not recover costs nor dammages in this action of debt . h. . b. dammages . costs . t was said , that if a lessor brings debt against his lessee for years , for rent , and the plaintiff is nonsuit , or if the inquest pass against him , he shall render costs to the defendant by the stat. for a lease for years rendring rent , is a contract . . m. . b. costs . covenant . where an assignee shall be charged with the covenant of his grantor . see tit. assignee . plea of covenants perform generally , without shewing how , is no good plea , see tit. conditions . t is said by the justices , that a writ of covenant lies upon an indenture , without this word covenant and grant for him , his heirs and executors . m. . b. covenant . the end . coverture . note , that a statute staple , nor deed enrolled , shall not be accepted of a fem covert , by the common law : contrary , by the custom in london of a deed enrolled ; for this shall binde in london as a fine at common law , ( b. coverture . . the end . ) nor a fine , statute , nor deed enrolled , shall not be suffered by an infant . . h. . b. coverture . the end . count. precipe quod reddat against tenant for life , who prays in aid of him in reversion , who appears gratis , and joyns in aid ; and the demandant counts de nono against the tenant , and the prayee , and they vouch the common voucher , and suffer recovery for assurance . and yet t is said , that the priee shall not have oyer , but of the count. cusus . h. . b. count . court baron . t was said that the lord of a mannor cannot hold court , nor do justice without two suitors : and if they die , or if that there be but one suitor , the mannor is determined ; for t is not a mannor without suitors . . h. . b. court baron . the end . if an understeward holds a court baron , and grants copy-holds to the tenants by copy of court roll , without authority of the lord , or high steward this is a good grant ; for in plena curia contrary if he doth it out of court , without such authority . yet the high steward may demise customary land by copy out of court by some . quaere thereof by b. if he hath not a special authority from the lord to demise . . e. . b. court baron . tenant by copie , . customs . information in the exchequer against a merchant for lading wine in a strange ship ; the defendant pleads the licence of the king made to i. s. to do it , which i. s. had granted his authority thereof to the defendant & quod habetur consuetudo inter mercatores per totam angliam : that one may assigne such a licence over to another , and that the assignee shall enjoy it , &c. to which t was demurred in law : and t was agreed for law , that a man cannot prescribe a custom per totam angliam : for if it be per totam angliam , this is the common law , and not a custom : contrary , if the custom had been pleaded to be in such a city or county , as gavelkinde , borrow-english , glocest. fee , and the like , . h. . b. customes . dammages . note in trespass local , that upon an inquest of office to enquire of dammages , the court may abridge , or increase them . but otherwise upon the principall , s. upon issue tryed betwixt party and party , ( but there it may encrease costs . ) for the party is at his attaint : but upon an inquest of office he cannot have an attaint , . h. . b. dammages . see tit. costs . default . if a woman be received in default of her husband , and after shee makes default , judgement shall be given upon default of the husband ; and no mention shall be made of the receit . time h. . b. default . demurrer . inquisition found that i. s. held certain land of the king , ut de honor suo gloucester , which is not in capite , upon which proces issued against w. s. who had intruded , &c. and to sue livery : and because that this tenure is not in capite , and therefore livery not due ; the party demurred upon the record ; for t is no cause of livery . and where a man declares upon a statute , and recites it otherwise then t is , or pleads it otherwise then t is , the other may demur upon it ; for no such law if it be misrecited . . h. . b. demurrer in law . denizen . see tit. alien note , for law , that where an alien born comes into england , and brings his son with who was born beyond sea , and is an alien as his father is , there the king by his letters pattents cannot make the son heir to his father , nor to any other : for he cannot alter his law by his letters pattents , nor otherwise , but by parliament ; for he cannot disinherit the right heir , nor disappoint the lord of his escheat : and the son of an alien , which son is born in england , he is english , and not an alien , . h. . b. denizen . deputie . t is said that a deputation of an office which lies in grant , ought to be by deed , and not by word , . h. . b. deputy . detinue . by shelley and others , if a man meddle with goods , as by trover of them , he shall be thereof charged , though that he deliver them over before action brought , . h. . b. detinue de biens . the end . debt . where debt lies , and where a scire facias ? see tit. age. debt upon indentures of covenants : where the defendant had covenanted to do many things , and the plaintiff the like , to do many other things , ad quas quidem conventiones per implendam uterque obligatur alteri in one hundred pound , and the one breaks covenant , by which the other brings debt , and the defendant pleads payment of ten pound to d. which was all to which he was bound : judgement if action , and no plea per curiam , because he did not shew thereof a deed , where the plaintiff declared upon the indenture , which is a deed , and yet otherwise in pleading of payment of rent reserved upon a lease for years , made by indentures : for there he may levy it by distress , and therefore an averment may come in ure . but otherwise where all rises by specialty , where it lies in payment . . h. . b. debt . debt upon an obligation with condition , where the condition is not broken , by which he is barred , he shall never sue this obligation again : for once barred est pro imperpetuo , . h. . b. debt . administrator of a lord brings an action of debt for relief , which fell tempore intestati , and the defendant pleaded in bar , and traversed the tenure , and so at issue . and therefore b. seems that the action lies clearly for him : for the defend . did not demur : so if it be brought by an executor of the lord for relief due to the testitor , rot. ● : in the common bench. . h. . b. debt . relief . the ends . devise . not , that a fem covert with assent and will of her husband , may make her testament , and devise the goods of her husband , yet if the husband prohibit the probat of the testament of the wife after her death , then all is void : for the husband may countermand it : b. devise . the end . testament . the end . and a devise by the husband to his wife is good , though they are one and the same person in the law ; for the devise takes not effect till after the death of the husband , and then they are not one person , . h. . b devise : t was agreed by all , that if a man wills that i. s. shall have in his land in date after the death of his wife , and dies , now the wife of the devisor by these words shall have the land for her life , by reason of the intent of the will. . h. . b devise . note , that in london a man may devise by testament to a common person , though the testament be not enrolled . but if he devises in mortmain he ought to be a citizen , and a freeman resident : and the testament o●ght to be enrolled at the next hustings . . h. . b. devise . a man devises to two & heredibus eorum , and dies ; and after one of the devisees dies , and the other survives , he shall not have the intire by survivor , but onely a moytie ; for this was the intent of the devisor : by audley chancellor of england , b. devise . and by b. there the end . if one devise to another in feodo simplic● , the devisee hath a fee simple . . h. . a man wills that his land devisable shall be sold by his executors , and makes four executors , and dies , all the executors ought to sell , for the trust is put joyntly in them . quaere , for b. seems , that if one or two die , that the three or two which survive , may sell ; for there is the plural number , executors : and death is the act of god ( b. devise . ) and by him where such will is made , and some of the executors refuse , and the other prove the testament , those , or he which proves the testament may sell by the statute , ( b. devise . . ) where t is expressed that t was doubted at common law , if the sale by one executor were good , or not ( b. devise . ) and by some , where a man wills that the land shall be sold post mortem i. s. by his executors , and makes four executors , and dies , and after two of the executors dies , and after i. s. dies , there the two executors that survive may sel , for the time is not com til now , . h. . b. devise . t was said that baldwin , shelley , and montague , justices , determined for law , that where a man hath feoffees to his use before the statute of uses made . h. . and after the same statute ; and also after the statute of . h. . of wills , he wills that his feoffees shall make an estate to w. n. and his heirs of his body , and dies , that this is a good will and devise ratione intentionis , &c. . h. . b. devise . the end . if a man devises his land to be sold by his executors , and dies , the heir enters , and after is deseised , yet the executors may sell , and the vendee may enter , b. devise . entre congeable . . the same law if the heir suffer a recovery or levies a fine . and the same law by some , where a man disseises the heir , & dies seised , and his heir enters , the executors shall sell , and by the vendee may enter ; for he hath no right , nor no action is given to him : for he hath but a title of entry by the sale , and therefore he may enter , for otherwise he hath not any remedy , by hales justice . e. . b. devise . agreed for good law , that the occupation of a chattel may be devised by way of remainder , but if the thing it self were devised to use , the remainder is void ; for a gift or devise of a chattel for an hour , is for ever ; and the donee , or devisee may give , sel , and dispose it , & the remainder depending upon it , is void , time h. . b , devise . the middle . where a man devises that w. o. shal have the occupation of his plate for term of his life , and if he dies , that it shal remain to i. s. this is a good remainder : for the first hath but the occupation , & the other after him shal have the property , . e. . b. devise . the end . note if a man hath issue . sons , and devises his lands : s. one part to the two of his sons in tail , and another part to the third son in tail , and that none of them sell any part , but that every one shal be heir to the other , & dies , that in this case if one dies without issue his part shall not revert to the eldest son ; but shall remain to the other son : for these words ( that every one shall be heir to the other ) implies a remainder ; because that t is a will , which shal be intended and adjudged according to the intent of the devisor . . e. . b. devise . done . a man devises his land to another , for to give , sell , or to do with it at his pleasure ; this is a fee-simple : for his intent shall be taken to give a fee-simple . . e. . b. devise . note , by bromley chief justice , and others ; where a man devises his land to a stranger for term of years , the remainder to his son in fee , and dies ; the son may waive the devise , and claim by discent , and yet he shall not avoid the term : no more then where a man leases for years , and dies , the lease is good : and yet the dying seised is good also to toll the entry , b. devise . and b. seems where the father devises to his son and heir in fee , that the heir may waive the devise , and take himself to the discent , ( ● . discent . ) contrary , where the father devises to his son in tail , the remainder to a stranger in fee , there the heir shall not claim in fee , nor waive the devise , for the loss and prejudice of him in remainder in fee. . m. . b. devise . tenant in tail of land devisable , discontinues in fee , and retakes in fee , and devises to a stranger in fee , and dies , the issue in tail is remitted ; for nothing is discended to him by reason of the devise , which tolls the discent , except that the devisee waives it . . m. . b. devise . remitter . divorce . what divorce may bastardize the issue ? what not ? see title bastardie . note , for law , that where the husband and wife are divorced where shee is an inheritrix ; yet mean acts executed shall not be reversed by the divorce ; as waste , receit of rents , taking of ward , presentment to a benefice , gift of goods of the wife , otherwise of inheritance , as if the husband had discontinued , or charged the land of his wife , cui ante divorcium lies . the same of a release of the husband , or manumission of villains , or the like . and if the husband and wife purchase joyntly , and are disseised , the husband releases , and after are divorced , the wife shall have the moytie , though there were not moyties before the divorce ; for the divorce converts it into moyties . . h. . b. deraignment . discent . if land be given for term of life , the remainder to the right heirs of w. n. which w. n. is attainted of felony , and dies , and after the tenant for life dies , the remainder shall not take effect , nor none shall have the land ; for he hath not heir ratione attincturae . and though all be a name of purchase , yet none can take it , but he which is heir , ( b. discent . done . ) and where land in gavelkinde is given to one for life , or in tail , the remainder to the right heirs of w. n. who hath issue . sons and dies , and after the tenant for life , or the donee dies , the eldest son shal have the land , for he is right heir at common law , & this is a name of purchase , which shall be ordered by the common law. but otherwise of discents to heires in gavil kinde , for then it shall goe to all the sons . . h. . b. discent , & done . . nosme . . note , that sir john hussey knight , enfeoffed certain persons in fee to the use of anne his wife , for terme of her life , and after to the use of the heirs males of his body , and for default of such issue , to the use of the heires males of the body of sir william hussey his father , and for default of such issue , to the use of his right heires , and after had issue william hussey the elder ; and after sir john was attainted of treason . . h. . and put to execution , and after anne died , and the said william hussey the son prayed an ouster l'main of the king. and by whorewood the kings attorney he shall have it , for this name heires males of the body , is but a name of purchase , and sir w. h. shall not have it as heir to sir john , but as purchaser . ( b. nosme . . livery . discent . . ) as if land is given to a man and his heires males of his body , and he hath issue sons , the eldest hath issue a daughter , and the father , and the eldest son dies , the younger brother shal have the land , and yet he is not heir to his father . and the same law where land is given to a man , and to his heirs females of his body , and he hath a son and daughter , and dies , the daughter shall have the land , and not the son . ( b. nosme . . . ) and so where tenant in tail is attainted of treason before the statute of . h. . his son shall have the land , for he doth not claim onely as heir , but by the statute and per formam doni ( b. nosme . . ) yet some were of a contrary opinion , and took a diversity , where the gift is to the father himself , and where t is to the heires of his body by remainder ( b. nosme . . & . ) and therefore in . h. . if lands are given for term of life , the remainder to the heires females of the body of i. s. who is dead , and hath issue a son and daughter , and after the tenant for life dies , the daughter shal not have the land , for she is not heir : for by hare master of the rolls an antient apprentice , there is a difference betwixt a gift in possession to a man and his heires females , &c. and a gift to a stranger , the remainder to the heirs females of another , for there he ought to be heir indeed when the remainder falls , or otherwise the rem ' is void for ever . ( b. done. . ) for though that the case holds place in the two cases put by whorewood , this is because that the gift was once vested which was in the father , and therefore good law there , otherwise in the principall case , where the rem ' . is not vested . yet by some the opinion of whorewood is the better , for where land is given to a man and his wife for term of life , the rem ' to the heires males of the body of the man , this remainder cannot be vested in the life of the wife , for t is not a tail in the man , by reason of the estate of the wife ; yet , if he hath issue sons , and the eldest hath issue a daughter and dies , the father and mother dies , the younger son shall have the land , as heir male , and yet he is not heir indeed ; the same law , if such gift were , the rem ' to the heirs females of the body of the man , who hath a son and daughter and dies , the daughter shall have the land though she is not heir ; the same law where land is given to w. n. for life , the remainder to i. s. for life , the remainder to the heires males of the body of the said w. n. who hath sons , the eldest hath issue a daughter and dies , w. n. and i. s. die , the younger son shall have the land as heir male , yet he is not heir indeed , but his neece is heir to his father ; for t is not matter of the first vesting , nor of the remainder , for where the first estate for term of life is executed , the remainder over ut supra , the remainder may depend in abeyance quousque , &c. ut supra . but otherwise of a remainder to the right heires , for none can have that , but he which shall be heir indeed . ( b. nosme . . ) and therefore t was agreed , that the remainders to the right heires of sir john hussey was forfeited by the attainder . . h. . b nosme . if land discends to the daughter within age , and after she is disseised , the disseisor dies and his heir enters , and after a son is born , he born shal avoid the discent , for he claims not as heir to his sister , nor was he in esse at the time of the discent . lecture . b. discent . . discontinuance of possession . recovery against tenant in tail , the reversion or remainder in the king in fee , shall binde the tenant in tail , and the issue in tail , but not the king. but now by the statute it shall not binde the issue in tail , but that he may enter . . h. . b. discontinuance of possession . . note , that t was agreed in the case betwixt the king and anthony lee knight , if the king tenant in tail of the gift of another makes a lease for years , or for life , and hath issue and dies , the issue may make another grant without reciting them ; for they are void by the death of the king tenant in tail , who granted , and the heir of the king shall avoid it , so that this shall not binde but during the life of the grantor , for a grant without warranty or livery , is no discontinuance , and the king upon his grant doth not make livery . and also every discontinuance is a wrong , which the king cannot do ; the same law if he had granted in fee , t is no discontinuance ; ( b. patents . . discontinuance of possession . . tail. . leases . ) and so see that the king may be tenant in tail , for when a man gives to the king in tail , he cannot have a greater estate then the donor will depart with to him . . h. . b. tail. . release no discontinuance . see tit. releases . discontinuance of proces . note , that a discontinuance puts the party to a new originall , but where the parol is without day , this may be revived by a re-summons or re-attachment , for the originall remains . regulae . b. discontinuance of proces . . dismes , tythes . t was said that if a parson demise his glebe to a lay man , there he shall pay tythes ; contrary of the parson himself , that reserves them in his proper hands . and that land first discharged of tythes , shall be ever discharged of them . yet if he which hath purchased a mannor and rectory , which is discharged of tythes , leases part of his demeanes , the lessor shall have tythes of that , because that he hath the parsonage . . h. . b dismes . disseisor . t was said for law , if a. leases the land of i. n. to me for years , rendring rent , the lessee enters , and payes the rent to the lessor , the lessor is a disseisor , for countervails a commandment to enter , and he which commands is a disseisor , which note by his void lease . . h. . b. disseis ' ▪ . distress . where land shall be charged with distresses by dower of part , and so of partition . see tit. avowry . note , for law , that he which distrains beasts may put them into a close house , if he will feed them ; for the distress in pound overt , is but to the intent , that the owner may feed them . . h. . b. distress . . t was agreed for law by the justices , that if a man distrain without cause , the owner may make rescous , but if he impounds them , the owner cannnot justifie the breaking of the pound , and taking them out , for they are in custodia legis . . e b. distress . rescous . . the end . done , gift . devisee for life of a chattell , the remainder over , he for life gives the chattell , whether this shall barr the remainder . see tit. chattells . t is said for law , that if a man gives omnia terras & tenementa sua in d by this leases for years do not pass , for these words lands and tenements shall be intended free hold at least . . h. . b. done. . the difference betwixt a gift in remainder , heredibus masculis de corpore & rectis heredibus . see tit. discent . t was granted by shelly justice , and others , that if the king give a chattell without deed , and the donee takes it by his commandment , t is good . . e. . b. done. . the middle . if a man gives or grants omnia bona sua , leases for years , nor award , shall not pass , for they are chattels reals . and b. seems that a grant of prox ' present . ecclesiae unica vice is a chattell , & non bona , for bona are goods moveable , living and dead , but not chattels . . e. . b. grants . . done. : dower . a woman shall not be endowed of a rent reserved upon a lease of her husband for term of life , for the rent is not an inheritance , and t is determinable upon the death of the lessee , and yet the heir shall have it , for t is incident to the reversion . and where a man seised in fee , leases for years rendring rent , and afterwards takes wife and dies , the wife shall have dower of the land , but shall not have execution during the term of years , for elder title , &c. and she cannot be indowed of the rent for the cause aforesaid . . e. . b : dower : . note , by the justices , by the statute where a man makes his wife joynt purchaser with him after the coverture , of any estate of free-hold , except it be to him and his wife , and their heires in see simple , this is barr of dower , if she agree to the joynture post mortem viri , otherwise of fee simple , for such joynture is not spoken in the statute . nor a devise of land by the husband to the wife by testament , is no barr to dower , for this is a benevolence , and not a joynture . . e. . b. dower ▪ ▪ dum non fuit compos mentis note , that if a judge or justice be of non sane memory , yet the fines , judgements , & other records which are before him , shal be good . but otherwise of the gift of an office or the like by him ; for this is matter in fact , and the others are matters of record ; for matters in fact may be avoided by non sane memory , otherwise of matter of record . . m. . b. dum non fuit compos mentis . . ejectione custod . t was said that a man shall have a writ de ejectione custodie of a rent , and this before seisin of it ; for seisin in law shall be thereof adjudged , by reason that he cannot receive it before the rent day . yet otherwise of land , for there he may enter ▪ ▪ h ▪ ▪ b. quare ejecit infra terminum . . enquest . note , betwixt the king and the bishop of rochester for treason , the bishop shall not have knights in his jury ▪ where knights ought to be returned , when a peer of the realm , as a bishop , and the like , is party ▪ yet quaere , if it were challenged . . h. . b. enquest . . t was holden in the common bench by the prothonatories , if a protection be cast at the day of nisi prius , and the justices take the jury de bene esse , and at the day in bank , the protection is allowed , now though the first ●aking is void , yet the inquest shall not be recharged by resummons , for when the inquest is once sworn , and give verdict , they shall never be sworn again upon this issue . . m. . b. enquest . entre congeable : lawfull entry tenant for term of life aliens to b. to have to him and his heires for term of life , of tenant for term of life , this is no forfeiture , for all is but the limitation of the estate . b. forfeiture of lands . . ) and if tenant for terme of life suffers a recovery , he in reversion cannot enter , but is put to his writ of entrie , ad terminum qui preteriit , or writ of right , and shall falsifie the recovery in it , if he hath cause . ( and if he will have it sure , the tenant for life ought to pray in aid of him in reversion , and if he joynes in aid , and both vouch over , then well upon recovery had , &c. as betwixt corbet and clifford in the countie of buck ' this year . ) but if tenant for life be impleaded , and prayes in aid of a stranger , he in reversion may enter , for this is a forfeiture . but if he doth not enter till the other hath recovered , then he cannot enter , but is put to his writ of entrie , ad terminum qui preteriit , vel ingres . ad communem legem , and shall falsifie the recovery there . . h. . b. entrecongeable . . fauxifier . . forfeiture of lands . . the end . cestuy que use in tail suffers a recovery against him upon a faint title before the statute of uses , and dies , the feoffees cannot falsifie it in an assise by way of entry , but shall have a writ of entry , ad terminum qui preteriit , or a writ of right , and shall falsifie it by this action . b. entre congeable . . fauxifier . . ) and if he leuies a fine with proclamation , and dies , if a stranger of his own head enters in name of the feoffees , or to their use within the years , this shall avoid the ●ine though the feoffees did not command him ; for by this the freehold is in them till they disagree , or till another enters . . h , . b. entre congeable . . the end . t was doubted , if a recovery had against cestuy que use in tail , shall binde the heire in tail . but by hales just. by such recovery the entry of the feoffees seised to the use of the estate taile is taken away , but after the death cestuy que use , who suffered the recovery , the feoffees may have a writ of right , or writ of entrie , ad terminum qui preteriit in the post , or the like . and by some , there is no use in tail , but t is a fee simple conditional at the common law , as t was of a tail before the statute of w. . and this statute makes not mention but of gifts in tail , which is tails in possession . and therfore quaere , if the tail in use cannot be taken by the equity of it , yet t was doubted if the issues and the feoffees shall be bound after the death of cestuy que use , who suffered the recovery , by reason of those words in the statute of . r. . which wills that the recovery shall be good against the vendor , and his heires , claiming only as heir , and against all others , claiming onely to the use of the vendor and his heires , and this is intended by some of a fee simple , and in the case afore the issue in tail , claims as heir in tail in use . ( b. feoffements to uses . . the middle . ) yet see the statute of . h. . that a fine with proclamation levied , or to be levied by tenant in tail in possession , reversion , remainder , or in use , after proclamation had , shall binde those tenants of those tails and their heire for ever . and see that the same statute is as well pro temporibus preteritis , quam futuris . . h. . b. feoffements to uses . . the end . g. t. knight seised in tail to him and the heires males of his body , discontinues , and retakes to him and e. his wife , and to the heires of their two bodies , and had issue , t. and w. and died , and after e. his wife survived , and t. had issue e. nuptam t. w. and died , and after w. by covin of e. his mother , tenant in joynture , brings a formedon upon the elder tail against his mother , and she appeared the first day , and w. recovered by nihil dicit , and t. w. and e. his wife heir to g. enters by the statute of . h. . and the entry adjudged lawfull by the same statute , which wills such discontinuances , alienation , warranties , and recoveries shall be void ( b. entre congeable . judgement . . ) and it need not to say that the recovery was executed , for because t was void , it shal never be executed . and e. the heir averred that he is the same person to whom the reversion appertained , and shewed not how heir to it , and yet good by molineux , and hales justices , contra brown and mountague chief justice of the common bench. but all agreed that t was a recovery by covin , notwithstanding t was upon a true title . and good , notwithstanding he did not shew cause of covin . . h. . b. entre congeable . . collusion . . agreed for law , that if land escheat to the king , which is in lease for years , or charged with a rent charge , and office is found for the king of the escheat ( the lease or grant not found in the office ) the lessee cannot enter , nor the grantee cannot distrian , but if the king grant the land over , the lessee may enter , and the grantee may distraine . but a man which claims free hold in the land , cannot enter without traverse of the office , by b. . h. . b. entre congeable . . note , that t is ruled in the serjeants case , that where a common person leases lands for years , rendring rent with a clause of reentry , and after grants the reversion over , the tenant atturns , the grantee may reenter for condition broken , by the statute by express words . and the same law of the grantees of the king. e. . and all others heires to king h. . by the equitie of the said statute , which provides remedy for the patentees of the king. h. . and for grantees of common persons . . m. . b● entre congeable . . t was said that where the interest of the king is certain and determined , the party may enter , quaere by b. time. h. b. reseiser . . the end . error . 't was said in the kings bench , where a writ of error beares teste before the first judgement , and the record is certified in the bench , that 't is good ; and yet the writ saith , quod si judiciū reddit . fit , tunc record . & process . habeatis , &c. e : . b : errour . escape . debt upon an escape , against the sheriffe , who said that before the escape the prisoner was condemned in the said condemnation , and in execution , ut in narratione , in the time of a former sheriffe , who suffered him to escape , and after re-took and imprisoned him , and was removed , and this defendant was made sheriffe , and after suffered him to escape ; judgement is , of this second escape you ought to have your action : and a good plea , for he hath confessed and avoided the plaint ; for when the prisoner first escaped , and the first sheriffe re-took and imprisoned him : this second imprisonment is no execution for the party , but the party is put to his action , for the escape against the first sheriffe , e : . b : escape . escheate . foundership cannot escheate by death without heir , nor bee forfeited by attaindor of felony or treason ; for 't is a thing annexed to the blood , which cannot be divided , as 't was said , after the augmentation court took commencement ; for a man who is heir to another , cannot make another to be heir , time : h : . b : corodies . the end . note , by brown , hales & cooke , justices ; if there bee lord and tenant by fealty and rent , the tenant is disseised and dies without heir , the lord accepts the rent by the hands of the said disseisor , yet hee may enter for the escheate , or have a writ of escheate , and the receipt of the rent no barre ; for the disseisor is in by wrong : otherwise if he had allowed for it in a court of record , or had taken corporall service , as homage , &c. so of acceptance of rent by the hands of the heir of the disseisor , or of his feoffee , which are in by title , e : . b : escheate . essoign , if the tenant in a praecipe quod redd : prayes the vjew by attorney ; his attorney shall bee essoyned upon the vjew : but if he himselfe prayes the vjew in proper person ; then per plures , none shall be essoyned upon the vjew but the tenant himself ; for after processe upon a voucher , he himself shall bee essoyned , and by consequence in like manner shall be upon the vjew . and note , that granting of an essoyn , whereon essoyn lyes not , is not error . contrary of denying of essoyn where it lyes , h : . b : essoine . estates . the king gives land to i : s : & heredibus masculis suis ; and 't was adjudged by all the justices in the exchequer camber , that the grant is void ; because the king is deceived in his grant ; for it sounds in fee simple ; whereas it seems the king intended but an estate tail , which is not so expressed ; and therefore now he is but tenant at will. otherwise in case of a common person , h : . b : patents , estates . 't was said for law , that if a feoffment bee made to w : n : during the life of i : s : these words ( during the life of i : s : ) &c. shall be void ; for they are contrary to a fee. contrary of a feoffment in fee so long as pauls steeple shall stand , h : . b : estates . a man gives land to two & heredibus , and doth not say suis ; this is no fee-simple : and 't was said that the reason is , because that two are named in the deed ; and therefore 't is incertain to which of them heredibus shall bee referred . but if there were but one in the deed , then it shall be referred to the one only . but in a devise 't was said by some , that the words afore are a fee-simple . contrary in a gift and feoffment ; for the one shall bee taken by intendment , the other not , h : . b : estates . a man gives land to a husband and wife for terme of their lives , & diutius eorum vivent . the remainer to the heirs of their bodies , this is a taile executed , by reason of the immediate remainer , notwithstanding the words of the statute , quod voluntas donatoris in omnibus observetur , by all the justices , h : . b : estates . by opinion in the kings bench , if a man deviseth his land to w : n : solvend ten pound to his executors , and dies , the devisee hath a fee-simple , by reason of the payment , without words , heredibus , or in perpetuum , and this shall be intended the intent of the devisor : the same law if a man sell his land to w : n : for twenty pound , this shall be intended a sale in fee-simple , without words , heirs , for conscience &c. & est equum & bonum , which is a ground in every law , ed : . b. estates . estoppell . if a man hath liberties , rent , common , or the like , by prescription , and after takes a grant thereof of the king by patent , or of another by deede , this determines his prescription by conclusion ( b : prescription . . estoppell . ) for writing shall determine contracts and matter in fait , h : . b : prescrip . . 't was agreed that a stranger to a fine or recovery , shall not pleade it for estoppell ; contra , if hee claim the same land under the fine or record , by those which were parties , or claims the same estate , or part of it , and that this estate continues , for then he is privy in the per : h : . b : estoppell . the end . if two joyn-tenants are which hold of the king in chiefe , and the one releases to the other in fee , and after both respit homage in the exchequor ; by this , he which released hath gained the moity by conclusion , as it shall be where two joyne in suite of livery out of the hands of the king , where the one hath nothing , by the opinion of some : and the same of partition by two , where the one hath nothing , h : . b : estoppell , note that a man which leases by deede poll for yeeres , or by parol , may avoid this lease to say , that hee had nothing in the land , tempore dimissionis : contrary , upon a lease by indenture , for this is an estoppell h : . b. estoppell . if a man indicted of extortion , or trespasse , puts himself upon the grace of the king , and makes a fine , and after the party sues him for it , by bill or writ , and he pleades not guilty , hee shall have the plea , and the making the fine to the king shall not estop him ; for there the entry is , quod petit se admitti per finem , and doth not confesse it precisely , and therefore no estoppell : yet b seemes to make the fine by protestation that hee is not guilty , and then 't is all cleere , time : h : . estoppell . a man pleads a pardon of the king , in the exchequer , for alienation , without license , where the land is not holden of the king in capite : this is an estoppell , to him to say after that , he doth not hold in capite , ed : . b : estoppell . by hales and montague , if a man leases to n : his own land , by deed intended ; the indenture is no estoppell , but during the lease ; and not after , casus b : estoppell . estranger . a : is bound to b : in a . l. and b : makes a defesance to w : s : that if w : s : payes . l. that the obligation shall be void . this is worth nothing per opinionem ; because that a : that should plead it , is a stranger to the deed : but where two are bound to me , and i make a defesance to one ; this shall serve the other to plead , if he can shew it : as in trespas against two , a release to one shall serve the other , if he can shew it , h : . b : estranger al fait . estray . if a man takes beasts as an estray , and keeps them three quarters of a yeer , and after they stray from him , and another happens on them ; the first lord which kept them for three quarters , cannot take them again , because that he had no property in them till hee had kept them a yeer and a day , and proclamation passed in the two next market towns , and two market dayes , the one in the one town , and the other in the other ; for the possession of the second seizor is good against him who hath no property , h : . b : estray . executions . note , by fitz : and the court , if a man recover in a writ of annuity , he shall have a fierifacias of the arrearages incurred within the yeer , and a scire fac : after , as soon as the annuity is arrear , and never a writ of annuity again ; for 't is executory , and the same law of an action , and judgement upon composition , which is executory de tempore in tempus , and the like . and in every scire fac : in which he recovers after the first judgement , he shall have execution of the arrearages within the yeer , by fiere fac : for every one is founded upon the judgement , h : . b : executions . scirefac : . by the whole court in the common-bench , if two are bound in an obligation conjunctim & divisim , the obligee impleads the one , and hath execution of his body ; and after impleads the other , and condemns him , hee may have execution against him also ; for the taking of the body is a good execution , but 't is no satisfaction ; and therefore hee may take the other also . but if the one satisfie the plaintiff , hee shall not have execution after ; and therefore this order , that the plaintiff upon an obligation shall have but one execution , is intended such execution which is a satisfaction , and where both are impleaded by one originall , by severall precipes , &c. h : . b : execution . scire fac : upon recovery of debt and damages ; the defendant said , that once the plaintiff sued a capias ad satisfaciend . by which the sheriff had took his body , judgement , &c. and there 't is said , that a capias ad satisfaciend . is not of record before the retorn of it ; therefore no plea : yet b : seems the plea good by the taking of the body , though no writ bee returned , h : . b : executions . executors . 't was noted by fitz : and others , that in an action of debt against an executor , h : . upon an obligation of his testators , who pleaded not his deed , and found against him , the judgement by the record was , that the plaintiff should recover of the dead , if hee hath any ; and for that , the book at large , fol. . is reported further in these words ; and if he have not , then de bonis proprijs , which words are not in the record ; 't was cōmanded by them to mend the book ; for 't is contrary to the record , and so mis-reported , h : . b : executors . a man makes two executors , and dyes ; the one executor makes an executor , and the other survives , and dyes intestate ; the executor of the executor shall not meddle ; for the power of his testator was determined by his death , and by the survivor of the other ; so that now the ordinary shall commit the administration of the goods of the executor which survived , & de bonis non administratis of the first testator , h : . b : executors . a man makes a : and b : his executors , and wills that b : shall not meddle during the life of a : and good ; for he doth not restrain his intire power ; for he may make one executor of his goods in c : and another executor of his goods in d : and so he may divide the time ut supra , h : . b : executors . a man hath a lease for yeers as executor b : and after purchases the reversion of the land in fee , the lease is extinct . but yet the lease shall be against the executor assets by whorewood and hales justices . ( b : extinguishment . leases . surrender . ) and if it shall bee extinct , b : seems to be a devastavit ad ultim : e : . b : extinguishment . the end . exposition . the severall exposition of infra terminum . annorum & infra terminum predict : see tit : conditions . extinguishment . if the abbot and covent give all their lands and possessions to another in fee , yet the corporation remains by fitz : justice , h : . b : extinguishment . lord and tenant ; the tenant is attainted of treason by act of parliament , and to forfeit all his lands ; and after he is pardoned , and restored , by another parliament , habend . sibi & heredibus , as if no such attainder , nor former act had been . or if the heir of him who was attainted , be restored by parliament in such form ; now the seigniory which was extinguished , is revived , and he shall hold of the common person as before ; and yet once the tenure was extinct by the forfeiture of the land to the king , h : . b : extinguishment . revivings . tenures . lord and tenant ; the tenant holds by third three acres of land , the tenant infeoffs the lord in fee , of one acre ; the seigniory is extinct for the third part , and remains for the other two parts ; but if the tenant had let to the lord one acre for yeers , there the seigniory is suspended in the whole , during the term ; for the seigniory may be extinct in part , but not suspended in part , but for the intire , h : . b : extinguishment . where a condition shall not be apportioned , but extinct , see tit : conditions . a man hath a lease for yeers as executor b. and after purchases the reversion of the land in fee , the lease is extinct ; but yet the lease shall be against the executor assets , by whorwood and hales justices . ( b : extinguishment . leases . surrender . ) and if it shall be extinct , b : seems to be a devastavit ad ultimum , extinguishment the end . but where he hath it as executor , & there is a mean lease in reversion for years , and hee purchases the reversion in fee ; the first lease remains by reason of the mean remainder ( b : leases . ) and by hales , if a man leases to another for ten years , and after leases the same land to another for twenty years ; the first less●e purchases the reversion in fee ; yet the first lease is not extinct , because that the second lease , which is for twenty years , is mean betwixt the first lease and the fee-simple , which is an impediment of the extinguishment , e : . extinguishment . where an action by entry and feoffment shall be extinguished , see tit : restor : al primer action . faits , deeds . note , if an action be sued upon a deed , bearing date at cane in normandy , dat : apud cane , &c. that the plaintiffe shall count that the deed was made at cane in com : kanc : and good ; for the place is not traversable ( b : faits . the end ) and also where it truth it was written in cane , 't is suable in england , where it beares date at large , and at no place certaine : but if it bee ( dat : apud cane in normandy , &c. ) quaere if the action lyes , &c. time : h : . note , that 't was agreed by the justices , that this clause which comes after these words , in cujus rei , &c. sigillum apposui , &c. is not any part of the deede , though 't were written before the sealing and delivery , m : . b : faits . faits inroll : deeds inrolled . note , that a deed of husband and wife shall not be inrolled in the common bench , except for the husband only , and not for the wife ; by reason of coverture : nor she shall not be bound with her husband in a statute-marchant , nor the like : but if they make a deed inrolled of land in london , and acknowledge it before the recorder and an alderman , and the wife examined ; this shall binde as a fine at common-law , by their custome , and not only as a deede , and it suffiseth without livery of seisin , h : . b : faits inroll : . & . a man infeoffs the king by deede , and makes livery ; this is worth nothing , for the king shall not take but by matter of record : but if he inroll the deed , then 't is good to the king without livery , for the king takes not by livery , h : . b. faits inroll : . feoffments . note , by the justices , that where two joyn-tenants are , the one aliens all his lands and tenements in d : after the statute of inrollments , and before the inrollment the other joyn-tenant dies , so that his moitie survives to the vendor , and after the vendor , within the halfe yeere , inrolls the deede ; yet nothing passes but the moitie , for the inrollment hath relation to the making and delivery of the deede , so that it shall give nothing but that which was sold by it at the time of delivery of the deede : and by more justices , where a man sells his land by deede indented to one , and after hee sells it by another indenture to another , and the last deede is first inrolled , and after the first deed is inrolled , within the halfe yeere , there the first vendee shall have the land , for it hath relation to make it the deed of the vendor , and to passe the land ab deliberatione facti ; for the statute is , that a free-hold , nor use of it shall not passe , nor change from one to another by bargain and sale only , except it bee by deed indented and inrolled within the halfe yeere ; ergo , if it bee by deede indented and inrolled within the halfe yeere it shall passe as the use might passe at common law , by sale of the land which was presently upon the sale , e : . b : faits inroll : . fauxifier , falsefying . where he in reversion shall falsifie a recovery had against tenant for term of life , where not , see tit. entre congeable . where the feoffees may falsifie a recovery suffered by cesty que use in tayl ; where not , see tit : entre congeable . 't was holden that an attaint shall goe with the land , as a writ of error shall , time : h : . b : fauxifier . the end . faux imprisonment , false imprisonment . 't is said , that a man , as constable , cannot arrest another for an affray , after that the affray is past , without warrant : contrary , before the affray , and in the time of the affray &c. and the same law of a justice of peace , h : . b : faux imprisonment . the end . faux judgement , false judgement . note , by fitz : for cleer law , that in a writ of falfe judgement in nullo est erratum is no plea ; for they joyn issue upon some matter in fait certain alledged by the party , and shall bee tryed by the country ; for 't is no record , contra , in error , h : . b : faux judgement . fealtie . note , in the chequer , that if land descend to me , which is holden of i : s : by homage , and i doe to him homage ; and after other land descends to me by another ancestor , holden of him by homage , i shall doe fealty , but not homage again ; for i became to him his man before . and if both the tenements are holden of the king by homage ; he shall not respit both the homages in the exchequer ; but one homage only , h : . b : fealty . note , in the exchequer , that a dean and chapter , and other bodies politique , shall not doe homage ; for this shall be done in person : and a corporation cannot appear in person , but by attorney ; and homage cannot be done by attorney , but only in person , h : . b : fealty . feoffments . a man makes a feoffment of a house cum pertinentiis , nothing passes by these words cum pertin : but the garden , the curtilage , and close adjoyning to the house , and upon which the house is built , and no other land , though other land hath been occupied with the house , h : . b : feoffments . note , by fitz james ch : justice , englefield just : and divers others , where a disseizor makes a feoffment for maintenance , and takes the profits , the feoffment is void by the stat : of r : . ca : . as to a stranger which shall have an action , for he shall have it against the pernour of the profits ; but 't is not betwixt the feoffor and the feoffee . and also a man who vouches by such feoffment , one of the feoffees , the demandant , shall counter-plead by the same stat : because the feoffment was void . and b : seems that such feoffment shall not be a remitter in prejudice of a third person , h : . b : feoffments . if a man makes a feoffment to four , and the one of the four makes a letter of attorney to i : n : for to take livery for him and his companions , who doth it accordingly ; nothing passes , but to him who made the letter of attorney only , h : . b : feoffments . 't was said for law , that if a man leases land for ten years , and the same lessee lets it over to another for four years ; the lessor makes a feoffment to a stranger by sufferance of the second lessee ; this is a good feoffment without attornment of the first lessee , h : . b : feoffments . 't is said , that a feoffment of a moity , is good , h : . b : feoffments to uses . if a man makes a feofmēt of a house , ac omnia terras , tenemeta et hereditamēta eidem messuag : pertinen : aut cum eodem occupat : locat : aut dimiss : existen : by this the land used with the house shall passe , h : . b : feoffments . the end . a man makes a deed of feoffment to another , and delivers the deed to him in the land , or upon the land ; this is a good feoffment by all the justices in the common-bench , h : . b : feoffments . if a man bee seized of one acre of land in fee , and another is seized to his use in fee of another acre , and hee makes a feoffment of both acres , and livery of the acre which he hath in possession , by this the acre in use passes not , though he made the livery in the one in the name of both , for this is not his acre , but the acre of the feoffees , and the stat : saies that his feofment shall be good , but 't is no feoffment except hee makes livery in the same land : otherwise if livery were made in the land , in use , by reason of the stat : h : . b : feoffments . feoffments to uses , . if a feoffment be made within the vjew , when this is pleaded ; 't is said that expresse mention shall be made in the pleading , that the land was within the vjew , time h : . b : feoffments . the end . feoffment is good of the land by deede , by livery of the deed within the vjew , so that the feoffee enters accordingly : but if the feoffor dies before the feoffee enters , then the land is discended to the heir of the feoffor , and the feoffment shall not take effect , time h : . b : feoffments . a man makes a feoffment by deed to twenty , and delivers the deed and seisin to one in the name of all , this is good to all ; but if hee infeoffs twenty without deed , and delivers seisin to one in the name of all , this is no feofment to any but to him who takes the livery , time h : . b : feoffments . note , that by the stat : of r : . where a disseizor makes a feoffment , for maintenance , and takes the profits ; the feoffment is void by the stat : to all intents , lecture whorwood h : . b. feoffments . feoffments to uses . by shelly just : where the father infeoffs his son and heir apparent , to the intent to defraud the lord of his ward , this feoffment was to the use of the father , during his life , and hee takes the profits during his life , and so see that uses were in antient times , h : . b : feoffments to uses . the end . a man makes a feoffment in fee , to four , to his use , and the feoffees make a gift in tayle without consideration , to a stranger , who had not conusance of the first use , habend : in tayle , to the use of cestuy que use , and his heirs ; the tenant in tayle shall not be seised to the first use , but to his own use , for the stat : of westm : cap : . wills , quod voluntas donatoris in omnibus observetur ; that a man ought to refer his will to the lawe , and not the lawe to his will : also none can bee seised to the use of another , but hee which may execute an estate to cestuy que use , which shall bee perfect in law , which tenant in tayle cannot doe ; for if hee executes an estate , his issue shall have a formedon ; and the best opinion that an abbot , mayor and commonalty , nor other corporations shall not bee seised to a use , for their capacitie is only to take to their own use : and also if the abbot execute an estate , the successor shall have a writ of entry sine assensu capituli : and those that are in the ●ost , as by escheate , mortmain , per●uisite of villeine , recovery , dower by the courtesie , and the like , are seised to their own use and to another use : and also the stat : of r : . is , that all gifts , feoffments & grants of cestuy que use shall be good against all , &c. saving to all persons their rights and interests in tayl , as if this stat : had not been made ; and therefore tenant in tayl shall not bee seized to a use . and 't was agreed by the court , that the words in the end of the stat : of r : . saving such right and interest to the tenant in tayl , &c. is taken tenant in tayl in possession ; and not tenant in tayl in use : for cestuy que use in tayl hath no right nor interest . and also here there is a tenure betwixt the donors and the donees , which is a consideration that the tenant in tayl shall be seized to his own use : and the same law of tenant for term of yeers , and tenant for life , their fealty is due ; and where a rent is reserved , there , though a use be ▪ expressed to the use of the donor , or lessor ; yet this is a consideration that the donee ▪ or lessee shall have it to his own use : and the same law where a man sells his land for . l. by indenture , and executes an estate to his own use ; this is a void limitation of the use : for the law by the consideration of money , makes the land to bee in the vendee . et opinio fuit , that a use was at common-law before the stat : of quia emptores terrarum , but uses were not common before the same stat : for upon every feofment before this stat : there was a tenure betwixt the feoffors and the feoffee ; which was consideration , that the feoffee shall be seized to his own use ; but after this stat : the feoffee shall hold de capitali domino , and there is no consideration betwixt the feoffor and the feoffee without mony paid , or other especiall matter declared , for which the feoffee shall be seized to his own use : for where the stat : of marlebr : is , that a feofment by the father , tenant in chivalry , made to his son by covin , shall not toll the lords ward , &c. in these cases the feoffor after such feofment takes the profits of the land all his life . and the same law by shelley of a feofment made by a woman to a man to marry her , the woman takes ●he profits after the esponsalls : quaere ●nde ; for this is an expresse consideration in it self . and by norwich , if a man deliver money to i : s : to buy land for him , and he buyes it for himself , & to his own use , this is to the use of the buyer , and to the use of him who delivered the mony ; and there is no other remedy but an action of deceipt , h : . b : feofments to uses . note , if a feofment be made to the use of w n , for term of his life , & after to the use of i : s : and his heirs , their cestuy que use in remainer or reversion , may sell the remain or reversion in the life of w n , but hee cannot make a feoffment till after his ●eath , h : . b : froffments to uses . 't is holden that if the feoffees seised to the use of an estate taile , or other use , are impleaded , and suffer the common recovery against them upon bargaine , this shall bind the feoffees and their heirs , and cestuy que use and his heirs , where the buyer and recoveror hath not conusance of the first use : and by fitz : it shall binde , though they had notice of the use ; for the feoffees have the feesimple : et per plures , if cestuy que use in tail● be vouched in a recovery , and so the recovery passes , it shall bind the tait● in use s : cestuy que use and his heirs ▪ and otherwise not ; and this b seem to be by the stat : which excepts tenant in taile , which is intended tenant i● taile in possession , and not cestuy que use in taile , for cestuy que use in tai●● is not tenant in taile , h : . b ▪ recovery in value , . feoffments to uses , . feoffees in use make a lease for yeers rendring rent , to another who hath notice of the first use , yet the lease shall be only to the use of the lessee himselfe : and the same law per plures though no rent be reserved : and if a man makes a feofment , and annexes a schedule to the deed conteyning the use , hee cannot change the use after ; and so if hee expresses the use in the deed of feofment , but otherwise where hee declares the use by words of his will s : i will that my feoffees shall bee seized to such a use , there he may change this use , because by will , &c. and that if a feofment be made to the use of the feoffor in tail , & after he execute an estate to him in ●ee , the use of the estate taile is determined , h : . b : feofments to uses , . if a : covenants with b : that when a : shall be enfeoffed , by b : of three acres of land in d : that then ●he said a and his heirs , and all others seized of the land of the said in s : shall be thereof seised to the use of the said b : and his heirs , there if a : makes a feofment of his land in s : and after b : enfeofs a : of the said three acres in d : there the feoffees of a : shall bee seised to the use of b : notwithstanding they had not notice of the use ; for the land is and was ●ound with the use aforesaid , to whose hands soever it shall come ; and 't is not like where a feoffe in use sells the land to one who had not notice of the first use ; for in this first case the use had not being till the feofment be made of the three acres , and then the use doth commence , h : b : feoffments to uses . 't was doubted if a recovery had against cestuy que use in taile , shall binde the heir in taile ; but by hales just : by such recovery the entry of the feoffees seised to the use of the estate taile is taken away , but after the death of cestuy que use who suffered the recovery ; the feoffees may have a writ of right , or writ of entry ad terminum qui preteriit in the post , or the like : and by some there is no use in taile , but 't is a fee-simple conditiona● at common law , as 't was of the taile before the stat : of w : . and this stat : makes no mention but of gifts in taile , which is taile in possession ; and therefore quaere , if the taile in use cannot be taken by the equity of it , ye● 't was doubted if the issues and the feoffees shall be bound after the death of cestuy que use , who suffered the recovery , by reason of those words in the stat : of r : . which will that the recovery shall bee good against the vendor and his heirs , clayming only as heir , and against all others clayming only to the use of the vendor and his heirs ; and this is intended , by some , of a fee simple ▪ and in the case aforesaid the issue in taile claymeth as heir in taile in use , ( b : feofments to uses , the middle ) yet see the stat : of h : . that 〈◊〉 fine with proclamation , levyed or to be levyed by tenant in taile in possession , reversion , remainer , or in use , after proclamation had , shall binde ●hose tenants of those tayles and their heirs for ever : and see that the same ●tat : is as well for the time past , ●s to come , h : . b. feofments to uses , . if covenants and agreements are ●onteined in indentures and not uses ; ●nd 't is covenanted by the indentures ●hat a : shall recover against b : his land in d : to the use of the recoveror ●nd his heirs , and to the uses of the covenants and agreements in the indentures ; there if he recovers , the re●overy shall be to the use of the recoveror and his heirs ; and not to the uses of the covenants and agreements in the indentures , where no uses are in the indentures . but otherwise , if uses are conteined in the indentures , ●nd 't is covenanted , that a : shall recover to the use of a : and his heirs , and to the uses in the indenture ; there the recovery shall goe according , and shall be executed by the stat : h : . b : feoffments to uses . 't was agreed by all the justices , upon great deliberation , in the case of mantel esq : of the county of north : who was attainted with the lord dacres of the south , for the death of a man ( which see tit : corone . ) that where he at his marriage h : . after the stat : of uses made , h : . covenanted , that for a . l. and in consideration of marriage , that hee and his heirs , and all persons seized of his lands and tenements in h : shall bee thereof seized to the use of his wife for term of her life , and after to the heirs of his body by her ingendred , that this shall change the use well enough , and very good : and by this the land was saved , and was not forforfeited , h : . b : feoffments to uses . the end . a man purchases land , and causes an estate to bee made to him and his wife , and to three others in fee , this shall bee taken to the use of the husband only ; and not to the use of the wife without speciall matter to induce it . and so see a woman may be seized to the use of her husband , and by him such feofment was , h : . and intended as aforesaid , h : . b : feoffments to uses . a man makes a feofment in fee to his use for term of life ; & that after his decease i n shall take the profits ; this makes a use in i n , contrary if he saies , that after his death his feoffees shall take the profits and deliver them to i n , this doth not make a use in i n : for he hath them not but by the hands of the feoffees , h : . b : feoffments to uses , . a man cannot sell land to i s , to the use of the vendor , nor let land to him rendring rent , habend : to the use of the lessor , for this is contrary to law and reason , for he hath recompence for it : and by hales , a man cannot change a use by a covenant which is executed before , as to covenant to bee seised to the use of w s , because that w s is his cosin ; or because that w s before gave to him twenty pound , except the twenty pound was given to have the same land. but otherwise of a consideration , present or future , for the same purpose , as for one hundred pounds paid for the the land tempore commentionis , or to bee paid at a future day , or for to marry his daughter , or the like , h : . b : feoffments to uses , . note , a recovery was suffered by graseley of the county of stafford , by advice of fitz serjeant and others , and he was only cestuy que use in tail , and after he died without issue , and his brother recovered the land in the chancery , for at this time 't was taken that a recovery against cestuy que use in taile , should not serve but for term of his life , by which 't is not but a grant of his estate , time h : . b : feoffments to uses . the end . by fitz just : if the feoffees to the use of an estate taile , sell the land to him that hath notice of the first use , yet the buyer shall not be seised to the first use , but to his own use , by reason of the bargaine and sale , for the feoffees have the fee simple , and therefore their sale is good , time h : . b : feoffments to uses . the middle . note , per plures , if a man makes a feofment in fee before the stat : of uses , or after this stat : to the use of w : and his heirs , till a : pay fourty pound to the said w , and then to the use of the said a , and his heirs , and after comes the stat : of uses and executes the estate in w , and after a paies to w the . l. there a is seised in fee , if he enters ; yet by some a shall not be seized in fee by the said payment , except that the feoffees enter : b doubts thereof , and therefore it seems to him best to enter in the name of the feoffees , and in his name , and then the one way or the other the entry shall be good , and shall make a to bee seised in fee ; and also see by b , that a man at this day may make a feoffment to a use , and that the use shall change from one to another by act ex post facto , by circumstance , as well as it should before the said statute , e : . b : feofments to uses . 't was holden per plures in the chancery ; if a recovery bee had , in which cestuy que use in taile is vouched , and the demandant recovers , then this shall bind the issue , time e : . b : feofments to uses . the end . if a covenant bee by indenture , that the sonne of a shall marry the daughter of c , for which c gives to a a hundred pound , and for this a covenants with c , that if the marriage takes not effect , that a and his heirs shall bee seised of a hundred and fiftie acres in d , to the use of c and his heirs , quo usque a his heirs or executors repaies the hundred pound , and after c hath issue within age and dies , and after the marriage takes not effect by which the state is executed in the heir of c , by the statute of uses made h : . notwithstanding that c was dead before the refusall of the marriage , for now the use and possession vests in the heirs of c , for that the indentures and covenants shall have relation to the making of the indentures , for these indentures binde the land with the use , which indentures were in the life of c : but by b : quaere if the heir of c shall bee in ward to the lord , for hee is heir , and yet a purchasor , as it seemes , m : . b : feofments to uses . . gift of land for yeeres , or of a lease for yeeres to a use , is good ; notwithstanding the statute ; for the statute is intended to avoide gifts of chattells to uses for to defraude creditors only , and so is the preamble and intent of this statute , m : . b : feofments to uses , . fines levies , fines levied . note , that 't was covenanted that a shall make to b his wife , daughter of i k , a joynture by fine , and the writ was brought by i k against a and b his wife , and they offered to acknowledg to i , to the intent that i should render to them , for life of b , and because b , the wife , was within age , therefore shee was drawne out and rejected : and then because that none can take the first estate by the fine , but those who shall be named in the writ of covenant ( but every stranger may take a remainder ) therefore the writ was made betweene i and a , only by which a acknowledged the tenements to bee the right of i , ut illa que , &c. and i granted and rendred it to the said a for terme of his life , without impeachment of waste , the remainder to the said b , his wife , for terme of her life , the remainder to the said a and his heirs , h : . b : fines , levies , . fine with proclamation to bind tenant in tail and his issue , the time for to make proclamation , &c. see tit : assurances . if cestuy que use for term of life levies a fine with proclamation ; there none need to enter nor make claim within the five years , because that 't is but a grant of his estate , which is lawfull , and no forfeiture ; for hee hath nothing in the land ; nor hee cannot make a forfeiture of the use . the same law of a fine levyed by tenant for life in possession : yet b doubts thereof and thinks otherwise if hee levy it in fee ( b : feoffments to uses . fines levies . ) et per plures , if it be levyed by cestuy que use in tail , it shall bind him and his heirs ; but not cestuy que use in the reversion nor the feoffees after the death of the conusor , for the statute of r : . is , that it shall bind him and his heirs and feoffees clayming onely to the same , which is not so here , quaere inde ; for b seems by the same statute , that tayl in possession is remedied by this statute ; but not tayl in use : for this seems to him to remain at common-law , as a fee-simple in use conditionall ; for 't is not a gift of the land ; yet quaere , for by him , by the equity of the statute of w : . of tayles , devises in tayl are taken ; yet this is in nature of a gift ; yet not at this day by the statute of h : . fine with proclamation by cestuy que use in tayl , shall bind the tayl after proclamation , h : . b : fines levyed . the end . note , that a deed inrolled in london , binds as a fine at common-law ( but not as a fine with proclamation ; ) and there need not livery of seisin upon such deed : and this is a discontinuance without livery , because that by the custome there ( which is reserved by divers parliaments ) it shall bind as a fine , h : . b : fines levies . 't was granted for law , where two are of the same name ( as if there bee two r b ) and the one levies a fine of the others land ; there the other shall avoid it by plea , s : to say that there are two of the name ; and that the other r blevied the fine , and not this r b , h : . b : fines levies . the end . note that if the writ of dedimus potestatem , to levie a fine doth not beare teste after the writ of covenant , 't is error ; for the dedimus potestatem saies , cum breve nostrum de conventione pendet betwixt a b and c d , &c. h : . b : pines , levies , . note , that 't was devised to have a lease for yeeres to binde tenant in taile , that the tenant in taile and the lessee should acknowledge the tenements to bee the right of one a , a stranger , and that a should grant and render by the same fine to the lessee for sixtie yeeres , the remainder to the lessor and his heirs , and 't was with proclamation , which shall binde the taile after proclamation made ( and so see that the devise after will not serve for taile , but for fee simple , for hee which takes by fine , shall not bee concluded if hee bee an infant , or feme covert , or the issue in tail of the conusor : ) and in this case no rent can bee reserved ; for a was a stranger to the land , by which the lessee granted ten pound of rent , and extra terra : illa : with a clause of distresse during the yeeres or terme aforesaid to the lessor , h : . b. fines , levies , . lease may be made by fine for term of yeeres rendring rent , and first the lessee to acknowledg the tenements to be the right of the lessor come ceo , &c. and then the other grant and render to him for terme of sixtie yeeres , rendring therefore yeerely ten pound per annum , &c. and with clause of distresse , time , h : . b : fines , levies , . note , by fitz just : that a fine levyed by a and b his wife , where the name of the wife is m , shall binde her by estoppell , and the tenant may plead that shee by the name of b : levyed the fine , and so 't was in ure by him , and 't was pleaded according , time h : . b : fines , levies , . note , by bromeley chiefe justice , and others , that a writ of error was brought in the kings bench , because a fine was acknowledged by dedimus potestatem , before one who was not a judge , abbot , knight nor sargeant : and for this cause 't is refused to admit any which is taken by such ; for the statute de finibus & attorn : gives power to none except to justices , abbot and knight ; quaere , by b : if a sarjeant at law , bee not taken as a justice by the equitie of the statute , time h : . b : fines , levies , . 't was granted that a fine may be levyed in a hamlet ; for if a scire fac : lyes upon a fine in a hamlet ( as it appears e : . that it doth ) therefore a fine is well levyed there , e : . b : fines levies . note , that 't was agreed by the justices , that a fine may be well levyed in a hamlet , and this , notwithstanding all the houses are decayed but one . the same of a writ of dower : and the same law of that which hath been a ville and no wis decaid ; yet the name of the ville remains , as old salisbury , which hath at this day burgesses of parliament , and the like , e : . b : fines levies . forcible entry . hee which hath been seized peaceably by three yeeres , may retaine with force : but if a disseizor hath continued possession three yeers peaceably , and after the disseisee re-enters ( as he may lawfully ) and after the disseisor re-enters , hee cannot deteine with force , because that the first disseisin is determined by the entry of the disseisee , and the disseisee by this remitted , and this entry is a new disseisin : but if a man hath beene seised by good and just title by three yeeres , and after is disseised by wrong , and after hee re-enters , hee may retaine with force ; for he is remitted ▪ and in by his first title , by which hee first continued peaceably by three yeeres , per quosdam : for it seemes to them , by the proviso in the end of the statute , that this is good lawe in the last case , and stands well with the statute ; yet by some this is not law , therefore quaere h : . b : forcible entry , . forfeiture of marriage . 't was said , if a man brings a writ of intrusion maritagio non satisfac : for the single value , and makes mention in the writ of tender of marriage to the heir , and that hee refused , &c. that the tender is not traversable , time h : . b : forfeiture of marriage . intrusion . in finibus . forfeiture de terre , &c. forfeiture of land , &c. what shall be a forfeiture of the estate of tenant for life , what not , see tit : entry congeable . richard fermor of l : was attainted in premunire , and his lands forfeited in fee in perpetuum , and not only for term of life : and so see 't is not only a forfeiture for life , as in an attaint ; for the one is by statute , the other by the common-law , h : , b : praemunire . the end , forfeiture . note , if a man bee attainted of treason by parliament ; by this his lands and goods are forfeited , without words of forfeiture of lands or goods in the act , h : . b : forfeiture . foundership cannot escheate , nor be forfeited by attaindor of felony or treason , see tit : escheate . note , by hales justice cleerly , that ● cleark convict , shall lose his goods , ● e : . b : forfeiture . formedon . 't is said that if the issue in taile bee ●arred by judgement , by reason of warranty and assets discended , and af●er hee aliens the assets , and hath issue ●nd dies , the issue of the issue shall not ●ave a formedon of the first land tay●ed ; but if such thing happens before ●ee bee barred by judgement , the issue of the issue shall have a formedon , time h : . b. formedon . note , if the feoffees are infeoffed ●o the use of the feoffor , for terme of ●ife , and after to the use of a in taile , before the statute of h : . of uses , and after the estates , in uses are ve●ted in possession by the same statute , and after the tenant for life dies , and ●he tenant in tayle enters , and discon●inues and dies , and the issue brings a formedon , upon this matter hee shall ●uppose the feoffor to be donor , and ●ot the feoffees , and the writ shall ●ee generall quod dedit , &c. but the declaration shall bee speciall and declare the whole matter , that the feoffor was seised in fee , and enfeoffed th● feoffees to uses ut supra , and shew the execution of the estates by th● statute of uses made h : . briefly and not at large , and the seisin &c. and the death of tenant for life and tenant in taile & quod post mortem , &c. discend : jus , &c. e : . b : formedon , . formedon upon a gift in fee to th● use of the feoffor and the heirs of hi● body , which is executed by the statute of uses h : . and after th● feoffor aliens and dies , his issue shal● have a formedon that the feoffees 〈◊〉 derunt tenement : predict : to the father of the demandant , & discend● jus , &c. for it cannot bee suppose● that the feoffor gave to cestuy que us● which was himselfe ; for a man cannot give to himselfe : and hee sha● make a speciall declaration upon th● feoffment to the use of the taile : but where a makes a feoffment in fee , to three , to the use of a stranger and the heirs of his body , which is exempte● by the statute aforesaid , and after who was cestuy que use aliens in fee● and dyes ; there his issue shall have a formedon , and shall say that the feoffor gave to his father , and not the feoffees gave , and shall make a speciall declaration , e : . b. formedon . generall briefe . note by bromeley chief justice , that the demandant ( in the case e : . before ) may declare generallly if he will ; and if the tenant pleads ne dona pas , the demandant may reply and shew the speciall matter , as appears there , and conclude , & so he gave , &c. and good , m : . b : formedon . the end . forme . note , that wood was put before pasture in a plaint of assize , and exception thereof taken , and yet good , though it be contrary to the register , time : e : . b : faux latin & forme . franke-marriage . note , that 't was said for law , that land cannot bee given in frank-marriage with a man who is cosin to the donor ; but it ought to be with a woman who is cosin to the donor . time : h : . b. frank-marrige . note , 't is said for law , that a gift in frank-marriage , the remainder to i n in fee , is not frank-marriage ; for warranty and acquittall is incident to frank-marriage , by reason of the reversion in the donor , which cannot be where the donor puts the remainder and fee to a stranger upon the same gift , time. h : . b : frank-marriage . garde , warde . if the kings tenant , alien in fee , without licence , and dyes , his heire within age , the king shall not have the ward , because that nothing is discended to him ; and that the alienation is good , save the trespass to the king , which is but a fine by seisure : h. . b : alienations . garde . if the king hath an heir in ward , which is a woman , and marries her before the age of fourteen years ; there she shall be out of ward at fourteen years , and then may sue livery , for the two years to make sixteen years are not given , but to tender to her marriage , therefore when shee is married sooner , shee shall be out of custody at fourteen years , . h. . b. garde . livery . a man makes a feoffment before the statute of execution of uses , to the use of himself for term of his life , the remainder to w. in taile , the remainder to the right heires of the feoffor , the feoffor dyes , and w. dyes without issue , the right heir of the feoffor within age , he shall be in ward for the fee discended ; for the use of the fee-simple , was never out of the feoffor . and the same law where a man gives in taile , the remainder to the right heires of the donor , the fee is not out of him . otherwise , where a man makes a feoffment in fee upon condition to re-infeoffe him , and the feoffee gives to the feoffor for life , the remainder over in taile , the remainder to the right heirs of the feoffor , for there the fee , and the use of it was out of the feoffor ; & therefore he hath there a remainder and not a reversion , . h. . b. garde . where a man holds certain land of the king in soccage in capite , the king shall not have livery of more then the soccage land . the same where he holds of the king in knights service , and not in capite , the king shall not have more in ward , but onely that which is holden of him immediately , . h. . b. garde . note by all the justices of england , that a lord in knights service , by nonage of the heir , shall not ouste the grantee of wreck , or de proxima presentatione ; nor the termors which are in by the father of the heirs b , grants . . garde . lease . in finibus : so of a lease for term of life . . h. . b. garde : the end : a man dyes seised of lands holden in knights service , his brother and heir within age , the lords seises the ward , the wife of the tenant privily with childe with a son , and after the wife is delivered , the brother is out of ward . but if the infant dye , the brother yet within age , there the brother shall be in ward again . and the same law where a daughter is heire , and after a son is born , the daughter is out of ward : and if the son dies without issue , the daughter within age , she shall be in ward again ; so see that one and the same person may be twice in ward by two several ancestors . but where the lord seises the son for ward for land to him descended from his father , and grants the marriage of him to another , and after other land holden in knights service , holden of the same lord descends to the same son from his mother , there b. seems that the lord shall not have the ward again , because he had him , and granted his marriage before , and the body is an intire thing ▪ . h. . b. garde . 't is granted by all the justices that the king shal not ouste the termor of his tenant , because he hath the heir of his tenant in ward by office found for him ; nor execution upon a statute merchant made against his tenant ; nor a rent charge granted by his tenant , nor a grant de prox . presentatione of an advouson . time h. . b. garde . if the son and heire of the kings tenant , or of another lord be made a knight in the life of his father , and after the father dies , the heir shall be in ward ; for otherwise the ancestor may procure his son within age to be made a knight by collusion , to the intent to defraud the lord of ward , which shal not be suffered . and so it fell out of the lord anth. brown of surrey , who was made knight in the time of his father , who died , the son within age , and t was holden he should be in ward , notwithstanding he was a knight ; wherefore he agreed with the king for his marriage : otherwise b. seemes where hee is in ward , and is made knight in ward , this shall put him out of ward , and by him the stat. which is , postquam haeres fuerit in custodiam cum ad aetatem pervenerit s. , annorum , habeat hereditat . suam sine relevio , & sine fine : ita tamen quod si ipse , dum infra aetatem fuerit , fiat miles , nihilominus terra sua remaneat in custodia dominorum usque ad terminum supradict . is intended where he is made knight within age being in ward after the death of the ancestor , and not where he is made knight in the life of the ancestor . . e. . b. garde . & . 't was agreed for law in the common bench , that if the lord hath not been seized of homage within time of memory ; but hath been seised of rent , it suffices to have a writ of ward , and to count that he died in his homage ; for there is seisin of something , though it bee not of the intire services : and for this cause , and also for that the seizin is not traversable , but the tenure ; therefore the action lies without seisin of the homage , . e. . b. garde . the end . t was holden by the justices of both benches , that where a man holds by rent and knights service , and the lord and his ancestors have been alwaies seised of the rent , but not of the homage , escuage , nor of ward : yet if a ward fall , he shall have the ward of the heir , for the seisin of the rent suffices to be seised of the tenure , as to this purpose . yet otherwise b. seems to make avowry , . e. . b. avowry . the end . garde . where a use vests in the heir , as heir of his father , where the father was dead before ? whether the heir shall be in ward , or not : quaere , see tit. feoffments to uses . . m. . note that t was declared by the doctors of the civil law , that where an heir or other is married infra annos nubiles , and after disassents at the age of discretion , or after , before assent to the marriage , that this suffices : and the party may marry to another without divorce , or witnessing of it before the ordinary : but the ordinary may punish it per arbitrium judicis ; but the second espousals is good , as wel by the law of the kingdom , as by the law of the church , . m. . b. garde . ward and marriage is by the common law : and the father shall have the ward of his son or daughter , and heir apparent , before the king or other lord ; and soccage tenure by years , and knight service after , b. garde . the end . if an estate be made to many and the heirs of one of them , and he which hath the fee dies , his heir within age , he shall be in ward by the statute of wills , notwithstanding the others survive which are tenants by the common law , casus b. garde . . garranties , warranties . if the husband & wife alien land of which she is dowable , there to have collateral warranty , t is good to have the warranty of the wife against her and her heirs ; and then if she hath issue by the husband , and she and the husband die , the warranty shall be collateral to the issues , because that the land came by the father , and not by the mother , . h. . b. garranties . note if the husband discontinues the right of his wife , and an ancestor collaterall of the wife releases with warranty and dies , to whom the wife is heir , and after the husband dies , the wife shall be barred in a cui in vita by this warranty , notwithstanding the coverture ; because that she is put to her action by the discontinuance ; for coverture cannot avoid warranty , but where the entry of the wife is lawful , which is not upon discontinuance . . h. . b. garranties . if a man saies in his warranty , et ego tenement a predict . cum pertinent . prefato a. b. the donee warrantizabo , aud doth not say , eg● & heredes mei , he himselfe shall warrant it , but his heir is not bound to warrant it ; because that ( heirs ) are not expressed in the warranty , . h. . b. garrenties . sir robert brudnel , late chief justice of the common bench , devised a warranty now in use , viz. that the warrantor for him and his heirs warrantizabit contra ipsum & heredes suos , and by this the feoffee shall rebut , but not vouch , casus b. garranties . the end . where upon a formedon upon use , there shall be a general writ , and special declaration ? see tit. formedon . general issue . in an assise or trespass , if a ●an entitles a stranger , and justifies by his commandment , his ought to be pleaded ; and not given in evidence upon nul tort . or not guilty pleaded . so of common rent service , rent charge , licence , and the like , these ought to be pleaded and not given in evidence upon a general issue . contrary of a lease of land for years upon not guilty pleaded , the defendant may give it in evidence ( b. general issue , . ) otherwise of a lease at will ; for this is as a licence , which may be countermanded , or determined at pleasure . and if a villen plead free , and of free estate he may give manumission in evidence ; for this is manumission indeed . but where he is manumitted by act in law , as a suit taken against him by his lord ; or an obligation made to him by his lord , or a lease for years , and the like , which are manumissions in law , of which the jury cannot discuss , and therefore these shall be pleaded , h. . b. general issue ● . debt upon an escape in the exchequer against the sheriffs of london , for leting a man arrested by them by capias ad satisfaciendam , and ●n execution to escape : the defendants cannot say that he did not escape , and give in evidence that he was not arrested for the arrest is confessed , if he saies that he did not escape , . h. . b. general issue . grants . nota per plures just. & alios legis peritos , that where a man grants an office of bayliff , steward , receiver , parker , and the like ; and a fee certain for his labour onely , there the grantor may expulse such officers . but they shall have their fee , for t is but an office of charge . but where the steward , & parker have profits of courts , winde-falls , dear●kinnes , and the like casu●ll profits , t is said that they cannot be expulsed , and that of such offices they may have an assise . and t is said that t was so taken in the time of james hobert attorney of king henry the . and the officers may relinquish their offices when they will , but then their fee ceases . and whorewood attorney of king henry the . granted the cases aforesaid , . h. . b. grants , . t was said for law , that i may ouste my bayliff , receiver , and the like , giving to them their fee ; fo● it rests in charge , and no profit . b. doubts of the steward , for an assise lies of such ousters , . h. . b. grants . the end . what shall pass by a grant of omnia ●ona sua . see tit. done. a man possessed of a lease for term of fourty yeers , grants so many of them to ● . n. which shall be arrear tempore mor●is suae , and held void by hales just ▪ and others , for the incertainty , because it doth not appear how many shall be behinde at the time of his death : for the granter may live all the yeers , and then nothing shall be arrear at his death , quare . ( b. grants . leases . ) ●ut such devise by testament is good , ( b. grants . ) and 't is not like where a man leases land for term of life , and four yeers over : this is certain , that his executors shall have four yeers after his death . ( b. leases . ) and also , if a man leases his land to have from his death for four yeers , 't is good : for this is certain ; and he hath authority to charge his own land. e. . b. grants . a man grants omnia terras & tenementa sua in d. a lease for yeers shall not pass . contrary , if he grants omnes firmas suas , there by this a lease shall pass : for of this an ejectione firme lies , and by this he shall recover the term ; and therefore 't is a good word of grant. e. . b. grants . hariots . t is said that for hariot-custom a man shall always seise ; and if it be esloigned , he may have detinue ▪ and for hariot-service esloigned , he may distrain● but not for hariot-custom . time. h. ▪ b. hariots . . the end . heresie . note , that 't was agreed by all the justices , and by bake , learned in the law and chancellor of the exchequer ; and by h●re , learned in the law , and maste● of the rolls , that by the statute of hereticks and lollards , that if a heretick be convicted in presence of the sheriff , th● ordinary may commit him to the sam● sheriff ; and he ought to burn him , without having a writ de haeretico comburendo . but if the sheriff be absent , o● if the heretick shall be burnt in another county in which he is not convicted , ther● in these cases the writ de haeret . comburend . shall be awarded to that sheriff 〈◊〉 officer who shall make execution . and ●e said statute in the end wills , that the ●heriff shall be present at the convicti●● , if the bishop requires him . and ●erefore the use is that the ordinary shall ●ll the sheriff to be present at the con●tion . and so in the writ de haeret . ●mburend . in the nat. brin . that the ●●chbishop and his province in their con●●ation might and used to convict here●●ks by the common law , and to put 〈◊〉 to lay hands : and then the sheriffs writ de haeret ▪ comburend ▪ burnt them . ●t because that this was troublesome , to 〈◊〉 the convocation of all the province , was ordained by the statute aforesaid , ●hat every bishop in his diocess may ●●nvict a heretick , and after abjura●●n upon relapse , put him to lay hands be burnt . and b. seems that if the ●●retick will not abjure at the first con●●tion , that he may be burnt at the first ●●●nviction without abjuration . other●●e , if he will abjure : for then he shall 〈◊〉 be burnt the first time , but upon re●●se he shall be burnt . . m. . b. ●eresie . homage . see tit. fealty . ideot . brent of the county of s●●merset , who was presen●●ed for an ideot , cou●● write letters and acqui●tances , and the like ; an● therefore was adjudge● an unthrift , but no ideot . time. e. ideot . the end . imprisonment . 't was determined in parliament , th● imprisonment almost in all cases is but retain the offender till he hath made fine ; and therefore if he offers his fi●● he ought to be delivered presently ; 〈◊〉 the king cannot retain him in prison af●●● the fine tendered . m. . b. imp●●sonment the end . incident . court-baron is incident to a man●● and court of pipowders to a fayr ; a● 't was sed arguendo , that therefore lord of the mannor or fayr cannot gr●● over the court-baron , nor the court pipowders : or if they grant the m●● ●●or with the fayr , they cannot reserve ●●ch courts , for they are incident , &c. h. . b. incidents . 't was said , that if a seigniory rests in ●omage , fealty , and rent , and a man ●●covers the rent ; by this is the homage ●●covered : for a precipe lies not of it . ●ime . h. . b. incidents . the ●●id . indictments . an indictment of death ought to com●rehend the day of the stroke , and day of 〈◊〉 death ; and the same law of poy●ning ; so that it may be known if he ●●ed of the same stroke or not . h. . ● . indictments . by fitz just. a justice of record may 〈◊〉 indicted of taking of money , and other ●●ch falsity , but not of that which goes in ●●lsifying or defeating of the record , as 〈◊〉 say that he altered the record from ●respass into felony , and the like , which ●●lsifies the record . casus b. indict●ent . the end . intrusion . tenant in tayl of lands holden of 〈◊〉 king , aliens without license , which found by office , the king shall have 〈◊〉 issues of the land à tempore inquisiti●●nis capt . and not before . ( b. alienat●ons , . in medio . ) but where the t●●nant dies , and his● heir enters , upon off●●● found for the king of the dying seised the ancestor ; there the heir shall answ●● the profits taken by him before . h. b. intrusion , . the end . note , where 't is found by office th● i. n. tenant of the king was seized , a● died seized , and that w. his heir intrude● and after by act of parliament the ki●● pardons all intrusions ; in this case the e●try and the offence is pardoned , but not 〈◊〉 issues and profits : for the escheat or sh●● be charged of this by way of accou●● whether he hath received them or not : 〈◊〉 when the office is of record , he ought receive them , except where 't is found the office that such a man took the pro●● thereof . but where the king pardo● where no office is found , the heir is ●●●charged as well of the issues and prof●● and also of livery as of intrusion , by r●●son of the pardon : for by this is p●●doned . and there though the office comes after which findes the intrusion of the heir , yet all is gone by the pardon ; and this shall serve , because all was pardoned before , to which the king was intitled of record , h. . b. charters de pardon , . intrusion . issues returns . office shall have relation to the death of the ancestor , as to land descended to the heir of the kings tenant and as to intrusion . ( b. relation . the end . ) otherwise , as to alienation made by the kings tenant without license : this shall not relate before the finding of it . ( b. relation . intrusion . ) and such entry by purchase is not called intrusion , but a trespass ; and so are the words of the pardon thereof , quod pardonamus transgression ' praedict . &c. . h. . b. intrusion . joyntenants . if a lease be made to three of land at common law , for term of life , or for yeers habendum successivè , yet this is a ●oynt estate , and they shall hold in joynture , and successivè is void : but where the custom of copie-holds is , that this word successive shall hold place , this is good there by the custom . h. . b. joyntenants . leases . if a man inf●offs two , upon condition that they shall infeoff w. n. before michael ' and the one dies , the other sole makes the feoffment ; this is good . the same law if two lease land rendring rent , and that if it bearrear by two months , and lawfully demanded by the said lessors , that they may re-enter , the one dies , and the other that survives demands it , and 't is not paid , he may re-enter . and the same law if the lease were made to two , with words that if it be arrear , and demanded of them two , &c. and the one dies , and the lessor demanded it of the other that survived , and he doth not pay , this is a good demand , and the lessor may re-enter . h. . b. joyntenants . journeys accounts . grantee of a next presentation brings a q. impedit , and dies after the six months past , and his executors bring another q. impedit by journeys accounts , and by the justices it will not lie . see tit. q. impedit . judgement . a man recovers by default against an ●●fants , and the infant brings a writ of ●●rour , and reverses it for his non-age . ●therwise , if he had appeared , and lost 〈◊〉 plea , or by voucher , he shall not re●●rse it for non-age . b. h. . saver de fault . if i have title by formedon , or cui vita , and enter , and the other recovers ●gainst me , i am remitted to my first acti●● : but if a man recovers against me by ●●lse title , by action tried , where i was by good title , i shall then have error , 〈◊〉 attaint , or a writ of right . h. . ● . judgement . assise in com. b. the tenant pleads in ●●ar a recovery by assise by him against 〈◊〉 plaintiff of the same tenements in ●om . o. and this now plaintiff then ●●nant pleaded in bar by release of the ●ncestor of the plaintiff with warran●● , which was void by non-age : and ●his found for the plaintiff ▪ by which he ●ecovered , against this plaintiff judgement si , where he accepts the land to be in the country of o. now he shall be received to say , that it lies in the county 〈◊〉 b. and 't was said in the common bench● that though this land were then put 〈◊〉 vjew , the plaintiff shall not be bound 〈◊〉 the recovery : for it cannot be intended one and the same land. h. . ● . judgement . assize of land in n. the defendan●● said that once before he brought an assiz● of the same land in h. against the sam● plaintiff , and these lands put in vjew ▪ and this now plaintiff then took the ●●nancie , and pleaded in bar , and said th● h. and n. are one and the same ville , an known by the one name and the other ▪ and that a. brought a formedon of th●● tenements , and pleaded certain , &c. an● recovered by action tried , and the esta●● of the plaintiff mean betwixt the title 〈◊〉 and his recovery , judgeme●● si of such an estate assize , &c. to wh●● the other said , that every of the said 〈◊〉 and n. were villes by themselves , and 〈◊〉 at issue : and 't was found that they we●● several villes , and the seisin and disseis●● by which 't was awarded that this tena●● then plaintiff should recover . and because that he hath recovered these sain● lands against the plaintiff himself in h. judgement si assise . and shelly just. held strongly , that this recovery of land in h. is no plea in an assise of land in n. and therefore the assise ought to be awarded : and so it seems to b. h. . b. judgement . if a. infeoffs b. upon condition &c. to re-enter , there if a man impleads b. who vouches a. and so recovers ; or if a. re-enters upon b. without cause , and ●s impleaded and loses ; there in the one case , and the other , the condition is determined : for the land is recovered against him who made the condition . h. . b. judgement . note , by bromley chief just. that a judgement , where there is no original , is void , ( as in an assise the plaintiff appears , and after makes a retraxit ; and after the justices of assize record an agreement betwixt them , in nature of a fine : this is void , and coram non judice , and shall not be executed , by reason that no original was pending , but was determined before by the retraxit . ) for without original they have not commission to hold plea ; and then they are not judges of this cause . m. . b. judgement . . issues joyns , issues joyned . trespass upon the case , quod def . assumpsit deliberat . quer . pannos laneos , and he pleads , quod assumpsit liberare pannos lineos , without that qd . assumpsit modo & forma , and so at issue . and 't is found that he assumed to deliver pannos laneos , sed non ( so see that this issue , though that it comes in a traverse , doth not amount but to the general issue ) the pl. recovered dammages , for the , and was barred and amercied for the rest . but otherwise 't is if the issue be ; if a. and b. infeoffed the tenant in a precipe quod reddat , necne , and 't is found that a. infeoffed him , but that a. and b. did not infeoff him , this is found against the tenant in toto , or against him who pleads such feoffment , which is so found , . h. . b. issues joyns . , verdict . informed in the excheq . against a. b. for buying wools betwixt shearing time and the assumption , such a year of c. d. contra forma statuti , where 't is not cloth , nor he did not make thereof cloth nor yarn ; he sees that he did not buy of c. d. contra formam statut. propt . &c. and no issue ▪ for 't is not material nor traversable whether he bought of c. d. or of e. f. or of another , but whether he bought them contra formam statut. necne . and therefore the issue shall be that he did not buy modo & forma , &c. . h. . b. issues joyns . . negativa pregnans . . travers , per . in waste issue was taken if the defendant cut twenty oaks , there if the jury finde ten and not the rest , the plaintiff shall recover for the ten , and shall be amercied for the rest . m. . b. issues joyns . the middle . issues returns ; issues returned . see tit. intrusion . jurisdiction . if the lord of a mannor claim the tythes of such lands in d. to finde a chaplain in d. and the parochians claim them also for the same purpose , 't is said for law , that the lay court shall have jurisdiction betwixt them , and not the spiritual court. h. . b. jurisdiction . 't was said where a man pleads a plea in banco ultra mare , it shall be condemned at this day , because that it cannot be tried in england . h. . b. jurisdiction . jurors . trial of a peer of the realm arraigned upon an indictment , and appeal diversity . see tit. trial , and tit. enquest . where jurors may take conusance and notice of a thing in another county . see tit. attaint . jury took a scroll of the plaintiff , which was not delivered to them in court , and passed for the plaintiff : and because that this matter appeared to the court by examination , therefore the plaintiff shall not have judgement . m. . b. jurors . leet . note , for law , if a pain be put upon a man in a leet for to redress a nusance by a day sub poena l. and after 't is presented that he did it not , and shall forfeit the pain ; this is a good presentment , and the pain shall not be otherwise affeered . and the lord shall have an action of debt clearly ; but he cannot distrain , and make avowry , except by prescription of usage to distrain and make avowry . h. . b. leet . note , where the statute of magna charta cap. . saith , et visus de fran●hi-plegio tunc fiat ad illum terminum , st. michaelis , sine occasione ; this is ●●tended the leet of the tourne of the sheriff , and not other leets . h. . b. leet the end . leases . by fitz-james ch . just. englefield●ust ●ust , and many others , if tenant for life ●ases land for yeers , rendring rent , and ●●es , the lease is void , and then the rent is ●etermined . the same law of a parson . ●nd though the successor receives the rent , ●he lease is not good against him : for ●hen 't is void by the death of the lessor , 〈◊〉 cannot be perfected by no acceptance . b. leases . debt . ) otherwise 〈◊〉 seems of a lease for life made by a par●●● rendring rent and the successor accepts 〈◊〉 rent , this affirms the lease for life . 〈◊〉 . . b. leases . a man leases for ten yeers , and the ne● day leases the same land to another fo● twenty yeers : this is a good lease for th● last ten yeers of the second lease . h. . b. leases . where a lease for or yee●● shall be mortm in . see tit. mortmain . a man leases a house cum pertin . ● land shall pass by these words cum per● contrary , if a man leases a house cu● omnibus terris eidem pertin . there 〈◊〉 lands to this used pass : and many gra●● are de omnibus terris in d. nuper m● nasterii de g. pertin . and especially● heavers that it hath pertained de tempor● &c. h. . b. leases . if a parson of a church leases for 〈◊〉 and dies , the successor accepts fealty ; 〈◊〉 shall be bound by this during his 〈◊〉 contra upon a lease for yeers made 〈◊〉 him ; this shall not binde the successor 〈◊〉 acceptance of the rent : for 't was void 〈◊〉 the death of the lessor . h. . 〈◊〉 dean . encumbent . leases ● ▪ where a confirmation shall be by 〈◊〉 bishop , dean and chapt , of a lease 〈◊〉 by the parson . et contra . see tit. c●●●firmation . a man is a purchaser with his wife 〈◊〉 them and to the heirs of the husband ; 〈◊〉 after the husband leases for years and ●dies , the wife enters , this shall avoid the lease for her life ; but if she dies during the term , there the rest of the term is good to the lessee against the heir of the husband . and the same law of a rent-charge granted out of it : for the husband had thee fee-simple tempore , &c. and might well charge it . and note by all the justices , that the guardjan in knights service shall not ouste the termor of the ancestor of the heir . and the same law of the lord by escheat . h. . b. leases . if a man leases for life to i. s. and the next day leases to w. d. for twenty yeers , the second lease is void , if it be not a grant of a reversion with attornment : for in law the free-hold is more worthy and perdurable then a lease for yeers . yet if the lessee for life dies within the term , the lease for yeers is good for the rest of the yeers to come . h. . b. leases . the end . 't was agreed per plures , that where i. n. convenit & concessit to w. s. that he shall have acres in d. for yeers , that this was a good lease : for this word concessit is as strong as dimisit vel l●●avit . h. . b. leases . king tenant in tayl makes a lease for yeers , or life , his issue may avoid it . see tit. discontinuance in possession . if a parson lets land for term of yeers rendring rent , and dies , the successor receives the rent , the lease is not good against him , for he hath not fee-simple . nor he cannot have a writ of right but juris utrum therefore the receipt of the rent by his successor , doth not affirm the lease ; for this was void by the death of the parson who leased . h. . b. leases . the end . 't was holden by bromley just. and others , that if a man leases for yeers , and the next day leases for yeers , the second lease shall take effect for yeers , s. after the twenty yeers past . time. h. . b. leases . the end . 't was agreed for law in the chancery by the justices , that if a lease for yeers be made by a bishop , that 't is not void , but voidable ; for he had a fee-simple . otherwise of such a lease by a parson ; this is void by his death : for he hath not the fee-simple , but 't is in abeyance . and the bishop may have a writ of right , or a writ of entry sine assensu capituli , where a parson shall have but a juris utrum . and therefore if the successor of a bishop , dean , prebend , and 〈◊〉 like , who have a fee and lease , and 〈◊〉 , accepts the rent , this affirms the lease 〈◊〉 be good . and otherwise of such ac●●ptance by the successor of a parson who ●ade such lease : for this lease is void ●resently . but if a chantry priest makes ● lease , his successor shall avoid it , not●ithstanding the predecessor had a fee , ●ecause that 't is donative , or presentative , ●nd then such lease is not perdurable , ex●ept it be confirmed by the patron in the 〈◊〉 case , and by the patron and ordina●y in the other case . e. . b. leases ● . the end . a man leases for yeers , habendum post ●imissionem in factā to i. n. finitā , and 〈◊〉 truth i. n. hath no lease in it , there the lease commences immediately , by hales●ust ●ust . and many others . and by him if ● prebend makes a lease for yeers by ●ndenture rendring the usual rent , this shall ●●inde the successor by the statute of lea●es : for where the statute saith , in jure ecclesiae , and the entry for a prebend est ●●isitus in jure prebende , yet it shal bind by the equity . e. . b. leases . an executor hath a term and purchases the reversion in fee , whether the term be extinct , or no. see tit. extinguishment . tenant of the king in capite dies , and the heir before livery sued , makes a lease for yeers , 't is good , if no intrusion be found by office , and an office found after , which findes the dying seized , and no intrusion , hath not relation to th● death of the ancestor , but for the profits , and not to defeat the lease : for th● free-hold and inheritance remain in th● heir . but if intrusion be found , tunc nu●●lum accrescit ei liberum tenementum ▪ and then the lease , and dower of th● wife of the heir , are void . e. . b. leases . a man possessed of a lease for yeer● grants so many of them as shall be behin● at his death , 't is void . see tit. grants . note , by bromley and others justice 〈◊〉 if i let land to w. n. habendum 〈◊〉 l. be paid , and without livery ; th● 't is but a lease at will for the incertaint● but if he makes livery , the lessee sh● have it for life upon condition implied 〈◊〉 cease upon the l. levied . m. . ● leases . 't is said that bishops in the time 〈◊〉 e. . were not sacred , and therefore we 〈◊〉 not bishops , and therefore a lease 〈◊〉 yeers by such , and confirmed by the 〈◊〉 and chapter , shall not binde the success●●● for such never were bishops . contra of a bishop deprived who was bishop indeed at the time of the demise , and confirmation made , m. . b. leases . what shall be said to be a lease in reversion , and what a grant of reversion ? see tit. attornment . 't was holden by all , if a man leases land to another till the lessee hath levy●d l , that 't is a good lease , notwithstanding the incertainty . m. . b. leases . the end . 't was ruled in the serjants case , that if a man let land ian. habend . for forty years , reddend , annuatim at mich. and easter . s. the tenant shall pay at easter and at mich. i. equales porciones , and the lessor shall not lose the rent at easter . . m. . b. leases . ley gager , law wager . detinue of a deed indented , where an obligation of a lease for term of years the defendant shall not wage his law , for this concerns land , and a chattel real . and so 't was late adjudged in the kings-bench . h. . b. ley gager . 't was said for law , that a man shall not wage his law in a quo minus . . h. . b. ley . quo minus . in finibus . licenses . 't was agreed , that if a bishop , de● and chapter give their land in fee with out license of the king , who is founder and is found so by office , the king shal● have the land. and another founde● may have a contra formam collationis and if he aliens sine assensu decani & capituli , then lies the writ de in● gressu sine assensu capituli . h. ▪ b. licenses . lieu , place . place is not material in actions transitory . see tit. attaint . where a recognizance is acknowledged in london before a justice of th● common bench , and certified in banco● and there ingrossed , a scire facias shal● be brought there directed to the sherif● of london , and not to the sheriff o● middlesex where the bench is , by all the prothonotaries of the common bench. m. . b. lieu . limitations . note , that it seems cleer , that the new limitation , and also the ancient limitation extends to copie-hold , as well as to free-hold : for the statute is , that he shall not make prescription , title , nor claim , &c. and those who claim by copie , make prescription , title , and claim , &c. and also the plaints are in natura & forma brevis domini regis ad communem legem , &c. and those writs which now are brought at common law , are ruled by the new limitation , and therefore the plaints of copie-hold shall be of the same nature and form . e. . b. limitations . livery . note , if the king hath a ward because of ward , and the first ward comes to full age , and sues livery , the other ward being within age , there the ward shall not sue livery , but ouster le maine ; for now the seigniory of his land is revived by the livery , so that he holds not of the king as afore , but of his immediate lord. but if the ward because of ward had been of full age before the first ward , he should sue livery● h. . b. livery . where a woman out of ward by marriage shall sue livery at fourteen yeers . see tit. garde . he which holds land within the county palatine of lancaster of the king in knight service ▪ ut de ducato lancastr . shall sue livery . contra of him who holds land which lies out of the county palatine of the king in knight-service ▪ &c. h. . b. livery . note , that general livery cannot be , but upon office found : but special livery may be without office , and without probation of age , but there he shall be bound to a rate and sum certain to be paid to the king. ( b. livery . ) and by b. ibidem . this cannot be claimed by the common law , as general livery may , but is at the will of the king. h. . if the king purchases a mannor of which i. s. held in knight service , the tenant shall hold as he held before , and he shall not render livery nor primer seisin : for he holds not in capite , but holds , ut de manerio : and if his heir be in ward by reason of that , he shall have an ouster le maine at full age . ●nd 't is said , if the king after grant the ●annor to w. n. in fee , excepting the ●●rvices of i. s. now i. s. holds of the king , ●sof the person of the king , and yet he ●●all not hold in capite , but shall hold 〈◊〉 he held before , for the act of the king ●hall not prejudice the tenant . but if the ●ing give land to me in fee , tenend . mi●i & heredibus meis of the king , & c. ●nd expresses no certain services , i shall ●old in capite , for 't is of the person of ●●e king. and note that tenure in ca●ite , is of the person of the king. h. ● . b. livery . tenures . extent of livery is the value of the ●and by half a year . but if he intrudes ●nd enters without livery , he shall pay the ●early value by experience of the ex●hequer . and where cestuy and use 〈◊〉 attainted of treason , and 't is enacted ●y parliamen , that he shall forfeit his ●and in possession , and in use , that ●here the king is but a purchaser , and ●herefore those who hold of him that was ●ttainted , shall not sue livery . quaere , ●f it be enacted that he shall forfeit it ●o the king , his heirs and successors . e●contra , if he had been sole seised , and ●ad been attainted by the common law , ●or there the king hath the land as king , and there those who held , & ● shall sue livery . and yet the statute ● si quis temerit de nobis de aliqua 〈◊〉 chaeta , ut de honore wallingford ▪ bose● &c. non faciet aliud servivum qua● fecit preantea . and therefore this ● intended of a common escheat . and a● so some honours are in capite , as pa● of peverel , and others . h. . ● livery . the kings tenant leases for years an● dies , the heir shall sue livery notwith●standing the lease indures . and th● same where the father declares his wi● of the land for yeers and dies . h ▪ . b. livery . if a man holds of the king before th● statute of uses , and infeoffs others 〈◊〉 his for term of life , the rem ' over in tai● the rem ' to his right heirs , and dies , an● after the tenant in tail dies without issue● the heir of the feoffer shall sue livery for the fee simple was never out of him and therefore it descends to his heir , an● if he hath it by descent , he shall sue livery . and the same law and for the sam● reason , if at this day a man gives in tail● the rem ' to his right heirs . otherwise b. . seems where a man makes a feoffment in fee in possession , and dismisses ●●mself of all , and retakes for term of 〈◊〉 , the rem ' in tail , the rem ' to his ●●ght heirs , and dies , and after the te●ant in tail dies without issue , there the ●●eir , who is right heir is a purchaser . ●nd if the king seises , he shall sue ●ister le main , and shall not be com●elled to sue livery ; but if the tenant 〈◊〉 tail had dyed without issue in the life ●f tenant for life , and after the tenant ●or life dies , there his heir shall sue livery , for the fee simple was vested in the tenant ●or life , by extinguishment of the mean ●em ' and therefore the fee simple descends . and note , livery is that the king ●hall have the value of the land by half ● year . and ouster le main is a writ ●o ouste the king of the land without a●y profit given to the king , h. . b. livery . where a man holds certain land of the king in soccage in capite , the king shall ●ot have liberty of more then the soccage-land , h. . b. garde . he which holds of the king in knight service and not in capite , shall not sue livery , because he holds not in capite , and there when the heir comes to full age , he shall have an ouster le main , for none can enter upon the king. but if he be of full age at the time of the death of his ancestor , then he shall render relief to the king and goe quite , as if he had holden of a common person . contra , of tenure in capite . h. . b. livery . note , that the heir of him who holds of the king in capite in soccage shall not render primer seisin to the king for all his lands , but onely for those lands holden in soccage in capite . contrary of him who holds in knight service in capite , by the experience of the exchequer . and the heir which sues livery shall have in every county a several livery . and note that livery is where the heir hath been in ward , and comes to full age , he shall have livery extra manus regis . and primer seisin● is , where the heir is of full age at the time of the death of his ancestor , or where his tenant holds in soccage in capite , and dies , there the king shall have primer seisin of the land , which amounts to the like charge to the heir , as the livery is . ▪ h. . b. livery . note that a man cannot sue livery in the chancery for land in wales , nor in a county palatine by experience . time h. . b. livery . if the heir of cestuy que use be of full age at the time of the death of his ancestor , the king shall not have primer seisin , for 't is not given by the stat. but onely the ward of land and body . and if a will were declared by cestuy que use , which is not performed during the nonage of the heir , there the king shall not have the land , but the heir at full age , shall prove his age , and shall goe quite by experience in the exchequer . casus b. livery . the middle . mainprise . if a man be arrested in london , and finds sureties to the plaintiff there , and after is dismissed in banco by writ of priviledge , and after a procedendo comes in the same suit to the court of london , this shall not revive the first mainprise , or suretiship , for once dismissed , and always dismissed . and 't is said that after a man hath found mainprise to a bill in the kings bench , and after is at issue or demurrer , and after is awarded to replead , and to make a new declaration , the mainprise is by this discharged . contrary , where they manuceperunt usque ad finem pliti , and where the original remains . h. . b. mainprise . if a man be convicted of felony , and remains in prison , and after the king pardons him , there the justices of goal-delivery may bail him till the next sessions o● goal-delivery , so that he may then com● with his pardon , and plead it . e. . b ▪ mainprise . maintenance . note , by all , where tenant in tayl , o● for term of life , is impleaded , he in rem● or reversion , may maintain , and give of his proper money to maintain for safeguard of his interest : for 't was agreed that he who hath an interest in the land may maintain to save it . e. . b. maintenance . note , that upon the statute of buying titles , and to maintain that a man shal● not buy land , except the vendor hath been in possession , &c. by a yeer before , 't was agreed by mountague chief justice , and by all of serjeants inne in fleet-street , that if a man morgages his land , and redeems it , he may sell his land infra unum annum prox . &c. without danger of the state aforesaid : for so is the intendment of the statute : for the ancient statutes are , that none shall maintain ; and yet a ●an may maintain his cousin , and so of ●e like : for 't is not intended , but of un●wful maintenance ; and so of a preten●d title , and not of that which is clear ●itle . e. . b. maintenance . mannor . a man cannot make a mannor at this ●ay , notwithstanding that he gives land 〈◊〉 many severally in tayl , to hold of him 〈◊〉 services , and suit of his court : for he ●ay make a tenure , but not a court : for ● court cannot be but by continuance cu●● contrarium memoria hominum non ●●sist it . and 't is said for law , that if a ●annor be , and all the free-tenures es●eat to the lord , but one , or if he pur●hases all but one , there after this the mannor is extinct : for there cannot be a mannor , except there be a court-baron 〈◊〉 it . and a court-baron cannot be ●olden but before suitors , and not before 〈◊〉 suitor : therefore one free-holder ●●ely cannot make a mannor . h. . ● . comprise . mannor . misnosmer , misnamer . a statute was acknowledged by man in the name of i. s. de d. in co● e. butcher , and he was taken upon pr●cess , and said in avoydance of the statut● that he was always dwelling at s. a●● not at d. and was a husbandman , and n● a butcher ; and that i. s. of d. acknowledged the statute without this , that he the same person that acknowledged i● which plea was refused , for a great inconvenience that might fall upon it . h. b. misnosmer . the end . monstrans de faits , shewing of deeds . see that he which pleads a deed record , or which declares upon a deed record , it behoves him to shew it : oyer of those is always to be had by 〈◊〉 which is charged by it . regulae monstrans . oyer de recordes ● the end . mortdauncestor . by the best opinion in the comm●● bench , if two purchase jointly to them ● to the heires of one , and he which hath the fee dies , and after the other dies , the heir of the first shall not have a mortdauncestor ( and b. seems the reason to be , because the fee was not executed in possession , by reason of the survivor of the other , and t is in effect now but the discent of a reversion ) and the wife of him who had the fee , shall not have dower , and yet he might have forfeited the fee simple or given it by feoffement , but not by grant of the reversion . . e. . . and joyn the mise in a writ of right , for he in reversion , and the tenant for life may do it . quaere , if he may release it . . h. . b. mortdauncestor . . mortmain . lord and tenant , the tenant leases for life to i ▪ s. the remainder to an abbot and his successors , the lord need not to make claim , till the tenant for life be dead ; for if he will wave the remainder t is not mortmain . but of a grant of a reversion with attornment , t is otherwise . and if the tenant makes a feoffment in fee , to the use of a. for life , and after to the use of an abbot and his successors , there t is not mortmain , till the tenant for life in use dies , and he in remainder takes the profits . note that appropriation of an advowson without licence is mortmain . . h . b. mortmain . . if a man leases to an abbot and his successors , or to another religious person for a years , and so from a . years to a years , untill years be incurred , this is one lease , and such lease is mortmain by the words of the statute de religiosis . e ▪ ● s. colore termini , for the said statute is , quod nullus emeret , vel sub colore donationis aut termini , aut ratione alterius tituli ab aliquo reciperi , aut arte vel ingenio sibi appropriare presumat , &c. and the same law o● a lease for years , or the like , contrary , if a man leases for a years , or the like , and covenants that he or his heirs at the end of a years , will make another lease for another years , and so further , this is not mortmain , for t is but one lease for a years , and the rest is but a covenant , but in the first case , for that is for years at first in effect , and all by one and the same deed , ( b. mortmain . leases . ) and years is not mortmain . and also a lease for a years is not mortmain by b. for t is a usual term . . h. . b. mortmain . by br. if an alienation in mortmain be , and the alienee is disseised , and the disseisor dies seised , his heir is in by discent , yet the lord may enter within the year , for he hath but onely a title of entry , and cannot have an action . but otherwise of him who hath right of entry , and may have an action . . e. . b. mortmain . . the end . negativa preignans ; see tit. issues joyns . non-ability . vvhere , and in what case a●● alien is disabled from bringing of an action , what not ? see tit alien . non est factum . note , that in debt upon an obligation made for usury , and the defendant pleads this matter , he shall conclude , and so the obligation is void judgement si action , and shall not conclude non est factum . . e. . b. non es● factum . . the end . nonsuit . note , that the king cannot be non-suited ; yet b. seems that he who tam pro domino rege , quam pro seipso sequitur may be nonsuited . . h. . b. non-suit . . note , when the parties in an action have demurred in judgement , and have a day over , there at that day the plaintiff may be demanded , and may be ●onsuited , as well as at a day given after issue joyned . . h. . b. nonsuit . . nontenure . where a man is barred by a false verdict , and brings an attaint against the first tenant , nontenure is no plea , for he is privy ; contrary of a stranger , as where the tenant infeoffs a stranger after . . h. . b. nontenure . in an attaint non tenure is no plea ●or a privy to the first action : contra●or ●or a stranger to the first action ( b. nontenure . ) and t is said that t is ●o plea in an attaint , to say that the plaintiff in the attaint hath entered ●fter the last continuance . . h. . b. nontenure . nontenure is no plea in waste . see tit. waste . nosme . name . what shall be a good name of purchase . see tit. discent . note , if a dutchess , or other such state marries with a gentleman or an esquire , she by this shal lose her dignity and name by which she was called before as in the case of the lady powes , and dutches of suffolk , the one espoused r. haward , and the other s. the dutches , adrjan stokes ; and therefore writs were abated in their cases ; for by the book of heralds ; quando mulier nobilis nupserit ignobili , desinit esse nobilis . . m. . b. brief ; . nosme . . notice . the patron shall take notice of every voidance of an advowson , except resignation , and of this the ordinary shall give him notice . lecture frowick . b. notice . office devant , &c. office before , &c. note , by those of the exchequer ; where a man is attainted by parliament , and all his lands to be forfeited ; and doth not say that they shall be in the king without office , there they are not in seisure of the king without office , for non constat of record what lands they are . . h. . b office devant . if the king grant land for term of life , & after the patentee dies , yet the king cannot grant it over till the death be found by office , & this by reason of the stat. that a grant before office shall be void . . h. . b. office devant ● . if an office finde the death of the kings tenant , and that his heir is of full age , and doth not say when , there it shall be intended that he is of full age , tempore captionis inquisitionis , but that he was within age tempore mortis tenentis , and therefore it ought to be expressed certain when he was of full age . . h. . b. office devant . note , that t is an antient course in the exchequer , that if it be found by office that i ▪ s. was seised in fee and died , sed de quo vel de quibus tenementa tenentur , ignorant ; that a commission shall issue to enquire of it certainly , de quo &c. and if it be found that of w. n. then the party shall have ouster l'main of the king. but if an office be found , quod tenetur de rege , sed per que servitia ignoratur , this is good for the king , and it shall be intended to be holden in capite per servitium militare , for the best shall be taken for the king. but now in these cases , a melius in quirendum shall be awarded by the statute . h. . b. office devant . ▪ land was given by the king pro erectione collegii cardinalis eborum , and the colledg was not erected , and upon office found thereof , the king seised . time. h. . b. office. . the end . t was agreed by the justices , that the king is not intitled to the land of his ward without office , though he hath in it but a chattell , yet it comes ratione tenure , which is a seigniory and free hold in the king. . e. . b. office devant . . note , that of a chattell the king is in possession without office . and ●contra of land and of free hold , except of a term ; and sometimes he shall be in possession of inheritance without office ; yet the king shall not have the land of his ward without office , though he hath in it but a chattel ; for the ward comes by reason of the tenure , which is a seigniory and free hold in the king , and therefore a difference betwixt this , and a lease for years of a man outlawed : for if a man hath a term for years , or a ward , and is outlawed , this is in the king without office . lecture b. office devant . . officer . note , for law , if a man hath a fee of a lord , and after is made justice , this fee is not void by the law , but after the making of him justice , he is not to take any fee , but of the king ; and the same law of him who hath an office of steward , and after is made justice . et per plures where a man is a baily of a mannor by patent , and after is made steward of the same mannor by another patent , both patents are good ; for the suitors are judges , and not the baily . but per plures if a man be a forrester by patent , and after is made justice of the same forrest , the first patent is void . as where a parson is made a bishop , the parsonage is void , for he cannot be ordinary of himself , nor punish himself . and b accords that a man cannot be keeper of a forrest , and justice of the forrest , for the killing of the deer by the keeper , and the like , is a forfeiture of his office , which shall be adjudged by the justices of the forrest , and he cannot judge him ● self . but a man may be a steward of a forrest by patent , and justice of the same forrest by another patent , and both good , for both are judicial , and justices of the forrest may make a steward of the forrest . . h. . b. officer . . note , that the sheriff and escheator void their office by demise of the king , for they are made by patents , which are as a commission is , and therefore t is used at the demise of the king for to sue out new patents , as 't was this year . . m. . b. officer . . the end . obligation . if a. be bound to b : in . usum● . s. there i. s. may release the obligation , because that ( ad usum ) is expressed in the obligation . et econtra if this did not appear in the obligation . . h. . b. obligation . oyer of records , &c. see tit. monstrans de faits . oyer & terminer . t is said that if a commission of o●er and terminer expire or discontinue , ●hen the indictments and record shall ●e sent into the kings bench , and there they shall be finished ( see how tit. corone . ) . h. b. oyer & terminer . . the end . t was granted in the case of ben : smith upon the statute of . e : . cap : . of felony in one county , and accessary in another county ; that the justices of the kings bench are justices of oyer and terminer of felony , treasons , and the like , by the common law , and custom of the realm . . m. . b. oyer & terminer . . pain . t was adjudged in curia hospitii domini regis apud greenwich versus edmundum knivet militem , that he should be disinherited , imprisoned for ever , and his hands cut off , quia percussit quendam hominem ibidem , the king being there in his court. . h. . b. pain . the end : panell : t was agreed in the exchequer where 〈◊〉 jury is awarded de medietate lingue , where an alien is party , and the panel ●eturned , that the one of the denizens and the other of aliens shall be sworn , till they have denizens , and aliens sworn . the same law there , where the jury remains for default of jurors , there a tail shall be part of english , and part of aliens , and this if the party prayes it . but if he doth not pray it , b. seems t is error , except by the statute of jeofails it be holpen . . h. . and so by him where the panel is party , the party is not compellable to take the jury , except of the one , and of the other are sworn . . e. . b. panel . the end . parliament . if the king be intitled to the land of i. s. by forfeiture of treason , or felony , by act of parliament or office , by this all tenures are determined , as well of the king , as of all others . and there , if this land after be given to another , by another act of parliament saving to all others all their rights , interests , titles , rent-service , and the like , as if no such act had been , there the seigniories and the like shall not be revived , for no seigniorie was in esse at the time of the second act made . and here are not words of gift , nor reviving , but words of saving , which serves not but to save that which in esse at the time of the saving , &c. but such proviso in the first act would serve ; for this comes with the act which intitles the king. and where the king is intitled to land by office for escheat , and after t is enacted by parliament that the king shall enjoy it , saving to all others their seigniories , and the like , there such saving will not serve ( for the reason aforesaid ) for all was extinct before by the office , and nothing was in esse at the time of the saving ( which was in ure between the king and keckwich in the county of essex , where r. lost his seigniory ) but there ought to be words affirmative , that the lords shall have their seigniories . . h. . b. parliament . note by englefield justice , in the case between button and savage , that where a man hath title to land by a tail , and after the same land is given to him by parliament , that his heirs shall not be remitted ; for by the act of parliament all other titles are excluded for ever ; for this is a judgement of the parliament : and where the land is gi●en expresly to any person by name , by act of parliament , he , nor his heirs shall not have other estate then is gi●en by the act , but that that onely ●hall stand . ( b. parliament . remitter ● . the end . ) and the same law where ●he king had title in tail , and the ●and is given to him by parliament in ●ee , the tail is determined . so that ●●e heir shall not avoid leases made 〈◊〉 his father , nor charges , and the 〈◊〉 ; for the last statute bindes all for●er titles and estates not excepted . ● . h. . b. parliament . . if divers sessions are in one and the 〈…〉 parliament , and the signes not a 〈◊〉 till at last , there all is but one and 〈◊〉 same day , and all shall have relati●● to the first day of the first sessions , 〈◊〉 the first day and the last , all is but 〈◊〉 and the same parliament , and one 〈◊〉 the same day in law , except special ●●ntion be made in the act when it ●ll take force . but every sessions in which the king signes the bills , is a da● by it self , and a parliament by it self and shall not have other relation but to the same sessions . . h. . b. parlia●ment . relation . note , if a man in an action , or pleading alledges a statute , and mis-recite it in matter , or in year , day , or place the other may demurr generally , fo● there is no such statute , and then ther● is no such law , for every one that med●dles with it , ought to shew the la● truely . but in case of the king it ma● be amended , and this in another term contrary for a common person . . h ▪ . b. parliament . memorandum , that at the parli●●ment holden by adjournment h. th● year , t was admitted by the kings 〈◊〉 and so accepted , that if one burgess 〈◊〉 made major of a town which hath j●●●dicial jurisdiction , and another is 〈◊〉 that these are sufficient causes to ele● new ones , wherefore they did so 〈◊〉 the kings writ out of the chancer comprising this matter , which was a●●mitted and accepted in the commo● house of parliament . . h. . b. par●●●ament . . parnour , taker of the profits . an office is found after the death cestuy que use that he died seised , and the heir is in ward of the king , and after a recovery is had against the heir during the possession of the king as against the pernour of the profits , before the statute of uses . h. . the feoffees traverse the office , or sue an ouster l'main , this recovery shall binde the heir , but the recoverer cannot enter during the possession of the king. . h. . b. pernour : a man cannot aver another pernour of the profits of other things , which are not in demand . b pernour . the middle . patents . the king gives land to i ▪ s. et heredibus masculis suis , the grant is void . see tit estates . if the king licences his tenant to alien his mannor of d : and he aliens it except one acre , the licence shall not serve it , for the king is not assertained of his tenant of all . and if i have a licence to impark acres , and do it according , and after increase by other acres , there this is not a park . . h. . b. patents . . if the king grants omnia terras & tenementa sua in d. this is a good grant these general words . . h. : b. patents . the king gave to the earl of rutland in tail , and after intended to give to him in fee simple , and to extinct the tail , and t was doubted that the surrender of the letters . patents of the tail , and the cancelling of them , and of the inrollment and bill assigned , will not extinct the tail , for the tail executed may be averred without shewing the patent . and a formedon lies after the tail executep , without shewing the patent . and t was taken that t was not a good surety for the king , for his services to give the reversion , to to hold the reversion by such services when it vests , and to except the first services during the tail , for when the reversion is gone , the rent and services reserved upon the tail , are gone as wel in case of the king , as a common person . and therefore the devise was , that the king by a new patent , reciting the first patent , shall give the reversion , and the first rent and services to have in fee , to hold by such services , and rendring such rent , and by this the king shall have the new tenur presently , and the grantee shal not be charged with double services and rents during the tail , and t was agreed for law , that if a man loses his letters patents , he shall have a constat of the letters , patents out of the inrolment , and bill assigned , which remains in the chancery : and therefore b. seems that the inrolment shall not be cancelled ( b. patents ) and t was agreed by whorewood the kings attorney , & optimos legis peritos , that if tenant in tail of the gift of the king surrenders his letters patents , this shal not extinct the tail , for the inrolment remains of record , out of which the issue in tail may have a constat , and recover the land , wherefore they made the devise aforesaid , viz ▪ that the king shall grant to the said earl tenant in tail the fee simple also , and then a recovery against him will barr the tail. otherwise the reversion being in the king ( b. surrenders . ) and t is said for law , if the king gives in fee , or in tail , or for life , the patentee leases for years , or grants , leases , or gives part of the land or of the interest to another , and after surrenders his patent , by which t is cancelled , this shall not prejudice the third person , that he shall lose his interest by it : for he may have a constat out of the enrolment which shall serve him . quaere inde , because a statute is made of it . and quaere if the common law shall not serve : for it appears in the book of entries fo . that a man pleaded a constat , . h. . b. pattents . the end . surrender . what thing in action the king may grant , what not ? see tit. choise in action . if the king grant a balywick , or sheriffwick to i. s. absque compotoreddend . the word absque compot . is worth nothing : for t is contrary to the nature of the thing granted , . h. . b. pattents . if conusance of plea be granted by the king , he ought to shew where ; as in guild-hall , or the like ; and before whom , as before his steward , &c. and the king may grant toll , fair , market , and the like : but not to have assise of fresh force , nor toll traverse , nor through toll , nor that the land shall be devisable , borrough-english gavelkinde , nor the like : for these are by custom , which cannot commence at this day by grant : for the king cannot make a law by his grant : and that by grant of conusance of pleas , he shall not hold plea of an assise , nor of a certificate of assise . and t is said for law , that a false consideration in letters patents shal not avoid them : as where the king for ten pound to him paid , gave such land , and the ten pound is not paid , the patent is not void , shall not be repealed : contrary of a patent granted upon a false surmise : as to falsifie that the land came to the king by attainder of i. s. which is not true , or the like . quaere , the diversity , . h. . b. patents . where the king , tenant in tail , cannot discontinue , or charge by grant , by patent , see tit. discontinuance de possession . note , that t was agreed , that where the king grants land which is in lease for tearm of years , of one who was attainted , or of an abby , and the like , that the grant is good without recital of the lease of him who was attainted , or of the abby : for he shall not recite any lease but leases of record , time h. . b. patents . t was granted in the case of thomas inglefield , knight , where the king receits , quod oum a. b. tenet manerium de b. protermino vitae suae de concessione nostra , &c. sciatis nos concessisse c. s. reversionem manerii predict , &c. habendum , &c. that this is a good grant. therefor b. seems that if the king mis-recites the date of the first letters patents , or the like , yet if he well recites the estate and the thing , and the name of the lessee , that then the grant of the reversion is good . for where the king takes notice of his tenant for term of life , and of his estate , and grants the reversion , he is not deceived in his grant , for he takes upon him notice of the former interest for life , and then the date of the first patent is not material . time h. . b. patents . by mervin justice , a constat is pleadable ; contrary of an inspeximus , for in the one case the patent remains , and in the other t is lost , and by b. in the book of entries a constat was pleaded , and aid granted of the king upon it . . e. . b. patents . the end . peace . a man is bound to the peace , and procures another to break , the peace , this is a forfeiture of his bond , as t was said time. h. . b. peace . peremptorie . a man recovers debt or damages and after brings thereof a scire fac ' the first return of nihil against the defendant is peremptory , if he makes default . . h. . b. peremptorie . . where a man brings an action real or mixt , or makes an avowry or conusans , and issue is taken upon the seisin infra tempus statuti , and t is found against the demandant , plaintiff , or avowant , this is peremptory by the same statute . . m. . b. peremptorie . . petition . t is held for law , if the king be intitled by double matter of record , as t is enacted by parliament , that i. s. shal be attainted of treason , or felony , and shall forfeit all his lands , and also an office is found thereof , there the party who hath right , cannot traverse , but is put to petition . and the same law if the king grant it over after the double matter of record found . . h. . b. petition . , trovers de office . note , that petition was at common law , but traverse is by statute , lecture b. petition . travers de office . see tit. travers de office. pledges . a man gages his goods in pledge for l. borrowed , and after the debtor is convicted in l. in debt to another , these goods shall not be taken in execution till the l. be paid : for the creditor hath an interest in them : and also goods taken for distress , cannot be taken in execution , . h. . b. pledges . pleadings . note that it is said for law , that he which pleads a recovery by default , ought to aver his title of his writ . and also that the defendant in the recovery was tenant of the free-hold die brevis : but if the recovery were by action tried , he needs not to take the one averment or the other . yet t was said , that in a quod ei deforce at he that pleads the recovery by defalt , need not aver the party tenant of the freehold tempore brevis sui , for t is proved that he was tenant tempore , &c. by the use of the quod ei deforceat , for this is the effect of this action ; because that the demandant in this action , lost by default in the first action : yet he shall aver the title of his writ . and he which pleads a recovery in a writ of waste by default , needs not to aver the party tenant ; for non tenure in this action is no plea. . h. . b. pleadings . he which pleads an entry for to defeat a collateral warranty , ought to aver that he entred in the life of the ancestor . and in dower if the tenant pleads a disseism by the husband , and the wife pleads a feoffment by i. n. to the husband , who after infeoffed the tenant , and after disseised him , she shal say that the feoffment of i. and the seisin of the husband , were during the coverture ; and he which derives an interest by lease from tenant for life , or in tail , ought to aver the life of the tenant for life , or in tail , . h. . b. pleadings . where a man ought to aver , that the one and the other are one , and not divers , see tit. averments . where a stranger to a deed may plead it , where not ? see tit. estranger . note , for law , that t is good pleading to say , that i. n. and w. n. were seised in dominico pro ut de feodo ad usum t. p. and his heirs , without shewing the commencement of the use● as to say , that a. was seised in fee , and infeoffed i. n. and w : n. ad usum t. p. &c. but a man cannot plead that a. b. was seised in tail without shewing the gift ; for the one is a particular estate , and not the other , , h. . b. bleadings . plenartie : note , when there is no patron , a● where the patron is a priest and is admitted to this benifice himselfe . o● where my advowson is aliened in mortmain , and appropriated to 〈◊〉 house of religion , and the like : in these cases i. may have a quare impedit , and there plenarty by six month is no plea , . h. . b. plenartie . premunire . premunire by bil in the kings bench , see tit. bill . a prohibition lies often where a premunire lies not ; as of great trees , vel pro decimis , de ceptima parte , prohibition lies , and not a premunire ; for the nature of the action belongs to the spiritual court , but not the cause in this form . but where t is of a lay thing which never appertained to the spiritual court , of this a premunire ●ies . as of debt against executors upon a simple contract , or pro lesione fidei , upon a promise to pay l. by such a day , . h. . b. premunire . where a man attainted in a premu●ire shall forfeit his lands in fee imperpetuum , see tit. forfeiture de ●erre , &c. prerogative : a man hath land in use ; of which , part is holden of a. by prioritie , and the rest of the king by posterity in knights service , and dies , the king shal have the ward of the body by his prorogative , and by the statute of . h. ▪ which gives the ward of cestuy que us● where no will is declared ; and per pre●rogativam regis : yet otherwise t is sai● of land in use holden of a common per●son ; for the tenant in use dyed no● seised , and therefore out of the case o● prerogative for the land , . h. . b ▪ prerogative . note , by whorewood the kings attorney , and others : where an information is in the exchequer upon a pena● statute , and the defendant makes bar , and traverses the plea , that th● king is bound to stand to the first tra●verse , which tenders an issue , and can●not waive such issue tendered , and traverse the former matter of the plea , 〈◊〉 he may upon a traverse of an office , an● the like where the king is sole party and intitled by matter of record ; fo● upon the information there is no offic● found before : and also a subject is pa●●ty with the king for to recover th● moytie or the like , : h. . b. prero●gative . shelley just. was precise that a gi●● of the king is good of chattels movea●bles without writing ; as of a horse● ●nd the like : h. . b. praerogat : . ●nd . the ends . note by some , the king shall not ●ave a precipe quod redd . ( as a writ of escheat ) but his title shall be found 〈◊〉 office. time h. . b. praeroga●●ive . where the king shall have his age ? ●here not ? see tit. ag● ▪ t is said if an information be by a sub●ect for the king in the exchequer , and ●●e defendant pleads a bar , and traver●s the information , the king may tra●erse the matter of the bar if he will , ●nd is not bound to maintain the mat●er which is contained in the absque hoc ● . e. . b. praerogative . the end . the prerogative of the king is a ●reatise of the common law , and not ●●tute nor declaration by parliament . ●●d a mine of ore , or argent is to the ●wner of the soil . quaere , lecture b. ●raerog . . where the incumbent is made a bi●hop , the king shall present by his pre●ogative . see tit. presentation . prescription . where prescription shall be gone by acceptance of a grant of the thing , se● tit. estopel . t was said for law , that a custom● may be alledged where there is no person that can prescribe : as inhabitants cannot prescribe : but they may alledge a custom that the inhabitants may common in d. for the one goes with the place , and the other with the per●son , which person ought to be able 〈◊〉 prescribe ; for otherwise t is worth nothing , . m. . b. prescription , the end . note , by the justices , that if a mangran● prox . presentationem to a. and aft●● before avoidance grants prox . presentationem ejusdem ecclesiae to b. the second grant is void : for this was gran●●ed over by the grantor before : and 〈◊〉 shall not have the second presentatio● for the grant doth not import it , . h . b. presentation . a man grants prox . presentationem and hath a wife and dies , the grant● shall have the first presentation , the he the second , and the wife for dowre th● third , . h. . b. presentation . note , by b. that the bishop of e●y said to him , that he saw a presentation in the time of e. . made by the ●aid king : that he presented to a be●ifice pro illa vice , which was of another patronage , by these words , ratione praerogative sue , which benefice voided by reason that the king had made the in●umbent of it a bishop , who was conse●rated : so that when a benefice becoms ●oid by making of an incumbent a bishop , the king shall present to all his ●ormer benefices pro illa vice , whosoe●er is patron of them , . m. . b. presentation . priviledge . note , when a record is removed out of a court of record , as london , &c. ●●to the kings bench , or into common ●ench , there they shall not proceed up●n the original which was in london : ●ut in the kings bench the party may ●d himself by bill of midd. brought ●ere against the party upon his appear●nce : and in the common bench to ●●ing an original retornable the same ●ay . . h. . b. priviledge . procedendo . if a man arrested in a franchise , sue● a writ of priviledge and removes the body and the cause , and after come● not to prove his cause of priviledge , the plaintiff in the franchise may have 〈◊〉 procedendo . and therefore b. seem● that there the first sureties remain : otherwise if it had been dismissed by allowance of the priviledge , for then h●● sureties are discharged . yet it seem● to him , that when they remove the body and the cause , they remove no sure●ties : but then there is not any recor● against them ; and then it seems tha● the priviledge being allowed , the sure●ties are discharged . otherwise whe●● the priviledge is not allowed ; for the● the prisoner and the cause was alwaie● remaining in the custodie of those of th● franchise . . h. . b. procedendo ●● sureties . proclamation . note , that none can make proclama●tion but by authority of the king , 〈◊〉 majors and the like , who have priv●●ledge in cities and boroughs to do it , or have used it by custom . and sir edmund knightly , executor to sir william spencer , made proclamation in ●ertain market towns , that the creditors should come by a certain day , and claim and prove their debts , &c. due by the testator ; and because that he did it without authority , he was committed to the fleet , and put to a fine , . h. . b. proclam . . prohibition . t is agreed , that if a man be sued in the spiritual court , for tythes of seasonable wood , the partie grieved may make a suggestion in chancerie , or in the kings bench , that he is sued in the spiritual court for tythes of great trees , which pass the age of . years , by the name of sylva cedua , which is seasonable wood used to be cut , where indeed t is great trees , and pray a prohibition , and have it . and the same law where a man is sued in curia admiral ' for a thing done upon the sea , where indeed t was done upon the land , there upon a surmise that it was done upon the land , he shall have a prohibition . . h. . b. prohibition . property . t was agreed by the justices , that if a frenchman inhabit in england ; and after war is proclaimed betwixt england and france , none may take his goods , because that he was here before● but if a frenchman comes here after the war proclaimed , be it by his own good will , or by tempest ; or if he yeilds , and renders himself , or stands to his defence , every one may arrest him , and take his goods : and by this he hath a propertie in them , and the king shal● not have them : and so t was put in ur● the same year , betwixt the english and scotch ; and the king himself bough● divers prisoners and goods the sam● year when bullen was conquered of hi● proper subjects . . h. , b. propertie and proprietate probanda , the end . who shall have property in an estray● see tit. estray , quare impedit . by whorewood the kings attorney , clearly ; if two joynt tenants are , the one presents sole , and his clerk in●cted , the other is out of possession , ● . h. . b. quare imped . . the end . quare imped . by mark ogle , against ●arrison , clerk incumbent ; who was in ●y the presentation of the king : and ●herefore the writ was brought against ●im soly : and pending the writ of ●●are imped . the plaintiff dyed after the ● months past , who had but prox . pre●●tationem by grant , his executors ●ought another quare imped . by jour●es accounts , intending to have saved ●e matter by the journies . and 〈◊〉 the justices of the common bench , ●here the plaintiff dies , the executors ●all not have a writ by journies ac●●unts . ( and b. seems that where the plaintiff dies , none can have another writ by journies accounts . but contra in some cases where the defendant dies having the writ . ( b. journeies accounts : quare imped . . ) and note by b. where the grantee de prox . presentatione brings a quare impedit as before , and dies , after the six moneths past pending the writ , and the executors bring another quare imped . by jornies accounts , and take a general writ , and count how that the grant was made to the testator , and he brought a quare imped . and dyed , and that they brough● this writ , and for that reason pertine● ad ipsos presentare , and the defendan● ipsos impedit , and then this imports tha● this is of a disturbance made to themselvs after the months past , & the nth●● writ lies not ; for all ought to hav● been comprised in the writ , and cou●● specially and demand a writ to the b●●shop upon the presentation , and wr● of the testator , & quia non ideo mal● and nothing thereof comes in the ca● aforesaid , betwixt mark ogle , an● harriston , by b. . e. . b. quare in● ped . que estate , whose estate &c. t is said for law , that if a man recovers land against i : s● or disseises i. s. he may plead that he hath his estate , and yet he is in in the post , . h. . b : que estate . que estate in another person of the the tenancy without shewing how , not so in seigniory . see tit avowrie . t was agreed that a que estate shall not be allowed in one who is mean in the conveyance ; as to say that a. was seised in fee , and feoffed ● . whose estate c. hath , who infeoffed the defendant ; for the que estate shall be allowed onely in the defendant or tenant himself , s. whose estate the tenant hath , . e. . b. que estate . note that t was agreed by the justices , that a man cannot convey an interest by a que estate , of a particular estate , as tail for life or for years , without shewing how he hath this estate , be it of the part of the plaintiff , or defendant , . e. . b. que estate . quinzisme . t was agreed in the exchequer , that cities & boroughs shall pay at tenths , and uplands at fifteens , . h. . b. quinzisme , &c. . note by exposition of those of the exchequer , that tax and tallage is not other but tenth , fifteen , or other subsidie granted by parliament . and the fifteen is of the layitie , and the tenth is of the clergy , and is to be levyed of● their land. and the tenth and the fifteen of the layity , is of their goods : s. decimam partem bonorum in civitatibus & burg. et quinsesimam partem● bonorum of the layity in patria , which was levyed in ancient time upon their goods : s. of the beasts upon their lands , which was very troublesom . but now t is levyed secundum rat . terrarum suarum by verges of land , & other quantities ; so that now all know their certainty in every town and countrey throughout the realm . but t is yet levyed in some places upon their goods : but in most places upon their lands , which was granted by the barons . . h. . b. quinzisme . t was said for law , that a man shall not wage his law in a quo minus , . h. . b. ley. . quo minus . the ends . rationabile parte , &c. t was said for law , that the writ de rationabili parte bonorum is by the common law ; and that it hath been often put in ure , as a common law , and never demurred to : therefore b. seems that t is the common law , . h. , e. rationabili parte . the end . recognizance . agreed for clear law in the chancery ; if a man acknowledge a statute staple , and after infeoffs the recognisee , & he makes a feoffment over , now the land is discharged ; for the feoffee is but a stranger . but if the cognisor repurchases the land , it shall be put in execution , and yet t was once dicharged , time e. . b. recognizance . the end . note , that it did appear by search of the records of the common bench , that the justices of the bench may take and record recognizance , as well out of term , as within term ; and as well in any county of england , as at westminster . m. . b. recognizance . note , that the king himself cannot take a recognizance ; for he cannot be judge himself , but ought to have a judge under him to take it . and none can take a recognizance , but a justice of record , or by commission : as the justices of the two benches , justice of peace , and the like : for a conservator of the peace , which is by the custom of the realm , cannot take surety of the peace by recognizance , but by obligation ; the same law of a constable , lecture b. recognizance : record . a man shall not pleadia record , except it be in the same court where the record remains ; without shewing the record exemplified sub magno sigillo angliae , if it be denied : for it ought to come into the chancery by cerciorare , and there to be exemplified sub magno sigillo ; for if it be exemplified sub sigillo de communi banco , scaccario , or the like , these are but evidence to a jury . . h. . b. record . . 't is said that he that pleads a recovery in a writ of right in a court baron in barre of an assise before the justice of assise , he ought to shew it exemplified sub sigillo cancell . otherwise 't is no plea. but of a recod in the common bench , he may vouch it there , and have day to bring it in ; the same law by b. of any other court of record , yet otherwise in a court baron , for there 't is a recovery , but no record , for 't is not a court of record . time. h. . b. record . . the end . note that in the kings bench they have divers presidents , that in a writ of error upon a fine , the record it self shall be certified , so that no plures proclam . shall be made , for if nothing be removed but a transcript , they may proceed in the common-bench notwithstanding that , and if it be reversed , this makes an end of all : but if it be affirmed , then the record shall be sent into the common-bench by mittimus to be proclaimed and ingrossed . m. . b. record . . recovery in value . recovery against husband and wife , by writ of entry in the post where the wife is tenant in taile , and they vouch over , and so the demandant recovers against the husband and wife and they over in value , this shall binde the taile and the heir of the wife . . h. . b. recovery in value . . where a writ of entry in the post is against tenant for terme of life to bind the fee simple , he ought to pray in aide o● him in reversion , and then they to vouch upon the joynder , &c. and such recovery with voucher is used for to doc● the taile in ancient demesne upon a writ of right , and voucher over ; and this of freehold there . yet b. doubt of such recovery upon a plaint there o● land of base tenure , for this cannot be warranted , ideo quaere . . h. . b. recovery in value . the middle . note , that t' was taken , if my tenant for life vouches a stranger , who enters into the warranty , and cannot barre the demandant , by which the demandant recovers , and the tenant over in value , that this land recovered in value shall not go to me in reversion after the death of the tenant for life , nor the reversion of the land recovered in value , shall not be in me in the life of tenant for life , and so 't is holden at this day . . h. . b. recovery in value . . note , by some , where a writ of entry in the post is brought against a husband and wife , where the wifis tenant in taile , and they vouch overe and so the demandant recovers against the husband and wife , and they over in value ; if the wife tenant in taile dyes , and the husband survives , this shall not bind the issue in taile , for the recompence shall go to the survivor , and then it shall not bind the issue in taile . yet b. seems that this opinion is not law , for the recompence shall go , as the first land which was recovered should go . and voucher by husband and wife shall be intended for the interest of the wife . . h. . b. recovery in value . . the end . tenant for life , the remainder over , or tenant in taile the remainder over , is impleaded by a writ of entry in the post , and he vouches a stranger , the demandant recovers against the tenant , and the tenant over in value , this shall bind him in remainder by monntague just. and others , for the recompence shall go to him in remainder . but yet in the case of the lord zouch and stowell in the chancery , the law was determined otherwise by all the justices . b. seems the reason , because that when he vouches a stranger , the recompence shall not go to him in remainder ; contrary , if he vouches the donor or his heir who is privy . but after this day many put in●ure to bind the remainder . . h. . b. recovery in value . . recovery against feoffees seised to use in tailes . see tit feoffements to uses . 't is held , that where tenant for life is , the remainder over in tail , or for life ▪ and the tenant for life is impleaded , and vouches him in remainder who vouches over one who hath title of formedon , and so the recovery passes by voucher , there the issue of him who hath title of formedon may bring his formedon , and recover against the tenant for life , for the recompence supposed shall not go to the tenant for life , and therefore he may recover ; for his ancestor warranted but the remainder , and not the estate for terme of life , and therefore the tenant for life cannot bind him by the recovery , for he did not warrant to him . and therefore in such case the sure way is to make the tenant for life to pray in aide of him in remainder , and they to joyn and vouch him who hath title of formedon , and so to passe the recovery , for there the recompence shall go to both . . h. . b. recovery in value . . 't was agreed that if tenant in taile the reversion to the king , suffers a recovery , this shall bind him and his issue , but not the king by the common law . see now the statute of thereof that it shall not bind the issue . . h. . b. recovery in value . . taile . . the end . relation . where an office found for the king shall relate , where not . see tit. intrusion . of the relation of an act of parliament . see tit. parliament . note , that the attainder of treason by act of parliament , shall not have elder relation then to the first day of the parliament , except it be by speciall words that he shall forfeit his lands that he had such a day and after . . h. . b. relation . . 't is held for good law , that by attainder of felony by verdict , a man shall forfeit all his lands that he had the day of his felony done or ever after , for this shall have relation to the act , contra upon an attainder by out lawry ; for b. seems there that he shall not forfeit but those which he had , the time of the outlawry pronounced , or after , for outlawry hath not relation , as a verdict hath . time. h. . b. relation . . the end . relation of an inrolment : see tit. faitz inrol . releases . husband and wife purchase in fee , and after they lease for years by indenture , and after the husband releases to the lessee and his heirs , this is no discontinuance , and yet this gives a freehold to the lessee during the life of the husband ; per plures , without doubt : . h. . b. releases . . g. chancery was possessed of an indenture , and lost it , and i. s. found it , to whom the said g. c. released all actions and demands , and after the said i. s. gave the same indentrue to john tison , and after the said g. c. brought in action of detinue against the said i. t. who pleaded that the said i. s. found the indenture , and that the said g. c. released to the said i. s. all actions and demandes , and after the said i. s. gave the said indenture to the said i. t. judgment if action . and t' was agreed in the common bench , the case being of land demanded ibidem , that this is a good barre , and that the release of all demandes shall exclude the party of seisure of the thing and of his entry into the land , and of the property of the chattell which he had before . and it was moved in the kings bench , and they were of the same opinion , and said that the reason is , because that entry in land , and seisure of goods are demandes in law. . h. . b. releases . . relief , see tit. debt . remainder : see tit. discent : remitter . no remitter against an act of parliament . see tit. parliament . note a per curiam , if tenant in taile makes a feoffement to his use in fee before the statute of uses made , . h. . and dyes before the said stat●te , his heir within age , and after the statute is made before the full age of the heir , by which the heir is in possession by the statute , he shall not be remitted by it contrary of a discent after the satute for this shall be a remitter . . h. . b. remitter : : if a man hath a tittle of entry , and not a right of entry , as by escheat mort●maine , assent by a woman to a ravisho●● and the like , and takes an estate of th● terretenant , he shall not be remited for he hath but a tittle . ( and a ma● cannot be remitted , but in respect o● a right before , as where a man is di●seised and takes an estate of the disseisor , he is remitted , for he had a right of entry before . ) and the same law where a man decaies his tenements , or converts land from tillage into pasture against the statute , and makes an estate for life to his lord , he shall have no other estate : for he had but a title of entry , and not a right of entry . quaere , for non adjudicatur . . h. . b. remitter . where a devise shall take away a discent , and will not remit : see tit : devise . repleder . t was in use in the kings bench , though that the jury be ready to pass there , if there be a jeofail aparent in the record , the inquest shall be discharged , . h. . b. repleder . rescous , see tit. distress . reservations . if a man leases his mannor except the wood , and underwood , by this the soile of the wood ▪ is excepted by baldwine , wine chief justice of the common-bench : fitz. justice , and knightly , and mart serjeants : contrary , spilman , and w. conigs ' just. . h. . b. reservations . restitution . a man is attainted of treason , the king may restore the heir to the land by his patent of grant , but he cannot make the heir to be heir of blood , nor to be restored to it without parliament : for this is in prejudice of others , . e. . b. restitution . restore al primer action . restored to the first action . if a man enters ▪ where his entry is not lawful , as the heir in tail after discontinuance , or the heir of a woman , or the woman her self after discontinuance , & the other upon whom he enters recovers against him , there they , s. the heir in tail , or the woman , or her heir , is restor'd to their first action of formedon , or , cui in vita yet , if such who enters where his entry is not lawfull , makes a feoffment , and the other upon whom he entered , recovers : now the first action is not restored to the issue in tail , nor to the woman , nor to her heir , by reason of the feoffment , which extincts right and action . but if he which so enters , makes a feoffment upon condition , and for the condition broken , re-enters before that he upon whom he entered hath recovered : and then he recovers after the re-entry made by the condition , there he which made the feoffnient upon condition , is restored to his first action : for the entry by the condition , extincts his feoffment , . h. . b. restore al primer action . retorne de avers . retorn of beasts . note by the opinion of the court , that if a man be nonsuited in a replevin , and a retorn is awarded : and the plaintiff brings a writ of second deliverance , and suffers it to be discontinued , retorn irreplegible shall be awarded , as well as if the plaintiff had been non suited in the writ of second deliverance , . h. . b. retorne de avers . second deliverance . revivings . see tit. extinguishments . riot . rout , and unlawful assembly . note , that riot is where three or more do an unlawfull act in deed , and execute it , as to beat a man , enter upon possession , or the like : unlawfull assemblie is , where a man assembles people to do an unlawful act , and doth not do it , nor execute it in deed . and rout is , where many assemble themselves for their own quarrel ; this is a rout , and against law , though it be not executed : as inhabitants of a town for to break down a hedge , wall , or the like , to have common there or to beat a man who hath done to them common displeasure , or the like , lecture b riots . sanctuary . see tit. corone . saver default , saving default . see tit. judgement . scire facias . of a thing executory ; a man shall have execution for ever by scire facias , see tit. execution . where debt lies , and where a scire facias . see tit. debt . where a scire facias upon a recognisance shall be brought ? see tit. lieu ' second deliverance . see tit. retorn de avers . seisin . if a man holds of the king , and holds other land of another lord , and dies , his heirs within age , who intrudes at his full age , and pays the rent to the other lord , this is a good seisin , and shall bind him after he hath sued livery : for the seigniory was not suspended by the possession of the king , but onely the distress : for after livery , the other lord may distrain for the arrearages due before , per optim . opinionem tune . see now the statute thereof , that the officers of the king shall render yearly the rent to the lord , and the heir shall not be charged with it by distress after upon livery sued , as he was at common law , . h. . b. seisin , . several precipe . t was agreed that a man may have debt and detinue by one and the same writ by several precipe , the one shall be debet , the other detinet , tim. h. . b. several precipe . the end . several tenancie . in an assise , several tenancy is no plea : and the same law in other actions ●here no land is demanded in certain , . h. . b. several tenancy . statute merchant . t was said for law , that if a man sues execution upon a statute merchant , or statute staple , and part of the land is extended nomine omnium terrarum , which is retorned according , and the party accepts it , he shall never have an extent , nor re-extent of the rest . and that upon a nihil retorned upon a testatum est , he may have proces in another county : for there the judgement shal be quod habeat exeontionem de terris quousque summa levitur . yet b. seems otherwise of such retorn of goods , . h. . b. statute merchant . : note if a statute staple be extended , and so remains by seven years without deliberate made , yet he may have a deliberate at the end of ▪ years , but he who hath the land delivered to him by liberate upon a statute cannot make a surrender conditional to the conusor , & enter for the condition broken , after the time of the extent incurred ; as land of l. per an . is delivered in execution for l . this may incurre in . years , there the conusee by such condition , cannot enter after the four years incurred , for he ought to take the profits upon his extent presently . and he shal not hold over his time nisi in speciali casu , as where the land is surrounded with water , sudden tempest , or the like . and the judgement shall be quod teneat terram ut liberum tenementum suum quousque denarii leventur , . h. . b. statute merchant . . t is said for law , that if the conusor upon a statute staple hath a reversion , and grants it over , and after the tenant for life dies , this land shall not be put in execution : for the reversion was never extendable in the hands of the conusor , . h. . b. statute merchant . . the end . note , by * bromley , hales , and portman justices , and rich , who was first chancellor of england , & apprenticius curiam that if the conusee purchases parcel of the land after the statute acknowledged or recognised , this ●s no discharge of the statute against the conusor himself . but the feoffees of ●he conusor of other parcels , shall be ●here of discharged . but if the conusee ●ath the land delivered in execution , ●nd purchases parcel of the land of the conusor , this is a discharge of the in●ire statute . . h. . b. statute merchant . . t was said for law , that if the conusee upon a statute staple dies , and ●is executors sue execution in the name ●f the testator , as if he were in life , ●nd the sheriff takes the body in the ●ame of the testator , &c. yet this is ●ot execution for the executors , but ●hey may after have execution in their ●wn name ; for the first execution in ●he name of him that was dead before ●he teste of the writ , was void , and ●he body cannot remain to satisfie him who was dead before . nor the she●iff cannot deliver the land nor goods ●o him who is dead , juxta formam bre●is . and by b. in the book of en●ies , the executors of the conusee shall have execution upon a statute merchant , without scire facias , and this upon surmise as it seems to him . and if the conusor be retorned dead , yet execution shall proceed of his lands and tenements without scire fac ' against his heir : and the exten● and liberate shall be served imediatly . yet by b. no remedy appears there for the goods of the conusor ▪ when the conusor is dead , to have any execution of them . . h. . b. statute merchant . : t is said if a writ of execution with extendi facias issues upon a statute merchant , that the writ ought to be retorned , and the land upon thi● delivered to the conusee by liberate inde . time h. . b. statute merchant . . the end . supercedias . t was holden for law , th●●● a writ of attaint a man shall ●ot have a supercedias for to ●isturb execution ; for the ●erdict shall be intended true ●ntill t is reversed , &c. and ●●at the register which gives 〈◊〉 supercedias there , is not law. contrary upon a writ 〈◊〉 error ; for it may be inten●ed that error is for the suit ●f the defendant , &c. . h. b. supercedias . . sureties . where sureties in london●●all ●●all remain after the action ●emoved ? & è contra . see tit. ●●ocedendo . affirmatur pro lege , that ●uretie of the peace is discharged by the death of the king , for t is to observe t● peace of that king , and when he dead , t is not his peace . : m. . surety . . surrender . tenant for term of life surrenders him in reversion out of the land which he agrees , the free hold by th● is in him presently , and he is tena● to the action by precipe quod redd● without entry , but he shall not ha● trespass without entry . . h. . ● surrender . . where tail shall be extinct by su●●render of letters patents , where no● see tit patents . note in the case of culpeper tw● said that the king himself cannot r●●cord , or receive a surrender of land 〈◊〉 letters patents , made to him extr● curiam , but this ought to be befor● his chancellor or other justice to th● authorized . . e. . b. surrender . . th● end . if a man leases for years , the remainder over for years , and after the fir● termor grants his interest to the le●sor , this is no surrender by reason 〈◊〉 〈◊〉 mean interest of the term in re●●inder . and a termor makes his essor his executor and dies , this is no ●●rrender , for he hath this to another 〈◊〉 , contra whorewood inde . . e. . b. ●●rrender . note , where a man leases land for 〈◊〉 of years , the remainder over for 〈◊〉 , the remainder over in fee , or re●●rving the reversion , there he in remainder for term of life , may surren●er to him in reversion , or to him in remainder in fee , and the estate for ●erm of years is no impediment , for ●●ough it cannot give the possession of 〈◊〉 land , yet it gives the possession of 〈◊〉 free hold which is in the thing ●hich was surrendred . . m. . b. surrender . . suitor . t was said for law in the star-chamber , betwixt brown justice , and ●ion grocer of london , that a court 〈◊〉 may be holden before two sui●●rs , for the plurall number suffices ▪ ●ime . h. . b. suit. . tail. recovery upon voucher against tenant in tail , is a bar by reason of the recompence in value . and a recovery b● writ of entry in the post by single voucher doth give but the estate which the tenant in tail hath in possession tempor● recuperationis , so that if it were in o● another estate then the tail , there the tail is not bound against the heir . but the double voucher is to make the tenant in tail to discontinue , and to bring the writ of entry against the feoffee , and then the feoffee shall vouch the tenan● in tail , and he shal vouch over , and so shal lose ; and this shal binde all interests and tails that the vouchee had . . h . b. tail . tenant in tail hath issue and asiens with warranty , and leaves assets & dies , the issue cannot recover by formedon ; for the warranty and assets is a barr . and if the issue aliens the assets , yet he shall not have a formedon . but if he hath issue and dies , there the issue of the issue shal have a formedon , because that the assets is not discended to him . yet is said that if the issue upon whom the warranty and assets discended brings a formedon and is barred by judgement , and aliens the assets and dies , his issue shall not have a formedon , because that his father was barred by judgement . b. tail . and if the tenant in tail hath issue two sons , by divers venters , and discontinues , and dies , and an ancestor collateral of the eldest son releases with warranty , and dies without issue , and the eldest son dies without issue , before 〈◊〉 formedon brought , the younger son may recover by formedon ; for he is not heir to the warrantor , and his brother was not barred by judgement . yet b. doubts thereof ; for it seems to him that the discent of the collateral warranty extincts the tail , but if the eldest had been barred by judgement , then clearly the younger is gon also . . h. . b. tail . formedon . tenant in tail , the reversion to the king , suffers a recovery operatur●y ●y it . see tit. discontinuance de possession & recovery in value . if the king gives lands in tail by his letters patents , and after the donee surrenders his letters patents to the k. the tail by this is not extinct . . h. b. tail . the king tenant in tail cannot discontinue by grant by patent . see tit. discontinuance de possession . tenant at will. note for law , that there is no tenant by sufferance , but he that first enters by authority and lawfully , as where a man leases for years , or for term of anothers life , and holds over his term after the term expired , or after the death of cestuy que vie . and tenant at will is , where a man leases his land to another at will ; for he who enters of his own head is a disseisor . time h. . b. tenant per copy . . the end . tenant by copy . note , that t was said for law , that tail may be of a copyhold , and that a formedon mayly of it in discender by protestation , in nature of a writ of formedon in discender at common law , and good by all the justices , for though that a formedon in discender was not given but by statute ; yet now this writ lies at common law and it shall be intended that this hath been a custome there de tempore , &c. and the demandant shall recover by advise of all the justices , h : . b : tenant per copy . where a stuard , or under-stuard may let by copy , & e contra , see tit : court baron . note , that if a man leases a mannor for yeeres , in which are copy-holds , and after a copyholder dies , the termer of the mannor grants the land by copy for three lives , this is good ; for the custome through all england is , that the lord , for the time being , may demise by copy , &c. and this notwithstanding that hee is but durante bene placit . or at will. and 't is held that such tenant of a mannor cannot demise , reserving lesse rent then the ancient rent , but he ought to reserve the ancient rent , or more , quaere of that . tenant by sufferance , see tit : tenant at will. tender . 't is said for law , that upon a lease for yeers , rendring rent with re-entry the lessee ought to bee ready all the day and make attendance to offer it ; and it suffices for the lessor to come any time of the day , yet the entry is , that the one and the other attended the intire day , quaere inde h : . b : conditions , . the end , entre congeable , . the end . note that 't was agreed in the serjeants case , that where a man leases land for yeeres , rendring rent , and for default of payment a re-entry , it suffices for the lessee to tender the rent upon the land , the last houre of the last day of the moneth , if the money may bee told in that time : and so it sufficeth for the lessor to demand it the same houre , m : . b : tender , . if a man leases for yeeres rendring rent at michaelmasse , and other covenants , if hee bee bound in an obligation to pay the rent precisely , there hee shall seeke the lessor , but if hee be bound to perform the covenants , &c. the tender upon the land sufficeth ; for there the payment is of the nature of the rent reserved , contrary in the first case , e : . b : tender , . tenures . what shall bee a tenure , and what a condition , see tit. conditions . what shall bee a tenure in capite of the king , what not , see tit. liverie . a man makes a feoffment of the moytie of his land , the lessee shall hold of the lord by the intyre services which the intire land was holden before , for the statute of quia emptores terrarum , tenend . pro particula , holds not place here ; for a moytie is not particula : the same lawe of a third part , and the like , which goes by the halfe and the whole ; contrary of an acre or of two acres in certain : and if a man holds two acres by a hauke , and makes a feoffment in fee of one acre ; the feoffee shall hold it by a hauke , and the feoffor shall hold the acre by another hauke , h : . b : tenures . restitution by parliament revives a seigniory or tenure which was extinct by attainder of treason , by parliament , see tit. extinguishment . see in the exchequer e : . ro : . 't was found that a man held of the king in knight service in capite , ut de honore suo de rayleghe , and 't was taken no tenure in capite , but a tenure of the honour ; and therefore his heir shall have ouster omaine of his other lands , which should not be if it had been in capite , for then the king shall have all in ward by his prerogative : yet otherwise 't is if the honour be annexed to the crown ; for then the honour is in capite . and h : . the honour of rayleghe was annexed to the crown ; therefore now 't is in capite . and where the king gives land to hold of him by fealty , and d. pro omnibus servitiis , this is socage in capite , for 't is of the person of the king , otherwise if it were to hold ut de manerio de r. . h : . b : tenures . 't is held , that if a man made a feoffment of land before the stat : of quia emptores terrarum to hold of him , and to make suit to his court ; this is good if he hath a court. but a man cannot commence a court by tenure made , where he had not a mannor before ; for there the services should be holden of his person ( b : tenures . ) and a man cannot make a mannor at this day , though that he gives land in tayl to hold of him , and by suit of his court ; for he cannot make a court ; for a court cannot be but by continuance . and so a man may make a tenure , but no mannor nor court ; for a mannor and court cannot be but by usage had de tempore cujus contrarium memoria hominum non existit . testament . testament by a feme covert of the assent of the husband , see tit : devise . a man devises his land to i s ; this shall be taken but for term of his life ; but if he saith paying a . l. to w n this shall be intended a fee-simple : and if he doth not pay it in his life , yet if his heir or executor pay it , that suffises ; quaere of his assignee , h : . b : testament : . if a man holds three severall mannors of three severall lords in knight service , and every of them of equall value ; he cannot make his will of two of the mannors , leaving the third mannor to the heir ; but of two parts of every mannor ; for otherwise he shall prejudice the other two lords , h : . b : testament : . note , by the doctors of the civill-law , and serjeants of the common-law ; if a man makes his testament , and names no executors , this is no testament ; but yet 't is a good will of the land in it , for those are not testamentary ; but in the first where executors want , yet the legacies shall be paid . but if it appears that he made part of the testament , and not the whole ; there the legacies shall not be paid . and where a man makes a testament and executors , and they refuse , yet the legacies shall be paid ; for there is no default in the testator ; and the testament shall be annexed to letters of administration , h : . b : testament . note , for law by the chancellor of england and justices , that if the tenant who holds of the king in knight service in capite , gives all his land to a stranger , by act executed in his life , and dyes ; yet the king shall have the third part in ward , and shall have the heir in ward if he be within age : and if of full age , he shall have primer sesin of the third part , by vertue of that clause in the stat : saving to the king ward , primer sesin , livery , and the like , by which it appears that the intent of the act is , that the king shall have as much as if the tenant had made a will , and had dyed seized ; yet by all , after that the king is served of his duty of it , the gift is good to the donee against the heir , e : . b : testament . note , that 't was adjudged betwixt vmpton and hyde , that the explanation of the statute of wills , is not to take effect only from the time of the explanation ; but the first stat : which is explaned shall be so taken ab initio : so that the wills of vmpton , gainesford and others which are excepted in the explanation , shall be taken good by the stat : of h : . of wills which was explaned , m : . b : testament : . testmoignes , witnesses . the age of witnesses in an aetate probanda , is years , lecture b : testmoignes . the end . titles . note that a man shall make a good title in an assize to say , that i n was seized in fee to the use of t p , which t p infeoffed the plaintiff , who was seized and disseized , &c. without shewing what person made the feoffment to the use of t p , or how the use commenced , h : . b : titles . travers of office. 't is said for law , that none can traverse , except he makes title to the same land in the premisses , or close of his traverse , h : . b : traverse d' office . 't was found that i s dyed seized , by which w s his son comes , and saith that the said i s in his life was seized in fee , and infeoffed a b in fee , to the use of the said i s and his heirs , and dyed ; and after by the stat : of uses h : . he was seized in possession without that that i s his father dyed seized pro ut , &c. and a good traverse : and a termor cannot traverse an office by the common-law , except it were found in the office , and then he might have a monstrans de droit , and ouster l'main the king , h : . b : travers d' office . where a man shall have a petition , where traverse , see tit : petition . where the king hath no other title but by false office , there the party who can make title , may traverse as well against the king as against the party , if the king had granted it over ; but now this is helpt by stat : h : . b : travers d' office . the end . where a tenure is found of the king ut de ducat : suo lancastrie , which in truth is false ; yet this need not to be traversed , for the king hath this duchy as duke , not as king ; and a man shall not be put to traverse but where the office is found for the king , ut pro rege angliae , for then he hath a prerogative , and as duke none , e : . b : travers d' office . non-suit or relinquishing of a traverse is peremptory ; contra of non-suit in a petition ; and the judgement of traverse is no other , sed quod manus domini regis amoneantur , et quod possessio restituatur to him that traversed , lecture b : travorse d' office . travers by , &c. what thing shall be traversable , what not , see tit : issues joynes . action for making false clothes in bartholomew-fair , contrary to the stat : the other saith , that he made them well and truly at d in the county of f without that that he made them in bartholomew-fair in l , pro ut , &c. and a good plea , h : . b : travers by , &c. . if in assize the tenant pleads that his father was seized in fee , and dyed by protestation seized : 't is said that the plaintiff may make title by a stranger , without that that the father of the tenant was seized in fee , &c. h : . b : travers by , &c. . the end . information in the chequer : the defendant pleads a plea , and traverses a materiall point in the information , upon which they are at issue ; there the king cannot waive this issue , as he may in other cases where the king alone is party without an informor ut supra , by the kings attorney and ●thers learned in the law , h : . b : travers by , &c. . tender not traversable in a writ of ●ntrusion , maritagio non satisfac : for the single value , see tit : forfeiture of marriage . trespas : the defendant said , that i n was seized in fee , and leased to him for twenty one years , and gave colour ; the plaintiff said , that his father was seized and dyed seized , &c. and ●he entred and was seized untill the trespas , absque hoc quod dictus j n aliquid habuit tempore dimissionis , and a bad traverse ; but he shall say without that that i n was seized in fee modo & forma pro ut , &c. in communebanco , e : . b : travers per . assize . the tenant makes a barr by a stranger and gives colour : the plaintiff makes title by the same person by which the defendant made his barr , s : that i s was seized and gave in tayl to his father , who infeoffed w n who infeoffed the tenant , upon whom a b entred and infeoffed the grandfather of the plaintiff , whose heir he is in fee , who dyed seized , and the land discended to the plaintiff , & so he was in in his remitter , until by the defendant disseized : and in truth a b never entred , nor never infeoffed the grandfather ; and yet 't was held cleerly , that the tenant in his barr to the title , cannot traverse the feoffment of a b , but ought to traverse the dying seized of the grand-father of the plaintiff which remitted him , for this binds the entry of the tenant , and is the most notable thing in the title , e : . b : travers per . trespas . the defendant said that i was seized , and infeoffed him , and gave colour ; the plaintiff may say , that h was seized and leased to i at will who gave to the defendant , and r re-entered and infeoffed the plaintiff ; he ought to say , without that that i was seized in fee modo & forma pro ut , &c. time : e : . b : travers per . the end . place not traversable , see tit : attaint , treason . a chaplaine had affixed an ancient seale to a patent of non-residenee , made by himselfe , of the part of the king , and was imprisoned in the fleet for it : and 't was holden misprision , and no treason , by the justices , and he escaped and was not put to death ; for 't was said , that because he did not counterfeit the kings seale , but tooke an ancient seale , this is not treason , h : . b : treason , . the end , . note , that in january this yeere , h : howard earle of surrey , sonne and heir apparent of thomas duke of norfolke , was attainted of high treason , for joyning the armes of england before the conquest , and other armes after to his owne armes ; and other pretences against the prince ; and hee was tryed by knights and gentlemen , and not by lords ; nec per pares regni , because that hee was not earle by creation , but by nativity as heir apparent of a duke , which is no dignity in law , for if hee had beene of dignitie by creation , and lord of parliament , he should be tryed by his peeres , h : . b. treason , . 't was agreed that for misprision of treason , or if a man knowing counterfeit money , and imports it out of ireland into england , and utters it in payment or the like , a man shall lose his goods for ever , and the profits of his land , for his life , and shall be imprisoned for term of life , e : . b : treason . the end . note that it appeares by divers records and presidents that these words ( compas or imagine the death of the king ) are large words , for he that maliciously devises how the king shall come to death , by words or otherwise , and doth an act to explain it or the like , this is treason : and hee who intends to deprive the king , in this is intended the death of the king ; quaere of the depriving , for by b : a man may deprive and yet intend no death : and for this cause a statute was thereof made , time h : . & e : . and the detayner of a castle , fortresse or the like , against the king , is levying of warre against him , all which words ( levying of warre , and the others afore ) are in the statute of e : . and adhering to the enemies of the king , ibm : ayding and strengthening them , m : b : treason , . 't was agreed in parliament that for misprision of treason , the fine used to bee the forfeiture of all his goods , and the profits of all his land for his life , and his body imprisoned ad voluntatem regis , for misprision is finable , m : . b : treason , . the end . note , that if an alien borne of a countrey which is in amity and peace with this realme , comes into the realme with english traytors , and levies warre , this is treason in all ; contrary , if the country of the alien were in warre against england , for then the alien may bee killed by marshall lawe , m : . b : treason , . trespas . note , that in the register amongst the writs of trespas , there are many writs of trespas , quare vi & armis equum suum apud d inventum cepit & effugavit , &c. and so see that if they be taken in a common , or other land which is not to the owner of the beasts , yet he shall have trespas vi et armis , but not quare clausum fregit , m : . b : tenants , . tryall . peere of the realme shall bee tryed by his peeres , if hee bee arraigned upon an indictment ; contrary , if he be arraigned upon an appeale , for at the suite of parties he shall not be tryed by his peeres : and so was fines lord dacres of the south this yeere , and hanged for felony , for the death of a man who was found in his company at a hunting in sussex , h : . b : jurors , . the end , tryalls , . note that in a court baron the tryall is by wager of law , but they may bee by jury ex assensu partium : and the maximes and generall customes of the realme , which is the common-law , shall bee tryed by the justices : and the same law of expositions of statutes ; and by the civill-law , the judges have the construction of statutes likewise : but particular customes shall not bee tried but per patriam , h : . b : trialls , . note that a bishop is a peere of the realme , and shall bee tryed per pares suos upon an arraignment of a crime , and so put in use ; therefore knights shall be of the jury , and if not the panel shall be quashed ; yet see h. . that the bishop of rochester was not tryed by his peers , m. . b. trials . the end . variance quare impedit upon a grant de proximum presentatione granted to i : n. gentleman , and in the writ brought by i. n. this word [ gentleman ] is omitted , and the defend ' . demanded oyer of the deed , and had it , and the variance no matter ; for the action of quare impedit is founded upon the disturbance , and not upon the deed , as an action of debt is founded upon the obligation . e. . b. variance . verdict . note , that the court of common bench would not permit a verdict at large in a writ of entry in nature of an assise : because t was a precipe quod reddat , at which b. admires : for it seemeth to him that upon every general issue a verdict at large may be given , h. . b. verdict . . special verdict , where the issue is upon an absque hoc . see tit. issues , joynes . villeinage . if a villein comes to an executor , or to a bishop , parson or the like , in jure ecclesiae , and he purchases land , the executor enters , he shall not have it j●re proprio , but as executor , and it shall be assets . and if the bishop , or the parson enters , he shall not have it but in jure eccesiae , because that they had not the villein in jure proprio , but in another right : contrary , if they had had the villein jure proprio , . h. . b. villeinage . the king shall not have the villein of another in ward : and yet if there be an ideot , he shall have the villein of the other who is so ideot . quaere . and the king shall have the perquisite of a villein of another if he hath him as ideot . lecture b. villeinage . voucher , see b : tit. voucher . . vsury . note that where a man for l . sels his land upon condition , that if the vendor or his heirs repaies the summ citra festum pasche , or the like , tunc prox . futur . that then he may re-enter , this is not usury : for he may repay the day before , or any time before easter , and therefore he hath not any gain certain to receive any profits of the land : and the same law where a defeisance , or statute is made for the repayment citra tale festum : e contra , if the condition be that if the said vendor repays such a day , a year , or two years after , this is usury : for he is sure to have the lands and the rents , or profits this year , or these two years . and so where a defeisance , or statute is made for the repayment ad tale festum , which is a year or two after , . h. . b. vsury . if a man mortgages his land upon defeasance of repayment to re-enter , by which indenture the vendee leases the same land to the vendor for years , rendring rent : there if there be a conditition in the lease , that if the vendor repaies the summ before such a day , that then the lease shall be void : this is not usury . otherwise if it be to repay such a day certain , a year , or more after . . h. . b. vsury . vvaife . t was agreed , if a man be pursued as a felon , and he flees , and waives his own goods , they are forfeited , as if they had been goods stolne , . h. . b. estray . waste . t was said for law , that if a termot commits waste , and makes executors , and dies , the action of waste is gone : for it doth not lie against his executors 〈◊〉 for waste done by themselves , & not 〈◊〉 the waste of the testator : for t is a ●mmon trespass , which is an action ●●rsonal , and dies with the person . . ● . . b. waste . nontenure no plea in waste , see tit . leadings . t was agreed that beech of the age 〈◊〉 years , nor under years , cannot 〈◊〉 cut by tenant for term of years , or ●erm of life : for they are of the nature 〈◊〉 timber , and may be timber , and by ●is way they shall never grow to be ●imber , time h. . b. waste . note by bromley chief justice : if a ●an doth waste in hedge-rows that ●●viron a pasture , nothing shall be reco●red but locum vastatum , s. the circuit ●f the root , and not the whole pasture ; ●nd by him and hales , justice : the cuting of beech of the age of ten or eight ears is waste , for they may be timber ●fter . and that where there is a wood , in which grows nothing but underwood ●he termor cannot cut all . contra , of ●nderwood , where beech , ash , and o●her principall trees grow amongst them ; for there he may cut all the underwood . and a termor may take beech , a● es , and the like , which are well sease● able , which have been used to be fel● every , or , , or . yeare and by some at , , or : years it be seisonable wood , which is calle● silvae cedua , . e. . b. waste . t was holden by the chief justice that the racing of a new frame , whic● was never covered , is not waste : bu● t was agreed , that if a house be ruino● for default of any covering at the time of the death of the lessor , and after th● tenant suffers it to be more ruinon that of this new ruin the heir sha● have an action of waste : for this waste which continues : for of the decay which came in the time of the hei● the heir shall have an action of waste è contra , of that which was in the life of his father , . m. . b. waste the end . writ . t was in ure in debt against i. n. o● c. yeoman , alias dictus i. n. of c. for and heir of w. n. and charged him as heir , that the vvrit abated , because that he charges him as heir , and he ●t named heir in the premises , but in ●e alias dictus . so in debt against i. n. of c. yeoan , alias dictus i. n. of c. executor of the testament of w. p. and declares against him as executor , . h. . b. brief . note by fitz : and shelley justices , ●hat if a man pleads a plea which goes ●o the action of the writ , he may chuse ●o conclude to the writ , or to the acti●n . . h. . b. brief . . vvhere a writ brought in such a ●ame of dignity , which was lost by in●ermarriage , shall abate . see tit. nosme . finis . notes, typically marginal, from the original text notes for div a -e h. . . by rede . h. . ● . h. . . by thirn . . h. . . . h. . see tit. leases . see tit. leases . jay accords . h. . . ▪ h. . . by brisot , . e. . . by catesby . h. . c. . agrees newton h. . . . h. . by hank . h : . . h. . . petty br. h. . m. . agrees . e ▪ . and see ▪ e. . after under this title . see h before . mar. . . time , h : . . petty br. m. . com. . rep. . &c. pinchons case cont . see h . before . see. h . before . see h. after . h. : c : see h : : : & e : : : . e. . ca. . rast : administ . . h : : ca● . . rast : probat of test : . h : . by fitz. h : . . by trema : see e : : after . h : . c. rast : administ : . eliz. com : : kirton agrees e : , , . el. com : . ● . cont. com. ibid : see the stat. com : . how seperated , see com : : & . see this act , com. , see h. . see h. . e. . . by coke , stp. : . e. . . by choke . see h. . . e. : by persay . e. . . by thoro stp. . cont . h. . by wangf : lit. . e : . . see e. . next after . see dyer the begining . see h. . before . see . mar. . after . see coke upon lit. see before . see coke upon litt. see . h. . after . see before h. . e . . by v●vi●or & ●●●tesby . see , & e. . com. ● : see . h. . tit. parliament m. com . . e. . com. . 〈◊〉 . . by 〈…〉 e . 〈◊〉 . ● . ● . m. . m. ● by the justices accord . st. b. see e . . by hussey . time h. . see st : . a. see . h. tit. contr. see after . sir john fitz. james h. : . by newton b. arbitrement . e . . by choke & nele . perk. e . e. d. s. . h. . : by prisot : h. . . per curiam h. . . contra by wangf : e : : : by belk : 〈…〉 〈◊〉 . . westm : ● : : see ti● . fines levied : fitz : : a : ▪ h . 〈…〉 : : h : : cap. : see cokes . book . h. c. . see . h. tit. discontinuance after . see . h. . . by brudnel . e : : : by suliard : : r : : : by hussey : ass : : see h. . tit. action upon the case h. . . by ashton e. . . by choke . see h. . com. . see e. . see my lord cokes . rep. conc. lit. h. . . c. . rast. inrolments . c. . rast. uses . lit. . abr. of ass. . see e. . after . see e. . com. . see tit. leases see after . see . h. . before : lit. . & d. ● . : & . e. . . contra . com. . & . see h. before . register . register . e. . h. . by rede . h. . . by keble . e. . com . . h. . . by gas● . h. . b. audita querale . the end . e. . . by finch . e. . b. suit . econt . see cokes rep : e : : m : : com : : m. . com. . eliz. ibid. . h. . c : . perk : h : . . by prisot : h. . . by prisot . e. : . by choke . e. . . h. . . by prisot . h. . : by tillesley . see coke upon lit. wimbishes case , ●ime h : : com : h. : ● e : ● : com : . see e : : tit : ward h : : c : : limitation : notes for div a -e . e. . . by thorp . h. . . econt●a . notes for div a -e e : . accord : time e : accords h : : c : time e : : accord : see coke upon lit : note that these words ( executione eorundem ) are necessary , e. . . by choke , see my lord coke . see . h : : after : filpot . e. . : accord : see ▪ h : : before & h : . tit : intrusion . see time h : : tit : devise . & cokes rep see h. after , & cokes rep m. . com. : see h. before , h. . . by hussey : see cokes rep e : : c. clergy . see cokes book . h. . accord . see after . see tit. officer . see tit. officer . the same admitted h. . : d. s. . h : . . petty br : see before : magna-charta . c. : rast : common-pleas : . h. . accord : before . marrow serjeant in the inner-temple upon the stat. of peace . . e. . c. . see after e . tit. corone . see after h. . & . h. . fineux agrees , h . . & h. : h : : by brudnel fitz : : accord : h : : : & : d : s : : see : h : : : by knightly : h : : by bryan cont. perk : : c : see cokes rep knights case : lillingstons . c damport● c : h : : : h : : : by engelf : e : : : by rogers h : : : : see before h : : pleading of covenants performed see cokes rep : quaere : see my lord coke cheddingtons c. see coke lib. . . baspoles case dyer fol. . b. see . h . after . h. . . by keble . e. . . by catesby h. . . per cur . e . . m. h. . b. cond . . the end h . . h. . . by hussey . admitted . e. . . see before jay accords h. . h. . . by prisot . . e. . . by catesby . see before . h. . . h. . . cont . by frowick . . e . com. . . m . com. . see coke penants case . casus hill for the parsonage & glebe of stoke , super derne in com. salop . where the parson , patron , dean & chapter made the assurrnce b. charg . the end . see tit. leases . . r. . . see cokes rep. see time. h . after . . & . e. com. . see . e. . tit. estates . & . e. . faits inrolle . h. . cap. . rast. inrolments . see . h . tit. apportionment . & . h. . . see . h ▪ . t it prescription . . h. . . . fitz. . m. . e ▪ by genny & choke . . h. . . by babing . . h. . . by choke . . h. . . by newton . h . . . h. . . by cutler . a man pleads m ▪ . m. . cont . . h. . . by h●ls & firwith accord . st. . c. see . e. . by neele . st. . d. see coke upon lit. s. d. s ▪ . . h. . . st. . c. st. ▪ c. . ass. . . ass. . . h. . . by frowick . b. corone . . st. . c. . m. . com. . see coke . lib. see . h. . tit. triall . . h. . . accord . by fineux . . e. . . by borous . see . h. tit. oyer & terminer . e. . . accord . see tit. commission the end . . e. . cap. . clergy . sanctuary . see tit-commission the end . see cokes rep. st. . b. . h. . . by justices . see st. . h. & cokes . book . . & . . e. cap. . rast. treason . st. . a. rast. treason . st. . lectura . w. n. time. h. . see st. . c. . e. . . mark. accord . . h. . . by newton . see . h . . see . h . . see coke lib. see . h. . . by keble . h. . by newton . . h. . ● . t. . m. accord . h. . c. . rast. dam. . sta● . . . h. . . see coke l. . mary portingtoes case . ● h. . see . h. . t it fines . see . h . tit. mannor . notes for div a -e h. . . . h . . contra . . m . see tit . abridgment . h. . . by moyle . h. . . per. ●ur . see tit. livery . see h ▪ . tit. parliam . see tit. restitution . and coke upon lit. the begining . h. . . cont . by fitz. curia . e. . chetle accord . b. debt . the end accord . see coke l. & his lit. h. . . by rolfe . the same case h. . at s. albons lit. . n. b. . h. . . by fineux . . m. . com . ● h. . d. s. . see e. . . perk. . g. see coke upon lit. h. . c. . rast. probat . of test. see coke upon lit see coke upon lit & tit. mortmain . see . e. . after . & tit. chattels . see be●ore & t●t chat ▪ h. , by norwich . fitz. & more see coke upon lit. see coke upon lit. . h. . b. discents . accord . vide infra see . h . . b. done. . see . h . tit. livery . see coke upon litt. litt. . litt. . e. com. . c. rast ▪ treason . w. . c. . . h . . by ellerker . see coke upon litt. see before . b. nosme . whorwood . h. . see tit. assurances , & . recovery in value . the like was agreed h. . b. patents . see time h. . tit. patents . ecom . . . . b. tail . & . ecom m . t. . h. . accord fitz. g. see coke upon litt. see . e. . com. by mountague , and coke upon litt. see tit. grants . see tit. prerogative . . h . by davers . h. . . cont . . h. . . by jane perk. . see coke upon lit. dower . perk. . perk. . . h. . c. . see vernons c. coke . l. see coke beverlies c. lib. notes for div a -e . h. . . by brudnel . see tit. tryall . . h. . . moil accord . see . h. . . fitz. & brook. accord . . h. . . n. b. . . h. . . . h. . . see coke . l. . h. . . . h. . . book at large . . h. . . . h. . . by keble . h. . . see . h. . after . see coke upon litt. see . h . . the book at large . and antea . see coke upon litt. . h. . . see fines levies . w. ● cap. . . r. . cap. . see before . . h. . cap. . the like case betwixt villiers and beamont was adjudged in the commō bench . t . m. . e. . com ▪ . h. . . rast discontinuance of proces . . . m. . com. . . h. . cap. . rast. com. . . e. . com. ▪ . m. . com. . see coke upon litt. e. . by billing see cooke lib. . ridgways case . fitz. . c. fitz. . n. accord see cooke vpon lit. so of ayde prayer , h. , , & . rast. . m . & eliz. com. . lit. . & cook upon it . rast. . h. . h. cont sec h tit entre congeable : & cook lib. e . by genney . e. com ▪ . h by poroing . see cook lib. & his li● . ●o . . b. w●stm . . c. . rast. tail. . see h. . tit. testament & cook upon lit. &c tit. conscience . . h. . see tit. contract . h. . . by fortescue accord see cooke upon lit. estoppell . h . by laken d. . . lit. . see cook h. . . danby accord . see h . h. . . per cur. h. . . by babington . see ● h. . before . see cook upon lit. jo. lit. . h. . . by brudnell . hussey accord . e. . eliot accord . h. . . h. . . by thirning e. . com. . h. . . cas . . h. . . e. by thorpe e. . . e. . . by ch●ke . moile and ashton ●ccord . h. . . h . by fitz. see dyer . h. . hales and whorewood accord . e. b. surr. . the end see cook upon litt. jo. see tit. extinguishment see h. . tit. corporation . see h. . t it parliament . see tit. apportionment . lit. . h. . . by davers accord . perk. . c. e. . b. surr. . the end . see tit. executors and surrendor . notes for div a -e e. . per accord see h. . tit. action upon the case . e. per cur. see cooke upon lit. so . see . h. . tit. coverture . e. . . by lit. see tit. fines , levies . h. . see h . by davers . eliz con. . & h. . ca. . see tit. conscience . fitz . l. e. . see h . tit. leases & e. com. . by hal●s just. m. . com. . & e. . com. . m. . com. h . h . by fitz. h . counter-plea of voucher . see time. h. . after . lit. . e. . by r●de accord . see h. . tit. leases . accord frow . h. . . & e. . . m. . com. r. . ca. . e. . . by choke see h. before . e. . by finch e . . by collow & townes . r. c . rast. feoffments . see h. . before . see the next sect . prope finé . h . . by prisot . see cook upon lit. west . . ca. . h. . by montague . see cook lib. . chudleighs case of the escheat , . h . by pollard : of the recovery , e. . com . by halles . r. . ca. . see h. . after . h. . . by br. just. perk. . c. litt. . perk. . d. see after . see dyer . m. fo . . westm. . ca. . rast. tenure . e. . by finch . perk. . b. cap. . see before . see cook lib. h . by wangf . el. com. . see before time. h. & after h. . r. . ca. . rast. uses . see before h. . . accord . see h. . . h. . by pollard see h. . before . h see before . westm. . ca. . r. . ca. . h. . ca. . see tit. fines . h. . ca. . rast. uses . see e. . com. . see h. . before more held time m. . that a use may be well changed for a consid . past . see ● . . el. . cont . see mildmayes case cook lib. . & el. com. . see h. . before . see h & e. . before . h ca. . see cook. lib. . chudleighs case see before h ca. rast. uses . see cook lib. . shellies case . h ca. rast. uses . h . h accord be●ween w. roch. and radm. latharne , &c. see tit coverture . h . . by keble . h. . fitz. accord . r. . ca. . rast. uses . see tit. feoffments to uses . w. . ca. h. . ca. . see tit. faits inroll h . by danby . see time. h. after . see h. . before . fitz . a. e. . . per cur. see e. . before . e. . . per cur. h. . . h. . . h. . ca. . fitz. . d. h. . . by townes . st. . e. . . by billing e. . . see h. . tit. tayl. this matter was in ure p. rot. . in the common bench betwixt jarveis demandant & brown tenant . see e. . after . see m. . after , & e. . e. . com. . by montague . see e. . before . m. . com. . see cook. lib. e. . . cont . by moile and fitz. . h. litt. . accord . perk. . e. see e . com. . by harris . fitz. . b. of the acquittall . see cook upon litt. notes for div a -e see tit. intrusion . . h. . c. . see dyer h. . bockinghams . c. fitz. ● c. see . h ▪ . tit. livery stp. . . h. see . h . tit. leases . see time h. . after . h. . . by all . see . h. . before . . h. , . by babing . see . e . . . el. com. . cōtra . and see cokes books . . el. con. . magna cart. ca. . rast. ca. . see cokes books , & . e . after . see e. . before . see coks books . frowike lect. upon the stat . de praeroga tiva reg. . h. . h. . ca. rast wils . see coke upon lit of the licence e. . com . . by harris h . by brook lit. . see the act of this present parliament which in ables to plead the general issue & to give the special matter in evidence m. . e. accord . see n. . after . see h. . before . see coke litt. and the rector of chedingtons case . accord . finch . e. . . h. . by hank . see h. tit. done. notes for div a -e d. s. . h. . . e. . com. . h. . c. rast. heresie , . f. n. b. . notes for div a -e see h. tit. mannor . ds. h. . . by vav●our . h. . . by yaxley . & . by tremaile . e. . . by genny . e. . . by suliard . ske cokes books . h. . by moile , & e. . . p. cur. & perk. cont . see cokes books . st. . d. fitz. . see tit. gard● , & h. . after e. by choke stp. . see tit. leases . m. . m. . accord in casu mainwaring . see tit. leases . see h. tit. charters de pardon . see h. . before . see tit. leases . see coke upon litt. & baldw. case , lib. . e. . . by finch . m. . accord b. judgment . the end . see after tit. restore al primer action . e. . . cont . . ass ' . tr. . el. com. cont . see . m. . after . . e. . . by litt. h. . cap. see . h. . before . thorp accords , e. . . m. . h. . . notes for div a -e h. . . by keble . vavisour accord . . h. . . see coke , beechers case . magna chart. c. . h. . h. . by brudne● e. . . by wood , e. . com. . & . el. com. . see h. . after , & coke lib. and tit. acceptance . see h. . tit. attornment . m. . m. . accord . . h. . . . m. . com. . see . & e. . com. . see m. . com. . e. . fitz. abbe ● . see before , and see tit . acceptance , and h. after . see h. after : and h. tit . garde . fitz : . c. cont . fitz : . f. accord . h. . e. . accord . see before . see h. before . admitted p. . e. . in chancery . see h. before , and tit. acceptance . e. . plur fitz : . contr . lit. . see h. and h. before . goosan abbot . . h. . . by carel. & h. . . by lee. see before , and tit. acceptance . see coke upon lit. h. . m. . accord . see coke upon lit. h. . ca. h. . . see tit. intrusion . see m. . after : contra . see coke upon litt. see h. . see m. before , contra . h. . by brudnel . & e. . com. . m. . com. . h. . fitz. ley . litt. . h. . ca. . limitation . see . e. . . h. . stp. . time. h. . after contra . h. . . see after . see . h. . tit. tenures . and . e● . com. . h. . . by brisot . h. . . . h. . by davers . see . h. . tit. office devant . &c. el. com . by carus . see h. . tit. alienation . & h. . after . magna charta . cap. . ratt . tenures . stp. . see . h. . tit. discent sir john husseys case . see . h. . before , and h. . after . f. n. b. . c. see . h. . after . see . h. . tit. fenuces . stp. . see . h. . tit. demurrer in law. stp. . . m. com. . . el. com. see . h. . before . stp. . . e. . . fitx . l. see the extent of it . , h. , before , and . h ▪ . h. . before contra . h. . . mountague accord h. . c. rast. wards . notes for div a -e see ● h. tit. procedendo cont . e. . . ascue & markham accord . h. . . ▪ h. . . by rede . see h. & . e. . . h. . ca. . see h. & . e. . com. , . see h. tit. tenures . see h. tit . court-baron , & time. h. tit. suitor . see cokes books . see cokes rep. . h . . b. mortmain . . el. com. . . e ▪ . . by nele accord . . e ▪ . . by nele contra . . e. . . see . . e. . tis. devise . notes for div a -e see cokes rep. whelpdales case ▪ entries ? . h. . . per cur. . h. . . & . e ▪ . ▪ accord . see h. . after . h. . ▪ see h. . before . . h. . . see cokes rep. the countess of rutlands case : noble : by mariage loses her dignitie : in such case not noble by discent . fitz. . h. notes for div a -e see . h ▪ . tit. forfeiture . st. . . h. . cap. . see . h. . . kings & fineux accord . . h. . & . . h . . by bromley see . h . tit. livery . ▪ e. . cap. . . e. com. . see after . see . e. . before . . h. . . by prisot . see. m. . tit. commission . . h. . . by vavisor . . e. ● . by brian . see coke rep. case of discontinuance . see billing , . e. . . notes for div a -e see st. . c. see coke upon lit. & dyer econtra . . h. . cap. see . h . tit. extinguishment . . h. . . danby accord . see h . tit. remitter . & dyer . h. & . e. . com . per justiciarios . h. . & . e. . com by hales just. see . h . tit. demurror in law. , & . e. . com. . . . h. . cap. . rast , uses . . e . . . h. . . . . h. . . vavisor accord . see stp. . . e . com. . ècontra . see . h . tit. tail , contra . see . h . . by fisher. see . h . tit. discontinuance de possession . . e. . c. . . h . . by keble . h. . . by litt. abr ' of the ass. . h. . . by martin . . e. . . by thorp . fi●z . accord . . h. . . & . e . by hussey . . h. . . . e. . by litt. see coke rep. altonwoods case . time e. . accord . see h . tit. discontinuance de possession . & cokes rep. . h. . . by danby . sec . h. . before . e . . by danby . . h . . by keble . e. . . & . e . see cokes rep. communalty of sadlers case & tit. traverss &c. . h. . . . e . . . e. . ● . accord e. . . by brian . h. . . h. . . e. . com. . h. . . h. . . by wilby . see tit. titles . see . h. . fo . . by newd . & fo . . by brud . h. . . see cand. e. . . & d. s. . . . e. . . accord . see d. s. & e. . . by catesby that a prohibition lies . see el. com . h. . ca. . pre. re. ca. . stp. . & . e. . com ▪ . by montague contra . see h. . tit. traverse . see & e. . com . & . el. com . . e. . stp. . see e. . tit. done. h. . before . & . h. . tit. travers per &c. è contra . br. traverse per . praerogativa ▪ reg. see coke upon lit . h. . . contra per curiam , as i take it see . h . after . & dyer . see h. . before . & dyer . see m. tit. commissions . e. . . accord see h . . cont●a by hill. see h . tit. mainprize contra . fitz. accord . h. notes for div a -e contra p h. . b. quare imped . . the end . by bromley and hales serjeants see coke upon lit. h. . . by fitz james . see coke rep case of journies accounts . h. . . by nedham h . e. . in banco regis accord . . h. . . by davers . h. . fitz. ley. . notes for div a -e f. n. b. . l. magna chart. ca. . rast. det . to the king . see . h. . tit. stat. marchant . h. . by town send . lecture . e. see h. . . see . h. . . by fairfax . . h. . . contra . com. . . e. . . by knivet . see . h. . after . see . h. . tit. entre congeable . see. . h. . after . . e. . . contra . by haydon . see . h. after see h. . before . see h. . before . see . h. . before . n. b. see . h. . tit. entre . congeable . see . h. . tit. discontinuance de possession . . h. . . perk. c. st. a. . h. . & st. a. contra . perk. . b. see coke upon lit. see lit. sect. accord . . h. . see . h. . tit. parliament . . m. . com. . see dier . see cok upon lit. h. . ca. . p. . e. . acccord . e. . . fank . accord . see h . by brudnel . see h . tit. denizen & coke upon lit. see tit. judgement . see coke upon lit. . h . fineaux accord . & thor. . e. . . . h. . . . & e. . com . . notes for div a -e . h. . . h. . . by davers . st. . . h. . . by norw . & . e. . ca. . ● . h. . ass. . h. . by fitz. see h. . after . e. . brjan accord . h. . . accord . by the rereporter see h . before e. . com. * e. . . by finch . h. . . by keble : see time e. . tit. recognisance . h. . , . e. . com . . liber intrac . fo . h . e. . com. . e. . com. . . h. . . & . e . . h. . . br. accord . see coke upon litt. see . e. . tit. extinguishment . perk. . h. see coke upon lit. see tit. court baron , & mannor . notes for div a -e lit. . n. b. . . h. . . by townes . . h. . . vavi . sor accord . . m. . com . n. b. . & . e. . . by finch . contra . see time h . tit. formedon . see . h. . tit. patents . see . e . . by hussey . m. . h . accord in essex , & fitzh . in the dutchy chamber . lit. . . el. com . . westm. . cap. . rast. tail . see coke upon lit. & the . rep. see cook upon lit. and his rep. see m. . contra . after . cooke upon lit. & cluns case in his rep . m. . com ● . h. . before cont . h . see cooks booke , cluns case perk. d. westm. . ca. . rast. tenure . fitz. . a. ▪ e. . . by catesby . see tit. livery . h. . by rede . westm. . ca. . rast tenure see h. tit. mannor . e. . b. devise . . see e. . tit. estates . see h. . tit. conditions . see cook upon lit. m. . com. see cook upon lit. h. . ca. . rast. wills . see h. . el. h. . ca. rast. wills . see tit. pleadings . h. . . by keble stp. . e. . . by noting stp. . see cook upon lit. h . laicon accord . e. . ca. . see tit. age. h. . . see e. . after . see tit. prerogative . see . h. . before : and time e. . after . casus cooks and green. see e. . before . see st. . b. see h. tit. triall . see m after ; and so 't was adjudged , m. . m. . st. . b. see st. fo . . e. fo . . h. and fo . . a. e. . . rast. treason . see e. . before . h. . . h. . . by brook. e. . by lit. st. . a. see tit. corone , and treason . h ▪ fineux accord . d. s. , and e. . com. d. s. . see m. . com. . & h tit. enquest . notes for div a -e e. . by finc● contra in a formedon . . e. . fitz. verdict . . . m. . com. . see cokes rep. d. s. . . el. com . see coke upon lit. el. com . see h . before notes for div a -e ● . . a . e. . . b. waste n. b. . lit. accord . . e. . see . e. . after . see coke upon lit see time h. . before . & . h. . . by brian . . e. . finch accord . h. . . see coke upon lit . h. . . see dier . prot. accord . . h. . . . h. . . by prisot cont . regula vitæ the rule of the law vnder the gospel. containing a discovery of the pestiferous sect of libertines, antinomians, and sonnes of belial, lately sprung up both to destroy the law, and disturbe the faith of the gospell: wherein is manifestly proved, that god seeth sinne in iustified persons. by thomas taylor dr. of divinity, and pastour of s. mary aldermanbury, london. taylor, thomas, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a stc estc s this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) regula vitæ the rule of the law vnder the gospel. containing a discovery of the pestiferous sect of libertines, antinomians, and sonnes of belial, lately sprung up both to destroy the law, and disturbe the faith of the gospell: wherein is manifestly proved, that god seeth sinne in iustified persons. by thomas taylor dr. of divinity, and pastour of s. mary aldermanbury, london. taylor, thomas, - . [ ], , [ ] p. by w[illiam] i[ones] for robert dawlman at the brazen serpent in paules churchyard, imprinted at london : . printer's name from stc. the last three leaves are blank. reproduction of the original in the henry e. huntington library and art gallery. p. - mutilated; p. - from the union theological seminary (new york, n.y.). library copy filmed at end. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law and gospel -- early works to . - tcp assigned for keying and markup - aptara keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion regula vitae , the rvle of the law vnder the gospel . containing a discovery of the pestiferous sect of libertines , antinomians , and sonnes of belial , lately sprung up both to destroy the law , and disturbe the faith of the gospell : wherein is manifestly proved , that god seeth sinne in iustified persons . by thomas taylor dr. of divinity , and pastour of s. mary aldermanbury , london . numb . . . wherefore were ye not afraid to speake against my servant moses ? imprinted at london by w. i. for robert dawlman at the brazen serpent in paules churchyard : . the preface to the godly reader . what mr. luther in his last sermon at wittenberg observed , and foretolde , we see in these our dayes fully performed and accomplished : hee had observed thirty severall sects , and sectaries , raised up by satan in his time against that holy doctrine preached by himselfe ; all which had hee not beene able by the scriptures to have resisted , and refuted , he must have beene ( as himselfe said ) of thirty severall religions . among them he mentioneth the anabaptists , antinomists , libertines , servitians , &c. of all whom he foretold , that though now they ( saith hee ) by the power of the word , and by the vigilancy of godly teachers lye close and still ; yet will they be intent , and ready on all occasions to rise , and raise up their damnable errours to disturbe the peace of the church , and the prosperity of the gospel . and indeede accordingly have we observed the church of god in all times since , lesse or more infested with these dangerous sectaries , i meane the libertines , the professed enemies to the law of god , and to the holy obedience of it . against whom as st. augustine in his time wrote two books against the adversaries of the law : so mr. calvin dealt worthily in his time , in his booke intituled , against the furious sect of the libertines : and many other godly men since that time . let not us be offended that the spawne and succession of those lewd libertine sectaries are now issued forth in troopes amongst us , nor marvaile that the hatred of gods most righteous law prevaileth amongst a rude multitude , the sonnes of belial ; whom mr. calvin calleth a prodigious and belluine sect , furious and madded in their opinions , and fierce as unbroken coltes against whosoever would curbe them , and straiten the reines of their unbridled licentiousnesse . but rather let us observe , . satans malice in sowing tares where good seede was sowne , and that in the lords field . . gods just permission of so many schismes as tares rising with the graine ; and therein revenging the contempt and disobedience of his word , he hath sent strong delusions , that many should believe lies , who received not the truth in the love of it . . the levity , wantonnes , and instability of unsetled gospellers , that are in every new fashion of opinion , with every new man that hath the tricke of molding novell conceits against received truthes ; that if thirty new-minted fansies should rise up in their age , they were like enough to be of thirty religions , and of every last praise god , that the truth was never truly preached till now . . let us excite our selves to the love of truth , to the hatred of errour , and to the fencing of our selves against seducers ; importuning in serious invocation the god of truth , not to punish our wantonnesse in profession , with taking the word of truth utterly from us : and thus shall we temper poyson to a remedy , and turne that to an help which the enemy intends for our hurt . for the setling of mine owne people ( some of them looking that way ) i delivered lately some grounds , both to enforce the rule of the law upon the regenerate , as also to refute the contrary errour of our new audacious antinomists , and libertines , and famelists , who as the olde manichees and marcionists , abolish the whole law , and that wholly . one preacheth , that the whole law since christs death is wholly abrogated , and abolished . another , that the whole law was fulfilled by christ yeares agoe , and we have nothing to doe with that . another , that to teach obedience to the law of god , is to teach popery , and to leade men into a dead faith . another , that to doe any thing because god commands us , or to forbeare any thing because god forbids us , is a signe of a morall man , and of a dead and unsound christian. and upon these hollow and deceitfull grounds doe these masters of errour bottome a number other ridiculous conceits , which yet they deliver as oracles , and anathematize whosoever shall not so receive them . as . that the law being abolished to the justified , god can see no sinne in them ; for hee can see no law transgressed . . that the regenerate cannot sinne ; for where is no law , is no transgression : according to that luciferian principle rife among them , be in christ , and sinne if thou canst . . that being in christ , they are christed with christ , as pure as christ , as perfect as christ , as farre beyond the law as christ himselfe : the right brood and spawne of the olde catharists and puritans . . that the law is not to bee taught in the church , and they are legall preachers that doe so , and preach not christ. . they hence disclaime all obedience to the law , and raile at the precepts and practise of sanctification , as good for nothing , but to carry men to hell ; and cry out on the ministers as popish , and as having monks in their bellies , who set men on working , and doing , and walking holily . . they renounce and reject all humility , confession and sorrow for sinne , they scorne fasting and prayer , as the seeking not of god , but of our selves . one saith , that neither our omissions , nor commissions should grieve us : and another , neither doe my good deedes rejoyce mee , nor my bad deedes grieve mee . they deride and flout the exercise of repentance and mortification , and upbraid such as walke humbly before god. what say they ? will you repent all your dayes ? and , you cannot sinne , but you must repent an whole fortnight after . nay they are set upon so merry a pin , as they can thinke of their former sinnes with merriment . i am glad of my sinne ( saith one ) because it hath drawne me to christ : and why doest thou not mourne that by those sinnes thou hast pierced christ ? . they reject the saboth as iewish wholly abrogated with all other commandements ; as one of them professed , that were it not for offence of men , he would labour in his calling on that day as well as any other . these with many other consequents of the same stampe , all tending to loose the conscience from all awe of god , from all care of duty , from all feare of sinne , and judgement to come , ( though they walke in all licentiousnesse , and prodigious courses ) are such as a right bred christian cannot but tremble at ; and were there but a few droppes of modest blood in their veines , the masters of such lewd and libertine opinions could not but blush at : who cannot answer before god ( without a sea of teares of tim●ly repentance ) the mis●●a●ling of simple men ( and women especially ) into such desperate wayes . my intention being onely to propound the grounds of naked truth , ( which as a right line is the rule of it selfe , and of that which is crooked ) and that to my owne , in my owne plaine and ordinary manner ; it was farre from my thought to make my labour more publicke , till partly the scorne and insolency of these schismaticall spirits on the one hand , and partly the importunity of many godly both ministers and private persons thrust mee into a second survey , and review of what i had delivered . they said they knew some drawne off their opinions by hearing the doctrine preached ; and doubted not but if it were made more publicke , it would be much more usefull to the church , especially seeing these seducers creepe into such corners of the citty and country , where are weakest meanes of resistance , whose strongest hopes and holdes lie in the ignorance and too credulous simplicity of their proselites . i made many objections to my self , some to them : i knew this argument soundly and judicially handled already by others ; that it might more profitably and sufficiently be undertaken by some other better furnished with gifts and leisure : how little i could expect the satisfaction of others in an argument of this moment , who in the throng of businesse , and burden of many weekly exercises , could scarce gaine thoughts or time to satisfie my selfe : how unsafe to thrust into a publicke quarrell : how importune and lawles the adversaries , who holde not themselves countable to god , for any wrong they doe unto man. but yet persuaded to deny my selfe for the service of god and his church , and that the seasonablenesse of the treatise might adde an advantage unto it , and that it might be some stay to the teachable untill a more elaborate , and compleate worke might by some other be prepared : i yeelded unto the publication of that little which i had done ; animating my selfe with the same arguments that wise and prudent generalls use to encourage and hearten their souldiers withall , when they are to joyne issue with the approaching enemy : and they be foure . . the goodnesse and justice of the cause , which is just , and honourable ; for we take part with god , and fight his battell in the quarrell of his most righteous law. . the victory is easie and certaine , unlesse god and his law can be conquered : and who ever rose up against god and prospered ? . the quality of the adversaries must adde courage unto us , christians in name , but siding , and sorting with the damnable heretickes of ancient times : of whom i will not speake what they are worthy to heare , but what i may with judgement write , and whom the sequell discourse will shew to be of proud , furious , and audacious spirits . . the assurance of divine assistance : for are the adversaries such ? certainly then is their strength gone : god's spirit is gone from them , for he teacheth the humble , and sendeth the proud empty away . they pretend the spirit , and outboast all men , that they are taught , and led , and moved by the spirit , and are past all motives and persuasions of man or meanes : but god's spirit is a soft , sober , calme and quiet spirit , both in christ the head , and in all his members : and that furious , factious , railing and quarrelsome spirit of theirs , is that uncleane spirit of satan , usually breathed into hetickes and enemies of the truth , and of the spirit of truth : by whose onely assistance wee shall shape them ( not as they say in scorne , a garment after our owne fashion ) but such an answer out of the scriptures , as shall not hide their nakednesse , but uncover their ignorance , emptinesse and folly , and vindicate the holy law of god from their schismaticall cavills , and hereticall contempt . and why not ? for doe we exclaime against the papists for blotting out the second commandement , as sacrilegious persons ? and against the anabaptists for denying the fifth ? and shall we be silent at these sectaries , whose blindnesse hath made them bolde to blot out all the ten at once ? which although they were writen with god's owne finger , and that in tables of stone , yet these mad men presume their nailes so steeled , as that they can scratch them out all at once , and yet god see no sin in them . i shall speake unto them all along the treatise ; and now will onely desire of them , or rather of god for them these two things : first , that my reproofe may be a medicine unto them ; at least if it be conceived a wound , yet not of an enemy , but of one that out of love desireth to leave them a testimony of faithfulnesse : and the other is , that the lord would worke in them a timely change both of opinion & practise ; so as they may no longer turne the grace of god into wantonnesse and liberty , but get out of this snare of the divel , wherein they are held to doe his will , ● who in every thing opposeth , and resisteth the righteous will of god re●vealed . but to you that are desirous to walke in the olde and good way , and are not yet infected with this spreading gangrene of licentiousnesse , i shall be bolde to give some advise for prevention . as . to looke carefully to your precious soules , which satan many wayes beleaguereth : let not pretences of faith in christ loose you from duty towards god ; catch not at ease , or presposterous and overtimely comforts , wherein the impostour hath you at advantage . . looke well to your estates , and outward meanes , lest these impostours make a prey , and advantage on you , as they have done on some already , who have confessed that these pedlars have basely inveagled from them even to the very cushions of their windowes : for the apostle observed not in vain , that through covetousnesse they make merchandise of unwary soules . . suspect such men as come with a strange language , and unwonted phrases and manner of speaking : for errour is a fruitfull mother , yet is she ashamed of her brood , and is willing to cover and apparell them with philosophicall and metaphysicall phrases ; and so these men are willing we should seek out the brats of their owne braine , in the bushes and thickets of intricate discourses , and in the meanders and laborinths of uncouth language , wherein they desire to be admired , rather than understood : not unlike their predecessours in calvins time , of whom hee saith , that they were like gipsees , that had gotten a cheating , and canting language proper to themselves ; and this is one of the first principles of their cousening trade . surely the ministery of christ , and his apostles , and of all godly teachers , is to cast off all cloakes of shame , and to walke not in craftinesse , neither to handle the word of god deceitfully ; but in declaration of the truth , to approve themselves to every mans conscience in the sight of god. these cleane contrary studie how to involve things in darknesse , and to obscure and extinguish ( if they could ) the light , and devise to speake as in the riddles and oracles of old , in ambiguous , and new-minted phrases of their owne ; as if the phrase and expressions of the scriptures were onely to be rejected in opening of the mysteries of scriptures . but leaving these bolde impostours to set the holy ghost to schoole to teach him to speake , wee acknowledge wee have not onely a rule of doctrine prescribed us in the scriptures , but also a rule of speaking , unto which we must frame our selves ; and utter wholesome doctrine , in wholesome words , and words of understanding : and all other lofty , arrogant , and subtle manner of speaking , so as that which is uttered cannot be well understood , the apostle rejects it as an idle beating of the ayre . . nourish the grace of humility , for god teacheth the humble : beware of curiosity and affectation of novelties ; be wise to sobriety , and thinke it an high wisedome to be established in ancient and received truthes . the ficklenesse of hearers , and unsetlednesse in the grounds of holy truth , together with the wantonnesse of opinions , have opened a wide doore to impostours : and while for want of judgement men are ready with salomons foole to beleeve every thing , all the labour and diligence of able and godly ministers is too weake , to keepe multitudes from running after the ministers of satan , furnished with all arts to deceive , and to cheate them of the truth which is according to godlinesse . against whom while i endeavour to establish others , i may seeme to forget my selfe , and that i must incurre many censures and contempts from this lawlesse generation of men ; but my labour is with the lord , and my reward is my conscience of well-doing : i shall contemne their contempt , love their persons , hate their errours , and studie while i am , to be as serviceable to the church , and the faith once given to the saints , as i can . chap. . containing the ground of the following discourse and dispute , out of rom. . . for ye are not under the law. in the words of the apostle are to be enquired , . what is meant by the law : namely , the morall law in the ten commandements , containing our whole duty to god , and to our neighbour . . what it is to be under the law : namely , not under the rule and obedience of the law , for our apostle looseth no christian from that ; but christians are not under the raigne of the law , by the raigne of which , sinne raigneth unto death . this being the apostles reason , that the raigne of the law , puts them under the reign of sin . . who are these that are not under the law ? yee : that is , beleevers , justified and sanctified persons , that are dead to sinne , and alive unto god in iesus christ our lord , verse . and onely these , seeing the naturall man is yet in his sinnes , and under the whole power of the law in the rigour and extremity of it . rom : . . we are delivered from the law , being dead unto it wherein we were holden . but who are these ? those that serve in newnesse of spirit , not in oldnesse of letter ; that is , which now serve god in a new spirituall manner , excited and wrought by the spirit ; and not according to the olde corruption of our nature before grace , nor according to the externall letter of the law , which onely breedeth externall actions . and that it is the priviledge of beleevers appeareth by these reasons . . because christ was made under the law , to redeeme those that were under the law , that we might receive the adoption of sonnes , galat. . . the reason is good ; christ was under the law , therefore christians beleeving are not under it ; and , christians are redeemed from being under the law , and therfore are no longer under it . . as many as are under the law , are under the curse . but it is the priviledge of beleevers , not to be under the curse ; for they that are of the faith of abraham , are blessed with faithfull abraham . therefore they are not under the law. . it is the priviledge of beleevers , to receive the spirit of christ. rom. . . as many as are christs , are led by the spirit of christ : and therfore they are not under the law. gal. . . if yee be led by the spirit , yee are not under the law . . it is the priviledge of beleevers to have eternall life , and the inheritance , by promise , and not by the tenour of the law ; and therefore all they , and only they are free from being under the law. gal. . . if the inheritance be by the law , it is no more by promise . but god gave it to abraham by the promise . were beleevers under the law , they should have the inheritance by the law : but they have it not by the law , but by promise ; and therefore are not under the law. for the law and the promise in the cause of righteousnesse , and life , will not be agreed , no more than light and darknesse , fire and water , whose natures are most abhorring . quest. but what or wherein is this priviledge of not being under the law ? answ. this priviledge will appeare the clearer , if we consider the danger of being under the law , in foure things . first , in that the law wrappeth every sinner in the curse of god , both in this life , as also in the life to come ; so as hee is no where secure , but lyeth naked to the curse meeting him at every corner . the law is a thunderbolt to blast him in his person , in his estate , in his name , in his goods , in his calling , in his comforts , in all his enterprises , and occasions ; the sentence is passed upon him , and where ever he is , hee is in the way to execution . it would daunt , and astonish the hardiest , and stoniest heart , to heare the sentence of death pronounced upon it for violating the law of his prince and country . it would marre all his merriments to conceive hee were presently to suffer but a temporall death for offending the law of man. and it would much more spoyle the pleasure of sin , if the sinner could with an hearing eare , heare the sentence of eternall death denounced by the law , against soule and body , for violating the righteous law of the eternall god. if an house were ready to fall upon a mans head , how would hee bestirre himselfe , and winde every way to hye himselfe out of the danger . but the burden of the law is more intollerable than the weight of all the sands , and mountaines in the world ; and this oppressing weight is ready to fall on the head of every sinner : which how should it amaze , and affright them , and make them restlesse , till they bee gotten without the reach of the danger . . the law in the raigne of it shuts up heaven , ( which receives no trangressour ) and setteth the gate of hell wide open upon the sinner ; and not onely casteth him into hell hereafter , but bringeth an hell into his conscience before hell ; that if his heart be not dead within him as nabals , it is restlesse as the raging sea , tormenting him for the present with hellish feares , dreadfull horrours , and selfe-accusing ; the biting and gnawing of which worme is the very entrance into hell , and a beginning of the eternall torments of it : for the avoiding whereof many wicked men have chosen death , and hastned their owne execution , as farre more sufferable and easie . . the law in the raigne of it , thrusts the sinner under the power of the divell , as a condemned malefactour into the hand of the executioner , to be ruled at his will. now must hee blinde his eyes , and as it were by an handkerchiefe over his eyes , hee must pinion him , and binde him hand and foote , and by effectuall delusions prepare him to his death . and what is more just , than that he who will not be led by the spirit of god , should be given up to be ruled by the divell . . the law in the raigne of it , addeth a sting , and sharpneth the point of all afflictions , which by it become the beginning of hell , and properly curses ; retaining their naturall acrimony and poyson ; and are as the red sea , even a well , and a devouring gulfe to drowne the egyptians , which same sea is a wall and paved way to save the israelites . it armeth all gods creatures against the sinner , who are ready in their severall rankes to revenge their lords quarrell , till he enter into that new covenant ; of which see hosea . . it is the law that makes death a doore to hell , and a downefall to eternall perdition : the law is mercilesse , and knoweth no other condition , but doe or die : so as if a man dye under the law , there is no expectation but of death without mercy . quest. . but how may a man get from under this dangerous estate ? answ. by the attaining and exercise of three saving graces . first , faith in the son of god ; which apprehendeth christs righteousnesse for the fulfilling of the law. . faith establisheth the law ; both because it attaineth in christ remission of sinnes , and so remission of the rigour of the law , as also an imputation of that full righteousnesse which the law requireth . . faith is the law of christ , by obedience of which law every beleever must live , and is answerable to the obedience of the whole law. the second grace is repentance , and timely turning unto god ; this helpeth a man from under this danger . . in that it flyeth from the dreadfull sentence of the law , and knocketh at the gate of mercy ; it seeks and sues for pardon , and will not give over , till it have got a gracious answer , that all the sins are remitted . . in that it wipes off all old scores , repealeth all the actions of the law , getteth all sinnes cast into the bottome of the sea , never to be remembred any more : nay it gett●●● not onely sinnes 〈◊〉 , but ●ven the law it selfe 〈…〉 ●ort buried to the penitent person : as moses body , and is unknowne where it was laid . the third grace is new and inchoate obedience to the law , which is a kinde of fulfilling it . for . it is a worke of the spirit in the regenerate , who hath written the law in their hearts , and made them of rebells and enemies to the law , and the righteousnes of it , lovers of the law , and lovers of obedience . . it hath the promise of acceptance , and is accounted as full and compleat obedience to the law : and themselves now called perfect and undefiled in the way . god looketh not now on their obedience as theirs , but as on his owne worke in them , nor approveth the person for the work , but the work for the person . quest. . how may we know a man gotten from under this da●ger of the law ? answ. by sundry notes or markes . first , by subjection to the gospel in the power of it ; when a man contenteth not himselfe with a title of faith , or a shew of profession , or a forme of godlinesse , or a name that he liveth ; but groweth in the knowledge and obedience of the gospell : for would a man be saved , and obey neither the law nor gospell ? no , no , the apostle concludeth him under the whole power of the law , that knoweth not , nor obeyeth the gospel of christ , thes : . . . by thankefull walking worthy of the gospel : this man knoweth that all the regenerate are gods workmanship ; and that the end of all our freedome from sinne , is the free and cheerefull praise of god : and therefore he cannot but be thankfull to christ his deliverer from under so hard and cruell a master as the law , which did nothing but accuse , accurse , terrify and condemne him : now will he highly prize his freedome , and glory in his happy liberty : now will he live to christ , and for christ ; and ascribe all his happinesse unto him , as doth the apostle for that happy victory over sinne and the law , cor : . last : and rom : . , . . there is now peace of conscience , which formerly ( if waking ) did bite and sting ; but now excuseth and acquitteth . i meane not here a sencelesse or brawny conscience , the issue of a dead conscience ; which like a dead man , lay him under a church or mountaine , he is quiet , feeleth nothing , complaines of nothing : so lay the secure sinner under the intolerable burden of innumerable sinnes , his conscience is quiet , and complaineth not . but this peace followeth not from unfeelingnesse , but from feeling sin pardoned , from perceiving sin subdued , and from discerning sinne repented of , striven against and conquered : for the spirit of grace is ever a spirit of mourning , and from that sowing in teares ariseth the harvest of joy . . hee that is got from under the law is now a law to himselfe , that is , he willingly submitteth himselfe to the rule and obedience of the law : the way to escape the yoake and coaction of the law is to become a free and cheerfull observer of the law. which standeth in three things . . in a care to doe the duties which the law requireth , and in such manner as the law doth require , so neare as we can , psal : . . rom : . . . in huhumility and griefe that we are so short of the law in our best duties ; that when wee have done all we can , we are so unprofitable , and that even all our righteousnesse is as a stained clout . . and all this out of love of god , and of obedience , not for feare of hell or judgement : whence gods people are called a willing people . psal : . . this must every beleever aime at ; for hee that willingly liveth in the breach of the law is certainly under the curse of it . . a man gotten from under the law , giveth up himselfe to the leading of the spirit : gal : . . if yee be led by the spirit , yee are not under the law. now to be led by the spirit is , . to suffer the spirit of god to guide the minde , with knowledge , for he being the spirit of illumination , his office is to lead the saints into all ●●uth . . to allow him to carry and order the heart , will , and affections with cheerfulnesse , and constancy in all good duties , whence hee is called a free spirit , not onely because he worketh in himselfe freely , and as the wind bloweth where he will ; but from his powerfull effect in the saints , who by his strong and mighty gales are caried strongly in their motions of grace and obedience . this finde and challendge thy freedome from under the law. but if the spirit that rules in the world guide the course , or satan carrie a man into the foule lusts of uncleannesse , worldlinesse , voluptuousnesse , malice , or the like , as the swine into the lake ; this man is under the whole curse and raigne of the law , because he is under the power and reigne of his sinne . . there is joy and thankfulnesse for others freedome as for a mans owne : he that is truly converted is unfeignedly glad for the worke of gods grace in others , rom. . . god be thanked that yee have beene the servants of sinne , but now ye have obeyed the forme of doctrine , &c. eph. . . phil. . . a godly pastour with paul wisheth all as himselfe , except his bonds . a godly parent will rejoyce to see his children to walk in the truth . a father or husband cannot content himselfe with his owne safety from a deadly danger , and see his wife and children left in it still . a godly master as ioshua will have all his house serve the lord with himselfe , and will not endure in his family , a wicked servant , a vassall , and slave to the divell , and sinne ; but will pull him out of the fire or water , or turne him out of doores : yea every sinner converted himselfe , wil strengthen the brethren , as peter , and david , psal : . . by these notes may a man try and discerne whether he be yet under the law or not . chap. . explaining the apostle , and shewing how farre the beleever is from under the law. having shewed that it is the priviledge of justified persons not to be under the law ; we are now in the next place to limit this proposition of the apostle within his own bounds ; which ancient bounds while our libertines remove or break downe , they open a sluce or floodgate unto all loosnes and licentiousnes , both of opinion , and practise . for the right understanding of our apostles meaning , we must consider the law two wayes . first , in the substance of it : or , secondly , in the circumstances or appendices belonging unto it . the substance of the law standeth in five things . . the law in the substance of it , is an eternall doctrine , shewing what is good , what is evill , never changed , never abolished , never abrogated , ( no not by christ ) but is as a beame from an eternall sunne ; and the sunne being eternall , how can the beame but be so also ? and thus beleevers are still under the teaching of it ; without which no man can know what god is , nor what is his worship , nor what is the manner of his worshipp , nor what duties wee are to performe , nor how to performe them , either to himselfe , or to our brethren . . the law in the substance of it , is a revealer of sinne . rom. . . by the law commeth the knowledge of sinne ; and every sinner , yea even beleevers are still under the rebuke of it , so long as in many things they offend all , and stand in need of the law , both to worke them to humility and repentance after new sinnes committed , to worke them to a feare and reverent awe of god , and to drive them out of themselves unto christ , for recovery out of their daily infirmities ; for were there no law , there were no transgression , nor discovery of it , rom. . . . the law in the substance of it is a rule of good life , and as the gospell teacheth how to beleeve , so the law teacheth how to live : the law is as the touchstone to try what is gold in us , and what is drosse ; it is as the line and plummet to shew what is straight , and what is crooked : and thus is under the direction of it both for matter and manner of all actions which please or displease god. for as the law civill is the rule of civill life , so gods law is the rule of godly life : and as a good workman that is master of his trade , will have his rule ever at his back , or in his hand , to measure every peece of his worke , that it may stand levell and square ; so even the beleever hath as continuall need of the rule of the law , which ( the apostle saith ) is profitable for doctrine , correction , reproofe and institution even of the man of god. tim. . . . the law in the substance is the expresse idea or representation of the law of nature written in our hearts in the time and state of innocency , and the naturall principles of it cannot be quite extinct , or shaken out of the heart of the worst man ; for the very heathens had it written in their hearts , rom. . . and much lesse can it be shaken out of the beleever , in whom it is renewed and rewritten in their spirits by the finger of gods spirit , ier. . . nay the beleever cannot chuse but be framed to a cheerefull and spirituall obedience of it , so long as the spirit performeth that office in them . . the law in the substance of it , promiseth a righteousnesse , and eternall life to all the performers of it : and no beleever expecteth another righteousnes , nor another life , nor on any other condition , than the same in the law ; onely in another manner and meanes the same life must be attained , by our ful performāce of the law , though not in our selves , but in our surety ; and by the same righteousnes , not inherent in us , but imputed unto us . so as by this former consideration we see that the beleever is still under the whole substance of the law. and now in the second place seeing the justified person is so many wayes under the law , how saith the apostle that the beleevers are not under it ? to resolve which point , we must now consider the circumstances and appendices of the law , which make it an heavie yoak , an intollerable , and insupportable burden , in regard whereof the beleever is not under it . these appendices of the law are seaven . first , one consequent of the law is , that it yoaketh every man to a personall performance of it ; for himselfe must doe all things that are written in the law , to live in them . and this is now an impossible obedience , because of our flesh . but christ having perfectly fulfilled the law for the beleever , and becomming the end of the law for righteousnesse to every one that beleeveth : in this regard they are not under this rigour of the law , which knoweth no surety , no mediatour , no imputed obedience , but in every mans owne person ; and yet the gospell remitteth no part of the substance of the law , which requireth perfect obedience : only it tendreth it in the person of the surety , and gets acceptance when perfect obedience is done for the person , though not by him . . another appendix of the law is , that this rigorous exaction of personall , and perfect obedience is urged upon paine of eternall death : for , cursed is every one that continueth not in all things that are written in the booke of the law , deut. . . and gal. . . now the beleever is not under this co●sequent of the law : for christ was made a curse for us , and redeemed us from the curse of the law , gal. . . and by him being justified by faith , we escape this damnatory sentence , rom. . . but it is one thing to be free from the curse of the law , another from the law it selfe : and it is no good sequell , we are free from this sanction of the law ; therefore from the substance . . another appendix of the law is , that it urgeth and forceth it selfe upon the conscience with feare and terrour ; for as was the manner of the lawes delivery at the first , so it still thrusts it selfe upon the sou●● by coaction and constraint . a●● thus the beleever is not und●● the law ; for the grace of 〈…〉 empteth him from the rigorous exaction of it , and frameth his heart to a willing , and cheerefull endeavour in obedience ; for what the law prescribes to be done , it helpeth in the doing of it : and as christ himself became under the law not forced or coacted , but freely ; so is now the christian. but this being but an adjunct , shall we argue from removing an accident , to the remotion of the subject ? or because we are not under the law as a rigorous exactour , and terrible revenger , therefore we are not under it as a righteous commander , and holy conductour ? the consequent of the law is , that it acknowledgeth no justification or life , but by com●●eat obedience ; no life or sal●ation must be expected by the ●w , but by keeping it wholly 〈◊〉 exactly . and thus it is an impossible yoake ; for by the workes of the law no flesh can be justified , rom : . . so as now the beleever is not under the law for justification , unto whom christ is made righteousnesse , and whose perfect obedience is imputed , rom : . . but it is no good argument , that because the law is fulfilled by christ , it is therefore abolished by christ : surely every simple man can distinguish betweene accomplishing and abolishing the law : nor it will not follow , that because the law cannot justifie , therefore it cannot instruct , guide , or edifie . the consequent is , that the law is the vigour and strength of sinne ; that it arraignes , and condemneth the sinner , and is the minister of death , cor : . . but there is no condemnation to those that are in iesus , christ , rom : . . for that heavie sentence of the law is transferred upon christ himselfe , and carried off the beleever . but it will never hold weight or water in argument , that because a beleever is freed from the damnatory power of the law , he is free therefore from the mandatory and directory power of it . the consequent or appendix of the law is , that thereby sinne is excited and provoked by our owne corruption rebelling against the law , rom : . . which is not by the fault of the law , which remaineth holy , just , and good , v. . but by our wicked nature , which is more violently carried to that which is forbidden ; even as an untamed colt , the more it is hampered , the more mad and stirring it is . but the beleever is not thus under the incitation of the law , who by grace is in great part freed from this reluctation and resistance , and by the same grace made tractable and willingly subject to the law , which they discerne to be so concordant , and a very counterpaine of the holinesse and justice of god himselfe ; and thinke themselves so farre from being loosed from the law by the doctrine of grace , that they are faster tyed to the obedience of it . the and last appendix of the law , is to consider it as the law of moses , and in moses hand given to the church of the iewes ; in which respect it had many circumstantiall references to that people , and many accessories in the administration towards them ; besides some strictnesse , rigour , and terrour to that people under rudiments : in regard of which , beleevers in the new testament are not under the law as it was in moses hand ; but sundry references and circumstances , as suppose , time , place , persons , tables , testament , manner , measure , terrour , rigour are altered , and changed in the church since christs death . but it will prove no good reason , that because an heire in minority is under tutours and rods , therefore he may being come to yeares live as he list , and become a lawlesse man : or that because the law as given by moses to the church of the iewes is in some circumstances altered , therefore it must be in the whole substance of it abolished and that wholly : or that because the church of the olde testament was under a strait law , therefore the church in the new testament must be under none . the summe of all is comprised in these three following conclusions : . that the regenerate are never sine lege , that is , without law : of wicked men is said , that they are lawlesse , and described to be disobedient , ungodly , sinners , unholy , prophane , the genuine epithites , and right characters of our late anomists and antinomists ; but the regenerate are no such . . that the regenerate are not ( as our text saith ) sub lege , not under the law : namely in respect , . of iustification by the law : . of condemnation by it : . of personall and perfect obedience , which ch●ist in their stead hath undertaken , and performed : . of coaction and constraint , from which the spirit of liberty hath freed thē in great part : . of the sundry accessories of moses his administration to that people to whom it was delivered : in these regards , and some other they are not under the law. . that the regenerate may be truly said to be in lege , that is , in , or under the law , or within the compasse of the law ; in respect , . of the doctrine , rule and instruction of it : . of their subjection unto it , who frame their lives secundum legem , according to the law : . of the spirits inscription , who writing it in their hearts keepes them within the compasse of it , and holdeth them in the respect and cheerfull obedience unto it . and thus we have cleared the meaning of the apostle in this , and other phrases of the like sound , ye are not under the law. chap. . proving beleevers under the rule and direction of the morall law. now because the sonnes of belial are come out , and tumultuously are risen ( as did the heathens ) against the lord , and his most righteous law , saying , let us break these bonds , and cast these cords from us ; for we are under the teaching of grace , and under the rule of the spirit , all our worke is done to our hand , and we have nothing left for us to doe , and therefore the law to us is as the seven green cords on sampsons armes , which he brake off as a thred of tow when it toucheth the fire , and our selves as loose , and at liberty from it , as he was from them ; for the whole law is abolished to us wholly . therefore we are to prove against them , that true beleevers have both a true use of the morall law , and besides their lively faith , wherin they have received the spirit , have need of the directions , and doctrines of the morall law , for the performance of the duties of it : and that by these reasons . if the same sinnes be forbidden after faith as before , then is the law in some force to beleevers . but the same sinnes are forbidden them after faith as before . and therefore the law is in some force to them . the proposition is cleare , because the law onely discovereth and revealeth sinne , as the gospell doth the remedy . the assumption is also manifest , because the law is an eternall truth , and is never at agreement with any sinne in whomsoever . concupiscence before faith is sinne , and no lesse sinne after faith in the regenerate : davids murder , and adultery were sins after faith ; and the same man that beleeved in god , committed adultery with bathsheba . object . these were foule sins in themselves , but not in him because he was justified . answ. then nathan was deceived in saying , thou art the man : and david , when he said , i have sinned . had david sinne after faith ? then was david under a law for obedience : for every sinne is the transgression of the law , and where no law is , can be no transgression . the like of peter in the new testament apparantly a beleever , for christ prayed that his faith should not faile ; yet after that fell into those foule sinnes against the law , rash swearing , and false swearing , and cursing himselfe ; which were foule sins in him , as well as in themselves ; why should he else goe out , and weepe bitterly ? peter , as full of shifts as he was to save his skin , was to seeke in this shift , to turne off all his sinne , and sorrow at once , that being a beleever , and in the new testament , the law had nothing to doe with him . this argument our novatians and famelists can by no other shift avoid , but by flying to a perfect purity in themselves : for this is a dangerous , and desperate principle of their catechisme rife in the mouths of their novices , be in christ , and sinne if thou canst ; and is very coherent with their other tenents : for were the morall law indeed wholly abolished , why should they not worship false gods , sweare , breake the saboth , rebell , kill , whore , steale ? what should hinder them from rayling , and reviling all ministers and people , besides their owne sect , as in a dead faith , as onely morall men in state of death ? all this is no sinne : abolish the law , and thou maist say , sin if thou canst . but oh vaine men . can david sinne , and for his sinne his flesh tremble with feare of gods judgments ? can peter at the side of christ sinne , and that after so many warnings of christ himselfe ? doth paul know but in part , and after faith find a law in his members rebelling against the law of his minde ? and that after grace received , the good hee would doe , hee did not , and the evill hee would not doe , that did hee ? and are you in so high a forme beyond these worthies , that you cannot sinne if you would ? ponder a little these places of scripture and if you be still mad of your perfection , i will say of you as ierom of your fellowes ; you had more need of physick to purge your braines , than perswasion to informe your judgements . eccles : . . there is not a just man on earth that doth good , and finneth not . kings . . for there is no man that sinneth not . object . no ? hee that is borne of god sinneth not . answ. the apostle saith not simply and absolutely that he hath no sinne , or sinneth not ; but hee sinneth not industriously , hee makes not a trade of sinne , he sinnes not as the wicked doe , nor sinneth not in raigning sin , nor sinneth unto death , without returne and repentance , because the seede of god abideth in him , and destroyeth in him the worke of the divell . prov. . . who can say , i am pure from sinne ? who ? i can say so , and i can , saith every libertine ; my sin may be sought for , and cannot be found ; and mine , saith another , is washed off , that it cannot be seene ; and mine , saith a third , is as a bottle of inke dispersed in the sea , and not to be discerned . and indeed thus it is in the justified in respect of gods account , and imputation ; but while they speak so magnifically of themselves in respect of the presence of sinne , they onely blow up their bladder bigger , which all the while is swelled up but with stinking winde and emptinesse . but they would have some places out of the new testament , as men beyond the reach of the olde . and so they may . iam. . . in many things we sinne all : we all ; all apostles , all christians ; sin , that is , transgresse the law ; in many things , by daily failings and errours : and therefore all we in the new testament , since christs death , though we be justified by faith , are under the rule and obedience of the law ; because we sin in many things . ioh. . . if we say we have no sinne , we deceive our selves , and there is no truth in us . wee : who ? the apostle speaketh of carnall men , say some of the libertines : as if the apostle was a carnall man : but the former verse expresseth who they be that have sinne ; those that walke in the light ; those that are in communion of saints , and have fellowship one with another ; and those that are justified and sanctified , whom the blood of iesus christ his sonne hath cleansed from all sinne . if the same duties be required of all after faith as before , and every conscience bound to the performance ; then the law in the whole use is not abolished to beleevers . but the first is true : and therefore the second . the former appeares , because where any duty is commanded , there the rule of that duty is implied : and this rule is the morall law , which bindeth all men to all duties of it both before and after christ , being an eternall measure of all that is right or crooked . that it is a rule of duty before christ , they deny not ; and that it is a rule of duty since christ , i make it plaine thus . . because christ himselfe did confirme , expound , establish and fortify the law by his word and authority , which was the scope of his large sermon upon the mount , in mat. . . and chapters : which had it beene to be utterly abolished , he would rather have declaimed bitterly against the law as our antinomists doe , & have rather commended the pharises for weakning it by their glosses ; than have vindicated it , and restored to the full strength and power of it . . our lord not onely confirmes it in it selfe by his doctrine and life , but also in the conscience of every christian. matth. . . he that breaketh the least of these commandements , and teacheth men so to doe , shall be least in the kingdome of heaven : but he that shall teach and observe them , shall be called great in the kingdome of heaven : that is , shall be honoured , and counted a worthy member in the church of god. no , saith the libertine , we must not teach the law in the church ; and those that doe are legall preachers , that lead men into a dead faith ; we must doe nothing , because god commands us : nay we not onely reverse the least of them , but all at once , and teach others so to doe . see now if fire be more contrary to water , or christ to belial ; than christ to these sonnes of belial , that will be under no yoke of the law , no rule , no obedience . . the apostles after christ bring converted christians every where to the rule of the law , and frequently alledge the law to urge the duties of it : and therefore the law ceaseth not to be the rule in the new testament ; for if it had , they would not have pressed exhortations by the law. rom. . . dearely beloved , avenge not your selves : why ? for it is written , vengeance is mine . rom. . , . pressing the duty of love , the onely debt beseeming a christian , he urgeth it by this argument ; because , love is the fulfilling of the law ; and repeateth all the commandements of the second table , not to repeale or reverse any of them , but to confirme them as the rule still , and comprehendeth them all in this , thou shalt love thy neighbour as thy selfe . ephes . . children obey your parents ; and presseth the duty from the law ; for this is the first commandement with promise . heb. . . let us have grace to serve god acceptably , with reverence and feare . why ? for our god is even a consuming fire . did not now the apostles come as well with a rod , as with the spirit of meeknesse ? did not they perswade men , as knowing the terrour of the lord ? did not they call mens eyes , not onely to behold the goodnesse of god , but also to behold his severity ? rom. . . dare now an audacious libertine step out and tell the apostles ( as they tell us ) that they were legall preachers , that they taught men popery and justification by workes ; and that they made men onely morall christians , because they held the law before them as the rule of all duties both of piety and charity ? if christ came not to abolish the law , but to fulfill it , then the law is not abolished : for either christ abolished it , or none ; and either by his comming , or not at all . but christ chargeth us , not to thinke that hee came to abolish it , matth. . . for what is it to destroy the law , but to take from it that vertue and power whereby it is a law , and to make it of none effect . and that christ came not to destroy the law is manifest : because . it is his owne law , which must endure for ever in heaven , psal. . . because it is holy , just , and spirituall , rom. . . which words imply , . that there is in it a supernaturall , divine , and unperishing vertue , resembling god himselfe , who shall as easily be destroyed as his law. . that it serveth to be a divine direction of all men ▪ in all holy , just and spirituall duties . . that it is an holy instrument of the spirit , by which he leadeth out the faithfull into the practise of those duties . . that whosoever have the spirit sent to dwell , and rule , and to write the law in their hearts ; they cannot detract from the law ; but the more spirituall themselves are , the more doe they discerne the spirituall power of it , and frame to the spirituall observance of it : so did the apostle in this place ; so david , psal. . , . and . . nay christ came to fulfill it , in himselfe , and in his members . . by preaching , illustrating , and inforcing the law , by vindicating it from false glosses , and restoring to the full and first strength of it ; by all which he sheweth it to bee immutable and eternall . . by plenary and full satisfaction of it , and by his perfect , and personall obedience , both active and passive ; so as he fulfilled all the righteousnesse of it ; and left not one iota of it unfulfilled . . by donation of his spirit , writing the law in the hearts of the elect , and inciting them to new and cheerfull obedience of it ; for to this end the saints receive the law of the spirit of life , that they may not walke after the flesh any more , but after the spirit , if the apostles after christ did not abrogate the law , but establish it ; then it is not abolished to beleevers in the new testament . but they by the doctrine of faith did not . rom. . . doe we abrogate the law by faith ? god forbid ; nay wee establish it . where the apostle cryes downe that grosse conceit of the contrariety of the law and gospell , so as one of them must needs devoure the other , as moses rod did the rods of the inchanters . true it is they are a distinct and divers doctrine ; but in god and his word is no contrariety ▪ and true it is the law and gospell will never stand together in the justification of a sinner before god , yet they friendly concur and agree in christian conversation , wherein they are inseperable , as also they are in christian institution : yea here they helpe one another , as one hand doth another . whēce the holy apostles who knew that the gospell was not properly and substantially the law ; yet usually in the publication of the gospell confirme the authority of the law. see some instances . rom. . . the gospel is the power of god to salvation : and by it not onely the righteousnes of god is revealed from faith to faith , but the wrath of god is revealed from heaven against all ungodlines : not that the gospell is a ministery of wrath , but a witnesse that wrath hangs over the heads of wicked men rejecting the gospell . rom. . . christ shall judge the secrets of men according to my gospell : that is , according to the witnesse of the gospell preached by me . iohn . . brethren , i write these things to you that you sinne not : and what did he write else but the sweet tidings of the gospell , that is any confesse his sinnes , god is faithfull and just to forgive them ; and that if any sinne , wee have an advocate with the father , & c ? for as no man can teach any duty of the law , but therin calls to faith : for call to the love of god , the substance of the first table ; must not he be first beleeved , and then loved ? or to prayer ; how can they call on him on whom they have not beleeved ? and so in the rest : so neither can a man preach faith without some reference to the law ; for can a man beleeve a remedy without knowledge , & search of the wound ? nay it is the law that fits us to prize christ a physitian , or else would we never meddle with him , no more than he would seeke out for a garment that hath no sence of his shame or nakednesse . what if the law know not , nor command one to die , or satisfie for another ; yet it doth not denie , or exclude , or hinder the mercy of god revealed in the gospell , but maketh way unto it . the apostles therefore did not abrogate the law by faith ; nay ( saith our apostle ) we establish it . from whence the argument will rise stronger : if the apostles did stablish the law by the doctrine of faith , then is not the law abolished to beleevers in the new testament . but they did establish the law by faith . quest. how doth faith stablish the law ? answ. . in shewing that all the menaces and curses of it are not in vaine , but all fulfilled in christ , who was laid under them all to free us from them . . it fulfils the law , because it bringeth before god the perfect fulfilling of the law for justification ; though not in our selves , yet in our surety , in whom wee have perfectly fulfilled it , and shall live by it ; the law must be absolutely fulfilled by us in our surety , or we cannot live . . it stablisheth the law , because faith worketh by love : which love is the fulfilling of the law : so as by faith being justified , as we are in a stronger obligation to the duties of it , so we begin a new obedience to all the commandements , and there is no duty which a christian is not firmely obliged unto . tell me ( saith augustine ) what there is in all the ten commandements , what it is that a christian is not bound unto ? . because by faith we can pray , and by the prayer of faith obtaine the spirit of god , by whom we are supplied with needfull strength to obey the law : so august : faith obtaines grace , by which the law is fulfilled : and ambrose saith , that faith stablisheth the law , because faith shewes those duties to be done which the law commandeth to be done . and thus have we strengthened our fourth argument , which hath proved that the apostles of christ abolished not the law , but established it : and therefore it is not without use and force in the new testament . in whomsoever must be a constant endeavour of conformity to the law , to those the law is not abolished . this is plaine , because where any thing is to be regulated , there the rule is necessary . but every beleever after conversion must strive to a conformity with the law , . in his inner man , . in his outward man , . in his whole man. . in his inner man , he must delight in the law of god , rom. . . both in his minde he must serve the law of god , verse . and in his affections hee must love the law. psal. . . oh how love i thy law. psal. . . the blessed man delighteth in the law of the lord : not onely in the knowledge of it ( which an hypocrite may ) but in the conformity of their hearts and affections with it ; they carry friendly affections to the law. our antinomists outboast all men in point of their justification . but st : ambrose his rule denieth them to be justified , because they are not friends with the law. and mr. luther , whom they challendge as their friend , and favourer , rangeth them among unjustified , and unregenerate men ; of whom he saith , that they love the law , as well as a murderer loveth the prison , and so well love these the law , and therefore by his censure rejected among the unregenerate . . in his outward man , and action the justified man must testifie that the law of god is written in his heart : so the apostle , ioh. . . he that fulfilleth the commandement abideth for ever . what is this commandement , and what is it to fulfill it ? the commandement is the same which he had delivered in the former part of the chapter , consisting of two branches . . to beleeve in the sonne of god , as our onely satisfaction , our onely advocate , and the reconciliati on for the sinnes of the world , v. , . . that we embrace him as our unerring patterne of our lives , and walke as he walked , v. . quest. how did hee walke ? answ. . in the generall observation of the whole law. . in speciall : in the perfect love of the brethren , v. . and in the contempt of the world . now must christ walk in the obedience of the commandements , and must not the christian ? yes , saith the apostle , every christian must fulfill the commandement . object . what will you teach justification by workes ? answ. no , we call not men to legall fulfilling of the commandement , but evangelicall : as . when the minde delighteth in the law of god , as holy , just and good . . when the heart hides it , to conforme unto it . . when the affection desireth to fulfill it , rejoyceth when he can attaine to any obedience , and sorroweth when he faileth in it . . when in his actions he beginneth that obedience which shall end in perfect fulfilling : this the gospell accepteth , and accompteth a fulfilling of the commandement . thus the apostle , rom : . . the righteousnesse of the law is fulfilled in us , which walke not after the flesh , but after the spirit : that is , christ by his meritorious obedience to the death , hath not onely freed us beleevers from the condemning power of sinne , but from the commanding power of it ; and so renewed our nature , as that the law of god shall be fulfilled in us : and that two wayes . . by application of his owne perfect fulfilling of it unto us ; with whom we by faith being united unto him , whatsoever is his being the head , is ours also being members . . by our sanctification it is fulfilled in us inchoately : that is , by obedience begun here , which at last shall be perfected , so as not the least motion or desire contrary to the law shall be left in our nature . thus is the righteousnesse of the law fulfilled , not by us , but in us , even here below ; and is our rule both in earth and in heaven . . in his whole man , the beleever must grow up to the image of christ , and to the conformity of his holinesse , which is no other but the perfect image of god expressed in the law. this growth in grace , and sanctification , is called the rising up to full holinesse , as the sunne riseth up higher till perfect day . prov. . . the way of the just is as the light , which shineth more and more till perfect day . but this cannot be done without the helpe of the law , the onely rule by which , and the scope unto which it must be directed . for . how should a beleever free from sin know himselfe in the service of righteousnesse , as rom. . . if he be under no command , or if his obedience be without rule or direction ? . or how should he discover his daily errours , to be humbled for them ? how should he remember from whence he is fallen ? or be raised to doe his first workes ( for all this must further his sanctification ) without the rule of the law ? . or , how should he see the imperfection , and uncleannesse that cleaveth to his best duties , whereby he is kept from proud pharisaisme , and the arrogant conceits of these libertine perfectists ; but by this stra●ght , and unalterable rule of the law ? by all which reasons it appeareth it that the morall law is not without force and 〈◊〉 unto beleve●● . chap. . discovering the true grounds of opposing so cleare a doctrine . wee never reade of hereticke , but hee would challenge the sacred scriptures as the groūds of his heresie , which indeede are the onely hammer of heresie : and even so these spiders , who sucke poyson out of the sweetest flowers , set a flourish and varnish over their poysonfull opinions with some scriptures , either wrested and writhen out of their owne sence , or broken off from other scriptures & thēselves ; for they have the scriptures , as aug : saith , the donatists had the sacraments for ostentation rather than for salvation . this vizard we shall put off in the chapter , which shall vindicate the scriptures fouly mistaken and misapplied by them , and restore them to their true sence and strength against themselves ; for no sword is so fit to take off goliahs head as his owne , and no weapons can be more keene a-against these , as those which wee shall wrest out of their owne hands . but in the meane time we will first lay open the true grounds of this unhappy schisme , and the right rise of these palpable errours . and these i observe to be three . . grosse ignorance : . swelling pride : . love of licentiousnesse , joyned with the hatred of holinesse , as we shall discover in their order . as truth hath no enemy but falshood , neither light any contrary but darknesse ; so the cleare rayes and beames of saving knowledge , issuing from christ the sunne of righteousnesse , are darkned and obscured in corrupt mindes by the clouds and mists of ignorance , the common mother of mistakes and errours : for what can a man in the darke doe other than misse his way , and marre his worke ? and what hath made these audacious libertines bold but blindnes ? who while they busie their heads in idle and fruitlesse speculations , and waste their discourses in idle and impertinent questions , are grosly ignorant in the very principles of catechisme , and farre to seeke in the very lowest grounds of religion . i remember mr. calvins observation concerning the same sectaries of his time : that whereas other heresies were raised , and defended by men of learning , wit , education , and reading : this was set on foot , and maintained by ideots , rude , & illiterate men , that never learned their frensie by turning bookes , but in some coblers or artificers shops and places of rude resort : for the basest schoole ( saith he ) will serve to teach a man to blaspheme god : and to prove his assertion , he nameth the two chiefe champions , who in his time raised and spread it about geneva , both wel known to him and drew a great multitude after them ; of whom one would willingly have had the preferment of an hostler or porter ; and the other of a chamberlaine or tapster ; fit captaines for their skill to levie , and lead such a band : and even such are the bricks that at this day are framed out of such clay ; a base sort of people , whose ignorance ( in the high conceit of knowledge ) layes them open to delusion , and wrappeth them in errors , so as none that savour of liberty comme●h amisse unto them : whereof while i give a list , or catalogue , let none thinke that i father any childe on them but their owne ( if they will owne their owne writings ) or any opinion , but such as for the loosnesse of it , and likenesse with the rest of the brood , will father it selfe . i know i have to deale with men as slippery as eeles , who can play fast and loose with their owne tenents at their pleasure ( for what can holde them whom gods law cannot ) sure i am , many of them will deny those to be their opinions , or in this sence ; or reject them on some private persons , or absolutely deny what they resolutely holde , if any way they may either advantage themselves , or disadvantage their impug●er . nor herein i am not uncharitable : it is not long since one of their masters ( in the hearing of a minister , who himselfe related the story unto mee ) taught a number of silly women gathered into his house on the saboth day ; that the law was wholly abolished : that god could see no sinne in the justified : that they were as perfectly pure as the angels ; yea as christ himselfe : with great vehemency and contention both establishing these and the like grounds and principles of his catechisme , and reviling our legall preachers , that leade men into a dead faith . but upon the thursday after , meeting the same minister at the high commission court , and fearing some danger towards him ; he disclaimed to him with as much earnestnesse , all that hee had then taught in every particular . the minister onely dismissing him with admonition , to consider how hee could answer god and his owne conscience , in seducing so many silly women against his knowledge , onely to maintaine his teeth . it shall not much trouble mee whether they owne them or renounce them : i avow them to be errours , and not onely creeping in the darke , but emboldening themselves into the light , and such as are very prejudiciall to many well-meaning but weake mindes , for whose satisfaction and setling i have set them downe as i have met with them in their papers , with some short antidot and preservative against them , intending rather a short survey , than any large refutation of them . error . that christ came to abolish the morall law : and that the gospel takes away all obedience to the commandements : and that true faith standeth at defiance with working and doing . answ. this threefold error ariseth out of a threefold ignorance . . out of the ignorance of the end of christs comming , who saith expresly , that he came not to abolish the law , but to fulfil it : in himselfe legally ; in beleevers evangelically : as we have proved largely in the former chap : reas . . . in the ignorance of the nature of the gospel ; which is so farre from taking away all obedience to the law , as that it indeed teacheth and requireth obedience unto it ; not whereby we performe the law ; but testifie our faith in the gospell ; and is therefore called the obedience of faith . the law indeed calleth for personall obedience to satisfie and justifie before god , but so doth not the gospell ; but onely for an obedience to testifie our love to christ , who hath satisfied it for us : for this is testified by keeping the commandements . ioh. . . if any man love me , hee will keepe my commandements . what love then in these men , that will keepe no commandements ? object . our love makes us keep his commandements : but what is that to the commandements of the law ? answ. as if christ did not command the same love and duties in the morall law. see matth. . , . where christ enjoyneth the young man all the duties of both tables . ioh. . . this is his commandement , that wee should beleeve , and love one another . is this his commandement of any other love than that which is the summe of the second table ? and what were the commandements of the apostles , but evangelicall commandements , & commandements of christ ? and yet they commanded duties of the law. thess. . . ye know what commandements we gave you by the lord iesus . what were they ? such as concerned fornication , v. . and oppression & fraud , v. . and were not these the same duties of the law ? the error floweth from ignorance of the nature of faith ; which is so farre from renouncing obedience , that it is never severed from obedience ; and it is not true faith that worketh not by love : for what is it to beleeve ? it is not onely to assent to what the scripture saith ; but to adhere and cleave unto it , and to the lord in the obedience of it : as henoch by faith walked with god ; abraham by faith left his country ; abode in the land of canaan as a stranger ; offered his son isaac , &c. and whence is it that obedience is called a fruit of faith ? for every act of grace must rise from the roote of that grace , as every fruit from his owne roote ; so as workes of charity are rooted in charity , which is a distinct grace from faith : yet are they called fruits of faith , because the doctrine of faith enjoynes them , and the grace of faith inclines the soule unto them ; and because faith receives the spirit of christ for sanctification , as well as the merit of christ for justification . but why doe they exclaime against us for preaching and embracing a dead faith , while they obtrude on their proselites a faith which must not work by love ; which , if they will beleeve s. iames , is a dead faith error . that godly life hath nothing to doe with keeping commandements . answ. the scripture saith , that godly life is nothing else but the fulfilling of the commandement , and will of god revealed . ioh. . . he that fulfilleth the commandement abideth for ever : which is to be meant of evangelicall fulfilling , not legall . see chap. . arg . . one thing it is to exercise good workes in way of obedience , another to rely on them in way of righteousnesse . . our charge is in every thing to prove and try what is the good and acceptable will of god : and have we nothing to doe with commandements the rule of tryall ? certainly we can neither doe any just thing without the rule of justice , nor prosecute it justly . . the life of christ was most godly , yet was said of him , heb. . . in the volume of the booke it is written of me , that i should doe thy will : and hereunto must every member be framed that must be in conformimity with the head . . not any duty of godly life can be acceptable or comfortable , but that which is warranted by a commandement , and we must know it so to be ; there can be no right worship , or worshipper , but hee that doth the will of god. ioh. . . if any be a worshipper of god , and doth his will , him hee heareth . so doest thou expresse love , shew mercy , execute justice , or practise any vertue , and not by vertue of any commandement ? he that will not heare the lord , saying , what i command thee , that doe onely : shall heare , who required these things at your hands ? error . that blessednesse is meerly passive , and therefore it is in vaine to put men upon actions for that end . answ. it is so to us in respect of merit and price ; but in respect of fruition , it is obtained instrumentally by faith which is an action , and is said to be ours ▪ yea our owne ; for the just lives by his owne faith : not because we are authours or causes of it , but subjects in whom god worketh it , and because by it things beleeved become our owne . . we are meere patients in the causes of blessednesse ; but in respect of conditions we are not so : for as we said of faith , wee may also say of good works ; god enableth to them , but man worketh them , and walketh in the way of them to blessednes : not that our works are causes , but conditions without which blessednesse is not attained . see matth. . . . this assertion bewrayeth great ignorance of the proper and present use of sanctification , and the duties of it ; which they conceive as legally urged , to helpe the beleever in his title and right to the blessed inheritante purchased in heaven : whereas onely christs righteousnes and merits give right and title unto heaven ; but yet the grace of sanctification gives us an aptitude and fitnesse unto it : for , without holinesse none shall see god , heb. . . and , no uncleane thing shall enter into the gates of that city . yea it is proceeding in sanctification to the measure , and stature of christ , that fits us to the vision , and fruition of the glorious presence of god ; and for the full possession of that heavenly inheritance . error . that the justified person is free from all spot of sinne , and perfectly righteous : for justice requires that a man should be as perfect as by creation before acceptation . answ. . iustice requireth that gods wrath should be pacified , and a righteousnes procured whereby the sinner may be accepted to mercy ; but not a plenary and personall perfection . . they shew grosse ignorance in the nature of justification , which frees the beleever from the condemnation of sin , but not from the inhabitation or molestation : for sinne is in the godly after justification . ioh. . . if wee ( that is , wee that walke in the light , and have communion one with another ) say we have no sinne , we deceive our selves . . faith it selfe in the justified is sincere , but not perfect ; for as we know things beleeved but in part , so we beleeve but in part ; our eye is not more dimme to see , than our hand is weake to receive : yea even in the best faith is imperfect , and mingled with doubting . moses●aith ●aith quailed at the rocke ; elias in a passion would be dead ; yea even abraham himselfe , who was strong in faith , though he doubted not of infidelity , yet he doubted of infirmity , gen. . . by long delay , his faith was sore shaken , when he said , that eliezer of damascus must be his heire . now would i know how that which is it selfe imperfect , and not free from spot of sinne , can make another altogether spotlesse . see more hereof in the second ground of this opposition . chap. . containing foure more pernicious and erronious opinions . error . that no action of the beleever after justification is sinne , for unto faith there is no sinne ; for all sinne past , present , and to come , is taken away by the blood of christ , and no sinne remaineth in the kingdome where faith reigneth , and sitteth judge ; it is out of the lawes element to judge of this blessed condition : neither can god allow any worke that is defective in the beleever . answ. here is the ghost of h. n. in this peece of new gospell , which tels us a dream of an absolute reigne of faith , where is still remaining sinne . true it is that faith deposeth the reigne of sinne , that it rule not , but so as that it selfe never reigneth in this life without the presence and assault of sin ; for such as say they have no sinne with their faith , deceive themselves . . it is enough for the state of this life , that faith frame the heart to willing and sincere obedience ▪ though not to perfect and absolute . . it argues their grosse ignorance in the scriptures , which affirme , that both persons and duties of beleevers , though imperfect & defective , are yet pleasing . . for their persons , god looketh upon them in christ , & pronounceth of them , that though they be blacke , yet they are comely . prov. . . the lord taketh pleasure in them that feare him . psal. . . the lord taketh pleasure in his people . acts . . in every nation he that feareth him is accepted of him . . for their duties , though they be imperfect , yet they please him , because their persons doe . mal. . . then shall the offerings of iudah and ierusalem be pleasing unto thee . phil. . . an odour of sweet smell , a sacrifice acceptable and well-pleasing unto god : speaking of the almes and charity of that church . col. . . children obey your parents , for this is wel-pleasing to the lord. and our comfort and happines is , that he pleaseth to accept from us that which is sincere , though weake , and imperfect . error . that our preachers teach popery in persuading good works to further mens owne salvation . answ. our doctrine and practise herein agreeth with the doctrine of the scriptures , and with the practise of christ and his apostles , and because the sectaries cast this imputation upon godly ministers , to weaken their authority among their people , it will not be amisse in few words to cleare it : and that in these positions . . wee teach according to scripture , that every good worke must rise from a good worker , for the tree must first be good : and men gather not figges of thistles . so as a good worke is proper to a justified person , and the use of it cannot be to justifie , because he is justified already . . we teach the necessity of the duties of the law to salvatiō ; not as causes or merits of our salvation or justification ; which were to dethrone christ , and preach popery , but as a way and meanes appointed by god to walke into heaven : and so the apostle preached them necessary . tit : . . let ours also learne to maintaine good workes for necessary uses : and every simple man knoweth , that the holding of the way must needes further the journey , and conduce to the place intended . . wee carefully alwayes distinguish betweene the justice of workes , which conduceth nothing to salvation ; and the presence of workes , without which there is no expectation of salvation : for without their presence all faith is dead , and all religion vaine . . wee distinguish in this doctrine , the principall efficient cause of righteousnesse and salvation , from the instrumentall . is it a good reason , that because christ is the principall efficient , and the onely meritorious cause of our salvation ; that therefore all the instrumentall and adjuvant causes and means of salvation must be cut off and cast away ? true it is that god alone decreeth our salvation , christ alone meriteth it , the spirit alone sealeth it : but yet the gospell revealeth it , and that saveth ; faith apprehendeth it , and that saveth : the ministers they preach it , and they save , namely ministerially . tim : . . thou shalt save thy selfe , and them that heare thee . did the apostle write popery , or derogate frō christ , in saying that timothy did save himselfe and others ? or is it such a peece of popery to say , that the use of the meanes doth further the end ? . what will you say of st. paul , who commands us to worke out our salvation with feare and trembling ? it seemeth he thought that men must doe something toward their owne salvation : as that father did , who saith , that though god made us without our selves , yet hee saveth us not without our selves . and phil : . . when he calleth duties of beneficence and charity , a fruit furthering our reckoning ; that is , as a meanes , not as a merit . i would know how they should further our reckoning , and not further our salvation . true it is that mercy accepteth that for a furthering of our reckoning , which in strict justice would not goe for payment : but yet seeing the same mercy takes us into the worke , we may per●wade also with the apostle , that christians would be still thus furthering their owne reckoning . the same apostle speaking of the same duties , cor : . . calleth them a sowing , and saith , he that soweth liberally ▪ shall reape liberally . whether doe not these men thinke , that sowing is a furtherance to the harvest ? surely s. paul thought so , & yet minded not to strengthen popery : for neither is he that soweth any thing , neither he that reapeth any thing , but god that giveth the promise , and increase . the same apostle speaking of the duties of christian suffering , saith not onely that they turne to the salvation of the saints , phil : . . but also that our light and momentany afflictions cause unto us an eternall weight of glory . & do they not then further our salvation ? and what doth the apostle peter say lesse ? when he saith , that by addition , and exercise of graces , an entrance is ministred abundantly into the kingdome of christ. and why doth the apostle excite christians every day to further themselves in the way of salvation , as runners by speed and strength get nearer the goale ; if we may not urge the doctrine of good workes , and christian duties , in pretence of the lawes abolition ? which certainly was as much abolished in the apostles dayes as now ? error . that not as much as any outward worship of god required in the law is to be performed by true beleevers since the comming of christ : because all the worship of the new testament is inward and spirituall . ioh : . . the houre commeth , &c. and to receive the doctrine of the gospel by faith , is to worship the father : neither hath any other good worke done in obedience to the morall law any reward : because all is the free gift of god. answ. . here is a bundle of errours tyed together , all for the upholding of atheisticall liberty ; whereby they would trample under foote all gods sacred ordinances at once , and loose themselves from all care , and conscionable use of the meanes of salvation : these wild conceits come in as the ill favoured lean kine in pharaohs dreame , that eate up all the fat kine . for how wilde and loose a consequent is it , that because god will bee worshipped in all places , therefore hee must not be worshipped outwardly : or because he will be worshipped spiritually , therefore hee will not be worshipped externally . . how madly and confusedly is all worship inward and outward , resolved into a fantasticall faith , neither required in the law , nor evidenced by workes , as the faith of the gospel ; nor distinguished from the faith of divels , who by assent receive the doctrine of the gospell , and beleeve it ? this is mechanicall divinity beseeming a shop , for never came it out of the schooles : that there is no worship since christ but inward : nor that , that inward worship is nothing but faith : nor that , that faith is nothing but to receive the doctrine of the gospel . . as simple is that they say , that no workes have reward , because all is free gift ; as if free gift and reward cannot stand together : the reward being freely promised by god , and god not unjust to forget either his owne promise , or our labour of love . . are they such strangers in the scriptures , that they have not read neither of recompence nor reward ? not indeed merited by the worker , nor deserved by the worke ; but reckoned ( not to the worke but ) to the worker being in christ ; and bestowed of free grace , for the faithfulnesse of the promiser , not for the desert of the worke , or worker . in which sense , let them runne and reade these places . prov. . . blessed is he that hath mercy on the poore , the lord will recompence him that which he hath given . matth : . . a cup of colde water , shall not lose his reward . mat : . . come ye blessed , &c. for ye gave mee meate . rev : . . beholde i come shortly , and my reward is with me , to give to every man according as his worke shall be . and psal : . in keeping the commandements there is great reward . error . that god seeth no sinne in the justified : for hee seeth no iniquity in iacob : numb : . . answ. vnhappy was his schisme , and unworthy was his suffering , that wilfully disturbed the peace of the church , and ruined his owne peace , only for a strife of words , and mistaking a phrase of scripture which hee would not understand . the phrase is a borrowed speach ( as all may see ) ascribing eyes unto god ; and taken from the custome of men , who turne away their eyes from that they would not see . gods eye is his knowledge ; and this knowledge is twofold . . a simple eye an●●●owledge , wherby he cannot but see all things , and actions that ever were , or shall be . heb : . . all things are naked to him with whom 〈◊〉 have to doe . ier : . . can any man hide himselfe in secret places , that i should not see him ? thus he seeth all the sinnes of all good and bad . psal : . . o lord thou knowest my foolishnes , and my faults are not hid from thee . . a respective eye or knowledge , joyned with purpose and affection : and thus what hee cannot but see with the eye of his simple knowledge ; he sees not with this judiciary eye : so he sees not the sins of the elect with the eye of severity ; hee discernes the sinne , but not with purpose of revenge . when god is pleased thus to behold sinne , hee is said in scripture not to see it . . because he sees it not to punish it ; . not to impute it or lay it to the charge of the sinner ; . when he seeth it to pardon it , and to cover it , yea and to cure it . and this phrase of not seeing sin , is the same with those other , of casting sinnes behinde his backe , isay . . and casting them into the bottome of the micah . . of putting them away as a mist , isay . . all improper and metaphoricall speeches ; but such as deceivers wrappe themselves in , to hide and colour their ignorant and witlesse schisme ; taking that in the simple and literall sense , which is to be understood in the metaphoricall , and respective : and willingly shuffling and confounding those things , the distinguishing whereof would helpe them backe into the way of truth and sobriety . this is also st. augustines exposition of the phrase : what is it for god to see sinne , but to punish sinne ? but for a man to say , that god can no way see the sinnes of beleevers , is to open a wide gate to all libertinisme , epicurisme , atheisme , and whatsoever else is an enemy to the feare of god , and the awefull regard of his all-seeing eye ; and the expression was as foolish , as the conceit it selfe is novell , and false ▪ the sinnes of beleevers are covered as close from gods sight , as this salt-celler is now covered with my hat . can you now ( saith he ) see this salt-celler ? no more can god see the covered sinnes of beleevers . the man did not consider that god could see under the hat , though his disciple could not . somewhat would be said against this ignorant conceit , to instruct and stay such ingorants as are teachable , and willing to see the truth . and therfore thus i reason . . he that must bring every worke into judgement , must see every worke : but god will bring every worke into judgement , whether it be good or evill : therefore hee must see every worke , as well those that hee bringeth into the judgement of absolution , as those which hee bringeth into the judgement of condemnation . . what god seeth once by his simple and absolute knowledge , he ever seeth , by one eternall and simple act , which is not capable of change , or forgetfulnesse ; not now seeing , and now not seeing ; he never seeth any new thing , but seeth and knoweth all things at once with one and the same sight ; for the knowledge of god is the essence of god : according to that ancient and approved saying , nothing is in god but god. . what god directeth and ordereth to a certaine end , he must needes see and know : but hee directeth and ordereth all the sinnes of beleevers ( though past and pardoned ) to a certaine end ; namely to his owne glory , to the praise o● his mercie , and to their humiliation , repentance and salvation : therfore hee must needes see that which he so wisely and powerfully ordereth . . one attribute of god destroyes not another , his mercy must not destroy his wisedome ; he must see the sinnes that hee pardoneth , and in which he magnifieth the riches of his mercy : and if god knew not all evills of whomsoever , his knowledge were imperfect , and he should want some good knowledge ; for the knowledge of evill is good . . what god makes them see in themselves , himself must necessarily see ; but hee makes the beleever see , and confesse and bewaile his sinne , even past and pardoned : therefore himselfe seeth them much more . for we have no eye , nor facultie of minde to discerne any thing , but from him that enlighteneth every man that commeth into the world , iohn doth he work in us the knowledge o● our sinnes , and hee not know them ? nay doth he enjoyne the saints to set before his eye daily their sinnes in the humble confession of them and prayer for pardon , and doth he not yet see them ? doe we not heare david confessing the sins of his youth long after they were not onely committed , but remitted ? psal. . and doth he not confesse with humility those foule sinnes , after he had a speciall message from god , that they were pardoned ? psal. . and in the new testament did not paul long after his conversion and justification , confesse sinnes pardoned ? i was a blasphemer , and a persecuter , &c. and did not god now see and know these sinnes past and pardoned ; or not heare their confessions ? . if the spirit of god maintaineth a continuall combat against the sinnes of the justified , then he sees those sinnes against which he fighteth : for wee must not thinke that the spirit of light and wisdome either fighteth in the darke , or blindfold ; or that the elect can ever find the power of the spirit subduing those sins which he cannot see . . hee that recordeth the sinnes of the elect many yeares and ages after they are pardoned , seeth sinne in the justified : for how could hee inspire his servants in that which he did no way see ? but so doth the lord. for of david was said long after his death , that hee was right save in the matter of vriah . rahab was called an harlot many ages after her , and yet the holy ghost forgat not that she was a beleever . heb. . . by faith rahab the harlot perished not . elias was said to be a 〈◊〉 subject to the same infirmities , iames . god that sees the infirmities of the saints so many ages after , seeth and knoweth greater errors much more , though not to impute them . object . but these were in the olde testament ; but since the death of christ god cannot see sinne pardoned . sol. o grosse ignorance ! was the death of christ lesse efficacious in matter of remission of sinne , and righteousnesse to beleevers in the olde testament than to us in the new ? was hee not the same lambe slaine from the beginning of the world ? even the same yesterday , to day , and for ever ? . doe they never reade the scriptures , or doe they reade them , and winke at such pregnant and plentifull examples of beleevers recorded , and yet many ages before pardoned ? corinth . . . speaking of theeves , covetous , &c. and such were you , but now yee are justified , now yee are sanctified . did not god and his spirit see sinne past , and pardoned in the justified ▪ rom. . . yee did give up your members weapons of unrighteousnesse . these were sinnes past and pardoned in justified persons in the new testament , and after christs death . ephes : . . remember that yee were gentiles , in the flesh , without god : aliants without hope : it seemes god saw , and remembred sinnes past , and pardoned , and putteth them in remembrance of them . col. . . the apostle chargeth the colossians with what they had beene , and in what fearefull sinnes they had walked , though now they were justified . did the lord charge them with that hee did not see ? i might be abundant in such testimonies : but if these places cannot cleare this truth to them , let them still shut their eyes against the sunne , and hide themselves in their owne thickets ; to enjoy more securely all their licentious courses ; as those wicked men that say , tush god seeth us not , there is no knowledge in the most high. chap. . containing foure other as libertine and dangerous errours as the former . error . that god is not displeased with the sinnes of the justified , and much lesse correcteth them ; for hee is fully satisfied in christ for all the sinnes of the elect : and how can he be displeased with them for that , for which hee hath received full satisfaction ? answ. . the perfect good must for ever hate that which is perfectly evill : so as god can never be at agreement with sin in any ; nay he so hateth sinne even in the justified , that he maintaineth in them a perpetuall combate , and irreconciliable warre against it . . they conceive not that anger and love may be at the same time tempered in a father to his children , whom because he loveth he chasteneth . but this hatred is not a simple hatred , or an hostile wrath , or a revenging anger , such as hee putteth forth upon contumacious sinners ; but a loving , fatherly and fruitfull chastisement upon sonnes : neither doth this wrath redound and seaze upon their persons , but upon their sinnes . but these confused men not distinguishing betweene persons and sinnes , cannot conceive how god can hate their sinnes , and at the same time love their persons . neither can they apprehend aright the nature of reconciliation , which is a freedome from revenge upon the persons ; because they are sonnes ; but not a freedome from the chastisement of their sinnes , for then , saith the apostle , they were bastards and no sonnes . object . but ha●h not christ borne all the punishment of the sinnes of beleevers ? answ. yes all the punishment of malediction , which is indeed properly called punishment ; but not of correction : for we must daily beare his crosse , and fulfill the remainders of the sufferings of christ. . christ hath most fully satisfied the justice of god for the sinnes of the elect ; so as no punishment satisfactory remaineth to purge or satisfie for sinne past , but there remaineth a monitory castigation , to bring the saints to mourne for sinne past , and to watch against sins to come . object . but can god punish one sin twice ; once in christ , and againe in the person himselfe ? answ. no , if we understand it of the punishment of divine revenge , and not of fatherly correction ; intended not for perdition , but for ●rudition , and caution , and to make them partakers of his holinesse . object . it is true , the godly are afflicted , but these afflictions have no respect to sinne , but onely for tryall . answ. what none ? are they not merited by sinne ? are they not from the just god , whose justice cannot punish the guiltlesse ? farre be it from thee to doe this thing , to punish the righteous with the wicked , gen. . . surely correction must needs imply offence , and affliction commeth not without respect of sinne , either past , to correct it ; or present , to mourne for it ; or to come , to prevent it . micah . . for the wickednes of iacob , and for the sinne of israel is all this . lam. . . man suffereth for his sinne . micah . . the church will beare the wrath of god , because shee had sinned . object . yea this was in the old testament ; but since that time christ hath dyed , and actually borne the punishment of sinne : and you can bring no such place out of the new testament . answ. hath christ done lesse for beleevers in the old testament than in the new ? did they beare more wrath for their sin than we ? or did not christ carry as much wrath from thē as from us ? was not his death as vertuous to the first ages of the world , as to the last ? or did the vertue of it begin at the time of his passion ? or is not the faith of messiah to come alike precio●s as the faith of him come already ? . but have we no place in the new testament to shew beleevers corrected for sinne ? what is that , cor. . for this cause many are weake , and are sicke , and many die ? it is too rash to say ( as one ) that these were carnall , and hypocrites ; unlesse they be carnall and hypocrites , that must not be condemned with the world . pet. . . iudgement must begin at gods house . heb. . . he scourgeth every sonne whom hee receiveth . why ? because they are sonnes , or because they have sinnes ? object . ioh. . . neither hath this man sinned , nor his parents ; therfore afflictions are not for sinne : and iobs afflictions were all for tryall , not for sinne . answ. . in generall . the difference of the judgements of the godly and the wicked , is not either . in the meriting cause , for both are merited by sinne . . nor in their matter , being materially both one ; the same sword , the same plague , the same famine , the same blindnesse , sicknesse and death . . nor in the ground of them ; for both are threatned and inflicted by the same law. . nor in their sence and feeling ; for there is no difference between the smart of sonnes and slaves . but the difference is in , . the person inflicting : . in the persons bearing and suffering : . in the end of god which is not the same : . in the fruit and issue which are much different in different persons : the serious consideration of these grounds would let them see wherein their errour lurketh , if they will not be willingly ignorant . . for the instances : first , of the blinde man. i answer , that the position of one cause is not the remotion of another , where many concurre : neither doth the affirming of the principall cause deny the lesse principall . god in this judgement principally intended his owne glory , in the honouring of his sonne , and not principally the sinne either of the parents or sonne . . christ speaketh not of the meritorious cause of this judgement , but of the finall cause : and so the objection is not to the purpose . secondly , the like we may say of iob , the principall end of his affliction was for tryall , and not for correction : but this excludeth not the meritorious cause , nor proves that there was no correction in it , at least might not be . object . but christ was extremely punished , but not for sinne ; and therefore there are afflictions without sinne . answ. this is as impertinent a cavill , as the case is singular . christ had no sinne in him , but had sinne on him : he had none inherent , but had enough imputed : he had none of his owne , but the infinite burden of all the sinnes of all his members lay upon him ; for which he was plagued of god , because he stood before god as the greatest malefactour that ever was : not because he had proper sinne , but appropriated ; not because he did any sinne , but was made a sinne for us , ●hat we might be made the righteousnesse of god in him : gods justice could not have punished him , if he had not stood before him as a sinner . so the objection turneth quite against themselves . object . but christ by his kingly power reigneth to maintaine in the conscience the peace procured , both against the law , and sinne , and the divell , and the world , and worldly reason . answ. peace without disturbance neither within nor without the apostle knew not , rom. . nor yet christ himselfe , who so left his legacy of peace of his disciples , as that notwithstanding in the world they must have affliction . . it is enough that christ reigneth to maintain our peace by weakening and subduing the power of sinne daily , although he totally and wholly abolish it not here below ; and fatherly and loving correction rather furthers and strengtheneth his reigne , than hinder or weaken it in us . error . that justified persons have no more to doe with repentance ; and to repent of every particular sinne is to beleeve that a man is not perfectly justified , or at once ▪ but by peece-meale as sinne is committed ; yea it is to undervalue the sufferings of christ , as not ha●ing sufficiently satisfied for all sinnes past , present , and to come . answ. a desperate principle , as much abolishing the gospell , as any of the former doth the law : and indeed no enemy to the law can be a friend to the gospell . but we must know , . that never can man be free from repentance , till he be free from sinne to be repented of ; which can never be shaken off in this world . the whole life is but one day of repentance , and repentance is the work of that whole day ; and who but a profane libertine would not have his master find him so doing ? we sweepe our houses every day , and wash our hands every day , because one contracteth dust , and the other soyle every day : much more have we need to cleanse daily the houses of our hearts . see my treatise in●ituled , the practise of repentance , cap. . and therein many reasons for con●inuance of repe●tance . . they forget that david and peter repented after saith : that the church of pergamus , that kept the name of christ , and had not denied the faith , must yet repent her selfe , else christ will come against her , rev. . . and . and how much cause have the best men to repent of their daily sinnes , that must repent daily of their best duties , which they must confesse are as a filthy clout ? . although the spirit by faith assureth the beleever , that all his sinnes are satisfied by the death of christ ; yet the spirit also perswadeth the heart , that in this way of humiliation and repentance we shall receive assurance of remission of daily sinnes , and particular infirmities : for else the spirit should faile in his office , which is to bring even the house of david , and the inhabitants of ierusalem ( that is , true beleevers ) to the fountaine of grace , and stir up in them deepe sorrow and earnest lamentation in seeking pardon for daily sinnes , and speciall provocations against the lord , whom by their sins they have pierced . . prayer for forgivenesse of daily sinnes is an act of repentance enjoyned by christ on him that hath formerly repented , is justified , and calleth god father ; as in that petition of his most holy prayer , forgive us our trespasses . . they that overflow with love , and outboast all others in their pretence of love , which is so strong and active as they need no other mover , forget that increase of love to god must needs increase repentance and sorrow for offending him : if love be great , so wil sorrow , as in peter . in a word , their harvest of joy is too hasty , and will prove like an inheritance hastily gotten : this is not the time of wiping away all our teares , nor is our dripping seed-time yet over , but even wee sigh in our selves , waiting for the adoption , even the redemption of our bodies , rom. . . error . that no beleever is to pray for pardon of sinne , seeing all his sinnes past , present , and to come are already pardoned . answ. then must you blot out that petition of the lords prayer , wherein he hath taught those that call god father , to pray daily , forgive us our trespasses : which petition implieth ( as we have shewed ) daily repentance , even in them that have repented . a man would wonder what shift they make to repeat the lords prayer , or to pray in his words , unlesse they have learned the tricke of the olde pelagians , who would repeat the pe●ition for modesty sake , but not out of the sense or conscience of their owne need ; which modesty is indeed a lie , and fained humility . . prayer for pardon will stand with assurance of pardon , and assurance of pardon will not stand without prayer for pardon ; for then are we assured of pardon , when we can pray for pardon , god being found favourable onely in his owne way . . though wee know our sinnes pardoned , yet must we pray for pardon ; neither doth assurance of pardon and mercy dead our prayer for pardon , but quicken it . christ knew his sheep should never perish , ioh. . . but yet he prayeth for them , that they might not perish , ioh. . . he knew that his father would glorify him , but yet prayeth that his father would glorify him , ioh. . who will say this his prayer was needlesse ? paul knew that god would deliver him from every evill way , yet prayed for it . so though we know our sinnes to be pardoned , yet it is not needlesse to pray for pardon . . though god in heaven have by an eternall sentence blotted out the sinnes of the beleever in the first act of his conversion , and this sentence can never be blotted out , yet we may and must pray for pardon of sinne ; namely , that this sentence of pardon may be pronounced in our owne consciences : and thus it seemes david prayed earnestly for forgivenesse of his sinnes , psal. . when he knew long before that god had forgiven them ; for nathan had tolde him , that god had put away his sinne : he prayed that god would not only forgive his sin in heaven , but even in his own heart also . . though our sinnes be forgiven even in our owne consciences , yet because of the stain and guilt of new sins our assurance is sometimes weakened , and not so comfortable , wee must pray for pardon of sinne still ; that is for a greater , and more comfortable measure of assurance , and a sweeter taste and apprehension of gods favour in remission of sinne ; for who can taste of this sweet honey , and not long for more ? and whereas our weaknes cannot so firmely apprehend it , and our corruption doth daily weaken it , we must pray for the continuance of our comfort and mercy ; whereof prayer is a principall meanes . . suppose we have pardon of sin in the beginnings of it , and some sweet fruites , yet we must pray for it in all the fruits , in all the effects , in the full comfort and accomplishment of it ; for by remission of sinne wee are now freed from the damnation of sinne , and from the domination of it ; yet are we not freed from all the remainders of sin , nor from all fruites , and molestation of sin : for notwithstanding the pardon of our sins , we have the presence of sin , and are in conflict with terrours of conscience , gods just desertions , calamities , afflictions , and feare of death . now must we pray according to our faith for full pardon , even for the full acquittance promised , and that solemne sentence of absolution by the mouth of the iudge , which shal fully and really give us compleat possession of gods whole mercy ; which we now have by right and title , but not in all the fruits , effects , and full comfort of it ; and never doe the saints pray for christs comming without implication of full and finall remission of sinnes . all which manifestly bewray the blacke and blockish ignorance of this erronious assertion error . that preachers ought not to preach the law to beleevers , whom the threatnings of the law concerne not , as being out of the reach of the law , and beyond all feare of condemnation : and these legall preachers deale very lewdly in bringing men backe to the obedience of the law , and so make them seeke righteousnes in themselves . answ. these are merry men , and might well set themselves on so merry a pin , if the way to heaven were so wide and roomy as they imagine it . for . neither can they sinne being in christ if they would . . neither if they should , could god see it . . if hee should chance to see it , he could not bee displeased with it . . if he should be displeased , his hands are bound , he cannot correct it . . themselves ought not now to sorrow or repent for any sin any more . . it is idle to pray for pardon of sin , which is already pardoned , whether it be past , or present , or to come . . and now they must not so much as heare of their sinnes any more , and all their religion is turned into a merriment , which they call a meeting with such comfort as they never found before : but this comfort will prove but a laughter in the face , when the heart hath cause to be heavie . for , . is there nothing else to be feared of a christian but finall condemnation ? a childe may feare to be whipped , though he feare not to be disinherited : psal. . . even the righteous shall see and feare . . a man may feare that which he is sure to escape ; but this is a feare of watchfulnesse , not of distrustfulnesse . . no man is so holy but hath need of threatnings , and faith beleeveth threatnings as well as promises ; not onely barely apprehending them as true and certaine , but with application to decline them , and frame to obedience even in regard of them . this is plaine , because even in state of innocency was use of the threatning to keepe our sinnelesse parents from sinne : and iob a just and holy man by gods owne testimony durst not lift up his hand against the fatherlesse : why ? because destruction from god was as a terrour unto him . and even those that receive a kingdome which cannot be shaken , must serve & please god with reverence and feare ; because our god is a ●onsuming fire , heb. . , . . suppose the threatnings shall never take holde of a beleever , may ●ot hee therefore heare of them ? to heare them is not to cast him into them , but to keepe them off him ; the hearing of legall threatnings is very usefull to the best . . it makes them relish and prize the promises of much the more , and sticke faster to them , & hold in the way unto them . . the hearing of threatnings kindleth a flame of love to god for delivering from them . . incieth our charity and compassion to our brethren , to helpe them from under them , and provoketh the saints themselves to worke out their own salvation with feare and trembling , phil : . . . are we lewd preachers for urging the law upon men ? then why were not christ & his apostles so , in pressing on beleevers the obedience of the law ? yea to the law more strictly expounded than by the scribes and pharises ? and in urging on them a righteousnes exceeding the righteousnesse of the scribes and pharises : which was not an imputed righteousnesse of faith for justification before god , but a righteousnesse of sanctification in their persons performed through grace by themselves . so when our lord affirmeth , that in the kingdome of heaven , that is the church of the new testament , hee that doth the commandements , and teacheth men so to doe , shall be called great : that is , shall be highly esteemed : was hee a lewd and false teacher , leading men away from himself , and the grace of the gospell ? or if he were not , why are wee so for teaching the same doctrine ? . no man can teach obedience of faith , but therein he must teach the obedience of the law also : for the same workes are both the works of the law , and the workes of faith ; which are distinguished , not divided . for example . love or charity ( which containeth all the duties of the second table ) is called a worke of the law. luk. . . what is written in the law ? how readest thou ? and he answered , thou shalt love the lord thy god , &c. thus it is a worke of the law in respect of canon , rule , direction . but it is called also a fruit or worke of faith . iames . , . shew me thy faith by thy workes : and , faith worketh by love . thus it is a worke of faith in respect of the cause , and adhaesion , being an inseperable issue of it . how can a man persuade love as a worke of faith , and not the same a worke of the law ? . how false and absurd is it to say that preachers teaching obedience to the law of god , teach men thereby to hang upon their owne righteousnesse , or to seeke their justification by their owne performances ? far are we from teaching that iudaicall righteousnesse , performed in way of justification ; all which is a filthy ragge in the sight of god and his strict justice . but we persuade a christian righteousnesse of sanctification wrought by the spirit of holinesse ; ▪ of which holy obedience are many other uses ( which they are loath to see ) besides the justifying of their persons in the sight of god. as , . it is called for in way of christian conversation , that our light may shine before men . . in way of imitation of christ our head , and of conformity of his members to his righteousnesse , which derogateth nothing from his righteousnesse . . in way of testification of our righteousnesse before god : for hee that doth righteousnesse is righteous , ioh : . . thus having set downe these twelve articles of libertine and famelisticall faith , i will content my selfe therewith , although i could have easily set downe twelve more , so fruitfull and generative errour is : but that i intended in this onely to give a proofe of their grosse ignorance in principles of religion , which was that i undertooke . i could easily have refelled that mysticall and spirituall ( but fantasticall union of theirs ) with christ before faith ; their sanctification before justification , their elevating the sin of infidelity , ( which strongly savours also of liberty ) as that it is no sinne ; or at least of the morall law , wherein i will not strive ; though i am sure the scripture maketh it a sinne of sinnes : and christ calleth it , the great condemnation : and perhaps they shall holde a more sound tenent , that shall holde it both against the law , and gospell . for . it may be not unprofitably enquired , whether the first commandement doe not binde to all commandements both ordinary , and eztraordinary , both d● praesenti , and de futuro : whether the law doe not binde us to beleeve all that god shall utter , as well as what hee hath uttered . . whether the second commandement doth not enjoyne whatsoever is a meanes of salvation , and an inward religious worship , for then the contrary must needes be sinne . . whether it be not a sinne against the second cōmandemēt , not to beleeve that branch of the same commandement , that god will shew mercy to thousands of them that love him , and keepe his commandements . and if it be , then infidelity is a sin against that law. but i forbeare many things , and perhaps some will thinke i might have spared some paines in refuting the former , which at the first sight are so distastefull to the judicious , as the reciting of them might seeme a sufficient confutation : but my desire of helping the weake , who are easily overreached , drew mee thus farre beyond mine owne purpose ; and my endeavour was to contract many things into as narrow a roome as i could . chap. . shewing the second ground of this opposition , which is horrible pride , especially discovered in their ridiculous conceit of perfection . the undivided companion of ignorance is pride ; for no man that ever aright knew god or himselfe , but the nearer he approached to god with abraham , the more did he humble himselfe in dust and ashes . but here is a generation of men swelled up with pride , and blowne up with a presumption , that they are gotten into the highest forme of perfection : they can scorne and disdaine the directions of the law , as being far beyond it ; for they have attained a full perfection not of justification onely , but of sanctificatiō also already ; they are free not onely from the power of sinne , but from the presence also : christ himselfe is not purer , or more free from sinne than they are : nay being borne of god they cannot sin if they would : if they doe acts of sinne in high nature ; yet where is no law is no transgression : god cannot see them in that glasse . hence they can loose themselves from most ministeries , but some teachers of their owne sect ; and deride the holy labours of godly preachers , who with zeale and piety persuade men to walke according to rules . oh what an height of pride are those private peremptory persons come unto , who complaine that their heads have aked to heare some godly and worthy preachers ; and have professed , that for the gift of two pence they would never more heare sundry such , as i know to be of long continuance as shining and burning lights ; as they may well be in the first ranke of gods worthies , that have beene of best desert in our church . and where is the humility of that teacher that makes his bragge , your teachers understand not mee . no ? the more is your sin and shame . doe you preach amongst a tumult of artizans , and illiterate men , so as our ministers cannot understand you ? what is the reason you doe so hide your selfe ; seeing light feareth nothing but darknesse , and truth nothing but to be hid . i must say to you , as ierome of the crabbed poet persius : if you will not be understood , you ought not to be read : so if you will not be understood , you ought not to preach ; unlesse perhaps it may be more beneficiall to the church , that if you doe preach , you be not understood . alas that men professing the doctrine of godlinesse , and pretending the practise of wisedome and sobriety , should by the pride of their hearts become thus disguised , and transported into raptures and fits next to frenzie and madnesse . but against this windy conceit of perfection i will now say the lesse , because i have dealt more fully against this pernicious errour before in the third chapter . yet here . let it be considered wherein the scripture placeth the perfection of saints here below ; and that is not in the want of sinne , but in the fight against sinne ; and not in the absence , but in groaning in the presence of sinne . for . would christ teach men without sin to pray daily for forgivenesse of sinne ? . would hee command those to pray daily not to be led into temptation , that cannot sinne if they would ? . did hee ordaine the sacrament of the supper for men perfect , that want nothing , to whom nothing can be added ; or to the sicke , who neede the physitian , and to such as hunger and thirst after righteousnesse , which is a sen●e of defect , not of perfection . . are they in holinesse and perfections of grace beyond the apostle paul , who many yeares after regeneration complaineth that he found evill present with him , and a law in his members rebelling against the law of his minde ; and professeth that he had not attained , and that all is here in part , and imperfect till that perfect come . . are they perfect without sinne , why doe they then as other sinfull men doe ? hath death any commission where is no sinne ? or if their sinnes be gone , and their persons justified , and yet they die : why deny they that any correction abideth any whose sinne is pardoned , unlesse they will say they die onely for triall . secondly , sanctification hath three degrees in this life , the highest of which is imperfect . is the death of the body of sin . which is not all at once , but resembleth the death of christs body on the crosse , which was diminished by degrees , till his spirit by his last breath was surrendred to his father . thus is it in the christian , whose last breath of sinne , and of the body goe out together . the second degree is the buriall of the body of sinne , which is a further proceeding in mortification , as buriall is a proceeding of death , and a consumption of the dead body not all at once ; but by little , and little . so mortification is not an act of a day , but of the life . the third degree of sanctification , is a raising from the grave of sinne to a new life , by vertue of christ his resurrection : that looke as a graft set in to a new stock , draweth juice and life from that stock , not all at once and then no more ; but still draweth , and by drawing , groweth by degrees unto the full height and age of it : evē so is it here , christian life is continued as naturall by dayly supply and addition of that which is daily wanting . god indeed if he had pleased , might in a moment have freed his servants from all sinne , as well in life as in death ; but he wold not : because his wisdome procures himselfe more glory in his protection and assistance of the saints : and in the victory of his servants against sin , than if they were free from sinne . the fiercer the enemies were that rose up against moses in the wildernes , and against iosua in the land of canaan , the more it turned to the glory of gods mighty power , in giving them possession in despight of them all . and so greater honour returneth to the lord , because greater is his grace in making the sinnes of the saints remedies of sinne ; to humble them for sinnes past , to shame them for sinne present , and to worke in them feare & watchfulnesse against sinne for time to come ; then if he should at once abolish sinne in them . all which , these men shake off their hands as easily as sampson did the greene cords , when the philistins came upon him . thirdly , as he that exalteth himselfe must be brought low ; so the scriptures shew those to be in highest estimation with god that have beene , and are least in their owne eyes : abraham seeth himselfe but dust and ashes . iacob seeth himselfe lesse than the least mercie . gideon saith of himselfe , who am i ? or what is my fathers house , but the least in all israel ? iudg : . . iohn baptist , than whom a greater was not borne among women , said , i am not worthy to loose the latchet of his shooe . the centurion , i am not worthy that thou shouldst come under the roofe of my house . peter , goe from mee , lord , for i am a sinfull man. paul , i am the least of all the apostles , but the chiefe of all sinners . but we never read nor heard those vaine voyces from any truely regenerate man : i am perfect . i am pure , so as nothing can be added unto me : i cannot sin if i would : gods eternall power can see no sinne in me : i am beheld no otherwise then christ himselfe , for i am christed with christ , and godded with god : i will neither greive for my sin , nor pray for pardon of sinne , and the like . no no , true grace ( which st. august : calleth the first , second , and third grace of christians ) would keep the heart from these high staires , and straines of pride ; it would fetch them off such mounted thoughts , and change them into mournefull complaints , that they must needs , will they nill they admit the cananit and iebusits within their borders , & that they must finde sinne in them as a law forcing them to the evill they would not . rom. . . and godly experience concludeth , that humility is a signe of worth , but hautines is never without emptinesse and vanity . emptiest vessels sound lowdest ; and the husbandman liketh better those heavie eares of corne that hang downe their heads , than the light and empty ones that stand so upright . fewer words would serve wiser men . i will onely say to this proud perfectist , as constantine the great did to acesius one of the proud bishops of the catharists , set up a ladder acesius , by which thou alone maist climbe to heaven . chap. . discovering the third proper ground of this opposition , which is affectation of licentiousnesse , and love of a lawles liberty , ioyned with hatred of holinesse , and the power of godlinesse . as pride attends ignorance , so an inseperable fruit of pride , is vainly to be puft up by a fleshly minde , not holding the head : for pride resteth not in those low and humble principles of christ , but not enduring gods yoakes , nor the suit and service of christianity , raiseth vaine reasonings against obedience , and plotteth new devises for more scope and elbow-roome than the gospell alloweth them that must walke in the strait and narrow way to eternall life . and this righteous judgement of god hath overtaken this sect of men with whom wee deale : of whom , the apostle affirmeth , that while they promise liberty , themselves are the servants of corruption . i know that many that as yet know not the depth of satan in this errour ; nor are dived into the mysterie and mischiefe of these opinions , doe conceive more slightly of their tenents , and more charitably of their persons than there is cause ; and some may thinke it were fitter they should fall of themselves , than be thrust downe by the hand and strength of others : and that the labour might have beene better bestowed against more dangerous persons , and fundamentall errours much more prejudiciall to the truth of the gospell . but i wish such to consider whether any errour can be more pernicious than that which rejecteth all rules of holy , and strict walking with god ? what will it availe us to contend for , or establish a faith which is dead , severed from the life and fruites of holinesse ? or what greater enemies can we deale against than enemies of righteousnesse , who are not onely fallen from the abnegation of the knowne and received truth , but to the oppugnation of it : a fearefull fruite indeede of their declining : but men having once lost the way of truth , know not where they shall lodge . and it will not be amisse to looke into their modell of new divinity , and how cunningly they have molded the whole lumpe , and kneaded it together , that every peece and position of it may let themselves loose from all bands of duty and obedience . for , . they must not live in the presence of god , nor hold him in their sight as a god seeing their sinnes or actions , or displeased with the evill of them : and why now should they forbeare any sinne ? . they must not acknowledge god a rewarder of his owne grace , or any good duty to which he enableth : and how then can they desire to doe good , or be good ? . they must not see their sin a violation of the law , nor as it is an enmity against god , nor as causing wrath to worke in them either humiliation for sinne past , or detestation of sin present , or feare of it for time to come . . neither gods will , nor their owne wills moves them not to forbeare any sinne : not the former , because they are free from all lawes ; not the latter , because the will of man is turned against sin by vertue of inherent holinesse wrought by the spirit ( which they disclaime ) so as onely the light of their mind may condemne it ; and the unseemelinesse of it in a professour may restraine it , else they are loose to any . . they cannot be sick of evill motions , nor detest evill thoughts , nor watch against temptations , nor care for the purging of their hearts ; for how can they sinne being born of god ? or if they could , they are not to be countable for any sin , nor can god take notice of thē . christs most innocent soul was vexed with the molestatiō of injected motions of evil , though instantly rejected , but these must not , they are so holy . they must not live by any rules , but by a wilde and spatious pretence of immediate , and enthusiasticall direction . enemies are they to perswasion and exhortations ; for because christs perfections are their perfection . in vaine it is to perswade either for good thoughts into the minde , or good inclinations into the will , or good actions into the life . they desire not their hearts , nor wills , nor actions to agree with gods law , for it is quite abolished . and much lesse doe they turne the precepts of god into prayers as the saints ever used to doe . oh with what violence must headstrong men be caryed unto unrighteousnesse , when the word as a bridle must not hold them in , nor check or controll sinne in the soule , to lessen either the power or practise of it ? . they must not brooke any longer the difficulty of repentance , nor endure the paines of mortification , because they cannot deny ●hemselves , nor must they ever remember sins past , as the saints have done with much ●●uite , both 〈…〉 owne hum●liation , deut. . . ● . and for their excitation to gratitude and thankfulnes to god for mercy , as the apostle tim . . . . that they may hold their sinnes more securely , they free themselves from all feare of woe and judgement , and from all the strokes of god , or his word , and so by themselves dote in a false peace . for gods hand cannot reach them , for he cannot be displeased with their sinnes , and much lesse temporally correct them : and thus they refuse all crosses , either as meanes of mortification , or of profiting in holinesse . heb. . . psal. . and they flye the stroke of gods word , in a faithfull and free ministery , and cannot endure this legall preaching , as men that must hold their sinnes ; but must not heare of them , nor beare reproofe of their iniquity . to all these profane opinions , they disclaime all precepts , and practise of sanctification , and all increase in holinesse . they revile the preachers that call and urge men by rules and motives to sanctification , as calling men backe to the justification of the law. what a case now are these mē in ? how can they expect heaven , that not only loose themselves from the holines of them that must be inhabitants there , but hate it , and resist it ? whereby they cast themselves from the turret of perfection , farre below the state of nature . for though every naturall man is destitute of personall holinesse , and of the love of it ; yet every naturall man will not disclaim , revile , or contest against it . how can they justifie their calling , and out-boast all men in the assurance of their calling ? seeing there is no effectuall calling but unto holines . thes. . . god hath not called us to uncl●anes , but unto holines . and if every beleever be a saint by calling , how can they be called that sever sanctification ( that is the love and practise of holines ) from effectuall calling ? they onely have received the grace of new creation , that are created to good workes , which god hath ordained to walke in , eph : . . . how doe they frustrate the end of their adoptiō , which they pretend ▪ for why are wee adopted to be sonnes , but to bee made conformable to the image of christ ? for can he be a sonne that beareth not the image of his father ? that onely was cesars coyne that carried cesars superscription . may this loose conceit prevaile , the maine office of christs priesthood shall be in vaine , both in respect of his sacrifice , and of his intercession : his sacrifice , because for this cause he sanctified himselfe , that beleevers should be sanctified through the truth , ioh. . his intercession and prayer is that the elect may be sanctified , verse . . father sanctifie them . shall christ as a priest sacrifice himselfe , and make such earnest prayers for sanctification of beleevers ? and is there no such thing , or if there be , may not we preach it , and vrge it ? or can any libertine disavow and scorne it , but hee must also renounce & reiect the priesthood of christ ? i hope no man will cōceive these to be slight things which entrench upon the foundation . . but how comes it to passe , that they reading the scriptures , and in them so many , and so expresse and vnavoidable places ▪ calling the saints not only to the study , and practise of holinesse , but also to growth and encrease in holinesse , that yet they should persist in this delusion ; yea and defend it against so cleare a light ? surely because they will not submitt to gods authority , but have pulled them selves from under his rule , he hath in justice put them out of his favour , and given them up to themselves , and to satan to blinde them , who are so willing to bee blinded : and hee is cunning enough under a pretence of christian liberty to hold thē in perpetuall chaines of spirituall bondage ; else could they not seeke to elude so cleare places . as . cal us to holinesse , thes. . . . this is the will of god , even your sāctificatiō . pet. . . be ye holy in all maner of conversatiō , for it it is written , be ye holy as i am holy . which call gods people to increase in holinesse , thes. . . we exhort you to increase more and more , and this is a commandement given us by our lord iesus christ. verse . . pet. . last , but grow in grace , and in the knowledge , &c. cor : . . be abundant in the work of the lord. rev. . let him that is righteous be righteous still , and let him that is holy be holy still . is now the spirit of god idle in all these and the like precepts ? or doth hee call men now to the justification of the law ? or is he idle in his exhortations to sanctification ? or are wee so while wee urge men in the words of the same spirit ? the objections are light and windy , as the opinion it selfe is . object . that beleevers are carried by an inward principle of new creation : a good tree cannot chuse but bring forth good fruite , without all these outward motives . answ. the principle of good fruit is within the sappe in the roote , but there be externall helpes , without which it will never be produced ; as the sun , the soyle , the ayre , the shewers , the gales of winde . so a beleever , a tree of righteousnesse , hath an inward principle flowing from his root , which is christ , without whom he can doe nothing ; but it is fruitfull by meanes not to be neglected , because they are of his owne appointing , and wherin he wil make us fruitfull . cor : . . by the grace of god i am that i am : and his grace was not in mee in vaine ; but i laboured , though not i , but grace in me . object . god spirit is all in all , and doth all in us , and we have nothing to doe . answ. god leadeth beleevers by his spirit into good workes , and produceth holy acts in them , but not without use of meanes . for . he puts the law into their hearts : . transformes them by obedience into the image of the word : . he still prompteth and suggesteth according to the word , in the things of gods glory and worship ; the spirit incites to the use of the meanes of grace , of the holy ordinances , to the pleasures and delights of gods house , and such things as uphold our spirituall being . object . but christ is our righteousnesse , and sanctification ; what use of any righteousnesse or holinesse of our own ? answ. christ is not the righteousnesse of justification to any person that is not washed , and sanctified , cor : . . . none can be righteous by a righteousnesse infused from christ , but thence floweth an inherent righteousnesse renewing our nature : for he gives us a godly nature , and purifieth our soules by the spirit : and thence issueth an externall righteousnesse of life , which is an evidence of our justification by faith : for he that doth righteousnesse is righteous . object . but what can be added to perfection ? if we be not compleat in christ , there is defect in his merit ; and they that drinke of his waters thirst no more : and wee can desire no more than wee have in christ. answ. but that perfection here to which nothing can be added , is the dreame of waking men , contrary to the scriptures , contrary to the practise of saints , whose studie was and is to increase more and more . contrary to their experience , the best of whom complaine , that they have not yet attained , nor never shal , till that perfect come . contrary to their prayers , and vehement desires after further grace . contrary to the nature of true grace , which is still desirous of more . for it is not possible , but that they which have tasted how good the lord is : should desire the sincere milke of the word to growe by it . the saints have not so drunke as yet , that there remaineth no thirst after christ ▪ for there is a twofold thirst . the former is of totall indigency , or a whole want of christ ; and this is satisfied in the beleever , that hee shall never so miserably thirst againe . the latter is a thirst after a more plentifull fruition of christ and his spirit , and graces ; and this is never fully satisfied in this life , but the privation of the former thirst , is the generation and position of this latter . revel . ● . . let him that is athirst come . . object . but we are called to the liberty of the gospell , and are free from all compulsion of lawes , and from all other rules than the motions of the spirit : for where the spirit of god is , there is libertie . cor. . . answ. what kinde of liberty this is , we have seene already , which is not from the rules and direction of the law , for the apostle saith not , that wee are called to libertinisme , or a freedome from obedience to doe what we list , as being without the reach of the law ; but a freedome from the rule , and command of sin , and a sweete peace and ease in in the soule , not grounded on rejecting the commandements , but rather upon a free and sincere regard and love of them . thus david professeth , that hee will walke at libertie , not because hee will cast off the precepts , but because hee did seeke the precepts . but we have stayed long in discovering . the ignorance , . the pride , . the profane licentiousnesse of this schisme : wee must proceede to that which followeth . chap. . answering some of the principall objections of the libertines . obiect . is this our text , rom : . . ye are not under the law , but under grace . whence thus they reason . to them that are not under the law , but under grace ; to those the law doth not belong , but it is to them abolished and void : but beleevers are not under the law , &c. therefore . answ. . there is a twofold being under the law. first , a being vnder the curse , burden , malediction , condemnation , and coaction of the law ; thus no beleever is under it . secondly , there is a being under the obedience , rule , counsell , and direction of the law ; and thus beleevers are under it much more than before ; as christ himselfe also was . for they are now by the free spirit of christ framed to a free and voluntary obedience of it . so saith august : the law made us guilty by cōmanding but not assisting ; but grace assisteth every beleever to be a keeper of the law. this objection will be also fully satisfied by applying the former distinction of the law. considering it . in the matter and substance of it . and thus beleevers are still under it ; both for performance of all holy duties of it , and forbearance of all the evills prohibited by it : . in the manner of obedience , and in the consequences , and appendices of it ; and thus are they not vnder the rigor , coaction or strict exaction of it , and much lesse under the curse , malediction or condemnation of it . but this objection hath beene before abundantly satisfied in the . & . chapters . and therefore i passe it now more breifly . obiect . gal. . . so many as are under the workes of the law , are under the curse . therefore , either the law is utterly void to christians , or they are still under the curse of it . answ. the apostle saith not , that those to whom the law appertaineth , are under the curse ; but those that are under the workes of the law. . the workes of the law are twofold . either workes of obedience , done in humility , by way of duty , in testimony of thankfulnesse , and of our conformity with christ. or . workes of the law done in pride , to seeke justification by the law , and the workes of it , and so to promise to themselves eternall life by the observation of the law . and those onely that are thus under the workes of the law , are under the curse : and the meaning of the holy apostle is no other , whose scope in his whole discourse is to beate downe such as sought to set up justification by the workes of the law , and not by faith onely ; as appeares plainly in the next verse . for that no man is justified by the law in the sight of god is evident , for the just shall live by faith . but though no beleever can in the second respect bee under the workes of the law for justification ; but he must be under the curse of it : yet it follows not that hee is not under the workes of the law for obedience , and yet not under the curse of it . this place is indeed an hammer and hatchet against popery , who by seeking iustification by the workes of the law , thrust themselves under the curse of god ; for if the curse , attacheth him that seeketh righteousnesse before god by moses law ; how much more accursed are they that by observation of humane laws and traditions , by humane satisfactions and impositions , seeke to demerrit god , obtaine without christ , what onely christ can procure . the greater is their sinne and danger , who after the knowledge and profession of the truth for some politick and worldly ends runne back into recusancy , and popery , which is the way of perdition , apparently renouncing the blessing of justification by free grace ; and chuse the curse of the law , which shall runne into their bowells as water : of such apostacy may be said as of iudas , it had beene good for them they had never beene borne . obiect . . to whom the law is not given , to those it belongs not at all , but the law is not given to the righteous , tim. . . therefore it belongs not to beleevers being justified . answ. . the scope and intention of the apostle is not to abolish the law , who in the words immediately going before saith that the law is good if it be used lawfully : which words clearely import and imply , that among beleevers there is a good vse of the law , which true use hee shewes in the fifth verse , namely , to be a guide and direction to the duties of love and charity , which is now the effect of faith , as the words plainly show : for the end of the commandement is love , out of a pure heart , a good conscience , and faith unfained . note , that the apostle maketh that love which is the end of the commandement , a fruite and effect of faith : and therefore a beleever is not loosed from the love and obedience of the law by faith , but tyed unto it . . the sence of the apostle is not , that a righteous man can be under no lawes ; for adam in innocencie was a most righteous man , and yet was under the law , both in generall , under the whole morall law ; and in speciall , under the law concerning the forbidden tree : and this law was given to the most righteous man in the world . innocency and righteousnesse in perfection exempts no creature from the law of his creatour . but the apostles meaning is , that the law is not given against a righteous man , that frameth his course according to the law ; it dealeth not with him as an enemy that assenteth unto it , that is delighteth in it in the inner man , that is ruled and ordered by it ; it can pronounce no sentence of damnation against him ; it neither can justifie him who is already justified by faith , nor yet can condemne him . and that this is the true meaning of the apostle appeareth by arguments in the text . . in the originall word 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which implieth an action or plea of god against a man ; and that the law is not gods action , or plea against a righteous man to bring him under judgement , or subdue him under the sentence of it ; for christ hath freed such a one from the curse by his merit , and obedience , as also by his spirit made him a lover of the law. and this is the same in sence with that of the apostle , gal : . . against such ( namely as expresse those recited fruites of the spirit ) there is no law : for the law is so farre from condemning such , as it is a witnesse rather of their conformity to it selfe , and consequently of their love and obedience unto god , and of their similitude with iesus christ. argument in the text is , in that the lawlesse and disobedient are said to be wrapped up in the full damnatory power of the law : against all whom it is gods plea and action , yea the bill of inditement to their condemnation . . neither is the law given to the just , to wring obedience from them by terrours , or threatnings , or expectation either of threatnings or rewards : the just are not under the law in this servile manner of obedience , as are the lawlesse and disobedient : for by a free spirit of grace they doe the works of the law , so farre as they are regenerate ; and the law to them is not a compelling commander , but a sweet and faithfull counsellour , and rule of life . but although the law be not given to the just , to fasten any crime or curse upon them , nor to exact personall , and perfect obedience for righteousnesse before god ; nor to force , compell , or rigorously exact obedience from them : will it follow , that it is no way else given unto them ? or not as a rule of direction for obedience , and a line and square of good works and christian life . and these answers will fully satisfie all those other places of like sound and sence : as gal. . . if yee be led by the spirit , yee are not under the law ▪ rom. . . now ye are delivered from the law being dead unto it : that is , yee are freed from the law as it is the strength of sinne , as it irritateth , and provoketh to sinne , as it did while wee were in the state of nature , as it wrapps the transgressor in the curse , and as it forceth it selfe by terror and constraint : for now the beleever serveth in newnesse of spirit , not in the oldnesse of the letter ; that is , freely from a renewed spirit obeyeth the law as the rule of holy life . obiect . . gal : . . stand fast in the liberty wherewith christ hath made you free ; and be not intangled againe with the yoake of bondage : that is , say they , the law ▪ gal. . . christ hath freed us from the curse of the law. answ. it is not said that christ hath freed us from the obedience , or command of the law , but from the curse of it ; which we question not . . christian liberty is not a freedome from the obedience of it , but rather from the disobedience of it : rom. . . being free from sinne , ye are made the servants of righteousnesse : we are called to liberty , but we must not use our liberty as an occasion to the flesh ; but to frame to the commandement , by love to serve one another , gal : . . where the apostle plainely proveth , that christian liberty looseth us not from the observation of the law , but straitly enioyneth it , for the whole law is fulfilled in one wo●d , which is love ▪ v. . . ●s they 〈◊〉 the same stone , so i● must returne upon themselves , we must therefore againe tell them , what are those parts of ●●ristian liberty , which the apostle aymeth at : and if they thinke that the apostle best knew his owne meaning , they shal take them from himselfe . the first of them is , freedome from the burden of legall ceremonies , sacrifices , circumcision , and beggarly rudiments , which were heavy yoakes ; which being abolished by christ , christians must never entangle themselves with them any more : and that the apostle directly speaketh of these in the place alledged , see v. , . if yee be circumcised christ shall profit you nothing : therefore stand fast in your liberty . the branch of our liberty is from the curse of the law , in that christ was made a curse for us : with which most ponderous and pressing yoke we must never entangle our selves any more , by seeking justification by the workes of the law , and to settle us firme in this our liberty is our apostles ayme and argument . gal. . . . the third branch of our liberty is freedome from perfect impletion , and personall performance of the whole law for justification : for thus we are no more debters to the law , gal. . . nor must ever returne to that bondage to seeke righteousnes and justification by the law , in whole or in part : for christ is become of none effect unto you , whosoever of you will be justified by the law , yee are fallen from grace , verse . the . branch of our purchased liberty by christ is a freedome from the threats and terrors of the law , compelling and forcing obedience : and now not feare but love must chiefly const●aine us to duty ; not compulsion , or carnall respects , must ca●● , u● as slaues to the commandement , but now discerning the holinesse , excellency , and righteousnesse of the law , the heart is moved freely to runne the ways of god , gal. . . if wee live in the spirit , we must walke in the spirit . obiect . . the law of moses was given onely to the iewes , and was to endure but vnto christ , luke . . the law and the prophets were till iohn . and christ is the end of the law to every beleever , rom. . . answ. . the law for writing , and some circumstances was given to the iewes by the hand of moses : but in respect of the substance , and matter obedience , belongs unto all men of all ages and nations . because , . it must stoppe every mouth both of iew and gentile , rom : . . . it must judge every man according to his work , both iew and gentile . . it seemes the prophets are abolished as well as the law. but i hope they will not say , that all the doctrine of the prophets is abolished . it is true , that the whole propheticall doctrine , which did signifie , or prophecy , or promise good things to come ; when christ was actually come , received accomplishment , but not abolishment : which is tertullians distinction . but much other positive doctrine of the prophets , is as usefull and proper to us , ( for whom it is by speciall divine providence reserved ) as it was to the ages to which it was first directed . and even so the law , which in respect of shadowes was to continue till iohn ; in the substance of it is a permanent and everlasting doctrine , directory , and deriveable to all the ages of the world . . christ is the end of the law ; but as augustine wittily distinguisheth ; the perfecti●g end , not the destroying end . for , . he was the end or scope , unto whom the law , especially the paedagogie of moses was directed . . hee was the end also of the morall law , because hee fully and perfectly obeyed the law , and so the law in him attained his proper end , as it had not else done among all the sonnes of men . . he is the end of the law , on whom all the male diction of the ●aw fell fully , and perfectly , and had on him full accomplishment . . he is the end of the law , in whom all the blessings and promises of the law attaine their end ; for they are all in christ yea , and amen : all of them in him , & for his obedience , are exhibited & compleat . . he is the end of the law to every beleever for righteousnesse , in that he doth bestow and impute unto us that full righteousnesse which the law requireth of us ; and in that by the donation of his spirit , hee kindleth in beleevers a new obedience framed unto the law ; so as they begin a renewed obedience of it in earth , and fulfill it perfectly in heaven . whence issueth a cleane contrary conclusion . if christ be the end of the law , wee are therefore faster tyed to the obedience of it than before . very false therefore is that position , that the law is at such an end , as it can nore command a man in christ , than a dead man can command his wife ; or a master his servant when hee is made free . to which traditionary doctrine carried from woman to woman i answer . . that the apostle saith indeede , rom : . . that by christs death wee are dead to the law ; namely in regard of the curse , and of those rebellious motions excited in us by occasion of it ; and in regard of the terrour and rigour of it ; as a woman is from the threats and rigour of a dead husband : but the apostle saith not , that the law is dead either in respect of the direction of it , or our obedience to those directions . . as the apostle saith , we are dead to the law : so he sheweth the end of our freedome from so hard an husband ; namely that wee might be married to another : i. to christ raised from the dead ; the effect of which marriage is not a barren life , but to bring forth fruit unto god : the blessing of the marriage betweene christ and the faithfull soule is fruitfulnesse before god ; so as this death of ours to the law bringeth in a new subjection unto it : which is indeed the height of our christian liberty here , and proceedeth from the spirit of freedome . . his shift is too short to shuffle from the first covenant to the second ; and as false is it to say , that the law is the rule in one covenant , and not in another : as if the matter of the first covenant and second were not one and the same ; the righteousnesse , and obedience of both were not one in substance , differing in manner of apprehension and application . shall any live by vertue of the second covenant , that doth not these things , or that brings not the righteousnes of the law in himselfe , or his surety ? chap. . resolving sundry other objections alledged to prove the abolition of the law. obiect . . to whom all the commanding power of the law , under paine of the curse , and the enjoyning of good workes for justification : as also to whom the condemning power of the law is abolished and ceased , to them the law is altogether made void , and abrogated . but to beleevers both such commanding power , and condemning power is ceased . and therefore , &c. and thus they further explaine it . suppose a justified man commit adultery , or murther , or be drunke , the law of god can take no hold of him , nor the just god can punish him by the law , being utterly abrogated to such a person . answ. the former proposicion is apparently false for the law both for ma●ter and forme stands in force to justified persons , and retaineth on them a commanding power , and enjoineth on them good works , although the manner of commanding in the rigor of it is to them abated : for how ord●●●rily did christ and his apostles command the workes of the law to beleevers , and that under strait penalties read math. . and . chap. and telleth his followers that when they have done so farre as they can all the things of the law ; they have done what was their duty , and that they were bound unto , luke . . . these confused men distinguish not betweene the condemning power of the law and the law it selfe ; yet this distinction cutteth the si●ewes of this obiection : for can it prove the law itselfe abolished , because the condemning power of it is to some removed by christ ? or if certaine uses of the law bee abolished , as in way of righteousnesse , life and salvation ; or in way of terrifying , accusing , or condemning the iustified by faith : must therfore the law it selfe , and all other uses of it be abolished . . what beleever conceives himselfe under the commanding power of the law , to bee iustified by it ? or to expect to stand righteous before god by their obedience ? as these men vainely dreame : no they have other ends of their obedience to the commandements of the law. as , . to testifie their indeavor in obeying the righteous law and will of god , and their conformity to his image in the same . . not for the justification of their persons , for that is onely by christs compleat obedience made theirs by faith ; but for the testification of their iustifying faith : according to the direction of the apostle , iam. . . shew me thy faith by thy works . . not for the attaining of salvation it● pet. . . give all dilligence to make your election sure . how may we ? for if wee doe these things &c. not to merrit any thing , but to encourage themselves in the way of obedience , by casting eye on the blessed remuneration freely promised , and performed to duties of love to god , and man ; begun and perfected by faith in christ. heb. ▪ . moses had respect to the recompence of reward . yea our lord himselfe , for the joy that was set before him endured the crosse and despised the shame . heb. . . all these are other ends which beleevers propoūd to themselves in their obedience then to be justified by it . . i answer , it is utterly false and wicked , that gods law taketh no hold of a justified person committing hatefull sinnes , as of murder , adultery and the like . for although christ have freed him from the curse and vengeance , and the eternall damnation of his sinne . rom. . . yet may the law take hold on him for a stinging correction , and a sharp punishment according to the scandall of his sin . did not the law take hold on david , when with so many other evills ; gods sword was upon his house for ever , for his scandalous sins ? did not gods law lay hold on moses & aaron , then whom none was more faithfull in gods house ; when for sinne they lay under sharpe rebukes , and chastisement , and were barred the land of canaan ? object . but these were examples in the old testament , before christs death . answ. and are not beleevers in the new testament subject to the same law , and penall statues of correction ? were not examples of the old testament examples to us that wee should not sinne as they sinned ? how could we sin as they did , if we were not under the same law ? or what else but the law taketh hold on beleevers in the new testament , when for the unworthy use of the lords ordinances they are judged of the lord , even for this cause , saith the apostle . object . some say , they were hypocrites that were judged . answ. as if they be hypocrites that must not be condemned with the world . . but of all their assertions , tha● is a● blinde as bo●de , that if god call a beleever to account for the breach of his law : hee may say , god hath nothing to doe to call him to account : hee may refuse to be tried in that court. if god shall say , leave such a sinne ▪ or be damned ; doe such a duty , a●d ●e saved : he may say , we will doe neither the one nor the other on these tearmes . well may he say , and more , that his tongue le ts fall unseemely tearmes : and it hides his nakednesse but a little to droppe out , that his meaning is , that god hath nothing to doe to call a beleever into the court of nature . for howsoever hee will teach god what hee hath to doe , or what he hath not to doe ; he might long since have beene taught , that god will require of us even that righteousnesse which he put into our nature : and that is a talent which we must be countable for as well as any other . obiect . . those that have the spirit of god for their rule , and doe all by a free spirit , they neede not the law to rule or urge thē : to them it is vaine and needlesse . but all beleevers have the spirit to rule them ; and they doe all by a free spirit . therefore . answ. the former proposition is false , that those that have the spirit to rule them , have no neede or use of the law : and as grosse to conceive the spirit and the law contrary : which are indeed inseperable : for the law is the instrument , the spirit is the workmaster ; the law is the rule , the spirit the applier of that rule . the spirit is so farre from destroying the law , that he writeth it in the inner parts , he addeth clearenesse and light unto unto it ; he worketh love and delight unto it . . it was ever the wicked conceit of libertine enthusiasts , that the spirit worketh our obedience immediately , and by himselfe alone , rejecting all meanes ; whereas he worketh it in us ordinarily by the word , the law and the gospell . ioh. . . the spirit sent to beleevers , shall not speake of himselfe : but whatsoever hee shall heare , that shall he speake . he is in himselfe the spirit of illumination , but enlighteneth beleevers by shewing them what is to be done by the law , and what is to be beleeved by the gospell . . is the spirit therefore a free spirit , because hee frees us from the law ? no verily , but because he sets us free to the performance of it . this reason holy david gives us , psal : . . i will then runne the way of thy commandements , when thou hast enlarged or set mee free . or is that the duty of a free and willing subject to cast off the lawes of his king ? no but most freely and willingly to obey his law : and this is the freedome wrought by the free spirit in free and ingenious christians . . to say , we obey god by by the spirit without a law or a commandement , is a meere non sence : for is any obedience without a law ? is not our rule to doe onely what the lord commandeth ? what can be more ridiculous than for a subject to professe obedience to his prince , but yet hee will not be under any law ? and to say they obey of love , and yet obey no commandement , is as fond and false . ioh : . this is the love of god , that we keepe his commandements , and his commandements are not grievous ioh : . . if ye love me , keepe my commandements : love must ever looke to the commandement . obiect . . those that are under the law of christ , are not under the morall law. but beleevers are under the law of christ , gal : . . and so fulfill the law of christ. therfore . and thus doe they further unfold themselves , that wee may understand them : consider ( say they ) men as creatures in their naturall being , thus are they under the morall law given by their creatour : but consider them as redeemed and new creatures , they are freed from that law , and onely tyed to precepts taught by christ in the gospell : which teacheth to deny ungodlines and worldly lusts , and to live soberly justly and godly in this present world : tit : . . answ. here is a whole bundle of errours to be untied . . the proposition is false , that beleevers who are under the law of christ , are not under the morall law ; seeing the law of christ is for substance the same with the morall law : for what is the law of christ in the place alledged , but the doctrine , precept , and commandement of christ enjoyning the love of our brethren , & bearing their burden : which the apostle opposeth not to the morall law , ( as these sectaries doe ) but enjoyneth it as a more necessary law , than all that heape of ceremonies to which the false apostles would have brought them backe : against whom he strengtheneth the beleevers of that church , through that whole epistle . . it is frivolous and popish to conceive the gospell a new law : for is not the covenant of grace the same in the old testament , and new ? and did not the holy men in the olde testament , mose● david , samuel , daniel , and the rest enjoy the same covenant with us or were they saved by another gospell than we ? or did not they frame their lives to the same sobriety , righteousnes and holinesse that we doe ? did not the apostles preach and write the gospell ? yet . ioh. , . they professe : we write no new commandement , but the old which yee have had from the beginning . and what was that , but the same which was written in mans nature before the fall , and after written by gods finger in tables of stone : which same commandement , though he call a new commandement in the next verse ; that is not , because it is another in the substance , but the same law of love renewed , and reinforced upon new grounds by christ the great law-giver . and ratified both by his owne doctrine and example , and in this new manner it was never urged before . . so farre is the law of christ fro● 〈…〉 morall law 〈…〉 according that 〈…〉 of s. august . the law knowes to command , but the gospell to assist to the commandement . true it is , that christ abolished all lawes that made difference betweene man and man , iew and gentile , eph. . yea and the morall law , so farre , as it made difference betweene god & man beleeving . and . as it is opposed to the gospell : and . as it hindreth entrance into the kingdome to beleevers . and . as any thing in it was accidentall , significative , circumstantiall or tempoall . but all matters substantiall , essentiall and eternall , christ by his law hath confirmed to continue for ever . this harmony of the morall law and christs law , judicious calvin in his harmony avoucheth , the whole law ( saith hee ) agreeth with the gospel both in condemning the sa●e vices , and commanding the same vertues . and if this be so , then certainly it destroyes not the law. and pare●s on rom : . . saith , they erre that thinke the law repugneth christ in the gospel . . it is little under blasphemie , that they oppose the father , and the sonne , as if they had diverse wills ▪ divers rules , or contrary lawes ; wheras the son professet● , that hee spake nothing from himselfe , but from the father ▪ ioh. . : besides , how doth ignorance befoole them , in ●e●ling us that christ as 〈◊〉 hath loosed us from the obedience of the morall law due to our creator ? for is not god the redeemer the same with god the creator ? is any honour due to the father for creation , that is not due to the sonne for creation ? ioh : . . that all men should honour the sonne as they honour the father : or is any honor due to the son for redemption , that is not due to the father for redempt ● ? did not god the father give up his son for our our redemption : & shall not we well requite him in casting off all duty belonging to him as our creator ? or can the addition of the greatest & most singular benefit that we are capable of , loose us from our former duty , or rather tie us faster ? certainely the gift of christ for our redemption , doubleth , and fastneth the bond of love and dutie betweene our creator and us , but no whit doth slacke or loosen it . such poore shiftes , and doubts are they driven un to , as a silly hare close followed , and hard runne . chap. . shewing how these libertines runne against the streame of our worthiest writers , graciously instructed to the kingdome of heaven . it is not unusuall with impostors , when they ure driven off the authority of the scriptures , to shroud and hide themselves with some humane testimonies wrested , and for most part distorted from the true meaning and intention of their alledged authours : and even so doe these men pretend that they have the consent and authority of sundry protestant writers , of great note and name in the church , to strengthen and confirme their novelties : wherein they are impudent to admiration ; seeing there is never a learned man that ever i met with that sideth with them in the abrogation of the law ; nay not any , but as occasion is offered , doth urge the morall law as of great use to guide all true beleevers , and justified persons in the right way of godlines , and all christian dutyes . with what boldnes doe they claime mr. luther to be wholly theirs , and themselves to bee wholly of his judgement : and that they hold nothing in this point but what they sucked from his breests ? let us therefore see in this one instance how they serve all the rest . and first i affirme that m. luther was so farre from being an antimonian ▪ that no man doth more expressely and soundly overthrow and contradict this wicked opinion than he , neither can any man desire a stronger humane witnes against thē thā m. luther . read his words with a pause and judge . satan ( saith hee ) stirreth up daily new sects : and now last of all he hath raysed up a sect of such as teach , the ten commandements are to be taken out of the church , & that men should not be terrified with the law. and after , such is the blindnesse and presumption of franticke heads . and are they other that challenge luther the patrone of a sect , which himselfe saith , the devill hath raised ? and page . he speaketh of three sorts of men that abuse the law. first those that seeke justification by the law. secondly . those that will utterly exempt a christian man from the law , as the brainsicke anabaptists went about to doe . and of this sort are very many also at this day which professe the gospell with us , who dreame that christian liberty is a carnall liberty to doe whatsoever they list , &c. on cap : . . and on cap. . . pag : . here i admonish ( saith hee ) all such as feare god , and especially teacher of others , that they diligently learne out of paul to understand the true and proper use of the law ; which i feare after our time will be troden under foote , and utterly abolished by the enemies of the truth . it is easie from these words of mr. luther to collect , that , . hee did not conceive the law thrust out of all use by christ : for then why should men fearing god learne the true use of it ? . that if hee feared men would abolish it , then his judgement was it ought not to be abolished . . that if hee esteeme this sort of men that would abolish the law , enemies of the truth : then certainly he is not their patron in this loose and carnall opinion . and pag. . forasmuch as wee diligently and faithfully teach these things : we doe therefore plainly testifie , that we reject not the law , and workes , as our adversaries doe falsely accuse us : but wee doe altogether establish the law , and require the workes thereof , and wee say the law is good and profitable . and cap : . . pag. . it is necessary that godly preachers should as diligently teach the doctrine of good workes , as the doctrine of faith : for satan is a deadly enemy to both . is luther now yours ? is hee not as contrary , and directly contradictory to your foolish tenents as the sunshine of midday is to the darkenesse of midnight ? doth not he disclaime you as adversaries , yea as false accusers , while you challenge a line or syllable of his doctrine in the patronage of your delusions ? you reject the law , and workes ; he professeth , he rejecteth neither : you abolish the whole law wholly ; but he establisheth it : you reject them for legall preachers that teach not christ aright , who urge men to the duties of the law ; but he imposeth it as a necessary part of their office to urge the law , yea as necessary as to teach the doctrine of faith . for shame therefore never claime luther more , nor father your fooleries on him , than whom you have no stronger enemy . object . but doth not mr. luther say , on ●ap . . . that christ hath abolished all lawes of moses that ever were ? answ. y●s , all the lawes of moses whereof he speaketh in that place : for take the whole sentence , and yee shall know his minde . where christ is put on , ( saith he ) there is neither iew , nor circumcision , nor ceremony of the law any more : for christ hath abolished all lawes of moses that ever were : that is , all ceremoniall lawes . yea and the morall law so farre as in moses hand accusing , terrifying , and condemning the beleeving conscience : in which regard it should be utterly ignorant whether there were any moses , any law , any iew. ibid : object . page . so many as are justified , are justified not by observation of mans law , nor gods law , but by christ alone , who hath abolished all lawes . doth not mr. luther clearely say , that all lawes are abolished ? answ. nothing is more true ; for even the morall law in respect of justification is abolished to the beleever , which is mr. luthers expression : but that either the law it selfe in the substance of it , or in respect of all other uses is abolished , luther saith not : and wee say with luther , accursed be that doctrine , life , and religion , which endeavoureth to get righteousnesse before god by the law , or workes thereof . ob. luther on c : p. . saith , that a christian laying hold on christ by faith , hath no law , but all the law to him is abolished with all his terrours , and torments . and page seque : we say that the morall law , or the law of ten commandements hath no power to accuse , and terrifie the conscience in which iesus christ reigneth by grace : for hee hath abolished the power thereof . answ. and we say so too , and holde it our happinesse to beleeve this sweet gospel . but luther speakes here , and every where else of certaine uses of the law , either for justification , righteousnesse and salvation ; or else for terrour , accusation and condemnation : and thus wee have proved long since , and at large , that it is abolished to the beleever . . we say , that to abolish the power of the law , is not to abolish the law : and to abolish the power of accusing and terrifying , is not to abolish all the power of it . and all their shreddings and cuttings , and poore allegations out of mr. luthers workes , doe onely prove the magnifying the article of christian righteousnes against the righteousnesse of the law , and workes : wherein luther was for the singular good of the church most vehement : but none of them doe so much as glance at the abolishing of the law as a doctrine or rule of life ; which mr. luther not in a few places acknowledgeth to binde all men from the beginning of the world to the end of it . but whereas no man better knew mr. luthers judgement than his owne schollers and followers , it will not be amisse to heare them expressing their masters minde in this argument , and delivering unto us what they received from him , from whom to depart in any thing they held almost piacular . chemnitius a most learned and moderate lutheran , in his common place de lege cap. . and . directly refuteth these antinomists , and sheweth that the regenerate are not under the law in respect of justification , accusation , condemnation , or coaction : but yet affirmeth a threefold use of it in the regenerate : . as a doctrine to direct in duties : . as a glasse to see the defects of them : . as a correcter , and restrainer of remanent corruption . in all treading in the very steppes of of luther , as we have declared . fredericus baldwinus a learned professour in wittenberg , passionis typicae lib : . typ : . hath these words . christ our saviour by his most holy merit hath hid and covered ( alluding to the propitiatory ) the tables of the law ; not that we owe no further obedience unto it , but that it may not strike with maledictiō those that are in christ : for the law is abrogated by christ , not in respect of obedience , but in respect of malediction . many more were easily induced to speake the same thing ; but i content my selfe with these , from whom none of the rest dissent : and conclude , that if mr. luthers schollers understood their masters doctrine better than these libertines ; then they sew but a fig leafe to cover their nakednesse , by stretching any of mr. luthers phrases to the proving of their profane opinion . and as mr. luther hath abundantly cleared unto us this truth , so have we the consent of all godly , learned protestant writers both ancient and moderne , whom i might induce as a cloud of witnesses ; not like that cloud which elias his servant did see as bigge as a mans hand , but like the same cloud when it covered the whole heavens . my spare time is not so much , nor perhaps the readers , neither in so cleare a case were it so needfull to make this volume swell with such numberlesse testimonies of orthodox divines , as professedly refute this profane and lawles , and as brainles a fancy . i will onely therefore shew these delinquents against the law to be cast by the verdict of an whole iurie of godly divines . and because they shall not deny but they have faire triall and proceeding , we have empannelled twelve men , the most of which they acknowledge their friends and well-willers , ( even as they challenge mr. luther the foreman to be wholly theirs ) and one man shall not speake for all , as in ordinary trialls ; but as it is in great and extraordinary trialls , every one shall deliver his owne sentence . the first of them is mr. calvin , who in the second booke of his institutions , cap. . sec. . having spoken of two uses of the morall law ; addeth a third , which especially concerneth the faithfull : namely that therby they must daily more certainly know what is the will of god to which they aspire : as also by the frequent meditation of it , they should be excited to the obedience of it , and strengthened in that obedience , and restrained from the offences of it . in the section he answers the libertines objection : but because the law containes the ministration of death , therefore christians must reject the law. farre be from us ( saith he ) such a profane opinion : for moses excellently sheweth , that the law which can beget nothing but death among sinners , hath among the saints a better and more excellent use : and what that is hee sheweth , namely to be one , perpetuall , and inflexible rule of life . in the . section he answereth at large that objection , that the law is abrogated to the faithfull , speaking still of the morall law : namely , not that it doth not still command what is right as it did before , but that it is not that to them as it was before , in terrifiyng their consciences , confounding , condemning and destroying them . in which sense saith he , paul manifestly sheweth that it is abrogated ; not in respect of institution of life , but of the former vigorous obligation of conscience . sect . . thus have i abridged m. calvine his larger tractat upon this argument , wherein wee see him wholly consenting to the doctrine we have propounded through our whole discourse . adde only her unto that in the booke cap. . sect christian libertie , consisteth first in this : that the consciences of the faithfull in the confidence of their justification before god , must lift themselves above the law , & forget the whole righteousnes of the law ( yet saith he no man must hence collect that the law is needlesse : for it doth not therefore cease to teach , to exhort , and incite to good , though before gods tribunall it hath no place in their consciences . the law therefore , by mr. calvins de e●mination abideth by christ a● inviolable doctrine , the which by teaching us , by admonishing , by rebuking , and by correcting , doth secure & prepare us to every good worke . the second is reverend beza , in his defence against castillion , on rom. . . farre be it from me saith he , that i should assent to you , who say the law is dead to them , to whom it is cheifly alive , that is , those that are most obedient unto it , meaning beleevers . for a king doth not more manifestly regine over any , thē those which freely and willingly obey his lawes . see also his judgement constant to himselfe in his annotations upon cor. . . in what regard the ministery of moses is abolshed ; concluding that the ministry of the law is ever to be retained in the church . and in his notes upon ioh : . . he saith . neither is the law abolished by the gospell so farre forth as it commandeth that which is right : but onely so farre as it threatneth death to all that doe not perfectly fulfill it : and as the law by the terrours of death admonisheth us to think of seeking life in the gospell , so the gospell supplieth us with the grace of regeneration , whereby according to the measure of the spirit and grace , we begin to will and to doe : that now the law becommeth to us in respect of the inner man , a sweet master , as the apostle plentifully teacheth , rom : . . and . chapters . the third is learned doctor whitaker , the iewell of the vniversity of cambridge , who when duraeus the iesuite objected against mr. luther the same which these libertines affirme of him , that it was his judgement that the decalogue appertaineth not to christians ; thus gravely answereth : that luther most truly affirmed the decalogue , that is , that condition of the decalogue , either of full and perfect obedience , or of malediction for disobedience not now to pertaine to christians ; because christ to them hath taken away that condition . . that luther saith no more than the apostle doth in sixe or seven places there alledged : and therfore they must first accuse the apostle , or through luthers sides wound the apostle . . he sets downe his owne judgment most expresly . the law ( saith he ) pertaineth to christians ; neither did luther ever deny it : for that justice of the law is immortall , and every one ought to indeavour with all his strength to live mo●t exactly according to the prescript of the law. thus we have this pro●ound and most worthy doctour affording us a double strength ; and together with 〈◊〉 brings us mr. luther wholly and constantly avouching the same truth which we have defended through our whole discourse . the fourth is , judicious mr. perkins , from whose gracious mouth and ministery i received in my youth often the same holy truth , as now in his fruitfull writings appeareth every where . as in his golden chaine , chap : . having set downe the use of the morall law in the unregenerate , he cōcludeth , that the use of the law in the regenerate is farre otherwise : for it guideth them to new obedience , which obedience may bee acceptable to god through christ. and upon gal : . . hee answereth this question ; why the lord saith , he that doth the things of the law shall live : considering that no man since the fall can doe the things of the law : and sheweth that still the lord repeateth his law in the olde tenure : . to teach that the law is of a constant and uncheangable nature : . to advertise us of our weaknesse and shew us what wee cannot doe : . to put us in minde still to humble our selves , after we have begun by grace to obey the law ; because even then wee come farre short in doing the things which the law requireth at our hands . and on verse . he inquireth , that now seeing faith is come , what is the guard whereby wee are now kept ? answ. the precepts of the morall law. the sayings of the wise are as nayles , or stakes fastned , to range men in the compasse of their owne duties . ecclesiast . . . and most plainely he coucheth our whole doctrine concerning the law , in the answer of our question upon vers . . eiusdem capitis . the question is how farre the morall law is abrogated . answer . three wayes . . in respect of iustification . . of malediction . . in respect of rigour . for in them that are in christ , god accepteth the indeavour to obey for obedience it selfe . neverthelesse ( saith he ) the law as it is a rule of good life , is unchangable , and admitteth no abrogation : and christ in this regard did by his death establish it . rom. . . and on c. . . the law must be considered two wayes . first as a rule of life . thus angels are under the law , and adam before his fall , and the saints now in heaven : and none yeeld more subjection to the law than they , and this subjection is their liberty . againe consider it as a grievous yoke three wayes , none can beare it , &c. and in his treatise of conscience , cap. . saith , that the morall law bindeth the consciences of all men , at all times to obedience . the fifth is our learned and industrious doctor willet : bellarmin ( saith he ) is not ashamed to slaunder us , that wee affirme christian liberty to stand herein , that we are altogether freed from the obedience and subjection of the law : vt moses cum suo decalogo nihil ad not pertinent . but we call god and all the world to record , that we witnes no such thing : knowing tha-christ came not to dissolve , but to fulfill the law. here therefore bellarmin fighteth with his owne shadow . but christian liberty consisteth in three things that we are exempted : from ceremonyes : from the curse and guilt : from the servitude and reigne of sinne . &c. and upon exod. cap. . commandement . quest . . saith thus . the morall law is not now in force quoad justificationem : that is , in respect of justification ; but it bindeth quoad obedientiam , in respect of obedience , for we are boūd to keep all the precepts of the law : but yet quoad modum obedientiae et terrorem , in respect of terrour , and rigorous manner of obedience we are not bound . &c. the sixth is that grave and learned bishop downam , whom i must honourably mention , not onely for his worthy parts and labours in the church ; but in the speciall reference of a painfull and worthy tutor and teacher of my selfe in the vniversity . that right reverend bishop , in his treatise entituled , the doctrine of christian liberty , doth exactly ( as his manner is ) open and cleare this whole doctrine , and in section or paragraph . hath these words : the papists charge us , that wee place christian liberty in this , that we are subject to no law in our conscience , and before god , and that we are free from all necessity of doing good works , which is a most divelish slander ; for though we teach that the obedience to the law , is not required in us to iustification : but that wee are free from the exaction of the law in that behalfe : yet we deny not , but that unto sanctification , the obedience of the law is required , & we by necessity of duty bound to the observation therof . and againe , we confesse to be free from obedience , is to be servants of sinne , and the willing & cheereful worship of god is true liberty . and we acknowledge that the morall law of god is perpetuall and immutable , and that this is an everlasting truth , that the creature is bound to worship and obey his creator : and so much the more bound , as he hath received the greater benefits . and after , the more a man is assured of his free justification , the better he is enabled , and the more he is bound to obey it . and the law hath singular use in them that are justified , . as a rule of direction for al obedience . as a glasse of detection of our imperfection to keepe us humble . as a rod of correction in respect of he flesh and old man for mortification &c. and concludeth that section thus . we are therefore in our sanctification freed , though not from the obedience ; yet from the servitude and bondage of the law , in three respects . the seventh is , that learned bishop davenant a speciall ornament of our church , and one worthy to succeed that famous iewell in the sea of salisbury . in his elaborate commentary upon coloss : hath these words on cap : . . seeing this handwriting of the law is abrogated and abolished in respect of the damnatory power of it ; wee gather that it yet retaineth a directory power ; wee may not therefore hence take to our selves a liberty to sinne , but an alacrity in our service to god , &c. the eighth is , bishop cowper ▪ an ingenious and reverend divine , who in his fruitfull commentary on the . to the romans , delivereth himselfe wholly unto us in this point , & in the end of the verse hath these words : albeit by christ we be delivered from the curse of the law , yet wee are not exempted from the obedience thereof . in respect of the one , the apostle said , we are not under the law , but under grace . in respect of the other he had said , that the law is good , and our saviour protesteth , he came not to destroy the law , but to fulfill it , both in himselfe and his members , not onely by righteousnes imputed , but also inherent . for the law stands to us as a rule of our life ; wee love the holines thereof , and strive to conforme our selves unto it . the ninth is that most sound and learned professour of divinity in basil , amandus polanus , who in the . booke of his syntagma cap. . proveth the decalogue , which is the summe and substance of the morall law , to belong unto beleevers , and is of great use among christians , by nine strong arguments . i will forbeare the recitall of them , because the booke is common , and easie to be consulted . the tenth is learned amesius , professour of divinity in the vniversity of franeker , who speaking of the morall law saith , that although in respect of the faithfull , it is as it were abrogated , both in respect of the power of justifiing which it had in the state of integrity : and in respect of the power of condemning , which it had in the state of sin : yet it is of strength and force , in respect of the power of directing . yea , and it reteineth ( saith he ) some power of condemning : because it rebuketh , and condemneth sinne , even in the faithfull : although it cannot indeed condemne the faithfull themselues , that are not under the law , but under grace . the eleventh is hieronimus zanchius , a laborious and perspicuous writer . who in ioh. . saith , that the observation of the law is necessary to a christian man : neither can it be seperated from faith . and in his common place on eph. : loco quinto de legis mosaicae abrogatione , sect . . speaking of the morall law saith , consider the substance of it , it is manifest that it is not abrogated : that is , that christ hath not delivered us from our duty , whereby wee are bound according to the eternall will of god , to worship god , to love our neighbour , and to demeane our selves honestly and modestly , &c. and after , if we consider the substance of the law , that is , the summe of doctrine concerning piety ; wee deny with christ , that the law is simply abrogated ; who said , i came not to destroy the law. but if wee consider the accidents which wee have declared , it is manifest that it is abrogated . thus mr. zanchius wholly agreeth with us in our grounds laid downe for the opening of the point : cap. . the twelfth is our owne worthy estius , from whose learned tongue i received many gracious instructions in my youth whilest he lived in the vniversity . this godly man in his exposition on the commandements , pag : . saith , that the law shall keepe the use that ever it had since the fall till the generall resurrection , and therefore is as needful now to bee understood as at any time . to whom agreeth bucanus , who saith , that the law in respect of the precepts of it shall not be abolished neither in this life , nor in the life to come ; for god requireth perpetuall love both toward himselfe , and toward the creatour suo ordine , &c. loc . de lege . all these worthies have passed a joynt sentence against these violaters of gods most righteous law , and pronounce them guilty of high treason & transgression against the lord ; and of spreading scandalous words and writings against the dignity , equity and validity of his eternall law ; and so against himselfe the most righteous judge and authour of it : and in so high and presumptuous a sinne , in vaine expect they that any should pleade for them . it was elies speech to his sonnes , sonnes of belial , that is , lawlesse men , and libertines , that knew not the lord. if one man sinne against another , the iudge shall judge it : but if a man sinne against the lord , who shall pleade for him ? verse . which implieth a sinne of an high nature directly against god , and very hardly forgiven : surely so is this sinne of an high nature directly against the glory of god , and the majestie of his law ; yet upon their returne and repentance , as they have a mediatour in heaven to pleade pardon , so also the saints in earth cannot but pleade and pray for the pardon of those for whom christ in heaven pleadeth : and even so is our earnest prayer that they may be helped out of their errour , and come backe into the way of truth . but in one sence ( howsoever they applaud themselves ) they have none to pleade for them , never a learned man , nor judicious divine that came in my hands , or under mine eye in all my reading for these many yeares ; nor any classicke authour that leaneth that way . i must needes witnesse to mr. calvin , that they learned not their delirium ( as he calleth it ) out of bookes . and if you will yet persist selfe-wise , and ascribe more to your selves , than to all the protestant divines of such singular learning and holinesse ; then may you make use of my service in producing so many godly writers and witnesses against you ; to fill up your list and catalogue of false teachers that preach not christ aright : and to the names of london preachers , which your scandalous scattered papers , and lost libells mention as pharisaicall enemies to the truth now by you discovered : you may put in calvin , beza , whitakers , perkins , and the rest of the godly bishops , and renowned doctours , who are so cleare also against that which you call truth . it will make a greater noise , that you can contemne such conquered adversaries : for what are your london ministers to them ? much rather doe i wish you would in time consider how dangerous your way now is , while you rise up against the most impregnable , and unconquerable law of god : how the scripture brandeth them for wicked men , that forsake the law , and depart from the law ; and much more that disclaime and revile it . and if those that be partiall in the law , that is , take some , and leave some , be made despised of god , and vile before all people : how much more shall those that reject it all , and in every part , bee justly branded ( as you are ) for a vile generation of men . chap. . containing the conclnsion , and a short direction how the people of god should carry themselves towards the law of god. these premises being all duely considered , it remaineth that such as desire to learne christ aright , should take his directions how to demeane themselves towards his law , which is so holy , just , and good . to which purpose it shall not be amisse to lay these grounds in our consciences , and order our selves by them . first , that in the liberty from the law , consists the chiefe stay and comfort of a christian ; because being now freed from the guilt of sinne , from the curse of sinne , and from exaction of an inherent and personall righteousnesse to justification : hee may now without respect of his owne obedience , and without regard of any righteousnesse of his owne , relie upon the mercies of god , and merits of christ , and challenge his righteousnesse before god , with the the apostle , phil : . secondly , that upon this liberty of justification , ( wherein is no respect at all of our personall obedience ) issueth another liberty of sanctification ; which is a freedome from the bondage and staine of sinne , not wholly and at once , ( as is our justification ) but in part and degrees : and here although the obedience of the law be quite shut out of our justification , yet it is required unto sanctification , and we necessarily bound unto it ; but not to bee thereby justified , seeing wee must necessarily be justified before we can be obedient . thirdly , that the law is an eternall doctrine , and abides for ever ; yea david saith , it endures for ever in heaven : that is , not onely his decree appeares stable by the government , and perpetuall law which hee hath set in the heavens , and cannot be broken : but as saint basil expoundeth it , it abideth inviolably observed by heavenly inhabitants , even the holy angels themselves : so as though it may be contradicted , controverted , and resisted by libertines on earth ; yet it is not abrogable for ever , but abideth stable in heauen . doe the angels in heaven observe it as a rule of holinesse , and doe not the saints in heaven ? doe they live by divers charters ? and if the saints in heaven , who have attained full perfection , and perfect sanctification , are bound to the law , are the saints in earth so perfect , as they are loose from it ? hath not christ done as much for them as for these ? fourthly , that the law of god is the rule of godly life : in which regard holy david calleth it a counseller , and a directer unto good duties : and therefore wee must acknowledge the necessity of this part of the word . the sunne is not more necessary for the day , nor the moone to governe the night , nor a lanterne or candle for a darke house ; than this part of the word , so long as wee are in the night of the world : for without this light we grope in the darke , nothing can be seene , no action can be well done , nothing wanting can be found , no crooked thing can be straightened , no streight thing tried ; nay all our way in which this light of god shineth not , is darknesse , and tendeth to utter darknesse . the pillar of the cloud and of fire , was not more necessary to israel in the wildernesse , for their station or motion towards canaan , than is this shining pillar of gods law to guide us unto heaven : and as it was their happinesse that their pillar lasted them till they entred canaan ; and it had not beene for their ease to have rejected it in their way : so ought we to esteeme our selves happy in the fruition of this holy doctrine , and direction ; and on the contrary these libertines to be unhappy men , who being in as darke , as heavie and dangerous a way , and wildernesse , put out their light , and breake to peeces , and cast away their lanthorne . fifthly , being the rule of godly life , we must square all our duties thereby ; even as a workman applieth his rule to every part of his worke , and declines not to the right hand or to the left : and holy wisdome requireth no lesse , but that , that should be the square of all , which must bee the judge of all things done in the flesh be it good or evill . and hence is it that the lord writeth his law by his spirit in the spirits of the elect , and imprinteth it in the fleshly tables of their hearts , that all their motions , actions , and affections should be conformable unto it . but how doe these lawlesse men , affirming the law to be wholly abolished , denie it to bee written in their owne hearts ? and consequently that they want the spirit , promised to be sent into the hearts of the elect for this purpose : and that either themselves are none of the elect , or that the spirit is wanting in his office , which were an high blasphemy . sixthly , that as the law is a reveiler of duty , so it is a reveiler of sinne too : and discovers the sinfull defects of our best obedience . and because by the law is the knowledge of sin , therefore by the obedience and works of the law can no flesh be justified . that same law that discovereth and condemneth a traytor , cannot acquit him : and it were madnes for him to expect life , from that law which hath sentenced him with death . shall franticke papists ever finde life and righteousnesse by the works of that law which condemns that very fact ? and are not they next to fr●nzy , that after all this so open disclaiming it ; would fasten upon us , that because wee teach the law , wee therefore teach justification by the law. nay , we are so farre from consenting to any such poysoned assertion . that when the gospell promiseth salvation and eternall life , to repentance and good works , wee deny them promised to these , as performances of the law , but only as they are fruits of lively faith , by which the promises of eternal life are apprehended . seventhly , that the law being a constant reveiler of sinne , wee must by the law be still drawne neerer unto christ : not onely by the law to see our sinne , and in our sinne our need of christ : but we must see the law fulfilled for us in christ : else can we never looke comfortably towards the law. and because it revelleth sinne : not onely before we come to christ , to bring us first unto him , but it reverses sinne when we are come to christ : wee must by it be brought to christ still . and it is false that they say , that the law is indeede a scoolemaster to bring us once unto christ , but then wee have done with it , and it with us ; for it must ever bring us to christ ▪ so long as by sinne wee estrange our selves from him , or him from us . that place in galat. . , . nothing contrarieth our doctrine : after faith came we were no longer under a schoolmaster : that is , such a schoolemaster as it was . the place is notably opened by learned pareus , to whom for brevity sake i remit the reader . eighthly , wee must conceiue the law in the substance of it , the image of god written in the heart of adam in innocency , and by the finger of the same spirit written in the hearts of all the elect : and consequently must feare & tremble to sin against this law , which floweth from the righteous nature of god , and the impugning of which is the violating of his owne image , and nature , so farre as wee can reach it . a man may breake the princes law , and not violate his person ▪ but not gods : for god and his image in his law , are so straitly united , as one cannot wrong the one , and not the other . ninthly , wee must frame our selves to love this righteous law , for this image of god ingraven upon it : yea and the more that wicked men hate and resist it , the more that sonnes of belial rise up against it ; wee must love it the more , obey it so much the more , maintain and defend the power and honour of it , with so much the more zeale and earn estnesse , so did holy david , ps. . . wicked men have destroyed the law , therefore i love it above fine gold ; where the prophet concludeth them enemies to god , that are enemies to the law. and . that then is the time to pleade for god and his law , when wicked men most oppose and oppresse it . now then is the time when the godly must awaken themselves not onely to observe , but also to preserve it . finis . notes, typically marginal, from the original text notes for div a -e contra legis adversarios . adversus furiosam sectam libertinorum . nemo miretur aut consternetur cum tam insolitos , & ab omni ratione alienos errores cernas : calv. thes : . quod hostis machinatur in perniciem , convertit deus in adiutorium : aug : epist : ad sextum . deus ecce furentibus obstat . optimus portus poenitentiae mutatio consilii : cic : philip ▪ etiam loquendum cum ecclesia recte sentiente : cyprian : sublime et tumidum dicendi genus ; pere grino quodam idiomate loquuntur , ut qui ipsos audiunt prima facie stupefiant . calv : advers : libert : c : . quemadmodum circulatores , aliique errones , &c peculiari sermonis genere utuntur● vide cap : eiusdem libri . cor : . non est humano aut seculi sensu in dei rebus loquendū . hilar. lib. de trinit . sequamur loquendi regulam quam tradit scriptura , neque extra illos fines evagemur . calv. cap : . cor : . notes for div a -e it is the priviledge of beleevers , not to be under the law. reasons . gal. . . the danger of being under the law , in things how a man may get from under this dangerous state . habak . . . sixe notes of tryall , to know one gotten frō under the danger of the law. ephes. . ▪ notes for div a -e the substance of the law in things . psal. . . the beleever is under the whole substance of the law. seven appendices of the law , in none of which the beleever is under the law. rom. . . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 in which regard it i● called 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈…〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 quod non lic●t acrius urit . gens humana ruit in vet●tum ●e●as . regenerat are not without a law. tim. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . nor under the law in respects . but under , that is , within the compasse of the law notes for div a -e psal. . , iudg. . reason all the same sins are forbidden after faith as before . rom. . . ioh. . . the saints are perfect not perfectists . psal. . . rom. . . . . hypocratis magis fomentis , quam monitis nostris indigent . non dicit non peccat , sed non dat operam peccato . beza . qui ambulant in viis domini , non operantur peccatum , et tamen non sunt sine peccato . august . in psa. conc . . non peccare dei iustitia est , hominis iustitia , indulgentia dei. bern. ser. in cantic . nunc bene vivitur si sine crimine ; sine peccato autem qui se vivere existimat , nō id agit ut peccatum non habeat , sed ut veniam non accipiat . aug. enchirid. haec est regeneratorum perfectio , si se imperfectos esse agnoscant . august . reas. the same duties are required after faith as before . quod accuratius christus exposuit , magis pertinere ad christianos creditur . cor. . cor. . reas : christ cam not to abolish the law , and therefore it is not abolished . christ cam not to destroy the law , why ? but to fulfil it , how ? rom. . . reas. nor the apostles abolished the law. lex et fides mutuo se iuvant , mutuo sibi dant manus . p. mart. but confirme the authority of it . ioh. . . dicatur mihi in decem praeceptis quid non fit a christiano observandum . cant. faust. lib. . fides impetrat gratiam qu● lex impletur . quia quae in lege dicta sunt facienda , per fidem ostenduntur facta . ambros. res : every beleever is bound to strive to conformity with the law. . in his inner man ▪ iustificati amici legis efficiuntur . ambr. in rom. . qui dicit se diligere legem mentitur ; tam enim amamus legem , quam homicida carc●rem . . in his outward man. . in his whole man. notes for div a -e nisi dum scriptu●ae bon●e intelliguntur ō● bene , & quod in ijs non ben● intelligitur , etiam temere & audacter asseritur ; aug. expos . in ioh. trac . . habent ●crip●uras● a● sp●ciem , non a● salutem ▪ de● baptis contra donat. lib. ▪ the first maine ground of this schism ignorance hi quidem hom●nes indocti sunt , ac idiotae , qui non usque adeo evolvendis chartis sunt exercitati , ut exijs de●●ria sua addisc●re potuerint . instruct. advers . libert . cap. . alter cubicularius , alter hostiarius libenter fieri sustinuer●t . cap . c●usdem libri . iune . ignorance of the end of christs comming . . of the nature of the gospel . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . rom. . . . of the nature of faith . godly life is nothing but keeping commandements . hab. . . wee are meere patients in the causes of blessednesse , but not in the conditions of it . christs righteousnesse onely gives right to heaven ; but our sanctification gives a fitnesse and aptitude to it . rev : . iustification freeth the beleever from the condemnation of sinne , but not from inhabitation . imperfect faith cannot make perfect . notes for div a -e persons of beleevers imperfect , yet pleasing to god. and duties also . godly ministers preach not popery in calling for good workes to further mens salvation . non praecedit iustificandum , sed sequitur iustificatum , aug. non necessitate efficientiae , sed necessitate praesentiae . via regni non causa regnandi . distinguish betweene the iustice of works , and the presence of them . iam : . . iam : . . the meritorious cause of salvation , excludeth not instrumentall . qui fecit te sinc te , non salvat te sine te . pet. . . how god sees no sin in his children . . simplex rerum notitia . . scientia coniuncta cum dei voluntate . si deus texit peccata , noluit advertere ; si noluit advertere , noluit animadvertere ; si noluit animadvertere , no●luit 〈◊〉 ▪ maluit agnoscere , maluit ignoscere . quid est enim deum videre peccata , nisi punire peccata ? in psal. . hee that must bring every action good and bad into iudgmēt , must see every action . nunquam vartatur dei aspectus , nihil novi unquā vidit , nulla mutatio 〈◊〉 in dei scientiam , cum ipsa scientia dei est ipsa dei essentia ; & in deo nil nisi deus . cognitio mali bona est . nihil in nobis 〈…〉 quae est a deo , vel 〈◊〉 quo● est a 〈◊〉 ▪ vel gratiae qua datur in christo , quin deo notum est , & totum adprime cognitum . he that recordeth sins past , and pardoned many ages before , must needes see them . many examples hereof in the new testament notes for div a -e ira dei est vel . paterna et castigans quam vibrat in filios . hostilis & exterminans in contumaces . heb : . . christ hath borne all our punishment of malediction , but not of correction . beleevers in the new testament corrected for finne . difference of the iudgement of the godly and wicked wherein . maximu● homicida , latro , et haereticorum h●retic●ssimus . luther beleevers must continue their repentance assidue peccantibus assidua poenitentia est necessaria . ●ugust ▪ beleevers must pray for pardon of sin pardoned . modestiae tantum causa , non ex humana fragilitatis conscientia . ierom. we must pray for pardon of sinne in the court of our owne consciences , as well as in the court of heaven . and for a more comfortable measure of assurance . and in the full and finall fruits and effects of pardon . holiest of men have neede of threatnings . quanto reatus ●er legem factus ●st gravio● , tanto immensitas grat●●e facta est illustrior . par : the same works are both the workes of the law , & of faith , how ? lex fidei aeque atque lex factorū ait , ne concupiscas ; sed quod operum lex minando imperat , fidei lex credendo impetrat , august : isay , . wee call for obedience , not for iustification , but for sundry other ends vnbeliefe an high sin against the law and gospell . ● iohn . the law commands not expresly faith in christ : but implieth it when christ is revealed . adam was not bound in innocency to beleeve in christ , for as hee was not revealed , so adam needed him not , but yet he was bound by the law to beleeve every word of god , whensoever it shold be revealed ▪ the law commands faith as a work done , the gospel as it is an instrument apprehending christ , perk. on math. page . solo auditu horrorem incutere debent , calvin . notes for div a -e so quintinus the libertine tolde calvin to his face , that he disliked his course , because hee understood it not . instruct advers . liber . cap : . si non vis intelligi , non debes legi . the windy conceit of perfection refuted magnum illud electionis vas perfectum abruit , profectum fatetur , bern. in can● ser. . cunctorun in carne iustorum imperfectae perfectio est , hieron : lib. . advers : pelag : three degrees of sanctification , and the highest imperfect . why god would not free his servants from all sinne in life as well as in death the lowly speeches of saints . the haughty and lofty speeches of libertines . tu audes novatiane mundum te dicere ; qui etsi operibus mundus esses , hoc ipso verbo immundus ●●eres : ambr : de poenit l. . c. . pone ac●siscalam , qua solus coelum ascende . notes for div a -e col. . . pet : , many too charitable , not seeing the depth and danger of this errour . iam : i , . the confused lump of libertinisme in poysonfull positions . lex donatistarum . quod vos lumus sanctum est , august . the extream danger of libertines a rai●ing r●bsakey , whose papers i have in my hands , revileth our ministers , & denounceth them ipso facto to stand accursed by the holy ghost , & excommunicate by s. paul , for going about to establish and set up the golden calfe of their own sanctification . they be his own words . the lord rebuke thee satan . rom. . . rom. . . the sacred office of christs priesthood violated . how they come to be blinded against so cleare a light . rom. . . pet. . . ioh. . . pet : ▪ . sitis duplex , vel indigentiae totas●s , coposioris fruitionis . our libertie here is not from the rule of the law ; but from the rule of sinne . notes for div a -e lex reos faciebat ●ubendo , et non adiuvando : gratia adiu vat ut quisque sit legis factor . beleevers under the workes of the law for obedience , not for iustification . the law is given unto a righteous man , but not against him . non dicit 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , non est ●ata lex , sed 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , non est posita . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 the law not given to the iust man for servile , but free obedience . christian liberty frees us not from the obedience of the law , but the disobedience of it . wherein christian liberty consisteth . law and prophets , how farre abolished . legis ●t prophetarū ordo exinde cessavit peradimpletionem , non per destructionem . l. . cont . marc. c. . finis perfic●ens , snon interfictens . aug. in ioh : t●act . ▪ . christ the end of the law wayes . cor : . how wee are dead to the law and the law not dead to us . legem autem decalogi nec posse , nec debes re dici nobis mortuam ; quam vis dicantur legi mortui in quibus non invenit vim pe●catricem regnan●em &c. beza ad defens . contra castel : in rom : . . et postea , legem nusquam invenio dici mortuam , sive de impiis , sive de pijs agatur . notes for div a -e non est ●ecesse nos ab obedientia legis libera●● , quin legis aliquod munus abrog●tur . whitak ●●●tra dur. pag : . cor : . . cor. . l●x●u●ere no rit , gratia i●var● ▪ epist ad innocent . teta lex est consentanea cum doctrina evangelij , de vi tijs vitandis , et virtutibus parsequendis . page . errant qui putant legem repugnare christo ▪ notes for div a -e one of this learned sect said . wee are of luther , and was before the apostles . luther . preface to comment on the gale. non sunt su● lege quoad iustificationem , accusationem , condemnationem , coactionem , &c. est igitur sententia vera , et forma sanorum verborum , esse aliquem legis usum in renatis , & is triplex est &c. de lege dei cap . circiter fi●em , & cap. . de dignitate doctrinae legis contra antinomos . sanctissimo suo merito tabulas legis abscondit , non ut leginullam a●plu● debeamus obedientiam , sed ne maledictione f●r●at ●os qui sint in christo. abrogata lex non quoad obedientiam , sed quoad maledictionem . tametsi digito dei legem scripta● in cordibus habent , bifariam tamen adhuc in lege proficiunt : est enim illis optimum organum , &c. vt frequentie ius meditatione excitetur ad obsequium , in eo roboretur , & a delinquendi lubrico retrahatur . facessat longe ex animis nostris profana istaes opinio . sed una est , perfecta , et inflexibilis vivendi regula . de morali adhuc loquor . non quod illis amplius non iubeat quod rectum est , sed dūtaxat ne sit illis quod antea erat , hoc est ne eorum conscient as perterrendo &c. non ad institutionem pertinet , sed ad constringendae conscientiae vigorem . vt fidelium conscientiae sese supra legem erigant , totamque legis iustitiam obliviscuntur . neque hinc recte quis colligat legem fidelibus supervacaneam esse , quos no● ideo docere et exhortari , &c. manet igit●● per christum 〈…〉 legis 〈…〉 , quae 〈◊〉 do cendo , adm●ne●do , ob●urgando , co●rigendo ad omne opus b●num formet ac comparet . absit ●t ego tibi assentiar ; qui d●cis legem ijs esse mortuam quibus maxime vivit , id est , quos h●bet maxime of sequentes . veque enim rex , 〈◊〉 . neque enim evangelio lex 〈…〉 est praecipit . sed , &c. vt lexiam sua vis sit nobis secundum interiorem hominem magister . per lutheri latera apostolo vulnus infligunt . lex pertinet ad christianos , nec id unquam negavit lutherus : nam illa tustitia legi● 〈…〉 lib. . de paradox , p. cum chirographum legis abr●gatum et deletum sit quoad vim damnatoriam , colligimus illud adhuc habere vim di●rectoriam : non igitur , &c. quasi abrogata et quoad ●im iustificandi , et quo●● vim condemnandi , &c. valet tamē ac viget quoad vim dirigendi , et aliquam etiam vim retinet condemnandi , quia peccatum arguit , et condemnat●m ipsis fidelibus , quamvis , &c. observatio● legis est ne●essaria christiano homini , neque a fide seperari potest . sam : . . i have one of your franticke papers , that have accursed foure most worthy preachers by name , and all the rest whom you are not at leisure to name , that are on their opinion and practise . prov. , psal : , mal. . notes for div a -e psal. . . psal. . psal , , . quoad●ustificationem ●ustificationem , damnationem , coactionem , significatinem ; sed quoad doctrinam , obedientiam . par. in locum . innocency and conscientiousness of the quakers asserted and cleared from the evil surmises, false aspersions, and unrighteous suggestions of judge keeling expressed in his speech made the seventh of the seventh month at the sessions-house in the old-baily ... : wherein also is shewed that this law doth not concern them, they being no seditious sectaries, nor contrivers of insurrections, nor evil-doers, therefore no just law is against them. smith, william, d. . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) innocency and conscientiousness of the quakers asserted and cleared from the evil surmises, false aspersions, and unrighteous suggestions of judge keeling expressed in his speech made the seventh of the seventh month at the sessions-house in the old-baily ... : wherein also is shewed that this law doth not concern them, they being no seditious sectaries, nor contrivers of insurrections, nor evil-doers, therefore no just law is against them. smith, william, d. . , [ ] p. published by a lover of truth and righteousness, w.s., printed at london : . reproduction of original in duke university library. attributed to william smith. cf. bm. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng kelyng, john, -- sir, d. . society of friends -- great britain -- early works to . law and ethics -- early works to . - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion the innocency and conscientiousness of the quakers asserted and cleared from the evil surmises , false aspersions , and unrighteous suggestions of judge keeling ; expressed in his speech made the seventh of the seventh month at the sessions-house in the old-baily , being the day appointed for the tryal of some of the said people by the late act made to prevent and suppress seditious conventicles . wherein also is shewed that this law doth not concern them , they being no seditious sectaries , nor contrivers of insurrections , nor evil-doers ; therefore no just law is against them . he that justifieth the wicked , and he that condemneth the just , even they both are an abomination to the lord. prov. . . published by a lover of truth and righteousness , w. s. printed at london , in the year . to the judicial and impartial reader . ever since the devil ( that enemy of mankind , who is the leader of nature out of its course ) got rule in man's heart , his work and way hath been to stir up his instruments , first , to cast ignominious reproachful names upon the true worshippers of god , as new sects , turners of the world upside down , pestilent fellows , sowers of sedition , ring-leaders of sects , blasphemers , hereticks , seditious sectaries , contrivers of plots , and stirrers up of rebellion , &c. then when he hath by his emissaries cloathed them in this mantle of reproach , he can the easilier bring his designs to pass upon them ; whether it be to imprisoning in nasty infectious holes , or whipping , banishing , burning or hanging , which hath been his work through ages , among both false jews and false christians , as well as among those called heathen , to this day : for as once among the heathen , it was crime enough to cause the true christians to suffer , to have the name of a christian ( which was a name of reproach in that day ) and carried enough with it to be guilty of all crimes , in the judgment of the heathen , who believed all that was spoke and published against them , though they saw no proof : the like parallel is now ; we have the name quaker given us in reproach and derision , and its crime enough to cause us to suffer ( before and among some ) to have that name ; and what is spoke and published , surmised and evilly suggested of us , many believe without any manifest proof : but the wise and judicious will not receive and believe every report , nor give judgment of any person or people because of a name , speech , or report , though it be from the mouth of a judge , but will desire to know the truth ; therefore to inform such is this reply following published . and we may truly say for ourselves , as tertullian in his apollogie once said for the christians , when the heathen called their society , meetings or assemblies , factious ; did we ever ( saith he ) assemble to proclaim the hurt of any one ? as we are in the particular , so we are in the general ; that is to say , in whatsoever state we are found , we offend no body , we injure no body : and further , saith he , when any vertuous or godly people are associated , when any pious or chast persons assemble together ; their union should not be called a faction , but a lawful society . pag. . the innocency and conscienciousness of the quakers asserted and cleared from the evil surmises , false aspersions , and unrighteous suggestions of judge keiling ; expressed in his speech made the th of the th month , at the sessions-house in the old baily , &c. judge . because this day was appointed for the tryal of those people , and in as much as many are come hither expecting what will be done , i shall say something concerning them and their principles , that they might not be thought worthy of pity , as suffering more than they deserve : for they are a stubborn sect , and the king hath been very merciful with them . it was hoped that the purity of the church of england would ere this have convinced them , but they will not be reclaimed . answer . our conversation for these many years , hath been noted , and strictly observed by many , and hitherto we have not been found transgressors of any law which is made to preserve mens persons or estates , or for the punishment of evil-doers ; and so have not given the magistrates occasion justly to appoint days of tryal for us . for the law once in tables of stone , and all other just laws were and are added because of mans degeneration from the law and righteous principle of life , which was once , or at the beginning , placed in his heart : so when man fell from his obedience to this righteous law ( which we say was not in a book , nor in tables of stone , in the beginning , but in the heart ) and abounded in acts of cruelty , violence , oppression and idolatry , then because of these transgressions was that outward law added , in order to limit , bridle and punish , and also to bring mankind back again in a measure to that which he degenerated from , as moses witnesseth ( viz. ) to the word in the month and in the heart , that they might hear it and do it ( or obey it . ) and true christians are come to christ jesus , who is the power of god ; and are created anew in him unto good works , that they should walk in them ; and are made witnesses of that glorious promise fulfilled in them , ( viz. ) as to have the law written in their hearts , and the fear of the lord put into their inward parts ; which law and fear teacheth to depart from evil , and crucifieth that transgressing spirit within , from whence all manner of wickedness proceeds ; and against such there is ( or ought to be ) no law they being a law to themselves , as it is written , the law is not made for the righteous man ; but for the lawless and disobedient , for the ungodly and for sinners , for unholy and prophane , for murderers of fathers and murderers of mothers , for manslayers , for whoremongers and buggerers ( or abusers of themselves with mankind ) for man-stealers , for lyars , for perjured persons , and any other evils which are contrary to sound doctrin . and now seeing we are preserved by the power of the living god , ( whom we fear and serve ) from those and such-like evils ( which are the occasion of law and magistrates , otherwise there would be no need of either ) and yet notwithstanding are persecuted and thronged into nasty holes and prisons , and guarded with a great many club-men and bill-men , and haled before judgment-seats and rulers , as if we were great malefactors : this makes people slock together , and expect , and also wonder what will be the end of these things ; that people against whom no evil can be justly charged , should be the greatest sufferers in this generation : and pity and compassion will arise in thousands , who shall see or hear of our sufferings for innocency and conscience towards god , notwithstanding our cruel adversaries endeavour to cloath us in woolf-skins , to make people believe that we are the beasts of prey , and a stubborn sect , which will not be reclaimed by the mercy of the king , nor the purity of the church of england . as for the kings mercy it cannot save us , if we transgress against god , and make shipwrack of faith and a good conscience ; his righteous judgments will find us out , and we must give an account to him ; and walk so , as we may partake of his mercy ▪ which the king as well as the beggar hath and will have need of also ; howbeit we never yet forfeited our interest in the king's promises of liberty to tender consciences , so often renewed by him ; though it appears by this judge's so much inveighing against us , that he would fain make people believe we do not deserve our liberty or interest therein ; but that will not clear him nor them in the sight of god concerning those promises . and as for the purity of englands church it 's out of our sight , except it consists much in swearing , which the judge saith is a special part of god's worship : if this be purity , there 's too much of that among the members thereof ; but that will never reclaim us , for we can see a great deal of impurity , corruption and soul-sickness in it ; and as much the members of it confess themselves , that they are full of putrified sores , from the crown of the head to the soal of the feet ; and that there is no health nor soundness in them ; and that they do those things they should not do , and leave undone those things they should do ; and that they are miserable offenders , and sin in their best performances : indeed they speak enough of themselves to cause all wholsome , sound , understanding people to shun them and their church and worship , as men shun a contagious disease or infection ; and it is manifest that the nature and spirit of christianity is wanting among them , and that the spirit of cain ( that worshipper , who was the first murderer about religion ) rules among them : and what weapons have they ever used to reclaim us ( or call us ) back again to worship as they do ? have not their weapons been carnal , and the course they have taken force and violence , by stirring up the magistrates to make cruel laws against us ? which was never the true christians work nor way to bring people to believe their doctrine , and to worship as they did , but cains way ; and his wages will all persecutors about religion receive from the hand of the lord , as a just recompence of reward . judge . they teach dangerous principles ; this for one , that it is not lawful to take an oath . you must not think their leaders believe this doctrine themselves , only they perswade these poor ignorant souls so ; but they have an interest to carry on against the government , and therefore they will not swear subjection to it ; and their end is rebellion and blood. you may easily know that they do not believe themselves what they say , when they say it is not lawful to take an oath , if you look into the scriptures ; that text ( mat. . ) where our saviour saith , [ swear not at all ] will clear it self from such a meaning as for bids swearing , if you look but into the next words , where it is said , let your communication be yea , yea , and nay , nay ; and it is said , an oath is the end of all strife ; this for the new testament : and the old is positive for swearing . and they that deny swearing , deny god a special part of his worship . answer . our principles are truth , and according to the scriptures of truth ; but that great evil , to call light darkness , and darkness light ; good evil , and evil good , is befaln this generation ; and that which leads to unity and the preservation of mankind is now counted dangerous and destructive . swearing , or taking of oaths was not in the beginning , there was no need or occasion for it , strife was not begun ; but when man broke his unity with god , and ran into disobedience , then strife , and every evil work followed among men : then to limit this evil spirit which man followed into transgression , an outward law was added , and swearing and vowing under a curse came up ; and such as vowed were to perform their vows unto the lord ; and those that swore , were to swear by , or in the name of the lord , and not in or by the name of an idol , or any other creature ; and this was in the fall , while the wall of partition stood : now christ who is the restorer and the maker up of breaches , ( who was with the father before any of these things were ) in the fulness of time , in a body prepared , he appeared , to fulfill the law , and to put an end to sin , which was the occasion of the law ) and to finish transgression , and to bring in everlasting righteousness ; and to restore and bring man back again into the knowledge and unity of his maker , from whom he fell by disobedience : and these things which the father sent him to do , he finished and finisheth ; for all that received , believed , receivet and believe in him , and follow him in the regeneration . and while he was with his disciples , in that prepared body in which he came to do the will of the father , he gave forth many precepts and commands unto them , among which this is one , minding them how it was in old time ( viz. ) under moses law , how that they were to swear , and perform their vows to the lord ; but saith he ( who was before moses was ) i say unto you , swear not at all , neither by one thing or another ; but let your communication be yea , yea , nay , nay : for whatsoever is more than this cometh of evil . and moses law , and the old time saith also , an eye for an eye , and a tooth for a tooth , smiting for smiting , and that they should love their neighbour and hate their enemies ; but christ taught and teacheth his disciples a harder lessen , of bearing and forhearing , love , gentleness and heavenly-kindness , that they might be more like their heavenly father than moses's disciples were ; for saith he , if you love them that love you , and if you are friendly to your brethren only , what do you do more than sinners ? &c. so he that was before the law , leads to the end of the law , ( which is love ) and brings those that follow him , to be like-minded to him : as the christians in the primitive times were , who said , they had the mind of christ ; and did exhort one another to the same . and that this command of christ forbids all swearing , is not only clear from the end , and circumstance of the foregoing and following words , but also from the apostle james's exhortation ; who said above all things , my brethren , swear not , neither by heaven nor earth , nor any other oath , lest ye fall into condemnation . and it is also written , that if any say they love christ , and keep not his commandments , they are lyars . so who ever reads these scriptures ( mat. . jam. . . ) except the god of this world hath blinded the eye of their minds , may plainly perceive , that not only prophane swearing , but all manner of swearing among the disciples of christ ; who brings all that truly follow him , out of the strife which is among men , into love , peace and unity , which was before oaths , and where there is no need of any . and the swearing , strife and confusion , rebellion and blood-thirstiness is among the false christians , who have the name of christ in their mouths , but want his spirit and nature , being inwardly ravening wolves , and by their fruits are they known . and it is true which a bishop of englands church once said ; that among false christians oathes are not to be regarded ; and amongst true christians there was no need of them . our leader is christ , whose voice we hear and follow , and whose riches and wisdom we partake of . and the poor and ignorant souls are such as creep into houses ( ignorantly called churches ) and lead silly women captive , who are laden with sins , and led aside with divers lusts , ever learning , and never able to come to the knowledge of the truth : while we were in englands church , we our selves were such , as knew not the physician of our souls , and so were full of putrified sores , and unsoundness , and no health was in us ; and we did those things we should not do , and left undone those things we should do , &c. which is the states of englands church still as the members thereof confess in their common service : so , doth not divers lusts lead them ? and are they not ever learning , and ever ignorant ? and do not many thousands of them go down to the pit without the knowledge of that precious truth which makes free from sin ? let god's witness in the consciences of its members answer . our interest which we desire to cary on , is truth & righteousness ; and we shall rejoyce to see it established : though we are counted as the filth of the earth , and the off-scouring of all things , and not sit to live in this the land of our nativity , yet we have and do approve our selves friends to our nation ; and since the lord hath made us a people , we have sought and endeavoured its temporal and eternal good , and have not been found contriving nor acting evil against persons or governments , since we were brought to the knowledge of that truth we profess . therefore what ground of suspicion have we given to our cruel persecutors , that they should suggest and surmise so much evil of us , that our design is rebellion and blood ? but what cause or occasion did harmless abel give bloody cain to kill him ? consider and see the same is now . judg. now you shall see how this principle of not swearing tends to the subversion of the government . first , it denies the king the security he ought to have of his subjects for their allegiance ; which oath they deny ; and security by bond is not so good : for thereby they are not engaged in conscience , and they will only wait for a convenient season to forfeit their bonds without hazard , and make sure work in overthrowing the present government , and secure their own securities ; but an oath binds the conscience at all times , and that they cannot abide . again , this principle tends to subvert the government , because without swearing we can have no justice done , no law executed ; you may be robbed , your houses broke open , your goods taken away , and be injured in your persons , and no justice or recompence can be had , because the fact cannot be proved : the truth is , no government can stand without swearing ; and were these people to have a governmet among themselves , they cold not live without an oath . answ. if this judge had the mind of christ , he would not speak after this manner : for government was before swearing , and may be without it ; and oaths of alleagiance are but a novel thing to government , hatched and imposed in the apostacy , and was not among the true christians , whose yea was yea , and their nay nay in all things ; and the word and promise of a true christian , is security sufficient , and their consciences are bound to perform what they say and promise , as firm as they that swear . there hath been no want of swearing in these and other nations called christian , yet what subversions , turnings and overturnings , and treacherous dealing hath there been among the princes and people thereof ? and many have sworn to one governour and government , and then to another , and so to a third , and may be ready to swear to any that get to the helm of government ; and these swearers and conformers to any thing that is uppermost , make little conscience of oaths , so they may save themselves from suffering : and if we were or had been of this spirit , we need not have suffered so exceeding deeply in our persons and estates in the time of oliver , and the other powers : and it is envy which blindes the understanding of this judge , that makes him charge us , with not believing what we say , when we say , it is not lawful for us to take an oath ; and that we have a design to carry on , and therefore will not swear allegiance to the king. now if he did believe what he saith of us , that we should assert what we do not believe , or were so void of conscienciousness ; then how can he in reason expect that an imposed oath should be so much binding to us , if we could be forced to take it , especially since it is a maxime of their own , that forced oaths are not binding . and this judge and all such would do well to consider what weight their oath hath upon their consciences , whereby they are enjoyned to do equal law and execution arightly to all ; but how this is performed , set the wise in heart judge , when they go about with groundless suggestions and suspitions against an innocent people , to instigate both juries and country against them . we are such as desire the good of all that are in authority , that we may lead a quiet and peaceable life in all godliness and honesty under them ; and have never yet been found designers or contrivers of their destruction : therefore the greater is this judges evil , to endeavour to make us odious among the people ; and the unfiter he appears to be our judge , being full fraighted with enmity against us without cause : and a judge ought to be impartial , a man fearing god , and judging for him , and not for men ; such judges judgement will answer the righteous principle of god in all men , and such are a terror to the evil doers , and a praise to those that do well ; and the lord is with such in judgement . that which subverts , undermines and destroys governours , governments , and people , is cruelty , oppression , tyranny , sin and rebellion against the god of heaven , who hath power to give the kingdoms of this world to whom he pleaseth : and who so rules in righteousness , and answers the just and righteous principle of god in all men , needs not fear subversion or undermining ; 't is the evil doer that is filled with fear and terrour round about . we are not the obstructers of justice , nor the cause of it , our witness against any evil doer , shall be as true as any that take oaths ; and if false , our penalty the sawe with false swearers . and further , witnesses under moses's law , had no oath administred to them , though the crime bore witness of , reached life ; but if any bore false witness , the same punishment which should have been inflicted upon the person witnessed against , should be insticted upon the false witness and witnesses : which thing we desire may be done unto us : so then the fault is in the law , and the judges of it , which denies true and faithful evidence , ( which in conscience they can believe ) except it be under the ceremony of an oath . it is a shame for christians to have a jealousie of each others testimony , except they swear : it was enough in the first age of christianity , to confirm any testimony without an oath , to say [ christianus sum , ] or , i am a christian. and if no government could have been without taking of oaths , the author of all true government and rule , would not have said , swear not at all ; but swearing oaths and strife , is among men in the fall and degeneration ( and not among true christians ) where it will remain , till they know the restorer of all things take away the cause of it ; which is sin . judge . whereas they pretend in their scibbles , that this act against conventicles doth not concern them ; but such as under pretence of worshipping god , do at their meetings conspire against the government . this is a mistake ; for if they should conspire , they should then be guilty of treason , and we should try them by other laws ; but this act is against meetings to prevent them of such conspiracy ; for they meet to consult , to know their numbers , and to hold correspondency , that they may in a short time be up in arms. answ. our writings which he calls scribbles , are words of truth , and pretend no more than is true : for we are not the persons committing those crimes the act expresly provides against , except we , under pretence of tender consciences , do at our meetings contrive insurrection , as late experience hath shewed , and meet also under coulour and pretence of religious exercise , and so make this pretence of religion , a cloak to carry on and cover so me other design , which we never did ; ( for we meet indeed and in truth to wait upon god , and to worship him ; ) therefore this law concerns us not , if it be not strained beyond the expressed reason of it , in the preamble , by our cruel judges ; who may be compared to evening wolves , which are greedy to devour : and it is time enough to try us by this act , or any other law , when we do and commit the fact the law hath expresly provided against . we meet not to consult and to know our numbers , and to hold correspondencies , nor to be up in arms in a short time ; for so to do is conspiracy ; which he as good as confesseth and acknowledgeth that we are not guilty of ; for he saith if we were , he would try us by some other law. but these are evil suggestions , and wickedly imagined against us , in order to destroy us : this is unrighteous judgement , and god will plead our cause in the consciences of our adversaries . judg. i had the honour to serve the king at york , upon the tryal of those wicked plotters ; and we found that those plots was hatched and carried on in these meetings ; and we hanged up four or five of the speakers or praters ; whom we found to be chief leaders in that rebellion . answ. it is and hath been our portion and lot to be numbred among transgressors , by that envious spirit which seeks our ruine ; though we have been found no hatchers or carriers on of trecherous designs against any at our meetings : and he might as well have compared us to those members of englands church hanged monthly at tyburn . judg. i warrant you their leaders will keep themselves from the third offence , we shall not take them ; if we could catch their leaders , we should try them by some other law , which , if executed , will take away their lives . answ. we have no leader but christ jesus , who is the captain of our salvation , and he is our shepherd , and we hear his voice , and learn of him , and are the sheep of his pasture , and in our consciences we are bound and ingaged , because we love him and his paths of purity , to follow him , who leads our souls to rest . but for such which the judge means by leaders , who have been made instruments to turn our minds from darkness to light , and from the power of satan to god , they , together with us , are resolved to keep to the grace of god , ( the true teacher ) which teacheth to deny ungodliness and worldly lusts , and to live soberly , righteously and godly in this present world ; and by this grace ( which appears to all men ) are we taught and preserved from offending against any just laws once ; and so he may well warrant himself and others , that they will not offend three times : and his blemishing those he calls leaders , as if they put on others to suffer , and slee themselves , is altogether false ; for it is well-known in the nation , that many of them are in prison , where some of them have long remained for refusing to take the oath of allegiance ; upon which account divers of them are permunired , and many suffer for meeting : howbeit , if you should be suffered to take away some of their lives , which they can freely give up , if called to it ; yet know that the god whom we serve is unlimitted , and will open the mouths of thousands to bear witness against unrighteousness : so when you do take and catch more of them , you will have no evil to lay to their charge , nor nothing to accuse them for , but about matters appertaining to god's kingdom ; as conscience , faith , worship and religion ; which the civil magistrate ought not to intermeddle withall , it belonging to god alone , to whom all must give an account for such things : and people ought not to be imprisoned and persecuted , and their lives taken away about matters of religion ; for if a people have a false faith , and a misguided conscience , and are by reason of this faith and misguided conscience , exercised in a false worship and religion ; these people deserve the more to be pittied , informed and dealt lovingly and tenderly with , than to be persecuted , imprisoned , and destroyed , and so sent quick to hell : this is no christian love , nor the way to restore . judge . this is a merciful law ; it takes not away their estates , it leaves them intire ; only banisheth them for seven years , if they will not pay an hundred pounds : and this is not for worshipping of god according to their consciences , for that they may do in their own families ; but forsooth they cannot do that , but they must have thirty , forty , or an hundred others to contrive their designs withal . answer . as he began his speech in falshood and enmity , so it ends in the same : for if this be a merciful law , as those that are judges of it intend to execute it , then we may truly say as it is written , that the very mercies of the wicked are cruelty ; for some felons and murderers chuse rather to be hanged than to be transported , sold , and banished ; all which are threatned to be executed upon us , and for no other cause but for worshipping god in such manner and way as we are perswaded in our consciences , which are made truly tender ; and we dare not make shipwrack of faith and a good conscience , to save our persons and estates from the mouth of the devourer ; for it is a fearful thing to fall into the hands of the living god for disobedience ; and conscience is as a thousand witnesses , either to excuse or accuse ; but fearedness of conscience , as with an hot iron , and deadness and blindness of heart is befaln many in this generation : and from this state ariseth all such merciful laws as this the judge speaks of , in order to bring others ( who are tender and fearful to offend god ) into the same state they are in themselves ; but we are in conscience constrained ( if the god whom we serve so far permit ) to suffer the whore ( the false church ) to drink more of our blood , but of her cup of fornic●●ion wherewith she hath made the kings of the earth and nations drunk , we cannot drink ; and we are of the houshold of god , and of one family , and members of one body ; and though thirty , forty , or an hundred , or a thousand meet in one place or another together , for no evil design , why should we be banished for that ? if this be mercifulness , what is cruelty ? the heathenish romans shewed more mercy & manhood to paul , in allowing him to have a meeting in his own hired house , where he preached , and taught all that came unto him , without let or any limit as to number , two full years , though he was a prisoner . o that ever a people called christians should be found more inhumane than heathen , more merciless than bruit beasts , to banish fathers and mothers from their young and tender children , and children from their parents , and husbands from their wives ! and all this for no evil or wrong done to any mans person , estate or goverment , but onely for endeavouring to keep their consciences pure to god , and void of offence to him and all men . postscript . it is to be noted , that though the judge at the beginning of his speech said , that that day was appointed for their tryal , yet they were not tryed ; for one only , which he intended to begin withal , was brought from newgate to the bar , being but a boy and lately convinced of the evil of sin , and but as it were turning from it , into a conscientious fear and obedience to god : when he had ended his speech , he asked if he were not at the bull & mouth on such a day ? he said he was not . then the judge took occasion to vilifte and reproach the profession of the quakers , to the jury and people , and said , for all their pretentions to truth and plainness , could lie for their interest , & to avoid suffering : then asked him the same question again , and he answered as before ( for he was not there that day ) then saith he , we shall prove that you were there ; will you stand to your profession , said the judge ? yes , said the lad , and seal it with my blood. then were witnesses called in to prove that he was at the bull and mouth such a day , but none could appear : then the judge soon perceived that no witnesses would be found to serve his turn against this lad , nor the rest . then said he , there is a disappointment faln out , but threatned some should suffer for it to their cost , and so dismist the jury ; this disappointment being only want of witnesses to bring about the designed purpose of the court. they have ordered since , that some of the jaylors of newgate , together with the marshal and his men , shall be at our meetings , and be their witnesses against us at the next sessions : so our persecutors cruelty is further manifested in this , that they should ( jezebel - like ) hire , force , or command a company of hard-hearted men , who are daily exercised in cruelty , and who have not the true fear of god in their hearts , to be our only accusers : but the righteous god , which seeth the plots and designs of the wicked ( against the innocent and harmless ) will reward them according to their doings . the end . notes, typically marginal, from the original text notes for div a -e bishop gauden his book concerning publick oaths . the opinion of the judges upon the clause in the act of & car. ii. regis cap. . for giving no more costs than damages, delivered at serjeants-inn in chancery-lane, london, in trinity term. anno . ejusdem regis approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; 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(eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the opinion of the judges upon the clause in the act of & car. ii. regis cap. . for giving no more costs than damages, delivered at serjeants-inn in chancery-lane, london, in trinity term. anno . ejusdem regis hale, matthew, sir, - . sheet ([ ] p.) printed for william canning, at his shop adjoyning to the temple cloysters, london : . signed and dated at end: trinity term mdclxxi. matthew hale [and others] march . . this may be printed. r. wright. reproduction of the originals in the british library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- england -- early works to . law reform -- great britain -- early works to . - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - john pas sampled and proofread - john pas text and markup reviewed and edited - pfs batch review (qc) and xml conversion the opinion of the jvdges upon the clause in the act of & car. ii. regis cap. . for giving no more costs than damages , delivered at serjeants-inn in chancery-lane , london , in trinity term. anno . ejusdem regis . the clause in the act. and for prevention of trivial and vexatious suits in law , whereby many good subjects of this realm have been and are daily undone contrary to the intention of an act made in the year of queen eliz. for avoiding of infinite numbers of small and trivial suits commenced in the courts at westminster . be it farther enacted for making the said law effectual , that from and after the first of may aforesaid , in all actions of trespass , assault and battery and other personal actions wherein the iudge at the trial of the cause shall not find and certifie under his hand upon the back of the record , that an assault and battery was sufficiently proved by the plaintiff against the defendant , or that the freehold or title of the land mentioned in the plaintiffs declaration was chiefly in question , the plaintiff in such action , in case the iury shall find the damages to be under the value of forty shillings , shall not recover or obtain more costs of suit than the damages so found shall amount unto . and if any more costs in any such action shall be awarded , the iudgement shall be void , and the defendant is hereby acquitted of and from the same , and may have his action against the plaintiff for such vexatious suits , and recover his damages and costs of such his suit in any of the said courts of record . the jvdges opinion . i. that actions of debt , are not within this clause . ii. that no action upon the case sur assumpsit , account , or other personal actions ( other than for assault and battery or voluntary trespass , where the title comes not , nor cannot come in question ) is within this clause . iii. that the judge is bound to certifie on actions of assault and battery where the jury shall find damages to ten shillings or less , that the battery is sufficiently proved , otherwise the plaintiff is to have no more costs than damages . iv. that if the defendant pleads son assault demesne , and the jury find it ad dampnum querentis , the certificate must be , that the jury find by the defendants plea , that the battery is admitted and sufficiently proved . v. that if an assault be proved , and no battery , there needs no certificate . vi. that in case of a certificate , where it is requisite , it must be indorsed on the pannel or nomina jur ' with the judges hand to it immediately after the trial , and the certificate is to be , that the battery is fully proved . vii . that the clause extends onely , where damages are onely to be recovered , and not in debt , because debt is not within the words : ( although the debt be under forty shillings , it is all one , it needs no certificate . ) viii . that in all actions for a common , a way , a nusance , lights , water-courses , &c. the judges may certifie , because the freehold may come in question , although it be not mentioned in the declaration . ix . that the clause extends not to judgements by default , or writs of inquiry of damages . trinity term. mdclxxi . matthew hale . tho. twysden . ri. raynsford . will. moreton . io. vaughan . tho. tyrrill . io. archer . will. wylde . edw. turner . hugh wyndham . chr. turner . t. littleton . march . . this may be printed . r. wright . london , printed for william canning , at his shop adjoyning to the temple cloysters . . the laws and acts made in the fifth session of the first parliament of our most high and dread soveraign william, by the grace of god, king of scotland, england, france and ireland, defender of the faith holden and begun at edinburgh, may . by john marquess of tweeddale ... with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george, viscount of tarbat ... laws, etc. scotland. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) the laws and acts made in the fifth session of the first parliament of our most high and dread soveraign william, by the grace of god, king of scotland, england, france and ireland, defender of the faith holden and begun at edinburgh, may . by john marquess of tweeddale ... with the special advice and consent of the estates of parliament / collected and extracted from the registers and records of parliament, by george, viscount of tarbat ... laws, etc. scotland. cromarty, george mackenzie, earl of, - . tweeddale, john hay, marquess of, ?- . [ ], , [ ] p. printed by the heirs and successors of andrew anderson ..., edinburgh : . "cum privilegio." reproduction of original in the british library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- scotland. scotland -- history -- - . - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion the laws and acts made in the fifth session of the first parliament of our most high and dread soveraign william , by the grace of god , king of scotland , england , france and ireland , defender of the faith. holden and begun at edinbvrgh , may . . by john marquess of tweeddale , earl of gifford , viscount of walden , lord hay of yester , and lord high chancellor of this kingdom . his majesties high commissioner for holding the same , by vertue of a commission under his majesties great seal of this kingdom . with the special advice and consent of the estates of parliament . collected and extracted from the registers and records of parliament , by george viscount of tarbat , lord m cleod , and castlehaven , &c. clerk to his majesties councils , exchequer , registers and rolls , &c. edinbvrgh , printed by the heirs and successors of andrew anderson , printer to his most excellent majesty , anno domini . cvm privilegio . laws and acts made in the fifth session of the first parliament of our most high and dread soveraign william , by the grace of god , king of scotland , england , france , and ireland , defender of the faith. holden at edinbvrgh the day of may , . i. act for a solemn fast. may . . the estates of parliament , taking to their consideration , the great important war , wherein his majesty continueth to be necessarly engaged , for defence of the true reformed religion , the safety of this , and his other kingdoms , and the recovery and establishment of the rights , liberties and peace of the rest of christendom , so much at this time invaded and disturbed , with the continual hazards , to which his majesties sacred person is thereby exposed ; as likewise the dangers which do thence threaten this kingdom , and all that can be dear to his majesties good subjects therein , either as christians , or men , both by invasion from abroad , and the froward disaffection , and restless machinations of evil and unnatural countrey-men at home ; and how much it is the duty and interest of all good men , for these causes , and on this occasion , to implore the mercy , favour and blessing of almighty god , for preservation of his majesties royal person , and directing , assisting and prospering him in all his counsels and undertakings : and more especially , that god would countenance and assist him in the present war , give him success to his arms by sea and land , and defeat all the designs , counsels and practices of his secret and open enemies , both at home and abroad , for the preservation of the true protestant religion , securing the safety of these kingdoms , and the happy restoring the peace of europe . and the synod of lothian and tweeddale , now met at edinburgh , having made application to my lord commissioner for this end : therefore his majesty , with advice and consent of the said estates of parliament , doth hereby command and appoint , that the second thursday of iune next , being the thirteenth day of the said moneth , be set apart as a day of solemn fasting and humiliation , for making prayers and supplications to god , for the ends above-mentioned ; and that the said day be religiously and strictly observed by all persons within this kingdom : and ordains all ministers to read these presents publickly in their congregations a sunday at least before the said second thursday of iune next , appointed for keeping the said fast ; certifying such of the leidges who shal not give due obedience , or shal contemn or neglect the keeping and observing the said day and duties , that they shal be proceeded against by fyning , not exceeding one hundred pounds scots money , and warrands and commands the sheriffs , stewarts of stewartries , lords and baillies of regalities , and their deputs , justices of peace , magistrats of burghs within their several jurisdictions , to proceed against the persons guilty , and exact the fines accordingly , to be applyed , the one half to the judge , and the other half to the poor of the paroch ; and certifying such ministers as shal fail in their duty , in not reading this proclamation , and observing the duties therein prescribed , they shal be processed before the lords of his majesties privy council . and hereby requires all sheriffs , stewarts , lords and baillies of regalities , and their deputs justices of peace , magistrats of burghs , and their clerks , to make report to the lords of his majesties privy council , of these ministers who shal fail of their duty herein . and ordains these presents to be printed , and published at the mercat cross of edinburgh , and hail remanent mercat orosses of the head burghs of the several shires , and stewartries within this kingdom , that none may pretend ignorance : and that copies be dispatched in the usual manner , to the sheriffs and stewarts , baillies of regalities , or their deputs , and magistrats of burghs ; as likewise to all ministers , that they may seriously exhort all persons to a sincere and devout observance of the premisses . ii. act regulating citations before the parliament . may , . his majesty , with the advice and consent of the estates of parliament , finding it necessary that the order of summonding privat parties to appear before them be cleared and regulat , do therefore statute and ordain , that the manner of summonding privat parties , in actions raised either before , or during the sitting of the parliament , shal be for hereafter , and from the day and date hereof in this manner , viz. that in prosecution of protests for remeid of law , the party at whose instance summonds is to be granted , may give in his bill , containing the matter of his cause or complaint , signed by himself , or an advocat for him , which being subscribed by one of the six clerks of parliament , and presented before the sitting of the parliament , to any of the officers of state , or the time of the sitting of the parliament , to the lord chancellor , or president of the parliament for the time , or any of the said officers of state , the same may be by them past in course , and that as to all other causes that may be brought before the parliament , summonds and warrands for citation shal for hereafter only be granted by deliverance either of parliament in time of parliament , or of the lords of session upon a summar citation , to abide neither continuation or roll , in praesentia , in the recesses and intervalls of parliament , upon a bill containing subscribed and presented as above , and no otherwise : which warrands for citation being granted , summonds in his majesties name shal be thereon directed , to macers , if the party cited be within the town of edinburgh , for summonding the said party , if within the said town of edinburgh , on fourty eight hours , and if elsewhere within the kingdom , ( excepting orkney and zetland ) upon fifteen days warning , or if in orkney or zetland , upon fourty days personally , or at his dwelling house ; or if without the kingdom , upon sixty days warning , at the mercat cross of edinburgh and peer and shoar of leith , to compear before his majesty , and the said estates of parliament , where and when the parliament shal be appointed to meet , or shal be met for the time , with continuation of days , and with certification . and also , for summonding of witnesses , as is usual before the lords of council and session , which summonds to be expede by deliverance , as said is , shal pass under the signet of the session ; and the party at whose instance the same is raised , shal pay to the clerk of parliament or session aforesaid , for writing and subscribing of the bill and letters , the sum of twelve pound scots and no more , on any pretence whatsoever , and for affixing the signet the sum of three pounds scots and no more : declaring that if any adjournment of parliament one or more shal happen to interveen , betwixt the giving of citations , in manner foresaid , and the day of compearance , the foresaid summonds shal nevertheless still stand in force , for obliging the parties and witnesses summoned to compear at the day to which the parliament shal be adjourned , and when ever the same shal first meet . and furder , it is hereby declared , that at the said day of compearance before the parliament , being so met , or any other lawful day thereafter , it shal be leasome to the clerks of parliament , at the desire of the party pursuer , to call the foresaid summonds , after the opening of the house , and before the sitting down of the parliament , at the patent gate of the parliament-house , and if the party summoned compear , to mark the same , that the summonds with the executions , and the other peices produced by the pursuer may be given out to see and answer , to the effect the same may be seen and returned , within six days in the common form , and so the cause or complaint may be ready prepared for the parliament , to proceed therein , when the same shal be again called in their presence : providing always , that no decreets be given out in absence , but upon special application to , and sentence pronounced by the parliament , and no otherwise . and excepting always from this act , all summonds of treason , and for other publick crimes , and executions , and processes thereupon , which are to proceed as formerly . and lastly , providing that the foresaid citations to be made by deliverance of the lords of session , shal found no exception of prejudiciality against any party , in any action , may be raised , until the foresaid citation be called before , and sustained by the parliament . iii. act adjourning the summer-session till the first of july . may . . our soveraign lord considering that the sitting of the parliament , begun the ninth of may instant , may continue for the month of iune next , whereby the leidges cannot attend the summer session in its ordinar time ; do therefore ; with advice and consent of the estates of parliament , adjourn the session , ( which should be in course the first of june next ) to the first of iuly next , continowing all actions and causes depending before the lords of session to the said first of july : and his majesty dispenses in the mean time , with the sitting of all inferior courts , as if the session had not been adjourned , and notwithstanding of the sitting of the parliament : and further declares , that the time and space to run , betwixt the said first of iune and the first of iuly , shall not be reckoned in any short prescription . and ordains these presents to be published at the mercat-cross of edinburgh , and to be forthwith printed , that the leidges may be thereby certified thereof . iv. act anent the iustice court. iune , . our soveraign lord , for the better regulating of the justice court , and facilitating and more sure ordering of the form and method of process therein used : do therefore , with advice and consent of the estates of parliament , statute and ordain , that in all time coming , the use and custom hitherto observed in that court of advocats or procurators their dictating , and the clerks writing of the defences , duplies , triplies , quadruplies and so forth for the defender and pursuer be discharged and laid aside , and that in place thereof , his majesties advocat or other advocats or procurators for the pursuer , with the advocats or procurators for the defender or pannel debate the relevancy viva voce , and that after the said dispute viva voce is ended , then time be allowed by the lords and judges of the said court , to the effect after-mentioned , and that the kings advocat , or advocats , or procurators for the pursuer , do within the space of fourty eight hours , give in to the clerk his information in writing subscribed with his hand , that the advocats or procurators for the pannel may take it up , and give in their answers in writing also under their hands , within other fourty eight hours , which information and answers , shall be by the clerk recorded in the books of adjournal , in place of the foresaid written dispute formerly in use , and then at the advising the said information and answers , shall be first read in open court , and if any thing be found new on either side , and not noticed by the other party , the parties or judges shall point the same to the other party concerned , and hear both parties thereon viva voce , the clerk minuting in presence of , and at sight of the said judges what is so further debated , and then the said judges shal proceed to the advising . and his majesty with advice and consent foresaid , ratifies , approves , and confirms the whole rights , powers and priviledges of the said court of justice , and of the lord justice general , lord justice clerk and other judges , and all other members thereof . and it is further hereby statute and ordained , that in all capital crimes wherein inferior criminal courts were hitherto restricted , to try and execute within three suns , this time shall be hereafter restricted to the tryal and sentence only , but not to the time of execution , which is hereby left to the discretion of the judge , not exceeding nine days after sentence . v. act anent principals and cautioners . iune . . his majesty and the estates of parliament , considering the great hurt and prejudice , that hath befallen many persons and families , and oft times to their utter ruine and undoing , by mens facility to engage as cautioners for others , who afterwards failing , have left a growing burden on their cautioners without relief : therefore , and for remeid thereof , his majesty with advice foresaid , statutes and ordains , that no man binding and engaging for hereafter , for and with another conjunctly and severally , in any bond or contracts for sums of money , shall be bound for the said sums for longer than seven years after the date of the bond , but that from and after the said seven years , the said cautioner shall be eo ipso free of his caution ; and that whoever is bound for another , either as express cautioner , or as principal , or co-principal , shall be understood to be a cautioner , to have the benefit of this act ; providing , that he have either clause of relief in the bond , or a bond of relief apart , intimat personally to the creditor at his receiving of the bond , without prejudice always to the true principals , being bound in the whole contents of the bond or contract ; as also , of the said cautioners being still bound , conform to the terms of the bond within the said seven years , as before the making of this act ; as also providing that what legal diligence by inhibition , horning , arrestment , adjudication , or any other way , shall be done within the seven years by creditors against their cautioners , for what fell due in that time , shall stand good , and have its course and effect after the expyring of the seven years , as if this act had not been made . vi. act regulating the sale and payment of bankrupts estates . iune , . his majesty with advice and consent of the estates of parliament , for the further clearing and explaining of former laws , anent the sale of bankrupts estates , statutes , enacts , and declares , that it shall be lawful to all purchasers of bankrupts estates , after the space of one year , counting from the decreet of sale , and to such as have obtained decreets of sale , after the term of whitsunday one thousand six hundred and ninety six years , to consign the whole price offered , with the annualrent due at the time of the consignation , or so much thereof , as remains in the hands of the purchaser , over and above what is warrantably payed to creditors preferred by the lords of session , in the hands of the magistrats and town council of edinburgh , and their thesaurer for the time , who are hereby obliged and ordained to receive the same , upon their receipt in the terms after-mentioned : and for the greater benefit of the creditors , are further allowed to keep in their hands the consigned money , for the space of a year from the next term of candlesmass , whitsunday , lambmass , or martinmass after the consignation , upon payment of three per cent of annualrent , ay and while it be called for : and the said magistrats , town council , and thesaurer of edinburgh for the time , shall be , and are hereby obliged to make forthcoming , the consigned money in whole , or in part , with the annualrent thereof , at three per cent as said is , according as they shal be ordered by the saids lords of session , with certification if they failzie , that they shall be charged with horning for that effect , and shall be thereafter lyable , not only in the tenth part of the principal sum , called for in name of penalty ; but also in the ordinary annualrent of the said principal , ay and while the compleat payment thereof . and because purchasers of lands affected with liferents , have retention of a share of the price : it is hereby declared , that the purchaser shall be allowed to consign what remains in his hands , after the decease of the liferenter in manner foresaid ; he always , making due intimation of the consignation to the creditors who got the rest of the price . and his majesty with consent foresaid , statutes , enacts , and declares , that the purchaser paying the price offered to the creditors , according as they are or shall be ranked and preferred by the lords of session , or consigning the same in manner foresaid , shall be for ever exonered , and the security given for the price , shall be delivered up to be cancelled , and the lands and others purchased and acquired , disburdened of all debts or deeds of the bankrupt or his predecessors , from whom he had right , and that the bankrupt , his heirs , or appearand heirs , or creditors without exception of minority , not compeating or conceiving themselves to be prejudged , shall only have access to pursue the receivers of the price and their heirs , and reserving to the minor leased his relief as accords : and further , his majesty with advice and consent foresaid , doeth hereby authorise the lords of session , to grant warrant for charging the magistrats and thesaurer of edinburgh for the time , to make payment of the sums consigned to the several creditors according to their preferences , upon the saids creditors their several applications to the lords , and consigning in the clerks hands , dispositions and conveyances in favours of the purchasers , in so far as their several rights may affect the purchase ; as also , in case any debate remain undetermined amongst the creditors anent their preferences , it shall be lawful to the saids lords , upon application of the saids creditors , to grant warrand for uplifting and employing the sums consigned , upon sufficient security bearing annualrent . vii . act for six months supply upon the land-rent . iune . . the estates of parliament taking into their consideration , the dangers that still threaten this kingdom , by reason of the continuance of the present war , which visibly require the keeping up of the standing forces , and the supplies necessary for their maintainance ; do therefore humbly and cheerfully for themselves , and in name of this kingdom whom they represent , make offer to his majesty of a supply of four hundred thirty two thousand pound , extending to six months cess ; which new supply , is to be raised and uplifted out of the land-rent of this kingdom in the same manner , and conform to the proportions of the shires and burghs contained in the sixth act of the second session of this current parliament , dated the seventh day of iune , providing always that the proportions of burghs , be rated and payed as their tax-roll now is , or that be settled by themselves ; and this supply to be payed in two parts , either answering to three months cess , viz. two hundred and sixteen thousand pounds as being the first half thereof , to be payed betwixt and the first day of august , in this present year one thousand six hundred and ninety five : and the other two hundred and sixteen thousand pound , as the other half thereof , betwixt and the first of february , one thousand six hundred ninety six years . and his majesty considering , that this supply is granted for such a necessary use , doth with advice and consent of the estates of parliament , declare , that no person or persons shall be exempted from payment of their proportions of this supply for their lands , upon any pretext whatsoever ( excepting mortified lands , and the lands of new-milns , belonging to the woolenmanufactory there , for which mortified lands , and lands of new-milns , deduction is to be allowed in the quota of the respective shires ) notwithstanding of any former law , priviledge , or act of parliament in the contrary . and his majesty with advice and consent foresaid , doth nominat and appoint the same persons , who are named in the foresaid act of parliament , who are alive , and have qualified themselves according to law , or shall qualifie themselves betwixt and the last tuesday of iuly next to come , and such others as have been since nominat by the privy council , to be commissioners for ordering and uplifting this supply ; with the same power to them , to choice their own clerk , and to do every thing that may concern the said supply , as is prescribed and appointed by the said act , holding the same as repeated herein , and ordains the same execution to pass for in-bringing thereof , as is provided by that act in all points . and ordains the first meeting of the said commissioners for the shires , to be at the head burghs thereof upon the third tuesday of iuly next , at ten of the clock , for the shires on this side of the river of tay : and the last tuesday of iuly next , for the shires benorth tay. and requires the sheriffs and stewarts , or their deputs , to intimat the same to the commissioners of the respective shires and stewartries , with power to them to appoint their subsequent dyets of meeting and their conveener from time to time : and also to appoint collectors with sufficient caution , as they shall think fit . and commits to his majesties privy council , upon the death or not acceptance of any of the commissioners of supply , appointed by this act , to nominat and appoint others in their places . and his majesty with advice and consent foresaid , does declare , that all clauses contained in the former acts of parliament , and convention of estates , in relation to the inbringing of the cess , and quartering , and anent ryding mony , shall stand in full force as to this supply now imposed , in the same manner as if they were insert herein ; except in so far , as these acts of parliament or convention , are innovat or altered by the foresaid sixth act of the second session of this current parliament . and it is hereby declared , that no persons lyable in payment of this supply , shall be holden to produce their discharges or receipts of the same , after three years from the respective terms of payment , unless diligence be done by denunciation before elapsing of the said three years . and because by the supply hereby granted , the land-rent and burghs of this kingdom are only burdened ; and it being just that the personal estates in money , should bear some proportion of the burden : therefore , his majesty with advice and consent foresaid , statutes and ordains , that every debitor owing money within the kingdom at six per cent of interest , shall in the payment of his annualrents for one year , have retention in his own hands of one of six of the said annualrents , and this retention to be for the whole year , viz. from whitsunday one thousand six hundred and ninety five , to whitsunday one thousand six hundred and ninety six years . and it is hereby declared , that it shall be usury for any creditor , not to grant the said retention . follows the quota of supply , payable monthly by the several shires of the kingdom . the sheriffdom of edinburgh , the sum of three thousand one hundred and eighty three pounds , eight shillings scots money monthly . the sheriffdom of haddington , the sum of two thousand seven hundred and eighty two pounds , six shillings . the sheriffdom of berwick , the sum of two thousand eight hundred and thirteen pounds , one shilling . the sheriffdom of roxburgh , the sum of three thousand six hundred and eighty six pounds , seventeen shillings , six pennies . the sheriffdom of selkirk , the sum of nine hundred and four pounds , nine shillings . the sheriffdom of peebles , the sum of one thousand and fourty two pounds , eight shillings . the sheriffdom of lanerk , the sum of three thousand and ninety one pounds , twelve shillings . the sheriffdom of dumfreis , the sum of two thousand seven hundred and twelve pounds , seventeen shillings . the sheriffdom of wigton , the sum of one thousand and four pounds , fifteen shillings . the stewartry of kirkcudbright , the sum of one thousand six hundred and seventy four pounds , eleven shillings . the sheriffdom of air , the sum of three thousand eight hundred and seventy pounds , five shillings . the sheriffdom of dumbarton , the sum of seven hundred and sixty four pounds , ten shillings . the sheriffdom of bute , the sum of three hundred and eight pounds , eight shillings , and eight pennies . the sheriffdom of renfrew , the sum of one thousand three hundred and fifty three pounds , seven shillings . the sheriffdom of striviling , the sum of one thousand seven hundred and fifty four pounds , four shillings , and six pennies . the sheriffdom of linlithgow , the sum of one thousand one hundred and sixty nine pounds , eighteen shillings . the sheriffdom of perth , the sum of five thousand and thirty eight pounds , fourteen shillings . the sheriffdom of kincardine , the sum of nine hundred and eighty four pounds , one shilling . the sheriffdom of aberdeen , the sum of four thousand and seventy seven pounds , nineteen shillings . the sheriffdom of inverness , the sum of one thousand two hundred and thirteen pounds , one shilling , and six pennies . the sheriffdom of ross , the sum of one thousand one hundred and thirty one pounds , six shillings . the sheriffdom of nairn , the sum of two hundred and seventy seven pounds , sixteen shillings . the sheriffdom of cromarty , the sum of two hundred and fourteen pounds . the sheriffdom of argyle , the sum of one thousand nine hundred and fourty seven pounds , ten shillings , and nine pennies . the sheriffdom of fife and kinross , the sum of five thousand one hundred and seventy two pounds . the sheriffdom of forfar , the sum of three thousand two hundred and seventy three pounds , fifteen shillings . the sheriffdom of bamff , the sum of one thousand one hundred and fifty pounds , four shillings . the sheriffdom of sutherland , the sum of three hundred and thirty six pounds . the sheriffdom of caithness the sum of five hundred & ninety nine pounds , five shillings . the sheriffdom of elgin , the sum of one thousand and fifty nine pounds , five shillings . the sheriffdom of orkney and zetland , the sum of one thousand and eighty eight pounds , ten shillings . and the shiriffdom of clackmannan , the sum of three hundred and fifty two pounds , seven shillings and three pennies scots money . follows the quota of supply , payable monthly by the several burghs of the kingdom . the city of edinburgh , the sum of three thousand eight hundred and eighty pounds scots monthly . the burgh of perth , the sum of three hundred and sixty pounds . the burgh of dundee , the sum of five hundred and sixty pounds . the city of aberdeen , the sum of seven hundred and twenty six pounds . the burgh of stirling , the sum of one hundred and seventy two pounds . the burgh of linlithgow , the sum of one hundred and fifty six pounds . the city of st. andrews , the sum of seventy two pounds . the city of glasgow , the sum of one thousand and eight hundred pounds . the burgh of air , the sum of one hundred and twenty eight pounds . the burgh of haddington , the sum of one hundred and ninety two pounds . the burgh of dysart , the sum of thirty pounds . the burgh of kirkaldy , the sum of two hundred and eighty eight pounds . the burgh of montrose , two hundred and fourty pounds . the burgh of couper , one hundred and eight pounds . the burgh of anstruther-easter , eighteen pounds . the burgh of dumfreis , the sum of two hundred and thirty pounds . the burgh of inverness , the sum of one hundred and eighty pounds . the burgh of burnt-island , the sum of seventy two pounds . the burgh of innerkeithing , the sum of thirty pounds . the burgh of kinghorn , the sum of fourty two pounds . the burgh of breichin , the sum of fifty four pounds . the burgh of irwine , the sum of sixty pounds . the burgh of jedburgh , the sum of one hundred and two pounds . the burgh of kirkcudbright , the sum of thirty six pounds . the burgh of wigton , the sum of thirty six pounds . the burgh of dumfermling , the sum of ninety pounds . the burgh of pittenweem , the sum of thirty pounds . the burgh of selkirk , the sum of seventy two pounds . the burgh of dumbarton , the sum of thirty pounds . the burgh of renfrew , the sum of thirty six pounds . the burgh of dumbar , the sum of sixty pounds . the burgh of lanerk , the sum of sixty pounds . the burgh of aberbrothock , the sum of fifty four pounds . the burgh of elgin , the sum of one hundred and thirty eight pounds . the burgh of peebles , the sum of sixty six pounds . the burgh of crayl , the sum of thirty six pounds . the burgh of tain , the sum of thirty pounds . the burgh of culross , the sum of twenty four pounds . the burgh of bamff , the sum of fourty two pounds . the burgh of whythorn , the sum of eight pounds . the burgh of forfar , the sum of twenty four pounds . the burgh of rothsay , the sum of thirty pounds the burgh of nairn , the sum of nine pounds . the burgh of forres , the sum of twenty four pounds . the burgh of rutherglen , the sum of twelve pounds . the burgh of north-berwick , the sum of six pounds . the burgh of anstruther-wester , the sum of six pounds . the burgh of cullen , the sum of eight pounds . the burgh of lauder , the sum of thirty pounds . the burgh of kintore , the sum of nine pounds . the burgh of annand , the sum of twelve pounds . the burgh of lochmabban , the sum of eighteen pounds . the burgh of sanquhar , the sum of six pounds . the burgh of new galloway , the sum of six pounds . the burgh of kilrenny , the sum of eight pounds . the burgh of fortrose , the sum of eighteen pounds . the burgh of dingwal , the sum of eight pounds . the burgh of dornoch , the sum of eighteen pounds . the burgh of queens-ferry , the sum of fifty four pounds . the burgh of inveraray , the sum of twenty four pounds . the burgh of inverury , the sum of twelve pounds . the burgh of week , the sum of twenty pounds . the burgh of kirkwal , the sum of seventy two pounds . the burgh of inverbervy , the sum of six pounds . the burgh of stranraer , the sum of twelve pounds . mr. john buchan agent for the burrows to make up the quota for the burrows one thousand two hundred pounds scots . follows the commissioners of supply , ordered by the parliament to be given in by the noblemen and commissioners from the several shires ; in place of those dead , or not qualified , since the year . for the shire of edinburgh . the lord ross , sir john gibson , dalmenie , sir robert dickson of sornebeg , sir george hamilton of barnton , carlops , rickarton-craig , james murray of poltoun , mr. james dalrymple of killoch , baillie alexander calderwood in dalkeith , sir james stewart his majesties advocat , sir william baird of newbyth , baillie john nairn in dalkeith . for the shire of haddingtoun . the earl of roxburgh , lord alexander hay , mr. alexander hume of crichne● , william purvis younger of ewfoord , james moor of bourhouses , john hay of athirstoun , john hay of east-hope , james rew of chesters , mr. hugh dalrymple of north-berwick , sir john clerk of pennycook , james hume of gamilshiels , david maitland of soutrac , william skirvine of plewlandhill , thomas hamilton of olive-slob , hoptouns chamberlain , patrick cockburn of clerkingtoun younger , wauchope of stotincleugh , james m cmorlan of the earl of haddingtouns chamberlain . for the shire of roxburgh . the earl of roxburgh , the laird of riddel younger , the laird of mangertoun , the laird of boon-jedburgh , the laird of timpenden , john scot of weems , william turnbull of langraw , walter cairncross of hilslop , james lithgow of drygrains younger , robert davidson of hownam , andrew young of oxnam-side , robert davidson of marchcleugh , mr. archibald douglas brother to cavers , gideon eliot of northsymptoun , william scot of burnhead . for the shire of selkirk . the earl of roxburgh , francis scot of balzielie , william eliot of borthwick-brae , george curror of hartwood-burn , william ogilvy of hartwood-myres , the laird of gala younger , the eldest baillie of selkirk for the time , mr. john murray sheriff deput of selkirk . for the shire of peebles . adam murray of cardon , alexander monteith of chappel-hill , alexander veitch younger of glen , william burnet of barns , john law of netherurd . for the shire of lanerk . the earl of wigtoun , the earl of selkirk , james master of carmichael the laird of lee , sir william hamilton of whitelaw , one of the senators of the colledge of justice , sir william stewart of castle-milk , john baillie of welstoun , john somervel of gladstones , allan lockart younger of cleghorn , gawin hamilton of raploch , the laird of blackwood younger , the laird of ferm younger , the laird of shiel-hill , william somervel of corehouse , mr. archibald hamilton of dalserff , the laird of munkland , the laird of boigs , john hamilton of udstoun , james anderson of stobcorss , the laird of cultness younger , john wardrop of drummarnock , the laird of mauldsly , the laird of braidisholm . for the shire of wigtoun . james earl of galloway , william stewart younger of castle-●ewart , patrick m cdowal of culgrot , john dalrymple son to the master of stairs . for the shire of air. the earl of lowdoun , the lord kennedy , the lord bargeny , mr. william cochran of kilmaronock , the laird of langshaw younger , the laird of dunlap , the laird of ralstoun , sir archibald muir of thorntown , james crawfurd of newark , thomas boyd of pitcoun , the laird of crawfurdland younger , mr. alexander crawfurd of fergusnil , john crawfurd younger thereof , james cochran of mayns-hill , neivin of munkriding , william cunninghame of ashinyards , john dalrymple son to the master of stairs , sir iohn cochran of ochiltrie , iohn cochran of waterside , faucher of gilmils-croft , william baillie of munktoun , iames campbel of iurebank , the lairds of logan elder and younger , hugh crawfurd of drumdow , hugh dowglass of garallan , adam aird of catharin , iames m cadam of waterhead , the laird of dunduff , kennedy younger of drumellan , iames riddoch of midtown baillie of cumnock , mr. william crawfurd of dalragills , david boswal of brae-head , david kennedy of kirkmichael , mr. iohn schaw of drumgrains , hugh kennedy of bennan . for the shire of renfrew . porterfield of duchil , iames hamilton of aikenhead , gawin ralstoun of that ilk , ludovick houstoun of iohnstoun younger , hall of fulbarr maxwells of southbarr elder and younger . for the shire of stirling . the lord forrester , the lord cardross , the laird of bedlormie , iohn ross of nuick , archibald buntin of balglass , george buchannan of ballachrum , thomas buchannan of roquhan , iohn buchanan of cralgyvairn , walter buchannan of balfunning , iohn m clauchlan of auchintroig , duncan buchannan of harperstoun , iohn forrest of pardiven , david forrester of denovane , iohn cuthil of stonniewood , iames rankin of balhumilzear , thomas crawfurd of manuel-miln , iohn campbel younger of douan , robert forrest of bankhead , mr. iohn areskin present governour of the castle of stirling , robert hay of candy , archbald naper of bankell . for the shire of linlithgow . the earl of annandale , the lord cardross , lord iohn hamilton , lieutenant collonel iohn areskin , iohn dalrymple son to the master of stairs , iames dowglass of pompherstoun , david dundass of philipstoun , patrick dickson of westbinnie , iames hamilton of badderston , iames carmichael of pottieshaw , the laird of duntarvie , the laird of barbachlay , the laird of wrae , the laird of duddingstoun younger , patrick dundass of breastmiln . for the shire of kincardine . john arbuthnet of fordown , george allardice of that ilk , mr. james keith of auchorsk sheriff-deput of kincardine , william forbes younger of moniemusk , alexander ross of tullisnaucht , david melvil of pitgarvie , william strauchan of strath . for the shire of aberdeen . mr. patrick ogilvie of cairnbulg , william frazer of broadland , the laird of innercald , mr. james scougal , mr. robert forbes of birsmore , the eldest baillie of frazersburgh for the time being , the laird of mouny , john forbes of tulliegrig , alexander leslie of little-wartle , mr. alexander frazer of powis , john forbes of innerdraen , alexander keith of kidshill , william hay of earnhill . for the shire of inverness . james grant of gallowie , patrick grant of rothiemurchus , robert grant of garthinmore , patrick grant of raick , james grant of tulloch , william grant of dalliechappel . for the shire of cromartie . hugh rose of kilravock , john urquhart of craighouse , alexander mackenzie of bellon , aeneas mackleod of catboll , mr. roderick mackenzie in tarrel , kenneth mackenzie of culbo , adam gordon of dalfollic , roderick mackenzie of navitie . for the shire of argile . james campbel younger of ardkinglass , patrick campbel of duntroon , colin campbel chamberlain to the earl of argile , dougal campbel younger of kilberrick , neil macneil fiar of teynish , robert campbel fiar of carrick , archibald campbel of clunes baillie of yla , ronald campbel of laggan-lochan , george campbel of dall , archibald campbel of shindarlin , donald campbel of glencaradel , john campbel baillie of jura , archibald campbel of craigage , angus campbel younger of skipnedge . for the shire of fife . the lord yester , the master of yester , the laird of lundie , sir alexander bruce of broomhall , mr. alexander anstruther of newark , the laird of durie , mr. john prestoun of drumraw , thomas beaton of tarvit , the laird of murdocairnie , macgill younger of rankeillor , the laird of kirkness , the laird of dowhill , mr. robert beaton of craigfoodie younger , the laird of bannochy younger , the laird of dinboig , mr. david scrimzeour of kirkmore , john dempster younger of pitliver , weems of bogie younger , the laird of bandone , john melvil of carskirdo , the laird of balcanquel younger , mr. john mitchel of balbairdie , lundie of baldastard , george moncreiff of sauchope , john hay of naughtoun younger , walter boswell of balbertoun , alexander swinton of strathore , james maxwel of achibank , james clelland of piddennis . for the shire of forfar . the laird of loggie younger , the laird of strickathro , the laird of smiddiehill younger , the laird of rossie younger , mr. james lyel of balhall . for the stewartry of kirkcudbright . james earl of galloway , lord bazile hamilton , patrick horron of kirrachtrie , john mackie of palgown , alexander mackie younger of palgown , mackulloch of bareholm , william muir tutor of cassincarrie , william gordon of schirmoirs , robert gordon of garerie , james gordon of largmoir , robert gordon of airds , william maxwel younger of newlands , robert macklellan of barmagaleim , charles macklellan of collin , andrew corsan of balmagan , grier of dalscerth . for the shire of sutherland . george monro of culrain , aeneas mackleod of catboll , david ross of innerchasly , and david sutherland younger of kinnald . for the shire of caithness . alexander sinclair of braibster , mr. john campbel commissar of caithness , james murray of clairdon , mr. william caldell of galshfield , daniel budge of tostingall , william sutherland of geese , john sinclair of forss , donald williamson of banaskirk , patrick murray of pennyland , george sinclair of barroch , david sinclair of freswick . for the shire of elgin . ludovick dumbar of grainge , joseph brody of milntown , the laird of innes younger , alexander brody of duncairn , robert cumming of relugus . for the shire of ross. the laird of gairloch , john mackenzie of cowle younger , colin mackenzie uncle to the laird of gairloch , mr. simon mackenzie of allans , george monro of lamelair younger , colin robertson of kindeis , lauchlan mackenzie of assin younger , david monro tutor of fyress , robert monro of auchnagart , hector monro of daan younger , aeneas macleod of catboll , william ross of easterfearn , mr. charles mackenzie of loggy , mr. alexander mackenzie of dachmaluick younger , mr. alexander ross of pitkearie , abraham lesly of findrossie , mr. george mackenzie of bellamuckie , roderick macleod of cambuscutrie , ronnald bayn of knockbayn , john bayn younger of tulloch , mr. colin mackenzie of muir , alexander forrester of cullinald younger . viii . act for a company tradeing to affrica and the indies . june . . our soveraign lord taking into his consideration , that by an act past in this present parliament , intituled act for encouraging of forraign trade ; his majesty for the improvement thereof , did with advice and consent of the estates of parliament , statute and declare , that merchants more or fewer may contract and enter into such societies and companies , for carrying on of trade , as to any subject of goods or merchandise to whatsomever kingdoms , countries , or parts of the world , not being in war with his majesty , where trade is in use to be , or may be followed , and particularly , beside the kingdoms and countreys of europe , to the east and west - indies , the streights , and to trade in the mediterranian , or upon the coast of affrica , or in the northern parts , or elsewhere as above : which societies and companies being contracted and entered into , upon the terms and in the usual manner , as such companies are set up , and in use in other parts consistant always with the laws of this kingdom : his majesty with consent foresaid , did allow and approve , giving and granting to them and each of them all powers , rights and priviledges , as to their persons ; rules and orders , that by the laws are given to companies allowed to be erected for manufactories ; and his majesty for their greater encouragement , did promise to give to these companies , and each of them his letters patent under the great seal , confirming to them the whole foresaid powers and priviledges , with what other encouragement his majesty should judge needful , as the foresaid act of parliament at more length bears . and his majesty understanding that several persons as well forraigners as natives of this kingdom , are willing to engage themselves with great sums of money in an american , affrican , and indian trade to be exercised in and from this kingdom ; if inabled and incouraged thereunto by the concessions , powers and priviledges needful and usual in such cases . therefore , and in pursuance of the foresaid act of parliament , his majesty with advice and consent of the saids estates of parliament , doth hereby make and constitute iohn lord belhaven , adam cockburn of ormistoun , lord justice clerk , mr. francis montgomery of giffen , sir iohn maxwell of pollock , sir robert chiesly present provest of edinburgh , iohn swintoun of that ilk , george clark late baillie of edinburgh , mr. robert blakewood , and iames balfour merchants in edinburgh , and iohn corss merchant in glasgow , william paterson esquire , iames fowlis , david nairn esquires , thomas deans esquire , iames cheisly , iohn smith . thomas coutes , hugh frazer , ioseph cohaine , daves ovedo , and walter stuart merchants in london , with such others as shal joyn with them within the space of twelve moneths after the first day of august next , and all others , whom the foresaid persons and these joyned with them , or major part of them being assembled , shal admit and joyn into their joint-stock and trade , who shal all be repute , as if herein originally insert to be one body incorporate , and a free incorporation , with perpetual succession , by the name of the company of scotland trading to affrica , and the indies : providing always , likeas , it is hereby in the first place provided , that of the fond or capital stock that shall be agreed to , be advanced and imployed by the foresaid undertakers , and their co-partners ; the half at least shal be appointed and allotted for scottish men within this kingdom , who shal enter and subscribe to the said company , before the first day of august , one thousand six hundred and ninety six years : and if it shall happen , that scots men living within this kingdom , shal not betwixt and the foresaid term , subscribe for , and make up the equal half of the said fond or capital stock , then and in that case allannerly , it shall be , and is hereby allowed to scots men residing abroad , or to forraigners , to come in , subscribe , and be assumed for the superplus of the said half , and no otherwise : likeas , the quota of every mans part of the said stock whereupon he shal be capable to enter into the said company , whether he be native or forraigner , shall be for the least one hundred lib. sterl . and for the highest , or greatest three thousand lib. sterl . and no more directly nor indirectly in any sort : with power to the said company to have a common seal , and to alter and renew the same at their pleasure , with advice always of the lyon king at arms ; as also to plead and sue , and be sued ; and to purchass , acquire , possess , and enjoy lordships , lands , tenements , or other estate real or personal of whatsoever nature or quality , and to dispose upon and alienate the same , or any part thereof at their pleasure , and that by transferrs and assignment , made and entered in their books and records without any other formality of law , providing always , that such shares as are first subscribed for , by scots men within this kingdom shal not be alienable to any other than scots men living within this kingdom ; that the foresaid transfers and convoyancies as to lands and other real estate ( when made of these only and a part ) be perfected according to the laws of this kingdom anent the convoyance of lands and real rights , with power likewayes to the foresaid company , by subscriptions or otherways , as they shall think fit to raise a joint stock or capital fond of such a sum or sums of money , and under and subject unto such rules , conditions and qualifications , as by the foresaid company , or major part of them when assembled shal be limited and appointed to begin , carry on and support their intended trade of navigation , and whatever may contribute to the advancement thereof . and it is hereby declared , that the said joint stock or capital fond , or any part thereof , or any estate , real or personal , ships , goods , or other effects of and belonging to the said company , shal not be lyable unto any manner of confiscation , seisure , forfaulture , attachment , arrest or restraint , for and by reason of any embargo , breach of peace , letters of mark or reprisal , declaration of war with any forraign prince , potentate , or state , or upon any other account or pretence whatsomever ; but shal only be transferable , assignable , or alienable in such way and manner and in such parts and portions , and under such restriction , rules and conditions , as the said company shal by writing in and upon their books , records and registers direct and appoint , and these transfers and assignments only , and no other shal convoy the right and property , in and to the said joint stock , and capital fond and effects thereof above-mentioned , or any part of the samen , excepting always as is above-excepted , and that the creditors of any particular member of the company may by their real diligence affect the share of the profit falling , and pertaining to the debitor , without having any further right or power of the debitors part and interest in the stock or capital fond , otherwise than is above-appointed , and with this express provision , that whatever charges the company may be put to , by the contending of any of their members deceased , or of their assigney , creditors or any other persons in their rights : the company shal have retention of their charges and expenses in the first place , and the books , records , and registers of the said company or authentick abstracts , or extracts out of the same are hereby declared to be good and sufficient for evidents in all courts of judicator , and else where . and his majesty with advice foresaid , farder statutes and declares , that the said iohn lord beilhaven , adam cockburn of ormistoun , lord justice clerk , mr. francis montgomery of giffen , sir iohn maxwel of pollock , sir robert chiesly present provost of edinburgh , iohn swintoun of that ilk , george clark late baillie of edinburgh , mr. robert blakewood , and iames balfour merchants in edinburgh , and iohn corss merchant in glasgow , william paterson esquire , iames fowlis , david nairn esquires , thomas deans esquire , iames chiesly , iohn smith , thomas coutes , hugh frazer , ioseph cohaine , daves ovedo , and walter stuart merchants in london , and others to be joyned with , or assumed by them in manner above-mentioned , and their successors , or major part of them assembled in the said company , shall and may in all time coming by the plurality of votes agree , make , constitute , and ordain all such other rules , ordinances and constitutions as may be needful for the better government and improvement of their joynt stock , or capital fond in all matters and things relateing thereunto : to which rules , ordinances , and constitutions , all persons belonging to the said company , as well directors as members thereof , governours , or other officers , civil or military , or others whatsoever shall be subject , and hereby concluded ; as also to administrat and take oaths de fideli , and others requisit to the management of the foresaid stock and company . and the said company is hereby impowered to equipp , fit , set out , fraught , and navigat their own , or hired ships , in such manner as they shall think fit , and that for the space of ten years from the date hereof , notwithstanding of the act of parliament one thousand six hundred and sixty one years , intituled act for encouraging of shipping and navigation , where with his majesty with consent foresaid dispenses for the said time allanerly , in favours of the said company , and that from any of the ports or places of this kingdom , or from any other parts or places in amity , or not in hostility with his majesty , in warlike or other manner to any lands , islands , countreys , or places in asia , affrica , or america , and there to plant collonies , build cities , towns , or forts , in or upon the places not inhabited , or in , or upon any other place , by consent of the natives and inhabitants thereof , and not possest by any european soveraign , potentate , prince , or state , and to provide and furnish the foresaid places , cities , towns , or forts with magazines , ordinances , arms , weapons , ammunition , and stores of war , and by force of arms to de end their trade and navigation , collonies , cities , towns , forts , and plantations , and other their effects whatsoever ; as also to make reprisals , and to seek and take reparation of damnage done by sea , or by land , and to make and conclude treaties of peace , and commerce with the soveraigns , princes , estates , rulers , governours , or proprietors of the foresaid lands , islands , countreys , or places in asia , affrica , or america ; providing always , likeas , it is hereby specially provided , that all ships imployed by them shall return to this kingdom with their effects , under the pain of confiscation , forefaulture , and seizure of the ship and goods , in case of breaking of bulk before their return , excepting the case of necessity , for preserving the ship , company and loadning allanerly . and his majesty with consent foresaid , doth farder statute and ordain , that none of the leidges of this kingdom shall , or may trade or navigat to any lands , islands , countreys , or places in asia , or affrica , in any time hereafter , or in america , for , and during the space of thirty one years , to be counted from the passing of this present act , without license and permission in writing from the said company : certifying all such as shall do in the contrair hereof , that they shall forefault and omit the third part of the ship , or ships , and of the cargo , or cargoes therein imployed , or the value thereof , the one hal to his majesty as escheat , and the other half to the use and benefit of the said company : for the effectual execution whereof , it shall be lawful to the said company , or any imployed by them , to seize the saids ships and goods in any place of asia , or affrica , or at sea upon the coasts of asia , or affrica , upon the transgression foresaid , by force of arms , and at their own hand , and that without the hazard of incurring any crime , or delinquency whatsomever on account of the said seizure , or any thing necessarly done in prosecution thereof , excepting always , and without prejudice to any of the subjects of this kingdom to trade and navigat , during the said space to any part of america , where the collonies , plantations , or possessions of the said company shall not be settled . and it is further hereby enacted , that the said company shal have the free and absolute right and property , onely relieving and holding of his majesty , and his successors in soveraignity , for the onely acknowledgment of their allegeance , and paying yearly a hogshead of tobacco , in name of blench-duty , if required allanerly , in , and to all such lands , islands , collonies , cities , towns , forts , and plantations , that they shall come to establish , or possess in manner foresaid ; as also , to all manner of treasures , wealth , riches , profits , mines , minerals , fishings , with the whole product and benefit thereof , as well under as above the ground , and as well in rivers and seas , as in the lands thereto belonging , or from , or by reason of the same in any sort , together with the right of government and admirality thereof ; and that the said company may by vertue hereof grant and delegat such rights , properties , powers , and imunities and permit and allow such sort of trade , commerce , and navigation into their plantations , collonies , cities , towns , or places of their possession , as the said company from time to time shall judge fit and convenient : vvith power to them to impose and exact such customs , and other duties upon and from themselves , and others treading with , and coming to the said plantations , cities , towns , places and ports , and harbours thereof , as the company shal think needful for the maintainance and other publick uses of the same , holding always , and to hold the whole premisses of his majesty , and his successors kings of scotland , as soveraigns thereof , and paying only for the same , their acknowledgement and allegeance , with a hogshead of tobacco yearly , in name of blench duty , if required , for all other duty , service , claim or demand whatsomever . with power and liberty to the said company to treat for , and to procure and purchase such rights , liberties , priviledges , exemptions and other grants , as may be convenient for supporting , promoting , and enlarging their trade and navigation from any foreign potentate or prince whatsoever , in amity with his majesty ; for which the general treaties of peace and commerce betwixt his majesty and such potentates , princes , or states shal serve for sufficient security , warrand and authority , and if contrair to the saids rights , liberties , priviledges , exemptions , grants , or agreements , any of the ships , goods , merchandise , persons , or other effects whatsoever , belonging to the said company , shal be slopt , detained , embazled , or away taken , or in any sort prejudged or damnified ; his majesty promises to interpose his authority , to have restitution , reparation and satisfaction made for the dammage done , and that upon the publick charge , which his majesty shal cause depurse , and lay out for that effect . and farder , it is hereby statute , that all ships , vessels , merchandise , goods , and other effects whatsoever belonging to the said company , shal be free of all manner of restraints , or prohibitions , and of all customs , taxes , cesses , supplies , or other duties imposed , or to be imposed by act of parliament , or otherwise , for and during the space of twenty one years , excepting alwise the whole duties of tobacco and suggar , that are not of the growth of the plantations of the said company . and farder , it is enacted , that the said company by commission under their common seal , or otherwise as they shal appoint , may make and constitute all and every their directors , governours , and commanders in chief , and other officers civil or military by sea , or by land ; as likewise that the said company may inlist , inroll , agree and retain all such persons subjects of this kingdom , or others whatsoever , as shal be willing and consent to enter in their service or pay , providing always that they uplift or levy none within the kingdom to be soldiers , without leave or warrand first obtained from his majesty , or the lords of his privy council , over which directors , governours , commanders in chief , or other officers civil or military , and others whatsoever in their service and pay , the company shal have the power , command and disposition both by sea and land. and it is farder statute , that no officer civil or military , or other person whatsoever within this kingdom , shal impress , entertain , stop or detain any of the members , officers , servants or others whatsoever , off , or belonging to the said company , and in case the said company , their officers or agents , shal find or understand any of their members , officers , servants , or others aforesaid to beimpressed , stopped or detained , they are hereby authorized and allowed to take hold of , and release the foresaid person impressed or stopped in any part of this kingdom , either by land or water ; and all magistrats and others his majesties officers civil and military , and all others are hereby required in their respective stations , to be aiding and assisting to the said company , under the pain of being lyable to all the loss , dammage , and detriment of the said company , by reason of the foresaid persons their neglect . and farder that the said company , whole members , officers , servants , or others belonging thereto , shal be free , both in their persons , estates , and goods , imployed in the said stock and trade , from all manner of taxes , cesses , supplies , excises , quartering of souldiers transient or local , or levying of souldiers , or other impositions whatsoever , and that for and during the space of twenty one years . and lastly , all persons concerned or to be concerned in this company , are hereby declared to be free denizons of this kingdom , and that they with all that shal settle to inhabit , or be born in any of the foresaid plantations , collonies , cities , towns , factories , and other places that shal be purchast and possest by the said company , shal be repute as natives of this kingdom , and have the priviledges thereof . and generally , without prejudice of the specialities foresaid , his majesty with consent foresaid , gives and grants to the said company , all power , rights and priviledges , as to their persons , rules , orders , estates , goods and effects whatsoever , that by the laws are given to companies allowed to be erected for manufactories , or that are usually given in any other civil kingdom or common-wealth , to any company there erected for trade and commerce . and for the better establishment and greater solemnity of this act and gift , in favours of the said company , his majesty doth farder ordain letters patent to be expede hereupon , containing the whole premisses vnder the great seal of this kingdom , for doing where of per saltum ▪ thir presents shal be sufficient warrand both to the director and chancellor , or keeper of the great seal , as use is in like cases . ix . act adjourning the session till the first day of november . iune . . whereas , by a former act in this session of parliament , the sitting of the session was adjourned until the first day of iuly next , which time being found yet too short , his majesty , with advice of the estates of parliament , continues the foresaid adjournment until the first day of november next to come , in the terms , and with the qualifications contained in the said first act of adjournment of the session in all points . x. act for pole-money . iune . . the estates of parliament taking to their consideration , that in regard of the great and eminent dangers that threaten this kingdom from forraign enemies , and intestine disaffection , and the designs of evil men , and that our coasts are not sufficiently secured against privateers ; and that therefore it is necessar , that a compleat number of standing forces be maintained , and ships of war provided for its necessary defence ; as also considering , that beside the supplie upon the land-rent , other fonds will be requisit for the foresaid end , do for one of these fonds freely and chearfully offer to his majesty an subsidy to be uplifted by way of pole-money , and for making of which offer effectual , his majesty , with advice and consent of the estates of parliament foresaid , doth statute and ordain , that all persons of whatsoever age , sex , or quality , shal be subject and lyable to a pole of six shilling , except poor persons who live upon charity , and the children under the age of sixteen years , and in familia of all these persons whose pole doth not exceed one pound ten shilling scots . that beside the said six shilling imposed upon all the persons that are not excepted : a cottar having a trade shal pay six shilling more , making in the hail twelve shilling for every such cottar . that for each servant shal be payed by the master , for which the master is impowred to retain the fourtieth part of his yearly fee , whereof bountieth to be reckoned a part , ( excepting livery cloaths ) in the number of which servants are understood , all who receive wages or bountieth for any work , or imployment whatsoever , for the term or the year as they have , or shall serve , and in case they be not alimented in familia with their masters , then if they be not above the degree of a cottar or hynd , they are to have two third parts of wages and bountieth , or if above the said degree one third part of wages and bountieths , first deduced for their aliment . that all sea-men pay twelve shilling scots in name of pole. that all tennents pay in name of pole to the king , the hundreth part of the valued rent , payable by them to the master of the land , and appoints the master of the ground to adjust the proportions of this pole amongst his tennents , according to the respective duties payable by them in money or victual , effeiring to his valued rent . that all merchants , whether sea-men , shop-keepers , chapmen , tradesmen and others , whose free stock and means ( not including workmens tools , houshold-plenishing , nor stocks of tennents upon the farms and possession ) is above five hundreth merks , and doth not extend to five thousand merks , shal be subject and lyable to two pound ten shilling of pole. and that all these ( not including as above ) whose free stock and means is above five thousand merks , and does not extend to ten thousand merks , shal be subject to four pound of pole. that all merchants , whether sea-men , shop-keepers , chapmen , trades-men and others ( not including as above ) whose free estate and stock extends to , or is above ten thousand merks in worth and value , shall be lyable to ten pound of pole. that all gentlemen so holden and repute , and owning themselves to be such , and who will not renounce any pretence they have to be such , and which renunciations shal be recorded in the herauld . register gratis , shal be subject and lyable to three pound of pole-money , if they be not otherways classed , and upon another consideration be subject to a greater pole. that all heretors of twenty pounds , and below fifty pounds of valued rent , be subject and lyable to twenty shilling of pole-money . that all heretors of fifty pounds and below two hundred pounds of valued rent , be subject and lyable to four pounds of pole-money . that all heretors of two hundred pounds , and under five hundred pounds of valued rent , be lyable to nine pounds of pole-money . that all heretors of five hundred pounds or above the same , and under one thousand pounds of valued rent , be subject and lyable to twelve pounds of pole-money , and that they pay half a crown for each of their male-children living in familia . that all heretors of one thousand pounds of valued rent , and above the same , and all knight baronets and knights , be subject and lyable to twenty four pounds of pole-money , and that they pay for each of their male-children in familia three pounds . that all lords pay fourty pounds of pole-money . that all viscounts pay fifty pounds of pole-money . that all earls pay sixty pounds of pole-money . that all marquesses pay eighty pounds of pole. that all dukes pay an hundred pounds of pole. that the sons of noblemen pay according to their ranks , viz. all dukes eldest sons as marquesses , and their youngest sons as earls . all marquesses eldest sons as earls , and their youngest sons as viscounts . all earls eldest sons as viscounts , and their younger sons shal be lyable in twenty four pounds of pole. all viscounts , and lords sons shal be lyable in twenty four pounds of pole. that all widows whose husbands would have been lyable to one pound ten shilling of pole or above , are to be subject and lyable to a third-part of their husbands pole , except heiresses , who shal be subject to the same pole their predecessors would have been . that all nottars and procurators before interior courts , and messengers at arms , are to be subject and lyable to four pounds of pole-money . that all writers not to the signet , agents and clerks of inferior civil courts , and macers and under-clerks of session , shal pay six pounds of pole-money . that all advocats , clerks of soveraign courts , writers to the signet , sheriffs and their deputs , commissars and their deputs , doctors of medicine , appothecaries , chyrurgeons , and others repute doctors of medicine , pay twelve pounds of pole. that all commissionat officers of the army upon scots pay shal be lyable in two days pay for their pole. that all persons who are to pay the said respective poles , tho they be poled in different capacities , are only to pay at the highest rate above-mentioned , and that always over and above the general pole. and for the better stating , ordering and uplifting of the said pole , his majesty with advice foresaid , a statutes and ordains , that the commissioners of assessment or their quorum , shall meet and conveen at the ordinar place of their meeting , upon the second tuesday of august , one thousand six hundred ninety five years ; or shall appoint such other heretors as they shall think fit , and there shall divide the whole commissioners , whether present or absent , or shall appoint such other heretors as they shall think fit , into such divisions as they shall think meet , appointing paroches one or more for commissioners one or more , as they shall see convenient , to meet the last tuesday of the said moneth of august , at the respective places to be appointed , impowering the saids commissioners to take up rolls and lists of all the poleable persons within the respective bounds appointed to them , containing the names , qualities and degrees of the several persons , and of the value of the estates belonging to them , conform to the said act. and ordains the magistrats of burrows royal to meet the third tuesday of the said month of august , and to take up rolls and lists of all the poleable persons within the respective burghs , containing their names , qualities and degrees , and the value of their estates ; and which commissioners and magistrats of burghs are to give intimation at the kirk-door upon a sunday , upon three days warning at least to the persons to be poled , to compear before them at the paroch-church , and give up their names , qualities , degrees , and values of their estates , to the effect the respective poles may be stated and set down by the said commissioner , or commissioners of assessment , or magistrats of burghs respective , and which rolls the saids persons are to give up , or send under their hand , if they can write , otherwise if they cannot write , their name , quality , degree , and estate , shal be marked by the clerk , as they give it up , excepting tennents , whose names , and the pole-money payable by them , shall be given and sent by their masters under their hand , with certification , that such as do not compear , or send under their hands their names , qualities , and value of their estates , or do give up their quality , degree , or value of their estates , otherways than it should be , they shall be lyable in the quadruple of their pole , the equal half whereof shall belong to the informer , who shall make the same appear . and which lists and rolls , being so made up within the respective sub-divisions , shall be recorded and booked in a register of the shire , or burgh for that purpose : whereof there shall be an abstract sent to the lords of the thesaurie , betwixt and the first of october , one thousand six hundred ninety five years , containing the number of the persons in the several classes and ranks above specified , with the extent of their pole. and his majesty , with advice and consent of the saids estates of parliament , ordains the foresaid pole-money to be payed at the term of martinmass , one thousand six hundred ninety five years , or within thirty days thereafter , at the respective paroch kirks , where the persons concerned dwell , for which discharges are to be given to the payers gratis . and requires the commissioners of assessment , and magistrats of burghs , or the farmers , in case the same shall be set in farm , to cause intimation to be made for the payment thereof , at the kirk-doors of the several paroch-kirks upon the first sunday of october one thousand six hundred ninety five . certifying such as shall not make punctual payment at the said term of martinmass , one thousand six hundred ninety five , or within the said thirty days thereafter , shall be lyable in the double , if paying within other thirty days thereafter , or if failzieing after both the saids thirty days , in the quadruple of their pole : and ordains execution to be used against them for the same , by poynding of their readiest goods , or imprisoning their persons ; the foresaid poynding and imprisonment alwayes proceeding upon the sentence of one of the commissioners for the assessment , or any other inferior judge where the person lives . likeas his majesty with advice and consent foresaid , hereby impowers the lords of privy council , to order and appoint such furder methods and courses as they shall judge fit for stateing and inbringing of the pole-money aforesaid , and to allow out of the said pole-money such charges and expenses as shall be necessary for execution of this act. and his majesty and estates aforesaid , do hereby strictly appropriat , destinat , and appoint the sums to be raised by this act , for the ends and uses above-specified , conform to his majesties letter , whereof three hundred thousand pound to be bestowed in the first place , for providing and maintaining of the ships of war for one year , and which money the lords of thesaury are hereby ordained to furnish and answer to the commissioners of admirality , when called for , to the effect above-specified : and also the lords of privy council are hereby fully impowered to decide and determine all questions and difficulties hereby undetermined , that may arise anent the premisses . and lastly , it is hereby declared , that no persons lyable in payment of this pole , shall be holden to produce their discharges , or receipts of the same , after the term of martinmass , one thousand six hundred ninety six years , conform to his majesties letter . xi . act against blasphemy . june . . our soveraign lord with advice and consent of the estates of parliament , does hereby ratifie , approve , and confirm the twenty first act of the first session of the first parliament of king charles the second , intituled , act against the crime of blasphemy , in the hail heads , clauses , and articles thereof , and ordains the same to be put to due and punctual execution : and farder , his majesty with advice and consent foresaid , statutes and ordains , that whoever hereafter , shall in their writing or discourse , deny , impugn , or quarrel , argue , or reason against the beeing of god , or any of the persons of the blessed trinity , or the authority of the holy scriptures of the old and new testaments , or the providence of god in the government of the world , shall for the first fault be punished with imprisonment , ●ay and while they give publick satisfafaction in sackcloth to the congregation , within which the scandal was committed . and for the second fault , the delinquent shall be fyned in an years valued rent of his real estate , and the twentieth part of his free personal estate , ( the equal half of which fines , are to be applyed to the use of the poor of that paroch , within which the crime shal happen to be committed , and the other half to the party informer , ) besides his being imprisoned , ay and while he make again satisfaction ut supra . and for the third fault , he shall be punished by death as an obstinat blasphemer : likeas , his majesty with advice and consent foresaid , hereby authorizes , and strictly requires , and enjoyns all magistrats , and ministers of the law , and judges within this kingdom , to put this present act in execution as to the first fault . and does hereby impower and require all sheriffs , stewarts , baillies of bailliaries , and regalities , and their deputs , and magistrats of burghs , to put this present act in execution as to the second fault . and as to the third fault , his majesty with advice and consent foresaid , remits the execution of this present act to the lords of his majesties justiciary . xii . act against irregular baptisms and marriages . iune . . our soveraign lord considering , that the baptizing of children , and solemnizing of marriage by the laws and custom of this kingdom , and by the constitutions of this church , have alwise been done by ministers of the gospel authorized by law , and the established church of this nation ▪ and that notwithstanding thereof , several ministers now outed of their churches do presume to baptize children , and solemnize marriage without proclamation of banns , or consent of parents , and sometimes within the forbidden degrees : therefore , his majesty with advice and consent of the estates of parliament , strictly prohibits and discharges all outed ministers , to baptize any children , or solemnize marriage betwixt any parties in all time coming , under the pain of imprisonment , ay and while he find caution to go out of the kingdom , and never to return thereto , and remits the execution of this act to the ministers of the law , who are to assist to the execution of the twenty third act of the fourth session of this parliament , for settling the quiet and peace of the church : declaring alwise , that this present act is without prejudice to the acts of parliament already made against privat and clandestine marriages , which are hereby declared to stand in full force , and that execution may proceed on the saids acts at the instance of the parties concerned , or of the procurator-fiscals of the jurisdictions , where they shall happen to be questioned . xiii . act against prophaneness . iune . . our soveraign lord , and estates of parliament , considering that the twenty fifth act of the second session of this current parliament , intituled , act against prophaneness , and the acts generally and particularly therein-ratified , has not taken the wished effect , through the negligence of the magistrats , officers , and others concerned to put the same in execution ; do hereby authorize , and strictly require and enjoyn all sheriffs and their deputs , stewarts and their deputs , baillies of baillities and regalities and their deputs , magistrats of burghs-royal and justices of peace within whose bounds any of the sins forbidden by the saids laws shal happen to be committed , to put the saids acts to exact and punctual execution , at all times , without necessity of any dispensation ; and against all persons , whether officers , souldiers , or others without exception ; with this certification , that such of the saids judges as shal refuse , neglect or delay to put the saids laws in execution , upon application of any minister , or kirk-session , or any person in their name , giving in information , and offering sufficient probation against the offender , that every one of the saids judges swa refusing , neglecting , or delaying , shal toties quoties be subject and lyable to a fyne of one hundred pounds scots , to be applyed for the use of the poor of the parish , where the scandal complained on was committed : declaring hereby that the agent for the kirk , the minister of the parish , or any other person , having warrand from him , or from the kirk session within the parish whereof the scandal complained on was committed , shal have good interest to pursue before the lords of session , any of the foresaid judges , who shal happen to refuse , neglect , or delay to put the saids laws against prophaneness to exact and punctual execution , who are hereby ordained to proceed summarly , without the order of the roll , and that it shal be a sufficient probation of their refusal , neglect or delay , if the pursuer instruct by an instrument under a nottars hand , and witnesses thereto subscribing and deponing thereupon , that he did inform the saids judges of the said scandal , and offered a sufficient probation thereof , unless the judge swa pursued condescend and instruct , that within the space of ten days after the said application , he gave order to cite the party complained on , to compear before him , within the space of ten days , and that at the day of compearance he was ready and willing to have taken cognition and tryal of the scandal complained on , and instruct and condescend on a relevant reason , why the said laws were not put in execution against the person complained on . xiv . act for restraining the prophanation of the lords day , by keeping weekly-mercats on munday and saturnday . iune . . our soveraign lord considering , that there is much occasion given for profanation of the lords-day , by keeping of weekly-mercats on munday and saturnday , and that for preventing of this abuse , there are several acts of parliament prohibiting the keeping of weekly-mercats the saids days within royal-burghs ; but the saids acts not comprehending the burghs of regality and barrony , and weekly-mercats in villages and kirk-towns , the saids burghs , villages and kirk-towns are necessitate to keep their weekly-mercats on the saids days , conform to the special acts of parliament made in their favours ; and yet many of the saids burghs , villages and others would most willingly alter and change the saids mercat days , if they were but impowered and authorized for that effect . therefore , his majesty with the advice and consent of the estates of parliament , does not only ratifie and approve the saids acts of parliament made against the keeping of weekly-mercats upon mundays and saturndays within royal-burghs , but likewise does declare it leisume and lawful to all burghs of regality and barrony , and villages , and kirk-towns , whose weekly-mercats are kept the saids days , to change and alter the same : and the saids burghs , villages , and others are hereby authorized to choise and appoint any other days of the week they think fit for the keeping and holding of the saids weekly-mercats , they always making timous intimation of the said change to the next adjacent burghs , and providing they pitch not upon the mercat-day of any burgh-royal next adjacent , or of an other mercat-town within four miles . and that this act be not extended against fleshers within royal-burghs , who may keep mercats of fleshes in their respective burghs , upon these days , this act notwithstanding . xv. act for encouragement of preachers at vacant churches be-north forth . iuly . . our soveraign lord considering that there are many churches vacant upon the north-side of the water of forth , which cannot be soon legally planted , nor in the interim otherways supplyed than by the presbytries in whose bounds they ly , theit imploying some preachers who are not setled in churches to preach in the saids vacant churches for some time , and that the intertaining of these preachers out of the first end of the vacant stipends of the paroches to which they preach , during their service , is a most proper pious use within the paroch : therefore his majesty , with advice and consent of the estates of parliament , for encouraging of the said preachers swa to be imployed by the presbytries , doth hereby destinat , appoint and allow out of the first end of the vacant stipends of the respective churches , at which they shall preach by invitation or appointment , of the respective presbytries within whose bounds the samine do ly , to every one of the said preachers twenty merks scots , for their preaching each lords day , forenoon and afternoon , in the said vacant churches , and that whether the saids preachers be imployed by the presbytry to preach at one church , or at several churches by turns within their bounds ; declaring hereby a testificat under the presbytries hands , bearing that such a person hath upon their invitation preached so many lords days at such a church within their bounds , or at such and such churches within their bounds by turns , shall be a sufficient probation thereof , whereupon the saids preachers shall by vertue of this present act , have power and undoubted right to al 's many twenty merks , out of the first and readiest of the vacant stipends of the respective paroch-churches , as the said certificats shall bear them to have preached lords days thereat : and for preventing the trouble and expenses the said preachers would be put to in recovering payment of the saids allowances hereby granted effeiring to their services , if each of them should pursue for their own part , out of the particular vacant stipends of the respective churches at which they shall preach . his majesty with advice and consent foresaid , doth hereby impower the respective presbytries within whose bounds the respective vacant churches do ly , to grant commissions to such persons as they sha'l think fit for uplifting al 's much out of the first end of the vacant stipends , within their bounds where the said preachers shal serve at their invitation , as will pay and satisfie the saids allowances hereby granted to the persons invited by them to preach thereat , accompting ut supra for each lords days service ; with power to the said factors , to uplift , and if need be , to pursue for the same before the judge ordinary of the bounds ; discharging all advocations , as also suspensions , save upon consignation , and with this declaration , that if at the discussing of the suspension , the letters shall be found orderly proceeded , the wrongous suspender shall be decerned in a fifth part more , which factor shall be obliged to compt to the said preachers , who shall be imployed by the presbytries for the said allowances , to be uplifted by them ▪ according to the number of days to be contained in the presbytries certificat . likeas , his majesty with advice and consent foresaid , for encouragement of the said factors , and defraying their expenses , does hereby allow to every one of the said factors so to be appointed by the said presbytries , as much as corresponds to a tenth part of the said allowances , which they are to uplift further for their own use , out of the first end of the said vacant stipends , and with the benefit of the provisions above-mentioned . xvi . act anent the ease of annualrents due by persons restored , and anent the creditors diligence to be vsed against them . iuly . . for as much as by the general act rescissory of fines and forfaultures in this current parliament , the consideration of the ease that was to be given to the persons thereby restored of the bygone annualrents due by them , and if the same ought to be granted to their cautioners , and what time diligence should be superseded against them , for payment of their principal sums , and such annualrents to which they were to be lyable , was remitted to the commission of fines and forfaultures therein-named , that they might report their opinion thereof to the parliament , which is not yet done ; and it being the interest of the persons restored , and their creditors , to have the same now determined : therefore his majesty , with advice and consent of the estates of parliament , statutes and ordains , that during the time the persons restored by this present parliament were dispossessed of their estates , they and their cautioners are to be free of the payment of annualrents , unless that the party restored either hath recovered all or some part of his rents , from which he was excluded by the forfaulture ; in which case the person restored , and not the cautioner , shall be lyable to the payment of the annualrents during the time of his being dis●ossest , in swa far as he hath recovered the same , or otherways that the party restored may recover all or some part of the said rent due during the years that he was dispossest , in which case the party restored shall have no ease of any by gone annualrents , but upon his assigning to his creditors , with warrandice from his own fact and deed , any action competent to him for recovering all or any part of the said rents due during the time of his being dispossest ; declaring always , that when a cautioner for a person restored , did actually pay without collusion before the revolution , either principal sum or by gone annualrents ▪ or any part thereof , or had his lands adjudged therefore before the said revolution , or having given a bond , or suffered decreet before the revolution , hath made payment , or had his lands adjudged since the revolution , the foresaid ease and benefit granted in favours of the person restored , is no ways to be obtruded against the cautioner in that case . as also , it is hereby statute and ordained , that where persons restored have made payment since the revolution of any annualrents , for these years during which they were dispossest of their estates , it shall be leisume for them to retain al 's much in their own hand of the principal sums and annualrents yet resting , as extends to the foresaid annualrents swa payed by them , ( the annualrents unpayed being always discounted in the first place ) and where the debt is altogether payed , the party restored shall by vertue of this act , have action of repetition against his creditor , for refounding the said annualrents payed out by him for the years during which he was excluded from the possession of his estate by the forfaulture . likeas , his majesty with advice and consent foresaid , statutes and ordains , that it shall be leisume to the creditors of persons restored by this parliament , to affect the debitors estate for payment of their principal sums and annualrents resting ( except such annualrents whereof they are liberat by this present act , ) and that immediatly furth and after the date hereof , discharging hereby all personal execution against the persons restored for payment of any principal sums due by them before their forfaulture , till wh●●sunday next to come , in the year of god one thousand six hundred and fourscore sixteen years , after which all personal diligence shall be competent against the persons restored , unless they dispone and put the creditor in possession of as much of their estate ( whereof the creditor is to have his election , except as to the house , park and mains ) as will satisfie the principal sum and annualrents thereof resting , and not hereby given down at the ordinar rate of the countrey where the lands ly , and that free of incumbrances , which is to be done at the sight of the lords of session in a suspension , to be raised by the persons restored , upon the said offer redeemable , nevertheless within the space of five years for payment of what is resting of the creditors debt , discounting his intromissions ; and declaring always , that how soon the creditor shall be excluded from the possession of the saids lands swa to be disponed to him by the person restored , it shall be leisume to the creditor , immediatly thereafter , to use all manner of diligence personal and real for recovering of his debt for which the lands were disponed to him . likeas , his majesty , with advice and consent foresaid , statutes and ordains , that where a person restored offering to dispone his lands to his creditors , cannot purge and disburden the lands offered of real incumbrances , by the sight of the lords , and put the creditor in the free possession thereof , swa that he will be lyable to the personal diligence of his creditors after whitsunday one thousand six hundred fourscore sixteen years , that then if he demand the benefit of a cessio bonorum , the lords of the session are hereby allowed to grant the same to him upon his calling of his creditors , and making faith , and disponing in the common form , without necessity of his being imprisoned the time of raising or obtaining thereof , or of wearing the habit , after obtaining of the same . and likeways , it is hereby declared , that where any person during the standing of the said forfaulture now rescinded , did acquire any debts due by the person restored , they shall have action allannerly against the person restored for the sums truely payed out by them , and annualrent thereof , and shal lose all benefit of their compositions & eases , and his majesty and the estates of parliament , do hereby remit the case of the deceast william muir of caldwell , for repetition of by-gone rents , and all other cases of forfault persons restored depending before them , to be determined by the lords of session , excepting such cases wherein reports have been prepared by the commission for fines and forfaultures for the parliament , in which the pursuer may at his option futher insist , till the decision thereof before the parliament or lords of the session . xvii . act anent the mint . iuly . . our soveraign lord , considering that by the act of parliament one thousand six hundred and eighty six intituled , act anent an humble offer to his majesty for an imposition upon certain commodities , for defraying the expense of a free coinage , and other matters relating to the mint ; the foresaid expense of a free coinage , and several matters relating to the mint were indeed settled , but neither so perfectly nor so fully as experience hath since discovered , but that there is still need and place for a further regulation : doth therefore , with advice and consent of the estates of parliament , statute and ordain , that notwithstanding it be recommended by the said act to the lords of his majesties privy council , to try by some of their number , every journal of coin by it self distinctly , and that twice every year , viz. in the month of iuly and december yearly , yet seing the foresaid distinct tryal of every journal hath been found both a tedious and superfluous labour , and is not practised any where else , it shal be leisom for the said lords of his majesties privy council , to make the said tryal by such of their number as they shal think fit , not of every journal of coin by it self distinctly , but by taking and making tryal of any one or more single journals , as they shal think fit , and then to cause melt down in one mass or lignat , the rest of the journals , to be at that time tried , and to take an essay of the mass so melted down , as said is , which shal stand for the whole , but prejudice always to the said lords of council to make distinct tryals of the hail foresaid journals , as they shal see cause , as also , still recommending to them the exact tryal of all matters relating to the coinage , at the foresaid two times above-specified , in manner mentioned in the said act , and that notwithstanding of the foresaid act , which is innovat in so far as the same is inconsistent with this present act. xviii . act anent the quorum of the commission of teinds . iuly . . our soveraign lord the kings majesty , considering that there are many actions depending before the lords , and others commissioners , for plantation of kirks , and valuation of teinds , which cannot be decided and determined , in respect that the saids commissioners have not met so frequently as was necessary , by reason of the difficulties of getting a quorum , whereby the leidges have been much prejudged ; for remei●ing whereof , our soveraign lord , with advice and consent of the estates of parliament , statutes and ordains , that seven commissioners , whereof one of every state shal be an sufficient quorum , who being present at the down-sitting and constituting of the meeting : the withdrawing of one or more of any of the three states , after constituting of the meeting , shal not breach the quorum , seven of the commissioners of the other state or states being still present , without prejudice to the officers of state to be still members of the said commission , tho the presence of one or more of them be not necessary to constitute the foresaid quorum . and his majesty , with consent foresaid , does hereby ratify and approve the twenty fourth act of the fourth session , and thirtieth act of the second session of this current parliament , in the hail heads , articles , and clauses thereof , excepting in so far as the samen is innovat be this present act ; and the saids commissioners are hereby appointed to meet every wednesday in the afternoon , during the sitting of the session . xix . act anent the duty on scots muslin . iuly . . our soveraign lord , with advice and consent of the estates of parliament , statute and ordain , that in all time coming , all muslin , plain or stript , or camrick , and all sorts of linen under whatsomever name or designation , manufactored within the kingdom , shal at the exporting thereof pay custom only as scots linen , conform to the book of rates . xx. act anent the post-office . iuly . . our soveraign lord considering , that for the maintainance of mutual correspondence , and preventing of many inconveniences that happen by privat posts , several publick post-offices have been heretofore erected , for carrying and receiving of letters by posts to and from most parts and places of this kingdom , and that the well ordering thereof , is a matter of general concern , and of great advantage , as well for the conveniences of trade and commerce , as otherways ; and to the end that speedy and safe dispatches may be had , and that the best means for that end , will be the settling and establishing a general post-office : therefore , his majesty with advice and consent of the estates of parliament , statutes , ordains , and appoints an general post-office to be be keeped within the city of edinburgh , from whence all letters and pacquets whatsoever , may be with speed and expedition sent into any part of the kingdom , or any other of his majesties dominions , or into any kingdom or countrey beyond seas , by the pacquet that goes sealed for london , at which said office , all returns and answers may be likeways received ; as also , that a master of the said general-letter-office shall be from time to time appointed by his majesty , his heirs , and sucessors , by letters , patents , under the privy seal of this kingdom , by the name and title of his majesties post-master-general ; or otherways , that the said office may be set in tack by the lords of his majesties thesaury and exchequer , as his majesty and his saids successors shall think most expedient : and that the said master of the said office , or tacks-man for the time respectively , and his deput or deputs authorized by him for that effect , and his and their servants , and no other person or persons whatsoever , shall from time to time have the receiving , taking up , or ordering , dispatching , sending posts with speed , and delivering of all letters and pacquets whatsoever , which shall from time to time be sent to and from , all and every the parts and places of this kingdom , to and from his majesties dominions , or places beyond seas , where he shall settle , or cause to be settled , posts or running messengers for that purpose : excepting such letters as are sent by any person or persons , to and from any place within this kingdom by their own servants , or by express sent on purpose about their own affairs , and letters directed along with , and relating to goods sent , or to be returned by common carriers allenarly : and where post-offices are not erected , and posts settled , his majesty with consent foresaid , allows the custom of sending by carriers or others as formerly , ay and while such offices be established and no longer . and farder , his majesty with advice and consent foresaid , statutes and enacts , that the said post-master-general , or tacks-man and their respective deputs and substitutes , and no other person or persons whatsoever , shall provide and have in readiness , sufficient horses and furniture for ryding post to all persons , ryding to and from all the parts and places of scotland where any post roads are , or shal be settled and established : but prejudice to the use of hyring of horses , which are not to ride post as formerly . and sicklike , his majesty with advice and consent foresaid , statutes , enacts , and ordains , that it shall be lawful for the said post-master general , or tacks-man and their saids deputs , to ask , exact , and receive , for the portage and convoyance of all such letters , which he or they shall so convoy , carry , or send post as aforesaid , and for providing and furnishing horses for ryding post as aforesaid , according to the several ra●es and sums after-mentioned , which they are not to exceed , viz. all single letters to berwick , or any part within fifty miles of edinburgh two shilling , double four shilling , and so proportionally ; all single letters to any place above fifty miles , and not exceeding a hundred miles , to pay three shilling , double six shilling , and so proportionally , all single letters to any place in scotland above a hundred miles , to pay four shilling , double eight shilling , and so proportionally : declaring nevertheless , that all single letters with bills of loadning or exchange , envoys , or other merchant accompts inclosed and sent to any place within the kingdom , shall be onely considered as single leters ; all pacquets of papers to pay each one as triple letters : and it shall be lawful for the said post-master-general , tacks-man , and their deputs , to ask , exact , take , and receive from every person , to whom he or they shall furnish horses , furniture , and guide for ryding post in any of the post roads aforesaid , three shilling scots for ilk horse hire for postage for every scots mile . and in like manner , his majesty with advice and consent foresaid , strictly prohibits and discharges , all other person or persons whatsoever , as well single , as bodies pollitick or incorporat , excepting the said post-master-general , or tacks-man , and their deputs , and the servants of noblemen , gentlemen , and others , in the cases particularly above-excepted allenarly , to carry , receive , or deliver any letters for hire , or to set up or imploy any foot post , horse post , or to settle post-masters within their jurisdictions , under the penalty of twenty pounds scots for every transgression , and an hundred pounds scots for each moneths continuance thereof , after intimation be is made to them in the contrair , and the saids penalties to be pursued for , before any judge competent , the one half thereof to be applyed for the use of the informer , and the other half for the use of the said post-master-general , or tacks-man respective ; and that no common carrier presume to carry any letters to , or from any places within this kingdom , where post-offices are settled , excepting the case aforesaid : certifying all such as do in the contrary , that upon seizure of any such carrier with the letters about him , or being convicted thereof before any judge competent , he shall be imprisoned six days for ilk fault , and fyned in the sum of six pounds scots , toties quoties : and because , it is not onely expedient for his majesties government , but likeways for the advancement of the trade of this kingdom , that a settled correspondence by weekly posts , be established with his majesties subjects in the kingdom of ireland , and that the said kingdom of ireland , will not be at the expense for maintaining the pacquet boats for passing to and from this kingdom ; therefore , his majesty with advice and consent foresaid , ordains and appoints the said general-post-master or tacks-man , to keep and maintain pacquet boats to go weekly , ( wind and weather serving , ) from port-patrick in this kingdom to donachadee in ireland , to carry and receive all letters to be sent betwixt this kingdom and the kingdom of ireland , and that the expense bestowed on these pacquet boats , be allowed to the said general-post-master or tacks-man , in part of his intromissions with the profits of the said general-letter office , or out of the tack duty when the same is set in tack or farmed , not exceeding the sum of sixty pounds sterling money yearly . and his majesty with consent foresaid , ordains and commands all the sheriffs , stewarts , baillies of regalities or royalties , magistrats of royal burghs , justices of peace , and all other judges and magistrats whatsoever , al 's well in burgh a● landward , to concur with and assist the post-master-general , tacks-man and their deputs , in the discharging of his trust , for rendring this act effectual for the ends above-written , and putting the same to all due and lawful execution within their respective bounds . and his majesty with consent foresaid , statutes and ordains , that no person or persons of whatsoever degree or quality , presume to stop , molest , hinder , or impede the several posts , al 's well foot posts , as horse posts authorized by , or bearing warrand from the said post-master-general , tacks-man , or their successors in office , by night or by day , under the pain and penalty of one thousand pound scots , attour the reparation of the damnages to any party lesed thereby ; far less to detain , rob , or take away any pacquets , under the pains contained in the acts of parliament . and his majesty with consent foresaid , ordains and appoints the said post-master-general , tacks-man and his said deputs , and their successors in their several offices , to take the oath of allegiance and subscribe the same with the assurance , appointed to be taken by all persons in publick trust , by the third act of the third session of this current parliament . and his majesty with consent foresaid , ordains general letters to be directed at the instance of the said general-post-master , or tacks-man , and their successors in office , against their several deputs , for the tack-duties of their respective offices , as is allowed for in-bringing any part of his majesties revenue . and lastly , the lords of his majesties privy council , are hereby authorized and impowered to take care , that particular post-offices be established over all the kingdom at places most convenient , and the times of parting of posts with letters , and of their running , be duly settled and published ; and generally , that this act be punctually observed and execute , and do all other things to make the same effectual for the true end and intent thereof . and ordains this present act to be published and printed , that none may pretend ignorance . xxi . explanatory act anent the excise of brandy . iuly . ▪ forasmuch as many actions have been commenced and pursued before the lords commissioners of thesaury and exchequer , to the great vexation and expense of the leidges , anent the meaning of the act of parliament first of december , intituled , act concerning the importation and excise of brandy ; by which act six shilling scots are imposed upon each pint , to be payed by the retailers in small 's ; and under pretence of the word retailers in the said act , the sub-taxmen and collectors have forced the leidges to pay for the same two or three times , and the merchants importers have been likewise charged therefore , notwitstanding that by the said act retailers are onely lyable . for remeid of which , our soveraign lord with consent of the estates of parliament , does hereby declare , that the six shilling upon the pint of brandy , shall hereafter be payable onely by toppers and retailers in small 's , who sell brandy by pints , gills , and lesser quantities than pints in taverns , shops , cellars , and the like , where the same is immediatly consumed , and by no others , notwithstanding of any former practice in the contrair . xxii . act against intruding into churches without a legal call and admission thereto . iuly . . our soveraign lord considering , that ministers and preachers , their intruding themselves into vacant churches , possessing of manses and benefices , and exercing any part of the ministerial function in paroches , without a legal call and admission to the saids churches , is an high contempt of the law , and of a dangerous consequence tending to perpetuat schism . therefore , his majesty with advice and consent of the estates of parliament , statutes and declares , that whoever hereafter shall intrude themselves into any church , or shall possess manse or benefice , or shall exercise any part of the ministerial function within any paroch , without an orderly call from the heretors and eldership , and legal admission from the presbytry within whose bounds it lies , shall be incapable of enjoying any church , or stipend , or benefice within this kingdom , for the space of seven years after their removeal from the church , and quiting possession of the stipend and benefice into which they intruded : likeas , his majesty with advice and consent foresaid , does hereby remit the execution of this present act to sheriffs , stewarts , baillies of bailliaries , and regalities , and their deputs , and to magistrats of burrows royal , who are hereby authorized and required , to remove and declare incapable , ut supra , all these , who shall hereafter intrude into churches within their respective jurisdictions , upon complaint from the presbytry , or any person having warrand from the presbytry , within whose bounds the saids intrusions shall happen to be made hereafter ; and that upon citation of ten days : ordaining hereby letters of horning and caption to be direct in communi forma , upon decreets to be given by the saids inferior judges , for compelling the saids intruders to remove from the saids churches and manses , and to quite possession of the saids stipends and benefices , and to desist and cease from exercing any ministerial acts within the saids paroches , into which they shall hereafter intrude . likeas , his majesty doeth hereby recommend to the lords of his majesties privy council to remove all these , who have already , since the establishment of this present church government , intruded into vacant churches , without an orderly call from the heretors and eldership of the paroch , and a legal admission from the presbytry within whose bounds the saids churches lies : as also , to take some effectual course for stopping and hindering these ministers , who are , or shall be hereafter deposed by the judicatories of this present established church ; from preaching or exercising any act of their ministerial function , which they cannot do after they are deposed , without a high contempt of the authority of the church , and of the laws of the kingdom establishing the same . xxiii . act anent lands lying run-rig . iuly . . our soveraign lord and the estates of parliament taking into their consideration , the great disadvantage , arising to the who●e subjects , from lands lying run-rig , and that the same is highly prejudicial to the policy and improvement of the natio● , by planting and inclosing , conform to the several laws and acts of parliament of before made thereanent : for remeid , his majesty with the advice and consent of the said estates , statutes and ordains , that wherever lands of different heretors ly run-rig , it shall be leisum to either party to apply to the sheriffs , stewarts , and lords of regality , or justices of peace of the several shires where the lands ly ; to the effect , that these lands may be divided according to their respective interests , who are hereby appointed and authorized for that effect ; and that after due and lawful citation of all parties concerned , at an certain day , to be prefixed by the said judge or judges . it is always hereby declared , that the saids judges , in making the foresaid division , shall be , and are hereby restricted , so as special regard may be had to the mansion-houses of the respective heretors , and that there may be allowed and adjudged to them the respective parts of the division , as shall be most commodious to their respective mansion-houses and policy , and which shall not be applicable to the other adjacent heretors : as also , it is hereby provided and declared , that thir presents shall not be extended to the burrow and incorporat acres , but that notwithstanding hereof , the same shall remain with the heretors to whom they do belong , as if no such act had been made . xxiv . act for obviating the frauds of appearand heirs . iuly . . our soveraign lord considering the frequent frauds and disappointments that creditors do suffer , upon the decease of their debitors , and through the contrivances of appearand heirs , in their prejudice : for remeid thereof , and also for facilitating the transmission of heretage in favours of both heirs and creditors , his majesty , with advice and consent of the estates of parliament , statutes and ordains , that if any man since the first of ianuary one thousand six hundred and sixty one , have served , or shal hereafter serve himself heir ; or by adjudication on his own bond , hath since the time foresaid succeeded , or shal hereafter succeed , not to his immediate predecessor , but to one remoter , as passing by his father to his goodsire , or the like ; then , and in that case , he shal be lyable for the debts and deeds of the person interjected , to whom he was appearand heir , and who was in the possession of the lands and estate to which he is served , for the space of three years , and that in so far as may extend to the value of the said lands and estate , and no further ; deducing the debts already payed : as also , with this order , as to the time past , that all the true and lawful debts of the appearand heir , entering as said is , and already contracted , with the true and real debts of the predecessor to whom he enters , shal be preferred in the first place . as also , his majesty , with advice and consent foresaid , statutes and ordains , that if any appearand heir for hereafter , shal without being lawfully served or entered heir , either enter to possess his predecessors estate , or any part thereof , or shal purchase , by himself , or any other to his behoove , any right hereto , or to any legal diligence , or other right affecting the same , whether redeemable or irredeemable , otherwise than the said estate is exposed to a lawful publick roup , and as the highest offerer thereat , without any collusion ; his foresaid possession or purchase shal be repute a behaviour as heir , and a sufficient passive title to make him represent his predecessor universally , and to be lyable for all his debts and deeds , sicklike as if the said appearand heir , possessing or purchasing , as said is , were lawfully served and entered heir to his said predecessor : declaring always , likeas , it is hereby declared , that the said appearand heir may bring the said estate to a roup , whether the estate be bankrupt or not . and it is further statute , that where rights or legal diligences , affecting their predecessors estates , shal be found settled in the person of any such near relation , to whom the appearand heir to the foresaid predecessor may also succeed as heir , the appearand heirs possessing by vertue of the said rights and diligences , except upon lawful purchase by publick roup , as said is , shal not only be a passive title , but the said rights and diligences in the person of the said near relation , shal only be sustained as valid to exclude the predecessors creditors , in so far as can be qualified and instructed , that these rights and diligences were truly and honestly purchased for payment of sums of money , and no further . and moreover , his majesty , with advice and consent foresaid , statutes and ordains , that for hereafter any appearand heir shal have free liberty and access to enter to his predecessors cum beneficio inventarii , or upon inventary , as use is , in executories and moveables , allowing still to the said appearand heir , year and day to deliberate , in which time he may make up the foresaid inventary , which he is to give up upon oath , full and particular as to all lands , houses , annualrents , or other heretable rights whatsoever , to which the said appearand heir may , or pretends to succeed ; which inventary to be subscribed by him before witnesses , duly insert and designed , shal be given in to the clerk of the sheriff court of the shire , where the defuncts lands and heretage lye ; or in case the defunct had no lands or heretage requiring seasin , to the clerk of the shire , where the defunct deceased : to which inventary , the sheriff , or sheriff-deput , with the clerk of the court , shal also subscribe in judgement , and record the same in their registers , and give extracts thereof , for all which , the upgiver of the said inventary shal pay no more to the court and clerk thereof , on any account , than the ordinary price of extracts in that court , for an extract of the said inventary : and this inventary is to be given in , recorded , and extracted as said is , within the said year and day , to deliberat ; and thereafter the foresaid extract thereof , shal within fourty days after the expiration of the said year and day , be again presented and registrated in the books of council and session , in a particular register to be appointed by the clerk register , for that effect : and the appearand heir entering by inventary , in manner foresaid , is hereby declared to be only lyable to his predecessors debts and deeds , secundum vires inventarii , and in as far as the value of the heritage , given up in inventary , will extend , and no farther . providing always , likeas , it is hereby specially provided , that if the aforesaid appearand heir shal have any intromission with the defuncts heretable estate , or any part thereof , otherways than necessary intromission , for custody and preservation , before his giving in , recording and extracting of the said inventary in manner foresaid ; or if he shal fraudfully omit any thing out of the said inventary , that is , which yet he shal be found to have intrometted with , or possessed , then , and in either of these cases , he shal lose the benefit of the inventary , and be universally lyable , as if entered heir without inventary . and farder , that if any part of the said heretable estate shal be without fraud omitted to be given up by him in the foresaid inventary , and shal not in the mean time be affected by the diligence of a lawful creditor , he shal have liberty , so soon as he comes to the knowledge thereof , and within fourty days thereafter , to make an eik of the same , to the said inventary ; which eik is to be made and subscribed , given in and recorded , in the same manner with the principal inventary above-mentioned . and lastly , it is hereby declared , that appearand heirs , if they please , may enter without inventary as formerly in all points , and that whether they enter with or without inventary , they are still to enter by service and retour , or by precepts of clare constat , in manner formerly accustomed . xxv . act anent the repetition of fines . iuly . . our soveraign lord considering , that by the eighteenth act of the second session of this current parliament , intituled , act rescinding the forefaultures and fines , past since the year one thousand six hundred sixty five ; all fines then unpayed , which were imposed by sentences , from the first day of ianuary one thousand six hundred sixty five , to the fifth of november one thousand six hundred eighty eight upon any person or persons for church irregularities or non-conformities , or refusing of publick bonds , subscriptions or oaths , or for not obeying acts , proclamations and orders thereanent , resetting or conversing with rebels , for the causes foresaid , refusing to depone in lybels against themselves , in capital cases , albeit restricted to an arbitrary punishment ; with all hornings , denunciations and intercommunings , given , pronounced , and issued furth in parliament , or by an other court or commission against any persons , for the saids causes , are expresly discharged : and further , that by the foresaid act , it was remitted to the commission , appointed for fines and forefaulters , to consider the grounds of repetition of such of the said fines as were payed to donators , or others having right from them , and other privat parties : and also considering that the said commission hath given no decision or determination upon the foresaid remit , whereby the parties lesed , who made payment of the said fines in manner foresaid , to donators , and others , have as yet received no redress : therefore his majesty , with advice and consent of the estates of parliament , doth statute and declare , that where fines were imposed by sentences from the first of ianuary one thousand six hundred sixty fives to the fifth of november one thousand six hundred eighty eight , upon any person for church irregularities and non-conformities , or refusing of publick bonds , subscriptions and oaths , for not obeying acts , proclamations and orders thereanent , resetting of , or conversing with rebells for the causes foresaid , refusing to depon upon lybells against themselves in capital cases , albeit restricted to an arbitrary punishment , and that the persons so fined , have made payment of the hail of the said fines , or any part thereof , to donators or others , that it shal be leasom for them to pursue the said donators or others for repetition , and who are hereby declared lyable to refound what they have received , together with the annualrent thereof since martimass one thousand six hundred eighty eight . and furder , his majesty , and the estates of parliament , having considered the act made in the year one thousand six hundred and ninety , rescinding fines and forefaulters , and that thereby the forefaulted persons are restored to their lands , rents and possessions , and the composition made by them or others in their name , ordained to be repayed by the donators or others ; and seing it is just , that the annualrents of the said compositions , since the date of the foresaid act be likewise payed . therefore , his majesty , with advice and consent foresaid , statutes and ordains , that annualrent from the date of the said act be repayed , with the compositions themselves , excepting always furth and frae this act , all fines imposed by mr. iohn meinzies advocat , while sheriff-deput of lanerk , in regard it is notorly known he fined not for any advantage to himself , but for prevention of rigorous execution from others , and remits all causes for repetition of fines depending before the parliament or commission to be discussed by the lords of session summarily , without abiding the course of the roll. and it is furder declared , that where any person forefaulted and restored as above , shal be found to be postponed in diligence , either for his payment as a creditor , or his relief as a cautioner , by reason of his forefaulture , he shal now , after his restitution be in the same case for preference , as if he had done all diligence possible for him , if not forefaulted . xxvi . act discharging popish persons to prejudge their protestant heirs in succession . iuly . . our soveraign lord understanding , that parents , and others of the popish religion , and that are so affected , do restrain and overawe their children , and appearand heirs , so as they cannot , though convinced in their consciences , by the light of the truth , abandon the popish errors and superstitions of their said parents , for fear that they may be by them dis-inherited , and deprived of any benefit of succession , that they may have , by their said parents , and others foresaid ; do therefore , and for remeid thereof , statute and ordain , with advice and consent of the estates of parliament , that it shal not be leisom , nor in the power of any profest or known papist , to make any gratuitous deed , or disposition in prejudice of their appearand heirs , and the benefit they may have , by their succession to , and in favours of any other person , or persons whatsomever ; declaring , likeas , it is hereby declared , that no such disposition or deed , shal be of any force , but shal be judged to be gratuitous , unless that both the person granter , and the writer and witnesses in the deed , shal declare upon oath , and also qualify satisfyingly , before the judge ordinary of the bonds , that the foresaid disposition and deed was made and granted , for true , onerous , and adequat causes ; or otherways that the same shal be null and void , in manner above-statute . xxvii . act concerning the church . iuly . . our soveraign lord , being sensible of the hurt and mischief that may ensue , upon the exposing of the peoples minds to the influence of such ministers , who refuse to give the proofs required by law of their good affection to the government ; and withal desirous , that in the first place , all gentle and easie methods should be used to reclaim men to their duty , whereby the present establishment of this church , may be more happily preserved , the knowledge of the truth , with the practice of true piety more successfully advanced , and the peace and quiet of the kingdom more effectually settled : hath thought good to allow , and with advice and consent of the estates of parliament , hereby allowes to all ministers that were at the time of his majesties happy accession to the crown , and have since continued actual ministers in particular paroches , and no sentence either of deposition or deprivation past against them , and have not yet qualified themselves , conform to the act of parliament , intituled , act for taking the oath of allegiance and the assurance , a new and farther day , viz. the first of september in this present year , to come in and take the said oath of allegiance , and to subscribe the same with the assurance betwixt and the said day , and that either before the sheriff , or sheriff-deput of the shires , or the provost or baillies of the respective burghs , or any other inferior magistrat of the bounds where they live , or before any privy counsellor , with a certificat under the hand of the said inferior judges , or privy counsellor , to be reported to the lords of his majesties privy council , or their clerk , within the space of twenty one days after the date of the said certificat : declaring , that all such as shal duely come in and qualify themselves as said is , and shal behave themselves worthily in doctrine , life and conversation as becomes ministers of the gospel , shall have and enjoy his majesties protection , as to their respective kirks and benefices , or stipends , they always containing themselves within the limits of their pastoral charge within their said paroches , without offering to exerce any power , either of licensing , or ordaining ministers , or any part of government in general assemblies , synods , or presbytries , unless they be first duely assumed by a competent church judicatory ; in which case , it is hereby farder declared , that the foresaid ministers first qualifying themselves as above , may be assumed by the respective church judicatories to which they belong , and shall apply to partake with them in the present established government thereof : providing nevertheless , that as the said ministers who shal qualifie themselves as said is , are left free to apply or not , to the foresaid church judicatories : so the said church judicatores are hereby also declared free to assume , or not assume the foresaids ministers , though qualified as they shall see cause : with certification , that such of the said ministers , as shall not come in betwixt and the said day , are hereby , and by the force of this present act , ipso facto , depriof their respective kirks and stipends , and the same declared vacant without any further sentence . and his majesty being purposed , that his grace shall be still patent to all ; doeth further declare and statute , with consent foresaid , that at what time soever any minister , either settled in a church , or not , shall upon application , be judged fit to be assumed by any competent church judicatory as said is , the foresaid minister , upon a certificat thereof from the said judicatory , shall be admitted and allowed to qualify himself , by taking the oath of allegiance , and subscribing the same with the assurance in manner foresaid , albeit the said first of september be past and elapsed . and his majesty with consent foresaid , allows , declares , and statutes as above , any thing in the foresaid act , or in the other act of the same session of parliament , intituled , act for settling the quiet and peace of the church , notwithstanding . and his majesty with consent foresaid , for the greater encouragement of all ministers of the gospel , not only ratifies the act of parliament , forbidding all suspensions of special decreets and charges for ministers stipends , or the rents of their benefices , except on production of discarges , or upon consignation in manner therein provided : but further statutes and ordains , that there be no advocation , or sist of process granted of actions for the said stipends , or rents of benefices , when pursued before inferior judges , and that in the case of a decreet , there be neither suspension nor sist of execution granted , except on production of clear discharges or consignation as said is , and if any suspension be past , that the same be summerly discussed at the instance of the charger , without abiding the order and course of the roll : and that if the letters be found orderly proceeded , the suspender be also decerned at least in a fifth part more than the sums charged for , with what more the lords shall judge reasonable to be payed to the charger for his expense and damnage . and if any minister shall happen to pursue for his stipend by way of ordinary action before the lords , it is hereby farther ordained , that the same be summarly proceeded in , and discussed without abiding the course of the roll. and lastly , for a more ample declaration of an act made in this session of parliament , for encouraging of preachers at vacant churches be north forth , his majesty with consent foresaid , extends the same not only to preachers who are not settled in churches , but also to such ministers who though settled in churches , are yet sent from time to time from any presbytry or synod of this church , without their own presbytry , to supply the said vacancies , to the effect , that the said ministers settled , as well as the said preachers not settled , may equally have the benefit of the said act , in the terms thereof . xxviii . act for the additional and annexed excises . iuly . . the estates of parliament , taking to their consideration , that for the maintaining of the present standing forces , and the necessary defence of the kingdom , and coasts thereof , against the dangers that continue to threaten from the present war ; an additional fond , to the supplies already given , in this present session of parliament , is requisit : do therefore , for the said fond , and over and above the excise of two merks upon the boll of malt , and the excises on strong waters and brandy , and forreign beer annexed to the crown , heartily offer to his majesty , an additional excise of two pennies upon the pint of ale and beer , browen to be vended and sold ; as also , of two shilling upon each pint of aquavitae and strong waters , brown or made of malt , to be vended and sold within the kingdom : and likewise an additional excise of two shilling upon each pint of aquavitae and strong waters brown , not made of malt , excepting what is made of wine ; and that during the space of twelve moneths , commencing from the first day of september next . and his majesty , and estates of parliament , considering the advantages of a greater consumption , and better liquor arising , both to the heretors , brewers , and the whole leidges of the kingdom , by laying all excises upon the liquor , and not upon the malt ; as also the manifest conveniency that the said annexed excise formerly on the malt be converted upon the liquor , that both these excises may be uniformly raised and uplifted , with less charges and expenses , with which reasons , and the truth thereof , after mature deliberation , the estates of parliament are satisfied , and fully convinced , that his majesty getting an equivalent , the same are just and important , concerning both his majesties interest and the publick good and welfare of this kingdom . therefore his majesty , with consent of the said estates , hath dissolved , and hereby dissolves the foresaid annexed excise of two merks upon the boll of malt , from the crown and patrimony thereof . rescinding , likeas , his majesty hereby rescinds the act of parliament , giving , and annexing the foresaid excise of two merks upon the boll of malt to the crown , in so far as , it gives and annexes the same allannerly , and no farder : together with all tacks , contracts or commissions , made , or granted , of , or concerning the foresaid annexed excise , hereby dissolved and taken away ; declaring the said tacks , sub-tacks , contracts , and commissions to be fallen therewith in consequentiam , after the first day of september aftermentioned : in place of the which annexed excise , and as an equivalent , in lieu thereof , the estates of parliament , for the usefulness of this grant , to support the interest of the crown , do humbly and unanimously offer to his majesty , over and above the foresaid two pennies , and other additional excises abovementioned , an excise of three pennies more upon the pint of all ale and beer browen to be vended and sold as said is ; as also , of three shilling more upon ilk pint of aquaviae or strong waters , not made of malt browen and sold within this kingdom : six shilling upon ilk pint of forraign aquavitae , brandy , or strong waters ; and thirty shilling upon ilk barrel of imported forreign drinking beer ; and this excise hereby given in lieu of the foresaid annexed excise of two merks upon the boll of malt , and ordained to commence from the foresaid first day of september : his majesty , and the estates of parliament , by the force of this present act , have united and annexed , and unites and annexes the same to the crown of this realm , to remain therewith , as annexed property in all time coming . and his majesty , with advice and consent foresaid , do appoint the payment of the said two excises , unannexed and annexed , extending to five pennies upon the pint , so long as they shal concur , to be as follows , viz. for the first two moneths , upon the first day of november next to come , and thereafter quarterly , and proportionally , so long as they shal concur , and stand together ; and thereafter the foresaid new annexed excise to be payed at such terms as his majesty and successor : shal please to appoint ; and for making of the said two excises effectual for their respective endurances , his majesty , with consent foresaid , doth impose and ordain the foresaid two excises upon ale and beer , to be raised and uplifted from all brewers of the said liquors , brown and made to be vended and sold , as said is ; and the said excises upon aquavitae and strong waters to be raised and uplifted from all retailers thereof . and for the raising and inbringing of the said excise , his majesty , and the estates of parliament do hereby appoint and authorize the commissioners of the new supply , appointed in another act of this present session of parliament to be the commissioners of the excise , during the respective endurances of the said two excises , for the several shires , for the end foresaid , and the royal burghs to have the same number of commissioners , as was appointed by the fourteenth act of the parliament , impowering them fully for that effect , conform to the rules and orders formerly enacted for raising and inbringing the former annexed excise upon malt : as also to set down and cause observe such other rules as they shal judge necessary , agreeable always to the acts of parliament already made about the foresaid excise . and that the said excises on liquor may arise more equally , it is hereby statute , that during the concurrence of the said two excises , the lowest price of ale or drinking beer to be brewed and vented and sold for hereafter , shal in all burghs , where the burgh hath an particular imposition on malt or liquors , be twenty eight pennies for the pint , to be payed by the buyer to the ventner or tapster , and in all other places , both to burgh or landward , two shilling the pint , with certification that the ventner transgressing , by selling under the said rates , shal be fined by the said commissioners in the sum often pound scots at the instance of any other brewer or other complainer toties quoties , to be applyed by the saids commissioners for pious and publick uses , within their respective shires ; and further , be either put under sufficient surety to observe this rule for hereafter , or if he cannot find surety , discharged to brew in time coming , at the fight of the saids commissioners . and further , his majesty , with advice and consent foresaid , doth hereby declare and enact , that if any brewer in use to brew for sale and change , shal give over brewing after the date of this act , without an allowance in writing from the commissioners of excise , for good and seen causes , the said brewer shal not be permitted to brew for change , for the space of five years thereafter ; but shal be , and is hereby discharged and rendered uncapable to do the same ; as likewise , it is hereby statute and ordained , that no person whatsoever , who have not been in use to brew for the service of themselves and their family in time by past , shal presume to brew after the first day of september next to come , for their own and their families use , and if they contraveen , that they shal be lyable in payment of the value of what they shal brew . and his majesty , with consent foresaid , doth ordain the said commissioners to meet the first tuesday of september next , at the head burgh of every shire respective , and afterwards upon the first tuesday of ilk moneth where they shal appoint . and it is hereby specially provided , that if either collector or farmer , shal presume to raise or levie the said excise upon the malt , or otherwise than upon the liquor , he shal incurr the pain of an merks , toties quoties , to be decerned and exacted by the said commissioners , or by the lords of privy council , in case the saids commissioners shal overlook the same : as also , that the brewer assenting thereto , or complice therein , shal incurr the pain of fifty merks , and also amitt and lose the liberty of brewing , which fines are also hereby appointed to be applyed ut supra : and it is hereby declared , that if any tacks-man or collector , or other person shal exact any thing over and above his excise for the discharges thereof , or for the discharge of any other publick dues whatsoever , it shal be repute as oppression , and punished accordingly by the said commissioners , who are hereby impowered to proceed against the persons guilty . and his majesty , with advice and consent foresaid , do authorize and impower the lords of privy council to prescribe such other methods and orders as they shal judge necessary for making this act effectual . xxix . act for continuing the additional excise till march , with three months farder cess . iuly . . the estates of parliament taking to their further consideration , the present state of the kingdom , and publick exigencies thereof ; have thought fit to offer , and do hereby humbly & heartily offer to his majesty , that the additional excise of two pennies upon the pint of ale and bear , and other liquors imposed for an year , beginning the first of september next , by an act of this session of parliament , be continued from and after the expiring of the said year , until the first of march . and sicklike , the sum of two hundred and sixteen thousand pound , being three months cess upon the land-rent of this kingdom , payable at the term of lambmas years , and that over and above the six months cess already granted by another act of this session of parliament : and accordingly his majesty , with advice and consent of the said estates , statutes and ordains , that the said additional excise hereby continued as said is , and the said three months cess payable at lambmas , granted by this present act , shall be raised , uplisted and ingathered from the persons lyable in payment , in manner and for the ends appointed by the saids two respective acts above-mentioned . xxx . act for preservation of meadows , lands and pasturages lying adjacent to sand-hills . iuly . . our soveraign lord considering that many lands , meadows and pasturages lying on the sea-coasts , have been ruined and overspread in many places of this kingdom , by sand driven from adjacent sand-hills , the which has been mainly occasioned by the pulling up by the root of bent , juniper and broom-bushes , which did loose and break the surface and scroof of the saids hills ; and particularly considering that the barony of cowbin , and house and yards thereof , lying within the sheriffdom of elgin , is quite ruined and overspread with sand , the which was occasioned by the foresaid bad practice of pulling the bent and juniper . therefore his majesty , with advice and consent of the estates of parliament , for preventing of the like prejudices in time coming ; does strictly prohibite and discharge the pulling of bent , broom , or juniper off sand-hills for hereafter , either by the proprietors themselves , or any other whatsomever , the same being the natural fences of the adjacent countries to the saids hills ; certifying such as shall contraveen this act , they shall not only be lyable to the dammages that shall there-through inshew , but shall likeways be lyable in the sum of ten pounds of penalty ; the one half thereof to belong to the informer , and the other half to the judge within whose jurisdiction the said contravention shall be committed . xxxi . act for turning the tack of the pole , into a collection . iuly . . our soveraign lord considering , that albeit the pole granted by act of parliament , in the year , was set by the lords of thesaury and exchequer , to the lord ross , sir iohn cochran of ochiltrie , and others mentioned in the tack thereof , for the sum of fourty four thousand one hundred pounds sterling of tack-duty , as the tack in it self bears : yet the levying of money by pole being new , and the countrey and others concerned , not observing the rules and ordinances contained in the act of parliament thereanent , but through their failzying , incurring the quadruples appointed by the said act by way of penaltie ; the foresaids tacks-men were not able to pay the foresaid dutie , unless they had been allowed to exact the foresaid quadruples , which had visibly tended to the great oppression and disturbance of the whole kingdom . therefore , and in so singular a case , which his majesty is resolved shal never be drawn into example , his majesty with the advice and consent of the estates of parliament hath liberated and hereby liberates the foresaid tacks-men , and all others concerned therein , from the said tack and tack dutie , discharging and exonoring them of the samen , but with this condition and provision . likeas his majesty with advice foresaid , hereby statutes and provides , that the foresaid tacks-men shal make just compt and reckoning of all their intromissions with the said pole-money , sicklike as if they had only been collectors , and instead of the said tack had got a commission allanerly for that effect , with and under always the particular conditions following , first , that the said tacksmen be lyable for all the sub-collectors and managers imployed by them . secondly , that all their books be made patent , and examined . and that the tacks-men and their sub-collectors be examined upon oath , as to the verity thereof , and whether there be any thing omitted . thirdly , that in case it be found , there was any thing received from the countrey , not given up in the books : that the tacks-men , or their sub-collectors be lyable in twenty shilling , for each shilling so omitted . fourthly , that the rolls of the poleable persons taken up by the several justices of peace , magistrats of burghs , and others be produced to be compared with the books . fifthly , that a few comptrollers be appointed to examine books , and accompts , and adjust the whole matter , and that the leidges be invited & encouraged to comptroll the said accompts , and that they be patent at a publick office for a reasonable time to all the leidges for that end . sixthly , that the order of payment , viz. of the countrey in the first place , and then of the forces , as prescribed by act of parliament , be duely and strictly observed by the commission after-mentioned . seventhly , that upon accompts instructed and liquidat , in due manner , retention be allowed by the commission to those to whom the said accompts are due , in the terms of the act of parliament . eightly , that where any sub-tack hath been set by the said tacks-men , the sub-tacksmen have in their option , either to pay the sub-tack-duty , or make compt , reckoning and payment of their intromission , as sub-collectors . ninthly , that no sallaries be allowed , or given to the said tacks-men , or their sub-tacks-men for their collecting . and to the ef-fect , the said compt and reckoning may proceed ; his majesty with advice and consent foresaid ; hereby nominats and appoints the duke of queensberry , the earls of linlithgow and levin , sir iohn lauder of hattoun , the laird of livingstoun , the laird of torwoodlie , sir william hamilton , sir archibald mure , and william menzies commissioners , three of every state , chosen by the parliament , for that effect , whereof any five to be a quorum , to meet at edinburgh the first lawful day after the riseing of this session of parliament , and thereafter at such days as the said commission shall appoint . likeas one of the commissioners of his majesties theasury is allowed to be present , with right to vote , but so as his presence shall not be necessary to make up the foresaid quorum , with power to the said commissioners to take in the accompts of the said tacks-men their intromission , as if they had been collectors , and to make them accompt for their collection , in manner , and under the conditions above set down ; and to determine all differences betwixt the said tacks-men and the countrey , and the officers , and souldiers , anent the premisses : as also with power to the saids commissioners to do every thing necessary , for inbringing of what , is yet resting unpayed of the said pole by the countrey , and for making the same effectual ; and also to decide , and finally determine all questions , that may arise concerning the preferrence of the officers of the army interested , or their being brought in equality to get their shares of payment out of the subject of the said pole , as likeways with power to them , to allow , or not to allow expenses for inbringing the said pole to the said tacksmen , and their subtacksmen now turned to collectors , and sub-collectors as they shal see cause : and generally to do all other things anent the premisses , that they may bring the foresaid tacksmen their intromission and collection to a clear state and ballance , and also for in-gathering what shal be found resting of the said pole-money , either in the hands of the said tacksmen , or in the hands of any other person lyable therein , and cause pay in the same to his majesties general-receiver of the crown rents , providing that the said commissioners use the same and no other method or diligence for ingathering than what is prescribed for in-gathering of the new pole : the quadruples in the act anent the pole being hereby expresly discharged , and farder , with power to apply the whole neat product thereof by precepts on the said general-receiver , conform to the destination contained in the act of parliament , and in the order , and under the certification therein specified : and it is hereby farder declared , that for what shal be still found resting by the said tacks-men , after just compt and reckoning , their cautioners for the foresaid tack-dutie shal be lyable therefore , notwithstanding that the foresaid tack be hereby disolved and turned to a commission or collection as said is ; and it is farder hereby provided that the commissioners above-named shal be , and are hereby appointed to be , commissioners for calling for , examining , and concluding the accompts of the three months cess , viz. and of the hearth-money , imposed in the year , with power to them to call all collectors , intromettors , and other persons concerned , in so far as they have not compted to , and got discharges from the lords of thesaurie , and make them compt , reckon , and pay as accords ; and farder to take such methods as they shal think fit , to uplift and bring in the rests of the said hearth-money yet resting by the countrey , according to the orders and proclamations already given and emitted in that matter , and to appoint collectors for that end , or farm the same as they shal think fit , and generally to do all other things necessary , for the full and final clearing of the said three months cess and heart-money ; and farder the said commissioners are hereby impowered to put the whole of the said pole-money hereby ordered to be compted for , to a roup , and assign , and ajudge the same to the highest offerer , with this provision that it shal not be rouped for less than thirty thousand pound sterling , and that the said highest offerer have the , whole powers hereby given to the said commission for in-gathering thereof , and this power is also extended to the rouping of the rests of the said hearth-money as they shal see cause . and lastly it is hereby declared , that if any of the saids commissioners shal happen to depart this life , his majestie shal have the naming and appointing of one in his place out of the same state to whom the person deceasand belonged . xxxii . act for encouraging the exportation of victual . iuly . . his majesty and estates of parliament considering , that the grains of all sorts , are the greatest product and commodity of this nation ; and considering how necessary it is for the promoving of tilladge , and improvement of trade , to the best advantage of the kingdom , that an effectual encouragment be granted for exportation of corns and victual furth thereof . therefore his majesty , out of his royal bounty , with consent of the estates of parliament , statute and ordain , that all sorts of grains exported out of the kingdom after martinmas , shall be free of any dues formerly payable for exportation ; and that for encouraging export after the said term , there shall be given out of the customs to the exporter , upon his oath of verity , of the number of the bolls exported , subscribed with his hand , and attested by the collector of the next adjacent custom-house , eight merks for ilk chalder of grain , that shall be exported by sea or land , when they shall not exceed the prices following , viz. when wheat is at or under twelve pound the boll ; bear , barley , and malt , at or under eight pound per boll ; pease , oats , and meal , at or under six pounds per boll ; all the saids grains being of linlithgow measure . with this provision always , that the said exportation shall be by scots men , or in scots ships ; and that the master and three fourth parts of the seamen of the said ships , shall be scots men : as also , with this provision , that when the grains exceed the foresaids rates , the lords of his majesties secret council may discharge the exportation of victual of all sorts , ay and till the grains fall to the prices foresaid . xxxiii . act for the levies . iuly . . the estates of parliament considering how necessary it is , that during this present war , which so much concerns the defence and security of the protestant religion , and of his majesties kingdoms , certain rules and orders should be laid down for recruits and levies , as they shall be found needful , whereby both the kingdom may be delivered from the frequent disorders and oppressions of pulling away poor men from their wives and children , that cannot subsist without their handy-labour , and the engaging and seising of other unfit men , no ways proper for the service , which hitherto hath been found a most sensible grievance , and whereby also his majesties service , for the maintaining and carrying on of the said war , may be more effectually promoted : and the said estates taking likeways into their consideration , that all heretors , and the superior sort of his majesties leidges , do really contribute to the foresaid war , by their paying of supplies , pole-money and excise , and other publick burdens ; whereby it seems most reasonable , that the inferior sort , that contribute little or nothing , specially such who are young men , without wives or children , and do earn their living by dayly wages , or termly-hire for their handy work , and who by the laws of the land may be compelled to serve , his majesties other good subjects should be made lyable to contribute their service for a certain space in the foresaid war , which is manifestly most necessary for the defence and security of themselves and the whole kingdom , beside the other advantages of profit and honour that thereby may accrew to them . therefore his majesty , with advice and consent of the estates of parliament , statutes and ordains , that until the next session of this parliament , and for the service of the present war , either at home or abroad , there shall be furnished to his majesty , the number of one thousand men yearly , when his majesty shall require them , to be proportioned and levied , conform to the rules and proportions contained in the act , intituled , an humble tender to his sacred majesty of the duty and loyalty of his antient kingdom of scotland , as to the twenty thousand foot therein-mentioned ; which thousand bodies of men , shall be furnished and levied , without any charge or burden of money on the country whatsomever , in this manner , viz. that the commissioners of supply for the respective bounds where the said proportions shall fall , first design , and cause be given , the idle , loose and vagabond persons , lyable by former acts of parliament , to be seised by sheriffs , and who have not wife and children , to make up the foresaid number ; and in the next plate , shall cause all the young feasible men of the bounds , not having wife and children , and who are not menial or domestick servants to any heretor , but earn their living by dayly wages , or by termly hire payed them by other masters for their handy-labour ; to meet at certain days and places , and there by lot , and throwing of the dyce , or otherways as they shall think fit , determine which of them shall go furth to serve as souldiers , with this provision , that the foresaid persons being all first listed by the said commissioners , and appointed to meet as said is , if any of them shall be absent , any heretor to be appointed by the said commissioners , shall throw for him , and if the lot shall fall on that person absent , or if he shall be otherways designed to be put furth by the said commissioners , he shall be lyable in all time thereafter as a deserter , sicklike as if he had been present ; and with this encouragement to the whole foresaid persons , to be put furth in manner foresaid , that they shall have twenty pounds scots payed them in ready money , by the officer who receives them , at the sight of one of the said commissioners ; and in the next place , that their being put furth and engaged as said is , shall not oblige them longer to be and continue souldiers , then for the space of three years , and the first of november after the said years , from the time of their said engagment , at which time they shall have an authentick free pass , unless they subscribe a new consent to continue longer in the service . and the further execution of this act , that the foresaid levies and recruits may be effectually raised in the most easie manner , is referred and recommended to the lords of his majesties privy council , who are hereby thereto fully impowered , during the continuing of this war , and no longer . and after so just a condescendance for facilitating of levies and recruits , it is hereby statute and ordained , that no officer , either at home , or from abroad , offer to take on or press any free leidge to be a souldier , unless the man be ta●en on by agreement , owned by him in presence of the judge of the bounds ; and if any officer shall contraveen this order , and press or compel any man , contrait to the rule hereby established , that it be reckoned oppression , and the transgressor punished by the fine of a months pay , and farder by imprisonment , or breaking and casheiring , as the lords of council shall think fit . and it is farder hereby statute and ordained that all officers exacting lodging , coal and candle gratis , for themselves , their wives or children , shall loss and tyne their commission ; and that all souldiers exacting lodging , coal and candle gratis , for their wives and children , shall be lyable for the parties dammage , to be payed by their commanding officers , at the sight and appointment of any magistrat within burgh , or other judges to landward ; certifying the officer failieing herein , that he shall be lyable in three months pay , and farder punished as the lords of council shall appoint ; which fines are also to be applyed for reparation of the parties in the first place , and the superplus as the council shall think fit . xxxiv . act for additional imposition upon forraign commodities imported . iuly . . the estates of parliament , considering the great concessions granted by his majesty in this present session of parliament , in favours of the natural product of this kingdom , by the encouragment given for the exporting of corns , and the many priviledges allowed for the improvement of trade and manufactories , and that it is reasonable , there should be such additional duties and customs laid upon forraign imported commodities , in requital for his majesties gracious favour , do with all humble duty and thankfulness , offer to his majesty the additional duties upon the forraign commodities after-mentioned , and that by and attour what they were formerly lyable unto by acts of parliament preceeding the date hereof , as by the following table ,   lib. sh. d. imprimis , upon all wine imported from france of new-duty which with the lib. scots formerly imposed by the privy council upon the account of the sumptuary act , makes in all per tunn item , spanish wine from spain , the imposition formerly imposed by the council , is hereby ratified , which is per tunn . item , on brandy , the former duty of twenty pound sterling , being ordinarly reduced by the lords of thesaury and farmers to twelve pound sterling ; there is added of new-duty per tunn , by and attour the said lib. item , upon mum-bear , over and above the old duty , there is hereby added of new-duty per barrel item , on tobacco in leaf , not from the plantations of new duty per pound item , on tobacco in roll not from the plantations , of new-duty per pound item , on all french wines imported from holland , or any where else not of the growth of the place from whence it is exported , by and attour the above-written duty , there is added of new-duty per tunn item , on all spanish wine from any place except spain of new-duty per tunn . item , on raisins and currens from any place not of the growth from whence they are exported per hundred weight , of new-duty . item , on figgs imported after the same manner per weight of new-duty item , on sugar in loaf imported , of new-duty per weight item , on soap imported , of new-duty per barrel . item , on all sorts of wrought silks , silk-plushes , stockings , of new-duty per pound weight item , on all sorts of silks wrought of gold and silver , per pound weight of new-duty item , on all silver and gold fringes , silver and gold laces , gallouns and embroideries imported , per pound weight of new-duty item , on all forraign laces and points imported , of new-dutty ten per cent value item , on all forraign woollen cloath imported , of new-duty per eln item , on all forraign sarges and worsted-stuffs imported , of new-duty per eln item , on all forraign flannels , fingrums , of new-duty per eln item , on all linen-cloath imported from forraign countries , of new-duty per whole piece at elns item , on the half-piece of forraign imported linen-cloath of new-duty item , on all silesia-linnen , of new-duty per piece being elns , item , on all threed imported , of new-duty five per cent value which duties and customs above specified , our soveraign lord with advice and consent of the estates of parliament , statute and ordain to be payed by all merchants and other importers of the said forraign commodities , in the same manner as the other duties to which they were formerly lyable ; and ordains all farmers , collectors , surveyers and others , to in-gather the same , and that after the same manner they do his majesties other duties upon forraign imported commodities , and that from and after the term of martinmass years : and hereby discharges the said collectors , farmers , surveyers , and other in-bringers of his majesties customs to transact , abate or allow of any defalcation of the additional duties above-specified , under the pain of deprivation of their offices , and losing the benefite of their tacks . xxxv . act anent burying in scots linen . iuly . . our soveraign lord , with advice and consent of the estates of parliament , for the better improvement of the manufactory of linen within the kingdom , and restraining the import of all forraign linen , doth hereby ratify and approve the sixteenth act of the parliament intituled , act for burying in scots linen , in the hail heads and articles , thereof ; ordaining the same to be put to strict execution in all points , with this addition , that none presume to cause bury any in scots linen , in value above twenty shilling scots per ell , under the same pains set down in the foresaid act against burying in forraign linen : and for the better discovery of the said transgression , and execution of the foresaid act , and the addition hereby made to it , his majesty , with consent foresaid , statutes and ordains , that the nearest elder , or deacon of the parish , with one neighbour or two , be called by the persons concerned , and present to the putting of the dead corps in the coffin , that they may see the same done , and that the foresaid act , with this present addition is observed , and subscribe the certificat , mentioned in the foresaid act , and that whatever relation , or other friends of the defunct present , and having the charge of the burying , shal either fail in observing the foresaid act , with this addition , or to call the elder or deacon , with such neighbours as may be witnesses , or to send and give in the certificat , appointed by the said act , he or they shal be holden as transgressours , and lyable in the pains thereof ; which pains are also hereby intirely applyed , and given to the poor of the parish : and any elder or deacon of the parish is impowered to pursue for the same , for their use , nor shal any pursuit for the said fines be advocat from the inferiour judge competent , nor any sist of process given , nor shal any decreet therefore be suspended , but upon discharge or consignation allanerly . and it is further hereby statute , that it shal not be leisom to any person , to make or sew any sort of dead linen , contrair to the foresaid act , and this present addition , under the pain of fourty merks toties quoties , for the use of the poor , as said is . xxxvi . act anent the skinners . iuly . . our soveraign lord the kings majesty , with advice and consent of the estates of parliament , in pursuance of the many good acts made for the setting up , and maintaining of manufactories , and particularly , of the act , intituled act for erecting of manufactories ; and for the greater incouragement of the skinners of this kingdom , towards the improvement of the native commodities of wild-skins and lamb skins , and the art of that craft , do hereby discharge all and every person whatsomever , native or stranger , to export out of this kingdom any wild-skins , such as wild-hyds , dae and rae , roe and roe-buck , and kid , with the hair upon them , until they be made in work , or dressed leather , to the good of the kingdom . as also , his majesty , with advice and consent foresaid , discharges all and every person , native or stranger , to import any forraign made gloves , of whatsomever sort , certifying such as shal do in the contrair , either by export or import , as said is , that they shal not only forefault the foresaids goods , exported or imported , or the just value thereof , the one half to his majesty , and the other half to the informer , who shal prosecute the same before his majesties exchequer , but also be furder lyable to such pecunial fines , or other punishments , as the lords of his majesties exchequer shal think fit to inflict : declaring that this act shal commence and take effect after the first day of august next to come ; and impowering the saids skinners , and any merchands , or any others concerned with concurse of a magistrat , to search for , and make seizure of the foresaid goods hereby prohibited to be exported or imported . for the more effectual execution of the premises , and for the better improvement of the said skins , our soveraign lord , hereby ratifies and approves the act made be the convention of burrows , anent the sufficiency of skins , and ordains the magistrats of all burghs to put the said act to due execution in all points . and lastly , it is hereby declaired , that the foresaid act of parliament , for erecting of manufactories , and any allowance that may be therein given , for the manufactoring of the saids skins , shal be but prejudice to the rights and priviledges of the craft and incorporation of skinners , in all , or any of the burghs of this kingdom . xxxvii . act anent the iusticiary of the highlands . iuly . . our soveraign lord considering , that there was an act of parliament , made in the year , for the justiciary in the highlands ; declaring , that his majesty , by vertue of his prerogative royal , might grant commissions of justiciary for the said bounds , with all power , necessary and usual : excepting thence , from the bounds lying within the heretable right of justiciary general , pertaining to the earl of argile , or any other person , providing nevertheless that the foresaids persons , whose bounds were excepted , should for the space of two years , be obliged to grant commissions to the same persons , whom it should please his majesty to commissionat for their saids bounds and lands , which two years being now near expired , and it being necessary that the foresaids commissions , after their expiration should be renewed : therefore , his majesty , with advice and consent foresaid , does hereby prorogate the foresaid provision , to the effect , and in the terms aftermentioned , viz. that when the commissions are granted by his majesty , for the necessary repressing of the depredations and robberies , so frequently committed in the highlands , for the saids bounds not above excepted , the foresaids persons having right to the said heretable justiciaries general , shal grant ample commissions for their respective bounds at the same time , and to the same persons ( at least to so many of them as are willing to act , by vertue of the saids justiciaries commissions ) to the effect the saids commissioners , acting unanimously , within any part of the whole foresaid bounds , the saids crimes may be the more effectually punished and restrained , and that these commissions may , and shal be granted , as said is , for the space of three years ; which is to begin after the present commission granted by his majesty is expired : which commissions shal continue all powers necessary and usual in commissions of justiciary , without prejudice always to the whole foresaid persons , and lords of regality , and all others of their several respective rights and jurisdictions , and also reserving the right of prevention , and the right of casualities and escheats , in manner provided in the said act. xxxviii . act concerning the dividing of commonties . iuly . . our soveraign lord , with advice and consent of the estates of parliament , for preventing the discords that arise about commonties , and for the more easie and expedit deciding thereof , in time coming , statuts and ordains , that all commonties , excepting the commonties belonging to the king and royal-burrows ; that is , all that belongs to his majesty in property , or royal-burrows in burgage , may be divided at the instance of any having interest , by summons raised against all persons concerned , before the lords of session● who are hereby impowered to discuss the relevancy , and to determine upon the rights and interests of all parties concerned , and to value and divide the same , according to the value of the rights and interests of the several parties concerned , and to grant commissions to sheriffs , stewarts , baillies of regality and their deputs , justices of peace , or others , for perambulating and taking all other necessary probation , which commissions shal be reported to the saids lords , and the said processes ultimatly determined by them . and where mosses shal happen to be in the said commonties , with power to the said lords , to divide the said mosses , amongst the several parties having interest therein , in manner foresaid ; or in case it be instructed to the said lords , that the said mosses cannot be conveniently divided , his majesty , with consent foresaid , statuts and declares , that the said mosses shal remain common , with free ish and entry thereto , whether divided or not , declaring also , that the interest of the heretors , having right in the said commonties , shal be estimat according to the valuation of their respective lands or properties , and which divisions are appointed to be made , of that part of the commonty that is next adjacent to each heretors property . xxxix . act discharging the venting of rum. iuly . . our soveraign lord considering , that the brandy commonly called rum made of molossus , does hinder the consumpt of strong waters made of malt , which is the native product of this kingdom : as also , that the said rum is rather a drug than liquor , and highly prejudicial to the health of all who drink it . therefore , his majesty with advice and consent of the estates of parliament , prohibits and discharges the making of rum , except allenarly for export : certifying the contraveeners , that they shal lose and amit their priviledges granted to them as manufactories , and be otherways punished as the lords of privy council think fit . xl. act anent letters passing the signet . iuly . . our soveraign lord with advice and consent of the estates of parliament , for reviving and preserving the good order that ought to be kept in the passing of writs under the signet , statutes and ordains , that all writs passing under the signet , called the signet of the lords of session , be subscribed by a writer as clerk to the said signet : excepting allanerly herefrom , letters of diligence in processes before the session , and letters of citation before the parliament , which are to be subscribed by the clerks of session . and his majesty with advice foresaid , prohibits the keeper of the said signet , to affix the same to any letters not subscribed as above , any custom or practice in the contrary notwithstanding , and that as he will be answerable upon his peril . xli . act anent executry and moveables . iuly . . our soveraign lord considering , that the law is defective , as to the affecting with legal diligence , the moveable estate which pertained to a defunct , either for his own , or his nearest of kins debt , in such manner as a defuncts heretage , may be affected by charging to enter heir in the known manner : doth therefore , with advice and consent of the estates of parliament , statute and ordain , that in the case of a moveable estate left by a defunct , and falling to his nearest of kin , who lyes out , and doth not confirm , the creditors of the nearest of kin , may either require the procurator-fiscal to confirm and assign to them , under the peril and pain of his being lyable for the debt , if he refuse ; or they may obtain themselves decerned executors dative to the defunct , as if they were creditors to him : with this provision always , that the creditors of the defunct , doing diligence to affect the said moveable estate within year and day of their debitors decease , shall always be preferred to the diligence of the said nearest of kin. and it is further declared , that in the case of any depending cause or claim against a defunct the time of his decease , it shall be leisum to the pursuer of the said cause or claim , to charge the defuncts nearest of kin to confirm executor to him within twenty days after the charge given , which charge so execute , shall be a passive title against the person charged , as if he were a vitious intromettor , unless he renunce , and then the charger may proceed to have his debt constitute , and the haereditas iacens of moveables declared lyable by a decreet cognitionis causa , upon the obtaining whereof , he may be decerned executor dative to the defunct , and so affect his moveables in the common form. xlii . act allowing the administrators of the common good of burrows , to adventure their stocks , or any part thereof , in the company of forraign trade . iuly . . our soveraign lord with advice and consent of the estates of parliament , for the encouragement of the undertakers for forraign trade , conform to an act made in their favours in this present session of parliament , intituled , act for a company tradeing to affrica and the indies , doeth hereby statute and declare , that it shall be leisum to the magistrats and others , the administrators of the common good of burghs ; as also , to the deacon , masters , and other administrators whatsoever of any incorporation , or body , or company incorporat , or collegiat within this kingdom , to adventure and put in money belonging to their respective administrations , for a share and part to be purchased to the saids burghs and incorporations in the said company mentioned in the said act , bearing the name of the company of scotland tradeing to affrica and the indies , in the manner and in the terms provided within the said act , and that their putting in the money of the said burghs . incorporations , under their care and charge , and adventuring the same in the said company , shall be repute and held for a deed of lawful administration , and though the success and event thereof , should happen not to be prosperous , yet it shall never be construed to be a deed of lesion against the said administrators , but their acting in this behalf , is hereby declared to be lawful and warrantable , for the security of the foresaid persons in all events . xliii . act anent the poor . iuly . . our soveraign lord with advice and consent of the estates of parliament , doeth hereby ratifie , approve , and revive all acts of parliament , and acts and proclamations of council , for maintaining of the poor , and repressing of beggers , and ordains them to be put to vigorous execution in all points . and further , impowers the lords of his majesties privy council , to take the most effectual course to make the said acts and proclamation effectual , conform to the true design thereof . xliv . act salvo jure cujuslibet . iuly . . our soveraign lord considering , that there are several acts and others past and made in this session of parliament , in favours of particular persons , without calling or hearing of such as may be thereby concerned and prejudged : therefore his majesty , with advice and consent of the estates of parliament , statutes and ordains , that all such particular acts and others past in manner foresaid , shall not prejudge say third party , of their lawful rights , nor of their actions and defences competent thereupon , before the making of the said particular acts ; and the lords of session , and all other judges within this kingdom , shall be obliged to judge betwixt parties , according to their several rights standing in their persons , before the making of the said acts ; all which are hereby expounded and declared to have been made salvo iure cujuslibet . xlv . act of adjournment . iuly . . the kings majesty declares this parliament currant , and adjourns the same to the seventh day of november , next to come ; ordaining all members of parliament , noblemen , commissioners from shires and burghs , and all others having interest , to attend at edinburgh that day , at ten a clock ; and that there be no new elections in shires or burghs , except upon the death of any of the present commissioners . collected and extracted from the registers and records of parliament , by tarbat , cls. registri . a table of the printed acts. page act for a solemn fast. act regulating citations before the parliament . act adjourning the summer-session till the first of iuly . act anent the justice-court . act anent principals and cautioners . act regulating the sale and payment of bankrupts estates . act for six months supply upon the land-rent . act for a company tradeing to affrica and the indies . act adjourning the session till the first day of november . act for pole-money . ibid. act against blasphemy . act against irregular baptisms and marriages . act against prophaneness . act for restraining the prophanation of the lords days , by keeping weekly mercats on munday and saturnday . act for encouragment of preachers at vacant churches be-north forth act anent the ease of annualrents due by persons restored , and anent the creditors diligence to be used against them . act anent the mint . act anent the quorum of the commission of the teinds . act anent the duty on scots muslin . act anent the post-office . ibid. explanatory act anent the excise of brandy . act against intruding into churches without a legal call and admission thereto . act anent lands lying run-rig . act for obviating the frauds of appearand heirs . act anent the repetition of fines . act discharging popish persons to prejudge their protestant heirs in succession . act concerning the church . act for the additional and annexed excises . act for continuing the additional excise till march , with three months farder cess . act for preservation of meadows , lands and pasturages lying adjacent to sand-hills . act for turning the tack of the pole , into a collection . ibid. act for encouraging the exportation of victual . act for the levies . act for additional imposition upon forraign commodities imported . act anent burying in scots-linen . act anent the skinners . act anent the justiciary of the highlands . act concerning the dividing of commonties . act discharging the venting of rumm . act anent letters passing the signet . ibid. act anent executry and movables . act allowing the administrators of the common good of burrows , to adventure their stock , or any part thereof , in the company of forraign trade . act for reviving the acts of council made anent the poor . ibid. act salvo iure cujuslibet . act of adjournment . ibid. a table of the acts and ratifications past in the fifth session of his majesties first parliament , which are not here printed . his majesties commission to iohn marquis of tweeddule produced . the earl of annandale named president to the parliament . protestations several noblemen , for their precedencies in the rolls of parliament . several excuses offered for several absent members , and received . his majesties letter , appointing the lord yester to sit and vote in parliament , in place of the lord high thesaurer . his majesties letter to the parliament . address of condoleance for the death of the queen . act anent the election of the burgh of anstruther-easter . an address by the parliament to his majesties high commissioner , for transmitting their humble thanks to his majesty , for ordering an enquiry in the matter of glenco . act anent the lords of session who are upon committees . act in favours of evan m cgrigor . decreet sir william scot of hardin , against george m ckenzie of rosebaugh . warrand the shire of clackmannan for a new election . warrand for pursuing the earl of broadalbane . act for a general contribution for relief of some captives . recommendation in favours of mrs. martin . decreet sir iames ramsey and his lady , against the earl and countess of seaforth . act in favours of sir thomas livingston . decreet against mr. thomas craven , mr. andrew burnet , and mr. alexander thomson . decreet the earls of roxburgh , haddington , galloway , and others , against the earl of lothian . decreet in favours of mr. thomas skeen . protestation the earl of lothian , against the earl of roxburgh and others . act in favours of the kings colledge of old aberdeen . decreet the co-heirs of carnock , against nicolson of tilly-cultry . act in favours of the children of the first marriage of the earl of melfort . decreet of forefaulture , against the earls of midleton● melfort , and sir adam blair . act in favours of collonel hill. reference the city of edinburgh and earl of melvill . recommendation in favours of sir david carnegy of pittarow . recommendation in favours of the laird of lundy . act in favours of gilbert meuzies of pitfoddels . act in favours of mr. thomas craven , mr. andrew burnet , and mr. alexander thomson . act and remit the town of edinburgh and aeneas m cleod . act in favours of iames lyel . act in favours of sir alexander hope of kerse and others : remit process of forefaulture against the rebels in france , depending before the parliament to the justice court. order for apprehending lieutenant collonel hamilton . order anent mr. alexander barclay . act anent mr. bernard m ckenzie . order anent mr. gilbert ramsey . act in favours of the burgh of cullen . order for re printing of the act for the supply . address to his majesty anent the slaughter of the glencoe-men . protection in favours of the glencoe-men . recommendation in favours of the laird of grant. act for a manufactory of white-paper . order anent the clerks and collectors of supply . act and remit the laird of rothemay and abernethy of mayens . act in favours of the linen-manufactory . act in favours of the lord frazer . decreet sir iohn dempster of pitliver , against the earl and countess of seaforth . remit in favours of the lady dowager of beilhaven . remit clara and patricia ruthvens , and sir alexander hope of kers . recommendation in favours of alexander duff of braco . recommendation in favours of the synod of argile . recommendation in favours of the late bishop of argile . order and warrand anent iohn dick and the town of stirling . recommendation in favours of heriots hospital . act in favours of the laird of hoptoun . act and commission for reviseing the laws . act in favours of his majesties advocat . act in favours of the town of air. act in favours of the city of aberdeen . act in favours of the town of irwin . act in favours of the laird of colloden . act in favours of the earl marischals colledge of aberdeen . recommendation in favours of sir thomas stewart of kirkfield . recommendation in favours of sir colin campbel of abberuchil . recommendation in favours of duncan forbes of culloden . recommendation in favours of the children of the first and second marriage of sir andrew dick. recommendation in favours of elizabeth duncan and her son. recommendation in favours of mrs. gillespy . recommendation in favours of captain walter lockhart of kirktoun . remit mr. iames da●s and iames hay of carribber to the session . act and recommendation in favours of iames bain . remit in favours of iames crawfurd of montquhanny , sir thomas kennedy , and others . recommendation in favours of the laird of kilmaronock . remit in favours of the laird of glenkindy and sir adam blair . remit mr. alexander heggins and iohn callender . act in favours of george baylie of ierviswood . recommendation in favours of william boig . recommendation in favours of the laird of culbin . order the city of edinburgh and the laird of comistoun . act in favours of the laird of langtoun . act in favours of william beatty . recommendation in favours of the burgh of fortross . recommendation in favours of iohn spotswood . decreet in favours of mrs. lilias stewart . act in favours of iames curry late provost of edinburgh . act in favours of comb-makers . act in favours of alexander fearn . act in favours of william scot and iohn heislop . act anent the earl of broadalbane . recommendation in favours of the macers and keepers of the parliament house . act in favours of robert douglass . act in favours of iohn adeir and captain slezer . act in favours of whitefield heyter , and others . act in favours of the heirs of taylzie of mauldsly . act for erecting a publick bank. act in favours of the burgh of dysart . act in favours of the burgh of culross . acts for several fairs and weekly mercats . act and ratification in favours of sir iohn hall of dunglass . ratification in favours of the chyrurgions and chryurgion-apothecaries of edinburgh . protestation the town of edinburgh against the same . ratification in favours of the nine trades of dundee . protestation the walkers and litsters of dundee against the same . ratification in favours of the burgh of breichen . ratification in favours of the candlemakers of edinburgh . ratification in favours of the walkers and litsters of dundee . protestation the town and trades of dundee against the same . ratification in favours of alexander spittel of leuchit . ratification in favours of the piriwig-makers of edinburgh . ratification in favours of iames lindsay of dovehill . ratification in favours of the cowpers of glasgow . protestation the town of glasgow against the same . ratification in favours of william rai●ly of brunsfield . ratification in favours of the laird of rowallan . ratification in favours of sir william stewart of castle-milk . ratification in favours of the viscount of tarbat . protestation the city of edinburgh against the same . ratification in favours of sir iames falcon●r of ph●sdo . ratification in favours of william cunningham brother to gilbertfield , of the lands of kilbryde . ratification in favours of james turner . finis . these are allowing the two acts , past in parliament on the twenty second day of iuly , one thousand six hundred and ninety years , in favours of sir patrick home of polwarth , now lord polwarth , to be printed . tarbat , cls. registri . act rescinding the forefaulture of sir patrick home of polwarth . edinburgh , iuly . . our soveraign lord and lady the king and queens majesties , and the estates of parliament considering , that the meeting of the estates of this kingdom , in the claim of right , dated the eleventh of april , one thousand six hundred eighty and nine years , have declared , that the causing pursue and forefault persons upon weak or frivolous pretences , or upon lame and defective probation , is contrary to law ; and also , that all forefaultures are to be considered , and the parties laesed to be redressed : and having considered the process of forefaulture led and deduced before the three estates of parliament , upon the twenty second of may , one thousand six hundred eighty and five years , against sir patrick home of polwarth in absence , with the decreet and doom of forefaulture following thereupon , and that the pretences insisted upon in the said proces of forefaulture , against the said sir patrick home , viz. his meeting with the deceast mr. robert martine , and other persons at the places therein lybelled , and discoursing with them of the extream hazard that threatned the protestant religion , the laws and liberties of this kingdom ; in case iames then duke of york would succeed to the crown , and of the ways and methods then talked of in england , and such as might be taken in scotland for preventing the same , and for his exclusion from succession to the crown ; are weak and frivolous pretences , to infer the crime of treason ▪ as likewise , that the probation wa● lame & defective , seing it did confe●● of the depositions , and testimonies of persons , who a little before hade been accused of the same pretended crimes , and who , after submission made , and when their lives and fortunes were at the late kings mercy , had predetermined themselves by their confessions and depositions then emitted ; for albeit they were secured , as to their lives , when they deponed before the parliament , yet they having emitted their declarations , when they were under the fear and apprehension of being forefaulted themselves , and when they renewed their confessions before the parliament , they could make no alteration , unless they had declared themselves to be perjured , they having only adhered to the very same testimonies formerly emitted , by them except the earl of tarras , who depons of new , and not upon his declaration formerly emitted , but proves nothing against the said sir patrick home . and also considering , that there is nothing proven by the witnesses , in habit , as they were against the said sir patrick , of his being upon , or privy to any design or contrivance against the person and life of king charles the second , and that the testimonies do not concur and agree in any particular fact , which by the common law or custom could infer the crime of treason against the said sir patrick . and likeways having considered the act of adjournal of the justice court , of the date the day of one thousand six hundred eighty years , upon which the said sir patrick home was denounced fugitive , for not compearance ; and that there was no relaxation raised , until a few days before the dyet of compearance in parliament ; though neither he had the offer of an indemnity , nor was for the time in open rebellion , so that he had not tutus accessus , and that the saids pretended crimes , lybelled in the said act of adjournal , are the same contained in the foresaid sentence of forefaulture before the parliament . therefore , their majesties , with advice and consent of the estates of parliament , do hereby , by way of justice , rescind , retreit , cass , and annull , the foresaid decreet , and sentence of forefaulture , pronounced against the said sir patrick home , and all gifts of forefaulture , if any be granted , by the late king iames , of the said sir patrick his estate , or any part thereof , to any person or persons whatsomever : and the foresaid act of adjournal , with all that has followed , or may follow thereupon : and declares the said decreet and sentence of forefaulture , and act of adjournal to have been from the beginning , to be now , and in all time coming void , null , and of no avail , force , strength nor effect : and restores the said sir patrick home , his children and posterity against the same , in integrum ; and rehabilitating them to their blood-right , and benefit of succession , name and fame , sick-like , and as freely in all respects , as if the said decreet and doom of forfaulture had never been given , nor pronounced . rescinding hereby the act of annexation of the said sir patrick , his estate to the crown ; and dissolving the same therefrae . as also , their majesties , with consent foresaid , decerns and ordains , all the intrometters with the lands , rents , goods and gear , or other estate , moveable or immoveable , pertaining and belonging to the said sir patrick home , to be lyable for , and refound the famine to him , his heirs , executors or assigneys , and that letters may be direct for that effect , in form as effeirs ? and their majesties , and estates of parliament , statute and ordain , that this present act shal have full force , strength , and effect of a publick law , in favours of the said sir patrick home , and others aforesaid . and it is hereby declared , that this present act is , and shal be understood to be excepted from the act salvo iure to be past in this present parliament . act dissolving sir patrick home of polwarth his estate from the crown . iuly . . forasmuch as , by an act and sentence of this present parliament , the doom and sentence of forefaulture , pronounced in anno one thousand six hundred eighty and five , against sir patrick home of polwarth , is ex iustitia , reduced and rescinded : and that by an act of the sixteenth of iune , one thousand six hundred eighty and five , the estate and lands belonging to the said sir patrick home were formerly annexed to the crown ; which act of annexation is now also by the said act reductive in his favours , rescinded , and declared void : therefore , and for the said sir patrick his more full and effectual restitution , and without any derogation to the said act reductive , in his favours , but accumulating rights to rights , our soveraign lord and lady , the king and queens majesties , with advice and consent of the estates of parliament , have dissolved , and hereby dissolves from the crown and patrimony thereof , the lands and barrony of polwarth , the lands and barrony of grein-law and reid-path , with the right of patronages , and whole pertinents thereof ; and lands of with all other lands , rights and estate , pertaining to the said sir patrick home , and that in favours of the said sir patrick himself , that he may bruick and enjoy the same as if he himself had never been forefaulted , or as if the saids lands and estate had never been annexed . declaring that this present act shal have the strength and effect of a general law and act of parliament ; and shal be al 's valid and effectual to the said sir patrick , his heirs and successors , for their security of the whole premisses , as any other act of dissolution made and enacted at any time bygone , in favours of whatsomever person : and conform to all the conditions required by law , in acts of that nature . and farder , that this present act of dissolution , is , and shal be understood to be excepted from the act salvo iure , to be past in this present parliament . extracted furth of the records of parliament , by george viscount of tarbat , lord m cleod , and castlehaven , &c. clerk to the parliament , and to his majesties councils , registers and rolls . by the king. a proclamation for recalling of commissions at sea england and wales. sovereign ( - : charles ii) this text is an enriched version of the tcp digital transcription a of text r in the english short title catalog (thomason .f. [ ]). textual changes and metadata enrichments aim at making the text more computationally tractable, easier to read, and suitable for network-based collaborative curation by amateur and professional end users from many walks of life. the text has been tokenized and linguistically annotated with morphadorner. the annotation includes standard spellings that support the display of a text in a standardized format that preserves archaic forms ('loveth', 'seekest'). textual changes aim at restoring the text the author or stationer meant to publish. this text has not been fully proofread approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. earlyprint project evanston,il, notre dame, in, st. louis, mo a wing c thomason .f. [ ] estc r this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (thomason tracts ; : f [ ]) by the king. a proclamation for recalling of commissions at sea england and wales. sovereign ( - : charles ii) charles ii, king of england, - . sheet ([ ] p.) printed by john bill and christopher barker, printers to the kings most excellent majesty, london : . dated at end: given at our court at whitehal, the fifteenth of june, in the twelfth year of his majesties reign, . annotation on thomason copy: "june ." reproduction of the original in the british library. eng law of the sea -- england -- early works to . great britain -- history, naval -- th century -- early works to . great britain -- politics and government -- - -- early works to . a r (thomason .f. [ ]). civilwar no by the king. a proclamation for recalling of commissions at sea: england and wales. sovereign a this text has no known defects that were recorded as gap elements at the time of transcription. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion c r diev et mon droit honi soit qvi mal y pense royal blazon or coat of arms by the king . a proclamation for recalling of commissions at sea . charles r. whereas sundry commissions have , heretofore , been issued out , and granted , as well by the king's majesty , as by his royal brother the duke of york , lord high admiral of england , to divers of his majesties subjects and others , by sea , with authority and command , in hostile manner , to proceed against and prosecute his enemies . his majesty , by the blessing of almighty god , being happily restored unto his throne , out of his tender care and respect to the welfare of his loving subjects , conceaving that the authority by the said commissions granted , may , possibly be extended ( contrary to his purpose ) to the dammage and hurt of his true and faithful people , and to the great obstruction of the trade and commerce of his kingdoms and dominions ; for prevention whereof , he is graciously pleased to revoke , annul , and make void , and doth hereby , revoke , annul , and make void , all and every the said commissions , and all powers and authorities in them , or any of them contained , by his majesty , or the duke of york , before the first of may last granted , to any of his subjects or others , for maritime or sea-affairs , in manner as aforesaid , hereby willing and commanding them , and every of them , to forbear the further prosecution , using , or execution of the same commissions , or any thing therein expressed , upon pain of such punishment , as by the laws may , therefore , be inflicted upon them as pirates ; and his majesty doth farther will , require , and command all and every his subjects , who now are in the service of any foreign prince or state , by sea , or in sea-affairs , forthwith , upon notice hereof , to repair to his majesties service , at home , in his dominions . given at our court at whitehal , the fifteenth of june , in the twelfth year of his majesties reign , . london , printed by john bill and christopher barker , printers to the kings most excellent majesty , . a proclamation, for suppressing of tumults in edinburgh, and elsewhere. scotland. privy council. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). b wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. b ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) a proclamation, for suppressing of tumults in edinburgh, and elsewhere. scotland. privy council. scotland. sovereign ( - : james vii) sheet ([ ] p.) printed by the heir of andrew anderson, printer to his most sacred majesty, edinburgh : anno dom. . caption title. royal arms at head of text; initial letter. intentional blank spaces in text. dated: given under our signet at edinburgh, the thirteenth day of december, . and of our reign, the fourth year. signed: will. paterson, cls. sti. concilii. reproduction of the original in the national library of scotland. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng riots -- scotland -- edinburgh -- early works to . law enforcement -- scotland -- early works to . broadsides -- scotland -- th century. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - emma (leeson) huber sampled and proofread - spi global rekeyed and resubmitted - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion i r honi soit qui mal y pense royal blazon or coat of arms a proclamation , for surpressing of tumults in edinburgh , and elsewhere . james , by the grace of god , king of great-britain , france and ireland , defender of the faith ; to macers of our privy council , and messengers at arms , our sheriffs in that part , conjunctly and severally , specially constitute , greeting : forasmuch as there can nothing tend more to overturn the protestant religion , liberty and property of the kingdom in general , nor of every particular person , than the being exposed to the arbitrary insults of licentious tumults , who being guided only by blinded rage , are ready to make a prey of any whose estates , or persons can satisfie their revenge , or avarice ; therefore the lords of his majesties privy council considering the late execrable tumults , raised within this city , and the formidable effects thereof , not only within this city , but that it has spread it self over the countrey , have thought fit to discharge all tumultuary meetings within this city , or suburbs , under the highest pains that law can allow ; and as by former proclamations , so now again , command and impower the magistrats of this city to take all effectual courses for repressing these tumults , assuring them , that if they fail therein , they will transfer the judicatures to some other town , that will be more loyal and obedient to law , and that they will interpole with his majesty , that not only the town and magistrats shall be punished , but that all their deaconries shall be dissolved and their colledge closed up ; and that for the future , all who shall be found guilty , shall be excepted from acts of indemnity ; and lest strangers should ( under the presence of business ) come in to this city , to disturb the same , by the assistance of the saids tumults ; we do in a most special manner require and impower them , to take up lists of such as enter into the city , and to look exactly unto their behaviour , and to put them under caution , if they think fit : as also , to prevent tumults in other burghs , they command and require the magistrats to put the laws in execution , against all such as convocate themselves illegally , or offer to invade or rob privat houses , and they impower all sheriffs , baillies of regalities , baillies of bailȝiaries , or their deputs , to prevent and dissipat all such convocations within their respective jurisdictions , and to convocat all heretors and others , who are hereby ordered to assist them , to the effect foresaid , under all highest pain . and ordain these presents to be forthwith published at the mercat-cross of edinburgh , and other places needful , that none pretend ignorance . given under our signet at edinburgh , the thirteenth day of december , . and of our reign , the fourth year . per actum dominorum sti. concilii . wil. paterson , cls. sti. concilii . god save the king . edinburgh , printed by the heir of andrew anderson , printer to his most sacred majesty : anno dom. . nomo-lexikon, a law-dictionary interpreting such difficult and obscure words and terms as are found either in our common or statute, ancient or modern lawes : with references to the several statutes, records, registers, law-books, charters, ancient deeds, and manuscripts, wherein the words are used : and etymologies, where they properly occur / by thomas blount of the inner temple, esq. blount, thomas, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing b estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) nomo-lexikon, a law-dictionary interpreting such difficult and obscure words and terms as are found either in our common or statute, ancient or modern lawes : with references to the several statutes, records, registers, law-books, charters, ancient deeds, and manuscripts, wherein the words are used : and etymologies, where they properly occur / by thomas blount of the inner temple, esq. blount, thomas, - . [ ], [ ] p. printed by tho. newcomb, for john martin and henry herringman ..., in the savoy : . first two words of title transliterated from greek. errata at end. reproduction of original in law school library, harvard university. pages at end are wrinkled in the filmed copy. pages photographed from newberry library copy and inserted at the end. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- dictionaries. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - mona logarbo sampled and proofread - mona logarbo text and markup reviewed and edited - pfs batch review (qc) and xml conversion ΝΟΜΟ-ΛΕΞΙΚΟΝ : a law-dictionary . interpreting such difficult and obscure words and terms , as are found either in our common or statute , ancient or modern lawes . with references to the several statutes , records , registers , law-books , charters , ancient deeds , and manuscripts , wherein the words are used : and etymologies , where they properly occur . coke on littl. fol. . b. ad rectè docendum oportet primùm inquirere nomina ; quia rerum cognitio à nominibus rerum dependet . by thomas blovnt of the inner , temple , esq in the savoy : printed by tho. newcomb , for john martin and henry herringman , at the sign of the bell in s. pauls churchyard , and a little without temple-bar , and in the new exchange . . to the right honorable sir orlando bridgeman knight and baronet , lord keeper of the great seal of england ; sir john kelynge knight , lord cheif justice of his majesties court of kings bench , and sir john vaughan knight , lord cheif justice of his majesties court of common plea● . my lords , as it is certainly my bounden duty to offer , and submit these my timorous and bashful endeavors to your great judgments ; so it is my interest to implore the benignity of your auspicious patronage of them . for the publishing these papers , i had onely two motives : the first and principal to erect a small monument of that vast respect and deference , which i have for your lordships , who are not onely the oracles of our law , and grand exemplars of justice ; but the glory and ornament of that honorable society , whereof ( however unworthy ) i boast my self a member , and which at present justly claims the preheminence above the rest , by producing more persons , dignified with the judiciary scarlet robe , then the other three , and filling up , by due merit , the most eminent seats of judicature in the nation . the other , to gratifie an ambitious inclination of my own , of leaving behinde me somewhat ( how inconsiderable soever ) that may , in some measure , excuse me to posterity , from having been a truantly and useless member of that learned and active body . if your honors shall allow me , to have fulfil'd my duty in the one , and obtained my design in the other , i have the desired effect of my labors : nor hath my greatest ambition any thing higher to aym at , then that i may , with your lordships permission , subscribe my self my lords , your most humble and obedient servant tho. blount . inner temple , june . . preface . some will perhaps wonder , why i took so much pains to write this book ; and object , that we have two good ones of this kind extant ; cowels interpreter , and terms of the law , nay haply thrust in leighs phylological commentary , as a third : i answer , though it is not my design to raise the reputation of this work , by disvaluing those , yet it may be allowable modestly to declare their defects , that my undertaking this may not appear unnecessary . doctor cowel was certainly a learned man , and his enterprise very commendable , but his profession the civil law ; and , that he did not singly intend his interpreter for us , appears by his often expressing what each word signifies in the common law , to distinguish it from the civil ; in which learning he bestowes a considerable part of his book . he ingenuously says , his design is the advancement of knowledge , and to incite others to finish his model , and supply his defects , which in truth are not a few ; for , he directly mistakes the meaning of some words , and derivation of others , as ordel , mindbruch , brodehalpeny , furlong , avishering , thirdwith-hawanman , &c. he confounds realty with royalty , and commote with comorth , which are distinct words . in the word honor , he sayes , that in reading he has observ'd thus many honors in england , and sets down ; wherein , either his reading was short , or his observations defective ; for , i have collected above twice that number out of approved authors and records , in being when he wrote . he is sometimes too prolix in the derivation of a word , setting down several authors opinions , without categorically determining which is the true ; as in exchequer , withernam , herald , earle , justices of trailbaston , pawnage , purlieu , &c. and lastly , gives us divers bare words without explication , as cone & key , calendring , coggs , duch , lancegay , palingman , bread of treet , &c. which i have supply'd ; not but that i have lest some quaere's too but those in words of greater difficulty . the author of the law-terms was without doubt not less learned ; but , wrote so long since , that his very language and manner of expression was almost antiquated , till help'd by the late correction of it ; he has added to divers words several cases in law , relating thereto in general , not tending much to their explication ; which i have declin'd , lest the bulk should swell too big , and the principal design be wav'd : he omits the etymons for the most part , and is much more copious in the first part of the alphabet , then in the later , which argues , the author had not time , or perseverance to finish it . they are both much wanting in the number of words , especially the later ; for cowel glean'd many after the author of the law-terms had inn'd his harvest : yet , both have much useless and repealed law in them ; as in reference to tenures by knights-service and their appendi●●s , wardship , villenage , purveyance , star-chamber , knighthood , &c. for , thus sayes the learned author of the preface to roll's abridgment — as time , and experience , and use , and some acts of parliament have abridg'd some , and antiquided other titles , so they have substituted and enlarged others . cowel also , especially in the folio edition , ( besides the misalphabeting ) is extreamly misprinted ; yet the terms of the law will still deservedly retain an usefulness pro tanto , and particularly for the law-french , to instruct the young student therein . leigh affords not the least objection against my undertaking ; for , he is a commentator , not an expositor ; his title speaks it , though sometimes he acts a little in both capacities . having found , these , among other , as i judg'd , important defects in those authors , consider'd the usefulness of books of this nature , and reflected on these expressions of the * oracle of our law — here , as in many other places it appears , how necessary it is to know the signification of words . and again , that the explanation of ancient words , and the true sence of them is requisite to be understood , per verba notiora : i was encourag'd to bestow my endeavour herein . and , it will abate the wonder , that i , who inter doctos me non effero , should yet not onely assume the liberty in many places to correct those learned authors , but also make an additional collection of above a thousand words ; if it be consider'd , that they wanted those helps i have had , viz. that incomparable glossarium arohaiologicum of sir henry spelman ; the elaborate institutes of sir edward coke ; that excellent dictionarium saxonico-latino-anglicum of mr. somner ; the learned works of mr. william dugdale , mr. fabian philips , and others , publish'd since those authors wrote . my genius has also led me ( though sometimes diverted ) to this kind of search these thirty years , as my glossographia will in some measure witness ; for , whil'st my contemporaries studied the law it self , and gain'd riches ; i was hunting after the difficult and uncuth terms of it , and got nothing , but my own satisfaction . nor can i otherwise judge , but a no●o lexicon may be as necessary and useful in our law-common-wealth , ( even from the coif to the puny-clerk ) as a lexicon juridicum among the civilians , or lexicon-medicum with the physitians since i am by this time perswaded , that no law or science has more abstruse terms then ours . now , that i may in some measure prevent the readers suspition , that my abilities are not commensurate with so great an undertaking ; i 'le tell him freely , i have , in this meadow , made little hay with my own fork ; but , in the more common words have made use of cowel , lambert , crompton , west , terms of the law , skene , &c. yet seldom without corrections , contractions or additions ; in the supplementals , bracton , britton , fl●ta , spolman , camden , cake , our several reporters , and divers other authors have been my guides : and , in such words , wherein printed books afforded me no light , i have consulted records , char●ers , ancient manuscripts , and some of the best antiquaries of these times , from whom i received both encouragement and assistance . to many words i have added their etymologies , where i found them apposite , encouraged thereto by the opinion of a learned judge — etymologies , if they be rightly us'd , and drawn from the final cause , or from the effect , do not onely yield an argument of good consequence , but also afford much illustration and delight . i have briefly inserted all the old writs out of the registers , though many of them are worn out of use ; and have not omitted even the mechanick words , mentioned in our statutes ; since there may be use of such knowledge in pleadings : and lawyers ( as cowel well observes ) professing true philosophy , should not be ignorant of such , nor even of trees , from the cedar of lebanon to the hysop that springs out of the wall. though , to gratify the young student , i have inserted some words , which will seem very common to the more learned , yet i have rejected divers i found in cowel , as too mean , and indeed not at all deserving an explication ; such are groome , sluce , copie , revels , toile , vvedding , baubels , &c. and the names of our common drugs and spices , mentioned in the statute of jac. besides the general design of this dictionary in explaining the difficult law-terms both ancient and modern , i conceive the student may make a further use of it , as a repertory , or common-place ; since many statutes , law-books , charters and records are cited , or referr'd to in most words : for , i have heard , the learned lord keeper littleton made use of cowels interpreter for the like service . if i have sometimes committed a jeofaile , or hunted counter in any explication or etymology , in so large a field of words , and stor'd with such variety of game , it will be no wonder , and , i hope , will draw no censure upon me from the ingenuous : quis enim mortalium in argumento tam vario & immenso ; tam nodoso , rigido & caliginoso , alias non erret , alias non caecutiat ? besides , the learned spelman sometimes concludes a word with a fateor me ignorare , and even sir edward coke has err'd ( pardon the boldness of that word ) at least in etymons , as in atin , hotchpot , panel , heriot , domicellus , &c. therefore , if i leave some words with a quaere , or a fortasse , to be resolved , or corrected by the more learned ; it is but what cowel frequently , and spelman has sometimes done . facile est recolere , laboriosum condere . advertisements . to the end the reader may readily know the series of our kings from the conquest , and , for the most part , in what kings reign a charter without date is made , by his title ; and again , in what year of our lord every king reigned , and how long , i have prefix'd a necessary table to that purpose . such also of the saxon characters , as are different from the common ; since , through the want of some knowledge in that language , authors have committed many errors ; the word gersuma being by some miswritten gressume , by others grossome , and by some gressame . grithbreche occurs in some , gethbreche , grithbrich , greatbreach , grichbreach , and greachbreach : so for ƿere & ƿite ( were & wite ) we meet with pere & pite , and the like of divers other words . before the conquest charters were usually dated ; sometimes by olympiads , sometimes by calends , nones & ides , but most frequently by the year of our lord. after the conquest , dates were commonly omitted , especially in the deeds of subjects , till king edward the second , and edward the thirds dayes , and thenceforth the year of the kings reign , or that of our lord was constantly inserted : so that deeds , made since the conquest , and found without date , may be presumed to be in time before those kings reigns . witnesses names were added in the body of the deed , and with the same hand the deed was written , till and in king henry the eighths time ; but now changed into endorsements , where the witnesses subscribe their own names . additions to persons names in publick writings and pleadings were very rarely used till the statute of hen. . in my progress , where any ancient charters or records were judged to be extraordinary , either for matter or form , i have transcribed them at large , but the generality are abridg'd , to avoid prolixity . one onely seal of king edward the fourth , as he was earl of march , i was induced , as well for the rarity , as preservation of it , to exhibit in sculpture , though without the limits of my province . i need not apologize the latin , where it occurs , since both in ancient , as well as the modern times , our law-pleadings , charters and records were alwayes expressed forensi latinitate , which is acknowlodged not to be of the purer sort ; and ae dipthongs of old seldome used , though i have mostly supply'd them . to some words i have added the variae lectiones i met with , as churchesset , flemenefyrinthe , lairwite , scavage , &c. to others the etymons , which sometimes proved the more difficult , in that divers of our law-terms , of birth since the conquest , are voces hybridae , mungrel words ; one part saxon , the other french or latin , not without a mixture sometimes of british and other languages . the records and charters i cite were for the most part copied from the originals ; some from printed books of unquestionable authority ; others , from the collections and manuscripts of faithful and industrious lovers of antiquity . the saxon characters which differ from the vulgar . d f g h m r s t ƿ þ d f g h m r s t w th a titular and chronological table of our kings and queens from the conquest , to the present , . kings names and titles . began their reigns reigned ye . mo da. since they reigned . wilhelmus rex ; wilhelmus rex anglorum ; & wilhelmus rex anglorum , princeps normannorum atque cynomannensium . oct. sept. willielmus rex anglorum , & willielmus dei gratia ( & nutu dei ) rex anglorum sept. aug. henric is rex anglorum ; henricus dei gratia rex anglorum & henricus gratia dei rex anglorum & princeps normannorum aug. dec. stephanus rex anglorum , & stephanus dei gratia rex anglorum . dec. oct. henricus rex angliae , dux normaniae & aquitaniae & comes andegaviae oct. july ricardus rex angliae , dux normaniae & aquitaniae & comes andegaviae july april johannes , dei gratia , rex angliae , dominus hiberniae , dux normanniae , aquitaniae & comes andegaviae april oct. henricus , dei gratia rex angliae , dominus hiberniae , dux normanniae , aquitaniae & comes andegaviae . anno regni , he styl'd himself , henricus dei gratia , rex angliae , dominus hiberniae & dux aquitaniae . oct. nov. edwardus dei gratia , rex angliae , dominus hiberniae & dux aquitaniae . in records sometimes named edward of westminster . nov. july edwardus dei gratia , rex angliae , dominus hiberniae & dux aquitaniae . and , regni . added comes pontivi & monstroill . pat. ed. . par. m. . stiled also edw. of carnarvan july jan. edwardus dei gratia , rex angliae , dominus hiberniae & dux aquitaniae . anno regni he omitted dux aquitaniae . he was also called edward of windsor , and was the first that used post conquestum in his title . jan. june ricardus dei gratia , rex angliae & franciae & dominus hiberniae . june sept. henricus dei gratia , rex angliae & franciae & dominus hiberniae . sept. mar. henricus dei gratia , rex angliae & franciae & dominus hiberniae . et anno regni , hen. dei gratia , rex angliae , haeres & regens franciae & dominus hiberniae . mar. aug. henricus dei gratia , rex angliae & franciae , & dominus hiberniae . aug. march edwardus dei gratia , rex angliae & franciae , & dominus hiberniae . march april edwardus dei gratia , rex angliae & franciae , & dominus hiberniae . april june ricardus dei gratia , rex angliae & franciae , & dominus hiberniae . june aug. henricus dei gratia , rex angliae & franciae , & dominus hiberniae . aug. apr. henricus dei gratia , rex angliae & franciae & dominus hiberniae . et anno regni , henricus octavus dei gratia , &c. anno regni , fidei defensor was added . et an. regni , in terra ecclesiae anglicanae & hiberniae supremum caput , was added . et an . reg . , rex hiberniae was added . apr. july edwardus sextus , dei gratia , angliae franciae & hiberniae rex , fidei desensor , et in terra ecclesiae anglicanae & hiberniae supremum caput . ian. iuly queen mary summon'd her first parliament by the same title , but soon after omitted supremum caput . after she married king philip , she used her own and his titles , &c. iuly nov. elizabetha dei gratia , angliae , franciae & hiberniae regina , fidei defensor . nov. march jacobus dei gratia , angliae , scotiae , franciae & hiberniae rex , fidei defensor . mar. march carolus dei gratia , angliae , scotiae , franciae & hiberniae rex , fidei defensor . mar. ian. carolus secundus , dei gratia , angliae , scotiae , franciae & hiberniae rex , fidei defensor . ian. vivat . vivat . ogdosteichon technicon regum reginarumque angliae . wil . conq. will rufus , henri . steph. henque secundus , ric. john , henricus , tres edward , rique secundus , post hos regnavit quartus , quintus quoque henri , hen. sextus , edward quartus quintusque ricardus tertius , hen. sept. & oct. edwardusque maria , eliz. jac. carolus primus , carolusque secundus regnat ; & aeterno vivat praeclarus honore , imperium oceano , famam qui terminet astris . a law-dictionary : interpreting such difficult words and obscure terms , as are found , either in our common or statute , ancient or modern laws . a abactors ( abactores ) were stealers of cattle or beasts , by herds or great numbers ; and were distinguished from fures . nam qui ovem unam surripuerit , ut fur coercetur , qui gregem , ut abactor . m. s. abate ( from the french abatre or abbatre , i. to fell , break down or defeat utterly ) signifies properly , to diminish or take away ; and in our law-writers , it has a like signification : for to abate a castle or fortlet ( old nat. br. fol. . ) in westm . . cap. . is interpreted to beat it down . and to abate a writ , is to defeat or overthrow it by some error or exception . britton . cap. . as he that puts out the possessor is said to disseise ; so he that steps in between the former possessor and his heir , is said to abate . and in the stat. de conjunctim feoffatis , . edw. . the writ shall be abated , that is , shall be disabled or overthrown . so in stamfords pleas of the crown , fol. . the appeal abates by covin , i. the accusation is defeated by deceit , anno hen. . cap. . — the justices shall cause to be abated and quashed the said writ . see intrusion . abatement ( fr. ) is sometimes used for the act of the abator ; as the abatement of the heir into the land , before he has agreed with the lord old nat. br. fol. . sometimes for the affection or passing the thing abated ; as abatement of the writ . kitchin , fol. . and in this signification it is as much as exceptio dilatoria , with the civilians ( brit. cap. . ) or rather an effect of it : for the exception alleaged and made good , works the abatement . and this exception may be taken , either to the insufficiency of the matter , or incertainty of the allegation , by misnaming the plantiff , defendant , or place ; to the variance between the writ , and the specialty or record ; to the incertainty of the writ , count , or declaration , or to the death of either of the parties , before judgment had , and for divers other causes : upon which defaults , the defendant may pray , that the writ or plaint may abate ; that is , the plaintiffs sute against him , may cease for that time . to prevent the abatement of writs of error , see the statute car. . cap. . sir edward coke says , abatamentum is a word of art , and signifies an entry by interposition . on littl. fol. . where he shews the difference between abatement , disseisin , intrusion , deforcement , usurpation , and purpresture . abbacy ( abbatia ) is the same to an abbot , as bishoprick to a bishop : we may call it his paternity . talis abbatia ( quae paternitas latino nomine dicitur ) funditus removeatur . concil . meldens . anno dom. . cap. . the word is used anno & hen. . cap. , . sciant — quod ego isabella● comitissa penbr● pio salute animae meae — dedi deo & abbathiae de nutteleg . totam wicham juxta praedictam abbathiam , &c. sine dat . abbat or abbot ( abbas ) a spiritual lord , that has the rule and preheminence over a religious house . he is by justinian termed archimandrita , by others coenobiarcha vel archimonachus . of these , some in england were mitred , some not : the mitred were exempt from the jurisdiction of the diocesan , having episcopal authority within their precincts , and being also lords of the parliament ; which were called abbots soveraign ( anno rich. . cap. . ) and abbots general ; the other sort were subject to the diocesan in all spiritual government . and as abbots , so were there lord priors also , who , both had exempt jurisdiction , and were lords of parliament , as appears by sir edw. coke , de jure eccles . fol. . of which lord abbots and priors that sate in parliament , some authors reckon but twenty six : sir edw. coke says they were twenty seven abbots and two priors . ( on littl. fol. . ) in the parliament rich. . there were but twenty five abbots and two priors . but in the summons to the parliament at winton , anno edw. . ( in dorso claus . ejusdem an. membran . . ) i finde more named , to which i have added the founders out of mr. dugdales monast . angl. abbots and priors . founders names . abbot of s. austins in canterbury . ethelbertus rex , anno . abbot of ramsey . ailwinus semi rex , . abbot of peterborough . wulferus rex , . abbot of croyland . ethelbald rex merciae , . abbot of evesham . egwin episc . wigorn , . abbot of st. benet de hulmo . canutus rex , anno . abbot of thornby . wil. albemarle sub hen. . abbot of colchester . eudo dapifer , hen. . abbot of leicester . rob. bossue , comes leic. . abbot of winchcomb . kenulphus rex merciae , . abbot of westminster . seabert rex occid . sax. . abbot of cirencester . henricus primus , . abbot of s. albans . offa rex merciae , . abbot of s. mary york . alanus comes britanniae , . abbot of shrewsbury . roger comes montgom . . abbot of selby . guliel . conquestor , . abbot of s. peters glocester . ofric rex northumb. . abbot of malmsbury . maidulfus hibern . scot. . abbot of waltham . heraldus rex , . abbot of thorney . adelwoldus and edgarus rex , . abbot of s. edmonds . canutus rex , . abbot of beaulieu . johannes rex , anno regni . abbot of abingdon . cissa rex , anno . abbot of hyde . aluredus rex , . abbot of rading . henricus primus rex , . abbot of glastonbury . jos . arrimat . inas rex occid . sax. . abbot of osney . rob. fitz nigel doiley , . prior of spalding . jo. talbois com. andegav . . prior of johns of jerusalem . jordanus briset & ux ejus , . prior of lewes . will. de warren primus comes surr. . to which were afterwards added , abbot of s. austins bristol . henricus secundus rex . abbot of bardeney . rex ethelredus , . prior de semplingham . saint gilbertus , . to these also henry the eight added the abbot of tavestock . and in the teste to magna charta , the names of some other abbots are inserted , among the great men of the realm . an abbot with the monks of his house , who were called the convent , made a corporation , and he was not chargeable with the act of his predecessor , if it were not by their common seal , or for such things as came to the use of the house . abbathy ( anno h. . cap. . ) see abbacy . abettator , an abetter . see abet . abbrochment ( abbrocamentum ) the buying up whole wares , before they are brought to market , or out of the fair or market , and selling the same by retail . m. s. de placit . coram rege ed. . penes arthur . trevor arm. abbuttals ( from the fr. abutter or abouter , i. terminare ) are the buttings or boundings of any land , east , west , north , or south ; declaring on what other lands , high-ways , or other places it does abbut : as in crokes reports , part . fol. . the plaintiff hath failed in his abuttals , that is , in setting forth how his land , is abutted and bounded . latera autem nunquam aiunt abuttare ; sed terram proximam adjacere . those ( says cambden ) that have written of limits , say , that certain hillocks or piles of earth , which they termed botentines , were set in limits . hence peradventure our buttings and boundings . abeyance or abbayance ( from the fr. bayer , 〈◊〉 . to gape after , or expect ; as those are said , bayer ●a 〈…〉 argent , qui spe atque animo incumbunt pecuniae ) in littleton , cap. disconcontinuance , sect. . is thus used , the right of fee-simple lies in abeyance ; that is , as himself interprets it , onely in the remembrance , intendment and consideration of the law. the frank-tenement of the gleab of a parsonage , is in no man during the time the parsonage is void , but is in abeyance . and it is a principle in the law , that of every land there is fee-simple in some man , or it is in abeyance . considering this with the signification of the french word , it is probable our ancient law books would signifie hereby a kinde of hope or longing expectance ; because those things that are in abeyance , though for the present in no man , yet are they in hope and expectation , belonging to him who is next to enjoy them . for i finde also in the french , that bayard is a man that gapes or gazes earnestly at a thing . and , this abeyance may be compared to that which the civilians call haereditatem jacentem . see coke on littl. fol. . b. and plowden casu walsingham . abet ( from the a. i. ad vel usque , and betan . i. e. emendare , excitare ) signifies to encourage , incite or set on . the substantive abetment is used for an encouraging or instigation . stamf. pl. cor. fol. . and abetter or abbettator for an instigator or setter on . old nat. br. fol. . but , both verb and noun are always used in the evil part : as abettors of murder are those that command , counsel , or maintain others to murder : and in some cases such abettors shall be taken as principals , in other , but as accessories , and their presence or absence at the deed doing , makes a difference in the case . abishersing , ( according to rastals exposition ) is to be quit of amerciaments before whomsoever , for transumption proved . the word originally signifies a forfeiture , or an amerciament , and is much transformed in the writing , since more probably it should be mishersing , mishering , or miskering , according to the learned spelman . it seems by some authors , to signifie a freedom or liberty ; because he that has this word in any charter or grant , has not onely the forfeitures and amerciaments of all others for transgressions within his fee ; but also is himself free from all such control , by any within that compass . abjuration ( abjuratio ) a forswearing or renouncing by oath ; a sworn banishment , or an oath taken to forsake the realm for ever . for , as stamford ( pl. cor. lib. . cap. . ) saith , the devotion towards the church ( first in edward the confessors time , and afterward till hen. . ) was so zealous , that , if a man , having committed felony , could recover a church or churchyard , before he were apprehended ; he might not be thence drawn to the usual tryal of law ; but confessing his fault to the justices , at their coming , or to the coroner , and before them or him , give his oath finally to forsake the realm : the form and effect whereof you may read in de officis coronatorum , and in horns mirror of justices , lib. . cap. del office de coroner . quando aliquis abjuravit regnum cruoc ei liberata fuit in manu sua portanda in itinere suo per semitas regias & vocabitur vexillum sanctae ecclesiae , essex . plac. hil. ed. . but this grew at last to be but a perpetual confining the offender to some sanctuary , wherein , upon abjuration of his liberty and free habitations , he would chuse to spend hs life , as appears anno hen. . cap. . it is enacted jac. cap. . that hereafter no sanctuary or priviledge of sanctuary , shall be allowed ; and consequently abjuration is taken away , instit . fol. . see sanctuary . abolition ( anno hen. . cap. . ) a destroying or putting out of memory . institutae actionis peremptio . the leave given by the king or judges to a criminal accuser to desist from further prosecution . abridge ( from the fr. abreger ) to make shorter in words , holding still the whole substance : but in law it seems to signifie , for the most part , the making a declaration or count shorter , by substracting or severing some of its substance . for example , a man is said to abridge his plaint in an assize , or a woman her demand in an action of dower , that hath put into the plaint or demand any land , not in the tenure of the tenant or defendant ; and , if the tenant pleads non-tenure , or such-like plea to parcel of the land demanded , in abatement of the writ ; the demandant may abridge his plaint or demand to that patcel , that is , he may leave out that part , and pray the tenant may answer the rest , to which he has not yet pleaded any thing : the cause is , for that in such writs the certainty is not set down , but they run in general . and though the demandant hath abridged his plaint or demand in part , yet the writ remains good still for the rest . brook , tit . abridgment . an. h. . cap. . abridgment of a plaint . see abridge . abrogate ( abrogo ) to disannul , take away , or repeal ; as to abrogate a law , i. to lay aside or repeal it , anno & edw. . cap. . see prorogue . absentees or des absentees , was a parliament so called , held at dublin , may , h. . and mentioned in letters patent , dat. h. . see cokes , inst . fol. . abuttals . see abbuttals . accedas ad curiam ( lat. ) is a writ that lies for him , who has received false judgment , or fears partiality in a court baron , or hundred court , being directed to the sheriff , as appears by dyer , fol. . numb . . as the writ de falso judicio lies for him that has received such judgment in the county court , the form whereof you may see in fitz. nat. er fol. . and in the register , fol. . b. where it is said this writ lies for justice delayed , as well as falsly given ; and that it is a species of the writ recordare . accedas ad uicecomitem , is a writ directed to the coroner , commanding him to deliver a writ to the sheriff , who having a pone delivered him , doth suppress it , reg. of writs , fol. . acceptance ( acceptatio ) is a taking in good part , and a tacite kinde of agreeing to some former act done by another , which might have been undone or avoided , if such acceptance had not been . for example , if baron and feme seized of land in right of the feme , make a joynt lease or feoffment by deed ; reserving rent , the baron dies , the feme accepts or receives the rent : by this the feoffment or lease is made good , and shall bar her to bring the writ cui in vita . coke on littl. fol. . b. accessory or accessary ( particeps criminis ) most commonly signifies , one that is guilty of a felonious offence , not principally , but by participation , as by command , advice or concealment , and is of two sorts , . before the offence or fact , is he that commands or procures another to commit felony , and is not himself present ; but , if he be , then he is also a principal . . after the offence , is he that receives , assists , or comforts any man , that has done any murder or felony , whereof he hath knowledge . he who counsels or commands any evil , shall be judged accessary to all that follows upon it , but not to another distinct thing . as , i command one to beat another , and he beats him so , that the other dies of it , i shall be accessary to this murder . but , if i command one to steal a white horse , and he steals a black one ; or to burn such a house , which he well knows , and he burns another , i shall not be accessary . if i command one to kill i. s. in the field , and he kills him in the city or church , or to kill him at such a day , and he kill him on another , i shall be accessary nothwithstanding : for the killing is the substance , and the day , place , or weapon , is but circumstance . but if i command one to kill i. s. and before he hath killed him , i come and say , i am penitent for my malice , and charge him not to kill him , and yet he kills him , i shall not be accessary . where the principal is pardoned or hath his clergy , the accessary cannot be arraigned ; there being a maxim in the law , ubi non est principalis non potest esse accessorius : for , it appears not by the judgment of law , that he was principal ; but if the principal , after attainder , be pardoned or hath his clergy allowed him , there the accessary shall be arraigned . see sir edward cokes , part institutes , fol. . in the lowest and highest offences , there are no accessaries , but all are principals ; as in riots , forcible entries , and other transgressions , vi & armis , which are the lowest offences . so in the highest offence , which is crimen laesae majestatis , there are no accessaries ; but in felony there are , both before , and after . coke on lit●l . fol. . there cannot be an accessary before the fact , in man-slaughter ; because that is sudden and unprepensed . see more in stamf. pl. cor. lib. . cap. , , , . accessories in petit-treason , felony , murder , shall not have their clergy , an. & phil. & ma. c. . accompt ( computus ) is taken for a writ or action , which lies against a bailiff or receiver , who ought to render an account to his lord or master , and refuseth . and by the statute of westm . . cap. . if the accomptant be found in arrear , the auditors that are assigned to him , have power to award him to prison , there to remain , till he makes agreement with the party . but if the auditors will not allow reasonable expence and costs , or if they charge him with more receipts then they ought , his next friend may sue a writ of ex parte talis out of the chancery , directed to the sheriff , to take four mainpernors , to bring his body before the barons of the exchequer , and to warn the lord to appear there at a certain day . see fitzh . nat. br. fol. . accord ( fr. ) agreement , concordance , consent . particularly it is an agreement between two or more , where any person is injured by a trespass , offence , or contract , to satisfie and content him with some recompence , which , if executed , and performed , shall be a good bar in law , if the other party ( after the accord performed ) bring any action for the same . accroche ( fr. accrocher ) to hook , clasp , or grapple unto . it is used ( anno edw. . stat. . cap. . ) as encroach . in france , even at this day accrocher un proces , signifies to stay a suit , or to delay the proceeding of it for a time . see encroachment . achat ( fr. achet , i. a bargain or purchase ) is used for a contract or bargain . brook , tit . contract . purveyors were by parliament , ed. . ordained to be then after called achators . acquietancia de shiris et hundredis , i. quod prior non debet facere sectam ad comitatum norwici vol in hundredo pro manerio de rudham cum pertin . ex regist . priorat . de coke sford . acquietandis plegiis , is a writ lying for a surety against the creditor that refuseth to acquit him , after the debt is paid . reg. of writs , fol. . where it appears , that this is a justicies . acquital ( from the fr. acquiter , to free , acquit , or discharge ) most commonly signifies a deliverance , discharge , and setting free from the suspition or guilt of an offence ; and is twofold , acquittal in law , and acquittal in fact. acquital in law , is when , two are appealed or endited of felony , one as principal , the other as accessary ; the principal being discharged , the accessary is by consequence also freed . and in this case , as the accessary is acquitted by law , so is the principal in fact. stamf. pl. cor. fol. . acquital is also where there is a lord , mesn , and tenant ; and the tenant holds lands of the mesn , and the mesn holds over of the lord paramount : now the mesn ought to acquit the tenant of all services claimed by any other for the same lands ; for the tenant must do his service to the mesn onely , and not to divers lords for one parcel of land. see coke on littleton , fol. . acquittance ( acquietantia ) is a release or discharge of a debt formerly due but the verb ( acquit ) the participle acquitted , and the noun acquittal , signifie also a discharge or clearing from an offence objected ; as acquitted by proclamation . smith de rep. angl. p. . stams . pl. cor. fol. . brook tit . acquittal . acre ( from the germ. acker , i. ager ) is a parcel of land , containing in length forty perches , and four in bredth , or to that quantity , be the length more or less . and , if a man erect any new cottage , he must lay four acres of land to it , after this measure . anno eliz . cap. . with this measure agrees crompt in his jur. of courts , fol. . though he says , according to the custom of divers countreys , the pearch differs , being in some places , and most ordinarily but sixteen foot and a half ; but in staffordshire twenty four foot , as was adjudged in the case between sir edward aston , and sir john b. in the exchequer . in the statute concerning sowing flax , ( hen. . cap. . ) eightscore perches make an acre , which is forty multiplied by four : see also the ordinance of measuring land , edw. . stat. . which agrees with this account . action ( actio ) is thus defined by bracton , lib. . cap. . & . actio nihil aliud est quam jus prosequendi in judicio quod alicui debetur ; and is divided into personal , real , and mixt . see cokes inst . fol. . action personal , is that which one man hath against another , by reason of any contract for money or goods , or for offence done by him , or some other person , for whose fact he is by law answerable . action real , is that whereby the demandant claims title to any lands or tenements , rents , or commons , in fee-simple , fee-tail , or for life . and every action real , is either possessory , that is , of his own possession or seisin ; or ancestrel , of the seisin or possession of his ancestor . coke , lib. . fol. . real actions , as writs of right , writs of entry , &c. and their several appendixes , as grand cape , petit cape , receit , view , aid-prayer , voucher , counter-plea of voucher , counter-plea of warrantry , recovery in value , were several great titles in our year-books , but now much out of use . preface to rolls abridgment . action mixt , is that which lies indifferently against the thing detained , or against the person of the detainer ; and is so called , because it hath a mixt respect , both to the thing and the person : or ( as others define it ) is sute given by the law to recover the thing demanded , and damages for wrong done : as in assize of novel disseisin , which writ ( if the disseissor make a feoffment to another ) the disseisee shall have against the disseisor ; and the feoffee , or other ter-tenant to recover not onely the land , but damages also . and so is an action of wast and quare impedit . actions are also divided into civil , penal , and mixt. coke , vol. . fol. . a. action civil is that which tends onely to the recovery of that which by reason of any contract , or other like cause , is due to us : as if a man by action seek to recover a sum of money formerly lent , &c. action penal aims at some penalty , or punishment in the party sued , be it corporal or pecuniary : as in the action legis aquiliae in the civil law ; and with us , the next friends of a man feloniously slain or wounded , shall pursue the law against the offender , and bring him to condign punishment . bracton , lib. . cap. . action mixt , is that which seeks both the thing , whereof we are deprived , and a penalty for the unjust detaining it : as in an action for tythe upon the statute & edw. . cap. . item est alia actio mixta , quae dicitur actio hirciscundae , & locum habet inter eos qni communem habent haereditatem , &c. see coke on littl. fol. . b. action is also ( according to the form of the writ ) divided into such as are conceived to recover , either the simple value of the thing chalenged , or the double , trebble , or quadruple . as a decies tantum lies against embracers . fitz. nat. br. fol. . and against jurors that take money for their verdict of either or both parties : and to be short , any other action upon a statute , that punishes any offence by restitution or fine , proportionable to the transgression . action is pre-judicial ( otherwise termed preparatory ) or else principal . pre-judicial is that which grows from some question , or doubt in the principal : as if a man sue his younger brother for land descended from his father , and it is objected , he is a bastard . bracton , lib . cap. . numb . . this point of bastardy must be tryed , before the cause can further proceed ; and therefore is termed pre-judicialis , quia prius judicanda . action is either ancestrel or personal , stamf. pl. cor. . ancestrel seems to be that , which we have by some right descending from our ancestor ; and personal , which has beginning in , and from our selves . there is also action ancestrel droiturel , and action ancestrel possessary ; which see in cokes inst . fol. . action upon the case ( actio super casum ) is a general action given for redress of wrongs done to any man without force , and by law not especially provided for , and is now most in use . for , where you have any occasion of suite , that neither has a fit name , nor certain form already prescribed ; there the clerks of the chancery , in ancient time , conceived a sit form of action for the thing in question , which the civilians call actionem in factum , and we , action upon the case . action upon the statute ( actio super statutum ) is an action brought against a man , upon an offence against a statute , whereby an action is given , and lay not before . as , where one commits perjury , to the prejudice of another , he , who is endamaged , shall have a writ upon the statute , and his cause . and , the difference between an action upon the statute , and action popular , is , where the statute gives the suite or action to the party grieved , or otherwise to one person certain , that is called action upon the statute . but where authority is given by the statute to every one that will so sue , that is termed action popular . action is perpetual or temporal ( perpetua vel temporalis ) and that is called perpetual , whose force is by no time determined . of which sort were all civil actions among the ancient romans , viz. such as grew from laws , decrees of the senate , or constitutions of the emperors ; whereas actions granted by the pretor , died within the year . so we have in england , perpetual and temporary actions , and i think all may be called perpetual , that are not expresly limited . as divers statutes give actions , so they be pursued within the time by them prescribed ; namely , the statute of edw. . cap. . gives action for three years after the offences committed , and no longer . and the statute of hen. . cap. . doth the like for four years , and that of eliz. cap. . for one year , and no more . but , as by the civil law , no actions were at the last so perpetual , but that by time they might be prescribed against : so in our law , though actions may be called perpetual , in comparison of those that are expresly limited by statute , yet is there a means to prescribe against real actions after five years , by a fine levied , or a recovery suffered ; as you may see in the words , fine , recovery , and limitation of assize . action of a writ , is a term used , when one pleads some matter , by which he shews the plaintiff had no cause to have the writ he brought ; yet it may be , he might have another writ or action for the same matter . such a plea is called , a plea to the action of the writ . whereas , if by the plea it should appear , that the plaintiff has no cause to have an action for the thing demanded ; then it is called a plea to the action . cowel . acts of parliament are positive laws , which consist of two parts ( viz. ) of the words of the act , and the sence of it , and they both , joyned together , make the law. acton-burnel , a statute so called , made edw , . & an. . ordaining the statute merchant for recovery of debts ; and was so termed , because made at acton-burnel , a castle , anciently of the burnels , afterward of the lovels in shropshire . actuary ( actuarius ) is the scribe that registers the acts and constitutions of the convocation . addition ( additio ) signifies , a title given to a man over and above his christian and sirname , shewing his estate , degree , mystery , trade , place of dwelling , &c. additions of estate , are these , yeoman , gentleman , esquire , and such like . additions of degree are those we call names of dignity , as knight , lord , earl , marquess , and duke . additions of mystery , are , scrivener , painter , mason , &c. addition of town , as dale , thorp , and such like . and , where a man hath houshold in two places , he shall be said to dwell in both of them ; . so that his addition in either may suffice . by the statute of hen . cap. . it was ordained , that in suits or actions where proces of outlary lies , such additions should be to the name of the defendant , to shew his estate , mystery , and place where he dwells , and that the writs , not having such additions , shall abate , if the defendant take exception thereto ; but not , by the office of the court. and this was ordained , to the intent , that one man might not be vexed , or troubled by the outlary of another ; but by reason of the certain addition , every person may bear his own burden . see part. institut . fol. . & . and the statute eliz. cap. . addoubors . see redoubors . adeling or ethling , from the sax. Æðelan , i. nobilis ) was a title of honor among the angles , properly appertaining to the successor of the crown . for king edward being himself without issue , and intending to make eadgar ( to whom he was great uncle by the mothers side ) his heir to this kingdom , called him adeling . hoveden parte poster . annal. fol. . a. vide leges s. edw. conf. m. s. a. will. conq. recept . cap. ante-penult . see more of this word in spelmans glossarium . adjournment ( from the fr. adjournement ) is when any court is dissolved for the present , or put off , and assigned to be kept again at another day or place . adjournment in eyre ( anno edw. . statute of purveyers , cap. . ) is an appointment of a day , when the justices in eyre mean to sit again . and in edw. . cap. . adjournment has the like signification . see prorogue . adjudication ( adjudicatio ) a giving by judgment , a sentence , or decree , an. & car. . cap. . ad inquirendum , is a writ judicial , commanding enquiry to be made of any thing touching a cause depending in the kings court , for the better execution of justice , as of bastardy , and such like . whereof see great diversity in the table of the register judicial , verbo , ad inquirendum . ad jura regis , is a writ that lies for the kings clerk , against him that sought to eject him to the prejudice of the kings title in right of his crown . of which see register of writs , fol. . a. admeasurement ( admensuratio ) is a writ which lies , for bringing those to reason , or a mediocrity , that usurp more then their share . and this in two cases , the one termed admeasurement of dower ( admensuratio dotis ) where the widow of the deceased , holds from the heir , or his guardian , more , in the name of her dower , then of right belongs to her . register of writs , fol. . a. fitz. nat. br. fol. . in which case , the heir shall be restored to the overplus . the other , admeasurement of pasture , ( admensuratio pasturae ) which lies between those , who have common of pasture , appendant to their freehold , or common by vicenage , in case any of them surcharge the common with more cattle than they ought . regist . fol. . b. fitz. nat. br. fol. . adminicle ( adminiculum ) aid , help , support . anno edw. . cap. . administrator ( lat. ) is he that hath the goods of a man dying intestate , committed to his charge by the ordinary , and is accountable for the same , whensoever it shall please the ordinary to call him thereto . an action lies against him , and for him , as for an executor ; and he shall be charged to the value of the goods of the intestate , and no further ; if it be not by his own false plea , or by wasting the goods of the dead . if the administrator die , his executors are not administrators ; but it behooves the court to grant a new administration . if a stranger , who is neither administrator nor executor , take the goods of the dead , and administer of his own wrong , he shall be charged and sued as an executor , and not as administrator . see the statutes of westm . . cap. . and edw. . cap. . administratrix ( lat. ) she that hath such goods committed to her charge . admiral ( admiralius , admirallus , admiralis , capitaneus , or custos maris ) signifies , an high officer , or magistrate , that hath the government of the kings navy . see the statutes & rich. . cap. . and — h. . cap. . hen. . cap. . and eliz. cap. . this officer is in all kingdoms of europe that border on the sea. he hath cognizance of the death , or maim of a man , committed in any great ship , riding in great rivers , beneath the bridges thereof , next the sea ; also to arrest ships in the great streams , for the service of the king or commonwealth , and hath jurisdiction in such streams , during the same voyages . and it appears , that anciently the admirals of england , had jurisdiction of all causes of merchants and mariners , hapning not onely upon the main sea , but in all foraign parts within the kings dominions , and without them , and were to judge them in a summary way , according to the laws of oleron , and other sea-laws . see prynnes animadversions on inst . pag. . & seq . admission ( admissio ) is when the bishop , upon examination admits a clerk to be able , and says admitto te habilem . coke on littl. fol. . a. admittendo clerico , is a writ granted to him , who hath recovered his right of presentation against the bishop in the common-bench . the form whereof read in fitz. nat. br. fol. . and register of writs , fol. . a admittendo in socium , is a writ for the association of certain persons to justices of assize formerly appointed . register of writs , fol. . a. adnichiled , ( anno hen. . cap. . ) annulled or made void . ad quod damnum , is a writ that lies to the sheriff to enquire what hurt it may be for the king , to grant a fair or market in any town , or place ; or for the king , or any other person to grant any lands in fee-simple to any house of religion , or other body politick . for in such case the land so given , is said to fall into a dead hand ; that is , such an estate and condition , that the chief lords lose all hope of heriots , service of court and escheats , upon any traiterous or fellonious offence committed by the tenant . for a body politick dies not , nor can perform personal service to the king , or their mesn lords , as single persons may do . and therefore it is reasonable , that before any such grant be made , it should be known what prejudice it is like to work to the grantor . of this read more in fitz. nat. br. fol. . and see mortmain . ad terminum qui praeteriit , is a writ of entry , that lies where a man , having leased lands or tenements for term of life or years ; and after the term expired , is held from them by the tenant or other stranger that enjoys the same , and deforceth the lessor . which writ lies for the lessor , and his heir also . fitz nat. br. fol. . advent ( adventus ) is the time from the sunday that falls either upon s. andrews day , or next to it , till the feast of christs nativity , ( sir edward coke ( part. inst . fol. . ) says advent ends eight days after the epiphany ; but it is a mistake ) wherein our ancestors reposed much reverence and devotion , in reference to the approaching solemn feast . for , in adventu domini nulla assisa debet capi . int. placita de temp . regis johan . ebor. . whereupon there was a statute ordained , westm . . cap. . that notwithstanding the said usual solemnity and time of rest , it should be lawful ( in respect of justice and charity , which ought at all times to be regarded ) to take assizes of novel disseisin , mort d ancester , and darrcin presentment , in the time of advent , septuagesima , and lent. this is also one of the times , from the beginning whereof , to the end of the octaves of the epiphany ; the solemnizing of marriage is forbidden , without special licence , according to these old verses . conjugium adventus prohibet , hilarique relaxat : septuagena vetat , sed paschae octava reducit . rogatio vetitat , concedit trina potestas . see rogation week and septuagesima . adultery ( anno hen. . cap. . advoutry , adulterium , quasi ad alterius thorum ) properly spoken of married persons ; but if onely one of the two , by whom this sin is committed , be married , it makes adultery ; which was severely punished by the ancient laws of this land , ( not to mention the julian law , among the old romans , which made it death . ) edmundus rex adulterium affici jussit instar homicidii . ll. suarum , cap. . canutus rex hominem adulterum in exilium relegàri jussit , foeminam nasum & aures praecidi . ll. par . . cap. . & . qui uxoratus faciet adulterium habet rex vel dominus superiorem , episcopus inferiorem , ll. hen. . cap. . doomsday tit . chent , rex , dover , — de adulterio per totam chent , habet rex hominem , archiepiscopus mulierem , excepta terra s. trinitatis , s. augustini , & s. martini , de quibus rex nihil habet . et tit . cistre civitas — vidua , si se non legitimè commiscebat xx s emendebat , puella vero x s. the penalty of this sin was called lairwite by our saxons . see in part. cokes instit . the notable case of margret , the wife of john de camois , who , with the consent of her husband , lived in adultery with sir william panell , yet lost her dower . see dower . — rex — vic . sutht . — praecipimus tibi quod diligenter inquiri facias per legales homines de visn . candeur . si robertus pincerna , habens suspectum will. wake qui cum uxore sua adulterium committeret , prohibuit ei ingressum domus suae , & si idem will. post prohibitionem illam , domus ipsius roberti ingressus adulterium praedictum commisit , inde praefatus robertus mentula eum privavit , & si inquisitio dederit , quod ita sit , tunc eidem roberto & suis qui cum eo erant ad hoc faciend . terr . & catalla sua occasione illa in manum nostram saisita , in pace esse facias , donec aliud inde tibi praecipimus , & veritatem illius inquisitionis g. fil . petri justic . & baronibus nostris de scace . scire fac . teste g. fil . petri com. essex apud wudestoke , nov. — claus. joh. m. . ad ventrem-inspiciendum , is a feminine writ , mentioned in the statute of essoyns , anno edw. . see ventre inspiciendo . advocatione decimarum , is a writ that lies for the claim of the fourth part or upward , of the tythes that belong to any church . register of writs , fol. . b. adboutry . see adultery . advow alias abow ( advocare ) to justifie or maintain an act formerly done . for example , one takes a distress for rent , or other thing , and he that is distrained , sues a replevin . now the distrainet , justifying or maintaining the act , is said to avow . hence comes advowant and advowry . old nat. br. fol. . bracton useth the latin word in the same signification ( as advocatio disseisinae ) lib. . cap. . and i finde in cassanaeus de consuet . burg. pag. . advobare in the same signification . and pag. . the substantive desavohamentum , for a disavowing or refusing to avow . advowe alias avowe ( advocatus ) is used for him that hath right to present to a benefice , anno edw. . stat. . where we finde also advowce paramount , for the highest patron , and is spoken of the king. advocatus est ad quem pertinet jus advocationis alicujus ecclesiae , ut ad ecclesiam , nomine proprio non alieno , possit praesentare . fleta , lib. . cap. . fitz. nat. br. fol. . useth it in the same signification . see avowe . advowee paramount ( statute of provivisors , edw. . ) is taken for the king , or highest patron . advowzen ( advocatio ) a right to present to a benefice ; as much as jus patronatus in the canon law. the reason why it is so termed , is , because they that originally obtained the right of presenting to any church , were upholders of , or great benefactors to that church , either by building or increasing it ; and are therefore sometimes termed patroni , sometimes advocati , sometimes defensores , cap. . & . de jure patronatus in decretal . and advowzen ( being a bastard-french word ) is used for the right of presenting ; as appears by the statute of westminster , anno edw. . cap. . advowzen , is of two sorts , advowzen in gross , that is , sole , not adhering to any mannor , as parcel of its right ; and advowzen appendant , which depends upon a mannor , as appurtenant to it , termed by kitchin an incident that may be separated from the subject . of this skene , de verbor . sign . hath these words , dicitur advocatio ecclesiae , vel quia patronus alicujus ecclesiae ratione sui juris advocat se ad eandem ecclesiam , & asserit se in eadem habere jus patronatus , eamque esse sui quasi clientis loco , vel potius cum aliquis ( nempe patronus ) advocat alium jure suo ad ecclesiam vacantem , eumque loco alterius ( veluti defuncti ) praesentat , & quasi exhibet . aelmefeoh , pecunia eleemosynaria , scilicet denaria sancti petri. see almsfeob . aetate probanda , is a writ that the kings tenant , holding in chief by chivalry , and being ward by reason of his nonage , obtained to the escheator of the county where he was born , or sometimes where the land lay , to enquire whether he were of full age to take his lands into his own hands . register of writs , fol. . fitz. nat. br. fol. . now disused . aery or airy of goshawks ( fr. aire ) is the proper word in hawks , for that we generally call a nest in other birds . so it is used anno hen. . cap. . in the charter of the forest , and in divers other places . aesnecy . see esnecy . affeerers ( afferatores ) probably from the fr. affier , i. to confirm or affirm , ) are those that are appointed in court leets upon oath , to settle and moderate the fines of such as have committed faults arbitrarily punishable , and have no express penalty set down by statute . the form of their oath you may see in kitchin , fol. . the reason of this appellation seems to be , because those that are appointed to this office , do affirm upon their oaths , what penalty they think in conscience the offender hath deserved . we finde this word used , anno edw. . stat. . ( viz. ) the same justices before their rising in every sessions , shall cause the amerciaments so be affiered . and to the same effect , anno hen. . cap. . kitchin , fol. . joyns these three words , as synonima's , affidati , amerciatores , affirores . bracton hath affidare mulierem , to be betrothed to a woman lib. . cap. . but i finde in the customary of normandy , cap. . this word ( affeurer ) which the latin interpreter expresseth by ( taxare ) that is , to set the price of a thing , as aestimare , indicare , &c. which etymology seems to be the best . affidatus , signifies a tenant by fealty , — ego rogerus de f●●hid dedi , &c. wil. wa lensi pro suo servitio unam acram & perchiam terrae , &c. pro hac donatione & concessione devenit praedictus wil. affidatus meus , &c. affidati non proprie vassalli sunt , sed quasi vassalli , qui in alicujus fidem & clientelam sunt recepti , recommendati dicti . laurentii amalthaea . affidatio accipitur pro mutua fidelitatis connexione , tam in sponsaliis , quam inter dominum & vassallum . proles de affidata & non maritata , non est haeres . m. s. penes arth. trevor ar. affirm ( affirmare ) signifies to ratisie or confirm a former law or judgment . so is the substantive affirmance used anno hen. . cap. . and so is the verb it self by west parte secunda symbol . tit . fines , sect . . if the judgment be affirmed , &c. as also by crompton in his jurisd . fol. . hen. . cap. . afforest ( afforestare ) to turn ground into forest . charta de foresta , cap. . anno hen. . see more in forest . affray ( of the fr. affros , i. a fright ) signifies a skirmish or fighting between two or more . lamb. in his eirenarcha , lib. . cap. . saith , it is ofttimes confounded with assault ; but they differ in this , that an assault is onely a wrong to the party , an affray is a common wrong : and therefore both are enquirable and punishable in a leet . an affray may also be without word or blow given : as if a man shew himself furnished with armor or weapons , not usually worn , it may strike a fear into others unarmed . and so it is used , an. edw. . cap. . affri vel affra , bullocks , or plough-beasts . vicecomes liberet ei omnia catalla debitoris , exceptis bobus & affris carucae . westm . . cap. . and in northumberland , to this day , they call a dull or slow horse , a false aver , or af●r . spelm. from whence also may come the word heyfer for a young cow. age ( aetas , fr. aage , ) signifies that part of mans life , which is from his birth , to this , or his last day . but in law it is particulary used for those especial times , which enable men or women to do that , which before for want of age , and consequently of judgment , they might not do . these in a man , are two ; at fourteen years he is at the age of discretion , twenty one years , is his full age. littleton , lib. . cap. . in a woman there were six ages observed : first , at seven years of age her father might , of old , distrain the tenants of his mannor , for aid to marry her : for at those years she may consent to matrimony . bracton , lib. . cap. . numb . . secondly , at nine years old , she is dowable ; for then or within half a year after , she is able promereri dotem & virum sustinere . fleta , lib. . cap. . littl. lib. . cap. . which bracton does notwithstanding limit unto twelve years . thirdly , at twelve years she is able finally , to ratifie and confirm her former consent to matrimony . fourthly , at fourteen she is enabled to receive her lands into her own hands , and should be out of ward , if she were of this age at her ancestors death . fifthly , at sixteen years she should be out of ward , though at the death of her ancestor she was under fourteen . the reason is , because then she might take a husband able to perform knights service . sixthly , at twenty one years she is able to alienate her lands and tenements . also at the age of fourteen , a man is enabled to chuse his own guardian , and to claim his land holden in soccage . dyer , fol. . which bracton ( lib. . ) limits at fifteen years , with whom glanvile also agrees . and at fourteen a man may consent to marriage , as a woman at twelve . at the age of fifteen years , a man ought to be sworn to keep the peace . an. edw. . stat. . the age of twenty one did compel a man to be knight , that had twenty pound land per annum in fee , or for term of life . anno edw. . stat. . which statute is repealed car. . cap. . that age also enables him to make contracts , and manage his estate ; which until that time , he cannot do , with security of those that deal with him . the age of twelve years binds to appearance before the sheriffs and coroner , for enquiry after robberies . anno hen. . cap. . the age of fourteen years enables to enter an order of religion , without consent of parents . anno hen. . cap. . see coke on littl. fol. . b. age prier ( aetatem precari , or aetatis precatio ) is a petition or motion made in court by one in his minority , ( having an action brought against him for lands coming to him by descent ) that the action may rest till he come to full age ; which the court , in most cases , ought to grant . this is otherwise in the civil law , which enforceth children in their minority to answer by their tutors or curators . agenhine . see hoghenhine . agent and patient , is when one is the doer of a thing , and the party to whom it is done : as where a woman endows herself of the fairest possession of her husband . agist ( from the fr. giste , i. a bed or resting-place , or from gister , i. stabulari ) signifies to take in , and feed the cattle of strangers in the kings forest , and to gather the money due for the same . charta de foresta , cap. . the officers that do this , are called agistors , in english guest or gist-takers . crom. jurisd . fol. . these are made by the kings letters patent , and he hath four of them in every forest , where he has any pawnage . in what their office consists , see manwood , part . of forest laws , p. . their function is termed agistment ; as , agistment upon the sea banks . anno hen. . cap. . this word agist is also used for the taking in of other mens cattle into any mans ground , at a certain rate per week . see part. instit . fol. . agreement ( agreamentum , plowden , fol. . ) is a joyning or putting together of two or more mindes in any thing done , or to be done ; and this is in three manners , . an agreement executed at the beginning . . an agreement after an act done by another , and is executed also . . an agreement executory , or to be done . the first is such , whereof mention is made in the statute of edw. . cap. . of cloaths , which saith , that the goods bought by forestallers , being thereof attainted , shall be forfeit to the king , if the buyer thereof have made gree with the seller ; where the word gree , which is otherwise called agreement executed , signifies payment for the things , or satisfaction . the second is , where one does an act , and another agrees or assents thereunto afterwards . the third is , when both parties at one time are agreed , that such a thing shall be done in time to come ; which is executory , in regard the thing is to be done afterwards . aid ( auxilium ) is all one in signification with the french aide , and differs onely in pronunciation , if we take it as it is used in our vulgar language . but , in our laws , it hath divers particular significations , as sometimes it signifies a subsidy . an. edw. . stat. . cap. . sometimes a prestation due from tenants to their lords , as toward the relief due to the lord paramount . glanvile , lib. . cap. . this the king or other lord might of old lay on their tenants , for knighting his eldest son at the age of fifteen years , or marrying his daughter at seven . register of writs , fol. . a. and that at what rate themselves listed . but the statute of westm . . an. edw. . ordained a restraint herein upon common persons , being lords , and tied them to a constant rate . and edw . stat. . cap. . provides , that the rate set down by the former statute should hold in the king , as well as in other lords . of which , i finde mention in the statute of hen. . cap. . this imposition seems to have descended to us from normandy , ( or rather from a more ancient original , viz. the feodal laws . ) for in the grand custumary , cap. . you have a tractat , entituled , 〈◊〉 aides chevelz . i. de auxiliis capitalibus ; whereof the first is , a faire paine filz de son seigneur chevalier , i. to make the eldest son knight . the second , son ainee fille marier , i. to marry the eldest daughter , &c. both these , and all charges incident thereunto , are taken away and discharged by statute , car. . cap. . this word aid is also particularly used in matter of pleading , for a petition made in court for the calling in of help from another , that hath an interest in the cause in question ; and is likely to give strength , both to the party that prays in aid of him , and also to avoid a prejudice growing toward his own right , if not prevented . but this course of proceeding is of late much disused . fitz-herbert mentions both prier in ayde , and prier ayde de patron , &c. auxilium petere à patrono , nat. br. fol. . d. and the new book of entries , verbo ayde de parcener , fol. . col . . the word is also found in rich. . cap. . this ayd-prier or aid-prayer , is sometime also used in the kings behalf , that there be no proceeding against him , till his council be called , and heard what they can say , for avoiding the kings prejudice or loss in the cause in hand . also a city or borough that hath a fee-farm of the king , may pray in ayd of him , if any thing be demanded of them relating thereto . of this you may read the statute de bigamis , an. edw. . cap. . & . edw. . stat. . cap. . & car. . cap. . vide resceit . aile ( of the fr. aieul , i. avus ) signifies a writ that lies , where the grand-father , or great grand-father called by us besaile , but in true french bisaycul , was seised of any land or tenement in fee-simple the day he died , and a stranger abateth or enters the same day , and dispossesseth the heir , fitz. nat. br. fol. . see plowden , fol. . b. airie of hawks . see aerie . alba firma . census annalis qui centenario sive domino hundredi penditur . ideo alba dicta , quod non ex more prisci saeculi in anuon â quae tunc black mail nuncupata fuit ( hoc est census vel firma nigra ) sed argento , quasi censu albo reddebatur . spelman . duplex est tenura in com. westmerland . scil . una per albam firmam & alia per cornagium , &c. part. inst . fol. . alderman ( sax. ealdorman , i. senior , ) was among the saxons , as much as earl among the danes , camb. brit. fol. . also an elder , senator , or statesman . at this day we call them aldermen , who are associates to the civil magistrate of a city or town corporate , h. . cap. . see spelmans glossarium at large on this word , where you shall finde that we had here anciently a title of aldermannus totius angliae . hic requiescit d. ailwinus inclyti regis eadgari cognatus , totius angliae aldermannus , & hujus sacri caenohii ( i. ramesien . ) miraculosus fundator . alepiman ( alepimannus ) — omnis alepiman de tota soca de hecham , debet singulis annis unum denarium de chevagio ; & operabitur per tres dies in antumpno , exceptis illis qui ab hac servitute liberi sunt . consuetudinar . de hecham prior. lew. m. s. pag. . videtur alepimannos istos mancipia fuisse ; chevagii enim solutio servitutis judicium est . spelman . aler sans jour ( fr. ) is verbatim , to go without day ; the meaning whereof is to be finally dismissed the court , because there is no day of farther appearance assigned . kitchin , fol. ale-silver , a rent or tribute yearly paid to the lord major of london , by those that sell ale within the city . antiq. of purveyance , fol. . aletaster , is an officer appointed in every court leet , and sworn to look to the assize , and goodness of bread and ale , or beer , within the precincts of that lordship . kitchin , fol. . where you may see the form of his oath . alias , vide capias alias . alien ( alienare ) signifies to transfer the property of any thing to another person . to alien in mortmain , is to make over lands or tenements to a religious house , or other body politick . see mortmain . to alien in fee , is to sell the fee-simple of any land or tenements , or of any incorporeal right . westm . . cap. . anno edw. . alien ( alienus ) one born in a strange countrey . it is usually taken for the contrary to denizen , or a natural subject , that is , a stranger never here enfranchised . brook , denizen , &c. yet a man born out of the land , so it be within the limits of the kings obedience beyond the seas , or of english parents out of the kings obedience , so the parents , at the time of the birth be of such obedience , is no alien in account , but a subject to the king. stat. . edw. . commonly called the statute de natis ultra mare . also , if one born out of the kings alleagiance , come and dwell in england , his children , begotten here , are not aliens , but denizens . see denizen . alimony ( alimonia ) nourishment , maintenance . but in a modern legal sence , it signifies , that portion or allowance , which a married woman sues for , upon any occasional separation from her husband ; wherein she is not charged with elopement or adultery . this alimony was anciently expressed by rationabile estoverium , for reasonable maintenance . rex vic. bucks salutem . praecipimus tibi quod de maritagio emmae de pinckeney uxoris laurentii penire , qui excommunicatus est , eo quod praedictam emmam affectione maritali non tractat , eidem emmae rationabile estoverium suum invenias donec idem laurentius vir suue eam tanquam uxorem suam tractaverit , ne iteratus clamor ad nos inde perveniat . t. aug. anno regni nostri . rot. claus . . hen. p. . m . allay ( fr. ) is used for the temper or mixture of other metals with silver or gold. anno hen. . stat. . cap. . and stat. . cap. . the reason of which allay is , with a baser metal , to augment the weight of the silver or gold , so much as may countervail the princes charge in the coyning , and to make it the more fusile . anto. faber . de nummariorum debitorum solutionibus , cap. . anno hen. . cap. allocation ( allocatio ) a placing or adding unto ; also allowance made upon an account : used in the exchequer . allocatione facienda , is a writ directed to the lord treasurer and barons of the exchequer , upon a complaint of some accomptant , commanding them to allow him such sums , as he hath by vertue of his office lawfully and reasonably expended . register of writs , fol. . b. allodium . see fee. alluminor ( from the fr. allumer , to lighten or kindie ) is used for one , who by his trade coloureth or paints upon paper or parchment . and the reason is , because lie gives light and ornament by his colours to the letters , or other figures coloured . the word is used an. rich. . cap. . now we call him a limner . almner or aumoner ( elecmosynarius ) is an officer of a king or princes house , whose function is carefully to collect the fragments of meat and victuals , and distribute them every day to the poor ; charitably to visit the sick and leprous , prisoners , poor widows , needy persons , and those that have no constant abode ; likewise to receive , and faithfully distribute cast horses , robes , money , and other things given in alms ; he ought also to excite the king with often admonitions , especially on festival days , to be bountiful in giving alms , and to beseech , that his rich robes may not be given to parasites , maskers , stage-players , or the like , but may go towards the increase of his alms. fleta , lib. . cap. . almsfeoh or aelmesfeoh ( sax. ) i. alms-money ; that is , peterpence anciently paid in england , on the first of august , and given by king ina ; called also romefeoh , romescot , and heorthpening . seldens history of tythes , pag. almoin . see aumone . alnage ( fr. aulnage ) ell-measure , the measuring with an ell. anno edw. . cap. . see alnager . alnager or alneger ( fr. aulner , i. a measurer by the ell ) signifies a sworn publick officer , who by himself or deputy looks to the assize of woollen cloth made through the land , and to the seals for that purpose ordained , anno edw. . stat. . cap. . and 〈◊〉 rich. . cap. . who is accountable to the king for every cloth so sealed in a fee or custom thereunto belonging , rich. . cap. . read of this more , edw. . cap. . — hen. . cap. . — ejusdem , cap. . — ejusdem , cap. . — ejusdem , cap. . — hen. . cap. . — ejusdem , cap. . — edw. . cap. . — ejusdem , cap. . and rich. . cap. . there are now a ternary of officers relating to the regulation of cloathing ; all which , were anciently comprized in the unity of one person . these bear the distinct names of searcher , measurer , and alneger , which last , though it be a tautotological expression ( aulnage and measure , being the same thing denoted in two languages ) yet long usage and custom have brought them to distinct offices , and that which anciently was called alnage , from whence the alnager takes the name , who was no more but measurer in signification , is now become collector of the subsidy granted to the king , by the before recited statutes , still holding the name alnager , because the collection of that subsidy was by edward the third , committed to the charge of the alnager , and he nevertheless not abridged of his measuring and searching , till by his own wilful neglect they became separated , and that by distinct laws . insomuch , as there is now a peculiar measurer , who ought to allow the assize of length and bredth to every particular cloth , made in england and wales : and , because the subjects of this land should not be abused , an office of searching is established by act of parliament , whose officer ought by his seals , judiciously and diligently affixed , to denote the defaults and casual abuses which each particular cloth contains . all these offices were anciently under the cognizance of the alnager ; as you may read at large in a treatise , entituled , the golden fleece , printed anno . see instit . fol. . alodium , in doomsday , signifies a free mannor ; and alodarii , lords of the same . coke on littl. fol. . altarage ( altaragium ) comprehends not onely the offerings made upon the altar , but also all the profit which accrues to the priest by reason of the altar , obventio altaris . northampton , ss . inter ordines sive decreta de termino sancti mich anno eliz . in scaccario remanentes , & in custodia rememoratoris regis inter alia continetur sic . jovis , die nov. upon the hearing of the matter betwixt ralph turner , vicar of west-haddon , and edward andrews , it is ordered , that the said vicar shall have , by reason of the words ( altaragium cum manso competenti ) contained in the composition of the profits assigned for the vicars maintenance , all such things as he ought to have by these words , according to the definition thereof made by the reverend father in god , john bishop of london , upon conference with the civilians , viz. david hewes , judge of the admiralty , bartholomew clark , dean of the arches , john gibson , henry jones , laurence hewes , and edward stanhop , all doctors of the civil law , that is to say , by altaragium , tythes of wool , lamb , colt , calf , pigs , goslings , chickens , butter , cheese , hemp , flax , honey , fruits , herbs , and such other small tythes , with offerings , that shall be due within the parish of west-haddon . and the like case was for norton in northamptonshire , heard in the said court within these two or three years , upon the hearing ordered in the like manner . oblationes sive numinorum , sive panum , tali vel tali altari , vel ex devotione vel ex consuetudine , aut a parochianis , aut ab extraneis factae , altaragii nomine censebantnr . gloss . in mat. paris . alto & basso , or in alto & in basso . pateat universis per presentes quod willielmas tylar de yetton , & thomas gower de aylemestre posuerunt se in alto & in basso in arbitrio quatuor hominum , viz. — de quadam querela pendente inter eos in curia de wyggemore ad sectam praedicti willielms versus praefatum thomam , et praedicti quatuor homines judicaverunt & ordinaverunt quod — dat. apud aylemestre die mercurii prox . post festum conceptionis b. mariae , anno hen. . — ipse prior venit & bogo similiter & ponunt se in gratiam , misericordiam & voluntatem regis de alto & basso , ad quod mandantur turri london , &c. plac. coram rege , hil. edw. . by this is meant , the absolute submission of all differences , small and great , high and low . amabyr . see chevage . ambidexter ( lat ) he that useth his left hand as well as his right ; that plays on both sides : but in the legal acception , it signifies , that juror or embraceor who takes money on both sides for giving his verdiet ; for which he forfeits ten times so much as he takes , edw. . cap. . crompt . just . of p. fol. . b. ame ( kings proclamation , . ) see aume . amenable ( from the fr. amener , i. to bring or lead unto ) others write it amainable , from the fr. main , a hand ) tractable ; that may be led by the hand or governed ; that may be brought or fetched in . it is applied in our law books to a woman that is supposed governable by her husband . amendment ( amendatio ) signifies the correction of an error committed in a process , and espied before or after judgment ; and sometimes after the party seeking advantage by the error . brook , titulo , error and amendment . amerciament ( from the fr. merci , i. misericordia , ) signifies the pecuntary punishment of an offender against the king , or other lord in his court , that is found to be in misericordia , i. to have offended , and to stand to the mercy of the lord. there seems to be a difference between amerciaments and fines : these , as they are taken for punishments , are punishments certain , which grow expresly from some statute ; but amerciaments are arbitrably imposed by affeerors . see kitchin , fol. . and . manwood ( in his first part of forest laws , pag. . ) makes another difference , as if an amerciament were a more easie or merciful penalty , and a fine more sharp and grievous . take his words , if the pledges for such a trespass appear by common summons , and not the defendant himself , then the pledges shall be imprisoned for the defendants default . but otherwise it is , if the defendant himself appear , and be ready in court before the lord justice in eyre , to receive his judgment , and to pay his fine . but if such pledges make default , they shall be amerced , but not fined . the author of the new terms of law saith , that amerciament is most properly a penalty assessed by the peers or equals of the party amerced for an offence done ; for which , he puts himself upon the mercy of the lord : who also mentions an amerciament royal , and defines it to be a pecuniary punishment laid upon a sheriff , coroner , or such like officer of the king , by justices for some offence . ratcliff , baron of the exchequer , hen. . fol. . see misericordia . amortization ( amortizatio , fr. amortissement ) est praediorum translatio in manum mortuam , quod tamen sine venia principis non fiat . jus amortizationis est privilegium seu licentia capiendi in manum mortuam . in the statute de libertatibus perquirendis , anno edw. . the word amortisement is used . see mortmain . amortize ( from the fr. amortir ) is to alien lands or tenements to any corporation , guild or fraternity , and their successors ; which cannot be done without licence of the king , and the lord of the mannor . anno rich. . cap. . see mortmain , and the statute of amortizing lands made tempore edw. . amoveas manum . see ouster le main . an , jour & waste ( annus , dies , & vastum ) look year , day , and waste . ancorage ( ancoragium ) a duty taken of ships for the pool of the haven , where they cast anchor . m. s. arth. trevor ar. for no man can let any anchor fall on the kings ground in any port , without paying therefore to the kings officers appointed by patent . ancestor , ( antecessor ) is well known ; but we make this difference betwixt that and predecessor ; the first is applied to a natural person , as i. s. & antecessores sui ; the other to a body politick or corporate , episcopus winton . & predecessores sui . coke on littl. lib. . cap. . sect. . ancestrel , as homage ancestrel , i. homage that hath been done or performed by ones ancestors . see homage . ancient , ( fr. ancien ) in greys-inn the society consists of benchers , ancients , barrasters , and students , under the bar ; where the ancients are of the more ancient barrasters . in the inns of chancery there are onely ancients , and students , or clerks , and among the ancients , one is yearly the principal , or treasurer . in the middle-temple , ancients are such as are past their reading , and never read . ancient demean or demain , ( vetus patrimonium domini ) is a certain tenure , whereby all the mannors belonging to the crown in the days of saint edward , or william the conqueror , were held . the number and names of which mannors , as of all other belonging to common persons , after a survey made of them , he caused to be written in a book , now remaining in the exchequer , and called dooms-day . and those which by that book appear to have at that time belonged to the crown , and are contained under the title terra regis , are called ancient demesn . kitchin. fol. . of these tenants there were two sorts ; one that held their land frankly by charter , the other by copy of court-roll , or by verge at the will of the lord , according to the custom of the mannor . britton . cap. . numb . . the benefit of this tenure consists in these points . . the tenants holding by charter , cannot be impleaded out of their mannor , or , if they be , they may abate the writ ; by pleading their tenure , before or after answer made . . they are free of toll , for all things , concerning their sustenance and husbandry . . they may not be empannelled upon any enquest . see more in fitz. nat. br. fol. . d. & fol. , &c. by whom it appears , these tenants held originally by ploughing the kings land , plashing his hedges , or such like , towards the maintenance of his houshold ; in which regard , they had such liberties given them , wherein , to avoid disturbance , they may have writs to such as take the duties of toll ; as likewise for immunity of portage , passage , or such like . no lands ought to be accounted ancient demesn , but such as are held in soccage . see monstraverunt and demain . ancienty , ( fr. anciennete , i. ancientnes ) in the statute of ireland , hen. . is used for eldership or seniority . as , the eldest sister can demand no more then her other sisters , but the chief mease by reason of her ancienty . andena , a swath in mowing . see dole . annats ( annates ) are all one with first-fruits . anno hen. . cap. . the reason is , because the rate of first-fruits paid of spiritual livings , is after one years profit . annates more suo appellant primos fructus unius anni sacerdotii vacantis , aut dimidiam eorum partem , says polydor virgil de inven. rerum lib. . cap. . note , annates , primitiae , and first-fruits , are all one . cokes . rep. fol. . see first-fruits . anniented ( from the fr. aneantir , i. to make void ) signifies as much as frustrated or brought to nothing . littleton , lib. . cap. warranty . anniversary days ( dies anniversarii ) were of old those days , wherein the martyrdoms or deaths of saints were celebrated yearly in the church ; or the days whereon , at every years end , men were wont to pray for the souls of their deceased friends , according to the continued custom of roman catholicks ; mentioned in the statute edw. . cap. . and car. . cap. . this was in use among our ancient saxons , as you may see in lib. rames . sect. . annua pensione , is a writ ( now difused ) whereby the king having an annual pension due to him from an abbor or prior , for any of his chaplains , ( whom he should think good to nominate , being as yet unprovided of suffiliving ) demands the same of the said abbot or prior ; and also wills him for his chaplains better assurance , to give him his letters patent for the same . register of writs , fol. , . and fitz. nat. br. fol. . where you may see the names of all the abbeys and priories bound to this , in respect of their foundation or creation . anno domini , is the computation of time from the incarnation of our lord jesus , and is used in publick writings ; sometimes with , and sometimes without the year of the kings reign . as the romans made their computation from the building of the city rome , and the grecians by olympiads : so christians in remembrance of the happy incarnation of our saviour , reckon their time from thence . the day of the moneth , the year of our lord and saviour christ , and the year of the kings reign , are the usual dates of deeds . cokes inst . fol. . annuity ( annuus redditus ) signifies a yearly rent to be paid for term of life , or years , or in fee ; and is also used for the writ that lies against a man for recovery of such a rent . register of writs , fol. . fitz. nat. br. fol. . annuity is otherwise defined to be a certain sum of money granted to another in fee-simple , fee-tail , for life or years , to receive of the grantor or his heirs , so that no free-hold be charged therewith ; whereof a man shall never have assize , or other action , but a writ of annuity . doctor and student , dial. . cap. . shews several differences between a rent , and an annuity , whereof the first is , that every rent , be it rent-charge , rent-service , or rent-seek , is issuing out of land ; but an annuity chargeth the person onely , that is to say , the grantor or his heirs that have assets by descent . the second is , that for the recovery of an annuity , no action lies , but onely the writ of annuity against the grantor , his heirs , or successors ; but of a rent , the same actions lie as do of land , as the case requires . the third difference is , that an annuity is never taken for assets , because it is no free-hold in law , nor shall it be put in execution upon a statute merchant , statute staple or elegit , as a rent may . dyer , fol. . numb . . coke on littl. fol. . b. anoisance alias nusance ( fr. nuisance , i. hurt or offence ) hath a double signification , being used as well for any hurt done , either to a publick place , as high-way , bridge , or common river ; or to a private , by laying any thing that may breed infection , by incroaching , or such like means : as also , for the writ that is brought upon this transgression ; whereof see more in nusance . the word anoisance i finde anno hen. . cap. . ansel weight . see aunsel . apostata capiendo , is a writ ( now out of use ) that lay against one , who having entred and professed some order of religion , brake out again and wandered the countrey , contrary to the rules of his order . the form whereof , with other circumstances , you shall finde in the register of writs , fol. . & . and fitz. nat. br. fol. . apparator ( anno hen. . cap. ) a messenger that cites offenders to appear in the spiritual court , and serves the process thereof . apparlement ( of the fr. pareillement , i. likewise , or in like manner ) signifies a resemblance , or likelihood ; as apparlement of war , mentioned in our statutes . appeal ( fr. appel ) is as much as accusatio with the civilians . for , as in the civil law , cognizance of criminal causes , is taken either upon inquisition , denunciation , or accusation ; so in ours , upon indictment or appeal : indictment comprehending both inquisition and denunciation ; and accusation or appeal , is a lawful declaration of another mans crime ( which by bracton must be felony at least ) before a competent judge , by one that sets his name to the declaration , and undertakes to prove it , upon the penalty that may ensue of the contrary . for the whole course of an appeal , i must refer you to bracton , lib. . tract . . cap. . smith de republ. angl. lib. cap. . britton , cap. , . and to stamf. pl. coron . lib. . cap. , , &c. an appeal is commenced two ways , either by writ or by bill ; appeal by writ is , when a writ is purchased out of the chancery , by one to another ; to this end , that he appeal a third of some felony committed by him , finding pledges that he shall do it , and deliver this writ to the sheriff to be recorded . appeal by bill is , when a man of himself gives up his accusation in writing to the sheriff or coroner , offering to undergo the burden of appealing the person therein named . this point of our law , among others is drawn from the normans , which appears plainly by the grand customary , cap. . where there is set down a solemn discourse , both of the effects of this appeal , viz. the order of the combat , and of the tryal by inquest ; which by our law , is in the choice of the defendant . see new book of entries , verbo appel . book of assizes , fol. . and part. inst . fol. . appeal of maihem , is an accusing of one that hath maimed another . but that being no felony , the appeal thereof is but in a manner an action of trespass ; because there is nothing recorded but damages . bracton calls this appellum de plagiis & mahemio , and writes a whole chapter of it , lib. . tract . . cap. . see coke , vol. . fol. . a. in king johns time , there is recorded an appeal against a jew , qui fecit ementulari quendam nepotem suum . appeal of wrong imprisonment , is used by bracton for an action of wrong imprisonment , lib. . tract . . cap. . appeal ( from appello , to call , because appellans vocat reum in judicium , coke on littl. lib. . cap. . ) is divers times used in our common law , as in the civil ; which is for a removing of a cause from an inferior judge to a superior ; as appeal to rome , anno hen. . cap. . and eliz. cap. . so s. paul appealed from festus to caesar . but more commonly for the private accusation of a murderer , by a person who had interest in the party murdered , or of any felon by one of his complices in the fact. see approver , and see coke on littl. fol. . b. appellor or appealor , is he , who hath committed some felony which he confesses , and now appeals , that is , accuses others who were complices with him . and those that are so appealed are called appealees . anno edw. . see approver . appendant ( appendens ) is an inheritance belonging to another that is more worthy ; as accessorium principali with the civilians , or , adjunctum subjecto with the logicians . an hospital may be appendant to a mannor , fitz. nat. br. fol. . common of fishing appendant to a freehold , westm . . c. . anno edw. . appendants are ever by prescription . see coke on littl. fol. . b. appennage or apennage ( fr. ) the portion of the kings younger children in france , a childes part . they have in france a fundamental law , which they call the law of apennages , whereby the kings younger sons have dutchies , counties , or baronies , granted unto them , and their heirs , or heirs-males of their bodies , the reversion reserved to the crown , and all matters of regality , as coynage , levying taxes , and the like . it is derived ab appendendo , or from the german word avanage , which signifies a portion . see gerard du heylan , & spel. glossar . in voce appennagium . appertinances ( pertinentia ) are things both corporal , belonging to another thing , as to the more principal ; as hamlets to a cheif mannor , common of pasture , turbary , piscary , and such like ; and incorporeal , as liberties , and services of tenants , brit. cap. . where it may be observed , that he accounts common of pasture , turbary , and piscary , to be things corporal . see common . apportionment ( apportionamentum ) is a dividing of a rent into parts , according as the land ( whence the whole rent issues ) is divided among two or more . as if a man have a rent-service issuing out of land , and he purchaseth part of the land , the rent shall be apportioned , according to the value of the land. so if a man let lands for years , reserving rent , and after a stranger recovers part of the land , the rent shall be apportioned . but a rent-charge cannot be apportioned , nor things that are entire ; as if one hold land by service , to pay to his lord yearly at such a feast , a horse , or rose ; there , if the lord purchase part of the land , this service is totally extinct ; because such things cannot be divided without hurt to the whole . yet in some cases a rent-charge shall be apportioned , as if a man hath a rent-charge issuing out of land , and his father purchaseth part of the land charged in fee , and dies , and this parcel descends to his son , who hath the rent-charge ; there this charge shall be apportioned , according to the value of the land ; because such portion of the land , purchased by the father , comes not to the son by his own act , but by descent and course of law. common appendant is of common right , and severable ; and though the commoner , in such case , purchase parcel of the land , wherein the common is appendant , yet the common shall be apportioned . but in this case , common appurtenant , and not appendant , by such purchase is extinct . coke , lib. . fol. . apposer . see forein apposer . apprendre , ( fr. ) as fee or profit apprendre ( anno & edw. . cap. . ) fee or profit to be taken or received . apprentice , ( fr. apprenti , and that from apprendre , to learn , whence their apprentisage , and our apprentiship ) is one that is bound by covenant to serve a tradesman or artificer , a certain time ( for the most part seven years ) upon condition , that the master shall , during that time , instruct him in his art or mystery . sir tho. smith ( in his rep. angl. lib. . cap. . ) says , they are a kinde of bondmen , differing onely , in that they are servants by covenant , and for a time . anciently barrasters were called apprentices of the law. as appears by mr. seldens notes upon fortescu , p. . so the learned plowden stiled himself . sir henry finch in his nomotechnia writes himself apprentice del ley ; and sir edward coke in his part. instit . fol. . says apprenticii legis , in pleading , are called homines consiliarii , & in lege periti . and in another place , — apprentices , and other counsellors of law. appropriation ( appropriatio , from the fr. approprier , i. aptare , accomodare ) signifies the severing of a benefice ecclesiastical ( which originally , and in nature is , juris divini , & in patrimonio nullius ) to the proper and perpetual use of some religious house , bishoprick , college , &c. so called , because parsons , not being ordinarily accounted ( domini ) but usufructarii , having no right of fee-simple , are by reason of their perpetuity , accounted owners of the fee-simple , and therefore called proprietarii . before the time of richard the second , it was lawful ( as it seems ) to appropriate the whole fruits of a benefice to an abbey or priory , they finding one to serve the cure. but that king ordained , that in every licence of appropriation made in chancery , it should expresly be contained , that the diocesan of the place should provide a convenient sum of money to be yearly paid out of the fruits , towards the sustenance of the poor in that parish , and that the vicar should be well and sufficiently endowed , anno rich. . cap. . to make an appropriation ( after licence obtained of the king in chancery ) the consent of the diocesan , patron , and incumbent are necessary , if the church be full ; if it be void , the diocesan , and the patron , upon the kings licence , may conclude it . plowden in grendons case , fol. . to dissolve an appropriation , it is enough to present a clerk to the bishop , and he to institute , and induct him : for that once done , the benefice returns to the former nature , fitz. nat. br. . and coke , lib. . fol. . approvement ( anno eliz. cap. . ) is the same with improvement ; but it is more particularly used for the enclosing part of a common by the lord of the mannor , leaving sufficient nevertheless for the commoners . approver ( approbator ) is one , that confessing felony committed by himself , appeals or accuses others to be guilty of the same ; and is so called , because he must prove that which he hath alleaged in his appeal . this proof is by battle , or by the countrey , at his election that appealed . the form of this accusation you may in part gather by cromptons justice of peace , fol. . & . that it is done before the coroner , either assigned to the felon by the court , to take and record what he saith , or else cal●ed by the felon himself , and required for the good of the commonwealth to do so . the approvers oath , when he begins the combat , you may see in the last page of crompton , as also the proclamation by the herauld . of the antiquity of this law , read at large bracton , lib. . tract . . cap. . & . stamf. pl. cor. lib. . cap. . cum seq . and part. instit . fol. . see prover . approvers of the king ( approbatores regis ) are those that have the letting of the kings demeans in small mannors , to his best advantage . anno hen. . stat. . and in the statute of edw. . cap. . the sheriffs call themselves the kings approvers . approve ( approhare ) to augment or ( as it were ) to examine to the utmost . for example , to approve land , is to make the best benefit of it by increasing the rent , &c. anno hen. . cap. . bailiffs of lords in their franchises , are called their approvers ; and by what follows , you may see what kinde of approvers or improvers were formerly in the marches of wales , authorized by the prince thereof . richard de lyngein emprover desuth commission nostre tre dout seigneur le prince deins le counte de hereford , & le marches adjoygnant , a toutz y ceux qui cests letters verront ou orront , salutz . sachez moy aver grant a une janin de brompton loyal & leige home nostre seigneur le roy , & a ses servants , de vendre & acheter bests & berbez deins le counte de hereford , & le marche adjoygnant sans empechement ou arrest de nulluy , come loyal & leige hommes , a son propre use & encrese , sans refreshmente des rebels de gales . et cest ma lettre serra son garrant . en tesmoignage de quel chose a y ceste jay mise mon seal . don a lemestre le xi jour de julet le ann de regne le roy henric. le quart apres le conquest , quarte . — see part. instit . fol. . — quod nullus libere tenens infra baroniam illam se appruira posset de vasto suo , &c. aquage ( aquagium , q. aquae agium , i. aquae ductus & aquaegangium ) — non liceat alicui de caetero facere dammas vel fordas aut alia impedimenta in aliquibus landeis watergangiis , fossatis sive aquagiis eommunibus in marisco praedicto . ordinatio marisci de romeney facta tempore hen. . & edw. . pag. . see watergage . arbitrator ( lat. ) is an exttaordinary judge or commissioner in one or more causes , between party and party , chosen by their mutual consents . this arbitrement is either general , that is , including all actions , quarrels , and demands , or special , which is or one or more matters , facts , or things specified . the civilians make a difference between arbiter and arbitrator : for though they both ground their power upon the comprimise of the parties , yet their liberty is divers . for arbiter is tied to proceed and judge according to law , with equity intermingled ; arbitrator is permitted wholly to his own discretion , without solemnity of process or course of judgment , to hear or determine the controversie committed to him ; so it be juxta arbitrium boni viri . see alto & basso . arbitrement . see arbitrator . arches court ( curia de arcubus ) is the chief and ancientest consistory that belongs to the archbishop of canterbury , for debating spiritual causes ; and is so called from bow-church in london , ( dedicated to the blessed virgin ) where it was kept . and the church is so called of the fashion of the steeple or clochier thereof , whose top is raised of stone-pillars , built arch-wise , like so many bent-bows . the judge of this court is termed the dean of the arches , or the official of the arches court. dean of the arches , because with this officialty is commonly joyned a peculiar jurisdiction of thirteen parishes in london , termed a deanry , being exempted from the authority of the bishop of london , and belonging to the archbishop of canterbury , of which , the parish of bow is one , and the chief , because the court was there kept . the jurisdiction of this judge is ordinary , and extends it self through the whole province of canterbury . so that upon any appeal made , he forthwith , and without any further examination of the cause , sends out his citation to the appealee , and his inhibition to the judge , from whom the appeal was made . of this read more in historia de antiq. eccles . britan. and part. instit . fol. . archive ( archivum , from arca , a press or chest . ) . the rolls , or a place wherein ancient records , charters , and evidences ( that belong to the crown and kingdom ) are kept ; also the chancery or exchequer office. armes ( arma ) in the understanding of law , are extended to any thing that a man wears for his defence , or takes into his hands , or useth in his wrath to cast at , or strike another . crompt . just . of peace , fol. . a. so armorum appellatio , non utique scuta & gladios , & galeas significat , sed & fustes & lapides . armes are also , what we call in latin insignia , ensigns of honor. argentum dei. gods-penny , i. earnest money , or money given in earnest : in lincolnshire called erles . arpen or arpent ( fr. ) an acre or furlong of ground , the most ordinary one , called l'arpent de france , is one hundred perches square , after eighteen foot to the perch . this word is often found in doomsday , quatuor arpenni vineae noviter plantatae . tit. middlesex . array ( an old fr. word ) signifies the ranking or setting forth a jury or enquest of men , empannelled upon a cause . hen. . cap. . hence the verb to array a pannel . an. . h. . cap. . and old nat. br. fol. . that is , to set forth the men empannelled one by another . the array shall be quashed , ibidem . by the statute , every array in assize ought to be made four days before . br. tit . pannel . num . . to challenge the array . kitchin , fol. . see challenge . to lead and conduct persons armed and arrayed , car. . cap. . arrayers ( arraiatores ) is used in the statute , ri 〈…〉 cap. . for such officers , as had care of the soldiers armor and see them duly accoutred in their kindes . such were the commissioners of array , appointed by king charles the first , in the year . edw. dei gratia rex angliae , dominus hib. & dux aquit . dilectis & fidelibus suis johanni de occlesthorp & johanni de fenton , electoribus & arraiatoribus hominum in wapentachio de barkeston salutem . cum ad repellendam scotorum maliciam qui regnum nostrum hostiliter sunt ingressi , homicidiam , depredationes , incendia & alia mala — citia perpetrando versus partes marchiae scotiae , &c. inde scoti cum toto posse suo ut pro certo didiscimus propè ci●itatem nostram karleoli ista die martis se congregare proponunt , &c. nos considerantes periculum , &c. omnes homines defensibiles & potentes ad pugnandum ejusdem wapentagii tam milites quam alii , &c. i. me ipso apud north-alverton xiii die junii , anno regni nostri primo . arraine or arraigne ( from the french arranger , i. to set a thing in order or in his place ) hath the same signification in law : for he is said to arraine a writ of novel disseisin , who prepares and fits it for tryal before the justices of the circuit , old nat. br. fol. . littleton ( pag. . ) useth the word in the same sence , viz. the lease arraineth an assize of novel disseizin . to arraign the assize , is to cause the tenant to be called , to make the plaint , and to set the cause in such order , as the tenant may be enforced to answer thereto , coke on littl. fol. . b. also a prisoner is said to be arraigned , when he is endicted and brought forth to his tryal . arraigned within the verge upon murder . stamf. pl. cor fol. . the manner of this arraignment you may read in sir thomas smith de rep. angl. lib. . cap. . — the learned spelman is of opinion , it should be written arrame , from arramare , and that from the old french arramir , i. jura●e , promittere , solenniter profiteri . arrearages ( from the fr. arriere , retrò ) the remain of an accompt , or a sum of money remaining in the hands of an accomptant . it is sometimes used more generally for any money unpaid at a due time ; as arrearages of rent . arrentation ( from the span. arrendare , q. ad certum reditum dimittere , ) ordin . forestae , edw. . cap. . signifies the licencing an owner of lands in the forest , to enclose them , ( bassa haya & parvo fossato , i. with a low hedge , and small ditch ; which is according to the assize of the forest ) under a yearly rent . saving of the arrentations , is saving power to give such licences for a yearly rent . arrest ( fr. a stop or stay , and is metaphorically used for a decree , or determination of a cause debated , or disputed pro and con ; as arrest du senat. i. placitum curiae . ) with us arrest is taken for the execution of the command of some court or officer of justice , and a man stopped , staid , or apprehended for debt , &c. is said to be arrested ; which may be called the beginning of imprisonment . to move or plead in arrest of judgment , is to shew cause why judgment should be staid , notwithstanding the verdict be given . to plead in arrest of taking the enquest upon the former issue , is to shew cause why an enquest should not be taken , &c. brook , tit . repleader . for preventing arrests of judgments , see the statute , & car. . cap. . arrestandis bonis ne dissipentur , is a writ which lies for him , whose cattle or goods are taken by another , who during the controversie , doth , or is like to make them away , and will hardly be able to make satisfaction for them afterward , register of writs , fol. . arrestando ipsum , qui pecuniam recepit ad proficiscendum in obsequium regis , &c. is a writ which lies for the apprehension of him that hath taken prest-money for the kings wars , and hides himself when he should go register of writs , fol. . b. arresto facto super bonis mercatorum alienigenorum , &c. is a writ which lies for a denizen , against the goods of strangers of any other countrey , found within this kingdom , in recompence of goods taken from him in that countrey , after he hath been denied restitution there . register of writs , fol. , a. this among the ancient civilians was called clarigatio , now barbarously reprisalia . arretted , ( arrectatus , quasi , ad rectum vocatus ) that is convented before a judge , and charged with a crime . it is sometimes used for imputed , or laid unto ; as , no folly may be arretted to one under age . littleton , cap. remitter . chaucer useth the verb arretteth , i. layeth blame , as it is interpreted . bracton says , ad rectnm babere malefactorem , i. to have the malefactor forth coming , so as he may be charged and put to his tryal , lib. . tract . . cap. . and in another place , rectatus de morte hominis , charged with the death of a man. arrura , — hoc scriptum factum apud sutton courtenay , dic dec. edw. . inter dominum hugonem de courtenay ex parte una & ric. de stanlake & johannam uxorem ejus ex altera , testatur , quod idem dominus hugo , in excambium — remisit — eisdem ricardo & johannae — omnimoda opera , viz. arruras , messiones & cariagia , & alia quaecunque opera — et ipsi non dabunt medfee , &c. penes tho. wollascot de sutton praedict . ar. q. if not here used for ploughing and harrowing . arthel , ( an. h. . cap. . — and that no person or persons shall hereafter , at any time , cast any thing into any court within wales , or in the lordships marchers of the same , by the mean or name of an arthel ; by reason whereof the court may be letted , disturbed , or discontinued for that time , upon pain of , &c. ) is a british word , and is more truly written arddelw , which the southwales men write arddel , and signifies ( according to dr. davies dictionary ) astipulari , asserere . vindicare ; assertio , vindicatio ; anglicè avouch . example , o delir dyn , ' ai ledrad yn ei law rhaid iddo geifio arrdelw cyfreithlon , i fwrw ei ledrad oddiwrtho . i. it a man be taken with stoln goods in his hands , he must be allowed a lawful arddelw ( vouchee ) to cleer him of the felony . which is part of the law of howel dda ; but probably was so abused in henry the eighths time , by the delay of , or exemption of felons , and other criminals from , justice , that provision by this statute was made against it . thus explicated by the learned meredith lloyd esquire articles of the clergy ( articuli cleri ) are certain statutes made touching persons and causes ecclesiastical . anno edw . and anno edw. . stat. . assart , ( fr. essarter , to glade or make glades in a wood , to make plain , to grub up or clear a ground of bushes , shrubs , &c. ) is ( according to manwood , cap. . numb . . ) an offence committed in the forest , by plucking up those woods by the roots , which are thickets , and cover for the deer , and by making them plain as arable land ; which is the greatest offence or trespass that can be done in the forest , to vert or venison , containing as much or more then waste . for whereas waste of the forest , is but the felling and cutting down the coverts , which may grow again : assart is a plucking them up , and destroying them ; which is confirmed out of the red book in the exchequer , in these words , assarta verò occasiones nominantur , quando forestae nemora vel dumeta , pascuis & latibulis ferarum oportuna , succiduntur : quibus succisis & radicitus avulsis , terra subvertitur & excolitur . and again out of register of writs , fol. . in the writ ad quod damnum , sent out in case where a man sues for a licence to assart his grounds in the forest , and to make it several for tillage . so that it is no offence , if done with licence . to this bracton may be added , ( lib. . cap. . ) who saith , that these words boscus efficitnr assartum , signifie as much as redactus ad culturam . of this you may read more in cromp. jursid . fol. . and in charta de foresta , anno hen. . cap. . where it is written assert , not assart . and in manwood , part . . pag. . that which we call assartum , is elswhere termed disboscatio . quietus de essartis we finde in a charter of priviledge granted by henry the first , to the abbot of rames . sect. . and in pat. edw. . pag. . m. . — et quibusdam sartis , quae sartaverunt homines ipsius ecclesiae , &c. assart was also anciently used for a parcel of land assarted , as appears by this charter of roger earl of mortimer . sciant praesentes & futuri , quod ego rogerus de mortuo mare dedi & concessi ade pistori pro servitio suo tresdecem acras terrae super mughedone inter pratum quod fuit petri budelli & viam quae vadit per medium mughedone . dedi etiam eidem ade duo asarta en la hope , quae appellantur ordrichesruding & aldicheruding , in quibus asartis continentur quinque acrae ad eandem mensuram tresdecem acrarum super mughedone . ad tenendum de me & haeredibus meis sibi & haeredibus suis in feo do & haereditate libere & quiete , reddendo inde annuatim mihi & haeredibus meis ille & haeredes sui duos solidos ad festum sancti michael . pro omni servitio , salvo servitio domini regis . ut autem haec mea donatio & concessio firma sit & stabilis , eam , hac cartā meā figillo meo munitâ , confirmavi . hi is testibus , ade salvag . walt. de novo menul . &c. sine dat . penes tho. bridgwater , gen. assault ( assultus ) is a violent kinde of injury offered to a mans person , of a higher nature then battery ; for it may be committed by offering a blow , or by a terrifying speech , ( lamb. eiren. lib . cap. . ) as to rebuke a collector with foul words , so that he departed for fear without doing his office , was taken for an assault . to strike at a man , though he were neither hurt nor hit with the blow , was adjudged the like . lib. ass . plea. . for assault does not always necessarily imply a hitting , or blow ; because in trespass for assault and battery , a man may be found guilty of the assault , and excused of the battery , edw. . cap. . the feudists define it thus , assultus est impetus in personam aut locum , sive hoc pedibus fiat , vel equo aut machinis aut quacunque alia re assiliatur . zasius de feud . pag. . num . . assach or assath ( an. h. . cap. . ) was a strange kinde of purgation used of old in wales , by the oaths of men. for so i finde it explicated in an ancient m. s. assach est un jur. de homes in gales , and is now abrogated . assay of measures and weights ( from the fr. essay , i. a proof or tryal ) is the examination used by the clark of the market . register of writs , fol. . — ac assisam & assaiam panis , vini & cervisiae . paten . hen. . tho. marrow . assaier of the king ( assaisiator regis , fr. assayeur ) is an officer of the mint for the due tryal of silver , indifferently appointed between the master of the mint , and the merchants that bring silver thither for exchange . anno hen. . cap. . vessels of gold shall be assayed . anno edw. . cap. . and car. . cap. . mandatum est will. hardel , clerico , quod convocatis in prasentia sua omnibus monetariis , assaisiatoribus , custodibus , operariis & aliis ministris de cambiis regis london . & cantuar. per visum & testimonium illorum provideat , quod tot & tales operarii sint in praedictis cambiis , qui sufficiant ad operationes regias faciendas , ne rex pro defectu hujusmodi ministrorum dampnum incurrat . t. apud wudstoke , junii . claus . hen. . m. . assembly unlawful , is the meeting of three or more persons to do an unlawful act , though they do it not . lamb. eiren. lib. . cap. . see unlawful assembly . assessor fleta , lib. . cap. . useth it quasi , ordinator , collocator , dispositor ) we now use it for him that assesseth publick taxes ; as two inhabitants in every parish were assessors for the royal ayd , that is , rated every person according to the proportion of his estate . anno & car. . cap. . also an officer in the presbyterian assemblies . assets ( fr. assez , i. satis ) signifies goods enow to discharge that burden , which is cast upon the executor , or heir , in satisfying the testators or ancestors debts , or legacies . in brook , titulo , assets par descent , you shall finde , that whoever charges another with assets , charges him with having enough descended , or come to his hands to discharge that which is in demand . of this there are two sorts , assets per descent , and assets enter mains . the first is , where a man enters into bond , and dies seised of lands in fee-simple , which descend to his heirs , and are therefore chargeable as assets in his hands : but if the heir alien the lands , before the bond be put in suit , he is discharged . assets enter mains , is when a man dies indebted , leaving to his executors sufficient to discharge his debts and legacies ; this is called assets in their hands . assign ( assignare ) hath two significations ; one general , as to appoint a deputy , or to set over a right to another ; in which , britton ( fol. . ) saith , this word was first brought into use in favor of bastards , because they cannot pass under the name of heirs , were therefore comprised under that of assignes . the other special , as to point at , or set forth , viz. to assign error , is to shew in what part of the process error is committed . to assign ●false judgment , is to declare how and where the judgment is unjust . to assign a false verdict . old nat. br : fol. , , & . to assign waste , is to shew , wherein especially the waste is committed . register of writs , fol. . assign in the general signification is used , anno edw. . and hen. . cap. . in these words , justices assigned to take assizes . and the substantive assignment hath the same signification ; as the assignment of a lease , is the setting over , or transferring the lessees interest to another . assignee , is he that is deputed or appointed by another to do any act , or perform any business , or enjoy any commodity ; and he may be so , either by deed , or in law. assignee by deed , is when a lessee of a term , sells and assigns the same to another , that other is his assignee by deed. assignee by law , is he whom the law so makes , without any appointment of the person ; as an executor is the assignee in law to the testator , who dies possessed of a lease made to him and his assignes . perkins ( tit . grants ) says , an assignee is he that possesses , or enjoys a thing in his own right ; and depty , is he that does it in the right of another . assise of mort d'auncester ( assisa mortis antecessoris ) lies where my father , mother , brother , sister , uncle , aunt , &c. died seised of lands , tenements , rents , &c. that he had in fee-simple , and after his death a stranger abates : and it is good as well against the abator , as any other in possession . how likewise this is extended , see bracton , lib. . tract . . per totum . britton , cap. . f. nat. br. fol. . register of writs , fol. . assise of darrein presentment ( assisa ultimae praesentationis ) lies where i or my ancestor have presented a clerk to a church , and after ( the church being void by his death , or otherwise ) a stranger presents his clerk to the same church , in my disturbance . and how otherwise this writ is used , see bracton , lib. . tract . . register of writs , fol. . f. nat br. fol. . assise de utrum ( assisa utrum ) lies for a parson against a lay-man , of a lay-man against a parson , for land or tenement doubtful , whether it be lay-fee , or free-alms . and of this s●c bracton , lib. . tract . . cap . & seq . britton , cap. . the reason why these writs are called assises , may be divers . first , because they settle the possession , and so an outward right in him that obtains by them . secondly , they were originally executed at a certain time and place formerly appointed . for by the norman law , the time and place must be known forty days before the justices sit on them : and by our law there must be likewise fifteen days of preparation , except they be tried in the standing courts at westminster , as appears by f. nat. br. fol. . d , 〈◊〉 . lastly , they may be called assises , because they are tried most commonly by especial courts , set and appointed for the purpose , as may be well proved , not onely out of the customary of normandy , but our books also : which shew , that in ancient times justices were appointed by special commission , to dispatch controversies of possession , one or more , in this or that onely county , as occasion fell out , or disseisins were offered , and that as well in term time , as out of term : whereas of later days , we see that all these commissions of assises , of eyr , of oyer and terminer , of goal-delivery , and of nisi prius , are dispatched all at one time , by two several circuits in the year , out of term , and by such as have the greatest sway of justice , being all of them the kings justices of either bench , barons o● the exchequer , or serjeants at law. assise , in the second signi sication , ac oding to littleton , is used for a jury . for ( to use his own example ) it is set down in the beginning of the record of an assise of novel disseisin , assisa venit recognitura , which is as much as to say , juratores veniunt recognituri . he gives this reason why the jury is called an assise , because , by writ of assise , the sheriff is commanded , quod faciat duodecim liberos & legales homines de viceneto , &c. videre tenementum illud , & nomina eorum imbrevtari , & quod summoneat eos per bonas summonitiones , quod sint coram justiciariis , &c. parati inde facere recognitionem , &c. this is ( as if he should have spoken shorter ) metonymia effecti . for they are called the assises , because they are summoned by vertue of the writ so termed . and yet the jury summoned upon a writ of right , is likewise called the assise , as himself there confesseth . which writ of right is not an assise ; but this may be said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or abusively so termed . assise in this signification is divided in magnam & parvam . glanvile , lib. . cap. & , &c. and britton , cap. . where it appears , wherein the great assise differs from the petit assise . the former four kindes of assises used in actions onely possessory , are called petit assises , in respect of the grand assise . for the law of fees is grounded upon two rights : one of posseshon , the other , of property . and as the grand assise serves for the right of property ; so the petit assise serves for the right of possession . horns mirror of justices , lib. . cap. de novel disseisin . assise in the third signification , according to littleton ; is an ordinance or statute of assise ; as the statute of bread and ale made anno hen. . is termed the assise of bread and ale ( assisa panis & cervisiae ) reg. of writ , fol. . b. assise of the forest ( assisa de foresta ) is a statute or condition , touching orders to be observed in the kings forest . manwood , part . . pag. . crompton in the court of justices of the forest , per totum , fol. . & seq . and the assise of the king , anno edw. . stat. . called the statute for view of frank-pledge . and these are called assises , because they set down and appoint a certain measure , rate , or order in the things they concern . of assise , in this signification , glanvile also speaks , lib. . cap. . in fine . generaliter verum est quod de quolibet placito quod in comitatu deducitur & terminatur , misericordia quae inde provenit , vicecomiti debetur . quae quanta sit , per nullam assisam generalem determinatum est . and thus much touching littletons division . but if we mark well the writers of the law , we shall finde this word ( assise ) more diversly used , then this author hath noted . for it is sometime used for the measure or quantity it self , ( and that per metonymiam effecti ) because it is the very scantline described or commanded by the ordinance : for example , we say , when wheat , &c. is of this price , then the bread , &c. shall be of this assise . this word is farther taken , for the whole process in court upon the writ of assise , or for some part thereof , as the issue or verdict of the jury . for example , assises of novel disseisin , &c. shall not be taken , but in their shires , and after this manner , &c. mag. char. cap. . and so it seems to signifie , westm . . cap. . anno edw. . in these words , let the disseisor alleage no false exceptions , whereby the taking of the assises may be deferred , &c. and anno edw. . stat. . if it be found by assise ; the assise is arraigned ; to aver by the assise ; the assise by their default shall pass against them . and also anno hen. . cap. . assises awarded by default of the tenants , &c. lastly , by merton , cap. . anno hen. . certified by the assise ; quit by the assise , &c. and in this signification glanvile calls it magnam assisam domini regis : quae ex duodecim ad minus legalium hominum sacramentis consistit , l. . c. . bracton uses it in like sort , as , assisa cadit in transgressionem , & assisa cadit in perambulationem l. . c. , . fleta defines an assise , in this signification , thus . assisa in jure possessorio , est quaedam recognitio duodecim hominum juratorum , per quam justiciarii certiorantur de articulis in brevi contentis . and assise also , thus signifying , is said sometime to pass ( per modum assisae ) and sometime in modum juratae ; in manner of an assise , when onely the dissesin in question , is put to the tryal of the twelve ; in manner of a jury , when any exception is objected to disable the interest of the disseisee , and is put to be tryed by the twelve , before the assise can pass . assise in this signification , is taken four ways , old nat. br. fol. . the first is assise at large , which is taken as well upon other points , as upon the disseisin . for example , where an infant brings an assise , and the deed of his ancestor is pleaded , whereby he claims his right or founds his title , then the assise shall be taken at large : that is , the jury shall enquire not onely whether the plaintiff were disseised , or not , by the tenant , but also of these points , viz. whether his ancestor were of full age , of good memory , and out of prison , when he made the deed , pleaded . another example , you may read in littleton , cap. estates upon condition . the second manner is , when the tenant , as it were , setting foot to foot with the demandant , without farther assay of measures and weights ( from the fr. essay , i. a proof or tryal ) is the examination used by the clerk of the market . register of writs , fol. . — ac assisam & assaiam panis , vini & cervisiae . paten . hen. . tho. marrow . assayer of the king ( assaisiator regis , fr. assayeur ) is an officer of the mint for the due tryal of silver , indifferently appointed between the master of the mint , and the merchants that bring silver thither for exchange . anno hen. . cap. . vessels of gold shall be assayed . anno edw. . cap. . and car. . cap. . mandatum est will. hardel , clerico , quod convocatis in praesentia sua omnibus monetariis , assaisiatoribus , custodibus , operariis & aliis ministris de cambiis regiis london . & cantuar. per visum & testimonium illorum provideat , quod tot & tales operarii sint in praedictis cambiis , qui sufficiant ad operationes regias faciendas , ne rex pro defectu hujusmodi ministrorum dampnum incurrat . t. apud wudstoke , junii , claus . hen . m. . assembly unlawful , is the meeting of three or more persons to do an unlawful act , though they do it not . lamb. eiren. lib. . cap. . see unlawful assembly . assessor ( fleta , lib. . cap. . useth it quasi , ordinator , collocator , dispositor . ) we now use it for him that assesseth publick taxes ; as two inhabitants in every parish were assessors for the royal ayd , that is , rated every person according to the proportion of his estate . an. & car. . cap. . also an officer in the presbyterian assemblies . assets ( fr. assez , i. satis ) signifies goods enow to discharge that burden , which is cast upon the executor or heir , in satisfying the testators or ancestors debts , or legacies . in brook , titulo , assets par descent , you shall finde , that whoever charges another with assets , charges him with having enough descended , or come to his hands to discharge that which is in demand . of this there are two sorts , assets per descent , and assets enter mains . the first is , where a man enters into bond , and dies seised of lands in fee-simple , which descend to his heirs , and are therefore chargeable as assets in his hands : but if the heir alien the lands , before the bond be put in suit , he is discharged . assets enter mains , is , when a man dies indebted , leaving to his executors sufficient to discharge his debts and legacies ; this is assets in their hands . assign ( assignare ) hath two significations ; one general , as to appoint a deputy , or to set over a right to another ; in which , britton ( fol. . ) saith , this word was first brought into use in favor of bastards , because they cannot pass under the name of heirs , were therefore comprised under that of assignes . the other special , as to point at , or set forth , viz. to assign error , is to shew in what part of the process error is committed . to assign false judgment , is to declare how and where the judgment is unjust . to assign a false verdict . old nat. br. fol. , , & . to assign waste , is to shew , wherein especially the waste is committed . register of writs , fol. . assign in the general signification is used , anno edw. . and hen. . cap. . in these words , justices assigned to take assises . and the substantive assignment hath the same signification ; as the assignment of a lease , is the setting over , or transferring the lessees interest to another . assignee , is he that is deputed or appointed by another to do any act , or perform any business , or enjoy any commodity ; and he may be so , either by deed , or in law. assignee by deed , is when a lessee of a term , sells and assigns the same to another , that other is his assignee by deed. assignee by law , is he whom the law so makes , without any appointment of the person ; as an executor is the assignee in law to the testator , who dies possessed of a lease made to him and his assignes . perkins ( tit . grants ) says , an assignee is he that possesses , or enjoys a thing in his own right ; and deputy , is he that does it in the right of another . assise , is derived from the french , assis , i. assessum , locatum , definitum ) and is diversly used . littleton , cha. rents , says it is aequivocum , and sets down three significations of it . one , as it is taken for a writ , another as it is used for a jury , the third for an ordinance . i. assise is a writ dir●cted to the sheriff for recovery of possession of things immoveable , whereof your self , or ancestors have been disseised ; and this is as well of things corporal , as incorporeal rights , being of four sorts , viz. assise of novel disseisin ( assisa novae disseisinae ) lies where a tenant in fee-simple , fee-tail , or for life , is lately disseised of his lands or tenements , rent-service , rent-seck , or rent-charge , common of pasture , &c. and divers other such like , of which you may read glanvile , lib. . cap. . bracton , lib. . tract . . britton , cap. . reg. of writs , fol. . fitz. nat. br. fol. . westm . . cap. . anno edw. . and to this may aptly be added , the bill of fresh force , which is directed to the officers or magistrates of cities or towns-corporate , being a kinde of assise , for recovery of possession in such places , within forty days after the force , as the ordinary assise is in the county , fitz. nat. br. fol. . assise of mort d'auncester ( assisa mortis antecessoris ) lies where my father , mother , brother , sister , uncle , aunt , &c. died seised of lands , tenements , rents , &c. that he had in fee-simple , and after his death a stranger abates : and it is good as well against the abator , as any other in possession . how likewise this is extended , see bracton , lib. . tract . . per totum . britton , cap. . fitz. nat. br. fol. . reg. of writs , fol. . assise of darrein presentment ( assisa ultimae praesentationis ) lies where i or my ancestor have prsented a clerk to a church , and after ( the church being void by his death , or otherwise ) a stranger presents his clerk to the same church , in my disturbance . and how otherwise this writ is used . see bracton , lib. . tract . . register of writs , fol. . fitz. nat. br. fol. . assise de utrum ( assisa utrum ) lies for a parson against a lay-man , or a lay-man against a parson , for land or tencment doubtful , whether it be lay-fee , or free-alms . and of this see bracton , lib. . tract . . cap. . & seq . britton , cap. . the reason why these writs are called assises , may be divers . first , because they settle the possession , and so an outward right in him that obtains by them . secondly , they were originally executed at a certain time and place formerly appointed . for by the norman law , the time and place must be known forty days before the justices sit on them : and by our law there must be likewise fifteen days of preparation , except they be tried in the standing courts at westminster , as appears by fitz. nat. br. fol. . d , e. lastly , they may be called assises , because they are tried most commonly by especial courts , set and appointed for the purpose , as may be well proved , not onely out of the customary of normandy , but our books also : which shew , that in ancient times justices were appointed by special commission , to dispatch controversies of possession , one or more , in this or that onely county , as occasion fell out , or disseisins were offered , and that as well in term time , as out of term : whereas of later days , we see that all these commissions of assises , of eyr , of oyer and terminer , of goal-delivery , and of nisi prius , are dispatched all at one time , by two several circuits in the year , out of term , and by such as have the greatest sway of justice , being all of them the kings justices of either bench , barons of the exchequer , or serjeants at law. assise , in the second signification , according to littleton , is used for a jury . for ( to use his own example ) it is set down in the beginning of the record of an assise of novel disseisin , assisa venit recognitura , which is as much as to say , juratores veniunt recognituri . he gives this reason why the jury is called an assise ; because , by writ of assise , the sheriff is commanded , quod faciat duodecim liberos & legales homines de viceneto , &c. videre tenementum illud , & nomina eorum imbreviari , & quod summoneat eos per bonas summonitiones , quod sint coram justiciariis , &c. parati inde facere recognitionem , &c. this is ( as if he should have spoken shorter ) metonymia effecti . for they are called the assises , because they are summoned by vertue of the writ so termed . and yet the jury summoned upon a writ of right , is likewise called the assise , as himself there confesseth . which writ of right is not an assise ; but this may be said to be 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , or abusively so termed . assise in this signification is divided in magnam & parvam . glanvile , lib. . cap. & , &c. and britton , cap. . where it appears , wherein the great assise differs from the petit assise . the former four kindes of assises used in actions onely possessory , are called petit assises , in respect of the grand assise . for the law of fees is grounded upon two rights : one of possession , the other , of property . and as the grand assise serves for the right of property ; so the petit assise serves for the right of possession . horns mirror of justices , lib. . cap. de novel disseisin . assise in the third signification , according to littleton , is an ordinance or statute of assise ; as the statute of bread and ale made anno hen. . is termed the assise of bread and ale ( assisa panis & cervifiae ) reg. of writ , fol. . b. assise of the forest ( assisa de foresta ) is a statute or condition , touching orders to be observed in the kings forest . manwood , part . . pag. . crompton in the court of justices of the forest , per totum , fol. . & seq . and assise of the king , anno edw. . stat. . called the statute for view of frank-pledge . these are called assises , because they set down and appoint a certain measure , rate , or order in the things they concern . of assise , in this signification , glanvile also speaks , lib. . cap. . in fine . generaliter verum est quod de quolibet placito quod in comitatu deducitur & terminatur , misericordia , quae in de provenit , vicecomiti debetur : quae quanta sit ; per nullam assisam generalem determinatum est . and thus much touching littletons division . but if we mark well the writers of the law , we shall finde this word ( assise ) more diversly used , then this author hath noted . for it is sometime used for the measure or quantity it self , ( and that per metonymiam effecti ) because it is the very scantline described or commanded by the ordinance : for example , we say , when wheat , &c. is of this price , then the bread , &c. shall be of this assise . this word is further taken , for the whole process in court upon the writ of assise , or for some part thereof , as the issue or verdict of the jury . for example , assises of novel disseisin , &c. shall not be taken , but in their shires , and after this manner , &c. mag. char. cap. . and so it seems to signifie , westm . . cap. . anno edw. . in these words , let the disseisor alleage no false exceptions , whereby the taking of the assises may be deferred , &c. and anno edw. . stat. . if it be found by assise ; the assise is arraigned ; to aver by the assise ; the assise by their default shall pass against them . and also anno hen. . cap. . assises awarded by default of the tenants , &c. lastly , by merton , cap. . anno hen. . certified by the assise ; quit by the assise , &c. and in this signification glanvile calls it magnam assisam domini regis : quae ex duodecim ad minus legalium hominum sacramentis consistit , l. . c. . bracton uses it in like sort , as , assisa cadit in transgressionem , & assisa cadit in perambulationem l. . c. , . fleta defines an assise , in this signification , thus . assisa in jure possessorio , est quaedam recognitio duodecim hominum juratorum , per quam justiciarii certiorantur de articulis in brevi contentis . and assise also , thus signifying , is said sometime to pass ( per modum assisae ) and sometime in modum juratae ; in manner of an assise , when onely the disseisin in question , is put to the tryal of the twelve ; in manner of a jury , when any exception is objected to disable the interest of the disseisee , and is put to be tryed by the twelve , before the assise can pass . assise in this signification , is taken four ways , old nat. br. fol. . the first is assise at large , which is taken as well upon other points , as upon the disseisin . for example , where an infant brings an assise , and the deed of his ancestor is pleaded , whereby he claims his right or founds his title ; then the assise shall be taken at large : that is , the jury shall enquire not onely whether the plaintiff were disseised , or not , by the tenant , but also of these points , viz. whether his ancestor were of full age , of good memory , and out of prison , when he made the deed , pleaded . another example , you may read in littleton , cap. estates upon condition . the second manner is , when the tenant , as it were , setting foot to foot with the demandant , without farther circumstance , pleads directly contrary to the writ , no wrong , no disseisin . the third is , when the tenant alleageth something by exception that must be tried by a jury , before the principal cause can proceed : as if he plead forein release , or forein matter tryable in another county . for , in this case , the justices refer the record to the court of common-pleas , for tryal of the forein pleas , before the disseisin can come to be decussed . of this sort read divers other examples in bracton , lib. . part . . cap . for there are of them ( as he saith , and britton also , cap. . ) both dilatory and peremptory . the fourth and last manner is , assise of right of damages ; that is , when the tenant , confessing an ouster , and referring it to a demurrer in law , whether it were rightly done or not , is adjudged to have done wrong . for then shall the demandant have a writ to recover damages , called an assise to recover damages , as also the whole process . assise , is further taken for the court , place , or time , when and where the writs and processes of the assise are handled or taken : and in this signification assise is general ; as when the justices go their several circuits , with their commission , to take all assises twice in the year , that is called the general assise . it may likewise , in this signification , be special ; as if an especial commission be granted to certain persons ( as was often done in ancient time , bracton , lib. . cap. . ) for taking an assise upon one disseisin or two ; this would be called a special assise . and in this very signification , glanvile uses it , lib. . cap . see cokes , inst . fol. . concerning the general assise , in the most usual signification , thus the learned sir fr. bacon . all the counties of this realm ( says he ) are divided into six circuits , and two learned men are assigned by the kings commission to every circuit , who ride twice a year through those shires allotted to that circuit ; these we call justices or judges of assise , who have five several commissions by which they sit . the first is a commission of oyer and terminer directed to them , and many others of the best account in their circuits . but in this commission the judges of assise are of the quorum ; so as without them , there can be no proceeding . this commission gives them power to deal with treasons , murders , and all manner of felonics and misdemeanors ; and this is their largest commission . the second is of goal delivery , and that onely to the judges themselves , and the clerk of the assise associate ; by this commission they are to deal with every prisoner in goal , for what offence soever he be there . the third commission is directed to themselves onely , and the clerk of assise , to take assises , by which they are called justices of assise ; and the office of these justices , is to do right upon writs called assise , brought before them by such as are wrongfully thrust out of their lands . the fourth commission is to take nisi prius , directed to none but the judgee themselves , and their clerks of assises ; by which they are called justices of nisi prius . the fifth is a commission of peace in every county of their circuit . and all the justices of peace , having no lawful impediment , are bound to be present at the assises , to attend the judges , as occasion shall fall out ; if any make default , the judges may set a fine upon him at their pleasure and discretions . the sheriff of every shire is also to attend in person , or by a sufficient deputy , allowed by the judges , who may fine him , if he fail , &c. see more in sir fr. bacons use of the law , fol. . usque . assisa continuanda , is a writ directed to the justices assigned to take an assise , for the continuance of the cause , in case where certain records alleaged , cannot in time be procured by the party that would use them , reg. of writs , fol. . assisa proroganda , is a writ directed to the justices of assise , for stay of proceeding , by reason of the kings business , wherein the party is employed . reg. of writs , fol. , & . assisors , ( assisores ) sunt qui assisas condunt , aut taxationes imponunt . spelman . in scotland ( according to skene ) they are the same with our jurors , and their oath is this . we shal leil suith say , and na suith conceal , far na thing we may , sa far as we are charg'd upon this assise , be god himself , and be our part of paradise . and as we wil answear to god , upon the dreadful day of dome . association ( associatio ) is a patent sent by the king ( either of his own motion , or at the suit of the plaintiff ) to ●ustices appointed to take assises of novel disseisin , or of oyer and terminer , &c. to take others unto them , as fellows and collegues in that affair . the examples , and sundry uses hereof you may finde in fitz-nat . br. fol. & . but more particularly in reg. of writs , fol. , , . assoile ( absolvere ) signifies to deliver , pardon , or set free from an excommunication . stamf. pl. cor. fol. . to this effect ; otherwise the defendant should remain in prison , till the plaintiff were assoiled ; that is , delivered from his excommunication . so in hen. . cap. . mention being made of king edward the third , it is added , whom god assoil . henric. duc de lancastre , count de leicestre , de derby & de — senescal dengletre , a touts ceux que ceste endentnre verront ou orront salut en dieu , come nostre chere & bien ame cousin john de blount eit en nostre mein renduz seissaunte acres de terre ou les appurtenances en salford en nostre ducbee de lancastre les quels il avoit a luy & a ses heirs du don & feofment nostre tres honore seigneur & pere , que dieu assoile , &c. dat. edw. . assumpsit ( from assumo ) is a voluntary promise made by word , whereby a man assumes or takes upon him to pay or perform any thing to another . this word comprehends any verbal promise made upon consideration , which the civilians express diversly , according to the nature of the promise , calling it sometimes pactum , sometimes promissionem , pollicitationem , or constitutum . astrihilthet or atrihilthet . ( sax. ) hi qui pacem regis habent , vel manu vel brevi , ei fideles existant — qui si nimis confidens in pace quam habet , per superbiam alicui forisfecerit , damnum restauret & iterum tantundem , quod angli vocant astrihilthet . ll. divi edwardi , cap. . see hovedon , pag. . atia . see odio & atia . at large . see verdict at large littl. fol. . to vouch at large , old nat. br. fol . to make title at large . kitchin , fol. . see bar. attache , ( attachiare . from the fr. attacher , i. figere , nectere , alligare ) signifies to take or apprehend by commandment or writ . lamb. ( in his eiren. lib. . cap. . ) makes this difference between an arrest , and an attachment , that an arrest proceeds out of an inferior court by precept , and an attachment out of higher courts , by precept or writ ; and that a precept to arrest , hath these formal words , duci facias , &c. and a writ of attachment these , praecipimus tibi quod attachies talem & habeas cum coram nobis , &c. whereby it appears , that he , who arrests , carries the party arrested to another higher person to be disposed of forthwith ; he that attacheth , keeps the party attached , and presents him in court at the day assigned in the attachment . yet an attachment sometimes issues out of a court baron , which is an inferior court , kitchin , fol. . there is another difference , in that an arrest lies onely upon the body of a man , and an attachment sometimes on his goods ; which makes it in that particular differ from a capias , in being more general : for , a man may be attached by an hundred sheep ( kitchin , fol. . ) but the capias takes hold of the body onely . see skene , verbo , attachiamentum . attachment by writ , differs from a distress or distringas in this , that an attachment reacheth not to lands , as a distress doth , and that a distress toucheth not the body ( if it be properly taken ) as an attachment doth , yet are they divers times confounded , as may appear by glanvil , lib. . cap. . and fleta , lib. . cap. . howbeit , in the most common use , an attachment is an apprehension of a man by his body , to bring him to answer the action of the plaintiff . a distress , without a writ , is the taking of a mans goods for some real cause , as rent , service , or the like , whereby to force him to replevy , and so to be plaintuff in an action of trespass against him that distrained him . see distress . attachment out of the chancery , is had of course , upon an affidavit made , that the defendant was served with a subpaena , and appears not , or issueth upon not performing some order or decree . after the return of this attachment by the sheriff , quod non est inventus in baliva sua — another attachment with proclamation issues out against him ; and if he appears not thereupon , then a writ of rebellion . west . part . . symbol , tit . proceedings in chancery . attachment of priviledge , is by vertue of a mans priviledge , to call another to that court , whereto he himself belongs ; and in respect whereof he is priviledged , to answer some action . new book of entries . verbo , priviledge , fol. . forein attachment , is an attachment of goods or money , found within a liberty or city , to satisfie some creditor of his within such city or liberty . and , by the custom of some places , as london , &c. a man may attach money or goods in the hands of a stranger , whilest he is within their liberty . as if a ows b l. and c ows a l. b may attach this l. in the hands of c , to satisfie himself for the debt due from a. see calthrops reports , pag. . there is likewise an attachment of the forest , which is one of the three courts there held ; the lowest is called the attachment ; the mean , swainmote ; the highest , the justice in eyrs seat . this court of attachment seems to be so called , because the verderors of the forest have therein no other authorty , but to receive the attachments of offenders against vert and venison , taken by the rest of the officers , and to enrol them , that they may be presented or punished at the next justice seat. manwood , part . . pag. . and this attaching is by three means , by goods and chattels ; by body , pledges , and mainprize , or by the body onely . the court is kept every forty days throughout the year see crompton in his court of the forest . the diversity of attachments you may see in register of writs , under the word attachiamentum , in indice . attaint ( attincta ) as it is a substantive , is used for a writ , that lies after judgment , against a jury , that hath given a false verdict in any court of record ( be the action real or personal ) if the debt or damages surmount the sum of s. what the form of the writ is , and how in use , is expressed in fitz. nat. br. fol. . and new book of entries , fol. . the reason why it is so called , is because the party that obtains it , endeavors thereby to touch or stain the jury with perjury , by whose verdict he is grieved : and if the verdict be found false , then the judgment anciently was , that the jurors meadows should be ploughed up , their houses broke down , their woods grubbed up , and all their lands and tenements forfeited to the king : but if it pass against him that brought the attaint , he shall be imprisoned and grievously ransomed at the kings will. see glanvile , lib. . cap. . smith de repub. angl. lib. cap. . hen. . cap. & hen. . cap. . in what diversity of cases this writ is brought , see reg. of writs in indice . it was anciently called breve de convictione . see coke on littl. fol. . b. attainted ( attinctus ) is used particularly for such as are found guilty of some crime or offence , and especially of felony or treason . yet a man is said to be attainted of disseisin . westm . . cap. , & . anno edw. . and so it is taken in french , as estre attaint & vayncu en aucun case , i. to be cast in any case . britton . cap. . uses the participle attaint , in the sence we say attained unto . a man is attainted by two means , by appearance , or by process . stanf. pl. cor. fol. . attainder by appearance is by confession , by battle , or by verdict . confession ( whereof attaint grows ) is twofold ; one at the bar before the judges , when the prisoner , upon his indictment read , being asked guilty or not guilty , answers guilty , never putting himself upon the jury ; the other is , before the coroner in sanctuary , where he upon his confession , was , in former times constrained to abjure the realm , which kinde also , of the effect , is called attainder by abjuration , stanf. fol. . attainder by battle , is when the party , appealed by another , and chusing to try the truth by combat , rather then by jury , is vanquished . attainder by verdict , is when the prisoner at the bar , answering not guilty to the indictment , hath an enquest of life and death passing upon him , and is , by their verdict , pronounced guilty . idem , f. & . attainder by process , otherwise called attainder by default , or attainder by outlary , is where a party flies , or doth not appear , until he hath been five times called publickly in the county court , and at last upon his default is pronounced or returned outlawed . the same author ( fol. . ) makes a difference between attainder and conviction ; with whom agrees the statute , anno & hen. . cap. . and anno edw. . cap. . in these words , that then every such offender , being duly thereof convicted or attainted by the laws of this realm , &c. and i finde by stanf. ( pl. cor. fol. . ) that a man by our ancient laws , was said to be convicted presently upon the verdict ( guilty , ) but not to be attainted , until it appeared he was no clerk , or being a clerk , and demanded by his ordinary , could not purge himself . and in one word it appears , that attainder is larger then conviction ; conviction being onely by the jury : and attainder is not before judgment . perkins , grants , num . , . yet it appears by stanf. fol. . that conviction is sometimes called attainder : for there he says , the verdict of the jury does either acquit or attaint a man. and so it is , westm . . cap. . this ancient law touching the conviction and purgation of clerks is altered by eliz. cap. . as you may read in clergy . attainder ( attincta and attinctura ) is when a man hath committed treason or felony , and after conviction , judgment hath passed upon him . the children of a person attainted of treason cannot be heirs to him , or any other ancestor . and if he were noble and gentle before , he and his posterity are made base and ignoble : this corruption of blood cannot be salved , but by act of parliament . see attainted , and felony . attendant ( attendens ) signifies one that ows a duty or service to another , or depends on him . for example , there is lord , mesn , and tenant , the tenant holds of the mesn by a penny , the mesn holds over by two pence : the mesn releases to the tenant all the right he hath in the land , and the tenant dies ; his wife shall be endowed of the land , and she shall be attendant to the heir of the third part of the penny , and not of the third part of the two pence . for she shall be endowed of the best possession of her husband . and , where the wife is endowed by the guardian , she shall be attendant to the guardian , and to the heir at his full age . kitchin , fol. . with whom agrees perkins in dower , . attermining . — also such as will purchase attermining of their debts shall be sent into the exchequer . ordinatio de libertatibus perquirendis . anno edw. . it comes from the fr. attermoye , i. that hath a term or time granted for the payment of a debt . so in this statute , it seems , to signifie the purchasing or gaining a longer time for payment of a debt . atterminent quaerentes usque in proximum parliamentum , westm . . cap. . atturney ( atturnatus ) is he that is appointed by another man to do any thing in his stead ; as much as procurator or syndicus in the civil law. west defines them thus , atturneys are such persons as by the consent , commandment , or request of others , see to , and take upon them the charge of their business , part . . symbol . lib. . sect . . in ancient time , those of authority in courts , had it in their power , whether to suffer men to appear , or sue by another then themselves , as is evident by fitz. nat. br. fol. . in the writ dedimus potestatem de attornato faciendo , where it is shewed , that men were driven to procure the kings writs or letters patent to appoint atturneys for them ; but it is since provided by statutes , that it should be lawful so to do , without any such circuit , as appears by hen. . cap. . — edw. . c. . — ejusdem , stat. . — edw. . cap. . — ejusdem , cap. unico . — rich. . cap. . — hen. . cap. . — hen. . cap. . — hen. . cap. . and hen. . cap. . and you may see great diversity of writs in the table of the register , wherein the king by his writ commands the judges to admit of atturneys ; whereby there grew at last so many unskilful atturneys , and so many mischiefs by them ; that for restraining them , it was enacted ( hen. . cap. . ) that the justices should examine them , and displace the unskilful . and again , ( hen. . cap. . ) that there should be but a certain number of them in norfolk and suffolk . in what cases a man at this day may have an atturney , and in what not , see fitz. ubi supra . atturney is either general , or special . atturney general is he , who by general authority is appointed to manage all our affairs or suits ; as the atturney general of the king , which is as much as procurator caesaris was in the roman empire . atturney general of the duke . cromp. juris . fol. . atturney special or particular , is he that is employed in one or more causes particularly specified ; of whom you may read more at large in glanvile , lib. . cap. . and britton , cap. . there are also , in respect of the divers courts , atturneys at large , and atturneys special , belonging to this , or that court onely . the name is borrowed of the normans , as appears by the customary , cap. . our old latin word for it , seems to be responsalis . bracton , lib. . cap. . atturney of the court of the dutchy of lancaster ( atturnatus curiae ducatus lancastriae ) is the second officer in that court , and seems , for his skill in law , to be there placed as assessor to the chancellor of that court , being for the most part some honorable person , and chosen rather for some especial trust , reposed in him , to deal between the king and his tenants , than for any great learning ; as was usual with the emperors of rome , in the choice of their magistrates . attournment ( from the fr. tourner , i. vertere ) is an acknowledgment of the tenant to a new lord. as when one is tenant for life , and he in reversion , grants his right to another , it is necessary the tenant for life agree thereto , which is called attornment , without which nothing passeth by the grant . but if the grant be by fine in court of record , he shall be compelled to attourn . stat. hen. . cap. . the words used in attournment are these , i agree me to the grant made to you , or ( more commonly ) sir , i attourn to you by force of the same grant ; or , i become your tenant , or deliver to the grantee a penny by way of attournment . littl. lib. . cap. attournment , where you may finde divers other cases , whereto attournment appertains , and that it is the transposing those duties , which the tenant owed his former lord , to another , as his lord. attournment is either by word , or by act , voluntary or compulsory , by the writ per quae servitia , ( old nat. br. fol. . ) or sometimes by distress . fitz. nat. br. fol. . it may be made to the lord himself , or to his steward in court. kitchin , fol. . there is attournment in deed , and attournment in law. coke , vol. . fol. . a. attournment in law is an act , which though it be no express attournment , yet in intendment of law , it is of equal force . coke on littl. fol. . atturnato faciendo vel recipiendo , is a writ , which a man owing sute to a county , hundred , or other court , and desiring to make an atturney to appear for him there ( whom he doubts the sheriff or steward will not otherwise admit ) purchaseth , to command him to receive such a man for his atturney , and admit his appearance by him . the form and other circumstances whereof . see in fitz. nat. br. fol. . avage or avisage , is a rent or payment which every tenant of the mannor of writtel in essex , upon st. leonards day , novemb. pays to the lord , viz. for every pig under a year old ob ; for every yearling pig d , and for every hog above a year old d , for the priviledge of pawnage in the lords woods . tob. edmonds , gen. senescal . ibidem . audience court ( curia audientiae cantuariensis ) is a court belonging to the archbishop of canterbury , of equal authority with the arches , though inferior , both in dignity , and antiquity , and is held in the archbishops palace . of which , you may read more in a book , entituled , de antiquitate ecclesiae britannicae historia , and inst . fol. . audiendo & terminando , is a writ , or rather a commission directed to certain persons , when any insurrection or great misdemeanor is committed in any place ; for the appeasing and punishment thereof , of which , you may read at large in fitz. nat. br. fol. . see oyer and terminer . audita querela , is a writ that lies against him , who , having taken a statute-merchant , or recognisance in the nature of a statute staple , or a judgment or recognisance of another , and craving , or having obtained execution of the same from the major and bailiffs , before whom , it was entred ; at the complaint of the party , who entred the same , upon suggestion of some just cause , why execution should not be granted , as a release , or other exception . this writ is granted by the lord chancelor of england ( upon view of the exception suggested ) to the judges of either bench , willing them to grant summons to the sheriff of the county , where the creditor is , for his appearance at a certain day before them . see more in old. nat. br. fol. . and fitz. nat. br. fol. . auditor ( lat. ) is an officer of the king , or some other great personage , who yearly , by examining the accompts of all under officers accomptable , makes up a general book ; which shews the difference between their receipts or charge , and their allowances , commonly called allocations . as namely , the auditors of the exchequer take the accompts of those receivers , who receive the revenues of the augmentation , as also of the sheriffs , escheators , collectors , and customers . of which , see the statute hen. . c. . and part . inst . fol. . auditor of the prests or imprests , are also officers in the exchequer , who take and make up the great accompts of ireland , berwick , the mint , and of any money imprested to any man for his majesties service . see practise of the exohequer , p. . auditor of the receipts , is an officer of the exchequer who files the tellers bills , and makes an entry of them , and gives in every week to the lord treasurer , a certificate of the money received . he makes also debentures to every teller , before they pay any money , and takes their accompts . see part . inst . fol. . aventure ( rectiùs adventure ) is a mischance causing the death of a man , without felony ; as when he is suddenly drowned or burnt , by any disease or mischance , falling into the water or fire . britton , cap. . where you may read how it differs from misadventure , which see . avenage ( fr. ) a certain quantity of oats paid to a land-lord in lieu of some other duties , or as a rent from the tenant . avenor ( from the fr. avene , i. oats ) is an officer of the kings , who provides oats for his stable ; and is mentioned anno car. . cap. . avera ( quasi overa , à gal. ouvre , & ouvrage , velut operagium ) in doomsday , grentbrigsh , rex fordham , sed tamen semper inveniat averam vel d. in servicio regis . that is , a days work of a ploughman , or d. inst . fol. . average ( averagium , from averia , i. cattle ) signifies service which the tenant ows the king , or other lord , by horse or ox , or by carriage with either ; for in ancient charters of priviledges , we finde quietum esse de averagiis . others probably derive it from the french ( euvrage or euvre , i. opus ) it hath two significations : first , rastal mentions the kings averages , which i take to be the kings carriage by horse or cart. then , anno h. . cap. . and jac. cap. . it is used for a certain contribution that merchants and others , do proportionably make towards their losses , who have their goods cast into the sea for the safeguard of the ship , or of the goods and lives of them in the ship , in time of a tempest . and this contribution seems to be so called , because it is proportioned after the rate of every mans average , or goods carried . in this last sence , it is also used in the statute car. . cap. . average , is also a little duty , which those merchants , who send goods in another mans ship , do pay to the master of it , for his care of them , over and above the freight ; for in bills of lading it is expressed — paying so much freight for the said goods , with frimage and average accustomed . averiis captis in withernam , is a writ , for taking cattle to his use , who hath his cattle unlawfully taken by another , and driven out of the county where they were taken , that they cannot be replevied . reg. of writs , fol. . when mention is made of one beast , we say , quidam equus , vel quidam bos ; when of two or more , we do not say equi or boves , but tot averia . averment ( verificatio ) from the fr. averer , i. verificare , testari ) signifies commonly an offer of the defendant , to make good or justifie an exception pleaded in abatement or bar of the plaintiffs action ; and it signifies the act , as well as the offer of justifying the exception . for , anno edw. . stat. . the dema●●ant will offer to aver by the assise or jury , &c. in the english nat. br. fol. . these errors shall be tryed by averment , &c. and in hen. . cap. . the defendants shall have their averment , to say , that , &c. averment is twofold , viz. general and particular ; a general averment , which is the conclusion of every plea to the writ , or in bar of replications , and other pleadings ( for counts or avowries in nature of counts , need not be averred ) containing matter affirmative , ought to be averred , with an hoc paratus est verificare , &c. particular averment , is when the life of tenant for life , or tenant in tail is averred , &c. and an averment contains as well the matter as the form thereof . coke on littl. fol. . b. averpeny ( quasi average-peny ) is money contributed towards the kings averages , or money given to be freed thereof . rastals exposition of words . averpeny , hoc est , quietum esse de diversis denariis pro averagiis domini regis . augmentation ( augmentatio ) was the name of a court , erected hen. . as appears by the twenty seventh chapter of that years parliament ; to this end , that the king might be justly dealt with , touching the profit of such religious houses and their lands , as were given him by act of parliament the same year , not printed . for dissolving which court , there was authority given queen mary , by the parliament held the first of her reign . sess . ca. . which she afterwards put in execution by her letters patent . the court took name from this , that the revenue of the crown was thought to be much augmented by the suppression of the said houses , many of which , the king reserved to the crown . avisage . see avago . aulneger . see alnager . aumone , ( fr. aumosne , i. an alms ) tenure in aumone , is a tenure by divine service ; so says britton , fol. . as when lands or tenements are given in alms , to some church or religious house , with condition , that some service or prayers shall be offered at certain times , for the good and quiet of the donors soul , or otherwise . see frank almoin . aumonier ( fr. aumosnier . ) see almner . auncel-weight ( quasi hand-sale weight , or from ansa , i. the handle of the ballance ) is a kinde of weight with scales hanging , or hooks fastned at each end of a beam or staff , which a man lifted up upon his fore-finger or hand , and so discerned the equality or difference between the weight , and the thing weighed . in which , because there was wont to be great deceit , it was forbidden edw. . stat. . cap. . ejusdem , cap. . and hen. . cap. . and the even ballance onely commanded ; notwithstanding it is still used in some parts of england . by a constitution made by henry chicheley , archbishop of canterbury , anno . pro abolitione ponderis vocati le auncel weight seu scheft seu pounder , &c. ( doloso quodam staterae genere ) qui utitur excommunicandus . auncient demeasn . see ancient demeasn . avoidance hath two significations ; the one when a benefice becomes void of an incumbent ; the other , when we say in pleadings in chancery , confessed or avoided , traversed , or denied , &c. see voidance . avowè ( advocatus ) britton ( cap. . ) saith , that avowè is he to whom the right of advowzen of any church appurtains ; so that he may present thereunto in his own name : and is called avowè , for a difference from those that sometime present in another mans name , as a guardian that presents in the name of his ward ; and for a difference also from those , who have the lands , whereto an advowzen appertains , but onely for term of their lives , or of years , by intrusion or disseisin . see advowè . avowry ( fr. advouerie ) is where one takes a distress for rent , or other thing , and the other sues replevin , then the taker shall justifie in his plea for what cause he took it ; and if he took it in his own right , he ought to shew that , and so avow the taking , which is called his avowry . but if he took it in the right of another , then , when he has shewed the cause , he shall make conusance of the taking , as bailiff or servant to him in whose right he did it . terms of the law. anno hen. . cap. . for the more speedy and effectual proceeding upon distresses and avowries for rents , see the stat. car. . cap. . avoir du pois ( fr. avoir du poids , i. habere pondus , aut justi esse ponderis ) signifies , first , a kinde of weight different from that which is called troy-weight , containing but twelve ounces to the pound , whereas this hath sixteen . and in this respect it is ( probably ) so called , because it is of more weight then the other . . it signifies such merchandises as are weighed by this weight , and not by troy-weight , as in the statute of york , edw. . in proaem . edw. . stat. . cap. . and rich. . cap. . see weights . aurum reginae . rot. pat. anno hen. . in . . see queen-gold . austureus , a goshawk ; whence we usually call a faulkoner , who keeps that kinde of hawks , an ostringer . some ancient deeds have reserved unum austurcum , as a rent to the lord. await ( rich. . cap. . it is ordained , that no charter of pardon from thenceforth shall be allowed before any justice for murder , or for the death of a man , stain by await , assault , or malice prepensed , lreason or rape of a woman , unless the same be specified in the charter , &c. ) seems to signifie that which we now call way-laying , or lying in wait. award ( from the fr. agarder ) propriè est judicium ejus , qui nec à lege nec à judice datur , ad dirimendam litem , sed ab ipsis litigantibus eligitur . is the judgment of him , who is chosen by two or more parties at variance , to determine the controversie between them . dictum , quod ad custodiendum seu observandum partibus imponitur . spel. awm ( jac. cap. . and car. . cap. . ) a measure of rhenish-wine , containing forty gallons : yet i finde in a very old printed book thus — the rood of rhenish-wine of dordreyght is ten awames , and every awame is fifty gallons . item , the rood of antwarp is xiiij awames , and every awame is xxxv gallons . auxilium ad filium militem faciendum et filiam maritandam , was a writ directed to the sheriff of every county , where the king or other lord had any tenants , to levy of them reasonable aid , towards the knighting his son , and the marriage of his eldest daughter . see aid . fitz. nat. br. fol. . and an. car. . cap. . ayd . see aid . b. bachelor ( bachalaureus ) of the fr. bachalier , i. tyro . ) whence i gather , those , that are called bachelors of the companies in london , are such of each company , as are springing towards the estate of those that are employed in council , but as yet are inferiors . for every company of the twelve , consists of a master , two wardens , the livery , ( which are assistants in matters of council , or at the least , such as the assistants are chosen out of ) and the bachelors , who are yet but in expectance of dignity among them , and have their function onely in attendance upon the master and wardens . bachelor was anciently attributed to the lord admiral of england , if he were under a baron . this word is used , anno rich. . stat. . cap. . and signifies as much as knight-batchelor does , edw. . cap. . that is , a simple knight , not a knight baneret , or knight of the bath . sachez nous roger de mortimer seigneur de wygemore avoir donne & grante a nostre chier bachiler , monseur robert de harley , pour son bon service & pour cent livres de argent , la garde du corps gilbert filz & heir sir johan de lacy , ensemblement ove le marriage mesmes celuy gilbert deyns age esteant en nostre garde , &c. donne a penebrugge l'an du regne le roy edward filz le roy edward unzyme . see baneret . backberend ( sax. ) signifies bearing upon the back , or about a man. bracton uses it for a sign or circumstance of manifest theft , ( called by the civilians furtum manifestum ) which he defines thus , ubi latro deprehensus est seisitus de aliquo latro●imio , sc . handhabend & backberend , & insecutus fuerit per aliquem cujus res illa fuerit , lib. . tract . . cap . manwood ( pa. for. laws ) notes it for one of the four circumstances or cases , wherein a forester may arrest the body of an offender against vert or venison in the forest . for by the assise of the forest of lancaster ( says he ) taken with the manner , is , when one is found in the kings forest in any of these four degrees . stable stand , dog-draw , back-bear , and bloody-hand . which see in their proper places . badger ( from the fr. bagagier , i. a carrier of luggage ) signifies with us one that buys corn or victuals in one place , and carries it to another , to make profit by it . see cromptons just . of peace , fol. , . bail ( from the fr. noun bail , i. a guardian or goaler ) is properly used for the freeing or setting at liberty of one arrested or imprisoned upon action , either civil or criminal , under surety taken for his appearance at a day and place certain . bracton , lib. . tract . . cap. . num . & . the reason why it is called bail , is , because by this means the party restrained , is delivered into the hands of those that bind themselves for his forth-coming . there is both common and special bail ; common bail is in actions of small prejudice or concernment , being called common , because any sureties in that case , are taken ; whereas in causes of greater weight , as actions upon bond or specialty , special bail or surety must be taken , as subsidy men at least , and they according to the value . manwood , in his first part of forest laws , pag. . says , there is a great diversity between bail and mainprise : for he that is mainprised , is always said to be at large , and to go at his own liberty out of ward , from the time he is mainprised , till the day of his appearance : but otherwise it is , where a man is let to bail by four or two men , by the lord chief justice in eyre , until a certain day ; for there he is always accounted by the law , to be in their ward , and custody for the time : and they may , if they will , keep him in ward or prison . so that he who is so bailed , shall not be said by the law , to be at large , or at his own liberty . see lamb. eiren lib. . cap. . pag. . bail is also a certain limit within the forest , as it is divided into the charges of several foresters . crompton in the oath of bow-bearer , fol. . see mainprise , and instit . fol. . bailiff ( balivus ) as the name , so the office it self in ancient time was answerable to that of france , where there are eight parliaments , which are high courts , whence lies no appeal ; and within the precincts of those several parts of that kingdom , which belong to each parliament , there are several provinces , to which justice is ministred by certain officers called bailiffs . so in england we see many several counties , in which , justice hath been ministred to the inhabitants by the officer , whom we now call sheriff or vicount ( the one name descending from the saxons , the other from the normans . ) and though i cannot expresly prove , that this sheriff was ever called a bailiff , yet it is probable that was one of his names also ; because the county is often called baliva , a bailywick . as namely , in the return of a writ , non est inventus in baliva mea , &c. kitchin returna brevium , fol. . and in the sheriffs oath , the county is called his bailiwick . i think the word bailiff used in magna chart. cap. . and edw. . stat. . cap. . compriseth as well sheriffs as bailiffs of hundreds . but as the realin is divided into counties , so every county is again divided into hundreds ; within which , it is manifest , that in ancient time the kings subjects had justice ministred to them by the several officers of every hundred , which were called bailiffs , as those officers do in france and normandy , being cheif officers of justice within every province . grand customary of norm . cap. . and it appears by bracton ( lib. . tract . cap. . num . . ) that bailiffs of hundreds might hold plea of appeal and approvers . but since that time these hundred courts ( certain franchises excepted ) are by the said statute of edw. . swallowed into the county courts , as you may read in county and hundred . and now the bailiffs name and office is grown into such contempt , at least these bailiffs of hundreds , that they are now but bare messengers and mandataries within their liberties , to serve writs , and such vile offices ; for which see crompt . just . of peace , fol. . a. yet is the name otherwise still in good esteem ; for the chief magistrates in divers corporate towns , are called bailiffs , as of ludlow , leominster , &c. and again , there are certain persons to whom the kings castles are committed , who are called bailiffs , as the bailiff of dover castle . these ordinary bailiffs are of two sorts , bailiffs errant , and bailiffs of franchises . bailiffs errant ( balivi itinerantes ) are those whom the sheriff appoints to go up and down the county to serve writs , summon the county sessions , assises , and such like . bailiffs of franchises ( balivi franchesiarum aut libertatum ) are those who are appointed by every lord within his liberty , to do such offices therein , as the bailiff errant does at large in the county . of these read sir tho. smith de repub. angl. lib. . cap. . there are also bailiffs of the forest ( manwood , part . . pag. . ) and bailiffs of husbandry , belonging to private men of good estates , who are so called , because they dispose of the under servants , every man to his labor and task , check them for misdoing their business , gather the profits to their lord and masters use , and deliver an account thereof at the years end , or otherwise as it shall be called for . the office or duty of a bailiff of a manor , or houshold ( which in ancient time seems to have been all one . ) fleta well describes , lib. . cap. & . the word balivus is derived from baal , i. dominus ; quia balivi dominantur suis subditis , quasi corum magistri & domini . bailiff of the moot . see moot . bale ( fr. ) a pack , or certain quantity of merchandise ; as a bale of spicery , of books or thred . i finde the word in the statute rich. . cap. . and still in use . and ballot ( fr. ) a little pack . balenger seems to have been a kinde of barge , or water-vessel , by the statute h. . cap. . baliva . statute of marlbridge , hen. . cap. . — ubi balivam habeat vel jurisdictionem . here baliva is well expounded by the statute it self ; for in this place it signifies jurisdiction . cokes inst . fol. . balivo amovendo , is a writ to remove a bailiff out of his office , for want of sufficient living within his bailiwick . reg. of writs , fol. . balkers or balcors . see conders . ban or bans ( bannum ) from the british ban , i. clamor , is a proclamation or publick notice given of any thing . this word bans we use in publishing matrimonial contracts in the church , before marriage , to the end , if any man can speak against the intention of the parties , either in respect of kinred , pre-contract , or otherwise , they may take their exception in time . and in the canon law , banna sunt proclamationes sponsi & sponsae in ecclesiis fieri solitae . yet our word banning seems to come thence , being an exclamation or cursing . bracton mentions bannus regis , for a proclamation or silence made by the court , before the congress of the champions in a combat , lib. . tract . . cap. . — in terra suae ditionis bannum , i. interdictum misit , quod est prohibitio , ut nullus fur vel latro esset , &c. hist . norm . edit . anno , fol. . b. bane , ( from the sax. bana , a killer or murderer ) signifies the destruction or overthrow of any thing ; as i will be the bane of him , is a common saying : and he who was the cause of another mans drowning , is said to be labane , i. malefactor . bracton , l. . tract . . cap. . baneret , ( banerettus , eques vexillarius , or miles vexilliferus ) is a knight made in the field , with the ceremony of cutting off the point of his standard , and making it a banner , according to sir tho. smith in his repub. angl. others add , that blood must be first drawn in the field . they are allowed to display their arms in a banner in the kings army , as barons do . camden in his britan. fol. . hath these words , baneretti , cum vassalorum no men jam desierat , a baronibus secundi erant ; quibus inditum nomen a vexillo , concessum illis erat militaris virtutis ergo quadrato vexillo ( perinde ac barones ) uti , unde & equites vexillarii à nonnullis vocantur , &c. some maintain a baneret ought not to be made in a civil war , but i finde in sir rich. bakers chron. fol. . that henry the seventh made divers banerets upon the cornish commotion in the year . of creating these knights , read seagar-norroy his book , lib. . cap. . and seldens titles of honor , fol. . that they are next to barons in dignity , appears by the statute rich. . c. . and rich. . stat. . cap. . they were anciently called by summons to the parliament . and we finde that a baneret , for praying a pardon for a murderer contrary to the statute , is subject to the same punishment with a baron , rich. . stat. . cap. . will. de la pole was created baneret by edward the third , by letters patent , anno regni sui . memb. . those banerets , who are created sub vexillis regiis , in exercitu regali , in aperto bello , & ipso rege personaliter praesente , explicatis , take place of baronets ; as appears by the letters patent for creation of baronets . see cokes inst . fol. . bank ( lat. bancus , fr. banque ) hath two significations ; the first , ( and that most noble ) is a seat or bench of judgment , as bank le roy , the kings bench , bank de common plees , the bench of common pleas , or the common bench , called also in latin bancus regius & bancus communium placitorum . the second is a bank , where a great sum of money is let out to use , returned by exchange , or otherwise disposed to profit . jus banci , or the priviledge of the bench , was anciently allowed onely to the kings judges , qui summam administrant justitiam ; for inferior courts , such as court barons , and hundred courts , were not allowed that priviledge . since , at this day , the hundred court of freibridge , in norfolk , is held under an oak at geywood ; and the court for the hundred of woolsey in herefordshire , is held under an oak near ashton in that county , which is called the hundred oak . see free-bench . bankrupt ( quasi bancus ruptus ) because when the bank or stock is broken or exhausted , the owner is said to be a bankrupt , anno hen. . cap. . and jac. . he is thus doscribed . all and every such person and persons using , or that shall use the trade of merchandise , by way of bargaining , exchange , bartery , chevisance , or otherwise in gross , or by seeking his , her , or their trade of living by buying and selling , and being a subject born of this realm , or any the kings dominions , or denizen , who at any time since the first day of this present parliament , or at any time hereafter shall depart the realm , or begin to keep his other house or houses , or otherwise , to absent him or herself , or take sanctuary or suffer him or herself willingly to be arrested for any debt or other thing , not grown or due , for money delivered , wares sold , or any other just or lawful cause , or good consideration or purposes , or hath or will suffer him or herself to be outlawed , or yield him or herself to prison ; or willingly , or fraudulently hath , or shall procure him or herself to be arrested , or his or her goods , money , or chattels to be attached , or sequestred , or depart from his or her dwelling-house , or make or cause to be made any fraudulent grant , or conveyance of his , her , or their lands , tenements , goods , or chattels , to the intent , or whereby his , her , or their creditors , being subjects born , as aforesaid , shall , or may be defeated or delaid for the recovery of their just and true debt ; or being arrested for debt , shall , after his or her arrest , lye in prison six moneths , or more , upon that arrest , or any other arrest or detention in prison for debt , and lie in prison six moneths upon such arrest or detention , shall be accounted and adjudged ; a bankrupt to all intents and purposes . but by act car. . cap. . it is provided , that no person whatsoever , who shall adventure in the east-india , or guiney company , or in the royal fish trade , shall be esteemed a merchant or trader within any statute for bankrupts , or lyable to the same . bannum et banleuga , a territory , precinct , or the utmost bounds of a mannor or town ; so it is used hen. . rot. . carta canuti regis coenobio thorneiae — notum facio , me eleemosinam nostram christo concessisse & omnibus sanctis suis — viz. primo terram illam à twiwella usque thorney , ubi bannum nostrum cessat . banishment ( fr. bannissement ) hath a known signification ; but there are two kindes of it , one voluntary and upon oath , whereof you may read abjuration ; the other upon compulsion for some offence or crime ; as if a lay-man succor him , who , having taken sanctuary for an offence , obstinately refuses to abjure the realm , he shall lose his life , if a clerk do so , he shall be banished . stamf. pl. cor. fol. . barator . see barrator . barbican ( barbicanum ) a watch-tower , bulwark , or brest-work . mandatum est johanni de kilmyngton custodi castri regis & honoris de pickering , quoddam barbicanum ante portam castri regis praedicti muro lapideo , & in eodem barbicano quandam portam cum ponte versatili , &c. de novo facere , &c. t. rege , . aug. claus . edw. . m. . barcaria or barcarium , a sheep-coat , and sometimes a sheep-walk . m. s. de placit . ed. . see bercaria . bard a lias beard . see clack . bargain and sale , is properly a contract made of mannors , lands , and other things , transferring the property thereof from the bargainer to the bargainee , which ought to be in consideration of money ; it is a good contract for land , &c. and the fee passeth , though it be not said in the deed ( to have and to hold , to him and his heirs , ) and though there be no livery and seisin given by the vendor ; so it be by deed indented , sealed , and enrolled , either in the county where the land lies , or in one of the kings courts of record at westminster , within six moneths after the date of the deed. hen. . cap. . such bargain and sale may also be made by lease and release , without either livery or enrolment . barkary ( barkaria , corticulus ) a tan-house , heath-house , or house to keep bark in . new book of entries , tit . assise corp . polit. . baron ( baro ) hath divers significations . first it is a degree of nobility next a viscount . bracton ( lib. . cap. . numb . . ) says , sunt & alii potentes sub rege , qui dicuntur barones , quasi , robur belli . in which signification it agrees with other nations , where baroniae are as much as provinciae . so as barons are such as have the government of provinces , as their fee holden of the king , some having greater , some lesser authority within their territories . yet it is probable , that of old here in england , all those were called barons that had such seigniories or lordships , as we now call court barons , who are at this day called seigneurs in france : and the learned in our antiquities , have informed us , that not long after the conquest , all such came to the parliament , and sate as peers in the lords house . but when by experience it appeared , that the parliament was too much thronged with such multitudes , it was in the reign of king john ordained , that none but the barones majores should for their extraordinary wisdom , interest , or quality , be summoned to parliament . after that , again men seeing this estate of nobility to be but casual , and depend meerly upon the princes pleasure , they sought a more certain hold , and obtained of the king letters patent of this dignity , to them , and their heirs-male ; who were called barons by letters patent , or by creation , whose posterity are now by inheritance , and true descent of nobility , those barons that are called lords of the parliament , of which kinde , the king may create at his pleasure . nevertheless , there are yet barons by writ , as well as barons by letters patent . those barons who were first by writ , may now justly also be called , barons by prescription , for that they and their ancestors have continued barons , beyond the memory of man. the original of barons by writ , camden ( in his britan. pag. . ) refers to henry the third . barons by letters patent , or creation commenced rich. . the manner of whose creation read in seldens titles of honor , fol. . ferns glory of generosity , pag. , . to these seager ( lib. . cap. . of honor , civil , and military ) adds a third kinde of baron , calling them barons by tenure , which are some of our ancient barons , and likewise the bishops , who , by vertue of baronies annexed to their bishopricks , always had place in the lords house of parliament , and are termed lords spiritual . baron in the next signification , is an officer , as barons of the exchequer , of whom , the principal is called lord chief baron ( capitalis baro , ) and the three other are his assistants in causes of justice , between the king and his subjects , touching matters appertaining to the exchequer , and the kings revenue . the lord cheif baron , is the cheif judge of the court , and in matter of law , information and plea answers the bar , and gives order for judgment thereupon . he alone in the term time sits upon nisi prius , that come out of the kings remembrancers office , or out of the office of the clerk of the pleas , which cannot be dispatched in the mornings for want of time . he takes recognizances for the kings debts , for appearances and observing orders . he takes the presentation of all the officers in court under himself , and of the lord major of london , and sees the kings remembrancer give them their oaths . he takes the declaration of certain receivers accompts of the lands of the late augmentation made before him , by the auditors . he gives the two parcel-makers places by vertue of his office. the second baron , in the absence of the lord cheif baron , answers the bar and takes recognizances as aforesaid . he gives yearly the oath to the late major of london , for the true accompt of the profits of his office. he takes certain receivers accompts , and examines the letters and sums of such sheriffs forein accompts ; as also the accompts of escheators and collectors of subsidies and taxes , as are brought him by the auditor of the court. the third baron , in the absence of the other two , answers the bar and takes recognizances as aforesaid . he gives yearly the oath to the late major and gawger of london for his true accompting . he also takes certain receivers accompts , and examines the letters and sums of such of the former accomptants , as are brought unto him . the fourth baron , is always a cursitor of the court ; at the days prefixed , he takes oath of all high sheriffs , and their under sheriffs , bailiffs , and other accomptants , for their true accompting . he takes the oath of all collectors , comptrollers , surveyors , and searchers of the custom-houses , that they have made true entrances in their books . he apposeth all sheriffs upon their summons of the pipe in open court ; and informs the rest of the barons of the course of the court , in any matter that concerns the kings prerogative . he likewise examines such accompts as are brought to him . these barons of the exchequer are ancient officers ; for i finde them named in westm . . cap. . anno edw. . and they are called barons , because barons of the realm were wont to be employed in that office. fleta , lib. . cap. . their office is to look to the accompts of the prince , and to that end , they have auditors under them ; as also to decide all causes appertaining to the kings revenue , coming into the exchequer by any means ; as in part is proved by the statutes of edw. . cap . and ejusdem , stat. . cap. . rich. . stat. . cap. . and & ejusdem , cap. . whereupon they have been of late persons learned in the laws , whereas in ancient time they were majores & discretiores in regno , sive de clero essent , sive de curia . there are also barons of the cinque ports , anno edw. . stat. . cap. . and hen. . cap. . which are two in every of these towns , hastings , winchelsey , rye , rumney , hithe , dover , and sandwich , who have places in the commons house of parliament . see seldens titles of honor at large , sol . & seq . baron in the third signification , is used for the husband in relation to his wife . the cheif magistrates of london were also called barons , before there was a lord major , as appears by the city seal , as also by their ancient charters — henricus ( ) rex . sciatis nos concessisse & hac pr●senti carta nostra confirmasse baronibus nostris de civitate nostra london . quod elegant sibi mayer de seipsis singulis annis , &c. see spelmans gloss . at large upon this word . baronet ( baronettus ) is a dignity or degree of honor which hath precedency before all banerets , knights of the bath , and knights-batchelors , except such banerets as are made sub vexillis regiis , in exercitu regali , in aperto bello & ipso rege personaliter pr●sente . this order of baronets , king james created in the year . with such precedency as abovesaid , and other priviledges , &c. as may appear in rot. fat. jac. part . . m. . & jac. par . . m. . , with an habendum sibi & haeredibus masculis , &c. see baneret . where baronets are mentioned in our old statutes and ancient authors , it is mistaken for banerets , inst . fol. . and seldens titles of honor , fol. . barony ( baronia ) is the dignity , territory , and fee of a baron ; under which notion , are comprehended not onely the fees and lands of temporal barons , but of bishops also , who have two estates , one as they are spiritual men , by reason of their spiritual revenues and promotions , as was the tribe of levi among the israelites . the other grew from the bounty of our english kings , whereby they have baronies , and lands so called , and are thereby barons or lords of parliament . this barony ( as bracton says , lib. . cap. . ) is a right indivisible ; and therefore , if an inheritance be to be divided among coparceners , though some capital messuages may be divided , yet , si capitale messuagium sit caput comitatus , vel caput baroniae , they may not be parcelled . the reason is , ne sic caput per plures particulas dividatur , & plura jura comitatuum & baroniarium deveniant ad nihilum , per quod deficiat regnum , quod ex comitatibus & baroniis dicitur esse constitutum . the mannor of burford in the county of salop , was found by inquisition , capt edw. . teneri de rege ad inveni●ndos homines pro ex●rcitu walliae , & per servitium ▪ baroniae , and the lord thereof ( sir gilbert cornwal ) is called baron of burford ; but is no baron of parliament . barrator or barater ( fr. barateur , i a deceiver ) is a common mover or maintainer of suits , quarrels , or parts , either in courts or elswhere in the country , and is himself never quiet , but at variance with one or other . qui cum terentiano davo omnia perturbat . to this purpose read lamb. eiren. pag. . who says also , that barrettor ( for so he writes it ) may come from the latin baratro or balatro , a vile knave , or 〈…〉 hrift ; and by a metaphor , a spot in a commonwealth see the statute of champerty , edw. . stat. . and westm . . cap. . skene , in the word barratry , says , that barrators are symonists , so called of the italian word barrataria , signifying corruption or bribery in a judge , giving a false sentence for money ; whom you may read more at large , as also hortensius cavalcanus , in his tract . de brachio regio , parte . num . . barraster ( barrasterius , repagularis causidicus . ) see utter-barraster . barre ( fr. barriere or barre ) signifies legally a destruction for ever , or taking away for a time the action of him that hath right ; and it is called a plea in bar , when such a bar is pleaded . coke on littl. fol. . plowden , in colthirsts case , fol. & . and brook , tit . barre , num . . and hen. . fol. . this word is also used for a material bar , as the place where serjeants at law or counsellors stand to plead causes in court , or prisoners to answer their indictments ; whence our lawyers , who are called to the bar , or licensed to plead ( in other countreys called licenciati ) are termed barrasters , hen. . cap. . see blank-bar . bar fee , is a fee of xx d , which every prisoner , acquitted of felony , pays to the goaler , crompt . just . of peace , fol. . barrel , is a measure of wine , oyl , &c. containing the eighth part of a tun , the ●ourth of a pipe , and the moyety of a hogshead , that is , thirty one gallons , and a half , anno rich. . cap. . but the quantity of this vessel seems to differ according to the liquor ; for a barrel of beer contains thirty six gallons , the kilderkin eighteen , and the firkin nine . a barrel of ale thirty two gallons , the kilderkin sixteen , and the firkin eight . anno hen. . cap. . and car. . cap. . — the said assise of gallons of wine-measure , which is about gallons of old standard , well packed , and containing in every barrel usually , a thousand full herrings , at least , is , and shall be taken for good , true , and lawful assise of ●erring barrels . anno eliz. cap. . barriers ( fr. barrieres ) signifies with us , that which the french call ( jeu de barres , i. palaestram ) a martial exercise of men , armed and sighting together with short swords , within certain bars or rails , whereby they are severed from the beholders ; now disused . barter ( from the span. baratar , i. to sell cheap , or to deceive or cheat in bargaining ) signifies with us to exchange one commodity for another , to truck wares for wares . anno rich. . cap. . and so bartry the substantive , eliz. cap. . the reason may be , because they that chop and change in this manner , do endeavor for the most part , one to over-reach , or deceive the other . see barrator . barton , in devonshire , and the west of england . is used for the demesn lands of a mannor ; for the mannor-house it self ; and in some places for out-houses , and fold-yards . in the statute & edw. . cap. . barton lands and demesn lands are used as synonima's . see berton . base court , ( fr. cour basse ) is any co●rt , not of record , as the court baron . of this read kitchin , fol. , , &c. base fee. see base estate . base estate ( fr. bas estat ) signifies , that estate which base tenants have in their lands . base tenants are those ( according to lamb. verbo , paganus ) who perform inferior villanous service to their lords . kitchin , fol. . makes base-tenure and frank-tenure to be contraries , and puts copiholders in the number of base tenants ; whence it may be gathered , that every base tenant holds at the will of the lord , yet that there is a difference between a base estate and villenage ; which fitzherbert in his nat. br. fol. . seems to confound . for to hold in pure villenage , is to do all that the lord will command him . so that if a copiholder have but base estate , he , not holding by the performance of every commandment o● his lord , cannot be said to hold in villenage . whether it may be said , that copiholders are , by custom and continuance of time , grown out of that extream servitude , wherein they were first created , i leave to others of better judgment , since fit●● . ( loco ●itato ) says , tenure by copy is but of late time . basels ( baselli ) a sort of coyn , al●olished by hen. . anno . this year the king altered his coyn , abrogating certain peeces called basels . hollinsh . pag. . baselard or basillard , in the stat. r. . cap. . signifies a weapon ; which mr. speight , in his exposition upon c●aucer , calls pugionem vel sicam . bastard ( bastardus , from the british bastardd , i. nothus , ) is he or she that is born of any woman not married , so that the childes father is not known by the order of law , and therefore is called filius populi . cui pater est populus , pater est sibi nullus & omnis : cui pater est populus , non habet ipse patrem . such bastard cannot inherit land as heir to his father , nor can any person inherit land as heir to him , but one that is heir of his body . littl. sect. . if the childe be begotten by him that does marry her after the childes birth , yet it is in judgment of law , a bastard , though the church holds it legitimate . stat. hen. , . and hen. . . coke on littl. . if a man take a wife , who is great with childe by another , who was not her husband , it shall be said the childe , and may be the heir of the husband , though it were born but one day after the espousals solemnized . if one marry a woman , and die before night , and never bed her , and she have a childe after , it seems it shall be accounted his childe , and legitimate . see the english lawyer , . if a man or woman ▪ marry a second wife or husband , the first being living , and have issue by that second wife or husband , such issue is a bastard . edw. . . hen. . . edw . . if a woman elope with a stranger , and hath a childe by him , her husband being infra quatuor maria , this is legitimate , and shall inherit the husbands land. edw. . . hen . . the punishment of the mother and reputed father of a bastard . anno eliz. cap. . he that gets a bastard in the hundred of middleton , in com. kent , forfeits all his goods and chattels to the king. m s. de temp . edw. . before the statute & edw. . cap. . one was adjudged a bastard , quia filius sacerdotis . int. plac. de temp . joh. reg. lincoln . . bastardy ( fr. bastardage ) signifies a defect of birth , objected to one born out of wedlock . bracton . lib. . cap. . how bastardy is to be proved , or to be enquired into , if it be pleaded . see rastals entries , tit . bastardy , fol. . and the stat. hen. . cap. . kitchin , fol. . mentions bastardy special , and bastardy general . the difference whereof is , that bastardy general is a certificate from the bishop of the diocess to the kings justices , after such enquiry made , that the party enquired of , is a bastard , or not a bastard , upon some question of inheritance . bastardy special is a suit commenced in the kings court , against him that calls another bastard ; so termed , because bastardy is the principal case in tryal , and no inheritance contended for . whereby it appears , that in both these significations , bastardy is rather taken for an examination or tryal , whether a mans birth be defective or illegitimate , than for bastardy it self . see brook tit . bastardy , and dr. ridleys book , pag. , . baston ( fr. ) a staff , club , or cowlstaff . but in our statutes it signifies one of the warden of the fleets servants or officers , who attends the kings courts with a red staff , for taking such to ward as are committed by the court. anno rich. . cap. . eliz. cap. . see tifstaff . batable ground , was the land lying between england and scotland , heretofore in question , when they were distinct kingdoms , to which it belonged , anno hen. . cap. . and ejusdem , cap. . as if we should say , litigious or debatable ground ; for by that name skene calls ground that is in debate or controversie betwixt two . cam. brit. tit . cumberland . battel ( fr. battaile ) signifies a tryal by combat : the manner whereof , being long , full of ceremonies , and now difused , we must refer you to glanvile , lib. . cap. , , . bracton , lib. . tract . . cap. . fol. . britton , cap. . smith de rep. angl. lib. . cap. . and lib. . c. . coke on littl. fol. . and on westm . . fol. . see combat . battery ( from the fr. batre , i. to strike , or sax. batte , i. fustis ) is a violent striking , or beating a man ; who ( in regard it tends to the breach of the peace ) may therefore either indict the other party , ( whereby he is fineable to the king ) or have his action of trespass , of assault and battery , against him , ( for every battery implies an assault ) and recover so much in costs and damages , as the jury will give him , which action will lie as well before as after the indictment . but if the plaintiff made the first assault , then the defendant shall be quit , and the plaintiff shall be amerced to the king for his false suit. in some case a man may justifie the beating another in a moderate manner , as the parent his childe , the master his servant or apprentice , &c. this the civilians call injuriam personalem . batus ( sax. bat ) a boat. and batellus , a little boat. — concessit etiam idem hugo wake pro se & hered . suis , quod praedictus abbas & successores sui & ecclesia sua de croyland habeant tres batellos in harnolt , &c. charta . edw. . ●ulii . regni . see libera batella . bay or pen , is a pond-head made up of a great height to keep in store of water ; so that the wheels of the furnace or hammer belonging to an iron mill , may be driven by the water coming thence , through a passage or flood-gate , called the penstock . also , a harbor where ships ride at sea near some port. the word is mentioned anno eliz. cap. . beacon ( from the sax. beacen , i. signum , vel symbolum ) anno eliz. cap. . is well known . hence beaconage , money paid towards the maintenance of a beacon ; and we still use the word to becken , from the saxon beacnian , to nod unto , or signifie . see the statute hen. . and dors . pat. hen. . par . . m. . pro signis anglicè beacons & vigiliis . bede or bead ( sax. bead , a prayer ; ) so that to say ones beads , is to say ones prayers . they were most in use before printing , when poor people could not go to the charge of a manuscript prayer-book . these are mentioned in hen. . cap. . and jao . cap. . bearding alias barding of wool. see clack . bearors — justices of assie shall enquire , bear , and determine of mainteynors , bearors , and conspirators , and of those that commit champarti , &c. anno edw. . cap. . such as bear down or oppress others ; maintainers . beasts of chase ( ferae campestres ) are five ; the buck , the doe , the fox , martron and roc. manwood , part. pag. . and part. cap. . num . . beasts of the forest ( ferae sylvestres ) are the hart , hind , hare , bore , and woolf. manwood , part . . cap. . num . . beasts and fowls of warren , are the hare , coney , pheasant , and partridge . manw. part . . cap. . num . . beastials . see bestials . beau-pleader ( fr. beau-plaider , i. to plead fairly ) is a writ upon the statute of marlbridge , hen. . cap. . whereby it is provided , that neither in the circuit of justices , nor in counties , hundreds , nor courts baron , any fines shall be taken of any man for fair pleading , that is , for not pleading fairly or aptly to the purpose ; upon which statute , this writ was ordained against those that violate the law herein . see fitz. nat. br. fol. . whose definition is to this effect . the writ upon the statute of marlbridge for not fair pleading lies where the sheriff , or other bailiff in his court , takes fine of the party , plaintiff , or defendant ; for that he pleads not fairly , &c. and it was as well in respect of the vicious pleading , as of the fair pleading by way of amendment . part. inst . fol. . bedel ( bedellus , sax. bydel ) a cryer or messenger of a court , the keeper of a prison or house of correction , an under bailiff of a mannor . manwood , par . . fol. . says , a beadle is an officer or servant of the forest , who makes all manner of garnishments of the courts of the forest , and all proclamations , as well within the courts , as without , and executes all the processes of the forest ; he is like a bailiff errant of a sheriff in a county . edgarus interdicit omnibus ministris suis , id est , vicecomitibus , bedellis , & balivis in patria girvirorum — ne introeant fines & limites dicti marisci . ingulphus hist . croyl . bedelary , is the same to a bed●l , as bailiwick to a bailiff . littl. lib. . cap. . bederepe alias bidrepe ( sax. ) is a service , which some tenants were anciently bound to perform , viz. to repe their land-lords corn at harvest , as some yet are tied to give them one , two , or three days work , when they are called — debent venire in antumpno ad precariam quae vocatur a le bederepe . pla. in crast . pur. hen. . rot. . benefice ( beneficium ) is generally taken for any ecclesiastical living , or promotion , be it dignity , or other ; as anno rich. . stat. . cap. . where benefices are divided into elective and donative . so is it used in the canon law. duarenus de beneficiis , l. . cap. . beneficio primo ecclesiastico habendo , is a writ directed from the king to the chancellor , to bestow the benefice that shall first fall in the kings gift , above or under such a value , upon this or that man. reg. of writs , fol. . b. benerth , was a service which the tenant rendred to his lord with his plough and cart. lamb. itin. pag. . and coke on littl. fol. . a. benevolence ( benevolentia , favor , good will ) is used both in the chronicles and statutes of this realm , for a voluntary gratuity given by the subjects to the king. stows annals , pag. . by the statute of rich. . cap. . it is called a new imposition . but stow , pag. . saith , that the invention grew from edward the fourths days ; you may finde it also ( anno hen. . cap. . ) to be yielded to that worthy prince , in regard of his great expences in wars , and otherwise . see cokes rep. fol. , . it is in other nations called subsidium charitativum , given sometimes to lords of the fee by their tenants , sometimes to bishops by their clergy . cassan . de consuet . burg. pag. , . by act of parliament , car. . cap. . it was also given to his majesty that now is , king charles the second . bercaria ( from the fr. bergerie ) a sheep-coat or sheepfold . in doomsday it is called berquarium . part. cokes inst . fol. . — dedi sexaginta acras terrae , ad unam bercariam faciendam — mon. angl. . p. fol. . a. where it seems to signifie a sheep-walk . berghmayster ( from the sax. berg . mons , quasi , master of the mountain . ) a bailiff or cheif officer among our derbishire miners , who , among other parts of his office , does also execute that of coroner among them . — juratores dicunt , quod in principio quando mineratores veniunt in campum minera quaerentes , inventa minera , venient ad balivum qui dicitur berghmayster , & petent ab eo duas metas , si sit in novo campo , & habebunt unam , scil . pro inventione , & aliam de jure mineratorum , & unaquaeque meta continet quatuor perticatas , & ad foveam suam septem pedes , & unaquaeque per●●cata ●rit de pedibus , &c. es● . de anno edw. . num . . in turr. lond. see berghmoth . bergmoth or berghmote . — juratores dicunt etiam quod placita del bergmoth debent teneri de tribus septimanis in tres septimanas super mineram in pecco . es● . edw. . ut supra . this bergmoth or berghmote , comes from the saxon berg , i. mons and mote or gemote , conventus : quasi , the court held upon a hill , for deciding pleas and controversies among the derbishire miners ; of which , thus mr. manlove , in his ingenious treatise of their customs . — and sute for oar must be in berghmote court , thither for justice miners must resort : if they such sutes in other courts commence , they lose their due oar-debt , for such offence ; and must pay costs ; because they did proceed against their custom : miners all take heed . no man may sell his grove , that 's in contest , till sute be ended ; after the arrest the sellers grove is lost by such offence , the buyer fined , for such maintenance . and two great courts of berghmote ought to be in every year , upon the minery , to punish miners that transgress the law , to curb offenders , and to keep in aw such as be cavers , or do rob mens coes ; such as be pilferers , or do steal mens stows ; to order grovers , make them pay their part , joyn with their fellows , or their groves desert ; to fine such miners , as mens groves abuse , and such as orders to observe refuse ; or work their meers beyond their length and stake ; or otherwise abuse the mine and rake ; or set their stows upon their neighbors ground , against the custom , or exceed their bound : or purchasers , that miners from their way to their wash-troughs do either stop or stay ; or dig or delve in any mans bing-place ; or do his stows throw off , break , or deface ; to fine offenders , that do break the peace , or shed mans blood , or any tumults raise ; or weapons bear upon the mine or rake ; or that possession forcibly do take ; or that disturb the court , the court may fine for their contempts ( by custom of the mine ) and likewise such as dispossessed be , and yet set stows against authority ; or open leave their shafts , or groves , or holes , by which men lose their cattle , sheep , or soles . and to lay pains , that grievance be redress'd , to case the burdens of poor-men oppress'd . to swear berghmaysters , that they faithfully perform their duties on the minery ; and make arrests , and eke impartially impanel jurors , causes for to try ; and see that right be done from time to time both to the lord , and farmers , on the minc . bernet , ( incendium , from the sax. byrnan , to burn ) is one of those crimes , which , by henry the first 's laws , cap. . emendari non possunt . see opentheff . bery or bury ( from the sax. byr , i. habitatio ) a dwelling place , a mansion-house or court , a chief farm. the cheif house of a mannor , or the lords seat is still so called in some parts of england ; as in herefordshire there are the beries of stockton , luston , hope , &c. anciently also used for a sanctuary . berton ( bertona , a sax. bere , hordeum , & ton , villa ) est area in aversa parte aedium ruralium primartarum , in qua horrea , stabula & vilioris officii aedificia sita sunt , & in qua fodentur domestica animalia & negotiationes rusticae peraguntur . — rex thesaurario & baronibus suis de scaccario salutem . quia volumus quod castrum nostrum glocestriae , nec-non & tina & bertona gloc. corpori dicti comitatus nostri gloc. annectantur , &c. claus . edw. . m. . berwica , a hamlet , or village appurtenant to some town or mannor ; often found in doomsday ; from the sax. bereƿica , a corn-farm , or villa frumentaria . manerium minus ad maius pertinens ; non in gremio manerii , sed vel in confinio vel dis-junctiùs interdum situm est . spel. besaile ( fr. bisayeul , i. the father of the grand-father ) signifies a writ that lies where the great grand-father was seised of any lands or tenements in fee-simple , the day he died ; and after his death , a stranger abates or enters the same day uppn him , and keeps out his heir , &c. the form and further use of this writ , read in fitz. nat. br. fol. . besca , a spade , or shovel : ( from the fr. bescher , to dig or delve ) — in communi pastura turbas , cum una sola besca , fodient & nihil dabunt . prior. lew. custamar . de hecham . pa. . hence perhaps — una bescata terrae inclusa — ( mon. angl. p. . fol. . a. ) may signifie a peice of land usually digged , such as gardiners sow roots in . bestials ( fr. bestiails , i. beasts or cattle of any sort ) anno edw. cap. . it is written bestail ; and is generally and properly used for all kinde of cattle . mentioned also in car. . cap. . bidale or bid-all , precaria potaria ( from the sax. biddan , i. to pray or sapplicate ) is the invitation of friends to drink ale at the house of some poor man , who thereby hopes a charitable contribution for his relief ; still in use in the west of england , and falsly written bildale in some copies of bracton , lib. . cap. . num . ult . and mentioned hen. . cap. . see sothale . bidding of the beads ( anno hen. . cap. . ) was anciently an invitation or notice given by the parish priest to his parishioners at some special times to come to prayers , either for the soul of some friend departed , or upon some other particular occasion . and , to this day our ministers do usually , on the sunday precedent , bid such festivals , as happen in the week following , holidays ; that is , desire or invite their parishioners to observe them . bidding comes from the sax. biddan , i. to desire or intreat ; and bead , in that language , signifies a prayer . bidripe ( bidripa . ) see bederepes . biga , properly a cart , or chariot , drawn with two horses coupled side to side ; but , in our ancient records , it is used for any cart , wain , or waggon — et quod eant cum bigis & carris & caeteris falleris super tenementum suum , &c. mon. angl. fol. . b. bigamus , is he that hath married two or more wives , or a widdow , as appears in the statutes , edw. . cap . and edw. . cap. . part. cokes inst . fol. . bigamy , ( bigamia ) signifies a double marriage or the marriage of two wives ; it is used for an impediment to be a clerk , anno edw. . . upon those words of s. paul to timothy , chap. . . ( oportet ergo episcopum irreprehensibilem esse & unitis uxoris virum . ) upon which , the canonists founded that doctrine ; that he that hath married a widow , is by their interpretation , taken to have been twice married . and both these , they not onely exclude from holy orders , but deny them all priviledges that belong to clerks . but this law is abolished by edw. . cap. . and eliz. cap. . which allow to all men that can read as clerks , though not within orders , the benefit of clergy , in case of felony not especially excepted by some other statute . brook , tit . clergy . bilanciis deferendis , is a writ directed to a corporation , for the carrying of weights to such a haven , there to weigh the wools that such a man is licenced to transport . reg. of writs , fol. . a. bilawes or rather by-laws ( from the gothish by , pagus and lagen . lex , or from the sax. bilage , i. leges obiter & pro re nata conditae ) are particular orders made in court leets or court barons by common assent of the resiants , for the good of those that make them , in some particular cases , whereto the publick law does not extend . coke , vol. . fol. . kitchin , fol. & . in scotland they are called laws of burlaw or birlaw , which are made and determined by consent of neighbors , elected by common consent in the birlaw courts , wherein knowledge is taken of complaints betwixt neighbor and neighbor ; which men , so chosen are judges and arbitrators to the effect aforesaid , and are called birlaw-men . for bawr or bawrsman in dutch , is rusticus , and so birlaw or burlaw , leges rusticorum . skene . by stat. car. . cap. . the wardens and assistants for making and regulating the trade of norwich stuffs , are impowred to make by-laws , &c. anno car. . cap. . bilinguis , signifies in the generality a double-tongued man , or one that can speak two languages ; yet it is used for that jury which passeth in any case , betwixt an englishman and an alien , whereof part must be englishmen , and part strangers . anno edw. . cap. . bill ( billa ) is diversly used : first , it is a security for money under the hand and seal of the debtor , and is without condition or forfeiture for non-payment . . bill is a declaration in writing , expressing either the wrong the complainant hath suffered by the party complained of , or else some fault committed against some law or statute of the realm . this bill is most commonly addressed to the lord chancellor of england , especially for unconscionable wrongs done ; sometimes to others having jurisdiction , according as the law , whereon they are grounded , does direct : it contains the fact complained of , the damages thereby sustained , and petition of process against the defendant for redress . see more in west . par . . symbol . tit . supplications . bill of store , is a kinde of licence granted at the custom-house to merchants , or others , to carry over such stores or provision as are necessary for their voyage , custom-free . bill of sufferance , is a licence granted at the custom-house to a merchant , to suffer him to trade from one english port to another , without paying custom . anno car. . cap. . billa vera ( lat. ) the bill is true . the grand enquest , empanelled and sworn before the justices of eyre , &c. endorsing a bill ( whereby any crime punishable in that court is presented to them ) with these two words , signifie thereby that the presentor hath furnished his presentment with probable evidence , and worthy further consideration . whereupon , the party presented , is said to stand indicted of the crime , and tied to make answer to it , either by confessing or traversing the indictment : and if the crime touch his life , it is yet referred to another enquest , called the enquest of life and death , by whom , if he be found guilty , then he stands convict of the crime , and is by the judge to be condemned to death . see ignoramus and indictment . billets of gold ( fr. billot ) wedges or ingots of gold , mentioned edw. . stat. . cap. . bissextile ( bissextilis ) leap-year so called , because the sixth calends of march are in that year twice reckoned , viz. on the & of february . so that leap-year hath one day more than other years , and is observed every fourth year , being first devised by julius caesar , to accommodate the year with the course of the sun. and to prevent all doubt and ambiguity , that might arise hereupon , it is provided by the statute de anno bissextili , hen. . that the day increasing in the leap-year , and the day next before , shall be accounted for one day , &c. britton . fol. . and dyer , eliz. . birlaw . see bilaw and byrlaw . black maile ( fr. maille , i a link of mail , or a small piece of metal or money ) signifies in the counties of cumberland , northumberland , and westmerland , a certain rate of money , corn , cattle , or other consideration , paid to some inhabiting upon , or near the borders , being persons of name and power , allied with certain moss-troopers , or known robbers within the said counties ; to be thereby by them freed and protected from the danger of those spoil-takers . anno eliz. cap. . see mail. black rod , or gentleman-usher of the black rod , is cheif gentleman usher to the king. he is called in the black book , fol. lator virgae nigrae , and hostiarius ; and elswhere virgi-bajulus : his duty is ad port andam virgam coram domino rege , ad festum sancti georgii infra castrum de windesore . he hath also the keeping of the chapter-house door , when a chapter of the order of the garter is sitting ; and , in the time of parliament , attends on the house of peers . he hath a like habit with the register of the order , and garter king of arms ; which he wears at the feast of s george , and all chapters . he bears a black rod , on the top whereof sits a lion , gold ; which rod is instead of a mace , and hath the same power and authority . his fee is now l. per annum . this officer hath been anciently constituted by letters patent under the great seal . blade ( bladum , fr. bled ) nostro foro , de segete tantum intelligitur , praesertim etiam in herba . spel. but the saxon blaed signifies more generally fruit , corn , hemp , flax , herbs , &c. or the branches or leaves of trees or herbs . universis — wil. de mohun salutem , sciatis me relaxasse & quietum clamasse domino reginaldo de mohan fratri meo totum manerium meum de torr — salvo mihi instauro meo & blado , &c. ( sine dat . ) i. e. excepting my stock and corn on the ground . hence bladier is taken for an ingrosser of corn or grain . sciant — quod ego willielmus alreton , consensu & voluntate beatriciae uxoris meae , dedi — agathae gille pro duabus marcis argenti & una mensura bladi , duas solidatas reditus in villa leominstr . illas scil . quas walterus de luda solebat mihi reddere pro quadam terra quae est inter soldas adae talcurteis & feodum johannis rading . habend &c. ( sinc dat . ) ex libro cartar . priorat . leominstriae . blancks ( fr. blanc . i. candidus ) a kinde of money , coyned by king henry the fifth , in the parts of france , which were then subject to england , the value whereof was d. stows annals , pag. . these were forbidden to be current in this realm , hen. . cap. . the reason why they were called blanks , was , because at the time these were coyned in france , there was also a piece of gold coyned , called a salus ; from which , this of silver , was in name distinguished by the colour . blanck-bar , is the same with that we call a common bar , and is the name of a plea in bar , which in an action of trespass is put in to compel the plaintiff to assign the certain place where the trespass was committed : it is most used by the practisers in the common bench , for in the kings bench the place is commonly ascertained in the declaration . croke , part. fol. . blench , to hold land in blench , is , by payment of a penny , rose , pair of gilt spurs , or such like thing , if it be demanded ; in name of blench , i. nomine albae firmae . see alba firma . blockwood . see logwood . blomary ( anno eliz. cap. . ) the first forge man iron mill , through which the iron passeth , before it comes to the finary . bloated fish or herring ( anno car. . cap. . ) are those which are half-dried . bloudy-hand . see backberend . bloudwit or blodwite ( compounded of two saxon words blod , i. sanguis , and wita , mulcta , ) is a word used in ancient charters of liberties , and signifies an amercement for shedding blood ; so that whosoever had it given him in his charter , had the penalty due for blood-shed . skene writes it bloudveit , and says veit in english , is injuria , and that bloudveit is an amerciament or unlaw ( as the scotch call it ) for wrong or injury , as bloodshed is : for he that hath bloodveit granted him , hath free liberty to take all amerciaments of courts for effusion of blood. fleta says , quod significat quietantiam misericordiae pro effusione sanguinis , lib. . cap. . blodwite , i. si aliqui pugnantes ad invicem in rudnam & extraxerint sanguinem , prior habebit inde amerciamenta in curia sua . ex reg. priorat . de cokesford . blubber ( anno car. . cap. . ) a kinde of whale-oyl , so called ; before it is throughly boiled and brought to perfection . boc-hord ( sax. ) a place where books , evidences , writings , or other like monuments are kept , as the rolls , quasi , librorum horreum . bocland ( sax. ) terra haereditaria vel testimentalis , quasi , book-land . a possession , an inheritance ; a territory , farm , or house with land belonging to it , held by evidence in writing . bocland verò ea possidendi transferendique lege coercebatur , ut nec dari licuit nec vendi , sed haeredibus relinquenda erat , in scriptis a liter permitteretur ; terra inde haereditaria nuncupata . ll. aluredi , cap. . see charter-land , and landboc . and see glossarium in decem scriptores . bodies politick . see corporation . boilary or bullary of salt ( salina ) a salt-house , or salt-pit , where salt is boiled and made . coke on littl. fol. . b. from the fr. bovillon , a boiling or bubbling . bolting , at greys-inn the manner is thus , an ancient , and two barrasters sit as judges , three students bring each a case , and the judges chuse which of them shall be argued ; which done , the students first argue it , then the barrasters . it is inferior to mooting , and may be derived from the saxon bolt , a house ; because done privately in the house for instruction . bona fide , i. with a good faith ; we say that is done bona fide , which is done really , with a good faith , without dissimulation or fraud . it is used anno car. . cap. . and car. . cap. . bonaght or bonaghty , was an exaction in ireland , imposed on the subjects at the will of the lord , for relief of the knights called bonaghti , who served in the wars . antiq. hibern . pag. . camden ( in his britan. tit . desmond ) says , james earl of desmond imposed upon the people those most grievous tributes of coyn , livery , cocherings , bonaghty , &c. bona notabilia ; where the party dying hath , at time of his death , goods , or good debts in any other diocess , or peculiar jurisdiction within that province , besides his goods in the diocess where he dies , amounting to the value of l. at the least , he is said to have bona notabilia ; and then the probat of his will , or granting administration belongs to the archbishop of the province , whether it be within that of canterbury , or york . but this does not prejudice those diocesses , where , by composition or custom , bona notabilia are rated at a greater sum . book of canons , jac. can. , . perkins , sect . . see probat of testaments . bona patria , an assise of countrey-men or good neighbors ; sometimes it is called assisa bonae patriae , when twelve or more men are chosen out of any part of the countrey to pass upon assise ; otherwise called juratores , because they are to swear judicially in presence of the party , &c. skene . see assisors . bond , bondage , and bondmen . see nativus . bondmen in doomsday are called servi , and differed from villani . — et de toto tenemento , quod de ipso tenet in bondagio in soca de nortone cum pertin . mon. angl. . par . fol. . a. bonis arrestandis , is a writ , which see in arrestandis bonis . bonis non amovendis , is a writ to the sheriffs of london , &c. to charge them , that one , against whom a judgment is obtained in an action , and who prosecutes a writ of error , be not suffered to remove his goods , till the error be tryed . reg. of writs , fol. . b. booting or boting corn , certain rent-corn anciently so called : the tenants of the mannor of haddenham in com. bucks , heretofore paid booting corn to the prior of rochester . antiquity of purveyance , fol. . perhaps it was so called , as being paid by the tenants , by way of bote ( boot we still call it ) or compensation to the lord , for his making them leases , &c. see bote. bordagium , the tenure of bord-lands , which see . item ordinatum est , quod omnes qui terras & tenementa tenent per bordagium , habeant super singulis bordagiis , quae per praedictum servicium tenentur , capitalem quandam mansionem in loco ad hoc consueto , &c. ordinac . justic . itin. in insula de jersey . bordarii seu borduanni , often occur in domesday ; by some esteemed to be bores , husbandmen , or cotagers ; which are there always put after villains . dicantur bordarii vel quòd in tugurio ( quae cottagia vocant ) habitabant , seu villarum limitibus , quasi borderers . spelm. tenentes per servitia plus servilia quam villani , & qui tenent nisi paucas acras . m. s. but see bordlands . bord-halfpeny ( sax. bord , tabula , and hafpeny , obolus ) is money paid in fairs and markets for setting up tables , bords , and stalls , for sale of wares . in antiquis chartis multi immunes fiunt ab ista solutione , says spelman . it is corruptly written borthalpeny and brodhalpeny in some authors . bord-lands , the lands which lords keep in their hands for maintenance of their bord or table . est dominicum quod quis habet ad mensam suam & propriè , sicut sunt bord-lands , anglicè , i. dominicum ad mensam . bract. lib . tract . . cap. . num . . which possession was anciently termed bordage . sax. dict. verbo bord. and the bordarii ( often mentioned in domesday ) were such as held those lands , which we now call demain lands . see antiq. of purveyance , fol. . borow or borough ( sax. borhoe , fr. burg ) signifies a corporate town , which is not a city . anno edw. . cap. . as also such a town or place as sends burgesses to parliament , the number whereof you may see in cromp. jurisd . fol. . probably borhoe was anciently taken for those companies , consisting of ten families , which were combined to be one anothers pledge . see bracton , lib. . tract . . cap. . and lamberts duty of constables , pag. . verstegan says , that burg or burgh , whence we say borough , signifies a town , having a wall or some kinde of enclosure about it ; and that those places which in old time had among our ancestors the name of borough , were one way or other , fenced or fortified . see head-borow and borow-head . borow-head alias head-borow ( from the sax. borhoe and head ) signifies ( according to lambert , in his treatise of constables ) the head-man or cheif pledge of the decury or borow , chosen by the rest to speak and act in their name , in those things that concerned them . borow-holders alias bursholders , quasi borhoe-ealders , are the same with borowheads . bracton calls them borghy-alders , lib. . tract . . cap. . borow-english ( sax. borhoe englisc ) is a customary descent of lands , whereby in all places , where this custom holds , lands and tenements descend to the youngest son ; or , if the owner have no issue , to his youngest brother , as in edmunton . kitchin , fol . and the reason of this custom ( according to littleton ) is , for that the youngest is presumed in law , to be least able to shift for himself . borow goods divisable . these words are found in the statute of acton burnel , edw. . as , before the statutes of & hen. . no lands were divisable at the common law , but in ancient baronies ; so perhaps , at the making the foresaid statute of acton-burnel , it was doubtful , whether goods were divisable , but in ancient borows . for it seems by the writ de rationabili parte bonorum , anciently the goods of a man were partable between his wife and children . borthalpeny . see bord-halpeny . boscage ( boscagium ) is used for that food , which wood and trees yield to cattle , mast : from the gr. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . pascere . boscaria — ut ipsi possunt domos & boscaria satis competentia aedificare — mon. angl. p. fol. . it may either signifie wood-houses , from boscus ; or ox-houses , from bos. boscus , is an ancient word used in the law of england , for all manner of wood. the italian useth bosco in the same sence , and the french , boys . boscus is divided into highwood or timber ( haut-bois ) and copice or under-wood ( sub-bois . ) high-wood is properly called saltus , and in fleta , maeremium . bosinnus ( from the fr. bouzine , a rustical trumpet or wind-instrument , made of pitched barks . ) by inquisition after the death of laurence hastings , earl of pembroke , edw. . the mannor of aston cantlow ( de cantelupo ) in com. war. is returned to be held in capite of the king by these words . quod quidem manerium per se tenetur de domino rege in capite per servitium inveniendi unum hominem peditem cum quadam ar●u sine corda , cum uno bosinno sine tappa per xl . dies sumptibus propriis , quoties fuerit guerra in wallia . ex record . turris londini . quaere , if tappa ( from the fr. tapon , i. the bung or stopple ) be not the buckhole or stopple of the instrument where they blow . bote ( sax. ) compensation , recompence , satisfaction , or amends . hence man-bote alias mon-bote , compensation or amends for a man slain , who was bound to another : in king ina's laws set out by lambert , cap. . you may see what rate was ordained for expiation of this offence . hence also our common phrase to boot . i. compensationis gratia . see hedge-bote , plow-bote , house-bote ; and see skene , verbo , bote. boteless . i. sine emenda . int. plac. trin. edw. . ebor. . we retain the word still in common speech . botha , a booth , stall , or standing , made in fairs or markets . — et duas mansuras liberas ad bothas suas faciendas . mon. angl. p. fol. . botiler of the king ( pincerna regis ) anno edw. . cap. . is an officer that provides the kings wines ; who ( according to fleta , lib. . cap. . ) may by vertue of his office out of every ship laden with sale-wines , unum dolium eligere in prora navis ad opus regis , & aliud in puppi , & pro qualibet pecia reddere tantum solid . mercatori . si autem plura inde habere voluerit , bene licebit , dum tamen precium fide dignorum judicio pro rege apponatur . bottomry or botomary ( anno car. . cap. . ) is , when the master of a ship borrows money upon the kiel or bottom of his ship , and binds the ship it self , that if the money be not paid by the day assigned , the creditor shall have the ship. ceo bottomage est quand argent est borrow sur le keil del neif , & le neif oblige al payment de ceo . viz. si ne soit pay al temps , que l'auter avera le neif latches rep. fol. . scarboroughs case . others define it thus , when i. s. lends money to a merchant , that wants it to traffick , and is to be paid a greater sum at the return of the ship , standing to the hazard of the voyage ; and though the profit be above six per cent , it is not reckoned usury . bovata terrae , is as much as one ox can plough . octo bovatae terrae faciunt carucatam terrae , octo carucatae faciunt unum feodum militis . xviii acrae faciunt bovatam terrae . m. s. cum notis in statut. see oxgang . bouche of court , or as the vulgar call it budge of court , is to have meat and drink scot free there : for so is the fr. avoir bouche a court , to be in ordinary at court. and this anciently extended as well to the court of noblemen , who were subjects , as to the kings court. as appears by this deed. ceste endenture faite parentre lui nobles hommes monsieur tho. beauchamp , counte de warwyke , d une part , & monsieur johan russell de strengesham chivalier d'autre part , tesmoigne que le dit mounsieur johan est demoure ove le dit counte pur terme de sa vie , pur la pees & pur guerre , & prendra pur la pees du dit counte annuelement vynt livres , de la vie du dit mounsieur johan , del manoir le dit counte de chedworth en le countee de gloucestre , & pur la guerre quarant livres , & serra paie annuelement as termes de la nativitee seinte john le baptiste & de nowel per ovels portions des issues du dit manoir de chedworth , per les mains del gardeyn de mesme le manoir , & avera le dit mons . johan pur la pees , quant il serra maunde de venir al dit counte , bouche au court pur lui mesme , un chamberlein & un garson , feyn , provendre & ferrure pur trois chivaulx pur la temps de sa demoure , et pur la guerre le dit mons . johan mountra lui mesme covenablement , & avera bouche au court , ou liverie pur lui mesme , une chamberlein & trois garsons , ou gages al afferant & feyn , provendre & ferrure pur cynk chivaulx en manere come autre de son estat , ove le dit counte , prendront . et si il preigne prisoner , soit entre le dit counte & le dit mons . johan , si come il fait parentre lui & autres bachulers de sa retenue pur terme de vie . et voet & grante le dit counte per cestes presentes lettres , que si la dite rent annuele de xx l. pur la pees , ou de xl l. pur laguerre soit a derere & nyent paye pur un moy apres ascun des termes avantditz , que bien lise au dit mons . johan ou a son attornie en celle partie en le dite manoir de chedworth destreindre pur les arrerages de la dite rent , &c. done a nostre chastel de warwyke le xxix . jour del moys de marcz l'an du regne le roy richard second , puis le conquest , sisme . boveria , an ox-house or ox-stall — ad faciendum ibi boverias suas & alias domos usibus suis necessarias , &c. mon. angl. . par . fol. . a. loca ubi stabulantur boves ; according to gloss . in x. seriptores . bound ( bunda ) — secundum metas , maeras , bundas , & marchias forestae , edw. . itin. pick. fol. . sir edw. coke in inst . fol. . derives it from the saxon , bunna , but the saxon dictionary affords no such word . bow-bearer , is an under officer of the forest , whose oath will inform you the nature of his office , in these words . i will true man be to the master of this forest , and to his lieutenant , and in their absence i shall truly over-see , and true inquisition make , as well of sworn men as unsworn in every bailiwick , both in the north bail , and south bail of this forest , and of all manner of trespass done , either to vert or venison , i shall truly endeavor to attach , or cause them to be attached , in the next court of attachment , there to be presented , without any concealment had to my knowledge . so help me god. crompt . jurisd . fol. . bozones . see busones . brandy , a kinde of spirit or strong-water , made cheifly in france , and extracted from the lees of wine or cider , mentioned in the act , car. . cap. . upon an argument in the exchequer , anno . whether brandy were a strong-water or spirit , it was resolved to be a spirit . but nov. . by a grand committee of the whole house of commons , it was voted to be a strong-water , and not a spirit . brasium , malt : in the ancient statutes brasiator is taken for a brewer , from the fr. brasseur ; and at this day also for a malster or malt-maker . it was adjudged , edw. . quod venditio brasii non est venditio victualium , nec debet puniri sicut venditio panis , vini & cervisiae & hujusmodi contra formam statut. breach carnium . per breach carnium thomas crew , ( magister hospitalis sancti johannis baptistae extra portam borealem cestriae ) clamat , quod omnes tenentes sui infra eorum libertates residentes sint quieti de venditione carnium . pla. in itin. apud cestriam hen. . bread of treet or trite . ( panis tritici , wheaten bread ) was one of those sorts of bread mentioned in the statute of assise of bread and ale , hen. . stat. . where we read of wastel bread , cocket bread and bread of treet , which i think do gradually correspond with what we now call white , wheaten , and boulted or course bread. see cocket . bred , is used by bracton , lib. . tract . . cap. . for broad , as , too long and too bred . brehon , the irish call their judges brehones , and thereupon the irish law is called the brehon law. see inst . fol. . bretoyse or bretois — sciant — quod ego henricus de penebrugge dedi — omnibus liberis burgensibus meis burgi mei de penebrugge omnes libertates & liberas consuetudines secundùm legem de bretoyse nundinis & seriis appurtin . secundum tenorem chartae domini henrici regis quam habeo . habendum , &c. sine dat . secundum legem de bretoyse , must certainly signifie , legem marchiarum ; or , the law of the britains , or welshmen : for penebrugge ( now pembridge ) is a town in herefordshire , bordering upon wales . brevibus & rotulis liberandis , is a writ or mandat to a sheriff to deliver unto the new sheriff , chosen in his room , the county and the appurtenances , with the rolls , briefs , remembrances , and all other things belonging to that office. reg. of writs , fol. . a. bribery ( from the fr. briber , to devour or eat greedily ) is a great misprision , when any man in judicial place takes any fee , pension , gift , reward , or brocage , for doing his office , but of the king onely . fortescu , cap. . and instit . fol. . bribour ( fr. bribeur , i. a beggar ) seems to signifie in some of our old statutes , one that pilfers other mens goods , as cloaths out of a window , or the like . brief ( breve ) signifies a writ , whereby a man is summoned or attached to answer any action ; or ( more largely ) any writ in writing , issuing out of any of the kings courts of record at westminster , whereby any thing is commanded to be done in order to justice , or the kings command , and is called a brief , or breve ; quia breviter & paucis verbis intentionem proferentis exponit & explanat , sicut regula juris rem quae est breviter enarrat , says bracton , lib. . tract . . cap. . num . . also letters patent or a licence from the king or privy council , granted to any subject to make a collection for any publick or private loss , is commonly stiled a brief . briga ( fr. brigue , i. debate or contention ) — et posuit terram illam in brigam & causam intricandi terram , scilicet , per diversa fraudulenta feoffamenta ; ideo committitur maresc . ebor. hil. edw. . rot. . brigandine ( fr. ) a coat of mail , or a fashion of ancient armor , consisting of many joynted and scale-like plates , very pliant unto , and easie for the body , mentioned anno & phil. & ma. cap. . some confound it with haubergeon ; and some with brigantine , ( in writing which , there is onely the d turned into t ) which signifies a low , long , and swift sea-vessel , having some twelve or thirteen oars on a side . brig-bote or brug-bote , significat quietantiam reparationis pontium . fleta , lib. . cap. . pontis refectio vel restauratio . it is compounded of ( brig ) a bridge , and ( bote ) which is a yeilding of amends , or supplying a defect . see bote and seldens titles of honor , fol. . arcis pontisque constructio . brocage , ( anno rich. . cap. . ) means used by a spoaksman ; the wages , hire , or trade of a broaker . anno jac. cap. . it is written brokerage . anno hen. . num . . not printed . brochia ( from the fr. broc , quod lagenam majorem aut cantharum significat . ) si quis teneat per servitium inveniendi domino regi , certis locis & certis temporibus , unum hominem & unum equum & saccum cum brochia pro aliqua necessitate , vel utilitate exercitum suum contingentem . bracton , lib. . tract . . cap. . by which it should seem saccus was to carry the dry , and brochia the liquid things . see saccus . brodehalfpeny , rectiùs bordhalfpeny , signifies a small toll , by custom paid to the lord of the town , for setting up tables , bords , or booths , in a fair or market : from which , they who are freed by the kings charter , had this word in their letters patent ; in so much , as now the freedom it self ( for shortness of speech ) is termed bordhalfpeny . see bord-halpeny . broggers . vide brokers . brokers ( brokarii ) are of two sorts , the one an exchange-broker , whose trade is to deal in matters of money and merchandise between english-men and stranger-merchants , by drawing the bargain to particulars , and the parties to conclusion ; for which they have a fee or reward . these are called broggers ; anno rich. . cap. . and in scotland broccarii , that is ( according to skene , ) mediators or intercessors in any transaction , paction , or contract , as in buying , selling , or contracts of marriage . broggers of corn , are used in a proclamation of q. elizabeth for badgers , bakers chron. fol. . he that would know what these brokers were wont , and ought to be , let him read the statute of jac. cap. . the other is the pawn-broker , who commonly keeps a shop , and le ts out money to poor and necessitous people upon pawns , not without extortion for the most part : these are more properly called friperers or pawn-takers , and are not of that antiquity or credit , as the former ; nor does the said statute allow them to be brokers , though now commonly so called . brothel-houses . king henry the eighth , by proclamation martii . of his reign , suppressed all the stews or brothel-houses , which long had continued on the bankside in southwark ; for that they were prohibited by the law of god , and law of this land. inst. fol. . and rot. parl. r. . num . . bruck-bote ( from the germ. bruck , i. bridge and bote , i. compensation ) signifies a tribute or contribution towards the mending or reedifying of bridges , whereof many are freed by royal charter ; and thereupon the word is used for the very liberty or exemption it self . see pontage and brig-bote . bru●ere ( fr. bruyere , lat. bruyrium , erica , quasi ericetum ) heath and heath-ground . pastura xi quarentenarum & dimid . longitudine & latitudine . bruaria leucarum longitudine & latitudine . domesd . tit. dorset eccles . creneburn . ingelingham . hac autem appellatione forenses vocant steriles camporum solitudines , licet ●ricam non edant , heath-ground . spel. buckstall . — et sint quieti de chevagio , hondpeny , buckstall , & tristris , & de omnibus misericordiis , &c. privileg . de semplingham . by the stat. hen. . cap. . it seems to be a deer-hay , toyl , or great net to catch deer with ; which by the said statute is not to be kept by any man that hath not a park of his own , under pain of l. to be quit of buckstals , i. ubi homines convenire tenentur , ibidem convenire ad stableiam faciendam circa feras & ad easdem congregand . quietum esse de hoc servitio , quando dominus chaseaverit . inst . fol. . buck-wheat ( mentioned in the statute car. . cap. . ) is otherwise called french wheat , and well known . budge of court. see bouche . buggery ( according to sir edward coke , rep. . pag. . ) comes from the ital. buggerare , to bugger , and is described to be carnalis copula contra naturam , & haec vel per confusionem specierum , sc . a man or a woman with a bruit beast , vel sexuum ; a man with a man , or a woman with a woman . this offence committed with mankinde or beast , is felony without clergy ; it being a sin against god , nature , and the law , and was brought into england by the lombards , as appears by rot. parl. edw. . num . . see the stat. h. . cap. . revived eliz. . fitzh . nat. br. fol. . b. in ancient time such offenders were burnt by the common law. this most detestable sin was justly excepted out of the act of general pardon , car. . cap. . bull ( bulla , ital. bolla ) was a gold ornament or jewel for children , hollow within , and made in fashion of a heart to hang about their necks ; but now it is most usually taken for a brief or mandate of the pope , or bishop of rome , from the lead or sometimes golden seal affixed thereto ; which matthew paris anno . thus describes . in bulla domini papae stat imago pauli a dextris crucis in medio bullae figuratae , & petri a sinistris . the word is often used in our statutes , as hen. . cap. . and & phil. & ma. cap. . — eliz. cap. . non solum sigillum significat imprimens & impressum , sed ipsas etiam literas bullatas & interdum schedulam seu billam . misit quoque archiepiscopus ( cantuariae ) regi & concilio suo schedulam sive bullam , in hunc modum continentem , &c. spelm william de brinckle recovered at the common law by verdict against otho , parson of the church of beston x l. pro substractione unius bullae papalis de ordinibus , alterius bullae de legitimatione , & tertiae bul ae de veniam exorantibus pro animabus antecessorum suorum . trin. edw. . rot. . bulla , olim sigillum significans . gloss . in x. scriptores . bullenger . the commons do petition , that certain commissions lately sent to cities for the making of certain boats and bullengers , being done without consent of parliament , might be repealed . rot. parl. hen. . num . . bullion ( fr. billon , i. the metta● whereof base coyn is made ) signifies with us gold or silver , in mass or billet . anno edw. . stat. . cap. . and sometimes the kings exchange or place , whither such gold in the lu●p is brought to be tryed or exchanged . edw. . stat. . cap. . and hen. . cap. . bullion seems also to signifie of old , a quantity of salt , according to gervase of tilbury , writing of the salt springs in worcestershire . bultel , is the refuse of the meal , after it is dressed by the baker ; also the bag wherein it is dressed . i finde the word mentioned in the statute , entituled , assisa panis & cervisiae . anno hen. . hence bulted bread , course bread. bunda . see bound . burcheta ( from the fr. berche ) a kinde of gun , mentioned in the forest records . burgage ( burgagium , fr. bourgage ) is a tenure proper to borows , whereby the inhabitants by ancient custom hold their lands or tenements of the king , or other lord , at a certain yearly rent . it is a kinde of soccage , says swinburn , pa. . sect. . num . . ad militiam non pertinet , habetur ideo inter ignobiles tenuras . mentioned hen. . cap. . it was also anciently used for a dwelling-house in a borow-town . sciant — quod ego editha filia johannis de aula in ligea virginitate & potestate mea dedi — deo & beatae mariae & omnibus sanctis & ele●mosinariae leominstr . pro salute animae meae — in liberam puram & perpetuam eleemosinam totum illud burgagium cum edificiis & pertin . suis quod jacet in villa leominstr . ex libro cartarum priorat . leom . burghbrech alias borgbrech ( sax. burhbryce , i. fidejussionis fractio , vel plegii violatio ) angli omnes decemvirali olim fidejussione pacem regiam stipulati sunt ; quod autem in hanc commissum est , burghbrech dicitur , ejusque cognitio & vindicta , regiis chartis , plurimis credebantur , pro quorum dignitate , mulcta aliàs levior fuit , aliàs gravior . vide ll. canuti , cap. . burghbrich , i. laesio libertatis aut septi . gallicè , blesmure de courte ou de close . polychron , lib. . cap. . burgbote ( sax. burg , burh , burgus , and bote , compensatio ) a tribute or contribution , towards the building or repairing of castles or walls of defence ; or towards the building of a burow or city . from which divers had exemption by the ancient charters of the saxon kings ; whence it is ordinarily taken for the liberty or exemption it self . rastal . significat ( says fleta ) quietantiam reparationis murorum civitatis vel burgi . lib. . cap. . burgheristh . — istae consuetudines pertinent ad taunton , burgheristh , latrones , pacis infractio , hanifare , denarii de hundret & denarii s. petri , &c. quaere . m. s. camdeni penes will. dugdale ar. burgemote ( sax. ) curia vel conventus burgi vel civitatis ; the borow-court . — et habeatur in anno ter burgesmotus , & schiremotus bis , nisi saepius sit , & intersit episcopus & aldermannus , & doceant ▪ ibi dei rectum & seculi . ll canuti . m. s. cap. . burgesses ( burgarii & burgenses ) are proper●y men of trade , or the inhabitants of a borow or walled town ; yet we usually apply this name to the magistrates of such a town , as the bailiff and burgesses of leominster . but we do now usually call those burgesses who serve in parliament , for any such borow or corporation . filius verò burgensis aetatem habere tunc intelligitur , cùm discretè sciverit denarios numerare , & pannos ulnare & alia paterna negotia similiter exercere . glanvile , lib . cap. . in germany , and other countreys , they confound burgess and citizen ; but we distinguish them , as appears by the stat. rich . cap. . where the classes of this commonwealth are thus enumerated . count , baron , baneret , chivaléer de countée , citezein de citée , burgess de burgh . see the statute of merton , cap . and coke on littl. fol. . burglary ( from the fr. bourg , i. pagus , villa ; and larecin , i. furtum ; or , laron , fur . coke , lib. . fol. . ) is a felonious entring into another mans dwell●ng-house , wherein some person usually inhabits , or into a church in the night time , with intent to commit some felony therein ; as to ki●l some man , steal somewhat thence , or to do some other fe onious act , though he execute it not . burglary in the natural signification of the word , is nothing but the robbing a house by night , or breaking in with an intent to rob , or do some other felony . the like offence by day , we call house-robbing or house-breaking , by a particular name . how many ways burglary may be committed , see cromp. just . of peace , fol. , , . and part. inst . fol. . it shall not have benefit of clergy , anno eliz . cap. . burghware ( q. burgi vir ) a citizen or burgess . willielmus rex salutat willielmum epis opum & goffredum portgresium & omnem burghware infra london . charta willielmi ●●n . londoniensibus confecta . burlimen . see sucking . bursa , a purse . — reddendo inde ad bursam abbatis vi d. ad festum sancti michaelis , &c. ex lib. ca●tarum priorat . leominstr . busca or buscus , under-wood or brush-wood . busones comitatus . justiciarii , vocatis ad se qua●●or vel sex vel pluribus de majoribus comitatus , qui dicuntur busones comitatus , & ad quorum nutum dependent vota aliorum , &c. bracton , lib. . tract . . cap. . num . . quare . but ( butticum every ) but of malmesey to contain at the least gallons . anno rich. . cap. . butlerage of wines , signifies that imposition upon sale-wine brought into the land , which the kings butler , by vertue of his office , may take of every ship ; that is , two shillings of every tun of wine imported by strangers . anno hen. . cap. . see more in botiler of the king , and prisage . the stat. car. . cap. . for taking away of purveyance , does not extend to prejudice the ancient duties of butlerage , and prisage of wines , but they are to continue as before the making this act. see calthrops reports of special cases , pag. . and inst . fol. . buzcarles or buscarles ( buscarli & buthsecarli ) sunt qui portus nauticos custodiunt : mariners or scamen . quando rex ibat in expeditionem vel terra vel mari , habebat de hoc manerio aut xx sol . ad pascendos suos buzecarl , aut unum hominem ducebat secum pro honore quinque hidarum domesd . tit . wiltsc . wilton . and seldens mare clausum , fol. . where it is written butsecarli . buzones judiciorum . placita de temp . johannis regis . gloc. . see busones comitatus . bydalle . ( anno hen. . cap. . ) see bid-ale . byrlaw or laws of burlaw ( leges rusticorum , from the germ. baur , i. rusticus , & lauch , lex . ) laws made by husbandmen , concerning neighborhood , to be kept among themselves . skene , pag. . see bylaws . c. the letter c among the ancients , denoted condemnation . see ignoramus . cablish ( cablicia ) among the writers of the forest laws , signifies brush-wood , or browse-wood . cromp. jurisd . fol. . but sir henry spelman thinks , it more properly signifies wind-faln-wood , because 't was written of old cadibulum , from cadere : or , if derived from the fr. chablis , it also signifies wind-faln-wood . cabo bona speransa . see cape bona esperanza . cade of herrings , is . of sprats . book of rat●s , tol . . yet i find anciently . made the cade of herring , to the hundred . calandring of worsted-stuffs ( mentioned hen. . cap. . and ejusdem . cap. . ) signifies to smooth , trim , and give them a gloss ; it is a trade both in london and norwich . calangium , challenge , claim , or dispute . sciant — quod ego godefridus de doddensull , cum assensu amiliae uxoris meae , dedi . — deo & beatae mariae & dominis meis priori & conventui wigorn. in pura & perpetua cl●emosina unam acram terrae — sine aliqua reclamatione seu calangiv , &c. sine dat . penes thomam chyld arm. — boscum , qui suit in calengio inter ipsum & walterum . mon. angl. . par . fol. . b. calcetum & calceata , a causey or causway . see causey . calends ( calendae ) properly the first day of every month , being spoken by it self , or the very day of the new moon , which commonly fall out together : if pridie be placed before it , then it signifies the last day of the foregoing month , as pridie calend. maii , is the last day of april : if any number be placed with it , it signifies that day in the former month , which comes so much before the month named ; as the tenth calends of october , is the twentieth day of september , because , if one begin at october , and reckon backwards , that twentieth day of september is the tenth day before october . in march , may , july , and october , the calends begin at the sixteenth day , in other moneths at the fourteenth ; which calends must ever bear the name of the moneth following , and be numbred backward from the first day of the said following moneths . see more in hoptons concordance , pag. . and see ides . dictum de kenelworth is dated the day before the calends of november , anno . in the dates of deeds , the day of the moneth , by nones , ides , or calends , is sufficient . inst . fol. . campfight . see champion , and instit . fol. . candlemass-day , ( sax. candelmaesse ) the feast of the purification of the blessed virgin mary ( febr. ) instituted in memory and honor , both of the presentation of our blessed lord , and the purification of the blessed virgin in the temple of jerusalem , the fortieth day after her happy child-birth , performed according to the law of moses , levit. . . it is called candlemass , or a mass of candles , because before mass was said that day , the church blessed , that is , deputed or set a part for sacred use , candles for the whole year , and made a procession with hallowed candles in the hands of the faithful , in memory of the divine light , wherewith christ illaminated the whole church at his presentation , when old simeon stiled him , a light to the revelation of the gentiles , and the glory of his people israel , s. luk. . . this feastival-day is no day in court , and is the grand day of candlemass term in the inns of court. cantel ( among the statutes made in the reigns of henry the third , edward the first or second , but uncertain which , set down in poulton , fol. . cap. . & . — toll shall be taken by the rase , and not by the heap or cantel ; which seems to signifie the same we now call the lump ; as to buy by measure , or by the lump . cantred , or rather cantref , ( cantredus ) signifies an hundred villages , being a british word compounded of the adjective cant , i. an hundred , and tref , a town or village . in wales the counties are divided into cantreds , as in england into hundreds . the word is used anno hen. . cap . capacity ( capacitas ) an aptness to contain or receive . our law allows the king two capacities , a natural , and a politick : in the first , he may purchase lands to him and his heirs ; in the later , to him and his successors . and a parson hath the like . cape of good hope ( cabo de bon ' speranza ) a promontory or elbow of land that lies in cafraria , a province of aethiopia inferior , and was first discovered by the portugals , under the command of bartholomew diaz . helyns cosmog . fol. . and is mentioned in the stat. car. . cap. . cape ( lat. ) is a writ judicial touching plea of land or tenements ; so termed ( as most writs are ) of that word , which carries the especial est intention , or end of it . and this writ is divided into cape magnum and cape parvum : both which ( as is before said in attachment ) take hold of things immoveable , and seem to differ in these points . first , because cape magnum or the grand cape lies before appearance , and ( cape parvum ) afterward . secondly , the ( cape magnum ) summons the tenant to answer to the default , and over to the demandant . cape parvum summons the tenant to answer to the default onely ; and therefore is called cape parvum or petit cape . old nat. br. fol. , . yet ingham saith , it is called petit cape , not because it is of small force , but that it consists of few words . cape magnum in the old. nat. br. is thus defined ; where a man hath brought a praecipe quod reddat of a thing that touches plea of land , and the tenant makes default at the day to him given in the original writ , then this writ shall go for the king , to take the land into his hands ; and if the tenant come not at the day given him thereby , he loseth his land , &c. a form of this writ , you may see in the reg. judicial , fol. . b. of this writ , and the explication of its true force and effect , read bracton , lib . tract . . cap. . num . , , & . cape parvum or petit cape ( in old. nat. br. fol. . ) is thus defined ; where the tenant is summoned in plea of land , and comes at the summons , and his appearance is of record ; and at the day given him , prays the view , and having it granted , makes default , then shall issue this writ for the king , &c. the difference betwixt the grand cape and petit cape ( which in effect or consequence , are alike ) is , that the grand cape is awarded upon the defendant or tenants not appearing or demanding the view in such real actions , where the original writ does not mention the parcels or particulars demanded : and the petit cape , after apparence or view granted . it s form see in reg. jud. fol. . and fleta , lib. . cap. . cape ad valentiam , is a species of cape magnum , so called of the end whereto it tends , and ( in old nat. br. fol. . ) thus described . where i am impleaded of lands , and i vouch to warrant another , against whom the summons ad warrantizandum hath been awarded , and the sheriff comes not at the day given ; then , if the demandant recover against me , i shall have this writ against the vouchee , and shall recover so much in value of the lands of the vouchee , if he hath so much , if not , then i shall have execution of such lands and tenements as descend to him in fee ; or , if he purchase afterwards , i shall have against him a resummons ; and if he can say nothing , i shall recover the value . this writ lies before apparence . of these , and their divers uses , see the table of the reg. judicial , verbo , cape . capias , is a writ of two sorts , one before judgment , called capias ad respondendum , where the sheriff , upon original , or other writ in a personal action returns nihil habet in baliva nostra . the other is a writ of execution after judgment , being also of divers kindes ; as capias ad satisfaciendum , capias pro fine , capias utlagatum , after judgment , &c. capias ad satisfaciendum , is a writ of execution after judgment , lying where a man recovers in an action personal ; as for debt , damages , detinue , &c. in the kings court : in which case , this writ issues to the sheriff , commanding him to take the body of him , against whom the debt is recovered , who shall be put in prison , till he make satisfaction . capias pro fine , is where one , being by judgment fined to the king , upon some offence committed against a statute , does not discharge it , according to the judgment : by this therefore is his body to be taken and committed to prison , until he pay the fine . coke , lib. . fol. . or where , upon a non est factum pleaded , his plea is , by evidence or his own after-acknowledgment , not made out or verified , and the like . capias utlagatum , is a writ which lies against him , who is outlawed upon any action personal or criminal , by which the sheriff apprehends the party outlawed , for not appearing upon the exigend , and keeps him in safe custody till the day of return , and then presents him to the court , there farther to be ordered for his contempt ; which ( if in the common pleas ) was in former times to be committed to the fleet , there to remain till he had sued out the kings charter of pardon , and appeared to the action . at present , in the kings bench , the outlary cannot be reversed , unless the defendant appear in person , and by a present of gloves to the judges , implore and obtain their savor to reverse it . and in the common pleas , the defendant ( not being an executor or administrator ) is now to give good bail ( which he is allow'd to do by atturny ) to answer the action , if the debt or damage demanded be l. or above , and to pay the plaintiffs charges , before the outlary be reversed . and , by a special capias utlagatum in the same writ , the sheriff is commanded , and may seize all the defendants lands , goods , and chattels for the contempt to the king ; and the plaintiff may ( after an inquisition taken thereupon , and returned into the exchequer ) obtain a lease of the lands extended , and a grant of the goods , whereby to compel the defendant to appear ; which , when he shall do and reverse the utlary , are to be restored to him . see old nat. br. fol. . and table of reg. judic . verbo , capias . capias in withernamium de averiis , is a writ lying for cattle in withernam . reg. of writs , fol. . & . see withernam . capias in withernamium de homine , is a writ that lies for a servant in withernam . reg. fol. . & . see withernam . capias conductos ad proficiscendum , is an original writ , which lies , by the common law , against any soldier that hath covenanted to serve the king in his war , and appears not at the time and place appointed , directed to two of the kings serjeants at arms to arrest , and take him wheresoever he may be found , and to bring him coram consilio nostro ; with a clause of assistance , inst . fol. . capite ( from caput , i. rex , unde tenere in capite , i. tenere de rege , omnium terrarum capite ) was a tenure which held of the king immediately , as of his crown , were it by knights service or soccage . broke tit . tenures , , . dyer , fol. . num . . but , by stat. car. . cap. . all tenures by knights service of the king , or of any other person , knights service in capite , or soccage in capite of the king , and the fruits and consequences thereof , are taken away and discharged from febr : . and all tenures of all mannors , lands , &c. held either of the king , or of any other person from that time , shall be construed and taken for ever to be turned into free and common soccage . and all tenures hereafter to be created by the king , upon any gifts or grants of mannors , lands , &c. are by that statute ordained to be in free and common soccage onely , and not by knights service , or in capite , and are to be discharged of all wardship , &c. caption ( captio ) when a commission is executed , and the commissioners names subscribed to a certificate , declaring when and where the commission was executed , that is called the caption ; which commonly begins thus — virtute istius commissionis nos , &c. or executio istius commissionis patet in quadam schedula annexata , &c capture ( captura ) the taking a prey , a little gain ; an arrest , or seisure . anno car. . cap. . caput baroniae , is the castle or cheif seat of a nobleman , which is not to be divided among daughters ( if there be no son ) but must descend to the eldest daughter , caeteris filiabus aliundè satisfactis . carecta & carectata , ( sax. cret , unde cart ) a cart , or cart-load . — facient precarias de caruca & carecta , i. de aratro & carro . custumar . prior. lewes , m. s. — quinque carectatas clausturae , ad praedictae terrae clausturam sustinendam . mon. angl. . par . fol. . a. caretarius , a carter . sciant — quod ago herewardus pril dedi — in liberam puram & perpetuam eleemosinam deo & altari b. mariae in conventuali ecclesia leominstr . xii d annui reditus provenientes de quodam mesuagio in marisco quod fuit ricardi caretarii , &c. sine dat. ex libro cart. priorat . leominstr . see carreta . cark , is a quantity of wool , thirty whereof make a sarpler . anno hen. . cap. . see sarpler . carno , seems to signifie an immunity or priviledge . cromp. jurisd . fol. . prior de melton se & homines suos immunes clamat ab omnibus amerciamentis in foresta & ab omnibus geldis , footgeldis , buckstals , tritis , carno & sumag . &c. itin. pick. fol. . b. quaere . carpemeals , a course kinde of cloth , made in the north of england ; and mentioned anno jac. cap. . carreta ( aliàs carrecta ) was anciently used for a carriage , wain or cart-load . sciant praesentes & futuri , quod ego henricus de ribesford dedi — rogero filio ade pistonis pro homagio & servicio suo totum pratum meum de wiggemore . reddend . inde annuatim mibi & haeredibus meis ipse & haredes sui unam carretam soeni rationabilem & bene foenatam , &c. sine dat . penes tho. bridgwater gen . carrick or carrack ( carrucha ) a ship of great burden ; so called of the italian word carico or carco , a burden or charge . mentioned rich. . cap. . cartel . see chartel . carucage ( carucagium ) as hidage was a taxation by hides of land ; so carucage was , by carucata s of land. — dederunt s. edmundo de qualibet carucata terrae in toto episcopatu quatuor denarios annuos , quod usque modo , ea de causa , carucagium est appellatum . mon. angl par . fol. . a. carrucate or carve of land ( carrucata terrae , of the fr. charrue , i. aratrum ) is a certain quantity of land , by which the subjects have sometimes been taxed ; whereupon the tribute so levied , was called carvagium . bracton , lib. . cap. . num . . carucata t●rrae , a plough land , may contain houses , mills , pasture , meadow , wood , &c. coke on littl. sect. . carrucata is sometimes also used for a cart-load , — una carrucata ligni in foresta nostra , quae appellatur defensa . mon. angl. . par . fol. . a. littleton , cap. tenure in soccage , saith that soca idem est quod caruca , a soke or plough-land are all one . yet stow in his annals , pag. . says , the same king henry took carvage , that is two marks of silver of every knights fee , towards the marriage of his sister isabel to the emperor : where carvage cannot be taken for a plough-land , except there were some other farther division , whereby to raise of every plough-land so much , and so consequently of every knights fee , that is , of every acres , two marks of siver . rastal , in his exposition of words , says , carvage is to be quit , if the king shall tax all the land by carves , that is , a priviledge , whereby a man is exempted from carvage . skene says , it contains as great a portion of land as may be labored and tilled in a year and day by one plough , which also is called hilda or hida terrae , a word used in the old british laws . lamb. in the end of his eirenarcha translates carrucatam terrae , a plough-land . the word carve is mentioned in the statutes of wards and relief , made edw. . and in magna char. cap. . anno facta est pax inter johannem regem angliae & p. regem franciae , &c. et mutuavit regi franciae millia marcarum , pro quibus collectum est carvagium in anglia , scil . iii s. pro quolibet aratro . ex registro priorat . ●e dunstaple in bibl. cotton . see coke on littl. fol. . a. cassatum & cassata , habitaculum cum terra idonea ad unam familiam alendam ; alias casamentum ; saxonibus nostris ride ; bedâ , familia . ego forterus , famulus famulorum dei , pro redemptione animae meae , unum cassatum dedi aldberto abbati , quae sita est juxta fluvium aesee , ad portam quae dicitur bledenithe ad insulam parvam , & ad ecclesiam beati martini confessoris in propriam substantiam . habendum , donandumque cuicunque voluerit . qui hanc cartam infringere temptaverit , sciat seipsum a communione sanctorum separatum & ab omnipotenti deo. + ego forterus consensi & subscripsi . acta est autem haec donatio anno dcc . xii . indictione prima . ex reg. glaston : caenob . penes rad. sheldon arm. castel ( castellum ) is well known . certum est regis hen. . temporibus castella in anglia extitisse . every castle contains a mannor , so as every constable of a castle , is constable of a mannor . part. instit . fol. . castellain ( fr. chastellain ) the lord , owner , or captain of a castle , or sometimes the constable of a castle , or fortified house . bracton , lib. . tract . . cap. . and lib. . cap. . num . . and used in like sence , edw. cap. . it is sometimes taken for him that hath the custody of one of the kings mansion houses , though not a castle or place of defence . part. inst . fol. . manwood , part. . pag. . saith , there is an officer of the forest called castellanus , who had the command of all or part of the forest . of the use and extent of this officer in france , see cotgraves dictionary , verbo chastellain . castelward ( castelgardum vel wardum castri ) is an imposition laid upon such as dwell within a certain compass of any castle , towards the maintenance of such as watch and ward the castle . magna charta , cap. . and hen. . cap. . it is sometimes used for the very circuit it self , which is inhabited by such as are subject to this service ; as in stows annals , pag. . — et capere ibidem castleward , viz. de qualibet districtione infra feodum ipsius ducis capt . ad castrum ( de halton ) ducti & ibidem una de causa , si per solam noctem pernoctaverit , quatuor denar . pl. apud cestriam , edw. . casu consimili , is a writ of entry , granted , where tenant by curtesie , or tenant for life , or for anothers life , aliens in fee or in tail , or for term of anothers life . and it takes name from this , that the clerks of the chancery did , by their common consent , frame it to the likeness of the writ called in casu proviso , according to the authority given them by the stat. westm . . cap. . which ( as often as there happens any new case in chancery , something like a former , yet not specially fitted by any writ ) authorises them to lay their heads together , and to frame a new form , answerable to the new case , and as like some former , as they may . and this writ is granted to him in reversion , against the party to whom the said tenant so aliens to his prejudice ; and in the tenants life time . the form and effect whereof , read more at large in fitz. nat. br. fol. . casu proviso , is a writ of entry , given by the statute of glocester , cap. . in case where a tenant in dower , aliens in fee , or for term of life , or in tail , and lies for him in reversion against the alienee , fitzh . nat. br. fol. . catals . see chatels . catallis captis nomine districtionis , is a writ that lies within a borough , or within a house , for rent going out of the same ; and warrants a man to take the doors , windows , or gates , by way of distress for the rent . old nat. br. fol . catallis reddendis , is a writ which lies , where goods , being delivered to any man to keep till a certain day , and are not upon demand delivered at the day . it may be otherwise called a writ of delivery . see more of it in the reg. of writs , fol. . and in old nat. br. fol. . this is answerable to actio dispositi in the civil law. catchpol ( chachepollus & cacepollus , quasi , one that catches by the poll ) though now taken as a word of contempt , yet in ancient times , it was used , without reproach , for such as we now call sergeants of the mace , bailiffs , or any other that use to arrest men upon any action . anno edw. . stat. . cap. . — hospitalarii tenent in hereford unum mesuagium quod philippus filius odonis tenuit per seriantiam chachepolli , quod eis legavit in puram eleemosynam . rot. de seriantiis in heref. temp . hen. . in custod . camerar . scaccarii . cathedral . see church . cathedratick ( cathedraticum ) is a sum of s. pa●d to the bishop by the inferior clergy , in argumentum subjectionis & ob honorem cathedrae . see hist . of procurations and synodals , pag . caulceis ( anno hen. . cap. . ) caucies , ( edw. . . ) i think it should be written causways from the old french word cauz , now caillon , a flint , and is well known to signifie ways pitched with flint , or other stone ; in lat. calceta — pro ponte & calceto reparand . pat. hen. . pag. . m. . i have also seen it written calceya , casea , and calsetum , in old records . caursines ( caursini ) were italians by birth , and came into england about the year , terming themselves the popes merchants , driving no other trade then letting out money , and had great banks thereof in england , and differed little from jews , save that they were rather more merciless to their debtors . some will have them called caursines , quasi , causa ursini , bearish and cruel in their causes ; others caursini , quasi , corrasini , from scraping all together . the theu bishop of london excommunicated them . see matth. paris , p. . causam nobis significes , is a writ directed to a major of a city , or town , &c. who was formerly by the kings writ , commanded to give seifin to the kings grantee of any lands or tenements , and delays to do it , willing him to shew cause , why he so delays the performance of his duty . coke , lib. . casu , communaltie des sadlers , fol. . b. causa matrimonii praelocuti , is a writ , which lies in case where a woman gives lands to a man in fee , to the intent he shall marry her , and refuseth to do it in reasonable time , being thereunto required . the form and further use of it , see in reg. of writs , fol. . and fitz. nat. br. fol. . cautione admittenda , is a writ that lies against a bishop , holding an excommunicate person in prison for his contempt , notwithstanding he offers sufficient caution or assurance to obey the orders and commandments of holy church from thenceforth . the form and further effect whereof , see in reg. of writs , pag. . and fitz. nat. br. fol. . caya , a key , or water-lock ; from the sax. caeg. see kay . ceapgild ( sax. ceap , pecus & gild , solutio ) pecudis seu catalli restitutio . cellerarius alias cellarius , officialis est in monasterio qui fratrum stipendia servat & administrat . m. s. century . see hundred . cepi corpus , is a return made by the sheriff , upon a capias or other process for the like purpose , that he hath taken the body of the party . fitz. nat. br. fol. . cerage ( ceragium ) see waxshot . cert money ( quasi , certain money ) head-money or common fine , paid yearly by the resiants of several mannors to the lords thereof , pro certo letae , for the certain keeping of the leet , and sometimes to the hundred . as the mannor of hook , in dorsetshire , pays cert-money to the hundred of egerdon . this in ancient records is called certum letae . see common fine . certificat ( lat. ) is used for a writing made in any court to give notice to another court of any thing done therein . for example , a certificat of the cause of attaint is a transcript made briefly by the clerk of the crown , clerks of the peace , or of assise , to the court of kings bench , containing the tenor and effect of every indictment , outlary , or conviction , or clerk attainted , made or pronounced in any other court , anno h. . cap. . broke , fol. . certification of assise of novel disseisin , &c. ( certificatio assisae novae disseisinae , &c. ( is a writ granted for the reexamining or review of a matter passed by assise before any justices . of which see reg. of writs , f. . and the new book of entries , verbo , certificat of assise . this is used , when a man ( appearing by his bailiff to an assise brought by another , hath lost the day ; and having something more to plead for himself , as a deed of release , &c. which the bailiff did not , or might not plead for him ) desires a farther examination of the cause , either before the same justices , or others ; and obtains letters patent to them to that effect . ( the form of which letters , see in fitz. nat. br. fol. . ) and that done , brings a writ to the sheriff , to call , both the party for whom the assise passed , and the jury that was empaneld on the same , before the said justices at a certain day and place . and it is called a certificat , because therein mention is made to the sheriff , that upon the parties complaint of the defective examination , or doubts yet remaining upon the assise pa●sed , the king hath directed his letters patent to the justices , for the better certifying themselves , whether all points of the said assise were duly examined . of this read bracton , lib. . cap. . num . . and horns mirror , lib. . certificando de recognitione stapulae , is a writ directed to the major of the staple , &c. commanding him to certifie the lord chancellor of a statute staple taken before him , in case where the party himself detains it , and re●use h 〈…〉 bring it in . reg. of writs , fol. . b. the like may be understood of certificando de statuto mercatorio , fol. . and de certificando in cancellariam de inquisitione de idemptitate nominis , fol. . and certificando quando recognitio , &c. and certificando quid actum est de brevi super statutum mercatorium , fol. . and certificando si loquela warrantiae , fol. certiorari , is a writ , issuing out of the chancery to an inferior court , to call up the records of a cause there depending , that conscionable justice may be done therein , upon complaint made by bill , that the party , who seeks the said writ , hath received hard dealing in the said court. see the divers forms and uses of it in fitz. nat. br. fol. . as also the register , both original and judicial in the tables , verbo , certiorari . crompton , in his justice of peace , fol. . says , this writ is either returnable in the kings bench , and then hath these words ( nobis mittatis ) or in the chancery , and then hath in cancellaria nostra , or in the common bench , and then , justiciariis nostris de banco . cessavit , is a writ that lies in divers cases , as appears by fitz. nat. br. fol. . upon this general ground , i. that he against whom it is brought , hath for two years neglected to perform such service , or to pay such rent , as he is tied to by his tenure , and hath not upon his land or tenements sufficient goods or cattle to be distrained . see fleta , lib. . cap. . sect . visa sunt . see cessavit de cantaria . cessavit de feodi firma . cessavit per biennium , in reg. of writs , fol. , . and new book of entries , verbo , cessavit . it lies not , but for annual service , as ●eat , and such like , not for homage or fealty . cesses ( anno hen. . cap. . ) seems to signifie assessments or taxes . cesse or ceasse in ireland , is an exaction of provision of victuals at a certain rate for the deputies family , and the soldiers in garison . sir rich. bakers chron. fol. . cession ( cessio ) a ceasing , yielding up or giving over . si un farson ou dean en angliterre prist un evesquery en ireland , ceo fait le primier esglise void per cession . latches rep. fol. . — ratione vacationis prioratus praedicti , per cessionem fratris rogeri de wellington , ultimi prioris , &c. claus . edw. . pag. . m. . cessor ( lat. ) a loyterer or idle fellow ; but we use it for him who ceaseth , or neglects so long to perform a duty belonging to him , as he thereby incurs the danger of law , and is liable to have the writ cessavit brought against him . old nat. br. fol. . and note where it is said the tenant cesseth , without any more words , is to be understood , that the tenant ceaseth to do what he ought , or is bound to do by the tenure of his lands or tenement . cessure or cesser , is also used for a ceasing ; giving over , or departing from . westm . . cap. . cestui qui vie ( in true french , cestui a vie de qui ) is he for whose life any land or tenement is granted . perkins , tit . grants , . cestui que use ( an abstract of the fr. cestui al use de qui ) is an usual phrase , signifying him to whose use any other man is enfeoffed in any lands or tenements . see the new book of entries , verbo , uses . and in replevin , fol. . colum . . and , verbo , trespass , fol. . and fol. . a , b. col . . num . . anno rich. . cap. . and coke , lib. . fol. . anno car. . cap. . cestui qui trust , is he who hath a trust in lands or tenements committed to him for the benefit of another . anno car. . cap. . chafewax , is an officer in chancery , that fits the wax for the sealing of the writs , and such other instruments as are there made to be issued out . so in france , calefactores cerae sunt , qui regiis literis in cancellaria ceram imprimunt . corasius . chaffers ( anno edw. . cap. . ) seem to signifie wares or merchandize ; for chaffering is yet used for buying and selling . chaldron or chalder of coals , contains thirty six bushels heape up , and according to the bushel sealed for that purpose at guildhal in london . annis & car. . cap. . it is written chawdren , anno hen. . cap. . perhaps from the fr. chaud , i. hot . challenge ( from the fr. chalenger , i. sibi asserere ) is used for an exception taken , either against persons or things ; persons , as , in assise , to the jurors , any one , or more of them ; or in case of felony , by the prisoner at the bar , bracton , lib. . tract . . cap. . things , as against a declaration . old nat. br. fol. . challenge to the jurors , is either made to the array , or to the polls : to the array is , when the whole number is excepted against , as partially empanelled : to , or by the poll , is when some one or more are excepted against , as not indifferrnt . challenge to the jurors , is also divided into challenge principal , and challenge per cause , i. upon cause or reason . challenge principal , otherwise called peremptory , is that which the law allows without cause alleaged , or further examination . lamb. eiren. lib. . cap. . as a prisoner at the bar , arraigned upon felony , may peremptorily challenge , one after another , of the jury empanelled upon him , alleaging no cause , but his own dislike , and they shall be still put off , and new taken in their places . but in case of high treason , no challenge peremptory is allowed . anno hen. . cap. . yet there seems to be a difference between challenge principal , and challenge peremptory ; this being used onely in matters criminal , and barely without cause alleaged , more then the prisoners own fancy . stams . pl. cor. fol. . that , in civil actions for the most part , and with assigning some such cause of exception , as , being found true , the law allows . for example , if either party alleage , that one of the jurors is the son , brother , cosin , or tenant to the other , or married his daughter ; this exception is good ( if true ) without further examination of the parties credit . how far this challenge upon kinred extends , see in plowden , casu vernon , fol. . also in the plea of the death of a man , and in every real action , and in every action personal , where the debt or damages amount to forty marks , it is a good challenge to any juror , that he cannot dispend ● per annum of freehold , anno hen. . cap. . the ground of this challenge , you may see in fleta , lib. . cap. . challenge upon reason or cause , is , when the party does alleage some such exception against one , or more of the jurors , as is not forthwith sufficient , upon acknowledgment of the truth of it , but rather arbitrable and considerable by the rest of the jurors ; as , if the son of the juror have married the daughter of the adverse party . kitchin , fol. . where you may read , what challenges are commonly accounted principal , and what not . see the new book of entries , on this word challenge ; which was anciently latined by calumnia , as appears by bracton , lib. . tract . . cap. . see coke on littl. fol. , , &c. and calangium . chamberdekins or chaumberdakins , were certain irish begging priests , banished england . anno hen. cap. , . chamberer , is used for a chamber-maid . anno hen. . cap. . chamberlain ( camerarius ) is diversly used in our chronicles , laws , and statutes ; as lord great chamberlain of england , lord chamberlain of the kings house ; the kings chamberlain ( anno edw. . cap. . — rich. . cap. . ) to whose office it especially appertains to look to the kings chambers and wardrobe , and to govern the under officers belonging thereto . fleta , lib. . cap. , . chamberlain of any of the kings courts , edw . cap. . chamberlain of the exchequer , hen. . stat. . and edw. . cap. . chamberlain of north-wales . stow , pag. . chamberlain of chester , and chamberlain of the city of london . crompt . jurisd . fol. . to which chamberlainships of london and chester , do belong the receiving all rents and revenue appertaining to those cities ; and to the chamberlain of chester , ( when there is no prince of wales , and earl of chester ) the receiving and return of all writs coming thither out of any of the kings courts . there are two officers of this name in the exchequer , who keep a controlment of the pells of receipt and ●xitus , and certain keys of the treasure and records , and the keys of the treasury , where the leagues of the kings predecessors , and divers ancient books , as domesday , and the black book of the exchequer remain . this officer is mentioned in the statute & hen. . cap. . there are also under chamberlains of the exchequer , which see in under chamberlain . the latin word seems to express the function of this officer ; for camerarius dicitur a camera ( i. testudine sivè fornice ) quia custodit pecunias , quae in cameris praecipuè reservantur . champarti ( from the fr. champ , a field and parli , divided ; because the field or land in question , is commonly divided between the champartor , who maintains the sute , and the person in whose name and right he sues ) signifies a maintenance of any man in his sute , upon condition to have part of the thing ( be it land or goods ) when it is recovered . this seems to have been an ancient grievance in our nation ; for nowithstanding the several statutes of edw. . cap. . — edw. . c. . — edw. . c. . edw. . stat. & . and rich. . cap. . and a form of writ framed to them ; yet edw. . cap. . it was again enacted , that whereas a former statute provided redress for this in the kings bench onely ( which in those days followed the court ) from thenceforth it should be lawful for justices of the common pleas , and justices of assise , in their sessions , to enquire , hear , and determine this , and such like cases , as well at sute of the king , as of the party . how far this writ extends , and the divers forms of it applied to several cases , see fitz. nat. br. fol. . reg. of writs , fol. . and new book of entries , verbo , champarti . every champarti implies a maintenance , crompt . jurisd . fol. . see also part. inst . fol. . champartors , be they , who move pleas or sutes , or cause them to be moved , either by their own procurement , or by others . and sue them at their proper costs , to have part of the land in variance , or part of the gains . anno edw. . stat. . in fine . champion ( campio ) is taken not onely for him , that fights the combat in his own case , but for him also that does it in the place or quarrel of another . bracton , lib. . tract . . cap. . num . . who also seems to use this word for such as held of another by some service ; as , campiones faciunt homagium domiuo suo , lib. . cap. . hottoman de verbis feudalibus , defines it thus , campio est certator pro alio datus in duello , a campo dictus , qui circus erat decertantibus definitus . and therefore it is called campfight . see combate , and sir edward bishes notes upon upton , where fol. . you will finde that henricus de fernbureg , for thirty marks fee , did by a charter under his seal , covenant to be champion for roger , abbot of glastonbury . anno hen . see inst . fol. . champion of the king ( campio regis ) whose office is , at the coronation of our kings , to ride into westminster hall armed cap●a●pe , when the king is at dinner there , and throw down his gantlet by way of challenge , pronounced by a herauld ; that if any man shall deny or gain-say the kings title to the crown , he is there ready to defend it in single combat , &c. which being done , the king drinks to him , and sends him a gilt cup with a cover full of wine , which the champion drinks , and hath the cup for his fee. this office ( ever since the coronation of king richard the second , when baldwin frevile exhibited his petition for it ) was adjudged from him to sir john dymock , his competitor ( both claiming from marmion ) as producing better records and evidence ; and hath continued ever since in the worthy family of dymock , who hold the mannor of scrivelsby in lincolnshire , hereditarily from the marmions , by grand sergeanty , viz. that the lord thereof shall be the kings champion , as abovesaid . camd. in part . fin. mich. hen. . accordingly sir edward dymock performed this office at the coronation of his majesty , king charles the second , april . . chancellor ( cancellarius ) this officer in late times is greatly advanced , not onely in our , but in other kingdoms : for he is the chief administrator of justice , next to the soveraign . all other justices in this kingdom are tied to the law , and may not swerve from it in judgment ; but the chancellor hath the kings absolute power to moderate the written law , governing his judgment by the law of nature and conscience , and ordering all things juxta aequum & bonum . wherefore stanford ( in his praerog . cap. . fol. . ) says , the chancellor hath two powers , one absolute , the other ordinary ; meaning , that , though by his ordinary power in some cases , he must observe the form of proceeding , as other inferior judges , yet in his absolute power , he is not limitted by the written law , but by conscience and equity , according the circumstances of matter . and though polydor virgil , an alien , undertaking to write the history of england , supposed he did not mistake , when he makes our william the conqueror , the founder of our chancellors ; yet our industrious antiquary mr. dugdale can shew us his error in the many chancellors of england , long before that time , which are mentioned in his origines juridiciales , and catalogue of chancellors , whose great authorities under their kings , were in all probability drawn from the reasonable customs of neighbor nations , and the civil law. he that bears this magistracy , is called the lord chancellor of england , and is made so per traditionem magni sigilli sibi per dominum regem , and by taking his oath . and by the statute eliz. cap. . the lord chancellor and keeper , have one and the same power ; and therefore since that statute , there cannot be a lord chancellor , and lord keeper , at one and the same time , but before there might , and hath been . yet see keeper see fleta , lib. . cap. , . and cokes instit . fol. , . divers inferior officers are also called chancellors , as chancellor of the exchequer ( anno hen . cap. . ) whose office hath been thought by many to have been created for the qualifying extremities in the exchequer : he sits in the court , and in the exchequer chamber , and with the rest of the court , orders things to the kings best benefit . he is always in commission with the lord treasurer , for letting the lands that came to the crown by the dissolution of abbeys , or otherwise ; and hath by the statute of hen. . cap. . power with others , to compound for the forfeitures upon penal statutes , bonds , and recognizances , entred unto the king : he hath also a great authority and jurisdiction in the manage and dispose of the royal revenue , and concerning the first fruits , as appears by the acts for uniting them to the crown . chancellor of the dutchy of lancaster , ( anno edw. . cap. . and anno ejusdem , cap. . ) whose office is principal in that court , to judge and determine all controversies between the king , and his tenants of the dutchy-land , and otherwise to direct all the kings affairs belonging to that court. chancellor of the order of the garter . stows annals , pag. . chancellor of the universities , anno hen. . cap. . and anno hen. . cap. . chancellor of the court of augmentations , hen. . cap. . — ejusdem , cap. . & ejusdem , cap. . chancellor of the first fruits . hen. . cap. . chancellor of courts . hen. . cap. . chancellor of the diocess , hen. . cap. , &c. chance medley ( from the fr. chance , i. lapsus and mesler , i. miscere ) signifies the casual slaughter of a man , not altogether without the fault of the slayer . stanf. pl. cor. lib. cap. . calls it homicide by misadventure . west calls it homicide mixt ( part. . symbol . tit . indictments , sect. . ) and there defines it thus ; homicide mixt is , when the killers ignorance or negligence is joyned with the chance ; as if a man lop trees by a highway side , by which many usually travel , and cast down a bough , not giving warning to beware of it , by which bough one passing by , is by chance slain . in this case he offends , because he gave no warning , that the party nigh have taken better heed . see skene , verbo , melletum , who says this is called chaudmelle in scotland . chancery ( cancellaria ) is the grand court of equity and conscience , moderating the rigor of other courts most strictly tied to the letter of the law , whereof the lord chancellor of england , is the chief judge . crompt . jurisd . fol. . or else the lord keeper of the great seal , since the statute of eliz. cap. . the officers belonging to this court , are the lord chancellor or keeper of the great seal , who is sole judge here ; the master of the rolls , ( anciently called gardein des rolls ) who in the lord chancellors absence , heareth causes and gives orders , instit . fol. . twelve masters of the chancery , who are assistants , and sit by turns on the bench ; the six clerks , who have each of them about fifteen clerks under them , in nature of atturneys in the court ; two chief examiners , who have five or six clerks a piece ; one chief register , who hath usually four or five deputies . the clerk of the crown , the warden of the fleet , the usher , sergeant at arms , and crier of the court ; the cursiters and their clerks ; the clerks of the petty-bag ; the clerk of the hanaper , the comptroller of the hanaper ; the clerk of appeals ; the clerk of the faculties ; the scaler , the chafe-wax ; the clerk of the patents , clerk of presentations , clerk of dismissions , clerk of licences to alienate , clerks of the enrolments , clerks of the protections , clerk of the subpenas , clerk of the affidavits , &c. which see described in their several places . see cokes inst . fol. . changer , is an officer belonging to the kings mint , whose function cheifly consists , in exchanging coyn for bullion , brought in by merchants , or others . anno hen. . cap. . where it is written ( after the old way ) chaungeour . chantry . see chauntry . chapel ( capella ) fr. chapelle , i. aedicula ) is of two sorts , either adjoyning to a church , as parcel of it , which persons of quality build , ut ibidem familiaria sepulchra sibi constituant ; or else separate from the mother church , where the parish is wide , and is commonly called a chappel of ease ; because it is built for the ease of one or more parishioners that dwell far from the church , and is served by some inferior curate , provided at the charge of the rector , or of him that hath benefit by it , as the composition or custom is . there is also a free chappel , which seems to be such as hath perpetual maintenance towards the upholding it , and the curates stipend , by some lands or rents charitably bestowed on it , without the charge of the rector or parish . anno hen. . cap. . anno edw. . cap. . chapelry ( capellania ) is the same thing to a chappel , as parish is to a church , i. the precinct and limits of it . mentioned in the stat. car. . cap. . — capellania sancti oswaldi , mich. edw. . coram rege , glouc. chaperon ( fr. ) a hood or bonnet , mentioned in the stat. rich. . . and among heraulds , it is that little escocheon , which is fixed in the forehead of the horses that draw the herse at a funeral . chapiters ( lat. capitula , fr. chapiters , i. the chapters of a book ) signifies a summary or content of such matters as are to be enquired of , or presented before justices in eyr , justices of assize , or of peace in their sessions . this it is used anno edw. . cap. . — and that no clerk of any justice , escheator , or commissioner in eyr , shall take any thing for delivering chapters , but onely clerks of justices in their circuits . and again , anno ejusdem , cap. . — the sheriff shall certifie the chapiters before the justices in eyr , how many writs he hath , and what . &c. britton ( cap. . ) useth the word in the same signification . chapiters are now most usually called articles , and are delivered by the mouth of the justice in his charge , to the enquest ; whereas in ancient time ( as appears by bracton and britton ) they were ( after an exhortation given by the justices for the good observation of the laws , and kings peace ) first read distinctly in open court , and then delivered in writing to the grand enquest , which the grand jury or enquest were likewise to answer upon their oaths , affirmatively or negatively , and , not as they do now , put the judges to make long and learned charges to little , or no purpose , and forswearing or wilfully not remembring their knowledge of transgressors , against the design and enquiry of those articles , do think their oaths and duty to god and the king , and their countrey , well enough satisfied and performed , if they onely present those few , of many more , misdemeanors , which are brought unto them by way of indictments . the same order of articles , lambert wishes might still be observed . eiren. lib. . cap. . pag. . horn ( in his mirror of justices ) calls them articles , and expresses what they were wont to contain . lib. . cap. des articles in eyr . chaplain or chapellain ( capellanus ) is now most commonly taken for him , who is depending on the king , or other noble person , to instruct him and his family in spirituals , and say divine service in his house , where commonly they have a private chappel for that purpose . as anno hen. . cap. . which ordains what person may priviledge one or more chaplains to discontinue from their benefices , in respect of their particular service . chapter ( capitulum ) signifies congregationem clericorum in ecclesia cathedrali , conventuali , regulari vel collegiata , and in another sence , locum in quo siunt communes tractatus collegiatorum . it hath other significations , not worth mentioning here , which you may read in linwoods provin . gloss . verbo , capitulum . this collegiat company or corporation , is metaphorically termed capitulum , ( signifying originally a little head ) it being a kinde of head , not onely to rule and govern the diocess , in the vacation of the bishoprick , but also in many things to advise the bishop , when the see is full . see panormitan , in cap. capitulum extra de rescriptis . — ad dedicationes , ad synodos , ad capituia vonientibus sit summa pax. ll. edwardi confess . cap. . charre of lead . la charre de plumbo constat ex forme 〈…〉 s , & quaelibet formella continet petras , exceptis duabus libris , & quaelibet petra constat ex libris . assisa de ponderibus rob. r. scot. cap. . sect . . chart ( charta ) paper , parchment , or any thing to write on ; also a card , mentioned car. . cap. . see charter . chartel ( fr. cartel ) a letter of defiance , or a challenge to a ( single ) combat : in use when those combats were in practise , to decide difficult , and not otherwise to be determined controversies in law. charter ( charta , fr. chartres , i. instrumenta ) is usually taken for written evidence of things done between man and man. whereof bracton , lib. . cap. . num . . says thus , fiunt aliquando donationes in scriptis , sicut in chartis , ad perpetuam rei memoriam , propter brevem hominum vitam — and ( num. . ) & sciendum quod chartarum alia regia , alia privatorum ; & regiarum , alia privata , alia communis , & alia universalis . item , privatorum alia de puro feoffamento & simplici , alia de feoffamento conditionali sive conventionali , & secundùm omnia genera feoffamentorum fieri potest . item privatorum alia de recognitione pura vel conditionali . item alia de quiete clamantia , & de confirmatione , &c. britton likewise in his chapter , divides charters into those of the king , and those of private persons . charters of the king , are those whereby the king passeth any grant to any person or more , or to any body politick ; as a charter of exemption , that a man shall not be empanel'd upon any jury . kitchin , fol. . and . charter of pardon , whereby a man is forgiven a felony , or other offence committed against the kings crown and dignity . brook , tit . charter of pardon . charter of the forest , wherein the laws of the forest are comprised . anno hen. . cromp. jurisd . fol. . pupilla oculi . par . . cap. manwood , pag. . fol. . where he sets down the charters of canutus , and fol. . that which was made hen. . with the charter of the forest . of these charters you have also a long discourse in fleta , lib. . cap . who particularly expounds every substantial part of a deed of gift . see magna charta . charter-land ( terra per chartam ) is such as a man holds by charter , that is by evidence in writing , otherwise called freehold . anno hen. . cap. . and kitchin , fol. . this in the saxons time was called bocland , which was held ( according to lambert in his explication of those words , verbo , terra ex scripto ) with more commodious and easier conditions , then folkland was ; that is , land held without writing ; because that was haereditaria libera atque immunis ; whereas , fundus sine scripto censum pensitabat annuum , atque officiorum quadam servitute est obligatus ; priorem viri plerumque nobiles atque ingenui , posteriorem rustici ferè & pagani possidebant . illam nos vulgò freehold & per chartam ; hanc ad voluntatem domini appellamus . thus lambert . charter-party ( lat. charta partita , fr. chartre-parti , i. a deed or writing divided ) is that among merchants and sea-●aring men , which we commonly call a pair of indentures , containing the covenants and agreements made between them , touching their merchandise and maritime affairs . anno hen. . cap. . and car. . cap. . latches rep. fol. . ballo's case , and inst . fol. . chartis reddendis , is a writ which lies against him that hath charters of feo●ment entrusted to his keeping , and refuseth to deliver them . old nat. br. fol. . reg. of writs , fol. . chase , ( fr. chasse ) signifies two things : first , a driving cattle to , or from any place ; as to chase a distress to a fortlet . old nat. br. fol. . secondly , it is a place of receipt for deer , and wilde beasts , of a middle nature between a forest and a park , being commonly less then a forest , and not endued with so many liberties , as the courts of attachment , swain-mote , and justice-seat ; and yet of a larger compass , and stored with greater diversity , both of keepers and wilde beasts , or game , then a park . crompton in his jurisd . fol. . says , a forest cannot be in the hands of a subject , but it forthwith loseth its name , and becomes a chase ; and yet fol. . he says , a subject may be lord and owner of a forest , which though it seems a contradiction , yet both sayings are in some sort true . for the king may give or alienate a forest to a subject , yet so , as , when it is once in the subject , it loseth the true property of a forest ; because the courts called the justice-seat , swain-mote , and attachment , do forthwith vanish ; none being able to make a lord chief justice in fyr of the forest , but the king ; as manwood well observes par. . cap. . & . yet it may be granted in so large a manner , as there may be attachment , swain-mote , and a court equivalent to a justice seat , as appears by him in the same chapter , num . . so that a chase differs from a forest in this , because it may be in the hands of a subject , which a forest , in his proper and true nature , cannot ; and from a park , in that it is not enclosed , and hath not onely a larger compass , and more variety of game ; but of keepers also , and officers . see forest . chattels or catals ( catallia alias capitalia ) comprehend all goods moveable and immoveable , except such as are in nature of freehold , or parcel of it , as may be collected out of stamf. praerog . cap. . and anno eliz . cap. . yet kitchin , fol. . says , that money is not to be accounted goods or chattels , because it is not of it self valuable ; nor hawks and hounds , for they are ferae naturae . chattels are either personal or real . personal , may be so called in two respects : one , because they belong immediately to the person of a man , as a bow , horse , &c. the other , for that being any way injuriously withheld from us , we have no means to recover them , but personal actions . chattels real , are such as either appertain not immediately to the person , but to some other thing , by way of dependency , as a box with charters of land , apples upon a tree , or a tree it self growing on the ground . cromp. just . of peace , fol. . or else such as are issuing out of some immoveable thing to a person , as a lease or rent for term of years . see bracton , lib. . cap. num . . & . chattels are bona quaecunque mobilia & immobilia ; propriè tamen ea bonorum pars , quae in animalibus consistit , a quorum capitibus , res ipsae alias capita alias capitalia dicta sunt . spelman . chaumpert . — et quod tam praedictae xx . virgatae terrae , quam terrae , unde dicta quaterviginti quarteria srumenti annua proveniunt , de nobis in capite , per servitium , vocatum chaumpert , viz. undecimae garbae , nobis per manus tenentium to●rarum earundem , annuatim solvendae , tenentur . pat. edw. . pag. . m. . hospital . de bowes infra insulam de gernesey . chaunce-medley . see chance-medley . chaunter ( cantator ) a singer in the quire. anno eliz. cap. . at s. davids in pembrokeshire , the chaunter is next to the bishop , for there is no dean . cam britan. chauntry ( cantaria ) aedes sacra ; ideo instituta & dotata praediis , ut missa ibidem cantaretur pro anima fundatoris & propinquorum ejus . these were usually little chappels or particular altars in some cathedral or parochial church , and endowed with lands , or other revenue , for the maintenance of one or more priests , to officiate as abovesaid . mentioned hen. . cap. . — edw. . c. . & car. . cap. . of these chantries , there were forty seven belonging to s. pauls church in london ; for which , see mr. dugdales history of that church . sciant — quod ego reginaldus suard dedi — willielmo crumpe capellano cantariae beatae mariae de yarpol unam parcellam pasturae , &c. dat. apud leominstre die martis prox . post festum sancti hillarii , anno hen. . chawdren of sea-coals . anno hen. . cap. . see chaldron . check-roll , is a roll or book , containing the names of such as are attendants , and in pay to the king , or other great persons , as their houshold-servants . anno car. . cap. . it is otherwise called the checquer roll , anno hen. . cap. . anno hen. . cap. . and seems to be a word abstracted , or derived from the exchequer , which vide . clerk of the check , see in clerk chemin . see chimin . chensers ( anno h. . cap. . ) quaere if not such as paid tribute or cense ; quit-rent , or cheif rent ; for so the fr. censier signifies . cherset . see churchesset . chevage ( chevagium , from the fr. chef , i. caput ) signifies a tribute , or sum of money formerly paid by such as held lands in villanage or otherwise , to their lords in acknowledgment ; and was a kinde of head , or poll-money . whereof bracton , lib. . cap. . says thus , chevagium dicitur recognitio in sig num subjectionis & dominii de capite suo . it seems also to be used for a sum of money , yearly given to a man of power , for his countenance and protection , as to their cheif head or leader . lambert ( lib. . cap. . eirenarch . ) writes it chivage ; we now call it chiefage . est & apud wallos chevagii genus quod amabr vocant , principi walliae pro maritandis filiabus , olim ab omnibus ( ut asserunt ) hodie a quibusdam ( etiam liberis ) persolutum , says spelman on the word chevagium . see coke on littl. fol. . chevisance ( fr. chevissance ) an agreement or composition made ; an end or order set down between a creditor and a debtor ; sometimes taken for an indirect gain or booty . lo. verulam in his hen. . but in our statutes it is most commonly used for an unlawful bargain or contract . as hen. . cap. . eliz : c. . and & car. . cap. . chevitiae & chevisc● , hades at the end of ploughed lands . — novem acras terrae cum cheviscis ad ipsas pertinentibus . mon. angl par . fol . chief . see capite . chiefage . see chevage . chief pledge ( plegius vel vas capitalis ) anno hen. . cap. . see borowhead . childwit ( sax. ) signifies a power to take a fine of a bond-woman , unlawfully begotten with childe . prior habeat gersumam de nativa sua impraegnata sine licentia maritandi . ex registro priorat . de cokes ord . every reputed father of a base child , gotten within the mannor of writtel in com. essex , pays to the lord for a fine s , d. where it seems to extend as well to free as bond-women ; and the custom is there also called childwit . chimin ( fr. chemin , i. aditus , via ) signifies a way ; which is of two sorts . the kings high-way , and a private way . kitchin , fol. . the kings high-way ( chiminus regius ) is that , in which the kings subjects , and all others under his protection , have free liberty to pass , though the property of the soyl , where the way lies , may perhaps belong to some private man. a private way is that , in which one man or more have liberty to pass , either by prescription or by charter , through another mans ground . and this is divided into chimin in gross , and chimin appendant . kitchin , fol. . chimin in gross , is that way which a man holds principally and solely in it self ; chimin appendant is that which a man hath as appurtenant to some other thing . as , if he hire a close of pasture , with covenant for ingress and regress , through some other ground , in which , otherwise he might not pass . see coke on littl. fol. . chiminage ( chiminagium ) signifies a toll for wayfarage through the forest . cromp. jurisd . fol . telonium quod in forestis exigebant forestarii a plaustris & equis oneris causâ eò venientibus . charta forestae , cap. . nullus forestarius de caetero , qui non sit forestarius de feodo , reddens nobis firmam pro baliva sua , capiat chiminagium aliquod in baliva sua , &c. the feadists call it pedagium . this in poulton , fol. . is falsly printed chimmage ; and in a record in the tower , i finde chimage . chimney money , otherwise called hearth-money . by statute car. . cap. . every fire-hearth and stove of every dwelling , and other house within england and wales , ( except such as pay not to church and poor ) shall be chargeable with two shillings per annum , parable at michaelmas and lady-day , to the king , his heirs , &c. which payment is vu●gar●y called chimney-money . see smoak-silver and fuage . chirgemot , circgemot , or chirch gemot . ( sax ) forum ecclesiasticum . — quosque chirgemot discordantes inveniet , vel amore congreget , vel sequestret judicio . ll. hen. . cap . and inst . fol. . chirographer of fines , ( chirographus finium & concordarum , of the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , i. a writing of a man 's own hand , whereby he acknowledges a debt to another ) signifies that officer in the common-pleas , who ingrosseth fines in that court acknowledged into a perpetual record , ( after they are examined , and fully passed by other officers ) and that writes and delivers the indentures of them to the party . anno hen. . cap. . — hen. . . and fitz. nat. br. fol. . a. this officer makes two indentures , one for the buyer , another for the seller , and makes one other indented piece , containing also the effect of the fine , which he delivers to the custos brevium , which is called the foot of the fine . the chirographer also , or his deputy , proclaims all the fines in the court every term , according to the statute , and endorseth the proclamations , upon the backside of the foot thereof ; and always keeps the writ of covenant , and the note of the fine . see tabling of fines , anno eliz. cap. . and part. inst . fol. . chivage . see chevage . chivalry ( servitium militare ) comes from the fr. chivalier , i. eques ; and signifies a tenure of land by knights-service , whereby the tenant was bound to perform a service in war unto the king or the mesn lord , of whom he held by that tenure : the further explication of which tenure , and the several branches of it may be omitted , since by stat. car. . cap. . all tenures by knights-service of the king , or of any other person , knight-service in capite , or soccage in capite of the king , and the fruits and consequences thereof , hapned , or which shall or may happen , or arise thereupon , or thereby , are taken away and discharged : and all tenures of houses , mannors , lands , &c. shall be construed and adjudged for ever , to be turned into frée and common soccage , &c. choral ( choralis ) may relate to any person , that by vertue of any of the orders of the clergy , was in ancient time admitted to sit and serve god in the quire , in latin ( chorus . ) accordingly mr. dugdale ( in his history of s. pauls church , pag. . ) says , there were anciently six vicars choral belonging to that church . chose ( fr. ) thing : it is used with divers epithetes ; as chose local , is such a thing as is annexed to a place : for example , a mill is chose local . chose transitory seems to be that thing , which is moveable , and may be taken away or carried from place to place . kitchin , fol. : chose in actin , is a thing incorporeal , and onely a right , as an annuity , obligation for debt , a covenant , voucher by warranty , and generally all causes of suit , for any debt or duty , trespass or wrong , are to be accounted choses in action . and it seems chose in action may be also called chose in suspence ; because it hath no real existence , or being , nor can properly be said to be in our possession . broke , tit . chose in action . chop-chirch ( ecclesiarum permutatio ) is a word used hen. . . a. by the sence of which book , it was in those days a kinde of trade ; for the judges say , it was a lawful occupation , and a good addition ; yet brook in his abridgment calls it not an occupation , but a thing permissible by law. it was ( without doubt ) a nick-name given to those that used to change benefices : for to chop and change , is an usual expression to this day . i have also read church-chopper , for him that used to make such changes . — alii vero quorundam satorum zizaniae , subversorum justiciae , & inauditae abusionis inventorum , ut illis verbis utamur choppe-churches , communiter appellati , mediatione dolosa interveniente , execrabili ardore avaritiae , quandoque in subdolis permutationibus , hos nimia inaequalitate beneficiorum , ac illos quandoque optentis beneficiis , fucatis coloribus totaliter destituunt & defraudant ; in tantum quod ex inde de opulentibus effecti miseri , & fodere non valentes , aliquando inordinatâ concepta doloris anxietate deperiunt , & saepius in cleri & ecclesiae scandalum nimid egestatis penuriâ , mendicare miserabiliter compelluntur . litera missa omnibus episcopis suffragancis domini contra choppe-churches . an. . spelm. de conc. vol. . fol. . church-reve . a church-warden . praepositus ecclesiae or gardianus ecclesiae ; of whom , thus chaucer , speaking of the jurisdiction of archdeacons . of church-reves , and of testaments , of contracts , and lack of sacraments , &c. church-wardens ( ecclesiae gardiani ) are officers yearly chosen , by consent of the minister and parishioners , according to the custom of every place , to look to the church , church-yard , and such things as belong to both , and to observe the behavior of their parishioners , for such faults as appertain to the jurisdiction or censure of the court-ecclesiastick . these are a kinde of corporation , enabled by law to sue , and be sued for any thing belonging to the church , or poor of their parish . anno h. . cap. ult . see lambert in his duty of church-wardens . churchesset , ciricsceat , chirset , or curcscet ( sax. ) census vel tributum ecclesiae chirchescot . certam mensuram bladi tritici significat , quam quilibet olim sanctae ecclesiae die sancti martini , tempore tam britonum quam anglorum contribuerunt . plures tamen magnates , post romanorum adventum , illam contributionem secundum veterem legem moysi nomine primitiarum dabant : prout in brevi regis knuti , ad summum pontificem transmisso , continetur , in quo illam contributionem churchset appellant , quasi , semen ecclesiae . see ciricsceat . seldens hist . of tithes , pag. . — et de essarto & de prato & de chirset ejusdem villae , &c. cart. de anno edw. . num . . and in pat. edw. . par . . m. . it is written cherchez ; but the true saxon is cyricsceat . cinque ports ( quinque portus ) are those special havens that lie towards france , and therefore have been thought by our kings , to be such as ought most vigilantly to be preserved against invasion . in which respect , they have an especial governor or keeper , called , by his office , lord warden of the cinque ports , and divers priviledges granted them , as a peculiar jurisdiction , their warden having the authority of an admiral among them , and sending out writs in his own name . crompton in his jurisd . fol. . names the cinque ports , dover , sandwich , rye , hastings , winchelsea , rumney , hithe ; whereof two must either be added to the first institution , by some later grant , or be accounted as appendants to some of the rest . see gardein of the cinque ports , and the stat. hen. . cap. . see quinque portus . and inst . fol. . cippus , a pair of stocks to put offenders in . — habeant , nec non cippos & conclusoria in singulis villis , ad correctionem delinquentium . mon. angl. par . fol. . a. circuit of action ( circuitus actionis ) is a longer course of proceeding to recover the thing sued for , then is needful . as , if a man grant a rent-charge of x l. out of his mannor of dale , and after the grantee disseiseth the grantor of the same mannor , who brings an assise , and recovers the land , and xx l. damages ; which being paid , the grantee brings his action for x l. of his rent due , during the time of the disseisin , which he must have had , if no disseisin had been . this is called circuit of action , because ; whereas the grantor was to receive xx l. damages , and pay x l. rent , he might have received but x l. onely for damages , and the grantee might have kept the other x l. in his hands , by way of deteiner for his rent , and so have saved his action . terms ley. circumspecte agatis , is the title of a statute made in the thirteenth of edward the first . anno domini . prescribing certain cases to the judges , wherein the kings prohibition lies not . coke , lib. . fol. . lib. . fol. . and part. inst . fol. . circumstantibus ( i. by-standers ) signifies the supply or making up the number of jurors ( if any impaneld , appear not , or appearing be challenged by either party ) by adding to them so many of those that are present or standing by , as will serve the turn . h. . c. . and eliz. cap. . ciric seat ( sax. cyric-sceat , vectigal ecclesiasticum , frumenti tributum . ) church-scot , a certain tribute or payment made to the church , commonly of corn. fleta calls it circsed , quasi , semen ecclesiae debitum . joh. southam ad festum s. martini in yeme debet gallinam ( de redditu ) & gallinas de chirseat . custumar . monast . de bello . fol. . a. this tribute was anciently payable at the feast of s. martin , and sometimes at christmas , as appears by domesday , and called by sir edw. coke , church-seed , on littl. fol. . b. see churchesset . city ( civitas ) signifies with us , as it doth in other regions , such a town corporate , as hath a bishop and a cathedral church yet crompton in his jurisdictions , in reckoning our cities , leaves out ely , though it have a bishop and a cathedral church . anno eliz. cap. . westminster is called a city , and it appears by the statute hon. . cap. . that then there was a bishop of westminster : but by letters patent dated may , eliz. ( pursuant to an act of parliament of eliz. not printed ) the revenues of that late monastery were vested in the dean and chapter of the collegiate church of westminster , which hath caused error in the pleadings of some cases , by styling it the cathedral , for collegiate , church of westminster . cassanaeus de consuetud . burgun . pag. . saith , that france hath within its territories cities , and gives his reason , because there are so many seats of archbishops and bishops . yet sir edward coke : notes cambridge to be a city by ancient record ( viz. mich. rich. . rot. . ) though i finde no mention of its ever having been an episcopal see. on littl. fol. . b. and in the stat. hen. . cap. . it is called the town of cambridge . clack ; as to clack , force , and bard alias beard good wooll , anno hen. . cap. . whereof the first , viz. to clack wooll , is to cut off the sheeps mark , which makes it weigh less , and so yield the less custom to the king. to force wooll is , to clip off the upper and more hairy part of it ; to bard or beard it , is to cut the head and the neck from the rest of the fleece . claim ( clameum ) is a challenge of interest in any thing that is in the possession of another , or , at the least , out of his own ; as claim by charter , claim by descent , &c. old nat. br. fol. . si dominus infra annum clameum qualitercunque apposuerit . bracton , lib. . cap. . see the definition and divers sorts of claim , in plowden , casu stowel , fol. . a. clamea aomittenda in itinere per atturnatum , is a writ whereby the king commands the justices in eyre , to admit of ones claim by atturney , who is employed in the kings-service , and cannot come in his own person . reg. of writs , fol. . b. clap-bord ( anno eliz. cap. . ) is board cut in order to make cask or vessels . clarentius . see herald . claves insulae , i. the keys of the island . in the isle of man all ambiguous and weighty cases , are referred to twelve , whom they call claves insulae . clausum fregit . mr. somner , in his saxon dictionary , conceives the original of those much used words in our law-pleadings , might come from the saxon eder-bryce , which signifies hedge-breaking ( the boughs , which close the top of the hedge , being usually called etherings . ) clausum paschae . stat. of westm . . lendemaine de la cluse de pasche , that is , in crastino clausi paschae , or , in crastino octabis paschae , which is all one ; viz. the morrow of the utas of easter . part. inst . fol. . — ad curiam cum visu franc. pleg . tent . apud maurdin die jovis prox . post festum clausi paschae , anno edw. . testatum fuit quod , &c. clausum paschae , i. dominica in albis ; sic dictum , quòd pascha claudat . clausura heye — johannes stanley ar. clamat quod ipse & haeredes sui sunt quieti de clausura heye de macclesfield , scil . clausura unius rodae terrae circitèr hayam praedict . rot. plac. in itinere apud cestriam ; anno hen. . clergy ( clerus ) is diversly taken , sometime for the whole number of those , who are de clero domini , of our lords lot or share , as the tribe of levi was in judaea ; sometimes for a plea to an indictment , or an appeal , and is by stamf. ( pl. cor. lib. . cap. . ) thus defined . — clergy is an ancient liberty of the church , which hath been confirmed by divers parliaments , and is , when a priest , or one in orders , is arraigned of felony before a secular judge , he may pray his clergy , which is as much , as if he prayed to be delivered to his ordinary , to purge himself of the offence objected . and this might be done in case of murder . coke , lib. . fol. . a. this liberty is mentioned in articulis cleri . anno edw. . c. . and what persons might have their clergy , and what not , see stamf. pl. cor. lib. . cap. , & . yet there are many statutes made since he wrote that book , whereby the benefit of clergy is abrigded ; as anno eliz. cap. . — ejusdem , cap. . — ejusdem , cap. , , . — anno ejusdem , cap. . — ejusdem , cap. . ejusdem , cap . and ejusdem , cap. . & . of this see cromptons justice of peace , fol. — . and lambert eiren. lib. . cap. . and note , that the ancient course of law in this point , is much altered ; for by the statute of eliz : cap. . clerks are no more delivered to their ordinaries to be purged , but now every man , to whom this benefit is granted , though not in orders , is put to read at the bar , after he is found guilty , and convicted of such felony ; and so burnt in the hand , and set free for the first time , if the ordinaries commissioner or deputy standing by do say — legit ut clericus ; or otherwise he suffers death for his transgression . cowel . clerico admittendo , is a writ directed to the bishop , for the admitting a clerk to a benefice , upon a ne admittas tryed and found for the party that procures the writ . reg. of writs , fol. . clerico capto per statutum mercatorum , &c. is a writ for the delivery of a clerk out of prison , who is imprisoned upon the breach of a statute merchant . reg. of writs , fol. . clerico convicto commisso goalae in defectu ordinarii deliberando , is a writ for the delivery of a clerk to his ordinary , that was formerly convict of felony , by reason his ordinary did not challenge him according to the priviledges of clerks . reg. of writs , fol. . a. clerico infra sacros ordines constituto , non eligendo in officium , is a writ directed to the bailiffs , &c. that have thrust a bailiwick or beadleship upon one in holy orders , charging them to release him . reg. of writs , fol. . a. clerk ( clericus ) hath two significations ; one , as it is the title of him that belongs to the holy ministery of the church ; under which , where the canon law hath full power , are , not onely comprehended sacerdotes & diaconi , but also subdiaconi , cantores , acolyti , exorcistae , & ostiarii . and in this signification , a clerk is either religious ( otherwise called regular ) or secular . anno hen. . cap. . the other denotes those , who by their function or course of life , practise their pen in any court , or otherwise ; as , the clerk of the rolls of parliament , clerks of the chancery , &c. whose peculiar offices shall be set down in order . clerk of the ax ( clericus securis ) is an officer in the navy , whose function is to carry a silver ax , wherewith to mark and seise timber for the kings use in his navy , or otherwise , and mentioned in the stat. car. . cap. . where it is printed clerk of the acts , i suppose by mistake . clerk of the parliament rolls ( clericus rotulorum parliamenti ) is he that records all things done in the high court of parliament , and engrosseth them fairly in parchment rolls , for their better preservation to posterity . of these there are two , one of the lords house , another of the house of commons , cromp. jurisd . fol. . & . smith de repl. angl. pag. . see also vowels book ; touching the order of the parliament . clerk of the crown in chancery ( clericus coronae in cancellaria ) is an officer there , who , by himself or deputy , is continually to attend the lord chancellor , or lord keeper ; writes and prepares , for the great seal of england , special matters of state by commission , or the like , either immediately from his majesty , or by order of his council , as well ordinary as extraordinary , viz. commissions of lieutenancy , of justices itinerant , and of assises , of oyer and terminer , of goal delivery , and of the peace , with their writs of association , and the like . also , all general pardons upon grants of them , at the kings coronation , or at a parliament , where he sits in the lords house in parliament time ; info whose office the writs of parliament , made by the clerks of the pettibag , with the names of knights and burgesses , elected thereupon , are to be returned and filed . he hath also the making of all special pardons , and writs of execution upon bonds of statute staple forfeited , which was annexed to his office in the reign of queen mary , in consideration of his continual and chargeable attendance : both these before being common for every cursitor and clerk of the court of chancery to make . clerk of the crown ( clericus coronae ) is a clerk or officer in the kings bench , whose function is to frame , read , and record all indictments against traitors , felons , and other offendors , there arraigned or indicted upon any publick crime . he is otherwise termed clerk of the crown office. and anno hen. . cap. . he is called clerk of the crown of the kings bench. clerk of assise ( clericus assisorum ) is he that writes all things judicially done by the justices of assise in their circuits . cromp. jurisd . fol. . clerk of the chest ( anno car. . c. . ) keeps an accompt of the moneys collected , and kept in a chest , for the use of sick and maimed seamen and mariners . clerk of the estreats ( clericus extractorum ) is a clerk belonging to the exchequer , who termly receives the estreats out of the lord treasurers remembrancers office , and writes them out to be levied for the king. he also makes schedules of such sums estreated , as are to be discharged . see the practice of the exchequer , pag. . clerk of the pell ( clericus pellis ) is a clerk belonging to the exchequer , whose office is to enter every tellers bill into a parchment roll , called ( pellis . receptorum , ) and also to make another roll of payments , which is called pellis exituum , wherein he sets down by what warrant the money was paid . this officer is called in ancient records clericus domini thesauri . clerk of the warrants ( clericus warrantorum ) is an officer belonging to the court of common pleas , who entreth all warrants of atturney for plaintiff and defendant , and inrols all deeds of indentures of bargain and sale , which are acknowledged in the court , or before any judges out of the court. and he estreats into the exchequer all issues , fines , and amerciaments , which any way grow due to the king in that court , and hath a standing fee of ten pounds of the king , for making the same extreats . see fitzh . nat. br. fol. . clerk of the pettibag ( clericus parvae bagae ) is an officer of the chancery , of which sort there are three , and the master of the rolls their cheif . their office is to record the return of all inquisitions out of every shire ; to make all patents of customers , gangers , comptrollers , and aulnegers ; all conge de eslires for bishops ; all liberates upon extents of statute staples ; the recovery of recognisances forfeited ; and all elegits upon them ; the summons of the nobility , clergy , and burgesses to the parliament ; commissions directed to knights , and others of every shire , for assessing subsidies ; writs for the nominations of collectors for fifteenths ; and all traverses upon any office , bill , or otherwise ; to receive the fees for homages due to the lord great chamberlain ; of the nobility , bishops , &c. this officer is mentioned , hen. . cap. . clerk of the kings great wardrobe ( clericus magnae garderobae regis ) is an officer of the kings house , that keeps an accompt or inventary in writing , of all things belonging to the kings wardrobe . mentioned anno edw. . cap. . clerk of the market ( clericus mercati hospitii regis ) is an officer of the kings house ( anno edw. . cap. . and anno rich. . cap. . ) whose duty is to take charge of the kings measures , and to keep the standards of them , that is , the examples of all the measures that ought to be through the land : as of elns , yards , lagens , quarts , pottles , gallons , &c. of weights , bushels , and such like ; and to see that all measures in every place be answerable to the said standard . fleta , lib. . cap. , , , , . of which office , as also of our diversity of weights and measures , you may there finde a treatise worth the reading . britton also , in his chap. saith in the kings person , to this effect : we will that none have measures in the realm , but we our selves ; but that every man take his measures and weights from our standards . and so goes on with a tractat of this matter , that well shews the ancient law and practice in this point . touching this officers duty , you have also good statutes . anno rich. . cap. . and anno car. . cap. . see inst . fol. . clerk of the kings silver ( clericus argenti regis ) is an officer belonging to the court of common pleas , to whom every fine is brought , after it hath been with the custos brevium , and by whom the effect of the writ of covenant , is entred into a paper-book ; and , according to that note , all the fines of that term are also recorded in the rolls of the court. and his entry is in this form : he puts the shire in the margin , and then saith , a. b. dat domino regi dimidium marcam ( or more according to the value ) pro licentia concordandi cum c. d. pro talibus terris , in tali villa , & habet chirographum per pacem admissum , &c. clerk of the peace ( clericus pacis ) is an officer belonging to the sessions of the peace . his duty is , in the sessions to read the endictments , to enrol the acts , and draw the process : to record the proclamations of rates for servants wages , to enrol the discharge of apprentices , to keep the counterpart of the indenture of armor , to keep the register book of licenses , given to badgers and laders of corn , and of those that are licensed to shoot in guns , and to certifie into the kings bench transcripts of indictments , outlaries , attainders , and convictions had before the justices of the peace , within the time limitted by statute . lamberts eiren. lib. . cap. . fol. . clerk of the signet ( clericus signeti ) is an officer attendant continually on his majesties principal secretary , who always hath the custody of the privy signet , as well for sealing his majesties private letters ; as also such grants as pass his majesties hand by bill signed . of these there are four that attend in their course , and have their diet at the secretaries table . more largely you may read of their office in the statute made anno h. . cap. . clerk of the privy seal ( clericus privati sigilli ) there are four of these officers that attend the lord privy seal , or ( if none such ) the principal secretary , writing and making out all things that are sent by warrant from the signet to the privy seal , and are to be passed to the great seal ; as also to make out ( as they are termed ) privy seals upon any special occasion of his majesties affairs ; as for loan of money , and such like . of this officer and his function , you may read the statute h. . cap. . he that is now called the lord privy seal , seems in ancient time to have been called clerk of the privy seal , and to have been reckoned , notwithstanding , in the number of the great officers of the realm . read the statute rich. . cap. . clerk of the juries or jurata writs ( clericus juratorum ) is an officer belonging to the court of common pleas , who makes out the writs called ( habeas corpora ) and ( distringas ) for appearance of juries , either in court , or at the assises , after the jury or panel is returned upon the ( venire facias . ) he enters also into the rolls the awarding of these writs , and makes all the continuance from the going out of the ( habeas corpora ) until the verdict be given . clerk of the pipe ( clericus pipae ) is an officer in the exchequer , who , having all accompts and debts due to the king , delivered and drawn out of the remembrancers offices , charges them down into the great roll ; who also writes summons to the sheriff , to levy the said debts upon the goods and cattels of the debtors ; and if they have no goods , then he draws them down to the lord treasurers remembrancer , to write estreats against their lands . the ancient revenue of the crown remains in charge before him , and he sees the same answered by the farmers and sheriffs . he makes a charge to all sheriffs of their summons of the pipe and green wax , and sees it answered upon their accompts . he hath the drawing and ingrossing all leases of the kings land. in henry the sixths time , he was called ingrossator magni rotuli . clerk of the hamper or hanaper ( clericus hanaperii ) is an officer in chancery , ( anno edw. . cap. . ) otherwise called warden of the hamper , in the same statute , whose function is to receive all the money due to the king for the seals of charters , patents , commissions , and writs ; as also fees due to the officers for enrolling and examining the same , with such like . he is tied to attendance on the lord chancellor , or lord keeper daily in the term time , and at all times of sealing , having with him leather bags , wherein are put all charters , &c. after they are sealed , those bags , being sealed up with the lord chancellors private seal , are delivered to the comptroller of the hamper , who upon receipt of them , doth , as you shall read in his office. this hanaper represents a shadow of that which the romans termed ( fiscum ) which contained the emperors treasure . clerk of the pleas ( clericus placitorum ) is an officer in the exchequer , in whose office all the officers of the court ( upon especial priviledge belonging unto them ) ought to sue , or to be sued upon any action , &c. see the practice of the exchequer , pag. . and inst . fol. . clerk of the treasury ( clericus thesaurariae ) is an officer belonging to the common pleas , who hath the charge of keeping the records of the court , and makes out all the records of nisi prius , hath the fees due for all searches , and hath the certifying all records into the kings bench , when a writ of error is brought : also he makes all exemplications of records being in the treasury . he is taken to be the servant of the cheif justice , and removeable at his pleasure , whereas all other officers are for term of life . there is also a secundary , or under-clerk of the treasury for assistance , who hath some allowances . and likewise an under-keeper , who always keeps one key of the treasury door , and the cheif clerk of the secondary an other ; so as the one cannot come in , without the other . clerk of essoyns ( clericus essoniorum ) is an officer belonging to the court of common pleas , who keeps the essoyn-rolls , and hath for entring every essoyn six pence , and for every exception to bar the essoyn , in case where the party hath omitted his time , six pence . he hath also the providing of parchment , and cutting it out into rolls , and marking the numbers upon them , and the delivery out of all the rolls to every officer , and the receiving them again when they are written , and the binding and making up the whole bundles of every term ; and this he doth as servant to the chief justice . for the chief justice is at charge for the parchment of all the rolls ; for which he is allowed , as the chief justice of the kings bench , besides the penny for the seal of every writ of priviledge and utlary , the seventh penny taken for the seal of every writ under the green wax , or petit seal in the court of kings bench and common pleas respectively , the said lord chief justices having annexed to their several offices or places , the custody of the said seals belonging to each court. clerk of the outlaries ( clericus utlagariarum ) is an officer belonging to the court of common pleas , being onely the servant or deputy to the kings atturney general , for making out writs of ( capias utlagatum ) after outlary ; the kings atturnies name being to every one of those writs . and whereas seven pence is paid for the seal of every other writ , betwixt party and party , there is but a penny paid for the seal of this writ , because it goes out at the kings suit. clerk of the errors ( clericus errorum ) in the court of common pleas does transcribe and certifie into the kings bench , the tenor of the records of the cause or action ; upon which , the writ of error ( made by the cursitor ) is brought , there to be adjudged and determined : the clerk of the errors in the kings bench , does likewise transcribe and certifie the records of such causes in that court , into the exchequer , if the cause or action were by bill : if by original , the lord chief justice certifies the record into the house of peers in parliament , by taking the transcript from the clerk of the errors , and delivering it to the lord keeper , there to be determined , according to the statutes eliz. . and eliz. . the clerk of the errors in the exchequer does transcribe the records , certified thither out of the kings bench , and prepares them for judgment in the court of exchequer , to be given by the justices of the common pleas , and barons there . see car. . cap. . and eiusdem , cap. . clerk of the sewers ( clericus suerarum ) is an officer appertaining to the commissioners of sewers , writing all things that they do by vertue of their commission , for which see sewers : and see the statute of eliz. cap. . clerk comptroller of the kings house ( whereof there are two ) is an officer in the court that hath authority to allow or disallow the charges and demands of pursuivants , messengers of the green-cloth , or other like . he hath also the over-sight and controlling of all defects and miscarriages of any the inferior officers , and to sit in the counting-house with the superior officers ( viz. ) the lord steward , mr. treasurer , comptroller , and cosserer , either for correcting , or bettering things out of order . this officer is mentioned anno hen. . cap. . clerk of the nichils or nihils ( clericus nihilorum ) is an officer in the exchequer , who makes a roll of all such sums , as are nihiled by the sheriffs upon their estreats of green-wax , and delivers the same into the lord treasurers remembrancers office , to have execution done upon it for the king. see the stat. rich. . cap. . stat. . and practice of the exchequer , pag. . see nihil . clerk of the check , is an officer in the court , so called because he hath the check and controlment of the yeomen of the guard , and all other ordinary yeomen and huissiers belonging either to his majesty , the queen , or prince ; either giving leave or allowing their absences or defects in attendance , or diminishing their wages for the same . he also nigntly by himself , or deputy , takes the view of those that are to watch in the court , and hath the setting of the watch. this officer is mentioned anno hen. . cap. . also there is an officer of the same name in the kings navy , and mentioned anno car. . cap. . clerk marshal of the kings house , seems to be an officer that attends the marshal in his court , and records all his proceedings . anno hen. . cap. . closh , was an unlawful game , forbidden by the statute of edw. . cap. . and seems to have been the same with our nine pins ; elswhere called closh-cayls . anno hen. . cap. . though some think it might be the same game , which is still used by idle persons in lincolns-inn fields , and now called the wheel of fortune , wherein they turn about a thing like the hand of a clock , in fr. cloche . clove , is the two and thirtieth part of a weigh of cheese , i. eight pound . an. hen. . cap. . see waga . cocherings , an exaction or tribute in ireland . see bonaght . cocket or coket ( cokettum ) is a seal belonging to the kings custom-house . reg. of writs , fol. . a. also a scrol of parchment sealed and delivered by the officers of the custom-house to merchants , as a warrant , that their merchandises are customed . anno hen. . cap . which parchment is otherwise called literae de coketto , or literae testimoniales de coketto . reg. fol. . a. so is the word used , anno & edw. . cap. . and edw. . stat. . cap. . none shall make wools to be cocketted , but in the name of him to whom the wools be . anno rich. . cap. . coket , is also used for a distinction of bread in the statute of bread and ale , made hen. . the words are , when a quarter of wheat is sold for xii d , then wastel-bread of a farthing shall weigh vi . and xvi s ; but bread-cocket of a farthing , of the same corn and bultel , shall weigh more then wastel by ii s. and cocket-bread made of corn of lower price , shall weigh more then wastel by v s. bread made into a simnel , shall weigh ii s. less then wastel : bread made of the whole wheat , shall weigh a cocket and a half ; so that a cocket shall weigh more then a wastel by v s. bread of treet shall weigh two wastels ; and bread of common wheat shall weigh two great cockets . when a quarter of wheat is sold for xviii d. then wastel-bread of a farthing , white and well-baked , shall weigh iv l , x s. when for ii s , iii l. viii s. &c. by which , we may perceive , that wastel-bread was the finest , cocket-bread next , then bread of treet , and lastly , bread of common wheat ; as we now call the finest bread , wheaten , or french bread , the second sort white bread , the third brown , or houshold bread , &c. codicil ( codicillus ) a schedule or supplement to a will , or some other writing ; some writers , conferring a testament , and a codicil together , call a testament a great will , and a codicil a little one ; and compare a testament to a ship , and the codicil to the boat tied to the ship. codicil is used as an addition annexed to a testament , when any thing is omitted , which the testator would add , explain , alter , or retract ; and is the same with a testament , but that it is without an executor . sec swinb . pag. . sect . . and touchstone of wills , pag. , . coffée ( anno car. cap. ) a kinde of drink brought hither from the turks and persians , black , thick , and bitter , distrained from berries of that nature and name , yet thought to be good and wholesome . cofferer of the kings houshold , is a principal officer of the court , next under the comptroller , who in the counting-house , and elswhere , hath a special charge and over-sight of other officers of the houshold , for their good demeanor and carriage in their offices , and pays their wages . this officer is mentioned . anno eliz. cap. . cogs ( cogones ) seems to be a kinde of vessel or boat , upon the river of ouse , and water of humber , mentioned in the statute of hen. . cap. . also a kinde of ship ; for i finde in matth. westm . anno dom. . — venit ad hoc in angliam ( rex noricorum ) trecentis coggonibus advectus . cognatione . see cosenage . cognisor . see conisor cognitionibus mittendis , is a writ to a justice , or other that hath power to take a fine ( who having taken it , defers to certifie it into the court of common pleas ) commanding him to certifie it . reg. of writs , fol. . b. cognizance ( fr. cognisance , i. cognitio ) is used diversly ; sometimes signifying the badge of a waterman , or serving-mans sleeve , which is commonly the givers crest , whereby he is discerned to belong to this , or that noble or gentleman : sometimes an acknowledgment of a fine , or confession of a thing done ; as cognoscens latro . bract. lib. . tract . . cap. . , . and to make cognizance of taking a distress . sometimes , as an audience or hearing a matter judicially , as to take cognizance . sometimes a power or jurisdiction , as cognizance of plea , is an ability to call a cause or plea out of another court , which no man can do but the king , except he can shew charters for it . manw. par . . pag. . for such cognizance lies not in prescription . cogware , seems to be a sort of course cloaths , made in the north of england , mentioned in the stat. rich. . cap. . where there is mention also of cogmen , that is , buyyers of , makers or dealers in , such cogware . coif ( coifa , fr. coiffe ) our serjeants at law , are otherwise called serjeants of the coif ; from the lawn coif they wear on their heads , under their cap , when they are created , and always after . see serjeant . coin ( fr. coign , i. angulus , which probably verisies the opinion of such as hold the ancientest sort of coyn to be cornered , and not round ) any sort of money coyned . cromp. just . of p. fol. . coinage , besides the general signification , relating to money : it is ( says camden ) by a law provided , that all the tin in cornwal , after it is cast and wrought , shall be weighed and signed with a stamp , which is called coynage . britan. fol. . and anno hen. . cap. . some authors write it cunage . coket . see cocket . coliberts ( colliberti ) sunt tenentes in libero soccagio . m. s. or such as of villains were made freemen . collateral ( collateralis ) side-wise , or which hangs by the side , or comes in side-wards , not direct : as collateral assurance , is that which is made over and beside the deed it self ; as , if a man covenant with another , and enter bond for performance of his covenant , the bond is termed collateral assurance ; because it is external , and without the nature and essence of the covenant . and crompton ( juris . fol. . ) saith , that , to be subject to the feeding of the kings deer , is collateral to the soil within the forest . so we may say , that liberties to pitch booths , or standings for a fair in another mans ground , is collateral to the ground . the private woods of a common person , within a forest , may not be cut without the kings licence ; for it is a prerogative collateral to the soil . manwood , par . . pag. . collateral warranty . see warranty . collation of benefice ( collatio beneficii ) signifies properly the bestowing a benefice by the bishop , who hath it in his own gift or patronage , and differs from institution in this , that institution into a benefice , is performed by the bishop , at the motion or presentation of another , who is patron of it , or hath the patrons right for the time . yet collation is used for presentation , anno edw. . stat. . collatione facta uni post mortem alterius , &c. is a writ directed to the justices of the common pleas , commanding them to direct their writ to a bishop , for the admitting a clerk in the place of another presented by the king , who , during the suit between the king and the bishops clerk , is departed this life : for , judgment once passed for the kings clerk , and he dying before admittance , the king may bestow his presentation on another . reg. of writs , fol. . b. colour ( color ) signifies a probable plea , but in truth , false , and hath this end , to draw the tryal of the cause from the jury to the judges . as , in an action of trespass for taking away the plaintiffs beasts , the defendant saith , that before the plaintiff had any thing in them , he himself was posseised of them , as of his proper goods , and delivered them to a. b. to deliver them to him again , when , &c. and a. b. gave them to the plaintiff , and the plaintiff , supposing the property to be in a. b. at the time of the gift , took them , and the defendant took them from the plaintiff , whereupon the plaintiff brings his action . — this is a good color , and a good plea. see doctor and student , lib. . cap. . and broke , tit . color in assise , trespass , &c. fol. . collusion ( collusio ) is a deceitful agreement or compact between two or more , for the one party to bring an action against the other to some evil purpose , as to defraud a third person of his right , &c. see the statute of westmin . . cap. . and hen. . cap. . which gives the quale ju● and enquiry in such cases . see broke , tit . collusion , and reg. of writs , fol. . a. gifts made by collusion , see in edw. . cap. . combat ( fr. ) signifies as much as certamen , pugna ; but with us it is taken for a formal tryal between two champions , of a doubtful cause or quarrel , by the sword or bastons ; of which you may read at large in glanvile , lib. . cap. . bracton , lib. . tract . . cap. . britton , cap. . horns mirror of justices , lib. . cap. des exceptions in fine proxime & cap. juramentum duelli . dyer , fol. . num . , : when alan de la zouch had judicially sued john earl of warren , who chose rather to try the title by the sword point , than by point of law , he was wounded by him even in westminster-hall , in the year . says camden in his britan. fol. . the last trial by combat was admitted car. . between donnold lord roy , appellant , and david ramsey , esquire , defendant , scotchmen , in the painted chamber at westminster , before robert earl of lindsey , lord high constable , thomas earl of arundel , earl marshal , with other lords ; where , after the court had met several times , and bill , answer , and replication put in by the parties , and council heard with other formalities , it was at last determined , that the matter should be referred to the kings will and pleasure , whose favor enclined to ramsey . bakers chron. fol. . see coke on littl. fol. . b. origines juridiciales , fol. . and spelmans gloss . at large , verbo , campus . comitatu commisso , is a writ or commission , whereby the sheriff is authorised to take upon him the charge of the county . reg. of writs , fol. . cokes rep. lib. . fol. . a. comitatu & castro commisso , is a writ whereby the charge of a county , with the keeping of a castle is committed to the sheriff . reg. of writs , fol. . comitatus . — of dead ferms and debts desperate , whereof there is no hope , one roll shall be made , and shall be entituled , comitatus , and read every year upon the account of sheriffs . edw. . cap. unico . commandry ( praeceptoria ) was a mannor or cheif messuage , with lands and tenements appertaining thereto , belonging to the priory of st. johns of jerusalem in england ; and he , who had the goverment of any such mannor or house , was called the commander ; who could not dispose of it , but to the use of the priory , onely taking thence his own sustenance , according to his degree , who was usually a brother of the same priory . new eagle in the county of lincoln , was , and still is called the commandry of eagle , and did anciently belong to the said priory ; so were slebach in pembrokeshire , and shengay in cambridgeshire commandries , in time of the knights-templers , says camd. — these , in many places of england , are termed temples , as temple bruere in lincolnshire , temple newsum in yorkshire , &c. because they formerly belonged to the said templers . of these read anno hen. . cap. . and ejusdem , cap. . see preceptories . commandment ( praeceptum ) hath a divers use ; as the commandment of the king , when , upon his meer motion and from his own mouth , he casts any man into prison . stamf. pl. cor. fol. . commandment of the justices is either absolute or ordinary . absolute , as when , upon their own authority in their wisdom and discretion , they commit a man to prison for a punishment . ordinary is , when they commit one rather for safe-custody , then punishment . a man committed upon an ordinary commandment is replevisable . pl. cor. fol. . commandment is again used for the offence of him , that willeth another man to transgress the law , or to do any thing contrary to the law ; as murther , theft , or such like . bracton , lib. . tract . . cap. . which the civilians call mandatum . commendam ( ecclesia commendata ) is a benefice or church-living , which being void , is commended to the charge and care of some sufficient clerk , to be supplied , until it may be conveniently provided of a pastor . and , that this was the true original of this practise , you may read at large in durandus , de sacris ecclesiae ministeriis & beneficiis , lib. . cap. . he to whom the church is commended , hath the fruits and profits thereof , onely for a certain time ; and the nature of the church is not changed thereby , but is as a thing deposited in his hands in trust , who hath nothing but the custody of it , which may be revoked . when a parson is made bishop , there is a cession of his benefice by the promotion ; but if the king gives him power to retain his benefice , he shall continue parson , and is said to hold it in commendam . hob. rep. fol. . latches rep. fol. , . see ecclesia commendata , in gloss . x. scriptor . comminalty ( fr. communauté ) includes all the kings subjects . so in art. super chartas edw. . cap. . tout le commune d'engleterre , signifies all the people of england . inst . fol . commissary ( commissarius ) is a title of ecclesiastical jurisdiction , appertaining to such a one , as exerciseth spiritual jurisdiction in places of the diocess so far distant from the cheif city , as the chancellor cannot call the subjects to the bishops principal consistory , without their too great molestation . this commissary is by the canonists called commissarius or officialis foraneus . lyndwoods provin . cap. . and is ordained to this special end , that he supply the bishops jurisdiction and office in the out places of the diocess , or else in such parishes as are peculiar to the bishop , and exempted from the jurisdiction of the arch-deacon . for where either by prescription or composition , arch-deacons have jurisdiction within their arch-deaconries , as in most places they have , this commissary is but superfluous , and oft-times vexations to the people . therefore the bishop , taking prestation money of his arch-deacons yearly , pro exteriori jurisdictione , as it is ordinarily called , does by super-onerating their circuit with a commissary , not onely wrong arch-deacons , but the poorer sort of subjects much more . cowel . and see inst . fol. . commission ( commissio ) is with us , as much as delegatio with the civilians , and is taken for the warrant or letters patent , which all men ( exercising jurisdiction , either ordinary or extraordinary ) have to authorise them to hear or determine any cause or action . of these see divers in the table of the reg. of writs , and see broke , tit . commission ; yet this word is sometimes extended farther then to matters of judgment , as the commission of purveyors or takers , anno hen. . cap. . which seems to be null by the statute , for taking away purveyance . anno car. . cap. . the high commission court which was founded upon the statute eliz. cap. . is also abolished by act of parliament , car. . cap. . and that again explained by another act , car. . cap. . commission of association ( mentioned eliz. cap. . ) is a commission under the great seal , to associate two or more learned persons , with the several justices in the several circuits and counties in wales . commission of anticipation , was a commission under the great seal , to collect a subsidy before the day . anno hen . cokes rep. fol. . comission of rebellion ( commissio rebellionis ) is otherwise called a writ of rebellion , and issues , when a man ( after proclamation issued out of the chancery , and made by the sheriff , to present himself , under pain of his allegiance to the court , by a certain day ) appears not . and this commission is directed by way of command to certain persons , three , two or one of them , to apprehend or cause to be apprehended , the party , as a rebel , or contemner of the kings laws ; wheresoever they finde him within the kingdom , and bring or cause him to be brought to the court upon a day therein assigned : the form of it you have in west , tract . touching proceedings in chancery , sect. . commissioner ( commissionarius ) is he that hath commission , as letters patent , or other lawful warrant , to execute any publick office ; as commissioners of the office of licences of alienation . west . part. . symb. tit. fines , sect. . commissioners in eyr . anno edw. . cap . with many such like . committée . is he , or they to whom the consideration or ordering of any matter is referred , either by some court or consent of parties to whom it belongs . as in parliament , a bill being read , is either consented to and passed , or denied , or neither , but referred to the consideration of some certain persons , appointed by the house farther to examine it , who thereupon are called a committee . committee of the king. west . pa. . symb. tit . chancery , sect. . this word seems to be strangely used in kitchin , fol. . where the widdow of the kings tenant being dead , is called the committee of the king , that is , one committed by the ancient law of the land , to the kings care and protection . commoigne ( fr. ) a fellow-monk , that lives in the same convent . part. instit . fol. . common ( commune , i. quod ad omnes pertinet ) signifies that soil or water , whereof the use is common to this or that town or lordship ; as common of pasture , ( commune pasturae . ) bracton , lib. . cap. . & . commun of fishing , ( commune piscariae . ) idem , lib. . cap. . common of turbary , ( commune turbariae , i. of digging turves . ) idem , lib. . cap. . common of estovers , ( commune estoveriorum , ) kitchin , fol. , &c. common is divided into common in gross , common appendant , common apportenant , and common per cause de vicinage , i. by reason of neighborhood . common in gross , is a liberty to have common alone ( that is ) without any land or tement , in another mans land , to himself for life , or to him , and his heirs ; and it is commonly passed by deed of grant or specialty . old nat. br. fol. . & . common appendant , and common appurtenant , are in a manner confounded , as appears by fitz. nat. br. fol. . and are defined to be a liberty of common appurtaining to , or depending on such , or such a freehold ; which common must be taken with beasts commonable ; as horses , oxen , kine , and sheep , being accounted fittest for the ploughman ; and not of goats , geese , and hogs : but some make this difference , that common appurtenant may be severed from the land whereto it pertains , but not common appendant ; which ( according to sir edw. coke , lib. . fol. . ) had this beginning — when a lord enfeoffed another in arabic lands , to hold of him in soccage ; the feoffce , to maintain the service of his plough , had at first , by the curtesie or permission of the lord , common in the wastes of his lord , for his necessary beasts , to ear and compost his land , and that for two causes ; one , for that , as then it was taken , it was tacitly implied in the feoffment , by reason the feoffee could not till , nor compost his land without cattle , and cattle could not be sustained without pasture , and so by consequence the feoffee had , as a thing necessary and incident , common in the wastes and land of the lord. and this appears by the ancient books , temp. ed. . tit . common . and edw. . tit . common . and edw. . tit . admeasurement . and by the rehearsal of the statute of merton , cap. . the second reason was , for maintenance and advancement of tillage , which is much regarded and favored by the law. common per cause de vicinage ( i. common by reason of neighborhood ) is a liberty that the tenants of one lord in one town , have to common with the tenants of another lord in another town : those that challenge this kinde of common ( which is usually called intercommoning ) may not put their cattel into the common of the other town ; for then they are distrainable , but , turning them into their own field , if they stray into the neighbor - common , they must be suffered ; provided they do not surcharge either common . common of pasture , the civilians call jus compascendi . common bench ( bancus communis , from the sax. banc , i. a bank , or hillock , and metaphorically a bench , high seat or tribunal . ) the court of common pleas was anciently so called . anno edw. . cap. . because ( saith camden in his britan , pag. . ) communia placita inter subditos ex jure nostro , quod commune vocant , in hoc disceptantur , that is , the pleas or controversies between common persons are there tryed . and the justices of that court in legal records , are termed justiciarii de banco . coke on littl. fol. . b. see common pleas. common fine ( finis communis ) is a certain sum of money , which the resiants within the view of some leets , pay to the lord thereof , called in divers places head-silver , in others cert-money , or certum leta , and head-pence ; and was first granted to the lord towards the charge of his purchase of the court leet , whereby the resiants had now the ease , to do their suit-royal neerer home , and not be compelled to go to the sheriffs turn . as in the mannor of sheapshead in com. leic. every resiant pays d per poll to the lord , at the court held after michaelmas , which is there called common fine . there is also common fine of the county , for which see fleta , lib. . cap. . and the statute of edw. . cap. . but the clerk of the market shall take no common fine , anno rich. . cap. . for common fine , the lord cannot distrain without a prescription . godfreys case , in sir edw. cokes report . common pleas ( communia placita ) is the kings court , now constantly held in westminster hall , but in ancient time moveable , as appears by magna charta , cap. . edw. . cap. . and pupilla oculi , parte . cap. . but gwin , in the preface to his readings , saith , that until henry the third granted the great charter , there were but two courts in all , called the kings courts , viz. the exchequer and the kings bench , which was then called curia domini regis , and aula regis ; because it followed the court or king , and that upon the grant of that charter , the court of common pleas was erected and setled in one place certain , viz. westminster hall ; amd therefore after that , all the writs ran , quod sit coram justiciariis meis apud westm . whereas before the party was commanded by them to appear , coram me vel justiciariis meis , simply without addition of place , as he well observes out of glanvile and bracton , the one writing in henry the second's time , before this court was erected ; the other in the later end of henry the third's time , who erected this court. all civil causes , both real and personal , are or were in former times tryed in this court , according to the strict law of the realm ; and by fortescu , cap. . it seems to have been the onely court for real causes . the cheif justice thereof , is called the lord cheif justice of the common pleas , accompanied with three or four judges , assistants , or associats , who are created by letters patent , and , as it were , enstalled or placed on the common bench , by the lord chancellor , and lord chief justice of the court , as appears by fortescu , cap. . who expresseth all the circumstances thereof . the rest of the officers belonging to this court , are , the custos brevium , three prothonotaries , otherwise called prenotaries , chirographer , filazers . exigenters , clerk of the warrants , clerk of the juries , or jurata writs , clerk of the treasury , clerk of the kings silver , clerk of the essoyns , clerk of the outlaries , clerk of the errors . whose distinct functions read in their places . see common bench , and inst . fol. . common day in plea of land ( anno rich. . stat. . cap. . ) signifies an ordinary day in court , as octabis hillarii , quindena pasche , &c. which you may see in the statute of hen. . concerning general days in the bench. common intendment , is common understanding or meaning , according to the subject matter , not strained to an exotick sense . bar to common intendment , is an ordinary or general bar , which commonly disables the declaration of the plaintiff . of common intendment , a will shall not be supposed to be made by collusion . coke on littl. fol. . b. see intendment . commons house of parliament , is so called , because the commons of the realm , that is , the knights , citizens , and burgesses representing them , do sit there . crompt . jurisd . . common law ( communis lex ) hath three significations : first , it is taken for the laws of this realm simply , without any other law joyned to it ; as , when it is disputed , what ought of right to be determined by the common law , and what by the spiritual law , or admirals court , or the like . secondly , for the kings court , as the kings bench or common pleas , onely to shew a difference between them and the base courts , as customary courts , court barons , county courts , pipowders , and such like : as when a plea of land is removed out of ancient demesn , because the land is frank-fee , and pleadable at the common law , that is , in the kings court , and not in ancient demesn , or any other base court. thirdly , and most usually , by the common law , is understood such laws as were generally taken and holden for law , before any statute was made to alter the same . as , neither tenant for life , nor for years , were punishable by the common law for doing waste , till the statute of glouc. cap. . was made , which gives an action of waste against them . but tenant by the curtesie , and tenant in dower , were punishable for it before the said statute . see law. commorth . see comorth . commore ( br. cwmmwd , i. provincia ) in wales is half a cantred or hundred , containing fifty villages . stat. walliae , edw. . and hen. . cap. . it signifies also a great seignory , and may include one or divers mannors . coke on littl. fol. . commune . see comminalty . communi custodia , is a writ that did lie for that lord , whose tenant , holding by knights-service , died and left his eldest son under age , against a stranger that entred the land , and obtained the ward of the body . old nat. br. fol. . but this writ is become obsolete since wardships were taken away by the stat. car. . cap. . communication ( communicatio ) a talking , consultation , or conferring with . where there is onely a parley betwixt two , and no perfect agreement , that is , no such contract between them , as on which to ground an action , it is called a communication . communia placita non tenenda in scarcario , is a writ directed to the treasurer and barons of the exchequer , forbidding them to hold plea , between common persons in that court , where neither of them belong thereto . reg. of writs , fol. . b. comorth ( comortha ) from the british cymmorth , subsidium ) a contribution : subsidium à pluribus collatum . anno hen. . cap. . and hen. . cap. . prohibits the levying any such in wales , or the marches , &c. it seems this commorth was gathered at marriages , and when young priests said or sung their first masses , and sometimes for redemption of murders or felonies . companion of the garter , is one of the knights of that most noble order . anno . hen. . cap. . see garter . compositio mensurarum , is the title of an ancient ordinance for measures , not printed , and is mentioned in the statute of hen. . cap . compromise ( compromissum ) is a mutual promise of two or more parties at difference , to refer the ending of their controversies to the arbitrement , and equity of one or more arbitrators . west defines a compromise or submission to be the faculty or power of pronouncing sentence between persons at controversie , given to arbitrators by the parties mutual private consent , without publick authority . par. . symbol . tit. compromise . sect. . computation ( computatio ) is the true account and construction of time ; to the end , that neither party do wrong to the other , nor that the determination of time be so left at large , as to be taken otherways then according to the just judgment of the law. as , if indentures of demise are engrossed , bearing date may , . to have and to hold the land in s. for three years from henceforth , and the indentures are delivered the fourth day of june following : in this case , from henceforth shall be accounted from the day of the delivery , and not from the date ; and if the indenture be delivered at four of the clock in the afternoon of the said fourth day of june , the lease shall end the third day of june , in the third year . for the law , in this computation , rejects all fractions or divisions of the day , for the incertainty , which always is the mother of contention . so where the statute of enrolments , made hen. . cap. . is , that writings shall be enrolled within six moneths after the date thereof , if such writings have date , the six moneths shall be accounted from the date , and not from the delivery ; but if they want date , then it shall be accounted from the delivery . coke , lib. . fol. . if any deed be shewed to a court at westminster , it shall remain in court ( by judgment of the law , ) all the term , in which it is shewed , for all the term in law , is but as one day . coke , lib. . fol. . if a church be void , and the patron does not present within six moneths , then the bishop of the diocess may collate his chaplain , but these six moneths shall not be computed according to twenty eight days in the moneth , but according to the kalendar . see kalendar-moneth . computo ( lat. ) is a writ so called of the effect , which compels a bailiff , chamberlain , or receiver , to yield his account . old nat. br. fol. . it is founded on the statute of westm . . cap. . and it lies also for executors of executors . edw. . stat. de provis . victual . cap. . thirdly , against the guardian in soccage for waste made in the minority of the heir . marlbr . cap. . and see further in what other cases it lies , reg. of writs , fol. . fitz. nat. br. fol. . conabel ( fr. convenable , i. convenient or fitting ) — we ordain , that there be made a hache of conabyl heythe , crestyd with pikes of herne , to sore the entry of your kechyne , that no strange peopille may enter with certain clekets , advised be you , and be your steward to such persons , as you and them think honest and conable . artic. decani & capit. s. pauli priorat . s. helenae . dat. junii , . concealers ( concelatores ) are such as finde out concealed lands , that is , such lands as are privily kept from the king by common persons , having nothing to shew for their title or estate therein . anno eliz. cap. . and jac. cap. . they are so called a concelando , as mons à movendo , per antiphrasin . see part. inst . fol. . where the author calls them turbidum hominum genus . concessi ( a word much used in conveyances ) in law it creates a covenant , as dedi does a warranty . coke on littl. fol. . concord ( concordia , agreement ) is , by a peculiar signification , defined to be the very agreement between parties , who intend the levying a fine of lands one to the other , how , and in what manner the land shall pass . but in the form of it , many things are to be considered . west , pa. . symb. tit . fines and concords , sect. . whom read at large . concord is also an agreement made ( upon any trespass committed ) betwixt two or more ; and is divided into a concord executory , and a concord executed . see plowden , in reniger and fogassa's case , fol. , , & . where it appears by some opinion , that the one bindes not , as being imperfect ; the other absolute , and ties the party : yet by some other opinion in the same case , it is affirmed , that agreements executory , are perfect , and binde no less then agreements executed . concubinage ( fr. ) signifies properly the keeping a whore for ones own filthy use ; but it is used as an exception against her , who sues for dower , alleaging thereby that she was not wife lawfully married to the party , in whose lands she seeks to be endowed , but his concubine . britton , cap. . bracton , lib. . tract . . cap. . conders ( from the fr. conduire , i. to conduct ) are such as stand upon high places , near the sea-coast , at the time of herring-fishing , to make signs with boughs , &c. to the fishers , which way the shole of herrings passeth , which may better appear to such as stand upon some high cliff on the shore , by a kinde of blew colour they cause in the water , then to those that are in the ships . these are otherwise called huers , ( of the fr. huyer , i. exclamare ) and balkers , directors , and guiders , as appears by the statute jac. cap. . condition ( conditio ) is a manner , law , quality , or restriction annexed to mens acts , qualifying or suspending the same , and making them uncertain , whether they shall take effect , or no. west , pa. . symb. lib. . sect . . in a lease there may be two sorts of conditions ; condition collateral , or condition annexed to the rent . coke , lib. . penants case , fol. . collateral condition , is that which is annexed to any collateral act , as , that the lessee shall not go to paris . ibidem , fol. . condition is also divided into condition in deed or fact , and condition in law ; which otherwise may be termed condition expressed , and condition implied . perkins , tit . conditions . condition in deed , is that which is knit and annexed by express words to the feoffment , lease , or grant , either in writing , or without writing : as if i enfeoff a man in lands , reserving a rent to be paid at such a feast , upon condition , if the feoffee fail of payment at the day , then it shall be lawful for me to re-enter . condition implied , which is called a condition in law , is when a man grants to another the office of keeper of a park , steward , bailiff , or the like for life , though there be no condition at all expressed in the grant ; yet the law makes one covertly , which is , if the grantee does not justly execute all things pertaining to his office by himself , or his sufficient deputy , it shall be lawful for the grantor , to enter and discharge him of his office. see littleton , lib. . cap. . cone and key . bracton , lib. . cap. . num . . foemina in tali atate ( i. & annorum ) potest disponere domui suae & habere cone & key . colne in the saxon , signifies calculus , computus ; and key , clavis . so that a woman was then held to be of competent years , when she was able to keep the accounts and keys of the house ; and glanv . lib. . cap. . hath somewhat to the same purpose . confederacy ( confederatio ) is when two or more confederate or combine themselves to do any damage to another , or to commit any unlawful act . and though a writ of conspiracy does not lie , if the party be not indited , and in lawful manner acquitted , for so are the words of the writ ; yet false confederacy between divers persons shall be punished , though nothing be put in execution , which appears by the book of assis . placit . . where two w●●e indited of confederacy , each to maintain other , whether their matter were true or false , and though nothing were supposed to be put in practise , the parties were enjoyn'd to answer , since the thing is forbidden by law. so in the next article , in the same book , enquiry shall be made of conspirators and confederators , which binde themselves together , &c. this confederacy , punishable by law before it be executed , ought to have four incidents . first , it must be declared by some matter of prosecution , as by making of bonds or promises the one to the other : . malicious , as for unjust revenge . . it ought to be false , against an innocent . lastly , to be out of court , voluntary . terms de la ley. confirmation ( confirmatio ) is a strengthning or confirming an estate to one , who hath the possession , by a voidable title , though not at present void . as , a bishop grants his chancellorship by patent for term of the patentees life : this is no void grant , but voidable by the bishops death , except it be strengthned by the dean and chapters confirmation . see more of this in west , pa. . symb. lib. . sect . . fitz. nat. br. fol. . b. and littleton , lib. . cap. . confiscate , from the lat. confiscare , and that from fiscus , which originally signifies a hamper , pannier or basket ; but metonymically the emperors treasure , which was anciently kept in such hampers ; and though our king keeps not his treasure in such things , yet ( as the romans said ) such goods as were forfeited to the emperors treasury for any offence , were bona confiscata , so say we of those that are forfeited to our kings exchequer . and the title to have these goods , is given the king by the law , when they are not claimed by some other . as , if a man be indited for feloniously stealing the goods of another , where in truth they are the proper goods of him indited , and they are brought in court against him ; who , being asked what he saith to the said goods , disclaims them . by this disclaimer he shall lose the goods , though he be afterwards acquitted of the felony , and the king shall have them as confiscate ; but otherwise , if he had not disclaimed them . so where goods are found in the felons possession , which he disavows , and afterwards is attainted of other goods , and not of them , there the goods which he disavows , are confiscate to the king ; but had he been attainted of the same goods , they should have been said forfeited , not confiscate , notwithstanding his disavowment . see more in stamf. pl. cor. lib. . cap. . note , confiscare & forisfacere , are synonyma ; and bona confiscata , are bona forisfacta . inst . fol. . confrairie ( fr. ) a fraternity , fellowship , or society ; as the confrairie de seint george , or de les chivaliors de la bleu jartier . selden . confréeres ( fr. confreres ) brethren in a religious house ; fellows of one and the same house or society . anno hen. . cap. . congeable ( from the fr. conge , i. leave , licence , or permission ) signifies as much as lawful or lawfully done , or done with leave of permission , as , the entry of the disseisee is congeable : littleton , sect . . and par . croke , fol. . conge d'●●ccorder . ( fr. i. leave to accord or agree ) i finde it in the statute of fines , an. edw. . in these words — when the writ original is delivered in presence of the parties before justices , a pleader shall say this , sir justice conge d'accorder , and the justice shall say to him , what saith sir r. and shall name one of the parties , &c. conge d'eslire ( fr. i. leave to chuse ) signifies the kings permission royal to a dean and chapter , in time of vacation , to chuse a bishop , or to an abbey or priory of his own foundation , to chuse their abbot or prior. fitz. nat. br. fol. , . — gwin , in the preface to his readings , says , the king of england , as soveraign patron of all arch-bishopricks , bishopricks , and other eccsesiastical benefices , had of ancient time free appointment of all ecclesiastical dignities , whensoever they chanced to be void , investing them first per baculum & annulum ; and afterwards by his letters patent , and that in process of time he made the election over to others , under certain forms and conditions ; as namely , that they should , at every vacation , before they chuse , demand of the king conge d'eslire , that is , leave to proceed to election , and then after the election , to crave his royal assent , &c. and he affirms , that king john was the first that granted this , which was afterward confirmed by westm . . cap. . and again , by articuli cleri , cap. . congius , an ancient measure of six sextaries ; which is about a gallon , and a pint. — et reddat quinque congios celia & unum ydromelli , & triginta panes cum pertinentibus pulmentariis . carta edmundi regis de anno . conisance . see cognizance . conisor alias cognizor ( recognit●r . ) is used in the passing of fines for him that acknowledges the fine , and the conizee is he to whom the fine is acknowledged . anno hen. . cap. . west . pa. . symb. lib. . sect . . and parte . tit . fines , sect . . conjuration ( conjuratio ) signifies a plot or confederacy , made by some persons combining themselves together , by oath or promise , to do some publick harm . but it is more especially used for the having personal conference with the devil , or some evil spirit , to know any secret , or to effect any purpose . anno eliz. cap. . the difference between conjuration and witchcraft seems to be , because the one endeavors by prayers and invocation of gods powerful names , to compel the divol to say or do what he commands him ; the other deals rather by friendly and voluntary conference or agreement with the devil or familiar , to have her , or his desires served , in lieu of blood , or other gift offered him , ospecially of his or her soul. and both these differ from enchantments or sorc●ries ; because those are personal conferences with the divel , as is said ; and these are but medicines and ceremonial forms of words ( called commonly charms ) without apparition . cowel . consanguineo , is a writ , which see in the reg. of writs ; de avo. pro avo , & consanguineo , fol. . conservator of the truce , and safe conducts ( conservator induciarum & salvorum regis conductuum ) was an officer appointed in every sea-port , under the kings letters patent , and had forty pound for his yearly stipend at the least . his charge was to enquire of all offences done against the kings truce and safe conducts upon the main sea , out of the franchises of the cinque ports , as the admirals of custom were wont , and such other things as are declared anno hen. . cap. . touching this matter also , see the statute of hen. . cap. . conservator of the peace ( conservator vel custos pacis ) is he that hath an especial charge , by vertue of his office , to see the kings peace kept : which peace , lambert defines to be , a with-holding or abstinence from that injurious force and violence , which boisterous and unruly persons are , in their nature , prone to use towards others , were they not restrained by laws , and fear of punishment : he farther adds , that before the time of king edward the third , who first erected justices of peace , there were sundry persons , who by the commmon law , had interest in keeping the peace . of those , some had that charge , as incident to the offices they bore , and so included in the same , that they were called by the name of their office onely ; others had it simply as of it self , and were thereof named custodes pacis , wardens , or conservators of the peace . the former and later sort he again subdivides in his eyren , lib. . cap. . the corporation of the great level of the fens , does consist of one governor , six bailiffs , twenty conservators and commonalty ; as by the act of parliament , car. . cap. . appears . the chamberlain of chester , is a conservator of the peace in that county , by vertue of his office. inst . fol. . and petty constables are by the common law , conservators of the peace , &c. conservators of the priviledges of the hospitalers , and templers , &c. westm . . cap. . see inst . fol. . consideration ( consideratio ) is the material cause , the quid pro quo of any contract , without which no contract binds . this consideration is either expressed , as if a man bargain to give five pounds for a horse ; or implied , as when the law it self inforces a consideration ; as if a man come into a common inn , and there stay some time , taking meat and lodging , or either for himself and his horse , the law presumes he intends to pay for both , though there be no express contract betwixt him and his host ; and therefore , if he discharge not the house , the host may stay his horse . fulb. paral. tract . contracts , fol. . consistory ( consistorium ) signifies as much as praetorium or tribunal . it is commonly used for a council-house of ecclesiastical persons , or the place of justice in the court christian ; a session or assembly of prelates . every archbishop and bishop of every diocess , hath a consistory court held before his chancellor or commissary in his cathedral church , or other convenient place of his diocess , for ecclesiastical causes . see inst . fol. . — sciatis vos omnes & caeteri mei fideles , qui in anglia manent , quod espicopales leges , quae non bene secundum sanctorum canonum praecepta , usque ad mea tempora , in regno anglorum fuerunt , communi concilio archiepiscoporum meorum & caeterorum episcoporum & abbatum & omnium principum regni mei , emendendas judicavi . propterea mando & regia authoritate praecipuo , ut nullus episcopus vel archi-deaconus de legibus episcopalibus amplius in hundret placita teneant , nec causam , quae ad regimen animarum pertinet , ad judicium secularium hominum adducant , &c. this law , made by the conqueror , seems to give the original of the bishops consistory , as it sits with us divided from the hundred or county-court , wherewith in the saxon time it was joyned . and , in the same law of his , is further added , hoc etiam defendo , ut nullus laicus homo de legibus quae ad episcopum pertinent , se intromittat , &c. seldens hist . of tithes , pag. , . consolidation ( consolidatio ) is used for the combining and uniting two benefices in one . broke , tit . union , and anno hen. . cap. . this word is taken from the civil law , where it signifies properly an uniting of the possession , occupation , or profit , with the property . as , if a man have by legacy usum-fructam fundi , and afterwards buy the property or fee-simple ( as we call it ) of the heir ; this is called a consolidation . see union , and unity of possession . conspirators , are ( according to the statute ) those that do confeder , or ●ind themselves by oath , covenant , or other aliance , that every of them shall aid , and hear the other , falsly and maliciously to indite , or cause to indite , or falsly to move or maintain pleas : and also such as cause children within age , to appeal men of ●elony , whereby they are imprisoned and sore grieved ; and such as retain men in the countrey , with liveries or fées to maintain their malicious enterprises : and this extendeth as well to the takers , as to the givers . and stewards and bailiffs of great lords , which by their seigniory , office , or power , undertake to hear or maintain quarrels , pleas , or debates that concern other parties , then such as touch the estate of their lords , or themselves . anno edw. . stat. . — part. inst . ●ol . . and . conspiracy ( conspiratio ) though both in latin and french , it be used for an agreement of men to do any thing , either good or bad ; yet in our law-books , it is always taken in the evil part . anno . edw. . cap. . — hen. . cap. . — hen. . cap. . and hen. . cap. . as also new book of entries , verbo conspiracy . in which places , conspiracy is taken more generally , and confounded with maintenance and champerty ; but , in a more special signification , it is used for a confederacy of two , at the least , falsly to endite one , or to procure one to be endited of felony . and the punishment of it , upon an indictment of felony , at the kings suit , anciently was , that the party attainted , lose his frank-law , to the end , he be not empannel'd upon juries or assizes , or such like employments , for testifying the truth ; and if he have to do in the kings court , that he make his atturney ; and that his lands , goods , and chattels be seised into the kings hands , his lands estreaped ( if he finde no better favor ) his trees raced , and his body committed to prison . lib. assis . . cromptons just . of peace , fol. . b. this is called villanous judgment or punishment . see villanous judgment . but if the party grieved , sue upon the writ of conspiracy , then see fitz. nat. br. fol. . d. . i. conspiracy may be also in cases of less weight ; as conspiracies made by victualers , touching selling of victuals , shall be grievously punished . see hen. . . and part. inst . fol. . conspiratione , is a writ that lies against conspirators . fitz. nat. br. fol. . d. cromptons jurisd . fol. . see also the register , fol. . constable ( constabularius ) is a saxon word compounded of cuning or cyng , and staple , which signisie the stay and hold of the king. lamb. duty of constables , num . . but i have seen it derived from comes stabuli , which seems more probable ; because we had this officer , and many others from the caesarean laws , and customs of the empire , as well as from the saxons . this word is diversly used , first for the constable of england , of whose great dignity and authority , we may finde many proofs in the statutes and chronicles of this realm . his function consists in the care of the common peace of the land , in deeds of arms , and matters of war. lamb. ubisupra . with whom agrees the statute of rich. . cap. . stat. . which says , to the court of the constable . and marshal , it appertains to have conusance of contracts and deeds of arms and of war , out of the realm , and also of things that touch war within ; as combats , blasonry of arms , &c. but it may not meddle with battel in appeals , nor generally with any other thing that may be tryed by the law of the land. see fortescu , cap. . and inst . fol. . out of this high magistracy of constable of england ( says lambert ) were drawn those inferior constables , which we call constables of hundreds and franchises ; and first ordained by the statute of winchester , anno edw. . which appoints for conservation of the peace , and view of armor , two constables in every hundred and franchise , which in latin are called constabularii capitales , high constables ; because continuance of time and increase , both of people and offences , hath , under these , made others in every town called petit-constables , in latin sub-constabularios , which are of like nature , but of inferior authority to the other . the making of a petty constable belongs to the lords of divers mannors , jure feudi . of these , read smith de rep. angl. lib. . cap. . besides these there are officers of particular places , called by this name , as constable of the tower. stamf. pl. cor. fol. . anno hen. . cap. . constable of the exchequer , anno hen. . stat. . constable of dover castle , cam. britan. pag. . fitz nat. br. fol. . but these are castellani properly , as lambert notes , though confounded in name with the other . see the statute anno hen. . cap. . — manwood , par . . cap. . mentions a constable of the forest . constat ( lat. ) is the name of a kinde of certificate , which the clerk of the pipe , and auditors of the exchequer make , at the request of any person , who intends to plead or move in that court , for discharge of any thing . anno & edw. . cap. . and eliz cap. . the effect of a constat is the certifying what does constare upon record , touching the matter in question , and the auditors fee for it , is s. d. a constat is held to be superior to a certificat , because this may erre or fail in its contents , that cannot ; as certifying nothing , but what is evident upon record . also , the exemplification under the great seal of the inrolment of any letters patent is called a constat . coke on littl. fol. . b. the difference between a constat , inspeximus & vidimus , you may read at large in pages case . cokes fifth report . consuetudinibus & servitiis , is a writ of right close , which lies against the tenant that deforceth his lord of the rent or service due to him . of this see more in old nat. br. fol. . fitz. nat. br. fol. . and reg of writs , fol. . consultation ( consultatio ) is a writ whereby a cause , being formerly removed by prohibition from the ecclesiastical court or court christian , to the kings court is returned thither again . for , if the judges of the kings court , upon comparing the libel with the suggestion of the party , finde the suggestion false , or not proved ; and therefore , the cause to be wrongfully called from the court christian , then upon this consultation or deliberation , they decree it to be returned again ; whereupon the writ in this case obtained , is called a consultation . of this you may read reg. of writs , fol. , . — usque . old nat. br. fol. . fiiz . nat. br. fol. . the statute of the writ of consultation , anno edw. . and part. inst . fol. . contenement ( contenementum , as — salvo contenemento suo , mag. cha. cap. . ) signifies his countenance , credit , or reputation , which he hath , together with , and by reason of his freehold ; and in this sence does the statute of edw. . and old nat. br. use it , where countenance is used for contenement : the armor of a soldier is his countenance ; the books of a scholler , his countenance , and the like . coke , part. inst . fol. . bracton , lib. . tract . . cap. . num . . and sir henry spelman says , contenementum est ●stimatio & conditionis forma , qua quis in repub. subsistit . contingent use , is a use limited in a conveyance of land , which may , or may not happen to vest ; according to the contingency expressed in the limitation of such use . see chudleighs case , in cokes rep. continuance , is as prorogatio in the civil law. for example , continuance until the next assise . fitz. nat. br. fol. . f. and . d. in both which places it is said , if a record in the treasury be alleaged by the one party , and denied by the other , a certiorari shall be sued to the treasurer , and the chamberlain of the exchequer , who , if they certifie not in the chancery , that such a record is there , or that it is likely to be in the tower , the king shall send to the justices , repeating the certificate , and will them to continue the assise . in this signification , it is likewise used by kitchin , fol. . and . and anno hen. . cap. . and continuance of a writ or action , is from one term to another , in case where the sheriff hath not returned or executed a former writ , issued out in the said action . continual claim , is a claim made from time to time , within every year and day , to land , or other thing , which in some respect , we cannot attain without danger . as , if i be disseised of land , into which , though i have a right , i dare not enter for fear of beating , it behoves me to hold on my right of entry at my best opportunity , by approaching as neer it as i can , once every year , as long as i live , and so i save the right of entry to my heir . see more in littleton , verbo , continual claim , and the new book of entries , ibidem . and fleta , lib. . cap. . continuando , is a word used in a special declaration of trespass , when the plaintiff would recover damages for several trespasses in the same action : for , to avoid multiplicity of sutes , a man may in one action of trespass , recover damages for forty or more trespasses , laying the first to be done with a continuance to the whole time , in which the rest of the trespasses were done ; and is in this form , continuando transgressionem praedictam , &c. 〈◊〉 praedict● die , &c. usque such another day , including the last trespass . contours . see countors . contrabanded goods ( from contra , and the ital. bando , an edict or proclamation ) are those which are prohibited by act of parliament , or proclamation , to be imported into , are exported out of this , or other nations . contract ( contractus ) is a covenant or agreement between two , with a lawful consideration or cause . west , pa. . symb. lib. . sect . . as if i sell my horse for money , or covenant , in consideration of l. to make you a lease of a farm ; these are good contracts , because there is quid pro quo . usurious contract , is a contract to pay more interest for any money , then the laws and statutes of this realm allow . it is a devastavit in an executor , to pay a debt upon an usurious contract . noys reports , fol. . contrafaction ( contrafactio ) a counterfeiting . as contrafactio sigilli regis . contra formam collationi● , was a writ that ●ay against an abbot , or his successor , for him or his heir , who had given land to an abbey for certain good uses , and found a feofment made thereof by the abbot , with assent of the tenants , to the dis●●herison of the house and church . this was founded on the statute of westm . . cap. . see reg. of writs , fol. . and fitz. nat. br. fol. . contra formam feoffamenti , is a writ that lies for the heir of a tenant enseoffed of certain lands or tenements , by charter of feoffinent of a lord , to make certain services and sutes to his court , and is afterward distrained for more , then is contained in the said charter . reg. of writs , fol. . old nat. br. fol. . contributione facienda , is a writ , that lies , where more are bound to one thing , and one is put to the whole burden . fitzh . ( nat. br. fol. . ) brings these examples , if tenants in common or joynt , hold a mill pro indiviso , and equally take the profits thereof , the mill falling to decay , and one or more of them refusing to contribute towards its reparation , the rest shall have this writ to compel them . and if there be three coparceners of land , that ow sute to the lords court , and the eldest performs the whole , then may she have this writ to compel the refuser to a contribution . old nat. br. ( fol. . ) frames this writ to a case , where one onely sute is required for land , and that land being sold to divers , sute is required of them all , or some of them by distress , as intirely , as if all were still in one . see reg. of writs , fol. . controller ( fr. contrerolleur ) we have divers officers of this name ; as controller of the kings house , anno hen. . cap. . controller of the navy , eliz. cap. . controller of the custom , cromp. jurisd . fol. . controller of calis , rich. . cap. . controller of the mint , hen. . cap. . controller of the ha●per , is an officer in the chancery attending the lord chancellor daily in the term time , and upon seal days . hia office is to take all things sealed from the clerk of the hanaper , inclosed in bag● of leather , and to note the just number and effect of all things so received , and enter the same in a book , with all the duties , appertaining to his majesty , and other officers for the same , and so charges the clerk of the hanaper with it . controller of the pipe , is an officer of the exchequer , who writes out summons twice every year to the sheriffs to levy the farms , and debts of the pipe , and keeps a controlment of the pipe , and was anciently called duplex ingrossator . controller of the pell , is also an officer of the exchequer , of which sort there are two , viz. the two chamberlains clerks , that do or should keep a controlment of the pell , of receipts and goings out : this officer was originally one , who took notes of any other officers accounts or receipts , to the intent to discover him , if he dealt amiss , and was ordained for the princes better security ; for proof whereof , read fleta , lib. . cap. . and the stat. edw. . cap. . controvor ( fr. controuveur ) he that of his own head , devises or invents false bruits , or feigned news . inst . fol. . convenable ( fr. ) agreeable , suitable , convenient or fitting . anno edw. . stat. . cap. . and hen. . cap. . see covenable . conventicle ( conventiculum ) a little private assembly or meeting , for exercise of religion ; first , attributed in disgrace to the schools of wickcliff in this nation , above years since , and now applied to the illegal meetings of the non-conformists , and is mentioned in the stat. hen. . cap. . and car. . cap. . conventio , is a word much used both in ancient and modern law-pleadings , for an agreement or covenant : for example , take this pleasant record . ex libro rotulorum curiae manerii de hatfield ( juxta insulam de axholme ) in com. ebor. curia tenta apud hatfield die mercurii prox o post festum — anno xio. edw. tii . robertus de roderham qui optulit se versus johannem de ithen de eo quod non teneat conventionem inter eos factam , & unde queritur , quòd certo dio & anno apud thorne conveni● inter praedictum robertum & johannem , quod praedictus johannes vendidit praedict● roberto diabolum ligatum in quodam ligamine pro iiid. ob . & super praedictus robertus tradidit praedicto johanni quoddam obolum-earles ( i. earnest-money ) per quod proprietas dicti diaboli commoratur in persona dicti roberti ad habendam deliberationem dicti diaboli , infra quartam diem prox ' sequent . ad quam diem idem robertus venit ad praefatum johannem , & petit deliberationem dicti diaboli , s●●undum conventionem inter eos factam ; idem johannes praedictum diabolum deliberare noluit , nec adhuc vult , &c. ad grave dampnum ipsius roberti lx fol. et inde producit sectam , &c. & praedictus johannes venit , &c. et non dedicit conventionem praedictam . et quia videtur curiae quod tale placitum non jacet inter christianos , ideo partes praedicti adjournantur usque in infernum , ad audiendum judicium suum , & utraque pa●s in misericordia , &c. conventione , is a writ that lies for the breach of any covenant in writing . reg. of writs , fol. . old nat. br. fol. . fitz. ( nat. br. fol. . ) calls it a writ of covenant , who divides covenants into personal and real , making a discourse of both , as also how this writ lies for both . conventuals , are those religious men , who are united together in a convent or religious house . see frier observant . conventual church . see parish . convict ( convictus ) is he that is found guilty of an o●fence by verdict of a jury . stamf. pl. cor. fol. . yet crompton , out of judge dyers commentaries , , saith , that conviction is , either when a man is outlawed , or appears , and confesseth , or else is found guilty by the inquest . cromp. jus● . of peace , fol. . conviction and attainder are often confounded . see attaint and attainted . a convict recusant , is one that hath been legally presented , indicted and convic● for refusing to come to church to hear the common-prayer , according to the statutes . eliz. . — eliz. and jac. . and these are commonly understood to be popish recusants ; though any others , that refuse to come to church for the purpose aforesaid , may as properly be called recusants . see ju●y . convocation ( convocatio ) is the assembly of all the clergy to consult of ecclesiastical matters in time of parliament : and as there are two houses of parliament ; so are there two houses of convocation ; the one called the higher convocation house , where the archbishops and bishops sit severally by themselves , the other the lower convocation house , where all the rest of the clergy sit . anno. hen. . cap. . see prolo●utor . conusance . see cognisance . conusant ( fr. cognoissant ) knowing , understanding , apprehending . — if the son be conusant , and agrees to the fe 〈…〉 ment , &c. coke on littl. fol. . b. conusor . see cognizor . coopertura , a thicket or covert of wood. carta de foresta , cap. . ca●●●ceners ( farticip●s ) otherwise called parceners , are such as have equal portion in the inheritance of their ancestor . littleton ( lib. . ) says , paroenors are either by law , or by custom ; parcenors by law , are the issue female , which ( in default of heir-male ) ▪ come in equality to the lands of their a 〈…〉 . bracto● , lib. . cap. . parce●●rs by cust●● are those , who by custom of the country , challenge equal part in such lands , as in kent , by ●●volkind . of these you may read more at large in littl. lib. . cap. . & . and brittan , cap. . the crown of england is not subject to coparcinery . anno hen. . cap. . cope , is a custom or tribute due to the king , or lord of the soil , out of the lead-mines in the wapentake of wirksworth in com. derby ; of which , thus mr. manlove in his treatise of those liberties and customs , printed . — egress and regress to the kings high-way , the miners have ; and lot and cope they pay . the thirteenth dish of oar within their mine , to the lord for lot , they pay at measuring time . six pence a load for cope the lord demands , and that is paid to the berghmasters hands , &c. copia libelli deliberanda , is a writ that lies in case , where a man cannot get the copy of a libel at the hands of the judge ecclefiastical . reg. of writs . fol. . copihold ( tenura per copiam rotuli curiae ) is a tenure for which the tenant hath nothing to shew , but the copy of the rolls made by the steward of his lords court. for , as the steward enrols and makes remembrances of all other things done in the lords court ; so he does also of such tenants as are admitted in the court , to any parcel of land or tenement belonging to the mannor , and the transcript of this , is called the court-roll , the copy whereof the tenant keeps , as his onely evidence . coke , lib. . fol. . b. this is called a base tenure , because it holds at the will of the lord. kitchin , fol. . cap. copiholds . fitzh . ( nat. br. fol. . ) says , it was wont to be called tenure in villenage , and that copihold is but a new name ; and yet it is not simply at the will of the lord , but according to the custom of the mannor . so that if a copiholder break not the custom of the mannor , and thereby forfeit his tenure , he seems not so much to stand at the lords curtesie for his right , that he may be displaced at his pleasure . these customs are infinite , varying in one point , or other , almost in every several mannor . copiholders do upon their admittances , pay a fine to the lord of the mannor , of whom the lands are holden , which fines are in some mannors certain , in others incertain : those which are incertain , the lord rates at what fine he pleaseth ; but if it exceeds two years value , the courts of chancery , kings bench , common pleas , or exchequer , have in their several jurisdictions , power to reduce the fine unto two years value . copiholds , are a kinde of inheritance , and called in many places customary ; because the tenant dying , and the hold being void , the next of the blood , paying the customary fine , as two shillings for an acre , or such like , may not be denied his admission . secondly , some copiholders have by custom , the wood growing upon their own land , which by law they could not have . thirdly , others hold ? by the verge in ancient demesns , and though they hold by copy , yet are they in account a kinde of freeholder ; for if such a one commit felony , the king hath annum , diem & vastum , as in case of freehold ; some others hold by common tenure , called meer copihold , whose land , upon felony committed , escheats to the lord of the mannor . kitchin , fol. . cha. tenants per verge in ancient demesn . this is the land , which ( in the saxons time ) was called folkland . west , ( par. . symbol . lib. . sect . . ) says , a copiholder is he who is admitted tenant of any lands , or tenements within a mannor , which , time out of minde , by the use and custom thereof , have been demisable to such as will take the same , by copy of court-roll , according to the custom of the said mannor , &c. where you may read more on this subject , see freebench . coram non judice , — in a cause whereof they ( the judges ) have not any jurisdiction , and then it is coram non judice . part. croke , fol. . powels case . coraage ( coraagium ) is a kinde of imposition extraordinary , growing upon some unusual occasion , and it seems to be of certain measures of corn. for corus tritici , is a measure of corn. bracton , lib. . cap. . num . . who in the same chapter , num . . hath these words . — sunt etiam quaedam communes praestationes , quae servitia non dicuntur , nec de consuetudine veniunt , nisi cum necessitas intervenerit , vel cum rex venerit ; sicut sunt hidag●a , coraagia , & carvagia , & alia plura de necessitate & ex consensu communi totius regni introducta , &c. cord of wood , ought to be eight foot long , four foot broad , and four foot high , by statute . cordage ( fr. ) is a general application for stuff to make ropes , and for all kinde of ropes belonging to the rigging of a ship. mentioned car. . cap. . seamans dictionary . cordiner ( vulgarly cordwaner ) from the fr. codovannier , a shoo-maker , and is so used in divers statutes , as hen. . cap. . — ejusdem , cap. . and others . cornage ( cornagium from cornu , a horn ) was a kinde of grand serjeanty ; the service of which tenure , was to blow a horn when any invasion of the scots was perceived . and by this many men held their land northward , about the picts-wall . camd. britan. pag. . and littleton , fol. . but by stat. car. . cap. . all tenures are turned into free and common soccage . sir edward coke ( on littl. fol. . ) says , cornage is also called in old books horngeld , but quaere , for they seem to differ much . see horngeld , and inst . fol. . corner-tile . see gutter-tile . corody or corrody ( corrodium , from corrodo ) signifies a sum of money or allowance of meat , drink , and cloathing , due to the king from an abbey , or other house of religion , whereof he is founder , towards the reasonable sustenance of such a one of his servants , or vadelets , as he thinks good to bestow it on : the difference between a corody and a pension , seems to be , that a corody is allowed towards the maintenance of any of the kings servants in an abbey ; a pension is given to one of the kings chaplains for his better maintenance , till he may be provided of a benefice . of both these , read fitzh . nat. br. fol. . who sets down all the corodies and pensions certain , that any abbey , when they stood , was bound to perform to the king. corody seems to be ancient in our law ; for in westm . . cap. . it is ordained , that an assisc shall lie for a corody . it is also apparent by the stat. & hen. . cap. . that corodies belonged sometimes to bishops and noblemen from monasteries . tenure in frankalmoin was a discharge of all corodies in it self . stat. edw. . cap. . see part. inst . fol. . sciant — quod nos radulphus abbas monasterii s. johannis de haghmon & ejusdem loci conventus , ad instanciam & speciale rogatum excellentissimi & reverendissimi domini nostri thomae comitis arundeliae & surreiae , dedimus — roberto lee unum corrodium pro termino vitae suae , essendo cum abbate monasterii praedicti armigerum , cum uno garcione & duobus equis ; capiendo ibidem esculenta & poculenta sufficientia pro scipso , sicut armigeri abbatis , qui pro tempore fuerint , capiunt & percipiunt ; & pro garcione suo , sicut garciones abbatis & armigerorum suorum capiunt & percipiunt ; capiendo etiam pro equis suis foenum & praebendam — et quod idem robertus habeat vesturam armigerorum , &c. dat. hen. . mon. angl. par . fol. . a. corodio habendo , is a writ , whereby to exact a corody of an abbey , or religious . house . see reg. of writs , fol. . coronatore eligendo , is a writ , which , after the death or discharge of any coroner , is directed to the sheriff out of the chancery , to call together the freeholders of the county , for the choice of a new coroner , to certifie into chancery , both the election , and the name of the party elected , and to give him his oath . see westm . . cap. . fitzh . nat. br. fol. . and reg. of writs , fol. . coroner ( coronator a corona ) is an ancient officer of this land ( for mention is made of his office in king athelstans charter to beverley , anno . ) and is so called , because he deals wholly for the king and crown . there are four of them commonly in every county , in some fewer , and in some counties but one ; they are chosen by the freeholders of the same by the kings writ , and not made by letters patent . crompt . jurisd . fol. . this officer , by the statute of westm . . cap. . ought to be a sufficient person , that is , the most wise and discreet knight , that best would , and might attend upon such an office , yea , there is a writ in the register , nisi sit miles , fol. . b. whereby it appears . it was sufficient cause to remove a coroner chosen , if he were not a knight , and had not a hundred shillings rent of freehold . the lord cheif justice of the kings bench is the soveraign coroner of the whole realm in person , i. wheresoever he abodes , lib. assisarum , fol. . coke , lib. . case of wardens , &c. of the sadlers , fol. . b. his office especially concerns the pleas of the crown : but what anciently belonged to him , read at large in bracton , lib. . tract . . cap. , , & . britton . cap. . fleta , lib. . cap. . and horns mirror , lib. . cap. del office del coroners . but more aptly for the present times . stamf. pl. cor. lib. . cap. . there are also certain special coroners within divers liberties , as well as these ordinary officers in every county ; as the coroner of the verge , which is a certain compass about the kings court , whom cromp. in his jurisd . fol. . calls the coroner of the kings house ; of whose authority , see cokes rep. lib. . fol. . by certain charters belonging to some colledges and corporations , they are licensed to appoint their coroner within their own precincts . of this office , see also inst fol. . smith de rep. angl. lib. . cap. . and lamb. eiren. lib. . cap. . pag. . and of the coroners office in scotland , read skene , verbo , iter. corporal oath . see oath . corporation ( corporatio ) a body politick , or a body incorporate ; so called , because the persons are made into a body , and of capacity to take , and grant , &c. and this body politick or incorporate , may commence , and be established three manner of ways , viz. by prescription , by letters patent , or by act of parliament . every body politick or corporate , is either ecclesiastical , or lay : ecclesiastical , either regular , as abbots , priors , &c. or secular , as bishops , deans , arch-deacons , parsons , vicars , &c. lay , as major , commonalty , bailiffs , and burgesses , &c. also every body politick or corporate , is either elective , presentative , collative , or donative . and again , it is either sole or aggregate of many , which last is by the civilians called collegium or universitas . coke on littl. fol. . and inst . fol. . corpus christi day , ( being always on the next thursday after trinity sunday ) is a feast instituted by the church , in honor of the blessed sacrament : to which also , a college in oxford is dedicated . it is mentioned in hen. . cap. . by which statute , trinity term is appointed for ever to begin the friday next after this feast . corpus cum causa , is a writ , issuing out of the chancery , to remove both the body and record , touching the cause of any man lying in execution , upon a judgment for debt , into the kings bench , &c. there to lie till he have satisfied the judgment . fitz. nat. br. fol. . e. corrector of the staple , is an officer or clerk belonging to the staple , who writes and records the bargains of merchants there made . anno edw. . stat. . cap. . & . the romans called them mersarios . corrody . see corody . corruption of blood ( corruptio sanguinis ) is an infection growing to the state of a man ( attainted of felony or treason ) and to his issue : for , as he loseth all to the prince , or other lord of the fee , as his case is ; so his issue cannot be heirs to him , or to any other ancestor by him . and , if he were noble , or a gentleman before , he and his children are thereby ignobled and ungentiled . but , if the king pardon the offender , it will cleanse the corruption of blood in those children , which are born after the pardon , and they may inherit the land of their ancestor , purchased at the time of the pardon , or afterward ; but so cannot they , who were born before the pardon . yet note , there are divers offences made treason by act of parliament , whereof , though a man be attaint , yet his blood , by provisoes therein , is not corrupt , nor shall he forfeit any thing , but what he hath for his own life ; for which , see the several statutes of eliz. cap. , & . — eliz. cap. . — eliz. cap. . and jac. cap. . corselet ( fr. ) signifies a little body , in latin corpusculum . it is used with us for an armor to cover the whole body , or trunck of a man ( anno & phil. & ma. cap. . ) wherewith the pikemen , commonly placed in the front and flanks of the battle , are armed , for better resistance of the enemies assaults , and surer guard of the gunners , placed behinde , or within them . see barrets discourse of war. lib. . dial. . cosenage ( fr. cousinage , i. kinred , cosin-ship ) is a writ that lies , where the tresail ( that is , tritavus , the father of the besail , or great grand-father ) being seised in fee , at his death of certain lands or tenements , and dies ; a stranger enters and abates , then shall his heir have this writ of cosenage . the form whereof , see in fitz. nat. br. fol. . of this also read britton at large , cap. . cosening , is an offence , whereby any thing is done deceitfully in or out of contracts , which cannot be fitly termed by any especial name . west , pa. . symb. lit . indictments , sect. . it is called stellionatus in the civil law. corsepresent ( from the fr. corps presenté , i. the body presented ) signifies a mortuary , anno hen. . cap. . and the reason why it was thus termed , seems to be , that where a mortuary , after any mans death , became due , the body of the best or second beast , was , according to the custom , offered or presented to the priest , and carried along with the corps . in nomine patris & filii & spiritus sancti . ego brianus de brompton sen. anno domini mcclxii . in vigilia apostorum simonis & judae condo testamentum meum . volo corpus meum sepeliri in prioratu majoris malverniae inter praedecessores meos , & cum corpore meo palefridum meum , cum hernesio & equum summarium , cum lecto meo , &c. in codice m. s. penes gul. dugdale , arm. cot , is a kinde of refuse wool ; so clung or clotted together , that it cannot be pulled a sunder . anno rich. . stat. . cap. . where it is provided , that neither denizen , nor foreiner , make any other refuse of wools , but cot , gare , and villein . cot or cote , signifies also as much as cotage in many places , and was so used by the saxons , according to verstegan . cotland alias cotsetbland . lib. rames . sect. . — dedit praedictus abbas praedicto hugoni pro tota terra quae tunc temporis a s. benedicto idem hugo tenebat , unam cothsethlandam cum libero servitio in villa quae dicitur slepe & unum maignagium in foro ejusdem villa — cothsethlandam hic intelligo cotae sedem & praedii quidpiam ad eandem pertinens . spelman . — de una cothlanda terrae in wathford . pat. edw : . par . . m. . cotage ( cotagium & chota , from the sax. cote ) is a house without land belonging to it . anno edw. . stat. . and the inhabitants of such cotages , are called cotagers . but by a later statute of eliz. cap. . no man may build a house , but he must lay four acres of land to it ; so that a cotage is properly any little house newly built , that hath not four acres of land belonging to it . — dedit chotam , & quendam campum junctum huic chotae . mon. angl. par . fol. . b. cottarius , a cotager . coucher , signifies a factor , that continues in some place or countrey for traffick ; as formerly in gascoign , for buying wines . anno edw. . cap. . it is also used for the general book , in which , any religious house or corporation register their particular acts. anno & edw. . cap. . covenable ( fr. convenable ) fit , convenient , or suitable . — that every of the same thrée sorts of fish , be good and covenable , as in old time hath béen used . edw. . stat. . cap. . plowden , fol. . a. covenant ( conventio ) is the consent or agreement of two or more in one thing , to do or perform somewhat . west , par . . symb. lib. . sect. . it seems to be as much as pactum or conventum , with the civilians . covenant is either in law , or in fact. coke , lib. . nokes case , fol. . or covenant express , and covenant in law. idem , lib. . fol. . covenant in law , is that which the law intends to be made , though it be not expressed in words : as if the lessor demise and grant b. acre to the lessee for a certain term , the law intends a covenant on the lessors part , that the lessee shall , during the term , quietly enjoy his lease against all lawful incumbrance . covenant in fact , is that which is expresly agreed between the parties . there is also a covenant meerly personal , and a covenant real . fitz. nat. br. fol. . who seems to say , a covenant real is that , whereby a man ties himself to pass a thing real , as land or tenements ; or to levy a fine of land , &c. covenant meerly personal is , where a man covenants with another by deed , to build him a house , or any other thing , or to serve him , &c. see conventio . covenant is also the name of a writ , for which see conventione , and new book of entries , verbo covenant . noverint omnes praesentes scriptum cyrographatum visur . vel auditur . quod xviii die april . temporis gratiae mcclx , ita convenit inter nos hugonem de okelesthorp & adam silium ade de thowes , generum ejusdem hugonis , sc . quod ego adam non dabo , impignorabo , vendam , nec alienabo aliquam partem tenementi mei de quo fui vestitus & saisitus praedicto die , nec tenementi mihi contingentis nomine baereditatis , sine voluntate & assensu praedicti hugonis vel haeredum suorum , et quod amabiliter tractabo uxorem meam , filiam praedicti hugonis ; et nisi fecero , ibo per septem dies sabati nudus per medium forum de harewode quando plenius fucrit , secundum or dinationem dicti hugonis . omnia autem praescripta fideliter & sine fraude observanda pro me & haeredibus meis , tactis sacrosanctis , juravi & affidavi ; et ne istud alicui hominum vertatur in dubium , nos praedicti hugo & adam sigilla nostra partium hiis mutuis scriptis apposuimus . hiis testibus , stephano sperry , tunc cyrographar . civitatis ebor. daniele de tottie clerico , ricardo de waleys de acculum , ade de northfolch , thomâ edwyn allutario de ebor. & aliis . ex m. s. penes gul. dugdale , ar. covenant ( foedus ) the late solemn league and covenant , first hatch'd in scotland , was a seditious conspiracy , too well known to need any explication ; it was voted illegal and irreligious by parliament in may , . and provision is made against it by the statute car. . cap. . where it is declared to have been imposed on the subjects of this realm , against the known laws and liberties of the same . covent or convent ( conventus ) signifies the society or fraternity of an abby or priory ; as societas does the number of fellows in a college . bracton , lib. . cap. . coverture ( fr. ) any thing that covers , as apparel , a coverlet ; but it is particularly applied to the state and condition of a married woman , who by our law is sub potestate viri , and therefore disabled to contract with any , to the prejudice of her self or husband , without his consent and privity , or , at least , without his allowance and confirmation . broke , hoc titulo . omnia quae sunt uxoris , sunt ipsius viri . vir est caput mulieris . sine viro respondere non potest . bracton , lib. . cap. . & lib. . cap. . and if the husband alien the wifes land , during the coverture , she cannot gainsay it , during his life . see cui ante divortium , and cui in vita . covine ( covina ) is a deceitful compact or agreement between two or more , to prejudice a third person . as if tenant for life conspires with another , that this other shall recover the land which the tenant holds , in prejudice of him in reversion . plow . com. fol. . count ( fr. conte ) signifies the original declaration in a real action ; as declaration is , in a personal . fitz. nat. br. fol. . libellus with the civilians comprehends both . yet count and declaration are sometimes confounded , as count in debt . kitchin , fol. . count or declaration in appeal . pl. cor. fol. . count in trespass . britton , cap. . see declaration . countée ( fr. comte . a comitando , because they accompany the king ) was , next to the duke , the most eminent dignity of a subject , before , as well as since , the conquest ; and those , who in ancient time , were created countees , were men of great estate and dignity : for which cause , the law gives them great priviledges ; as , their persons may not be arrested for debt , trespass , &c. ( because the law intends , that they assist the king with their council for the publick good , and preserve the realm by their prowess and valor ; ) they may not be put upon juries . if issue be taken , whether the plaintiff or defendant be a countee , or not , this shall not be tried by the countrey , but by the kings writ . also the defendant shall not have a day of grace against a lord of the parliament , because it is intended he attends the publick . and of old the countee was praefectus , or praepositus comitatus , and had the charge and custody of the county , whose authority the sheriff now hath . coke , lib. . fol. . and is therefore called viscount . see earl. countenance , seems to be used for credit or estimation . old nat. br. fol. . and likewise anno edw. . stat. . cap. . in these words , sheriffs shall charge the kings debtors with as much as they may levy with their oaths without abating the debtors countenance . see contenement . counter ( from the lat. computare ) is the name of two prisons in london , the poultry counter , and woodstreet counter ; whereinto if any enter , he is like to account ere he get thence . counter-mand , is where a thing formerly executed , is afterward , by some act or ceremony , made void , by the party that first did it . as , if a man makes his last will , and devises his land to i. s. and afterward enfeoffs another of the same land , here this feoffment is a countermand to the will , and the will void , as to the disposition of the land. counter-plée , signifies a replication to ayde prier ; for , when tenant by curtesie in dower , or other real . action , prays the view or aid of the king , or him in the reversion , for his better defence ; or else , if a stranger to the action begun , desires to be received , to say what he can for the safegard of his estate , that which the demandant alleageth against this request , why it should not be admitted , is called a counter-plee . in which sence it is used , edw. . stat. . cap. . counter-rols , — that sheriffs shall have counter-rols with the coroners , as well of appeals , as of enquests , &c. anno edw. . cap. . countors ( fr. contours ) have been taken for such serjeants at law , as a man retains to defend his cause , or speak for him in any court for their fee. horns mirror , lib. . cap. des loyers . and of whom thus chaucer , — a sheriff had he béen , and a contour , was no where such a worthy uavasour . they were anciently called serjeant-countors-coke on littl. fol. . a. county ( comitatus ) signifies the same with shire ; the one coming from the french , the other from the saxons , both containing a circuit or portion of the realm , into which the whole land is divided , for the better government of it , and more easie administration of justice : so that there is no part of this nation that lies not within some county , and every county is governed by a yearly officer , whom we call a sheriff . fortescu , cap. . of these counties , there are four of special mark , which therefore are termed counties palatines , as lancaster , chester , durham , and ely. anno eliz. cap. . we may read also of the county palatine of pembroke , and of hexam , anno hen. . cap. . ( which last , did belong to the archbishop of york . ) — this act , nor any thing therein contained , shall not extend to the county palatine of hexam , within the county of northumberland , ne to the county palatine of ely , within the county of cambridge , &c. but by the stat. eliz . cap. . this county palatine of hexham was stript of its priviledge , and reduced to be a part of the county of northumberland . the cheif governors of these counties palatines , by special charter from the king , did heretofore send out all writs in their own names , and did all things touching justice , as absolutely as the prince himself in other counties , onely acknowledging him their superior and soveraign . but by the statute hen. . cap. . this power is much abridged , to which i refer the reader ; as also to cromp. jurisd . fol. . and instit . fol. , & . besides these counties of both sorts , there are likewise unto some cities , some territory , or lands , or jurisdiction annexed , as the county of middlesex , by king henry the first , to the city of london . the county of the city of york , anno hen. . cap. . chester , anno eliz. cap. . canterbury , lamb. eiren. lib. . cap. . norwich , worcester , coventry , exeter , &c. the county of the town of kingston upon hull , hen. . cap. . newcastle upon tine , &c. the county of the town of haverford west , hen. . cap. . county is , in another signification , used for the county court , which the sheriff keeps every moneth , either by himself or his deputy . anno edw. . cap. . cromp. jur. fol. . bracton , lib. . cap. . and lib. . tract . . cap. . the word comitatus , is also used for a jurisdiction or territory , among the feudists . county court ( curia comitatus ) is by lambert otherwise called conventus , and divided into two sorts ; one retaining the general name , as , the county court held every moneth by the sheriff , or his deputy the under-sheriff . the other called the turn , held twice every year ; of both which , you may read in cromp. jurisd . fol. . this county court had , in ancient times , the cognition of great matters , as may appear by glanvile , lib. . cap. , , . by bracton , and britton in divers places , and by fleta , lib. . cap. . but was abridged by magna charta , cap. . and much by edw. . cap. unico . it had also , and hath the determination of certain trespasses and debts under forty shillings . britton , cap. . & . counting-house of the kings houshold ( domus computus hospitii regis ) commonly called the green-cloth , in respect of the green-cloth on the table ; where sit the lord steward , the treasurer of the kings house , the comptroller , master of the houshold , cofferer , and two clerks comptrollers ; for daily taking the accompts of all expences of the houshold , making provisions , and ordering payment for the same ; for the good government of the kings houshold servants , and for paying the wages of those below stairs . vide eliz. cap. . and inst . fol. . courratier ( fr. ) a horse-courser . inst . fol. . coursitour . see cursiter . court ( curia ) signifies the kings palace , or mansion ; and more especially the place where justice is judicially administred , of which , you may finde thirty two several sorts in cromptons jurisdictions well described ; whereof most are courts of record , some not , and therefore are accounted base courts , in comparison of the rest . besides these , there are also courts christian . smith de rep. angl. lib. . cap. . which are so called , because they handle matters especially appertaining to christianity , and such as , without good knowledge in divinity , cannot be well judged of , being held heretofore by archbishops and bishops , as from the pope , because he challenged the superiority in all causes spiritual , but since his ejection , they hold them by the kings authority , virtute magistratus sui , as the admiral of england doth his court : whereupon they send out their precepts , in their own names , and not in the kings , as the justices of the kings courts do . and therefore , as the appeal from these courts did lie to rome , now by the stat. hen. . cap. . it lies to the king in his chancery . court baron ( curia baronis ) is a court , which every lord of a mannor ( who in ancient times were called barons ) hath within his own precincts . barons in other nations , have great territories and jurisdiction from their soveraigns . but here in england , what they are , and have been heretofore , see in baron . of this court , and court leet , read kitchin. sir edward coke , lib. . among his copihold cases , fol. . b. says , that this court is twofold after a sort ; and therefore , if a man , having a mannor , grant the inheritance of the copiholders to another , the grantee may keep a court for the customary tenants , and accept surrenders to the use of others , and make both admittances and grants ; the other court is of freeholders , which is properly called the court baron , wherein the suters , that is , the freeholders are judges ; whereas of the other , the lord or his steward , is judge . court of py-powders . see py-powders . court of requests ( curia requisitionum ) was a court of equity , of the same nature with the chancery , but inferior to it ; principally instituted for the relief of such petitioners , as in conscionable cases , addressed themselves by supplication to his majesty . of this court , the lord privy seal was chief judge , assisted by the masters of requests , and had beginning about hen. . according to sir julius caesars tractate on this subject . mich. & eliz. in the court of common pleas , it was adjudged upon solemn argument , that this court of requests , or the whitehal , was no court that had power of judicature , &c. see part. inst . fol. . court of the legat , was a court obtained by cardinal woolsey , of pope leo the tenth , in the ninth year of henry the eighth , wherein he had power to prove wills , and dispence with offences against the spiritual laws , &c. and was but of short continuance . court christian ( curia christianitatis ) so called , because , as in the secular courts , the kings laws do sway , and decide causes ; so in ecclesiastical courts , the laws of christ should rule and direct ; for which cause , the judges in those courts are divines , as , archbishops , bishops , arch-deacons , &c. linwoods words are these . in curia christianitatis , i. ecclesiae , in qua servantur leges christi , cum tamen in foro regio serventur leges mundi . part. inst . fol. . see before in court. court of delegates . see delegates . court of chivalry ( curia militaris ) otherwise called the marshal court ; the judges , of it , are the lord constable of england , and the earl marshal of england : this court is the fountain of the marshal law , and the earl marshal , is both one of the judges , and to see execution done . see constable , and part. instit . fol. . jehan , filz , frere , & uncle au roys , duc de bedford , & d'anjou , conte richemond & de kendal , & conestable d'angleterre , a nostre treschere cousin jehan due de norfolk , mareshal d'angleterre salus . nous vous mandons & chargeons qui vous facez arrestre & venir devant nous ou nostre lieutenant a westminster a la quinsiesm du saint hillaire prochain venant william clopton du counte de suffolke esquier , pour adunques respondre devant nous ou nostre lieutenant , en la cour de chivalrie , a robert eland esquier de counte de norfolk de ce que le dit robert adunques luy sur mettra par voie de armes , ad & appose le seel de ces armes a un faux & forge fait , as domages du dit robert de cl. & plus a ce quil dit remandantz par d'evers nous a dit jour , ove icest nostre mandement , tout ce que vous en aurez faitz . donne soubz le seel du nostre office le xxiii . jour de nov. l'an du regne nostre signieur le roy sisme puis le conquest cetisme . courtilage . see curtilage . couthutlaugh ( sax. couch , sciens , & utlaugh exlex ) , is he that willingly receives a man out-lawed , and cherishes or conceals him . in which case , he was , in ancient time , subject to the same punishment that the outlaw himself was . bracton , lib. . tract . . cap. . num . . cranage ( cranagium ) is a liberty to use a crane for drawing up wares from the vessels , at any creek of the sea , or wharff , unto the land , and to make profit of it . it signifies also the money paid and taken for the same . new book of entries , fol. . crastino sancti uincentii ( i. the morrow after the feast of st. vincent the martyr , which is januarii ) is the date of the statutes made at merton , anno hen. . cravent or craven . in a tryal by battel , upon a writ of right , the ancient law was , that the victory should be proclaimed , and the vanquished acknowledge his fault , in the audience of the people , or pronounce the horrid word cravant , in the name of recreantise , &c. and presently judgment was to be given , and after this , the recreant should amittere liberam legem , that is , he should become infamous , &c. see part. instit . fol. , . we retain the word still for a coward . if the appellant joyn battel , and cry craven , he shall lose liberain legem ; but if the appellee cry craven , he shall be hanged inst . fol. . crayer . seems to be a kinde of small sea-vessel or ship , mentioned in the stat. car. . cap. . creansor ( creditor , of the fr. coyance , persuasio ) signifies him that trusts another with any debt , be it in money or wares . old nat. br. fol. . anno ● edw. . cap. . creast-tile . see roof-tile . créek ( creca ) seems to be a part of a haven , where any thing is landed from the sea. so that when you are out of the main sea within the haven , look how many landing places you have , so many creeks may be said to belong to that haven . see cromp. jurisd . fol. . a. this word is mentioned in the stat. hen. . cap. . eliz. cap. . and car. . cap. . and in plow . casu , ronyger & fogassa . crocards , a sort of money . see pollards . croft ( sax ) croftus & crofta , a little close or pitle , enclosed near a dwelling house , for any particular use . possunt etiam dicti monachi de ersdem mariscis versus occidentem jacentibus , pro se & hominibus , sive tenentibus suis , includere crof●os , sive pratum juxia pontem separalitèr quantum illis placuerit . ingulf . in some ancient deeds crufta occurs , as the latin word for a croft ; but cum toftis & croftis , is most frequent . crosses ( cruce signati ) are used by britton ( cap. . ) for pilgrims , because they wear the sign of the cross upon their garments . of these , and their priviledges , read bracton , lib. . p● . . cap. . and pa. . cap. . and the grand customary of normandy , cap. . under this word , are also signified the knights of s. john of jerusalem , created for the de●ence of pilgrims ; and all those worthy men of the nobility and gentry of england , who in the reigns of king henry the second , richard the first , henry the third , and edward the first , were cruce signati , as dedicating and listing themselves to the wars , for the recovery of jerusalem , and the holy land. greg. syntag. lib. ● . cap. & . euekingstool or cokestool ( tumbrella ) is an engin invented for the punishment of scolds and unquiet women , by ducking them in the water , called in ancient time a tumbrel . lamb. eiren. lib. . cap. . bracton writes this word tymborella . kitchin , ( cap. charge in court leet , fol. . a. ) says , every one having view of frank-pledge , ought to have a pillory , and a tumbrel . this was in use even in our saxons time , by whom it was called s●eal 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , and described to be cathedra , in qua rixosae mulieres sedentes , aquis demergebantur : and was a punishment anciently inflicted upon brewers and bakers transgressing the laws , who were thereupon , in such a stool or chair , to be ducked and immerged in stercore , some muddy or stinking pond . cudutlaugh . see couthutlaugh . cut antè divortium , is a writ , which a woman , divorced from her husband , hath to recover lands or tenements from him , to whom her husband did alienate them during the marriage , because , during the marrige , she could not gainsay it . reg. of writs , fol. . fit● . nat. br. fol. . cui in vita , is a writ of entry , which a widow hath against him , to whom her husband alienated her lands or tenements in his life time , which must specifie , that during his life , she could not withstand it . reg. of writs , fol. . fitz. nat. br. fol. . see the new book of entries , verbo , cui in vita . culagium , is when a ship is laid in the dock to be repaired . m. s. arth. trevor , arm. de plac. edw. . culvertage , ( culvertaginm , from culum & vertere , to turn tail . ) omnes cum equis & armis jussit sub nomine culvertagii convenire . matth. paris , fol. . that is , under the penalty of cowardise , or being accounted cowards . see gloss . in x. scriptores . cunage ( cunagium — de ) cunagio stanneriae , & de emptione totius stanni in com. devon . & cornub. rot. pat. edw. . see coinage . cuneus , a mint or place to coyn money in . mandatum est reginaldo de cornhil , &c. sciatis quod concessimus venerabili patri nostro cicestr . fpiscopo , quod habeat cuneum suum in civitate cicestriae , & quod currat donec nostri in eadem civitate currant , & tunc una cum illis currat . et ideo vobis praecipimus , quod ei , vel certo nuncio suo cuneum illum habere sine dilatione faciatis . 〈◊〉 . apr. claus . joh. m. . cuntey-cuntey , is a kinde of tryal , as appears by bracton , in these words , negotium in hoc casu terminabitur per cuntey-cuntey , sicut inter cohaeredes . — and , in brevi de recto negotium terminabitur per cuntey-cuntey , which seems to be as much as the ordinary jury . bracton , lib. . tract . . cap. . curfeu ( ignitegium ) of the fr. couvrir feu , i. cover the fire ) signifies an evening peal , by which the conqueror commanded every man to take warning , for raking up his fire , and putting out his light : so that in many places at this day , where a bell is customably rung towards bed-time , it is said to ring curfeu . hil. rich. . coram rege , rot. . london . curia . see court. curia advisare vult , is a deliberation which the court sometimes takes , before they give judgment in a cause , wherein there seems to be any point of difficulty ; for which , see the new book of entries on this word . curia claudenda , is a writ that lies against him , who should fence and enclose his ground , if he refuse or defer to do it . reg. of writs , fol. . fitz. nat. br. fol. . new book of entries , verbo curia claudenda . curia penticiarum . id est , curia in civitate cestriae coram vice-comite ibidem in aula penticia ejusdem civitatis . pl. in itin. apud cestriam , hen. . it is probable this court was originally held under a pentice , or shed covered with bords , and thence took denomination . curnock , is four bushels , or half a quarter of corn. fleta , lib. . cap. . cursitors ( clerici de cursu ) of these there are in the chancery twenty , who make out original writs , and are a corporation of themselves , and to every clerk are appointed certain counties . inst . fol. . curtesie of england , ( jus curialitatis angliae ) is where a man takes a wife , seised of land in fee-simple , fee-tail general , or as heir in tail special , and hath issue by her , male or female , born alive ; if the wife die , the husband shall hold the land , during his life , by the law of england , and he is called tenant by the curtesie of england ; because this priviledge is not allowed in any other realm , except in scotland , where it is called curialitas scotiae . see more upon this word in the terms of the law. curteyn ( curtana ) was the name of king edward the confessors sword , which is the first sword that is carried before the kings of england , at their coronation . matth. paris in hen. . and it is said , the point of it is broken , which may argue an emblem of mercy . curtilage ( curtilagium ) hortus olitorius , vel ubi olera leguntur . a gardin ; yard , backside , or ( as they call it in herefordshire ) a fold . persoluat ( decimam ) lactis , hortorum , curtilagiorum , lanae , &c. provinciale angl. lib. . tit . de decimis . — et si in curtilagio alicujus bladum seminaretur , decimam garbam illius bladi , sicut in campis percipiet . inq. hen. . mihi dici videtur curtilagium ( says spelman ) à curtillum & ago , scil . locus ubi curtis vel curtilli negotium agitur . it is mentioned anno edw. . cap. unico . anno hen. . cap . and eliz . cap. . see coke , vol. . fol . a. and bulstrodes rep. par . fol. . custode admittendo , & custode amovendo , are writs for the admitting or removing of guardians . reg. of writs , in indice . custodes libertatis angliae authoritate parliamenti , was the stile or title in which writs , and other judicial proceedings did run , in the rump time , that is , from the decollation of king charles the first , till the vsurper oliver was declared protector , &c. mentioned in the statute of car. . cap. . custom ( consuetudo ) hath the same signification with us , as with the civilians , being by both accounted a part of the law. consuctudo quandoque pro lege servatur ( saith bracton ) in partibus uhi fuerit more utentium approbata ; longavi enim temporis usus & consuetudinis non est vilis authoritas . lib. . cap. . custom is a law or right not written , which being established by long use , and the consent of our ancestors , and those of our kinred , that are ultra tritavum , hath been and daily is practised . so that allowing the father to be so much older then his son , as pubertas , or the years of generation require , the grand-father so much elder then him , and so forth usque ad tritavum , we cannot say this or that is a custom , except we can justifie , it hath continued so one hundred years : for tritavus must be so much elder then the party that pleads it ; yet , because that is hard to prove , it is enough for the proof of a custom , if two or more witnesses can depose they heard their fathers say , it was a custom all their time , and that their fathers heard their fathers also say , it was so in their time . if it be to be proved by record , the continuance of one hundred years will suffice . sir jo. davies rep. in praef. & fol. . custom is either general or particular : general is that which is currant through england , whereof you shall read divers in doctor and student , lib. . cap. . particular , is that which belongs to this or that lordship , city , or town . custom differs from prescription , that being common to more ; prescription , for the most part , particular to this or that man. again , prescription may be for a far shorter time , than custom , viz. for five years or less . out of our statute you may have greater diversity , which see collected in cowels institutes , tit . de usucap . & longi temp . praescript . custom is also used for the tribute or toll ( called tonnage and poundage ) which merchants pay to the king for carrying out , and bringing in merchandise . anno edw. . stat. . cap. . and car. . cap. . in which signification it is latined , custuma . reg. of writs , fol. . a. and inst . fol. . and lastly , for such services , as tenants of a mannor ow to their lord. custom-house , is a house in london , where the kings customs are received , and the whole business , relating thereunto , transacted . anno car. . cap. . customary tenants ( tenentes per consuctudinem ) are such tenants as hold by the custom of the mannor , as their special evidence . see copihold . custos brevium , is an officer belonging to the court of common pleas , and made by the kings letters patent , whose office is to receive and keep all the writs retornable in that court , and put them upon files , every return by it self , and to receive of the protonotaries all the records of nisi prius , called the postea's . for they are first brought in by the clerks of the assise of every circuit to the protonotary , who entered the issue in that matter , to enter the judgment . and four days after the return thereof , ( which is allowed to speak in arrest of judgment ) the protonotary enters the verdict and judgment , thereupon into the rolls of the court , and afterwards delivers them over to the custos brevium , who binds them into a bundle , and makes entry also of the writs of covenant , and the concord upon every fine ; and maketh forth exemplifications and copies of all writs and records in his office , and of all fines lovied . the fines after they are engrossed are thus divided between the custos brevium , and the chirographer ; this always keeps the writ of covenant , and the note ; the other keeps the concord , and the foot of the fine , upon which foot , the chirographer causeth the proclamations to be endorsed , when they are proclaimed . in the court of kings bench there is likewise a custos brevium & rotulorum , who fileth such writs as are there used to be filed , and all warrants of attorney , and transcribeth or maketh out the records of nisi prius , &c. custos placitorum coronae ( bracton , lib. . cap. . ) seems to be all one with him , whom we now call custos rotulorum . ) of which , i finde mention in the writ de odio & atia . reg. of writs , fol. . b. custos rotulorum , is he , who hath the custody of the rolls or records of the sessions of peace , and of the commission of the peace it self . he is always a justice of peace and quorum , in the county , where he hath his office ; and by his office , he is rather termed an officer or minister , then a judge ; because the commission of the peace , by express words , lays this special charge upon him , quod ad dies & loca praedicta , brevia , praecepta , processus & indictamenta praedicta coram te & dictis sociis tuis venire facias . lamb. eiren. lib. . cap. . pag. . where you may read more touching this office. who shall appoint the custos rotulorum in every county . see hen. . cap. . and & edw. . cap. . inst . fol. . custos of the spiritualties ( oustos spiritualitatis vel spiritualium ) is he that exerciseth the spiritual or ecclesiastical jurisdiction of any diocess , during the vacancy of the sea ; the appointment of whom , by the canon law , appertains to the dean and chapter . but with us in england , to the archbishop of the province by prescription . howbeit , divers deans and chapters ( if gwin say true in his preface to his readings ) challenge this by ancient charters from the kings of this land. cutter of the talleys , is an officer in the exchequer , that provides wood for the talleys , and cuts the sum paid upon them , and then casts the same into the court , to be written upon . cyricsceat ( sax. ) vectigal ecclesiae . primitias seminum quisque ex eo dato domicilio ; in quo ipso natali die domini commoratur . spelm. de concil . vol. . fol. . see churchesset . d. dakir . according to the stat. . hen. . de compositione ponderum & mensurarum , a last of hides consists of twenty dakirs , and every dakir of ten hides . but by jac. cap. . or last of hides or skins is twelve dozen . i have also read of a dakir of iron , but finde not its quantity . damage ( lat. damnatio , fr. dommage ) signifies generally any hurt or hindrance , that a man receives in his estate , but particularly , a part of that the jurors are to enquire of , when the action ( be it real or personal ) passeth for the plaintiff . for , after verdict given of the principal cause , they are asked their consciences touching costs ( which are the charges of sute , called by the civilians expensae litis ) and damages , which comprehend a recompence for what the plaintiff or demandant hath suffered , by means of the wrong done him by the the defendant or tenant . coke on littl. fol. . damage cléer ( damna clericorum ) is now assessed by the tenth part in the common pleas , and the twentieth part in the kings bench and exchequer of all damages , ( exceeding five marks ) recovered either by verdict , confession , or judgment of the court , in all actions upon the case , covenant , trespass , battery , false imprisonment , dower , and all others , wherein the damages are incertain , which the plaintiff must pay to the prothonotary or chief officer of that court , wherein they are recovered , before he shall have any execution for them . for example , if one lends another on his word , or note under hand , one hundred pound , or sells commodity to that value ; the lender or seller is forced to sue in an action of the case , recovers , must pay ten pound , if in the common pleas , and five pound in the kings bench or exchequer , ( and so proportionably for a greater or lesser sum ) before he can have execution . this was originally no other then a gratuity given the prothonotaries , and their clerks , for drawing special writs and pleadings , which afterwards grew to a certainty , and was not , as some have fancied , anciently , a tenth part of the damages recovered ; for it doth appear by ancient records , that it hath been at an incertain rate , sometimes a sixth , and at other times a third part . this , by act of parliament , car. . cap. . is taken away from and after the of september , . and till that time , and no longer , damage cleer shall be paid out of such moneys onely , as shall be actually levied , or otherwise paid by the defendants , and onely for the proportion of the money which shall be so levied or paid , and no more , or otherwise . damage fesant ( fr. dammage faisant , i. doing hurt or damage ) as when a strangers beasts are doing hurt , or spoil in the grass , corn , woods , &c. of another man , without his leave or licence . in which case , the party , whom they damage , may therefore take , distrain , and impound them , as well in the night as day . but in other cases , as for rent , services , and such like , none may distrain in the night . stat. de districtione scaccarii , anno hen. . danegelt , danegold , or dane-geld ( gelt in dutch signifies money ) was a tribute laid upon our ancestors of two shillings for every hide of land , through the realm by the danes , who once mastered us , in regard ( as they pretended ) of clearing the seas of pyrats , which greatly annoyed our coasts in those days . camd. britan. . stow in his annals , fol. . says , this tribute came to l. per annum , and began in the time of king etheldred , who , being much distressed by the continual invasion of the danes , to procure his peace , was compelled to charge his people with heavy payments . for first he gave them at five several payments l. and afterwards l. yearly , which was released by edward the confessor , according to ingulphus , fol. . a. others say it continued till hen. . or k. stephen . see hoveden par . post . annal. fol. . a. spelmans glossarium , and seldens marc clausum , fol. . — et sint quieti de lene , danegeld & gaywitte , & de omnibus aliis consuetudinibus , &c. carta hen. . ballivis & burgens . mountgomer . danelage . see merchenlage . darrein , is a corruption from the french dernier , i. ultimus ; and we use it in the same sence , as darrein continuance . see continuance . darrein presentment , ( ultima presentatio . ) see assize of darrein presentment . datife , or dative , ( dativus , ) that may be given , or disposed of . whether a prior shall be datife , and removable , or perpetual , shall be tryed by the ordinary . anno rich. . ca. . si prior datife & removeable suffer eschape , respondeat superior . ed. . , . day , ( dies , ) is sometimes used for the day of appearance in court , either originally , or upon assignation ; and , sometimes for the returns of writs . for example , dayes in bank are dayes set down by statute , or order of the court , when writs shall be returned , or when the party shall appear upon the writ served ; for which , you may read the statutes hen . ca. & . — marlb . ca. — hen. . and the statute de anno bissextili . hen. . and lastly , hen. . ca. . to be dismissed without day , is to be finally discharged the court. he had a day by the roll ; that is , he had a day of appearance assigned him . kitchin , fol. & . day , year , and wast . see year , day , and wast . and see dies . deadly feud , ( feuda & faida , ) is a profession of an irreconcileable enmity , till we are revenged even by the death of our enemy . it is deduced from the german word ( feed , ) which , as hottoman , ( in verbis feudalibus ) saith , modo bellum , modo capitales inimicitias significat . it is used anno eliz. ca. . dead pledge , ( mortuum vadium . ) see morgage . de-afforested , that is discharged from being forest ; or , that is freed and exempted from the forest-laws . anno car. . ca. . johannes dei gratia , &c archiepiscopis , episcopis , &c. sciatis nos omnino deafforestaise forestam de brewood de omnibus quae ad forestam & forestarios pertinent . quare volumus & firmiter praecipimus quod praedicta foresta & homines in illa manentes & haeredes eorum sint deafforestati imperpetuum , &c. dat. apud brug . martii anno regni nostri . dean , ( gr. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , decem , ) is an ecclesiastical magistrate , so called , because he presides over ten canons or prebends at the least . we call him a dean that is under the bishop , and chief of the chapter , ordinarily in a cathedral church ; and , the rest of the society or corporation we call capitulum , the chapter . but , how diversly this word is used , read lindwood , tit. de constitut . ca. . verbo , decani rurales ; where rural deans are said to be certain persons that have jurisdiction ecclesiastical over other ministers and parishes neer adjoyning , assigned them by the bishop and arch-deacon , being placed and displaced by them : such are the dean of croiden in surrey , dean of battel in kent , &c. as there are two foundations of cathedral churches in england , the old and the new , ( the new are those which henry the eighth upon suppression of abbies transformed from abbot , or prior and convent , to dean and chapter , ) so are there two means of creating these deans : for , those of the old foundation were exalted to their dignity much like bishops ; the king first sending out his conge d'eslire to the chapter , the chapter then chusing , the king yielding his royal assent , and the bishop confirming him , and giving his mandate to enstal him . those of the new foundation are by a shorter course enstalled , by vertue of the kings letters-patent , without either election or confirmation . this word is also applyed to divers that are the chief of certain peculiar churches or chappels , as the dean of the kings chappel , the dean of the arches , the dean of st. georges chappel in windsor , &c. nec collegio alicui praefecti , nec jurisdictione ulla donati , nomine tamen velut honoris gratia insignes , sayes spelman . de bene esse , are three common latin words , but their signification more mysterious , conceiv'd to be thus , to take or do any thing de bene esse , is to accept or allow it , as well done for present ; but , when it comes to be more fully examin'd or try'd , to stand or fall , to be allowed or disallowed , according to the merit or well-being of the thing in its own nature ; or ( as we say ) valeat quantum valere potest : so in chancery , upon motion to have one of the less-principal defendants in a case , examin'd as a witness , the court ( not then throughly examining the justice of it , or not hearing what may be objected on the other side ) often orders such a defendant to be examined de bene esse . i. that his depositions shall be allowed or suppressed at the hearing of the cause , upon the full debate of the matter , as the court shall then think fit , but for the present they have a well-being , or conditionalallowance . it is used in langhams caso . croke part. fol. . debentur , was by a rum● act in , ordained to be in the nature of a bond or bill , to charge the common-wealth ( forsooth ) to pay the souldier-creditor , or his assignes the sum due upon auditing the account of his arrears . the form of which debentur , as then used , you may see in scobels rump-acts anno , ca. . the word is also mention'd in the act of oblivion , car. . ca. . sect. . and is used in the exchequer . see auditor of the receipts . debet & solet , are latin words , often used in our law-writers . in old nat. br. fol. . it is said , this writ de secta molendini , being in the debet and solet , is a writ of right , &c. and again , fol. . a writ of quod permittat may be pleaded in the county before the sheriff ; and , it may be in the debet , and solet , or in the debet , without the solet , according as the demandant claims . wherefore note , that those writs which are in this sort brought , have these words in them as formal words , not to be omitted . and , according to the diversity of the case , both debet and solet are used , or debet alone ; that is , if a man sue to recover any right , whereof his ancestor was disseis'd by the tenant or his ancestor , then he useth only the word debet in his writ ; because solet is not fit by reason his ancestor was disseis'd and the custom discontinued : but , if he sue for any thing that is now first of all deny●d him , then he useth both these words ; because his ancestors before him , and he himself usually enjoyed the thing sued for , as sute to a mill , or common of pasture , until this present refusal of the tenant . the like may be said of debet and detinet , as appears by the reg. of writs in the writ de debito , fol. . a. debito , or de debito , is a writ which lies , where a man ows another a sum of money by obligation , or bargain for any thing sold him , fitz. nat. br. fo . . this writ is made sometime in the detinet , and not in the debet , which properly falls out , where a man owes an annuity , or a certain quantity of wheat , barley , or such like , which he refuseth to pay , old. nat. br. fo . . see debet and solet . decem tales . see tales . deceit , ( deceptio , dolus , ) is a subtile , wily shift , or trick ; whereunto may be drawn all manner of craft , subtilty , guile , fraud , slight , cunning , covin , collusion and practise used to deceave another man by any means ; which hath no other more proper or particular name then deceit , or offence . west , pa. . symbol . tit . inditements . sect. . see cosoning , and new book of entries , verbo disceit . decenna , and decenniers . see deciners . decennary , ( decennaria , ) the limits or compass of ten friburghs . see deciners . deceptione , is a writ that lies properly for one that receives harm or dammage by him that does any thing deceitfully in the name of another . ( fitz. nat. br. fol. . ) and is either original , or judicial , as appears by old nat. br. fol. . where you may read the use of both , to this effect ; this writ of deceit , when it is original , lies where deceit is used to a man by another , by not sufficiently performing a bargain or promise , or by using some guile , whereby he may be disinherited , or evil intreated , &c. and , when judicial , it lies out of the rolls of record , as in the case where scire facias is sent to the sheriff , that he warn a man to be before the justices at a certain day , and the sheriff returns the writ , served , whereas the party was not warned , whereby he that sues the scire facias recovers ; then the party , who ought to have been warned , shall have the said writ against the sheriff . see reg. of writs , fol. . and reg. judicial in the table , verbo , deceptione . decies tantum , is a writ that lies against a juror , who hath taken money for giving his verdict , called so of the effect ; because it is to recover ten times so much as he took . it lies also against embracers that procure such an enquest . anno ed. . ca. . reg. of writs , fol. . fitz. nat. br. fol. . new book of entries , verbo , decies tantum . decimation , ( decimatio , ) the punishing every tenth souldier by lot was termed decimatio legionis : also a tithing , or paying the tenth part . what decimation was in the late usurpers time , ( , ) is still in the memory of many good subjects of this realm . see tenths . decimis solbendis pro possessionibus alienigenarum , is a writ or letters patent , yet extant in the register , which lay against those that had farmed the priors aliens lands of the king , for the rector of the parish , to recover his tyth of them . reg. of writs , fol. . deciners alias decenniers , alias doziners , ( decenarii , decearchi , ) signifie , in the ancient monuments of our law , such as were wont to have the oversight and check of the friburghs , for maintenance of the kings peace ; and , the limits , or compass of their jurisdiction was call'd decenna . bracton lib. . tract . . ca. . of whom you may also read fleta , lib. . ca. . and reg. of writs , fol. . b. these seemed to have large authority in the saxons time , taking knowledge of causes within their circuit , and redressing wrongs by way of judgment , and compelling men thereunto , as you may read in the lawes of k. edward the confessor , published by lambert , numb . . in later times i find mention of them , as in britton . ca. . who sayes , in the kings person , ( for so he writes his whole book , ) we will , that all those who are years old , shall make oath , that they shall be sufficient and loyal to us ; and , neither be felons , nor assenting to felons : and , we will , that all profess themselves to be of this or that dozein , and make , or offer surety of their behaviour by these or those doziners ; except religious persons , clerks , knights eldest sons , and women . yet , the same author in his th chap. sayes , all of years old and upwards are punishable for not coming to the sheriffs turn , except earles , prelates , barons , religious persons , and women . stamf. pl. cor. fol. . has these words ; the like law is , where the dozeniers make presentment , that a felon is taken for felony , and delivered to the sheriff , &c. and , kitchin , ( fol. . ) thus ; religious persons , clerks ; knights , or women , shall not be deceniers . a dozein seems now to extend so far , as every leet extends ; because in leets onely this oath is ministred by the steward , and taken by such as are twelve years old and upwards , dwelling within the precinct of the leet where they are sworn . fitz. nat. br. fol. . a. the particulars of this oath , you may read in bracton , lib. . tract . . cap. . num . . who sets down fifteen years for the age of those that are to be sworn to the kings peace , but afterwards names twelve years . see inlaugh . we may note out of the premisses , a diversity between the ancient and these modern times , in this point of law and government , as well in the age of those who are to be sworn , as also that decennier is not now used for the chief man of a dozein , but for him that is sworn to the kings peace ; and lastly , that now there are no other dozeins but leets , and that no man ordinarily gives other security for keeping the kings peace , but his own oath , and that therefore no man answers for anothers transgression , but every man for himself . see frank-pledge , and part. inst . fol . declaration ( declaratio ) is properly the shewing forth , or laying down in writing the cause of action in any sute at law , wherein the party supposes to have wrong . this , in an action real , is properly called a count , which ought to contain demonstration , declaration , and conclusion . in demonstration , are contained three things , viz. who complains , against whom , and for what matter : in the declaration there ought to be comprised , how , and in what manner the action rose between the parties , when , what day , year , and place , and to whom the action shall be given . and in the conclusion he ought to aver and proffer to prove his sute , and shew the damage he hath sustained by the wrong done him . terms de la ley. decretals ( decretales ) are a volume of the canon law , so called ; or books containing the decrees of sundry popes ; or a digestion of the canons of all the councils that pertained to one matter , under one head. dedi ( as if it be said in a feoffment , i. s. hath given , granted , &c. ) it is a warranty in law to the feoffee , and his heirs . coke on littl. fol. . a. dedimus potestatem ( i. we have given power ) is a writ whereby commission is given to one or more private persons , for the speeding of some act appertaining to a judge . the civilians call it delegationem . and it is granted most commonly upon suggestion , that the party , who is to do something before a judge , or in a court , is so weak , he cannot travel . it is used in divers cases , as to take a personal answer to a bill of complaint in chancery , to examine witnesses in a cause depending in that court ; to levy a fine , &c. west , part . . symbol . tit . fines , sect . . and divers other , as you may see in fitz nat. br and in the table of the reg. of writs , verbo , dedimus potestatem . déed ( factum ) is an instrument written in parchment or paper , consisting of three things , viz. writing , sealing , and delivery , and comprehending a contract or bargain between party and party : of which , there are two sorts , deeds indented , and deeds poll ; which names arise , from the form or fashion of them , the one being cut in and out in the top or side , which we call indented , the other being plain . a deed indented , is a deed consisting of two parts , or more ( for there are tripartite and quadripartite deeds ) in which it is expressed , that the parties thereto , have to every part thereof interchangably set their several seals . the cause of their indenting is , that it may appear they belong to one business or contract . a deed poll or polled ( anciently called charta de una parte ) is a plain deed without indenting ; as if we should say , the indenting is polled or cut off ; and is used , when the vendor for example onely seals , and there is no need of the vendees sealing a counterpart , by reason the nature of the contract is such , as it requires no covenant from the vendee , unless in such case the vendor will out of caution or curiosity have a counterpart , to see , upon any occasion , what covenants himself hath given . see coke on littl. fol. . b. déemsters or demsters ( from the saxon dema , i. a judge or umpire ) all controversies ( in the isle of man ) are decided without process , writings , or any charges , by certain judges , whom they chuse from among themselves , and call déemsters . camd. brit. tit . british islands . deer-hays , are engins or great nets , made of cords to catch deer . anno hen. . cap. . de essendo quietum de tolonio , is a writ that lies for those , who are by priviledge freed from the payment of toll , which read at large in fitz. nat. br. fol. . de expensis militum , is a writ commanding the sheriff to levy four shillings per diem , for the expences of a knight of the shire . and a like writ de expensis civium & burgensium , to levy two shillings per diem , for every citizen and burgess of parliament , inst . fol. . de facto , ( anno car. . cap. . ) which is actually done , done indeed . default ( fr. defaut ) is an offence in omitting that which we ought to do : of this bracton hath a whole tract , lib. . tract . . by whom it appears , that default is most notoriously taken for non-appearance in court at a day assigned . of this you may also read fleta , lib. . cap. . and coke on littl. fol. . b. defeizance ( of the fr. desfaire , i. to undo or defeat ) signifies a condition relating to a deed , as to a recognizance or statute , which being performed by the recognizor , the deed is disabled and made void , as if it never had been done . the difference between a proviso or condition in deed , and a defeizance , is , that those are inserted in the deed or grant ; this is usually in a deed by it self . of which you may read , west at large , par. . symb. lib. . sect . . defend ( fr. defendre ) signifies , in our ancient laws and statutes , to prohibit or forbid . as — usuarios defendit quoque rex edwardus , ne remanerent in regno . ll. ed. conf. cap. . & rich. . cap. . of which , thus chaucer . where can you say in any manner age , that ever god defended marriage . and in edw. . we have a statute , entituled statutum de defensione portandi arma , &c. it is defended by law to distrain in the highway . coke on littl. fol. . to this day , in divers parts of england , we say , god defend , instead of god forbid . and the fench moneth is more truly called the defence moneth , i. the forbidden moneth . see fench moneth . defendant ( defendens ) is he that is sued in an action personal ; as tenant is he , who is sued in an action real . see impediens . defendemus , is a word used in feofments and donations , and hath this force , that it binds the donor and his heirs to defend the donce ; if any man go about to lay any servitude on the thing given , other then is contained in the donation . bracton , lib. . cap. . num . . see warranty . defender of the faith ( defensor fidei ) is a peculiar title given to the kings of england by the pope , as catholicus to the king of spain , christianissimus to the king of france , and advocatus ecclesiae to the emperor : which title was given by pope leo the tenth to king henry the eighth , for writing against martin luther , in behalf of the church of rome , and the bull for it bears date quinto idus octobr. . which may be seen at length in the lord herberts history of henry the eighth , fol. . deforcement ( deforciamentum ) matth. paris , fol. . quicunque deforciaverit eis dotem , & de ipso deforciamento convicti fuerit . id est , per vim abstulerit . a withholding lands or tenements by force from the right owner . see deforceor , and coke on littl. fol. . b. deforciant ( anno eliz. cap. . ) the same with deforceor . deforceor ( deforciator , of the fr. forceur , i. expugnator ) is one that overcomes and casts out by force , and differs from disseisor : first in this , because a man may disseise another without force , which is called simple disseisin . britton , cap. . next , because a man may deforce another that never was in possession . for example , if more have right to lands , as common heirs , and one entring , keeps out the rest , the law says , he deforceth them , though he do not disseise them . old nat. br. fol. . and littleton , ( cap. discontinuance , fol. . ) says , he who is inseoffed by the tenant in tail , and put in possession , by keeping out the heir of him in reversion being dead , doth deforce him , though he did not disseise him ; because he entered , when the tenant in tail was living , and the heir had no present right . a deforceor differs from an intruder , because a man is made an iutruder by a wrongful entry onely into land or tenement void of a possessor ; and a deforceor is he that holds out the right heir as abovesaid . bracton , lib. . cap. . degrading . see disgrading . delegates ( anno hen. . cap. . ) are commissioners so called , because delegated or appointed by the kings commission under the great seal , to sit upon an appeal to the king in the court of chancery in three cases . first , when a sentence is given in any ecclesiastical cause , by the archbishop or his official . secondly , when any sentence is given in any ecclesiastical cause in places exempt . thirdly , when a sentence is given in the admiral court in sutes , civil and marine , by order of the civil law. part. inst . fol. . anno eliz. cap. deliverance . see replegiare . delf ( from the sax. delfan , to dig or delve ) is a quarry or mine , where stone or coal is dug . anno eliz. cap. . and in a charter of edward the fourth , there is mention of a mine or delf of copper . camd. demain or demesn ( dominicum . gallis , domanium . italis , demanium ) accipitur multipliciter ( says bracton ) est autem dominicum , quod quis habet ad mensam suam & propriè , sicut sunt bordlands , anglicè , i. dominicum ad mensam . item dicitur dominicum , villenagium quod traditur villanis , quod quis tempestive & & intempestive resumere possit pro voluntate sua & revocare . lib. . tract . . cap. . num . . demains ( according to common speech ) are the lords chief mannor place , with the lands thereto belonging , which he and his ancestors have from time to time kept in their own manual occupation ; howbeit ( according to law ) all the parts of a mannor ( except what is in the hands of freeholders ) are said to be demains . and the reason why copihold is accounted demain , is because copiholders are adjudged in law to have no other estate , but at the will of the lord ; so that it is still reputed to be in a manner in the lords hands . demain is sometimes used in a more special signification , as opposite to frank-fee : for example , those lands which were in the possession of king edward the confessor , are called ancient demains , and all others frank-fee ; and the tenants which hold any of those lands are called tenants in ancient demain ; the others , tenants in frank-fee . kitchin , fol. . see more on this subject in the learned spelman , verbo , dominicum . demand ( fr. demande , i. postulatio ) signifies a calling upon a man for any thing due . it hath also a proper signification , distinguished from plaint : for all civil actions are pursued , either by demands or plaints ; and the pursuer is called demandant or plaintiff , viz. demandant in actions real , and plaintiff in personal . and where the party pursuing is called demandant , the party pursued is called tenant ; where plaintiff , there defendant . if a man release to another all demands , this is the best release which the releasee can have , and shall enure most to his advantage . littl. fol. . a. there are two manner of demands , the one in deed , the other in law : in deed , as in every praecipe , there is express demand : in law , as every entry in land , distress for rent , taking or seising of goods , and such like acts , which may be done without any words , are demands in law. as a release of sutes is more large then a release of quarrels or actions ; so a release of demands is more large and beneficial , then either of them . by release of all demands , all executions , and all freeholds and inheritances executory are released ; by release of all demands to the disseisor , the right of entry in the land , and all that is contained therein , is released . and he that releaseth all demands , excludes himself from all actions , entries , and seisures ; but a release of all demands , is no bar in a writ of error to reverse an outlary . coke , lib. . fol. , . demandant ( petens ) is he , who is actor or plaintiff in a real action , because he demandeth lands , &c. coke on littl. fol. . b. see demand . demain-cart of an abbot , seems to be that cart , which the abbot used upon his own demain . anno hen. . cap. . demi-haque . see haque and haquebuz . demise ( dimissio ) is applied to an estate either in fee-simple , fee-tail , or for term of life , and so it is commonly taken in many writs . part. inst . fol. . the kings death is in law , termed the demise of the king. demsters . see deemsters . demurrer ( from the fr. demeurer , i. manere in aliquo loco , vel morari ) is a kinde of pause or stop put to the proceedings of any action upon a point of difficulty , which must be determined by the court , before any further proceedings can be had therein : for in every action , the controversie consists , either in fact or in law ; if in fact , that is tried by the jury ; if in law , the case is plain to the judge , or so hard and rare , as it breeds just doubt . we call that plain to the judge , wherein he is assured of the law ; though perhaps the party and his council yield not to it : and in such case , the judge with his associats , proceed to judgment , without more ado ; but when it is doubtful , then stay is made , and a time taken , either for the court to consider further of it , and agree if they can ; or else , for all the judges , to meet together in the exchequer chamber , and upon hearing what the serjeants can say on both sides , to determine what is law , and whatsoever they conclude , stands firm without further appeal . smith de repub. angl. lib. . cap. . this demurrer is in our records expressed in latin by moratur in lege . at the common law , the defendant sometimes demurreth to the plaintiffs count or declaration , and sometimes the plaintiff demurs to the defendants plea , by averring , that it is not a sufficient plea in the law , &c. in chancery , the defendant demurs to the plaintiffs bill , averring it to be defective in such , or such a point , and demands the judgment of the court thereupon , whether he shall be compelled to make any further or other answer thereunto , &c. see moratur in lege . denariata terrae . see fardingdeal of land. denariatus , precium rei quae denario constat : mercis , redditus , terrae . sciant — quod ego willielmus filius philippi de colewal dedi — egidio de la berne de hereford pro quadam summa pecuniae — octo denariatos annui redditus , &c. sine dat . denelage or danelage , ( from the sax. dane and laga , lex ) is the law the danes made here in england . see merchenlago . denizen ( fr. donaison , i. donatio ) signifies an alien that is enfranchised here in england , by the kings charter and donation , and enabled in many respects , to do , as the kings native subjects do , namely , to purchase and possess lands , to be capable of any office or dignity . yet is it short of naturalization ; because a stranger naturalized may inherit lands by descent , which a denizen cannot . and again in the charter , whereby a man is made denizen , there is commonly contained some one clause or other , that abridges him of that full benefit which natural subjects enjoy . and when a man is thus enfranchised , he is said to be under the kings protection , or esse ad fidem regis angliae ; before which time , he can enjoy nothing in england . bracton ( lib. . tract . . cap. . num . . ) saith , that he and his goods might be seised to the kings use . see horns mirror , lib. . cap. de la venue de franc-plege , and part. inst . fol. . de non residentia clerici regis , is an ancient writ , the form whereof see in part. inst . fol. . deodand ( deodandum ) is a thing given or forfeited , as it were to god for the pacification of his wrath , in a case of misadventure , whereby a christian soul comes to a violent end , without the fault of any reasonable creature . as , if a horse strike his keeper and kill him : if a man , in driving a cart , falls so , as the cart-wheel runs over him , and presses him to death : if one be felling a tree , and gives warning to the standers by , to look to themselves , yet a man is killed by the fall of it . in the first of these cases , the horse ; in the second , the cart-wheel , cart , and horses ; and in the third , the tree is to be given to god , that is , to be sold and distributed to the poor , by the kings almoner , for expiation of this dreadful event , though effected by unreasonable , yea , sensless and dead creatures . stamf. pl. cor. lib. . cap. . bracton , lib. . tract . . cap. . omnia quae movent ad mortem sunt deodanda . fleta says , this deodand is to be sold , and the price distributed to the poor , for the soul of the king , his ancestors , and all faithful people departed this life . lib. . cap. . de submersis . which law seems to bear an imitation of that in exodus , cap. . si cornu perierit bos virum vel mulierem , ita ut moriatur , lapidabitur bos neque comedetur caro ejus , ac dominus ejus crit innocens . this word is mentioned in the stat. de officio coronatoris , anno edw. . see part. inst . fol. . deoneranda pro rata portionis , is a writ that lies where one is distrained for a rent , that ought to be paid by others proportionably with him . for example , a man holds ten oxgangs of land , by fealty , and ten shillings rent of the king , and aliens one oxgang thereof to one , and another to another in fee : afterward , the sheriff or other officer distrains onely one of them for the rent , he that is so distrained , may have this writ for his relief . fitz. nat. br. fol. . departer or departure is a word properly applied to him , who , first pleading one thing in bar of an action , and being replied unto , does in his rejoynder , wave that , and shew another matter contrary , or not pursuing his first plea. plowden in reneger and fagossa , fol. , . or it may be applied to a plaintiff , who in his replication , shews new matter from his declaration . as in crokes part , bagshaws case , fol. . the defendant hereupon demurred , because it was a departure from the declaration . so if a man plead a general agreement in bar , and in his rejoynder alleage a special one , this shall be adjudged a departure in pleading . departure in despight of the court , is when the tenant or detendant appears to the action brought against him , and hath a day over in the same term , or is called after , though he had no day given him , so it be in the same term ; if he do not appear , but make default , it is a departure in despight of the court , and therefore he shall be condemned ; which departure is always of the part of the tenant or defendant , and the entry of it is , quod praedictus a , licet solenniter exactus , non revenit , sed in contemptum curiae , recessit & defaltum fecit coke , lib. . fol. . departers of gold and silver . see finors . depopulation ( depopulatio ) a wasting , pilling , or destruction ; a desolation , or unpeopling of any place . cokes rep. fol. . depopulatores agrorum , it appears by the stat. hen. . cap. . that they were great offenders by the ancient law , and that the appeal or indictment of them , ought not to be general , but in special manner . they are called depopulatores agrorum , for that by prostrating or decaying the houses or habitation of the kings people , they depopulate , that is , dispeople the towns. part. inst . fol. . deposition ( depositio ) is the testimony of a witness , otherwise called a deponent , put down in writing by way of answer to interrogatories , exhibited to that purpose in the court of chancery ; and when such witness is examined in open court , he is said to be examined viva voce . deposition is also used for death ; as in provin . angl. lib. . tit . de feriis . ordinamus quod festum depositionis sancti johannis de beverlaco , die mail. — per provinciam nostram antedictam perpetuit temporibus colebretur . deprivation ( deprivatio ) a depriving , bereaving , or taking away . — with the loss or deprivation of all the spiritual promotions , whereof , &c. anno & edw. . cap. . deprivation of bishops and deans . anno eliz. cap. . de quibus sur disseisin , is a writ of entry . see fitz. nat. br. fol. . deraign or dereyn ( disrationare vel dirationare ) signifies generally , to prove , as dirationabit jus suum haeres propinquior . glanvil . lib. . cap. . and , dirationabit terram illam in curia mea , he proved that land to be his own . idem , lib. . cap. . bracton uses it in the same sence , habeo sufficientem disratiocinationem & probationem , lib. . tract . . cap. . and so he useth disrationare , lib. . cap. . and to dereyn the warranty , old nat. br. fol. . to deraign that right , edw. . cap. . and westm . . cap. . anno edw. . cap. . when the parson of any church is disturbed to demand tythes in the next parish , by a writ of indicavit , the patron shall have a writ to demand the advowson of the tythes , being in demand , and when it is deraigned , then shall the plea pass in the court christian , as far forth as it is deraigned in the kings court. in some places the substantive dereinment is used in the very literal signification with the french disrayer or desranger , that is , turning out of course , displacing or setting out of order ; as deraignment or departure out of religion , anno hen. . cap. . and & edw. . cap. . and dereinment or discharge of their profession . hen. . cap. . which is spoken of those religious men , who forsook their orders and professions . so kitchin , fol. . the leasee enters into religion , and afterwards is dereigned . and britton , cap. . hath these words semounse desrenable , for a summons that may be challenged , as defective , or not lawfully made . of this you may read something more in skene , verbo , disrationare , where , in one signification , he confounds it with our waging and making of law. see lex deraisnia . descent . see discent . de son tort demesn ( fr. ) are words of form , used in an action of trespass by way of reply to the defendants plea. for example , a. sues b. in such an action , b. answers for himself , that he did that which a. calls a trespass , by the command of c. his master ; a. saith again , that b. did it , de son tort demesne , sans ceo que c. luy command , modo & forma — that is , b. did it of his own wrong , without that that c. commanded him , in such form , &c. detinet . see debito and debet and solet . detinue , ( detinendo , ) is a writ that lies against him , who , having goods or chattels deliver'd him to keep , refuses to re-deliver them . see fitz. nat. br. fo . . to this is answerable in some sort actio depositi in the civil law. and he takes his action of detinue , who intends to recover the thing deteined , and not the damages sustained by the detinue . kitchin , fol. . see the new book of entries , verbo , detinue . devastaverunt bona testatoris , is a writ lying against executors , for paying legacies and debts without specialties , to the prejudice of the creditors that have specialties , before the debts on the said specialties are due ; for in this case the executors are as liable to action , as if they had wasted the goods of the testator riotoufly , or converted them to their own use ; and are compellable to pay such debts by specialty out of their own goods , to the value of what they so paid illegally . for the orderly payment of debts and legacies by executors , so as to escape a devastation or charging their own goods ; see the office of executors , ca. . devenerunt , ( lat . ) is a writ anciently directed to the escheator , when any of the kings tenants , holding in capite , dyed ; and when his son and heir , within age , and in the kings custody , dyed ; then this writ went forth , commanding the escheator , that he , by the oath of good and lawful men , enquire what lands and tenements , by the death of the tenant , came to the king. see dyer , fol. . pl. . and keilways rep. fol. . a. though this writ in the sence abovesaid be disused , yet a new use of it is prescribed by act of parl. car. . ca. . entituled , an act for preventing frauds , and regulating abuses in his majesties customes . devest , ( devestire ) is contrary to invest ; for , as invest signifies to deliver the posession of any thing ; so devest signifies the taking it away . devise , or divise , ( from the french , deviser , to confer , or converse with ; or from diviser , to divide , or sort into several parcels ) is properly that act , by which a testator gives , or bequeaths his lands or goods , by his last will in writing . he who makes the devise is called the devisor ; and he to whom the devise is made , the devisee . the words of a will the law interprets in a larger and more favourable sence then those of a deed ; for , if land be devised to a man , to have to him for ever , or to have to him and his assignes ; in these two cases the devisee shall have a feesimple ; but , given in the same manner by feoffment , he has but an estate for term of life . so , if one devise land to an infant in his mothers belly , it is a good devise ; but , 't is otherwise by feoffment , grant or gift , for in those cases , there ought to be one of ability , to take presently , otherwise it is void . eliz. dyer . . and coke on litt. fol. . deboires of caleis , ( anno rich. . stat. . ca. . ) were the customes due to the king , for merchandise brought to , or carried out of caleis , when our staple was there . — paying their customes and devoyres to the king. anno ed. . ca. . devoire in french signifies duty . devorce . see divorce . dictum de kenelworth , was an edict or award , between king henry the third and all those barons and others , who had been in armes against him ; and so called , because it was made at kenelworth-castle in warwickshire . anno hen. . containing a composition for the lands and estates of those who had forfeited them in that rebellion . dicker of leather , is a quantity consisting of ten hides ; the word probably comes from the greek , 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , which signifies ten. diem claufit extremum , was a writ that issued out of the chancery , to the escheator of the county , upon the death of any of the kings tenants in capite , to inquire by a jury , of what lands he died seised , and of what value , and who was next heir to him . fitz. nat. br. fol. . dies . in the common-law there are dies juridici , & dies non juridici . dies non juridici are all sundayes in the year ; and , in easter-yerm , the feast of the ascension of our lord ; in trinity term , the nativity of st john baptist ; in michaelmas term the feasts of all saints , and all souls ; and , in hillary term , the purification of the blessed virgin - mary . and this was the antient law of england , and extends not onely to legal proceedings , but to contracts . part. inst . fol. . dies datus , is a day , or time of respit given to the tenant or defendant by the court. brooke , tit . continuance . dignitaries , ( dignitarii , ) are those who are advanced to the ecclesiastical dignity of dean , arch-deacon , prebendary , &c. see part. inst . fol. . dieta rationabilis , is in bracton used for a reasonable days journey . lib. . tract . . ca. . dignity ecclesiastical , ( dignitas ecclesiastica , ) is mention'd in the stat. hen. . ca. & . ejusdem , ca. . and is by the canonists defin'd to be , administratio cum jurisdictione & potestate aliqua conjuncta ; whereof you may read divers examples in duarenus . de sacris eccles . ministris & beneficiis , lib. . ca. . of dignities and prebends cam. reckons in england . britan. pa. . dilapidation , ( dilapidatio , ) a wastful spending , or destroying ; or the letting buildings run to ruine and decay for want of due reparation . anno eliz. ca. . money recover'd for dilapidations shall be employ'd in repair of the same houses . anno eliz. ca. . dioces , ( diocesis , from the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 and 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , ) signifies with us the circuit of every bishops jurisdiction ; for , this realm hath two sorts of divisions , one into shires or counties , in respect of temporal policy ; another into diocesses , in order to jurisdiction ecclesiastical , of which we reckon in england , and . in wales . dimidietas , the one half . sciant — quod ego matilda filia willielmi le franceys dedi — waltero de stetton dimidietatem illius burgagii , &c. sine dat . ex libro cart. priorat . leominstr . disability , ( disabilitas , ) is , when a man is disabled , or made incapable , to inherit or take that benefit which otherwise he might have done ; which may happen four wayes ; by the act of the party , or his ancestor ; by the act of law , or of god. disability by the parties own act , is , if i bind my self , that upon surrender of a lease , i will grant a new estate to the lessee , and afterwards i grant over my reversion ; in this case , though i afterwards repurchase the reversion , yet i have forfeited my obligation , because i was once disabled to perform it . coke lib. . fol. . also if a man be excommunicated , he cannot , during that time , sue any action , but shall be thereby disabled . coke lib. . fol. . disability by the act of an ancestor is , if a man be attainted of treason or felony ; by this attainder , his blood is corrupt , and both himself and children disabled to inherit . disability by the act of law is most properly , when a man by the sole act of the law is disabled ; and so is an alien born , who is disabled to take any benefit thereby . disability by the act of god , is , where a man is not of whole memory , which disables him so , that in all cases , where he passeth any estate out of him , it may , after his death , be disanull'd ; for it is a maxim in law , that a man of full age shall never be recceav'd to disable his own person . coke . lib. . fol. , . disalt , signifies as much as to disable . littleton in his chapter of discontinuance . discarcatio , an unloading . ex codice m. s. in turr. lond. disboscatio , a turning wood-ground into arable or pasture , an assarting . see assart . disceit . see deceit and deceptione . discent , ( latin , discensus . french descente , ) an order or means whereby lands or tenements are derived unto any man from his ancestors ; as to make his discent from his ancestors , ( old nat. br. fol. . ) is to shew how and by what particular degrees the land in question came to him from his ancestors . this discent is either lineal or collateral ; lineal discent is convey'd downward , in a right-line , from the grandfather to the father , and from the father to the son , and from the son to the nephew , &c. collateral discent springs out of the side of the whole blood , as grandfathers brother , fathers brother , &c. if one die seised of land ( in which another has right to enter , ) and it descends to his heir , such discent shall take away the others right of entry , and put him to his action for recovery thereof . stat. hen. . ca. . coke on litt. fol. . disclaimer , ( from the french , clamer , with the privative dis , ) is a plea containing an express denyal , renouncing , or disclaiming . as , if the tenant sue a replevin upon a distress taken by the lord , and the lord avow , saying , that he holds of him , as of his lord , and that he distreyned for rent not paid , or service not perform'd ; then the tenant , denying to hold of such lord , is said to disclaim , and the lord proving the tenant to hold of him , the tenant loseth his land. also if a man denying himself to be of the blood or kindred of another in his plea , is said to disclaim his blood. see coke on litt. fol. . and fitz. nat. br. fol. . if a man arraigned of felony , disclaim goods ; being cleared , he loseth them . see broke , and new book of entries , tit . disclaimer : and stamf. pl. cor. fol. . in chancery , if a defendant by his answer disclaim the having any interest in the thing in question , this is also called a disclaimer . discontinuance , ( discontinuatio , ) signifies an interruption , intermission , or breaking off ; as discontinuance of possession , or of process : the effect of discontinuance of possession is this , that a man may not enter upon his own land or tenement alienated , whatsoever his right be to it , of his own self , or by his own authority , but must bring his writ , and seek to recover possession by law : as if a man alien the lands he hath in right of his wife , or if tenant in taile make any feoffment , or lease for life , not warranted by the stat. hen. . by fine , or livery of seizin , such alienations are called discontinuances ; which are indeed impediments to an entry , whereby the true owner is left onely to his action . see the institutes of the common-law , ca. . and cokes reports , lib. . case of fines . the effect of discontinuance of plea , is , that the opportunity of prosecution is lost , and not recoverable , but by beginning a new sute ; for to be discontinued , and to be put without day is all one , and nothing else but finally to be dismissed the court for that instant . so crompton , in his jurisdict . fol. . useth it , in these words , if a justice seat be discontinued , by the not coming of the justices , the king may renew the same by his writ , &c. in this signification fitz. ( in his nat. br. ) useth it divers times , as discontinuance of corody , fol. . a. to discontinue the right of his wife , fol. . l. and . l. discontinuance of an action , discontinuance of an assize , fol. . d. . b. anno . eliz. ca. . — car. . ca. . and ejusdem , ca. . coke on littl. fol. . disfranchise , ( car. . ca. . ) to take away ones freedom or priviledge ; it is the contrary to enfranchise , which vide . disgrading or degrading ( degradatio ) is the punishment of a clerk , who , being delivered to his ordinary , cannot purge himself of the offence , whereof he was convict by the jury , and it is the privation or devesting of the holy orders which he had , as priesthood , deaconship , &c. stamf. pl. cor. fol. & . there is likewise the disgrading of a lord , knight , &c. sir andrew harkley , earl of carlisle was convicted . degraded , and attainted of treason , hill. edw. . coram rege , rot. , . and by the stat. car. . cap. . william lord monson , sir henry mildmay , and others therein named , were degraded from all titles of honor , dignities , and preheminencies , and none of them to bear or use the title of lord , knight , esquire , or gentleman , or any coat of arms for ever after , &c. by the canon law there are two sorts of degrading , one summary , by word onely ; the other , solemn , by devesting the party degraded of those ornaments and rights , which are the ensigns of his order or degree . see seldens titles of honor , fol. . disherison ( fr. desheritement ) is an old word , signifying as much as disinheriting . it is used in the statute of vouchers , made edw. . our lord the king , considering his own damage and disherison of his crown , &c. and in . rich. . cap. . disheritor . — the sheriff shall forthwith be punished , as a disheritor of our lord the king , and his crown . anno edw. . cap. . one that disinheriteth , or puts another out of his inheritance . dismes ( decimae ) are tythes , or the tenth part of all the fruits , either of the earth or beasts , or our labor , due to god ; and consequently to him , who is of the lords lot , and had his share , viz. our pastor . also the tenths of all spiritual livings , yearly given to the prince ( called a perpetual dism , anno & edw. . cap. . ) which in ancient times were paid to the pope , till he gave them to richard the second , to aid him against charles the french king , and those others that upheld clement the seventh against him . pol. virg. hist . angl. lib. . lastly , it signifies a tribute levied of the temporalty . holinshed in hen. . fol. . disparagement ( disparagatio ) was used especially for matching an heir in marriage under his or her degree , or against decency . see cowels institutes , tit . de nuptiis , sect . . and coke on littl. fol. . b. dispauper , when any person by reason of his poverty , attested by his own oath , of not being worth l , his debts being paid , is admitted to sue in forma pauperis ; if afterwards , before the sute be ended , the same party have any lands , or personal estate faln to him , or that the court , where the sute depends , think fit , for that or other reason , to take away that priviledge from him , then he is said to be dispaupered , that is , put out of the capacity of suing in forma pauperis . disrationare , est contrarium ratiocinando asserere , vel quod assertum est ratiocinando destruere . we now call it traversare , to traverse . see gloss . in decem scriptor . and deraign . disseisin ( fr. dissaisine , not from disseisir , as cowel mistakes it ) signifies an unlawful dispossessing a man of his land , tenement , or other immovable or incorporeal right . and how far this extends , see bracton , lib. . cap. . therefore the assises are called writs of disseisin , that lie against disseisors in any case , whereof some are termed little writs of disseisin , being vicontiel , that is suable before the sheriff in the county court , because determined by him without assise . reg. of writs , fol. . as , for nusances of no great prejudice . disseisin is of two sorts , either simple disseisin , committed by day without force and arms , ( bracton , lib. . cap. , britton , cap. , , . ) or disseisin by force , for which see deforceor and fresh disseisin . see redisseisin and post disseisin . see skene , verbo disseisina . how many ways disseisin is committed , see fleta , lib. . cap. . sect. fit autem ; and when it is lawful , cap. . wrongful disseisin is no descent in law. hen. . cap. . disseisor , is he that disseiseth or puts another out of his land : and disseisee is he that is so put out . anno hen. . cap. . disseisoresse , is she that disseiseth another . coke on littl. fol. . b. distress ( fr. ) signifies most commonly a compulsion in certain real actions , whereby to cause a man to appear in court , or to pay rent , or other duty denied ; or it is the thing distreined . the effect whereof most commonly is , to compel the party distreined to replevy the distress , and so take his action of trespass against the distreiner , or else to compound neighborly with him for the debt or duty , for which he distreins . there are divers things not distreinable , as another mans gown in the house of a tailor , or cloth in the house of a fuller , sheerman , or weaver : for they , being common artificers , it is presumed such things belong not to themselves , but to others . victual is not distreinable , nor corn in sheaves , unless they be in a cart : for a distress ought to be of such things , whereof the sheriff may make replevin , and deliver again in as good case , as they were at the time of the taking . a man may distrein for homage of his tenant , for fealty , escuage , and other services , and for fines , and amerceaments assessed in a leet , but not in a court baron , and for damage-feasant , &c. but not for rent due for any land , except upon the same land charged therewith , &c. when one hath taken a distress , it behoves him to bring it to the common pound , or he may keep it in an open place , so that he give notice to the party , that he ( if the distress be a quick-beast ) may give it food . see the stat. de districtione scaccarii , hen. . distress , is by britton , cap. . divided into personal and real . distress personal is made by distreining a mans movable goods , and seising all the profits of his lands and tenements from the teste , or date of the writ , for the defendants contempt , in not appearing to an action brought against him , after he was summoned or attached ; and the issues so returned by the sheriffs , are forfeited to the king , and estreated into the exchequer . distress real , is made upon immovable goods . this differs from an attachment in this ( among others ) that it cannot be taken by any common person , without the compass of his own fee ; except it be presently after the cattle , or other thing , is driven or born off the ground , purposely to avoid the distress . fitz. nat. br. fol. . see attach . and the stat. car. . cap. . distress is also divided into finite and infinite ; finite is that which is limited by law , how often it shall be made to bring the party to tryal of the action , as once , 〈◊〉 , &c. old nat. br. fol. . distress infin●●● , is without limitation , until the party come ; as against a jury , which refuseth to appear upon certificate of assise , the process is venire facias , habeas corpora , and distress infinite . old nat. br. fol. . then it is divided into a grand distress ( anno hen. . cap. . ) which fitzherbert calls magnam districtionem , and an ordinary distress . a grand distress is that which is made of all the goods and chattels that the party hath within the county . britton , cap. . fol. . but see whether it be not sometimes all one with a distress infinite . idem , fol. . with whom also the statute of marlbridge seems to agree . anno hen. . cap. , & . see grand distress and attachment . district ( districtus ) is the place in which a man hath the power of distreining , or the circuit or territory wherein one may be compelled to appear . britton , cap. . where we say , hors de son fee , others say , extra districtum suum . distringas , is a writ directed to the sheriff , or any other officer , commanding him to distrein one for a debt to the king , &c. or for his not appearance at a day . see great diversity of this writ in the table of register , judic . verbo distringas . this was sometimes of old called constringas , as appears by this writ in henry the first or second days . lib. rames . sect . . henricus rex angliae hominibus abbatis de ramesia salutem . praecipio quod cito & justè reddatis abbati domino vestro , quicquid ei debetis in censu , & firma , & debitis , & placitis , sicut justè monstrare poterit quod ei debeatis . quod si nolueritis , ipse vos inde constringat per pecuniam vestram . teste cancellar , apud glocester . by pecuniam vestram , in those days was understood bona & catalla . dividend , in the exchequer seems to be one part of an indenture . anno edw. . cap. . and ejusdem , stat. . cap. . dividend in the university , is that share or part , which every one of the fellows does equally and justly divide , either by an arithmetical or geometrical proportion of their annual stipend . divise . see devise . divorce ( divortium à divertenda ) is a separation of two ; de facto married together ; of which , there be two kindes , one a vinculo matrimonii ; the other , a mensa & thoro . the woman divorced , a vinculo matrimonii receives all again that she brought with her . this onely arises upon a nullity of the marriage , through some essential impediment , as consanguinity or affinity within the degrees forbidden , precontract , impotency , &c. of which impediments , divines reckon fourteen , comprehended in these verses , error , conditio , votum , cognatio , crimen , cultus , disparitas , vis , ordo , ligamen , honestas , si sis affinis , si fortè coire nequibis , si parochi & duplicis desit presentia testis , raptave sit mulier , nec parti reddita tutae . divorce , is a judgment spiritual , wherefore , if there be occasion , it ought to be reversed in the spiritual court. see coke , lib. . kennes case . idem , lib. . fol. . and on littl. fol. . in the old law , the woman divorced was to have of her husband a writing ( as s. jerome and josephus testifie ) to this effect , i promise , that hereafter i will lay no claim to thee ; which was called a bill of divorce . docket , is a brief in writing . anno & ph. & ma. cap. . west writes it dogget , by whom it seems to be some small peece of paper or parchment , containing the effect of a greater writing . symbol . par . . tit . fines , sect . . to do law ( facere legem ) is as much as to make law. anno hen. . cap. . see make. dogdraw , is a manifest deprehension of an offender against venison in a forest , when he is found drawing after a dear by the scent of a hound , led in his hand . there are four of these noted by manwood , par . cap. . num . . viz. stablestand , dogdraw , back bear , and bloodihand . dogger , a kinde of little ship. anno edw. . stat . . cap. . — all the ships called doggers and landships , &c. dogger-fish . ibidem , cap. . seems to be fish brought in those ships to blackness haven , &c. dogger-men ( hen. . cap. . ) sea-men that belong to dogger-ships . dogget . see docket . doitkin , was a kinde of base coyn of small value , prohibited by the stat. hen. . cap. . hence we still retain the phrase , not worth a doitkin . dole ( dola . sax. doel . pars , portio , a doelan , dividere , distribuere ) is a part or portion most commonly of a meadow , so called to this day . as dole-meadow ( anno jac. cap. . ) where several persons have shares . in le suthmede ( i. prato australi ) habet prior per sortem illam quae vocatur crumddprest , tres dolas , sicut sors illa cadit . et in qualibet dola , habet polas , sive octo andenas ( i. swaths ) jacentes simul . lib. priorat . dunstable , cap. . dolefish , seems to be that fish , which the fisher-men , yearly employed in the north-seas , do of custom receive for their allowance or shares . see the stat. hen. . cap. . dolg-bote ( sax. ) a recompence , amends , or satisfaction made for a scar or wound . sax. dict. ll. aluredi regis , cap. . dolgbot legitur . dom-boc ( sax. ) liber judicialis . legg . edovardi regis senioris , cap. . bede swa dom-boc taece , i. compenset sicut liber judicialis statuerit . some book of statutes or decrees proper to the english saxons ; such haply as that wherein the laws of former saxon kings were contained . that chapter seeming to refer to the laws of king ina , cap. . domesday or domesdei ( liber judiciarius , aliàs censualis angliae ) comes from the saxon dom , i. judgment , not domus dei , ( as some authors have it ) is a book , which now remains in the exchequer , containing two great volumes ; it was made in william the conquerors time , according to camden in his britannia , who proves it out of ingulphus , that flourished in the same time ; and whose words are , totam terram descripsit , nec erat hyda in totā angliā , quin valorem ejus & possessorem scivit , nec lacus , nec locus aliquis , quin in regis rotulo extitit descriptus , ac ejus reditus & proventus , ipsa possessio & ejus possessor regiae notitiae manifestatus , juxta taxatorum fidem , qui electi de qualihet patriâ territorium proprium describebant . iste rotulus vocatus est rotulus wintoniae , & ab anglis , pro sua generalitate , quòd omnia tenementa totius terrae continuit , domesday cognominatur . so it is called in the stat. rich. . cap. . and in ockams lucubrations de fisci regis ratione , which seems to be taken out of liber rubeus , in the exchequer . it is called liber judiciarius ; quia in eo totius regni descriptio diligens continetur , singulorumque fundorum valentia exprimitur : and domesday ( as gervas . tilbur . says ) non quod in eo de propositis aliquibus dubiis feratur sententia , sed quod a praedicto judicio non liceat ulla ratione discedere . it was begun in the year . and finished . camden calls it gulielmi librum censualem , the tax-book of william . see more , if you please , in spelm. gloss . and inst . fol. . i finde it also written domesdey , in an ancient record . domicellus and domicella . john of gaunt , duke of lancaster , had by katherine swinford , before marriage , four illegitimate children , viz. henry , john , thomas , and joan ; and , because they were born at beaufort in france , they were vulgarly called henry de beaufort , &c. john before rich. . was knighted , and henry became priest . at the parliament holden rich. . the king , by act of parliament in form of a charter , did legitimate these children . rex — charissimis consanguineis nostris nobilibus viris johanni militi , henrico clerico , thomae domicello ac dilectae nobis nobili mulieri johannae beaufort domicellae , gormanis praecharissimi avunculi nostri , johannis ducis lanc. natis ligeis nostris , salutem , &c. teste rege apud westm . . dic febr. per ipsum regem in parliamento . in this act ( says sir edw. coke , inst . fol. . ) the said thomas , before his legitimation , could not be called esquire ; and therefore had the addition domicello , derived of the french word domoicel , which ( says he ) signifies a young soldier not yet knighted , or nobly born , &c. which is a mistake ; for there is no such french word as domoicel , but damoisel ; nor can domicellus properly be derived from thence , but is an obsolete latin word , and anciently given ▪ as an appellation or addition to the kings ( natural ) sons in france , and sometimes to the eldest sons of noblemen there ; from whence , doubtless , we borrowed the words . see spel. gloss . verbo domicellus . tidemannus permissione divina wigorn. episcopus dilecto in christo filio johanni de fulwode nostrae dioc. domicello , salutem . — dat. febr. rich. . here it is used to a private gentleman , as lord of a mannor . dominica in ramis palmarum , palm-sunday . md. quod ego henricus de erdington feci homagium & fidelitatem domino will. de stafford apud bromshulf in com. staff. dic mercurii prox . ante dominicam in ramis palmarum , anno regni regis edw. xxiii , pro terris & tenementis quae teneo in villa de hunstanscote in com. war. &c. domo reparanda , is a writ that lies for one against his neighbor , by the fall of whose house , he fears damage to his own . reg. of writs , fol. . in which case , the civilians have the action de damno infacto . donative ( donativum ) is a benefice meerly given and collated by the patron to a man , without either presentatiou to , or institution by , the ordinary , or induction by his command . fitz. nat. br. fol. . e. see the stat. rich. . c. . and where a bishop hath the gift of a benefice , it is properly called a donative , because he cannot present to himself . petrus gregorius , de beneficiis , cap. . num . . hath these words . — if chappels founded by laymen , were not approved by the diocesan , and ( as they term it ) spiritualized , they are not accounted benefices , neither can they be conferred by the bishop , but remain to the pious disposition of the founders ; wherefore the founders and their heirs , may give such chappels , if they will , without the bishop . gwin in the preface to his readings , saith , that the king might of ancient time , found a free-chappel , and exempt it from the jurisdiction of the diocesan : so also may he , by his letters patent , give licence to a common person to found such a chappel , and make it donative , not presentable ; and that the chaplain shall be deprivable by the founder , or his heir , and not by the bishop , which seems to be the original of donatives in england . fitzherbert saith , fol. . that there are some chantries which a man may give by his letters patent . all bishopricks were , in ancient time , donative by the king. coke , lib. . fol. . donor , is he who gives lands or tenements to another in tail ; and donee is he to whom the same are given . doom ( sax. dom ) a judgment , sentence , ordinance , or decree ; also sence or signification . substantiva quaedam ( says mr. somner ) exeunt in dom , ubi compositionis gratia videtur appositum , & quandoque munus denotat vel officium , item ditionem & dominium , ut in kingdom , earldom , &c. — habeat grithbriche & forstal , & dom , & som , & wreche in mari. mon. angl. . par . fol. . a. dorture ( dormitorium ) is the common room or chamber where all the religious of one convent slept and lay all night . anno hen. . cap. . dote assignanda , is a writ that lay for a widow , where it was found by office , that the kings tenant was seised of tenements in fee or fee-tail , at the day of his death ; and that he held of the king in cheif , &c. in which case , the widow came into the chancery , and there made oath , that she would not marry without the kings leave . anno edw. . cap. . and hereupon she had this writ to the escheator , for which , see reg. of writs , fol. . and fitz. nat. br. fol. . these widows are called the kings widows . see widow . dote unde nihil habet , is a writ of dower that lies for the widow , against the tenant , who bought land of her husband in his life time , whereof he was solely seised in fee-simple or feetail , in such sort , as the issue of them both might have inherited . fitz. nat. br. fol . dotis admensuratione . see admeasurement , and reg. of writs , fol. . doubles ( anno hen. . cap. . ) signifie as much as letters patent , being a french word made of the latin diploma . double plea ( duplex placitum ) is that wherein the defendant alleageth for himself two several matters , in bar of the plaintiffs action , whereof either is sufficient to effect his desire , which shall not be admitted for a plea. as , if a man alleage several matters , the one nothing depending upon the other , the plea is accounted double , and not admittable ; but , if they be mutually depending each of other , then is it accounted single . kitchin , fol. . see brook , hoc tit . and sir tho. smith gives this reason why such double plea , is not admitted by our law ; because the tryal is by twelve rude men , whose heads are not to be troubled with over many things at once . lib. . de rep. angl. cap. . domus conversorum . see rolls . domus dei , the hospital of s. julian in southampton , so called . mon. angl. par . fol. . b. double duarrel ( duplex querela ) is a complaint made by any clerk , or other , to the archbishop of the province , against an inferior ordinary , for delaying justice in some cause eccsesiastical ; as to give sentence , institute a clerk presented , or the like ; and seems to be termed a double quarrel , because it is most commonly made against both the judge and him , at whose sute justice is delayed . cowels interp. dowager ( dotata ) a widow endowed , or that hath a jointure ; a title or addition , applied in general to the widows of princes , dukes , earls , and persons of honor onely . dower ( dos & dotarium ) the first ( dos ) properly signifies that which the wife brings her husband in marriage , otherwise called maritagium , marriage goods . the other , ( dotarium or doarium ) that portion of lands or tenements , which she hath for term of her life from her husband , if she out-live him . glanvile , lib. . cap. . bracton , lib. . cap. . britton , cap. . in princip . some authors have for distinction , called the first a dowry , and the other a dower , but they are often confounded . of the former our law-books speak little , of the later , there are five kindes , viz. . dower per legem communem . dower per consuetudinem . . dower ex assensu patris . . dower ad ostium ecclesiae . . dower de la plus bele . dower by the common law , is a third part of such lands , as the husband was sole seised of in fee , during the marriage , which the wife is to enjoy , during her life ; for which , there lies a writ of dower . dower by custom , gives the wife , in some places , half her husbands lands , so long as she lives sole , as in gavelkind : and as custom may enlarge , so may it abridge dower , and restrain it to a fourth part . ex assensu patris , ad ostium ecclesiae , the wife may have so much dower , as shall be so assigned or agreed upon , but it ought not to exceed a third part of the husbands lands . glanv . lib. . cap. . and if it be done before marriage , it is called a joynture . dower de la plus bele , is when the wife is endowed of the fairest , or best part of her husbands estate . see coke on littl. fol. . b. romanis non in usu fuit uxoribus dotes retribuere , ideo verbo genuino carent quo hoc dignoscitur ; & rem ipsam in germanorum moribus miratur tacitus . dotem . ( inquit ) non uxor marito , sed uxori maritus affert . spelm. to the consummation of dower three things are necessary , viz. marriage , seizin , and the husbands death . binghams case , rep. if the wife be past the age of nine years at the death of her husband , she shall be endowed ; if a woman elope , or go away from her husband with an adulterer , and will not be reconcil'd , she loseth her dower , by the stat. of westm . . ca. . part inst . fol. . camden ( in his brit. tit . sussex , ) relates this memorable case , ( out of the parl. records , edw. . ) sir john camois , son of the lord raph camois , of his own free-will gave and demised his own wife margaret , daughter and heir of john de gaidesden , unto sir will. panell knight ; and , unto the same william , gave , granted , released , and quit-claimed all her goods and chattels , &c. so that neither he himself , nor any man else in his name , might make claim , or ever challenge any interest in the said margaret , or in her goods or chattels , &c. by which grant , when she demanded her dower in the mannor of torpull , part of the possessions of sir john camois her first husband , there grew a memorable sute in law , but wherein she was overthrown , and judgment pronounced , that she ought to have no dower from thence● , upon the stat. of westm . . quia recessit a marito suo in vita sua , & vixit ut adultera cum praedicto guilielmo , &c. this case is cited also in inst . fol. . of dower read fleta , who writes largely and learnedly of it , lib. . ca. . & seq . — among the jews , the bridegroom , at the time of the marriage , gave his wife a dowry bill , the form whereof you may see in moses and aaron , pa. . dozein , ( decenna , ) in the stat. for view of frankpledge , made ed. . one of the articles for stewards in their leets to enquire of , is ; if all the dozeins be in the assize of our lord the king , and which not , and who received them . art. . see deciners . also there is a sort of devonshire kersies , called dozens . anno & ed. . ca. . drags . anno hen. . ca. . seem to be wood or timber , so joyned together , as that , swimming or floating upon the water , they may bear a burden or load of other wares down the river . drawlatches . anno edw. . ca. . and rich. . ca. . lamb. ( in his eiren. lib. . ca. . ) calls them miching thieves ; as wasters and roberds-men , mighty thieves ; saying the words are grown out of use . dreit-dreit , signifies a double-right , that is , jus possessionis & jus dominii . bracton lib. . ca. . and lib. . tract . . ca. . and lib. . tract . . ca. . coke on litt. fol. . drenches , or drenges , ( drengi ) were tenentes in capite , sayes an ancient m. s. domesday tit. lestrese . roger. pictaviens . neuton . hujus manerii aliam terram homines quos drenches vocabant , pro maneriis tenebant . they were ( sayes spelman , ) e genere vassallorum non ignobilium , cum singuli qui in domesd . nominantur singula possiderent maneria . such as at the coming in of the conqueror , being put out of their estates , were afterward , upon complaint unto him , restored thereunto ; for that they being before owners thereof , were neither in auxilio or consilio against him : of which number was sharneburne of nōrfolk . sir edward coke , on littl. fol . b. sayes , dreuchs are free-tenants of a mannor : misprinted doubtless for drenches . in cukeney manebat quidam homo , qui vocabatur gamilbere ; & fuit ver us dreynghe ante conquestum , tenuit duas carucatas terrae de domino rege in capite , pro tali servicio , de ferrando palefridum dom. regis super quatuor pedes de cluario dom. regis , quotiescunque ad manerium suum de mansfeld jacuerit , & si inclaudet palefridum domini regis , dabit ei palefridum quatuor mercarum . mon. angl. . p. fol. . a. drengage , ( drengagium , vel servitium drengarii , ) the tenure by which the drenches held their lands , of which see trin. ed. . ebor. & nortbumb . rot. . notandum est , eos omnes eorumve antecessores , qui e drengorum classe erant , vel per drengagium tenuere , sua incoluisse patrimonia ante adventum normannorum . spelm. drie exchange , ( anno hen. . ca. . ( cambium siccum , ) seems to be a cleanly term , invented for the disguising foul usury ; in which something is pretended to pass on both sides , whereas in truth nothing passeth but on the one side , in which respect it may well be called dry. of this lud. lopes tract . de contract . & negotiat . lib. . ca. . sect. deinde postquam , writes thus , cambium est reale vel siccum ; cambium reale dicitur , quod consistentiam veri cambii realem habet , & cambium per trans , & cambium minutum . cambium autem siccum est cambium non habens existentiam cambii , sed apparentiam ad instar arboris exsiccatae , quae humore vitali jam carens , apparentiam arboris habet , non existentiam . drie rent , rent seck . see rent . drift of the forest , ( agitatio animalium in foresta , ) is an exact view , or examination , what cattel are in the forest , that it may be known whether it be over . charged or not , and whose the beasts are ; and , whether they are commonable beasts &c. when , how often in the year , by whom , and in what manner this drift is to be made , see manwood , part. . ca. . and inst . fol. . drinklean , ( sax. drinc-lean , ) in some records written potura drinklean ; is a contribution of tenants towards a potation , or an ale provided to entertain the lord , or his steward ; a scot-ale . drofdennes , — quod dominus debet habere drofdennes arbores de crescentia xl . annorum & infra . kane . pasch . edw. . quaere . drofdenn , ( among our saxons ) signified a grove , or woody place , where cattel were kept ; and , the keeper of them was called drofman . drofland , or dryfland , ( from the sax. dryfene . i. driven , ) was antiently a quit-rent , or yearly payment made by some tenants to their landlords , for driving their cattel through the mannor to faires and markets . mr. philips mistaken recompence , fol. . droit , , ( french , droict , ) in law there are six kinds of it , viz. . jus recuperandi . . jus intrandi . . jus habendi . . jus retinendi . . jus percipiendi . . jus possidendi . all these several sorts of rights , following the relations of their objects , are the effects of the civil law. vide coke on littl , fol. & . b. — of meer droit , and very right . anno h. . ca. . droit de advowzen . see recto de advocatione ecclesiae . droit close . see recto clausum . droit de dowre . see recto dotis . droit sur disclaimer . see recto sur disclaimer . droit patent . see recto patens and calthrops rep. fol. . duces tecum , is a writ , commanding one to appear at a day in the chancery , and to bring with him some evidences , or other thing which the court would view . which is also granted , where a sheriff , having in his custody a prisoner in an action personal , returns , upon a habeas corpus , that he is adeo languidus , that , without danger of death , he cannot have his body before the justices . see new book of entries on this word . duell , ( duellum , according to fleta , ) est singularis pugna inter duos ad probandam veritatem litis , & qui vicerit , probasse intelligitur , &c. stat. de finibus levatis , edw. . the trial by duel , combat , or campfight , in doubtful cases is now difused , though the law on which it was grounded be still in force . see part. inst . fol. . and see combat . per libertatem habere duellum , johannes stanley ar. clamat , quod si aliquis placitaverit aliquent de libero tenemento in curia sua de aldford per breve domini comitis de recto patent . tenere & terminare praedictum placitum per duellum , prout jus est per communem legem . plac. in itin. apud cestriam . . hen. . stephanus de nerbona omnibus — sciatis me dedisse willielmo filio radulphi de filungele pro homagio & servicio suo , & propter duellum quod fecit pro me , — duas virgatus terrae , — sine dat. m. s. penes will. dugdale , ar. duke , ( lat. dux , fr. duc , ) signified among the ancient romans , ductorem exercitus , such as led their armies ; since which they were called duces , to whom the king committed the custody or regiment of any province . in some nations at this day the soveraigns of the country are called by this name , as duke of russia , duke of savoy , &c. in england duke is the next in secular dignity to the prince of wales ; and , ( as camden says , ) heretofore in the saxons time , were called dukes , without any addition , being ineer officers and leaders of armies . after the conqueror came in , there were none of this title till edward the thirds dayes , who made edward his son duke of cornwal , after which there were more made , in such sort , as their titles descended to their posterity ; they were created with solemnity per cincturam gladii , cappaeque & circuli aurei in capite impositionem . vide cam. britan. p. . zazium de feudis , pa. . num. . cassan . de consuetud . burg. pa. & . and ferns glory of generosity , pa. . dutchy-court , is a court wherein all matters appertaining to the dutchy , or county-palatine of lancaster are decided by the decree of the chancelor of that court ; the original of it was in henry the fourths days , who , obtaining the crown by deposing richard the second , and having the dutchy of lancaster by descent , in right of his mother , was seized thereof as king , and not as duke ; so that all the liberties , franchises and jurisdictions of the said dutchy passed from the king by his great seal , and not by livery or atturnement , as the possessions of everwick , the earldom of march , and such others did , which had descended to the king by other ancestors then the kings ; but , at last , henry the fourth , by authority of parliament , passed a charter , whereby the posessions , liberties , &c. of the said dutcky were sever'd from the crown ; yet henry the seventh reduced it to its former nature , as it was in henry the fifths days . crom. jur. fol. . the officers belonging to this court , are , the chancellour , atturney , receiver-general , clerk of the court , messenger : besides which , there are certain assistants , as one atturney in the exchequer , one atturney of the dutchy in chancery , four persons learned in the law , retained of councel with the king in the said court ; whereof gwin ( in preface to his readings , ) speaks thus ; it grew out of the grant of king edward the third , who gave that dutchy to his son john of gant , and endowed it with such royal right , as the county palatine of chester had . and , for as much as it was afterward extinct in the person of king henry the fourth , by reason of the union of it with the crown , the same king ( suspecting himself to be more rightfully duke of lancaster , then king of england , ) determined to save his right in the dutchy , whatever should befall the kingdom ; and therefore he separated the dutchy from the crown , and setled it so in the natural persons of himself and his heires , as if he had been no king or politic body at all ; in which condition it continued , during the reign of henry the fifth , and henry the sixth , that descended from him , but , when henry the fourth had , ( by recovery of the crown , ) recontinued the right of the house of york , he feared not to appropriate that dutchy to the crown again ; yet so , that he suffer'd the court and officers to remain as he found them ; in which manner it came , together with the crown , to henry the seventh , who , liking well of henry the fourths policy , ( by whose right also he obtained the kingdom , ) made a like separation of the dutchy , and so left it to his posterity , who still injoy it . cowel . dum fuit infra aetatem , is a writ , which lies for him , ( who , before he came to full age , made a feoffment of his land , ) to recover it again from the vendee . fitz. nat. br. fol. . dum non fuit compos mentis , he , who being not of found memory , and aliens any lands or tenements , may have this writ against the alience . fitz. nat. brev. fol. . duplicat , is used by crompton for a second letters patent , granted by the lord chancellour , in a case wherein he had formerly done the same , and was therefore thought void . crom. jurisd . fol. . also a second letter written and sent to the same party and purpose , as a former , for fear of a miscarriage of the first , or for other reason , is called a duplicat . the word is used car. . ca. . duress , ( duritia , ) is , where one is kept in prison , or restrained of his liberty , contrary to the order of law ; or threatned to be kill'd , maym'd , or beaten : and , if such person , so in prison , or in fear of such threats , make any specialty , or obligation , by reason of such imprisonment , or threats , such deed is void in law : and , in an action brought upon such specialty , the party may plead , that it was made by duresse ; and so avoid the action . broke in his abridgment joyneth dures and manasse together . i. duritiam & minas ; hardship , and threatnings . dyke-reeve , a bailiff , or officer , that has the care and over-sight of the dykes and draines in deeping-fens , &c. mentioned anno & car. . ca. . e. ealderman , or ealdorman , ( aldermannus ) among the saxons , was as much as earl among the danes . cam. britan. pa. . also , an elder , senator or states-man ; and , at this day we call them aldermen , who are associates to the chief officer in the common-councel of a city , or borough-town . h. . ca. . sometimes the chief officer himself is so called . see alderman . earl , ( sax. eorl , comes , ) this title , in ancient times , was given to those , who were affociates to the king in his councels , and martial-actions ; and , the manner of their investiture into that dignity , was , por cincturam gladio comitatus ; without any formal charter of creation . see mr. dugdales warwickshire , fol. . but , the conquerour , ( as camden notes ) gave this dignity , in fee , to his nobles , annexing it to this or that county , or province ; and , allotted them , for their maintenance , a certain proportion of money arising from the princes profits , for the pleadings , and forfeitures of the provinces : for example , he brings an ancient record in these words ; henricus . rex angliae , bis verbis comitem creavit ; sciatis nos fecisse hugonem bigot comitem de norf. &c. de tertio denario de norwic. & northfolk ; sicut aliquis comes angliae liberius comitatum suum tenet . about the reign of king john , and ever since , our kings have made earles by their charter , of this or that county , province , or city ; but , of late , giving them no authority over the county , nor any part of the profits arising by it ; onely some annual fee out of the exchequer , &c. the manner of their creation is , by girding them with a sword. cam. pa. . but , see the solemnity described more at large in stowes annals , pa. . their place is next to a marquess , and before a viscount . comitatus a comite dicitur , aut vice versa . see more on this subject in spelmans gloss . verbo comites ; and in seldens titles of honour , fol. . and see countee . easement , ( aisiamentum , from the french , aise . i. commoditas , ) is a service , or convenience , which one neighbour has of another by charter , or prescription , without profit ; as , a way through his ground , a sink , or such like , kitchin , fol. . whioh , in the civil-law is called servitus praedii . — praecipias r. quod juste & sine dilatione permittat habere h. aisimenta sua in bosco & in pastura de villa illa , &c. breve regium vetus , apud glanvil . lib. . ca. . eberemurder , ( sax. ebere-mord . ) apertum murdrum ; was one of those crimes , which , by henry the firsts laws , ca. . emendari non possunt . hoc ex scelerum genere fuit , nullo pretio , ( etiam apud saxones nostros , ) expiabilium , cum alia licuit pecuniis commutare . spelman . ecclesia , ( lat. ) is most used for that place where almighty god is served , commonly called a church . but fitz. sayes , by this word ecclesia , is meant onely a parsonage ; and therefore , if a presentment be made to a chappel , as to a church , by the name eoclesia , this does change the nature of it , and makes it presently a church . nat. br. . when the question was , whether it were ecclesia aut capella pertinens ad matricem ecclesiam ; the issue was , whether it had baptisterium & sepulturam : for , if it had the administration of sacraments and sepulture , it was in law judged a church . trin. edw. . in banco , rot. . inst . fol. . ecclesiastical persons , are , either regular , or secular ; regular are such as lead a monastical life , under certain rules ; and , have vowed obedience , perpetual chastity , and wilfal poverty : when a man is professed in any of the orders of religion , he is said to be a man of religion , a regular , or religious ; of this sort are abbots , priors , monks , friers , &c. secular are those , whose ordinary conversation is among men of the world , and profess the undertaking the charge of souls , and live not under the rules of any religious order ; such , are bishops , parish-priests , &c. eele fares , alias eele vare , ( anno . . h. . ) the fry , or brood of eeles . effractores , ( lat. ) burglars , that break open houses to steal . qui furandi causa domos effringunt , vel se 〈◊〉 carcere proripiunt ; etiam qui scrinia expoliant . ms. egyptians , ( aegyptiani ) are , in our statutes , a counterfeit kind of rogues ; who , being english or welsh people , disguise themselves in strange habits , smearing their faces and bodies , and framing to themselves an unknown canting language , wander up and down ; and , under pretence of telling fortunes , curing diseases , and such like , abuse the common-people , by stealing all that is not too hot , or too heavy for their carriage . anno & phil. & ma. ca. . anno eliz. ca. . these are like those whom the italians call cingari . ejectione custodiae , ejectment de gard , is a writ , which lay properly against him that did cast out the gardian from any land , during the minority of the heir . reg. of writs , fol. . fitz. nat. br. fol. . there are two other writs not unlike this , the one termed droit de gard , or , right of gard ; the other ravishment de gard , which see in their places . ejectione firmae , is a writ , which lies for the lessee for years , who is ejected before the expiration of his term , either by the lessor , or a stranger . reg. of writs , fol. . fitz. nat. br. fol. . see quare ejecit infra terminum , and new book of entries , verbo ejectione firmae . eigne , ( french , aisne , ) eldest , first-born . as bastard eigne & mulier puisne . litt. sect. . see mulier . einecia , ( borrowed of the french , aisne i. primogenitus , ) signifies eldership . stat. of ireland , hen. . of this read skene , verbo eneya . and see esnecy . — eyniciam filiam suam maritare ; to marry his eldest daughter . eire , alias eyre , ( from the old french word erre . i. iter , as a grand erre . i. magnis itineribus , ) signifies the court of justices itinerant ; for justices in eyre are those whom bracton in many places calls justiciarios itinerantes . the eyre of the forest is the justice seat , otherwise called ; which , by ancient custom , was held every three years by the justices of the forest , journying up and down to that purpose . bracton . lib. . tract . . ca. & . britton . ca. . cromp. jur. fol. . manwood par . . pa. . read skene , verbo , iter ; whereby , as by many other places , you may see great affinity between these two kingdoms in the administration of justice and government . see justice in eyre . election , ( electio , ) is , when a man is left to his own free-will , to take or do one thing or another , which he pleaseth . in case an election be given of two several things , he who is the first agent , and ought to do the first act , shall have the election : as if a man make a lease , rendring a rent , or a robe , the lessee shall have the election , as being the first agent , by payment of the one , or delivery of the other . coke on litt. pa. . b. election de clerk , ( electione clerici ) is a writ that lies for the choice of a clerk , assigned to take and make bonds , called statute-merchant ; and is granted out of the chancery , upon suggestion , that the clerk formerly assigned is gone to dwell in another place , or hath impediments to follow that business , ; or , not land sufficient to answer his transgression , if he should deal amiss , &c. fitz , nat. br. fol. . elegit , ( from the words in it elegit sibi liberari , ) is a writ judicial , and lies for him that hath recover'd debt or damages , or upon a recognizance in any court , against one not able in his goods to satisfie , and directed to the sheriff , commanding him to make delivery of half the parties lands , and all his goods ; oxen and beasts for the plough excepted . old. nat. br. fol. . reg. of writs , fol. , and . and the table of the reg. judicial , wh●ch expresseth divers uses of this writ . the creditor shall hold the moity of the said land so delivered to him , till his whole debt and dammages are satisfy d ; and , during that term he is tenant by elegit . westm . . cap. . see coke on litt. fol. . b. elk , a kind of ewe to make bows , anno hen. . ca. . eloine , ( from the french , esloigner ; to remove , banish , or send a great way from , ) — if such as be within age be eloined , so that they cannot sue personally , their next friends shall be admitted to sue for them . anno edw. . ca. . elopement , is , when a marryed woman of her own accord departs from her husband , and lives with an adulterer ; whereby , without voluntary submission , or reconcilement to her husband , she shall lose her dower , by the stat. of westm . . ca. . according to this old dystich , sponte virum mulier fugiens , & adultera facta , dote sua careat , nisi sponso sponte retracta . a woman , thus leaving her husband , is said to elope , and her husband in this case shall not be compell'd to allow her any alimony . see alimony . i am perswaded the word is taken from the saxon geleowan . i. to depart from one place to dwell in another , the saxon w being easily mistaken for a p. emblements , ( from the french , embl●vence de bled . i. corn sprung , or put up above ground , ) signifies strictly the profits of land which has been sowed ; but , the word is sometimes used more largely , for any profits that arise and grow naturally from the ground , as grass , fruit , hemp , flax , &c. if tenant for life sow the land and die , his executor shall have the emblements , and not he in reversion ; but , if tenant for years sow the land , and before severance the term expires , there the lessor , or he in reversion shall have the emblements , and not the lessee . vide coke . lib. . fol. . embraceor , ( anno hen. . ca. . ) is he , that , when a matter is in trial between party and party , comes to the bar with one of the parties , ( having receiv'd some reward so to do , ) and speaks in the case , or privately labors the jury , or stands there to survey , or over-look them , whereby to awe , or put them in fear . the penalty whereof is l. and imprisonment at the justices discretion , by the said statute . embracery , is the act or offence of embraceors . to instrnct the jury , or promise reward for , or before appearance , is embracery . noys rep. fol. . embre , or embring-dayes , ( anno & edw. . ca. . ) are those , which the ancient fathers called quatuor tempora , and are of great antiquity in the church , being observ●d on wednesday , friday and saturday next after quadragesima sunday , whitsunday , holy-rood day in september , and st. lucy's day in december ; and , are so called from the saxon ymb-ren . i. cursus vel circulus ; because constantly observ'd at set seasons in the course or circuit of the year . they are mention'd by britton , ca. . and others . in part. inst . fol. . it is said , these embring dayes are the week next before quadragesima , which is a great mistake . emendals , ( emenda , ) is an old word , still used in the accounts of the inner-temple ; where , so much in emendals at the fcot of an account , signifies so much in the bank or stock of the house , for reparation of losses , or other emergent occasions ; quod in restaurationem damni tribuitur , says spelman . empanel , ( ponere in assisis & juratis , ) signifies the writing and entring the names of a jury into a parchment schedule , or roll of paper , by the sheriff , whom he has summon'd to appear for the performance of such publick service , as juries are employ'd in . see panel . emparlance , ( from the french , parler , to speak , ) signifies a desire or petition in court of a day to pause , what is best to do ; ( the civilians call it , petitionem induciarum . ) kitchin , ( fol. . ) says , if he imparl , or pray continuance , &c. where praying continuance is spoken interpretatively ; and fol. . mentions imparlance general and special ; the first seems to be that , which is made onely in one word , and in general terms : emparlance special , where the party requires a day to deliberate ; adding also these words , saluis omnibus advantagiis tam ad jurisdictionem curiae , quam ad breve & narrationem — or such like . britton useth it for the conference of a jury upon the cause committed to them , ca. . see imparlance . encheson , ( french , ) signifies occasion , cause , or reason , wherefore any thing is done . ed. . ca. . see skene in hoc verbum . encroachment , or accroachment , ( fr. accrochement . i. a grasping , or hooking , ) signifies an unlawful encroaching , or gathering in upon another man ; as , if two mens grounds lying together , the one presseth too far upon the other ; or , if a tenant owe two shillings rent-service , and the lord exacts three . so hugh and hugh spencer encroached unto them royal power and authority . anno edw. . in proaem . enditement , ( indictamentum , from the french , enditer . i. deferre nomen alicujus , ) is a bill or declaration drawn in form of law , for the benefit of the common-wealth , and exhibited by way of accusation against one for some offence , either criminal or penal , and preferred unto jurors , and , by their verdict found , and presented to be true before a judge or officer that has power to punish , or certifie the offence . an inditement is alwayes at the sute of the king , and differs from an accusation in this , that the preferrer of the bill is no way tied to the proof of it , upon any penalty , except there appear conspiracy . see stamf. pl. cor. lib. . ca. . usque . enditements of treason , and of all other things ought to be most curiously and certainly penned . coke . . rep. calvins case . the day , year and place must be put in . see the stat. hen. . ca. . and part. inst . fol. . endowment , ( dotatio , ) signifies the bestowing or assuring of a dower . see dower . but , it is sometimes used metaphorically , for the setting forth or severing a sufficient portion for a vicar towards his perpetual maintenance , when the benefice is appropriated . see appropriation , and the stat. rich. . ca. . endowment de la plus belle part , is , where a man dying seized of some lands holden in knights-service , and other some in soccage , the widow is sped of her dower , in the lands holden in soccage , as being the fairer or better part . of which see lattleton at large , lib. . cap. . enfranchise , ( french , enfranchir , ) to make free , to incorporate a man into any society or body politic , to make one a free denizen . enfranchisement , ( french , ) signifies the incorporating a man into any society or body politick ; for example , he that by charter is made denizen of england , is said to be enfranchised ; and so is he that is made a citizen of london , or other city , or burgess of any town corporate ; becaufe he is made partaker of those liberties that appertain to the corporation , whereinto he is enfranchised . so a villain was enfranchised , when he was made free by his lord. englecerie , englecherie , or engleschyre ( engleceria ) is an old abstract word , signifying the being an englishman . for example , if a man were privily slain or murdered , he was in old time accounted francigena , ( which comprehended every alien , especially danes ) until englecerie was proved , that is , until it were made manifest , that he was an englishman . bracton , lib. . tract . . cap. . num . . this englecery ( for the abuses and troubles that afterward were perceived to grow by it ) was absolutely taken away , by stat. edw. . cap. . enheritance . see inheritance . enitia pars . see esnecy . enquest , fr. ( lat. inquisitio ) is especially , taken for that inquisition of jurors , or by jury , which is the most usual tryal of all causes , both civil and criminal in this realm . for in causes civil , after proof is made on either side , so much as each party thinks good for himself , if the doubt be in the fact , it is referred to the discretion of twelve indifferent men , impannelled by the sheriff for the purpose ; and as they bring in their verdict , so judgment passeth : for the judge saith , the jury findes the fact thus , then is the law ( if their verdict do not contradict it ) thus , and so we judge . as to the enquest in causes criminal , see jury , and see sir tho. smith de repub . angl. lib. . cap. . an enquest is either of office , or at the mise of the party . stamf. pl. cor. lib. . cap. . entail ( feudum talliatum , fr. entaille , i. inscisus . ) is a substantive abstract , signifying fee-tail or fee entailed ; that is abridged , curtailed , or limited , and tied to certain conditions . see fee and tail. entendment ( fr. entendement ) signifies as much as the true meaning , intent , or signification of a word , sentence , law , &c. see kitchin , fol. . see intendment . enterplede ( fr. entreplaider ) signifies to discuss or try a point incidently falling out , before the principal cause can be determined . for example , two persons being found heirs to land by two several offices in one county , the king is brought in doubt , to which of them , livery ought to be made ; therefore before livery be made to either , they must enterplede , that is formally try between themselves , who is the right heir . stamf. praerog . cap. . see broke tit . enterpleder . entiertie or intiertie ( from the fr. entierete , 〈◊〉 . entireness ) the whole : contradistinguished in our books to moity . entire tenancy , is contrary to several tenancy , and signifies a sole possession in one man , whereas the other signifies a joynt or common one in more . see broke several tenancy . see new book of entries , verbo entier-tenancy . entrie ( fr. entree , i. introitus , ingnessus ) properly signifies the taking possession of lands or tenements . see plowden , assize of freshforce in london , fol. . b. it is also used for a writ of possession , for which see ingressu ; and read west , pa. . symbol . tit . recoveries , sect . , . who there shews for what it lies , and for what not . of this britton in his chapter writes to this effect . the writs of entry savor much of the right of property . as for example , some are to recover customs and services , in which are contained these two words ( solet & debet ) as the writs quo jure , rationabilibus divisis , rationabili estoverio , with such like . and in this plee of entry there are three degrees : the first is , where a man demands lands or tenements of his own seisin , after the term expired ; the second is , where one demands lands or tenements , let by another , after the term expired ; the third , where one demands lands or tenements of that tenant , who had entry by one , to whom some ancestor of the plaintiff did let it for a term now expired . according to which degrees , the writs , for more fit remedy , are varied . and there is yet a fourth form , which is without degrees , and in case of a more remote seisin , whereunto the other three degrees do not extend . the writ in the second degree is called a writ of entry in le per ; in the third degree , a writ of entry in le per & cui ; and in the fourth form without these degrees , it is called a writ of entry in le post ; that is , after the disseisin , which such a one made to such a one . and if any writ of entry be conceived out of the right case , so that one form be brought for another , it is abateable . in these four degrees , are comprehended all manner of writs of entry , which are without certainty and number . thus far britton , by whom you may perceive , that those words solet & debet , and those other , in le per , in le per & cui , and in le post , which we meet with many times in books shortly and obscurely mentioned , signifie nothing else but divers forms of this writ , applied to the case , whereupon it is brought , and each form taking its name from the words contained in the writ . and of this read fitz. nat. br. fol. . this writ of entry differs from an assize , because it lies for the most part against him , who entred lawfully , but holds against law ; whereas an assize lies against him that unlawfully disseised ; yet sometimes a writ of entry lies upon an entrusion . reg. of writs , fol. . b. see the new book of entries , verbo entre br●vis , fol. . col . . there is also a writ of entry in the nature of an assize . of this writ , in all its degrees , see fleta , lib. . cap. . & seq . entrusion ( intrusio ) is a violent or unlawful entrance into lands or tenements ( void of a possossor ) by him that hath no right at all to them . bracton , lib. . cap. . for example , a man steps into lands , the owner whereof lately died , and the right heir , neither by himself or others , hath as yet taken possession of them . see the difference between abator and intrudor , in coke on littl. fol. . though the new book of entries , fol. . c. latines abatement by this word intrusionem . see abatement , see disseisin , and britton , cap. . entrusion is also taken for the writ brought against an intrudor , which see in fitz. nat. br. fol. . entrusion de gard , is a writ , that lies , where the infant within age , entred into his lands , and held his lord out . for in this case , the lord shall not have the writ de communi custodia , but this . old nat. br. fol. . envoice . see invoice . enure , signifies to take place or effect , to be available . example , a release shall enure by way of extinguishment . littleton , cap. release . and a release , made to a tenant for term of life , shall enure to him in the reversion . eques auratus ( lat. ) a knight , so called , because anciently it was lawful for knights onely to beautifie and gild their armor , and caparisons for their horses with gold. fern's glory of generosity , pag. . eques auratus is not used in law ; but chivalier or miles . cokes inst . fol. . equity ( equitas ) is the correction or qualification of the law , generally made , in that part wherein it faileth , or is too severe . for , ad ea quae frequentiùs accidunt jura adaptantur : as , where an act of parliament is made , that whosoever does such a thing , shall be a felon , and suffer death , yet if a mad-man , or an infant of tender years do the same , they shall be excused . breaking of prison , is felony , in the prisoner himself , by the statute de frangentibus prisonam ; yet if the prison be on fire , and they within break prison to save their lives ; this shall be excused by the law of reason . so to save my life , i may kill another that assaults me . erminstréet . see watlingstreet . errant ( errans ) is attributed to justices of circuit . pl. cor. fol. . and bailiffs at large . see justices in eyre , and bailiff . see eyre . errour ( error ) signifies more specially an error in pleading , or in the proces . ( broke , tit . errour . ) whereupon , the writ , which is brought for remedy of this over-sight , is called a writ of error , in latin , de errore corrigendo , thus defined by fitz. nat. er. fol. . a writ of error doth also lie to redress false judgment given in any court of record , as in the common bench , london , or other city , having power ( by the kings charter , or prescription ) to hold plea of debt or trespass above xxs. this is borrowed from the french practice , which they call proposition d'erreur ; whereof you may read in gregorius de appell . pag. . in what diversity of cases this writ lies , see the statute of eliz. cap. . r●g . of writs in the table , and reg. judicial , fol. . there is likewise a writ of error to reverse a fine , west , par . . symbol . tit . fin●s , . new book of entries , verbo error . for preventing abatements of writs of error upon judgments in the exch●qu●r , see car. . cap. . and ejusdom , cap. . and for redressing and prevention of error in fines and recoveries , the statute of eliz. cap. . for inrolling them . errore corrigendo . see error . escambio ( from the span. cambiar , to change ) is a licence granted to one , for the making over a bill of exchange to another over sea. reg. of writs , fol. . a. for by the statute of rich. . cap. . merchant ought to exchange , or return money beyond sea without the kings license . escape ( from the fr. eschapper , i. effugere ) signifies a violent or privy evasion out of some lawful restraint . for example , if the sheriff , upon a capias directed to him , take one , and endeavor to carry him to the goal , and he by the way , either by violence or slight , breaks from him ; this is called an escape . stamf. ( lib. . cap. & . pl. cor. ) names two kindes of escape ; voluntary and negligent . voluntary , is when one arrests another for felony , or other crime , and afterward lets him go : in which eseape , the party that permits it , is by law guilty of the fault committed by him that escapes , be it felony , treason , or trespass . negligent escape is , when one is arrested , and afterward escapes against his will that arrested him , and is not pursued by fresh suit , and taken again , before the party pursuing hath lost the sight of him . read cromptons justice , fol. . eschange or exchange ( escambium ) — hanc terram cambiavit hugo briccuino quod modo tenet comes moriton , & ipsum scambium valet duplum . domesday . see exchange . escheat ( esehaeta , from the fr. escheoir , i. cadere , accidere ) signifies any lands , or other profits , that casually fall to a lord within his mannor , by way of forfeiture , or by the death of his tenant , leaving no heir general nor special ; mag. charta , cap. . fitz. nat. br. fol. . t. escheat is also used sometimes for the place or circuit , in which the king or other lord hath escheats of his tenants . bracton , lib. . tract . . cap. . pupilla ocull par . . cap. . escheat ( thirdly ) is used for a writ , which lies , where the tenant having estate of fee-simple in any lands or tenements holden of a superior lord , dies seised without heir general or special : in which case the lord brings this writ against him that possesseth the lands , after the death of his tenant , and shall thereby recover the same in lieu of his services . fitz. nat. br. fol. . in the same sence , as we say , the fee is escheated , the feudists use feudum aperitur . see coke on littl. fol. . b. escheator ( escaetor ) was an officer ( appointed by the lord treasurer ) who observed the escheats due to the king in the county , whereof he was escheator and certified them into the chancery or ex●hequer , and found offices after the death of the kings tenants , which held by knights-service in capite , or otherwise by knights-service ; he continued in his office but one year , nor could any be escheator above once in three years , anno h. . cap. . & ejusdem , cap. . see more of this officer , and his authority , in crom. just . of peace . fitzberbert calls him an officer of record , nat. br. fol. . because that which he certified by vertue of his office , had the credit of a record . officium escaetriae , is the escheatorship . reg. of writs , fol. . b. this office , having its cheif dependence on the court of wards , is now , in a manner , out of date . see inst . fol. . escbequer ( scaccarium , from the fr. eschequier , i. abacus , tabula lusoria ) is a court of record , wherein all causes touching the revenue of the crown , are heard and determined , and wherein the revenue of the crown is received . pol virgil , lib. . hist . angl. says , the true word in latin is statarium , and by abuse called scaccarium . camden in his britan . pa. . saith , this court , or office , took name a tabula ad quam assidebant , the cloth which covered it , being parti-coloured or chequered . we had it from the normans , as appears by the grand custumary , cap. . where it is thus described , the eschequer is called an assembly of high justiciers , to whom it appertains to amend that which the bailiffs , and other inferior justiciers , have misdone , and unadvisedly judged , and to do right to all men without delay , as from the princes mouth . this court consists of two parts , whereof one is conversant , especially in the judicial hearing and deciding all causes pertaining to the princes coffers , anciently called scaccarium computorum ; the other is called the receipt of the exchequer , which is properly employed in the receiving and payment of money . the officers belonging to both these , you may finde named in cam. brit. cap. tribunalia angliae , to whom i refer you . the kings exchequer , which now is setled at westminster , was in divers counties of wales . anno hen. . cap. . & . see orig. juridiciales , fol. . and part. inst . fol. . escuage ( scutagium , from the fr. escu , i. a buckler or shield ) signifies a kinde of knights-service , called service of the shield ; the tenant , holding by it , was bound to follow his lord into the scotish or welsh wars , at his own charge . for which see chivalry . escuage is either uncertain or certain . escuage uncertain , is properly escuage and knights-service , being subject to homage , fealty , and ( heretofore ) ward and marriage ; so called , because it was uncertain how often a man should be called to follow his lord into those wars , and what his charge would be in each journey . escuage certain , is that which yearly pays a certain rent in lieu of all services , being no further bound , then to pay his rent , be it a knights fee , half , or the fourth part of a knights fee , according to the quantity of his land ; and this loseth the nature of knights-service , though it hold the name of escuage , being in effect soccage . fitz. nat. br. fol. . this is taken away and discharged by act of parliament , car. . cap. . see capite . eskippeson . shipping . cesie endenture faite parentre lui noble home mons . thomas beauchamp counte de warwyke d'une parte & john russell escuier d'autre parte , tesmoigne , &c. et que le dit john aura eskypesoun covenable pour son passage & repassage outre meer , as cusiages le dit counte , &c. done a warwyke . jan. edw. . esnecy ( aeisnecia , fr. aisneesse , i. dignitas primogeniti ) is a prerogative allowed the eldest coparcener to chuse first after the inheritance is divided . fleta , lib. . cap. . sect . in divisionem . salvo capitali mesuagio primogenito filio pro dignitate aeisneciae suae . glan● . lib. . cap. . jus esnetiae , i. jus primogeniturae . in the statute of marlbridge , cap. . it is called initia pars haereditatis . see coke on lattl . fol. . b. esples ( expletia , from expleo ) are the full profits , which the ground or land yields , as the hay of the meadows , the feed of the pasture , the corn of the arable , the rents , services , and such like issues . the profits comprised under this word , the romans properly call accessiones . note , that in a writ of right of land , advowson , or such like , the demandant ought to alleage in his court , that he or his ancestors took the esplees of the thing in demand , else the pleading is not good . t. ley. espervarius , and sparverius ( fr. espervier , ) a spar-hawk . char. foresta , cap. . — reddit . solut . willielmo talboys arm. ad manerium suum de kyme pro omnibus serviciis secularibus unum espervarium vel s. per annum ad festum sancti mich. &c. comput . davidis gefferon collect. redd . de wragby . anno hen. . — dicunt quod ricardus de herthall die quo obiit tenuit manerium de poley in com war. in dominico suo ut de feodo per fidelitatem & servitium unius espervarii vel s. ad festum s. jacobi , &c. esc . de anno edw. . num . . esquier , was originally he , who attending a knight in time of war , did carry his shield , whence he was called escuier in french , and scutifer or armiger in latin : howbeit this addition hath not of long time had any respect at all to the office , or employment of the person to whom it hath been attributed , but been meerly a title of dignity ; and next in degree below a knight . those to whom this title is now of right due , are , all the younger sons of noblemen , and their heirs-male for ever : the four esquiers of the kings body ; the eldest sons ot all baronets ; so also of all knights of the bath , and knights batchelors , and their heirs-male in the right line : those that serve the king in any worshipful calling ( to use camdens words ) as the serjeant chirurgeon , serjeant of the ewry , master cook , &c. such as are created esquiers by the king , with a collar of s. s. of silver , as the heraulds and serjeants at ar 〈…〉 the cheif of some ancient families , are likewise esquiers by preseription ; those that hear any superior office in the commonwealth , as high sheriff of any county , who retains the title of esquire during his life , in respect of the great trust he has had , of the posse comitatus ; he , who is a justice of peace has it , during the time he is in commission , and no longer ; if not otherwise qualify'd to bear it : vtter barrasters , in the late acts of parliament for pol-money , were ranked among esquires , and so wete many wealthy men , ( by reason they were commonly reputed to be such , ) and paid accordingly : in walsinghams history of richard the second , we read of one john blake , who is said to be juris apprenticius , and has the addition of scutifer there given him ; but , whether intituled thereto by reason of that his profession , or otherwise , does not appear . see camd. brit. fol. . and inst . fol. . a principe fiunt armigeri vel scripto vel symbolo vel munere . scripto , cum rex sic quempiam constituerit . symbolo , quum collum ergo alicujus argenteo sigmatico ( hoc est torque ex ss confecto ) adornaberit , eumve argentatis calcaribus ( ad discrimen equitum , qui aureis usi sunt ) donavorit . tales in occidentali angliae plaga ( ut aliquando didici in conventu rei antiquae studiosorum ) white spurrs dicti sunt . munere , cum ad munus quempiam evocaverit , vel in aula vel in reipub. armigerō designatum : cujusmodi multa hodie , patribus nostris incognita . inter armigeros qui fiunt ( non nascuntur ) primarii habentur quatuor illi armigeri ad corpus regis ( esquires of the body ; ) quos & equitum filiis primogenitis anteponendos asserunt . thus the learned spel. in whose glossarium you may find mention of another species of esquires , viz. squier born de quater cotes . omnibus — walterus de pavely miles filius quondam reginaldi de pavely salutem . novertitis me obligari rogero marmion filio quondam philippi marmion omnibus diebus vitae suae in una roba cum pellura de secta armigerorum meorum annuatim ad festum nativitatis domini percipiend . sine aliqua contradictione vel retractione mei vel haeredum meorum aut assignatorum . ad quam quidem solutionem robae praedictae cum pellura annuatim ad terminum supradictum fideliter persoluendum obligo me & haredes meos , bona & catalla nostra mobilia & immobilia ubicunque fuerint inventa in maneriis meis in hundredo de westbury existentibus vel extra , &c. sine dat . ex codice m. s. penes gul. dugdale arm. essendi quietum de tolonio , is a writ that lies for citizens and burgesses of any city or town that have a charter or prescription to exempt them from paying toll through the whole realm , if it chance that the same is any where exacted of them . fitz. nat. br. fol. . essoin , ( essonium , from the fr. essonie , or exonnie . i. causarius miles , he that has his presence forborn or excused upon any just cause , as sickness or other impediment , ) signifies an alleadgment of an excuse for him that is summon'd , or sought for to appear and answer to an action real , or to perform sure to a court-baron upon just cause of absence : it is as much as excusatio with the civilians . the causes that serve to essoin any man summon'd , are divers , yet drawn to five heads , whereof the first is ultra mare ; the second , de terra sancta ; the third , de malo veniendi , which is also called the common essoin ; the fourth is de malo lecti ; the fifth de servitio regis . for further knowledge of these , i refer you to glanvile , lib. . bracton . lib. . tract . . per totum . britton , ca. — . and to horns mirror , lib. . ca. des essoins , who mentions some more essoins , touching the service of the king celestial , then the rest do . of these essoins you may read further in fleta , lib. . ca. . & seq . and , that these came to us from the civil-lawes and the normans is well shewed by the grand custumary , where you may find in a manner all that our lawyers say of this matter , ca. . to . essoins and profers , anno hen. . ca. . see profer . essonio de malo lecti , is a writ directed to the sheriff , for sending four lawful knights to view one that has essoined himself de malo lecti . reg. of writs , fol. . b. establishment of dower , seems to be the assurance or settlement of dower , made to th wife by the husband , or his friends , before or at marriage . and assignment is the setting it out by the heir afterwards , according to the establishment . britton . ca. , . estandard , or standard , ( fr. estandart . i. signum , vexillum , ) an ensign for horsemen in war , and is commonly that of the king , or chief general : but , it is also used for the principal or standing-measure of the king , to the scantling whereof all the measures throughout the land , are , or ought to be framed by the clerks of the market , aulneger , and other officers , according to their several offices ; for it was established by magna charta , hen. . ca. . that there should be but one scantling of weights and measures through the whole realm ; which was confirm'd by the. stat. edw . ca. . from henceforth there shall be one weight , one measure , and one yard , according to the standard of the exchequer throughout all the realm . car. . ca. . it is called a standard with good reason , because it stands constant and immoveable , and hath all other measures coming towards it for their conformity , as souldiers in the field have their standard or colours to repair to . of these measures read britton , ca. . estate , ( fr. estat . i. conditio , ) signifies especially that title or interest which a man hath in lands or tenements , as estate simple , otherwise called fee simple , and estate conditional , or upon condition , which is ( according to litt. lib. . ca. . ) either upon condition in deed , or upon condition in law ; the first is , where a man by deed indented , infeoffs another in fee , reserving to him and his heires yearly a certain rent , payable at one feast or at divers , upon condition , that if the rent he behind , &c. it shall be lawful for the feoffer and his heirs to enter — estate upon condition in law , is such , as hath a condition in law annexed to it , though it be not specify'd in writing : for example , if a man grant to another by his deed , the office of a parker , for life ; this estate is upon condition in the law , or imply'd by law , viz. if the parker so long shall well and truly keep the park , &c. we read also of an estate particular , which is an estate for life , or for years . perkins , surrenders . esterling . see sterling . estopel , ( from the fr. estouper . i. oppilare , obstipare , ) is an impediment , or bar of an action , growing from his own fact , who hath , or otherwise might have had his action ; for example , a tenant makes a feoffment by collusion to one , the lord accepts the services of the feoffee , by this he debars himself of the wardship of his tenants heir . fitz. nat. br. fol. . k. and broke , hoc titulo . coke lib. . casu goddard , defines an estopel to be a bar or hindrance to one to plead the truth , and restrains it not to the impediment given a man by his own act onely , but by anothers also . lib. . case of fines , fol. . there are three kinds of estopel , viz. by matter of record , by matter in writing , and by matter in paiis ; of which see coke on litt. fol. . a. estovers , ( estoveria , from the fr. estouver . i. fovere , ) signifies nourishment , or maintenance : bracton . ( lib. . tract . . ca. . num . . ) uses it for that sustenance , which a man , apprehended for felony , is to have out of his lands or goods for himself and his family , during his imprisonment ; and the stat. ed. . ca. . useth it for an allowance in meat or cloth . it is also used for certain allowances of wood , to be taken out of another mans woods ; westm . . ca. . car. . ca. . west , pa. . symbol . tit . fines . sect. . sayes , estovers comprehends house-bote , hay-bote and plow-bote ; as , if one hath in his grant these general words , de rationabili estoverio in boscis , &c. he may thereby claim these three . in some mannors the tenants have common of estovers , that is , necessary botes out of the lords woods , as at orleton in com. heref. where the tenants paid the lord a wood-hen yearly by way of rent or retribution for the same . rationabile estovorium . see alimony . estray , ( from the old fr. estrayeur , lat. extrahura . pecus quod elapsum a custode campos pererrat , ignoto domino , ) signifies any beast that is not wild , found within any lordship , and not owned by any man ; in which case , if it be cried according to law in the next market-towns , and it be not claimed by the owner within a year and a day , it is the lords of the soil . see britton . ca. . see estrays in the forrest , anno hen. . ca. . new book of entries , verbo , trespas concernant estrey . the ancient law of k. inas was — diximus de ignotis pecoribus , ut nemo habeat sine testimonio hundredi vel bominum decennae . i. sectatorum letae . spel. estreat , ( extractum , ) is used for the copy or true note of an original writing ; and especially of amerciaments , or penalties set down in the rolls of a court , to be levied by the bailiff or other officer upon every man for his offence . see fitz. nat. br. fol. , & . and so-it is used , we stm . . ca. . clerk of the estreats . see in clerk. estrepe , ( fr. estropier . i. mutilare , ) to make spoil by a tenant for life in lands or woods to the prejudice of him in reversion . estrepement , or estrepament , ( from the fr. estropier . i. mutilare , ) signifies spoil made by the tenant for term of life upon any lands or woods to the prejudice of him in the reversion , stat. . edw. . ca. . and , it may seem by the derivation , that estrepament is properly the unreasonable soaking , or drawing away the heart of the land , by plowing and sowing it continually , without manuring , or other good husbandry ; and yet estropier signifying mutilare , it may no less properly be applyed to those that cut down trees , or lop them farther then the law allowes . it signifies also a writ , which lies in two cases , the one , when a man , ( having an action depending , as a formdon , dum fuit infra atatem , writ of right , or such like , wherein the demandant is not to recover damages , ) sues , to inhibit the tenant from making wast , during the sute . the other is for the demandant , who is adjudged to recover seisin of the land in question , and before execution sued by the writ habere facias possessionem , for fear of waste to be made before he can get possession , sues out this writ . see more in fitz. nat. br. fol & . reg. of writs , fol. . and reg. judic . fol. . in ancient records we often find vastum & estrepamentum facere . videturque estrepamentum gravius vasti genus designare . spel. etheling , or aetheling , in the saxon signifies noble , and it was ( among our english saxons ) the title of the prince , or kings eldest son ; as we read in camden , edgar aetheling england's dearling . everwicscire , yorkshire , anciently so called . willielmus rex angliae thumae archiepiscupo & bertramo de verdon & baronibus suis francis & anglis de everwicscire , &c. carta will. conq. evidence , ( evidentia , ) is used generally for any proof , be it testimony of men , records , or writings . sir tho. smyth hath these words , ( lib. . c. . ) evidence in this signification is authentical writings of contracts , written , sealed , and delivered . and ( lib. . ca. . ) speaking of the prisoner that stands at the bar to plead for his life , he says thus ; then he tells what he can say for himself ; after him likewise all those , who were at the apprehension of the prisoner , or , who can give any indices or tokons , which we call in our language evidence , against the malefactor . it is called evidence , because thereby the point in issue is to be made evident to the jury ; probationes debent esse evidentos . i. perspicuae & faciles . see coke on litt. fol. . exactor regis , the kings exactor ; qui publicas pecunias , tributa , vectigalia , & res fisco debitas exegit . sometimes taken for the sheriff . hoc enim sensu , niger liber seac . par . . ca. ult . tabulas , quibus vicecomes censum regium colligit , rotulum exactorium vocatur . examiners in the chancery , ( examinatores , ) are two officers , that examin , upon oath , witnesses produced on either side , upon such interrogatories as the parties to any sute do exhibit for that purpose ; and sometimes the parties themselves are , by particular order , examin'd also by them . excambiator , was antiently used for an exchanger of land — ita quod unusquisque eorum qui damna sustinuit aliquo casu contingente , quod excambiator refundat dampna , misas & expensas quocunque casu proveniente . ex libro cartarum priorat . leominstr . de anno edw. . exception , ( exceptio , ) is a stop or stay to an action , being used in the civil and common law both alike , and in both divided into dilatory and peremptory . of these see bracton , lib. . tract . . per totum . and britton , ca. , . exchange , ( cambium vel excambium , ) is used peculiarly for that compensation , which the warrantor must make to the warrantee , value for value , if the land warranted be recovered from the warrantee . bracton lib. . ca. . and lib. . cap. . it signifies also generally as much as permutatio with the civilians , as the kings exchange , anno hen. . ca. & . — ed. . stat. . ca. . which is the place appointed by the king for exchange of plate or bullion for the kings coyn. these places have been divers heretofore , as appears by the said statutes ; but , now there is onely one , viz. the tower of london , conjoyned with the mint ; which , in time past , might not be , as appears by hen. . ca. . exchangeors , are those that return money beyond sea by bills of exchange , which , ( by the stat. rich. . ca. . ) ought not to be done without the kings licence . see excambiator . exchequer . see eschequer . excise , is a charge , or imposition laid upon beer , ale , sider , and other liquors within the kingdom of england , wales and berwick , by act of parliament , car. . ca. . during the kings life , and , according to the rates in the said act mentioned . see car. . ca. . — . ejusdem . . and ejusdem , ca. . excommengement ( anno hen. . cap. . ) is in law-french , the same with excommunication . excommunication ( excommunicatio ) is a censure inflicted by the canon or ecclesiastical judge , depriving the person offending from the lawful communion of the sacraments , and sometimes of the liberty , of even conversing with the faithful . and it is divided , in majorem & minorem : minor est per quam quis a sacramentorum participatione conscientia vel sententia arcotur . major , quae non solum a sacramentorum , verum-etiam fidolium communione oxcludit , & ab omni actu legitimo separat & dividit . venatorius de sent. excom . auctoritate dei patris omnipotentis & filii & spiritus sancti ; & beatae dei genetricis mariae , omniumque sanctorum , excommunicamus , anathematizamus , & a limitibus sanctae matris ecclesiae sequestramus illos malefactores , n. consentaneos quoque & participes ; & nisi resipuerint , & ad satisfactionem venerint , sic extinguatur lucerna eorum ante viventem , in saecula saeculorum : fiat , fiat . amen . ex emendat . legum wil. conquestor . in lib. vocat . textus roffensis . excommunicato capiendo , is a writ directed to the sheriff , for apprehending him who stands obstinately excommunicated forty days : for the contempt of such a one , not seeking absolution , may be certified or signified into chancery , whence issueth this writ , for the laying him up without bail or mainprise , until he conform himself . fitz. nat. br. fol. . anno eliz. cap. . and reg. of writs , fol. . excommunicato deliberando , is a writ to the under-sheriff for delivery of an excommunicate person out of prison , upon certificate from the ordinary of his conformity , to the jurisdiction ecclesiastical . fitz. nat. br. fol. . reg. of writs , fol. . excommunicato recipiendo , is a writ , whereby persons excommunicate , being for their obstinacy committed to prison , and unlawfully delivered thence , before they have given caution to obey the authority of the church , are commanded so be sought for , and laid up again . reg. of writs , fol. . a. executione facienda , is a writ , commanding execution of a judgment , the divers uses whereof , see in the table of register judicial . executione facienda in witheinamium , is a writ that lies for the taking his cartle , who formerly had conveyed out of the county the cattle of another : so that the bailiff , having authority from the sheriff to replevy the cattle so conveyed away , could not execute his charge . reg. of writs , fol. . b. execution ( executio ) signifies the last performance of an act , as of a fine or judgment . execution of a fine , is the obtaining actual possession of the things contained in it , by vertue thereof , which is either by en●y into the lands , or by writ ; whereof see west at large , par. . symbol . tit . fines , sect . . executing of judgments , statutes , and such like , see in fitz. nat. br. in indice . verbo , execution . — coke ( vol. . casu blumfield , fol. . a. ) makes two sorts of executions ; one final , another with a quousque , tending to an end an execution final , is that which makes money of the defendants goods , or extends his lands , and delivers them to the plaintiff , which he accepts in satisfaction , and is the end of the sute , and all that the kings writ commands to be done . the other writ , with a quousque , is tending to an end , but not final , as in the case of capias ad satisfaciendum , &c. which is not final , but the body of the party is to be taken , to the intent , to satisfie the demandant ; and his imprisonment is not absolute , but until he satisfie . idem , ibid. executor ( executor ) is he that is appointed by any mans last will and testament , to have the execution thereof , and the disposing of all the testators substance , according to the tenor of the will. see the duty of executors , a book so entituled . executor de son tort , or of his own wrong , is he that takes upon him the office of an execator by intrusion , not being so constituted by the testator , or deceased , nor ( for want of such constitution ) constituted by the ordinary to administer . how far he shall be liable to creditors , see eliz. cap. . dyer . and the duty of executors , cap. . exemplification of letters patent ( an. eliz. cap. . ) is a copy or example of letters patent , made from the inrollment thereof , and sealed with the great seal of england ; which exemplifications are as effectual to be shewed or pleaded , as the letters patent themselves . nothing but matter of record ought to be exemplified . inst . fol. . see pages case , rep. exemplificatione , is a writ granted for the exemplification of an original . see reg. of writs , fol. . ex gravi querela , is a writ that lies for him , to whom any lands or tenements in fee , ( within a city , town , or borough , wherein lands are devisable ) are devised by will , and the heir of the devisor enters , and detains them from him . reg. of writs , fol. . old nat. br. fol. . see fitz. nat. br. fol . l. exhibit ( exhibitum ) when any deed , acquittance , or other writing , is in a sute in chancery exhibited to be proved by witnesses , and the examiner certifies on the back of it , that the deed was shewed to such a one at the time of his examination , this is there called an exhibit . the word is mentioned anno car. . cap. . exigendaries of the common bench ( exigendarii de banco communi ) are otherwise hen. . cap. . called exigenters , which vide. exigent ( exigenda ) is a writ that lies , where the defendant in an action personal cannot be found ; nor any thing of his within the county , whereby to be attached or distrained , and is directed to the sheriff , to proclaim and call him five county days one after another , charging him to appear under pain of outlary . this writ also lies in an indictment of felony , where the party indicted cannot be found . smith de repub. angl. lib. . cap. . it is called an exigent , because it exacteth the party , that is , requires his appearance or forth-coming to answer the law ; for if he come not at the last days proclamation , he is said to be quinquies exactus , and then is outlawed . cromp. jurisd . fol. . see the new book of entries , verbo , exigent . exigenters ( exigendarii ) are four officers of the court of common pleas , who make a●l exigents and proclamations in all actions , wherein process of outlary lies , and writs of supersedeas , as well as the pronotaries , upon such exigents as were made in their offices . hen. . cap. . but the making the writs of supersedeas , is since taken from them by an officer in the court of common pleas , erected by king james , by his letters patent in the later end of his reign . ex mero motu ( lat. ) are formal words used in the kings charters , and letters patent , signifying , that he does what is contained therein of his own will and motion , without petition or suggestion made by any other ; and the effect of these words is to bar all exceptions , that might be taken to the instrument , wherein they are contained , by alleaging , that the prince in passing such a charter was abused by salse suggestion . kitchin , fol. . ex officio . by vertue of a branch of the stat. eliz. cap. . the queen , by her letters patent might authorise any person or persons , &c. to administer an oath ex officio , whereby the supposed delinquent was compelled to confess , accuse or purge himself of any criminal matter , and thereby be made liable to censure or punishment , &c. the branch of which statute relating to the said oath is repealed , car. . cap. . exoneratione sectae , was a writ that lay for the kings ward to be disburdened of all sute , &c. to the county , hundred , leet , or court baron , during the time of his wardship . fitz. nat. br. fol. . ex parte ( lat. ) partly , or of one part . in the court of chancery it hath this signification , a joynt-commission is that wherein both plaintiff and defendant joyn ; a commission ex parte , is that which is taken out and executed by one party onely . ex parte talis , is a writ that lies for a bailiff or receiver , who , having auditors assigned to hear his account , cannot obtain of them reasonable allowance , but is cast into prison by them . fitz. nat. br. fol. . the manner in this case is , to take this writ out of the chancery , directed to the sheriff , to take four mainpernors to bring his body before the barons of the exchequer , at a day certain , and , to warn the lord to appear at the same time . expectant . used with this word fee , differs from fee-simple ; for example , lands are given to a man and his wife in frank-marriage , to hold to them and their heirs ; in this case they have fee-simple ; bat , if it be given to them and the heires of their body , &c. they have taile , and fee-expectant . kitchin , fol. . explees . see esplees . expeditate , ( expeditare vel expaaltare , ) in the forest laws signifies to cut out the bal● of great dogs fore-feet , for preservation of the kings game . every one that keeps any great dogs , not expeditated , forfeits three shillings to the king. the ball of the foot of mastists is not to be cut off , but the three claws of the fore-foot to the skin . part. inst . fol. . — nullus dominicos canes abbatis & monachorum expaaltari cogat . charta , hen. . abbati de rading . — & sint quieti de espeditamentis canum . ex magno rot. pipae , de anno ed. . expenditors , ( anno hen. . ca. . ) seems to signifie those that pay , disburse , or expend the tax in the said statute mentioned . anno jac. ca. . paymasters . expensis militum levandis , is a writ directed to the sheriff , for levying allowance for the knights of the parliament , reg. of writs , fol. . b. explorator , a scout . — in memoriam henrici croft equitis aurati exploratoris in hibernia generali● , qui obiit anno . scoutmaster-general . also a huntsman or chaser . — idem abbas habens exploratores suos statim ponere fecit retia , &c. in itin. pickering , ed. . rot. . extend , ( extendere , ) to value the lands or tenements of one bound by statute , &c. that has forfeited his bond , to such an indifferent rate , as by the yearly rent , the creditor may in time be paid his debt ; the course , and circumstances of this see in fitz. nat. br. fol. . extendi facias , is ordinarily called a writ of extent , whereby the value of lands is commanded to be made and levied in divers cases , which see in the table of the register of writs . extent , ( extenta , ) sometimes signifies a writ , or commission to the sheriff for the valuing of lands or tenements ; sometimes the act of the sheriff , or other commissioner upon this writ . broke tit . extent . fol. . an. & car. . ca. . extinguishment , ( from extinguo , ) signifies an effect of consolidation ; for example , if a man have a yearly rent due to him out of my lands , and afterwards purchase the same lands , now both the property and rent are consolidated , or united in one possessor , and therefore the rent is said to be extinguished . so , where a man has a lease for years , and afterwards buys the property , this is a consolidation of the property of the fruit , and an extinguishment of the lease . and , if there be lord , mesn and tenant , and the lord purchase the tenancy , then the mesnalty is extinct ; but , the mesne shall have the surplusage of the rent , if there be any , as rent-seck . terms ley . extirpatione , is a writ judicial that lies against him , who , after a verdict found against him for land , &c. does maliciously overthrow any house , or extirpate any trees upon it ; and , it is two-fold ; one ante judicium , the other post judicium . reg. judicial . fol. . . . extortion , ( extortio , ) is an unlawful or violent wringing of money , or money-worth from any man. for example , if an officer ; by terrifying another in his office , take more then his ordinary fees or duties , he commits , and is inditeable of this offence : to this , ( in wests judgment , ) may be refer'd the exaction of unlawful usury , winning by unlawful games , and ( in one word ) all taking of more then is due , by color or pretence of right ; as excessive toll in milners , excessive prizes of alc , bread , victuals , wares , &c. part . symb. tit . inditements sect. . — manwood , ( part . pa. . ) sayes , extortion is colore officii , not virtute officii — crompton ( in his justice of peace , fol. . ) sayes , to this effect , wrong done by any man in properly a trespass , but excessive wrong is called extortion ; and , this is most properly in sheriffs , mayors , bailiffs , and other officers whatsoever , who , by color of their office , work great oppression and wrong to the kings subjects , in taking excessive rewards or fees , for executing their office ; in the same author , fol. . you may see great diversity of cases touching extortion . see also part. inst . fol. . extracts . see estreats . eyre . see eire . eyet , ( insuletta , ) a little island ; i have seen it corruptly written in some modern conveyances , eyght . f. f. he that shall maliciously strike any person with a weapon in church or church-yard , or draw any weapon there with intent to strike , shall have one of his ears cut off ; and , if he have no ears , then shall be marked on the cheek with a hot iron , having the letter f. whereby he may be known for a fray-maker or fighter . anno & edw. . ca. . fabrick-lands , are lands given towards the maintenance , rebuilding or repair of cathedrals , or other churches , and mentioned in the act of oblivion . car. . ca. . in antient time almost every one gave by his will more or less to the fabrick of the cathedral or parish-church where he liv'd . — in dei nomine amen . die veneris ante festum nativitatis sancti johannis baptistae , anno dom. . ego ricardus smyth de bromyard condo testamontum meum in hunc modum , inprimis lego animam meam deo & beatae mariae & omnibus sanctis , corpusque meum sepeliendum in cimiterio beatae edburgae de bradway . item lego fabricae ecclesiae cathedralis hereford . xii d. item lego fabricae capella beatae mariae de bromyard xl d. item lego fratribus de woodhouse xx d. residuum vero bonorum , &c. these fabric-lands the saxons called tymber-londs . faculty , ( facultas , ) as it is restrained from the original and active signification , to a particular understanding in law , is used for a priviledge or especial power granted to a man by favour , indulgence and dispensation , to do that , which by the common-law he cannot ; as , to eat flesh upon dayes prohibited , to marry without banes first asked , &c. anno hen. . ca. . the court of faculties belongs to the archbishop of canterbury , and his officer is called magister ad facultates ; his power is to grant dispensations , as , to marry , to eate flesh on dayes prohibited ; the son to succeed the father in his benefice ; one to have two or more benefices incompatible , &c. this authority was given by the statute hen. . ca. . see part. inst . fol. . faint , alias feint-action , ( fr. feinct , ) is as much as fained-action ; that is , such an action , as albeit the words of the writ be true ; yet , for certain causes , he has no title to recover thereby : and , a false action is , where the words of the writ are false . coke on lit. fol. . yet sometimes they are confounded . faint-pleader , ( from the fr. feinte , falsus , ) signifies a false , covenous or collusory manner of pleading , to the deceit of a third party , & hen. . ca. . fair-pleading . see beaupleder . faitours , ( a french word , antiquated , or somewhat traduced ; for , the modern french is faiseur . i. factor , ) is used in the stat. r . ca. . in the evil part , signifying a bad doer ; or , it may not improbably be interpreted an idle liver , taken from faitardise , which signifies a kind of num or sleepy disease , proceeding of too much sluggishness , which the latines call veturnus : for , in the said statute it seems to be a synonymon with vagabond . falda , a sheepfold . — et quod oves sint levantes & cubantes in propria falda canonicorum praedictorum . rot. cart . hen. . m. . faldage , ( faldagium , ) is a priviledge which many lords anciently reteined to themselves , of setting up sheep-folds , or pens , in any fields within their mannors , the better to manure them ; and this not onely with their own , but with their tenants sheep , which is called secta faldae ; this faldage is call'd in some places a fold-course , or free-fold ; and , in some ancient charters fald-soca . i. libertas faldae , or libertas foldagii . — rogerus rusteng concessit eccesiae b. mariae de wimondbam acras terrae in scarnebrune , cum dimidia fald-soca , &c. chartular . monasterialis ecclesiae praedict . pa. . — de faldagio habendo ad ducentos bidentes ; ad plus , in villa de atheburgh , mon. angl. par. fo . . a. falesia , ( fr. falaize , ) a bank , hill , or down by the sea-side . coke on litt. fol. . b. falkland , alias folkland . see copyhold and freehold . false amprisonment , is a trespass committed against a man , by imprisoning him without lawful cause ; it is also used for the writ brought upon this trespass . fitz. nat. br. fol. . k. and . p. vide broke , and new book of entries , verbo , false imprisonment . false prophecies . see prophecies . false returno brevium , is a writ lying against the sheriff , for false returning of writs . reg. judicial . fol. . b. falsify , seems to signifie as much as to prove a thing to be false . perkins , dower . , . also to say or do falsly ; as to falsify , or counterfeit the kings seal . rex — vic. lincoln . scias quod dedimus adae de essex clerico nostro , pro servicio suo , omnes terras & tenementa quae fuerunt will. de scrubby , cujus terrae & tenementa sunt excaeta nostra , per feloniam quam fecit de falsificatione sigilli nostri . t. apud linc. . nou. &c. claus . joh. m. . in dorso . familia , pro hida , massa , manso , carucata . — donavit terram quinquaginta familiarum ad construendum monasterium . beda hist . eccl. lib. ca. . this term hide , is , by our writers , sometimes called a manse , sometimes a family , sometimes carucata , or a plough-land ; containing as much as one plough and oxen could cultivate in one year . cressy's church-hist . fol. . b. ubi beda familiam , saxonicus ejus interpres coaetaneus passim hide redderet , anglo-normannis carucata terrae . gloss . in x. script . fanaticks , ( anno car. . ca. . ) is used as a general name for quakers , anabaptists , and other dissenters from the church of england . faonatio , or feonatio , ( from the fr. faonner , ) a fawning , or bringing forth young , as does do . carta forestae , ca. . farding , or farthing of gold , ( quasi fourth-thing , ) was a coin used in ancient times , containing in value the fourth part of a noble , viz. xx d. silver , and in weight the sixth part of an ounce of gold , that is , of s. in silver ; mention'd h. . stat. . cap. . thus ; item , that the king do to be ordained good and just weight , of the noble , half-noble , and farthing of gold , with the rates necessary to the same , for every city , &c. whereby it plainly appears to have been a coin ; as well as the noble and half-noble . farandman , ( sax. faran , to travel , ) a merchant-stranger , or pilgrim ; to whom , by the lawes of scotland , justice ought to be done with all expedition , that his business or journey be not hinder'd . fardel of land , ( fardella terrae , ) is , ( according to some authors , ( the fourth part of a yard-land . yet noy , ( in his compleat lawyer , pa. . ) sayes , two fardels of land make a nook , and four nooks make a yard-land . farding deal , ( sax feord i. quarta & del , or doele . pars . ) alias farundel of land , ( quadrantata terrae , ) signifies the fourth part of an acre . crom. jur. fol. . quadrantata terrae is read in the reg. of writs , fol. . b. where you have also denariata & obolata , solidata & librata terrae , which must probably rise in proportion of quantity from the fardingdeal , as an half-penny , penny , shilling or pound rise in value ; then must obolata be half an acre , denariata an acre , solidata twelve acres , and librata twelve score acres ; yet , i find viginti libratas terrae vel redditus . reg. fol. . a. and fol. . b. whereby it seems librata terrae is so much as yields xx s. per annum ; and , centum solidatas terrarum , tenementorum & redituum , fol. . a. and , in fitz. nat. br. fol. . f. viginti libratas terrae vel reditus , which argues it to be so much lands as twenty shillings per annum . see furlong . others hold obolata to be but half a pearch , and denariata a pearch . see spelmans gloss . verbo , obolata terrae . — sciatis me rogerum de ichtefeld dedisse — medietatem unius feorwendel terrae de meo dominio , &c. mon. angl. pa. fo . . b. fare ( sax. ) a voyage or passage ; or the money paid for passing by water . anno & ph. & ma. cap. . farley or farle● , in the mannor of west slapton in com. devon. if any tenant die possessed of a cottage , he is by the custom to pay to the lord six pence for a farley . which i suppose may be in lieu of a heriot : for in some mannors westward , they distinguish farleu to be the best good , as hariot is the best beast payable at the tenants death . farm ( from the sax. feorme , i. food . ) reditus est qui in ●locandis praediis domino elocanti reservatur . see ferm , and spelm. gloss . verbo , firma . farthing of land ( sax. feorþling ) seems to be some great quantity , and to differ much from fardingdeal : for i finde in a survey book of the mannor of west slapton in devonshire , entred thus . a. b. holds six farthings of land at l. per annum some hold it to be a yardland . see fardel , fardingdeal , and farding . fat or uate , is a great wooden vessel , which among brewers and maulsters , is used to measure mault for expedition , containing a quarter . mentioned stat. hen. . cap. . and hen. . cap. . it is likewise a vessel or pan of lead , for the making of salt , at droitwich in the county of worcester , whereof the several owners or proprietors do claim estates of inheritance and burgesship . fautors ( anno rich. . cap. . ) favorers , supporters , or maintainers . fealty ( fidelitas , fr. feaulte , i. fides ) signifies an oath taken , at the admittance of every tenant , to be true to the lord of whom he holds his land : and he that holds land ; by this onely oath of fealty , holds in the freest manner ; because , all that have fee , hold per fidem & ●iduciam , that is , by fealty at the least . smith de repub. angl. lib. . cap. . this fealty is also used in other nations , as in lombardy and burgundy . cassanaeus de consuetud . burgund . pag. . and indeed , as the very first creation of this tenure grew from the love of the lord towards his followers ; so did it bind the tenant to fidelity , as appears by the whole course of the feods ; and the breach thereof , is loss of the fee. hotoman in his commentaries , de verbis feudalibus , shews a double fealty , one general , to be performed by every subject to his prince ; the other special , required onely of such , as in respect of their fee , are tied by this oath towards their land-lords ; we may read of both in the grand custumary of normandy , &c. fealty special is with us performed , either by freemen or by villains ; the form of both see , anno edw. . in these words , when a fréeman shall do fealty to his lord , he shall hold his right hand upon a book , and shall say thus , hear you my lord r. that i. p. shall be to you , both faithful and true , and shall ow my fealty to you for the land that i hold of you , at the terms assigned . so help me god , and all his saints . when a uillain shall do fealty to this lord , he shall hold his right hand over the book , and say thus , hear you my lord a. that i. b. from this day forth , unto you shall be true and faithful , and shall ow you fealty , for the land that i hold of you in villange , and shall be justified by you , in body and goods : so help me god , and all his saints . see reg. of writs , fol. . a. fidelitas est fidei , ubsequii & servitii ligamen , quo generaliter subditus regi , particulariter vassallus domino astringitur spel. fée ( feodum alias feudum ) is applied to all those lands and tenements , which we hold by perpetual right , and by an acknowledgment of any superiority to a higher lord. those that write of this subject , divide all lands and tenements , wherein a man hath a perpetual estate to him , and his heirs , into allodium and feudum . allodium is defined to be every man 's own land , &c. which he possesseth meerly in his own right , without acknowledgment of any service or payment of any rent to any other , and this is a property in the highest degree . feudum , is that which we hold by the benefit of another , and in the name whereof we ow service , or pay rent , or both , to a superior lord. and all our land here in england ( the crown land , which is in the kings own hands , in right of his crown excepted ) is in the nature of feudum , or fee : for though many have land by descent from their ancestors , and others have dearly bought land for their money , yet is it of such nature , that it cannot come to any , either by descent or purchase , but with the burthen that was laid upon him , who had novel fee , or first of all received it , as a benefit from his lord , to him , and to all such , to whom it might descend , or any way be conveyed . so that there is no man that hath directum dominium , i. the very property or demain in any land , but the prince , in right of his crown . camd. britan. pag. . for , though he that hath fee , hath jus perpetuum & utile dominium , yet he ows a duty for it , and therefore it is not simply his own ; which thing , i take those words , we use for the expressing our deepest rights in any lands or tenements , to import ; for he that can say most for his estate , saith thus , i am seised of this , or that land , or tenement , in my demain , as of fee ; and that is as much , as if he had said , it is my demain or proper land after a sort , because it is to me and my heirs for ever , yet not simply mine , because i hold it in the nature of a benefit from another ; yet the stat. hen. . cap. . useth the word ( fee ) of lands invested in the crown , but it proceeds from an ignorance of the nature of the word ; for fee cannot be without fealty sworn to a superior , as you may read partly in the word fealty , but more at large in those that write de feudis ; and namely hotoman , both in his commentaries and disputations ; since no man may grant , that our king or crown oweth fealty to any superior , but god onely . and all that write de feudis , hold , that feudatarius hath not an entire property in his fee. fee is divided into fee absolute , otherwise called fee-simple , and fee-conditional , otherwise termed fee-tail . fee-simple ( feudum simplex ) is that whereof we are seised to us and our heirs for ever . fee-tail ( feudum taliatum ) is that whereof we are seised , with limitation , to us , and the heirs of our body ; &c. which fee-tayle is both general and special ; general is , where land is given to a man and the heires of his body ; the reason whereof is shewed by littleton , lib. . ca. . because a man seised of land by such a gift , if he marry one or more wives , and have no issue by them , and , at length marry another by whom he hath issue , this issue shall inherit the land. fee-tayl special is that , where a man and his wife are seised of lands to them and the heirs of their two bodies ; because in this case , the wife dying without issue , and he marrying another by whom he hath issue , this issue cannot inherit the land , being especially given to such heirs , &c. this fee-tayl has original from the stat. of westm . . ca. . yet see bracton , lib. . ca. . num . . item quaedam absoluta & larga & quaedam stricta & coarcta , sicut certis haeredibus . to whom add plowden casu , willion , fol. . for , before that statute , all land given to a man and his heirs , either general or special , was accounted in the nature of fee , and therefore held to be so firmly in him to whom it was given , that , any limitation notwithstanding , he might alienate it at his pleasure , coke on litt. fol. . for redress of which inconvenience the said statute was made , whereby it is ordain'd , that if a man give lands in fee , limiting the heirs to whom it shall descend , with a reversion to himself or his heires for default , &c. that the form and true meaning of his gift shall be observed . he that hath fee then , holdeth of another by some duty or other which is called service . this word fee is sometimes used for the compass or circuit of a lordship or mannor . bracton lib. . ca. . in eadem villa & de eodem feodo . thirdly , it is used for a perpetual right incorporeal , as , to have the keeping of prisons in fee. old. nat. br. fol. . rent granted in fee. eodem fol. . sheriff in fee. anno ed. . stat. . ca. . lastly , fee signifies a reward or ordinary duty given a man for the execution of his office , or the performance of his industry in his art or science ; as the lawyer or physitian is said to have his fee , when he hath the consideration of his pains taken , the one with his client , the other with his patient . fee expectant , is by the feudists termed feudum expectativum . see expectant . fee farm , or fee ferm , ( feudi firma vel feofirma , ) is , when the lord , upon creation of the tenancy , reserves to himself and his heirs , either the rent , for which it was before letten to farm , or at least a fourth part of that rent . part inst . fo . . and , that without homage , fealty , or other services , other then are especially comprized in the feoffment , but , by fitzh . it seems the third part of the value may be appointed for the rent , or the finding of a chaplain to sing divine-service , &c. nat. br. fol. . c. and , the nature of it is this , that , if the rent be behind , and unpaid for the space of two years , then the feoffor or his heirs have action to recover the lands , as their demesnes . britton . ca. . num . . but observe out of wests symbol . part . lib. . sect. . that the feoffment may contain services and sute of court , as well as rent : and , the author of the new terms of law saith , that feeferm oweth fealty , though not expressed in the feoffment , since fealty belongs to all kinds of tenures . see ferm . felo de se , is he that commits felony by murdring himself . see crom. justice of p. fo . . and lamb. eiren. lib. . ca. . the saxons called him self bana , self-bane . felony , felonia , ( fr. felonnie . ) sir edward coke sayes , ideo dicta est felonia , quia fieri debet felleo animo , lib. . fol. . b. we account any offence felony that is in degree next petit treason , and compriseth divers particulars , as murder , theft , killing ones self , sodomy , rape , willful burning of houses , and divers such like , which are to be gathered especially out of the statutes , whereby many offences are daily made felony , which were not so before . felony is discerned from lighter offences , in that the punishment thereof is death : yet not alwayes ; for petit larceny , ( which is the stealing any thing under the value of twelve pence ) is felony , as appears by broke tit . coron . num . ; his reason is , because the inditement against such a one must run with these words , felonice cepit , yet not punished by death , though it be loss of goods . other exception i know not , but that a man may call that felony , which is under petit-treason , and punished by death : of this there are two sorts , one lighter , which , for the first time , may be relieved by clergy , another that may not ; which , may also be known by the statutes ; for , clergy is allowed where it is not expresly taken away . of this read stamf. pl : cor. lib. . ( but many offences are made felony by statute since he wrote , ) and lamb. justice of p. lib. . ca. . in a table drawn for the purpose . felony is also punished by loss of lands not intailed , and goods and chattels , both real and personal ; yet the statutes make difference in some cases concerning lands , as appears by hen. . ca. . felony ordinarily works corruption of blood , unless a statute , ordaining an offence to be felony , says , it shall not corrupt the blood ; as eliz. c. . feme covert , ( fr. ) a marryed woman , ( anno eliz. ca. . ) who is also said to be under covert baron . fence-moneth , ( mensis prohibitionis , or mensis vetitus , ) is a moneth wherein the female deer do fawn , and therefore t is unlawful to hunt in the forest during that time , which begins fifteen dayes before midsommer , and ends fifteen dayes after , in all dayes . see manwood , part . cap. . per totum , and the stat , car. . ca. . it is also called the defence moneth , that is , the forbidden moneth ; for , the latin is , ponantur in defenso . there are also certain fence , or defence moneths , or seasons for fish , as well as wild beasts , as appears by westm . ca. . in these words ; all waters where salmons are taken shall be in defence for taking of salmons from the nativity of our lady unto st. martins-day . and likewise that young salmons shall not be taken nor destroyed by nets , &c. from the midst of april , to the nativity of st. john baptist . see also r. . stat. . ca. . fengeld , ( sax. ) pecunia vel tributum ad arcendos hostes erogatum . m. s. antiq. feodal , ( feodalis vel feudalis , ) of , or belonging to the fee , fee-farm , or fee-simple . anno. car. . ca. . feodary , feudary , or feudatary , ( feudatarius , ) was an officer , authorized and made by the master of the court of wards , by letters patent under the seal of that office ; his function was , to be present with the escheator at the finding any office , and to give evidence for the king , as well concerning the value , as the tenure , to survey the land of the ward , after the office found , and rate it . he did also assign the kings widows their dowers , and receive all the rents of wards lands within his circuit . this officer is mentioned anno. hen. . ca. , and seems to be totally taken away by car. . ca. . noble-men had also particular feodaries . humfrey count de stafford & de perch seigneur de tunbridge & de cauz , a nostre feodier en le counte de warwick , &c. saches que nous — dat. h. . feofment , ( feofamentum , from the gothish word feudum , ) signifies donationem feudi , any gift , or grant of any honours , castles , mannors , messuages , lands , or other corporeal and immoveable things of like nature , to another in fee ; that is , to him and his heirs for ever , by the delivery of seisin , and possession of the thing given , whether the gift be made by word , or writing : when it is in writing it is called a deed of feofment ; and , in every feofment the giver is called the feoffer , ( feofators ) and , he that receives , by vertue thereof , the feoffee , ( feofatus . ) litt. lib. . ca. . says , the proper difference between a feoffor and a donor , is , that the first gives in fee-simple , the other in feetay 〈…〉 feofamentum est ipsum donum , concessio vel actus feofandi . see coke on litt. fol. . ferdella terrae , is ten acres . see virgata and fardel . ferdendel . see fardingdeal . ferdfare , significat quictantiam eundi in exercitum . fleta , lib. . ca. . ferdwit , significat quietantiam murdri in exercitu . fleta , lib. . ca. . — et sint quieti de fictwite , flictwite , & ferdwite , & hengewite , & leirwite , &c. carta h. . m. . ferial-days , ( dies feriales , ) feriae , ( according to the latin dictionary , ) signifies holy-dayes , or dayes vacant from labour and pleading : but , in the stat hen. . ca. . ferial dayes are taken for working dayes ; for , s. silvester ordain'd — sabbati & dominici diei nomine retento , reliquos hebdomadae dies feriarum nomine distinctos , ut jam ante in ecclesia vocari coeperant , appellari . so that ferial dayes are properly all the dayes of the week , except saturday and sunday . ferling , ( ferlingus . sax. feorthling , ) the fourth part of a penny ; quadrans . quando quarterium frumenti venditur pro denar . tunc panis wastelli de ferling is ponderabit lib. & sol. assis . panis & cervis . anno hen. . cam. tit . huntingdon , says , there were in this borough four ferlings , that is , quarters of wards . ferlingata terrae , the fourth part of a yardland . decem acrae faciunt ferlingatam , ferlingatae faciunt virgatam , virgatae faciunt hidam , hidae faciunt feodum militare . esc . ed. . n. . ebor. in ancient records ferlingus terrae is also used . see mon. angl. part. fol. . a. and elsewhere ferdlingus terrae . ferm or farm , ( lat. firma . sax. feorme . fr. ferme , ) signifies a mouse and land , taken by lease in writing or parol . this in the north-parts is called a tack ; in lancashire a ferm-holt , in essex a wike . i find locare ad firmam sometimes to signifie with others , as much as to let , or set to farm with us ; the reason may be in respect of the sure hold they have above tenants at will. vide vocab . utriusque juris , ver●o , afflictus . how many ways ferm is taken see plowden , casu wriothesley , fol. . and terms ley , verbo , farm. fermisona , the winter season of deer , as tempus pinguedinis is the summer season . — quod idem hugo & haeredes sui de caetero quolibet anno possunt capere in praedicto parco . ( de blore ) unam damam in fermisona inter festum sancti martini & purif . beatae mariae , & unum damum in pinguedine inter festum sanctae crucis in mayo & festum s. crucis in septembr . imperpetuum : ita quod qualemcunque bestiam tempore pinguedinis vel fermisonae bersaverint , vel cum praedictis canibus ceperint , illa bestia cis remanebit ; & si sit in fermisona allocabitur cis pro dama , & si sit in pinguedine , allocabitur cis pro dama , &c. fin. concor . in guria dom. regis apud litchfield coram roger . de turkilby , &c. inter hugonem de acovre quer . & wil. de aldeleley defore . penes williel . dugdale , arm. see tempus pinguedinis . rex — dilecto ric. cassel custodi manerii de brustwyk salutem . cum mittamus dilectum valettum nostrum johannem de fulham ad instantem . fermisonam in pareis nostris ibidem , prout vobis & sibi melius ad opus nostrum fore videritis faciend , capiend . vbbis mandamus , &c. claus . edw. . m. . ferrure ( fr. ) the shooing of horses . see bouche of court. festingmen — ut illud monasterium ( sc . de breodun ) sit liberatum ab illis incommodis , quae nos saxonica lingua festingmen dicimus . certa berhtuulfi regis merciorum . in mon. angl. . par . fol. . a ; the saxon festenmon signifies fidejussor , a surety : so that by this charter probably they were to be free from the franck-pledge , and not bound for any mans forth-coming , who should transgress the law. feud or féed ( feida alias faida ) signifies in the german tongue guerram , i. bellum . lambert writes it féeth , and says it signifies capitales inimicitias . feud is used in scotland , and the north of england , for a combination of kinred to revenge the death of any of their blood , against the killer , and all his race , or any other great enemy . see skene verbo affidatio , and eliz. cap. . feudal . see feodal . feudary . see feudary . feud-bote ( sax. foehthbote ) a recompence for engaging in a feud or faction , and for the damages consequent : it having been the custom of ancient times , for all the kinred to engage in their kinsmans quarrel , according to that of tacitus , de moribus german . suscipere tam inimicitias , seu patris , seu propinqui , quam amicitias , necesse est . sax. dict. fictale , fildale , and filckale ( bract. lib. . fol. . ) a kinde of compotation or entertainment made by bailiffs , to those of their hundreds for their gain ; or ( according to sir edw. cokes . instit . fol. . ) an extortion colore compotationis . see scotale . fieri facias , is a writ judicial , that lies at all times within the year and day , for him that hath recovered in an action of debt or damages , to the sheriff , to command him to levy the debt or damages , of his goods , against whom the recovery was had . this writ had beginning from westm . . cap. . see old nat. br. fol. . and great diversity thereof in the table of regist . judic . verbo , fieri facias . fiftéenth ( decima quinta ) is a tribute or imposition of money laid upon any city , borough , or other town through the realm , not by the poll , or upon this or that man , but in general upon the whole city or town ; and is so called , because it amounts to a fifteenth part of that which the city hath been valued at of old , or to a fifteenth part of every mans goods and personal estate , according to a reasonable valuation . this is imposed by parliament , and every town , through the realm , knows what a fifteenth for themselves amounts unto , because it is always the same : whereas the subsidy , which is raised of every particular mans lands or goods , must needs be incertain , because every mans estate is incertain : and in that regard , the fifteenth seems to have been a rate anciently laid upon every town , according to the land or circuit belonging to it , whereof camden mentions many in his britan. viz. pag. . bath geldabat pro viginti hidis , quando schira geldabat , and pag. . old sarum pro quinquaginta hidis geldabat , &c. which rates were according to domesday . so that this seemed in old time to be a yearly tribute in certainty , whereas now , though the rate be certain , yet it is not levied , but by parliament . see tax and quinsieme . fightwite ( sax. ) mulcta ob commissam pugnam in perturbationem pacis . in exercitu regis sol. luebatur fightwita , i. forisfactura pugnae . m. s. codex . filazer ( from the fr. fil , a thred , line , or string ) is an officer in the court of common pleas ( so called , because he files those writs , whereon he makes out writs or process ) whereof there are fourteen in their several divisions and counties . they make out all writs and process upon original writs issuing out of the chancery , as well real , as personal , and mixt , returnable in that court. and in actions meerly personal , where the defendants are returned summoned , make out pones or attachments , which being returned and executed , if the defendant appears not , they make out a distringas , and so ad infinitum , or until he doth appear : if he be returned nihil , then process of capias infinite , if the plaintiff will , or after the third capias , the plaintiff may proceed to utlary in the county where his original is grounded , and have an exigent with proclamation . also the filazers make forth all writs of view in real actions , where the view is prayed , and upon replevins or recordares , writs of retorno habendo , second deliverance , and writs of withernam ; in real actions , writs of grand and petit cape before appearance . they enter all appearances and special bails , upon any process made by them . they make the first scire facias upon special bails , writs of habeas corpus , distringas , nuper vice-comitem vel balivum , and duces tecum , and all supersedeas upon special bail or appearance , &c. writs of habeas corpus cum causa upon the sheriffs return , that the defendant is detained with other actions , writs of adjournment of a term , in case of pestilence , war , or publick disturbance ; and ( until an order of that court , made jac. which limited the filazers to all matters and proceedings before appearance , and the prothonotaries to all after ) did enter declarations , imparlances , judgments , and pleas , whereunto a serjeants hand was not requisite , and made out writs of execution , and divers other judicial writs after appearance . and in the kings bench , of later times , there have been filazers , who make process upon original writs returnable in that court , upon actions contra pacem : the filazers of the common pleas having been officers of that court before the statute of hen. . cap. . wherein they are mentioned . f. p. filiolus , is properly a little son , also a godson . sciant — quod ego johannes lovet miles dominus de elmeley lovet , dedi — waltero le blount fratri meo & johanni filio suo , filiolo meo quindecim solidos annui reditus , &c. sine dat . here filiolus is used for a nephew ; for walter blount married the sister of this sir john lovet ; unless john the son , were also godson to sir john. filkale . see sothale and fictale . file ( filacium ) a thred or wier , whereon writs or other exhibits in courts and offices are fastned , properly called filed , for the more safe keeping them . finders ( anno edw. . stat . . and rich. . cap. . ) seem to be all one with those , which in these days we call searchers . fine ( finis ) hath divers uses or significations ; the first and most noble is , ( according to glanvile , lib. . cap. . ) amicabilis compositio & finalis concordia , ex consensu & licentia domini regis vel ejus justiciariorum ; or a covenant made before justices , and entred of record for conveyance of lands , tenements , or any thing inheritable , being in esse tempore finis ; to the end , to cut off all controversies . et finis dicitur finalis concordia , quia imponit finem litibus , & est exceptio peremptoria , says bracton , lib. . tract . . cap. . num . . see the new book of entries , verbo , fines . and edw. . stat . . cap. . so that this fine appears to be a composition or concord , acknowledged and recorded before a competent judge , touching some hereditament , or thing immovable , that was in controversie between the parties to the same concord ; and that , for the better credit of the transaction , it is by imputation made in the presence of the king , because levied in his court ; and therefore it bindes women-covert , being parties , and others whom ordinarily the law disables to transact , onely for this reason , that all presumption of deceit or evil meaning is excluded , where the king and his court of justice are supposed to be privy to the act. originally the use of this final concord was instituted and allowed , in regard that , by the law and ancient course of proceedings , no plaintiff ( giving real security or sureties , de clamore suo prosequendo , and being to be fined or amerced by the judges , if he failed therein , which , as appeareth by the records of king edward the first , were duly estreated and certified into the exchequer ) could agree without license of the court : so as fines have been anciently levied in personal actions , and for no greater a sum of money then xi l. but subtilty of wit and reason , hath in time wrought other uses of it , viz. to cut off intails ; and with more certainty to pass the interest or title of any land or tenement , though not controverted , to whom we think good , either for years or in fee. in so much as the passing a fine , in most cases now , is but mera fictio juris , alluding to the use for which it was invented , and supposing an action or controversie , where in truth none is , and so not onely operating a present bar , and conclusion against the parties to the fine , and their heirs ; but at five years end , against all others , not expresly excepted ( if it be levied upon good consideration and without covin ) as womencovert , persons under twenty one years , prisoners , or such as are out of the realm , at the time of its acknowledging . touching which , see the statutes anno rich. . cap. . — h. . cap. . — hen. . cap. . and eliz. cap. . this fine hath in it five essential parts , . the original writ taken out against the cognizor . . the kings license giving the parties liberty to accord , for which he hath a fine , called the kings silver , being accounted part of the crowns revenue . . the concord it self , which begins thus , et est concordia talis , &c. . the note of the fine , which is an abstract of the original concord , beginning thus . sc. inter r. querentem , & s. & t. uxorem ejus deforcientes , &c. ( where in stead of deforcientes , anciently impedientes was used ) . the foot of the fine ( haec est finalis concordia facta in curia domini regis apud westm , a die poschae in quindecim dies , anno &c. ) includes all , containing the day , year , and place , and before what justice the concord was made . coke , vol. . casu ●ey , fol. . this fine is either single or double ; a single fins is that by which nothing is granted or rendred back again by the cognizees to the cognizors , or any of them . a double fine contains a grant , and render back , either of some rent , common , or other thing out of the land , or of the land it self , to all or some of the cognizors for some estate , limiting thereby many times remainders to strangers , not named in the writ of covenant ; and a fine is sometimes called a double fine , when the lands do lie in several counties . again , a fine is in its effect , divided into a fine executed , and a fine executory ; a fine executed is such , as of its own force gives a present possession ( at least in law ) to the conizec , so that he needs no writ of habere facias seizinam , for execution of the same ; but may enter , of which sort is a fine sur cognizance de droit come ceo que il ad de son done , that is , upon acknowledgment , that the thing mentioned in the concord is , jus ipsius cogniza●i , ut illa quae idem habet de dono cognitoris . west , sect . . k. the reason is , because this fine passeth by way of release of that thing , which the conizee hath already ( at least by supposition ) by vertue of a former gift of the conizor . coke , lib. . case of fines , fol. . b. which is , in very deed , the surest fine of all . fines executory , are such as of their own force , do not execute the possession in the cognizees , as fines , sur cognizance de droit tantum , fines sur done , grant , release , confirmation , or render . for , if such fines are not levied , or such render made to those who are in possession at the time of the fines levied , the conizees must needs sue out writs of habere facias seisinam , according to their several cases , for obtaining their possessions , except at the levying such executory fines , the parties to whom the estate is limited , be in possession of the lands passed thereby : for in this case such fines do enure by way of extinguishment of right , not altering the estate or possession of the cognizee , but perhaps bettering it . west symbol . sect . . touching the form of these fines , it is to be considered , upon what writ or action the concord is to be made , and that is most commonly , upon a writ of covenant , and then there must first pass a pair of indentures between the cognizor and cognizee , whereby the cognizor covenants with the cognizee , to pass a fine to him , of such and such things , by a day limited : as these indentures are first in this proceeding , so are they said to lead the fine . upon this covenant , the writ of covenant is brought by the cognizee against the cognizo● , who thereupon yields to pass the fine before the judge , and so , the acknowledgment being recorded , the cognizor and his heirs are presently concluded , and all strangers ( not excepted ) after five years passed . if the writ , whereon the fine is grounded , be not a writ of covenant , but of warrantia chartae , or a writ of right , or of mesn , or of customs and services ( for of all these fines may also be founded , west , sect . . ) then this form is observed ; the writ is served upon the party that is to acknowledge the fine , and then he appearing , doth accordingly . see dyer , fol. . num . . fines are now onely levied in the court of common pleas at westminster , in regard of the solemnity thereof , ordained by the statute of edw. . before which time they were sometimes levied in the county courts , court barons , and in the exchequer , as may be seen in mr. dugdales origines juridiciales & alibi . this word fine sometimes signifies a sum of money , paid for an income to lands or tenements let by lease , anciently called gersuma , sometimes an amends , pecuniary punishment , or recompence upon an offence committed against the king , and his laws , or a lord of a mannor . in which case a man is said facere finem de transgressione cum rege , &c. reg. jud. fol. . a. of the diversity of these fines , see cromptons just . of peace , fol . b. , . and lamb. eiren. lib. . cap. . but in all these diversities of uses , it hath but one signification , and that is a final conclusion or end of differences between parties . and in this last sence , wherein it is used for the ending and remission of an offence , bracton hath it ( lib. . cap. . num . . ) speaking of a common fine , that the county pays to the king , for false judgments , or other trespasses , which is to be assessed by the justices in eyr before their departure , by the oath of knights , and other good men , upon such as ought to pay it ; with whom agrees the statute edw. . cap. . there is also a common fine in leets , see kitchin , fol. . vide common fine . fleta , lib. . cap. . and coke on littl. fol. . b. fines for alienation , are reasonable fines paid to the king by his tenants in cheif , for license to alien their lands , according to the stat. edw. . cap. . but see the stat. car. . cap. . fines pro licentia concordandi . anno hen. . cap. . see fine . fine force ( from the fr. fin , i. crafty or subtil , and ferce , i. vis ) seems to signifie an absolute necessity or constraint , not avoidable ; and in this sence it is used , old nat. br. fol. . and in the stat. hen. . cap. . in perkins , dower , fol. . plowden , fol. . coke , vol. . fol. . a. fine adnullando levato de tenemento quod fuit de antiquo dominico , is a writ to justices , for disannulling a fine levied of lands holden in ancient demesn , to the prejudice of the lord. reg. of writs , fol. . b. fine capiendo pro terris , &c. is a writ lying for one , who upon conviction by a jury , having his lands and goods taken into the kings hand , and his body committed to prison , obtains favor for a sum of money , &c. to be remitted his imprisonment , and his lands and goods to be re-delivered to him . reg. of writs , fol. . a. fine levando de tenementis tentis de rege in capite , &c. was a writ directed to the justices of the common . pleas , whereby to license them to admit of a fine for the sale of land holden in capite . reg. of writs , fol. . a. fine non capiendo pro pulchre placitando , is a writ to inhibit officers of courts to take fines for fair pleading . reg. of writs , fol. . fine pro redisseisina capienda , &c. is a writ lying for the release of one laid in prison for a re-disseisin , upon a reasonable fine . reg. of writs , fol. . finors of gold and silver , are those that purifie and part those mettals from other courser , by fire and water . anno hen. . cap. . they are also called parters in the same place , and sometimes departers . firdstole . see fridstole . firebare — quod sine dilatione levari & reparari fac . signa & firebares super montes altiores in quolibet hundredo : ita quod tota patria , per illa signa , quo●iescu●que necesse fuit , praemuniri potest , &c. ordinatio pro vigil . observand . a lynne usque yermouth , temp . ed. . perhaps from the saxon fyretor , a beacon or a high tower by the sea-side , wherein were continual lights , either to direct sailers in the night , or give warning of the enemy . firebote ( sax. ) signifies allowance of wood or estovers , to maintain competent fire for the use of the tenant . see haybote . firma , see ferme . ad firmam noctis was a custom or tribute paid towards the entertainment of the king for one night , according to domesday . comes meriton t. r. e. ( i. tempore regis edovardi conf. ) reddebat firmam unius noctis , i. provision or entertainment for one night , or the valne of it . firma regis , anciently , pro villa regia , seu regis manerio . spel. first-fruits or annates ( primitiae ) are the profits , after avoidance , of every spiritual living for one year , given in ancient time to the pope throughout all christendom , but by the stat. hen. . cap. . translated here in england to the king : for ordering whereof , there was a court erected hen. . cap. . but dissolved , mar. sess . . cap. . and since that time , though those profits are reduced again to the crown , eliz. cap. . yet was the court never restored , but all matters , formerly handled therein , were transferred to the exchequer . see annates . fish-garth ( anno hen. . cap. . ) a dam or wear in a river , made for the taking of fish ; especially in the rivers owse and humber . see garth . fithwite , rectiùs fihtewite , a sax. feoht , pugna , and wite , mulcta ; mulcta ob commissam pugnam in perturbationem pacis publicae . fithwite , i. si pugnaverint & percusserint se , quamvis sanguinem non extraxerint , prior habebit inde amerciamenta . ex registro priorat . de cokesford . fledwite or flightwite ( sax. flyht , fuga & wite , mulcta ) signifies , in our ancient laws , a discharge or freedom from amerciaments , when one , having been an outlawed fugitive , comes to the peace of our lord the king , of his own accord , or with licence . thus rastal . but quaere , whether it does not rather signifie a mulct or fine set upon a fugitive ? fléet ( sax. fleot , i. a place , where the water ebbs and flows , a running water ) a famous prison in london , so called from the river , on the side whereof it stands . to this prison , men are usually committed for contempt to the king , and his laws , or upon absolute command of the king , or some of his courts , or lastly for debt , when men are unable , or unwilling to satisfie their creditors . flem and fleth . ( sax. flema , an outlaw , and flet , a house ) in placito de quo warranto abbas de burgo dicit quod clamat annum & vastum & medium tempus per haec verba flem & fleth . trin. edw. . flemasiace ( from the sax. flema , a fugitive , or outlaw , and slean , to kill or slay ) by vertue of this word were claimed bona felonum , as appears upon a quo warranto , temp. edw. . see keilways rep. fol. . b. flemenesfirinthe ( rectiùs flymenafyrmthe , a sax. flyma , i. fugitivus & fyrmþe , susceptio , admissio . ll. inae . cap. . & . ll. etiam hen. . cap. , . ) signifies the receiving or relieving a fugitive . — cum sacha & socha , tol & team , infangenethof & flemenesfyrinthe & gridbreche , forstal , hamsocne , blodwite , ordel & oreste . carta edw. conf. monasterio de waltham . i finde this word often in ancient charters erroneously written : as flemeneferd , flemenefrit , flemnenefremeth , flemanisflit , flemenewurde , fremenefenda , and flemenesfreicthe . all doubtless intended for the same thing . flemenesfreme and flemenesfrenthe , interpretantur catalla fugitivorum . mich. h. . hertf. . coram rege . rot. . see flemenesfirinthe . flemeswite ( sax. ) signifies a liberty or charter , whereby to challenge the cattle , or amerciaments of your man a fugitive . rastals exposition of words . fleta writes it two other ways , viz. flemenesfrevie and flemenesfreicthe , and interprets it , habere catalla fugitivorum , lib. . cap. . see flem , and flemenesfirinthe . fletwite ( sax. ) est mulcta utlagatis & fugitivis indicta , ob veniam & pacem regis impetrandam . see fledwite . flidethrift , otherwise called shovegroate , is the same game we now call shovelboard , and mentioned hen. . cap. . this should rather have been called slidethrift . flitchtwite alias flitwite , ( from the sax. flit , convention or strife ) significat mulctam ob contentiones , rixas & jurgia impositam , & cui haec à principe conceduntur , potest in curiâ suâ cognoscere de hujusmodi transgressionibus , vel mulctas inde provenientes in curia regis , à delinquentibus exigere & sibimet retinere . thus spelman . flitwite , i. quod prior ●oneat placita in curia sua de contentionibus & conviciis hominum suorum & habeat inde amerciamenta . ex reg. priorat de cokesford . florences ( anno rich. cap. . ) a kinde of cloth so called . flotages ( fr. flotage , i. a floating or swimming on the top ) are such things , as by accident float or swim on the top of the sea , or great rivers . i have seen the word used in the commission of a water-bailiff . flotson alias flotzan ( from the sax. fleoten , i. natare ) is a word proper to the seas , signifying any goods lost by shipwrack , and which lie floating or swimming on the top of the water , which with jetson , lagon , and shares , are given to the lord admiral by his letters patent . jetson is any thing cast out of the ship , being in danger of wreck , and beaten to the shore by the waves , or cast on it by the mariners . coke , vol. . fol. . a. lagon , alias lagan vel ligam , is that which lies in the bottom of the sea. coke , ibid. shares are goods due to more by proportion . foder ( sax. fodre ) any kinde of meat for horses or other cattle . see forage . but among the feudists it is used for a prerogative that the prince hath , to be provided of corn , and other meat for his horses by his subjects , in his wars , or other expeditions . hotoman de verbis feudal : see fother . — nec non redditus qui dicuntur hidagium & foddercorn in perpetuum abbatibus ( de s. edmundo ) designentur . mon. angl. part. fol. . a. fogage ( fogagium ) fog or feg , rank grass not eaten in summer . ll. forestar . scot. cap. . folc-lands ( sax. ) copihold lands were so called in the time of the saxons , and charter-lands were called boc-lands . kitchin , . fundus sine scripto possessus ( says master somner ) censum pensitans annuum , & officiorum servituti obnoxius . terra popularis . folcmote and folkesmote ( sax. folc-gemot , i. conventus populi ) signifies ( according to lambert ) two kindes of courts , one now called the county court , the other the sheriffs turn . the word is still in use among the londoners , and signifies celebrem ex omni civitate conventum . stow in his survey . but manwood says , it is the court holden in london , wherein all the folk and people of the city did complain of the major and aldermen for any misgovernment . mr. somner in his saxon dictionary says , it is a general assembly of the people for considering and ordering matters of the commonwealth . omnes proceres regni & milites & liberi homines universi totius regni britanniae facere debent in pleno folcmote fidelitatem domino regi , coram episcopis regni . in leg. edw. confes . cap. . fold-course ( croke , part. fol. . ) see faldage . folgheres or folgeres ( from the sax. folger , i. to follow ) are properly followers ; but bracton ( lib. . tract . . cap. . ) says it signifies , eos qui aliis deserviunt . vide ll. hen. . cap. . footgeld . see foutgeld . foot of the fine . see chirographer . forage ( fr. fourrage ) fodder for cattle . cestes . sont , les covenants feates le vendredy prochein devant la feste de scinte jake l'apostle . edw. . perentre nichol de stone d'une parte & john de blount d'autre parte . — et le dit john trovera au dit nichol herbe & feyn & forage pour un hakeney & deux vaches , &c. penes wal. kirkham-blount bar. forathe . liberalis autem homo , i. pegen . odò crimen suum non sit inter majora , habeat fidelem hominem qui possit pro eo jurare juramentum , i. forathe . si autem non habet , ipsemet juret , nec perdonetur ei aliquod juramentum . constitut . canuti de foresta , sect . . forbarre or forebar , is to bar or deprive for ever . anno r. . cap. . and h. . cap. . forbusher of armor ( forbator ) si quis forbator arma alicujus susceperit , ad purgandum , &c. ll. aluredi . m. s. cap. . force ( fr. ) is most usually applied to the evil part , and signifies unlawful violence , west defines it to be an offence , by which violence is used to things or persons . parte . symbol . tit . indictments , sect . . where he also divides it into simple and compound : simple force is that which is so committed , that it hath no other crime annexed to it ; as if one by force do onely enter into another mans possession , without doing any other unlawful act . mixt force is when some violence is committed with such a fact , as of it self onely is criminal : as , if any by force enter into another mans possession , and kill a man , or ravish a woman , &c. he further divides it into true force , and force after a sort , and so proceeds to divers other branches , worth the reading , as forcible entry , forcible detaining , unlawful assembly , routs , riots , rebellions , &c. forcible detaining , or with-holding possession , is a violent act of resistance , by strong hand of men weaponed , or other action of fear in the same place or elswhere , by which the lawful entry of justices , or others , is bard or hindered . west , pa. . symbol . tit . indictments , sect . . cromptons just . of peace , fol. . forcible entry , ( ingressus manu forti factus ) is a violent actual entry into house or land , &c. or taking a distress being weaponed , whether he offer violence or fear of hurt to any there , or furiously drive any out of possession . west and crompton ut supra . it is also used for a writ grounded upon the stat. hen. . cap. . whereof read fitz. nat. br. at large , fol. . new book of entries , verbo , forcible entry , and lamberts eiren. lib. . cap . foreclosed ( anno hen. . cap. . ) barred ; shut out , or excluded for ever . part. inst . fol. . foregoers , were purveyors , otherwise called , going before the king in progress , to provide for him. anno edw. . cap. . forein ( fr. forain , lat. forinsecus ) is in our law joyned with divers substantives in senses , not unworthy the exposition : as forein matter , that is matter triable in another county ( pl. cor. fol. . ) or matter done in another county . kitchin , fol. . forein plea , is a refusal of the judge , as incompetent , because the matter in question is not within his jurisdiction . kitchin , f. . anno hen. . cap. . and ejusdem , cap. . & . forein answer , is such an answer as is not triable in the county where it is made . hen. . cap. . forein service , is that , whereby a mean lord holds over of another , without the compass of his own fee , ( broke , tit . tenures , fol. , , . num . . & . kitchin , fol. . ) or else that which a tenant performs either to his own lord , or to the lord paramount out of the fee. of which services , thus bracton , ( lib. . cap. . num . . ) item sunt quaedam servitia , quae dicuntur forinseca , quamvis sunt in charta de feoffamento expressa & nominata ; & quae ideo dici possunt forinseca , quia pertinent ad dominum regem , & non ad dominum capitalem , nisi cum in propria persona profectus fuerit in servitio , vel nisi cum pro servitio suo satisfecerit domino regi quocunque modo , & fiunt in certis temporibus , cum casus & necessitas evenerit , & varia habent nomina & diversa : quandoque enim nominantur forinseca , largè sumpto vocabulo , quoad servitium domini regis , quandoque scutagium , quandoque servitium domini regis , & ideo forinsecum dici potest , quia sit & capitur foris , sive extra servitium quod fit domino capitali . forein service , seems to be knights-service or escuage uncertain . perkins , reservation . . — salvo forinseco servicio . mon. angl. par. fol. . b. forein attachment , is an attachment of foreiners goods found within a liberty , or a city , for the satisfaction of some citizen , to whom the foreiner is indebted . at lempster ( anciently leominstre ) there is the borough and the forein ; which last , is within the jurisdiction of the mannor , but not within the bailiff of the boroughs liberty . forein opposer or apposer ( forinsecarum oppositor ) is an officer in the exchequer , to whom all sheriffs , after they are apposed of their sums out of the pipe office , do repair to be opposed by him of their green wax . he examines the sheriffs estreats with the record , and apposeth the sheriff , what he says to every particular sum therein . practise of the exchequer , fol. . see inst . fol. . forera , terra transversalis , seu capitalis , a head-land , or ( as they vulgarly call it ) hade-land . — uno capite abuttante super foreram rogeri attecastel . carta de anno edw. . penes tho. wollascot , arm. forest ( foresta ) signifies a great or vast wood ; locus silvestris & saltuosus . our law-writers define it to be locum , ubi ferae inhabitant vel includuntur . others say it is called foresta , quasi , ferarum statio , vel tuba mansio ferarum . manwood in his second part of forest laws , cap. . defines it thus . a forest is a certain territory of woody grounds , and fruitful pastures , priviledged for wilde beasts and fowls of forest , chase , and warren , to rest in and abide , in the safe protection of the king , for his princely delight ; meered and bounded with unremoveable marks , meers and boundaries , either known by matter of record or prescription ; replenished with wilde beasts of venary or chase , and with great coverts of vert , for succor of the said beasts . for preservation and continuance of which place , with the vert and venison , there are certain particular laws , priviledges , and officers , belonging onely thereto . its properties are these : first , a forest , as it is truly and strictly taken , cannot be in the hands of any , but the king ; because none hath power to grant commission to be a justice in eyre of the forest , but the king. ( yet the abbot of whitby had a forest by grant of henry the second , and king john , with all officers incident thereto . inst . fol. . & . ) the second property is the courts , as the justice seat , every three years ; the swainmote thrice every year , and the attachment , once every forty days . the third , may be the officers belonging to it , for preservation of the vert and venison : as first , the justices of the forest , the warden or keeper , the verderers , the foresters , agistors , regarders , bailiffs , bedels , and such like , which see in their places . see manwood , p 〈…〉 cap. . num . & . but the most especial court of a forest , is the swain-mote , which is no less incident to it , then the court of pye-powders to a fair. if this fail , then is there nothing of a forest remaining , but it is turned into the nature of a chace . there are reckoned to be in england sixty eight forests . for the ascertaining the meets and bounds of forests . see anno car. . cap. . forestagium , — et sint quieti de theoloneo & passagio , & de forestagio , & theoloneo aquarum & viarum forestam meam contingentium . carta edw. . m. . n. . seems to signifie some duty or tribute payable to the kings foresters ; as chiminage , or such like . forestal . see forstal . forester , ( forestarius , ) is a sworn officer of the forest , appointed by the kings letters patent to walk the forest both early and late , watching both the vert and the venison , attaching and presenting all trespassers against them , within their own bayliwick or walk ; whose oath you may see in crompton , fol. . and , though these letters patent are ordinarily granted , but quam diu se bene gesserint , yet they are granted to some and their heirs , who are hereby called foresters , or fosters in fee. ( idem fol. and . and manwood , part. . pa. . ) whom , in latin , grompton calls forastarium feudi , fol. . fore-judging or forjudging , ( forjudicatio , ) signifies a judgment , whereby a man is deprived , or put by the thing in question . bracton , ( lib. . tract . . ca. . ) has these words , — et non permittas quod a , capitalis , dominus feudi illius , habeat custodiam haeredis , &c. quia in curia nostra forisjudicatur de custodia , &c. so does kitchin use it , fol. . and old nat. br. fol. and . and the stat. ed. . ca. . and r. . ca. . forjudicatus , with authors of other nations , signifies as much as banished , or as deportatus in the ancient roman-law , as appears by vincentius de franchis descis . . forjudged the court , is , when an officer of any court is banished , or expeld the same , for some offence , or for not appearing to an action by bill filed against him ; and , in the later , he is not to be admitted to officiate , till he shall appear to the bill . anno hen. . ca. . — he shall lose his office , and be forjudged the court , &c. forjudicare interdum est male judicare , spel. forfang & forefeng , ( a sax. fore , ante , fangen , prendere , ) est captio obsoniorum , quae in foris aut nundinis ab aliquo fit , priusquam minister regis ea ceperit quae regi fuerint necessaria . antecaptio . — et sint quieti de wardwite , & de utlewe & forvenge & withfange , &c. carta hen. . hosp . sancti barth . lond. an. . forfeiture , ( forisfactura , ) comes of the french forfact , i. scelus ; but signifies with us , rather the effect of transgressing a penal law , then the transgression it self , as forfeiture of escheats , anno edw. . ca. . stat. de proditionibus . goods confiscated and goods forfcited differ . stam. pl. cor. fol. . where those seem to be forfeited that have a known owner , who has committed some offence , whereby he loseth his goods ; confiscate , are those , that are disavowed by an offender , as not his own , nor claimed by any other . but , forfeiture is rather more general , and confiscation particular to such as forfeit onely to the princes exchequer . full forfeiture , ( plena forisfactura ) otherwise called plenawita , is a forfeiture of life and member , and all else that a man hath . manwood , part. . pa. . forfeiture of marriage , ( foris factura maritagii , ) is a writ which lay against him , who , holding by knights-service , and being under age , and unmarried , refused her , whom the lord offer'd him , without his disparagement , and married another . fitz. nat. br. fol. . reg. of writs , fol. . b. forfeng , forefeng , & forbenge , quietantiam prioris prisae designat ; in hoc enim delinquunt burgenses londonenses cum prisas suas ante prisas regis faciunt . fleta , lib. . ca. . see forfang . forger of false deeds , ( from the french , forger . i. to beat on an anvil , or bring into shape , ) signifies either him that fraudulently makes and publishes false writings , to the prejudice of any mans right , or else the writ that lies against him , who commits this offence . fitz. nat. br. fol. . b. sayes , that a writ of deceit lies against him , who commits this offence ; and , the penalty of it is declared in the stat. eliz. ca. . forlandum , — et de duobus forlandis xvi denarios , sc . de forlando johannis wauker , quod jacet ante terram ecclesiae , viii denarios . mon. angl. part. fo . . formdon , ( breve de forma donationis , ) is a writ that lies for him , who has right to any lands or tenements , by vertue of any intail , growing from the stat. of westm . . ca. . there are three kinds of it , viz. forma donationis , or , formdon in the descender , formdon in the reverter , and formdon in the remainder . formdon in the descender lies for the recovery of lands , &c. given to one and the heirs of his body , or , to a man and his wife , and the heirs of their two bodies , or to a man and his wife , being cosin to the donor , in frank-marriage , and afterwards alienated by the donee . for , after his decease his heir shall have this writ against the tenant or alienee . fitz. nat. br. fo . , . and . makes three sorts of this formdon in the descender : the first is in the manner now express'd ; the second for the heir of a co-parcener , that aliens and dies ; the third he calls insimul tenuit , which lies for a co-parcner , or heir in gavelkind , before partition , against him to whom the other co-parcner or heir has alienated , and is dead . formdon in the reverter lies for the donor or his heirs , ( where land is entailed to certain persons , and their issue , with condition , for want of such issue , to revert to the donor and his heirs , ) against him to whom the donee alienateth , after the issue extinct , to which it was entailed , formdon in the remainder , lies , where a man gives lands in tayle , the remainder to another in tayle , and afterwards the former tenant in tayl dies without issue of his body , and a stranger abates , then he in remainder shall have this writ , reg. of writs , fol. . . of this see also the new book of entries , verbo , formdon , and coke on litt. fol. . b. fornagium , ( fr. fournage , ) — et dominus rex proinde amittit per an . de exitibus fornagii sui x. libras . pl. coram rege & ejus concil . in parl. ed. . in turr. lond. it signifies the fee taken by a lord of his tenants , bound to bake in his common oven , ( as is usual in the north of england , ) or for a permission to use their own ; also chimney-money , or harth-silver . see furnage . fornication , ( fornicatio , anno hen. . ca. . ) whoredom , the act of incontinency , in single persons ; for , if either party be married , it is adultery ; the first offence herein was punish'd with three moneths imprisonment , the second was made felony , by a rump-act . scobels collection , anno , ca. . suffex . praeceptum est vic. quod venire faciat juratores , qui in assisa nov. disseisinae dubium fecerunt sacramentum tangen . quandam agnetam quam dixerant esse filiam simonis de punde patris praedictae agnetae , & non dixerint esse haeredem . et in eo quod dixerint quod matilda , quae fuit mater agnetae , fuit uxor dicti simonis , & non dixerunt utrum patria habebat eam ut uxorem ejus . qui juratores dicunt quod praedictus simon semper tenuit dictam matildam ut uxorem suam , & dicunt quod nunquam dictam matildam , matrem dictae agnetae desponsavit ; sed dicunt quod praedictus simon aliquo tempore captus fuit per amicos praedictae matildae in camera fornicando cum ipsi matilda , per quod compellebatur unum de tribus facere , uxorem vel ipsam affidare , vel vitam suam amittere , vel ipsam matildam retro osculare ; ita quod ipse simon ibidem dedit fidem suam praedictae matildae , matri praedictae agnetae , quod ipsam desponsare debuit , sed ipsam nunquam alio modo desponsavit , &c. ideo praedicta matilda de kingsford soror praedictae simonis recepit seisin . de messuag . &c. in shepley , &c. adam gurdon & alii in misericordia . pasch . ed. . rot. . sussex . forprise , ( forprisum , from the fr. for , i. extra & prise captio , ) an exception , or reservation ; in which sense it is used in the stat. of exon , edw. . but there written horseprise : we still use it in conveyances and leases , wherein excepted and forprised is an usual expression . c'est indenture fet entre monsieur john blount chevalier le eysne dune part , & dame johan fouleshurst d autre parte , tesmoigne , que mesme les partes sont issint assentuz , accordez , & assurez , que john blount filts & heir a dict monsieur john deuy espousera , & prendera a femme isabel la file de dite dame du si briefe & dewe temps , que la dite dame a ces properes custages voidera ordeigner & feire , issint que le dit dame paye a dit monsieur john xx markes a temps de l'espousels , & xl . liures a certeyne de pay , compris en un obligation , le quelle le dite dame a fait a dit monsieur john , &c. pour quel payment le dit monsieur john enfeoffera ou fera enfeoffer les susdits john son fits , & la dite isabel de son manner jouste utteskesather , appelle blounts place , ensemblement ove toutes autres terres , tenements , rentes , services , &c. forprise le parke , &c. appelle blounts parke , &c. a avoir , & tener a dit john son fits , & isabel & les heyres que mesmes cely john des corps de mesme cely isabel engendera , &c. donnee south les seales , &c. le jour de st. luke , l' an de r. le roy henry disme . penes wal. kirkham-blount baronet . forrein , used for forreiner . anno & hen. . ca. . see forein . forschoke , ( derelictum , ) signifies originally as much as forsaken in our modern language . it is specially used in one of our statutes , for land or tenements seised by the lord , for want of services due from the tenant , and so quietly held and possessed beyond the year and day . as if we should say , that the tenant , who , seeing his land or tenements taken into the lords hand , and possessed so long , takes not the course appointed by law to recover them , does , in due presumption of law , disavow or forsake all the right he has to them ; and then such lands shall be called forschoke , sayes the stat. edw. . ca. unico . forses , ( catadupae , ) water falls . cam. brit. tit . westmorland . forstal , ( forestallamentum , ) is to be quit of amerciaments and cattel arrested within your land , and the amerciaments thereof coming , sayes the termes of the law : but , the learned spelman sayes , 't is viae obstructio , vel itineris interceptio ; with whom agrees coke on litt. fol. . b. in domesday 't is written foristel . — dedique eis forstallum , quod est ante portum ipsorum , liberum atque quietum , & terram quae jacet ex utraque parte ejusdem forstalli , &c. mon. angl. part. fol. . . forstalling , ( viarum obstructio , a sax. far . i. via , & stel , ) signifies the buying or bargaining for any corn , cattel , or other merchandise , by the way , before it comes to any market or fair to be sold , or by the way , as it comes from beyond the seas , or otherwise , toward any city , port , haven , or creek of this realm , to the intent to sell the same again at a more high and dear price . h. . stat. . west , part. . symbol . tit . inditements , sect. . — forstaller , ( in cromptons jurisd . fol. . ) is used for stopping a deer , broken out of the forest , from returning home again , or laying between him and the forest , in the way he is to return . fleta says , significat obtrusionem viae vel impedimentum transitus & fugae averiorum , lib. . ca. . see regrators & engrossers . who shall be adjudged a forstaller see in & edw. . ca. . forstal est , si aliquis portaverit halec vel hujusmodi res ad forum , & statim alius venerit & emerit ab ipso illas res ; ut carius vendat , prior habebit emendas ab ipso . ex reg. priorat . de cokesford . see part. inst . fol. . fortility , ( fortalitium vel forteletum , ) ( — within the towns and fortilities of berwick and carlile . anno hen. . ca. . ) signifies a fortify'd place , a bulwark , castle , or fortlet . fortlet , ( fr. ) a place of some strength , a little fort. old nat. br. fol. . fossa et furca . see furca . fossatum , ( lat. ) a ditch , or a place fenced with a ditch or trench . — ex dono hen. regis avi nostri unum fossatum tam largum , quod naves possint ire & redire a flumine de withonia usque ad tupholme . carta hen. . m. . where it seems to signifie a ( cut ) river . fosse-way , ( from fossus , digged ; ) was anciently one of the four grand high-wayes of england ; so called , because 't is conceav'd to be digg'd , or made passable by the ancient romans , or ditch'd at least on one side , but , now several inferior high-wayes are so called . see watlingstreet . foster-land , ( sax. ) land-given , assigned , or allotted to the finding of food or victuals , as in monasteries for the monks . fother or fodder ( sax. ) is a weight ( of lead ) containing eight pigs , and every pig one and twenty stone and a half , which is about a tun , or a common wain or cart load . speight in his annotations upon chaucer . i finde also in the book of rates , mention of a fodder of lead , which ( according to skene ) is about sixscore and eight stone . founder ( from fundere , to pour ) is he that melts metal , and makes any thing of it , by pouring or casting it into a mold . anno rich. . cap. . fourcher ( fr. fourchir , i. titubare lingua ) signifies a putting off , prolonging or delay of an action : and it appears no unpleasant metaphor ; for , as by stammering we draw out our speech , not delivering that we have to say , in ordinary time , so by fourching , we prolong a snte that might be ended in a shorter space . in westm . . cap. . you have these words , coparceners and joyntenants shall no more fourch , but onely shall habe one essoyn , &c. and anno edw. . cap. . it is used in the same sence . — the defendants shall be put to answer without fourching , &c. anno hen. . cap. see part. inst . fol. . foutgeld or footgeld ( compounded of two german words , fous , i. pes , and gyldan , i. solvere , q. pedis redemptio ) signifies an amercement for not cutting out the balls of great dogs feet in the forest . see expeditate . and to be quit of footgeld , is a priviledge to keep dogs within the forest , unlawed , without punishment or control . cromptons jurisd . fol. . manwood , part . pag. . this priviledge was allowed in assis . forest . de pickring . edw. . fowles of warren . see warren . frampole fences , are such fences as any tenant , in the mannor of writtel in essex , hath against the lords demeans ; whereby he hath the wood growing on the fence , and as many trees or poles , as he can reach from the top of the ditch with the helve of his ax , towards the repair of his fence . i have heard the late chief justice bramston , whilest he was a practiser and steward of this court , did acknowledge he could not finde out the reason why these fences were called frampole . fram in saxon signifies from , which seems to make out the etimology ; or it may come from the sax. fremful , profitable . franchise ( fr. ) is sometimes taken for a priviledge or exemption from ordinary jurisdiction , and sometimes an immunity from tribute . it is either personal or real , ( cromp. jurisd . fol. . ) that is , belonging to a person immediately , or else by means of this or that place , or court of immunity , whereof he is either cheif , or a member . in what particular things franchises commonly consist , see britton , cap. . franchise royal ( anno rich. . cap. . and hon. . cap. . in fine ) seems to be that where the kings writ runs not , as chester and durham , which are called seignories royal , anno hen. . cap. . and formerly tyndall and examshire in northumberland . hen. . cap. . franchise royal ( according to another author ) is where the king grants to one and his heirs , that they shall be quit of toll , or such like . see franchise in the new book of entries , and bracton , lib. . cap. . see sac. francigena . see engleceric . francling . qui liberè tenet . a freeholder . vide fortescu de ll. angl. cap. . frank-almoin ( fr. franc-ausmone ) is a tenure or title of lands or tenements bestowed upon god , that is , given to such people , as devote themselves to the service of god , in pure and perpetual alms ; whence the feoffors or givers , cannot demand any terresti-service , so long as the lands remain in the hands of the feoffees . grand custumary of norm . cap. . of this you may read bracton at large , lib. . cap. . & . and fitz. nat. br. fol. . new book of entries , verbo , frankalmoin . but britton ( cap. . num . . ) makes another kinde of this land which is given in alms , but not free alms , because the tenants in this are tied in certain services to the feoffor . frank-bank . see freebench . frank-chase ( fr. ) is a liberty of free chase , whereby all men , having ground within that compass , are prohibited to cut down wood , &c. without the view of the forester , though it be his own demesn . cromp. jurisd . fol. . frank-fée ( feudum liberum ) is ( by broke , tit . demesn , num . . ) thus expressed ; that which is in the hand of the king or lord of any mannor , being ancient demesn of the crown ( viz. the demesns ) is called frank-fee , and that in the tenants hands is ancient demesns onely . see reg. of writs , fol. . a. which says , that is frank-fee which a man holds at the common law to him and his heirs , and not by such service as is required in ancient demesn , according to the custom of the mannor . and that the lands which were said to be in the hands of king edward the confessor , at the making of domesday book , is ancient demesn , and all the rest frank-fee ; wherewith fitzherbert agrees ( nat. br. fol. . ) so that all the lands in the realm by this rule , are either ancient demesn or frank-fee . another defines frank-fee to be a tenure in fee-simple of lands , pleadable at the common law , and not in ancient demesn . feudum francum est , pro quo nullum servitium praestatur domino , says fachineus , lib. . cap. . frank-ferm ( firma libera ) is land or tenement wherein the nature of fee is changed by feosment out of knights-service , for certain yearly services ; and whence neither homage , wardship , marriage , nor relief may be demanded , nor any other service not contained in the feofment . britton , cap. . num . . see fee-farm . frankfold , is where the lord hath the benefit or folding his tenants sheep within his mannor , for the manuring his land. keil . rep. fol. . a. quod vassallis olim & usufructuariis denegatum , maneriorum & praediorum dominis solum competebat , says mr. somner . it is compounded of the fr. franc , i. free ; and the sax. fald , i. a fold . see faldage . frank-law ( libera lex ) is the benefit of the free and common law of the land. he that for any offence , as conspiracy , &c. loseth his franc-law , is said to fall into these mischeifs ; first , that he may never be empanell'd upon any jury or assise , or otherwise used in testifying any truth . next , if he have any thing to do in the kings court , he must not approach it in person , but appoint his atturney . thirdly , his lands , goods , and chattels , must be seised into the kings hands , and his lands must be estreaped , his trees rooted up , and his body committed to prison . thus crompton in his just . of peace , fol. . who cites the book of assises , fol. . see conspiracy . frank-marriage ( liberum maritagium ) is a tenure in tail-special , growing from these words in the gift . sciant , &c. me t. b. de o. dedisse & concessisse , & presenti charta mea confirmasse a. b. filio meo & mariae uxori ejus , filiae verae c. d. in liberum maritagium unum messuagium , &c. west , par . . symbol . lib. . sect . . the effect of which words is , that they shall have the land to them , and the heirs of their bodies , and shall do fealty to the donor , until the fourth degree . glanvile , lib. . cap. . and bracton , lib. . cap. . num . . where he divides maritagium , in liberum , & servitio obligatum . see marriage . fleta gives this reason why the heirs do no service until the fourth degree , ne donatores vel corum haercdes per homagii receptionem , a reversione repellantur . and why , in the fourth descent and downward , they shall do service to the donor , quia in quarto gradu vehementer praesumitur , quod terra non est pro defectu haeredum donatoriorum reversura , lib. . cap. . frank-pledge ( from the fr. frank , i. liber & pleige , i. fidejussor ) signifies a pledge or surety for freemen . the ancient custom of england for preservation of the publick peace , was , that every free-born man , at fourteen years of age ( religious persons , clerks , knights , and their eldest sons excepted ) should finde surety for his truth , towards the king and his subjects , or else be kept in prison ; whereupon a certain number of neighbors became customably bound one for another , to see each man of their pledge forth coming at all times , or to answer the transgression committed by any gone away . so that whoever offended , it was forthwith enquired in what pledge he was , and then those of that pledge , either brought him forth within thirty one days to his answer , or satisfied for his offence . this was called frank-pledge , and the circuit thereof decenna ; because it commonly consisted of ten housholds ; and every particular person thus mutually bound for himself , and his neighbors , was called decennier ; because he was of one decenna or other . this custom was so kept , that the sheriffs , at every county court , did from time to time take the oaths of young ones , as they grew to fourteen years of age , and see , that they were setled in one dozein , or another ; whereupon this branch of the sheriffs authority was called visus franci-plegii , view of frank-pledge . see the statute for view of frank-pledge , anno edw. . see decennier , leet , view of frank-pledge , and friborgh . what articles were wont to be enquired of in this court , see in horns mirror , lib. . cap. de la veneu des francs-pleges ; and what those articles were in ancient times , see in fleta , lib. . cap. . see also part. inst . fol. . — and if there be ony persone within the warde , that is not under franc-pledge , that is to saye under loue and lawe , &c. out of an ancient charge of the quest of wardmore in every ward in london . frée-bench ( franc-bank , francus bancus , i. sedes libera ) signifies that estate in copihold lands which the wife , being espoused a virgin , hath , after the death of her husband , for her dower , according to the custom of the mannor ( kitchin , fol. . ) as at orleton in the county of hereford , the relict or a cop holdtenant , is admitted to her free-bench , that is , to all her husbands copihold lands , during her life , the next court after her husbands death . bracton , lib. . tract . . cap. . num . . hath these words . consuetudo est in partibus illis , quod uxores maritorum defunctorum habeant francum bancum suum de terris sockmannorum , & tenent nomine dotis . fitzherbert calls it a custom , whereby in certain cities the wife shall have her husbands , whole lands , &c for her dower . nat. br. fol. . see plowden , casu newis , fol. . of this free-bench , several mannors have several customs ; as it is the custom of the mannors of east and west enborn in the county of berks● that if a customary tenant dye , the widow shall have her free-bench in all his copihold lands , dum sola & casta fuerit , but if she commit incontinency , she forfeits her estate ; yet if she will come into the court riding backward on a black ram with his tail in her hand , and say the words following , the steward is bound , by the custom , to re-admit her to her free-bench . here i am , kiding upon a black ●am , like a whore as i am . and for my crinoum crancum have lost my binkum bankum . and for my tails game , have done this worldly shame . therefore i pray you ●r steward let me have my land again . the like custom is in the mannor of tor in devonshire , and other parts of the west . free-bord , ( francbordus , ) — et totum hoscum quod vocatur brendewode , cum francbordo duorum pedum & dimid . per circuitum illius bosci — mon. angl. part. fol. . a. in some places more , in some less , is claimed as a free-bord , beyond , or without the fence . frée-chappel ( libera capella ) is ( in the opinion of some ) a chappel founded within a parish for the service of god , by the devotion and liberality of some good man , over and above the mother church , to which it was free for the parishioner to come , or not , and endowed with maintenance by the founder , and therefore called free. others say , and more probably , that those onely are free-chappels , which are of the kings foundation , and by him exempted from the jurisdiction of the ordinary ; but the king may licence a subject to found such a chappel , and by his charter exempt it from the ordinaries visitation also . that it is called free , in respect of its exemption from the jurisdiction of the diocesan , appears by the register of writs , fol. and . these chappels were all given to the king with chantries also , anno edw. . ca. . free-chappel of st. martin le grand . anno ed. . ca. . & ed. . ca. . freedstoll . see fridstoll . freehold , ( liberum tenementum , ) is that land or tenement which a man holds in fee , fee-tayl , or for term of life . bracton , lib. . ca. . and it is of two sorts ; freehold in deed , and freehold in law : the first is the real possession of land or tenement in fee , fee-tail , or for life ; the other is the right that a man has to such land or tenement before his entry or seisure . freehold is likewise extended to those offices , which a man holds either in fee , or for life . britton defines it to this effect , franktenement is a possession of the soyl or services issuing out of the soyl , which a freeman holds in fee , or at least for life , though the soyl be charged with free-services , ca. . freehold is sometimes taken in opposition to villenage . lambert , ( in his explication of saxon words , ) verbo , terra ex scripto , says , land , in the saxons time , was called , either bockland , that is , holden by book or writing ; or folckland , held without writing : the former he reports was held with far better condition , and by the better sort of tenants , as noblemen and gentlemen , being such as we now call freehold : the later was commonly in the possession of clownes , being that which we now call , at the will of the lord. r●g . judicial , fol. . a. sayes , that he , who holds land upon an execution of a statute-merchant , until he be satisfi'd the debt , tenet ut liberum tenementum sibi & ussignatis suis ; and fol. , the same of a tenant per elegit ; where , i conceive , the meaning is , not that such tenants are freeholders , but , as freeholders for their time , until they have receiv'd profits to the value of their debt . freeholders in the ancient laws of scotland , were called milites , according to skene , verbo , milites . frenchman , ( francigena , ) was anciently used for every stranger . bracton , lib. . tract . . ca. . see englecery . frendles man , was the old saxon word for him whom we call an out-law ; the reason was , because he was , upon his exclusion from the kings peace and protection , deny'd all help of friends after certain days . nam forisfecit amicos . bracton , lib. . tract . . ca. . num . . says thus ; talem vocant angli utlaugb , & alio nomine antiquitus solet nominari friendlesman , & sic videtur , quod forisfecit amicos ; & unde , si quis talem post utlagatariam & expulsionem scienter paverit , receptaverit , vel scienter communicaverit aliquo modo , vel occultaverit , eadem paena puniri debet , qua puniretur utlagatus ; ita quod careat omnibus bonis suis & vita , nisi rex ei parcat de gratia sua . frendwite vel infeng , significat quietantiam prioris prisae ratione convivii . fleta , lib. . ca. . fresh disseisin , ( from the fr. fraiz . i. recens , & disseisir . i. possessione ejicere , ) signifies that disseisin , which a man may seek to defeat of himself , and by his own power , without the help of the king or judges , and which is not above fifteen dayes old . britton . ca. . of this you may read bracton , lib. . ca. . at large , concluding , that it is arbitrary . fresh fine , is that , which was levied within a year past . westm . . ca. . anno edw. . fresh force , ( frisca fortia , ) is a force done within fourty dayes , fitz. nat. br. fol. . for , if a man be disseis'd of any lands or tenements within any city or borough , or deforced from them after the death of his ancestor , to whom he is heir , or after the death of his tenant for life , or in tayl , he may , within fourty dayes after his title accrued , have his remedy by an assise or bill of fresh force . see old. nat. br. fol. . a. fresh sute , ( recens insecutio , ) is such a present and active following an offender , as never ceases , from the time of the offence committed or discover'd , until he be apprehended : and , the benefit of the pursute of a felon , is , that the party pursuing shall have his goods restored him , whereas otherwise they are the kings ; of this see stamf. pl. cor. lib. . ca. and . where you shall find what sute is to be accounted fresh , and what not . the same author , ( lib. . ca. . ) saith , that fresh sute may continue for seven years . see cokes reports , lib. . rigeways case . fresh sute is either within the view or without . for manwood sayes , that upon fresh sute within the view , trespassers in the forest may be attached by the officers pursuing them , though without the limits of the forest , pa. . ca. . num . . friar , or frier , ( lat. frater . fr. frere . i. a brother ) an order of religious persons , of which these are reckoned the principal branches , anno h. . ca. . viz. minors , grey-friers , or franciscans ; augustins ; dominicans , or black-friers ; and white-friers , or carmelites , from which the rest descend . see zecchius de repub. eccles . p. , and linwood , tit . de relig . domibus , c. . verbo , sancti augustini . friburgh , alias frithborg , ( from the sax. frith . i. pax. and borge . i. fidejussor , ) is the same with francpledge , the one being in use in the saxons time , the other since the conquest ; wherefore , for the understanding this read frankpledge , and the laws of king edward , set out by lambert , fol. . in these words ; praeterea est quaedam summa & maxima securitas , per quam omnes statu firmissimo sustinentur , viz. ut unusquisque stabiliat se sub fidejussionis securitate , quam angli vocant , ( freoborghes , ) soli tamen eboracenses dicunt eandem ( tienmannatale ) quod sonat latine decem hominum numerum , &c. bracton mentions fridburgum , lib. . tract . . ca. . in these words , archiepiscopi , episcopi , comites & barones & omnes qui habent soc & sak tol & team , & hujusmodi libertates , milites suos & proprios servientes , armigeros , &c. dapiferos , & pincernas , camerarios , coquos , pistores , sub suo fridburgo habere debent . item & isti suos armigeros & alios sibi servientes ; quod si cui forisfecerint , ipsi domini sui habeant eos ad rectum , & si non habuerint , solvant pro eis forisfacturam . et sic observandum erit de omnibus aliis qui sunt de alicujus manupastis . where we learn the reason , why great men were not combined in any ordinary dozein ; because they were a sufficient assurance for themselves , and for their menial servants , no less then the ten were one for another in ordinary dozeins . see skone verbo freiborgh . fleta writes it frithborgh , and useth it for the principal man , or at least for one of the dozein , lib. . ca. . see hoveden parte poster . annal. in hen. . fol. . but spelman makes a difference between friborg and frithborg , saying , the first signifies libera securitas , or fidejussio ; the other pacis securitas . fridstoll et frithflow , ( from the sax. frith , pax ; stol , sedes , cathedra , stow , locus ) a seat , chair , or place of peace . in the charter of immunities granted to the church of st. peter in york , confirmed anno hen. . fridstol , is expounded cathedra quictudinis & pacis : of these there were many others in england , but , the most famous at beverley , which had this inscription , haec sedes lapidea freedstoll dicitur , i. pacis cathedra , ad quam reus fugiendo perveniens , omnimodam habet securitatem . camd. frier observant , ( frater observans , ) is a branch of the franciscans , which are minores tam observantes quam conventuales & capuchini . these we find spoken of an. hen. . ca. . who are called observants , because they are not combined together in any cloister , covent , or corporation , as the conventuals are ; but , onely by themselves to observe the rules of their order , and more strictly then the conventuals do ; and , upon a singularity of zeal , separate themselves from them , living in certain places of their own chusing ; of whom you may read hospinian de orig. & progress . monachatus . ca. . fol. . friperer , ( fr. fripier . i. interpolator , ) one that furbushes and scowers up old apparel to sell again . it is used for a bastardly kind of broaker . anno jac. ca. . frithbrech , ( sax. ) pacis violatio . ll. ethelredi . ca. . see frythe . frithburgh . see friburgh . frithmote — per frithmote jo. stanley ar. clamat capere annuatim de villa de olton , quae est infra feodum & manerium de aldford infra forestam de la mara x. sol . quos comites cestriae ante confectionem cartae praedictae solebant capere . pl. in itin. apud cestriam . hen. . frithsocne et frithsoke , ( frith . i. pax. & socne , libertas , ) tuendae pacis jurisdictio ; or , ( according to fleta ) libertas habendi franci plegii ; or , immunitatis locus . froborg , or freoburgh , ( from the sax. freo , i. free ; and borge . i. fidejussor . ) see friburgh and franc-pledge . frodmortel , rectius freomortel , ( from the sax. freo , free , and morþ doed , murder ) an immunity or freedom granted for murder or man-slaughter . carta adelstani regis , sancto wilfrido de rippon concessa . wyt all that es and es gan yat ik king adelstan as given al 's frelith as i may and to ye capitel of seint wilfrai of my free devotion yair pees at rippon on ilke side the * kyrke a mile for all ilk deeds and ylke agyle and within yair kyrke yate at ye stan yat * grithstole hate . within ye kyrke dore and ya quare pair have pees for les and mare . ilkan of yis stedes sal have pees of frodmortel and il deedes yat yair don is , tol , tem , with * iron and with water deme , and yat ye land of seint wilfrai of alkyn * geld fre sal be ay . at nai nan at langes me to in yair * herpsac sal haue at do and for ik will at yai be saue i will at yai alkyn fréedome haue : and in all thinges be al 's frée as hert may thinke , or eygh may sée at te power of a kinge masts make free any thynge . and my seale haue i sat yerto for i will at no man it undo . frumgyld ( sax. ) prima capitis aestimationis pensio vel solutio . the first payment made to the kinred of a slain person , in recompence of his murder . ll. aedmundi , cap. ult . frum-stol ( sax. ) sedes primaria , the cheif seat or mansion-house ; by some called the fome-stal . ll. inae regis , cap. . frussura ( from the fr. froissure ) a breaking down or demolishing — dedi eis nonam garbam tam in frussuris , quae de novo fiunt , quam in &c. mon. angl. par. fol. . b. frustrum terrae , a small peece of land. residuum quiddam praeter acras numeratas vel campum mensuratum . cum in domesday frustrum terrae accipiatur pro ampla portione seorsum à campo , villâ , manerio jacenti . domesday , tit . hantisc . rex . abedestone . in insula habet rex unum frustrum terrae unde exemit . vomeres . lego frustum . spelm. fryth . sir edward coke ( on littl. fol. . b. ) expounds it , a plain between two woods , a lawnd . chaucer uses it for a wood. camden ( in his britan. ) for an arm of the sea , or great river , — maketh his issue into the estuary or frith of thames . smith ( in his englands improvement ) makes it signifie all hedg-wood , except thorns . how to reconcile these , i know not ; but am sure the saxon friþ , signifies peace . frythborgh , from the sax. friþ , i. pax , and borge , fidejussor . — et sint quieti de frythborgh , & de blodewite , fithwyte , & ferdwyte , &c. record . pasch . hen. . rot. . it might here signifie a freedom from giving security of the peace . fuage or focage ( a foco ) in the reign of edward the third , the black prince of wales , having aquitain granted him , laid an imposition of fuage or focage upon the subjects of that dukedom , viz. a shilling for every fire , called herth-silver . rot. parl. edw. . fuer ( fr. fuir , lat. fugere ) though it be a verb , yet it is used substantively , and is twofold , fuer en feit , ( in facto ) when a man does apparently and corporally flie ; and fuer en ley ( in lege ) when , being called in the county , he appears not until he be outlawed , which is flighs in the interpretation of law. stamf. pl. cor. lib. . cap. . fugacia , signifies a chase , and is all one with chasea . charta matildis imperatricis miloni de glouc. fugitives goods ( bona fugitivorum ) are the proper goods of him that flies upon felony , which , after the flight lawfully found , do belong to the king , or lord of the mannor . coke , vol. . fol. . b. see waif . fumage ( fr. ) fumagium ) dung , or a manuring with dung. — et sint quieti de fumagio & maremio cariando , &c. carta r. . priorat . de hertland . pat. ed. . par . . m. . fumathoes or fumadoes ( car. . cap. . ) our pilchards , garbaged , salted , hanged in the smoak , and pressed , are so called in italy and spain , whither they are carried in great numbers . furca ( seucatefurcia , & fossa , i. gallows and pit. in ancient priviledges it signified a jurisdiction of punishing felons , that is , men with hanging ; women with drowning : of which last , take this notable example out of the records of rochester church , in the time of gilbert , bishop there , who flourished under richard the first . anno . item duo mulieres venerunt in villam de suffliete , quae furatae fuerunt multos pannos in villa de croindone , & secuti sunt eas homines ejusdem villae de croindone , quorum pannos furtiv● asportaverunt usque in villam de suffliete , & ibi captae fuerunt & incarceratae , & habuerunt judicium suum in curia de suffliete , ad portandum calidum ferrum , quarum una fuit salva , & altera damnata , unde submersa fuit in bikepole . et hoc totum contigit tempore gilberti domini episcopi , & in quolibet judicio fuerunt coronarii domini regis . et paulus de stanes fuit tunc cacherellus de hundredo de acstane . et per illud tempus robertus de hecham monachus fuit custos de manerio de suffliete , & ad mulieres judicandas fuit dominus henricus de cobeham , & alii plures homines , discreti homines de patria . fossa is taken away , but furca remains , says sir edward coke in his inst . fol. . furlong ( sax. furlang ) is a quantity of ground , containing for the most part , forty perches , or poles in length , and every pole sixteen foot and a half , eight of which furlongs make a mile . anno edw. . cap. . it is otherwise , the eighth part of an acre ; yet i finde in an old book , printed in henry the eighth's time , that six hundred foot , by fivefcore to the hundred , make a furlong . see acre . in the former signification , the romans call it stadium , in the later jugerum . furlong , is sometimes used for a piece of land of more or less acres . omnibus christi fidel. — johannes blount de eye arm. — dedit thomae croft & francisco lovel arm. unum forlongum terrae arabilis continen . per aestimationem quatuor acras , &c. dat. jan. eliz. furnage ( furnagium , fr. fournage ) est tributum quod domino furni a sectatoribus penditur ob furni usum . multis enim in locis tenentur vasalli ad coquendum panes suos in furno domini . est etiam lucrum seu emolumentum quod pistori conceditur in pistionis sumptus & mercedem . et tunc potest pistor de quolibet quarterio frumenti lucrare den. & furfur , & duos panes ad furnagium . assisa panis & cervisiae . anno hen. . see fornagium . furr ( from the fr. fourer , i. pelliculare , to line with skins ) the stat. hen. . cap. . mentions divers kindes of it ; as sables , which is a rich fur of colour between black and brown , being the skin of a beast called a sable , of bigness between a polecat , and an ordinary cat , and of fashion like a polecat , bred in russia , but most and best in tartaria . lucerns , which is the skin of a beast so called , being near the bigness of a woolf , of colour between red and brown , and mingled with black-spots , bred in muscovia and russia , and is a very rich fur. genets , that is the skin of a beast so called , of bigness between a cat , and a weezle , mailed like a cat , and of that nature , bred in spain ; whereof , there are two kindes , black and grey , and the black the more precious , having black spots upon it hardly to be seen . foins is of fashion like the sable , bred in france , for the most part ; the top of the fur is black , and the ground whitish . martern , is a beast very like the sable , the skin something courser , the best are in ireland . miniver , is nothing but the bellies of squirrels , as some say ; others say it is a little vermin , like a weezle , milk white , and comes from muscovy . fitch , is that which we otherwise call the polecat . shanks are the skin of the shank or leg , of a kinde of kid , which bears the fur , we call budge . calaber , is a little beast in bigness near a squirrel , of colour grey , and bred most in high germany . fustic , a kinde of wood , which dyers use , and is brought from barbadoes , jamaica , &c. mentioned car. . cap. . g. gabel ( gabella , gablum . sax. gafol alias gafel , fr. gabelle , i. vectigal ) hath the same signification among our old writers , as gabelle hath in france ; for camden ( in his britan , pag. . ) speaking of wallingford , says , continebat hagas , i. domos reddentes novem libras de gablo . and pag. . of oxford , thus , haec urbs reddebat pro telonio & gablo & aliis consuctudinibus per annum regi quidem viginti libras & sex sextarios mellis ; comiti verò algaro decem libras . gabella ( as cassanaeus defines it , de consuetud . burgund . pag. ) est vectigal quod solvitur pro bonis mobilibus , id est , pro his quae vehuntur . — distinguishing it from tributum , quia tributum est propriè , quod fisco vel principi solvitur pro rebus immobilibus . gafold-gyld ( sax. ) the payment or rendring of tribute or custom . also usury . gafol-land alias gafulland ( sax. ) terra censualis ) land liable to tribute or tax , ; rented land , or land letten for rent . sax. dict. gage ( fr. ) lat. vadium ) signifies a pawn or pledge . glanvile , lib. . cap. . thus , quandoque res mobiles ponuntur in vadium , quandoque res immobiles — and a little after , — invadiatur res quandoque ad terminum , quandoque sinc termino . item quandoque invadiatur res aliqua in mortuo vadio , quandoque non — though the word gage be retained , as it is a substantive , yet as it is a verb , use hath turned the g. into w. so as it is oftner written wage ; as to wage deliverance , i. to give security , that a thing shall be delivered : for , if he that distrained , being sued , have not delivered the cattle that were distrained , then he shall not onely avow the distress , but gager deliverance , i. put in surety , that he will deliver them . fitz. nat. br. fol. . d. and f. yet in some cases he shall not be tied to make this security , as if the cattle died in pound . kitchin , fol. . or if he claim a propriety in the cattle sued for . to wage law , see law. see mortgage . gager deliverance . see gage . gager del ley. see wage , and wager of law. gagers . see gawgeors . this word is mentioned in anno car. . cap. . gainage ( lat. wainagium , i. actus plaustri , vel plaustri apparatus . fr. gaignage , i. the gain or crop of tilled or planted grounds ) signifies the draught-oxen , horses , wain , plough , and furniture for carrying on the work of tillage , by the baser sort of soke-men and villains ; and sometimes the land it self , or the profit raised by cultivating it . bracton , lib. . cap. . ( speaking of lords and servants ) says — ut si eos destruant , quod salvum non possit eis esse wainagium suum — and again , lib. . tract . . cap. . — villanus non amerciabitur , nisi salvo wainagio suo . for , anciently , as it appears both by mag. char. cap. . and other books , the villain , when amerced , had his wainage free , to the end , the plough might not stand still : and the law for the same reason , does still allow a like priviledge to the husbandman , that his draught-horses and oxen are not , in many cases , distrainable . this in magna charta , cap. . is called wainage . i finde in old nat. br. fol. . — the writ was abated for that the oxgang is always of a thing that lies in gainor . this word was onely used of arable land , because they that had it in occupation , had nothing of it , but the profit , and fruit raised of it by their own labor , towards their sustenance , nor any other title , but at the lords will. gainor again in the same book , fol. . is used for a sokeman , that hath such land in his occupation . in the chapter of the grand custumary — geigneurs are ruricolae qui terras elecmozynatas possident . and britton useth gainer , to plough or till , fol. . a. and . b. west , pa. . symb. tit . recoveries , sect . . says a praecipe quod reddat lies not for such and such things — for they are not in demesn , but in gain , &c. lastly , in the statute of distresses in the exchequer , anno . hen. . i finde these words , no man of religion , nor other , shall be distrained by his beasts that gain the land. see wainage . gainery , ( fr. gaignerie ) tillage or tilling , or the profit raised of tillage , or of the beasts used therein . i have seen an old lease that demised omnes terras : prat . & pastur . in m. vulgo vocat . le gainerie , &c. gainure ( westm . . cap. . & . ) tillage . see gainerie . galege ( galicae ) from the fr. galloches , which signified of old a certain shoo , worn by the gauls in foul weather , as at present the signification with us , does not much differ . it is mentioned anno edw. . cap. . and & hen. . cap. . gallihalpens , was a kinde of coyn , which with suskins and doitkins was prohibited by the stat. hen. . cap. . gang-week . see rogation week . gaol , from the fr. geole , i. caveola . a cage for birds ; and thence metaphorically used for a prison : so geolier , whom we call gayler or gaoler . garb ( garba ) fr. garbe alias gerbi , i. fascis ) signifies a bundle or sheaf of corn. charta de foresta , cap. . and garba sagittarum is a sheaf of arrows . skene , verbo , garba . de omni annona decima garba deo debita est . ll. edovardi conf. cap. . garbles ( anno jac. cap. . ) signifie the dust , soil , or uncleanness , that is severed from good spice , drugs , &c. garbling of bow-staves , anno rich. . cap. . is the sorting or culling out the good from the bad ; as garbling of spice , drugs , &c. ( jac. cap. . ) is nothing but to purifie it from the dross and dust that is mixed with it ; and to sever the good from the bad : it may come from the italian garbo , that is fineries or neatness . see inst . fol. . garbler of spices ( anno jac. cap. . ) is an officer of antiquity in the city of london , who may enter into any shop , ware-house , &c. to view and search drugs , spices , &c. and to garble , and make clean the same . garderobe . see wardrobe , and a inst . fol. . gard ( fr. garde , lat. custodia ) signifies a custody or care of defence ; but hath divers applications ; sometimes to those that attend upon the safety of the prince , called the life-guard , and yeomen of the gard ; sometimes to such as have the education and guardianship of infants or idiots ; sometimes to a writ touching wardship ; of which there were three sorts , one called droit de gard , the second ejectment de gard , the third ravishment de gard . fitz. nat. br. fol. , . see ward and gardian . gardian or guardian ( fr. gardien , sax. ●ardung , lat. custos ) signifies generally him that hath the charge or custody of any person or thing ; but most notoriously him that hath the education or protection of such people as are not of sufficient discretion to guide themselves , and their own affairs , as children and ideots , being indeed as largely extended , as both tutor and curator among the civilians . for whereas tutor , is he that hath the government of a youth , until he come to fourteen years of age ; and curator , he that hath the disposition , and ordering of his substance afterward , until he attain to twenty five years , or that hath the charge of a frantick person , during his lunacy ; we use for both these a guardian onely , of which , we have three sorts in england ; one ordained by the father in his last will , another appointed by the judge afterward : the third cast upon the minor by the law and custom of the land. but the ancient law in this case is , in a great measure , altered by the statute of car. . cap. . which ordains that , where any person hath , or shall have any childe or children under the age of twenty one years , and not married at the time of his death , it shall be lawful for the father of such childe or children , whether born at the time of the decease of the father , or at that time in ventre sa mere , or whether such father be within the age of twenty one years , or of full age , by déed executed in his life time , or by his last will and testament in writing , in the presence of two or more credible witnesses , to dispose of the custody and tuition of such childe or children , for , and during the time , be , or they shall remain under age , or any lesser time , to any person , or persons in possession or remainder , other then popish recusants ; and such disposition shall be good against all persons claiming such childe as guardian in soccage , or otherwise , &c. and in case the father appoint no guardian to his childe , the ordinary may appoint one to order his movables and chattels , until the age of fourteen years , and then he may chuse his guardian : and for his lands , the next of kin , on that side by which the land descends not , shall be guardian , as heretofore , in case of a tenure in soccage . gardian , or guardian of the spiritualties , ( custos spiritualium vel spiritualitatis , ) is he , to whom the spiritual jurisdiction of any diocess is committed , during the vacancy of the see , anno hen. . ca. . and , i take it , the gardian of the spiritualties may be either guardian in law , ot jure magistratus , as the arch-bishop is of any diocess within his province ; or guardian by delegation , as he whom the arch-bishop , or vicar-general does for the time depute , anno eliz. ca. . gardian of the peace , ( custos pacis . ) see conservator of the peace . gardian of the cinque-ports , ( gardianus quinque portuum , ) is a magistrate that has the jurisdiction of those havens , which are commonly called the cinque-ports ; that is , the five havens : who there has all that jurisdiction the admiral of england has in places not exempt . camden , in his britan. pa. . says ; the romans , after they had setled themselves and their empire here in england , appointed a magistrate or governour over those east-parts , where our cinque-ports lie , whom they termed comitem littoris saxonici per britanniam , having another that bore the same title on the opposite part of the sea ; whose office was , to strengthen the sea-coast with munition against the out-rages and robberies of the barbarians ; and believes , this warden of the cinque-ports was first erected among us , in imitation of that roman policy . see cinque-ports . gardein de l'estemery , ( anno car. . ca. . ) warden of the stanneries . gare , ( anno ed. . ca. . ) is a course wool , full of staring hairs , such as grows about the pesil , or shanks of the sheep . gariofilli , rectius gariophylli , the spice called cloves . — et salvo haeredibus meis post decessum meum uno clavo gariofil . in praedicto festo sancti mich. pro omni servicio saeculari , &c. carta hugonis de wygeton priorat . leominstr . anno . garnish , as , to garnish the heir . i. to warn the heir , anno eliz. ca. . garnishee , is taken for the party in whose hands money is attached within the liberties of the city of london ; so used in the sheriff of london's court ; because he has had garnishment , or warning not to pay the money , but to appear and answer to the plantiff-creditors sute . garnishment , ( fr. garnement , ) signifies a warning given to one for his appearance ; and that for the better furnishing the cause and court. for example , one is sued for the detinue of certain charters , and says , they were deliver'd to him , not onely by the plaintiff , but by j. s. also , and therefore prayes , that j. s. may be warned to plead with the plaintiff , whether the conditions are performed or no ; and , in this petition he is said to pray garnishment . new book of entries , fol. . col . . which may be interpreted a warning to j. s. to provide himself of a defence , or else a furnishing the court with all parties to the action , whereby it may throughly determine the cause . britton ( cap. . ) says , contracts are some naked and sans garnement , and some furnished , or ( to use the literal signification of his word ) apparelled , &c. howbeit garnishment is generally used for a warning ; as in kitchin , fol. . garnisher le court , is , to warn the court ; and , reasonable garnishment in the same place , is reasonable warning . and in the stat. eliz. ca. . — upon a garnishment or two nichils returned , &c. garranty . see warranty . garter , ( fr. jartier . i. periscelis , fascia poplitaria , ) signifies , both in divers statutes and otherwise , one special 〈…〉 r , being the ensign of a great and noble society of knights , called knights of the garter . this high order ( as appears by camd. pa. . ) was instituted by that famous king edward the third , upon good success in a skirmish , wherein the kings garter , ( the time or occasion not mentioned , ) was used as a token . pol. virgil casts in a suspition of another original ; but , his grounds , by his own confession , grew from the vulgar opinion , however , it runs thus ; the said king , after he had obtained divers great victories , king john of france , king james of scotland , being both prisoners in the tower of london at one time , king henry of castile , the bastard , expulsed , and don pedro restored by the prince of wales , did , upon no weightier occasion , first institute this order in anno , viz. he dancing with the queen , and other ladies of the court , took up a garter that hapned to fall from one of them , whereat some of the lords smiling , the king said , that ere long he would make that garter to be of high reputation , and shortly after instituted this order of the blew garter , which every companion of the order is bound to wear daily , richly adorned with gold and precious stones , and having these words wrought upon it , honi soit qui mal y pence ; which is thus interpreted , evil be to him , that evil thinks ; or rather thus , shame take him that thinks evil . sir john fern , in his glory of generosity , fol. . agrees with camden , and sets down the victories , whence this order was occasion'd ; whatsoever cause of beginning it had , the order is inferior to none in the world , in honor or antiquity , consisting of martial and heroical nobles , whereof the king of england is the chief , and the rest are either nobles of the realm , or princes of other countries , friends and confederates with this nation ; the honour being such , as emperours , and kings of other nations have desired , and thankfully accepted , it being long before the order of st. michael in france , the golden fleece in burgundy , or the anunciada in savoy . the ceremonies of the chapter , proceeding to election , the investitures and robes , the installation , vow , with such other observations see in segars honor militar & civil , lib. . ca. . fol. . see knights of the garter , and seldens titles of honour , fol. . garter also signifies the principal king at armes among our english heralds , attending upon the knights thereof , created by king henry the fifth , and mentioned in the statute car. . ca. . see herald . garth , in the north of england signifies a back-side , or a little close or homestead ; also a dam or wear in a river , where fish are caught , called a fish-garth . it seems to be an ancient british word ; for , gardd in that language signifies a garden , the dd being liquefy'd in the pronunciation like th . garthman , anno rich. . ca. . it is ordained , that no fisher , nor garthman , shall use any nets or engins to destroy the fry of fish , &c. whereby it seems to signifie one that keeps or owns an open wear , where fish are caught . it may haply be derived from the scottish word gart , which signifies forced or compelled , because the fish are forced by the wear to pass in at a loop , where they are caught . gavel , ( sax. gafel , ) tribute , toll , custom ; yearly rent , payment or revenue ; of which we had of old several kinds paid by tenants to their landlords ; as gavel-corn , gavel-malt , oate-gavel , gavel-fodder ; as you may read in mr. fabian philip's book , entituled , mistaken recompence , pa. & . gavelet , is a special and ancient kind of cessavit used in kent , where the custom of gavelkind continues ; whereby the tenant shall forfeit his lands and tenements to the lord ; if he withdraw from him his due rents and services ; after this manner . — the lord must seek , by the award of his court , from three weeks to three weeks , to fin i some distress upon the tenement , until the fourth court , alwayes with witnesses ; and , if in that time he can find none , then at the fourth court let it be awarded , that he take the tenement into his hand , in name of a distress , and keep it a year and a day without manuring ; within which time , if the tenant pay his arrears , and make reasonable amends for the withholding , let him have and enjoy his tenement as before ; and , if he come not before the year and day be past , let the lord go to the next county-court with his witness of what past at his own court , and pronounce there this process to have further witnesses ; and then , by the award of his own court , he shall enter and manure the tenement as his own : and , if the tenant will afterwards re-have it , and hold it as he did before , let him make agreement with the lord , according to this old saying , neghesith selde & neghesith geld , & v l. for his were , er he become healder . i. has he not since any thing given , nor any thing paid , then let him pay l. for his were , ere he become healder again . other copies have the first part thus written , and expounded . nigondsith yeld & nigonsith geld . let him times pay , and times re-pay . of this see hen. . fitz. tit . cessavit , and the stat. of gavelet , edw. . which gives this law to lords of rents in london . and see westm . . ca. . which gives cessavit . gavelkind , ( from the sax gafel . i. census , tributum , and cynd , natura , genus . ) but doctor powel in his additaments to the cambrian history , and from him taylor in his history of gavelkind , fol. . would have it derived from the british word , gavel , importing a hold , or tenure ; however , it signifies a tenure , or custom , whereby the lands of the father are equally divided at his death among all his sons ; or , the land of the brother among all the brethren , if he have no issue of his own . teutonicis priscis patrios succedit in agros mascula stirps omnis , ne foret ulla potens . this custom is still of force in kent , urchenfeild in herefordshire , and elsewhere , though with some difference . but , by the stat. & hen. . ca. . all gavelkind lands in wales are made descendable to the heir , according to the course of the common-law . camden , in his brit. says thus — cantiani ea lege gulielmo normanno se dediderunt , ut patrias consuetudines illaesas retinerent , illamque inprimis quam gavelkind nominat . haec a terrae , quae eo nomine censentur , liberis masculis ex aequis portionibus dividuntur , vel faeminis , si masculi non fuerint . adding further , hanc haereditatem , cum quintum decimum annum attigerint , adeunt , & sine domini consensu cuilibet , vel dando , vel vendendo alienare licet . et filii parentibus , furti damnatis , in id genus fundi succedunt , &c. it appears by hen. . ca. . that in those dayes , there were not above or persons in all kent , that held by any other tenure : which was afterwards altered , upon the petition of divers kentish gentlemen , in much of the land of that county , by stat. hen. . ca. . see lamberts perambulation of kent , and sumners learned discourse on this subject . — dedi totam terram , quam vendidit mihi michael de turnham , sicut suum liberum gavilikinde & stoikikinde , ad fundandum ibi domum religionis , &c. mon. angl. par. fol. . a. gavelsester , ( sax. ) sextarius vectigalis ; cervisiae scilicet sextarius manerii vel praedii domino ab usufructuariis cervisiam coquentibus , census vel vectigalis nomine , pendendus , ) a certain measure of rent-ale . among the articles to be charged on the stewards and bailiffs of the church of canterburies mannors in kent , ( according to which they were to be accountable , ) this of old was one ; de gavel-sester cujuslibet bracini braciati infra libertatem maneriorum , viz. unam lagenam & dimidiam cervisiae . it elsewhere occurs under the name of tol-sester , thus ; de tolsester cervisiae , hoc est de quolibet bracino per unum annum lagenam de cervisia . and , is undoubtedly the same ; in lieu whereof the abbot of abington was wont of custom to receive that peny mentioned by selden in his learned dissertation annexed to fleta , ca. . num . . and there , ( by some mistake haply of the printer , ) written colcester-peny , for tol-sester-penny . nor differs it , ( i think ) from what in the glossary , at the end of hen. . laws , is called oale-gavel . sax. dict. and see tolsester . gawgeor , or gager , ( from the fr. gauchir . i. in gyrum torquere , ) signifies an officer of the kings , appointed to examin all tuns , pipes , hogsheads , barrels , and tercians of wine , oyle , honey , butter , and to give them a mark of allowance , before they are sold in any place : and , because this mark is a circle made with an iron instrument for that purpose , it seems thence to take name . of this officer and office we have many statutes , the first is , anno ed. . commonly called the statute of provision , or purveyors , ca. . hen. . ca . &c. and the last , is car. . ca. . gawge-peny , seems to be the gaugeors fee ; by anno hen. . ca. . geld , ( geldum ) mulcta , compensatio delicti & precium rei . hence in our ancient laws wergild was used for the value or price of a man slain ; and orfgild , of a beast . also mony , or tribute . — et sint quieti de geldis & danegeldis & horngeldis & fotgeldis , & de blodwita & fitwita , & flitwita , & leirwita , & heingwita , & fremenefeuda , & werdpeni , & averpeni , & hundredpeni , & tolingpeni — carta ric. . priorat . de hertland in devon. pat. ed. . part . . m. . see gild. geldable . see gildable . gemote , ( sax. ) conventus ) omnis homo pacem habeat eundo ad gemotum & rediens de gemoto , nisi probatus fur fuerit . ll. ed. conf. ca. . see mote . general issue . see issue . geneath , ( sax. rectius , geneat ) villanus , villicus , firmarius . l. inae . ms. ca. . regis geneath . i. villanus . generosa , is a good addition ; and , if a gentlewoman be named spinster in any original writ , appeal or inditement , she may abate and quash the same . inst . fol. . gentleman , ( generosus , nobilis ) from the fr. gentil . i. honestus vel honesto loco natus , and the saxon mon , as if you would say , a man well-born , or a gente , or genere ; the italian calls them gentilhuomini ; under this title are comprised all that are above yeomen ; so that noblemen are truly gentlemen ; but , by the course and custom of england , nobility is either major or minor ; the greater contains all titles and degrees from baronets upward , the lesser all from barons downward . smith de repub. angl. lib. . cap. . & . the reason of the name , grows from this , that they observe gentilitatem suam , that is , the race and propagation of their blood , by bearing arms , which the common sort , neither doth , nor may do . tully in his topicks speaks thus of this subject , gentiles sunt , qui inter se eodem sunt nomine ab ingenuis oriundi , quorum majorum nemo servitutem servivit , qui capite non sunt diminuti . gentilis homo for a gentleman , was adjudged a good addition . hill. edw. . the addition of knight is ancient , but of esquire or gentleman , rare , before hen. . cap. . see part. inst . fol. . & . gersuma ( sax. gaersuma , i. sumptus , praemium ) in ancient charters it is used for a fine or income . as , sciatis me a. pro tot libris , quas b. mihi dedit in gersumam , dedisse , concessisse , &c. and — gersumam capere de nativa vestra impregnata sinc licentiae vestra , quod dicitu childwit . in matth. paris it is written gersoma . datis abbati tribus marcis auri in gersoma , i. e. pro fine , and in scotland gressume . gestu & fama , is a writ now out of use , lamb. eiren. lib. . cap. . pag. . gethbrech ( rectiùs grithbreche ) si pacem quis fregerit ante mediocres forestae , quod dicunt gethbrech , emendet regi decem solidis . constitut . canuti de foresta cap. . see grithbreche . gigmills were used for the perching and burling of woollen-cloth , and prohibited anno & edw. . cap. . they were a kinde of fulling mills . gild ( anno car . cap. . ) signifies cheifly a fraternity or company , combined together with orders and laws made among themselves by the princes licence , and they had their annual feasts and neighborly meetings : but as to the direct time , when these gilds had their origin in england , there is nothing of certainty to be found , since they were in use long before any formal licences were granted to them , for such meetings . edward the third , in the fourteenth of his reign , granted licence to the men of coventry to erect a merchants gild , and a fraternity of brethren and sisters , with a master or warden ; and that they might make chantries , bestow alms , do other works of piety , and constitute ordinances touching the same , &c. so henry the fourth , in the fourth year of his reign , granted licence to found a gild of the holy cross at stratford upon avon . see mr. dugdales antiquities of warwickshire , fol. . & . gild or geld ( according to camden ) signifies also a tribute or tax , and the statutes of edw. . stat . . cap. . and hen. . cap. . use gildable in the same sence with taxable . whence gild in the first signification does proceed , because they support their common charge by a mutual contribution . gild ( according to crompton in his jurisdictions , fol. . ) signifies an amercement , as foot-geld ; and fol. . he interprets it to be a prestation within the forest , in these words , to be quit of all manner of gilds , is to be discharged of all manner of prestations , to be made for gathering sheaves of corn , lamb , and wooll , to the use of foresters . the word is also mentioned in the stat. hen. . cap. . and car. . cap. . gildale ( from the sax. gild , i. solutio & oele , ale ) a compotation , where every one paid his share . see sothale . gildable or geldable , ( geldabilis ) that is liable to pay tax or tribute . camden dividing suffolk into three parts , calls the first gildable . it is mentioned anno hen. . cap. . but i finde gildable expounded in an old ms. to be that land or lordship , which is sub districtione curiae vice-com . see part. inst . fol. . inquisitio capta apud atherston , &c. hen. . per sacram. will. peirs & aliqui dicunt quod johannes chestershire , qui tenet unum tenementum & duo crofta cum pertin . in le geldable de johanne lile per quod servitium ignorant , erexit crucem s. johannis hierosol . super domum suam , ad habendum privilegium & libertat . templar . de balshale , eo quod teneret praedict . tenementum sub cruce in praejudicium dom. regis & contra formam statuti inde edit , &c. ms. penes gul. dugdale ar. jur. dicunt quod prior de sempringham tenet tres carucatas terrae in s. & non sunt geldabiles . ex rot. hundr . in turr. lond. de anno edw. . linc. gild-hall ( i. gildae aula ) the cheif hall of the city of london so called . gildarum nomine continentur non solum minores fraternitates & sodalitia , sed ipsae etiam civitatum communitates , says the learned spelman . see gild. gildhalda teutonicorum , was used for the fraternity of easterling merchants in london , called the stilyard . anno hen. . cap. . gild-merchant ( gilda mercatoria ) was a certain priviledge or liberty , granted to merchants , whereby they were enabled ( among other things ) to hold certain pleas of land within their own precincts . giltwite . see gyltwite . gisarms rectius guisarmes ( an. edw. . stat. . cap. . ) a kinde of hand-ax , according to skene . fleta writes it sisarms , lib. . cap. . est armorum genus longo manubrio & porrecto cuspide . spel. gleab-land ( gleba ) church-land , dos vel à terra ad ecclesiam pertinens . charta elredi regis magnae britanniae monast . de croiland , apud ingulphum : inprimis totam insulam croilandiae pro gleba ecclesiae , & pro situ seperali ejusdem monasterii — dono. lindwood says , gleba est terra in qua consistit dos ecclesiae . mentioned in the statute of car. . cap. . we most commonly take it for land belonging to a parish church , besides the tythe . skene says , the four acres of land , quhilk is given to the ministers of the evangel in scotland , is called ane gleeb , the quhilk suld be frée fra payment of any teinds . go , is sometimes used in a special signification , as to go without day ; and to go to god , is as much as to be dismissed the court. broke , tit . failer de records , num . . and kitchin , fol. . goaling of uagabonds , i. sending them to the goal . anno eliz. cap. . god-bote ( sax. ) mulcta ex delictis in deum admissis obveniens . a fine or amerciament for crimes and offences against god ; an ecclesiastical or church fine . good-behavior . see good abearing . goldwith vel goldwich . in the records of the tower , there is mention of consuetudo vocata goldwith vel goldwich ; but no explication of it . ideo quare . good abearing ( bonus gestus ) is by a special signification , an exact carriage or behavior of a subject towards the king , and his leige people , whereunto some men , upon their misbehavior or loose demeanure , are sometimes bound : for as lambert , in his eiren. lib. . cap. . says , he that is bound to this , is more strictly bound , then to the peace ; because , where the peace is not broken without an afray , battery , or such like , this surety de bono gestu , may be forfeited by the number of a mans company , or by his or their weapons or arms , whereof see more in that learned writer , and in crompt . just . of peace , fol. . & . good country ( bona patria ) is an assize or jury of countrey-men or good neighbors . skene , verbo , bona patria . goole ( fr goulet ) ( anno & car. . cap. . a breach in a bank or sea-wal ; or a passage worn by the flux and reflux of the sea. gorce ( from the fr. gort , i. a wear . ) locus in fluvio coarctatus , piscium capiendorum gratia ; a wear . it is accorded , that all such gorces , mills , wears , stanks , stakes , and kiddles , which be levied and set up in the time of king edward , the kings grand-father , and after , whereby the kings ships and boats be disturbed , that they cannot pass in such river , as they were wont , shall be out and utterly pulled down , without being renewed . anno edw. . cap. . sir edward coke ( on littl. fol. . b. ) seems to derive it from gurges , a deep pit of water , and calls it a gors or gulf. but quaere , if not a mistake . gote ( anno hen. . cap. . ) a ditch , sluce , or gutter ; perhaps from the sax. geotan , fundere . graduats ( graduati ) are such schollars as have taken degrees in any university . anno hen. . cap. . graffer ( fr. greffier , i. scriba ) signifies a notary or scrivener ; and is used in the stat. hen. . cap. . graile ( gradale , seu graduale ) a gradual or book containing some of the offices of the roman church . gradale ( inquit lindwodus ) sic dictum a gradalibus in tali libro contentis . provincial . angl. lib. . the word is mentioned in plowden , fol. . and hen. . fol. . it is sometimes taken for a mass-book , or part of it , instituted by pope celestine , anno . according to cotgrave . grand assize . see assize , and magna assisa . grand cape . see cape and attachment . grand days , are one in every term , solemnly kept in the inns of court and chancery , viz. candlemas-day in hillary term ; ascension-day in easter term ; s. john baptist-day in trinity term ; and all-saints in michaelmas term ; and these are dies non juridici , no days in court. grand distress ( districtio magna ) is so called , not for the quantity , for it is very short , but for the quality , for the extent is very great ; for thereby the sheriff is commanded , quod distringat tenentem , ita quod ipse , nec aliquis per ipsum ad ea manum apponat , donec habuerit aliud praeceptum , & quod de exitibus eorundem nobis respondeat , & quod habeat corpus ejus , &c. this writ lies in two cases , either when the tenant or defendant is attached , and so returned , and appears not , but makes default , then a grand distress is to be awarded ; or when the tenant or defendant hath once appeared , and after makes default , then this writ lies by the common law , in lieu of a petit cape . part. inst . fol. . anno hen. . cap. . westm . . cap. . grand sergeanty . see chivalry and sergeanty . grange ( grangia ) is a house or farm , not onely where are necessary places for all manner of husbandry ; as stables for horses , stalls for cattle , &c. but where are barns and granaries for corn , haylofts , &c. and by the grant of a grange , which is often in conveyances , such places will pass . provinc . angl. lib. . tit . de judiciis , ca. item omnis . grant ( concessio ) signifies a gift in writing of such a thing , as cannot aptly be passed or conveyed by word onely : as rent , reversions , services , advowsons in gross , tythes , &c. or made by such persons as cannot give , but by deed , as the king , and all bodies politick ; which differences are often in speech neglected , and then it is taken generally for every gift whatsoever , made of any thing by any person , and he that grants it , is called the grantor , and he to whom it is made , the grantee . west , part . symbol . lib. . sect. . and a thing is said to lie in grant , which cannot be assigned without deed. coke , lib. . lincoln-colledge case . great men , are most commonly understood to be the temporal lords of the higher house of parliament : as anno edw. . cap. . and rich. . in proaem . and sometimes of the members of the house of commons , as anno rich. . stat . . greathbreach or greachbreach , is mistaken by saxton in his description of england , cap. . and by rastal , for grith-breche , which vide. grée ( fr. gre , i , will , allowance , or liking ) signifies agreement , contentment , or good-liking : as to make gree to the parties , is to satisfie them for an offence done . anno rich. . cap. . and in edw. . cap. . it is said , that judgment shall be put in suspence , till grée be made to the king of his debt , where it signifies satisfaction . see agreement . gréen-cloth . see counting-house . gréenhew ( from green , and the sax. hewen , i. viridis ) is all one with vert. manwood , part . . of his forest laws , cap. . num . . see vert. gréen silver ( viride argentum ) it is an ancient custom within the mannor of writtel in com. essex , that what ever tenant hath his fore door opening to greenbury , pays a half-penny yearly to the lord of the mannor , by the name of green-silver . green wax seems to be used for estreats delivered to the sheriffs , out of the exchequer , under the seal of that court ( made in green wax ) to be levied in the counties . anno edw. . cap. . and hen. . cap. . see forein apposer . gressume . see gersuma . greve ( sax. gerefa ) is a word of power and authority signifying as much as comes or vice-comes ; and hence our shyreeve , portgreve , &c. see hoveden , parte poster . annal . fol. . where he says , greve dicitur , ideo quod jure debeat grith , i. pacem ex illis facere , qui patriae inferunt vae , i. miseriam vel malum . from whence , but with less power and dignity , is derived the word reve , bailiff , or under officer of the lord of a mannor . see shyreve and portgreve . grils ( anno edw. . cap. . ) a kinde of small fish . grithbreche ( sax. grith-bryce , i. pacis fractio seu violatio ) breach of the peace . in causis regiis grithbreche sol. — emendabit . ll. hen. . cap. . & carta will. conq. eccles . sancti pauli , in hist . ejusdem , fol. . grithbreche , i. quod prior tenebit placita de illis qui frangunt pacem regis vel libertatis ipsius prioris . ex reg. priorat de cokesford . grithstole ( sax. ) sedes pacis . a sanctuary . see frodmortel . grocers , by the stat. edw. . cap. . were merchants that engrossed all merchandise vendible . now it is a particular trade , well known . grosse boys ( fr. gros bois , i. great wood ) signifies specially such wood as hath been or is , either by the common law or custom of the countrey , timber . part instit . fol. . grossome , signifies a fine , and is a corruption from , or a law-french word for the saxon gersuma . for thus plowden , fol. . et le dit i. k. grt per m le indenture a payer en le fine de le dit terme de ans al dit w. n. dize mille de titles , ou le value de eux en argent , en nosme de grossome . and in fol. . it is written gressame . — absque aliquo le gressame , vel fine pro praemissis solvend . see gersuma . growm ( anno edw. . cap. . seems to be an engin to stretch woollen-cloth , soon after it is woven . growth-halfpeny , a half-peny so called , and paid in some places for tythe of every fat beast , ox , and other unfruitful cattle . claytons rep. pag. . gruarii ( of whom you shall read in forest records ) derived from the fr. gruyer , signifies generally the principal officers of the forest . guest-takers or gist-takers . see agistors . guadage or guidage ( guadagium & guidagium ) est quod datur alicui , ut tuto conducatur per terram alterius : that which is given for safe conduct through unknown ways , or a strange territory . sir edw. coke calls this an old legal word , inst . fol. . gule of august ( gula augusti ) westm . . cap. . edw. . stat. . fitzh . nat. br. fol. . plow . casu mines , fol. . is the very day of s. peter ad vincula , which is celebrated on the first day of august , and called the gule of august , from the latin gula , i. a throat ; the reason is set down in durands rationale , ( lib. . cap. . ) who says , that one quirinus , a tribune , having a daughter that had a disease in her throat , went to alexander , then pope of rome , the sixth from s. peter , and desired of him to borrow , or see the chains , that s. peter was chained with under nero , which being obtained , the said daughter kissing the chains , was cured of her disease , and quirinus with his family was baptised . tunc dictus alexander papa hoc festum in calendis augusti celebrandum instituit , & in honorem beati petri ecclesiam in urbe fabricavit , ubi vincula ipsa reposuit , & ad vincula nominavit , & calendis augusti dedicavit . in qua festivitate populus illic ipsa vincula hodiè osculatur . so that this day , being before called onely the calends of august , was upon this occasion termed indifferently , either s. peters day , ad vincula , from the instrument that wrought the miracle ; or the gule of august , from that part of the virgin , whereon the miracle was wrought . averagium aestivale fieri debet inter hokeday , & gulam augusti . rentale manerii regalis de wy . gultwit ( according to saxton in his description of england , cap. . ) is an amends for trespass . but i finde no such word either in spelmans gloss . sax. dict. or ancient record . therefore , doubtless , mistaken for gylewite , which vide. gust ( hospes ) is used by bracton for a stranger or guest that lodges with us the second night . lib. . tract . . cap. . in the laws of s. edward , published by lambert , num . . it is written gest . of this see more in uncouth . gwabr-merched , is a british word , signifying a payment or fine made to the lords of some mannors , upon the marriage of their tenants daughters ; or otherwise upon their committing incontinency . see marchet and lairwite . omnibus — jacobus baskervile miles , dominus manerii de yrsley ( com. heref. ) salutem . noveritis me praefatum jacobum remisisse johanni ap john haered . & assign . suis totum jus , titulum , &c. quod habeo de & in quibusdam serviciis aut reditibus exeunt . de tenemento quod praedictus johannes tenet de me in praedicto manerio , quae servitia aut reditus sequntur , viz. moch-meswryd , otherwise called mastswine . gwarthegan claimai , otherwise called cowyeld . gwabr-merched , otherwise called lairwite . arian-yihen , otherwise called ox-silver . gwasanaethen , otherwise called work-silver . and deiliad-moor , otherwise called tenant in moor. ita quod nec ego praedict . jac. nec haeredes mei aliquod jus , &c. in praedictis serviciis in futur . habere poterimus , &c. dat. oct. edw. . penes joh. stead gen. gwalstow ( gwalstowum , a sax. gwal , i. patibulum , & stow , locus . ) locus patibuli seu occidendorum . omnia gwalstowa , id est , occidendorum loca , totaliter regis sunt in soca sua . ll. hen. . cap. . gyltwite — habeatque ipse episcopus ( sc . oswaldus ep. weorgeceastre ) omnesque sui successores ibi ad jus ecclesiasticum , debita transgressionum & paenam delictorum , quae nos dicimus ofersegenesse & gyltwite , & omnia quaecunque rex in suis hundredis habet . ex ipso autographo eadgari regis dat. anno . penes serenissimam majestatem caroli regis . a compensation or amends for trespass or fraud ; mulcta pro transgressione . h. habeas corpus , is a writ , which a man , indicted or a trespass before justices of peace , or in a court of any franchise , and imprisoned for it , may have out of the kings bench , thereby to remove himself thither at his own costs , and to answer the cause there . fitzh . nat. br. fol. . and the order in this case is ; first , to procure a certiorari out of the chancery directed to the said justices for removing the indictment into the kings bench , and upon that , to procure this writ to the sheriff , for the causing of his body to be brought at a day , reg. jud. fol. . where you shall finde divers cases wherein this writ is allowed . habeas corpora , is a writ that lies for the bringing in a jury , or so many of them as refuse to come upon the venire facias , for the tryal of a cause brought to issue . old nat. br. fol. . see great diversity of this writ in the table of the reg. judic . and the new book of entries , verbo , habeas corpora . habendum , is a word of course in a conveyance , in every of which , are two principal parts , the premisses , and the habendum . the office of the first is , to express the name of the grantor , the grantee , and the thing granted . the habendum is to limit the estate , so that the general implication of the estate , ( which by construction of law , passeth in the premisses ) is by the habendum controlled and qualified . as in a lease to two persons , the habendum to one for life , the remainder to the other for life , alters the general implication of the joyntenancy in the freehold , which should pass by the premisses , if the habendum were not . coke , vol. . bucklers case , fol. . see use . habere facias seisinam , is a writ judicial , which lies , where a man hath recovered lands in the kings court , directed to the sheriff , and commanding him to give him seisin of the land recovered . old nat. br. fol. . whereof see great diversity in the table of the reg. judic . this writ is issuing sometimes out of the records of a fine executory , directed to the sheriff of the county , where the land lies , and commanding him to give to the cognizee , or his heirs , seisin of the land , whereof the fine is levied ; which writ lieth within the year after the fine , or judgment upon a scire facias , and may be made in divers forms . west , part . symb. tit . fines , sect . . there is also a writ , called habere facias seisinam , ubi rex habuit annum , diem & vastum ; which is for the delivery of lands to the lord of the fee , after the king hath taken his due of his lands , who was convict of felony . reg. of writs , fol. . habere facias visum , is a writ , that lies in divers cases , as in dower , formedon , &c. where a view is to be taken of the lands or tenements in question . see fitz. nat. br. in indice , verbo ( view . ) bracton , lib. . tract . . cap. . and lib. . part . cap. . see view . haberjects or haubergets ( haubergettae ) a kinde of cloth. una sit latitudo pannorum tinctorum , russatorum , & haubergettarum , scil . duae ulnae infra listas . mag. charta , cap. . habillements of war ( anno eliz. cap. . ) armor , harness , utensils , or provisions for war ; without which , men have not ability to maintain war. part. instit . fol. . hables , is the plural of the french hable , signifying a sea-port or haven . the word is used hen. . cap. . hadbote ( sax ) was a recompence or satisfaction for the violation of holy orders , or violence offered to persons in holy orders . sax. dict. hade of land ( hada terrae ) — s●rsum reddidit in manus domini duas acras terrae , continens decem seliones & duas hadas , anglice , ten ridges , and two hades , jacen● in t . terr . — maner . de orleton , anno jac. haerede deliberando ali● , qui habet custodiam terrae , was a writ directed to the sheriff , willing him to command one that had the body of him , who was ward to another , to deliver him to him , whose ward he was , by reason of his land. reg. of writs , fol. . b. haerede abducto , is a writ that lay for the lord , who having by right the wardship of his tenant under age , could not come by his body , being conveyed away by another . old nat. br. fol. . see ravishment de gard , and haerede rapto , in reg. of writs , fol. . haeretico comburendo , is a writ that lay against him , that was an heretick , viz. who , having been once convict of heresie by his bishop , and having abjured it , fell afterwards into it again , or into some other ; and was thereupon committed to the secular power . fitz. nat. br. fol. . this writ lies not at this day , according to sir edward coke , in his rep. fol. . hafne courts , hafne is a danish word , and signifies with us a haven or sea-port . letters patent of richard , duke of glocester , admiral of england , aug. anno edw. . have these words . — ulterius dicunt quod dicti abbas & conventus & praedecessores sui habent & habere consueverunt per idem tempus in praedictis villis ( bancaster & ringstead ) cum hulmo quasdam curias portus , vocatas hafne courts , tenendas ibidem ad placitum abbatis , &c. haven or port-courts inst . fol. . haga ( sax. haeg , i. domus , a house . ) in domesday , tit . sussex . terra rogerii , num . . radulfus tenet unam hagam de xii denar . willielmus quinque hagas de quinque sol , &c. an ancient anonymous author expounds haga to be domus cum shopa . — cum novem praefatae civitatis habitaculis , quae patria lingua hagan appellari solent . charta ethelredi regis , in auctario matth. paris . fol. . coke on littl. fol. . b. see haw . hagbut . see haque and haquebut . haia , a hedg , and sometimes taken for a park or enclosure . vallatum fuit & inclausatum fossato haia & palatio . bracton , lib. . cap. . num . . hence haiement for a hedg-fence . rot. inq. edw. . in scac. de foresta . ●aiebote ( from the fr. haye , i. sepes , and the sax. bote , i. compensatio ) is used for a permission or liberty to take thorns and freeth , to make or repair hedges . halsfange . see pillory and healfang . half-mark ( dimidia merkae ) is a noble . fitzherbert ( in nat. br. fol. . ) says , that in case a writ of right be brought , and the seisin of the demandant , or his ancestor alleaged , the seisin is not traversable by the defendant , but he may tender the half-mark for the enquiry of this seisin ; which is in plainer terms , that the defendant shall not be admitted to deny , that the demandant or his ancestor was seised of the land in question , and to prove his denial , but that he shall be admitted to tender half a mark in money , to have an enquiry made , whether the deinandant , &c. were so seised , or not . and in this signification we read the same words in the old english , nat. br. fol. . b. see also fitz. nat. br. fol. . half-seal , is used in the chancery for the sealing of commissions to delegates , appointed upon any appeal in ecclesiastical or marine causes . anno eliz. cap. . half-tong . see medietas linguae . halimote alias healgemot , ( from the sax. hease , i. aula , & gemot , i. conventus ) is that we now call a court baron ; and the etymology is the meeting of the tenants of one hall or mannor . omnis causa terminetur vel hundredo , vel comitatu vel halimot , socum habentium , vel dominorum curia . ll. hen. . cap. . the name is still retained at luston , and other places in herefordshire . hereford palatium ad halimot ibidem tent . . die oct. anno regni regis hen. . . venit johannes garneston & juliana uxor ejus in plena curià , &c. it is sometimes taken for a convention of citizens in their publick hall , which was also called folkmot and halmot . as in london every company hath a hall , wherein they keep their courts . inst . fol. . also a holy or ecclesiastical court. hall ( halla , sax. healle ) was anciently taken for a mansion-house or habitation . domesday , tit . chent . terra hugonis de mountfort . in newcerct hundred ipse hugo tenet unam terram quam azor rot tenuit de r. e. ( rege edovardo ) sine halla , i. sine domo . hallage ( fr. ) is a fee or toll due for cloaths brought for sale to blackwel-hall in london . coke , vol. . fol. . b. also the toll that is due to the lord of a fair or market , for such commodities as are vended in the common hall of the place . hallam-shire ( anno jac. cap. . ) was a part of yorkshire , where the town of sheffield stands . halsfang . see healfang . ham ( sax. ) a house or habitation ; also a village or town . hence our many towns end with it , as nottingham , buckingham , walsingham , &c. hambles , is the plural of the french hable , signifying a port or haven of the sea. mentioned hen . cap. . hameling or hambling of dogs , is all one with expeditating . manwood ( part. . fol. . and part . . cap. . num . . ) says , this is the ancient term that foresters used for that matter . see expeditate . hamel , hamlet , hampsel , are diminutives of ham ; and signifie a little village , or rather part of a village ; of which three , the word hamlet is now onely used , though kitchin useth both hamel and hampsel . the learned spelman upon these words , shewing the difference betwixt villam integram , villam dimidiam & hamletam , says thus . — hamletam vero , quae medietatem friborgi non obtinuit , hoc est ubi quinque capitales plegii non deprehensi sint . the statute of exon , edw. . mentions this word thus — lez nosmes de toutes les villes & hamlets que sont en son wapentake , &c. in an ancient ms. i finde it expounded , the seat of a free-holder . hamfare ( sax. ) insultus factus in domo . see gloss . in x. scriptores . hamsoken ( sax. hamsocn ) the liberty , priviledge , or freedom of a man 's own house , or home ; also a franchise or priviledge so called , granted to the lords of mannors , whereby they hold pleas , and take cognizance of the breach of that immunity . sax dict. significat quietantiam misericordiae intrationis in alienam domum vi & injustè . fleta , lib. . cap. . concedo libertatem & potestatem , jura , consuetudines & omnes forisfacturas omnium terrarum suarum , i. burgheritha , & hundred-setena , athas , & ordelas , & infangtheofas , hamsorne , & fridebrice , & forstel , & toll , & team , in omni regno meo , &c char. donationis ab edmundo rege eccles . sanctae mariae glaston . our ancient records express burglary under this word hamsocne . see homesoken . handborow ( sax. borg-hand , i. a surety ) est quasi vas aut fide jussor manuensis , hoc est , minor seu inferior ; nam headborow vas est capitalis vel superior . spelman . hand in , and hand out ( anno edw. . cap. . ) is the name of an unlawful game , how disused . handful , is four inches by the standard . anno hen. . cap. . handy-warp , a kinde of cloth made at coksal , bocking , and braintree in essex , and mentioned in the statute of & phil. & ma. cap. . hanifare . see hinefare . hankwit alias hangwite ( from the sax. hangian , i. suspendere , and pite , mulcta ) is ( according to kastal ) a liberty granted to a man , whereby he is quit of a felon or theif , hanged without judgment , or escaped out of custody . we read it interpreted mulcta pro homine injustè suspenso . and elswhere , mulcta pro latrone praeter juris exigentiam suspenso vel elapso . q. whether it may not also signifie , a liberty whereby a lord challengeth the forfeiture due for him , who hangs himself within the lords fee ? see bloudwit . hanper or hanaper of the chancery ( anno rich. . cap. . ) seems to signifie , as fiscus originally does in latin. see clerk of the hanaper . hanse ( an old gothish word ) signifies a society of merchants , combined together for the good usage , and safe passage of merchandise from kingdom to kingdom . this society was , and in part , yet is endued with many large priviledges of princes respectively within their territories . it had four principal seats or staples , where the almain or dutch merchants being the erectors of this society , had an especial house , one of which was here in london called guildhalda teutonicorum , vulgarly , the steelyard . see ortelius index , verbo , ansiatici . — et quod habeant gildam mercatoriam cum hansa , &c. carta hen. . ball. & burgens . mountgomer . hap , ( fr. happer , to catch or snatch ) signifies the same with us , as to hap the possession of a deed poll , littleton , fo . . to hap the rent ; as , if partition be made between two parceners , and more land be allowed to one then the other , and she that has most of the land , charges her land to the other , and she happeth the rent , she shall maintain assise without specialty . terms ley. haque , is a hand-gun of about three quarters of a yard long . anno h. . ca. . and & ed . ca. . there is also the half-haque , or demi-haque . haquebut , ( fr. ) a kind of gun or caliver , otherwise called an arquebuse . anno & ed. . ca. . and & ph. & ma. ca. . haratium — et decimas de dominio suo , de pratis , de bladis , parcis , haratiis , molendinis & de vivariis . mon. ang. . par . fo . . probably from hara , a swinesty , it might signifie the breed or stock of swine . hariot , alias heriot , ( heriotum ) sir edward coke on litt. fo . . b. says , this , ( as he takes it ) in the saxon tongue , is called heregeat , that is , the lords beast ; for here , ( says he ) is lord , and geat is beast ; from which i crave liberty to dissent : for , here in sax. signifies an army ; and the saxon heregeat , ( from whence we derive our heriot ) signify'd provision for warr , or a tribute given to the lord of a mannor , for his better preparation towards warr : erat enim hereotum militaris supellectilis praestatio , quam obeunte vassallo , dominus reportavit in sui ipsius munitionem , says spelman . and , by the laws of canutus , it appears , that at the death of the great men of this nation , so many horses and armes were to be paid , as they were in their respective life-times , obliged to keep for the kings service . it is now taken for the best beast a tenant hath at the hour of his death , due to the lord by custom , be it horse , ox , &c. and in some mannors , the best piece of plate , jewel , or the best good . heriot is of two sorts ; first , hariot custom , where hariots have been paid time out of mind by custom , after the death of tenant for life . . hariot service , when a tenant holds by such service to pay heriot at the time of his death . for this the lord shall distrain , and for the other he shall seize , and not distrain . if the lord purchase part of the tenancy , hariot service is extinguish'd , but not so of hariot custom . cokes rep. talbots case . see farley . hart , is a stag of five years old compleat ; and , if the king or queen hunt him , and he escape , then is he called a hart-royal ; and , if by such hunting , he be chased out of the forest , proclamation is commonly made in the places adjacent , that in regard of the pastime the beast has afforded the king or queen , none shall hurt him or hinder him from returning to the forest , then is he a hart-royal proclaimed . manwood , part . ca. . num . . harth-penny , and harth-st●ver . see chimney-money , and peter-pence . haubergets . see haberjects . haw , ( from the sax. haga ) a small quantity of land , so called in kent ; as a hemphaw , or beanhaw , lying near the house , and enclosed for that use . sax. dict . but , i have seen an ancient ms that says , hawes vocantur mansiones sive domus . and sir edw. coke ( on litt. fo . b. ) says , in an ancient plea concerning feversham in kent , haws are interpreted to signifie mansiones . haward . see hayward . hawberk , or haubert , quasi hautberg , ( fr. haubert . i. lorica , ) he that holds land in france by finding a coat , or shirt of mayle , when he shall be called , is said to have hauberticum feudum , fief de haubert — hauberk , or haubergion , with our ancestors did signifie as in france , a coat or shirt of mayle , and it seems to be so used anno edw. . stat. . ca. . hawkers , those deceitful fellows , who went from place to place buying and selling brass , pewter , and other merchandise , which ought to be utter'd in open market , were of old so called . the word is mentioned anno hen. . ca. . and ejusdem , ca. . we now call those hawkers , who go up and down london streets crying news-books , and selling them by retail ; and , the women who sell them by wholesale from the press , are called mercury women . the appellation of hawkers seems to grow from their uncertain wandring , like those who with hawkes , seek their game where they can find it . haya , ( gal. haye , sax. hege , ) a hedge ; also a piece of ground enclosed with a hedge . hayward , ( from the fr. hay , i. sepes , and garde , i. custodia ) signifies one that keeps the common herd of the town ; and , the reason may be , because one part of his office is to look that they neither break nor crop the hedges of enclosed grounds . he is a sworn officer in the lords court , the form of whose oath you may see in kitchin , fo . . hazarders , are those that play at the game at dice , called hazard ; hazardor communis ludens ad falsos talos adjudicatur quod per sex dies in diversis locis ponatur super collistrigium . int. plac. trin. . hen. . sussex . headborow , ( from the sax. head. i. sublimatus . & borge , fide jussor ) signifies him that is chief of the frankpledge , and that had the principal government of them within his own pledge . and , as he was called headborow , so was he also called burrowhead , bursholder , thirdborow , tithingman , chief-pledge , or borowelder , according to the diversity of speech in several places . of this see lambert in his explication , &c. verbo , centuria ; smyth de rep. angl. lib. . ca. . the same officer is now called a constable . see constable . head-pence , was an exaction of l. and more , heretofore collected by the sheriff of northumberland of the inhabitants of that county , twice in seven years ; that is , every third and fourth years , without any account made to the king ; which was therefore by the stat. hen. . cap. . clearly put out for ever . see common fine . head-silver . see common fine . healfang or halsfang , is compounded of two saxon words hals , i. collum , and fang , captus ; paena scilicet , qua alicui collum stringatur . see pillory . hearth-money . see chimney-money . heck , is the name of an engin to take fish in the river owse by york . anno hen. . cap. . heda , a haven or port. domesday . heir ( haeres ) is he that succeeds , by right of blood , in any mans lands or tenements in fee ; for nothing passeth jure haereditatis , but fee. by the common law a man cannot be heir to goods or chattels , for haeres dicitur ab haereditate . every heir , having land by descent , is bound by the binding acts of his ancestors , if he be named , qui sentit commodum , sentire debet & onus . coke on littl. fol. , . last heir . see last . heire-lome ( from the sax. heier , i. haeres , & leome , i. membrum ) omne utensile robustius quod ab aedibus non facile revellitur , ideoque ex more quorundam locorum ad haeredem transit , tanquam membrum haereditatis . spelm. it comprehends divers implements of houshold , as tables , presses , cupboards , bedsteads , furnaces , wainscot , and such like , which ( in some countreys , having belonged to a house certain descents , and never inventoried , after the decease of the owner , as chattels ) accrue by custom , not by common laws to the heir with the house it self . consuetudo hundredi de stretford in com. oxon. est , quod haeredes tenementorum infra hundredum praedict existen . post mortem antecessorum suorum habebunt , &c. principalium , anglice an heir-loome , viz. de quodam genere catallorum , utensilium , &c. optimum plaustrum , optimam carucam , optimum ciphum , &c. coke on littl. fol. . b. hebber-man , a fisherman below london-bridge , who fishes for whitings , smelts , &c. commonly at ebbing-water , and therefore so called . mentioned in art. for the thames-jury , printed . hebbing-wears ( mentioned in hen. . cap. . ) are wears or engins made or laid at ebbing-water , for taking fish . quaere . heisa , servitium . inter placita de temp . jo. regis , northampton . henchman , qui equo innilitur bellicoso , from the german hengst , a war-horse : with us it signifies one that runs on foot , attending upon a person of honor or worship . anno edw. . cap. . and hen. . cap. . it is written henrman , anno hen. . cap. . henghen ( sax. hengen ) a prison , goal , or house of correction . si quis amicis destitutus , vel alienigena , ad tantum laborem veniat , ut amicum non habeat , in prima accusatione ponatur in hengen , & ibi sustineat donec ad dei judicium vadat . ll. hen. . cap. . hengwite , significat quietantiam misericordiae de latrone suspenso absque consideratione . fleta , lib. . cap. . see hankwit . herald , heralt , or harold ( ital. heraldo , fr. herault , vel quasi herus altus ) signifies an officer at arms , whose function is to denounce war , to proclaim peace , and to be employed by the king in martial messages . thus described by polidore , lib. . habent insuper apparitores ministros , quos heraldos dicunt , quorum praefectus armorum rex vocitatur , hii belli & pacis nuncii : ducibus , comitisque à rege factis , insignia aptant ac eorum funera curant . they are judges and examiners of gentlemens arms , and conservers of genealogies ; they martial the solemnities at the coronation , and funerals of princes , manage combats , and such like . the three chief are called kings at arms , of which , garter is the principal , instituted and created by henry the fifth ( stows annal. pag. . ) whose office is to attend the knights of the garter at their solemnities , and to marshal the funerals of the nobility ; yet i finde in plowden , casu reneger & fogossa , that edward the fourth granted the office of king of heralds to one garter , cum feudis & proficuis ab antiquo , &c. fol. . b. the next is clarentius , ordained by edward the fourth , who , attaining the dukedom of clarence , by the death of george his brother , whom he beheaded for aspiring the crown , made the herald , which properly belonged to that dukedom , a king at arms , and called him clarentius . his proper office is , to martial and dispose the funerals of all the lesser nobility , as knights and esquires , through the realm on the south-side trent . the third is norroy , quasi , north-roy , whose office is the same on the north-side trent , as clarentius on the south , as is intimated by his name , signifying the northern king , or king at arms , of the north parts . besides these , there are six other properly called heralds , according to their original , as they were created to attend certain great lords , &c. in martial expeditions , viz. york , lancaster , somerset , richmond , chester , windsor . lastly , there are four other called marshals or pursuivants at arms , who commonly succeed in the place of such heralds as die , or are preferred , and those are blew-mantle , rouge-cross , rougedragon , and percullis . these heralds are by some authors called nuncii sacri , and by the ancient romans , feciales , who were priests . kings at arms are mentioned in the statute of car. . cap. . of these see more in sir hen. spelmans learned glossarium . herbage ( fr. ) lat. herbagium ) signifies the pasture or fruit of the earth , provided by nature , for the bit or mouth of the cattle : and it is commonly used for a liberty that a man hath to feed his cattle in another mans ground , as in the forest . cromp. jur. fol. . occurrit frequens ( says spelman ) pro jure depascendi alienum solum , ut in forestis . omnibus — hugo de logiis — salutem . sciatis me dedisse — thomae de erdyngton totam terram meam de alfledemore cum pertin . reddendo inde annuatim sex sagittas barbatas ad festum s. mich. salvo mihi & marg. uxori meae , quod nos in praedicta terra habebimus liberum herbagium ad custum nostrum , nobis & omnibus hominibus nostris de familia nostra transeuntibus , &c. sine dat. penes wil. dugdale arm. herbenger , ( from the fr. herberger , i. hospitio accipere ) signifies with us an officer of the kings court , who allots the noblemen , and those of the houshold their lodgings . kitchin ( fol. . ) uses it for an inn-keeper . herciebant ( a gal. hercer , to harrow ) — arabant & herciebant ad curiam domini , i. they did plough and harrow at the mannor of the lord. inst . fol. . hereditaments ( haereditamenta ) signifie all such immovable things , be they corporeal , or incorporeal , as a man may have to himself and his heirs , by way of inheritance ( see hen. . cap. . ) or , not being otherwise bequeathed , do naturally , and of course descend to the next heir , and fall not within the reach of an executor or administrator , as chattels do . it is a word of great extent , and much used in conveyances ; for by the grant of hereditaments , isles , seigniories , mannors , houses , and lands of all sorts , charters , rents , services , advowsons , commons , and whatsoever may be inherited , will pass . coke on littl. fol. . haereditamentum est omne quod jure haereditario ad haeredem transeat . herefare ( sax. ) profectio militaris & expeditio . see subsidy . heregeat . see hariot . heregeld ( sax. ) pecunia seu tributum alendo exercitui collatum . see subsidy . heriot . see hariot . herestita or heressia , signifies a soldier hired , and departing without licence ; from the saxon here , exercitus ; & slitan , scindere , dissolvere ; not from sliten , to depart , as in inst . fol. . hermitage ( heremitagium ) the habitation of a hermite , a solitary place . vulgariter autem locus iste a laicis heremitagium nuncupatur , propter solitudinem ; non quod heremita aliquis aliquo tempore ibidem solebat conversari . mon. angl. par . fol. . b. hermitorium , is by some authors confounded with hermitage ; but i have seen it distinguished , to signifie the chappel , or place of prayer , belonging to an hermitage ; for i finde in an old charter . — capellam sive hermitorium . herpsac . see frodmortel . hesta or hestha . hestam intelligo pro capo seu gallo castrato , vel pullo quodam gallinaceo : a gal. hestoudeau , a cockerel or caponet . spel. see rusca . hest-corne . — in redeundo vero rex athelstanus , post peractam victoriam , declinavit per ebor. versus beverlacum , ac nonnullas possessiones redimendo , cullellum per 〈…〉 eum ibi depositum , dedit deo & glorioso confessori johanni praedicto , ac septem presbyteris ibidem deo servientibus — quasdam avenas , vulgariter dictas hestcorne , percipiendas de dominiis & ecclestis in illis partibus , quas ministri dictae ecclesiae , usque in praeseus percipiunt pacifice & quiete . mon. angl. par . fol. . b. hexam , was anciently a county of it self , and a franchise , where the kings writ went not ; but by the statute of eliz. cap. . hexam and hexamshire shall be within the county of northumberland . see inst . fol. . it was also of old a bishoprick by the name of episcopatus hagustaldensis . see mon. angl. par . fol. . hide of land ( sax. hyde-lands ab hyoen , tegere ) tanta fundi portio quanta unico per annum coli poterat aratro . a plough-land . in an old law manuscript it is said to be acres . bede calls it familiam , and says it is as much as will maintain a family . others say , it is four yardland . cromp. in his jurisd fol. . says , a hide of land contains one hundred acres , and eight hides make a knights fee. hida autem anglice vocatur terra unius aratri culturae sufficiens . hen. hunting . hist . lib. . but sir edward coke holds , that a knights fee , a hide or plough-land , a yard-land , or oxgang of land , do not contain any certain number of acres . on littl. fol. . the distribution of england by hides of land , is very ancient ; for there is mention of them in the laws of king ina , cap. . henricus . maritandae filiae suae gratia imperatori , cepit ab unaquaque hidâ angliae tres sol . spel. and see cam. brit. fol. . hide-lands . ( sax. hydelandes ) terrae ad hydamseu tectum pertinentes . hide and gain , did anciently signifie arable land. coke on littl. fol. . b. for of old to gain the land , was as much as to till , or are it . see gainage . hidage ( hidagium ) was an extraordinary tax , payable anciently for every hide of sand . bracton , lib. . ca. . writes thus of it . sunt etiam quaedam communes praestationes , quae servitia non dicuntur , nec de consuetudine veniunt , nisi cum necessitas intervenerit , vel cum rex venerit ; sicut sunt hidagia , coragia , & carvagia , & alia plura de necessitate , & ex consensu communi totius regni introaucta , & quae ad dominum feudi non pertinent , &c. king etheldred in the year of christ . when the danes landed at sandwich , taxed all his land by hides ; every hides of land found one ship furnished , and every hides found one jack , and one saddle for defence of the realm . willielmus conquestor de unaquaque hida per angliam sex solidos accepit . floren. wigorn. in an. . sometimes hidage was taken for the being quit of that tax ; which was also called hyde-gyld . hidel , ( anno hen. . ca. . ) seems to signifie a place of protection , or a sanctuary . hiis testibus . antiquity did add these words in the continent of the deed , after the in cujus rei testimonium , written with the same hand with the deed , which witnesses were called , the deed read , and then their names entred ; and this clause of hiis testibus in subjects deeds continued until and in the reign of hen. . but now is wholly omitted . coke on litt. fol. . hine , ( sax. ) a servant , or one of the family ; but , it is now taken in a more restrictive sence , for a servant at husbandry ; and , the master ●ine , he that oversees the rest . anno r. . ca. . hinefare , or heinfare ( from the sax. hine , a servant , and fare , a going or passage ) the going or departure of a servant from his master . — siquis occidit hominem regis & facit hein faram , dat. regi xx s. &c. domesday , tit . arcanfeld . hinegeld , significat quietantiam transgres . sionis illatae in servum transgredientem . ms. arth. trevor . ar. hirciscunda , the division of an inheritance among heirs . goldm. dict . actio hirciscundae . see action mixt . hird . i. domestica vel intrinseca familia . inter plac. trin. ed. . ebor. . ms. hithe . see hyth . hoastmen , ( anno jac. ca. . ) are an ancient gild or fraternity at newcastle upon tine , who deal in seacoal . hoblers , or hobilers ( hobelarii ) erant milites gregarii levi armatura & mediocri equo , ad omnem mutum agili , sub edouardo in gallia merentes . dicti ( ut reor ) vel ab istiusmodi equo , an hobby appellato , vel potius a gal. hobille , tunica . tabulae classes describentes in exercitu ejusdem edvardi caletem obsident . anno , sic habent . sub comite kildariae , banerets . knights . esquires . hobilers , &c. these were light-horsemen , or ( according to cowel ) certain tenants , who , by their tenure were bound to maintain a little light nag , for certifying any invasion ; or such like peril towards the sea-side , as portsmouth , &c. of which you may read ed. . stat. . ca. . and ejusdem . stat. . ca. . and cam. britan. fol. . duravit vocabulum usque at atatem , hen. . says spelman . gentz darmes & hobelours , see pryns animad . on inst . fol. . hock tuesday-money , was a tribute paid the landlord , for giving his tenants and bondmen leave to celebrate that day ( which was the second tuesday after easter week ) whereon the english did master the domineering danes . mr. fab. philips mistaken recompence , fo . . hockettor , or hocqueteur , is an old french word for a knight of the post ; a decay'd man , a basket-carrier . part inst . fol. ● . que nul enquerelant neu respoignant ne soit surpris neu cheson per hockettours , parent que la verite ne soit ensue . stat. ragman . hogenhine , ( rectius , third night awn hine . i. third night own servant ) is he that comes guest-wise to an inne or house , and lies there the third night , after which he is accounted of that family ; and , if he offend the kings peace , his host was to be answerable for him . see thirdnight-awn-hine . hokeday , otherwise called hock-tuesday , was the second tuesday after easter-week . — et ad festum s. mich. cum tenere voluerit . — senescallus curiam de la hele , habebit de celerario quinque albos panes & costrellos suos plenos cervisiae , & ad idem festum pro curia de kinnersdone de privilegiis tenendis , habebit totidem , & ad le hokeday totidem . mon. angl. par. fo . . b. see hocktuesday money . hogshead , is a measure of wine , oyle , &c. containing half a pipe , the fourth part of a tun , or gallons . anno r. . ca. . holm , ( sax. hulmus , ) insula amnica , a river island , according to bede ; sometimes found in ancient . deeds and records . coke on litt. fol. . — cum duobus holmis in campis de we done . mon. angl. . p. fo . . b. where it seems to have a different signification . homage , ( fr. ) is derived from homo , and is called homage , because when the tenant does this service , he says , i become your man ; it is also called manhood , as the manhood of his tenant and the homage of his tenant is all one . coke on litt. fo . . in the original grants of lands and tenements by way of fee , the lord did not onely tye his tenants to certain services , but also took a submission with promise and oath to be true and loyal to him , as their lord and benefactor . this submission is called homage , the form whereof you have in edw. . stat. . in these words . when a freeman shall do homage to his lord , of whom he holds in chief , he shall hold his hands together between the hands of his lord , and shall say thus , i become your man from this day forth for life , for member and for worldly honour , and shall owe you my faith , for the land i hold of you , saving the faith that i owe unto our soveraign lord the king , and to mine other lords . and in this manner the lord of the fee , for which homage is due , takes homage of every tenant , as he comes to the land or fee. glanv . lib. . ca. . except women , who perform not homage , but by their husbands ( yet fitz. in his nat. br. fol. . sayes the contrary ) because homage specially relates to service in war. he says also , that consecrated bishops do no homage , but onely fealty ; the reason may be all one ; yet the archbishop of canterbury does homage on his knees to our kings at their coronation ; and , i have read , that the bishop of the isle of man is homager to the earl of derby . fulbec reconciles this , fol. . in these words ; by our law a religious man may do homage , but may not say to his lord , ego devenio homo vester , because he has professed himself to be onely gods man ; but , he may say , i do unto you homage , and to you shall be faithful and loyal . see britton , ca. . homage is either new with the fee , or ancestrel . homage is also used for the jury in a court baron , because it commonly consists of such as owe homage to the lord of the fee. this homage is used in other countreys as well as ours , and was wont to be called hominium . see hotoman de verbis feud . verbo homo . homage auncestrel , is , where a tenant holds his land of his lord by homage , and the same tenant and his ancestors , ( whose heir he is ) have holden the same land of the same lord and his ancestors , whose heir the lord is , time out of memory of man , by homage , and have done them homage ; such service draws to it warrantry from the lord , &c. thus littleton . in this example here put ( says sir edward coke ) there must be a double prescription , both in the blood of the lord and of the tenant ; and therefore , i think there is little or no land at all at this day holden by homage ancestrel : yet , i have been credibly informed , that in the mannor of whitney , in herefordshire , whose lord is of the same name , and the family has been seated and continued there for many ages ; is one west a tenant , who can perfectly prescribe to hold his land of tho. whitney esq the present lord thereof , by homage ancestrel . homager , ( from the fr. hommage , ) one that does , or is bound to do homage to another . as the bishop of the isle of man is said to be homager to the earl of derby . see homage . homagio respectuando , was a writ to the escheator , commanding him to deliver seisin of lands to the heir , that is of full age , notwithstanding his homage not don . fitz. nat. br. fol. . homesoken , rectius hamsoken , & hamsoca , ( from the sax. ham. i. domus , habitatio , & socne , libertas , immunitas ) is by bracton , lib. . tract . . ca. . ) thus defined , homesoken dicitur invasio domus contra pacem domini regis . it appears by rastal , that in ancient times some men had an immunity to do this . si quis hamsocam violaverit , jure anglorum regi emendet libr. ll. canuti . cap. . hamsoken est quod prior tenebit placita in curia sua de his qui ingrediuntur domum vel curiam alicujus ad litigandum vel furandum vel quicquid asportandum , vel aliquod aliud faciendum , contra voluntatem illius qui debet domum vel curiam . ex reg. priorat . de cokesford . see hamsoken . homicide , ( homicidium ) is the slaying of a man , and it is divided into voluntary and casual . voluntary homicide is that , which is deliberated and committed of a set purpose to kill ; casual is that which is done by chance , without any intention to kill . homicide voluntary is either with precedent malice , or without ; the former is murder , and is the felonious killing , through malice prepensed , of any person living in this realm under the kings protection . west . par . . symb. tit . inditements , sect. . usque ad . where you may see divers subdivisions of this matter . see also glanvil , lib. . ca. . and coke on litt. lib. . ca. . see murther , manslaughter and chancemedley . homine eligendo ad custodiendam peciam sigilli pro mercatoribus aediti , is a writ directed to a corporation , for the choice of a new man to keep one part of the seal , appointed for statutes-merchant , when the other is dead , according to the statute of acton burnel . reg. of writs , fol. . a. homine replegiando , is a writ for the bailing a man out of prison . in what cases it lies , see fitz. nat. br. fol. . and reg. of writs , fol. . homine capto in withernamium , is a writ to take him that has taken any bondman or woman , and led him or her out of the county , so that he or she cannot be replevied according to law , reg. of writs , fol. . a. see withernam . hond-habend , ( from the sax. hond , hand , and habens , having ) signifies a circumstance of manifest theft , when one is deprehended with the thing stoln in his hand . bract. lib. . tract . . ca. . & . who also uses handberend in the same sence , sc . latro manifestus . hond-peny . — et sint quieti de chevagio , hond-peny , buckstall & tristris & de omnibus misericordiis , &c. privileg . de semplingham . quaere . honor , is , besides the general signification , used especially for the more noble sort of seigniories , whereof other inferior lordships or mannors depend , by performance of some customs or services to those who are lords of them . ( though anciently honor and baronia signify'd the same thing . ) uti manerium plurimis gaudet ( interdum feodis , sed plerumque ) tenementis , consuetudinibus , serviciis , &c. ita honor plurima complectitur maneria , plurima feoda militaria , plurima regalia , &c. dictur etiam olim est beneficium seu feodum regale , tentusque semper a rege in capite . spel. the manner of creating these honors by act of parliament , may in part be gather'd out of the statutes hen. . ca. , . and ejusdem , ca. . where ampthil , grafton and hampton court , are made honors . and by hen. . ca. . the king is empowred by letters-patent , to erect four several honors , viz. westminster , kingston upon hull , st. osyths and donnington , and as many other honors as he will. in reading several approved authors and records i have observed these following to be likewise honors , viz. the honors of aquila , clare , lancaster , tickhil , wallingford , nottingham , boloine , westgreenwich ; bedford , barkhamstead , plimpton , cre●ecure , haganet , east-greenwich , windsor , bealieu , peverel , ramesey , skipton , wyrmsgay , clinn , raleigh , montgomery , wigmore , huntingdon , eye , baynards castle , glocester , arundel , heveningham , cockermouth , bullingbroke , folkingham , leicester , hinkley , whithurch , hertford , newelme , chester , lovetot , pickering , mardstone , tuttebury , warwick , breghnok , or brecnok , bre●mber , halton . and , in a charter of hen. . i find mention of the honors of kaermardin and cardigan . sciatis communiter , me — accepisse in manu mea & defensione totum honorem ecclesiae de rameseie , &c. charta gulielmi i. abbati rames . sect. . see cam. britan. fol. , , , & , &c. bakers chro. fol. . inquis . edw. . cokes inst . fol. . mag. charta , cap. . reg. orig. fol. . cromp. juris . fol. . broke , tit . tenure , num . , &c. this word is used in the same signification in other nations . honor courts , are courts held within the honors aforesaid , mentioned hen. . cap. . and ejusdem . cap. . honorary services , ( anno car. . cap. . ) are such as are incident to the tenure of grand serjeanty , and annexed commonly to some honor or grand seigniory . hontfongenethef . — cum omnibus aliis libertatibus , tantummodo hontfongenethef mihi retento . carta wil. comitis marescalsi . in mon. angl. par. fol. . this should have been written hondfangenethef , and signifies a theif , taken with hondha-bend , i. having the thing stoln in his hand . hornebeam-pollengers , are trees so called , that have usually been lopped , and are above twenty years growth , and therefore not tythable . plowden , casu , soby , fol. . horngeld ( from the sax. hofn , cornu & gel● , soltitio ) signifies a tax within the forest , to be paid for horned beasts . cromp. juris . fol. . and to be free of it , is a priviledge granted by the king to such as he thinks good ; quietum esse de omni collectione in foresta de bestiis cornutis asses . inst fol. . — et sint quieti de omnibus geldis , & danegeldis , & vodgeldis , & senegeldis , & horngeldis , &c. diploma . hen. . canonicis & monialibus de semplingham . see subsidy . hors de son fée ( fr. i. out of his fee ) is an exception to avoid an action brought for rent , issuing out of certain land , by him that pretends to be the lord , or for some customs and services : for if , the defendant can prove the land to be without the compass of his fee , the action falls . see district and broke , hoctitulo . hospitalers ( hospitalarii ) were a certain order of religious knights , so called , because they built an hospital at jerusalem , wherein pilgrims were received : to these pope clement the fifth transferred the templers , which order , by a council held at vienne , he suppressed , for their many and great misdemeanors . these hospitalers were otherwise called knights of s. john of jerusalem , and are now those we call the knights of s. john of malta . cassan . gloria mundi , part . . consid . . this constitution was also obeyed in edward the second's time here in england , and confirmed by parliament . walsinghams hist . edw. . these are mentioned edw. . cap. . and hen. . cap. . they had many priviledges granted them by the popes , as immunity from payment of tythes , &c. their lands and goods were put into the kings dispose by stat. hen. . cap. . see mon. angl. part . fol. . hotchpot ( fr. hochepot ) a confused mingle-mangle of divers things jumbled or put together ; so also of lands of several tenures . as , a man seised of thirty acres of land in fee , hath issue two daughters , and gives with one of them ten acres in franc-marriage , and dies seised of the other twenty : now , if she , that is thus married , will have any part of the twenty acres , she must put her lands given in franc-marriage , in hotchpot , that is , she must refuse to take the sole profits of the ten acres , but suffer them to be mingled with the other twenty acres ; to the end , an equal division may be made of the whole thirty , between her and her sister ; and thus , for her ten acres , she shall have fifteen , otherwise her sister will have the twenty acres of which the father died seised . littleton , fol. . coke on littl. lib. . cap. . britton , fol. . housabold and hoybold — et similiter concessionem quam idem willielmus de lancastre fecit eisdem ( abbati & canonicis de cokersand ) & eorum tenentibus villae de gairstang , tam qui essent , quam qui fuerunt de housabold and hoybold cum omnibus aliis libertatibus eidem villae pertin . mon. angl. par . fol. . a. quaere . house-bote ( compounded of house and bote , i. compensatio ) signifies estovers , or an allowance of timber , out of the lords wood , for the repair or upholding a house or tenement . housebote ( says coke on littl. fol. . b. ) is twofold , viz. estoverium aedificandi & ardendi . house-robbing or house-breaking ( sax. hous-bryc ) is the robbing a man in some part of his house , or his booth or stall in any fair or market , and the owner or his wife , children or servants being within the same : this was felony by hen. . cap. . and edw. . cap. . but now it is felony , though none be within the house , by eliz. cap. . see burglary , and west , part . . symb. tit . indictments , sect . . hudegeld , significat quietantiam transgression is illatae in servum transgredientem . supposed to be mistaken by fleta or mis-printed for hinegeld . hue and cry ( hutesium and clamor , from the fr. huer and crier , both signifying to shout , and cry out aloud ) signifies a pursuit of one who hath committed felony by the high-way ; for if the party robbed , or any in the company of one murdered or robbed , come to the constable of the next town , and will him to raise hue and cry , or to pursue the offendor , describing the party , and shewing , as near as he can , which way he is gone , the constable ought forthwith to call upon the parish for aid in seeking the felon ; and if he be not found there , then to give the next constable warning , and he the next , until the offendor be apprehended , or at least thus pursued to the sea-side . of this read bracton , lib. . tract . . cap. . smith de repub. anglor . lib. . cap. . and the statutes edw. . of winchester , ca. . — ed. . cap. . and eliz. cap. . the normans had such a pursute with a cry after offenders , as this is , which they called haro , of which you may read the grand customary , ca. . hue is used alone , anno ed. . stat. . in ancient records this is called hutesium & clamor . see cokes part instit . fol. . mandatum est gulielmo de haverhul thesaurario regis , quod civitatem london capiat in manum regis , eo quod cives ejusdem civitatis non levaverunt hutesium & clamorem pro morte magistri guidonis de aretio & aliorum interfectorum , secundum legem & consuetudinem regni . rot. claus . h. . m. . huers . see conders . huissiers . see usher . hulm . see holm . hundred , ( hundredum , centuria , ) is a part of a shire so called ; either because at first there were an hundred towns and villages in each hundred , or because they did find the king able men for his warrs . these were first ordain'd by king alfred , the th king of the west - saxons : aluredus rex , ( sayes lambert , verbo , centuria ) ubi cum guthruno daco foedus inierat , prudentissimum illud olim a jethrone moisi datum secutus consilium , angliam primus in satrapias , centurias & decurias , partitus est . satrapiam , shyre , a scyrian , ( quod partiri significat ) nominavit ; centuriam , hundred , & decuriam , toothing sive tienmantale , i. decemvirale collegium appellavit ; atque iisdem nominibus vel hodie vocantur , &c. this dividing counties into hundreds , for better government , king alfred brought from germany ; for there centa or centena is a jurisdiction over a hundred towns. this is the original of hundreds , which still retain the name , but their jurisdiction is devolved to the county court , some few excepted , which have been by priviledge annexed to the crown , or granted to some great subject , and so remain still in the nature of a franchise . this has been ever since the stat. edw. . stat. . c. . whereby these hundred courts , formerly farmed out by the sheriff to other men , were all , or the most part reduced to the county court , and so remain at present . so , that where you read now of any hundred courts , you must know they are several franchises , wherein the sheriff has not to do by his ordinary authority , except they of the hundred refuse to do their office. see west , part . symbol . lib. . sect. . — ad hundredum post pascha , & ad proximum hundredum post festum st. mich. — mon. angl. p. fol. . a. the word hundredum is sometimes used for an immunity or priviledge , whereby a man is quit of hundred-peny , or customes due to the hundreder . see turn . hundreders , ( hundredarii ) are mon impanneld , or fit to be empannel'd , of a jury , upon any controversie , dwelling within the hundred , where the land in question lies . cromp. jur. fol. . anno hen. . ca. . it also signifies him that has the jurisdiction of a hundred , and holds the hundred court. an. ed. . ca. . — edw. . stat. . & edw. . ca. . and 't is sometimes used for the bayliff of an hundred . horns mirror , lib. . ca. del office del coroner . hundred-lagh , ( from hundred , and the sax. laga . i. lex . ) signifies the hundred court , from which all the officers of the kings forrest were freed , by the charter of canutus , ca. . manwood , part . pa. . see warscot . hundred-penny , — est autem pecunia quam subsidit causa vicecomes olim exigebat ex singulis decuriis sui comitatus , quas tethingas , saxones appellabant ; sic ex hundredis , hundred-penny . spel. pence of the hundred , cam. brit. fol. . hundred-setena — et habeant socam & sacam on strond & on streme , on wode & on felde , grithbrice , hundred-setena , adas & ordelas , &c. carta edgari regis monast . glaston . anno regni . mon. angl. . p. fo . . b. saeta , or setena , in composition signifies dwellers , or inhabitants . — debent habere constitutionem hundredi , quod angli dicunt hundred-setene , text. roff. hurst , ( sax. hyrst , ) a wood , or plump of trees . huscarle , ( sax. ) a domestic servant , or one of the family . the word is often found in domesday , where we find the town of dorchester paid to the use of houscarles one mark of silver . see karles . hus & hant. quidam h. p. captus per querimoniam mercatorum flandriae & imprisonatus offert domino regi hus & hant in plegio ad standum recto , & ad respondendum praedictis mercatoribus & omnibus aliis , qui versus eum loqui voluerint . et diversi veniunt qui manucapiunt quod dictus h. p. per hus & hant veniet ad summonitionem regis vel concilii sui in curia regis apud shepweye & quod stabit ibi recto , &c. placita curiae regis anno hen. . rot . . quaere , an non sit commune plegium , sicut jo. do. & ric. ro. see inst . fol. . huseans , ( fr. houseau , ) a kind of boot , or somewhat made of course cloth , and worn over the stocking , in stead of a boot , a buskin . it is mentioned in the stat. . edw. . ca. . husfastne , ( from the sax. hus i. domus , & fast , fixus , quasi domui fixus , ) is he that holdeth house and land. et in franco plegio esso debet omnis qui terram tenet & domum , qui dicuntur husfastne , & etiam alii qui illis deserviunt , qui dicuntur folgheres , &c. bracton , lib. . tract . . ca. . some authors corruptly write it . hurderefest & hurdesfest , rectius heordfeste , which see in gloss . in decem scriptor . husseling people . in a petition from the borough of leominster to king edward the sixth , the petitioners set forth , that in their town , there were to the number of husseling people , &c. that is , communicants ; for , husel in saxon signifies the holy eucharist . hustings , ( hustingum , from the sax. hus , domus & thing , causa , quasi domus causarum ) antiquissima & celeberrima londoniarum civitatis curia suprema , the principal and highest court in london . hen. . ca. . and ed. . ca. unico . of the great antiquity of this court , we find this honourable mention in the laws of king edward the confessor , — debet etiam in london , quae est caput regni & legum , semper curia domini regis singulis septimanis die lunae hustingis sedere & teneri ; fundata enim erat olim & aedificata ad instar & ad modum & in memoriam veteris magnae troiae . & usque in hodiernum diem leges , & jura & dignitates , libertates , regiasque consuetudines antiquae magnae trojae in se continet — & consuetudines suas una semper inviolabilitate conservat . see taylors hist . of gavelkind , p. . this court is held before the mayor and aldermen of london . error or attaint lies there of a judgment or false verdict in the sheriffs court , as appears by fitz. nat. br. fol. . other cities and towns also have had a court of the same name , as winchester , lincoln , york , sheppey , &c. where the barons or citizens have a record of such things as are determinable before them . fleta , lib. . ca. . stat. edw. . ca. unico . see inst . fol. . and gloss . in decem scriptores , on this word . hyde of land. see hide . hyde-gyld , ( sax. hyd-gyld ) a price or ransom paid to save ones skin , ( from beating . ) also the same with hidage .. hyth , ( sax. ) a port , or ( little ) haven , to imbark , or land wares at , as queen-hyth , lamb-hythe , &c. new book of entries , fo . . — de tota medietate hithae suae apud hengestesey , cum libero introitu & exitu , &c. mon. angl. par. fo . . n. . i. jack , ( olim wambasium ) erat tunica , quod non ferro solido , sed tunicis plurimo lino intextis muniebatur ; a kind of defensive coat worn by horsemen in warr , which some by tenure were bound to find , upon any invasion . see hidage . jactivus , & jectivus , ( lat. ) he that loseth by default . placitum suum neglexerit & jactivus exinde remansit . formul . solen . . jamaica , is one of the american islands , lying on the south of cuba ; its length from east to west about leagues , and breadth , the middle of it under the th degree of northern latitude . it was taken from the spaniard by the english , in the year , and is mentioned in the stat. gar. . ca. . jamaica-wood , ( mentioned car. . ca. . ) is a kind of speckled or fine-grain'd wood , of which cabinets are made ; called in jamaica , granadillo ; the tree is low and small , seldom bigger then a mans leg . jampnum , furze , or gorse , and gorstyground . part croke , fo . . a word much used in fines ; and seemes to be taken from the fr. jaulne . i. yellow ; because the blossomes of furze , or gorse are so . yet sir edw. coke on litt. pa. . sayes , jampna signifies a waterish place . quaere . jarr , ( span. jarro . i. an earthen pot ) with us it is taken for an earthen pot , or vessel of oyl , containing twenty gallons . jarrock , ( anno rich. . ca. . ) is a kind of cork so called , with which this statute prohibits dyers to dye cloth. identitate nominis , is a writ that lies for him , who is taken upon a capias or exigent , and committed to prison , for another man of the same name ; whereof see the form and further use in fitz. nat. br. fo . . and reg. of writs , fol. . idemptitate nominis maintainable by executors , &c. anno hen. . ca. . ides , ( idus , ) eight dayes in every moneth , so called : in march , may , july and october , these eight dayes begin at the eighth day of the moneth , and continue to the fifteenth ; in other moneths they begin at the sixth day , and continue to the thirteenth : note , that the last day onely is called ides , and the first of these dayes the eighth ides , the second the seventh ides , that is , the eighth or seventh day before the ides , and so of the rest . therefore when we speak of the ides of such a moneth in general , it is to be understood of the th or th day of that moneth . see calends . ideot , is a greek word , properly signifying a private man , who has no publick office ; among the latins it is taken for illiteratus , imperitus , and in our law for non compos mentis , vulgarly , a natural fool . the words of the statute , ( ed. . ca. . ) are rex habebit custodiam terrarum fatuorum naturalium — whereby it appears he must be a natural fool , that is , a fool a nativitate ; for , if he were once wise , and became a fool by chance , or misfortune , the king shall not have the custody of him . stam. praerog . ca. . fitz. nat. br. fol. . if one have so much understanding as to measure a yard of cloth , number pence , or rightly name the dayes in the week , or beget a child , he shall not be accounted an ideot , or natural fool , by the laws of the realm . see cokes rep. beverlys case . idiota inquirenda vel examinanda , is a writ directed to the escheator or sheriff of any county ( where the king hath notice of an idiot , naturally born so weak of understanding , that he cannot manage his inheritance ) to call before him the party suspected of idiocy and examine him , and to enquire by the oaths of twelve men , whether he be sufficiently witted to dispose of his own lands with discretion or not , and to certifie accordingly into chancery ; for the king hath by his prerogative the protection of his subjects , and the government of their lands and substance ; who are naturally defective in their discretion . stat. edw. . cap. . reg. of writs , fol. . jeman , sometimes used for yeoman . sciant — quod ego johannes smith de bromyard in com. heref. jeman dedi — ricardo wiggemore arm. omnia terr . & tenementa , &c. dat. jan. anno hen. . jeofaile , is a corruption from the fr. i'ay faille , i. ego lapsus sum , and signifies an oversight in pleading , or other law proceedings and by the stat. hen. . cap. . it is enacted , that if the jury have once passed upon the issue , though afterwards there be found a jeofail in the pleading , yet judgment shall be given , according to the verdict . see broke , tit . repleader . a jeofail is , when the parties to a sute , have proceeded to issue , and this pleading or issue is so badly pleaded or joyned , or the proceedings so defective , that it will be error , if they proceed . then some of the said parties might by their council shew it to the court , which occasioned many delays in sutes , for redress whereof , the foresaid statute with others in queen elizabeth , and king james raigns were made , and yet the fault not much amended . jetsen , jetzon , and jotson ( from the fr. jetter , i. ejicere ) is any thing cast out of a ship , being in danger of wreck , and driven to the shore by the waves . see flotson . jews ( judaei ) see judaism . anciently we had a court of the justices assigned for the government of the jews . see instit . fol. . rex — vic. wigorn. salutem . praecipimus tibi , quod clamari & observari facias per totam balivam tuam , quod omnes judaei deferant in supeperiori indumento suo ubicunque ambulaverint vel equitaverint , infra villam vel extra , quasi duas tabulas albas in pectore factas de lineo panno vel de pergameno ; ita quod per hujusmodi signum manifestè possint judaei a christianis discerni . t. comite apud oxon. martii . claus . hen. . p. . m. . in dorso . ignitegium . see curfeu . ignoramus ( i we are ignorant ) is properly written on the bill of indictments by the grand enquest , empanelled in the inquisition of causes criminal and publick , when they mislike their evidence , as defective or too weak to make good the presentment . the effect of which word so written is , that all farther enquiry , upon that party , for that fault , is thereby stopped , and he delivered without farther answer : it hath a resemblance with that custom of the ancient romans , where the judges , when they absolved a person accused , wrote a. upon a little table , provided for that purpose . i. absolvimus . if they judged him guilty , they wrote c. i. condemnamus . if they found the causes difficult , and doubtful , they wrote n. l. i. non liquet . ikenild-stréet , ( stratum icenorum ) is one of the four famous ways which the romans made in england , taking name ab icenis , who were the inhabitants of norfolk , suffolk , and cambridgshires . cam. brit. fol. . see watling-street , and ll. edovardi confess . cap. . illeviable , that ought not , or may not be levied . as , nihil is a word set upon a debt illeviable . imbargo ( span ) a stop or stay , commonly upon ships by publick authority . anno car. . cap. . imbezle or imbesil . to steal , pilfer , or purloyn . mentioned anno car. . cap. . imbracery . see embracery . imparlance ( interlocutio or interloquela ) is a motion or petition made in court by the the tenant or defendant , upon the count of the demandant or declaration of the plaintiff ; whereby he craves respight or a further day to put in his answer . see broke , tit . continuance . imparlance is general or special : special is with this clause , salvis omnibus advantagiis , tam ad jurisdictionem curiae , quam breve & narrationem . kitchin , fol. . general , is that which is made at large , without inserting that , or the like cause . see emparlance . imparsonée , as parson imparsonee ( persona impersonata ) is he that is inducted , and in possession or a benefice . dyer , ( fol. . num . . ) says a dean and chapter are persons impersonees of a benefice appropriate to them . impeachment of waste , ( impetitio vasti ) from the fr. empeschement , i. impediment ) signifies a restraint from committing waste upon lands or tenements . see waste . impediens — haec est finalis concordia facta in curia domini regis apud westm . in octabis sancti hillaris , anno regni regis henrici filii regis johannis septimo , coram thoma de multon , &c. inter willielmum de mohun querentem & will. brewere impedientem de manerio de clynton , &c. et unde placitum de escambio faciendo summonit . fuit inter eos in eadem curia , &c. where impedientem seems to be used for defendentem or deforcientem . impetration ( impetratio ) an obtaining by request and prayer . it is used in our statutes for the pre-obtaining of benefices and church offices in england , from the court of rome , which did belong to the gift and disposition of our lord the king , and other lay patrons of this realm . the penalty whereof was the same with provisors . edw. . see edw. . stat. . cap. . impierment ( anno hen. . cap. . ) signifies as much as impairing or prejudicing : for the words of the statute are — to the great impierment and diminution of their good names . implements ( from impleo , to fill up ) are such things , as tend to the necessary use of any trade , or furniture of a house . implead ( from the fr. plaider ) to sue , arrest , or prosecute by course of law. impost ( fr. ) tribute , tallage , or custom ; but more particularly it is that tax which the king receives for such merchandises as are imported into any haven , from other nations . eliz. cap. . and it may be distinguished from custom , which is rather that profit which the king raises from wares exported ; but they are sometimes confounded . imprimery ( fr. ) a print , impression ; also , the art of printing , or a printing-house . anno car. . cap. . impropriation ( of which , there are in england . ) see appropriation . improbement . see approve . in alto & imo . the same with alto & basso . inborh and out-borh . ( sax. ) vide camd. britan. in ottadinis : ubi patricium comitem dunbarrensem , aevo hen. tertii , inborow & out-borow inter angliam & scotiam appellat , i. ( si fas sit a doctissimi viri sententia recedere ) fidejussorem omnium ex uno in alterum regnum iter facientium , sive inter utraque regna viatorum . simile babes in s. c. de monticulis walliae , inter ll. saxonicas , cap. . sax. dict. in casu consimili . is a writ . see casu consimili . in casu proviso , is another . see casu proviso . inchanter ( incantator ) is he , or she , qui carminibus vel cantiunculis daemonem adjurat . they were anciently called carmina , because in those days , their charms were in verse . part. inst . fol. . incident ( incidens ) signifies a thing appertaining to , or following another , that is more worthy or principal . as a court baron is so incident to a mannor , and a court of picpowders to a fair , that they cannot be severed by grant. kitchin , fol. . see coke on littl. fol. . b. incroche . admirals and their deputies do incroche to themselves divers jurisdictions , &c. anno rich. . cap. . see encrochments . incumbent ( from incumbo , i. to endeavor earnestly ) is a clerk who is resident on his benefice with cure. coke on littl. fol. . b. and is so called , because he does or ought to bend all his study to the discharge of the cure. hen. . . and & phil. & ma. cap. . inderimable ( indecimabilis ) that is not tythable , or ought not ( by law ) to pay tythe . part. inst . fol. . indenture ( indentura ) is a writing comprising some contract , conveyance , or covenant , between two or more , and being indented in the top answerable to another part , which hath the same contents , it thence takes name ; and differs from a deed poll , which is a single deed unindented . coke on littl. fol. . the civilians define an indenture to be scriptura inter creditorem & debitorem indentata , &c. indefeisible , that cannot be defeated , undone , or made void : as , a good and indefeisible estate , &c. indefensus , one that is impleaded , and refuseth to answer . ms. de temp . e. . indicavit , is a writ or prohibition that lies for a patron of a church , whose clerk is defendant in court christian , in an action of tythes , commenced by another clerk , and extending to the fourth part of the church , or of the tythes belonging to it : for in this case , the sute belongs to the kings court , by the statute of westm . . cap. . wherefore the patron of the defendant , being like to be prejudiced in his church and advowzen , if the plaintiff obtain in the court christian , hath this means to remove it to the kings court. reg. of writs , fol. . b. and britton , cap. . indictor , he that indicteth another man for any orfence . stat. edw. . cap. . and indictee , he that is so indicted . anno jac. cap. . inditement . see enditement . indivisum , is used for that which two hold in common without partition . kitchin , fol. . in these words , he holds pro indiviso , &c. indorsed ( indorsatus ) signifies any thing written on the backside of a deed , as a condition endorsed on the backside of an obligation ; the sealed and delivered , &c. on the back of an indenture , is called the indorsement . induction ( inductio ) a leading into . it is most commonly taken for the giving an incumbent livery and seisin ( as it were ) of his church , by leading him into it , and delivering him the keys of it , by the commissary or bishops deputy , and by his ringing one of the bells . see part. crokes rep. fol. . in esse ( anno jac. cap. . ) in being philosophers contra-distinguish things in esse , from things in posse , or in potentia . as , a childe before he is born , or even conceived , is a thing in posse , or which may be : after he is born , he is said to be in esse , or actual being . infangthef , infang-theof , or infangenetheof , ( from the sax. fangan , capere ) signifies in the old saxon latronem infra captum , i. taken within the mannor or liberty of any man , having jurisdiction , granted by the king , to try such theif within his fee. anno & phi. & ma. cap. . a charter of henry the first to sir benedict rames , and s. ivo , the archbishop , hath these words — cum saka & seca & cum tol , & theam , & cum infra capto fure — in the laws of s. edward the confess . cap. . thus , qui habet sacam & socam , thol & theam , & infangthef , justitia cognoscentis latronis sua est , de homine suo , si captus fuerit super terram suam , &c. infangthef , i. quod latrones capti in dominio vel feodo prioris , & de latrocinio convicti in curia domini prioris judicentur & ad furcas ejus suspendentur . ex reg. priorat . de cokesford . see bracton , lib. . tract . . cap. . who says , ( inter al. ) et dicitur infangethef latro captus in terra alscujus , de hominibus suis propriis , seisitus latrocinio . utfangthefe verò dicitur latro extraneuae , veniens aliunde de terrâ alienâ , & qui captus fuit in terrâ ipsius qui tales habet libertates , &c. see also sir hen. spelmans learned glossarium . in forma pauperis , is when any man , who hath just cause of sure in chancery , and will make affidavit , that he is not worth five pounds , his debts being paid , then upon a petition to the master of the rolls , he shall be admitted to sue in forma pauperis , and shall have council , and clerks assigned him , without paying fees , and the like by the judges of other courts . information for the king ( informatio pro rege ) is that which , for a common person we call a declaration , and is not always preferred directly by the king of his atturney ; but also by some other person , who prosecutes , as well for the king , as for himself , upon the breach of some penal law or statute , wherein a penalty is given to the party that will sue for the same , and may either be by action of debt or information . informatus non sum , or non sum informatus , is a formal answer made of course by an atturney , who is not instructed to say any thing material , in defence of his clients cause , by which he is deemed to leave it undefended , and so judgment passeth against his client . see the new book of entries , verbo , non sum informatus . informer ( informator ) is one who informs or prosecutes in the exchequer , kings bench , or common pleas , assises , or sessions , against those that offend or break any laws , or penal statutes : and are sometimes called promotors ; by the civilians , delatores . ingressu , is a writ of entry , whereby a man seeks entry into lands or tenements , and lies in divers cases , wherein it hath as many diversities of forms . see entry . this writ is also called in particular praecipe quod reddat , because those are formal words in all writs of entry . de ingressu sine assensu capituli , &c. ( reg. of writs , fol. . ) is a writ given by the common law to the successor of him , who alienated sine assensu capituli , &c. and is so called from those words contained in the writ . coke on littl. fol. . b. ingrossator magni rotuli . see clerk of the pipe. in grosse , is that which belongs to the person of the lord , and not to any mannor , lands , &c. as villain in grosse . advowzen in grosse , &c. coke on littl. fol. . b. ingrossing of a fine , is making the indentures by the chirographer , and the delivery of them to the party to whom the cognisance is made . fitz. nat. br. fol. . a. ingrosser ( ingrossator ) is one that buys corn growing , or dead victuals to sell again , except barley for malt , oats for oat-meal , or victuals to retail ; badging by licence and buying of oyls , spices and victuals , other then fish or salt. anno edw. . cap. . — ; eliz. cap. . — eliz. cap. . these are the words of wests symbol . par . . tit . indictments , sect . . but this definition rather belongs to unlawful ingrossing , then to the word in general . see forestaller , and part. inst . fol. . ingrosser , is also a clerk that writes records or instruments of law in skins of parchment ; as in henry the sixth's time , he , who is now called clerk of the pipe , was called ingrossator magni rotuli , and the comptroller of the pipe was called duplex ingrossator . spelm. inheritance ( haereditas ) is a perpetuity in lands or tenements to a man and his heirs : for littleton , lib. . cap. . saith this word is not onely understood , where a man hath inheritance of lands and tenements by descent of heritage ; but also every fee-simple or fee-tail that a man hath by his purchase may be called inheritance , because his heirs may inherit him . several inheritance is that which two or more hold severally , as if two men have land given to them , and the heirs of their two bodies , these have joynt estate during their lives , but their heirs have several inheritance . kitchin , fol. . a man may have an inheritance . in title of nobility , three manner of ways . . by creation . . by descent . and . by prescription . inhibition ( inhibitio ) is a writ to forbid a judge from farther proceeding in the cause depending before him . see fitz. nat. br. fol. . where he confounds inhibition and prohibition . but inhibition is most commonly a writ issuing out of a higher court christian to an inferior , upon an appeal . anno hen. . cap. . and car. . cap. . and prohibition , out of the kings court , to a court christian , or an inferior temporal court. injunction ( injunctio ) is a writ grounded upon an interlocutory order of the chancery ; sometimes to give possession to the plaintiff , for want of appearance in the defendant ; sometimes to the kings ordinary court , and sometimes to the court christian , to stay proceeding in a cause , upon suggestion made , that the rigor of the law , if it take place , is against equity and conscience in that case . see west , par. . symbol . tit . proceedings in chancery . sect . . inlagh or inlaughe ( inlagatus ) signifies him that is ( sub lege ) in some frank-pledge , not out-lawed , of whom , thus bracton , tract . . lib. . cap. . faemina utlagari non potest , quia ipsa non est sub lege , i. inlaughe , anglicō , scil . in franco plegio , sive decenna , sicut masculi annorum vel amplius . inlagary or inlagation ( inlagatio ) is a restitution of one outlawed , to the protection of the law , or to the benefit or liberty of a subject . from the sax. in-lagian , i. inlagare . — et ex eo seipsum legis patrocinii adeo capacem . reddat , ut ad compensationem admittatur . ll. canuti reg. pag. . cap. . inland ( inlandum ) terra dominicalis , pars manerii dominica , terra interior ; for that which was let out to tenants was called utland . in the testament of brithericus , in itinerar kantii ; thus , to wulsege that inland ] to aelfege that utland , i. lego terras dominicales wulfego , tenementales aelfego . thus englished by lambert , to wulfée ( i give ) the inland or demeans , and to elfey the outland or tenancy . — ex dono wil. de eston . acras de inlanda sua . rot. cart. hen. . m . this word is often found in domesday . inleased ( fr. enlasse ) intangled or insnared . the word is found in the champions oath . part. cokes inst . fol. . inmates , are those that are admitted to dwell for their money joyntly with another man , though in several rooms of his mansion-house , passing in and out by one door , and not being able to maintain themselves ; which are inquirable in a leet . kitchin , fol. . where you may finde who are properly inmates in intendment of law. innes of court ( hospitii curiae ) are so called , because the students therein , do there not onely study the laws , but use such other exercises , as may make them more serviceable to the kings court. fortescu , cap. . of these there are four well known , viz. the inner temple , middle temple , lincolns inn , and greys inn. these , with the two serjants inns , and eight inns of chancery , do altogether ( to use sir edward cokes words ) make the most famous university , for profession of law onely , or of any one humane science in the world. of which , see mr. dugdales origines juridiciales at large . innotescimus , letters patent so called , which are always of a charter of feofment or some other instrument , not of record ; and so called from the words in the conclusion , innotescimus per presentes . an innotescimus & vidimus are all one . see pages case , rep. innuendo ( from innuo , to beck or nod with the head , to signifie ) a word used in writs , declarations , and pleadings , and the office of it is onely to declare and ascertain the person or thing , which was named or left doubtful before ; as to say , he ( innuendo , the plaintiff ) is a theif , when as there was mention before of another person . innuendo may not enlarge the sence of the words , nor make a supply , or alter the case where the words are defective . huttons rep. fol. . inpeny and outpeny . in the register of the monastery of cokesford , pag. . thus , — de inpeny & outpeny consuetudo talis est in villa de east rudham de omnibus terris quae infra burgagium tenentur ; viz. quod ipse , qui vendiderit vel dederit dictam tenuram alicui , dabit pro exitu suo de eadem tenurâ unum denarium , pro ingressu suo . et si predicti denarii a retro fuerint , ballivus domini distringet pro eisdem denariis in eadem tenura . — these words and custom , are also mentioned in the rolls of a court there held , about the feast of the epiphany , anno rich. . spelm. inquirendo , is an authority given to any person to enquire into something for the kings advantage ; in what case it lies . see reg. of writs , fol. , , , . inquisition ( inquisitio ) is a manner of proceeding by way of search or examination , in matters criminal , by the great enquest before justices in eyre . it is also used in the kings behalf in temporal causes and profits , in which sence it is confounded with office. stanf. praerog . fol. . inquifitors ( inquisitores ) are sheriffs , coroners , super visum corporis , or the like , who have power to enquire in certain cases . stat. of marlbridge , cap. . britton , fol. . and in westm . . enquirors or inquisitors are included under the name of ministri . part. inst . fol. . inrolment ( irrotulatio ) the registring , recording , or entring any lawful act in the rolls of the chancery , exchequer , kings bench , or common pleas , in the hustings of london , or by the clerk of the peace in any county : as a statute or recognizance acknowledged , or a deed of purchase enrolled . anno h. . cap. . see west , par . symb. tit . fines , sect . . insidiatores viarum ( way-layers ) are woods , which by the stat. hen. . cap. . are not to be put in indictments , arraignments , appeals , &c. insimul tenuit , is one species of the writ of partition . see formdon . insinuation ( anno hen. . cap. . ) a creeping into a mans minde or favor , covertly . insinuation of a will , is ( among the civilians ) the first production of it , or the leaving it penes registarium , in order to its probat . inspeximus . letters patent so called , and is the same with exemplification , which begins thus . rex — omnibus — inspeximus irrotulamentum quarund . literarum patent ' &c. it is called inspeximus , because it begins , after the kings title , with this word inspeximus . see pages case , rep. instalment ( anno car. . cap. . ) a settlement , establishment , or sure placing in ; sometimes it is confounded with abatement . institution ( institutio ) is when the bishop says to a clerk , who is presented to a church-living , instituo te rectorem talis ecclesiae , cum cura animarum , & accipe curam tuam & meam . every rectory consists of a spiritualty , and a temporalty ; as to the spiritualty , viz. cura animarum , he is a compleat parson by institution ; but as to the temporalties , as gleab-land , &c. he has no frank-tenant therein , till induction . cokes rep. digbies case . the first beginning of institutions to benefices , was in a national synod held at westminster by john de crema , the popes legate , anno . which see in seldens hist . of tythes , pag. . in super ( anno jac. cap. . ) is used by auditors in their accounts in the exchequer ; when they say so much remains in super such an accoantant , that is , so much is charged upon him , in his account . intakers , were a kind of theeves in redesdale , and the furthest parts of the north of england , mentioned hen. . ca. . so called , because they , dwelling in that liberty , did take in , and receive such booties of cattel and other things , as their complices the outparters brought in to them , from the borders of scotland . see outparters . intendment of law , ( fr. entendement , intellectus , ) the understanding , judgment , intention or true meaning of the law. regularly judges ought to judge according to the common intendment of law. coke on litt. fo . . inter canem & lupum — margeria filia nicholai de okele appellat johannem chose pro raptu & pace regis fracta die martis prox , &c. inter canem & lupum . i. in crepusculo , scilicet anglice twylight , i. inter diem & noctem , &c. inter plac. de trin. edw. . rot. . glouc. — in placito de domo combusta maliciose , hora vespertina , scilicet , inter canem & lupum , venerunt malefactores , &c. plac. cor. apud novum castrum ed. . rot. . intercommoning , is , where the commons of two mannors lie contiguous , and the inhabitants of both have time out of mind depastured their cattel promiscuously in each of them . interdiction , ( interdictio ) has the same signification in the common , as it hath in the canon law , which thus defines it : interdictio est censura ecclesiastica prohibens administrationem divinorum . and so it is used hen. . ca. & . ejusdem , cap. . interdicted of water and fire , were in old time those , who , for some crime were banished ; which judgment , though it was not by express sentence pronounced , yet , by giving order , that no man should receive them into his house , but deny them fire and water , ( the two necessary elements of life ) they were condemned , as it were to a civil death ; and this was called legitimum exilium . livie . interest , ( interesse ) is vulgarly taken for a term or chattel real , and more particularly for a future term ; in which case it is said in pleading , that he is possessed de interesse termini . but ex vi termini , in legal understanding , it extends to estates , rights and titles , that a man hath of , in , to , or out of lands ; for , he is truly said to have an interest in them . coke on litt. fo . . b. interlocutory order , ( ordo interlocutorius ) is that which non definit controversiam , sed aliquid obiter , ad causam pertinens , decernit . as , where an order is made , by motion in chancery , in a sute there depending , for the plaintiff to have an injunction , to quiet his possession , till the hearing of the cause ; this , or any such like order , which is not final , is call'd interlocutory . interpleder . see enterpleder . intestates , ( intestati , ) there are two kinds of intestates ; one that makes no will at all ; another that makes a will and executors , and they refuse ; in which case he dies quasi intestatus . part inst . fol. . intiertie . see entierty . intrusion , ( intrusio , ) is , when the ancestor dies seiz'd of any estate of inheritance , expectant upon an estate for life , and then tenant for life dies , between whose death and the entry of the heir , a stranger does interpose himself and intrude . coke on litt. fo . . to the same effect is bracton , lib. . ca. . intrusio est ubi quis , cui nullum jus competit in re nec scintilla juris , possessionem vacuam ingreditur , &c. see him at large , and fleta , lib . ca. . sect. & . britton , ca. . see abatement , entrusion , and the stat. jac. ca. . intrusione , is a writ that lies against the intruder , regist . fo . . invadiationes , morgages , or pledges . — confirmamus eis omnes alias donationes , venditiones & invadiationes eis rationabiliter factas . mon. angl. . pa. fo . . a. inventarie , ( inventarium , ) is a list or repertory , orderly made , of all dead mens goods and chattels , prized by four credible men or more , which every executor or administrator ought to exhibit to the ordinary , at such time as he shall appoint . west , part . symbol . lib. . sect. . where likewise you may see the form . this inventary proceeds from the civil law ; for , whereas by the ancient law of the romans , the heir was tied to answer all the testators debts , by which means inheritances were prejudicial to many men : justinian , to encourage men the better to take upon them this charitable office , ordain'd , that , if the heir would first make and exhibit a true inventary of all the testators substance coming to his hands , he should be no farther charged then to the value of it . lib. ult . cod. de . jure deliberando . in ventre sa mere , ( fr. ) in the mothers belly ; is a writ mentioned in the register of writs , and in anno car. . ca. . invest , ( from the fr. invester , ) signifies to give possession . investitura proprie dicitur quando hasta vel aliquod corporeum traditur a domino , sayes the feudist , lib. . tit . . we use likewise to admit the tenant , by delivering him a verge or rod into his hands , and ministring him an oath , which is called investing . others define it thus , investitura est alicujus in suum jus introductio , a giving livery of seisin or possession . invoice , ( car. . ca. . ) is a particular of the value , custom , and charges of any goods sent by a merchant in another mans ship , and consign'd to a factor or correspondent in another country . inure , signifies to take effect , or be available ; as the pardon inureth — stamf. praerog . fo . . see enure . jocalia , jewels . — edward the first employ'd one andevar , ad socalia sua impignoranda . claus . edw. . — praeterea confiderantes gratam subventionem quam praefati abbas & monachi ( rading . ) nobis fecerunt de magnis & praeciosis jocalibus ac aliis rebus suis in subsidium expensarum & sumptuum , quos circa praesens passagium nostrum versus partes transmarinas , &c. in mem . scac. de anno ed. . trin. rot. . jocarius , a jester . in a deed of richard abbas de bernayo to henry lovet , sine dat . among the witnesses to it , was willielmo tunc jocario domini abbatis . joclet , ( sax. ) praediolum , agri colendi portiuncula : a little farm or mannor , in some parts of kent called a yoklet , as requiring but a small yoke of oxen to till it . sax. dict . jotson . see jetsen & flotson . joynder , is the coupling or joyning of two in a sute or action against another . fitz. nat. br. fo . . and in many other places , as appears in the index , verbo joynder . joyntenants , ( simul tenentes , or qui conjunctim tenent , ) are those that come to , and hold lands or tenements joyntly by one title pro indiviso , or without partition . littleton , lib. . ca. . and , these joyntenants must joyntly plead , and joyntly be impleaded by others , which property is common between them and coparceners , but joyntenants have a sole quality of survivorship , which coparceners have not . for , if there be two or three joyntenants , and one has issue and dies , he or those joyntenants that survive shall have the whole by survivorship . see coke on litt. fo . . joyning of issue , ( junctio exitus . ) see issue . joynture , ( junctura , ) is a covenant or settlement , whereby the husband , or some other friend in his behalf assureth to his wife , in respect of marriage , lands or tenements for term of her life or otherwise . it is so called , either , because it is granted ratione juncturae in matrimonio ; or because the land in frank-marriage is given joyntly to the husband and wife , and after to the heirs of their bodies , whereby the husband and wife are made joyntenants during the coverture . coke , lib. . butler and bakers case . ioynture is also used as the abstract of ioyntenants . coke , lib. . marq. of winchesters case . journal , ( fr. ) a diary , or day-book . iournals of parliament are no records , but remembrances ; they are not of necessity , nor have been of long continuance . see hob. rep. fo . . journ-choppers , ( anno hen. . ca. . ) were regraters of yarn . whether that we now call yarn was in those dayes called iourn , i cannot say ; but , choppers in these dayes are well known to be changers ; as , to chop and change , is a familiar phrase . see chop-chirch . journy-man , ( from the fr. iournee . i. a day , or days work ) was properly he , that wrought with another by the day ; though now by statute it be extended to those likewise that covenant to work with another in their occupation or trade , by the year . anno eliz. ca. . ire ad largum , to go at large , to escape , to be set at liberty . irregularity , ( irregularitas , ) disorder , going out of rule : in the canon law it is taken for an impediment , which hinders a man from taking holy orders ; as , if he be base-born , notoriously desamed of any notable crime , maimed , or much deformed , or has consented to procure anothers death , with divers other . irrepleviable , or irreplevisable . that may not , or ought not by law to be replevied , or set at large upon sureties . the distress shall remain irrepleviable . anno ed. . ca. . isinglas , ( gluten piscium , ) is a kind of fish-glue , or fish-gum , brought from iseland and those parts , and is used in medicines , and , by some , in the adulteration of wines , in which last use it is prohibited by stat. car. . ca. . issue , ( exitus , ) hath divers applications ; sometime being used for the children begotten between a man and his wife ; sometime for profits growing from amercements or fines ; sometimes for profits of lands or tenements , ( westm . . an. ed. . ca. . ) sometime for that point of matter depending in suite , whereon the parties joyn , and put their cause to the trial of the jury . and , in all these , it has but one signification , which is an effect of a cause preceding ; as children are the effect of the marriage ; the profits growing to the king or lord from the punishment of any mans offence , is the effect of his transgression ; the point referr'd to men is the effect of pleading or process . issue , in this last signification , is either general , or special . general issue seems to be that , whereby it is referr'd to the jury to bring in their verdict , whether the defendant have done any such thing as the plaintiff lays to his charge : for example , if it be an offence against any statute , and the defendant plead not culpable , this being put to the jury , is called the general issue ; see doctor and student , fo . . b. the special issue then must be that , where special matter being alledged by the defendant , for his defence , both parties joyn thereupon , and so grow either to a demurrer , if it be quaestio juris , or to a trial by the jury , if it be quaestio facti . an. hen. . ca. . see the new book of entries , verbo issue , and eliz. ca. . itinerant , ( itinerans , i. that takes a journey , ) those were anciently called iustices itinerant , who were sent with commission into divers counties , to hear such causes specially as were termed pleas of the crown . see iustices in eyre . judaism , ( iudaismus , ) the custom , religion or rites of the iews : this word was often used by way of exception , in old deeds ; as sciant — quod ego rogerus de morice dedi — willielmo harding pro tribus marcis argenti — unum croftum — habend de me & heredibus meis sibi & haeredibus ejus vel ejus assignatis & eorum heredibus cuicunque , quocunque vel quandocunque dictum croftum dare , vendere , legare , invadiare , vel aliquo modo assignare voluerint in quocunque statu fuerint , libere , quiete , integre , bene & in pace , excepta religione & judaismo , &c. sine dat . the stat. de iudaismo was made edw. . at which parliament , the king had a fifteenth granted him pro expulsione iudaeorum . iudaismus , was also anciently used for a morgage . — pro hac autem donatione dederunt mihi dicti abbas & canonici sex marcas sterl . ad acquietandam terram praedictam de judaismo , in quo fuit impignorata per rob. fratrem meum , &c. ex magno rot. pipae , de anno edw. . judgment ( iudicium , quasi juris dictum ) the very voice of law and right , and therefore iudicium semper pro veritate accipitur : the ancient words of iudgment are very significant , consideratum est , &c. because iudgment is ever given by the court upon consideration had of the record before them ; and in every judgment there ought to be three persons actor , reus & iudex . of iudgments , some are final and some not final , &c. see coke on littl. fol. . a. judicium dei , the judgment of god ; so our ancestors called those now probibited tryals of ordael , and its several kindes . si se super defendere non posset judicio dei , scil . aquâ vel ferro , fieret de eo justitia . ll. divi edw. confess . cap. . see spelm. gloss . on this word . judgment or tryal by the holy cross ( long since disused ) see cressy's church-history , fol. . jugum terrae , in domesday , contains half a p o 〈…〉 and. jun 〈…〉 ia ( from juncus ) a soil where rushes grow . coke on littl. fol. . — cum piscariis , turbariis , juncariis , & communibus pasturis , ad messuagium praedictum pertin . pat. edw. . pa. . m. . jura regalia . see regalia . jurats ( iurati , anno & edw. . cap. . ) as the major and iurats of maidstone , rye , winchelsey , tenterdon , &c. are in the nature of aldermen for government of their several corporations ; and the name is taken from the french , where ( among others ) there are major & iurati suessenses , &c. vide choppin . doman . fran. lib. . tit. . sect . . p. . so iersey hath a bailiff , and twelve iurats , or sworn assistants to govern the island . cam. romene● marsh is incorporate of one bailiff , xxiiii iurats , and the commonalty thereof , by charter dat. febr. edw. . see mr. dugdale hist . of imbanking and draining , fol. . b. jury ( iurata , from iurare to swear ) signifies twenty four or twelve men sworn to inquire of the matter of fact , and declare the truth upon such evidence as shall be delivered them , touching the matter in question ; of which iury who may , and who may not be impaneld , see fitz. nat. br. fol. . there are two manner of tryals in england ; one by battel , the other by assise or iury. see smith de repub. angl. lib. . cap. , , . who adds a third , by parliament . the tryal by assise ( be the action civil or criminal , publick of private , personal or real ) is referred for the fact to a iury ; and as they finde it , so passeth the judgment ; which by bracton ( lib. . cap. . ) is called regale beneficium , &c. this iury is not onely used in circuits of justices , but in other courts , and matters of office ; as if the coroner enquire how a subject , found dead , came to his end , he useth an enquest ; the justices of peace in their quarter sessions ; the sheriff in his county and turn ; the bailiff of a hundred ; the steward of a court leet , or court baron , if they enquire of any offence , or decide any cause between party and party , do it by the same manner . so that where it is said , all things are tryable by battel or assise : assise in this place , is taken for a iury , or enquest , empanelled upon any cause in a court where this kinde of tryal is used . this iury , though it pertain to most courts of the common law , yet is it most notorious in the half-yearly courts of the justices itinerants , or of the great assises , and in the quarter sessions , where it is usually called a iury ; and that in civil causes ; whereas in other courts it is oftener termed an enquest , and in the court baron , a iury of the homage . in the general assise , there are usually many iuries , because there are many causes , both civil and criminal , commonly to be tryed , whereof one is called the grand iury , or great enquest , and the rest petit iuries , whereof it seems there should be one for every hundred . lamb. eiren. lib. . cap. . pag. . the grand iury consists ordinarily of twenty four grave and substantial gentlemen , or some of them of the better sort of yeomen , chosen indifferently out of the whole county by the sheriff , to consider of all bills of indictment preferred to the court , which they do either approve , by writing upon them billa vera , or disallow , by writing ignoramus ; such as they approve , or finde , as they term it , if they touch life and death , are farther referred to another iury to be considered of ; because the case is of such importance ; but others of less moment in trespass , or for misdemeanors , are , upon their allowance , without more ado , fined by the bench , except the party traverse the indictment , or challenge it for insufficiency ; or remove the cause to a higher court by certiorari ; in which two former cases it is referred to another iury , and in the later , transmitted to the higher court. lamb. eiren. lib. . cap. . and presently upon the allowance of this bill by the grand enquest , a man is said to be indicted ; such as they disallow , are delivered to the bench , by whom they are forthwith cancelled . the petit jury in criminal causes , consists of twelve men , at least , and being impanelled , do bring in their verdict , either guilty , or not guilty ; whereupon , the prisoner , if he be found guilty , is said to be convict , and accordingly afterward receives his judgment , and condemnation , or otherwise is acquitted . those that pass upon civil causes real , are so many , as can conveniently be had , of the same hundred , where the land or tenement in question lies , or four , at the least : and they , upon due examination of the matter , bring in their verdict , either for the demandant or tenant . of this , see fortescu , cap. , , . according to which , judgment passeth afterwards in the court , where the cause first began ; and the reason hereof is , because these justices of assise are in this case , for the ease of the countrey ; onely to take the verdict of the jury , by vertue of the writ called nisi prius , and so return it to the court , where the cause is depending . see nisi prius , and enquest . juridical days ( dies juridici ) days on which the law is administred , days in court. see dies . juris utrum , is a writ , which lies for the incumbent , whose predecessor hath alienated his lands or tenements ; the divers uses whereof , see in fitz. nat. br. fol. . jurisdiction ( jurisdictio ) is an authority or power , which a man hath to do justice in causes of complaint made before him : of which , there are two kindes ; the one , which a man hath by reason of his fee , and by vertue thereof , does right in all plaints concerning the lands of his fee ; the other is a jurisdiction given by the prince to a bailiff . which division i have in the custumary of normandy , cap. . which is not unapt for the practise of our commonwealth , for by him whom they call a bailiff , we may understand all that have commission from the prince , to give judgment in any cause . see sir edw. cokes pr●●mium to his inst . jus coronae ( the right of the crown ) is part of the law of england , and differs in many things from the general law , concerning the subject . vid. coke on littl. fol. . b. jus curialitatis angliae . see curtesie of england . jus patronatus , is the right of presenting a clerk to a benefice . see the new book of entries , verbo , jure patronatus in quare impedit , fol. . col . . justes ( fr. jouste , i. decursus ) were contentions between martial-men , and persons of honor , with spears on hors-back , by way of exercise . anno hen. . cap. . edictum regis edw. . prohibendo sub forisfacturd omnium quae forisfactae possint , quod non torneant , bordeant , adventuras querant , justus faciant seu ad arma presumant fine licentia regis . pas . edw. . essex . justice ( justiciarius ) signifies him that is deputed by the king to administer justice , and do right by way of judgment : the reason why he is called justice , and not judex , is ; because , in ancient time , the latin word for him was justicia , and not justiciarius , as appears by glanvil , lib. . cap. . and hoveden , fol. . a● secondly , because they have their authority by deputation , as delegates to the king , and not jure magistratus ; and therefore cannot depute others in their stead ; the justice of the forest onely excepted , who hath that liberty especially given him by the statute hen. . cap. . for the chancellor , marshal , admiral , and such like are not called justiciarii , but judices . of these justices we have divers sorts in england , the manner of their creation with other appurtenances read in fortescu , cap. . these in mag. char. cap. . and other statutes are called justicers . cheif justice of the kings bench ( capitalis justicia vel iusticiarius banci regii ) hath the title of lord , whilest he enjoys his office , and is called capitalis iusticiarius , because he is the cheif of the rest . his office is specially to hear , and determine all pleas of the crown , that is , such as concern offences , committed against the crown , dignity , and peace of the king , as treasons , felonies , mayhems , and such like , which you may see in bracton , lib. . tract . . per totum . and in stanf. pleas of the crown . he also , with his assistants , hears all personal actions , incident to his jurisdiction . see sir edw. cokes inst . fol. . who says , the cheif iustice of this court was anciently created by letters patent , but now by writ , in this form . — rex , &c. i. k. militi salutem . sciatis quod constituimus vos justiciarium nostrum capitalem , ad placita coram nobis tenenda , durante bene placito nostro . teste , &c. of the ancient dignity of this cheif iustice , thus . liber niger siscalis , cap. . in scaccario residet , im● & praesidet , primus in regno , capitalis , scilicet , justicia . in the time of king iohn , and others of our ancient kings , it often occurs in charters of priviledges , quod non ponatur respondere , nisi coram nobis vel capitali justicia nostra . the oath of the iustices see in the stat. edw. . stat . . and in origines iuridiciales , a catalogue of all the lord cheif iustices of england . see kings bench. cheif justice of the common pleas , hath also the title of lord , whilest he enjoys his office , and is called dominus iusticiarius communium placitorum , who , with his assistants , did originally , and do yet hear and determine all causes at the common law , that is , all civil causes , as well personal as real , between common persons ; wherefore it was called the court of common pleas , in distinction from the pleas of the crown , or the kings pleas , which are special and appertaining to him onely . this court was appointed to be in a setled place , and not as other courts , to follow or attend the kings court or palace , as appears by the stat. hon. . cap. . of its jurisdiction , see inst . fol. . the iustices oath , see edw. . stat . . justice of the forest ( iusticiarius forestae ) is also a lord by his office , and hath the hearing and determining all offences within the forest , committed against venison or vert ; of these there are two , whereof the one hath jurisdiction over all the foresta on this side trent , the other over all beyond . the cheifest point of their jurisdiction consists in the articles of the kings charter , called charta de foresta , made hen. . see cam. britan. pag. . the court , where this iustice sits , is called the iustice seat of the forest , held once every three years . see manwood , par . . pag. . & . he is also called iustice in eyre of the forest . this is the onely iustice that may appoint a deputy by stat. hen. . cap. . justice of assise ( iusticiarii ad capiendas assisas ) are such as were wont by special commission to be sent ( as occasion was offered ) into this or that county to take assises , for the ease of the people . and it seemes the iustices of the common pleas had no power to take assises , until the statute of rich. . cap. . for by that , they are enabled thereto , and to deliver goals . and the iustices of the kings bench have by that statute such power affirmed unto them , as they had one hundred years before . of later years it is come to pass , that these commissions , ad capiendas assisas , are executed in the lent ; and long vacation , when the iustices and lawyers are most at leasure to attend them . hence the matters , accustomed to be heard by more general commission of iustices in eyre , are heard all at one time , with the assises , which was not so of old , as appears by bracton , lib. . cap. . num . . yet no iustice of either bench , nor any other , may be iustice of assise in his own countrey . anno rich. . cap. . and hen. . cap. . and these , who are in one word called iustices of assise , and twice every year go the circuit by two and two through all england , have one commission to take assises , another to deliver goals , another of oyer and terminer , &c. see assise and cromp. iuris . fol. . that iustices of assise , and iustices in eyre , did anciently differ , appears anno edw. . cap. . and that iustices of assise , and iustices of goal delivery , were divers , is evident by anno ed. . cap. . the oath taken by iustices of assise , is all one with that taken by the iustices of the kings bench. old abridgment of statutes , titulo , sacramentum iusticiariorum . justices of oyer and terminer ( justiciarii ad audiendum & terminandum ) were justices , deputed upon some special or extraordinary occasion , to hear and determine some particular causes . fitz. ( in his nat. br. ) saith , the commission of oyer and terminer is directed to certain persons , upon any insurrection , heinous demeanor or trespass committed . and , because the occasion of granting this commission should be maturely weighed , it is provided by the statute edw. . cap. . that no such commission ought to be granted , but that they shall be dispatched before the iustices of the one bench , or the other , or iustices errants , except for horrible trespasses , and that by special favor of the king. the form of this commission , see in fitz. nat. br. fol. . justices in eyre ( justiciarii itinerantes , alias errantes , alias perlustrantes ) are so termed of the old french word erre , i. iter ; as a grand erre , i. magnis itineribus , proverbially spoken . these , in ancient time , were sent with commission into divers counties , to hear such causes specially , as were termed the pleas of the crown ; and that for the ease of the subject , who must else have been hurried to the courts at westminster , according to their several jurisdictions . ; if the cause were too high for the county court. these justices ( according to gwin , in his preface to his reading ) were anciently sent but once in seven years , with whom horn ( in his mirror of justices ) seemes to agree , lib. . cap. queux point estre actors , &c. and lib. . cap. de justices in eyre , where he also declares what belonged to their office ; but that they were sent oftner , see orig. iuridiciales . they were instituted by henry the second . cam. brit. pag. . and were much like in some respect to the iustices of assise at this day ; although for authority and manner of proceeding , far different . coke on littl. fol. . b. justices of goal delivery ( iusticiarii ad goalas deliberanda● ) are such as are sent with commission , to hear and determine all causes appertaining to those , who for any offence , are cast into the goal ; part of whose authority is to punish such , as let to mainprise those prisoners , who by law are not bailable , fitz. nat. br. fol. . these probably , in ancient time , were sent into the counties upon this several occasion : but afterwards iustices of assise had this in commission also . anno edw. . cap. . their oath is all one with other of the kings iustices of either bench. justice of the hundred ( iusticiarius hundredi ) erat ipse hundredi dominus , qui & centurio & centenarius hundredique aldermannus appellatus est . praeerat omnibus hundredi friborgis , cognovitque de causis majusculis , quae in eisdem finiri non potuerunt . spelm. justicements ( from iustitia ) all things belonging to justice . coke on westm . . fol. . justices of laborers , were iustices appointed , in former times , to redress the frowardness of laboring men , who would either be idle or have unreasonable wages . anno edw. . cap. . — ejusdem ; cap. . and ejusdem , cap. . justices of nisi prius , are now all one with iustices of assises : for it is a common adjournment of a cause in the common pleas , to put it off to such a day , nisi prius iusticiarii venerint ad eas partes ad capiendas assisas . upon which clause of adjournment , they are called iustices of nisi prius , as well as iustices of assises , by reason of the writ or action they have to deal in . their commission you may see in cromp. iuris . fol. . yet he makes this difference between them , because iustices of assise have power to give judgment in a cause , and iustices of nisi prius onely to take the verdict . but in the nature of both their functions , this seems to be the greatest difference , that iustices of nisi prius have jurisdiction in causes personal , as well as real ; whereas iustices of assise , in strict acception , deal onely in the possessory writs , called assises . cowel . justices of trail-baston , were justices appointed by king edward the first , anno . upon occasion of great disorders in the realm , during his absence in the scotish and french wars : they were so called , according to holinshed , of trailing or drawing the staff of justice , or for their summary proceeding , according to coke , rep. fol. . where it is said they were in a manner iustices in eyre , and their authority founded on the statute of ragman . what their office was , take from a coetaneous author . — circa haec tempora processit in publicum novae inquisitionis breve , quod anglicè dicitur trail-baston , contra intrusores , conductitios hominum vapulatores , conductitios seisinae captores , pacis infractores , raptores , incendiarios , murduratores , pugnatores . multi hoc perempti , multi redempti , multi noxii , pauci innoxii sunt inventi . adeo quidem rigidè processit huju●●●ertionis justitia , quod pater proprio filio non parceret , &c. dira multa . hist . roffens , fol. . de anno . by means of which inquisitions , many were punished by death , many by ransom , many fled the realm , which was there●y quieted , and the king gained great riches towards the support of his wars . see matth. westm . in anno . we finde also a commission of trail-baston coram rogero de grey & sociis suis justic . apud st. albanum . anno regni regis edw. tertii post conquestum . see spelm. gloss . verbo , trail-baston . justices of the pavilion ( justiciarii pavilonis ) are certain judges of a pyepowder court , of a most transcendent jurisdiction , anciently authorised by the bishop of winchester at a fair held on s. giles hill near that city , by vertue of letters patent granted by edward the fourth . — episcopos wynton & successores suos , a tempore quo , &c. justiciarios suos , qui vocantur justiciarii pavilonis , cognitiones placitorum & aliorum negotiorum eadem feri● durante , nec non claves partarum & custodiam praedictae civitatis nostrae wynton . pro certo tempore feriae illius , & nonnullas alias libertates , immunitates & consuetudines habuisse , &c. see the patent at large in prynnes animad . on inst . fol. . justices of the peace ( justiciarii ad pacem ) are those , who are appointed by the kings commission to attend the peace of the county where they dwell ; of whom some , for special respect , are made of the quorum , because some business of importance may not be dispatched without the presence or assent of them , or one of them . see quorum . the office and power of these , is various and grounded upon several statutes , too long to recite . they were called guardians of the peace , till the thirty sixth year of edward the third , cap. . where they are called justices . lamb. eiren. lib. . cap. . pag. . see shepherds sure guide for i. of peace . justices of peace , within liberties ( justiciarii ad pacem infra libertates ) are such in cities , and other corporate towns , as those others of the counties ; and their authority or power is all one within their several precincts . anno hen. . cap. . justiciar ( fr. justicier ) a justice or justicer . the lord bermingham , justiciar of ireland . baker , fol. . justicies , is a writ , directed to the sheriff , for the dispatch of justice , in some special cases in his county court , of which , by his ordinary power he cannot hold plea there . fitz. nat. br. fol. . kitchin , fol. . says , that by this writ the sheriff may hold plea of a great sum , whereas of his ordinary authority he cannot hold pleas , but of sums under forty shillings , with whom crompton agrees , fol. . it is called a justicies , because it is a commission to the sheriff ad justiciandum aliquem , to do a man justice or right , and requires no return or certificate of what he hath done . bracton , lib. . tract . . cap. . num . . makes mention of a iusticies to the sheriff of london , in a case of dower . see the new book of entries , verbo , iusticies . justification ( iustificatio ) is a maintaining or shewing a good reason in court , why one did such a thing , which he is called to answer . as to justifie in a cause of replevin . broke , tit . replevin . justificators ( iustificatores ) will. rex angliae h. camerario & justificatoribus suis , omnibus suis fidelibus norf. salutem . inquirite per comitatum quis justiùs hujusmodi forisfacturam haberet tempore patris mei , five abbas ramesiae five antecessor w. de albenio . et si comitatus concordaverit quod abbas rectius praedictam forisfacturam debet habere , tunc praecipio ut c. solidi quos radul . passel . implacitavit , sine mora abbati reddantur . t. episcopo dunelmensi . sir henry spelman leaves it thus without explication . iustificators seem to signifie compurgators , or those that by oath justifie the innocency , report or oath of another , as in the case of waging law ; also jury-men ; because they justifie that party , on whose behalf they give their verdict . k. kalender-moneth ( mentioned in the stat. car. . cap. . ) consists of thirty or thirty one days , according to the kalender . a twelve-moneth in the singular number , includes all the year ; but twelve-moneths shall be computed according to twenty eight days to every moneth . see coke , lib. . fol. . b. catesbies case , and see computation . kantref , ( brit. ) in wales it signifies a hundred villages — le premer conquereur des treis kantrefs de la tere de breckenoch , estoit bernard de nefmarche , norman . mon. angl. . pa. fol. . b. see cantred . karle ( sax. ) a man ; and sometimes a servant or a clown . hence the saxons called a seaman , a buscarle , and a domestick servant , huscarle . this word is often found in domesday , seldens mare clausum , and other ancient records ; from hence , by corruption , comes our modern word churle . karrata faeni ( mon. angl. . par . fol. . b. ) a cart load of hay . see carecta . kay ( kaia & caya , sax. caeg ) area in littore onerandarum atque exonerandarum navium causa , e compactis tabulis trabibusque ( clavium instar ) firmata . a wharf to land , or ship goods or wares at . the verb caiare in old writers , signifies ( according to scaliger ) to keep in , or restrain ; and so is the earth or ground where kays are made , with planks and posts . kayage ( kaiagium ) portorium quod kaiae nomine , exigit telonarius . the money or toll paid for loading or unloading wares at a kay or wharf . rot. pat. edw. . m. . and edw. . m . kedel ( anno edw. . cap. . ) see kiddle . kéeper of the great seal ( custos magni sigilli ) is a lord by his office , stiled lord keeper of the great seal of england , and is of the kings privy council , through whose hands pass all charters , commissions , and grants of the king , under the great seal . without which seal , many of those grants and commissions , as to divers particulars , are of no force in law ; the kings great seal being as the publick faith of the kingdom , in the high esteem and reputation , justly belonging and attributed thereunto . this lord keeper by the statute eliz. cap. . hath the same place , authority , preheminence , jurisdiction , execution of laws , and all other commodities and advantages as the lord chancellor of england hath . both these great officers cannot properly be at the same time , since the said statute , but before they might . yet sir francis bacon was made lord keeper , martii , . the lord chancellor egerton then living , but died the next day . he is made lord keeper of the great seal , per traditionem magni sigilli sibi per dominum regem , and by taking his oath . inst . fol. . kéepers of the liberties of england , by authority of parliament . see custodes libertatis . kéeper of the privy seal ( custos privati sigilli ) is a lord by his office , through whose hands pass all charters signed by the king , before they come to the great seal , and some things which do not pass the great seal at all . he is also of the kings privy council , and was anciently called clerk of the privy seal . anno rich. . cap. . gardien del privy seal . in rot. parl. hen. . num . . and lord privy seal . anno hen. . cap. . kéeper of the touch ( anno hen. . cap. . ) seems to be that officer in the kings mint , which at this day is called master of the assay . see mint . kéeper of the forest , ( custos forestae ) is also called cheif warden of the forest , and hath the principal government of all things , and the check of all officers , thereto belonging : and the lord cheif justice in eyre of the forest , when it pleaseth him to keep his iustice seat , sends out his general summons to him forty days before , to warn all under officers to appear before him , at a day assigned in the summons . manw. par . . p. , &c. kennets , a sort of course welsh cloth , mentioned anno hen. . cap. . kernes , idle persons , vagabonds . — nec non de illis qui dicuntur homines ociosi , & malefactoribus , qui etiam kernys dicuntur . ord. hibern . edw. . m. , . kernellatus . — et dux ( sc . lanc. ) dicit , quod ipse clamat pro se & haeredibus suis habere castrum suum de halton , kernellatum . pl. de quo warr. apud cestriam , edw. . fortified or embattelled . keyles or kéeles ( cyuli or ciules ) a kinde of long boats of great antiquity , mentioned anno hen. . cap. . longae naves quibus britanniam primò ingressi sunt saxones . spel. kidder ( anno eliz. cap. . ) — every person being a common badger , kidder , lader , or carrier . — says the statute ; whereby it seems to signifie one , that badges or carries corn , dead victual , or other merchandise up and down to sell ; called also kyddiers , anno eliz. cap. . kiddle , kidel , or kedel ( kidellus ) a dam , or open wear in a river , with a loop or narrow cut in it , accommodated for the laying of weels , or other engins to catch fish . part. of cokes instit . angustias , machinas sive ingenia in fluminibus posita ad salmones , aliosque pisces intercipiendos . some fishermen corruptly call them kettles . the word is ancient , for in magna charta , cap. . we read thus — omnes kidelli deponantur de caetero penitus per thamesiam & medeweyam & per totam angliam , nisi per costeram maris . and in a charter made by king iohn , power was granted to the city of london , de kidellis amovendis per thamesiam & medeweyam . anno hen. . cap. . it was accorded ( inter alia ) that a survey should be made of the wears , mills , stanks , stakes , and kidels in the great rivers of england . inq. capt . apud derb. nov. eliz. post mortem tho. fyndern , &c. — et fuit s●isitus de uno kidello vocat . a were , ac de libera piscaria in potlok . esc . bundello . . kilketh , was an ancient servile kind of payment ; for , in an old manuscript i find kilketh pro qualibet husbandrea denar . king of heralds , ( rex heraldorum , ) is a chief officer at armes that hath the preheminence of the society ; among the romans he was called pater patratus . see herald . king of the minstrels , at tutbury in com. staff. his power and priviledge appears in the following charter . johan par le grace de dieu , roy de castile & de leon duke de lancastre a touts ceux , que cestes nos letres verront ou orront saluz . saches nous avoir ordonez constitut & assignez nostre bien ame le roy des ministraulx deins nostre honeur de tuttebury quore est , ou qui pur le temps serra , pur prendre & arrester touts les ministralx deins meisme nostre honour & franchise ; queux refusont de faire lour services & ministralcie as eux appurtenants , a faire de ancient temps a tuttebury suisdit annuelment les jours del assumption de nostre dame . donants & grantants au dit roy des ministralx pur le temps estant pl●in poier & mandement de les fair resonablement justifier & constrener de fair lour services & ministralcies en maner come appeint , & come illonques ad este use & de ancient temps accustome . en testimoigniance de quel chose nous avons fait faire cestes nos letres patents , don souz nostre privie seal a nostre castel de tuttebury le xxii jour de august le an de regne nostre tresdulces le roy richard second , quart . confirmed by hen. . . febr. regni . item est ibidem quaedam consuetudo quod histriones , venientes ad matutinds in festo assumptionis beatae mariae , habebunt unum taurum de priore de tuttebury , si ipsum capere possunt citra aquam done propinquiorem tuttebury , vel prior dabit eis xl d. pro qua quidem consuetudine dabuntur domino ad dictum festum annuatim xx d. mon. angl. par. fo . . b. see minstrels . kings-bench , ( bancus regius , from the sax. banca , a bench or form ) is the court or judgment seat , where the king of england was sometimes wont to sit in his own person , and was therefore moveable with the court or kings houshold , and called curia domini regis , or aula regis ; wherein , and in the exchequer ( which were the only courts of the king till henry the thirds dayes ) were handled all matters of justice , as well civil as criminal . this court was wont , in ancient times , to be especially exercised in all criminal matters and pleas of the crown , leaving private contracts and civil actions to the common-pleas and other courts . glanvil , lib. . ca. , , &c. smith de repub. angl. lib. . ca. . see cokes inst . fo . . kings silver , is that money which is due to the king in the court of common-pleas , pro licentia concordandi , in respect of a licence there granted to any man for levying a fine , coke vol. . fol . a & . b. kings swanheard , ( magister deductus cignorum , ) pat. r. . pars . m. . — radulphum scot , custodem cignorem nostrorum , five per alium quemcunque qui pro tempore custos cignorum nostrorum praedictorum fuerit . no fowl can be a stray but a swan . inst . fo . . kintal , ( span. quintal , ) is a kind of weight , most commonly of one hundred pounds , or something under or over , according to the divers uses of sundry nations ; plowden , fol. . in the case of renynger and fogassa , mentions kintals of woad . kirk●ys-quest , is an ancient record remaining with the remembrancer of the exchequer , the meaning and etmology whereof will appear by what follows . md. quod anno dom. , anno regni regis edwardi filii regis henrici quinto , misit idem rex per totam angliam ballivos inquirere sub juramento & in secreto de universis terris angliae per johannem de kirkby thesaurarium suum , quisquis teneret & cujus feodi , & quantum , & cujus regis tempore feoffati essent . ex registro glaston . caenobii penes rad. sheldon ar. fo . . b. knave , ( sax. cnawa , ) is used for a man-servant , anno edw. . stat. . ca. . it did anciently signifie a child ; also a minister or servant . matth. . . puer meus jacet in domo paralyticus , was , in the saxon translation , turned myn knawa . — hence seyld knawa , pro , armigero , quasi scuti famulus seu minister ; he that bore the weapon or shield of his superior . it was sometimes of old used as a titular addition . — johannes filius willielmi couper de denby knave , ad satisfaciendum regi de omni eo quod ad regem pertinet , occasione cujusdam utlagariae in ipsum in placito transgressionis ad sectam regis promulgata . original . de anno hen. . derby . knight , ( sax cnyt . miles , chivalier , or eques auratus , from his gilt spurs usually worn , and thence called anciently knights of the spur. signifies one that bears arms , who , for his vertue , and marshal prowess , is by the king , or one having his authority , exalted above the rank of gentlemen to a higher account or step of dignity . the manner of making them cam. in his britan. thus shortly expresseth . nostris vero temporibus , qui equestrem dignitatem suscipit , flexis genibus leviter in humero percutitur , princeps his verbis gallice affatur ; sus vel sois chevalier au nom de dieu . i. surge aut fis eques in nomine dei. this is meant of knight-bachelers , which is the lowest but most ancient degree of knighthood with us . by the stat. edw. . ca. . all gentlemen having a full knights fee , and holding their land by knights service , might be compelled by distress to procure himself to be made knight , when he came to mans estate . but , by the statute car. . ca. . it is ordained , that no man shall be compelled to take the order of knighthood , &c. the priviledge belonging to a knight see in ferns glory of generosity , p. . of knights there are two sorts , one spiritual , so called by divine , in regard of their spiritual warfare ; the other temporal , cassanaeus de gloria mundi , part . considerat . . see seldons titles of honor , fo . . knights of the garter , ( equites garterii , or periscelidis , ) arc an order of knights , created by edward the third , after he had obtained many notable victories , who , for furnishing this honorable order , made choice in his own realm , and all christendom , of the most excellent and renowned persons for vertue and honour ; himself and his successors , kings of england , were ordained to be the soveraigns , and the rest fellowes and brethren of this order . smith de repub. angl. lib. . ca. . the officers belonging to it , are , the prelate of the garter , ( which is alwayes the bishop of winchester : ) the chancelor of the garter ; the register , who is alwayes dean of windsor ; the principal king at armes called garter , whose chief function is to manage their solemnities at their feasts and installations ; lastly , the usher of the garter , being the usher of the black rod. this most honourable society is a colledge or corporation , having a great seal belonging to it . see garter . knights baneret . see baneret . john coupeland , ( for his valiant service against the scots ) had the honour of baneret conferred on him and his heirs for ever , by patent , edw. . part . m. . knights of the bath , see the antiquity and ceremony of their creation in mr. dugdales description of worcestershire , fo . , . they are so called from their bathing the night before their creation ; their place is before knights batchelors , and after baronets . knights of st. john of hierusalem , ( milites sancti johannis hierosol●mitani , ) had beginning about the year . and denomination from john the charitable patriarch of alexandria , though vowed to st. john baptist their patron . they had their primary foundation and chief aboad first in hierusalem , and then in the isle of rhodes , until they were expelled thence by the turk , anno . since which time their chief seat is in the isle of malta , where they have done great exploits against the infidels , especially in the year , and are now called knights of malta . they had one general prior , who had the government of the whole order within england and scotland . reg. of writs , fol. . b. and was the first prior of england , and sate in the lords house of parliament . of these knights mention is made in the stat. hen. . ca. . & ejusdem , ca. . but , anno hen. . ca. . they in england and ireland , being found overmuch to adhere to the pope against the king , were suppressed , and their lands and goods referred by parliament to the kings disposition . see hospitalers . knights of malta . see knights of st. iohn . — knights of rhodes . ( anno hen. . ca. . ) see knights of st. iohn . — knights of the temple . see templers . knights of the chamber , ( milites camerae , ) mention'd in inst . fo . . and in rot. pat. ed. . par . . m. : seem to be such knights batchelers , as are made in time of peace , because knighted commonly in the kings chamber , not in the field , as in time of war. knights of the shire , ( milites comitatus ) otherwise called knights of parliament , are two knights , or gentlemen of worth , chosen upon the kings writ , in pleno comitatu , by the freeholders of every county that can dispend s. per ann . anno hen. . ca. . and hen. . ca. . who are in parliament to consult in behalf of the commons of england , touching the publick affairs of the realm . these , when every man that had a knights fee , was customarily constrained to be a knight , were of necessity to be milites gladio cincti , for so runs the writ at this day . but now custom admits esquires to be chosen to this office. — quod milites comitat. pro parliamento extunc eligend . sint milites notabiles de eisdem com. pro quibus sic eligentur , seu aliter notabiles armigeri , homines generosi de nativitate de eisdem com. qui sint habiles existere milites , & quod nullus homo sit talis miles , qui in gradu valetti & inferiori existit , prout in statuto continetur , viz. h. . in breve de sum. ad parl. claus . hen . in dorso . m. . for the choice of these knights see the statutes hen. . ca. . hen. . ca. . with others . their expences are to be born by the county , hen. . ca. . though now a dayes that is , for the most part , not required . knight marshal , ( mareschallus hospitii regis , ) is an officer of the kings house , having jurisdiction and cognizance of any transgression within the kings house , and verge of it ; as also of contracts made within the same house , whereto one of the house is a party . reg. of writs , fo . . a. and b. and spelmans glossar . in voce marescallus . knight-service , ( servitium militare ) was a tenure , whereby several lands in this nation were held of the king , which drew after it homage and service in warr , escuage , ward , marriage , &c. but is taken away by stat. car. . ca. . in domesday book some land holden by knights service is called tainland , and land holden by soccage , reveland , fo . . a. knights fee , ( feodum militare ) is so much inheritance , as is sufficient yearly to maintain a knight with convenient revenue ; which in henry the thirds dayes was l. cam. brittan . pa. . but , sir thomas smith , in his repub. angl. lib. . ca. . rates it at l. and , by the stat. for knights , ed. . ca. . such as had l. per ann. in fee or for life , might be compelled to be knights ; which stat. is repealed by car. . ca. . stow ; in his annals , pa. , says , there were found in england at the time of the conquerour knights fees , according to others ; whereof the religious houses , before their suppression , were possessed of . — unde octo carucatae terrae faciunt feodum unius militis . mon. angl. p. fo . . a. of this you may read more in seldens titles of honor , fo . . and bracton , lib. . tract . . ca. . see coke on litt. fo . . a. a knights fee contained plow-lands . part inst . fo . . or acres . knighten-gyld , was a gyld in london consisting of knights , which king edgar founded , giving them a portion of void ground lying without the walls of the city , now called portsoken-ward . stowes annals , pa. . this , in mon. angl. . p. fo . . a. is written cnittenegild . kyddiers , ( anno eliz. ca. . ) see kidder . kylyw — et sint quieti de pastu & kylyw , & omnibus aliis exactionibus , quas forestarii & alii balivi solent exigere . mon. angl. par. fo . . b. perhaps it might signifie some kind of pottage ; for kele , in the north , is still used for pottage . l. laborariis , is a writ that lies against such , as having not whereof to live , do refuse to serve : or against him that refuseth to serve in summer , where he served in winter . reg. of writs , fo . . b. laches , ( fr. lache , i. frigidus , ignavus , ) signifies slackness , or negligence . as no laches shall be adjudged in the heir within age . litt. fo . . and old. nat. br. fo . . where a man ought to make , or do a thing , and he makes or does it not ; i , of his laches cannot have an assise , but must take an action on the case . see coke on litt. fo . . and . b. lafordswick , ( sax. hlaford , dominus & swic , proditio , ) infidelitas erga dominum , a betraying ones lord or master . in the lawes of hen. . ca. . quaedam placita emendari ( i. quaedam crimina expiari ) non possunt ; husbrech , bernet , openthefe , eberemorth , & lafordswick . which word is also found in canutus laws , ca. . and in some authors corruptly written labordfith . laga , ( sax. lag . ) law. lagam regis edwardi vobis reddo , cum illis emendationibus , quibus pater meus eam emendavit , says magna charta . hence seaxenlage , mercenlage , danelage , &c. lageman , or lahman , ( lagamannus ) homo legalis seu legitimus ; such as we call now good men of the jury . i find the word in domesday , and in the lawes of edward the confessor , ca. . thus — postea inquisisset justitia per lagamannos , & per meliores homines de burgo , &c. lagen , ( lagena , ) fleta , lib. . ca. , . in ancient time it was a measure of six sextarii . hence perhaps our flagen . donatio insuper de sex lagenis olei annuatim . carta ed. . m. . n. . see minstrel . lagon , ( from the sax. legan , & liggan , i. jacere ) is that which lies in the bottom of the sea. see flotson . lahs●it , lags●ite , laghs●ite , ( sax. lag , lex . & flite . ruptio ) the breaking or transgressing the law ; and sometimes the punishment for breaking a law. — si quis dei rectitudines per vim teneat , solvat lahs●ite cum dacis , plenam wytam cum anglis . leg. hen. . ca. . lairwite , lecherwite , & legergeldum , ( a sax. lagan , seu laegan , concumbere & site , mulcta , ) a fine , or custom of punishing offenders in adultery and fornication ; which priviledge did anciently belong to the lords of some mannors , in reference to their villains and tenants : which fleta ( lib. . ca. . ) seems to infer . see inst . fo . . lammas-day , ( anno hen. . ca. . ) is the first of august , and so called quasi lamb-mass : on which day the tenants that held lands of the cathedral-church of york , ( which is dedicated to st. peter ad vincula , ) were bound by their tenure to bring a live lamb into the church at high-mass on that day . see gule of august . landa , a laren , or open field , without wood . robertus comes legrecestriae radulpho pincernae & omnibus baronibus & fidelibus suis salutem . sciatis me dedisse servo dei malgero monacho in eleemosina parvam landam quae est inter lunbreodam & coptieleiam ad mansiones & oratorium ibidem faciend . testibus . &c. sine dat . landboc , ( a sax. land , i. terra & boc , liber ) a charter or deed , whereby lands or tenements are held or given . — ut praefata abbatissa praenominatam terram , scil . centum manentium cum libris , quos angli dicunt landboc — in perpetuam haereditatem traderet . concil . synodale apud clovesho , anno dom. . sic anglo-saxones chartas & instrumenta nuncuparunt , praediorum cessiones , jura & firmitates continentia . spel. landegandman , was one of the inferior tenants of a mannor . custumariorum genus seu inferiorum tenentium manerii , says the learned spelman , who adds — occurrit vox in customar . de hecham . landcheap , ( sax. land-cear , from cearan , to buy and sell ) a certain ancient customary fine , paid either in mony or cattel , at every alienation of land lying within some mannor , or within the liberty of some borough : as at maldon in essex , there is yet a custom claim'd by the same name , viz. that for certain houses and lands sold within that borough , xiii d. in every mark of the putchase-money shall be paid to the town : which custom of landcheap is claimed by a grant ( inter al. ) made to that town by the bishop of london , anno hen. . the word is also found in spel. de concil . vol. . fo . . somner in his sax. dict. says , landceap , fortasse precium fundi pacto datum ●el debitum . landgable , ( sax. land-gafel ) terrae census vel redditus , a tax , or rent issuing out of land. domesday , census praedialis vel tributum quod a praediis colligitur . — id est pro unoquoque domo unum denarium . spel. landimers , ( agrimensores , ) measurers of land , anciently so called . landimera autem est terrae limes vel meta . from the sax. gemaere . i. terminus . landman ( sax. landesman , terricola ) the terre-tenant . land-tenant , is he that actually possesses the land , or hath it in his manual occupation . anno edw. . stat . . cap. . see terre-tenant . langemanni . — item in ipsa civitate erant langemanni , i. habentes socam & sacam . domesday , tit . lincolnscire . lanis de cresce●tia walliae traducendis absque custuma , &c. is a writ that lies to the customer of a port , to permit one to pass over wool , without paying custom , because he hath paid it in wales before . reg. of writs , fol. . lapse ( lapsus ) is a slip or omission of a patron , to present a clerk to a benefice within six moneths , after it becomes void ; in which case , we say the benefice is in lapse or lapsed . anno eliz. cap. . and this lapse is incurred , as well where the patron is ignorant of the avoidance , as privy ; except onely upon the resignation of the former incumbent , or deprivation upon any cause comprehended in the same statute : in which cases the bishop ought to give notice to the patron . larceny ( fr. larrecin , lat. latrocinium ) is a theft of personal goods or chattels in the owners absence ; and in respect of the thing stoln , it is either great or small . great larceny is when the things stoln , though severally , exceed the value of xii d. petit larceny , is when the goods stoln exceed not the value of xii d. of this see more in stamf. pl. cor. lib. . cap. , , . inter minuta autem furta ( says spelman ) quae forenses vocant petie larcenys , olim habebantur equi & bovis subtractio , ut perspicuum , est ex assisis hen. . clarendoniae editis , ubi sic legitur . haec assisa attenebit — in murdro & proditions & iniqua combustione & in omnibus praedictis , nisi in minutis furtis & roberiis , quae factae fuerunt tempore guerrae , sicut de equis & bobus & minoribus rebus . larding-mony . in the mannor of bradford in com. wilts , the tenants pay to the marquess of winchester , their land-lord , a small yearly rent by this name : which , i conceive to be for liberty to feed their hogs , with the mast of the lords woods ; the fat of a hog being called lard . larons ( fr. ) theeves . in the statute for view of frank-pledge , made edw. . the fourteenth article to be given in charge at leets is . of pety , larons , as of géese , hens , or sheafs of corn. lashlite . si quis decimam contra teneat , reddat lasblite cum dacis , witam cum anglis . it denoted the danish common for feiture , which was twelve ores , every ore valuing about xvi d. sterling . seldens hist . of tythes , pag. . last ( sax. ) lest ( fr. ) signifies a burden in general , and particularly a certain weight or measure . as a last of pitch , tar , or ashes , contains fourteen barrels . hen. . cap. . a last of hides , or skins , twelve dozen . iac. cap. . a last of cod-fish , twelve barrels , car. . cap. . a last of herring , contains twenty cades , or ten thousand ; every thousand , ten hundred , and every hundred sixscore . anno hen. . stat. . cap. . a last of corn , or rapeseed , is ten quarters . a last of wool , is twelve sacks . a last of leather , is twenty dickers , and every dicker ten skins . of unpacked herrings , eighteen barrels make a last . a last of osmonds is four thousand weight . sed cum discederent ( mercatores ) denarius de uno quoque lesth habebant rex & comes . sc. cestriae . ll. edw. conf. apud selden , tit . hon. sol . . last also , in the marshes of east kent , signifies a court held by twenty four jurats , and summoned by the two bailiffs thereof , wherein they make orders , lay and levy taxes , impose penalties , &c. for preservation of the said marshes . see the hist . of imbanking and draining , fol. . last heir ( ultimus haeres ) is he to whom lands come by escheat for want of lawful heirs , that is the lord of whom they are held , in many cases , but the king in others . quippe rex omnium haeredum ultimus est , uti occanus omnium fluviorum receptaculum . bracton , lib. . cap. . lastage , lestage , and lesting ( lastagium , from the sax. last , i onus ) a custom exacted in some fairs and markets to carry things where one will ( according to rastal . ) but anno rich. . cap. . it is taken for the ballance of a ship. in a charter of henry the third , to the monastery of semplingham , thus — et sint quieti de theolonio , & pontagio , & passagio , & pedagio , & lestagio , & stallagio . where it is to be understood in the former signification . omnes homines london sint quieti & liberi & omnes res corum per totam angliam , & per portus maris , de theolonio , & passagio , & lastagio , & ab omnibus aliis consuetudinibus . diploma hen. . de libertatibus london . lastage ( says another author ) is properly that custom which is paid for wares sold by the last , as herrings , pitch , &c. lathe or leth ( laestum , leda ) sax. laethe ) is a great part of a county , sometimes containing three or more hundreds or wapentakes ; as it is used in kent and sussex . suoque olim subaudiens magistratui quem ▪ ledgrevium appellabant . — et quod anglice vocabant vol hundreda , isti vocabant thrihinga . in quibusdam verò provinciis , anglice vocabant laeth , quod isti dicunt trihinge . quod autem in trihinge definiri non poterat , ferebatur in seyram , i. in curiam comitatus : ll. edw. conf. cap. . — et sint quieti de sectis comitatuum , leth , hundred . & auxiliis vicecomitum . pat. hen. . par . . m. . latimer , seems to be used by sir edw. coke for an interpreter . part. inst . fol. . vox autem unde veniat , non liquet . latitat , is the name of a writ whereby all men in personal actions are called originally to the kings bench. fitz. nat. br. fol. . which hath this name , upon a supposition , commonly untrue , that the defendant doth lurk and lie hid : for latitare est se maliciose occultare animo fraudandi creditores . the true original of this writ , is this : in ancient time whilest the kings bench was moveable , the custom was , when any man was to be sued , to send forth a writ , to the sheriff of the county of middlesex , where the court was resident , called a bill of middlesex to take him ; whereupon the sheriff returned non est inventùs in baliva nostra , &c. then was there a second writ sued forth , that had these words , — cum testatum est quod latitat , &c. and thereby the sheriff willed to attach him in any other place , where he might be found : and when the tribunal of the kings bench came to be setled at westminster , the former course of writ was kept for a long time , first sending to the sheriff of middlesex , to summon the party ; and if he could not be found there , then to apprehend him wheresoever : but afterwards , by the contrivance of clerks , and upon a pretence of expedition of justice , it was at last devised to put both these writs into one , and so to attach the party complained of , upon a supposal or fiction , that he was not within the county of middlesex , but lurking elswhere ; and that therefore he was to be apprehended in any place else , where he was presumed to lie hid , by a writ directed to the sheriff of the county where he is suspected to be . launcegays ( anno rich. . cap. . ) a kinde of offensive weapons now disused , and prohibited by the said statute . law ( lex ) from the saxon lag or laugh ) the law of england is divided into three parts : the common law , which is the most ancient and general law of the realm ; statutes or acts of parliament ; and thirdly , particular customs , i say , particular ; for if it be the general custom of the realm , it is part of the common law. coke on littl. fol. . b. bracton defines it to be sanctio justa jubens honesta & prohibens contraria . and the divine schoolman says , lex humana est quoddam dictamen rationis , quo diriguntur humani actus . see merchenlage . law hath also a special signification , wherein it is taken for that which is lawful with us , and not elswhere : as tenant by the curtesie of england . anno . edw. . cap. . to wage law ( vadiare legem ) and to make , or do law ( facere legem . ) bracton , lib. . tract . . cap. . when an action of debt is brought against one , upon some secret agreement or contract , as in an action of detinue for goods , money , or chattels , lent or left with the defendant , the defendant may wage his law , if he will , that is , swear , and certain persons with him , that he detains not the goods , or ows nothing to the plaintiff , in manner and form as he hath declared , which is intended by law , to be onely in case of the plaintiffs want of evidence , and when he cannot prove his surmise by any deed , or open act. when one wages his law , he shall bring with him so many of his neighbors as the court shall assign ( sir edward coke says eleven ) to swear with him , that they think in their consciences he hath sworn truly ; who in the civil law are called compurgators . the offer to make the oath , is called wager of law ; and when it is accomplished , it is called the making , or doing of law. see glanvil . lib. . cap. . & . anciently laga was used as latin for law. — lagam regis edwardi vobis reddo , &c. magna char. hen. . anno rich. . cap. . — hen. . cap. . coke on littl. fol. . & . who says it is called wager of law , because in old time the party did ingage with surety , to make his law by such a day . legem vadiare , est cautionem dare de perimplendo legis exigentiam in re litigata ; ut de praestando sacramento ad indictam diem , cum indicto consacramentalium seu conjuratorum numero . spelman . and was a custom anciently used among the egyptians , as boemus in his book de moribus gentium , informeth us . lawyer , ( legista , legisperitus , jurisperitus , our saxons called him lahman . law of merchants ( lex mercatoria ) is become a part of the laws of this realm ; for , if there be two joynt-merchants of wares and merchandise , and one of them dies , his executor shall have the moyety , which is not so in the case of others , not merchants . coke on littl. fol. . anno edw. . stat . . & edw. . cap. . law spiritual ( lex spiritualis ) is the ecclesiastical law , allowed by the laws of this realm , which is not against the common law ( whereof the kings prerogative is a principal part ) nor against the statutes and customs of the realm . and regularly according to such ecclesiastical laws , the ordinary , and other ecclesiastical judges do proceed in causes within their cognizance . coke on littl. fol. . law of the staple ( edw. . stat . . cap. . ) is the same with law-merchant . see inst . fol. , . and staple . law of marque ( anno edw. . stat . . cap. . ) from the german word march , i. limes , a bound or limit ; because they , that are driven to make use of this law , do take the shipping or goods of that people , of whom they have received wrong , and cannot get ordinary justice , when they can take them within their own bounds or precincts . see reprisals . law-day , is otherwise called view of frank-pledge , or court leet . anno edw. . cap. . it is used for the county court. — et quod terrae eorum imperpetuum quietae sint de sectis comit atuum & hundredorum nostrorum , de visu franci plegii & lawdayorum , de turno & auxilio vicecomitum , &c. carta hen. . m. . lawing of dogs , mastiffs must be lawed every three years . cromp. jur. fol. . that is , three claws of the fore-foot shall be cut off by the skin . char. forestae , cap. . or the ball of the forefoot cut out . see expeditate and pèllota . lawless court. on kingshil at rochford in essex , on wednesday morning next , after michaelmas day , at cockscrowing , is held a court , vulgarly called the lawless court. they whisper and have no candle , nor any pen and ink but a coal ; and he that ows sute or service , and appears not , forfeits double his rent every hour he is missing . this court belongs to the honor of raleigh , and to the earl of warwick ; and is called lawless , because held at an unlawful or lawless hour , or quia dicta sine lege . the title of it in the court rolls , runs thus , kingshil in rochford . ss . curia de domino rege , dicta sine lege . tenta est ibidem per ejusdem consuetudinem , ante ortum solis , luceat nisi polus , senescallus solus nil scribit nisi culis , toties voluerit , gallus ut cantaverit , per cujus soli sonitus , curia est summonita , clamat clam pro rege , in curia sine lege , et nisi citò venerint , citiùs paenituerint , et nisi clam accedant , curia non attendat , qui venerit cum lumine , errat in regimine : et dum sunt sine lumine , capti sunt in crimine : curia sine cura , jurati de injuria , tenta ibidem die mercurii ( ante diem ) proximi post festum sancti michaelis arch - angeli , anno regni regis , &c. this court is mentioned in cam. britan , though imperfectly ; who says this servile attendance was imposed on the tenants , for conspiring at the like unseasonable time to raise a commotion , fol. . lawless-man ( sax. laugheles-man , exlex ) is otherwise called an outlaw . pro exlege tenebitur , cum principi non obediat nec legi , & tunc utlagabitur sicut ille qui est extra legem , sicut laugheles-man . bract. lib. . & corona , cap. . lawn . see landa . layland ( terra inculta , novale ) land that lies untilled . leap-year . see bissextile . lease ( from the fr. laisser , i. relinquere , permittere ) is a demise or letting of lands , tenements , right of common , rent , or any hereditament to another , for term of years or life , for a rent reserved . if the lease be written , it is said to be an indenture , deed , poll , or lease in writing ; if made by word of mouth , it is called a lease parol . the party that lets this lease , is called the leassor , and he to whom it is made , the leassee . a lease hath in it six points or parts , . words importing a demise . . a leassee named . . a commencement from a day certain . . a term of years . a determination . . a reservation of rent . coke , vol. . knights case , fol. . lecherwite alias legerwite . see lairwite . leccator , a riotous debauched person , a roaring boy , a tavern-hunter . sciant — quod ego johannes constabularius cestriae dedi — hugoni de dutton , & haeredibus magistratum omnium leccatorum & meretricum totius cestershiriae sicut liberiùs illum magistratum teneo de comite . salvo jure meo mihi & haredibus meis . hiis testibus , &c. sine dat . circa annum . lǽt ( leta , visus franci-plegii ) otherwise called a law-daw : this court , in whose mannor soever kept , is accounted the kings court ; because the authority thereof is originally belonging to the crown , and thence derived to inferior persons , and is a court of record . it enquireth of all offences under high treason , though it cannot punish many , but must certifie them to the justices of assize , by stat. edw. . cap. ult . of which , see inst . fol. . and the stat. edw. . haec est curia prisca illa ( says spelman ) quae inter saxones ad friborgos , decanias , tenmentalas pertinebat . leet comes from the sax. laet , i. censura , arbitrium , or from laetan , censere , aestimare . quòd in hac olim curia de damnis aestimabatur inter vicinos emergentibus , ut patet in ll. edw. conf. cap. . see the antiquities of warwickshire , fol. . legacy ( legatum ) is a particular thing given by a last will and testament ; and he to whom such legacy is given is called a legatee . legalis homo , is taken for him , who stands rectus in curia , not outlawed nor excommunicated , nor defamed ; and in his sence , are those words so often used probi et legales homines . hence legality is taken for the condition of such a man. — ipse tamen malefactor — tradat fidejussores de pace & legalitate tuenda , i. sureties for his good-behavior . ll. edw. conf. cap. . see yoman . legatarie ( legatarius ) he or she to whom any thing is bequeathed , a legatée . spel. says , it is sometimes used pro legato vel nuncio . legatorie ( anno eliz. cap. . ) the same with legatary . legergild ( legergildum ) the same with lairwite . but in the laws of hen. . cap. . it seems to have a different signification . si quis dei fugitivum habet injustè , reddat eum ad rectum , & persolvat ei cujus erit , & regi emender secundum legergildum . legespend . see lespegend . legitimation ( legitimatio ) a making lawful , or legitimate . lent ( from the sax. lencten faesten , i. jejunium vel tempus quadragesimale , the spring fast ) a time of fasting for forty days , next before easter ; mentioned in the stat. & edw. . cap. . and ( according to sir rich. baker , chron. fol. . ) first commanded to be observed in england by ercombert , seventh king of kent , before the year . lep and lace ( leppe & lasse ) is a custom within the mannor of writtel ( in com. essex ) that every cart that comes over a part thereof , called greenbury ( except it be the cart of a nobleman ) pays four pence to the lord of the mannor . this greenbury is conceived to have anciently been a market place , and therefore had this priviledge granted . tobias edmonds , gen senescal . ibid. leporarius , a grey-hound for the hare . — concedo eis duos leporarios & quatuor bracatos ad leporem capiendum in foresta nostra de essexia . mon. angl. par . fol. . a. leproso amovendo , is a writ that lies for a parish to remove a leper or lazar , that thrusts himself into the company of his neighbors , either in church or other publick meetings to their annoyance . fitz. nat. br. fol. . lespegend ( sax. les-thegen , i. barominor ) — sint sub quolibet horum quatuor ex mediocribus hominibus ( quos angli lespegend nuncupant , dani vero yoong men vocant ) locati , qui curam & onus tum viridis tum veneris suscipiant . constitut . canuti regis de foresta , art. . lestage . see lastage . leth. see lath. letherwite . inst . fol. . this is doubtless there mistaken , or false printed for lecherwite . see lairwite . letters patent ( literae patentes ) are writings , sealed with the great seal of england , whereby a man is enabled to do or enjoy that , which otherwise of himself he could not . anno hen. . cap. . and they are so called , because they are open , ready to be shewed for confirmation of the authority thereby given . letters patent may be granted by common persons , but they are rather called patents ; yet for distinction , the kings letters patent are sometimes called letters patent royal. anno hen. . cap. . letters patent conclude with teste me ipso , &c. charters , with hiis testibus . part inst . fol. . letter of atturney ( litera atturnati ) is a writing authorising an atturney , that is , a man appointed to do a lawful act in our steeds . west , pa. . symb. lib. . sect . . as a letter of atturney to give seisin of lands , thus anciently . pateat universis per presentes quod ego johannes gour dominus de peodelestone attornavi loco meo dilectum mihi in christo johannem hendyng ad ponendum william nasche & rogerum nasche in plena & pacifica seisina in omnibus illis terris , & tenementis cum pertin . suis , quae & quas habeo in orleton prout in carta feoffamenti dictis will. & rogero inde confecta plenius continetur . ratum haben . & gratum quicquid dictus iohannes nomine meo fecerit in praemissis . in cujus , &c. dat . ed. . letters of marq — see marq and reprisals . levant and couchant , is , when cattel have been so long in another mans ground , that they have lain down , and are risen again to seed ; in ancient records levantes & cubantes . see falda . levari facias , is a writ directed to the sheriff for the levying a summ of money upon his lands and tenements , who has forfeited a recognizance . reg. of writs , fo . . b. levari facias damna de disseisitoribus , is a writ directed to the sheriff , for the levying dammages wherein the disseisor has formerly been condemned to the disseisee . reg. of writs , fo . . b. levari facias residuum debii , is a writ directed to the sheriff , for the levying the remnant of a debt upon lands and tenements , or chattels of the debtor , that has been in part satisfy'd before . reg. of writs , fol. . levari facias quando vicecomes returnavit quod non habuit emptores , is a writ commanding the sheriff to sell the goods of the debtor , which he has already taken and returned , that he could not sell . reg. of writs , fol. . a. levy , ( levare ) signifies to gather , or exact , as to levy money ; and is sometimes used to erect or set up , as to levy a mill. kitchin , fo . . also to raise or cast up , as to levy a ditch . old. nat. br. fol. . and to levy a fine , which is now the usual term ; but , i have seen a deed , where in william st. george esquire convenants to rere a fine of the mannors of brandon and wych-hampton . dat. hen. . lex bretoise , the law of the britans , or marches of wales , lex marchiarum . see bretoyse . lex deraisnia , rectius deraisina , is the proot of a thing , which one denies to be done by him , and his adversary affirms it ; defeating and confounding the assertion of his adversary , and shewing it to be without and against reason or probability . juris membrum est normannici , quod in prisco ejusdem custumario , ca. . sic definitur . deraisina autem est lex quaedam in normania constituta , per quam in simplicibus querelis , insecutus , factum quod a parte adversa ei obiicitur , se non fecisse declarat . vide plura ibidem . & dereyn . ley gager . ( anno car. . ea . . ) wager of law. see law. ley , ( lex . ) see law. libel , ( libellus , ) litterally signifies a little book ; but by use it is the original declaration of any action in the civil law , an. hen. . ca. & ed. . ca. . it signifies also a scandalous report of any man cast abroad , or otherwise unlawfully published in writing but then , for difference sake , it is called famosus libellus , an infamous libel . see cokes rep. lib. . fo . , . & inst . fo . . see rime . libello habendo . see copia libelli deliberanda . liber taurus , a free bull. — compertum per jur. quod will. de losa fuit seisitus de libero tauro habendo in hamsted , &c. — ideo consideratum est , quod praedictus w. recuperet damna sua , quae taxantur per iur. ad iv s , pro imparcatione ejusdem tauri , &c. norf. ed. . libera batella , a free boat. — per liberam batellam , hoc est , habere unam cimbam ad piscand . subter pontem cestriae & supra etonam , & ibidem cum omni genere retium . plac. in itin. apud cestriam hen. . libera chasea habenda , is a writ judicial , granted to a man for a free chase belonging to his mannor , after he has , by a jury , proved it to belong to him . reg. of writs judicial , fo . and . liberate , is an original writ , issuing out of the chancery to the treasurer , chamberlanes , and barons of the exchequer , or clerk of the hamper &c. for the payment of any annual pension , or other summ granted under the great seal ; or to a sheriff , to deliver possession of lands and goods extended . see broke tit . taile d' exchequer , & inst . fol. . libertate probanda , was a writ that lay for such as were challenged for slaves , and offer'd to prove themselves free , &c. fitz. nat. br. fo . . villenage , and the several appendixes thereof , viz. infranchisement , writs de nativo habendo & libertate probanda , and the pleadings and trials relating thereunto , were great titles in the old books , but now antiquated by time . pref. to rolls abridg. libertatibus allocandis , is a writ , that lies for a citizen or burgess , ( that , contrary to his liberty , is impleaded ) to have his priviledge allowed . reg. of writs , fo . . libertatibus exigendis in itinere , is a writ whereby the king wills the justices in eyre to admit of an atturney for the defence of another mans liberty before them . reg. of writs , fo . . liberum herbagium . see herbagium . librata terrae , contains four oxgangs , and every oxgang acres . schene , verbo bovata terrae . see fardingdeal . licence to arise , ( licentia surgendi , ) is a liberty , or space of time given by the court to a tenant to arise out of his bed , who is essoyned de malo lecti , in a real action . see bracton , lib. . tract . . ca. . & . and horns mirror , ca. des essoins . licentia surgendi is the writ thereupon . reg. fo . . licentia transfretandi , is a writ or warrant directed to the keepers of dover-port , &c. willing them to let such pass over-sea , who have formerly obtained the kings licence thereunto . reg. of writs , fo . . licentia concordandi , ( anno car. . ca. . ) see kings-silver . lidford-law , is grown to a kind of proverb , to hang men first , and to indite them afterwards ; so called , from a town of that name in cornwal ; where a court is held , which was heretofore of great extent ; the course whereof is very summary . the like being said of halifax in the county of york . lieftenant , or lieutenant , ( locum-tenens , ) the kings deputy , he that exercises the kings , or any other persons place , or represents his person : as the lieutenant of ireland , anno hen. . ca. . and & edw. . ca. . whence that officer seems to take his beginning . lieutenant of the ordnance , anno eliz. ca. . life-rent , is a rent or exhibition , — which a man receives either for term of life , or for sustentation of life . nota quod eschaeta terrarum felonis post annum & diem , ( viz. his life-rent , ) ipso vivente computatur inter bona mobilia . skenaus ad quon . attach . ca. . vers . . lieges , and liege-people , ( ligati , ) the kings subjects , anciently so called , because they owe , and are bound to pay allegiance to him. anno hen. . ca. . hen. . ca. . and divers other statutes : yet anciently private persons had their leiges . — reinaldus dei gratia abbas ramesiae , praeposito & hominibus de brancestre & omnibus vicinis francis & anglis salutem . sciatis me dedisse terram ulf in depedene , ( hodie depedale ) buic boselino & uxori ejus alfniae , ita bene sicut homines de brancestre illum testificant verum habuisse , ea conditione quod effecti sunt homines liges . lib. rames . sect. . omnibus , &c. reginaldus rex insularum salutem . sciatis quod deveni homo ligeus domini regis angliae iohannis contra omnes mortales quamdiu vixero , & inde ei sidelitatem & sacramentum praestiti , et in hujus rei testimonium hanc eartam meam inde feci . t. domino f. wint. episcopo . m. s. penes wil. dugdale ar. see ligeancy . lierwit . see lairwite . ligeancy , ( ligantia , from the ital. liga , a league or bond ; vinculum arctius inter subditum & regem utrosque invicem connectens ; hunc ad protectionem & justum regimen , illos ad tributa & debitam subjectionem , ) is such a duty or fealty , as no man may owe or bear to more then one lord ; and therefore it is most commonly used for that duty and allegiance which every good subject owes to his liege-lord the king. soveraigne lord , i henry percy become your subgette and leige man , and promit to god and you , that hereafter i faith and trouth shall hear to you , as to my sovereign leige lord , and to your heirs kings of england of life and limme , and of earthly worshippe , for to live and die ayeinst all erthly people , and to you and to your commandements i shall be obeysant , as god me help and his holy evangelists . oct. ed. . claus . ed. . m. . in dorso . see lieges . ligeance , ( ligeantia a ligando , ) is a true and faithful obedience of the subject to his soveraign . sometimes it signifies the dominion or territory of the liege lord. as anno ed. 〈◊〉 . stat. . children born out of ligeance of the king. also the same with ligeancy . see coke on litt. fo . . a. and calvins case . . rep. limitation of assize , ( limitatio assizae ) is a certain time set down by statute , wherein a man must allege himself or his ancestor to have been seized of lands sued for by a writ of assize . see the stat● of merton , ca. . and westm . . ca. . so it is used in old nat. br ▪ fo . . in these words , the writ de consuetudinibus & servitiis lyeth , where i or my ancestors , after the limitation of assize , were not seized of the customs , &c. but before the limitation of assize we were seized , &c. linarium , a place where flax is sown , a flax-plat . — et messuagium quod est juxta cimiterium , cum linario , quod jacet juxta praedictum messuagium . pat. hen. . par. . m. . littera , as tres carectatas litterae , three cartloads of straw or litter . mon. angl. par. fo . b. libery , ( from the fr. livre , i. insigne , gestamen , ) signifies a hat , coat , cloak or gown , which a noble or gentleman gives to his servants or followers , with cognizance or without , and is mentioned in rich. 〈◊〉 . ca. . and car. . ca. . and divers other statutes . see reteiner . also , before the stat. of car. . ca. . it did signifie a delivery of possession to those tenants which held of the king in capite , or knights-service ; for , the king , by his prerogative , had primier seisin , or the first possession of all lands and tenements so holden of him . stamf. praerog . ca. . fo . . it was in the nature of a restitution , sayes sir edward coke . and the writ which lay for the heir to obtain the possession or seisin of his lands at the kings hands , was called his livery . fitz. nat. br. fo . . but by the said statute all wardships , liveries , &c. are taken away and discharged . livery of seisin , ( deliberatio seisinae , ) is a delivery of possession of lands , tenements , or other corporeal thing , ( for , of things incorporeal no livery of seisin may be ) to one that has right , or a probability of right thereto . for , ( as bracton sayes , lib. . ca. . num . . ) traditio debet esse vestita , & non nuda . it is a ceremony used in conveyance of lands or tenements , where an estate in feesimple , feetayl , or a freehold passeth ; and , it is a testimonial of the willing departure of him , who makes the livery , from the thing whereof livery is made . and the receiving of the livery is a willing acceptance by the other party of all that whereof the other hath devested himself . the common manner of delivery of seisin , is thus : if it be in the open field , where is no house , nor building , and if the estate pass by deed , one openly reads it or declares the effect of it , and after that is fealed , the vendor takes it in his hands , with a clod of earth upon a twig or bough , which he delivers to the vendee , in the name of possession or seisin , according to the effect of the deed : but if there be a house or building upon the land , then this is to be done at the door of it , ( none being left at that time within the house ) and the ring of the door delivered to the vendee , who enters alone , shuts the door , and presently opens it again . if it be a house , without land or ground , the livery is made , and possession taken by delivery of the ring of the door , and deed onely . and where it is without deed , either of lands or tenements , there the party declares by word of mouth , before witnesses , the estate he parts with , and then delivers seisin or possession in manner asoresaid : and so the land or tenement passeth as well as by deed , and that by force of the livery of seisin . see west . par . . symbol . lib. . sect . . and coke on littl. fol. . a. this was anciently a pair of gloves , a ring , knife , ear of wheat , &c. was delivered in sign or token of ▪ livery and seisin . local ( localis ) tied or annexed to a place certain : as the thing is local and annexed to the freehold . kitchin , fol. . an action of trespass for battery , &c. is transitory , not local , that is , not needful that the place of the battery should be set down , as material in the declaration , or if it be set down , that the defendant should traverse the place set down , by saying he did not commit the battery in the place mentioned in the declaration , and so avoid the action . and again , fol. . the place is not local , that is not material to be set down in certainty , or that the action should be tried or laid in the same county where the fact was done . the gard of the person , and of the lands , differs in this ; because the person , being transitory , the lord might have his ravishment de gard , before he was seised of him , but not of the land , because it is local . perkins . grants , . locus partitus , signifies a division made between two towns or counties , to make tryal in , whether the land or place in question lies . fleta , lib. . cap. . num . . lode ship , a kinde of fishing vessel , mentioned edw. . stat . . cap. . lodeworks , one of the works belonging to the stannaries in cornwal ; for which , see stremeworks . lodemerege . — item en droit de lodemerege dient les avantditz jurez , que leur sembli cest case , ils ne scayvent meilleur advise ne remedy , mays que ce soit desore user & fait per maner quest conteyne en le ley d'oleron . pryns animad . on inst . fol. . logating , an unlawful game , mentioned hen ▪ . cap. . now disused . logwood , is a kinde of wood , which divers use , otherwise called block-wood , brought from compethe , and other rem●●● parts , and was prohibited by stat. eliz. ca. . and ejusdem , cap. . but since by stat. car. . cap. . the importation and use of it is allowed . loich or loych fish . ( edw. . stat . . cap. . ) and that no fish called loych fish , be chosen or tried , but onely in thrée parts , that is to say , lob , ling , and god. lollardy and lollery ( anno & phil. & ma. cap. . ) the doctrine and opinion of the lollards . rogerus acton miles ▪ pro proditione & lollardia distrahatur & suspendatur , & sic suspensus pendeat ad voluntatem regis . middlesex plac. hill. hen. . rot. . & trin. hen. . rot. . lollards ( so called from walter lollard , a german , first author of this sect , living about the year . ) were certain hereticks ( at least , in the opinion of those times ) that abounded here in england in the days of edward the third , and henry the fifth , whereof wicliff was the cheif in this nation , according to stow in his annals , fol. . they are mentioned anno hen. . cap. . against these lollards much was decreed by tho. arundel , archbishop of canterbury , in a council at oxford . see their tenets in spotswoods . history of scotland , fol. . the high sheriff of every county , is bound by his oath , to suppress them . — you shall ( says the oath ) do all your pain and diligence , to destroy , and make to cease all manner of heresie and errors , commonly called lollardies , within your bailiwick from time to time with all your power , &c. the intent of the hereticks called lollards , was to subvert the christian faith , the law of god , the church , and the realm ; so said the statute of hen. . cap. . which was repealed edw. . cap. . see inst . fol. . and caudries case . lord ( dominus , sax hlaford , signifying a bread-giver , bountiful , or hospitable ) is a word of honor with us , and used diversly . sometimes being attributed to those , who are noble by birth or creation , and are otherwise called lords of the parliament , and peers of the realm ; sometimes to those , who are so called by the curtesie of england , as all the sons of a duke , or marquess , and the eldest son of an earl. sometimes to persons , honorable by office , as lord cheif justice , &c. and sometimes to an inferior person ▪ that hath fee , and consequently , the homage of tenants within his mannor ; for by his tenants he is called lord , and in some places , for distinction sake , landlord . in which last signification , it is most used in our law-books , where it is divided into lord paramount , and lord mesn . lord mesn is he that is owner of a mannor , and by vertue thereof hath-tenants holding of him in fee , and by copy of court-roll ; and yet holds himself of a superior lord , called lord paramount , or above him . old nat. br. fol. . we likewise read of very lord , and very tenant . very lord is he , who is immediate lord to his tenant ; and very tenant , he that holds immediately of that lord. so that if there be lord paramount , lord mesn , and tenant ; the lord paramount is not very lord to the tenant . broke tit . heriot , num . lord in gross , is he who is lord , not by reason of any mannor , as the king in respect of his crown . fitz. nat. br. fol. . and . where also is a case wherein a private person is a lord in gross . as a man makes a gift in tail of all the land he hath , to hold of him , and dies ; his heir hath but a seigniory in gross . lorriners or lorimers ( fr. lormier , from the lat. lorum ) is one of the companies of london , that make bits for bridles , spurs , and such like small iron ware . anno rich. . cap. . lot or loth , is the thirteenth dish of lead , in the darbishire mines , which belongs to the king , pro dominio suo . — presentatum est in ragemannis per de alto pecco , quod rad. de wyne fecit quandam purpresturam in solo domini regis in tatington & prestcliv● , faciendo mineram plumbi , unde rex s●lebat percipere le lot mineris , i. tertium decimum vas , &c. rot. rageman & de quo warranto de itin. de derbi . edw. . — et de miner● lucrata in hujusmodi opere in feodo domini regis , dominus rex habebit pro dominio suo tertium decimum discum , qui dicitur le loth. eschaet . de anno edw ▪ . num . . see cope . lotherwit alias leyerwit , is a liberty or priviledge , to take amends of him that defiles ones bond-woman without licence . rastals exposition of words . according to others , it is an amends for lying with a bond-woman . see lairwit . some think it should be rather written legerwit , for leger in saxon , signifies a bed ; or lecherwite , a mulct or punishment for lechery . lourgulary ( fr. lou●deri● , i. inhumanitas , incivilitas ) in statuto pro stratis london . impresso anno . art. . casting any corrupt thing , appoisoning the water , is lowrgulary and felony ; some think it a corruption of burglary . see glossar . in decem scriptores , verbo , burglaria . lowbellers ( anno eliz. cap. . ) are such as go with light and a bell , by the sight whereof , birds sitting on the ground , become somewhat stupified , and so are covered with a net , and taken . this name is derived from the word low , which , in the saxon , or old english , signifies a flame of fire . see the antiq . of warwickshire , p. . lushborow or lushburgs , was a base sort of money coyned beyond seas , to the likeness of english money , in the days of edward the third , and brought in , to deceive the king and his people . to avoid which , it was made treason , for any man wittingly to bring in any such . anno edw. . stat . . cap. . par● inst . fol. . m. m. every person convicted for murder , ( man-slaughter ) and admitted to the benefit of his clergy , to be marked with an m. upon the brawn of the left-thumb . anno hen. . cap. . macegriefs alias macegrefs ( mac●ecar●i ) are such as willingly buy and sell stoln flesh , knowing the same to be stoln . britton , cap. . in turnis vice-com ' juratores , inter alia , presenteront — d● macegrefs achat●uns & vendauns a ●scient chars ●mbles . cromptons justice of peace , fol. . a. vide ll. in● cap. . de ●arnem furtivam e●●●t● . madning-money : old roman coyns , sometimes found about dunstable , are so called by the countrey people ; and retains the name from magintum used by the emperor antonine in his itinerary for du●stable . c●m . maeremium , is derived from the old norman word marism● , for timber . rex — dilecto — roger● de horsley constabulario castri sui de baumburg salutem . m●ndamus vobis quod ●omines partium pr●dict . nuper in castro pr●dicto pro salvatione corporum & rerum suarum contra aggressus scot●rum commorantes , maeremium de logi●● suis , 〈◊〉 non bona & catalla ac victualia sua in codem castro , & in f●ssato & mot● ejusdem existentia , sine impedimonto , capere & cari●re , & quo voluerint a●portare , pormittatis , &c. t. rege apud co 〈…〉 k. ju●ii . claus . edw. . m. . magbote or maegbote ( from the sax. maeg , i. cognatus , & bote compensatio ) a recompence for the slaying or murder of ones kinsman . for anciently , in this nation , corporal punishments for murder , and other great offences , were sometimes transmuted into pecuniary fines , if the friends of the party slain , were so content . ll. canuti regis , par. . cap. . magna assisa eligenda , is a writ directed to the sheriff , to summon four lawful knights before the justices of assise there , upon their oaths , to chuse twelve knights of the vicinage ▪ &c. to pass upon the gr●at assise , between a. plaintiff , and b. defendant . reg. of writs , fol. . 〈◊〉 ▪ 〈◊〉 〈◊〉 , the great charter , granted in the ninth year of henry the third , and confirmed by edward the first , and other kings . the reason why it was so termed , was either for the excellency of the laws and liberties therein contained , or else , because there was another charter , called the charter of the forest , established with it , which was the lesser of the two ; or , because it contained more then many other charters , or more then the charter of king henry the first . or in regard of the wars and great troubles in the obtaining of it , or the great and remarkable solemnity , in the denouncing excommunication and direful anathema's against the infringers of it . see spelmans gloss . on this word at large , who calls it augustissimum anglicarum libertatum diploma & sacra anchora . so edward coke says , it is magnum in parvo , and that it hath been above thirty times confirmed . on littl. fol. . mahim ( mahemium ) from the fr. mehaigner , i. mutilare ) signifies a corporal hurt , whereby a man loseth the use of any member , that is , or may be any defence to him in battel : as the eye , the hand , the foot , scalp of the head , foretooth , or , as some say , any finger , or to● . glanvil . lib. . cap. . see br●ct●n at large , lib. . tract . . cap. . num . . the cutting of an ear or nose , or breaking the hinder teeth , is no mahim ; because it is rather a deforming the body , then a diminishing its strength : and when the case is difficult to judge , whether it be a mahim , or not , the ●udges commonly behold the party wounded , and sometimes take the opinion of some able chirurgeon . the canonists call it membri mutilationem . all agree , that it is the loss of a member , or the use thereof . see skene , verbo , machanium . maiden ●ents , is a noble paid by every tenant in the mannor of builth in com. radnor , at their marriage , and it was anciently given to the lord for his quitting the custom of marcheta , whereby some fancy , that he was to have the first nights lodging with his tenants wife : but i rather suppose it be a fine for the licence to marry a daughter . sir edm. sawyer is now lord of this mannor . see marcheta . maignagium ( from the fr. maignen , i. faber ararius ) a brasiers-shop . idem h●go tenebat unum maignagium in for●●jusdem villa , &c. lib. ram●s . sect . . see cotland . though inst . fol. . confounds managium with m●suagium . maile , anciently a kinde of money . etiam latiu● accipitur , nec tantum pro denarii● pl●●ibus , sed & portione aliqua rei fr 〈…〉 〈◊〉 anno●aria ; ●oc verè in plaga angliae bor●ali blackmaile dicitur , ut pocuniario illo distinguatur . inquis . capta post mortem wil. de coway , anno edw. . n. . lan● . est in ●●verston quoddam proficuu● vocat ●●●smales , & qu●dda● proficuum apud plumpton , vocat . cowmale spel. . see blackmaile . mainour , manour , or meinour ( from the fr. manier , i. manu tractar● ) signifies the thing that a thei● takes away or steals . as , to be taken with the manour ( pl. cor. fol. . ) is to be taken with the thing stoln about him . again , fol. . it was presented , that a theife was delivered to the viscount together with the manour . and again , fo . . if the defendant were taken with the manor , and the manour be carried to the court , they in ancient times would arraign him upon the manour , without any appeal or inditement . — si dicti servientes seu baliv● sui aliquem latronem pro aliquo furto ubicunque f●erit facto , cum mannopere , infra feodum dominii sui pr●dicti ceperint seu attach . & si ille latro feloniam illam coram quatuor villat . voluntarie cognoverit , tunc liceat dictis servientibus seu balivis suis dictum 〈…〉 onem decollare , & dictus dux , ( lanc. ) tunc ●abebit omnia bona sua , &c. plac. apud cestriam , ed. . de quo war. in maner de halton . in old nat. br. fo . . it is thus used . where a man makes a thing by manour , or levying or estoping , in such case he shall have assise , where it signifies handy-labour , and is but an abbreviation of mainovery . mainpernable , bailable . what prisoners ar● mainpernable , and what not . anno edw. . ca. . see mainprise . maine-porte , is a small tribute , ( commonly of loaves of bread , ) which in some places the parishioners pay to the rector of their church , in recompence for certain tythes . see waxshot . vicaria de wragby , ( in com. linc. ) consistit in toto altarag●o & in ceragio , vulgariter dict . waxshot in panibu● vulgariter dict . manport , & in incremento denariorum . sancti petri , vulgariter dict . fireharth . spelman . mainprise , ( manucaptio , ) of the fr. main . i. manus & prins . i. captus , ) signifies the taking or receiving a man into friendly custody , who otherwise is , or might be committed to prison , upon security given for his forthcoming , at a day assigned . as to let one to mainprise , ( old nat. br. fo . . ) is to commit him to those that undertake his appearance at the day appointed . and they , that thus undertake for any , are called mainpernors ; because they receive him into their hands . pl. cor. fo . . hence the word mainpernable , that may be thus bailed ; for ▪ in many cases a man is not mainpernable , whereof see brook , tit . mainprise . and fitz. nat. br. fo . . manwood , ( in his par. for. laws , pa. . ) makes a great difference between bayl and mainprise ; for , he that is mainprised , is already said to be at large , and to go at his own liberty , after the day he is set to mainprise , until the day of his appearance ; but , not so , where a man is let to bayl● to four or two men , by the lord iustice in eyre of the fore●t , or any other judge , until a certain day ; for , there he is alwayes accounted by the law to be in their ward and custody for the time ; and they may , if they will , keep him in prison all that time . so that , he that is so bailed , shall not be said by the law , to be at large , or at his own liberty . thus manwood . mainprise also is an undertaking in a su 〈…〉 certain : bail answers the conde●nation in civil causes , and in criminals body for body . cottoni post●uma . when mainprises may be granted , and when not , see cromptons justice of p. fo . . and britton , fol. . the author of the mirror of iustices sayes , that pledges are those that ball or redeem any thing but the body of a man , and mainpernors those , that free the body ; that pledges therefore belong properly to real and mixt actions , and mainpernors to personal . lib. . ca. des pledges & mainpernors . see inst . fo . . ●ainsworn , in the north , signifies as much as forsworn . brownl . rep . h●b . rep . . maintainor , ( anno hen. . ca. . ) is he that maintains or seconds a cause depending in sute between others , either by disbursing money , or making friends for either party , towards his help . maintenance , ( manutenentia ) signifies the upholding or maintaining a cause or person , eithor by word , writing , countenance or deed ; metaphorically taken from the succoring a young child that learns to go by ones hand ; and is used in the evil part . anno hen. . ca. . when a mans act in this kind is by law accounted maintenance , and when not . see brooke , tit . maintenance and kitchin , fo . . there lies a writ against a man for this offence , called a wr●t ef maintenance . see coke on litt. fo . . b. maison dieu , ( fr. ) an hospital , or alms-house . see meason dieu . make , ( facere , ) signifies to perform or execute ; as to make his law , is to perform that law , which he has formerly bound himself unto , that is , to clear himself of an action commenced against him , by his oath , and the oathes of his neighbors . old. nat. br. fo . . ki●c●in , fo . . which law seems to be borrowed of the feudists , who call those men that swear for another in this case , sacramen●ales . the formal words used by him that makes his law , are commonly these : hear , o ye iustices ? that i do not o●● this summ of money demanded , neither all , nor any part thereof , in manner and form declared : so help me god , and the contents of this book . to make services or custom , is nothing else but to perform them . old nat. 〈◊〉 . fo . . ●alediction , ( maledictio , ) a curse , which was of old usually annexed to donations of land , made to churches and religious hous●● . — si quic autem ( quod no● 〈◊〉 ) 〈…〉 c ●ostram donationem infringero 〈◊〉 ▪ p●rp●ss●● 〈◊〉 gelid●● glaci 〈…〉 ●●●tibus & malig●orum spiri●u●m ▪ terribiles 〈◊〉 cruciat●● 〈◊〉 sisse non qui●sca● , n●s● pri●● in rigu●● p 〈…〉 g●mit 〈…〉 , & pur●●mendatione emenda●●rit . carta regis athelstani monast . d● wil●un● ▪ anno . again — bolial s● q●i● fili●● carta●● ha●● j 〈…〉 〈◊〉 conscriptam inimicali zel● corrumper● de●id●r 〈◊〉 , 〈◊〉 non d●bi●●t , a 〈◊〉 〈◊〉 mei servientibus ▪ deo nunc & 〈◊〉 & usque in s●mpiternum abdicatum & excommunicatum sine fine cruciandum , unde post mortem a tartariis rapsus ministris , in profundum pestiferae mortis inferni flammigera concludetur in domo , & ibidem in quandam ollam vulcani , ligatis projicietur membris , quae assidue bulliente pice repleta esse testatur ; & a talibus frangentibus seu minuentibus intolleratissime , atrociterque , absque ulla misericordia sentitur ; nisi hoc ante mortem paenitentiae lamentis emendaverit . carta eadredi regis . mon. angl. par. fo . . — quod si forte post haec aliquis haeredum meorum de biis elemosynis a pr 〈…〉 fata ecclesia aliquid abstulerit , ex ore meo in conspectu dei sit ille maledictus , & in tremendo iudicio , nisi resipuerit , condemnatus ; amen . carta roberti camerarii comitis richmundiae , in bibl. cotton . malefesance , ( from the fr. malfaire , i. to offend , or transgress ) a doing of evil , a transgressing . crokes rep. par. fo . . maletent , or maletolte , ( fr. maletoste , ) ( i. malum vel indebitum telonium , ) in the statute called the confirmation of the liberties , &c. anno edw. . ca. . is interpreted to be a toll of s . for every sack of wool. stow in his annals calls it a maletot , fo . . see the stat. de tallagio non concedendo , anno ejusdem . nothing from henceforth shall be taken of sacks of wool , by color or occasion of maletent . in france they had an extraordinary tax called maletoste . malin . see marle . malveis procurors , in art. super chartas , ca. . is understood of such as use to pack juries by nomination , or other practise or procurement . inst . fo . . manbote , ( sax. man-bot , ) a recompense for homicide , or a compensation due to the lord , for the slaughter of his man or vassal . manbote vero , i. compensatio domino persolvenda pro homine suo occiso ) anglorum lege regi & archiepiscopo tres marcas de hominibus eorum propriis : sed episcopo ejusdem comitatus & consuli & dapifero regis viginti solidos , baronibus autem aliis decem solidos , &c. spel. de concil . vol. . fol. . see hoveden parte poster . annal . fo . . & bote. manca , ( charta regis eadgari eccles . sancti pauli , anno . indictione . — cum lato digno pretio . i. lx . mancas in auro purissimo . ) was a square piece of gold , commonly valued at pence ; & mancusa , was as much as a mark of silver . notes upon canutus lawes . ( id est , manucusa , coyned with the hand . ) manciple , ( manceps — a clerk of the kitchin , or caterer , ) an officer anciently so called in the inner-temple ) now he is called steward there ; ) and still in colledges , of whom jeoffrey chaucer , our ancient poet , and a student in this house , thus a manciple there was in the temple , of which all catours might taken ( ensemple . mandamus , is a writ that lay after the year and day , where , in the mean time , the writ called diem clausit extremum had not been sent out to the escheator . fitz. nat. br. fo . . b. see diem clausit extremum . mandamus was also a charge to the sheriff to take into the kings hands , all the lands and tenements of the kings widow , who , against her oath formerly given , married without the kings consent . reg. fo . . b. see widow . mandatary , ( mandatarius , ) he , to whom a commandement or charge is given . also he that comes to a benefice by a mandamus . mandate , ( mandatum , ) is a commandement judicial of the king or his justices , to have any thing done for the dispatch of justice , whereof you may see diversity in the table of the register iudicial , on this word . the bishops mandat to the sheriff , anno eliz. ca. . manentes , was anciently used for tenentes , or tenants . concil . synodal . apud clovesho . anno . also manses , or hides of land. cressy's ch. history , fo . . manning , ( manopera , ) a dayes work of a man ; in some ancient deeds i have seen reserved so much rent and so many mannings . manor , ( manerium a manendo , of abiding there ; because the lord of it did usually reside there , ) est feodum nobile partim vassallis ( quos tenentes vocamus ) ob certa servitia concessum ; partim domino in usum familiae suae , cum jurisdictione in vassallos , ob concessa praedia reservatum . quae vassallis conceduntur terras dicimus tenementales , quae domino reservantur dominicales . totum vero feodum dominium appellatur , olim baronia ; unde curia quae huic praeest jurisdictioni hodie curia baronis nomen retinet . touching its original , there was antiently a certain compass of ground , granted by the king to some baron , or such like man of worth , for him and his heirs to dwell upon , and to exercise some jurisdiction , more or less , within that circuit , as he thought good to grant ; performing him such services , and paying such yearly rent for the same , as he by his grant required ; and , that afterward this great man parcelled his land to other meaner men , enjoyning them again such services and rents , as he thought good ; and by that means , as he became tenant to the king , so the inferiors became tenants to him . see perkins reservations . . and horns mirror of justices , lib. . ca. du roy alfred . in these dayes a manor rather signifies the jurisdiction and royalty incorporeal , than the land or scite : for , a man may have a manor in gross , that is , the right and interest of a court baron , with the perquisits , and another enjoy every foot of the land belonging to it . kitchin , fo . . bracton , lib. . tract . . ca. . nu . . see fee. a manor may be compounded of divers things , as of a house , arable land , pasture , meadow , wood , rent , advowzen , court-baron , and such like . and this ought to be by long continuance of time , bey ond mans memory ; for , at this day , ( as some hold ) a manor cannot be made , because a court-baron cannot be made , and a mannor cannot be without a court-baron , and two suiters at least . manpygarnon . will. walcote tenet manerium de adington in com. surr. per servitium inveniendi , ad coronationem regis , quoddam potagium , vocat . manpygarnon . mansion , ( mansio , a manendo , ) a dwelling house , a country habitation ; most commonly used for the lords chief dwelling house within his fee ; otherwise called the capital messuage , or the chief manor-place . see skene , verbo , mansus . the latin word mansia , in the charter , granted by king kenulphus to ruchin , abbot of abingdon , and mentioned by sir edward coke in his report de jure regis ecclesiastico , seems to signifie a certain quantity of land. hida vel mansia . mat. westm . in anno . and in a charter of edw. conf. it is written mansa . v. hist . of pauls , fo . . mansura & masura , are used in domesday and other ancient records , for mansiones vel habitacula villicorum ; but in carta de anno edw. . n. . we read — de tribus mansuris terrae in wigornia — quaere . manslaughter , ( homicidium , ) is the unlawful killing a man without prepensed malice ; as when two meet , and , upon some sudden occasion falling out , the one kills the other . it differs from murder , because it is not done with foregoing malice ; and , from chancemedley , because it has a present intent to kill ; and this is felony , but admits clergy for the first time . stamf. pl. cor. lib. ca. . and britton , ca. . it is confounded with murder in the stat. edw. . ca. . mansus , anciently a farm. seldens hist . of tythes , pa. . haec indentura testatur , quod reginaldus grey dominus de hastings , weisford & de ruthin tradidit iohanni saunders — mansum manerii de bedworth , &c. dat . hen. . here mansum manerii is used for the mannor house , or mannor-place . mansum capitale dicitur de aedibus domini manerii , quas aulam vulgo nuncupant . mansum or mansus is sometimes confounded with mesuagium . spelman . manubrium , the handle , or haft of a sword or dagger . — iur. praesentant quod a. de c. aurifaber iunii iac. apud s. praedict . quoddam manubrium pugionis ferreum , anglice dictum , a dagger hilt of iron , &c. apud maidston . manucaptio , is a writ that lies for a man , who , taken on suspicion of felony , and offering sufficient bayl for his appearance , cannot be admitted thereto by the sheriff , or other having power to let to mainprise . fitz. nat. br. fo . . see mainprise . how diversly it is used see the table of reg. of writs . and pryns animadversions , fo . . manuel , ( manuelis , ) that whereof present profit may be made , or that is employed or used by the hand . stamf. praerog . fol. . as such a thing in the manuel occupation of one . i. actually used , or employed by him . manumission , ( manumissio , ) is the freeing a villain or slave out of bondage . the form of this in the time of the conqueror , lamb. in his archai , fo . . sets down in these words , si quis velit servum suum liberum facere , tradat cum vicecomiti per manum dextram , in pleno comitatu , & quietum illum clamare debet a jugo servitutis suae per manumissionem , & ostendat ei liberas portas & vias , & tradat illi libera arma , scilicet lanceam & gladium , & deinde liber homo efficitur . some also were manumitted by charter . vide brooke tit . villenage , fo . . another way of manumitting , was , for the lord to take the bondman by the head , and say , i will that this man be free , and then shove him out of his hand . there was also manumission imply'd , as when the lord made an obligation for payment of money to the bondman at a certain day , or sued him , where he might enter without sute , or the like . see neif . edwardus dei gratia , rex angliae & franciae & dominus hiberniae , omnibus ad quos praesentes literae nostrae pervenerint , salutem . sciatis quod nos ex gratia nostra speciali & ex mero motu nostro manu misimus & ab omni jugo servitutis liberamus johannem dedwiche de orleton in com. heref. husbandman , & william dedwiche de eadem husbandman nativos nostros de manerio sive dominio nostro de orleton praedict . cum omnibus bonis & catallis suis & tuta eorum sequela & progenie de eorum corporibus procreatis sive procreandis . ita quod nec nos nec heredes nec successores nec assignati nostri aliquod iuris vel clamei ratione alicujus villenagii in ejusdem johanne & willielmo seu de eorum progenie procreatis sive procreandis , seu de bonis & catallis suis exigere vel vendicare poterimus in futuro , &c. in cujus rei testimon . has literas nostras sub sigillo nostro comitis nostrae marchiae fieri fecimus patentes . dat. vicessimo . die mensis aprilis anno regni nostri octavo . ex ipso autographo penes johan colman gen. locus sigil . i. sigillum : edwardi quarti dei gra : regis anglie francie diu : hiberme conntatussin marchie manupastus . saepe obvenit in forensi dialecto , pro famulo & serviente domestico . spelman . — erat culpabilis tanquam de manupasto ( manwood , cap. . n. . ) i. he shall be culpable , as of a thing done by one of his family . gloss . in x. scriptor . manutenentia , is a writ used in case of maintenance . reg. of writs , fol. . & . see maintenance . manworth ( sax. manwyrth ) the price or value of a mans life or head ; every man , according to his degree , being rated at a certain price , according whereunto , satisfaction was , of old made to his lord , for the killing him . marches ( marchia ) are the bounds and limits between us and wales , or between us and scotland . anno hen. . cap. . which last are divided into west and middle marches . anno hen. . cap. . and edw. . cap. . the word is used in the statute hen. . cap. . generally , for the precincts of the kings dominions ; and may be derived from the sax. meane , i. signum , nota , character . marchers , were the noblemen that lived on the marches of wales or scotland , who in times past ( according to camden ) had their private laws , like petty kings , which are now abolished by the statute hen. . cap. . of these marchers , you may read anno hen. . cap. . — hen. . cap. . and edw. . cap. . where they are called lord marchers . see also & ph. & ma. cap. . marchet ( marchetum ) consuetudo pecuniaria in mancipiorum filiabus maritandis . bract. lib. . tit . . cap. . num . . merchetum vero pro filia dare non competit libero homini . extenta manerii de wivenho , dec. edw. . & alia edw. . anno dom. . rich. burr tenet unum mesuagium — et debet tallagium , sectam curiae & merchet hoc modo , quod si maritare voluerit filiam suam cum quodam libero homine extra villam , faciet pacem domini pro maritagio , & si eam maritaverit alicui custumario villae , nil dabit pro maritagio . this custom is in divers parts of england and wales , as also in scotland , and the isle of gernsey . see spelman , at large on it . sir edward coke on littl. fol. . says it is called marchet , as it were a chete or fine for marriage . by the custom of the mannor of denever , in the county of carmarthen ( whereof sir edw. rice is lord ) every tenant at the marriage of his daughter , pays x s. to the lord , which in the british language is called gwabr merched , i. a maids fee. see meiden rents and gwabr-merched . mareshal ( marescallus , from the germ. marschalk , i. equitum magister ) with us there are divers officers of this name , the cheif is the earl marshal of england , mentioned anno hen. . cap. . and in divers other statutes ; his office consists especially in matters of war and arms , as well with us , as in other countreys ; as you may read in lupanus de magistratibus franciae , lib. . cap. marcshallus . the next is , the marshal of the kings house , whose special authority is ( according to britton ) in the kings place , to hear and determine all pleas of the crown , and sutes between those of the kings house , and others within the verge , and to punish faults committed within the verge , &c. cromp. jurisd . fol. . anno edw. . stat . . cap. . and other statutes see more of this office in fleta , lib. . cap. . there are other inferior officers of this name , as marshal of the justices in eyr . anno edw. . cap. . marshal of the kings bench ( anno edw. . cap. . ) who hath the custody of the prison , called the kings bench , in southwark . i finde also in fleta , lib. . cap. . mention of a marshal of the kings hall. there is also a marshal of the exchequer , anno hen. . stat . . to whom the court commits the custody of the kings debtors , for securing the debts . he also assigns sheriffs , customers , and collectors , their auditors , before whom they shall account . marshalsée ( maresealtia ) is the court or seat of the marshal ; also used for the prison in southwark , so called ; the reason whereof may be , because the marshal of the kings house , was wont perhaps to sit there in judgment , or keep his prison . see the stat. rich. . cap. . and hen. . cap. . mariage ( maritagium ) signifies not onely the lawful joyning of man and wife , but also the interest of bestowing a ward , or a widow in marriage . mag. char. cap. . and it signifies land given in marriage . bracton , lib. . cap. . & . see also skene on the word maritagium , which ( according to glanvil , lib. . cap. . ) is that portion which the husband receives with his wife . see dower . maritagio amisso per defaultam , is a writ for the tenant in frank-marriage , to recover lands , &c. whereof he is deforced by another . reg. fol. . maritagio forisfacto . see ferisfactura maritagii . mark ( merca , from the sax. mearc . i. signum ) in ancient time i finde a mark of gold was eight ounces . stows annals , pag. . a mark of silver is now well known to be s d. char. reg. joh. de dote b. reginae ( quondam ux . r. ricardi . paten . . joh. m. . n. . assignavimus ei pro dote sua mille marcas argenti annuatim , s , d. computatis pro marca . marketzeld ( recti●s marketgeld ) — et valent per an . le streteward & le marketzeld xviii s & ob . in omni terra pertinente ad honorem de haulton . ex cod. m. s. in bibl. cottoniana . it signifies toll of the market . the word zold importing a payment . i finde it elswhere written markethgald . plac. apud cestriam edw. . mark-peny , was one peny paid at maldon , by those who had pipes or gutters laid , or made out of their houses into the streets . hill. edw. . mr. philips of purveyance . market ( marcatus ) comes from the fr. marche , i. emporium , forum nundinarum , and signifies the same thing with us ; as also the liberty or priviledge whereby a town is enabled to keep a market . old nat. br. fol. . so bracton uses it , lib. . cap. . num . . & lib. . cap. . where he shews , that one market ought to be distant from another , sex leucas & dimidiam & tertiam partem dimidiae . by stat. hen. . cap. . no fair nor market is to be kept upon any sunday , nor upon the feasts of the ascension of our lord , corpus christi , the assumption of our blessed lady ; all saints , nor good friday ; except for necessary victual , and in the time of harvest . marle ( marla ) is a kinde of earth or mineral , which men , in divers parts of this realm , cast upon their land , to make it more fertile . it is otherwise called malin . anno edw. . cap. . marlerium or marletum , a marlepit . sciant — quod ego rogerus la zouche dedi — henrico de hugefort & haeredibus suis , &c. — et quod habeant omnem libertatem & liberam communiam in boscis , in planis , in viis , in semitis , in aquis , in molendinis , in bruariis , in turbariis , in quarrer . in piscar . in marleriis , & in omnibus aliis locis & aisiamentis ad praedictum manerium de tonge spectan . — et quod capiant marlam pro voluntate sua ad terram suam marlend . — reddendo inde annuatim mihi & haeredibus meis unum capellum rosarum die nativitatis s. jo. baptistae , si in villa de tonge fuerimus , si non ponatur super imaginem beatae mariae in ecclesia de tonge , pro omnibus servitiis — sine dat . penes wil. dugdale arm. and in another deed xx . acras terrae marlatas , marled lands . marque ( from the sax. mearc , i. signum ) signifies in our ancient statutes as much as reprisals ; as anno hen. . cap. . marques and reprisals are used as synonima , and letters of marque in the same signification . see reprisals . marquis or marquess ( marchio , qui regionis limitem incolit ) is a title of honor , next before an earl , and next after a duke . marchiones walliae , viz. rogerus de mortuo-mari , jacobus de audeley , rogerius de clifford , rogerius de leyburn , hamo extraneus & ille de turbervilla , cum pluribus aliis , qui de bello praedicto de lewes nuper fugerunt , &c. mat. westm . in anno . pag. . marshal . see mareshal . martial law , is the law that depends upon the just and arbitrary power , and pleasure of the king , or his lieutenant in time of wars , for , though the king does not , in time of peace , make any laws , but by consent of the three estates in parliament ; yet in wars , by reason of the great dangers rising from small occasions , he useth absolute power , in so much , as his word goes for law. smith de repub. angl. lib. . cap. . see law of arms. mast ( glans , pessona ) glandis nomine continentur glans castanea , faginr , ficus & nuces , & alia quaeque quae edi & pasci poterunt praeter herbam . bracton , lib. . . see pessona . master of the rolls ( magister rotulorum ) is an assistant to the lord chancellor of england , in the high court of chancery , and in his absence heareth causes there , and gives orders . crompt . jur. fol. . his title in his patent is , clericus parvae bagae , custos rotulorum ; as also , domus conversorum . because the place where the rolls of chancery are now kept , was anciently the house for habitation of those jews who were converted to christianity . but his office hath that title from the safe keeping of the rolls , of all patents and grants that pass the great seal , and of all records of the court of chancery , &c. he is called clerk of the rolls , anno rich. . cap. . and in fortescu , cap. . and no where master of the rolls until hen. . cap. . and yet cap. . ejusdem , he is also called clerk. in which respect sir tho. smith , lib. . cap. . says , he may not unfitly be called custos archivorum . he hath the bestowing of the offices of the six clerks , the clerks of the pettibag , examiners of the court , and the clerks of the chappel . anno & hen. . cap. . see roll. master of the mint ( anno hen. . cap. . ) is now called the warden of the mint , whose office is to receive the silver of the goldsmiths , and to pay them for it , and to oversee all the rest belonging to his function . master of the court of wards and liberies , was the cheif officer of that court , named and assigned by the king ; to whose custody , the seal of the court was committed , &c. anno hen. . cap. . but this court , with the officers , and appurtenances thereof , is abolished by car. . cap. . master of the horse , is he that hath the rule and charge of the kings stable , being an office of high account , and always bestowed upon some nobleman of great merit , and is mentioned anno eliz. cap. . and edw . cap. . this officer under the emperors of rome , was called comes sacri stabuli . master of the posts , was an officer of the kings court , who had the appointing , placing , and displacing of all such thorough england , as provided post-horses for the speedy passing of the kings messages , letters , pacquets , and other business ; and is mentioned anno edw. . cap. . but now by statute car. . cap. . one general letter office or post office is setled in london ; the master of which office , is appointed by the king , by letters patent , with rates and rules prescribed in the said act , for carrying subjects letters . master of the armory , is he that hath the care and over-sight of his majesties armor , and mentioned eliz. cap. . master of the jewel house , is an officer in the kings houshold , of great credit , having charge of all plate used for the king or queens table , or any great officer in court ; and of all plate remaining in the tower of london , of chains , and loose jewels , not fixed to any garment . anno eliz. cap. . master of the kings houshold ( magister hospitii regis ) is otherwise called grand master of the kings houshold , and is called lord steward of the kings most honorable houshold . anno hen. . cap. . but primo mariae , and ever since , he is called lord steward of the kings houshold ; under whom , there is a principal officer of the houshold , called the master of the houshold , of great authority as well as antiquity . master of the ordnance ( anno eliz. cap. . ) is a great officer , to whose care all the kings ordnance and artillery is committed . masters of the chancery ( magistri cancellariae ) are assistants in the chancery to the lord chancellor , or lord keeper , and master of the rolls . of these there are some ordinary , and some extraordinary ; of ordinary there are twelve , ( whereof the master of the rolls is accompted one ) whereof some sit in court every day throughout each term ; and have referred to them ( at the lord chancellors or master of the rolls discretion ) the interlocutory reports for stating accompts , computing damages , and the like ; taking of oaths , affidavits , and acknowledgments of deeds and recognisances . the extraordinary do act in all the countrey ten miles from london , by taking recognisances and affidavits , acknowledgments of deeds , &c. for the case of the subject . master of the kings musters , is a martial officer in all royal armies , most necessary , as well for the maintaining the forces compleat , wel-armed , and trained , as also for prevention of such frauds ; as otherwise may exceedingly waste the princes treasure , and extreamly weaken the forces , &c. mentioned edw. . cap. . and muster-master-general . anno eliz. cap. . master of the wardrobe , ( magister garderobae , ) is a great officer in court , having his habitation belonging to that office , called the wardrobe , near puddle-wharf in london . he has the charge and custody of all former kings and queens ancient robes , remaining in the tower ; and all hangings , bedding , &c. for the kings houses . he has also the charge , and delivery out of all velvet or scarlet allowed for liveries , &c. of this officer mention is made anno eliz. ca. . masura terrae , — sunt in eisdem masuris domus plus quam ante fuerunt . domesday . in fr. masure de terre , is a quantity of ground , containing about four oxgangs . matter in deed , and matter of record , differ thus , ( according to old. nat. br. fo . . ) the first seems to be nothing else , but some truth , or matter of fact to be proved , though not by any record . matter of record is that , which may be proved by some record . for example , if a man be sued to an exigent , during the time he was in the kings warrs , this is matter in deed , not of record : and therefore he that will allege this for himself , must come before the scire facias for execution be awarded against him ; for , after that , nothing will serve but matter of record , that is , some error in the process appearing upon the record . kitchin , fo . . makes also a difference between matter of record , and a specialty and nude matter , this being not of so high a nature , as either matter of record , or a specialty , otherwise there called matter in deed ; whereby it should seem , that nude matter is a naked allegation of a thing done , to be proved onely by witnesses , and not either by record , or specialty in writing under seal . cowel . maugre , being compounded of two french words , mal and gre. i. animo iniquo , signifies with us , as much as in despight , or in despight of ones teeth . as , the wife mauger the husband , ( littleton , fo . . ) that is , whether the husband will or no. maund , ( sax. mano , ) a kind of great basket , or hamper ( of books , or other merchandise , ) containing eight bales , or two fat 's . book of rat●s , fo . . maxims in law , are the foundations of it , or certain rules or positions , which are the conclusions of reason , and ought not at any time to be impeached or impugned . as , it is a maxim , that , if a man have issue , two sons by divers venters , and the one of them purchase lands in fee , and dye without issue , the other brother shall never be his heir , &c. see coke on litt. fo . . mayor , ( anciently meyr , from the british miret , . custodire , ) the chief magistrate of a city , as the lord mayor of london . rich. . ( anno ) changed the bailiff of london into a mayor . and , by that example , king iohn , anno , made the bailiff of kings-lin a mayor , whilst the famous city of norwich obtained not this title for her chief magistrate till hen. . . see more on this word in spelmans gloss . meale-rents , are certain rents still so called , but now payable in money by some tenants within the honor of clun , which heretofore were paid in meale , to make meat for the lords hounds . mean , ( medius , ) significes the middle between two extreams , and that either in time or dignity . example of the first ; his action was mean , betwixt the disseisin made to him and his recovery ; that is , in the interim . of the second , there is lord , mean or mesne , and tenant . lords mean , mentioned in the stat of amortizing lands , made tempore , ed. . see mesn . mease , ( mesuagium , fr. maison , ) a mesuage , or dwelling house . stat. hiberniae , hen. . and hen. . ca. . in some places corruptly called a mise , and mise-place . see mise and mese . measue . see mesne . meason due , ( fr. maison de dieu , ) a house of god ; a monastery or religious house . hospitals are also so called in the statutes , & phil. & mary , ca. . eliz. ca. . and car. . ca. . measure , ( mensura , ) according to the th cha. of mag. char. and the stat. car. . ca. . all weights and measures in this nation ought to be the same , and those too , according to the kings standard . see inst . fo . . & mensura . measurer . see alneger . — also that william norton , common meter of woollen cloth , may be sworn to occupy his office of measurage truly and indifferently upon pain , &c. articles exhibited to the lord mayor of london , &c. by the commons of the city , tempore , hen. . medfee , ( sax. medfeoh , ) the sax. dict. says , it is a bribe or reward ; bat , it also signifies that bote or compensation , which is given in an exchange , where the things exchanged are not of equal value : as in ed. . hugo de courtenay , made an exchange by deed with richard hanlake and joan his wife ; and there 't is expressd — quod ipsi non dabunt medfee , from the word meed , which signifies a reward . see arrura . medietas linguae , signifies an enquest empaner'd upon any cause , wherein a forreigner or stranger is party , whereof the one half consists of natives or denizens , the other strangers ; and is used in pleas , wherein the one party is a stranger , the other a denizen . see the stat. edw. . ca. . — ejusdem , stat. . ca. . and hen. . ca. . before the first of these statutes was made , this was wont to be obtained of the king by grant made to any company of strangers . stam pl. cor. lib. . ca. . and is called a party-jury , anno car. . ca. . medio acquietando , is a writ judicial , to distrain a lord , for the acquitting a mean lord from a rent , which another claims . reg. of writs judic . fo . . b. mediterranean sea , ( so called , because it has its course in the midst of the earth ) is that which stretcheth it self from west to east , dividing europe , asia and africa ; and mentioned car. . in the stat. of tonnage . medium tempus , was anciently used for the mean profits . as , annum , diem & medium tempus . see flem. medlefe , is that which bracton , ( lib. . tract . . ca. . ) calls medletum , and signifies quarrelling , scuffling , or brawling . culpa dicitur , quam quis inopinate commiserit non rixando solum & pugnando , sed immiscendo se pacifice rei cuivis vel negotio , says spelman . hence our common phrase , to meddle with other folks maters . meer , ( merus ) though an adjective , yet is it used substantively , for meer right . old nat. br. fo . . to joyn the mise upon the meer . see mise . meg-bote . see magbote . meld-feoh , ( sax. ) the reward and recompence due , and given to him that made the discovery of any breach of penal laws committed by another : the promoter , or informers fee. sax. dict. meliores . see tales . meiny , ( menagium . fr. mesnie , ) as the kings meiny , anno rich. . ca. . ) . the kings family , houshold , or houshold-servants . melius inquirendo , is a writ that lay for a second enquiry , of what lands or tenements a man dyed seized , where partial dealing was suspected upon the writ diem clausit extremum . fitz. nat. br. fo . . memories , are used for certain obsequies , or remmebrances for the dead , in injunctions to the clergy , edw. . menials , ( from moenia , the walls of a castle , or other building , ) are houshold or menial servants ; that is , such as live under their lord or masters roof , or within his walls , mentioned anno hen. . ca. . mensura , hoc est , quod prior habet mensuras tam aridorum quam liquidorum signatas signo domini regis , & quod nullus debet emere in foro seu vendere , nisi per illas . ex registro priorat . de cokesford . mensura bladi , a bushel of corne. mensura regalis , the kings standard of the exchequer . anno car. . ca. . see measure . merchenlage , ( sax. marcna laga . i. merciorum lex , ) camb. in his brit. pa. . sheweth , that , in the year , this land was divided into three parts ; whereof the west-saxons had one , governing it by the lawes called west-saxon lawes , which contained these nine shires , kent , southsex , southrey , berks , hampshire , wilts , somerset , dorset , and devon. the second by the danes , which was govern'd by the laws called denelage , or danelage , and that contained these fifteen shires , york , darby , nottingham , leicester , lincoln , northampton , bedford , bucks , hartford , essex , middlesex , northfolk , suffolk , cambridge and huntington . the third was governed by the mercians , whose law was called merchenlage , comprehending these eight , glocester , worcester , hereford , warwick , oxenford , chester , salop , and stafford . out of which three william the conqueror chose the best , and , to them , adding such of the norman laws as he thought good , he ordained laws for this kingdom , some of which we have to this day , and are called the common laws . mercimoniatus angliae , was anciently used for the custom or impost of england . mercy , ( misericordia , ) signifies the arbitrement , or discretion of the king , lord or judge , in punishing any offence , not directly censured by the law. as , to be in the grievous mercy of the king , ( anno hen. . ca. . ) is to be in hazard of a great fine or penalty . see misericordia . mertlage , seems to be a corruption of , or a law french word , for martyrologe . vide hen. . fo . . b. mese , ( from the gr. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . i. medium , ) of he●●ings is , the half of a thousand . mesne or measn , ( medius , fr. maisne , ) signifies him , that is lord of a mannor , and has tenants holding of him , yet holds himself of a superior lord : and therefore it seems to be properly derived from the fr. maisne . i. minor natu ; because his tenure is derived from another , from whom he holds . mesn also signifies a writ , which lies where there is lord , mesn and tenant ; the tenant holding of the mesn , by the same services , whereby the mesn holdeth of the lord , and the tenant of the mesn is distrained by the superior lord , for that his service or rent , which is due to the mesn . fitz. nat. br. fo . . see edw. . ca. . mesnalty , ( medictas , fr. maisnete . i. youngership , ) signifies the right , or condition of the mesn ; as , the mesnalty is extinct . old. nat. br. fo . . and kitchin , fo . . medietate tenentur feuda , quando aliqua persona intervenerit inter dominum & tenentes , et hoc modo tenent omnes postnati , mediante ante nato . custumary of normandy . messarius , a mower , or harvester . fleta , lib. . ca. . messenger of the exchequer , is an officer , of which sort there are four in that court , who are pursuivants attending the lord treasurer , to carry his letters and precepts . see pursuivant . message , ( messuagium , ) a dwelling house , ( honestius est habitaculum cum aliquo fundi adjacentis in ejusdem usum deputati . ) but , by that name may also pass a curtilage , a garden , an orchard , a dovehouse , a shop , a mill , a cottage , a toft , as parcel of a messuage . bracten , lib. . ca. . plowden , fo . . . yet they may be demanded by their single names . messuagium in scotland signifies , ( according to skene , ) the principal house , or dwelling place within a mannor , which we call the mannor-house , and some , the scite . a praecipe lies not de domo , but de messuagio , coke on litt. ca. . mestilo , onis . mesline , muncorne , wheat and rie mingled together . — & nonam garbam frumenti , mestilonis , siliginis & omnis generis bladi . pat. edw. . par. . m. . metegabel , ( sax. ) cibariorum vectigal , a tribute , or rent paid in victuals ; a thing usual of old , as well with the kings tenants , as others , till henry the firsts time , who chang'd it into money . sax. dict. metheglin , ( british , meddiglin , ) a kind of drink made of wort , hearbs , spice and hony boyld together , most used in wales ; mentioned in the act for excise , car. . ca. . michis , — a sort of white loaves , paid as a rent in some mannors . extenta de wivenho , in dorso , will. lambe . — capient de praedicto priore pro qualibet waya cirporum tres albos panes , vocatos michis , & nigrum panem & alia cibaria . milde ( anno jac. ca. . ) a kind of canvas , whereof sail-clothes , and other furniture for ships are made . mile , ( milliare , ) is the distance of one thousand paces , otherwise described to contain eight furlongs , and every furlong to contain forty lugs or poles , and every pole foot and a half . anno eliz. ca. . militia , ( lat. ) the implements and furniture for warr , mentioned car. . ca. . milleate , ( anno jac. ca. . ) a trench to convey water to or from a mill : rectius , a mill. leat . an unusual word in conveyances in devonshire . mineral courts , ( curiae minerales , ) are particular courts for regulating the affairs of lead mines , as stannery courts are for tyn. miniments , or muniments , ( munimenta , from munio , to defend , ) are the evidences or writings , whereby a man is enabled to defend the title of his estate . an. . rich. . ca. . and hen. . fo . . b. wangford sayes this word muniment includes all manner of evidences . see muniment house . ministri regis , extend to the judges of the realm , as well as to those that have ministerial offices . inst . fo . . minobery , ( anno r. . ca. . ) seems to be compounded of the french main . i. manus and ouvrer . i. operari ; and to signifie some trespass or offence committed by a mans handy work in the forest ; as an engin to catch deer . briton . ( ca. . ) uses the verb meinoverer , to manure lands ; and ca. . main-ovre , for handy work . minstrell , ( minstrellus & menestrallus , from the french menestrel , ) a fidler or piper ; mentioned hen. . ca. . lit. pat. april edw. . — quod mariscalli & minstrelli predicti per se forent & esse deberent unum corpus & una communitas perpetua , &c. upon a quo warranto hen. . laurentius dominus de dutton clamat , quod omnes ministrelli infra civitatem cestriae & infra cestriam manentes , vel officia ibidem exercentes debent convenire coram ipso vel senescallo suo apud cestriam , ad festum nativitatis s. johannis baptistae annuatim , & dabunt sibi ad dictum festum quatuor lagenas vini & unam lanceam ; & in super quilibet corum dabit sibi quatuor denarios & unum obolum ad dictum festum , & habere de qualibet meretrice infra comitatum cestriae , & infra cestriam manente , & officium suum exercente quatuor denarios per annum ad festum praedictum , &c. see king of the minstrels . mint , is the place where the kings coin is formed , be it gold or silver , which now is , and long has been the tower of london : though it appear by divers statutes , that in ancient times the mint has also been at caleis , and other places . anno r. . ca. . and hen. . stat. . ca. . the particular officers belonging to the mint , see in cowels interpreter , verbo , mint . minute tythes , ( minutae sive minores decima , ) small tythes , such as usually belong to the viccar , as of herbs , seeds , eggs , honey , wax , &c. see part inst . fo . . and udal & tindals case . hill. jac. where the tyth of woad was adjudged to be minuta decima . part crokes rep. fo . . see tithes . misaventure , or misadventure , ( fr. mesadventure , i. infortunium , ) has an especial signification for the killing a man , partly by negligence , and partly by chance . as if one , thinking no harm , carelesly throwes a stone , or shoots an arrow , wherewith he kills another . in this case he commits not felony , but onely loseth his goods , and has a pardon of course for his life . stam. pl. cor. lib. . ca. . britton , ca. . distinguishes between aventure and misavonture ; the first he makes to be meer chance , as if a man , being upon , or near the water , be taken with some sudden sickness , and so fall in , and is drowned , or into the fire , and is burnt . misaventure he says is , where a man comes to his death by some outward violence , as the fall of a tree , the running of a cart-wheel , the stroke of a horse , or such like . so that misadventure in stamfords opinion , is construed somewhat more largely then britton understands it . west . part . symbol . tit . inditement . sect. , & . makes homicide casual to be , meerly casual or mixt . homicide by meer chance , he defines to be , when a man is slain by meer fortune , against the mind of the killer , as if one hewing , the axe flies off the haft and kills a man ; and this is al one with brittons misaventure . homicide by chance mix'd , he defines ( sect. . ) to be , when the killers ignorance or negligence is joyned with the chance ; as if a man lop trees by a high-way side , in which many usually travel , and cast down a bough , not giving warning , &c. by which bough a man is slain . miscognisant , ignorant or not knowing . in the stat. hen. . ca. . against champertie and maintenance ; it is ordained that the justices of assise shall twice in the year in every county cause open proclamation to be made of this present act , and of every thing therein contained , &c. to the intent , that no person should be ignorant or miscognisant of the dangers and penalties therein contained . miscontinuance , ( kitchin , fo . . ) the same with discontinuance , which see . mise , ( a french word , signifying expence , or disbursement : sometimes written missum in lat. and sometimes misa , ) has divers significations ; first , it is a kind of honourable gift , or customary present , with which the people of wales are wont to salute every new king and prince of wales , at their entrance into that principality . it was anciently given in cattel , wine and corn , for sustentation of the princes family ; but , when that dominion was annexed to the english crown , the gift was changed into money , and the summ is l. sterling , or more ; and it hapned to be thrice paid in king james's reign , first , at his own coming to the crown , and that principality . secondly , when prince henry was created prince of wales . and thirdly , when king charles the first succeeded him in that principality . anno hen. . ca. . it is ordained , that lords mayors shall have all such mises and profits of their lands , as they have had in times past , &c. misae etiam dicuntur praestationes illae quas ob fruendas pristinas immunitates cestriae palatinatus subditi novo cuique comiti impendunt , i. marks for that county . sometimes mises are taken for taxes , or tallages . anno edw. . ca. . sometimes for costs or expences , as pro misis & custagiis , for costs and charges in the entries of judgments in personal actions . mise is also a word of art , appropriated to a writ of right , so called , because both parties have put themselves upon the meer right , to be tryed by the grand assise , or by battel ; so as that which in all other actions is called an issue , in a writ of right in that case is called a mise . but , in a writ of right , if a collateral point be tryed , there it is called an issue ; and is derived from missum , because the whole cause is put upon this point . coke on litt. fol. . b. anno ed. . ca. . to joyn the mise upon the meer , is as much as to say , to joyn the mise upon the cleer right , and that more plainly , to joyn upon this point , whether has the more right , the tenant or demandant . mise is sometimes used as a participle , for cast or put upon . cokes rep. saffins case ; and sometimes corruptly for mease , a messuage , or tenement : as a mise-place in some mannors is taken to be such a messuage or tenement as answers the lord a herriot at the death of its owner . inst . fo . . which , in our french , is written mees . ceste endenture temoigne que come will. terrye de dounham tiegne de johan de veer coonte d'oxenford un mees & sys acres de terre , &c. dat . ed. . penes wil. andrew , baronet . miserere , is the name and first word of one of the paenitential psalmes , most commonly that which the ordinary gives to such guilty malefactors , as have the benefit of the clergy allowed by law ; and it is usually called the psalm of mercy . misericordia , is used for an arbitrary amerciament or punishment imposed on any person for an offence . for where the plaintiff or defendant in any action is amerced , the entry is always — ideo in misericordia , &c. and it is called misericordia ( as fitzherbert says , nat. br. fol. . ) for that it ought to be but small , and less then the offence , according to the tenor of magna charta , cap. . therefore , if a man be unreasonably amerced in a court , not of record , as in a court baron , &c. there is a writ called moderata misericordia directed to the lord , or his bailiff , commanding them , that they take moderate amerciaments , according to the quality of the fault . est enim misericordia domini regis ( says glanvile ) quà quis per juramentum legalium hominum de viceneto , eatenus amerciandus est , ne aliquid de suo honorabili contenemento amittat . and again , mulcta lenior sic dicta , quòd lenissima imponitur misericordia ; graviores enim mulctas fines vocant , atrocissimas , redemptiones . see glanv . pag. . a. and see moderata misericordia . — he shall be in the great mercy of the king. westm . . cap. . misfeasans , misdoings or trespasses . — jury to enquire of all purprestures & misfeasans . part croke , fol. . and misfeasor , a trespasser . inst . fol. . mishering , est de estre quit de amerciemenz pur quereles en aucun courts devant qui que il seyt , nent ordinament ou proprement demonstre . ms. ll. temp. e. . see abishersing and miskering . miskenning ( meskenninga , ll. hen. . cap. . ) iniqua vel injusta in jus vocatio ; inconstanter loqui in curia , vel invariare . — renovamus etiam & confirmamus privilegia antiquorum regum , atque ob reverentiam dominae nostrae perpetuae virginis mariae sanctique benedicti , sanctarumque virginum , omnibusque futuris ibidem abbatibus in tota possèssione monasterii , sacham & socham theloneumque suum in terra & in aqua concedo , & consuetudines , ut ab omnibus apertius & plenius intelligantur , anglice scriptas , scilicet , mundbriche , feardwite , firwite , blodewite , mistzeninge , frithsoke , hamsockne , forstall , forphange , theifphange , hangwite , frithbriche , utlepe , infongenthefe , supbriche , tol & tem , aliassque omnes leges & consuetudines quae ad me pertinent , tam plene & tam libere , sicut eas in manu mea habebam . confirm . fundationis monast . de ramsey per s. edw. conf. mon. angl. par . fo . . miskering , hoc est quietus pro querelis coram quibuscunque in transumptione probata . ms. ll. rob. cot. pa. . see mishering . misnomer , ( compounded of the fr. mes , which in composition alwayes signifies amisse , and nomer , i. nominare , ) the using one name for another , a mis-terming , or mis-naming . misprision , ( fr. mespris . i. contempt , or neglect , ) signifies a neglect , negligence , or oversight ; as misprision of treason , or felony is a neglect , or light account made of treason or felony committed , by not revealing it , when we know of it . stam. pl. cor. lib. . cap. . or by suffering any person , committed for treason or felony , or suspition of either , to go before he be indited . misprision of clerks , ( anno hen. . ca. . ) is a neglect of clerks , in writing or keeping records . by misprision of clerks no process shall be adnulled or discontinued . edw. . ca. . stat. . for misprision of treason , the offenders are to suffer imprisonment during the kings pleasure , lose their goods and the profits of their lands during their lives . misprision of felony is onely finable by the justices , before whom the party is attainted . cromp. i. of peace , fo . . other faults may be accounted misprisions of treason , or felony , because later statutes have inflicted that punishment upon them , whereof you have an example , anno eliz. ca. . of such as coyn forrain coyns , not currant in this realm , and their procurers , aiders and abettors . misprision also signifies a mistaking , anno ed. . stat. . ca. . v. inst . fo . , and . mis-trial , a false or erroneous trial. crokes rep. part. fo . . delves case . mis-user , is an abuse of liberty , or benefit ; as , he shall make fine for his misuser . old. nat. br. fo . . mitta , ( sax. ) mensura decem modiorum . ms. in wich . salina redd . mittas salis . domesday , tit . wirec . scire . ego wulfrun , ( uxor anketelli ) singulis annis vitae meae ad festum s. benedicti , quod est in aestate , decem mittas de brasio & quinque de gruto & quinque mittas farinae triticiae & pernas & caseos & duas vaccas pingues de terra mea hicheling pro respectu annuo eidem ecclesiae , ( ramesiensi ) procurari decerno . lib. rames . sect. . — praeterea concessi eis septem mittas salis quolibet anno percipiendas apud wiz . mon. angl. par. so . . b. mittendo manuscriptum pedis finis , is a writ judicial , directed to the treasurer and chamberlains of the exchequer , to search and transmit the foot of a fine , acknowledged before justices in eyre , into the common-pleas , &c. reg. of writs , fo . . mittimus , is a writ by which records are transmitted from one court to another , as appears by the stat. of rich. . ca. . as out of the kings bench into the exhhequer ; and sometimes by a certiorari into the chancery , and from thence by a mittimus into another court , as you may see in hen. . dyer , fo . . and hen. . dyer , fo . . mittimus also signifies the precept that is directed by a justice of peace to a jaylor , for the receiving and safe keeping a felon , or other offender , committed by the said justice . see table of reg. of writs , for other uses and applications of this word . mixt tithes , ( decimae mixtae , ) are those of cheese , milk , &c. and of the young of beasts . see cokes part inst . fo . . and see tithe . mockadoes , ( anno eliz. ca. . ) a kind of stuff made in england , and elsewhere . moderata misericordia , is a writ that lies for him who is amer●●d in a court-baron , or other court not of record , for any transgression or offence beyond the quality of the fault . it is directed to the lord of the court or his bailiff , commanding them to take a moderate amerciament of the party , and is founded upon magna charta , ca. . quod nullus liber homo amercietur , nisi secundum qualitatem delicti , &c. the rest touching this writ see in fitz. nat. br. fo . . see misericordia . modo & forma , are words of art in pleadings , namely in the answer of the defendant , whereby he denies to have done the thing laid to his charge , modo & forma declarata . kitchin , fo . . the civilians in like case , say , negat allegata , prout allegantur , esse vera . where modo & forma are of the substance of the issue , and where but words of course , see coke on litt. fo . . b. modus decimandi , is either , when land , or a yearly pension , summ of money , or other profit belong to the parson , viccar , &c. by composition or custom , in satisfaction of tithes in kind . ms. penes auth. see inst . fo . . molendinum bladonicum , a corn-mill ; for which in ancient charters we also find molendinum bladum & molendinum de blado . so a fulling-mill is thus variously latin'd in re-records , molendinum fullonicum , mol. fullanicum , mol. fullere , mol. fullarium & mol de fulelez . a windmill , molendinum ad ventum , & venti ; molendinum ventriticum , & ventricium . a water-mill , molendinum aquaticum & aquatilium . a horse-mill , molendinum equitium . a grinding , or griest-mill , molendinum molare . ex cartis & record . in mon. angl. molman . prior. lewens . pa. . — omnis lanceta , omnis toftman & omnis molman ( qui non sedet super ogeland ) debent spergere unam reiam de fiens , &c. i. unam strigam vel tractum stercoris , a rew of muck . molasses , ( anno car. . ca. . ) is the refuse sirrop in the boiling of sugar ; with which ( by the said statute ) wine is prohibited to be mingled , or adulterated . monetagium , jus & artificium cudendi monetas . moniers , or moneyors , ( monetarii ) ministers of the mint , which make coin , and deliver out the kings moneys . anno edw. . ca. . reg. of writs , fo . . it appears that in ancient time our kings of england had mints in most of the counties of this realm ; and in the tractate of the exchequer , written by ockham , we find , that , whereas sheriffs ordinarily were ty'd to pay into the exchequer the kings sterling-money , for such debts , as they were to answer , they of northumberland and cumberland were at liberty to pay in any sort of money , so it were silver ; and the reason is there given , because those two shires , monetarios de antiqua institutione non habent . moneyers are now also taken for banquers , or those that make it their trade to turn and return money . monger , seems to be a little sea-vessel , which fishermen use , anno eliz. ca. . monopoly , ( from the gr. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , unus & 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 vendo , ) is an institution , or allowance of the king by his grant , commission , or otherwise to any person or persons , of , or for the sole buying , selling , making , working , or using of any thing , whereby any person or persons are restrained of any freedom or liberty that they had before , or hindred in their lawful trade ; which is declared illegal by jac. ca. . except in some particular cases , which see in inst . fo . . monstrans de droit , ( i. shewing of ones right ) signifies a writ issuing out of the chancery to be restored to lands or tenements , that indeed are mine in right , though , by some office , found to be in possession of one lately dead . see stamf. praer . ca. . at large , and cokes rep. lib. . fo . . wardens of the sadlers case . monstraverunt , is a writ that lies for tenants that hold freely by charter in ancient demaine , being distreined for the payment of any toll or imposition , contrary to the liberty , which they do , or should enjoy . fitz. nat. br. fo . . month , or moneth , ( sax. monath , ) shall be understood to consist of dayes . see coke , lib. . fo . . b. and see kalendermoneth . moot , ( from the sax. motian , to treat , or handle ) is well understood at the inns of court , to be that exercise , or arguing of cases , which young barrasters and students perform , at certain times , for the better enabling them for practise , and defence of clients causes . the place where moot-cases were argued , was anciently called a moot-hall , from the sax. motheal . in the inns of court there is a bailiff , or surveyor of the moots , who is yearly chosen by the bench , to appoint the m●otmen for the inns of chancery , and to keep accompt of performance of exercises both there and in the house . see orig. juridiciales , fo . . mootmen , are those that argue readers cases , ( called also moot-cases ) in the houses of chancery , both in terms and in vacations . cokes rep. part in proaemio . moratur , or demoratur in lege , signifies as much as he demurrs ; because the party goes not forward in pleading , but rests or abides upon the judgment of the court in the point , who deliberate , and take time to argue , and advise thereupon . whensoever the counsel learned of the party is of opinion , that the count or plea of the adverse party is insufficient in law ; then he demurrs or abides in law , and refers the same to the judgment of the court. coke on lit. fo . . b. see demurrer . moriam , is all one in signification with the french morion , i. cassis , a headpiece , and that from the italian morione . anno & phil. & mary , ca. . now called a pot. morling alias mortling , signifies that wool which is taken from the skin of a dead sheep , whether dying of the rot , or being killed . anno edw. . cap. . & . and hen. cap. . this is written morkin , anno jac. cap. . morling or shorling , anno edw. . cap. . & car. . cap. . see shorling . mortdancester . see assize . mortgage ( mortuum vadium vel mortgagium ) from the french mort , i. mors ; and gage , i. pignus ) signifies a pawn of land or tenement , or any moveable thing , laid or bound for money borrowed , peremptorily to be the creditors for ever , if the money be not paid at the day agreed on . and the creditor , holding such land on such agreement , is in the mean time called tenant in mortgage . glanvile ( lib. . cap. . ) defines it thus , mortuum vadium dicitur illud , cujus fructus vel reditus interim percepti in nullo se acquietant . thus it is called a dead gage , because whatsoever profit it yields , yet it redeems not it self by yielding such profit , except the whole sum borrowed be likewise paid at the day , the morgagee by covenant being to receive the profits , till default of payment . he that lays this pawn or gage , is called the morgager , and he that takes it , the morgagee . this , if it contain excessive usury , is prohibited anno hen. . cap. . mortmain ( manus mortua , i. dead hand . from the. fr. mort , i. mors , and main , i. hand ) signifies an alienation of lands or tenements to any corporation , guild , or fraternity , and their successors , as bishops , parsons , viccars , &c. which may not be done without licence of the king , and the lord of the mannor , or of the king alone , if it be immediately holden of him . the reason of the name proceeds from this , that the services and other profits due for such lands , should not , without such licence come into a dead hand , or into such a hand , as it were dead , and so dedicate unto god , or pious uses , as to be abstractedly different from other lands , tenements , or hereditaments , and is never to revert to the donor or any temporal or common use . mag. charta , cap. . and edw. . commonly called the statute of mortmain . edw. . stat . . cap. . and rich. . cap. . which statutes are something abridged by anno eliz. cap. . whereby the gift of land , &c. to hospitals , is permitted without obtaining of licences of mortmain . hottoman in his commentaries de verbis feudal . verbo manus mortua , says thus . manus mortua locutio est , quae usurpatur de iis quorum possessio , ut ita dicam , immortalis est , quia nunquam haeredem habere desinunt . qua de causa res nunquam ad priorem dominum revertitur ; nam manus pro possessione dicitur , mortua pro immortali , &c. and skene says , that dimittere terras ad manum mortuam , est idem atque dimittere ad multitudinem sive universitatem , quae nunquam moritur . the president and governors for the poor within the cities of london and westminster , may without licence in mortmain , purchase lands , &c. not exceeding the yearly value of l , &c. stat. . car. . cap. . mortuary ( mortuarium ) is a gift left by a man at his death , to his parish church , in recompence of his personal tythes and offerings , not duly paid in his life time . a mortuary is not properly and originally due to an ecclesiastical incumbent from any , but those onely of his own parish , to whom he ministers spiritual instruction , and hath right to their tythes . but by custom in some places of this kingdom , they are paid to the incumbent of other parishes , in the corps of the dead bodies passage through them . see the statute hen. . cap. . before which statute mortuaries were payable in beasts . mortuarium ( says lindwood ) sic dictum , est quia relinquitur ecclesiae pro anima defuncti . custom in tract of time , did so far prevail , as that mortuaries being held as due debts , the payment of them was enjoyned , as well by the statute de circumpectè agatis , in edw. . as by several constitutions , &c. a mortuary was anciently called a cors-present , ( because the beast was presented with the body at the funeral ) and sometimes a principal . of which see a learned discourse in mr. dugdales antiquities of warwickshire . fol. . and see seldens history of tythes , pag. . there is no mortuary due by law , but by custom . part inst . fol. . see spel. de concil . tom. . fol. . moss-troopers , are a rebellious sort of malefactors in the north of england , that live by robbery and rapine ; not unlike the tories of ireland , or banditi in italy , for suppression of whom , the statutes jac. cap. . — jac. cap. . and car. . cap. . were made . mote ( mota ) sax. gemote ) a court , plea , or convention . as mota de hereford , i. curia vel placita comitatus de hereford . charta matildis imperatricis filiae regis hen. . — sciatis me fecisse milonem de glocestre , comitem de hereford & dedisse ei motam herefordiae cum toto castello in feudo & hereditate . of this there were several kindes , as wittenagemot , folcgemot , sciregemot , hundredgemot , burgemote , wardegemote , haligemot , swainegemot , &c. hence to mote or moot , i. to plead , and in scotland they call it to mute , as the mute hill at scone , i. mons placiti de scona . but we now most commonly apply the word moot , to that practise of pleading and arguing cases , which young students use in the inns of court and chancery . mota was sometimes used of old for a fortress or castle , as turris de london & mota de windsor — charta pacis inter stephanum regem & hen. ducem postea regem . see moot . mote , does also signifie a standing water to keep fish in , or a great ditch of water encompassing a castle or dwelling house . — hec indentura facta inter rogerum grene clericum ex parte una & thomam horeworde clericum ex parte altera , testatur , quod praedictus rogerus tradidit prefato thomae tria stagna & unam motam piscariam existen . infra manerium domini de yeffyn habend . & tenend . predicta tria flagna & predictam motam cum tota piscatione in eisdem & cum incremento piscium in eisdem cum libero ingressu & egressu , &c. dat. febr. edw. . muchehunt . — habeant hi quatuor unam regalem potestatem , ( salva semper nobis nostra praesentia ) quaterque in anno generales forestae demonstrationes & viridis & veneris forisfactiones , quas muchehunt dicunt , &c. const . canuti de foresta , cap. . mulier ( as used in our laws , seems to be corrupted from melior , or the fr. melieur ) signifies the lawful issue , preferred before an elder brother born out of matrimony . anno hen. . cap. . smith de republ. angl. lib. . cap. . but by glanvile , lib. . cap. . the lawful issue seems rather mulier , then melier , because begotten e muliere , and not ex concubina , for he calls such issue filios mulieratos , opposing them to bastards . and britton , cap. . hath frere mulier , i. the brother begotten of the wife , opposite to frere bastard . this seems to be used in scotland also : for skene says , mulieratus filius is a lawful son , begotten of a lawful wife . a man hath a son by a woman before marriage , which is a bastard and unlawful , and after he marries the mother of the bastard , and they have another son , this second son is called mulier , and is lawful , and shall be heir to his father : you shall always finde them with this addition , when compared , bastard eigne & mulier puisne . see coke on littl. fol. b. & b. mulier also , was anciently used as an addition ; as , omnibus — domina johanna de foresta , mulier , salutem . noverit universitas vestra quod , &c. dat . regis edw. filii edw. ex autographo penes authorem . by this it was doubted whether mulier signify'd a wife , or a woman born in lawful wedlock . but the following deed clearly shewes it the former , and is conform to what sir edw. coke says , inst . fo . . that , of ancient time , mulier was taken for a wife . elizabetha grendon filia & haeres legitima domini hamonis peshal mil. dum vixit & aliciae uxoris suae quondam roberti harley & johannae uxoris ejusdem roberti , filii & haeredis quondam roberti harley mil. & margaretae uxoris suae pars appellans & actrix ex parte una , & johanna harley mulier pars appellata & rea ex altera . eadem johanna harley per officialem diocesis middlesex , occasione frigiditatis sive impotentiae naturalis roberti mariti sui coeund . sive eam carnaliter cognoscend . mota , ab eodem roberto separata fuit . et nunc , ex supplicatione praefatae elizabethae grendon , ea separatio cassatur & annullatur , & matrimonium inter eos solidum & firmum fuisse declaratur per instrumentum publicum . dat. anno . ex ms. penes will. dugdale ar. muliertie , or mulerie , ( coke on litt. fo . . b. ) the being , or condition of a mulier , or lawful issue . fait a remembre que osbart parles engendra reynald de asseles en bastardie ; le quele osbart enfeffa le dit reynald en fee en tote son tenement de asseles , a lui & a ses heires a toutz jours : le quele reynald engendra simon de asseles en muleric , le quele simon engendra aliue , agnes & margerie en muleric . ms. penes will. dugdale ar. multa , or multura episcopi , is derived a mulcta ; for that it was a fine , or final satisfaction given the king , that they might have power to make their last wills and testaments , and to have the probat of other mens , and the granting administrations . see inst . fo . multiplication , ( multiplicatio ) multiplying , or augmenting . it is ordained and established , that none from henceforth shall use to multiply gold or silver , nor use the craft of multiplication , and if any the same do , he shall incur the pain of felony . anno hen. . ca. . which statute was made upon a presumption that some persons skilful in chimistry , could multiply or augment those mettals , by elixir or other ingredients , and change other metals into very gold or silver . for , letters patents were granted by henry the sixth to certain persons , ( who undertook to perform the same , and to find out the philosophers stone ) to free them from the penalty in the said stat. rot. pat. hen. . in . . coke . inst . fo . . multitude , ( multitudo ) must , ( according to some authors ) be ten persons or more ; but sir edward coke says , he could never read it restrained by the common law to any certain number , but left to the discretion of the judges . on litt. fo . . a multo fortiori , or a minore ad maius , is an argument often used by littleton , 〈◊〉 force of it thus , — if it be so in a feoffment , passing a new right , much more is it for the restitution of an ancient right , &c. coke on litt. fo . . a. and . a. multure , ( molitura vel multura ) signifies the toll that the miller takes for grinding corn. — et totam sequelam custumariorum meorum qui ad dictum molendinum bladum suum molent , ad sextum decimum vas , & braseum suum sine multura . mon angl. p. fo . . a. — and if that will grynd at his milne , to grend at xxiiii vessel . and for their malt neght giue multer , &c. an award dat . hen. . mundbrech , ( sax. mund. i. munitio , defensio , & brice . fractio vel violatio . ) si rex ecclesiam , monasterium , burgum , hominem aliquem vel societatem , eorumve res aut praedia in suam susceperat protectionem , dicebatur hoc omne & ejusmodi quicquicd in regis esse mundio , saxonice on cyningesmunde , cujus violatio etiam mundbrice dicta est . q. protectionis violatio , aut datae pacis fractio , quae in anglorum lege libris plectebatur . spelm. but mundbrech is expounded in late times clausarum fractionem , a breach of mounds , by which name ditches and fences are still called in some parts of england . mundeburde , ( mundeburdium , from the sax. mund. i. tutela : and bord vel borh . i. fidejussor . ) defensionis vel patrócinii fidejussio & stipulatio . muniments , ( munimenta , ) mat. paris , fo . episcopus itaque cum munimentorum inspectionem habere non potuit . scripta scilicet authentica , chartae donationum & evidentiae . see miniments . munimenthouse , ( munimen ) in cathedral and collegiate churches , castles , colleges , or such like , is a house , or little room of strength purposely made for keeping , the seal , evidences , charters , &c. of such church , colledge , &c. such evidences being called muniments , corruptly miniments , from munio , to defend ; because inheritances and possessions are defended by them . part inst . fo . . murage , ( muragium , anno ed. . ca. . ) is a reasonable toll , to be taken of every cart , or horse , coming laden into a city or town , for the building or repairing the walls of it , for the safeguard of the people , and is due either by grant or prescription . cokes part inst . fo . . murder , ( murdrum , from the sax. morther , or british murndwrn . fr. meurtre . i. internecio ) is a wilful and felonious killing another upon prepensed malice , whether secretly or openly , english man , or forreiner , living under the kings protection . hen. . ca. . — ed. . ca. . prepensed malice is either express or imply'd ; express , when it may be evidently proved , there was formerly some ill will : implyed , when one kills another suddenly , having nothing to defend himself , as going over a style , or such like . cromp. just . of p. ca. of murder , fo . . per parol de murder en grants , le grantee clama de aver amerciaments de murderes . broke tit . quo warrant . . murengers , are two ancient officers in the city of chester , of as great antiquity as any other in that city , being two of the principal aldermen , yearly elected , to see the walls kept in good repair , and who receive certain tolls and customs for maintenance thereof . muster , ( from the fr. moustre . i. specimen , exemplum , as faire moustre generale de toute son armic , is as much as lustrare exercitum ) the signification is well known . mustred of record , ( anno hen. . ca. . ) is to be enrolled in the number of the kings souldiers . master of the kings musters . see in master . muster-master-general , ( anno eliz. ca. . ) see master of the kings musters . mute , ( mutus ) that speaks not ; dumb , speechless . — a prisoner may stand mute two manner of wayes . . when he speaks not at all , and then it shall be enquired , whether he stood mute of malice , or by the act of god ; if by the later , then the judge ex officio ought to enquire , whether he be the same person , and of all other pleas , which he might have pleaded , if he had not stood mute . . when he pleads not-guilty , or does not directly answer , or will not put himself upon the enquest to be tryed . coke part inst . ca. . anno hen. . ca. . see pain fort & dure . n. naam , ( namium ) ( from the sax. naeme . i. captio ) signifies the taking or apprehending another mans moveable goods , and is either lawful or unlawful : lawful naam is a reasonable distress proportionable to the value of the thing distreined for ; and this naam was anciently called either vif or mort , quick or dead , according as it is made of dead or quick chattels . lawful naam is so either by the common-law , as when one takes another mans beasts damage feasant in his grounds ; or by a mans particular fact , as by reason of some contract made , that for default of payment of an annuity , it shall be lawful to distrain in such or such lands , &c. horns mirror of justices . lib. . ca. de naam . see withernam . non libebit namium sumere vel vadimonium , nec averia sua imparchiare . mon. angl. par. fo . . b. nemo namium capiat in comitatu vel extra comitatum , priusquam ter in hundredo suo rectum sibi perquisierit . ll. canuti ms. ca. . quae inscribitur de namiis capiendis , quod si reddere noluerint ( debitores ) nec ad disrationandum venire , tunc cives quibus debita sua debent , capiant in civitate , namia sua , vel de comitatu in quo manet , qui debitum debet . char. hen. . de libertat . london . see vetitum namium . namation , ( namatio ) a distreming , or taking a distress . in scotland it is used for impounding . naperie ( anno ric. . ca. . ) ( from the french , nappe , a table-cloath , ) we may call it linnen-clothery . nathwyte . — quod nec dictus philippus de avery , nec haeredes sui de caetero petere possint aliqua tallagia , nec etiam francum plegium , nec etiam aliam demandam , quae vocatur nathwyte . carta hen. . m. . perhaps , from the sax. nyþ. i. lewdness , and so it may signifie the same with lairwite . nativity , ( nativitas ) birth ; casting the nativity , or , by calculation , seeking to know how long the queen should live , &c. made felony , anno eliz. ca. . nativitas was anciently taken for bondage , or villenage — terram , quam nativi sui tenuerunt de se in nativitate . mon. angl. par . fo . . a. nativo habendo , was a writ that lay to the sheriff , for a lord , whose villain , claimed for his inheritance , was run from him , for the apprehending and restoring him to his lord. reg. of writs , fo . . fitz. nat. br. fo . . nativus , is qui natus est servus , & sic differat ab eo qui se venundari passus est . servos enim alios bondos dicimus , alios nativos , alias villanos . bondi sunt qui pactionis vinculo se astrinxerint in servitutem , unde & nomen , nam bond , anglice vinculum , bondi quasi astr●cti nuncupantur . de nativis jam supra . villani , sunt qui glebae ascripti villam colunt dominicam , nec exire licet , sine domini licentia . spelm. vide chart. rich. . qua omnes manumittit a bondagio in com. hertford . walsingham , pag. . — quod si aliquis nativus alicujus in praefato burgo manserit & terram in eo tenuerit , & fuerit in praedicta gilda & hansa & loth & scoth cum eisdem burgensibus nostri● per unum ann um & unum diem sine calumpnia , deinceps non possit repeti a domino suo , ut in eodem burgo liber permaneat . carta hen. . burgensibus mungumery . nativè tenentes , sunt ( ipsi etiam liberi ) qui terram tenent nativam : hoc est nativorum servitiis obnoxiam . spel. naturalization ( naturalizatio ) is when an alien born is made the kings natural subject . see denizen . ne admittas , is a writ that lieth for the plaintiff in a quare impedit , or him that hath an action of ' darein presentment depending in the common bench , and fears the bishop will admit the clerk of the defendant , during the sute between them ; which writ must be sued within six moneths after the avoidance , because after the six moneths , the bishop may present by lapse . reg. of writs , fol. . fitz. nat. br. fol. . neat-land ( sax. ) terra villanorum : land let or granted out to the yeomanry . ex vet. charta . negative pregnant ( negativa praegnans ) is a negative , which implies or brings forth an affirmative ; as , if a man being impleaded to have done a thing on such a day , or in such a place , denies that he did it modo & forma declarata , which implies nevertheless that in some sort he did it . or , if a man be impleaded for having alienated land in fee , &c. he denies that he hath alienated in fee ; this is a negative which includes an affirmative , for it may be he hath made an estate in tayl. dyer fol. . num . . and see brook , hoc tit . neif ( fr. naif , i. naturalis , nativa ) signifies a bond-woman , a she villain . mentioned anno rich. . cap. . see nativus . anciently when a lord made his bond-woman free , he gave her this kinde of manumission . sciant praesentes & futuri quod ego radulphus de crombewel miles senior & dominus de lambeley dedi domino roberto vicario de dedeling beatricem filiam willielmi hervy de lambeley quondam nativam meam , cum tota sequela sua , cum omnibus catallis suis perquisitis & perquirendis . habend . & tenend . predictam beatricem cum tota sequela sua & omnibus catallis suis & omnibus rebus suis perquisitis & perquirendis praedicto domino roberto vel suis assignatis liberè quietè benè & in pace imperpetuum . ita quod nec ego praedictus radulphus & heredes mei sive assignati mei aliquòd juris vel clamii in predicta beatrice vel in catallis suis sive in sequela sua ratione servitutis vel nativitatis de caetero exigere vel vendicare poterimus , sed quieta sit & absoluta de me & haeredibus meis seu assignatis meis ab omni onere servitutis & nativitatis imperpetuum . in cujus — ●iis testibus — dat. apud lambeley in die sancti laurentii martyris . anno edw. . see manumission . writ of neifty , was an ancient writ , now out of use , whereby the lord claimed such a woman for his neif , wherein but two neifs could be put . ne injuste vexes , is a writ that lies for tenant , who is distreined by his lord for other services , then he ought to make , and is a prohibition to the lord in it self , commanding him not to distrain . the special use of it is , where the tenant has formerly prejudiced himself , by performing more services , or paying more rent without constraint , then he needed ; for , in this case , by reason of the lords seisin , he cannot avoid him in avowry , and therefore is driven to this writ , as his next remedy . reg. of writs , fo . . fitz. nat. br. fol. . nesse ( anno hen. . ca. . ) se●ems to be the proper name of orford haven in suffolk . ne vicecomes colore mandati regis quenquam amoveat a possessione ecclesiae minus juste . reg. of writs , fo . . nient comprise , is an exception taken to a petition as unjust , because the thing desired is not conteined in that act or deed , whereon the petition is grounded . for example , one desires of the court to be put in possession of a house , formerly among other lands , &c. adjudged to him ; the adverse party pleads , that this petition is not to be granted , because , though the petitioner had a judgment for certain lands and houses , yet this house is not comprised among those , for which he had judgment . new book of entries , tit . nient comprise . ni●●e , ( anno edw. . ca. . ) both cowel and spelman have it without any explication . i suppose it a corruption from nihil , and to signifie a toy , or thing of no value . nihils , or nichils , ( anno rich. . stat. . ca. . and eliz. ca. . ) are issues , which the sheriff , that is apposed , says , are nothing worth , and illeviable , for the insufficiency of the parties that should pay them . practice of the exchequer , pa. . accompts of nihil shall be put out of the exchequer . anno rich. . stat. . ca. . nihil dicit , is a failing to put in answer to the plaintiffs plea by the day assign'd ; which , if a man do omit , judgment passeth against him , as saying nothing why it should not . nihil capiat per breve , is the judgment given against the plaintiff , either in barr of his action , or in abatement of his writ . coke on litt. fo . . nisi prius , is a writ judicial , which lies in case , where the enquest is panelled , and returned before the justices of the bank , the one party or the other desiring to have this writ for the ease of the country ; whereby the sheriff is willed to bring the men empanel'd to westminster at a certain day , or before the justices of the next assises ; nisi die lunae apud talem locum prius venerint , &c. see the form of it in old nat. br. fo . . and see the statute edw. . ca. . and that of york , edw. . and west . . ca. . see justices of nisi prius , and inst . fo . . noctes & noctem de firma . we often meet in domesday with tot noctes de firma , or firma tot noctium ; which is to be understood of meat and drink , or entertainment for so many nights . nobility , ( nobilitas ) with us compriseth all dignities above a knight ; so that a baron is the lowest degree of it . smyth de repub. angl. lib. . ca. . v. coke , lib. . count of salops case . nocumento . see nusance . nomination , ( nominatio ) is taken for a power , that a man , by vertue of a mannor , or otherwise , hath , to appoint a clerk to a patron of a benefice , by him to be presented to the ordinary . non-ability , is an exception taken against the plaintiff or demandant , upon some cause why he cannot commence any sute in law ; as praemuniri , outlary , villenage , professed in religion , excommunication , or because he is a stranger born ; howbeit the last holds only in actions real or mixt , and not in personal , except he be a stranger and an enemy . the civilians say , such a man has not personam standi in judicio . see brooke , hoc tit . and fitz. nat. br. fo . . and . non admittas . see ne admittas . nonage , is all the time of a mans age , under one and twenty years in some cases , or in others , as marriage . see broke , tit . age. see age. non capiendo clericum . see clericum non capiendo . non-claim , is an omission , or neglect of a man , that claims not within the time limited by law ; as within a year and day , where continual claim ought to be made , or within five years after a fine levied . vide coke , lib. . in proaem . and continual claim . non compos mentis , is a man of no sound memory and understanding , of which there are four sorts . . an ideot , who from his nativity , by a perpetual infirmity , is non compos mentis . . he that by sickness , grief , or other accident wholly loseth his memory and understanding . . a lunatick , that has sometimes his understanding , and sometimes not , aliquando gaudet lucidis intervallis . lastly , he that by his own act for a time deprives himself of his right mind , as a drunkard ; but that kind of non compos mentis shall give no priviledge or benefit to him or his heirs ; and a descent takes away the entry of an ideot , albeit the want of understanding was perpetual . coke , lib. . beverly's case . non di●●ringendo , is a writ comprizing divers particulars , according to divers cases , which you may see in the table of reg. of writs . non est culpabilis , is the general plea to an action of trespass , whereby the defendant does absolutely deny the fact , charged on him by the plaintiff , whereas in other special answers , the defendant grants the fact to be done , but alleages some reason in his defence , why he lawfully might do it . and , as this is the general answer in an action of trespass , that is , an action criminal civilly prosecuted ; so is it also in all actions criminally followed , either at the sute of the king , or other , wherein the defendant denies the crime objected to him . see new book of entries , tit . non culp . & stamf. pl. cor. lib. . ca. . non est factum , is a plea to a declaration , whereby a man denies that to be his deed , whereupon he is impleaded . brooke , hoc titulo . non implacitando aliquem de libero tenemento fine brevi , is a writ to inhibit bailiffs , &c. from distreming any man , without the kings writ , touching his freehold . reg. of wrtis , . b. non intromittendo quando breve praecipe in capite subdole impetratur , is a writ which had dependence on the court of wards , and therefore now obsolete . reg. of writs , fo . . b. non merchandizando victualia , is a writ directed to the justices of assise , commanding them to enquire , whether the officers of such a town do sell victuals in gross , or by retain during their office , contrary to the statute , and to punish them , if they find it true . reg. of writs , fo . . non molestando , is a writ that lies for him , who is molested contrary to the kings protection granted him . reg. of writs , fo . . non obstante , notwithstanding , is a word or clause usual in statutes and letters patent . — all grants of such pensiōns , and every non obstante therein contained shall be void . stat. car. . ca. . v. part crokes rep. fo . . and plow . com. fo . , . in henry the thirds time ( says sir richard baker ) the clause non obstante ( brought in first by the pope ) was taken up by the king in his grants and writings . see pryns animadversions on fourth inst . fo . . non omittas , is a writ lying , where the sheriff delivers a former writ to a bailiff of a franchise , in which the party , on whom it is to be served , dwels , and the bailiff neglects to do it : in this case the sheriff returning , that he delivered it to the bailiff , this shall be directed to the sheriff , charging him to execute the kings command himself . old. nat. br. fo . . of this the reg. of writs has three sorts , fo . . b. . non ponendo in assisis & juratis , is a writ founded upon the stat. westm . . ca. . and the stat. articuli super chartas , ca. . which is granted upon divers causes to men , for the freeing them from serving upon assises and juries , as by reason of old age , &c. see fitz. nat. br. fo . . and reg. fo . . . non procedendo ad assisam rege inconsulto , is a writ to stop the trial of a cause appertaining to one , who is in the kings service , &c. until the kings pleasure be farther known . reg. fo . . non residentia pro clericis regis , is a writ directed to the ordinary , charging him not to molest a clerk imployd in the kings service , by reason of his non-residence . reg. of writs , fol . b. non residence ( anno hen. . cap. . ) is applied to those spiritual persons , that are not resident , but do absent themselves by the space of one moneth together , or two moneths at several times in one year , from their dignities , prebends , or benefices . for regularly , personal residence is required of ecclesiastical persons upon their cures . see part instit . fol. . non solvendo pecuniam , ad quam clericus mulctatur pro non residentia , is a writ prohibiting an ordinary to take a pecuniary mulct , imposed upon a clerk of the kings for non-residency . reg. of writs , fol. . non-sute , ( i non est prosecutus , &c. ) is a renunciation of the sute by the plaintiff or demandant , most commonly upon the discovery of some error or defect , when the matter is so far proceeded in , as the jury is ready at the bar , to deliver their verdict . anno hen. . cap. . see the new book of entries , verbo , nonsute . the civilians term it litis renunciationem . non-tenure , is an exception to a count , by saying , that he holdeth not the land mentioned in the count , or at least some part of it . anno edw. . stat . . cap. . west , par . . symb. tit . fines , sect . . mentions non-tenure general , and non-tenure special : this , is an exception , alleaging that he was not tenant the day whereon the writ was purchased ; general , is , where one denies himself ever to have been tenant to the land in question . see new book of entries , aerbo , non tenure . non sum informatus . see informatus non sum . non sane memorie ( non sanae memoriae ) is an exception taken to any act , declared by the plaintiff or demandant to be done by another , and whereon he grounds his plaint or demand : and the effect of it is , that the party that did that act , was mad or not well in his wits when he did it , or when he made his last will and testament . see new book of entries , tit . non sane memorie . see non compos mentis . nones ( nonae ) in march , may , july , and october , are the six days next following the first day , or the calends . in other moneths they are the four days next after the first ; but the last of these days is properly called nones , and the other reckoned backward , according to the number distant from the nones , as the third , fourth , or fifth nones . they are called nones , because they begin the ninth day before the ides . dates of deeds by nones , ides , or calends is sufficient . inst . fol. . non-term ( non terminus ) is the time of vacation between term and term. it was anciently called the times or days of the kings peace . lamb. archa . fol. . and what these were in the time of king edward the confessor , see there . see peace of god , and the church . this time was called justic●um or feriae among the romans , or dies nefasti . ferias appellari notum est tempus illud , quod forensibus negotiis & jure dicendo vacabat . brisson . de verb. signif . lib. . nook of land ( noka terrae ) — universis pateat , quod ego johanna quae fui uxor walteri le blount — tradidi — henrico adams unum mes . & unam nokam terrae cum pertin . in villa de momele , &c. dat. apud sodyngton , edw. . norroy ( quasi , north-roy , the northern king ) the third of the three kings at arms , whose office lies on the northside of trent , as clarentius on the south ; and is mentioned in the stat. car. . cap. . see herald . notary ( notarius ) anno edw. . cap. . is a scribe or scrivener that takes notes , or makes a short draught of contracts , obligations , or other instruments . claus . edw. . m. . schedula consuta eidem memb . de notariis imperialibus non admittendis . note of a fine ( nota finis ) is a brief of a fine made by the chirographer , before it be engrossed : the form whereof see in west . par . . symbol . tit . fines , sect . . not guilty . see non est culpabilis . novale ( ex cartulario abbathiae de furnesse in com. lanc. in officio ducat . lanc. fol. . b. ) — item nota quod novale est ager nunc primum praecisus , ut extra verborum significationibus innovatae , ubi glossa dicitur novale , terra de novo ad culturam redacta , cujus non extat memoria quod fuisset ibidem : et quod novale semel fuit , semper erit novale , quoad decimarum retentionem vel solutionem . land newly ploughed or converted into tillage . — excepta decima novalium cujusdam terrae , quam de novo excoluerunt pat. edw. . pa. . m. . novel assignment ( nova assignatio ) is in an action of trespass , an assignment of time , place , or such like , in a declaration more particularly then it was in the writ . broke , tit . deputy , num . . and trespass . . see assignment . noyles ( anno jac. cap. ) — no person shall put any flocks , noyles , thrums , hair , or other deceivable thing into any broad woollen cloth , &c. nude contract ( nudum pactum ) is a bare contract or promise of a thing , without any consideration given therefore : ex quo non oritur actio . nude matter . see matter . nummata terrae , is the same with denariata terrae , by some taken to be an a●re . sciatis me ( wil. longespe ) dedisse & concessisse ecclesiae sanctae mariae de walsingham & canonicis ibidem deo servientibus in perpetuam ele●mosinam nummatas terrae in walsingham , &c. see fardingdele . nuncupative will. see will. nunn ( nonna ) signifies a holy or consecrated virgin , or a woman that hath by vow bound her self to a single or chaste life , in some place , or company of other women , separad from the world , and devoted to a special service of god , by prayer , fasting , and such like holy exercises . cowel . nuper obiit , is a writ , that lies for a coheir , being deforced by her coparcener of lands or tenements , whereof their grandfather , father , uncle , or brother , or any other , their common ancestor , died seised of an estate in fee-simple . see the form of the writ in reg. of writs , fol. . and fitz. nat. br. fol. . if the ancestor died seised in fee-tail , then the coheir deforced shall have a formdon . ibidem . nusance ( from the fr. nuire , i. nocere ) signifies not onely a thing done to the annoyance of another in his free lands or tenements , but the assize or writ lying for the same . fitz. nat. br. fol. . and this writ de nocumento or of nusance , is either simply , de nocumento or de parvo nocumento ; and then it is vicountiel . old nat. br. fol. . britton ( cap. . & . ) calls it nosance . manwood ( pa. . cap. . ) makes three sorts of nusance in the forest ; the first is , nocumentum commune ; the second , nocumentum speciale ; the third , nocumentum generale , of which , read there . see cokes fifth report , williams case . writs of nusances , see the stat. rich. . cap. . now much turned into trespasses and actions upon the case . o. o. ni. — the course of the exchequer is , that as soon as a sheriff enters into his account for issues , amerciaments , and mean profits , to mark upon his head. o. ni. which signifies oneratur , nisi habeat sufficientem exonerationem , and presently he becomes the kings debtor , and a debet set upon his head ; whereupon the parties peravaile are become debtors to the sheriff , and discharged against the king. inst . fol. . oale-gavel . see gavelsester . oategavel . see gavel . oath ( juramentum ) is a calling almighty god to witness that the testimony is true ; therefore it is aptly termed sacramentum , a holy band , a sacred tye , or godly vow . and it is called a corporal oath , because the party when he swears , toucheth with his right hand the holy evangelists or book of the new testament . coke part. inst . cap. . see the several oaths of many of the officers of this kingdom in the book of oaths lately printed . in a deed of william de elmham knight , in french , dat. april , edw. . is this old fashioned oath , — promettant per la foye de mon corps & de chivalerie , que si dieu moy voille mesnez en savete , &c. ieo delivera les avantditz sommez , &c. m s. penes will. dugdale , ar. obedientia , was a rent , as appears by hotedens annals , parte poster , fo . . ut ergo eis , ( scil . regularibus ) adimatur opportunitas evagandi , prohibemus , ne reditus quos obedientias vocant , ad firmam tencant — in the canon law it is used for an office , or the administration of it . whereupon the word obedientiales in the provincial constitutions is used for those who have the execution of any office under their superiors , ca. . de statu regular . it may be some of these offices called obedientiae , consisted in the collection of rents , or pensions , and that therefore those rents were by a metonymy called obedientiae , quia colligebantur ab obedientialibus . concil . eboracens . anno . obit , ( anno edw. . ca. . and car. . ca. . a funeral solemnity , or an office for the dead , most commonly performed at the funeral , when the corps lie in the church uninterr'd : also the anniversary-office . croke part , fo . . hollowayes case . it was held eliz. dyer . that the tenure of obit , or chauntry lands held of subjects is extinct by the act of edw. . oblata , properly offerings . but , in the exchequer it signifies old debts , brought , as it were together from precedent years , and put to the present sheriffs charge . see the practice of the exchequer , pa. , also gifts or oblations made to the king by any of his subjects ; which were so carefully heeded in the reigns of king john and henry the third , that they were entred in the fine rolls under the title oblata ; and , if not paid , estreated , and put in charge to the sheriffs ; concerning which , you may see mr. fabian philips book of the antiquity and legality of the royal purveyance , sir henry spelmans glossary , and mr. prins aurum reginae . oblations , ( oblationes , in the canon-law are thus defined , dicuntur quacunque pits fidelibusque christianis offeruntur deo & ecclesiae , sive res solidae sive mobiles sunt . see spel. de concil . to. . fo . . anno car. . ca. . obligation , ( obligatio ) is a bond containing a penalty , with a condition annexed for payment of money , performance of covenants , or the like ; and a bill is commonly without penalty , and without condition ; yet a bill may be obligatory . coke on litt. fo . . obligor , is he that enters into such an obligation ; and , obligee is he to whom it is entred into . before the coming in of the normans , ( as we read in ingulphus ) writings obligatory were made firm with golden crosses , or other small signs or marks ; but , the normans began the making such bills and obligations with a print , or seal in wax , set to with every ones special signet , under the express entituling of three or four witnesses . in former time many houses and lands thereto passed by grant and bargain without script , charter , or deed , only with the landlords sword or helmet , with his horn or cup : yea , and many tenements were demised with a spur or curry-comb , with a bow , or with an arrow . see wang . obolata terrae , is ( in the opinion of some authors ) half an acre of land ; but others hold it to be but half a perch . thomasius sayes , obolum terrae contains ten foot in length , and five in breadth . see fardingdeal . obventions , ( obventiones ) offerings : inst . fo . . also rents , or revenue , properly of spiritual livings . anno car. . ca. . — margeria marescalla comitissa de warewyke universis sanctae matris ecclesiae filiis , &c. dedi — omnes obventiones , tam in decimis majoribus & minoribus , quam in aliis rebus de assartis de wigenoc & decimam pannagii & venationis de wigenoc & de rinsell , &c. ms. penes will. dugdale ar. occupant . if tenant per terme dauter vic dies , living cestuy que vie ; he that first enters shall hold the land during that other mans life , and he is in law call'd an occupant , because his title is by his first occupation . and so , if tenant for his own life grant over his estate to another , if the grantee dies , there shall be an occupant . coke on litt. ca. . sect. . and bulstrods rep. part , fo . , . occupation , ( occupatio , ) signifies the putting a man out of his freehold in time of war , and is all one with disseisin in time of peace , saving that it is not so dangerous , coke on litt. fo . . b. also use , or tenure , as we say , such land is in the tenure or occupation of such a man , that is , in his possession or management . see terre tenant . also trade or occupation . car. . ca. . but , occupationes , in the stat. de bigamis , ca. . are taken for usurpations upon the king ; and , it is properly , when one usurpeth upon the king , by using liberties or franchises , which he ought not to have ; as an unjust entry upon the king into lands and tenements , is called an intrusion , so an unlawful using of franchises is an usurpation ; but , occupationes in a large sence , are taken for purprestures , intrusions , and usurpations . inst . fo . . occupavit , is a writ that lies for him , who is ejected out of his land or tenement in time of war ; as , a writ of novel dissesin lies for one ejected in the time of peace . octave , ( octavus ) the eighth day after any feast inclusively . see utas . octo tales . see tales , & brook tit . octo tales . odio & atia , ( anno ed. . ca. . ) anciently called breve de bono & malo , is a writ sent to the under-sheriff , to enquire , whether a man , being committed to prison , upon suspition of murder , be committed upon malice , or ill-will , or upon just suspition . reg. of writs , fo . . b. see bracton , lib. . part. . cap. . and stat. edw. . ca. . atia was anciently written hatia , or hatya , for hate , not atia , quia malitia est acida , as sir edw. coke has it in his rep. fo . . and in inst . fo . . see spel. on atia . office , ( officium ) signifies not onely that function , by vertue whereof a man has some employment in the affairs of another , as of the king , or other person ; but also an inquisition made to the kings use of any thing by vertue of his office , who enquireth . therefore we often read of an office found , which is such a thing found by inquisition , made ex officio . in which signification 't is used anno hen. . ca. . and in stamf. praerog . fo . , & . where to traverse an office , is to traverse an inquisition taken of office before an escheator . and in kitchin , fo . . to return an office , is to roturn that which is found by vertue of the office. see also the new book of entries , verbo , office pur le roy ; and this is by a metonymy of the effect . in this signification there are two sorts of offices issuing out of the exchequer by commission , viz. an office to entitle the king in the thing enquired of , and an office of instruction , which read in cokes rep. pages case . office in fee , is that , which a man hath to him and his heirs , anno ed. . ca. . kitchin , fo . . see clerk. oferhyrnesse & overhernessa , — si autem post excommunicationem & satisfactionem venerint , forisfacturam suam , quae anglicè vocatur oferhyrnesse seu cahstite , pro unaquaque vocatione episcopo suo reddant . concil . wintoniae temp . lanfranci archiepis . anno . see gloss . in x. scriptores , verbo , overhernessa . official , ( officialis ) signifies him , whom the arch-deacon substitutes for the executing his jurisdiction , as appears by the statute hen. . ca. . in the canon-law it is he , to whom any bishop does generally commit the charge of his spiritual jurisdiction ; and , in this sence one in every diocess is officialis principalis , whom our statutes and laws call chancelor ; the rest , if there be more , are by the canon-law called officiales foranci , but by us commissaries . the word is also by some modern civilians applyed to such as have the sway of temporal justice . officiariis non faciendis vel amovendis , is a writ directed to the magistrates of a corporation , willing them not to make such a man an officer , and to put him out of the office he hath , until enquiry be made of his manners , according to an inquisition formerly ordained . reg. of writs , fo . . b. ofgangfordel . — eantque ( rei ) ad triplex judicium , quod angli ofgangfordel vocant . constit . canuti de foresta , ca. . oleron laws , or the sea-laws of oleron , so called , because they were made by king richard the first when he was there , and relate to maritime affairs , coke on litt. fo . . b. this oleron is an island , which lies in the bay of aquitaine , at the mouth of the river charent , belonging now to the french king. see seldens mare clausum , fo . , & . and pryns animadversions on inst . fo . . olympiad , ( olympias ) the space of five years ; by which king ethelbert , in a certain charter of his computed the years of his reign — consontiens , signo sanctae crucis subscripsi in olympiade regni mei . spelm. onerando pro rata portionis , is a writ that lies for a joint-tenant , or tenant in common , that is distreined for more rent , then the proportion of his land comes to . reg. of writs , fo . . b. onus importandi . i. the burden , or charge of importing , mentioned in the stat. car. . art. . onus probandi , i. the burden or charge of proving , anno car. . ca. . open law , ( lex manifesta , lex apparens ) is making of law , which ( by magna charta , ca. . ) bailiffs may not put men to , upon their own bare assertions , except they have witnesses to prove their imputation . see law. openthes , i. open theft . quaedam placita vel crimina emendari non possunt , quae sunt husbrech , bernet , openthef , eberemord , and lafordswic , &c. ll. hen. . ca. . ora — egofrater nigellus dei gratia abbas bertoniae , dedi , in capitulo nostro & omnes fratres mei mecum , terram de ocovere , ormae , hac conventione , ut unoquoque anno nobis xx oras persolvat , & proinde factus est homo noster , &c sine dat . this was saxon-money , or coin , which valued xvi d. a piece , and often found in domesday . orchel , ( anno rich. . ca. . ) orchal , ( anno hen. . ca. . and & edw. . ca. . ) seems to be a kind of cork . ordeff , or oredelf , ( effossio materiei metallicae vel ipsius metalli ) from the sax. ore , metallum & delfan , effodere , is a word often found in charters of priviledges , and is taken for a liberty , whereby a man claims the ore found in his own ground . it properly signifies ore , lying under-ground ; as a delf of coal is coal lying in veins under-ground , before it is digged up . ordel , ( sax. ordoel . lat. ordalium , ) signifies great judgment , from the sax. or , magnum & deal , judicium . it was used for a kind of purgation practised in the time of edward the confessor , and since even to king john and henry the thirds time , whereby the party purged was judged , expers criminis , called in the canon-law , purgatio vulgaris . ll. edw. conf. ca. . there were two sorts of it , one by fire , another by water ; liber per ferrum candens , rusticus per aquam . glanv . lib. . ca. . pa. . this ordalian law was condemned by pope stephen the second , and ( to use sir edward cokes words ) fuit ouste per parliament , come appiert rot. paten . de anno hen. . membr . . henricus ( ) dei gratia rex , &c. dilectis & fidelibus suis philippo de ulecot & sociis suis justiciariis itinerantibus in comitatibus cumberland , westmerland , and lancaster , salutem . quia dubitatum fuit & non determinatum ante inceptionem itineris vestri , quo judicio deducendi sunt illi qui rectati sunt de latrocinio , murdro , incendio & hiis similibus , cum prohibitum sit per ecclesiam romanam judicium ignis & aquae ; pro●isum est a concilio nostro , ad praesens , at in hac itinere , sic fiat de rectatis de hujusmodi excessibus , viz. quod illi qui rectati sunt de criminibus praedictis majoribus , & de eis habeatur suspicio quod culpabiles sint de eo unde rectati sunt ( de quibus etiam licet regnum nostrum abjurarent adhuc suspicio esset quod postea malefacerent ) teneantur in prisona nostra , & salvo custodiantur , ita quod non incurrant periculum vitae vel membrorum occasione prisonae nostrae . illi vero qui mediis criminibus rectati fuerint & quibus competeret iudicium ignis vel aquae , si non esset prohibitum , & de quibus , si regnum nostrum abjurarent , nulla fuerit postea male faciendi suspitio , regnum nostrum abjurent . illi vero qui minoribus rectati fuerint criminibus , nec de eis fuerit mali suspitio , salvos & securos plegios inveniant de fidelitate & pace nostra conservanda , & sic dimittantur in terra nostra . cum igitur nihil certius providerit in hac parte consilium nostrum ad praesens , relinquimus discretioni vestrae hunc ordinem praedictum observandum in hoc itinere vestro , ut qui personas hominum , formam delicti , & ipsarum rerum veritatem melius cognoscere poteritis , hoc ordine secundum discretiones & conscientias vestras in hujusmodi procedatis . et in cujus rei testimonium , &c. teste domino p. wintoniensi episcopo apud west . die ian. anno regni nostri tertio . per eundem & h. de burgo iusticiarium . see spelman at large upon this subject , fo . . coke , lib. . de strata marcella . and sax. dict. ordinance of the forest , ( ordinatio forestae ) is a statute made in the year of ed. . touching forest-matters . see assise . ordinary , ( ordinarius ) though in the civil law , whence the word is taken , it signifies any judge that has authority to take cognisance of causes in his own right , as he is a magistrate , and not by deputation ; yet in our common law it is properly taken for the bishop of the diocess , or he that has ordinary iurisdiction in causes ecclesiastical , immediate to the king and his courts of common-law , for the better execution of justice . coke on litt. fo . . west . . ca. . — edw. . ca. . and hen. . ca. . ordinatione contra servientes , is a writ that lies against a servant , for leaving his master against the statute , reg. of writs , fo . . orfgild , ( from the sax. orf , pecus , & gild . solutio vel redditio ) a delivery or restitution of cattel : but lambert sayes , 't is a restitution made by the hundred or county , of any wrong done by one that was in pledge . archa . pa. . or rather a penalty for taking away of cattel . orfraies , ( aurifrisium ) frizled cloth of gold , made and used in england , both before and since the conquest , worn by our kings and nobility , as appears by a record in the tower , where the king commands the templers to deliver such jewels , garments , and ornaments as they had of his in keeping , among which he names dalmaticum velatum de orefreis . i. a dalmatick , or garment , guarded with orfraies . and of old the jacquets , or coat-armors of the kings guard were also termed orfraies ; because adorn'd with goldsmiths work . orgallous , rectius , orguillous , ( from the french orgueil , i. pride ) proud , haughty , lofty-minded . art. against card. woolsey . inst . fo . . orgeis , ( anno edw. . stat. . ca. . ) is the greatest sort of north-sea-fish ; ( for the statute says , they are greater then lob-fish ) in these dayes called organ ling , which is a corruption from orchney , the best being taken near that island . originalia , in the treasurers remembrancers office in the exchequer , are records , or transcripts sent thither out of the chancery ; and are distinguish'd from recorda , which contain the judgments and pleadings in sutes tryed before the barons . ortelli , signifies the claws of a dogs foot , from the fr. orteils des peids , i. digiti pedum , the toes . 't is used in pupilla oculi , chap. de char. forest . par . . ca. . osmonds , ( anno hen. . ca. . and i find in spelmans gloss . mention of a last of osmonds ; ) is that oar , or iron-stone , of which iron is made , and it seems was anciently brought into england . ouch , ( anno hen. . ca. . ) a kind of collar , or neck-lace of gold , or such like ornament , worn by women about their necks : sometimes used for a boss or button of gold. ouersamessa si quis furi obviaverit , & sine vociferatione gratis eum dimiserit , emendet secundum weram ipsius furis , vel plena lada se adlegiet , quod cum eo falsum nescivit : si quis audito clamore supersedit , reddat ouersamessa regis , aut plene se laidiet . lib. rub . ca. . this seems to have been an ancient penalty or fine ( before the statute for hue and cry ) laid upon those , who , hearing of a murder or robbery , did not pursue the malefactor . inst . fo . . and to be the same , which is elsewhere written oversegenesse , and ouersenesse . see gyltwite . ouelty of services , is equality of services ; as , when the tenant paravail owes as much to the mesn , as the mesn does to the lord paramount . fitz. nat. br. fo . . so owelty of partition . coke on litt. fo . . overt-act , ( apertum factum ) an open , plain , evident act , inst . fo . . which must be manifestly proved . overt word , ( an. mar. sess . . ca. . ) an open , plain word ; from the fr. ouvert : ouster le main , ( fr. oster la main , i. to take off the hand ) signifies a livery of lands out of the kings hands , or a judgment given for him that traversed , or sued a monstrance le droit ; for , when it appear'd , upon the matter discussed , that the king had no right nor title to the land he seised , judgment was given in chancery , that the kings hands be amoved , or taken off , and thereupon amoveas manum was awarded to the escheator , to restore the land , &c. stamf. praerog . ca. . it is written oter le maine , hen. . ca. . but now all wardships , liveries , primerseisins , and ouster lemains , &c. are taken away and discharged by car. . ca. . ouster le mer , ( fr. oultre . i. ultra , & le mer , mare , ) is a cause of excuse , or essoin , if a man appear noti in court upon summons , for that he was then beyond the seas . see essoin . ousted , ( from the fr. oster , to remove , or put out ) as , ousted of the possession , ( pecks case . mich. . car. . part crokes rep. fo . . ) that is , removed , or put out of possession . outfangthef , ( from the sax. ut , i. extra , fang , i. capio vel captus & theof , i. fur , quasi fur extra captus , ) is a liberty or priviledge , whereby a lord is enabled to call any man ( dwelling in his fee , and taken for felony in another place , ) to judgment in his own court. rastals expos . of words . anno & ph. & ma. ca. . per outfangthef edwardus sutton miles dominus de dudley , &c. clamat quod quandoque aliquis latro , qui est homo ipsius edwardi de dominio suo praedicto , de aliqua felonia convictus fuerit , pro qua suspendi debeat , in quacunque curia idem felo sit convictus ; ducatur ad furcas ipsius edwardi per ministros suos , & ibidem suspendatur . pl. in itin. apud cestriam . hen. . outlaw , ( sax. utlaghe . lat. utlagatus . ) significat bannitum extra legem . fleta , lib. . ca. . one deprived of the benefit of the law , and out of the kings protection . forisfacit utlagatus omnia quae pacis sunt ; quia a tempore quo utlagatus est caput gerit lupinum , ita quod ab omnibus intersici possit & impune ; maxime si se defenderit vel fugerit , &c. bracton , lib. . tract . . ca. . num . , & . see utlary . but , in the beginning of edward the thirds reign , it was resolved by the judges , that it should not be lawful for any man , but the sheriff onely , ( having lawful warrant therefore ) to put to death any man outlawed . coke on litt. fo . . b. see capias utlagatum . outparters , ( anno hen. . ca. . ) a kind of theeves in ridesdale , that took cattel or other booty without that liberty : others think they were such as lay in wait for robbing any man or house . see intakers . out-riders , are bailiffs errant , employ'd by sheriffs , or their deputies , to ride to the farthest places of their counties or hundreds , with the more speed to summon persons into their county , or hundred courts . anno edw. . stat. . ca. . owelty . see ouelty . oxgang of land , ( bovata terrae ) is commonly taken for fifteen acres ; six oxgangs of land are as much as six oxen will plough . cromp. jurisd . fo . . bovatus terrae , i. quantum sufficit ad iter vel actum unius bovis . ox enim est bos : gang vel gate , iter , see coke on litt. fo . . a. oyer and terminer , ( fr. ouir & terminer ) is a commission especially granted to certain persons , for the hearing and determining one or more causes . this was wont in former times to be only in use upon some sudden outrage or insurrection in any place . see cromp. jurisd . fol. . and westm . . cap. . who might grant this commission . and fitz. nat. br. fol. . for the form and occasion of the writ , and to whom it is to be granted . and brook hoc titulo . a commission of oyer and terminer is the first and largest of the five commissions , by which our judges of assise do sit in their several circuits . see assise . in our statues it is often printed oyer and determiner . see inst . fol. . oyer de record ( audire recordum ) is a petition made in court , that the judges for better proof sake , will be pleased to hear or look upon any record . so likewise to demand oyer of a. bond , deed , or covenant . o yes ( a corruption from the fr. oyez , i. hear ye ) is well known to be used by the cryers in our courts , when they make proclamation of any thing . p. paagium . matth. paris , fol. . fecit equos meos & homines restare donec paagium extorsisset . passagium , scil . sive telonium exactum pro transitu per alterius ditionem , says the glos . pack of wool is a horse-load , which consists of seventeen stone , and two pound . fleta , lib. . cap. . see sarplar . packers ( anno car. . cap. . ) are those that barrel or pack up herrings , and they are to be sworn to do it according to the said statute . packing whites ( anno rich. . cap. . ) a kinde of cloth so called . pacification ( pacificatio ) anno car. . cap. . a peace-making , quieting , or appeasing ; relating to the wars betwixt england and scotland , anno . padnage . the same with pannage . in charta regis hen. . ecclesiae s. martini de bello . pagaments . a sort of frize-cloth so called ; i finde it in the journal book of the lords house of parliament , in a statute of eliz. not printed . pain fort & dur ( fr. peine fort & dure ) signifies an especial punishment for those , that being arraigned of felony , refuse to put themselves upon the ordinary tryal of god and the countrey , and thereby are mute , or such in interpretation of law. this is founded upon westm . . cap. . note , that this strong and hard pain shall be in this manner inflicted . he shall be sent back to the prison whence he came , and laid in some low , dark house , where he shall lie naked on the earth , without any litter , rushes , or other clothing , and without any rayment about him , but onely something to cover his privy-members ; and he shall lie upon his back with his head covered and his feet ; and one arm shall be drawn to one quarter of the house with a cord , and the other arm to another quarter ; and in the same manner it is to be done with his legs , and then there is to be laid upon his body iron and stone , so much as he may bear or more ; and the next day following , he is to have three morsels of barley-bread without drink , and the second day drink three times , and as much at each time as he can drink of the water , next to the prison door , except it be running water , without any bread : and this is to be his diet until he die . stamf. pl. cor. lib. . cap. . pais . ( fr. ) a countrey or region . trial per pais , quod non intelligendum est de quovis populo , sed de compagensibus , hoc est , eorum qui ex eodem sunt comitatu , quem majores nostri pagum dixere , & incolas ind● pais ; g in i vel y converso . spelmans glossar . palatin . see county palatine . palfrey ( palfredus , palafredus , & palefridus , fr. palefray ) insignioris equi genus , nempe qui ad pompam aut honorem vectorum manu ducitur , vulgo palfrey , ex gal. par le frain . and sometimes of old taken for a horse for a womans saddle . w. fauconberge tenebat manerium de cukeney in com. nott. in sergientia , per servitium ferrandi ( of shooing ) palefredum regis , quando rex venerit ad mansfeld ; says camden , out of an ancient inquisition . see coke on litt. fol. . palfrey-silber . — custumam ibidem ( i. at belvoir castle ) vocat . palfrey-silber , quae levari debet annuatim de villis de bot●lc●ford normanton , herdeby , &c. & aliis hamlettis . eschaet . edw. . post mortem gul. de roos de hamlake . palingman . ( anno edw. . cap. . and hen. . cap. . ) seems to be a merchant denizen ; one born within the english pale . palls ( anno hen. . cap. . ) are pontificial vestures made of lambs wool , in bredth not exceeding three fingers , and having two labels hanging down before and behinde , which the pope gives or sends to archbishops and metropolitans , who wear them about their necks at the altar , above their other ornaments . the pall was first given to the bishop of ostia by p. marcus the second , anno . and the preface to an ancient synod here in england , wherein odo , archbishop of canterbury presided , begins thus — ego odo humilis & extremus , divina largiente clementia , almi praesulis & pallii honore ditatus , &c. seldens hist . of tithes , p. . palmestry ( anno & phil. & ma. cap. . ) a kinde of divination practised by looking on the lines and marks of the fingers and hands ; a deceitful art used by egyptians , mentioned in the said statute , and there misprinted palmystry . palmata . a handful johannes dei gratia , rex angliae . sciatis no● pro amore dei concessisse — leprosis s. egidii de salopesbirid , quod habeant palmatas bladi & farin● de omnibus saccis , qui cum blado & farina exponuntur ad vendendum in morcato salopeshiriae , tam diebus mercati quam aliis , sicut eas habuerunt tempore hen. regis , patris nostri , de dono & elemosyna ejusdem regis , sc . de unoquoque sacco bladi palmatam duarum manuum , & de sacco farinae , palmatam unius manus , sicut eas habuerunt de dono & elemosyna praedicti regis , dicbus suis , & sicut eas modohabent & habore debent . quare volumus , &c. dat. per manum s. praepositi beverlaci & archid. wellensis apud wudestoke xix . die marcii anno regni nostri quinto . pandoxatrix . — item utimur de pandoxatricibus , quod nemo potest brasiare sive pandoxare in villa & burgo nostro , nisi per redemptionem aliquam factam ad voluntatem comburgensium nostrorum , & si talis pandoxatrix brasiaverit & assisam domini nostri regis in burgo & villa positam & proclamatam fregerit ; tunc debet per balivos amerciari ad voluntatem balivorum nostrorum , & non per pares suos primo & secundo , & si tercia vice assisam fregerit , debet capi per balivos capitales , & publice duci ad locum ubi situatur le gogingstole , & ibi debet eligere unum de duobus , viz. an velit le gogingstole ascendere , an illud judicium redimere ad voluntatem balivorum . ex codice ms. de legibus , statutis & consuetudinibus liberi burgi villae de mountgomery , a tempore hen. . fol. . b. in goldmans dictionary , i finde pandox , for a drunkard , or swilbowl , and pandoxatorium , a brew-house : but pandoxatrix here seems to signifie an ale-wife , that both brews and sells ale or beer . panel . ( fortescu de legibus angl. cap. . and coke on littl. pag. . b. write it panellum in latine ; but sir h. spelman says , hoc minus congrue , and deduces it from pagella , g in n transeunte , sic veteres quidam mannificat pro magnificat ) a schedule or page ; as a panel of parchment , or a counterpane of an indenture : but it is used more particularly for a schedule or roll containing the names of such jurors , as the sheriff returns , to pass upon any trial. reg. of writs , fol. . a. kitchin , fol. . and the empanelling a jury , is the entring their names by the sheriff into a panel , or little schedule of parchment , in panello assizae . anno hen. . cap. . haud recte d. coke in gloss . ad littl. sect . . who says , panel is an english word , and signifies a little part ; for a pane is a part , and a panel is a little part , &c. thus spelman on the word panella . pannage or pawnage ( pannagium , fr. panage & pasnage ) signifies alimentum , quod in sylvis colligunt pecora , ab arboribus dilapsum , as mast of beech , acorns , &c. also the money taken by the agistors for the food of hogs , with the mast of the kings forest . cromp. jurisd . fol. . westm . . cap. . pawnage ( says manwood , is most properly the mast of the woods or hedg-rows , or the money due to the owner of the same for it . and linwood defines it thus , pannagium est pasius pecorum in nemoribus & in sylvis , utpote de glandibus & aliis fructibus arborum sylvestrium , quarum fructus aliter non solent colligi . tit. de decimis . mentioned also anno car. . cap. . quisque villanus habens porcos , eat unum porcum de pasnagio . domesday , tit . leominstre in heresscire . this word in ancient charters , is thus variously written , pannagium , panagium , pasnagium , pathnagium , patnagium , and paunagium . pape ( papa , from the old gr. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , signifying a father ) was anciently applied to some clergy-men in the greek church ; but by usage is particularly appropriated in the latin church to the bishop of rome , otherwise called the pope . a name very frequent in our ancient year books , especially in the times of those kings , who , too much abandoning their imperial authority , suffered an outlandish bishop , that dwelt . one thousand miles off , to take from them the disposition of many spiritual preferments , sometimes by lapse , sometimes by provision , or otherwise . for redress whereof divers statutes were made , whilest this kingdom was of the roman communion ; but his whole power was not taken away here , till towards the later end of henry the eighth's reign . parage ( paragium . ) see parcinerie . paramount ( compounded of two french words , par , i. per , and monter , ascendere ) signifies the highest lord of the fee. for there may be a tenant to a lord , that holds over of another lord ; the first is called lord mesn , the second paramount . fitz. nat. br. . m. some hold that no man can simply be lord paramount , but onely the king ; for he is patron paramount to all the benefices in england . doctor & student , cap. . see mesn . paraphanalia ( in the civil law paraphernalia ) are those goods which a wife , besides her dower or joynture , is after her husbands death , allowed to have ; as furniture for her chamber , wearing apparel , and jewels , if she be of quality : which are not to be put into her husbands inventary , especially in the province of york . see touchstone of wills , fol. . parabail ( quasi , per-availe ) signifies the lowest tenant , or him that is immediate tenant to the land ; and he is called tenant paravail , because it is presumed he hath prosit and avail by the land. inst . fol. . see rep. cony's case . parcella terrae , a parcel or small peece of land. sciant — quod ego stephanus wington de bromyord dedi — roberto de donampton , pro triginta solidis argenti unam parcellam terrae meae cum pertinen : jacen : in bromyord , &c. sine dat. parcel-maker . is an officer in the exchequer that makes the parcels of the escheators accounts , wherein the escheators charge themselves with every thing they have levied for the kings use , since they came in office , and deliver the same to one of the auditors of the court , to make up the escheators account therewith . see practice of the exchequer , pag. . parceners ( quasi , parcellers , i. rom in parcellas dividens . see coparceners . parcinerie ( participatio , from the fr. partir , i. dividuum facere . ) signifies a holding of land pro indiviso , or by joyntenants , otherwise called coparceners : for , if they refuse to divide their common inheritance , and chuse rather to hold it joyntly , they are said to hold in parcinery . littl. fol. & . in domesday it is thus said , duo fratres tenuerunt in paragio , quisque habuit aulam suam , & potuerint ire quo voluerint . pardon ( fr. ) is most commonly used for the remitting or forgiving a felonious , or other offence committed against the king , and is twofold ; one ex gratia regis , the other , per cours de ley . stamf. pl. cor. fol. . the first is that , which the king , in some special regard of the person , or other circumstance , gives , by his absolute prerogative or power . the other is that which the king granteth , as the law and equity perswades , for a light offence ; as homicide casual , when one kills a man , having no such intent . see new book of entries , verbo , pardon . park , ( parcus ) fr. parc. ) is a quantity of ground enclosed , and stored with wild beasts , tam sylvestres , quam campestres ; which a man may have by prescription , or the kings grant. crom. juris . fo . . a park differs from a chase or a warren ; for , a park must be enclosed : if it lie open , it is a good cause of seisure of it into the kings hands , as a free chase may be if it be enclosed ; and , the owner cannot have an action against such as hunt in his park , if it lie open . see forest . — guliel . conq. liberam fecit ecclesiam de bello de opere parcorum . spel. vide car. . ca. . parco fracto , is a writ that lies against him , who violently breaks a pound , and takes out beasts thence , which for some trespass done were lawfully impounded . reg. of writs , fo . . and fitz. nat. br. fo . . park-bote , is to be quit of enclosing a park , or any part thereof . inst . fo . . parish , ( parochia ) signifies the precinct , or territory of a parish-church , and the particular charge of a secular-priest ; for , every church is either cathedral , conventual or parochial . cathedral is , where there is a bishop seated , so called a cathedra ; conventual consists of regular clerks , professing some order of religion , or of dean and chapter , or other society of spiritual men ; parochial is that , which is instituted for the saying of divine-service , and ministring the holy-sacraments to the people dwelling within the parish , or a certain compass of ground , and certain inhabitants belonging to it . our realm was first divided into parishes by honorius arch-bishop of canterbury , in the year of our lord ● . cam. brit. pa. . who reckons parish-churches under bishops in england , but other authors differ in the number . parle-hill . collis vallo plerunque munitus in loco campestri , ne insidiis exponatur , ubi convenire olim solebant centuriae aut viciniae incolae ad lites inter se tractandas & terminandas . scotis reor grith-hail . q. mons pacificationis , cui asyli privilegia concedebantur . vide stat. will. regis scot. ca. . sect. . et in hibernia frequentes vidimus , the parle and parling-hills . spel. parliament , ( parliamentum , from the fr. parler , loqui ) is the great assembly of this kingdom , consisting of the king and the three estates of the realm , viz. the lords spiritual , the lords temporal , and the commons , for the debating of matters touching the common-wealth , and especially the making and correcting laws ; which assembly or court is of all other the highest , and of greatest authority , as you may read in sir tho. smith de repub. angl. & cam. britan. pa. . si vetustatem spectes , est antiquissima , si dignitatem , est honoratissima , si jurisdictionem , est capacissima . coke on litt. lib . ca. . sect. . and see his fourth part inst . ca. . this great assembly was anciently called commune concilium regni angliae . as in an ancient charter of king john — nullum scutagium vel auxilium ponam in regno nostro , nisi per commune consilium regni nostri , &c. the first parliament in england , ( according to sir richard baker , ) was held at salisbury april , hen. . but see cottoni post●um● , fo . . and inst . fo . . where there is mention of parliaments held long before that time . the abbot of croyland was wont to call a parliament of his monks to consult about the affairs of his monastery . croylandensis libri haec sunt verba , — concessimus etiam tunc scrientium nostrae ecclesiae semanno de lek ; qui veniens coram conventu , in nostro publico parliamento , similiter juramentum prestitit , quod fidus & fidelis nobis existerit , & officium , &c. and at this day the community of the two temples , or inns of court , do call that assembly , a parliament , wherein they consult of the common affairs of their several houses . see crom. jurisd . fo . . see royal assent . parliamentum insanum , ( so called in history ) was a parliament held at oxford , anno h. . ms. in bibl. cotton sub tit . vitellius . c. . parliamentum indoctorum , was a parliament held at coventry , hen. . whereunto , by special precept to the sheriffs , in their several counties , no lawyer , or person skill'd in the law , was to come ; and therefore it was so called : walfingh . pa. . n. . rot. parl. hen. . parol , ( fr. ) is used in kitchin , fo . . for a plea in court ; and being joyn'd with lease , as lease parol , or lease per parol , is , a lease by word of mouth , contradistinguish'd from one in writing . parson , ( persona ) signifies the rector of a church ; because he for his time represents the church , and susteins the person thereof , as well in suing , as being sued in any action touching the same . see fleta , lib. . ca. . charta hugonis pusac , ( alias pudsey & de puteaco ) tempore hen. . hugo dei gratia dunelmensis episcopus omnibus archidiaconis suis clericis & laicis episcopatus sui salutem . sciatis nos ad praesentationem roberti capellani in ecclesiam de witefield , quae in feudo suo sita est , canonice impersonasse robertum nepotem suum . quare volumus & praecipimus quatenus idem robertus habeat & teneat ecclesiam praenominatam libere & quiete , tam in decimis quam in caeteris obventionibus , sicut aliqui clerici liberius & quietius in episcopatu nostro ecclesias suas teneant ; salvis in omnibus episcopalibus consuetudinibus . testibus , &c. endorsed thus , praesentatio roberti de quitefeld . parson imparsonee , ( persona impersonata ) is the rector that is in possession of a church parochial , be it presentative or impropriate , and with whom the church is full ; for , in the new book of entries , verbo , ayd in annuity , you have these words , et praedictus a. dicit quod ipse est persona praedictae ecclesiae de s. impersonata in eadem ad praesentationem f. patronissae , &c. so that persona seems to be the patron , or he that has right to give the benefice , by reason , that before the later an councel , he had right to the tythes in respect of his liberality in erecting or endowing the church , quasi sustineret personam ecclesiae ; & persona impersonata , he to whom the benefice is given in the patrons right . for , in the reg of writs judicial , fo . . b. persona impersonata is used for the rector of a benefice presentative and not appropriated ; and dyer , fo . . num . . sayes a dean and chapter , are parsons impersonees , of a benefice appropriated to them ; who also ( fo . . num . . ) plainly shews , that persona impersonata is he that is inducted , and in possession of a benefice . so that persona seems to be termed impersonata , onely in respect of the possession he has of the benefice or rectory , be it appropriate or otherwise , by the act of another , coke on litt. fo . . b. parters of gold and silver . see finors . partes finis nihil habuerunt , &c. is an exception taken against a fine levied . cokes rep. lib. . case of fines . particata terrae . see perticata terrae . partitione facienda , ( anno hen. . ca. . ) is a writ that lies for those , who hold lands or tenements pro indiviso , and would sever to every one his part , against him or them that refuse to joyn in partition , as coparceners , or tenants in gavelkind . old nat. br. fo . . fitz. nat. br. fo . . and new book of entries , verbo partition . dorset . placita de juratis & assis . anno edw. . motingh . edwardus kaynel , maria filia roberti de camma , johannes bereset & matilda uxor ejus & johanna soror ejusdem matildae petunt versus johannem alfrith de warham unum toftum cum pertin in warham , de quo johannes gerard , consanguineus predictorum edwardi , mariae , matildae & johannae cujus heredes ipsi sunt , fuit scifitus in dominico suo , ut de feodo , dic quo obiit , &c. unde dicunt , &c. et johannes venit & dicit , quod tenementa in warham sunt partibilia inter masculos & femellas , & dicit quod praedictus edwardus habet quasdam gunnoram , matildam , christianam , albredam & eufemiam sorores & participes ipsius edwardi & aliorum petentium , & quae tantum jus habent in re petita sicut , &c. & quae non nominantur in brevi , &c. & edwardus & alii non possunt hoc dedicere : ideo consideratum est quod praedictus johannes eat inde sine die , &c. partie-jury , ( anno car. . ca. . ) see medictas linguae . partlet , ( anno hen. . ca. . ) was a kind of band to wear about the necks both of men and women , now out of use . parvise . see pervise . parvo nocumento , is a writ . see nusance . paschal rents , are rents or yearly tributes paid by the inferior clergy to the bishop or arch-deacon at their easter-visitation ; called also synodals , which vide . passage , ( passagium ) is a french word signifying transitum , meatum . in the statutes edw. . ca. . and westm . . ca. . it signifies the hire that a man pays for being transported over-sea , or over any river . charta , hen. . de libertat . london . — et omnes res corum per totam angliam , & per portus maris de theolonio & passagio & lastagio , & omnibus aliis consuetudinibus . per passagium clamat esse quiet . de omnibus passagiis in com. cestriae & flint pro omnibus carectis , cariag . equis , servientibus & summagiis suis oneratis . pl. in itin. apud cestriam , hen. . pascua . see pasture . pascuage , ( pascuagium , fr. pascage , ) grasing , feeding , or pasturing of cattel . — et habere viginti porcos quietus de pascuagio , & fualium ad panem suum & ad cibos coquendos , &c. carta ric. de muntfichet priorat● de tremhale in mon. angl. par . fo . . . also the same with pannage . passagio , is a writ directed to the keepers of the ports , to permit a man to pass over sea , who has the kings licence . reg. of writs , fo . . b. passe-port , ( compounded of two french words , passer , i. transire ; & port , i. portus , ) signifies a licence granted by any person in authority , for the safe passage of any man. from one place to another . anno ed. . ca. pasture , ( pastura ) — differunt pascua & pastura ; nam pastura omne genus pascendi significat , sive fiat in pratis , sive in stipula , sive in agris , sive in campis ; sed pascua est locus principaliter deputatus pecoribus pascendis , ut puta in montibus , moris , mariscis & planis non cultis nec aratis . lindewode , lib. . provin . angl. tit de decimis , cap. . quoniam . patents , ( literae patentes , ) differ from writs , crom. jur. fo . . the coroner is made by writ , not by patent . see letters patent in the table of the register , where you shall find the form of divers . patentee , is he , to whom the king grants his letters-patent , anno ed. . ca. . patria , pro compagensibus . sic in legum formulis , ubi dicitur inquiratur per patriam . et assisa vel recognitio per assisam , idem est quod recognitio patriae . see bona patria . patron , ( patronus , ) both in the canon and common law , signifies him that has the gift of a benefice ; because the gift of churches and benefices originally belonged to such good men , as either built them , or endowed them with some great part of their revenue . patroni in jure pontificio dicuntur qui alicujus ecclesiae extruendae , aut alterius cujuscunque fundationis ecclesiasticae authores fuerunt , ideoque praesentandi & offerendi clericum jus habent , quem ecclesiae vacanti praeesse , & in ea collatis redditibus frui velint , &c. corasius in paraphr . ad sacerdot . materiam . par. . cap. . & par. . cap. . patron in the civil law is used for him that hath manumitted a servant ; and with the feudists it is used pro authore feudi . hottoman , verbo , patronus . paviage ( rot. pat. edw. . m. . ) money paid towards the paving of streets or high-ways . pawnage . see pannage . pax dei. see peace of god. pax ecclesiae , dicitur , cum salva sunt ecclesiae omnia privilegia & immunitates , servi , famuli , ministri , &c. vide ll. edw. confess . cap. . pax regis , the kings peace . — nam longe dehet esse pax regis a parte sua , ubi residens fuerit a quatuor partibus loci illius , hoc est quatuor miliaria & tres quarentenae , & novem acrae latitudine , & novem pedes , & novem palmae , & novem grana hordei . multus , &c. ll. edw. confess . cap. . & ll. hen. . see peace of the king. peace ( pax ) in the general signification is opposite to war or strife ; but particularly with us , it signifies a quiet and inoffensive carriage or behavior towards the king and his people . lamb. eiren. lib. . cap. . pag. . where any man goes in danger of harm from another , and makes oath of it before a justice of peace ; he must be secured by good bond , which is called binding to the peace . see cromptons just . of peace , fol. . usque . and see frank-pledge and conservator of the peace time of peace , is when the courts of justice are open , and the judges and ministers of the same may by law protect men from wrong and violence , and distribute justice to all . coke on littl. fol. . b. peace of god , and the church ( pax dei & ecclesiae ) was anciently used for that rest and cessation , which the kings subjects had from trouble and sute of law between the terms . see vacation . pax dei , tempus dicitur cultui divino adhibitum , eaque appellatione omnes dies dominici festa & vigiliae censentur . spel. peace of the king ( pax regis ) anno rich. . stat . . cap. . is that peace and security , both for life and goods , which the king promiseth to all his subjects , or others , taken to his protection . see suit of the kings peace . there is also the peace of the church , for which see sanctuary , and the peace of the kings high-way , which is the immunity that the kings high-way hath from annoyance or molestation . see watling-street . the peace of the plough , whereby the plough and plough-cattle are secured from distresses ; for which , see fitz. nat. br. fol. . so fairs may be said to have their peace ; because no man may in them be troubled for any debt , elswhere contracted . pectorel ( car. . cap. . ) armor for the brest , a brest-plate , or petrel ; from the lat. pectus , a brest . peculiar ( fr. peculier , i. private , proper , ones own ) is a particular parish , or church , that hath jurisdiction within it self , for probat of wills , &c. exempt from the ordinary and bishops courts . the kings chappel is a regal peculiar , exempt from all spiritual jurisdiction , and reserved to the visitation , and immediate government of the king himself , who is supream ordinary . it is an ancient priviledge of the see of canterbury , that wheresoever any mannors or advowsons do belong to it , they forthwith become exempt from the ordinary , and are reputed peculiars , and of the diocess of canterbury . pecunia was anciently used for cattle , and sometime for other goods , as well as money . — interdicimus etiam ut nulla viva pecunia vendantur aut emantur , nisi infra civitates , & hoc ante tres fide les testes . emendat . wil. . ad leges edw. confess . — qui habuerit denariatus vivae pecuniae . and in domesday , pecunia is often used pro pecude . pedage ( pedagium & pedaticum ) signifies money given for the passing by foot or horse through any countrey . pupilla oculi parte . cap. . pedagium a pede dictum est , quod a transeuntibus solvitur , &c. cassan . de cons . burgun . pag. . pedagia dicuntur quae dantur a transeuntibus in locum constitutum a principe . spel. péer ( pera , fr. pierre , saxum , quod e saxis fieri solebat ) is a fortress made against the force of the sea , or great rivers , for the better security of ships that lie at harbor in any haven . so is the peer of dover described in cam. britan , pag. . anno car. . cap. . péerage , the dignity of the lords or peers of the realm ; also , an imposition for maintenance of a sea-peer . péers ( pares ) are those that are empanelled in an enquest upon any man , for the convicting or clearing him of any offence , for which he is called in question . and the reason is , because the custom of our nation is , to try every man in this case by his equals or peers . westm . . cap. . so kitchin useth it fol. . in these words — mais si le amerciament soit affirre per pares — . but this word is cheifly used for those that are of the nobility of the realm , and lords of the parliament . stamf. pl. cor. lib. . cap. trial per les peers . the reason whereof is , because , though there be a distinction of degrees among our nobility , yet in all publick actions they are equal , as in their voices in parliament , and in passing upon the tryal of any nobleman . pegen . see forathe . pein fort & dure . see pain for t & dure . pelfe ( pelfra ) — tho. venables arm. clamat ( quod si aliquis tenent . sive resident . infra dominium sive manerium de kinderton feloniam fecerit , & corpus ejus per ipsum thomam super factum illud captum , & convict . fuerit ) habere pelfram : viz. omnia bona & cattalla bujusmodi seisire : et ea quae domino comiti pertinent ad castrum cestriae praesentare , & habere omnia invent . domestica , & de omni genere boum , vaccarum , boviculorum , juvencarum , porcorum , bidentium unum viz. melius : et si de aliquo genere non habuerit nisi unum , clamat habere illud unum , cum aliis minutis animalibus , ut gallis , gallinis , aucis & hujusmodi , & omnes pannos talliat . & attaniatos , & omnes carnes attaniat . & totum brasium infra unum quarterium , & omnia blada inventa infra unum quarterium ; & de quolibet tasso bladi clamat habere groundstal integrum cujuscunque tassi , & totum plumbum extra fornacem , & omnia vasa lignea , omnes mappas , manutergia , & omnia ad lectum pertin . linea & lanea , & omnes carrectas ferro non ligatas , & omnes carrucas cum tota apparura , &c. plac. in itin. apud cestriam hen. . pellota ( fr. pelote ) the ball of the foot. talis autem expeditatio ( viz. canum ) fiat per assisam communiter usitatam , viz. quod tres ortelli abscindantur , sive pellota de pede anteriori . char. de foresta , cap. . see cokes instit . part . fol. . peltwool , is the wool pulled off the skin or pelt of a dead sheep . anno hen. . cap. . penigeldum , denarii alicujus ex quavis consuetudine pro facultate aliqua , vel privilegio habendo , puta in foresta aut alibs spel. penistons , a certain course woollen cloth , mentioned anno eliz. cap. . penne. see bay. penon ( fr. pennon ) a standard , banner , or ensign carried in war. anno rich. . cap. . pension ( pensio ) that which in the two temples , is called a parliament , in lincolns-inn , a council ; in greys-inn , is called a pension ; that is , an assembly of the members of the society , to consult of the affairs of the house . and pensions are in the inns of court , certain annual payments of each member to the house . pension-writ . when a pension-writ is once issued , none , sued thereby in an inns of court , shall be discharged or permitted to come in commons , till all duties be paid . order in greys-inn . whereby it seems to be a writ issued out against those of the society , who are in arrear for pensions , and other duties . pentecostals ( pentecostalia ) were certain pious oblations made at the feast of pentecost , by parishioners to their parish priest , and sometimes by inferior churches or parishes , to the principal mother-church . which oblations were also called whitson farthings , and were divided into four parts ; one to the parish priest , a second to the poor , a third for repair of the church , and the fourth to the bishop . stephens of procurations and pentecostals . peny ( sax. penig ) was our ancient currant silver . inst . fol. . — et quod sint quieti de omnibus misericordiis , & warda , & ward-peny , averpeny , & hundred-peny , ●ithing-peny , & borthal-peny , & de omnibus operibus castellorum , pontium , &c. char. hen. . ab. & convent . eccles . s. petri westm . anno regni . per , cui & post . see entry . perambulation of the forest , is the surveying or walking about the forest , or the utmost limits of it , by certain justices or other officers thereto assigned , to set down the metes and bounds thereof , and what is within the forest , and what without . anno car. . cap. . and car. . cap. . see inst . fol. . and see purlue . perambulatione facienda , is a writ , that is sued out by two , or more lords of mannors , lying near one another , and consenting to have their bounds severally known ; and is directed to the sheriff , commanding him to make perambulation , and to set down their certain limits . see fitz. nat. br. fol. . and the new book of entries , verbo , perambulatione facienda . peravail . see paravail . perch ( pertica ) is used with us for a rod or pole of sixteen foot and a half in length , whereof forty in length , and four in bredth , make an acre of ground . cromp. juris . fol. . but several counties differ herein , as in staffordshire twenty four foot ; in the forest of sherwood twenty five foot go to the perch . in herefordshire a perch of walling is sixteen foot and a half ; a perch of ditching twenty one foot , &c. see skene , verbo , perticata terrae . in honore de montgomeri terrae assartandae per perticam regis pedum . claus . hen. . m. . in foresta de cank pertica pedum . int. plac. hill. edw. . staff. . see pes forestae . — per perticam pedum in foresta nostra de clarendon . mon. angl. par. fol. . b. perdonatio utlagariae , is a pardon for him , who , for contempts in not coming to the kings court , upon his command and process , is outlawed , and afterwards of his own accord yields himself to prison . reg. of writs , fol. . ll. edw. conf. cap. . & . pere & pite . si quis autem contra primarium pugnaverit , in placito emendet secundum pretium sui ipsius , quod angli pere & pite dicunt , & solvat primario sol . constitut . canuti de foresta , cap. . rectius autem were & wite , saxonice ƿere & ƿite . see were . peremptory ( peremptorius ) joyned with a substantive , as action or exception , signifies a final and determinate act , without hope of renewing or altering . so fitzherbert calls a peremptory action . nat. br. fol. . & . and nonsute peremptory , fol. . a peremptory exception . bracton , lib. . cap. . smith de repub. angl. calls that a peremptory exception , which maketh the state and issue in a cause . perinde valere , is a dispensation granted to a clerk , who being defective in his capacity to a benefice , or other ecclesiastical function , is de facto , admitted to it . and it takes appellation from the words , which make the faculty as effectual to the party dispensed with , as if he had been actually capable of the thing , for which he is dispensed with , at the time of his admission . anno hen. . cap. . it is called a writ . perjury ( perjurium ) est mendacium cum juramento firmatum ; is a crime committed , when a lawful oath is ministred , by any that hath authority , to any person in any judicial proceeding , who sweareth absolutely and falsly in a matter material to the issue or cause in question , by their own act , or by the subornation of others . and if a man call me perjur'd man , i may have my action upon the case ; because it must be intended contrary to my oath , in a judicial proceeding ; but for calling me a forsworn man , no action lies , because the forswearing may be extra judicial . cokes inst . part. fol. . hen. . cap. . excepted out of the act of general pardon , car. . cap. . how punished in wales . anno hen. . cap. . and eliz. cap. . per my & per tout , a joynt-tenant is said to be seised of the land he holds joyntly per my & per tout . i. he is seised by every parcel , and by the whole . littl. sect . . totum tenet & nihil tenet , sc . totum conjunctim & nihil per se separatim . bract. lib. . . permutatione archiodecanatus & ecclesiae eidem annexae cum ecclesia et prebenda , is a writ to an ordinary , commanding him to admit a clerk to a benefice , upon exchange made with another . reg. of writs , fol. . pernor of profits ( from the fr. preneur , a taker or receiver ) is he that takes or receives the profits . anno hen. . cap. . pernour de profits , & cesti que use , is all one . coke , lib. . casu chudley , fol. . see the statute rich. . cap. . and coke on littl. fol. . b. pernancy ( from the fr. prendre , to take ) a taking or receiving . tithes in pernancy , i. tithes taken , or that may be taken in kinde . per quae servitia , is a writ judicial , issuing from the note of a fine , and lies for the cognizee of a mannor , seigniory , cheif rent , or other services , to compel him that is tenant of the land at the time of the note of the fine levied , to atturn to him . west , part . symbol . tit . fines , sect . . see the new book of entries . perquisite ( perquisitum ) signifies any thing gained by ones own industry , or purchased with ones own money ; contradistinguished from that which descends to one , from father , or other ancestor ; as perquisitum facere , in bracton , lib. . cap. . num . . perquisites of court , are those profits that arise to the lord of a mannor , by vertue of his court baron , over and above the certain and yearly profits of his land , as fines of copiholds , hariots , amerciaments , waiffs , estrayes , &c. perkins , fol. . & . personable ( personabilis ) signifies as much as inabled to hold or maintain plea in a court : as , the demandant was judged personably to maintain this action . old nat. br. fol. . and in kitchin , fol. . the tenant pleaded , that the wife was an alien born in portugal , without the ligeance of the king , and judgment was asked , whether she should be answered . the plaintiff saith , she was made personable by parliament , that is , as the civilians would speak it , habere personam standi in judicio . personable is also as much as to be of capacity to take any thing granted or given . plowden , casu , colthirst , fol. . b. personal ( personalis ) being joyned with things , goods , or chattels , as things personal , goods personal , chattels personal , signifies any moveable thing belonging to any man , be it quick or dead . so it is used in west , par . . symbol . tit . indictments , sect . . in these words . theft is an unlawful felonious taking away another mans moveable personal goods . and stamf. pl. cor. fol. . contrectatio rei alienae is to be understood of things personal , for in things real it is not felony , as the cutting a tree is not felony . see chattels . personal tithes , are tithes paid of such profits as come by the labor and industry of a mans person ; as by buying and selling , gains of merchandise and handicrafts men , &c. see tithes . personalty ( personalitas ) is an abstract of personal . the action is in the personalty ( old nat. br. fol. . ) that is , brought against the right person , or the person against whom in law it lieth . persons ne praebendaries ne seront charges as quinsimes , &c. is a writ that lies for prebendaries , or other spiritual persons , being distrained by the sheriff or collectors of fifteenths , for the fifteenth of their goods , or to be contributory to taxes . fitz. nat. br. fol. . . perticata terrae , is the fourth part of an acre ; continet in integra superficie perticas . see perch . perticulas . the king granted to luke macgnin de insula de man scholari , quandam eleemosinam vocatam perticulas , ad sustentationem cujusdam pauperis scholaris de insula praedicta ad exercend . scholas , per progenitores nostros , quondam reges angliae datam & concessam . pat. hen. . m. . pertinens , was anciently used pro cognato vel consanguineo . — si quis cum pertinente sua jaceat , emendet hoc secundum cognationis modum ; sit wera , sit wita , sit omni pecunia . ll. canuti . ms. ca. . pervise , or parvise . ( pervisus , parvisia ) non a parvus adiect sed a gal. le parvis , — sed tunc placitantes ( i. post meridiem ) se devertunt ad pervisum , & alibi consulentes cum servientibus ad legem & aliis consiliariis suis . fortescu de laudibus ll. angl. ca. . pa. . of which thus chaucer . prolog . . a serjeant at law , ware and wise , that often had been at the parvise . nam ibi legis-periti convenere , ut clientibus occurrerent , non ad tyrocinia juris , quas motas vocant , exercenda , sayes spelman . selden ( in his notes on fortescu , pa. . ) sayes , it signifies an afternoons exercise , or moot for the instruction of young students , bearing the same name originally with the parvisiae in oxford . mr. somner sayes pervise signifies palatii atrium vel area illa , a fronte aulae westm . hodie the palace-yard , vulgo nuncupata . see his gloss . in x. scriptores , verbo , triforium . pes forestae . notandum est quod pes forestae usitatus tempore ric. oysell in arrentatione vastorum , factus est , signatus & sculptus in pariete cancellae ecclesiae de edwynstone & in ecclesia b. mariae de nottingham ; et dictus pes continet in longitudine octodecim pollices . et in arrentatione quorundam vastorum , pertica , & pedum usa fuit , &c. ex regist . abb. de novoloco in com. nott. pesage , ( pesagium ) custom paid for weighing wares or merchandise . ms. temp . e. . for peisa we find used for pondus ; hence to peise or poise , ponderare . pessona , mast . md. quod anno regni regis hen. filii regis joh. . dominus de fretchevil & homines sui in bosco de derley , apud cruche , pessonam , scil . glandes & nuces , virgis & cortis excussisset ; & querela inde deducta in comitatu , &c anno gratiae . mcclxiii . mon. angl. par. fo . . b. so tempore pessonae often occurs , for mast-time , or the season when mast is ripe ; which , in norfolk , they call shacking-time . — quod habeat decem porcos in tempore de pesson in boscomeo , &c. fo . . . pestarable wares , seem to be such wares or merchandise as pester , and take up much room in a ship. anno hen. . ca. . peter-corne — rex athelstanus concessit deo & beato petro ebor. & colideis praedictis de qualibet caruca arante in episcopatu eboraci unam travam bladi , anno domini ; quae usque in praesentem diem dicitur peter-corne . ex reg. s. leonardi ebor. in bibl. cottoniana . fo . . a. peter-pence , ( denarii sancti petri ) otherwise called in the saxon romefeoh , i. the fee of rome , also rome-scot , and romepennyng , ) was a tribute given by inas king of the west-saxons , being in pilgrimage at rome in the year of our lord , towards the maintenance of a saxon-school , which was a peny for every house . lamb. expl. of saxon words , verbo nummus . and fo . . in st. edwards laws , num . . thus — omnes qui habent denariatus vivae pecuniae in domo sua , de suo proprio , anglorum lege dabit denarium sancti petri , & lege danorum , dimidiam markam : iste vero denarius debet summoniri in solemnitate apostolorum petri & pauli , & colligi ad festivitatem , quae dicitur ad vincula , ita ut ultra illum diem non detineatur , &c. king edgars lawes , fo . . ca. . contain also a sharp constitution touching this matter . see romescot . st. peter ad vincula , ( anno edw. . ca. . & ed. . ca. . ) see gule of august . petit cape . see cape . petit larceny , ( parvum latrocinium . ) see larceny . petit-treason , ( fr. petit trahizon . i. proditio minor , ) is treason of a lesser or lower kind ; for , whereas high-treason is an offence committed against the person of the king , and the security of the king and common-wealth : petit-treason is , where a servant kills his master , a wife her husband , a secular , or religious man his prelate , anno edw. . ca. . whereof see cromptons just . of p. fo . . and , for the punishment of it , the stat. hen. . ca. . petition , ( petitio ) signifies in general a supplication made by an inferior to a superior , and especially to one having jurisdiction , anno car. . ca. . petra lanae , a stone of wool. see stone . petty-fogger , ( from the fr. petite , small ; and sax. fogere , a wooer , suiter , or solliciter ) a silly advocate , a petty attorney , or lawyer ; or rather a trouble-town , having neither law nor conscience . pharos , a watch-tower . — no man can build or erect light-houses , pharos , sea-marks , or beacons , without lawful warrant and authority . inst . fo . . philiser . see filazer . picards , a kind of great boats of fifteen tun or upwards , on the river severne , mentioned & hen. . ca. . also a fishers boat , anno eliz. ca. . piccage , ( piccagium , from the fr. piquer , i. effringere , effodere ) money paid in fairs to the lord of the soil , for leave to break the ground to set up booths , stalls or standings . piccage . i. aliquis veniens ad forum nostrum de rudham cum rebus suis , & frangendo vel pictando aliquam placcam in dicto foro , prior habebit inde redemptionem . ex registro priorat . de cokesford . pickards , — no person shall use any iron cards , or pickards , in rowing any woollen cloth , upon pain to forfeit the same , and xx s. for every offence . anno & edw. . ca. . picle , alias pightel , ( pictellum & pightellum ) a small parcel of land enclosed with a hedge , a little close ; perhaps from the italian picciola , i. minutus ; which the common people in some parts of england do usually call a pingle . piepowder court , ( curia pedis pulverizati , ) from the fr. pied ▪ i. pes , & pouldreux . i. pulverulentus ) is a court held in fairs , to yield justice to buyers and sellers , and for redress of all disorders committed in them . so called , because they are most usual in summer , and suiters to this court are commonly country clownes with dusty feet ; or , from the expedition intended in the hearing of causes proper thereunto , before the dust goes off the plaintiffs and defendants feet . of this court read the statute edw. . ca. . inst . fo . . and cromp. jur. fo . . this among our old saxons was called ceapung-gemot , i. a court for merchandise , or handling matters of buying and selling . see justices of the pavilion . pig of lead . see fother . pike or pick. see polein . pille of foddray , or fouldrey , in the county of lancaster , anno hen. . ca. . seems to be a defence built on a creek of the sea , and called pille , by the idiom of the country , for a pile or fort , built for the safegard or protection of any place . this pile was erected there by the abbot of fornesse in the first year of edw. . cam. brit. rex — dedimus henrico comiti northumb. insulam , castram , pelam & dominium de man , &c. ror . pat. hen. . m. . pillory , ( collistrigium , q. collum stringens . pilloria , from the fr. pilleur , i. depeculator ) is an engin made of wood to punish offenders , well known . by the statute of hen. . you may see who were then subject to this punishment . in the laws of canutus , ca. . it is called halsfange . sir henry spelman says , 't is supplicii machina ad ludibrium , magis quam paenam . — item utimur tenere statuta pistorum omnino sicut antecessores nostri tenuerunt , viz. quod si pistor in male agendo puniatur per tres vices , & si post terciam monicionem culpabilis inveniatur , balivi capitales , si ipsum poterint invenire , ipsum capiant & pro toto puniant , & habebit vile & odibile judicium de collistrigio , i. the pillory . ms. codex de ll. & consuetud . burgi-villae montgom . a temp . hen. . fo . . b. see healfange . pioneers , ( fr. pionniers , i. fossores ) such labourers as are taken up for the kings army , to east up trenches , or undermine forts . anno & ed. . ca. . pipe , ( pipa ) is a roll in the exchequer , otherwise called the great roll , anno ed. . ca. . see clerk of the pipe. it is also a measure of wine or oyle , containing half a tun , that is , six score and six gallons , an. r. . ca. . pirate , ( pirata ) is now generally taken for one who supports himself by pillage and depredation at sea , a sea-rover . but , in former times the word was sometimes attributed to such person to whose care the mole or peer of any haven , ( in latin pera ) was intrusted ; and sometimes also taken pro milite maritimo , according to the learned spelman ; mentioned car. . ca. . and the punishment of them , anno hen. . ca. . piscary , ( piscaria ) from the fr. pescharie , i. piscatio ) is a liberty of fishing in another mans waters . universis persentes literas inspecturis edmundus filius inclitae recordationis henr. regis angliae salutem . sciatis nos dedisse & concessisse henrico howeyn de huttokeshather totam piscariam nostram in stagno nostro supra molendinum suum de huttokeshather . habendum , &c. in cujus rei testimonium praesenti scripto , in modum cyrographi confecto , nos & dictus henr. sigilla nostra alternatim● apposuimus . dat. apud tuttebir . per manum hugonis de gien clerici nostri octavo die julii , anno regni regis edwardi germani charissimi xi . penes walterum kirkham-blount bar. pitance , ( pitancia ) a small repast , or a little refection of fish or flesh . joannes dei gratia , &c. noverit , &c. nos assensum nostrum praebuisse , &c. de manerio de mildenhall , quod manerium sancto edmundo , sicut jus suum concessimus , &c. ita quod qui , pro tempore sacrista fuerit , 〈◊〉 . de redditu altaris annuatim persolvat hospitali s. salvatoris quod est extra muros sancti edmundi , &c. in usus pauperum , &c. & s. ad refectionem monachorum , qui illis diebus officia divina pro defunctis celebrabunt , quae refectio pitancia vocatur . rot. cart. de anno . regis joh. pa. . num. . pitching-pence , is that money , commonly a peny , which is paid for pitching , or setting down every bag of corn , or pack of any other merchandise in fairs or markets . placard , ( fr. anno & ph. & ma. ca. . ) is a licence whereby a man is permitted to shoot in a gun , or to use unlawful games ; in french it signifies a table , wherein laws , orders , &c. are written and hung up . and placcaert in the low-dutch is an edict or proclamation . placeta , i have seen in several deeds of edward the thirds dayes , grants of placeta messuagii , placeta prati , & placeta pasturae ; and seems to signifie a piece or parcel , if of lands ; and a place , if a house or messuage . plaint , ( fr. plainte , lat. querela ) is the propounding or exhibiting any action real or personal , in writing : so it is used in brooke , tit . plaint in assize . and the party making this plaint is called plaintiff ; kitchin , fo . ● . plate , a hoy , or water-vessel so called anno eliz. ca. . plea , ( from the sax. pleo , or pleoh , i. juris actio ) signifies that which either party alledges for himself in court , which from the conquest was done in french , till edward the third ordained them to be pleaded in english , but to be entred and recorded in latin , anno . ca. . they are divided into pleas of the crown , and common-pleas ; pleas of the crown are all sutes in the kings name against offences committed against his crown and dignity . stamf. pl. cor. ca. . or against his crown and peace . smith de repub. ang. lib. . ca. . and those seem to be treasons , felonies , misprisions of either , and mayhem , cokes part inst . ca. . — edward the first enfcossed walter de burgo in the land of ulster in ireland , &c. excepting the pleas of the crown , to wit , rape , forstal , willful firing , and treasure trove . cam. tit . ireland . common-pleas are those that are agitated between common persons ; yet , by the former definitions those must comprize all other , though the king be a party . plea may farther be divided into as many branches as action , for they signifie all one . then is there a forrein plea , whereby matter is alledged in any court that ought to be tryed in another . as if one lay bastardy to another in a court baron , kitchin , fo . . by the law of scotland four crimes are called the four points or pleas of the crown ; willful firing , ravishing of women , murder and robbery , or riefe . skene . pleas of the sword , ( placita ad gladium ) ranulph the third , earl of chester ( hen. . ) granted to his barons of cheshire an ample charter of liberties , exceptis placitis ad gladium meum pertinentibus , &c. rot. pat. in archivis regiis infra castellum cestriae , ed. . m. . the reason was , because king william the first gave the earldom of chester to his kinsman hugh , commonly called lupus , ancestor to this earl ranulph , tenere ita libere per gladium , sicut ipse rex willielmus tenuit angliam per coronam . and consonant thereunto , in all inditements for felony , murder , &c. in that county-palatine , the form was anciently — contra pacem domini comitis , gladium & dignitates suas . pledge , ( plegius ) fr. pleige , i. fidejussor ) a surety or gage ; and plegiatio was used for the act of suretiship . pleiger aucun , i. fide jubere pro aliquo . glanvile , lib. . ca. . plegii dicuntur personae qui se obligant ad hoc , ad quod qui cos mittit tenebatur . grand gust . norm . ca. . this word plegius is sometimes used also for frankpledge , as in the end of william the conquerors laws . omnis homo qui voluerit se teneri pro libero , sit in plegio , ut plegius eum habeat ad justiciam , si quid offenderit , &c. and these are called capital pledges . kitchin , fo . . see frankpledge , and inst . fo . . plegiis acquietandis , is a writ that lies for a surety against him for whom he is surety , if he pay not the money at the day , fitz. nat. br. fo . . reg. of writs , . plena forisfactura , and plena ●●ita . see for feiture . plenarty , is an abstract o● the adjective plenus , and is used in matters of benefices ; wherein plenarty and vacation are directly contrary . stamf. praerog . ca. . fo . . westm . . ca. . institution is a good plenarty against a common person , but not against the king , without induction . coke on litt. fo . . plevin , ( plevina , from the fr. pleuvine , i. a warrant , or assurance . ) see replevin . plite of lawn , ( anno ed. . ca. . ) seems to be a measure then in use , as yard or ell now . plonkets , ( anno rich. . ca. . ) a kind of course woollen cloth , otherwise called vervise . plow-almes , ( eleemosinae araetrales ) which was anciently d. paid to the church for every plow-land . — de qualibet caruca juncta inter pascha & pentecostem unum donarium , qui dicitur plou-almes , . par. mon. ang. fo . . plow-land , ( carucata terrae ) the same with a hide of land , which vide . plurality , ( pluralitas ) anno hen. . ca. . morenesse , or the having more then one ; most applyed to such churchmen , who have more benefices then one . selden in his titles of honor , fo . 〈◊〉 . mentions also trialities and quadralities . pluries , is a writ that issues in the third place , after two former writs neglected or disobey'd . for , first goes out the original writ , which , if it speed not , then the sicut alias ; and , if that fail , then the pluries . see old nat. br. fo . . in the writ de excom . capiendo . see in what diversity of cases it is used in the table of the reg. of writs . pocket of wool , is half a sack. inst . fo . . see sack of wool. pole , see perch . poledavies , a kind of canvas , wherewith sail-ware is made , anno jac. ca. . polein , ( anno edw. . ca. . ) was a sharp or picked top set in the fore-part of the shoe or boot . this fashion was first taken up in the time of king william rufus , the picks being made so long , as they were tied up to the knees with silver or golden chains , and forbidden by ed. . — tunc fluxus crinium , tunc luxus vestium , tunc usus calceorum cum arcuatis aculeis inventus est . malms . in wil. . policy of assurance , ( assecuratio ) is a course taken by those , who adventure wares or merchandise by sea ; whereby they , unwilling to hazard their whole adventure , do give some other person a certain rate or proportion , as , , or in the hundred , or such like , to secure the safe arrival of the ship , and so much wares at the place agreed on . so that , if the ship and wares miscarry , the assurers or insurers make good to the venturer so much as they undertook to secure ; if the ship arrive safely ; he gaines that clear , which the venturer agrees to pay him . and for the more certain dealing between them in this case , there is a clerk or officer ordained to set down in writing the effect of their agreement , called policy , to prevent any difference that might afterwards happen between them . this terme is mentioned anno 〈◊〉 eliz. ca. , and thereby allowed and established ; and car. . ca. . and is now many times used to insure mens lives in offices , who have paid great summs of money for the purchase thereof , and are insured from that adventure by a certain company of merchants , or citizens , for three or four per cent , subscribing , or under-writing the agreement policy , or insurance , who do among them share the praemium , or money given by the party insured , and run the hazard of it : such assurance or polices being not seldom also used in other matters , where loss or damage is feared . poll-money , ( capitatio ) was a tax or imposition ordained by stat. car. . ca. . and ejusdem , ca. . by the first of which every subject in this kingdom was assessed by the head or poll , according to his degree ; as every duke l. marquess l , &c. baronet l. knight l. esquire l , &c. and every single person d , &c. and , that this is no new tax appears by former acts of parliament , where , quilibet tam coniugatus quam solutus utriusque sexus pro capite suo solvere cogebatur . parliam . anno . walsingham . ypod. . l. . there was anciently ( sayes camden ) a personal tribute , called capitatio ( pol-silver ) imposed upon the poll or person of every one , of women from the th , of men from the th year of their age , in his notes upon coines . pollard , was a sort of money heretofore currant in england , which with crocards are long since prohibited . math. westm . in anno . pa. . pollards , crocards , staldings , eagles , leonines , and steepings , were ancient coines in england , but now disused and forgotten . inst . fo . . we also call those trees pollards , or pollengers , which have been usually crop'd , and therefore distinguish'd from timber-trees . see plowden , fo . . b. polygamus , is he that is married to two or more wives together , or at the same time . inst . fo . . pone , is a writ , whereby a cause , depending in the county , or other inferior court , is removed to the common bench. old nat. br. fo . . see the table of the reg. of writs . pone per vadium , is a writ , commanding the sheriff to take surety of one for his appearance at a day assigned ; of this see five sorts in the table of the reg. judic . verbo , pone per vadium . ponendis in assists , is a writ , founded upon the statute of westm . . ca. . and articuli super chartas , ca. . which statutes shew what persons sheriffs ought to impanel upon assizes and juries , and what not ; as also what number , which see in reg. of writs , fo . . a. and fitz. nat. br. fo . . b. ponendum in balliam , is a writ willing that a prisoner be bailed in cases bailable . reg. of writs , fo . . ponendum sigillum ad exceptionem , is a writ whereby the king willetn 〈◊〉 justices , according to the stat. of westm . . to put their scals to exceptions laid in by the defendant against the plaintiffs declaration , or against the evidence , verdict , or other proceedings before the justices . pontage , ( pontagium ) is a contribution towards the maintenance or reedifying of bridges , westm . . ca. . anno ed. . it may also signifie toll taken to this purpose of those that pass over bridges , anno hen. . ca. . hen. . ca. . & eliz. ca. . per pontagium clamat esse quiet . de operibus pontium . plac. in itin. apud cestriam hen. . pontibus reparandis , is a writ directed to the sheriff , &c. willing him to charge one or more to repair a bridge , to whom it belongs , reg. of writs , fo . . b. porca . see ridge of land. porcary , ( porcaria ) a swinesty . fleta : porter of the door of the parliament-house , is a necessary officer belonging to that high high court , and enjoys the priviledges accordingly , cromp. iurisd . fo . . porter in the circuit of justices , is an officer that carries a verge or white rod before the justices in eyre ; so called a portando virgum , anno edw. . ca. . see vergers . port-greve , ( sax. port-gerefe , i. portus vel urbis praefectus ; port in the saxon signifies the same with civitas , and gerefe , or reve , a collector of the rents , ( as in divers lordships at this day , ) is a chief magistrate in certain maritime towns ; and , ( as camden sayes in his britan. pa. . ) the chief magistrate of london was so termed ; in stead of whom richard the first ordained two bailiffs ; but , presently after him king john granted them a mayor for their yearly magistrate . carta willielmi conquestoris civitat . london . william , king , grete william bishop , and godfrey portgreve , and all the bnrgeis within london , french and english . and i graunt you , that i will rhat ye be all your law worth , that ye were edwardis dayes the king. and i wyl that ich child be his faders eyer , and i nil suffer , that ony man you any wrongys beed . and god you kepe . ex libro pervetusto , penes will. king , ar. portioner ( porconarius , or portionarius , ) — pateat universis quod ego iohannes botelere , porconarius secundae portionis ecclesia de bromyord , dedi — dat . ric. . where a parsonage is served by two or sometimes three ministers alternately , as bromyard , supra , burford in shropshire , &c. the ministers are called portioners , because they have but their portion or proportion of the tythes or profits of the living . portmen ( anno eliz. cap. . ) the twelve burgesses of ipswich , are so called . also the inhabitants of the cinque ports are so termed , according to camdens britannia . portmote ( from the sax porte , i. portus & gemot , i. conventus ) is a court kept in haven-towns or ports ; as swainmot in the forest . manwood , par . . pag. . it is called the portmoot court. anno eliz. ca. . curia portmotorum , est curia in civitate cestriae coram majore in aula motorum tenenda . pl. in itin. ibid. hen. . portsale ( anno hen. . cap. . ) is the sale of fish , presently upon its arrival in the port or haven . possession ( possessio , quasi , pedis positio ) is twofold , actual , and in law : the first is , when a man actually enters into lands or tenements to him descended ; the other , when lands or tenements are descended to a man , and he hath not as yet actually entred into them . before , or until an office is found of lands escheated by attainder , 〈◊〉 king hath onely possession in law , and not in deed. stamf. praerog . fol. . there is also an unity of possession , which the civilians call consolidationem : as if the lord purchase the tenancy held by heriot service , the heriot is extinct by unity of possession ; because the seigneury and tenancy are now in one mans possession . kitchin , fol. . see other divisions of possession in bracton , lib. . cap. . post . see per. post conquestum , was first inserted in the kings title by edward the third , anno . claus . edw. . in dorso . m. . post diem , is a fee by way of penalty upon a sheriff for his neglect in returning a writ after the day assigned for its return ; for which , the custos brevium hath four pence , whereas he hath nothing , if it be returned at the day ; sometimes taken for the fee it self . post disseisin ( post disseisina ) is a writ given by the statute of westm . . cap. . and lies for him that , having recovered lands or tenements by praecipe quod reddat , upon default , or reddition , is again disseised by the former disseisor . fitz. nat. br. fol. . see the writ that lies for this in the reg. of writs , fol. . a. post fine , is a duty belonging to the king , for a fine formerly acknowledged before him in his court , which is paid by the cognizee , after the fine is fully passed , and all things touching the same accomplished : the rate thereof is so much , and half so much as was paid to the king for the fine , and is collected by the sheriff of the county where the land lies , whereof the fine was levied , to be answered by him into the exchequer . post term , is a fee or penalty taken by the custos brevium of the court of common pleas onely , for the filing any writ by any attorney after the term , or usual time , in which such writs are returnable ; for which the custos brevium takes the fee of xx d. postea , is a return or certificat of the proceedings by nisi prius into the court of common pleas after a verdict , and there afterwards recorded . see plowden , casu , saunders , fol. . a. see an example of it in co●es rep. vol. . rowlands case , fol. . see custos brevium . posteriority ( posterioritas , the being or coming after or behinde ) is a word of comparison and relation in tenure , the correlative whereof is priority : for a man holding lands or tenements of two lords , holds of his ancienter lord by priority , and of his later lord by posteriority stamf. praerog . fol. . & . when one tenant holds of two lords , of the one by priority , of the other by posteriority , &c. old nat. br. fol. . see instit . fol. . postnati . — jac. it was by all the judges solemnly adjudged , that those , who , after the descent of the crown of england to king james , were born in scotland , were no aliens in england . as on the contrary , the antenati , or those born in scotland , before the said descent , were aliens here , in respect of the time of their birth . see calvins case , report . pot ( anno car. . cap. . ) a head-piece , for war. pot ashes ( anno car. . cap. . ) are made of the best wood-ashes , and used in the making of soap , some are made in england , but the best come from beyond sea. pound ( parcus ) signifies generally any strong inclosure to keep in beasts ; but especially a place of strength , to keep cattle that are distrained or put in for any trespass done by them , until they be replevied or redeemed ; and in this signification it is called a pound overt , or open pound , being built upon the lords waste , and is called the lords pound ; for he provides it for the use of himself and his tenants . see kitchin , fol. . it is divided into pound open , and pound close , pound open , or overt , is not onely the lords pound , but a backside , court , yard , pasture-ground , or whatever else , whither the owner of the beasts impounded may come to give them meat and drink , without offence , for their being there , or his coming thither . pound close is then the contrary , viz. such a one , as the owner cannot come unto , for the purpose aforesaid , without offence ; as some close-house , castle , fortress , or such like place . pound-breach . see pund-brech . poundage ( pondagium ) is a subsidy granted to the king , of all manner of merchandise of every merchant , denizen , and stranger , carried out of this realm , or brought into the same , to the value of twelve pence in every pound . this was granted to henry the sixth for term of his life , and to king charles the second , anno car. . cap. . pourallée . see purluc . pour fair proclamée , que nul inject fines ou ordures en fosses ou rivers pres cities , &c. is a writ directed to the mayor , sheriff , or bailiss of a city or town , commanding them to proclaim , that none cast filth into the ditches or places near adjoyning , and , if any be cast already , to remove it . this is founded upon the statute rich. . cap. . fitz. nat. br. fol. . pourpartie ( propars , propartis vel propartia , ) is contrary to pro indiviso ; for to make pourpartie , is to divide and sever the lands that fall to parceners , which before partition they hold joyntly and pro indiviso . old nat. br. fol. . pourpresture ( pourprestura ; from the fr. pourpris , a close or enclosure ) is thus defined by glanvile , lib. . cap. . pourprestura est proprie , quando aliquod super dominum regem injuste occupatur ; ut in dominicis regis , vel in viis publicis obstructis , vel in aquis publicis transversis a recto cursu ; vel quando aliquis in civitate super regiam plateam aliquid aedificando occupaverit , & generaliter , quoties aliquid fit ad nocumentum regii tenementi , vel regii viae vel civitatis . and by crompton in his juris . fol. . thus . pourpresture is properly when a man takes to himself or encroaches any thing , which he ought not , whether it be in any jurisdiction , land , or franchise ; and generally , when any thing is done to the nusance of the kings tenants . see kitchin , fol. . and manwood , par . . pag. . & par. . cap. . some authors make three sorts of this offence , one against the king , the second against the lord of the fee , the third against a neighbor , by a neighbor● see inst . fol. . & . pour seis●r terres la femme que tient en dower , &c. was a writ whereby the king seised the land , which the wife of his tenant in capite , deceased , had for her dowry , if she married without his leave , and was grounded on the statute of the kings prerogative . cap. . see fitz. nat. br. fol. . poursuivant ( from the fr. poursuivre , i. agere , persequi ) signifies the messenger of the king attending upon him in wars , or at the council table , or exchequer , or in his court , or at his chamber , to be sent upon any occasion or message ; as for the apprehension of a party accused or suspected of any offence . those that are used in marshal causes are called pursuivants at arms ; whereof there are four of special names , which see in the word herald . stow , speaking of richard the third his end , hath these words , pag. . his body was naked to the skin , not so much as one clout about him , and was trussed behinde a pursuivant at arms like a hog , or a calf , &c. pourveyor ( provisor , from the fr. pourvoire , providere , prospicere ) signifies an officer of the king or queen , that provides corn and other victual for their house . mentioned in magna charta , cap. . and other statutes ; but the office is restrained by stat. . car. . cap. . see pourveyance and achat . pourveyance ( fr. pourvoyance ) is the providing corn , fuel , victual , and other necessaries for the kings house . by stat. car. . cap. . it is provided , that no person or persons vp any warrant , commission , or authority , under the great seal , or otherwise , by colour of buying or making provision or purveyance for his majesty , or any quéen of england , for the time being , or that shall be ; or for his , their , or any of their houshold , shall take any timber , fuel , cattle , corn , grain , malt , hay , straw , uictual , cart , carriage , or other thing whatsoever , of any the subjects of his majesty , his heirs , or successors , without the full and frée consent of the owner or owners thereof , had , and obtained without menace or enforcement , &c. see the antiquity of praeemption and pourueyance , &c. and inst . fol. . power of the county ( posse comitatus ) according to lambert in his eiren. lib. . cap. . fol. . co 〈…〉 in s the aid and attendance of all knights , gentlemen , yeomen , laborers , servants , apprentises , and villains , and of other young men above the age of fifteen , within the county ; because all of that age are bound to have harness , by the statute of winchester . but women , ecclesiastical persons , and such as are decrepit , or labor with any continual infirmity , shall not be compelled to attend . for the stat. hen. . cap. . says , that persons able to travel shall be assistant in this service ; which is used , where a possession is kept upon a forcible entry , or any force or rescue used , contrary to the command of the kings writ , or in opposition to the execution of justice . powldavis . see poledavis . poynings law , is an act of parliament made in ireland by henry the seventh , and so called , because sir edward poynings was lieutenant there , when it was made ; whereby all the statutes in england were made of force in ireland , which before that time were not , neither are a●y now in force there , which were made in england since that time . see cokes rep. fol. . hill. jac. pray in ayd . see ayd . pratum falcabile , a meadow or mowingground . — jur. dicunt quod praedicta placea a tempore quo — fuit pratum falcabile , usque ad praedictum annum quod praedictus w. illud aravit . trin. edw. . in banco . rot. . prebend ( praebenda ) is the portion which every member or canon of a cathedral church , receives in right of his place , for his maintenance . canonica portio is properly used for that share , which every canon or prebendary receives yearly out of the common stock of the church ; and praebenda is a several benefice rising from some temporal land or church , appropriated towards the maintenance of a clerk or member of a collegiat church , ( as the prebends of keyton , and coupes at maldon ) and is commonly sirnamed of the place , whence the profit arises . prebends are either simple , or with dignity , simple prebends are those , that have no more but the revenue towards their maintenance : prebends with dignity , are such as have some jurisdiction annexed to them , according to the divers orders in every several church . of this see more in the decretals , tit . de praebendis & dignitat . praebenda , was also , in old deeds , used for provender . see corody . prebendary ( praebendarius ) is he that hath such a prebend ; so called a praebendo auxilium & consilium episcopo . precariae , days works , which the tenants of some mannors are bound to give the lord in harvest , which in some places are corruptly called bind days , for biden days , from the sax. bidan , to pray or intreat . baldwinus una bovata pro ii s. & dimd . & ii . gallinas , & xx ova , & iv precarias , in autumpno ; cum uno homine , bis arare , bis herciare , semel falcare , semel foenum levare , &c. mon angl. par . fol. . a. see bederepe . prece partium , is when a sute is continued by the prayer , assent , or agreement of both parties . anno edw. . cap. . precept ( praeceptum ) is commonly taken for a commandment in writing , sent out by a justice of peace , or other-like officer , for the bringing a person , or records before him ; of which , you have example of divers in the table of the register judicial : and sometimes for the command or provocation , whereby one man incites another to commit felony , theft , or murder . stamf. pl. cor. fol. . bracton ( lib. . tract . . cap. . ) calls it praeceptum or mandatum ; whence we may observe three diversities of offending in murder , praeceptum , fortia , consilium : praeceptum , being the instigation used before hand ; fortia , the assistance in the fact , as helping to binde the party murdered or robbed ; consilium , advise either before , or in the deed. praceptories ( praeceptoriae , anno hen. . cap. . ) were benefices in a kinde , and so termed , because they were possessed by the more eminent sort of the templers , whom the cheif master by his authority created and called praeceptores templi . stephens de jurisd . lib. . cap. . num . . of these praeceptories , i finde sixteen recorded , as anciently belonging to the hospitalers and templers in england , viz. cressing-temple , balshal , shengay , newland , yeveley , witham , temple-bruere , willinghton , rotheley , ovenington , temple-combe , trebigh , ribstane , mount s. john , temple-newsum ; and temple-burst . mon. angl. par . fol. . praecipe quod reddat , is a writ of great diversity , both in its form and use , for which see ingressus and entry . this form is extended as well to a writ of right , as to other writs of entry or possession . old nat. br. fol. . and fitz. nat. br. fol. . and it is sometime called a writ of right close , when it issues out of the court of chancery close ; sometimes a writ of right patent : as when it issues out of the chancery , patent , and open to any lords court for any of his tenants deforced , against the deforcer , and must be determined there . of which , read more at large in fitz. nat. br. ca. . pracipe in capite ( magna charta , ca. . ) was a writ issuing out of the court of chancery , for a tenant holding of the king in cheif , as of his crown , and not of the king , as of any honor , castle , or mannor . reg. of writs , fol. . b. precontract ( anno & edw. . ca. . ) is a contract made before another contract ; cheifly in relation to marriages . predial tithes ( decimae praediales ) are those which are paid of things arising and growing from the ground onely ; as corn , hay , fruits of trees , and such like . anno edw. . cap. . see cokes instit . fol. . preemption ( praeemptio ) was a priviledge allowed the kings purveyor , to have the choice and first-buying of corn , and other provision before others , for the kings house ; which is taken away by stat. car. . cap. . prelate ( praelatus ) we commonly understand to be an archbishop or bishop : but thus says the learned spelman , praelati ecclesiae vocantur nedum superiores ; ut episcopi , sed etiam inferiores , ut archidiaconi , presbyteri , plebani & rectores ecclesiarum . sic enim in bulla privileg . apud mat. par. in hen. . sub an. . innocentius , &c. universis tam cathedralium quam aliorum praelatis , nec non patronis ecclesiarum , clericis & laicis per regnum angliae constitutis salutem , &c. pag. . premisses . see habendum . premium ( praemium ) a reward or recompence . among merchants it is used for that sum of money , as eight or ten per cent. which the ensured gives the ensurer , for ensuring the safe return of any ship or merchandise . anno car. . cap. . praemunire , is taken either for a writ so called , or for the offence whereupon the writ is granted ; the one may be understood by the other . heretofore the church of rome , under pretence of her supremacy , and the dignity of s. peters chair , took upon her to bestow most of the bishopricks , abbathies , and other ecclesiastical livings of worth here in england , by mandates , before they were void ; pretending therein a great care to see the church provided of a successor , before it needed . whence it arose , that these mandates or bulls were called gratiae expectativae ; or provisiones , whereof you may read a learned discourse in duarenus ; de beneficiis , lib. . cap. . these provisions were so ri●e with us , that at last , king edward the third not disgesting so intollerable an encroachment , made a statute in the twenty fifth year of his reign , stat. . cap. . and another stat. . cap. . and a third anno . against those that drew the kings people out of the realm , to answer things belonging to the kings court ; and another anno stat. . cap. , . , & . whereby he greatly restrained this liberty of the pope ; who notwithstanding , still adventured to continue the provisions ; in so much , as king richard the second , likewise made a statute against them , anno . cap. . and in the thirteenth year of his reign , cap. . making mention of the said first statute of edward the third , ratifying the same , and appointing the punishment of those that offended against it , to be perpetual banishment , forfeiture of their lands , tenements , goods , and chattels , &c. and again in the sixteenth year of his reign , cap. . to meet more fully with all the shifts , invented to avoid the former statutes , he expressed the offence more particularly , and sets the same punishment to it , that he ordained in the last mentioned statute . after him , king henry the fourth , in like manner aggrieved at other abuses , not fully met with in the former statutes , in the second year of his reign , cap. . & . adds certain new cases , and lays upon the offenders in them , the same punishment ; whereto i refer you , as likewise to anno ejusdem , cap. . and hen. . cap. . and smith de repub. angl. lib. . cap. . some later statutes do cast this punishment upon other offenders , as namely the statute of eliz. cap. . upon him that denies the kings supremacy the second time ; and the stat. eliz. cap. . upon him that affirms the authority of the pope ; or refuseth to take the oath of supremacy ; and the stat. eliz. cap. . upon such as are seditious talkers of the inheritance of the crown , or affirm the queen to be an heretick . and the stat. car. . cap. . upon such as affirm the parliament begun at westminster , nov. . is not yet dissolved , or that there is any obligation by any oath , covenant , or engagement whatsoever , to endeavor a change of government , either in church or state , or that both or either house of parliament have , or hath a legislative power without the king. and the word is applied most commonly to the punishment first ordained by the statutes before mentioned , for such as transgressed them : for where it is said , that any man for an offence committed , shall incur a praemunire , it is meant , that he shall incur the same punishment , as is inflicted on those that transgress the stat. rich. . cap. . commonly called the statute of praemunire , which kinde of reference or application is not unusual in our statutes . as to the etymology of the word , some think it proceeds from the strength given to the crown , by the former statutes , against the usurpation of forein power ; which opinion may receive some ground from the stat. edw. . stat . . cap. . but others think it grows from the verb praemonere , being barbarously turned into praemunire , to forewarn or bid the offender take keed ; or from the severity or grievousness of the punishment . of which , a reason may be gathered from the form of the writ , in old nat. br. fol. . praemunire facias praefatum praepositum & j. r. procuratorem , &c. quod tunc sint coram nobis , &c. which words can be referred to none , but parties charged with the offence . see inst . fol. . prender ( from the fr. prendre , i. accipere ) is the power or right of taking a thing , before it is offered . — it lies in render , but not in prender . cokes rep. part. sir jo. peters case . prender de baron , signifies literally to take a husband ; but it is used as an exception , to disable a woman from pursuing an appeal of murder , against the killer of her former husband . stamf. pl. cor. lib. . cap. . prepensed ( praepensus ) forethought ; as prepensed malice ( malitia praecogitata ) when a man is slain upon a sudden quarrel , yet , if there were malice prepensed formerly between them , it makes it murder , or , as it is called ( in the stat. hen. . cap. . ) prepensed murder . see murder . and inst . fol. . praepositus ccclesiae . see church-reve . praepositus uillae , is used sometimes for the constable of a town , or petit-constable . cromp. juris . fol. . howbeit , the same author fol. . seems to apply it otherwise , for there quatuor homines praepositi , are those four men , that for every town must appear before the justices of the forest in their circuit . it is sometimes used for an head or cheif-officer of the king , in a town , mannor , or village , or a reeve . see reeve . animalia & res inventa coram ipso & sacerdote ducendae erant . ll. edw. conf. cap. . praerogative of the king ( praerogativa regis , from prae , i. ante , and rogare , to ask or demand : for though an act hath passed both houses of parliament , yet before it be a law , the royal assent must be asked and obtained ) is generally that power , preeminence , or priviledge , which the king hath over and above other persons , and above the ordinary course of the common law , in the right of his crown — potest rex ei , lege suae dignitatis , condonare si velit , etiam mortem promeritam . ll. edw. confess . cap. . the kings person is subject to no mans sute ; his possessions cannot be taken from him , by any violence or wrongful disseisin ; his goods and chattels are under no tribute , toll , or custom , nor distrainable ; with very many other regal rights , and priviledges . see stamf. praerog . and the statute of the kings praerogative , anno edw. . and plowden , casu , mines . spelman calls it lex regiae dignitatis . prerogative court ( curia praerogativa archiepiscopi cant. ) is the court wherein all wills are proved , and all administrations granted that belong to the archbishop , by his prerogative , that is , in case where the deceased had goods of any considerable value out of the diocess , wherein he died , and that value is ordinarily l. except it be otherwise by composition between the said archbishop , and some other bishop , as in the diocess of london it is l. and if any contention arise , touching any such will or administration , the cause is properly debated and determined in this court ; the judge whereof is called the judge of the prerogative court of canterbury . the archbishop of york hath also the like court , which is termed his exchequer , but far inferior to this in power and prosit . inst . fol. . prescription ( praescriptio ) is a title , taking its substance of use and time allowed by the law , as when a man claims any thing , because he , his ancestors , or they , whose estate he hath , have had , or used it all the time , whereof no memory is to the contrary ; or when , for continuance of time , whereof there is no memory , a particular person hath particular right against another particular person . kitchin , fol. . see coke on littl. fol. . b. but as in the civil law , so in the common , prescription may be in a shorter time , at least in some particular cases . for example , where the statute anno rich. . cap. . says , that a judge or clerk convicted for false entring of pleas , &c. may be fined within two years , the two years being past , he prescribes against the punishment of the said statute . so the statute anno hen. . says , that he , who will complain of maintenance or embracery , whereby perjury is committed by a jury , must do it within six days , those six days ended , the parties prescribe : and divers other statutes have the like limitations of time , whence may arise a like prescription . see action perpetual and temporal . see lamb. eiren. lib. . ca. . pag. . of this prescription , and the learning touching the same , you may read cokes rep. lutterels case , vol. . fol. . and latches rep. fol. . praescriptio est jus quoddam , ex tempore congruens , authoritate legum vim capiens , paenam negligentibus inferens & sinem litibus imponens . — quadragenalis praescriptio omnem prorsus actionem excludat . reformatio legum eccles . pag. . see inst . fol. . presentation ( praesentatio ) is used properly for the act of a patron , offering his clerk to the bishop , to be instituted in a benefice of his gift , the form whereof see in reg. of writs , fol. . a. see parson . presentée , is the clerk that is so presented by the patron . in the stat. rich. . cap. . mention is made of the kings presentee , that is , he whom the king presents to a church presentment , is a meer denunciation of the jurors themselves , or some other officer , as justice of the peace , constable , searcher , surveyor , &c. ( without any information ) of an offence inquirable in the court , whereunto it is presented . lamb. eiren. lib. . cap. . pag. . president ( praeses ) is used for the kings lieutenant in any province or function ; as president of wales , york , barwick , president of the kings council . anno. h●n . : ca. . and hen. . ca. . & . prest , is used for a duty in money to be paid by the sheriff , upon his account in the exchequer ; or for money left or remaining in his hands . anno & edw. . ca. . prest money , is so called of the french word prest , i. promptus , expeditus ; for that it binds those that receive it , to be ready at all times appointed , commonly meant of soldiers . anno hen. . . — hen. . . — hen. . and edw. : . prestation money ( praestatio , i. a performing or paying ) is a sum of money paid by archdeacons yearly to their bishop , pro exteriori jurisdictione . — et quieti sint a praestatione muragii . carta hen. . burgens . mountgomer . praestatio was also anciently used for pourveyance . see mr. phillips book on that subject , pag. . and see spiritualties . presumption ( praesumptio ) is of three sorts . . violent , which is many times plena probatio ; as if one be run through the body in a house , whereof he instantly dies , and a man is seen to come out of the house with a bloody sword , and no other man was at that time in the house . . probable , which moveth little . . levis seu temeraria , which moves not at all . so in case of a charter of feossment , if all the witnesses to the deed be deed , then violent presumption , which stands for a proof , is continual and quiet possession . coke on littl. lib. . ca. . sect . . praesumptio stat in dubio , it is doubted of , yet it is accounted veritatis comes quatenus in contrarium nulla est probatio , ut regula se habet ; stabitur praesumptio donec probetar in contrarium . presumption was anciently taken for intrusion . — assultus , roberia , sterbrech , praesumptio terrae vel pecunia regis , thesaurus inventus , &c. ll. hen. . cap. . de his quae sunt de jure regis . pretensed right ( jus pretensum ) is where one is in possession of lands or tenements , and another who is out , claims it ; and sues for it ; here the pretensed right or title is to be in him , who so does sue and claim . price . see value . pricked-bread . — molendinario septem panes de conventu & septem panes de pricked-bread . monast . angl. part. fol. . b. quaere . pride-gabel , in the mannor of rodeley in com. gloc. is paid to this day , as a rent to the lord of the mannor , by certain tenants , in duty and acknowledgment to him for their liberty and priviledge of fishing for lamprays in severn . ( prid for brevity , being the later syllable of lamprid , ( as anciently they were called ) and gavel , a rent or tribute . ) taylors hist . of gavelkind , fol. . primo beneficio . see beneficio . primage ( anno. hen. . ca. . ) is a duty due to the mariners and sailers for the loading of any ship at the setting forth from any haven , which is in some places a penny in the pound ; in others six pence per pack or bale , according to the custom of the place . primier seisin ( prima seisina , i. the first possession ) was a branch of the kings prerogative , whereby he had the first possession of all lands and tenements holden of him in cheif , whereof his tenant died seised in fee , and consequently the rents and profits of them , until the heir , if he were of age , did his homage , if under age , until he were . but all charges arising by primier seisins , are taken away by the stat. car. . cap. . prince ( princeps ) is sometimes taken for the king himself ; but more properly for the kings eldest son , who is prince of wales ; as the eldest son to the french king is called dauphine , both being princes by their nativity . ferns glory of generosity , pag. . before edward the second was born at carnarvan , and was the first prince of wales , the kings eldest son was called lord prince . stamf. praerog . ca. . fol. . see hen. . ca. . and ejusdem , ca. . principal ( principalium ) an heir-lome , quod vide . in urchenfield com. heref. certain principals , as the best beast , best bed , best table , &c. pass to the eldest childe , and are not subject to partition . also the cheif person in some of the inns of chancery is called principal of the house . see ancient . principality of chester . anno rich. . ca. . see county palatine , and cromp. jurisd . fol. . prior perpetual , or dative and removeable . anno rich. . ca. . and edw. . ca. . lord prior of saint johns of jerusalem . anno hen. . ca. . see abbot . priors aliens ( priores alieni ) were certain religious men , born in france , and normandy , and governors of religious houses , erected for outlandish men here in england ; which were by henry the fifth thought no good members for this land , and therefore suppressed ; whose livings were afterwards by henry the sixth , given to other monasteries and houses of learning , ( stows annals , pag. . and hen. . ca. . ) but specially to the erecting of those two famous colledges , called the kings colledges of cambridge and eaton . part inst . fo . . priority ( prioritas ) signifies an antiquity of tenure , in comparison of another less ancient . as , to hold by priority , is to hold of a lord more anciently than of another . old nat. br. fo . . so to hold by posteriority is used in stamf. praerog . ca. . fol. . the lord of the priority shall have the custody of the body , &c. cromp. juris . fol. . see posteriority . prisage ( prisa , fr. pris ) is that custom or share , that belongs to the king , or lord admiral , out of such merchandises as are taken at sea , by way of lawful prize , which is usually a tenth part . eliz. ca. . prisage of wines ( anno hen. . ca. . ) is a word almost out of use , now called butlerage , ( because the kings cheif butler receives it ) which is a custom whereby the king challenges out of every bark loaden with wine , containing twenty tuns or more , two tun of wine ; the one before , the other behinde the mast at his price , which is twenty shillings for each tun ; yet this varies according to the custom of the place , for at boston , every bark laden with ten tuns of wine , or above , pays prisage . see butlerage , and calthrops reports , fol. . and part inst . fol. . memorandum , quod rex habet ex antiqua consuetudine de qualibet nave mercatoris vini careat . applican . infra aliquem portum angliae de viginti doliis duo dolia & de decem doliis unum de prisa regia pro quodam certo ab antiquo constitut . solvend . p. rec. r. . prise ( prisa ) from the fr. prendre , i. capere ) signifies in our statutes the things taken of the kings subjects by purveyers . anno edw. . ca. . and ejusdem , stat . . ca. . it signifies also a custom due to the king. an. ejusdem , ca. . reg. of writs , fol. . b. in forancis paginis antiquis ( says the learned spelman ) prisae plerumque intelliguntur de annonae reique frumentariae captionibus aliis etiam necessariis , ad alenda instruendaque castrorum praefidia ; nec non & regiam familiam minori quam justo pretio agricolis areptis , &c. in rescripto quodam anno edw. . norf. ss . — rogerus de monte alto , qui sororem & haeredem hugonis de albeney , &c. desponsaverat , clamat habere libertates has subscriptas , viz. castellum suum de risinge cum prisis dierum , &c. ubi clausulam cum prisis dierum intelligo de libertate capiendi victualia quae vocant ad sustentationem praesidiarii militis castri sui , ita quod pretium reddat infra dies . see the stat. car. . ca. . prisoner ( fr. prisonnier ) signifies one that is restraiued of his liberty upon any action , civil , or criminal , or upon commandment . and a man may be prisoner upon matter of record , or matter of fact : prisoner upon matter of record , is he , who , being present in court , is by the court committed to prison , onely upon an arrest , be it by the sheriff , constable , or other . stamf. pl. cor. lib. . ca. . fol. & . privation ( privatio ) a bereaving or taking away : most commonly applied to a bishop , or rector of a church ; when by death , or other act , they are deprived of their bishoprick or benefice . see coke on littl. fol. . privy ( fr. privè , i. familiaris ) signifies him that is partaker , or hath an interest in any action , or thing ; as privies of blood , old nat. br. fol. . every heir in tail is privy to recover the land intailed . eodem , fol. . merchants privy , are opposite to merchant strangers . anno edw. . cap. . & . coke ( lib. . walkers case , fol. . and lib. . fol. . ) mentions four kinde of privies , viz. privies in blood , as the heir to his father ; privies in representation , as executors or administrators to the deceased ; privies in estate , as he in reversion , and he in remainder , when land is given to one for life , and to another in fee ; the reason is , for that their estates are created both at one time : the fourth is privy in tenure , as the lord by escheat , that is , when land escheats to the lord for want of heirs . the expositor of law-terms adds a fifth sort of privy , whom see , and coke on litt. lib. . ca. . sect. . privy-seal , ( privatum sigillum ) is a seal that the king useth to such grants , or other things as pass the great seal ; first , they pass the privy-signet , then the privy-seal , and lastly the great seal of england . the privy-seal is also sometimes used in things of less consequence , that do not at all pass the great one . no writs shall pass under the privy-seal , which touch the common-law . inst . fo . . priviledge , ( privilegium ) is either personal or real : a personal priviledge is that which is granted or allowed to any person , either against or besides the course of the common-law : as , a member of parliament may not be arrested , nor any of his menial servants in the time of parliament , nor for certain dayes before and after . a priviledge real is that which is granted to a place , as to the universities , that none of either may be called to westminster-hall , or prosecuted in other courts . see the new book of entries , verbo , priviledge . privilegium est jus singulare , hoc est , privata lex , quae uni homini vel loco , vel collegio & similibus aliis conceditur . privity , ( fr. privauté ) private familiarity , friendship , inward relation . if there be lord and tenant , and the tenant holds of the lord by certain services , there is a privity between them , in respect of the tenure . see privie . probat of testaments , ( probatio testamentorum ) is the exhibiting and proving last wills and testaments before the ecclesiastical judge , delegated by the bishop , who is ordinary of the place where the party dies . if all the deceased parties goods , chattels , and debts owing him were in the same diocess , then the bishop of the diocess , or the arch-deacon ( according as their composition or prescription is ) has the probat of the testament ; if the goods were dispersed in divers dioceses , so that there were any summ of note , ( as five pounds ordinarily ) out of the diocess where the party lived , then is the arch-bishop of canterbury ( or york ) the ordinary by his prerogative . this probat is made in two sorts , either in common form , or per testes ; the first , is onely by the oath of the executor , who swears upon his credality , that the will by him exhibited , is the last will and testament of the party deceased . per testes is , when , besides his oath , he also produceth witnesses , or makes other proof to confirm the same ; which later course is taken most commonly , where there is fear of strife or dispute about the testators goods : for , it is held that a will proved in common form onely , may be call'd in question any time within thirty years after . and , where a will disposes of lands , or tenements of freehold , it is now usually proved by witnesses in chancery . procedendo , is a writ , whereby a plea , or cause , formerly called from a base court to the chancery , kings-bench , or common-pleas , by writ of priviledge , or certiorari , is released , and sent again to the same court to be proceeded in there , after it appears that the defendant has no cause of priviledge , or that the matter comprised in the parties allegation on suggestion is not well proved . brooke , hoc titulo , and coke , vol. . fo . . see , anno rich. . ca. . letters of procedendo , granted by the keeper of the privy-seal . see in what diversity it is used in the table of the register of writs original and judicial . anno iac. ca. . process , ( processus , a procedendo ab initio usque ad finem ) is so called , because it proceeds ( or goes out ) upon former matter , either original or judicial ; and , has two significations : first , it is largely taken for all proceeding in any real or personal , civil or criminal action , from the original writ to the end . britton . fo . . secondly , we call that the process , by which a man is called into any temporal court , which is alwayes in the name of the king. see lamb. in his tractat of processes adjoyning to his eiren. divers kinds of process upon inditements before justices of the peace , see in cromp. iustice of p. fo . . special proces is that , which is especially appointed for the offence by statute . processum continuando , is a writ for the continuance of a process , after the death of the chief justice , or other justices in the writ or commission of oyer and terminer . reg. of writs , fo . . a. prochein amy , ( fr. prochain amie , proximus amicus ) is used for him that is next of kin to a child in his nonage , and is in that respect allow'd by law , to deal for him in managing his affairs ; as to be his guardian , if he hold in socage , and in the redress of any wrong done him . stat. westm . . ca. . and westm . . ca. . and is , in the prosecution of any action at law , per gardianum , where the plaintiff is an infant , and per proximum amicum , where the infant is defendant . see inst . fo . . proclamation , ( proclamatio ) is a notice publickly given of any thing , whereof the king thinks fit to advertise his subjects ; so is it used anno ric. . ca. . hen. . ca. . proclamation of rebellion is a writ so called , whereby publick notice is given , where a man , not appearing upon a subpaena , nor an attachment in the chancery , shall be reputed a rebel , if he render not himself by a day assigned in this writ . see commission of rebellion . proclamation of a fine , is a notice openly and solemnly given at all the assizes , held in the county within one year after the ingrossing it ; which proclamations are made upon transcripts of the fine , sent by the justices of the common-plees to the justices of assise , and of the peace . west , part . symbol . tit . fines . sect. . where also you may see the form of the proclamation . proclamare est palam & valde clamare . see proclamations in divers cases , new book of entries , verbo , proclamations . pro confesso , upon a bill exhibited in chancery , where the defendant appears , and is in contempt for not answering , and is in castody ; upon a habeas corpus ( which is granted by order ) to bring him to the bar , the court assignes him a day to answer , which being expir'd , and no answer put in , a second habeas corpus is likewise granted , and a further day assign'd , by which day , if he answer not , the bill , upon the plaintiffs motion , shall be taken pro confesso , unless cause be shew'd by a day , which the court does usually give ; and , for want of such cause shew'd upon motion , the substance of the plaintiffs bill shall be decreed , as if it had been confessed by the defendants answer . as it was the case of filmore and denny hill. . or , after a fourth insufficient answer made to the bill , the matter of the bill , not sufficiently answer'd unto , shall be taken pro confesso . proctors of the clergy , ( procuratores cleri ) are those , who are chosen and appointed to appear for cathedral or other collegiate churches , as also for the common clergy of every diocess , to sit in the convocation house in the time of parliament . the manner of their election see in cowels interpreter on this word . see prolocutor and convocation , and see inst . fo . . procurations , ( procurationes ) are certain sumnis of money which parish-priests pay yearly to the bishop or arch-deacon , ratione visitationis ; they were anciently paid in necessary victuals for the visitor and his attendants , but afterwards turn'd into money . procuratio is defin'd by vallensis , to be necessariorum sumptuum exhibitio , quae , ratione visitationis , debetur ab ecclesia vel monasterio ei cui ex officio incumbit jus & onus visitandi , sive is sit episcopus sive archidiaconus , sive decanus , sive legatus summi pontificis . anno . md. quod die mercurii in festo sancti lucae evang. dominus episcopus caepit procurationem suam in cibis & potibus apud bordesley , & pernoctavit ibidem . giff. fo . . b. see an historical discourse of procurations and synodals , printed anno . these are also called proxies ; as , archidiaconatus glouc. valet clare in proxis , cenag . & pentecostal . per an . — — . ex record primitiar . hen. . see dier , fo . . b. and claus . rot. ed. . m. . dorso . procuracy , ( anno rich. . stat. . ca. . ) see procurator . procurator , is used for him that gathers the fruit of a benefice for another man. anno rich. . stat. . ca. . and procuracy for the writing or instrument , whereby he is authorised . they are at this day in the west parts called proctors . procurors . see malveis procurors . profe , alias prove , is used for an enquest . anno ed. . ca. . profer , ( profrum , vel proferum , from the fr. proferer , i. producere , edicere , allegare , ) is the time appointed for the accompts of sheriffs , and other officers , in the exchequer , which is twice in the year . anno hen. . stat. . which may be gathered also out of the register , fo . . in the writ de attornato vicecomitis pro profro faciendo . we read also of profers , anno hen. . ca. . in these words ; trinity term shall begin the monday next after trinity sunday , whensoever it shall happen to fall , for the keeping of the essoines , profers , returns , and other ceremonies heretofore used and ke 〈…〉 . in which place profer signifies the offer or indeavor to proceed in an action by any man , concerned so to do . see britton . ca. . fo . . b. & . a 〈…〉 . b. and fleta , lib. . ca. . sect. utlagati & seq . — praeterea idem henricus de hastinggis , & antecessores sui solebant capere & de jure habere rationabiles expensas suas versus scaccarium singulis annis , pro duobus profris faciendis & uno compoto reddendo per annum , &c. escact . anno ed. . n. . profer the half-mark . see half-mark . profession , ( professio ) is used particularly for the entring into any religious order . new book of entries , verbo profession . prohibition , ( prohibitio ) is a writ to forbid any court , either spiritual or secular , to proceed in any cause there depending , upon suggestion , that the cognition thereof belongs not to the said court. fitz. nat. br. fo . . g. but , is now usually taken for that writ , which lies for one that is impleaded in the court christian , for a cause belonging to the temporal jurisdiction , or the cognisance of the kings court , whereby , as well the party and his counsel , as the judge himself and the register are forbidden to proceed any farther in that cause . see brooke , hoc titulo , and fitz. nat. br. fo . . and bracton , lib. . tract . . ca. . usque ad . who sayes , that it lies not after sentence given in any cause . and the stat. anno ed. . ordains , that but one prohibition should lie in one cause . see the diversity of prohibitions in the table of the register of writs , new book of entries , on this word , and part inst . fo . . prohibitio de vasto directa parti , is a writ judicial directed to the tenant , prohibiting him , from making waste upon the land in controversy , during the sute , reg. of writs judic . fo . . it is sometimes made to the sheriff , the example whereof you have next following in the same book . pro indiviso , is a possession or occupation of lands or tenements , belonging to two or more persons , whereof none knows his several portion ; as coparceners before partition . bracton , lib. . tract . . ca. . num. . prolocutor of the convocation house ( prolocutor domus convocationis ) is an officer chosen by persons ecclesiastical , publickly assembled by vertue of the kings writ at every parliament : and as there are two houses of convocation , so are there two prolocutors , one of the higher house , the other of the lower ; the later of which is , presently upon the first assembly , by the motion of the bishops , chosen by the lower house , and presented to the bishop for prolocutor of the lower house , that is , the person , by whom they intend to deliver their resolutions to the higher house , and to have their own house especially ordered and governed . his office is to cause the clerk to call the names of such as are of that house , when he sees cause , to read all things propounded , gather suffrages , and the like . cowel . promooters ( promotores ) are those , who in popular and penal actions , do prosecute offenders in their name , and the kings , having part of the fines or penalties for their reward . these among the romans were called quadruplatores or delatores . they belong cheifly to the exchequer , and kings bench. smith de repub . angl. lib. . ca. . sir edw. coke calls them turbidum hominum genus . instit . fol. . promulged ( promulgatus ) published , proclaimed . anno hen. . ca. . pronotary or prothonotary ( protonotarius , i. primus notarius ) is a cheif clerk of the common pleas , and kings bench , whereof the first hath three , the other one : for the prognotary of the common pleas ( anno hen. . ca. . ) is termed a cheif clerk of that court. he of the kings bench records all actions civil , as the clerk of the crown office does all criminal causes in that court. those of the common pleas , since the order of . jac. upon an agreement made betwixt the prothonotaries and filacers of that court ( who before did enter all declarations and pleas , whereunto a serjeants hand was not required ) do enter and enrol all manner of declarations , pleadings , assises , judgments , and actions . they make out all judicial writs , except writs of habeas corpus and distringas jurator . for which , there is a particular office not much beyond the memory of man erected , called the habeas corpora office. they also make out writs of execution , and of seisin , writs of priviledge , for removing causes from other inferior courts of record , in case where the party hath cause of priviledge . writs of procedendo , of scire facias in all cases , and writs to enquire of damages ; and all process upon prohibitions , and upon writs of audita quaerela , and false judgment , cum multis aliis . they enter and enrol all common recoveries ; and may make exemplifications of any record in the same term , before their rolls are made up and brought into the treasury of records in that court. pro partibus liberandis , is a writ for the partition of lands between co-heirs . reg. of writs , fol. . property ( proprietas ) is the highest right that a man hath , or can have to any thing , and no ways depending upon another mans curtesie . which none in our kingdom can properly be said to have in any lands or tenements , but onely the king in right of his crown : because all the lands throughout the realm are in the nature of fee , and hold either mediately or immediately of the crown . this word nevertheless is used for that right in lands and tenements that common persons have ; because it imports as much as arile dominium , though not directum . see fee. prophecies ( prophetiae ) are in our statutes taken for wizzardly fore-tellings of matters to come , in certain hidden and enigmatical speeches ; whereby great commotions have been often caused in this kingdom , and great attempts made by those , to whom such speeches promised good success , though the words are mystically framed , and point onely at the cognizance , arms , or some other quality of the parties . anno edw. . ca. . and ejusdem , ca. . and eliz. ca. . but these for distinction sake , are called fond , false , or phantastical prophecies . inst . fol. . propounders . the cha. of cokes institutes , is entituled , against monopolists , propounders , and projectors ; where it seems to be used onely as a synonima to monopolists . proprietary ( proprietarius ) is he that hath a property in any thing , quae nullius arbitrio est obnoxia . but it was heretofore most commonly used for him that hath the fruits of a benefice to himself , and his heirs , or successors , as in time past , abbots and priors had to them and their successors . see appropiation . proprietate provanda , is a writ that lies for him , who would prove a property before the sheriff . reg. of writs , fol. . & . for where a property is alleaged , a replegiare properly lies not . brook , property . pro rata , i. pro proportione . anno car. . ca. . pro rata portionis . see oneranda pro rata portionis . prorogue ( prorogo ) to prolong , defer , or put off to another day , to continue . anno hen. . cap. . the difference between a prorogation , and an adjournment or continuance of the parliament , is , that by the prorogation in open court , there is a session ; and then such bills as passed in either house , or by both houses , and had no royal assent to them , must at the next assembly begin again : for every several session of parliament is in law , a several parliament ; but if it be but adjourned or continued , then is there no session , and consequently all things continue in the same state they were in before the adjournment . inst . fol. . prosecutor , is he that followeth a cause in an others name . see promooters . protection ( protectio ) is generally taken for that benefit and safety , which every subject , denizen , or alien , specially secured , hath by the kings laws . anno edw. . cap. . and it is used specially for an exemption or immunity , given by the king to a person against sutes in law , or other vexations , upon reasonable causes him thereto moving , which is a branch of his prerogative . and of this protection , fitzherbert ( nat. br. fol. . ) makes two sorts : the first he calls a protection , cum clasula , volumus — whereof he mentions four particulars , . a protection , quia profecturus , for him that is to pass over sea in the kings service . . quia moraturus , for him that is abroad in the kings service upon the sea , or in the marches . anno hen. . cap. . . for the kings debtor , that he be not sued nor attached , till the king be paid his debt . anno edw. . and . in the kings service beyond sea , or on the marches of scotland . anno rich. . cap. . reg. of writs , fol. . and britton , cap. . the second form of protection is cum clausula nolumus , which is granted most commonly to a spiritual company for their immnnity from having their cattle taken by the kings ministers : but it may also be granted to a single person spiritual or temporal . protection extends not to pleas of dower , quare impedit , assise of novel disseisin , darrein presentment , attaints , nor pleas before justices in eyre . see new book of entries on this word . proto-forestarius , was he whom our ancient kings made cheif of windsor forest , to hear all causes of death , or mayhem there . cam. brit. pag. . a kinde of a lord cheif justice in eyre . protest ( protestari ) hath two divers applications , one is by way of cautel , to call witness ( as it were ) or openly to affirm , that he doth either not at all , or but conditionally yeeld his consent to any act , or unto the proceeding of a judge in a court , wherein his jurisdiction is doubtful , or to answer upon his oath , further then he is by law bound reg. of writs , fol. . b the other is by way of complaint to protest a mans bill : as if i pay money to a merchant in france , taking his bill of exchange to be repaid in england by his factor or assignee , if at my coming i finde not my self satisfied , but either delaid or denied , then i go into the exchange , and protest that i am not paid or satisfied by him . and thereupon , if he hath any goods within the realm , the law of merchants allows me satisfaction out of them . protestation ( protestatio ) is ( as iustice walsh defines it ) a defence of safeguard to the party that makes it , from being concluded by the act he is about to do , that issue cannot be joyned upon it . plowden , fol. . b. it is a form of pleading , when one does not directly affirm , nor directly deny any thing that is alleaged by another , or which he himself alleageth . protbonotary . see pronotary . prove . see profe . prover ( probator ) anno edw. . and hen. . cap. . see approver . and part inst . fol. . a man became an approver and appealed five , and every of them joyned battle with him , et duellum percussum fuit cum omnibus , & probator devicit omnes quinque in duello , quorum quatuor suspendebantur , & quintus clamabat esse clericum & allocatur ; & probator pardonatur . mich. edw. . coram rege rot. . suff. province ( provincia ) was used among the romans for a countrey , without the compass of italy , gained to their subjection by the sword , of which , that part of france next the alps , was one , and still retains the name . but with us a province is most usually taken for the circuit of an archbishops jurisdiction , as the province of canterbury , and that of york . anno hen. . ca. . and ejusdem , ca. . yet it is often used in our statutes for several parts of the realm ; and sometimes for a county . — in placito agnetis quae fuit uxor radulphi de butiller versus priorem de repindon , pro terra in pykinton , prior dicit quod nulla villa est in provincia illa , quae sic vocatur . placit . de juratis & assisis apud derby . pasch . hen. . rot. . provincial ( provincialis ) is a cheif governor of a religious order , as of friars , &c. anno hen. . cap. . provision ( provisio ) is used with us , as it is in the canon law , for the providing a bishop , or any other person with an ecclefiastical living , by the pope , before the incumbent be dead . it is also called gratia expectativa or mandatum de providendo . the great abuse whereof through all christendom heretofore , you may read not onely in duarenus de sacris ecclesiae ministeriis & beneficiis , lib. . cap. . but also particularly in england , mentioned in divers of our statutes . viz. edw. . cap. . stat . . & . commonly called the stat. de provisionibus , & & ejusdem , stat . . anno rich. . cap. . & ejusdem , cap. . & ejusdem , cap. . anno hen. . cap. . & . & anno hen. . cap. . see praemunire . provisor , is generally taken for him that hath the care of providing things necessary ; a purveyor ; but more especially in our statutes it signifies one that sued to the court of rome for a provision , ( which vide supra . ) old nat. br. fol. . who were prohibited by proclamation , hen. . anno . holl. pag. . b. . provisores dicuntur , qui vel episcopatum vel ecclesiasticam aliam dignitatem in romana curia sibi ambiebant de futuro , quod ex gratia expectativa nuncuparunt , quia usque dum vacaret expectandum esset . spel. proviso , is a condition inserted into any deed , upon the observance whereof the validity of the deed depends ; it sometimes signifies a covenant . cokes rep. lord cromwels case . it hath also another signification in matters judicial ; as if the plaintiff or demandant be slow or desist in prosecuting an action , by not bringing it to a tryal , the defendant or tenant may take out the venire facias to the sheriff , which hath in it these words proviso quod — to this end , that if the plaintiff take out any writ to that purpose , the sheriff shall summon but one jury upon them both . in which case , we call it , bringing down the record , or going to tryal , by proviso . see old nat. br. fol. . in nisi prius . provost-marshal , an officer in the kings navy , who hath charge of the prisoners taken at sea. anno car. . cap . art . . and is sometimes used for a like purpose at land , or to seise or arrest any within the jurisdiction of his place or office . proxege . see senege . quaere , if it be not the payment of proxies or procurations . proxies ( sir john davies rep. fol. . ) are yearly payments made by parish-priests to their bishop or archdeacon , ratione visitationis . see procurations , and the case inter regem & sir ambros . forth , jac. in the exchequer . pryk , is a kinde of service and tenure . — nich. filius & haeres nich. de longforde chivalier , tenet quatuor messuagia , acras terrae , decem acras prati & lx s. redditus cum pertinentiis in kinwaldmersh , de rege in capite , per servitium inveniendi unum equum , unum saccum , & unum pryk in guerra walliae , quandocunque contigerit regem ibi guerrare . mich. fines rich. . derb. fol. . publick faith , ( fides publica ) anno car. . cap. . was a rebellious cheat , to raise money of the seduced people , upon the publick faith of the nation , to make a wicked and causeless war against a most religious and gracious soveraign , which began in or about the year . pucellage ( pucellagium , fr. pucelage ) virginity , maiden-head . — quod tenuit eam dum idem b. abstulit pucellagium suum , vel quod concubuit cum ea . bracton , lib. . tract . . cap. . num . , , & . in an ancient ms. i finde it written puellagium . in placito pro raptu , sic continetur — quod ipsam de puellagio suo felonicè , & totaliter defloravit . inter plac. mich. edw. . london . . pudhepec ( sax. ) — si pudhepec ( i. nemoris caesio ) paerco regis vel forestae fiat , manc . emendetur , nisi propositio propensior amplius exigat . ll. hen. . cap. . but the learned spelman believes it to be false written , for the saxon ƿudhepec , i. wudhepec , the w. in that character being like the p. in ours . pudȝeld ( coke on littl. fol. . ) the same with woodgeld ; for it seems to be a mistake of the saxon ƿudgeld puisne ( fr. puisné ) younger , puny , born after . see mulier . pundbrech ( a sax. pund , i. parcus & brech , i. fractura ) si pundbrech ( i. fractura parci ) fiat in curia regis plena wyta sit ; alibi quinque mancae . ll. hen , . cap. . it is the illegal taking of cattle out of the pound , either by breaking the pound , picking the lock , or otherwise . purchas ( purchacia , from the fr. pourchasser ) is to buy lands or tenements with ones money , or otherwise gain it by ones industry , contradistinguished from that which comes to one by descent from his ancestors . gaufridus de mandevilla comes essexiae fundator canobii sancti jacobi waldensis in charta prima — contuli , &c. omnes ecclesias inferius annotatas , tam de dominio meo , quam de emptis & purchasiis , &c. joinct-purchas ( conjunctum perquisitum . ) reg. of writs , fol. . b. is where two persons or more joyn in a purchase of lands . purfles of a womans gown ( from the fr. pourfiler , anno hen. . cap. . ) a sort of trimming for womens gowns , then in use ; it was made of tinsel , or gold-thred , or lace , and was also called baudkin work. so cam. tit . ireland , speaks of a mantle or shag-rug , with a deep fringed purfle . purgation ( purgatio ) is the clearing ones self of a crime , whereof he is probably and publickly suspected , and thereof accused before a judge . of this there was great use in england , touching matter of felony imputed to clerks in former times , as appears by stamf. pl. cor. lib. . cap. . and westm . . cap. . see clergy . it is still observed in matters pertaining to the ecclesiastical court , as suspition or common fame of incontinency , or such like . purgation is either canonical or vulgar ; canonical , is that which is prescribed by the canon law ; the form whereof , is usual in the spiritual court , the person suspected taking his oath , that he is clear of the fact objected ; and bringing so many of his honest neighbors , not above twelve , as the court shall assign him , to swear upon their consciences and credulity , that he swears truly : the vulgar , and ancient manner was by fire , or water , or by combat , used by insidels and christians also , till by the canon law it was abolished . but combat , though now disused , may be still practised by the laws of the realm , in cases doubtful , and where there is a want of evidence , or other proof , if the defendant chuse rather the combat , then other tryal . see ordel and combat . purificatio beatae mariae uirginis . ( anno hen. . cap. . ) see candlemass . purlue or purlieu ( from the fr. pur , i. purus , & lieu , locus ) is all that ground near any forest , which , being made forest by henry the second , richard the first , or king john , were by perambulation granted by henry the third severed again from the same , and became purlue , i. pure and free from the laws and ordinances of the forest . manwood , par. . for. laws , cap. . see the stat. edw. . stat . . and the perambulation whereby the purlieu is deafforested , is called pourallee , i. perambulatio . inst . fol. . purlieu-man , is he that hath ground with 〈◊〉 the purlieu , and being able to dispend forty shillings per annum of freehold , is licensed to ●unt in his own purlieu . manwood , part . pa. . . but , what observations he must use in his hunting see more in him , pa. , and par. ca. . num. . . . purpresture , ( from the fr. pourprist and pourprest , . integre arreptum ) est proprie terrae alienae clandestina sustractio , ejusdemque vicinae ascriptio . see pourpresture . purprisum , ( fr. pourpris ) a close , or enclosure ; also the whole compass or extent of a mannor or place . — donavi eis meum purprisum de kirkeham & domos meas & molendinum & prata , &c. carta walteri espec priorat . de kirkeham . in mon. angl. par. fo . . n. . purrel , ( anno eliz. ca. . ) a list ordained to be made at the end of kersies , to prevent deceit in diminishing their length . pursy , ( anno eliz. ca. . ) a terme among clothiers . see rewey . pursuivant . see poursuivant . purveyance see pourveyance . purvieu , ( fr. pourveu , a patent , gift , grant ; and pourveu que , so that , on condition that ) sir edward coke often uses it in his works for the body or that part of an act of parliament which begins with be it enacted — the stat. of hen. . stands upon a preamble and a purview . rep. fo . . putage , ( putagium ) fornicatio ex parte faeminae : quasi puttam agere , a gall. putte , i. meretrix . — quod autem generaliter solet dici , putagium haereditatem non adimit ; illud intelligendum est de putagio matris ; quia filius haeres legitimus est , quem nuptiae demonstrant . glanv . l. . ca. . putura , ( q. potura ) a custom claimed by keepers in forests , and sometimes by bailiffs of hundreds , to take mans meat , horse meat , and dogs meat of the tenants and inhabitants gratis , within the perambulation of the forest , hundred , &c. this custom within the liberty of knaresburg was long since turned into the payment of d. pro putura . ms. de temp . ed. . pl. coron . in com. ebor. de anno ed. . putura in chasia de bovoland . inst . . per puturam servient . johannes stanley ar. clamat habere de quolibet tenente , aliquam terram vocatam ould oxgang lands possidente , qualibet sexta septimana victum prout paterfamilias residens super hujusmodi terram habuerit . pl. in itin. apud cestriam hen. . and the land subject to this custom is called terra puturata . pla. apud cestr . ed. . placita apud preston edw. . coram willielmo de shareshull , rogero de hungerford , henrico de hungerford , henrico de hanbury , simone de pakeman , & rogero de hillary . johannes de radecliffe , seneschallus libertatis de penwortham attachiatus fuit ad respondendum abbati de evesham de placito , &c. johannes clamat unam puturam in prioratu de penwortham , qui est quaedam cella abbatiae de evesham , pro se & ministris , equis & garcionibus suis , per unum diem & duas noctes , de tribus septimanis in tres septimanas , viz. de victualibus , ut in esculentis , & poculentis , ad custus prioratus praedicti , indebite . pyker alias pycar , a kind of ship , mentioned anno edw. . stat. . ca. . pyrate . see pirate . q. quadragesima sunday , is the first sunday in lent , and so called , because it is about the fortieth day before easter . see quinquagesima . quadrantata terrae . see fardingdeal . quadrugata terrae , a teem land ; quae quatuor equis agitur . — willielmus prior de tuttebur . & omnes monachi ejusdem loci concesserunt ormo de acouere & heredibus suis unam quadrugatam terrae quae attinet ad man. de malefeld solam & quietam sicut tenuit in diebus henr. de ferr. &c. pro octo sol . redd . per ann . ad festum s. martini , &c. sine dat . m. s. will. dugdale ar. quae plura , was a writ that lay where an inquisition had been made by an escheator , of such lands or tenements , as any man died seized of , and all was supposed not to be found by the office ; this was therefore to enquire what more lands or tenements the party dyed seised of . the form see in reg. of writs , fo . . and in fitz. nat. br. fo . . this writ is now made useless by taking away the court of wards and offices post mortem . anno car. . ca. . quaerens non invenit plegium , is a return made by the sheriff , upon a writ directed to him , with this condition inserted . si a. fecerit b. securum de clamore suo prosequendo , &c. fitz. nat. br. fo . . quae servitia , is a writ . see per quae servitia . quam diu se bene gesserit , is a clause often used in letters pattent of the grant of offices , as in those to the barons of the exchequer ; which must be intended in matters concerning their office ; and is no more then the law would have imply'd , if the office had been granted for life . inst . fo . . quale jus , is a writ judicial , that lies , where a man of religion has judgment to recover land , before execution is made of the judgment ; for this writ must go forth to the excheator , between judgment and execution , to enquire whether the religious person has right to recover , or whether the judgment be obtained by collusion between the demandant and tenant , to the intent that the true lord be not defrauded . see westm . . ca. . the form of it see in reg. of writs judic . fo . . . and new book of entries . quantum meruit , i. how much he has deserved ; an action of the case so called , grounded upon a promise to pay a man for doing any thing so much as he should deserve or merit . quare ejecit infra terminum , is a writ that lies for a lessee , in case where he is cast out of his farm , before his term be expired , against the feoffee or lessor that ejects him ; and it differs from the ejectione firmae ; because this lies where the lessor , after the lease made , enfeoffs another , who ejects the lessee ; the ejectione firmae lies against any other stranger that ejects him . the effect of both is all one , which is , to recover the residue of the term . see fitz. nat. br. fo . , and reg. of writs , fo . . quare impedit , is a writ that lies for him , who has purchased an advowzen , against him that disturbs him in the right of his advowzen , by presenting a clerk thereto , when the church is void . and it differs from the writ called assisa ultimae presentationis , because that lies , where a man or his ancestors formerly presented ; and this for him that is the purchaser himself . where a man may have that assise , he may have this writ , but not contrariwise . see new book of entries on this writ , bracton , lib. . tract . . ca. . fitz. nat. br. fo . . and westm . . ca. . quare incumbravit , is a writ that lies against the bishop , who , within six moneths after the vacation of a benefice , confers it on his clerk , whilst two others are contending in law , for the right of presenting . old nat. br. fo . . fitz. nat. br. fo . . and reg. of writs , fo . . quare intrusit matrimonio non satisfacto , is a writ that lay for the lord against his tenant , being his ward , who , after convenable marriage offer'd him , marries another , and enters nevertheless upon his land , without agreement first made with his lord and guardian . but all wardships being taken away ( by act car. . ca. . ) this writ is become useless . quare non permittit , is a writ , that lies for one , that has right to present for a turn against the proprietary . fleta , lib. . ca. . quare non admisit , is a writ that lies against the bishop , refusing to admit his clerk , who has recover d in a plea of advowzen , fitz. nat. br. fo . . quarentena habenda , is a writ that lies for a widdow to enjoy her quarentene , reg. of writs , fo . . quarentene , ( quarentena , ) is a benefit allow'd by the law to the widow of a landed man deceased , whereby she may challenge to continue in his capital messuage , or chief mansion house , ( so it be not a castle ) by the space of dayes after his decease . bracton , lib. . ca. . and , if the heir , or any other attempt to eject her , she may have the writ de quarentena habenda , fitz. nat. br. fo . . maneat ( vidua ) in capitali messuagio mariti sui per quadraginta dies post obitum mariti sui , infra quos dies assignotur ei dos , nisi prius assignata fuerit , vel nisi domus illa sit castrum . mag. carta ca. . — see fleta , lib. . ca. . quarentene signifies also a quantity of ground containing perches , — quatuor carucatas terrae arabilis , continentes in longitudine quarentenas , & . quarentenas in latitudine . chart. withlasii regis merciorum apud ingulf . — nam longe debet esse pax regis a porta sua ubi residens fuerit a quatuor partibus loci illius , hoc est quatuor miliaria & tres quarentenae & novem acrae latitudine , & pedes , & palmae & novem grana ordei . ll. hen. . ca. . quarentena in london ponetur pro respectu habend . per dies post summonitionem per breve regis , ut consulant , &c. si sibi viderint expedire . ms. de temp . ed. . penes johannem trevor arm. and quarentine is also the terme of dayes , wherein any person , coming from forrein parts infected with the plague , is not permitted to land , or come on shore , untill so many dayes are expired . quare obstruxit , is a writ that lies for him , who , having a liberty to pass through his neighbours ground , cannot enjoy his right , for that the owner has so strengthned it . fleta , lib. . ca. . sect. item si minus . quarel , ( querela , a querendo ) this properly concerns personal actions , or mixt at the highest , for the plaintiff in them is called querens , and , in many of the declarations in trespass it is said queritur . yet , if a man release all quarels , or querels , ( a mans deed being taken most strongly against himself ) it is as strong as all actions ; for , by it all actions real and personal are released . quareria , a quarry of stone . — praeterea dedi eis turbariam , & petrariam & quareriam , ubicunque invenire poterint in territorio villae de hepp , &c. mon. ang. par. . fo . . b. quarter . — eight bushels striked make the quarter of corn. anno rich. . ca. . quarter-sessions , is a court held by the justices of peace in every county once every quarter of a year , edw. . stat. . ca. . how farr the jurisdiction thereof extends , see lamb. eiren. lib. . and sir tho. smith de repub . angl. lib. . ca. . originally it seems to have been erected onely for matters touching the breach of the peace ; but now it extends much farther , by power given to the justices of peace by many late statutes . quash , ( quassare . fr. quasser . ) to overthrow or annul . bracton . lib. 〈◊〉 . tract . . ca. . num . . anno hen. . ca. . as , if the bailiff of a liberty return any out of his franchise , the array shall be quashed ; as an array , returned by one that has no franchise , shall be quash'd . coke on lit. fo . . quechord , ( anno edw. . ca. . ) a kind of game , prohibited by the said statute : perhaps the same we now call shovelbord . que est mesme , ( signifying verbatim , which is the same thing ) is used with us , as a word of art , in an action of trespass or such like , for a direct justification of the very act complained of by the plaintiff , as a wrong . for example , in an action of the case , the plaintiff sayes , the lord threatned his tenants at will in such sort , as he forced them to give up their lands . the lord for his defence pleads , that he said unto them , if they would not depart , he would sue them at law : this being the same threatning that he used , or , to speak artificially , que est le mesme , the defence is good . see kitchin , in cha. que est le mesme , fo . . que estate , signifies verbatim , which estate , or the same estate ; and is a plea , whereby a man , entituling another to land , &c. saith , that the same estate himself had , he has from him ; for example , in a quare impedit , the plaintiff alleageth , that such four persons were seized of lands , whereunto the advowson in question was appendant in fee , and did present to the church , and afterwards the church was void , que estate — that is , which estate of the four persons he has now during the vacation , by vertue whereof he presented , &c. broke tit . que estate , fo . . and see coke on litt. fo . . queen ( regina ) is either she that holds the crown of this realm by right of blood , or she that is marryed to the king , which last is called queen consort . in the former signification , she is in all construction the same that the king is , and has the same power in all respects : in the later , she is inferior , and a person exempt from the king ; for , she may sue , and be sued in her own name : yet , what she hath is the kings , and what she loseth the king loseth . stamf. praerog . ca. . fo . . and coke , lib. . copyhold-cases , fo . . b. queen gold , ( aurum reginae ) is a royal duty , or revenue belonging to every queen consort , during her marriage to the king of england , both by law , custom , and praescription , payable by sundry persons in england and ireland ( upon divers grants of the king ) by way of fine or oblation , amounting to ten markes or upwards ; to wit , one full tenth part above the entire fine , as ten pounds for every hundred pounds fine , upon pardons , contracts , or agreements ; which becomes a real debt and duty to the queen , by the name of aurum reginae , upon the parties bare agreement with the king for his fine , and recording it , without any promise or contract , for this tenth part exceeding it . lib. nig. scac. pa. . . cokes . rep. fo . . . and mr. pryns tractate , on this subject per tot . quein redditum reddat , is a writ judicial , lying for him to whom a rent-seck , or rent-charge is granted , by fine levied in the kings court , against the tenant of the land , that refuseth to atturn to him , thereby to cause him to atturn . old. nat. br. fo . . querela frescae fortiae , is a writ . see freshforce . querela coram rege & consilio , &c. is a writ , whereby one is called to justifie a complaint of a trespass made to the king himself , before the king and his counsel , reg. of writs , fo . . questus est nobis , &c. is the form of a writ of nusance , which , by the stat. anno ed. . ca. , lies against him to whom the house or other thing that breeds the nusance is alienated ; whereas before the statute this action lay onely against him that first levied , or caused the nusance to the damage of his neighbor . quia improvide , seems to be a supersedeas granted in the behalf of a clerk of the chancery , sued against the priviledge of that court , in the common-pleas , and pursued to the exigend , or in many other cases , where a writ is erroneously sued out , or misawarded . see dyer , fo . . n. . quid juris clamat , is a writ judicial , issuing out of the record of a fine , which remains with the custos brevium of the common-pleas , before it be engrossed ( for after it cannot be had ) and it lies for the grantee of a reversion or remainder , when the particular tenant will not atturn . west , par . . symbol . tit . fines . sect. . see new book of entries , on this writ . quid pro quo , is an artificial speech , signifying as much as the greek 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 among the civilians , which is a mutual performance of both parties to a contract , or a giving one thing for another , as l. for a horse , kitchin , fo . . quietancia sectae hundredi & wichmote — per haec verba johannes stanley ar. clamat quod ipse & tenentes sui non teneantur venire ad curiam istam . pl. in itin. apud cestriam hen. . see acquietancia . quietancia assisarum super assisam — per haec verba johannes stanley clamat , quod ipse , & tenentes & residentes sui non ponantur in assisis jurat . nec magnis assisis . plac. ut supra . quietus , ( i. freed or acquitted ) is a word used by the clerk of the pipe , and auditors in the exchequer , in their acquittances or discharges given to accountants ; usually concluding with abinde recessit quietus , which is called a quietus est , and is mentioned in the act of general pardon , car. . ca. . and car. . ca. . a quietus est granted to the sheriff , shall discharge him of all accounts due to the king. anno jac. ca. . quinquagesima sunday , is that we call shrove-sunday , and is so called , because it is about the fiftieth day before easter ; of which you may read in durandi rationali divinorum , cap. de quinquagesima , and mentioned in briton , and other ancient law-writers . quinque portus , the cinque-ports , which are , . hastings , . romene , . hethe , . dover , and . sandwich . to the first winchelsea and rye belong , which are reckoned as part or members of the cinque-ports . — servitium quod barones quinque portuum praescriptorum recognoscunt facere ad summonitionem regis per annum , si contigerit per dies ad custum eorum proprium ; ita quod primus dies computatur a die quo vela navium erexerunt , usque partes ad quas n dere debent , vel ulterius quamdiu rex voluerit ad custum ejus . see cinque ports . quinsieme or quinzime ( decima quinta ) is a french word signifying a fifteenth ; with us it is a tax , so called , because it is raised after the fifteenth part of mens lands or goods . anno rich. . cap. . and hen. . cap. . see fifteenth and tax . it is well known by the exchequer roll what every town throughout england is to pay for a fifteenth . sometime this word quinsieme or quinzime is used for the fifteenth day after any feast , as the quinzime of s. john baptist . anno ed. . in the preamble . quintane ( quintana ) fr. quintaine & bersant ) a kinde of exercise tkat young men did , and still do use in some parts of this nation ( especially shropshire , ) by breaking poles on horse-back against a strong plank or butteress set up in the high-way , most used at marriages . what it was anciently , matthew paris thus delivers . — eo tempore juvenes londini statuto pavone pro bravio , ad stadium quod quintana vulgariter dicitur , vires proprias & equorum cursus sunt experti . in hen. sub initio anni . quint-exact ( anno eliz. cap. . ) quinto exactus , is the last call of a defendant , who is sued to the outlary , when , if he appear not , he is by the judgment of the coroners , returned outlawed ; if a feme , waved . see exigent . quinzime . see quinsieme . quiteclaim ( quieta clamantia ) is a release or acquitting a man for any action , that he hath or may have : a quitting of ones claim or title . bracton , lib. . tract . . cap. . num . . and lib . tract . . cap. . num . . quit-rent ( quietus redditus ) quasi , quiet-rent , is a certain small rent , payable yearly by the tenants of most mannors , which when paid , the tenant is quiet and free , till it becomes due again . this in some ancient records is written white-rent ; because paid in silver . quod ei deforceat , is a writ that lies for the tenant in tail , tenant in dower , or tenant for life , against him that entred or took away their land recovered , or against his heir . see brook hoc tit . reg. of writs , fol. . and westm . . cap. . quod clerici non eligantur in officio balivi , &c. is a writ that lies for a clerk , who , by reason of some land he hath , is made , or like to be made either bailiff , bedel , or reeve , or some such like officer . see clerico infra sacros , &c. and regist . of writs , fol. . quod permittat , is a writ that lies for the heir of him that is disseised of his common of pasture , against the heir of the disseisor , being dead . briton ( cap. . ) says , this writ lies for him , whose ancestor died seised of common of pasture , or other like thing annexed to his inheritance , against the deforceor see brook hoc tit . and new book of entries . quod clerici beneficiati de cancellaria , is a writ to exempt a clerk of the chancery , from contributing towards the proctors of the clergy in parliament . regist . of writs , fol. a. quod persona nec prebendarii , &c. is a writ that lies for spiritual persons that are distrained in their spiritual possessions , for the payment of a fifteenth , with the rest of the parish . fitz. nat. br. fol. . quod non permittat . see consuetudinibus & servitiis . quo jure , is a writ , that lies for him who hath land , wherein another challengeth common of pasture , time out of minde ; and it is to compel him to shew by what title he so challenges it . fitz. nat. br. fol. . and britton , cap. . at large . quo minus , is a writ that lies for him , who hath a grant of house-bote and hay-bote , in another mans woods , against the grantor making such waste , as the grantee cannot enjoy his grant. old nat. br. fol. . and kitchin , fol. . this writ also lieth for the kings farmer in the exchequer , against him to whom he sells any thing by way of bargain , touching his farm , or who oweth him any money , or against whom he hath any cause of personal action . perkins , grants . for he supposeth by the vendees detaining any due from him , he is made less able to pay the king rent . under which pretence any one , who pays the king a fee-farm rent , may have this writ against any other person for any debt , or damage , and bring the cause to tryal in the exchequer . quo warranto , is a writ that lies against him , who usurps any franchise or liberty against the king , as to have waiff , stray , fair , market , court-baron , leet , or such like , without good title . old nat. br. fol. . or else against him that intrudes himself as heir into land. bracton , lib. . tract . . cap. . num . . and edw. . stat . & . and ejusdem . see also the new book of entries . quorum , is a word often mentioned in our statutes , and much used in commissions , both of justices of the peace , and others . as for example , where a commission is directed to five persons , or to any three of them , whereof a. b. and c. d. to be two , in this case a. b. and c. d. are said to be of the quorum , because the rest cannot proceed without them . so a justice of the peace and quorum is one , without whom , the rest of the justices in some cases cannot proceed . anno hen. . cap. . and hen. . cap. . quyke , was anciently used for a live or quick beast . john bracebrige of kinnersbury esq in his will , dated hen. . ordained , that his best quyke should be taken in the name of his mortuary . r. rachetum alias rachatum ( from the fr. rachater or racheter , i. redimere ) theifbote , the compensation or redemption of a theif . nullus capiat rachetum , hoc est theifbute de latrocinio . stat. rob. r. scot. cap. . rack ( fidiculae , sic dict . quia eis rei in eculeo torquentur , ut fides inveniatur ) an engin , in the tower , with cords , and strings , to extort confession from delinquents . john holland , earl of huntingdon , was by king henry the sixth , created duke of exeter , anno h. . the king granted to him the office of constableship of the tower. he and william de la poole , duke of suffolk , and others , intended to have brought in the civil laws : for a beginning whereof , the duke of exeter , being constable of the tower , first brought into the tower the rack or brake , allowed in many cases by the civil law ; and thereupon it was called the duke of exeters daughter , because he first brought it thither . inst . fol. . rack-vintage ( anno hen. . cap. . ) is a second vintage or voyage for wines by our merchants into france , &c. for rack'd wines , that is , wines drawn from the lees. from this voyage , our merchants commonly return about the end of december , or beginning of january . rad knights . see rod knights . radechenistres , i. liberi homines . domesday , tit . leofminstre ( lempster ) — ibi erant praepositi , & bedelli , radechenistres , villani , & bordarii , &c. radman , domesday , tit . herefscire . bordar . praepositus & unus radman , &c. seems to be the same with rod-knight . rageman , is a statute so called , of justices assigned by edward the first and his council , to hear and determine , throughout all england , all complaints of injuries done within five years next before michaelmas , in the fourth year of his raign . ragmans-roll edward the third ( says sir richard baker in his chronicle , fol. . ) surrendered by his charter , all his title of soveraignty to the kingdom of scotland , restored divers deeds and instruments of their former homages and fealties , with the famous evidence called ragmans roll. ran ( sax. ) aporta rapina , so open a spoiling a man , as it cannot be denied . hoveden , inter ea quae willielmus prinius constituit in emendationem legum angliae , parte post . hen. . — decretum est etiam ibi , ut si francigena appellaverit anglicum , de perjurio , aut murdro , furto , homicidio , ran , quod dicunt apertam rapinam , quod negari non potest , anglicus se defendet per quod melius voluerit , aut judicio ferri , aut duello . consonant whereunto it is to this day vulgarly said by one , who taketh the goods of another injuriously , and by violence : he hath taken all he could rap and ran ; rap , from rapio , to snatch . range ( from the fr. ranger , i. to order , array , or dispose of ) is used in the forest laws , both as a verb ( as to range ) and as a substantive ( as to make range ) char. de foresta , cap. . the ranger is a sworn officer of the forest , of which sort , there are twelve , idem . cap. . whose authority is partly described by his oath , set down by manwood , par. . pag. . but more particularly , in par. . cap. . num . , , & . his office cheifly consists in these three points , ad perambulandum quotidiè per terras deafforestatas , ad videndum , audiendum & inquirendum tam de malefactis , quam de malefactoribus in balliva sua ; ad refugandum feras forestae tam veneris quam chaseae de terris deafforestatis , in terras afforestatas & ad presentandum omnes transgressiones forestae in terris deafforestatis factas , ad proximas curias illius forestae tentas . this ranger is made by the kings letters patent , and hath a fee of or l. paid yearly out of the exchequer , and certain fee-deer . ransome ( redemptio , fr. rencon . ) signifies properly the sum paid for redeeming a captive , or prisoner of war , and sometimes a great sum paid for the pardoning some heinous crime . anno hen. . cap. . and hen. . cap. . when one is to make a fine and ransom , the ransom shall be treble to the fine . cromp. just . of peace , fol. . a. and lamb. eiren. lib. . cap. . pag. . horn ( in his mirror of justices ) makes this difference between amerciament and ransom ; that ransom is the redemption of a corporal punishment , due by law to any offence . lib. . cap. de amerciament taxable . see coke on littl. fol. . a. rape ( rapus vel rapa ) is a part of a county , signifying as much as a hundred , and sometimes quod plures in se continet hundredos : as , all sussex is divided into six rapes onely ; viz. the rape of chichester , arundel , brember , lewis , penensey , and hastings ; every of which , besides their hundreds , hath a castle , river , and forest belonging to it . cam. brit. pag. . & . these parts are in other counties called tithings , lathes , or wapentakes . smith de repub. angl. lib. . cap. . rape ( raptus ) is when a man hath carnal knowledge of a woman by force , and against her will : but if the woman conceive , it is no rape , for she cannot conceive unless she consent . coke on littl. lib. . cap. . sect . . this offence is felony in the principal , and his aiders . anno rich. . stat . . cap. . . hen. . cap. . — edw. . cap. . and westm . . cap. . and shall not be allowed clergy . anno eliz. cap. . but fleta says , the complaint must be made within forty days , else the woman may not be heard , lib. . cap. . sect . praeterea . and carnal knowledge of a woman under ten years old is felony . anno eliz. cap. . of the diversity of rapes , see cromptons justice of peace , fol. & . the offender is called raptor , a ravisher , and in bractons time he was punished with the loss of his eyes and stones , quia calorem stupri induxerunt . inst . fol. . rape of the forest ( raptus forestae ) inter delicta numeratur , quorum cognitio ad unicum regem spectat . ll. hen. . cap. . — violentus concubitus , raptus forestae , relevationes baronum suorum , &c. trespass committed in the forest , by violence . rapine ( rapina ) to take a thing secretly against the owners will , is properly theft , openly , or by violence , is rapine . anno car. . cap. . and ejusdem , cap. . raptu haeredis , is a writ lying for the taking away an heir , holding in socage ; of which , there are two sorts , one when the heir is married ; the other , when not . of both , see reg. of writs , fol. . b. rase ( raseria ) — toll shall be taken by the rase , and not by the heap or cantel . ordinance for bakers , brewers , &c. cap. . it seems to have been a measure of corn , now disused — debentur ei annuatim decem & octo raseriae avenae & sex raseriae ordei , &c. spel. rate tythe , is where sheep or other cattle are kept in a parish for less time then a year , the owner must pay tythe for them pro rata , according to the custom of the place . fitzh . nat. br. fol. . brook , disms . . pro rata dicimus pro proportione , vel proportionaliter . lindwood . ratification ( ratificatio ) a ratifying or confirming : it is particularly used for the confirmation of a clerk in a prebend , &c. formerly given him by the bishop , &c. where the right of patronage is doubted to be in the king. see reg. os writs , fol. . rationabili parte bonorum , is a writ that lies for the wife , against the executors of her husband , denying her the third part of her husbands goods , after debts and funeral charges paid . fitzh . nat. br. fol. . who there cites the chapter of magna charta , and glanvile , to prove , that , according to the common law of england , the goods of the deceased , his debts first paid , should be divided into three parts , whereof his wife to have one , his children the second , and the executors the third : and this writ lies as well for the children , as for the wife ; which appears also by the reg. of writs , fol. . b. yet it seems to have use , onely where the custom of the countrey serves for it . see the new book of entries , on this word . rationabilibus divisis , is a writ , that lies where two lords have their seigneuries joyning together , for him that findes his waste encroached upon within the memory of man , against the encroacher , thereby to rectifie the bounds of their seigneuries ; in which respect , fitzherbert calls it , in its own nature , a writ of right . the old nat. br. says this may be by justicies , which may be removed by a pone out of the county , to the common bench. see fitz. nat. br. fol. . ravishment ( raptus , fr. ravissement , i. direptio , raptio ) signifies an unlawful taking away either a woman , or an heir in ward . sometimes it is also used in one signification with rape . ravishor ( raptor ) he that deflowres a woman by violence . see the penalty for ravishing , or being ravished , does afterwards consent , in the statute of rich. . cap. . see rape . ray , seems to be a word appropriated to cloath , never coloured or dyed . anno hen. . cap. . worsteds ray. anno rich. . cap. . reafforested , is where a forest hath been disafforested , and again made forest ; as the forest of dean by the stat. car. . cap. . realty , is an abstract of real , and is contradistinguished from personalty . reasonable ayd ( rationabile auxilium ) was a duty , which the lord of the fee claimed of his tenants holding by knights-service , or in soccage , to marry his daughter , or make his eldest son a knight . westm . . cap. . but see the stat. car. . cap. . reattachment ( reattachiamentum ) is a second attachment of him , who was formerly attached , and dismissed the court without day , as by the not coming of the justices , or some such casualty . brook , hoc titulo . where he makes reattachment general and special . general , is where a man is reattached for his appearance upon all writs of assise lying against him . brook eodem , num . . then , special must be for one or more certain . reg. of writs judicial , fol. . see the new book of entries , verbo , reattachment . rebellion ( rebellio ) did anciently signifie a second resistance of such , as being formerly overcome in battel by the romans , yielded themselves to their subjection . but now we use it generally , for the traiterous taking arms against the king , be it by natural subjects , or by others , formerly subdued . rebel is sometimes attributed to him that wilfully breaks a law. anno edw. . cap. . and ejusdem , stat . . cap. . sometimes to a villain disobeying his lord. anno rich. . cap. . commission of rebellion , see in commission . rebellious assembly , is a gathering together of twelve persons or more , intending ro going about , practising or putting in ure unlawfully of their own authority , to change any laws or statutes of the realm , or to destroy the enclosure of any park or or ground enclosed , or banks of any fish-ponds , pool , or conduit , to the intent the same shall remain void , or to the intent , unlawfully to have common , or way in any of the said grounds , or to destroy the deer in any park , or any warren of conneys , dove-houses , fish in any ponds , or any house , barns , mills , or bays , or to burn stacks of corn , or to abate rents or prizes of victuals . anno mar. cap. . and eliz. cap. . see west , par . . symbol . tit . indictments . sect. . and cromp. justice of peace , fol. . b. rebutter ( fr. bouter , i. repellere , to repel or bar ) a man grants land to the use of himself , and the issue of his body , to another in fee with warranty , and the donee leaseth out the land to a third person for years , the heir of the donor impleads the tenant , alleaging the land was in tayl to him : the donee comes in , and by vertue of the warranty made by the donor , repels the heir , because though the land was intailed to him , yet he is heir to the warrantor likewise : and this is called a rebutter . again , if i grant to my tenant to hold sine impetitione vasti , and afterward implead him for waste made , he may debar me of this action , by shewing my grant ; which is likewise a rebutter . brook tit . bar , num . & . see the new book of entries , verbo , rebutter . and coke on littl. fol. . a. recaption ( recaptio ) signifies a second distress of one formerly distrained for the same cause , and also during the plea grounded on the former distress . it likewise signifies a writ , lying for the party thus distrained , the form and further use whereof , see in fitz. nat. br. fol. . reg. of writs , fol. . and reg. judicial , fol. . receiver ( receptor and receptator ) is used commonly in the evil part for such as receive stoln goods from theeves , and conceal them ; but annexed to other words , as receiver of rents , &c. it signifies an officer of good account , belonging to the king , or other great personage . cromp. jurisd . fol. . there is also an officer called the receiver of the fines upon original writs in chancery . receiver-general of the dutchy of lancaster , is an officer belonging to the dutchy court , who gathers in all the revenues and fines of the lands of the said dutchy , and all forfeitures and assessments , or what else is thence to be received : anno eliz. cap. . receiver-general of the muster rolls . anno eliz. cap. . receit . see resceit . recluse ( reclusus ) is he who being entered into a religious order , is shut up there , and stirs not out of the house or cloyster . littl. fol. . recognizance ( fr. recognoissance , i. recognitio ) is a bond or obligation , testifying the recognizor to ow the recognizee a sum of money , and is acknowledged in some court of record , or before some judge , master of chancery , justice of peace , &c. anno hen. . cap. . some recognisances are not sealed , but enrolled ; and execution by force thereof , is of all the recognizors goods and chattels ( except draught-beasts , and implements of husbandry , ) and the moyety of his lands . west , par. . symb. lib. . sect . . and reg. of writs , fol. , , & . recognizance hath another signification , as appears in the statute of westm . . cap. . for it is there provided and agreed , that if any man be attainted of disseisin done in the time of the king that now is , or for taking any manner of goods , or moveables , and it be found against him by recognizance of assise of novel-disseisin , the judgment shall be , &c. where it is used for the verdict of the twelve men impannelled upon an assise ; which twelve are also called recognitors of the assise . littl. fol. . bracton , lib. . tract . . cap. . num . . and lib. . tract . . cap. . num . . see the statute of edw. . stat . . and new book of entries , verbo , recognizance . recognizée , is he is to whom one is bound in a recognizance . anno hen. . cap. . recognition ( recognitio ) an acknowledgment . it is the title of the first chapter of the stat. jac. recognitione adnullanda per vim & duritiem facta , is a writ to the justices of the common bench , for the sending a record touching a recognizance , which the recognizor suggests to have been acknowledged by force and hard dealing ; that , if it so appear , it may be disannulled . reg. o● writs , fol. . recognitors ( recognitores ) is a word used for the jury impaneld upon an assise . the reason why they are so called , is , because they acknowledge a disseisin by their verdict . bracton , lib. . tract . . cap. . num . . see recogzance . record ( from recordare , to remember ) signifies an authentical and uncontrolable testimony in writing , contained in rolls of parchment , and preserved in courts of record , and they are said to be vetustatis & veritatis vestigia . coke praef. to rep. an act committed to writing in any of the kings courts , during the term wherein it is written , is alterable , and no record ; but that term once ended , and the act duly enrolled , it is a record , and of that credit , that admits no alteration or proof to the contrary . brook tit . record , num . . & . yet see cokes rep. lib. . rawlins case , fol. . b. the king may make a court of record by his grant. glanvile , lib. . cap. . britton , cap. . as queen elizabeth by her charter , dated aprilis , anno regni sui , made the consistory court of the university of cambridge , a court of record . there are reckoned three sorts of records , viz. a record judicial , as attainder , &c. a record ministerial upon oath , as an office or inquisition found ; a record made by conveyance and consent , as a fine or deed enrolled , or the like . coke lib. . ognels case , fol. . b. recordare facias , or recordari facias , is a writ directed to the sheriff , to remove a cause , depending in an inferior court , as court of ancient demesn , hundred or county , to the kings bench or common pleas , fitz. nat. ●r . fo . . b. & c. where , and in what cases this writ lies , read brook , tit . recordare & pone . it seems to be called a recordare , because it commands the sheriff , to whom it is directed , to make a record of the proceedings by himself , and others , and then to send up the cause . see the register , verbo , recordare , in the table of original writs . recorder ( recordator ) is he , whom the major , or other magistrate of any city or town corporate , having jurisdiction or a court of record , within their precincts by the kings grant , does associate unto him , for his better direction in matters of justice , and proceedings according to law. and he is for the most part , a person well seen in the common law. recordo & processu mittendis , is a writ to call a record , together with the whole proceedings in the cause , out of an inferior court into the kings court. see the table of the register of writs . recordo utlagariae mittendo , is a writ judicial , which see in reg. judic . fol. . recovery ( recuperatio , from the fr. recouvrer , i. recuperare ) signifies an obtaining any thing by judgment or tryal of law , as evictio does among the civilians . but there is a true recovery , and a feigned . the true one is an actual or real recovery of any thing , or the value thereof by verdict and judgment . a feigned recovery is a certain form or course set down by law , to be observed for the better assuring lands or tenements unto us ; the end and effect whereof is , to discontinue and destroy estates in remainder and reversion , and to ba●●the intails thereof . and to this formality , there are ( in a recovery with single voucher ) required three parties , the demandant , the tenant , and the vouchee . the demandant , is he that brings the writ of entry , and may be termed the recoverer . the tenant is he , against whom the writ is brought , and may be called the recoveree . the vouchee is he , whom the tenant voucheth , or calls to warranty for the land is demand . a recovery with double voucher , is where the tenant voucheth one , who voucheth another , or the common vouchee ; and a recovery with treble vouchers , is where three are vouched . see west , par . . symb. tit . recoveries , sect . . but , to explain this point : a man , that is desirous to cut off an estate-tail in lands or tenements , to the end , to sell , give , or bequeath them , causeth ( by the contrivance of his councel or atturney ) a feigned writ of entry , sur disseisin in le post , to be brought for the lands , of which , he intends to dock or cut off the intail ; and , in a feigned count or declaration thereupon made , pretends he was disseised by him , who , by a feigned fine or deed of bargain and sale , is named and supposed to be tenant of the lands . this feigned tenant , if it be a single recovery , is made to appear and vouch the bag-bearer of writs , for the custos brevium , in the court of common pleas ( in which court onely the said common recoveries are to be suffered ) who makes default ; whereupon a judgment is , by such fiction of law , entred , that the demandant shall recover , and have a writ of seisin , for the possession of the lands demanded , and that the tenant shall recover the value of the lands , against the lands of the vouchee-bagbearer , a poor unlanded and illiterate person , which is feigned to be a satisfaction for the heir in tail , though he is never to have or expect it ; one edward howes , a bag-bearer , and common vouchee , having in the space of or years , passed or suffered to be recovered against him , by such fictitious actions and pleadings , a considerable part of the lands of england , and obliged his own lands , when he had none at all , to answer the value of the lands , recovered against the tenants or remainders in tail. this feigned recovery is also called a common recovery ; because it is a beaten and common path to that end , for which it is ordained ; viz. to cut off the estates above specified . see new book of entries , verbo , recovery . recoupe ( from the fr. recouper , i. to out again ; also to reply quickly and sharply to ●a peremptory demand ) we use it to defaulk or discount . as , if a man hath ten pound issuing out of certain land , and he disseises the tenant of the land in an assise brought by the disseisce , the disseisor shall recoupe the rent in the damages . recreant ( fr. ) cowardly , faint-hearted . hence recroantise . see cravent . recto , is a writ , called a writ of right , which is of so high a nature , that whereas other writs in real actions , are onely to recover the possession of the lands or tenements in question , which have been lost by an ancestor , or by the party demandant himself , this aims to recover both the seisin , which some ancestor or the demandant himself had ; and also the property of the thing , whereof the ancestor died not seised , as of fee , and whereby are pleaded and tryed both their rights together , viz. that of possession and property . and if a man once lose his cause upon this writ , either by judgment , assise , or battel , he is without remedy , and shall be excluded , per exceptionem rei judicatae . bracton , lib. . tract . . cap. . & seq . where you may read much on this subject . see right . it hath two species : rectum patens , a writ of right patent ; and rectum clausum , a writ of right close . the first is so called , because it is sent open , and is in nature the highest writ of all other , lying always for him that hath fee-simple in the lands sued for , and not for any other . and when it lies for him that challenges fee-simple , and in what cases , see fitz. nat. br. fol. . c. whom see also fol. . or a special writ of right in london , otherwise called a writ of right , according to the custom of london . this writ is also called breve magnum de recto . reg. of writs , fol. . and fleta , lib. . cap. . sect . . a writ of right close , is a writ directed to a lord of ancient demesn , and lies for those , who hold their lands and tenements by charter , in fee-simple , or in fee-tayl , or for term of lite , or in dower , if they are ejected out of such lands , or disseised . in this case a man or his he● may sue out this writ of right close , directed to the lord of ancient demesn , commanding him to do him right in his court. this is also called breve parvum de recto , reg. of writs , fo . . and britton . ca. . in fine . see also fitz. nat. br. fo . . & seq . yet , note that the writ of right patent seems to be extended farther in use then the original intention : for a writ of right of dower , which lies for the tenant in dower , is patent , as appears by fitzherb , natura , brevium , fo . . e. the like may be said in divers other cases ; of which see also the table of reg. of writs , verbo , recto . this writ is properly tryed in the lords court between kinsmen , who claim by one title from their ancestor . but , how it may be thence removed , and brought either to the county or kings court , see fleta , lib. . ca. , & . glanvile seems to make every writ , whereby a man sues for any thing due unto him , a writ of right , lib. . ca. . lib. . ca. . lib. . ca. . recto de dote , is a writ of right of dower , which lies for a woman , that has received part of her dower , and proceeds to demand the remnant in the same town , against the heir . of this see more in old. nat. br. fo . . and fitz. fo . . e. reg. of writs , fo . . and new book of entries , verbo , droyt . recto de dote unde nihil habet , is a writ of right , which lies in case , where the husband , having divers lands or tenements , has assured no dower to his wife , and she thereby is driven to sue for her thirds against the heir or his guardian . old. nat. br. fo . . reg. of writs , fo . . recto de rationabili parte , is a writ that lies alwayes between privies of blood , as brothers in gavelkind , or sisters , or other coparceners , as nephews or neeces , and for land in fee-simple . for example , if a man lease his land for life , and afterwards dies , leaving issue two daughters , and after the tenant for life likewise dies , the one sister entring upon all the land , and so deforcing the other , the sister so deforced shall have this writ to recover her part . fitz. nat. br. fo . . reg. of writs , fo . . recto quando dominus remisit , is a writ of right , which lies in case where lands or tenements that are in the seigneury of any lord , are in demand by a writ of right . for , if the lord hold no court , or otherwise , at the prayer of the demandant or tenant , shall send to the court of the king his writ , to put the cause thither for that time , ( saving to him at other times the right of his seigneury ) then this writ issues out for the other party , and has its name from the words therein comprised , being the true occasion thereof . this writ is close , and must be returned before the justices of the common-bank : old. nat. br. fo . . reg. of writs , fo . . recto de advocatione ecclesiae , is a writ of right , lying where a man has right of advowsen , and the parson of the church dying , a stranger presents his clerk to the church , and he not having brought his action of quare impedit , nor darrein presentment within six moneths , but suffer'd the stranger to usurp upon him . which writ he onely may have that claims the advowsen , to himself and his heirs in fee. and , as it lies for the whole advowsen , so it lies also for the half , the third or fourth part . old nat. br. fo . . reg. of writs , fo . . recto de custodia terrae & haeredis , is a writ , which , by the stat. car. . ca. . is become useless ; as to lands holden in capite or by knight-service , but not where there is guardian in socage , or appointed by the last will and testament of the auncestor . the form of it see in fitz. nat. br. fo . . & reg. of writs , fo . . recto sur disclaimer , is a writ that lies , where the lord , in the court of common-pleas , does avow upon his tenant , and the tenant disclaims to hold of him , upon which disclaimer he shall have this writ , and if the lord aver and prove , that the land is holden of him , he shall recover the land for ever . old nat. br. fo . . which is grounded on the statute of westm . . ca. . rector , ( lat. ) signifies a governor : and rector ecclesi● parochialis , is he that has the charge or cure of a parish-church , qui tantum jus in ecclesia parochiali habet , quantum praelatus in ecclesia collegiata . it has been over-ruled , that rector ecclesiae parochialis is he that has a parsonage , where there is a vicaridge endow'd , and he that has a parsonage without a vicaridge , is called persona : but , the distinction seems to be new and subtile . it is certain bracton uses it otherwise ( lib. . tract . . ca. . ) in these words , et sciendum , quod rectoribus ecclesiarum parochialium competit assisa , qui instituti sunt per episcopos & ordinarios , ut personae . where it is plain , that rector and persona are confounded . note also these words there following ; item dici possunt rectores canonici de ecclesiis praebendatis . item dici possunt rectores , vel quasi abbates , priores & alii , qui habent ecclesias ad proprios usus . see vicar . rectory , ( rectoria ) is taken pro integra ecclesia parochiali , cum omnibus suis juribus , praedi . is , decimis , aliisque proventuum speciebus . spelm. rectus in curia , i. right in court : is he that stands at the bar , and no man objects any offence against him . smith de repub. angl. lib. . ca. . reddendum , is used substantively for the clause in a lease , &c. whereby the rent is reserved to the lessor . coke , lib. . cromwels case , fo . . b. reddition , ( redditio ) is a judicial confession and acknowledgment that the land or thing in demand belongs to the demandant , or at least not to himself . anno & hen. . ca. . perkins , dower , . . redemptions , ( redemptiones ) mulctae gravissimae , utpote quae pro aestimatione capitis ipsius delinquentis impinguntur , anglice ransomes . see misericordia . redisseisin , ( redisseisina ) is a disseisin made by him , who once before was found and adjudged to have disseised the same man of his lands or tenements : for which there lies a special writ , called a writ of redisseisin . old. nat. br. fo . . fitz. nat. br. fo . . see new book of entries on this word . the punishment for redisseisin see in the stat. hen. . ca. . redmans , or radmans , domesday in fine cestrescire . tit. lanc. blacburn hundret . — rex e. tenuit peneverdant . ibi car. sunt in dominio & burgenses , & radmans , & vil. & bovar . these redmans may be the same in signification as the rod or rad knights , men , which by the tenure , or custom of their lands were to ride with , or for the lord of the mannor about his business or affairs . redubbors , or adubbors , are those that buy stoln cloth , and , to the end it may not be known , turn it into some other colour or fashion . briton . ca. . and see inst . fo . . re-entry , ( from the fr. rentrer , i. rursus intrare ) signifies the resuming or re-taking that possession , which we had lately foregone . as , if i make a lease of land or tenement , i do thereby foregoe , or quit the possession ; and , if i condition with the lessee that for non-payment of the rent at the day , it shall be lawful for me to re-enter ; this is as much , as if i conditioned to take again the land into my own hands , and to recover the possession by my own fact , without the assistance of judge or process . reer-county . see rier county . re-extent , is a second extent made upon lands or tenements , upon complaint made , that the former extent was partially executed . brook , tit . extents , fo . . regal fishes , ( anno eliz. ca. . ) are whales and sturgeons ; some add porpusses . the king by his prerogative ought to have every whale cast on shore , or wrecked in all places within this realm ( unless granted to subjects by special words ) as a royal-fish . the king himself shall have the head and body , to make oyl and other things , and the queen the tail to make whalebones for her royal vestments . pat. edw. . m. . dorso . see tract . de auro reginae , pa. . regalia , ( anno eliz. ca. . ) dicuntur jura omnia ad fiscum spectantia : the rights of a king , which the civilians say are six . . power of judicature . . power of life and death . . all kind of arming . . masterless goods . . assessments . . and the value of money . see royalties . also the crown , scepter with the cross , scepter with the dove , st. edwards staff , four several swords , the globe , the orbe with the cross , and other such like used at the coronation of our kings , are called regalia . see the relation of the coronation of king charles the second in bakers chron. regalis justicia , — item praefati barones , ( sc . quinque portuum ) habere debent , ut asserunt , per chartam suam regalem justiciam in villa gernemuth , tempore feriae una cum balivo seu praeposito villae praedictae , viz. cognitionem assisae panis , ulnarum , ponderum & alidrum mensurarum , & similiter voide strand & denne , secundum consuetudines suas usitata● , &c. rot. parl. ed. . nu. . regardant . villain regardant , was called regardant to the mannor , because he had the charge to do all base , villanous services within the same , and to see the same freed of all filthy and loathsome things that might annoy it , coke on litt. fo . . this word is onely applyed to a villain or neif , yet in old books it was sometimes apply'd to services . ibid. regard , ( regardum & rewardum ) from the fr. regard , i. aspectus , respectus ; though it has a well-known general signification of any care or respect , yet a special also , wherein 't is used onely in matters of the forest , and there two wayes ; one for the office of the regarder , the other for the compass of ground belonging to the regarders charge . cromp. jurisd . fo . . . touching the former , thus manwood . the eyre , general sessions of the forest , or justice seat , is to be kept every third year ; and , of necessity the regarders of the forest must first make their regard , which must be done by the kings writ ; and , the regarder is to go through the whole forest , and every bailywic , to see and enquire of the trespasses therein ; ad videndum , ad inquirendum , ad imbreviandum , ad certificandum , &c. part . pa. , & . touching the second , the compass of the regarders charge is the whole forest , that is , all that ground which is parcel of the forest ; for , there may be woods within the limits of the forest , which are no part thereof , and those are without the regard . manwood , part . ca. . num . . anno car. . ca. . henricus rex anglorum omnibus forestariis suis de glocestershire , salutem . sciatis me concessisse & praesenti carta confirmasse ecclesiae s. jacobi de bristowa ( in qua sepultus est robertus comes glocestriae avunculus meus ) & monachis ibidem deo servientibus , pro salute mea , & pro anima ipsius comitis , quod terra ipsius ecclesia , & monachorum in ea deo servientium de cisseleia , & boscus ejusdem terrae , sint quieta de rewardo & decimationis exigentia pro essartis . et prohibeo ne inter assarta amodo computetur . teste roberto episcopo winton . regarder , ( regardator , fr. regardeur , i. spectator ) is an officer of the kings forest , who is sworn to make the regard of it , as has been used in ancient time ; and , to view and enquire of all offences of the forest , as well of vert , as of venison , and of all concealments of any offences or defaults of the foresters , and all other officers of the kings forest , concerning the execution of their offices , &c. more particulars of the regarders office , how he is chosen , and the form of his oath , see in manwood , par . . pag. . . & . & cromp. juris . fol. . regio assensu , is a writ , whereby the king gives his royal assent to the election of a bishop or abbot . reg. of writs , fol. . b. registry ( registrum , from the old fr. gister , i. in lecto reponere , suo loco constituere ) signifies the office , books , and rolls , wherein the proceedings of the chancery , or any spiritual court , are recorded : the writer and keeper whereof , is called the register , in latin registrarius . register is also the name of a book , wherein are expressed most of the forms of writs used at the common law , called the register of the chancery ; of which , thus spelman — codex dicitur quo brevia regia , tam originalia quam judicialia formularum inscribuntur ; hujus codicis me minit westm . . cap. . & . this register is one of the most ancient books of the common law ; according to coke on littl. fol. . register of the parish church ( registrum ecclesiae parochialis ) is that wherein baptisms , marriages , and burials are , in each parish , overy year orderly registred . which was laudably instituted by the lord cromwel in september , anno . while he was viccar-general to king henry the eight . regius professor ( anno car. . ca. . ) henry the eight founded five lectures in each university , viz. of divinity , hebrew , greek , law , and physick ; the readers of which lectures are called in the university statutes , regii professores . regrator ( regratarius , fr. regrateur ) did anciently signifie such , as bought by great , and sold by retail . anno edw. . stat . . cap. . but now it signifies him that buys and sells any wares or victuals , in the same market or fair , or within four miles thereof . anno edw. . cap. . & eliz. . in the civil law he is called dardanarius , a dardano quodam hujus sceleris authore . in ancient time , both the ingrosser and regrator were comprehended under the word forestaller . inst . . rehabere facias seisinam quando uicecomes liberabit seisinam de majore parte , quam deberet , is a writ judicial . reg. of writs judic . fol. . . there is another writ of this name and nature , fol. . rehabilitation ( anno hen. . cap. . ) is one of those exactions mentioned in the said statute , to be claimed by the pope heretofore in england ; and seems to signifie a bul or breve , for re-inabling a spiritual person to exercise his function , who was formerly disabled ; or a restoring to former ability . rejoynder ( rejunctio ) signifies an answer or exception to a replication : for first , the defendant puts in an answer to the plaintiffs bill , which is sometimes called an exception . the plaintiffs answer to that , is called a replication ; and the defendants to that , duplication , in the civil law , and rejoynder with us , especially in chancery . west , par . . symbol . tit . chancery , sect . . rekpenis . constitut . rob. dunelm . episc . anno . cap. . — porro huic sanctioni adjicimus , quod si plures liberi proprium habentes , in parontum pariter familia vivant , ad denarios qui nuncupantur rekpenis minime arceantur , cum sic communiter intrinscois aluntur a parentibus , sic in extrinsecis ab eisdem laetentur pariter se defendi . relation ( re latio ) is , where , ( in consideration of law ) two times , or other things are considered , as if they were all one ; and by this , the thing subsequent is said to take his effect by relation at the time preceding : as if a. deliver a writing to b. to be delivered to c. as the deed of a. when c. hath paid a sum of money : now when the money is paid , and the writing delivered , this shall be taken as the deed of a. at the time when it was first delivered . so bills of parliament , to which the king assents on the last day of parliament , shall relate , and be of force , from the first day of the beginning of the parliament . coke ( lib. . butlers case ) says it is fictio juris . release ( relaxatio ) is an instrument , whereby estates , rights , titles , entries , actions , and other things , are sometimes extinguished , sometimes transferred , sometimes abridged , and sometimes enlarged . west , par . . symb. lib. . sect . . and there is a release in fact , and a release in law. in fact , is that which the very words expresly declare ; in law , is that which acquits by way of consequent , or intendment of law ; an example whereof , you have in perkins , grants , . how these are available , and how not , see littleton at large , lib. . cap. . and of divers sorts of releases , see new book of entries , verbo , release . releif ( relevamen , relevium ) signifies a certain sum of money , which the tenant , holding by knight-service , grand sergeanty , or other tenure , for which homage or regalservice was due , and after the death of his ancestor , paid to his lord at his entrance . mag. charta , cap. . and edw. . stat . . bracton , lib. . cap. . says it is called a releif , quia haereditas , quae jacens fuit per antecessoris decessum , relevatur in manus haeredum , & propter factam relevationem , facienda erit ab haerede quaedam praestatio , quae dicitur relevium . see the stat. car. . cap. . a releife is likewise paid in soccage , tonure , or petit serjeanty , where a rent , or any thing is paid , by rendring as much as the rent , or payment reserved . relegation ( relegatio ) a banishing , or sending away . as abjuration is a sorswearing the realm for ever ; relegation is taken for a banishment for a time onely . coke on littl. fol. . religiosi , religious men , such as enter'd into some monastery , or convent . in ancient deeds of sale of land we often find the vendee restrain'd from giving or alienating it viris religiosis vel judaeis ; to the end the land might not fall into mortmiain . see judaism . — rex vicecom . — praecipimus tibi quod clamari facias sine dilatione per comitatum tuum , quod nulli , sicut diligunt corpora & catalla sua , malum faciant vel dicant viris religiosis vel clericis , contra pacem nostram ; et si quem inde attingere possimus , ad proximum quercum cum suspendi faciemus . t. meipso apud marlebergh , xi apr. claus . joh. m. . remainder , remanentia ) signifies an estate limited in lands , tenements , or rents to be enjoyed after the estate of another expired . for example , a man may grant land to one for term of his life , the remainder to another for term of his life . litt. ca. atturnment , fo . . and this remainder may be either for a certain term , or in fee-simple , or fee-tail , as appears by brock , tit . done & remainder , fo . . — glanvile , lib. . ca. . in fine , has these words ; notandum , quod nec episcopus , nec abbas , quia eorum baroniae sunt de elemosina dom. regis , & antecessorum éjus , non possunt de dominicis suis aliquam partem dare ad remanentiam , sine assensu & confirmatione domini regis . in like sort bracton uses it , lib. . ca. . & lib. . tract . . ca. . nu . . see new book of entries , verbo remainder . in eo igitur differunt remanentia & reversio : haec post statutum terminum ad donatorem vel haeredes suos ( uti in fontem ) remeat : illa vero ad tertium quempiam ( seu extraneum ) progreditur . spelm. remembrancers of the exchequer , ( rememoratores scaccarii ) are three officers ; one called the kings remembrancer , ( anno eliz. ca. . ) the second the lord treasurers remembrancer , upon whose charge it lies , to put the lord treasurer , and the rest of the justices of that court in remembrance of such things as are to be called on , and dealt in for the kings behoof . the third is called the remembrancer of the first-fruits , anno rich. . stat. . ca. & . these ( anno edw. . ca. . ) are called clerks of the remembrance . the kings remembrancer enters in his office all recognizances taken before the barons for any the kings debts , for appearances , or observing of orders ; he takes all bonds for the kings debts , for appearance or observing orders , and makes proces upon them , for the breach of them . he writes proces against the collectors of customs , subsidies , and fifteenths , for their accounts . all informations upon penal statutes are entred in his office ; and all matters upon english bills in the exchequer chamber remain in his office. he makes the bills of compositions upon penal laws , and takes the stalment of debts ; he has deliver'd into his office all manner of indentures , fines , and other evidences , that concern the assuring or passing any lands to or from the crown . he yearly in crastino animarum reads in open court the statute for election of sheriffs , and gives them their oath : he reads in open court the oath of all the officers of the court , when they are admitted . the treasurers remembrancer makes process against all sheriffs , escheators , receivers , and bailiffs for their accounts : he makes process of fieri facias and extent , for any debts due to the king , either in the pipe , or with the auditors ; makes proces for all such revenue , as is due to the king by reason of his tenures . he makes record , whereby it appears whether sheriffs and other accountants pay their profers due at easter and michaelmas . he makes another record , whether sheriffs and other accountants keep their dayes of prefixion . all estreats of fines , issues , and americiaments , set in any courts of westminster , or at the assises or sessions , are certify d into his office , and are by him deliver'd to the clerk of the estreats to make out process upon them . there are also brought into his office all the accompts of customers , controllers , and other accountants , to make entry thereof on record . see repertory of records , fo . . the remembrancer of the first-fruits takes all compositions , and bonds for first-fruits and tenths , and makes process against all such as pay not the same . remitter , ( from the lat. remittere , to restore , or send back , ) where a man has two titles to land ; and is seised of the later , and , that proving defective , he is restored to the former more ancient title ; this is a remitter , fitz. nat. br. fo . . f. dyer , fo . . num . . and see brook , tit . remitter . if land descend to him that has right to it before , he shall be remitted to his better title , if he will. doctor and student , ca. . fo . . b. see terms of the law , on this word , & coke on litt. li. . c. . render , ( from the fr. rendre . i. reddere , retribuere ) and so it signifies with us . a fine with render , is , where lands are render'd back by the cognizee to the cognizor . also there are certain things in a mannor that lie in prender , that is , which may be taken by the lord or his officers when they chance , without the tenants leave , as escheats , &c. and certain that lie in render , that is , must be rendred or answer'd by the tenant , as rents , reliefs , heriots , and other services . west , par. . symb. sect. . c. also some service consists in seisance , some in render . perkins , reservations , . renegeld . per renegeld johannes stanley ar. clamat habere de qualibet bovata terrae infra feodum de aldford d , exceptis dominicis terris & terris in feodo praedicto infra hundred . de macclefeld . rot. plac. in itin. apud cestriam , hen. . renovant , ( from renovo , to renew , or make again ) — the parson sued one for tithes to be paid of things renovant , but this horse , being onely for labor and travel , would not renew , &c. croke part , fo . . rent , ( reditus ) is a summ of mony , or other consideration , issuing yearly out of lands or tenements . plowden , casu , browning , fo . . b. . a. & . b. of which there are three sorts ; rent-service , rent-charge , and rent-seck . rent-service is , where a man holds his land by fealty , and certain rent , or by fealty , service and rent . litt. lib. . ca. . fo . . or that which a man , making a lease to another for years , reserves yearly to be paid him for the same . rent-charge is , where a man chargeth his land or tenements , by deed indented , either in fee , ' fee-tail , or for term of life , with a summ of money to be paid to the grantee yearly , with clause of distress for not payment thereof , litt. ubi supra . rent-seck , otherwise dry-rent , is that , which a man , making over an estate of lands or tenements by deed indented , reserves yearly to be paid him , without clause of distress , mentioned in the indenture . see more on this subject in the terms of the law ; and the difference between a rent and an annuity in doctor and student , ca. . dial . . rents resolute , ( redditus resoluti ) are reckon'd among the fee-farm rents , to be sold by the stat. car. . ca. . and are such rents or tenths , as were anciently payable to the crown from the lands of abbies and religious-houses , and , after the dissolution , these abby-lands being demised to others , the said rents were still reserved , and made payable again to the crown . renusiator , — et sunt communes latrones & renusiatores hominum , &c. trin. ed. . ebor. . q. reparatione facienda , is a writ that lies in divers cases , whereof one is , where there are three tenants in common , join-tenants , or pro indiviso ▪ of a mill or house , which is faln into decay ; and the one is willing to repair it , the other two not . in this case the party willing shall have this writ against the other two , fitz. nat. br. fo . . where you may see the form and many uses of it , as also in reg. of writs , fo . . b. repeal , ( from the fr. rappel , i. revocatio ) signifies the same with us , as the repeal of a statute , is the revoking or disanulling it . brook uses repellance in the same sence . re-pleader , ( replacitare ) is to plead again , that which was once pleaded before . see brook and new book of entries , verbo , repleader . replegiare de averiis , is a writ brought by one , whose cattel are distrained , or put in pound upon any cause by another , upon surety given to the sheriff to pursue , or answer the action at law. anno hen. . ca. , fitz. nat. br. fo . . see reg. of writs for divers sorts of this writ ; new book of entries , ver●o ▪ replevin , and dyer , fo . . num . . replevie , ( plevina ) is derived of replegiare , to re-deliver to the owner upon pledges or suerty ; and signifies the bringing the writ called replegiari facias , by him that has his cattel or other goods distrained by another for any cause , and putting in surety to the sheriff , that upon delivery of the thing distreined , he will pursue the action against him that distreined , coke on litt. lib. . ca. . sect. . goods may be replevied two manner of wayes , viz. by writ , and that is by the common-law , or by plaint , and that is by statute-law , for the more speedy having again of their cattel and goods . replevie is used also for the bailing a man , pl. cor. fo . , . and westm . . ca. . and . replevish , ( replegiare ) is to let one to main-prise upon surety . anno ed. . ca. . replication , ( replicatio ) is an exception of the second degree made by the plaintiff upon the first answer of the defendant , west , par . . symb. tit . chancery , sect. . and westm . . ca. . it is that which the plaintiff replies to the defendants answer in chancery ; and , this is either general or special . special is grounded upon matter arising out of the defendants answer , &c. general , so called , from the general words therein used . report , ( from the lat. reportare ) is a publick relation , or a bringing again to memory cases judicially argued , debated , resolved , or adjudged in any of the kings courts of justice , with such causes and reasons as were delivered by the judges of the same . coke on litt. fo . . also when the chancery , or other court refers the stating some case , or computing an account , &c. to a master of chancery , or other referree , his certificate therein , is called a report . reposition of the forest , ( i. a re-putting to ) was an act whereby certain forest-grounds , being made purlieu upon view , were by a second view laid or put to the forest again . manwood , par. . pa. . reprisels , ( reprisalia ) from the fr. reprise , i. recaptio , vel captio rei unius in alterius satisfactionem ) is all one in the common and civil law. reprisalia est potestas pignorandi contra quemlibet de terra debitoris data creditori pro injuriis & damnis acceptis . vocab . utriusque juris . this among the ancient romans was called clarigatio . in the statute edw. . stat. . ca. . it is called law of marque ; because one destitute of justice in another territory , redresseth himself by the goods belonging to men of that territory . reprises , ( fr. resumptions , or takings back . ) we use it for deductions and duties , which are yearly paid out of a mannor or lands , as rent-charges , pensions , fees or stewards , or bailiffs , &c. therefore we say the mannor of dale yields l. per annum ultra reprizas , besides all reprises . requests , ( curia requisitionum , ) see in court. the place where this court was held , was anciently called camera alba . rot. parl. anno edw. . resceit , ( receptio ) is an admission , or receiving a third person to plead his right , in a cause formerly commenced between other two , new book of entries , verbo resceit . as if tenant for life or years brings an action , he in the reversion comes in , and prayes to be received , to defend the land , and to plead with the demandant . see brook tit. resceit , fo . . and perkins , dower , . resceit is also apply'd to an admittance of plea , though the controversie be onely between ●two . brook. tit . estoppel . coke on litt. fo . . b. resceit of homage , ( receptio homagii ) is the lords receiving homage of his tenant at his admission to the land. kitchin , fo . . see homage . rescous , ( rescussus ) from the fr. rescousse , i. liberatio , redemptio ) is an illegal taking away , and setting at liberty , a distress taken , or a person arrested by process , or course of law ; which is a rescouse in deed : and , where a man has taken a distress , and the cattel distreined , as he is driving them to the pound , happen to go into the house of the owner , if he that took the distress demand them of the owner , and he deliver them not , this is a rescous in law. coke on litt. lib. . ca. . sect. . it is also used for a writ which lies for this fact , called breve de rescussu , whereof you may see both the form and use in fitz. nat. br. fo . . reg. of writs , fo . . and new book of entries , verbo rescous : this , in some cases , is treason , upon matters of treason , and in some felony , in cases of felony . cromp. justice , fo . . b. rescussor , is he that commits such a rescous . crokes rep. part , fo . . reseiser , ( reseisire ) is a taking again of lands into the kings hands , whereof a general livery or ouster le main was formerly missued , contrary to order of law. stamf. praerog . . see resumption . reservation , ( reservatio ) a providing for store ; as when a man departs with his land , but reserves or provides for himself a rent out of it for his own livelihood . sometimes it serves to reserve a new thing ▪ and sometimes to except part of the thing in esse that is granted . see perkins reservations , per totum . resiance , ( resiantia ) from the fr. reseant vel resseant , i. resident ) signifies a mans aboad or continuance in a place , old nut. br. fo . . whence also comes the participle resiant , that is , continually dwelling or abiding in a place , kitchin , fo . . it is all one in truth with residence , but that custom ties this onely to persons ecclesiastical . veteri autem jure nostro etiam & scotico aliud significat , utpote morbum validum seu veteranum , quo quis exire de suis aedibus prohibetur . essonium igitur quod de malo lecti nuncupatur ; hoc est excusatio , quod ratione infirmitatis sistere se in foro non valeat , essonium nuncupant de reseantisa . glanvile , lib. . ca. . — quandoque intervenit ( essonium ) ex infirmitate de reseantisa . ubi in margine notatur , essonium de reseantisa idem valet quod essonium de malo lecti . — et galli apertius dixerunt exoine de mal resseant . spelm. residence , ( r 〈…〉 tia ) is peculiarly used both in the canon and common-law , for the continuance or aboad of a parson or vicar upon his benefice : the defalt whereof ( except the party be qualify'd and dispensed with ) is the loss of ten pounds for every moneth . anno hen. . ca. . resignation , ( resignatio ) is used particularly for the yielding up a benefice into the hands of the ordinary , otherwise called renunciatio by the canonists . and , though it signifie all one in nature with the word surrender , yet it is by use restrained to the yielding up a spiritual living as aforesaid , and surrender to the giving up temporal lands into the hands of the lord. and , a resignation may now be made into the hands of the king , as well as of the diocesan , because he has supremam authoritatem ecclesiasticam , as the pope had here in times past . plowden , casu gr●ndon , fo . . resort , or ressort , ( fr. ) is a word used properly in a writ of tayle or cousenage , as descent is in a writ of right : in french it signifies the authority or jurisdiction of a court. — salvo tamen tam ressorto quam aliis jure nostro , & jure etiam alieno . lit. pat. philip le hardy r. franc. respectu computi vicecomitis habendo , is a writ for the respiting a sheriffs account , upon just occasion , directed to the treasurer and barons of the exchequer , reg. fo . , and . respite , ( respectus ) is used for a delay , forbearance , or continuation of time . praecipio tibi , quod poni facias in respectum usque ad aliquem terminum competentem . glanvile , lib. . ca. . in brevi regis . respite of homage , ( respectus homagii ) is the forbearance of homage , which ought first of all to be performed by the tenant , holding by homage ; but , it had the most frequent use in such as held by knight-service in capite ; who , did pay into the exchequer every fifth term , some small summ of money to be respited , the doing their homage , see the stat. car. . ca. . whereby this respite of homage is taken away , as a charge incident , or arising from knight-service , &c. respondeat superior , where the sheriffs are removable , as in london , for insufficiency , responde●t superior , that is , the mayor and commonalty of london . pur insufficiency del bailiff d'un libertie , respondeat dominus libertatis , ed. . . see inst . fo . . responsalis , ( qui responsum defert ) is he that appears for another in court at a day assigned , gianvile , lib. . ca. . but fle●a , ( lib. . ca. . ) makes a difference between atturnatum , essoniatorem & responsalem ; as if essoniator came onely to alledge the cause of the parties absence , be he the demandant or tenant ; and responsalis came for the tenant , not onely to excuse his absence , but to signifie what trial he meant to undergo , viz. the combat or the country . see atturney . responsions , ( responsiones ) seems to be a word used particularly by the knights of st. john of hierusalem , for certain accounts made to them by such as held their lands or stocks , anno hen. . ca. . restitution , ( restitutio ) is a yielding up , or restoring any thing unlawfully taken from another . it is also used for the setting him in possession of lands or tenements , who had been unlawfully disseised of them ; which , when to be done , and when not , see cromp. just . of p. fo . . usque . restitutione extracti ab ecclesia , is a writ to restore a man to the church , which he had recover'd for his sanctuary , being suspected of felony . reg. of writs , fo . . a. restitutione temporalium , is a writ that lies where a man , being elected and confirmed bishop of any diocess , and has the kings royal assent thereto , for the recovery of the temporalties or barony of the said bishoprick . which is directed from the king to the eschaator of the county , the form whereof you have in reg. of writs , fo . . and in fitz. nat. br. fo . . resummons , ( resummonitio ) signifies a second summons , or calling a man to answer an action , where the first summons is defeated , or suspended by any occasion , as the death of the party , or such like . see brook tit . resummons , fo . . see of these four sorts , according to four divers cases in the table of reg. of writs judicial , fo . . and new book of entries , verb. reattachment & resummons . resumption , ( resumptio ) is particularly used for the taking again into the kings hands such lands or tenements , as before , upon false suggestion or other error , he had granted by letters-patent to any man , brook tit . repellance & resumption , fo . . and so it is used anno hen. . ca. . & hen. . ca. see reseiser . retail , ( anno & iid. . ca. . ) qui rem integram ementes , per minutiores eam partes distrah●bant . anglice , to buy by great , and sell by retail , i. by parcels . reteiner , ( from retineo ) signifies a servant , not menial nor familiar , that is , not continually dwelling in the house of his lord or master , but onely wearing his livery , and attending sometimes upon special occasions . this livery was wont to consist of hats ( or hoods ) badges , and other suites of one garment by the year , and were given by lords and great men many times on purpose for maintenance and quarrels , and therefore have been justly prohibited by many statutes , as by r. . ca. . upon pain of imprisonment and grievous forfeiture to the king. and again , anno ejusdem , ca. . & ejusdem , ca. & . and hen. . ca. . by which the offenders herein should make ransom at the kings will ; and any knight or esquire hereby duely attainted , should lose his said livery , and forfeit his fee for ever , &c. which statute is further confirmed and explained anno hen. . ca. . and anno ejusdem , ca. . & anno hen. . ca. . and yet this offence was so deeply rooted , that edward the fourth was forc'd to confirm the former statutes , and further to extend the meaning of them , as appears by edw. . ca. . adding a special pain of five pounds on every man that gives such livery , and as much on every one so reteined , either by writing , oath , or promise for every moneth . these by the feudists are called affidati : and , as our reteiners are here forbidden , so are those affidats in other countries . but , most of the above mentioned statutes are repealed by car. . ca. . retenementum , ( from retineo ) a withholding , reteining , or keeping back — sine ullo retenemento was a frequent expression in old deeds . retraxit , is so called , because it is the emphatical word in the entry ; and is , where the plaintiff or demandant comes in person alone , or with the defendant into court , and sayes , he will proceed no further ; which is peremptory , and a perpetual barr , and may be pleaded as such to the plaintiff in the same action for ever . qui semel actionem renunciavit , amplius repetere non potest . coke on litt. lib. . ca. . s. . where you shall find the difference betwixt nonsute and retraxit . return , ( returna vel retorna ) from the fr. retour , i. reditio , reversio ) has two particular applications , namely , the return of writs by sheriffs and other officers , which is a certificate made to the court from whence the writ issued , of that which they have done , touching the execution of the same writs . of returns in this signification , speaks the statute of westm . . ca. . so is the return of a commission , a certificate , or answer to the court of that which is done by the commissioners , sheriff , bailiff , or others , unto whom such writs , commissions , praecepts , or mandats , are directed . also certain days in every term are called returns , or dayes in bank : as hillary term has four returns , viz. octabis hilarii , quindena hilarii , crastino purificationis , octabis purificationis : easter term five , viz. quindena pasche , tres pasche , mense pasche , quinque pasche and crastino assensionis domini . trinity term four , viz. crastino trinitatis , octabis trinitatis , quindena trinitatis , tres trinitatis : and michaelmas term six returns , viz. tres michaelis , mense michaelis , crastino animarum , crastino martini , octabis martini , quindena martini . see the statutes of dayes in bank , anno hen. . hen. . ca. . and car. . ca. . the other application of this word is in case of replevin ; for , if a man distrain cattel for rent , &c. and afterwards so justifie or avow his act , that it is found lawful , the cattel , before deliver'd to him that was distrained , upon security given to follow the action , shall now be returned to him that distrained them , brook tit . return d'avers & hommes , fo . . returno habendo , is a writ that lies for him , who has avow'd a distress made of cattel , and proved his distress to be lawfully taken , for the return of the cattel distreined , unto him , which before were repl 〈…〉 by the party distreined , upon surety given to pursue the action , or when the plaint or action is removed by recordari ; or accedas ad curiam , into the court of common pleas , and he , whose cattel were distrained , makes default , and doth not declare or prosecute his action . returnum averiorum , is a writ judicial , and the same with retorno habendo , granted to one impleaded for taking the cattel of another , and unjust detaining them contra vadium & plegios ; and appearing upon summons , is dismissed without day , by reason the plaintiff makes default , and doth not declare ut supra , and it lies for the return of the cattle to the defendant , whereby he was summoned , or which were taken for security of his appearance upon the summons . regist . of writs judic . fol. . a. returnum irreplegiabile , is a writ judicial , sent out of the common pleas to the sheriff , for the final restitution or return of cattle to the owner , unjustly taken by another , as damage-feisant , and so found by the jury before justices of assise in the county ; or otherwise , by default of prosecution . for which , see reg. of writs judic . fol. . ●eve alias greve ( germanicè grave , sax. gerefa . praefectus , praepositus ) signifies the bailiff of a franchise or mannor , especially in the west parts . hence shire-reve , a shiref . see kitchin , fol. . see greve , and shiref , and tun-greve . see verstegan , cap. . and church-reve . reveland . see teinland . revenue ( fr. revenu ) signifies properly the yearly rent and profits that accrews to every man from his lands and possession . reversion ( reversio ) signifies a returning again : therefore reversio terrae est tanquam terra revertens in possessione donatori sive haeredibus suis post donum finitum . coke on littl. fol. . b. it hath a double acception ; the one is , jus revertendi cum status possessionis defecerit ; and this is but an interest in the land , when the occupation and possession of it shall fall , and so it is commonly taken . . when the possession and estate , which was parted with for a time ceaseth , and is determined in the persons of the alienees , assignees , grantees , or their heirs , or effectually returns to the donor , his heirs , or assigns , whence it was derived . this is the most proper signification of the word , which is derived from revertor , & apte dici non potest reversio , antequam revertatur in facto . see littl. lib. . cap. . and see remainder . review ( fr. reveue ) a bill of review in chancery , is , where the cause hath been heard , and the decree signed and enrolled ; and some error in law , appears in the body of the decree , or new matter discovered in time after the decree made : which bill must be exhibited by leave of the court , and not otherwise . coll. of orders in chanc. pag. . reviving , is a word metaphorically applied to rents and ac 〈…〉 and signifies a renewing them , after they 〈◊〉 extinguished . whereof see divers examples in brook , tit . revivings of rents , action , &c. fol. . bill of revivor , is where a bill hath been exhibited in chancery against one , who answers , and before the cause is heard , or if heard , the decree be not inrolled , and either party dies : in this case a bill of revivor must be brought , to the end , the former proceedings may stand revived , and the cause be finally determined . revocation ( revocatio ) is the recalling a thing granted : of which , you have divers in the register of writs . as , revocationem brevis de audiendo & terminando , fol. . revocationem praesentationis , fol. , , &c. rewey ( anno eliz. cap. . ) — so as the same cloaths , being put in water are found to shrink , rewey , squally , cockling , light , and notable faulty , &c. i. unevenly wrought , or full of rews . ribaud ( fr. ribauld ) a rogue , rascal ; fornicator , whoremonger . rot. parl. edw. . num . . petition against ribauds and sturdy beggars . rider-roll see in roll. ridge or rig of land ( riga ) terram quam è pluribus sul●u in agg●rem efferunt arantes , ita ut sicca sedes frumentis habeatur , romani strigam ( atque inde agros strigatos ) nos , a ridge of land. spel. yet i have seen in the exemplification of a writ of partition , anno eliz. teste jacobo dyer mil. unam acram terrae arabil . continen . quinque porcas terrae , anglico ridges . ridings , are the names of the parts or divisions of yorkshire , being three , viz. east-riding , west-riding , and north-riding , and mentioned in the statute of hen. . cap. . and ejusdem , cap. . in indictments in that county , it is requisite , that the town and the riding be expressed . west , par . . symb. tit . indictnents , sect . . q. riens passe per le fait , is the form of an exception taken in some cases to an action , see brook , tit estraunger al fait ou record . riens arrear , is a kinde of plea used to an action or debt upon arrearages of account , whereby the defendant does alleage that there is nothing arrear . book of entries . riens per descent ( i. nothing by descent ) is the plea of an heir , where he is sued for his ancestors debt ▪ and hath no land from him by descent . see part cokes rep. fol. . riens deins le gard , was a challenge to a jury or enquest within london , &c. but it is abrogated by the statute hen. . cap. . rier county ( retro comitatus ) from the fr. arriere , i. posterior ) in the stat. . edw. . cap. . is opposite to open county ; and by comparing that statute with west 〈…〉 . . cap. . it appears to be some publick place , which the sheriff appoints for receipt of the kings money , after the end of his county . fleta says it is , dies crastinus post comitatum . lib. . cap. . right ( jus ) in general signification , includes not onely a right , for which a writ of right lies , but also any title or claim , either by force of a condition , morgage , or the like , for which no action is given by law , but onely an entry . coke on littl. lib. . cap. . sect . . & . there is jus proprietatis , a right of ownership . jus possessionis , a right of seisin or possession . and jus proprietatis & possessionis , a right both of property and possession ; which was anciently called jus duplicatum . see recto & droit . right in the court. see rectus in curia . rime ( rima ) is taken for a mean kinde of verse , commonly made by some unskilful poetaster . of a libellous and rebellious rime , i have thought fit to insert this abstract of an ancient and memorable record . placita coram domino rege apud ebor. de termino pasche anno regni regis ricardi secundi , . quamplurimi de cotingham & villis circumjacentibus indictantur , quod ipsi alligati fuerint quilibet ad alterum sustinendum & manutenendum omnes querelas suas versus quoscunque : et quod modo guerrino obsiderunt villam de kingston super hull , & pontes circumjacentes diripuerunt , ita quod nullus ire vel redire posset ad dictam villam , ac insuper fecerunt rimam in anglicis verbis , & dictam rimam publice apud beverley proclamari fecerunt die , &c. quae rima sequitur in haec verba . in the countrey hard was we , that in our soken shrews should be , with all for to bake . among you friers it is soe , and other orders many moe , whether they sléep or wake . and yet will ilke an help up other , and maintain him al 's his brother , both in wrong and right . and also will in strand and stoure maintain our neighbour with all our might . ilke man may come and goe among us , both to and fro , say you sickerly . but bethning wil we suffer none , neither of hob , nor of john , with what may he merry be . for unkinde we ware , if we suffered lesse or mare any villan hethning . but it were quite double again , and accord , and be ●ul faine to byde dressing . and on that purpose , yet we stand , who so doth us any wrang , in what place it fall . yet he must al 's wée le , al 's have i hap and héele , doe againe us all . sed perdonantur ex eis . record . continet quatuor rotulos . ringhead ( anno eliz. cap. . ) an engin used in stretching woollen cloth. riot ( fr. riotte , quod non solum rixam & jurgium significat , sed vinculum etiam , quo plura in unum , fasciculorum instar , colligantur ) signifies the forcible doing an unlawful act , by three or more persons assembled together for that purpose . west , par . . symb. tit . indictments , sect . . the differences and agreements between a riot , rout , and unlawful assembly , see in lamb. eiren. lib. . cap. . stat. mar. cap. . and kitchin , fol. . who gives these examples of riots : the breach of enclosures , banks , conduits , parks , pounds , houses , barns , the burning of stacks of corn , &c. lamb. ubi supra mentions these : to beat a man , to enter upon a possession forcibly . see rout and unlawful assembly ; see also , in cromp. justice of peace , divers cases of riots . anno rich. . cap. . and hen. . cap. . see rout. ripariae ( from ripa , a bank ) in the statute of westm . . cap. . signifies the water or river running between the banks , be it salt or fresh . inst . fol. . the word occurs also in rot. cart. edw. . num . . ripiers ( riparii , a fiscella , qua in devehendis piscibus utuntur . anglice a ripp ) are those that use to bring fish from the sea coast to the inner parts of the land. cam. brit. pag. . roather beasts ( anno edw. . cap. . ) see rother-beasts . robbery ( robaria ) from the fr. robbe , i. vestis ) is a felonious taking away another mans goods from his person , presence , or estate against his will , putting him in fear , and of purpose to steal the same . west , par . . symbol . tit . indictments , sect . . this is sometimes called violent theft , which is felony , of two pence . kitchin , fol. . & . see cromptons justice of peace , fol. . b. robbers ( robatores ) were so called originally , because they onely took away the robes or cloaths from travellers ; latrones validi , qui in personas hominum insilientes , bona sua diripiunt . robersmen or roberdsmen ( anno edw. . cap. . and rich. . cap. . ) lambert interprets them to be mighty thieves . eiren. lib. . cap. . sir edward 〈…〉 ke in his third instit . fol. . says , robin-hood lived in richard the first 's time in the borders of england and scotland by robbery , burning houses , rape , and spoil , &c. and that these roberdsmen took name from him . kod ( roda terrae ) is otherwise called a pearch , and is a measure of sixteen foot , and a half long ; and in staffordshire twenty foot , to measure land with . see pearch . rod knights alias rad knights ( from the sax. rad , angl . road , i. equitatus , & tnyt , i. puer , minister , famulus ; quasi pueri vel ministri equitantes ) were certain servitors , who held their land by serving their lords on horsback . debent equitare cum domino suo de manerio in manerium , vel cum domini uxore . bracton , lib. . cap. . num . . not much unlike our retainers . rose-tyle alias creast-tyle , is that tyle which is made to lay upon the ridge of the house . anno edw. . cap. . rogue ( rogus , from the fr. rogue , arrogans ) signifies an idle sturdy beggar , who ( wandring from place to place without pasport , after he hath been by justices , bestowed or offered to be bestowed on some certain place of aboad ) is worthily so called ; who for the first offence , is called a rogue of the first degree , and punished by whipping and boring through the grissel of the right ear , with a hot iron , an inch in compass ; and for the second offence is called a rogue in the second degree , and put to death as a felon , if he be above eighteen years old . see the stat. eliz. cap. . and ejusdem , cap. . and anno cap. . see lamb. eiren. lib. . cap. . rogus ( lat. ) a great fire ; also a pile of wood. — mandatum est constabulario castri de divis. et custodi forestae de cippeham , quod fieri fac . unum rogum in foresta praedicta ad operationes castri praedicti , prout melius viderit expedire , &c. t. x maii. claus . hen. . m. . rogus cum comburitur , pira est congeries lignorum ad comburendum . vocab . utriusque juris . roll ( rotulus ) signifies a schedule of paper or parchment , which may be turned or wound up with the hand to the fashion of a pipe : of which , there are in the exchequer several kindes , as the great wardrobe roll , the cofferers roll , the subsidy roll , &c. of which , see the practice of the exchequer court , fol. . rider-roll ( noys reports , fol. . ) the court ex officio may award a certiorari ad informandam conscientiam ; and that which is certified , shall be annexed to the record , and is called a rider roll. or a rider roll is a schedule or small piece of parchment , not seldom sewed or added to some part of a roll or record . rolls , or office of the rolls in chancery-lane , anciently called domus conversorum , was an house built or appointed by king henry the third , for such jews as were converted to the christian faith : but king edward the third , in the one and fiftieth year of his raign , expulsed them for their wickedness , and deputed the place for the custody of the rolls , and records of the chancery ; the master whereof , is the second person in chancery , and in the absence of the lord chancellor , or lord keeper , sits as judge , being commonly called the master of the rolls . romefeoh , romepeny , ( sax. romfeoh , i ▪ nummus romae datus , nam feoh est nummus , pecunia , stipendium ; rompening , romae denarius ; pening enim ( hodie a peny ) est denarius . vide romescot . romescot ( romefeoh vel romefee , rome-peny , alias denarius sancti petri & hearthpony ) is compounded of rome and scot , from the sax. sceat , i. census , pecunia , quasi , nummus romae dicatus . it was an annual tribute of one peny from every family or houshold , paid yearly to rome at the feast of st. peter ad vincula , aug. it was given by inas , king of the west-saxons , anno . as an alms , being in pilgrimage at rome , and was prohibited in the days of edward the third . it amounted to three hundred marks , and a noble yearly romfeoh in festo sancti petri ad vincula debet reddi — qui supra tenebit , reddat episcopo denarium illum , & denarios addat , & regi solidos . ll. hen. cap. . see peter-pence . rood of land ( rodata terr● ) is the fourth part of an acre . anno eliz. cap. . rother-beasts ( sax. hryther ) under this name are comprehended oxen , cows , steers , heyfers , and such like horned-beasts . anno jac. cap. . and in herefordshire , the dung of such beasts is still called rothersoyl . rotulus wintoniae , domesday book so called , because it was of old kept at winchester , among other records and monuments of the kingdom . see domesday . some say there was a more ancient record or book , of like nature with domesday , but made long before by king alfred , called rotulus wintonia . rouge cross . see herald . roundlet . see runlet . rout ( fr. route , i. a company or number ) which signifies an assembly of three persons , or more , going forcibly to commit an unlawful act , though they do it not ; and is the same which the germans yet call rot , meaning a band or great company of men gathered together , and going to execute , or are executing indeed any riot , or unlawful act . see the stat. . edw. . stat . . and rich. . cap. . it is a rout , whether they put their purpose in execution , or no , if they go , ride or move forward after their meeting . brook , tit . riot , . . so as a rout seems to be a special kinde of unlawful . assembly , and a riot , the disorderly fact committed generally by any unlawful ▪ assembly . howbeit , two things are common both to rout , riot , and unlawful assembly : the one , that three persons at the least be gathered together ; the other , that they being together , do disturb the peace , either by words , shew of arms , turbulent gesture , or actual violence , &c. see lamb. eiren. lib. . cap. . see riot and unlawful assembly . royal assent ( regius assensus ) is that assent or approbation , which the king gives to a thing formerly done by others , as to the election of a bishop by dean and chapter ; which given , then he sends a special writ to some person for the taking of fealty . the form whereof you may see in fitz. nat. br. fol. . c. and to a bill passed in both houses of parliament . cromp. jur. fol. . which assent in parliament being once given , the bill is endorsed with these words . le roy veult , i. it pleaseth the king. if he refuse to agree to it , then thus , le roy averisa . i. the king will advise upon it . royalties ( regalia vel regalitates ) are the rights of the king , otherwise called the kings prerogative ; some of which are such as the king may grant to common persons ; some so high , as may not be separated from his crown privative , as the civilians term it ; though some may be cumulative . vide bracton , lib. . cap. . and mathaeum de afflictis , upon the title of the feuds , quae sint regalia ; where are set down twenty five particulars , or several sorts of royalties . see prerogative and regalia . rudge-washed kersey , is that which is made of fleece-wool , washed onely on the sheeps back . anno eliz. cap. . runcinus ( from the ital. runzino ) is used in domesday for a load-horse , or sumpter-horse ; and sometimes a cart-horse , which chaucer calls a rowney . rune ( from the sax. rununge , i. a course or running ) a water-course , so called in the marshes of sommersetshire . hist . of imbanking and draining , fol. . a. runlet alias roundlet , is a certain measure of wine , oyl , &c. containing eighteen gallons and a half . anno rich. . cap. . rural deanes ( decani rurales ) sunt decani temporales ad aliquod ministerium sub episcopo vel archiepiscopo exercendum constituti , qui nec habent institutionem canonicam secundum doctores . hos eosdem esse existimo , qui in ll. edouardi confess . cap. . decani episcoporum appellantur . see dean . each diocess hath in it one or more arch-deaconries , for dispatch of ecclesiastical business , and every arch-deaconry subdivided into rural deanries , fewer or more , according to the bigness and extent thereof . heylins cosmog . fol. . these were anciently called archi-presbyteri , & decani christianitatis . see dean . rusca . when the king himself ( says domesday , tit . cestre ) came in person to chester , every carrucata yielded him two hundred hesta's , and one tun of ale , and one rusca of butter . quaere what the quantity was ? rusca apum , is a hive of bees . s. sabbatum , in domesday , is used for peace , postquam willielmus rex advenit , & sedebat in sabbato , & willielmus mallet fecit suum castellum de eia , &c. tit. sudsex . sac ( saca vel sacha ) is a royalty or priviledge , which a lord of a mannor claims to have in his court , of holding plea in causes of debate , arising among his tenants and vassals ; and of imposing and levying fines and amerciaments touching the same . but rastal , and some others define sac to be the forfeiture it self . in the laws of king edward , set forth by lambert , fol. . it is written , ( sacha ) sacha autem est , si quilibet aliquem nominatim de aliquo calumniatus fuerit , & ille negaverit ; forisfactura probationis vel negationis ( si evenerit ) sua erit . which may be called the amerciament paid by him , who denies that which is proved against him to be true , or affirms that which is not true . fleta says , sake significat acquietantiam de secta ad comitatum & hundredum , lib. . cap. . sac is a saxon word , and signifies causa , lis , certamen , as we still say for christs sake , . pro causa christi . see keilweys rep. fol. . praecipio ut s. benedictus de ramefia ita bene & libere habeat socam & sacam suam , &c. breve hen. . justiciariis de norfolc . v. saka . sacaburth alias sacabere , is he that is robbed , or by theft deprived of his money or goods . britton , cap. . & . with whom agrees bracton , ( lib. . tract . . cap. . num . . ) furtum vero manifestum est , ubi latro deprehensus sit seisitus de aliquo latrocinio , sc . hondhabend & backberend , & insecutus fuerit per aliquem cujus res illa fuerit , qui dicitur sacaburth , &c. it may come from ●ac or ●aca , i. lis , causa , prosecutio , and burh , pignus ; quia res furtiva sit quasi causa pignus , hoc est , furti symbolum . spelman . but sir edward coke says , sacabere or sakebere , is derived of sak and bere , that is , he that did bear the bag . inst . fol. . saccus cum brochia , was a service or tenure of finding a sack , and a broach to the king , for the use of his army . bracton , lib. . cap. . num . . and lib. . tract . . cap. . see brochia . sacerborgh or rather sickerborgh , securus plegius . a sufficient pledge , or cautioner . skene . see sacaburth . sack of wool ( saccus lanae ) contains twenty six stone , and a stone fourteen pounds . anno edw. . stat . . cap. . see sarplar . in scotland it is twenty four stone , and the stone sixteen pound . sacrafield rents , are certain small rents paid by some tenants of the mannor of chuton in com. somerset , to sir charles waldegrave , lord thereof ; but why so called , quaere . sacramento recipiendo , quod vidua regis se non maritabit sine licentia regis , was a writ or commission to one for the taking an oath of the kings widow , that she shall not marry without the kings licence . reg. of writs , fol. . a. sacrobarra . lib. ms. de officio coronatoris — inquirendum est per juratos pro rege super sacramentum suum , quod fideliter presentabunt sine ullo concelamento omnes fortunas ( ●i . fortuito occisos ) abjurationes , appella , murdra , sacrobarra , felonias factas per quos & quot , &c. quaere , if sacrobarra be not the same with sacrilegia . safe conduct ( salvus conductus ) is a security given by the prince , under the broad seal , to a stranger , for his quiet coming in and passing our of the realm : touching which , you may see the statutes anno hen. . cap. . & ejusdem , cap. . & hen. . cap. . and the form of it in reg. of writs , fol. . safe-guard . see salva-guardia . safe-pledge ( salvus plegius ) is a surety given for a mans appearance against a day assigned . bracton , lib. . cap. . num . . where it is also called certus plegius . sagibaro alias sachbaro , the same we now call justiciarius : it signifies as much as vir causarum vel causis & litibus praepositus . ll. inae regis anglo-saxonis , cap . ms. sagitta barbata , a bearded arrow . — reddendo inde annuatim pro omni servitio sex sagittas barbatas ad festum sancti michaelis , &c. carta hugonis de logiis , sine dat. sailing ware ( anno rich. . cap. . ) seems to be canvas , or such kinde of cloath as sails for ships are made of . saka , hoc est , quod prior habet emendas & amerciamenta de transgressionibus hominum suorum in curia sua litigantium , tam liberorum , quam villanorum . reg. priorat . de cokestord . see sax. salary ( salarium ) is a recompence or consideration made to a man for his pains or industry , bestowed on another mans business . the word is used anno edw. . cap. . salet , is a head-peece ( anno & phil. & mar. ) from the fr. salut , i. salus . mentioned also rich. . cap. . viz. sallet or scul of iron , &c. otherwise called a moriam or pot. salarium ( lat. ) custom paid for salt. camden . salina , a salt-pit or vate , a house or place where salt is made . — in herbagiis & piscariis , in salinis & fabricis , in minariis ferreis , &c. carta edw. . num . salique law ( lex salica ) de terra salica nulla portio haereditatis mulieri veniat , sed ad virilem sexum tota terrae hereditas perveniat , &c. was an ancient law made by pharamund , king of the franks . part of which , appears to have been borrowed by our henry the first , in compiling his laws , as cap. . — qui hoc fecerit , secundum legem salicam moriatur , &c. salmon pipe ( anno hen. . cap. . ) is an engin to catch salmons , or such like fish . salmon sewse , seems to be the young fry of salmon , quasi salmon issue . anno rich. . stat . . cap. . saltatorium , a deer-leap . clamat habere liberum parcum suum apud halton cum duobus saltatoriis in eodem . pl. apud cestriam edw. . saltus , highwood . see boscus . salva guardia , is a protection given by the king to a stranger , fearing the violence of some of his subjects , for seeking his right by course of law ; the form whereof see in reg. of writs , fol. . salvage money , is a recompence allowed by the civil law , in lieu of all damages sustained by that ship that rescues or saves another , which was set upon by pyrates or enemies . salute ( salus ) was a coin made by our king henry the fifth in france , after his conquests there , whereon the arms of france and england were quarterly stamped . bakers chron. fol. . sanctuary ( sanctuarium ) is a place priviledged by the prince for the safe-guard of offenders lives , being founded on the law of mercy , and upon the great reverence , honor , and devotion , which the prince bears to the place whereunto he grants such priviledge . see stamf. pl. cor. lib. . cap. . p. bonifacius . jussit aras & ecclesias esse asyla reis , says platina . among all other nations , our ancient kings of england seem to have attributed most to these sanctuaries , permitting them to shelter such as had committed both felonies and treasons : so that within forty days they acknowledged their fault , and submitted themselves to banishment . during which time , if any layman expelled them , he was excommunicated ; if any clerk , he was made irregular : but after forty days , no man might relieve them . see new book of entries , verbo , sanctuary , and fleta , lib. . cap. . how by degrees they have been taken away . see the statutes hen. . cap. . and ejusdem , cap. . ejusdem , cap. . and ejusdem , cap. . — edw. . ca. & ejusdem , ca. . & . and ejusdem , cap. . see abjuration . saint johns of beverley in yorkshire , had an eminent sanctuary belonging to it , which the saxons called fridstol , q. sedes pacis . so had st. martins le grand in london , hen. . cap. . and rippon had the like , for which see frodmortel . sand-gavel , is a payment due to the lord of the mannor of rodely in com. gloc. for liberty granted to the tenants , to dig sand for their uses . taylors hist . of gavelkind , fol. . sarplar of wool ( sarplera lanae ) ( otherwise called a pocket ) is half a sack ; a sack , eighty tod ; a tod , two stone ; and a stone , fourteen pound . see fleta , lib. . cap. . this in scotland is called serpliathe , and contains eighty stone . see skene , verbo , serpliathe , and part inst . fo . . sasse , ( annis & car. . ca. . ) is a kind of wear with floudgates , most commonly in navigable and cut rivers , for the damming and loosing the stream of water , as occasion requires , for the better passing of botes and barges to and fro . this in the west of englad is called a luck , and , in the river lee ( less properly ) a turnpike , and in some places , a sluce . saterdays-stop , is a space of time in which of old it was not lawful to take salmons in scotland , and the north of england ; that is , from evensong on saturday , till sun-rising on munday , ms. sauer default . i. to excuse a defalt ; which is properly when a man , having made defalt in court , comes afterwards and alleadges good cause why he did it , as imprisonment at the same time , or the like , new book of entries on this word . saunkefin , ( from the fr. sang , i. sanguis & fin. finis , ) is a word used by britton , ca. . for the determination , or final end of the lineal race or descent of a kindred . saxonlage , or seaxenlage , ( seaxenlaga ) lex saxonum . see merchenlage . scandalum magnatum , is the special name of a scandal , or wrong done to any high personage of the realm , as prelates , dukes , earles , barons , or other nobles , as also the lord chancellour , treasurer , steward of the house , clerk of the privy-seal , justice of either bench , or other great officers , by false newes , or messages , whereby debates and discords betwixt them and the commons , or any scandal to their persons may arise . anno rich. . ca. . and hath given name to a writ granted , to recover damage thereupon . scavage , schevage , schewage and scheauwing , ( from the sax. sceawian , ostendere ) is a kind of toll or custom , exacted by mayors , sheriffs , &c. of merchant strangers , for wares shewed , or offer'd to sale within their liberties , which is prohibited by the statute hen. . ca. . in a charter of henry the second to the city of canterbury , it is written scewinga ; and ( in man. ang. par. fo . . b. ) sceawing . the city of london does still retain the custom , to a good yearly profit . of which custom the half endell appertaineth to the sherifs , and the other balfen del unto the hostys , in whose houses the marchants ben lodged . and it is to wet , that scavage is the shew ; bycause that marchantys shewen unto the sherifs marchaundyses , of the which custums ought to be taken , ore that ony thing thereof be sold , &c. out of an old printed book of the customes of london . scavenger , ( from the belgic scavan , i. to scrape , or shave away , ) two in every parish of london and its suburbs are yearly chosen into this office , who hire men , ( called rakers ) and carts to cleanse the streets , and carry away the dirt and filth thereof , mentioned car. . ca. . the germans call him a drecksimon , from one simon , a noted scavenger of marpurg . scire facias , is a writ judicial , most commonly to call a man to shew cause to the court , whence it issues , why execution of a judgment passed should not go out . this writ is not granted before a year and a day be passed after the judgment given . old nat. br. fo . . see anno edw. . stat. . ca. . and eliz. ca . and see other diversities of this writ in reg. of writs , and new book of entries . scite , ( anno hen. . ca. . ) see site . skarkalla , or scarkella . — it was especially given in charge by the justices in eyre , that all juries should inquire de hiis qui piscantur cum kiddellis & skarkallis . cokes part inst . fo . . but , he does not declare what skarkalla is . scot , ( sax. sceat , i. a part or portion ) is ( according to rastal ) a certain custom , or common tallage , made to the use of the sheriff , or his bailiffs . scot ( sayes camden out of matth. westm . ) illud dicitur , quod ex diversis rebus in unum acervum aggregatur . anno hen. . ca. . — bearing neither scot , lot nor other charges , &c. anno hen. . ca. . in records it is sometimes written scoth . scot and lot , ( anno hen . ca. . ) signifies a custumory contribution laid upon all subjects , according to their ability . hoveden , ( in principio hen. . ) writes it anlote & anscote . in the lawes of william the conqueror set forth by lambert , you have these words , ( ca. . ) et omnis francigena , qui tempore edwardi propinqui nostri fuit in anglia , particeps consuetudinum anglorum , quod dicunt anhlote & anscote per solvantur secundum legem anglorum . again — rex omne injustum scottum interdixit . hoveden , in anno . scot from the sax. sceat , ut supra ; lot , sax. llot , i. sors . willielmus rex anglorum herberto norwicensi episcopo & omnibus baronibus suis de norfolc & suffolc salutem . sciatis me dedisse sanctae trinitati norwicensi ecclesiae , rogatu rogeri bigoti , terram michaelis de utmonasterio & terram de tanerham , quae ad eandem terram pertinet , quietam semper & liberam ab omnibus scotis & geldis , & omnibus aliis consuetudinibus . t. eudonc dapifero apud westm . &c. scotal , or scotale , ( scotalla & scotalium ) is a word used in the charter of the forest , ca. . nullus forestarius vel bedellus faciat scotallas , vel garbas colligat , vel aliquam collectam faciat , &c. manwood , par. . pa. . defines it thus . a scotal , is where any officer of the forest keeps an alehouse within the forest , by color of his office , causing men to come to his house , and there to spend their money , for fear of displeasure . it is compounded of scot and ale , which by transposition of the words is otherwise called an aleshot , and by the welshmen cymmorth . memorandum , quod praedicti tenentes , ( de south-malling ) debent de consuetudine inter eos facere scotalium de xvi denariis & ob . ita quod de singulis sex denariis detur denar . & ob . ad potandum cum bedello domini archiepiscopi super praedictum feodum . ex vetere consuetudinario manerii de southmalling in archivis archiep. cantuar. scrudland , ( sax. ) terra cujus proventus vestibus emendis assignati sunt . land allotted for buying apparel or cloathing . ita eadsius quidem presbyter in charta sua ecclesiae cantuar. data . dedit etiam terram illam apud orpedingtunam in vita sua , pro anima sua , deo in ecclesia christi servientibus in scrudland , i. fundum vestiarium . sax. dict. scutage , ( scutagium . sax. scildpenig ) hen. . for his voyage to the holy-land , had a tenth granted by the clergy , and scutage , three marks of every knights-fee by the laity . baker in hen. . this was also granted to henry the second , richard the first , and king john. scutagio habendo , was a writ that lay for the king , or other lord , against the tenant that held by knights-service , to serve by himself , or a sufficient man in his place , in war against scots or french , or else to pay , &c. fitz. nat. br. fo . . scutum armorum , a sheild or coat of armes . noverint universi per presentes me johannam nuper uxorem will. lee de knightley , dominam & rectam haeredem de knightley dedisse — ricardo peshale filio humfridi peshale scutum armorum meorum . habend . & tenend . ac portand . & utend . ubicunque voluerit sibi & haeredibus suis imperpetuum . ita quod nec ego nec aliquis alius nomine meo aliquod jus vel clameum seu calumpniam in praedicto scuto habere potuerimus , sed per presentes sumus exclusi inperpetuum . in cujus — dat. apud knightley — ( anno hen. . scyre-gemot , ( sax. scyregemot ) was a court held twice every year ( as the sheriffs turn is at this day ) by the bishop of the diocess , and the ealdorman , ( in shires that had ealdormen ) and by the bishops and sheriffs , in such as were committed to sheriffs that were immediate to the king ; wherein both the ecclesiastical and temporal laws were given in charge to the country . seldens titles of honor , fo . . see consistory . seal , ( sigillum ) is well known . the first sealed charter we find extant in england is that of king edward the confessor upon his foundation of westminster abby . dugdales warwickshire , fo . . b. yet we read in the ms. history of offa , king of the mercians — rex offa literas regii sigilli sui munimine consignatas eidem nuncio commisit deferendas . and that seals were in use in the saxons time , see taylors history of gavelkind , fo , . see wang . anno . domini etiam atque generosi , relictis imaginibus equitum in sigillis , posuerunt arma sua in parvis scutis . chron. joh. rossi , in bibl. cotton . sealer , ( sigillator ) is an officer in the chancery ; who is appointed by the lord chancellor or keeper of the great seal of england , to seal the writs and instruments there made in his presence . seam . ( sax. ) see seme . sean fish , ( anno jac. ses . . ca. . ) seems to be that sort of fish , which is taken with a great long net , call'd a sean . searcher . see alneger . sea-rover , ( anno car. . ca. . ) see privateir . second deliverance ( secunda deliberatione ) is a writ that lies ( after a return of cattle replevied , adjudged to him that distrained them , by reason of a default in the party that replevied ) for the replevying the same cattle again , upon security , put in for the redelivery of them , in case the distress be justified . new book of entries , verbo , replevin in second deliverance , fol. . vide dyer , fol. . num . , . secta ad curiam , is a writ that iies against him , who refuseth to perform his sute , either to the county or court baron . fitz. nat. br. fol. . secta facienda per illam quae habet aeniciam partem , is a writ to compel the heir , that hath the elders part of the coheirs , to perform service for all the coparceners . reg. of writs , fol . a. secta molendini , is a writ lying against him , that used to grind at the mill of b. and after goes to another mill with his corn. reg. of writs , fol. . fitz. nat. br. fol. . but it seems by him , that this writ lies especially for the lord against his frank-tenant , who held of him by making sute to his mill. see the new book of entries on this word . secta ad molendinum , and assises of nusance , are now much turned into trespasses and actions upon the case . secta ad justitiam faciendam ( bracton , lib. . cap. . num . . ) is a service which a man is bound by his fee to perform . secta shirarum . per sectam shirarum clamat esse quiet . de secta in com. cestriae & flint coram justic . domini principis in communi aula placitorum . plac. in itin. apud cestriam . hen. . secta unica tantum facienda pro pluribus haereditatibus , is a writ that lies for that heir , who is distrained by the lord to more sutes than one , in respect of the land of divers heirs descended to him . reg. of writs , fol. . . sectis non faciendis , is a writ that lies for a woman ; who , for her dower , ought not to perform sute of court. reg. of writs , fol. . secunda super oneratione pasturae , is a writ that lies where admeasurement of pasture hath been made , and he , that first surcharged the common , does it again , notwithstanding the measurement . reg. of writs , fol. . old nat. br. fol. . vide edw. . cap. . secundary ( secundarius ) a second officer , who is next to the cheif officer : as the secundary of the fine office. secundary of the compter , who is next to the sheriff of london in each of the two compters . secundary of the office of the privy seal . anno edw. . cap. . secundaries of the pipe , two . secundary to the remembrancers , which are two officers in the exchequer . camden , pag. . securitatem inveniendi , quod se non divertat ad partes exteras sine licentia regis , is a writ that lies for the king , against any of his subjects , to stay them from going out of his kingdom . the ground whereof is , that every man is bound to serve and defend the commonwealth , as the king shall think meet . fitz. nat. br fol. . securitate pacis , is a writ that lies for one ( who is threatned death , or danger ) against him that so threatens , and is taken out of the chancery , directed to the sheriff , whereof the form and farther use , you may see in reg. of writs , fol. . b. and fitz. nat. br. fol. . se defendendo , is a plea for him , who is charged with the death of another , saying , he was forced to what he did in his own defence ; the other , so assaulting him , that if he had not done as he did , he must have been in danger of his own life : which danger ought to be so great , as that it appears to have been otherwise inevitable . stamf. pl. cor. lib. . cap. . and although he justifie it to be done in his own defence , yet is he driven to procure his pardon of course from the lord chancelor , and forfeits , notwithstanding , his goods to the king. seignior ( dominus , fr. seigneur ) signifies generally as much as lord ; but particularly it is used for the lord of the fee , or of a mannor , as dominus or senior , among the feudists , is he who grants a fee or benefit out of the land to another ; and the reason is , because ( as hotoman says ) having granted the use and profit of the land to another , yet the property ( i. dominium directum ) he still retains in himself . seignior in gross . see lord in gross . seignory ( dominium , fr. seigneurie , i. ditio , dominatus , &c. ) signifies a mannor or lordship . seignorie de sokemans . kitchin , fol. . seignorie in gross , seems to be the title of him who is not lord by means of any mannor , but immediately in his own person : as tenure in capite , whereby one held of the king , as of his crown , was seignorie in gross . idem , fol. . seignourage ( anno hen. . stat . . cap. . ) seems to be a regality or prerogative of the king , whereby he challengeth allowance of gold and silver , brought in the mass to his exchange , to be coyned . seisin ( seisina , fr. scisine ) possession ; and primier seisin is the first possession . seisin is twofold , in fact , and in law perkins , dower , & . seisin in fact , is , when an actual possession is taken : seisin in law , is , when something is done , which the law accounts a seisin , as an inrolment . seisin in law , is as much as a right to lands and tenements , though the owner be by wrong d●●●eised of them . perkins , tenant pur le curtesie , , . coke , lib. . fol. . a. calls it seisin in law , or seisin actual . seisina habenda , quia rex habuit annum , diem , & vastum , is a writ that lies for delivery of seisin to the lord , of his lands or tenements , who was formerly convict of felony , after the king , in right of his prerogative , hath had the year , day , and waste . reg. of writs , fol. . a. selda . ( from the sax. selde , a seat , stool , or settle ) — assisa mensurarum anno rich. . apud hoveden . — prohibemus ne quis mercator praetendat seldae suae rubros pannos vel nigros , vel scuta vel aliqua alia per quae visus emptorum saepe decipiuntur , ad bonum pannum eligendum . in majoribus chronicis ubi locus hic vertitur ; selda window exponitur , says spelman . but by what follows , it seems clearly to signifie a shop , shed , standing , or stall — sciant praesentes & futuri , quod ego thomas pencombe de bromyard dedi — thomae forsenet vicario ecclesiae de bromyard unam seldam meam jacentem in bromyard predict . apud le cornechepynge , &c. dat. die lunae proxime post festum sancti egidii abbatis , anno hen. . — et medietatem unius seldae , vvcat . le unicorne in london . mon. angl. par . fol. . a. sir edward coke ( on littl. fol. . b. ) takes , or rather mistakes selda for a salt-pit . selion of land ( selio terrae ) fr. seillon , i. terra elata inter duos sulcos , in latin porca , in english a stiche , or ridge of land , and in some places onely called a land ; and is of no certain quantity , but sometimes half an acre , more or less . therefore crompton in his juris . fol. . says , that a selion of land cannot be in demand , because it is a thing incertain . it seems to come originally from the saxon rul or ryl , i. aratrum , whence also the fr. seillonner , i. arare . — charta vetus achronica maketh six selions and a half , to be but one acre . sciant praesentis & futuri quod ego margeria filia willielmi de ryleia dedi , &c. emmae filiae meae pro homagio & servitio suo unam acram terrae in campo de camurth , scil . illas sex seliones & dimid . cum forera & sepe & fossato , quae jacent in aldewic juxta terram , &c. see hade . seme ( summa , summagium ) a horse-load : a seme of corn is eight bushels . fratres praedicator . ( heref. ) pro sumagiis vocat . semes de focali percipiend . quotidie de bosco de heywood pro termino annorum . — hen. . par . . m. . see sumage . — habebunt etiam duas summas frumenti , pro pastellis , cum voluerint , faciendas . mon. angl. par . fol. . a. — et sint quieti de summagiis & murdro & tennigges & wapentake & auxiliis vice-comitum . ibid. fol. . a. — de quatuor summis salis , continentibus quadraginta bullones pro dimidia salina sua . ibid. fol. . b. sendal ( anno rich. . cap. . ) seems to be fine linnen ; bat sandal is a kinde of physical wood brought out of the indies . senege . — there goeth out yearly in prorege and senege s. d. history of s. pauls church , fol. . quaere , if it be not the money paid for synodals , as proxege for proxies or procurations . seneshal ( senescallus , is derived of sein , a house or place , and schalc , an officer or governor . coke on littl. fol. . a. a steward : as the high seneshal or steward of england . pl. cor. fol. . high seneshal or steward , and south seneshal or under steward , kitchin , fol. . is understood of a steward , and under steward of courts . seneshal de l'hostel de roy , steward of the kings houshold . cromp. jurisd . fol. . in purificatione beatae mariae , fuit filius regis anglorum parisiis & servivit regi francorum ad mensam , ut senescallus franciae . rob. de monte. in anno . pag. . senescallo & marshallo quod non teneant placita de libero tenemento , &c. is a writ directed to the steward or marshal of england , inhibiting them to take cognizance of an action in their court , that concerns either freehold , debt , or covenant . reg. of writs , fol. . a. . b. seneucia , widow-hood . si vidua dotata post mortem viri sui se maritaverit vel filium vel filiam in seneucia peperit , dotem suam amittet & forisfiet in quocunque loco infra com. kant . tenen . in gavelkind . plac. trin. ed. . separation ( separatio ) of man and wife . see mulier . septuagesima ( westm . . cap. . ) is always the fourth sunday before quadragesima , or the first sunday in lent , from whence it takes its numeral denomination ; as quinquagesima is the next before quadragesima , then sexagesima , and then septuagesima ; which are days appropriated by the church to acts of penance and mortification , and are a certain gradation or preparation to the devotion of lent , then approaching . see quinquagesima . sequatur sub suo periculo , is a writ that lies where a summons ad warrantizandum is awarded , and the sheriff returns , that he hath nothing whereby he may be summoned ; then goes out an alias and pluries , and if he come not at the pluries , this writ shall issue forth . old nat. br. fol. . coke on littl. fol. ● b. sequela curiae , suit of court. — et quod sint libori a sequela curiae . mon. angl. par . fol. . a. sequestration ( sequestratio ) is a separating a thing in controversie from the possession of both those that contend for it . and it is twofold voluntary or necessary : voluntary is , that which is done by the consent of each party ; necessary is that which the judge , of his authority doth , whether the parties will or not . it is also used for the act of the ordinary , disposing the goods and chattels of one deceased , whose estate no man will meddle with . dyer , fol. . num . . and fol. . num . . as also for the gathering the fruits of a benefice void , to the use of the next incumbent . anno hen. . cap. . fortescu , cap. . and in divers other cases . sequestro habendo , is a writ judicial for the dissolving a sequestration of the fruits of a benefice made by the bishop , at the kings commandment , thereby to compel the parson to appear at the sute of another : for the parson , upon his appearance , may have this writ , for the release of the sequestration . reg. of writs judicial , fol. . a. serjeant ( serviens vel serians ) is diversly used and applied to sundry offices and callings . first , a sergeant at law ( or of the coyf ) otherwise called serjeant conutor , is the highest degree taken in that profession , as a doctor in the civil law : and to these , as men best learned , and best experienced , one court is severed , to plead in by themselves , which is that of the common pleas , where the common law of england is most strictly observed ; and where they are not so limited exclusively to others , but they may likewise plead and be heard in other courts , where the judges , ( who cannot be judges until they have taken the degree of serjeant at law ) do stile them brother , and hear them with great respect , next unto the kings attorney , and sollicitor general . these are made by the kings mandat , directed to them , commanding them upon a great penalty , to take upon them that degree , by a day certain therein assigned . dyer , fol. . num . . and of these , one is the kings serjeant , being commonly chosen out of the rest , in respect of his great learning , to plead for the king in all his causes , especially in those of treason . ( pl. cor. lib. . cap. . ) of which , there may be more , if the king so please . in other kingdoms he is called advocatus regius . with what solemnity these serjeants are created , read fortescu , cap. . crokes third part , fol. . and instit . fol. . these were also anciently called servientes narratores . — et praedictus thomas le mareschal dicit , quod ipse est communis serviens narrator coram justic . & alibi ubi melius ad hoc conduci poterit , & quod ipse in placito praefatae assisae coram praefatis justiciariis stetit cum praedicto johanne , & de concilio suo fuit , &c. trin. edw. . coram rege , oxon . — md. quod termino trin. anno hen. . tho. willoughby , & johannes baldwin , serjeants de roy , fueront faits chivaliers , & que nul tiels serjeants devant . fuer . unques fait chivaliers . ex ms. vocat . spelmans reports . the next is a serjeant at arms , or of the mace ( serviens ad arma ) whose office is to attend the person of the king. anno hen. . cap. . to arrest traitors or persons of condition , and to attend the lord high steward of england , sitting in judgment upon any traitor , and such like ( pl. cor. lib. . cap. . ) of these by the statute rich. . cap. . there may not be above thirty in the realm . two of them , by the kings allowance , do attend on the two houses of parliament , whose office in the house of commons , is the keeping of the doors , and ( as of late it hath been used ) the execution of such commands , especially touching the apprehension of any offender , as that house shall enjoyn him . crompt . jur. fol. . another of them attends on the lord chancellor or lord keeper , in the chancery . and one on the lord treasurer of england . one upon the lord major of london , upon extraordinary solemnities ; one attendeth upon the lord president of wales , and another upon the lord president of the north. another sort of serjeants , are cheif officers , who execute several functions or offices within the kings houshold ; of which , you may read many in the statute of hen. . cap. . there is also a more inferior kinde of serjeants of the mace , whereof there is a troop in the city of london , and other corporate towns , that attend the major , or other head officer , cheifly for matter of justice . kitchin , fol. . and these are called servientes ad clavam . new book of entries , verbo , scire facias , in mainpernors , cap. . fol. . serjeants of peace . — et etiam habere ibidem ( i. dunham ) sex servientes qui vocantur serjeants of peace , qui servient cur. manerii praedicti , & facient attach . & executiones omnium placitorum & querelarum in dicta curia placitorum , &c. pl. de quo warranto apud cestriam , ed. . serjeanty ( serjantia ) is a service that cannot be due to any lord from his tenant , but to the king onely ; and it is divided into grand serjeanty and petit. the first is where one holds land of the king by service , which he ought to do in his own person , as to bear the kings banner , spear , &c. petit serjeanty is where a man holds land of the king , to yield him yearly some small thing towards his wars , as a sword , dagger , bow , &c. of which read bracton , lib. . cap. . & . and britton , c. . num . . & . inter feodalia servitia summum est & illustrissimum , quod nec patronum aliquem agnoscit praeter regem , says the learned spelman . lib. ms. feodal . de baldwino de pettour , qui tenuit terras in hemingston in com. suff. per serjantiam , pro qua debuit facere die natali domini singulis annis coram domino rege angliae , saltum , sufflum , & pettum , al. unum saltum , unum sufflatum , & unum bombulum . and sir rich. rockesley held lands at seaton by serjeanty to be vantrarius regis , i. the kings fore-footman when he went into qascoign , donec per usus fuit pari solutarum precii d. until he had worn out a pair of shooes of the price of d. which service , being admitted to be performed , when the king went to gascoign to make war , is knights service . coke on littl. fol. . b. see the statute of car. . cap. . whereby all tenures of any honors , mannors , lands , &c. are turned into free and common soccage ; but the honorary services of grand serjeanty are thereby continued . servage ( anno rich. . cap. . ) see service . service ( servitium ) is that which the tenant by reason of his fee oweth to his lord ; which is sometimes called servage , as anno rich. . cap. . our ancient law-books , make divers divisions of service , as into military and base ; personal and real ; intrinsick and extrinsick , &c. but since the stat. car. . cap. . whereby all tenures are turned into free and common soccage , much of that learning is set aside . see coke , lib. . bevils case , fol. . a. see soccage . thomas leigh esquire ( at the coronation of king charles the second ) brought up to the kings table a mess of pottage called dillogrout , which service had been adjudged to him by the court of claims , in right of the mannor of addington in com. surrey ; whereupon the lord high chamberlain presented him to the king , who accepted the service , and afterwards knighted him . servientibus , are certain writs touching servants , and their masters , violating the statutes made against their abuses , which see in reg. of writs , fol. . & . service secular ( anno edw. . cap. . ) worldly service , contrary to spiritual or ecclesiastical . servitium ferrandi , of shooing a horse . see palfrey . servitiis acquietandis , is a writ judicial that lies for one distrained for services to a. who ows and performs to b. for the acquittal of such services . reg. of writs judic . fol. . a. & . b. servitors of bills , are such servants or messengers of the marshal belonging to the kings bench , as were heretofore sent abroad with bills or writs to summon men to that court , being now called tipstaffs . anno h. . cap. . session of parliament . the passing any bill or bills , by giving the royal assent thereto , or the giving any judgment in parliament , doth not make a session , but the session does continue till that session be prorogued or dissolved . see part inst . fol. . sessions ( sessiones ) signifies a sitting of justices in court upon their commission ; as the sessions of oyer and terminer . pl. cor. fol. . quarter sessions , otherwise called general sessions , or open sessions . anno eliz. cap. . opposite whereunto are especial , otherwise called privy sessions , which are procured upon some special occasion , for the more speedy dispatch of justice . cromp. just of peace , fol. . petit sessions or statute sessions , are kept by the high constable of every hundred for the placing of servants . anno eliz. cap. . see statute sessions . sesseur ( anno edw. . cap. . ) seems to signifie the assessing or rating of wages . severance , is the singling or severing two or more , that joyn or are joyned in one writ . as , if two joyn in a writ de libertate probanda , and the one afterwards be non-sute , here severance is permitted , so as , notwithstanding the non-sute of the one , the other may severally proceed . fitz. nat. br. fol. . and brook , tit . severance & summons , fol. . there is also severance of the tenants in an assise , when one , two , or more disseisors appear upon the writ , and not the other . new book of entries , fol. . and severance in attaints , eodem , fol. . and severance in debt , fol. . where two executors are named plaintiffs , and the one refuseth to prosecute . severance of corn , is the cutting and carrying it from off the ground , and sometimes the setting out the tythe from the rest of the corn is called severance . see crokes rep. part , fol. . several tayl ( tallium separatum ) is that whereby land is given and entailed severally to two : for example , land is given to two men and their wives , and to the heirs of their bodies begotten , the donees have joynt-estate for their two lives , yet they have several inheritance ; because the issue of the one shall have his moyety , and the issue of the other , the other moyety . several tenancy ( tenura separalis ) is a plea or exception to a writ , that is laid against two , as joynt , who are indeed several . brook hoc tit . fol. . sewer ( severa & sewera ) est fossa in locis palustribus ducta ad aquas eliciendas , &c. a passage or gutter to carry water into the sea , or a river . anno hen. . cap. . and car. . cap. . and commissioners of sewers are such as , by authority under the great seal , see drains and ditches well kept and maintained in the marish and fen countreys , for the better conveyance of the water into the sea , and preserving the grass upon the land , for food of cattle . see the statutes car. . cap. . and ejusdem , cap. . touching the draining the great level in the fens , called bedford level , and the authority of the governor , bailiff , &c. as commissioners of sewers . sextary ( sextarius ) was an ancient measure , containing about our pint and a half , ( according to the latin dictionary ) the city ( now town ) of leicester paid ( inter al. ) to the king yearly twenty five measures called sextaries of honey ; as we read in domesday , and in claus . edw. . m. . we finde mention of tresdecem sextarios vini . — et unum sextrium salis apud wainflet . mon. angl. par . fol. . b. decem mittas brasii , quatuor sextarios avenae ad praebendam . idem , par . fol. . b. where it seems to have been used for a much greater quantity . a sextary of ale , contained xvi lagenas . see tolsester . sexagesima . see septuagesima . shack , is a custom in norfolk to have common for hogs , from the end of harvest , till seed time , in all mens grounds without control . cokes rep. fol. . corbets case . and in that county , to go at shack , is as much as , to go at large . shares . see flotzon . sharping corn , is a customary gift of corn , which , at every christmas , the farmers in some parts of england give to their smith , for sharping their plough irons , harrow times , and such like , and exceeds not half a bushel , for a plough-land . sherbet ( anno car. . cap. . ) is a compound drink lately introduced in england from turky and persia , and is made of juyce of lemmons , sugar , and other ingredients : another sort of it is made of violets , honey , juyce of raisins , &c. sherbert in the persian tongue , signifies pleasant liquor . shermans craft , is a craft or occupation at norwich , the artificers whereof do shear as well worsteads , stamins , and fustians , as all other woollen cloth ; and mentioned anno hen. . cap. . shewing , is to be quit of attachments in any court , and before whomsoever in plaints shewed , and not avowed . terms ley. see scavage . shilling ( sax. scilling ) among our english saxons , consisted but of five pence . si in capillis sit vulnus longitudinis unius unciae v. denariis , i. uno solido componatur . ll. h. . c. . ship-money , was an imposition charged upon the ports , towns , cities , boroughs , and counties of this realm , in the time of king charles the first , by writs commonly called ship-writs , under the great seal of england in the years . and . for the providing and furnishing certain ships for the kings service , &c. which ( by stat. car. . cap. . ) was declared to be contrary to the laws and statutes of this realm , the petition of right , liberty of the subjects , &c. shipper ( anno jac. sess . . cap. . ) is a dutch word , signifying the master of a ship. we corrupt it into skipper , and use it for any common seaman . shire ( comitatus ) from the saxon scir or scyre , i. to part or divide ) is well known to be a part or portion of this land , called also a county . who first divided this land into shires , see in camd. britan , pag. . of which , there are in england forty , and in wales twelve . in privilegiorum chartis ubi conceditur quietum esse a shiris , intelligendum est de immunitate , qua quis eximitur a secta vel clientela curiis vicecomitum ( quas etiam shiras ●●cant ) prestanda vel perficienda . spel. the assises of the shire , or the assembly of the people of a county , was called dcir-gemot by the saxons . shirif or shiref ( vicecomes ) quasi , shire-reve . sax. scire-gerefa , i. pogi vel comitatus praepositus , the cheif offic●● , under the king , of a shire or county . camden ( in his britan. pag. . ) thus describes his office , singulis vero annis , nobilis aliquis ex incolis praeficitur , quem vicecomitem , quasi vicarium comitis , & nostra lingua shyref , i. comitatus praepositum , vocamus : qui etiam comitatus vel provinciae quastor recte dici potest . ejus enim est publicas pecunias provinciae suae conquirere , mulctas irrogatas vel pignoribus ablatis colligere , & aerario inferre , judicibus praesto adesse & eorum mandata exequi , duodecim viros cogere , qui in causis de facto cognoscunt , & ad judices referunt ( judices enim apud nos juris solum , non facti sunt judices ) condemnatos ad supplicium ducere , & in minoribus litibus cognoscere , in majoribus autem jus dicunt justiciarii , quos itinerantes ad assisas vocant , qui quot annis hos comitatus bis adeunt , ut de causis cognoscant , & carceratis sententiam ferant . henricus secundus hos itinerantes instituit , vel potius restituit . ille ( ut inquit matth. paris ) consilio filii sui & episcoporum constituit justiciarios , per sex partes regni , in qualibet parte tres , qui jurarent , quod cuilibet jus suum conservarent illaesum . of the antiquity and authority of this officer , read cokes rep. lib. . mittons case , and spelmans glossarium , verbo , vicecomes . the shirif was anciently chosen in the county court by the suffrages of the people , as knights of parliament yet are , but is now nominated by the the king. see fortescu , cap. . fol. . vicecomes , dicitur , quod vicem comitis supplet in placitis illis quibus comes ex suae dignitatis ratione participat cum rege . niger lib. scaccarii . the form of his oath , see in the reg. of writs , fol. . b. shirif-tooth — pèr shiriftooth johannes stanley ar. clamat habere de quolibet tenente infra feodum de aldford unum denarium & quadrantem per annum , exceptis dominicis terris propriis & terrae in feodo & manerio praedicto maner . & hundred . de macclesfeld . rot. plac. in itin. apud cestriam hen. . shiréebe weke of winchester and of esser , ( the compass or extent of a sheriffs authority ) anno rich. . cap. . & . sherifwikes . anno eliz. cap. . shirifalty ( anno car. . cap. . ) the time of ones being sheriff . shire clerk , seems to be the under-sheriff . anno hen. . cap. . sometimes taken for a clerk in the county court , deputy to the under-sheriff . see cokes rep. lib. . mittons case . shire-mote . see shire and turn . shop ( shopa ) — omnibus — johannes horsenet de hereford bochour salutem . noveritis me praefatum johannem dedisse , &c. rogero smyth de bromeyard imam shopam cum pertin . suis in bromeyard praedict . scituat . in le market-place ibidem , &c. dat. febr. edw. . see selda . shorling and morling , seem to be words to distinguish fells of sheep : shorling signifying the fells after the fleeces are shorn off the sheeps back ; and morling alias mortling , the fells flean off after they die , or are killed . anno edw. . cap. . and ejusdem , cap. . howbeit in some parts of england they understand by a shorling , a sheep whose fleece is shorn off , and by a mortling , a sheep that dies . see morling . sich ( sichetum & sikettus ) a little current of water , which is dry in the summer . — inter duos sikettos , quorum unus cadit inter — mon. angl. par . fol. . b. also a water-furrow or gutter , accordingly in worcestershire i know a moorish ground called blacksich . sicut alias , is a writ sent out in the second place , where the first was not executed . coke , lib. . fol. . b. it is so called of these words expressed in it . as carolus dei gratia , &c. vicecomiti heref. salutem . praecipimus tibi ( sicut alias praecipimus ) quod non omittas propter aliquam libertatem in balliva tua , quin eam ingrediaris & capias a. b. de c. in comitatu tuo gen . &c. lambert in this tract of processes in the end of his eiren. sidemen alias questmen , are those that are yearly chosen , according to the custom of every parish , to assist the church-wardens in the enquiry , and presenting such offenders to the ordinary , as are punishable in the court christian . sigillum — notum sit omnibus christianis , quod ego johannes de gresley non habui potestatem sigilli mei per unum annum integrum ultimo praeteritum , jam notifico , in bona memoria & sana mente , quod scripta sigillo meo contradico & denego in omnibus a tempore praedicto usque in diem restaurationis sigilli praedicti . in cujus rei testimonium sigillum decanatus de repingdon apposui . testibus domino thoma stafford milite , johanne arden , &c. dat. apud drakelew , rich . see seal and tabellion . significabit , is a writ which issues out of the chancery , upon a certificat given by the ordinary , of a man that stands obstinately excommunicate by the space of forty days , for the laying him up in prison without bail or mainprise , until he submit himself to the authority of the church . and it is so called , because significavit , is an emphatical word in the writ . there is also another writ of this name in the register of writs , fol. . a. directed to the justices of the bench , willing them to stay any sute depending between such and such , by reason of an excommunication alleaged against the plaintiff ; because the sentence of the ordinary that did excommunicate him , is appealed from , and the appeal yet depends undecided . see fitz. nat. br. de excommunicato capiendo , fol. . & . a. where you may finde writs of this name in other cases . signet ( signet ) is one of the kings seals , wherewith his private letters are sealed , and is always in the custody of the kings secretaries : and there are four clerks of the signet office attending them . inst . fol. . silk-thrower or throwster ( anno car. . cap. . ) is a trade , or mystery , that winds , twists , and spins , or throws silk , thereby fitting it for use , who are incorporated by the said act : wherein there is also mention of silk-winders and doublers , which are members of the same trade . anno car. . cap. . silva cedua . see sylva caedua . simnel , ( siminellus vel symnellus ) panis purior , sic dictus , quod a simila , hoc est , puriori farinae parte efficitur . panis similagineus , simnel-bread . it is mentioned in assisa panis , ( and is still in use , especially in lent. ) bread made into a simnel shall weigh two shillings less then wastel bread . stat. h. . see cocket . simony , ( simonia ) venditio rei sacrae , a simone mago dicta . it was agreed by all the justices trin. . jac. that if the patron present any person to a benefice with cure , for mony , that such presentation , &c. is void , though the presentee were not privy to it ; and the statute gives the presentation to the king. cokes rep. fo . . simony may be by compact betwixt strangers , without the privity of the incumbent or patron . croke part , fo . . bawderokes case . hob. rep. fo . . noys rep. fo . . pascals case , & inst . fo . . simplex — carta simplex , a deed-poll , or single deed — ricardus mayhen de sutton per cartam simplicem huic indenturae indentatam , dedit , &c. dat. edw. . sine assensu capituli , is a writ that lies where a dean , bishop , prebendary , abbot , prior or master of hospital , aliens the land held in the right of his house , without the consent of the chapter , covent or fraternity ; in which case his successor shall have this writ , fitz. nat. br. fo . . sine die , i. without day . when judgment is given against the plaintiff , he is said to be in misericordia pro falso clamore suo , & eat inde sine die , i. he is dismissed the court. si non omnes , is a writ of association , whereby , if all in commission cannot meet at the day assign'd , it is permitted that two or more of them may finish the business . see association , and fitz. nat. br. fo . . & , &c. si recognoscant , is a writ that lies for a creditor against his debtor , who has , before the sheriff in the county-court , acknowledged himself to owe his creditor such a summ received of him in pecuniis numeratis . the form of which writ is this — rex vicecom . salutem praecip . tibi quod si a. recognoscat se debere r. solidos sine ulteriori dilatione , tunc ipsum distringas ad praedictum debitum eidem r. sine dilatione reddendum , teste , &c. old. nat. br. fo . . site , or scite , ( situs ) the setting , or standing of any place , the seat , or scituation of a capital house or messuage ; a territory , or quarter of a country . as we often find the site of the late dissolved monastery of , i. the place where it stood . — the word is found in the stat. hen. . ca. . & car. . ca. . and is there written scite . — dedi situm loci , in quo domus sua sita est . mon. angl. par. fo . . b. sithcundman , ( sax. ) sithcundus , custos paganus interpretatur . lamb. expl . verb. pa. . such a gentleman as had the office to lead the men of a town or parish . e classe nobilium erat , says somner . scyvinage , ( anno hen. . ca. . ) signifies the precincts of caleis . smalt ( anno ja. ca. . and pat. feb. . ja. ital. smalto ) is that of which painters make blew colour . smoke silver . tenemenium newstede cum pertinen . &c. in villa de staplehirst in cam. cant. tenetur de manerio de east-greenwich per fidelitatem tantum in libero soccagio , per pat. dat . febr. edw. . and by the payment for smoke-silver to the sheriff yearly the summ of six pence . notes for lord wootons office , . there is smoke-silver and smoke-penny paid to the ministers of divers parishes , conceived to be paid in lieu of tithewood , — or , it may , as in many places at this day , be a continued payment of the romescot , or peter-pence . see chimney-money . soc , ( sax. ) signifies power , authority , or liberty to minister justice , and execute lawes : also the shire , circuit , or territory , wherein such power is exercised by him that is endued with such a priviledge or liberty . whence our law latin word soca for a seignory or lordship , enfranchised by the king , with the liberty of holding or keeping a court of his sockmen , or socagers , i. his tenants , whose tenure is hence call'd socage . this kind of liberty is in divers places of england at this day , and commonly known by the name of soke , or soken . skene says sok , ( an old word , used in charters and feoffments , which are in sundry old books , containing the municipal laws of this realm ) is called seda de hominibus suis in curia secundum consuetudinem regni , &c. see bracton , lib. . tract . . ca. . where he makes mention of these liberties , soc , sac , tol , team , infangthef , & utfangthef . ll. hen. . ca. . — sive sacam totaliter habent , sive non . soca , id quod franchesiam dicimus , i. locus privilegiatus , libertas , immunitas , refugium , asylum , sanctuarium , a sax. socn & socne , haec ipsa significantibus . socage , or soccage , ( socagium ) from the fr. soc , i. vomer , a plowshare , or coulter ) is a tenure of lands , by or for certain inferior or husbandry services to be perform'd to the lord of the fee. see institutes of common-law . . bracton , ( lib. . ca. . nu . . ) describes it thus , dici poterit soccagium a socco , & inde tenentes qui tenent in soccagio , sockmanni dici poterunt , eo quod deputati sunt , ut videtur , tantummodo ad culturam , & quorum custodia & maritagia ad propinquiores parentes jure sanguinis pertinebunt , &c. skene sayes , soccage is a tenure of lawes , whereby a man is infeoffed freely without wardship or marriage , paying to his lord some small rent , &c. which is called free-socage , there was also base soccage , otherwise called villenage — bracton adds — soccagium liberum est , ubi fit servitium in donariis dominis capitalibus , & nihil inde omnino datur ad scutum & servitium regis . this free soccage is also called common soccage , anno h. ca. . other divisions there are in our law , writers of soccage in capite , &c. but , by the statute car. . ca. . all tenures from and after february , , shall be adjudged and taken for ever to be turned into free and common socage . socmans , alias sokemans , ( socmanni ) are such tenants as hold their lands by soccage tenure ; but , the tenants in ancient demean seem most properly to be called socmans . fitz. nat. br. fo . . b. britton . ca. . n. . — progenitores simonis bokeley omnia sua in houcton per liberum sokagium tunc tenebant , & quieti erant de sectis curiarum , consuetudinibus , exactionibus & demandis . lib. — s. albani tit. houcton , ca. . the word sokeman is found in the statute of wards and relief , edw. . socna , ( sax. socne ) a priviledge , immunity , liberty or franchise . — volo , ut ipsi sint eorum sacae & socnae ; theolonei etiam & teami ( privilegiorum scilicet & jurium sic appellatorum ) digni intra tempus & extra tempus , &c. char. canuti regis , in hist . eccl. cath. s. pauli , fo . . see soc. socome , signifies a custom of grinding at the lords mill ; and there is bond-socome , where the tenants are bound to it , and love-socome , where they do it freely out of love to their lord. soke , ( anno hen. . ca. . & . ) significat libertatem curiae tenentium quam socam appellamus . fleta , lib. . ca. . sect. soke . soka , hoc ect quod prior habet sectam de homagiis suis ad curiam suam , secundum communem consuetudinem regni angliae . m. s. de libertat . priorat . de cokesford . per soke will. stanley in manerio suo de knottesford clamat cognitionem placitorum debiti , transgressionis , conventionis & detentionis infra summ . sol . de aliis compactibus quibuscunque sine brevi . pl. in itin. apud cestriam , hen. . soke , i. aver fraunche court de ses homes . ms. see soc. soken , ( soca . ) see soc and hamsoken . sokereeve seems to be the lords rent-gatherer in the soke or soken . fleta , lib. . ca. . solda . — pateat — quod nos johannes romayne senior de leominstr . & johannes romayne junior de eadem remisimus — johanni meole vicario ecclesiae de wygemore ricardo bocerell constabular . castri de wygemore , & fouke sprengehose totum jus nostrum & clamium — in una solda cum pertinenciis in leominstr . scituata in alto vico inter soldam quondam ricardi spicer & soldam quae fuit philippi collinge , &c. dat. . octobre , ric. . it seems to be the same with solila , a shop , or shed . solet & debet . see debet & solet . soletenant , ( solus tenens ) is he or she that holds onely in his or her own right , without any other joyned . for example , if a man and his wife hold land for their lives , the remainder to their son ; here the man dying , the lord shall not have heriot , because he dies not sole-tenant , kitchin , fo . . solicitor , ( solicitator , ) signifies a man employ'd to follow and take care of sutes dedepending in courts of law or equity ; formerly allowed only to nobility , whose maenial servants they were ; but now too commonly used by others to the great increase of champerty , and maintenance and damage of the people . solidata terrae . see farding deal of land. solidata signifies also the pay or stipend of a souldier . et qui terram non habent & arma habere possunt , illuc veniant ad capiendum solidatas nostras . breve regis johannis vicecomitatus angliae . anno . solinus terrae , in domesday book contains two plowlands , and sometimes less then a half ; for there it is said septem solini terrae sunt , carucat . soller , or solar , ( solarium ) a chamber , or upper room . dedi — unam shoppam cum solario super aedificato . ex vet . carta . solutione feodi militis parliamenti , and solutione feodi burgen . parliamenti , are writs whereby knights of the shire , and burgesses may recover their allowance , if it be deny●d , anno hen. . ca. . sommons . see summons . sontage , was a tax of forty shillings laid upon every knights fee. scow , pa. . in some places the word is used for course cloth , as bagging for hops , or the like . systema agriculturae . sorcery , ( sortilegium ) witchcraft , or divination by lots : which is felony , by jac. ca. . sortilegus , quia utitur sortibus in cantationibus daemonis . inst . fo . . sorcery & devinal sont members de heresy . mirror , ca. . sect. . excepted out of the act of general pardon . car. . ca. . sothale , in bracton , ( lib. . tract . . ca. . ) it is written sothail , but both conceived to be mistaken for scotale , which vide . henrici autem tercii aetate hoc sublatum esse constat ex bracton . south-uicont , — ( sub-vicecomes ) the under-sheriff , cromp. jur. fo . . sown , is a corruption from the fr. souvenu , i. remembred ; for the stat. hen. . ca. . in the original french , hath des estreats nient souvenu , which , by turning the two single u v , into w , was first made sowenu , afterwards sown ; which properly signifies remembred ; and such estreats and casualties as are not to be remembred , run not in demand , that is , are not leviable . it is used as a word of art in the exchequer , where , estreats that sown not , are such as the sheriff by his industry cannot get ; and estreats that sown , are such as he may gather . part , inst . fo . speaker of the parliament , is an officer in that high court , who is , as it were the common-mouth of the rest , of which there are two , one termed , the lord speaker of the house of peers , who is most commonly the lord chancelor of england , or lord keeper of the great seal ; the other , ( being a member of the house of commons ) is called the speaker of the house of commons . the duties of which two you have particularly described in a book , entituled , the order and usage of keeping the parliament . see parliament . special matter in evidence . see general iss●● , and brooke , tit . general issue , and special evidence . specialitas , a specialty , is usually taken for a bond , bill , or such like instrument . — presentatum fuit per juratores — quod quidam johannes de pratis habuit quandam uxorem amicabilem de cujus specialitate , willielmus , filius henrici molendinarii , & similiter quidam alii malefactores fuerunt ; ita quod predicti malefactores venerunt ad lectum ipsius johannis , ubi jacebat , & ipsum traxerunt ab eadem , & ipsum abinde duxerunt & tenuerunt , dum praedictus willielmus concubuit cum ea . pl. coram rege apud ebor. mich. ed. . rot. . here it seems to be used for special , or particular acquaintance . spinster . — pollard miles & judic . habuit filios gladiis cinctos in tumulo suo , & totidem filias fusis depictas . spelman in his aspilogia , sayes — antiquis temporibus ipsae reginae fusis usae sunt , unde hodie omnes faeminae spinsters dictae sunt . it is the addition usually given to all unmarried women , from the viscounts daughter downwards . yet sir edward coke sayes generosa , is a good addition for a gentlewoman , and , if they be named spinster in any original writ , appeal , or inditement , they may abate , and quash the same . inst . fo . . spiritualities of a bishop , ( spiritualia episcopi ) are those profits which he receives , as he is a bishop , and not as he is a baron of the parliament . ( stamf. pl. cor. fo . . ) such are the duties of his visitation , his benefit growing from ordaining and instituting priests , prestation money , that is , subsidium charitativum , which , upon reasonable cause , he may require of his clergy , the benefit of his jurisdiction , &c. joachimus stephanus de jurisdict . lib. . ca. . num . . spittle-house , ( mentioned in the act for subsidies , car. . ca. . ) is a corruption from hospital , and signifies the same thing ; or , it may be taken from the teutonic spital , an hospital , or almes-house . spoliation , ( spoliatio ) is a writ that lies for an incumbent against another incumbent , in case where the right of patronage comes not into debate . as if a parson be made a bishop , and has dispensation to keep his rectory , and afterwards the patron presents another to the church , who is instituted and inducted ; the bishop shall have against this incumbent a writ of spoliation in court christian . fitz. nat. br. fo . see benevolence . spullers of yarn , ( anno mariae . parl. . ca. . ) are tryers of yarn , to see if it be well spun , and fit for the loom . sqalley ( anno eliz. ca. . ) see rewey . it is a note of faltines in the making of cloth. stablestand , ( stabilis statio , vel potius , stans in stabulo ) is one of the four evidences ; or presumptions , whereby a man is convinced to intend the stealing the kings dear in the forest . manwood , par. . ca. . num . . the other three are dogdraw , backbear , bloudy-hand . this stablestand is , when a man is found at his standing in the forest , with a cross , or long-bow bent , ready to shoot at any dear , or else standing close by a tree with greyhounds in a lease , ready to slip . stagnarium . ( rectius stannarium ) a tin-mine . rex , &c. roberto de curtenay : concessimus dominae reginae matri nostrae cuneum & stagnarium devon. ad se sustinendum . paten . anno hen. . stagnes , ( stagna ) ponds , pools , or standing waters . — mentioned , anno eliz. ca. . stalboat , a kind of fishers-boat . anno eliz. ca. . stalkers , a kind of fishing-nets ; mentioned anno rich. . stat. . ca. . & ejusdem , ca. . stallage , ( stallagium ) from the sax. stal . i. stabulum , statio ) the liberty or right of pitching or erecting stalls in fair or market , or the money paid for the same . quod si aliquis portaverit res suas ad forum & posuerit super stallas , faciet redemptionem pro eis qualibet die lunae , vel semel pro toto anno . ex registro priorat . de cokesford . see scavage . in scotland it is called stallange , and among the romans it was termed siliquaticum . standard . see estandard . standel , is a young store-oake-tree , which may in time make timber ; twelve such are to be left standing in every acre of wood , at the felling thereof . anno hen. . ca. . and eliz ca . stannaries , ( stannaria , from the lat. stannum , i. tin , ) are the mynes and works where this mettal is got and purify'd , as in cornwal and elsewere . of which read cam. brit. pa. . the liberties of the stannarymen , granted by edward the first , before they were abridg'd by the statute of edward the third . see in plowden , casu mines , so . . and cokes rep. fo . . and the liberties of the stannary-courts , see anno car. . ca. . staple , ( stapulum ) signifies this or that town or city , whether the merchants of england were by act of parliament to carry their wool , cloth , lead , tyn , and such like staple commodities of this land , for the utterance of them by the great . the word comes from the fr. fstape , i. forum vinarium , a market , or staple for wines , which is the principal commodity of france . and , in an old french book , thus — a calais y avoite estape de la laine , &c i. the staple for wool. you may read of many places appointed for this staple in our statutes , according as the king thought fit to alter them , from ed. . ca. . to ed. . ca. what officers the staples had belonging to them , you may see anno ed. . stat. . ca. . the staple commodities of this realm are , wool , leather , woolfel● , lead , tin , butter , cheese , cloth , &c. as appeas by the stat. ric. . ca. . though some allow onely the five first . see inst . fo . . star-chamber , ( camera stellata , otherwise called chamber des estoiels ) was a chamber at westminster , so called , because at first all the roof thereof was decked with images of gilded stars . anno hen. . ca. . it is written the sterred chamber . henry the seventh and henry the eighth ordained by two several statutes , ( viz. hen. . ca. . and hen. . ca. . ) that the chancelor , assisted by others there named , should have power to hear complaints against retainors , embraceors , misdemeanors of officers , and such other offences , which , through the power and countenance of such as did commit them , did lift up the head above other faults , and , for which , inferior judges were not so meet to give correction , and the common-law had not sufficiently provided . and , because that place was before dedicated to the like service , it was still used accordingly . see camden , pa. , . but , by the stat. car. . ca. . ) the court commonly called the star-chamber , and all jurisdiction , power and authority thereto belonging , &c. are , from and after august , , clearly and absolutely dissolved , and determined . starling . see sterling . statute , ( statutum ) has divers significations . first , it signifies an act of parliament made by the king and his three estates of the realm ; in which sence it is either general or special . coke , lib. . hollands case . secondly , statute is a short writing , called a statute-merchant , or statute-staple , which are in the nature of bonds , anno hen. . ca. . ) and are called statutes , because made according to the form expresly provided in certain statutes , which direct both before what persons , and in what manner they ought to be made . west , par . . symbol . lib. . sect. . defines a statute-merchant to be a bond acknowledged before one of the clerks of the statutes-merchant , and mayor of the staple , or chief warden of the city of london , or two merchants of the said city for that purpose assigned , or before the mayor , chief warden , or mayor of other cities or good towns , or other sufficient men for that purpose appointed ; sealed with the seal of the debtor , and of the king , which is of two peices , the greater is kept by the said mayor , &c. and the less by the said clerk. the form of which bond fleta , ( lib. . ca. . sect. . ) thus delivers — noverint universi me n. de tali comitatu teneri m. in centum marcis , solvendis eidem m. ad festum pent. anno regni regis , &c. et nisi fecero , concedo quod currant super me & haeredes meos districtio & pena provisa in statuto domini regis edito apud westm . datum london . tali die . — the fee for the seal is , for statutes acknowledged in fairs , for every pound a half penny , and out of fairs a farthing . the execution upon statute-merchant is first to take the body of the debtor , if he be lay , and can be found , if not , his lands and goods ; and is founded on the statute ed. . stat. . see new book of entries , verbo , statute-merchant . statute-staple is either properly so called , or improperly ; properly , is a bond of record acknowledged before the mayor of the staple , in the presence of one of the two constables of the same staple ; the fee for the seal is , of every pound , ( if the same exceed not l. ) a half-penny , and if it exceed l. a farthing ; by vertue of which statute the creditor may forthwith have execution of the body , lands and goods of the debtor , and this is founded on the statute ed. . ca. . a statute-staple improper , is a bond of record , founded upon the statute hen. . ca. . of the nature of a proper statute-staple , as to the force and execution of it , and acknowledged before one of the chief justices , and in their absence before the mayor of the staple and recorder of london . the forms of all which bonds or statutes see in westm . part . symbol . lib. . sect. — , &c. statutes , is also used in our vulgar discourse , for the petite sessions , which are yearly kept for the disposing of servants in service , by the statute eliz. ca. . see recognizance . statute-sessions , otherwise called petty-sessions , are a meeting in every hundred of all the shires in england , where , by custom , they have been used , whereunto the constables do repair , and others , both housholders and servants , for the debating of differences between masters and their servants , the rating of servants wages , and the bestowing such people in service , as being fit to serve , either refuse to seek , or cannot get masters , anno eliz. ca. . statuto stapulae , is a writ , that lies to take his body to prison , and to seise upon his lands and goods who hath forfeited the bond , called statute-staple . reg. of writs , fo . . statutum de laboraiis , is a writ judicial , for the apprehending such labourers , as refuse to work according to the statute . reg. judic . fo . . b. statutum mercatorium , is a writ for the imprisoning him , that has forfeited a bond called statute-merchant , untill the debt be satisfied . reg. of writs , fo . . b. and of these there is one against lay-persons , another against ecclesiastical . stemnifreoch , — nec non libertate multurae suae in molendixo ipsius roberti , &c. quod sint stemnefreoch & cholfreoch . mon. angl. par. fo . . b. quaere . stennerie , is used for the same with stanneries in the statute hen. . ca. . see stanneries . sterbrech , alias strebrech , is the breaking , obstruction , or diminution of a way , or the turning it out of its right course ; from the old english word stre , i. via , and brech , fractio , violatio ; hence to go astrey , or as we now write it stray , i. to go out of the way . strebrech sol . omendet . leg. hen. . ca. . strebrech est , si quis viam frangat , concludendo , vel avertendo , vel fodiendo . ms. sterling , ( sterlingum , and in old records sterilensis ) was the ancient epitheton for money ( properly of silver ) currant in this realm ; stat. of purveyors , ca. . and took name from this , that there was a certain pure coyn , stamped first in england by the easterlings , or merchants of east-germany , by the command of king john. accordingly hoveden writes it esterling : and , in several old deeds i have seen vint livres d'esterlinges . by the stat. ed. . the peny , which is called the sterling , round , and without clipping , weighes graines of wheat , well dryed , and twenty pence make an ounce , and twelve ounces a pound , and eight pound a gallon of wine , and eight gallons a bushel , which is the eighth part of a quarter . — the word sterling is now much disused , in stead of five pound sterling ; we say five pound of currant , or lawful english money . see more of this word in the sax. dict . verbo , steoran . stews , or stues , are those places , which were permitted in england to women of professed incontinency , for the profer of their bodies to all comers ; and is derived from the fr. estuves , ( i. thermae , balneum ) because wantons are wont to prepare themselves for venereous acts , by bathing ; and , that this is not new , homer shews in the eighth book of his odyss . where he reckons hot bathes among the effeminate sort of pleasures . see the statute of hen. . ca. . — henry the eighth about the year , forbad them for ever . steward , ( senescallus ) is compounded of the sax. steda , i. room , place or stead , and ward , as much as to say , a man appointed in my place or stead ; and hath many applications , yet alwayes signifies an officer of chief account within his jurisdiction . the greatest of these is the lord high-steward of england , which was anciently the inheritance of the earls of leicester , till forfeited to henry the third by simon de mountfort ; but , the power of this officer being very great , of late he has not usually been appointed for any long time , but onely for the dispatch of some special business , at the arraignment of some noble-man in case of treason , or such like , which once ended , his commission expires . of the high-steward of englands court you may read inst . fo . . then is there the steward of the kings houshold , anno hen. . ca. . whose name was changed to that of great-master , anno ejusdem , ca. . but , this statute was repealed by mar. parl. ca. . and the office of lord steward of the kings houshold revived , where you may read much of his office ; as also in fitz. nat. br. fo . . b. of this officers ancient power read fleta , lib. . ca. . this wordis of so great diversity , that there is in many corporations , and in all houses of honour , throughout the realm , an officer of this name and authority . what a steward of a mannor or houshold is , or ought to be , fleta fully describes , lib. . ca. , & . though senescallus be now the usual latin for steward , yet i have seen a copy of court-roll of mardyn in herefordshire , ( edw. . ) concluding thus , — et huic copiae sigillum locumtenentis est appensum . stilyard , ( guild-halda teutonicorum ) anno hen. . ca. . — hen. . ca. . and ejusdem , ca. . ) was a place in london , where the fraternity of the easterling-merchants , otherwise called the merchants of hawnse and almain , ( anno edw. . ca. . ) had their abode . see geld. it was so called of a broad place or court , wherein steel was much sold , upon which place that house was founded . see hawnse . stoc and stovel , — praeterea si homines de stanhal dicti abbatis inventi fuerint in bosco praedicti w. cum forisfacto ad stoc & ad stovel , ( al. stovene ) & aliquis quaerens corporaliter in terram per eos seisa fuerit , malefacto pro delicto , qui taliter inventus est , reddet tres solidos — similiter concessum est , quod si aliquis inventus fuerit cum branchiis quercuum , vel cum aliis minutis boscis , cum forisfacto illo ad stoc & ad stovel , malefactor ille reddet sex denarios . e quadam carta conventionum inter will. de bray & abbat . & conv. de osiney . see zuche . stockikind . see gavelkind . stotall . — also moreover we have granted , in amendment of the city , that they bin all quit of bryztchel , of childwit , zeresgen , and of stotall ; so that no sheriff of london , neither none other bayly , make stotal in the francheis aforesaid , &c. this i find in an old printed book , which delivers it ( inter al. ) as the charter of hen. . to the city of london ; but , the word is without doubt mistaken for scotale . stone of wool , ( petra lanae , anno hen. . ca. . ) ought to weigh fourteen pounds , yet in some places by custom it is more , and in some places it is but twelve pounds and a half . le charre de plumbo constat ex formellis & quaelibet formella continet petras exceptis duabus libris , & quaelibet petra constat ex libris . compositio de ponderibus . a stone of wax is eight pound . and , at london , the stone of beef is no more . see weights and sarpler . stovene . see zuche . stowage , ( from the sax. stow . locus , ) is the room or place where goods are laid , or the money that is paid for such place . straits or streits ( anno hen. . cap. . and rich. . cap. . ) a sort of narrow , course cloth , or kersey , anoiently so called . stranded ( from the sax. strand , i. a shore or bank of the sea , or great river ) is when a ship is by tempest , or ill steerage run on ground , and so perishes . stat. . car. . cap. . see strond . stray . i. si aliquod animal casu erraverit , & infra libertatem prioris advenerit , & a ballivis ejus captus fuerit , ducetur ad pynfoldam , & ibi servabitur per unum annum & unum diem ; si nemo illud clamaverit infra illud tempus , erit priori : si autem venerit quis & legitime probaverit illud esse suum , dabit pro quolibet pede unum denarium , & solvet expensas quae factae fucrant , & rehabebit bestiam suam . ex regi str o priorat . de cokesford , see estray . stranger ( fr. estrangi●r ) signifies generally a man born out of the realm , or unknown ; but in law it hath a special signification for him that is not privy , or party to an act : as a stranger to a judgment , ( old nat. br. fol. . ) is he to whom a judgment does not belong , and herein it is directly contrary to party or privy . see privy . stream-works ( anno hen. . cap. ) is a kinde of work in the stanneries . of these mines or tinworks ( says camden in his britan. fol. . ) there are two kindes ; the one called lodeworks , the other stream-works : this lies in lower grounds , when by trenching they follow the veins of tin , and turn aside now and then , the streams of water coming in their way : the other is in higher places , when upon the hills they dig very deep pits , which they call shafts , and undermine . stréetgavel or stretgavel , i. quilibet tenens in manerio de cholinton dabit s. pro itu & reditu . ms. de temp . e. . every tenant of that mannor ( in com. sussex ) paid yearly s. ( for his going out , and returning into it ) to the lord of the mannor , by the name of stretgavel . mich. edw. . coram rege . antiquity of pourveyance , fol. . strip ( strepitus ) destruction , mutilation ; from the fr. estropier , i. mutilars , detruncare radicitus — strepitum & vastum facere , i. to make strip and waste , or strop and waste . see estreapment . streteward . per streteward johannes stanley ar. clamat quod scrvientes pacis & ministri sui in fra feodum de aldford capere debent de qualibet fuga catallorum iv d. rot. pla. in itinere apud cestriam h. . see marketzeld . strond ( sax ) a shore or bank of the sea or great river . ricardus rex — notum facimus vobis nos concessisse — deo & sancto albano ecclesiae suae sancti oswyni de tynemuth , cellae s. albani & monachis ibidem deo servientibus omnes terras suas & omnes homines suos , cum sacha , soca , over strond & streme , on wode & felde , toll , them , & grithburg , hamsocne , murdrum & forestal , danegeld , infangenethef , & utfangenethef , flemnensfrenieth , blodwit , wrec , &c. dat. nov. anno regni nostri apud cant. on stronde et streame , on wde et feld . — voces anglicae veteres , & in antiquioris avi chartis crebro repertae ; privilegium sapiunt , seu potius privilegii latitudinem sive amplitudinem , & sic latine iegantur , in litore , in fluvio , in sylva & campo . gloss . in . x scriptores . strumpet ( meretrix ) was heretofore used for an addition . — jur. praesent , &c. quod johannes le maynwarynge de whatcroft de cum. cestriae esq laurentius le waren de davenham esq &c. hugo de sondebache yoman , hopkin , norman de com. cestr . husband-knave , willielmus le birchewode de clyve-knave , cum plurimis aliis , & agnes cawes de medio wico de comitatu cestr . strumpet . — tali die domum ranulphi madock vi & armis — fregerunt , &c. pla. apud cestriam hen. . m. . in dorso . stud — libere vendendi & emendi , tam in cestria , quam in comitatu & wycis , ubi non fuit lexulla , omnia fine toll & stud , praeter sal & equos , &c. mon. angl. par. fol. . b. it is probable this is the same , which is elswhere written stuth . stuth , — per stuth clamat esse quiet . de exactione pecuniae a singulis villis — per vicecom . comitat. cestriae . pl. in itin. ibid. hen. . submarshal ( submarescallus ) is an officer in the marshalsea , who is deputy to the cheif marshal of the kings-house , commonly called the knight marshal , and hath the custody of the prisoners there . cromp. jurisd . fol. . he is otherwise called under marshal . subornation ( subornatio ) a secret or underhand preparing , instructing , or bringing in a false witness ; or corrupting or alluring unto leudness . hence subornation of perjury ( mentioned in the act of general pardon . car. . cap. . ) is the preparing , bringing in or alluring unto perjury . subornation of witnesses . hen. . cap. . — part. instit . fol. . subpaena , is a writ whereby common persons are called into chancery , in such case onely , where the common law fails , and hath not provided : so as the party , who , in equity hath wrong , can have no ordinary remedy by the rules and course of the common law ; many examples whereof you may read in west , par. . symbol . tit . proceedings in chancery , sect . . but peers of the realm in such cases are called by the lord chancellors letter , giving notice of the sute intended against them , and requiring them to appear . there is also subpaena ad testificandum , which lies for the calling in of witnesses to testifie in any cause , as well in chancery as other courts . and the name of both proceeds from words in the writ , which charge the party called to appear , at the day and place assigned , sub paena centum librarum , &c. cromp. jurisd . fol. . anno hen. . cap. . subsidium cathedraticum . see cathedratic . subsidy ( subsidium ) signifies an aid , tax , or tribute , granted by parliament to the king , for the urgent occasions of the kingdom , to be levied of every subject of ability , most commonly after the rate of s. in the pound for land , and s , d , for goods . i do not finde , that the saxon kings had any subsidies collected after the manner of those this day ; but they had many customs whereby they levied money of the people , or personal service toward the building and repairing of cities , castles , bridges , military expeditions , &c. which they called burgbote , brigbote , herefare , heregeld , &c. but , when the danes oppressed the land , king egelredus in the year yielded to pay them for redemption of peace l. which after was increased to l , then to l , and at last to a yearly tribute of l. this was called danegeld , i. danica solutio . and , for levying it ; every hide of land , that is , every plough-land was cessed d. yearly , the church-lands excepted ; and thereupon it was after called hydagium , which name remained afterward upon all taxes and subsidies imposed upon lands ; for , sometimes it was imposed upon cattel , and was then called hornegeld . the normans called both these sometimes , according to the latin and greek word taxes , sometimes , according to their own language tallagium , of talier , to cut or divide ; and sometimes , according to the word usual beyond the seas , auxilia & subsidia . the conqueror had these kind of taxes or tallages , and made a law for the manner of levying them , as appears in emendationibus ejus , pa. . sect. volumus & hoc firmiter , &c. after the conquest these subsidies seem to have been granted in other manner then now they are ; as , every ninth lamb , every ninth fleece , and every ninth sheaf , anno edw. . stat. . ca. . of which you may see great variety in rastals abr. tit. taxes , tenthes , fifteenths , subsidies , &c. and inst . fo . . & . whence you may conclude there is no certain rate , but as the parliament shall think fit . subsidy is , in our statutes , sometimes confounded with custome . anno hen. . ca. . see benevolence , and car. . ca. . sucking . per sucking , hoc est fore quiet de illis amerciamentis quando le burlimen , id est , supervisores del ringyord , id est clausur . quae vocat . le chiminfildes vel common medows , & praemonit . fuerint ad imparcand . & faciend . clausuras illas simul cum vicinis suis , ille qui non venit ad talem praemonitionem amerciatus erit ad pretium unius vomeris , anglice a suck , praetii quatuor denar . & hoc quotiescunque praemonit . non venerit . pla. in itin. apud cestriam , hen. . surety of peace , ( securitas pacis , so called , because the party that was in fear is thereby secured ) is an acknowledging a bond to the prince , taken by a competent judge of record , for the keeping of the peace . this peace a justice of peace may command , either as a minister , when he is willed so to do by a higher authority , or as a judge , when he does it of his own power , derived from his commission . of both these see lamb. eiren. lib. . ca. . pa. . see peace and supplicavit . it differs from surety of good abearing in this , that whereas the peace is not broken without an affray , battery , or such like ; surety de bono gestu may be broken by the number of a mans company , his weapons or harness . suffragan , ( suffragnus ) is a titular bishop , ordam'd to assist the bishop of the diocess in his spiritual function . sir edw. coke , ( inst . fo . . ) calls him a bishops vice-gerent . — dicuntur ( episcopi ) qui archiepiscopo suffragari & assistere tenentur , sayes spelman . et suffraganei dicuntur , quia eorum suffragiis causae ecclesiasticae judicantur . it was enacted , ( anno hen. . ca. . ) that it should be lawful for every diocesan at his pleasure to elect two honest and discreet spiritual persons within his diocess , and to present them to the king , that he might give the one of them such title , stile , name and dignity of such of the sees in the said statute specify'd , as he should think convenient , &c. and that every such person shall be called bishop suffragan of the same see , &c. cam. in his britan. tit. kent . speaking of the arch-bishop of canterburies suffragans , sayes , when the arch-bishop is busied in weightier affairs , they manage for him matters that pertain to orders onely , and not to the episcopal jurisdiction . suite , or sute , ( secta ) fr. suite , i. consecutio , sequela ) signifies a following another , but in divers sences ; the first is a sute in law , and is divided into sute real and personal , which is all one with action real and personal . . sute of court , or sute-service , is an attendance which a tenant owes to the court of his lord , ( anno hen. . ca. . ) . sute-covenant , is , when your ancestor has covenanted with mine to su● to his court. . sute-custome , when i and my ancestors have been seised of your and your ancestors sute time out of minde . . sutereal , or regal , when men come to the sheriffs turn , or l●et , . . sute signifies the following one in chase , as fresh-sute , westm . . ca. . lastly , it signifies a petition made to the king , or any great person . suite of the kings peace , ( secta pacis regis ) is the pursuing a man for breach of the kings peace , by treasons , insurrections , or trespasses , anno rich. . stat. . ca. . and ejusdem , ca. . & hen. . ca. . suit-silver . see sute-silver . suling . see swoling . summage . see sumage , & seme . sumage , or summage , ( sumagium & summagium , a horscload ) toll for carriage on horseback . cromp. jur. fo . . forestarius capiat — pro uno equo qui portat summagium , per dimidium anni obolum . — charta de foresta , cap. ante-penult , & char. edw. . num . . summoneas , is a writ judicial of great diversity , according to the divers cases wherein it is used ; which see in the table of the reg. judicial . summoner , ( summonitor ) is a small officer that calls or cites men to any court ; these ought to be boni homines , that is in fleta's judgment , liberi homines , & ideo boni , quia terras tenentes , quod sint coram talibus justiciariis ad certos diem & locum , secundum mandatum justiciariorum vicecomiti directum , parati inde faceri recognitionem , lib. . ca. . summons , ( summonitio ) signifies with us , as much as vocatio in jus , or citatio among the civilians ; and thence is our word sumner , which in french is somoneur , ( i. vocator , monitor . ) summons of the exchequer , anno edw. . ca. . how summons is divided , and what circumstances it has to be observed . see fleta , lib. . ca. , . summons in terra petita , ( kitchin , fo . . ) is that summons which is made upon the land , which the party ( at whose sute the summons is sent forth ) seeks to have . summons ad warrantizandum , ( dyer , fo . nu . . ) summoneas ad warrantizandum , is the process whereby the vouchee is called . see coke on litt. fo . . b. sumptuary laws , are laws made to restrain excess in apparel , and prohibit costly cloaths , of which we have anciently had many in england , but all repealed , anno jac. see inst . fo . . super institution , ( super institutio ) one institution upon another , as where a. is admitted and instituted to a benefice upon one title , and b. is admitted , instituted , &c. by the presentment of another . see hutchins case in crokes rep. par. fo . . superoneratione pasturae , is a writ judicial that lies against him , who is impleaded in the county , for the over-burdening a common with his cattel , in case where he was formerly impleaded for it in the county , and the cause is removed into the kings court at westm . super praerogativa regis , is a writ which lay against the kings widdow , for marrying without his licence . fitz. nat. br. fo . . supersedeas , is a writ , which lies in divers cases , and signifies in general a command to stay or forbear the doing of that which ought not to be done , or , in appearance of law , were to be done , were it not for the cause whereon the writ is granted . for example , a man regularly is to have surety of peace against him , of whom he will swear he is afraid , and the justice , ( if required ) cannot deny it ; yet , if the party be formerly bound to the peace , either in chancery , or elsewhere , this writ lies to stay the justice from doing that , which otherwise he might not refuse . see the table of the reg. of writs , and fitz. nat. br. fo . . for preventing the superseding executions . see the statute & car. . ca. . super statuto edw. . versus servants and labourers , is a writ that lies against him , who keeps my servants departed out of my service against law. fitz. nat. br. fo . . super statuto de york , quo nul serra viteller , &c. is a writ lying against him , that uses victualling , either in gross , or by retail , in a city , or borough-town , during the time he is mayor , &c. fitz. nat. br. fo . . super statuto , edw. . ca. and . is a writ that lay against the kings tenant holding in chief , who alienated the kings land without his licence . fitz. nat. br. fo . . super statuto facto pour seneshal & marshal de roy , &c. is a writ lying against the steward or marshal , for holding plee in his court of freehold , or for trespass , or contracts , not made within the kings houshold . fitz. nat. br. fo . . super statuto de articulis cleri , ca. . is a writ against the sheriff , or other officer , that distrains in the kings high-way , or in the glebeland , anciently given to rectories . fitz. nat. br. fo . . supervisor , ( lat. ) a surveyor , or overseer : it was anciently , and still is a custome among some , especially of the better sort , to make a supervisor of a will ; an office or title ( as it is now carelesly executed ) to little purpose , and of as little use ; however the intendment may be good , viz. that he should supervise the executors , and see the testators will punctually performed . supervisor of high-wayes , ( anno eliz. ca. . ) is otherwise called surveyor . see surveyor . supplicavit , is a writ issuing out of the chancery , for taking the surety of peace against a man ; it is directed to the justices of peace and sheriff of the county , and is grounded upon the statute edw. . ca. . which ordains , that certain persons shall be assigned by the chancellor to take care of the peace . see fitz. nat. brev. fo . . this writ was of old called breve de minis , as lam. in his eiren. notes out of reg. of writs , fo . . sur cui in vita , is a writ that lies for the heir of that woman , whose husband has alienated her land in fee , and she brings not the writ cui in vita , for the recovery of her own land ; in this case her heir may have this writ against the tenant after her decease . fitz. nat. br. fo . . surcharge of the forest , ( superoneratio forestae ) is , when a commoner puts on more beasts in the forest , than he has right unto . manwood , par. . ca. . nu . . and is taken from the writ de secunda superoneratione pasturae in the same sence , when the commoner surchargeth . inst . fo . . surplusage , ( fr. surplus , i. corollarium , additamentum ) signifies a superfluity , or addition more than needs , which sometimes is a cause that a writ abates . brooke , tit . nugation & superfluity , fo . . plowden , casu , dives contra maningham , fo . . b. it is sometime also apply'd to matter of account , and signifies a greater disbursment , than the charge of the accountant amounts unto : satisfaciant in omnibus quod conjunctum fuerit per praedictum computum inter eos de surplusagio recepto de averiis venditis , &c. ordinatio de marisco romeneiensi . pa. . surrejoynder , is a second defence of the plaintiffs action , opposite to the defendants rejoynder . west , part . symbol . tit . supplications . sect. . and therefore hotoman calls it triplicationem , quae est secunda actoris defenfio , contra rei duplicationem appusita . surrebutter , a second rebutter , or a rebutting more then once . see rebutter . surrender ( sursum redditio ) is an instrument in writing , testifying with apt words , that the particular tenant of lands , or tenements for life or years , does sufficiently consent and agree , that he , who hath the next or immediate remainder or reversion thereof , shall also have the present estate of the same in possession , and that he yields and gives up the same unto him : for every surrender ought forthwith to give a possession of the thing surrendred . west , par. . lib. . sect . . where you may see divers presidents . and a surrender may be of letters patent to the king , to the end he may grant the estate to whom he pleaseth . but there may be a surrender without writing ; and therefore there is said to be a surrender in deed , and a surrender in law : the first is that which is really and sensibly performed ; the other is , in intendment of law , by way of consequent , and not actual . perkins , surrender , fol. ● as , if a man have a lease of a farm , and during the term , he accept of a new lease , this act is in law , a surrender of the former . coke rep. fol. . b. there is also a customary surrender of copihold lands , for which see coke on littl. sect . . surrogate ( surrogatus ) one that is substituted or appointed in the room of another , most commonly of a bishop , or the bishops chancellor . sursise ( supersisae ) seems to be an especial name used in the castle of dover , for such penalties and forfeitures , as are laid upon those that pay not their duties or rent for castleward at their days . anno hen. . cap. . bracton hath it in a general signification . lib. . tract . . cap. . num . . and fleta , lib. . cap. . surveyor ( supervisor ) is compounded of two french words , sur , i. super , and veois , i. cernere , intueri ) signifies one that hath the over-seeing , or care of some great persons lands or works . as the surveyor-general of the kings mannors . cromp jurisd . fol. . and , in this signification , it is taken anno hen. . cap. . where there is a court of surveyors erected . surveyor of the kings exchange ( an. hen. . stat . . cap. . ) was an officer , whose name seems in these days to be changed into some other ; or the office it self ( being very ancient , legal , and profitable for the common-wealth ) disused . survivor ( from the fr. survivre , i. superesse ) signifies the longer liver of two joynt-tenants . see brook , tit . joynt-tenants , fol. . or of any two joyned in the right of any thing . suskin . see galli halfpence . suspense or suspension ( suspensio ) is a temporal stop or hanging up , as it were , of a mans right ; as when a seignory , rent , &c. by reason of the unity of possession thereof ; and of the land , out of which they issue , are not in esse for a time , & tunc dormiunt , but may be revived or awaked , and differs from extinguishment , which dies for ever . coke on littl lib. . cap. . sect . . brook , tit . extinguishment and suspension , fol. . suspension , is also sometimes used by us , as it is in the cannon law , pro minori excommunicatione , anno hen. . cap. . suspiral ( from the lat. suspirare , ●i . ducere suspiria ) seems to be a spring of water , passing under the ground toward a conduit or cistern anno hen. . cap. . sute . see suite . sute-silver , is a small rent or sum of money , which , if paid , does excuse the freeholders from their appearance at the court barons within the honor of clun in shropshire . swan-heard . see kings swan-heard . swanimote or swainmote ( swainmotus ) from the sax. swang , i. ( as we now call our rusticks ) a countrey swain , a boclandman , a freeholder , and gemote , i. conventus ; ( the sax. g , being usually turned into i or y ) signifies a court touching matters of the forest , kept by the charter of the forest thrice in the year , before the verderors , as judges . anno hen. . cap. . what things are inquirable in the same you may read in cromp. jurisd . fol. . and is as incident to a forest , as a court of p●e powder to a fair. see lamberts explication of saxon words , verbo , conventus . — nullum swainmotum de caetero teneatur in regno nostro , nisi ter in anno , viz. in principio quindecim dierum ante festum sancti michael . &c. circa festum s. martini , & initio quindecim dierum ante festum sancti johannis baptistae , &c. charta de foresta tam regis johan . quam hen. . cap. . see inst . fol. . swarff-money . the swarff-money is one penny half-penny , it must be paid before the rising of the sun , the party must go thrice about the cross , and say the swarff-money , and then take witness , and lay it in the hole ; and when ye have so done , look well that your witness do not deceive you ; for if it be not paid , ye give a great forfeiture xxx s. and a white bull. this exposition was found in an old ms. containing the rents due to the catesbies in lodbroke , and other places in warwickshire . but conceived to be mistaken for , or to signifie the same with warth-money . see ward-penny . swepage . ( coke on littl. fol. . b. ) is the crop of hay got in a meadow , called also the swepe in some parts of england . swoling or suling of land ( sulinga , solinga , vel swolinga terrae ) , sax. sulung , from sul vel sulh , i. aratrum , as to this day in our western parts , a plough is called a sul , and a plough-staff , a sul-paddle ) is the same with carucata terrae , that is , as much as one plough can till in a year ; a hide of land , others say it is quantitas incerta . — dedit ctiam idem inclitus rex willielmus ( conquestor ) cidem ecclesiae de bello in cantia , regale manerium , quod vocatur wy , cum omnibus appendiciis suis septem swolingarum , id est , hidarum , ex sua dominica corona , cum omnibus libertatibus , & regalibus consuetudinibus , &c. rentale ms. de wy tempore ven. patr. tho. ludlowe abbatis , fol. . — terram trium aratrorum , quam cantiani anglice dicunt thrée swolings . carta pervetusta eccles . cantuar. de qua vide somne●rum in antiquitat . loci , pag. . syb and som ( sax. ) pax & securitas . — eallum cristenum mannum syb & som gemene . id est , — omnibus christianis pax & securitas communis esto . ll. eccles . canuti regis , cap. . sylva caedua ( lat. ) wood under twenty years growth : coppice-wood . see the stat. edw. . cap. . it is otherwise called subbois . inst . fol. . synod ( synodus ) a meeting or assembly of ecclesiastical persons for the cause of religion ; of which , there are four kindes . . a general , occumenical , or universal synod or council , where bishops , &c. of all nations meet . . national synod , where those of one onely nation meet . . a provincial synod , where ecclesiastical persons of one onely province meet . . diocesan synod , where those of but one diocess meet . see convocation : which is the same thing with a synod ; this being a greek , that a latin word . synodal ( synodale ) is a cense or tribute in money paid to the bishop , or arch-deacon by the inferior clergy at easter visitation ; and it is called synodale or synodaticum , quia in synodo frequentius dabatur . the impropriation of derehurt in com. gloc. pays yearly vii s. ix d. pro synodalibus & procurationibus . pat. july , hen. . — et quod sint quieti a synodalibus , & ab omni episcopali consuetudine , excepto denario beati petri. mon. angl. par. fol. . b. see historical discourse of procurations and synodals , pag. . & . these are called otherwise synodies in the statute of hen. . cap. . yet in the statute of hen. . cap. . synodals provincial seem to signifie the canons or constitutions of a provincial synod . and sometimes synodale is used for the synod it self . t. t. every person convict of any other felony ( save murder ) and admitted to the benefit of his clergy , shall be marked with a t. upon the brawn of the left thumb . anno hen. . cap. . tabellion ( tabellio ) a notary publick or serivener , allowed by authority to engross and register private contracts and obligations : his office in some countreys did formerly differ from that of notary , but now they are grown , or made one . quoniam tabellionum usus in regno angliae non habetur , propter quod magis ad sigilla authentica credi est necesse , ut eorum copia facilius habeatur , statuimus ut sigillum habeant non solum archiepiscopi & episcopi , sed eorum officiales . matth. paris , fol. . de anno . tabling of fines , is the making a table for every county where his majesties writ runs , containing the contents of every fine , passed in any one term , as the name of the county , towns , and places , wherein the lands or tenements lie , the name of the demandant and deforceant , and of every mannor named in the fine . this is properly to be done by the chirographer of fines of the common pleas , who every day of the next term , after the ingrossing any such fine , does fix every of the said tables , in some open place of the said court , during its sitting . and the said chirographer is to deliver to the sheriff of every county , his under-sheriff or deputy , fair written in parchment , a perfect content of the table , so made for that shire in the term next before the assizes , or else between the term , and the assizes , to be set up every day of the next assizes in some open place of the court , where the justices sit , to continue there so long as they shall sit , &c. if either the chirographer or sheriff fail herein , he forfeits l. and the chirographers fee for every such tabling is d. anno eliz. cap. . tail ( fr. taille , i. sectura ) signisies two things grounded upon one reason . ( plowden , casu willion . fol. . ) first , it is used for the fee , which is opposite to fee-simple , by reason it is so minced ( as it were ) or pared , that it is not in the owners free power to dispose , but is by the first giver cut or divided from all others , and tied to the issue of the donee . coke , lib. . in proamio . and this limitation or tail is either general or special . tail general , is that whereby lands or tenements are limited to a man , and to the heirs of his body begotten , and it is general , because how many women soever the tenant , holding by this title , shall take to his wives one after another , his issue by them all have a possibility to inherit one after another . tail special , is that whereby lands or tenements are limited to a man and his wife , and the heirs of their two bodies begotten ; because , if the man bury his wife , before issue , and take another , the issue by his second wife cannot inherit the land. also , if land be given to a. and his wife b. and to their son c. for ever ; this is tail special . see fee , and littl. lib. . cap. . and new book of entries , ●erbo tail. tail , in the other signification , is that we vulgarly call a talley : for , une taille de bois is a cloven peece of wood to nick up an account upon : for in the stat. edw. . cap. . it is termed a tail ; and so in brooks abridg. tit . tail d'exchequer , fol. . tailes ( talliae ) are in these days called tallies , explicated before : of these we read in our statutes two sorts , long used in the exchequer . the one tailes of debt ( anno rich. . cap. . ) which are a kinde of acquittance for debt paid to the king. for example , the university of cambridge pays yearly l. for such things as are by their charter granted them in fee-farm , l. at the annunciation , and l. at michaelmas . he that pays these , receives at each day a tail or talley for his discharge ; with both which , or notes of them , he repairs to the clerk of the pipes office , and there in stead of them receives an acquittance in parchment for his full discharge . the other , tails of reward , ( mentioned anno hen. . cap. . and in other statutes ) which seem to be tails or tallies of allowances or recompence made to sheriffs , for such matters , as ( to their charge ) they have performed in their office , or for such moneys as they , by course , have cast upon them in their accounts , but cannot levy , &c. see anno & edw. . cap. . there are also tallies of debt used among subjects . — et si creditor habeat talleam , oportet creditorem probare illam per convicinos suos vel per alios , per quorum fidelitatem balivi & alii praesentes illo tempore in curia noticiam habere possunt , & si creditor petat debitum per vocem suam simplicem , tunc debitor potest esse ad suam legem manifestatam . ms. codex de ll. statutis , &c. burgivillae mountgomer . a temp. hen. . tailage . see tallage . taint ( attinctus , fr. teinct , i. infectus , tinctus ) signifies either a conviction ; or a person convict of felony or treason , &c. see attaint . tales ( a latin word of known signification ) is used for a supply of men , impannelled on a jury or enquest , and not appearing , or at their appearance , challenged by either party , as not indifferent ; in which case , the judge upon motion grants a supply to be made by the sheriff of one or more such there present , equal in reputation to those that were empannelled . whereupon the very act of supplying is called a tales de circumstantibus . but he that hath had one tales , either upon default or challenge may not have another to contain so many as the former : for the first tales must be under the principal pannel , except in a cause of appeal , and so every tales less then other , until the number be made up of such as are without exception : yet you may finde some exceptions to this general rule in stamf. pl. cor. lib. . cap. . these commonly called tales may in some sort , and indeed are called meliores , viz. when the whole jury is challenged , as appears by brook , tit . octo tales & auter tales , fol. . tales , is also the name of a book in the kings bench office ( coke , lib. . fol. . b. ) of such jury-men as were of the tales . tallage ( tallagium ) from the fr. taille ; which originally signifies a peece cut out of the whole , and metaphorically a share of a mans substance paid by way of tribute , toll , or tax . stat. de tallagio non concedendo . tempore edw. . and stows annals , pag. . thence comes tailaigiers in chawoer for tax or toll-gatherers . see subsidy . these tallages were anciently called cuttings , which word is still retained in ireland , in a not much different sense . tallage ( says sir edward coke ) is a general word , and includes all taxes . instit . fol. . talleys . see tailes . talsbide or talwood , ( taliatura ) is fire-wood , cleft and cut into billets of a certain length . anno & hen. . cap. . and an. edw. . cap. . every talshide marked one , being round bodied , shall contain sixtéen inches of assise in compass , &c. anno eliz . cap. . tangier , an ancient city of barbary , lying within the kingdom of fesse , and distant from the streights about thirty miles ; mentioned in the statute of car. cap. . and is now part of the dominion belonging to the crown of england . tanistry , is a law , tenure , or custom in some parts of ireland ; of which thus , sir john davies in his reports , fol. . b. quant ascun person morust seisie des ascuns castles , mannors , terres ou tenements del nature & tenure de tanistry , que donques mesme les castles , &c. doent descender , & de temps dont memory ne court ont use de descender seniori & dignissimo viro sanguinis & cognominis de tiel person issint morant seisie , & que le file ou le files de tiel person issint morant seisie de touts temps avantdit , ne fueront inheritables de tiels terres ou tenements , ou de ascum part de eux . the name seems to be derived a thanis . see sir james wares antiquitates hibernia , pag. . tappa . see bosinnus . tare and tret . the first is the weight of box , straw , cloaths , &c. wherein goods are packed . the other is a consideration allowed in the weight for wast , in emptying and reselling the goods . book of rates . tasels , is a kinde of hard bur used by cloathiers and cloath-workers in the dressing of cloth. anno edw. . cap. . tassum , a mow or heap ; from the fr. tasser , to heap or pile up . commissio facta fuit roberto hadham ad vendend . blada & alia bona diversarum abbatiarum alienigenarum , qui venit & cognovit quod vendidit blada prioris de tickford in garbis in duabus tassis existen . pro l. &c. hill. edw. . coram rege . rot. . tax ( taxa , from the gr. 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 , quod non solum ordinem , sed & modum ratione temperatum significat , atque ob id etiam taxationem & tributum , unde 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 dicuntur qui tributum imponunt ) was such a tribute , as being certainly rated on every town , was wont to be yearly paid , but now not without consent in parliament , as the subsidy is . and it differs from subsidy in this , that it is always certain , according as it is set down in the exchequer book , and levied in general of every town , and not particularly of every man. it is also called a fifteenth , anno edw. . stat . . cap. . and hen. . cap. . it seems , that in ancient time , this tax was imposed by the king at his pleasure , but edward the first bound himself and his successors from that time forward , not to levy it , but by consent of the realm . anno edw. . cap. . see gild , subsidy , and fifteenth . taxatio bladorum , an imposition on corn. taxers , two officers yearly chosen in cambridge , to see the true gage of all weights and measures : the name took beginning from taxing or rating the rents of houses , which was anciently the duty of their office. tea ( anno car. . cap. . ) is a kinde of potable liquor , lately introduced in england from china , and the east indies , and is made of the leaf of a shrub , growing in those parts . team and theame , or tem and theme ( from the sax. tyman , i. propagare , to teem , or bring forth ) signifies a royalty granted by the kings charter to the lord of a mannor , for the having , restraining and judging bondmen , neifs , and villains , with their childrens goods and chattels in his court. theme est , quod habeatis totam generationem villanorum vestrorum , cum corum sectis & catallis ubicunque inventi fuerint in anglia . — qui autem jurisdictionem habent bujusmodi , curiani de theme , i. de nativis vel servis , dicuntur babore , in qua olim licuit inter caeteros cognoscere de statu vassalli sui , utrum liber esset an servus . anonymus in ms. theame ( says the learned spelman ) in the laws of edw. conf. cap. . & . significare videtur jurisdictionem cognoscendi in curia sua de advocationibus , sive intertiatis , hoc est , de vocatis ad warrantiam . see glanvile , lib. . cap. . and glossarium in x. scriptores . them , i. quod prior habet totam generationem villanorum suorum , cum eorum secta & catallis ubicunque in anglia inventae fuerint . ex registro priorat . de cokesford . teinland ( teinlanda ) tainland , teimland vel thainland , quasi terra thani vel nobilis . th●n , i. minister & landa , i. terra . breve regis willielmi junioris lib. rames . sect . . — willielmus rex anglia w. de cabuniis salutem . praecipio tibi ut facias convenire shiram de ha 〈…〉 , & judicio ejus cognosce si terra de isham ●●ddidit sirmam monachis sancti benedicti tempore patris mei ; & si ita invent . fuerit , sit in dominio abbatis . si verd teinlanda tunc suisse invenietur , qui eam tenet de abbate , te 〈◊〉 & 〈…〉 scat , quod si noluerit , eam abbas in dominio habeat , & vid● ne clamor inde amplius ad nos redeat . teste w. episc . dunelm . where teinlanda seems to signifie , terra haereditaria & colonorum servituti non obnoxia . in domesday , land holden by knights-service was called tainland , and land holden by soccage , keveland . coke on littl. sect . . teirs , is the third part of a pipe , viz. forry two gallons . see tierce . teller , is an officer in the exchequer , of which there are four , whose office is to receive all moneys due to the king , and to give the clerk of the pell a bill to charge him therewith . they also pay to all persons any money payable by the king , by warrant from the additor of the receipt , and make weekly and yearly books , both of their receipts and payments , which they deliver to the lord treasurer . telonium . see theloni●● templers , or knights of the temple ( templarii ) was a religious order of knighthood , instituted about the year . and so called , because they dwelt in a part of the buildings belonging to the temple at jerusalem , and not far from the sepulchre of our lord : they entertained christian-strangers and pilgrims charitably , and in their armor led them through the holy land , to view the sacred monuments of christianity , without fear of insidels . this order continuing and increasing for near two hundred years , was far spred in christendom , and particularly here in england . but at length some of them at jerusalem , falling away ( as some authors report ) to the saracens from christianity , or rather because they grew too potent , the whole order was supp●●ssed by clemens quintus , anno . and by the council of vienna , . and their substance given , partly to the knights of saint johns of jerusalem , and partly to other religious . cassan . de gloria mundi , par . . consid . . and see anno edw. . cap. . these flourished here in england from henry the seconds days , till they were suppressed . they had in every nation , a particular governor , whom bracton , lib. . cap. . calls magistrum militiae templi . the master of the temple here was summoned to parliament , hen. . m. . in schedula . and the cheif minister of the temple-church in london is still called master of the temple . of these knights , read mr. dugdales antiquities of warwickshire , fol. . in ancient records , they were also called fratres militiae templi solomonis . mon. angl. par . fol. . b. temporalties of bishops ( temporalia episcoporum ) are such revenues , lands , tenements , and lay-fees , as have been laid to bishops sees , by kings , and other great personages of this land , from time to time , as they are barons of parliament . see spiritualties of bishops . tempus pinguedinis & firmationis ▪ — et sciendum quod tempus pinguedinis hic computatur inter festum beati petri ad vincula & exaltationem sanctae crucis : et tempus firmationis inter festum s. martini & purificationem beatae mariae . ms. penes gul. dugdale arm. de temp. hen. . the first is the season of the buck , the later of the doe . see fermisona . tenancies ( anno eliz. cap. . ) are houses for habitation , tenements , or places to live in , held of another . edwardus illustris regis angliae primo genitus omnibus , &c. salutem & amorem . sciatis quod dedimus & assignavimus in tenenciam dilecto & fideli nostro yvoni pauntun omnes terras cum suis juribus & pertin . quae fuerunt hugonis bedelli inimici nostri in villa de ashele . tenendas ad nostrae beneplacitum voluntatis , nisi aliquis qui nobiscum personaliter interfuit in conflictu apud evesham , quarto die augusti , manus prius posuerit ad easdem . et ideo vobis mandamus , &c. dat. cestriae augusti , anno regni domini regis patris nostri . tend , seems to signifie as much as to endeavor , offer , or shew forth ; as to tend the estate of the party of the demandant . old nat. br. fol. . b. to tend an averment . britton , cap. . tender ( fr. tendre ) signifies carefully to offer , or circumspectly to endeavor the performance of any thing belonging to us ; as to tender rent , is to offer it at the time and place , where and when it ought to be paid . to tender his law of non summons ( kitchin , fol. . ) is to offer himself ready to make his law , whereby to prove , that he was not summoned . see law , see make. tenementis legatis , is a writ that lies to london , or other corporation , ( where the custom is , that men may demise tenements , as well as goods and chattels by their last will ) for the hearing any controversie touching the same , and for rectifying the wrong . reg. of writs , fol. . b. tenent or tenant ( tenens ) signifies him that holds or possesseth lands or tenements by any kinde of right , be it in fee , for life , years , or at will. tenant in dower , is she that possesseth land by vertue of her dower . kitchin , fol. . tenant by statute merchant , that holds land by vertue of a statute forfeited to him . tenant in franc-marriage ( idem , fol. . ) that holds land by vertue of a gift thereof , made to him upon marriage . tenant by the curtesie , that holds for his life , by reason of a childe born alive , and begotten by him of his wife , being an inheritrix . tenant per elegit , that holds by vertue of the writ elegit . tenant in morgage , that holds by vertue of a morgage . tenant by the verge in ancient demesn ( kitchin , fol. . ) is he that is admitted by the rad in a court of ancient demesn . tenant by copy of court roll , is one admitted tenant of any lands , &c. within a mannor , which time out of minde have been demisable , according to the custom of the mannor . west , par. . symbol . lib. . sect . . tenant by charter , is he that holds by feoffment , or other deed in writing . very tenant , that holds immediately of his lord ; for if there be lord , m●sn , and tenant , the tenant is very tenant to the mesn , and not to the lord above . kitchin , fol. . tenant paravail , see paravail . joynt-tenants , that have equal right in lands , by vertue of one title . littl. lib. . cap. . tenants in common , that have equal right , but hold by divers titles . particular tenant , stamf. praerog . fol. . is he who holds onely for his term . see coke in sir will. pelhams case , lib. . fol. . called also termor for life or years . see plowden , casu , colthirst , fol. . b. sole tenant , kitchin , fol. . he that hath no other joyned with him . several tenant is opposit to joynt-tenant or tenant in common . tenant al praecipe , is he against whom the writ praecipe is brought . coke , lib. . case of fines , fol. . tenant in demesn ( anno edw. . cap. ) is he that holds the demesns of a mannor for a rent without service . tenant in service ( an. edw. . stat . . ) is he that holds by service . see britton , cap. & . tenant by execution ( anno hen. . cap. . ) is he that holds land by vertue of an execution upon any statute , recoguizance , &c. tenant in fee-simple ( kitchin , fol. . ) tenant in fee-tail . tenant at the will of the lord , according to the custom of the mannor . tenant at will by the common law. idem , fol. . tenant upon sufferance . tenant of estate of inheritance . stamf. praerog . fol. . tenant in burgage . tenant in soccage . tenant in franck-fee , &c. with divers others . tenement ( tenementum ) signifies most properly a house or homestal , but in a larger sence it is taken , either for house or land that a man holds of another ; and joyned with the adjective frank , it contains generally lands , houses , or offices , wherein we have estate for life , or in fee. for kitchin , fol. . makes frank-tenement , and base estate , opposit ; and in the same sense britton uses it , chap. . tenheved ( sax. tienheofed , i. decem habens capita ) decanus , decemvir , caput vel princeps decaniae sive decuriae . ll. edw. confess . cap. . statuerunt justiciarios super quosqne decem friborgos , quos decanos possumus appellare ; anglice vero tienheofod dicti sunt . tenentibus in assisa non onerandis , &c. is a writ that lies for him to whom a disseisor hath alienated the land , whereof he disseised another ; that he be not molested for the damages awarded , if the disseisor have wherewith to satisfie them himself . reg. of writs , fol. . b. tenmantale ( sax. tienmantale , i. sermo decem hominum , vel decemvirorum numerus ) decuria , tithinga . ll. edw. conf. cap. . — et sint quieti de geldis , & danegeldis , & themanatale , & concelationibus , & scottis , &c. cart. edw. . n. . abbat . de thornton . see friburgh . tenore indictamenti mittendo , is a writ whereby the record of an inditement , and the process thereupon is call'd out of another court into the chancery . reg. of writs , fo . . a. tenths , ( decimae ) is that yearly portion or tribute , which all livings ecclesiastical yield to the king : for , though the bishop of rome does originally pretend right to this revenue , by example of the high-priest among the jews , who had tenths from the levites . numb . ca. . hieron . in ezech. yet we read in our chronicles , that these were often granted to the king by the pope , upon divers occasions , sometimes for one year , sometimes for more , until , by the statute hen. . ca. . they were annexed perpetually to the crown see disms . it signifies also a tax levied of the temporalty . inst . fo . . tentor , a stretcher , tryer or prover , which dyers and clothiers used , anno rich. . ca. . but prohibited by the stat. eliz. ca. . tenure , ( tenura ) is the manner whereby tenants hold lands and tenements of their lords . what makes a tenure , and what not , see perkins reservations , where you shall find most of those tenures recited , which are now in england . see cromptons jurisd . fo . . new book of entries , verbo tenure . mr. fabian philips book , entituled , tenenda non tollenda , and the stat. car. . ca. . the family of barnhams hold the mannor of nether bilsington in the county of kent , by this tenure ; to carry the last dish of the second course to the kings table at his coronation , and presenting him with three maple-cups , which was performed at the coronation of king charles the second . term , ( terminus ) signifies commonly the bounds and limitation of time ; as a lease for term of life or years . bracton , lib. . ca. . nu . . but most notoriously it is used for that time , wherein the tribunals or places of judgment are open for all that list to complain of wrong , or to seek their right by course of law or action . the rest of the year is called vacation . of these terms there are four in every year , during which time matters of justice are dispatch'd . one is hillary term , which begins the d of january , or , if that be sunday , the next day following , and ends the twelfth of february : the next is easter term , which begins the wednesday fortnight after easter-day , and ends the munday next after ascension-day . the third is trinity term , beginning the friday next after trinity-sunday , and ending the wednesday fortnight after . the fourth is michaelmas-term , which anciently began the ninth of october , but ( by stat. car. ca. . ) contracted to the d of october , and ending the th of november . termini apud nos dicuntur c●rtae anni portiones agendis litibus designatae . see spel , de origine & ratione terminorum forensium . termonland , seems to be the gleab-land , or land of the church ; anciently so called . termor , ( tenens ex termino ) is he that holds for term of years , or life . kitchin , fo . . litt. fo . . terra giliforata , land held by the tenure of paying a gilly-flowre , ms. terra extendenda , is a writ directed to the escheator , &c. willing him to enquire and find out the true yearly value of any land , &c. by the oath of twelve men , and to certifie the extent into the chancery , &c. reg. of writs , fo . . b. terra frusca . — continens xl . acras terrae fruscae , pasturae , &c. mon. angl. par. fo . . b. fresh-land , or such as hath not been lately plowed . this is elsewhere written terra frisca . terra nova . saepe legitur in chartis feodalibus & in sensualibus schedulis , vel proterra noviter concessa , vel noviter assarta . prior. lew. pa. . — reddat pro nova terra sol . spe 〈…〉 . terra vestita , is used in ancient charters , for land sown with corn. terra sabulosa , ( lat. ) gravelly , or grossesandy land . — et praedictae xxiiii acrae terrae valent per ann . xiii sol . & iv denar . & non plus , quia est terra sabulosa . inq. ed. . n. . norf. in turr. lond. terra puturata . see putura . terra lucrabilis . — tam in mora , quam in terra lucrabili & marais , cum omnibus piscariis suis . mon. angl. par. fo . . a. land that may be gained from the sea , or inclosed out of a wast , to particular use . terra excultabilis , — totam illam terram excultabilem , quam habuit apud norwicu 〈…〉 in campis . mon. angl. par. fo . . b. land that may be till'd or plow d. terra culta , land that is tilled , or 〈◊〉 nured ; and terra inculta , the contrary , see wacnoth . terrage , ( terragium ) edward the third granted by patent to john of gaunt and blanch his lady , for their live , — quod sint qui 〈…〉 de theolonio , savagio , passagio , lastagio , tallagi● , carvagio , prisagio , pickagio & terragio ; which seems to be an exemption , a praecariis , viz. boons of plowing , reaping , &c. and perhaps from all land-taxes . terrar , ( terrarium , vel catalogus ter 〈…〉 ) is a book , survey , or land-roll , wherein the several lands , either of a single person , or of a town are described ; containing the quantity of acres , boundaries , tenants names , and such like , anno eliz. ca. . in the exchequer there is a terrar of all the glebe-lands in england made about edw. . terris , bonis & catallis rehabendis pest purgationem , is a writ that lies for a c 〈…〉 , to recover his lands , goods , or chattels formerly seized on , after he has cleer'd himself of that felony , upon suspition whereof he was formerly convict , and deliver'd to his ordinary to be purg'd . reg. of writs , fo . . b. terris liberandis , is a writ , that lies for a man convicted by attaint , to bring the record and process before the king , and to take a fine for his imprisonment , and to deliver him his lands and tenements again , and to release him of the strip and waste . reg. of writs , fo . . a. terris & catallis tentis ultra debitum levatum , is a writ judicia , for the restoring lands or goods to a debtor that is distreined above the quantity of the debt . reg. jud. fo . . b. terre tenant , ( terrae tenens ) is he who has the natural and actual possession of the land , which we otherwise call the occupation , anno eliz. ca. . for example , a lord of a mannor has a freeholder , who lets out his free-land to another , this other ( having the actual possession ) is called the terre-tenant . west . par. . symb. tit . fines , sect. . cromp. jurisd . fo . . britton , ca. . perkins feoffments , . ters . see tierce . tertian , a measure , containing fourscore and four gallons . anno rich. . ca. . & hen. . ca. . so called , because it is the third part of a tun. tertium denarium . see third-peny . testament , ( testamentum ) what it is in the common signification see in will. it was anciently used ( according to spelman ) pro scripto , charta vel instrumento , quo praediorum rerumve aliarum transactiones perficiuntur : sic dictum quod de ea re vel testimonium ferret , vel testium nomina contineret . — siquis contra hoc meae authoritatis testamentum aliquod machinari impedimentum praesumpserit , &c. charta fundationis croylandiae ab aethelbaldo rege , anno dom. . testator , ( lat. ) he that makes a testament . see swinborn of wills and testaments , and see will. testatum , is a writ , in personal actions ; as if the desendant cannot be arrested upon a capias in the county where the action is laid , but is returned non est inventus by the sheriff ; this writ shall be sent out into any other county , where such person is thought to have whence to satisfie ; which is termed a testatum ; because the sheriff has formerly testified , that the defendant was not to be found in his balywic . see kitchins return of writs , fo . . b. leste , is a word commonly used in the last part of every writ , wherein the date is contained , which begins with these words , teste me ipso , &c. if it be an original writ , or if judicial , teste johan . keeling milite or iohanne vaughan mil. according to the court , whence it comes . yet we read in glanvile , ( lib. . ca. . & . & lib. . ca. . ) the last clause of an original writ to be teste radulpho de glanvilla apud clarendon , &c. and divers times in the reg. of writs , teste custode angliae , as namely in the title prohibition , fo . . a. & consultation , fo . . b. testimonial , ( anno eliz. . ) is a certificate under the hand of a justice of peace , testifying the place and time , when and where a souldier or mariner landed , and the place of his dwelling and birth , unto which he is to pass , &c. or such like , inst . fo . . teston , ( anno & ed. . ca. . ) a sort of money , which , among the french , did bear the value of denar . and so perhaps formerly in england ; but , in henry the eighths time , being made of brass , lightly gilt with silver , it was reduced to d , and , in the beginning of edward the sixth to d , afterterwards to d. thack-tile , ( anno edw. . ca. . otherwise called plain-tile , which are laid on the side of a house . thanage of the king , ( thanagium regis ) signify'd a certain part of the kings lands , or property , whereof the ruler or governor was called thane . domania regis , and thanagia idem significant , sayes skaene . thane , or theyn ( thanus , from th'saxon thegen , ) signifies sometimes a nobleman , sometimes a free-man , sometimes a magistrate , but more properly an officer , or minister of the king. this appellation was in use among us after the norman conquest , as appears by doinesday , and by a certain writ of william the first . willielmus rex salutat hermannum episcopum & stewinum & britwi & omnes thanos meos in dorsestrensi pago amicabiliter . ms. de abbotsburi . skaene sayes it is the name of a dignity , equal with that of the son of an earl. cambden sayes , they were enabled onely by the office which they administred . see mills , de nobilitate , fo . . theft , ( furtum ) is an unlawful felonious taking away another mans moveable and personable goods against the owners will , with an intent to steal them ; which is divided into theft , simply so called ; and , petit theft , whereof the one is of goods above the value of d , and is felony , the other under that value , and is no felony , but called petit larceny . see larceny and felony . theft from the person , or in the presence of the owner , is properly called robbery . see west , part . symb. tit. inditements , sect. , , . theftbote , ( sax. theofte , i. furtum & bote , compensatio , ) est quant home prist chattel de larone de luy faveurer & maintainer & nemy autrement . assis , pa. . the receiving goods from a thief , to the end to favour and maintain him , the punishment whereof is ransom and imprisonment , and not loss of life or member . stanif . pl. cor. lib. . ca. . antique dicebatur precium quo furti reus se eximeret a dispendio vitae ; hodie vero de iis dicitur qui furtiva bona a latrone susceperint , sceleris sui fovendi gratia , quo sensu bote , pro praeda , ut alias solet intelligendum est . in privilegiorum chartis ubi theftbote conceditur , intelligitur alias esse emenda furta sine consideratione curiae domini regis . theftbote , ( inquit statutum walliae . anno . ed. . — hoc est , emenda furti , sine consideratione curiae domini regis . spel. and see inst . fo . . thelonium , or breve essendi quietum de thelonio , is a writ lying for the citizens or any city , or burgesses of any town , that have a charter or prescription to free them from toll , against the officers of any town or market , who would constrain them to pay toll of their merchandise , contrary to their said grant or prescription . fitz. nat. br. fol. . thelonio rationabili habendo pro dominis habentivue dominica regis ad firmam , is a writ that lies for him that hath of the kings demesn in fee-farm , to recover reasonable toll of the kings tenants there , if his demesn have been accustomed to be tolled . reg. of writs , fol. . b. them. see team . then , significat seroum . fleta , lib. . cap. thenecium . — quod praedicti parochiani — decimas inferius annotatas ecclesiis suis persolvant , scil . decimam lactis , ovorum , thenecii agrorum , apum , mellis , &c. const . rob. winchelsey archiep. cant. tit . de decimis . ibi lindewode thenecii agrorum , i. arborum crescentium circa agros , pro clausura corum . vulgarly called hedgerows or dikerows . thewe . georgius grey comes cantii clamat , in maner . de bushton & ayton , punire delinquentes contra assisam panis & cervisiae per tres vices per amerciamenta , & quarta vice pistores per pilloriam , braciatores per tumbrellum , & rixatrices per thewe , hoc est ponere eas super scabellum vocat . a cuckingstoole . pl. in itin. apud cestriam , hen . perhaps from the sax. theoƿ , a slave or captive . thingus ( thanus ) a nobleman , a knight , or freeman . sciatis me concessisse omnibus militibus & omnibus thing is & omnibus libere tenentibus , qui manent in foresta mea de honore de lancaster , quod possunt , &c. cromp. jur. fol. . thirdborow , is used for a constable , anno hen. . cap. . which seems to be corruptly used for the sax. freoborg , i. ingenuus fidejussor . lambert in his duty of constables , pag. . thirdings . the third part of the corn or grain growing on the ground at the tenants death , due to the lord for a heriot within a certain mannor , and lands belonging to the chappel of turfat in com. heref. third night-awn-hynde ( trium noctium hospes ) by the laws of s. edw. ( cap. de hospitibus ) if any guest lay a third night in an inn , he was accounted a domestick , and his host was answerable for what offence he should commit . forman night uncuth . twa night gueste . third night awn hynde , i. prima nocte incognitus , secunda hospes , tertia domesticus censetur . bracton , ( lib. . tract . . cap. . num . . ) writes it hoghenehyne pro agen-hyne . item utimur , quod si extranei morantur in burgo praedicto ultra tres dies , invenient fidejussores de bene gerendo se erga burgenses & communitatem , dum moram inter ipsos fecerint . ms. codex de ll. statutis & consuetud liberi burgi villae mountgomer . fol. . b. see uncuth . third-peny , denarius tertius est ea pars mulctarum forensiumque molumentum , quae in comitatu olim cedebat comiti , rege alias duas percipiente . ll. edw. conf. cap . rex habebit solidos & consul comitatus . qui tertium babebit denarium de forisfacturis , &c. and was anciently so fixt and appropriate to an earldom , as the earldom of oxford , in the raign of king henry the second , passed by the grant of tertium denarium comitatus oxon , ut fit inde comes . de quo vide seldens titles of honor. thokes ( anno edw. . cap. . ) thokes or fish with broken bellies ; are not by the said statute to be mixt or packed with talefish . thol ( thollonium ) est libertas emendi & vendendi in terra sua . arch. lamb. fol. . thol , i. quod prior habet in mercato suo dic lunae quandam mensuram de bladis venditis , & quoddam certum de animalibus & caeteris similibus venditis . reg. priorat . cokeford . see toll . thorough toll . — bowgh in yorkshire , a little village , where in times past the earls of richmond had a pretty castelet , and a certain custom called thorough toll ( says camden . ) see toll . thrave of corn ( from the sax. threaf , i. a bundle , or the british drefa , i. twenty four ) is in most parts of england twenty four sheaves , or four shocks , six sheaves to the shock . anno hen. . cap. . yet in some counties they count but twelve sheaves to the thrave . as in the case of the burgesses of derby . — hi autem ad festum sancti martini reddebant regi duodecim trabes annonae . domes . de burgensibus derbiae . see peter-corne . thrimsa ( from the sax. thrim , quod ternos significat ) signified of old a piece of money of three shillings , according to lambert , or rather ( according to selden ) the third part of a shilling . tit. of honor , fol. . see weregild . thrithing ( thrithingum ) in the statute of merton , signifies a court which consists of three or four hundreds . cokes part. instit . fol. . thrower . see silkthrower . thwertnik — edwardus , &c. — concessimus etiam , quod vicecomes noster aut haeredum nostrorum , qui pro tempore fuerit in dicto comitatu , de caetero faciat executiones pro debitis recuperatis & recognitis in comitatu vel scaccario cestriae , aut in itinere justiciariorum , qui pro tempore fuerit , absque aliquo capiendo pro executione hujusmodi facienda , licet etiam praeteritis temporibus usum sit , prout per cartam habet ipsa communitas ( scil . cestrescirae ) quod si aliquis in curia nostrae c●●patus fuerit , per thwertnik se defendere possit ; quia haec defensio est contraria legi communi , nutrix malorum , pacis emula & damnosa populo pacifico . volumus etiam de consensu & requisitione dictae communitatis , ordinamus & praecipimus , quod dicta defensio per thwertnik de caetero non allocetur , sed annulletur totaliter & damnetur , &c. rot. cart. de anno , & regis ric. . num . . per inspex . tidesmen ( anno car. . cap. . ) are certain officers that belong to the custom-house , and are appointed to watch , or attend upon ships till the custom of the fraight be paid ; and they are so called , because they go aboard the ships at their arrival in the mouth of thames , and come up with the tide . tierce ( fr. tiers , i. a third , or third part ) a measure of liquid things , as wine , oyl , &c. containing the third part of a pipe , or forty two gallons . anno hen. . cap. . tigh or teage ( sax. teag ) a close or enclosure , a croft . in veteri charta ecclesiae cantuar. clausula . — mansionem quoque quae est in aquilonali parte doroberniae & clausulam quam angli dicunt teage , quae pertinet ad praedictam mansionem , &c. the word tigh is still used in kent in the same sense . timber of skins , is forty skins . de qualibet tymber de fitcheux venal . ob . pat. ric. . pars . m. . haec civitas ( sc . cestriae ) tunc reddebat de firma libras & tres timbres pellium martrinarum . ll. ed. conf. timberlode ( sax. timbrelade ) servitutis genus , quo vassallus obligatur materiam sive lignum de sylva , ubi prosternitur , ad domini sui domum deferre . gloss . in x. scriptores . tineman or tienman , was of old a petty officer in the forest , who had the nocturnal care of vert and venison , and other servile employments . constitution . forestae canuti regis , cap. . tipstaff ( saio , sax. sagol , i. fustis , baculus ) is one of the warden of the fleets men , that attends the kings courts with a painted staff , for the taking such to ward as are committed by the court , and to attend such prisoners as go at large by licence . these are otherwise called bastons . anno ric. . cap. . and eliz. cap. . tithes ( decimae , from the saxon teoþa , i. the tenth ) are the tenth part of all fruits predial , personal , and mixt , which are due to god , and consequently to his churches ministers , for their maintenance . levit. , . omnium bonorum licite quaesitorum quota pars deo , divina constitutione , debita . pasche , jac. rot. . in communi banco . it was resolved , quod decimarum tres sunt species , quaedam personales , quae debentur ex opere personali , ut artificio , scientia , militia , negotiatione , &c. quaedam praediales , quae proveniunt ex praediis , i. ex fructibus praediorum , ut blada , vinum , faenum , linum , cannabum , &c. seu ex fructibus arborum , ut poma , pyra , pruna , volema , cerasa , & fructus hortorum , &c. quaedam mixtae , ut de caseo , lacte , &c. aut ex faetibus animalium , quae sunt in pascuis , & gregatim pascuntur , ut in agnis , vitulis , haedis , capreolis , pullis , &c. ex praedialibus sunt quaedam majores , quaedam minutae . majores , ut frumentum , siligo , zizania , faenum , &c. minores sive minutae , quidam dicunt , sunt qui proveniunt ex menta , aneto , oleribus , & similibus juxta illud dictum domini , luc. . . vae , qui decimatis mentam & rutam , &c. alii dicunt , quod in anglia consistunt decimae minutae in lino , quae sunt praediales , & lana , lacte , caseis & in decimis animalium , agni , pullis , & ovibus ; decimae etiam mellis & cerae numerantur inter minutas , quae sunt mixtae . vide lindwood cap. de decimis . laymen ( in these later times ) taking small occasions to withdraw their tithes , ( as sir edward coke observes , inst . fol. . ) the statutes of hen. . cap. . — ejusdem , cap. . and edw. . cap. . were made to enforce the payment thereof ; which former times required not , when more was often given , then was either due or demanded , as appears by these , and many other recorded donations . ego willielmus de braosa do & concedo ecclesiae sancta mariae de bergaveny & monachis ibidem deo servientibus , omnem decimam de castello de bergaveny , sc . de pane , de vino , de gervisia , & sisera , & de omni genere potus , de carnibus , de piscibus , de sale , de melle , de cera , de sevo , & omni expensa generaliter , tam parva quam magna castelli jam praedicti , de denariis quoquomodo adquisitis & habitis , de placitis , de auxiliis , de prisonibus , de bobus , de vaccis , de porcis , de ovibus , de capris , de equis , & de omnibus rebus , & de omni eventu quoquomodo evenerit jam dicto castello . mon. angl. par . fol. . a. et decimas omnium proventuum placitorum , tolnetorum , donorum , lucrorum & reddituum meorum , & totius panis & potus expensae de castello brechoniae & de haya . carta rogeri comitis herefordiae . sine dat. and anciently many men were so scrupulously careful in their payment of tithes , as they at their death bequeathed a soul sceat or soot to theit parish priest , in lieu of any tithes forgotten ; and at their funerals caused their best ox or horse to be led with the corps , and , as a mortuary or oblation , given to the priest , in recompence of any tithes which might be forgotten . tithing or trithing ( tithingum , from the saxon teoþunge , which signifies decuriam ) is the number or company of ten men with their families , cast or knit together in a society , all being bound to the king for the peaceable behavior of each other . of these companies there was one cheif person , who of his office was called teothung-man , at this day in the west parts tithingman , but now he is nothing but a constable ; for that old discipline of tithings is left long since . tithing is also used for a court. mag. char. cap. . and merton , cap. . see cheif-pledge , frank-pledge , decennier , and trithing . tithing-penny , alias tith-penny , alias thething-penny . — et sint quieti de thething-penny , tympenny , & de omnibus forisfactis quacunque occasione emerserunt , &c. in mem. scac. de anno edw. . trin. rot. . abbati & monachis rading . tithing-penny , hoc est quieti de tallagio decennae sive tithing per consuetudinem . ms. in bibl. cotton sub tit . vitellius . c. . fol. . b. tod of wool , contains twenty eight pounds , or two stone ; mentioned in the stat. car. . cap. . it comes from the fr. toilet , a wrapper , within which , by usage , two stone of wool is folded . inst . fol. . toft ( toftum ) a messuage or place where a messuage hath stood , but is decayed ; a word much used in fines . west , par . . symbol . tit . fines , sect . . — capitale toftum & croftum quod fuit walteri patris sui . carta petri de brus in bibl. cotton . scites & tofts . anno car. . cap. . toftman ( toftmannus ) the owner or possessor of a toft . toftmanni similiter operabantur a sancto michaele usque ad autumpnum , & in autumno per hebdomadas , unaquaque hebdomade per dies , &c. pri. lew. pag. . see molman . tol ( tollere ) as it is a verb , signifies to defeat or take away . anno hen. . cap. . as to tol the entry , i. to take away the right of entry . toll ( tolnetum vel theolonium ) is a saxon word , and hath two significations . first , it is used for a liberty to buy and sell within the precincts of a mannor : secondly , for a tribute or custom paid for passage , buying , selling , &c. bracton , lib. . cap. . num . . interprets it to be a liberty as well to take , as to be free from toll ( for they who are enfeoffed with toll are custom-free , ( says skene ) toll hoc est , quod vos & homines vestri de toto homagio vestro sint quieti de omnibus mercatis & de tolneto de omnibus rebus emptis & venditis . of this freedom from toll , the city of coventry boasts of an ancient charter , granted by leosric ( or luriche ) merciorum comes , who at the importunity of godeva , his vertuous lady , granted this freedom to that city ; and in richard the seconds time ( according to mr. dugdale in his description of warwickshire ) the picture of him and his lady was set up in the south-window of trinity church there , holding in his right hand a charter , with these words written thereon . i luriche for the love of thée , do make coventry toll-frée . some authors make mention of toll-through , which is money paid for passage in , or through some high-ways , or over ferries , bridges , &c. toll-travers , for passing over a private mans ground ; and toll-turn , which is toll paid at the return of beasts from fair or market , though they were not sold . plowden , casu willion . fol. . kitchin , fol. . by the ancient law of this land , the buyers of corn or cattle , in fairs or markets ought to pay toll to the lord of the market , in testimony of the contract there lawfully made in open market , because privy contracts were held unlawful . horns mirror , lib. . tollage ( anno car. . cap. . ) see tallage . tolsester . — per tolsester , clamat esse quiet . de reddend . unum sextarium cervisiae quod continet xvi . lagenas , de nova cervisia mensurata , desubtus le shakelif pro licencia braciandi cervis . per totum annum . ex rol. plac. in itin. apud cestriam , hen. . the same word occurs in carta hen. . m. . see gavel-sester . tolt ( tolta ) is a writ , whereby a cause , depending in a court baron , is removed to the county court , and so called because it does tollere loquelam , from the one court to the other . preface to cokes rep. plac. coram rege pasc . edw. . rot. . tolta placiti significat processum per quem causa a jurisdictione juris temporalis tollitur . toltray — venditio salis , quae debet solvi i. bushel & dimid . salis per mensuram d. ms. de temp. edw. . tonne . see tun. tort ( fr. ) injustice , injury . as , de son tort mesme , in his own wrong . crokes rep. whites case , fol. . wrong or injury is properly called tort , because it is wrested or crooked . coke on littl. fol. . b. tortfeasor ( fr. tort faiseur ) a doer of wrong , a trespasser . croke part , fol. . num . . toties quoties ( anno car. . cap. . ) as often as . totted , a good debt to the king , is by the foreign apposer , or other officer in the exchequer , noted for such , by writing this word tot to it . anno edw. . cap. . and edw. . cap. . see practice of the exchequer , pag. . totteray , was a customary payment of four pence for every bushel and a half of corn , sold at maldon in essex . hil edw. . tourn . see turne . tout temps prist & uncore est , ( i. always ready , and is so at this present ) is a kinde of plea in way of excuse , or defence for him that is sued for any debt or duty belonging to the plaintiff . see brooks abr. fol. . towage ( towagium , fr. touaige ) is the towing or drawing a ship or barge along the water by men or beasts on land , or by another ship or boat fastned to her . also , that money or other recompence , which is given by bargemen to the owner of the ground , next a river where they tow a barge , or other vessel . the word may probably be derived from the saxon teon ; ducere , trahere . — dominus rex habeat & habere debeat thowagium navium & batellorum majorum & minorum in aqua de tyne , &c. pla. coram rege & ejus concil . parl. edw. . in turre london . traylbaston . see justices of traylbaston , and see the copies of several commissions granted to them by edward the first in spelmans glossarium , verbo , traylbaston . the common people in those days called them traybaston , quod sonat , trahe baculum . edward the first in his thirty second year ( says sir rich. baker ) sends out a new writ of inquisition , called trailbaston , against intruders on other mens lands , who , to oppress the right owner , would make over their lands to great men ; against batterers hired to beat men , breakers of peace , ravishers , incendiaries , murderers , fighters , false assisors , and other such malefactors ; which inquisition was so strictly executed , and such fines taken , that it brought in exceeding much treasure to the king. chron. fol. . see plac. parliamentaria , fol. . & . and instit . . and in a parliament ric. . the commons of england petitioned the king , that no commission of eyre , or trayle baston might be issued , during the wars , or for twenty years to come . rot. parl. ric. . traytor ( traditor , proditor . ) see treason . traiterous position , of taking arms by the kings authority against his person , and those that are commissionated by him ; condemned by the stat. car. . cap. . transcript ( anno & hen. . cap. . ) is the copy of any original , written again or exemplified . as the transcript of a fine . transcripto recognitionis factae coram justiciariis itinerantibus , &c. is a writ for the certifying of a recognizance into chancery , taken before justices in eyre . reg. of writs , fol. . b. transcripto pedis finis levati mittendo in cancellariam , is a writ for the certifying the foot of a fine , levied before justices in eyre , &c. into the chancery . reg. of writs , fol. . and reg. judic . fol. . transgressione , is a writ , commonly called a writ or action of trespass . of which , fitzherbert hath two sorts ; one , vicountiel , so called , because it is directed to the sheriff , and is not returnable , but to be determined in the county . the form whereof differs from the other , because it hath not these words quare vi & armis , &c. nat. br. fol. . g. the other is termed a writ of trespass , which is to be sued in the common pleas or kings bench. nat. br. fol. . e. see trespass , and the divers use of this writ in the table of reg. of writs & inst . fol. . transire ( anno car. . cap. . ) i used for a custom-house warrant , or let-pass ; from transeo , to go forth , or let pass . transitory , is the opposite to local . see local . trantery . so in some mannors they call the money arising by amercements of ale-sellers and victuallers , for breaking the assise of bread and ale , as at luston , and other mannors in herefordshire , especially those belonging to the brishopric of hereford . but why so called quaere . travers ( from the fr. traverser , i. transfigere ) signifies sometimes to deny ; sometimes to overthrow or undo a thing , or to put one to prove some matter , much used in answers to a bill in chancery ; or it is that which the defendant pleadeth , or saith in bar to avoid the plaintiffs bill , either by confessing and avoiding , or by denying and traversing the material parts thereof : the formal words of which travers are , in our french , sans ceo , in latin absque hoc , in english without that . see kitchin , fol. . & . to travers an office is nothing else but to prove , that an inquisition made of goods or lands by the escheater , is defective and untruly made . so to travers an indictment , is to take issue upon the cheif matter , and to contradict or deny some point of it . as in a presentment against a. for a high-way overflown with water , for default of scouring a ditch , &c. a. may travers either the matter , that there is no high-way there , or that the ditch is sufficiently scoured ; or otherwise he may travers the cause , viz. that he hath not the land , or that he and they whose estate , &c. have not used to scour the ditch . lamb. eiren. lib. . cap. . pag. , . see the new book of entries , verbo , travers . treason ( fr. trahison , i. proditio ) is divided into high and petit . anno edw. . stat . . cap. . high-treason is defined to be an offence committed against the security of the king or commonwealth , whether it be by imagination , word , or deed ; as to compass or imagin the death of the king , queen , or prince ; or to deflower the kings wife , or his eldest daughter unmarried , or his eldest sons wife , or levy war against the king in his realm , adhere to his enemies , counterfeit his great seal , privy seal , or money ; or wittingly to bring false money into this realm counterfeited like the money of england , and utter the same : to kill the kings chancellor , treasurer , justices of either bench , justices in eyre , of assise , or of oyer and terminer , being in their place , doing their office. ( an. edw. . cap. . ) forging the kings seal-manuel or privy signet , privy seal , or foreign coyn current here ( anno mar. cap. . ) or diminishing or impairing current money ( eliz. cap. . eliz. cap. . and eliz. cap. . or to say , the king is an heretick or papist , or that he intends to introduce popery , &c. anno car. . cap. . and many others , which you may read there , and in other places particularly expressed . in case of this treason a man shall be hanged , drawn , and quartered , and forfeit his lands and goods to the king , it is also called treason paramount . anno edw. . cap. . petit treason , is when a servant kills his master , a wife her husband , or when a secular or religious man kills his prelate or superior to whom he ows faith and obedience , and in how many other cases petit treason may be committed . see cromp. just . of peace . this kinde of treason gives forfeiture of escheats to every lord within his own fee. see bracton , lib. . tract . . cap. . num . . & . there is also mention of accumulative treason , and constructive treason , in the stat. car. . cap. . treasure-trove , ( fr. tresor-trouve , i. treasure-found ) signifies veterem depositionem pecuniae , cujus non extat memoria , ut jam dominum non habeat — and , though the civil law give it to the finder , according to the law of nature , yet , our law gives it to the king by his prerogative , or to some other , who claims by the kings grant , or by praescription , as appears by bracton , lib. . tract . . ca. . nu . . the punishment for concealing treasure found is imprisonment and fine . but , if the owner may any wayes be known , then it does not belong to the kings prerogative . briton , ( ca. . ) sayes , 't is every subjects part , as soon as he has found any treasure in the earth , to make it known to the coroners of the county , &c. see kitchin , fo . . anno & ph. & mary , ca. . this was anciently called fyndaringa , of finding the treasure . ll. hen. . ca. . see inst . fo . . treasurer , ( thesaurarius ) is an officer , to whom the treasure of another is committed to be kept , and truly disposed of ; the chief of these with us is the treasurer of england , who is a lord by his office , and one of the greatest men of the land ; under whose government is all the princes wealth contained in the exchequer , as also the check of all officers any way employed in collecting imposts , tributes , or other revenues belonging to the crown , &c. smith de repub. angl. lib. . ca. . see anno ed. . ca. . and other statutes relating to this great officer . there is also treasurer of the kings houshold , who is also of the privy-council , and , in the absence of the steward of the kings houshold , has power , with the controller and steward of the marshalsea , without commission to hear and determin treasons , murder , &c. committed within the kings palace . stam. pl. cor. lib. . ca. . there is also in the statutes mention of treasurer of the exchequer , treasurer of the navy , treasurer of the kings chamber , treasurer of the kings wardrobe , treasurer of the wars , &c. and , most corporations throughout the kingdom , have an officer of this name , who receives their rents , and disburseth their common expences . treat ( from the french traire , i. emulger● ) signifies as much as taken out , or withdrawn : as a juror was challenged because he could not dispend l. and therefore was treat by the statute ( old. nat. br. fo . . ) that is , removed or discharged . trebuchet , ( terbichetum ) a tumbrel , or cokestole , part. inst . fo . . see tribuch . treet ( triticum , i. wheat . ) in the statute of hen. . bread of treet seems to be that bread which was made of fine wheat . see cocket . trental ( trentale ) an office for the dead , continued thirty dayes , or consisting of thirty masses ; from the italian trenta , i. triginta , mentioned anno ed. . ca. . — et volo & ordino quod executores mei ordinant scu ordinare faciunt unum trentall pro salute animae meae . will proved , anno . trespass ( transgressio ) signifies any transgression of the law , under treason , felony or misprision of either , stam. pl. cor. fo . . where he sayes , that for a lord of the parliament , to depart from the parliament without the kings licence , is neither treason , nor felony , but trespass . but , it is most commonly used for that wrong or dammage , which is done by one private man to another , or to the king in his forest ; in which signification it is of two sorts , trespass-general , otherwise termed vi & armis ; and , trespass-special , otherwise called trespass upon the case , which seems to be without force ( howbeit sometimes they are confounded . ) in an action of trespass the plaintiff alwayes sues for damages , or the value of the hurt done him by the defendant . see brokes abridg. tit. trespass . there is also trespass local , and trespass transitory ; trespass local is that , which is so annexed to a place certain , that if the defendant joyn issue upon the place , and traverse the place , onely by saying , absque hoc , that he did the trespass in the place mentioned in the declaration , and aver it , it is enough to defeat the action . trespass transitory is that which cannot be defeated by the defendants travense of the place , because the place is not material ; but , actions of trespass quare clausum frogi● ought to be local . bracton , lib. . ca. . num . . divides transgressionem in majorem & minor●m . see also new book of entries , verbo trespass . trespassants , ( fr. ) passengers : so britton uses it , ca. . trial , ( triatio ) is used for the examination of all causes civil or criminal before a judge , according to the laws of our realm ; of which there are divers kinds ; as , matters of fact shall be tryed by the jurors ; matters of law , by the justices ; matters of record , by the record it self . a lord of parliament , upon an indictment of treason , or felony , shall be tryed without any oath , by his peers , upon their honors and allegiance ; but , in appeal , at the suit of any subject , they shall be try'd per bonos & legales homines . if ancient demeasne be pleaded of a mannor , and deny'd , this shall be try'd by the record of domesday . bastardy , excommengement , lawfulness of marriage , and other ecclesiastical matters , shall be try'd by the bishops certificate . of the ancient manner of trials by combat , and great assize , see combat and assise . see stamf. pl. cor. lib. . ca. , , . and twelve men. triatio est exactissima , litis contestatae , coram judice , per duodecemvirale sacramentum , exagitatio . pat. . r. joh. m. . in fidelitate leulini . statuitur de triatione differentiarum dicti leulini , &c. tribuch & trebuchet , ( terbichetum ) a tumbrel , cuckingstole , or gogingstole . — haec omnia concedimus deo & ecclesiae sancti albani , cum soca & sacca , on stronde & streme , on wude & feld , toll & teym , tribuch , hamsoken , murdre , forestal , danegeld , infangenthef & utfangenthef , flemenefremthe , blodwite , wreck , &c. carta joh. regis , dat. junii , anno regni . trihing , or trithing , ( sax. trihinga ) contains three or four hundreds , or the third part of a shire or province ; also a court held within that circuit , which was the same we now call a court-leet , which is above a court-baron , and inferior to the county court. breve de atturnato de loquelis , &c. regist . . — provisum est quod quilibet liber homo libere possit facere atturnatum suum ad loquelas suas prosequendas & defendendas motas in trithyngis , comitatibus , wapentachiis & aliis curiis sine breve nostro . sur le statute de merton , ca. . fiat autem visus de franciplegio sic , viz. quod pax nostra teneatur , & quod trithinga sit integra , sicut esse consuevit , &c. mag. char. ca. . see fleta , lib. . ca. . & origin . jurid . fo . . see lath. — et volo quod dicti monachi sint quieti & soluti ab omni scotto , geldo , auxiliis vicecomitum , hydagio , & a secta in schiris , wapuntachis , hundredis , trithingis , & omnimodis aliis curiis & saeculi oneribus universis . carta eadredi regis anno . abb. & monachis croiland . trinity-house , is a kind of colledge at debtford , belonging to a company , or corporation of seafaring men , who have power by the kings charter to take knowledge of those that destroy sea-marks , and to redress their doings , as also to correct the faults of saylors , &c. and to take care of divers other things belonging to navigation and the seas . anno , eliz. ca. . trink , is a kind of fishing-net , or an engin to catch fish , anno hen. . ca. . cokes rep. fo . . mich. . jac. triours , are such who are chosen by the court to examin whether a challenge made to the panel , or any of them be just , or no. brook tit . challenge , fo . . and old. nat. br. fo . . trista . — in quo rex cum caeteris superior constitisset , secundum legem venandi , quam vulgus tristam vocant , singulis proceribus cum suis canibus singula loca delegat , ut obsessa undique bestia , ubicunque eligeret exitum , inveniret exitium , &c. decem scriptores , fo . . servitium vel officium plane sapit , fiducia mixtum ; origo , in fallor a nostratium trust . gloss . in x. script . see tristris . tristris , tristis & trista , ( from traist , i. trust ) is an immunity , whereby a man is freed from his attendance on the lord of a forest , when he is dispos'd to ch●se within the forest , and shall not be compel●d to hold a dog , follow the chase , nor stand at a place appointed , which otherwise he might be , under pain of amercement , manw. par . . pa. . — et sint quieti , &c. de chevagio , honde-peny , buckstal & tristris , & de omnibus misericurdiis , &c. privileg . de semplingham . inst . fo . . thrithing , ( trithingum ) in the statute of merton , ca. . signifies a court consisting of three or four hundreds , inst . fo . . see trihing . tronage , ( tronagium ) is custom , or toll taken for weighing wooll ; fleta , ( lib. . ca. . sect. item ulnas ) sayes , that trona is a beam to weigh with , mentioned in west . . ca. . tronator , ( from trona , i. statera ) an officer in the city of london , who weighs the wool that is brought thither . see his oath in the book of oathes , fo . . trover , ( fr. trouver , i. invenire ) is the name of an action , which a man hath against one , who , having found any of his goods , refuseth to deliver them upon demand . see new book of entries , verbo trover . actions of detinue are of late much turned into actions upon the case , sur trover & conversion . preface to rolls abridgment . troy-weight , ( pondus troiae ) see weight . trug. — tres trugge frumenti vel avenae faciunt bushels infra prebendam de hunderton in ecclesia heref. ms. de temp . e. . and , at lempster at this day the vicar has trug corn allow'd him for officiating at some chappels of ease , ( as stoke and dorklay ) within that parish ; haply it may come from the sax. trog , which signifies a great hollow vessel , or trough . tumbrel , ( tumbrellum , turbichetum , ) is an engine of punishment , which ought to be in every liberty that has view of frankpledge , for the correction and cooling of scoldes , and unquiet women , kitchin , fo . . see cucking-stool . item , si aliquis , qui in libertatem nostram , per assensum & consensum comburgensium nostrorum , admissus fuerit , fecerit aliquod delictum , per quod ad penam publicam seu vile judicium , ut ad collistrigium vel tumbrellum , vel aliquod aliud hujusmodi adjudicatus fuerit , pro perjuro reputabitur , & ipso facto amittet libertatem suam . ms. codex de ll. statutis & corfuetud . burgi villae mountgom . fo . . tun , is a measure of oyl or wine containing twelve score and twelve gallons , or four hogsheads , anno rich. . ca. . hen. . ca. . and car. . ca. . a tun of timber is solid feet ; a load . tun-greve , ( sax. tungeraefa , i. villae praepositus ) a reeve , or bailiff ; qui in villis ( & quae dicimus maneriis ) domini personam sustinet , ejusque vice omnia disponat & moderatur . spelman . tunnage , al. tonnage , ( tunnagium & tonnagium ) is a custom or impost due for merchandise brought or carried in tuns , and such like vessels , from or to other nations after a certain rate for every tun , an. edw. . ca. . — hen. . ca. . — ed. . ca. . — jac. ca. . & car. . ca. . it is sometimes used for a duty due to the mariners for unloading their ship , arrived in any havens , after the rate of so much a tun. tunnage and poundage began in the th of edward the third . cottoni posthuma , fo . . see inst . fo . . turbary , ( turbaria , from turba , a turf ) is a right or interest to dig turves on another mans ground , kitchin , fo . . and , common of turbary is a liberty which some tenants have by prescription to dig turves on the lords waste . turbaria is sometimes also taken for the ground where turves are digged . turn , ( turnum ) is the sheriffs court , kept twice every year , viz. within a moneth after easter , and michaclmas . mag. charta , ca. . & edw. . ca. . from this court are exempt onely arch-bishops , bishops , abbots , priors , earls , barons , all religious men and women , and all such as have hundreds of their own to be kept . anno hen. . ca. . britton , ( ca. . ) calls it tour , ( i. ambitus , circuitus . ) it is a court of record in all things that pertain to it , it is the kings leet through all the county , and the sheriff is judge , and this court is incident to his office. see cromp. jur. fo . . and inst . fo . . turney or tournement ( fr. tourney , i. decursorium ) signifies a martial exercise of knights or gentlemen fighting on horseback one with another in disport , and is thus defined , torneamenta dicuntur nundinae vel feriae , in quibus milites ex condicto convenire , & ad ostentationem virium suarum & audaciae , temere congredi solent . this word is used in the statute hen. . ca. . but , the thing it self is now disused . turno vicecomitum , is a writ that lies for those that are called to the sheriffs turn out of their own hundred , reg. of writs , fo . . twaite , signifies a wood grubbed up , and turned to arable . coke on litt. fo . . b. twa nights geste , ( hospes duarum noctium ) if he did harm to any , his host was not answerable for it , but himself . hoveden , parte poster . fo . . b. see third-nights-awn-hine . twelve men , ( duodecim homines legales , ) otherwise called the jury , or enquest , is a number of twelve persons , or upwards to twenty four , by whose oath , as to matters of fact , all trials pass both in civil and criminal causes , through all courts of the common law in this realm . in civil causes , when proof is made of the matter in question , the point of the fact ( on which they are to give their verdict ) is deliver'd likewise to them , which we call the issue , then they are put in mind of their oath , to do right , and are , by the judges , summing up the evidence , sent out of the court , by themselves to consider upon the evidence on both sides , untill they are agreed : which done , they return to the court , and deliver their verdict by the mouth of their foreman ; according to which ( if the matter be not arrested , or staid by the discretion of the judge or the court , ) the judgment passeth . in causes criminal there are two sorts of enquests , one called the grand enquest , the other the enquest of life and death ; the first is so called , either because it consists of sixteen at the least , or else because all causes criminal or penal first pass through them ; whereas the other enquest is especially appointed for one or few matters touching life and death . those of the grand enquest are called by bracton , milites ; because they were wont to be knights , if so many could be had . and their function is to receive all presentments of any offence , and accordingly to give their general opinion of them , by writing either these words billa vera upon the bill of presentment , which is an inditement of the party presented , or else ignoramus , which is a doubting of the fact presented . of this read more in inditement , assise , jury . see the statute hen. . ca. . & ejusdem , ca. . — ed. . ca. . & eliz. ca. . tymber of skins , is skins . book of rates , fo . . tympeny . abbas & monachi rading . — sint quieti de tributis & lastagiis & stallagiis de thething-peny & tympeny , de summonitionibus de assisis & super assisis , &c. in memorand . scacc. de anno ed. . in t . record . de trin. rot. . i find it elsewhere written tinpeny . mon. angl. par. fo . . a. quaere . u. vacation , ( vacatio ) is all the time respectively , betwixt the end of every term and beginning of the next ; when such times began and ended in our ancestors dayes . see hovedens annals , par post . fo . . a. where you shall find that this intermission was called pax dei & ecclesiae . also the time from the death of a bishop or other spiritual person , till the bishoprick , or other dignity be supplyed with another , is called vacation . westm . . ca. . & edw. . ca. . & . see plenarty . uaccarie , alias uaccharie , ( vaccaria , al. vaccharia , and vacheria ) is a house or place to keep cowes in . fleta , lib. . ca. . domus sive locus quo vaccae aluntur , vel quo negotium quod ad eos attinet perficitur . spelm. a dairy-house . without warrant no subject may have a vaccary within the forrest , crom. jur. fo . . but , in the stat. hen. . ca. . vacchary seems to be a special name of a certain compass of ground within the forest of ashdown . uaga . see waga . uagabond , ( vagabundus ) one that wanders about , and has no certain dwelling , an idle fellow . rogues , vagabonds , and sturdy beggars , mentioned in divers statutes . — de vagabundis & aliis hominibus mendicantibus qui se nominant , travelyng-men , &c. charta , hen. . m. . n. . item utimur , quod nullus vagabundus vagetur seu deambulet de nocte in villa seu suburbio ejusdem post pulsationem campanae nostrae communis , vocatae coverfu , et si aliquis ibidem capiatur post pulsationem dictae campanae ducatur ad gaolam domini regis , & ibi morabitur usque in crastinum . ut noticia personae suae habeatur , & emendas faciet ad voluntatem balivorum & comburgensium , & per balivos capitales liberetur , si hoc petat . ms. codex de legibus & statutis burgi-villae mountgomer . a tempore , hen. . ualect , ualet , or uadelect , ( valettus vel valecta . qui juxta dominum vadit seu ministrat . fr ▪ valet . ) a servitor , or gentleman of the privy-chamber , according to cambden . in the accounts of the inner-temple it is used for a benchers clerk , or servant ; the butlers of the house corruptly call them varlets . in reg. of writs , . b. valettus . if the sheriff be a vadelect of the crown , &c. coke on lit. fo . . sciant — quod ego henricus comes lancastriae & leicestr . senescallus angliae dendimus — dilecto valetto nostro johanni le blount novem acras terrae cum pertin . in holland in foresta nostra de duffeld , &c. dat. apud hegham ferrers die junii ed. . penes wal. kirkham blount bar. valet was anciently a name specially denoting young gentlemen , though of great descent or quality , but now given to those of the rank of yeomen . seldens titles of honour , fo . . ualue , ( valentia , valor ) is a known word ; but , west gives us a nice difference betwixt value and price . — the value , sayes he , of those things , in which offences are committed , is usually comprized in inditements , which seems necessary in theft , to make a difference from petit larceny , and in trespass to aggravate the fault , and increase the fine : but , no price of things ferae naturae may be expressed , as of deer , hares , &c. if they be not in parks and warrens , which is a liberty . anno ed. . fo . . nor of charters of land. and , where the number of the things taken are to be express'd in the inditement , as of young doves in a dove-house , there must be said pretii , or ad valentiam ; but , of divers dead things , ad valentiam , and not pretii . of coin not current , it shall be pretii , but of coin current it ▪ shall neither be said pretii , nor ad valentiam , for the price and value thereof is certain , &c. par. . symbol . tit . inditements . sect. . v. w. ualor of marriage , ( valore maritagii ) was a writ that lay for the lord , having profer'd covenable marriage to the infant , and he refusing it , to recover the value of the marriage . old. nat. br. fo . . but taken away by the statute car. . ca. . uantarius , praecursor . as vantarius regis , the kings fore-foot-man . richardus rockesle , miles tenebat terras seatoniae per scriantiam esse vantarium regis in gascoign , donec perusus fuit pari solutarum precii d. i. dum trivisset par calceorum pretii d. rot. de finibus . term. mich. ed. . uariance , ( from the fr. varier , i. alterare ▪ ) signifies an alteration or change of condition , after a thing done . as , the commonalty of a town make a composition with an abbot , and after obtain bailiffs by grant from the king. in this case , if the abbot commence any sute for breach of the composition , he must vary from the word commonalty set down in the composition , and use bailiffs and commonalty . brook , tit . variance , fo . . it is also used for an alteration of something formerly laid in a plea. see variance in the new book of entries . uarlets , by a repealed statute of rich. . cap. . were used for yomen , or yomen-servants . see valects , and the statute car. . ca. . will. hunt varlet del chambre nostre seigneur le roy. claus . rich. . m. . in dorso . uaslet , ( vaslettus ) — concordia inter regem & radulphum de normanvil , viz. quod rad. tenebit in servitio regis geroldum & radulphum milites , filios suos , quamdiu guerra sua duraverit , per sic , quod rex ei remittat cc. marcas quas debebant regi johanni de fine pro redemptione dicti geroldi , & per sic deberetur ; thomas filius dicti radulphi vaslettus in custodia regis , qui similiter morabatur in servitio regis cum praedictis geroldo & radulpho fratribus suis . pat. hen. . in dorso m. . it seems here to signifie a ward . see valect . uassal , ( vassallus , ) from the germ. gessel . i. comes qui mercede servit ) signifies him that holds land in fee of his lord , we call him more usually a tenant in fee , whereof some owe fidelity and service , and are called vasalli jurati . but , the word being little used in our law books , make me waive that enlargement which cowel makes upon it . uasto , is a writ that lies for the heir against the tenant for life or years , for making waste , or for him in the reversion or remainder . fitz. nat. br. fo . see the statute ed. . ca. . uavasor , alias ualvasor , is one who in dignity is next a baron . cambd. brit. pa. . — bracton , lib. . ea . . sayes thus of them — sunt & alii potentes sub rege , qui dicuntur barones , hoc est , robur belli ; sunt & alii qui dicuntur vavasores , viri magnae dignitatis : vavasor enim , nihil melius dici poterit , quam vas sortitum ad valetudinem . — rex , &c. ballivis petri de pratellis de insula gerse & gernse , &c. volumus — quod episcopi , abbates , abbatissae , clerici , milites , vavassores , & alii qui redditus & tenementa habent in insula gersey , &c. quintam partem reddituum suorum unius anni , &c. praebeant ad sustentandum milites & servientes qui praedictas insulas defendunt . pat. joh. m. . see more of these in the learned spelmans gloss . uavasorie ( vavasoria ) the lands that a vavasor held — quod dicitur de baronia non est observandum in vavasoria , vel aliis minoribus feodis quam baronia , quia caput non habent sicut baronia . bract. lib. . cap. . ueal-money , or ueal noble money , the tenants of one of the tithings within the mannor of bradford in com. wilts , pay a yearly rent by this name to their lord , the marquess of winchester , which is in lieu of veal paid formerly in kinde . uejours ( visores , from the fr. veoir , i. cernere , intueri ) are those that are sent by the court to take view of any place in question , for the better decision of the right . old nat. br. fol. . so bracton uses it , lib. . tract . . cap. . it signifies also those that are sent to view such as essoign themselves de malo lecti , whether they are in truth so sick , as they cannot appear , or whether they counterfeit . bracton , lib. . tract . . cap. . & . lastly , it is used for those that are sent or appointed to view an offence , as a man murdered , or a virgin ravished . see view . uenditioni exponas , is a writ judicial , directed to the under-sheriff commanding him to sell goods , which he hath formerly , by commandment , taken into his hands for the satisfying a judgment given in the kings court. reg. judie . fol. . and anno car. . cap. . uenire facias , is a writ judicial , going out of the record , and lies where two parties plead , and come to issue ; for then the party plaintiff or defendant , shall have this writ directed to the sheriff , to cause twelve men of the same county to say the truth upon the issue taken : and if the enquest come not at the day of this writ returned , then shall go a habeas corpora , and after a distress , until they come . old nat. br. fol. . see how diversly this writ is used in the table of the register judicial . there is also a writ of this name , that is original , as appears in the reg. of writs , fol. . which lambert in his processes annexed to his eiren. says , is the common process upon any presentment , not being felony , nor specially appointed for the fault presented by statute , whereof he sets down an example in the same place . see also the new book of entries , verbo , enquest , fol. . and the stat. hen. . cap. . uenire facias tot matronas . see ventre inspiciendo , and lamb. eiren. lib. . cap. . pag. . uentre inspiciendo , is a writ for the search of a woman , that says she is with childe , and thereby withholds land from him that is next heir at law. register of writs , fol. . a. uenue or uenew ( vicinetum al. visnetum ) is taken for a neighboring or near place , locus quem vicini , habitant . for example , twelve of the assise ought to be of the same venew , where the demand is made . old nat. br. fol. . anno hen. . cap. . and hen. . cap. . — and also shall return in every such panel upon the venire facias , six sufficient hundreders , at the least , if there be so many within the hundred , where the venue lies . see visne . uerd . see vert. uerderor ( viridarius , fr. verdeur , i. custos nemoris ) is a judicial officer of the kings forest , chosen by the kings writ in the full county of the same shire , within the forest where he dwells , and is sworn to maintain and keep the assises of the forest , and to view , receive , and enrol the attachments and presentments of all manner of trespasses of vert and venison in the forest . manwood , par . . pag. . his office is properly to look to the vert , and see it be well maintained . cromp. jurisd . fol. . his oath , fee , and authority , see in manwood supra , and fol. . uerdict ( verdictum , quasi dictum veritatis ) is the answer of a jury or enquest made upon any cause , civil , or criminal , committed by the court to their tryal ; which is twofold , general or special . stamf. pl. cor. lib. . cap. . a general verdict , is that , which is given or brought into the court in like general terms to the general issue ; as in an action of disseisin , the defendant pleads , no wrong , no disseisin : then the issue is general , whether the fact be a wrong or not , which being committed to the jury , they , upon consideration of their evidence , come in and say , either for the plaintiff , that it is a wrong and disseisin , or for the defendant , that it is no wrong , no disseisin . a special verdict , is , when they say at large , that such a thing , and such they finde to be done by the defendant or tenant , so declaring the course of the fact , as in their opinion it is proved , and as to the law upon the fact , they pray the judgment of the court. and this special verdict , if it contain any ample declaration of the cause ; from the beginning to the end , is also called a verdict at large ; whereof read divers examples in stamf. ubi supra . new book of entries , verbo , verdict . and coke on littl. fol. . a. item utimnr , quod balivi & coronatores burgi nostri usi fuerint & adhuc utuntur recipere veredictum duodecim juratorum ex quacunque causa infra burgum nostrum praedictum seu ejus libertatem emergenti sive contingenti , senesealli praesentia nullo modo expectata . ms. codex de ll. & statutis burgi-villae mountgomer . fol. . uerge ( virgata ) is used for the compass of the kings court , which bounds the jurisdiction of the lord steward of the kings houshold , and of the coroner of the kings house , and that seems to have been twelve miles compass , anno rich. . stat . . cap. . britton , fol. . & . cokes rep. lib. . fol. . see the stat. hen. . cap. . fleta ( lib. . cap. . sect . ) says , this compass about the court is called virgata , a virga , quam marishallus portat ut signum suae potestatis . verge is also used for a stick or rod , whereby one is admitted tenant , and , holding it in his hand , swears fealty , to the lord of a mannor , who is therefore called tenant by the verge . old nat. br. fol. . uerge of land ( anno edw. statute of wards ) virgata terrae . see yard-land . uergers ( virgatores ) are such as carry white wands before the justices of either bench , &c. fleta , lib. . cap. . otherwise called porters of the verge . uery lord , and very tenant ( verus dominus , & verus tenens ) are those that are immediate lord and tenant one to another . brook , tit . hariot , fol. . in old nat. br. fol. . you have these words — and know ye that in taking of leases , six things are necessary , viz. very lord , and very tenant . service behinde ; the day of the taking ; seisin of the services and within his fee. and , that a man is not very tenant , until he have atturned to the lord by some service . see anno hen. . cap. . and see tenant . uert ( fr. verd , i. viridis ) otherwise called greenhue , signifies in the forest laws , every thing that grows and bears green leaf within the forest , that may cover a deer . manwood , part. fol. . & . vert is divided into over vert , and neather vert. over vert is that which our law-books call hault bois , and neather vert , south-bois . and of this you may read manwood , par . cap. . per totum . vert is also sometimes taken for that power which a man hath by the kings grant to cut green wood in the forest . see inst . fol. . uervise , otherwise called plonkets . anno rich. . cap. . a kinde of cloth. uesses . anno rich. . cap. . and anno & hen. . cap. . otherwise called set cloaths , most commonly made in suffolk . uest ( vestire ) plenam possessionem terrae vel praedii tradere ; saisinam dare , infeodare . says spelman . uestry-men ( anno car. . cap. . ) are a select number of the cheif parishioners of every parish within the city of london , and suburbs , and elswhere , who yearly chuse officers for the parish , and take care of its concernments , so called , because they usually meet in the vestry of the church . uesture ( vesturd ▪ signifies a garment , but we turn it metaphorically to betoken a possession , or an admittance to a possession , or seisin : so is it taken in westm . . cap. . and in this signification it is borrowed from the feudists , with whom investitara , imports a delivery of possession by a spear or staff , and vestura , possession it self . hottoman , verbo , investitura . vestura terrae , i. segetes quibus terra vestitur . ms. uesture of an acre of land ( anno edw. . stat . . is the profit of it . so in extenta manerii edw. . it is inquirable , how much the vesture of an acre is worth , and how much the land is worth , when the wood is felled . uetitum namium , namium signifies a taking or distress , and vetitum , forbidden ; as when the bailiff of a lord distrains beasts or goods , and the lord forbids his bailiff to deliver them , when the sheriff comes to replevy them , and to that end , drives them to places unknown ; or when , without any words , they are so eloigned , as they cannot be replevied . divers lords of hundreds , and court barons have power to hold plea de vetito namio , in old books called de vet. inst . fol. . sir henry spelman says it is antiqua juris nostri locutio , & brevis regis nomen . see naam . uicario deliberando occasione cujusdam recognitionis , &c. is a writ that lies for a spiritual person , imprisoned upon forfeiture of a recognisance , without the kings writ . reg. of writs , fol. . uicis & venellis mundandis , is a writ that lies against a major or bailiffs of a town , &c. for the clean keeping their streets . reg. of writs , fol. . b. uicar ( vicarius ) the priest of every parish is called rector , unless the predial tithes be impropriated , and then he is called vicar , quasi vice fungens rectoris . sciant — quod ego johannes webbe perpetuus vicarius ecclesiae parochialis de bromyord dedi — domino david hay perpetuo vicario ecclesiae parochialis de anenebury duas acras terrae , &c. dat. hen. . they stiled themselves perpetui vicarii , because every vicaridge hath a constant succession , as a corporation , and never dies . the canonists mention four species of vicars : quidam sunt perpetui , ad parochiales ecclesias constituti ; quidam non perpetui , sed ad aliquos actus constituti , ut temporales ; & isti dicuntur , mercenarii : quidam sunt speciales , non ad curam , sed ad certum locum , articulum vel actum constituti : quidam nec perpetui , nec ad curam , nec ad certum actum , sed generaliter dantur ad omnia . see vocab . utriusque juris , verbo vicarius . uice-chamberlain , called under-chamberlain ( anno rich. . stat . . cap. . ) is a great officer in court , next under the lord chamberlain , and in his absence hath the command and controlment of all officers whatsoever , appertaining to that part of his majesties houshold , which is called the chamber , or above stairs . uicegerent ( anno hen. . cap. . ) a deputy or lieutenant . uicinage ( fr. voisinage ) neighborhood , nearness . mag. char. cap. . see venue . uicinetum . see visne . uicount alias uiscount ( vicecomes ) signifies as much as sheriff : between which two words , i finde no other difference , but that the one comes from our conquerors the normans , the other from our ancestors the saxons , of which , see more in sheriff . vicount also signifies a degree of nobility next to an earl , which camden ( britan. pag. . ) says , is an old name of office , but a new one of dignity , never heard of among us till henry the sixths dayes , who , in his eighteenth year , in parliament created john lord beaumont , viscount beaumont , but far more ancient in other countries . cassan . de gloria mundi , par . . consider . . see sheriff . and seldens titles of honor , fo . . uicountiels , ( vicecomitilia ) are certain ferms , for which the sheriff pays a rent to the king , and makes what profit he can of them . v. stat. . & hen. . ca. . — & ed. . ca. . & hen. . ca. . writs vicountiel are such writs as are triable in the county , or sheriffs court. old nat. br. fo . . of which kind you may see divers writs of nusance set down by fitzh . in his nat. br. fo . . b. see anno rich. . ca. . uicountiel rents , mentioned car. . ca. . see vicountiels . uidimus , ( anno hen. . ca. . ) see innotescimus . uiew , ( fr. veue , i. visus , conspectus ) signifies the act of viewers : for , when any action real is brought , and the tenant knows not well what land it is that the demandant asks , then he may pray the view , which is , that he may see the land which is claimed , of this britton writes , ca. . this course of proceeding we received from the normans , as appears by the grand custumary , ca. . and . this view is used , as in other cases , so in an assise of rent-service , rent charge , or rent seck . fitz. nat. brev. fo . . and in a writ de curia claudenda . idem , fo . . in a writ of nusance , idem . fo . . in a writ quo jure . idem , fo . . in the writ de rationabilibus divisis . idem , fv . . and , in the writ de secta ad molendinum . idem , fo . . see the new book of entries , verbo , view , and , how this view is made , in fleta , lib. . ca. . see veiours , and westm . . ca. . uiew of frankpledge , ( visus franci plegii ) is the office which the sheriff in his county court , or the bailiff in his hundred performs , in looking to the kings peace , and seeing that every man be in some pledge . this is called by bracton , res quasi sacra , quia solam personam regis respicit , & introducta pro pace & communi utilitate , lib. . ca. . num . . see frankpledge , leet & decennier . see new book of entries on this word . ui laica removendo , is a writ that lies for the removing a forcible possession of a benefice , kept by lay-men ; and is sometimes granted upon the certificate of the bishop into the chancery , that there is such a force in his diocess ; sometimes onely upon a surmise thereof made by the ineumbent himself , and has a several form for either case . fitz. nat. brev. fo . . reg. of writs , fo . & . uigil , ( vigilia ) anno & ed. . ca. . is used for the eve or day next before any solemn feast ; because then christians of old were wont to watch , fast and pray in their churches . uill , ( villa ) is taken for a mannor , and sometimes for a parish , or part of it . villa , apud saxones nostros antiquos romano sensu accipi videtur , pro praedio unius alicujus in rure , cum idoneis aedibus ad reponendos cjusdem fructus honestato . non autem primitus pro multarum mansionum connexione , quod in oppidis potius expetendum esset , & successivis temporibus villis postea introductum est . spelman . vill and parish shall be intended all one , part crokes rep. wreys case , fo . . yet there may be two vills in one parish , idem , fo . . storks case . uillain , ( villanus ) fr. vilain , i. illiberalis , vilis , impurus ) signifies a bondman ; of which there were two sorts in england , one termed a villain in gross , who was immediately bound to the person of his lord and his heirs ; the other a villain regardant to a mannor , whom the civilians term glebae adscriptitium , being bound to their lord , as members belonging to , and annexed to a mannor , whereof the lord was owner . sir thomas smith repub. angl. lib. . ca. . old. nat. br. fo . . & bracton , lib. . ca. . num . . he was properly a pure villain , of whom the lord took redemption to marry his daughter , and to make him free , and whom the lord might put out of his lands and tenements , goods and chattels at his will , and beat and chastise , but not maim him . there are not properly any villains now , though the law concerning them stands un-repealed ; we have rarely heard of any case of villenage , since crouches case in dyer . see preface to rolls abridgment . servorum enim & nativorum apud nos sublata est conditio ; & quas ideo possidebant terras vel praedia , hodie libere tenent sub antiquae servitutis consuetudinibus . spel. omnibus — frater mathaeus abbas de halesoweign & conventus ejusdem loci salutem . noveritis nos unanima voluntate & concensu fecisse johannem del grene de rug eakur liberum , cum tota sequela sua procreata & procreanda , & cum omnibus catallis suis habitis & habendis . ita vero quod praefatus johannes , cum tota sequela sua procreata & procreanda & cum omnibus catallis suis habitis & habendis , ab omni jugo servitutis liberi maneant imperpetuum . in cujus ●ei testimonium huic literae libertatis sigillum nostrum apposuimus . dat. ed. . ex ipso autographo penes johannem winsord mil. uillanis regis subtructis reducendis , was a writ that lay for the soringing back of the kings bondmen , that had been carryed away by others out of his mannors , whereto they belonged . reg. of writs , fo . . b. uillanous judgment , ( villanum judicium ) is that which casts the reproach of villany and shame upon him against whom it is given , as a conspirator , &c. stamf. pl. cor. lib. . ca. . fo . . which lam. in his eiren. ( lib. . ca. . pa. . ) calls villanous punishment , and sayes , it may well be called villanous , because the judgment in such a case , shall be like the ancient judgment in attaint ( as it is said anno hen. . fitz. judgment , ) and ( in lib. assis . pl. . ) is set down to be , that they shall not be of any credit afterward , nor lawful for them in person to approach the kings court , and that their lands and goods be seised into the kings hands , their trees rooted up , and their bodies imprisoned , &c. and , at this day , the punishment appointed for perjury , ( having somewhat more in it then corporal , or pecuniary pain , strotching to the discrediting the testimony of the offendor for ever ) may be partaker of this name . this and such like is elsewhere termed vile & odibile judicium . see pillory . uillein fleeces , ( anno edw. ca. . ) are bad fleeces of wool , that are shorn from scabb'd sheep . uillenage , ( villenagium ) signifies a servile kind of tenure of lands or tenements , whereby the tenant was bound to do all such services as the lord commanded , or were fit for a villain to perform ; ubi sciri non poterit vespere , quale servitium fieri debet mane . bracton , lib. . ca. . num . . the division of villenage , was villain of blood , and of tenure . tenure in villenage could make no freeman villain , if it were not continued time out of mind ; nor free land make villain free . villenage is also divided by bracton ( ubi supra ) into purum villenagium a quo praestatur servitium incertum & indeterminatum , as above is said ; and villenagium soccagium , which was to carry the lords dung into his fields , to plow his ground at certain dayes , sow and reap his corn , &c. and even to empty his jakes , as the inhabitants of bickton were bound to do those of clun castle in shropshire , which was afterwards turned into a rent , now called bicton silver , and the villanous service excused . placita de banco a die pasche in dies , hen. . rot. berks. will . maynard , qui tenuit terras in heurst , cognoscit se esse villanum abbatis de abbendon , & tenere de eo in villenagio & per villanas consuetudines , viz. per servitium d. per annum & dandi maritagium & marchetum pro filia & sorore sua , ad voluntatem ipsius abbatis , & faciendo omnes villanas consuetudines . copyholders , or tenants by copy is but a new name ; for anciently they were called tenants in villenage , or of base tenure . fitz. nat. br. fo . . c. uinnet , ( anno car. . ca. . ) a kind of flower or border , with which printers use to garnish printed leaves . uirgata terrae , al. virga terrae . a yard-land . ms. codex . — decem acrae terrae faciunt secundum antiquam consuetudinem , unam ferdellam , & quatuor ferdellae faciunt virgatam . see yardland . uiridario eligendo , is a writ that lies for the choice of a verderor in the forest . reg. of writs , fo . . uirilia , a mans privy-members ; the cutting off of which was felony by the common-law , ( according to bracton , lib. . fo . . ) whether the party consented or not . henricus hall & a. uxor ejus capti & detenti in prisona de evilchester , eo quod rectati fuerint quod ipsi absciderunt virilia johannis monacbi , quem idem henricus deprehendit cum praedicta a. uxore ejus . rot. claus . . hen. . m. . uirga ferrea , — sciant — quod ego hamundus urri dedi — nich. filio edde pro viii . sterlingis quos mihi dedit prae manibus , unam placetam terrae meae in vico versus dustelee , quae jacet inter terram meam & terram philipp● fili● heylin , cujus latitudo in fronte continet in se xvi virgas ferreas praeter unum quarterium , & totidem aretro , &c. ex libro cart. prior. leominstr . this was so many yards , according to the kings standard in the exchequer , which anciently was of iron , now brass . uisitation , ( visitatio ) is that office or action which is perform'd by the bishop in every diocess once in every three years , or by the arch-deacon once a year , by visiting the churches , and their rectors , &c. — ut populus illorum curae commissus salubriter a pastoribus & ordine gubernetur . reform . leg. eccles . fo . . ne quid detrimenti capiat ecclesia , sayes another author . uisitation of manners , ( visitatio morum ) was wont to be the name of the regarders office in ancient time . manwood , par. . pa. . see regarder . uisne , ( vicinetum ) signifies a neighbour-place , or a place near at hand . anno rich. . ca. . dicitur vicinetum in jure nostro locus quem vicini habitant , qui olim intelligebantur de eadem villa sive adjacentibus , atque alias de eodem hundredo vel proximit ; modo vero de eodem pago , sive comitatu , 〈◊〉 hoc est compagenses . spelm. see venew . uisu franciplegii , is a writ , to exempt him from coming to the view of frankpledge , who is not resident within the hundred ; for men are bound to this view , by reason of their habitation , and not of lands held where they dwell not . reg. of writs , fo . . uitteller alias uictualer ( victualarius al. vitellarius ) is he that sells victuals ; for whom there is a writ in fitz. nat. br. fol. . if they exercise their trade , bearing a magistracy in any town corporate . uiva pecunia , anciently used for live cattle . see pecunia . uiva voce . see deposition . uivary ( vivarium ) signifies a place on land , or water , where living things are kept . in law it most commonly signifies a park , warren , fish-pond , or piscary . cokes second part inst . fol. . haec est conventio inter priorem & conventum canonicorum de rudham & rogerum de glanvilla , de molendino & stagno de thorp , sc . quod canonici reddent annuatim praefato rogero sol . quemadmodum pater ejus robertus de glanvilla solebat habere tempore michaelis prioris ; & si rogerus de glanvilla fuerit in ructon vel uxor ejus , ipse poterit piscari in vivario absque wasto cum batello canonicorum , &c. anno . maii. m. s. penes gul. dugdale arm. ulnage . see alnage . uncore prists , is a plea for the defendant , being sued for a debt due at a day past , to save the forfeiture of his bond ; saying , he tendred the debt at the time and place , and that there was none to receive it , and that he is yet also ready to pay the same . edw. . dyer . see unques prist . uncuth ( sax. ) unknown . it is used in the ancient saxon laws , for him that comes to an inn guest-wise , and lies there but one night ; in which case his host was not bound to answer for any offence he committed , whereof he was guiltless himself . see lamb. archai . fol. . num . . — item secundum antiquam consuctudinem dici poterit de familia alicujus , qui hospes fuerit cum alio per tres noctes ; quia prima nocte poterit dici uncuth secunda vero gust , tertia nocte hoghenehine . bracton , lib. . cap. . num . . see thirdnightawnhine . unde nihil habet , is a writ . see dote unde nihil habet . under-chamberlain of the exchequer , is an officer there , that cleaves the tallies , written by the clerk of the tallies , and reads the same , that the clerk of the pell , and the comptrollers thereof may see their entries be true ; he also makes searches for all records in the treasury , and hath the custody of domesday book . there are two officers there of this name . under sheriff . ( subvicecomes . ) see sheriff . under sitter , is an inmate . see inmate . undertakers , were such as were employed by the kings purveyors as their deputies . anno & phil. & ma. cap. . and such as undertake any great work , as draining of fens , &c. anno eliz. cap. . under treasurer of england . ( vicethesaurarius angliae ) anno eliz. cap. . this officer is confounded in other statutes with treasurer of the exchequer , as in eliz. in the vacancy of the lord treasurers office , he does all things in the receipt that the lord treasurer doth . anciently he did chest up the kings treasure at the end of every term , and note the content of money in each chest , and see it carried to the kings treasury in the tower , for the ease of the lord treasurer , &c. uniformity ( uniformitas ) one form of publick prayers and administration of sacraments , and other rites and ceremonies in the church of england ; prescribed by the statutes eliz. cap. . and car. . cap. . union ( unio ) is a combining or consolidating of two churches in one , which is done by the consent of the bishop , the patron and incumbent : but there are two other sorts of it ; as when one church is made subject to the other , and when one man is made rector of both , and when a conventual is made cathedral , as you may read in the gloss of the chapter , licet de locato & conducto , in lyndwoods provincials , sect. et quia — in the first signification , by the statute hen. . cap. . it was made lawful to make an union or consolidation of two churches in one , whereof the value of the one is not above six pounds in the kings books of the first fruits , and not above one mile distant from the other . and by another statute car. . cap. . it shall be lawful for the bishop of the diocess , major , bailiff , &c. of any city or corporate town , and the patron or patrons , to unite two churches or chappels in any such city , town , or the liberties thereof ; provided such union shall not be good , if the churches so united exceed the sum of one hundred pound per annum , unless the parishioners desire otherwise , &c. unity of possession , signifies a joynt-possession of two rights by several titles ; as , if i take a lease of land from one upon a certain rent , afterwards i buy the fee-simple ; this is an unity of possession , whereby the lease is extinguished , by reason that i , who had before the occupation onely for my rent , am become lord of the same , and am to pay my rent to none but my self . university ( universitas ) is most usually taken for those two bodies , which are the nurseries of learning and liberal sciences in this realm , oxford and cambridge , endowed with great favors and priviledges , as appears not onely by anno & ph. & mar. cap. . — eliz. cap. . & ejusdem , cap. . but much more by their several charters , granted by divers pious and munificent kings of this land. anno car. . cap. . unlage ( sax. un-laga ) a wicked or unjust law. in which sence the word occurs in ll. hen. . cap. . . unlawful assembly ( illicita congregatio ) is the meeting of three or more persons together , with force to commit some unlawful act , and abiding together , though not endeavoring the execution of it , as to assault or beat any person , to enter into his house or land , &c. west , par . . symbol . tit . indictments , sect . . lambert in his eiren. cap. . by the statute of car. . cap. . and ejusdem , cap. . if five persons or more shall be assembled together above those of the family , at any conventicle or meeting , under colour of any exercise of religion , it is unlawful and punishable by fines , and otherwise , as in the said statute is expressed . unques prist ( i. always ready ) is a plea whereby a man professeth himself always ready to do , or perform that , which the demandant requires . for example , a woman sues the tenant for her dower , and he , coming in at the first day , offers to aver , that he was always ready , and still is to perform it . in this case , except the demandant will aver the contrary , he shall recover no damages . when this plea will serve to avoid charges , and when not , see kitchin , fol . see uncore prist . uoidance ( vacatio ) is a want of an incumbent upon a benefice , which is twofold ; either in law , as when a man hath more benefices incompatible ; or in deed , as when the incumbent is dead , or actually deprived . brook , tit . quare impedit . num . . uolumus , is the first word of a clause in the kings writs of protection and letters patent . anno rich. . cap. . and ejusdem , cap. . of protections some are cum clausula volumus ; and of these there are four kindes , viz. . quia profeoturus . . quia moraturus . . quia indebitatus nobis existit . . when any one , sent into the kings service beyond sea in war , is imprisoned . coke on littl. sect . . uoucher ( vocans ) is a word of art , and is in the understanding of law , when the tenant calls ano●●er into the court that is bound to him to war anty , and that is either to defend the righ● against the demandant , or to yield him other lands , &c in value ; and extends to lands or tenements of freehold , or inheritance , and not to any chattel real , personal , or mixt , &c. he that voucheth is called the voucher ( vocans ) and he that is vouched is called vouchee , ( warrantus . ) the process whereby the vouchee is called , is a summone as ad warrantizandum , &c. a recovery with a single voucher is , when there is but one voucher ; and with a double voucher , is when the vouchee voucheth over , and so a treble voucher . there is also a foreign voucher , when the tenant being impleaded within a particular jurisdiction ( as in london , or the like ) voucheth one to warranty , and prays , that he may be summoned in some other county out of the jurisdiction of that court ; which might more aptly be called a voucher of a foreigner , de forinsecis vocatis ad warrantisandum . coke on littl. fol. . b. see recovery . voucher , is also used in the statute ( car. . cap. . ) for a lieger book or book of accompt , wherein are entred the acquittances or warrants for the accomptants discharge . upland ( uplanda ) high ground , or as some call it terra firma , contrary to moorish , marsh , or low ground . — duramque terram novem miliariis per aquam , de uplanda , id est de superiori terra , schaphis deferri , & paludibus commisceri jussit . ingulp● . hist . croyland . usage . see prescription . use ( usus ) a deed consists of two principal parts , namely , the premisses , and the consequents . the premisses is the former part of it , being all that which precedeth the habendum , or limitation of the estate , which are the persons contracting , and the thing contracted . the consequent is the habendum , in which are two limitations ; the one , of the estate or property which the party passive shall receive by the deed ; the other of the use , which is , to express in the said habendum to , or for what use and benefit he have the same estate . and of the limitation such uses , you may read many presidents in 〈◊〉 lib. . par . . sect . . these uses were in 〈…〉 ted upon the statute of westm . . quia emptor● terrarum , before which statute , no such uses we 〈…〉 known . and because in time many deceits were 〈◊〉 〈◊〉 ed , by setling the possession in one man , and the use in another , anno hen. . cap. . it was enacted , that the use and possession of lands should always stand united . see coke , lib. . chudleys case . user de action , is the pursuing or bringing an action , in what place and county it ought to be . see brook , tit . lieu and county , fol. . usher ( fr. huissier , i. a door-keeper of a court ) is an officer in the exchequer , of which there are four that attend the cheif officers and barons at the court at westminster , and juries , sheriffs , and all other accomptants at the pleasure of the court. there are also ushers in the kings court , as of the privy chamber , &c. see blackrod . us●act . in privilegio de semplingham . — sint quieti tam ipsi quam homines eorum , &c. de omnibus misericordiis & amerciamentis & forisfacturis , &c. et de murdro & latrocinio & conceyles & us●act , & hamsoka , grithbrich , blotwit , &c. perhaps miswritten for utlage or utlagat . sed quare . in kelways report i finde hutlatch . usucaption ( usucaptio ) the enjoying a thing by continuance of time , or receiving the profits ; long possession or prescription . usufructuary ( usufructuarius ) one that hath the use , and reaps the profit of any thing . usury ( usura ) is money or money 's worth , given above the principal sum for the loan or it ; otherwise called interest or use . usura st commodum certum quod propter usum rei mutuatae accipitur . cokes rep. paytons case . by the stat. car. . cap. . no man must take above six pound for the forbearance of one hundred pound for a year , under the penalties therein contained . see cokes instit . fol. . by the stat. & hen. . it is called dry exchange . utas ( octava ) is the eighth day following any term or feast , as the utas of s. michael , the utas of s. hillary , &c. whereof you may read anno hen. . statute concerning general days in the bench. and any day within the feast , and the eighth day is said to be within the utas . the use of it is in the return of writs , as appears by the statute . at the utas of the holy trinity . preamble to the stat. edw . utensil ( fr. utensile ) any thing necessary for our use and occupation : housholdstuff . utfangthef ( sax. ut-fang-theof , i. fur extra captus , scil . extra dominium vel jurisdictionem ) is an ancient royalty or priviledge granted to the lord o● a mannot by the king , which gives him power to punish a theif , dwelling , and committing the 〈◊〉 of his liberty , if he be taken within 〈◊〉 fee. utfangthef dicitur extrancus lat 〈…〉 oeniens aliunde de terra aliena , & qui 〈◊〉 suit in terra ipsius , qui tales habet libertat 〈…〉 bracton , lib. . tract . . cap. . anno 〈…〉 . cap. . u 〈…〉 ( uthlagus ) an outlaw . — fuit qu 〈…〉 m uthlagus famosissimus , partes istas frequentans propter iter commeantium inter nottingham & derby per forestam . mon. angl. . par . fol. . a. see outlaw . utlagato capiendo quando utlagatur in uno comitatu & postea fugit in alium , is a writ , the nature whereof appears in the words of its name . see reg. of writs , fol. . utland ( sax. i. terra extera ) dicebatur terra servilis seu tenementalis , quod de procinctu terrarum dominicalium , quae inland nuncupatae sunt , in exteriorem agrum rejiciebantur . vide inland . utlary or utlawry ( utlagaria vel utlagatio ) is a punishment for him , who , being called into law , and lawfully sought , does ( after an original writ , with a nihil habet , three writs of capias , alias , and pluries , returned by the sheriff with a non est inventus , and an exigent with a proclamation thereupon awarded ) contemptuously refuse to appear . he must also be called at five county-court days , a moneth between each one ; and if he appear not within that time , pro exlege tenebitur , cum principi non obediat nec legi , & ex tunc utlagabitur , that is , he shall be pronounced to be out of the kings protection , and deprived of the benefit of the law : the effect of which is divers , for if he be outlawed at the sute of another in a civil cause , he shall forfeit all his goods and chattels to the king ; if upon felony , then all his lands and tenements which he hath in fee , or for life , and his goods and chattels . et tunc gerit caput lupinum , ita quod sine judiciali inquisitione rite pereat , & secum suum judicium portet , & merito sine lege pereat , qui secundum legem vivere recusavit , &c. says bracton , lib. . tract . . cap. . a minor or woman cannot be outlawed ; but where a man is termed outlawed , a woman is said to be waived . how an outlaw is inlawed again , and restored to the kings peace and protection . see bracton , lib. . tract . . cap. . and fleta , lib. . cap. . & . see outlaw . utlepe . significat escapium , hoc est , evasionem latronum ▪ fleta , lib. . cap. . and hen. . pat. . m. . utrum . see assise . utter barrasters ( jurisconsulti ) are such , who for their long study and great industry , bestowed upon the knowledge of the common law , are called out of their contemplation to practise , and in the view of the world to take upon them the protection and defence of clients . in other countreys they are called licenciati in jure . the time , before any one ought to be called to the bar , by the ancient orders , was heretofore eight years , now reduced to seven . and the exercise done by him ( if he were not called ex gratia ) was twelve grand moots , performed in the inns of chancery in the time of the grand readings , and twenty four petty moots at the inns of chancery in the term times , before the readers of the respective inns of chancery . a barraster newly called , is to attend the six next long vacations , the exercise of the house , viz. in lent and summer , and is thereupon for those three years called a vacation barraster . and they are called utter barrasters , i. pleaders without the bar , to distinguish them from benchers , or those who have been readers , who are sometimes admitted to plead within the bar , as the king , queen , or princes council are . w. waftors ( waftores ) edward the fourth constituted a triumvirate of officers with naval power , whom the patent ( edw. . membr . . ) stiles custodes , conductores , and waftores ; and these were cheifly to guard our fishermen on the coast of norfolk and suffolk . we still retain the word to waft over , i. to convey or conduct over sea. waga alias uaga , a weigh , which is a measure of cheese , wool , &c. contraining two hundred fifty six pound of averdupois , according to cowel ; for by the statute of hen. . cap. . a weigh of cheese ought to contain thirty two cloves , and the clove eight pound , though some say but seven . — unam wagam salis de salinis suis de terincton ▪ mon. angl. par . fol. . see weigh . wage ( vadiare , fr. gager ) signifies the giving security for the performance of any thing ; as to wage deliverance , which see in gage ; to wage law , see in law. none wageth law against the king. brook , tit . chose in action , num . . see coke on littl. fol. . b. tit. ley-gager . wager of law. see law. waif or weyf ( waivium ) or goods waived , are those which a theif hath stoln , and being pursued or over-charged with the burden , flies and leaves the goods behinde him : then the kings officer , or the bailiff of the lord of the mannor ( within whose jurisdiction they were left ) who ( by prescription or grant from the king , hath the franchise of waif ) may seise the goods to his lords use , except the owner come with fresh sute after the felon , and sue an appeal within a year and a day , or give in evidence against him at his arraignment , and he be attainted . in which cases , the owner shall have restitution of his goods , though waif is properly spoken of goods stoln , yet it may be also of goods not stoln ; as if a man be pursued with hue and cry , as a felon , and he flies and leaves his own goods , these shall be forfeit , as goods stoln ; and are properly called fugitives goods . see coke , lib. foxleys case . waifs , things lost and estrays must , by the lord of the franchise where they are found , be caused to be cried and published in markets and churches near about , else the year and day does not run to the prejudice of him that lost the m. briton . cap. . — plac. coram joh. de berewel & sociis suis justic . itin. apud salop. in octab. sancti michaelis ed. . rot. . in dorso . richardus fil . alani comes arundel summonitus fuit ad respondend . domino regi de placito quo warranto clamat habere placita coronae & habere wayf in manerio suo de upton subtus haweman , &c. in com. salop. et comes dicit quod ipse clamat habere infangenethef & wayf , & eadem placita & libertates habuerunt , ipse & omnes antecessores sui , & eisdem usi sunt a tempore quo non extat memoria & eo warranto clamat , &c. et hugo de lowther qui sequitur pro domino rege dicit quod wayf est quoddam grossum de corona , ita coronae domini regis annexum , quod nullus eo gaudere possit , nisi inde habeat speciale warrantum a domino rege vel antecessoribus suis concessum . weyf , i. si aliquis adduxerit aliqua animalia , ut oves , boves , equos & hujusmodi , vel aliquas alias res , & inde suspectus & arrestatus fuerit a balivis prioris donec probaverit per fideles homines , quod illae res furatae non fuerant , & ille dimissus non redierit : dictae res seu animalia servabuntur per unum annum & unum diem , & si ille non redierit & res suas esse probaverit , erunt prioris , &c. si aliquis alius venerit , & res suas legitime esse probaverit , datis expensis , illas habebit . ex registro prior. de cokesford . wainnable , that may be ploughed or manured , tillable . — dedimus — in loco qui vocatur shiplade la moreis , & la terre wainnable , & la bruere , &c. carta rogeri de scales . sine dat . wainage ( wainagium ) from the sax. ƿaeen , i. plaustrum , vehiculum . ) mag. char. cap. . — and any others uillain , then ours shall be likewise amerced , saving his wainage , if he fall into our mercy . sir edward coke ( part instit . fol. . ) says it signifies the contentment or countenance of the villain . but quaere whether it may not rather signifie , the furniture or appurtenances of the cart or wain , wherewith he was to do villain-service . see gainage and wannage . waitefée . tho. spelman , filius johannis , obiit marcii , eliz. & dicitur in inquisitione tenuisse manerium de narborough cum tertia parte advocationis ecclesia , &c. de domina regina , ut de manerio suo de wingrave per servitium militare , & per redditum s. pro waytefée & castlegarde , & valet clare per annum l. s. d. quadrantem . patet in schedula liberationis joh. spelman fratris sui , aug. eliz. perhaps a fee to excuse his waiting or giving attendance at the castle . waiviaria mulieris , is as much as vtlagatio viri . reg. of writs , fol. . many of the kings liege people outlawed , and many waived by erroneous process . anno hen. . cap. . see vtlary . wakeman ( sax. ) the chief magistrate of the town of rippon in yorkshire , so called ; quasi , watchman . cam. britan. wald ( walda ) see weald . walkers , are those who are otherwise called foresters . cromp. jurisd . fol. . there are foresters assigned by the king , who are walkers within a certain space of ground assigned to their care . wall or sea-wall ( walla vel wallia . ) see watergage . wallesheria or walecheria . — quod quatuor villatae propinquiores loco ubi casus homicidii vel infortunium contigerit , veniant ad proximum comitatum , una cum inventore & wallesheria , i. parentela hominis interfecti , & ibidem praesentent factum feloniae & casum infortunii , &c. reperio ( says spelman ) in nota quadam a. wallesheria , i. parentela interfecti , scilicet unus ex parte patris & alius ex parte matris . and concludes with — significat wallica pars ut videtur . wang ( sax. ) a field ; also the cheek or jaw , wherein the teeth are set . hence with chaucer we call the cheek-teeth or grinders wangs and wang-teeth , which is also notified in that old way of sealing writings . and in witness that this is sooth , i bite the wax with my wang tooth . see wong . wangenetheof — maneriolum de a. sit quietum de gelth & scoth de wreccho & de wangenetheof & danegueld , &c. , pat. h. . par . . m. . quaere . wannage ( wannagium ) — eodem anno ( scil . . ) rex angl. accepit de unaquaque carucata terrae sive hyda toti●s angliae sol. de auxilio , ad quos colligendos misit idem rex per singulos comitatus angliae unum clericum & etiam unum militem — qui fecerunt venire coram se senescallos baronum illius comitatus , qui juraverunt quot carucarum wannagia fuerint in singulis villis , &c. ipsi vero qui electi fuerant & constituti ad hoc negotium regis faciendum , statuerunt per estimationem legalium hominum , ad uniuscujusque carucae wannagium , centum acras terrae . hoveden . annal. par . poster . fol. . num . . see wainage . — quod ego h. & haeredes mei villas & aedisicia & wannagia ad libitum nostrum in terris praenominatis faciemus , & claudemus xl acras terrae ad excolendum vel ad tensandum , ad libitum nostrum . mon. angl. par . fol. . a. here wannagia seems to signifie wainhouses , or necessary out-houses for husbandry . wapentake ( sax. waepen-getace , i. arma tradere ) is all one with that we call a hundred , as appears by bracton ( lib. . tract . . cap. . num . . ) convocentur postmodum servientes & balivi hundredorum & per ordinem irrotulentur hundredarii sive wapentachia , & nomina servientium , &c. nominis autem origo , non ab armorum tactu , ut hovedeno traditum ; sed hinc , quod quoties novus esset hundredi dominus , ei in subjectionis signum arma redderent vassalli , ut ranulfo cestriensi observatum . lib. . cap. . conslata voce a waepen , arma , weapons ; et gaetecan , tradere , reddere , to betake . — quod angli vocant hundredum , supradicti comitatus vocant wapentachium . ll. edw. conf. cap. . sir tho. smith de repub. angl. cap. . says to this effect , that anciently musters were taken of the armor and weapons of the several inhabitants of every wapentake , and from those that could not 〈…〉 de sufficient pledges for their good abearing , their weapons were taken away , and delivered to others . lambert ( in his explication of saxon words , verbo , centuria ) says , this word is especially used in the counties beyond trent . the statutes anno hen. . cap. . — hen. . cap. . and hen. . cap. . make mention of stainctif wapentake , and frendles wapentake in craven in the county of york . see cam. britan , fol. . and cokes part instit . fol. . wapentak , hoc est quietancia de sectis & hundredis quod dicitur wapentak . ms. in bibl. cotton . sub tit . vitellius , c. . waranty , ( warrantia ) is a promise or covenant by deed , made by the bargainer for himself and his heirs , to warrant or secure the bargainee and his heirs against all men , for the enjoying any thing agreed on between them . and he that makes this waranty is called warrantus by bracton , lib. . ca. . & . it passeth from the seller to the buyer , from the feoffer to the feoffee , from him that releaseth , to him that is released from an action real , and such like , and the form of it is thus et ego vero praefatus a. & haeredes mei praedictas quinque acras terrae cum pertinentiis suis praefuto b. haeredibus et assignatis suis contra omnes gentes warrantizabimus in perpetuum per praesentes . see glanvile , lib. . per totum . bracton , lib. . tract . . briton . ca. & coke , lib. . nokes case , fo . . a. waranty , is either real or personal ▪ real , when it is annexed to lands or tenements granted for life , &c. and , this is either in deed , as by the word vvarrantizo expresly ; or in law , as by the vord dedi , or some other amplification : personal , which either respects the property of the thing sold , or the quality of it . real waranty , in respect of the estate , is either lineal , collateral , or commencing by disseisin ; for which see littleton in the last chapter of his tenures , and coke , lib. . fermors case , fo . . a. under this word baredes are comprised all such as the first warranters lands afterwards come unto , either by descent , or otherwise , ex caus● lucrativa . warantizare nihil aliud est quam possident●m defendere . fleta , lib. . 〈◊〉 . . sect. bracton , lib. . ca. , nu . . by what words in a feo●●ment a feossor shall be 〈◊〉 to waranty , see the statute of bigamy , anno 〈◊〉 ed 〈…〉 ca. . see coke on litt. fo . . a. & . b. item utimur , quod si aliquis puerorum nosirorum in aliquo casu tenementa nostro tangenti , vocatur ad warrantizandum , non tenetur warrantizare nisi sit quatuordecim annorum . ms. codex de ll. 〈◊〉 & statutis burgi-villae mount-gomer ▪ a temp . hen. . there is also a warant of atturney , whereby a man appoints another to do something in his name , and waranteth his action ; which seems to differ from a letter of atturney , which passeth ordinarily under the hand and seal of him that makes it , before any credible witnesses ; whereas a warant of atturney , in a personal and mixt action , and many real actions , is of course put in by the attorneys for the plaintiffs or demandants , tenants or defendants ; but , a warant of attorney , to suffer a common recovery by the tenant or vouchee , is acknowledged before such persons , as a commission for the doing thereof directeth . west . par. . symb. tit . recoveries , sect. . f. see atturney , and letter of atturney . ward , ( sax. ƿeard , i. vigilia . item custos ) has divers applications , as a ward in london , latined warda , which is a portion of the city committed to the special charge of one of the twenty-four aldermen , &c. see stows survey . secondly , a forest is divided into wards , manwood , par . . pa. . thirdly , a prison is also called a ward . lastly , the heir of the kings tenant , holding by knights-service , or in capite , or of any common person by knights-service , was called a ward during his nonage , anno hen. . ca. . but , this last , with the court of wards , and all wardships , &c. is taken away by the stat. car. . ca. . wards and liveries , ( wardi & liberatura ) was a court first erected in king henry the eighths time , and afterwards augmented by him , with the office of liveries , and therefore called by him , the court of wards and liveries . now taken away & discharged by stat. . car. . ca. . warrantia chartae , is a writ , that lies properly for him , who is enfeoffed in lands or tenements , with clause of waranty , and is impleaded in an assise , or writ of entry , wherein he cannot vouch , or call to waranty ; in which case his remedy is , to take out this writ against the feoffor or his heir . reg. of writs , fo . . fitz. nat. br. fo . . & fleta , lib. . ca. . warrantia diei , is a writ lying in c●se , where a man , having a day assigned personally to appear in court to any action wherein he is sued ; is , in the mean time , by commandment , employ'd in the kings service , so that he cannot come at the day assign'd ▪ the writ is directed to the justices to this end , that they neither take nor record him in defalt for that day , reg. of writs , fo . . fitz. nat. br fo . . & glanvile , lib. . ca. . warrantia custodiae , is a writ judicial , that lay for him , who was challenged to be ward to another , in respect of land said to be holden in knights-service , which , when it was bought by the wards ancestors , was warranted to be free from such thraldome ; and , it lay against the warranter and his heirs . reg. jud . fo . . but , by the statute car. . ca. . it is now become useless . wardage , ( wardagium ) — sed sint quieti de quolibet theolonio , tallagio , passagio , pedagio lastagio , hidagio , wardagio , & omnibus geldis , fengeldis , horngeldis , forgeldis , penigeldis , tendpenigs , hunderpenigs ; miskemelig , brenalpeninge , gritbbregs , &c. carta gilberti tison summi vexillatoris angliae . sine dat. it seems to be the same with wardpeny , which see . wardstaf . — lambourn mannor in essex is held by service of the wardstaf , viz. to carry a load of straw in a cart with six horses , two ropes , two men in harness to watch the said wardstaf , when it is brought to the town of aibridge , &c. cam. tit . essex . wardfeoh , or wardfegh , sciant presentes & futuri quod ego henricus de la morton dedi — rogero de foresta & johannae uxori suae pro duodecim solidis & sex denariis quae mihi dederunt prae manibus unam acram terrae meae de tribus selionibus , &c. reddendo inde annuatim ad festum sancti michaelis mihi & heredibus meis unum denarium pro omni servitio , herietto , relevio , warda , regali servicio , wardfegh & pro omnimoda secta curiae meae & heredum meorum & assignatorum nostrorum & pro omnibus consuetudinibus & exactionibus , &c. sinc dat . it signify'd the value of a ward , or the money paid to the lord for his redemption from wardship . warden , ( gardianus ) is all one with the fr. gardein , and signifies him that has the keeping , or charge of any person , or thing by office ; as wardens of the fellowships in london , anno hen. . ca. . warden-courts , hen. . ca. . warden of the marches , hen. . ca. . wardens and communalty of the lands contributory to rochester-bridge , eliz. ca. . wardens of peace , ed. . ca. . stat. northampton . warden of the west-marches , cam. brit. pa. . warden of the forest , manwood , par. . pa. . & . warden of the aulnage , hen. . ca. . warden of the kings wardrobe , hen . stat. . wardens of the tables of the kings exchange , edw. . stat. . ca. . & hen. . stat. . ca. . wardens of the rolls of the chancery , ed. . ca. . & . warden , or clerk of the hanaper of the chancery , ibidem . warden of the kings writs and records of his common bench , ibidem , warden of the kings armour in the tower , ed. . ca. . warden of the house of converts , car. . ca. . warden of the stanneries , car. . ca. . see gardian . wardmote , ( wardemotus ) is a court kept in every ward in london ( anno hen. . ca. . ) ordinarily call'd among them the vvardmote court. vide cart. hen. . de libertatibus london , where there are vvards , which are as hundreds , and the parishes as towns inst . fo . . wardpeny , alias warpen , & warthpeny . denarii vicecomiti vel aliis castellanis persoluti ob castrorum praesidium , vel excubias agendas . — concedo etiam eidem ecclesiae leugam circumquaque adjacentem liberam , & quietam ab omni geldo & secto & hidagio & danegeldo & opere pontium & castellorum & parcorum & omnibus auxiliis , placitis , & querelis , & siris , & hundredis ; cum saca & soca , & thol & theam , & infangtheof & warpeny , & lestage , & hamsocne , & forstal , & blodwite , &c. chart. gul. conq. ecclesiae s. martini de bello . — retinui vero mihi & haeredibus meis wartpeny & peterspeny , de praedicta terra . carta bertram de verdon . penes w. dugdale ar. wardwite , significat quietantiam misericordiae in casu quo non invenerit quis hominem ad wardam faciendam in castra vel alibi . fleta , lib. . ca. . immunitas a praesidiis faciendis , vel ab eorum contributione . spelm. warectum , & terra warecta , ( fr. terre garee ) land that has been neglected , and long untill'd ; also fallow ground . tempus warecti , in ancient records , signifies the time wherein land lies fallow , the fallow year , or season for fallowing land. — in warectis , in brueriis , in boscis , in mariscis , in defensis , et in omnibus terris , &c. mon. angl. . par. fo . . a. — xxv acras uno quoque anno ad seminandum , et totidem ad warectandum . idem . . par. fo . . b. see yvernagium . waren , ( vvarenna , from the germ. wahren , i. custodire ) is a franchise , or place priviledg'd either by prescription or grant from the king , to keep beasts and fowle of vvaren , which are hares and conies ; partridges and feasants . if any person offend in such free-waren , he is punishable for the same by the common-law , and , by statute ed. . called the statute de malefactoribus in parcis et chaceis , &c. videtur tamen justiciariis hic et concilio dom. regis , quod capreoli sunt bestiae de warenna et non de foresta , eo quod fugant alias bestias de warenna . hill. an. ed. . ebor. rot. . warnoth , — inter record . de recept . scacc. trin. ed. . linc. . coram rege , i find it to be an ancient custom , whereby , if any tenant , holding of the castle of dover , faild in paying his rent at the day , he should forfeit double , and , for the second failer , treble , &c. and , in mon. angl. . par. fo . . a. — terris cultis & terris de warnoth war-scot , was the contribution that was made towards armor , or war , in the saxons time . sint omnes tam primarii quam mediocres et minuti , immunes , liberi et quieti ab omnibus provincialibus , summonitionibus et popularibus placitis quae hundred laghe angli dicunt , et ab omnibus armorum oneribus , quod warscot angli dicunt et forinsecis querelis . ll. forest . canuti regis . num . . uuarwit . see vvardwite . waste ( vastum , sax. waest ) hath divers significations ; first , it is a spoil made either in houses , woods , lands , &c. by the tenant for life or years , to the prejudice of the heir , or of him in the reversion or remainder . kitchin , fol. , &c. whereupon the writ of waste is brought for recovery of the thing wasted , and trebble damages . see vasto . waste of the forest is most properly , where a man cuts down his own woods within the forest , without licence of the king or lord cheif justice in eyre . see manwood , part , cap. . num . & . secondly , waste is taken for those lands which are not in any one mans occupation , but lie common , which seem to be so called , because the lord cannot make such profit of them , as he does of his other lands , by reason of that use which others have of it , in passing to and fro . upon this none may build , cut down trees , dig , &c. without the lords licence . thirdly , year , day , and waste , ( annus , dies , & vastum ) is a punishment or forfeiture belonging to petit-treason or felony , whereof you may read stamf. pl. cor. lib. . cap. . and see year , day , and waste . waste-ground ( vastus fundus ) is so called , because it lies as waste , with little or no profit to the lord of the mannor , and to distinguish it from the demesns in the lords hands . part inst . fol. . see waste . wastors ( anno edw. . cap. . ) were a kinde of theeves so called . — there have béen ( says the statute ) divers man-slaughters , felonies , and robberies done by people , called roberdsmen , wastors , and draw-latches . hen. . cap. . wastel bread ( anno hen . statute of bread ) forte a uasten , belgis jejunare ; unde illis wastelavond , shrovetide . vox autem unde veniat , non liquet , says the gloss . in x. scriptores . see cocket . water-bailiffs , seem to be officers in port-towns , for the searching of ships . anno hen. . cap. . also an officer so called belonging to the city of london , who hath the supervision and search of fish brought thither , and the gathering of the toll , rising from the thames . he also attends on the lord major for the time being , and hath the principal care of marshalling the guests at his table , and doth arrest men for debt , or other personal or criminal matters upon the river of thames , by warrant of his superiors . watergage ( watergagium & aquagagium ) a sea-wall or bank to stop or restrain the current , or overflow of the water ; also an instrument to gage or measure the profundity or quantity of any waters . watergang ( watergangium , sax. waetergang , i. decursus aquae ) a trench , trough , or course , to carry a stream of water : such , i conceive , as are usually made in sea-walls , to loose and drain water out of the marshes . some authors confound this with watergage , but they seem to have different significations . carta hen. . de ordinatione marisci de romency , &c. ad reparandum wallias & watergangias eiusdem marisci contra maris periculum . — omnibus balivis de besintone , robertus de curci salutem , mando vobis atque praecipio , quatenus justicietis meos homines de snargate , ut faciant wallas & watergangas & clausuras wallarum , sicut debent facere , & si facere noluerint , tum justicietis illos ut faciant , &c. mon. angl. par . fol. . b. watergavel , — henricus — rex , salutem . sciatis nos dedisse — dilecto & fide li nostro huberto de burgo , comiti kantiae , & margariae uxori suae redditum xxxii s. & iv d. quem homines eorundem huberti & margariae de manerio suo de elmour nobis reddere solebant singulis annis per manum balivi nostri de menstreworth , nomine watergavel , habend . &c. dat. hen. . this was a rent paid for fishing in , or other benefit received from , some river or water . watlingstréet ( anno eliz. cap. . ) is one of those four ways , which the romans are said to have made here , and called consulares , praetorias , militares , publicas . this street is otherwise called werlamstreet , and leads from dover to london , donstable , touceter , atterston , and the severn , near the wrekyn in shropshire , extending it self to anglesey in wales . the second is called ikenildstreet , stretching from southampton over the river isis , at newbridge ; thence by camden and litchfield , then it passeth the river derwent near derby , so to bolesover castle , and ends at tinmouth . the third was called fosse , because in some places it was never perfected , but lies as a large ditch ; leading from cornwal , through devonshire by tetbury , near stow in the wolds ; and besides coventry to leicester , newark , and so to lincoln , &c. the fourth was called ermin or erminage-street , stretching from s. davids in west-wales unto southampton . see ll. edw. conf. cap. . whereby these quatuor chemini , or four publick ways had the priviledge of pax regis . waxshot or waxscot ( ceragium ) tributum quod in ecclesiis pendebatur , ad subministrationem cerae & luminarium . wax , cera & shot , symbolum . hac autem solutione multi se contendunt immunes esse a minoribus quibusdam decimis persolvendis . ejusdemque generis sunt , quae alias cock , & wax , alias maineport appellantur . spelm. this waxscot was anciently paid thrice a year towards the charges of candles in churches . way . see chimin . wde ( for so they anciently wrote ) wood. see strond . weald or weld ( sax. weald , i. sylva , desertum ) is the woody part of a countrey , as the weald of kent . cam. britan , pag. . anno hen. . cap. . in the collection of statutes , car. . cap. . it is mis-printed wildes of surrey , sussex or kent , for wealds . wear or were ( wera & wara , sax. waer ) a stank or great dam in a river , well known , accommodated for the taking of fish , or to convey the stream to a mill. — unam waram & duas cotlandas cum dominio & prato . mon. angl. par . fol. . and i have seen an old deed with boera stans in aqua , supposed to signifie a wear . see kiddel . weif . see waif . weigh ( waga ) is a weight of cheese or wool , containing two hundred fifty six pounds of avoir du pois . see waga . cokes rep. fol. . mentions eighty weigh of bay-salt . see waga . weights ( pondera ) there are two sorts of them in use with us : the one called troy weight , which hath twelve ounces to the pound , by which , pearl , precious stones , electuaries , and medicinal things , gold , silver , and bread , are weighed : the other avoir de pois containing sixteen ounces to the pound , by which all other things are weighed , that pass by weight . geo. agricola in his learned tract de ponderibus & mensuris , pag. . termeth the pound of twelve ounces libram medicam , and the other libram civilem , saying thus , medica et civilis libra , numero non gravitate unciarum differunt . by these words avoir du pois are sometimes signified such merchandise as are bought and sold by this kinde of weights . the first statute of york , edw. . in proaem . edw. . stat . . cap. . and hen. . cap. . all our weights and measures have their first composition from the penny sterling , which ought to weigh thirty two wheat corns of a middle sort , twenty of which pence make an ounce , and twelve such ounces a pound ; but fifteen ounces make the merchants pound , ( fleta , lib. . cap. . ) which ( though an ounce less ) should probably be all one in signification with avoir du pois ; and the other pound , called by fleta , trone weight , plainly appears to be all one , with that we now call troy weight . see tronage . from henceforth there shall be one weight , one measure , and one yard , according to the standard of the exchequer , throughout all the realm , &c. anno car. . cap. . weights of a wncel ( anno edw. . stat . . cap. . ) see auncel weight . weythe . — et omnia animalia advenientia fugitiva , gallice weythe in toto hundredo de halton . , mon. angl. par . fol. . b. see waif . wend ( wendus , i. perambulatio , circuitus , from the sax. wendan , to wend , meare ) procinctus terrae amplior , plurima juga in se continens . rentale regalis manerii de wy , pag. . — tres sunt wendi , viz. dounwend , chiltones wend , & bronsford wend , & in quolibet wendo sunt decem juga , & sic in tribus wendis sunt juga , quorum juga & dimid . sunt in wy , &c. et infra . quilibet wendus faciet averagia semper de tribus septimanis in tres , &c. were alias werre ( sax. ƿere & ƿera , i. pretium ) signifies as much as aestimatio capitis or pretium hominis , that is , so much as one paid in ancient time for killing a man ; when such crimes were punished with pecuniary mulcts , nor death . in ll. edw. conf. cap. . we read — were suum — id est , pretium suae redemptionis , his ransom . — si quis ante comitem in placito pugnaverit , emendet secundum precium sui ipsius & forisfacturam , quod angli dicunt were & wite . can. ll ms. pag. . in which words the saxon ƿ ( w ) is often mistaken into p , and written pere and pite . see pere and pite , and see gavelet . weregelt-thef , significat latronem qui redimi potest . fleta , lib. . cap. . also . wergild , wergeld ( wergildus ) pretium seu valor hominis occisi , homicidii precium ; which was paid partly to the king , for the loss of his subject , partly to the lord , whose vassal he was , and partly to the next of kin . — quaedam ( crimina ) emendari non possunt ; quae sunt husbrech , bernet & openthef , & ebere-mord , & lafordfith , & infractio pacis ecclesiae , vel per manus regis per homicidium . ll. hen. . cap. . in which chapter , the crimes are enumerated , which might be redeemed per weram . — de unoquoque fure per totam scutiam est wergelt vaccae & una juvenca , sive fuerit liber homo sive servus . reg. majest . lib. . cap. . the weregild of an archbishop and of an earl was thrimsa's . seldens titles of honor , fol. . weretoff . — et sint quieti de communi misericordia comitatus , de wardpenny & averpenny , de hundredpenny , & thirdingpenny , de weretoff & de forfeng . carta hen. . from the sax. ƿere-to-fon , i. to take a ransom or price for killing a man. see were . wervagium . — cum omnibus aliis consuetudinibus , legibus & libertatibus suis & wervagio suo bi lande & bi strande . carta hen. . leveshamensi coenob . quaere . west saxonlage alias west sexenlage , was the law of the west saxons . see merchenlage . westminster ( westmonasterium ) sax. westmynster , i. occidentale monasterium ) was the ancient seat of our kings , and is now the well known place where the high court of parliament , and courts of judicature sit : it had great priviledges granted by pope nicholas , among others — ut amplius in perpetuum regiae constitutionis locus sit atque repositorium regalium insignium . ep. ejus ad div . edovard . concil . tom. . b. fol. . see city . and inst . fol. . wetecroft . — habebit mensuram unam , sc . wetecroft cum orto , ubi possit manere , &c. , mon. angl. . par . sol . . b. wharf ( wharfa ) is a broad plain place near a creek or hithe of the water , to lay wares on , that are brought to , or from the water . new book ef entries , fol. . anno car. . cap. . wharfage ( wharfagium ) is money paid for landing wares at a wharf , or for shipping or taking goods into a boat or barge , from thence . it is mentioned anno hen. . cap. . and car. . cap. . wharfinger , is he that owns or keeps a wharf , or hath the over-sight or management of it . anno edw. . cap. . car. . cap. . and ejusdem , cap. . whéelage ( rotaticum , fr. rouage ) tributum est quod rotarum nomine penditur ; hoc est , pro plaustris & carris transeuntibus . spelm. whitehart-silver ( candidi cervi argentum ) is a tribute or mulct paid into the exchequer , out of certain lands in or near the forest of whitehart ; which hath continued from henry the third's time , who imposed it upon thomas de la linde , for killing a most beautiful white hart , which that king before had purposely spared in hunting . cam. brit. pag. . whiterent . see quitrent . white spurs , a sort of esquires so called . see esquires . white-straits , a kinde of course cloth , made in devonshire , of about a yard and half quarter broad raw ; and mentioned anno hen. . cap. . whitson-farthings ( see pentecostals ) mentioned in letters patent of henry the eight , to the dean and chapter of worcester . widow of the king ( vidua regis ) was she , who after her husbands death , being the kings tenant in capite , was driven to recover her dower by the writ de dote assignanda , and could not marry again without the kings consent . stamf. prarog cap. . see the statute of the prarog . annu edw. . mag. char. cap. . and hen. . cap. . widowhood ( viduitas ) the state or condition of a widow . sciant presentes & futuri , quod ego margeria quae fui uxor ricardi smith de birchore ( com. heref. ) in viduitate & in legitima potestate mea , remisi , relaxavi , &c. dat. apud birchore die dominica in fest . nativitatis sancti johannis baptistae , anno hen. . will or last will ( testamentum , ultima voluntas ) is of two sorts , a will in writing , called also a testament , and a will by word of mouth onely , called a nuncupative will , which being proved by witnesses , may be of as good force , as that in writing ; except onely for lands , which are not devisable , but by a testament put in writing in the life of the testator . see touchstone of wills , pag. . ex codice ms. nuncupativo march penès registrar . curiae praerog . domini archiepis . cantuar. qu. . in nomine patris & filii & spiritus sancti , amen . the sevententh day of september , the yer of our lord ●hū crist a thousand four hundred and foure , i lowys clyrforth fals and traytour to my lord god , and to alle the blessyd company of hevene , and unworthi to be clepyd a cristen man , make and ordeyne my testament , and my last wille in this manere . at the begynnynge , i most unworthi and goddys tratour , recommaund my wrechid and synfule sowle hooly to the grace , and to the grete mercy of the blessfull trynytie ; and my wrechid careyne to be beryed in the ferthest corner of the chircheyerd , in which parishe my wrechid soule departeth fro my body . and i pray and charge my survivors and my executors as they wollen answere to fore god , as all myne hoole trest in this matère is in hem , that on my stinking careyne be neyther leyd clothe of gold ne of slike , but a blake clothe , and a taper at myne bed , and another at my fete , ne stone ne other thinge , wherby eny man may witte where my stynkyng careyne liggeth . and to that chirche do myne executors all thingis which owen duly in such caas to be don , without eny more cost saaf to pore men . and also i pray my survyvors and myne executors that eny dette that eny man kan axe me by true title , that hit be payd . and yf eny man kan trewly sey that i have do him eny harme in body or in good , that ye make largely his grée whyles the goodys wole strecche . and i wole alsoe , that none of myne executors meddle or mynystre eny thinge of my goodys withoutyn abyse and consent of my supervisors or sum of hem . now first i bequethe to sire phylype la vache knyht my masse-boke , and my portoos ; and my boke of tribulacion to my doughter hys wif. et quicquid residuum fuerit omnium & singulorum bonorum & catallorum superius seu inferius non legatorum , do integre & lego philippo la vache , johanni cheynee & thomae clanvow militibus libere sibi possidendum , &c. probatum , &c. dec. an. . wigreve ( a wig vel wic , quod sylvam sonat ) an overseer of a wood , a woodward . thus spelman . but ƿig in saxon signifies via ; so it may rather signifie an overseer of the highways . winches ( anno jac. cap. . ) a kinde of engin to draw barges up the water against the stream . winkinga . — et dedi eis totas winkingas in boschis & plants . mon. angl. par . fol. . b. quaere . winter-heyning ( anno car. . cap. . ) is from the eleventh day of november , to the of april ; which time , is by the said act excepted from the liberty of commoning in the forest of dean . wisgilthef , ( vale royal , pa. . ) perhaps mistaken for weregelthef , which see . wite , ( sax. ) punishment , pain , penalty , a fine or mulct . hence our wite , or witfree , one of the terms of priviledge granted to our portsmen ; signifying a freedom or immunity from fines or amercements ; not , ( as it is vulgarly accepted and construed among them ) from being liable to be beg'd for fooles for lack of wit or understanding . sax. dict. see wyte & gloss . in x. scriptores . witerden , alias witereden & winterden , was a kind of taxation among the west-saxons , imposed by the publick counsel of the kingdom . for wite and ●itan signifie majores regni , and paedan , concilium . charta ethelwulfi regis catholica , apud malm. de gest . r. lib. . pa. . — mansio ( sc . quaevis ecclesiae assignata , sit tuta & libera ab omnibus secularibus seruitiis , ) nec non regalibus tribuin , majoribus & minoribus , sive taxationibus , quae nos dicimus witereden , &c. withernam , ( vestitum namium , sax. ƿyþ ● contra , & nam , captio , i. reprisals ) is the taking or driving a distress to a hold , or out of the county , so that the sheriff cannot , upon the replevin , make deliverance thereof to the party distreined ; in which case the writ of vvithernam , or de vetito namio is directed to the sheriff , for the taking as many of his beasts as did thus unlawfully distrein , or as much goods of his , till he has made deliverance of the first distress : also , if the beasts be in a fortlet or castle , the sheriff may take with him the power of the county , as appears by the statute vvestm . . ca. . & briton , ca. . vvithernam , ( in bracton , lib. . tract . . ca. . and in vvestm . . ca. . ) seems to signifie an unlawful distress , made by him that has no right to distrein . anno ed. . ca. . see the new book of entries on this word . waad , ( glastum ) is an herb like plantain , growing in some parts of england , the parts of tolouse in france , and in spain , much used for the dying a blew colour , anno hen. . ca. . we call it woad , from the italian guado . wold , ( sax. ) lat. walda , ) a plain , a down , an open champian ground , hilly , and void of wood ; as stow in the wolds , and cotswold in gloucestershire . this is sometimes misunderstandingly confounded with vveald . wong , ( sax. ƿang , ) a field . tres acrae terrae jacentes in lez wongs , i. in campis opinor seminalibus , magis quam pascuis , sayes spel. so in an ancient charter of garradon-abby in leicestershire , dat. ed. . there is mention of the wicket-wong , which is a large piece of enclosed ground , lying before the abby-gate , still reteiniug the name . see vvang . woodgeld , ( vvoodgeldum ) seems to be the gathering , or cutting wood within the forest , or money paid for the same , to the foresters . and the immunity from this by the kings grant , is by crompton called woodgeld , fo . . coke ( on litt. fo . . a. ) sayes , it signifies to be free from payment of money for taking of vvood in any forest . woodmen , are those in the forest , who have charge especially to look to the kings woods . crom. jur. fo● . woodmote court , is the court of attachment of the forest . manw. par . pa. . see attachment . uuood-plea court , is a court held twice a year in the forest of clun , in com. salop , for determining all matters of wood and agistment there ; and , was anciently perhaps the same with vvoodmote court. uuoodward , ( vvoodwardus ) is an officer of the forest , whose function you may understand by his oath , set down in crom. jur. fo . . you shall truely execute the office of a vvoodward of b. woods , within the forest of vv. so long as you shall be woodward there ; you shall not conceal any offence , either in vert or venison , that shall be committed or done within your charge ; but you shall truely present the same , without any favour , affection or reward : and , if you see or know any malefactors , or find any deer killed or hurt , you shall forthwith do the verderor to understand thereof ; and , you shall present the same at the next court of the forest ; be it swainmote or court of attachments ; so help you god. vvoodwards may not walk with bow and shafts , but with forest bills . manwood , par . . pa. . arcum & calamos gestare in foresta non licet , sed ( ut rescripti utar verbo ) hachettum tantummodo . sic term. hill. anno ed. . ebor. rot . . wool-drivers , ( anno & ph. & ma. ca. . ) are those that buy wool , abroad in the country , of sheepmasters , and carry it on horseback to the clothiers , or to market-towns to sell again . woolstaple , ( anno hen. . stat. . ) that city or town where wooll was sold . see staple . wool-winders , are such as wind up every fleece of wooll that is to be packed and sold by weight , into a kind of bundle , after it is cleansed in such manner as it ought to be by statute ; and , to avoid such deceit , as the owners were wont to use , by thrusting in locks of refuse wool , and other dross , to gain weight , they are sworn to perform that office truly between the owner and the buyer . see the statute h. . ca. . — hen. . ca. . and eliz. ca. . wranglands , seen to be misgrown trees , that will never prove timber . kitchin , fo . 〈◊〉 . wreck , ( wreccum maris . sax. ƿraec , i. detortum , abdicatum , ) is , where a ship is perish'd on the sea , and no man escapes alive out of it , if any part of the ship , or any of the goods that were in it are brought to land by the waves , they belong to the king by his prerogative , or to such other person to whom the king has granted wreck . but , if a man , a dog or a cat escape alive , so that the owner come within a year and a day , and prove the goods to be his , he shall have them again by provision of the statute of vvestm . . ca. . & ed. . ca. . see coke , vol. . fo . . a. bracton , lib. . ca. . num . . edouardus , conf. ringsted cum libertate adjacente & omni maris ejectu , quod wrec dicitur , ecclesiae ramesiensi largitus est . lib. ramesien . sect. . by which , and other antiquities , it appears , that vvrec did not onely comprehend goods that came from a perishing ship , but whatever else the sea did cast upon the land , were it precious stones , fishes , or the like . for , in the statuto praerog . regis , ca. . we read — rex habebit wreckum maris per totum regnum , balenas & sturgiones captas in mari , vel alibi infra regnum , exceptis quibusdam privilegiatis locis per regem . — see rot. cart. . hen. . m. . & rot. cart. hen. . m. . & pat. . h. . in dorso , m. . this in the grand customary of normandy , ca. . is called uarech , and latined veriscum ; and in some of our ancient charters it is written seupwerp quasi sea-up-werp , i. ejectus maris ; from up-werpen , ejicere . in the statute hen. . ca. . it is called vvreke de mer. see inst . fo . . writ , ( breve ) is the kings precept , whereby any thing is commanded to be done touching a sute or action , as the defendant or tenant to be summoned , a distress to be taken , a disscisin to be redressed , &c. and these vvrits are variously divided in divers respects ; some in respect of their order , or manner of granting , are termed original , and some judicial . original vvrits are those , which are sent out of the high court of cnancery , for summoning the defendant in a personal , or tenant in a real action , before the sute begins , or to begin the sute thereby . those are judicial , which are sent out by order of the court , where the cause depends , upon emergent occasion after the sute begun . old nat. br. fo . , & . and , judicial are thus known from original , because their teste bears the name of the chief justice of that court , whence it comes , whereas the original saith , teste meipso , in the name , or relating to the king , and , according to the nature of the action they are personal or real ; real are either touching the possession called vvrits of entry ; or the property , called vvrits of right . some vvrits are at the sute of the party , some of office . some ordinary , some of priviledge . a vvrit of priviledge is that which a privileg d person brings to the court for his exemption , by reason of some priviledge . see procedendo , and new book of entries , verbo , priviledge . see brief . writ of rebellion . see commission of rebellion . writ of assistance , issues out of the exchequer , to authorise any person to take a constable , or other publick officer to seize goods or merchandise prohibited and uncostomed , &c. stat. car. . ca. . writer of the tallies , ( scriptor talliarum ) is an officer in the exchequer , being clerk to the auditor of the receipt , who writes upon the tallies the whole letters of the tellers bills . wudhepec . see pudhepeck . wulvesheved , contractius wulveshead , ( sax. ƿlfe , lupus & heofod , caput , i. caputlupinum , ) was the condition of those , who were outlaw'd for criminal matters in the saxons time , or not yielding themselves to justice . for , if they could have been taken alive , they must have been brought to the king ; and , i. they for fear of being apprehended did defend themselves , they might be slain , and their heads brought to the king ; for , their head was no more to be accounted of , than a vvoolfs head . ll. hdw. set forth by lamb. fo . . b. num . . and bracton , lib. . tract . . ca. . see utlary . v●oolfeshead & vvulferford , are all one . coke on litt. fo . b. wyke , ( vvyka ) a farm , or little village . — et tutam wykam cum hominibus , &c. mon. angl. par. fo . . wyte , or wite , ( vvyta vcl vvita . sax. ƿite , i. paena , mulcta ) saxones duo mulctarum genera statuere ; weram & wptam . wera mortis reos & gravissime peccantes liberabat . wyta mediis & levioribus delictis statuta fuit , non certa sed pro qualitate commissi ; alias gravior , alias levior ; salvo tamen semper contenemento delinquentis ( ut lex loquitur in mag. char. ca. . ) hoc est , aestimatione ejus , anglice , his countenance . — ex his placitis quaedam emendantur centum solidis , quaedam wera , quaedam wyta , quaedam emendari non possunt . leg. hen. . ca. . — emendet juxta ordinis digu●tatem , sive per redemptionem , i. were ; per forisfacturam , i. wite ; per legis transgressionem , i. lasblite . ms. de ll. canu●i in bibl. cotton . sub tit . vitellius , c. . x. xenia , dicuntur munuscula quae 〈◊〉 provincialibus rectoribus provinciarum offerebantur . vox in privilegiorum chartis non insueta ; ubi quietos esse a xeniis , inmunes notat ab hujusmodi muneribus aliisque donis regi vel reginae praestandis , quando ipsi per praedia privilegiatorum transierint ; ut in chart. domus semplingham . principibus enim olim fuit in more , a subditis vel invitis munera extorquere . itaque ab hoc jugo liberos fecit ecclesiasticos aethelbaldus rex merciorum anno . ut ab exemplari chartae suae cum apud ingulphum saxtum wil. malmsb. lib. de gestis reg. angl. p. . l. . his verbis habetur . — concedo ut omni monasteria & ecclesiae regni mei a publicis vectigalibus , operibus & oneribus absolvantur — nec munuscula praebeant regi vel principibus , nisi voluntaria . spelm. — nulla autem persona parva vel magna ab bominibus & terrae radingensis monasterii exigat , non equitationem sive expeditiunem non summagia , non vectigalia , non navigia , non opera , non tributa , non xenia , &c. in memorand . scacc. de anno edw. . trin. rot. . y. ya & nay — quod homines sui ( riponienses ) sint credendi per suum ya & per suum nay in omnibus querelis & curiis , licet tangen . fréedmortel , &c. carta athelstani regis . yard ( virga ) is a well known measure of three foot in length , which ( according to sir richard baker ) henry the first ordained by the length of his own arm. see virga terrea . yard land ( virgata terrae , a sax. gyrd , i. virga ) is a quantity of land , various according to the place . as at wimbleton in surrey it is but acres , in other counties , in some ; in some , and in others acres . virgata terrae continet acras , & virgatae constituunt unam hidam , & quinque hidae constituunt feodum militare . ms. abbatiae malmsb. — this yardland , bracton ( lib. . cap. . & . ) calls virg 〈…〉 m terrae ; but expresseth no certainty what it contains . it is called a verge of land. anno edw. . statute of wares . see seldens titles of honor , fol. . year and day ( annus & dies ) is a time , that determines a right in many cases , and is in some an usucaption , and in others a prescription ; as in case of an estray if the owner ( proclamation being made ) challenge it not within that time , it is forfeit : so is the year and day given , in case of appeal , of descent , after entry or claim , of non claim upon a fine , or writ of right , of the death of a man , sore bruised or wounded ; of protections , essoigns , in respect of the kings service ; of a wreck , and divers other cases . coke , vol. . fol. . b. and inst . fol. . year , day , and waste , ( annus , dies , & vastum ) is a part of the kings prerogative , whereby he challengeth the profits of their lands and tenements , for a year and a day that are attainted of petit-treason , or felony , whosoever is lord of the mannor , whereto the lands or tenements do belong ; and not onely so , but in the end may waste the tenement , destroy the houses , root up the woods , gardens , pasture , and plough up meadows , except the lord o the fee agree with him for redemption of such waste ; afterwards restoring it to the lord of the fee , whereof you may read at large stamf. praerog . cap. . fol. . yelding or yéelding , and paying ( reddendo & solvendo ) is a corruption from the sax. geldan and gyldan , sulvere , praestare . and in domesday gildare , is frequently used for solvere , reddere ; the saxon g being often mistaken into y. yeme , is an ancient corruption of hieme , winter , as i have seen in an old deed — reddend . — ad festum s. martini in yeme , &c. and in another of edw. . thus , — reddend quando dict . quatuor acrae terrae s●miaantur somine yemali , duodecim bussel . boni & legalis frumenti ad festum purificationis , &c. yeven or yeoven , ( as we use at the end of indentures , and other instruments , yeoven the day and year first above written ) is a corruption from the saxon geofian , i. dare , and is the same with given . so dictum de kenelworth concludes with — yeoven and proclaimed in the castle of kenelworth the day before the calends of nov. anno . yeman or yoman ( from the sax. geman , i. communis ) these camden in his britan , pag. . placeth next in order to gentleman , calling them ingenuos , whose opinion the statute affirms , anno ric. . cap. . and ejusdem . cap. . sir tho. smith in his repub. angl. lib. . cap. . calls him a yoman , whom our laws call legalem hominem , which ( says he ) is in english a freeman born , that may dispend of his own free-land , in yearly revenue to the sum of forty shillings sterling . verstegan ( in his restitution of decayed intelligence , cap. . ) writes , that gemen among the ancient teutonicks and gemein among the modern , signifies as much as common , and that the first letter g. is in this word , as in many others , turned into y. and so written yemen , which therefore signifies commoner . yoman signifies also an officer in the kings house , in the middle place between the serjeant and the groom ; as yoman of the chaundry , yoman of the scallery . anno hen. . cap. . yoman of the crown . anno edw . cap. . the word yongmen is used for yomen in the statute of hon. . cap. . and i have seen it written jeman in old deeds . see jeman . yingeman . ll. hen. . cap. . danagildum quod aliquando yingeman dabatur , i. d. de unaquaque hida per annum , si ad terminum non reddatur , wita emendetur . the learned spelman thinks this may possibly be mistaken for inglishman or englishman , though he findes it written yingeman , both in sir rob. cottons codex , and his own . yvernagium ( from the fr. hyvernee , i. the winter-season ) was anciently used for the winter-seedness or season for sowing corn. — dictus vero willielmus & haevedes sui arabunt unum seilonem ad yvernagium , & unum seilonem ad semen quadragesimale , & unum seilonem ad warettum , &c. carta ricardi de harrecurt penes tho. wollascot arm. sine dat . z. zuche ( zucheus ) stips siccus & aridus , a withered or dry stock of wood. rex , &c. quia accepimus per inquisitionem , quod non est ad d●mpnum seu praejudicium nostrum , aut aliorum , si concedimus dilecto valecto nostro ric. de stelley omnes zucheos aridos , qui anglice vocantur stobenes infra hayam nostram de beskewood , quae est infra forestam nostram de shirewode , &c. pla. forestae in com. nott. de anno hen. . — auxilium faciend . burgensibus salop. de vet●ris zuchis & de mortuo bosco , &c. claus . hen. . 〈◊〉 . . finis . corrigenda . in a bet , read , from the sax. a , i , ad . chancemedley , r. party might . clerk of the ax , dele totum , and read clerk of the acts , is an officer of good account in the navy office , who receives and enters the commissions and warrants of the lord admiral , and registers the acts and orders of the commissioners of the navy . anno car. . cap. . consolidation , r. usum fructum . contrabanded , r. or exported . cordage , r. general appellation . cuckingstool , r. scalfingstole . defend , r. fence-moneth . dismes , r. hath his share . divorce , r. a divertendo . eberemurder , r. eberemorþ . fardingdeal , r. sax. faeorþ . farthing of land , r. feorthling . flitchtwite , r. contention or forathe , r modo — fidelem franc-almoin , r. terrestrial . friburgh , r. fidejussor . frumstol , r. homestal . ll. furca , r. seu calefurcia . gabel , r. gafol al. gafel . gardian , r. gardung . gavelkind , r. nominant . haec terrae . gultwit , r. for gyltwite . haga , r. de quinque solidis . hamsoken , r. hamsoc●e & fridebrice . hokeday , r. senescallus curiae de . honor , r. ●lun , raleigh . horngeld , r. sax. horn . imparlance , r. the like clause . infangthef , r. s. ben. rames . insidiatores viarum , r. are words . institution , r. no franc-tenement . jury , r. publick or private . knave , r. sax. cnapa , in every place , &c. knight , r. by divines . landa , r. a lawnd or . landcheap , r. sax. landceap from ceapan . livery of seisin , r. there was — delivered - magna charta , r. sir edw. manumission , r. sigillo comitatus nostri . mise , r. lords marchers . naam , r. quod inscribitur . nusance , r. vicountiel . precariae , r. iv precarias in . saka , r. see sac. sea-rover , r. see pirate . serjeant , r. countor , is . serjeanty , r. donec perusus . sharping corn , r. harrow tines . shirif-tooth , r. & terris in . soc , r. secta de . socage , r. tenure of lands . solidata terrae , r. vic●comitibus . specialitas , r ▪ ab eodem . suffragan , r. ( suffraganeus ) team , r. children , goods . terrage , r. pavagio , passagio . theft , r. personal goods . theftbote , r. emenda furti . trista , r. ni fallor . wainage , r. contenement or warranty , r. tenementa nostra . xenia , r. ut omnia . notes, typically marginal, from the original text notes for div a -e * coke on litt. fo . , a & . b. dodridges english lawyer , fo . . spel. in praef. glossar . notes for div a -e edw. . art. . & phil. & ma. art. . edw. . art. . & phil. & ma. art. . edw. . c. . edw. . art. . & phil. & ma. art. , & . & phil. & ma. art. . ibid. art. , . edw. . cap. . & phil. & ma. art. . what moves to death , or kills the dead , is deodand , and forfeited . * makes it a sanctuary . * sedes pacis . * fire and water , ordael . * free from tax and tribute . * frithsoke , or place of immunity . ex monast . angl. pa. fol. . b. the decisions of the lords of council & session in the most important cases debate before them with the acts of sederunt as also, an alphabetical compend of the decisions : with an index of the acts of sederunt, and the pursuers and defenders names, from june to july / sir james dalrymple ... scotland. court of session. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing s estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : or : ) the decisions of the lords of council & session in the most important cases debate before them with the acts of sederunt as also, an alphabetical compend of the decisions : with an index of the acts of sederunt, and the pursuers and defenders names, from june to july / sir james dalrymple ... scotland. court of session. stair, james dalrymple, viscount of, - . v. ([ ], , [ ], ; [ ], , [ ], p.) printed by the heir of andrew anderson ..., edinburgh : . reproduction of original in huntington library. index at end of both parts. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual 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markup reviewed and edited - pfs batch review (qc) and xml conversion the decisions of the lords of council & session , in the most important cases debate before them , with the acts of sederunt . as also , an alphabetical compend of the decisions ; with an index of the acts of sederunt , and the pursuers and defenders names . from june . to july . part first , &c. observed by sir james dalrymple of stair , knight and baronet , &c. edinbvrgh , printed by the heir of andrew anderson , printer to his most sacred majesty , anno dom. . unto the right honourable george earle of aberdeen &c. lord high chancellour of scotland . sir david falconer of nevvtoun , lord president of the session . sir george mckenzie of tarbet , lord clerk-register . sir iames foulis of collingtoun . sir iohn lockhart of casslehill . sir david balfour of forret . sir iames foulis of reidfoord . sir alexr . seton of pitmedden . sir roger hogg of harcarse . sir andrew birnie of saline . sir patrick ogilvie of boyn . sir iohn murray of drumcairn . sir george nicolson of kemnay . iohn wauchop of edmistoun . sir thomas steuart of blair . sir patrick lyon of carse . senators of the colledge of justice , and ordinar lords of council and session . william marquess of queensberry &c. lord high thesaurer of scotland . iohn marquess of athol &c. lord privy seal , and vice-admiral of scotland . alexander earl of murray &c. conjunct-secretary of state. iames earl of pearth &c. lord justice-general , extraordinar lords of the session . my lords , my duty and affection obliges me to dedicate these acts and decisions to your lordships , because they are your own ; i have only been your servant in observing and collecting them , and am confident , they will serve for the illustration and vindication of your justice , and faithfulness in your service to the king and kingdom , to whom it cannot but be highly acceptable and satisfying to see , that in so long a tract of time , you have kept so steady and equal a course in the administration of justice with 〈…〉 . it hath been looked upon as the priviledge of judges● to bring in causes to be determined , in what order they thought fit , which gave occasion of great reverence to , and dependence upon them , and of gratifications to their friends , but your lordships having found so much inconveniency to the subjects , by their tedious , expensive , and uncertain attendence , unavoidable in that way , you did therefore willingly , and of your proper motion quite that priviledge , and ordered that all men should have dispatch in justice , as their own diligence put them in readiness to demand it , without pretence of complaint for being postponed or delayed ; and you gave the rise for interposing the authority of parliament to that order , which could not but avoid the suspition of inequality , which did occur , while every judge in his course , did choise at discretion what causes to hear , which were readily supposed to be these of his friends and relations . as your lordships have been equal in the order , so these decisions will show that you have been impartial in the matter of justice , and it will appear that you have followed the same uniform course of justice , otherwise it had been impossible for you to quadrat with your selves , if you had followed any other rule ; for if personal interest had great influence , it could not fail but the same case , would have been diversly determined amongst different parties : the way of truth and justice is one , and never crosseth or just●eth with it self ; but the way of error and partiality is infinite , and can never be long consonant , and the pretence of varying upon differences in the cases will easily be perceived , when these are not the true motives of variation , nor can the greatest caution keep former cases so in memory , as not to fall in flat contradictions in some length of time , when justice is not the rule ; it was no wonder that inconsistencies did occur , when former decisions were but little known , and were only transmitted by uncertain tradition , from the memory of judges or advocats , where a constant custom was not introduced ; but in circumstantiat cases , all the points of fact , could not be so preserved , but pleaders would differ about them , and controvert whether the difference were so material as to be the just motives of alteration ; and if they should have recourse to records , they could thence have little remedy , seing many eminent decisions came to be transacted before any act or decreet thereupon were recorded , and though they were , yet the motives upon which the lords did proceed were seldom decernable in the mass of disputes . the contrarieties that are remarked by the judicious and industrious lord dury ( who did serve and observe about the same length of time that i have done ) are the more excuseable , that before his time the decisions of session were not much marked , and but in few hands , yea it was a long time before the decisions observed by dury , were become common , and were cited by pleaders , or noticed by judges . it is impossible to evite the clamours of parties coming short of their expectation , when they are in heat and fervency carrying on their cause , and when they have heard the wit and eloquence of their advocats , endeavouring to make their case , if not evidently just , at least probably such ; but when that fervour is cooled , upon second thoughts , re-considering the motives upon which the lords proceeded , if they see that they decided not otherwise upon the same grounds , they cannot be so far wanting to their own quiet , as not to acquiesce and rest satisfied , considering that their first thoughts were in fervour , and at best , were but the conceptions of parties , whose interest hath a secret influence to byass their first apprehensions , they could not but be convinced that the private and particular opinion of parties interressed , should quietly cede to the judgment of so many learned and experienced judges , having no other concernment in the event of the cause , but that justice might be inviolable , and that no pernicious or dangerous preparative might be laid , to the common detriment of all , and who by all the obligations whereof men are capable , towards god , their prince , countrey and posterity , are engaged to be careful and tender of justice . it is the great interest of mankind , that every man should not be judge in his own cause , but that there should be indifferent judges , of good report , men of courage , fearing god , and hating covetousness , who might hear and determine the controversies of parties , which necessarly doth imply , that either party should acquiesce in the publick judgment of authority . it is amongst the greatest interests of mankind , that they may securely enjoy their rights and possessions , being free from fear to be over-reached , or oppressed , without remedy ; which can not be attained , unless their rights be lodged in the hands of just and judicious judges , wherein at first they could have little more to rest on , but the reputation that their judges were such , nor could the judges then have any other rule then bonum & equum , according to the discretion of good men , and therefor did differ little from arbiters , until they came to have fixed customs and statutes , clear and known , which could not come the length of a sufficient rule for all cases , for there will ever be new cases occurring ; and therefore the best expedient to give this most desireable security , is , to show that judges do alwayes proceed suitably to themselves without interfeiring ; and that they make not law like the delphick sword , bowing or bending to the several parties , but as a firm and stable rule , which will ply to no obliquity , but whatever must be regulate by it , must be applyed to it , and be straight like it , and so quadrat one to another , which can be no way better known , than by the publishing and comparing of decisions , whereby it may be seen , that like cases have like events , and that there is no respect of persons in judgment ; all men cannot be lawers , nor can the most part have discretion enough to understand aequum & bonum ; yet few will be found to want capacity to compare decisions , and so perceive if they be congruous and uniform , and if they find them such , they may easily be perswaded , that their uniformity could be by no other rule than law , and justice . it is no small prejudice to any nation , to make them believe or suspect that their rights are not secured in just hands , for that overturns their quiet and security . the most part will never have a pursuit determined against them , and far fewer will find themselves worsted by personal considerations , but no man can say but he may , and most do fear that they shall be involved in law suits , and if they be not perswaded to find a sure remedy by just and knowing iudges , then all is unsecure and disquieted , so that it is more the advantage of a nation that their judges were but reputed just , though they were not , then that they were just , yet were reputed unjust , for this case toucheth and grieveth all , whereas the former can reach but a few . king iames the fifth , who institute the colledge of justice , ordered one of the lords to keep a journal of their decisions , with which henry sinclar dean of rastalrig was entrusted , and did observe the same for the space of ten years , as maitland , hadingtoun , hope , balfour , spotswood , dury , and several others since have done ; and after our sacred soveraign who now reigns , did restore the colledge of justice to it 's ancient constitution and splendor , and did make a full nomination of the senators thereof ; and call most of the eminent advocats to the bench , so that after a long interruption , the session was almost wholly new , therefor it was very necessary that their decisions should be observed , which induced me ( being one of that nomination ) to undertake that task , which i did constantly follow , making up this journal of all the decisions that had any thing of difficulty or importance in them , which i did design to leave behind me , as a token of my most devoted affection to that excellent society , the colledge of iustice , in which , with much satisfaction i spent the far greatest part of my life , and was very happy in the mutual affection of my colligues , both while i was at the bar , and on the bench , yet the weight of the charge i did bear , ( which in a few years sunk my predecessor sir iohn gilmour , though a man of great strength of body and spirit , when he undertook that office ) made me consider , that it was fit for me , before age or infirmity should make that burden more uneasie , to have some remnant of my life , of which i might be master , without diversion , for which some of your lordships and others knew my resolution to retire long agoe ; and therefore i did propose to your lordships the publishing of these decisions wherein i have your allowance and approbation . i shall need to say nothing as to these decisions in behalf of your lordships , i hope the matter will speak more for your honour , than to need any thing further from me ; i might say great things of that judicature , and of your selves particularly , but i shall forbear , least any should think it might look like flattery , and therefore shall only add a little for my self . i did not pick out such decisions as i liked best , leaving out others which might have showen contrariety ; nor did i express my opinion when different from the plurality , but i had ever that deference to your judgement , that i did not omit any thing that was said for it , much less did i magnifie my own opinion against it , though i cannot say that i did oft differ from it . i did form this breviat of these decisions , in fresh and recent memory , de die in diem as they were pronunced ; i seldom eat , before i observed the interlocutors i judged of difficulty , that past that day , and when i was hindered by any extraordinary occasion , i delayed no longer then that was over . it was neither feazable nor fit that i should set down the large pleadings , or the written informations of parties , i did peruse them throughly , and pitched upon the reasons which were of moment , as to the points determined , whereas in the same informations , there were many obvious clear points insisted on , which i omitted . i did alwayes relate the case as it was proposed or resumed to the lords , and with the important reasons offered by parties , i added these which occurred to the lords in their deliberations ; so that all the reasons and motives upon which the lords proceeded , will neither be found in parties informations , nor clerks minuts , for though it was not fit for the lords to suggest any point of fact not alleadged by parties : yet it was most proper for them to supply the points of law arising from the fact proposed . and in such a breviat it is not to be expected that i should at large set down the elegant and eloquent disputes of the lawers , but that i should express the matter and moment of their reasons , with the greatest plainness and equality that i could . it is like , some of my colligues may have observed other cases than these , and in these , may have worded interlocutors otherwise , and adduced some other reasons , which cannot at all weaken the credit of these , for some decisions were past when i kept my course in the outter-house , and others were reported long after the informations were given , which might escape me , and many i thought of no such intricacy or importance , as made them fit to be published , but i do with all sincerity and confidence assert , that i did omit none i found of difficulty , upon any design to cover inconsistencies , or any other end of that kind , nor is it of import what the words were , if the matter were truly exprest ; for no observer did ever look into the clerks minuts , and different observers will not alwayes have the same opinion of the importance of reasons , nor will find themselves obliged to adduce all the reasons proposed : neither have i recorded any decisions but what was determined while i was present , being resolved to take nothing at a second hand . these decisions were written with many different hands , but all of them were then in my family , and some of them understood not the matter , by which , and the haste i was forced oftimes to put them to , there was much uncorrect , but i did expect that i might have been present , and have overseen the press my self ; i began to cause transcribe them with a better hand , and did consider whether it were not fit to amplifie and embellish the disputes so , as might have been expected from so pregnant and eloquent pleaders , as our time hath afforded , who have been nothing short of their predecessors , but i thought that this would look too like a new frame from my own fancy or memory , after so long a time , and therefore i resolved they should be keept as they were at first written , and if so they prove uniform , as it will be a great evidence of your lordships justice , so it will be a strong proof that they are sincere and authentick , having been written on the several sederunt dayes , for more then twenty years together ; and therefore i do int●eat the favour , that what is uncorrect may be excused and supplied from the matter . i had the best opportunity to make these observations , being scarce a day absent in any of these sessions wherein i have marked them from the first of iune . until the first of august . and i was not one day absent from the thirteenth of ian●ary . when it pleased his majesty to appoint me to be constant president of the session in place of my lord craigmiller , who had then demitted , except the summer session . when i attended his majesty by his own command , during all which time , i hope your lordships will bear me witness that i never used arrogance or insolence , or the least reproachful or bitter expression against any of the number ; and i do with great thankfulness acknowledge that i could not have expected more kindness and respect than i found from your lordships , which made me in gratitude take this opportunity to testifie the honour and value i have for that honourable society , and that i am in great sincerity , leyden october . november . . my lords , your lordships most humble servant , ia : dalrymple . his majesties gift and priviledge to sir iames dalrymple of stair , for printing his institutions , the acts of sederunt , and decisions of the lords of session . charles , by the grace of god , king of great-britain , france and ireland , defender of the faith , to all and sundry our leidges and subjects whom it effeirs , to whose knowledge these presents shall come , greeting : forasmuch as our trustie and welbeloved counsellor , sir james dalrymple of stair , president of our session , hath observed and written the acts and decisions of the lords of our session , since our happie restauration to this time : and hath also written the institutions of the law of that our ancient kingdom of scotland . and we being well satisfied with his pains and diligence therien , and knowing his long experience and knowledge of the laws and customs of that our kingdom , and his constant affection and faithfulness to vs ; and being confident of the great benefit may arise to all our subjects of that our ancient kingdom , by publishing of the saids decisions and institutions ; and being willing to give to the said sir james all encouragement therein , therefore wit ye vs to have ratified and approven . likeas , we by thir our letters , ratifie and approve the contract agreed upon betwixt the said sir james and agnes campbel and patrick tailziefer merchant in our burgh of edinburgh , now her spouse , having the right to , and exercing the office of our printer in our said ancient kingdom of scotland , for printing of the saids books in all the heads , articles and clauses therein contained whatsomever : prohibiting all others to print the saids books , for the space of ninteen years , without the special leave of the said sir james , his heirs and successors , as the said contract of the date the . ●f march . year● , at length contained in the said gift and ratification under our privie seal more fully bears . given at our court at whitehall , aprile . . years , and of our raign● the . year . per signaturam manu s. d. n. regis supra scriptam . act of sederunt , decimo iunij . the lord president did signifie to the lords , that he having these twenty years observed the remarkable practiques or decisions that had past in this court , either upon debate in presence of the whole lords , or upon report from the ordinary in the outter-house , expressing not only the sum of the debate , as it was considered , and resumed by the lords , with the interlocutor ; but also the grounds whereupon the lords proceeded : and being of intention to put these decisions in print , he had acquainted the king therewith , and had his majesties allowance and approbation therein . and the saids lords considering that the lord president has been at extraordinary pains , in observing and collecting these decisions , and that the publishing thereof will be of great use and advantage , not only to the colledge of iustice , but to the whole leidges ; they approve his resolution to print the saids decisions , and did render him hearty thanks for undertaking this work , tending so much to the publick good. errata vide after the first index . index of the acts of sederunt . act for uniformity of habite amongst the ordinary lords , iune th , . act for continuing summons and writing in latine as formerly , . act anent wakenings , june . . act for retaining the principal writs presented to the register , and giving forth only extracts thereof , . act for protestation money , july th . act for granting commissions to debitors who are sick , or out of the countrey , on the act debitor and creditor , july : . act discharging lessons , the last moneth of the session , november . . act anent executors creditors , february . . act anent granting of bonds by apparent heirs ; whereupon apprizings or adjudications may follow , in prejudice of the defuncts creditors . . act anent advocats and expectants , not paying their dues , . act discharging confusion the last day of the session , february . . act in favours of the keeper of the minute-book , june . . act concerning the buying of the citiedail , september . . act anent the seal of court , november . . act against general letters , june . . act for keeping the bar●s , june . . act anent pro●tutors , june . . act ordering no sight of process in the summer session , which were seen in the winter before , november . . his majesties instructions to the commissars , february . . orders to be observed in confirmations of all testaments , ibid. instructions to the clerk , ibid. act against decreets , for not reproduction of cessiones bonorum , november . . his majesties letter to the lords concerning prizes , january . . warrand for general letters , for the contribution due out of benefices to the lords , november . . oaths to be taken for the price of fowls , january . . act anent extracts of registrate writs , bearing the procurators names , though not subscribing , december . . act anent extracting acts and decreets , ianuary . . act against magistrates of burghs , for letting prisoners for debt go out of the tolbooth , iune . . his majesties order to the commissioners of his thesauray to free the lords from the cess , july . . act for keeping the bars , november . . act concerning priviledged summons , july . . act anent payment of dues for summons , containing two diets , july . . act concerning bankrupts , january . . act ordaining advocations , or suspensions of processes for conventicles , to be only past in presentia , or by three lords in vacant time , june . . letter anent pryzes , july . . act for ordering new hearings in the outer house , july . . letter from his majestie against appeals , june . . act concerning acts before answer , july . . act for tryal of those presented to be ordinary lords of session , july the last . act upon the marquess of huntly's disowning appeals , january . . act concerning prisoners for debt , february . . act anent bills of suspension , february . . act ordaining processes after avisandum to be carryed to the ordinary that same day , and reported in his week , june . . heugh riddel sent to the plantations , july . . act anent passing of bills for liberty out of prison , july . . act concerning the granting of protections , february . . his majesties letter concerning the clerks , june : . act concerning the registers , iuly . . act for inventaring the registers books , july . . act anent the manner of booking decreets of registration , november . . act anent the registers of seasines and hornings in the several shires , january . . act concerning arrestments , february . . act concerning advocates , june . . act concerning the sisting of execution upon bills of suspension , july . . act concerning the suspensions of protestations , july . . act against solicitations , november . . act concerning bills relating to concluded causes , november . . suspensions of the excize to be past only in presentia , december . . warrand anent precepts for giving seasine upon retoures , february . . act in favours of the lord register , february . . act discharging clerks to lend out processes to any except advocats and their servants , february . . act prohibiting the clerks to give up bills relating to processes , whereupon there is any deliverance of the lords , july . . act discharging advocates , and writers servants , to write their masters subscription , july last . act ordaining hornings and inhibitions to be booked , which were not booked the time of the vsurpers , january . . orders for payment of the dues of the signet , where suspensions are appointed to be discust upon the bill , january . . act in favours of intrant advocats , february . . act anent executors creditors , november . . act anent the registration of hornings , november . . act against solicitations , december . . act anent the taking of renunciations from persons inhibited , february . . act against petitions for alteration of acts extracted , february . . his majesties letter in favours of the lord register , anent the nomination of the clerks of session , june . . act concerning nottars , july . . act concerning bills of suspension , november . . act anent the marking of advocates compearance for defenders , november . . act in favours of the macers , february . . act anent seasines and reversions of lands within burgh , february . . the acts of sederunt , of the lords of session . beginning the th iune , and ending in february . act for vniformity of habit by the ordinary lords . iune th . . the lords did find , that the whole fifteen ordinary lords of session , of whatsoever place , dignity , or title they be , should carry and use the ordinary habit and robes of the ordinary lords of session in all time coming . act for continuing summonds , and writing in latine as formerly . iune . . the lords taking to their serious consideration , of how dangerous consequence the alteration of formes and customes is ; they have therfore ordained , and hereby ordain all summonds which formerly abode continuation , and shall be insisted in before them to be continued in time coming , and an act to be made thereanent , and letters to be direct thereon , as was in use to be done before the year , not exceeding the rates and prices formerly exacted . and also , considering that during the power of the late usurpers , the use and custome of writing in latine was then discharged , by the pretended commissioners for administration of justice : therefore the saids lords ordain all charters , seasings , and other writes of that nature , alswell such as pass the seals , as other ways , which were in use to be formed and written in latine , to be continued in the same language as formerly , before the year . and to the effect none may pretend ignorance hereof , ordains these presents to be published at the mercat cross of edinburgh , after sound of trumpet by a macer . act anent warnings . iune th . . the saids lords ordain , that all wakenings of processes lying undiscust , be execute upon hours , against all such persons as are for the time within edinburgh , or leith , and upon dayes against all other parties within this kingdom ; and upon fifteen dayes against all such persons as are out of the kingdom . act for retaining the principal writes presented to the register , and giving forth only extracts thereof . the which day , the lords of council and session taking into their consideration , that the custom of the clerks in the usurpers time of giving back to the parties the principal bonds , contracts , and other writes , given in to be registrat , did tend to the hazard and prejudice of the leidges , and was contrary to the practise formerly observed . they do therefore ordain , that the clerks of session , and all clerks of inferiour courts and judicatories , shall henceforth keep and retain the principal writes ( for which they shall be answerable and give forth only extracts thereof as formerly , before the year . ) and ordains these presents to be published at the mercat cross of edinburgh . likeas , the saids lords require the clerks of the session to be careful in preserving and keeping all principal bonds , contracts , and other writes to be given in to them to be registrat , and that they be countable for them and for their servants , so long as they shall give them trust thereof . and that once in the two years they deliver them to be keeped by the clerk of register , with the publick records of the kingdom . act for protestation money . iuly . . the said day the lords taking to their consideration , the litigiousness , and malitiousness of some suspenders , who upon frivolous and unjust reasons and grounds , purchase letters of suspension and advocation , and will not at the day of compearance , nor on any other of the days appointed for production of the saids principal letters of suspension and advocation , produce the respective letters aforesaid , but keep the famine up , of purpose to trouble , vex , and put to farther charges and expenses , the chargers and parties persuers in the principal cause advocated to the saids lords . therefore , the saids lords ordain the several sums of money following to be payed by the saids suspenders , and purchasers of the saids letters of advocation , to the chargers and parties pursuers in the principal cause advocated to the saids lords ; and that upon their purchasing of protestation , or act of remit against the said suspenders , and purchasers of the saids letters of advocation ; viz. if the sum charged for be an hundred merks , or within the same , the sum of . lib. scots ; and if the sum be above . merks , or not a liquid sum , the sum of ten pounds money foresaid . and for every remit the sum of . lib. scots , and ordains an act to be extended hereupon in manner foresaid . act for granting commissions to debitors , who are sick or out of the countrey on the act debitor and creditor . iuly . . the lords of session considering , that in prosecution of the act of parliament of the . of iuly last , anent creditor and debitor ; such debitors as are far off the countrey , or are , or shall be disabled by sicknesse to come here , to take the benifite of the act , will be thereby prejudged of the benefit thereof , if some course be not taken to prevent the same . they do therefore impower the lord president , or the lord register , or any two of the lords of session , upon petitions , and sufficient attestations of the sicknesse of any debitor , or of their being forth of the countrey , to give commission during this ensuing vacation , to such persons in the countrey , as they shall think fit to receive the oath and declaration of the debitors , conform to the said act , and to report the same betwixt and the day of november next to come , to the clerk of register , or his deputs ( clerk to the bills ) to be recorded with others of that nature . act discharging lessons the last moneth of the session . november . . the same day the lords considering , that in the end of the session , the giving way to young-gentlemen to give proof of their literature , by making publick lessons , is greatly prejudicial to the leidges : that time which is appointed for hearing and discussing of interloquitors being taken up with the saids lessons . therefore the lords renews a former act made to the effect after-specified , in anno . and of new ordains in all time coming , that any who are to make their lessons , shall come and make them at such times of the session , as the hearing of them be not prejudicial to the administration of justice , and that none shall be heard to make such lessons any time the last moneth of of the session . act anent executors creditors . february . . the which day , the lords of councill and session considering the great confusions that arises amongst the executors of defunct persons , and prejudices sustained by many of them , in prosecution of their respective diligences , against the executors of defunct persons , and otherways , by obtaining the saids creditors to be themselves decerned executors creditors to the defunct , in prejudice of other creditors , who either dwelling at a far distance , or being out of the countrey , or otherways not knowing of the death of their debitors , are postponed ; and others using sudden diligence are preferred . in respect whereof , and for a remeid in time coming , the saids lords declare , and ordain , that all creditors of defunct persons using legal diligence at any time within half a year of the defuncts death , by citation of the executors creditors , or intrometters with the defuncts goods , or by obtaining themselves decerned , and confirmed executors creditors , or by citing of any other executors confirmed : the saids executors using any such diligence before the expiring of half a year as said is , shall come in pari passu with any other creditors , who have used more timely diligence , by obtaining themselves decerned , and confirmed executors creditors , or otherwise . it is always declared , that the creditor using posterior diligence , shall bear a proportional part of the charges wared out by the executor creditor first decerned , and confirmed , before he have any benefit of the inventarie confirmed ; and that it shall be lawful to the saids creditor to obtain himself joyned to the said executor : and ordains these presents to be insert in the books of sederunt , and to be proclaimed at the the mercat crosse of edinburgh . act anent granting of bonds be appearand heirs ; whereupon apprysings , or adjudications may follow , in prejudice of the defuncts creditors . the said day the lords of council and session taking to their consideration , the manyfest frauds and prejudices done by appearand heirs , to the creditors of their deceast fathers , or other predecessors , in their just and lawful debts : therefore , and for preventing any such fraud for the future , the saids lords declare , that if any appearand heir shall grant bonds , whereupon adjudications , or apprysings shall be deduced to their own behove ; or that the saids apprysings , or adjudications shall return before , or after the expyring of the legal reversion , in the persons of the saids appearand heirs , or any to their behoves . in either of these cases , the saids apprysings or adjudications shal no ways defend them against their predecessors creditors ; but that they shall be lyable , as behaving themselves as heirs to their predecessors by intromission with the rents of their estates , so adjudged , and apprysed ; nor shall it be lawful to them to renunce to be heirs , after such intromission : and ordains an act to be made thereupon , and to be registrate in the books of sedernut , and to be published at the mercat cross of edinburgh , act anent advocats expectants . the said day the lords of council and session understanding , that the greatest number of the advocats , and expectants , admitted since the first of ianuary , . years . are deficient , in paying of dues to the keepers of the box for the advocats : to wit , twenty merks for every advocate , and ten merks scots , for every expectant ; to the prejudice of the box appointed for the poor , and others their publick affairs . therefore the said lords ordain all advocats and expectants , admitted since ianuary , . who are deficient , in payment of the saids dues : and all others who shall be admitted , and receive the said respective priviledges in time coming , to pay the saids dues , to the keeper of the box for the time . and ordains letters of horning , and poynding , upon sex days , to be direct against the deficients ; upon a subscribed roll by the thesaurer : and ordains no suspension to passe but upon consignation . act discharging confusion the last day of the session . february . . the lords of council and session considering , how necessary it is for the advancement , and honour of his majesties service , that the judicatories intrusted in him in the principal administration of justice to his people , be attended in all their meetings , with due decencie , and respect from all his good subjects . and that the rude , disorderly , and barbarous carriage of some servants attending the colledge of justice , and others joyning with them upon the last day of the session , is dishonourable to the authority of the court , unsuitable to the gravity becoming the persons relating thereto , and un-beseeming the civility fit for such a place : have therefore thought fit to discharge , and hereby discharges all servants of any advocats , clerks , writers , or other members of the colledge of justice ; and all other persons whatsoever : that none presume upon the last day of the session , to throw , or cast any pocks , dust , sand , or stones , or to make any disorder , or to use any rude , or uncivil carriage within the session house , or in the parliament closs . certifying all such , who being servants to any members , or relating to the house , shall in any degree offend herein ; they shall suffer three moneths imprisonment , and for ever thereafter be debarred the house , and service thereof . and if they shall happen to escape the time of the committing the offence : that their masters shall be oblidged to enter them in prison in the tolbooth of edinburgh , within eight days thereafter , under the pain of two hundred merks scots : and ceritfying all such persons , who not relating to the house as said is ; shall offer to offend in manner foresaid : they shall be apprehended , and committed to waird , for the space of three moneths ; and thereafter banished the town . and that none pretend ignorance , ordains these presents to be printed , and affixed upon the most patent doors of the session house ; and to be insert in the books of sederunt : therein to remain ad futuram rei memoriam . act in favours of the keeper of the minut book . iune . . the which day , the lords taking to their consideration an overture formerly presented to them , be the advocats , in favours of iohn scot keeper of the minut book : shewing that the allowance appointed to him for inrolling of causes ; by the act of sederunt , dated the . of february . is very inconsiderable ( being only two shilling scots for every process ) and no ways answerable to his pains , and attendance thereupon : in respect whereof , and for the said iohn scot his further incouragement to continue that faithfulnesse , and integrity , whereof he hath hitherto given proof , in discharging the said trust . the lords ordain , in time coming the parties at whose desires any process shall be inrolled , or his agent , to pay to the said iohn scot , for every cause that shall be inrolled be him four shilling scots money allanerly . and ordains these presents to be publickly intimate , and an act to be extended thereupon . act concerning the buying of the citiedeal . september . . the lord president having produced before the lords , a proposition made by the town council of edinburgh , and subscribed by sir andrew ramsay provost of the said burgh , bearing as follows , viz. the lord provost having reported to the committee , that the citiedeal of leith being of late erected in a burgh of regality , which without doubt may in time prove prejudicial to this city , for many undenyable reasons . and that the honourable lord the earl of lauderdail , to whom his majesty hath granted the right of the said citiedeal , had done the honour and favour to the council of edinburgh , as to make them an offer thereof , upon reasonable terms : and that they are come that length in their treaty ; as that it may be had for lib. sterling payable in four years ; which the magistrats are not at all in capacity to raise , or make payment of , without the two third parts thereof be raised out of the chamber of imposition ; which the council thought not fit to do without the consent of the grand committee of the said imposition . and therefore desired the advice of the lord president ; and all others the members of the committee . to which report , and proposition the said lord president , sir iohn nisbet , mr. iohn ellies , and robert hay made answer : that they found his majestie 's gift so strick , as they could not of themselves , without consent of the whole colledge of justice give consent ; that any of the said moyeties should be imployed otherwise , then to the payment of debts contracted before september , . therefore the committee thought expedient , that the president sir iohn nisbet , mr. iohn ellies , and robert hay might advise concerning that scruple , and with all conveniency report , that so necessary a bargain might be brought to some conclusion : the saids lords having considered the above-written proposition in one voice do consent , and give advice , that the two third parts of the pryce of the citie-deal be raised forth of the chamber of imposition . the seall of court. november . . mr. alexander gibson produced in presence of the lords their common seal , wherewith commissions , and other papers , which went out of the countrey , use to be sealled ; which seal the lords ordain to be made use of in time coming . and ordained the said mr. alexander to make the same forth-coming to the saids lords , when ever it should be required : and ordains him to give the use of the said seal to the remanent clerks , when they have to do therewith . act against general letters . iune . . the lords considering the manyfold inconveniences arising of late from the frequent use of directing general letters , and charges summarly ; and that the same is contrary to the ancient custom , whereby they were only raised upon decreets conform : therefore the lords do hereby revive and renew that ancient custom : and enact , and ordain , that in time coming , no charges , nor letters of horning shall be direct generally , against all and sundrie ; except allanerly upon decreets conform ; purchast , and obtained be the parties raisers of the saids letters . and prohibit and discharge the writers to the signet , and the clerks to the bills to writ , present , or passe any bills for general letters , and the keeper of the signet to affix the signet to any such general letters ; unless the same be direct upon decreets , conform as said is . likeas the lords declare any such general letters that shall be raised in time coming , where decreets conform have not proceeded , with all execution following thereupon , to be void , and null , and have no affect ; but prejudice always of any general letters , or charges raised , or to be raised at the instance of his majesty's thesaurer , thesaurer depute , or others impowered for his majesti's rents , customs , casualities , or other dues belonging to the king's majesty , according as they have been in use to do . and also excepting any general letters raised , or to be raised at the instance of the lords of session , for the contribution money , payable to them , and such other general letters as are expresly warranted be the acts of parliament . and ordains an act to be extracted hereupon , and insert in the books of sederunt . act for keeping the barrs . iune . . the lords considering , what great confusion , and disorder , is occasioned by the thronging of people , of all sorts within the barrs , of the inner , and utter house , in the morning , before the lords sit down , and at twelve a clocke in the forenoon , and the prejudice arising there through ; by the miscarrying of processes . for remeid whereof , the lords do hereby discharge the macers in time coming ; to give access to whatsomever persons of whatsoever quality , within the barr of the inner-house , after any of the saids lords have entred the house ; in the morning , or after twelve a clock : till the lords be all risen off the bench , and be removed out of the house . and sicklike , that they permit no person whatsoever , to stay within the innermost-barr , of the utter-house , where the ordinary lord , and clerks do abide , neither before the ordinary lord come out after that the clerks and their servants have begun to call , nor during the time that the ordinary lord is upon the bench , neither after , untill the reading of the minut book be ended : except the persons following , viz. the keeper of the minut book , the king's solliciter , and one servant appointed by his majestie 's advocat : and that person appointed for reading the minut book , during the time of the reading of the minut book and no longer . and the macers are hereby authorized to carrie immediately to prison any person that shal be found within any of the saids barrs , during the time foresaid● certifying the saids macers , that if any of them shal be found negligent in performance of their dutie in the premisses , they shall forthwith be removed from their office. and ordains an act to be extended hereupon . act anent pro-tutors . iune . . forasmuch , as in the action of compt and reckoning depending at the instance of robert and bessie swintouns , against iames notman , at length heard before the lords of council and session ; it being questioned , and debated , how far a pro-tutor is lyable by the law , and practice of this kingdom ; whether for ommission , as well as for commission , and intromission : and the saids lords considering , that albeit pro-tutors be excusable , as to their bygon intromissions ; in regard it was not constant hitherto , how far they could be lyable : yet finding it expedient , that the foresaid question should be determined as to the future ; and the leiges no longer left in uncertainty thereanent . therefore the lords declare , that whatsoever person , or persons shall in time coming intromet with the means and estate of any minor , and shall act in his affairs , as pro-tutors , having no right of tutory , nor curatorie , established in their persons . they shall be lyable aswell for what they might have intrometted with , if they had been tutors , and curators ; as for what they shall intromet with de facto ; sicklike , and in the same manner as tutors , and curators , are lyable by the law and practice of this kingdom . and the lords declare , that they will observe this as an inviolable practice in time coming . and ordain these presents to be published , at the mercat cross of edinburgh , and an act to be extended thereupon , and insert in the books of sederunt . act ordering no sight of processes in the summer session which were seen in the winter before . november . . the lords considering , that through the shortness of the summer session , unnecessary giving out , and malicious detaining of processes , which have been seen the winter session immediately preceeding : the leiges are oftimes frustrate of justice during that session , after much charges , expenses , time , vexation , and trouble . and having it always in their thought how justice may be speedily administrat , with the greatest ease , and least expenses to the subjects . do declare , that in the future they will not allow defenders , and their procurators to see processes in communi forma , during the summer session : where the same has been seen , and returned by them the winter session , immediately preceeding : and that they will proceed to do justice therein without indulging to defenders any such sight , during the summer sessions , in the future , where there hath been no material amendments , made be the pursuers , of their summonds nor new pieces produced in the process ; to be instructions and grounds thereof : and which were not seen the winter session immediately preceeding . and ordains these presents to be insert in the books of sederunt . his majesties instructions to the commissars . february . . the lord president having received the instructions following from iohn earl of rothes his majesties high commissioner , did communicat the same to the hail lords : and that it was his graces pleasure , and desire , that the same might be recorded in the books of sederunt . the lords of council , and session , ordained the saids injunctions to be insert , and recorded in the saids books of sederunt : under protestation always , that the recording of there saids injunctions should be no ways prejudicial to the priviledge of the lords of session , or derogat in any sort from their iurisdiction in civil causes . and ordained the said injuctions after recording thereof ; to be given up , and delivered , to the archbishop of st. andrews his grace , or to any having his warrand to receive the same . and that the extracts of the saids injunctions be given to all persons who shal conceive themselves concerned therein , whereof the tenor follows . sic supra scribitur charles r. his majesty authorizes and injoyns , these following instructions , contained in five leaves , attested , and subscribed by two of the late commissars of edinburgh , for regulating the proceedings , of the commissars in their respective courts . oxford , january . . and of his reign , the seventeenth year . by his majesties command , sic subscribitur , lavderdail . instructions and rules set down , and appointed , by the reverend fathers , arch-bishops , and bishops , in this kingdom , to the commissars , clerks , procurator-fiscals , and other members of court , of the whole ecclesiastical jurisdiction ; having commission from the saids reverend fathers . . ye are by vertue of your commission , to decide , and judge , in causes concerning benefices , and teinds , in matters of scandal , confirmations of testaments , great , and small , within your bounds , all causes testamentar , and in all other matters , wherein the oath of party is required ; if the same does not exceed fourty pounds . and in all other causes wherein the parties submit themselves to your jurisdictions . . ye are to judge , in reductions , and declarators , of nullity of marriage , for impotency , or upon any other ground , or reason whatsomever . all actions of divorcement for adultery , or upon any other ground . all actions , or questions , of bastardry , and adherences , when the samine shall have a connexion with the lawfulness of marriage , or adultery ; all which are reserved to the commissars of edinburgh , and do belong to their jurisdiction , privative . but when the adherence is pursued , upon the account of malicious desertion only ; and where there is no question of the nullity and lawfulness of the marriage : the inferiour commissars may decide in the samine . . you are to proceed , in rebus levibus , not exceeding fourty pounds upon the pursuers claim , without necessity of a libelled summons : the defender being alwayes cited at several times , by two distinct warrands , and summons , to that purpose . and the case foresaid , where the subj●ct is leve , not exceeding the said sum ; you are to proceed in manner foresaid : whether the defender be pursued upon his own deed , or representing any other person , his predecessors ; in rebus levibus ; and in cases of the nature foresaid , if the claim be referred to the defenders oath ; and the defender appear , and be content to depone presently ; you are to take his declaration upon the same . and if the defender desire to see , and be advised with the claim : ye shall give him a short time to that purpose . if the claim be referred to the defenders oath ; and he appear not himself : he is to be warned again pro tertio , and cited personally to give his oath , with certification , he shall be holden as confest . in such cases of small moment , if the claim be not referred to the parties oath , nor verified in●ranter ; and the defender appear , you are to give , a short time to him , if he be conveened , upon his own deed ; to see the claim , and answer verbo . and if he be conveened as representing any other person , as executor , or intrometter ; or otherways ; you shall assign a time to the defender to qualifie , and give in his defenses in writ . . in causes of greater moment exceeding fourty pounds , and in arduis , wherein there may be difficulty , you are to proceed upon a libelled summons ; in the same manner as is prescribed in the cases above-mentioned , except only , that at your discretion , you may assign , a longer time to the defender to give his oath ; if the libel be referred thereto : and to answer verbo● or to qualifie , and give in his defenses in writ : when the libel is to be proven otherwise , and the defender is conveened , either as representing another person , or difficulty , or importance of the case doth require ; that the dispute shall be in writ . . you shall be careful that your clerks shall have and keep on book for all the ordinary dyets , and acts ; and also another book fo● acts of litiscontestation , either made in absence , or parte comparente , wherein it shall be set down , as shortly as can be , the substance of the libels and alleadgences , interlocutors , and litiscontestations thereupon ; which record shall be sufficient without necessity , either for extracting the same , or of registration , or extracting an act of litiscontestation ad longum , except either of the parties shall desire an act to be extracted ad longum ; upon the parties charges , who shall desire the same . . your clerk shall keep a register of decreets of whatsoever nature : but so that in cases of small moment , within fourty pounds ; the said decreet shall be recorded as shortly as can be . . if in any process whatsomever , the time of litiscontestation , or after the interlocutor is pronounced : and when either a term is assigned for proving the libel , or any alleadgance ; or the judge having pronounced interlocutor verbo ; or a signature , being made in writ ; is about to assign a term , the defender shall pass from his compearance : or any time thereafter post litiscontestationem . nevertheless , litiscontestation in all such processes , shall be holden and esteemed , to be made parte comparente . and in like manner , if the defender , at sentence , shall pass from his compearance ; the sentence , nevertheless , shall be given out against the saids defenders ; as compearing . . ye shall be careful , that your summons be execute , alwayes by a sufficient man ; before two witnesses at least . and that the same being returned , and indorsed , be keeped by the clerk ; in case the execution be questioned : and that ye are not to stay the proceeding of the principal cause , upon offer of improbation , of the execution : and if any execution shall be found false , and improven ; and if it shall be found , that any of your advocats , procurators , or their servants , or agents , or other persons , having interest in your courts ; have written , or caused write the saids executions , or has used , the same , and knowing them , to be false ; or are otherwayes accessory to the said folshood : they shall be declared uncapable of any office , trust , interest , or practice within the said court : without prejudice of such further censure , and punishment as may be inflicted , for the crime of falshood ; and upon the contriver , or user , or false writs . . ye shall direct precepts for summoning of witnesses , to compear before you , to be witnesses in causes : under such pecunial pains as ye shall think expedient , according to the value of the causes , and quality of the person , that bees summoned . and if the witnesses contemptuously disobey , the fines , and mulcts , to be uplifted by your officers : and they to have power to poind for the samine . and the pains shall be applyed ; the one half , for your own use : and the other half to the poor . and if the witnesses compear not for the first summons : the party to have summons , against the witnesses not compearing , under greater pecunial pains ; to be applyed at your discretion : or to raise letters upon deliverance of the lords of session , for compelling them to compear , under the pain of horning : as you shall think expedient . at the examination of witnesses , your selves shall not fail to be present : excluding all others . . you shall suffer none of the advocats , in their procuring , to use frivolous alleadgances and if they do , sharply to reprove them therefore : and , in case of not amending , for reproof , to proceed to pecunial pains : and if they persist , to deprive them . . in the advising of processes , ye are not the use the advice of any procurator , or advocat , or consult with them thereanent ; neither admit of them , to be present at the advising of the same . . ye shall tax the expenses of all pleas , of causes , where sentence is obtained , before you , and that right highly . and shall insert the same , in the principal decreet , or sentence . and the precept , to be directed out for executing of the sentence , shall contain poinding , as well for the saids expenses , as for the principal . . ye may direct your precepts , to officers of your commissariot , or officers of arms , or to the officers of provost , bailzies of burghs ; at the desire and option of the party . if any person shall deforce your officers , in execution of your precepts : ye may be judges , to all such deforcements : and inflict the like pains , as by the law may be inflicted , for deforcing of officers , of arms , excepting only the loss of deforcers , their escheat . without prejudice to the person concerned , to pursue for the same , upon the deforcement of your officers , before the competent judge . . if any temporal judge within this realm will proceed , in causes belonging to your jurisdiction : you shall direct precepts for inhibiting them , from all further proceeding thereuntil . . ye shall give forth inhibition upon teinds , great and small , as you are desired upon sight of the parties title , allanerly . . if summons of reduction , be libelled against any of your decreets , before the commissars of edinburgh : ye may cause , notwithstanding , put your sentence to execution . and if the same be not pursued , within year , and day , the party being of perfect age , and within this realm : your decreet stands unreduced . . you , and your clerk , shall reside in the place of your commissariots , under the pain of deprivation ; except by the arch-bishop or bishops , consent and license , upon grave occasion , you obtain liberty , to do otherwayes . you shall make two registers , of the testaments , to be confirmed by you . the one to be keeped by you ; and the other to be delivered , to to the arch-bishop , or bishop , yearly . . your clerk , the time of making the accompts , two times in the year , viz. the first day of may , and first of november ; shall make faith to the respective arch-bishops , bishops , or any having their order : that there is no more testaments confirmed then these , which are booked , in the books , then to be produced . . you shal give forth no precepts , in matters above fourty pounds ; untill the decreet be first extracted . . in case any of you shall happen to fall sick , and not be able to wait upon your office , or give attendance : or if it shall happen any such declinator , or exception , ( being of verity ) to be proponed against you , as might set , or decline , sheriffs or any other judge : in that case , you shall shew the arch-bishop , or bishop the samine ; who then shall deput another , who shall be most fit , and apt , to sit , cognosce , and decide , in the causes aforesaid . . ye shall find caution to compear , before the arch-bishop , and bishop , twice every year , viz. the first day of may , and november , and give just count of your intromission with the quote : where the arch-bishop , or bishop , has not a quot-master appointed by themselves . and also for payment of your contribution silver , to the commissars of edinburgh : and that under the pain of five hundred pounds , toties , quoties . . if any of you or your clerks , confirm any testaments , and make no accompt thereof , to your arch-bishop , or bishop , the saids dayes : the samine being sufficiently verified ; your office , shall thereby ipso facto , vaick . . it shall not be leisome for you , to admit any procurator , without license of your arch-bishop , or bishop , respective . but you may create , commissar-officers , that be honest , and faithful , as ye will be answerable . and your procurators , shall wear gowns in the court , as ye are appointed , and injoyned , by these principal injunctions , to do the samine your selves . and that you put the samine to execution , betwixt and the day of next to come . . the profite of all summons , sentences , transumpts , registrations , and confirmations of testaments , and registrations of all tacks , contracts , obligations , and other writs whatsomever , and extracts of the samine . as likewise the profite of the seal , and signet ; to be divided in manner following : that is to say ; the two part thereof to the commissars , and the third part to the clerk ; he always , finding paper , ink , wax , and writing-chamber . orders to be observed in confirmations of all testaments . you shall have a care , that all edicts be served generally , at the paroch churches , twice , or at least every year . and if any party shall desire particular edicts , as occasion offers : you shall cause give them forth , and the general edict to be given gratis to the procurator-fiscal . the edict being served , and the person , or persons , having best right , being decerned executors , to the defunct ; the inventary shall be given up by the executor , who shall make faith upon the truth of the samine . if the wife be deceast , and the husband give up inventary ; both of the goods , geir , and debts , owing by hi● , and to him , such debts as he gives up , and by his oath swears , to be true debts , should be deduced off the free geir alwayes , if the executor suspect any fraud , that the debts given up exhaust the free geir , and think fit to omit the samine , he may lawfully do . and thir debts are in testaments dative , only to be received as owing by the defunct , servants fe●s for a year preceeding the defuncts decea●e , duties of lands , or t●inds for a year , apothecaries drogs immediatly imployed before the defuncts decease , house-meals for half a year at most , pensions , and ministers stipends , steelbow-goods , and corns to the master : if the man , or the person whose testament is to be confirmed , give up the inventary of debts , with his own mouth , in a testament testamentar ; such debts , as they give up , must be allowed . but if there be no testament testamentar made by the defunct ; or that in the samine he has ordained his executor to give up the inventary of his goods , geir , and debts ; in that case , no debts are to be deduced ; except the debts mentioned , and contained in the immediat preceeding article . which deductions being made by the person deceast ; he leaving behind him . wife and bairns ; if any of the bairns , be unfori●familiat ; the testament is divided in three parts ; and the third part of the ●●ee geir , pays only quot . if all the bairns be forisfamiliat , the testament then divides in two : and the half of the free geir pays quot . if there be no bairns , the testament likewise is divided in two : and the half of the free geir pays quot . if the person deceast be single , and has no bairns unforisf●miliat , in that case the whole free geir pays quot , without any division . if it fall out that any challenge the geir of the defunct , by virtue of an assignation , from the defunct before his decease ; he ought , not the less , to confirm the testament : notwithstanding of the assignation . quia quoad confirmationem testament ; it is estimat to be simulat . but he may as assignay , make protestation , that the confirmation shall not prejudge his assignation , pro ut de jure . ye are to advert , that the prices of the goods , given up in testament , be estimat , conform to the common course , as they are sold in the countrey , neither too high , nor to low , in prejudice of the quot , and bairns of the defunct . let no testament be confirmed , without the oath of the executor , and the relicts oath , man , or wife , who survives other ; and if any thing shall be found to be omitted : any benefite which would have belonged to the persons omitting , of the which they had no probable ignorance ; the samine shall pertain to the arch-bishop , or bishop , or to any , to whom they shall dispone it . you shall give no license to pursue , except to poor bodies : and that for small sums , and where debts are desperate . if there be no nomination , or testament made by the defunct , or if the testament testamentar , shall not be desired to be confirmed : ye shall confirm the nearest of kin , desiring to be confirmed . and if the nearest of kin shall not desire to be confirmed ; ye shall confirm such of the creditors , as desire to be confirmed as creditors : they instructing their debts . and if● neither nearest of kin , executor , nor creditor , shall desire to be confirmed , you shall confirm , the legators , such of them as desire to be confirmed ; and instruct , that they are legators . and if no other person having interest foresaid shall confirm● you shall confirm your procurator-fiscal , datives , alwayes being duly given thereto before . and if after the saids datives , but before confirmation ; any person having interest , shall desire to be surrogat , in place of the procurator-fiscal : ye shall confirm them as executors , surrogat , in place of the procurator-fiscal . and to the effect the debts may be the better known ; ye shall call within your jurisdictions , the intrometters with the defuncts goods , and geir , ( datives being given up as said is ) to give up inventar thereof . and in case the intrometters will not compear , to the effect foresaid . then ye shall cause summond , four or five of the defuncts nearest neighbours ; and others who best knew the samine● who being sworn , shall give up inventar ; of the dead's goods , and declare the quantity thereof , under what division the samine comes , and the expense , to be made thereupon , shall be modified yearly : at the making of the accompts . that every one of you have a procurator-fiscal , who shall be an honest , discreet man , and responsal , for pursuing all common actions , and who shall be decerned executor dative , to all the defuncts , within your jurisdiction where he serves ; in case the nearest of kine of the dead , nor any other nominat executor , confirm not his testament , in due time . and ilk procurator-fiscal shall find caution that the goods he shall happen to intromet with , shall be forthcoming as effeirs : and shall make compt yearly , and payment of the saids goods , that shall happen to be intrometted with by him : to the arch-bishop , or bishop , and shall have three shilling , for ilk pound that he brings in , and makes payment of . the procurator-fiscals , shall be holden to compt twice in the year , for the diligence to be done by them , in taking up the names of all the defunct persons , within the whole parochs of your respective commissariots : wherein they shall be faithful . and if it shall be found that they have exacted money from the people , or oppressed them , or transacted with such persons as shall happen to be charged to confirm , and shall receive money from them to pass from the saids charges , or for money or good deed ; shall forbear to cause charge any such person , who ought to be charged . any such procurator-fiscal so doing ; the samine being sufficiently proven , shall be deprived from his office . that all persons , named , or to be named executors , to any defunct ; shall confirm their testaments within three moneths , after the defunct's death , at farthest . if any person shall be decerned executor to a defunct , when he compears not personally , by reason of sickness , or upon any other reasonable occasion : and craves a commission to take the executors oath . ye shall not grant any commission for that effect , without the ministers testificat , of the parties inability , and knowledge , and consent , of the arch-bishop , and bishop . when an edict is execute to a day , and the party compear and desire to be decerned , executor , and crave a day , to give up inventary , and confirm : ye shall continue the decerning of the party as executor , until the day , that he should confirm ; to the end all may be done , simul & semel . you shall not suffer testaments to have faith , or any thing contained in them , without confirmation , ye shall not suffer an e●k of testaments to be made , exceeding● the third of the inventary , and that but once , without knowledge of the arch-bishop , or bishop . that the inventar be likewise given up , as they were the time of the defuncts decease . and twelve pennies of every pound of the deads part , shall be the quot of all testaments , both great and small , which shall be confirmed ; as well of the testaments , dative , as others . and the mitigation , and composition of the samine quot , shall appertain to the arch-bishop , or bishop , to whom it belongs alanerly : if need beis . institutions to the clerk. ye shall have two register books , one for the acts , and sentences , and another for the testaments . which book of the testaments , shall be marked by the hand of the arch-bishops or bishops , or bishops clerk : and when the samine are filled up , to receive a new book , besides your book of registration . ye are all of you , both commissars , clerks , and fiscalls , to serve the leidges thankfully : at the rates , and prices which are to be settled , by the arch-bishops , and bishops . we have considered the abovementioned instructions , contained in these five preceeding leaves . and to conceive that it is fit , that the same be authorized and injoyned , for regulating the proceedings of the commissars ; in their respective courts . sic subscribitur , io. nisbit . io. baird . act against decreets , for not reproduction of c●ssiones bonorum . november . . the lords considering , the great abuse lately crept in , under the colour , of the act , ordering decreets for not reproduction of process : to extract decreets of bonorum , which was never the lords meaning , to extend the foresaid act , to any summons of bonorum . therefore the saids lords , for rectification of the foresaid abuse : discharge the granting of any decreets for not production , in time coming ; in so far as relates to actions of bonorum : at the instance of any debitor , against his creditors . but ordain the pursuer to complain to the lords , in presentia , in communi forma , for keeping up of processes , of that nature : and discharge the lord ordinary , in the outter-house , to decern in any such causes : but that they be all advised , and decerned , in presentia . his majesties letter to the lords concerning prizes . ianuary . . follows the tenor of the letter , superscribed thus ; charles r. right trusty , and right well beloved cusing and councellour , right trusty , and well beloved councellours , and trusty and well beloved : we greet you well : we have been often troubled , with complaints from strangers , in amity with vs ; and others , concerning the prizes taken by our private men of war , in that our kingdom , and sentences pronounced by our high court of admirality there : and whereas we understand , that ye by our law , are authorized to be supream iudges in all these cases : we do hereby require , and authorize you , to think , and conclude on such orders , as shall be necessary for bringing before you , and deciding all these causes in a summar way : and that ye proceed with all expedition ; in respect the persons concerned , are , for the most part , strangers . and their ships , and goods , being apt to perish ; their prejudice may be irreparable ; if they have not summar iustice. and we do most particularly recommend to you , the subjects of the kings of spain , and sweden , with whom we have particular treaties , which we shall send to you : and w●ose ships , and goods are to pass free ; they having such passes , as are agreed upon , of which , we did send copies to our privy council ; and so we bid you farewell . given at our court at whitehall , the twenty seven day of december , one thousand six hundred sixty and six . and of our reign , the eighteen year . by his majesties command , subscribed thus , lauderdail . vvarrand for general letters , for the contribution due out of benefices to the lords . november . . the lords have ordained , and hereby ordain , letters , and executorials of horning , to be direct at the instance of these ordinary lords ; who have been admitted , since iune . or shall be admitted hereafter , against the arch-bishops , bishops , priors , heretors , liferenters , feuars , farmers , tennents , and tacksmen of the prelacies within this kingdom : for payment to them of their respective proportions , of the contribution money , payable out of the saids prelacies , and allocat to their predecessors : in whose place they have succeeded , by an act of sederunt , of the date , the . day of iune . and a roll subjoyned thereto ; containing the particular division , of the contribution money amongst the saids lords , and that for all years and terms , since their admission , and entry , and yearly and termly in time coming . oaths to be taken for the price of fowls . ianuary . . the which day , it being represented to the lords , that the magistrates of edinburgh , desired to know , whether they might warrantably exact the oaths of the poultrie-men , and in-keepers , concerning their contravention , of the acts lately made for the price of fowl drest and undrest . the lords finds that the magistrates of edinburgh , may and ought to exact the oaths , of the contraveeners of these acts , either the poultrie-people , who sell the fowls undrest , or in-keepers● who sell them drest . and recommend to the magistrates to be careful , in the speedie , and exact execution of these acts. act anent extracts of registrate writs bearing the procurators named though not subscribed . december . . the lords of council and session , do grant warrand to the lord register , and the clerks of session ; his deputes to registrate such bands , contracts , and other writs , as shall be given in to them to be registrat , and therein to insert the consent of advocats , as procurators to the registration : as they were in use to do formerly● and accordingly to give out extracts thereof , notwithstanding that the advocats do not subscrib their consent . and appoints this warrand to continue untill further order . likeas , the lords declare , that any extracts given out by the clerks , in manner foresaid ; since the first day of november last are warrantably given : and cannot be quarrelled upon that ground , that the advocats consent to the registration is not subscribed . act anent extracting acts and decreets . ianuary . . the lords enacted and ordained that no act , or decreet , done either in the inner or utter-house shall be extracted untill hours elapse , after the same is read in the minut book . act against magistrats of burghs , forletting prisoners for debt go out of the tolbooth . iune . . the lords considering , that albeit by the law , magistrats of burghs , are oblidged to retain , in sure warde and firmance , persons incarcerat in their tolbooths for debt . yet hitherto they have been in use to indulge prisoners , to go abroad upon several occasions . and it being expedient , that in time coming the foresaid liberty , taken by the magistrates , of burghs should be restrained ; and the law duely observed . therefore the saids lords do declare , that hereafter it shal not be lawful to the magistrates of burghs , upon any occasion whatsomever , without warrand from his majesties privy council , or the lords of session to permit any person incarcerat in their tolbooth for debt , to go out of prison , except in the case of the parties sickness , and extream danger of life : the same being always attested upon oath , under the hand of a physician , chirurgion , appothecary , or minister of the gospel in the place : which testificat shall be recorded in the town court books . and in that case , that the magistrats allow the partie only liberty , to reside in some house , within the town during the continuance of his sickness : they being always answerable that the partie escape not . and upon his recovery to return to prison . and the lords declare , that any magistrats of burghs who shall contraveen the premisses , shall be lyable in payment of the debts● for which the rebel was incarcerat : and appoints this act to be intimat to the agent for the royal burrows : and to be insert in the books of sederunt . his majesties order to the commissioners of his thesaury to free the lords from the cess . iuly . . charles r. right trusty and well beloved cusing and counciller , right trusty and well beloved councillers , and trusty and well beloved , we greet you well . vpon the humble desire of president , and senators of our colledge of iustice signified unto vs by our secretary . we have thought fit to express our so great tenderness of their priviledges , as to discharge the president , and all the ordinary lords of session , of their proportions of the currant supply granted unto vs , by the late session of our parliament ; although they gave their bond for the same . therefore our pleasure is , and we do hereby authorize you to give command nor to exact any of the said supply from the proper states of the said president , and ordinary lords of session , but that the same be discharged . and if any part thereof be already collected , that it be payed back to them respectively ; for which this shall be your warrand . and so we bid you heartily farewell . given at our court at windsor casile the day of iuly , . and of our reign the year . subscribed thus by his majesties command lauderdail . act for keeping the barrs november . . the lords of council and session considering , that there is great disorder and confusion occasion●d by the thronging in of the advocats men , and others upon the clerks , and their servants in the utter-house before the ordinary lord go to the bench. and after twelve a clock at the reading of the minut book : for remeid whereof , they ordain the minut book in time coming to be read in the nethermost end of the loft appointed for the advocats servants . and prohibit and discharge all advocats servants , and other persons , who are not licenced , and allowed to enter , or remain within the innermost barr of the utter-house , where the clerks , and their servants stays ; under the pain of three pounds scots , to be applyed the one half for the use of the poor , and the other to the macers . and to be further censured by imprisonment , or otherways as the saids lords shall think sit . and to the end the said act may be more duely observed . the lord do ordain , authorize and require the macers to exact the said ●ine of three pounds , scots , from any person whom they shall find within the said barr. and in case the party refuse to pay the same : that they carry them to prison , untill they make payment thereof . certifying the saids macers , that if upon delation of them , by any of the clerks , they shall be found negligent in performing of what is hereby enjoyned to them , they shall be fined in the said sum of three pounds scots : and imprisoned during the pleasure of the lords . and this sentence to be inflicted upon the macers , or other transgressors of this act , as oft as they shall be found to contraveen the same . act concerning priviledged summons . iuly . . the lords considering , that divers summons as declarators , and others , which by the constant from and practice of this kingdom , did always abide . days warning , have of la●e been execute sometimes upon six days , as being priviledged by deliverance of the lords upon bills given in for that effect ; and seeing these bills being d●awn and given in by writers to the signet , do passe of course without perusal , or consideration thereof , by the ordinary , which hath given occasion to the foresaid abuse . and finding it expedient , that it be determined for the future , what summons shall be priviledged : therefore the saids lords do ordain , that in time coming , all summons shal come in upon days warning . and that none be priviledged by the lords deliverance , or otherways , except these following , viz. removings , recent-spulzie , and recent ejections , where the summons is execute within days after the comitting of the deed intrusions , and coming in the vice , causes alimentary , exhibitions , summons , for making arrested goods forthcoming , transferrings , poyndings of the ground , waknings , special declarators , suspensions , prevento●s , and transumpts . and that recent-spulzies , ejections , intrusions and succeeding in the vice be execute upon days : and that all the rest of the foresaids summons be execute upon six days : and that the second citation be likewise upon six days . and it is further declared , that all the summons above-mentioned shall be priviledged as a foresaid , whither the summons bear a priviledge or not . and the lords do hereby prohibit , and discharge the writers to the signet , to write , form , or present to the clerks to be put in any bills for priviledging any summons , but these above-expr●st ; certifying such as shall coutrav●en , that for the first fault they shall be fyned in one hundred merks scots , to be applyed for the use of the poor : and for the second fault , they shall be deprived of their office. it is always hereby declared , that this act is not to be extended to summons execute against persons inhabitants of the burgh of edinburgh , or the contiguous suburbs thereof , who may be summoned by the second citation , upon hours , conform to the custom formerly observed . act anent payment of dues for summons containing two dyets . iuly . . forasmuch , as the lords , after mature d●liberation , did think fit , that the former custom of continuing summons , and taking out of act and letters thereupon , in all such causes , and processes , as formerly did require and abide continuation , should be laid aside in time coming . and that in place and lieu thereof ; the summons in all process of the nature foresaid , should contain two distinct warrands , for citing the defenders at two several times , and to two several dyets , and dayes of compearance with the same certification as before was usual ; and contained in the first and second summons respective . and that proc●ss●s should be granted in the causes foresaids , upon summons containing the warrands above-mentioned , and execute conform to the same , as formerly was granted upon summons , act and letters . and upon an overture given in , and approven by the lords of articles . an act of parliament hath followed , and is made to that purpose . as the act of parliament intituled act discharging second summons , at length proports . and seing the lords of session , when they had the said alteration of the former custom , under their consideration , thought it no ways reasonable , that thereby , either his majesties secretary , or the clerk of register , or the ordinary clerks of session , his deputes should be prejudged of their dues , and profits formerly belonging to them respective . and in regard , the summonds which are to contain the said distinct warrands for citation , are in effect , and upon the matter , two several summons , and are equivalent to summons , acts and letter , and have the same effect to all intents : and the profits formerly arising from all acts of continuation , and letters thereupon , are a considerable part of the dues belonging to the lord secretare , lord register , and his deputs , for their incouragement , and service in their respective offices● and upon the considerations foresaid , it was resolved . that notwithstand , ing , the said alteration , the same should be continued , and secured to them , in manner after mentioned . therefore , and in order to their satisfaction : the lords of session does statute and ordain , that for the signing of all summons , which formerly did abide continuation ; and in lieu thereof , shall now , and hereafter continue the said warrands for two several citations , the keepers of the signet shall have , and may take as much as formerly he might have taken , both for summons and letters , while the same were signeted a part . as also it is hereby appointed , that all the saids new summons , containing two distinct warrands for citing to the defenders two dyets be subscribed by the clerk of register , or in his absence , by one of his d●puts , or the ordinary clerks of session , who at the subscribing thereof , are to receive for the same , the dues formerly payed , for act , and letters . and the lords do hereby discharge the keeper of the signet to affix the signet to any of these new summons , for two , or more citations , but such as shall be subscribed by the clerk of register , or his deputes , as said is : and that no process be granted upon auy such summons unlesse they be subscribed by them in manner foresaid . act concerning bankrupts . ianuary . . forasmuch , as by an act of sederunt , of the february , . it is satute an ordained , that all decreets of bonorum in time coming , should contain a clause , ordaining the persons , in whose favour the bonorum should be granted : to take on , and weare the habit of bankrupts . which is a coat , or upper garment , which is to cover the parties cloaths , body and armes : whereof the one half is to be of a yellow , and the other half of a broun colour , and a cape , or hood , which they are to wear on their heads , partie-coloured , as said is , which habit , they are to take on , before they come out of prison , and come out with it upon them . and that it shall be lawful to the creditors , to seiz upon , and imprison any of them , who shall be found wanting the foresaid habit . and the lords considering , that this course , for preventing , and punishing of bankrupts , hath through the in-observance of the same , proven ineffectual , as to the designed end of the same , do therefore statute , and ordain , that all decreets , of bonorum , and charges to put at liberty , to be raised thereupon , shall thereafter contain the hail tenor of the act of sederunt above-written . and that the magistrats of burghs shall not put out the partie in whose favours the decreet , and letters are granted , untill first they put on the habit , and come out of the tolbooth , betwixt . and . a clock in the fore-noon , with the habit on them , as is prescribed by the act. and ordain the clerks of the session , the keepers of , and writers to the signet ; and others having interest , to be careful , that this act be punctually observed . and ordain a coppy thereof to be delivered to the baillies of edinburgh , to be registrate in their books , and keeped for the entry , and liberty of prisoners in their tolbooth . act ordaining advocations , or suspensions , of processes for conventicles to be only past in presentia , or by the three lords in vacant time . iune . . this day the lords ordained , that no bill of advocation be past of any processes depending before the sheriffs and other judges ordinary , against persons guilty of keeping conventicles , unless the same be past in presentia , during the sitting of the session , or by three lords met together in time of vacancie , and that no supension be past of decreets given upon those processes , except upon consignation of the sums decerned , or in presence of the whole lords , or in time of vaca●cie by three lords . and appoint intimation hereof to be made to the clerks of the bills . letter anent prizes . iuly . . this day the lord chancellor produced , in presence of the lords , a letter directed from the duke of lauderdail lord secretary , by his majestie 's command to the lord chancellor , president , and remanent senators of the colledge of justice , which letter being read in presence of the saids lords : they ordained the same to be recorded in the books of sederunt , whereof the tenor follows . for the right honourable . the earle of rothes lord chancellor of scotland , sir james da●ymple of stair president of the colledge of iustice , and the remanent senators thereof : whitehall , iune . . my lords , since the receit of yours , of the . january , i have been using my best endeavours to know how to satisfie your lordships desire therin . and now having acquainted the king t●erewith , in presence of divers of his council here ; i am commanded by his majesty , to let you know , that the treaty of breda is certainly void by the war : and that no ally can claim any benefite thereby , when they carry any provision of victual , or other counterband goods to the ports of our enemies , or when they have goods belonging to enemies on board . as to the other part of the letter , it was deliberatly thought fit in the council of england , that any number of the dutch nation being found aboard , should not confiscat ship and goods , as it did during the last war , and therefore , that article was kept out of the rules , which were given to the court of admiralty here in england . but if any part of the ship belong to any inhabiting within the dominions of the states-general ; the whole both shipe and goods are to be declared prize , and if the master have his residence in holland , you are left to judge in this case according to law , and as you shall think just . i have likewise communicated to the king your answers to the swedish envoys memorial . and to the complaints of the king of polland , and the city of danzick , which did give a great dale satisfaction to his majesty , and severalls of his privy council there , who were present● and coppies of them were sent unto sweden . i am , my lord , your lordships most humble servant , sic subscribitur lauderdail . act for ordering new hearings in the vtter-house . iuly . . the which day , the lords ordain any lord , who is to hear a cause debated in the utter-house , before the lord ordinary come forth ; shall go to the bench , and call the said cause at a clock in the morning : and ordain the advocats , clerks , and macers , to be present , and attend at the said hour : and if no procurators be present , for that partie , that seeketh calling ; yet the said lord shall proceed , in making act or decreet ; and the said cause is not to be heard any more thereafter . and if none be appearing for the other partie , at the said hour , or when the cause shall be called : then that parties procurators are not thereafter to be heard by the said lord , except the said party , or his procurators give in two dollers to the poor's box. and ordain this act to be recorded in the books of sederunt , and intimate to the advocats in the utter-house . letter from his majesty against appeals . iune . . this day the lord thesaurer deput produced , in presence of the saids lords , a letter , direct from his majesty , to the lord chancellor , lord president , and remanent senators of the colledge of iustice. whereof the tenor follows . charles r. right trusty aud well-beloved cusing● and councilers , right trusty and well-beloved council●rs , aud trusty and well-beloved . we greet you well , we received your letter of the february , last , with an accompt of these appeals , given into you by the lord almond , and earl of aboyne , but could not then return any answer , the session being up . and now upon full consideration of that whole affair , we find it indispensably necessary , for our service , and the mentainence of our authority , and for the quiet and security of our subjects in their fortuns and estates , that the honour , aud authority of our colledge of iustice be inviolably preserved : and that there be an intire confidence in , and def●rence to all the decreets and sentences thereof . and after the laudable example of our royall progenitors ; we do assure you , that we will constantly mentain our authority exercised in that court , against all incroachments , indignities and reproaches , that may be attempted against the same , or against any of the lords of session , whom we shall always cause to be held in special honour , as these who represent our person , and ●ear our authority . and as we cannot but declare our dis-satisfaction with , and abhorance of these appeals : so it is our express pleasure , that special care be taken to prevent the like practices for the future ; and for that effect , that you cause solemn intimation to be made , to all advocats , clerks , writeres and others , who are members of , or have dependence upon the colledge of iustice , and others whom it may concern , that none of them presume to advise , consult , propose , plead , speak , or suggest any thing , that doth import the charging of any of the decreets , and sentences of the lords of session , with in-justice , whether in the terms of appealls , protestations , supplications , informations , or any other manner of way , either publickly , in the exercise of their function , or privately in their ordinary conversation with their clients , or others , under the pain of being utterly excluded , from exercising any office , in , or , depending upon the colledge of iustice : and that all advocats to be admitted hereafter have the same declared to them , as a part of the oath de fid●● , and obedience to the lords , which is ●e●customed to be given by advocats at their entrie . and we are graciously pleased , that you proceed no further against those who gave in these late appealls , nor ●ga●st these advocats , who refused to give their oaths concerning their accession thereto , providing these advocats do som●nly disown these appealls , and all other appealls , and protestations , which may any way import a charging of the sentences of the lords , or their in●e● locutors with un-justice , and in case they refuse to disown the same , we peremptorlie command you to debar them from the ex●rc●se of any part of their function as advocats in time coming . and we do authorize● and strickly command you to declare any membe● of the colledge of iustice , or others , who depend thereupon , who shall not give ob●d●ence in the particulars above-mentioned , incapable to exerce any office in , or depending upon the colledge of iustice : and for the better discovering cont ivances , you are to receive no supplications , but such as are signed by an advocat . as also you are hereby required , if need bees , to put all who depend upon the colledge of ●ustice to give their oaths , as parties , or witnesses for d●scovering the contrivances : and in case any other , having no dependence upon the colledge of justice , shall present any thing expressing , or importing the cha●ging of any of your sentences , with injustice in the terms foresaid , or any other way . we do auth●rize , and command you , that you do immediately secure their pers●ns , if they be pres●nt , and if they be absent , that you isue forth charges , and all other execution against them for that effect , and that you give an accompt thereof to us● that we may signifie our further pleasure therein . for doing of all which , this shall be your sufficient warrand . and so we bid you heartily farewell . given at our court , at whitehall the may , . and of our reign the . year . sic subscri●itur , by his majesties command lauderdail . iuly . . act concerning acts before answer . the lords considering , that in several cases , they are in use before discussing of the relevancy of the points debated , to ordain the parties pursuer , or defender , or either of them , to produce writs , or to prove certain points of fact , that they may have the whole matter intirely before them , both as to the relevancy , and probation ; whereupon acts are extracted : which are called acts before answer . and in reguard questions do , and may arise , concerning the import and effect of such acts , if the parties be thereby so concluded , as they may not thereafter propon new alledgances ; and what terms , and dyets should be allowed for probation : and seing it will be a great prejudice to the leiges , if after acts extracted , and probation led thereupon , parties , or their pocurators should be permitted to to offer new alledgances , not formerly insisted on in the act : for probation whereof , new terms behoved to be asigned , and thereby processes would be drawn to a great length . therefore , the saids lords do ordain the parties procurators to propone all their alledgances in the cause before , or at the time of pronouncing these acts , before answer . and declare , that after these acts are extracted ; they shall not be heard to propone any new alledgances which were competent , but omitted to be proponed when the act was pronounced . and the lords declare , that , where the parties pursuer , or defender are , before answer to the relevancy burdened with the probation of any point : they shall have the same terms , or dyets , for probation thereof , as by the constant practice is allowed to pursuers for proving their lybells , when the same are admitted to their probation ; but if in the same acts , any point be found relevant , and admitted to probation : that the parties pursuer , or defender to whose probation the same is admitted , shall have the same dyets for proving thereof , as are allowed to them respectivè , in acts of litis contestation . but after the probation upon the saids acts is closed , they shall not be admitted to adduce any other probation , of any points formerly alledged in the act. and further , the lords declare , that where any alledgance , or reply is founded upon writs , and that before answer there to , the writs are ordained to be produced , in case the party burthened with the producing of these writs shall fail therein and thereupon the term shall be circumduced against him , that the alledgance , or reply in the case foresaid shall be holden as not proponed . act for tryall of those presented to be ordinary lords of session : iuly last . the lords considering , that the king' 's , majestie , by his letter , may . last , did require them , to present to his majesty , what tryal they should think best and firest to be taken , for cognoscing the qualifications , and sufficiency of such persons , as his majesty shall hereafter nominat to supply any vacant place in the session , and the saids lords , in answer thereunto , having offered their humble opinions . that thereafter , when any new lords of session shall be presented by his majesty , for tryal of their qualifications : they shall sit three days beside the ordinary , in the utter-house , and shall have inspection of the said processes , which shall be carried to interlocutor ; and shall make report of the points taken to the interlocutor , in presence of the whole lords . as also for compleating their tryal , they shall sit on day in the inner-house , and after any dispute is brought to a period , and the lords are to advise the same , in order to the pronouncing their interlocutor ; they shall resume the dispute , and first give their opinion there anent , in presence of the whole lords . likeas , his majesty by his letter , of the . of this instant , having approven the foresaid rule offered , for the tryal of such as shall be presented by his majestie , as ordinary lords of session , and appointed it to be entred in the books of sederunt , for that purpose . the said lords , in obedience to his majesties commands , do ordain the same to be observed , as the constant rule in all time coming , for tryal of such persons , as shall be presented by his majesty to be ordinary lords of the session . and ordain these presents to be recorded in the books of sederunt . ianuary . . this day compeared personally , george marque●s of huntly , in presence of the lords , and declared , that he having given commission to divers of his friends , for managing his affairs during his absence forth of the countrey , who , as he was informed had given in an appeal in an action pursued in his lordships name against gordon of carnborrow ; and craved that in regard he doth passe from the said appeall , that warrant might be given to deliver up the same to him . which desire the lords granted . act concerning prisoners for debt . february . . there being an address made to the lords of council , and session by the keeper of the tolbooth of edinburgh , representing , that persons imprisoned in the said tolbooth for debt , upon captions , having obtained discharge of the debt , are pressing to be liberat , upon production of the discharge , without a charge to set at liberty , which he refuses to do , al●●it the same be usually done , by the keepers of other tolbooths . and particularly , by the jailor of the tolbooth of the canongate ; and therefore d●siring , that the lords would allow him the same priviledge , which is assumed by the jailor of the tolbooth of the canongate , or otherways to determine what both of them ought to do herein . and the saids lords having taken the general case to their consideration , and finding , that where the debt , for which persons are incarcerat , is in-considerable , the expenses of procuring ● charge to set at liberty will sometimes near equal the debt it self , the prisoners being also poor , and not able to satisfie the saids expenses ; therefore , the saids lords do authorize , and allow the magistrates of burghs , to set at liberty out of their tolbooths , persons imprisoned for debt , by vertue of letters of caption , upon production of a sufficient discharge of the debt , granted by the creditor , at whose instance they are incarcerat , bearing a consent to the debitors liberation , and duly registrat , if the sum do not exceed two hundred merks scots , and the prisoner be not arrested at the instance of other parties , the magistrats , or keeper of the tolbooth , being always careful to keep an extract of the said discharge ; and finds no necessity , in this case of a charge to set at liberty . but if the sum , for which the debitor is incarcerat , exceed two hundred merks scots , the lords discharge the magistrats of the burgh to liberat him out of prison , without a suspension , and charge to set at liberty under his majesties signet . february . . act anent bills of suspension . the lords finding it expedient , that some setled rule , and order be set down , concerning the presenting and passing of bills of suspension ; that any abuses which of late have creept in , may be prevented in time coming , do ordain : that hereafter , in time of session , no bill of suspension shall be presented to any lord to be past , but to him who shall be ordinary lord for the time upon the bills , and that both in time of session , and vacancy , the ordinary shall continue upon the bills , from tuesday to tuesday , in the inseuing week . and ordain the bills to be presented only by the clerk of the bills , or his servant ; and when the bill of suspension shall be presented , if the ordinary , after the perusal thereof , find the reasons relevant , and sufficiently instructed , that he passe the bill . and in case application shall be made to him by the other partie concerned , for a hearing ; the ordinary shall writ towards the foot of the bill ; that before the bill of suspension be expede , and go to the signet , the other partie shall see and answer , and in that case he may stop execution for sometime , not exceeding a moneth from the time of presenting the bill . and if the ordinary shall re●use the bill of suspension , he shall mark upon the back of the bill with his own hand , that the bill is refused , in respect the reasons are either not relevant , or not instructed ; which bill the clerk is thereby ordered to keep , and mark with his hand , upon the back thereof , what writs are produced for instructing the bill . and if the same bill , or any new bill of suspension upon that matter shall be desired to be presented to another lord being ordinary for the time , the clerk shall present to the ordinary , the bill of suspension which was formely refused . in which case the ordinary is not to passe the bill , untill it be presented to the whole lords in time of session , or to three lords met together in time of vacancy . act ordaining processes after avisandum to be carried to the ordinary that same day , and reported in his week . iune . : the lords considering , the inconveniences arising from the giving up of processes to parties , or their advocats , after the same are taken to interlocutor , the reporting of causes being thereby much delayed , and it being contrary to the ancient custom ; therefore , the saids lords ordain , that in time coming , after any cause is dispute before the ordinary , in the utter-house , and an avisandum made therein to the lords , that the process shal that same day be carried by the clerk , or his servants to the ordinary , that he may peruse the same , and that he may endeavour to report to the lords , the points taken to interlocutor the next day thereafter ; or at fardest once in his week . and the lords discharge either the ordinary , or the clerk to give up , or lend out to the parties , or any person for them , the processes , or any part thereof , after an avisandum is made therein to the lords , or when the ordinary shall call for the process , to consider it himself . and if any act or decreet pronounced by the ordinary shal be stopped upon the desire of any of the parties , for a new hearing , that the lord who formerly hard the cause , shall go to the bench in the utter-house , betwixt . and . a clock in the morning before the ordinary come out , and call , and hear the parties procurators , wherein the lord was ordinary the immediat preceeding week shall have the preference before any other lord , who was ordinary in any of the former weeks . likeas , the lords discharge any writen dispute upon bills of suspensions , or advocation , but where the ordinary upon the bills , shall think fit to allow a bill , to be seen , that he call the parties the next day and hear what they have to say , viva voce , without taking in written answers . hugh riddel sent to the pla●tations . iuly . . the which day , anent the petition given in to the lords , by iohn riddel merchant in edinburgh , shewing that , heugh riddel , the petitioners only brother , having committed an unexcusable crime ( whereat the supplicant blushes ) in cutting some silver-buttons off a gentle-mans cloaths , in the utter-house , during the time that the lords were sitting ; and being therefore committed to prison , the saids lords have most justly ordered him this day to be brought by the publick executioner , from prison , to the great door of the session house , at . a clock in the forenoon , and to stand till . a clock , with a paper on his fore-head , expresing the crime whereof he is guilty : and thereafter to be taken by the foresaid executioner to the trone , and there to stand with that paper on his forehead , from ten to eleven a clock : which sentence , the supplicant acknowledgeth to be less then the said hugh riddel deserveth ; only he being a young man , and related to honest parents , and the supplicants brother , and never known to have been addicted to any such base acts formerly : albeit the petitioner and his friends , are ashamed in his behalf , to plead any exemption from his deserved punishment , which his riper years may cause him detest and abhore , as an offence to the saids lords , and scandal to his friends , and prejudice to the party offended : which the said party offended , willingly forgiveth , out of respect to his friends . therefore humbly desiring , that the saids lords , for preventing such a publick stain upon the petitioner and his friends , by the said publick disgrace upon a youth of his years , would be pleased to 〈◊〉 his sentence , as to the way and manner of the disgrace , and infamy , by 〈◊〉 his imprisonment upon the supplicants charges , till there be an occasion for transporting of him beyond seas , or where the saids lords shall judge convenient , whether by way of banishment , or otherwise , during then pleasure , for which effect the supplicant shall be obliged by bond , if the lo●ds shall require the same : and in the mean time , to be favourably pleas●d to discharge the execution of the said sentence . which supplication being considered by the s●ids lords ; they by their deliverance thereupon , of the . of thus instant , granted warrant to the magistrates of edinburgh , to continue the execution of their sentence , pronounced against the said hugh riddel , until vvednesday the . of this moneth : betwixt and which time , if he should find sufficient caution , to conti●●e in prison upon his own charges , until an occasion shall offer for his transportation , to his majesties plantations in america , and that he shall then remove to the saids plantations , and not return to this kingdom , under the pain of five thousand merks , scots money , to be disposed of as the saids lords shall think fit , in case he contraveen : in that case , the lords declare , they will dispense with the execution of their former sentence : and if caution were not found , to the effect foresaid , betwixt and the said day , they ordained the former● sentence to be then put in execution . likeas , this day the lords having considered a bond of cautionry produced , subscribed by the said iohn riddel , dated the . day of this instant ; and finding the same to be conform to their foresaid deliverance : therefore they have dispensed , and hereby dispense with the execution of their former sentence , pronounced against the said hugh riddel , upon the . instant ; and grants warrant to the magistrates of edinburgh , to deliver the person of the said hugh , to the said iohn riddel , when he shall desire him , in order to his transportation . act anent passing of bills for liberty out of prison . iuly . . the lords considering , that oftentimes , where parties have done ultimate diligence against their debitors , by apprehending them with caption , and incarcerating them : bills of suspension and charges to set at liberty are presented , and past in favours of these persons , without the knowledge of the creditors , at whose instance they are incarcerat , and to their great prejudice , thereby frustrating the diligence done by them : for remeid whereof , the lords ordain , that in time coming , when any person intends to give in a bill of suspension , and charge to set at liberty , that he shall make previous intimation of the same , to his creditor , at whose instance he is incarcerat , or arrested in prison , personally , or at their dwelling place by a nottar , before witnesses , mentioning the time when the bill shall be presented , in case the creditors be within the kingdom for the time : and that the instrument of intimation to the creditors , under the nottars hand , be produced , with the bill of suspension , and charge to set at liberty , when the same is presented to the ordinary upon the bills : otherwayes that the bill be not past . and the lords ordain the intimation to be special , in the time when the bill shall be presented , being within the latitude of a week , that the creditors may be at a certainty , when to attend the same . act concerning the granting of protections . february . . the lords considering , that divers persons who are under the hazard of caption for debt , pretending that they are cited to bear witnesse in processes , depending before the lords , do upon production of a charge given to them for that effect , under messengers hands , procure warrants from the lords , to discharge the execution of letters of caption , and acts of warding , against them for some time , albeit they be not made use of as witnesses ; but only the said charge impetrat by them from a messenger , that they may obtain the foresaid warrant . for remeid of which abuse , the lords declare , that in time coming , they will grant no warrant for stopping of execution , of letters of caption , or acts of warding upon that ground , that the craver thereof is cited as a witness in a process , unless , with the petition , there be given in a declaration under the hand of the party pursuer , or defender , who adduces the witnesses , bearing , that the person who desires the said warrand is really cited at his instance as a vvitness , and that he is a necessary vvitness : and the lords declare , they will fine the party who gave the said declaration , if at the conclusion of the cause , it appear that there was collusion in giving the same ; it being only done , that the said person might obtain a personal protection . his majesties letter concerning the clerks . iune . . charles r. right trusty and well beloved cousins and counsellers , right trusty and well beloved counsellers , and trusty and well beloved , we greet you well : we have often evidenced our affection to , and care of you , the senators of our colledge of iustice ; and as vve have trusted you with the distribution of iustice , and the preservation of the rights and properties of our subjects in that kingdom , according to law ; and are very confident of your equal and expedite procedor in iustice , to all our subjects , which is the most acceptable service you can perform to vs : so vve will suffer none of our subjects to reproach your procedor ; much lesse these who serve before you , and by your favour and vvarrand , have the priviledge to procure and plead for others , who ( if they should be permitted to defame your sentences ) might prove the unhappy instruments to lessen the honour and confidence which hath been alwayes attributed to that senate by natives and strangers , and might diffuse the leaven of male-contents amongst our people , as if their rights and interests were not securely lodged ; and thereby make them more capable of evil impressions , and desirous of change . and we do require you by all means to suppresse and prevent all mutinous courses , which you have prudently adverted to , and obviat by your act of sederunt , of the th . of january last , wherewith we are very well satisfied . and we do leave the advocats , and others of the colledge of justice , to be ordered by you in all things relating to their imployments . and we do further require you to prevent and punish all conbinations , and unwarrantable correspondences amongst advocates , whereby they may forbear or refuse to consult , plead , or concur with these who did so faithfully adhere to our service ; and did continue in , or early return to their station ; and as further evidences of our royal favour , we do ordain , that the three clerks of session , who do expede your decreets , shall be nominate by the senators of our coledge of iustice , in all time coming ; and that they be subject to their sensare , and that the clerk of register give them deputations from time to time : and in case of vaiking of the clerk of registers off●●● , we do authorize the saids clerks of session , to act by your warrand , as they shall be ordered by you , without prejudice , to the clerk of register , of all other benefite , and emolument belonging ●o , or depending upon that office. and it is our further pleasure , that in all time coming , there be only three ordinarie clerks of session , besides the clerk of the bills , according to the ancient constitution , and that of the number that now serve you , make choice of three that shall still serve ; and that you modifie such satisfaction , to be payed by those that remain , to those that are to go out , as you shall find just and reasonable ; and so we bid you farewel . given at our court at whitehall , the twenty fourth day of may , one thousand six hundred seventy and six . and of our reign , the twenty eight year . subscribed thus , by his majesties command , lauderdail . act concerning the registers . iuly . . the lords having considered his majesties letter , direct to them , bearing , that whereas by his majesties advancing sir archibald primerose of caringtoun , late clerk register , to the office of iustice-general , the office of clerk register is now vacant ; and seing his majesty hath thought it necessar for the advantage of his service , and for the good of his subjects , that the hail publick records of this kingdom , which are , and were in the possession and custody of the late clerk register , or his deputs and servants , be put and keeped in good order : therefore his majesty , impowers and authorizes the saids lords , to take special care , and see that the same be effectually done ; and to that effect , that they appoint some of their number , to take inspection thereof : and by themselves , and such as they shall imploy under them , to put , and continue them in good order . and his majesty authorizes the saids lords , and those of their number , appointed by them , to receive the hail publick registers and records from the late clerk register , upon such account and inventar , as they should find just , safe and secure : and which being effectually gone about , and done , that they render to his majesty , or to his secretary , for his majesties perusal , a full and exact account of their diligence therein , to the end , his majesty may thereafter , declare his further pleasure ; and for effectuating hereof , that the lords in his majestie 's name , and by his authority , require the late clerk register and his deputs and servants , to exhibite and produce the saids hail records to them , or those appointed by them , immediatly after receipt of his majesties letter . the saids lords in pursuance of his majestie 's command , do nominat and appoint the lords thesaurer depute , collingtoun , reidfoord and newtoun , or any two of them , to meet at such times as they shall think convenient , and to take inspection of the hail publick records of the kingdom , which are , or were in the possession and custody of the lord caringtoun , late clerk register , or his deputs and servants , and by themselves , or such as they shall imploy under them , to put , and continue the same in good order ; and authorize the lords above-named , to receive the saids hail publick records from the lord caringtoun , upon sufficient account and inventar : and to that effect , the lords in his majesties name , and by his authority , do require the lord caringtoun and his deputs and servants , to exhibite and produce the saids hail publick records , to the lords above-named , or any two of them , whem they shall desire the same ; and allows the said lord caringtoun , or any person whom he shall authorize to be present at the inventaring of the saids registers , to the end , obedience may be given to his majestie 's letter in all points . act for inventaring the registers books . iuly . . the which day , the lord thesaurer depute , collingtoun , reidfoord and newtoun , made report to the lords , that conform to the warrand given to them , they had met with the lord caringtoun , late clerk register , and had delivered to him the ordinance , past by the lords upon his majestie 's letters , concerning the registers , and had taken a view of the hail records in his custody , in the parliament-house , and in the castle of edinburgh ; and that the lord caringtoun declared● he would deliver the same , either upon inventar , or in bulk without inventary upon oath , that he has abstracted none of them , as the lords should think fit to order , he being exonered of the saids registers : but they found the warrans to be so many , and not in order that it would take a long time to inventar them ; which report being considered by the lords , they in pursuance of his majesties commands , do ordain the whole register books , which are in the said lord caringtoun's custody , to be presently inventared by iohn anderson writer in edinburgh , and any others who shall be appointed by the lords above-named , who shall give their oaths , that they shall faithfully discharge this trust , according to such directions as they shall receive from these appointed by the lords : and ordain the inventary to bear , what each book contains in general , at what time it● begins , and when the same ends , and if there be any blanks in , the books , that the same be marked in the inventary : and ordains the said lord caringtoun , to give the said iohn anderson , or any others to be appointed by the saids , lords , access to the saids registers , to the effect foresaid , and allows him , or any he shall appoint , to be present at the said inventaring : and after the said inventar shall be made , the lords do impower those of their number above-named , or any two of them , to to take the oath of the lord caringtoun , if he hath any more register books , records , or warrants , then are in the rooms in the parliament-house , and castle of edinburgh , whereof he is to deliver the keys , and if he abstracted , or embazeled any of them , or if they be all intire , as he received them , or as they came at any time thereafter to his hands . and likewise ordain any of his servants , intrusted with the keeping of the saids registers , to be examined upon oath thereanent : and thereafter ordain the lord caringtoun , to deliver the keys of the rooms , or presses where the saids registers and warrands are , to these of their number , appointed to receive the samine : which inventary being made , and the lord caringtoun giving his oath , and delivering the keys● as said is : the lords ordains the said lord caringtoun to be exonered , and discharged of the saids records , and of his trust in keeping of the same ; and ordain an act of exoneration to be extended thereupon , in his favours . the lords do ordain the inventar of the register books , to be set down in order in time coming , and according to the several matters contained therein . first , of the records , of parliament . secondly of the records of council . thirdly , the registers of session : and amongst them of registrate writs a-part , of decreets and acts a-part , and of books of sederunt . next to these , the registers of exchequer . then the registers of the chancellory . and thereafter , the registers of seasins , both the general registers at edinburgh , and the special registers of the shires . and in all , to keep the order of time . as for the warrands of the registers of session , since the year . they are yet in the hands of the clerks of session . and the former warrands being in great masses , without any order ; the lords do appoint , that the said masses be sorted , putting the registrat writs together , and the processes together ; and that the number of them both be taken and set down , that thereafter they may be also digested , according to the order of time . it is appointed , that so soon as the inventary shall be perfected , it shall be insert in the books of sederunt . act anent the manner of booking decreets of registration . november . . the lords considering that where registrations are persued by by way of action , it is , and hath been the custom of the clerks , to keep in their hands , the principal writes , decerned to be registrate in the same manner as they do , where writs are registrat upon the parties consent . therefore the lords ordain , that these decreets of registration be booked together , with bonds , contracts , and other writes , which are registrat upon the parties consent , according to the date thereof ; and that the process be keeped with the warrants of the registrat writes . act anent the registers of seasins and hornings in the several shires . ianuary . . the lords considering , that by the act of parliament , in anno . concerning the regulation of judicatories ; the keepers of the registers of hornings , and inhibitions , and seasins , and reversions in the several shires , are ordained to make exact minut-books , relating to these registers , in manner prescribed in that act : and the sheriff , bailzie of the regality , or royalty , or their deputs , with two justices of peace , if they be present , are appointed at the times expressed in the said act , to take inspection of the saids registers , and the minut-books relating thereto , and after collationing thereof , to subscribe the minut-book , under the penalty of an hundred pounds scots , for ilk failzie , in not meeting , and comparing the saids registers . and the saids lords to whom the care of seeing the premisses done , is committed by the said act , having by missive letters , of the . of iuly last , direct to the several sheriffs of this kingdom , required them by themselves , or their deputs , to go about the performance of what is enjoyned to them by the foresaid act , and to return a satisfactory account of their diligence , the first day of november thereafter , now by-past : certifying them if they failed , they would be charged with letters of horning , for the penalties contained in the said act : and seeing the sheriffs of the shires after-mentioned , and their deputs , viz. of argile renfrew , wigtoun , bute , peebles , sel●irk , perth , kincardin , aberdene , nairn , sutherland , caithness , berwick , ●or●ar and inverness , the stewart of kirkcudburgh , and the stewart of orkney , have not returned report to the saids lords , of their diligence in the premisses : therefore the lords do ordain letters of horning to be direct against the saids sheriffs and stewarts , and their deputs , charging them to meet , and to compare the registers of hornings , inhibitions , seasins and reversions , in their respective shires , with the minut-books relating thereto ; and after collationing of the same , to subscribe the minut-books , conform to the said act of parliament , and to make report of their diligence therein to the saids lords , betwixt and the twenty day of february next : and likewise charging them to make payment to sir william sharp , his majesties cash-keeper , of the penalties already incurred by them , viz. an hundred pounds scots , for ilk by-gone failzie , in not meeting and comparing the saids registers , at the times exprest in the said act of parliament , and that within the space of fifteen dayes after the charge , as to such of the saids sheriffs and their deputs , who reside upon this side of the river of spey : and upon twenty one dayes , as to those who reside benorth spey . act concerning arrestments . february . . the lords considering the great prejudice to creditors , and delay of justice , occasioned by arrestments , proceeding upon decreets , which are not ordinarly loused , whereupon debitors do procure delay of the decreets at the instance of their creditors against them , before the same be extracted , whereby lawful creditors are hindered in recovering their j●st debts , until a several process of double poinding , calling the creditors and arresters to dispute their rights , be raised and determined ; which , if they should come in as distinct processes , by the course of the roll , would take a long time , during which , the principal cause behoved to ●ist . for remeid whereof , the saids lords do declare , that they will receive all double poindings , for purging of arrestments , as incident processes with the principal cause , without any new inrolment ; and do further declare ; that if the arrester proceed not in diligence , by an action for making forthcoming , whereby his debitor may be certiorat of the arrestment , and may raise double poinding in the name of his creditor , in whose hands the arrestment is made , that they will grant no delay , upon pretence of such arrestments , albeit upon decreets : but that the same shall be purged by caution , to be found by the creditor to warrand the debitor , at the hands of the arrester , and that upon pretence of the caution found , they will not grant suspension , except upon consignation , after distress by decreet . likeas , the saids lords do declare , that they will grant no suspension upon arrestments , laid on after extracting of decreets ; whether upon decreets or dependences , but by way of double poinding ; that thereupon both the creditor and arrester may be called . act concerning advocats . iune . . the lords having called in the whole advocats , did intimate to them , that whereas his majesty had by a letter , of the . of may , . required the saids lords to prevent and punish all combinations and unwarrantable correspondences amongst advocats , whereby they may forbear , or refuse to consult or concur with these who did faithfully adhere to his majestie 's service , and did continue in , or early return to their station . which letter , immediatly after receipt thereof , was publickly read before the whole advocats , notwithstanding whereof , some advocats do refuse , or forbear to meet with others of the same station , and jointly consult their clients causes : which being contrair to the custom , always formerly observed , and very inconvenient and prejudicial to the leidges , who are thereby put to consult their advocats severally , and have not the benefit of their joint advice , as to the matter and manner of carrying on their causes , whereof the lords have seen instances in their own presence , by some advocats , their difiering and disclaiming the alleadgences proponed by others for the same party : for remeid whereof , the lords declare , that if any advocat in time coming , upon the account of personal prejudice , or any other pretence , shall re●use or forbear to consult or concur in the capacity of an advocat , with any others , whom the lords do , or shall authorize to be advocats , that they shall be removed from their imployments . act concerning the sisting of execution upon bills of suspension . iuly . . the which day , the lords considering that sometimes after bills of suspension are past , the same are not exped at the signet , through the parties fault , in not finding caution , or other neglect ; and that bills of suspension are frequently by deliverance of the orpinary , appointed to be seen by the charger , or his procurators , and in the mean time , execution stopped at the chargers instance , indefinitly , not limiting the same to a certain day . and seeing some question may arise , if in these cases execution should be sisted , and during what time ? for clearing whereof , the lords declare , that where a bill of suspension is past and intimat , or shown to the charger , or to the messenger , the time of the execution , but not expede at the signet : that execution is only to sist for the space of fourteen dayes after the date of the deliverance passing the bill , unless the ordinary upon further consideration , by a signature upon the bill , subscribed by him , discharge the expeding of the bill , untill a further day , or allow the suspender a longer time for expeding thereof providing the same exceed not a month from the date of the deliverance of the bill , passing the same . after ela●sing whereof of , the lords declare , that the charger may proceed to further execution , notwithstanding of the foresaid past bill . and if the ordinary express no day , but stop execution indefinitly : the lords declare that the stop shall continue only for the space of fourteen dayes from the date of the deliverance as aforesaid : but prejudice alwayes of deliverances given by the lords in presentia , upon petitions , ordaining the reasons of suspension to be discust summarly upon the bill : and in the mean time , discharging execution . in which case execution is to sist , untill the cause be discust , or the stop be taken off by the lords . and the saids lords prohibite the clerk of the bills to write any date upon the deliverance of a bill of suspension , but in presence of the ordinary , and that it be the true date , wherein the same is subscribed . act concerning the suspensions of protestations . iuly . . the lords considering that the act of parliament doth appoint , that where a protestation is suspended , the deliverance of the bill should mention , that it is the second suspension , and so forth of all the suspensions obtained thereafter , that the same is the third or fourth suspension : yet notwithstanding by the fault , or inadvertency of the clerk of the bills , the same is not observed : therefore the lords declare , that where there is a suspension past of a protestation , if the deliverance of the bill do not bear , that the same is the second suspension , and so forth of any subsequent suspensions , that they will recal the suspension , albeit the same be exped at the signet , as being contrair to the act of parliament . act against sollicitations . november . . the lords taking to their serious consideration , that by several acts of sederunt , the lords have formerly prohibited all sollicitations , in causes depending before them , whereby parties did endeavour and expect favour , by the credit , and moyon of themselves , or their friends interposing with the lords , and personal respects , not relating to the cause , to the great discouragement of others , who had not the like friendship , or moyon , and to the great trouble of all , conceiving it their interest , and that it might be looked on as a slight , or neglect , if they did not upon all occasions by themselves , or their friends sollicit the whole lords , at their houses lying scattered through the several places of the city , imagining thereby , to have much promoted their interest , and payed respect to the lords , who have no regard to , but are troubled with such sollicitations ; it being their duty , and design to do justice to all impartially , without respect of persons : notwithstanding of which acts , and endeavours of the lords against sollicitations , the same have been revived upon pretence of giving information in the cause : but now seing written informations are become ordinary ; and that all that ought to be represented to the lords in any case , may easily without trouble be done , by written informations sent to the lords by a servant , which they will heartily accept , and will not fail to peruse ; and finding it unfeasible to hinder sollicitations so long as they admit of verbal information . therefore the lords do declare , that they will admit of no sollicitation , or verbal information , in any cause depending , or that shall depend before them , during the dependence thereof either by the parties themselves , or by any other person . and to the end , the same may be effectual against all importunity . the saids lords do enact and declare , that it shall be a relevant reason of declinator against any of the saids lords ordinary , or extraordinary , that they have received or heard any sollicitation , or verbal information in the cause , during the dependence thereof . but upon the first observing , that the matter offered to be spoken to them , did bear , or import any sollicitation , or verbal information , in a cause depending , if they did not use all the means they could to stop , or withdraw to hear any further thereof . or in case any sollicitation , or information , in a cause depending , be offered by a missive-letter , if they do not present the same to the lords . likeas , the saids lords do strictly prohibite all advocats , clerks , writers and others , depending upon the colledge of justice , or their servants , to offer to any of the lords , any sollicitation or information , by word or letter , but only by written informations bills or tickets , for calling , under the pain of deprivation , and being secluded from the house , excepting the clerk of the process , for clearing any interlocutor , or minute in the cause . likeas , the saids lords do declare , that if any party , or others of the leidges , offer any sollicitation or information , by word or missive , that they will ammerciat them as follows , viz. every nobleman in three hundred merks scots money : every baron , or knight , in two hundred merks : every other heretor , gentleman , or chief burgesse , in one hundred pounds : and every other person in one hundred merks , toties quoties , to be applyed for the use of the poor . it is alwayes hereby declared , that the verbal information of any party , or other person for him , when required or allowed judicially , or before auditors , in diets appointed for both parties to be heard ; or before the ordinaries upon the bills , in relation to the passing of bills of suspension or advocation ; or before any of the lords , to whom , either by consent of parties , or by appointment , or recommendation of the lords , an accommodation in any process is referred , is no wayes hereby prohibited . and to the effect , the leidges may be secured against any prejudice which they may apprehend , by debarring them from sollicitation , or verbal information , the lords do declare , that there shall be free access for all persons to inform them by written informations , only to be delivered by servants , and that in all cases , from time to time ; and for the more sure delivery of informations , they ordain , that every one of the lords shall have a servant attending in his house , from● five a clock , to eight a clock at night , who shall be holden to receive any informations , doubles of bills , or tickets for calling , that shall be given in without payment of any money , under such pain or punishment as the lords shall think fit : and which informations , bills , or tickets , shall be delivered by the servants of advocats , or of the parties , and by none others . and ordain this act to be affixed on the wall of the outter-house . and to be printed , that none may pretend ignorance thereof . act concerning bills relating to concluded causes : november . . the lords considering , that sometimes after concluded causes are advised , and sentences pronounced therein , parties endeavour to delay the extracting thereof for a considerable time , and then do offer petitions for alteration of the decreet , whereby the process not being recent in the memory of the lords , they are put of new to peruse the process and probation . for remeid● whereof , the lords declare , that in timecoming , they will not receive any petitions , in relation to the stopping or altering of any decreet or interlocutor pronouncing , upon advising of concluded causes , unless the petition be given in within the space of two sederunt dayes , after pronouncing of the decreet or interlocutor . suspensions of the excise to be past only in presentia . december . . the which day , the lords ordained that no suspension shall be past of any charges given for his majesties annuity or excise , except in presence of the whole lords . warrant anent precepts , for giving seasine upon retours . february . . the which day , the lords ordained , that bills craving warrant to the director of the chancellory , to direct precepts to a sheriff in that part to grant infeftement upon retours , in respect of the sheriffs refusal , to infeft the party ; shall not be past in time coming , by the ordinary upon the bills , but the same shall be past by the whole lords in presentia ; and the lords discharge the director of the chancellory , to direct , or give out any precepts to sheriffs in that part , for granting infeftment upon retours , unless the warrant be past in presentia , as said is . act in favours of the lord register . february . . the which day , the lords considering , that the kings majesty hath nominated and appointed sir thomas murray of glendook , one of their number , to be clerk of register , with power to him to receive all the profites of the office , since the advancement of sir archibald primerose to be justice-general : and he being accordingly admitted to the said office. therefore the lords do grant warrant to the lords , newtoun and hercus , to take the oaths of these persons , who by their warrant , were intrusted with the keeping of the publick registers , which were in the custody of the late clerk of register , if they have abstracted or imbazeled any of the said register books , or warrants , or if they be all intire and in the same order as they are set down in the inventar , insert in the books of sederunt . and ordain the keys of the rooms , wherein these registers are , viz. that below the parliament-house , and of the chamber in the castle of edinburgh , to be delivered to the said lord register . and grants warrant and order to mr. alexander gibson , one of the clerks of session , to make compt and payment to the said lord register , of the dues of the clerk of registers office , which he has intrometted with , by warrand of the lords : and declare , that this act , with the said lord register his receipt , shall be a sufficient exoneration to the said mr. alexander gibson thereof . act discharging clerks to lend out processes to any , except advocats and their servants . february . . the lords considering the abuse committed by giving out of processes , to some persons attending the house , and pretending to negotiat in , and mannage processes , who are neither advocats , nor servants to advocats . for remeid whereof , the saids lords discharge the clerks of session , and their servants , to give up , or lend out to any persons , any processes or writes , produced therein , except only to advocats and their known servants . and the lords declare , that each advocat shall be allowed to have one servant ; and if any shall desire to have more servants allowed to them then one , appoint them to represent the same to the lords , and they will take it unto their consideration . act prohibiting the clerks to give up bills relating to processes , whereupon there is any deliverance of the lords . iuly . . the which day , the lords did discharge the clerks to give up to parties , any bills or petitions , whereupon there are deliverances , relateing to interlocutors or decreets in processes , except where the same are appointed to be seen and answered . and appoint the clerks to keep the foresaid principal petitions , bearing , deliverances of the lords , and to give out to parties only doubles thereof . act discharging advocats , and writers servants , to write their masters subscription . iuly last , . the which day , the lords considering , that there is a corrupt custom , lately crept in of advocats , and writers servants , adhibiting their masters subscriptions , to petitions and bills given in to the lords which is not to be endured . therefore the lords declare , that if in time coming , the servant of any advocat shall presume to adhibite and write his masters subscription to a petition , or to the out-giving , or return of a process ; or if the servant of any writer to the signet , shall adhibite his masters subscription to a bill of suspension , or other bill used to be drawn by writers , that they will proceed against , and punish these persons as falsaries and forgers of writes . act ordaining hornings and inhibitions to be booked , which were not booked the time of the vsurpers . ianuary . . the which day , the lord register , newtoun and hercus did make report to the lords , that conform to the warrand given them , of the fourth of december last , they had considered the condition of the general registers of hornings and inhibitions , and of the particular registers thereof in the shire of edinburgh during the englishes time , and found , that during the said time , there were no hornings booked for the space of five years , and three moneths , or thereby ; and that no inhibition were booked for the space of three years and six moneths ; and that they had called the persons who were intrusted in that time , as clerks to , and keepers of the saids registers of hornings and inhibitions , and where they were dead , they called and heard their representatives ; but that one of these who had the keeping of the saids registers , from the . of iune . to the . of september . called thomas freeman , being deceased , there can be none found to represent him , which being taken in consideration by the lords , they ordain the hornings and inhibitions to be booked for the saids years , by such persons as the lord register shall appoint , and allows them for their pains , three shillings four pennies for ilk leaf of the book , written in such manner as the lord register shall appoint , and the lords ordain the same to be payed by the persons who enjoyed and possest the said offices , and were oblieged to have booked the same , or their representatives . and where they have none to represent them by the person who succeeded next in the said office , and his representatives . and ordain letters of horning to be direct upon six dayes , to the effect foresaid . orders for payment of the dues of the signet , where suspensions are appointed to be discussed upon the bill . ianuary . . the lords considering that they do frequently grant warrands to the ordinary upon the bills , to discuss the reasons of suspension upon the bill , especially where the charger desires the same . and seeing that warrand or deliverance , hath the effect of a suspension past the signet , the party ingiver of the bill of suspension , being thereby secured against any further personal execution , untill the reasons of suspension be discussed . it is just and reasonable in this case , that the dues payable for affixing the signet , should be satisfied , as if the suspension had been past and exped . therefore the saids lords do ordain , that before the suspenders process be heard upon the reasons of suspension before the ordinary upon the bills , in order to the discussing thereof , there be payed in to the clerk of the bills , or his servant in that office , the dues payable for affixing the signet to the suspension , for which they are to be comptable to the keeper of the signet , under the lord secretary , and to make payment thereof as he shall call for the same . and appoint the clerk of the bills , and his servants , to keep a note of such bills of suspension , whereof the reasons are ordained to be be discussed on the bills , to the effect foresaid . act in favours of intrant advocats . february . . the lords considering a petition presented to them by robert nairn , son to mr. alexander nairn of greenyards , mentioning , that the petitioner upon a reference of the lords , to the dean of faculty , and the advocats , examinators for taking tryal of his qualifications , in order to his admission to the office of an advocat , having undergone , both the privat and publick tryal and examination , and thereafter applyed to the dean of faculty , to assign him the subject of his publick lesson before the lords ; the same is refused , until the petitioner make payment to the advocats box , of . merks scots , conform to a late act of the faculty , made to that purpose . and the lords considering , that the office and imployment of advocats , being a liberal profession , albeit they will not allow any sums of money to be imposed upon young men , at their entry to the office , and station of advocats , yet they recommend to them , to contribute voluntarly , for a library to be erected for the use of the colledge of justice . act anent executors creditors . november . . the lords considering , that it is imcumbent to all executors , by vertue of their office , to execute the testament of the defunct● by recovering his goods , and payment of the debts owing to him , for the behove and interest of the relict children , or nearest of kin , creditors and legatars of the defunct . therefore the saids lords do declare , that executors decerned , and confirmed as creditors to the defunct , are holden as lyable to do diligence , for recovery of the defuncts goods and the debts due to him confirmed in the testament , or ●iked , sicklike as other executors dative are holden to do by the law , and practick of this kingdom . and to the effect , that creditors be not unnecessarly intangled in the execution of defuncts debts , beyond their own satisfaction ; the lords declare , that executors creditors shall not be oblieged to make a total confirmation ; but only of so much as they shall think fit , that there may be place for an executor , ad ommissa , for the rest , who shall be lyable to all parties having interest in the same way as principal executors . it is also declared , that executors creditors , shall have license to pursue , if they will make faith , that they are doubtful of the validity , existence , or probation of the debts of the defunct , for which they desire license ; the same being returned to the commissars within such competent time , as they shall appoint , and upon caution to confirm as hath been granted in the case of licenses formerly . act anent the registration of hornings . november . . forasmuch ; as all letters of horning are to be registrate , either in the registers of the shire , where the denounced person dwells , or in the general register of hornings , keeped at edinburgh : and the sheriffs , clerks , and keepers of these registers in the shires , are by special act of parliament , appointed to bring in those registers , to be marked by the clerk of register : and when they mark the registration of any horning upon the letters , they should also insert therein the number of the leaves of the register wherein the same is registrate . which order is renewed by act of regulation , in anno . and the due observance hereof being of great importance , for the benefite and security of the leidges . therefore the lords do accordingly ordain , all sheriff clerks , to bring in their registers of horning , to be marked by the clerk of register ; and that in every horning to be registrate by them , they insert at the marking thereof , the particular leaf of the register , wherein they are registrate : and that the sheriff● clerk take in no hornings to be registrate in their books , but against persons dwelling within their shire . and the lords recommend to the lord register , to take special care of the exact observance hereof : and also ordain the clerk of the bills , not to receive any bill of caption or others , upon any horning not registrate and marked in manner foresaid : and ordain letters of horning , to be direct hereupon , upon a charge of fifteen dayes . act against sollicitation . december . . the which day , the lords considering , that notwithstanding of the act made against sollicitation and verbal information , dated the sixth day of november . years . yet some persons are so bold , as to venture to sollicite the lords in their actions . and it being the resolution of the saids lords , that so laudable and necessary an act be made effectual . therefore they declare , that in any process now depending or which shall hereafter be intented before them , when the same comes to be advised , they will purge themselves concerning their receiving any sollicitation , or verbal information in the cause , if it shall either be desired by the partis , or moved by any of their own number . and that they will delate the persons , who do sollicite , or verbally inform them , that they may be punished therefore conform to the said act. act anent the taking of renunciations from persons inhibited . february . . the lords considering , that it hath been the ordinary custom of debitors , to make payment of sums due upon wodset , or anualrent by infeftment , and to accept renunciations , or grants of redemption from the wodsetter , or annualrenter ; albeit the credtor had been inhibit before payment : which being made bona fide the debitors conceived themselves secure , and that they needed not search registers , to find inhibitions against the wodsetters , or annualrenters . which hath tended much to the detriment of creditors , seing such sums secured by infeftment were not arrestable . for remeid whereof , the saids lords declare that if the user of an inhibition upon search of the registers , or otherway shall find infeftments of annualrents , or upon wodsets , in favours of their debitor , being inhibit , and shall make intimation , by instrument of an-nottar , to the persons who have right to the reversion of the saids wodsets , or annualrents , that the wodsetter or annualrenter stands inhibit , at their instance ; and shall produce in presence of the partie , and nottar the inhibition duely registrat . then , and in that case , the lords will not sustain renunciations , or grants of redemption , although upon true payment , not being made bona fide in respect of the intimation , unless the redemption prcceed by way of action ; the inhibiter being always cited thereto , or by suspension of double poynding , upon consignation of the sums , whereupon the annualrent , or wodset is redeemable . and ordain this act to be printed and afixed upon the wall of the utter-house , that the same may be known to all the lelges . act against petitions for alteration of acts extracted . february . . the which day , the lords considering , that some times , after acts of litis contestation are extracted , petitions are given in to them by one of the parties , craving the act to be altered , wherein there may be prejudice to the other partie concerned ; not being present , nor at that time obliged to be present : conceiving himself in tuto , after extracting of the act. for remeid whereof , the lords declares , that in time coming , they will receive no bills , or supplications for alteration of acts after the acts are warantably extracted , seing both parties , or either of them may have a sight , or scroll of the act before extracting , if they desire the same . and likewise , because sometimes bills are given in for adducing of witnesses , which have not been contained in the first diligence , but are alleadged to have come to knowledge since the first diligence was taken out ; or after taking out of the second diligence , whereby witnesses come to be examined , when the other partie is not present , nor obleiged to attend , that they may either object against the hability of the witnesses , or propone interrogators to them . therefore the lords do declare , that in case upon any speciallity , they do give warrant to examine any witnesses , not contained in the first and second diligence ; that they will only admit the saids witnesses to be examined at the first and second terms of probation , when both parties are obliedged to attend . his majesties letter in favours of the lord register anent the nomination of the clerks of session . iune . . charles r. right trusty , and well beloved councellours , and trusty , and well beloved , we greet you well : whereas , by our letter to you , of the . of may , . we did ordain , that the three clerks of the session , who do expede your decre●ts , shall be nominated by the senators of our colledge of iustice , in all time coming . and that the clerk of register give them deputations from time to time ; without prejudice to the clerk of register , of all other benefit and emolument belonging to , or depending upon that office. and seing the office of clerk of register was then vacant , and that the nomination of the clerks of session was always inherent in , and depending upon the office of clerk of register . and that since we have advanced sir thomas murray of glendook one of your number , to the said place : and being well satisfied with the good service done by him to vs , in the late convention of estates , and upon several other occasions . therefore , as a mark of our royal favour to him , we do by these presents , recall our said letter , anent the nomination of the clerks of session ; and do impower , authorize and appoint the the said sir thomas murray , during his enjoyment of the said office of our clerk of register , solely to nominate , and appoint the clerks of session . so that upon death , demission , and vacancy of any of the clerks of session , the said sir thomas murray is to grant deputations , to such persons as he shall think fit , and that during their lifetime ; and shall as absolutely amply , and freely use , and exerce the said office of clerk of register as any other clerk of register formerly did , or might do , declaring the same to be as effectuall to the said sir thomas murray , as to his sole nomination of the clerks of session , as if it had been contained in his gift , of the office of clerk of register . and ordaining these presents to be recorded in your books of sederunt . and so we bid you heartily farewell . given at our court at whitehall , the twelfth day of november , one thousand six hundred seventy and nine . and of our reign , the thirty one year . sic subscribitur . by his majesties command , lauderdail . act concerning nottars . iuly . . the lords considering , that by acts of parliament , it is statute and ordained ; that nottars be sufficiently qualified for exercing that office , after examination by the lords of session ; that sufficient caution be found , for their due administration of their office : and in case the caution be not sufficient , that new and better caution be found : and after the decease of the nottars , their protocalls are ordained to be brought in to the clerk of register , or his deputs , appointed by him to that effect , who is impowred to revise the protocalls of all nottars , and consider in what condition they are . and albeit the due observance of these acts of parliament , be a publick concern , as to the interest , and security of the whole leiges ; yet the saids lords understanding , that by reason of the late troubles , and the confusions ensuing thereupon . especially during the time of the usurpers , these acts have been neglected to be put in execution : in so far , as many nottars are deceased , whos 's protocals are not returned to the clerk of register , or his deputes ; but do remain in the hands of their relicts , and children , which occasions divers inconveniencies , and divers of their protocalls are upon perusal , found to be defective , and unformal : and some of their cautioners are not sufficient . likeas , divers persons pretending to have been admitted under the usurpers , do presume to officiat as nottars , albeit they be not lawfully authorized so to do . for redresse of which abuses and disorders , the lords do ordain letters to be direct at the instance of the clerk of register , or his deput , clerk to the admission of nottars , for charging the relict , and executors of such persons as are decea●ed , and their cautioners , to bring in , and deliver to them the protocall books of the saids nottars , conform to the act of parliament , and their respective acts of admission . and also ordains general letters to be direct , at the instance of the clerk of register or his said deput ; for charging such nottars , as they are informed to have protocalls detective , or informal , to produce their protocalls before the said deput , at the head burgh of the shire , where the nottar does reside ; and where the cautioners found for any nottar is insufficient , to charge that nottar to find new , and more sufficient caution . and ordain these general letters to be execute upon six days , and that against such particular persons , only as shall be given in a list , under the hand of the clerk of register . and the saids lords do hereby prohibit , and discharge all persons who were admitted nottars , under the usurpers , to officiat as nottars , untill they be of new admitted . and the saids lords considering , that it is statute and ordained by acts of parliament , and specially by the . act parliament . iames . that all sheriffs , stuarts , bailzies and others , both to b●rgh and land shall present their clerks in presence of the lords of session , to be examined , sworn and admitted by them : and seing the clerks of these courts have neglected for some time by past , ●o compear before the saids lords , to be tryed and approven by them : and it being necessary , and the publick interest of the leidges , that these acts of parliament be punctually observed in time coming . therefore the saids lords do ordain and require all persons , who hereafter shall be nominate sheriff clerks , clerks of s●ewartries , and bailiries , before they enter to , and exerce their office of clerkship , to compear before the saids lords , that they may be tryed and approven by them , conform to the act of parliament , certifying them , if they failzie therein , they shall be deprived of their offices . act concerning bills of suspension . november . . the lords considering , that by former acts of sederunt , of the . of february . and the . of iuly , they did give warrant to the ordinary upon the bills , to allow a sight of a bill of suspension , to the charger , and to stop execution for some time , not exceeding a moneth , declaring also , that a bill of suspension signed by the ordinary , though not expeded at the signet , should import a stop of execution for the space of fourteen dayes , from the date it was signed , that in the mean time sufficient caution might be found , and that the clerk of the bills might enquire anent the condition of the cautioner . and now finding that abuses have crept in , stops being procured from several ordinaries , from time to time , and that when the first fourteen dayes after , a signed bill were elapsed , a new one was presented and past , which stopped execution for other fourteen dayes , and so might continue for a long time . therefore the lords do declare , that they will give no stops of execution hereafter , upon bills of suspension , fourteen dayes from the date being a sufficient time , both for seeing and expeding the bill . and declares all other stops to be void , except where causes are ordained by the lords , to be discust upon bills ; and ordains the clerk of the bills to make a minut-book , both of past and refused bills , by the alphabetick order of the parties sirnames , which he is to make patent to any charger that shall desire to see the same , gratis , and discharges him to present any new bills in that cause except to the whole lords in time of session , or to three lords in time of vacance , as he will be answerable at his peril ; and because parties , or their procurators , are accustomed to procure suspensions , upon pretence , that the copy of the charge given by the messenger is general , or unformal ; and for verrifying thereof , do produce forged copies , and sometime forged writes , for instructing reasons of suspension , founded thereupon , never intending to make use of the same ; and therefore do suffer protestations to pass . for remeid whereof , the lords do declare , that if the charger shall produce such a suspension , or a duplicat thereof , under the hand of the keeper of the signet , that in that case , the lords , besides the ordinary expenses of protestation , will modifie large expenses to the charger , for his delay ; and in case protestation shall not be admitted but the suspension shal come to be discust : and at the discussing the charge , or other writes mentioned in the reason of suspension , be not produced : the lords declares , they will hold these writes false and sorged , and modifie large expenses to the charger , but pr●judice to insist against the forger of the saids copies or writes ; and ordain a copy of this act , and of the other two acts above-mentioned , to be affixed upon the wall of the outter-house , and copies thereof to be delivered to the clerk of the bills , to remain affixed on the wall of the bill-chamber , that he may exactly observe the same . act anent the marking of advocats compearance for defenders . november . . the lords declares , that in time coming , where several defenders are conveened in one summonds ; and that at the calling thereof by the clerk , an advocat shall be marked , compearing indefinitly for the defenders , and who shall likewise return the process : that advocat shall be holden compearing for all the defenders , unless by the return upon the process , he qualifie his compearance , and express , for which of the defenders he compears , and for which of them he doth not compear . act in favours of the macers . february . . the which day , there being a petition given in to the lords , by their four ordinary macers , representing , that where the lords are in use upon application of parties to grant commissions for taking the oaths of parties , and the depositions of witnesses in causes , where it appears by testificats produced , that the parties or witnesses , are through age and infirmity , unable to travel . and sometimes commissions are grantted , where the persons live at a great distance , and the matter is of small moment : by granting of which commissions , the petitioners are frustrate of the dues payable to them , in case the parties and witnesses did come here and depone before the lords ; and therefore craving that they might have their dues , for parties and witnesses , where they are examined by commission : which being taken to consideration by the saids lords , they ordain , that in time coming , where commissions shall be granted by the lords , for examining parties or witnesses , that the macers shall have the half of the dues which are payed to them , when parties and witnesses do compear before the lords and depone , viz. twelve shilling scots for ilk party to be examined by commission , to be payed in manner following , viz. where a commission is granted for taking a parties oath , that the dues be payed to francis scot , keeper of the minut-book , within fourty eight hours after the commission shall be put up in the minut-book , and in case the same be not payed within that space , that the commission shall be delet out of the minut-book , and not extracted until the same be put up again , and the dues payed ; and that the saids dues for witnesses be payed at the return of the report and commission , before an avisandum be put up thereof in the minut-book : and to the end , the number of the witnesses may be known , that the person to whom the commission is granted , shall set down upon the back of the commission , or report , a list subscribed by him , of the witnesses names : and the clerks are hereby ordered , to insert in the commission a warrant to the commissioner to transmit that list with the report of the comission ; and that francis scot attest under his hand , that payment is made to him of the saids dues , before an avisandum be put up of the report in the minute-book . act anent seasins and reversions of lands within burgh . february . . the lords of council and session considering , that the act of parliament . anent the registration of seasins and rev●rsions of all lands and annualrents , there is an exception of land and annualrents lying within burgh , and within the burgage lands of royall burrows , which is supposed to have been upon account of the books of the town clerks of royal burrows , wherein the seasins and reversions of such lands might be found . nevertheless the lords finds , that not only seasins within burgh , are sometimes omitt●d , and not found insert in the town clerk books : but that frequently , reversions of tenements and annualrents within burgh , and assignations to , and discharges of reversions , and bonds for granting such reversions , are not to be found in the saids books , to the great detriment of the leidges , and especially of the inhabitants of the saids royal burrows . for remeid whereof , the lords do appoint and ordain , the magistrates of royal burrows , and their successours in office , to take good caution and surety of their town clerks , that now are , or shall be in office , that they insert in their books , all seasins of lands , tenements , and annualrents within their respective burghs , or burrow-lands ; and of all reversions , bonds for granting reversions , assignations to , and discharges of reversions , renounciations , and grants of redemption , of any tenements , or annualrents within their burghs , or burgage lands , that shall be given at any time hereafter , within the space of threscore dayes , from the dates thereof respective , in like manner as is prescribed by act of parliament , anent the registration of seasins , or reversions of lands without burgh : and that the said surety be under the pain of the damnage that shall befall to any party , through the latency of the saids writes , which shall be past by the saids clerks , or presented to them to be insert in their saids books . likeas , the lords ordains the saids magistrates to insert an act hereupon , in their town court books , and to cause publish the same by tuck of drum , that none pretend ignorance . and further , the lords do declare , that if any party shall neglect to insert their seasins , reversions , bonds for granting of reversions , assignations to , and discharges of reversions , renounciations and grants of redemption , in manner foresaid , that the lords will hold and repute them as latent and fraudulent deeds , keeped up of design , to deceive and prejudge the purchasers of tenements and annualrents within burgh , bona fide , for just and onerous causes ; and ordains the provost of edinburgh , to intimate this act to the commissioners of the royal burrows , at the next convention of burrows , and ordains thir presents to be printed , and published at the mercat cross of edinburgh and other places needful . certain decisions of several debates , intented and debated before the lords of council & session , in some weighty and important affairs , brought before them . beginning the . of june . and ending in july . iames talzifer contra maxtoun and cunninghame . iune . . iohn ker , merchant in edinburgh , having an wodset-right of some tenements in edinburgh , william clerk his creditor , comprized the wodset-right from him , and obtained decreet of removing , against the tennents of the tenements ; iames tailzifer having right to the reversion of the said wodset , consigned the sum for which the wodset was granted , in the hands of the clerk of the bills , and thereupon obtained a suspension of the decreet of removing ; and thereafter having obtained right from william clerk , to his appryzing , did , by supplication , desire the sum consigned by him , to be given up to himself ; . because the consignation was not orderly made , conform to the reversion . and , . though it had been orderly , yet before declarator , he might pass from the consignation , and take up his money , whereby the wodset right wou●d remain unprejudged . . the wodset-right being now returned to himself , by acquiring clerks appryzing , he had thereby right to the sum consigned , for redemption of the wodset : compearance was made for maxtoun and cunningham , for whom it was alledged that the consigned sum ought to be give up to them ; because , before william clerks appryzing , they and william clerk , had joyntly obtained from the king , a gift of the escheat , and liferent of the said iohn ker , who had been year and day at the horn , before welliam clerk appryzed from him ; so that the sum consigned , being now moveable , fell under kers e●chea● , and thereby they have r●ght to two third parts thereof , and clerk or tailzifer by his right , can only have the other third ; and if the sum were not ●ound to fall under kers e●cheat , the annualrent thereof , during k●rs 〈◊〉 would fall to the three donators of his liferent equally , and the ●um ought to be given out , in security to them for their liferent ; and to tailzifer , as having right to clerks appryzing in fee , except the third , thereto clerk had right as joynt donator with them ; neither could tailzifer pass from his confignation , seeing th●y accepted thereof ; nor could he object against any informality in the consignation made by himself , seeing they past from that objection . it was answered for tailzifer , that maxtoun and cunninghame had no right by the single escheat of ker ; because before the consignation , by which it is pretended the consigned sum became moveable , ker was den●ded by clerks appryzing : so that the consigned sum came in place of the appryzing . it was answered for maxtoun and cunninghame , that albei● the apprizing might carry the stock and fee of the consigned sum ; yet the liferent of the annualrent thereof , belongs to the three joynt donators of kers liferent , seeing ker was year and d●y denounced ; whereby jus fuit acquisitum domino regi , before welliam clerk apprized . it was answered for tailzifer , the diligences of lawful creditors , are still preferred to the fisk , before declarator , and here that was no declarator , of the liferent of ker : and therefore clerks appryzing must carry the whole right of the wodset , and in consequence of the sum consigned in place thereof . it was answered for maxtoun and cunninghame , that although compleat dilligences of creditors , attaining effect before declarator , are not lyable to re●●i●ution , in single escheats , it is not so in liferent-escheats ; especially where the diligence is not compleat , ●n cursu rebellionis , as in this case , and likewise clerk , tailzifers author had homologat the right of liferent , by concurring with them , founding thereon in many process●s . the lords found the alleadgence for maxtoun and cunninghame , upon the joynt gift of kers liferent , homologate , as said is , relevant and proven ; and therefore , ordained the consigned money to be given up to tailzifer , who by vertue of his right to clerks appryzing , had the right of the stock thereof , and ordained him to imploy the same , or give security for the annualrent , of two third parts thereof to maxtoun and cunninghame , during john ker's lifetime . major of bervick , contra l. of hayning . iune . . the major of bervick , and others having right to the salmond fishing in tweed , within bervick bounds , gave in a supplication to the parliament , against the laird of hayning , bearing , that he was now drayning a loch , which fell into the water of etrick , and thence into the water of tweed , which had given a red tinctur to all the river to the sea , most noysom to the salmond , which were found never to swime where the said tinctur was , but in other clearer places of the vvater , all the salmond fishing was prejudged to a great sum , to the detriment of the countrey , and the kings customes ; therefore desiring that he might be ordained to desist and cease : the parliament remitted the bill to the lords . it was alleadged for the defender , that the bill was not relevant , because of any alleadged prejudice of the pursuers , to take away from the defender his undoubted right of propertie , giving him power to dispose of his own at his own pleasure . and so to drain his loch , or to cut his own ground , especially seing his majesty , by his proclamation having invited all his subjects to drayning . the pursuer answered , that his petition was most relevant , and no ways contrair to the right and effect of propertie , which giveth the proprietar power to dispose of his own , so that he keep him within his own bounds , and do not send forth any noisom thing upon his neighbours , but he may not do so to his neighbours detriment , especially if he make use of that which is his own , not according to the nature and common use thereof , but against the same , and so though he may build upon his own ground , albeit to the detriment of his neighbours light or prospect , or may dig a well in his own ground , albeit thereby he cut off the veins of his neighbours well , yet can he not otherwise prejudge his neighbours , as if he had a loch on a hill , he might not cut it , if it drowned his neighbours ground below , nor may he build a milne upon his own ground , so as to take the the water from his neighbours milne , nor may he turn the water out of the old channel , or make it rune other wayes upon his neighbours , then was accustomed . in like manner , in superiour and inferiour tenements in town , the superiour may not be made use of , to the detriment of the inferiour , nor the inferiour to the detriment of the superiour , by putting fire on the floor , which would smoak the same . the like is provided by many interdicts in the civil law , &c. and therefore the defender might not contrair to the nature of a loch , which hath perpetually been a loch , do any deed beginning within his own bounds , but ending in a publick river , to the detriment of the fishing ; which is worth more then . lib. sterl . by year . the defender answered , that suppose he might not make use of his own , to emit any thing upon his neighbours propertie contrare to nature , to his neighbours detriment , as in the instances alledged , they did not meet with this case , because here he offered him to prove , that his loch had a perpetual current to the water of ettrick , which made a milne go , and when his drayning was done ( which would be shortly ) the current to the river would be as little , and as pure as ever , so that albeit there was detriment , it was but temporary , nor was he working contrary nature , but helping it , by redding the passage , to let the loch run quickly away . dly . albeit he might make no new work on his own ground , to the detriment of his neighbours propertie , yet might he well send away any stagnant water , corruption or filth , by a publick river , whereof one prime use is to purge the earth of all corruption , and to carry it to the sea , and therefore the corruption , not only of men , and beasts , but of the earth , as of minerals , coal-pits , lime , and all others might be freely turned thereunto , unlesse there were a positive law or custome to the contrair , albeit there may be detriment of fishing , which is but a casualitie , and must carry the accident of such inconvenience along with it . and as for the roman interdicts , they neither meet the case , nor are they laws for us , where the civil law is not a law , but an example we follow freely when we find it just and fit . the lords were inclined to refuse the said bill , on that consideration mainly , that it was the proper use of rivers to carry away the corruption and filth of the earth , which should not be hindred by any right of fishing , which is but a casualiti● given and taken with the common use of the river , but in regard the matter was remitted by the parliament , who might , if they found great inconveniency make a law for remeid thereof ( before answer ) the lords granted commission to trye the condition of the loch , and how it runn before this drayning , and how it would run after the same , and how long the drayning would continue , and what alteration was in the fishing of tweed thereby , and what appearance that the same was caused by the drayning of this loch . raith of edmonstoun , contra the laird of niddrie . iuly . . john boid merchant in edinburgh , as assigny constitute by the laird of of wolmet , to a decreet obtained at his instance , against niddrie , for payment of the sum of . merks , for which he gave band to wmquhil wolmet for iames reith of edmonstoun his good brother , as an asythment for the mutilation of the laird of wolmet by edmonstoun , who cut off wolmets left hand . niddrie suspended on double poynding , called the said iohn boyd , iean dowglas , umquhile wolmets relict , and the said iames reith . it was alledged for niddrie , and the said iames reith , that the decreet did bear the sum not to be payable till their were delivered , a sufficient letter of slaine and remission for the mutilation , but the letters of slain now produced is not sufficient , because it did bear only the remission of an accidental mutilation , and this mutilation being of purpose . dly . it was only subscribed by wolmets heir , and not by his wife , and their children . it was answered for the chargers , that there was no necessity of a letter of slains for mutilation , but the remission alone was sufficient . dly . this sum was granted for asythment to umquhile wolmet himself in his lifetime , and the decreet mentioned a letter of slains granted by him . dly . any interest his wife or bairns could have , was only for the asythment of their damnage , which could be none , seeing wolmet was a landed gentleman , and did not intertain his family by his handie work , the lords repelled the reason of suspension ; in respect of the answer on the decreet and letters of slain produced , which they found sufficient . it was also alledged be the said iean dowglas , that she ought to be preferred to the said iohn boyd , because she had arrested the sum long before his assignation . it is answered , for boyd , the arrestment was upon a dependence and loosed , and there is yet no decreet upon the dependence . it is answered for dowglas , that the loosing of the arrestment would have freed niddrie , if he had actually payed the sum , but it being yet in his hand , it ought to prefer her as creditor , doing first diligence , especially , seing wolmet the time of the assignation , was rebel , and bankrupt . the lords preferred the assigny , in respect there was no decreet extracted upon the dependence : reserving to the arrester after sentence to reduce upon the prior diligence as accords , &c. tailizfer , contra maxtoun and cuninghame . iuly . . in the competition betwixt tailzifer , maxtoun and cuninghame , mentioned iune . where tailzifer was preferred to the stock of the sum consigned , for the redemption of the wodset in question . it was further alledged for maxtoun , that he ought to have a share of the stock , because he produced a mutual band betwixt himself and william clerk , tailzifers author , who apprysed the wodset , whereby they were oblidged to to communicat the profit that should accresce to them by their actions intented , and to be intented upon their rights of iohn ker , the common debitors lands , without opposing one another upon their several apprysings , tailzifer answerd non relevat against him , who was a singular successor , this being but a personal band of his author , and could not affect his real right of apprysing , it was answerd for maxtoun , first , albeit apprysings and infeftmens thereupon be real rights , in some respect , yet in many others , they were only accompted as personal rights , at least might be taken away by personal deeds , as by intromission with the maills and duties of the apprized lands , or by payment of the sums therein contained , which would be valid against singular successors , without necessity of any consignation . it was answered for tailzifer , that this is by reason of the act of parliament . declaring apprysings satisficable by intromission with the maills and duties , and so to expire ipso facto , but cannot be streached beyond the tenor of that statute , contrair the nature of real rights . the lords repelled the alleadgeance for maxtoun upon the band for communication , which did not affect singular successors . it was further alleadged● that this mutual band was homolgat by tailzifer in so far as he had concurred in all pursuits with maxtoun conform to the tenor of the said band , and had uplifted the mails and duties accordingly . it was answered for tailzifer , non relevat , to infer homologation , seeing these deeds are not relative to any such personal bond , which tailzifer never knew , and therefore could not homologat ; whereupon tailzifers oath was taken , if he knew the same , who denyed : and thereupon the alleadgence was repelled . maxtoun farther alleadged , that albeit there had been no more , but the concurrence judicially , it was sufficient to communicat the appryzings . it was answered for tailzifer , non relevat , unless the concurrence had born expresly , to communicat , for the concurrence only to exclude third parties , would never infer the same . the lords repelled maxtoun's alleadgences , and adhered to their first interlocutor . colledge of st. andrews supplicant . iuly . . the colledge of st. andrews supplicat , that in respect their hail rents were arrested , at the instance of doctor gleig , and thereby they were not able to intertain their table and bursers ; craved the arrestment to be loosed , without caution , in respect they were an incorporation , for whom no body would be caution . the lords after debating the case amongst themselves , whether arrestment could be loosed without caution , or upon juratorie cautione , thought it could not ; but in this case , they allowed the same to be loosed , the masters of the colledges giving a bond , to bind themselves and their heirs personally , for what should be uplifted by any of them , whereby every person stood caution for his own intromission , for the university , they not being otherwayes bound personaliter , but only secundum officium . relict of robert fleming , contra forresters . iuly . . the relict of robert fleming , bailzie of edinburgh , as his executrix , charged forresters the bailzies sister daughters , to pay . merks , due by their father , by bond , and decerned against them as lawfully charged to enter heirs to him nineteen years ago , and now eiked to the bailzies testament , by the charger ; whereupon she obtained letters of horning , summarly ; the suspenders alleadged , the letters ought to be suspended simpliciter , because they offered a renounciation to be heirs : the charger answered , non relevat post sententiam et tantum temporis intervallum : the suspender replyed , they were minors the time of the decreet , and that the delay of time was , because their uncle never insisted , and it was like , purposed not to insist . the charger answered , they were now majors , and did not reduce intra annos utiles . the lords admitted the renunciation . laird of buchannan . contra oseburn . iuly . . the laird of buchannan pursues , reduction of a decreet , obtained against him , at the instance of lieutennent collonel oseburn , in anno . upon many reasons , mainly , because the ground of the decreet was only a bill not past the signet , at the instance of umquhil , mr. william cunninghame , continued in oseburn , after his decease , without transferring , for rectifying or rescinding a minute of disposition , of the lands of ballindalloch , by mr. william to buchannan , put in the hands of mr. david buchannan , who gave his ticket that the same should be keeped , until it were perfeited according to equity and justice ; and deponed , that the point to be rectified , was only the warrandice which in the minute was absolute , upon which bills , the then judges , ordained the parties to submit , who accordingly submitted to four friends , and two overs-men , who were to report , february . . which oversmen did unwarrantably report , after the expyring of the said reference , upon the . of february , to buchannans great prejudice , contrair to justice , in so far as they ordained him to pay oseburn sixteen years purchase , for the price of the lands , without production or debating of the parties rights , or calling , or hearing the arbiters ; and with warrandice from oseburn , and his goodfathers fact , and deed only , albeit the lands were insecure , holden ward , and lying in the highlands . and found the rental of the lands to be five thousand merks yearly , without distinguishing between stock and teind , though the testimony of the witnesses proves not above three thousand merks , beside the teind ; of which lands , oseburn nor his good-father , had neither title nor possession of buchanbeg ; buchanmore and ballochroon , which are parts of ballandoloch , whereunto the judges did unjustly interpone their authority , superceeding twenty thousand merks , until the right of buchanbeg , buchanmore and ballachroon , were discussed ; and whereas the decreet bears , buchannan to have consented , he denyed the same , neither was there any minut of process taken upon the day of his alleadged consent ; but by an ordinance of the judges half a year thereafter , made upon their memory , which cannot prove against him , not being subscribed by him , at least he might have resiled , re integra , before extracting the decreet , as he did . the defender answered , that whatever was the ground of the processes , yet there was a submission subscribed by both parties , and a report by the oversmen conform , which is express contrair to all that is alleadged : and is sufficient and full probation , arbiters having so great trust. and the decreet beareth , the report made upon the . of february : and albeit the minuts of process were wanting , or contrary , nihil est , because the clerk being publicus proto notarius his solemn instruments make full probation , and the minuts are but the notes taken by him for remembrance , till the full instrument be compleated ; against which , parties may object at extracting , as not conform to the warrands , but not thereafter ; otherwayes the clerks by altering , or losing the minuts , might destroy all decreets , which are the greatest securities of the kingdom . the report also bears , inspection of the parties rights , and consid●ration thereof , and of the debates and informations given in by either 〈◊〉 in write : and if buchannan saw not oseburns rights , it was his fault , that called not for them out of the overs-mens hands , where they long lay , being expired appryzings and infeftments against glengarnock , the ancient proprietar , and against the lairds of buchannan themselves ; so that the report being a decreet arbitral , and confirmed by the judges , and consented to by parties , is most solemn . and as to the consent , it was judicial and palpable , by joyning hands , and needed no subscription ; it be-being most ordinary , that decreets bear , consent of parties ; especially when the consent quadrateth with , and is conform to a process ; as the compearances of parties , whereby decreets became irreduceable , accepting of offices of tutory , or curatory : and so if buchannan had appeared , and said for fourty thousand pound , non faciam vim ; but as for the twenty thousand merks , the right of these lands would be first cleared . it would have been an unquestionable consent , albeit contrary or extrinsick acts require subscription , and ex abundanti , have the same : yet they need not , seeing publica scriptura , by the instrument judicial of the clerks , of supream court , is more solemn than a private write by parties subscription ; and albeit de recenti , at the same time , when consents , or offers are proposed , parties may resile , yet ex intervallo , they cannot : for there is only locus penitentiae in dispositions , or tacks of lands , where writ is requisit , not only as an evidence , but as a solemnity accomplishing the right : but in other pactions and promises , where write is not essential , there is no place therefor . the lords having considered the decreet , and whole warrands thereof , reduced , and turned the same in a libel , ordained o seburn to proceed upon the two supplications , on which the decreet was pronounced , and continued his possession , till the close of the next session , for they found beside , many informalities , the sentence and report of the overs-men , to have been after expyring of the reference , by the warrand thereof , subscribed with their hands : and as to the consent , they found by signature of process under all the then judges hands , that there was no minut of the said consent at the time it was alleadged to have been , but half a year thereafter , made up of their memories : upon which two points mainly they reduced , without discussing the other alleadgences : neither had they respect to buchannans homologations of the arbiters sentences , by taking out diligences conform , and adducing witnesses to prove the rental : nor by acquiescing in his bills to the price ; because there was alwayes some qualities in his consent . laird of lamertoun , contra earl of levin , and alexander kennedy . eodem die . the laird of lamertoun having wakened an improbation against alexander kennedy , and the earl of levin , for improving of several bonds , exhibite by the said alexander kennedy , and made use of by the earl of levin ; lamertoun craved , that the earl of levin , might bide by the bonds , seeing he made use thereof ; the earl offered to abide by them , qualificate● , viz. that he made use of them , as believing they were true bonds ; and that he was not accessory to any falshood , or forgery thereof . it was alleadged , he ought to bide by them simply , for such qualities were contrair to the act of parliament , declaring users of false writs , and abiders by them , to be accounted as accessory thereto ; many of the lords were of opinion , that he should abide by them simply ; but that he might protest under the foresaid quality , in respect it was not proper to the lords , to consider the consequence of his biding by the bonds , which was criminal ; yet alterius fori ; yet it was carried , that he might bide by them qualificate : and therefore he was ordained to give it in in write , that the lords may consider how far they will allow it . mitchels , contra iohn hutchison . iuly . . jean and marion mitchels , having ●pursued iohn hutchison , in anno . for reduction of a decreet , obtained by him against them , as heirs to their father , upon minority and lesion : and also , because their service , the only ground of the decreet was reduced , in anno . wherein there was an act of litiscontestation now wakened . the defender alleadged he got wrong in the said act ; because , he having proponed a defense upon the pursuers behaving themselves as heirs ( no wayes acknowledging their minority ) he alleadged they behoved to prove the reason , as well as the exception , seeing they were both consistent : yet the act ordained him to prove his defense of behaviour ; but did not ordain them to prove their minority . the lords found this alleadgence relevant . it was further alleadged , that the reduction of the pursuers retour is not competent against this defender , to reduce his decreet ; because the said reduction was long posterior to his decreet , and he was not cited to the reduction . the pursuers answered , they needed call none to the reduction of of their retour , but the judge , and clerk , and inquest● and though the defenders decreet was anterior , they did not know the same , having been obtained when they were within twelve years of age , and never charged thereupon , before the reduction of their retour , and so they never knew it , nor were oblieged to know it . the lords repelled this defense , and sustained the reason of reduction , unless the same were elided by the said defense , of behaving as heir . thomas iack , contra fiddess . eod die . eodem die , thomas iack pursues fiddess , alleadging that fiddes having given him in custody , the sum of five hundred merks , in anno . by a ticket produced , bearing , to be keeped by him with his own , upon the deponers hazard ; and that the pursuer for his security , did thereafter go to dundee , and took his goods thither , where he lost the said sum , and all his other goods , by the english taking the town by storm , and plundering it : yet fiddess conveened him before the english officers at leith , who most unjustly decerned him to pay the sum , and put him in prison , till he was forced to give bond for it , and thereafter payed it , unto this defender his assigney , who concurred with him , and knew the whole matter , and now craved repetition condictione indebiti . the defender alleadged absolvitor , because the pursuer made voluntar payment , and so homologat the decreet , and never questioned the same till now . the pursuer answered , it was no homologation , nor voluntar , he being compelled to grant it , and expected to remeid from the english judges , with whom the officers had so grear power ; neither could this be counted any transaction , seeing the whole sum was payed , nor any voluntar consent , nor homologation , being to shun the hazard of law : so that though these officers had been a judicature , if in obedience to their sentence , he had payed , and after had reduced the sentence , he might have repeated what he payed , much more when they had no colour of authority . the lords repelled the defense of homologation . it was further alleadged for the defender , absolvitor ; because he offered him to prove , he required his money from the pursuer , before he went to dundee , and got not the same ; and it was his fault he took it to dundee , being a place of hazard . the pursuer replyed , that after the said requisition , he made offer of the money , and fiddes would not receive the same , but continued it upon his hazard , as it was before . the lords repelled the defense , in respect of the reply : and because the defense and reply were consistent , ordained the parties to prove , hinc inde ; the pursuer his libel , and reply ; and the defender his defense weymes , contra lord torphiohan iuly . . lady m●ray , iean , elizabeth and katharine ●●ymes , pursue the lord torphichane , alleadging that their deceased sister , dam anna 〈◊〉 , having a wodset of . merks , upon the barrony of errot , granted a bond of provision thereof to her daughter iean lindsay , thereafter lady torphichane , and to the heirs of her body , which failzing , to return to the saids pursuers , with an obliegement , that her said daughter should do nothing to prejudge the saids heirs of tailzie ; which bond was delivered by the earl of weymes to the defender , then husband to the said iean lindsay , who oblieged himself to make the same forth-coming to all parties having interest , as accords : yet thereafter , during the marriage , the said iean lindsay entred heir to her mother ; and she and the defender uplifted the wodset sum , passing by the bond of provision : which sum being in place of the wodset , and unwarrantably uplifted by the defender , contrair the bond of provision , known to himself , which he was oblieged to make forth-coming ; he ought to refound the sum . the defender answered , that the libel is no wayes relevant : for if his deceast lady iean lindsay , being feear of the wodset , did uplift the same , and contraveened the bond of provision , nihilad eum , who is but a singular successor , having right from his lady , by contract of marriage , whereof there was a minute at the time of his marriage , expresly disponing this sum , without any mention , ●●knowledge of the bond of provision ; and albeit he knew the fame after his right , nihil est . and as for his ticket , it can work nothing ; though the band of provision were now produced , it being but a personal oblidgment , can oblidge none but his ladies curators , or successors , and if they will alleadge , that he is either heir or successor relevant , and his ticket to make it forthcoming as accords , nihil novi iuris tribuit . the pursuer replyed , that albeit a singular successor , for an onerous cause might have uplifted the wodset , and been free , yet the defender being as the same person with his ladie , and having no onerous cause , but his contract of marriage , wherein there was a plentiful tochar of . lib. provided to him besides this , and having known the band of provision , before the uplifting of the sum , and so particeps fraudis he is lyable to make the sums received by him forthcoming , by the act of parliament , . and also by the common law , in quantum est accratus alterius dispendio . the lords found the lybell and reply relevant and approven , and therefore decerned torphichine to refound the sum. william ker , contra parochiners of cardine . iuly . . willim ker , as executor confirmed to umquhile mr. andrew ker his father , pursues the minister , and parochiners of cardine , for intrometting with his fathers steipend of the kirk of cardine , in anno . and . and for the annatine , because his father died on the of november , . the defenders alleadged absolvitor , because he being collegue minister , placed with the defuncts consent , and the defunct being suspended by the presbetrie , he got right to these years stepends , and obtained decreet against the heritors , and uplifted conform , and so was bona fidei possessor cum titulo . . he offered him to prove , by an act of presbytrie , that at the time of his entrie he was provided to eight hundred merks of the defuncts steipend , by the defuncts own consent . and as for the annat , it was not confirmed , and could be extended to no more but the half of . the pursuer answered to the first , that the presbytrie had no power to dispose of that steipend , by the act of parliament . because the defunct was only suspended ab officio , which makes not the kirk vaick , maxime , seeing the defunct was reponed by the synode , and never desposed , and as to the decreet , at the defenders instance , it was given without calling the defunct , whom he was in mala fide to misken . to the second , that the act of prisbytrie cannot prove , unless it had been subscribed by the defuncts , own hand , matters of steipend not being the proper work of presbitries , but proper for civil judges , especially , seeing the defunct was suspended for preaching for the engagement , . against which that presbytrie protested ; and so the act being eairtester , is the more suspect . to the third , the annat not being in bonis defuncti , but indulged by the law , to the wife , bairns , and nearest of kin to the defunct minister , and so originally their right , though upon occasion of his service , the same needs no confirmation , and the defunct having right proprio jure to the whole year , . surviving both terms anne signifying a year further must be the heal year , one thousand six hundred fifty and four . the lords repelled the first defense , and found the suspension of the minister not to make the steipend vaccand , and had no respect to the said decreet , whereto the defunct was not called . they found also the second defense not probable by the act of presbytrie , and found that the anne needed no confirmation , but that the anne did only extend to half a year more then the defunct had right to proprio jure . laird of lamirtoun contra alexander kennedy farl of levin . eodem die eodem die , the laird of lamertoun , upon the improbation mentioned , iuly . did then desire that alexander kennedy producer of the six bonds quarrelled , might be examined in presentia , and his person sequestrated and secured , and warrand granted to examine new witnesses . the lords superceided to give answer till they considered the process , and now having considered the same , and finding , that the direct manner of improbation was not competent , because the witnesses were dead ; and that the pursuer had insisted in the indirect manner , and had obtained warrand for inspection of the dispositions taken in the cause , both of alexander kennedy himself , and of the witnesses then adduced , and had given in articles of improbation , and the defenders articles of approbation , replyes and duplyes both which being considered by the lords , they found grounds of suspition● and therefore granted all the desires of the supplication , and ordained alexander kennedy to be keeped close prisoner in the tolbooth , till he were re-examined , and witnesses hinc inde , to be examined by some of the lords in the vaccancy , upon what either parties should desire , which seemed peri●ent to the saids lords examinators . dame elizabeth fleming contra her children november . . dame elizabeth flemming relict and executrix to umquhile malcome flemming merchant in edinburgh , and tutrix dative to his bairns , having formerly pursued an action of exoneration against her children , in which she gave up as an article of her accompt a hundred pounds sterling , payed by her to patrick scot of langshaw , whereupon she had retired her husbands bond , and taken a discharge upon the back thereof , and had taken her husbands name therefrom , whereanent the defenders alleadged , that this being a cancelled paper , could establish no debt against them , neither could patrick scots discharge prove against them that it was a debt restand by their , father and payed since his death , as patrick's testimony and oath could not prove , much less his declaration in wri ; whereupon , the lords had ordained patrick scots oath to be taken ex officio ; upon the truth of the debt ; and when it was payed to him , and by whom ; who having d●poned , that it was payed by this pursuer after her husbands death . the lords did allow the article : now the cause being wakened at the pursuers instance , and sir iohn gibson now her husband , one of the clerks : the defenders further alleadged , that patrick scots oath ought not to have been taken , and could not be sufficient to prove against them , that this was a true debt , and payed by their mother , but it behoved to be presumed , if it was a debt at all , to have been payed by their father , and the bond cancelled by him , and left amongst his writs , and found by their mother there ; and now after her second marriage made use of against her own children ; albeit she made no mention of it before : and therefore the cancelled bond being no writ● subscribed by the defunct , cannot prove , nor can patrick , scot's discharge , or his oath make it up ; nor any other thing , except the defenders own oath , or writ ; seeing witnesses are not admitted in cases of this importance . secondly , though it were evidently , and legally instructed and proven , yet the debt was payed by the mother , she can have no allowance of it , because she payed voluntarly , not being tutrix nor executrix at that time , and cancelled it , and took a discharge of it ; and so it is both unwarrantably done , and must be presumed to have been of purpose , to gift it to her children out of her opulent fortune , having given above fourty thousand pounds to the second husband . the pursuer answered . that the alleadgances were most irrelivant , for as to the first , anent the probation of the truth of the debt , and payment by the executrix ; it is sufficiently proven by the cancelled bond , at which the witnesses names are yet standing ; by patrick scot's discharge and oath , already taken , who is a person inconcerned ; and above all exception , and if need bees , it is offered to be proven by many witnesses above exception , who saw the bond un-cancelled after the defuncts death , which is abundantly sufficient , to take away the presumption , that it was retired , and cancelled , by the defunct himself , and that such probation was legal , and warrantable ; was formerly found by the lords of session , upon the th of march , one thousand six hundred twentie nine , betwixt falconer and blair , where an executor pursuing the hetr , for relief of a moveable debt , produced only the defuncts cancelled bond , without a discharge , and these same points being alleadged ; the lords found , that the action ought to be sustained , and the truth of the debt , and the payment after the defuncts decease , to be proven by the creditors oath ; or after his decease by the heirs oath ; and it is unquestionable , that the lords , in matters obscure , as to the probation , may ex ●ob●li officio take all manner of tryal , for finding out the truth , by oaths of parties , witnesses , or any other manner of way , in matters of greatest moment , which being here already done , and the testimony so clear , and of so unquestionable a person as patrick scot , there remaines no doubt , but the debt was truely owand , and payed by the relict , after her husbands decease . as to the second point , there is no necessity in law for executors , or tutor● to have sentence , unlesse it be in cases of competition , to secure themselves , against other creditors , pursuing afterwards ; or cases dubious , where the probation is not clear , but to pay a clear debt without burdening pupils with unnecessary expenses of law , against which the pupils can now alleadge nothing , wherein they were prejudged , by voluntar payment , such payments were never repelled : especially in the case of a woman paying so soon after her husbands death , nor can it be presumed a donation , because donations are never presumed , but must be clearly proven ; and it is very ordinar to those who have interest to pay the debts , and confirm afterwards . the lords considering the whole circumstances , found the article not to be allowed , a be●t they were clear , that the debt was true , and really payed by the executrix ; yet seeing she payed , not being then executrix , nor tutrix ; and cancelled the bond , without taking assignation ; they thought she could not distresse her children with it , but that it was a donation in their favour . dame elizabeth flemming contra iohn ●ibson and flemming . november . . inter eosdem , there was another article of the said accompt , whereby the said dame elizabeth flemming , having lent out a sum of money , in the name of mal●ome and andrew flemming's , two of her bairns , she craved , that the said sum should be taken in part of payment , of the portions of the whole bairns ; or at least , in so far as was more nor the portions of these two bairnes , might be declared , to belong to her self . it was answered for the bairns , that this bond was a donation by the mother , out of her own means , in favours of her children ; and could not be imputed as a part of their means , because , first the bond did bear the money to be lent by her in her childrens name , and not in her own ; neither did it bear to be as a part of the bairns means , nor in satisfaction thereof , as she had specially taken other bonds in these same bairns names , and so presumed consideratly , to gift the sum to these two bairns , of whom one was a pocthmus child , born eight moneths after his fathers death , and so was not thought upon by his father , nor provided with legacies as the rest were , secondly , the tenor of the bond bears expresly , the sum to be payable to the mother , in liferent ; and one of the children is substitute heir to another , in case they had not children of their own , ( whereas another would have fallen heir of lyne to them , viz. an intervenient brother ) and to them both the mother her self , and her heirs were substitute . the pursuer answered , that supposing this were a donation ; yet it being a free gift , the mother might do it upon what terms , and conditions , and what way she pleased . ita est , by the tenor of the bond. it is provided , that she shall uplift the sum , during her life , and the children after her decease ; by which clause , she is more nor a naked life-renter ; and seeing this clause must be interpret cum effectu , the only meaning of it can be , that during her own lifetime , she might uplift the sum , and dispose of it at her pleasure : and so evacuat the fee in her childrens persons , seeing there is nothing to oblidge her to re-imploy it for the bairns use , if she should once uplift it , it , as when a father infeft his son in his lands , reserving his own liferent , with power to dispone , during his own life ; there the father is liferenter , yet by that reservation , he may annull and evacuat the sons fee , even so here : for which two practicks of dury was adduced , that a father providing a sum to himself and his wife , and the longest liver of them two ; and failzing of them by decease , to his son , the son being infeft in fee : and in the other practick , the father being expresly infeft in an annualrent for his lifetime ; yet the lords found , that the father , during his lifetime , might uplift the sum , and dispose of it at his pleasure . the lords found , by the tenor of the bond , that the mother had constitute her self expresly liferenter , and the children feears : and that the power to charge for the money , did bear nothing of a power to her to dispose of it ; but was only the ordinar reservation adjected after the clause of annualrent , in these words , but prejudice of the said annualrent to her , during her life , and after her decease , to ●he bairns to uplist the money ; and so , that albeit she was not expresly oblieged to re-imploy it ; yet she constituting her self liferenter , without a power to dispose of the fee , did sufficiently obliege her to re-imploy the sum . and as to the practicks , the case clearly differed , in this ; that there the father and mother were not constitute liferenters in the sum , though the father was mentioned liferenter , of an annualrent , accessory to the sum : but the clause being to the father and mother , and after their decease to the son. it was clear by the common practicks , that the son was not feear , but heir substitute ; so that the father was feear , and might dispose at his pleasure . november . . in the foresaid cause , it was further alleadged for the tutrix , that the bond in question could not be accounted a donation , notwithstanding the reasons before adduced , in so far as she was debitor to the saids two bairns , for their portion , quia debitor non presumitur donare ; and therefore , provisions granted by husbands to their wives , albeit they mention not the contract of marriage , but love and favour : and so in the terms of a donation , yet it is alwayes interpret , to be in satisfaction of a prior obliegement in the contract of marriage , and not , that both the posterior and former provision , are due to the wife . it was answered for the bairns , that though donation be not presumed , yet when by the nature of the deed done , it appeareth to be animo donandi ; i it is truly such , albeit it bear not the name of a donation , especially in this case : which law excepteth from that general rule , that parents bestowing sums for the use of their bairns , from their natural affection , are alwayes presumed to gift , and not to satisfie any former provision , unless it were so exprest : upon which ground an infeftment granted by a father to his son , though but a bastard , redeemable upon a sum of money , was not found in satisfaction of a former bond , granted by him to that natural son , as is observed by dury , upon the . of iuly . stuart contra fleming : but here , not only is this bond , not in satisfaction of the former portion ; but bears a clause of a liferent , and of a return to the mother , which are incompatible with an intention of satisfaction . the lords found the bond to be in satisfaction of the bairns portions , pro tanto , and a donation pro reliquo ; which many thought strange , seeing a bond of . sterling , mentioned th . instant , re●eired and payed by the mother , and being proven by patrick scots oath , so to have been done , to the satisfaction of most of the lords , which was clogged with no provision , was not allowed to be in satisfaction of these bairns portions . bosewel contra bosewel . november . . john bosewel pursues bosewel of abden , as representing henry bosewel his father , for payment of a . pounds , due to the pursuer , by the said umquhil henry , and insisted against the defender , as lucrative successour , by accepting a disposition of lands , and heritage , from the said umquhil henry , whereunto he would have succeeded , and was therein his appearing heir . the defender alleadged , he was not lucrative successor ; because the disposition was for causes onerous . the pursuer answered , non relevat , unless it were alleadged for causes onerous , equivalent to the worth of the land ; as was formerly found in the case of elizabeth sinclar contra e●phingst●●● of cardo●● . the defender answered maxime relevat , to purge this odious , passive title , of lucrative successor , which is no whe●e sustained , but in scotland ; specially , seeing the pursuer hath a more favourable remeid , by reduction of the disposition upon the act of parliament , . if the price be not equivalent , and there it is sufficient , to say it was for a considerable sum , or at least , it exceeded the half of the worth , for there is latitude in buying and selling , and as an inconsiderable sum could not purge this title ; so the want of an inconsiderable part of the full price , could as litle incur it . the lords before answer , ordained the defender , to produce his dispositior , and all instructions of the cause onerous thereof , that they might consider if there was a considerable want of the equivalence of the price ; here the defender pleaded not , that he was not alioqui successurus , the time of the disposition , being but consing german to the defunct , who might have had children . dowglasse contra iohnstoun . eodem die . eodem die , in the competition between dowglass in abernethie , who confirmed himself executor creditor to gilbert weymes in dumblane , where gilbert dwelled ; and iohn iohnstoun as executor , confirmed to the said gilbert , by the commissars of edinburgh ; because gilbert in a voyage from scotland to holland , died at sea. the lords found the commissars of edinburgh to have no right , unless the defunct had died abroad , animo remanendi , this interlocutor was stayed , till the commissars were further heard . marjory iamison contra rodorick mccleud . december . . mariori iamison , relict of umquhil mr. iohn alexander advocat , pursues rodorick mccleud , for payment of a bond of pension , of . merks yearly , granted to her husband , bearing , for service done and to be done . the defender alleadged the libel is not relevant , unless it were alleadged , that mr. iohn had done service constantly , after granting of the of the pension , which the lords repelled . the defender alleadged further , that he offered him to prove , that mr. iohn did desist from his imployment as advocat , after the pension , and became town clerk of aberdeen ; and the pension being granted to him , who exerced the office of an advocat at that time , must be persumed for his service , as advocat . the lords repelled this defense , in respect of the bond of pension , bearing , for services done and to be done , generally . sir robert farquhar contra lyon of muiresk . eodem die . sir robert farquhar , pursuing a reduction of a disposition , against iohn lyon of muiresk , upon circumvention . the lords granted certification , unless not only the extract , but the principal disposition were produced , in respect they were registrate at that time , when the principals were given back to the parties . thomas white contra crocket . december . . thomas white pursues patrick crocket in eliot , to make payment of the sum of . merks , which the pursuer alleadged he had in a leather-girdle , when he lodged with crocket , being in an in-keepers house , and that the defender promised that the pursuer should want nothing , after the pursuer had shown him the said girdle ; yet the defender came ordinarly in the chamber , where the pursuer lay that night , and he wanted his money from under his head , which he declared , and shew to the defender the next morning : and therefore , according to the law , nautae caupones stabularij &c. ( which is observed in our custom ) the defender as keeper , ought to be decerned to restore . the question was here only , of the manner of probation . the lords found all the libel relevant to be proven , pro ut de jure , and declared , that these being proven , they would take the pursuers oath , in litem , upon the quantity . baillie of dunnean contra town of inverness . eodem die . baillie of dunnean pursues the town of inverness , for violent intromission in his moss , and molesting him therein , both parties were content to dispute , as in a molestation . the defenders alleadged absolvitur ; because the town of inverness was infeft in their b●rgh and burrow-lands , with common pasturage in montkapl●ch , and offered them to prove , the moss contraverted , was a part of montka●loch , and that they have been in constant possession thereof accordingly . the pursuer replyed , the defense ought to be repelled ; because he offered him to prove , that he was infeft in his lands of dunnean , with parts and pertinents ; and that the moss contraverted , was proper part and pertinent of his said lands , and that he was in use to debar the defenders therefrom , and to get moss mail for tollerance , to cast therein , and produced the same , under the hand of nine of the citizens , and one by their clerk ; and therefore , being in libello , ought to be preferred in probation . the lords before answer , granted commission to examine witnesses , hinc inde , upon the possession of either party : which being reported , the defenders craved the same , with the dispute , to be advised . the pursuers procurators alleadged , there was yet no litiscontesta●ion , and they were not insisting , and the defenders could not compell them to insist , without a process to insist , with certification : in which case , they would get a day to insist . the lord found , that the probation being taken before answer , was equivalent to litiscontestation , as to the points proposed , and that they mi●ht proceed , both to advise the points of probation , and relevancy together , and might instantly decern accordingly ; albeit it hindred not the parties to propone other alleadgences , in jure , then it were in the dispute , as in ordinary litiscontestation : and therefore the lords considered the parties infeftments , specially that of the town of inverness , bearing , with liberty to them to cast fail and divote , in the month of kaploch , and several other months , according as they were accustomed of before . which clause the lords found to be qualified and taxative , and not to give an absolute right of commonly , but only such as they had before , which behoved to be cleared by posterior long possession ; and found by the depositions of the witnesses , that that part of the town of inverness , on the north●side of the water , only had been in possession , by casting peats in the moss contraverted , and that the same is a part of month kaplock , and that the pursuer had proven the right of property therein : and therefore ordained the town of inverness , on the other side of the water , to desist from the moss contraverted , and granted commission to se●tle the parties , anent their place , in casting in the moss , or in case of variance , to report . iean dalmahoy contra hamiltoun of binnie . december . . jean dalmahoy charges alexandee hamiltoun , of binnie , for a tack-duty of . merks , due to her for her liferent-lands ; he suspends on this reason , that he has taken the benefit of the late act of parliament , between debitor and creditor and this sum being above . merks , stands thereby suspended for six years . the charger answers , non relevat , because the act extends not to rents , or tack-duties of lands , albeit exceeding . pounds ; but only to borrowed sums , and other money bearing annualrent ; which in recompence of that forbearance , are accumulat with the principal sums . the lords found the act not to extend to rents , or tack-duties , and therefore repelled the reason . iames hoom contra abraham hoom. eodem die . james hoom as assigney to a reversion , and order of redemption used by the earl of hoom , against abraham hoom , pursues declarator of redemption , and removing in the same process . the defender alleadged absolvitor , because the reversion expressed not assigneys ; and therefore , the defender cannot be oblieged to renounce to the pursuer , an assigney . secondly , at the time of the confignation , the earl required the wodsetter to subscribe the renounciation , to a blank person , upon a back bond , declaring the same to the earls behove , which he was not oblieged to do by the tenor of the reversion . thirdly , no declarator , till the earl produce the sum at the bar , seeing he lifted it himself . the lords found , that albeit the reversion expressed not assigneys ; yet seeing the order of redemption was used , by the earl himself , the assigney had sufficient right , but decerned the defender to renounce only in favour of the earl and his heirs , but not to dispone to any other person , as the earl desired ; and declared , there should be no decreet extracted , till the consigned money were produced , and given up , neither did they decern in the removing , till the parties were further heard thereupon . alexander tailzifer contra sornebeg . eodem die . alexander tailzifer , as heir appearand to umquhil tailzifer of redheus , pursues mistresse margaret forrester , his uncles relict , and iohn schaw of sornebeg , her husband , for exhibition , ad deliberandum , of all writs granted , not only to the defunct , but also granted by the defunct , to his said relict , or any other person . the defender alleadged , non relevat ; for writs granted by the defunct to the defender , or other persons ; because , albeit the pursuer were entered heir , he had no interest for exhibition thereof , unlesse there were clauses in his favour therein , & nemo tenetur edere instrumenta contra se ; and if this were sustained , it were the way to make patent , all the charter chists in scotland , at the instance of appearand heirs , under pretence to deliberat , but in effect to pick quarrels , and find the weaknesse thereof . the pursuer answered , maxime relevat ; for seeing the law gives heirs the benefit of deliberation , they must have the necessary means thereof , by inspection , not only of the benefite , but also of the burden of the defunct , without which they cannot know , num sit damnosa haereditas : especially in this case , against a relict , who probably might have had influence upon the defunct husband , to grant right to her , that might evacuat the heritage : and in this case , the appearand heir had a more large interest to crave exhibition , nor the heir entered , who could only crave exhibition for delivery , transumpt , or registration , and so behoved to libel a peculiar interest ; but the appearand heirs interest , is only ad deliberandum : and therefore , the exhibition , as medium thereto , must reach to all , whereupon he ought to deliberat . especially the defuncts debt ; and albeit it be true , nemo tenetur edere instrumenta contra se , to found , or give title to the pursuers action : yet he having title by the law , to crave inspection for deliberation , hath good interest : yea , if he produce a title in himself , he may even force the defender to exhibite writes , ad probandum , by an incident , as well as third parties , to whose writ he hath no right , save only to bear testimony for him . the lords having heard this case in their presence , because the point had been variously decided , as to writs granted by defuncts , found the libel relevant ; not only for all writs , granted to the defunct ; but also granted by the defunct , to his relict bairns , or servants , in his family , at the time of his death , being such writs , upon which no infeftment followed ; for as to these , they thought the registers may give as much evidence , as was sufficient to deliberate , and would not upon this ground , open charter chists , for shewing real rights , and the plurality carryed , that even personal rights , granted to strangers , should not be produced , hoc modo ; severals being of the opinion , that debts , discharges and personal rights , should be thus exhibite . in respect that heirs in scotland were lyable simpliciter , for all the defuncts debts : and therefore , should have inspection , as well of his debts , as of his estate , as was found before , between the lairds of swintoun and west-nisbit , observed by dury , february . . katharine kinross contra laird of nunthil . december . . katharine kinross , having charged the laird of nunthil , for payment of a bond , granted to her first husband , and the longest liver of them two , and their heirs ; which failzing , his heirs ; he suspends on this reason , that she is but liferenter , and the defunct being infeft in fee , she would not renounce , but the heir : which the lords sustained , and found the letters only orderly proceeded for the annualrent . the earl of roxburgh contra mcdowal of stodrick . december . . the deceased earl of roxburgh , having obtained decreet of the commission , for the valuation of teinds , in anno . against mcdowal of stodrick ; this earl having right from the deceast earl , pursues stodrick for payment of the valued duty . the defender alleadged , no process , because he had intented reduction of the said decreet , and improbation of a procuratory mentionated therein , to have been produced by mr. robert trotter , warranding him to consent for stodrick , to that valuation ; which is the only ground of the decreet , without either dispute or probation . in which reduction , terms are taken to produce ; and being prejudicial to this action , it must be first discussed . the pursuer answered , that there can be here no prejudiciallity , which is only betwixt two principal actions : but here , res est judicata , by a decreet , & stat sententia , & dubius est eventus litis ; neither can reduction , which is a petitory judgement , sist the pursuers process , which is a possessory judgement , upon pretence of prejudiciallity ; otherwise possession might still be inverted upon such pretences ; nor can the earl be put from his possession thereby : especially for the years preceeding the intenting of the reduction . the lords repelled the defense , as to the years , ante litem motam , by the reduction , but sustained it for the years since , in respect the earls possession was not clear , and that the valuation was exorbitant , near as great as the stock . hellen hepburn contra hamiltoun of orbestoun . december . . hellen hepburn , as executrix to her father humbie , pursues sir iames hamiltoun of orbestoun , for payment of a . merks , due to her father by bond. the defender alleadged absolvitor , because there being a bond of . pounds granted by balhaven , humby , prestoun , and orbestoun , for the use of the late duke of hamiltoun , but there being nothing to instruct that it was the dukes debt : yet there was a transaction with the dutches of hamiltoun , for a lesser sum , whereof balhaven , prestoun and the defender , had payed their part : by which transaction , the pursuers tutrix and overseer , did agree to quite this bond , in respect that her father was acquited of any share of the bond , of . pounds . the pursuer answered : first , that the defense ought to be repelled ; because , being but a verbal agreement , before writ was subscribed , either party might resile . secondly , the transaction cannot be instructed , there being no write , and witnesses are no competent ; neither can the tutrix oath prove against the pupil . the defender answered , to the first , that the transaction being pactum liberatorium , it required no write , and so there was not locus penitentiae . and as to the probation of the transaction , though tutors oath of knowledge , of any debt of the pupils predecessors , will not prove against the pupil , because the tutor is singularis testis , and not in officio : but a tutors oath as to deeds done by himself , in officio , would sufficiently prove the same . the lords thought there was not locus penitentiae , from the tra●saction , though but verbal : but as to the manner of probation , they ordained the ●utrix , and overseers oaths to be taken , ex officio . gordoun of gight contra abercrombie of birkbog . eodem die . sir alexander aberc●omb●e of birkbeg , having obtained decreet of of ejection , against sir george gordoun of gight , for re-possessing him in certain lands , and paying the double rent for the violent profits . gight pursues reduction of the decreet , on these reasons● first , because there was no law nor practick , to make the violent profits of lands , without burgh , to be the double of the rent ; which is only competent by custom , in prediis urbanis . secondly , the ejection was prescribed , not being intented within three years , conform to the act of parliament . thirdly , gights defense of entring , in vacuum possessionem , was only found probable , scripto vel juramento , whereas being facti , it was probable by witnesses . the lords repelled the first and second reasons , as competent , and emitted in the decreet , and as to the third , the decreet did bear the alleadgence in the decreet , to be gights entring into void possession , with consent of partie , which consent not being qualified by any palpable fact was not probable by witnesses . iames hamiltoun contra the tenents of overshe●ls . december . . james hamiltoun merchant in glasgow , having right to two apprysings of the lands of oversheils , pursues the tennents for mails and duties , and after litiscontestation , iohn rollane writer compears for his interest , and produces an apprysing , at his instance ; with a charge against the superiors . it was alleadged he could not be admitted in this state of the process . the lords admitted him , in respect he craved no alteration to be in the litiscontestation , but concurred therein , and craved preference to what should be found due thereby : the said iohn being admitted , alleadged , he ought to be preferred , because he had charged the true immediate superiour , whereas the other two apprysers had taken infeftment , as if the lands had holden immediatly of the king . it was answered for iames hamiltoun , that he ought to be preferred , because he was infeft long before iohn rollane , and supposing his infefment were not of the immediate superiour , yet being in possession , by vertue thereof , five or six years , he hath the benefit of a possessorie judgement , and his infeftment cannot be taken away without reduction . the lords preferred iohn rollane , and granted not the benefit of a possessorie iudgement without seven years possession . iohn boyd contra laird of niddrie and edmonstoun . eodem die . john boyd , as assigny constitute to a bond of a thousand merks by wolmet , charged niddrie the debitor , who suspends on double poynding : in which compearance was made for iohn boyd , who having declared upon oath , that the assignation was to his behove , for the satisfaction of the sum of fourteen hundred pounds , and that the remainder was to wolmets own behove ; according to which he had granted back bond to wolmet , and thereafter granted a second back bond to major bigger ; oblidging him to make the sum forthcoming to biggar , which was done before any arrestment ; but depones , that he knows , at that time his first back bond was given , and that a discharge of his first back bond produced , was by a mistake , keeped up by major biggar , and not delivered up to him till within this few days ; upon this oath , the laird of edmonstoun , who had arrested all sums due to wolmet in niddries the suspenders hand , in iune . alleadged , that the ought to be preferred to biggar , because it is clear , by the oath , that the superplus of the sum was to wolmets behove , and he having arrested it before the discharge of iohn boyds first back bond was delivered to iohn boyd , or expresly delivered , to iohn boyd's behove , or otherwayes , that the first back bond were re-delivered , no deed that iohn boyd could do without wolmets expresse consent , could prejudge wolmets creditors . it was alleadged for biggar , that albeit the first back bond was not delivered back to iohn boyd before the arrestment , nor the discharge delivered to him , yet wolmet having subscribed the discharge , and delivered it , albeit it came not to iohn boyds hands , it was sufficient to take away the first black bond . the lords preferred the arrester , and found the discharge could operat nothing , unlesse it were delivered to iohn boyd , or some person to his behove , before the arrestment , for they thought if discharges by creditors put in a third parties hands , not delivered to the debitor , should be sufficient ; it would e●ervart all arrestments , unless the deliverie were exprest to the debitors behove . homes contra iohn bonnar . december . . mary and homes , as donatar to the escheat , and liferent of umquhile iohn home , pursued iohn bonnar , for compt , reckoning , and payment of the sum of . merks due to the rebel , for the price of a house . the defender alleadged absolvitor , because he had bona fide made compt , reckoning and payment to mr. alexander home , assigny constitute by the rebel , before any citation , or diligence done against him , to put him in mala fide , so to do , and produced the assignies discharg , bearing , that the defender had made compt with the assigny● and that there remains only the sum of . merks , which he acknowledgeds to have received , and therefore discharged him of the whole . the pursuers alleadged the discharge , not bearing payment of the whole sum , but only of . merks ; nor yet bearing● that the instructions , were given up to the assigny cannot exoner the defender ; but he must yet re-produce the accompt , and instructions thereof , likeas he has produced a great part thereof in this process , because no discharge could be relevant , to liberat this defender , but only payment made bona fide . the lords found the discharge sufficient , to liberat the defender ; mainly , because , albeit the discharge mentions not the instructions to be given up , yet the defenders was not oblidged to preserve the same , or be at the hazard thereof . the pursuer further offered them to prove , that the defender had yet in his hand , the accompt and whole instructions , and therefore ought to repreduce the same , that the lords might consider , whether the rebells assignyes had allowed any thing to him , which ought not to be allowed , and did belong to the donatar , which the lords sustained . iames dewar contra countess of murray . december . . james dewar , pursues the countess of murray , for ejecting him out of certain lands , whereof he had tack , and spuilzing from him certain goods . the defender alleadged absolvitor : because there was a clause in the pursuers tack● providing that if two years dutie run together , the tack should expire , and in that case he renunced the tack , and thereafter the pursuer having compted with the defenders chamberlain , by writ produced ; he acknowledged himself debitor , in such sums , and such duties for bygone years , with this provision , that if he failzied in payment thereof , my lady should , ( at her own hand , ) intromet with the corns , and others lybelled , which were disponed to her , for satisfaction of the rent ; and likewise , it should be leisum , to my lady to set the lands to any other tenent thereafter , at the term of mertimess , and to dispose thereof , at her pleasure . the pursuer answered , non relevat , unlesse by authority of a judge , the failzie had been declared . the defender answered , maxime relevat , because declarators are only necessar , in reversions , back-tacks , or infeftments , being of great importance ; but not in ordinar tacks , betwixt master and tenent . the lords found the defense relevant , founded upon the accompt , and bond ; in respect of the tenor thereof as a foresaid ; but would not have so done upon the clause of the tack , unless it had born expresly a power to enter to the possession at any time brevi manu . the pursuer further replyed , that the defense ought to be repelled ; because he offered to prove , before the ejection , he had payed a great part , and offered the rest . the lords having considered the instructions of offence produced , found , that it was not speciall , bearing any sum of money produced , or offered , and that there was no consignation following thereupon ; and therefore sustained the defense , notwithstanding the reply . earl of rothes contra countess of buck●leuch . december . the earle of rothes ; as donatar to the waird of the countess of buckcleugh , and the said countess , for her self , pursued the tutors of buckcleugh , for exibition of the charter chist , and heal evidences , and writs therein , that the donatar may have inspection thereof , to the effect he may know● what lands are waird . the tutors compeared , and disclaimed the pursuit , at the pupils instance , and alleadged . first , no process , till the countess were called dly , the lybel is not relevant , to conclude inspection of all writs whereunto the donator can pretend no interest dly . non relevat for any writs , because no body is oblidged edere instrumenta contra se. thly , if there were any ground for this pursuit , the lands holden in waird , behoved to be particularly lybelled . the lords repelled the first defense , inrespect the countess was in processu , and found the second defense to restrict the inspection , only to the countess and her sister and father , there retours , and warrants thereof , and no more , unlesse the pursuer condescend particularly of other waird lands , and appointed one of their number to have inspection of the charter chist , who should show the the procutators of either partie such of the writs as they found were waird . hew● montgomerie contra lord kirkcudbright . eodem die . hew montgomerie of grainshaw , and meclellane his spouse , pursues the lady kirkcudbright , for ejecting them out of the five pound land of overlaw , and craved re-possession , and payment of the maills and duties intrometted with . the defender alleadged no process , because it is not alleadged , that the pursuers was in natural possession ; for only the natural possessors can have decreet of ejection , because , if there be no deed of violence lybelled , but only intrometting with the maills and duties , ejection is not competent , nor any violent profits , but only action for maills and duties , against the tennents , or intrometters . the pursuers answered , that ejection may be competent , though the pursuer was not in natural possession , when a tennent is ejected , and a stranger , without interest , enters in the natural possession ; albeit the tennents should collud , or neglect , the heritor having but civil possession , by uplifting of maills and duties , needs not warn the ejecter ; but may crave to be entered , to the natural possession , and the violent profits . the defender alleadged , the case is not here so , unlesse it were alleadged , the tennents were cast out ; but the defender may defend the right , to the maills and duties , upon a better right then the pursuer . the pursuer answered , that he declared , he craved only re-possession , to the ordinar profits . the lords ordained the parties to dispute their rights to the maills and duties , and possession , as in a double poynding , and as if the duties were yet in the tennents hands . the defender alleadged further , that she hath right to the maills and duties ; because she offered her to prove , that the pursuers father in law granted a back-band , oblidging himself , and his heirs , to re-dispone these lands to umquhile robert lord kirkcud●right , from whom the saids lands were appryzed , to which apprysing the defender hath right , and thereby has right to the back-bond , and that the defenders wife represents her father as heir , or at least as lucrative successor after the back-bond ; and so as he might thereupon have debarred the grant of the back-bond , so might the pursuer , as representing him . the pursuer alleadged , . non relevat , because the said back-bond is but a personal obligation , and the defender had thereupon no real right , but only to the superioritie ; because , by discharges of the few-dutie produced , he acknowledged the pursuer to be proprietar . dly , if any such back-bond was ( no way granting the same , ) he offered him to prove , that it was conditional ; so soon as the said umquhile robert lord kirkcudbright should require : ita est , he has never required . the defender alleadged , he had done the equivalent , because in a double poynding formerly pursued be the tennents , he had craved preference , and the pursuer alleadged , upon the condition of requisition in the back-bond , and also that be the back-bond , the granter , and his wifes liferent was preserved : whereupon the defender was excluded . the lords ●●und the alleadgeance of the said double poynding was not equivalent to the requisition ; and therfore found the replyes relevant , and assigned a day , to the defender , to produce the back-bond , and to the pursuer ●●●●prove the qualitie● thereof , and so found the reply not to acknow●●ge the defense , but reserve it to either partie to alleadge contra ●oducenda , and found the personal obligdement sufficient to d●bar the pur●●●● albeit the defender had no other real right , seeing thereby she was oblidged to grant a real right to the defender . alexander barns contra applegirth . ianuary . . alexander barns having ( conform to the act made by the iudges , ) obtained letters of horning summarily , at his instance , as heir to his brother iames b●rns , upon production of his retour , and a bond granted by iohnstoun of applegirth ; and thereupon , having denunced him , and apprized his lands ; applegirth suspends , on this reason , because the foresaid act of the iudges was now void , and by the late act of parliament , confirming their judicial proceedings , liberty is granted to quarrel and reduce them upon iniquity , and this was iniquitie to charge him summarily , contrair to law. the charger answered non relevat , because he followed the order in use at that time ; and the liberty of quarrelling is , for unjustice in the matter , and not in the order of procedor ; for then all their debates would be null , because they proceeded not upon continuation , and letters . the lords sustained the charge , as a libel , to the effect , the suspender might have his defenses , ( if he any had ) to be proven not i●stantlie , but upon terms , but declared the apprysing should stand valid , for whatsomever was found due , but prejudice to the horning , as accords . sir alexander hoom of st. bathanes contra orr and pringle . ianuary . . sir alexander hoom of saint bathanes , having pursued improbation and reduction , upon inhibition against iohn orr , and wate● pringle , and insisted for all writs of the lands in question , made to the defenders predecessors , and authors of the lands in question , and the defender having alleadged no process , for writs made to his authors ; unlesse they were called ; and having condescended particularly on , the authors to be called . the pursuer offered him to prove , that these authors were fully denuded , in favours of the defender , and that the writs were in the defenders own hands . the defender answered non relevat , though they were in his hands ; because his authors being lyable for warrandice , ought to be called , to defend there own rights . the pursuer answered , the defender might intimate to them the plea. the defender answered , he was not oblidged to intimate the plea ; but the pursuers to call the authors , in this case , the summonds was sustained , for his authors writs , in anno one thousand six hundred fiftie nine years . and now the pursuer insisting , for the defender , taking a second time to produce . the defender having a reviewe of the said act , and interlocutor . the lords reponed the defender , and would not sustain the pursuit , or act , as to the authors rights uncalled . tippertie contra his creditors . eodem die . innes of tippertie , being charged by several of his creditors ; suspends , and alleadged payment made by the suspenders son to them . the chargers answered , non relevat ; because they declare the charge to be to that sons behove , who payed them , so that they must alleadge , it was payed by his means . the suspender replyed , that seeing they declared it to be to his sons behove , the payment was sufficient , because he offered him to prove , by a transaction , the son was oblidged to pay his debts . the charger answered ( denying any transaction , ) if it were proven , the suspender behoved to instruct his part of it performed . the lords found the reasons and reply relevant , reserving the said alleadgance against the transaction , when produced . james seaton contra anothonie rosewall . jannuary . . james seaton and others , pursue anthonie rosewall , to hear it found and declared , that two apprysings , to which he had right , were fully satisfied , by his , and his authors intromission , within the legalls respective , in the compt. the defender alleadged , he was only comptable , according to his intromission , conform to the act of parliament one thousand six hundred twenty one , anent apprysings , and not according to a rental of the lands ; as they payed , when he entred . the pursuers answered that , that they could not charge him by his yearly intromissions , which they could not know , but he behoved to charge himself with the rent of the lands , as they payed at his entrie thereto , and if any deductions , or defalcations were in subsequent years ; by necessary setting of the lands , at a lower rate , poverty of the tennents , or waste , he behoved to condescend there upon , and their the reasons , and veri●ty thereof , for in law , an appryzing giving jus pignoris pratorij , the appryser is comptable for his diligence , having once entered in possession , and thereby excluded the debitor , and con-creditors from the possession . it were against law and conscience , to say , that if he should abstain , and suffer the tennents to keep the rent , or depauperat , or the lands to be waste , without any diligence , that his legall should thereby expire , and the debitor and creditor should be excluded ; as was found in the case of the earl of nithisdale , and countess of buckcleugh , and was several times so found , be the lords before . the lords found the defender comptable by a rental , as the lands payed the time of his entry , but prejudice of his just defalcations , he clearing a reasonable cause thereof , and proving the truth of the same ; for they thought , that albeit , apprizers are only comptable for their intromission , that is only for such parts of the lands , as they intend only to possesse , and not for these they never possest ; yet in so far as they once entred to possesse , they must do diligence . it was further alleadged , that no allowance ought to be given to the defender , of a composition he had given to the superiour , in respect a prior appryzer had given a composition before , and so he was oblidged for none . the defender answered , that both the prior and posterior composition was within a years rent , which was due to the superiour , which the lords allowed , seeing it was not alleadged that the composition of a years rent was discharged by the superiour , but only according to the custome of the burgh , where the lands lay , so much marked upon the precept received in name of composition . earl of lauderdail , contra tennents of swintoun . ianuary . . earl of lauderdail , as having right to the forefaulture of the barony of swintoun , pursues the tennents for maills and duties , george livingstou , one of them alleadges , that he must be assoilzied from one years dutie ; because he offers him to prove , that it is the custom of the barony of swintoun , at least of a distinct quarter thereof , that the tennents do always , at their entry , pay half a years rent , and are free of rent at the term they remove ; and so do all a long pay a year , at the least half a year before the hand , and subsumes , that he has payed accordingly to swintoun himself , for a terms maill , due for the crop which is after the pursuers right . the pursuer alleadged non rel●●at , against him a singular successor , or against the king his author ; because , that partie that hath right to the land , hath right to the fruits , and so to the rents , which is payable for the fruits , which were extent upon the land , or growand after that parties right● and no payment before the hand , can liberat the possessor , from the pursuite of a singular successor ; therefore it hath been frequently found , that payment before the hand is not relevant against an appryzer , yea even against an arrester , so that the king and his donatar ( since their right was established and known ) cannot be excluded , by payment before the hand , to a partie who had no right to the land , or to the fruits , that year , otherwayes both the king , and creditors might be defrauded , by fore-maills , or by tacks appointing the fore-mail to be payed , the first term , ( whatsoever length the tack be , ) secondly , any such alleadgances were only probable scripto vel juramenio . the defender answered , that the case here is not like the fore-maills instanced , because every year is payed within it self , and so the first year , the half at the beginning thereof , and the half at the middle thereof , and subsequent years conform , which must be sufficient to the tennent otherways tennents paying at whitsonday and martinmess , should not be liberat , because the whole year is not run out , or a tennent paying his ferms at candlesmass should not be secure , against singular possessors for the profit of grasse thereof , till whitsonday . the lords found the defense relevant , and the custome of the barony to be proven by witnesses , and likewise the payment of the dutie in so far as in victual ; and also for the money not exceeding an hundred pounds termlie . iames stewart , contra feuars of aberbadenoch . ianuary . . james stewart , as being heritably infeft in the milne of aberbadenoch , pursues the feuars of the barony , for abstract multures of their corns , growing within the barony ; or which tholed fire and water within the same . the defenders alleadged absolvitor ; because they are infeft in their lands , feu of the king , long before the pursuers infeftment ; which infeftment bears , cum molendiuis & multuris , in the tenendas . the pursuer replyed , that albeit that clause were sufficient liberation amongst subjects , yet this is a milne of the kings propertie , whereunto thirlage is sufficently constitute , by long possession , of coming to the milne , and paying in towns multures , and services ; ( as is craig's opinion , ) and hath been so found by the lords , february . one thousand six hundred thirty five , dog contra mushet . the defender answered , that albeit thirlage to the kings milnes may be constitute without writ ; yet cannot take away an expresse exemption granted by the king . the lords repelled the defense , in respect of the reply ; because they though● that this clause being but in the tenendas , past of course , and when sig●a●●●● are past the kings hand , or exchequar's , they bear only ten●ndas , &c. without expressing the particular clause , which is afterwards extended at the seals . the defenders alleadged further absolvitor , from the multure of the teind , because that was not thirled ; nor had the king any right thereto , when he granted the infeftment of the milne . the pursuer replyed , the defense ought to be repelled , in respect of the long possession in mol●ndo regio , because the defenders , and their tennents past fourty years , payed multures of all their corns , promiscuously , without exception of teind ; likeas there are several decreets produced , for abstract multures of all the corns without exception . the defender answered , that the reply non relevat ; for albeit long possession may make a thirlage of the kings own baronie , yet that cannot be extended to other mens rights , of their lands and teinds , which cannot be thirled without their own consent , or decreets against themselves called , nor do the decreets bear teind per expressum . the lords found the defeuse relevant , notwithstanding of the reply , except such teinds that thole fire and water within the barony ; and likewise s●stai●●ed the defense for the corns , e●ten by the defenders upon the ground , in the labouring , &c. earl of murray contra laird of grant. january . . the earl of murray pursues the laird of grant , to re-dispone him certain lands , which the earls father had disponed to the defender , and had taken his back-bond , that if the earls friends should find it prejudicial to the earl , then upon payment of . merks , precisely at whitsonday , he should re-dispone , ita est : the earls friends by a testificat produced , found the bargain to his loss ; therefore he offered the sum to the defender , in his own house , which he refused ; and now offers to re-produce it , cum omni causa . the defender alleadged absolvitor . first , because the back-bond is pactum de retro vendendo : and so a reversion , which is strictissimi juris , and not to be extended beyond the express terms thereof ; which are , that if iames earl of murray , should re-pay the sum at whitsonday , . precisely , the defender should re-dispone : but there is no mention of the earls● heirs , and so cannot extend to this earl , though he were heir , as he was not served heir the time of the offer . the pursuer answered , that when reversions are meaned to be personal , and not to be extended to heirs , they do bear , that if the reverser in his own time , or at any time during his life , &c. or some such expression ; but there is nothing such here ; and the pursuer was retoured heir to his father , who died shortly before the term of redemption ; and having used all diligence , he cannot be excluded , by such an accident , which he could not help . the lords repelled both the defenses , albeit there was only an offer , without consignation , seeing the back-bond did not bear , premonition , or consignation , but only payment , which the pursuer now offered . baird contra baird . eodem die . baird in saint andrews , having taken the gift of his brothers escheat , upon his adultery , pursues declarator thereupon . the defender alleadged no processes , till the crime were cognosced in the criminal court , or at least , he were declared fugitive and denunced , for then by the horning , his escheat would fall , but there is no law , nor statute , making the penalty of adultery , to be the adulterers escheat ; for queen maries statute , anent adultery , is only making nottour adultery capital ; but nothing as to other adulteries . the pursuer answered , that custome had made the penalty of adultery , to be the single escheat ; and for probation of the adultery , in this case , the defender had publickly confessed it , and had stood in sack-cloth for it a year , and had taken remission from the king. the defender answered , that confession in the kirk , was necessary to purge scandel , when such probation was adduced , as church-men allowed to infer confession , which is but extra judicialis confessio , and cannot prove , ad ●viles aut criminales effectus , neither can the taking of the kings remission , instruct these crimes ; seeing remissions are frequently taken to prevent accusations or trouble . the lords found the libel not relevant , and that no declarator could passe unless the defender had compeared judicially in a criminal court , and there confessed , or had been condemned by probation ; but that the confession in the church , or taking remission , was no sufficient probation . andrew barclay contra laird of craigivar . ianuary . . andrew barclay pursues the lairds of craigivar , as representing his father upon all the passive titles , to pay a bond due by his father , and insists against him , as behaving himself as heir , by intromission with the mails and duties of the lands of craigivar and f●ntrie . the defender alleadged absolvitor , because if any intromission he had ( not granting the same ) it was by vertue of a singular title , viz. an appryzing led against himself , upon a bond due by his father . the pursuer answered , non relevat , unless the legal had been expired ; for if the appearand heir in●romet within the legall , during which , the right of reversion is unextinct , immiscuit se haereditati : and it is gestio pro haerede . the lords found the defense relevant , albeit the appryzing was not expired , unless the pursuer alleadge , that the defenders intromission was more then satisfied the whole appryzing . laird of rentoun contra mr. mark ker. eodem die . the laird of rentoun having obtained decreet against mr. mark ker , for the teinds of ferniside , he suspends on this reason , that he ought to have retention of the annuity of the teind , which he had payed , and whereto he had right . the charger answered , that there was no annuity due out of their teinds , because he was infeft , cum decimis inclusis , which are not lyable for annuity . the suspender answered , that there was no exception in the act of parliament , . of teinds included . the lords recommended the matter to be settled , this being a leading case , in relation to the annuity of teinds included ; but they thought that annuity was not due of tei●ds included ; because such lands never having had the teinds drawn , there is nothing to constitute teind due for them , either by law , paction , or possession ; and so where no teind is , there can be no annuity . and also , because the ground granting annuity to the king , was because the king having an interest in the teinds , after the reformation and the titulars pretending also right , did surrender the same in the kings favours , and submitted to him , who confirmed the titulars questionable rights , and gave the heretors the benefite of drawing their own teinds , upon a valuation : and therefore the annuity was appointed to be payed out of the teinds to the king , but the surrender did not bear , teinds included . lord carnagie . contra ianuary . . lady anna hamiltoun , eldest daughter to the deceast william d●ke of hamiltoun , having obtained charter of the lands of innerw ●ik from the king , as becoming in his hand by recognition , in so far as the lands being holden ward ; the late earl of dirletoun disponed the same to iames cicil , second son to his second daughter , whereupon the said lady anna , and lord carnagie her husband , for his interest , pursues declarator of recognition , against the said iames ci●il , and against iames maxwels heirs of line , and heir-male to hear and see them secluded for ever , and that the lands were fallen in to the kings hands , and belonged to the pursuer , as his donatar by recognition , through the ward-vassals alienation thereof , without the consent of the king as superiour . the defender alleadged no processes ; because all parties having interest , are not called , viz. sir robert fle●cher , who stands publickly infeft in the lands libelled . the lords repelled the alleadgence , as super juretertii , in respect it was not proponed by sir robert , a●d that his right could not be prejudged by any sentence , whereto he was not called . secondly , the defenders alleadged no process , because the heirs of line are not lawfully called , in so far as three of them are resident in the abbey , and are minors , and their tutors and curators are only called at the mercat cross of edinburgh ; whereas they reside within the regality of brughtoun , and their curators should have been cited at the cross of the canongate , as head burgh of that regality . the pursu●rs answered , that the defenders reside in the kings palace , which is exempt from all regalities , and must be a part of the royalty , being the kings own house , by his royal regative . the lords repelled the defense , in respect of the reply , and found the kings house to be royalty , and so in the shire , and not in the regality . iohn nicolson contra feuars of tillicutry . ianuary . . john nicolson , as baron of the barony of tillicutry , and miln thereof , pursues the feuars of tillicutry , for a certain quantity of serjant corns , and for their abstracted multures , for which he had obtained decreet in his barony-court , which was suspended . the defenders alleadged , that his decreet is null , as being in vacant time . secondly , as being by the baron , who is not competent to decern in multures , or thirlage against his vassals . thirdly , the decreet was without probation : the baron neither producing title , nor proving long possession : and as to the serjant corn , nothing could constitute that servitude but writ . the charger answered , that barons needs no dispensation , in vacance , and that baron courts use to sit in all times , even of vacance , by their constant priviledge : and that the baron is competent judge to multures , or any other duty whereof he is in possession . and as to the serjant corn , in satisfaction of his decreet , he hath produced his infeftment , as baron of the barony ; which gives him right of jurisdiction , and so to have serjants , whose fees may be constitute , and liquidat by long possession . the lords found the reply relevant , the charger having . years possession as to the multures , and the pursuer declared he insisted not for the kings feu-duties in kind , but for the teind , seed , and horse corn. the defenders alleadged absolvitor , for as much of the corns as would pay the feu-duties , ministers stipends , and all publick burdens , because they behoved to sell corns for satisfying of these , and in so far the corns were not their own , and so they could pay for no more corns then their own , neither could they be lyable for dry multure , unless it were constitute by writ ; especially seeing the charger libels not upon the defenders infeftment , or bonds of thirlage , but upon his own infeftment , only generally , as infeft in the miln of the barony . the lords repelled these alleadgences , and sustained the decreet , for all the corns except seed , horse-corn and teind , which tholled not fire and water within the thirle . nicol harper contra hoom of plandergaist . eodem die . nicol harper pursues collonel iohn hoom of plandergaist , for payment of a debt of umquhil hoom of plandergaist his brother , and condescends , that the defender hath behaved himself as heir , at least successor lucrative to his brother , in so far as his brother disponed the lands of plandergaist to william hoom of linthil , to the behove of the defender , then his appearand heir , whereupon the defender is now in possession . the defender al●eadged , non relevat , to infer this passive title , unless the disposition had been to the defender himself , or that he had thereupon been infeft , but a third party being only in the real right , and the defunct denuded before his death , albeit there was a personal obliegment of trust in favours of the appearand heir , if that cannot make him lucrative successour , but the pursuer may reduce the same , if it was without cause onerous . the lords found the defence relevant , to liberat the defender from this passive title , but would not put the pursuer to reduction , but admitted it by reply , ad hunc effectum , that the defender should be countable according to his intromission ; and that the pursuer as a lawful creditor , should be preferred upon his legal diligence , to the said disposition . but the question arising , whether the disposition , if in trust , was lucrative or not ? and what to be lucrative imported , whether without any price , or within the half or third of the just price ? the lords before answer , ordained the disposition to be produced , and such admin●●les , for instructing of the ●nerous cause , as the defender would make use of , reserving to themselves , what the samine should work . robert dickie contra theoder montgomery . eodem die . robert dickie , as assigney constitute by robert montgomery , to a contract betwixt theoder montgomerie and the said robert , charges theoder to pay . merks : he suspends on this reason , that the debt was discharged before the assignation , or intimation , conform to the discharge produced . the charger answered , that the discharge is null , as wanting witnesses . the suspender replyed , he offered him to prove holograph . the charger answered , non relevat , against him , a singular successor , especially the question being of the date : for if writs proven holograph , could instruct their own date , no assigney , or any other person using legal diligence by arrestment , appryzing , or otherwise could be secure : but that their cedents , and authors might evacuat the right by discharges , or renunciatio● holograph : and therefore seeing by express act of parliamen● , writs wanting witnesses are declared null : the exception introduced by custom of holographon , ought not to be extended , especially in relation to the debitor against singular successors . the suspender alleadged , the inconvenience was al● great on the other hand , it being ordinar for masters to give their tennents holograph discharges , and whatever favour necessar assignations by legal diligence might have , yet this is a voluntar assignation● the lords repelled the reason of suspension and reply , in respect of the answer and dupl● , and found the holograph discharge not to prove its own date , against the assigney unless the suspender could instruct it by other adminicles . george grant contra grant of kirdels . ianuary . . george grant pursues reduction of a renunciation of a wodset , made by grant of morinsh to grant of kirdels , ex capite inhibitionis , because he had inhibit morinsh the wodsetter , before he granted the renunciation . the defender alleadged , that he had a reduction of the bond , whereupon the pursuers inhibition was raised , depending , and declared he held the production satisfied , and repeated his reason by way of defense : that the bond was null , wanting a date , either of day , month , or year . the pursuer answered , that the bond bare , the term of payment to be whitsunday . and so instructs that the bond was betwixt whitsonday . and whitsonday . the defender answered non relevat , unless the month and day were also exprest , because otherwise the means of improbation cease by proving alibi . the lords repelled this defense , seing the year was exprest in re antiqua , but if improbation had been insisted on less reasons in the indirect manner would be sustained . the defender alleadged further absolvitor , because this bond , albeit it be assigned to george grant the pursuer ; yet it is offered to be proven , that the time of the assignation , the said george was pupil , within twelve years of age , in his fathers family : and so in law it is presumed , that it was acquired by his fathers means , and is all one , as if his father had taken assignation in his own name , and granted translation to his son : and it is clear by the testament produced , that grant of ballandallochs father was tutor to the wodsetter ; and during his tutory , any right taken by him , of sums due by the pupil , are presumed to be satisfied by the pupils means , and to accresce to the pupil , against whom , he nor his assigney can have no action , for any particular apart , but the whole must come in in the tutors accounts : and offers to prove if need beis , that the tutor , int●s hab●●t , being debitor in greater sums to the pupil then this . the pursuer answered ; first , the alleadgence is no way relevant , upon such presumptions , to take away the right standing in the defenders person . secondly , the defense is not liquid , and so can make no compensation , albeit his son were expresly assigney , as he is not . the lords found the defense relevant , unless the pursuer would condescend and instruct that the assignation was granted to him otherwise then by his fathers means . thomas fairholme contra margaret bisset . ianuary . . thomas fairholm as executor creditor , confirmed to andrew reid , pursues margaret bisset his relict , to deliver the ware in his chop , contained in the pursuers confirmation . the defender alleadged absolvitor , because she has confirmed the ware in the shop , specially and particularly for the use of the hail creditors ; and the pursuers confirmation is only general , not condescending upon the particular ware : and though the defenders confirmation be posterior , yet it is special , and hath attained possession before any pursuit , at the pursuers instance , upon his prior confirmation ; and confirmations do not establish property , until possession or execution ; but is only as a legal disposition incompleat , as gifts of escheat , where the first sentence , or possession , gives the first real right of property . the pursuer answered , that his confirmation is special enough , bearing the ware of the shop to be silks , stuffs , and others worth . merks ; and the confirmation alone constitutes the property unto the executor , because he is haeres mobili●m ; and the property being before in hereditatae jacent● , ipso facto , by the confirmation it is established in the executor . secondly , by the constant practice of this kingdom , there could no second principal confirmation , but only ad o●issa , and she could never confirm that which the first executor had confirmed . the defender answered , that by act of sederunt , of the judges in the usurpers time , all executors confirming within six moneths after the defuncts death , were ordained to come in together ; and therefore it was then the custom , that all confirmed principally the same things , seeing they could get no more then what was in their confirmation : and the defenders confirmation being at that time , must be sustained . the pursuer answered , that the defender cannot have the benefit of that act of sederunt , because she confirmed not within six moneths after the defuncts death . the defender answered , she confirmed within six moneths , or six or seven dayes more , which is an inconsiderable difference . the lords preferred the first executor to the goods in the shop . mr. iohn veach contra byel of bassinden . eodem die . mr. iohn veach , as assigney by iohn edgar of wedderlie , to a reversion , pursues declarator against byel of bassinden , the wodsetter ; who alleadged absolvitor , because the premonition is null , being by a procurator , and not bearing , the procuratory produced , neither the pursuers assignation to the reversion . the pursuer answered non relevat , unless it were alleadged , that they had been demanded at that time , and had not been shown . secondly , if need beis he offers him to prove , by the defenders oath , that the procuratory was then shown . the defender answered , the procuratory is not yet produced , and the pursuer was oblieged to have shown it then , albeit not called for . the lords sustained the order , the pursuer reproducing the procuratory , and proving by the defenders oath that the procuratory was then shown . alexander colquhoun contra his creditors . eodem die . alexander colquhoun in glasgow , pursues liberation , supercessione bonorum . the defenders alleadged absolvitor , because they offer them to prove , that the pursuer did wittingly deceive them , in borrowing sums , and taking of ware from them , after he knew that he was insolvendo , and bankrupt . the pursuer answered , nonrelevat , against liberty , which is a favourable cause , and can be stopped by nothing , but fraudulent deeds , since the incarceration , or offering of aliment . the defenders craved , that if the lords inclined to grant liberty , that the pursuer might be decerned to sit upon the dyver-stone ; and wear the habit . the pursuer answered , that was long since out of custome . the lords before answer , ordained the pursuers oath to be taken , upon the defense , whether he did contract these debts after he knew himself insolvent and bankrupt , and they resolved if it was so found , they would not grant him liberty without sitting upon the dyver-stone , and wearing the habite . laird of polwart contra hooms . ianuary . . the laird of polwart pursues a declarator of redemption against hooms , who alleadge absolvitor , because the reversion was not fulfilled , which bore the sum of a . merks , and a tack for . years after the redemption . the pursuer answered , the alleadgence ought to be repelled , because the lands wodset is worth . merks by year ; and the tack-duty is only four pounds , and so it is an usurary paction , whereby the wodsetter will have much more then his principal sum , and his annualrent , and so it is null , by the common law , and by special statute , par. . cap. . bearing , that when wodsetters take tacks for long time , after the bond be out quite ; such tacks shall not be keeped after redemption , unless they be for the very mail , or near thereby . the defender answered ; first , that statute is but an exception from the immediat preceeding act of parliament , in favours of tennents , that their tacks shall not be broken by singular successors , buying the land : and therefore is only understood in that case , when the wodset lands are bought from him that hath right to the reversion , by a singular successor : but this pursuer is heir to the granter of the wodset . ly , that act is long since in desuetude . ly . whatever the act might operate amongst strangers , yet it is clear by the contract of wodset produced , that the wodset was granted by the laird of polwart to his own brother ; and so must be repute to be his portion natural , and the eldest brother might well grant a nineteen years tack to his youngest brother , albeit there had been no wodset . likeas , in the wodset there is reserved , the liferent of a third partie ; who lived thirty six years thereafter , during which time the wodset got no rent . the lords found the defense and reply relevant , and ordained no declarator to be extracted , till the tack were produced , and given up to the wodsetter . laird balvaird , contra creditors of annandail . eodem die . the laird balvaird , as heir of tailzie to david viscount of stormont , in the lands of skun , pursues the heirs of line , of the said david and mungo viscount of stormont , and several their creditors , lybelling , that by an infeftment of tailzie of the saids lands , made by the said david viscount of stormont . it is expresly declared and provided , that none of the heirs of tailzie , shall do any deed prejudicial , to the tailzie ; or contract debt , whereby the tailzie may be altered , otherwayes the debt so contracted shall be null , and the contracter shall ipso facto , lose his right of propertie , which shall belong to the nearest person of the tailzie , and subsumes that the late earl of annandail last heir of tailzie contracted debts ; which might effect the saids tailzed lands , and concludes ; that it ought to be declared , that thereby he incurred the clauses itritant in the tailzie , and lost his right of propertie ; and that all the bonds contracted by him , and appryzed upon , are null , quoad these lands , and that the pursuer as nearest heir of tailzie , may enter heir in these lands , to david and mungo viscounts of stormont , and enjoy the same free of any debt contracted since the tailzie . the creditors alleadged no process to annul their bonds , and apprysing , hoc ordine ; by way of declarator , but the pursuer must via ordinaria reduce ; in which case , the creditors will have terms granted them to produce , the writs called for to be reduced : which priviledge , being in their favour ought not to be taken from them in this extraordinar unformal way . the lords repelled the defense , and sustained the summons ; in respect there was no bond craved to be produced , or simplie reduced ; but only that any bonds granted to the defenders since the tailzie are null , and all following thereupon , as to the lands in tailzie , which is no more then that they affect not the lands in the tailzie , and there is no necessity of reduction , but where the writs must be produced , before they can be reduced ; and even in that case ; if the pursuer satisfie the production himself , the defender hath no delay , and here the pursuer produces all that is necessar , and craves the rest to be declared null in consequence . the lords sustained the summons . glendinning , contra earl of nithisdale , ianuary . . george glendinning of partoun , pursues the earl of nithisdale , for fulfilling of a contract of excambion betwixt the earls father , and the pursuers grand-father ; and insist against the earl , as lawfully charged to enter heir to his father . the earl alleadged absolvitor , because he offers him to renunce to be heir : the pursuer replyed , the defense ought to be repelled , quia res non est intigra ; because the earl has done a deed prejudicial to his renunciation , viz. he granted a bond for two thousand pounds sterling to the earl of dirltoun , only simulatlie to his own behove , whereupon his fathers whole estate was adjudged , and that adjudication assigned to the earl himself , and so he having intrometted be that simulat title , with the maills and duties of his fathers lands , he hath behaved himself as heir , and cannot renunce : the defender duplyed that the reply ought to be repelled ; because he offered not only to renunce , but also to purge that deed of his , and the adjudication of two thousand pounds sterling , and to declare that it should not prejudge the pursuer , nor his fathers lawful creditors , and that he should be comptable for the price of any lands he had sold , or any rents he had uplifted . the pursuer triplyed , that the duply ought to be repelled ; because medio tempore , the earl had bought in expired apprisings , with the profits of the lands , the defender quadruplyed , that he was content to restrict any such rights , to the sums he truly payed for them , and not to exclude the pursuer by them . the pursuer answered , that he having once behaved himself as heir , no offer , nor renunciation could be received . the defender answered , that his intromission could not be gestio pro herede , because it was singulari titulo , and not as heir , and in gestione there must appear animus adeundi aut immiscendi . the contrair whereof is here , for the granting of the bond , and the taking right to the adjudication thereupon , was of purpose , that his intromission might not be as heir , or as immixtion , which can never be without an illegal , and unwarrantable deed ; but all that was here done was legal , there being no law , nor custom to hinder the earl , to grant a bond , albeit gratis , and after dirltoun had adjudged the lands , there was no law to hinder the appearand heir to take assignation thereto , and bruik thereby , more then a stranger ; and albeit there were simulation , or fraud , that might be a ground to reduce upon , but not to infer a general passive title , to make the defender lyable to all his fathers debts , from which passive title , qui res colleratus titulus excus●● , and albeit this passive title be not any where else in the world , but in scotland , yet it was never applyed to this case now in question , but by the contrare , since the act of parliament one thousand six hundred twenty one , by which heirs may be charged to enter heirs to their predecessors , not only for the defuncts debts , but their own ; any bond granted by the appearand heir although gratis , would be valid , to apprize , or adjudge the defuncts estate , and therefore , there being many cases , in which the appearand heir could not probably know whether the heretage would be hurtful , or profitable . this hath been ofttimes advised , as the remeid , be sir thomas hope , and many since ; that the heir appearand might grant a bond , and thereupon the lands being adjudged , might take right thereto . the pursuer answered , the defender had intrometted with the rents of his predicessors land , which albeit not animo adeundi , yet animo immiscendi & lucrandi , which cannot be maintained by a simulat null bond , by himself to his own behove , and adjudication thereupon ; and if this were sustained , no person would ever after enter heir to his predecessor , but take this indirect way , to the defraud , and vexation of creditors ; and entring so to possesse , would buy in other rights , and maintain his possession ; as this defender hath done , and would not be oblieged , or willing to restrict these rights , as he doth . the lords , after long consideration and debate in the matter , found the earls offers relevant , but resolved to make and publish an act of sederunt , against any such courses in time coming , and declared , that it should be gestio pro haerede , to intromet upon such simulat titles . adam hepburn contra hellen hepburn . eodem die . adam hepburn , brother to the deceast thomas hepburn of humbie pursues reduction , and improbation against hellen hepburn his brother daughter , of a disposition made by him to his daughter on death bed. the lords granted a third term for production , in respect of the improbation , albeit there was but a writ or two called for nominatim . laird of rentoun . contra mr. mark ker. ianuary . . the laird of rentoun having obtained decreet before the commissaries of berwick , against mr. mark ker , compearing for three chalders of victual of teind , mr. mark suspends , upon iniquity ; because he having proponed a relevant defense , that he ought to have allowance of the annuitie which he had payed , which affected the teinds . it was repelled . the charger answered , non relevat , by way of suspension , without there were a reduction . the suspender answered , the reason was instantly verified , by inspection of the decreet . the lords found the reason not competent by suspension without reduction . mr. iames ramsay contra earl of wintoun . eodem die . m r. iames ramsay , as having right by translation from george seaton , assigny constitute by my lady semple , to a bond due by the umquhile earl of wintoum , pursues this earl for payment , who alleadged no process , because the time of the assignation taken by sir george seatoun , he was one of the defenders tutors , and so it is presumed , that the assignation was purchased by the pupils means , and as the tutor could have no process thereupon against the pupil , till he had made his tutor accompts , so neither can his assigney ; seeing in person alibus , all exceptions competent against the cedent are competent against the assigney . the lords found the defense relevant , unlesse the pursuer would find caution to pay what should be found due by sir george , by the tutors accompts , as they had done before , betwixt grant and grant , january . . laird of lamingtoun contra sir iohn chiesly . ianuary . . the laird of lamingtoun pursues sir iohn chiesly , upon the late act of parliament . betwixt debitor and creditor , to restrict a proper wodset , granted by lamingtoun to him , of the lands of symontoun , to his annualrent . the defender excepted upon a back-bond granted by lamingtoun , whereby he expresly renunced the benefit of the usurpers act , betwixt debitor and creditor , and all such acts , made or to be made ; and oblidged himself , upon honour and conscience , not to prejudge sir john of his bargain , to which no subsequent law could derogat , unless it had been specially , notwithstanding any such paction . secondly , the foresaid act has an express exception : that where such acts , made and to be made are renounced ; the benefit of that act shall not be competent to such . the pursuer answerd to the first , that pactions , or renunciation of parties cannot operat , against a posterior law. secondly . the persu●t here , is , for restricting of a wodset to the true annualrent ; for all that was done in the usurpers act , was to take land in satisfaction , and to delay payment , but this clause of the act is nothing such , and so is casus incogitatus , which could not be held to be renunced , unless it had been exprest , as to the exception in the act it is not an exception general to the whole act , but to the antecedent part of the act ; and this clause , anent restricting of wodsets , is posterior to the exception , and not derogat thereby . the lords repelled the defense , in respect of the reply , and found the exception not to derogat to the posterior clause concerning wodsets . lord burly contra iohn sime . ianuary . . the lord burly pursues iohn sime , for intruding himself in a coal-heugh , wherein the pursuers author was infeft severally , and not in the land , but only in the coal , with power to set down pits through all the bounds of the land. the defender alleadged absolvitor , because he stood infeft in the lands lybelled , with parts and pertinents , and be vertue thereof , was seven years in possession , which must defend him in possession , until his right be reduced . the pursuer answered , that the defender could have no benefite of a possessory judgement , not being expresly infeft with the benefite of the coal , in prejudice of the pursuer , who was expresly infeft , and seased in the coal , and in possession of the coals past memory . the defender answered , there was no necessity of an express infeftment of the coal , which is carried as part and pertinent , as craig observes in dieg . de investituturis impropriis , , to have been decided betwixt the sheriff of air and chalmers of garthgirth , and so being infeft , and in possession seven years , he has the benefite of a possessory judgement . the lords found the defense relevant , but repelled the same , in respect of interruption within seven years , which was proponed . halbert irwing contra mckartney . eodem die . halbert irwing pursues mckartney for spuilzie of ten oxen. the defender alleadged absolvitor , because he intrometted with the oxen by warrant from mr. robert ferguson , to whom the pursuer had given a disposition of all his moveable goods , for relief of a cautionry , for which mr. robert first , and now this defender is distrest . secondly , he offers him to prove voluntar delivery of the oxen , by the pursuer to him for the cause foresaid . but because the pursuer hath summoned several other persons as complices , which are necessary witnesses , of purpose , that he might exclude them from being witnesses , he desires they may be admitted witnesses , or otherwise discust . first , that if they be assoilzied , they may be witnesses . the pursuer answered to the first , non relevat , a disposition unless there had been delivery ; and albeit there had been an instrument of delivery , yet it being dispositio omnium bonorum , two years before the medling , could be no warrant for summar medling , without sentence of a judge , and gave only jus ad rem . but specially the medling with the plough goods in time of labourage , when the pursuer put other goods before the defender . the lords found the first defense relevant , founded upon the general disposition and instrument of possession ; and that the disposition alone , though without any possession , had been sufficient against the disponer ad vitandum spolium , unless the defender had intrometted by violence , being resisted by force . but they proceeded not to the second defense , which doubtless was relevant , and the desire reasonable of discussing the remnant defenders ; first , that they might be witnesses if assoilzied : yea , it seems they could not be hindred to be witnesses , used for the defender , though they might be suspect witnesses against him , as being interest , to put the spuilzie upon him for their own relief . sir iames cunninghame contra thomas dalmahoy . february . . sir iames cunninghame pursues thomas dalmahoy , and the tennents of pollomount , to make payment to him of the mails and duties of the lands of pollomount , resting at the death of the late dutches of hamiltoun , because she had granted bond of . pound sterling to the pursuer , to be payed after her death ; and for security thereof , had assigned the mails and duties of her liferent lands of pollomount , which should happen to be due at the time of her death . it was alleadged for thomas dalmahoy her second husband , absolvitor , because these mails and duties belonged to him jure mariti , neither can he be lyable for this debt jure mariti , because it was not established against him during the ladies life ; neither could be , because the term of payment was after her death . the pursuer answered , that he did not insist against thomas dalmahoy as husband , but as intrometter with the rents of pollomount , due at the dutches death , wherewith he hath medled since : which could not belong to him , jure mariti , being assigned before the marriage ; and if they could belong to him jure mariti , yet it must be with the burding of this debt . the lords repelled the defense , in respect of the reply , for they thought a husband , albeit he was not lyable simply for his wifes debt , post solutum matrimonij ; yet that he should have no more of the wifes means , jure mariti , but what was free of debt , and so behoved to pay her debt , so far as he enjoyed of her means , belshes contra belshes . eodem die . in an account and reckoning betwixt belshes and belshes , concerning executry ; the lords found that the prices , given up by the defunct in his testament , of his own goods , should stand , and the executor be accountable accordingly● seing there was no enorm prejudice alleadged , as if the defunct had prized the goods , within a half or third of the true avail , to the advantage of the executor , and prejudice of the wife , bairns , or creditors . the lords did also allow aliment to the wife , out of her husbands moveables to the next term , albeit she liferented an annualrent , payable at the next term. lord melvil contra laird of fairin . february . . the lord melvil pursues the laird of fairin , for warrandice of a disposition of certain lands aud teinds , sold to my lord by him , with absolute warrandice , and condescends that the teinds were affected with . bolls by a locality to the minister in anno . the defender alleadged absolvitor , because this distress was known , or might have been known to the pursuer the time of the bargain , at least to his tutors who made the bargain . secondly , there is no legal distress but voluntar payment made all the years bygone . the lords repelled the defense , and found , that seeing the distress by the stipend was unquestionable ; payment made thereof without processes , prejudged not , and that the pursuers knowledge could work nothing , being then a pupil . laird of elphingstoun contra sir mungo murray . eodem die . the laird of elphingstoun having charged sir mungo murray , for the price of some lands , bought from him , he suspends , and alleadges , that by the disposition the charger is oblieged to relieve him , of all inhibitions ; and now produces several inhibitions . the charger answered non relevat , unless there were a distress , seeing the disposition bears not to purge but only to relieve , or to warrant against inhibitions . the lords considering that the chaeger vergebat ad inopiam , found the reasons relevoan , till cauton were found to warrant the suspender from these inhibitions . they found also , that where the charger was oblieged to pay to the suspender , the composition for his entry to the lands . that the suspender should have no composition if he got it gratis ; albeit he alleadged he got it for other good services . skeen contra lumsdean . eodem die . andrew skeen having charged alexander lumsdean for payment of a sum , for which he was cautioner for his brother mr. thomas lumsdean ; he suspends upon this reason , that the cause of the bond was two bills of exchange● which was protested . the suspender answered , he offered him to prove they were payed , after the protest , by him who drew the bills , or by mr. thomas lumsdean , in whose favour the bills were drawn . the suspender replyed , that the alleadgence ought to be repelled , because he was assigned to the protested bills , for relief of this cautionry , and intimat his assignation to skeen , who delivered the bills , and got the bond charged on . the charger offered him to prove payment● before that assignation , or intimation , and ad modum probationis , produced an instrument under the seal of camphire , and a declaration of the conservator there , bearing , that upon inspection of mr. thomas lumsdeans compt books ; they found that he had acknowledged two or three sums payed , in part of these bills , and exprest the dates thereof , prior to the assignation . the suspender alleadged the compt books could not prove , unless they were produced , cognosced and proven to be lumsdeans compt books . secondly , they could not prove contra tertium , thirdly , the question being de data , and they holograph , they could not prove their date . fourthly , these testificats can prove nothing , unless they had been taken upon processes , or by commission . the lords found the testificats could not prove , but that the compt book being cognosced , might prove against the assigney , being brother to lumsdean , and the books out of his hand , since he was broken , for amongst merchants compt books or writs without witnesses , by their custom , are sufficient , and ordained lumsdean and his brother to depone , upon the having of the books , to produce them if they had them , and if not , granted commission to the magistrats of camphire , and conservator , to cognosce the books , and to report what they find of this matter in them . marjory gray contra dalgardno . february . . majory gray pursues dalgardno , as vitious intromettor with the goods of a defunct , to pay his debt , who alleadged absolvitor , because the defunct died rebel , and at the horn , and so nihil fuit in bonis defuncti , seing by the rebellion , all his moveables belonged to the fisk , ipso jure , without necessity of tradition , for the king jure coronae , hath the right of lands without infeftment , and the right of moveables forefaulted , or fallen in escheat , without tradition or possession . the pursuer answered , non relevat , because the defender intrometting without any warrand from the fisk , is quassi prodo , and moveables are not ipso facto , in the property of the fisk , by the rebellion : but if they be disponed by the rebel for an onerous cause ; the disposition before rebellion will be valid , or if they be arrested for the defuncts debts , and recovered by sentence , making forth-coming ; or if a creditor confirm himself executor creditor to the defunct rebel , he will be preferred to the fisk ; by all which it appears , that the rebellion transmits not the property . the defender answered , that these instances do only show that the king prefereth creditors , and takes but the benefit of what the rebel had deductis debitis , or what was contracted with him bona fide , but doth not say , that the property of the goods were not in the fisk , but in the rebel . the lords repelled the defense . the defender further alleadged , that not only was the defunct rebel , but that he had a gift of his escheat . the pursuer answered non relevat , unless it had been before the vitious intromission , or at least ante motam litem . the lords repelled the defense , unless the defender would alleadge that the gift was ante motam litem ; for they thought that the taking of the gift was like the confirmation of an executor , which purged vitious intromission , being ante motam litem . iohn bonnar contra robert foulis . eodem die . john bonnar pursues robert foulis , to pay the debt of a person incarcerat by act of warding , whom the bailzie set at liberty without warrant . the defender alleadged no processes , because the person incarcerat was not called , who might have proponed exceptions against the debt , that it was payed , &c. secondly , that thereafter the pursuer had taken himself to the incarcerat person , and gotten part of payment from him . the lords repelled the defenses and decerned : but because there was a reduction depending of the decreet , whereupon the person was incarcerat , and that he was set at liberty in anno . when there was no iudicatory sitting , they superceeded extracting for the time , till the reduction was discust . countess of buckcleugh . contra earl of tarras . eodem die . the countess of buckcleugh pursuing reduction of a contract of marriage● betwixt her sister and the earl of tarras . the lords would not sustain incident for the earl of tarras , albeit he was minor , that contract being his own writ , and not his predecessors . lockerbie contra applegirth . eodem die . johnstoun of lockerbie , having obtained decreet against ierdine of applegirth , for a sum payed by the pursuers author , as cautioner for the defenders father . the lords found annualrent due by the principal to the cautioner , by an act of sederunt . and that from the year . until now in respect the cautioner had payed upon distress , by decreet of transferrence , and a charge of horning thereon . acheson contra mcclean . eodem die . dam iean acheson pursues the laird of mcclean , as representing their predecessors , who was cautioner in a suspension . the defender alleadged nothing produced to prove the suspension discussed , but letters of horning upon a protestation , which cannot instruct the protestation . the lords repelled the defense , in respect of the absence of the register , and the oldness of the horning . achinbeck contra mccleud . eodem die . in an improbation at the instance of the laird of achinbeck , against mccleud . the lords found that the improbation behoved to be continued , albeit the samine had an ordinar priviledge to pass upon six dayes , for the first summonds , past of course periculo penitentis . acheson contra earl of errol . eodem die . acheson pursues the earl of errol , as presenting his father , to pay a debt wherein his father was cautioner for the earl of mar ; and for instructing thereof , produced the extract of a bond , registrate by consent in the books of session . the defender alleadged no processe against him ; because the bond was not registrat by any procurator for his father , because he was dead before the registration , and so cannot prove against him , neither being a principal writ subscribed by his hand , nor being a decreet of registration , by consent of his procurator , nor upon citation . the pursuer alleadged that it was an authentick evident , and bare expresly sic subscribitur errol : and seing by law and custom , the pursuer was necessitat to leave the principal at the register , when the registrat the same , and that the registers are now lost without his fault . the lords refused to sustain the extract against the earl of errol , but yet would not put the party to an action of proving the tenor , but would receive admini●les to instruct that earl was cautioner ; and therefore ex officio , ordained the other subscribers of the bond , or any other person that could be adduced , for instructing the truth to be required ex officio . thomas crawford contra earl of murray . february . . thomas crawford as executor creditor , confirmed to umquhil robert ing●is ; as assigney by his relict , for satisfaction of her contract of marriage , pursues the earl of murray for payment of the sums confirmed , addebted by him to the said umquhil robert. the defender alleadged compensation ; because he had assignation to a debt due by the said umquhil robert , which as it would have been relevant against robert himself ; so must it be against his executor . the pursuer replyed : first , non relevat , unless the assignation had been intimat before the confirmation : but an executor creditor having done diligence by confirmation ; it is not in the power of any of the defuncts debitors , by taking assignation from any of his creditors , to prefer that creditor to any other creditor , which is no ways legittimus modus preferendi : but the creditors must be preferred , only according to their diligence . secondly , this pursuit being for implement of the relicts contract of marriage , and pursued to their behove , hath by our law and custome preference to all other personal creditors , though having done more diligence . the lords found either of these two replys relevant to elide the defense , albeit the assignation was before any pursuit , moved upon the pursuers confirmation . lord torphichan contra eodem die . the lord torphichan and certain of his feuars , pursue a reduction of a decreet of the sheriff , whereby he set down marches betwixt their lands and others , upon this ground , that he did not proceed by an inquest conform to the act of parliament , but by witnesses . secondly , that he as superiour was not called . thirdly , that the sheriff had unwarrantably sustained the setting down of marches foamerly by arbiters , to be proven by witnesses . the defenders answered , the first reason was not objected , and the defenders compearance it was competent and omitted : to the second , the superour could have no detriment . to the third , that the setting down of march-stones , being a palpable fact , might be proven by witnesses , whether done by the parties themselves , or by friends chosen in their presence , their being neither decreet-arbitral , nor submission in writ . the lords repelled the reasons in respect of the answer , and declared , that if the land fell in the superiours hands , by recognition , non-entry , or otherwise , the decreet should not prejudge him if he were not called . ramsay of torbanie contra mcclellane . february . . david ramsay of torbanie having raised suspension , and reduction of a decreet against him , at the i●stan●e of thomas mcclellane , in anno . insists upon this reason , that he being pursued as heir to his father , at the instance of thomas mcclellane , he proponed this relevant defense , absolvitor , because the bond pursued upon , was granted by his father after he was interdicted , without consent of the interdictors , and so could not affect the person interdicted heir , albeit he had succeeded in his estate . the defender answered , that the said alleadgence was justly repelled , in respect of this relevant reply , that the interdiction hath no effect as to moveables , and personal execution ; neither as to any other lands , then such as lay in the shires or jurisdictions where the interdiction was puplished and registrat , conform to the act of parliament , ita est : this interdiction was published and registrate only at linlithgow ; and therefore if the defender hath succeeded to any lands , not lying in linlithgow shire , or if he hath medled with heirship , moveable , or be vitious intromettor with his fathers moveables ; he is lyable for this sum , albeit after the interdiction , ita est , he succeeded to lands in the stewartry of kirkcudburgh , and moveables , &c. and therefore the defense was justly repelled . the lords found the decreet just , and therefore repelled the reasons of suspension and reduction . bells contra wilkie . february . . grissel and bells raise a reduction against iames wilkie , of a decreet obtained at his instance against them , in anno . whereby the said iames wilkie being executor , confirmed to his mother , who was one of the sisters , and executors of umquhil patrick bell their brother , in which confirmation the said iames gave up the third of the said patricks goods , and thereupon obtained decreet against these pursuers , as the two surviving executors , to pay to the said iames , his mothers third part of her brothers means . the reason of reduction was , that the decreet was unjust , and contrair to the law and custom of this kingdom , whereby there is no right of representation in moveables , as in heretage , neither doth the confirmation of the executors , establish in the executors , a compleat right , untill the testament be execute , either by obtaining payment , or decreet ; and if the executor die before execution , the right ceases , and is not transmitted to the executors executor , but remains in bonis defuncti of the first defunct , and therefore executors ad non executa must be confirmed , to the first defunct , which being a constant and unquestionable custome , one of the three executors deceasing before executing the testament , her right fully ceases ; and both the office of executrie , and benefit , accres●es to the surviving sisters ; as if the deceased sister had never been confirmed executrix . the defender in the reduction , answered , that this reason was most justly repelled , because , albeit it be true , that the naked office of executry , doth not compleat the right in the executors person , and doth not transmit , yet it is as true , that by the law of god , and of this land ( which is cleared by the express statute , parliament . anent executors ) children surviving their parents , had always a distinct right , from the office of executry , of their bairns part of gear , which belonged to them , without any confirmation , and could not be prejudged by the defunct , and was sufficiently established in their person jure legittime , if they survive their defunct parent , especially if they owned the same by any legal d●ligence ; therefore , after which , if a child die , the child of that bairn will come in with the survivers ; and yet there is no right of representation , because iure legittime ; it was established in the bairns person , by surviving , and owning the same ; as well as the goods , are e●●ablished in the person of a stranger executor , by executing the testament : and by the said act of parliament , that benefit is extended , not only as to the bairns part , but to the bairns ; in relation to deads part , whereinto they succeed , as nearest of kine , and therefore they have right to the moveables , not by vertue of the conformation , or office of executry , which before that act carried the whole benefit ; as is clear , by the act , but by a several right , jure agnationis , as nearest of kine ; and therefore , though the nearest of kine be not confirmed executor , but others be nominat , or datives confirmed , the executors are comptable to the nearest of kine , who may pursue them therefor● , and therefore , if the nearest of kine do any legal diligence , either by confirmation , or process , yea , though they did none , but only survive , the right of nearest of kine ipso facto , establishes the goods in their person , and so transmits ; and whereas it was alleadged , that the contrare was found by the lords , in anno one thousand six hundred thirty six , observed by durie : it is also marked by him , that it being so found by interlocutor , it was stopped to be heard again , and never discused ; neither can it be shown by custome , or decision , that the executors of children , or nearest of kine were excluded , from recovering the part of their parent , which survived , and owned the benefit of the succession . the lords assoilzie from the reduction , and adhered to the former decreet . kirktouns contra laird of hunthil . eodem die : isobel and kirktouns pursues the laird of hunthill , their tutor , for a tutor compt , and payment of all that belonged to their father , who alleadged absolvitor ; because nothing alleadged , nor produced , to instruct his acceptance of the office of tutory . the pursuers opponned their fathers testament confirmed , bearing the same to have been confirmed by the defender , and other three tutors , and that the tutors gave their oaths de fideli administratione , in the office of tutrie . the defender answered , non relevat , to instruct , that the tutors made faith , because this confirmation is but the assertion of a nottour , the commissary clerk , without a warrant in writ , subscribed by the tutors , and can prove in nothing , but what is ordinary the style of the court , in judicial process , but the acceptance , and making faith of tutors , is altogether extranious , and is neither necessar , nor ordinar to be done by the commissars . the lords sustained the reply , especially , in respect , that the commissarie clerk , was this defenders uncle , and there was no ground of suspition , that he would adject that point without warrant , otherways this were a dangerous preparative . secondly , the defender further alleadged absolvitor , from a sum contained in the said testament as due to him , because there was nothing to instruct it , but the defuncts assertion in his testament , giving up his debts . the pursuer answered , that the defender hath homologat , by confirming the testament , bearing the same , and not protesting against it , which is an acknowledgment thereof . the defender answered , that there being four tutors it could not be constant , that they were all present , at the act of confirmation , and saw and knew the inventar ; but as it is ordinar in such cases , they might have come at several times , and made faith. the pursuer answered , that some of the four tutors behoved to do it , and these were thereby bound to have done diligence for it , and consequently , all the tuttors being lyable in solidum ; this tutor is lyable therefore . the lords found the reply and triply relevant , that the testament so confirmed instructed the debt . robert lockheart contra william kennedy february . . robert lockheart , pursues a declarator of the redemption of some lands , against william kennedy of achtefardel , who alleadged absolivtor ; because , before the order was used . the reversion was discharged , and the discharge registrat . the pursuer replyed , ought to be repelled , because the granter of the discharge was interdicted , before the granting thereof , and the same not granted with the interdicters consent . the defender answered , non competit by way of reply , but only by way of action of reduction , as is ordinar , in the case of inhibition and interdiction . the lords sustained the reply , in respect that it was not proponed , by defense to delay the pursuite , but by reply , which did only delay the pursuer himself , and also , that they thought it hard , to cause the pursuer quite his possession , and then go to a reduction . antonia birnie contra liferenters of rossie : eodem die . antonia birnie , as heir appearant , and having right to the fee of the estate of rossie , and fordel , pursues her mother and grand-father , liferenters thereof , for a modification of aliment . the grand-father made no opposition● it was alleadged , for the mother , that the whole inheretance was not liferented . the pursuer answered , that what was not liferented , was affected with apprizings for the defuncts debts , led after his death . the defender answered , non relevat , unless the appryzings had been before the defuncts death , but being against the appearand heir her self , she ought to sell land , and pay the debt and live upon the remainder . the pursuer offered her to prove the appryzings and debts equivalent to the value of all the land● not liferented . which the lords found relevant . iames maxwell contra adam maxwell . eodem die . james maxwell , pursues adam maxwell , for declaring a disposition of lands , granted by the said iames his wife to the said adam , to have been in trust to her behove , and after her decease , to her husband , and for adminicle lybelled a bond granted by the said adam , some moneths after the disposition , whereby he oblidged himself to grant a back-bond to the lady , by the advice of lawyers , conform to the disposition made to him , and oblidged him to deliver the said back-bond to the lady , or to the ladyes husband after her death , whereupon it was alleadged , that the back-bond being to be made by the advice of both their lawyers , the disposition behoved to be in trust . the defender opponned the tickit , bearing the back-bond , to be conform to the disposition , in which there was an expresse reservation of the ladyes liferent ; so that the back-bond could import no more , then securing of that liferent . the pursuer answered , these words , conform to the disposition , were set upon the margin of the tickit , which was all written by the defenders hand , and might have been added , ex post facto , . the tickit behoved to import more then the liferent , because the liferent was fullie and clearly reserved , and oftimes repeated in the disposition , so that clause had been frustrat . thirdly , the oblidgment to deliver the back-bond to the ladies husband after her death , could not be understood , to be only in relation to her liferent , which and the husbands interest should cease by her death . the lords found the tickit sufficient to instruct trust , but because the terms of the trust were not clear . they before answer , in relation to the probation of the terms thereof , ordain the parties to compt and reckon upon all sums , due by the lady to the defender , in contemplation of the trust , that the same might be allowed and satisfied to the defender , before he be denuded . iames slumond contra wood of grange eodem die . james slumond , having charged iames wood of grange , to pay a sum wherein he was cautioner for the laird of balcaskie , to williiam smith merchant in edinburgh , who constitute richard potter assigny , who transferred the same , to the said iames slumond , and suspends . the reason of suspension was , because this bond was payed , and retired by balscaskie , the principal debitor ; who took a blank translation thereto , from potter the assigny ; which translation ; with the bond it self , were surreptitiously taken out of his coffer , by iames hay , who filled up this chargers name therein , likeas , the suspender produced a declaration of potter , that the sum was payed ●o him , by balcaskie , and therefore the suspender craved , that the oaths of this charger , the said iames hay , and potter , and also the witnesses , who were present at the payment of the sum might be taken before answer . which the lords granted , albeit the charger had the translation for an one●rous cause . children of monsual . contra laurie of naxweltoun . february . . the children of the laird monsuel , as executor to their father , pursues laurie of maxwelltoun , for a sum due by him to the defunct , who alleadged compensation , upon a debt due by the defunct , assigned to the defender , by the defuncts creditor , after the defuncts death , and intimat before any citation , or diligence , at the instance of any other creditor . the pursuer replyed , that debt compensed on , cannot take away this debt pursued for solidum ; because the defender , as assigny can be in no better case then his cedent , and if he were now pursuing ; he would not be preferred fore his whole sum , but only in so far as the testament is not yet exhausted , or other prior diligence done , for an executor , having but an office , can prefer no creditor , but according to his diligence , much less can any of the defuncts debitors , by taking assignation from any of the defuncts creditors , prefer that creditor whose intimation is no legal diligence . the lords found that the defender could be in no better case then the cedent , and could have only compensation , in so far as the inventar was not exhausted , or prior diligence used , they found also , that a decreet against a defender for making arrested sums forthcoming , at the instance of an of the defuncts creditors , was null , because the executor creditor was not called thereto , albeit decreet was obtained● at the instance of that creditor , against another executor in a former process . lady muswal elder contra lady muswal younger . february . . in a contention , betwixt the lady muswall elder , and younger , upon two annualrents out of one barony . the lords ordained the first annualrenter to do diligence , within twenty days after each term ; that after that time , the second annualrenter might do diligence , or otherwise , at her option ordained the lands to be divided , conform to the rents proportionably , as the two annualrents . the second annualrent and the first to take her choise . laird of pitfoddels contra laird of glenkindy . eodem die . in the revieu of a decreet in one thousand six hundred fiftie nine , at the instance of the laird of pitfoddels , against the laird of glenkindy● in which decreet , glenkindy cedents oath , having been taken , that the cause of the bond was , for an assignation to a wodset , which was excluded by apprizing , after report whereof , glenkindy the assigny alleadged , that his cedents oath could not prejudge him ; and it being answered , that he made no objection before the oath taken , neither could make any just objection , because the oath of the cedent any time , before intimation● is sufficient against the assigny , glenkindy answered , that his being called in that process as assigny , and compearing ; and insisting as assigny was an intimation , which was before taking of the oath , which was found relevant in the said decreet , and now rescinded by the lords , upon this consideration , that the citation being ad hunc offectum , to instruct the cause of the bond , the insisting in that pursuite could not be such an intimation , as to exclude the cedents oath . earl of bedfoord contra lord balmirino . february . . the earl of bedfoord , for satisfaction of his tocher , due by his father in law ; the deceast earl of sommerset , caused adjudge , in the name of a person intrusted , all right compent to the earl of summerset , of the estate of iedburgh , and being assigned to the adjudication , pursues the lord balmirino , for denuding himself of two apprisings of the estate of jedburgh , conform to three back-bonds produced ; granted by umquhile balmirino , to summerset , acknowledging , that he had acquired right to these apprysings , with summersets own money , and therefore oblidged him to denude himself thereof . the defender alleadged , that his father being intrusted by the late earl of summerset , to acquire the estate of iedburgh , and having the fee thereof in his person , the defender is not oblidged to denude himself , untill he be re-imbursed , and satisfied of all sums of money , which after the said back-bonds he payed for summerset , or advanced to summerset , which can only be accompted , to have been in contemplation of the trust , and is particularly so exprest , in summersets letters produced , bearing , that balmirino should be satisfied , of what was due to him , out of tiviotdale , whre the said estate of iedburgh lyes . the pursuer answered , non rel●vat , against him , as a singular successor . dly . non competit , by way of exception ; but the defender hath only action therefore : especially this trust being fidei-comissum ; which is a kind of deposition , in which there is neither compensation , nor retentation competent . dly . there can be here no compensation , because the debt is not liquid . the defender answered , his defense stands must relevant , which he founds not upon compensation , but upon the exception of retentation , which is competent in all mandats , and trusts , by which , as there is a direct action , in favour of the mandator , against the mandatar , or person intrusted ; so there is a contrare action , in favours of the mandatar ; for satisfying of all , that he hath expended , by reason of the trust ; and which he may make use of , beway of exception of retention , if he be pursued and whatsomever by in relation to compensation , in deposito , by the civil law , or of the difference of action , and exception ; yet , thereby they , and by our un contraverted custom , whatever is competent by way of action , is competent by exception , and if this be not receavable by exception , it is utterly lost , because there is none to represent summerset . the lords considering , that balmirino's estate was disponed , and apprysed , by his vncle , the lord couper , and william purvis , the reversion whereof was shortly to expire , which they would not lengthen , and that by an accompt running , to the expire of these reversions , the pursuer being a stranger , might be frustrat ; therefore they repelled the defense , but declared , that estate , or benefit that bedfoord should make thereby , should be lyable to balmirino , for what debt he should instruct to be due by sommerset , and withall supers●●eded the extract f●r a time , that if in the meane time , balmirino should cause couper and purvis restrict their rights , to as much rents as would pay their annualrents , and secure bedfoord in the rest of his estate , and in a certain bond produced , for what should be found due , they would sustain the defense by exception , and ordain compt and reckoning . lord carnagy contra lord cranburn . february . . the lord carnagie being infeft in the barony of dirltoun , upon a gift of recognition by the king ; pursues a declarator of recognition , against the lord cranburn , because the late earl of dirltoun , holding the said barony ward of the king , had without the king's consent , alienat the same to cranburn , and thereby the lands had re-cognized . the defender alleadged , first , no process , because he is minor , & non tenetur placitare super haereditate paterna . secondly , the re-cognition is incurred by the ingratitude , and delinquence of the vassal , yet delicta morte extinguntur , so that there being no other sentence , nor litiscontestation against dirltoun , in his own life , it is now extinct , which holds in all criminal and penal cases , except in treason only , by a special act of parliament . the lords repelled both the defenses : the first , in respect that the defender is not heir , but singular successor , and that there is no question of the validity of his predecessors right in competition with any other right , but the superiours . the other , because recognition befalls not as a crime , but as a condition , implyed in the nature of the right , that if the vassal alienat , his fee becomes void . children of wolmet contra mr. mark ker. eodem die . in a declarator of redemption , at the the instance of the children vvolmet , against mr. mark ker. it was found that the declarator needed not be continued , though the pursuer produced not the reversion , but an attestat double thereof , and offered to prove , that the principal reversion was in the defenders hands . which was sustained , the pursuers right being an appryzing . earl of calender . contra andrew monro . february . . the earl of calender pursues andrew monro of beercrofts , for the valued teind duty of his lands several years : who alleadged absolvitor , for the teinds intrometted with by his author , preceeding his right . the pursuer replyed , that teinds being valued , are like an annualrent , and are debiti fundi , by the act of parliament . anent valuations . the teind-masters being appointed to be infeft in the right of the teind , according to the valuation . the lords found the defense relevant , and found the teind not to be debitum fundi , albeit valued . halb●rt irvin contra mackertnay . februarie . . this day , in a spulzie betwixt halbert irvin and mackertnay . the defender principally called , having proponed a defense , upon a disposition and delivery of the goods in question , and craving to prove the same , by others of the defenders , called as accessory , as necessary witnesses , alleadging , that the pursuer had called all that were present upon the ground , as accessories , that thereby he should get no witnesses . the lords ordained the pursuer in the spulzie , to declare whether he would insist against these others , as accessory , or as applying any of the goods to their own behove , or if he would not , allowed them to be received as witnesses ; and if he did insist against them , ordained the processe against the principal partie to fist till the accessions were discussed , that such of them as were assoilzied might be used as witnesses . alexander arbuthnet of fiddes contra keiths . february . . alezander arbuthnet of fiddes , pursues keiths , the two daughters of john keith , and their husbands , for the avail of their marriages , belonging to him , as donatar by the earl of marischal their superiour . the defenders alleadged , first , no process , because nothing produced to instruct that the lands were waird , or that the earl of marischal is superiour . secondly , absolvitor from that conclusion of the summons● craving not only the ground to be poynded , for the avail of the tocher , but also the defenders personally to pay the same . thirdly , absolvitor , because the earl of marischal consented to the defenders marriage , in so far as he is witness in the contract . the lords repelled all these alleadgances : the first , in respect that waird is presumed , where the contrair is not alleadged , and the defender did not disclaim the earl of marischal as his superiour . the second , because they found , that the avail of the marriage did not follow the value of the land holden waird , but the parties other means and estates also ; so that the avail of the marriage might be much more worth then the profite of the waird land : and therefore behoved not only to affect the ground , but the heir , or appearand heir personally : and as to the other defense of the earls consent , it was after this granted , and was only as witness , neither is the profite of the marriage , as to the single avail , taken away by having of the superiours tacit consent : but is a casuality simply belonging to him , which cannot be taken from him , unless — id — ageb●tur , to renunce the benefite thereof , yet it seems that the superiour , consenting to his vassals marriage , can crave no greater avail then the vassal gets of tocher . brown contra iohnstoun . february . . brown having obtained decreet against archibald iohnstoun of clachrie for two hundred pounds sterling : he raises reduction and review upon this reason , that the ground of the said decreet was a bill of exchange drawn by johnstoun , to be payed by mukgown in blackainor-fair in england , ita est , the alleadged bill is null , not designing the writer , nor having any witnesses , neither hath it the subscription of johnstoun , nor the initial letters of his name , but only a mark , most easily initiable , which is written about with an unknown hand : archibald johnstoun his mark , it being reasoned amongst the lords , whether this could be accompted a writ probative ; and it being alleadged an astruction thereof , that this johnstoun being a merchant and a drover , was accustomed ordinarly so to subscribe , and to give bills for far greater sums then this . the lords thought it would be sufficient amongst merchants , though it wanted witnesses , but being unwilling via ordinaria , to allow of such a writ , or subscription , for which we have neither custom nor decision : yet in respect of the decreet , and of the alleadged custom so to subscribe : they before answer , ordained the oaths ex officio , to be taken of the writer of the bill , if he could be condescended on by either party , and of the witnesses who saw johnstoun write this mark , or receive the money , for which the bill was granted . creditors of kinglassie . competings . eodem die . in a competition betwixt the creditors of hamiltoun of kinglassie . it was alleadged for william hume , who had right to an annualrent , that he ought to be preferred to joseph lermont , who stood publickly infeft in the property , in anno . because albeit the annualrent of it self was base , yet long before , it was validat by a decreet for poynding of the ground . it was answered , that there was no way to make a base infeftment valide , but by possession : here there could be no possession , because the annualrent was granted to take effect only after the granters death , and the decreet thereupon was obtained long before his death , and so could be repute no possession . the lords were of opinion , that the foresaid decreet of poynding of the ground upon the base infeftment , ordaining the ground to be poynded ( the terms of payment being come and bygone ) was sufficient to validate the base infeftment : and that thereby it remained no more a private clandestine infeftment , by many other questions falling in . the matter was laid aside without decision , vide february . . inter eosdem . john kinard contra laird of fenzies . eodem die . john kinard pursues a declarator of property of a myre or marish in the carss of gowrie , against the laird of fenzies , who had his land on the other side thereof , alleadging that he and his predecessors and authors , have been fourty years in possession of the myre , as proper part and pertinent of the barony of rossie , and that the same is severally kend and known by march and meith , and a dyke inclosing it from the defenders lands : it was alleadged for the defender , that he , his predecessors and authors , this fourty years has been in possession of the said myre , by doing all the deeds libelled by the pursuer , which must give them right , at least of common passurage , fail and divot therein : and therefore craves the defense to be found relevant , and admitted to his probation , at least that a cognition might be by an inquest , conform to the act of parliament , and witnesses led , hinc inde . the pursuer replyed , that he offers him to prove that by the space of fourty years , he , his predecessors and authors possessed the said myre , not only by the deeds libelled ; but also did divide the same in several parcels to each tennent in the barony , and was accordingly possessed by them , which is sufficient to show that they bruiked the same as property , and not a promiscuous commonty . and as for the defenders alleadgances of commonty by common pasturage , &c. the same ought to be repelled ; because the pursuer offers him to prove that he interrupted and debarred the defender from time to time , which hindered him to acquire a right of commonty , by possession and prescription , and he cannot alleadge that he hath any other right by express infeftment ; and therefore being so much more pregnant then the defender , there ought to be no cognition , but he preferred in probation . the lords repelled the defense in respect of the libel and reply , but granted commission to one of their number , to examine witnesses for the pursuer , omni exceptione majores , after which , the defender passing from his compearance , the lords declared they would give the extract of the interlocutor to the pursuer , and give his libel and reply by way of condescendence , and declaration of the manner of the property , and of his possession to his probation . viscount of stormount contra heirs of line , and creditors of the earl of annandale . eodem die . the viscount of stormont pursues a declarator against the heirs of line , of umquhil james earl of annandale , and several creditors of the said umquhil earl , who had appryzed the lordship of skoon , and were infeft thereupon ; to hear and see it found and declared , that david viscount of stormount had disponed these lands , to mungo viscount of stormount his brother , and the heirs-male of his body , which failzing , to andrew lord balvaird , and the heirs-male of his body , &c. with this express provision in the charter , and repeated verbatum in the seasine , that it should not be leisom to the said mungo , or any of the heirs of tailzie for the time , to alienate the lands , or alter the tailzie , or to do any deed , whereby the same may be evicted , or apprized , from the heirs of tailzie , otherwise their right should expire , and should belong to the next heir of the contraveener , and that thereby iames earl of annandale last infeft , had contraveened the said clauses by contracting thir debts , whereupon the lands were apprised : and thereby had lost his right , and that the saids creditors bonds and their apprizings are thereby null and void : and likewise that the said iames earl of annandale , his retour was null , and that the pursuer might yet enter as heir to mungo viscount of stormont , as if the said iames earl of annandale had never been infeft . the defender alleadged ; first , no proses in this order without a reduction , without which no infeftment can be taken away . the lords repelled this alleadgence , and found that a declarator was al 's effectual as a reduction , when all was produced that was necessar to be produced before the ground of nullity were discussed , with which all the rest will fall in consequence , and that reduction was only necessar to force tho defenders to produce by the certification , but if the defender would produce himself , he might proceed by way of declarator of nullity . secondly , the defender alleadged no processes , because by the co-ception of the clauses irritant , the rights is declared to belong to the nearest heir of the contraveener ; and therefore the pursuer as served heir-male general to andrew lord balvaird , hath no interest till he be served heir-male to iames earl of annandale the contraveener , in which case he cannot quarrel his deeds or debts . the pursuer answered , that by heir here cannot be understood the heir actually served , but the person only that might be heir , for the pursuer insisted in this same processes against the earl of annandale , when he was living , and could not have been then excluded , because he was not his heir ; and therefore as is ordinar in all clauses in relation to heirs , which cannot be effectual , if heirs served be understood , their heirs appearing are understood , verba sumenda sunt cum effectu . the lords also repelled this defense . thirdly , the defenders alleadged absolvitor : because , first , clauses de non alienando , are never understood to extend to necessary alienations , as for provision of the feears wife and children , for redemption of him from captivity , or any other accident , without his fault . secondly , clauses de non contrahendo debitum are against commerce , and utterly rejected . thirdly , clauses irritant are resolutive , albeit contained in the infeftment , are but personal obliegements , and the ground of an action against the contraveener ; but if the contraveener be denuded , are not effectual against singular successors ; especially creditors contracting bonafide , with one standing infeft , before the matter became litigious by processes , upon that clause , seing no inhibition was used : ita est , thir creditors had apprized and were infeft before any such processes upon this clause , or inhibition used , and no personal provision could transmit the right from annandale to stormount , upon contraveening the clausses , nor could hinder the transmission thereof from annandale , who had the only real right to the creditors , by vertue of their appryzings and infeftments , which denuded annandale of the real right , and which real right stands now only in the person of the creditors infeft , so that there can be no more in stormounts person , but a personal provision , for the being within the body of the infeftment , will not make this clause real , and to affect the right , quo ad singulares successores , more then the clause of warrandice in the infeftment , which without question , reaches not singular successors ; and albeit some provisions in themselves personal , may aff●ct singular successors , as the provision , that if two years run together , the feu shall become void , or the clauses of reversion , or the inherent clauses , or quality in ward holding , but these become real by law and statute ; for we have a particular act of parliament anent reversions , to be effectual against singular successors ; and another anent feus , ●b non solutum canonem : and there is no other case that such provisions are real . the pursuer answered to the fi●st ; albeit alienations do not comprehend judicial alienations by appryzing in recognition , and are oftimes not extended to necessar alienations : yet here the clause bears expresly not to altenat , and also to do no deed whereby the laws may be evicted and apprized ; without which the clauses de alienando , were utterly ineffectual , and repeats the same to t●e second . as to the third , albeit de facto , the real right be in the appryzers infeftment , yet it is in them effected , with that quality in the condition and bosome of it , that gives good ground , not only against the earl of annandale contraveener , to annul his right ; but also the apprizer in consequence , quia resoluto jure dantis , resolvitur jus accipientis , especially in feudal-rights , where provisionis investiturae , sunt legis feudi , as all feudists agree , and therefore all such pactions and provisions are equivalent to law. d . this clause of the infeftment is not only resolutive , but also is an interdiction prohibiting the feear for the time , to alienat , or do any deed prejudicial , without consent of such other persons of the tailzie , were majors for the time ; and therefore , though the pursuer should enter heir to annandale , he might annul these rights , just as in the case of an heir of an interdicted person , who may annul all rights by his predecessors after the interdiction . the defenders answered , that as to this point concerning the interdiction , it cannot be effectual ; because by a particular act of parliament , all interdictions are appointed to be published , and to be registrat in the registers of inhibitions , otherways they are null : this interdiction is neither published nor registrat in that register . the pursuer answered , it is al 's publick , because it is not only in his infeftment , at the great seal , but it is verbatum in the first seasine , and repeated in the earl of annandales retour and seasine , so as that the creditors ought to have considered his condition when they lent him money , and known that he was infeft , otherwise their mistake , though it might be alleadged to be bona fidae ; yet if annandale hade never been infeft , their bona fides would have wrought nothing , seing therefore they did it on their peril , unless they knew he was infeft , and they could not know he was infeft by inspection of his seasine , or of the register , but they behoved to know this clause , which is verbatum in it . the lords did also repel this defense and duply , in respect of the reply and triply , and found the resolutive clause effectual against singular successours , especially considering it was so publick and verbatim in the seasine , and that it was equivalent to an interdiction . thirdly . the defender further alleadged absolvitor , because the pursuer had● behaved himself as heir to the earl of annandale , by intromission with the mails and duties of the same lands . the lords repelled this defense , because the pursuer having intented declarator against annandale in his own life , they thought the provision was equivalent to an interdiction , which purged that passive title . creditors of kinglassie . february . . in the competition betwixt the creditors of kinglassie mentioned the former day , the dispute anent the base infeftment , made publick by the poinding of the ground so long before the term of payment , being reasoned before the lords in presentia , they sustained the same as before . marjory chalmers contra william dalgardno . eodem die . marjory chalmers pursues william dalgardno as vitious intromettor with a defuncts goods , to pay his debt , who alleadged absolvitor , because the rebel died at the horn , and so had no goods . secondly , the defender hath the gift of his escheat , and also is executor creditor confirmed to him . thirdly , the defender had a disposition of all the defuncts goods , albeit he possessed not thereby during his life ; yet he might enter in possession , after his death , and not be vitious intromettor . the lords found this defense relevant , to elide the passive title , but prejudice to either party , to dispute their rights , as to the simple avail of the goods ; and they repelled the first defense , and found the second and third defenses relevant only , if the gift was before the intenting of this cause william hamiltoun contra mcfarlane of kirktoun . february . . william hamiltoun pursues iames mcfarlane of kirktoun , as successor titulo lucr●●ivo to his father , to pay his debt , who alleadged absolvitor , because he was not alioqui successurus , in respect that at the time of the disposition , he had , and hath an elder brother , who went out of the countrey , and must be presumed on life , unless the pursuer will offer to prove that he was dead before this disposition ; so that at the time thereof , the defender was not appearand heir & alioqui successurus , because vita presumitur . the pursuer answered , the defense was not relevant , unless the defender would be positive , that the time of the disposition his elder brother was on life ; especially seing he had been out of the countrey twenty years , and was commonly holden and repute to be dead . the lords sustained the defense , that the elder brother was on life the time of the disposition , and reserved to their own consideration the probation , in which if the defender proved simply , that his brother was actually living the time of the disposition , there would remain no question : and if he prove that he was living about that time , they would consider , whether in this case , the presumption of his being yet living , should be probative . pa●rick herron contra martein stevenson . iune . . patrick herron having obtained decreet of removing against martein stevinson , he suspends on this reason , that the decreet was not upon litiscontestation ; but a time being assigned to the suspender , to find caution for the violent profits , and he failing , was decerned without being admitted to any defense ; and now alleadges , that he ought not to remove , because he obtained decreet of adjudication of the lands in question , against the common author , and thereupon charged the superiour long before the chargers decreet of adjudication or infetment . the charger answered , that the reason ought to be repelled , because the decreet was given against the defender , compearing and failing as said is . secondly , the charger stands infeft upon his adjudication . the pursuer was never infeft , neither did he use all diligence to get himself infeft , not having denunced the superiour , and in case he had suspended , discussing the suspension . the lords found the reason relevant and proven , and suspended ; because they found no necessity for an appryzer to use further diligence against the superiour , then the charge of horning , unless the superiour had suspended both , and that in competition the other party had done greater diligence . earl of marischal contra charles bray . iune . . the earl of marischal having obtained decreet in his own baron court , against bray , compearing for a years rent of his maines of dunnottor , herein he had been possest by the english , bray suspends , and alleadges compensation upon a bond assigned to him , due by the charger , who answered competent and omitted , and so not receivable in the second instance ; especially being compensation , which by special act of parliament , is not to be admitted in the second instance . the lords sustained the reason of compensation , and found that a baron court was not such a iudicature , as that alleadgences competent and omitted , that should be repelled in the second instance . mr. iohn wallace contra forbes iune . . robert and william forbeses and heugh wallace , being bound in a bond as co-principals , heugh wallace being distressed for all , consigned the sum to this chargers son , forbes suspends on this reason , that there is no clause of relief in the bond , and wallace being debitor in solidum , and having gotten assignation confusione tollitur obligatio . the charger answered , that though there was no clauses of relief , hoc i●est , where many parties are bound conjunctly and severally , that each is oblieged to relieve others . the lords repelled the reason of suspension for the suspenders part , and found them lyable therefore , but not for the other co-principal parties . isobel drummond contra iean skeen . eodem die . isobel drummond pursues iean skeen as behaving her self as heir to her brother iames skeen , by uplifting the mails of the lands , wherein he dyed infeft , to fulfill her contract of marriage with iames. the defender alleadged absolvitor , because the uplifted those duties by vertue of her infeftment , being served heir to iohn skeen , son to iames skeen , the pursuers debitor , who was infeft , not as heir to his father iames , but as heir to her good-sire . the pursuer answered , in respect to the defenders seasine , or to iohn skeens , which were evidently null , seing iames skeen was infeft , and so john could not pass over him to his goodsire ; and if any regard were to such infeftment , it would open a door to all fraud , and abstracting of defuncts creditors evidents . the lords found the defense relevant to purge this viticus passive title , seing the f●●●zie was not in this defender , but in john skeen his brother son , but prejudice to reduce as accords , but ordained her to renunce to be heir to james , that adjudications might be obtained . mr. alexander vernor contra george allan . june . . mr. alexander vernor as executor to mr. david calderwood , charges george allane , to pay a part of the defuncts stipend , as he who intrometted with the teinds of the lands lyable therefore , whereupon he had obtained decreet . the suspender alleadged that the decreet was in absence , and any intromission he had , was only as a merchant having bought from sir alexander auchmutty the heretor , to whom he made payment bona fida , before any arrestment , or pursuit against him . the charger answered non relevat , because the suspender is oblieged to know , that by law , the teinds are lyable for the ministers stipend . secondly , he offers him to prove that the suspender did not make his bargain for so many bolls of victual ; but that he took disposition of the corns ipsa corpora , before they were drawn . the lords found the answer relevant , to elide the reason , and found the defender lyable for the tenth part of the cornes he bought . robert hay contra hoom of blackburn . eodem die . robert hay tailzior pursues hoom of blackburn , as representing his father upon all the passive titles , to pay a debt of his fathers . the defender alleadged absolvitor , because there was nothing produced to instruct the debt , but an extract out of the register , bearing the bond to have been registrated by his fathers consent , whereas it is nottour and acknowledged by the summons , that his father was dead long before the date of the registration . the pursuer answered , the extract is sufficient to instruct the verity of the bond , being in a publick register of the session ; alb it the defunct was dead the time of the registration , which might have been the creditors mistake , and cannot prejudge them , seing vitapresumitur , especially now , when through the loss of the registers , principal writs cannot be gotten . the defender opponed his defense , and the decisions of the lords , lately in the like case concerning the earl of errol , because nothing can instruct against any man , but either a writ subscribed by him , or the sentence of a judge upon citation or consent , and this is neither . the lords refused the extract simply , but ordained the pursuer to condescend upon adminicles for instructing thereof , either by writ or witnesses , who saw the bond , &c. of woodhead contra barbara nairn . eodem die . woodhead pursues barbara nairn , for the mails and duties of certain lands . the pursuer alleadged absolvitor , because she defender stands infeft in liferent of these lands . it was replyed , the defenders husband disponed these lands to the pursuer with her consent , subscribing the disposition . it was duplyed , the defenders subscription and consent was extorted , metus causa , whereupon she has action of reduction depending , and holds the production satisfied with the writs produced , and repeates her reason by way of duply , viz. if she was compelled by her husband it was by just fear ; because she offered to prove by witnesses , that he threatned her to consent , or else he should do her a mischief , and that he was a fierce man , and had many times beaten her , and shut her out of doors , and offered to prove by the nortar and witnesses insert , that at the time of the subscription , she declared her unwillingness . the lords found the defense and duply relevant . david wilkie contra sir andrew ker. eodem die . david wilkie and others , tacks-men of the castoms , charged sir andrew ker for the tack-duty of the customs of the border , anno . set by them to him , he suspends , and alleadges by the publick calamity of the english entry , in anno . in iuly , traffick was hindered , and by the kings proclamation , against commerce with these . the charger answered , it was a casuallity ex natura rei , and that they had payed without defalcation , and the suspender had profit in former years . the lords before answer ordained the suspender to compt upon what benefit he got in anno . and what profite above the tack-duty in former years . adamsons contra lord balmerino . iune . . adamsons being infeft in an old annualrent out of two tenements in leith , and having thereupon obtained decreet of poynding the ground in anno . and insisting for poinding one of the tennents goods , now belonging to the lord balmerino , for the whole annualrent ; balmerino suspends on these reasons ; first , the heretor against whom the decreet of poinding was obtained , and all the tennents were dead ; and therefore it can receive no summar execution , against the present heretor and his tennents , but there must be a new decreet against them . secondly , balmerino hath peaceably possessed this tenement twenty or thirty years , and thereby hath the benefit of a possessory judgement , by which his infeftment cannot be questioned without reduction and declarator . thirdly , the englishes possessed this tenement several years by the publick calamity of war ; and therefore there must be deduction of these years annualrents , as is frequently done in feu-duties . fourthly , the two tenements being now in the hands of different singular successors , balmerino's tenement can only be poinded for a part of the annualrent . the pursuer answered , that poinding of the ground is actorialis , chiefly against the ground ; and therefore during the obtainers life , it is valued not only against the ground , while it belonged to these heretors and possessors , but against the same in whosoever hands it be , that the moveable goods therein , or the ground right thereof may be apprized . to the second , annualrents are debita fundi , and a possessory judgement takes neither place for them , nor against them . to the third , though in some cases feu-duties ceass by devestation , that was never extended to annualrents , due for the profit of a stock of money . to the fourth , the annualrent being out of two tenements promiscuously . the annualrenter may distress any part for the whole , in whosoever hands the tenement may be . the lords repelled all these defenses , but superceded execution for one half of the annualrent for a time , and ordained the suspender to give commission to balmerino to put the decreet in execution against the other tenements for its proportion , for his relief , medio tempore . wilson contra thomson . eodem die . wilson having obtained decreet against thomson , for poinding of the ground of a tenement of land , thomson suspends on this reason , that the chargers infeftment is base , and before it was cled with possession , the suspender was publickly infeft , and thereby excludes the base infeftment though prior . the charger answered , that the reason ought to be repelled , because he had used citation upon the base infeftment , before the publick infeftment , by which citation , res fuit letigiosa . the lords repelled the reason in respect of the answer , and found the base infeftment validat by the citation , whereupon the decreet followed . ruthven contra laird of gairn . iune . . the laird of gairn having infeft his son in his estate , reserving his own liferent ; after his sons death , his oye pursues him for an aliment out of the estate , conform to the act of parliament , appointing the heir to be entertained by the donatars to the ward , conjunct-feears , or liferenters thereof . the defender alleadged absolvitor , because the act of parliament cannot be extended to his case , who voluntarly infeft his son in his estate , with the burden of his liferent . secondly , if any aliment were due , the mother who is liferenter must bear her part . thirdly , aliment is only due where the heir hath no other means ; but here the heir hath a stock of money , which though liferented by his mother , yet he may entertain himself out of the stock . the pursuer answered : first , that the act of parliament anent alimenting of heirs , is generally against liferenters without exception . secondly , the disposition by the defender to the son , was for a tocher worth all the estate he then had ; wherefore no part was liferented by the son , or his wife , the pursuers mother , but only a sum of money which came by her self , and there is no reason that the stock thereof should be exhausted for the pursuers aliment , the defender having now succeeded to a plentiful estate . the lords repelled the defense in respect of the replyes . mr. david watson contra mr. iames ellies . eodem die . mr. david watson having acquired right to the superiority of stenhouse milne , pursues the feuers , for their feu-duties , who alleadge , first , no process , the lands in question , being kirk-lands , disponed to a lord of erection ; and it is declared , that the lords of erection , having only right to the feu-duty , till they be redeemed by the king , at ten years purchase , by the act of parliament thereanent , in anno . and thereby none have right , but such as subscribed the submission , surrendring their interest in the king's hands , untill the pursuer instruct , that his author did subscribe the said submission , he hath no interest . secondly , absolvitor , from the feu-duties , . and . because the lands were wasted these years , by publik calamity of war. thirdly , absolvitor from harrage and carrage ; because all services are reserved to the king , by the said act of parliament . the lords assoilzied from harrage and carrage , but differed for the feu-duty , being smal , and found no necessity for the pursuer to instruct , that this author did subscribe the surrender , after so long time , but that the same was presumed for his so long bruiking the fee. sir william wilson contra sir william murray . eodem die . wilson having apprysed sir william murrays estate , pursues him and his tenents , for mails and duties , who alleadged , that by the act of parliament . anent debitor and creditor , the lords are impowred to restrict apprysers , to a part of their lands apprysed , sufficient for the annualrent , and to leave the rest to the debitor . the lords did accordingly restrict , but give the appryser his option of any of the apprysed lands , ( except the debitors house and mains ) paying eight per cent . effeiring to the sum apprysed for ; the appryser being comptable for the superplus above the annualrent , and publick burdens● dame margret hay contra george seaton of barnes . iune . . umquhile sir iohn seatoun of barnes , having provided george seaton his son , by his contract of marriage , to his lands of barnes , some diferences rose amongst them , upon the fulfilling of some conditions in the contract , for setling thereof , there was a minute extended by a decreet of the judges , in anno . by which the said dame margaret hay , second wife to the said sir iohn , was provided to an hundred pound sterling in liferent , and it was provided , that sir john might burden the estate with ten thousand merks to any person he pleased , to which george his son did consent , and oblidged himself , to be a principal disponer , sir iohn assigned that clause , and destinat that provision , for hendrie seaton his son , in fee , and for the said dame margaret hay in liferent , whereupon she obtained decreet before the lords , the last session , george suspends the decreet , and raises reduction , on this reason● that the foresaid clause , gave only power to sir iohn , to burden the estate with a . merks , in which case george was to consent , and dispone , which can only be understood of a valid legal and effectual burden thereof , but this assignation is no such burden , because it is done in lecto egreditudinis , and so cannot prejudge george , who is heir , at least appearand heir to his father . the charger answered , that the reason was no way relevant . first , because this provision was in favours of the defuncts wife , and children , and so is not a voluntar deed , but an implement of the natural obligation of providing these . dly . this provision , as to the substance of it , is made in the minute , and extended contract in the fathers health ; and there is nothing done on death-bed , but the designation of the person , which is nothing else , then if a parent should in his life time give out sums payable to his bairns , leaving their names blank , and should on death-bed fill up their names . the suspender answered , that he opponed the clause , not bearing de presenti , a burden of the land , but a power to his father to burden , neither having any mention of death-bed , or in articulo mortis , or at any time during his life , and though the dead , on death-bed be in favours of wife , and children , it hath never been sustained by the lords in no time , though some have thought it the most favourable case . the lords sustained the provision , and repelled the reason of reduction assoilzied therefrom , and found the letters orderly proceeded . dorathie gray contra oswald . eodem die . umquhile mr iohn oswald , having married dorathie gray , in england , did at the time of their contract , grant an english bond of a lib. sterling to the said dorathies mother , and on wilson , ad opus & usum dictae doratheae , the condition of which obligation , is , that if mr. iohn shal pay the saids intrusted person , the sum of lib. sterling , or shall secure the said dorathie in lands , or cattels , worth thesaid sum of lib. in in his life time , or be his testament . then he shall be free of the lib. mr. iohn granted assignation to the said dorathie of merk due to him by the earl of lauderdale , bearing expresly the same to be for implement of the bond , and assigning , both principal sum , and annualrent , dorathie confirmed her self executrix to her husband , gives up this bond , and obtains decreet against lauderdale ; who calls dorathie on the one part , and the appearand heir , and creditor , of the said mr. john on the other part . it was alleadged , for the appearand heir , and creditors , that they ought to be preferred to the stock of the sum , because the clause , ad opus & usum , could only be understood to be for dorathies liferent use , and not in fee , and as for the assignation , it was on death-bed , and so could operat nothing in their prejudice . it was ; answered , for the said dorathie , that she opponned the clause . the meaning thereof was no other , but that her mother and wilson , were creditors in trust to the use , and behove of her , and could not be a liferent right , because it was provided to her , her heirs , executors , and assigneys ; and as to the assignation , though on death-bed , yet it may very well be used , as an adminacle , to clear the meaning of the parties . the lords found the clause to carrie the stock of the money , and preferred dorathie , and it being thereafter offered to be proven , that by the custom of england , such clauses signifie only the liferent use . the lords repelled the alleadgance ; in respect of the clause , being provided to dorathies heirs and assignies , and in respect of the clearing meaning thereof by the testament , would not delay , the process , upon the proving the custome of england , the matter being clear in the contrair . william baillie contra margaret henderson and ianet iameson . iuly . . by minute of contract , betwixt umquhile iameson , and baillie , baillie oblidged himself to infeft iameson in a tenement , for which iameson oblidged himself to pay three thousand merks of price , iameson being dead , without any further progress upon the minute . baillie pursues the said margaret henderson , as executrix to him , and the said ianet iameson , as heir to pay him the price . it was alleadged , for the executor , absolvitor , because , the bargain being incompleat , the heir must perfit it , and dispone the tenement , and so can only be lyable for the price ; for by the performance of mutual minute , the heir will only get the land , and therefore the executor should not be lyable for the price , or at least if the executrix be decerned to pay the price ; the pursuer must dispone to her the third part of the tenement in fee , and the two part to the heir , she being the only child , and having right to the two third parts of the moveables , which moveables being exhausted , by the price of the tenement ; the tenement ought to come in place of the price . the pursuer answered , that he could dispone no otherwise , then according to the minute , but the executrix might betake her recourse against the heir , as she pleased , but both as representing the defunct , were lyable to him . the lords decerned the executrix to make payment , and would not bring the debitor , betwixt the heir and her in this process , for the third of the tenement , or for her terce thereof , but reserved the same , as accords . breidy contra breidy and muire . eodem die . a contract of marriage was sustained , both against principal and cautioner , albeit subscribed , but by one nottar , and by one subscribing witness , there being more witnesses insert , in respect , that marriage followed thereupon . lord couper . contra lord pitsligo . iuly . the lord couper alleadging , that being sitting in parliament , and taking out his watch , to see what hours it was ; he gave it to my lord pitsligo in his hand , and that he refuses to restore it ; therefore craves to be restored , and that he may have the value of it , pretio affectionis , by his own oath . the defender alleadged absolvitor , because the lybell is not relevant , not condescending , quo modo , the defender is oblidged to restore , for if the pursuer insist upon his real right of the watch , as proprietar , the lybel is not relevant ; because he subsumes not that the defender is possessor , or haver of the watch , at the time of the citation , or since , or at least dolo desijt poisidere ; or if the pursuer insist upon a personal obligation , he ought to subsume , that the defender borrowed the watch , or ●ook the custody thereof , and thereby is personally oblidged to keep and restore . secondly , albeit the lybel were relevant , absolvitor , because the defender offers him to prove , that the pursuer having put his watch in his hand , as he conceives , to see what hours it was . the defender , according to the ordinar civillity , they being both sitting in parliament . the lord sinclar putting forth his hand , for a sight of the watch ; the defender did , in the pursuers presence , put it in his hand , without the pursuers opposition , or contradiction , which must necessarily import his consent , and liberat the defender . the pursuer answered , that he did now condescend , that he lent his watch to the defender , and that there was betwixt them , contractus commodati , because the defender having put forth his hand , signifying his desire to call for the watch. the pursuer put the same in his hand , and though there was no words , yet this contract may be celebrat , by intervention of any signe of the parties meaning , which here could be no other then that which is ordinar , to lend the defender the watch , to see what hours it was , which importeth the defenders oblidgment to restore the same . to the second defense , non relevat , because the defenders giving of the watch to the lord sinclar , was so subit an act , that the pursuer could not prohibite , specially they being sitting in parliament in the time : and therefore in that case his silence cannot import a consent , the lords sustained the lybel , and repelled the defence , but would not suffer the price of the watch to be proven by the pursuers oath , but pro ut de jure agnes peacock contra mathew baillie . eodem die . agnes peacock , as executrix to her husband , having pursued mathew baillie , for payment of a sum of money ; he offered to prove payment , and at the term produced a discharge , whereupon the pursuer took instruments of the production , and offered to improve the same ; and craved that the defender might be ordained to compear personally , and bide by the same , and a term being assigned for that effect ; and the pursuer ordained to consigne a pand , in case she secumb , in the improbation ; and an act extracted thereupon . the defender coming from the country , and appearing personally . the pursuer alleadged , the discharge is null , wanting witnesses . the defender alleadged non competit in this state of the process , after the exception of falshood , quae est exceptoinum ultima ; but if the defender had alleadged the same at the production . the defender would have replyed , that it was holographon , and excluded any improbation . the lords found the exception of nullitie not competent in this state of the process . allison kello contra paxtoun . eodem die . in a process betwixt these parties , an exception having been proponed . the lords before answer , ordained the proponer to produce the writs , with certification , that the defense should be holden as not proponed , in termino certificatione , being craved , an incident was produced , because the writs were the proponders authors writs , and in their hands . it was answered , that the incident was not competent , there being no litiscontestation it was answered , that it was most competent , wherever there was a certification , as in acts in reduction , and improbation . the lords found the meaning of such acts , and certifications to be only , that the parties should produce their own writs , they would make use of , and such of their authors writs , as they had the time of the act , and that the other partie might have their oath thereupon , if they pleased , and therefore refused the incident . rentoun of lambertoun contra earl of levin . eodem die . lambertoun having intented an improbation of lands , alleadged , subscribed by his father in favours of the umquhile countess of levin , and her daughters , and others : and having proceeded to the indirect manner articles of probation , and improbation were given in writ hinc inde , and a full dispute thereupon , and all such witnesses examined , as either partie craved . the lords having perused , and read the whole process , did , upon the defenders desire , allow them to be heard viva voce , and both parties compearing . the pursuer referred the dispute to the lords , without saying any further . and the defenders having related the case , and debated in general , anent the taking away of writs , by presumptions and conjectures , and having entred to repeat all that was in the written dispute , and to answer every alleadgance . the lords declared , that it was not their meaning , that the dispute should be repeated , but the material , and weighty points , which the defender thought of most importance , to have been resumed , and urged shortly ; referring to the rest the lords . therefore , they ordained the defenders , to order their alleadgences , as they might , for all that they had to say betwixt ten and twelve , the nixt day , without any further , unlesse the pursuer answered . thomson contra mackitrick . eodem die . thomson and mackitrick having apprysed some tenements in drumfriese , mackitrick the first appryser insists for mails and duties . thomson alleadged , mackitrick's seasin was null , as being within burgh royal , and not given by the baillies , and town clerk of the burgh , conform to the act of parliament . the pursuer answered , that his seasin was given by the provost , and by a nottar , whom he imployed as town clerk ; not only in that , but in several other acts : and that because the town clerk was excluded from his office , for not taking of the tender ; and upon the same accompt there was no baillie ; so that to compleat this legal diligence , he was necessitat to take infeftment by the provost , which is sufficient in such cases ; because , though the act of parliament mention the baillies of the burgh , that it is in opposition to baillies in that part , but cannot be understood in opposition to the provost , who has major●m iurisdictionem , quia majori inest minus , and offers them to prove , that he was provost , at least habitus & reputatus provost and that he did imploy his nottar , as town clerk for the time . the lords sustained the alleadgeance to prefer mackitrick . the executors mr. iames fairly minister of leswald . contra the parochiners . iuly . . the executors of mr. iames fairly , having obtained decreet , before the comissaries , against the parochiners , for the ann , as being the hail year , . in respect the minister died in february , in the year . the decreet was suspended , on this reason , that the ann could only be half a year ; seeing the minister died before the sowing of the cropt , or whitsonday ; because , if a minister serve after whitsonday , he has the half of that years stipend , albeit he be transported , or deposed ; otherwayes , if a minister should serve the whole year till michalmass day , and then be transported , or deposed , he should get nothing ; so that the ann being half a years stipend , more then the minister served for , he having only survived till michalmes . has only the right to the michalmes proprio jurae , and half a year thereafter , as the ann. the charger answered , that in teinds and stipends , there are not two terms , but michalmes for all , and therefore , if the incumbent be disposed or transported before michalmes , he has nothing that year , but if he die after michalmes any time before the beginning of the nixt year proprio jure , he has the year he died in , and the half of the next , as his ann , but if he live till ianuary in the year ensuing , he has that whole year , as his ann. which the lords found relevant ; and therefore the lords found the letters orderly proceeded . duncan drummond contra colline campbel . eodem die . dvncan drummond pursues colline campbel , for payment of a debt of his fathers , because in a writ betwixt his father and him . the father had disponed all his moveables to him , and he had undertaken his fathers debt , whereby the pursuer , as creditor , had interest to pursue him , to pay this debt . the defender having alleadged , that the band and disposition was never a delivered evident , either to the father or to the son ; but two blanks subscribed by them , both were put in the hands of a nottar ; to fill up the bond and disposition ; but before delivery , both parties resyled , and desired the nottar to cancell and destroy them , yet eight or nine years after the nottar gave them up to this pursuer ; and neither to the father nor to the son , and the question being how this should be proven . the lords before answer ordained the nottar , and witnesses insert to be examined ex officio , which being done their testimonies proved , as is alleadged before . then the question was in jure , whether the depositation of writs could be proven any other way , then by the oath of the partie in whose favours the writs were conceived , he having the same in his hands . the lords found , that seeing these two writs were not produced by the father , nor the son , by and to whom they were mutually granted , but by a third partie , in whose favours a clause therein was conceived , in that case , the deposition probable by the writer and witnesses insert , and by the saids testimonies found the writs null . robert bones . contra barclay of iohnstoun . iuly . . robert bones having arrested certain goods , and bestial , as belonging to iohn wood , his debitor , in the hands of barclay ; pursues for making the same forthcoming . the defender alleadged absolvitor , because the goods lybelled the time of the arrestment , were the defender proper goods , disponed to him , by the said iohn wood , for anterior rests and debts , and delivered also before the arrestment . it was replyed , the defense ought to be repelled ; because wood the disponer was rebell , and at the horn , before the delivery of the goods , at the pursuers instance , and whereby the tradition being after the horning , the disposition is null , as being incompleat before the horning , and after the horning the rebel could do nothing to prejudge the king , or his donatar , or the pursuer , for the debt , whereupon he was denuded , which by the act of parliament one thousand six hundred twenty one , affects the escheat goods ubicunque . the defender answered , that the reply is not relevant , unless it were alleadged , that the horning had been before the disposition ; for it is lawful for creditors , either to poynd , arrest or take dispositions of their debitors goods though rebel , being for debts anterior to the horning , if the disposition and delivery be prior to declarator , neither can the act of parliament , one thousand six hundred twenty one , against dispositions , in defraud of creditors operat here ; because the disposition is anterior to the horning , and for an onerous cause . the lords found the defense relevant , notwithstanding the reply . laird of lamertoun contra hume of kaimes . iuly . . hoom of kaimes being infeft upon an appryzing of the lands of northfield , led against lamertoun , pursues the tennents for mails and duties , and obtains decreet , which was suspended , and reduction thereof raised on this reason , that it was spreta authoritate judicis , there being an advocation judicially produced , before the sheriff , before pronouncing , at least before the extracting of this decreet , in so far as the suspender came to the sheriff court , at the ordinar time of the court day , at eleven hours , and produced the advocation , but the sheriff had fitten down that day contrair his custom , at ten hours , and had pronounced the decreet before eleven hours . the charger answered non relevat , that the advocation was produced before extract , not being before sentence pronounced , because albeit inferiour judges are accustomed sometimes to stop their own decreets , after they are pronounced , before extracting , yet sententia definitiva , est ultimus actus judicis , and the extract is but the clerks part , so that it can be no contempt , albeit the judge would not prohibite the extract , and as to the● other member , that the sheriff sat his court an hour before the ordinar time , non relevat , unless he did it of purpose , to anticipat this advocation . the lord● found the first member , of the reason , that the advocation was produced before extract , after sentence , non relevat ; and as to the other member , they found it relevant , as it is circumstantiat , to infer that it was done of purpose to anticipat the advocation , without necessity to prove , otherwayes the purpose , and in that case declared , if the same were proven , they would turn the decreet in a libel . iohn ker contra ker of fernilee and others . eodem die . iohn ker having granted a bond , whereupon he being charged to enter heir to several persons his predecessors , and having renounced , their lands were adjudged , john took assignation to the adjudication himself , and pursues the defenders for exhibition of the rights and evidents of the lands , and delivery thereof . the defender alleadged absolvitor : first , because the pursuit being upon the pursuers own bond , now again assigned to himself , confusione tollitur obligatio . the lords repelled this defense . secondly , absolvitor , because the pursuer can have no interest upon these rights proceeding against him , as appearand heir to these predecessors , and now assigned to him , because there were other appearand heirs , specially condescended on , nearer of blood. the pursuer answered , non relevat , to take away his infeftment , which behoved to be reduced . secondly , non competit to the defenders , unless these nearer appearand heirs , were compearing for their interest . the defender replyed , that the infeftments having obtained no possession , and having proceeded only upon a charge to enter heir , against the pursuer , by collusion : it was competent by exception , seing there was no service , nor possession , nor any thing done that the nearer heirs were oblidged to know , and it was also competent to the defenders , not to deliver the writs to any having no right thereto , they being lyable to deliver them to the nearest heir of the true owner . the lords repelled this defense against the exhibition , reserving it to the delivery , in which they found it competent to the nearer appearing heirs , without reduction . rentoun of lamertoun contra earl of levin and alexander kennedy . july . . john rentoun of lamertoun , as heir to his father , having charged the deceast earl of levin , for the sum of due by him to umquhil lamertoun : the earl suspended upon compensation , by six bonds granted by umquhil lamertoun , to the umquhil countess of levin , four of them to her self ; and after her decease to her daughters , and two of them blank , in the creditors name , which being done stante matrimonio , by this lady , did belong to her husband jure mariti , and not to her or his daughters . these bonds were produced out of the hands of alexander kennedy , sometime master porter of the castle of edinburgh , who declared that he had the foresaid six bonds in trust from the umquhil countess , and the laird of lamertoun , in anno . levin being then captain of the castle of edinburgh , lambertoun constable , and the said alexander , porter , and produced a paper of trust , subscribed by lambertoun and my lady , bearing , that the bonds were put in alexander 's hands , as a faithful person , whom both trusted , to be keeped till after the ladyes death , and then delivered , according to her direction : against which writes , lambertoun raised improbation , and alexander kennedy abode by the same , and the earl of levin declared , he made use of them upon the ground foresaid , in his improbation ; the six bonds being written by alexander kennedy and iames rule who is dead , and the witnesses being george watson , spittel and young , and in some of them alexander himself , all being dead but alexander the producer ; the direct manner of improbation thereof ceassed ; and therefore they proceed to the indirect manner , and give in many articles of improbation , and the earles articles of probation . the relevancy of which being dispute , to quadruplyes in write , and all persons that either parties desired , being examined hinc inde , and their testimonies published to either party , and they having thereupon dispute , both as to the relevancy and probation , in write , and being heard at last viva voce . the lords proceeded to advise the cause . the weight of the whole matter lay in these particulars mainly ; first , for astriction of the writs ; the said paper of trust holding in it , two living witnesses and one dead , being true , the bonds related therein could not be false . this paper could not be improven indirectly , because the direct manner was competent by two living witnesses , whereof the one deponed , that the subscription was like his subscription , as he subscribed at that time , being young , and the third witness being dead , proves . it was answered , that the witnesses insert , proved not ; because comparatione literarum , crawford the defunct's subscription , was altogether unlike his true subscription produced ; learmont sayes his subscription was only like his : and though kill sayes it was his subscription , yet none of them depones to have seen it subscribed by any body , or by any witness , nor to know any thing of the time , place , or truth of the matter contained in the writs , being but an evidence to keep the witnesses in remembrance , either of the matter or of the subscription , of the principal or themselves , albeit they need not be proven here as in england , by the witnesses insert : yet in the case of improbation , if the witnesses prove nothing of the fact or subscription , as remembring that they or the party subscribed , but only deponing that it is their subscription , which can import no more of certain knowledge , then that it is like their subscription , seeing none can swear that it may not be feigned so like that they cannot know it : and albeit that would be sufficient , where nothing is in the contrair ; yet where there is strong presumption in the contrair , as the writ not being in the parties hands , but in the hand of a third party , malae famae , and who hath at least betrayed his trust , never having made these bonds known , till six or seven years after the countess of levins death ; and then offering to sell some of them to others , and with all the paper of trust , the body thereof being written with one hand , and the filling up of the witnesses with another , which no body hath , or can condescend upon , nor are designed therein ; so the same being null by act of parliament , cannot sufficiently astruct the truth of the other bonds , being in themselves suspect . the lords found the paper of trust not sufficiently to astruct , nor the testimonies not to prove it sufficient , in respect of the grounds foresaid being instructed , and the many presumptions against these writs . therefore they improved the said pretended paper of trust. there was further produced for astructing the bonds , two holographs alleadged , written and subscribed by lamertouns owns hand , relative to the bonds and trust ; and for proving these were holograph , they produced a holograph accompt book of lambertouns , and six witnesses , of whom three or four were without exception , and the whole deponed that they truly believed that the holographs were lamertouns hand , and lambertoun and the lady levins subscriptions . the question then was , whether these papers were so proven to be holograph , that they did sufficiently astrict the bonds , notwithstanding all the grounds instructed against them . the lords found negative , upon this consideration , that when the probation of holograph is by witness , who saw the holograph writ , written and subscribed , albeit they be not instruct , it is a full probation , admitting no contrary probation , but when it is only comparatione literarum ; or by witnesses , deponing that they believe , or that positively it is the hand writ of the party , that can import no more , but that it is so like , that it is undecernable for no man who saw it not written , can positively swear with knowledge , that it is impossible to fenzie the hand so like , that it is undecernable , and therefore holograph so proven , admits a stronger contrary probation ; and therefore the lords found that the evidents against the bonds were stronger nor this probation of holograph . there was also produced three contracts betwixt umquhil lambertoun and kennedy at striveling , upon the ninth of august . by the last of them , kennedy was oblieged to deliver lambertoun the bonds for such several sums , he obtaining the lady levins consent , of all these the writer and witnesses were dead , and the date proven to be false . in this process the lords having considered all the indirect articles of the improbation , in respect that these writs in question were never in the alleadged creditors hands ; and that there was not one witness that did depone , that either they remembred to have subscribed any of these writs themselves , or that they saw either the parties , or any other of the witnesses subscribe , or any thing communed , done or acknowledged by either party , contained in the writs , and that the subscription of watson , one of the witnesses in all the bonds , was by comparison with other contraverse writs , about the same time , altogether unlike his subscription , and that the word witnesses adjoyned to the subscription , of all the vvitnesses , did appear to be so like , as written with one hand . they found sufficient ground to improve the foresaids writs , besides many pregnant presumptions from kennedies inclination and carriage ; which being extrinsick were accounted of less value , and yet the astructions aforesaid , and presumptions on that part were so strong , that several of the lords were unclear simply , to find the bonds false , but not authentick probative writs . vvilliam vvachope contra laird of niddrie . iuly . . the said vvilliam vvachope pursues niddrie his brother , to pay him eleven pound sterling for many years , which he promised to pay him by a missive letter produced , bearing , a postscript of that nature . the defender alleadged absolvitor ; first , because the postscript is not subscribed , and so no sufficient instrument to prove . secondly , there is no ground for eleven pound sterling yearly therein , because the words are , i have sent you five pound ten shillings sterling now , and i have sent you five pound ten shillings sterling at vvhitsonday , and you shall have as much as long as you live , if you carry your self as ye do now ; which words , as long as ye live , cannot be understood termly but yearly , nor can relate to both the five pound ten shillings sterling , but only the last , to which is adjected donations , being of strick interpretations . thirdly , the words foresaid cannot import a promise , but only a declaration of the defenders resolution to continue the same free kindness to his brother ; which resolution he may recal at any time . fourthly , the promise is conditional , quamdiu se bene gesserit ; wherefore the defender can be the only interpreter ; and declares , that since his brother hath not carried himself so well , the meaning of such words being only this , if so long as in my opinion you carry your self so , and not according to the opinion of any other . the pursuer to the first defense opponed the letter which is holograph , and albeit the postscript be after the subscription , yet seeing it can have no other construction , then to be done as a part of the letter , and not as other unsubscribed papers , whereanent it is presumed , the vvriter changed his mind and left them imperfect , and unsubscribed , which cannot be here , seeing the letter was sent . to the second , he opponed the terms of the letter● to the third , alleadged omne verbum de ore fideli cadit in debitum ; and by these words , can be understood nothing else , but a promise , which is ordinarly made in such terms . the lords found not the first defense relevant per se , but found the remnant defenses relevant , and assoilzied . vvilliam swintoun contra iuly . . the said vvilliam swintoun having used inhibition against at the cross where he lived , she falls heir thereafter to another person , and immediatly dispones that persons lands , whereupon william raised reduction of that right , ex capite inhibitionis . the defender alleadged absolvitor , because the lands d●poned , ly not within the shire where the inhibition was used : therefore replyed , the land fell to the inhibit person after the inhibition ; and the pursuer did all he was oblieged to do , or could do till that time : which if it was not sufficient , creditors will be at a great loss , as to lands acquired or succeeded in alter inhibitions . the lords found the defense relevant , that the inhibition could not extend to lands in other shires , b●falling to the inhibit after quocunque titulo ; but that the pursuer ought to have inhibit de novo , or published and registrat in that shire , seeing all parties count themselves secure , if no inhibitions be registrat in the shire where the lands ly , without inquiring further . lord frazer contra laird of phillorth . eodem die . the lord frazer pursues declarator of property of the barony of cairnbuilg against the laird of phillorth , as being infeft as heir to his father , who was infeft as heir to his grand-father , who was infeft upon the resignation of frazer of doors ; and also upon the resignation of the laird of pitsligo , who was infeft upon an appryzing led against doors ; and also as being infeft upon an appryzing , at the instance of one henderson , led against doors , and declared that he insisted primo loco , upon the two first rights , flowing from doors and pitsligo . the defender alleadged absolvitor , because the defender in an improbation against the pursuer and his father , obtained certification against doors seasine ; so that it being now improven , all the rights libelled on , falls in consequentiam , because doors is the common author to them all : and if he had no real right , all their rights are a non habente potestatem ; so that now the pursuer has no more in his person , but a disposition made by phillorth's grand-father to doors , and a charter following thereupon , and is in the same case , as if doors upon that ground were craving declarator of property , which he could not do , nor would the lords sustain it , albeit there were no defender ; because that can be no right of property , where there is no seasine . the pursuer answered : . that the defense is no ways relevant , nor is the pursuer in the case of a declarator , upon a disposition or charter without a seasine , because he produces a progress of infeftments , and is not oblieged hoc ordine , to dispute doors his authors rights , as being a non habente potestatem , which is only competent by way of reduction ; some representing doors , his author being called . ly . the defense is no way competent to this defender , unless he alleadge upon a better right then the pursuers ; for the pursuer hath done all that is requisit to instruct his declarator , by production of his infeftments , and his authors rights are presumed , and need not be instructed ; and albeit the defender be called , yet he cannot quarrel the pursuers authors right , or hinder his declarator , unless he alleadge upon a more valide right in his own person . ly . the defense ought to be repelled , as proponed by this defender ; because he represents frazer of phillorth his grand-father , who disponed the lands in question to doors , and was oblieged to infeft him , and did de facto resign in the kings hands , in his favour , and so personally objection , umquhil phillorth , doors author would be for ever excluded from objecting against doors right , which flowed from him ; so neither can the defender who represents him object against the pursuer , who is successor in door 's rights . the defender answered , that being called , albeit he had no right in his person , he might propone a defense upon a nullity in the pursuers right , viz. that it is a non habente potesta●m● which is very competent here by exception . this decla●ator ●eing judicium petitorium , wherein he may well repeat this defense , without necessi●y to call doors , because doors being called in the improbation , all infeftments in his person are improven for not production : and so the reason is instantly verified ; and albeit he were successor to his grand-father ; ( which he denys ) yet he may well alleadge that any right flowing from his grand-father is personal and incompleat , and can be no ground of declarator of property . the lords repelled the defenses , and found it not competent to the defender to quarrel the pursuers authors right , unless he had a better right . skeen contra lumsdean . iuly . . skeen having charged alexander lumsdean , upon a bond granted by mr. thomas lumsdean as principal , and the said alexander as cautioner , he suspends on this reason , that the cause of the bond , was bills of exchange , drawn by verhage upon kezar in camphire , to be payed to skeen , or his order ; which bills skeen ordered to be payed to mr. thomas lumsdean's wife ; and mr. thomas granted the bond charged on for the saids bills ; which bills were protested upon kezar's not paying of the bills , as the protest bears : to which protested bills mr. thomas lumsdean assigned the suspender , and whereupon he now alleadges that he must have allowance of the bills protested , being the cause of the bond , and therefore skeen himself is lyable for the bills which must compence the charger . the pursuer answered , that the reason ought to be repelled , because he offered him to prove , that albeit the bills were protested , for not payment , by kezar , on whom they were drawn ; yet mr. thomas lumsdean having gone back to verhage who drew them , verhage payed mr. thomas , and that before the intimation of the suspenders assignation . ly . that mr. thomas lumsdean being factor in camphire , in his factor book , upon the . page thereof , there are four posts of payment payed by the said verhage to mr. thomas lumsdean , at diverse times , conform to the magistrates of camphire their report , upon the lords commission , bearing that the said factors compt book is authentick and unvitiat ; and that verhage who drew the bills , and kezar upon whom they were drawn , had both sworn before them , that verhage had payed the same to lumsdean , so the question was upon the manner of probation ; whereanent the suspender alleadged , . that compt books not being subscribed , were not probative writs , even against the merchant himself . ly . that at least they cannot prove against the suspender his assigney . ly . that they could be no better then holograph discharges by the cedent , which cannot instruct their own date against the assigney , and so cannot prove the same to have been before the intimation , as for the testimonies of verhage and kezar , their testimonies cannot take away writs and yet are suspected being both debitors for the bills , and that it was not instructed who write the book , whether lumsdean himself , or his ordinar book keeper . the lords found the probation sufficient against the assigney ; the charger also proving that the books were written by lumsdean himself , or by his ●rdinar book-keeper , and thought that the book proved against this assigney , being mr. thomas own brother , and no suspition he would wrong him ; and there being four several posts of payment , in several months , besides the depositions of the foresaids persons . fiddes contra iack : iuly : . fiddes pursues iack for payment of a bond of . merks , which iack acknowledged to have received in custody form fiddes , to be keeped as his own ; iack alleadged that he had but the custody , and did conform to his obligation , he sent the money to dundee , in anno . where he lost both it and much more of his own , at the plunder of dundee . the pursuer answered , no way granting that his money was lost at dundee , yet it ought not to liberat the defender ; because he oft-times required and desired the defender to pay him his money before the plundring of dundee , and seing he did not then give it , it was lost upon the defenders hazard . the defender answered , that any requisition was made , was but verbal without instrument , and that it was made to the defender , being in edinburgh after this money : and the defenders whole means was sent to dundee for safety , and that at the time of any such desire , he shew the pursuer so , and bid him send for it to dundee , when he pleased he should have it . the lords before answer , having ordained witnesses to be examined , hinc inde , and having advised the same , found , that the pursuer did desire his money , and at that same time the defender told him it was at dundee , and said he might have it when the pleased to send for it ; and witnesses also proved that he was at dundee , and was in esteem as a man of good means then , and that he was there a●the plunder of dundee , and ever since was in a poor miserable condition ; and some of them deponed that he had a considerable sum of money , far above this in question there . the question was , whether this probation was sufficient to assoilzie , albeit none of the witnesses did particularly depone , that they knew the pursuers money to have been at dundee , and lost there . t●e lords found that the probation was sufficient , the pursuer giving his oath in supplement , that it was there , and lost there ; for they considered , that at the time of the pursuers requisition , the witnesses proved , the defender declared it was there ; and that ex natura rei , it was hard to prove particularly , this mony being a fungible , to have been lost there , but that it behoved to be presumed so , seing the man lost his whole means there , and hath been poor ever since . montgomery of contra eodem die . mr. william wallace having obtained a disposition of the lands of hagburn from thomas hunter , he gave a back-bond oblieging him to sell the same at the best avail , and as a part of the price to pay a bond of provision to thoma's sisters and brother , granted by their father , and having retained his own sums , and such as he was cautioner for , was oblieged to count for the rest ; and being first pursued before the englishes , and now before the lords , he was decerned to take the lands at sixteen years purchase , and a half , and to count accordingly , it was alleadged ; he could not have allowance of the sums payed to the brother and sister , because these could not exclude lawful creditors . it was answered for mr. william , he had payed bona fide a part , and had given bond for the rest , and could not now be called in question . it was answered , he was in mala fide , because the payment was made after intenting of the reduction against his right , at the pursuers authors instance . mr. william answered non relevat , unless there had been a reason libelled in that reduction against these bonds . the pursuer answered it was sufficient , that reduction was used against the whole right , to which any reason might be added . the lords found this alleadgence not relevent to put mr. william in mala fide , unless there had been a special reason of reduction filled up , and shown to mr. william against these bonds particularly . margaret anderson and iohn elphingstoun contra mary wachop . iuly . . margaret anderson and iohn elphingstoun , as heir to anderson , who were the two daughters of umquhil mr. david anderson of hills , pursues mary wachop his relict and executrix , to fulfil an article of his contract of marriage , bearing , that if there were no heirs-male of the marriage , he band and oblieged him and his heirs-male and successors whatsomever , to pay to the daughters of the marriage . merks , and craved that the executrix as representing their father , might pay the same . the defender alleadged absolvitor , because it is clear by the clausses of the contract , that the father did not bind himself simply , or himself and his heirs , but that he bound only himself and his heirs-male , which is the more clear that the narrative of that clause bears , because his estate is provided to his heirs-male . the pursuer answered , he opponed the clause , by which he did not only obliege his heirs-male , but himself and his heirs-male ; and so in oblieging himself , he hath oblieged all that represent him , and he might have been pursued in his own lifetime , if his daughters had come to the age appointed by the provision . ly . he has not only oblieged himself and his heirs-male , but his successors whatsomever , and therefore his executors . the lords found that by the tenor of the clause , and narrative thereof , the defuncts meaning was chiefly to obliege his heir-male , and albeit successors whatsomever was added ; yet by the narrative and the order of the words , they found the heir-male was first burdened , and behoved first to be discussed . therefore ordained the defender to condescend what the heir-male had to succeed to , and if he was not entered heir-male , and had nothing to succeed to as heir-male , they thought the defender would be lyable . william montgomery contra theoder montgomery . eodem die . william montgomery as donator to the escheat of theoder montgomery● pursues a general and special declarator in on libel ; and insists , first , in the general . the defender alleadges absolvitor , because the horning is null , the denunciation being at the cross of edinburgh where the defender had not his domicile . the pursuer opponed the horning standing , bearing , the defender to dwell in edinburgh , and the horning could not be taken away by exception , alibi , not instantly veryfied . the lords repelled the defense but prejudice of reduction thereupon . secondly , absolvitor from the rents and duties of the lands of whyteslaid in time coming , because these fell not under single escheat . it was replyed , the defense ought to be repelled , because the jus mariti , falls under single escheat of the husband , and carrys with it per consequence the liferent of the wife . the lords was clear that the repl● was relevant ; but the defense not being competent , in the general declarator , which was first insisted in , they give no interlocutor on the reply . lord frazer contra phillorth . iuly . . in the declarator of property of the barony of cairnbulg , at the instance of the lord frazer , against the laird of phillorth . it was alleadged for the defender absolvitor , because the pursuers father and grand fathers infeftment is upon the resignation of frazer of doors , ita est , frazer of doors had no real right in his person , never having been seased , at least there is certification granted against doors seasin , in the improbation at the i●stance of the defender , against the pursuer and his father ; so that doors having no reall right , his disposition , instrument of resignation , and c●arter granted by the king , flowing upon the resignation of the laird of phillorth and the lord lovit , who had right to pttsligo's appryzing , of the hail estate of phillorth , can give no right to declare the property , especially against the defenders , who hath a real right by infeftment , flowing from phillorth his goodsyre , by resignation , and flowing from the lord lovit , which albeit posterior , yet having the first infeftment , is the first and only right . the pursuer answered , the defense ought to be repelled , because any right the defender hath , is from his own grand-father , to whom he was alioqui successurus ; and thereby the defender is successor titulo lucrativo , to his grand-father , the common author , after the disposition granted to doors , and as umquhil phillorth doors author , personali objectione would be excluded from opposing doors right of property ; which right he had disponed to doors● and was oblieged to warrand ; no more can the defender , ( who by this same right he defends , being successor lucrative to his grand-father ) be heard to exclude the pursuer , who is successor to doors . ly . albeit there be no seasine , yet umquhil phillorth and lovit were fully denuded in favours of doors , by the resignation made in the kings hands , and charter conform , after which any right granted by them to this defender , is a non ha●ente potestatem . ly . any right the defender hath flowing from the lord lovit cannot defend him , because it was but an appryzing against phillorth the common author : and it is offered to be proven that the appryzing was satisfied within the legal , in so far as the lands of innernorth were disponed by phillorth and lovit joyntly , to frazer of doors for . merks , and the lands of innerallothy were disponed by them to lovits own sons , irredeemable the price of which lands being . merks , was the sum appointed for satisfaction of the appryzing betwixt the saids parties , and so as to the lands of cairnbulg , and remnant lands appryzed , the appryzing is extinct . the defender answered to the first , that he is not successor titulo lucrativo to his goodsyre , because the time of the disposition by his goodsyre to him , and also the time of his goodsyres death , his father was alive , and served heir to his goodsyre . ly . there was no right in his goodsyre when he disponed ; but all the right was in the lord lovit by pits●igoes appryzing ; neither was lovit denuded by the resignation or charter without seasine , so but that the second resignation with the first infeftment is preferable . ly . satisfaction of the appryzing as it is alleadged , is not relevant , unless it be by intromission with the mails and duties of the lands appryzed , conform to the act of parliament . but no other payment or satisfaction by the debitor is sufficient to take away an infeftment , contra singularem successurum . the lords repelled the defense , founded upon lovits appryzing , in respect of the reply of satisfaction thereof , and found no necessity to alleadge , that the person having right to the appryzing , was otherways denuded , the by acknowledgement of payment or satisfaction , and that there needed no form●● grant ●f redemption or renunciation , registrat conform to the act of parliam●n anent the registration of seasings , reversions , &c. w●ich the lords found only to extend to wodsets , properly so called , and not to appry●zings ; neither yet to an infeftment for relief , whereunto the rents were not to be only for the annualrent of the sum , but to satisfie the principal , and therefore seing the lords found that the only right was in the defenders grand-father , and that he disponed to the defender , that he could be in no better case then his grand-father , as to the disposition granted by his grand-father without a cause onerous , being after the disposition of the same lands , by that same grand-father to the pursuers author , but found it not necessar to determine the case of lucrative successor , as it was here stated to make the successor lyable to all his predecessors debts : iames birsbine contra iohn monteith . iuly . . james birsbine pursues iohn monteith , as cautioner for iohn birsbine , who was executor to the pursuers father , for payment of the pursuers legacy . the defender alleadged no processe , because the executor himself is not discussed , and the cautioner is only lyable subsidiary : the pursuer replyed , there is a decreet obtained against the executor produced , and there was no further discussing requisite , because he is broken , and the pursuer is content to assign the debt to the cautioner . the defender answered non relevat , for a decreet is no sufficient discussing , but there must be registrat horning at least , albeit the executor had neither lands nor moveables to poind or apprise . the lords sustained the defense , and found the reply not relevant , till the registrate horning were produced . alexander shed contra robert gordon and david kill . eodem die . alexander shed pursues robert gordon pupil , as lawfully charged to enter heir to his father , to pay a debt of his fathers , compears david kill the pupils uncle , who was tutor nominat to him , but refused to accept , and therefore shunned to propone any defense in the pupils own name● least it should be an acceptance , or gestio ; and therefore produced a bond of the defuncts , and as creditor alleadged that he would not suffer his debitors estate to be affected in his prejudice , and offered him to prove , that the debt pursued on was satisfied . the question was , whether he had interest as creditor to propone this defense . the lords having considered the case amongst themselves , found that where creditors in this manner compeared , it is not cnmpetent to allow their defense , because it may delay the other creditors pursuing , so that a third creditor may be preferred in diligence ; and therefore they repelled the defense hoc loco , but declared that it should be receivable against the pursuer , whenever he should pursue for affecting any of the defuncts means or estate , in the same case as now . mr. patrick weyms contra mr. iames cunninghame . eodem die . mr. patrick weyms having an order of parliament for a terms vacant stipend of the paroch of leswade , mr. iames cunninghame alleadged that terms stipend was not vacand , but belonged to him as incumbent , viz. whitsonday . because he was admitted before michalmess , and shortly after whitsonday ; and so the legal terms of stipends not being divisable at two terms , but at michalmess joyntly , he being incumbent before michalmess , hath the whole year . the lords repelled this alleadgence , but preferred weyms , and found that ministers had right to their stipend termly , and if he entered before whitsonday , he had right to the whole year , and if after vvhitsonday , and before michalmess , but to the half : barbara naesmith . contra iohn iaffray . iuly . . barbara naesmith pursues iohn iaffray her son , as heir and executor to his father , for payment to her of her umquhil husbands hail means and eschaeat , by vertue of a missive letter , written by the defunct her sponse , bearing , that if he happen to die before his return , that his vvife should do with what he had as she pleased , that he thought it too little for her ; but he desired her to discharge a . pounds or a . merks to his brother alexander , and . merks to his sister magdalen , if she follow her advice . the lords having formerly found , that this letter was donatio mortis causa , or a legacy , and so could only affect deads part . it was now further alleadged , that by the pursuers contract of marriage , he was oblieged to imploy . merks on land , or annualrent to him and her , and the longest liver of them two , and to the bairns to be gotten betwixt them , which failzing his heirs . this obliegement to imploy being a debt , the moveables must be lyable for it primo loco , and the pursuer can only have deads part of the remainder of free goods . the pursuer answered , that this destination being on heretable clauses , cannot affect the moveables , ly . the bairns cannot have right thereto till they be heirs , and so they will be both debitors and creditors , and the obligation will be taken away by confusion . the lords found this defense relevant notwithstanding of the answer ; and that albeit the clause was heretable , quoad creditorem , yet it was moveable quoad debitorem , and so behoved to be performed out of the defuncts moveables , and that the entring thereto , would not take away the obliegement by confusion● more then one paying a moveable debt , wherein he is both debitor and creditor ; yet he will have action of relief against the executors out of the moveables . it was further alleadged , that in the said missive there are two particular legacies left to the defuncts brother and sisters , which must abate the general legacy . the pursuer answered , that both legacies were only left thus , i wish , &c. which cannot be obligator , nor constitute an effectual legacy ; but is only a desire or recommendation left in the pursuers option : and for magdalens legacy , it was conditional , the following the pursuers advice , which she did not , but left her contrair her will. the defenders answered , that verba optativa were sufficient in legacies , at least were sufficient to make a fidi commissari legacy ; because all fidi commissis , either for restoring the inheritance , or for restoring legacies , in the civil law were in such terms ; and albeit such words would not be sufficient , intor vivos , yet favore ultimo voluntatis , where the defuncts will , howsoever manifested , is the rule , and so is most extended , such words are sufficient , as to the condition in magdalens legacy , it cannot be understood of being under the pursuers command all her life , and so can only be meaned , if magdalen miscarry contrair to the pursuers advice , in some considerable matter of her carriage ; and however , it is not a suspensitive condition , hindring the payment of the legacy , but oblieging the legatar thereafter . the lords found the legacies constitute , and in terms for said valid ; and as for magdalens legacy , declared , that in case magdalen miscarried , and took not the pursuers advice , that she should be lyable to refound the legacy to the pursuer , but would not put her to find caution for that effect , the condition being so general . katharin kinross contra the laird of hunthill . the laird of hunthill being oblieged by bond to pay a sum to umquhil mr. beverly , and the said katharin his spouse the longest liver of them two in conjunct-fee , and the heirs betwixt them , which failzing his heirs , or any person he should design , whereupon they were infeft in an annualrent . the said katharin having charged for payment of the sum , hunthill suspended alleadging that she was but liferenter , and he could never be in tuto till the feear were called . the lords formerly found the letters orderly proceeded for the annualrent , but superceeded to give answer for the stock , till some to represent beverly , the feear were called , who now being called and not compearing , he debitor alleadged he could not be lyable to give up the stock to the charger , being only liferenter , neither would her discharge , or renunciation of the wodset liberat him and his estate , but only a renunciation of the heir ; neither did the charge at the liferenters instance , take away the annualrent , and make the principal sum moveable , unless it had been at the feears instance . the charger answered , that she being conjunct-feear , was not a naked liferenter , albeit it resolved in a liferent ; and therefore she craved that it should be declared by the lords , that she had power to uplift the stock , and to reimploy it as formerly , and that her discharge and renunciation should be declared to be sufficient to liberat the debitor and his lands , which being so found by the lords . the debitor's appearing heir being called , would be an irreduceable and sufficient ground of liberation . the lords declared as aforesaid , but before extract , ordained the conjunct-feear to give bond for reimployment of the sum to her self in liferent , and to beverly's heirs in fee ; which bond they ornained to be presently registrat , and kept by the clerk , in respect none appeared for the heir . lady milntoun contra laird of milntoun . iuly . . lady milntoun pursues probation of the tenor of a bond of interdiction , granted by her husband young calderwood , interdicting himself to her . it was alleadged no process , because there was no sufficient adminicles in writ produced , there being no writ relative to the interdiction subscribed by the party , but only the extract of letters of inhibition . the lords sustained this as a sufficient adminicle , in respect the question was not about a writ that use to be retired , such as bonds . in this case also , the lords examined some witnesses , ex officio , before litiscontestation , being old and valitudinary . margaret robertson contra william mcintosh . eodem die . margaret robertson pursues an ejection against william mcintosh , who alleadged absolvitor , because he offered him to prove , that he had warned the defenders umquhile husband , and that he dying shortly thereafter , he inquired of his wife , if she would continue in the possession , and she declared she would not , but willingly removed . it was replyed , relevat scripto vel juramento ; but witnesses cannot be received to prove willingness of removing , being mentis . the lords considering that the defender alleadged no tack nor title in writ , but meer possession were inclinable to sustain the defense probable pro ut de jure ; but withall considering the parties were highlanders , and had great advantage , whoever had the benefite of probation ; therefore they ordained the pursuer to condescend what deeds of violence was done in ejecting her ; and both parties to conscend what persons were present at the pursuers outgoing , and the defenders incoming , being resolved to examine all these before answer , so that there might be no advantage in probation to either party . sir john aiton contra adam wat. eodem die . adam wat being first infeft in an annualrent out of whitlands estate , compryzed for some of the bygone annualrents . sir iohn aiton being infeft after him in an annualrent of the same lands , alleadges that adam hinders him to uplift the duties , or poynd the ground for his annualrent , and yet lets them ly in the common debtor , or tennents hands until his appryzing expire , and therefore alleadges that adam wat ought either to intromit , and do exact diligence , and impute the same in his compryzing , or suffer sir iohn to do diligence , or at least , that both may do diligence effeiring to their sums . the lords found that adam wat ought to be lyable for diligence in time coming , in uplifting the rents to satisfie his appryzing ; and as to the annualrent , found , that after days after each term , in which adam , as the first annualrenter , might poynd the ground ; it should be leisom for sir iohn , as the second annualrenter , to poynd the same , without respect to adam wats prior infeftment , if he did not diligence thereon , within days after ilk term. alexander hamiltoun contra thomas harper . iuly . . alexander hamiltoun pursues a removing against thomas harper , who alleadged absolvitor , because the pursuer invaded and beat the defender , in the session-house , during the dependence of this cause ; and therefore by the act of parliament . cap. . renewed , . cap. . the pursuer cadit causa , and the defender must be assoilzied . the lords having considered the saids acts of parliament , and finding thereby that the invasion must be cognosced in a criminal process , competent to the justice , and must be found summarly by an inquest . the question was , whether beating without effusion of blood , was such a criminal fact ? because it seems to be but a ryot : and next whether the lords would take probation of it themselves , or if it behoved to be recognosced by the justices . the lords found the defense relevant , for the act of parliament anent violence in the kings presence , or in the session house , when the session is sitting , make such deads to incur death : and therefore whether they would assign a term to the defender to prove , that in the mean time he might proceed criminally , before the iustice , and instruct the defense by the sentence of the iustice , or whether they would receive the probation themselves , they resolved to hear the p●rties upon it . laird balnagoun contra iuly . . the laird of balnaggoun having obtained a gift of ultmus haeres , of thomas from the exchequer , in anno . and being thereupon infeft , pursues removing against rorie the defender alleadged absolvitor , because the defender stands infeft , and by vertue of his infeftment in possession . years before the warning , by vertue of a gift of ultimus haeres , granted by the english exchequer . the pursuer answered , ought to be repelled , because the foresaid gift is null , ipso jure , in so far as it is not confirmed by the late act of parliament , anent judicial proceedings in the usurpers time , wherein gifts of bastardy and ultimus haeres were excepted . the defendet answered , . that his infeftment being cled with . years possession , cannot be taken away by exception , neither is he oblieged in hoc judicio possessorio , to dispute the validity thereof . ly . the said act of parliament doth not declare it null , much less null by exception , such gifts but doth only not confirm them . the lords repelled this defense , and found the infeftment null in it self , seing it was not confirmed . the defender further alleadged absolvitor from this warning , because the pursuers gift is not yet decalred . it was answered for the pursuer , no necessity of declarator , because it cannot be ever made appear that any such thing was required , or was in custom and use , more then in the case of a gift of ward , or a gift of forefaultry . the lords found that this gift behoved to be declared in the same way as a gift of bastardry . william zeoman contra mr patrick oliphant . william zeoman as having right by an appryzing to the lands of newton , pursues mr. patrick oliphant , to hear and see it found and declared this his appryzing was satisfied , by intromission with the mails and duties within the legal . the defender alleadged , appryzing cannot be satisfied by his intromission , because any intromission he had was by vertue of other rights , viz. mr. iames oliphant the common author , having killed his own mother , and thereupon he being declared fugitive , not only upon the paricide , but upon a criminal dittie against● him , upon committing murder under trust , which is treason . the defender obtained gift of his forefaultry , and thereupon stands infeft and in possession . the pursuer answered , non relevat , 〈◊〉 because the act of parliament against paricide , doth not declare it to infer forefaultry , but only that the committer thereof should be excluded from succession : and as to the committing of slaughter under trust , the act of parliament expresseth what it meaned by trust , viz. though getting assurance from persons that had been formerly in variance . ly . vvhat ever the cause were , yet the infeftment upon the gift of forefaultry , cannot be respected● unless there had been a doom of forefaultry pronunced for all , that the justice general does , is to charge the party accused to find caution to underly the law , and if he appear not he is denunced rebel , and his escheat only falls , or if having found caution , he appear not in causa , he is denunced fugitive , which hath the same effect , but none of them can inter forfaulture , unless doom of forfaulture had been pronounced , which the justice doth not , but when the defender compears ; albeit the parliament forefaults persons absent , having taken probation of the libel contra absentes , and unless the justice had either cited the party with letters of treason , under certification of treason , and that certification had been granted , or had cognosced the crime . the defender being present , the gift of forfaulture can work nothing . the lords found the reply relevant , unless the defender would alleadge as aforesaid , because the defender was not clear in the matter of fact , they before answer , ordained him to produce the gift and warrands . creditors of andrew bryson contra his son. november . . in an accompt and reckoning betwixt the creditors and bairns of umquhil andrew bryson , the auditor being warranted to call all parties , havers of the said umquhil andrew his compt books before him , his son mr. andrew being called and examined upon oath , depones that he neither has them , nor had them since the intenting of the cause , but refused to depone upon his having of the same at any time before , or upon his knowledge who had them . the lords having heard the auditors report thereanent , found that he ought not to be examined upon his knowledge , who had them , but that he ought to depone●f at any time before the citation he had the same , and frandfully put the same away , quia propossessoria habetur qui dolo possidere . mr. thomas nicolson contra lairds of bightie and babirnie . eodem die . there having been mutual molestations betwixt mr. thomas nicolson advocat and the lairds of bightie and babirnie , anent a common pasturage in the muire of bighty , lying contigue to all their lands . it was alleadged for babirny that he ought to be preferred to mr. thomas nicolson , and the said mr. thomas excluded from all commonty , because babirny stands infeft in the lands of babirny , which infeftment bears , with common pasturage in the muir of bighty , and mr. thomas had no express infeftment therein . it was answered for mr. thomas , that the alleadgence is not relevant to exclude him , because he , his predecessors and authors , are , and have been infeft in his lands cum communi pastura , and by vertue of the saids infeftments , in peaceable possession immemorially ; or by the space of years , which was sufficient to establish the right of communitie with balbirnie , notwithstanding his infeftment bears express . it was answered for balbirnie , that not only was his infeftment more express ; but mr. thomas lands and his were holden of divers superiours , viz. balbirnie of the king , and mr. thomas were kirk-lands ; and albeit the muire lyes contigue to mr. thomas lands , yet it is not of the same paroch . the lords repelled the reasons of preference for balbirnie in respect of the answer . it was further alleadged for balbirnie , that the alleadgeances and answers for mr. thomas nicolson ought to be repelled ; because he offers him to prove , that nicolson was interrupted since the year . and condescended , by yearly turning his cattel off the ground , and stopping him from casting peits ; and therefore he must say years possession , by vertue of an infeftment preceeding that interruption . it was answered for nicolson , non relevat , unlesse either a legal interruption by lawborres , or summons ; or at least a compleat and full interruptio facti , by debarring him on whole year from any deed of community , but for turning off his goods , which were presently put on again , and he enjoying all his profit , such were attempts , and incompleat interruptions , whereof he needed take no notice thereof , seing he continued his possession , otherwayes there would be great inconveniences by such interruptions , which would be noticed by the leidges , and yet would cut off the probation of the old possession before the same . the lords found that whatsoever the interruption , years , or immemoria possessione before the interruption behoved to be proven , for they thought that what servituds were introduced only by possession , by the patience and presumed will of the other partie , being either proprietar , or having right of communitie , any interruption was sufficient to show , that the other party willed not , nor consented not to the right ; and if by such interruptions parties got wrong , it was their own fault , who did not either declare their right , or insist in a molestation debito tempore , or use mutual interruptions ; but here it was considered , that possession before the year . would be equivalent to immemorial possession , albeit the witnesses were not positive , upon . years possession before , in respect the years were . years since . children of wolmet contra dowglas and cuningham . november . . in a persuit at the instance of the children of wolmet for the profit of the coal of wolmet , intrometted with by the said iean dowglas lady wolmet in her viduity , by vertue of a tack of the coal granted by umqhile wolmet to his children for their portions , it was alleadged for the defender . first , absolvitor , because the said iean had right to the said profit of the said coal , ever since her husbands death , by vertue of the wodset of the lands and coals of wolmet granted by umquhile patrick edmonstcun of wolmet , to iames loch , wherein there is a back-tack of the land and coal set to the said umquhile wolmet , and the said iean his spouse , for the annualrent of the money . it was replyed for the pursuer , that the foresaid back-tack was taken by wolmet stante matrimonio , and so was donatio inter uirum & uxorem null in it self , nisi morte confirmetur , and was confirmed by wolmets death , but revocked by the pursuers tack granted to his children after the said back-tack . it was answered for the pursuers , that the reply ought to be repelled , because the back-tack was no donation , but a permutation , in so far as the lady by her contract of marriage was infeft in the half of the lands of wolmet ; which infeftment she renounced in favours of iames loch , at the taking of the wodset , and in lieu thereof , she got this back-tack , which therefore can be no donation , which must be gra●u●tus without a cause onerous . it was replyed by the pursuers , that the duply is not relevant ; for albeit it be not a pure donation , yet quoad excessum the superplus of the benefit of the back-tack above the benefit of the contract of marriage is gratitude , and a donation , and the reason of the law against donations betwixt man and wife being mutuo amore se spolient , it holds in it , and it would be easie to allude the intent of that good law , if donations contrived under the way of permutation without any real equalitie were allowable . it was answered for the defender , that the duply stands relevant , and the superplus of a permutation cannot be called a donation more then the benefit of an advantagious vendition : it is true , that if the donation of the back-tack had been ex intervallo , after the ladies renounciation , it would have been vincus contractus . but two distinct donations , or if the matter exchanged had been aliquid ejusdem specei , as an annualrent of merk with an annualrent of a lib. the superplus would have been a donation ; or if the lady had received a notable excess above the half , yea , above the third of what she quat , it might have been revocable by her husband , she being reponed to her first condition , by her contract of marriage , but here there is no such exorbitant excess , she having quat a certain land rent for the profit of a coal , which is most uncertain , for the hail land rent would not pay the back-tack , and it is now wodset , and likewise she is personally lyable for the back-tack dutie . the lords repelled the defense , and duply , in respect of the reply and triply ; and found the excess so considerable in this case , that it was as a donation , and was revocked by the childrens tack , but found that before the defender made payment of what should be found due by this accompt she should be reponed and put in statu quo prius , by her contract of marriage . it was further alleadged for the defender , absolvitor , because that albeit her right by the back-tack were revocked by the childrens tack , yet she is bona fide possessor , & fecit fructus consumptos suos , according to the law of this kingdom , and of most of other nations necessarily introduced , for the good and quiet of the people , because as to and profits , they spend as they have , and therefore what they spend bona fide by a colourable title ; they are secured in that , albeit their title be taken away ; yet they shall not be called in question for what they have injoyed bona fide before sentence , or citation . it was answered , for the pursuers , that the defense was not relevant in that case , where the question is not of industrial fruit , but of natural fruit , such as coal . secondly , it is not relevant , unless it were cum titulo not ipso jure null , but here the defenders title being a donation betwixt man and wife , is by the civil law , which herein we follow null in se nisi morte confirmetur . thirdly , there must be bona fides which is not here ; because it is instructed by a minute of a contract produced within five moneths before the childrens tack , that the lady consented to the providing of the children by the profit of the coal , and she cannot be presumed ignorant of so domestick an affair in favour of her own children done by her husband , and she hath given up an article in her accompt of the expense of registrating the childrens tack ; by her self , and so she must be presumed to have possessed as protutrix for her children , and not to defraud or exclude them . it was answered , for the defender , that the defense stands yet relevant , and the law makes no difference betwixt industrial and natural fruits , he who possesses lands bona fide is no more comptable for the grass that growes of it self , nor for the corn that he labours for . . and coal is an industrial fruit , having as much pains and expense as corns , and other industrial fruit , and more uncertainty : as to the title albeit be valid , yet sufficit coloratus vel●putativus titulus , and albeit in the antient roman law , such donations were null in se nisi confirmentur morte yet by the subsequent course of the law , per ora●ionem antonij they are declared valid in themselves , unless they be revocked , and therefore are not null , but anullantur medio facto , and there are many nullities , which may consist with a colourable title , ad hunc affectum lucrari fructus consumptus , as if the nulitie be not ex defectu substantialium , but by defect of some solemnity , as the not registration of a seasine will not make it so null , but that possessor bona fide thereby will imploy the fruits , but if it want tradition of the symble , it will be null in se , but here such donations have all there essentials , but they are only anullable by a subsequent fact ; and as to the evidence , that the lady was in mala fide ; they are no wayes sufficient , by her consent that the children should be provided with the coal , was in contemplation of her eldest sons marriage , which took no effect , and the rest are meire presumptions , and dato she had known privata notitia non nocet , unlesse there had been some intimation , citation or judicial act to put her in mala fide ; and especially private knowledge infers not mala fide , unless it had been anterior to her possession . the pursuer answered to the last point , that albeit private knowledge in some cases would not infer mala fides among strangers , yet a mother knowing the right of her own children , whereof one were in her womb , it puts her in mala fide , seing she was thereby oblidged to have sought tutors , and preserved their right . the lords found the evidences sufficient to prove the defender to have been in mala fide , and therefore repelled this defense also , and ordained the defender to comp for the intromission , but found that the charge ought not to be stated according as the profit of the coal fell out to be , but as the profit thereof might be communibus annis , in regard she quat her certain li●erent of the lands for an uncertain coal , and therefore abated a fourth part of what the free profit of the coal was found to be by the last accompt . alison wardlaw contra robert gray . eodem die . allison wardlaw , as executrix creditrix confirmed to her husband , and having confirmed the rents due to him by robert gray pursuer therefore . the said robert alleadged absolvitor , for a part of these rents , because payed , which he offered to prove by the defuncts compt-book in the pursuers hands , which compt-book is written with the defuncts own hand , and bears several recepts payed by the defender at several times . the pursuer alleadged , that the compt-book cannot prove , because it wants a subscription , and compt-books do only prove contra scribentem , in the case of merchants , who keeped exact current compt-books , which is a special priviledge of theirs , and was never extended to any other case , nor to any other person , for a discharge subscribed before witnesses would not liberat , if it were not delivered to the other partie , much less can a compt-book , secondly , whatever it could work against the writter and his heirs , yet not against assigneys or executors creditors , who are in effect singular successors for their own payment , otherwayes no assigney could be secure , but after the assignation , the cedent might write receits in his book ; but though he should grant a holograph discharge bearing date● before the assignation , it would not prove against the assigney , the defender answered , that the compt-book was sufficient to prove liberation , being by a judicious person , though not a merchant , for it could be done to no other intent , then to preserve the memory of the payment made , which though most ordinar amongst merchants , is no special priviledge of theirs , and albeit an undelivered discharge would not be sufficient , yet that being but unicum hirographum , requiring delivery , hath no effect without delivery , but a compt-book contains many writs , and requires no delivery , and albeit it should not prove against an assigny . as neither would an holograph discharge , yet it is sufficient against an executor creditor , who can leave no right till the defunct be dead , and so their can be no hazard of recepts posterior to their right , and therefore against creditor , holograph discharge would prove . the lords found that the alleadgeance of the compt-book written with the defuncts own hand sufficient to instruct payment , of the articles mentioned therein , but seing the defender who payed was on life , and present , ordained him to make faith that he truely payed accordingly . primrose contra duij . november . . primrose having pursued a reduction of a decreet arbitral betwixt him and duij . the said duij alleadged homologation of the decreet , by acceptance and payment of a precept direct to him by primrose , for payment of a part of the sum contained in the decreet ; bearing expresly to be in satisfaction of a part of the decreet , which was found relevant , and admitted to duij's probation , for proving whereof , duij produced the precept acceptance and discharge . it was alleadged , that the writs produced proved not to the homologation of the decreet , as to the article controverted , being the fraught of a vessel ; which duij offered to prove , to have been decerned to have been within the third part of the just avail , and the precept bare payment of five dollars , decerned for the deterioration of the tackling , by vertue of a promise . the lords having considered the decreet arbitrall , and precept , found it proved not the homologation , as to the point in question , because the decreet contained divers heads . the precept bare to pay the deterioration of the tackling , and bare expresly , that the same was uncon●raverse , and founded upon the defenders promise . sawer contra rutherfoord november . . sawer having wodset some tenements in edinburgh , to rutherfoord , wherein there was a clause irritant , bearing , that if sawer did not put rutherfoord in possession of the hail tenement , the reversion should expire , whereupon rutherfoord obtained declarator , of the expyring of the reversion , because sawer had detained a part of the tenement , sawer raised suspension and reduction of the decreet of declarator , upon these reasons . first , the clause irritant was punctum legis commissaria in reprobat in law. secondly , because , by the act of parliament . betwixt debitor and creditor , it was declared , that claules irritant● for not payment of the sums in wodsets since . should not be effectual . the defender answered to the first reason , that by act of sederunt of the lords , in anno . clauses irritant , and failzies were declared effectual ; and albeit the lords ex gratia , are in use to suffer parties failzeing to purge the failzie , by satisfying damnage and interest at the barr ; yet it could not now be received a decreet in foro contradictorio . to the second reason ; it was answered , that the said act of parliament was special , in relation to clauses irritant , for not payment of the sum in the wodset , which was stricti juris , and could not be extended to this wilful failzie , in the pursuers not removing , and possessing him , and for the decreet it was in absence , albeit a supplication was given in after the decreet , desiring to be heard , whereupon he was not heard , but the answer to the suplication bare , that his desire was only competent , by way of susppension and reduction . the lords found the decreet not to be in foro contradictorio ; and therefore reponed the pursuer to purge the failzie , by possessing the defender , and paying damnage ; but found that the clause in the act of parliament reached not to this case , but whereas the pursuer craved compt and reckoning of the profits of the wodset tenement , by the said act of parliament bearing , that improper wodsets , where the granter of the wodset , is in the hazard of publick burden , &c. being since . the wodsetter should be comptable for the profits more nor the annualrents , since the date of the wodset . the lords having considered the woodset , by which the wodsetter bare the publick burden , found the said clause of the act not extended , to make the defender comptable since the date of the wodset , but only since the date of the offer , to secure the wodseter conform to the act of parliament , by vertue of an other clauses of the said act , ordaining all wodsetters to compt for the superplus , and to possesse the granter of the wodset , he finding caution for the annualrents , or to restrict to his annualrent . lord burghly contra iohn syme . eodem die . lord burghly , and his authors , being infeft by the abbot of dumfermling , in the coal-heugh of keltie , with power to win coals within the bounds of the lands of cocklaw and losodie ; pursues john sime heretor of losodie , for declaring his right to win coal in losodie . the defender alleadged absolvitor , because he and his authors were infeft in the lands of losodie , with the pertinents , above the ground , and under the ground , long before the pursuers authors right . the pursuer answered , that the defenders infeftment could not furnish him right to the coal of losodie ; because it bare no power to win coal , but being only a feu , which is a perpetual location , it reaches not to coal , not being expressed : especially , seing in the tenendas all the ordinary priviledges were exprest , even of peit and turff , and coal was omitted , and because the defenders chartor bare expresly a reservation to the abbot , and his successors , to win coal in losodie , for their own proper use allenarly . the defender answered , that the right of the land being feu , with the pertinents , did extend to coal , albeit not exprest , seing it was not wholly observed ; according to craigs opinion , and for the reservation , it did further clear the defenders right , that seing the abbot reserved only power to win coal for his own use , exceptio firma● regulam in non exceptis , whereby the defender had right to the remanent of the coal , neither could the exception extend to the pursuer , but only to the abbot , and give to his successors only , to these succeeding in the abbacy , viz. the earl of dumfermling . the pursuer answered , that the defenders infeftment was confirmed long after the pursuers , and that the defenders confirmation was not of the first feu , but of a second right , from the first feuar , and by the act of parliament anent feus , it was declared , that feus since march . not confirmed by the king , before . were ●ull , at least another act of parliament bare expresly , that where there were divers feus granted of the same thing , the first , confirmation with the last feu , should be preferable . the lords found the defense founded upon the defenders rights , relevant , and proven thereby ; and therefore found the pursuer had only right to win coals in losodie , for his own use , and found the pursuer successor to the abbots by his infefments of the said priviledge of wining coal in losodie , for his own use only , and found the saids acts of parliament , that by the late act ; the right of the ancient possessors , and kindly tenents was reserved ; so that if they did not confirm before the year . they were only lyable for a greater feu-dutie , wherein the pursuer not being superiour , had no interest , and found the defenders infeftment , that his authors were kindly tenents , and had a year tack before the feu . patrick and joseph dowglasses contra lindsay of vvormistoun . december . . patrick and joseph dowglasses pursues catharine lindsay their mother , as executrix to their father , for compt and payment of their share of the executry , and also the said lindsay of vvormistoun , as her cautioner found in the testament , who alleadged no process against him as cautioner , till the executrix her self were first discussed ; not only by compt and sentence , but also by appryzing of her estate , poynding of her moveables , and if nothing can be condescended upon to poynd and appryze , at least by registrate horning against her person : this being but a subsidiary action as to the cautioner . the lords repelled the alleadgeance , and sustained the accompt , against both , superceeding all execution against the cautioner , till the executrix were discussed as aforesaid , which is both to the advantage of the cautioner , who may concur with the executor , who is only able to make the accompt , and it is also to the advantage of the pursuers , that the cautioner resume not the alleadgeances omitted by the executor , and so make new process , and new probation , as oft falls out . dam marion clerk. contra iames clerk of pittencrieff . eodem die . mr. alexander clerk , his estate being tailzied to his heirs male , he obliged his heirs of line to renunce , and resign the same in favours of his heirs male ; which disposition he burdened with . pounds , to dam marion clerk his only daughter , and heir of line . the clause bare . pounds to be payed to her out of the saids lands and tenement , whereupon she having obtained decreet , james clerk the heir male suspends on this reason , that the foresaid clause did not personally oblige him , but was only a real burden upon the lands and tenement , which he was content should be affected therewith , and offered to assign and dispone so much of the tenement as would satisfie the same . the lords found the suspender personally obliged , but only in so far as the value of the tenement might extend ; in respect the clause in the disposition mentioned the sum to be payed , which imports a personal obligement , and whereby the suspender accepting the disposition , is obliged to do diligence , to have sold the tenement and payed her therewith ; and therefore found the letters orderly proceeded , superceeding execution of the principal sum for a year , that medio tempore , he might do diligence to sell and uplift . george steuart contra mr. james nasmith . december . . george steuart having obtained the gift of the escheat of one hume , pursues a general declarator , wherein compears mr. james nasmith , having a declarator depending of the same escheat , and alleadged he ought to be preferred , having his gift first past the privy seal , and had the first citation thereupon . george steuart answered , that his gift was first past in exchequer , and the composition payed in march , before the rebel was denunced on mr. james nasmiths horning , whose gift past in exchequer in june only , and alleadged that he being postponed , through the negligence of the keeper of the register , whom he had oft desired to give him out his gift , it must be esteemed as truely then done ; and as to the citation , both being now pursuing , he having done full diligence , could not be postponed , and produced an instrument taken against the keeper of the register , bearing him to have acknowledged , that the gift had been sought from him formerly . the lords having considered the instrument , and that it was after nasmiths gift was sealed , although it mentioned former requisitions , that was but the assertion of the nottar , or of the keeper of the register , and therefore preferred nasmiths gift . andrew clapertoun contra lady ednem . december . . in anno . umquhile sir iohn edmistoun of ednem , granted a bond of provision to iean stirling of two bolls of victual , which he obliged himself to pay to her out of the mains of ednem , or any other of his lands , by vertue thereof she was in possession , out of the mains of ednem , till the year . andrew clappertoun her son and assigney , pursues the lady ednem , as intrometter with the rents of the mains of ednem , to pay the pension since . the defender alleadged absolvitor , because she stands infeft in the mains of ednem , by vertue of her liferent , and thereupon has possessed ; and the pursuers pension is meerly personal , and does not affect the ground , nor is valid against singular successours , and though conceived in the best way , can have no more effect , then an assignation to mails and duties , which operats nothing against singular successors , unless it had been an ecclesiastical pension , clothed with possession , having letters conform , which only is valid against singular successors . the lords found the defense relevant . iohn oglvie contra sir iames stewart . eodem die . patrick leslie , and several cautioners , granted bond to sir iames stewart , who assigned the same to john denholme , who used execution , in his cedents name , and took some of the debitors with caption , and being in the messengers hands , this iohn ogilvie assisted to the making of their escape , and thereupon being incarcerat by the magistrats of edinburgh , ( which concourse of their authority , by their officers , as use is , in executing captions within edinburgh , ) by aggrement ; the said iohn ogilvie payed lib. to be free , and thereupon obtained assignation from sir iames stewart , to as much of the bond , with warrandice from sir iames own deed , and excepting from the warrandice , an assignation formerly made by sir iames , to iohn denholme , iohn ogilvie having pursued one of the debitors , he was assoilzied , upon a discharge granted by sir iames stewart , and iohn denholme , and they both with one consent , whereupon iohn ogilvie charged sir iames upon the clause of warrandice , who suspended , and alleadged , that the foresaid discharge was nothing contrair to his oblidgement of warrandice ; because , in the warrandice , iohn denholmes assignation was excepted , and consequently all deeds done by iohn , as assigny . ita est , this discharge was granted by iohn denholme , and would be valid , by iohn denholme subscription ; and there was no prejudice done to this pursuer , by sir iames stewarts subscription , seing without it , the discharge would exclude him . the charger answered , that iohn denholme subscribed but as contenter and was not mentioned in the discharge as assigney . the suspender answered ; that the discharge being with his consent , was as effectual , as if he had been principal partie , and each of them discharged with others consent . the lords found the reason of the suspension relevant . george loggie . contra peter loggie . eodem die . george loggie having borrowed merk from peter loggie his brother , gave a wodset therefore . the said george being an old man , without hope of children , the reversion was only granted to george , and the heirs of his own body , and his liferent of the wodset lands was reserved , without mentioning of any back-tack dutie , or annualrent , george having used an order and consigned the . merk , obtained declarator , peter suspends , and alleadges no redemption ought to have been , till the annualrent were consigned with the principal . the charger answered , that the contract of wodset bare no annualrent . the suspender answered , that albeit it did not , yet he having lent his money in these terms , in hopes of succession , and his brother having now married a young wife , he ought not to take advantage of him , seing the annualrent is due , in equitie , for the profit of the money . the lords , in respect of the tenor of the contract of wodset , found the letters orderly proceeded , without any annualrent , and that in this case it could not be due , without 〈◊〉 had been so pactioned and agreed . lord balmirino contra town of edinburgh . december . the lord balmirino pursues the town of edinburgh , for spoliation of the tynds of the aikers of restalrige , whereof the towns hospital had a tack , which being expired , inhibition was used yearly , for several years . the defender alleadged absolvitor , from any spuilzie of teinds , because , since the king' 's decreet arbitral , and the fyfteen and seventeen acts of parliament , . spuilzie of teinds is taken away , especially by the said fyfteen act. the parliament ratifies a former deed of the king 's , declaring , every heretor shall have the drawing of his own teynd , and the benefit of a valuation ; and in the mean time , so long as the teynds are not valued , the heretors are only lyable for the fyft of the rent , in name of teynd , secondly , by a contract betwixt the town and the pursuers father , of the aikers of restal●ige lyand runrig with these , are set for half a boll beer the aiker , which is by the contract , declared to be the just and true rate , and value thereof , which by necestar consequence declares the value of the teynds now in question , being runrig with the other . the pursuer answered to the first , that the foresaid act of parliament was only meaned in relation to the king's annuity , and albeit the foresaid clause therein be general , yet it is clear by the . act , which is posterior , that the first part shall be the teynd , after the valuation duely led , which hath been constantly allowed , by custom of the commission of plantations , which gave only warrand to heretors to lead their own teynd during the dependence of a valuation , and therefore spuilzie of teynds have been frequently sustained since the saids acts : as to the second , whatever be the way of conception of the tack , for the other aikers not in question be , though it did acknowledge the same to be the just value thereof , yet it cannot extend to other teynds ; seing where the parties agree in the matter , they are not solicitous for the conception of the words , which cannot be drawn in consequence to any other matter . the lords repelled both these defenses , but declared they would not sustaine spuilzie as to the oath in litem , but admitted the value of the teynd to the pursuers probation . reserving to themselves the modification of the prices , if they should be exor●itantly proven , but not of the quantaties . lady tursapie contra laird of tursapie . december . . the lady tursapie pursues the laird of tursapie , who succeeded as heir to his brother , her husband , for the aliment of the defuncts family , till the next term , after his death , and specially for the alinent , and to the pursuers son , heir appearand to his father . the defender alleadged absolvitor , because the lybel was no wayes relevant against him , as heir , but by the constant custome , the entertainment of the defuncts families , was ever a burthen on their moveables , and upon their executry . the pursuer answered , though it was ordinarly retained off the moveables , yet the heir was also lyable , seing the defunct was oblieged to entertain his servants and children , at least to a term , but much more when there were no moveables , or where the defunct was rebel , and the donatar intrometted . the defender answered , that it was novum to conveen an heir on this ground , and that the alledgiance of there being no moveables held not here ; neither is it relevant that the moveables were gifted , unless it had been declared before the defunct's death and possession obtained , otherwayes the relict ought to have alimented the family out of the moveables , which would have liberat her from the donatar , and is yet ground against the donatars . the pursuer answered , she could not retain , because the donatar with concourse of the defender did put her brevi manu from the defunct's house and all the moveables . the lords having amongst themselves considered this process , did put difference between the aliment of the appearant heir , and the rest of the family : as to the heir they found , that albeit he was never infeft , yet as appearant heir , he had right to the mails and duties from his fathers death , untill his own death , though the terms had been to run before he was born , being in utero , and that the defender , in so far as medling with the rents , was lyable for the appearant heirs aliment ; but for the rest of the familie , the lords superceeded to give answer till diligence were done against the donatar , or other intrometters with the moveables . thomas dumbar of muchrome contra the vassals of the barrony of muchrome . eodem die . thomas dumbar of muchrome , pursues reduction and improbation against the vassals of the barrony of mochrume , wherein all the terms being run , reserving defenses . now at the last term it was alleaged , for hay of arriolland , no certification contra non producta against him , because he had produced a precept of clare constat from the pursuers father as heir , to whom he pursues . secondly , it was alleaged that he had produced sufficiently to exclude the pursuers right produced , and so till his rights produced were discust and taken away , there could be no certification contra non producta . the pursuer answered to the first , that the precept of clare constat was but in obedience of a precept out of the chancellary . as to the ancient rights produced , if the defender would rest thereon , he needed not stand that certification should be granted against any others not produced , seing these produced are sufficient ; but if the certification should be thus stopped , the effect of all improbations and non-entries should be marred by dropping in new writs from time to time , and still disputing thereon , and so dispute the reasons before the production were closed , at least the defender ought to alledge that the writs produced are sufficient , and declare he will make use of no further in this process . the lords repelled the first alleadgance on the precept of clare constat being for obedience , but found the second alleadgance relevant hoc ordine , and ordained the defender to condescend upon his rights by way of defence to the pursuer , to answer thereto presently . collonel iohn fullertoun contra viscount of kingstoun . ianuary . . collonel iohn fullertoun having charged the viscount of kingstoun , upon a bond of borrowed mony , he suspends on these reasons . that the collonel granted assignation to umquile sir alexander dowglas to a sum dew by sir william thomson ; and notwithstanding of the assignation he uplifted the sum himself , at least his brother by his order , whereupon the lady kingstoun ; daughter and heir to the said sir alexander , having licence to pursue , hath pursued the collonel upon the warrandice for re-payment ; which action being seen and returned , and ready to be discust , the suspender craves compensation thereon . the charger answered , that the reason of compensation is not relevant , because it is not liquid , the foresaid sum not being confirmed by any executor , nor sentence thereupon ; neither can it be instantly verified , because it must abide probation , that the collonel or his brother by his order uplifted the sum , and there being only a licence to pursue , the debt cannot be established till a confirmation . secondly , albeit the compensation were relievable , yet the reason ought to be repelled ; because , that any such assignation was granted , it was in trust , to the collonels own behove , as is instructed by a missive letter to the charger produced . it was answered for the suspender , that the answers founded upon the missive letter ought to be repelled , because it was null , neither being holograph , nor having witnesses . secondly , it is most suspect , being written upon old blacked paper . the charger answered , that letters amongst merchands , though not holograph , are sustained , and ought much more among souldiers , especially between the charger and sir alexander , who then was his lieutenant collonel ; which is the more clear , that there was never a question of it these years , neither was it contained in the inventar of sir alexanders papers , though there were insert papers of less moment , but that it was gotten from one white , for . or . pound . the lords repelled the compensation , as not being liquid , and found the letters orderly proceeded , superceeding execution till whitsunday . but upon the other process against the charger , the lords considering the matter was old and dubious , before answer , they ordained witnesses to be examined hinc inde , upon all adminicles that could be adduced for , or against the trust. lady otter contra laird of otter . eodem die . the umquhile laird of otter , by his contract of marriage , having provided his estate to his heir male ; provided merks to his eldest heir female , when she should be capable of marriage ; and an occasion offered , whereupon the said heir female her mother pursues the heir male for payment of the sum , and for payment of an aliment to the heir female during the time she hath been with her mother , and in time coming , till the provision be payed . the defender alleadged the libel is no way relevant , for aliment , he not being oblidged by the contract , for any aliment , but only for the sum , at such a time ; neither is there any annualrent due for the provision , till the term of payment . yet the lords found , that albeit that was no annualrent , nor provision for aliment , and that de jure annualrent is but due , ex pacto , they would in this case allow an aliment , far within the annualrent , because it was all that the daughters got for a very considerable estate , which was but a very small provision . patrick nicoll contra sir alexander hope . eodem die . patrick nicoll pursues a declarator of propertie of his lands , of grantoun , and that he had good right thereto , conform to the bounds lybelled . it was alleadged , for sir alexander hope . first , all parttes having interest are not called , this being an action , that in effect terminateth upon a perambulation , or determining of the marches . it is a real action , and there is necessity to call the heirs of sir iohn hope , who died last , vest and seased , in the other adjacent lands . the pursuer answered , that he offered him to prove , that sir iohn had disponed in favour of sir alexander , and resigned in his time . it was answered for sir alexander , that sir iohn was not denuded ; seing no infeftment followed , and the disposition is but an incompleat personal right , so that some having the real right must be called . the lords repelled the defense , in respect of the reply . it was further alleadged for sir alexander , that he had builded a park dyke upon a part of the ground in question , before the pursuers right , sciente & astante domino : the former heretor having never opposed , nor contradicted , which must necessarily infer his consent . the pursuer answered , that it was not relevant , to take away any part of the property , upon such a presumptive consent , neither was he oblieged to disassent , seing he knew that which was builded upon his ground , would become his own in edificatum solo cedit . the lords repelled this defense also , but they thought that the taciturnitie might operat this much , that sir alexander might remove the materialls of his wall , or get from patrick nicol quantum partem est lucratus , by the building of the wall. murray of merstoun contra thomas hunterr . eodem die . mvrray of merstoun pursues thomas hunter fot a spulzie of malt , who alleadged , that as to that member of the lybel of the spulzie of the malt , by the defenders hunding out , or command . it is only relevant scripto vel juramento . the pursuer answered , that she qualified the probation thus , that the defender intrusted a messenger , or officer , to execute a precept of poynding , by delivering him the precept , and therefore the precept , with the execution thereupon is sufficient probation . the defender answered , that the same is not sufficient ; because the officer execute the precept extra territorium , whereby it became a spuilzie , which ought not to be imputed to the defender , unlesse it were offered to be proven , that he ordained the officer to poynd this malt without the jurisdiction , and that only scripto vel juramento . the pursuer answered , that as the giving of a precept of seasin , is a sufficient warrant , without any other procuratry , whatever the effect of the seasin be , so must the delivery of the precept of poynding be sufficient to instruct the warrand , or command to poynd , where-ever the poynding was execute , and the user of the poynding should be lyable to the deeds done by the person he intrusts ; especially , seing not only the messenger was sent , but other servants , and messengers imployed by the user of the poynding . the lords found the giving of the precept of poynding to the messenger , and his unwarrantable poynding extra territorium not sufficient only , but found it relevant , to prove , by the messenger , and defenders servants imployed by him , their oaths , that they were commanded to poynd this malt , or other goods in this place , being extra territorium . skeen contra lumsdean . eodem die . skeen having charged alexander lumsdean , for payment of a bond , for which he was cautioner for mr. thomas lumsdean his brother , alexander suspends on this reason ; that the bond was granted for a bill of exchange , drawn by one dutch man , upon another to be payed to skeen , or his order , which bill , skeen ordained to be payed to anna balty spouse to mr. thomas lumsdean ; for which this bond was granted : ita est the saids bills of exchange were not payed , but protested ; and is assigned by mr. thomas lumsdean , and his spouse , to the suspender ; at least , if any payment was made to mr. thomas lumsdean the cedent , it was after the assignation to alexander lumsdean the suspender , and intimation thereof . it was answered , for the charger , that the reason ought to be repelled , because he offered him to prove , by mr. thomas lumsdean , at that time factor at campheir his compt-book ; that albeit the bills was once protested , yet they were payed before assignation , or intimation . the lords before answer , having granted several commissions to the magistrats , and conservitor at campheir , to view and examine the compt-book which was at campheir . they reported , that in such a page of the book there was three articles of receipt , in part of payment of the bills , after which pages the book was containued , and several compts written therein , and that it was authentick , and unvitiat , and all written with the hand of iohn muire mr. thomas stepson , who was his book-keeper , and that they had been a long time since out of mr. thomas hands , about the time he bankerupted , and that they had examined upon oath , him who drew the bill , amd him upon whom the bill was drawn , both , who had sworn payment was made , the question was , whether mr. thomas compt-book could prove against mr thomas his assigney . it was alleadged , it could not , seing it had no more effect then as holograph discharge , which might be made up after the assignation , and therefore proves not against the assigney . it was answered , that though a holograph discharge will not prove alone , yet if by other adminicles , writs or witnesses , it appeas that the date is true , at least is prior to the assignation , or intimation , it will be sufficient against the assigney , so the adminicles here are pregnant and strong , to prove the time of payment contained in the compt-book . the lords found the compt-book and adminicles sufficient here against the assigney , especially considering , that the cedent was his brother , and that it was not presumable , that he would do any deed , in making up these receipts in his compt-book , in prejudice of his brother . thomas beg contra sir thomas nicolson . ianuary . . thomas beg charges sir thomas nicolson of carnock upon his bond of merk ; he suspends on this reason , the charger is only liferenter , and hath no right to lift the sum , because the bond is conceived thus , to thomas beg and his spouse , the longest liver of them two in conjunct-fee , and to the bairns procreat betwixt them , which failzing , to two bairns of a former marriage , thomas and margaret begs , and which bond contains a precept of seasife , for infefting the said thomas and his spouse , and the bairns of the marriage , which failzing , the said thomas and margaret , bairns of the former marriage , according to which there was a seasine taken , not only to the two spouses , but to the two bairns , nominatim , who therefore are feears . the lords repelled the reason ; because having considered the bond , and infeftment conceaved as aforesaid : they found the husband , by the conjunct-fee to be feear , and the bairns of the marriage to be destinat heirs of provision ; and the said margaret and thomas , to be only substitue as heirs of tailzie , failzing the bairns of the marriage ; and that therefore , if the father had died infeft in the annualrent , if there had been bairns of the marriage , they , male and female , joyntly and equally behoved to be served , specially as heirs of provision to their father , and so infeft , and failzing bairns , thomas and margaret , behoved also to be so served and infeft : for albeit there needs no general service , where persons are nominatim substitute in a personal right , requiring no infeftment ; yet where there is infeftment , there must be a special service . and therefore found the father , feear might uplift the mony , or might change the destination thereof , as he pleased ; and albeit thomas and margaret were infeft nominatim , yet they found the seasine was without warrand , bearing only to infeft them , in case of failzie of heirs of the marriage , and the infeftment could only be granted to the conjunct-feears . iohn scot contra montgomery . eodem die . john scot , as assigney to certain bonds granted by montgomery to andrew robertson , charges montgomery , who suspends upon this reason , that he instantly instructs by a back-bond , that the bonds is for the price of certain lands , and by the back-bond , it is provided , that these sums should not be payed , till the writs of the lands were delivered , and payment made of some duties thereof . the lords found the back-bond , being before the assingation relevant , against the assigney , albeit the bonds were simple , bearing borrowed money . greenlaw contra 〈…〉 ianuary . . greenlaw being pursued by 〈…〉 for spuilzie of two mares , in may . alleadged absolvitor , because he was then in arms for the king ; and took these mares for the service , and had warrand from his officers ; which he offered him to prove by his pass , and capitulation produced , expressly including him , with his officers , who capitulate . the pursuer answered , the mares were great with foal , and altogether unfit for the service ; and if they were specially commanded to be taken , it might be instructed by writ . the lords considering this capitulation , being about that same time , found , that albeit there had been no order , yet the defender being then in arms , acting modo militari , the act of indemnity freed him , and would not give occasion to such process , and therefore assoilzied . tennents of kilchattan contra lady kilchattan , major campbel , and baillie hamilton . ianuary . . old kilchattan , in his sons contract of marriage , dispons the lands of kilchattan to his son young kilchattan , and his lady in conjunct-fee ; whereupon there was infeftment taken , in favours of the husband and wife , to be holden from the disponer , and of the king ; but the same was not confirmed till the year . at which time , major campbel procures a confirmation of the conjunct-infeftment , and seasine thereon ; which confirmation hath a clause insert ; bearing the same to be only in so far as may confirm and establish the right of an annualrent granted by young kilchattan to the major : and thereafter the lady confirms the conjunct-infeftment simply . in anno . young kilchattan infefts major campbel in an annulrent out of the lands : thereafter heugh hamilton appryzed from young kilchattan , and was infeft upon this appryzing about that time . it was alleadged by the lady , that she ought to be pre-ferred , because she being joyned with her husband in the conjunct-fee , and thereupon infeft ; it is sufficient to give her the right of liferent , which is but a personal servitude . it was answered , first , that major campbel having procured the first confirmation , which is expresly limit unto his annualrent , must be preferred to the lady , and that such limitations might lawfully be , because it being free for the superiour to confirm , or not , or to confirm a part , and not the rest , he might confirm it to what effect he pleased ; and his confirmation being extended no further , the lady cannot crave preference , because she is now only infeft in the lands in question in warrandice , that her principal lands shall be worth so much , and it is not yet declared in what they are defective . the lords , in respect the ladies right was not confirmed , preferred the major as to his annualrents . it was alleadged for heugh hamiltoun , that he must be preferred to the annualrenter , because he being publickly infeft upon his apprysing , before the infeftment of annualrent , at least before it was cled with possession , whereby it became a valid right , the king's charter upon the apprysing , is virtually and equivalently a confirmation of kilchattans infeftment , especially in favours of a creditor , who could not perfectly know his debitors condition ; which if he had known ; and given in expresly a confirmation to the king , it would have been accepted , seeing the king respects none , and therefore the king 's granting of a charter upon the apprysing must be interpret equivalent . the lords found that the charter upon the apprysing was not equivalent to a confirmation . it was further alleadged for heugh hamiltoun , that the confirmation obtained by major campbel , behoved to accresce to him ; who had the first compleat right , by publick infeftment upon the apprysing , and albeit that base infeftment upon the annualrent granted by kilchattan to major campbel , was prior , yet it was null till it was cled with possession ; and therefore if it was not cled with possession before heugh hamiltouns infeftment , the confirmation must accresce to heugh hamiltouns infeftment . the lords found that the base infeftment was not null for want of possession , albeit it might be excluded by a publick infeftment before possession , but found that heugh hamiltouns publick infeftment was not compleat in it self , because it put heugh hamiltoun only in the place of young kilchattan , who had a null right till confirmation : which confirmation they found did accresce to the base infeftment , being cled with possession at any time before the confirmation , for at that time it became a compleat right ; at which time the appryzing and infeftment was no compleat right , and therefore the confirmation , albeit it had not had this restriction accresced to the base infeftment , as being the first compleat right in suo genere . earl of roxburgh contra a minister . eodem die. in a review of a decreet at the instance of a minister against the earl of roxburgh ; the point in question was , whether or no the judges for the time , or now the lords of session , were competent to discuss this nullity , of a decreet of locality , by the commission for plantation , in that it called the earls lands expresly designed , to be his lands , and he was not called . the lords found , that albeit they would not decide upon the nullities of the decreets of the commission competent by way of reduction , which behoved to be before the commission it self ; yet this nullity being palpable and competent by exception , or suspension , that they might thereupon suspend simpliciter , the decreet of the commission . earl of errol contra parochioners of ury . eodem die . the earl of roxburgh pursues the heretors for the teind , from . till . as he who had right during that tyme , by the act of parliament , . establishing the right of the teinds in the patron , in leu of their patronage ; and also as he who had tack thereof , and had since possessed be tacit relocation . the defender alleadged , as to the first title , that the parliament , . was not only annulled , but declared void , ab initio , as a meeting without any authority , as to the tacit relocation , it could not extend any further then so many years as the beneficed person could set . it was answered for the earl , that the rescissorie act could not prejudge him , as to any thing anterior to it's date , unless it had born expresly to annul as to bygones . the lords found the lybel , and reply relevant , as to bygones before the act , albeit there be no salvo in that act , as there is in the rescissory acts of the remanent parliaments , and found that the pursuer had right , per tacitam relocationem , till he was interrupted , even for years which the beneficed person could not validly set , as a liferenters tack will be validly set , as a liferenters tack will be valide against the feer , per tacitam relocationem , after her death , though she could grant no tack validly after her death . relict of mr. thomas swintoun minister of ednems contra laird of wedderburn . eodem die . the minister of ednems relict insisting for the reparation of the manss . it was alleadged for the heretors , that those who have right to the teinds as tacks-men , or otherwayes , ought to bear a proportion , of the reparation . the lords found that albeit these who have right to the teinds , were accustomed to repair the of kirks , and the heretors the rest of the kirk ; yet there was neither law nor custom alleadged , the teinds could be burdened with any part of the reparation . sword contra sword. eodem die . one sword as heir served and retoured , to bailzie sword of saint andrews , pursues for intromission with the moveable heirship , for delivery of the same , and produces his service done at saint andrews , and retoured , whereby he is served as oye to the defunct bailzie , his father brother ; compears another party ; who is likewise served heir to that same bailzie , at edinburgh , and produces his service retoured , by which he is served heir to bailzie sword , as his father brother son , whereupon he hath raised a reduction in latine , under the quarter-seal of the other service , which was prior , and alleadges , that he being in a nearer degree of blood then the other , in so far as he is a father brother son , and the other service bears him to be but a father brothers oye . the lords having considered both the retoures , and that they were not contradictory , inferring manifest error of the assize , because it was sufficient for the assize to serve the father brothers oye , if they knew of no nearer degree ; and also because the defunct bailzie might have had two father brothers , one elder then his father . and the other younger , and thereby two heirs , one of line and another of conquest , which not being clear by the retoures ; the lords will not prefer the first retour as standing , but would hear the parties upon the reduction . mr. james stuart contra mr. john spruile . ianuary . . mr. iames stuart and robert stuart bailzie of lithgow , as curator to him , as a furious person , or idiot , by gift of the exchequer , pursues mr. iohn spruile for sums of mony due to mr. iames. it was alleadged no process at the instance of robert stuart , as curator , because by law , the tutors or curators of furious persons , are conform to the act of parliament to be cognosced by an inquest , whether the person be furious , and who is his nearest agnat , of the fathers side , past twenty five . the lords found process , robert stuart finding caution to make forth coming , and declared it should be but prejudice to the nearest agnat , to serve according to the said act of parliament , for they thought , that as the lords might name curators , ad litem , in the interim , so might the king , and that the exchequer was accustomed to do . william zeoman contra mr. patrick oliphant . ianuary . . in a competition betwixt zeoman and oliphant , anent the estate of sir iames oliphant , who having killed his mother , was pursued criminally therefore , before the justice , and being charged to underly the law , for the said crime , under the pain of rebellion , he compeared not , and the act of adjournal was declared fugitive , and his moveable goods ordained to be inbrought : the criminal libel proceeded , both upon the act of parliament against paricide ; and also upon the act of parliament , declaring that killing of persons under assurance of trust , to be treasonable ; hereupon the king granted a gift of sir iames forefaulture to sir patrick oliphant , who thereupon was infeft . it was alleadged for william zeoman , who had right by appryzing , that there could be no respect to the gift of forefaulture , because sir james was never forefault , but only declared fugitive , and denunced as said is ; and that any doom of forefaulture had been pronounced , the crime behoved to have been proven before an assize , else there could be no forefaulture ; neither could the donator possess , medio tempore , till the crime were yet put to the tryal of an assize , because sir iames is dead . the lords found that the gift of forfaultuee could not be effectual for the reasons foresaid , and found that the act against paricide , could be no foundation of a gift , because it only excluded the murderer , and his descendents , to succeed to the person murdered , by declaring expresly that the murderers collaterals should succeed , and so there was no place for the king. and as for the other act of murder under trust , they found that there being no probation , it could work nothing , and there is no doubt , but though there had been probation , that act of murder under trust , doth not directly quadrat to this case , upon that natural trust betwixt parents and children , but only to trust given by express paction , or otherwise it could evacuat the benefit of the foresaid other act anent paricide , and would prefer the fisk to the collaterals of the murderer , if he had done no wrong , contrair to the said act , anent paricide , which is not derogat by the other . wallace contra edgar . eodem die . iames wallace as assigney by iames scot , to a decreet obtained against iohn edgar in drumfreis , having charged thereupon , edgar suspends , and alleadges compensation , upon debts due by scot the cedent to the suspender , before the intimation of his assignation ; and therefore according to the ordinary course , debts due by the cedent , before intimation , are relevant against the assigney , and condescends upon several bonds and decreets against the cedent , assigned to the suspender , before the chargers intimation . the suspender answered , that albeit any debt due by the cedent to the debitor , before intimation , will be relevant to compense against the assigney ; yet that will not extend to sums assigned to the debitor , before the chargers assignation , unless that assignation had been intimat , before the chargers intimation , because the assignation only doth not constitute the suspenders creditor , or the cedent debitor , until it be intimat ; and so there being no debiium and creditum , before the intimation , there can be no compensation , which is contributio debiti & crediti . the suspender answered , that the assignation constitute the right , and the creditum , but the intimation was only necessar in case of competition of other assigneys , and he needed not intimat to scot ; quia intus habet , in respect scot was owing him as much . the lords found no compensation , unless the suspender had intimat his assignation to the cedent , and so had constitute him his debitor , before the cedent was denuded , by the chargers assignation and intimation . children of netherlie contra the heir . ianuary . . the children of umquhil edgar of netherlie , alleadging that their father left to his heir a competent estate , and that he dyed before any provision or aliment appointed to them , and that the heirs tutor refused to aliment them : their mother being also dead , therefore craved an aliment to be modified , there being no compearence in the contrair . the lords found the brother , as being heir to the father , of a competent estate , lyable to aliment the children being wholly unprovided , but determined neither the time , nor the quantity , till the condition of the estate were instructed . bain contra laird of streichan . eodem die . the laird of streichan being pursued by bain , proponed a reason of compensation , and produced a writ for instructing thereof , being called at the advising of the cause . the lords suffered him to reform the alleadgence , seing he instructed it instantly , by another writ then was formerly produced . sydeserf of ruchlaw contra wood. eodem die . there being mutual contraventions betwixt ruchlaw and wood , both relating to a peace of ground , upon the marches of their lands , which ruchlaw alleadged to be his property , and that wood had contraveened by needful pasturage thereon , himself being present , when he was desired to remove his goods off the same : and the other alleadging commonty , and that ruchlaw had contraveened by wilful debarring him from his commonty . the lords before answer , granted commission to examine witnesses , hinc inde , concerning their possession of property , and commonty ; and having advised the testimonies , found that the matter was not so clear as to be the ground of a contravention ; and therefore assoilzied both parties , but declared it should be free to them both , or either of them to turn their libel into a molestation , and to reform the same accordingly thereanent . they granted again commission before answer , to examine witnesses , hinc inde , anent eithers possession , and the indurance thereof , which was not cleared by the former commission . robert grahame contra iohn rosse . eodem die . in a competition betwixt grahame and rosse , and a third party , all compryzers , the posterior appryzers craving to come in pari passu , by vertue of the late act of parliament . it was alleadged for grahame , who had obtained infeftment , that he ought to be preferred ; because albeit his appryzing was since ianuary . yet he had been in possession thereby seven years , and so had the benefit of a possessory judgement . this was repelled , because the act of parliament was but late , before which there could be no ground to come in pari passu , and there was no exception in it , of these who had possessed or not possest , before the act. secondly , grahame further alleadged , that he ought to be preferred ; because he was infeft in an annualrent out of the lands , which is a real right excepted by the act of parliament . thirdly , that rosse could not come in , because rosses appryzing was before . and the act of parliament brings in only appryzing since december , . fourthly , none of the parties could come in with him , until first they payed him their proportionable part of the composition , and expenses bestowed out by him , conform to the act. the lords found that albeit grahames appryzing was not upon the infeftment of annualrent , but upon the personal obliegement for the principal , and bygone annualrents , upon requisitions , which was a passing from the infeftment of annualrent ; yet that he might , pro loco & tempore , pass from his appryzing , and might be preferred to his bygone annualrents , upon his infeftment of annualrent ; in this case of composition , albeit there was yet no appryzing upon the infeftment of annualrent ; and found that iohn rosses appryzing before . was not excluded , but behoved to be in the same case , as if it had been after : but found that the other appryzers before they came in , behoved to satisfie the composition proportionally by the tenor of the act. sir robert montgomerie of skelmarlie contra iohn broun . ianuary . . sir robert montgomery pursues iohn broun , for perfecting a bargain agreed upon in word betwixt them , where sir rob●rt was to dispone the right of an appryzing of the lands of fordel , for which john was to pay . merks ; after which verbal agreement , iohn broun write a letter to sir robert , in relation to the bargain , bearing , that he was affrayed not to get the money at the time agreed upon ; and then bearing the said words , all i can say now is , i am not to pass from what was spoken betwixt you and me . the defender alleadged , that this being a communing in word , anent an heretable right , est locus penetentiae , there being yet neither minute , disposition , or other security , subscribed . and as to the letter , it was not to be respected , because it was no minute , and mentionated , that the writer was not fully resolved , that he would be able to provide the money , and keep the bargain ; as for the word signifying , that he would not pass therefrom , it did but express his present resolution , and was not obligatory ; and though they were , so long as sir robert might resile , notwithstanding of the letter , john broun might also resile . it was answered for the pursuer , that his libel stood most relevant , because there is only locus penitentiae , when there is no writ ; but if any party obliege himself to stand to a former communing , his own voluntar deed , has unquestionably oblieged him , unless the other did resile , and the obligation is as valid in a missive letter , as the most solemn bond : neither are words , i am not to pass , to be interpret , to signifie a resolution , but being in materia obligatoria , must signifie an obligation , otherwise all minuts must be void , and are ordinarly expressed in such terms , as are to do , or shall do such things : and whereas there was several practicques , produced , finding locum penitentiae in such cases , though they were earnest , and though there were possession , and a letter whereby the resiler designed another party by the lands disponed , yet there was no obligation in writ , as in this letter : and likewise iohn brown payed . merks , of the price , albeit he took a bond of borrowed money , till things were perfected , and got the keys of the houses . the lords found there was yet place to resile , and therefore assoilzied . margaret stevenson and her son contra ker and others . eodem die . margaret stevenson pursues margaret ker , as vitious intromissatrix with the goods of her husband , for payment of a debt , wherein he was cautioner . she alleadged absolvitor , because her iutromission was purged , in so far as she had confirmed herself executrix creditrix . it was answered by the pursuer , non relevat , unless before intenting of the cause . the defender answered , it was sufficient , being within year and day , after the defunct's death . which the lords found relevant . lord balnagoun contra m. thomas mckenzie . eodem die . balnagoun as donator to the escheat of his father , pursues mr , thomas mckenzie for the price of some lands , sold to him by his father , and for the annualrents since . it was answered for the defender , that there was no annualrent due by the minute ; and albeit it was the price of land , yet balnagoun had never made mr. thomas a right to this day , but had forced him to be at a huge expenses and plea , and so was in mora , that the price was not payed : and albeit●he did possess the lands , it was by redeeming wodsets thereupon , contained in the minute . the lords found mr. thomas lyable either for the annualrent , or for the superplus of the rents of the land , more then payed the annualrent . in this process it was found that the probation of a tenor , before an inferiour iudge was null . margaret edgar contra iohn murray . ianuary . . margaret edgar having charged iohn murray , as cautioner for the umquhil viscount of stormont , he suspends and offers him to prove by her oath , that she transacted with him to accept a decreet against the principal to free him . the charger answered , that she being a wife clade with a husband , could not swear in his prejudice . the suspender replyed , that before her marriage , he had raised a pursuit , and cited her to hear and see it found and declared , he was free of cautionry , in respect of the said transaction , and so the matter being litigious , her marrying during the dependence cannot exclude him from his oath , but must work against her husband , who is only jure mariti , a legal assigney . the lords found this reply relevant . scot contra mr. john dickson . eodem die . scot as assigney by her father to a bond , charges mr. iohn dickson to make payment , he suspends on this reason , that the assignation being while the charger was wife to scot her husband , the sum belonged to the husband , jure mariti ; and therefore craves compensation of the like sums , payed to , or for the husband . the charger answered , that though the date of the assignation was before her husbands death , yet her father keeped the same in his custody , and it was not intimate till after the husbands death , and so the right not being established in the wifes person by intimation , could not accresce to the husband , unless the suspender would instruct that it was intimate before . the lords found that seing the assignation was now in the wifes hands , they would not put the suspender to prove the delivery thereof , during the marriage , but that it was presumed to have been delivered according to the date , and that thereby it became the husbands , jure mariti , though no intimation was in his time . archibald stuart contra bogle and matthie . ianuary . . bogle and matthie being conveened before archibald stuart , as baillie of the regality of glasgow , for a wrong committed upon two other persons in the kirk , upon the sabbath , thrusting in upon them in seat , and beating them , they were therefore amerciat in . pounds , half to the party , and half to the fiskall . it was alleadged the fine was exorbitant , and that inferiour courts could not amerciat above ten pounds , as it had been found by several decisions . it was answered that this court being a regality , and the fact so atrocius , the fine was very competent . the lords sustained the decreet . town of linlithgow contra inhabitants of borrowstounness . eodem die . the town of linlithgow having apprehended an inhabitant of borrowstounness , in their town , being an un-free man , and exercising the trade of merchandise , they put him in prison , he granted bond to forbear in all time coming : likeas they fined him in a . merks , he suspended and raised reduction on this reason , that the bond was extorted , when so far as he was summarly taken , and put in prison , and could not get out till he promised to give the bond , and immediatly after he was out subscribed the same . the charger alleadged there was no unjust force or fear , because by the acts of parliament , in favours of free borrows , all unfree men are discharged to exercise the trade of merchandise , whereupon they had obtained decreet against the same suspender to desist and cease therefrom . secondly , they and all other free borrows had immemorially possessed this priviledge , to apprehend persons found within their town , and forced them to find caution as law will , upon debt due to any in the town , and particularly to put them in prison , till they give such bonds in surety as this . the suspender answered to the first , there was no such warrand by the act of parliament , but only to charge with general letters , un-free men to find caution ; and for the priviledge of borrows , to arrest un-free persons within their towns ; it is only in case of debts , and other merchandises , due to burgesses , but cannot be extended to this case , where there is a special order set down by act of parliament . the lords found that the burghs royal summarly upon staple ware of un-free men , and might judge thereanent , but not summarly incarcerate their persons , but only to charge them ; and found their custom and priviledge , not to extend to this case ; and therefore found the reason of reduction relevant . the lady carnagy contra the lord cranburn . eodem die . lady anna hamiltoun and the lord carnagie her husband , as having obtained a gift of recognition from the king , of the barony of innerweek , and being thereupon infeft , pursues the lord cranburn to whom the samine was disponed , by the earl of dirletoun , grand-father to both , for declaring the recognition , and the donatrix right , in so far as iames maxwel , late earl of dirletoun , holding the saids lands of his majesties ward , and relief had , without his majesties consent , alienat and disponed the same to iames cicile his oye , then second son to the lord cranburn , procreat betwixt him and the earl of dirletouns second daughter . it was alleadged for the defender , absolvitor , because where there was no infeftment , there could be no alienation nor recognition ; and there could be no infeftment without the same were granted to the disponer , or his procurator , to the accepter to his procurator ; but here there was no accepter nor procurator , because cranburn being then a child , and in england , had granted no mandat to take this seasine ; and therefore had raised reduction thereof , as done without his warrand . and as to the procuratory expead in the chancellary , constituting an acturney to the said iames cicile , the expeading thereof was without his knowledge or warrand ; and therefore the seasine being taken without his warrant , was null , and made no alienation nor recognition , as if any heretor disponing ward-lands , and giving a precept of seasing , if any third party should accidentally find , or steal away that precept , and take seasine , the same would be found null , as without warrant , and would infer no recognition . ly , absolvitor , because the disposition to the defender , bears expresly , that dirltoun dispones , failzing heirs-male of his body , so that it being conditional , and the seasine being actus legittimus qui nec recipit , di●m nec conditionem , the samine is null ; for if di●ltoun had an heir-male of his own body , he would have excluded james cicile , not by way of reversion , or retrocession , there being none such in the disposition ; therefore it behoved to be a suspensive condition . ly . absolvitor , because though the seasine had been accepted warrantably , yet the accepter was minor , and thereupon leased , and ought to be restored and the seasine annulled , and consequently the recognition . the pursuer answered to the first , non relevat , for albeit there had been no acturney out of the chancellary , the seasine would have been valid , because there needs no other procuratory , for taking of seasine , but only the precept of seasine , which is an express mandat of the disponet , and the having thereof in the acturneys hand , is a sufficient evidence of the warrant or mandat to be acturney , for the receiver , which proves sufficiently his warrant , neither was there ever any more required to a seasine in scotland , and if more were required , all seasines would be null , it being ordinar to give seasines to infants , or absents out of the countrey ; but the delivery of the precept by the disponer , to any person in name of the accepter , is a sufficient mandat , or acturney for the accepter , especially here , where a grand-father gives infeftment to his oye , he might well give a warrant to an acturney for him to accept . to the second , albeit the disposition bears , failing heirs-male of the disponers body : yet the precept is directed to give present state and seasine without delay ; whereby it is clear , that the disponers meaning was not , that this condition should be suspensive to impede the infeftment : and therefore all it could operate is , to have the effect of a resolutive condition , that if any heir-male should be supervenient , he might upon that condition pursue james cicile to renunce the right , or to declare it null , neither is a seasine actus legittimus , and though it were , and were incapable of a day or condition , yet that would not annul the act , but annul the condition or day , as aditio haereditatis , is actus legittimus : yet if any man enter heir for a time , or under condition , he is heir simply ; and the time and condition is void , but not the entry it self . to the third , albeit regulariter , minors leased may be restored , yet that hath its exceptions , as a minor being denunced rebel , and his escheat fallen , or thereafter his liferent , or bearing in non-entry , either simply , or through a wrong or informal infeftment , he would never be restored against these casualities , so neither against the taking of seasine , in so far as may infer recognition . ly , there could be by the seasine no lesion at that time , cranburn being then but his mothers second son , and not alioqui succ●ssurus , to the half of the estate , as now he is ; neither is ever lesion interpret by the prejudice of any part of a deed , unless there were lesion of the whole , as if lands were disponed to a minor , with the burden of debts , he could not reduce the burden of debts as to his lesion , unless thereby the whole disposition were to his lesion . the lords repelled these three defenses . rig of carberrie contra his creditors . eodem die . the creditors of carberrie having obtained a decreet against carberrie , and denunced him thereupon , pursues for annualrent since the denunciation , conform to the act of parliament thereanent . the defender alleadged absolvitor , first , because the horning was manifestly null , he being denunced in the name of richard the usurper , after he was out of his pretended authority . dlie , because the decreet being suspended , a fifth or sixth part thereof was taken away . dlie , , the denunciation was not at the cross of the regality of musselburgh where he dwells , but at edinburgh , lie , before the d●nunciation he had given in a bill of suspension , whereupon there was a deliverance given , superceeding execution , till the bill were seen and answered ; in the mean time these pursuers getting the bill to see , proceeded to denunce . the pursuers answered to the first , that it was nottour , and attested by the keeper of the signet , that richard was repute in scotland , to be in his authority till the . of may . till which the signet was open , and many letters past in his name , and this denunciation was upon the sixth of may , and the charge in aprile . in respect whereof , the lords repelled the first defense ; they repelled also the second defense , as to the annualrent of what was found due by the last decreet . they repelled the third defense , because the usurper had cryed down regalities : and found the fourth defense relevant , scripto vel juramento , viz. that there was a deliverance stopping execution the time of the denunciation . rickart contra eodem die . rickart being tacks-man of a room of the barony of lowdoun , set the same to a subtennent , for paying the heretors rent , and so much superplus , whereupon he charged the sub-tennent , who suspended , and alleadged that the charger had sub-set to him as tacks-man , and was obliged to produce his tack to him , and being warned by the heretor , he did by way of instrument require the chargers tack ( if he any had ) to defend himself thereby , which he refused ; and the truth is , he had no tack unexpired : whereupon he was necessitate to take a new tack from the heretor , for the whole duty he was obliged to pay to the heretor , and rickart before . the charger answered non relevat , unless as he had been warned , he had also been removed by a sentence , in which the charger would have compeared and defended : and albeit he had not compeared , the defender had this defense competent , that he was tennent to the charg●● , by payment of male and duty , who had right by tack , either standing , or at least he bruiked , per tacitam relo●ationem , and he not warned nor called . the lords found the reason of suspension relevant , and that the foresaid defense of tacit relocation would not have been relevant , tacit relocation being only effectual against singular successors of the natural possessor . the warning of whom is sufficient to interrupt the same , not only as to them who are warned , but any other tacks-man , whose tacks are expired , and therefore the defense in that case , must always be , that the defender is tennent , by payment of male and duty to such a person , who either is infeft , or hath tack and terms to run after the warning ; but if the charger had a tack standing , the lords ordained him to produce the same , and they would hear the parties thereupon . charles oliphant contra dowglasse of donnoch . february . . charles oliphant as assigney constitute by david macbrair , charges dornoch to pay the sum of merks : compearance is made for an arrester , as having arrested before the assignation , at least before intimation . the assigney answered , no preference upon this arrestment , because it was execute upon the sabbath day , and so is not lawful : for by the law of all nations , judicial acts done by authority of judges , upon legal process , diebus feriates are null ; and there is an act of sederunt to that same effect . the arrester answered , that there was no law prohibiting such executions , or declaring them null ; and though it was a fault and breach of the sabbath to do so , that annuls not the act , fi●ri non debet sed factum valet . the lords were all clear that such executions should be prohibit in time coming , but quo ad praeterita , some were non liquct ; yet the major part found the execution null , for they thought , that albeit acts of privat parties on the sabbath day , might stand legally valid , as if extracts were subscribed that day , or a consignation made , ( which had been found valid by a former decision ) yet judicial acts , authoritate judicis , are null , else messengers would ordinarly wait parties upon the sabbath day , for all execution by horning and caption , &c. laird phillorth contra lord frazer . february . . sir alexander frazer of phillorth , being in distresse for debt , disponed his barony of cairnbuilg ; to robert frazer of doors , which lands of cairnbuilg lyes near to phillorth , and the house thereof was his residence , in the alienation there is a clause conceived to this effect , that it shall not be leisom to the said robert frazer of doors , to alienate the lands , during the lifetime of the said sir alexander frazer , and if the said robert frazer did in the contrary , he obliged him to pay to the said sir alexander , the sum of ten thousand pounds for damnage and interest , ex pacto convento , and if the said robert should have a●do to sell the saids lands , after the death of the said sir alexander , he obliged him to make offer there to the heirsand assigneys of the said sir alexander ; or any person he pleased nominat of the name of frazer , for pounds . the said robert frazer of doors , disponed the saids lands to staniewood , during the life of sir alexander frazer : sir alexander assigned the contract , and the foresaid clause to this phillorth , whereupon he raised improbation and reduction , of the disposition granted by doors to staniewood , the lord frazers grand-father upon this reason , that he as assigney by his father to the clause de non alienando , had good interest to pursue reduction of the disposition contraveening the said clause ; and true it is that the said disposition granted by doors to staniewood , was null ; as proceeding a non habente potestatem , in so far as by the foresaid clause , in the said alienation granted by his grand-father to doors ; it was expresly provided , it should not be leisom for doors to sell , &c. which being a provision in the disposition repeated , at the least generally in the procuratory of resignation , is pactum reale , effectual against singular successors , as was lately found in the case of the lord stormont , and so must annul the right made contrair thereto . ly , albeit it were not a real paction , yet unquestionably the obligement not to annalize , did personally oblige doors , and thereupon there was an inhibition raised before my lord frazers grand-father staniewoods right : and therefore the disposition made thereafter ought to be reduced , ex capite inhibitionis . it was answered for the lord frazer , to the first member of the reason , non relevat ; for such an obligation , de non alienando● is reprobat in law , as being contrair the nature of property . ly , it is not reale pactum , albeit it were in the charter or seasine , much less being only in the disposition , and in the narrative of the procuratory of resignation thus , and to the effect the said robert frazer may be infeft , upon the provisions and conditions in manner foresaid , but no further mention thereof ; in the procuratory of resignation or infeftment , and so meets not with stormonts case , where the clause was expresly resolutive , that in such a case the right should be null ipso facto ; and return to the next person who might be heir of tailzie . which clause was not only in the disposition , but in the procuratory , charter , and seasine registrate ; and thereby equivalent to a publication of an interdiction : but here there is no resolutive or irritant clause , nor any right reserved to return in case of contraveening , nor is it in the infeftment at all . as to the second , the inhibition cannot make the clause effectual to annul the alienation , because doors was not simply obliged , not to alienat during sir alexanders life , but if he did in the contrair , to pay ten thousand pound for damnage and interest , ex pacto convento , which cannot be understood of damnage by delay , or expence in attaining the principal obligation , seeing it bears not as is ordinar by and attour performance , and the quantity thereof being so great , it must be evidently understood of the value of the principal obligation , so that it becomes an alternative or restrictive clause , whereby it was in doors option , whether to forbear to sell , or to pay the ten thousand pounds if he did sell , so that the inhibition can reach no further then to the ten thousand pounds , seing doors by selling , became obliged for the ten thousand pounds . the lords found the defense relevant , and that the clause or inhibition could extend to no further then ten thousand pounds . it was further alleadged for frazer absolvitor , from the ten thousand pounds , because it being a moveable sum , fell under sir alexander frazer his escheat , which was gifted to one forbes , and declared expresly as to this ten thousand pounds , and assigned to the lord frazer . the pursuer answered that this sum was heretable , because it succeeded in the place of the principal obligation , not to alienat for such a time ; and after that time to offer the lands of phillorth and his heirs , for eight thousand pounds , which is clearly an heretable clause ; and therefore this sum coming in leu thereof , must belong to the heir or assigney , and so fell not to the fisk , seing surrogatum sapit naturam surrogati , as sums consigned for redemption of lands before declarator , are not moveable , but belong to the wodsetters heirs or assigneys ; so in mutual obligations , whereby one person oblieges to dispone , or resign lands ; and another is oblieged for a price , the price would not belong to the executor , or fisk , but to the heir ; any sums due for damnage and interest , not performing a disposition , or upon eviction , belongs to the heir , not to the executor . the defender answered , that this sum is not in the case of any of the former alleadgences , neither is the question here , what would belong to the executor , but what would belong to the fisk , for moveable heirship belongs to the heir and not to the executor , and yet belongs to the fisk , so do sums without destination of annualrents , wherein executors are secluded . so also doth the price of lands , when they are de presenti , sold by the defunct . the lords found this sum moveable and belonged to the fisk , and therefore assoilzied the defender from that member also . mr. ninian hill contra maxwel . february . . mr. ninian hill pursues maxwel as heir to his father iohn maxwel , for payment of a sum due to be payed to maxwels relict yearly after his death , and assigned to the pursuer . the defender alleadged absolvitor , because the pursuers cedent being executor her self to the defunct , was lyable for this sum , & intus habuit . it was answered for the pursuer , that this being an annual , payment after the defuncts death , it was proper for his heir to pay the same , not for his executor , and if the executor had payed it , he would get releif off the heir . which the lords found relevant . grahame contra ross eodem die . the parties having competed upon appryzings , being decided the . of ianuary . wherein the lords found that none of the appryzers should come in with him who was first infeft , till first they payed their proportional part of the composition and expenses ; now having considered again the tenor of the act of parliament , they found that they behoved to satisfie the whole , and that the obtainer of the first infeftment should bear no share of it , that being all the other appryzers gave , ●to got the benefit of the act , to come in pari passu . lenox contra lintoun . eodem die . lenox being married to margaret mcgie , who was an heretrix , she dying , lenox son was infeft as heir to her , who dying also without issue , this lenox as his brother by his mother , and alleadging him to be appearing heir to his brother lenox , in these lands , whereunto his brother succeeded to their mother , craves exhibitions of the writs of the lands , ad deliberandum . the defender lintoun alleadged absolvitor , because his son being infeft in the lands as heir to his mother , his nearest agnat on the fathers side , his apparent heir , and ●one on his mothers side ; for we have no intrin succession , neither holds it with us , materni maternis , paterni paternis . which the lords found relevant , and that the father was apparant heir to his son , being once infeft as heir to the mother , and therefore assoilzied . lady carnagy contra lord cranburn . eodem die . this day afternoon the lords advised the rest of the defenses , proponed for the lord cranburn , in the recognition pursued at the instance of my lady carnagy , who alleadged first , that recognition was only competent in proper ward-holdings , and not in blench feu , or burgage ; these only being feuda recta & militaria , and all others but fendastra ; but the lands of innerweek are not a proper military feu , holding ward , being only a taxed ward , wherein the word duties is taxed yearly , and the marriage is taxed to so much , and so is in the nature of a feu ; neither was it ever yet found in scotland that a taxt-ward did fall in recognition . the pursuer answered , that the defense is not relevant to rule in our law , being that alienation of ward-lands , without the consent of the superiour , infers recognition , and neither law nor custom hath made exception of taxt-wards , which have but lately occurred in the time of king iames , who and king charles were most sparing to grant gifts of recognition , whereby there hath been few debates or decisions thereanent , and there is no consequence , that because the casuality of the ward , when it falls , is liquidat and taxed , or the value of the marriage , that therefore the fee is not a military fee , wherein the vassal is oblieged to assist his superiour in counsel and in war , in the stoutest obligations of faithfulness and gratitude ; and therefore his withdrawing himself from his vassallage , and obtaining another to him , is the greater ingratitude that the superior had taxed the benefite of the ward , and marriage , at low rates , which casualties , cannot be drawn to prejudge the superior , of other casualties but on the contrair , exceptio firmat regulam in non exceptis . the lords repelled this defense . it was further alleadged , that here was no offer of a stranger , but of the vassals own grand-child , who now is his apparent heir in one half of these lands , as being the eldest son of his second daughter : and recognition was never found in such a case . the pursuer answered , that albeit the defender be now apparent heir to the vassal disponer , yet the case must be considered , as it was in the time of the disposition , when he had an elder brother , the then lord cranburn living , and was not alioqui successurus : and the lords had formerly found ; that an alienation of ward-lands , by the earl of cassils to his own brother , albeit he was his nearest of kin for the time , having no children , yet seing he could not be esteemed alioqui successurus , or heir apparent , in regard the earl might have children , therefore they found recognition incurred . the lords repelled this defense : ly , it was further alleadged , that there could be no recognition , where there was no alienation of the fee , without the the superiors consent , here there was no alienation of the fee ; because the seasine being taken to be holden from dirletoun , of the king , not confirmed , was altogether null , and therefore dirletoun was not divested , nor cranburn invested , for such an infeftment is ineffectual , and incompleat , till confirmation , and could never be the ground of pursuit , or defense against any party . ly , by such an infeftment , the superiors consent is a condition implyed , for an infeftment to be holden of the superior , is null till confirming , and implyes as much as if the seasine had been expresly granted , si dominus consenserit , and so can be no obtrusion , or ingratitude . ly , craig in his dieges . de recognitionibus , reports the decision of the lords betwixt mckenzie and bane , whereby they found , that the seasine being unregistrat , was null , and inferred no recognition , quia non spectatur affectus , sed effectus ; yet that was but an extrinsick nullity , much more here , the seasine being intrinsically null . the pursuer answered , first , that if this ground hold , there could be no recognition , except by subaltern base infeftments holden of the vassal , in which there is far lesse ingratitude , there being no new vassal obtunded , nor the vassal withdrawing himself from his clientel , nor any prejudice to the superior , because subaltern infeftments would exclude none of the casualities of the superiority , yet such alienations , exceeding the half of the fee , do unquestionably infer recognition , though the ingratitude be no more then this , that the vassal renders himself unable fitly to serve his superior , by delapidating his fee , or the major part thereof , how much more , when he does all that in him is , to withdraw himself from the superiors clientel , by obtruding to him a stranger , alienating from him the whole fee , and albeit the seasine be null , as to other effects , till it be confirmed : yet as craig observes in the foresaid place , vassalus fecit quantum in se erat . ly , though by our statute , or peculiar custom , such seasins unconfirmed are null ; yet by the act of parliament . anent ward holdings , recognition is declared to proceed according to common law , which can be no other then the common feudal customs , by which customs it is sure that the recognition is chiefly inferred by the vassals alienation : as to the implyed condition , si dominus consenserit , though that were expresse , yet the vassal giving seasine , the tradition of seasine is inconsistant with such a condition , being understood , as a suspensive condition , for he that delivers possession de facto , cannot be said upon any condition not to deliver the same de facto , and therefore it is but protestalio contraria facto , and if it be understood as a resolutive condition , as needs it must , it impedes not the alienation , but only might resolve the same . as to the decision upon the not registration of the seasine una herundo non facit ver , and albeit it might be a rule in that individual case . it cannot be extended ad alios casus , although it were a statute , much lesse a practick . the lords also repelled this defense . ly , it was further alleadged by the defender , that dirletouns infeftment was granted by the king , haeredibus & assignatis quibuscunque , and thereby the king consented , that he should dispone his right to any assigney , or singular successor , and this clause is equivalent to the ordinar feudal clauses , vassallo & quibus dederit , which is ever understood to exclude recognition , neither can this be understood to be stilus curiae , as when assigneys are casten in in charters passing the exchequer ; but this is an original grant under the kings own hand . the pursuer answered , that this defense ought to be repelled , because such concessions , contrair to common course of law , are stricti juris , and not to be extended ad effectus non expressos praesertim prohibitos , but the adjection of assigneys is no ways to allow alienations of the fee , without consent , but to this effect , because feuda and benficia are in themselves stricti juris , and belong not to assigneys , unlesse assigneys be expressed ; and therefore albeit no infeftment had been taken , the disposition , charter , or precept could not be assigned : so that this is adjected , to the end that those may be assigned before infeftment , but after infeftment , assignation hath no effect , and this is the true intent of assigneys . in dispsitions of land , it is clear , when the disponer is obliged to infeft the acquirer his heirs , and assigneys whatsoever , there is no ground whereon to compel him to grant a second infeftment to a new assigney ; but only to grant the first infeftment to that person himself , or to any assigney whatever , which clears the sense in this case . it hath also this further effect , that singular successors thereby might have right to a part of the lands , which though it would not infer recognition if done , yet if there were no mention of assigneys it would be null , and as not done in the same case as a tack , not mentioning assigneys . the lords repelled this also . ly , it was further alleadged , that recognition takes only place , where there is contempt and ingratitude , and so no deed done through ignorance infers it , as when it is dubious whether the holding be ward or not ; and therefore recognition cannot be inferred , seing there is so much ground here to doubt , this right being a taxed ward , and to his heirs and assigneys , and it is not clear , whether it would be incurred through a seasine à se , or to one in his family , whereupon the wisest of men might doubt , much more dirletoun being illiterate , not able to read or write . it was answered , ignorantia juris neminem excusat . ly , vbi est copia peritorum ignorantia est supina : here dirletoun did this deed clandistenly , without consulting his ordinar advocats , or any lawyers , and so was inexcusable ; and if pretence of ignorance could suffice , there could be no recognition , seing it cannot misse to be ignorance that any should do that deed that will be ineffectual , and losse their right . the lords repelled this defense , and all the defenses joyntly , and decerned . lord loure contra earl of dundee . february . . the lord loure , pursues a reduction of a disposition made by carnegy of craig to the earl of dundee , as being posterior to the pursuers debts , and in prejudice thereof , upon the act of parliament . against bankrupts , and for instructing of the reason , repeats the disposition it self , being betwixt confident persons , cusing germans , and without cause onerous , in so far as it bears reservation of the disponers , and his ladyes liferent , and provision to be null , if craig have heirs of his body , in whose favours dundee is to denude himself , upon payment of his expense . the defender alleadged , that the lybel is not relevant . prim● , because craig is no bankrupt , nor any diligence done against him , before the disposition . ly , he is not insolvent by the disposition , because there is reserved to him a power to sell as much of the land as is worth lib. for debt , and so is not in fra●dm crea● oru● ; but the pursuer ought to pursue for that provision , either by appryzing , or personal action . the lords found the reason relevant and proven by the tenor of the disposition , and therefore reduced , to the effect , that the pursuer m●ght affect the saids lands with all legal diligence for his debt , as if the disposition had not been granted ; for they thought , seeing , by this disposition there remains not esta●e sufficient , ad paratam executionem , and that there was no reason to put the pursuer to insist in that clause , to restrict himself thereby to a part of the land , but that he ought to have preference for his debt , upon his diligence , affecting the whole land. william montgomery contra theoder montgomery and mr. william lauder . february , . . william montgomery , as donatar to the liferent-escheat of theodor montgomery , pursues a special declarator against the tennents of whit slide belonging to margaret hunter in liferent , and now to theodor , jure 〈◊〉 , for their duties . it was alleadged , that the horning was null , because the d●bt was satisfied before denunciation . the pursuer answered , that it was not competent , in the special declarator , to question the nullity of the horning . ly . though it were in a general declarator , it were not competent , not being instantly verifyed without reduction . ly , it were not probable , but by writ , before the denunciation , and not by the creditors oath , or having discharges , being in prejudice of the king , but that no hazard might be of ante-dating it , was required by act of parliament , that beside the writ , the parties should depone upon the truth of the date . the defender answered , to the first ; all defenses competent in the general declarator , are reserved in the special . to the second , there is a reduction depending . the lords found the defense relevant , only scripto of the denuncer . the defender further alleadged the horning was null , as being upon a null decreet , and falling therewith in consequence . the lords repelled the defense , and found , though the decreet were null through informality , yet the horning would not be anulled , but the partie was in contempt , in not suspending debito tempore . compearance was also made for mr. william lauder , who alleadged he had disposition from the rebel , before year and day run . the lords found this alleadgeance not relevant , unless it were alleadged to be for a just debt , before the denunciation . it was further alleadged for mr. william , that the pursuer granted back-bond to the thesaurer to imploy the gift , by his appointment , and he offered to satisfye the donatars debt , and the whole expense of the gift . the lords found this not relevant , without a second gift , or declaration from the thesaurer . thomas crawfoord contra 〈…〉 eodem die . thomas crawfoord , as executor creditor to umquhile robert inglis pursues some of his debitors . it was alleadged no process ; because thomas , as factor for robert inglis , had pursued the same partie , for the same cause , before the commissaries of edinburgh , wherein litiscontestation was made : and so now it cannot be pursued elsewhere , but the process , ought to be transferred and insisted in . the pursuer answered , that he pursued then as factor , but now as executor-creditor , who did not consider what diligence defuncts did : but might insist therein , or not . dly , this being a dilator , is not instantly verifyed . the lords found the defense relevant , but would not find it competent , unless instantly verifyed ; and because it behoved to be instructed by an act extracted . catharine frazer contra heugh frazer . february , . . the said catharine only child of a second marriage , being provided to eight thousand merk of portion , at her age of years , but no oblidgment of aliment , or annualrent till then , pursues her brother , as heir to her fathers estate , being of a good condition for aliment . he alleadges he was oblidged for none , not being parent , nor his father oblidged by contract , or bond for it . the lords found an aliment due , for the pursuers mother was not alive , and able to aliment her . lockie contra patoun . february . . elizabeth lockie spouse to doctor patoun , pursues a reduction of a disposition , granted by her husband , to certain persons , as prejudicial to her contract ; in which contract there was a clause , declaring execution to pass at the instance of certain persons , who concur with this pursuit . the lords sustained the pursuit , though it was not for implement , but for reduction of a right , impeding the benefit of the contract , without concurse of the husband , seing the process was against a deed of the husbands , and he called passive . earl of southesk and carnegy contra bromhall . eodem die . bromhall having taken the lord sinclar with caption , southesk and his son gave bond , to produce him to the messengers ; or to pay the sum. on the third of february , betwixt two and ten , whereupon southesk having reproduced him , craved by supplication , his bond up , or to be declared satisfied , and extinct . the defender answered , first , he not being a member , or dependent on the colledge of justice , cannot be called thus summarily : especially to declare a bond void , which is in effect a reduction . dly , the bond was not performed , in so far as the lord sinclar was not reproduced till the th of february . the pursuer answered , that the defender living in edinburgh , and not compearing , the bill , per modum quaerelae might be sustained . to the second , it being modica mora of one day , without damnage to the defender , and there being trysting amongst the parties all the time betwixt , it was sufficient . the lords sustained the petition , and found it extinct . relict of george morison contra his heirs . eodem die . this relict pursues for implement of her contract . it was alleadged she had accepted a wodset , in full satisfaction thereof , which now being redeemed , she could crave no more , but re-imploying the money to her in liferent . the lords found , that this acceptance by the wife , being donatio inter virum & uxorem , she might now revock it , and therefore found the heir lyable to make up what was in the contract . the town of linlithgow contra unfree-men of borrowstounness . february . . the town of linlithgow insisted in their charge , upon a bond granted by some inhabitants of borrowstounness , oblidging them to disist and cease from us●ing the merchant trade , under the pain of , merk which was suspended , on this reason , that the bond was extorted by unwarrantable force , in so far as the suspenders were taken in linlithgow brevi manu , and incarcerat , till they granted the bond. the charger produced a decreet of the lords , in anno . against several inhabitants in borrowstounness , compearand , who having suspended the general letters , upon act of parliament , for finding caution to desist , &c. the letters were found orderly proceeded ; and the town of linlithgow impowred , not only to seize upon the merchant goods of the inhabitants of borrowstounness , if they medled in merchant trading , but also bearing , with power to put the persons , using the saids merchant trade in prison , till justice were done upon them ; and thereupon alleadge , that the suspenders being incarcerat , by vertue , and conform to the foresaid decreet standing , there was no unwarrantable force used . dly , they produced an act of the council of linlithg●w ▪ bearing the suspenders , to have compeared before the council , and to have confessed their wronging of the said town , in the trade of merchandize ; and that there was horning and caption against them , for the cause ; and therefore declared their willingness to grant the bond in question . the suspenders answered to the first , that albeit the foresaid decreet bear compearance , yet there is no dispute in it , and it is evident to be by collusion , and surreptitious ; because this conclusion now alleadged , is ultra petita , there being no such thing in the general letters , nor doth the decreet bear any special charge given , neither is this conclusion warrantable , by any law , or act of parliament . dly , this decreet could be no warrant to incarcerat the suspenders , because it is given only against some particular persons , then living in borrowstounness ; without calling either of the barron or baillies of the burgh of b●rronie , and therefore is null , as to any other persons ; and as to the second answer , upon the act of council , it cannot prove against the suspenders , being only under the town-clerks hand , not being a process upon citation , nor having a warrnat subscribed by the suspenders . the lords having considered the bond in question , albeit they found the tenor thereof not to be contrair the act of parliament , yet found the same was unwarranttably taken , if the same was extort●d , as aforesaid , and found the decreet of the lords not to militat against the suspenders , or to warrand that incarceration brevi manu , and found the act of council proved not agai●st the suspenders and yet ordained them to renew a bond , by the lords authority of the like tenor . elizabeth fleming and sir iohn gibson contra fleming and robert baird . by contract of marriage betw●xt the said robert baird , and his spouse , he accepted merk in name of tocher in satisfaction of all his wife could succeed to , by her father , mother , sister and brothers , and discharged his mother as executrix , and tutrix thereof ; yet she having formerly put more bonds in the name of roberts wife , then this sum , and there being no assignation to the remainder in the contract , pursues the said robert and his spouse , to grant an assignation thereof , and to pay what he had uplifted of the sums , more nor his tocher . the defender alleadged the summons are not relevant , he neither oblidged ex lege , nor ex pacto to assign . the pursuer answered , this being bona fidei contractus , the meaning and interest of the parties is most to be respected , and therefore though it contains but expresly a discharge , which cannot be effectual , to lift the sums from the creditors , but would loss them to both parties , he must assign : especially , seing his acceptance of full satisfaction imports an oblidgment , to denude himself of the superplus . and which the lords found relevant , and sustained the summons . walter riddell contra eodem die . walter riddell , as executor dative confirmed to one liddell in the ca●nongate , pursues his debitors to pay , compears a donator , as ultimus haeres , and craves preference . the pursuer answered . first , his gift was not declared . dly . he offered to prove the defunct had an agnat , viz. an uncle , or an uncles son. which the lords found relevant to be proven by witnesses . robertson contra buchannan . february . robertson pursues buchannan , to repay to him a sum of money , who alleadged , that his bond bearing to pay this charger , or to arthur buchannan his brother , it is alternative & electi● est debitoris , and he has compensation against arthur , which is equivalent , as if he had payed him . the lords repelled this alleadgance , and found that the charger being deliverer of the money , and now haver of the bond , it could import no more , but that the other brother was adjected for the chargers behove , and that there is no option to the debitor in such cases . mr. iames forsyth contra archibald patoun . february . . mr. iames forsyth , as executor confirmed to his sister , pursues the said archibald patoun her husband , for payment of her third of his free goods , at the time of her death . the defender alleadged , first , by the deceased wifes contract of marriage with the defender , she accepted a lib. for all she could crave by his decease , in case there were no bairns of the marriage , and albeit there was a bairn surviving her , yet the bairn shortly thereafter dyed . the lords repelled this defence , and found that the bairn surviving the mother , never so short was enough . it was further alleadged absolvitor , because the deceased wife having a child surviving her , her share belonged to that child , as nearest of kin , and the child being dead , belongs to the defender , the childs father , as nearest of kine to the child , and cannot go back to the mothers nearest of kin ; because there is no succession of cognats in scotland . the pursuer answered , that if the child had been executor confirmed to the mother ad eundo haereditate , would transmit the same to the father , but there being no confirmation haeredi●as mobilium jacebat , and the goods remain yet still in bonis defuncti maritis , and albeit it was found in the case of bells contra wilkies , that it was not necessar to transmit moveables , that the testament were execute ; yet in that case it was a confirmation , which was esteemed an addition . the defender answered , that he had done diligence to have it confirmed , but during the childs life , all judicatories were stopped , and he had taken instruments of his desire to be confirmed : and alleadged , that as bairns surviving would transmit their legittime though they had done no diligence ; so this bairn surviving alone was sufficient . the lords found , that seing there was no confirmation , the right was not established in the childs person , and that the right could not fall to the father , but fell to the nearest of kin of the mother , and found it was not like a legittime , which is only of the fathers means , and not of the mothers , and hath a special priviledge in law , to be transmitted by more superviving . margaret hay contra sir geo●ge morison . eodem die . sir geoege morison having granted a bond to umquhile iohn bell and margaret hay , the longest liver of them two in conjunct-fee , and after their decease , to the bairns of the marriage , the said margaret , with concurse of the bairns , charges for payment , sir george suspends on this reason ; that margaret is but liferenter , and the bairns of the marriage are but feears ; and therefore , seing there was an infeftment upon the said bond , he ought not to pay the sum , till the bairns be infeft as heirs of provision of the marriage to their father , and renunce the infeftment . the lords decerned , but superseded the extract , untill the bairns were infeft , as heirs of provision to their father : and did grant renunciation , and found , that all the bairns , male and female , joyntly and equally , behoved to be served as heirs of provision to their father in this annualrent , and infeft accordingly , and that by bairns , was not to be understood the heir of the marriage only . colonel iames montgomery contra the heirs of robert halliburtoun eodem die . in a declarator of redemption of a part of the lands of collfield . the lords sustained the order , at the instance of the collonel , as being a singular successor , albeit he produced not the reversion , at the using of the ordor , nor now , seing the defender compeared and he offered to prove by their oath , or their curators , that they had the contract of wodset in their hand , both then and now . birsh contra dowglas . february . . birsh an inglish woman pursues catharine dowglas , to pay a bond , wherein she and her umquhile husband were oblidged . the defender alleadged absolvitor , because it was a bond stante matrimonio given by a wife , which is null in law. it was replyed it is ratified judicially , and the defender oblidged never to come in the contrare upon oath judicially , which is the strongest renunciation of that priviledge of wifes , and it hath been frequently found , that minors making faith , cannot be restored lesionem conscientia ex juramento violato . the lords having debated the case at large amongst themselves , found the bond null notwithstanding of the oath ; for they thought , that where the deed needed no restitution , as in the case of minors , these deeds are valid , but the minor may be restored ; but in deeds ipso jure null , where there need no restitution , an oath cannot make , that ane legal deed which is none , it was winne by a vot or two , many thinking that such priviledges introduced by custome or statute might be renunced , and much more sware against ; but that it were fit for the future , that all magistrats were prohibited to take such oaths of wifes , or minors , who are as easily induced to swear , as to oblidge , and if they did , that they should be lyable to pay the debt themselves . dumbar of hemprigs contra lady frazer . eodem die . my lady frazer , being first married to sir iohn sinclar of dumbeath , next to the lord arbuthnet , and last to the lord frazer , dumbar of hemprigs as executor confirmed to dumbeath , pursues her , and the lord frazer her hushand , for his interest , for delivery , or payment of the moveables of dumbeath , intrometted by her . it was answered . that she had right to the half of dumbeaths moveables , as his relict , and her intromission was within that half . it was replyed , that she had only right to third , because dumbeath had a bairn of the former marriage , who survived him , and so the executory must be imparted . it was duplyed , that that bairn was for as familiat , married , and provided before her fathers death , and so was not in familia , and albeit , if there had been any other bairns in the family , that bairns part would have accresced to them , yet being no other : it accresced to the man and wife ; and the executory is bipartiti . the lords found the defense and duply relevant , albeit it was not alleadged , that the tocher was accepted , in satisfaction of the bairns part of gear , unless those who have right would offer to confer , and bring in the tocher received ; in which case , they might crave a third , if the same were not renunced , o● the tocher accepted instead thereof . it was further alleadged for the lord frazer , that he could not be lyable as husband ; because his lady being formerly married to the lord arbuthnet , he got the moveables , and his successors should be ●yable , at least in the first place . the lords repelled the alleadgeance , but prejudice to the lord frazer , to pursue the successors of the former husband , for repetition , as accords . mckenzie contra iohn ross. eodem die . john ross having appryzed certain lands belonging to mckenzie , there is a pursuite of compt and reckoning intented , for declaring , that the apprysing was satisfyed within the legal . it was alleadged , that the appryzer was not comptable for more of the other parties minority then seven years , because , in the act of parliament anent appryzing , it is so provided , and albeit the meaning of the act of parliament was declared to be otherwayes , by the act of parliament . yet that declaration was contrary to the clear meaning , by the general rescissory act . the lords having considered the rescissory act● and the reservation therein , of the right of private parties following upon the deeds of these parliaments . in respect thereof , and of the custome this years , the appryser useing to compt for all , found the appryser comptable for the whole year of the minority . william blair contra anderson . eodem die . william blair as assigny , by the wife and bairns of mr. david anderson , by his second marriage , pursues his daughters , both of the first and second marriage , as heirs of lyne , for implement of the second contract of marriage , and the daughters of the second marriage offering to renunce to be heirs of line , but prejudice of their provision , by contract of marriage , as bairns of that marriage . the assigney insisted against the daughters of the first marriage , as lawfully charged , &c. who alleadged no processe , because the provision , by the contract of marriage , insisted on , run thus , that mr. david obliged himself , and his heirs-male , successors to him in his estate , but did oblige no other heirs . ita est , there is an heir-male . the pursuer answered , albeit heirs-male were only expressed , other heirs were not excluded : specially , seing he bound himself , so that the effect thereof would only be , that the heir-male should be lyable primo loco . the lords found the heir-male lyable primo loco , and the heirs of line secundo loco , and found the heir-male sufficiently discussed , by an apprizing of the clause of the contract of marriage , in favours of the heirs-male , they not being infeft as yet , and having no other right . scots contra earl of hume . february . . the four daughters of 〈…〉 scot pursues an ejection against the earl of hume , out of some lands belonging to them . it was alleadged for the earl absolvitor , because he entered into possession , by vertue of a decreet of removing , given at his instance , anno . it was replyed , that the decreet was only against the pursuers mother , that they were never called , nor decerned therein . the earl answered , first , that the decreet was against the mother , to remove her self , bairns , tennents , and servants , and her daughters were in the family , being then young bairns ; and he was not obliged to know them , they not being infeft , but having only an old right ; whereupon there was no infeftment for . years the time of the decreet . the lords in respect of the defense , restricted the processe to restitution , and the ordinary profits , and decerned the earl to restore them to possession instantly , but superceeded payment of profits till both parties were heard , as to their rights , for they found , that the decreet of removing could not extend to their children ; and albeit they were not infeft , yet they might maintain their possession upon their predecessors infeftment , how old soever , seing they continued in possession . bessie muir contra jean stirling . eodem die . the said bessie muir pursues her mother , as executrix to her father , for payment of a legacy of . merks left in his testament , subscribed by the defender , and confirmed by her , after her husbands death . the defender alleadged absolvitor , because she , by the contract of marriage , was provided to the liferent of all sums to be conquest , and albeit she consented to the legacy , it was donatio inter virum & uxorem , and for her confirmation , it cannot import a passing from her own right , but only her purpose to execute the defunc●s will , according to law , especially she being an illiterat person . the pursuer answered , that this donation was not by the wife , to , or in favours of the husband , but of their children , which , is not revockable , and also the confirmation humologats the same , seing the wife might have confirmed , and protested to be withont prejudice of her own rigt . the lords repelled the defense , in respect of the reply . cicil ruthven contra hay of balhousie . eodem die . cicil ruthven having granted a bond to david lamb , that thereupon he might apprize from her an annualrent , whereunto she was apparent heir ; whereupon she having obtained a decreet , and now seeking adjudication in lambs name ; lamb produces under his hand a writ declaring that his name was but used in trust , that he disclamed the processe . the lords , notwithstanding sustained proc●sse , being so far proceeded , in respect of the declaration , bearing the trust , and found he could not disclaim , in prejudice of the trust. lady swintoun contra town of edinburgh . eodem die . the magistrats , and councel of edinburgh , having granted them to be debitors to the lady swintoun , by way of act , conform to their custom . the lady supplicat , that the lords would grant letters of horning upon the said act , whereupon the magistrats being cited upon twenty four hours ; alleadged , they were not conveenable hoc ordine , by suiting letters of horning upon a bill , but it ought to have been by an ordinary summons , either craving payment , or letters conform . the lords notwithstanding granted letters of horning . baillies of edinburgh contra heretors of east-lothian and mers . february . . the baillies pursue these heretors for so much allowed of the maintainance of these shires , of the moneths of august and september , . and insisting on an act of litiscontestation , in anno . whereby the defenders having proponed a defense of total vastation , the same was found relevant . the defenders having now raised a review , alleadge that they ought not to have been put to prove total vastation , seing vastation was notour , these shires being the seat of the war , where the english aarmy lay , which ought to have freed them , unlesse the pursuers had replyed , that the heretors got rent that year , and had been burdened with the probation thereof . dly , the order of sir iohn smiths general commissar , and also of the provisors of the army , bearing the provisors to have furnished such provisions want witnesses , and might have been made up since they were out of their offices . the lords adhered to the act , and found the defense of total devastation , yet relevant , in this manner , that the heretors got no rent , and granted commission to receive witnesses , at the head burghs of the shires , for each particular heretor , to prove their particular devastations , and sustained the order of the general commissar , he making faith , that he subscribed an order of the same tenor while he was in office. hary hamiltoun contra william hamiltoun . february . . hary hamiltoun pursues his brother william , as behaving himself as heir to their father iohn hamiltoun apothecary , to pay six thousand merks of provision by bond , and condescends that william intrometted with the rents of the lands of vlistobe , whereunto his father had heretable right . the defender answered , that his father was not infeft , because he infeft the defender therein before his death , reserving only his own liferent . the pursuer answered , that the infeftment was under reversion , and was redeemed by the father , which order , though not declared , gave him the right to this land , and was more than equivalent to an heretable disposition , cled with possession , which would make the apparent heirs intrometting , infer behaving as heir , for the declarator non constituit sed declarat jus constitutum . the lords repelled the defense , and duply , in respect of the condescendence , and reply of the order used . ly . the defender alleadged absolvitor , because those lands were apprized from the defunct , and thereby he was denuded , and so the defender could not be heir therein , at least he could have nothing but the right of reversion , which reacheth not to mails and duties . the lords found , that unlesse the defender had title , or tolerance from the apprizer , the legal not being expired , but the debitor in possession , his heir intrometting , behaved as heir , the apprizing being but a security , of which the apprizer might make no use , or but in part , as he pleased . stirling contra campbel . eodem die . the same last point was found betwixt these parties , and also that the heirs intromission with the whole silver work , so comprehending the best of them , which is the heirship , was gestio pro haerede . anna wardlaw contra frazer of kilmundi . eodem die . andrew wardlaw having a wodset upon some lands of the lord frarzer ; the debitor raises suspension of multiple poinding , against anna sister and heir to the said andrew wardlaw , and frazer of kilmundi pretending right by a legacy , from the defunct to the same sum. the heir alleadged , that it could be lyable to no legacy , being heretable . the defender answered , primo , the legacy was made in pro●inctu belli where there was no occasion to get advice of the formal and secure way of disposing of the wodset , but the will of the defunct appearing in eo casu , it must be held as effectual as testamentum militare in procinc●u , which needs no solemnities . ly , the heirs husband hath homologat the legacy , by discounting a part thereof . it was answered , that no testament whatever can reach heretable rights with us . ly , that the homologation of the husband cannot prejudge his wife , nor himself , quoad reliquum not discounted . the lords found the heirs had only right , except in so far as the husband had homologat the legacy , which they found to prefer the legator to the whole benefit , the husband could have thereby jure mariti , but not to prejudice the wife thereaf●er . iames aikenhead contra marjory aikenhead . february . . the said iames insists for the delivery of a bond granted to his umquhile father , and assignation thereto , by his father to him , against the said marjory , producer thereof . it was alleadged no delivery , because the assignation , in favours of the pursuer , was never delivered , but keeped in his fathers possession , which cannot be accompted his possession , seing the pursuer is a bastard . ly , the conception of the assignation is to the pursuer and his heirs ; which failzing , to the said marjory , and her heirs , and he being now minor , ought not to dispose of the sum in her prejudice . the lords repelled the defenses against the delivery , and found that the pursuer , during his minority should not uplift the sum , till the defender were called , and had accesse to plead her interest . adam hepburn contr helen hepburn . eodem die . the estate of humby being provided to heirs whatsoever ; umquhile tomas hepburn of humby , in his contract of marriage . with elizabeth iohns●oun , provides the said estate to the heirs-male , and provides . merks for the daughters , there is a clause of the contract , bearing , that it should be leisome to the said thomas , at any time , during his life , to alter the said provision , or to dispone thereof , according to his pleasure ; thereafter , upon death-bed he disponed the whole estate , in favours of his daughter of the marriage , being his only child , adam hepburn his brother , as heir-male , intents reduction of that disposition , as being done in lecto aegritudinis . it was alleadged , for the defender , primo , minor non tenetur placitare de haereditate paterna . the defender is minor , and now the question of reduction is , upon her fathers heretage . it was answered , that the maxime holds not , where the question is of the disposition made to the minor , whether valid or not , but where the question is not upon the minors right , but upon the fathers right ; which right of the fathers , or predecessors , the minor is not holden to dispute . the lords repelled this defense , in respect of the reply . dly . it was alleadged absolvitor , because the pursuer having only a personal provision , in his favours , conceived in the contract of marriage , and there being as yet , no infeftment to heirs male , the maxime , that no deed upon death-bed , can be prejudicial to heirs , can be extended to none , but such as are special heirs , and not to those who are by destination heirs , which is less then if a charter had been granted to the heir male , which according to craigs opinion , is but as nudum pactum , and an uncompleat right and could not compell the heirs of lyne , to resign : the pursuer answered , that the maxime is general , and there is no distinction by law , or custome ; whatsoever the heirs be , so that a person having a right to heretable bonds , bearing clause of infeftment , whereupon no infeftment had followed , could do nothing upon death-bed in prejudice of the heirs , who would have succeeded unto those bonds , as to craigs opinion of a charter , it is against law , and the common opinion now received that a charter , or any provision in write is effectual against the granter , and his heirs to compel them to compleat the same . the lords repelled this defense . ly . it was alleadged , absolvitor , because the maxime , can be only understood of the heir of lyne , as nearest of blood , so that nothing can be effectually done in their prejudice , but here the diposition , is but in prejudice of an heir male , and in favours of an heir of lyne , in respect of whom the heir of male is but a stranger , which is the more clear , because this maxime being very ancient , was produced before their was any heir male , or of tailzie ; and because the reason of the law is founded upon the natural obligation , parents and predecessors have , of providing their successors , and so can do them no prejudice : especially , when they are weak , and on death-bed . the pursuer answered , as before , that the maxime is general ; and there is no distinction introduced by law or custome of heirs male : and albeit the law had introduced such heirs since this common law ; yet in so far as it makes them heirs . it gives them the priviledge of heirs , to which the reason of the law doth well quadrat , which is not that natural obligation , but this presumption of law , that persons on death-bed are facile , and weaker in their capacities then at other times , and therefore the law disables them at that time , to alter the setlment of their estates , as they were in their health ; and so allows of no deed , in prejudice of any heir of whatsoever kind , although in favours of another . the lords repelled this defense . ly . it was alleadged , that the defunct , having himself constitute this interest of the heir male , had reserved this power to himself , to alter it during his life , can signifie nothing , unless it impower him to do it on death-bed , because , without any such reversion , he might have altered the tailzie , during his leigpoustie . the pursuer answered , pactum privatorum non derogat jure communi ; therefore this being a special part of our common law , anterior to either act of parliament , or practique , no privat provision , or reversion can capacitat any person to do that which the law declares void ; especially , being upon a reason of weakness and infirmity , which is presumed in persons on death-bed , presumptione juris & de jure , admitting no contray probation , for it will not be admitted , to prove that the disponer was in perfect soundnesse of mind , and therefore , if any person should reserve a power to dispone , though he were not compos mentis : the reservation would signifie nothing , so here neither is the ordinary word adjected , etiam in articulo mortis , or on death-bed , and so cannot be extended to that case and can reach only to what is done lawfully , legittimo tempore & modo , and there is far lesse inconvenience , that a cause should be superfluous , which is very ordinary , then that it should extend to take away common law , neither is the provision adjected as an expresse condition upon which the tailzie was made , and no otherwise . the lords repelled also this defense , in respect of the reply , and so having advised all the defenses , and disputes in the afternoon , albeit the parties had aggreed before hand , and the heir of lynes portion doubled , yet the lords were generally clear in the decisions abovewritten , as relevant in themselves . james cuthbert of dragakers contra robert monro of foules . february . . the said iames pursues the said robert monro , as heir to his predecessor the laird of foules , for payment of a debt due by him , and insists against him as behaving himself as heir , by intromission with the moveable heirship . the defender alleadged absolvitor , because it was not condescended , that the defunct was a person who could have an heir , as to heirship moveable , as being prelat , baron or burgess , and if the lands of foules be condescended on : it is offered to be proven , that he was denuded by appryzing , before his death to which appryzing he had right before he was apparant heir , being tutor to another , who was apparant heir for the time , and therefore the defender has neither behaved himself as heir , by intrommission with the moveable heirship , or the rents of the defuncts lands . dly . the defender died rebel , and his escheat gifted , and declared , and so nihil habuit in se bonis , and could have no moveable heirship . it is answered , for the pursuer , to the first , non relevat , that the lands were appryzed from the defunct , unless the legal had been expyred , yet semel baro semper baro. ly . the pursuer having taken right to the appryzing , while he was tutor ipso facto , it accresced to the pupil , and thereby was extinct , and cannot defend his intromissions . ly . it was for a smal sum , and satisfied by intromission of a year or two , so that the continuance of the apparant heir in the possession , after he was satisfyed is gestio . ly . the gift and declarator , if it was done during the rebels life , it was simulat ●etenta possessione , and so null . the lords found the appryzing not to purge the intromission , unless the legal had been expired , in moveable , and his apparant heir might behave himself as heir , by intromission with the rents of the apprysed lands ; but if the legal was expired , they found it sufficient , and that semel baro semper baro is only to be understood presumptive , nisi contrarium probatur , as also they found the defender his taking right to the appryzing , while being tutor , or continuing in possession after satisfaction thereof , by intromission not to infer the passive title , and that the gift and declarator did take away the heirship moveable , unless it were offered to be proven simul , or retenta possessione during the rebels lifetime . lady milntoun contra laird of milntoun . february . . the lady milntoun pursues the probation of a tenor of a bond granted by maxwel of calderwood , her husband , bearing , that in respect of his facility he might be induced to dispose of his wifes liferent , and thereby redact them both to want and misery ; therefore he oblieges himself not to dispose thereof without his wifes consent , seing he had no means but what he got by her , hereupon she used inhibition , which she now produces as an adminicle , and craves the tenor of the bond to be made up by witnesses . the defender having alleadged . that there behoved here to be lybelled and proven a special causus omissionis , because albeit it were proven that such a bond once was , yet unless it were also proven how it was lost , it must be presumed to have been given back to the husband , granter thereof , whereby he is liberat , and this is the course observed in the tenors of all bonds of borrowed money . the pursuer answered , that this was not like a bond of borrowed money , the intent whereof is , not to stand as a constant right , but to be a mean to get payment ; but this bond by its tenor was to stand as a constant right , to preserve the dilapidation of the liferent , and so cannot be presumed to have been quite by redelivery thereof ; albeit it had been in the husbands hands . the lords before answer to this dispute● ordained the pursuer to condescend what the effect of this write would be , if it were made up ; for if it have no effect , there were no necessity to make it up . the pursuer condescended upon the effect thereof thus , that it would be effectual as an interdiction published by the inhibition , to annual and reduce the disposition of the pursuers liferent , made by her husband , without her consent , in favours of milntoun , her step-son . this bond being accessory to the contract of marriage betwixt the same , and the marriage is pactum dotale , and must have the same effect , as if it were included in the contract of marriage ; and so is a provision for securing of the pursuers liferent to her self , and that no deed by her husband , without her own consent , should be effectual . the defender alleadged that none of these condescendences could be effectual , not the first , because if the foresaid bond were an interdiction , it would have no effect , unless it were instructed that the granter thereof were prodigus , and if it were instructed that he was rei suae providus , it could take away the effect thereof , because an interdiction is nothing else but constitutio car●●torum prodigo ; where albeit it is done of course , periculo facientis sine causae cognitione with us : yet if it be on an false ground and narrative , its ineffectual . ly . though it could be instructed , that the husband was levis ; yet the interdiction is null , being to his own wife , who cannot be his curator , being sub potestate viri : nor curator to any other , much less can her husband be made her pupil , contrair to the law divine and humane . neither could the bond be effectual , as a provision adjected to the contract of marriage , because it being from an husband to his wife , so soon as he was married , it returned to himself , jure mari●i , because nothing can consist in the person of the wife , which belongs not to the husband , jure mariti , being moveable , except an aliment formerly constitute to her in a competent measure . the pursuer answered that she opponed the bond , and further offered to restore to the defender , all that he gave for the disposition of her liferent . the lords after they had reasoned the several points , in jure , and found that without the offer , the bond could not be consistent as an interdiction , in so far as concerned the husband to annul the disposition , but were inclined to sustain the same for the wife , in so far as might extend to a competent aliment of her family to her self , daughter and servants , not excluding her husband : yer they found the offer so reasonable , to repay the sum payed for the liferent , being . merks , and the liferent it self being eight chalder of victual , and eight hundred merks , that they found the effect of the tenor would be to restore either party , hinc inde , but desired the pursuer to let the defender keep the possession of the house and lands , wherein there was many woods newly cutted , he finding caution to pay her eight chalder of victual , and eight hundred merks , which his father was oblieged to make them worth by the contract of marriage . sir william gordoun of lesmore contra mr. james leith . iune . . sir william gordoun of lesmore pursues mr. iames leith of new-lesly , as representing his father , on all the passive titles , and condescended that he behaved himself as heir , by meddling with his fathers heirship moveable , and with the mails and duties of his fathers lands of new-lesly and syde . the defender answered to the first , that his father could have no heirship moveable , because he dyed rebel , and so his hail goods belonged to the king as escheat . ly . if need beis , he offers him to prove that he dyed not only rebel , but his escheat was gifted , and so as a confirmation takes away vitious intromission moveables . so the gift with the escheat must purge vitious intromission with heirship , being before intenting of this cause . ly . he offers him to prove that the heirship moveable was confirmed promiscuously with the rest of the moveables , and that the defender had right from the executor , which confirmation , though it could not be effectual to carry the heirship , yet it was a collourable title , to show that the defender had not 〈…〉 miscendi , but that he meddled by a singular title , and neither formerly drew an heirship , nor meddled therewith , as heir appearing . the pursuer answered to the first , that it was not relevant that he was rebel , nor that his escheat , unless it had been gifted before his intromission , as well as before intenting of the cause , and that the defender had right from the donator . to the second , it was answered by the pursuer , that the promiscuous confirmation was not sufficient , because he offered him to prove , the defender confirmed his own servant to his own behove . the lords found that the defenders father dying rebel , was not sufficient , unless it had been gifted , and declared before intromission , and they found the reply relevant , that the promiscuous confirmation was to the defenders behove . as to the second member of the condescendence , the defender alleadged , . that albeit his father was infeft , yet his infeftment was only base , not cled with possession ; and that the defenders title was by another party , possessing , and publictly infeft before his fathers death . which the lords found relevant . iames allan . contra iames paterson . iune . . james allan charges iames paterson as cautioner in an indenter , for a prentise , set to the charger for five years , and insists upon that article of paying two dayes wadges for ilk dayes absence , and subsumes that the prentise left his service after the first two years , and was absent three years , the said iames paterson suspends on this reason , that it must be presumed collusion betwixt the charger and his prentise , that having gotten the prentise fee , and not learned him the trade , he had suffered him to escape , never making intimation to the suspender , that he might have brought him back to his service , while now that he is out of the countrey , and not knowing where . the charger answered , that there was nothing to obliege him to make such intimation , neither could a sufficient presumption of collusion be sustained . the lords found the letters orderly proceeded , either while the cautioner caused the prentise re-enter , and serve out his time , or otherways payed fifty pound for damnage and interest , to which they modified the charge . margaret fleming contra iames gilleis . iune . . margaret fleming being infeft in an annualrent of . merks out of houses in edinburgh , in liferent , with absolute warrandice from all dangers , perils and inconveniencies whatsomever ; pursues declarator against the said iames gilleis , as heretor , for declaring that her annualrent should be free of all publick burden , since the rescinding of the act of parliament . whereby liferenters were ordained to bear proportional part for their annualrents , with the heretors . the defender answered , the libel was not relevant , for albeit the act of parliament was rescinded , the justice and equity thereof remained , that whatever burden were laid upon land , shouldly proportionably upon every part therof , and every profit forth of it . which defense the lords found relevant and assoilzied . francis hamiltoun contra mitchel and keith . eodem die . sir alexander keith of ludquharn being oblieged by bond to robert mitchel in leith , for the price of certain bolls of victual , was arrested in leith , till he found francis hamiltoun cautioner as law will , and both being pursued on the act , raised advocation on this reason , that the baillies of leith had unjustly forced him to find caution as law will ; he not being dwelling in leith , nor leith not being a burgh royal , but a burgh of barony . it was answered , that the priviledge and custome of the town of edinburgh , was to arrest within leith , and all other priviledges and pendicles thereof . the lords found that it behoved to be condescended , in what place of leith ludquharn was arrested , for the peer of leith was a part of the burgh royal of edinburgh , and was served by a bailie of edinburgh , called the water baillie , and if he was arrested there , it was valid , but the rest of leith is but a burgh of barony , and in that part thereof , the baillie is called baron baillie , it were not valid . euphan hay contra elizabeth carstorphine . june . . the said euphan having obtained decreet against the said elizabeth , for certain furnitur to her house . she suspended on this reason , that her husband was not called . the charger offered to prove , in ●ortification of her decreet , that her husband was . years out of the countrey , and she repute as widow . which the lords found relevant . george reid contra thomas harper . eodem die . these parties competing in a double poinding , george reid craved preference , because he was assigned to the mails and duties by thomas mudie , heretor of the land. thomas harper alleadged that he had arrested the duties upon a debt owing to him by william mudy , father to the said thomas , and any right thomas had , was fraudulent and null by exception , by the express words of the act of parliament . being betwixt father and son , without any onerous cause , and he ought not to be put to reduce in re minima , his debt being within a . pound . the lords found he behoved to reduce , conform to their constant custom in heretable rights . ferguson contra ferguson . june . . umquhil ferguson in restalrig , having a tack set to him by the lord balmerino for certain years , his eldest brother son as heir of conquest , and his youngest brother son as heir of line , competed for the mails and duties of the lands . the lords found the tack to belong to the heir of line , albeit it was conquest by the defender . mcdowgal contra laird glentorchy . june . . mcneil having disponed certain lands to mcdowgal , wherein he was heir apparent to his goodsyrs brother , oblieged himself , to infeft himself as heir therein , and to infeft mcdowgal , at least to renunce to be heir to the effect , mcdowgal might obtain the lands adjudged , whereupon mcdowgal having raised a charge to enter heir , mcneil renunces , and thereupon mcdowgal craves the land to be adjudged , and glentorchy decerned to receive and infeft him ; glentorchy alleadged , that he could not receive him , because he had right to the property himself , unless the pursuer condescend and instruct his authors , in whose place he craves to be entered , had right . the pursuer answered , that lie needed to instruct no right , nor was he oblieged to dispute the superiours right , but craved the ordinar course to be entered , suo periculo , with reservation of every mans right , and the superiours own right , as is ordinary in appryzings and adjudications . the defender alleadged , that albeit that was sustained in appryzings , where the superiour gets a years rent ; and though it might be allowed in ordinar adjudications , proceeding upon a liquid debt , favore creditorum ; yet not in such a case as this , where the vassals apparent heir dispones , and oblieges himself to renunce of purpose , to charge his superiour . the lords found no processe , till the pursuer instructed his authors titles ; but an infeftment being produced , he was not put to dispute the validity thereof , in this instance . menzeis contra laird glenurchy . eodem die . the daughters of mr. william menzeis , as executrix to him , pursues glenurchy for payment of a bond due to their father , he alleadged minority and lesion , and that he had reduction thereupon depending . the pursuers answered no lesion ; because this bond being granted to their father , for his stipend by the defender , who was heretor of the land , he was not leased , because as heretor he was lyable for the stipend . the defender answered that his being heretor could not obliege him , because his grand-father was then living , whose liferent was reserved in his disposition ; who , and the intrometters could only be lyable , stipends not being debita fundi ; and it were of very evil consequence , if the heretor were lyable , during the whole life of a liferent . the lords found that there being a liferenter , the heretor was not lyable , and therefore sustained the reason . elizabeth contra eodem die . the said elizabeth pursued the executors of her husband , and insisted upon several points ; first , she craved the ann , as belonging wholly to her , seing there was no children , and the ann being in favours of the wife and children , the nearest of kin could have no part thereof . the defenders answered , that the ann was introduced the time of popery , when the had no wife nor bairns , and so did still most properly belong to the nearest of kin , who would get it , if there were neither wife nor bairns . the lords found the ann to divide betwixt the pursuer and the nearest of kin. the pursuer insisted next , and alleadged , that a bond bearing clausses of annualrent and obliegement to infeft , behoved either to give a right to the half of the stock , or else to a terce of the annualrents . the lords found the clausses of annualrent and destination , to exclude her from the stock as heretor , and the want of infeftment to exclude her from the terce of annualrent . the pursuer insisted in the next place , and produced a bond granted by her father to her husband , and here the longest liver of them two , and the heirs procreat betwixt them , without any addition or termination , failzing these heirs , and without clausses of annualrents or infeftment , and therefore she claimed the whole sum as being the longest liver . it was answered , that this bond did constitute in her only a liferent , according to the ordinar conception and interpretation of that clause , the longest liver of them two betwixt man and wife ; but especially heirs procreat betwixt them , being mentioned , which behoved to be the mans heirs , who if they had existed , would have had right as heirs to their father , not to their mother ; and therefore the father behoved to be feear , and the mother only liferenter . it was further alleadged , that beside the liferent , the pursuer behoved to have right to the half of the stock , because the sum being moveable , albeit the tenor of the bond made it payable to the relict for her liferent use , yet she behoved to imploy it so , as the stock would remain ; which stock would still be divisible betwixt the relict and nearest of kin , as being moveable . the lords found that the pursuer might take her choise of the liferent , or of the half of the sum , but would not allow her both . iames halyburtoun contra lord roxburgh . ianuary . . james halyburtoun as assigney constitute by his father , pursues the earl of roxburgh , for payment of a debt due to his father . the defender alleadged no process , because the assignation was not intimate in the cedents life , and so he was not denuded , but the sum remained in bonis defuncti . and behoved to be confirmed , especially , seing this assignation is a general assignation , omnium bonorum , without condescending upon this or any other particular . the lords repelled the defense and found process . ninian steuart of askoege contra steuart nf arnhome . eodem die . ninian steuart as heir to his father askoege , pursues reduction of a transaction of a tack , which tack was assigned to him by his wife , and by him transferred to iohn steuart heir of a former marriage . the reason of reduction was , because the translation was on death-bed , in prejudice of the heir . the defender alleadged absolvitor , because the pursuer is witnesse in the translation , which imports his consent . the pursuer answered that subscribing as witnesse , could import no more , but that the witness saw the party subscribe , but did not obliege to take inspection of the contents of the write . ly . the pursuer when he subscribed was minor . the defender answered , that in this case , the subscribing as witness behoved to import consent , because that very subscription it self by the father , being sick , did import a deed done on death-bed ; especially it not being a testament but a writ , inter vivos ; and for the minority , the pursuer was in confinio majoris aetatis , and suffered the defender to possess twenty years , long after his anni utiles was past . the lords found the subscription , as witnesse in this case to import consent , and being quarreled inter annos utiles , they found sufficient to a minor , though in confirmation . gordon contra frazer . iuly . . gordon having confirmed himself executor creditor to forbes of auchinvil , pursues 〈…〉 frazer his relict for delivery to him of the moveables , who alleadged absolvitor , because the moveables upon the mayns of achnivil , were disponed to her by her umquhil husband . it was answered , that the disposition was simulat , inter conjunctas personas retenta possessione , and therefore null . it was duplyed , that the disposition was upon an onerous cause without simulation , because it bears to be in respect that by the defuncts contract of marriage , he is oblieged to infeft his wife in five chalder of victual out of auchnivil , for the aliment and intertainment of his younger children , till the age of fourteen years ; and because he was necessitate to sell that land , therefore he disponed the moveables in leu thereof , which is also instructed by the contract of marriage . the pursuer answered , that this is but a provision to children , and could not be preferred to the defuncts creditors , especially being a provision before the children were existent , and if such should be allowed , it were easie upon such latent provisions , in favours of children to prejudge creditors . the defender answered , that if the pursuers debt had been anterior to the contract of marriage , he might have had ground upon the act of parliament . but this debt was posterior to the contract , and there was no reason to hinder a parent to provide his children , and dispone moveables to him in satisfaction thereof . the pursuer answered , that both being yet but personal obliegements , not having obtained effectual possession ; the creditor though posterior , must be preferred to the children , especially if the defunct have not sufficient estate to pay both . ly . the disposition is upon a false narrative ; because the lands of auchnivil are yet undisponed . the lords found that the childrens disposition ought to be preferred , unless the father were insolvendo at his death : in which case they preferred the creditors , though posterior ; and likewise found the alleadgence relevant , that the narrative was false , and so the disposition without a cause . isobel mow contra dutches of bucleugh . iuly . . the said isobel having served heir to william mow , her grandsyre charges the dutches as superiour , to receive her ; she suspends , and compearence is made for certain persons , to whom the chargers father had disponed the lands in question , who raised reduction of the defenders retour and infeftment , upon this reason , that the retour was null , serving the charger heir to her grandsyre , as last vest and seased , whereas they produced the infeftments of their uncle and father , as heirs to their grandsyre in these lands ; and therefore instructed that her grandsyre dyed not as last invest and seased , as of fee , but her father their author . it was answered for the charger , that the retour could not be taken away , hoc ordine , by reduction , but behoved to be by a summons of error , for reducing the service by an inquest of error , to be pursued in latine , by a precept out of the chancellary . it was replyed , that there needed no service of error , but the retour and infeftment might be reduced , unless there had been the question of propinquity of blood , of a nearer heir , which might have made the inquest an assise of error , which could not be in this case , seing the inquest had done their duty , who 〈…〉 produced one of the grandsyres seasine found him to have dyed last vest and seased , as of fee , and neither could know , nor was oblieged to know , that there was a posterior infeftment to the defenders uncle or father . the lords found the reduction receivable , hoc ordine . hamiltoun contra a dumb man in glasgow . iuly . . this dumb man having right to an annualrent of twenty pound yearly out of a tenement in glasgow , thereupon 〈…〉 hamiltoun his creditor having arrested , and obtained decreet for payment of this annualrent , in satisfaction of the dumb-mans debt . it was alleadged for the person whose bond was lyable for the annualrents , absolvitor for five years thereof , because he had payed these years to the dumb-mans sister by his consent , in so far , as he delivered the money to the sister in presence of the dumb-man , and obtained her discharge thereupon , in his name ; subscribed also by him , with the initial letters of his name . it was answered , non relevat , because the discharge bore not that the dumb-man received the same , but his sister : and bears that she is obliedged to warrant it at the dumb-mans hand , and his presence , and seing of money delivered , and his subscription cannot import his consent , because he being dumb could not know what the extent of the sum was , nor whatfor years it was . the lords repelled the defense in respect of the reply . mr. thomas kirkcaldy contra mr. robert balcanquhil , and heretors of tranent . eodem die . the heretors of tranent raised a double poynding against mr. robert balcanquhil , on the one part , and mr. thomas kirkcaldy , on the other part , both claiming the stipend of tranent , . it was alleadged for mr. robert balcanquhil , he ought to be preferred , because he was minister at tranent , by presentation , and collation , long anterior to mr. thomas kirkcaldy ; and albeit he was deposed in anno . yet he was reponed by the bishop of edinburgh , and synod of lothian , in october . because of that narrative , that he was unlawfully deposed in anno . and so being reponed before martinmass . he thereby must have right to the half , due at martinmass . it was answered for mr. thomas kirkcaldy , that balcanquhils repossession being after michaelmess , . which is the legal term of stipends , and he having served till that time , by a title standing , reposition can operat nothing before its date , and so cannot reach to michaelmass term : the lords preferred mr. thomas kirkcaldy to the hail year . william hay contra iohn nicolson . iune . . john nicolson having granted an assignation in anno . of a bond granted to him by iames crightoun , sheriff of nithisdail , principal ; and umquhil william livingstoun cautioner , the name of the assigney was left blank till . at which time william hayes name was filled up , and which assignation contained a clause of warrandice against all deadly , as law will : william hay having used execution on the assignation , against the principal and cautioner in the bond , returns upon the warrandice , and charges nicolson , who suspends on this reason , that the clause of warrandice , as it is conceived in the assignation , could import no more , then that the debt assigned , was a real debt resting , and not to be evicted by any other right , especially seing it did not bear expresly , to warrand it to be good , valide and sufficient , which might infer to warrand , not only that the assignation should clear the right of the debt , but that the debitor should be solvendo . and secondly , considering that there is no onerous equivalent cause for granting the assignation , nicolson the creditor might have discharged , livingstoun the cautioner , and given him an assignation , that he might thereupon charge the principal . the charger opponed the clause of absolute warrandice , which have ever been esteemed to reach to the debtors , being solvendo . the lords found the claúse thus concieved , could not extend to the sufficiency of the debtor . thomson contra reid . iune . . james thomson in cryle having appryzed certain tenements in edinburgh , from iames sinclar , pursues iames reid , as one of the possessors , for mails and duties , who alleadged that he had bruiked by tack from iames sinclar , before the appryzing ; which tack bare . pound of tack duty , and to continue for seven years , and bare expresly a provision , that the said iames reid should retain the annualrent of . merks adebted to him by sinclar , as a part of the tack duty , and that he should not be removed , untill the said . merks were payed . the pursuer answered , that the alleadgence was no way relevant , to accompt the payment of the . pounds of tack duty to the pursuer , out of which the defender could have no retention of his annualrent , because that is but a personal provision , adjected in the tack , and no part of the tack , and can work no more , then if such a provision had been made out of the tack , in which case it would only have been a part of the tack duty in compensation of the annualrent , as an assignation , would not be effectual against a singular successor , and would endure no longer then the land was his , who assigned the duties ; so now the land ceassing to be sinclars , the assignment or alocation thereof , to be retained for satisfaction of the annualrent , is not relevant against this appryzer , no more then that part of the clause , by which the defender is provided , not to remove till his sum be payed , which was never sustained to be effectual against a singular successor . the defender answered , that this defense stood relevant , because the clause of retention , is adjected immediatly to the tack duty , and so is as a part thereof , and so is real and effectual against a singular successor , because if sinclar had set the tack for a grot , it would have been valid ; and therefore might more set it for the satisfaction of the annualrents , and so much duty further . the lords sustained the de●ense , that seing there remained a tack duty , over and above the retention of the annualrent , and that the tack had a particular ish of seven years , that it was valid ; but found the case dubious , if there had been no tack duty over and above the annualrent ; but that the land had been either set expresly for satisfaction of the annualrent , or for such a sum equivalent thereto , to be retained : in which case the tacks would want a tack duty to the present here●or ; but they ●ound the clause , for not removing till the mony were payed , but only to be personal , and not effectual against a singular successor . murray contra the executors of rutherfoord . iune . . james murray pursues the executors of katharin rutherfoord , wife to doctor guild , to pay a legacy of . merk , left by katharin in her testament to iames , in these words , i leave to iames murray . merks , whereof . merks is in his hand , due to me by bond ; which bond i ordain to be delivered up to him , and four more , to be payed to him . the defender alleadged , that they could be oblieged no further then to discharge the bond of . merks , with warrandice from their own deed. the pursuer answered that the bond belonged to doctor guild the husband , jure mariti , and was recovered by his heirs and executors , already from the defender ; and therefore this being legatum rei alienae . the defender behoved to make it effectual , and to pay it out of the defuncts free moveables , especially seing . merks was left , and the adjection was but the destination of the manner of payment of it , by liberation ; and which failzing , the principal legacy stands , and must be fulfilled and adduced , a decision the last session , betwixt contra whereby a legacy of a heretable bond was ordained to be made up by the executor , out of the moveables . the defenders answered , that their defenses stood yet relevant ; for legacies being poor donations , did not carry warrandice , so that a thing legat being evicted , the legator had it but cum peri●ulo , and that in the law , legatum rei alienae est praestandum ; because legacies being favourable , whereby the testator leaves there expresly , under the name of that which belongs to another , his meaning is extended , to purchase that , or the value thereof to the lagator ; but where he leaved it as his own , and his knowledge of the right of another , appears not there , as in all donations , the legator hath it upon his peril , without warrandice ; as if a testator should leave a bond , or sum , to which he had right by assignation , if it were found that there were a prior assignation intimat , and so the sum evicted , the lagator would have no remeid : or if he left a sum due by a bond , defective in some necessar solemnity , as wanting writer and witness , such bond failing , the legator could not return upon the executor , and for the instance of an heretable bond , that is not alike , because it was not res aliena , but propria testatoris , though not test●ble . the pursuer answered , that legacies were most favourable , and ever extended , and that this was lega●um re alienae & ex scientia testatoris , for the testatrix that a bond conceived in her name , during the marriage , would belong to her husband , jure mariti , at least she was oblieged to know the same , for s●ire & scire debere , parificantùr in jure . the defender answered , that the action hold not in mulieribus presertim ubi questio est in partibus juris ; as in this case the testatrix was , and might be ignorant of the extent of the jus mariti● . the lords repelled the defenses , and sustained the libel and reply , to make up the palpable and known law , that the testatrix was repute , as knowing the same , and that having a half of her husbands goods , testable by her , she might leave the sum as a part of her half , that there was no necessity to devide every sum , but the whole , as many co-executors discharging a bond , the discharge is relevant , not only for that co-executors part , but for the whole bond , if that co-executors part exceeded the value of the bond , but the lords did not find that the executors behoved to make up every legacy , that were evicted , or that they were lyable , de evictione . tulliallan and condie contra crawfoord . eodem die . tvlliallan and condie pursues a declarator of an appryzing , led against them , as satisfied and payed within the legal , by intromission , and as an article , adduces a discharge of a part of the sum appryzed . the defender alleadged , that the alleadgence was not now competent , because it was res judicata , before the lords of session , in anno . where the same alleadgence being proponed in a suspension . the lords found not the same instructed ; and therefore found the letters orderly proceeded , yet conditionally superceeding execution of the decreet , till such a day , that in the mean time , if the same were instructed ; the instructions should be received , and nothing was produced during that time , so that it cannot be received more , then . years thereafter to take away an appryzing cled with long possession , and now in the person of a singular successor . the pursuer answered , that his declarator founded upon the said article , was most just and relevant ; it being now evident , that the sum appryzed for , was payed in part , and as for the point of formality , albeit in ordinary actions , where terms are assigned to prove , and so a competent time granted to search for writs , if certification be admitted regularly , it is valide , and yet even in that case , the lords will repone , upon any singular accident in a suspension , ubi questio non est de jure , sed de executione . the lords would not delay execution , unless the reasons be instantly verified . yet in petitione , will not take away the right . the lords sustained the defense , and would not sustain the foresaid article , in respect of the decreet , in foro contradictorio , though in a suspension here , there was no alleadgence that the writs were new come to knowledge , or newly found , nor could be , because it was alleadged one in the decreet . mr. iohn hay . contra the collectors of the vacant stipends . iune . . the parochiners of manner , which is a pendicle of the parsonage of peebles , being charged for the stipend of the year . suspends upon double poynding , and calls the ministers collectors of the vacant stipends , and the parson of peebles ; the minister alleadged that he was presented by the parson of peebles patron , in august . after which he continued to preach at the kirk , and was still upon his tryals till he was admitted in october . and therefore the whole years stipends . belongs to him , because the legal terms of teinds and stipends , is not as of other rents , whitsonday and martinmass , but one term for all , viz. the separation of the fruits at michaelmess ; and therefore if he had had right to the drawn teind , he might have drawn the whole , so the whole tack duty must belong to him . it was alleadged for the parson of peebles , that this kirk being a pendicle of his parsonage , and some time served for a less , and some times for a more stipend , as he agreed ; it is not a fixed stipend , but as a helper , and therefore the vacancy thereof belongs not to the collector of the vacant stipends , but returns to the parson who has right to the whole fruits of the benefice , by his right of presentation and collation . it was alleadged for the collectors of the vacant stipends , that his stipend was not as the allowance of an helper , but was a several congregation , separate from the parsonage of peebles , and at the parsons presentation , and that no helper has a presentation , and that the incumbent , not being admitted till after michaelmess , has no right to any part of the fruits of that year , though he was presented before , because the kirk cannot be said to be full , but vacant , till the minister be admitted . the lords found that this kirk having a presentation , could not return in the vacancy to the parson of peebles , and that the presentation being at lambas , and the incumbent serving at the kirk , and entring to his tryals immediatly , till he was entred , which was in october thereafter , and that he had right to the half of that years stipend , not being presented before whitsonday , and found the other half to belong to the collector of vacand stipends . lairds of tulliallan and condie contra crawfoord . eodem die . the lairds of tulliallan and condie , as having a right from him , pursues declarator of the expiration of an appryzing , led at the instance of crawfoord , to which margaret crawfoord his daughter , has now right , and condescends that the sum appryzed for , was satisfied within the legal by compensation , in so far as tulliallan had right to a contract , whereby crawfoord the appryzer was oblieged to deliver so many chalders of coal weekly , or in case of failzie , four pounds for ilk chalder . it was alleadged for the defender , that this article of compensation ought to be repelled : first , because the said contract is prescribed . ly . the appryzing proceeded upon a decreet of compt and reckoning , wherein an alleadgence being founded upon the same contract , was past from , pro loco & tempore , and so can never now be made use of , to take away that decreet , much less the appryzing against a singular successor , who seing the same past , in tuto , to take right without the hazard thereof . ly . the defender cannot be oblieged after fourty or fifty years time , to prove the delivery of an yearly duty of coal . ly . the compensation is not de liquido in liquidum , because the one is a personal contract , the other is an apprysing and infeftment ; the one hath not a liquid price constitute , but bears expresly , such a sum in case of failzie , and not as the price , which being much more , then the ordinar price then is but a personal failzie , which cannot be liquidat till declarator , and modification of a judge . the pursuer answered , that he was evicting the rigor of an appryzing , in causa maxime favorabili . and as to the first alleadgence anent the prescription , offers to prove interruption by arrestments , &c. to the second not relevant , according to the custome , before the years . competent and omitted , was not relevant against decreets of suspension ; but suspenders might either omit , or pass from their reasons , and suspend upon them again , which could not but be alswell effectual against the assigney as the cedent . as to the third , this article being instructed by writ , no presumption , nor less time then prescription , could take it away . to the which , the coals having a liquid sum in lieu thereof , the article is liquid , and as payment within the legal , will annul an appryzing , so will compensation , which is equiparat in law , though the case would not be alike in a wodset , against a singular successor . the lords found the defenses against this article relevant , viz. that the article was not liquid by a sum , constitute expresly for a price , and that it being alleadged , that in the decreet this alleadgeance was past from , and an expresse reservation , that it might be made use of against any other just debt , then that which was in the decreet , whereupon the appryzing proceeded . the lords had also consideration , that the legal of the appryzing was not yet expired . lyon of muirask contra laird of elsick . eodem die . lyon of muirask pursues the laird of elsick upon a debt of his fathers , as successor titulo lacrativo . the defender alleadged absolvitor , because any disposition he had from his father , was in his contract of marriage , whereby ● merks of tocher was received by his father , and . merks of debt more , undertaken for his father , with the burden of his fathers liferent . the pursuer answered , the alleadgeance ought to be repelled , because he offered him to prove , that the land disponed , was then worth fourty or fifty chalders of victual , so that the cause onerous was not the half of the value ; and therefore as to the superplus , he was lucrative successor . the defender answered , that any onerous cause , or price , though incompetent , was enough to purge this passive title , and albeit the pursuer might reduce the right , and make the lands lyable , because the cause was not onerous and equivalent , yet he could not be personally lyable in solidum , for all the defuncts debts . the lords having seriously considered the bussinesse , after a former interlocutor the last session , assoilzing from the passive title , but finding the lands redeemable by the pursuer , or any other creditor , for the sums payed out , did now find further , that the defender was lyable for the superplus of the just price of the land , according to the ordinar rate the time of the disposition , and that the superplus over and above what he payed or undertook , ought to bear annualrent , as being the price of land. iames iustice contra earl of queensberry . eodem die . iames iustice as having right to a bond of . merks , due by the earl of queensberry , pursues the earl , and the lord drum●anrig his son , as taking his estate , with the burden of his debt , to pay it ; who alleadged no processe , because the pursuers right was an assignation , granted by a tutrix , not bearing in name of the pupil , or as tutrix , in his name , because being in infancy he could not subscribe : but bearing to be done by her , as taking burden for the pupil . the lords found the assignation not formal , not bearing the pupil disponer with his tutrix , but yet found the letters orderly proceeded , the charger before extract , producing a ratification by the pupil and tutrix formally done . laird of prestoun contra nathaniel ebred . iune . . the laird of prestoun pursues reduction and improbation , against nathaniel ebred , of all his rights of certain lands . the defender alleadged absolvitor , because the lands in question are abbay-lands , erected in a temporal holding , in favour of prestoun ; and therefore by the act of parliament , . all such lands are annexed to the crown , and the feu-duties are only found due to the lords of erection , ay and while they be redeemed , which is repeited in the . act of parliament , . and therefore the pursuer not being superiour , but the king , he has no interest to improve of reduce . the pursuer answered , that he opponed his infeftment of the lands holden of the king , with the kings advocats concurse . the defender answered , that the advocats concurse was but ex stilo curiae , and he could make no concurse sufficient , for any improbation and reduction , without the kings special order . the lords found the defense relevant and assoilzied , at which time it was remembred , that sir thomas hope insisting in an improbation of his good-son , the same was not sustained , because it wanted the kings expresse order . town of cowper contra town of kinnothy . eodem die . the town of cowper having charged the town of kinnothy to desist from merchant trade . they suspend , and alleadge , that they have the priviledge of burgh of barony , in keeping hostlers , and selling wine . the charger answered , that selling of wine is one of their chiefest and expresse priviledges . the lords considering , that this dipped upon the controversie , betwixt burgh royal and burgh of barony , which has remained undecided these thirty years , would not discusse this particular , but found the letters orderly proceeded in general , ay and while the defenders found caution to desist from merchant trade , without determining how far that reached . moffet contra black. eodem die . there being a bargain betwixt the said moffet and black , for some packs of plaids , by which it was agreed , that the buyer for satisfaction of the price , should give assignation to certain bonds exprest ; but there was no mention what warrandice . at the discussing of the cause the seller craved absolute warrandice ; and alleadged , that seing it was not communed , that it should be a restricted warrandice , it behoved to be an absolute , being for a cause onerous , and for the price of the goods . ly . seing the agreement required an assignation in writ , to bonds ; the buyer might , re integra resile , seing neither the plaids nor bonds were delivered . the lords found that thē buyer , who insisted , behoved either to give absolute warrandice , that the bond was not only due , but should be effectual , and the creditor solvendo , otherways they suffered the seller to resile , especially seing the bargain was not made first by words , absolute for such a price , and afterwards that it had been agreed to give such bonds for that price ; in which case the bargain , though verbal , would have stood . alexander falconer . contra mr. iohn dowgal . eodem die . alexander falconer pursues mr. iohn dowgal , for payment of . merks , left in legacy by umquhil iohn dowgal , by a special legacy of a bond , adebted by the earl of murray , whereupon he conveens the earl as debitor , and mr. iohn dowgal as executor , for his interest , to pay the special legacy . the exceutor alleadged , that the sum belonged to him , because he had assignation thereto from the defunct , before the legacy . the pursuer answered , that hoc dato , there was sufficiency of free-goods to make up this legacy ; and albeit it had been legatum rei alienae ; yet being done by the testator scienter , who cannot be presumed , to be ignorant of his own assignation , lately made before , it must be satisfied out of the rest of the free-goods . which the lords found relevant . duke and dutches of hamiltoun contra scots . eodem die . duke and dutches of hamiltoun , being charged for payment of a sum , due to umquhil sir william scot of clerkingtoun , and assigned by him to his four children , alleadged that by act of parliament commission was granted for deducing so much of his creditors annualrents , as should be found just , not exceeding eight years ; and therefore there could be no sentence against him , as to that , till the commission had decyded . the pursuers answered , that these annualrents were not due for the years during the time the duke was forefault by the english , which ended in anno. . and they insist but for the annualrents since that year . it 's answered for the duke , that albeit he had payed many of these years annualrents by force of law , then standing , yet that could not hinder the deduction , but that he would have repetition or deduction , in subsequent years . the pursuers alleadged , he behoved to seek the heir for repetition , and could not deduce from them . the lords in respect of the commission , would not decide nor discuss the alleadgence , anent the years annualrent , but superceeded to give answer , till the commission had determined , even till seven years after the forefaulture , to make up these that was payed before . in this process , compearence was made for sir laurence scot , the heir and executor dative , who alleadged that there was . merks of the sum belonged to him , because his fathers assignation to the children , contained an express division of their shares , which was so much less then the hail sum assigned . the children answered , they opponed their assignation , which bare expresly an assignation to the hail sum , and bond it self : and albeit the division was short , it was but a mistake of the defunct , and cannot prejudge the assigneys . which the lords found relevant . george melvil contra mr. thomas ferguson . iune . . george melvil pursues mr. thomas ferguson his step-son for the value of his aliment , after the mothers decease . the defender alleadged● absolvitor , because the defunct was his own mother , and he had no means of his own , and it must be presumed that she entertained him free , out of her maternal affection , and that his step-father did the same , after he had married his mother . the lords sustained the first part of the defense , but not the second anent the step-father after the mothers decease . alexander allan contra mr. john colzier . eodem die . alexander allan pursues mr. iohn colzier , to pay a sum of ninety two pounds , adebted for the defenders mother , and that upon the defenders missive letter , by which he oblieged him to pay the same the defender answered absolvitor , because by the missive produced , he offered him to become the pursuers debitor , for the sum due by his mother , being about ninety two pounds ; but by a postcript , requires the pursuer to intimat to him , or his friends at falkland , whether he accepted or not , which he did not then till after the defenders mothers death , and so it being a conditional offer , not accepted , is not binding . which the lords found relevant and assoilzied . cauhame contra adamson . eodem die . thomas cauhame having appryzed a tenement in dumbar , from ioseph iohnstoun , pursues iames adamson to remove therefrom , who alleadged absolvitor , because this apprizer could be in no better case , then iohnstoun from whom he appryzed , whose right is affected with this provision , that he should pay . pounds to any person his author pleased to nominat ; ita est , he hath assigned the right to the defender , so that it is a real burden affecting the land , even against this singular successor , and included in his authors infeftment . the pursuer answered , that albeit it be in the infeftmen , yet it is no part of the infeftment , or real right , but expresly an obliegment to pay without any clause irritant , or without declaring that the disponers infeftment should stand valid , as to the right of that sum. the which the lords found relevant , and repelled the defense , but superceeded execution until some time that the defender might use any means he could for making this sum to affect the land. farquherson contra gardiner . eodem die . mr. iames farquherson having obtained a decreet of spuilzie , against iohn gairdiner and others . gairdiner suspends on this reason , that he medled with the goods in question , as a souldier in a party in arms , being then in the regiment of the master of forbes , under the command of the earl of midletoun , and therefore is freed by the act of indemnity . the charger answered , that he oppons the act indemnifying only these who acted by warrand of any committee of estates , or commander , or other authority , so that it is not relevant , unless the suspender alleadge , that as he was a souldier in arms , so he had such warrand , and did apply the particulars to the publick use , under which he served : and it is offered to be proven , that he took the goods lybelled to his own house , and made use of them to his privat use . the suspenders answered , that this reason stands relevant as proponed , because it is clear by the act of indemnity , that all things done under any pretended authority or command , are indemnified ; and therefore there is a special exception of privat thefts and robberies , which confirms the rule as to publick pilledging in any war , and if there were a necessity to every person to instruct the command , or warrand of his officer , which was not accustomed to be in writ , the whole act would be elusory ; so that it is sufficient , that the thing was done in the way of a publick war ; otherwise , all that was taken or converted to privat use , of those that were either with montrose or glencairn , might ly open to pursuits , notwithstanding of the act of indemnity . the lords after serious consideration of this , as a leading case , found the reason of suspension relevant , that the defender needed not to prove that he had warrant , but that the warrant was presumed , if he proved he acted with a party in war , against which , they would admit no contrary probation , unless it were offered to be proven by the defenders own oath , that he did without any warrant , converted the goods to his own privat use . margaret inglis contra thomas inglis . eodem die . margaret inglis having obtained a decreet before the commissars of edinburgh , against thomas inglis , for giving her security of . pounds in legacy , left in her fathers testament , and for payment of the annualrent of the said legacy . thomas suspends on this reason , that the legacy being left to be payed , the one half at the chargers marriage , and the other half at the death of the defuncts wife ; buire no annualrent , as neither doth any other legacy , much less this , being in diem incertum , which is equivalent to a conditional legacy : for if the defuncts wife had survived the legatar , or if she never marry , nothing will ever be due . the charger answered , that this legacy was in effect alimentar , though not expresly left eo nomine ; and therefore ought to be profitable , and that the lords had been accustomed to give annualrent in such cases , as in the case of the lady otter , and her daughters . the suspender answered , that the case was far different , these being lawful daughters , and their provisions being in lieu of an estate of land , and this charger being but a bastard , and come to that age that she may serve for her maintainance . the lords considering that the one half of the sum was payable at the time of the chargers marriage , being a condition in her own power , and that it was not favourable to put her to a necessity of marry : therefore they sustained annualrents for that half , but not for the other . brown contra lawson . iuly . . alexander brown having obtained a decreet against william lawson , as vitious intrometter with the goods of umquhil william lawson of new-milns , he suspends , and alleadges the decreet was unjustly given , because it beares , that he excepted upon a disposition , made by the defunct for an onerous cause , and an instrument of possession of the goods before his death . the charger answered , that the decreet did bear , that the suspender did judicially acknowledge , that there was no true delivery of the goods . the lords found this collourable title sufficient to purge the passive title of vitious intromission , providing the defender confirmed within four moneths , for they thought the defuncts disposition , in articulo mortis , was rather as a testament or legacy , in satisfaction of the defenders debt , then as actus inter vivos . iohn miln contra hoom. iuly . . john miln mason , having charged sir james home of eccles , for payment of a sum of money , due by bond , he suspended , and alleadged that he had the benefit of the act betwixt debitor and creditor , as to personal execution , seing he had payed a years annualrent , and had consigned a bond of corroboration , joyning the rest of the annualrents to the principal . the charger answered , the suspender could not crave the benefit of the act , because he had not found caution for the principal , and annual conform to the said act for his naked bond of corroboration , without caution , could not be interpret security . the lords found the suspender behoved to give security , either by caution or infeftment . ogilbie and grant contra ker. eodem die . there being a charge in the name of iames ogilbie and william grant , contra mr. andrew ker minister , on this ground , that by a minut of contract of alienation , ogilbie had sold to ker , certain lands , and ker was expresly bound by the minut , to pay this grant and others , in part of the price of the land , certain debts due by ogilbie to them . ker suspends upon this reason , that he had satisfied ogilbie , and obtained his discharge . grant answered , that by the foresaid clause , contained in the minut , he had acquired right to the sum , in satisfaction of his debt , which ogilbie his debitor could not take away , without his consent , especially seing the minut took effect ; and the suspender by his missive letters , after the date of this discharge , writ to the laird of pitmeddin , who was cautioner to grant , that he would satisfie the debt . the suspender answered , that the clause in favour of grant , who was no contracter , could not give him a right : first , because it was never a delivered evident to grant. ly . because it was but a mandat , whereby ogilbie the contracter , did order a part of the sum to be payed to grant , which ogilbie might recal at his pleasure , as he might have annulled the bargain , and destroyed the writ ; especially seing nothing had yet followed . and as for the letters , they were not written to grant , but to a third party . the lords found , that seing the bargain took effect , the clause in grants favour , was not a simple mandat , but a delegation , whereby ogilbie constitute ker his debitor , to be debitor to grant his creditor , which needed no intimation , being contracted by , and so known to ker himself ; and therefore found ogilbies discharge ineffectual . town of edinburgh contra lord ley and william veatch . july . . in a double poynding , raised by the town of edinburgh , against my lord ley on the one part , and william veitch upon the other . the ground whereof was this ; the town of edinburgh being debitor to umquhil dowglas of mortoun , in a sum of money , his son confirmed himself executor to his father , and confirmed this sum , which was arrested in the towns hands by william veatch , first ; and thereafter by my lord ley. it was alleadged for william veatch , that he ought to be preferred , having used the first diligence by arresting , several years before my lord ley , and having obtained decreet against the town , before the commissars , but before it was extracted , my lord ley obtained advocation . it was alleadged for my lord ley , that he ought to be preferred , because the sum arrested being due to umquhil dowglas of mortoun . there was never a decreet obtained at the instance of this executor , establishing it in his person ; and therefore this competition being betwixt william veatch , who was only the executors proper creditor , and not the defuncts creditor . the defuncts money ought to be applyed : first , to pay the defuncts debt , before the executors debt , albeit the executors own creditor had done the first diligence . the lords found , that the lord ley , as being creditor to the defunct , ought first to be preferred , seing now he appears before the debt was established in the person of the executor . nisbit contra lesly . eodem die . john nisbit , as assigney constitute by major drummond , charges lachlan lesly to pay four dollars for ilk souldier of sixty , conform to a contract betwixt major drummond and lodovick lesly , for whom lachlan was cautioner . lachlan suspends on this reason , that the charge is to the behove of francis arneil , who was conjunct cautioner , and bound for mutual relief , and therefore he can ask no more , then his share of what he truely payed in composition . the charger answered , that he nor francis arneil , were not charging on the clause of relief , but on the principal contract , as assigney : and though he had gotten assignation thereto gratis , he might crave the same , except his own part . which the lords found relevant . heugh kennedy contra george hutchison . eodem die . heugh kennedy as assigney by sir mark ker , to a bill of exchange , which was drawn by george hutchison , upon william schaw at london , payable to sir mark , for like value received from him , did obtain decreet against george hutchison and one schaw , as intrometters with the goods of william schaw , both for the bill it self , and for the exchange , and re-exchange ; the bill being protested for not payment . this decreet being suspended , it was alleadged that there could be no exchange , or re-exchange , nor any thing payed for the bill , because the bill was not lawfully protested , but being accepted by schaw at london , he shortly after dyed ; and it was protested at his house where he dyed , before none of his relations , having neither wife nor children . the charger answered , that he took instruments on the defense , and alleadged , that he needed not to prove the passive title . secondly , that he had done all that was requisit , having protested at the dwelling-house where schaw resided . the lords found , that in this case , that death interveening , which was an accident , there could be no exchange nor re-exchange , because this was no voluntar failz●e , nor fault ; but found that the charger , as assigney , might either take himself for the single value against the person drawer of the bill , or to his successors on whom it was drawn . earl of airly contra iohn mcintosh . eodem die . the earl of airly pursues iohn mcintosh for contravention , and lybels these deeds , that the defenders herds had been found pasturing several times far within his ground , for a considerable time : which ground was without all controversie the pursuers . the lords sustained the lybel , it being always proven , that the herd herded by his masters command , or ratihabition , and referred to themselves , at their conclusion of the cause , to consider , whether they would sustain the several times of hirding , as several deeds toties quoties , or if only as one deed made up of all , and how far the witnesses should be received , as to command , or direction of the defender . dumbar of hempriggs contra frazer . july . . hemprigs as executor to dumbeath , having pursued the lady frazer , relict of dumbeath , and the lord frazer for his interest , for payment of executory , intrometted with by the lady , there being litiscontestation in the cause : dumbeath calls the act , and craves the term to be circumduced against the lord frazer , who alleadged that now his lady was dead , and so his interest being jus mariti , ceased . it was answered , litiscontestation being made , the debt was constitute in the husbands person , as if he had contracted to pay it , litiscontestation being a judicial contract . secondly , the lord frazer was decerned to give bond to pay what his lady should be found due . frazar answered , that no bond was yet given , and that the ordinance was only against him as he was cited , which was for his interest , which is seassed . and which the lords found relevant and assoilzied . grahame of hiltoun contra the heretors of clackmannan . iuly . . grahame of hiltoun having obtained a decreet against the heretors of clackmannan , for a sum of money imposed upon that shire , by the commity of estates ; the heretors of the shire have raised a revew , and alleadged , that this decreet being obtained before the commissioners , in the english time , he has liberty to quarrel the justice thereof , within a year , conform to the act of parliament , and now alleadges , that the saids commissioners did unjustly repell this defense , proponed for singular successors within the said shire ; that they ought not to be lyable for any part of the said imposition , having acquired their rights long after the same , and before any diligence was used upon the said act of the committee . it was answered , that there was no injustice there , because this being a publick burden , imposed upon a shyre by authority of parliament , it is debi●um fundi , and affecteth singular successors ; especially , seing the act of the committee of estates was ratified in the parliament , . which parliament , and committee , though they be now rescinded , yet it is with expresse reservation of privat rights acquired thereby , such as this . the pursuer answered , that every imposition of this nature , though by authority of parliament , is not debitum fundi ; but doth only affect the persons having right the time of the imposition ; whereanent , the minde of the late parliament appeareth in so far , as in the acts thereof , ordaining impositions to be uplifted during the troubles , singular successors are excepted . it was answered exceptio firmat regulam in non exceptis , such an exception had not been needful , if de jure singular successors had been free . it was answered , many exceptions , though they bear not so expresly , yet they are rather declaratory of a right , then in being , then statutory , introducing a new right . the lords found singular successors free , and reduced the decreet pro tanto . earl of lauderdail contra wolmet . eodem die . the earl of lauderdail pursues a spuilzie of the teynds of wolmet , against major biggar , who alleadged absolvitor , because the lands of wolmet were valued and approven . the pursuer replyed , that the said decreet of valuation was improven , by a decreet of certification obtained there against , at the instance of swinton , having right to these teynds for the time , by a gift from the usurper . the defender duplyed , that no respect ought to be had to the said certification ; first , because this pursuer derives no right from swintoun , being only restored to his own right , and swintouns right from the usurper found null : so that as the pursuer would not be burdened with any deed of swintouns , to his prejudice , neither can he have the benefit of any deed of swintouns to his advantage . dly . the said certification was most unwarrantable , in so far as the decreet of valuation being in the register of the valuation of teynds , the defender was not oblidged to produce it , but the pursuer ought to have extracted it himself . dly . all parties having interest were not called to the said certification , viz. mr. mark ker the wodsetter , by a publick infeftment , in whose right major biggar , now succeeds . and last , the defender alleadged , that he had a reduction of the certification , upon minority and lesion , and the unwarrantable extracting of it . the pursuer answered to the first , that seing swintoun did use the pursuers right , all reall advantages which were not personal , but consequent upon the real right , and which belonged not to swintoun personaliter , but as prerended proprietar : do follow the real right it self ; and accresce to the true proprietar , as if he had acquired a servitude , or had reduced the vassalls right , ●b non solutum canonem . to the second , oppones the certification , wherein compearance was made , for wolmet , and three terms taken to produce , and no such defense was alleadged , as that the valuation was in a publick register . to the third , the pursuer needed not know the wodsetter , because it was an improper wodset , the heretor possessing by his back-bond , as heretable possessor , seing the decreet of valuation was at the heretors instance , it was sufficient to reduce it against his heir ; for it would not have been necessar to have called the wodsetter , to obtain the decreet of valuation , but the then heretable possessor : so neither is it necessar to call the wodsetter to the reducing or improving thereof . to the last , no such reduction seen nor ready , neither the production satisfied . the lords repelled the defense , and duplyes , in respect of the certification , which they found to accresce to the pursuer , but prejudice to the defender , to insist in his reduction , as accords ; and declared , that if the defender used diligence , in the reduction , they would take it to consideration at the conclusion of the cause . balmirrino contra sir william , dicks creditors . iuly . . james gilmor , for the use of the lord balmirrino , being infeft in the lands of northberwick , upon a right from sir iohn smith , who had right from sir william dick , pursues the tennents for mails and duties . compearance is made for sir williams other creditors , wodsetters and appryzers , who alleadged absolvitor , because the pursuers right is extinct , in so far as balmirrino being debitor to sir william dick , and charged by him , had acquired this right from sir iohn smith to compence sir william , and did actually compence him by alleadging the same reason of compensation , producing the disposition then blank in the assigneys name ; whereupon the letters were suspended simpliciter , aud my lord assoilzied ; and the disposition given up to mr. alexander dick , which is instructed by the testimony of william douny clerk at that time , balmirrino answered , first , that william dounys testimony , could not make up a minute of decreet , where there were no process , nor adminicle to be seen . dly though the minute of the decreet were lying before the lords , not being extracted , the lord balmirrino might passe from his reason of compensation , and take up his disposition , which is always permitted before litiscontestation , or decreet , and litiscontestation is never accounted untill the act be extracted : so that there being no act of litiscontestation extracted in the said process , but only an alleadged minute of a decreet without an act , neither partie might resile . dly , though the suspender might not resile simpliciter , yet it is still competent to him , to propone a several reason of suspension before extract ; being instantly verified : and now he propones this reason , that the debt awand by him to sir. william dick , is a publick debt , and the parliament has suspended all execution thereupon , till the next parliament ; which by consequence liberats him from making use of , or instructing his reason of compensation . the creditors answered , it was most ordinar for the lords , to make up minuts by the testimonies of the clerks , when they were lost . so that william douny being a famous clerk , his testimony must make up the minute , after which the lord balmirrino cannot resile from his reason of compensation , or take back the disposition ; seing it was his own fault he did not extract it , and cannot make use now of a supervenient exception , that was not at that time competent , in prejudice of their creditors ; balmirrino being now in much worse condition . the lords found , that the lord balmirrino might now propone a reason of suspension emergent on the late act of parliament and pass from his reason of compensation , and take up his disposition , seing it did not appear that the process was miscarried through balmirrino's fault , or that the disposition was delivered to mr. dick , neither of which did appear by william dounys testimony . thomas crawfoord contra prestoun grange . iuly . . thomas crawfoord , as assigney by the earl of tarquair to a decreet of the valuation of the teynds lethinhops obtained decreet against the laird of prestoun grange heretor thereof ; who suspended upon this reason , that these lands were a part of the patrimony of the abbacy of new-botle , which abbacy was of the cistertian order , which order , did injoy that priviledge , that they payed no teynds for their lands , while they were in their own labourage , or pastourage , of which priviledge , not only the abbots , but after them , the lord new-botle , and the defender hath been in possession : and accordingly sir iohn stewart of traquair having pursued the lord newbotle before the commissaries of edinburgh , in anno . for the teynds of the lands of newbotle , upon the same defense , was assoilzied , which decreet standing , must be sufficient to the defender , ay and while it be reduced ; likeas , the defender stood infeft in the saids lands by the king , with express priviledges decimarum more solito . the charger answered . first , that the foresaid priviledge , which sometime did belong to all monestries , was by pope adrian the fourth , limited to the cistertian order templars , hospitillars , and that for such lands only as they had before the lateran counsel : so that the suspender cannot injoy that priviledge . first , because he cannot instruct the lands to have belonged to the abbacy , before that counsel . ly , that being a priviledge granted to church-men , is personal , and cannot belong to their successors , being ley men , and albeit the said decreet , be in favours of the said lord newbotle , yet he was comendator of the abbacy , and so in the title of the order . the lords found the reason relevant , and instructed , by the said decreet , and suspended , for such part of the lands , a● were in the suspenders own hand . mr. william colvill contra the executors of the lord colvill his brother eodem die . mr. william colvill pursues the executors of the lord colvill his brother , for payment of . merk of portion , contracted to him by his brother , incase his brother wanted heirs male. it was alleadged , for the defender , absolvitor , because the contract is null , there being no witnesses designed therein , to the lord colvills subscription , but only two witnesses expresly subscribing as witnesses to mr. william colvils subscription , and other two undesigned , subscribing as witnesses , but not relating to any particular subscription . the pursuer answered , that he offered to designe , the other two witnesses which was always found sufficient to take away that nullitie . it were answered , for the defender , that albeit the designation were sufficient , in recenti , where the witnesses were on life , because use may be made of these witnesses , to improve the write , which could not hold in re antiqua where both witnesses were dead . the lords formerly found , that the designation was not sufficient , without instructing the write by witnesses , or adminicles , for which effect , the pursuer produced several writs , subscribed by the lord colvill , and by one of the two witnesses , that comparatione literarum might instruct the truth of their subscriptions ; and alleadged further , that this being a mutual contract , and unquestionably , subscribed by the one contracter , and being of that nature that he , whose subscription was unquestionable , did ingadge for a more onerous cause then the other . the lords compared the hand writs , and found them both alike , sustained the vvrite . the pursuer making faith that it was truely subscribed by both parties . hospitall of glasgow contra robert campbel . iuly . . the hospital of glasgow having appryzed the lands of silvercraige , they thereupon obtained decreet , which being● suspended , compearance is made for robert campbel in glasgow , who alleadged that he has appryzed the estate of lamont , from the laird of lamont ; and that the lands of silvercraige are a part and pertinent of the lands apprized by him , whereby he stands in the right of the superior , and offers to prove , that the lands in question , are waird , and that the appearand heir from whom the hospitall hath appryzed , is yet minor , and therefore the hospitall coming in his place , can be in no better case nor the minor ; but the course of the waird must run , during the appearant heirs minority . the charger answered , that the course of the waird cannot now run , because the lands are full , by the infeftment of the appryzer , who stands infeft , being received by a prior appryzer of the superiority , without any exception , or reservation of the waird duties . it was answered , for robert campbel , that george campbels appryzing of the superiority was , extinct , by satisfaction with the males and duties , before he received the hospitall , and so there is now place to the second appryzer , neither can the filling of the fee by the appryzer stop the course of the waird , which began before the appryzing ; albeit the appryzer be infeft simply ; seing all infeftments on appryzings , are in obedience , which never imports a passing from any right of the superiors , albeit he do not reserve the same ; and therefore he may make use of any right in his person , not only as to the casualities of the superiority , but as to the property , and his receiving in obedience , is only to give the appryzer anteriority of diligence . which the lords found relevant . sir. laurence scot contra . lady shenaltoun eodem die . in an act of litiscontestation , betwizt sir. laurence scot , and the lady shenaltoun ; a defense of payment being found relevant , scripto velj●ramento for sir laurence , and not having cited the lady , to give her oath , nor produced any write ; the term was craved to be circumduced . the lords did not circumduce the term , but found that the pursuer should have been still ready to produce his client to depone , if the defender made choise of his oath . elizabeth douglass contra laird of wadderburn . eodem die . elizabeth douglass , as heir to her goodsire , and sr. robert sinclar of loc●ermacus her husbands , pursue a spuilzie of teynds against the laird of wadderburn , who alleadged absolvitor , because he had tack of the teynds of the saids lands from the earl of hoom , and by vertue thereof , was bona fide possessor , and behoved to bruik , till his tack were reduced . ly . that he had right from the earl of hoom , by the said tack , which earl of hoom , albeit his right which he had , the time of the granting of the said tack , was reduced , yet he has sincepresently in his person , the right of the teynds of the lands from iohn steuart of coldingham , which being jus superveniens authori , must accresce to the defender , and defend him in this pursuit . the pursuer answered to the first defense , that the defenders bona fides was interrupted , by process against him , long before the years lybelled . ly . albeit there had been none , yet this author , the earl of hooms right being reduced in parliament , his bona fides being sine omni titulo ; is not sufficient ; neither needed the tacks-man to be called to the reduction , but his right fell in consequentiam with the granter of the tacks right . the second defense , it was answered , that the general maxime of jus superveniens , has its own fallancies , for the reason of the maxime is , that when any thing is disponed for a cause onerous , equivalent to the value thereof : it is always understood , that the disponer dispones not only what right he hath already , but whatever right he shall happen to acquire ; seing he gets the full value : and therefore sixione juris , whatever right thereafter comes in his person , though it be after the acquirers right , yet it is holden as conveyed by the acquirers right , without any new deed or solemnity , but where that reason is wanting , it holds not as first , if it appear , that the cause of the disposition is not at the full value ; then it is presumed , that the disponer only disponed such right as he presently had ; or if the disponer deduce a particular right : as an appryzing , or tacks . &c. and either dispons , but that right , per expressum , or at least dispones not for all right he hath or may have , or does not dispone with absolute warrandice ; in these cases , the authors right supervening , accresces not to the acquirer , but himself , may make use thereof against the acquirer , much more any other having right from from him . ly . the maxime holds not , if the authors right be reduced before he acquire the new right , in which case , the first right being extinct , nothing can accresce thereto , but the author may acquire any other new right , and make use thereof . ly , the maxime hath no place , if the author do not acquire a new right to the land , which could be the foundation and ground of the tack granted ; as if he acquired but the right of an annualrent , which could be no ground of the defenders tack , much more , if he acquire a right to the mails and duties of the lands , either upon sentence to make arrested goods furthcommand , or an assignation , or disposition of the mails and duties made to the author , for satisfying of a debt to him , by the disponer . this would be no right to the land that could accresce to validat a tack . the defender answered , first , that his first defense was yet relevant , because , albeit his authors right were reduced , he not being called , his right would be a sufficient colourable title , to give him the benefit of a possessory judgement , untill his bona fides were interrupted by process , because his subaltern right is not extinct , till either by way of action , or exception , it be declared extinct ; as falling in consequence , with his authors right reduced , seing there is no mention thereof in the decreet of reduction . ly albeit diligence had been used , yet if the user thereof insisted not , but suffered the defender , to possess bona fide seven year thereafter , it revives that benefit of a new possessory judgement . the lords , as to this poynt , found that the interruption of the bona fides by process , did still take the same away , unless it were prescrived , but found , that before any process , the defense should be relevant ; and therefore sustained only process , for the year , since the citation . as to the other defense in jure . the defender answered , that his defense stands yet relevant , notwithstanding all the fallacies alleadged which are without warrant in law , and without example with us , where this maxime hath ever been held unquestionable , that jus authoris accrescit successori , unlesse the successors right be expresly limited , to a particular right , or to any right the author then had , but the defender needs not disput the equivalence of the cause , unlesse such expresse limitation were , added there is no ground to presume an exception upon the personal oblidgment of warrandice , from fact and deed , which oftimes is put in contracts fully onerous , but on the contrair , there is a several defense upon that very clause : that the earl of hoom , whatever right he should acquire , yet if he should make use of it against this defender , he comes against his own warrandice , whereby he is oblidged , that he has done , nor shall do no deed prejudicial to the defenders tack , neither is there any ground of exception ; albeit the authors right was reduced , before the new right acquired from that ground , that the new cannot accresce unto the old right , being extinct , because the maxime bears , that it accresces successori , non jure successoris ; so that albeit the new right do not validat the old right : yet the new right becomes the defenders right , eo momento , that it became the authors right , per fictionem juris , without deed or diligence , and cannot be taken away by any subsequent deed of that author , more then if before such a deed , he had particularly established his successors therein ; because the fiction of the law is equivalent to any such establishment , neither is their any ground of exception , that the authors right superveening , is but an annualrent , which cannot validat a tack ; because , if the author were making use of that annualrent to poynd the ground , the defender upon his tack and warrandice would exclude him , because he could not come against his own d●ed and oblidgment ; yea , albeit it were but a right to the mails and duties , quocunque modo . the lords having considered the earl of hooms new superveening right , and that it was but the right of an annualrent of lib. starling , with a clause , that incase of failzie of payment , he might uplift the hail mails and duties till he were payed , and that the defenders tack included only personal warrandice . they repelled the defense , and found that such a right could not accresce to the defender , to validat his tack , wherein some of the lords had respect to that point that the right was reduced before this new right ; but others , as it seems , on better grounds layed no weight on that if the cause onerous , had been the full value , and equivalent , or if the tack had born for all right that i have , or shall acquire , which would accresce to the successor , as oft as ever it was acquired , though all the prior rights had been reduced , but in this case , the author not acquiring a new right to the lands , but only to the mails and duties , which in effect is but personal , it could not accresce to the defender , more then if the author had been factor to a thrid part by the new right , and albeit the clauses of personall warrandice might have personally excluded the earl of hoom himself , yet seing , that right could accresce to the defender , the earl of hoom having renunced , or assigned it to a thrid partie . the personal objection against the earl of hoom upon the personal clause of warrandice ceases , neither did the pursuer insist upon the earl of hooms right , but his own . elizabeth scrimgeor contra executors of mr. john murray eodem die . in a compt and reckoning betwixt elizabeth scrimgeor relict of mr. iohn murray minister , and his executors , these queries were reported to the lords by the auditor . first , whether the defunct dying infeft in an annualrent could have an heir , as to moveable heirship . the lords found he would , seing the annualrent was feudum , and he might thereby be esteemed as baro , as well as a petty fewer . quest. . whether the defunct , having died the day before martinmas . he would have right to any part of the stipend . as the annat . the lords found he would have the half of . quest. . whether he would have like right to the gleib , as to the stipend , by the ann. the lords found that could not be debaitable , betwixt the defuncts relict and executors , albeit there was no compearance for a new intrant in which case , they thought that so soon as the intrant 〈…〉 were admitted , he would have right to the manse and gleib , and not the defunct , though the defuncts wife would have right to a part of the stipend due after his entrie . quest. . whether the heretable debt could exhaust the moveable estate of the defunct , to deminish the relicts part , especially if their be no heretable debt due to the defunct , or if the heretable debts due by him exceed these due to him . the lords found , that seing the relict could have no benefit of heretable debts due to the defunct , being excluded by the act of parliament . renewed , . therefore she would have no detriment , by such heretable debt due by the defunct , whether they exceeded the heretable debts due him , or no. in this report , it falling into consideration , whether the ann would only belong to the wife , there being no children , or half to the wife , and half to the nearest of kin , they thought it would devide equally betwixt them , though it was not res●lv●d , whether it needed to be confirmed , or would be lyable to the defuncts debt . lady clerkingtoun contra stewart . iuly . . the lady clerkingtoun , pursues the heirs of umquhile david stewart son to the laird of blackhall , for the sum of merks due to her husband . it was alleadged , for walter stewart brother to the defunct , defender , no process , because the heir of lyne , of the defunct david stewart was not called , in so far as david , being the only son of the second marriage , and having neither brother nor sister of that marriage ; his heir of lyne could not be walter stewart , youngest son of the first marriage , but the heir of the eldest son of the first marriage ; according to craigs opinion , de successionibus . the lords found , that in this case , walter , as the next immediat preceeding , was both heir and of conquest , and not the eldest brother . in this process , it was also alleadged , that this sum was a clandestine fraudulent paction , contrare to the contract of marriage , betwixt the defunct david stewart , and the defenders daughter , whereby merks being contracted with her in tochar , and blackhall granted a proportionable liferent thereto ; yet under hand , without blackhalls knowledge his son was induced to give bond for this merk , to take away merk of the tochar : and it was remembred by some of the lords , that in the like case , a discharge of a part of a sons provision granted to his father , contrair to his contract of marriage was found fraudulent and null , by exception . the lords did not decyde , but rather desired the parties should agree , but thought this was an unfavourable act of dangerous consequence . petrie contra paul. eodem die . petrie pursues a removing against paul , who alleadged absolvitor because she possessed , by vertue of her infeftment . it was replyed , the infeftment was null , by exception● as following upon a contract of marriage which marriage was dissolved within year and day . it was duplyed , that the infeftment behoved to stand valid , being in recompence of her tochar , untill her tochar was repayed . which the lords found relevant , unless it were alleadged , that the tochar was not payed to the husband , but in her own hands , or her debitor . scot of braid-meadow contra scot of thirlstoun . iuly . . scot of braid-meadow pursues scot of thirlstain his curator , for compt and reckoning , who alleadged absolvitor ; because the pursuer having conveened the defender before the sheriff , to compt , and reckon , and to renunce his curatorie , he was ●hen decerned to renunce the office , and did compt for bygones . the pursuer answered , no respect to that decreet , because it was during his minority . in which time the defender had a competent defense , that he was not comptable ; and for the renunciation of the office. it was a great lesion to the pupil , which the curator should not have yeelded to , but proponed a defense against the same , that he could not pursue his curator to renunce , unless he had condescended , and instructed malversation . the defender answered , that he had just reason to suffer sentence , because his pupil was irregular , and medled with his own rents by force , and mispent the same . the lords , notwithstanding of the decreet , ordained compt and reckoning , and found , that the decreet could not liberat the curator , even for his omissions after , but reserved to the defender , before the auditor to condescend what deeds the pupil had done before , as being relevant pro tanto . alexander livingstoun contra heirs of lyne and daughters of the lord forrester . iuly . . alexander livingstoun , as assigney to a debt awand by the deceist lord forrester , having charged his daughters , and heirs of lyne and they renunced , whereupon he pursues adjudication ; compearance , is made for the lord forrester , who produced his infeftment , and alleadged the lands therein comprehended could not be adjudged ; because the defunct was denuded thereof , before his death ; and as he could stop the apparant heirs , if they were craving themselves to be entered heirs to their fathers , so the adjudger , in their place could not crave infeftment . the pursuer answered , the defense was not competent hoc loco , and the defender would not be prejudged by any infeftment , or adjudication , if he had sufficient right . and therefore , as in an apprysing , he might appryse omne jus , that the defunct had , and thereupon be infeft : so he hath the like benefit in adjudication , which hath been ordinarly sustained , periculo petentis . the lords sustained the adjudication , as to all right the appearand heirs could have had in the lands , but not as to the property , and therefore would not decern the pu●●uer to be infeft , but sustained the decreet of adjudication , that thereby he may have right to reversions , and clauses resolutive , or other personal clauses , which they thought would be sufficiently carried by the decreet of adjudication , without infeftment , and would not be prejudged by another adjudger , obtainer of the first ●nfefment , but this was besyde the ordinar course wherein adjudications use always to be granted periculo petentis , that thereby omne jus may be carried ; and as in appryzings , it hath been ordinarly found , that the superior must infeft the appryzer , to compleat his legal diligence , albeit●he superior instruct , that him●elf hath a right to the lands ; because his receiving of the appryzer , in obedience , will not prejudge his right , and it were unreasonable to force an appryzer , or adjudger to dispute the poynt of right● when all the writs and evidences are in their adversaries hands , and the creditors being meir strangers , who upon their appryzings , or adjudications can only have title to exhibition of the rights , and afterward be oblidged to dispute , but here the case was notour to many of the lords being near the town of edinburgh , that the lord forrester had infeft his goodson in his estate . lord loure contra lady craig . eodem die . lord loure being infeft in the estate of craig , pursues for mails and duties ; compearance is made for the lady craig liferenter , who alleadges she stands infeft , and in possession of the lands . the pursuer answered , that any infeftment ; as to that part thereof , that was not for fulfilling of the contract of marriage , was fraudulent , and in prejudice of lawful creditors , and so null by exception , conform to the act of parliament . it was answered for the lady . they opponed the lords dayly practique ever since the said act , that infeftments were never taken away thereupon by exception or reply . which the lords found relevant . montgomerie contra hoom. eodem die . william mongomery , pursues alexander hoom to remove , who alleadged absolvitor , because he stands infeft , and by vertue thereof , in seven years possession , and so hath the benefit of a possessorie judgement . it was replyed , that before any such possession , a decreet of removing was obtained against the defender , which made him mala fide possessor . it was duplyed , that since that decreet , which was in absence , the defender had possessed it seven years without interruption , which acquired the benefit of a new possessorie judgement . and alleadges that an interruption of possession ceases by seven years , albeit in the point of right , it ceases not till fourty . the lords found the interruption stands for fourty years , and that no possession thereafter , upon that same ground could give a new possessorie iudgment , the possession being interrupted , not only by citation , but by a decreet of removing , which stated the other partie in civil pessession . earl of sutherland contra mcintosh of conadge . eodem die . the earl of sutherland pursues mcintosh of conadge for the profit of a regality belonging to the earl. viz. blood-wyts , escheats . &c. whereof conadge had obtained gift from the usurpers , the time that regalities were supprest ; and declared that he insisted for those only that were yet unuplifted , for which the parties fyned had not made payment , albeit some of them had given bond. the defender alleadged absolvitor , for blood-wyts , and amerciaments , which might have been done by the justices of peace because , as to these , the inglish had done no wrong ; seing the justice of peace might then , and may now cognosce and fyne for blood-wyts , whithin the regality . the pursuer answered , that as he might have re-pleadged from the justice general , if he had not been impeded by the act of the usurpers , so much more might he have re-pleadged from the justice of peace , and therefore any blood-wyts decerned by them , belonged to him , as lord of the regality . the lords repel●ed the defense , and jo●nd the dead of the iustice of peace could not prejudge the pursuer . m. john muirhead contra iuly . . mr. john muirhead , as assigney pursuing he alleadged , that the assignation not being intimat before the cedents , death , the sum was in bonis defuncti , and the assigney could have no right without confirmation . the lords repelled the alleadgance . james johnstoun merchant in edinburgh , contra the lady kincaide november . . james iohnstoun pursues the lady kincaide , as executrix to her husband , who alleadged absolvitor , because the testament was exhausted , and she had obtained a decreet of exoneration , which being standing un-reduced , she behoved to be assoilzied , seing there was no reduction thereof raised . ly , albeit the said exoneration were quarrallable hoc ordine yet it appears thereby , that the testament was exhausted . the pursuer answered , that the first defense on the exoneration non relevat , unless the pursuer had been cited to the giving thereof ; it operats nothing against him , nor needs he reduce it . ly , the second member of the defense of exhausting the testament mentioned in the exoneration , non relevat , unlesse it were alleadged exhausted by lawful sentences , before intenting of the pursuers cause . the defender answered , that it was relevant to alleadge , that payment was made of lawful debts of the defuncts instructed by writ , before intenting of the pursuers cause , for seing the debt was clear , the executor ought not to multiply expenses , by defending against the same , unless it were alleadged there were collusion to prefer the creditors payed . the lords repelled both members of the defense , and found that the executrix might not , without a sentence prefer any creditor ; especially , seing it was not a debt given up in testament by the defunct , neither was it alleadged , that the pursuer had long neglected to pursue . nicolas murray lady craigcaffie contra cornelius neilson merchant in edinburgh . november . . nicolas murray pursues a reduction of a decreet of the baillies of edinburgh , obtained against her , at the instance of cornelius neilson upon this reason , that she being pursued for the mournings for her self and family , to her husbands funeralls ; which mournings were delivered to her , by the said cornelius , and were bought by her from him , or by her order sent to her ; which was referred to her oath , and she deponed , that cornelius had promised to his father , to give necessars for his funerals out of his chop , and according to that promise , had sent unto her . the baillies found , that this qualitie adjected in the oath , that the furniture was upon cornelius promise to his father , resulted in ane exception , which they found probable by write , or oath of cornelius ; who having deponed , denyed any such promise , and therefore they decerned , the lady to pay : against which her reason of reduction is , that she ought to have been assoilzied by the baillies , because her oath did not prove the lybel . viz. that she bought the wair from cornelius , or made her self debitor , therefore , but only that she received the same from him without any contract , or ingadgment , which would never make her debitor , for a wife , or a bairn in family are not lyable for their , cloaths , unless they promise payment , but only the father ; and in the same manner , the mourning for the funeralls of the husband is not the wifs debt , but the husbands executors . the defender answered , that the reason was no ways relevant , seing the pursuers oath proved the receipt of the goods , which was sufficient ad victoriam causa . the quality being justly taken away ; for albeit the husband or his executors were lyable for the relicts mournings , yet a merchant that gives off the same to the relict , is not oblidged to dispute that , but may take himself to the relict , who received the same without either protestation , or aggreement , not to be lyable . the pursuer answered , that whatever favour might be pleaded for a merchant stranger , yet this furniture being given by the defuncts own son to his relict , could not oblidge her . the son being the fathers ordinar merchant . the lords found , that the oath before the baillies proved not the lybel , and that the accepting of the mournings , did not oblidge the relict , but the executors seing the defunct was a person of their quality , that his relict required mourning and therefore reduced . galbreath contra colquhoun . eodem die . walter galbreath pursues an exhibition of all writs made by , or to his predecessors , ad deliberandum . the lords restricted the lybel , to writs made to the defunct , or his predecessors , or by them to any preson in their own family , or containing any clause in their ●avour , whereupon the defender having deponed , that he had in his hand a disposition of lands made by the pursuers predecessors , irredeemably ; and that he had his predecessors progress of these lands , but that he thought there was no clause in any of these writs , in the pursuer , or his predecessors favours . the lords having considered the oath , ordained the defender to produce the disposition , denunding the purs●ers predecessors , and thought that being produced simply , without condition of reversion , it liberat him from producing the pursuers predecessors progresse , though made in their favours ; but because the pursuer alleadged , that in their predecessors progress , there was a clause de non alienando , which would work in his favour , and that the oath was not positive , but that he thought . they ordained the defender to be examined , if he had any tailzie . daughters of balmirrino contra eodem die . the daughters of balmirrino having pursued the heirs male , for their portions contained in their mothers contract of marriage , and for a competent aliment untill the same were payed . the defender renunced to be heir , and was absent . the lords advised the contract , by which they found the portion payable at the daughters age of fyfteen , and aliment till that time , but no mention of annualrent , or aliment thereafter ; yet they found that the aliment behoved to be continued till their marriage , or the payment of their tochar : they being minors , and leised , by not pursuing therefore at the age of fyfteen , but that they could not have annualrent , seing the contract bare none . dame elizabeth fleming contra fleming and baird her husband . november . . in an accompt and reckoning , betwixt dame elizabeth fleming , and her daughter , and robert baird her spouse . the lords having considered the contract of marriage , in which robert baird accepted merk , in full satisfaction of all his wife could claim , by her fathers decease , or otherwayes ; and there being some other bands in her name , her mother craved , that she might be decerned by the lords , to denude her self and assigne to her mother ; seing she was satisfyed , and she on the other part , craved , that her mother and sir iohn gibson might be oblidged to warrand her , that her merk should be free of any debt of her fathers . it was answered for the mother , that there was no such provision contained in the contract , and the lords in justice could not cause her to go beyond the terms of the contract , there was no reason for such a warrandice ; seing debts might arise to exhauste the hail inventary . it was answered for the daughter , that there was no oblidgment in the contract , for her to assigne her mother , but if the lords did supply that as consequent upon the tennor of the contract ; they ought also to supply the other . it was answered for the mother , that there was no reason for her to undertake the hazard , unless it would appear , that there was so considerable adiminition of her daughters portion , in her favours , as might import her taking of that hazard for that abatement ; and albeit such a warrandice were granted , yet● it should only be to warrand the daughter from the fathers debt , in so far as might be extended to the superplus of the daughters full portion , above the merk . the lords found , that if there was an abatement in favours of the mother , it behoved to import , t●at she undertook the hazard of the fathers debt , not only as to the superplus , but simply ; but seing it was known to the lords : they gave the mother her choise , either to compt to the daughter for the whole portion , if she thought there was no benefit without any such warrandice , or if , she took herself to the contract , and so acknowledged there was a benefit . they found her lyable to warrand her daughter simpliciter . lochs and the earl of kincairdin contra hamiltoun . november . . hamiltoun and her authors , having obtained decreet against lochs , as heirs to their father , for a sum of money ; and annuals thereof , after compt and reckoning , and being thrice suspended , there are still decreets in foro , lochs , and the earl of kincardine now suspends again , and alleadged , that in the compt and reckoning , there were several recepts of annualrent , which were not at that time in lochs hands , but in the earl of kincardines , whose father was co principal bound conjunctly and severally with lochs father . the charger opponed her decreets in foro , and alleadged , that kincairdin had no interest , for neither could the letters be found orderly proceeded , nor yet suspended against him ; and whereas it was alleadged , that the clause of mutual relief , would force him to relieve the lochs prorata , he had a good defense , that they had not intimat to him the plea , and thereby had prejudged themselves , of the defense upon the ticket in his hands . the suspenders answered , they were minors , and that kincardin having a clear interest , might choise whether to defend them , or defend himself against them . the lords reponed them to the tickets now gotten out of my lord kincairdins hands , but declared there should be expense granted against them , for all the decreets to which the chargers were put . thomas guthrie contra sornbeg . eodem die . gvthrie pursues sornbeg , alleadging , that their being a first wodset of the lands of thriplandhill , and certain tenements in edinburgh , to alexander veatch , or his authors ; and a second wodset of the lands of thriplandhill granted to the pursuers father , and by a posterior contract . the pursuers fathers wodset was confirmed , and a certain sum added thereto , and for both , some tenements in edinburgh , were disponed with this provision ; that guthrie should possess thereby , and should be comptable for what was more then his annualrent , and sornbeg having redeemed the first wodset , and taking a renunciation thereof , and having right to the reversion of the whole , entered to the possession of the tenements in the town : whereupon guthrie craves , that sornbeg may compt and reckon for the mails and duties uplifted by him , and possess him in time coming , to the hail mails and duties , aye and while he be payed of his principal sum , and annualrents , or satisfied by intromission . the defender alleadged , first , that he having the right of reverson , though posterior , yet having , first redeemed , and made use thereof , his right of reversion by his disposition , being in effect an assignation to the reversion : and guthries second wodset being a prior assignation to the reversion . the second assignation with the first diligence , or intimation must prefer the defender . this the lords repelled , and found no necessity of an intimation , or diligence to consumat guthries right to the reversion of the first wodset , seing guthrie was infeft by his second infeftment , which was equivalent to the registrating of a formall assignation to the reversion . dly . the defender alleadged , that being singular successor ; and having redeemed the first wodset : which is now extinct , he possesses by an irredeemable right , and so must have the benefit of a possessory judgement . the lords repelled this defense , seing seven years possession was not alleadged . dly . the defender alleadged absolvitor , from the bygone mails and duties , before intenting of this cause , because , albeit he had not possessed so long , as to attain the benefit of a possessory judgement , which would defend him , not only for bygones , but in time coming ; till his right were reduced , yet before citation , he was bona fide possessor , & fecit fructus consumptos suos , which the lords found relevant . ly . the defender alleadged , that by the pursuers contract , he was to be comptable for the superplus of the mails and duties of the lands , more then payed his annualrent , and now the defender coming in place of the heretor , the pursuer is comptable to him for the superplus . the pursuer answered , that albeit he was comptable , he might detain those annualrents , and impute them in his principal sum. the lords having considered the contract , found the pursuer ought to be re-possessed , but that he could not detain the superplus , but that he behoved to be comptable yearly to the defender conform to the contracte . margaret mcgil contra ruthven of gairn . november . . margaret mcgil pursues a reduction of her first contract of marriage with umquhil patrick ruthven younger of gairn , upon two reasons , first , because it was post nuptias , and so donatio inter virum & uxorem stante matrimonio revocabilis . dly . because she was minor , and enorlie leised , in so far as she disponed to her husband , and the heirs of the marriage ; which failling , to his heirs lib. of money , and above ; and the half of some tenements in edinburgh , worthie lib. yearly in leiu whereof , her liferent was only of . or . chalders of victual , and of her own tenements ; but she did not ●etain to her self the liferent of the money , or any part of the stock , whereby she is leised in that , if the heirs of the marriage fail the money , and the lands goes to the heirs of the husband , and returnes not to hers , and that her provision being worth lib. she ought , at least to have had the double of the annualrent thereof in joynter . the defender answered to the first reason , that it was no way relevant , seing this was expresly a contract of marriage , although after the marriage there being no contract before it is alike , as if it had been before the marriage ; and to the second reason is not relevant , unless it were enorme lefion ; for there being no portion , or rule in tochars and joynters , but that some get a joynter equivalent to the aunualrent of their tochar , some half as much more , some double , and it being ordinar , that tochars are provided to the heirs of the marriage , which failling , to the mans heirs , here was no enorme lesion , or any thing extraordinar , although there were an equality . the pursuer being a burgess daughter , and her husband a gentleman of an ancient family , quality should be compensed with means . dly . the pursuer , since she was major had homologat the contract , by setting her joynter lands , and lifting the rent thereof . the lords having , before answer , heard probation of the provision , and of the joynture , and having at length considered the whole cause . they first repelled the defense of homologation , because the pursuer was not quarrelling what she got , but what she gave ; and therefore requiring rectification to have more . they also sustained not the first reason of reduction , and found the contract not to be a donation betwixt man and wife : and they found the second reason of reduction relevant , in so far as extended to an enorme lesion beyond the latitude of contracts of marriage amongst such persons , and therefore found it not relevant , to reduce the fee of the wifs provision , but found it relevant to add to her a further conjunct-fee ; and therefore rectified the contract , in so far as she had assigned her sums of money , without reserving her own liferent thereof : and found , that seing the fee returned not to her , she should have the liferent of her own portion , and her provision out of her husbands estate , which is eight or ten chalder of victual further . malcome scot contra laird of bearfoord . november . . bearsoord having borrowed merk from malcome scot in anno . by his contract , he is oblidged to pay the annualrent thereof , and the sum at certain terms , which contract bears , that for malcoms better security bairford sets to him certain aikers of land , for . bolls of victual yearly , at malcolms option , either to pay the bolls , or to pay twenty shilling less then the candlemess fiers . bairford alleadged , that malcolm ought to compt for the full fiars , and that the diminution of twenty shilling , was usurary , given malcolm more then his annualrents , indirectly by that abatement ; and therefore both by common law , and specially by the late act of parliament , betwixt debitor and creditor , that addition was void . it was answered , that there was here no usurary paction ; but it was free to malcolm scot , to take the lands by his tack● for what terms he pleased , and he might have taken it for half as many bolls , or at four merks the boll , for each boll which would have been valid . ly . the case of the act of parliament meets not , because that is only in wodsets ; here there is neither infeftment nor wodset , but a personal obliegement , and a tack . ly . there is a just reason to abate so much of the boll , because the tennent behoved to be at the expense of the selling thereof , and at the hazard of these that bought , if they failed in payment . the lords sustained the tack , without annulling the abatement , and found it not vsurary . halyburtoun contra porteous . eodem die . halyburtoun having married a widow in the potter-raw , there was no contract of marriage betwixt them , but he gave her first an infeftment in all the lands he had , the time of the infeftment , and thereafter he gave her a second obliegment , providing certain lands to him and her , and the heirs betwixt them , which ●ailzing , to devide betwixt their heirs : her heirs pursuing to fulfill this obliegment . halyburtoun alleadged it was donatio inter virum & uxorem , and now he revocked . which the lords formerly found relevant , unless the pursuer condescended , that this infeftment was remuneratory , for a proportionable provision , brought by the wife , and after condescendence , having considered what the wife brought , and what of it was before the first infeftment , and what interveened betwixt the first and the second ; albeit whatever fell unto the wife , was moveable , and would have belonged to the husband , jure mariti ; yet if it had been of that value , to have served both the first and second provision . they would have sustained both , as remuneratory in gratitude to the wife ; but they found no such thing condescended on , or instructed , and therefore they reduced the second provision . collin hay contra magistrates of elgin . eodem die . collin hay pursues the magistrates of elgin , for the debt of a rebel , escaping out of their prison . they alleadged absolvitor ; first , because it was in the time of richard the usurper . ly . the rebel escaped , by breaking through the roof of the prison , and they searched for him immediatly after . the lords repelled both defenses , seing the escape was in day light , during which the towns officer should guard the prison . elizabeth nisbet lady contra murray . eodem die . elizabeth nisbit pursues a poinding of the ground , of certain lands wherein she was infeft , by iames wood her husband . compearance is made for patrick murray , who alleadged that he is infeft by her husband , his debitor in the same lands , and ought to be preferred . it is answered for the lady , that she ought to be preferred , because both their annualrents being base ; albeit her infeftment be posterior ; yet her husbands possession being her possession , and she being infeft before patrick murray's infeftment was cled with possession , must be preferred . it was answered for patrick murray ; first , that a husbands possession should be the wifes possession , cannot be understood in an annualrent , because her husband never possessed an annualrent , but the property . this the lords repelled , and found the possession of the property , as jus nobilius , to contain the annualrents eminenter . ly . patrick murray alleadged that the husbands possession being the wifes , is only introduced in favours of contracts of marriage , favore dotis ; that because wives cannot possess , during their husbands life ; therefore his possession is accomp●ed theirs . but this infeftment in question is not founded upon the contract of marriage , but upon a posterior charter , of a different tenor. ly . patrick murray used citation before c●nd●esmess , next after the ladys infeftment , and thereupon obtained decreet in march , which must be drawn back to the citation . so that the husband could have no possession betwixt the ladys charter , and his diligence , there being no interveening term. it was answered for the lady , that this priviledge is allowed to wifes , that their husbands possession is theirs during their marriage , favore datis , which may be without a contract . ly . the husband being in present current possession , from the very date of the wifes seasine , his possession is sufficient to validate hers . the lords found the ladyes infeftment to be first validat by possession . it was further alleadged by patrick murray● that this infeftment was donatio inter virum & uxorem , not being founded on the contract of marriage , which was satisfied before , at least it is to the prejudice of him a lawful creditor , who was infeft before the lady ; and therefore seeing the ladys infeftment is so free and lucrative , both parties being now disputing the possession and power therein . the ladys infeftment cannot prejudge him . that the contract of marriage was satisfied ; he condescends thus , that the husband was oblieged to infeft his wife in certain lands , and to make them worth . chalders of victual , or otherwise at her option , to infeft her in an annualrent , ita est , she made her option , and was infeft in the property , after which she cannot return to this annualrent in question . it was answered for the lady , that the clause being conceived in her option , must be interpret her option not to receive the infeftment , but to enjoy either of the two she pleased . first , a seasine cannot import her choise , which might have been given by her husband , without her knowledge upon the preccept , contained in the contract of marriage , unless it were instructed , that she did accept the same by a seasine , propriis manibus , or otherwise ; and that her infeftment , was a valid effectual infeftment . ly . albeit that article of the contract of marriage , were satisfied by taking her choise ; yet she being thereafter infeft upon her charter produced , in her liferent lands , and in the annualrent in warrandice thereof , or with power to her to make use of the annualrent it self , principaliter , at her option , albeit her choice once made , will exclude her from the annualrent , principaliter ; yet not in so far as she is infeft therein , to warrand and make up the principal lands , which can be accounted no donation nor deed , in prejudice of a creditor , because it doth but make real and effectual the personal obliegement of warrandice● contained in the contract . it was answered for patrick murray , that this alleadgance non competent hoc loco , but he must only poind the ground , until the lady obtain a declarator , of what is defective of her liserent lands , but cannot come in by way of reply . the lords found , that the ladys acceptance of the liferent infeftment , satisfied the obliegement in the contract of marriage , and did not sustain the posterior charter , to give her any further choice ; but sustained the right of annualrent constitute therein , in warrandice of the liferent lands hoc loco , and ordained the lady to condescend upon the several rooms , what they payed , and what was wanting , that she might be preferred in the first place , and patrick murray in the second place . alexander livingstoun and schaw of scrnbeg contra lord forrester and creditors of grange . eodem die . alexander livingstoun , as assigney by mistriss margaret forrester and sornbeg her husband , to some debts owing to her by her father . the umquhil lord forrester having charged the remnant daughters , and heirs of line , craves adjudication of the estate of forrester and barony of grange , wherein the lord forrester died infeft . compearance is made for a creditor of grange , who produces a back bond , granted by the lord forrester to the laird of grange , bearing , that the infeftment was in trust to the use and behove of the laird of grange , and only to the lord forresters behove for relief of debts he should be ingaged in for grange● and alleadged that he being granges creditor ; and now insisting against grange , who has renunced to be heir for adjudging of the estate of grange ; for granges own debt he has good interest in this process , to alleadge no adjudication of grange estate , because it is only in trust , except in so far as may be extended to my lord forresters relief : and if the pursuer condescend upon any distress or ingagement , he will instantly relieve the same . the pursuer answered , that he being now in an anterior diligence to this party , ought not to be stopped in his diligence , but must be admitted to adjudge from the lord forresters heirs , whatever was in his person . and the other party may also proceed according to his diligence , to adjudge the back bond , and when he pursues thereupon , he shall have an answer . ly . there is no reason to stop the adjudication , and to force the pursuer to condescend upon my lord forresters● debts or interest , because a creditor cannot possibly know them ; and therefore adjudications are always granted , generally of all right the debitor had , and is the only ground upon which the adjudger can pursue the havers of the debitors rights , to exhibit and deliver them , and thereupon to found processes and condescendences , but cannot be urged to condescend before he obtain adjdication ; and also insinuat that he would take his adjudication , with the burden of the back bond : but some of his advocats resiled therefrom . the lords having considered the case amongst themselves , how dangerous it were , if the creditors , or persons intrusted , obtaining infeftment of an intrusted estate ; the back bond of trust being personal , would not exclude them : and albeit the person intrusted were not solvendo , as in this case the intrusted estate , as to the heirs and creditors , would be inavoidablie lost . and some being of opinion , that a personal exception upon a back bond , could not be competent to burden , or qualifie a real right , or an action for obtaining thereof : but the most part were of opinion , that albeit the right , if it were compleat , would be real ; yet this action for obtaining thereof , is but personal ; for real actions are such only which proceed upon real rights , and against the ground , such as upon annualrents ; and therefore this being a personal action , might be excluded , or qualified by a personal exception upon the back bond. and therefore they adjudged , with the burden of the back bond. earl of sutherland contra hugh gordoun . december . . the earl of sutherland pursues a declarator against hugh gordoun his vassal , that his right being holden feu , two terms has run into the third , and thereby the right is extinct , not only by the act of parliament , but by a particular clause in the defenders infeftment , at least in the disposition , whereupon his charter and seasine proceeds . there is also called an apprizer , who alleadged , that he being a singular successor and a stranger to his authors rights , during the legal unexpyred , is not oblieged to possess , and cannot omit his right by his authors fault , or by his own ignorance . the lords having considered this case , and reasoning amongst themselves , upon the difference of a clause irritant , in an infeftment feu , and the benefit of the act of parliament , they found that if the pursuer insisted upon the act of parliament , the defender might purge the failzie by payment at the bar , but if he insisted upon the clause in the infeftment , it behoved to be considered , whether that clause was in the real right , by the charter and seasine , either specially or generally , under the provisions contained in the disposition : or if it was only in the disposition . in which case , though it might operat against the vassal , or his heirs , yet not against the appryzer , unless the seasine had been immediatly upon the disposition . in which case the disposition serves for a charter . and therefore ordained the pursuer to condescend , and it is like , that in favours of the appryzer , being a stranger , they would suffer him to purge at the bar , utcunque in this cause , it was not found necessar to cite all parties at the mereat cross , albeit the letters bear so . veatch contra paterson . december . . paterson having set some lands to veatch in anno . the tack contained a clause , that the tennents should be relieved of all publick burdens ; and having left the land in . two or three years thereafter , he raised a pursuit against paterson the heretor , for payment to him of all the publick burdens he had payed out , and renews the same pursuit , and produces the receipts of the publick burdens , and alleadges that there was a penalty in the tack of an hundred pound , that he should possesse veatch , at the entry of the tack , wherein he failzied . the defender alleadged , that it must be presumed , that all the tickets and publick burden , was allowed in the rent , or otherwise past from by the pursuer , seing he voluntarly payed his hail rent ; or otherwise all the publick burdens in scotland , payed by tennent , may infer a distress upon their masters to repay the same . the pursuer answered , that that presumption could not take away his writ , viz. the tickets produced ; but if the defender gave discharges , he ought to have made mention of the allowance of the publick burdens therein . the lords having considered the case , as of importance for the preparative , found the defense upon the presumption relevant , unless the pursuer instruct by writ , or the defenders oath , that these tickets were not allowed in the rent : and as for the penalty , the lords found , that it ought to be restricted to the damnage , and that the same was not now probable otherwise , then by the defenders oath . iames wilson contra alexander home of linthill . eodem die . james wilson having pursued alexander home of linthill , as sheriff of the shire , for the debt of a rebel , whom he suffered to escape . in which , this defense was found relevant , that the rebel in the taking , had wounded these that were taking him , and had escaped vi majore , the laird of clerkingtoun contra the laird of corsbie● december . . sir william dick having appryzed some lands , holden of the town of irving , and charged the magistrates to receive him . the laird of corsbie having compryzed the same lands , some dayes after , was received by the town , the next day after sir williams charge ; and about a month after , sir william was also infeft . clerkingtoun having right from sir william , pursues corsbie ; first , for mails and duties , corsbie was found to have the benefit of a possessory judgement , by seven years possession , and thereupon was assoilzied . now clerkingtoun insists in a reduction on this reason , that he having first appryzed , and charged the superiour , they colluded with the defender , and gave him a voluntar infeftment , the next day after his charge ; and therefore his infeftment , though after , ought to be drawn back to his charge and diligence , and he preferred . the defender answered , that the reason ought to be repelled , because the weight of the reason is the pursuers diligence , and the superiours collusion , which hold not , because all the diligence sir william dick did , was the first charge upon the letters of four forms , which bear only with certification , that in case of disobedience , letters of horning would be direct simpliciter , and this is no more then a premonition , and put no obligation upon the superiour , until the second charge , which was horning : neither did sir william ever insist any further then the first requisition . the lords found that the first charge was sufficient , in this case , where the superiour gave an infeftment before the expyring of the first charge , and before the second charge could be given , and thereby that a superiour might prefer an appryzer , though posterior to a prior , do what diligence the prior could . but they found , that seing sir william dick had been silent , until his legal reversion was expyred , and had not challenged the defender , who was in possession , and thereby had excluded him from the benefit of redemption competent to him , if he had been found to be but the second right within the legal . therefore the lords found sir william dicks appryzing redeemable by corsbie , within year and day , after the sentence . mr. iames hutcheson contra earl of cassils . eodem die . mr. iames hutcheson having charged the earl of cassils for his stipend . the earl suspends , and alleadges , first , that the charger had no right to the whitsonday term , . because that term was past before his presentation , at least before his institution and collation . ly . there being but a decreet of modification , and no locality . the earl alleadged locality should be first made , and he lyable but for his proportional part of the stipend . the lords found that the stipend affected the teinds , and the minister might take himself to any of the heretors● in so far as he had teind , and therfore sustained the condescendence , and ordained the charger to prove what teind my lord had , without prejudice to him to crave his relief . lady craig and greenhead her husband contra lord luire . decemb. ● . the lady craig being infeft in liferent , pursues her tennents . compearance is made for the lord lui●e , who appryzed the lands of her husband , and alleadges that he ought to be preferred , because he stands publictly i●feft , and any right the lady has , is but base , holden of her husband ; and before she attained possession● he was publickly in●eft . it was answered for the lady , that her husbands possession is her possession , and so her infeftment was cled with possession , from the date thereof : it was answered that that holds only in the case of an infeftment to a wife , upon her contract of marriage ; but this was but an additional gratuitous infeftment , stante matrimonio , she being competently provided before by her contract . in which case such provisions cannot prejudge lawful creditors , neither can the hushands possession give the benefit of a possessory judgement to the wife , unless she had possessed seven years after his death . the lords found , that such infeftments as these , being gratuitous and voluntar , could not be prejudicial to the husbands creditors , nor give the wife a possessory iudgement : and the case here being with a creditor of the husbands , they did not proceed further to consider , and determine , if the husbands possession , in such a case , would not validat the base right , as to any acquired right thereafter . eccles contra eccles. eodem die . in an action of a compt and reckoning betwixt these two infants . it was alleadged for the defender , that he being pursued upon his fathers back-bond , oblieging him to make compt and payment of the means of umquhil fergus eccles his brother , to thomas eccles● , and umquhil andrew eccles , the pursuers father . it was answered , upon condition that mr. hugh , the defenders father should have the third part to himself . the question was concerning the manner of probation . the pursuer alleadged , it was only probable scripto , he being a pupil and his father dead . the defender alleadged , it was probable by the tutors oath , being so likely in it self , that mr. hugh being the third brother , should have the third share , and that thomas the tutor did accordingly allow him the third share ; and there was produced a testificat of balloche , that there was an agreement notwithstanding whereof , the lords refused to take the tutors oath , ex officio , seing they found , albeit it were affirmative it could not prove against the p●pil . scot in cairlyle contra henderson and wilson . december . . ritchard scot having charged henderson and wilson upon their bonds , they suspend , and offer them to prove payment of a part , by witnesses , and alleadges that it being the law of england , that w●tnesses can prove to take away writ , that therefore these bonds being contracted in england , with english men , the suspenders ought to have the same benefit of probation , they would have had , if they had been arrested in england , upon their bonds , or pursued there , and adduced a practick of dury , in anno . the lords having accuratly considered and debated this case amongst themselves , and finding that locus contractus , was in england . but the bonds bare expresly a clause of registration in scotland : and that such bonds had been ordinar betwixt merchants in england , and merchants in scotland ; and in no time such a probation admitted , and that it would furnish an ordinary delay in such cases , to the disadvantage of merchants , and hindering of trade , by always offering to prove payment in england , by witnesses , which could require long time . therefore they found the reason only probable , scripto vel juramento . mr. cornelius inglis contra mr. rodger hogg . december . . mr. cornelius inglis pursuing a removing against certain tennents near dumbar , upon an infeftment and appryzing . it was alleadged for the tennents , that they were tennents to mr. rodger hogg , by payment of mail and duty to him , and he was not called . the pursuer answered non relevat , unless the defenders condescend upon mr. rodgers right , which might defend him and them . the defenders answered , first ; that they could not be oblieged to dispute their masters right , but he ought to be called to dispute his own right . ly . it was insinuat , that mr. rodger had an appryzing , and a charge against the superiour . the lords repelled the defense , unless the defenders condescended upon such a right as were valide to exclude the pursuer , being prior to his : but the tennents alleadged no such right , and mr. rodgers charge was posterior to the pursuers infeftment . iohn veatch younger of dawick contra alexander williamson . eodem die . john veatch pursues williamson upon the act betwixt debitor and creditor , for paying to him of his proportional part of the mails and duties of appryzed lands , as coming in pari passu with the defender , by an appryzing , within a year of his . the defender alleadged absolvitor , because he has right to the first appryzing , led before the act of parliament , betwixt debitor and creditor : and therefore he has the benefit of the . act of the last session of parliament , declaring , that where an appryzer , for his own security , had redeemed a prior apprysing , and gotten right thereto before the act , betwixt debitor and creditor . the said first apprysing should have the same effect , it would have had before the act , debitor and creditor , and should not come in pari passu . the pursuer answered , that behoved only to be understood , where the second appryzer had upon necessity to shun the expyring of the legal redeemed , and gotten right to the first apprysing , which could not be said here , because the debitor being minor , the legal had , and has a long course to run . the lords sustained the defense without any such limitation , in respect of the express tenor of the act of parliament . robert learmonth contra laurance russel . eodem die . robert learmonth being pursued by laurance russel , for the price of wines , and the matter referred to his oath , gave in a qualified oath , bearing , that the wines in question were sent to him , not to be sold till further order , and that therefore he keeped them unsold till the end of the year , and when they were in hazard of spoilling , sold them for pound sterling the tun , and that he that sent them , was debitor to him by bonds and decreets , in a greater sum . it was alleadged , neither member of the quality was competent ; not the first , because it was offered to be proven , that the wines at that time gave . pound sterling ; and not the second ; because it was an exception of compensation , and relative to writ . the lords sustained the first member of the quality , but rejected the second , and found it relevant to be proven , by way of exception . goldsmiths of edinburgh contra robert haliburton . december : . the goldsmiths of edinburgh having obtained decreet against haliburton , as heir to his father . he suspends upon this reason , that the goldsmiths confirmed themselves executors creditors to his father , and must allow the inventar , which either they have in their hand , or at least should have done diligence therefore . it was answered for the executors , that they being executor creditors , are not lyable for diligence , having confirmed but to their own behove , for their payment , and as creditors may arrest , apprize , and do all dilligence , severally , the one but prejudice of the other , so may they confirm . ly . they found , that having confirmed in edinburgh , whereas the defunct lived and died within the diocie of glasgow , that therefore their title was null ; and therefore did not proceed . and lastlie oppons their decreet in foro . the suspender answered , that they can never object against the nullity of their own title . ly . all that time there was no commissioriat constitute for the shire of air , where the man died , and so edinburgh was communis patria . the lords having debated the general case , whether executor creditors were lyable for diligence , waved the same , but found that in this case , in respect of the questionableness of a title , they would not find them lyable upon their negligence . lyon of muirask contra sir robert farquhar . eodem die . mvirask having pursued a declarator of redemption of the lands of balmellie , against sir robert farquhar , litis●ontestation was made in the cause , wherein the order was sustained , proceeding upon an adjudication against sir iohn vrquhart , as heir to his goodsire , and it was offered to be proven , that he died in the right of the reversion of this vvodset , which was but base and holden of the granter , for proving whereof , his charter was produced , bearing the barony of craigfintrie and balmellie , per expressum . at the advising of the cause , it was alleadged that the defender having protested for reservation , contra producenda . it is now instantly verified , that the grand-father died not in the right of the reversion , but that he was denuded by disposition to his son , instructed by his charter produced . the pursuer answered , that he opponed the state of the process . and if such a defense were now competent , it ought to be repelled , because he hath right from sir iohn vrquhart , who is heir served and retoured to his father , in whose favours his grand-father was denuded , and has declared , that he consents to the declarator upon that ground , and renounces all other right . the defender answered , that the order having been only used upon the adjudication from vrquhart , as heir to his grand-father , if that be excluded , albeit the pursuer have another right , he must use the order , de novo , and redeem thereupon . ly . sir iohn vrquharts right produced renounces , but does not dispone any right to the pursuer . the lords having considered the state of the process , found that a reply instantly verified , is receiveable post conclusum in causa , unless it were alleadged to have been known to the proponer , and dolose omitted ; by which the pursuer might be put to a duply , suffering new probation . but the lords found that the charter produced , bearing the grand-father to be denuded , did not instantly verifie , because it expressed not balmellie , and would not allow a term to prove , part and pertinent . it was further alleadged by the defender , no declarator till the sums consigned were reproduced at the bar ; especially , seing it was offered to be proven , that the pursuer lifted them himself , and he being at the bar , it is instantly verified . the lords sustained the same , and declared , the sums being reproduced before extract , and that the pursuer shall be lyable for annualrent , or the wodsetter shall retain the duties effeiring thereto . lord rollo contra his chamberland . december . . the lord rollo having pursued his chamberlain for intromissions , conform to a particular accompt libelled . the defenders have compeared , offered to prove he was discharged , which was found relevant ; and now producing the same , it proves but for a part ; whereupon the pursuer craved sentence for the rest : it was alleadged for the defender , that there was nothing produced to instruct the intromission . the pursuer answered that the defender having made litiscontestation , upon a discharge , without denying the intromission , he has acknowledged the libel , and the pursuer cannot be put to prove the same , without inverting the order , and making two litiscontestations in the same cause . the defender answered , that this being but an omission of the advacats or clerks , of a thing palpable , the lords might repone the defender . the lords adhered to the act of litiscontestation , but referred to some of their number , to move the parties to what was equitable ; and it was thought , that if the defender would alleadge that he was not intrometter , for these particulars , but that they were in the pursuer , or his other chamberlains hands , and were instantly verified by his oath , it were receivable . bishop of the isles contra iames hamiltoun . eodem die . the bishop of the isles pursuing hamiltoun a merchant in edinburgh , for his teind fish taken in the isles , which is a part of the bishops patrimony . the defender alleadged ● that he being a merchant , and not a taker of herring , cannot be lyable for the teind thereof , no more then if one should buy corns in the mercat , or out of the barn-yard ; he could be conveened for the teind . it was answered for the pursuer , that it was the immemorial custom that the first buyer from the fishers , should be lyable to the bishop of the isles , for the teind of the fish , bought , and for proving thereof , produced a decreet at his predecessors instance , against some merchants in edinburgh ; which decreet did bear , that in a former decreet , betwixt the same parties , the bishops had proven immemorial possession against the merchants . ly . the instance holds not of buying corns in the mercat , or barn-yeard ; but if any body should buy the whole cropt , when it was upon the land untaken off , being in the sheaves or stoucks , he would undoubtedly be lyable as intrometter for the teind : so if any merchant bought not upon the place , where the fishes were taken , he was not lyable : but buying the fish fresh , as they were taken , in whole boat-fulls , and selling them there themselves ; such merchants must be liable as intrometters . the defender answered , that the immemorial custom was indeed relevant , but a decreet against some few persons , could not prove it against others , being inter alios actum . but here there was only a decreet bearing , that there was a former decreet , in which that was proven . the lords sustained that member against these who bought the hering and salted them themselves , to be proven by their oaths , and would not sustain the probation of the custom , seing the principal decreet was not produced , unless that at least the testimonies proving that custom , were repeated and produced out of the old process , that it might appear , whether there were any ground of objection against the manner of probation . lady colvil contra lord colvil . december . . the lady colvil pursues the lord colvil to relieve her of the whole debt , hererable and moveable of the defunct , his predecessor , because the defunct in his testament , had named her , his lady , executrix and universal legatrix , with a special clause , that she should be free of all his debt whatsomever . the defender alleadged absolvitor , because no deed done by a defunct in lecto , or in testament can prejudge his heir . the pursuer replyed , that this testament was made in the defuncts leige poustie . the defender answered , that on death-bed , and by testament equiparantur . which the lords found relevant and assoilzied . laird of phillorth contra forbes of aslocon . december . . phillorth as donatar to the escheat of forbes of aslocon , and having obtained general declarator , insists in his special declarator . it was alleadged absolvitor , because the horning , whereupon the gift was granted , is null , in so far as being beyond dee , it is upon six dayes , contrair to to the act of parliament . declaring all hornings beyond dee , on less then fifteen dayes null , conform to a decision in dury , albeit on a bond , bearing a clause of registration on six dayes only● february . . steuart contra bruce . it was answered for the pursuer , that the acts of parliament hinder not the agreements of parties ; but is expresly anent hornings , on lawborrows or the like ; but these are on the parties own consent by the clause of registration : and if these should not be valide , all the hornings and other executorials thereon beyond dee , since . would be null , and such bonds would have no effect ; seing upon the clause of registration , horning could not be otherwise direct on six dayes , and so they should not have any summar execution . the defender answered that the act is general of all hornings , and bears a general reason , because it is impossible for parties at such distance , to come to edinburgh to suspend in four dayes , and privat pactions cannot derogat from general laws , where the express reason is for publick utility , contrair to which , no man can make himself rebel , more then he can give power to incarcerat himself , where law gives no warrant , but prohibits . the lords repelled the defense , and sustained the horning . innes contra forbes of touchon . eodem die . innes having charged forbes of touchon on an act of adjournal , for an assythment , for wounding him , and reparation of his blood. he suspended , and alleadge the act was null , wanting citation , compearance or probation . it was answered , that being the act of the justice general , who is supream in criminalibus , it cannot be recognosced by the lords . the lords having considered the case amongst themselves , thought that in what was truly criminal , as to corporal pains or amerciaments in way of punishment , they would not medle with the justice sentences , but assythment , being civil for the damnage and interest of the party , pursuable before the lords , they might recognosce thereon , and therefore in respect that the probation of the fact was by a process before the baillies , they ordained that process to be produced before answer , and the suspender to condescend if there was any exorbitancy in the sum decerned for the assythment . mr. thomas paterson contra watson . december . . mr. thomas paterson charges watson to remove from his gleib , who alleadged the designation is null , because it is not subscribed by the ministers designers , but is only the assertion of a nottar . ly . by the act of parliament . anent gleibs , there is an exception of royal burrows , to which ministers gleibs are not due , ita est , dysert is a royal burgh . the charger answered to the first , that the having a warrand from the bishop and presbytrie his instrument of designation is as sufficient as a seasine , to give right to land. and to the second , the royal burrows excepted , must only be understood of such who have not a landwart congregation , but are chiefly constitute of an incorporation for trade ; but this burgh is notourly known to be but a burgh of barony , holden of the lord sinclar ; albeit it has the priviledge of vote in parliament , and is a parsonage . the lords sustained the designation , but before extract , ordained the testificat of the ministers designers , under their hands to be produced . sarah blomart contra earl of roxburgh . sarah blomart pursuing the earl of roxburgh : he alleadged she could have no processes , being of the vnited provinces , who are declared enemies to his majesty . it was answered , that there was no denunciation of war by his majesty , as king of scotland , nor any proclamation in scotland to that purpose . it was replyed , that there was a warrant by the king and council , to cease upon all the dutch vessels in scotland . the lords found that this was but an imbargo , and no denunciation of war in scotland , and therefore found process . mr. iames reid minister of north-leith contra william melvil . december . . mr. james reid charges william melvil for the teind of hard fish , bought by the said william in the lewes , and imported by him at leith . he suspends on this reason , that he bought the said fish from merchants in the mercat , and did neither take the same himself , nor bought them immediatly when they were green from the taker , and so can be lyable for no teind . the charger answered , that he is decennalis & triennalis possessor of getting twenty shilling of the last , of all fish imported at new-haven ; and for instructing thereof , produces a decreet in anno . and another in anno . and if need beis , offers him yet to prove possession . the defender answered , that these decreets are expresly against the fishers or takers of fish , but not against merchants , buying and importing the same : and as for the custome , non relevat , unless it were an universal custome established by sentences ; for if some few merchants should have to save themselves trouble , given an uncertain acknowledgement , according to their own discertion , and no fixed duty , nor by no compulsive way , it imports not . the lords suspended the letters , except only for such fish as should be taken by the boats and fishers of new-haven . agnes young and her husband contra buchanans . eodem die . agnes young pursues buchanans , her children , for her third of her husbands moveables , and for her liferent use of the other two thirds , conform to her contract of marriage , whereby she is provided , to his liferent of all goods and geir , conquest during the marriage , moveable and immoveable . the defenders answered , that the pursuer cannot both have the third and the liferent of the whole , because it must be presumed , that the liferent of the whole , was given in satisfaction of the third and all . the pursuer answered , that this could not be presumed , unless it had been so exprest , no more then a terce is excluded by a provision of liferent , unless it bear in satisfaction of a terce . the lords found the defense relevant , that the pursuer could not both have her third , and the liferent of the rest , but gave her her option , either of the third , provisione legis , or of her liferent of the whole , provisione hominis . earl of athol contra iohn scot. eodem die : the earl of athol having obtained decreet against iohn scot , before the commissar of dunkeld , for the teinds of the said iohn his lands . he suspnds , and raises reduction on this reason , that albeit the decreet bear a defense proponed , that the teinds in question are mortified by the king to a kirk , and that the same was found relevant , and that the said iohn succumbed in proving thereof , yet he offers him to prove that before the term elapsed , he produced the mortification before the commissar , and thereupon took instruments , which is produced . which the lords found relevant . mr. george norvel advocat contra margaret sunter . eodem die . mr. george norvel pursuing for mails and duties upon an appryzing . compearance is made for margaret sunter , who alleadged absolvitor because she was infeft in liferent , before mr. georges right ; which being found relevant for instructing thereof , she produced her seasine . which the lords found not to instruct without an adminicle , and therefore sustained the decreet . the said margaret raised reduction of this decreet , on this reason , that now she produced an adminicle , viz. her contract of marriage . ly . that the decreet is null , because the quantities are not proven . the charger answered to the first , that the lords having found the exception not proven , the pursuer could not be admitted in the second instance against a decreet , in foro , upon production of that which she should have produced at first . as to the second , he needed not prove the quantities ; seing her exception was total , without denying the quantities . the lords found the decreet valide , but ordained some of their number to deal with mr. george , to show favour to the poor woman . doctor ramsay contra mr. william hogg and alexander seton . december . . these three parties having appryzed the same lands , the first appryzer being infeft , the second not being , and the third being infeft : the first appryzer declared he would not insist for the mails and duties of the whole , but only possessed a part . the question came , whether the second apprizer , not having charged , should be preferred to the third , who was infeft . it was alleadged for the second appryzer , that he needed not be infeft , because the first appryzer being infeft in all , he had the only jus proprietatis , and there was nothing remaining , but jus reversionis , which the appryzing alone carryed : and as the second appryzer might redeem the first ; as having the right of his reversion ; so he might force him , either to possess the whole , whereby his appryzing might be satisfied , or give warrant to the second to possess the remainder , so likewise he might use redemption . it was alleadged for the third appryzer , that if the question were of the redemption of the land , the second had good right ; but the question being for the mails and duties , a right of reversion , could never carry these without a seasine . the lords considering the point in law and the great disadvantage the leiges should sustain , if all appryzers were necessitat to take infeftment , they prefered the second appryzer . cornelius inglis contra mr. rodger hog . eodem die : mr. cornelius inglis being infest upon an appryzing , pursues a removing ; compearance is made for mr. rodger hog : who alleadged that he is also infeft , and had charged the superiour , though , after the first appryzer , and had possessed seven years , by lifting the mails and duties ; and therefore craved the benefit of a possessorie judgement . the lords having considered the case amongst themselves , whether an appryzing and charge , without infeftment could give the benefit of a possessorie iudgement . they were equally divided in their votes , and the president resolved before he gave his vote to settle the parties . contra edmistoun of carden . ianuary . . edmistoun of carden being pursued by a creditor of his fathers , as lucrative successor to his father , by accepting of a disposition of his fathers lands , after contracting of the pursuers debt , alleadged absolvitor ; because , being pursued beforeby another creditor of his fathers , he did then alleadge , that his disposition was not lucrative ; but for a cause onerous , equivalent to the worth of the land , which he proved , by instructing the rental , and rate of the land , at the time of the disposition , by witnesses , and the sums undertaken for it by writ , whereupon he was assoilzyed , and can never be again conveened upon that ground ; nam obest exceptio rei judicatae , for if he had been condemned as lucrative successor● upon the other creditors probation : it would now have proven against him , and therefore , his beng assoilzied must be profitable to him against others ; unless collusion were alleadged and instructed . the pursuer answered , that this absolvitor was res inter alios acta : and albeit a condemature would have been effectual against the defender , non sequitur , that an absolvitor should also be effectuall for him ; because he was called to that condemnature , but this creditor was not at all called to the absolvitor . . even in a condemnature , if the defender had omitted any thing , that he might have alleadged , in the one case competent , and omitted , would not hinder him to propone the same against another creditor . therefore the defender can only repeit the grounds of that absolvitor ; which if he do , the pursuer will alleadge . that whereas , in the absolvitor , the defender was admitted to prove the rental . the pursuer omitted to crave the benefit of probation , which he would have gotten ; and this pursuer offers him to prove , that whereas the rental was proven to but . chalders of victual , the true rental was worth . chalder . dly . a part of the onerous cause , was the portion of the defuncts children , which would not prejudge the pursuer being an anterior creditor● the lords found , that the absolvitor could not prejudge this pursuer , as to these points omitted ; and that it could not have effect inter alios , except it had been in re antiqua , where the witness had died , that in that case , the testimonies out of the former process , might be repeited ; but as to the rental , the lords would not give the pursuer the sole probation● being so lubrick a point , as not only what it payed , but what the lands were worth , and it might have payed ; and ordained witnesses to be examined , hinc inde ; and found , that the bairns portions not being payed bona fide , before the intenting of this cause , could not prejudge the creditor : but ordained the defender to suspend on double poynding , against the pursuer and the bairns ; but in regard of so much ground , in the matter , they declared they would not sustain the passive title , to make him successor universal , but only as to the just price , and the cause onerous . grahame of blackwood contra brouns . ianuary . . john and william brouns , having appryzed certain lands ; and william grahame having appryzed the same , within a year after , pursues an accompt and reckoning against the first appryzer , upon the last act of parliament , betwixt debitor and creditor ; and craves to come in pari passu with the first appryzer , not only as to there mails and duties of the lands intrometted with by the appryzer , since the said act of parliament ; but also for these duties that were intrometted with before the said act ; and that , because the act bears expresly , that such appryzing shall come in pari passu , as if there had been one appryzing led for both . it was answered , for the first appryzer , that what he did uplift bona fide , before any process intented against him , at this pursuers instance , he cannot pay back a part thereof to the pursuer ; because he is bona fide possessor : and because the act of parliament bears ; that such appryzings shall come in pari passu : which being in the future , must be understood to be from their intenting of process , at least from the date of the act , but not from the beginning . the lords having considered the tenor of the act of parliament , found that such appryzings should only come in pari passu , from the date of the act ; but that the bygones uplifted by the first appryzer , before the act should be accompted to him in his sum , but no part thereof repeited to the second appryzer ; and found that the sums appryzed for principal and annualrent of both parties , should be restricted , as they were the time of the act of parliament , in one total sum ; and the rent to be received from that time proportionally , to the total sums ; and that the first appryzer should have allowance in his preceeding intromission of the expenses of the composition to the superiour , and the charges of the appryzing , without compelling the second appryzer , to pay him the same . normand lesly contra gilbert gray . ianuary . . normand lesly , charges gilbert gray provost in aberdeen , to pay merk , for which he was cautioner for william gray . he suspends , and alleadges , that the charger had gotten an assignation from the said william gray , to an bond granted by the earl of errol , to him and therefore craved , that the charger might be decerned to transfer that assignation to him , being given for the security of the same sum. it was answered , that the charger was only oblidged to give a discharge to his cautioner , and not an assignation of the bond it self , and much less of any security ex post facto he had gotten therefore . the lords declared , they would not give the charger process , till he assigned the bond , and all security gotten therefore to the cautioner . william reid contra john reid . eodem die . william reid pursues iohn reid , as his tutor , to deliver all writs belonging to the pupils father , or which were in his custody ; and possession quovis modo intrometted with , by the tutor . who alleadged , the pupil could have no interest in any writs , but these which belonged to his father . the lords found , that pupil had interest to call for exhibition , and delivery of all writs that were in his fathers possession quovis modo , and ordained the tutor to exhibit all , but prejudice to any partie having interest , to crave the delivery of these writs if they belonged to them . campbel contra mary bryson . eodem die . george campbel having right by adjudication , to the reversion of a wodset , of some of the lands of newlistoun , wodset by the laird of newlistoun ; to andrew bryson baillie of edinburgh , whereupon he was publickly infeft ; and thereafter did dispone the same to his daughter marry bryson , and she was infeft , holden of her father ; which disposition contained a power to the father , to dispone on the sum in the wodset right , during his lifetime , without her consent ; after all andrew bryson obtained a confirmation of the foresaid wodset : with addition of . aikers of land more , for the same sum , which was conceived in favours of himself , and the heirs of the marriage , whereupon he was infeft . the said george having used an order of redemption ; craved declarator . compearance is made for the said mary , who craved the said sum to be delivered up to her . it was alleadged by the pursuer , that she could not have up the sum , unless she were infeft , as heir to her father , both in the first and last wodset , and resigned the same ; and so liberat the land of the burthen thereof ; for albeit she was infeft proprio nomine , yet it was but base holden of her father : so that the superiority remained with her father ; and she behoved to be infeft as heir to him , and renunce the same . . the corroborative wodset stood in her fathers person , who by her disposition had a power to dispose of the first wodset ; and so had altered the fee thereof to himself , and his heirs . it was answered , that the second wodset was taken when maries mother was dead ; and she the only child of that marriage : and so was alike , as if her name had been expressed . . the declarator it self will sufficiently secure the redeemer , albeit there were no resignation . dly . the second wodset , is but accessory to the first ; so that the said mary , having power to renunce the first wodset proprio nomine , the second may be declared to be extinct in consequence , and further , offered caution , if need were , to warrand the redeemer . the lords found the lands to be redeemed , but ordained the money not to be given up , untill the said mary had infeft her self , as heir to her father , and resigned , for they thought , the redeemer ought to put upon no hazard of repetition , or of the danger of the infeftment unrenunced ; seing it was the ordinar course to be infeft , and to renunce . magaret arnot contra mr. robert arnot . ianuary . . margaret arnot pursues a reduction , of a decreet of exoneration , obtained by william arnot her uncle , and executor to her father . it was alleadged , for mr. robert arnot , son and successor to the said william , that all parties having interest were not called . viz , the creditors , and legatars , who were concerned in the event of the reduction ; for if there sums and discharges were not allowed , according to the exoneration . the defender behoved to return upon them , for payment ; and therefore they ought to be called to defend their interest . the lords repelled the defense , and found no necessity to call the creditors and legatars , but that the defender might intimat the plea to them . neilson and calender contra ianuary . . neilson and lodovick calender her spouse pursue a transferrence of an old summons , on which there was an inhibition used . it was alleadged , that the executions , of the first summons were new , and by ocular inspection false , and craved the pursuer might abide thereby , who refused ; and so being without an execution on the first summons , but having an execution on the second were null , the pursuer craved them to be transferred instatu quo , but prejudice to the defender , in the cause to alleadge no process ; because the first execution was wanting . the lords refused to transfer , but some were of opinion , that a new summons , in eadem causa would be sufficient to make the in●ibition effectual , being raised on the summons of registration of a bond , others thought that albeit the style bear , that inhibitions were not granted , but upon fight of the summons execute ; yet it was ordinar to give it on an unregistrate bond , or a charge to enter heir execute , though there was neither decreet nor dependence ; and therefore , though executions be put on to get , these raised ; yet they are not adhered to , but now used so , that this summons , though without execution , yet might be transferred , and thereon executions might be used , and thereby the inhibition stands valid , which was the more clear way , for albeit summons bear to cite to such a day next to come and so ordinarily cannot be used , no citation being thereon within the year ; yet the lords special warrand may allow a summons to be sufficient for citation thereafter , as well as they may give other priviledges janet shand contra charles charters . ianuary . . crichtoun of castelmain , and crichtoun of st. leonard , granted a bond to iohn shand , and herren his spouse ; the longest liver of them two : and their heirs , &c. with a clause for infeftment , whereupon there was an appryzing , led in iohn shands lifetime , against one of the debitors : thereafter , iohn shand charges the other debitor for payment ; after the charge ; iohn shand gives in the appryzings , to be allowed , and after his death , his wife takes infeftment upon the appryzing , the bond being now produced before the lords , in an exhibition , pursued by ianet schand as heir to iohn shand. there is a competition for delivery , betwixt ianet shand , as heir to iohn shand ; as being heritable , and charles charters , as having right from herrein , iohn shands relict , as being moveable . it was alleadged by the heir , that the sum became heretable , by the superveening of the appryzing . it was answered , that there was a charge after the appryzing , which returned the bond to be moveable . it was answered , that the charge was not against the partie , whose lands was appryzed , but against the other party . ly . the charge could only return the bond to its first condition , before the appryzing : so that the bond being since . the relict is excluded ; and the charge cannot bring her in . ly . albeit it could , yet after the charge the defunct returned to his heretable right , by obtaining that appryzing allowed , which allowance , the relict produced , and took infeftment : so that these last acts being upon the real right , the heir must be preferred ; and therefore the ground of preference of the executor , or heir , is the will of the defunct , either to make use of his heretable or moveable right , which is still ambulatorie , and in his power ; and whatever right he last makes use of , evidences his choise , and according thereto , the right is either heretable or moveable : but here he did last make use of his real right , by allowance of the appryzing , after the charge , which the relict homologat , by taking infeftment conform . it was answered , for the creditor of the relict ; that this being on debt , though due by many debitors . the charge against one , did sufficiently show the purpose of the defunct , to make use of his right ; and the charge doth render the bond simply moveable : and doth not return to the condition it was before the appryzing . to the . passing from the charge must either be express , or a deed of evident consequence , but the allowance of the appryzing is not such ; which might be done only ad hunc effectum , that if the appryzer should pass from his charge , the appryzing might revive , and be secure . the lords found the sum heretable . charles charters contra a skipper . eodem die . charles charters having fraughted a ship to queensburgh , by charter partie . the skipper was to ly so many lye dayes , and to bring a fraught thence ; he returned without full fraught , whereupon charles refuses full payment ; and being decerned by the baillies of leith to pay the rest , he suspends on this reason , that the skipper ought to get the fraught only proportionally to the loading , and offers to prove the third part less then the full loading brought home , and that the skipper could not have his full fraught , unless he instruct that he intimat to the factor at queensburgh , to whom he was direct , of his coming , and that he lay his lye dayes , and after intimation to the factor to give him any ware he had , he took instrument , or protested thereon . the lords found , he ought to prove the intimation , ut supra , by witnesses but required no protest , or instrument thereon . edgar . contra edgar . january . . isobel edgar pursues for merks , provided in her mothers contract of marriage , by this clause ; whereby her father having married her mother to his second wife , oblidged him , and the heirs of the first marriage ; which failzing , his heirs and executors to pay to his bairns of the second marriage , merks , albeit there were but one of them ; and if there were more , the same sum to be divided among them , the portions of the male children to be payed at their age of . and the femal at the age of . and to pay them five of each hundreth after his death , till the terms of payment . ita est , the heirs of the first marriage failzied by decease , and there was four bairns survived of the second marriage , whereof two died , before they attained to their age mentioned in the clause , and now there remains but two , the pursuer and her brother , who is become heir ; whereupon she alleadges , that she hath the benefit of the whole merks . it was answered , for the brother , that he hath right to the half , because he is a bairn of the marriage as well as she ; and albeit he be become heir , yet that takes not away his share , by this oblidgment as a bairn of the second marriage . ly . albeit his being heir would exclude him , yet the portions of the two that are deceased having become heirs by there survivancy transmit the same to their nearest of kine , and so he and the pursuer are equally nearest of kin. the pursuer answered , that the heirs of the first marriage having failled , the clause stands now as if it had been conceived thus ; that the father had oblidged himself , and his heirs , which comprehends all heirs● to pay to the bai●ns of the second marriage ; which must be understood of bairns , beside the heir ; because the heir is constitute debitor ; and so cannot be thought to be creditor in the same clause . the lords found the conception of the clause , that the brother , by falling now heir , was excluded ; seing it was clear , by the meaning of the defunct , that his heir should have his lands , and his bairns of his second marriage , should have , though but one , merks : but here the heir , of the first marriage was never served heir , they also found , that the portions of the children being to an uncertain day , and not conceived to their heirs , or assigneys , that they dying before that day , had no right to the stock , but only the annualrent , medio tempore , so that the stock accresced to the surviving children ; as if the defuncts had never existed , and that their assigneys , or creditors could not have affected the same : and so found the brother had no right , as nearest of kin to the two deceasing children , not attaining the age mentioned in the contract . william stewart contra stewarts . ianuary . . william stewart pursues a poynding of the ground , of the lands of errol , upon an infeftment of annualrent , granted to his grand-father by the earl of errol , by his bond , and infeftment following thereupon : in which bond , there were cautioners , the annualrent was for a sum of merk . and a sum of merk . compearance is made for the pursuers brothers and sisters , who alleadged , that as to the sum of merks , it became moveable ; and belongs to them , as nearest of kine : in so far as their father made requisition for the same : it was answered , the instrument of requisition is null ; and being disconform to the clause of requisition : in respect , that the original bond was to the husband and wife , the longest liver of them two , in conjunctfee , and their heirs , &c. and the requisition bears expresly , that if the husband , or his heirs required , with consent of the wife , then the debitor shall pay , ita est the instrumenet bears no consent . it was answered , that albeit some points of the requisition were omitted ; yet seing the mind of the defunct appears to take himself to his personal right , and consequenly to prefer his executor to his heir , it is sufficient . the pursuer answered , non relevat , because every intimation of the defuncts intention is not enough ; but it must be haili modo , and the ground whereupon the sums become moveable , is , because the requisition looses , and takes away the infeftment ; and therefore if the requisition be null , the infeftment is valid : and he bairns can never have access . the lords found the requisition null , and preferred the heir . stewart contra stewart . ianuary . . in the foresaid cause , it was further alleadged , for the merk , that it was also moveable ; because , as to it , there was no liferenter , and the fear himself did require . it was answered , for the children , that the requisition is null , because it mentions not the production of a procuratory , nor the production of the right it self . ly . the requisition is made to bogie as cautioner for the earl of kinnoul , whereas he was cautioner for the earl of errol , granter of the first bond. it was replyed , oppones the requisition , bearing , that the procurators power was sufficiently known to the notar . ly non relevat , unless the person required , had called for the procuratory or right , and had been refused . ly . the procuratory is now produced , with the right , and the defunct acknowledged the procuratory ; and right , because he raised horning thereupon . the lords sustained the requisition , and found the sum moveable , and preferred the bairns thereto . shaw contra lewens . eodem die . william shaw , being a factor at london , and dieing there ; and having means both in england and scotland : there falls a competition betwixt his executors nuncupative in england , and his nearest of kine , executors in scotland . anna lewens executrix confirmed in england ; produces a sentence of the court of probat of wills in england , bearing , that upon the examination of witnesses , that court found , that william shaw did nominat anna lewens his executrix , and universal legatrix . and that being asked by her , what he would leave to his friends in scotland . he declared he would leave her all , and them nothing , because they had dealt unnaturally with him . it was alleadged , for the defuncts cusigns , executors confirmed in scotland , that they ought to be preferred , because as to the defuncts means , and moveables in scotland , the same must be regulat according to the law in scotland , where a nuncupative testament hath no use at all : and albeit , a legacy may be left by word , yet it cannot exceed a lib. scots . it was answered , that as to the succession , the law of scotland must regulat : so that what is heretable , cannot be left by testament , though made out of scotland . as was found in the case of the successors of col henderson dying in holland , and in the case of contra meldrum ; yet as to the solemnity of acts to the law , and custom of the place , where such acts are done , takes place , as where an act is done in scotland : albeit it be only probable by writ , or oath of parties : yet being done in england , it is probable by witnesses though it were of the greatest moment , and though the law of scotland , in writs of importance , requires the subscription of the partie before witnesses , or of two nottars , and four witnesses : yet writs made in france and holland , by the instrument of one nottar , are valid ; so here there being no difference from the law of scotland : which always preferres executors nominat , before nearest of kin ; and the difference only as to the solemnities , and manner of probation , that there it may be proven by witnesses , there was a nomination , and here only by writ . the lords having considered the reasons , and former decisions , preferred the executors , confirmed in scotland , for they found , that the question was not here of the manner of probation , of a nomination , in which case , they would have followed the law of the place , but it was upon the constitution of the essentialls of a right , viz. a nomination , which , albeit it were certainly known to have been by word ; yea , if it were offered to be proven by the nearest of kin , that they were witnesses thereto , yet the solemnitie of writ not being interposed , the nomination is in it self defective , and null in substantialibus . lord lour contra ianuary . . in a process , for making arrested sums furth-coming , two arresters , viz. my lord lour , and another competing . it was alleadged , for lour , that the first arrestment , is null , because the partie was out off the countrey , when it was only made at his dwelling house , which is not legal ; seing all summonds , intimations , premonitions , requisitions , and all denunciations against parties out of the countrey , must be by letters of supplement from the lords , execute at the mercat cross of edinburgh , and peir , and shore of leith : so must arrestments , against these who are out of the countrey be there . which the lords found relevant , and preferred the second arrestment personal . litle contra earl of nithsdail . eodem die . litle pursues an improbation , and reduction against the earl of nithsdaile , of the rights of some lands ; wherein● the lords sustained the pursuers interest , on a compryzing , and charge , without infeftment , and though the appryzing was on litles own band , simulat and assigned to himself ; and found such deeds might make him lyable , as behaving as heir , if he intrometted , and were sufficient titles any other way . the lords also found , that certification ought to be granted against retours , and charters , though in publick registers , but not against writs registrate in the books of session , the date being condescended on , by the defender , were sustained against all writs , granted to the defender , and his authors , but such as seem to represent them are called , nor against writs , granted by the pursuer , his predecessors , or authors , but only his predecessors , to whom he doth succeed , jure sanguinis , and such authors , as he produces right from , but they would not admit certification against appryzing , if the infeftment thereupon were produced . sir john baird contra the magistrats of elgine . ianuary . . sir iohn baird pursues the magistrats of elgine , for the debt of a rebel , whom they suffered to escape forth of their prison . it was alleadged , for the magistrats absolvitor ; because they could be oblidged no further , but for their ordinar diligence of custodie , but not contra vim majorem , and offered to prove , that about six a clock at night , in the winter time , the rebels lady going in to sup with him , the keeper opening the prison door to let her in , six or seven armed men pressed in with her , and that there was sixty more at the gate . the pursuer answered , non relevat , because it was the keepers fault to let in any body at that time of night . the lords found the defense relevant , to be proven by witnesses , above exception , which were condescended on . parson of dysart contra watson . eodem die . anderson parson of dysart having a designation of four aikers of iohn watsons land , which was bishops land ; charges him to remove● watson suspends on this reason , that there are parsons lands in the paroch , more ewest to the kirk , and lying about the parsons mans , and therefore , according to the order of the act of parliament : anent designation of glebs , the parsons lands must be designed in the first place , before the defenders lands , which are bishops lands . it is answered , for the charger , that the parsons lands were feued out before the said act of parliament , and are all build with houses incorporat within the town of dysart . it was answered , that the said act of parliament bears , that the parsons lands shall be first designed , although they be feued out before . which the lords found relevant , and ordained the parsons land to be cognosced , what quantitie was wanting thereof to be made out of the bishops land. william menzies contra laird of drum. eodem die . william menzies , as executor to alexander menzies , and umquhil margart gordon the other executor ; having obtained decreet against the laird of drum , for merk : the said margaret being dead , william charges for the whole , margaret having died at the horn compearance is made for the donatar . it was alleadged for drum , that he could not be conveened at the instance of this pursuer , without concourse of the other executor , or some to represent her had been called . for they might have alleadged , that this charger is satisfied of the half of his executry . the lords found , that seing the testament was execute by a sentence ; the other executor needed not be called . ly . drum alleadged , that he could not be lyable to this executor , but for the half . it was alleadged for the donatar , that he craved preference for the other half . it was answered , that the donatar could have no interest , because the sum was heretable ; it was answered , that albeit it was heretable , yet it became moveable , by the executors taking a decreet therefore , in the same case , as if requisition had been used . in this the lords did not decide , some being of opinion , that it was moveable , others contrair , because an executor being but a successor , as a decreet of registration , or transferrence , would not change the nature of the first bond , so neither would this decreet . the heretors of the fishing of don contra the town of aberdeen and their feuers . ianuary . . the heretors having salmond fishing in the water of don , above aberdeen , pursue a declarator of their right of salmond fishing ; and that they ought to be free of the prejudice sustained by the cruives built at aberdeen , and insist upon these particulars . that the town of aberdeen hath no right to cruives , but is only infeft cum piscationibus & piscarijs , and within such a bounds , which cannot carry salmond fishing , being inter regalia , much less cruives . it was answered , that such a clause granted to an incorporation , or community , or being in baronia , with immemorial possession is sufficient ; and that there is a later right granted to the town , with power of cruives , within the said bounds , uti possidebantur . it was answered , that the pursuers had their cruives established before that time . the lords found the town of aberdeens title to cruives , albeit conceived , but conform to the first clause , with long possession was sufficient . ly . the pursuers insisted against the transporting of the cruives from one place to another , which they could not do ; cruives being a servitude , strictissimi juris : as a way being once chosen , and fixed , cannot be changed : especially , in respect of the clauses uti possidebantur . it was answered ; that there being a bounds expressed , and mentioning cruives to have been there before , the meaning can be no other , then that these cruives should be removed , if inundations alter the present stans , and uti possidebantur is only understood of the way of building , as before . the lords found , by the said clause that the cruives might be trasplanted within the bounds having but one cruive dyck , and the former dyck demolished , so that the fishings above be in no worse condition then formerly . ly . they insisted for the wydnesse of the heeks , whereanent it was alleadged , that by an act of parliament king iames the fourth , hecks were appointed to be five inches wyde ; which is confirmed , by an act . it was answered , that the act king iames the th . did relate to a former act of king davids , which was not to be found , but there were two acts by king iames the . relating to the old act by king alexander , which was found to bear three inch. so that the act k. iames the th . though posterior , being but relative , and the act related not known . the lords found , it was a mistake , in the writing of the act ; and that in the stead of king david , it should have expressed king alexander ; and so born only three inches , seing otherwayes five inch would let the greatest part of salmond passe . ly . they insisted for the saturndays slop ; and craved , that on saturnday the whole cruives might stand open : so that no fish might be taken thereby ; according to the old statute of king alexander ; from the even sun on saturnday , till the sun rising on munday . the lords found , that the saturndays slop ought to be of the whole cruives , and that from saturnday at six a clock , till munday at sunrising . ly . they insisted for the hight of the cruives , and alleadged , that the same ought to be no higher then the water , in its ordinar course , neither the time of the flood , nor of drought ; otherwayes they might build the same as high as they pleased , and that it ought not to be builded perpendicular , which will hinder the salmonds up-coming , but slopping from the ground to the top . the lords considering , that there was no particular law , as to the hight of cruives , and that ●hir parties had suffered the other to enjoy the cruives above . years , that therefore the same should be uti possidebantur , no higher then the old cruives were . ly . they insisted for the liberty of the midlestream , beside and attour saturndays slop , which is specially contained in the acts of parliament of king alexander , and king iames the third and fourth , and is renewed in the late act of parliament of king charles the second . the least quantity of which bears , that five foot of the middle stream must be constantly free . it was answered . that the old acts anent the midle stream were wholly in desuetude , and were in effect derogate , by the act of king iames the sixt , anent cruives ; which ordains the saturndays slop to be keeped , but mentions not the midle stream . and as for the late act of parliament ; it was impetrat by these same parties , and never past in articles , or noticed by the parliament , but as an ordinar confirmation . it was answered , that there was no prescription of publick rights , against standing laws , and albeit the desuetude of such laws could be effectual , yet the late law revives and confirms them all , per expressum , which is not a particular confirmation ; bearing mention of any particular partie , or particular right ; but as a general confirmation of general laws , anent all the cruives in scotland . the lords considering that the midle stream has been long in desuetude , and that this late ratification was past without notice ; therefore , before answer ; they ordained the parties to adduce witnesses , whether the midestream was accustomed in any cruives in scotland , and whether the same would be beneficial , or hurtful to the salmond fishing of the kingdom , in general , and whether it were destructive to the cruives in common : and likewise , they gave commission to examine the witnesses hinc inde , whether their new cruives were builded upon challes , or they otherways builded then the former cruives , to the prejudice of the fishing above in the water . george hutcheson contra dickson of lonhead . eodem die . george hutcheson pursues dickson , for a sum of money● and for the annualrent since the denunciation of the horning . whereupon the defender answered , that the horning was only at the mercat cross of edinburgh , where the defender dwelled not , and so was null , and could not give annualrent . it was answered , that albeit such hornings be not sufficient for an escheat , yet they are sufficient for caption ; and so are not null : and therefore annualrents having so much ground , in equity , and by the civil law , being due ex mora ; such denunciations should be sufficient for annualrent . the lords found such hornings null , and would not allow annualrent . logan contra galbraith . eodem die . logan charges galbraith to remove from a house ; who suspends , and alleadges , that she is served , and kenned to a terce of the house , which terce she brukes pro indiviso , with the two thirds . the charger answered , the reason ought to be repelled , because , albeit the defense pro indiviso be relevant against such , who can obtain division : it being their own fault , that they do not first divide , or they pursue removing ; but where it is a house being unum tenementum indivisibile , the heir , or successor of the husband , who has two thirds , and continues in his possession as well as the relict in her third , ought to be preferred in the possession , quia majus trahit minus . the lords found the answers relevant , to elide the reason , and decerned the relict to remove with this quality , that if the feear did not dwell in the house himself , the relict should be preferred , giving as much mail as any other tennant , and giving caution for the two part . lairds of berfoord and binstoun , contra lord kingstoun . ianuary . . berfoord and binstoun pursues the lord kingstoun , for spuilzie of certain corns ; he alleadged absolvitor , because he legally drew the same , as their teynd , by vertue of his tack from the present minister , and inhibition thereon . it was answered , first , that was not sufficient summarly to draw the defenders teynds , unless there had been a sentence on the inhition , which is but as a warning , and so must not infer removing , brevi manu ad vitandum tumultum , ly . if he had legally pursued them for a spuilzie , they would have alleadged , and now alleadge , that they have tacks standing from the minister for the time , who , though deposed , yet lives ; and all incumbents tacks serve during their natural life , and no tack from the next incumbent prejudges during the life of the former , conform to an expresse act of parliament . the defender duplyed , that albeit an act of parliament required removing not to be summarly , in lands it did not so in teynds . ly . the pursuers tacks are null , without consent of the patron . the pursuer triplyed , that they are standing cled with seven years possession , and their tacks are subscribed by the patron quadruplyed , he was not then patron , but was standing fore-faulted unrestored . quadruplyed , it is sufficient coloratus titulus cum possessione , till the reduction ; and the lord bothwells son patron , was after restored whereby it revived . the lords repelled the defense , in respect of the pursuers tacks , and found the defender might not brevi manu intromet , there being any pretence of title , but they desired the pursuer to restrict , to wrongous intromission and without oath in litem sir john scot and walter scot contra sir john fletcher . eodem die . walter scot , as being assigney , by sir iohn scot of scotstarvet , to an atlas major , of the late edition ; pursues sir iohn fletcher for delivering thereof , as belonging to the pursuer , and now in his hand . the defender answered , non relevat , unlesse it were condescended qu● titulo ; for if it came in the defenders hands , by emption or gift , it is his own : and in mobilibus possessio presumit titulum , seing in these writ , nor witnesses uses not to be interposed , and none can seek recovery of such , unless he condescend quo modo desijt possedere , else all commerce would be destroyed , and who ever could prove that once any thing was his , might recover it per mille manus , unless they instruct their title to it . . though it should be condescended , that they were lent , yet it must be proven only scripto vel juramento , being a matter above an hundred pound . the pursuer answered , that in liquid sums , or promises , witnesses are not receivable above that sum , but in corporibus , or facts , as in bargains of victual , made and delivered , witnesses are sufficient , though for greater value . the lords found the pursuer behoved to condescended upon the way the books was delivered , and found it probable by witnesses . mr. william kintor advocat contra john boyd baillie in edinburgh , eodem die . mr. william kintor and iohn boyd having both adjudged the lands of mountlouthian pursue mutual reductions of each others rights ; mr. williams right was upon a decreet , cognitionis causa , against the appearand heir renuncing : against which iohn boyd , alleadged , that the adjudication was null , proceeding upon a null decreet , cognitionis causa . first , in so far as it was lybelled at the instance of kintor , as assigney by his brother , who was heir to his father , and execut-executor , and neither retour nor testament produced , and so was null , for want of probation . the pursuer answered , that he had now produced , in supplement of the decreet , the writs . the lords sustained the decreet only as ab hoc tempore . ly . boyd alleadged , that the decreet , cognitionis causa proceeded on six hundered merks , which was heretable by infeftment , and contained clause of requisition , and no requisition produced . the lords found the decreet null pro tanto , and to stand for the rest , being upon diverse articles . ly . boyd alleadged , that the said decreet ought to be reduced , in so far as it proceeded against the cautioner of a tutor , for payment of the annualrent of his pupils money , during the tutorie ; and for the annualrent of that annualrent a tut●la finita , because the tutor had uplifted , at least ought to have uplifted , and imployed the same for the pupills behove , ex officio . it was answered , that albeit tutors are oblidged for their pupils rent , which are in tennents hands ; yet not for the annualrent of their money , being in secure hands then , and now if the tutor had lifted it , it would have been lost he being broken ; and the cautioner also : and the debitors being great men , as the marquess of hamiltoun and lord burghlie , they would easily have suspended , and lost the pursuers pains . the lords found , that tutors were oblidged to uplift their pupils annualrents , though the creditors were secure , and to imploy them for annualrents , but not for each year they were due , but ante finitam tutelam , because , though he had them , he was not oblidged every year to imploy them severally , and so sustained the decreet . ly . boyd alleadged , that the years of the tutorie ought to have been proven , which was not , and so the decreet is null . the lords sustained the decreet , seing it was lybelled in communi forma , unless it were alleadged , that some of these years were post sinitam tutelam , here a testificat of the pupils age was produced . lord borthwick contra . mr. mark ker. ianuary last . . the lord borthwick pursues a reduction , ex capite inhibitionis of all rights made by sir mark ker , to andrew or mr. marks ker of moristoun , of certain lands . the defenders alleadged no process , because none to represent sir mark ker were called , who being bound in warrandice to the defenders , ought to be called ; whereas , of old processes sisted till warrands were first discussed ; so now the warrand ought at least to be called . the pursuer answered , that he was not craving reduction of sir marks own right , but of moristouns right , granted by sir mark , who was common author to both . and as to the warrandice , the defender might intimat the plea , if he pleased . the lords found no process till the warrand were called . alison kello● contra pringle . eodem die . alison kello pursues a reduction against the lairds of wadderburn● and pringle ; and craves certification . it was alleadged for pringle , no certification ; because he was minor , & non tenetur placitare de haereditate paterna . the pursuer answered , primo non relevat , against the production , but the minor must produce ; and may alleadge , that in the debate against the reason . ly . non constat , that it is hareditas paterna , and therefore he must produce , at least his fathers infeftment . ly , all he alleadges , is , that his father had an heretable disposition , without infeftment ; which cannot make haereditatem paternam , else an heretable bond were not reduceable , against a minor , or an appryzing , and tack . ly . albeit the alleadgeance were proponed , in the discussing of the reason ; yet the reason being super dolo & metu , upon which the defenders original right was granted , and not upon the poynt of preference of right ; the brocard holds not in that case , as it would not hold in improbation , in casu falsi . the lords found , that the defender ought to produce his fathers infeftment ; and that a naked disposition would not be sufficient : which being produced , they would sustain the defense , quoad reliqua , against the production ; but that they would examine witnesses , upon any point of fact , in the reason to remain in retentis , that the witnesses might not die in the mean time , without discussing the reason , but prejudice of their defenses . anderson and proven contra town of edinburgh . eodem die . anderson being creditor to proven , arrests in the hands of gairdner all sums due by him to proven , and thereupon pursues before the commissaries of edinburgh : gairdner gives his oath , that he is debitor to proven no way , but for the tack dutie of the customs of edinburgh ; whereunto he was sub-tacks-man to proven , conform to his bond produced ; whereupon , the commissaries decerned , gairdner suspends on double poynding . it was alleadged for the town of edinburgh , that the sum in question , being a sub-tack dutie , they had the common priviledge of all masters against their tennents , and sub-tennents , that they might pursue either of them , as they pleased , without an arrestment , or any diligence , and were alwayes preferable , for their tack-dutie to any other creditor of the principal tacksman . it was answered , that custom was not in the case of rents of lands ; wherein their is tacita hipotheca , and that the principal tacks-man was only their direct debitor ; and the sub-tacksman paying to the principal tacksman ; or which is equivalent , to his creditor , is for ever free : and the town of edinburgh , hath secured themselves , by taking caution of the sub-tacksman . the lords found the town of edinburgh preferable , for their tack-dutie , and that they had immediat action against the sub-tacksman , unless he had made payment , bona fide before , that they might exclude any other creditor of the principal tacks-man , for their tack-dutie . george baptie contra christian barclay . eodem die . christian barclay having pursued george baptie , before the commissares , of edinburgh , for solemnizing marriage with her ; because he had gotten her with child , under promise of marriage ; as was instructed by his bond produced , obtained decreet against him ; he suspends , and raises reduction , on this reason , that his bond was vitiat , in substantialibus , by ocular inspection . . that it was conditional , so soon as he was in readinesse . ly . that the charger threatned she would drown her self , for preventing whereof , he had granted this bond. ly . that after the granting thereof , she had carried her self unchastly , and born another bairn ; albeit it cannot be alleadged , that ever he co-habited , or conversed with her at all after this bond : which as it would dissolve the marriage , though it were solemnized , multo magis should it hinder the solemnization . the charger answered , to the first , oppons the bond , wherein albeit there be three or four words delet in that place , thereof oblidging him to solemnize ; yet the acknowledgment of the childs being gotten under promise of marriage is clear , and sufficient by it self . to the . there is nothing alleadged , that the suspender is not in readiness . to the . non relevat , there being neither vis nor metus . to the th . non relevat , because there being a second child born after this bond , which constituts the essentials of a marriage , the child is presumed to be the suspenders , nam pater est quem matrimonia monstrant , and it cannot be alleadged , or proven , that the child belongs to any other , or that the charger used any evil carriage with any other . the lords having considered the case , found that the presumption was not sufficient , unless it had been a formal marriage , and therefore ordained the charger to instruct , the second child was the suspenders ; and if there had been any familiarity betwixt them since the bond. kirktouns contra laird of hunthill . ianuary ult . . two sisters called kirktouns , having obtained decreet against the laird of hunthill , for their mothers executrie , who left hunthill her brother , and two other , tutors to her children , in so far , as concerned the means , left them by their mother ; hunthill suspends , and raises reduction , on this reason . first , that the only ground of the decreet being a confirmed testament , bearing , that hunthill compeared , and made faith , and accepted the office of tutory ; this cannot be sufficient of it self , to instruct he was tutor : seing acts of inferiour courts prove not in any thing , but in points of form of process , which are ordinary , ●but in alijs , prove not without a warrand , and therefore , unless the warrand of this acceptance were produced , it cannot prove more then an act of tutorie , or curatrie , or cautionrie , will prove without its warrand ; and therefore now they crave certification against the same . ly . neither their subscription to the act nor the principal testament it self , can be found , though the registers of that commissariot , be searched , and others , about that time found neither can it be astructed with the least act of medling any way . ly . a mother cannot name tutors , but the father only , it being patriae potestatis . it was answered , that albeit in recenti the warrands of such acts , ought to be produced , or they are not effectual with out the same : yet it being thertie seven years since this confirmation , after so may troubles , the chargers are not oblidged to produce the warrands , being such inconsiderable litle papers as they are , but they must be presumed , that they were so done , as is expressed in the publick record ; seing this process has lasted these twvelve years , and before , nor since ; till within a year , no mention thereof . it was answered , that there was no prescription run , during which , if at first , the chargers were oblidged to produce , they are still so unless they could fortifie , and astruct the truth aliunde , and their silence saith nothing , because it was the chargers fault , that pursued not till within these twelve years , whereas , if they had pursued timeously the suspender would then have pursued a reduction . it was answered , they were minors , in the suspenders own house the former time , who would not have keeped and intertained them at all , if he had not known of the tutory , and that they had means . the lords found that this naked testament was not sufficient to astruct the acceptance , without further adminicles . elphinstoun of selmes contra the lord rollo , and the laird of niddrie . february . the lord rollo being addebted in a sum , to umquhil mr. david anderson of hill , margaret anderson his daughter , gave a procuratorie to intromet with all papers , and to uplift all sums belonging to her in scotland , to iohn anderson , whereupon iohn anderson discharges the lord rollo , and takes a new bond from him , and assignesit to niddrie . thereafter selmes getting assignation from the said margaret , rollo suspends on double poynding ; selmes alleadged , that he , as assigney , had right to the sum. it was answered , that rollo was discharged by the procurator , before the assignation . it was answered , primo , that the procuratory was null , because it wanted the designation of the writer , and witnesses . ly . it was offered to be improven as false and fenzied . it was answered to the first , that the procuratory was made in ireland , secundum consuetudinem loci , where designation of witnesses is not required , but a writ , being sealed , subscribed and delivered before witnesses , albeit they be not designed , the writ is effectual . to the second , the lord rollo , having made payment bona fide to a procurator , albeit the porcuratory should be improven ; the debitor not being accessory , but paying bona fide , could not repeit , otherwayes all commerce would be marred , and no body will be secure to pay to any assigney , or procurator , but as payment made , bona fide to them that have no right , is relevant , only because it is done bona fide , and necessarly ; so must it be good , though they have forged the procuratory . it was answered , that payment was not yet made , but only a new bond granted , and that it could not be bona fide ; seing the procuratory , wanting the ordinar solemnity of witnesses designed , might have given just ground of doubt , and the debitor was not to have payed without sentence . the lords repelled the first alleadgeance , and sustained the writ , according to the custom of ireland ; being nottour to themselves . as to the other point : the lords did not decide in it till it appeared , whether niddrie would prev●●● upon the new bond , and make it equivalent to payment : but they thought that payment made bona fide would be sufficient , albeit the writ were improven , where there was no ground to doubt . sir john fletcher supplicant . february . . sir iohn fletcher having bought the lands of crainstoun , and finding that there was an appryzing to be deduced thereof for his authors debt , which might cost him trouble ; he craved assessors to be appointed by the lords , who considering the matter amongst themselves . it carried by the plurality of one or two , to name two advocats assessors , but many were on the contrary , conceiving the example of it , would be of great inconveniency , seing appryzings were not with continuation of dayes , and if parties compeared , and alleadged they were infeft , yet there may be inhibition , anterior reversion , or trust , or nullities in their right : and if these were denyed , they behoved to be instructed , and so terms of probation run , while in the mean time the anterior diligence of others , appryzings in the countrey , before the sheriff would prevent them , and it would hinder any appryzings ever to be deduced at edinburgh , and it were hand to put creditors , who knew not there debitors charter chist , to disput their rights as in an executive process . but the lords inclined , that sir johns infeftment should be rather produced , and reserved out of the appryzing , then the appryzing stopped . falconer contra earl of kinghorn . eodem die . falconer pursues the earl of kinghorn , for payment of a bond , wherein his father was cautioner . it was alleadged the bond was null , as to kinghorn ; because it mentioned in the first place , three witnesses to another parties subscription , per expressum , mentioning two , without their designation , or expressing whether they were witnesses to either , or both the two cautioners : and therefore the bond was null , by the act of parliament . it was answered , that according to the ordinar custome , they offered to design . it was replyed , that the designation behoved to be of living witnesses ; for seing in it self , the bond is null , by the act of parliament , and that the lords , by custom , have supplyed such bonds , per equivalentiam . the intent of the act of parliament being only , that by the designation , the witnesses might be known : and thereby a means of improbation afforded , if the writ were quarrelled ; but after the witnesses are dead , the degsination of them cannot attain that effect . the lords ordained the pursuer to design living witnesses , or otherways , to condescend upon other adminicles , to astruct the verity of the subscription of the bond. beg contra beg. february . . thomas beg in edinburgh , having a son of his first marriage , and providing his children of two subsequent marriages to his means . the son of the first marriage pursues his father , for his mothers third , and craves annualrent therefore , he being minor , and his father his tutor of law , and therefore lyable , as other tutors for annualrent . which the lords found relevant . paterson contra pringle eodem die . isobel paterson having lent to pringles wife a . lib. scots , and having received a bond of pringles in pand thereof , he thereafter seeking a sight of the bond , took it away without warrant , whereupon she obtained decreet against him , before the commissaries , which he and his wife suspended , on this reason , that he never borrowed any sum from the charger , and if his wife did borrow the same , he knew nothing thereof , or that it was applyed to his use , and that she impignorat his bond without his knowledge , or warrant . the lords found , that her having of the bond , in her hand did infer a warrant to borrow the money , and oblidge her husband being a matter of small importance . peter pallat contra thomas fairholm . ● february . . thomas fairholm merchant in edinburgh , having written a letter to peter pallat factor at burdeoux , to loaden him tun of wine . the tenor of the letter , is , that in respect fairholm was not acquainted with pallat , he had written upon the credit of his brother ninian williamson factor at london , who was pallats ordinar correspondent , to load these wines in that ship , which carried the letter , upon fairholms accompt ; and bore , that williamson had provisions to satisfie the same , and that he would either remit to pallat , or draw upon him , as he found convenient . this letter being sent under a cover of williamsons to pallat , the wines were sent into scotland , and williamson broke about a year thereafter whereupon pallat pursues for his money from fairholm , who alleadged absolvitor , because he having demanded the vvines , not upon his own credit , but williamsons , and williamson having sent under his own cover , as palla●s letter bears , the said order , in which there being mention , that williamson , had provisions in his hand : his sending the letter of that tenor , under his own cover , is an acknowledgment , that he had those provisions , and thereby he constitute himself debitor to pallat , and freed fairholm : likeas , pallat acquiesced therein , and drew bills upon williamson● which were accepted , but not payed ; and was silent , never demanding money from fairholm , till williamson was broken , so that first , fairholm is free , by the tenor of the letter , and next , though , thereby he had been bound , yet the damnage sustained by pallats silence , till williamson was broken , whereby fairholm was hindred to draw his provisions out of williamsons hand , and thereby lost the same through pallats fault , ought to compence pallat , and exclude him . pallat answered to the first , that he opponed the letters ; which bore expresly the wines to be sent for fairholms accompt ; so that albeit it mention williamsons credit , and that he had provisions , it makes him but expromissor , and liberats not fairholm : as to the second , anent the damnage , pallat being secured , both by fairhlom , and williamson , might at his option , take himself to either , or to both ; and cannot be accompted to have done any fault , in forbearance of either , though an unexpected accident , of williamsons breaking interveened ; so much the more , as fairholms letter does not order to draw upon williamson ; but bears , that fairholme would either draw , or remit , at williamsons conveniency : so that pallat has not failed , in the strick observance of the order . and if need be , pallat offers him to prove , by the custom of merchants , in the most eminent places abroad , that such letters did never liberat the writer . and fairholm offered to prove , that such letters did liberat the writer , unless the receiver had protested , and intimat to the writer , that he would not acquiesce therein simply , but also in the credit of the writer . the lords found , that the letter did not liberat fairholm , notwithstanding of his forbearance to demand , and therefore repelled the defenses , and decerned , but liberat fairholm from the exchange , and re-exchange : in regard of pallats silence , neither would the lords delay the matter , upon the opinion of merchants . david graham contra george bruce and doctor mairten . eodem die . david graham , upon the sight of a bond unregistrat , of george bruces , obtained arrestment ; and therewith arrested a sum , in doctor martines hand , which was loosed , and after the loosing , assignation being made by george bruce , to his sister . in which case , the lords found , that the arrestment being upon the bond , before registration might be loosed , and notwithstanding of the loosing , seing it was not now payed by the debitor ; they ordained it to be made forthcomand to the arrester , and preferred him to the assigney , albeit it was alleadged , that the tenor of the arrestment was but till caution was found , which being found : albeit the debitor could not oppose to make it forthcoming ; yet an assigney , after loosing the arrestment may let . the lords considered , that the caution found , in loosing arrestments , is overlie , and insufficient , and so would not insecure creditors , doing diligence by arrestment . lyon of muirask contra heretors of the shire . eodem die . lyon of muirask , having been commissioner in the parliament . did , by vertue of the act of parliament , . allowing commissioners charges , to these who served in parliament . who adhered to the engadgment ; charges the ●●eretors of the shyre to meet , and stent ; and their being a stent made , conform to the valuation : he charges thereupon● some of the heretors suspends , and alleadge , that they were not charged to meet , and so the stent roll is null . ly . that is not instructed , that the charger attended all the dayes in the parliament . ly . that the roll ought to be made according to the retour , and not to the valuation , conform to the custom before the troubles . the lords found , that , seing the heretors , who met , expressed in the stent roll , that all the heretors were charged , that it was sufficient , though the executions against each on of them was not now produced , and because the sed●runts of the parliament . were not to be found , they found he had right to the whole charges during the parliament , unless for such time , as they shall prove by his oath , that he was absent , but found , that the stent roll ought to be according to the retour , and not to the valuation : lady greenhead conra lord loure . february . . the lady craig , and the laird of greenhead her second husband pursues the tenents of craig wherein she is infeft , for mails and duties . in which process , my lord loure co●●pears for his interest , and alleadges , that he having appryzed the estate of craig , and being infeft , thereupon hath raised reduction of the ladies infeftment , on this reason , that a part of his sumes being anterior to the ladies infeftment , who was competently provided , by her contract of marriage , in . chalder of victuall , and this additional infeftment of fifty chalder of victual , being betwixt most conjunct persons ; husband and wife : in so far as it is posterior to the pursuers lawful debt ; ought to be reduced upon the act of parliament , . the pursuer answered , the reason ought to be repelled . first , because the act of parliament being only against gratuitous dispositions made by bankerupts , in prejudice of their lawful creditors , is not relevant : seing craig the disponer was not a bankerupt ; ly . as he was not a bankerupt , so neither was he● insolvendo ; because the reversion of his estate is sufficient to pay his debt , albeit the same were affected with this additional joynture . it was answered , for the defender , that albeit the title , and narrative of the act , be against bankerupts , yet the statutory part thereof , is against all gratuitous dispositions , by conjunct persons : so that the defender needs not alleadge , that either the disponer was bankerupt , or insolvendo , but that the ladies infeftment is betwixt conjunct persons : without an onerous cause . the pursuer answered , that the disponer was neither bankerupr , nor insolvendo ; and the defender can have no interest : unless there were fraud or prejudice which the defender cannot alleadge ; because the pursuer is content , that the defender have access by his appryzing to the joynture lands , in so far as will satisfie his annualrents , and by the act betwixt debitor and creditor● the lords are impowred to restrict appryzings to their annualrent , and so he can pretend no prejudice ; providing he assigne the lady to his appryzing , in so far as he satisfies his annualrent , out of her additional joynture . the lords found the answer to the reduction relevant , upon purging of the appryzers prejudice , not only by admitting him to have access to the appryzed lands upon assignation , as said is , during the legal , but with declaration , that if the lady redeemed not within the legall , the lands should be irredeemable , and the lady totally excluded earl of lauderdail contra lord oxfuird . february . . the earl of lauderdail his guidsir , being infeft in the barony of musselburgh , which is a part of the abbacy of dumferling by a gift from king iames , in anno . excepted by the act of parliament , for annexation of kirklands , in anno . and repeited in the act of parliamet . his father got a gift in anno . and oxfuird got another the same year from the king , as heir to queen ann his mother , who had a heretable disposition of the whole lordship of dumferling from the king , after lauderdails first right ; lauderdail obtained conformation of his first and subsequent rights , in the parliament . declaring all rights formerly granted by the king since lauderdails first right , void . which ratification , bears , an express provision , that it shall not be prejudged by the act salvo jure cu●uslibet . the defender alleadged , absolvitor in hoc judicio possessorio ; because his father was infeft by the king , in anno . and by vertue thereof in possession , twenty years before this persuit : and as for his ratification , the defender not being called thereto ; it cannot take away his right , being founded super jure communi untill the pursuer insist in reduction . in which case , the defender shall answer , but is not oblidged to answer in hoc judicio , and as for the exception of the act salvo jur : it s against the common law : and the act salvo jure ; is posterior without repeiting that exception . the pursuer opponed his ratificatiom , excepting the act salvo jure , which being done upon the king and parliaments certain knowledge upon consideration of lauderdails prior right . the lords cannot be judges to reduce the sentence , and statute of parliament ; as durie observes to have been found in the case of the earl , of rothes and iohn stewart of coldinghame . the defender repei●ed his answer ; and for these decisions , opponed the tennor of the act salvo jure . and repeited , . whereby the lords are ordained to decide , in the rights of privat parties , according to law , without respect of ratification , or other privat statuts , in favours of particular persons , such as this , which being after this decisions , clears and enlarges the power of the lords . the pursuer opponed his ratification , and exception of the act salvo jure , which bears expresly , that it should stand as a publick law , and so was no privat statute , mentioned in these acts , salvo jure . the lords having considered the case , and that such exceptions from the act salvo jure were of dangerous consequence to the leidges . they ordained the parties before answer , to dispute the point of right as if such an exception of the act salvo jure , had not been granted , but they thought that defense upon a possessory iudgement , being but a point of form , whereby the rights of parties were not competent by exception , or reply : the parliament might dispense therewith , and also might repone parties , as to the matter of prescription , or quoad minor non tenetur placitare , but if without these and such , the pursuer had a prior valid right . the lords were loath to enter upon the case of the exception of the act salvo jure . scot of thirlston contra scot of braidmeadow eodem die . scot of thirlston having right to the teynd of midshef ; and pursues the possessor for . years bygone , and in time coming , who alleadged absolvitor ; because these teynds are allocal to the church , co●●or● to a decreet of locality , produced : bearing , such a stipend and locatting , so much of it , and for the rest● that the minister had the teynds of midshef . it was alleadged , that this could not instruct , that those whole teynds were allocal ; but so much , as made up that rest : and the teynd is worth twice as much , and therefore the minister had but the twenty lamb , for the teynd , which is but half teynd and was lyable to the pursuer for the rest . it was answered , that teynds are secundum consuetudinem loci , and if tyends had never been payed , none would be due , and if the twenty lambs was all ever payed , they could be lyable for no more : the lords found , that before the intenting of the cause , they would not allow any more nor then what was accustomed to be payed , unless the pursuer , offer him to prove , that there was a tack , or use of payment of more , which they would allow accordingly . sir william thomson contra town of edinburgh , february . . the magistrats of edinburgh , having deposed sir william thomson town clerk , from his office , on this ground , that a tack of the new imposition , and excise being set to their tacks-men , ( which was to have been subscribed by him , as clerk , for the deacons of the crafts , ) he had given it up to the tacks-man , and had not taken their subscription thereto , neither to their own double , nor taken another double for the town , albeit the tack duty was fourscore thousand merks yearly , for two years ; and that it being an uncertain casuality , the value of it was most difficult to prove , and not but by the tacks-mens own oath . sir william raised reduction , on several reasons , especially that the sentence was unjust , in so far as it was the puting on of an exorbitant , and incommensurable punishment , of deprivation from an office of so great value , upon a fault of meer negligence , or escape : and that before the sentence , the tack-dutie was all payed , but four monethes , and now all is payed , and that sir william was still willing for to have made up the towns damnage . it was answered , that here was no process to put a punishment commensurable on a fault , but sir william having , by the free gift of the town had so profitable a place for his life , upon consideration of his fidelity and diligence , there is implyed in it , as effectualy , as if exprest , that it is ad vitam aut ad culpam : so that the cognoscing of the fault is the termination of the gift freely given , so if their be a fault justly found by the town , they might well take back their gift , they gave upon that condition implyed , for it was not the loss in eventu ; nor dolus in proposito , that made such a fault ; else all negligences imaginable would not make it up , though a servant should leave his masters house , and coffers open , if nothing happened to follow ; yet the fault was the same , and could not be taken away , by making up the damnage , but here was a fault of knowledge and importance : for sir wil●iam could not by meer negligence , nor ommission give away the tack to the tacks-men , and neither see them subscribe their own double , or any other , nor subscribe himself , this fault was likeas in his office , he had a particular gratuitie , as clerk to the excise . the lords repelled the reason of reduction , and found the sentence not to be unjust , upon this ground ; because they thought that sir william being a common servant , who by his act of admission , had specially engadged never to quarrel the pleasure of the magistrats , they , as all masters have a latitude , in cognoscing their servants faults , wherein , though they might have been wished to forbear rigor , yet having done it by their power , as masters over their servants ; the lords could not say they had done unjustly , but found that the committing such a fault terminat their free gift , being of knowledge and importance , but found that if it could be proven , that the tack was duelie subscribed , and lost thereafter , which was not of knowledge , but of meer omission , incident to any person , of the greatest diligence , they would not find that a sufficient ground to depose him . bishop of dumblain contra earl of cassils . february . . the bishop of dumblain pursues the earls tennents , for the teynds of the abbacy of cor●regual , as a part of his patrimony annexed thereto , by the act of parliament . the defender alleadged no process , till the act of annexation , being but an act unprinted were produced . ly . absolvitor , because the defender had tacks from the king , in anno . and by vertue thereof was in possession , and could pay no more then the duties therein contained , till they were reduced . it was answered to the first , it was nottour , and if the defender alleadged any thing in his favour , in the act , he might extract it . ly . the defender could not claim the benefit of his tack , . because the bishops are restored to all they possessed in anno . and so not only right , but possession , is restored to them as then , which is as sufficient an interruption by publick law , as if it were by inhibition , ot citation . which the lords found relevant , being in recenti after the act , and never acknowledged by the bishops . boyd of pinkill contra tennents of cairsluth . eodem die . pinkill , as donatar to the waird of cairsluth , pursues removing against the tennents , whose master compears , and alleadges , that the gift was to the behove of the minor , his superiour ; who , as representing his father and guidsire , was oblidged , in absolute warrandice , against wairds per expressum . the lords considering , whether that could be understood of any other wairds , then such as had fallen before the warrandice , or if it could extend to all subsequent wairds , of the superiours heir , and so to non-entries , &c. which they thought hard ; seing all holdings were presumed waird , unlesse the contrary appear , and the superiour could not be thought to secure against subsequent wairds , unlesse it were so specially exprest , all wairds past and to come : yet seing it was found formerly that if the superiour take such a gift , and be bound in warrandice , that the same should accresce to the vassals paying their proportional part of the expense , and composition , they found the defense , that this gift was to the behove of the superiour relevant , ad hunc effectum , to restrict it to a proportional part of the expense . hellen hepburn contra adam nisbit . february . . hellen hepburn pursues adam nisbit , to remove from a tennement in edinburgh , who alleadged absolvitor , because he had a tack standing for terms to run . it was replyed , that the tack bore expresly , if two terms run in the third unpayed , the tack should expire and be null , ipso facto , without declarator . it was answered , that notwithstanding clauses so conceived . the lords hath been accustomed to put them to declarator , in which case they have the priviledge to purge the failzie at the bar , and if need beis , the defender will now purge . the lords found the reply relevant , in respect of the conception of the clause , and would not suffer the defender to purge , for albeit in declarators against feues , ob non solutum canonem , the lords will suffer the defenders to purge at the bar , when the pursuite is upon the act of parliament yet they will hardly suffer them to purgewhere that clause irritant is exprest in the infeftment : so proprietars may pursue their tennents for failzing to pay the duties of their tack , and to find caution in time coming ; else to remove when there is no such clauses irritant , and then they may purge , but when the clause irritant is exprest , there is far less reason they should have liberty to purge in tacks then in feus , where the penalty is much greater . pringle of torsonce contra ker of sunderland-hall . february . . prringle having appryzed the right of a wodset , from the heirs of sir george ramsay , does thereupon require and charge for the money . it was alleadged , that he cannot have the wodset sum , unless he not only infest himself in the wodset , and renounce the same , but put the defender in peaceable possession , as he did possesse the wodsetter , from whom the pursuer appryzed : and who can be in no better case , then the wodsetter himself . the pur●uer answered , that he was willing to renounce all right and possession , but could not put the defender in possession ; because a thrid partie had intruded himself , without the pursuer , or his authors fault , and the wodset being but a pledge , the hipothecar is not lyable contra vim major●m , but only pro culpa lata & levi . therefore if a pledge be taken away by force , it hinders not the creditor to demand his sum. the like must be in intrusion , which is an act of force , and the pursuer , who hath only his annualrent , is not oblidged to consume the same upon recovery , but the defender may do the same . the defender answered , that whatever might be alleadged , in the case of intrusion , if in continent , the wodsetter had intimate the same , and required his money , yet this intruder has continued a long time . the lords found the defense and duply relevant to stop the payment of the money till the possession were delivered , seing the intrussion was ex inter vallo . james butter contra gray of balbrino . eodem die . james butter having pursued gray for payment of a sum of money , he alleadged prescription , because fourty years had run from the date of the bond , being the last of december . before any judicial act , or other interruption done thereon . the pursuer replyed , that he had cited the defender , upon the first summons upon the of december . . which was six days within the fourty years , from the date . ly . it was much more within the years , from the term of payment of the bond , from which only , and not from the date prescription runs , quia contra non valentem agere , non currit prescriptio . the defender answered , that the citation on the first summons , was not sufficient , unless there had been an act of continuation or some judicial act within the year ; because the act of parliament bears expresly , if the creditor follow not , and take document within years , the bond shall expire . the lords found the reply relevant , and that the citation on the first summons was sufficient , being within years of the term of payment . sir john baird contra magistrats of elgine eodem die . sir iohn baird pursues the magistrats of elgine , for the debt of a rebel , escaping out of their prison , who alleadged absolvitor , because the rebel had the benefit of the act , debitor and creditor ; and produced the clerk of the bills certificat thereupon , when he was offered to prison , and being imprisoned joyntly for an other debt . the magistrats protested , that they excepted him not prisoner for this debt . it was answered , that the benefit of the act contains an express nullitie , if the annualrents be not payed conform thereto . the defenders answered , that they could not be judge to the discharge , and that upon the like case , of a protection of the kings , the magistrats of strivling were liberat . the lords repelled the defense , unless the clerks attest , the discharge had been first produced , or shown to the magistrats before the prisoner was let go . in which case , they might either have refused him , or let him goe free . marquess of huntly contra gordoun of lesmore . february . . the marquess of huntly , as donatar to the forefaulture of the marquess of argyle , as to the estate of huntly , obtained decreet of parliament against gordoun of lesmore , for payment of the mails and duties of certain lands , and for removing therefrom . he suspends , on these reasons , first , that the decreet was null , not preceeding upon lawful citation , but far fewer dayes then is appointed by law , and that he was absent , and now alleadges , that his right to the lands in question , was by excambion with the marquess of argyle , for lands holden of the marquess of huntly , which he had possessed thirtie or fourtie years before , and thereefore , if the pursuer were dispossessed of the lands in question , he behoved to possesse him in other lands . ly . the decreet is null , as not proceeding upon tryal of an inquest , cognoscing , the marquess of argyle heretable possessor five years before ; conform to the act of parliament : nor could that be cog●o●●ed , because , the defender himself was heretable possessor these years . ly . the defenders right from the marquess of argyle , albeit it was post comissum crimen , yet the cryme was latent , proceeding upon missive letters of his , that was found out of the english hands , which the defender could not know . the pursuer answered to the whole ; that he opponed the decreet of parliament , which ought not to have been suspended , by the lords of session , who are not judges to decreets of parliament , who may dispence with the dyets , and solemnities of law , and the pursuer insists not upon the benefit of the five years possession , but upon this ground , that the defenders rights from the house of huntlie , or from argyle were holden base of argyle , and not confirmed by the king , and therefore by the forefaulture of argyle the superiour , who , by his right came in huntlies place , these unconfirmed base rights fall . which the lords found relevant , and in the same process , mails and duties being but generally decerned , without expressing the quantities . the lords ordained the pursuer to condescend upon the quantities , and gave him a term to prove . viscount of kingstoun contra collonel fullertoun . eodem die . the viscount of kingstoun pursues collonel fullertoun , upon the warrandice of an assignation , made by the said collonel , to sir arthur dowglass of whittinghame . the defender alleadged absolvitor , because the assignation was only made in trust , which he offered to instruct by many adminicles , of which these were the chief ; that by the witnesses adduced , it was cleared , that this assignation remained in the hands of one cranstoun , who was filler up of the date , and witnesses therein ; that it was never delivered to whittinghame , and that the right assigned , was still retained by the collonel , who thereupon obtained two decreets before the lords , and uplifted the money from sir william thomson debitor , cranstoun , who keeped the assignation , being an agent in the house , never questioning the same , nor sir arthur , or any of his , owning the same for the space of year , till of late ; kingstoun gave . merk , to get the assignation out of the hands of one ienkin , who got it from cranstoun , and that the money was to have been presently imployed for the levying of souldiers for a french regement , whereof fullertoun was collonel , and sir arthur livetenant collonel , there were also two letters of sir arthurs produced by the collonel , acknowledging the trust thereof , the one was alleadged to be holograph , but nothing adduced to prove the same , but three other writs , subscribed before witnesses , for comparing the subscriptions therein , with the subscriptions of the letters . the pursuer answered , that so solemn a write , subscribed before witnesses , could not be taken away by presumptions , or witnesses , but either by writ , or oath of partie ; and as to the presumptions adduced , there are stronger presumptions with the solemn writ then against it : fullartoun a most circumspect man , would never have given an assignation in trust , without a back-bond , and that sir arthur died shortly thereafter , anno . and cranstoun died auno . and whittinghams successors were strangers to the business , and the missives adduced were not proven holograph , and were suspect . the lords found the defense founded upon the foresaid adminicles relevant and proven and therefore assoilzied . sir george mouat contra dumbar of hembrigs . eodem die . sir george mouat , as assigney to a tochar of merk , whereunto umquhile dumbaith was contracter , pursues hemprigs , as representing him for payment . the clause of the contract bore , that the husband should have the tochar , out of the first , and readiest goods of the wifs father ; and that he should have annualrent therefore , but did not expresly oblidge dumbaith to pay , and therefore he is not lyable personally , unless he had intrometted with the defuncts means . the lords found the defender lyable , seing the clause being in re dotali , it behoved to be interpret cum effectu , and if it did import only a consent , not to hinder the husband , it signified nothing ; and because in cases conceived passivè , where it does not appear , who is oblidged , the contracter is understood oblidged . campbel contra campbel . eodem die . a wife pursuing her father in law , for imployment of her tochar , conform to her contract . he alleadged absolvitor , because the clause bore expresly , that so soon as the tochar was payed compleatly , he should imploy it ; and so much more for the wifs liferent use , so that , unless it were shown , that the tochar was compleatly payed , he was not oblidged . the pursuer answered , that she was not oblidged to pay the tochar , but her father , and if any neglect or defect were therein , it was not her fault , but the defender ought to have done diligence , debito ●●mpore , and therefore , albeit the tochar were not payed , at least he must imploy his own part proportionable to what of the tochar he hath received . which the lords found relevant , and if the pursuer had not restricted her self to that proportion they would have sustained it simply , for all the defnders own part . kennedy contra weir february . . kennedy of auchtifardel , having charged william weir , upon a bond of merk . he suspends , and raises reduction , upon minority and lesion . the charger answered , minority takes no place where the minor is in dolo , as si minor sein majorem dixerit , but in this bond , the suspender expresly acknowledged himself to be then major . the suspender answered , that eadem facilitate , that he was induced to subscribe the bond , he might be induced to insert that clause , which therefore cannot prove , unless it were otherways proven , that he did induce the charger to lend him money on that ground . the lords found , his acknowledgement in the bond was sufficient , unlesse he instructed , that he was induced to insert that clause , not on his own motion , or that the charger knew that he was minor , or was oblidged to know the same , by being his tutor or curator , or might have visibly known the same , by the sight of his age , and thought it not reasonable to put it to the debitors oath , to disappoint the creditor . jack contra pollock and rutherfoord . eodem die . marion rutherfoord married david clerk , and had no contract of marriage with him , but he having acquired a little ruinous tennement , took it to her and him in conjunct-fee , and in the time of the plague● he provided her to the annualrent of merk . his heirs raises reduction of the provision , as being in lecto agritudinis , after he had keeped his house upon suspition of the plague , of which he died . it was alleadged , for the said marton , that keping the house upon suspition of the plague could not be as in lecto aegritudinis , unless it were proven , that he was infected with the desease , before the provision was granted . ly . even in that case , defuncts are not hindered to give liferents to their wives , for which there is a natural obligation , according to craigs opinion . the lords repelled the first alleadgence , but found the second relevant , in so far as might extend to a competent provision to the wife , and therefore having examined many witnesses hinc inde , upon the estate of the husband , and the tochar , and frugality of the wife , and finding his means did consist in a tenement worth merk by year , beside that inconsiderable tenement , wherein she was infeft , they restricted her annualrent , which came to merk , to . lib. which was about the terce of the tenement , albeit terces of houses within burgh are not due . in this process , the vvife and her second husband , a●d having repaired the other little tenement , which was ruinous , and builded it much better then ever it was ; for which they pursued for the reparations . the lords found , that they ought to have the reparations decerned , not only in so far as is necessary , but in quantum , the heir will lucrari , by getting greater mail to be payed at the wifes death , she leaving the tenement in as good case as now it is . sir james mersser of aldie contra william rouan . february . . sir iames mersser of aldie , as donatar to the gift of ultimus haeres , of umquhil iohn rouan , pursues a reduction of the retour , and service of william rouan , served heir to the defunct , as his goodsirs brothers oye : and having obtained certification , contra non producta ; there being nothing produced , but the retour , service , brive and executions , but no warrand of the service , either bearing the testimony of witnesses , adduced to prove the propinquity of blood ; or bearing , that the inquest of proper knowledge , knew the same . the pursuer now insists in his reason of reduction , that the service is without warrant , and without probation by writ or witnesses . it was answered , non relevat , as it is lybelled , bearing only that it is without probation by writ or witnesses , whereas it might proceed upon the proper knowledge of the inquest , or any two of them . the pursuer answered , that neither were there any probation by writ or witnesses , nor by the minuts of processe , bearing , that the persons of inquest , of their proper knowledge did serve . the lords considering , that the minuts of these process upon service , for serving general heirs , which may be before any judicature , use not to be exactly keeped , would not instantly reduce for want of the warrants ; but ordained the persons of inquest to be produced , to condescend whether they proceeded upon proper knowledge , and what was the reason of their knowledge . mc. gregor contra menzies . eodem die . there being a question arising betwixt mc. gregor and menzies , upon a decreet arbitral . the lords found the decreet arbitral null , proceeding upon a submission of this tenor , submitting to the arbiters , ay and while they meet , at any day and place they found convenient , with power of prorogation , without any particular day , for giving their sentence blank , or filled up , because the decreet arbitral was not within a year of the date of the submission , nor any prorogation during that time . dam elizabeth dowglass and sir robert sinclar of longformacus contra laird of wedderburn . eodem die . the lady longformacus , as heir to her goodsire , william dowglas of eveling , who was donatar to the escheat and liferent of iohn stewart of coldinghame , pursues the laird of wedderburn , for the teinds of his lands , which teinds pertained to the abbots of coldinghame . the defender alleadged absolvitor , because he has tack to run , flowing from the earl of hoom , who was infeft in the lordship of coldinghame● and before that was commendator thereof by his majesty . ly . iohn stewart had ratified all rights , flowing from the earl of hoom ; and consequently this tack after which , the donatar of his escheat could not challenge the same ; for the ratification is equivalent , as if the tack were granted by the ratifier . the pursuer answered , that the defense upon the tack , and the earl of hooms right ought to be repelled , because the earl of hoomes right , is reduced by the parliament . on this consideration , that the earl of bothwel being commendator of coldinghame , had demitted the same in his majesties hands , whereupon the said iohn stewart his son , was provided by the king , commendator of coldinghame , and thereafter the earl of bothwel being forefault , the said iohn and his other children were dishabilitate , and declared incapable to bruik and joy his land and heritage , or to succeed to any person within this realm , by sentence of parliament ; whereupon the king provided the earl of hoom to be commendator of coldinghame ; and thereafter on the earls own resignation , infeft him therein , in an erected lordship , and thereafter in the parliament . the king and estates , upon express consideration , that iohn stewart was an infant , no wayes accessory to his fathers crimes , did therefore annul his dishabilitation , and rehabilitate him , and declared that he should have right to the abbacy of coldinghame , in the same manner as he had before his dishabilitation ; and resci●ded all rights and infeftments of the said abbacy , granted by his majesty ; to any person of the said abbacy , since the said dishabilitation● in so far as the samine might be prejudicial to iohn stewart's provision , that he had before . after all which , iohn stewart upon his own resignation , was infeft in the property of coldinghame ; so that the earl of hoom's right being reduced in parliament , and falling in consequence with iohn stewarts d●shabilitation ; whereupon it was founded : the defenders tack following thereupon● falls also in consequence , as was already found by the lords , in anno . betwixt the said william dowglas of evelen and the laird of wedderburn , conform to an interlocutor , extracted and produced ; which is sufficient inter easdem partes , and cannot be questioned , super eisdem deductis now ; albeit at that time wedderburn past from his compearance , and so the decreet against him was in absence , yet the interlocutor was ordained to be extracted against him by the lords , which is sufficient : and as for the ratification of the tacks granted by the earl of hoom , the samine was after iohn stewart had resigned his comendatorship , and before he was infeft in property . the defender answered ; first , that the said reduction of the earl of hoom's right , was without calling of the defender : or of the earl of hoom himself● ly . it mentions no particular right , or any person , but in general , all right ; and so is but a privat right , impetrat from the parliament , without hearing of parties ; and therefore falls under the act of parliament , salvo jure . and as to the former interlocutor of the lords . the reason why the lords sustained the said rescissory act , was because they found themselves not competent to judge , as to sentences of parliament , or to annul the same , upon the not calling of the parties , in respect that the act salvo . relates to ratifications ; but not to such sentences as this : but by act salvo , . it is expresly declared , that that act , and all former acts salvo , should not only extend to ratifications ; but to all other privat acts impetrat without hearing of parties , and prejudicial to other parties rights : and therefore now the lords ought to proceed upon the parties right , without consideration of that act rescissory . ly . the act of parliament prohibits and annuls all restitution of forefaulture by way of grace , in so far as may be prejudicial to these , who bona fide , acquired rights from the king , medio tempore : and so the rehabilitation of iohn stewart , cannot prejudge the earl of hoom : or the defender who had right from the earl. it was answered for the pursuer , that there was no difference in the two acts salvo jure ; albeit the last was more express then the first , containing the same in effect . ly . iohn stewart being dishabilitat by the parliament , without citation or crime , might justly be rahabilitate , eodem modo , without citation , and that not by way of grace , but in justice , as not accessory to the crimes● and albeit forefaultures may not be taken away by way of reduction , by the act of parliament , . cap. . yet that cannot be extended to the dishabilitation of their children , so that the parliament doing nothing prejudicial to any parties right , but restoring iohn stewart to his just right , eo ipso , the earl of hooms right fell in consequence , as founded upon iohn stewarts dishabilitation , and with it the defenders tack . the lords repelled the defense upon the tack , in respect of the reply , for albeit the act of parliament , . be much larger then the act salvo , . so that thereby the lords might have cognosced upon john stewarts rehabilitation as without citation , if it had wronged any other persons right , but finding that it was an act of iustice , wronging no persons right , they found the same relevant . town of edinburgh contra sir william thomson . iune . . the ordinar council of edinburgh , having deposed sir william from his office of town clerk , he raised a reduction of the sentence , on four reasons ; first , that the samine was null , because it proceeded without citation , or necessar solemnities of process . ly . because the town could not be judge in their own cause . ly . because by the sett , or the kings decreet arbitral , for the government of the town , no person could be admitted to any office or benefice therein , but by the great council consisting of the ordinar council and their deacons ; and consequently none could be deposed from such offices , but by the same great council , and this sentence was by the ordinar council . ly . that the sentence was exorbitant and unjust , in deposing him for an omission , sine dolo , lata culpa , aut damno . the lords having discussed the fourth reason , and heard the whole dispute at length in praesentia . the defender after interlocutor , but not pronounced on the fourth reason , borrowed the process , and refused to re-deliver it . the town called upon a copy , and represented the manner of abstracting the process . the question was , what should be done , and whither sir william might before litiscontestation , or any interlocutor pronounced , take up his process . the lords admitted protestation on the copy , and ordained an act of sederunt , prohibiting the clerks to give up any process to the pursuer , after it was dispute to the full in all the members thereof , though no interlocutor were past , or pronounced thereupon , lest after so long debate , and hearing , the lords should at the discretion of parties , lifting their process , lose their time , but what had been dispute , should be advised , de recenti . iune . . the lords upon supplication , ordained an appryzing to be allowed , albeit not only the debitor against whom it was deduced , was dead , but the threescore days were long since expired , and ordained the allowance to be registrat , in respect that the late act of parliament , declares that such appryzings as are not registrat within threescore , shall not be preferred to posterior appryzings first registrate , so that the lords thought , that where the allowance was registrate , albeit after the threescore dayes , it would be preferred to any other appryzing registrat thereafter . eodem die . the lords intimat to the writers , keeper of the signet , and clerk of the bills , an act of sederunt , prohibiting general letters , upon presentations or collations of ministers , whether having benefices , or modified stipends , until every incumbent obtain a decreet conform , albeit they should produce their predecessors decreet conform , or a decreet of locality , containing the stipend particularly . swintoun contra notman . iune . . swintoun in his testament , having named his wife tutrix to his children , and notman and others , overseers . his relict within a year , was married , and so her tutory ended ; shortly after notman received from her a number of several tickets , belonging to the defunct , and gave his recept thereof , bearing , that he had received them in his custodie , and keeping● thereafter , he uplifted the sums , contained in some of the tickets , and gave a discharge to the relict and second husband , of some particulars , and consented with the pupil , to a discharge to a debitor , which expresly boor , him to be tutor testamentar , and did intromet with the rents of some tenements , and disposed upon some sheep , whereupon swintoun the pupil pursues him as tutor or pro-tutor , not only for all he intrometted with , but for the annualrent thereof , and for all the rest of the defuncts means , which he ought to have intrometted with , and to have called the tutrix to an account therefore , and condescended upon the insight and plenishing of the defuncts house , the goods in his shop , he being a merchant , the debts in his compt books , and these due by his tickets , not only received by notman , but by others , and for the remander of his sheep , and other moveables , and for the rest of his rents , not uplifted by notman . it was alleadged for notman ; . that that member of the libel was not relevant , whereby he was pursued , not only for that he intrometted with , but what he omitted , because a pro-tutor is not obliged as far as a tutor for the pupils whole means , but this far only , that whatsoever he intromets with , as to that he is obliged as a tutor , to imploy it , and preserve it , and so is lyable for annualrent therefore , and in that he differs from another , negotiorum gestor , who is not lyable for annualrent , but he is not lyable for other particulars of other kinds , that he medled not with , as albeit he had medled with the tickets , yet that would not oblige him to medle with the compt books , plenishing , or cattel ; there being no law to oblige him , neither was there any possibility , that he could meddle therewith , being neither obliged , nor able so to do , having no active title in his person ; for overseer , non est momen juris , and by our custom , i● doth oblige to nothing , but is as the fidei commissa , were in the ancient roman law in the arbitriment of him , to whom they were committed without any obligation or legal compulsion , ex mera pietate , so that his being overseer●● could oblige him in nothing , and his meddling thereafter to preserve the means of the pupil , when his tutrix and mother had superinduced a second husband , ought not to be hurtful to him ; otherwayes no overseer will ever meddle in any case , with any thing of the pupils , whereby their means may be destroyed . ly . he cannot be lyable as tutor notwithstanding of the discharge , subscribed by him , hoc nomine ; because albeit that would prove him tutor , where the case did not otherwayes appear , seing the contrair is manifest ; that whereas the discharge bears him tutor testamentar . the testament produced , bears him only to be overseer , & fa●sa designatio non obest . . the ticket or receipt of the bonds cannot obliege him for all these bonds , but such thereof , whereof he uplifted the money , and only from that time that he uplifted the same ; especially seeing the ticket bears , that he received them in his custodie , which any friend might do , especially an overseer ; and does not import his purpose of intromission . the pursuer answered to the first , that his lybel was most relevant , not only for intromission , but omission ; because a pro-tutor in law is oblieged in all points as a tutor , not only pro commissis sed p●o omissis : and albeit he had no active title , whereby to intromet , that cannot free him from being lyable passive more then a vitious intromettor , or one behaving as heir ; but he ought either to have forborn , or procured to himself a tutory dative , and unless pro-tutors be universally lyable , pupils will be destroyed , because any body will meddle with their means , knowing they are lyable but for what they meddle with , and the a●nualrent thereof , which perhaps will not be made out against them ; but if they be universally lyable , they will either wholly abstain , or orderly intromet , by procuring a title : and albeit overseers be not lyable in the first place , yet they are tutores honorari , lyble after the other tutors are discussed . as to the third , the receipt of the bonds , albeit it bear in custody , yet it is proven by the writs produced , quod se immiscuit , by uplifting the sums contained in some of the bonds , and therefore is lyable for the whole . the lords having heard and considered this case at length , found , that seing there was no law nor custom of ours to make a pro-tutor lyable in all points as a tutor , and that the civil law oblieges not us , but only we ought to consider the equity and expediency thereof , and therefore they found , that they could not condemn the defender for omissions , seing there is no antecedent , law , nor custom : and therefore found , that as overseer , he was oblieged to nothing , and that as intrometter , he was lyable for what he intrometted with , and the annualrent thereof , after his intromission , and found him lyable for the hail bonds in his tickets , seing he meddled with a part of the money thereof , and found , that if he had meddled with a part of the sheep , that would make him lyable for the whole sheep of that flock , and the annualrent thereof , and found that his being designed tutor , contrair to the testament , did not instruct : but the lords declared , that in cases occurring in all time coming● they would find pro-tutors lyable in all points as tutors , and ordained an act of sederunt to be made thereupon and published in the house , to all the whole advocats , that none pretend ignorance . sir alexander hoom contra iune . . 〈…〉 pursues for mails and duties of certain lands . it was alleadged for the tennents , no process , because they offered them to prove , that they were tennents by payment of mail and duty to sir alexander hoom their minister , before intenting of this cause , and he was not called . ly . absolvitor , because they were tennents to the said sir alexander , who had a right of an appryzing , and diligence thereupon , anteriour to the pursuers right . the pursuer answered to the first , non relevat , in an action of mails and duties ; albeit it would be relevant in a removing . in which two actions , the lords have still keeped that difference , that in removings the heretor should be called , because thereby his possession was to be interverted : but in mails and duties , the tennents might suspend on double poinding , and thereupon call both parties : or if a tennent did collude , the master , might use the tennents name , but double poinding could not have place in removings . to the second , it is not competent to the tennents to dispute their masters right , which is to them jus tertij ; but they should have intimate to their master , to compear and defend his own right , who if he will , compear and produce his interest , may be heard . the lords repelled both defenses , unless sir alexander compear and produce his interest . a letter from the king . iune . . the lord ballantine the saurer depute compeared , and produced a letter from his majesty to the lords , bearing , that his majesty having heard a doubt moved before him , whether declarators of ward , non-entries , &c. should be discussed before the lords of session , or lords of exchequer ; his majesty declared his pleasure , that in the mean time , till h●s majesty got further evidence , and clearing therein , such actions should be pursued before the lords of session . which letter was ordained to be recorded in the books of sederunt . aikman contra iune . . aikman having charged upon a bond of borrowed money . suspended , and alleadged that the charge was truely for a prentis● fee , for a royto a writter , who was oblieged to educat him three years , and it is offered to be proven by witnesses , that he beat the prentise , and put him away with evil usage , within a year and an half , and so can have no more at most , then effeirand to that time . the charger answered , that he could not devide the probation , in one single defense , both by oath and witnesses , and that he could not take away writting by witnesses , in whole or in part . the lords sustained the probation by oath and witnesses , as proponed . cruikshank contra cruikshank . iune . . george cruikshank pursues the rel●ct and executrix of cruicksshank his uncle , for payment of a bond of . pound . the defender alleadged absolvitor , because the defunct had granted an assignation of certain sums of money to david cruikshanks , the pursuers brother , wherein there was a provision in favours of the pursuer , that the said david should pay to him a●thousand pound , which must be understood to be in satisfaction of this debt , in the first place , nam nemo presumitur donare quamdiu deb●t . the pursuer answered , that the foresaid rule hath many exceptions , for it being but a presumption , a stronger presumption in the contrair will elide it as in this case . the defunct had no children , and had a considerable fortone , and the pursuer and the said david his brother , were the defuncts nearest of kin : and albeit the foresaid disposition be not in the express terms of a legacy , yet it is donatio mortis causa ; for it contains an express power to the defunct , to dispone otherwise , during his life , and in another provision therein , it bears expresly , to be in satisfaction of debt , due to that other party , and says not so as to the pursuer ; all which are stronger extensive presumptions , that the defunct meaned to gift no less then the whole thousand pounds . which the lords found relevant . william wright contra george shiel . eodem die . william wright as assigney by iohn shiel in carlowrie , obtained decreet against george shiel in nortoun as heir to iohn shiel his brother● for payment of two bonds . george shiel suspends on this reason , that the assignation was gratuitous , without onerous cause , which he offered to prove by the assigneys oath , and offered to prove by the cedents oath that the debt was satisfied . the lords having at length considered , and debated this case among themselves , whether the cedents oath could prove against an assigney , when the assignation was gratuitous , some were of opinion , that it could not , because nothing can prove but writ or two witnesses , or oath of party , and the cedent is not the party , but the assigney : and albeit the cedent could be a witness , he is but one ; and because it is a rule with us , that the cedent cannot depone in prejudice of the assigney , unless the charge be to the cedents behove : and we have no exception , whether it be gratuitous or onerous ; but the most part were of opinion , that in gratuitous assignations , the cedents oath should prove ; because an assigney is but procurator , in rem suam , and doth not proceed upon his own right , but , utitur jure authoris : and therefore , albeit for commerce , our custom hath not allowed the oath of the cedent , in prejudice of the assigney ; yet the case in a gratuitous assignation , hath neither been debated nor decided ; and therefore in it , the cedents should be sufficient , seing it cannot be presumed , that he who voluntarly gifted , will swear to his assigneys prejudice ; and that truely the cedent is party , and the assigney pursues but as procurator , in rem suam . and seing we have no law regulating this case , equity and expedience ought to rule it : but in equity no man can put his debitor in a worse condition , without his consent , either as to the matter , or as to the manner of probation ; and in expedience , the excluding of the cedents oath in this case , opens a way for fraud , that after debts are payed , they may be assigned , even freely , and the debitor is excluded from his probation of the payment . the lords before answer , ordained the assigneys oath to be taken , whether assignation was for a cause onerous or not . bruces contra earl of mortoun● eodem die . bruces pursues the earl of mortoun for payment of a bond , who alleadged that the bond was assigned by the defunct , and the assignation intimat , and a decreet obtained against him thereupon . the pursuers answered , that this was jus tertij to the defender , who could not dispute the assigneys right . the defender answered , that it was exclusio juris agentis . the lords repelled the defense , as being super jure tertij , and decerned , but ordained suspension to pass , without caution or consignation , that the assigney may be called , and dispute his right . gideon murray contra iune . . gideon murray having obtained decreet against for certain merchant ware , wherein he was holden as confest , and thereafter reponed , and the decreet turned in a libel . the receipt of the goods was found probable , pro ut de jure , and was accordingly proven , and the cause being concluded , and the depositions advised . it was alleadged for the defender , first , that he produced and instantly verified , that the pursuer had granted him a bond , after the furnishing of the account of a greater sum , which must be presumed to have included satisfaction of the accompt , ly . the decreet was more then three year after the furnishing , and so was not probable by witnesses ; but that manner of probation was prescribed by the act of parliament . the pursuer answered to the first , that both those exceptions were competent and omitted , and now after probation taken ; there was no reason to sustain that alleadgence , for after litiscontestation , no new exceptions can be admitted , unless they be instantly verified and emergent , or at least new come to knowledge , as this is not , for it was obvious , being founded upon so known a law , as to the prescription : and as to the other , it is but a weak presumption , no way relevant , unless the posterior bond had exprest to have been after compt and reckoning . the defender answered , that the lords might ex nobile officio , repone parties to defenses , instantly verified , after litiscontestation● and albeit they ordinarly repone them when the exceptions are emergent , or new come to knowledge : yet in other cases , ex officio , they may , as when there is so pregnant a presumption concurring . ly albeit prescription hinder pursuits active : yet seing the defender was creditor by bond , in a greater sum. the pursuer needed not pursue for the accompt , quia intus habuit , and the other party might have compensed upon the bond ; and therefore , as in the civil law , in debitis naturalibus & non civilibus licet non dat actionem dat tamen exceptionem : so here the pursuer may except upon account after three years . the lords found the presumption not relevant , and found that the manner of probation being prescribed , it could not be made use of , either by action or exception , albeit there was a compensation competent , yet it befell not , ipso jure , seing it was not liquid , but liquidable by the other parties oath . but as to reponing in this state of the process , though many of the lords were in the contrary , yet seing the exception was but a prescription , which is but by positive law , and odious , so that the pursuer might as well have craved to be reponed against the prescription , as the defender against his omission of a palpable defense , yet in respect of the prescription , and that the party was poor , the lords reponed . christian braidie contra laird of fairny . iune . . christian braidy relict of iames sword , having inhibite george glassfuird upon his bond , pursues a reduction of a disposition , granted by george to the laird of fairny , of certain lands , as being done after her inhibition . fairny having produced the disposition , it bear to be holograph , whereupon it was alleadged , that it was null by the act of parliament , requiring all writs of importance to be subscribed before witnesses ; and this disposition wanted witnesses . the defender offered to prove it was holograph . the pursuer replyed , that the question being de data , not that it was subscribed , but when it was subscribed , whether prior or posterior to the inhibition , witnesses could not be received , where the question was not against the granter of the writ , or his heir , but against a third party . the lords before answer , did appoint witnesses to be examined , omni exceptione majores , who being now examined , both deponed that they saw the disposition subscribed , and that it was long before the inhibition . it was then alleadged , that this being done , but before answer , it was intire to discuss the relevancy of the alleadgence , whether a date might be instructed by witnesses . ly . albeit witnesses omni exceptione majores were receivable , for such an effect , that these witnesses were not such , the one being but a town officer , and the other procuratorfiscal of a sheriff court , especially seing there were strong presumptions of fraud , as that nothing followed upon this disposition , that it remained clandestine for several years , that thereby the disponer becoming bankrupt , had excluded some of his creditors , and preferred others , and that there was no penuria testium , seing both thir witnesses assert they saw it subscribed , and the one deponed , that he dited it so , that their names might easily have been insert ; and therefore it must be thought , it was done for some fraudulent intent , as to be of an anterior date to the inhibition : and therefore in such a case , the witnesses should be persons of fame , and known reputation . it was answered , that the witnesses adduced , were sufficient , seing they were above exception . frst , because they were publickly called to the bar , and received without any objection , so that now none is competent . ly . that there is no relevant exception yet alleadged , for the being a town officer , is no legal exception , neither to be of a mean condition , nor to be of a small estate , if he were worth the kings unlaw and for the presumptions , they were but meer conjectures ; for it was free for a man to make his disposition all with his own hand , or before witnesses , and what his motives has been to do it , cannot be known , and so ought not to be presumed fraudulent , nam nullum vitium presumitur . the lords having fully considered this case , and having debated , whether witnesses at all were receivable to astruct the date of a holograph writ ; and also , whether these witnesses adduced were sufficient : they found that in respect of the presumptions of fraud , adduced these two witnesses , were not sufficient to astruct without further adminic●es , either by witnesses of unquestionable credit , or by writ . procuratorfiscal of the commissariot of edinburgh contra thomas fairholm . iune . . thomas fairholm being charged to give up an inventar of the goods and gear pertaining to umquhil alexander deninstoun , whose daughter he had married . he suspends on this reason , that the defunct had granted a disposition to one of his daughters , of his hail moveable goods , and sums of money , so that he had nothing the time of his death , and there needed no confirmation , but he might lawfully possess , by vertue of his disposition ; and there was no law to force persons in such a case to confirm , neither had it ever been sustained by the lords . it was answered , that it was juris publici , to have the goods of defuncts confirmed , that nearest of kin , children , creditors , and legatars , might know the condition thereof ; and this defuncts moveables , albeit disponed , yet not delivered , remained in bonis defuncti , and so behoved to be confirmed . the lords having read the disposition , and finding it to be general , omnium bonorum , that he had , or should have , the time of his death , and there being nothing alleadged of any onerous cause , or that it was before his sickness , albeit the case was new , yet they found there was necessity of confirmation in this case : but if it had been a disposition only of special things , as bonds or goods , or had been for any onerous cause , or had been made in leidg pousti , and any symbolical delivery , the lords were not so clear in it , but resolved to hear such cases in their own presence , when they should occur . collonel james montgomery contra wallace and bouie . iune . . the collonel as heretor of the miln of tarboltoun , having pursued bouie for abstracted multures of drumlie . it was alleadged for bouie and wallace of garricks , who had disponed to him , with warrandice absolvitor ; because wallace and his authors were infeft in the milns and multures , before the pursuers infeftment of the miln . the pursuer replyed , that the thirlage was constitute by a decreet in anno. . against the tennents of drumlie therein mentioned . the defender answered ; first , that the heretor was not called . ly . that it did not appear , that these tennents did dwell in drumlie wallace , there being two drumlies lying contigue , one called the dinks drumlie , the other called drumlie wallace . ly . that for any possession , they offered them to prove that it was interrupted from time to time , by going to other milns . the lords having ordained witnesses to be examined , hinc inde , whether the tennents in the old decreet , did possess drumlie wallace , or the dinks drumlie . ly . what possession the pursuer and his authors had . ly . what interruptions the defender and their authors had , many witnesses being examined , hinc inde . it was clear , that since the year . when capringtoun , the pursuers author died , there was no possession , and there was not above twenty eight years possession , proven before , because there was no witness of that age , that could have been of discretion fourty years before the year . but they found it proven , that the persons mentionate in the old decreet , or some of them were possessors of drumlie wallace , and also there was a tack produced , set by the pursuers author to one of the tennents of drumlie , wherein it was provided , that the tennent should relieve him of the multures , and did not express what miln . the lords found the old decreet , although the master was not called thereto , was not sufficient alone , yet with a long possession thereafter , they found the same was sufficient to constitute the astriction , and found the interruptions by going to other milns , were not so frequent and long , but that they might have been private and clandestine , and the probation during memory , before this contraversie was found to instruct anterior possession , to compleat prescription . irwing contra strachan . eodem die . alexander strachan as assigney by patrick gordon , charges iohn irving to make payment of a bond of . merks , which being suspended on this reason , that the cedent was debitor to the suspender in a greater sum , being oblieged for the grouth of certain lands , of the cropt . and certain bolls of meal , as the duty thereof . the charger answered , that this was not liquidat against him , nor against his cedent , before his assignation . the suspender answered , that it was liquidate before in so far as there was a decreet of liquidation obtained against the principal party for whom the cedent was cautioner in the contract , which must be sufficient against the cautioner , albeit he was not called , because his obligation was but accessory , unless he could instruct collusion ; and this decreet of liquidation , proceeds upon probation of witnesses . the lords sustained the compensation , and found the liquidation sufficient , being against the cautioner , though he was not called , and against this assigney , seing the decreet was before the assignation . alexander ferguson contra steuart of askeoge . iune . . alexander ferguson having obtained a presentation from the king , as one of the prebenders of the chapel-royal , and thereupon a decreet conform ; and having charged steuart of askeoge , he gives in his special charge , that the paroch of inchgarth , which is now annexed to rothesay , belonged to his pr●bendrie , as being a part of the patrimony of the chapel-royal . it was answered for askeoge , that he bruiks the teinds by vertue of a tack granted by mr. ninian steuart minister of rothesay , whereof this kirk , now annext is a part , and that there is nothing appears to instruct that these teinds were ever mortified to the chapel-royal , or that the chapel-royal was in possession thereof . the pursuer answered , that seing he had the kings gift , and decreet conform , it was sufficient , unless the defender would alleadge , that the said mr. ninian steuart had a better right , or was in possession ; for the king being the common author , and fountain of rights , his majesties gift is sufficient against any that show not a better right : and as for the tack produced , it is null , being for nineteen years , without consent of the patron . the defender answered , that albeit both parties were in acquirenda possessione ; yet decimae debentur parocho ejusque praesumuntur nisi aliter appareat : and therefore unless these teinds have been transmitted from the parson of the paroch , by long possession , or mortification , they are his , and the kings gift alone , cannot take them from his ; but here the parson has been in possession , by setting the tack produced , which is sufficient , as to possession , albeit it were null by exception , as it is not ; and the nullity thereof is only competent to the person of the granter , and not to this pursuer . the lords found the kings gift and decreet conform , with institution and collation , was not sufficient , unless either the mortification of these teinds , or the prebenders possession were instructed . mr. walter caut contra iames loch . eodem die . mr : walter caut having pursued iames loch and his mother as tutrix , for her interest , for the mails and duties of some appryzed lands , and the quantities being referred to the tutrix oath , she refused to depone , alleadging that she had forgotten the quantities , whereupon the pursuer craved her to be holden as confest , upon the rental given in by him , as if she had acknowledged the same . the lords found she could not be holden as confest , being not the party , but tutrix , but they found that she might be forced to depone , by horning and caption , as other witnesses . alexander monteith contra anderson . iune . . there being mutual reductions betwixt monteith and anderson , the former having right to an appryzing , led in anno . and the other mr. iohn anderson having adjudged in anno . mr. iohn anderson insisted on this reason , that monteiths apprizing proceeded was on a sum of . merks , due by iames nisbet , the common debitor to gilbert gourlay , after that iames was rebel , at mr. iohn andersons authors instance : after which , no bond granted , could prejudge the other creditor , having used diligence before , but the bond is null by the act of parliament . against bankrupts . it was answered for monteith , that that act was only against fraudulent dispositions , between confident persons , without cause onerous● but here a bond of borrowed money , was onerous , and no man was thereby hindered to borrow money . anderson answered , that the narrative of the rebells bond , bearing borrowed money , could not instruct against a creditor using prior diligence . this the lords repelled . anderson insisted upon this reason , that gourleys bond was granted by iames nisbet , iames and william arnolds , all conjunct principals , without a clause of relief ; and this bond was assigned by gourley , with this express provision , that no execution should proceed thereupon , or upon the bond , or inhibition against the arnolds : and so if the assigney had been pursuing iames nisbit for all , he might have answered , that the assigney had accepted his assignation , with this provision , that iames nisbet could not use execution against the other two co-principals ; and therefore he being excluded from his relief , could be only lyable for his third part , for he would not have subscribed the bond , but upon consideration of his relief . monteith answered , that all the three principals being bound conjunctly and severally , the creditor might renounce all execution against two of them , and yet crave the whole from the third , and there was no more done in this case : and albeit there be no clause of mutual relief exprest , yet hoc in est de natura rei : so that albeit nisbet , by vertue of the assignation , thought it had been transferred to him could not have pursued the two arnots , yet by the obliegement of mutual relief , implyed he might , not as assigney , but as coreus debendi . anderson answered , that if the clause had born only a provision , that no execution should pass upon the assignation , it might have been consistant ; but it bears , that no execution should pass upon the assignation , or bond. the lords found , that the obliegement of mutual relief , was implyed , where parties were bound conjunctly and severally , albeit not exprest , and that the provision related only to the bond , quantum ad creditorum , and did not restrict the implyed obliegement of the co-principal , and therefore repelled this reason also . robert keill contra iohn seaton . iune . . george seaton as principal , and the said iohn seaton his cautioner having granted bond to robert keill , and being charged thereupon , both did suspend , and having alleadged payment , they succumbed , and were decerned ; iohn suspends again , and raises reduction upon minority and lesion . the charger answered , first , that this reason was competent and omitted in the former decreet . ly . that proponing payment , did homologat the debt , as if an heir proponed payment , he would not be admitted fo renounce thereafter , or to deny the passive title . the suspender answered , that the former process being in a suspension , nothing was competent but what was instantly verified . and so minority and laesion was not competent . the charger answered , that the decreet of registration was turned in a libel , as being registrat at the assigneys instance , not having intimat during the cedents life , and at that time the suspender had raised his reduction , and so it was competent . the suspender answered , that he was not oblieged to insist in his reduction , and that the reasons thereof were not proper , even in an ordinary action , but only by a reduction . it was furder alleadged , that competent and omitted , took no place in suspensions . the lords had no regard to the last alleadgence , but repelled the alleadgence upon homologation , and upon competent and omitted , in respect that minority and laesion is neither competent by way of suspension or exception , but by way of action of reduction , wherein the suspender was not oblieged to insist . iames pitcairn contra isobel edgar . iune . . umquhil david edgar by his contract of marriage , provided . merks to be payed by him and his heir of the first marriage , which failling , any other his heirs , to the bairns of the second marriage . the portion of the daughters payable at their age of . and the sons at . with five merks yearly of annualrent , after his death , for the childrens subsistence . isobel one of the children , having married after her fathers death , iames pitcairn her husbands creditor , pursues for the sum , as belonging to the husband , jure mariti . it was answered , that the sum was heretable , bearing annualrent , and the term of payment of the annualrent was come before the marriage , and therefore it did not belong to the husband , jure mariti . it was answered , that it was not properly an annualrent , but an aliment of five percent , and that the term of payment of the annualrent , was after the act of parliament . declaring such bonds moveable : and albeit the fisk and relict be there excluded ; yet the jus mariti is not , but is only added by the act . the lords found , that seing this provision bear annualrent , whether more or less , and that the marriage was after the term of payment , that it was heretable , and fell not to the husband , jure mariti , but only the annualrents thereof , till his death , albeit there was no contract of marriage , nor a tocher , and that the husband had after the marriage given some provision to the wife . mr. george norvel contra margaret hunter . iune . . mr. george norvel having apprized certain lands , pursued for mails and duties against margaret hunter possessor , she compeared , and proponed a defense , that she stood infeft in the lands , by a right from her husband before the appryzing , but for proving thereof , she only produced her seasine . which the lords found not to prove without a warrant , and therefore decerned . she suspends , and now produces her contract of marriage , as the warrant of the seasine , and offers to make faith , that she had found it out since the decreet : and farder alleadged , that through neglect of the advocats , or clerks , her defense was not proponed , no ways acknowledging the quantities libelled , which she offers to prove to be exorbitant . it was answered , first , that praetextu instrumentorum de novo repertorum sententiae non sunt retractandae . ly . the contract produced is not the warrant of the seasine , but a bond granted for implement of the contract , and relating to the seasine . the lords reponed the suspender , as to the circumduction of the term , she making faith , &c. and found the contract of marriage a sufficient adminicle , to astruct the seasine , seing it related to a bond for the same cause , but refused to repone her as to the quantities . heretors of the miln of keithick contra feuers . eodem die . the heritors of the miln of keithick , pursues certain feuers for abstract multures , who alleadged absolvitor , because they are infeft , ab eodem authore , without astriction before the pursuer . it was replyed the pursuer is infeft in this miln , which is the miln of the barony , and per expressum in the multures of the lands in question ; and offers to prove , that there is a distinct in-sucken multure , and out-sucken multure , and that the pursuer has been in possession of the in-sucken multure , these . years bygone , out of thir lands . duplyed the defender offers him to prove , that the possession has been interrupted by his going to other milns frequently , and without any challenge , or sentence against them : and seing the coming to a miln is but voluntatis , unless they enacted themselves so to do . and that the pursuers infeftment , though expresse , was latent and unknown to the defender , all that is alleadged cannot infer an astriction . the lords repelled the duply , and thought that going to other milns sometimes , as is ordinar in all thirlage , was no sufficient interruption , if they came ordinarly to this miln , and payed in-sucken multure , and therefore found the reply relevant . richard thorntoun contra william miln . eodem die . thorntoun as assigney by patrick seaton , having obtained decreet before the baillies of edinburgh , against william miln , he suspends and alleadges compensation , upon a compt due by the cedent , and a ticket subjoyned by him , acknowledging the compt to be due , subscribed before witnesses , which must prove against this assigney . it was answered , that the ticket wanted a date , and so could not instruct it self to be anterior to the assignation . it was replyed , that it was offered to be proven by the witnesses insert , that it was truly subscribed before the assignation . which the lords sustained . stevenson contra crawfoord . iune . . stevinson being surrogat executor dative , ad omissa , and having licence to pursue , insists against crawford for a debt of the defuncts , alleadged omitted forth of the principal testament . the defense was , no process , until the executor dative , ad omissa , be confirmed ; but he cannot insist upon a licence to pursue , because the principal executor having made faith , that the inventar given up by him , is a full inventar , any that crave to be dative , ad omissa , are never admitted , but upon certain knowledge , and so must confirm , and gets no licence . the lords repelled the defense , especially seing the pursuer was a creditor . younger contra iohnstoun . eodem die . an porteous merchant in edinburgh , having died infeft in several tenements in edinburgh , above . years agoe , his relict possessing them as liferenter to this time . shortly after his death , one patrick porteous was served nearest and lawful heir to him , and thereupon infeft , so that his right came by progress to iohnstoun , . years after ; younger takes a right from one stephen porteous , residenter in polland , and gets him served nearest heir to the defunct , and thereupon raises reduction of the first retour , and all the infeftments following thereupon , defense absolvitor , because the defenders author being served heir . years before the pursuers authors service . it is prescribed , and likeways being infeft . years since , all quarrel against , the infeftment is prescribed : for the first point , they condescend upon the second act of parliament , anent prescription , of the reduction of retours , which bears , that if they be not pursued within . year , they shall never be quarrellable thereafter . the lords having considered this case at length , most part thought that the retour could not prescrive by the first act of parliament , because it excepted minors , and absents out of the countrey , which they found not to be meaned of absents , reipublicae causa , but of any absence , nor that it fell not directly within the second act , which bears expresly , retours to have been reduced thereafter , should be only reduceable within twenty year . others thought the act might not be extended ; but bearing expresly , to the future , it could not be drawn back , and the act of prescription , . meets not this case ; for if under the prescription of actions , not pursued within fourty year , serving of persons to their predecessors heirs ; were comprehended , it would impede any person to serve themselves heir to any defunct , after fourty year , which is yet ordinar , and as to the infefment , they fand , that it fell not in the case of the act of parliament . because it was not cled with possession , in respect of the liferenters life , whose possession behoved to be the possession of the true heir of her husband . but the lords did not decide it , seing the case was rarely occuring , and johnstouns infeftment very old , unquarrelled ; and recomended the parties to agree . mr. james nasmith contra alexander bower . iuly . . this being a concluded cause , a question arose , upon the probation ; an accompt being produced between two merchants , referred to bowers oath , that it was his hand writ , and yet resting : he deponed it was his hand writ , but not resting . the question arose , whether he behoved to condescend , and instruct how it was payed ; because , though the accompt written with his hand unsubscribed , was of it self sufficient probation , the quality was not competent ; but he behoved to prove payment , it being alleadged that merchants hand writ is sufficient : and that a note upon the back of a bond , or foot of a compt , by the debitors own hand writ , though not subscribed , has been found probative . the lords found , that if this had been a current compt-book , it would have been probative , but having been only some feu scheduls of paper , found it not probative , without subscription , albeit it was acknowledged by the oath , to be the deponents hand writ . john boyd late baillie in edinburgh , contra mr. william kintore . iuly . . there being mutual reductions , betwixt mr. william kintore and iohn boyd as to the rights of the lands of moutlothian . iohn loyd deriving right from mr. robert logan , to whom logan of coatfield , with consent of mr. iames raith , and who , for all right he had to the land of mounlothian , disponed the same . and mr. william kintore having appryzed upon a decreet against coatfield , as cautioner for a tutor ; and upon the act of caution inhibited . it was alleadged for iohn boyd , that whereas , by a former interlocutor the day of he having objected against kintor's decreet , that thereby the tutor , and his cautioner were found lyable to uplift the annualrent , of sums that were in the hands of secure creditors , which the tutors had not uplifted , and to be lyable for annualrent post finitam tutelam : now he produces a decision , out of dury , iuly . . nasmith contra nasmith , whereby it was found , that a tutor having uplifted his pupils annualrent , though very considerable , was not lyable for any annualrent therefore . ly . the reason of the lords decision then being , that albeit the tutor was not lyable to uplift , and imploy the annualrent every year , as it was due ; yet he was lyable , once in the tutory : but it is offered to be proven , that he died two years before the tutory expired : in which time , he might both have upl●fted this annualrent , and re-imployed it : and therefore being prevented by death , he ought to be free , both of the annualrent it self , and of the annualrent thereof . the lords having considered the decision , found it so short , and not to hold forth fully the case , notwithstanding thereof , they adhered to the former interlocutor , and found , that tutors are oblidged to uplift , and once in their tutory , to re-imploy the annualrents of the pupil ; albeit the debitor were secure , but if the case had been of rents of lands , the lords thought these ought to have been uplifted yearly , and to be imployed on annualrent ; but they found the second alleadgance relevant , not to free the tutor of payment of the annualrent it self , though in secure hands , because he ought to have uplifted it , and had it ready , but found him free of the annualrent thereof , there being a competent time , in which he might have given it forth , before the pupillarity past , if he had not been prevented by death ; but ordained kintore to assigne to boyd the right of the annualrent , that he might recover the same from the debitors . it was further alleadged for kintore , that coatfield the common author , his disposition to mr. robert logan , iohn boyds author , was after kintors authors inhibition . it was answered , that albeit the disposition by coatfield to mr. robert logan be posterior , yet mr. iames raith had a disposition of the same lands anterior ; who , by consenting , and joynt disponing to mr. robert logan , the lands of mountlothian ; did in effect constitute him assigney to his anterior disposition , which is now accomplished by the adjudication , adjudging the right of the lands from coatfild● heirs , and thereupon infeftment has followed , by precepts out of the chancellary , for supplying coatfilds procuratory of resignation , which took no effect in his life . it was answered , that mr. iames raiths right being but a wodset , his consent cannot import the transmitting of his right , albeit he joyntly dispond : seing he transmits no part of the sums in the wodset ; and therefore does no more in effect , but restrict his wodset to the remanent lands : and consents , that coatfield should dispone these lands to mr. robert logan , and so it imports but non repugnantiam , and a provision that he nor his successor should not quarrel their right upon his anterior right . which the lords sustained . mr. walter innes contra george wilson . iuly . . innes of auchbuncart , being pursued as heir to his father , upon all the passive titles alleadged that his father was denounced rebel , and his escheat gifted , and the defender had right , or warrand from the donatar before intenting of this cause . the pursuer answered , non relevat , except the gift had been declared , and that the defenders intromission had been after declarator , and the warrand , but the intromission being anterior , cannot be purged , ex post facto . the defender answered , that as the confirmation of an executor , excluds vitious intromission , had before the confirmation ante motam litem : so the gift and vvarrand , though without declarator , purges anterior intromission , ante motam litem . which the lords found relevant . commissar of s. andrews contra boussi . iuly . . the commissar of st. andrews having charged hay of boussi to confirm his fathers testament , he suspends , and alleadges his father had disponed all his moveable goods and gear to him , and so nihil habuit in bonis , and offered him to prove that he was in possession of the whole goods before his death . it was answered , the disposition was but simulat , in so far as it contained a power to the disponer , to dispose upon any part of his moveables , during all the days of his life , and if such a disposition were sustained , there should never be another testament confirmed ; and all people would follow this course : which would not only exclude the quot , but keep the means of defuncts in obs●uro . the lords , in respect of the generality of the disposition , and the clause foresaid , repelled the reason . george dumbar contra earl of dundie . july . . george dumbar having charged the earl of dundie as cautioner for the laird of craig to pay merks of tochar , provided by craigs sisters contract of marriage , the earl of dundie suspends on this reason , that he is but lyable for his half , because they were not bound conjunctly and severally . the charger answered , that he was bound as cautioner , and full debitor , which was sufficient . which the lords sustained mackie contra stewart . iuly . . james mackie , as assigney by agnes schaw , conveens stewart of mains as as representing his father , who was cautioner for imploying a sum of money to her in liferent . it was answered , first , the contract is prescribed . ly . it bears these words that the tochar being payed : the principal and cautioner obligded them to imploy it upon security ; so that the obligation is conditional . and if it be not instructed , that the tochar was payed , the defender is not lyable . the pursuer answered to the first , contra non valentem agere , non currit prescriptio ; she being a vvife cled with a husband her not pursuing her own husband , or his cautioner , cannot prescrive her right , to the second , the prescription is run against the husband , and his cautioner , who were free to have pursued for the tochar , and did not ; and after . years she cannot be put to instruct , that the tochar was payed , albeit she had been debitor therefore her self ; much more , when another is debitor . the lords found both these replyes relevant . mr. john colvil contra the lord balmirino . iuly . . mr. iohn colvil , as executor confirmed to umquhil mr. iohn colvil , minister at kirknewtoun , pursues the lord balmirino , for the stipend , the year . and for the profit of the gleib . the defender alleadged absolvitor ; because payment is made bona fide to the intrant , before intenting of this cause . it was answered , it could not be payed bona fide , because the minister died after ianuary . vvhich being so notour to my lord balmirino , to whom the most of the paroch belongs ; and he being so near it , he ought to have made payment to no other of that year , which belonged to the defunct minister , as his ann , extending to the whole years , quia annus inchoatus habe●ur pro completo ; as to the ann : so that if the minister lived till the first of ianuary , he has that whole year . the defender answered , that an ann is only due to the vvife , and bairns of the defunct minister , and this minister had none . ly . that the point is so dubious in law , he knew not that it would be his , unless , he had lived till whitsunday . ly . the benefit of the gleib must be the intrants , and falls not under the ann , as a part of the stipend , no more then the manss . the lords repelled the defense , as to the stipend , and found it belonged to the executor , as nearest of kin , and that the defunct surviving the first of january , gave him that whole year , but found that the gleib did not fall under the ann nor did belong to the defunct , but only the crop thereof ; if it were sowen by himself , before he dyed . earl of argyl contra mcdougalls of dumolich and ziner . iuly . . the earl of argyl having raised a double poynding , in name of the tennents of certain lands , calling himself , on the one part , and mcdougals on the other , as both claming right to the mails and duties ; mcdougals produce a decreet of parliament , whereby they having pursued the late marquess of argyl ; alleadging , that he had obtained the right and possession of these by force , and oppression during the troubles , whereupon his rights were reduced , and they restored to their possession . the earl of argyl produced his seasine , upon the kings gift , with two dispositions of these lands , granted to his father , one in anno . and another in anno . and thereupon craved to be preferred . mcdougals produced a disclamation of the process , in name of the tennents , and alleadged no process ; because the tennents , who were pursuers , past from the pursute . it was answered , that their names was but used , that the parties might discusse their rights , and so they could not disclame it , being ordinar to use tennents names in double poyndings . it was answered , that there was no reason , that tennants should be forced to make use of their names , to intervert their masters possession . the lords found , that the tennants could not disclame ; especially the possession being but late , by decreet of parliament , and was contraverse . it was further alleadged for mcdougals , that there was nothing particularly lybelled , as rents due by the tennants ; and therefore there could be no sentence . the lords repelled the alleadgeance , and found the sentence might be in general , to be answered , of the mails and duties , as is ordinar in decreets conform . it was further alleadged for mcdougals , that seing this double poynding was in effect , now used as a declarator of right , no process thereupon ; because in all declarators , law allows the defenders days upon the first summons , and six on the next , that they may prepare , and produce their rights ; and here there is but one summons on days . ly . no process , because mcdougals being founded upon a decreet of parliament ; my lord argyl produces no title , but only a seasine not expressing these lands . ly . decreets , especially of parliament , cannot be taken away , but by reduction , and not thus summarly . it was answered , that my lord argyl insisted here for taking away the pretended decreet , in parliament , and restoring the king , and donatar to the possession of the lands : so that in effect it is not so much a declarator of a right , as a possessory judgement . and as for the title , it is sufficient to produce a siasine , seing in the decreet of parliament , my lord argyls right and possession is quarrelled as wrong , and therefore was acknowledged to have been , and seing mcdougals produces no other right , and the king's advocat concurres ; and if need beis , my lord argyl offers to prove the lands in question , are parts and pertinents of the lordship of lorn , exprest in his seasine : and albeit this be pretended to be a decreet of parliament , yet by sentence of parliament since , it is remitted to the lords , and is in it self visibly null , as having been intented against my lord argyl , and pronounced after his death , and forefaulture without calling the kings officers . the lords repelled these defenses , in respect of the replyes . james mathison contra harie gib . eodem die . james mathison , having obtained a decreet before the commissars of edinburgh , against gib , he suspends , and alleadges it was not a cause consistorial , being a bargain of victual , and that it was not probable any other ways but by his oath , now after . or . years . in respect of the act of parliament , anent house mails , and others , which comprehens this case . the lords repelled the alleadgeance , and found that bargain of victual not comprehended under that act of parli●ment . james borthwick contra janet skeen iuly . . james borthwick , being infeft in the lands of oversneip , pursues reduction , and removing against ianet skeen the liferentrix . it was alleadged , that the feer being minor , non tenetur placitare super haereditate paterna , and for the liferenter , that the minor was oblidged to warrand her liferent-right , and her possession was the minors possession ; so that if her right were reduced , and she removed , the priviledge of the minor were altogether overthrown . it was answered , that the priviledge was personal , and stricti juris , and was to be extended to majors ; and as for the warrandice , it was never sustained as a ground , to exclude a reduction , because warrandice would be inferred against a minor , which is but a personal obligement , and not haereditas . the lords repelled the alleadgance for the liferenter . who alleadged further , that her right being reduced , the fee was absolute in the person of the minor , who would not suffer the liferentrix to be removed , but she did possesse by the minors tollerance . it was answered , that the pursuers reduction , behoved to accresce to him and his right , and not to the minors right , that he behoved to enter to the liferenters possession , which would not prejudge the minor ; for if the liferenter dyed during the minors minoritie , he might return to the possession in the same way , as if the liferenter were in possession ; but as for the tollerance , now the liferenter having entered by the liferent right , and it being reduced in favours of the pursuer , as the minor could not thereby attain possession ; so neither can he give tollerance to defend the liferenter . the lords repelled also this second defense . patrick urquhart contra thomas blair . eodem die . patrick vrquhart having charged thomas blair , upon a bond granted by him and william young , as co-principalls , thomas blair suspends , and alleadges , that william young has payed the whole . it was answered , that this was not instructed , and therefore not receivable , being in a suspension : it was answered , that though in a suspension , yet a terme is always granted , where it is another mans right . it was answered , that the suspender is in hazard of breaking , and has not found a good sufficient cautioner , and therefore if he get delay , he ought to give better caution : it was answered , that he had found caution who was accepted , and he was oblidged to do no more . the lords ordained him to make faith de calumnia upon the reason , but would not put him to find new caution . robert scot contra silvertounhill . eodem die . robert scot pursuing a poynding of the ground , for an annualrent , silvertounhill compeared , and alleadged possession , by vertue of a prior annualrent , and that the pursuers infeftment was base , not cled with possession . for proving possession , robert scot produced discharges granted by the annualrenter to the hetetor for the time , for himself , and in name of the tenents , which had witnesses , but designed not the writers name , and being alleadged to be null for want thereof . the lords ordained scot to condescend upon the writer of the discharge in respect the annualrent did extend to . lib. and it did prefer one annualrent to another . johnstoun of scheens contra alexander brown eodem die . johnstoun being pursued to remove from certain lands . it was alleadged , no process ; because all parties having interest , were not called , viz. the defenders wife , in respect he possest , but by her right jure mariti , and she was not warned . which the lords found relevant . mr. thomas johnstoun contra mcgregor . iuly . . mr. thomas iohnstoun having obtained the gift of bastardie of one mcgregor , and declared in general ; insists now , in his special declarator against patrick mcgregor , for merks belonging to the bastard . it was alleadged absolvitor ; because there was a gift granted in the usurpers time , and declared , whereupon the defender had transacted with the donatar , and satisfied him , and obtained his discharge . it was answered , non relevat , because in the act of parliament , confirming judicial precedor , under the usurpers , gifts of bastardry , and all following thereupon , are excepted : so that the defender , had no defense in the point of right , and as for his bona fides , it only relevant for what was truly payed , but not for what was in his hand . the lords repelled the defense , in respect of the reply . mr. james winerham conra lady idingtoun . iuly . . mr. iames winerham pursues the lady idingtoun personally , for feu-duties out of certain lands liferented by her . it was answered , non relevat , for any years before the ladies possession , because feu duties may be pursued , either really , by poynding of the ground , or personally , against the intrometters with their profits ; and because the feu-duties are as the yearly rent ; yet that cannot be extended further , than during the years the possessors intrometted . the pursuer answered , that the whole profits being lyable , for the whole feu-duties , whether of that , or preceeding years , the lady was lyable , not only for the years of her possession , but for bygones . the lords repelled the alleadgeance , and found the lady lyable personally , only for the years of her possession . ryce gum contra mckewn . eodem die . ryce gum having obtained decreet before the baillies of the cannongate , against mckewn , to repone him to an assignation , he suspends , on this reason , that the decreet was null , wanting probation , proceeding only upon the alleadged judicial confession of the suspender , without proponing any defense , acknowledging the lybel , and succumbing in the defense but simply confessing the lybel , which cannot prove against him , being under the hand of an clerk of an inferiour court only , without the suspenders subscription or oath . which the lords found relevant . mr. robert dickson contra mr. mark ker. iuly . there being a competition betwixt mr. robert dickson , and mr. mark ker , as both having the gift of the escheat of hoom of garden both past the seal in one day ; mr. robert dickson had past in exchequer long before , and his summons was raised two dayes before his gift was sealed , and so was not a regular diligence . he alleadges , mr. mark kers was more irregular , because , being a declarator , his summons was not upon . days . it was answered , the summons was priviledged . it was replyed , that the priviledge was granted periculo petentis upon a common bill , which passes without observation . the lords considering , that their gifts were both past in one day , and that there diligence was so near , conjoyned the gift , and declared them joyntly . spreul contra miller . eodem die . barbara miller having left two legaces , and named william wilson her executor , and universal legatar , he nominats his wife , and one giffin his executors ; spreul having right to the two legacies , pursues the relict , and executors of wilson , who was executor to barbara miller , for payment of the legacies . he alleadges absolvitor , because the first testament was not execute . ly . the special legacies must be abated proportionally with the general legacies : the lords repelled both the defenses , and found the general legacie not to come in pari passu with the special , and found that the executor of the executor was lyable , unless he could alleadge , that the first executor had done diligence , and had not recovered , or was exhausted . laird of ludquharn contra laird of gight . iuly . . the laird of gight having married ludquharns daughter , who remained in her fathers family , and brought forth a bairn to gight , and dyed ; ludquharn , the childs guid-sir keeped her in his family several years , and now pursues gight for her aliment , who alleadged absovitor , because the pursuer never having required a promise of this aliment , nor desired the defender to take home his daughter , it must be presumed , that the pursuer did it animo donandi , for his own oye . the lords found this defense relevant , for all years preceeding the intenting of this cause . thomas rew contra viscount of stormont . iuly . . thomas rew pursues a reduction of a decreet obtained by the viscount of stormont , who alleadged no process , because the citation was not within year and day of the summons , the warrant thereof , which bears , to cite the defenders to compear the day of next to come . the lords found the defense relevant . johnstoun contra tennents of achincorse . eodem die . johnstoun having appryzed the lands of achincorse , and charged the lord dumfries his superiour , to receive him , pursues the tennents thereof for mails and duties . compearance is made for the lord dumfries , superiour , who alleadged no process , till a years rent were payed to him , as superiour . ly , it is offered to be proven that achincorse the vassal was in nonentrie , or the liferent escheat fallen by his rebellion , and therefore the superiour ought to be preferred . the pursuer answered to the first , that seing it was the superiours fault , he received not him upon the charge , albeit he offered to receive him now , he could not have a years rent , till the pursuer insisted to be infeft . to the second , the defense ought to be repelled , seing there was no declarator intentit . the defender answered , that seing he was to change his vassal , and the appryzer sought possession , before he had access , he behoved to pay the years rent , seing by the appryzing , and the charge , the superiour will be excluded from his casualities : to the second , the superiour being acknowledged by the charge he might crave the casualities of the superiority , by way of competition , and offered to produce the horning , cum processu . the lords sustained the first defense , but not the second , seing there was no horning produced , nor declarator intentit . janet brotherstones contra ogil and orrocks . iuly . . janet brotherstones , by her contract of marriage , declaring , that she had in money , bonds and goods merks , is provided to all the conquest , and to the liferent of the whole means and moveables , she pursues her husbands heirs , for implement , who alleadged absolvitor , because she has not fulfilled her part of the contract and instructs not that she delivered to her husband . merks in worth or wair . it was answered , it must be presumed , that she has done it after so long time , seing all she had came in the possession of her husband . the lords found the presumption not sufficient , but before answer , ordained the pursuer to condescend by witnesses , or otherwise , how she would prove , that she had that means the time of the marriage , and ordained these to be examined ex officio . thomas kennedie of kirkhill contra agnew of lochnaw . iuly . . kennedie of kirkhill , as assigney by thomas hay of park , to a bond of lib. granted by andrew agnew younger of lochnaw , charges him thereupon , who suspends , and raises reduction on this reason , that the bond was granted at the time of his contract of marriage , clandestinelie , without the knowledge of his father , who was contracter , contra pacta dotalia , & contra bonos more 's . the defender answered , that he having given a very great tochar , viz. . lib. above his estate , which is all payed to his good sons father , he did declare , that he was not able to give so much , and thereupon he got this bond , not to have execution , till after his death , which he might lawfully do , having given a tochar suitable to the condition of the receiver , and above the condition of the giver . the lords repelled the reason , in respect of the answer . this was thereafter stopt to be further heard . lilias hamiltoun contra her tennents . eodem die . lilias hamiltoun being infeft by her husband , in liferent , pursues her tennents ; compearance is made for their present master , who alleadged , that her husbands right was only a wodset granted by him ; and that he had used an order , and had redeemed the wodset , and payed the money to the pursuers husband : and neither knew , nor was oblidged to know the pursuers base infeftment from her husband , the wodsetter , which had never any other possession , but the husbands . it was answered , that the pursuers seasine being registrate , he was oblidged to know the same , as well as if it had been an inhibition , especially , seing there was no process of declarator , in which case , all parties having intress , should have been called at the mercat cross , but a voluntar redemption ; albeit upon an order . the lords sustained the defense , notwithstanding of the reply . adam rae contra heretors of clackmannan . eodem die . umquhile colonel rae , having advanced victual to the armie , at leith in anno . and gotten an assignation to the maintenance of august and september , from sir iohn smith , then general commissar , in satisfaction thereof , pursues the heretors of clackmannan , for their proportions who alleadged , that by their quartering of the kings armie , their whole rents anno . was exhausted . it was answered , that it was not our that the exhausting , was after the battel of dumbar , which was upon the third of september , . and so could not extend to the maintenance of august and september , which was assigned before , for so onerous a cause . the lords repelled the defense , in respect of the reply . captain muire contra frazer . iuly . . captain muir , having obtained decreet against the heir of colonel hugh frazer for merks , before the commissioners , in anno . charges thereupon . they suspend , and raise reduction , on this reason ; that the decreet was null without probation , proceeding only upon a copy , of an obligation alleadged taken out of the register , by one william baily , who keeped the same at london , which could not prove , not being under the hand of the clerk register , or his deputes , which being proponed in the decreet , was unjustly repelled . the pursuer answered , first , there was no review raised within a year , conform to the act of parliament , and so the decreet was not quarrellable upon iniquity , ly . bailies oath was taken by commission , that the extract was subscribed by him . ly . the defender proponed a defense of payment , and so acknowledged the debt debt . it was answered , that the suspenders were , and are minors ; and in the act of parliament , there is an exception of minors , that they may reduce these decreets within a year after their majority . ly . they ought to be reponed against their proponing of payment , being minors , and as to bailies oath , neither his subscription , nor oath can make a probative extract ; unless the new extract were now produced ; seing the registers are returned . the chargers answered , that if the suspender would alleadge , that any book of the register containing , writs registrat about the time of this extract , were extant , and returned relevat : but it is known , that several of the books are lost , and this amongst the rest . the lords would not sustain the decreet upon bailies extract , simplie neither did they put the charger to the proving of a tenor , but allowed the charger to condescend upon the way of his instruction , that such a bond was truly subscribed by the witnesses , insent , or otherwayes , and ordained the witnesses to be examined . adam rae contra heritors of clackmannan . iuly . . in the cause of adam rae mentioned yesterday , some of the heretors alleadged absolvitor ; because they were singular successors , and by the act of parliament , for the old maintenance , singular successors were excepted . the lords repelled this alleadgeance , and found , that exception only to be extended to the maintenance contained in that act. bessie scot contra somervail . eodem die . bessie scot having charged somervail , who was cautioner in an suspension , for payment of an sum of money contained in a bond suspended . he suspends on this reason ; that the money was consigned in the hands of mr. george gibson , clerk to the bills , for the time . it was answered , that mr. george gibson was now out of office , and insolvent , and the consignation behoved to be upon the peril of the consigner . it was answered , that the the consignation must be upon the peril of that partie , who was the cause of consignation , and that was the charger ; in so far as it was instructed by an instrument produced , that the suspender offered the annualrent , and so much of the penaltie as the charger would have declared upon her oath , that she had truely payed , which she refused , unless the whole penaltie were payed , whereupon he consigned , through her fault . the lords sustained the reason , and ordained the noltar , and witnesses to depon upon the truth of the instrument , for instructing thereof . dowglas contra cowan and russel . iuly . . peter russel , by his ticket , acknowledged him to have received a certain quantity of wine , and oblidged him to make payment thereof , according to the condition agreed upon , dowglas being assigned to the ticket , insists for the ordinary price of wine . it was alleadged no process , for the ordinar price of wine , but only for the price agreed on , which behoved to be condescended on , and proven by the debitors oath , being above an hundred pounds . it was answered , that , seing these conditions were not adjected ; the ordinary price was to be understood , unless it were proven by the debitor , what they were , &c. that they differred from the common price . the lords found , that the debitor , by his ticket , behoved to condescend on the conditions , qui potuit legem apertius dicere , and not the pursuer ; but they found witnesses might prove the condition . heretors of don contra town of aberdeen . eodem die . this day report being made , concerning the cruives of don. the lords found , that there was no necessity to keep alwayes open a mid-stream , notwithstanding , the several acts of parliament made thereanent ; which upon enquiry through the kingdom , they found to be in desuetude , and especially in these cruives , to be made past memory , with saturndayes stop only , and ordained the distance of the hecks to be three inch scots measure , whereof . make an elle , vide supra . lady knapeirn contra sir robert farquhuar november . . sir robert farquhar , being infeft in certain lands , by the laird of knapeirn , with his ladies consent , pursues the tennents , and obtains decreet for mails and duties . the lady pursues reduction , on these reasons , that she stood infeft , and in possession eleven years after her husbands death , bona fide , without any persuit ; and so being in judicio possessorio , she was tuta re●●ptione . it was answered , that the benefit of a possessorie judgement was never granted to any partie , in prejudice of these to whom that party had disponed , or consented to a disposition , which includes an obligation to possesse them ; nor can they be in bona fide contrair their own consent , and deed , to possesse . the lords repelled the defense , in respect of the reply . it was further alleadged , that sir robert , by a declarator produced , had acknowledged nothing of that wodset due , but what was contained in a fitted accompt written by him , and subscribed by both parties , which did innovat the wodset , and sir robert could have no right thereby , but by this compt , which only could touch the husband . secondly , albeit the wodset did stand , in so far as the compt extends , yet sir robert ought to have no benefit by the wodset , till he produce the accompt . it was answered , that the accompt was never in his custodie , but given to knaperin , in whose favours it was introduced ; and seing it was clear , that his wodset was not extinct , but restricted , the pursuer behoved to condescend in quantum , and to prove it , alliganti incumbit probatio . the lords ordained , and appointed sir roberts oath to be taken , before answer on his having the compt , and yet they sound , that he ought to produce 〈◊〉 , but the interlocutor was stopt the next day . teilzifeir contra geddes . november . . marion geddes , having granted to samuel veatch , a blank bond of . merks , tailzifer being creditor to samuel veatch ; arrests all sums in her hand , owing to samuel : she depones , that she was no wayes debitor to samuel , but by a bond given blank , in the creditors name , and that she knew not whose name is filled up therein : compearance is made for whose name is filled up in the bond , and he alleadges , he ought to be preferred to the arrester , because he offers him to prove his name was filled up in the bond , and that before the arrestment , the bond was registrate in his name , and that before the said marion deponed , he had used inhibition thereupon , which she could not but have known . it was answered , for the arrester , that he ought to be preferred , because , albeit the bond was blank ab initio , yet in rei veritate samuel veatch was creditor , and so he behoved to be legaily denuded , which could not be done by filling up any other persons name , without intimation thereof , made to the debitor ; for seing a direct assignation was not valid , without an intimation , much less should this indirect way by the creditors filling up another name than his own in the blank ; which is in effect an assignation : and seing the lords have already found , that the debitor acknowledging , that he gave a blank bond to any person , and knows not whose name is filled up in it , is lyable to any arrester , albeit he be under hazard to pay again to that person who has his bord : in justice it followeth , that such bonds must be intimat , otherwayes it will unavoidably infer double payment . it was answered , that the law requires intimation to assignation as a necessary solemnity , but has not required the same to the filling up of a blank-bond , the case whereof is not alike with an assignation , because , where the bond is blank , the debitor cannot pay any thing bona fide , safely till he see the bond filled up ; but where he knows the name filled up , he may pay bona fide to the cedent , not knowing of the assignation . it was answered , that the law did require to all assignations , intimation , but the case of blank-bonds was but a late invention , to defraud creditors , that it might not be known who was creditor : but seing it is truly an assignation it deserves no favour more than a direct assignation ; and so should have as much solemnity . the lords preferred the arrester , but because the case was a leading case , and new , after a second interl●cutor adhering , they allowed the advocats to offer by b●ll any new reasons , and particularly , if it could be alleadged , that the debitor granter of the blank-bond , had before the arrestment , seen the blank-bond filled up , and so had deponed , or could depone , that the time of the arrestment the debitor saw himself to be debitor to another person , filled up in the blank , than he for whose debt it was arrested , for in that case , as the first creditor that got the blank-bond might have caused his debitor retire that bond , and give a new one , before any arrestment , so the showing of the filling up of the blank was equivalent , especially , if the debt could be proven no otherwayes but by the de●●tors oath . this case was not debated , nor was the hazard considered , that the debitors oath might prefer one partie to another ; nor was the case alike to a renewed bond : because a renewed bond would bear a new date , and different witnesses , that saw the new creditors name filled up , and would not depend upon the single testimony of the debitor . barbara skeen , and mr. david thors contra sir andrew ramsay . november . . barbara skeen being provided by her contract of marriage with umquhile david ramsay , to chalders of victual , or merks , her husband having acquired the lands of grange muire , worth chalders of victnal ; she pursues sir andrew ramsay , as heir to his brother , to make her up the superplus . the defender alleadged absolvitor ; because he offered him to prove , that the said barbara stood infeft in the lands of grange muire , upon a bond granted by her husband , which bond bears : in full satisfaction of the contract of marriage , by vertue of which infeftment , she having no other right , she had possest five or six years after her husbands death , and thereby had accepted that right , and had homologat the same . it was replyed , that the bond being a deed of the husbands a clause foisted thereinto , so far to the detrement of his wife , and the infeftment not being taken by her , but by an acturney , her possession cannot import homologation thereof , because homologation being a ta●ite , consent is not inferred , but where the homologator cannot but know the right homologat , and can do the deeds of homologation no otherwayes , but by vertue of that right , neither of which holds here , because the personal oblidgement in the contract , was a ground for the wife to have continued her husbands possession , and would have excluded his heirs , if they had quarrelled ; and not only the clause must be presumed to be without the womans knowledge , but the bond it self , and the infeftment especially , considering the simplicity of wives , and their confidence in their husbands , who , if this were sustained , would easily deceive them . it was duplyed for the defender , that he offers him to prove , that the pursuer did not continue her husbands possession , but did begin possession , her husband being never in possession before his death , and that she set two several tacks , expresly as liferenter , and the third , with consent of mr. david thors her husband being an advocat ; and so she cannot be presumed to have been ignorant , but on the contraire she must bepresumed to have known the right , and could never denominat her self liferentrix , by a personal oblidgement , to infeft her in so much victual and money , without mentioning any land in particular , and her acceptance , though to her detriment , may be the more easily presumed , because she had two children surviving her husband , in whose favour the restriction did accresce , and her husband did secure her in all that he had , but now ex post facto , the children being dead , she could not return upon sir andrew , her husbands brother , contrare to her homologation . the lords sustained the defense , and duply ; for they thought , albeit ignorance might be presumed in a wife , de recente & intra annum luctus , yet she having continued for so many years , and doing so many deeds , expresly as liferenter , and that the bond was not clandistinely , lying by her husband , but in a third parties hand , who had taken the infeftment , they thought , in that case , ignorance was not to be presumed , but knowledge . wat contra russel . november . . jean wat being provided by her contract of marriage to certain lands , and infeft therein ; the contract contains this clause , that she shall aliment , the bairns of the marriage , after the fathers death , and in case she marrie again , she shall restrict her self to six hundred merks , and the superplus shal remain to the bairns , for their aliment : hereupon she pursues robert russel , and the other tennents , for the mails and duties of the hail liferent lands , who alleadged . . that she was restricted to six hundred merks , and could crave no more , especially now being married to a second husband : compearance was also made , for the only child of the marriage , who claimed the benefit of the superplus , by vertue of the clause in the contract . it was alleadged further for the defenders , that they were creditors to the husband , before the contract of marriage : and in their tacks , had a clause , bearing ; that they should retain their tack duties , while they were payed : and upon their bonds , they had also apprized from the child , as lawfully charged to enter heir , all right he had to the lands so that if the superplus belong to the child proprio jure , it now belonged to the defenders , as appryzers . they had also raised reduction of the clause of the contract , in favours of the children , as being granted by a father in favours of his own children , after contracting of their debt , and so was fraudulent , and reduceable , by the act of parliament , . against bankerupts . it was answered , for the child , that as for the appryzing , and decreet against him , as charged to enter heir , he had suspended , and raised reduction , and craved to be reponed ; and produced a renounciation , offering to renounce all right he could succeed to , as heir to his father , but prejudice of this aliment , which belonged to him proprio jure , as a restriction granted to him , by his mother ; and as to the reason of reduction , upon the act of parliament . there was here neither fault nor fraud , their being no law to hinder a husband to give his wife what joynture he pleased ; which was never compted in defraud of prior creditors , nor is their any restriction , or proportion thereof , but as the parties agree , which is always sustained in favorem dotium & matrimonij , and the wife might take what liferent the husband was pleased to give her , there was nothing to make her to restrict her self in favours of her children , for an aliment with restriction , is no deed of the father , but of the mother . it was answered for the defenders , that the reason of reduction stood relevant , seing in this case there was manifest fraud , in so far as this liferent was exorbitant , and unproportionable to the fathers estate , whose hail lands being only worth . merks , and having nothing but the tocher , which was . merks , he infefts his wife in the hail , and yet restricted her to . merks , and provided the rest to his children ; and albeit it appears to flow from the mother , yet that is but dolose , and in effect it flows from the father . . seing the superplus was appointed to be an aliment to the hail children , seing there is but one , it ought to be modified , and what remained above the . merks , and a competent aliment , to belong to the creditors . the lords found that the childs renunciation should repone him● and found that if the provision had been exorbitant , it might have been counted as fraudulent , but they found it not exorbitant , seing the land was offered to the defenders for . merks , and there was . merks thereof liferented by another woman , so that there r●mained but . merks for the child , and therefore repelled the defenses , and decerned . vvilliam dickson contra iohn hoom. eodem die . william dickson having charged iohn hoom , upon a bond of . pounds scots : he suspends , and offers to improve the bond as not subscribed by him , but another iohn hoom. it was answered , improbation was not receivable , but in a reduction , or where the original writ was produced : but this bond was registrate in an inferiour court , and the charger was not oblieged to produce , nor was the clerk called . the lords in respect the matter was of small importance , admitted the reason of improbation , the suspender consigning principal sum and annualrent , and declared they would modifie a great penalty , in case he succumbed , and ordained letters to be direct against the clerk of the inferiour court , to produce the principal . howison contra cockburn . november . . the executors of david howison pursue iames cockburn , for the price of several ells of cloath , which the said iames , by his ticket produced , granted him to have received , in name , and for the use of the laird of langtoun , his master . it was alleadged absolvitor , because by the ticket , the defender is not oblieged to pay the cloath , and doth only act in name of his master , and therefore the merchant ought to have called for the accompt from his master , within three years , which he has not done till many years , long after his masters death . it was replyed , that the ticket must obliege him , at least , docere demandato , for his doing in name of his master , could not obliege his master , so that if he be not so oblieged , the merchant loses his debt , and no body is oblieged . it was answered , that he who acts with any mandatar , should know his commission , and if he does not know it , it is upon his own hazard ; but if the mandatar act not in his own name but his masters , he does not obliege himself ; and if servants who receive in their masters name , should be thus oblieged to shew their warrand , it would be of very evil consequence , seing their receipt can be proven by witnesses , within three years , and their warrand would not be so probable . the lords found that post tantum tempus , the defender was not oblieged to instruct his warrand , but the same was presumed to have been known to the merchant , unless it be proven by the defenders oath , that he acted without a warrand , or that he did not apply the cloath to his masters use . baxters in the canongate november . . there being a contract betwixt two baxters in the canongate , to make use of an oven , still keeped hot for both their uses , the one pursues the other , as desisting , and obtained decreet before the baillies of the canongate for . pounds of damnage , which being suspended . it was alleadged ipso jure null , as having compearance , mentioning defenses , replys , &c. and yet expressing none , but refers the defenders action to the pursuers probation by witnesses , who now offered to prove positive , that he continued in doing his part . the lords would not sustain this visible nullity , without reduction , though in re minina , inter pauperes , for preserving of form. laurence scot. contra david boswel of auchinleck . november . . umquhil david boswel of auchinleck , being debitor to laurence scot in . pounds by bond : he pursues his daughters , as heirs of line , and david boswel now of auchinleck , his brothers son , as heir-mail , or at least lucrative successor , by accepting a disposition of lands from the defunct , which were provided to heirs-mail , and so being alioqui successurus . it was alleadged for the said david , no process against him , till the heirs of line were first discu●● . it was replyed , and offered to be proven , that he was oblieged to relieve the heirs of line . which the lords found relevant . it was further alleadged for the defender , that he could not be conveened as lucrative successor , by the foresaid disposition , because the time of the disposition he was not alioqui successurus , in respect that his father was living . it was answered , that albeit he was not immediat successor , yet being the mediat successor , the disposition was precep●●o haereditatis , and the lords had already found , that a disposition to an oye , made him lucrative successor , albeit his father who was immediat appearand heir was living . the lords sustained not the lylel upon that member , for they found it was not alike , to dispone to a brother , as to a son or a brothers-son , as to an oye , because a brother is not appearand heir , nor alioqui successurus , seing the disponer , has haeredes propinquiores in spe ; and therefore cannot be presumed to have disponed to his brother , or brother son , in fraud of his creditors , seing that by that disposition , he does also prejudge his own son , if he should have one , and this 〈◊〉 prejudice to the pursuer , to reduce the disposition upon the act of parliament , as accords . mr. iames campbel contra doctor beaton . november . . doctor beaton being infeft in certain lands , wodset by the laird of balgillo , does thereafter by a minute , take an absolute disposition thereof , for a price exprest in the minute , whereupon mr. iames campbel arrests in doctor beatons hands , all sums due by him to balgillo , for payment of a debt due by magillo to mr. iames , and likewise iuhibits bagillo , after which there is a tripartite contract , betwixt bagillo on the first part ; the doctor on the second , and iohn smith who bought the lands ; on the third , the doctor and bagillo dispone with mutual consent , and the doctor particularly assigns the minute to smith , bagil●o renounces the minute , as to the price ; and smith is oblieged to pay the wodset to the doctor ; the debitor being before conveened , for making arrested goods forthcoming , and having deponed that he was owing no sums to bagillo , the time of the arrestment , but by the minute , which was an inchoat bargain , never perfected , but was past from thereafter , and that he was not disponer to smith , but only consenter , whereupon he was assoilzied ; but mr. iames campbel , having now found the tripartite contract , pursues the doctor again thereupon , & super dolo , that by passing from the bargain , and yet assigning the minute , and not destroying it , he had dolose evacuate mr. iames inhibition and arrestment , seing smith would defend himself against the inhibition upon the minute , which was anterior to the inhibition , disponing the land. it was alleadged for the doctor , that he was tutus exceptione rei judicatae , because he was already assoilzed , having deponed upon the arrestment , and the pursuer could not make use of any writ in that which he had referred to the defenders oath . . albeit the matter were intire , there was nothing to enforce him to perfeit a minute of the sale of lands , but that he might pass from it before it was extended , or might assign it to any other , which could import no fraud , seing he was not oblieged to know , or cannot be presumed , that he knew the inhibition , used against bagillo . the pursuer answered , that for the defenders oath , he did not now insist upon it , nor did the writ produced contradict it , for when a party depones upon the tenor of a writwhich is not his own writ , it can but be understood according to his memory ; but if thereafter by the writ it self , it do appear to be otherways , it does not infer perjury , nor can it justly exclude the pursuer , to make use of that writ . ly . there is not only a different matter of probation here , but a different medium from the former process , viz. damnum & dolus , at least lata culpa dolo aequiparata , in so far as the doctor did assign the minute , and exclude the pursuers inhibition , which is the more clear , that in the said contract the doctor secures himself by bagilloes obliegement , to warrand the doctor from any hazard , by assigning the minute , ubi nimia cautio arguit dolum ; neither can the defender pretend ignorance , not only by the publication , and registration of the inhibition , but upon that very inhibition , the arrestment being execute against the doctor . the lords having read and considered the triparti●e ●ontract , they found that after the arrestment was laid on , the pri●e of the land was affected , and no discharge nor renunciation by the debitor , could take the price arrested away from the arrester ; and therefore found the lybel relevant , and proven by the tripartile contract , produced and decerned , notwithstanding of the former alsolvitor upon the doctors oath . bishop of the isles contra the fishers of greenock , novemb. . . the bishop of the isles , as being presented by his majesty to the bishoprick of the isles , and whole teinds , rents , and emoluments thereof , and as thereby having right to the great teind of all fish , taken in , and about the isles of scotland ; pursues the fishers of greenock , for the teind of cod and ling , taken by them , about the isles of arran , bute and ilsey ; but insists only for these taken between arran and ilsey , or boot ; and not between these and the shore , and insists against the fishers of greenock , as fishing in that bounds : the defenders alleadged , . absolvitor , because the bishops right buire expresly , according as his predecessors had been in possession , and it was not libelled , nor could it be proven , that ever the bishop of the isles was in possession of the teind of any fish● taken by the inhabitants of the main land , albeit taken in the place libelled . ly . albeit that clause were not insert ; yet all teinds of their own nature , and by the custom of this kingdom , are local and consuetudinar , and so can be craved out of no place , or for no particular , unless they had been accustomed to be payed of these particulars by that place , as in some places teinds are payed , not only of stirk and lamb , wool and milk , but of staigs , swine , hemp , lint , eggs ; and some places of fruit , and in other places● of none of these , and that within the same parochs : and therefore , unless it were libelled , that teinds had been accustomed to be payed in this place , they are not due . ly . albeit a teind here were due of fish , it could not be due to the bishop of the isles , because such teinds being personal , and not predial , follow the residence of the takers , and not the place where they are taken ; especially being taken , not in any bay or creik of the isles , but in mari libero , several myles from any isle , except ilsey , which is no island , but a rock inhabited by no body . ly . the defenders offer them to prove , that they and others upon that shore of the main-land , has been in possession . years , of a constant fishing of cod and ling , in that place , free from all payment of teinds to the bishop of the isles , paying only two merks yearly , to the tacks-men of the viccarage of greenock , granted in tacks by the ministers of greenock . the pur●uer answered , that the clause in his charter was in his favour , and is to extend the same to all his predecessors possest , bearing as amply , &c. and that for the possession , it was sufficient that which he had condescended , viz. that he offered him to prove , that through all his diocie , the small teind of fish belonged to the ministers as viccars , but the great teind of killing , ling and herring , belonged to the bishop● and was possest by him and his predecessors , past memory , but he needs not alleadge , that he possest in every several place , where fish happen to swim ; but possessing generally about the isles , not only as to the inhabitants of the isles , being in his diocie ; but also being taken by the inhabitants of the main-land throughout the kingdom . and as in a barony , possession of a part , will be sufficient for the whole ; so it must be in this benefice , especially seing it is but of late that there was any considerable fishing in the place in question , and there was no reason , if herring and other fish , change the lochs where they are ordinarly found , that because there was never herring teinded in that loch , therefore there was none due there . the lords found the defense relevant , viz. that the defenders , and others upon the main-land thereabout● had been in immemorial possession , in the place in question , of cod and ling , free from paying any teind to the bishops of the isles ; but the lords would not sustain less then immemorial possession of the freedom , in respect of the time the bishops had been out , nor did they determine the right of the ministers of greenock , whether they had right to the hail viccarage , or that , as a small duty , but reserved that to them as accords , and they found that the defense of a constant fishing , elided the condescendence that this fishing was but new . mr. iames chalmers contra lady tinnel . eodem die . mr. iames chalmers parson of dumfreis , having obtained a decreet before the sheriff , for a part of his stipend , against this lady tinnel , for whom a procurator compeared , and took a term to produce her , and she succumbed , whereupon she was holden as confest . she suspends , and alleadges that the decreet bears not the procurator to have produced any mandat , and therefore craves to be reponed to her oath . the lords finding that there was nothing else alleadged by the procurator , that might infer his being informed , or having warrand , but only his taking a day to produce , they would not sustain the decreet , unless the charger instructed the same , by proving the quantities . white contra horn. novemb. . . in a competition between white and horn , the one having right by progresse to the property of a piece land , and the other to an annualrent forth thereof . it was alleadged for the proprietar , first , that the annualrent was prescribed , no possession being had thereupon , above fourty years . ly . the original right produced to constitute the annualrent , is but a seasine without a warrant : and albeit the common author have given charter of ratification thereof ; yet it is after the proprietars seasine , given by the common author to his daughter , propriis manibus . it was answered for the annualrenter , to the first , that the prescription was interrupted by citations produced , used upon a summons of poinding of the ground , before the baillies of the regality of dumfermling , where the lands ly . as to the second , that the confirmation granted to the annualrenter , is prior to any charter , precept , or other warrant , granted to the proprietar : for as for the seasine , propriis manibus ; that has no warrant produced . the proprietar answered , that the interruption was not relevant , because the executions were null , in so far as the warrant of the summons bears , to cite the defender personally ; or otherwise upon the ground of the land , or at the mercat cross , or shore of dumferm●ing , whereupon such as were out of the countrey , were cited● and not upon . dayes , but . which reasons would have excluded that decreet , and therefore cannot be a legal interruption . as to the other , albeit the pursuers first seasine want a warrant , yet it hath been cled with natural possession , and the annualrentars hath not . the lords repelled both these alleadgences , for the proprietar ; and found the executions sufficient to interrupt , albeit there were defects in them , that might have hindred sentence thereupon , especially in re antiquâ , the lands being in regality , where the custome might have been , even to cite parties absent out of the countrey , at the head burgh of the regality , and the shore next thereto , and as the proprietars right was not established by prescription , so they found that possession could not give a possessory iudgement to the proprietar , against an annual●entar , which is debitum fundi . mr. iames peter contra iohn mitchelson . eodem die . mr. iames peter minister of terregh pursues mitchelson for a part of his stipend , due out of the defenders lands , who alleadged no process , till the pursuer produced a title to the defenders teinds , seing he brooked them by a tack . it was replyed , he offered him to prove seven years possession , as a part of the stipend of terreghs . which the lords sustained without any title of possession . bruce contra earl of mortoun . novemb. . . in an action for making arrested sums forthcoming , between bruc● and the earl of mortoun . the lords found that the summons behoved to be continued , seing they were not past by a special priviledge of the lords , to be without continuation , albeit they were accessory to the lords anterior decreet , against the principal d●bitor , which they found to be a ground to have granted the priviledge of not continuation , if it had been desired by a bill , at the raising of the summons , but not being demanded , they found quod non in erat de jure . younger contra iohnstouns . eodem die . patrick porteous having a tenement of land in edinburgh , provided his wife thereto in liferent , and dyed before the year . his wife lives and possesses as liferenter . yet in anno . one porteous his brother son , was served and retoured heir to him , and infeft as heir , and disponed the land , which is come through three several singular successors to iohnstouns , who are infeft therein , as heirs to their father , in anno . young●r having acquired a● disposition from stephanlaw , porteus residenter in polland , causes serve the said stephenlaw , as nearest heir to the said patrick , whereupon stephenlaw is infeft , and younger is infeft . there are now mutual reductions raised by either parties , of others retours and rights ; wherein younger alleadging , that his author stephenlaw , porteous was the nearest of kin , in so far as patrick the defunct had four brethren , and stephen law porteous was oye to the eldest brother , whereas the other pretended heir was son to the youngest brother , which he offered him to prove . it was answered for iohnstouns , absolvitor from that reason of reduction , because they had established their right by prescription , in so far as they had a progress of infeftments , far beyond the space of fourty years cled with possession , by the liferenter , whose possession behoved to be accounted their possession , because the act of pa●liament anent prescription , bears , that the person infeft being in possession by himself , or by his tennents , or others deriving right from him , and therefore the liferenters possession is alwise the fiars . ly . by the first act of parliament anent prescriptions of retours , they prescrive , if they be not quarrelled , within three years . and by the last act of parliament . anent the prescription of retours , they are declared to be prescrived , if they be not pursued within twenty years . and by the general act of prescription . there is a general clause , that all reversions , heretable bonds , and all actions whatsomever , shall prescrive , if they be not followed within fourty years . by all which , stephenlaw porteous , not being retoured till the year . nor having moved any action against the first retour . this action of reduction , and all other actions competent , are prescribed . it was answered for younger , that he being heir to maintain the right of blood , which is the most important right , competent by the law of nations , no statute , nor positive law can take it away , unless it be express and evident , for the right of blood can never prescrive , seing it is certain , that a man may serve himself heir to his predecessor , though he died a . years since , if he can instruct his service . and as for the acts of parliament alleadged upon , they cannot take away any right of blood , for the first act of prescription , on three years expresly , bears , to extend to these within the countrey , as stephenlaw was not : and the last act is expresly , only in relation to retoures , to be deduced thereafter , but this first retour quarrelled , was deduced long before , viz. in anno. . as for the general act of prescription , seing it mentions not retoures , but only infeftments● reversions and heretable bonds ; the general clause of all actions whatsomever , ought not to be extended to retoures , especially , seing the meaning of the parliament appears not to have been extended by them to retoures , because the very next act doth specially order the prescription of retoures . as to the iohnstouns infeftments , they have not the benefit of prescriptions , never being cled with possession : for the liferenters possession , as it was the defuncts possession : so it did continue to be the true appearand heirs possession , although none had been served to this day ; and therefore the service or infeftment following thereupon , cannot take away from the true heir the presumptive possession of law , which the true heir hath . ly . no prescription can be valid against others : but these that know , or are at least oblieged to know the right , whereupon it proceeds ; but the true heir was not oblieged to know their service , nor was he oblieged to serve himself , but when he pleased , especially seing he could get no benefit as long as the liferenter lived , and that he was not oblieged to know the first service , appears , because he was not called thereto , otherways then by a general citation at the mercat cross , to all parties having interest , which is but a point of meer form and prejudges no body , and at least could not prejudge a stranger , living out of the countrey , animo remanendi , there being neither special nor general citation , as to persons out of the countrey on . dayes . the lords found no weight in this last point , seing the law requires no citation on . dayes , in cases of retoures , but only . dayes generally , at the mercat cross , which they find every man , origine scotus , oblieged to take notice of , or to have a procurator at edinburgh , as in communi patriâ , who may search the register of retoures , whether in the publick register , or town books , before they prescribe . they also found that there was no ground for prescription upon the first act of parliament , as bearing only relation to these in the countrey , nor upon the last act of parliament , as bearing only relation retoures , to be deduced thereafter , neither did they sustain the prescription upon the first part of the general act of prescription ; for they found the liferenters possession in the competition of two heirs , not to be profitable to either of them , in prejudice of the other , nor yet to be the possession of singular successors , seing it flowed not from these singular successors , but from the defunct , to whom both parties pretended to be heir ; but the lords found the posterior clause in the act of parliament , of all actions whatsomever to extend to the reduction of retoures , and to be general , as to all actions that may concern heirs , in prejudice of others : and found it so much the rather to extend to retoures , that the next ensuing act finds retoures to be deduced thereafter , only to be reduceable within twenty years , and so finds the reduction thereof to prescrive sooner than other rights ; and therefore cannot be thought , not to have meaned to reach bygone retoures , by the general act. creditors of james masson merchant supplicants . nov. . . james masson merchant in edinburgh having unexpectedly broke and fled , his creditors gave in supplication to the lords , bearing , that he had most deceitfully broken , having the price of the goods that he had sold , meditatione fugae , in his hand , and that he either lurked in the abbay , or was to go out of the countrey ; and therefore craved a warrand to messengers of arms , to secure his goods , and apprehend his person wherever the same could be found , until the matter were heard . the lords having considered the case , that the occasion was very extraordinar , and also the desire , most were of the opinion , that the lords might grant the desire , which was done accordingly , with a recommendation to the duke of hamiltoun , keeper of the kings house , not to suffer him to lurk there , but to expel him , that he might be apprehended : for albeit ordinarly the lords grant not caption or warrant of wairding the person of the kings free leidge , till he be denunced rebel . yet seing the magistrates of burghs , and the admiral grant acts of wairding against parties , until they find caution to answer as law-will . the lords who had eminently in themselves these jurisdictions , they might do the like in the like case : but some thought that was a special priviledge , not to be extended , and this was of dangerous example to secure persons unheard , more proper for the council , as a case extraordinar , then for the session . david boyd contra isobel lauder and iohn tailzifer eodem die . david boyd pursues iohn tailzifer , as representing his father , on all the passive titles , and isobel lauder his mother and tutrix , for her interest , and condescends upon his behaving as heir , by uplifting of the mails and duties of his fathers lands , by his said tutrix . it was answered , that he being a pupil , his tutrix intromission could not infer that passive title against him , as hath been frequently sustained these many years . it was answered , that was but since the usurpation , but before the tutors intromission , did alwayes infer this title , and the pupil could only pursue his tutor for his damnage . the lords found the pupil not lyable on this passive title , by his tutors intromission . the pursuer then insisted against the tutrix , for paying so far as she had intrometted . it was answered , that she was but called for her interest , to authorize her pupil , but not to pay , neither could she be lyable to pay , unless a decreet had been first established against the pupil● and then it had been arrested in her hands , and pursued to be made forthcoming . and yet the lords found the tutrix , hoc ordine , lyable . white contra brown. eodem die . john white as having right from iames white his fathe● , charges brown for . merks , who suspends on this reason , that this translation being by a father to a son , in his family , at least having no visible estate to acquire it : the suspender cannot be prejudged , as to the manner of probation , by the fathers oath , by which he offered him to prove , that the father was debitor in a greater sum. it was answered , that the cedents oath could not be taken in prejudice of the assigney . the lords found that in this case , the reason was probable by the cedent oath . telzifer contra geddes . decemb. . . the competition between telzifer and geddes , mentioned the eleventh of november last , being this day again called , debated and reconsidered by the lords at length . the question being , that marjory sandilands having granted a bond to samuel veatch , blank in the creditors name , samuel filled up marion geddes name therein , whereupon she registrat the bond , and charged him , in the mean time telzifer , as veatches creditor , having arrested all sums in marjory sandilands hands , adebted by her to samuel veatch , and pursuing to make the same forthcoming , she depones that the time of the arrestment , she was no wayes debitor to veatch , but by a bond blank in the creditors name , and that she did not know whose name was filled up in it : but now telzifer the arrester compearing , craves to be preferred , because he had arrested the sum , as belonging to samuel veatch his debitor , before samuel veatch was denuded , by filling up marion geddes name , and intimating , or showing the same to sandilands the debitor , and that the filling up of geddes name , being but an assignation , did necessarly require to accomplish it , to denude the cedent , an intimation , for seing express assignations do necessarly require intimation , to prefer them to arrestments ; much more ought indirect assignations , which are suspect of fraud , and by which a debitor may keep all his estate in the cloud , that none of the creditors can reach the same , by arrestment or otherwise . and it being answered , that the bond being delivered blank , there was no present creditor , but a power granted to the receiver of the bond , to make creditor whom he pleased ; at least there was no certain creditor , so that samuel veatch was never creditor , but had only the power to make the creditor , and so needed not to be denuded , nor was there any law or custom , requiring intimation of the names filled up in blank bonds , and if any such thing were done upon the accompt of expediency , it ought only to be in time coming . the lords adhered to their former interlocutor , and found veatch to have been the true creditor , and the filling up of the other name , to be a transmission equivalent to an assignation , and required intimation , as well for cases past as to come ; for they thought that if veatch , before the filling of the bond had been rebel , it would have fallen within his escheat . edward edgar contra colvills . decemb. . . edward edgar pursues colvil success or lucrative to his father . mr. alexander colvil , in so far as he accepted an assignation of an heretable bond , unto which bond he would have succeeded as heir . it was answered , that this passive title was never extended to bonds of provision , granted by a father to his eldest son , and if in security and satisfaction of such a bond of provision , an assignation of a debt , due to the father and his heirs , were granted , could not infer an universal title , to make the accepter lyable to his predecessors whole debt , so neither can an assignation to a bond , which is no more in effect , and such odious passive titles are not to be extended , but the pursuer may reduce upon the act of parliament . or at the farthest , may crave by this process , the simple avail of what the defender hath intrometted with , by vertue of the assignation . the lords found the condescendence relevant , as being preceptio haereditatis , and as an assignation to a tack , or a small annualrent , hath been found sufficient , so there is like or more reason for assignations to heretable bonds , which may be more easily conveyed away from creditors , but they found it not alike as to bonds of provision , whereby the father became debitor , and in satisfaction and security , whereof he might assign , and would only import single payment , but not an universal passive title . hugh mcculloh contra mr. iohn craig . eodem die . hvgh mcculloh having right to an apprizing of an heretable bond of . merks , due by umquhil mr robert craig to patrick wood , pursues mr. iohn craig as heir by progress , for payment thereof , and produces a new extract of the appryzing , by the clerk of the appryzing , together with the said appryzing , but so spoiled , that neither the subscription of the messenger nor clerk could be known . the defender alleadged no process , till the principal appryzing by the messenger were produced ; because it being in effect the executions of the messenger , to whom more was trusted then to the clerk : the extract by the clerk without the messenger was not sufficient . it was answered , that appryzings of old were all direct to the sheriffs of the shire , and were in effect judicial process , wherein parties were cited , called and decerned ; and now the messenger being constitute sheriff in that part by the letters of appryzing , he may choise his own clerk , and the extract of that clerk is sufficient , as of all other clerks ; and albeit for more security , both clerk and messenger subscribe : yet it hath not been determined how far the messengers subscription is necessar : and the decreet of appryzing is not the executions of the appryzing , which are distinct therefrom , and instructions thereof . the lords thought that the new extract behoved , either to be astructed with the letters and executions , and other adminicles , or that they would not sustain it alone : but the question was , whether it should be astructed , hoc ordine , or by a proving of the tenor , in a several process , which was carried by the plurality . thomson contra henderson . decem. . . thomson having granted a bond to his brother of a sum of money , the same was assigned to henderson , who thereupon charged . the debitor suspends , and produces a discharge by the cedent of the same date , and witnesses with the bond , and alleadged that the debt being discharged before the assignation , excluded the assigney . it was answered , that the discharge was granted most fraudulently , so that the fraud betwixt the two brethren , is manifest to have been contrived to deceive , any person should contract with the creditor , whom they saw to have a bond of a solvendo person in his hand● and so might be induced to lend him money , or contract with him in marriage , or otherwise ; and the charger having upon that accompt , lent him money , and taken assignation , cannot be excluded by this contrivance , which was done pessimo dolo . it was answered ; first , that dolus was not competent by way of reply . ly . that the assigney took the assignation on his own peril , and he should have asked at the debitor before he took it . the lords , though the matter was of small importance , were willing to take the matter of fraud to consideration by way of reply ; and therefore ordained the suspender to condescend upon some reasonable cause of the granting of the bond , and taking back a discharge thereof at the same time . beg contra beg. decem. . . beg having disponed some land to his son , redeemable on a rose-noble , and having married a second wife , he disponed the same to her in liferent , and assigned her to the reversion . the father having used an order , pursues declarator . the son alleadges absolvitor , because he was assigned to an appryzing : which appryzing carried the right of the reversion of that wodset , and thereby his father was denuded of the reversion , and could not redeem the wodset , till he redeemed the appryzing . it was answered , that the father was not simply denuded during the legal : during which time , the appryzing was but like a right granted in security , which denuded not the fiar ; as if the son for security of a sum , had been assigned to the reversion , the father was not denuded , but might use the order , by which the security was not worse but better ; the same holds in this case ; and therefore it is , that he against whom an appryzing is led , may redeem the first appryzing , albeit the second appryzer has appryzed the reversion , otherwise no man could redeem an appryzing , unless he redeemed all his appryzings at once , which have different legals ; and this case is as favourable , because the reversion was only to the father in his own life ; and therefore the son endeavoured to hinder him to redeem , by taking right to this appryzing . it was answered , that the case was not alike in a conventional reversion , as in a legal : and that the appryzing led against the father in his life , would perpetuat the reversion ; and that this case was unfavourable , where the father intended to frustrate his heir , in favours of the wife of the second marriage , to whom he had assigned the reversion . the lords having upon the first report considered the favourableness of the sons case , sustained the defense , but afterward upon bill , ordained them to be heard again in presentia , and having heard them , the lords were of different opinions , so that that came not to a vot ; but the lords before answer , ordained the wife to insist upon her right , who alleadged that she might redeem , ad hunc effectum , to enjoy the benefit of her liferent right , after her husbands death . it was answered ; first , that she wanted the concourse of her husband . ly . that her assignation was not intimat . it was answered ; first , her assignation was registrat in the register of reversions , conform to the act of parliament : which registration being publicandi causa , needed no intimation . ly . that she had a disposition in liferent , by her contract of the lands , which carried omnejus , in the disponer , as to the liferent right , during her life , and so carried the reversion , though not exprest , and her seasine being registrat , it was equivalent to the registration of the assignation . the lords sustained the wifes interest , and declared in her favours , for her liferent use , and found the disposition with the seasine registrat , and the assignation also registrat sufficient . cheisly contra cuthbert . eodem die . cheisly charges cuthbert for his prentis-fee : who suspends , and alleadges that he was set prentise to him as apothecary , and that he deserted that employment , and became a drogeist , and thereupon the suspender left him . it was answered , that , the breeding of him as a drogeist was sufficient , and that he now practised as apothecary and cherurgeon . the lords found this answer not relevant , the suspender being set to him as apothecary , to make drogs , and not as a drogeisi that buyes drogs , as to the time after he changed : but the charger having further offered to prove , that he constantly in his chamber , makes , as well as sell drogs , the lords found it relevant . richard cunninghame contra duke of hamiltoun . eodem die . richard cuninghame pursues the duke and dutches of hamiltoun , for payment of a bond , granted by the late duke , which being produced , appeared to have been blank in the sum , date and creditors name . the defenders alleadged , the bond was null , as wanting the designation of the writer . it was answered , that they did now design him , which has been alwayes allowed by the lords . it was answered , that though the lords have done so , ex officio : yet in a case of this nature , where the debt is so old , never mentioned before , and the bond in the substantials blank , in which case the lords ought to keep by the express words in the act of parliament , that such writs are null , and not to be supplyed by an equivalent . the lords repelled the defense , and admitted the designation . hellen hill contra maxwels . eodem die . in an accompt and reckoning between hellen hill , relict of iohn maxwel in glasgow , who was one of the tutors named by iohn to his bairns and mr. robert and george maxwels his brethren , who succeeded the daughters , being dead : iohn by his testament leaves his two daughters , and failing of either of them , by decease to the other , his universal legatars ; one of the daughters dyed pupil , and the other shortly after her age of . years , nominat the said hellen her mother , universal legatrix , whereby hellen craved the universal legacy of both the daughters . it was alleadged that the last daughter , not having confirmed her self executrix to the first ; the first share was never established in her person , and so could not be transmitted by her testament , but belonged to the nearest of kin , of the first daughter , viz. the saids maxwells . it was answered , that this being a substitution of each of the two daughters , to other , nominatim by the death of the one , it accrest into the other , ipso facto , without confirmation , as in the case of bonds of provision , payable to the father , and by decease of him , to such a bairn named , albeit the father be fiar , and the bairn but heir substitute , it needs not confirmation ; but the bairn may summarly charge or pursue . the lords found no need of confirmation , but that it did accresce to the second daughter , upon the death of the first , and so was carried by the seconds testament : in this account , mr. robert as heir , pursuing for the heretable bonds . the tutrix answered , that she ought to have allowance of what was wared out upon repairing of the tenement in glasgow . it was answered , that she as tutrix , ex officio , was oblieged to exhaust the moveables first , one person being both heir and executor , and not to exhaust the heretable bonds , that bore annualrent , and to let the other lie unprofitable , and now to apply it to her own use , by her legacy . it was answered , that it was employed upon the heritage , and so was profitable to the heir only , being employed upon the house , and that by a warrand , the heir being then under tutors , to repair it out of the first and readiest of the defuncts estate . the lords found that article relevant , to be deduced out of the heretable estate . elizabeth anderson contra andrew cunninghame . december . . andrew cunninghames wife having left a legacy to elizabeth anderson : it was alleadged by the husband , that his wifes share of the moveables was exhausted . it was answered , that he having confirmed his wifes testament , and given up the debts due by him therein , and made faith thereon , he cannot now be admitted to adduce any other debts , especially being so recent before the testament , within three or four years . it was answered , that he had only made faith upon the inventar of the goods belonging to him , but not of the debts due by him , which were only given up to abaite the quot : and albeit it may be presumed that he knew and remembred his own debt , yet presumptio cedi● veritati , seing the creditors now produce their bond instructing the debt , and crave preference . which the lords found relevant , vid. iune . . katharin smith and william duncan contra isobel robertson . eodem die . katharin smith and william duncan having apprized from isobel robertson , and iohn wilson , all right they had to a tenement , under which fell the liferent-right of isobel robertson his wife , jure mariti , pursues the said isobel , for payment of the mails and duties that she had uplifted , and of a part of the tenement that she dwelt in her self : she alleadged , first , that her husbands jus mariti , could not carry her liferent , seing immediatly after the marriage he went out of the countrey , and was never heard of since , and she had obtained decreet of adherence against him , and was going on in a divorce for malitious deserting . the lords repelled the alleadgance , seing the divorce was not compleat , and this was four years anterior . the said isobel further alleadged absolvitor , for the rents of her dwelling-house for bygones , and for what she had uplifted , because she had done it , bona fide cum titulo , viz. her husbands obliegement to aliment her as his wife , & bona fide possessor facit fructus consumptos suos . which the lords found relevant , and that albeit her husband would be lyable for these rents , which alimented his wife , yet not she . david veatch contra iohn duncan . eodem die . david veatch as heritor of the miln of dersie , pursues iohn duncan , for abstracted multures , and obtains decreet . he charges and iohn suspends , both parties being ordained to produce their rights : the heritor of the miln , instructs that his author was first infeft in the miln , before the defenders author was infeft in the land , and produces a decreet of the lords in anno . declaring the thirlage , wherein it was alleadged that the heretor of the miln being first infeft of the common-author , and producing a precept from cardinal beaton , then bishop of st. andrews common-author , ordaining the tennents of the defenders land , to pay the multure to the miln of dersie . it was alleadged , this was not sufficient , seing the charter did not thirle the defenders lands , but was only of the miln and multure thereof generally , as for the cardinals precept , it was not with consent of the chapter , and so could not extend beyond the bishops life : yet the lords declared the astriction , notwithstanding it was now alleadged , that the defender was infeft , cum molendinis & muliuris ; by vertue whereof , he had prescribed his freedom by . years time . it being answered that once being thirled by the common-author , no charter granted by him thereafter , could prejudge the feuar of the miln . and as for prescription , offered to prove interruption , by paying of insucken-multures within the space of . years . william cranstoun contra walter pringle . decemb. . . william cranstoun being vassal to greenknow , he was amerciat in his court , for a blood committed upon walter pringle : and being charged , suspends upon this reason , that greenknow not being a baron , or the kings immediat tennent , had no power of blood-waits , unless he had had an express deputation from his superiour , the marquess of huntly , who is baron only having the jurisdiction . it was answered , that greenknow was infeft , cum curiis & bloodwitis . which the lords found sufficient . mr. john pearson contra martin and his son. eodem die . mr. iohn pearson , by his contract with eupham martin , did conceive the clause of his tochar , in thir terms , that it should be payable to him and her , the longest liver of them two in conjunct-fee and liferent , and to the heirs of the marriage , in fee ; which failzing to return to the wifes heirs . by a second contract , betwixt the husband and his wife , it was agreed that that clause should be altered ; and that failzing the heirs of the marriage , it should return to the mans heirs , who thereupon pursue declarator of right , by vertue of the second contract . the defender being absent . the lords advised the cause wherein the difficulty appeared to be , that the tochar was provided to the bairns in fee , so that the husband and wife could not alter the succession , being both liferenters , because , that the clause bears , to them in liferent , and to the bairns in fee ; yet the lords sustained the declarat●r ; seing the husband and wife were named conjunctfeers , so that either of them behoved to be fear , and the adjection of , and liferent could only be understood of the person that were liferentar , and albeit it was exprest to be the bairns in fee , yet that could be but of a substitution , seing there were no bairns then existent . christian barns contra hellen young and her spouse . eodem die . hellen young being provided to the annualrent of merks , and to the conquest , obtained decreet thereupon , against christian barns the executrix , who suspends on this reason , that the pursuer was infeft by the defunct her father , in a tenement , in full satisfaction of these provisions . it was answered , nonrelevat , unless it were alleadged , that the charger had accepted . whereupon it was alleadged , accepted , in so far as she had uplifted the mails and duties after her fathers death , and had no other title ascribe it to . it was answered , that she had another title , viz. her goodsir had disponed this tenement to her father and mother , the longest liver of them two , and the bairns of the marriage , be vertue whereof , as heir appearand of the marriage , she might contiue , and uplift , and miskene the new infeftment given by her father . which the lords founds relvant , unless the other partie insist on that alleadgeance proponed , that the pursuer had pursued , and obtained payment upon the title bearing , in satisfaction . john ramsay contra james wilson and others . eodem die . colonel cunningham , having impignorat a number of jewels of great value , and immediately thereafter , went out of the countrey , and never returned . these jewels were in the custody of iohn ramsay , who , and mr. robert byres had given bond , to make them furthcoming to the colonel , and now iohn ramsay having been confirmed executor to the colonel , pursues iames wilson , and others , for exhibition , and delivery of the jewels . the defenders alleadged absolvitor , because the jewels were impignorat by mr. robert byres for a considerable sum of money , who having them in his possession , it was a sufficient ground for the defenders to contract with him , because property of moveables is presumed by possession ; and therefore it is not relevant to lybel , that once the jewels were colonel cunninghams , and therefore they must be restored to his executors , unless it were also lybeled quomodo desijt possidere , so that the jewels behoved to have past from him , without his own consent , or alienation , otherwise it is alwayes presumed , that he sold or gifted them , and needs not be proven ; else no man could be secure of any moveable : if he who could instruct , that he bought it , could recover it from all possessors , unlesse they could instruct all the wayes the same past from the first owner . the pursuer replyed , that the case is not here , as to moveables , that are ordinarily sold in mercat , but in relation to jewels of great value , which cannot be presumed to have been mr. robert byres , because they were never worn by him , as being his proper good , nor were they competent to any of his quality : and therefore the defenders were , in mala fide , to acquire them from him , without knowing his right . ly . it is instructed by mr. robert byres letter produced , that he acknowledged them to be colonels , before the impignoration : and it s offered to be proven , that he broke up iohn ramsays celler , and took them out . dly : the colonel impignorat them by writ , and so the presumption of allienating them , ceased , because he went immediately out of the countrey , and never returned . it was answered , that there is no difference of jewels , more than any other moveables , which use to passe without writ from jewellers that sell them ; and the pursuer having possest them these , . or . years , without question , has right thereto , by usucapion . the lords found the alleadgeances joyntly relevant to elied the presumption , and that there is no usucapion in moveables in scotland , by possession in less then years , but only a presumptive title , which is altogether eleided by the answers . duke of hamiltoun contra laird of clackmanan . december . . the duke of hamiltoun , as collector of the taxations . charges the laird of clackmannan , who suspends , and produces discharges of the first three terms . it was alleadged , these discharges could not liberat , because they were granted by iohn scobie , who was neither sheriff , baillie , nor clerk ; nor does it appear , that he had any warrand , or commission nor does his discharges mention any commission , or warrand . it was answered , that by the discharges produced , it appears , that ormistoun and humbie , deputed for the duke , had granted discharges to this iohn scobie , and offer to prove , that he was in use of uplifting the taxations during the terms themselves , and was commonly repute , as collector thereof , which must be sufficient post tantum tempus . it was answered , that that ground would not oblidge the sheriff , and so both the heretor and sheriff , being free , the king looseth his right . yet the lords sustained the reason . monteith contra mr. john anderson . december . . in a reduction , at the instance of monteith against anderson , a reason of payment being found relevant , mr. iohn produced an incident , at the first terme , and a diligence against witnesses , for proving the having of the writs , at the second term. which incident the lords sustained , and would not restrict the terms of probation in the incident , to horning against the witnesses , and caption , but allowed four terms , and ordained the same to be shorter . mr. john elies contra keith . eodem die. there was a bond of merks , granted by wiseheart parson of leith , and keith his spouse , to mr. iohn elies containing an oblidgement to infeft him in an annualrent out of any of their lands , with a procuratorie . the wife had then the lands of benholm , belonging to her heretablie , lying in the mairns , mr. iohn having inhibite her husband and her , she sold the the lands before the inhibition was published at the head burgh of the mairns , and having thereafter right to a sum of merks for which she was infeft under reversion , in other lands , an order of redemption was used , and the money consigned ; mr. iohn elies pursues a declataror , to hear and see it found and declared , that the said keith was oblidged to infeft him in an annualrent , out of her lands , which she had fraudulently disponed , contraire her obligation , and therefore was now oblidged to infeft him in other her lands , or to pay the sum , as damnage , and interest ; and that therefore any other lands , or rights belonging to her , might be affected for his payment , and particularly the wodset now in question . compearance was made for the defenders grand-child , who had a right from her grand-mother to the wodset , who alleadged , first , that the bond bearing , an oblidgement for debt , granted by the wife , stante matrimonio was null . it was answered , that albeit the personal oblidgment were null , yet the oblidgment , to infeft in an annualrent granted by a wife , is valid , either against her heretage , or liferent , and alleadged several dicisions therefore . it was answered , that the wife might do so , if she had borrowed money for her own use , or were principally bound to infeft in an annualrent , but this oblidgment being in security of her personal obligatigation , with her husband , the principal obligation being null , the accessory is also null . the lords repelled the alleadgeance , and found the oblidgement to infeft valid , albeit accessory , because deeds , and obligations of wyfes not to affect their persons , but estates are valid ; and albeit she had not been bound for the principal debt , she might either have effectually disponed an annualrent , or which is all one , oblidged her self to infeft in an annualrent out of her heretage , & utile per inutile non vitiatur . it was further alleadged , that this wodset , or sum disponed to her oy , could not be affected , because her oy , was the youngest of many oyes , and did no wayes represent her . the lords sustained this member of the declarator also , upon the act of parliament , . against dispositions between conjunct persons , without a cause onerous , which they found , might either be a ground to reduce the same , or to declare the same to be affected , as if the right were in the disponers person . herein it was also lybelled , that this wodset , albeit acquired after the inhibition , yet seing it lay in the same shire , where the inhibition was published , the grand-child's right were reduceable , upon the inhibition . the lords thought so , because inhibitions being personal prohibitions , reach both acquisita and acquirenda , by the person inhibit , in the shires where it is published . laird kilbocho contra lady kilbocho . december . . the lady kilbocho , by her contract of marriage , being provided to certain lands , with this provision further , that she should have the liferent of all lands conquest , during the marriage , whereupon she obtained a decreet in the english time , which being now under reduction . it was alleadged , the clause of conquest could only give her the lands conquest , with the burden of the annualrent of a sum due by the defunct , to a person from whom he bought the land , as being a part of the price of the land , especially , seing by a writ under the defuncts hand , he acknowledged , that this bond was granted for a part of the price . it was answered , first , that a personal oblidgement cannot affect the land , neither can it affect the ladies person : but if the defunct had pleased , he might have granted an annualrent out of the lands conquest , which then would have affected it , which not being done , his declaring that this sum was a part of the price , cannot be effectual , nor can infer a probation against his wife , in prejudice of her anterior right . secondly , this alleadgeance might be proponed as well against the heir of conquest , as liferenter thereof , and yet it was never found , that the heir of conquest behoved to accept the land with the burden of the sums borrowed to buy it , nor yet to relieve the heir of lyne thereof ; but on the contrair , the heir of conquest has relief against the heir of lyne , for personal debt , though borrowed for acquiring the right . the lords found that the case was not alike with the heirs of conquest , whom defuncts do infeft , without any burden ; and liferenters , who having a speciall competent provision , this general clause being but adjected , as uncertain , is not so favourable , or so to be extended ; seing the husband did not infeft the wife in his own time , in the conquest . and therefore found her to be lyable to the annualrent of this sum , which they found instructed by the hubands declaration , where the ladies father is a subscribing witness . sir rorie mcclaud contra walter young and john govane eodem die . walter young , iohn govan and hendrie hope , by a letter written to any that they should buy kows from in the highlands , desired , that they might use the bearer of the letter kindly , and for whatever quantity of kows they bought , they should answer such bills , as he should draw upon them therefore . hendrie hope being broken , iames gray , as assigney , pursues the other two for the whole , who alleadged , they were only lyable for their own parts . it was answered , that they were oblidged to answer such bills , as the person intrusted by them should draw ; and they produce a bill drawn by him , upon them , or either of them . it was answered , that such bills can only relate to the quantity , and not to the quality , and manner of oblidging ; seing if they had so intended , they would have oblidged them , and either of them , or it would have born , what he should draw upon them , or either of them , should be answered . the lords found every one of them lyable in solidum , for they thought that the clause being dubious , was to be interpret against the writers , and the sellers of the kows , were bona fide to rest upon the interpretation of the persons intrusted . sir john leslie contra sinclar and dun. ianuary . . sir iohn leslie , as assigney constitute by sir william dick to a bond , oblidging francis sinclar as principal , and young dun as cautioner , to deliver chalders of bear ; at merk the boll , dun alleadges absolvitor , because he was minor in familia paterna , and so his father was his curator of law , and therefore his subscribing as cautioner was null , being without his fathers consent . it was answered , the alleadgeance was not competent by exception , against a clear liquid bond. secondly , that the defense is only competent in the case of curators chosen . the lords found the defense competent by way of exception ; but before answer to the relevancie ordained the parties to condescend upon duns age , the time of his subscription , and whether he did then administrat , or go about any other affairs . dame rachel burnet contra lepers . december . . by contract of marriage betwixt mr. iohn leper , and his father , and and dame rachel burnet on the other part , both father and son were oblidged to employ lib. upon security for the liferent use of the said dame rachel , who , with concurse of prestoun her present husband , pursues the sisters of the said mr. iohn leper , as heirs , and otherwayes representing him , and their husbands , for their entrests ; and likewise doctor balfours wife , only daughter of an of the sisters , as heir to her father , and mother , against whom there was decreet of registration obtained , during their lifetimes together , and on this ground , that the defuncts husband did by contract of marriage , disposition , or otherwayes ; obtain right to the portion of his wife , one of the sisters , and heirs , and therefore is lyable in payment in quantum lucratus est . it was alleadged for doctor balfour and his wife , that she was willing to renounce to be heir , to her mother , but as for the other passive title , as representing her father , who was locuple●ior factus ; it is no wayes relevant , for marriage , is a cause onerous , and tochars are granted ad sustinenda onera matrimonij , and therefore are never counted fraudulent deeds , or without an onerous cause ; nor do they fall within the act of parliament . against fraudful alienations ; neither was the defenders father lyable though there was a decreet of registration against him , because before any execution , the marriage was dissolved . it was answered , for the pursuer , that that member of the lybel stands relevant , because the defenders mother being heir to her brother , the contracter could not transmit her estate to her husband , without the burden of her brothers debt ; and it is a most unquestionable ground in law and equity , quod nemo debet cum alieno damno locupletari , and therefore creditors are still preferred to portions of children , though given for their tochar . the lords found that member not relevant , that decreet was obtained against the husband and wife , stante matrimonio , seing it received not execution ; and as to the other member , they thought , that if there were but a moderat and ordinar tochar , proportionable to the burdens of the marriage , it would not infer repitition , or if the tochar was great , or an universal disposition of all the heirs right , they thought the husband would be lyable , in so far as it was above a proportionable tochar , and therefore before answer , ordained the contract of marriage to be produced , and the pursuer to condescend , if there was any other benefit accresced to the husband by his wife , then by vertue of the contract . it was further alleadged , for the lady pitmedden , one of the sisters on life , that she could only be lyable for her own sixth part , as one of the six heirs portioners . it was answered , by our law , that all heirs were lyable in solidum . there was several decisions alleadged on either hand , on the . of february . hoom contra hoom : where the lords found the heirs portioners lyable but for their own share . another february . and march . . watson contra or , whereby one of the daughters having a disposition of the whole estate , was found lyable for the whole debt . and another ianuary . . where one of the heirs portioners , having disponed her share to the other , and thereby being insolvent , that other was found lyable in solidum . the lords having considered the case , found the heir portioner lyable , iprmo loco , only for her own share , untill the rest of the heirs portioners were discust , but determined not whether these who were solvendo , should be lyable in solidum , albeit the debt exceeded their portion , or only intirely for their own share , and for as much more as the value of their succession could amount to . laird of cesnock contra lord bargany . eodem die . the laird of cesnock and the lord bargany , and balcarras , being bound conjunctly and severally in a bond ; cesnock being distressed for the whole , takes assignation , and pursues bargany for two thirds , who alleadged payment ; and because it was a publick debt , he produced an incident in termino , which the lords sustained not , because it buire no warrand to cite cesnock the principall partie , and the executions were within hours by one person , in kyll , renfreu , fyfe , and edinburgh , and so suspect , but they superceeded extract of the decreet , to the first of november contra wilson and lodwick callender her spouse . ianuary . . 〈…〉 pursues a reduction ex capite inhibitionis , against iean wilson , and lodwick callender her spouse , of all dispsitions , of certain tenements of leith , made by the common author , since the inhibition . it was alleadged , for the defenders , absolvitor from this reduction , because the defenders produced an appryzing led against the common author , before the inhibition , and which is sufficient to maintain the defenders right of the lands in question ; and to exclude all rights and interest the pursuers can have thereto . it was adswered , non relevat , seing the pursuer is not insisting in a reduction of all right competent to the defenders , upon general reasons , either bearing expresly , or by equivalence that the pursuer had good right , and the defender had no right ; but the pertner is insisting specially upon particular rights called for , and upon a special reason . viz. that they were after the pursuers inhibition , so that albeit the defender have another better right than the pursuer , it will not be prejudged by this reduction , nor can it hinder the conclusion of this summonds . viz. that the dispositions are null , as being post inhibitionem . it was answered , for the defender , that his defense is relevant , for he alleadging , and producing a sufficient right to the lands whereof the dispositions are called for to be reduced , it takes away all interest in the pursuer to these lands ; and therefore he may justly thereupon exclude the pursuer from troubling the defender in this , or any other reduction , which can have no effect . it was answered , that if this ground were layed , no reduction could be sustained of any particular right , called for to be reduced , unless the pursuer did reduce all rights , that the defender could produce , which is neither just , nor conform to the custom ; because pursuers may have necessity to reduce some rights , in respect of the probation , which may be lost , as either oaths of parties , or witnesses : and yet may not be in readiness to insist against all the defenders rights , not having found out theirs , or their authors progress , but the lords may reserve the other rights , seing their is no possession , or other effect craved , but only declaratoria juris . the lords , in respect the defenders were very poor , and their case favourable , ordained the pursuer to insist upon what he had to alleadge against the defenders appryzing produced , as if it had been contained in the reduction ; but it is not to be layed as a general ground , that in no case reduction may proceed , albeit it exclude not all the rights produced in the defenders person , especially , if any singularity , as to the probation appeare . george graham and jack contra mr. andrew brian . ianuary . . george grahame , as assigney by iack , having charged mr. andrew brian , he suspends , and raises improbation , wherein he insists , and craves , that the assigney may abide by the bond ; the assigney declared , that he would abide by it , as being delivered to him , as a reall true don deed , without any knowledge of his in the contrare : and offered to produce the cedent , to abide by it , who compearing . it was alleadged , that he was a bankrupt , and had a bonorum ; and therefore behoved to find caution , to appear at all the dyets of process , or to enter in prison , till the cause were discust ; or at least , that the assigney would be oblidged to produce him . the lords having considered the case , found that the● assigney was oblidged no further , then what was offered , and they found the cedent not oblidged to find caution , or enter in prison ; but that he should enact himself to compear iudicially , whensoever any point of the improbation were referred to his oath , which might infer the falshood of the writ , if confest , and that if in that case he compeared not , the bond should be improven , not only to him , but as to the assigney , inferring no hazard to the assigney , as to the criminal part , if he were not found accessory . david and andrew fairfouls contra mr. james binni . ianuary . . the bairns of the umquhil bishop of glasgow , having charged mr. iames binni to pay a merks , he suspends , and alleadges that they were minors , not sufficiently authorized , in so far as they did choose mr. iohn harper , and achmoutie and their mother to be their curators ; or any two of them , their mother alwayes being one ; so that their mother being dead , who was sine qua non , there behoved to be a new election . it was answered ; that the pupils were willing to compear , and acknowledge thir curators , as their curators which is sufficient to authorize . which the lords found relevant . laird● of milton contra lady milton . eodem die . the laird of milton pursuing a reduction of a decreet of divorce pronounced by the commissaries of edinburgh , at the instance of the lady milton his step-mother , against calderwood her last husband , upon adulterie , desired that the testimonies of the witnesses might be made privat to him , being a matter of so great importance , as tending to take away the right of the ladies jointure , disponed be her husband to this milton . the lords refused the desire , but ordained the clerks to give a note , expressing the names , designations , and the preambulatory questions in the depositions , as their age , married , or not , purged of partial council , &c. lady bute and her husband contra sheriff of bute . ianuary . . the ladie bute and her husband pursue a reduction of a right of a part of her conjunct-fee , made in favours of her son , upon this ground , that it was done after her contract of marriage with her present husband , and publick proclamation in the kirk thereupon . it was answered . first , that once proclamation was not sufficient . dly , that it was offered to be proven , that the husband knew , that the right was granted , and yet he proceeded in the proclamation , and marriage , which behoved to proport his acquiescence and consent ; and alleadged likewise the case was most favourable : because the lady had married , unsuitably , her husbands chapland . it was answered for the pursuer , that once proclamation is sufficient , as has been several times found , and that there is no weight to be layed upon her husbands knowledge , who knew he had a remeed competent in law , whereby the deed done by his wife after the contract and proclamation would be null ; and so his going on in the marriage did not infer his acquiescence , or homolagation . and as for the favour of the cause , it is much more on the pursuers part , who being provided by her husband , to chalders of victuall , had before the contract of marriage , quite to her son ; and of the seven remaining , he had urged her to quite lib. and bolls of victual were only now in question . the lords found the reason of reduction relevant , and repelled the defense upon the husbands knowledge , for they thought , that as deeds of a wife cled with a husband , without his consent , are null , after the solemnization of the marriage , because she is then in potestate viri , & sub ejus tutelà , so that she is truely wife , after the contract of marriage , becoming publick by proclamation , and it occurring , as a doubt amongst the lords , whether the reduction ought to be sustained at the instance of the husband only , in so far as concerned his interest jure mariti , so that the right might be valid against the ladie , if she survived . the lords sustained the reason simply , at the instance of both ; and found it null as to both , as being done without her husbands consent . sir laurence oliphant contra sir james drummond . ianuary . . the lord roll● , his liferent escheat being gifted in anno . to walter stewart , he assigned the gift , and his own debt , the ground hereof , and the general declarator obtained thereupon , to sir iames drum●●mond in anno . a second donatar now insists , for special declarator ; wherein compearance is made for sir iames drummond , who craved preference upon his first gift , and on his general declarator . it was answered for the second donatar , that the first gift was simulat , and null by the act of parliament . in so far , as the donatar suffered the rebel to continue in possession untill this day , and never attained possession of any part of the lands , nor did any furder diligence , but only the general declarator in anno . so , that the rebel having now possest by the space of , or . years : the presumption contained in the act of parliament , that upon the said possession , the gift is simulat , and null , takes place . it was answered , that there is no definit time in the act of parliament , by which the rebels possession shall presume simulation , and in this ca●e , there was but few anni utiles● in so far , as the gift being in anno . declarator was obtained that same year , and in anno . judicatures ceased , and began not again till . the lords found , that the donatar suffering the rebell to possesse , or . years was sufficient to infer the presumption of simulation by the said act of parliament , and therefore preferred the second donatar . inter eosdem . ianuary ● . at pronouncing of the former interlocutor , the first donatar furder alleadged , that the presumption of simulation , by suffering the rebel to possesse , could not take place in this case . first , because the donatar himself was a lawful creditor of the rebells , whereupon there is a stronger presumption , that the gift was to his behoove , for his own satisfaction : and the act of parliament can be only meant of donatars , who have no interest , but their gift , and are not creditors . secondly , the lands were apprized , and the donatar knew he would be excluded by the appryzers . the lords repelled the first alleadgeance , and found the presumptio juris in the act of parliament was stronger then the contrair presumption , that the donatar was creditor ; because it might be his purpose to apply the gift to the rebells behove , and not to take that way , having other wayes of payment , competent : and also repelled the second alleadgeance , unlesse it were alleadged , that the apprizer had been in possession ; so that there had not been , or . years , in which the rebel had possest ; and that if the appryzing had attained possession at that time , it would have excluded the donatar : but seing it was offered to be proven , that the rebel possest for , or . years , which was contrair to the alleadgeance of the apprizers possession of the hail . they adhered to their former interlocutor . elizabeth broun contra john scot. eodem die . there being an infeftment feu granted , of the lands of inglistoun , as principal , and of the lands of fingland , in warrandice thereof long agoe , and infeftment taken of both principal , and warrandice lands in on seasine , registrat in the registers seasines , since the year . thereafter the warrandice lands were disponed to the earl of traquair , and he , being publickly infeft , gave a subaltern infeftment to his vassal , who assigned iohn scot to the mails and duties ▪ who having arrested , insisted to make forthcoming : and likewise elizabeth broun , having after the eviction of the principal lands , arrested the rents of the warrandice lands , insists to make the same furthcoming to her . it was alleadged , that the original infeftment whereupon the said elizabeth brouns right is founded , is a base infeftment , and as to the warrandice lands never cled with possession , and the earl of traquairs right , whereon iohn scots right is founded , is a publick infeftment holden of the king , which is alwayes preferred to a base infeftment without consideration , whether the publick infeftment has attained possession , or no , or how long , but much more in this case , where the publick infeftment has attained possession , not only by year and day , but many years : and therefore is directly in the case of the act of parliament . cap. . preferring publick infeftments to prior base infeftments , not cled with possession . it was answered , that base infeftments are of themselves valid , and before the said act of parliament , the first infeftment made always the best right , whether it was holden of the disponer , or of his superiour , but that act of parliament is correctory of the common-law , and feudal custom , which by the act it self , appears then to have been constant , and is only altered by the statute , upon the presumption of fraud , which is clear , both by the title against double fraudful alienations , and by the narrative , that diverse persons after they have given privat state and seasine to their bairns , or friends ; do thereafter give for causes onerous , infeftment to other persons , and therefore such onerous posterior infeftments , if they attain possession year and day , are preferred to the said privat infeftments ; but in this case , there is no presumption of simulation . dly . by several decisions alleadged and produced , it is clear , that the lords did prefer base infeftment of annualrent to posterior publick infeftments of propertie , which interveened before the next term ; so that the infeftment of annualrent could not attain possession ; but if base infeftments without possession , were unvalid rights ; the lords could not have found so . dly . the lords have allowed indirect , and interpretative possession to be sufficient , not only in the case when liferents are reserved , that thereby the liferenters possession is the feears , though he never possest himself , but even when liferents are not reserved ; but that the base infeftment is thereby excluded from possession : so base infeftments granted to wyfes are preferred to posterior publick infeftments , though the wyfes do not , nor cannot possesse , during the husbands life , yet the husbands possession is counted the wifes possession , and if a person infeft by a base infeftment should pursue for mails , or duties , or removing ; and were excluded by a prior liferent , constitute by the pursuers author● though not reserved in his right ; that very action would be sufficient to validat the base infeftment without possession . thly , whatever might have been alleadged , before the act of parliament . for registration of seasines , there is neither law , nor favour since , for posterior acquirers , who might have known the prior infeftments . and therefore in infeftments of warrandice lands , the possession of the principal lands is accompted possession of the warrandice lands ; neither is there any ground to oblidge a person who takes a feu of lands , to demand a more publick infeftment of the warrandice lands , then of the principal . it was answered , that albeit the narrative of the statute mention fraudful alienations , yet the dispositive words are general , that wherever an infeftment hath been publick , by resignation , or confirmation , and hath attained possession year and day , the same shall exclude any prior base infeftment , attaining no possession , and if the said act were only to be measured by fraud then if it could be alleadged , and astructed , that the first infeftment , though base , was for a cause onerous , and without fraud , it should be preferred ; which yet never hath been done . and for the practiques , they meet not this case , nor the act of parliament , because the posterior publick infeftment had attained no possession . it was answered , that now consuetude had both interpret and extended the foresaid act ; for thereby posterior publick infeftments , though they be not for cause onerous , or cled with possession year and day , are ordinarily preferred contrair to the tenor of the statute , and base infeftments , retenta possessione , where the obtainer of the infeftment is negligent , are accounted simulat presumptione juris , & de jure but where there is no delay , nor ground of ●imulation , the base infeftment is preferred , whether the posterior publick infeftment attain possession for year and day , or not . the lords having heard this case at length , and debated the same accuratly amongst themselves , in respect they found no preceeding decision , whether base infeftments of warrandice , where there was possession of the principal lands were valid , or not ; against posterior publick infeftments . they found this base infeftment of warrandice valid against the posterior publick infeftment . the infeftment in warrandice being simul with the principal , and not ex intervallo , and being after the act of parliament . but did not decide the case to be of generall rule for warrandice , ex intervallo before the said act. grissell seatoun and laird of touch. contra dundas . ianuary . . grissall seatoun , and the laird of touch younger her assigney , pursues dundas , as charged to enter heir to mr. hendrie mauld , for payment of a bond of merks granted to the said grissall , by the said mr. hendrie her son. it was alleadged that the bond was null , wanting witnesses it was replyed , that the pursuer offered him to prove it holograph . it was duplyed , that albeit it were proven holograph , as to the body , yet it could not instruct its own date to have been any day before the day that mr. hendrie died , and so being granted in lecto aegritudinis , cannot prejudge his heir whereupon the defender has a reduction . it is answered , that the reduction is not seen , nor is there any title in the defender produced as heir . it was answered , that the nullitie as wanting witnesses , was competent by exception , and the the duply , as being presumed to be in lecto , was but incident , and was not a defense , but a duply . the lords repelled the defense upon the nullitie of the want of witnesses in respect of the reply and found the duply not competent , hoc ordine , but only by reduction , and found there was no title produced in the reduction . executors of william stevinson contra james crawfoord . ianuary . . the executors of william stevinson , having confirmed a sum of . and odd pounds due by bond , by iohn ker , to the said william , and also by iames crawfoord , who by his missive letter , became oblidged to pay what bargain of victual should be made between the said iohn ker , and iohn stevinson for himself , and as factor for william stevinson . and subsums , that this bond was granted for a bargain of victual . it was answered , that albeit this bond had been in the name of william stevinson , yet it was to the behove of iohn stevinson his brother , who having pursued upon the same ground , the defender was assoilzied , and that it was to iohns behove alleadged , first , that iohn wrot a letter to his brother william , to deliver up his bond , acknowledging , that it was satisfied , and that iohn having pursued himself , for the other bond granted in place of this , the said umquhil william stevinson compeared , or a procurator for him , before the commissars , and did not pretend any interest of his own ; neither did william , during his life , which was ten years● thereafter , ever move question of this bond , nor put he it in the inventar of his testament , though that he put most considerable sums therein . it was answered . . that the presumptions alleadged , infer not that this bond was to iohn stevinsons behove ; because , by iames crawfoords letter , there is mention made of several bargains of victual , both with iohn and william : so that the bond , and pursuite at johns instance might be for one bargain , and at williams , for another , especially , seing the sums differ . dly , writ cannot be taken away , by any such presumptions . it was answered , that if the defender james crawfoord had subscribed this bond , it could more hardly have been taken away by presumptions , but he hath not subscribed the bond , but only his missive letter , which is dubious , whether it be accessory to this bond , or if that bond was for this bargain , and therefore such a writ may well be ●lided , by such strong presumptions . the lords found the presumption relevant , and that they instructed , the bond was to johns behove , and therefore in respect of the ahs●lvitor at crawfoords instance , they assoilzied . william dick contra sir andrew dick. january . . william dick pursues sir andrew dick his father , for a modification of his aliment , whereupon the question was , whether sir andrew dick himself being indigent , and having a great family , of smal children , and the pursuer having been educat a prentice , whether the pursuer should have a modification . the lords considering the great portion the pursuers mother brought , and that he was a person of no ability to aliment himself by his industrie , decerned sir andrew to receive him in his house , and to entertain him in meat and cloath , as he did the rest , or else two hundred merks , at sir andrews option . james crawfoord contra auchinleck . january . . the heirs of lyne , of umquhile sir george auchinleck of balmanno being provided to a portion payable by the heirs male , did thereupon charge the appearand heir male , and upon his renounciation to be heir , obtained decreet cognitionis causa , after which that appearand heir dyed , and the decreet being assigned to iames crawfoord writer , he now insists in in a summons of adjudication , containing a declarator , that he having charged the next appearand heir , to enter to the last appearand heir against whom the decreet cognitionis causa was obtained , that that decreet should be transferred against him , and it should be declared , that the adjudication should proceed against the next appearand heir . it was alleadged , for the defender , that the former appearand heir having dyed before adjudication , and so the diligence being incompleat , there could be no process thereon , till this defender were again charged to enter heir to the first defunct , especially , seing he had annum deliberandi competent to him , of the law which would be taken from him , if this order were sustained , and as an appearand heir , charged , though the dayes of the charge were run before his death , the same would be void , if no decreet had followed thereupon : and the obtainer behoved to obtain his diligence thereupon renewed , so it ought to be in this case . it was answered , the case was not alike , for here there is a decreet obtained upon the heirs renounciation ; and there is no reason to put the creditor to do diligence again , especially now , since the late act of parliament , whereby , if he get not adjudication within a year , he will be excluded , and there are other appryzings already deduced . the lords sustained the process , hoc ordine , with this provision , that if this appear and heir entred , and infeft himself within year and day , the adjudication should be redeemable to him within the legal reversion of . years , by which , neither the creditor was prejudged of his diligence , nor the heir of his priviledge . lord rentoun justice clerk contra fewars of coldinghame . eodem die . my lord rentoun , as being infeft in the office of forrestrie , by the abbot of coldinghame , containing many special servitudes upon the whole inhabitants of the abbacie , as such a dutie , out of waith goods , and out of all timber cutted in the woods of the abbacie , with so many woods , h●ns and a threave of oats , out of every husband land yearly ; pursues declarator of his right , and payment of the bygones , since the year . and in time coming ; both parties being formerly ordained before answer , to produce such writs , and rights , as they would make use of ; and these being now produced , the pursuer insisted . prim● loco for declaring his right as to the threave of oats . it was alleadged , for the defenders , absolvitor , because they had produced their fews granted by the abbots of coldinghame , prior to the pursuers infeftment , free of any such burden . it was answered , the defense ought to be repelled , because the pursuer has not only produced his own infeftment , but his predecessors , and authors infeftments , and his progresse to them . viz. the infeftment granted to david evin , of the forrestrie , containing all the duties a foresaid , which is before any of the defenders infeftments produced . it was duplyed for the defender , that the infeftment granted to the said david evin is no original infeftment , but bears , to be granted on his mothers resignation , and has no special reddendo , but only relative to the former infeftments : and therefore , unless the former infeftments were produced , or it were instructed , that the resigner had right , the infeftment upon resignation can operat nothing , especially never being cled with possession , as to the threaves of oats in question● for there is great odds betwixt infeftments granted by kirkmen , who are but administrators of the benefices , and others , who have plenum dominium , so that infeftments upon resignation of kirkmen are to be understood to confer no more right than the resigner had , and not to constitute any original right where there was none before , in the same way , as infeftments granted by the king , upon resignation , are but periculo petentis , and give no right further then the resigner had , even against the king. it was answered , for the pursuer , that his reply stands relevant , and he produces sufficiently to instruct his predecessors right ; for there is no law nor reason to compell parties to produce the old original feus granted by kirkmen , but infeftments upon resignation are sufficient , neither is the case alike , as to the king , and kirkmen , because things passe not by the king ex certa scientia , which no other can pretend ; but in this case , declaring a right granted by an abbot , with consent of the convent ; it must be considered what made a right , the time that it was granted , when there was no more required then his concession , with consent foresaid , which is sufficient against him , and his successors , neither can they pretend , that such grants are salvo jure suo . and if in matters so ancient , original infeftments from kirkmen behoved to be produced , that neither precepts of clare constat , nor infeftments upon resignation were sufficient ; few rights of kirk-lands in scotland , would be found valid . the lords repelled the defense , in respect of the reply , and found this infeftment upon resignation sufficient . iohn and ioseph heriots contra james fleming messenger and cautioners . january . . john and joseph heriots having obtained decreet before the lyon , against james fleming messenger , and his cautioners , depryving the messenger upon malversation ; in so far , as being imployed to execute a caption , he had taken the debitor , and had denounced , and appryzed his lands , and suffered the debitor to escape , and would not subscribe the decreet of appryzing , whereupon he was depryved , and decerned to pay . merks , conform to the act of parliament . cap. . and both he , and his cautioners were decerned to pay the sum , as damnage , and interest to the pursuer . they suspend , and alleadge , that the decreet is null , in so far as it was pronounced by the lord lyon , without the concourse of the heraulds , which is required by the said act. dly , albeit the lyon be impowred to deprive messengers by the said act , yet their cautioners are not under his jurisdiction , nor the damnage , and interest of parties by messengers malversation , which is only competent to the judge ordinary . it was answered to the first , oppons the decreet wherein the cautioners compeared , and so acknowledged the lyons jurisdiction as he then sat , likeas the decreet it self bears to be by the lyon , with the heraulds . to the second . the cautioners having enacted themselves in the lyons books , they have made themselves lyable , and for the damnages , they are consequent to every jurisdiction ; and the lyons have been constantly in use to determine the same , as to this point . the lords were of different judgements , for they thought , that by the act of parliament , the lyon had no such power , but as to long custom , some thought it was sufficient to give that power , and there was no inconveniencie , seing his decreets might be suspended . others , thought that custome being clandestine , and without the contradiction of parties , who might voluntarly submit themselves to any authority , could not be sufficient . the lords ordained before answer , the lyons books to be produced , to see if there were such a custome , before it were decided , and how far that custome would work . christian braidie contra laird of fairney january . . christian braidie , having pursued a reduction of a disposition , ex capute inhibitionis , against the laird of fairney , of all dispositions made by john glasfoord to him , after her inhibition , he produced a disposition , holograph , wanting witnesses , of a date anterior . it was alleadged , that the holograph writ could not prove its own date , contra tertium . the lords , before answer , ordained fairney to adduce witness , and adminacles , for astructing the date , he adduced fo●● , the town clerk , who deponed he dyted the disposition , and a town officer , who saw it subscribed of the date it bears , and a third , who deponed he saw it subscribed on a mercat day , at coupar , which , as he remembred , was in march or apryl , . whereas the date bears the first of august , . but that glasfoord , when he wrot it , layed it down upon the table beside himself , and saw it not delivered , and it being alleadged , that the first of august . fell upon a sunday . the lords considering , that infeftment was not taken upon the disposition for three years , and that there was no witnesses deponed upon the delivery , found the witnesses adduced , not to astruct the date of the disposition , and therefore reduced the same . clappertoun contra laird tarsonce . eodem die . clappertoun raises a declarator against tarsonce , for declaring an appryzing at his instance , against the pursuer , to have been satisfied within the legal , by payment of the sums by the debitor , or by intromission with the mails and duties , either within the seven years of the first legal , or within the three years thereafter , during which , by the late act of parliament , appryzings not expired in anno . were declared redeemable , or by sums received from such as bought from the appryzer , a part of the appryzed lands . it was alleadged absolvitor from that member , of satisfaction by the intromission during these three last years ; because the act of parliament does not expresly prorogat the reversion , but declares the lands redeemable within three years ; but does express nothing to whom the mails and duties shall belong , which cannot be imputed against the appryzer , to satisfie the appryzing , because he enjoyed them as his own , the apprizing by the law then standing , being expyred ; & bona fide possessor facit fructus consumptos suos , and therefore a subsequent law cannot be drawn back , to make him compt for that which he might have consumed the more lavishly , thinking it his own . it was answered , that appryzings were odious , being the taking away the whole right of lands , for a sum without proportion to the true value ; and therefore all acts retrenching them , ought to be favourably interpret , especially where the appryzer gets all his own ; and therefore the act declaring them redeemable , must be understood in the same case as they were before , and that was either by payment , or intromission . the lords repelled the defense , and sustained the declarator , both as to payment and intromission ; and as to the sum , the appryzer got for a part of the land sold by him irredeemably after the seven years legal was expyred . and seing the acquirer of that right was called ; they found it also redeemable from him upon payment of the pryce payed for it , cum omni causa , and he to be comptable for the rents , unless the pursuer would ratifie his right , as an irredeemable right ; in which case the price should be accounted as a part of the sums appryzed for lord rentoun contra feuars of coldinghame . eodem die . the lord rentoun insisting in the declarator of his right of the office of forrestry , and of a threave of corn with the fodder , whereof mention is made , ianuary . the defenders proponed a second defense , viz. that the pursuer shewed no sufficient progress from david ellen : but only an infeftment granted by ianet ellen , davids daughter , and so the pursuers goodsir upon ianets own resignation ; and albeit there was a precept of clare constat , produced by the abbot in favours of ianet , yet no seasine followed thereupon ; so that davids infeftment was not established in the person of ianet ; and consequently could not belong to this pursuer , and the defenders having gotten their fews immediatly after davids right free of this burden ; the right could not be declared , till it were established in the pursuers person : and if he should now infeft himself , the interruption on the act of prescription upon the summons , lybelling upon davids right , and the progress produced from david , would fall . it was answered , that the abbot having granted the infeftment to ianet , upon her own resignation ; yet bearing to be expresly to her , as heir to david : it was equivalent to a precept of clare constat , which does not necessarly require the ordinar form , but a charter infe●ting such a person , as heir to such another , who was before infeft , would be as valide ; so that in this infeftment of ianets , all being materially included to establish davids right in her person , she being acknowledged heir to david , albeit it be upon her own resignation , utile per inutile non vitiatur . the defenders further alleadged absolvitor , because by several acts of parliament , infeftments of kirk-lands before the reformation , are required to be confirmed by the pope , or the king thereafter . ita est , this is confirmed by neither before the feuers right : and by another act of parliament , it is declared , that the first confirmation , with the last feu , shall be preferred . ita est , the defenders has the first confirmation . it was answered , that no law , nor act of parliament , required confirmation of an office ; neither was any confirmation absolutely necessar before that act of parliament ; but the kirk-men might always have feued without diminution of the rental of the lands , as they were the time of the feu ; but that act was made , in regard that at the time of reformation , the kirk-men being out of hopes of preserving of monasteries , and kirk-lands , did feu them to their nearest friends ; and therefore the foresaid act , as being correctory of the common law , ought not to be extended to any thing , but what is exprest in the act , which is only feues of kirk-lands ; and so would neither extend to an office , as a baillirie , forrestrie , &c. nor yet to a pension , or annualrent : neither would it extend to infeftments , by kirk-men , ward , such as most of the infeftments of this abbacy , and many others are . and seing confirmation was not requisit , but the feu it self was sufficient alone , the last act preferring the first confirmation , takes no place , which can only be understood where confirmations are necessar . it was answered for the defenders , that albeit an office requires no confirmation , where there is nothing given but the office , and casualities thereof ; yet where there is a burden upon lands given therewith , such as this threave of oats out of every husband-land , being far above the proportion of a suitable fee for the office , there being above . husband-lands in the abbacie , and some forrester-lands following the office , besides other casualities , confirmation is necessar , or else the abbots might have eluded the law , and exhausted the benefice . it was answered for the pursuer , that he oppones the acts of parliament , requiring only confirmations of kirklands ; and albeit the duties , of this office affects the lands nihil est , for if the abbay had thirled the lands of the abbacy to a miln without the abbacy : for a thirled duty of a far greater value then the duties of this office , the constitution of that thirlage required no confirmation . the lords sustained the pursuers progress , and repelled the first alleadgence , and also repelled the last alleadgence , and found no necessity of confirmation of the office , and duties thereof aforesaid , whether the samine were holden feu , or ward : but did not cognosce , whether the same was feu , or ward , &c. albeit that was contraverted : neither whether infeftments of kirk-lands , holden ward , needed confirmation or no. ●contra earl of kinghorn . ianuary . . 〈…〉 having pursued the earl of kinghorn , upon a bond granted by his father . he proponed improbation , by way of exception , which was sustained , and a term assigned to prove , and that same term to the pursuer to bide by his bond. the defender supplicat , that seing the act was not extracted , albeit the term was come , that he might have yet liberty to propone payment . it was answered , he could not , because exceptio falsi est omnium ultima , after which no other could be proponed , much less after the term was come , and the pursuer come to bide by the write . yet the lords sustained the defense of payment . colonel james montgomery and his spouse contra steuart . ianuary . . margaret mcdonald and colonel iames montgomery her spouse , pursue a declarator against steuart , oye and appearand heir to umquhil sir william steuart , to hear and see it found and declared , that umquhil dam elizabeth hamiltoun , spouse to umquhil sir william , had right to certain bonds and house-hold plenishing from sir william , and that the said margaret had right thereto , from the said dame elizabeth , by her assignation , and that the sums , and goods were moveable , and thereby the assignation granted thereto , albeit on death-bed , was valid . it was condescended on , that the bonds were moveable by a charge of horning . it was answered , that the charge was but against one of the cautioners , which was not sufficient to make it moveable . the lords repelled the alleadgence . eleis of southside contra mark cass of cockpen : eodem die . eleis of southside pursues cass , as heir to mr. richard cass , or as being charged to enter heir to him . compearance is made for cockpen , who was a creditor to the defender , and had appryzed his lands ; and alleadged no process , because the pursuer pursues as assigney ; the assignation being his title , is posterior to the charge to enter heir , or summons which are raised , not in the cedents name , but in the assigneys . it was answered for the pursuer , that cockpen could not object this , because he was curator to the pursuer , and had appryzed the lands , and proponed this alleadgence of purpose , to exclude this pursuer , from coming in within year and day , because , it this summons were cast ( the defender being now out of the countrey ) before a new charge to enter heir , could proceed upon . dayes , and citation upon . dayes , and the special charge upon . dayes , the year would elapse . it was answered , that cockpen had never acted as curator , and that this summons was raised by the pursuer himself , after his majority , who was major more then a year ago . it was answered , that the pursuer had but very lately recovered his writs from his curators , though he used all diligence , and was forced to transume against some of them . the lords sustained the summons , in respect cockpen had been curator , and so near the time of minority . earl of eglingtoun contra laird of cuninghame head . ianuary . . the earl of eglingtoun pursues the laird of cuninghame-head for the teinds of his lands , conform to a decreet of valuation . the defender alleadged absolvitor , because he bruiked by vertue of a tack , at least by tacit relocation , which must defend , ay and while the famine be interrupted by inhibition , or process . it was replyed , the pursuer produces inhibition , and craves only the valued duties for the years thereafter . it was answered , the inhibition is direct to messengers at arms , and is only execute by a sheriff in that part . it was answered , that it was sufficient , seing the letters bore messengers , sheriffs in that part . the lords found the inhibition sufficient , to interrupt the tacite relocation . iean crichtoun and mr. iohn eleis her husband contra maxwel of kirk-house . eodem die . jean crichtoun being served to a terce of certain lands belonging to her first husband maxwel of kirk-house , pursues for mails and duties . it is alleadged absolvitor , because the pursuer hath a competent joynture , more then the third of her husbands estate , as then it was ; and a provision of conquest : and albeit it be not expresly in satisfaction of the terce ; yet it is but a minute , bearing to be extended , and there is a process of extension thereof depending : and therefore it ought to be extended with such clauses as are ordinar in such cases , and this is most ordinar , that competent provisions use to be in satisfaction of the terce . it was answered , that the extension could not be with alteration of any substantial point , such as this , but only as to procurators of resignation , precepts of seasine , &c. and to show that it was not kirk house , his meaning , that the infeftment should be in satisfaction of the terce ; the infeftment it self produced , being extended in ample form , does not bear to be in satisfaction . the lords repelled the defenses , and found the terce competent in this case . colonel james montgomery contra steuart . eodem die . in the declarator betwixt these parties mentioned the . day instant . it was alleadged that the plenishing , and moveables could not be declared to belong to the pursuer , by vertue of dam elizabeth hamiltouns disposition , in so far as concerns the moveable heirship , in respect it was done on death bed , and could not prejudge the defender , who is heir , even as to the heirship-moveable . it was answered , that the said dam elizabeth being infeft neither in land , nor annualrent in fee , could have no heirship . it was answered , that her husband and she were infeft in certain lands by hoom of foord , which were disponed to her husband ▪ and her in conjunct-fee● and to the heirs of the marriage , which failzing , to whatsoever person the said sir william should assign , or design . and true it is he had assigned that sum to his lady , whereby she had right of the fee , and so might have heirship . the lords found that this designation made the lady but heir appearand , or of tailzie , whereupon she was never infeft : and by the conjunct-fee , she was only liferenter ; and that the assignation to the sums and right , gave not her heirs any heirship moveable . heugh dollas contra frazer of inveralochie . ianuary . . sir mungo murray having by the earl of crawfords means , obtained from the king a gift of the ward , and marriage of frazer of streichen his nephew , he did assign the gift to mr. iames kennedy , and he to heugh dollas , before it past the scals ; and at the time that the gift was past in exchequer , the same was stopt until sir mungo gave a back-bond , bearing , that he had promised at the obtaining of the gift , to be ruled therein at the earl of crawfords discretion , who by a declaration under his hand , declared that the gift was purchast from the king , for the minors behove , and that only a gratuity for sir mungo's pains , was to be payed to him ; and that the earl declared , he allowed sir mungo . merks . there was a second gift taken in the name of sir william purves of the same ward , and marriage . heugh dollas pursuing declarator of the double avail of the marriage , because there was a suitable match offered , and refused . compearance was made for sir william purves ▪ and the lord frazer his assigney , who declared that their gift was to streichans behove , and alleadged that the first gift could only be declared as to . merks . contained in the earl of crawfords declaration , because of sir mungoes back-bond , the time of passing of the gift . it was answered , first ; that sir mungoes back-bond , and the earl of crawfords declaration , could not prejudge the pursuer , who was a singular successor to sir mungo ; especially , seing it is offered to be proven , that the gift was assigned , and intimate before the back-bond : after which , no writ subscribed by the cedent could prejudge the assigney . it was answered , that the said assignation being of the gift , when it was an incompleat right , and only a mandat granted by the king , could not prejudge the back-bond , granted at the time the gift past the exchequer , and seals ; for then only it became a compleat right , and notwithstanding of the assignation , behoved to pass in the donatars cedent ; his name ; so that his back-bond then granted , and registrat in exchequer , behoved to affect , and restrict the gift , otherways all back-bonds granted to the thesaurer , and exchequer , might be evacuat by anterior assignations . it was answered ; that this back-bond was granted to the earl of crawford , then , but a private person , and hath not the same effect , a● a bond granted to the thesaurer . the lords found this back-bond granted at the passing of the gift , and registrat in the books of exchequer , to affect the said gift , and therefore restricted the declarator thereto . in this process it was also alleadged that the first gift was null , bearing the gift of the ward , and marriage to be given upon the minority of streichen , and the decease of his father ; and the second gift buire , to be upon the minority of streichen , and the decease of his goodsire , who dyed last infeft , his father never being infeft . it was answered , that the designation was not to be respected , seing the thing it self was constant , and that the fathers decease , albeit not infeft , was the immediate cause of the vaccation ; seing the oye could have no interest , until the father , though not infeft , were dead . the lords forbore to decide in this , seing both parties agreed that the . merks should be effectual , so that it was needless to decide in this ; which , if found relevant , would have taken away the first gift wholly . colonel cuningham● contra lyll . feb. . . in a competition between colonel cuninghame and lyll , both being arresters , and having obtained decreets , to make forthcoming in one day ; and colonel cuninghams arrestment being a day prior , he alleadged he ought to be preferred , because his diligence was anterior , and his decreet behoved to be drawn back to his arrestment . it was answered for lyll , that it was only the decreet to make forthcoming , that constitute the right ; and the arrestment was but a judicial prohibition , hindering the debitor to dispone , like an inhibition ; or a denunciation of lands to be appryzed , and that the last denunciation , and first appryzing would be preferred : so the decreet to make forthcoming is the judicial assignation of the debt , and both being in one day , ought to come in together . it was answered , that in legal diligences prior , tempore est p●tior jure , and the decreet to make forthcoming is declaratory , finding the sum arrested to belong to the arrester , by vertue of the arrestment : and as for the instance of appryzings , the first denunciation can never be postponed , unless the diligence be defective ; for if the first denuncer take as few days to the time of the appryzing as the other , he will still be preferred . the lords preferred the first arrester , being equal in diligence with the second . contra mr. john and henry rollocks . eodem die . in an exhibition of writs , it was alleadged that mr. iohn and henry rollocks , being advocat ; and agent in the cause , was not oblieged to depone in prejudice of their clients , or to reveal their secrets ; but they ought to pursue their clients ; for a servant , factor , or person intrusted with the custody of writs , ought not to be examined in prejudice of their constituent , unless it were as a witness . it was answered , that their client was called . in respect whereof , the lords ordained the defenders to depone concerning the having of the writs . fodem die . an executor dative , ad omissa & mala appretiata , pursuing the principal executrix , and referring the goods omitted , and prices to her oath : she alleadged that she had already deponed at the giving up of the inventar , and could not be oblieged to depone again . the lords ordained her to depone , seing she might have intrometted after , and more might have come to her knowledge of the worth of the goods , or a greater price gotten therefore . arch-bishop of glasgow contra mr. james logan . eeb. . . the arch-bishop of glasgow pursues a declarator against mr. iames logan , for declaring he had lost his place , as commissar clerk of drumfreis , because he had deserted his place , and gone out of the countrey , and because he was a person insolvent , and denunced rebel , and had lifted a considerable sum for the quots of testaments , which he had taken with him , and not payed . it was answered that the defender had his gift from the former arch-bishop , with a power of deputation , and that his place is , and hath always been served by a depute ; and therefore , neither his absence , nor his being denunced for debt , can annul his gift , or hinder him to serve by his deput . it was answered , that the principal clerk , not having , personam standi in judicio , his depute cannot sit for him , who could not sit himself , and that he being absent out of the countrey , for a considerable space , must be esteemed to have relinquished his place . the lords found the defense relevant upon the p●wer of deputation , which they found not to be annul●e● by his absence , or denunciation , sine crimine . livingstoun contra begg . eodem die thomas begg having granted a bond to livingstouns his wife , bearing , that in respect he thought it convenient that they should live a part , he oblieged him to pay her a certain sum of money yearly for her aliment , and oblieged him never to quarrel , or recal that obligation , being charged thereupon , he suspends on this reason , that it was donatio inter virum & uxorem , and so he might recal the same , and now offered to cohabite with his wife , and aliment her according to his means . it was answered , that he had renunced that priviledge , in so far as he had oblieged himself , never to recal , or come against this obliegment . it was answered , that though he had expresly renunced that priviledge , yet the renunciation was donatio inter virum & uxorem , and he might therefore recal , and come against both . the lords found the reason of suspension , and reply relevant in time coming : but not for the bygone time ; during which , the wife had actually lived a part , and alimented her self . laird of dury contra the relict and daughter of umquhil dury his brother . eodem die . dvry being served tutor of law to his brothers only daughter , pursues her mother for delivery of her to be educat by her tutors . it was alleadged , that he was to succeed her , and so could not have the custody of her person . . that she was but nine years old , and her mother unmarried , and so she was the fittest person to educate her ; especially seing she was the only living child of many , and so not likely to be lively . it was answered , that the tutor insisted not for the custody of his pupil himself , but condescended on several persons , with whom she might be educate ; and alleadged , that she having . pounds of provision out of the family ; there was no reason she should be keeped by her mother , and disposed of at the pleasure of her mothers friends . the lords decerned the child to be delivered to mr. alexander gibson , one of the clerks , to be educate with him : but superceeded execution of the sentence , till whitsonday come a year , that she might be delivered to her fathers friends , before she was eleven years old , and could have any thoughts of marriage . watson contra fleming . eodem die . there being an infeftment of annualrent granted out of lands , and teinds , and an assignation to the teind duties , in so far as extended to the annualrent . the teinds , and lands were thereafter appryzed from the common author , before the annualrenter had obtained possession by his real right , of the annualrent , but only by his assignation to the teind duties . it was alleadged by the appryzer , that the assignation to the teind duties could give no longer right then the property thereof remained in the cedents person ; which ceasing by the appryzing , the assignation ceased therewith , as is ordinarly , and unquestionably sustained in assignations to mails and duties of land. it was answered , that there was great difference betwixt lands , which require infeftment to transmit the same , and teinds which require none , but are conveyable by an assignation ; for if this had been by an assignation to the tack of teinds , protanto , it would have been unquestionably valid ; and therefore being an assignation to the teind duties , it is equivalent as a disposition to lands , which would carry the right of a reversion , though not exprest , and though there were no more to dispone but the reversion only . it was answered , that if the assignation had been to the teinds : that is to the right , or if it had been to the full teind duty in the tack , or of certain lands ; then the case might have been dubious ; but being , not of the teind duties of any particular lands , but out of the first and readiest of the teinds of several lands , it was not habilis modus . which the lords found relevant . town of glasgow contra town of dumbarton . eodem die . there being mutual declarators , one at the instance of the town of dumbarton , for declaring that they had right by their infeftments , that all ships coming within clyde , should make their entries at dumbarton , and that they should pay anchorage , for all ships anchoring in the river of clyde , being within their infeftment , even from the water of leven , to the head of lochluny , within which bounds is the ordinar station of new-wark , potterig and inchgrein , and above which , no vessel above . tuns goes up clyde ; and likewise for the measurage , whereby all ships casting anchor there , took the firlots of dumbarton and measured with , payed . pennies of the boll therefore ; and weightage , which is a duty for their weights : and also tunage , being so much out of every tun of the burden of each ship. and on the other part , glasgow pursues declarator of their liberty to traffick freely in the river of clyde ; and to make entry at their burgh , and to be free of any such burden at dumbarton . the lords before answer having ordained either party to adduce such writs , and witnesses as they will make use of in the cause , for instructing these burdens , the possession thereof , interruptions of the same , and liberty therefrom ; which all being adduced , dumbarton produced their original charter , erecting them in a free burgh , by king alexander , in anno . and another charter also by king alexander , repeating their priviledges of burgh , as free as edinburgh , or any other burgh within the kingdom , cum custumiis & teloniis ; and also a charter in anno . ratifying the former charter , and particularly expressing all these burdens in question , in the novodamus thereof ; and also produced their entry books , bearing , the merchants of glasgow to have entred their ships at dumbarton , and to have taken the measures of dumbarton , for measuring their salt , and to have payed the duties thereof , and obliging themselves to make use of no others these voyages , begining at the year . and continuing till the year . in the beginning whereof , there was ordinarly one ship every year , and thereafter several ships every year . glasgow did also produce their ancient infeftments by king alexander , mentioning a prior infeftment by king william , erecting them into a free burgh , with their books of entries , of several ships , for divers years , with an interlocutor of the lords , in anno . wherein dumbarton having charged for all the duties now in question . glasgow suspended , and dumton insisted for none of these in question , but only for entries ; and the lords found , that the merchants of glasgow might either enter at glasgow , dumbarton , or any other free burgh where the kings customers were , and might break bulk there , with a contract between dumbarton and glasgow , in anno . oblieging them to concur against unfree-men , and not to break bulk upon the river , but in their towns ; and in case of any difference , six of each town to meet at ranfrew , and decide the same , and thereupon alleadged , that they being a free burgh , and having the precedence of dumbarton , both in parliament , and so acknowledged by the said contract , and enjoying equal , and free trade in the river of clyde , without any such burden , whereof no mention is made in the foresaid contract , and being charged for , in anno . there was not so much as an alleadgence of any possession of dumbartons of these dues at that time , and the entry decerned to be free at either town ; and therefore they alleadged , that their priviledge of trading as a free burgh , ought to be declared , and they assoilzied . it was answered for the town of dumbarton , that they had good right to these duties , by his majesties several infeftments , granted to them ; for the king having power to impose petty customs , not only in ports built , and preserved by industry , but in stations , and rivers , creiks and bays , as is the custom of all kings and princes , such are the customes upon the rivers of rhyne , garonnie , thaimes , and others , to all ships that anchor there , or pass that way : and whereof , there are severals in scotland , as the tunnage , due to edinburgh of all the ships breaking bulk at leith : and the petty customs of alloway , cockenie , and other places . ly . albeit the kings grant were not sufficient alone , yet being cled with immemorial , or . years possession , instructed by witnesses , and the books of entry , it is more then sufficient . it was answered for glasgow , to the first , that petty duties imposed for ports , having a mutual cause , may be appointed at any time by kings and princes ; it being free to these who are burdened therewith , to come in to that port , or not : they also appoint petty customs to be payed to any city , for goods imported , and sold there , in consideration of the upholding of their harbours , and mercats , as the tunage of the harbour of leith , or anchorage at any shore , where anchorage is casten upon the land , or any goods laid out upon the land , or where imposition for anchorage , or other dues in a river , or station , hath been approven by long custom , and acquiescence ; but where burghs royal , have not only by their priviledge of trading , but by immemorial possession , prescribed a liberty of making use of stations , without burding ; no right granted , or impetrat by any party in prejudice thereof , if it be quarrelled before prescription can take away the liberty of trading : nor is the kings gift any way to be understood , but periculo petentis : and dumbartons second charter did expresly bear , that these petty customs were due , and accustomed before ; so that the kings express meaning is , not to gift them de nova , or to impose a servitude in their favours , upon a far more eminent city then themselves . and as to the point of possession , nothing is proven thereanent , till the year . and then it is neither universal , seing more entered at glasgow , then at dumbarton ; nor is it peaceable , nor voluntar , nor is it continual , but interrupted ; and albeit it were uninterrupted , yet it is but by single persons , which cannot infer a servitude upon the burgh , and if the kings gift be periculo petentis , and be surrepticiously impetrat upon a false narrative , no possession can validat it , as no possession of it self , without a title , could infer such a servitude . the lords having considered the depositions of the witnesses , books of entry , and the hail writs produced ; they found that the alleadgence against dumbartons declarator , as founded upon their charters , without relation to possession , was not relevant , and that the first charter could not extend to these particulars , not being exprest , unless it had appeared that they had been in immemorial possession , before the second charter , and the interruption by the suspension , raised by glasgow , and the lords interlocutor thereupon● in anno . for albeit immemorial , or . years possession immediatly preceeding , might have presumed possession continually before , since the first charter ; yet they found that interruption , or suspending that particular in question , and no alleadging of possession by dumbarton then ; but on the contrair , an interlocutor , as to the liberty of entry at glasgow , takes off that prescription : and likewise they found , that there was nothing proven as to . years possession , save only . sh. . d. for the anchorage of each ship , and . d. for the use of dumbartons measures of salt , for each boll : and seing that possession was also proven to be interrupted , in that several ships of glasgow resisted , and came away free , and that they had several salt measures of their own there . therefore they found the charter not validat by . years possession uninterrupted , and assoilzie from dumbartons declarator , and declared upon glasgows declarator of liberty . earl of panmuire contra parochiners . feb. . . the earl of panmuire having right to the abbacy of aberbrothick , pursues for a part of the teinds thereof . it was alleadged absolvitor , because they had possest their land . years free of teind to any body : and by the general act of prescription , all right prescribes , not pursued within . years , and so doth the right of this teind . it is answered , that the right of teind is founded on law , and not upon any particular , or privat right ; and therefore , albeit in the case of competition of private parties , pretending right to teinds . one right may be excluded by another ; yet the teinds themselves must always be due , except where the lands are decimis inclusis , and did belong to priviledged church-men of old , such as the cistertian order , or templars , manse , or gleibs . the lords repelled the defense , in respect of the answer , for they thought , albeit the bygones of the teind preceeding the . years , might prescribe ; yet the right of teind could not , more then customs could prescribe , if they were neglected to be exacted for fourty years , or a feu-duty . ker contra hunter and tennents of cambo . feb. . . the tennents of cambo raise a double-poinding against ker , and hunter , both being infeft in annualrents , base , where the last base infeftment within a month of the former , being cled with possession , by a decreet of poynding the ground , a year after both , and no diligence on the first . the lords preferred the last infeftment , as first cled with possession . it was further alleadged , that this annualrenter had accepted a part of the land in satisfaction of his annualrent . it was answered , that there was write there required , viz. a renunciation of the rest , and till that was done est locus penitentiae . the lords considering the case , found that if the promise were only to restrict the annualrent to a part of the land burdened therewith , it was pactum liberatorium , and there was not locus penitentiae ; but if it was a promise to accept other lands , or the property of a part of the lands burdened , there was locus penitentiae , till the mutual rights were subscribed , whereby the one party disponed the property , and the other the annualrent . the heretors of johns miln contra the feuars . feb. . . there being an old thirlage of a paroch , which was a part of the barony of dumfermling , to iohns miln , the feu of the miln being first granted by the abbot of dumfermling , and the feu of the land thereafter : there is a decreet in anno . pronounced by the chancellor , as lord of the regality , decerning all the feuars to pay the five and twenty curn of all grains that they brought to the miln , and a greater of that they abstracted . the feuar of the miln pursuing for abstracted multures , and for instructing the quota , producing this decreet . it was alleadged for the defenders , that they offered them to prove that , past memory of man , at least . years bygone , they have been constantly in use to pay five bolls of bear in satisfaction of all multure ; and so can be lyable for no further , they having prescribed their liberty from any further . ly . that no respect ought to be had to the decreet , in so far as it decerns a greater quantity for the corns abstracted , then for these grinded , which is without all reason ; especially seing this is but a burn miln , and not sufficient for the thirle . ly . they offer them to prove , that the miln was insufficient , the years pursued for , and no ways able to serve them , and the rest of the thirle , as being but a burn-miln , dry in summer , and not having water enough in winter . it was answered for the pursuer , to the first , that they offered them to prove , they were in possession of the multure lybelled within these . years , at least that any lesser duty was accepted by a particular paction for a time only . to the second , opponed the decreet standing , against which there has neither been suspension , nor reduction , nor any ground for the same . for its like the coming to the miln frees them from a greater quantity , for abstraction . and seing the quota is but the five and twenty curn , far below the ordinar thirle multures ; it was very reasonable , that the samine being abaited to a less quantity , they should pay a greater if they came not . as to the insufficiency of the miln , it was answered non relevat , unless it were through the default of the pursuer , or his millers , for they being astricted to a burn miln , what defect is therein , without the pursuers fault , cannot louse the restriction . the lords found the replys relevant , unless the defenders condescended upon an insufficiency , through the pursuers fault . here occurred to the lords , whether the feuars could by possession , prescrive their liberty as to a lesser multure , seing the possession of a part of the multure was sufficient to exclude prescription , as to the whole : some thought , if the multure had been a certain quota in the infeftment of the miln : possession also not of the hail , would hindred prescription of any part ; but if the infeftment of the miln , was only with the multures used , and wont , and that the speciality was but by a decreet , as the use and wont : that in that case , use and wont might change . others thought not , but in respect the pursuer insisted not on that point , but offered to prove possession , conform to the dec●eet within these . years . the lords decided not that point . here also it was alleadged , that by an act of the court of dumfermling , the defender consenting , at least present , it was enacted , that such of the defenders as could not be served , might go to other milns . the lords found this alleadgence only relevant , that it was by consent of the pursuer , or his authors , but left it to be the defenders● after production , to qualifie what way the consent was given ; but that his presence and silence was not enough . the collector of the vaccand stipends contra parochioners of mayboll , and girvane . feb. . . the collector of the vaccand stipend , having charged the heretors of mayboll , and girvane , for the stipend due by them , the year . they suspend , and produce the ministers discharges , who served these years , and alleadged they made payment bona fide , before this charge . it was answered , they were in mala fide by the act of parliament , of the last session of parliament , declaring the places of ministers , entred since . to be vacant , if they had not obtained presentation , and collation conform to the act. it was answered , that the foresaid act was not simple , but conditional , if they had not obtained presentation and collation ; and there was nothing oblieging the parochioners to enquire whether they had done that , which by the law they were oblieged to do ; but seing there was no charge against them by the collector of the vaccand stipends , and that the patron , or ordinar did not present another ; but suffered the then incumbents to preach all that year , they were in bona fide , to think that they might pay them for the time they served . it was answered , there was a decreet produced against the same ministers , for the year . and therefore they could have no right to the year . the lords found the reason of suspension relevant and proven notwithstanding of the answer ; because the decreet was not against the heretors , and was but obtained in . after they had made payment of the year , . the minister of north-leith contra merchants of edinburgh . eodem die . the minister of north-leith having pursued some merchants of edinburgh importers of herring , of dry fish , killing , and ling , at leith and new-haven , to pay twenty shilling of the last of herring , and the twentieth part of the killing and ling. it being alleadged , that such a burthen could not be allowable , because the teinds was taken where the fish was taken . ly . that it could only reach the parochioners of north-leith , not the merchants of edinburgh . and , ly . that they had frequently traded free of such a burden . the lords having ordained the pursuer to adduce evidences by writ , or witnesses , what possession they had , and the defenders what liberty they had ; and having heard the testimonies of the witnesses , with an old decreet for the same particulars , but not against the merchants of edinb●rgh , nor for dry fish , they found . years possession , proven of the said burthen , and therefore decerned . the laird of wedderburn contra wardlaw . feb. . . wedderburn pursues a reduction of a feu granted to wardlaw , ob non solutum canonem , by vertue of a clause irritant in the infeftment . the defender offered to purge , by payment at the bar , and alleadged several decisions that it hath been so allowed . it was answered , that was only the case of a reduction upon the act of parliament , declaring feus null for not payment of the feu dutie , but where there is an express clause irritant in an infeftment , that cannot be purgeable at the bar ; else such clauses should be useless , seing without these , de jure , the feu duties behoved to be payed at the bar ; or otherwise the feu annulled . the lords found , that there was a difference betwixt a clause irritant , and upon the act of parliament , and so would not admit of purging at the bar simply , unless the defender condescended upon a reasonable cause , ad purgàndam moram , and therefore ordained them to condescend . archbishop of glasgow contra commissar of glasgow . feb. . . the archbishop of glasgow pursues a declarator , or to hear and see it found and declared , that commissars ought to be persons qualified , and able to judge according to law , and that if they be not , they might be deprived by the act . empowering the bishops , then restored , to appoint able , and sufficient men , commissars in all time coming ; and by the act of restitution . whereby the like power is granted , excepting commissars nominat by the king , unless he be insufficient , or malversant : and subsumes that mr. william fleming is not sufficient , nor qualified for that place ; and also , that by the injunctions given to commissars ; mentioned in the act . there is no place for deputs , unless it were by special consent of the bishops , and craves that it may be declared , that the said mr. william may not serve by a depute . the pursuer insisted on the first member . it was alleadged for the defender , that he had his place both from the king , and bishop fairfoul confirming the same with a novo damus : and therefore , though he might have been questioned before the said ratification , and new gift ; yet now he cannot be questioned upon insufficiency , but only on malversation , whereof there is no point alleadged , nor condescended on , nor is his insufficiency qualified by any act of inorderly process , or injustice committed by him now these five years , and as bishop fairfoul , who acknowledged him to be a fit , and qualified person , by his ratification could never quarrel him upon insufficiency , neither can this bishop . ly . the defender has his place with power of deputation ; and therefore having given eight thousand merks to the former bishop for his ratification , with power of deputation , he cannot be questioned on his sufficiency , being able , per se aut per deputatum , and no act alleadged of injustice . it was answered by the pursuer to the first defense , that albeit this same bishop had admitted this commissar , upon hopes of his qualifications , yet if contrair to his expectation , it appears he is not qualified for so eminent a judicature . he may justly quarrel him of insufficiency , as well as a minister whom he ordained . ly . though the same person might not , yet his successor in office might , and is not bound to acknowledge what his predecessor did by mistake , or otherwayes to the detriment of the sea , which were in his option , without a rule , or requiring qualifications , as the naming of commissars . to the second , albeit deputs were allowable , as they are not by the injunctions , yet the principal commissar , who must regulat , and answer for them , must also be qualified , both by the act . and the exception . which enervats both the defenders gifts . the lords found that member of the lybel on the qualifications , and sufficiency relevant . my lord ley contra porteous . feb. . . my lord ley , having right by progress to the reversion of an old wodset , uses an order , and pursues declarator thereupon . the defender alleadged no declarator , because by the reversion , there is a tack to be granted , to begin after redemption , and to continue for so many years . it was answered , that tack was null , and invalide , not only by common law , as an usurary paction , giving the wodsetter more then his ordinary annualrent , but by a special act of parliament , ia. . par. . cap. . whereby such tacks taken in wodsets , to endure long time after the redemption , for the half mail , or near thereby , shall not be keeped : and as by the late act of parliament , between debitor and creditor , it is provided , that where old wodsets were granted before . when annual was at ten for ilk hundreth , the wodsetter may , upon offer of caution for the annualrent , take possession , unless the wodsetter offered himself to be comptable for what exceeds his annualrent . it was answered for the defender , that his defense stands yet relevant , notwithstanding the answer , for as to the old act of parliament , it is in desuetude , and it hath been the common custom to grant such tacks in reversions , which have still been observed , and were never quarrelled , neither are they usurary , seing the tacksman has the hazard of the fruits , and all burdens , so his tack-duty , how small soever , unless it were elusory , can be no usurary paction , more then taking lands in a proper wodset , which pay more then the true annualrent , which was never found usurary . ly . this wodset is granted since that old act , whereby the benefit thereof is totally past from . as to the new act , the clause bears expresly , that during the none redemption , or none requisition , the conditions therein shall take place , which cannot be extended to a tack , to be granted after redemption . it was answered , that the first act bears , not only a regulation of wodsets already then granted , but to be granted , bearing expresly , who takes or has taken lands in wodsets , &c. and there is nothing in the wodset to renunce the benefit thereof . as for the custom , acts of parliament are not derogat by custom of privat parties , a●quiescing in their agreements ; but the custom of the lords by current decisions . as to the last act , it ought to be drawn , ad pares casus , and the lands are not effectually redeemed , till the tack be ended . the lords found the last act no ground for annulling such tacks , but found the first act a good ground , if it were subsumed according to it , that the ●ands were set for half mail or thereby . lyon of muiresk contra gordon and others . eodem die . john lyon of muiresk , having obtained decreet of spuilzie of certain goods , against gordon and others , they suspend and alleadge the act of indemnity , that they took these goods , being under the command of the marquess of hunlly . it was answered , that the charger was in friendship with the marquels , and on his side , and so they cannot cloath themselves with the act of indemnity , as done upon hostility . ly . the act indemnifies only deeds done by command , and warrant of any pretended authority ; but here no such order is alleadged , it was answered , that orders were not given in writ , and if none get the benefit of the indemnity , , but these can shew● or prove orders , few , or none will enjoy it ; nor need the suspenders to dispute whose side the charger was on ; seing they acted by order . the lords found , that it was sufficient to alleadge that the charger was , the time of the intromission , actually in arms , and acted it with a party , being then in arms , but needed not prove their order , or the application of the goods to publick use ; but found it relevant , if it were offered to be proven by the suspenders oath , that they had no warrant , or order , or pro ut de jure , that they applyed them to their own privat use , not for any publick use . iames borthwick contra ianet skeen . feb. . . james borthwick , having obtained reduction of ianet skeens liferent-right , as a non habente potestatem , obtained payment of a terms rent before the decreet of reduction . ianet pursues for that term , and alleadges that the decreet of reduction could not be effectual till it were pronunced , albeit it bear her right to be null , ab initio , yet that is but stylus curiae . it was answered , that the tennent payed bona fide , after reduction obtained , and intimat to him , and that the lords may ex arbitrio , find the effect of the reduction , either to be asententia , litiscontestation , or a citation . in this reduction the lords assoilzied the tennent for this term , though before sentence . earl of winton contra countess of winton . eodem die . the earl of winton pursues a reduction of an agreement made by his tutors and curators with my lady , giving her a certain duty for her interest in his coal , as being minor , and laesed , in so far as by her contract , she had only right to the fourth part of the coal in his property ; now his coal for several years , has been in his feuars lands , by reservation in their rights . and also craved the bygons . it was answered , that bona fide possessor facit fructus consumptos suos , the lady by the agreement , could not compt for the years duty she had gotten . it was answered , that this holds not in the case of minority , and laesion . it was answered , that albeit minority repones , as to any principal right , yet not as to the fruits , and accrescences medio tempore . the lords reduced , but assoilzied the lady from repetition . sharp of houstoun contra glen . eodem die . glen pursues for mails and duties of some lands . houstoun compears , and alleadgesthat he has right to these lands , by an apprizing expired . it was answered , his apprizing was null , because it proceeded on four bonds , the term of payment of one whereof was not come the time of the appryzing , and so not being due , the apprizing was void , quoad totum . it was answered , the sum was due , albeit the day was not come , and so being but , plus petitum tempore , he was willing to admit the apprizing to be longer time by the double , redeemable after the legal were expired , then all the time he apprized before the hand . the lords found the appryzing void as to that sum . whereupon occurred to them , to consider whether the appryzing should fall in totum , or stand for the other bonds . and if it stood for these , whether a proportionable part of the lands appryzed effirand to the bond , whereof the term was not come , should be found free , or if the rest should affect the whole lands , as if for these only the appryzing had been led , wherein the lords were of different opinions , and recommended to the reporter to agree the parties . lady otter contra laird of otter . eodem die . laird of otter having infeft his wife in conjunct-fee , or liferent , in certain lands , cum molendinis , did thereafter build a miln thereupon , and the question arising betwixt the liferenter and the heir , who should have right to the miln ? the liferenter alleadged aedificium solo cedit . the heir alleadged , that a miln is distinctum tenementum , that cannot pass without infeftment , aud the clause in the tenendo cum molendinis , is not sufficient , not being in the dispositive clause , nor any miln built then : and he offered to make up all the liferenters damnage , by building on her ground . the lords found that the benefit of the miln belonged to the liferenter , as to the multures of all that was ground without the thirlage , but found it not to extend to lands of the defuncts , which he had thirled to the miln . john hay of knokondie contra litlejohn . eodem die . john hay pursues litlejohn for the damnage sustained by a house belonging to litlejohn , falling on the pursuers house . it was alleadged the defender was only apprizer of a liferenters right , and this behoved to lye upon the fiar , who was oblieged to uphold the liferenters house . the lords found the defender lyable , seing he possest as apprizer sixteen years , and also intrometters with the profits of the house , are liable for the damnage sustained thereby , seing both fiar and liferenter , were oblieged to uphold it , and are liable de damno . lord salton contra laird of park and rothemay . feb. . . the lord ochiltry having a disposition of the estate of salton , from the umquhil lord salton in anno . disponed the same to park gordon , rothemay and others . this lord salton having granted a bond to sir archibald stewart of blackhall , he thereupon apprized all right that could be competent to the lord salton of that estate : which right being now retrocessed to the lord salton : he pursues reduction of the lord ochiltries disposition , and of all these rights founded thereupon in consequence . the reason of reduction is founded upon an interdiction , against the lord salton , disponer , before his disposition ; and there having been a process formerly depending at the instance of umquhil sir archibald stewart , and being transferred after his death , the lords allowed the process to proceed upon the minute of transferrence , without extracting the decreet of transferrence , which behoved to include the process , and hail minuts , which could not be done for a long time , whereupon the lord salton , now insisting in the principal cause . it was alleadged , first , no process , till the principal cause were wakened : for albeit the principal cause be transferred ; yet it is but instatu quo ; and therefore being sleeping , there can be no process , till after the transferrence , there be a wakening . the lords repelled this alleadgence , and found the transferrence sufficient without any wakening . it was further alleadged absolvitor , because the pursuers title being an apprizing , the defender has an anterior apprizing , which does exclude the pursuer● ay and while it be reduced , or redeemed . it was answered , that the ground of this pursute being a reduction , upon interdiction ; the interdiction cannot be directly apprized , but only the lands belonging to the person interdicted , being apprized , all apprizers or other singular successors , coming in the place of the heirs of the person interdicted , may pursue on their rights , and thereupon reduce voluntar dispositions , made contrair the interdiction : which interdiction is not a right it self , but medium impedimentum exclusivè of another right , as an inhibition , and as a first appryzer cannot hinder a second appryzer to make use of his right , except in prejudice of the first appryzer ; so he cannot hinder him to make use of the interdiction , to take away a voluntar disposition● but prejudice of the first appryzers appryzing , as accords : and in the same way a second appryzer , or any creditor might pursue upon an interdiction or inhibition against a creditor . which the lords found relevant , and declared the pursuer might reduce this voluntar disposition upon the interdiction , but prejudice of the defenders appryzing . contra hugh mcculloch . eodem die . the laird of balnigoun being arrested in edinburgh , for a debt due to a burges , heugh mcculloch became caution for him in these termes that he should present him to the diets of process , and should make payment of what should be decerned against him , if he did not produce him , within termes of law , pendente lite , balnigoun raises advocation , and at the same diet that the advocation was produced judicially before the bailzies , heugh mcculloch also produced balnigoun , and protested to be free of his bond as cautioner : the bailzies did not incarcerat balnigoun , but refused to liberat heugh mcculloch● till they saw the event of the advocation . the cause b●ing advocat , and decerned against balnigoun , who succumbed in an alleadgence of payment . the pursuer craved sentence against him , and heugh mcculloch his cautioner . it was answered for heugh mcculloch , that he was free , because he had fulfilled his bond , in presenting ballangoun , and protest●ng to be free , albeit the bailzies did not free him , that was their fault . it was answered , that the advocation being raised , hindred the bailzies to incarcerat , because they might not proceed after the advocation ; and therefore the cautionrie behoved to stand , otherwise all acts of caution , to answer as law will , might be so elided . the lords found the cautioner free , and found that the bailzies , notwithstanding of the advocation , might incarcerat the principal party , unless he had found new caution , for seing if he had found no caution , a principio , but had been incarcerat , till the cause had been discust the advocation would not have liberat him : and whensoever the cautioner produced him iudicially , and protested to be free , he was in the same case as if he had been incarcerat , and therefore the bailzies might have detained him in prison , notwithstanding of the advocation , which did sist the cause . mcbrair contra sir robert crichtoun , alias murray . eodem die . david mcbrair pursues a removing against sir robert crichtoun , who alleadged absolvitor , because the warning was null , in so far as he being notourly out of the countrey . the warning proceeded on days , not only at the ground and paroch-kirk , but also at his dwelling-house , whereas it ought to have been on letters of supplement on days , at the mercat cross of edinburgh , peer and shore of leith . it was answered , that the act of parliament anent warning , was only on days without distinction , being out of the countrey , or in the countrey● and it was sufficient that the summons of removing upon the warning , was upon days ; because the warning at the house , was rather an intimation then a citation , which was sufficient , seing the defender had been butshort while out of the conntrey , not animo remanendi , and so had still a domicile where he was cited . the lords sustained the warning , but in respect the defender had probabilem causam dubitandi . they superceeded the execution to the next whitsonday , without any violent profits . lord borthwick contra his wodsetters . feb. . . the lord borthwick pursues an accompt and reckoning against several wodsetters , who had wodsets from him in the year . to count and reckon for the superplus of the wodset , more then their annualrent since the act of parliament between debitor and creditor , upon that clause thereof , appointing wodseters , who have proper wodsets before the year . or since before the act to compt , and be lyable for the superplus more than their due annualrent . it was alleadged for the defenders , that the pursuers had in the wodsets expresly renunced the usurpers act in favours of debitors , and all such acts made or to be made : and by the said act between debitor and creditor , there is an exception● where persons have renunced such acts. it was answered that that exception is insert in the act before this clause , in relation to wodsets , and does not relate to it , but unto the former provisions , of suspending the sums , which was also the tenor of the usurpers act , and therefore the exception of the renuncing such acts , cannot extend to the case of accounting for wodsets , which could not be thought upon , the time of the wodset , and of the renunciation ; this clause being according to common law , to hinder usury , which might have been indirectly taken by proper wodsets , though these by the custom , use not to be quar●elled . the lords repelled the defense , in respect of the reply , and found the exception not to extend to the case of wodsets . it was further alleadged for the defenders , that they were not lyable to to compt for the superplus , for all years bygone since the act of parliament , nor at all , except in the case that they had been required to quite the possession of the wodset , and security had been offered them for their money , and they had chosen rather to retain the wodset , and to compt for the superplus ; for as to all years preceeding , they were bona fide possessors , and had ground to presume that the pursuer did acquiesce in the wodset , as only proportionable to the annualrent , and it were unjust and of evil consequence , that if the granter of the wodset should forbear to offer security for years upon his offer then , the wodsetter should be oblieged to compt from the act of parliament . it was answered , that there was no inconveniency , seing the wodsetter might , if he pleased , quite the possession , and then was not comptable at all : but if he would retain the possession , he could not refuse to compt for all bygones , since the act of parliament . the lords having considered the clause of the act of parliament , found the defenders only lyable from the time of the offer of caution , and requiring the possession , and not from the date of the act of parliament , seing the clause bears , they shall have by the wodset , which looks to be future only ; and seing the wodsetters might have builded or planted for their own accommodation , and therefore might rather reain the possession then other security . ogilby contra eodem die . the like case was decided betwixt ogilby and where this was further represented , that the summonds could not be sustained , unless the offer had been made by way of instrument before the summons , yet the lords sustained the offer instantly , made to have effect ab hoc tempore , but not from the citation . it was also further alleadged for the defender , that there was now no caution offered . it was answered for the pursuer , that there needed no caution , if the wodsetter choised to retain the possession ; because the wodset it self was sufficient security . it was answered , that they were not obliged to declare their option , till caution were first offered by the granter of the vvodset , and the statute behoved to be strictly observed . it was answered , that there was here no detriment to the vvodsetter , and the granter of the vvodset might be so poor as not to be able to find caution . the lords found , in respect of the act of parliament , that caution behoved to be offered , and would not exceed the terms thereof . contra the sheriff of inverness . eodem die . 〈…〉 being pursued for theft-boot before the sheriff of inverness , upon the old act of parliament iames . bearing , that whosoever should compone with a thief , for stollen goods should be lyable in theft-boot , and punishable as the thief or robber . he raises advocation on this reason , that the act was in desuetude , and the matter was of great moment and intricacy , what deeds should be compted theft-boot , whereinto no inferiour judge ought to decide , because of the intricacy . it was answered , that the lords were not competent judges in crimes ; and therefore could not advocat criminal causes from inferiour courts , and the earl of murray being sheriff , and having sufficient deputs , both should concur in the careful decyding of the cause . it was answered , that albeit the lords did not judge crimes , yet it was competent to them to advocat criminal causes , ad hunc effectum , to remit them to other more competent unsuspect judges . the lords advocat the cause from the sheriff , and remitted the same to the iustice● because of the antiquity of the statute , and intricacy of the case . lockhart contra lord bargany . feb. . . the umquhil lord bargany being adebted in a sum of money to sir william dick , he appryzed , but no infeftment nor charge followed . thereafter a creditor of umquhil sir william dicks , appryzes , but before the appryzing , lockhart upon a debt due by sir william dick , arrests all sums in my lord bargany's hand , and pursues to make forth-coming . this lord bargany takes a right from the appryzer , for whom it was alleadged , that he ought to be preferred to the arrester , because the arrestment was not habilis modu● , in so far as sir william dick having apprized for the sum in question , the apprizing is a judicial disposition , in satisfaction of the sum ; and so it could not be arrested , unless it had been moveable by a requisition or charge . it was answered , that the act of parliament , declaring arrestment to be valid upon sums , whereon infeftment did not actually follow , made the arrestment habile , and the apprizing can be in no better case , then an heretable bond disponing an annualrent . it was answered , that the act of parliament was only in the case of bonds , whereupon no infeftment followed , but cannot be extended beyond that case , either to a wodset granted for the sum , where the property is disponed , where no infeftment had followed ; or to an apprizing , which is a judicial wodset , pignus pretorium . it was answered , that the reason of the law was alike in both cases , to abbrige the lieges unnecessar expences by apprizing . the lords preferred the apprizer . bishop of glasgow contra commissar of glasgow . eodem die . the bishop of glasgow insisted in his declarator against the commissar of glasgow ; and alleadged first , that by injunctions related to in the act of restitution . it was provided , that all commissars should reside at the place where the commissariot sat , and should not be absent , but upon necessity , and with leave of the bishop , under the pain of deposition , and that in case of the absence of the commissar , through sickness , or other necessity , or through being declined in these causes , the bishop should name a deput : from whence it was alleadged , first , that the commissar had already transgressed the injunctions , and deserved deposition for none residence , and for appointing deputs himself , not appointed by the bishop ; yea , for continuing to make use of these deputs , albeit the bishop did intimat the injunctions to him , and did judicially require the deput not to sit , and took instruments thereupon . ly . that in time coming it ought to be de●lared , that the commissar ought to reside , under the pain of deprivation , and to act by no deput , but such as were authorized by the bishop . it was alleadged for the defender , absolvitor from this member of the declarator , because the defender had his office from the king , and the late bishop of glasgow , with power of deputation . and as to the injunctions , first , they had no authority of law ; for albeit the act of parliament . related to injunctions to be made , yet it did not authorise any persons to make the same , nor is it constant , that these are the injunctions that is alleadged to be made by the bishops in anno . ly . albeit they had been then so made , they are in de●uetude , because ever since , all commissars have enjoyed their place with power of deputation , and exercised the same accordingly . ly . there is no injunction against the bishops , giving power to the commissars to deput ; for albeit the injunctions bear , that in such cases he could not give deputation ; and therefore the commissar did not wrong , to continue his deput . and it is most necssar , that the commissar should have a power of deputation , or otherwise , their office is elusory , seing the bishop may be absent , or refuse to depute any person , in case of the commissars necessary absence , and so both delay justice to the leidges , and evacuat the gift . it was answered for the pursuer , that first , the injunctions were commonly received and known through all the kingdom , and are registrat in the commissars books of edinburgh , being the supream commissariot , and according thereto , the lords have decided in advocations and reductions ; and albeit they have not been observed , seing there is no contrair decision , they cannot go in desuetude by meer none observance . ly , that the injunctions do import , that no deputation can be granted by commissars , but only by the bishops in casibus expressis . it is clear from the foresaid two injunctions ; for to what effect should the commissars residence be required , if he might at his pleasure act by deputs ; and why were these cases exprest , if deputation were competent in all cases . ly . albeit the power of deputation granted by bishop fairfowl be sufficient , during his life , and seclude him from quarrelling the same , personali objectione ; yet that exception is not competent against this arch-bishop . ly , the injunctions being sent up to the king , his majesty has signed and approven the same , which therefore revived them , and for the inconveniency upon the bishops absence or refusal , is not to be supposed , but that the bishops concerned in the commissariots , would provide remeid in such cases . the defender answered , that acts of parliament were not drawn ad pares casus & consequentias , much less their injunctions , and though they were now revived , yet that cannot be drawn back to the power of deputation granted before : neither can this bishop be in better condition then his prececessor , or quarrel his predecessors deed , which he had power to do . the defender did also resume the defense , as to sufficiency and tryal , that seing he had power of deputation , he was not lyable to tryal , nor to reside , if his deput were sufficient . the lords found , that albeit the power of deputation should absolutely stand ; yet the principal commissar behoved to be be sufficient , and ordinarly resident , seing his sufficiency was both requisit by the act of restitution . and by exception in the act of restitution . and that he ought to direct and over-rule his deputs , for whom he was answerable ; and therefore was oblieged to reside , that albeit he did not constantly sit , yet he might advise with his deputs in important cases , and the lieges might have access to him to complain in case of the deputs malversation , and as to the power of deputation it self , and the injunctions . the lords found , that the defender was in bona fide , to enjoy these priviledges till it was declared , notwithstanding he was required to the contrair : but as to the future , they found that he ought to reside , and make use of no deputs , without the consent of the archbishop , but whether that should be only pro re nata , or by a warrand for such persons , not only upon necessar occasions , mentioned in the injunctions , but also in others , that the deputs might ordinarily sit , and advise with the commissars , in cases of importance . the lords were of different judgements , and recommended to the bishop in common , to consider what was fit in that case , but declared only according to the injunctions without interpretating how far the deputation should reach . children of the earl of buchan contra lady of buchan . february . . the six children of the earl of buchan pursue their mother for aliment . it was alleadged absolvitor , because their was neither law , statute nor custome of this kingdom , oblidging a mother to aliment her children . ly , albeit there were , she offers her to admit them in her family , and to entertain them according to her means , but can never be oblidged to pay a modification , in money out of the family ; for in all cases of aliment of wives , or children against parents , the offer to accept , and aliment them in the family , according to the parents means , doth alwayes exclude modification ? as was lately found in the case of sir andrew dick and his son. it was answered , that the law of nature is a part of the law of this , and all other civil kingdoms , and according thereto the lords do alwayes decide , in cases now occurring , where there was neither statute nor custome and if aliment be due , the manner and measure is in arbitrio judicis , who may justly ordain their children to be bred from their mothers , seing she hath miscarried , and married a deposed minister . it was answered , that the law of nature , without our custome is no sufficient law to us , and does not induce obligationem civilem , but only pietatem & affectum , upon which ground it is , that there was necessity of this statute to appoint an aliment for heirs against the wairdatars and liferenters , which insinuats that there was no such law before , and if the law of nature , be the adequat rule , we are oblidged to entertain the poor , and all in distress ; and therefore they might pursue us thereupon . dly , there is no reason to put it in arbitrio judicis , whether a child should be educat with the parent , who must aliment him , even upon pretence of the parents miscarriage , for that being the indispensable right of parents to educat their children , as they see cause , especially who demand aliment of them , it ought not to be in the arbitrament of any judge , unless it were a parliament , and this arbitriment would lay the foundations to encourage children to desert their parents , and to claime aliment out of their family , and to pretend the parents miscarriages , as unfit persons to be bred with , and not breeding them in a fit way ; which accusations were prohibit by the civil law , and never admitted by our custome ; for albeit the lords may appoint the way of education of pupils , their parents being dead : yet tutors have no such interest , as parents . the lords found the mother oblidged to aliment the children jure naturae , which was sufficient to infer this civil obligation , and action , but found that the offer of alimenting them in her family , was sufficient according to her means and they could demand no aliment , nor modification extra familiam : for they found that the lords had thus sustained aliment to children against theîr fathers , not upon the act of parliament , which is competent against all liferenters and donatars , without consideration of their being parents , but super jure naturae , which they found , would not extend to the obligation of charity , and which had no definite rule , but at the discretion of the giver , and was not allowed as a civil obligation by any nation grant contra grant. february . . george crant , having appryzed a wodset right from grant of mornithe ; and thereupon obtained a decreet of removing , and mails , and duties , against grant of kirkdails ; reduction was raised thereof , and of the ground of the same . viz , of the wodset right on this reason , that the one half of the sum was payed , and the wodset renunced pro tanto , long before the appryzing . it was replyed , that there was an inhibition , for the sum , whereupon the appryzing proceeded , after which inhibition , if any payment was made , or renunciation granted , the samine was reduceable , ex capite inhibitionis . it was answered , that all that the inhibition , and reduction thereupon could work , was in so far , as might extend to the satisfaction of the sum ; and now they were willing to satisfie the whole sum , cum omni causa . it was answered , that no satisfaction could now be accepted , because appryzing having followed upon the samine , and being expired , and no satisfaction being offered within the legal , or the time of the reduction , it cannot now be admitted . it was answered , that the inhibition could not only work , that nothing done after the same should be prejudicial to the sum , but altered not the case , as to the appryzing , led long thereafter ; unless the inhibition had been raised upon the appryzing . the lords found that inhibition could not be taken away , or satisfied by payment of the sums after the expiring of the apprizing , wherein the president remembred of a former case , that even in the obtaining of the reduction , ex capite inhibitionis , the offer to satisfie the sum , whereon it proceeded was repelled : in respect an appryzing thereupon was expired . sir robert sinclar contra laird of waderburn . eodem die . john stewart son to the earl of bothwell , being abbot and commendator of coldinghame , the earl being forefaulted in parliament , his son was dishabilitat to brook any lands , or goods in scotland ; whereby iohn fell from the right of provision of the abbacie : thereafter the king annexed the abbacie of coldinghame , which was excepted from the general annexation . to the crown , excepting the teinds ; and gave right of reversion , both of lands and teinds , to the earl of hoom , who gave a tack of the teinds of kello and cumerjame to the laird of wedderburn . thereafter iohn stewart was , by act of parliament restored , and the former act of dishabilitation rescinded , whereupon iohn stewart demitted his temporal provision in the king's hands , and got it erected in an heretable right : he thereupon infeft dowglas of ivleck for relief of sums . sir robert sinclars lady , as heir to him , pursues for the teinds of kello , and cumerjame , upon the infeftment of relief . he had before obtained sentence for the years preceeding john stewarts death , during which , his temporal provision stood , and as to which there was litle controversie by the act of rehabilitation ; but now the pursuer insisted for the years after iohn stewarts death . it was alleadged for the defender , first , that he has right by his tack unexpired , from the earl of hoom , who had the only right of fee , to the whole abbacie , by his infeftment granted to him by the king , long before the infeftment granted to iohn stewart . it was answered , that the earls infeftment , proceeding upon iohn stewarts dishabilitation , that being rescinded , and he rehabilitat , the earls infeftment fell in consequentiam , and john stewarts right , on his own dimission is the only right . it was answered , for the defender , that the earl of hooms right did not proceed solie upon john stewarts dishabilitation , but on the act of annexation following thereon , anno . and johns rehabilitation could put him in no better condition , than before the dishabilitation , and so could extend no further , but to the personal provision he then had , it was answered , that in that special act of annexation . the spirituality , or teind was excepted , as it was in the general act of annexation , and so no right granted by the king , till the teinds were dimitted in his hand by the titular could be respected , as being a non habente potestatem , at least not proceeding legitimo modo . it was answered , that the teinds , though not annexed , yet by the suppression of the popish clergie , they returned to the crown , for the general act of annexation , doth not give the king a right , but acknowledged his right by the ceasing , of the ends for which these benefices were granted , but the annexation makes them indissolvable , from the crown , and indisposable by the king , and so the teinds being annexed , they cease not to belong to the king , but they are at his disposall , and he having disposed of them to the earl of hoom , before he disposed of them to john stewart , the earls right is preferable , and so the defenders , as his tacksman . it was answered , that all the erections of benefices , in temporalities were only upon demissions of the titulars ; for though the popish clergie was supprest , yet the king presented persons to the benefices , who had the titles of abbots , and commendators , and sat in parliament , but had not the office , and in so far they were not supprest , and so the king could not dispose of the benefice , till it were demitted by the titular , in his hands . it was answered , that the king could not dispose in prejudice of the titular incumbent , but that the titular , who was a naked liferenter , his demission should reach the fee , it was against reason , and john stewart being dishabilitat , when the king granted the earl of hooms right , so that there could be no demission , the king being in the commendators place , and could not demit to himself the dishabilitation , at least was equivalent to a demission , though it had been necessar , as it was not ; for albeit de facto , the king erected upon demissions , yet that he could not after the abbots death , have erected it , or provided another , or even during his life , reserving his temporal provision there could be no doubt , else the demission of a liferenter , or administrator could never give the king right of fee , which the resigner had , and here , the king had the right of fee , but not the resigner . yet the lords found● that seing all erections by custome , proceeded on demissions , that the earl of hoom's not proceeding so , and john stewart's proceeding upon his demission , was preferable , and therefore repelled the defense . it was further alleadged , that iohn stewart had ratified the defenders tack . it was answered , that was but personal , and could not be relevant against the defender , being a singular successor . it was answered , that the pursuers interest being but for relief , the defender could satisfie , and pay erest , upon assignation , and so his singular title not being absolute , might be so purged . which the lords found relevant . lord colvil contra town of colross . february . . the lord colvil , being infeft in the heretable office , of the baillerie of culross , by progress from the earl of argyl , first baillie ; who was infeft by the abbots , before the reformation ; having full power of all jurisdictions , civil or criminal ; and of all the amerciaments , bloods , and casualities to his own behove , he does thereupon pursue a declarator of the right , against the town of culross , which is within the lordship of culross , that he had right to the bloods , and to all jurisdictions , civil and criminal amongst the burgesses thereof . it was alleadged , for the defenders , absolvitor ; because their town was erected in a burgh royal , by the king , with power of heading and hanging , and other priviledges of burghs royal ; by vertue whereof , they have been in immemorial possession , in exercing all jurisdiction , civil , and criminal amongst their own burg●sses . the lords before answer , having ordained either partie to adduce w●●nesses , as to the possession of their iurisdiction , which being closed , the debate was reassumed upon the towns right , and possession . it was answered , for the pursuer , that he , and his authors being infeft in the said heretable office , long before the erection , and before the anuexation of the abbacie of culross , to the crown , no right granted thereafter to the town , could prejudge his established right ; especially , seing in the very act of annexation , such bailleries are expresly reserved , and declared to be unprejudged : and as to the towns possession . it was but clandestine , and not total , for the baillies did still exercise jurisdiction , even upon burgesses of the town , committing bloods in the town , and likewise strangers committing bloods , as is instructed by his court-books , and witnesses , which is sufficient to hinder prescription . it was answered , that the defense stood yet relevant , for the granting of the bailliery could not be exclusive of the granters own jurisdiction ; but cumulative : and as the abbots , so the king retained jurisdiction , and might dissolve a part of the barony , which thereby ceased to be within the jurisdiction of the bailly of the barony● and might erect the same in a burgh royall , as he has done in the same way , as the king , after granting an heretable sheriff-ship , may yet erect a barony within the same , which may exclude the the sheriffs , if the baron use diligence . the lords found , that the erection of the burgh royall being after the constitution of the baillerie , could not exclude the same of its jurisdiction , and casuality , unless it had been by possession , sufficient to make prescription , and that the case was not alike , as if the barony of a baron were constitute within an heretable sheriff-ship ; because the casualities of the heretable sheriff-ship belonged to the king himself , and could be only understood , without prejudice of subordinat jurisdiction of baronies , which were ordinar , and known , but here the casualities belonging to the bailli● proprio jure , the constitution of the burgh could not prejudge them , even albeit the lord of the regalities consent was thereto produced , seing the ballie consented not ; but as to the possession , and prescription , whether the town could prescribe the right of the civil jurisdiction ; albeit the baillie exercised the criminal jurisdiction of bloods , or whether the town could prescribe their right of a part of the civil jurisdiction , in so far as concerned trade : the lords superceeded to give answer while the first of iune , and that they had time to consider the depositions of the witnesses fullie . creditors of lord gray contra lord gray . eodem die . certain creditors of the master of grayes , being infeft in annualrent out of certain of his lands , pursues poynding of the ground . it was alleadged , for the lord gray his son , absolvitor , because he has right to an appryzing , and infeftment of alexander milne ; which is expired , and prior to the pursuers infeftments . it was answered , that the appryzing was satisfied by the umquhile master of gray , and a blank assignation thereto , was taken , which was amongst the masters writs , and this lord filled up his name , after the masters death ; this being unquestionably relevant , the difficultie was , concerning the manner of the probation . the lords before answer , ordained witnesses ex officio to be examined , whereupon the lord gray's brother was examined , who acknowledged , he saw the blank assignation , by his brother , and mr. robert prestoun being examined , and several other witnesses , above all exception ; and also the lord gray himself , who acknowledged he got the assignation blank after his fathers death , but not amongst his writs , and that he gave a bond therefore ; many of the lords thought , that seing by the late act of parliament , the appryzing , though expyred was redeemable from him , for the sum he truely payed for it , that it were more just , and safe , that he should be preferred , unless the creditors would purge , and satisfie the sum , and that it were a dangerous example to find so important a writ , as this assignation , to be taken away by witnesses ; yet the plurality found the testimonies so pregnant , and unquestionable : they found the reply proven thereby , and found the appryzing retired , and satisfied by the debitor , and so extinct . earl of landerdail contra viscount of oxenfoord . last of february . the earl of lauderdale , being infeft in the barony of muslburgh , which is a part of the abbacie of dumfermling , and was erected into a temporal lordship , in favour of the lord thirlstoun , thereafter chancellour● the lord lauderdales grand-father● in anno . before the act of annexation , wherein the erection of musleburgh , to the lord thirlstoun is expresly excepted . thereafter in anno . the queen was infeft by the king , in liferent , in the abbacie of dumfermling , with the consent of the lord thirlstoun , as to musleburgh , and his resign●tion , as that effect : shortly after , that same year , the king gave the queen an heretable , and irredeemable right of the whole abbacie of dumfermling , which was confirmed by a printed act of parliament ; the queen lived till the year . after which the king was served heir to his mother , in the abbacie of dumfermling , and infeft therein , being then prince . the king gave an heretable , and irredeemable right to the lord oxenfoords authors , of the teynds of coutsland , as a part of the lordship of musleburgh , in anno . and shortly thereafter , his majesty did renew the earl of lauderdales infeftment , of the lordship of musleburgh , with a novodamus ; lauderdale being forefaulted by the usurpers , swintoun got a donative of the lordship of musleburgh , and amongst the rest , of the teyn is of coutsland ; and did raise inhibition and reduction of their rights . after the kings restauration , the earl of lauderdale obtains his infeftment confirmed in parliament , with an express exception therein , that it should not be derogat , by the act salvo jure , raises inhibition of the teynds , and pursues action of spuilzie , and also of reduction . it was alleadged , for the defender , absolvitor , because he stands infeft in the teynds lybelled by infeftment , granted by the king , before the earl of lauderdales infeftment pursued on , and by vertue of his infeftment , king charles the first , and queen anne his authors have been in peaceable possession , uninterrupted , since the year of god and therefore their right is accomplished , and established by prescription . it was answered , for the pursuer , that the defense ought to be repelled , because , since the death of queen anne , who died in anno . till the interruption made by swintoun , by inhibition , and reduction , in anno . there are not ● years run ; and till the queens death , the earl of lauderdales grand-father could not pursue , because he had granted resignation in her favours , for her liferent , & contra non valentem agere non currit prescriptio ; so wyves provisions in their contract of marriage , prescribe not from their date , but from the time of their husbands death , all obligations prescribe only from the term of payment , and infeftments , and oblidgements of relief from the distresse . it was answered , for the defender , that this defense stands still relevant . first , because , as to any interruption made by swintoun , it cannot be profitable to the pursuer , because he derives no right from swintoun : and as to the queens liferent infeftment , consented to by thirlstoun , the queen never accepted the same , but an heretable right from the king that same year , by which heretable right only she possest , and did all deeds of property , by entring of vassalls , and granting of fews , which a liferenter could not do ; which heretable right , thirlstonn could not misken , because , by a special printed act of parliament , it is confirmed in parliament , and past the great seal , himself being chancellor . it was answered for the pursuer , that the defense , and duply ought to be repelled , in respect of the reply , because the confirmation of the queens heretable right in parliament was salvo jure , and he was secured by the act salvo jure , in the same parliament , and that he knew thereof , at the passing of the great seal , is but a weak presumption , and such knowledge could not prejudge him , nor was he in any capacity to pursue upon his own right , for attaining possession ; seing the queens liferent right , and heretable , were both compatible ; and it was evident , the queen would exclude him , by his consent , in the liferent right , neither can the queens acceptance be questioned , after so long time ; seing the acceptance of the liferent was to her advantage and profit , before she got the fee , and did exclude thirlstouns prior right , which would have undoubtedly reduced the queens right ; and was excepted in the general act of annexation ; and would not fall under the act salvo jure . it was also severally alleadged , that this earl of lauderdales late right was confirmed in parliament . and all other rights declared void , and that the ratification should have the force of a publick law , and not be derogat by the act salvo jure . it was answered , for the defender , that in prescriptione longissimi temporis non requiritur tempus utile , sed continuum , in consideration whereof the time of the said presciption is made so long , and therefore captivity absence reipublicae causa , want of jurisdiction , or the like are not respected . dly , thirlstone valebat agere , because he might have reduced the queens infeftment of fee , or declared his own right of fee to be effectual after her death . and as to the late act of parliament , albeit it does exclude the act salvo jure , yet that is parte inaudita ; and upon the impetration of a party suo periculo , but the parliament have never assumed power to take away the privat rights of subjects , except upon another , or better right , otherwayes , no man in scotland can call any thing his own , but a confirmation in parliament , with such a clause surreptitiously obtained , shall take away the unquestionable right of any other . it was answered , for the pursuer , that the parliament had not incroached upon the just right , of any other , but had only restored the pursuer to his grand fathers right ; and seing there is no question , but that right was prior , and better than the queens , and the defenders , and was in no hazard , but as to the point of prescription , that being a rigorous statute , the parliament might well excuse the pursuer , for not pursuing the king and queen , but rather patiently to abide their pleasure , till they were denuded , in favours of privat parties . it was answered , for the defender , that all our privat rights , especially of property , are founded upon positive law , and there is none stronger then the right of prescription ; and therefore , if the parliament can take that away , as to one person , and not generally , they may annul the right of any privat person whatsomever . the lords were unwilling to decide in the whole points of the debate , but did in the first place , consider the right of the parties , without the act of parliament , in favours of the queen , or the late act , in favours of the earl and in the point of right , they repelled the defense of prescription , in respect of the duply of swintouns interruption , which they found to accresce to the pursuer cujus jure utebatur , and found , that before the queens death , the prescription could not run , in respect of the queens infeftment of li●erent consented to by thirlstoun , which would exclude him from any action , for attaining possession , and they found , that he was not oblidged to use declarator , or reduction , which might be competent in the cases of distress , or the rights of wifes , or any other right , which yet do alwayes exclude prescription , till action may be founded thereupon , that may attain possession . thomas millar contra howison . iune . . thomas millar , having pursued the tennents of one bailie his debitor , for making forthcoming , their duties arrested in their hands . compears howison , and produces a disposition , and infeftments from baillie of the tenements , prior to the arrestment , and craves to be preferred . it was answered for millar , that howisons disposition was null , as being in fraudem creditorum against the act of parliament , being granted after the contracting of millars debt ; and albeit , the narrative of the disposition bears , causes onerous , yet he offered to prove , by howisons oath , that it was not for causes onerous , at least equivalent to the worth of the land ; which was found relevant , and howison having deponed , that his disposition was granted for a sum of . merks addebted to himself , and the sum of . merks adebted to iohn burd , for which he was cautioner for baillie , the disponer . at the advysing of the cause . it was alleadged , that the disposition , nor the disponers oath could not sufficiently instruct the cause onerous ; seing the oath did not bear , that there was a price made , but only that there was no reversion , nor promise of redemption granted ● yet the disposition was truely in trust , which ofttimes is tacit , as being the meaning of the parties , and is not expresse by reversion , or back-bond ; so that if baillie , or this arrester would pay these sums , howison could have no further interest . it was answered , that the points referred to howisons oath were denyed , and that he was not oblidged to keep the bonds , but might destroy them , as being satisfied . the lords found , that as to howisons own bond , he needed not instruct the same , but as to burds bond , they found , that he ought to instruct it , by some adminicles , further then his own oath , that the debt was , and was payed by him , in respect his oath bore not a price made , and that he was vncle to baillie the disponer . mr. alexander nisbit contra eodem die . mr. alexander nisbit , as assigney to a sum , pursues the debitor for payment , compears the arrester , who had arrested it in the debitors hand , for a debt due to him by the cedent , and whereupon he had obtained decreet before the sheriff of berwick . it was alleadged , for the assigney , that the decreet was null , because the principal debitor was not called in the decreet , for making forthcoming , or at least , at that time , he lived not within that jurisdiction . it was answered , that albeit the arrester had no more , but his naked arrestment , he might compear for his interest , and crave preference to the assigney , whose intimation was posterior . it was answered , he could not be pursued , hoc ordine● because he , whose money was arrested , was not yet called , viz. the assigneys cedent , who is the arresters principal debitor ; who , if he were called , might alleadge , that the debt whereupon the arrestment proceeded , was satisfied , which was not competent to the assigney , being jus tertij , to him . the lords found the arrester might compear in this process , without calling his debitor , but they found , that the assigney might either alleadge payment in name of his cedent , or if he craved a time to intimate to his cedent , they would superceed to extract , till that time , that the cedent might defend himself . earl of cassils contra sir andrew agnew . iune . . the earl of cassils , as superior of some lands holden of him , by iohn gardener , obtained declarator of his liferent escheat , and that a gift of the said liferent , granted by the said earl , to the said iohn , was null , in so far as it contained a clause irritant ; that if iohn gardener should give any right of the lands to any of the name of agnew , the gift should be null , ipso facto , whereupon in anno . the earl obtained declarator of the clause irritant , by iohn gardeners giving right to sir andrew agnew , and now insists for the mails and duties since that declarator . it was alleadged , that the said earl had accepted the feu dutie of several years , since the said declarator , and thereby had tacitly past from the declarator , and could not seek both the feu-dutie , and also the whole mails and duties by the escheat . it was answered , for the earl , that having both rights in his person , he might poynd the ground for the feu-dutie , and his donatar might pursue for the maills and duties . dly , his acceptance of the feu-dutie , albeit it could not consist with the maills and duties , yet it would only extend to these years , that the feu-dutie was accepted , and to no others . the lords found the acceptance of the feu dutie relevant , only for these years , for which it was received , but it occurred to some of the lords , that if it were alleadged , there were three consecutive discharges of the feu-dutie , that these , as they would presum , all bygone feu-dutie payed , so they would extend to the maills and duties , for all years preceeding the discharges ; therefore the defender was ordained to condescend , if so many discharges were , and that this point might be debated . william crawfoord contra andrew duncan . june . . william crawfoord , as assigney to a bond of . merks , granted by andrew duncan , pursues for payment . it was alleadged , absolvitor ; because the bond was null , having no date at all , & data est de substantialibus . it was answered , that the pursuer offered him to prove by the defenders oath , that it was his true subscription , which was sufficient , and the date is only substantial , when improbation is alleadged , or any right that might take away the writ , if it were of such a date ; as a prior assignation , or general discharge . the lords found the reply relevant , with this provision , that the defender might adject , what quality he thought fit , as these mentioned , or that it was done in minority , or not delivered , &c. but they found him not oblidged to depone simpliciter , upon the verity of the subscription , and to prove such qualities , as they had done before , in a holograph writ , wanting date the last session , in the process betwixt the earl of kinghorn and sir james murray . elizabeth anderson contra george cunninghame . iune . . this cause betwixt elizabeth anderson , and george cunninghame , anent a legacie lest by the said george his wife , to the said elizabeth anderson , being debated the . of february last . the lords then found , that george , by confirming his wifes testament , in giving up his debts , to exhaust the free gear , and abate the legacie , did not hinder himself to adduce further debt , for a further abatement : but now it being further alleadged , that immediately , before the confirmation , the bond he would now add , was registrat , and he charged therewith , he could not be ignorant thereof , at the time of the confirmation . the lords altered their interlocutor , and found that having scienter omitted that deb● , he could not bring it in to the legatars prejudice . this was stopt by bill the next day . colin hay contra magistrates of elgin . iune . . colin hay pursues the magistrats of elgin , for the debt of a rebel escaping out of the prison of elgin , whom he had arrested there . it was alleadged , for the defenders absolvitor , because the rebel was not incarcerat by the pursuer , upon his caption , but being incarcerat by another , was only arrested in the tolbooth by the pursuer , and all that is produced to instruct the same , is only the execution of a messenger , who arrested the rebel . it was answered , there was no difference , whether the rebel had been incarcerat upon the pursuers caption , or had been arrested ; for in both cases the magistrats are lyable : and the keeper of the tolbooth ought to have a book , for certifying the magistrats of all incarcerations , and arrests in prison ; and if they be neglective therein , it is on their perills ; and yet here the messenger not only arrested , but the executions bore , that he intimat the same to the provost , and baillies . which the lords found sufficient , and repelled the defense , and found no difference betwixt incarceration , and arresting in prison . sinclar of bryme supplicant eodem die . sinclar of bryme gave in a bill , bearing , that he had obtained suspension of all execution , and specially of appryzing , which he presented at the time of the appryzing , and yet the messenger , and writer went on , and appryzed ; and therefore craved , that the appryzing might be stopt at the registers , and seals . the lords refused to grant the desire of the bill , without there had been a summons against the appryzer past the signet ; but would not upon a bill cite parties out of the town , having no dependence on the house , nor annull , or hinder any pretended right they had , without citing of them , but resolved to take in consideration the contempt of the messenger , and writer , at the discussing of the cause . sir hendrie hoom contra tennents of kello , and sir alexander hoom. iune . . john hoom younger of kello , being forefaulted in the parliament . for being with the english armie , against the kings armie , at worchester , . sir alexander hoom obtained gift of the forefaultry , and thereupon came in possession . sir hendrie hoom having appryzed the lands of kello , from the said iohn hoom , and his father alexander hoom upon their bond , and having charged the superiout , in . to infeft him , obtained decreet of maills and duties against the tennents ; which being suspended upon double poynding ; and sir hendrie and sir alexander competing . it was answered , for sir alexander , the donatar , that he had possest three years , and offered him to prove , that the rebel had possest five years before ; therefore craved the benefit of a possessorie judgement . dly , that he was preferable in poynt of right , in so far as he offered him to prove , that the rebel was five years in possession , before the forefaulture , which gives the king , and his donatar compleat right by the act of parliament . it was answered , for the creditor , that he ought to be preferred , because , there being no retour upon the act of parliament , finding by the inquest , that the rebel was five years in possession , as heretable possessor , he can neither have the benefit of a possessory judgement , nor stop the creditors diligence , who found themselves upon the appryzing against the father , who stood publickly infeft , and there is no sufficient right in the rebels person alleadged , nor produced . it was answered , that the five years possession might be proven by witnesses , by way of exception . dly , it was offered , to be proven by an inquest , conform to the act of parliament . the lords found no benefit of a possessory iudgement competent ; neither would they sustain the five years possession by way of defense ; but decerned superceeding extract , while the . of july , within which time , if the donatar obtained the retour of an inquest , he should be heard thereupon . the donatar further alleadged seperatim that the rebel was infeft by the father , which was sufficient to prefer him without an inquest . it was answered , non relevat , unless he had either been publickly infeft , or by base infeftment cled with possession , before the superior was charged upon the creditors appryzing , which , being equivalent to a publick infeftment , is preferable to the rebels base infeftment . it was answered , that the king , or his donatar needed no possession , nor can be prejudged for want of diligence . the lords found the creditors alleadgeance relevant . iack contra mowat . eodem die . the lords found , that iack having obtained decreet , as assigney by his father , it was relevant for the debitor , to alleadge and prove by the assigneys oath , that the assignation was without a cause onerous , and by the cedents oath , that the debt was payed before intimation . sir henrie hoom contra sir alexander hoom. iune . . in the cause debated yesterday , betwixt sir henrie hoom , and sir alexander hoom. it was further alleadged , for sir alexander hoom , that the rebel had not only five years possession ; but was infeft by an infeftment holden of his father , which was cled with possession , before the appryzers charge against the superior , in so far as the infeftment bore a reservation of the fathers liferent , and so the fathers possession was the rebells possession , and was sufficient to validat the base infeftment ; seing there could be no other possession attained , during his fathers lifetime ; or at least , there was reserved to the father a yearly rent , and the rebel gave his father a warrand in writ to continue his possession , of such of the lands for the same . the lords ordained the donatar to condescend , whether the rebells infeftment proceeded upon his contract of marriage ; and he declaring that it was by a distinct right thereafter . the lords found the possession of the father not relevant , it being betwixt conjunct persons , privat , and suspect : for they thought , if possession by such reservation , betwixt father and son were sufficient , the creditors would hardly be secure . dumbar contra lord duffus . eodem die . the lord duffus having obtained a decreet of removing , against dumbar , his tennent , and having execute the same , by letters of possession . the tennents raises suspension , and reduction of the decreet , and a summons of ejection ; the reason of reduction was , that the sheriff had done wrong , in repelling and not expressing in the decreet a relevant defense . dly , that the tennent could not be decerned to remove ; because he was already removed irregularly , by ejection ; and ought not to be put to defend in the removing , till he were repossest , spoliatus ante omnia est restituendus : which he instructed , by an instrument taken in the hand of the clerk of court ; and where it was replyed before the sheriff , that he had not found caution , for the violent profits . he answered , that he needed not , seing the pursuer himself was in possession , by the ejection . it was answered , that the lord duffus offered him to prove , that all he did , was to put in some corns , and plenishing in an ou● house , long after the warning , of the tennent that had taken the roum ; and that he continued to possesse all the rest of the house , and the whole land , by his cattel , till he was legally removed ; and neither the family , nor goods of the new tennent came in , till then . it was answered , that the alleadgeance was contrair to the tennents lybel of ejection , bearing , that he was dispossest , both from the house , and lands . the lords considering , that the tennents was only positive , in ejection from the house , and had once acknowledged , that he was not ejected from the land ; they asso●lzed from the reduction of the decreet of removing ; but they sustained the action of ejection , and repelled the defenses , as contrair to the lybell , reserving to themselves the modification of the violent profits , and the other party to debate , whether , after the decreet of removing , the tennent should have re-possession , or only the profits , or damnages . george tailzor contra iames kniter . jun● . . george tailzor , having appryzed some lands in perth , set a tack of a part of it to iames kniter , who , thereafter appryzed the same . tailzor now pursues a removing against kniter , who alleadged , absolvitor , because he had appryzed the tenement , within year and day of the pursuer ; and so had conjunct right with him . it was answered , that he could not invert his masters possession , having taken tack from him . the defender answered , it was no inversion , seing the pursuer , by act of parliament had right to a part , but not to the whole , and the defender did not take assignation to any new debt , but to an old debt , due to his father . the lords sustained the defense , he offering the expenses of the composition , and appryzing , to the first appryzer , conform to the act of parliament . alexander stevinson contra laird of hermishills . eodem die . alexander stevinson , as assigney by his father , pursues hermishills for payment of a bond , who alleadged , absolvitor , because the defender , as heir to his father , had right to a bond , due by the pursuers father , before the assignation ; after which the assignation was a deed , infraudem creditorum ; and so null . it was answered , non relevat , unless the cedent had been bankrupt , or at least insolvend● . the lords repelled the defense , in respect of the answer . the defender furder alleadged compensation upon the said bond ; which was relevant● against the pursuer , both as heir to , and as assigney by his father . it was answered , non relevat ; against the pursuer , as executor , but for his fourth part , being one of four executors . dly , the defenders father was tutor to the pursuer ; & nondum reddidit rationes . the lords found , that compensation being equivalent to a discharge , taking away the debt ipso facto ; it might be proponed against any of the executors , in solidum : but in regard the tutors accompts were depending , the lords sisted his process , till he tutors compts proceeded . sir robert sinclar contra laird of houstoun . eodem die . sir robert sinclar pursues a poynding of the ground , of the lands of leni , upon an old annualrent , of . merks . constitute above a . years agoe . houstoun alleadged absolvitor , first , because he brooked these lands past prescription , peaceably , without any pursuit upon this annualrent . dly , because this annualrent was base , and never yet cled with possession ; and his infeftment was publick . it was answered to both , that the pursuer produced a decreet of poynding the ground , in anno . since which , the pursuers minority being deduced , it is not . years . likeas , there is produced a precept of poynding , for the said annualrent . it was answered , that the decreet in anno . was only against the tennents , and possessors ; and so is null , the ●eretor not being called . it was answered . first , that albeit the decreet had been defective , for not calling the master , yet it was sufficient to interrupt prescription . dly , it was sufficient to give possession , and to validat a base infeftment , by a civil possession : for as natural possession , by the tennents payment would have been sufficient , though without their masters knowledge , or consent : so a decreet , yea , a citation against them , is sufficient for a possession , as being equivalent to a natural possession : and albeit the proprietar could not be prejudged , as to the constituting an annualrent , in the point of right , not being called : yet as to the point of possession the right being constitute , he might . dly , albeit the heretor must be called , when his ground is first affected with an annualrent , in attinenda possessione , yet if the annualrenter be in possession , he may continue the same , without calling the master ; as well as in tyends , thirlage . &c. and here the old precept of poynding was evidence sufficient of a prior possession , in re tam antiqua . the lords found , that the decreet was possession sufficient , to interrupt prescription . minister of contra lord elphinstoun . iune . . minister of pursues the lord elphinstoun , for the viccarage teinds of his lands in his paroch . it was alleadged , absolvitor , because he brooked these lands by immemorial possession , without paying any viccarage , and so had prescribed exemption , and liberty . it was answered , that the viccarage being due de jure cummuni ; desuetude cannot take them away , nor can any prescription give right to them , unless it were by a title ; as if the lands had been templar lands , or belonging to these orders , which payed no teynds , but were exempted by the cannon law ; and therefore , in the last session , it was found in the case of the earl of panmoor , that . years did not prescribe the right of parsonage , except for the years preceeding the . it was answered , that there was a great difference betwixt parsonage and viccarage , which is local , and consuetudinary , which is therefore only found due , according to what has been accustomed to be payed ; so that the teynd of lint , hemp , geess , stags , swine , fruits , fishes are only due in these parts , where they have been so accustomed : and therefore , as custome may take away a part , so it may extinguish the whole . the lords found the defender could be no furder lyable , then for that viccarage , which was commonly payed throughout all the kingdom . viz. stirk , lamb , and wool ; and sustained not the same for milk , or any other particular . but the defender , upon the twenty one of iune , having supplicat to be further heard , alleadging , that it was a common case , that when the lands were most in labourage , and the viccarage small , and not considerable , that through the whole country viccarage was never craved , time out of minde . the lords stopped interlocuquutor , till they were further heard . thomas begg contra patrick nicoll . iune . . thomas begg gave commission , bearing , that he had delivered a certain sum of money to patrick nicoll , to buy wair for him in england ; whereunto there is subjoyned the said patrick his acceptance , bearing sea hazard excepted . thomas begg now pursues for the money , or wair● patrick nicoll alleadged absolvitor ; because he offers him to prove , that shortly after the said commission , he went upon the voyage , and that the ship was taken , and the whole goods there , wherein it must be presumed , the pursuers money was . it being impossible for the defender , to prove that , that individual money was there , and yet he is willing to make faith , that it was there . it was answered , that the defender had factor-fee , and should have transmitted the money by bill , as he did some of his own ; and at least he might prove , that he had a considerable sum of money in the ship. the lords sustained the defense , and repelled the reply , and that the defender being trusted by the pursuer , he could not refuse his oath , in supplement , that his very money was taken ; seing he neither might , nor could show , what money he had , when he entrèd to his voyage , unless the pursuer alleadged , that he gave the defender allowance for the exchange . earl of eglingtoun contra laird of cunninghamhead . iune . . the earl of eglingtoun , pursues the laird of cunninghamhead for the teynds of peastoun , who alleadged absolvitor , for . lib● yearly , which by decreet of the plat , he payed to the minister of irving , and produces the decreet . it was alleadged , that where the decreet bore , out of the teinds , it was meer error of the clerk , and disconform to the ground of the decreet ; which was a tripartite contract , whereby the earl of eglingtoun agreed for so much victual , out of his teynd , beside what was to be payed by the town of irving , and heretors ; and the heretors oblidged them , and their heirs , and successors of these lands to pay so much money ; which cannot be understood , out of their teynd ; they being oblidged , as heretors , and the teynd not being theirs ; but the earl of eglintouns , who was oblidged so much out of his teynds , besides these oblidgments . it was answered , that this being , to lay a burden of stipend upon the stock , is most unfavourable , and the meaning thereof cannot be inferred , unless it had born expresly , out of the stock ; especially , seing the teynd was under tack , and it was ex gratia , for them to pay any more then their tack-duty , but now when the tacks are expired , the earl cannot crave the whole teynd , and lay this burden upon the stock . dly , the lords cannot alter the express tenor of the decreet of plat , which was a commission of parliament . the lords found , that the tripartite contract ; as to this , did not burden the teynds , and therefore , seing the plat could only decern out of teynds , they found that by this contract , the heretors behoved to relieve the teynds of this burden , out of their stock . arbuthnet contra mary keith . eodem die . andrew arbuthnet , having gotten a gift to the behove of the viscount of arbuthnet , of the marriage of the heirs of iohn keith of p●tten , did thereupon pursue the two heirs portioners , one of them being dead , he insists now against the other , for her part , who alleadged no process , because none was called to represent the other , who is thus far interessed , that the probation of the avail of the marriage , against the one will prejudge the other . the lords repelled the defense , and found it would not prejudge the other , against whom new probation behoved to be used . patoun and mercer contra patoun . eodem die . john patoun , as heretor of the miln of mukart , pursues for the abstracted multures , and alleadges , that the miln is the miln of the barony , and the lands a part of the barony , and that they being in immemorial possession of intoun multures , of one peck of the boll ; and that above thirty years ago , there was a decreet arbitral , by the marquess of argyle , decerning these multures . the defenders alleadged absolvitor , because they were infeft before the pursuers right produced , cum molindinis ; and as to the act of court , the whole tennents were not present : and the decreet arbitral , it is under reduction . the lords sustained the pursuers condescendence , reserving the reduction as accords . masson contra iune . . masson pursuing a declarator of escheat . it was answered , that all parties having interest were not cited at the mercat cross , conform to the warrand of the letters . it was answered , that was but stilus curiae , long indesuetude , and it is enough that the rebel is cited , and none would be prejudged , who were not cited , and any may compear that pleases , for their entress . the lords repelled the defense , and forefault the amand given thereupon , as being contrair to the common custom . laird of philorth contra lord fraser . iune . . the laird of philorth pursues a declarator of property , of lands lying about the kirk-yard of rathan , and particularly , that a part of the land within the kirk-yard-dyke , is his property , and that therefore the dyke ought to be demolished , and specially the lord fraser's arms upon the common entry of the kirk-yard-dyke . it was alleadged for the defenders ; first , absolvitor , because the pursuer had homologat the right of the k●rk , as to the kirk-yard-dyke , and all within it , in so far as he had buried the dead of his own family in the bounds in question ; and likewise his tennents . the lords found the former part relevant ; but not the latter , unless he had been present at his tennents burials , or otherwise had consented . the defenders further alleadged absolvitor , because the minister , and parochioners of rathan had possest the kirk-yard , and dyke peaceably , by the space of years , which is sufficient , to give them a right upon this point . there occurred to the lords these points ; first , whether less possession then years could constitute the full right of a kirk-yard ? ly . vvhether less possession , by burying of the dead , could take away anothers property ? and whether simply , or so as to give him damnage , and interest ? ly . vvhether an interruption , made after the building of this dyke , by the pursuers raising summons , shortly thereafter , could operate any thing ? if the defenders had bruiked , since the interruption , by that space , that would have been sufficient to constitute a full right before interruption . many were of the opinion that kirk-yards have as great priviledge as any kirklands ; and that in kirk-lands , . years possession before the reformation , or . years after , according to the old act of sederunt of the lords , did constitute a full right ; as well as the long prescription in other cases ; and likewise that in ecclesiasticis , . years possession did constitute a right , decennalis & triennalis possessor non tenetur docere de titulo ; and that accordingly the lords were in use to decide in all such rights ; but the point to be decided was , whether interruption once used , endured for . years ? so that albeit . years would suffice ; yet the interruption long before these . would alwyse be sufficient till the interruption did prescrive by . years ; wherein many were in the negative , that as in a possessoy judgement on . years , if interruption were alleadged , it was always a relevant reply , that since the interruption , the defender has possest . years without interruption : so if . or . years be sufficient to the kirk , no interruption preceeding , but only such as are done during these years , can be sufficient ; for if . years will take away the solemnest rights , and writs ; much more may it a citation . others were for the affirmative , on this ground , that in the short prescription of . years , in spuilzies , &c. interruption once used serves for . years ; so it must in this case ; for he that once interrupts , is alwise holden as continuing in that interruption , until it prescrive , or be otherwise past from . but it was answered , that it did prescrive by possessing . or . years in rebus ecclesiae , church-men seldom have , or keep evidents ; albeit in other cases , interruption would only prescrive in years . yet the plurality found , that after interruption , no less then . years possession was sufficient , but reserved to the lords the question anent the ground , in so far as dead were buried therein , after probation . iohn mcmorlan contra william melvil . eodem die william melvil , and one hatter an englishman , both residing in england , gave bond to gawin lourie residing there , after the english form , who assigns it to iohn mcmorlan . melvil suspends upon this reason , that he had made payment to gawin lourie the cedent , which he offered to prove by gawins oath , and which could not be refused , because he offered to prove that it was the custom of england , that the cedents oath can never be taken away by assignation , as it is in scotland , but that assignations are only as procuratories , and that payment might be proven there by witnesses , to take away writ . it was answered , that the law of scotland must regulate the case , because the assignation is according to the scots stile , and the debitor , albeit residing in england , was a scots man , and knew the custom of scotland . the lords found that the manner of probation behoved to be regulate according to the custom of england , and so , that payment might be proven by witnesses , or by the cedents oath , yet so , as the cedent could not be holden as confest , but the debitor or suspender behoved to produce him , and move him to depone : wherein the lords so declared , because they were informed , that the suspender proponed the alleadgeance , because the cedent was quaker , and would not swear at all . duke of hamiltoun contra duke of buckcleugh . eodem die . the duke of hamiltoun , as collector of the taxation , having charged the duke of buckcleugh for the taxation of the lordship of dalkeith . he suspended upon this reason , that the king possest these lands himself , the years of the taxation , and so cannot demand them from the suspender , who is a singular successor . the charger answered , that he had the taxation from the king for a cause onerous , viz. a debt . the lords found the reason of suspension relevant . dougal mcpherson contra sir rory mcclaud . iune . . dowgal mcpherson pursues sir rory mcclaud , for payment of a sum , upon his promise , and the summons bears a warrand to cite him at the mercat cross , nearest the place of his residence , being in the lsles : whereupon the pursuer craved him to be holden as confest . the defender alleadged , that he was not personally apprehended , and so could not be holden as consest ; and that this citation at the mercat cross was periculo petentis , and not to be sustained in the time of peace , when there was no trouble in the countrey . the lords found , that warrands for such citations ought not to be granted by common bills , of course , but only by the lords , upon special bills in presentia , but seing the defender compeared , they allowed his procurator a long time to produce him . ianet kid contra dickson . eodem die . janet kid pursues reduction of a disposition of some tenements in forfar , made by her father on this ground , that the disposition is subscribed but by one nottar , and one witness , and the charter by one nottar , and two vvitnesses , and so is null by the act of parliament , requiring two nottars , and four vvitnesses , in vvrits of importance . it was answered , that the tenements being small , the price of one exprest , being . merks , and the other . merks , the foresaids two vvrits were sufficient , cled with many years possession , in the defuncts time . who never challenged the same . ly , they are established by the seasine given propriis manibus , conform to the obligement of the disposition , and charterby a town-clerk , registrat in the town books . the lords having ordained the defenders to condescend , upon any adminicles they had , for astructing the verity of the subscription , they condescended only on seven years possession , which the lords found was not sufficient to establish the right , without reduction : but if the defender had condescended on . years possession , the lords declared they would hear them dispute , whether that could be sufficient , or not . chalmers contra bassily . iune . . mr. william chalmers being to go abroad , grants a factory to bassily , bearing , to endure untill he returned , and after discharged the same in vvrit ; he now writes a letter to his father , bearing , that he would do any thing he could to recal , and reduce that factory , whereon a reduction was raised on this reason , that all factories of their nature are revockable at the pleasure of the constituent , albeit they contain a term of endurance . it was answered , that this factory , containing such an endurance , cannot be revocked till the term come . ly . albeit factories be revockable , yet it must be re integra ; but here the factor hath advanced considerable sums of money , upon consideration of the factory . the lords found the factory revockable , the factor being always refounded of what he profitably expended upon consideration thereof before he quite possession . martin stevinson contra dobbie . eodem die . dobby being tennent to iames stevinson of certain lands , he gets an infeftment of annualrent out of the same lands , before whitsonday , but the first terms payment of the annualrent was martinmas thereafter ; after whitsonday and before martinmas , martin stevenson apprizes the land , and charges the superiour , and thereupon pursues for mails and duties . dobby excepts upon his infeftment of annualrent . the pursuer answered , that the infeftment was base , and before it was , or could be cled with possession , he had charged the superiour , which was equivalent to a publick infeftment . the defender answered , that a publick infeftment interveening , before the first term of payment of the annualrent , did not prejudge the base infeftment , which could not be presumed to be privat , or simulat for want of possession , till the term came , at which possession might be attained , or pursued for . ly , the defender being in natural possession , from the very date of his seasine , intus habet , and he may retain his own annualrent , which begins to become due from the date of his seasine , de momento in momentum , albeit there be a term appointed to pay accumulative , so that as the getting payment from the possessor of any part of the annualrent , or his obligement for the same , would be a possession sufficient ; so the defender having the same in his own hand as possessor , it is equivalent . the lords found this member of the defense relevant , and had no necessity to decyde the other point ; whether the interveening publict infeftment , before the first term , would exclude the base infeftment , without possession , wherein they thought that there was great odds , if the appryzers infeftment , or diligence had been before whitsonday , in respect the first term of the annualreni ; was not the next term after the seasine , and so if it might pass one term , by the same reason it might pass ten terms , and be valid ; because in neither case , could possession , or action proceed thereon , and therefore might be suspected of simulation , so that if the appryzers diligence had been before whitsonday , the annualrenter could have no right to that term , and so the appryzer would attain to the possession , and could hardly be excluded thereafter . stevin contra boyd . eodem die . stevin pursues his mother as his tutrix , and iohn boyd as husband , and factor , for an accompt of his fathers means : in which accompt these points were reported : first , there was some old unfashionable ware in the defuncts inventar not sold , whereof the tutrix offered to the pursuer his two third parts in specie . the pursuer answered , that the tutrix had priced the same , and behoved to accept them at that price , and that she ought to have done diligence to have sold them ; and executors are never liberat but upon payment of the price . the lords found , that albeit executors are comptable to creditors always for the price ; yet not so to the children ; and therefore if it was visible that the ware was old , and could not be sold , wherein the tutrix was at the loss of her third , they found the same should be accepted ; but in that case they found the tutrix lyable for any greater price she got , then that contained in the testament . the second point was , what diligence the tutrix should be lyable for , whether registrat horning were sufficient , or if poinding and apprizing behoved to be used . the lords found , that horning would not be sufficient in all cases , but according to ehe condition of the debitors , and therefore ordained the parties to condescend thereon . fleming contra fleming . iuly . . dam elizabeth fleming being executrix to her husband , and tutrix to her children , gave out the sum of . merks to the lord cardross , and took a bond● bearing the same payable to her self in liserent , and to malcolm , and andrew flemings , and failzing the one by decease , to the other ; this bond by a former interlocutor , was found not to be altogether a donation ; but it satisfied the two bairns portions pro tanto . malcolm being now dead , andrew the surviver claimed the sum by the substitution . thereafter the children as executors to malcolm , claimed the same , on this ground , that this sum not being found a donation , but to be given in satisfaction of of andro's portion , the tutor could not substitute any heir to malcolm , but behoved to remain as it had been lent , as malcoms own means , in which case it would belong to his whole brethren and sisters , and not to andrew only . andrew all eadged , that he being substitute by his mother , who had now right from the remanent children , she who had constitute this substitution could never quarrel the same . it was answered for the mother , that she did not quarrel the substitution ; but that albeit the substitution took place , andrew was her substitute , and so was in the same condition as malcolm , so that malcolms half behoved still to be taken away by compensation , in so far as she was creditor to malcolm , as if malcolm were alive . it was furder alleadged for andrew , that in such a clause as this , there was no fiar , and heir , but two conditional , or alternative fiars , viz. either of the children that survived ; and therefore such clauses would never make the substitute heir to represent the defunct , and be lyable to his debts . the lords found , that by the clause of substitution , the person substitute was heir of provision , yet not so as to be lyable to the person substitute his whole debt ; but quoad valorem , of what the substitute had obtained by the substitution ; and therefore found the sums to belong to andrew as heir substitute , and yet with the burden of the compensation , in the same case as was competent against malcolm himself . by which decision it follows , that the mothers substitution to malcolm was effectual , for which there is no reason , but the error was in the first concoction , for this sum should have been found a pure donation by the mother , not only in respect of her liferent reserved , which she past from , but in respect of the substitution , which she could not pass from , being jus tertij . earl of kinghorn contra laird of udney . eodem die . the umquhil earl of kinghorn having granted a wodset to the umlaird of vdney , he by his missive● acknowledged the sums to be satisfied , and obliged him to grant a renunciation , whereupon the earl of kinghorn pursues this vdney , as representing his father to grant renunciation , and procuratory of resignation ; and condescended upon the passive titles thus , that umquhil vdney , after the receipt of the sums contained in the wodset , had infeft the defender in the estate of vdney , reserving to himself a power to alienat , and dispone ; after which infeftment , this missive is subscribed , acknowledging the receipt of the sums of before ; and thereupon alleadged , first , that the father was oblieged by the contract of wodset , upon payment of the sums to renunce , and resign , in prejudice of which obliegements , he had disponed his estate to the defender , who was alioqui successurus , and so as lucrative successor , is oblieged to grant the resignation . ly , the letter obliging the father to grant resignation , albeit it be after the infeftment ; yet seing there is a power reserved to the father to dispone his obligement , must oblige the son. it was answered , that there was nothing before the defenders infeftment , to instruct payment , the letter being after , and no obligement therein could burden him thereafter , unless his father had disponed , or had given a security out of the estate , conform to the reservation . the lords found this passive title new and extraordinary , therefore moved to the pursuer to alter this libel , and libel therein a declarator of redemption , and to conclude the same , either with a reduction or declarator , for declaring that the wodset right being acknowledged by the wodsetter to be satisfied , might be declared extinct ; in which case there needed no resignation ; or otherwise might conclude the defender to grant resignation , and the defender thereupon renuncing to be heir , the pursuer might adjudge , and thereupon be infeft : but others , thought that hardly could a right be adjudged , which was satisfied and extinct . the lords referred to the pursuers choise , vvhich of the vvayes he thought fit . iean cuningham contra laird of robertland . iuly . . jean cuningham as donatrix to the escheat of umquhil sir david cuningham of robertland , pursued general declarator against his son , who alleadged absolvitor , because the horning was null , seing the charge and denunciation was only at the mercat cross of edinburgh , whereas by the act of parliament , . c. . all hornings execute against persons within the realm , dwelling within bailleries , or stewartries , should be execute at the head burgh thereof . ita est , umquhil robertland , had his dwelling-house at robertland , within the baillerie of cuningham , albeit for a time he was out of the countrey , and was a prisoner of war for the king. the lords repelled the defense , and sustained the horning , and found that the act of parliament met it not ; seing neither the person denunced was within the realm , nor dwelt within the baillerie at that time ; but had remained several years in england . hallyburton contra hallyburton . eodem die . hallyburton pursues a reduction of an infeftment , granted by by his father upon his death-bed , to his sisters , who alleadged absolvitor , because he had consented to the disposition , in so far as he had subscribed witness thereto , and if need beis , offered to prove that he had read the same . it was answered , non relevat , because the subscribing as witness , relates only to the verity of the parties subscription , and nothing to the matter therein contained , so that whether the same was read or not , it can import no probation . the lords found the defense relevant , reserving to themselves to consider what the naked subscription without the reading of the writ should work , in case the reading thereof were not proven . earl of hume contra his wodsetters . july . . the earl of hume pursues certain wodsetters to compt and reckon for the superplus , more then their annualrents , conform to the late act between debitor and creditor ; who alleadged , first , absolvitor , because the reversion produced is null , not being registrat conform to the act of parliament . c. . ordaining all reversions to be sealed , and subscribed by the parties own hand , or a notar , which shall make no faith , if it be not registrat . it was answered , that that act of parliament was in desuetude , not only upon the point of not registration , but want of seasine ; otherwise the act of parliament . anent the registration of seasines , had dot been necessar . the lords repelled the defense , and found the said old act of parliament to be in desuetude . one of the defenders further alleadged , that the rights of these reversions are prescribed , because they were not pursued within the years appointed by the par. . c. . it was answered , that the pursuer , or his predecessor were minors , during the space of or years of the said & prescriptio non curit contra minorem . it was answered for the defenders , that in this part of the act , there is no exception of minors ; albeit in the former part of the act , anent the years , minority be expresly excepted . & exceptio firmat regulam in casibus non exceptis , especially seing reversions being but pacta de retro vendendo , and so bonds were prescribed by the old act of parliament , so the addition of years was ex mera gratia , and ought to be strictly interpret . the lords did also repel this defense , and found that the years run not against minors . it was further alleadged for one of the defenders , that the reversion made use of against him , was since the act of parliament . and not registrat , and so could not operat against him , who is singular successor to the granter thereof . the pursuer replyed , that before the defenders right , he had used an order of redemption , and had execute a summons of declarator , whereby res fuit litigiosa ; and no right granted thereafter , can prejudge the pursuer . the lords found the reply relevant to elide the defense . laurence scot contra the heirs of line of auchinleck . eodem die . laurence scot pursues the daughters of umquhil david boswel of auchinleck , and the lord cathcart , and the lairds of adamton , and sornbeg , for a thousand merks adebted by him to the defunct . the defenders offered to renunce . the pursuer replyed , they could not renunce , because they had behaved themselves as heirs , in so far as by agreement betwixt them , and the heir-male , they had renunced their interest of the heretage in his favours , and had gotten sums of money therefore . it was answered , non relevat , unless they had so renunced , as to prejudge the creditors , or to assign , dispone , or discharge any thing they might succeed to , but if they only got sums of money from the heir-male , in way of gratuity for their kindliness to the estate , and to grant a renunciation voluntarly , as law would compel them , it would not make them lyable ; and the truth is , that by the defuncts contract of marriage , the estate is provided only to the heirs-male , and only merks to the daughters : likeas , the defunct disponed the estate to his brothers son , who adjudged both upon the clause of the contract , and disposition , and the defenders renunced to him ; as a creditor , in common form . the lords found that the geting of sums of money , for such a renunciation , by which the creditors were not prejudged , did not infer behaving as heir . collin hay contra magistrats of elgin . eodem die . collin hay insists in his pursuit against the magistrats of elgin , for payment of a debt due to him by a debitor , who escaped out of their prison . it was alleadged by the defenders , that the prisoner escapt vimajori , without their fault , in so far as on a sabbath , when the people were all at preaching , the officer keeper of the prison opening the door , a woman did cast a plaid over the officers head , and pull'd him at unawars to the ground , in the mean time the rebel escap't , whom the officer followed , and was wounded by several persons , whom he had lying darn't in the town , to assist him . the lords found the condescendence not relevant , and that the magistrats should have had their tolbooth better secured , then the same could be forc'd by one woman ; for there was no other alleadged present , before the prisoner got out , neither was it a competent time to open the tolbooth upon the sabbath , when the people could not concur in case of force . parson of morum . contra laird of beirford and beinstoun . iuly . . the parson of morum pursues reduction of a tack set by the former parson to beirford and beinstoun , as being granted without consent of the patron . the defenders alleadged absolvitor , because the tacks were set by the parson , who had commission from the earl of buckcleugh , patron to set tacks . ly , the tacks were set with consent of francis steuart , lord bothwel expresly , as patron , which francis steuart had right to the , patronage , in so far as this patronage , with the rest of the estate of bathwel , being forefault , the earls of buckcleugh , and , roxburgh got gifts thereof , but by the kings decreet arbitral , betwixt francis steuart and them , buckcleugh was ordained to denude himself of this patronage , and others in favours of this francis. the pursuer answered , first , that no commission granted by the patron to the parson himself , could be sufficient , because the intent of the act of parliament , requiring the consent of patrons , was not for any advantage , or interest of the patron , to his own behove , but to the behove of the benefice , that the incumbent might meliorat the same ; and so the patron was by his right of patronage , as curator ecclesiae ; but curators cannot authorize their minors by commission , at least the patron cannot give commission to the beneficed parson himself , no more then he could renunce the benefit of the act of parliament , and leave the parson to himself . . before the tack was set , the earl of buckcleugh , granter of the commission was dead , & morte mandatoris perimitur mandatum . as for francis steuarts consent , he was not patron , not being infeft ; but the kings decreet arbitral , imported only a personal obligement for buckcleugh to denude ; so that if buckcleugh thereafter should have consented to another tack , that would have been preferred . the lords found that member of the alleadgence , of buckcleughs , being dead before the tack , not relevant , to annul the same , as depending on his commission ; but decided not the first point , whether commission could be granted by the patron , to the parson himself ; but found the last member relevant , to defend the tack ; for the right of patronage , being jus incorporale , might be transmitted by disposition , without infeftment , and albeit buckcleugh was not formerly denuded , even by disposition , so that if he had consented to another right , that , as more formal , would have been preferred , yet , there being no competition , the parson cannot quarrel the want of the patrons consent upon that ground . isobel tosh contra david crookshank . eodem die . isobel tosh pursuing reduction of a decreet , pronunced in foro contradictorio , and in presentia , on this ground , that it was extracted by the clerks unwarrantably , contrair to what was done by the lords , which they offered to prove by the oaths of the advocats on the other side . it was answered , this were a ground to reduce all the lords decreets , in foro . yet the lords sustained the reason to be proven , as said is . corbet contra sterling . eodem die . corbet of concorse pursues a spuilzie of certain goods out of his house at glasgow , against william stirling , who alleadged absolvitor , because he had lawfully poinded them from his debitor , in whose possession they were . the pursuer answered , that he offered him to prove , that he had disposition of these goods from that partie , from whom the defender alleadged to have poinded them , and an instrument of possession thereupon ; and that he had payed mail for the house where they were several years , and still when he came to glasgow he did reside in the house , and made use of the goods . the defender answered , that his defense did yet stand relevant , because the condescendence makes it appear , that the pursuers right was from the defenders debitor , and any possession he alleadges might be simulat ; and the defender in fortification of his legal execution , offered him to prove , that his debitor remained in the natural possession of the house , and made use of the goods , as his own goods , and so was in natural possession thereof , whereby he might lawfully poynd from him . the pursuer repeated his reply ; and further alleadged , that one of the baillies of glasgow alleadged that they were his goods , at the time of the poinding , and offered his oath . the defender answered , that that baillie was neither the pursuers servant , neither had commission . the lords found the defense for the poynder relevant , and more pregnant then the condescenders alleadgence , and repelled that member of the duply , anent the baillies offering of his oath . cranstoun contra wilkison . iuly . . in a pursuit betwixt cranstoun and wilkison ; the defender being conveened as heir to his father , who was vitious intrometter with the pursuers debitors goods and geir . the lords having of their own proper motion , taken this passive title to consideration , as to this point , whether vitious intromission , as it is an universal passive title , died with the intromettor , or if it might be pursued against his representatives , they ordained the parties to be heard thereupon . which being reported this day , the lords found , that no person● as representing a defunct , could be lyable universaliter , upon that defuncts vitious intromission , but only for the true value of his intromission , and that either by action or exception ; upon this consideration , that albeit ●uch titles have been oft times libelled , and sometimes sentence thereupon , when none opposed ; yet there had never been a decision , nor interlocutor for it ; and that the passive title being poenal , sapiens naturam delicti , non transit in haeredes delinquentis in quantum penale ; for they thought it were of dangerous consequence , if persons might be lyable , not only to their immediat predecessor , but to their goodsire , grandsire , or fore-grandsires , vitious intromission ; but if the vitious intromission had been established against the defunct , in his own time , it would be sufficient against all his successors : otherways after his death , they could not be put to purge the vitiosity . or to shew the manner , or the warrand of his possession . but it was not determined , if action had been intented against the defunct , and he dyed before sentence , whether his heir would be lyable , there being different cases as to that point , which required different considerations● as if the defunct dyed after probation , or if after litiscontestation , when at least the particulars were condescended on , and the defunct compearing , alleadged nothing to purge : or if the pursuit were de recenti , and not long delayed , but the defunct dyed , the pursuer doing all diligence ; or if diligence were not used , but the matter lay over ; in which case , it seems litle respect could be had to the intenting the action only ; and it would be as litle questionable , that if probation were led , the defunct compearing , it would be as valid against him , as if sentence were obtained , the midle cases are more dark : but none of them were comprehended in this decision . iames thomson contra binnie . eodem die . there being a decreet obtained against binnie , his creditors finding him at linlithgow , secured him , and he found two burgesses caution as law will , who being conveened for payment of the debt , alleadged absolvitor , because they were only in common form obliged as cautioners as law will , which doth not import judicio sisti , & judicatum solvi , but judicio sisti , aut judicatum solvi . ita est , they sisted the party for whom they were cautioners , and put him in the provosts hands , who put him in ward , and protested to be free conform to an instrument produced . it was answered , non relevat , because they only sisted him judici , but not judicio ; they ought to have presented him in the court , when that cause was called ; and the pursuer was not obliged to know , or take notice what they did otherways , which might be by way of collusion . the lords found the alleadgence relevant , for there was no collusion condescended on , providing the defenders prove by the witnesses , insert i● the instrument , that it was so acted : for they thought , that if the cautioners put the debitor in ward , at any time during the process , the pursuer was not prejudged ; for if he insisted in his process , and upon not presenting of the defender protested , the cautioners would either then alleadge that he was in prison , or otherwayes it would import collusion . mr. iohn hay contra sir iames dowglas . eodem die . mr. iohn hay of haistoun , and sir iames dowglas having both rights of appryzing of the estate of smithfield , did agree , that sir iames should have three parts , and mr. iohn one , and did obtain a decreet at both their instances for removing a tennent , from some aikers ; but sir iames laboured and did sow the whole ; mr. iohn did thereafter sow as much corn upon the sown land , as would have sown his quarter , and now pursues an intrusion against sir iames , who alleadged absolvitor , because mr. iohn was never in natural possession , and offered to give the . part of the rent the aikers payed before . the pursuer answered , that the removing of the natural possessor was equivalent , as if mr. iohn had been in natural possession of his quarter ; and therefore the offering to him the rent was not sufficient , yet he was willing to accept the rent for this year , so as sir iames would devide for time coming . the lords found that in this process they could not compel sir iames to devide , but sustained the process , ad hunc effectum , that mr. iohn should have the . part of the cropt , paying sir iames the expences of labourage . dam margaret hume contra crawford of kerse . eodim die . dam margaret hume having charged the laird of kerse , who was cautioner for the earl of lowdoun , for her liferent , that she had out of the estate of lowdoun . he suspends , and alleadges that the charger ought to assign him , seing the bond wants a clause of relief , whereby he will have difficulty to have relief of the other cautioners bound . the lords found that they could not compel the charger to assign , but in so far as of her own consent she would . canna contra eodem die . there was a disposition of some tenements in dumbar , containing this provision , that the buyer should pay such a sum of money● to a creditor of the sellers , under the pain , and penalty , that the said disposition should be null . infeftment followed upon the disposition , and the land is now transmitted to singular successors , who pursuing for mails and duties . it was alleadged for the creditor by the reservation , that this reservation being a real provision , the creditor must be preferred to the mails and duties , ay and while the sum be payed . it was answered , first , that this provision was neither in the charter , nor seasine , and any provision in the disposition , could only be personal , and could not affect the ground , nor singular successors ; seing no inhibition , nor other diligence was used on it before their right . ly . albeit it had been a provision in the investiture ; yet it could have no effect against the ground ; which can●not be affected but by an infeftment , and upon a provision , neither action , nor poynding of annualrents , nor mails and duties could proceed . it was answered , that real provisions must necessarly affect the ground , and there can none be more real than this , not only being a condition of the disposition ; but also containing a clause irritant . the lords having first ordained the infeftment to be produced , and finding that the seasine proceeded upon the precept in the disposition , without charter , being within burgh , the lords found that the provision could give no present access to the mails and duties , until the clause irritant were declared ; or that it were declared , that they should have like execution , by vertue thereof , against the lands , as if it were in the hands of the first buyer , which the lords thought would operat , but had not the occasion here to decide it . iohn scot contra sir robert montgomery . iuly . . john scot pursues sir robert montgomery , as vitious intrometter with the goods and gear of sir iames scot of rossie , to pay a debt due by sir iames to the pursuer . the defender alleadged absolvitor , because , any goods he intrometted with , were disponed to him , for onerous causes , by the defunct , and delivered conform to an instrument of possession produced . it was answered , that the disposition bears , horse , neat , insight , plenishing , and all other goods and gear , which cannot be extended to any thing of another kind , nor of greater value , as current money , jewels , silver-plate , chains , &c. which never past by such general clauses , unless it be specially disponed . it was answered , that albeit there had been such moveables , and the defender had intrometted therewith , though another having a better right , might evict the same ; yet the defender had a probable ground to intromet , which is sufficient to purge this odious passive title . the lords found the disposition and delivery relevant , to purge the vitiosity . normand livingstoun contra lady glenagies . iuly . . normand livingstoun having appryzed the lands of glenagies , pursues the tennents for mails and duties , wherein the lady compeared , aud alleadged , that she ought to be preferred , because she is infeft in a liferent in the lands by her contract of marriage . it was replyed , that the lady and her husband , for all right that either of them had , had given a right to their cautioners to uplist the mails and duties of the lands in question , for payment of debts , and this debt particularly , whereon this appryzer proceeds ; with power also , to the cautioners , to dispone any part of the lands for payment of the debts ; which the lady ratified judicially , and which now excludes her from hindring any of these creditors to get payment . it was answered for the lady ; first , that this right was but a factory , or commission , and so expyred by the lairds death . ly , it was only in favours of the cautioners , for their relief ; but the creditors had no interest to alleadge thereupon . ly , the cautioners were never distrest ; and it was a mistake ; being to them as creditors in the sum ; not being so in effect . the lords having considered the commission , and that it buir not only the lady to consent , but for all her right , to grant commission , and that , not only it was in favours of the cautioners , in case of distress ; but also in favours of the creditors : bearing , to be for payment of the creditors : therefore they found the same relevant against the lady ; to exclude her infeftment , ay and while the debts were payed . but this occurred to the lords , that if the lady could condescend , that by the creditors , or cautioners fault , in not making use of this commission , the laird was suffered to continue in possession , so that if they had used diligence , the debts would have been payed , in whole , or in part , and the ladies liferent disburdened , pro tanto ; they would find the same relevant . patrick keith contra laird lesmore , troup and others . iuly . . patrick keith having right of wodset , granted by the earl of marischal , pursues a reduction against the laird of lesmore , of a posterior right , granted by the earl to him ; which right was disponed to muiresk , who was infeft , and dispon'd to troup , who is present heretor ; who being all called , and litiscontestation made , and the cause concluded ; at the advising thereof , it was alleadged for troup , that muiresk was dead , and there could be no advising of the cause , till some representing him were called ; for as in initio , there could be no process against troup , the present heretor , till muiresk his author were called : so neither can there be any procedor now , till some representing him be called . it was answered , the pursuer declares that he insists against lesmores right principaliter ; against which only the reasons are sustained ; and as for muiresk , and troups rights , they will fall in , consequentiam● the lords found that the process behoved to be transferred against muiresks appearand heir , before it could be advised : for as the declaring that the pursuer insisted principaliter against the first right , would not have been relevant ab initio ; seing the law allows all mediat authors to be called , that they may defend the right , whether and reasons be libelled against their rights , or their authors ; which comes in the place of the old custom , of sisting process until the defenders warrand were called , and discust : so every author has alike interest , to object against the reasons . although libelled principaliter , against the first authors right . but the lords declared , that , seing the defender made this unnecessar delay , they would be more favourable in drawing back the reduction , ad litem motam , aut contestatam . sharp contra glen . eodem die . in a competition betwixt two compryzers ; it was alleadged , that the pursuer , who insisted for the mails and duties , his appryzing was extinct , by intromission within the legal ; which was offered to be proven by his pursuers author , his oath . it was answered , that his authors oath could not be received against a singular successor , standing now infeft ; for as the cedents oath is not receivable against the assigney in personal rights ; much less is the authors oath against the singular successor in real rights . it was answered , that before this pursuers right , res fuit litigiosa , in so far , as the pursuers author having before pursued mails and duties , in that process , the defender offered to prove by his oath , that the appryzing was satisfyed , whereupon litiscontestation was made , whereby res fuit litigiosa , and no posterior right could prejudge the defender . which the lords found relevant , and ordained the authors oath to be taken . fountain and brown contra maxuell of nethergate . eodem die . brown , as heir to mr. richard brown , who was heir to thomas brown pursued for exhibition . and delivery of a wodset right , granted in favours of thomas ; wherein the lords having sustained witnesses to be admitted to prove , not only the having of the writs , since the intenting of the cause , but the having them before , and the fraudful putting them away , which ordinarly is only probable by writ , or oath ; unless evidences of fraud be condescended on , in respect the matter was ancient , and the pursuer had long lived in england , now at the advising of the cause ; severall of the witnesses were found to depone , that the defender , before the intenting of the cause , not only had such a wodset right ; but was dealing to get the same conveyed in his own person , which importing fraud . the lords would not absolutely decern him to exhibite , but found that he behoved , docere quomodo desijt possedere , or otherwayes produce , and therefore ordained him to compear , that he might be interrogat , and condescend upon the particular writs . thomas ogilvy contra lord gray . iuly . . thomas ogilvie pursues the lord gray , as behaving himself as heir to his father , by intromission with the mails and duties , of the lands wherein his father dyed infeft : as of fee ; for payment of a debt of his fathers ; who alleadged absolvitor , because any intromission he had , was by a warrand , and tollerance of sir george kinnaird , who stood infeft in the lands , upon a gift of recognition . it was answered , non relevat , unless the gift had been declared , before the defenders intromission ; because the gift would not have given right to the donatar himself , to possess . the defender answered , that the gift was declared before the intention of the pursuers cause , which declarator , albeit after intromission , yet must be drawn back to the gift , to purge the vitiosity of the defenders intromission , in the same way , that the confirmation of a testament will purge anterior vitious intromission , the confirmation being before the intenting of the cause . the lords found the defense relevant , to elid the passive title , seing any colourable . title is sufficient , to excuse the vitiosity : but did not find , that the declarator , before intenting the cause , had the same effect , as a confirmation ; because by constant customs , such confirmations , purge the preceeding vitiosity ; which has never yet been found in this case of an heirs intromission with the rents of lands : but the lords found the defender lyable for the single value of his intromission . alexander burnet contra iohnstouns . eodem die . john iohnstoun , having disponed the lands of fraster-hill , to gordoun of lesmore , whose right alexander burnet having appryzed , and by the appryzing , having right to the clause of warrandice contained in the disposition ; charges iohnstoun the disponer , to warrand the right against a posterior right , granted by him , to william iohnstoun , who had obtained first infeftment . it was answered , that the warrandice could have no effect , because there neither was , nor could be a distress , in so far , as in william iohnstouns disposition , iohn iohnstouns , and his wifes liferent were reserved , during whose life he could never distresse burnet . ly . it was burnets authors fault , that for many years , he did not take infeftment , having long right before the second disposition . it was answered , that iohnstoun himself could never object this delay , to excuse his fraudulent deed , of granting double dispositions , whereby parties become infamous by the act of parliament , . cap. . and unto the other point , albeit there was no present distress , yet there was unquestionable ground of a future distress , against which the defender could answer nothing , that could elid it , and who being but a naked liferenter , if no execution should pass upon the clause of warrandice during his lifetime , he would be fully frustrat . the lords decerned johnstoun the disponer , to purge the posterior disposition , granted by him , and found neither of the alleadgeances , in the contrair relevant . brown and duff contra bizet . july . . brown , and duff , having obtained decreet against bizet , for a sum due to umquhil andrew duff merchant in polland , bizet raises suspension , and reduction , upon this reason , that this sum having been in bonis defuncti , the charger could have no right thereto , till it were established in their persons , by a confirmation in scotland , by the commissaries of edinburgh , ut in communi patria . it was answered , moveables sequuntur personam , and therefore , wheresoever the moveables be , they are regulat according to the law of the place where the defunct resides , and it is instructed by the testimony of the consul , and counsel civitatis regiae pusensis , that by the common law , and law of that place , moveables belonged to the wife , and bairns , and the pursuers were so cognosced by them , declaring the said clares brown wife , and the said duff , the only daughter of andrew duff , and therefore they have sufficient right without confirmation in scotland , which appears by the act of parliament , james . cap. . par. . and it hath been still the custome so to do , and that it was so decyded , the . of feb. . lauson contra bastil kello . it was answered , that it was otherwayes decided , in the case of rob contra french , . feb. . and there was no reason , that these that lived out of the country animo remanendi , should be in better condition , then these that resided in the same , and behoved to confirm , and to pay the quot . the lords found , that the testament behoved to be confirmed , by the commissars of edinburgh ; for having considered the old act of parliament , they found , that the poynt there ordered was , to what judicatures the merchants going abroad to trade , should be lyable , and that such as went abroad , not animo remanendi , should be subject to the jurisdiction of that place , where their testament would be confirmed . ( viz. where they had their domicills ) but these that went out of the country , to remain , are excepted ; but nothing exprest where their testament should be confirmed ; and for the decision , the point in question , was not whether a confirmation in england was valid , but whether a confirmation without an inventar , was valid , and therefore , seing nothing was objected against the confirmation it self . the lords did justly find , that the wanting of an inventar , in an english confirmation , where that was the custome , did not prejudge it , neither is the case determined by the decision betwixt rob and french , in respect , that the executor having confirmed in england , and rather being confirmed by the legatars , would not own the confirmation , but renunced the same ; and therefore the lords found no consuetude , or decision in the case , but determined the same , ex bono & aequo . hellen millar contra watson iuly . . watson having obtained a decreet before the lords , against hellen millar , for the rent of some tenements in glasgow . she suspends , and raises reduction , on these reasons . first , that the decreet was null , as being ultra petita , in so far as the half of the duties was only lybelled , and the whole was decerned . dly , that watson's right was , as heir to watson , who was first wife to brown , who stante matrimonio acquired this right to him , and her , and the one half to her heirs , and the other to his , which was a donation betwixt man and wife , revocable , and revocked by the infeftment granted to hellen millar , in liferent , his second wife . it was answered , that the decreet being in foro contradictorio , was irreduceable . dly , that the right was not granted by the husband to the wife ; but acquired from a third partie . the lords reduced the decreet , finding that it was visibly extracted by error of the clerks , being ultra petita , and therefore sustained the second reason , albeit it was omitted , that it was a donation betwixt man and wife , being acquired to the man and wife ; and so presumed to be by his means which is equivalent , as if he had been author , unless that watson could condescend , that it was by the wifes means . gavin hamiltoun contra duke hamiltoun and bishop of edinburgh , eodem die . gavin hamiltoun , as assigney by the collector of vaccand stipends , charges the parochiners of craufoord , compearance is made for the bishop of edinburgh , alleadging , that this was a patrimonial kirk of the bishoprick of edinburgh , and so was not comprehended in the late act of parliament , anent vaccand stipends . the lords repelled the defense , and preferred the collector of the vaccand stipends ; for they found the act was general , without any such exception . mr. john thomson contra mckitrick , eodem die . mr. john thomson pursues m●kitrick , for reduceing of an infeftment of some tenements in dumfries , upon an appryzing , on these reasons ; first , that the appryzing was null , proceeding upon a bond without requisition , or charge ; without which , the heretable bond could not become moveable . dly , infeftment , being within burgh , was not given by the baillies , and town clerk. dly , that it was neither registrate in the town books , nor in the register of seasings of the shire . it was answered , to the first , that the bond bare no clause of requisition , but bore on the contrare to be payable , without requisition , and so , as moveables the defender might have poynded therefore , without charge , so might lands be appryzed ; to the second , there being no magistrats , nor town clerk in office at the time of this seasine , and the defender being an appryzer , necessitat to do diligence , took seasine by the sheriff clerk , which was necessar , and sufficient : to the third , the act of parliament requires no registration of seasines within burgh , and albeit , they be ordinarly to be found in the town books , yet if that should be neglected , they would not be null . the lords repelled the first reason , and found no necessity of a charge : and they had formerly repelled the second reason , in respect of the answer made thereto , and did also repell the third reason . earl of southesk contra marquess of huntlie . iuly . . the earl of southesk , and the late marquess of argyl , being cautioners for the late marquess of huntly , for the tochers of the daughters of huntly , they got an infeftment of the lands of badzenoch , for their relief , bearing , that according as they should be distrest , they should have access to the rents of the lands , in so far as might pay the annualrent of the sum , which they should be distrest for . whereupon they were infeft in anno . and thereafter southesk was distrest , in anno . whereupon , in anno . he pursued an action of maills and duties , upon the said infeftment of relieff against the said lord argyl , who was in possession ; and my lord argyl having long before granted an bond of relieff to southesk , he used horning , and caption thereupon , in anno . and in anno . he used inhibition upon the said bond against argyl , who in anno entered in a new contract with southesk , whereby , in corroberation of the first infeftment , he granted him a wodset of the lands of enzie , with a back-tack , by vertue whereof , southesk uplifted several years of the back-tack dutie . southesk now pursues the marquess of huntly , and his tenents , for declaring of his right , and payment of the maills and duties . it was alleadged for the defenders . first , absolvitor , because the marquess of argyl hath been retoured , to have possest the lands of badzenoch , peaceably , by the space of years before his forefaulture , which was in anno . conform to the act of parliament . by vertue thereof , this marquess of huntly , as the king's donatar , to the forefaulture , in so far as concerns the estate of huntly , has undoubted right , and needs not dispute what right southesk had , before the five years . it was answered , for the pursuer . first , that the act of parliament , , ought not now to take effect , because , by the late act of parliament . seasine and reversions are appointed to be registrat , otherwise they are null , and therefore the ground of the act of parliament . viz. the abstracting of evidents ceasing , the said act it self must also cease . dly . the said act can only take place , where it is not constant , what right the forefault person had , but that he was repute to be the ancient heretor of the lands , but where the forefault persons right is known , to have been beations compryzing , or this conjunct right , granted to him● and the pursuer , for their cautionrie , presumptio cedit veritati , and the right must only be holden to be such a right as truly it was . dly . the five years possession being in effect a prescription , in favours of the king , and his donatar , whatsoever would interrupt any other prescription ; must interrupt this ; as if within the five years , the pursuer had intented a reduction of the forefault persons right ; or an action for maills and duties , or had required for his sums , and charged thereupon , all these would be sufficient interruptions , against this quinquennial possession , and would take away the presumption of collusion , or abstracting . thly , the five years possession , by the act of parliament bears , expresly , to be peaceable , so that if it was turbata possessio , it would not be enough , and being once a troubled possession , by any legall interruption , after the said interruption , that subsequent possession ceases not to be a troubled possession ; though there be no furder interruption , within the years , because interruption once used , endures for . years . ita est , argyls possession was troubled , by pursuits , to compt for the maills and duties of these lands , upon this right , and that within a year , or two , before the five , and likewise within the . year , the marquess of argyl did corroborat this right , and in corroboration thereof granted wodset of the lands of enzie , for the sums accummulat , by vertue whereof , the pursuer , within the . years , was in possession● by uplifting the back-tack dutie ; which being a cumulative right , possession thereon is valid , for both . the defender answered , that his defense upon the act of parliament stood valid , notwithstanding of all the replyes , because the act is clear , and unrepealled , that . years peaceable possession of the forefault person , gives the king unquestionable right , it being retoured by an inquest , as now this is . and as to the troubling of the possession , no deed , done before the years , can have any effect , because , as the years cut off the most solemn anterior rights , much more a citation , or other interruption , and as to the interruptions , within the . years , they are only two , one is an inhibition against argyl , which proceeds not upon this infeftment , but upon a personal obligement , by argyl , to relieve the pursuer ; neither does it at all relate to the possession , nor any other action ; but only as an inhibition , prohibits alienation . and as for the contract of wodset with argyl , it is post commissum crimen , and so cannot prejudge the donatar . it was answered , that albeit the forefault persons deeds being voluntar , post commissum crimen , cannot be effectual ; yet where it is upon a cause anterior to the crime . viz. argyls intromission , by the infeftment of relieff● and the distress occurring against the pursuer after the crime , and he having pursued argyl for compt and reckoning , in anno . does not constitute any new voluntar● right , nor can it be any way collusive , being for an anterior cause ; and after a pursuit : and therefore it must work this much , to show , that the years was interrupted , and in the course thereof , both the pursuer , and forefaulted person acknowledged this right in question . the lords found the reply relevant , upon the deeds of interruption , alleadged by the pursuer , joyntly , to elid the act of parliament . mr. iohn harper contra his vassall . iuly . . mr. iohn harper , pursues a declarator of non-entry , against his vassall , who alleadged that he was only lyable for theretour maills , till the decreet of general declarator was obtained : it was answered , the common custome was , that from the citation in the general declarator , mails and duties were due in the special , because the general declarator , declares the non-entry since the date of the summons , and so the mails and duties are not due from the date of obtaining the decreet , but from the years decerned therein , which is from the date of the summons . the lords found the mails and duties due since the time of the citation , and not only since the time of the sentence . earl of southesk contra marquess of huntly . iuly last , . earl of southesks cause mentioned iuly last , was this day advised , as to another defense . viz. that my lord argyl had right to beatouns appryzing of the estate of huntly , which was long anterior to the pursuers infeftment , and whereunto huntly hath right , as donatar to argyl's forefaulture . this coutract of the cumulative wodset , being granted , in anno . it was answered , that beatoun , before he was infeft upon that appryzing , had renunced all benefit of the appryzing , and discharged the same , in so far as it might be prejudicial to the pursuers right ; which is presently instructed . it was answered , that renunciation was but personal , and was never registrat ; and so could not be effectuall against any singular successor ; much less against the kings donatar , having a real right . it was answered , that appryzings are not of the nature of other real rights , but they may be taken away , by intromission , payment , or discharge of the appryzer , and there needs no resignation , nor infeftment . it was answered , that albeit , by the act of parliament . appryzings may be taken away by intromission , and that it hath been extended to payment , yet never to such personal back-bonds . the lords found the appryzing to be taken away , by beatons back bond , renuncing the same , in so far as concerns this pursuer ; and found the same relevant against the donatar . thomas crawfoord contra town of edinburgh . eodem die . thomas crawfoord , having gift of ultimus haeres of a person , to whom the town of edinburgh was debitor , pursues for payment thereof . the defender alleadged no process , till the gift were declared . the pursuer answered , no necessity of a declarator in this case , more then in a gift of recognition , and waird , and that there was no person that could be particularly cited . the lords found the defense relevant , that this gift , behoved to ●e declared albeit it were but upon a citation generally against all and sundry at the mercat cross. sir lodovick gordon contra sir iohn keith . eodem die . sir lodovick gordon , being assigned to a sum due to sir robert farquhar by sir iohn keith , pursues sir john , for payment , who alleadged absolvitor , because he had right to the sum himself , as donatar to sir roberts escheat , and that the sum was moveable , albeit it bare annualrent , in so far as the term of payment was not come . it was answered , that sums were heretable , as to the fisk , by the clause of annualrent , and the only exception was , that if the term of payment of the annualrent was not come , the same was moveable ; and nothing in relation to the term of payment ; if the annualrent was come due , before the rebellion . the lords found , that the coming of the term of payment of the annualrents made the sum to become heretable , as to the fisk , and therefore repelled the donatars defense . merchants in dundee contra spruce englishman . november . . some merchants of dundee having sold a considerable quantity of winesto one spruce , an englishman , they pursue him for the price , and because , he disappeared , and no body came to receive the wines , they supplicat the lords , that they would give warrand to them , to sell the wines , least they should perish , and to be lyable only for the best price they could get for them : they did also represent , that spruce had a factor in edinburgh , who being cited by a macer , did not appear . the lords refused the supplication , and found , that the day of the appearance of the summons , not being come , and the englishman , neither being present , nor oblidged to be present , they could do nothing against him , more then if he had not be in cited , and so could not sequestrat , nor appoint the wines to be sold : but they lowed the partie to protest , that they had done all diligence● that the wines might not perish , whereof the lords would take consideration in any process that should occure . thomas canham contra iames adamson . november . . james adamson , having disponed a tenement to ioseph iohnstoun , who married his daughter , in conjunct-fee , and the heirs betwixt them , which failzing , to devide between their other heirs , in the disposition there was expresly this clause , providing that the said joseph , and his foresaids make payment to the said james adamson , or any he shall name , the sum of six hundred pounds , wherein , if he failzie , the said right , and disposition shall expire , ipso facto . in the infeftment the former clause was repeated , but not the clause irritant . this canham appryses the land from joseph johnstoun upon joseph's debt , and being infeft , did pursue james adamson for removing , who objecting the proviso , was notwithstanding decerned to remove . now he pursues for the maills and duties , during his occupation . james adamson alleadges that he ought to have the lib. because he had disponed with that provision . it was answered , this was but personal , to pay , and could never oblidge a singular successor ; and all the pursuer could do , was to proceed upon the clause irritant by way of declarator . the lords , in the end of the last session , having only seen the disposition containing the said clause , but not the infeftment , repelled the defense , but reserved the declarator : but now having seen , that the proviso of payment was in the infeftment ; the cause being so favourable , a person disponing to his own daughter , and good son , and the disponer yet in possession , they did without multiplying furder process , sustaine it by exception . george shein contra james chrystie . november . . george shein , having pursued umquhil david chrystie , as charged to enter heir to james chrystie his father , for payment of a debt of his fathers , david renunces to be heir , whereupon george obtained decreet , cognitionis causa ; and david being now dead , he pursues james chrystie , as now appearand heir to his debitor , for adjudication of an annualrent , as belonging to the defunct debitor , out of the lands of bassilie . it was alleadged for the defender , absolvitor , because that annualrent was but base , never cled with possession , and the defender stands validly infeft , singulari titulo . the pursuer answered , that the defense is not competent hoc loco , when the pursuer is but suo periculo , craving adjudication of his debitors right , and cannot be forced to dispute the same , till after adjudication , he use diligence for getting of the same ; but this defense will be competent , whensoever upon his adjudication , he shall pursue . the defender alleadged a pratique betwixt s●haw of sornbeg and the lord forrester , wherein forresters publick infeftment was excepted in the adjudication . yet the lords shewed no inclination to follow that pratique , and therefore repelled the defense , and adjudged . mr. iohn abercromie contra anderson . eodem die . mr. iohn abercromie as assigney having pursued anderson , as debitor for the debt assigned : he alleadged no process , because the assignation was posterior to the date of the summons and executions ; so that the assignation , being his sole title , the process could not be sustained . it was answered , that the defender had no prejudice , and that the cedent concurred . it was answered that the summons was not in the cedents name , and so his concourse could operat nothing , so that the decreet thereupon would be null : for in the like case , the lords , last week , in the cause betwixt david hamiltoun and iohn kennedy and symintoun , reduced an appryzing led tvventy years since , because the appryzing proceeded upon a charge to enter heir ; and some of the debts vvere assigned to the appryzer , after the date of the charge , as to which the lords found the appryzing null . the lords sustained the defense , and found no process , and had respect to the said decision of reduction of the appryzing , which they found to be , as is r●a●ed , though it was alleadged that after so long time , an appryzer was not oblieged to produce the letters of appryzing , or charge to enter heir , or executions ; yet seing de facto these were produced , and deduced in the appryzing , and mentioning the dates as aforesaid , the same was reduced pro tanto ; but there was no debate reported , whether it should stand pro reliquo ; or how far it should extend , seing the appryzer , as to the rest , offered to prove it satisfied by intromission . alexander downy contra robert young. nov. . . umquhil alexander downy granted an assignation to his oye alexander downy , of tvvo bonds , vvho finding , that after his goodsires decease , mr. iohn hay vvas confirmed executor to his goodsire , and had given up these bonds in his inventar , but had not recovered payment : he confirms himself executor , ad non executa , to his goodsire , and pursues the debitors for payment of the bonds . compearance is made for robert young , who alleadges that he is executor da●ive to mr. john hay , vvho execute downies testament , by obtaining sentence for payment of their bonds ; so that the bonds vvere no more in bonis of alexander downie , but of mr. john hay : and that the testament being execute by decreet there could be no executor , ad non executa to downie , the first defunct . it was answered that the testament was not execute by a decreet , unless the executor had obtained payment ; especially where the executor was a meer stranger , and was neither nearest of kin , creditor , nor legatar . the lords found the testament of downie execute by hay , by the sentence obtained in hayes name ; and therefore found that alexander downie , the oye , his confirmation as executor , ad non executa null . it was further alleadged that downie being not only executor , but assigney by his goodsire ; the assignation , though it had been but a legacy , would have been sufficient against mr. iohn hay , who is the cedents executor : and therefore is also sufficient against young , who is the executors executor , and so represents the first defunct , downie the cedent . it was answered , that young was not only legitimo modo the executor , but he is also creditor of the first defunct , downie , in so far as he is donatar of the escheat of iohn hilstoun , and thereupon has obtained declarator , and so is in the place of iohn hilstoun , to whom umquhil alexander downie was debitor , by his ticket produced , whereby downie acknowledges that he had in his hands , goods worth pounds , belonging to him , and hilstoun , in copartinary ; and obliged him to be comptable therefore ; which is anterior to the assignation , granted to downies own oye for love and favour ; whereupon he hath reduction depending against the assignation , as in fraudem creditorum . it was answered that the ticket , in relation to the copartinary , was not liquid , bearing only an obligment to be comptable , with express exception of desperat debts , and others . the lords found , that in respect the debt was not liquid , downie the assigney ought to be preferr'd , and get payment , but ordained him to find caution , that in case young prevailed , he should refound . william blackwood contra adam purves . nov. . . adam purves pursues reduction and improbation of two bonds , alleadged granted by him to ianet baxter , and of an appryzing led thereon , against certain tenements in edinburgh , belonging to him , and craved certification contra non producta . william blackwood , to whom by progress , the right is now come , produces the appryzing , and the extract of one of the bonds , whereupon it proceeded , and alleadges no certification against the letters , and executions of the appryzing after so long time ; the appryzing being led in anno . and no process of reduction rais'd , till after the year . which the lords found relevant . likeas , he further alleadged , no certification for not production of any of the principal bonds , because they were registrat in the registers of session , and the principals were lost . the pursuer answered , that there were pregnant points of falshood , viz. purves having gone and left the kingdom in anno . and having been a souldier abroad , till the year . and these bonds and the appryzing thereon , both in one month , and the bonds granted to a woman who had no such estate , but the servant of a waiter , of an evil fame : and one blair a witness who was hang'd for falshood . the lords refused certification for not production of the principal bonds , but prejudice to the pursuer to insist in his improbation , by these or other evidences , by the direct manner , but they admitted certification against that bond , the extract whereof was not produced : yet conditionally to a time , that the defender might upon the adminicle of the appryzing , insist to prove the tenor. the parochioners of port supplicant . decem : : : the parochioners of port having built a manse upon the gleib to their minister , where there was no manse before , and having valued the same according to the late act of parliament , and stented the same upon the parochioners and others ; they did supplicat the lords for letters of horning , conform to the stent roll , in respect that the said late act of parliament , being the twentieth act of the third session of the last parliament , bears no warrand for horning . the lords ordained letters of horning to be past . sir alexander vrquhart contra sherem . eodem die . in anno : sir thomas vrquhart of cromerty gave a security of a house and some lands , and a salmond-fishing near bamff , for : merks : and in anno : there was : merks eiked and a back-bond relating to the first wodset renounced , and a full possession granted on both : there is a clause of redemption and requisition upon payment of the principal sums , and annualrents resting for the time . sir alexander vrquhart pursues sherem , as now having right to the wodset , for compt and reckoning : who alleadged absolvitor , because this being a proper wodset , wherein he had the full possession , hazard of the profits was not comptable , especially , seing the chief part of the wodset was a fishing , which was most uncertain ; and though de facto he happened to get much more then his annualrent yet it is no usurary wodset , seing he might have losed all . the pursuer replyed , that by the saids clauses of redemption , and requisition , he was not only obliged for the principal sums , but for the bygone annualrents , resting unpayed ; so that the wodsetter had no hazard : and therefore it is no proper wodset , and he is comptable . the defender answered , that the clause was only adjected ex stylo , for it did not bear , that what annualrent should be resting over and above intromission , should be consigned , but the whole resting annualrents ; or at least it had been adjected , in respect of the back-bond , restricting the first wodset : or in case the wodsetter had been excluded from possession . the lords found the defender comptable in respect of the saids clauses , but there occurred to themselves this question , whether the superplus more then the annualrent should compense ? and abate the principal sum at the time of the intromission , or only now , whereanent the lords were of different opinions , many thought that when the meaning of the parties was not full , and express , that should be followed , which is most ordinar amongst provident pers●ns , hardly could it be thought that any would take a wodset upon these terms to draw out the principal sum , with excress yearly , but the lords reserved that point to be considered , while it appeared whether there was any excress above the annualrent . monteith contra laird of gloret . dec : : : in a competition between monteith and the laird of gloret . it was alleadged for monteith , that he ought to be preferred to the sums in question , because glorets assignation was obtained by hamiltoun of kinglass , and was lying by him blank in the assigneys name , and by him filled up with glorets name , and delivered to him , so that kinglass being his true author , any discharge granted by him while the bonds were blank , and in his power , was relevant against gloret his assigney , ita est kinglass , while or before the bonds were in his power , did equivalent to a discharge , viz. oblieged himself to pay this sum , and relieve the principal debitor thereof ; and instead of the discharge he took this blank assignation , filled up by him in glorets name . ly , the charge though in glorets name , is to kinglass's behove : and if he were charging his obliegment to pay the debt , would exclude him : and therefore must exclude the charger . it was answered that gloret was in bona fide , to take this assignation , knowing nothing of the back-bond ; and that an obliegment to satisfie the debt , was not equivalent to a discharge : neither is the having of the assignation , though blank , equivalent to an assignation , unless the name of kinglassie had been filled up and intimat . the lords having taken glorets oath before answer , wherein he acknowledged , that he got this assignation from kinglassy , and payed no money for it , and that it was on these terms ▪ kinglassie being owing him a greater sum , he was to allow what he got by this assignation , in part thereof , but deponed he knew not if it was blank when kinglasse had it or not . the lords found that the assignation being accepted by gloret in terms aforesaid , that it was but a corroborative security , and so found the assignation to kinglassies behove , and found the back-bond relevant to exclude him , and therefore preferred monteith . sir george mckenzie contra fairholm . eodem die . sir george mckenzie advocat pursues a reduction of a bond granted by him as cautioner for his father , ( the bond is now assigned to iohn fairholm ) on these reasons . first , that the bond is null , as being done by a minor , being in his fathers family , and not being authorized by his father , as lawful administrator : and therefore in the same condition as a minor having curators , they not confirming such deeds are null , and may be reduced at any time , though they have not been quarrelled within the minors age of twenty five . ly , because curators being chosen as a security to the levity of minors , they cannot authorise the minor to the curators behove , but such deeds are null : so neither could the pursuers father authorize him to be cautioner for himself . the defender answered ; first , that albeit a father , as lawful administrator , and tutor to his children , excludes all other tutors , yet he is not curator after their pupillarity , because they may choose other curators , and that filij familias , in the civil law could not contract without their fathers consent . it was a special statute , per senatus consultum macedonianum , and not as curator . ly , the father cannot be lyable for his omissions by his unprofitable authorizing his children , for such actions would be contra pietatem & obsequium . ly , there is nothing more frequent in scotland , then sons to have a distinct estate , while in their fathers families , given by the father , or otherwise , whereof they have the full administration without authority . ly , whatever may be alleadged for children residing in the family of their father , yet that cannot be extended to children , acting by themselves , far from their fathers family : but the pursuer was so living , and acting at edinburgh , attending the tolbooth , and was majori ae●ati proximus , being past . the pursuer answered , that his reason stood still relevant , because by the law of scotland , a father is lawful administrator to his children , and is not ordinarly designed lawful tutor , but lawful administrator , which does not only endure during their pupillarity , but during their minority ; but at least , till they be married , or forisfamiliat ; or till they have a distinct subsistence or calling . and albeit the children be not residing in the family , yet they are in familia , so long as they are there , and not separat from the same , as the pursuer was : and albeit the son may choose other curators , if the father permit , or the judge think fit , and is not conveenable for his mis-authorizing , or omission , that infers only that he is only curator honorarius . the defender did furder alleadged , that the father had furder authorized , in so far as he subscribed the said bond , and so consented that his son should subscribe , and neither was the deed in rem su●m , but in rem credito●is . the lords found the reasons of reduction relevant , and repelled the defenses : and albeit many thought that the father subscribing with the son , was sufficient to authorize ; yet that it was not sufficient , being caution for himself , in rem suam but did not proceed to cause the parties condescend how near sir george was to majority , and what was his way of living . earl cassils contra tennents of dalmortoun and john whitefoord of blarquhan . decem : : : an action of double poynding , at the instance of the tennents of balmortoun , against the earl of cassils on the one part : and iohn whitefoord of blarquhan on the other , both claiming right to their multures . it was alleadged for the earl of cassils , that the lands in question being holden ward of him , is now in his hands , by reason of the ward of knockdaw his vassal , he had now right to their multures , and they ought to come to the miln of his barony , whereof these lands were pertinent , and shew his infeftment , containing the lands of dalmortoun per expressum . it was alleadged for iohn whitefoord , that he ought to be preferred , because that kennedy of blarquhan , the earls vassal , both of the lands of dalmortoun and blarquhan , had disponed to him the lands of blarquhan and miln of sklintoch , with astricted multures , used and wont : at which time blarquhan caused his tennents of dalmortoun , to come to the said miln of sklintoch , whereby the thirlage was not only constitute of the lands of blarquhan , but of dalmortoun . it was answered for the earl : first , that the thirlage of dalmortoun could not be constitute by the said clause ; because the lands of dalmortoun being no part of that barony , whereof the miln of sklintoch is the miln : but a distinct tenement holden of a distinct superiour : such a general clause could never have constitute a thirlage , unless the lands had been exprest . ly , albeit the servitude had been constitute never so clearly by the vassal : yet if it was without the superiours consent , it could not prejudge him by ward , or non-entry . it was answered for iohn whitefoord to the first , that the clause was sufficient to constitute the thirlage : and if it wrought not that effect , it was of no effect , because the hail lands of the barony were disponed with the miln , and neither needed , nor could be thirled : and therefore the clause of thirlage behoved to be meaned of some other lands . ly , vassals may lawfully constitute servitudes without consent of the superiour which are not evacuat by ward , or non-entry . ly , it is offered to be proven , that the earl consented to the right of the ●●lture , in so far as the lands of dalmortoun being appryzed from blarquhan by iohn gilmour , he assigned the appryzing to iohn whitefoord , who assigned or disponed the same to kilkerren : in which asignation , there was an express reservation of the multurs of dalmortoun to the miln of sklintoch : upon which infeftment the earl received kilkerren in these lands , who is author to the present vassal . the lords found the clause aforesaid in iohn whitefords charter not to infer a servitude of the lands of dalmortoun , not being therein exprest ; and holden of another superiour : nor no decreets nor enrolments of court , alleadged to astruct the servitude . and found also the second reason relevant , viz. that the earl as superiour , not having consented , was not prejudged by any deed of the vassals . but as to the third point , the lords found that the reservation in kilkerrens right , unless it were per expressum , contained in the charter subscribed by the earl of cassils , could not infer his consent ; albeit the charter related to a disposition , containing that clause , but if it were alleadged to be exprest in the charter : they ordained before answer , the charter to be produced , that they might consider the terms of the reservation . sir henry home contra creditors of kello and sir alexander home . decemb : : : sir henry home having appryzed the lands of kello , before the year . pursues the tennents for mails and duties : compearance is made for either creditors appryzers , who alleadged they ought to come in with him pari passu , by the late act between creditor and debitor ; because the appryzings being since the year . was within a year of his appryzings , being effectual by infeftment , or charge . it was answered ▪ that the act of parliament was only in relation to compryzings , both being since the year . and the pursuers appryzing being led before , falls not within the same . it was answered , that the act of parliament in that clause thereof in the beginning , mentions expresly , that compryzings led since . shall come in pari passu with other appryzings ; but doth not express , whether these other appryzings are since : but in that is general , and the reason of the law is also general , and extensive to this case . it was answered that the posterior part of that same clause , clears that point , both in relation to the appryzings , in whose favours , and against which the law is introduced , viz. that the clause is only meant the appryzings led since : shall come in pari passu , which must both comprehend these that come in , and these with whom they come in . the lords repelled the alleadgence , quoad other compryzings , and found that their compryzings could not come in with the pursuer , he having appryzed before the year . and charged before their appryzing . ianet thomson contra stevinson . decem : : : janet thomson pursues a reduction of a disposition made by her to stevinson , upon minority and lesion ; and also upon this reason , that the disposition was done within some few dayes after her pupillarity , and it being of land , ought not to have been done without authority of a judge , especially seing she had no curators . the defender answered to the first , there was no lesion , because the disposition bears a sum equivalent to the value of the land. to the second , non relevat . the pursuer answered , that the subscribing and acknowledging the receipt of money by a minor , cannot prove it self , but the minor is les'd in subscribing the same . the defender duplyed , that he offered to prove by witnesses , that the price was truely payed , and profitably employed . the lords found not the second reason of reduction relevant , the authority of a judge being only required to the alienation of lands made by tutors of their pupils lands . anna fairly contra creditors of sir william dick. december : : anna fairly alleadging that she obtained an assignation from umquhil mr. alexander dick , as factor for his father , in satisfaction of a sum due to her by his father , pursues for delivery of the assignation . the creditors alleadged that the assignation being in the hands and custody of mr. alexander the granter , it must be proven by writ , he being dead ▪ that it was delivered , and not by witnesses ; for there is nothing more frequent , then parties upon intentions , to subscribe bonds , assignations , and other rights , and yet do not , de facto , deliver them : or if they have been delivered , to satisfie them and retire them and if witnesses were admitted to prove the delivery , or redelivery of such writs , the lieges would be in extream unsecurity , contrary to our law , that admits not witnesses above an hundred pounds ; and therefore chirographum apud debitorem repeatum praesumitur solutum ; which presumption cannot be taken away by witnesses . the pursuer answered , that though this holds in bonds , where there is a debitor , and no other adminicle to instruct the debt ; yet this is an assignation , and the cause thereof otherwise instructed , and most likely to be truely done : and it is offered to be proven , that this assignation was delivered back to mr. alexander , to be made use of as agent for the pursuer . the lords refused to sustain this member of the probation , but because of the poverty of the poor woman , recommended the case to the creditors , to be favourable to her , and did forbear to write the interlocutor . hay of knockondy contra litlejohn . eodem die . hay of knockondy pursues litlejohn for the damnage sustained by him , by the fall of litlejohns house , called the tower of babylon , whereby the pursuers house , adjacent , was broken down . the defender alleadged ; first , the libel was not relevant , unless he had been required to find caution , de damno infecto , as is required by the civil law , whereby if that caution were not required , there is an express text in the title de damno infecto , that there shall be no action , but the party shall impute his loss to his own negligence . likeas we have two special statutes , concerning ruinous houses , which prescrive the method of preserving them , and making up the damnage , none of which being followed , the defender is not lyable . ly , whatsoever might be alleadged against the heretor of the said house , the defender is only an appryzer of a liferent-right , for a small sum ; and the liferenter was not obliged to repair a tenement manifestly ruinous , that could not be preserved , but with great expence and rebuilding : much less the appryzer who hath but a small sum on it . the pursuer answered to the first defense , that his libel was most relevant damnage upon any fault , being due and reparable by the law of nature : and as for the civil law , it hath no effect with us in this point , our custom neither giving nor requiring such caution ; much less refusing action , if it be neglected : and as to our own statutes , though they be very convenient wayes for securing of damnage , yet they are not exclusive , nor have they any clause , except in these cases , and in that method , damnage shall be irrecoverable . to the d , it was answered , the pursuer was not obliged to know , or enquire whether the defender was heretor or not : but he finding that he was a neighbour , behaving himself as heretable possessor , by uplifting the duties he did pursue him , and if need beis , offers him to prove , that he did require him to keep him skaithless , though he took no instrument thereon . the defender answered , that he was not obliged to take notice of such requisitions , not being solemn by instrument . the lords found the defender lyable , albeit there had been no requisition verbal or otherwise , it being proven that the ruinousness of the tenement that fell , was notour and manifest to the defender himself , whereby he was obliged , either to demolish the house , if it was not reparable , or to have quite his possession , to evite the imminent damnage of neighbours . lord colvil contra feuars of culross . decemb. . . the lord colvil as heretable bailzie of culross , having charged the lord kincairn and others for the taxation of their lands in culross , conform to the stent roll ; they suspended , and alleadged that the stent roll contained a fifth part more then the taxation . it was answered , and offered to be proven , that it was the custom of that and other benefices at their meeting of making the stent-roll , to add a fifth part for expenses and charges of ingathering the taxation . the defenders answered , that if any such custom were , it was against law , and against the liberty of the subject , who could be lyable for no payment , but by law , or of their own consent ; or if any such custome were , it hath been by the consent of the vassals , or at least they have not questioned the same , nor is there any ground for such an addition , for the kings officers being obliged by their office , to collect his majesties taxations , they can demand nothing of them who payed without process ; and if they be put to process , the lords will modifie such expences as they see cause . the charger answered , that such immemorial customes have the strength of law ; and that it was done with the consent of all the vassals who conveened ; and that it was the suspenders fault that they conveened not to make the stent roll , which should not put them in better case then they had conveened : or if they had conveened , and disassented , there is no reason , that the dissassent of a few should be preferred to the consent of the most part , who as they may vot in the stent roll , for the taxation it self ; in which the plurality carries : so must they for the necessary expences : and all that can be alleadged with reason is , that the lords may modifie the expences of a fifth part , if it be too high . the suspenders answered , that law authorized the feuars , as a court and judicature , to meet and stent , which implyes a power to the plurality , but there is no such warrand for expences ; as to which , the consent of a hundred cannot oblige the dissassent of one , or of one absent , and the absents have loss enough , that they have not a vot in their own stent . the lords sustained the reason of the suspension , notwithstanding of the answer ; and found that no expences , nor any thing more than the taxation could be stented , to have effect against these who consented not , but they would modifie expences , in case of suspension , as the cause required , but modified none in this case , because a fifth part was charged for , more then was due . lord newbeath contra dumbar of burgie . decemb. . . the lord newbeath having right from iames mcken , who had appryzed the lands of burgie , pursues reduction and improbation against young burgie and iohn watson ; and insists on this reason , that any rights they have are null , and fraudulent , being contracted after his debt , and the right granted to young burgie is null , as being but a base infeftment , not cled with possession , before the pursuers publick infeftment . the defender alleadged that his infeftment was cled with possession , in so far as his fathers liferent was reserved thereby , and his father possessing by vertue of the reservation , did validat his infeftment . ly , albert the fathers own possession could not be sufficient , yet the father having transmitted his right to watson , and watson possessing , the suspicion of ●●mulation ceased , and there is a disposition produced by the father to watson , which though it bear to be of the fee , yet can import no more , but to be of the liferent , seing the father had no more , neither needs it have an infeftment , seing it hath but the effect of an assignation to a liferent . it was answered , that if the father had expresly assigned his liferent , reserved in the base infeftment , it might have been the ground of a question , whether the assigneys possessing so , would have validat the base infeftment ? but since the father has not taken notice of the reservation , but dispones as heretor , it clears that he did not possess by the reservation , but by his own prior right . the lords found the reason of reduction and reply relevant , and that the fathers possessing by himself , or watsons possessing by himself , could not validat the base infeftment . charles cass contra mr. iohn wat. eodem die . doctor cass having taken infeftment of an annualrent , out of the lands of robertland , in name of cockpen and adam wat , charles cass as heir to the doctor , pursues mr. iohn wat , as heir to his father , for compt and reckoning of the mails and duties , and charges him with the hail rental being intrometted , or ought to have been intrometted with by him and his father , by vertue of the trust in their person ; and also adam wat took a gift of tutory to the pursuer , and so is lyable as his tutor . the defender answered , that his fathers name being borrowed on trust , could lay no obligation on him to do any diligence , but what he thought fit , seing by his back-bond he was obliged to denude himself , whenever the doctor pleased ; and the pursuer has reason to thank him for what he did , and not burden him with what he omitted , seing he had no allowance therefore : and as for the tutory , there was a multiple poinding all the time thereof , depending among five or six parties , pretending right by the dependence whereby the tutor was excluded . the pursuer answered , that the defenders name was not borrowed without his knowledge , but that he accepted thereof , and entred to possession ; and as an appryzer is not obliged to possess , but if he possess , must be answerable for the rents of the lands conform to the rental , so must the defender . the lords found the defender not lyable to diligence . by vertue of the trust , albeit he did possess , but ordained him to compt for his intromission , and to condescend what diligence his father did as tutor , that if he be found deficient therein , there might be an additional accompt to what he intrometted with . mr. iames cheap contra mr. iohn philip. decem. . . mr. iames cheap charges mr. iohn philip , to fulfil a minute of alienanation of the lands of ormestoun , sold by mr. iames to mr. iohn , whereby mr. iohn was obliged to pay merks , as the price , or to assign sufficient bonds therefore : he suspends , and offers to consign bonds , and amongst the rest , a bond of merks due by the town of edinburgh . the charger alleadged that he was not obliged to accept that bond , because at the time of the agreement , and subscription of the minut ; the charger particularly excepted the town of edinburghs debt , and the suspender declared , that it should be no part of the price , which he offered to prove by the writer and witnesses insert in the minute . the suspender answered , that witnesses were not competent in this case , where the words of the minute are not dubious , but clear and general of any sufficient debt , for if this were sustained , the alteration of the price , as well as the manner of payment , might be proven by witnesses . it was answered , that it was no way alike , nothing being here in question , but the manner of payment , and not the quantity of the price . the lords ordained the writer and witnesses to be examined before answer . ianet thomson contra stevinson . eodem die . in the reduction on minority , at the instance of ianet thomson contra stevinson . the lords ordained the pursuers mother to be received witness of her age , cum nota , there being a testificat already produced , and there being or years since the pursuers birth : after which time , it was not likely that others would remember ; but she was ordained to depon● who were witnesses at the birth and baptism , and these to be examined . corstorphin contra martines . decem. . . james corstorphin pursues a reduction of a disposition made by his fathers sister , in lecto . it was alleadged by martines , to whom the disposition was made , that he could not quarrel the same , because his father to whom he is heir , and the other brethren and sisters of the defunct had approven whatsoever testament , legacy or disposition , made or to be made by the defunct , of her goods and gear , debts and sums of money , and others whatsoever , that she had , or should have the time of her decease ; so that she having made this disposition , he cannot quarrel the same . the pursuer answered ; first , that the ratification in the terms foresaid , could not be extended to lands or annualrents , constitute by infeftment , there being no mention of lands , annualrents or heretage therein . ly , it could not be extended to any disposition , but legally made , and therefore not to dispositions on death-bed . the defender answered , that the ratification bearing expresly sums of money , did comprehend all sums , although infeftment of annualrent were granted for security thereof , which being but accessory to the sum , follows the same . ly , there could be no other effect of the ratification , if it were not to exclude the heir from quarreling thereof , as being in lecto , for if the same was made by the defunct in her leige poustie , it were valide and unquarrelable in it self , and albeit it bear not mention of death-bed , yet it expresses disposition of all goods , she should happen to have the time of her death ; so that if she had acquired rights after her sickness contracted , she might dispone the same validly by this ratification , and yet behoved to be on death-bed . the lords found this ratificatiou not to extend to sums whereupon infeftment of annualrent followed , which was carried but by one vote , and so they came not to the second point . william yeoman contra mr. patrick oliphant : eodem die . william yeoman having apprized the lands of iames oliphant , son to sir iames oliphant ; and mr. patrick oliphant having also appryzed the same , william insists on this reason , that mr. patricks appryzing was satisfied by intromission within the legal ; mr. patrick alleadged that his whole intromission could not be countable to satisfie his appryzing , because the two part thereof did only belong to his debitor , and the third part to dame geils moncrief , who had right to a terce thereof , and to whom mr. patrick was only lyable and countable , and for a part of the years he was her tennent , and had right from her . it was answered that the tercer had no compleat right , till she was served , and kend to her terce , which , being done after the years in question , the fiar might have possest the whole till her service , and might have forced the possessors to pay him , so the appryzer entring in possession of the whole , upon his appryzing , cannot pretend the right of the tercer , and his taking tack of her , was unwarrantable till she was served , and done of purpose , that his appryzing might not be fully satisfied , and so the legal might expyre , which is most rigorous and unjust , and offered presently to satisfie the tercer of her third . it was answered that the service whensoever done , is drawn back to the husbands death , and doth but declare , and not constitute the wifes right , like the service of an heir . the lords found that mr. patrick could not cloath himself with the tercers right , to cause the legal expyre ; but found the offer relevant , for besides the favour of the cause , the case is not alike with an appear and heir , whose right , though not declared , yet he continues in his predecessors possession , and none other hath any interest , but the fiar might possess the whole , and exclude the tercer till she were served . paul henrison contra laird ludquharn . decemb. . . paul henrison indweller in the island of helgilland , being at the mouth of the elve , fraughted to scotland by hamburgers , was taken by a privateer , and declared pryze at peterhead by the laird of ludquharn , admiral depute there , whereupon he addrest himself to the admiral court at leith , and obtained decreet for restoring of his ship upon compearance : ludquharn gives in a bill of suspension of this decreet , and to dispatch the stranger , because it was ordained to be heard upon the bill : ludquharn alleadged that the admirals decreet was unjust , because he offered him to prove by merchants in edinburgh , that helligilland is a part of the dominion of denmark , and albeit it be in the present possession of the duke of holstein ; yet he holds it of the crown of denmark , and as to that , he is subject to the king of denmark , and therefore the inhabitants of that island are in the state of enimity with the king , and so lawful pryze , it was answered , that the stranger hath produced a pass of sir william swan , the kings agent at hamburgh , bearing that he had taken tryal ; and found the ship to be free ; and it being notour and acknowledged , that this stranger is a subject of the duke of holstein , who is a prince of the empire , and in amity with his majesty , as is declared by a letter of the king to the lord commissioner , it must extend to all his present subjects , who are not oblieged to dispute how he holds this islands , or when he got the right thereof : and his pass bears him to be a natural subject of the duke of holsteins , and not of the king of denmark . it was answered , that the right of this island was only in impignoration , and only in possession of the duke of holstein within this ten year . the lords adhered to the admirals decreet , and repelled the reasons of the bill . tweeddies contra tweeddie . eodem die . umquhil tweeddie of having disponed his whole estate to his eldest son , at the same time , his son gives a bond to his mother and her heirs of six thousand merks , the mother being dead , the other five bairns pursues a declarator of trust against the heir , that this was the bairns provision , put in the name of the mother , and offers to prove the same by the wryter and witnesses insert . it was answered , that trust was not so probable , otherwise all rights might be inverted by witnesses , whose testimonies , our law hath restricted to an hundred pounds . it was answered , that much more was to be attribute to witnesses insert , upon whose testimonies the parties condescend , and confide , than to common witnesses . dly , albeit witnesses were not receiveable to prove trust alone : yet where there are strong presumptions concurring , they are admittable even to annul writs of the greatest importance , as is ordinarly used in the indirect manner of improbations ; and here are strong presumptions , viz. that the father , at the time of this bond , did dispone to the defender , his eldest son , his whole estate , without a reservation of his own liferent , or any other thing , and there were five children beside , who had no provision : so that albeit this bond be conceived to the wife , her heirs and assigneys , yet cannot be presumed to be intended to have fallen back to the defender as her heir . the lords in respect of the presumptions , were inclinable to admit the witnesses , but they ordained the pursuers before answer , to what could make a sufficient probation to adduce such witnesses as they would make use of for astructing these presumptions and the trust. iames hoge in edinburgh contra iames hoge in dalkeith . ianuary . . james hoge in edinburgh , pursues a declarator of redemption agaist iames hoge in dalkeith , who alleadged absolvitor , because the whole sum , contained in the reversion , was not consigned . it was answered , there was consigned the equivalent , viz. a decreet against the defender , for a liquide sum , which behoved to compense . it was answered , that reversions being strictissimi juris , compensations are not to be admitted therein : otherwayes wodsetters may be much prejudgeed by taking assignations from their creditors , and consigning the same , and frustrating them of their moneys , which they had designed for other creditors , and other uses . it was answered , that this was no extrinsick compensation , but a decreet founded upon an article contained in the contract of wodset . upon which consideration the lords sustained the order , and declared . earl of murray contra iohn hume . eodem die . the earl of murray pursues hume his tennent to find caution for his duties , or else to remove : who alleadged absolvitor , because the earl was debitor to him in a sum exceeding all the bygone rents , and this action hath no place , but when there are some years rent resting . it was answered , that the defender was at the horn , and his escheat taken , and so was manifestly , vergent ad inopiam . the lords would not sustain this member , unless bygones had been owing , but superceeded to give answer , till the compensation were proven . francis hamiltoun contra eodem die . francis hamiltoun having suspended a decreet , obtained against him for house-mails , on this reason , that his wife only took the tack , which could not oblige him . it was answered , that his wife keeping a publick tavern , was evidently praeposita huic negotio . which the lords sustained . another reason was , that the house became insufficient in the roof , and the defender before the term , required the pursuer to repair the same , which he did not ; and the neighbouring house , called the tower of babel , falling upon the roof , made it ruinous . it was answered , that was an accident without the pursuers fault , and the tennent ought to pursue these whose tenement it was that fell . the lords found the reason was not relevant to liberate from the mail , unless the suspender had abstained to possesse , but found it relevant to abate the duties in so far as he was damnified . oliphant contra hamiltoun of kilpoty . eodem die . william oliphant having obtained a decreet for poynding of the ground , against hamiltoun . he suspends on this reason , that he was neither decerned as heir , nor possessor , but as appearand heir to the heretor , and was never charged to enter heir . the lords repelled the reason , and found this action , being real , was competent against the appear and heir without a charge . william oliphant contra hamiltoun . eodem die . oliphant pursuing the foresaid poinding of the ground upon an annualrent . it was alleadged absolvitor from the bygones before the pursuers right , because his author was debitor to the defender in a liquid sum equivalent . it was answered , that the pursuer was singular successor , and no personal debt of his authors could infer compensation of a real right against him . the lords found that the bygain annualrents were moveable and compensable with any liquid debt of the pursuers authors . contra brand. ianuary . . chapman having left his pack in custody with brand , in dundee , about ten or twelve dayes after , brand opened the pack , and made use of the ware. the chapman now pursues him for a spuilzie , who alleadged absolvitor , because the pack was put in his hands for security of a debt due by the pack-man , and he being informed that the pack-man would not rerurn , did , by warrand of a baillie in dundee , cause four of the neighbours , inventar and price the ware. it was answered non relevat , for though the pack had been impignorat , the defender could not appryze it summarly , but behoved to take a sentence to poind the same . the lords repelled the defense . it was further alleadged , that there could be no spuilzie , nor oath in litem of the pursuer , because there was no violence . it was answered that the oath in litem is competent , whether it were a spuilzie or a breach of trust , actione depos●● . it was answered , that the oath in litem being granted mainly , because parties injured by breach of such trusts , cannot be put to prove by vvitnesses , that which is taken from them , none being oblieged to make patent his pack , or other privat goods to vvitnesses , yet where there is another clear way to prove the quantities , viz , the oathes of the four persons who opened the pack , there is no reason to put it to the pursuers oath , especially seing their inventar is not the eight part of what he claimes . the lords admîtted the pursuers oath , in litem , reserving their own modification , with liberty to the defender , if he thought fit to produce what of the ware he had , and to produce these four persons , that the pack-man may depone in their presence . earl of sutherland contra earls of errol and marischal . eodem die . there being a decreet of parliament ranking the nobility , whereby earl of sutherland was put after the earls of errol and marischal : in which decreet , there is a reservation to any to be heard before the judge ordinar , upon production of more ancient evidents ; whereupon the earl of sutherland pursues reduction of the decreet of ranking , containing an improbation of all vvrits , patents , and other evidents granted to the defenders , or their predecessors , whereby they are constitute or designed earls : they did produce the decreet of ranking , and the earl of errols retour , whereupon the pursuer craved certification contra non producta , after all the terms were run . the defenders alleadged no certification , because they had produced sufficiently , by producing the decreet of ranking , and their retoures , and the pursuer had only produced his own retoure , which was since the decreet of ranking ; so that the decreet of ranking was sufficient to exclude all his titles produced . it was answered , the retour being the sentence of a court , serving this earl as heir to his fore-grandsire grandsires grandsires , fore-grandsires goodsire , who is designed earl by king alexander the second : it was sufficient in initio litis . likeas he did formerly produce the original evidents , and which was now in the clerks hands , and might have been seen by the defenders , if they pleased . the lords found the retoures not sufficient alone , and ordained the rest to be reproduced , and seen by the defenders . smeatoun contra crawfoord . eodem die . umquhil● patrick smeatoun granted a disposition to crawfoord his vvife , and her heirs , of a tenement of land , whereupon nothing followed during her lifetime , her younger brothre iames crawfoord served himself heir-general to her , and obtained a decreet of implement against iohn smeaton as heir to his father , and having used horning thereon , obtained adjudication against smeatoun , and his superiour , and thereupon was infeft : which right was disponed by him , with consent of william crawfoord , elder brother to the vvife . the said iohn smeatoun dispones the same tenement to alexandor smeatoun , and he is infeft , and thereupon pursues a reduction of iames crawfoords retour , and of all that followed thereupon in consequence on this reason , that the disposition to the vvife belonged not to iames crawfoord her younger brother , who was heir of line , but to william crawfoord , her elder brother , as heir of conquest , and so the service was null , following thereupon ; and the pursuer being first infeft from smeatoun , he hath the only right , because any infeftment to william the heir of conquest will be posterior . it was answered , that it was jus tertij to the pursuer , whether the heir of line was served or infeft , or the heir of conquest : likeas the heir of conquest did concur , and had consented to the disposition . the lords found not the defenses relevant , but considering the case as calumnious , seing it was but of late cleared by decisions , whether the heirs of line , had right to dispositions without infeftment , they did superceed to give answer , but ordained the defender to give in what evidences he could give , of the onerous cause of his disposition . paul henrison contra laird of ludquharn and captain seatoun . ianuary . . the debate betwixt paul henrison and ludquharn , was this day heard again , and it was alleadged that the kings proclamation declared war against the king of denmark and his subjects , ita est the owners of the ship are subjects to the king of denmark , because it is notour that this isle is a part of the kingdom of denmark , and till of late was in the same condition , as any other of his territories ; and albeit the duke of holstein have now an interest by possession , or infeodation , that alters not their subjection to the crown of denmark , but the same is still presumed , unless they will positively prove , that the same is alter'd , and the duke of holstein constitute soveraign therein , and they liberat from his jurisdiction , tolls , and imposts for war. it was answered , that this stranger was not obliged to dispute the right or investiture of the duke of holstein ; but it was sufficient for him to say , that before this war they did own him as their prince for simple acknowledgement of a superiour , or investitur from him , doe not make subjects , or comprehend them within the wars , and quarrels of their superiours : yea , though there were a tribute or jurisdiction due to that superiour , yet if the prince do enjoy the priviledges of making war and peace , he is not a simple subject , but in so far a soveraign prince , as some of the princess of the empyre , hold of the emperour paying him tribute : and there lyes an appeal to the soveraign imperial court ; yet because they can make war and peace , they are not necessarly involved within the emperours quarrels . so the duke of holstein being a soveraign prince , and possessing this island , so as to make use of the subjects thereof in peace and war ; therefore is not comprehended in the king of denmarks quarrel ; nor is he , or his subjects in the sense of the proclamation . the lords adhered to their former interlocutor upon the of december , when this case was debated , and repelled the alleadgences proponed for ludquhurn , unless it were alleadged that the inhabitants of this island do contribute with the king of denmark in this war against the king , and they so alleadging . the lords ordained the ship and goods to be valued , and delivered to the stranger upon caution ; or otherwise to be sequestrat in some merchants hands , that the ship might be made use of for fraught , and the goods sold , and not made unprofitable : and according to the course of admirality , the lords ordained ludquharn to find caution for cost , skaith and damnage , by the delay of that alleadgence . mr. iames cheap contra mr. iohn philip. ian. . . the lords having considered the testimonies of the witnesses adduced before answer , betwixt mr. iames cheap and mr. iohn philip , upon the debate mentioned the . of december last , found the same to prove , and to qualifie the minute , they being the witnesses insert above exception , and it but a minute , wherein particulars are not at all , nor fully set down , which will not be drawn in example , as to any full and extended writs , either for altering any clause therein exprest ; or for adding thereunto any omitted . laird of polwart contra laird of halyburtoun . ianu. . . the laird of polwart as heir to his father , pursues hallyburtoun for payment of a ticket of merks , due by the defender to the pursuers father , and for a composition payed by the pursuers father , for receiving him in certain lands , disponed to him by the defender , wherein he was oblieged to obtain him infeft . the defender alleadged absolvitor from the payment of the ticket , because it must be presumed to be payed on these grounds ; first , since the ticket , the defender sold land to the pursuer , so that it must be presumed it was counted and included in the price , and albeit that presumption were not sufficient alone , it is fortified by these two , viz. that it is twenty eight years since the bond was granted , and no word ever heard thereof : and that umquhil polwart in his testament , gave up an inventar of the debts owing to him , wherein no mention is of the bond. it was answered , that a writ could not be taken away by witnesses proving payment : much less by presumptions : and as to the taciturnity , which is the main one , umquhil polwart dyed about seven years after the bond was granted , and the pursuer was minor most of the time since . it was answered , that presumptions have been oftimes sufficient to take away vvrits , as was found in the case of the lady trabroun . the lords found the presumptions not relevant , and that they were nothing so strong , as these of the lady trabroun , which were thus ; trabroun granted a bond of merks to alexander peebles , which was taken away on these presumptions , that thereafter trabroun had granted a bond of merks to the said mr. alexander , who was his advocat , with whom he had many affairs ; and therefore it was to be presumed , the last bond included the first ; especially seing trabroun decaying in his fortune , mr. alexander apdryzed his lands upon the last bond , and not upon the first , which he might have done with the same expence , and that he never moved any thing thereupon all his life , by the space of twenty six years ; and in the inventar of his testament , he made no mention of it : and that his executors being examined ex officio , did acknowledge they had found it amongst old cast papers . the defender furder alleadged absolvitor from the composition , because he was never required by polwart , to procure the infeftment from the earl of hume , which he could easily have done gratis , he being his uncle , especially seing there was no term in his obligation to perform ; and therefore interpellatio tantum inducit moram . the lords found the defense relevant , and assoilzied from the composition . albeit it was alleadged that polwart for several years had not componed , that the composition was much less then a years rent , and that halyburtoun was not in good terms with the earl of hume , which was not respected , seing hslyburtoun was not required . reid contra salmond . eodem die . reid pursues barbara salmond and iames telz●fer her husband , for a debt due by her father , as behaving her self as heir , by possessing a house wherein her father died infeft ; and by setting another house of his to tennents . it was answered , that iames telzifer was tennent in the house possest by him , before the defuncts death , and might possess , per tacitam relocationem : neither could he safely leave the house , till he had given it over to some having right . vvhich the lords found relevant : ly . it was alleadged that the defunct had disponed the same tenement to the defenders son , his oye , which disposition , albeit it attained not infeftment ; yet it was a sufficient title for mails and duties , and to continue possession , and to purge the vitious title of behaving as heir . which the lords found also relevant . barbara chapman contra iohn white . ianu. . . barbara chapman pursues a reduction ex capite inhibitionis , viz. that calander being charged to enter heir to his father , who was the pursuers debitor , and upon the charge inhibition was used against him , after which he disponed to the defenders father . it was alleadged by the defender , that he is minor & non tenetur placitare de haereditate paterna . it was answered , that calander , his fathers author , was never infeft . secondly , that the defenders father did dispone the land to his second son , by both which , it could not be called haereditas paterna . the lords sustained the defense , notwithstanding of the reply , and found no process , till the defenders majority , and that he was not oblieged to dispute whether his fathers authors were infeft : or whether his father had disponed , or not until his majority , that he might seek out his evidences , and defend himself . reid contra ianu. . . in a process betwixt reid and whereof the title was a service of the pursuer , as heir deduced before the bailzie of regality , of spenzie . it was alleadged by the defender , that this title was not sufficient , seing the service was not retoured . it was answered , that the service being within the regality , and of a person dwelling there , neither needed , nor used to be retoured , in respect the service it self was in record in the bailzies books . it was answered , that albeit a special service of lands within the regality , needed not be retoured in the kings chancellary , because there was no precept thence to issue , but the service within the regality was sufficient , that thereupon the precepts of the lord of the regality might proceed against the superiour within the regality , who was infeft : but in a general service , which may be before any judge , whether the heir reside in his jurisdiction or not ; there is no difference betwixt a regality and any other court , but all must be retoured in the chancellary . it was answered , that the regality having their own chapel and chancellary , were not oblieged to retour it in the kings chancellary . which the lords found relevant and sustained the service . isobel findlason contra lord cowper . ianu. . . elphingstoun of selmes having given a precept to isobel findlason , and direct to the lord cowper , that he should pay to the said isobel , a sum owing by selmes to her , and receive selmes bond from her ; upon the foot of which precept , the lord cowper directs another precept to iames gilmore , to pay the said sum : the vvoman not being payed , pursues both the lord cowper and iames gilmore , for payment . it was alleadged for iames gilmore absolvitor , because he had not accepted the precept , neither was there any ground alleadged for which he was oblieged to accept , or pay the lord cowpers precept . which the lords found relevant . it was alleadged for the lord cowper , that the giving of the precept should not obliege him , seing it mentioned not value received , or any other cause ; and therefore resolved into a meer desire . it was answered , that the giving of the precept was an acceptance of selmes precept , and behoved at least to import a donation , to be made effectual by the drawer of the precept : or otherwise , an intercession , or expromission for selmes . the lords sustained the process , and found the lord cowper lyable by the precept , to pay in case of none acceptance , especially seing it was consequent to selmes precept direct to cowper . mr. iohn mair contra steuart of shambelly . eodem die . mr. iohn mair minister of traquair , having obtained decreet against shambellie , and the parochioners , to pay him . merks , expended for reparation of the manse , and to meet and stent themselves for that effect : upon which decreet , he took shambellie with caption , whereupon he gave him a bond of fourscore pounds for his part . shambellie now suspends the bond on this reason ; that albeit it bear , borrowed money , he offers to prove by the chargers oath , that it was granted for his part of that stent , and that his proportion thereof , casting the sum according to the valuation of the paroch would not exceed fourty merks ; and that he granted this bond for fear of imprisonment . it was answered , the reason was not relevant to take away the suspenders bond , being major sciens & prudens ; and there was here no justus metus , because the caption was a lawful diligence , so that the giving of the bond was a transaction of the parties , which is a strong obligation . it was answered , that the suspender when he was taken at his house , was sick and unable to travel ; yet the messenger would carry him away , and being at the tolbooth , gave the bond rather , than in that case to go to prison , which was an irregular force , and a just cause of fear ; but this addition was not proponed peremptory . the lords repelled the reason of suspension , unless the said addition were also instructed instanter , otherways it could only be reserved by reduction , ex metus causa . sir henry hoom. contra tennents of kello and sir alexander hoom. janu. . . sir henry hoom having appryzed the lands of kello from henry and iohn hooms , and being infeft , pursues the tennents for mails and duties . compearance is made for sir alexander hoom , donatar to the forefaultor of the said iohn hoom of kello , who alleadged that the forefault person , the time of the doom of forefaultor , was in possession of the lands in question , in whose place the donatar now succeeds , and by the act of parliament . it is statuted , that where the forefault person was in possession the time of the forefaulture , albeit not by the space of five years , which would constitute a right to him , that the donatar must be put in possession , and continue five years in possession , that in the mean time he may search and seek after the rebels rights . it was answered ; first , that this part of the statute is only in case the rebel had tacks , or temporary rights , which neither is , nor can be alleadged in this case . secondly , the five years possession must be reckoned from the doom of forefaulture , after which the kings officers or donatar , might have attained possession , and if they did not , their neglect cannot prejudge others . ita est , there are five years since the forefaulture , and the rents are extant , being sequestred . it was answered that the act expresses , not only in case of tacks , but also in possession , and that the five years must be after the possession began , and not the forefaulture . the lords found the alleadgance relevant , that the rebel was in possession , and preferred the donatar to the five years rent , after the date of the forefaulture . it was further alleadged , that the pursuers right being but an appryzing , the donatar would instantly satisfie the same at the bar. it was answered non relevat , to retain by way of exception , but the donatar behoved to use an order , and pursue a declarator . it was answered , that in appryzings , an order upon hours requisition , was sufficient , there being no further solemnity required , then that the appryzer might come to receive his money . the lords found that the appryzing might be summarly satisfied hoc ordine . earl of argile contra george campbel . eodem die . the earl of argile pursues george campbel , to remove from certrin lands , who alleadged absolvitor , because the warning was null , not being used at the right paroch kirk , where divine service at that time was accustomed . it was answered non relevat , unless it were alleadged that the other kirk were erected by parliament or commission thereof , and that thereby the old paroch was supprest and divided . ly , though that were alleadged , it ought to be repelled , because it is offered to be proven , that all vvarnings and inhibitions have been used at the old paroch kirk , and particularly by the defender himself . the lords repelled the defense simply , unless the erection were alleadged as aforesaid , and found in that case , the reply relevant to elide the same . earl of argile contra george campbel . ianu : : : the earl of argile insisting in the removing against george campbel . it was alleadged no removing , because the vvarning was null , not bearing , to have been read at the kirk door , either at the time divine service uses to be , or at least before noon . it was answered , that the vvairning bore , that the same was affixed on the kirk door , and lawfully intimat there ; which does import the lawful time of the day . ly , the pursuer offered to mend the executions at the bar , and abide by it as so done . it was answered , that the defender accepted the executions , as produced , after which they could not be amended , and that lawfully could not supply that speciality ; otherwise if the vvarning had only born , that the officer had vvarned the party lawfully , it would have been enough . the lords admitted the pursuer to amend the execution , he biding thereby , and ordained the defender to see the same . hercules scot contra gibb . ianuary : . hercules scot having given his horse to john gib , stabler in brunt-island , to be kept : pursues gibb for the price of his horse . the defender alleadged absolvitor , because he having put out the horse to the grass , it being in the month of july , the horse fell over a rock and brake his neck , and the defender is not lyable pro casu fortuito . it was answered , that the accident was by the defenders fault , because he put the horse to grassing above the craigs of brunt-island , and caused ty his head and foot together . ly , it is offered to be proved by witnesses , that the pursuer directed him to keep the horse in the stable at hard meat , and not to put him out to grass . the defender answered , that he was not in culpa , because he had put out the horse in a place , where ordinarly other horses were put out , and had tyed him no other way then the rest of the horses . ly , the command to keep , is only relevant to be proven , scripto vel ju●amento , and the emission of words without any fact , is not otherwise probable . the lords found the defense and duply relevant to elid the summons , but found the reply and triply relevant to elide the same ; and found it probable by witnesses , in respect it was a part of the bargain betwixt the pursuer and the stabler . henderson contra henderson . ianu. . . umquhil henderson grants a writ in favours of allan henderson , whereby he appoints the said allan to be his heir , and donatar to all his lands and estate , and assigns him to the rights and evidences thereof ; with power to enter by the superiour : but in the narrative , it bears the ordinar narrative of a testament , and has a clause subjoyned to all , in case of his return , he may alter and annul the same , there having nothing followed in his life . the said allan pursues henderson his appearand heir , to fullfil the former writ , and to enter heir , and resign in his favours , conform to the meaning thereof . the defender alleadged absolvitor ; first , because this writ is no disposition , but a testament , or a donation , mortis causa , in which no disposition of land can be valid . ly , albeit this could be a disposition , yet it is not done habili modo , there being no disposition of the right of the land , or any obligement to infeft , neither can a person be constitute heir , but either by law or investiture ; or at least , by an obligement to grant investiture . ly , this being dona●io mortis causa , expresly revocable by the defunct at his return , it is ambulatory and conditional : ita est , he returned and granted commissions , and factories , whereby his mind appeared to be changed . the lords repelled all these alleadgances , and sustained the summons , because though the writ was unformal , yet they found the defuncts meaning was to alienat his right from his heirs to this pursuer , to take effect after his death ; and albeit he returned , seing he did no deed to annul , or recal this writ , this was effectual against his heir to compleat the same . creditors of sir james murray contra iames murray . feb. . . there being a wodset of the lands of stirling granted by sir iames murray to iames livingstoun of the bed-chamber , containing a clause of requisition , and reversion , on payment at london , the lands being appryzed by sir iame's creditors , they having the right of reversion , did use an order at edinburgh , against iames murray , as now having a right to the wodset , and pursue a declarator . the defender alleadged absolvitor , because the order is not conform to the reversion , which is strictissimi juris , and behoved to be done at london . it was answered , the place being adjected in favour of iames livingstoun , who resided at london : the pursuers have done more , having consigned at the present wodsetters domicile , london being only appointed , as it was the former wodsetters domicile , wherein he hath benefit , and can have no detriment . it was answered , he was not obliged to debate his detriment , for if his money were in london , he would get six of the hundreth of exchange to scotland . the lords sustained the order , the pursuers making up what should be modified by the lords , for the interest of the wodsetters . earl tullibardine contra murray of ochtertyre . eodem die . the earl of tullibardine having wodset the lands of logie-almond , to murray of ochtertyre , he did thereafter discharge the reversion , and at that same time , got a back-bond , bearing , that for payment of . merks , with all other sums that should happen to be due to him by tullibardine , and all expenses , that he should dispone the lands back to tullibardine , or the heirs or assigneys of his own body ; but with this provision , that if he were not payed before martinmass . the bond should be null , without declartor . tullibardine premonishes , and after premonition , dispones the lands to sir iohn drummond , and they both joyntly consign , and now pursue declarator . it was alleadged for the defender ochtertyre . first , no declarator upon this order , because the back-bond is personal to my lord , and to the heirs or assigneys , being of his body ; so that sir john drummond , nor no stranger can have right thereby to redeem . ly , the back-bond is extinct , and null by committing of the clause irritant , in so far as payment has not been made before . the purswer answered to the first , that albeit the reversion had been personal to my lord , only excluding his heirs and assigneys ; yet my lord in his own lifetime might redeem , and being redeemed , the right would belong to any to whom my lord had , or should dispone . ly , this clause irritant is pactum legis commissoriae in pignoribus , which by the civil law and our custom is void , at least may be still purged before declarator obtained , as being rigorous and penal , and so abiding the lords modification , as well as penalties in bonds modified of consent of parties , especially in this case , where the performance is not of a single liquid sum , but comprehends a general clause of all debts that were , or should be after due . the defender answered , that clauses irritant in wodsets , are not rejected by our law , but are valide , only , where declarators are requisit , the lords may reduce them to the just interest of parties before declarator : but here there needs no declarator , because the defender is in possession , and may except upon the clause irritant committed , and the clause bears , to be effectual without declarator , and albeit this clause could now be reduced to the just interest , it is only this , that seing tullibardine hath sold the land , the defender should give as great a price as it is sold for to sir iohn drummond , which the defender is willing to do . the lords sustained the order , in so far as it is at the instance of tullibardine , but not as to sir john drummond , but prejudice to sir john drummonds disposition ; they found also that this clause irritant might be purged now at the bar , or any time before declarator , which is always necessar , though renunced , that medio tempore , parties may purge ; and the lords inclined , that ochtertyre should have the lands for the price sir john drummond gave , which is eighty eight thousand merks ; but upon examining him and my lord , it appeared that my lord had offered the land to him , re integra , and that he had never been special , as to so great a price as this ; but only general , that he would give as great a price as any other would give , which they thought not sufficient , seing any other thereby would be scarred from bargaining . executors of lady pilton contra hay of balhousy . feb. . . mr. francis hay granted a bond to his wifes sister , the lady piltoun , bearing , that for good considerations , he obliged him to pay her a merks yearly , during her life , with this provision , that it should be leisum to her to employ the same , for the abuliaments and ornaments of her body , or any other use she pleased ; and but any right and interest in her husband thereto , jure mariti ; her executors do now pursue balhousie as heir , for payment , who alleadged-absolvitor , because he had payed to piltoun her husband ; and albeit it was provided , that it might be leisum to his wife to dispose upon the sum , yet she had not done it , but the husband had provided her with all abuiliaments necessar . it was answered , that the husbands jus mariti , was excluded by mr. francis himself : and whatever might be alleadged of what belongs to a wife , proprio jure , that nothing more can remain with her , but her necessary aliment , and all the rest being in the person of the wife , doth return to the husband jure mariti ; albeit the jus mariti were renunced in her favours ; yet the right here is freely given by a third party , excluding the husband , which third party might gift with what provisions he pleas'd , and his gift returns to himself , unless these provisions be observed , and this must be thought to be a gift , seing it bears no cause onerous . it was answered , that it bears good considerations and expresses not to be a gift , or done for love and favour . ly , if the gifter were opposing the husband , or his creditors right , and making use of that provision , that his gift might return , seing the provision was not keeped , it might have weight ; but here the donators heir makes not use of the provision , but concurreth with the husband and payeth him . the lords found the payment made by the donator , or his heir to the husband relevant , to exclude the executors of the wife . pourie contra dykes . eodem die . umquhil dykes having subscrybed a bond to pourie , of this tenor , that he acknowledged himself to be resting to pourie pounds yearly , as the annualrent of a hundred merks ; which sum of pounds , he oblieged himself to pay yearly . this was the tenor of the bond , whereupon pourie pursued dykes his successors , not only for the payment of the annualrent , but for payment of the principal sum of merks , alleadging that she being but a simple woman , had entrusted dykes with the drawing of the bond , and he had deceived her , and not mentioned the payment of the principal , but that the acknowledgement that the annualrent was due , as the annualrent of merks , behoved to infer that the merks was also due ; this ticket being holograph , without witness , there was no clearing of the meaning by the witnesses insert . therefore the lords allowed the pursuer to adduce such adminicles and witnesses , as she would use for clearing of the same . she adduced an instrument , bearing , umquhil dykes upon his death-bed , to have acknowledged that he thought the principal sum had been contained in the obligatory clause , and that it was through his neglect , or unskilfulness , all the witnesses in the instrument being now dead , the nottar , and he who is mentioned as procurator , to have taken instruments in the pursuers name , were examined , both acknowledged that dykes had exprest his mind in the matter before them ; but they were contrary in the particular ; the nottar deponed conform to the instrument ; but the procurator deponed contrary , that the woman had quite the principal sum , and had taken her to the annualrent . the lords having considered the whole matter : and first , whether the ticket could import that the principal sum was due ? they found neither by the ticket nor by the instrument , that that could be instructed : they considered next , whether the annualrent was due , during the womans lifetime only , or as a perpetual annualrent , to her , her heirs or assigneys ? the difficulty was , that the obligement bore , that dykes should pay the annualrent yearly , but did not express , neither to her , her heirs nor assigneys , but simply in these terms , to pay the pounds yearly ; which the lords found to carry a perpetual annualrent , though heirs and assigneys were not exprest . lady traquair contra marion houatson . feb. . . the lady traquair pursues marion houatson for the mails and duties of a part of the liferent-lands ; who alleadged absolvitor , because her umquhil husband , who was immediat tennent to the umquhil earl , had , bona fide , made payment to him . likeas the defender being only sub-tennent to her son , had , bona fide , made payment to her son of her duty . the pursuer answered . that neither of the alleadgances were relevant ; because any payment that was made by the defender , or her umquhil husband , was before the term of payment , and so could neither be said to be bona fide nam ex nimia diligentia suspecta est fides , neither could it prejudge the pursuer . the lords were all clear that the payment made by the principal tacks-man , before the term , was not relevant ; but as to the payment made by the sub-tennent to the principal tennent . the lords debate the same amongst themselves , some being of opinion , that the sub-tennents payment bona fide , before the term was sufficient , because he was only obliged to the principal tennent , and he might have a tack for a less duty then he , or for an elusory duty , which if he payed , and were discharged , he was not conveenable : and oft times the sub-tennents term was before the principal tennents yet the lords found that payment made bona fide , by the sub-tennent to the principal tennent , was not relevant , and that because the master of the ground has action , not only against the tennent , but also against the sub-tennent , or any who enjoyed the fruits of his ground , and may conveen them personally for his rent , as well as really , he has an hypothick in the fruits ; neither can the sub-tennent prejudge the master of the ground of that obligation and action , by paying before the term ; otherways he might pay the whole terms of the tack , at the very entry thereof , and so evacuat the heretors interest , as to the sub-tennent ; yea● though the sub-tennents tack-duty were less then the principal tennents , it would not exclude the heretor , pursuing him as possessor for the whole , but only give him regress for warrandice against the principal tacks-man ; but the term being come , if the heretor arrested , nor pursued not the sub-tacksman , he might impute it to himself , and the sub-tacks-man might justly presume that the principal tacks-man had payed , and so might pay him bona fide . countess of hume contra tennents of alcambus and mr. rodger hoge . eodem die . the countess of hume being provided by her contract of marriage , to the lands of alcambus ; pyperlaw , and windilaw , extended to husband-lands , she gets a charter upon her contract , bearing , for implement thereof , to dispone to her the lands and barony of alcambus , &c. with a seasine taken at alcambus ; she thereupon pursues the tennents . compearance is made for mr. roger hog , and other creditors , who bought these lands from wauchtoun , who had bought them from the earl of hume , and alleadged absolvitor from the mails and duties of the miln of alcambus , because my lady by her contract of marriage was not provided to the miln ; neither was she infeft therein , per expressum ; and milns do not pass as pertinents , without a special infeftment . ly , absolvitor for the rents of pyperlaw and windilaw , because my ladies seasine● bears , only in●eftment in the lands of alcambus , and mentions not these lands which are particularly in the contract . the pursuer answered to the first , that by her charter , she was infeft in the lands of alcambus , with the milns ; with other lands mentioned therein , &c. ly , that alcambus bore , by her charter , to be a barony , which is nomen universitatis , and carries milns , albeit not exprest . to the second , it is offered to be proven , that alcambus is the common known designation , and is commonly known to comprehend pyperlaw and windilaw , as parts and pertinents thereof , and that they are all holden of one superiour , and lyes contigue ; so that they are naturally unite , and without any further union in a barony or tenement ; and a seasine upon any place of them serves for all . it was answered for the defender , to the first point , that alcambus was not a barony , neither doth the designation thereof by the earl of hume , make it a barony , unless it were instructed . ly , the adding of milns in the charter , if the lady had not right thereto by the contract , is a donation by a husband , and is revocked by his disposition of the lands of alcambus , and miln thereof , to the laird of wauchtoun , the defenders author . the pursuer answered , that the charter was but an explication of the meaning of the parties , that by the contract , the intention was to dispone the miln , especially , seing the miln hath no sucken but these husband-lands of alcambus , which are disponed without any rest●iction of the multure ; so that the miln would be of little consequence without the thir●e . the lords having compared the contract and charter , found that by the contract , the lady could not have right to the miln , 〈◊〉 she would be free of the multures ; and found that the charter did not only bear for implement of the contract , but also for love and favour , and so found the adjection of the miln , to be a donation revocked ; nor had they respect to the designation of the lands as a barony , but they found it relevan● , if the lady should ●rove that it was a barony , to carry the right of the mi●n , or that in my lords infeftments , there was no express men●●●n of the miln , but that my lady had them in the same terms my lord had them : they found also , that reply relevant , that alcambus was the name of the whole lands , to extend the sea sine to the lands of pyp●rlaw and windilaw , though not named , and that they might be yet parts and pertinents of the tenement , under one common name . andrew smeatoun contra tabbert . feb. . . andrew smeatoun being infeft in an annulrent out of a tenement in the canongate , pursues a poinding of the ground , and produces his own infeftment and his authors , but not the original infeftment of the annualrent . it was alleadged no process , until the original infeftment were produced , constituting the annualrent , especially seing the pursuit is for all bygones , since the date of the authors infeftment ; so that neither the pursuer , nor his immediat author hath been in possession . ly . if need beis , it was offered to be proven , that before the rights produced , the authors were denuded . it was answered , that the pursuer hath produced sufficiently , and that his right was cled with possession , in the person of his mediat author , before the years in question . to the second , this pursuer hath the benefit of a possessory judgement by his infeftment , cled with possession , and is not obliged to dispute , whether his author were denuded or not , unless it were in a reduction . the lords sustained the pursuers title , unless the defender produced a right anterior thereto ; in whi●h case they ordained the parties to be heard thereupon , and so inclined not to exclude the pursuer , upon the alleadgeance of a poss●ssory judgement ; but that point came not fully to be debated : it is certain that a possessory judgement is not relevant in favours of a proprietar , against an annualrenter , to put him to reduce , because an annualrent is debitum fundi ; but whether an annualrenter possessing seven years , could ex●●ude a proprietar , until he reduce , had not been decided , but in this case the lords inclined to the negative . mr. alexander foulis and lord collingtoun contra tennents of innertyle and la. collingtoun . feb. . . sir iames foulis of collingtoun , being in treaty of marriage with dam margaret erskin , lady tarbet , she did dispone chalders of victual , of her joynture in the north , to a confident person , that she might make use thereof , for the benefit of her children ; and disponed chalders of her liferent of the lands of innertyle , to cuninghame of woodhal , who transferred the same to mr. alexander f●ulis of ratho , who granted a back-bond , bearing , that his name was made use of for the use and behove of collingtoun and his lady , and that to this effect , that the profit of the liferent should be applyed to the aliment of their families joyntly ; and therefore obliged himself to dispone in their favours , and de presenti did dispone . the next day after this disposition , there is a contract of marriage betwixt collingtoun and the lady , wherein there is this clause , that col●ingtoun renunces his jus mariti , to the lady's liferent , or any other right he might have thereto by the subsequent marriage , and takes his hazard for what he may have any other way . mr. alexander pursues the tennents upon his disposition . compearance is made for the lady , who alleadges he hath no interest● because he is denuded by the back-bond . compearance is made for collingtoun , who declared he concurred with ratho , and consented he should have the mails and duties , to the effect contained in the back-bond , and that he would not make further use of the re-disposition contained therein . it was answered for the lady , that collingtouns concourse could not sustain this process , because ratho was already de presenit , denuded in favours of collingtoun and her ; likeas collingtoun was denuded by his contract of marriage whereby he renunces his jus ma●iti , and all other right he can have to the liferent la●ds , in favours of the lady , and so renunces the clause of the back-bond , in so far as it is in his favours . it was answered , that the contract of marriage could not derogat to the back-bond , unless the back-bond had been per expressum , discharged or renunced therein , because albeit the contract of marriage be a day posterior to the back-bond , yet both are parts of one treaty of marriage , and so in the same condition , as if they were in one writ , so that a posterior clause in general terms , cannot take away a prior special clause of this moment ; yea though it were in a contract le●s favourable then a contract of marriage , which is ube●●mae fidei , general clauses are not extended above what is specially exprest , and the jus mariti being exprest , and the back-bond not exprest , it cannot be presumed , that they changed their minds in one night , to renunce the benefit of the back-bond ; but this conveyance was made of purpose , because collingtoun being in debt , if the right were constitute in a third party , and only to their behove as an aliment , the creditors could not reach the same , but it were the greatest cheat imaginable , to conceive that the general clause subsequent , should evacuat the whole design , and take away the provision of the back-bond : neither doth the general clause renunce all right that collingtoun had , or might have to the liferent-lands , any manner of way ; but only all right he could have by the subsequent marriage , any manner of way . ita est , that he doth not claim right jure mariti , nor by the subsequent marriage ; but by the paction contained in the back-bond ; and it is most certain that the jus mariti , which is most peculiar to this nation , doth not comprehend all rights a husband hath , in relation to the person , or means of his wife , but only the right of moveable goods , or sums , which without any paction , whatsoever way they come in her person , belong ipso facto to him , not by paction , but by law ; and that jure mariti , or by vertue of the marriage : so tha● albeit he could not have right , even by the paction , except that he were husband , or that marriage had followed , yet his paction is his title , and not the marriage , which is but tacita conditio , or causa sine qua non , so that discharging , or renuncing of the jus mariti , or the benefit by the marriage , if it were posterior to the contract of marriage , would not take away the contract , and being in the contract , cannot take away the prior ●action , and disposition granted by the wife , in favours of a husband , or a third party to his behove . it was answered for the lady , that she adheres to the clear express terms of the contract of marriage , which renunces not only the jus mariti , but all other right to the liferent-lands , by the subsequent marriage , which being a several writ , and a day posterior , most necess●rly take away the back-bond , without considering the meaning of parties , quia in claris non est lo●us conjecturis ; at least the meaning can be no otherways cleared but by writ , or the ladies oath ; otherwise the most clear and solemn contract shall be arbitrary , and may be taken away by presumptions or conjectures , and no man shall be secure of any right . ly , verba sumendasunt cum effe●●u ; i● this did not take away the back-bond , it had no effect for the l●dy , before the contract was denuded , of her whole liferent , both of inne●tyle and in the north , so that there was no need to renunce the jus mariti , or right by the marriage to the liferent-lands . it was further alleadged by the lady , that albeit the renunciation could not reach the back-bond , in so far as it is a paction , so that it yet stood effectal for application of the liferent right , for the aliment of the lady and collingtouns family joyntly , yet thereby they both had a communion and society equally , and the husband could pretend no right in the administration or manadgement , but only jure mariti , in so far as he is husband , and therefore he acknowledging that he has renunced his jus mariti , cannot pretend to the administration of this aliment , but it must remain intirely to the lady . the lords found that the claus● in the contract of marriage , did not derogat to the back-bond ; and as to the point of administration , they consid●red it to consist in two things , in uplifting the rent , and manadging the liferent-lands , and in the application thereof to the use of the family , and manadging the affairs of the family , as to the first , they found th●● both parties having entrusted ratho , the trust of manadgement of the rent , could not be taken from him without collingtouns consent ; and as for the manadgement of the family it self , they found , that it neither was , nor could be re●un●ed by the husband , in favours of the wife , and that any such paction , though it had been clear and express , taking the power and government of the family from the husband , and ●●ating it in the wife , is contra bonos mores● and void , a●d that the jus mariti● as it is properly taken in our law , for the husbands interest to the wifes moveables , being renunced , cannot be understood to re●●h to the renunciation of the husbands power , to rule his wife and family , and to administrat the aliment thereof . elizabeth ramsay contra ker of westnisbet . eodem die . elizabeth ramsay having pursued an adjudication of certain-lands upon the renunciation of barbara nisbet , insists upon that member of the summons against the superiour iohn ker , that he should receive and infeft her ; who alleadged no process , unless the pursuer show the right of the former vassal , whose heir had renunced , for the pursuer can be in no better case then the appearand heir , who if she were craving to be entred , behoved to instruct her predecessors right . the pursuer answered , that her adjudication against the defender as superiour , is in common form , which hath been ever sustained upon good ground , because a creditor has no interest to have his debitors rights , when he is seeking adjudication , which must be his title , to demand the rights , but the superiour is obliged by law to reserve the adjudger , without instructing any right further then the adjudication , which hath been frequently so found in the case of appryzers . the lords having considered the case and paralel , with that of appryzers , found this difference , that superiours got a years rent for receiving appryzers , but not of adjudgers ; yet in respect of the common custom of these summons , they ●epelled the defence , and decerned the superiour , to receive the pursuer , salvo jure ●ujuslibet & suo . dam geibs moncreiff contra tennents of neutoun and william yeoman eodem die . dam geils moncrief being served to a terce of the lands of newtoun pursues the tennents for a third part of the duties , who having deponed that they payed so much for stock and teind joyntly for yeards , parks , and the whole lands possest by them . compeared william yeoman , as now having right to the fee , who alleadged no terce of the teinds , because they fell not under terce . ly , no terce of the yeards , because as the mannor-place belonged to the fiar without division , so behoved the closs gairdens , orchards , yards , &c. the lords found the pursuer to have no right to the teind by her terce , unless there had been an infeftment of the teinds by erection , and therefore laid by the fourth part for the teind ; and found that the years in question being possest by the tennents , and there being nothing alleadged nor instructed , that there was a tower , fortalice , or mannor-place , having a garden , or orchard for pleasure , rather then profite , they found no necessity to decide , what interest a tercer would have in such , but these being set by appearance , as grass yeards , they repelled the alleadgeance . earl tullibardine contra murray of oc●tertyre . feb. . . in the declarator at the instance of tullibardine , against murray of ochtertyre , dispute the first of ●ebruary last , it was now further alleadged for ochertyre , that clauses irritant in wodsets , not being illegal , or null by our law , albeit the lords do sometimes restrict the effect thereof , ad bonum & aequum , to the just interest of the parties , against whom the same is conceived , they do never proceed any fur●her ; but here ochertyre is content to make up to the earl his just interest , by paying a greater price for the land then sir iohn drummond : and whereas it was alleadged , that this was not receivable now , after the earl had made bargain with sir iohn drummond , ochetyre now offered to prove , that before any bargain was agreed , in word or writ , he did make offer to the earl of fourscore ten thousand merks , which he offered to prove by witnesses , above all exception , who communed betwixt them , viz. the lord ●tormount and the laird of kylar . it was answered , that the pursuers adhered to the lords former interlocutor , whereby they have restored the earl against the clause irritant , he satisfying ochtertyre his whole interest , cum omni causae , the same point being then alleadged and dispute , a●d both parties being judicially called , and having declared their minds concerning any such offer , whereby the earl upon his ho●our , declared that before the agreement with sir iohn drummond : ochtertyre offered not so much by merks . ly , any such alleadgence albeit it were competent , it were only probable s●ripto vel juramento ; the earl now having disponed to sir iohn drummond , so that the effect would be , to draw him into double dispositions , which is of great consequence , both as to his honour and interest , especially seing that ochtertyre did not take an instrument upon the offer . it was answered for ochtertyre , that the former interlocutor cannot exclude him , especially seing he did only then alleadge , that he made a general offer of as much for the land as sir iohn drummond would give therefore , but now he offers to prove , that he offered merks , which is merks more then sir john's price . the lords found that they would only restrict the clause irritant , to the effect that the granter of the wodset might suffer no detriment , which they found to be effectual , if the wodsetter offered as great , or a greater sum then the other buyer , before any bargain agreed between them , either in word or writ ; ●ut found it not probable by witnesses , but by writ , or the earls oath ; and found that a general offer was not sufficient , unless it had exprest a particu●ar sum . lord iustice clerk contra rentoun of lambertoun . feb. . . the lord rentoun , justice clerk , putsues rentoun of lambertoun , as heir to his father for compt and payment of his rents , woods and planting , intrometted with by lambertoun , in the beginning of the troubles . it was alleadged for the defender , absolvitor , because by the act of indemnity , the leidges are secured , as to all things done by any pretended authority for the time . ita est , the pursuer being sequestred , the defenders father medled by warrand from the committee of estates , and made compt to them , as appears by his compt produced● which is ballanced by the committee . ly , the said accompt bears , that lambertoun made faith that it was a true accompt , nothing omitted in prejudice of the publick ; after which he could not be questioned , either for any thing in the accompt , or for any thing omitted and not charged . the pursuer answered , that the act of indemnity contains an express exception of all persons , that medled with any publick moneys , and had not made compt therefore , that they should yet be comptable . ly , the accompt produced contains two accompts , one in anno : another in anno . the first is not approven by the committee , but adjusted by three persons , who were no members of the committee , and whose warrand is not instructed : and the second compt is only approven , wherein the charge is a rest in the tennents hands of the former accompt , and the oath is only adjected to the second accompt , which cannot import that lambertoun ommitted nothing in the first accompt , but only that he ommitted nothing in the second , and his oath is only to the best of his knowledge , and can import no more , than the oath of an executor upon the inventar , which excludes not the probation of super intromission . it was answered for the defender , that the second accompt being the rest of the first accompt , the approbation of the second must approve both , and the approbation is sufficient warrand for him to intromet , and the auditors to compt with him . the lords repelled the defense upon the act of indemnity , in respect of the foresaid exception contained therein ; and likewise found , that the oath subjoyned to the second accompt , could not exclude the pursuer from insisting , for the defenders fathers intromissions ommitted out of the first accompt , and wherewith he charged not himself , but found that the defender was secure by the act of indemni●y , so far as he had charged himself with , and compted ; and found that he was not obliged , after so long a time to instruct his commission , or the warrand of the auditors , that fitted his accompts ; but that the approbation was sufficient to astruct the same . lady diana maxwel contra lord burley and others . feb. . . lady diana maxwel , lady cranburn and other executors confirmed to the countess of dirletoun ; pursued the lord burley , as representing his father , for payment of a bond granted by his father and others ; to the umquhil earl of dirletoun , for the price of a great quantity of victual , and that upon these grounds , that the pursuers are executors surrogat to the countess , and have licence to pursue ; which countess had an assignation from the earl to his houshold-stuff , which bore this general clause , and to his chattel , and other moveable-goods and gear whatsomever ; under which generality , this bond is comprehended , being moveable , and for victual , and so is a chattel , as the word is understood by the law of england ; whereby all that is not by infeftment of fee , is comprehended by the word chattels , and belong to the executors , as laisses , &c. ly , the countess was nominat universal legatrix in the earls testament , and thereby has right to this moveable-bond : ly , as relict she has right to the half . it was alleadged for the defender , no process upon any of these titles . first , because the assignation cannot be extended to this bond ; neither is the word chattels to be interpret according to the law of england , the assignation being made by a stots-man , and made in scotland , after the scottish manner . ly , the pursuers as executors to the countess , cannot pursue upon the universal legacy , the debitors of the defunct , but only the defuncts executors● because this bond is yet in bonis primi defuncti , and must be confirmed . ly , the relict cannot pursue the debitors for her half , but at least , she must call the executors . the lords found both the last alleadgences relevant , but as to the first , before answer they ordained the pursuer to adduce what evidences they had to instruct the signification of the word chattels , by the law of engl●nd , in respect it was notour to them , that the lord dirletoun beìng a servant of the kings , lived the most part of his time in england , and in scotland there is no use of the word chattels . isobel glen contra iohn hume . feb. . . isobel glen as assigney by mr. edward jameson , having obtained decreet against the umquhil earl of hume , for certain by-run stipends , and thereupon having arrested in my lord whitekirks hands , certain sums due by him , to the earl of hume : she now pursues to make forthcoming . compearance is made for iohn hume ▪ who produces an assignation by the earl of hume , to the sums due by whitekirk , and also produces a gift of the earls liferent-escheat ; and alleadges , first , no process at the arresters instance , because the earl of hume being dead , the debt must be first establisht by a decreet , against one representing him , who must be called principaliter , before the person in whose hands the arrestment is made , can be decerned to pay that which was the defuncts . ly , iohn hume must be preferred as donatar , because the arrestment was laid on after the earl of humes rebellion , by which his goods belonged to the king , and no sums can be made forth-coming , as belonging to him after the rebellion , because they belonged to the king. it was answered to the first ; that if the earl of hume had not dyed at the horn , the pursuer would have either confirmed as ex●cutor creditor , or called the earls executors , but that is not necessar , seing the earl died at the horn , and could not have one to represent him in mobilibus ; and that now the donatar who succeeds , compears . to the . the pursuer as arrester , ought to be preferred ▪ because albeit the arrestment be after the rebellion , yet it is before the gift or declarator ; and it is for a debt due by the earl , before the rebellion , and so doth exclude the donatar , for which they produced a decision marked by dury , pilmour contra gaigie . in which case the gift was granted by a lord of a regality , having the benefit of the escheat , whereanent the lord advocat represented , that this could not be drawn in consequence , to prejudge the king or his donatar , because the lord of regality being a subject , debuit invigilare sibi , by declaring the rebellion without delay , but the king cannot so soon know , nor is he prejudged by the neglect of his officers . yet the ●ords u●animouslie preferred the arrester , the advocat forbearing to vote , for they t●●ught the c●se of creditors for debts before rebellion were not to be prejudged , ●●●ng diligence before declarator , or if they should poind , arrest , adjudge , &c. cranstoun contra wilki●on feb. . . by contract of marriage betwixt wilkison and his spouse , he is obliged to infeft her in a tenement , exprest therein , and in all the conquest during the marriage ; which infeftments were to be taken to them , the longest liver of them two , in conjunct-fee , and their heirs betwixt them : which failzing , to the heirs of the mars body : which failzing , to the wifes heirs whatsomever ; after which the husband purch●sed a piece of land , but took the infeftment thereof● to him and his ●ife , and the heirs betwixt them : which ●ailzing , to his own heirs whatsomever , omitting the wifes heirs . this cranstoun obtains hi● self infeft in this conquest tenement , as heir to the wife , and thereupon obtained decreet for mails and duties . wi●●ison as heir to the husband , pursues reduction of the decreet on these grounds : first , that cranstouns infeftment , as heir to the wife● was null , because the wife was not fiar , but liferenter . ly , the wife having accepted of an infeftment , posterior to the contract , without mention of her heirs , that innovat the provision of the contract , and excludes her heirs . it was answered ; first that the man and wife being conj●nct fiars , the wife was fiar● and the man but life ●enter , because the last termination of heirs whatsomever , terminat upon her . ly , albeit cranstoun had taken his infeftment wrong , wi●kison cannot quarrel the same , because he , as heir to wilkison , was obliged to infeft him , as heir to the wife ; and to the posterior in●eftment , it is contrair to the provision of the contract of marriage , and there does appear no accepting thereof by the wife . ly , cranstoun is not obliged to disput the validity of this right , because he hath been infeft qua●●ter qunque , and by vertue of his infeftment , hath been seven years in possessi●n , whereby he hath the benefit of a possessory judgement , ●ay and while his infeftment be reduced . the lords found , that even by the contract of marriage , the husband was fiar , and not the wife : but that the wifes heirs of line , were heirs of provision to the husband , and that if there had been an heir of the ma●riage , or an ●●ir of the mans body , they could never have been served ●eirs to the wife : and that by the deficiency thereof , the condition of the fee cannot change : and therefore they found that cranstoun was wrong i●feft ; yet they found the alleadgence of his seven years possession relevant , to give him the b●n●fit of a possessory judg●ment , without disputing , whether the provision of the contract of marriage , in favours of the wife , was derogat , by the posterior infeftment , omitting her heirs . andrew litlejohn contra dutches of monmouth . eodem die . andrew litlejohn pursues the dutches of monmouth , and her curators , for payment of a taylor accompt , taken off by the dutches for her marriage sow ; to the fit whereof , she adjoyns these words , i acknowledge the accompt above-written , and subscrives the same . it was alleadged by the curators , that the countess subscription , being after her marriage , can neither oblige her self , nor her husband , because wives obligations are ipso jure , null . it was answered that the dutches being persona illustris , and the accompt for furniture to her body at her marriage ; her accompt fell not under the nullity of ordinary obligations by wives , whose bonds are null , not so much because their subscriptions prove not the receipt of the money , as because , being in potestate viri , they cannot imploy it profitably for their own use , which ceases here , the accompt being for necessar furnishing , which both obliges the wife , and her husband , who is obliged to entertain his wife . the lords decerned , the pursuer always making faith , that it was a just , and true accompt , truely resting , and owing ; and would not put the pursuer to instruct the delivery by witnesses , who are at london : considering especially , that the dutches , being such an illustrious person , her subscription could not be questioned upon so small a matter , as obtained without delivery . helen iohnstoun contra robert johnstoun . eodem die . helen iohnstoun alleadging that there was a blank-bond in her brother roberts hand , to her use , and that he promised to apply the benefit thereof to her , doth pursue the brother , either to deliver the bond , or otherwise the sums therein , and offers her to prove by the debitors oath , that the bond was blank in the creditors name , when it was subscribed by him , and by witnesses above exception , that it was blank when she delivered it to the defender ; and craved the defenders oath of calumny concerning the promise . the defender alleadged , that he was not obliged to give his oath of calumny upon one point of the lybel , but upon the whole . the lords found , that he was obliged to give his oath upon one point of the lybel ; but they found that vvitnesses were not receiveable to prove the bond to have been blank , to infer redelivery of the bond , or sums ; and found likewise , that s●ing the whole lybel was only probable by his oath , he was not oblieged to give his oath of calumny , but only his oath of verity , seing he might be ensnared by denying upon his oath of calumny , which was lubrick , and of d●bious ●nterpretation , what it imported , and so might be prompted to wrong himself in his oath of verity , least it should clash with his oath of calumny . vid. . feb. . inter eosdem . lord thesaurer , and lord advocat , contra lord colvil , eodem die . the lord thesaurer , and lord advocat pursue the lord colvil for the single avail of his marriage , in so far as he was married when his predecessor was on death-bed , and was moribundus , and was married without proclamation , within seven , or eight dayes before his predecessors death , which precipitation of his marriage did manifestly p●esume that it was of fraud , to seclude the king from the benefite of the marriage , and so it was in the same case as if he had been married after his predecessors death ; and repeated the opinion of sir iohn skeen in his explicati●ns upon quoniam atachiamenta se maritagio , bearing that it was praxis fori , that if the vassal g●ve his heir in marriage upon death-bed , it was est●emed a fraud●●ent precipitation , in prejudice of the superior , and gave the superior the single avail of the marriage ; and sets down three decisions , whereby it was so found . it was answered for the defender absolvitor , because there is neither law , nor custome gives the superior the avail of the vassals marriage , if he be married before his predecessors death , but craig , and other lawyers do define this casualty to be , the avail of the appearand heir of the vassals marriage , marrying after his predecessors death : and as to the ground insinuat of fraud , by precipitation it is no wayes relevant . first , because , albeit it did appear that the defunct vassal had married his heir , of design to prevent the marriage , yet here is no fraud , but a warrantable providence , which is not dolus malus sed do●us bonus ; for fraud is never understood , but when it is contra jus delatum , and not of the preveening of jus deferendum , for thereby only the right , and interest of another is taken away : as for example , any heretor may dam , or divert the water upon his ground , as he pleases , and cannot be hindred , upon pretence that his neighbour might thereafter make use of that water for a miln to be built , and yet if the miln were built , he could not thereafter alter the course of the water ; so here the superior having no present right , but in spe , the vassal endeavouring to prevent the casualty , commits neither fraud , nor fault ; otherwise upon pretence of fraud , a marriage might be claimed , when the predecessors resign in favours of his appearand heir , or suffers his land to be appryzed , in name , or to the behove of the appearand heir , which yet was never challenged , neither hath a marriage been obtained , or demanded upon this ground by the space of these threescore years . ly , albeit prevention could be fraud , yet here is nothing alledged to infer fraud , which is never presumed , unless it be evidently proven , and when any other cause is possible , the effect is never attribute to a fraudulent cause : but here there is a most probable cause . viz. that the defunct desired to see his successor married to his satisfaction , it being very ordinar that the ruine of families arises either through the not marrying , or marrying unfitly of the heir . and as for the presumptions of fraud ; here they are neither evident , nor pregnant : as to the decisions , no respect to them ; first , because they are three●core years in desuetude ; ly , there is here nothing but the very instancing of the practiques , without deducing the case dispute , and reason of decision , neither can sk●ens conclusion take place , in all the largeness he sets it down , or else there shall need no more to infer a marriage , but that the vassal was in lecto egritudinis , albeit he had so continued of a lent disease , above a year , nothing should capacitat him to marry his heir , although he used all the solemnities of treaty , contract , and proclamation : so that the law de lecto ●gritudinis , which is only introduced in favours of heirs , that their predecessors shall not prejudge them , shall now be made use of against the heir , that his predecessor can do nothing to his benefite , on death-bed . the pursuer answered , that the feudal contract being of its own nature gratuitous and most favourable on the part of the superior , that which he hath for his fee , being ordinarly the service of the vassal , and the profit of the fee when the vassal is unserviceable , through minority ( reserving the vassals own aliment ) and the profit of the vassals tocher ; the vassal ought not to defraud , or prejudge him therein . and albeit custom hath introduced an exception , that the tocher is not due to the superior , which was gotten during the predecessors life , it being ordinarly consumed , and applyed to the predecessors use ; yet that by precipitation the appearand heir should enjoy the same , and not the superior , is against the gratitude , amity , and obliegement of the vassal : neither is there any parity in the case of a resignation , to which the superior consents , or in the case of an appryzing , wherein the superior must receive , by the force of law ; nor can the forbearance of sixty years infer a contrary custome , because this is a case rarely contingent , and oft times not known to the kings officers ; and though it were , their negligence prejudges not the king , by an express act of parliament ; neither is that a custome which people use to do , but customes here are only such as are judicial , by the kings ministers of justice , whereanent skeen expresly saith , that this is praxis , forensis ; and albeit the decisions adduced by him be not at large , yet the circumstances of fraud here , are so pregnant , that they cannot be thought to have been more pregnant in any other case , where there was no proclamation , and where the defunct was not only in lecto , but was moribundus , physicians having so declared , the common reputation being , that he would not live , and d●ing de facto , within a few dayes after , and there being no singularity in the match , nor any pressing necessity of the marriage , for any other effect . the lords found the lybel , and reply relevant ; viz. that the marriage was done , when the predecessors father was moribundus , and done wîthout proclamation , and that he died within eight dayes after , there being nothing alleadged to take off the presumption of fraud upon these circumstances . robert miln contra clarkson , february . . robert miln as donatar to a liferent escheat , having obtained a general declarator , insists now in a special declarator for mails and duties . it is alleadged for clarkson , that the pursuer has no right to the mails and duties , because he stands infeft before the rebellion . it was answered , any infefetment clarkson has , is but a base infeftment , never clede with possession till the rebellion , and year and day was run , and so is null , as to the superiour , or his donatar . it was answered , that the base infeftment is valide in it self , and albeit by the act of parliament , . a posterior publick infeftment , for causes onerous be preferable , yet that cannot be extended to the right of a liferent escheat , or to a donatar . it was answered , that by the course of rebellion , year and day the superiors infeftment revives , as to the property , during the rebels liferent , and cannot but be in as good condition as any posterior publick infeftment ; and it was so decided , march . . lady rentoun contra blackader . the lords found that the base infeftment , though prior to the denunciation , not having attained possession within year and day , could not exclude the liferent escheat . helen iohnstoun contra robert iohnstoun , eodem die . in the cause betwixt helen iohnstoun and robert iohnstoun her brother , it was further alleadged for her , that the pursuit , being a matter of breach of trust , and fraud , betwixt parties so nigh as brother and sister ; the same ought to be probable by witnesses above exception , and ought not to be referred to the defenders oath ; because it s offered to be proven that he did depone before the justices of peace in fife , that he had never had the bond in question , and yet in this process it is judicially acknowledged in the dispute that he hath the bond , and that he received it blank from the pursuers husband ; and it s now offered to be proven by his own brother , and other witnesses , above exception , that the pursuer delivered the bond to him blank after her husbands death , which being a matter of fact , and probable by witnesses , necessarly infers that the bond was not redelivered to her umquhil husband . the lords before answer ordained the witnesses ex officio to be examined , upon the pursuers delivery of the bond after her husbands death . earl of errol contra hay of crimunmogat . february . . the earl of errol pursues a declarator of redemption , against hay of crimunmogot : it was alledged absolvitor , because the defender stands infeft upon a charter granted by barcklay , with the consent of the earl of errol , proomni suo jure , long after the reversion , granted be barcklay , whereupon this redemption proceeds . it was answered for the pursuer . . that the earl only consents , and the charter bears that the sums were payed to barcklay , whose right produced is a wodset , granted by the earl of errol , and hay of vrie , bearing an expresse reversion to any lawful eldest son of hay of vrie , which failzieing to the earl of errol . ita est that the time the earl subscrived this charter , hay of vrie was alive , and had sons , at least in spe ; so that the earl of errol had not thereby the right of the reversion , and therefore his consent , without any sums received , or any absolute warrandice , cannot extend to any superveening right , which he then had not actually , but in spe et in apparentia . ly , the earls consent to barcklayes disposition , who had only the right of wodset , not bearing irredeemable , or absque reversione , cannot take away the expresse reversion of barcklayes right : for albeit an heritable right be presumed irredeemable , presumptio cedit veritati , and it cannot take away a reversion where it is . the lords found that the reversion granted in barcklayes right was not taken away by this posterior right , and charter ; but that the earls consent imported only his favour , and goodwil to transmit the right to the defender ; in respect of the alledgeances aforesaid . laird of may contra john rosse . eodem die. umquhil dumbaith having disponed several lands to his oy , iohn rosse brother to kilraick , the laird of may , dumbaiths heir-male pursues improbation and reduction of the disposition : and insisted upon this ground that the disposition was false in the date ; and that the defunct was ali●it the time it appeares to have been subscrived , and therefore is false in all . it was answered that there was only an error in the date , in respect , the same right having been conceived formerly in formerly in favours of another , dumbaith gave order to draw it over in favours of the defender verbatim , and the writer ignorantly wrote over the date as it was in that first disposition , which can no ways annul the writ , especially seeing it was offered to be proven by the witnesses insert that the writ was truly subscribed by dumbaith , and them as witnesses , when he was in his liege-poustie , against which no alledgeance of alibi by other witnesses not insert can be respected . this having been dispute in the english time ▪ the witnesses were examined before answer , by three of the judges , and now the cause was advised . the lords found the defense relevant to elide the improbation , that the writ was truly subscribed before the defunct was on death-bed , and found the samen proven by the witnesses adduc'd , and thereafter assoilzied . laird of rentoun iustice clerk , contra lady lamberton , eodem die. the lord rentoun insisted in the cause against lambertoun mentioned the . february . he now insists on this member , offering to prove that umquhil lambertoun by his commission or bond was oblidged to the estates for exact diligence ; and the pursuer being now restored , he is lyable to count to him in the same manner as to the estates , not only for his intromission , but for his negligence , whereby he suffered other persons publickly , and avowedly to cut the pursuers woods of a great value , and did no ways stop nor hinder the same , nor call them to an account . ly , he himself intrometred with the said wood , at least others by his warrand ; which warrand must be presumed in so far as he having a commission , and oblidged for diligence , did not only suffer the wood openly to be cutted , but applyed a part thereof to his own use , and was oftimes present when it was in cutting by others● the defender answered , first , that he could never be lyable to the pursuer for his omission , because his only tittle was his right of property , whereby the defender was lyable to restore to him what he had intrometted with , and not counted for , but for his oblidgement to do diligence , it was only personal granted to the estates ; and albeit they restored the pursuer to the estate , they never assigned him to that obligation . ly , the defender is secured by the act of indemnity , except in so far as he intrometted , and did not duely count , as was found by the former interloquitor in this cause : and as to the second member , it was answered that the defender being only countable for his fathers intromission not counted for , albeit he had given warrand to others , except he had received satisfaction from them , it is not his own intromission . ly , warrand or command , is only probable by writ or oath , and no way by presumption , upon such circumstances , which presumptions are also taken off by others more pregnant , viz. that these woods were cutted by persones in power and interest in the countrey , who had no relation or interest in the defenders father , whom he was not able to stop or hinder , and most part thereof was clandestinly cut and stolen away by meaner persons . it was answered for the pursuer , that he being restored , succeeds in place of the estates , and as what is done by a negotiorum gestor without warrand , is profitable for these for whom he negotiats , so must this be which was done by the estates . as to the act of indemnity , the meaning thereof can be no more then that parties who acted shall be in no worse case then they would have been with that party whom they followed , as to the second member , the pursuer answered , that what was done by others , by the defenders fathers commission must be his intromission , seing it is all one to do by himself , or by another ; and seing it cannot be called omission , it must be intromission . ly , though command or warrand is ordinarly probable by writ , or oath . yet there are casus excepti , as whatsoever is done for any party in his presence , is by all lawyers said to be ex mandato & inde oritur actio mandati , & non negotiorum gestorum , so that the presence , or tollerance of a person not only having power , but being oblidged for diligence , must much more infer his power or warrand : and albeit he was not alwayes present , yet the deeds being publick , and near the place of his abode , it is equivalent : the lords inclined not to sustain the first member , both in respect of the act of indemnity which bears in it self to be most amply extended , and in respect that the pursuer had no right to the personal obligation , or diligence : but as to the second member , the lords were more clear as to what was done in the defenders fathers presence , but in respect it was more amply proponed . the lords , before answer , ordained witnesses to be examined by the pursuer , whether or not the woods were publickly cutted , and whether or not lambertoun was at any time there present , and apply'd any thereof to his own use ; and witnesses also for the defender to be examined , wheth●r a part was cut clandestinly , and other parts by persons having no relation to lambertoun , and to whom he used any interruption . eodem die . this day there being a query formerly given by the lord thesaurer , whether or not there should be a processe of forfaulture intented against these who rose in the late rebellion , before the justice general , so that the justice might proceed against them , though absent , by putting the dittay to the tryal of an assyze , and taking witnesses thereupon ; and upon probation to proceed to the sentence of forfaulture , or whether probation in absence could not be admitted but before the parliament . there were reasons given with the query for the affirmative , viz. that there was a special statute for forfaulture of persons after their death , in which case they were absent , multo magis when they were living and contumacious . ly , because by the civil law , albeit probation , especially in criminals , cannot proceed unlesse the defender be present . yet the chief criminal doctors , except the case of lese majesty , as clarus farenatius and bartolus . ly , that the parliament proceeds to the forfaulture in absence , not by their legislative authority , but as a judicature , and what is just by them , it is just also by the justice . the lords demured long to give their answer upon thir const ●erations , that by act of parliament it is statuted that probation shall be only led in presence of the party , and that there had never been such a practice for the justices to forefault absents , but only to declare them fugitives ; whereupon , being denunced , their escheat fell , and after their liferent , and that it was not proper to the lords , especially in cases criminal , to give advice in that which might predetermine the justice general , and the justice clerk , and advocat who had been desired to peruse the books of adjournal , and they reported that they had not found a forfaulture by the justices in absence , but that they had found that a party accused for treason in holding out a house against the king , was declared fugitive , but they did not find that it was proponed to the justices to put an absent to an inquest for treason , and that it was repelled . the matter being resumed , this day , the plurality resolved for the affirmative , especially considering that of old parliaments were frequent in scotland , and now are but rare ; and that the lords of council and session , were the kings council to give his majesty their advice in general cases , what might legally be done , whether civilly or criminally andrew ker , contra children of wolmet . eodem die. umquhil wolmet having set a tack of his coal to his children for their provision , and named andrew ker of moristoun and tarsonce , overseers ; the said andrew intrometted with the coal for some years , the children pursued him before the late judges for payment of the profit of the coal . in which pursuit he did alledge that he could not count , nor pay to the children the whole profit of the coal , but so much thereof as was free over and above the back-tack duty , due both out of land and coal , by vertue of the wodset granted to iames loch , who stood thereupon publickly infeft , and to which wodset mr. mark ker his own son had right , to whom he had payed the back-tack duty , and obtained his discharge ; this being found relevant by the judges , he produced holograph discharges granted by his son ; the judges found that these holograph discharges did not prove payment made debito tempore , and therefore decerned without allowance of the back-tack duty : andrew ker pursues a reduction of this decreet as unjust , in so far as the back-tack duty was not allowed , as not payed debito tempore , whereas the back-tack being a real burden upon the whole profits jure hypothecae ; all intrometters with the profits were lyable to the wodsetter ; and so andrew ker as intrometter was lyable to the wodsetter , and was not obliged to imploy that part of the profit for anualrent to the children , although he were obliged to imploy their own means , and so might lawfully have payed the wodsetter , or keeped it in his own hand for his own relief , and the wodsetters discharge at any time was sufficient to free the children . it was answered that there was no iniquity committed , because andrew ker could only be lyable for the back-tack duty as tutor and overseer to the children , and even in that case he ought not to have payed without a distresse , otherwise he prejudged the children of their relief against the heir , who is obliged to relieve them of the back-tack duty , and when ever he were distrest , he would not he obliged to pay any anualrent to the wodsetter for the back-tack duties which was the wodsetters own annualrent , so that till the time of the distresse the whole annualrent should have been put out to the use of the children upon annualrent , so that the back-tack duties can only be allowed from this time , but not yearly as they were due , otherwise the bairns lose the benefit of the anualrent the mean time , but there being no distresse andrew ker could never be lyable to the wodsetter . it was answered for the pursuer , that the wodsetter being his own son , there was no reason to put him to any action , especially seing the defenders cannot alledge that in any such action they had a competent defense , or that the heir has any defense whereupon to exclude their relief : neither is there any reason that the children should have anualrent for the back-tack duty till it was payed , because it was not theirs , nor might he safely put it out of his hands , albeit the wodsetter had been a stranger , and albeit he be now functus officio as overseer , the title that made him lyable to the wodsetter , was as intrometter which is a perpetual obligation , the wodsetter , as all masters of the ground , having jus hypothecae upon the profit ; for payment of tack duty for which all intrometters are lyable . the lords reduced that part of the iudges decreet , and found that moristoun as intrometter was lyable to the wodsetter , and might retain so much of the profits in his hands as would pay the back-tack duty , and was not obliged to give out for the children upon annualrent : but if de facto he had given it out in his own name for annualrent found that the children should have the benefite thereof . lady milntoun contra laird of milntoun . feb. . . the lady milntoun having obtained divorce against iohn maxwel younger of calderwood her husband , before the commissars of edinburgh , sir john whitefoord of milntoun , who had gotten a disposition of her liferent-right from her husband , pursues reduction of the decreet of divorce , on these reasons that the decreet was in absence , and that he compeared befor the commissars , and craved to be admitted for his entrest , and was refused , and if he had been admitted he would have objected against paterson and clerk the only two proving witnesses , that they were not habile witnesses , being neither men of fame nor estate , and paterson by common reputation of very evil fame , and that they were not purged of partial counsel , but suborned by the lady , and had both received money to bear testimony , and promise of more , and were prompted by the pursuer how to depone . ly , as they were not habile , so neither did they prove the commission of adultery . the lords caused produce the processe , and testimonies before the commissars , and finding that the witnesses were not purged of partial counsel , they ordained them to be re-examined upon such interrogators as were not contrair to their former depositions , whereupon they were twice re-examined . paterson in his first examination before the commissars , depones that he knew john maxwel and his lady , and that he saw john maxwel in naked bed with margaret davidson lying above her , and that he upbraided iohn maxwel for it , who answered he carried not alwise his wife about with him . clerk deponed that in another moneth , at edinburgh he saw john maxwel in naked bed with margaret davidson , and that the said iohn was very displeas'd at his coming in to the room . the goodman of that house being another witnesse , deponed that john maxwel and another man , and two women lay altogether at one time in one bed in his house , and that he saw john maxwel very familiar with one of the women , embracing and kissing her , and keeping her upon his knee , whereupon he put them out of his house . another witnesse deponed , that seeing margaret davidson with child , she acknowledged to him that it was to john maxwel , and that it was commonly reported that she called the child maxwel after john maxwel . paterson and clerk being re-examined by the lords , did purge themselves of partial counsel , but at the close of their deposition , paterson acknowledged that the lady threw down a dollar and a half upon the table , which he took up before his first testimony ; and in his second re-examination acknowledgeth that she offered him five hundreth merks , and to be a bairn of the house . and both acknowledged that she gave them tokens , to make appear they knew margaret davidson by her countenance and cloaths , but both adhere to the truth of the former deposition , and being asked how they knew that woman was margaret davidson deponed that they knew her not , nor saw her ever before nor after , but that john maxwels servant , called dougal campbel being in the utter room told them several times that that womans name was margaret davidson . the lords having considered the depositions first and last , ordained the parties to debate , whether corruption or subornation of the witnesses being acknowledged by themselves in their re-examination did invalidat their testimony , and whether their testimonies not ag●eeing as in the same individual act , but as to divers facts , and divers times , and places , were sufficient to prove . it was alledged for the lady , that whoever adduced witnesses was obliged to entertain them , and also denied that ever she gave money , or promise ; and that it could not be instructed by the re-examination of the witnesses , whose post●rior testimony could never invalidat the first , or else there were an open door for prevarication and bribing of witnesses to alter their testimonies , but the opinion of all lawyers is , that a witnesse may correct himself before his testimony be perfected , and subscrived , not after . but the only way was to protest for reprobators and by other witnesses to prove the corruption of the witnesses , in which case it behoved to be proven , that there was an undertaking , or at least endeavour , that they should bear witnesse to that which they knew not to be true . as to the second point , it was alledged , that albeit the common rule be that in matters criminal , the witnesses must be contestes , both being witnesses at once to the same indevidual act , yet it had these limitations . . that though this hold in criminals specifico , yet not in crimine generico , which may be perpetrat by reiterable acts when the pursute is not capital , but either for tortour , canonical purgations , or to any civil effect , as in adultery it is crimen genericum , by reiterable acts , and therefore being pursued civiliter to separat the marriage , or to restore the joynture , it might be proven by two witnesses , though not concurring in the same individual time and place , and therefore singular , albeit not single witnesses . and the lawyers do generally give the instance in adultery , which is a secret and transient fact. and if such proof were not sufficient it would be impossible to prove it ; but if adultery were pursued criminally in these cases where it is capital , probation were required more exact , and agreeing in time and place . or if the case were in murder , which is not reiterable , witnesses not agreeing in time and place could not prove , but in adultery , haeresie simonie , and such reiterable crimes , witnesses to divers facts being in the same crime are sufficient ; for which clarus , farnatius and covaruvias were cited . it was answered , to the first point that subornation of corruption of witnesses is inferred by attempts , or endeavours to prompt the witnesses to depone that they know not , albeit they did it not , nor yet undertook it ; and that taking of any money , not only inhabilitats the witnesses , but makes the takers and givers falseers , is the opinion of all lawyers , neither may the witnesses take the expences of their travel and attendance , till it be decerned by a judge ; and as to the matter of corruption the witnesses own oath is sufficient , even by re-examination , because the adducer can never quarrel the oath of the witnesses adduced by himself , by which he carries the cause , but much more where the witnesses acknowledge , that at the first examination they were not interrogate if they were free of partial counsel , and if that be omitted , or not understood be them , they may be interrogat specially thereupon again , as was done in this case . to the second point , albeit more witnesses being singular , but not agreeing to the same fact , or some times one vvitness may be receiveable to infer tortour , or that the several vvitnesses agree not as to all the same points , and circumstances , as if the vvitnesses look through a rift or hole , albeit they cannot see all at the same instant , yet all of them see the same individual fact , or if one vvitness depone in the case of murder , that he saw the party accused with a bended pistol , or drawn sword go in to a room , but going out saw no further , and another hear the shot and the stroaks , and saw the accused coming out alone , or with a bloody sword , and a third saw the slain lying dead in a room , and no more then these , although they agree not as to the same points and minuts of time , yet all agree in one fact , but the vvitnesses not agreeing to one fact , are all single vvitnesses , and are not contestes , and so cannot be confronted , confirm'd , or redargued each by other , which is the great ground of faithfulness , and trust of testimonies ; but if one person alone can bear vvitness where he knowes none can gainsay him , it would prompt him to perjury , or mischief , and here the two vvitnesses are only ex auditu , seing neither of them knew margaret davidson but only by the report of dougal , so that both did not positively know that the person with whom they found iohn maxwel was not his lady , seing clerk neither knew the lady nor margaret davidson . it was answered for the lady , that whatever may infer subornation or corruption , it cannot be proven by the testimonies , to derogate their former depositions , unless it were proven by others upon reprobators , and as to the other point in facto reiterabili , to a civil effect , vvitnesses though not agreeing in the same fact , yet agreeing in divers facts of the same crime were sufficient . the lords found that subornation or corruption of the witnesses could be instructed by their own posterior testimony , and found the adultery sufficiently proven by the testimony of the witnesses , and assoilzied from the reduction , and found the letters orderly proceeded , used against milntoun for removing . but milntoun gave in a new bill , offering him to prove by other witnesses , the subornation and corruption of the witnesses in the divorce , being in effect a reason of reprobator , which is very competent in his reduction , and yet the lords refused the same in hoc statu processus , not being libelled or insisted in before , but superceeded execution in the removing , & as to the house and mains possest be milntoun till martimass , that in the mean time he might insist in his reprobators , as he would be served . countesse of carnwath contra earl of carnwath , february . . the countess of carnwath insists in her action of poinding the ground . it was alleadged for the defender , that the countess seasing was null , not being registrate conform to the act of parliament ; it was answered , that nullity cannot be proponed , either be the granter of the infeftment , or any representing him , or by any person who is obliged to acknowledge the infeftments ; but the earl is such a person , that albeit he brooks by a disposition from his father , yet his infeftment containes this express provision , that his father at any time during his life may dispone the lands , or any part thereof , and grant infeftments , tacks , or annualrents thereof ; so that this being unquestionably an infeftment , he cannot quarrel the same upon the not registration , but if his father had granted an obliegment to infeft , the defender could not have opposed the same , much more the infeftment being expede . it was answered , that the provision did not contain an obligation upon the defender to dispone , ratifie , or do any deed , but left only a power to his father to burden the lands , which can only be understood , being done legitimo modo , and therefore the infeftment wanting the solemnity of registration is in the same case , as if there were no infeftment , and so is null . the lords repelled the defense , and found the seasine valide , as to the defender , in respect of the foresaid provision in his infeftment . earl of southesk contra lady earls-hall , eodem die . the earl of southesk being infeft in certain lands upon the water of eden , and the salmond fishing , peruse declarator that earls-hall hath no right thereto . the pursuer produces an infeftment , in anno . in which after the land is disponed , there followes a clause , una cum salmonum in piscationibus in aquâ de eden , with a novo damus ; it was alleadged for the defender , that he hath the ●like declarator against the pursuer , which he repeats by way of defense , and produces an infeftment of the same year of god , bearing in the dispositive clause , una cum privilegio piscandi in aqua de eden solito & consuet , and alleadges that by vertue thereof , he hath good right to fish in the water , and that he had been in immemorial possession by vertue thereof . it was answered , first , that this clause cannot carry salmond fishing , which is inter regalia , and must be specially disponed . ly . the defenders right , though in the same year of god , is yet some moneths posterior to the pursuers , and as to the defenders immemorial possession , it cannot consist nor give prescription , without a sufficient title by infeftment , and it hath been frequently interrupted by the pursuer . it was answered by the defender , that he and the pursuer , and the laird of reiris having three thirds of one barony , all lying rin-ridge , the kings granting the pursuer his third cum salmonum piscationibus , added to the lands as a pendicle thereof , it cannot be understood exclusive , of the other two third parts of the same barony ; likeas reiris hath the same clause in his infeftment : and albeit earls-halls clause be not so express , yet it not being the common clause in the tenendas cum piscationibus , but in the dispositive clause of this special tenor , it must needs comprehend salmond fishing , or otherwise it would have no effect , verba autem interpretanda sunt cum effectu , and albeit the clause were dubious , yet it hath been in long possession , immemorial , which sufficiently instructs the accustomed fishing to have been before the same . ly , as to the anteriority of the pursuers infeftment , the defenders offers to prove that his predecessor was infeft before him , with this clause that is in his own infeftment produced . ly , albeit the defenders right were posterior , yet it is sufficient to give him a joint right to the salmond fishing , with the pursuer , because he offers him to prove that he hath fourty years peaceably possest the salmond fishing as the pursuer hath , when ever they were in the river . the lords found that the clause in the defenders infeftment , albeit it had been prior to the pursuers , could not give right to the salmond fishing in prejudice of the pursuers expresse infeftment of salmond fishing , unlesse the defenders infeftment had been clede with immemorial , and fourty years peaceable possession , which being so alleadged by the defender , the pursuer offered to prove interruption , and therefore a term was granted to either party to prove . mr. iohn elies contra wishart and keith , eodem die . master iohn elies having inhibit elizabeth keith his debitor , she did thereafter acquire a vvodset of certain lands within the shire , where the inhibition was published , and thereafter upon payment of part of the sums , the vvodset right was renunced pro tanto , and the rest being consigned , there is now a process of declarator of redemption , wherein mr. iohn elies compears , and produces a declarator at his instance for declaring the sums of the vvodset to belong to him , and alleadges no declarator of redemption till the whole sums contained in the vvodset consigned be given up to him , without respect of the payment or renunciation of a part , because it being done after his inhibition , it was null , and so is craved to be declared by his declarator ; it was answered ; first , that inhibitions can reach no further then to the lands the person inhibit had the time of the inhibition , but not unto lands he should happen to acquire after the inhibition , because the inhibition bearing , that the person inhibit should not sell or alienat to the prejudice of the user of the inhibition , albeit she should sell what thereafter he acquired , the user of the inhibition were in no other case , then when the same was published , the land being both gotten and gone thereafter ; and if that were the effect of inhibitions , every provident person would publish and registrat them in all the shires of the kingdom , because they can only reach lands lying in the shire where they are registrated , which was never done , neither was it ever decided , that inhibitions reached lands acquired thereafter . ly , inhibitions can never hinder persons , having right of reversion , to pay the sums , and the wodsetter to renunce , because inhibitions only restrain , debar , and inhibit to sell , &c. but doth not hinder him to pay his debt ; or upon payment of the wodset sums , to discharge the sums , and renunce the lands , these being deeds necessar , to which he might be compelled , and if this hold , no man might saflie pay an heretable band , having infeftment of annualrent , without searching the registes , which the most cautious man never did , and for this alleadged the expresse opinion of craig , that inhibitions hinder not discharges of heretable sums , or renunciations of vvodsets . it was answered , that inhibitions are personal prohibitions , restraining the person inhibit , and the leiges to alienat , buy , or sell any lands in prejudice of the user of the inhibition , and until he be satisfied of the ground thereof . which prohibition respecteth the person inhibit directly , and the lands ; but indirectly as they belong to him , so that there is no difference whether they belonged to him before or after ; for hoc ipso that they are his , they fall under the restraint : and the alienation thereof , is to the prejudice of the user of the inhibition , because if they were not sold , they might appryze the same , so that , albeit he be not in worse case then he was the time of the inhibition , yet he is in worse case then he would be , if the land had not been sold : and albeit upon uncertainty men will not registrat inhibitions through all the kingdom , that infers not but they might , and that they would be effectual to lands thereafter acquired in these shires , neither is there any ground to except the renuncing of wodsets , which are alienations of the wodset lands , but the redeemer , before he declare , or deliver the money , and take renunciation , he ought to search the registers , and to call these persons who have used inhibitions for their interests . the lords found that inhibitions reached to lands acquired after the inhibition , but were not clear that inhibition hindred renunciations of wodsets , but superceeded to give answer to that point till the first of june . laird of dury contra anna gibson , feb. . . umquhil sir alexander gibson of dury having given bond to his three daughters , for twenty thousand merks of portion a piece , and in case of decease of any of them , her portion to belong to his heir-male ; but upon the margent there is added , that the portion of the deceasing should accresce to the survivers . this dury , brother and heir-male , pursues reduction , and improbation of this bond , in so far as concerns the marginal addition , upon these grounds , that the samine was not subscribed before the witnesses insert in the bond , nor insert at that time : and that it is written by another hand , then his that wrote the body of the bond. and that it is contrair to the substitution of the body of the bond. and that albeit the writer of the body be insert in the bond , and that the bond bears , that the date and witnesses are insert by dury himself , yet it does not bear that he insert the marginal addition , which is of greater importance . it was answered , that bonds being subscribed before witness●s their testimony reaches not only to the subscription on the foot , but to the subscription of joyning the sheets , and whole marginal additions , which are as valide as any part of the body , unless it were positively proven by the witnesses that they remember that there was no addition on the margent when they subscribed ; and albeit the marginal addition be of another hand , it is offered to be proven that it is the hand-writing of dury himself , who insert the date and witnesses , which is more solemn then any other writer , especially seing the writer was not present , or witness , but only drew the draught of the bond ; and albeit he mentions not the inserting of the marginal addition , but only the inserting of date and vvitnesses that has been , because of the ordinar stile of bonds , whereof the date and vvitnesses are filled in by another hand , not being ordinar for these to write marginal additions ; and as for the importance , or contrariety of the margent to the body , that is most ordinar , especially where the body is but a draught drawen by another hand , who has erred in his intention in the substitution ; it was answered for the pursuer , that albeit the marginal addition should be proven to be holograph , yet unless it were proven to have been truely written , and subscribed at the date of the bond. it cannot prove that it is of the same date , or of any date before the defunct was on death-bed , and so it is null , and cannot prejudge the pursuer as heir , especially seing the defunct having then no sons , might probably adject this in favours of his daughters , contrair his former intention , which if it should take effect , would ruine the heir-male . the lords having taken the deposition of the witnesses insert , and both deponing that they did not remember whether the marginal addition was upon the bond when it was subscribed or no , and that it did appear by inspection , that the marginal addition was by another hand then that that wrote the body , and that it was not mentioned at the conclusion , where the defunct exprest , that he himself was filler up of the date and witnesses , and nothing was adduced to astruct that it was of a true date before his taking bed. vpon all these considerations joyntly , the lords found that the marginal addition was not of the date of the bond , and that having no date of it self , it was not instructed to have been done before the defunct was on death-bed , and so was null as to the heir : but the lords did not find that these alleadgeances severally could have derogat to the marginal addition , but only that all joyntly was sufficient , the matter being also accorded amongst the parties . antrobus contra william anderson provost of glasgow , iune , . . william antrobus having caption against iohn herbertson in glasgow , the messenger having therewith taken herbertson in his own house , and having required william anderson present provost to concur and put him in prison , and he refusing , pursues now the provost for payment of the debt . the defender alleadged , first , that the lybel was not relevant , because it did not subsume that the rebel was showen to the defender ; ly , the defender was required at an unlawful time , being betwixt eleven and twelve at night ; ly , the defender offered the concourse of the town officers ; ly , the army being come to glasgow that night , the provost was taken up at the time he was required , with the ordering of their quarters , which being a publick service of greater importance : he offering of the officers was sufficient ; ly , this subsidiary action being but for the pursuers damnage , he can pretend none , because the rebel was bankrupt , and insolvent long before , and he was incarcerat within some few dayes , where he remained a long time , during which , the pursuer might have arrested him ; and the defender yet offers to put him in prison in as good case as he then was . the pursuer answered that his lybel was most relevant , because the letters being directed to provost and bailies of burghs ; and if they be required , albeit the rebel be not in their sight , they must go with the user thereof , to any place within their jurisdiction , which they must do in their own persons , and it will not be sufficient to send their officers , and as to the time of requiring , any time that men do use to go about their affairs is sufficient , and the defender was required between seven and eight at night , and albeit it had been later , that the defender might be excusable not to come out of his own house to search , yet here he was in the same house with the rebel , and in the next room to him , and heard the noise of these that deforced the messenger , which was done by the towns officers ; neither can any pretence of ordering of quarters , stop the execution of the kings letters , which might have been done with so little diversion , and the quarters might have been ordered by the baillies . the lords found the libel relevant , but found the defenses joyntly also relevant , viz. the ordering of the quarters of the army , the ordering of the officers , and the offer now to put the rebel in prison , in as good case , and the time of night . harner contra haitly , eodem die . harner pursues haitly as representing her husband , for proving the tenor of her contract of marriage , who alleadged no process because there was no adminicle produced in write , which was most necessar in any case , but especially in this case , where the tenor of the contract was extraordinar , constituting the one half of the fee of the husbands estate to the wifes heirs , failzing the heirs of the marriage . the pursuer answered , that albeit adminicles in writ were ordinarly required , especially in writs that use to be taken away by redelivery , or cancelling ; as bonds , &c. yet the intent of adminicles , is to render it probable that such a writ was , and thereby to give ground to admit witnesses to prove , rei gestae veritatem : but here there was as strong grounds of probability , there being a marriage of a landed man , and the copy of the contract taken of the writer thereof , iohn nicol , his style book , he and his servants being witnesses , who are yet alive , and the tenor offered to be proven by them ; whereas other tenors use to be proven by witnesses that saw the writ though they were not the witnesses insert . likeas the husband having taken the right of an infeftment , for a sum , payable to him and his wife , and the heirs betwixt them ; which failzing , to his heirs , he took a ratification thereof , from the pursuer which could have no intent , if in case of failzie of heirs of the marriage , the half had not been appointed to return to her heirs . likeas , it is offered to be proven by witnesses , that the husband acknowledged that he had the contract in custody from his wife . the defender answered , that our law had rejected probation by witnesses , in matters of importance , and therefore tenors are only sustained , when their probation is partly by writ , and partly by witnesses , neither is any other probability sufficient : and it is offered to be proven , that the husband infeft his wife in his houses , of a considerable value , without any mention of a contract of marriage . the lords refused to sustain the libel without adminicles in writ , and assoilz●ed , albeit it was also offered to be proven , that the husbands whole means came by the wife . patrick wat contra william halyburton . iune . . patrick wat as assigney by adam wat his father , to a disposition granted by umquhil halyburton to him , pursues william halyburton , as representing him , to fulfil that part of the disposition , obliging him to procure the pursuers father infeft ; and for that effect , that the defender should infeft himself , and grant procuratory of resignation , for infefting the pursuer . it was alleadged for the defender , that he was not obliged to infeft the pursuer , because it was his fathers fault he was not infeft , seing he had received procuratory of resignation , and precept of seasine , with which he might have infeft himself ; and though the granter , and he the receiver , lived for twelve or fifteen years thereafter , he was negligent . ly , though the defender were obliged to enter , and denude himself ; yet it must be the pursuer finding caution to warrand and relieve him of the hazard of the ward and marriage , because the lands in question being ward through the pursuers authors fault , the defenders marriage will fall . ly , the defenders fathers name was only borrowed by hallyburton of egles-cairn , who acquired the rights blank ; and filled up the defenders fathers name therein , and moved him to dispone . the lords repelled these defenses , but reserved to the defender to pursue damnage and interest , for any hazard occurred by adam wats fault , as being more proper against his heir , than against the pursuer his second son. mr. heugh gray contra forbes minister of innerkeithing , and tennents of nether-horseburgh . iune . . the tennents of nether-horseburgh having suspended these two ministers upon double poynding , they alleadged they had made payment , bona fide , of their rents conform to their tacks . it was answered , that they were called to mr. heugh grays decreet in anno . and charged thereupon thereafter the same year , which did put them in mala fide . it was answered , that there having nothing followed upon the charge , but the charger being silent for fifteen years , the tennents favore rusticitatis , cannot be thought to continue in mala fide all that time , to infer double payment , else it might continue for fourty years . it was answered once in mala fide , ay in mala fide , and that thir tennents did still remember and suspect the pursuers right appears because they took discharges , bearing warrandice of the same . the lords ordained the defenders to produce their discharges , that the warrandice might appear , being loth to decern the tennents in double payment , if the charge could have access to the other minister , or his representatives . it was alleadged for the present incumbent of innerkeithing , that in a former double poynding , raised by the tennents , he was preferred to the cropt . and in time coming . it was answered , that the said decreet was in absence of mr. heugh gray ; and that it was null without probation , for there was nothing produced for the minister of innerkeithing , but his presentation and collation , which were but meerly general , and nothing produced to instruct , that their teinds were of his paroch , or within his benefice . it was answered , that he was secured by the act of parliament anent decreets of double poynding . the lords found that what the minister of innerkeithing , had uplifted , by vertue of that preference , the act of parliament would secure him thereanent , but found he had no right as to the future . iohnstoun contra cuninghame . iune . . james iohnstoun as assigney by william iohnstoun , to a bond granted by iames cuninghame , charges him thereon : he suspends upon this reason , that the bond bears the sum borrowed from william iohnstoun and his spouse , and payable to them , the longest liver of them two , and their heirs , there being no children betwixt them , the one half must belong to the heirs of the wife , to whom the suspender is curator , and which he ought to retain for their use : and albeit in such clauses in rights of land , or heretage , potior est conditio masculi : yet it is not so in rights moveable , and this bond is moveable , being after the act of parliament . which was so found in a practique produced , observed by dury , where the wife by her contract of marriage , disponing her goods and debts to her husband , her self ; and their heirs , the same was found to divide betwixt the husbands and the wifes heirs . it was answered , that here the bond bore annualrent , and so was heretable , quod fiscum & relictam and there being nothing to evidence that the sum was the wifes own means , the same is presumed to be the husbands : and the taking of a bond of this tenor , if it did import to give her the half , is a donation by a husband to his wife revockable , and now revocked . the lords found that the wifes heirs had no interest in the sum. iohn watson contra feuers of dunkennan iune . . john watson being superiour of a number of tenements and roads about the town of kirkaldie , pursues a declarator against the vailals , to hear and see it found and declared , that he might rive and plough the muire of dunkennan , leaving as much of the muire as would be sufficient , and convenient for the use of the vassals● their roads and tenements , for fail and devot , clay and stone , to the use foresaid . it was alleadged for the feuars , that they had raised a declarator of the right of their servitude , through the bounds of the muire , which they repeated by way of defense , and alleadged that wherever a servitude was constitute it affected the praedium serviens wholly , and every part thereof , capable of the servitude , and could not be restricted without the consent of the parties , having right of the servitude , as if any person had right of pasturage , albeit limited to so many goods , or to the goods of such land , which is the praedium dominans , beyond which it could not be reached ; a declarator of this nature would never be sustained , to astrict him to a portion of the muire , that would be sufficient for the goods of that town , or of that number ; or if he were infeft with the liberty of feuel , though there were two m●●sses , that could not be exhausted within the bounds he could not be restricted to the one , so here the vassals being infeft with the priviledge of fail ; in this muire , they may take it out of any place of the muire they please , and can be restricted to no particular place . it was answered that this servitude being limited to the use of the roads , and houses , could not be thought to be so constitute , as to make useless the whole property of the muire , the pasturage whereof is worth nothing , and the only use is , lyming and labouring , that it was hurtful to the common utility , and improvement of land , so to extend such a servitude , and that if there were a servitude of a way through the constituents ground , it would not import a liberty to make as many ways as could be made through the ground : or to change the way at the dominants pleasure . it was answered , that the nature of the servitude of a way or passage , is ordinarly limited by bounds , and is always understood to be one way , as is most convenient for the dominant , which having chosen , he cannot thereafter change ; but it is not so in the servitudes of feuel , fail , or devot ; neither can the consideration of publick utility , or that the defenders have no detriment warrand , the lords to take from him his right , or to limit it without his consent , which were only proper for a parliament , having not only the judicative , but also the legislative authority , and the rights and securities of parties , should not be lyable to conjecture , or arbitriment upon the supposition of conveniency , but should be fully enjoyed according to law. the lords found that this servitude might be astricted to a part of the muire , which might be beyond all question sufficient for the use , and with this quality , in case it failzied , they might return to that which was laboured , which behoved to be l●ft lye , as far as would be sufficient . hay of strowy contra feuers . iune . . hay of strowy being infeft in the miln of strowy , and having lately built a walk-miln , and made a new dam-head therefore , over that burn , which is the march betwixt him and the feuers , thereupon the feuers demolished the miln and the dam. he now pursues the feuers to hear and see it found and declared , that he has right to enjoy the walk-miln and dam , and that they did wrong at their own ha●d , to demolish the same . it was alleadged for the feuers , and the laird or ketr , their superiour , absolvitor , because the building of this miln , being novum ●pus , they might lawfully stop the same , and might demolish the dam , the end thereof being fixed upon their ground , without their consent . the pursuer answered ; first albeit the defenders might have impeded while the work was doing , yet they● could not after the walk-miln was a going miln , demolish the miln , or dam thereof , via facti , albeit they might have used civil interruption , and stopped it , via jur● , because its a known and common custom , that a going miln cannot be stopt summarly , being an instrument of service for common good . ly , the defenders could have no detriment by putting over the dam , because it was a precipice at their side , to which the dam was jo●●n●d , so that they had no detriment , either as to the inundation of their ground , or watering . the defenders answered , that cui libet licet uti re●uâ ad libitum and they were not obliged to dispute , whether they had damnage or not , but might cast down the dam built on their ground , unlesse their consent had been obtained ; and that there is no law nor decision for such a priviledge of milns , neither was it ever extended to walk-milns . the lords found the defenders might hinder the building of a dam● upon their ground , without necessity , to alleadge detriment ; but they found if the walk-miln was a going miln fourty eight hours● that the defenders could not brevi manu , without the authority of a iudge demolish the dam or miln . mr. david deuar contra paterson . iune . . mr. david deuar pursues a transferrence of a compt and reckoning which formerly was depending betwixt him and umquhil henry paterson , and craves it may be transferred against henry the heir , and proceed where it left . it was alleadged for the defender , absolvitor , because the citation was given before year and day , after the defuncts death , contrary to the defenders priviledge of his annus delibera●di , by which he hath inducias legales , and cannot be forced to own or repudiat the heretage . the pursuer answered ; first , that annus deliberandi is only competent , where the appearand heir is charged to enter heir , and so must either enter or renunce● and so has no place in reductions , or actions declaratory , or real actions , which may proceed against the appearand heir , without a charge . the defender answered , that albeit the annus deliberandi , be most ordinary in such cases , yet it is not limited thereto , but must take place also in all cases , where the reason of the law holds , viz. where the defender must be either absent , and suffer sentence ; or if he compear , must found himself upon the defuncts right , and so behave himself as heir , as in this case , the defender cannot alleadge articles of deduction or discharge , but upon the defuncts right ; for finding out of which right , the law giveth him a year to inquire , and use exhibitions , ad deliberandum ne incidat in damnosam haereditatem ; and therefore during that year , he cannot be prest contestare litem . the lords sustained the defense . it was further alleadged by the pursuer , that now the annus deliberandi was past . it was duplyed for the defender , that albeit it was now past , the citation was used within the year , so that that citation cannot be sustained . the lords refused to sustain the citation , and found no process till a new citation ; but here the day of compearance filled in the s●mmons , was also within the year , which if it had been after the year , us like the summons would have been sustained , especially , seing the decision of this case extending the year of deliberation , to declaratorie actions in custom had not occurred , nor been decided . minister of dalrymple contra earl of cassils . iune . . the minister of dalrymple having charged the earl of cassils for his stipend , he suspends on this reason , that he offered payment of the bolls in the ministers decreet , conform to linlithgow measure , which was the common measure of scotland , by the act of parliament , and is by act of parliament , the measure of ministers stipends . it was answered , that the ministers decreet of locality , was indefinit , and mentioned no measure , the meaning thereof was sufficiently cleared , because it was offered to be proven by the earls oath , that he payed ever since the decreet of locality , being years , conform to the measure of air , and that he knew it was the common custom of that countrey , to pay all ministers with that measure . the suspender answered , that his use of payment , either by mistake ; or benevolence of more then what he was due , could not oblige him to the future , especially where the minister did not found upon his decennalis & triennalis possessio ; but upon a decreet of locality , wherein , though the measure be indefinit , it cannot be understood to be any other measure , then the common measure of scotland , seeing the act of parliament anent ministers provisions , bears expresly , that they shall have eight chalders of victual , linlithgow measure . the lords having considered the decreet of locality , and that it did not extend to eight chalders of victual , but to three chalders of victual , and pounds , which is the rate of four chalders of victual , at pounds the chalder , as is ordinarly rated by the commission in that place of the countrey , they found the use of payment and common custom of the countrey , sufficient to declare it to be the measure of air , seing by that measure , it would not come up to eight chalders of victual . mr. iames dowglas contra william leisk , iune . . mr. iames dowglas , as donatar to the liferent escheat of william leisk , pursues a special declarator , against the tennents , for mails and duties . it was alleadged for william leisk , that the lands in question were appryzed from william leisk the rebel , and the superiour granter of this gift , charged to infeft the appryzer long before the rebellion ; to which appryzing william leisk has right , during his life , so that the charge being equivalent to an infeftment as to the time , and to the anteriority of the infeftment , and by drawing it back to the charge , doth prefer the appryzer from the time of the charge : it was alleadged for the donatar , that albeit a charge against the superiour , be equivalent to an infeftment in some cases : yet in other things it is not equivalent , as it is not a right sufficient for the appryzer to remove tennents ; and therefore the vassal is not denuded thereby , otherwise the superiour could have no casuality after such a charge , because the appryzer not being infeft , his liferent could not fall . it was answered for the defender , that albeit this consequence should follow , it is the superiours own fault , that did not receive the appryzer . it was answered , non constat , it was his fault , for he might have just reason to suspend ; and albeit it were his fault , the law hath not determined this to be his penalty , to lose his casualities . the lords repelled the defense , and found the charge on the appryzing did not denude the former vassal , but his liferent fell , and affected the ground . sir alexander hume contra creditors of kello . eodem die . sir alexander hume being donator to the forefaulture of iohn hume of kello , did obtain a warrand for retouring the said iohn five years in possession of certain lands , before the forefaulture , but the inquest served negative● and now he pursues a reduction of the retour , on this reason , that it is contrary the testimonies of the witnesses adduced . it was alleadged no process , because the reduction of retours is only competent by a summons of error , in latin , under the quarter seal . it was answered , that is only in the case where the assizers are insisted against for their error , and the constant custome of the lords has been to sustain a summons of reduction before themselves of this method . the lords sustained the defense , and refused process , albeit it was known to them , that the custom has been contrary of a long time before . sir iohn st. clair contra iohn cowper . iuly . . umquhil mr. iohn rae having two sisters , and heirs portioners , the one married to robert st clair , and the other to umquhil alexander cowper , the said alexander and his spouse , as heir portioner , assigns to robert st. clair , a number of her brothers bands : and likewise , as heir , assigns him to the maills and duties of a tenement of mr. iohn's for such terms , and in time coming . sir iohn st. clair , having appryzed robert st. clairs right , pursues iohn cowper as representing his father , to hear it declared , that this perpetual assignation to the mails and duties , did import an absolute disposition of the lands , and did carry in consequence an obligment , and all things to make the disposition effectual , and so to renew it into a legal form , containing a procuratory and precept . the defender alleadged absolvitor , because his father had granted no disposition , but only an assignation , and so the defender could be obliged to do no further . the pursuer answered , that this assignation behoved to be understood , cum effectu , and to be done to denude the granter , and to settle the right of the duties in the purchaser , and therefore , whosoever gives the right gives all necessaries in his power to accomplish it , and the informality of a clerk , ought not to evacuat the pursuers right . the lords sustained the process , and found this right to import a perpetual disposition . george allan contra fairie . eodem die . george allan pursues reduction of a disposition , granted by him to fairie , upon the reason of circumvention , in so far as the disposition , though it was conceived absolute ; yet it was expresly communed , that it should contain a reversion , and was read as containing a reversion at the subscribing thereof , which was offered to be proven by the wryter and vvitnesses insert . the defender answered , that the reason was only probable scripto vel juramento , and so solemn a writ , could not be taken away by witnesses . the pursuer answered , that the writer and witnesses insert , were most competent to prove a point in facto , viz. the fraudulent reading of that which was not contained ; and there is here also produced an antecedent adminicle in writ , to grant a right redeemable . the lords before answer , ordained the writer and witnesses insert , to be examined anent the terms of the treaty , and whether the disposition was read at the subscrybing , as an absolute or redeemable disposition . william litster contra aitoun and sleich● eodem die . william litster having arrested his debitors rent on the fifth of aprile he thereupon obtained decreet for making forthcoming in iuly . which being suspended ; conpearance is made for sleich , who had right to several appryzings of the lands , which were deduced befo●e the terms of payment of the rent , and craved preference to the arrester● because his arrestment was before the term , and the time of the arrestment , there was nothing due , and also before the term the debitor was denuded by an appryzing , whereupon infeftment followed , in decemb. thereafter , and must be drawn back , ad suam ●ausam , to the appryzing . the arrester answered , that his arrestment was valid , being laid on c●rrente termino , for the next ensuing term , at least as hath been oft times decided by the lords , and is now their constant practice : and as for the appryzing before infeftment , albeit it will carry the mails and duties , yet it is an incompleat right , and hath only the effect of a judicial assignation or disposition , so that the competition being betwixt an assigney , viz. an appryzer and the arrester , the arrestment being prior , is preferable to any assignation : neither can the infeftment on the appryzing , after the term , give any right to the rent , prior to the infeftment , but the right thereto is by the appryzing , which is but an naked assignation . the lords preferred the arrester . lord blantyre contra wakinshaw . eodem die . the lord blantire pursues a reduction of a bond , as being granted in his minority . it was alleadged for wakinshaw , assigney to the bond , absolvitor , because there was no process intented against him intra annos utiles , till the pursuer was past twenty five years . it was answered , that the defenders cedent was cited , to whom the bond was granted , and this defenders right will fall in consequence , and there was no necessity to cite him in the same way , that the service of an heir may be reduced , without calling of his creditors , or these that are infeft by him . the defender answered that his assignation was intimat before the citation against his cedent , which cannot be miskenned by the pursuer , to whom the intimation was made , after which the cedent had no right , and any citation against him was of no moment , neither is the case alike to the reduction of a retour , wherein the reducer doth neither know nor is obliged to know the creditors rights . the lords found that the assigney , after the intimation , behoved to be cited intra annos utiles ; but they sustained improvation against the citation , made against the assigney by way of defense . in this case it was not urged , whether the intimation was personal to the pursuer , or only at his dwelling house ? or whether it was recent before the citation ; for if it were not personal , or recent , it were hard to oblige the pursuer to remember so transcient an act , as an intimation . it was furder alleadged by the defender , that there was no lesion ; because he offered him to prove , that the sum was delivered to the minors curators , at least to the minor and his curators joyntly , who being persons abundantly solvendo , and very provident , the minor could have no lesion , seing they were comptable . it was answered non relevat , unless it were alleadged positive , that the sum were utiliser impensum , for the minors profit ; for the minor has his option , either to pursue the curators , as intrometting , or to reduce hi● obligation , and the curators not being in this process , no probation of the delivery of money to them will bind them , but there were necessity , that they were both cited , and it instructed by writ . the lords repelled this defense , but severals inclined not to sustain processe , till the cura●ors were first discust : and whether the minor was laesed or not . mr. roger hogg , and other creditors of wauchtoun contra countess of hume . iuly . . in an incident pursued by the creditors of wauchtoun , against the countess of hume . it was alleadged for the countess , that the incident as to several of the creditors , could not be sustained ; and likewise could not be sustained against several of the havers ; because as to these , the incident was without warrand , their names not being contained in the bill at the signet . it was answered , the bill contained several names and a blank for others , which is a sufficient warrand for the raisers of the incident , to insert whom they please . it was answered , that incidents being odious , strict form should be observed , in relation to them , so that a new pursuer cannot be supplyed by the blank , who did not supplicat by the bill , and alleadged a decision the last session , where it was so found in an incident , at the instance of the feuers of coldinghame against the lord justice clerk. the lords sustained not the incident as to any of the pursuers thereof , whose names were not in the bill , but sustained the same against any of the havers , albeit their names was not contained in the bill , it being ordinar to get summons upon bills , upon such persons named , and others wherein the persons names insert , are alwayes sustained ; but it is not so in the pursuers : and yet this would hardly been sustained in another case then an incident , which is unfavourable : cumming of alter contra lumsden . iuly . . cvmming of alter having set a salmond fishing to alexander lumsden , for payment of pounds scots of tack-duty ; he pursues matthew lumsden , as intrometter with the fish , taken for the tack duty , as having an hypotheck upon the profits for the rent . it was alleadged for the defender , absolvitor , because he intrometted with these fish , as donatar to alexander lumsden's escheat , at least having now the right of the escheat , he was not lyable for that priviledge , preferring masters of the ground , for the rent cannot take place against the king and his donatar , who is more priviledged . the lords repelled the defense , and found the donatar lyable for the rent , in so far as ilk years intromission would extend to the rent of that year . george schine contra iames christie . eodem die . george schine having adjudged an annualrent , and having charged iames christie his superiour , to receive him ; he suspends and alleadges he had appryzed the same lands before , and that his author was only infeft base , never cled with possession . the lords repelled the defense , hoc loco , and ordained him to infeft , reserving his own right as accords . schaw contra tennents . eodem die . schaw pursues certain tennents for their duties , who produced several discharges , against which it was alleadged , that the discharges were null , wanting witnesses , and were not written with the dischargers own hand , and so were null by the act of parliament . it was answered , that custome had introduced several exceptions from that act , as bills of exchange , of the greatest importance , which are valid , being subscribed without witnesses , albeit not holograph : and in like manner the discharges granted to tennents , which by long custom , through all the kingdom , use only to be subscribed by the landlords , without witnesses , and writen with another hand . the lords sustained the discharges , and would not put the tennents to prove , that they were truely subscribed , unless they were offered to be improven ; in which case , though the indirect manner was wanting , they might be improven , by comparison of subscriptions , and other adminicles , wherein less would serve , then in other improbations . sir henry hume and other the creditors of kello contra sir. alexander hume . iuly . . sir henry hume and others , being both creditors to alexander hume of kello : and iohn hume his son appryzed the lands of kello in anno . and in anno . charged the superior in anno . iohn hume is forefault upon the treasonable crimes committed in anno . sir alexander hume is donatar to the foresaulture ; the case of alexander humes right before the appryzing was , that by contract of marriage , alexander hume had disponed several husband lands to iohn , reserving his own liferent of certain husband lands . the father continued to possesse the lands reserved ; and the son of the rest . the question is now concerning the lands reserved , whereanent the competition is betwixt the creditors appryzers and the donatar . it was alleadged for the donatar , that he ought to be preferred ; because any right the creditors had , is but an appryzing , and a charge without infeftment ; which charge , albeit it be equivalent to an infeftment , in the competition betwixt con-compryzers : yet it is no way equivalent , as to the king ; for after the charge , all casualities of the superiority , would fall to the superior , and so must the casuality of forefaulture , fall to the king. ly , though the appryzers had been infeft , when they charged their infeftment , would have been long after the committing of the crime ; and there was nothing before the crime , but the naked appryzing , which was no real right ; so that the forefaulture , devolving the fee to the king , with the burden only of such real rights , as the superiour had consented to before the cryme , which cannot extend to this appryzing , which is no real right , or to the charge and infeftment thereon ; because after the crime . ly , albeit the infeftment of the son , who was forefault , was base , holden of the father ; yet it coming in the person of the king , or his donatar , can no more be a base right , but becomes publick , so soon as it is devolved to the king , which was at the committing of the crime , before the appryzers infeftment , or charge . it was answered for the creditors , that they ought to be preferred upon their legal diligence , for satisfaction of the lawful debt , contracted before the crime ; because they had appryzed before the crime , and had charged the superiour before the sentence of forefaulture : which charge is equivalent to an infeftment , and the king succeeding in the place of the forefault person uti●ur jure privato ; and albeit no● voluntar deed , after the committing of the crime , would be effectual against the king , or his donatar : yet an appryzing before the crime , and a charge before the sentence , or process of forefaulture , is sufficient in favours of the creditors ; especially seing the superiority being unquestionably in their father , they might charge him when they pleased , and having charged him , they become in his place , and cannot charge themselves as superiours of the forefault person . the lords preferred the appryzers in respect of their appryzing before the crime , and the charge after , before the forefaulture . it was further alleadged for the appryzers , that the forefault persons right being only base , never cled with possession , their appryzing against the father , who was not forefault , was preferable . it was answered for the donatar , that the forefault persons right was cled with possession , in so far as the forefault person possest a great part of the lands disponed ▪ lying all together , and of the rest , the fathers liferent being reserved the fathers possession was the sons possession . it was answered , that possession of a part , cannot be sufficient for the whole , where there is an express reservation , hindering the natural possession of the rest ; and where the rest are actually possest by another party , neither can the fathers possession be the sons ; because it is ordinarly found , that dispositions by a father to his eldest son , and infeftments thereon , reserving the fathers liferent , are not thereby cled with possession . and albeit in reservations in favours of wives , the husbands possession be the wifes possession ; yet that is a special priviledge , favore matrimonij & dotis , and is not competent to any other . it was answered for the donatar , that a reservation in favours of a father , in any gratuitous , and clandestine infeftment granted to the son , does not validate the same : yet the infeftment being for a cause onerous , viz. a marriage , which is a solemn and publick act , the infeftment following thereupon , is void of all suspition of simulation ; and as an infeftment to a stranger , reserving the disponers liferent ; would be valid by the disponers possession : so must a sons upon a contract of marriage ; otherwise great prejudice will follow , sons being frequently infeft in their fathers whole estate , reserving their liferent of a part , and ordinarly , but basely infeft , to secure the property , being more desirous to enter themselves as heirs to their fathers , after their death , if no posterior prejudicial deeds be done , which is more honourable for the family , all the infeftments would be overthrown , being upon debts contracted after the infeftment . the lords being of different iudgements in this point , were loath to decide them , because the case was decided by the former vote . stevin contra iohn boid . iuly . . in a tutor compt at the instance of stevin , against iohn boid , these queries were reported by the auditor , and determined by the lords : . how soon a tutor was obliged for annualrent of the defuncts bonds , that bare no annualrent . the lords found that the tutor behoved to have a competent time to uplift and re-imploy these sums , for which they allowed him a year , and that he was lyable for annualrent after that year . ly , how soon a tutor was obliged to do diligence to uplift his pupils means , so that if the debitor became irresponsable , the tutor was lyable . the lords found that if the pupils sums were in the hands of debitors , unquestionably solvendo , the tutor was not obliged to lift the same , unlesse the condition of some of the debitors , or cautioners , became worse , at which time he was obliged to do all diligence for uplifting the sums , unlesse the debitors became to be known , to be altogether broken upon a sudden , which he could not foresee . ly , vvhat diligence a tutor was obliged to do , whether horning was sufficient , or if caption● poynding and appryzing , were necessary . the lords found that in different cases , different executions were requisite , viz. if the debitor were known to have lands appryzable , or goods poyndable , or sums arrestable , that the tutor was obliged to do diligence accordingly , and if not to use personal execution . ly , whether the tutor should have allowance of such sums as he payed without sentence . the lords found such sums allowable , unless a competent defense could now be proponed , which was known and probable to the tutor , at the time of payment . iohn watson contra iames law. iuly . . james law having disponed certain lands to iohn watson , with absolute warrandice , and after the disposition , there being a designation of a part of the land for horse , and kines grasse , to the minister , conform to the act of parliament . watson pursues for warrandice upon that distresse . the defender alleadged absolvitor , because the distresse is by a subsequent law , falling after the disposition . it was answered : first , that absolute warrandice does even take place in the case of a subsequent law , at least in so far as the pursuer suffers detriment ; because if the lands had continued , the defenders had been so burdened ; and therefore is lyable in quantum lucratus est . ldy , this is no supervenient law , because the act of parliament is a reviving of the parliament . which being rescinded in the said parliament . by a posterior act thereof , concerning manses and gleibs , is declared to be valid , as if it had been made in the year . it was answered to the first , that nothing can infer eviction , or recourse , but that which had a cause anterior to the warrandice , unlesse it had been otherwise exprest : nor is it any ground , that if the disponer remained heretor , he had been lyable , otherwise all other supervenient burdens would return , not only upon the immediat , but upon all the disponers ; but all such accidental superveniencies , are upon the purchasers hazard , as well as the advantages are to his benefit . to the second , the time of this disposition , the parliament was rescinded , and the new act was not enacted ; neither by the new act , is it declared to be effectual from the year . as to the horse and kines grasse , but only as to the manse . it was answered , that was but a mistake of the draught of the act of parliament , there being no reason wherefore it should be drawn back as to manses , more then to the rest ; but it was the meaning of the act of parliament , to revive the former act in all points . it was answered that the meaning of acts of parliament , may not be extended contrair to the words , neither can any thing be supplyed that is omitted in a statutory act. the lords found no recourse upon the distress arysing from the act of parliament . and that the drawing back thereof being expresly , as to manses , which is adjected as a limitation , could not be extended to the ministers grass , which is statute in a different way in this , then in the act of parliament . from this the heretors are only to pay twenty pounds of money : and in the former , lands were only to be designed ; therefore found , the distress that being by a supervenient law , that the warrandice did not reach thereto . margaret scot contra sir laurence scot. iuly . . sir william scot of clerkingtoun , having granted assignation to his daughter margaret scot , of a sum due by wauchtoun : pursues sir laurence his son , as haver , to deliver the same . it was alleadged for the defender , that there was a clause in the assignation , reserving a power to sir william , to alter and dispone , during his life , and that he did assign this bond to iohn scot. it was answered , that he took a back-bond from iohn scot , bearing , that the assignation was granted in trust , to this effect only , that iohn scot should do diligence thereupon . it was answered , that the back-bond bears iohn scot to be obliged to denude in favours of sir william scot , his heirs and assigneys , whereby the assignation is altered . the pursuer answered , that there appears nothing of the alteration of the defuncts mind , more then if he had appryzed in his own name , whereby the bond would have been adjudged to him , his heirs and assigneys , which is no more , then if an assigney should use the name of the cedent , which would no ways infer , that by adjudging land to the cedent and his heirs , they pass from the assignation . the lords found no alteration in the pursuers assignation by the right made to john scot in his back-bond , which also bare the right to john scot , was made to do diligence , and for no other end . mr. john eleis contra elizabeth keith mary steuart and keith . iuly . . this cause at the instance of mr. iohn eleis against keiths , being dispute the twenty seventh of february last . the lords found inhibitions to reach lands acquired after the inhibition , but superceeded to give answer to that point , whether the inhibitions were to be extended to take away renunciations of wodset lands , which being now debated . it was alleadged that an inhibition could not hinder the granter of a wodset to pay his debt , and accept of a renunciation from the person inhibit , because a renunciation is but a discharge , and inhibitions were never found to take away discharges of heretable bonds , nor to hinder any party to pay their debt ; but on the contrair , it was an universal custom over all the kingdom , that debtors should pay their debts , and did accept discharges , and renunciations , without looking into the registers , which hath been most frequent , not only in wodsets , but mainly in infeftments of annualrent upon heretable bonds , which no man ever doubted to pay , till he searched the registers of inhibitions , et communis consuetudo pro lege habetur ; it was answered , first , that the inhibition bears , expresly a prohibition to grant renunciations , but no prohibition to grant discharges , and as to the custom , it cannot be showen that persons did pay wodsets , and take renunciations from these that were inhibit , much lesse that the lords by their decisions did approve the same , which decisions can only make a custom equivalent to law ; dly , albeit where wodsets were before the inhibition , the debtor might accept renunciation , because by the reversion , the wodsetter is obliged to grant renunciation upon payment , so that the granting of the renunciation being upon an obligment anterior to the inhibition , could not be prejudged by the inhibition , as is found in all cases , but here the wodset was contracted after the inhibition . dly , the renunciation here granted , was voluntarly accepted , and payment was voluntarly made , because there was a clause of premonition and requisition in the wodset , which was not used . it was answered that the stile of inhibitions is no rule , seing it prohibits the selling of goods and geir , to which no inhibition is extended , and there being no law , nor any dicision that an inhibition should be extended against a renunciation of a wodset , the common opinion , and common custom of the nation to the contrair is sufficient ; neither is there any difference in the custom , whether the wodset be contracted after the inhibition , or before ; and if there were , there is much more reason that wodsets contracted before , should rather be subject to the inhibition , then wodsets contracted after , by which the creditor inhibiter is in no worse condition when they are renunced , then he was the time of his inhibition , neither was the payment here made voluntar , albeit requisition was not used , because there being an obligement to pay the delay upon the requisition , being only for a few days , no prudent man would suffer himself to be charged upon the requisition , and it is no more voluntar , then if a creditor should pay before the registration of his bond , because he could not be compelled before it were registrat , and he charged ; but seing law and custom obliged not debtors to inquire for inhibitions , they may pay what way they please , and albeit there had been a requisition , yea , and a consignation , unless the debtor after inhibition , had been obliged to call the inhibiter , it could operat nothing as to the inhibiter . it was answered that there would be a great detriment to creditors , if they cannot affect wodse●s by inhibition , seing these cannot be arrested . it was answered they might be appryzed . it was answered they might be renunced before the term of payment of the creditors debt , so that appryzing could not proceed , and that a debtors whole estate may consist in a wodset . it was answered that that case could seldom occur , and that there was neither law nor custom introduced upon that account . the lords found that the inhibition could not operat against the renunciation of the woose , and decided that general point by it self , for clearing the i ieges , and ordai●ed the parties to be heard upon some other points in this particular case , as that payment of this wodset was made after the parties was in mala fide , after processe intented against him , by mr. john eleis . hamiltoun contra symintoun , eodem die . david hamiltoun as assigney by robert steel to a bond granted by andrew symintoun , pursues grissel symintoun as representing him , for payment , who alleadged absolvitor , because the alleadged bond is manifestly null , in so far as on that side where the subscriptions is , there is only the clause of registration , and all the rest is filled on the other side with another hand , and there is not one word on the subscribed side of the matter of the bond , that might have connexion with the back-side , which is unsubscribed , so that this has been the last sheet of a writ taken off , and filled upon the back , upon which anything might have been filled up , that the pursuer pleased . the pursuer answered that he oponed his bond subscribed by vvitnesses , which he byds by as a true deed , and is valide unless it were improven . the lords found this writ null , and yet declared , that if the pursuer could adduce vvrits , or adminicles to astruct the same , they would examine the same ex officio , as the vvriter and vvitnesses if they were alive . the said pursuer did also insist against the defender for her own aliment , as having right thereto from his own son , who had married her mother . it was alleadged for the defender that her mother liferented her whole estate , and so by act of parliament was obliged to aliment the appearand heir . it was answered the defender had renunced to be heir to the same pursuer , and so could not crave that benefite . it was answered , that as appearand heir , she had right to the aliment , and her offering to renunce , was but to save her from personal excution , and it could not prejudge her of her aliment , which she had received before she renunced . which the lords found relevant . lady burgy contra her tennants , and sir john strachan , iuly . . the lady burgy pursues the tennants of her liferent-lands to remove . compearance is made for sir iohn strachan , who alleadges that he stands publickly infeft in this land , and in possession , and will not suffer his tennents to remove . it was replyed that the pursuers infeftment in liferent is long before sir iohns , and could take no effect till now that her husband is dead . it is answered that the ladies infeftment is base , and therefore though it be prior to sir iohns publick infeftment , it cannot be preferred thereto , unless it were alleadged it was cled with possession before the publick infeftment , either by the ladies own possession , or at least by her husbands possession , but she cannot alleadge either , because these parties were in possession from the date of her infeftment , till the date of this publick infeftment . it was answered for the lady , that she offered her to prove , her husband was in possession after her infeftment and before the defenderes infeftment by himself , or at least by these who derived temporary , or redeemable rights from him , or his authors as liferents , wodsets , and unexpired comprysings . it was answered , that albeit favore matrimonij the husbands possession , though common author be counted the wifes possession , yet the possession of a wodsetter , or appryzer are neither said to be the wifes possession , nor the husbands , because they possess prop●io jure , and the husband had only a reversion . the lords found the alleadgeance relevant for the lady , that her husband possest after her infeftment , and before the publick infeftment , either by himself , or by any deriving a temporary right from him , or his authors . executors of the earl of dirletoun , contra duke hamiltoun , earl of crawford , and others . eodem die . in august . the earls of crawford , lanerk and several other noblemen , and gentlemen granted bond to the earl of dirletoun , bearing an obligement therein , conjunctly , and severally to pay ten merks for ilk boll of bolls of victual , that should be delivered by dirletoun to iames riddel , or his deputes , the said earl always obtaining iames riddels receipt thereupon ; which delivery , and receipt were to be betwixt and a blank day , and the receipt to be delivered before payment , the term of payment of the price was candlemas . whereupon dirletouns executors pursues the subscribers of the bond , who alleadged that this bond was clearly conditional , that the victual should be delivered betwixt and such a time , which though it be blank , yet must be understood to be before candlemas , which was before the term of payment of the pryce , and upon obtaining iames riddels , receipt thereof , ita est , there is nothing to instruct the delivery to iames riddel , or the obtaining his receipt , debito tempore . it was answered that the condition bears delivery to iames riddel , or his deputes , which terms signifies only persons under him in office , and therefore it must relate to james riddel as he was then a publick person , one of the commissars of the army under humby , ita est there is produced humbies discharge , and receipt of the victual , which is better then riddels who was his depute ; and there is also a declaration by riddel , that the victual was truely delivered . it was answered for the defenders , that their obligation being conditional , must be performed in forma specifica , so that it being in dirletouns option to deliver or n●t , if he delivered on other terms then the bond bears , it was on his own peril , neither is there anything to show that this victual was destinat for pulick use ; and albeit it had been the purpose of the defenders so to have employed the victual , yet they might choise their own way of putting it in the hands of a person whom they did trust , who without their warrand could have given it out to none , and whose trust they only followed thus qualified , that a receipt were then obtained from him , so that they are not obliged to trust humbies . receipt , nor can that prove against them for his oath , much less his acknowledgment could not bind upon them his debt , neither is humbies receipt debito tempore ; and likewise humbies receipt relates not to this bond , but bears to be conform to a contract betwixt dirletoun and the committee of estates ; neither can riddels declaration ex post facto prove against the defenders , or burden them , because they have qualified riddels trust , not to his write at any time , yea not to his oath , but to his receipt within the time limited , and there is no reason to enforce the defenders contract , to the tenor of their bond , to trust the declaration of iames riddel emitted at any time , for his condition mighht change , both as to his estate , and to his trustinesse ; and they were not obliged , though they were to trust his receipt within such a time , therefore to trust his declaration for ever ; and albeit the victual had been appointed for publick use ; yet the delivery , and receipt should have been made forthcoming to the defenders , that they might have obtained releif of the publick , but never having been delivered to this day , the defenders cannot be burdened therewith . it was answered , that dirletoun was known to be an illiterat person , and albeit he takes humbi●es discharge relative to a contract of the committee of estates , yet this same bond is understood for the name of contract , may well comprehend a bond , and the subscrivers of this bond , albeit they be not so designed in the bond , yet all of them were members of the committee of estates , and a quorum thereof , and the quantity of victual was the same , and the date of that contract is , the day of august . which showes it was not then present , and this bond is in august . and it cannot be imagined that dirletoun would have engaged in the same moneth , for . bolls of victual twice , and as to the time of the receipt and declaration , there is no clause irritant upon nor obtaining it at such a time , and that is no detriment to the defenders , neither can it be presumed that they would have obtained releif , seing they attained no releif of many publick bonds , they were ingaged into at that same time . the lords found the defense founded upon the conditional clause relevant , and the condition was not fulfilled , chiefly upon this consideration , that iames riddels receipts were not obtained in the time limited , after which the defenders were not obliged to trust any declaration of riddels , or humbies . iohn ker contra iean ker , eodem die . iohn ker being executor dative ad omissa et male appreciata , pursues iean ker as principal executrix for payment , and referred the particulars to her oath , she alleadged that she had made faith at the time of the confirmation , that nothing was omitted , or wrong prized , she could not be obliged to depone again . it was answered that this was the ordinar custome , and was no more then a re-examination , and that it would not infer perjury , though it were different , because if she had any thing omitted that had come to her possession , and knowledge after the inventar , or if she had then possest it , but did not know , or remember that it was in her possession , or in bonis defuncti , and ordinarly the prices are made be the commissar , and but upon conjecture , and may by much better known thereafter . the lords repelled the defense , and ordained the executrix to depone . mr. iames daes contra kyle , july . . master james daes being infeft by the earl of hadingtoun in certain husband lands , and aikers in earlstoun , with a general clause , of all lands within such bounds , pursues robert kyle to remove from certain aikers within that bounds , who alleadged absolvitor , because he has tacks standing from the earl of hadingtoun of all the lands possest by him , and produces the tack , bearing , the earl to have set him fourteen aikers of land presently possest by himself , and declares he has no other then what he possest before the tack , and during the time of the tack , now by the space of thirty years . the pursuer answered that his tack gave him only right to fourteen aikers , so that the pursuer , by the general clause , must have all the rest : it was answered that the defender was not obliged now to dispute the extent or quantity of his aikers , nor to restrict to the present extent of aikers , especially seing that which he did possess the time of the tack , was set to him by his tack simply without reservation ; and albeit designed fourteen aikers , and were more , it is nothing , for an erronious designation vitiats not , unless it did appear to be restrictive , or taxative ; likeas the pursuers aikers in his infeftment , will be as large proportionally as the defenders . the pursuer answered , that whatever the extent of his aikers were , the general clause gave him all that was not reserved to the defender , and he offered him to prove ; that there were six aikers beside the fourteen aikers , severally kend and known , and possest by different possessors before this tack . the defender answered , that he opponed his tack , bearing the lands to be then in his own possession , at the granting of the tack , and he having possest thirty years accordingly hoc judicio , he was not obliged to dispute any anterior possession . which the lords found relevant . hans iurgan contra captain logan , july . . captain logan a privateer having taken hans jurgan citizen of lubeck obtained his ship and goods , adjudged prize by the admiral , upon this ground that he had carried in prohibit , or counterband goods to the danes , being then the kings enemies , viz. hemp and victual , and that he was taken in the return of that voyage , which was instructed by the oaths of the said hans and sailers , hans raises a reduction of the admirals decreet on these reasons ; first , that the victual was no counterband goods , but such goods as the king allowed his own subjects to export out of england , and declared that there should be no question thereupon , nor upon any goods , not enumerat in an act of council produced all which are bellicus instruments and furniture , and hath nothing of victual ; and albeit hemp be prohibit by that act , and commonly counted counterband goods , yet the quantity deponed was only sixteen stones , which is an unconsiderable quantity , and necessar for calfing the ship , and sowing the sails , ly , the pursuer produced the duke of york his pass , warranting this ship to come from bergen , and therefore she could not have been taken in her return by any privateer . ly , whatever might have been alleadged , if the ship had been taken , having unfree goods in her , there is neither law nor custom to sease upon the ship in her return , when these goods are not in her , for the sh●p might have been sold to another , then he that did the wrong ; and it cannot appear whether the return was made out of the price of the former fraught , and though it were , it might be of a hundreth times more value . and albeit such seasures in return were allowable , yet they could only be sustained when it is evident , at the time of the seasure at sea , that the counterband goods had been in the ship that voyage , either by bills of loading , charter parties , or other writs taken in the ship , or by the o●ths , or acknowledgements of the company , otherwise upon that pretence freedom of commerce would be altogether stopped , seing every ship might be brought in● that they may be tryed by the admiral , whether or not , they had in counterband goods that voyage . ly , these strangers could not be in culpa before the indiction of the war could come to their ears , but the indiction of the war , was by the kings manifesto of the date the ninteen of september , . and this ship loosed from lubeck the of september , within five days after , and so could not possibly know the indiction , and they trading , bona fide , as they were formerly accustomed , cannot be seased as injuring the king , in assisting his enemies , and they did , nor could not know they were such . it was answered for the defender , that he had walked exactly according to his commission , bearing expresly all kind of grain to be counterband goods , and being impowered to sease upon any ship in return , that had carried in counterband goods , and that it was in the kings power leges imponere bello , and that victual is counterband goods it is evident , not only because it is the first necessary in war , especially for victualling of ships , norway being a barren countrey that hath little grain of its own , and produced a treaty betwixt the king , and the crown of sweden , wherein the swede hath a liberty to carry counterband goods ; bearing expresly in the latin ann●na , in the dutch proviant , which shows , what goods are accounted counterband goods , not only by the king , but other nations : and for this seasure in the return , it is not only warranted by the commission , but upon evident reason , because the kings allies have free trade , both with him , and his enemies , so that they partake not with his enemies against him , by furnishing them instruments , or furniture of war ; and any privat party transgressing the same , might , de rigore juris , be seased upon as an enemie● and it is favour and benignity , that the seasure is allowed only in that very voyage , in which the wrong is done . as to the duke of yorks passe , scotland being a free kingdom , and the duke not admiral of scotland , his passe , or passing from any delinquents , can only be operative in england ; and that which is produced , is only an extract out of the admirality court , bearing that such a ship was cognoseed to be a lubeck ship , and so that she might freely passe , which cannot import the dukes knowledge , much lesse his passing frae her carrying of counterband goods , as to the pretence of trading , bona fide , and the ignorance of the war , no respect ought to be had to the alleadgeance , because the war was begun , and flagrant long before the lousing of the ship , and there is no necessity of manifesto's to indict war , but acts of hostility and publick fame of a war , are sufficient to hinder allies of either parties , or neuters to assist against their friends : and here it s offered to be proven , that six moneths before this ship loused , many commissions were granted against the danes , prizes taken , and the kings subjects taken by the danes , and declared pryze at bergen , upon the account of the war , which must be presumed to be known by the pursuer : and the city of lubeck being a hanse town of trade , which keeps intercourse with london , and other towns of trade : and as to the act of council , permitting the kings subjects to trade , even in corn with his enemies , it is a special indulgence in favours of england only , and could not be effectual as to scotland , and much lesse to strangers . the pursuer answered , that there was nothing alleadged to show by law or custom , that victual is counterband goods , unlesse it were carried in to an enemy for relieving a besieged place , but not when it is but in common commerce , and if the lubeckers be hindred to trade in corn , or the like , being the only growth of their country , their trade is altogether marred , contrary to the kings interest and intention , who has written to the emperour most favourably in behalf of the hanse towns , for the freedom of their trade , and acknowledges them his good allies , and not meerly neuters , which letter is produced , neither is the palpable inconvenience answered , if privatteers may bring in all the ships , whether they carried counterband goods in that voyage , though they find none in them , neither is there any thing alleadged sufficient to instruct , that the pursuers knew , or were obliged to know of the war betwixt the king and denmark , before they loused from lubeck for any acts of hostility , before the solemn indiction produced , were such deeds as the pursuers were not obliged to notice , for the taking and declaring of prizes doth not include enimity● or war , but may be for reparation of privat injuries without intention to make an open war , although a pryze of the king of britains subjects , had been declared at buirran , it does not infer , that lubeck being a free state , at so far distance , behoved to know the same ; much lesse , that thereby there was a war betwixt the king and denmark . the lords having considered the whole debate , were of different opinions , whether the victual could be called counterband goods simply , or only when imported for relieving of sieges , or for the like war-like use , and whethe● ships could be seised in their return not having actually counterband goods in , but especially whether they could be seised without evidence at the time of the seisure at sea , that in that voyage they had in counterband goods , but they did only determine the first reason , and found it relevant , to infer that the lubeckers was in bona fide to continue the commerce , having loused within to few days of the kings manifesto ; and that no other act of hostility before , were to be presumed to have come to the knowledge of lubeck , or that thereby they were obliged to know , that there was an actual war , unlesse these strangers : knowledge were instructed by their own oaths , or that it was the common fame notour at lubeck before they loused , that there was war betwixt the king and denmark , and the defenders offering to prove the same . the lords granted commission to the kings resident at hamburgh to receive witnesses above exception , and in the mean time , ordains the strangers ship and goods to be inventared , and estimate , and delivered again to the strangers ▪ upon caution to make the same or price forthcoming , in case the defender prov'd , and prevail'd , and with the burden of the strangers damnage and expences , if they betook themselves to this manner of probation , and not to the oaths of the strangers who were present , reserving to the lords the remanent points to be decided , if the strangers knowledge of the war were known . in this processe the lords found also that competent , and emitted before the admiral , could not operat against thir strangers , qui utuntur communi jure gentium . sir harie hume contra tenents of kello , and sir alexander hume . iuly . . sir harie hume having comprized the lands of kello , compearance is made for some annualrenters , who craved preference , because their infeftments of annualrent was before the apprizing : it was answered that the infeftment of annualrent was base , never cled with possession : it was answered for the annualrenter , that he produced an antaphocha , bearing the receipt of a discharge granted by the debtor of the annualrent , which did instruct the annualrenter was in possession before the apprizing , by uplifting the annualrent from the debtor : it was answered that the sum was of fourscore merks , which was far within an terms annualrent , and that it related only to the personal bond , and not to the infeftment , and that there was more then this sum due of annualrent by the personal bond , before the date of the infeftment , to which only it behoved to be imputed : it was answered that the receipt being general in part of payment of the annualrent , he that payed the sum might impute it to what term he pleased , and so would impute it to a term after his infeftment : it was answered that before that discharge , the pursuers apprizing was led , though no infeftment thereon , after which so small a part of the annualrent could not be impute to any , but the first annualrent due , and could not validat the base infeftment . the lords found it sufficient to validat the base infeftment , notwithstanding of what was alleadged on the contrair . sir george mckenzie contra iohn fairholm , iuly . . sir george mckenzie advocat having formerly pursued reduction of a bond , granted to umquhil iohn fairholm , wherein he was cautioner for his father , and pluscardy , upon this reason , that he then being minor ▪ intertained by his father , as in his family ; his father was his administrator , and in place of a curator , so that deeds done without his fathers authorizing as curator , was null ; neither could his father authorize him to his fathers own behove , as cautioner for his father , which the lords found relevant to annul sir george's subscription ; and now sir george desiring the extract of the interloquitor . it was further alleadged , that sir george was not only cautioner for his father , but also for pluscardy , and that his father might authorize him to subscrive cautioner for pluscardy , and therefore the bond behoved to stand against him as cautioner for pluscardy ; it was answered that albeit his father might authorize him as cautioner for pluscardy , in a bond apart , wherein his father was not concerned ; yet if his being cautioner to pluscardy were to the behove of his father , he could not authorize him therein , but this bond is of that nature , for pluscardy and the pursuers father being bound conjunctly , and severally , caution adjected for any of the correi debendi , could not but be to the behove of both , because in so far the obligation was strengthned , and the payment made by the cautioner would liberat both , and if sir george should be decerned cautioner for pluscardy , it would liberat his father , and so is clearly to his behove . in respect whereof , the lords repelled also this new defense , and adhered to their former interlocutor , and found sir george's subscription for his father , and for pluscardy , to be to his fathers behove , and that he could not authorize him therein , neither did he at all directly authorize him , but in so far as they both subscrived as principal and cautioner in one bond. mr. iohn philip contra mr. iohn cheap , iuly . . master iohn philip pursues his tenents upon a disposition granted by michael philip , compearance is made for mr. iames cheap who apprized from michael philips heir , who alleadged that the disposition is null , neither being subscribed by the disponer , nor by two notars for him for albeit it mention the subscription of three notars , yet two of them subscribed not at the same time with the third , and neither of these two bear , that they did subscribe at command , but that they subscribed only for michael philip , because that he could not subscribe himself : and albeit the body of the writ mention such witnesses to the command given to these notars , yet it is written with another ink , and does not appear to be written at the time of the subscriptions , being the hand-writ of him that wrote the body , which mentions to be written by him at edinburgh , and the subscription is at newburgh , and because the notars subscription must give faith to the body of the writ , and not the body to it . it was answered , that they offer to prove by the witnesses insert , that the command was given : it was answered that the command being the most substantial point of the subscription , could not be proven , or supplied by witnesses , for the subscription of the notar , because the party could not subscribe signifies nothing without the command of the party , for whom they subscribe , and warrand or command in most ordinary matters is not at all probable by witnesses . the lords found the disposition null , and that the subscription of these two notars not bearing , that it was by command , could not be supplied by the witnesses , insert , unlesse it had been the subscription of an connotar subscribing at the same time with a notar , whose subscription bore command . here it was debated whether the subscriptions of notars at divers times were sufficient , or if the subscription of a notar who was not authorized by the english , and did forbear to act at that time were sufficient , but the former vot made these to be undecided , as not necessar , seing the writ was annulled by the former vot . sir george prestoun contra sir iohn scot , iuly . sir iohn scot having pursued for payment of an annualrent of . merks , out of sir iohn prestouns lands , he alleadged payment , thereupon li●●scontislation being made , he produces three receipts , each pounds , bearing to an accompt ; and alleadged that the odd fifty merks was for publick burden , which compleating three years , must assoilzie from bygones . it was answered the discharges bore to be but granted by a factor , which was not probative , and that they wanted witnesses , and that being given by a factor , they could not infer payment of all proceeding : it was answered that discharges of annualrents , or rents , are sufficient without witnesses . the lords found that discharges to tenents were suffi●ient without witnesses , but not being granted by an annualrenter to an heretor , and found that the factors discharge could not in●er payment of bygones . the owners of the ship called the castle of riga , contra captain seatoun eodem die . captain seatoun a privateer having taken a ship at sea , she was declared pryze at cromarty ; the owners pursue reduction of that decreet before the admiral at leith , who ass●●●zied from the reduction , and adhered to the d●creet● the owners now pursue a reduction of both these decreets upo● this ground , that by the treaty betwixt the king , and the king of sweden ; it is expresly declared , that if any swedish ships , having a passe from the kings council , or colledge of trade , or governour of the province where frae she louseth , she shall not be questioned , nor any inquiry anent the goods , or men , and that because , by the said treaty it is agreed that the said passes , shall expresly contain that the ship and whole goods , belonging to the subjects of sweden , contained no counterband goods , and that upon oath taken at the obtaining of the passe , na est , the governour of livinia , wherein riga lyes , hath given a passe , bearing that the owners of the ship called the castle of riga , being citizens of riga , did make faith that ship , being then at amsterdam , did truely belong to them , and was loaded with their goods only , and was direct to france for a loading of salt , to be returned to riga , and that there is produced an extract out of the admirality of ●rance , bearing faith to have been made , that the ship , nor goods , nor any part thereof did not belong to the french nor hollanders , and a certificat from the swedish resident in holland , registrat in the office of admirality in england , bearing this ship to be a ship belonging to the swedes , and yet she was declared pryze , upon this ground only , that the sea-men did acknowledge they were inhabitants in , and about amsterdam , and that some of them deponed , that the ship was a dutch bottom ; and one of them deponed , that they were paved by the skipper , who received the money from a water bailzie in amsterdam , without proving that the ship or goods belonged to hollanders , which could not have been ground , seing the passe , and treaty did exeem them from giving an accompt , or inquiry anent their mariners . it was answered for the defenders , that all these passes and papers were a meer contrivance , and ●alls not in the case of the treaty , because the ship loused not from riga , but from amsterdam , and the pass did not contain the particular goods , and quantities , according to the conditions of the tre●ty , and that the testimonies proved that the ship had on a dutch flag , that she came hot by the channel , but about the back side of england , and that the company was afraid to meet with scotish and english privateers ; and having met with a ship in their course , asked for the dutch fleet , calling it their own fleet , all which were strong evidences that the ship belonged to holland . it was answered that albeit the pass mentioned not the particular goods , which it could not do , the ship being but to be loaden , the certificat did abundantly supply that , expressing the loading , as for the presumptions they are of no force , because the skipper , though a dutch-man , yet was sworn a citizen of riga , and might justly be more afraid of the english and scots , then of the dutch , and they might call the dutch fleet , their own fleet , as being of their nation ; at last they produced a letter of the kings , bearing that his majesty knew by sufficient information , that this was a ship belonging to sweden ; and both by it , and by a former letter , did peremptorly command the delivery thereof , and the goods . it was answered the kings letter was impetrat upon false information ; and if his majesty had known the true state of the case as it now stands in the evidence , he would not have so written ; nor doth his majesties letter , granted inaudita parte , prejudge the privat rights of his subjects . the lords found that the testimonies of the witnesses did not prove , that the ship and goods belonged to any of his majesties enemies , and therefore , in respect of the pass , certificat , treaty , and his majesties letter , they reduced both the decreets . iuly . . this cause being again debated , it was alleadged that the former interlocutor having proceeded mainly upon his majesties letter , there was no ground to proceed thereupon , because it was granted inaudita parte , and acts of parliament being done by his majesty , without consent of of estates , prejudge no party as to their privat right , but such as are called , much less letters thus impetrat upon importunity , and groundless representation , and this letter is derogat by a posterior general letter to the lords , recorded in the sederunt , warranding the lords to proceed . and as to the swedish treaty , it can never be understood further , then as to counterband goods , which are the native commodity of the swedish dominions , for albeit some of these be dispensed to the swedes , because most of the growth of their countrey is such , yet it cannot be extended to this case , where the swedes loadned counterband goods in norway , and carry them to france , both being his majesties enemies , neither can the pass be sufficient , except as to such ships as are within sweden , and where the particular goods , upon oath are attested , and expressed in the pass , neither of which is in this case . it was answered that they opponed the former interlocutor , and that a solemn treaty , with so considerable an allie as the king of sweden , is not to be retrenched , nor limited , but by the exceptions contained in it self , and in it there is no such exception , but generally the pass , as is there qualified , excludes all search or question of men or goods , which is also the kings meaning , which appears expresly by the foresaid letter , which albeit it could not derogat from a privat right , yet may well clear the dubious interpretation of a treaty , and is sufficient in this case , where the king alone dat leges bello . the lords upon consideration of the last dispute , did ordain the president to state the case , and represent it by the secretary to the king , both as to the meaning of the treaty and the letters , and specially whether counterband goods , not being the growth of , nor loaden in sweden , were priviledged to the swedes thereby . november . . the said cause being again called , the president presented the lord secretaries letter , bearing the kings answer , that the treaty , or letter did not warrand the swedes to carry counterband goods to the countrey of his enemies , except their own countrey commodities , loaden within their own dominions . whereupon the lords sustained the admirals decreet , as to that reason of reduction , but gave the parties a time to be further hear'd before ex●ract . hend●●son contra henderson , november . . henderson insisted in the cause mentioned , ianuary . . which was again fully debated above ; and it was alleadged that the writ in question was a testament , or at least donatio mortis causa , or at least a conditional donation , to take effect only in case the disponer died before he returned , so that his simple returning , without any further , purified the condition , and made it null . the lords having considered the writ , found that albeit it was not formal , yet it had the essentials of a disposition , and donation , interviros , and that it was not null by the disponers return , unlesse he had revocked it ; for they found that the words being , that he nominat , and constitute henderson his heir , and successor , and donatar irrevockably to certain tenements in particular , with power to him ( in case the disponer returned not ) to enter by the superior , and enter to possession , and transferring all right he had in that case , which words constituting him dona●ar , they found were dispositive words , and effectual , and the adding of heir , and successor , could not evocuat the same ; and found the condition of his not returning , was not annext to the dispositive words , but to the executive clause of entering by the superior , and taking possession , which was cleared by the posterior reservation , to recal it after his return . it was further offered to be proven , that the disponer not only returned , but recalled the disposition , in so far as he had it in his own hands , and power after his return . it was answered that it was no way relevant , unlesse the delivery of it hoc intuitu were proven , for he might have had it in his hands upon many other accounts . it was answered that the very having of the writ , did presume that it was delivered , unlesse the other party would offer them to prove that it came in his hands alio nomine . which the lords found relevant . thereafter it was alleadged , that as the disponers having of it , presumed revocation , so the acquirers having of it hereafter , presumed a passing from that revocation , and a reviving of the right , and now it is in the acquirers hands ; as to this point the parties did not debate , but it occurred to the lords that the disponers having , might be sufficient to infer delivery , but would not infer that the acquirers having thereafter , would presume passing from the revocation , because the clause reserving to the disponer a power to recal , made the naked recovery of the writ sufficient to him , and did annul it , but it was more dubious , what was requisit to revive it , whether naked having , or expresse delivery , hoc intuitu , or if something were not requisite in writ , and therefore before answer to that point . the lords ordained the pursuers who now had the writ to condescend , and prove how they got it . iames maxwel contra adam maxwel , november . . james maxwel , and the umquhil lady hiltoun his spouse , having disponed their land to adam maxwel , iames now pursues a declarator of trust , whereupon the lords formerly ordained compt and reckoning , that it might appear what adam had expended upon the accompt of the trust. in which accompt adam gives up certain bonds by iames , whereunto he had taken assignation , against which , he could alleadge no more then what he truely payed out , in respect the time of the assignation he was intrusted by the pursuer . the defender alleadged non relevant , unlesse it were alleadged he was intrusted to compone for the pursuers debts ; but if it was only a trust of his land , and not a general trust of all his affairs , it could not reach their bonds , and albeit upon the account of friendship , or charity , the defender might be desired to take no more then he gave , there lyes no obligation in law , or equity upon him so to do ; but he may demand what the creditors , his cedents , or any other assigney might demand . the pursuer answered that the intent of his trust in his lands , being to preserve him from the rigour of his creditors , it was against that trust , to the trusty to use the same rigour himself . which the lords found relevant , and ordained adam only to get allowance of what he payed out . laird of culteraes contra silvester chapman , november . . cvlteraes having pursued silvester chapman for payment of a bond of two hundreth merks , subscribed by the initial letters of the defenders name . the lords sustained the pursute , the defender being in use thus to subscribe , and that he did subscribe this bond , the notar and three witnesses insert being examined , they proved the defenders custom so to subscribe , but as to the actual subscribing of this bond , two were affirmative , and two were negative , denying their subscription , deponing that they remembred not they saw the defender subscribe . the pursuers own oath was also taken ex officio , who affirmed the truth of the subscription , and that the witnesses insert were present , the question arose whether the verity of the subscription were proven . the lords found that it was sufficiently proven , the pursuer being a man above all suspition , and no improbation proponed . chalmers and gardner contra colvils , eodem die . chalmers and her children pursues hugh colvil and others , for ejecting them out of their house and lands of lady kirk , and spuilzy of their goods therein ; the lybel being admitted to probation , not only a witnesse deponed , that he saw the defender open the pursuers doors , they , being absent in edinburgh , and the keys with them , and cast out their goods and enter in possession , who was admitted , cum nota , as being interessed as tennant , and concurring with these pursuers , in a pursute with the same defenders before the council , upon the same ground , the rest of the witnesses proved , that the pursuers were in possession at , or about the time lybelled , and that they went to edinburgh , and locked their doors , and took away the keys ; and some of them deponed , that the night before the defenders entry , they saw the doors locked , and that the next day after they saw hugh colvil , and several others in the house , and several goods that were in the house cast out of the door , and that hugh continued in possession , and took in the goods again . which the lords found sufficient to prove the ejection and spuilzie , seing the defender did not instruct that he entered by authority of law. the defender alleadged at advising the cause , that the pursuer had a husband , who within this moneth , was seen at air , and offered to prove by his oath , that he had ceded the possession , being warned , and gave warrand to the defender to enter , and therefore , he being dominus bonorum , his wife and bairns had no interest to pursue , and though they had , his oath was sufficient to instruct the lawfulness of the defenders possession , and that the wifes oath in litem could not be taken , to esteem her husbands goods . it was answered , that it was notourly known , that the husband had been two years out of the countrey , and having gone to sea , was commonly repute dead , and therefore the wife being in natural possession , might lawfully pursue this action , neither was it relevant that the husband promised to quite the possession , which being but an obligation , could not warrand the defender , brevi manu , to cast them out , unless he had been present , or consented to the entry , or had given a renunciation of his possession , with a warrand to enter brevi manu . the lords , in respect both parties acknowledged , that the husband had been a great while absent , found the action competent to the wife : and found that the husbands ceding the possession , as was alleadged was not relevant , and ordained the wifes oath , as to the quantity and value of the goods spuilzied , to be taken , and granted diligence to the defender to cite the husband , if they could find him , to the same dyet to give his oath , reserving to the lords what the wifes oath could work , as to the estimation of the goods , without the husbands oath . white-head of park contra iohn stratoun , eodem die . white-head of park pursues iohn stratoun for restitution of an horse , which he delivered to his servant , to be put in the park of holy-roadhouse to the grass , and which now cannot be found . the defender alleadged that he was lyable for no loss or hazard , because at that time , and long before , there was a placad fixed upon the port of the park , that he would be answerable for no hazard or loss of any horse put in there , by stealling or otherwise , which was commonly known at , and long before that time . it was answered , that this action being founded upon the common ground of law , nautae caupones stabularij , ut quae receperint restituunt , the same cannot be taken away but by paction ; and the putting up of a placad is no wayes sufficient , nor was it ever shown to the pursuer . the defender answered , that the pursuer having only delivered his horse to his servant to be put in the park , without any express communing or conditions , it behoved to be understood on such terms as was usual with others , which were the terms exprest in the placad . which the lords found relevant , unlesse there had been a special agreement , in which case they found the defender , or his servant , should have showen what was in the placad . executors of isobel trotter contra trotter , november . . george trotter and iames lundy his cautioner , having granted a bond of . pounds to iohn trotter , and the same being assigned to isobel trotter , and confirmed by her executors , they pursue lundy , who alleadged absovitor , because he offered him to prove , that the bond was granted blank in the creditors name to iames trotter , father to the said isobel , who filled up the name of iohn trotter ( his brother ) therein , and took an assignation thereto , in favours of isobel , who was then in his family , having no means of her own , and therefore it is in the same case , as if it were a bond of provision , granted by the father to the daughter , or taken in her name , which may alwayes be discharged by the father , or altered by the father at his pleasure ; and true it is that the father submitted the same , and was decerned to discharge the same , which is equivalent to a discharge . it was replyed , albeit bonds of provision to children be alterable by their fathers before any thing follow , yet if they be delivered to the children , or which is more , if they be registrate , they become the childrens proper right , and cannot be recalled , ita est , this bond though it had been blank , ab origine , it was filled up in iohn trotters name , and filled up before the submission ; yea isobel was dead , and the sum confirmed in her testament , so that her father could not discharge it proprio nomine , or as his administrator . it occurred further to the lords , that albeit the bond was registrat , the assignation granted to the daughter was not registrat , so that if that assignation remained still in the fathers power , the case would be alike , as if it were a bond of provision , taken originally in the daughters name , yet this not being pleaded by the parties ; and that the asignation was intimat that it was not constant , that the assignation remained in the fathers hands . the lords repelled the defense , in respect of the reply . colonel seatoun contra the laird of balwhilly , november . . the laird of balwhilly having seased upon a ship belonging to the dutch , during the war , colonel seatoun , governour of the fort at brassie sound , medled with the ship and loadning , brevi manu , for the use of the garison ; balwhilly pursues a spuilzie before the admiral : colonel seatoun gives in a bill of advocation on this reason , that balwhilly having no commission , albeit he did sease upon the ship , yet it belongs to the king , and the colonel had a warrand from the lord commissioner to intromet therewith , for the garisons use , and therefore in the cause concerning the king , his majesties advocat and officers were not obliged to answer before the admiral , nor could they attend there , and therefore the advocation ought to be past . it was answered , that the reason was in causa , and not relevant , for the advocat ought to have a depute before the admiral , which is a supream court , and process maritime in the first instance ought not to be sustained before the lords , and that whatever they pretended in the poynt of right , spoliatus est ante omnia restituendus . the lords having heard the parties upon the bill in presentia , ordained the same to be past . it was then desired , that as before the admiral , the colonel behoved to find caution , not only judicio sisti , but also judicatum solvi , that he may be ordained to do the same before the lords . which the lords refused , but granted the advocation in common form . sir robert montgomery contra alexander rankein , november . . sir robert montgomery having obtained decreet against antonia brown , as representing sir iohn brown her father for two thousand merks , arrests the price of a chain due to antonia , in the hands of the lord melvil , and pursues to make forthcoming ; compears alexander rankein and produces a decreet obtained against antonia , and thereupon an arrestment by the sheriff of fifes precept , and a decreet of the sheriff thereupon , in july last , the arrestment being in the same moneth , and craves preference , because he had the first compleat diligence . it was answered , that sir robert having first arrested in march last , and first intented processe thereupon before the lords , and having insisted therein the last session , was kept off by the compearance of the lady cullerny , who also pretended right to the chain and has failed in no diligence , and therefore ought to be preferred to a posterior arrestment , albeit it have the first decreet of an inferiour court , both arrestment and citation being after his , for he having affected the sum by an arrestment , the matter became litigious , and no posterior diligence , nor sentence of an inferiour court could exclude him , he using all diligence before the supream court , and not living within the sheriffs jurisdiction , and the sheriffs decreet being only in absence , otherwise no process upon , any arrestment before the lords can be secure , but others may anticipat them , by obtaining decreets before inferiour courts , which are far sooner obtained . it was answered , that it was not the arrestment , but the sentence to make forthcoming , that transmitted the right , as being a judicial assignation , and therefore the first decreet is preferable , for as poinding might have been used upon the sheriffs precept , notwithstanding of a prior arrestment , and dependance before the lords , so must the sheriffs decreet which is equivalent , have the same effect , and sir robert ought to impute it to himself , that took not the shortest way in pursuing before the sheriff . the lords found the first arrestment , pursued before themselves sine mora , and the first citation preferable to a posterior citation , and arrestment , though obtaining the first decreet , and therefore preferred sir robert montgomery , and would not bring in the parties pari passu , the first arrestment and citation being several moneths before the other . lord iustice clerk contra the laird of lambertoun , eodem die . the lord rentoun justice clerk having pursued lambertoun for the spoiling of his woods , and planting in the beginning of the troubles , the parties did agree , that what detriment of the wood should be proven by witnesses to be adduced hinc inde , the one half thereof should be payed by lambertoun . the lords granted commission to five of their number , who examined witnesses upon the place : three of the pursuers witnesses proved the half of the damnage , to be eleven thousand merks , and gave clear reasons of their knowledge , two of them were used by the defender also , and two or three of the defenders , other witnesses deponed that the whole damnage was about two thousand merks , and a third ex auditu agreed in some points . at the advising of the cause , the question arose whether the lords might modifie betwixt the two extreams , or if they ought to judge according to any two of the highest testimonies , or according to the most pregnant testimonies , giving the clearest ground of their knowledge . the lords found the most pregnant testimonies to be the rule and decerned , according to the least , that the pursuers witnesses did prove , as being that wherein all did agree , and not according to the most quantities that some proved . mr. iohn hay of haystoun contra mr. iohn drummond , and patrick hepburn , november . . master iohn hay having pursued a reduction of the rights of some lands against mr. iohn drummond , and called for the rights made to him by umquhil patrick hepburn , mr. iohn drummond got three terms to produce , reserving his defenses , and at the last term , alleadged no certification against the rights granted by patrick hepburn , because none to represent patrick hepburn were called , a diligence was granted incidenter to the pursuer to call the representatives of patrick hepburn , whereupon he cited patrick hepburn his eldest son , and appearand heir , who having gotten one very short term , and that circumduced against him . it was now alleadged , that all the terms ought to be granted to patrick hepburn , seing he was a party necessar , to be called , and his rights were to be reduced . the pursuer answered , that this being a single reduction de jure , there was no more due but one term. dly , albeit more were due , yet mr. iohn drummond having run three terms already , he can crave no more but one , upon the account of patrick hepburn his author . the lords in respect , the term assigned to patrick hepburn , was but on six dayes , allowed him a second term , and ordained it to be intimat by the ordinar to the advocats , that in single reductions of rights of lands , they would grant two terms for production , and in reductions , and improbations three only . captain bood contra george strachan , november . . captain bood , captain of one of his majesties friggats , pursues george strachan , who had commanded that friggat for a time , and was sent a voyage therewith , from brassie-found to london , to restore a part of the out-reick of the ship , which he had not delivered , but had excepted in his discharge as being worn , stollen or lost ; and now it was offered to be proven , that he sold and disponed upon the same particulars he so reserved . the defender alleadged absolvitor from such particulars as he condescended upon , because he did waire out a considerable sum of money , fot repairing the out-rige , and necessars to the ship during the voyage , for which , in case of necessity , he might have sold a part of the out-rige . dly , albeit he might not have sold the same , yet he may retain , or compence the price thereof , with what he waired out necessarly , and profitably for the out-rige of the ship. dly he offered him to prove , that such parts of the out-rige in question● as he should condescend upon , were worne and stollen , which being his defense , he ought to be preferred in the probation , unto the pursuer , who ought to have no other probation against him , being a person intrusted but his own oath , much less a contrair probation by witnesses , that they were not lost , but disposed upon by the defender . the lords repelled the first and second defenses , and found that albeit the captain might have hypothecat his ship , or out-rige for the necessar expences waired upon her , yet that he could not sell the same , and that de facto he did not sell the same , because the pursuer offered to prove he sold them at lieth after his return , and found the same probable by witnesses , and preferred the pursuer in probation thereof , and in respect of so unwarrantable a way of disposing , they would neither allow retention , nor compensation , but left the defender to make his application to the exchequher for his payment . margaret pringle and her spouse , contra robert pringle of stichel , november . . margaret pringle pursues an exhibition of all writs granted by , or to her umquhil brother , ad deliberandum . it was alleadged no process , for writs granted by him to strangers , except such as were in his family conform to the late decision , schaw of sornbeg contra tailzifare , which they declared they would follow as a rule . the pursuer answered , that he insisted for exhibition of such writs as were granted by the defunct to any person which were in his possession , or charter chist the time of his death . which the lords sustained . duke hamiltoun contra the laird of allardine , december . . the duke of hamiltoun having charged the laird of allardine for the six terms taxation , imposed anno . he suspends on this reason , that four terms were payed by the earl of marishal sheriff , which must exoner him , and all other persons of the shire , and is instructed by the books of the clerk to the taxations . it was answered , that the reason is not relevant , because the sheriffs did ordinarly lift a part of all the six terms , and albeit the sheriff compleated the first four , yet he might have done it out of his own money , or out of the other two ; and so when the king charges for the other two , the sheriffs discharges will exclude him , so that he shall not want the first four , but so much of the other two , and therefore unless the suspender can produce a discharge of the first four , the general discharge granted to the sheriff cannot liberat him . it was answered , that when the king or his collector charges , the collectors general discharges cannot but meet himself , and whether the suspender had payed or not , the general collector cannot seek these terms twice . it is true , ●f the sheriff were charged , the suspender behoved to show to him his discharge , but the earl of marishal sheriff , could not charge the suspender for the taxation of these lands , because the earl of marishal was both sheriff , and heretor at that time , and sold the lands to the suspender with warrandice . the lords found the general discharge sufficient to the suspender , against the general collector , or any authorised by him . earl of lauderdale and iohn wachop contra major biggar , december . . the earl of lauderdale , and iohn wachop macer , pursue a reduction and improbation of the rights of the lands of hill , against major biggar , and craved certification , contra non producta . the defender alleadged no certification , because he had produced sufficient rights to exclude the pursuers title , viz. infeftments long prior to the pursuers right . it was answered , that this could not stop the certification , unless the defender would declare he would make use of no other rights in this instance , otherwise the pursuers behoved to dispute with him upon every single writ he produced , and behoved to dispute the reasons of reduction with him before the production were closed . the pursuer answered that his alleadgeance , as it is proponed , was alwise sustained without declaring that he wo●ld make use of no more . the lords found the defenses ( as proponed ) relevant , and ordained the ordinar to hear the parties debate upon the rights produced , and if these should not prove sufficient , the lords thought that the defender might be forced at the next time to produce all he would make use of in this cause , that so the pursuers were not delayed upon disputing upon every single writ . earl of cassils contra sheriff of galloway , december . . the earl of cassils pursues , the sheriff of galloway , and the tennents of achnotor●ch for abstracted multures , and insists on this ground against the sheriff , that he being heretor of the lands , and vassal to the pursuer , did command them to leave the pursuers miln , and come to his own miln , and so was liable . the defender alleadged , that this member of the summons is not relevant , because any man may desire any persons he pleases , to come to his miln , and there was never a pursute sustained against any others then the abstracters and not against these to whose miln they came . dly , it is not libelled that the defender got a greater duty upon the tennents coming to his miln , and although he had , it were not relevant . dly , by the defenders rights he is liberat of all multures , except knavship and bannock , which is only the hire due to the millers for their service , and there is no obligement upon him to cause his tennents come to the miln . it was answered , the pursuer offered to prove the defender had gotten a greater duty upon the tennents coming to his miln ; and albeit the astriction be only of knavship and bannock , that is not alone due for the millers service , but there is a profit thence arising to the master , that the sheriff being heretor and vassal , albeit he be not personally obliged to cause the tennents come to his miln , yet the lands being astricted by his infeftment , it was his fault to remove them . the lords assoilzied from that member of the lybel , and found it not relevant against the heretor , but only against the tennents . mr. rodger hog contra the countess of home , eodem die . master rodger hog having appryzed certain lands from the laird of wauchtoun in alcambus , which were sold to wauchtoun by the earl of home , with absolute warrandice : upon which warrandice there was inhibition used , whereupon mr. rodger pursues reduction , of an infeftment of warrandice of these lands , granted by the earl of home to my lady , in warrandice of the lands of hirsil , and that because the said infeftment of warrandice is posterior to the inhibition . the defender alleadged , that there could be no reduction upon the inhibition , because therewas yet no distress , which with a decreet of the liquidation of the distress , behoved to preceed any reduction ; and albeit there might be a declarator , that my ladies infeftment should not be prejudicial to the clause of warrandice , or any distress following thereupon , yet there could be no reduction till the distress were existent and liquidat . the pursuer answered , that a reduction upon an inhibition , was in effect a declarator , that the posterior rights should not prejudge the ground of the inhibition , for no reduction is absolute , but only in so far as the rights reduced , may be prejudicial to the rights , whereupon the reduction proceeds . the lords sustained the reduction to take effect , so soon as any distresse should occur . mr. iames straiton contra the countess of home , eodem die . master iames straiton minister of gordoun , having obtained decreet conform , upon an old locality , charges my lady home for payment , who suspends , and alleadges that she must be liberat of a chalder of victual contained in the decreet of locality , because after the said decreet , a part of the paroch of gordoun was dismembred , and erected in a new paroch , and the earl of home burdened with a new stipend , and the minister of gordoun liberat of a great part of his charge ; in consideration whereof , the minister then incumbent quite a chalder of his decreet of locality , and aquiesced in the rest without ever demanding any more , and so did his successors , now by the space of sixteen or twenty years . the charger answered , that his predecessors forbearance to lift that chalder , cannot instruct his consent , and though he had expresly consented , he could not prejudge his successor , unless that chalder had been applyed to the new kirk by sentence of a judge . the lords found the foresaid reason relevant against the pursuer in possessorio● ay and while he declare his right , here it was represented , that the minister had a sufficient stipend beside the chalder in question . mr. rodger hog contra the countess of home , december ▪ . . master rodger hog insisting in his reduction mentioned yesterday , upon his inhibition the countess of home alleadged , that she had right from appryzers , who would exclude the pursuers right and inhibition , and would defend her self thereupon , and not suffer her right to be reduced ex capite inhibitionis , and might thereby exclude the pursuer from any interest . it was answered , that the reduction being only upon an inhibition , there are no rights called for , but rights posterior thereto , and it cannot prejudge any prior right , which the pursuer is content shall be reserved . yet the lords admitted the defender to defend upon any prior right , that might exclude the pursuers right . hunter contra wilsons , december . . hvnter having charged wi●sons for payment of merks , contained in their bond , they suspended on this reason , the bonds bears expresly , that the same should not be payed , till the suspender be put in possession of a tenement of land in glasgow , for a part of the price whereof the bond was granted , ita est , they neither were , nor can be put in possession , because the house was burnt in the conflagration in glasgow . it was answered non relevat , because after perfecting the vendition peculium est emptoris , and therefore this being an accidental fire , wherein the seller was no wayes in culpa , nor in mora , in respect , that at that time there was a liferenter living , whose liferent was reserved in the disposition . it was answered , that albeit in some cases the peril be the buyers , yet where there is an expresse obligement , that no payment shall be until possession , by that expresse paction , payment cannot be sought . it was answered , that the buyers had taken possession after the burning , and had built the house . it was answered , that the possession of the ground , cannot be said the possession of the house , terra non est domus , and therefore this being but a small part of the price , in such a calamitous case , the suspenders ought to be liberat thereof . notwithstanding of all these alleadgeances , the lords found the letters orderly proceeded ; here the buyer was infeft before the burning , and did voluntarly take possession after the burning . robert hamiltoun clerk , contra lord balhaven , december . . the lord balhaven having disponed the barony of beill to iohn hamiltoun , son to robert hamiltoun clerk , reserving roberts liferent , with power to dispose of fou●ty chalders of victual at his pleasure , and to set tacks , for what time and duty he pleases , and containing an express provision , that it shall be leisum to robert to do any deed in favour of my lord balhaven , and that the fee shall be burdened therewith , and it is provided , that all rights robert shall acquire , shall accresce to his son , who is to marry balhavens oye , and failzying of the sons heirs , mentioned in the disposition , robert and his heirs are in the last termination . thereafter , robert enters in a minut with my lord balhaven , by which he is obliged to accept an hundreth twenty nine thousand merks , and therefore obliges himself , and as taking burden for his son , and as tutor , and administrator to him , validly , and sufficiently to denude himself and his son of their rights , to any that he should nominat : but here is a clause irritant , that if money , or sufficient persons to grant bond to robert , be not delivered to robert at lambmass last , and payment made of the money at martinmass last , that the right by the minute should expire ipso facto , without declarator . the minute was put in the duke of hamiltouns hand , that if these terms were not performed , he should cancel it . robert hamiltoun pursues now a declarator against balhaven , concluding that he hath an absolute and irredeemable right to the land , by his first disposition , and infeftment granted to him and his son , and that the clause irritant is committed , and that thereby the minute is null , and concludes against the duke , that the minut was put in his hands upon the terms foresaid , and that he ought to cancel , or deliver the same ; the dukes advocats suffered him to be holden as confest , but did not produce the minute . it was alleadged for balhaven , no process till the minute were produced , for it could not be declared null till it were seen . it was answered , that the copy of it was produced , and verbatim insert in the lybel , and the pursuer craved the minute in the terms lybelled to be declared null , without prejudice to any other minute , if they could pretend it . the lords ordained processe , but ordained the pursuer before extract , to produce the principal minute . it was further alleadged for balhaven absolvitor , because the minute being mutual , there could be no failzie in the defender , because the pursuer neither was , nor is able to perform his part of the minute , in respect the fee of the estate is in the person of the son , who cannot be denuded by any deed of the father , for as legal administrator , he hath no power , neither can any father , or tutor denude a pupil of their fee , but there must be interposed the authority of the lords in a special process , instructing a necessar cause for the minors utility , which cannot be in this case ; and though the father could denude the son , as he cannot , yet he is minor , and may revock , and yet it was offered to fulfil the minut , if the pursuer would secure the defender against the minors , by real security , or good caution . the pursuer answered , that the defense ought to be repelled , because the defender , the time of the minut , knew his right and his sons , and cannot pretend an impossibility to have made any such minut upon a ground then palpable and known , and yet contend to keep the minut above the pursuers head , but he must either take it as it stands , or suffer it to be declared void . dly , the pursuer is in sufficient capacity to denude his son , by the foresaids reservations contained in the first disposition , whereby he has full power to dispose of fourty chalders of victual , and also power to do any deed he pleased in favours of balhaven , and there could be no deed more rational , then to give a reversion of his own estate upon payment , of all that the pursuer had payed to him , or for him . the defender answered , that this general clause cannot be understood to be prejudicial to the substance of the disposition , and special clauses in favours of his son , and the defenders oye and their successors . the lords repelled the defense , and declared , but of consent of the pursuer , superceded to extract for a time , and appointed two of their number , by whose sight the ●ursuer and his son should be denuded , and the defender secured , so that it came to no debate , whether such a clause irritant , as this in a reversion of that which was truely bought and sold irredeemably before , and no wodset could be purged . iohn campbel contra constantine dougal , eodem die . constantine dougal having granted a bond to iohn houstoun , bearing that iohn for himself , and as administrator for his son , constantine campbel had lent the sum , and that the same should be payable to the father , he being on life , and failzieing him by decease , to be payable to constantine his son , as being his own proper moneys , and to his heirs or assigneys . constantine assigns this bond to iohn campbel , who having pursued exhibition thereof , and it being produced , insists for delivery . it was alleadged for the producer , that it ought to be delivered back to him , because he had right thereto by assignation from iohn houstoun , who in effect was feear of the sum , it being lent to him , and payable to him during his life , and constantine his son was only heir substitute , as is ordinarly interpret by the lords , in such bonds or sums lent by fathers to be payable to themselves , and after their decease to such bairns . dly , the father a● lawful administrator to his son , might have lifted the sum in his sons minority , and therefore he might assign the same . the pursuer answered to the first , that albeit bonds for money lent by parents , payab●e to themselves , and such children after their death , be so interpret , that the fathers are feears , yet that is only where the sums are the parents own , but this sum is acknowledged to be the sons own money b● the bond it self . dly , albeit the father as lawful administrator might have lifted the sum , yet cannot assign , because that is no proper act of administration com●●tent to tutors , or administrators , and executors may uplift sums , and yet cannot assign . the defender answered to the first , that the money is lent by the father , not only as administrator , but bears expresly for himself , and that these words as being his own money did not sufficiently prove that it came not from the father , but that after the ●athers decease , it would be the sons money . to the second , that the conception of the bond being , expresly to pay to the father , warranted him to assign , and the assign●y being his procurator , might lift as well as he , the same way as assigneies can lift during the executors life . the lords found the conception of the bond to constitute the son to be feear , and that at le●st the words as being the sons own moneys , presumed the same to have been so ab initio , unless it were positively proven , that the money when lent was the fathers , and found that the fathers assignation as lawful administrator , could not exclude the son , but that point whether the de●tors paying to the fathers assigney , during the sons pupillarity or minority , was neither positively alleadged by the parties , nor considered by the lords . iames paterson contra homes , december . . james paterson having charged the earl of home , in anno . for payment of a sum due by his bond. the earl suspended , and found one brunt-field cautioner , and at the foot of the bond of caution , home of white-●ig attested the cautioner , in these terms viz , i attest the cautioner to be sufficient , and subscribes the same , which is registrat with the bond it self , and the extract produced bearing the same , the suspension being discust against the earl of home , and the cautioner charged with horning ; paterson pursues the attester subsidiary for payment of the debt . it was alleadged for the defender absolvitor , because he having but attested the sufficiency of the cautioner ; can be holden no further then a witnesse , and so can only be found lyable if his testimony were found false , or that ex dolo , he had attested a person to be sufficient , not according to his judgement , but either contrair to his knowledge , or without knowledge of his condition , at least his attesting can only oblige him to prove that the cautioner ( when he attested him ) was holden , and repute a person sufficient for the sum , and that he had a visible e●●a●e in land , bond , or moveables . the pursuer answered , that the attester behoved to be lyable to him , because ejus facto by the attestation , the suspension was obtained , and the principal being dead without any to represent him , and the cautioner insolvendo , the at●ester is obliged , de jure , to make up the damnage falling out by his deed. the lords found the alleadgeance for the attester relevant , viz. that the cautioner was holden , and repute sufficient for such a 〈◊〉 , at the time of the attest to be proven , prout de jure . lord abercromby contra lord new-wark , eodem die . the lord abercromby having sold to the lord new-wark , the barony of st. ninians ; there was a fitted accompt subscribed by them both , in anno . containing the sums payed by new-wark , and at the foot thereof , concluding thirty seven thousand merks to be due ; but there is no mention made of the instructions in the accompt ; the second article whereof , bears payed to abercrombies creditor . thousand merks , where● upon abercromby alleadges , that seing the accompt bears not the delivery of the instructions , that new-wark at least must produce the instructions of this article which is general , for the bonds of these creditors are yet above abercrombies head , and new-wark makes use of some of them to exhaust the thirty seven thousand merks bond at the foot of the accomp●●● it was answered for new-wark , that after . years time , that he was not obliged to compt again ; but the foot of the accompt being subscribed by the pursuer , bea●ing . thousand merks to be only resting , was sufficient to exoner him , and the not mentioning of instructions delivered , cannot presume , or prove against him , that they are in his hand , else the accompt signifies nothing , and he must not only instruct this article , but all the rest ; neither did he make use of any bonds to exhaust the foot of the accompt , but such only , for which precepts were direct to him , after the accompt . the lords found the defender not lyable to compt , or produce the instructions of any of the articles , unless it were proven by his oath , or writ , that the instructions were retained in his hand . iohn auchinleck contra mary williamson and patrick gillespy , december . . mary williamson , lady cumlidge , having taken assignation to several debts of her husbands , appryzed the estate from her son ; and in september , . dispones the estate to her eldest son , reserving her own liferent of the maines , and miln , and with the burden of five thousand merks , for iohn auchinleck her second son ; at the same time her eldest son grants a tack to patrick gillespy , bearing expresly , that because he was to marry his mother , and to possesse the mains at the next term , therefore he sets the land for an inconsiderable duty , for a year after his mothers death : there was no contract of marriage betwixt the said mary , and the said patrick , but they were married in december thereafter , and he possessed it till this time , and now iohn auchinleck pursues for mails and duties bygone , and in time coming , as having assignation , to the reservation granted by his mother . it was alleadged for patrick , that as for bygones absolvitor , because he was bonae fidei possessor , by vertue of the reservation in favours of his wife , belonging to him jure mariti . dly , the assignation made to the pursuer was most fraudulent , being granted at the time of the agreement of marriage , betwixt the said patrick and his wife , and there being a provision granted to the pursuer of five thousand merks , the said mary did most fraudfully at that same time assigne the reservation , and so left nothing to her husband , but a woman past sixty years . it was answered , that where there is a solemn contract of marriage , and proclamation , deeds done thereafter cannot prejudge the husband , but here there is neither contract , nor proclamation alleadged : and albeit there had been fraud in the mother , the son ( being a boy , and absent ) was no way partaker thereof , and cannot be prejudged thereby . it was answered for the defender , that he hath a reduction depending of this ex capite fraudis , and if the wife could do no fraudful deed after the agreement of marriage , it will thereby be null , whether the son was partaker or not , unless he had been an acquirer for an onerous cause , and albeit there was no contract of marriage in writ , yet the foresaid tack evidences an agreement of marriage . at advising of the cause , the lords thought this conveyance a very cheat , and it occurred to them that the marriage , and jus mariti is a legal assignation , and there having been nothing done by the son to intimat this assignation , or to attain possession thereby before the marriage , the husband by the marriage had the first compleat right , and was therefore preferable , and likewise they found the husband free of bygones , as bonae fidei possessor , any found that the reason of reduction upon fraud , after the agreement of the marriage evidenced by the tack , bearing the narrative of the intended marriage of the same date , with the pursuers right , and the disposition to the eldest son relevant to reduce the pursuers assignation , in so far as might be prejudicial to the husband . sir thomas nicolson contra the laird of philorth , eodem die . umquhil sir thomas nicolson having pursued the laird of philorth before the late judges , as representing his grand-father , who was cautioner in a bond for the earl marishal , there being an interlocutor in the process , sir thomas dying , his son transfers the process and insists . the defender alleadged , that the bond was prescribed , as to his grand-father , by the act of parliament king iames the sixth , anent prescription of obligations , bearing that if no pursute were moved , nor document taken within years , that these bonds should prescribe ; ita est , there was no pursute , nor document against the defenders grand-father by the space of . years , and therefore as to him it was prescribed . the pursuer answered , that he opponed the act of parliament , and interloc●tor of the judges in his favours , and offered him to prove that the annualrent was payed by the principal debtor , within these . years , and his discharge granted thereupon , which was sufficient document , and the pursuer not having been negligent , nor at all bound to pursue , or seek the cautioners , when he got annualrent from the principal , the obligation of both stands entire . the defender answered , that the principal and cautioners being bound conjunctly and severally , albeit in one writ , yet the obligations of each of them was a distinct obligation , and as the cautioner might be discharged , and yet the principal obligation stand , so the prescription is a legall discharge , presuming the creditor past from the cautioner , seing he never owned him for . years , which is most favourable on the part of cautioners , who otherwise may remain under unknown obligations for an hundreth years . the pursuer answered , that albeit there might have been some appearance of reason , if the persons obliged had been all co-principals , or bound by distinct writs , yet whether writ and obligation is one , and the cautioners obligation thereby but accessory , and the creditor no way negligent , there is no ground of such a presumption , that the creditor past from any party obliged , and the obligations mentioned in the act of parliament , is not to be meaned according to the subtility of distinction of different notions of obligations , but according to the common style , and meaning of obligations , whereby one writ obliging principal , and cautioners , is always accompted an obligation , which is sufficiently preserved , by payment obtained from the principal . the lords adhered to the former interlocutor , and repelled the defense of prescription , in respect of the reply , of payment made of the annualrents , made by the principal . robert d●by contra the lady of stonyhil , eodem die . the lady stonyhil being provided in liferent , to an annualrent of . merks , her son pursues her for an aliment , both upon the act of parliament , in respect that the defuncts debt was equivalent to all the rest of the estate , beside her liferent , and also super jure naturae , as being obliged to aliment her son , he having no mea●● , and she having a plentiful provision . the lords in consideration of the newnesse of the case , and that the debts that might exhaust the estate , were most part personal , and no infeftment thereon , before or after the defuncts death , recommended to one of their number to endeavour to agree the parties . adam gairns contra elizabeth arthur , december . . adam gairns as assigney , constitute by patrick hepburn , pursues elizabeth arthur for the drogs furnished to her , and her children at her desire ; it was alleadged absolvitor , because she was , and is cled with a husband , and the furniture could only oblige him , but not her . it was replyed , that she had a peculiar estate left by her father , wherefrom her husband was secluded , and which was appointed for her entertainment , that her husband was at that time , and yet out of the countrey , and hath no means . the lords found the reply r●levant arc●ibald wils●n contra the magistrats of queens-ferry , ianuary . . archibald wilson being elected on of the baillies of the south queens-ferry , and being charged to accept , and exerce the office , suspends on this reason , that by the . act , parliament . king iames the . no magistrate of burgh is to be continued in office longer then one year , and by a particular act of that burgh , no magistrat is to continue above two years ; and true it is that the suspender hath served as baillie two years already . it was answered , that the act of parliament is long since in desuetude ; and as to the act of the burgh , the election of the suspender being done by them , who have power to make that act , is in effect an alterationt hereof , and this burgh being poor , and penury of persons to serve , it will dissolve the same , and discourage all others to serve , if the suspender be liberat. the lords found the reasons of suspension relevant●● and found that the suspender could not be compelled to serve longer then one year at once in the same office. dow of arnho contra● campbel of calder , ianuary . . dow of aricho having pursued campbel of calder , as heir to his father , for payment of a bond , wherein his father was cautioner , for the marquess of argyl , the bond bore but one witnesse to calders subscription ; and george campbel one of the witnesses being examined if he saw him subscribe , deponed negative , but that it was calders hand writ to the best of his knowledge ; there was also other writs produced , subscribed by calder , to compare the subscriptions . the lords would not sustain the bond , having but one witnesse insert to calders subscrsption , upon the foresaid testimony , and adminicles . mr. iohn forbes contra innis , ianuary . : master john forbes as assigney to margaret allerdes , having obtained decreet of removing against margaret innis , for removing from the lands of savet , wherein the said margaret allardes is infeft in liferent , which being suspended . it was alleadged , first , that this pursu●e is to the behove of margaret allerdes , who could not obtain a removing against the defender , because the defenders husband being infeft , by the said margaret allardes husband , and author of the lands of savet principally , and of the lands of govan , and others in warrandice . the said margaret allardes did consent to the disposition of the warrandice-lands , by which she obliged her self to do no deed in the contrair of that right , and is also bound in warrandice with her husband , ita est her pursuing this action is a deed in prejudice of the right of warrandice-lands , in so far as thereby the person having right to the principal lands , upon eviction recurrs upon the warrandice-lands , and so the consenters own deed prejudges the same . it was answered , that by deeds contrair to warrandice , were only understood , some right granted by the disponer , or consenter , in prejudice of the right consented to , but no wayes a pursute upon any other right of the consenter , for it were against reason and justice , that a purchaser , to make himself secure , requiring a wifes consent to lands to which she had no right , either principal , or in warrandice of other lands , that her consent should prejudge her , as to her liferent lands , of which there was no mention ; and as to her personal obligement to warrand the lands wherein she was never infeft , it is null , and can never oblige her , being a wife . the lords found that this warrandice did not oblige the wife , and that her consent did not hinder her to pursue upon her own liferent , albeit ex consequente , her pursute excluded one having a posterior right to her liferent-lands , who thereupon had recourse to the warrandice-lands , to which she consented , seing she had granted no right prejudicial to the right consented to . it was further alleadged , that the said margaret allardes agreed with the person having right to her liferent-lands , principally that she should accept the warrandice-lands , in stead of her liferent-lands , which excambion putting the right of the warrandice-lands now in her person , she who consented to the right thereof , can never come in the contrair of her own consent to prejudge the same . it was answered , that a cons●nt cannot exclude any supervenient right of the consenter , but only such rights as the consenter had the time of the consent , it is true , that a disponer with absolute warrandice , if he acquire a right , it accresces to his successor , but it is not so in a consenter , whose warrandice is not found to be obligator , further then as to the rights in the consenters person at that time . which the lords sustained . it was further alleadged , that the pursute as to the behove of the heir of the disponer , of the lands in question , whose predecessor being bound in absolute warrandice , he can make no use of no right prejudicial to his warrandice . dly , albeit he be not heir , yet he hath behaved himself as heir , and thereby is lyable to fulfil the defuncts warrandice , and so cannot come against it . it was answered , that behaving as heir , being a vitious passive title , is not sustainable by way of exception in this case . the lords sustained the same , and found both members of the alleadgeance relevant . margaret forbes contra 〈…〉 eodem die . margaret forbes having granted a tack of her liferent-lands to 〈…〉 bearing expresly for payment of such a sum of money , and bearing to endure for . years ; she did receive a back-bond of that same date , bearing , that so soon as the sum was payed , the tack should become void ; the tack coming to a singular successor , she pursues him for compt and reckoning , and removing , and insists upon the tenor of the tack , and back-bond . it was alleadged for the defender , that the back-bond did not militat against him , being a singular successor , neither being registrat , nor intimat to him before his right , in respect the tack is a real right , and no obligement or provision of the tacks-man can prejudge a singular successor . the lords repelled the defense , and sustained processe against the defender , in respect of the tack , and back-bond . the old lady clerkingtoun contra clerkingtoun , and the young lady , ianuary . . the old lady clerkingtoun being infeft in an annualrent of seven chalders of victual , out of the mains of clerkingtoun , for thirty six years bygone ; she pursues a poinding of the ground . it was answered for the laird and his mother , that the pursuer having been so long out of possession , cannot make use of a possessory judgement , but must first declare her right . dly , the young lady is also infeft in an annualrent , and hath been ( by vertue thereof ) more then seven years in possession , and so hath the benefit of a possessory judgement , till her right be reduced , and cannot be dispossest by the old ladies posterior infeftment . the lords repelled both the defenses , and found that an annualrent is debitum fundi , and is not excluded by possession of a posterior right , and needs no declarator , and that an annualrent hath not the benefit of a possessory judgement , against a prior annualrent . the laird of glencorsse younger , contra his brethren and sisters , ianuary . . the laird of glencorsse having married his eldest son , and having disponed to him his whole estate , with warrandice after the disposition , he did deliver certain bonds of provision in favours of his other children , unto these children , whereupon they appryze the lands disponed to his son : in this contract there was a liferent reserved to the father , and nine thousand merks of tocher payed to the father . the son pursues a reduction of the bairns infeftment , and bonds , in so far as might be prejudicial to the disposition granted to him , upon this reason , that the bonds were no delivered evidents before his disposition . it was answered , that they were valide , though not delivered , because the fathers custody was the childrens custody , especially they being in his family , both at the time of the subscribing of the bonds , and of the making of this disposition ; and it was ●ever contraverted , but that bonds granted by a father to his children , though never delivered during his life , but found amongst his writs after his death , were valide both to affect his heirs , and executors . the pursuer answered , that his reason of reduction stands yet relevant , notwithstanding the answer , because , albeit it be true , that bonds , dispositions , and provisions in favours of children are valide when they are delivered by the parents in their life , or if they have remained uncancelled in their hands till their death , yet till delivery , or death , they are still pendent ambulatory rights , and may always be recalled at the pleasure of the granter , and any deed done by him , expresly recalling them , or clearly inferring his mind to recall them , doth annul them before delivery , ita est , the pursuers disposition bearing expresse warrandice against all deeds done , or to be done by the father , granter of these bonds , doth evidently declare his mind , that his purpose was not , that these bonds should affect these lands , otherwise he would either reserve the bonds , or a power to burden the lands , and if this were sustained , no contract of marriage , disponing the fee to a son , could be secure , it being easie to grant such bonds , and to keep them up above the sons head , and therewith to affect the fee ; yea , it would be sufficient against any stranger , unlesse it were for an onerous cause . kly , there is not only a revocation , but these provisions were no debt of the fathers , prior to the sons disposition , or delivery , for albeit the date be prior , yet the time of their becoming a debt , is only death , or delivery , and therefore , all debt contracted , or deeds done by the father before his death , or delivery of the bonds , are prior as to the obligation thereof , to the bonds , so that the sons disposition is truly prior as to its obligations , to these bonds . the defender answered to the first , that albeit such bonds be revocable before delivery , yet here there is no expresse revocation , but only presumption inserred , from the fathers giving a posterior disposition , which is no sufficient ground , either ●rom the disposition , or the warrandice , for the fathers mind might have been , that he would endeavour ( out of his li●erent , or moveables ) to portion his children , and so would not absolutely burden the fee ; but yet in case he should die , or not be able to do it , he would not revock the bonds , even as to that right , which is much rather to be presumed , as being much more rational , and probable , seing there is not any provision , or power of provision reserved in the contract , neither is there any competent way alleadged for providing of three children , but if this sole presumption be sufficient , though a father should dispone his whole estate , without any reservation of children , or to be so inconsiderat , as not to except his aliment , all prior provisions for his life-rent ( undelivered ) should cease , and become ineffectual , contrair to that natural obligation of parents to provide their children , against which , no presumption can be prevalent . as to the other ground , provisions , though not delivered , can be in no worse case then bonds delivered with a condition , that the father might recall the same , which would be valid from their date , if they were never actually recalled , and so must bonds of provision be , at least as to gratuitous deeds after their date , though before delivery , as if a father should grant bonds of provision to many children at once , and should deliver some of them before the rest , if he had not means sufficient to pay all , the bonds first delivered , could not be thought to exhaust his whole means , and exclude the other bonds of provision , but all would come in pari passu , according to their dates , except their diligence alter the case . the lords ( notwithstanding of what was alleadged ) found the reason of reduction relevant , and that the undelivered bonds of provision , though prior in date , yet posterior in delivery , could not affect the fee interveening . here there was much alleadged upon the onerosity of the pursuers disposition , which came not to be considered in the decision . grant contra grant , ianuary . . william grant of markinsh pursues a tutor compt , against iohn grant of ballandallock his tutor , in which these points being reported to the lords , whether the tutor were lyable for the value of services of the pupils tennents , by harrowing , plowing , and shearing , &c. and for which the tutor received no money , but the services in kind . the lords found the tutor not comptable therefore , because he could not force the tennents to pay any price for the same . and as to that point , the tutor being super-expended , the pupil might be decerned upon the pupils own process , against the tutor , without a distinct process at the tutor instance . the lords found he might . parkman contra captain allan , ianuary . . captain allan having obtained a decreet against parkman a swede , adjudging his ship pryze upon these grounds , that she was sailed with three persons of her company being hollanders , and danes , being then the kings enemies , and because she had carried of the enemies goods from bergen in norway , to amsterdam , from whence , having gone to france with ballast , and being loaden there with salt , she did also carry in to france six barrels of tar , which was sold in france , as appears by an accompt betwixt the ●kipper and his factor in france , bearing so much to be payed of the kings and towns custom of the tar , which necessarly imports that it was sold there ; likewise she carried in stock-fish , being commeatus , and counterband goods , so that having sold several lasts of tar in holland , and these barrals , and stock-fish in france , which are clearly counterband goods , and being taken in her return from france , having in her the product of these counterband goods , whereupon she was j●●tly declared prize , conform to the lord admirals commission , ordaining ships of allies to be taken , having in enemies goods , or counterband goods , or the return of counterband goods . parkman raised a reduction of this decreet , on these reasons ; first , that the crown of sweden , not only being an allie to the king , but having a solemn treaty with him ; in the second article whereof it is specially agreed , that the subjects of sweden having passes from the governour of the city , or province where they louse , or from the colledge of trade , bearing that faith had been made , that the ship , men and goods did belong to the swede , and none other ; and that they had therein no prohibit goods , that such a passe being shown in any ship , there should be no further search , or inquiry in the men or goods , the like whereof is granted to the kings subjects , either king trusting the governours of the other in that matter ; by which treaty also , counterband goods are determined , amongst which , tar or stock-fish are no particulars , ita est , parkman had a passe when he loused from sweden , conform to the treaty , likeas there is a second passe sent over-land to him , when he loused from amsterdam to france , which being shown to captain allan at the seasure , he ought not to have taken him , or enquired any further , nor can he now make it appear that parkman hath transgrest the treaty , and as to the three men of his company , one was hired in denmark , and two in holland upon necessity , so many being wanting of his necessary company by death , or absence there , so that what he did of necessity , and not to advance the interest of the kings enemies , can be no delinquence . dly , whatever might have been alleadged against him , if he had been taken with enemies goods aboard , or with counterband goods , which are such by the swedish treaty , yet he was seased , having none of the goods aboard , nor the product thereof , but of his fraught , and upon the accompt of his owners in sweden he could not be pryze , because there is nothing in the treaty , bearing that ships should be pryze , not having actually in them enemies goods , nor counterband goods , but the product , or return thereof ; neither doth it appear that he sold any tar in france , for the entering of the tar , or paying custom , will not necessarly import it was sold , but his factor might have unwarrantably put up that article , which being wholly inconsiderable he did not contravert , and by the same papers taken aboard , it did appear , that at his lousing from france , he had the same quantity of tar , which was inconsiderable , and necessar for the use of his ship , being an old ship , and two barrels was found aboard when she was taken , and some part behoved to be allowed for the use of the ship , so that at most there could be but one or two small barrals of tar sold , which is inconsiderable , and could be no ground for declaring an allie pryze , nam de minimis non curat lex , and as to the stock-fish , or any commeatus , or provision , quae habent promiscuum usum in bello & pace , they are only counterband , when they are carried in to relieve a beseiged place , or to these that could not subsist without them , according to the reason and opinion of grot●us de jure belli , lib. . cap. de his quae in bello licent . it was answered for captain allan , that the reasons of reduction ought to be repelled , because albeit parkman got a passe from sweder , conform to the treaty , and according thereto came from sweden to denmark , in which passage he was not challenged , but having engadged in denmark to serve the danes , then the kings enemies , he did unquestionably carry merces hostium , from denmark to holland , and eight or nine last of tar , which is counterband , beside the six barrels of tar carried from holland to france , and entered , and sold there , and the stock-fish , and albeit tar be not enumerat as counterband in the swedish treaty , yet it is comprehended in the general clause of alia instrumenta bellica , for there is no more eminent instrument of war , not only for shipping , but for all engines of war , and suppose that ( by the swedish treaty ) tar were not counterband , yet that treaty can be only extended to the subjects of sweden ; trading to and from sweden , but not to warrand them to carry these things ( which de jure communi , are counterband ) from any other countrey then their own , to the kings enemies , so to partake with the kings enemies to his detriment . and as to the second passe send to holland , it is no ways conform to the treaty , but is most grosse and inconsistent , bearing not only the ship to belong to the swedes , but also all the goods input , or to be input in her to belong to them , and to be free goods , without expressing any particular : as to the return of enemies goods , or counterband goods , that it is a ground of seasure , being the immediat return , and the captains commission granted by the admiral , bearing so much expresly , and the instructions given by the council in a former war , anno . which were sufficient warrand for the captain to sease , and are founded upon evident reason , viz. that the kings allies are neuters , having assist his enemies with counterband goods , it is a delinquence deserving that the delinquent should be seased as an enemie at any time , and yet the kings commission hath mitigat it , only to be in the return of that same voyage , wherein the counterband goods were carried , for if an allies ship having counterband aboard , were taken in her voyage to an enemies port , she might more reasonably pretend that intention was alterable , and no crime until actually she had disloaded in the enemies port , but could have no pretence if she were waited till immediatly after she came out of the port , although then the enemies goods , or counterband goods were not aboard . the lords upon a part of this debate , having formerly written to my lord secretary , to know the kings mind whether the swedes , by their treaty , might carry from other countreys , that which was de jure communi counterband , albeit not counterband by their treaty , his majesties answer was negative , whereupon the lords proceeded to consider whether tar was counterband , de jure communi , they found it was , but did not find the stock-fish counterband , except in the case of a siege , to which point secretary morish letter was produced , in relation to the custom of england , and having also considered the proclmation of war , in which there is no mention of returns , but only a warrand to sease ships belonging to enemies , having in them enemies goods , or counterband goods , and having also considered the admirals commission , which extends only to the return of counterband goods , and not to the return of enemies goods ; and it being offered to be proven positive , that by the custom of england , no seasure is sustained upon returns , but only when enemies goods or counterband are actually taken aboard ; they were unclear whether seasure should be sustained in any other case upon returns , and therefore ordered an other letter to be written to the secretary , to know the kings mind , and the custom of england in that point before answer , and ordained the opinion of some merchants to be taken , whether parkmans ship fraught in norway to holland , and disloaden there , and thence going to france with ballast , not upon the account of the former fraught , but the owners , if it should be accounted one voyage , or two , so that the return from france , might be accounted the immediat return of the voyage to holland . in this processe the lords , by a former interlocutor , had found the taking on of the men , as they were qualified and proven , to be no ground of seasure . dowgal mcferson contra alexander wedderburn , eodem die . dowgal mcferson having charged alexander wedderburn of kingennie , provost of dundee , for payment of a sum of money , he suspends on this reason , that the sum was payable to dowgal and his wise in liferent , and contained a clause of premonition , and requisition , and the sum to be consigned in the hands of the dean of gild of dundee , which was consigned accordingly . the charger answered , that he offered to prove by the suspenders oath , that he took up the money from the dean of gild , and therefore he must re-produce the same , with the annualrents thereof since the consignation . it was answered , that it being the chargers fault , that the suspender was put to consigne , because he had not a discharge granted by his wife judicially , that therefore he could not be lyable for annualrent , in that he uplifted the soum , unlesse it were proven he had made profit thereof , but he offered to depone , that he had all the money still lying by him , and got no profit of the same , and that he ought to have uplifted , in regard he was lyable for the hazard of the consignation . the lords found the suspender lyable to produce the money consigned , with the annualrent since , seing he uplifted the same without difference , whether he made profit or not . the baillie of the regality of killimure contra burgh of killimure , eodem die . the heretable baillie of the regality of killimure having conveened , and amerciat a person in the burgh , they suspend on this reason , that the burgh being a burgh of regality , having its own magistrats inhabitants , are only lyable to the jurisdiction . it was answered , that the burghs jurisdiction being granted by the lord of regality , is only cumulative , and not exclusive of the lord of regality , or his baillie , in the same way , as the jurisdiction of all vassals is not exclusive of their superiors jurisdiction , for the burgh are vassals holding of him , and therefore est locus preventioni , and the first citation , without negligence , is preferable . which the lords found relevant . earl of argyle contra george campbel , ianuary . . the earl of argyle pursues george campbel , to remove from a tenement of land in inerera , who alleadged no processe , because the pursuer produces no infeftment of this burgh , or tenement therein . the pursuer answered , that he produced his infeftment of the barony of lochow , and offered him to prove , that this is part and pertinent of the barony . the defender answered , that this burgh cannot be carried as part and pertinent , but requires a special infeftment . first , because by the late marquess of argyls infeftment , in anno . produced , this burgh is exprest , and not in the pursuers infeftment . dly , because in the pursuers infeftment , there is exprest particulars of far lesse moment . dly , because a burgh of barony is of that nature , that cannot be convoyed without special infeftment . the pursuer opponed his infeftment of the barony of lochow , which is nomen universitatis , and comprehends all parts of the barony , although there were none exprest , and therefore the expressing of this particular in a former charter , or lesse particulars in this charter derogat nothing , it being in the pursuers option to expresse none , or any he pleases ; and albeit in an infeftment of an ordinary holding , without erection in a barony , milns , fortalices , salmond fishings , and burghs of barony cannot be conveyed under the name of part and pertinent , yet they are all carried in baronia , without being exprest . the lords repelled the defence in respect of the reply , and found that this being a barony , might carry a burgh of barony , as part and pertinent , though not exprest , albeit it was exprest in a former infeftment , and lesser rights expressed in this infeftment . the defender further alleadged no processe , because the pursuers infeftment is qualified , and restricted to so much of the estate , as was worth , and payed yearly fifteen thousand pounds , and the superplus belongs to the creditors , conform to the kings gift , likeas the king granted a commission to clear the rental , and set out the lands to the pursuer , and to the creditors , who accordingly did establish a rental , wherein there is no mention of the lands of innerera , and therefore they cannot belong to the pursuer . it was answered for the pursuer , that he oppones his infeftment , which is of the whole estate , and whatever reservation be in favours of the creditors , it is jus tertij to the defender . it was answered , that the defenders advocats concurred for a number of the creditors , whom they named , and alleadged that they would not suffer the defender to be removed , seing they only can have interest to these lands in question . the pursuer answered , that the creditors concourse or interest was not relevant , because they have no real right or infeftment , but only a personal provision , that this pursuer shall dispone , and resigne the superplus of the estate in their favours , or otherwise pay them eighteen years purchase therefore at his option , whensoever they shall insist via actionis , the earl shall declare his option , but they having no infeftment cannot hinder the donatar to remove , parties having no right , which is the creditors advantage , and cannot be stopped by a few of them , likeas the whole barony of lochow is set out by the said commission , to the pursuer himself , conform to their sentence produced . the lords did also repel this defence , and found that the provision in favours of the creditors , could not stop this removing . earl of kinghorn contra the laird of vdney , eodem die . the earl of kinghorn pursues the laird of vdney , as representing his father , to denude himself of a wodset right , granted by the late earl to the defenders father , conform to the defuncts missive letter , acknowledging the receipt of the sums of the wodset , and obliging himself all written with his own hand , and craved that the defender might enter , and infeft● himself in the wodset , and resigne in favours of the pursuer , that the lands might be purged thereof , and insisted against the defender ▪ first , as lawfully charged to enter heir , who offered to renunce to be heir . the pursuer answered , he would not suffer him to renunce , because he offered him● to prove that he was lucrative successor by the disposition of the lands of vdney , whereunto their is an expresse reservation in favours of his father , to dispone , wodset , and grant tacks , and therefore any deed done by his father , behoved to affect him , at least the fee of the estate ; so that albeit this letter be posterior to the disposition of the estate , it must burden the same , and the defender quoad valorem . dly , the letter produced , acknowledges a wodset , and payment made , and it is offered to be proven , that the letter was anterior to the disposition of vdney , so that by the receipt of the wodset sums , the defunct was ( by the nature , and tenor of the rights of wodset ) obliged to resign in favour of the pursuer , and therefore the defender succeeding to him by this disposition , after that obligement , to denude himself ▪ upon payment is obliged as successor , titulo lucrativo post contractum debitum , to denude himself , and that the wodset was prior to the disposition of vdney , was offered to be proven . the defender answered , that the provisions in his infeftment could never affect him , nor the estate , because there was nothing in the provision , that the estate should be lyable to the debts contracted by the defunct thereafter , but only that he might dispone , or wodset , or redeem for an angel , and it cannot be subsumed , that the letter produced doth import any of these , but at most a personal obligement . dly , albeit it were notour , that there had been such a wodset before the defenders disposition of his proper estate , yet it behoved to be also instructed , that it was payed before that disposition , but his fathers missive after his disposition , could never instruct that it was payed , or payed before , and yet the defender offered to renunce all right he had to the wodset lands , or to suffer an certification , and improbation to passe against the same , seing they are not extant or produced , or to consent that the lords would declare upon the letter , that the wodset thereby was redeemed , and extinct , which last the pursuer would have accepted , providing the defender would give a bond of warrandice for his fathers deed , and his own , which the defender refused . the lords proceeded to determine the point in jure ; and as to that point anent the provision , in the defenders infeftment , some were of opinion , that any debt contracted by the father , would affect the estate , others thought not , there being no provision to contract debt , but to wodset or dispone , which was not done , and all agreed , that the case being new , and now very frequent , required a more accurat debate ; but the lords found that the defenders father , having by his letter acknowledged the wodset , and the payment thereof , to which wodset the defender had no right , that any grant of redemption by the father ( after his disposition to his son ) was probative against the son , and that the letter being proven holograph , did instruct the wodset to be payed , and therefore sound it relevant to the pursuer , to prove that the wodset was before the defenders disposition , and that it did import a conditional obligement , that the father should resign upon payment , and that the sons disposition being after the wodset , he was lucrative successor , after that obligation contracted by the wodset . captain strachan contra george morison , ianuary . . captain strachan having obtained decreet before the admiral , against george morison for wrongous intromission of a loadning of wine , belonging to the pursuer , in anno . which was brought home by him , in the ship called stulla , whereof he had an eight part , and the defenders the rest ; and the pursuer being skipper , did upon his own credit buy the wine , and having brought it home , the ship was broken at newburgh , and loadning was medled with by the defenders , whereupon they are decerned to pay conjunctly and severally . george morison raises reduction on two grounds . first , that the decreet was unjust , in so far as the defenders were decerned in solidum , each for the whole . dly , that there was no probation of any of their intromissions , but upon the testimony of one witnesse , and captain strachans own oath taken in supplement . it was answered to the first reason , that the whole intrometters were justly decerned in solidum . first , because this was in it self a spuilzie ; and albeit the defender did not insist within three years , yet he ought not to be excluded , because he was in the kings service all the time of the trouble , and fled the countr●y at the time of this intromission . dly , because the prescription of the priviledge of spuilzie is only in relation to violent profits , and the oath in litem , and these are only lost , if pursute be not within three years , but the parties being all lyable in solidum is not lost , for the intromission remaines still a wrongous intromission , and is not in the same case as a vindication , and restitution of goods in the defenders hands , without violence or vice , and in many cases correi , are lyable in solidum , as tutors , or where the intromission is joynt , or promiscuous , for it were against reason , if there were many vitious intrometters , that the particular intromission of each of them behoved to be proven , which oft times is impossible , as in the same case , and likewise socij are lyable in solidum , and here was a co-partnery betwixt these parties . it was answered for morison , that there was three years elapsed since the kings restauration before any pursute , and though that had not been , there is nothing that can stop that short prescription , and therefore infancy or minority hinders not the course thereof , and in this case the decreet in question restricts to wrongous intromission . as to the second , all the priviledges of spuilzie are lost by the prescription ; and it was never found at any time , that in wrongous intromission , the parties were all lyable in solidum , especially where the thing intrometted with was divisible , as wines ; and as to the alleadged co-partinery there was nothing lybelled thereon . the lords did not consider the poynt of co-partinery , but found that in wrongous intromission , each intromettor was not lyable in solidum , but a joynt intromission proven against many , did in●er against each of them , an equal share , unlesse the pursuer proved that they intrometted with a greater share , and found not a necessity to prove against each of them the particular quantity of their intromission . walter stuart contra robert acheson . eodem die . walter stuart as being infeft in the baronie of north-barwick , and being charged for the whole taxation thereof , charges robert acheson for his proportion , according to the stent roll , who suspends on this reason ▪ that his interest is only teinds , which is only applyed to the ki●k , whereof he produces the bishops testificat , and therefore by the exception of the act of convention he is free . the charger answered non relevat , because the suspender ought to have conveened at the dyet appointed , by the act of convention , for making of the stent roll , and there have instructed that his teinds were exhausted , wherein having failzied , and being taxed , no other could pay for him , neither could the king lose that proportion . it was answered , that he had no interest to conveen , the minist●r having the only right to his teinds . the lords repelled the reason , and adhered to the stent roll , but prejudice to the suspender , to seek his relief of any partie he pleaseth , as accords . mr. andrew brown contra david henderson , and thomas george , ianuary . . master andrew brown granted a bond of . merks , blank in the creditors name to george short , wherein the name of david henderson is now filled up . thereon george having arrested all sums due to alexander short in the hands of mr. andrew brown , he raises a double poynding , wherein the competition arises betwixt the arrester , and the the person whose name is filled up in the blank bond. it was alleadged for the arrester , that he ought to be preferred , because he arrested shorts money , and at the time of the arrestment , this bond having been delivered to short blank in the creditors name , short was creditor ay and while , not only another name were filled up , but also an instrument of intimation were taken thereupon , for shorts filling up of the name of henderson , is no more then an assignation , which requires intimation , and is excluded by an arrestment before the intimation , albeit after the assignation . it was answered for henderson , that there needed no intimation to the filling up of a creditors name in a blank bond , which was never required by law nor custom , and his bond being now in his own name , nothing could prove that it was blank ab initio , or that it did belong to short , but hendersons own oath , in which case it would be sufficient for him to depone qualificat● , that the bond indeed was blank ab initio ; and delivered by the debtor to short , and by short to him , and his name filled up therein before the arrestment , or at least that before the arrestment , he had showen the bond filled up to the debtor , which is equivalent , as if he had given back the first bond , and gotten a new bond from the debtor , after which , no arrestment ( upon account of the prior creditor ) could be prejudicial to him , ita est , he hath done more , for he hath proven that before the arrestment , the bond was produced● and shown to birny the debtor . it was answered , that in a former case , in a competition of the creditors of alexander vetch , the lords found that the arrestment laid on , before intimation of the filling up of a blank bond , preferred the arrester , and that otherwise collusion could not be evited with these blank bonds , to exclude and to save creditors arresting . the lords preferred henderson , whose name was filled up , and presented to the debtor before the arrestment ; for in vetches case there was nothing to instruct that the bond was truely filled up , and presented to the debtor before the arrestment ; and they found the filling up , and presenting thereof sufficiently proven by the witnesses , taken ex officio . pollock contra pollock and rutherfoord , eodem die . umquhil iohn pollock in the cannongate , having given a bond to iames pollock his son of . merks , he pursues robert pollock the heir of line , and pollock , heir of the second marriage , for payment . the heir of line compearing , renunced : whereupon the pursuer insisted against the heir of provision , who alleadged no process , till the heretage be falling to the heir of line were first discust , and condescended upon the heirship moveable . the pursuer answered , there could be no heirship in this case , because the heir of line had renunced all he might succeed to by his father , heretable , or moveable , in favours of his father , his heirs and executors bearing expresly , that his wife , and his bairns of the second marriage should have the whole right : ita est , rutherfoord ; the wife had confirmed the whole moveables promis●ue , without exception of heirship , and therefore the heir of line himself ( if he were entered ) could claim none . it was answered , that the renunciation of the heir apparent of line , being in favours of his father , after his fathers death , it returned back to him from his father as heir of line again , and could go to no other person , neither thereby could the heretable moveables belong to the executor . the lords found the renunciation sufficient to exclude the heir of line from the heirship moveable , and that they did thereby belong to the fathers exe●utor , therefore found no further necessity to discusse the heir of line , and decerned against the heir of provision . grissel stuart contra the laird of rosyth her brother , ianuary . . umquhil rosyth gave a bond of provision to his daughter grissel stuart of . pounds , payable at her age of . years , with an obligement to entertain her in the mean time , but no obligement of annualrent ; she pursues her brother ( as representing her father ) for implement , and having lived with her uncle a part of her fathers time , and alleadging that she was hardly used by her step-mother , she craves aliment for that time of her fathers lifetime , and for six , or seven years since his death , or craved annualrent for her sum. the defender alleadged absolvitor , as to the annualrent before her fathers death , because she ought to have continued in her fathers family , and there neither is , nor can be alleadged any just cause wherefore she should have deserted the same . dly . absolvitor from annualrent , or entertainment since her age of . years , because the bond bears entertainment till that age , and no entertainment , or annualrent thereafter . dly , she does not , nor cannot alleadge that she payed out any thing for entertainment , but was entertained gratis by her uncle . the lords found this no ground to exclude her from aliment , and found aliment due after the term of her bond , as well as before , but not annualrent , and modified six hundreth merkes per annum , without allowing any thing for the year her father lived , but modified the more largely , it being unfit to dispute the necessities of her removal . ianet schaw contra margaret calderwood , eodem die . janet schaw pursues a reduction of a liferent infeftment , granted to margaret calderwood by the pursuers father , as being in lecto . the defender alleadged no processe , because the pursuer was not heir the time of the disposition , but another heir appearand , who never entered . the lords repelled the defence . the defender alleadged that this being an liferent infeftment to her by her husband , and but of a small value , it was valide , and the husband might discharge that natural debt of providing his wife on death-bed , she having no contract of provision before , the pursuer answered , that the defender might take the benefit of her terce , which is her legal provision , beyond which , a deed on death-bed ( in prejudice of the heir ) is null , and this liferent is of the husbands whole estate , and yet the pursuer is willing it should stand , it being restricted to a third of the rents of the lands . the lords sustained the infeftment only for a third . mary dowglasse lady of wamphray , contra the laird of wamphray , ianuary . . umquhil wamphray having infeft his lady in two thousand merks of liferent yearly , by her contract of marriage , out of certain lands therein mentioned ; and being obliged to pay her , as well infeft , as not infeft , and to warrand the lands to be worth two thousand merks of free rent . she pursues this wamphray for payment , who alleadged deductions of publick burdens . it was answered , that an annualrent was not lyable to publick burdens ; for the act of parliament , . made thereanent was rescinded , and not revived , and this provision is payable , not only really , but personally , though there had been no infeftment , and that the obligement to make the land worth two thousand merks of free rent , could be to no other end but to make the annualrent free , especially the contract being in anno . after maintainance was imposed , which was the heaviest burden . it was answered , that an obligement for payment of an annualrent , relating to no particular land , could not be burdened with the land , or if it did relate to a stock of money , the ordinar annualrent of the money behoved to be free , but this annualrent relates to no stock , and its first constitution is out of the lands mentioned in the contract ; so that albeit there had been no infeftment , it must bear proportionably with the land , and albeit the act of parliament be rescinded , yet the common ground of law and equity , and the custom thereupon remains , neither doth the provision ( to make the land worth so much of free rent ) infer , that therefore the annualrent must be free , which would have been so exprest at the constitution of the annualrent , if it had been so meaned . the lords found this annualrent lyable for the assesment , notwithstanding the act of parliament was rescinded , and all that was alleadged against the same , was repelled . iohn iustice contra mary stirling his mother , ianuary . . there was a bond granted by stirling of coldoch , whereby he granted him to have received from umquhil iohn iustice , and mary stirling his spouse , the sum of . merks , and obliged him to pay to the said husband and his spouse , and longest liver of them two , and the heirs gotten between them , or their assigneys , which failzying to the heirs of the last liver : the said mary having survived , did uplift the sum , and now iohn iustice ( as heir of the marriage to his father ) pursues his mother to make forthcoming the sum , and imploy the same to her in liferent , and to him in fee. it was alleadged for the defender absolvitor , because by the conception of the bond she is feear , and so may dispose of the money at her pleasure . the pursuer answered , that the conception of the bond did no wayes make the wife feear , but the husband , according to the ordinar interpretation of law in conjunct-fees betwixt husband and wife ; and as to the clause , in relation to the longest liver , their heirs and assigneys , the fee could not be constitute thereby , otherwise the fee behoved to be pendent and uncertain , and in effect be in no person so long as they live together , but after the death of either , the fee should then begin to be constitute in the surviver , which is inconsistent , and therefore the fee behoved to be constitute by the first words , obliging to pay the sum to the husband and wife , the longest liver of them two , whereby the husband was feear and might have disposed thereupon during his life , but without prejudice of his wifes liferent ; there is no doubt but this sum might have been arrested for his debt , and it could not be then pretended that ex even●u , the wife by surviving might become the feear . it was answered for the wife , that albeit conjunct-fees between man and wife do ordinarly constitute the husband feear , yet there are many cases in which such conjunct fees the wife may be feear , and here the termination being upon the surviver , makes her the surviver sole feear , although both were conjunct feears before , and neither of them properly a liferenter , till by the event it did appear who should survive , neither can any such subtilty of the dependence , or uncertainty of the fee , render the intention of the parties ineffectual . the lords found , that by the foresaid clause , the husband was feear , and the heirs of the marriage , were heirs of provision to him , and that failzying the heirs of the marriage , the wifes heirs were substitute as heirs of tailzie , and therefore ordained the sum to be so imployed , and secured , that if the pursuer being the only heir of the marriage should die before he dispose thereupon , it should return to the heirs and assigneys of the mother . the lady wolmet and dankeith her spouse , contra major biggar , and iames todrig , ianuary . . the lady wolmet and dankeith her spouse , pursues major biggar , and the tennents of wolmet for mails and duties . compearance is made for iames todrig , who being assigned to an annualrent , due out of the lands of wolmet , to the old lady wolmet by an infeftment , long prior to this ladies infeftment ; upon which right there was also raised an inhibition , whereupon todrig ( as assigney ) pursues reduction of the pursuers right , and several others , and obtained decreet thereupon , and now alleadges that the lady can have no mails and duties , because her right stands reduced at the instance of the said iames todrig , who hath also appryzed upon his anterior annualrent . the pursuer answered , that the alleadgeance ought to be repelled , because the right of his annualrent , appryzing , and reduction has been several years in the person of major biggar , who has been all that time in possession of the lands , and therefore by his intromission , todrigs appryzing is satisfied within the legal . it was answered for major biggar , albeit the right was , and had been his , and he in possession , yet the appryzing cannot be satisfied thereby , unlesse he had possest by vertue of the appryzing , which cannot be alleadged , because he offers him to prove that he entered , and continued in possession many years before he got this right , by vertue of other infeftments . the pursuer answered , that by the reduction at todrigs instance , all major biggars rights stands reduced , so that albeit by them he entered in possession , yet he cannot ascribe his possession to them after they were reduced . it was answered , that albeit his rights were reduced , there was no removing , or action of mails and duties intented against him upon the prevailing right , and therefore his possession behoved to be ascribed to his prior possession , though reduced . dly , he having now divers rights in his person , may ascribe his possession to any of them he pleases against this pursuer , from whom he derived not his possession , nor the cause thereof . dly , it was answered , that the pursuer might acquire this right , ad hunc effectum to purge it , and the inhibition , and reduction thereon , in so far as it might be prejudicial to his prior rights , and not to bruik by it . the pursuer answered , that albeit biggar might have acquired this right , to evacuat and purge the same , if that had been declared in his acquisition thereof , or otherwise legally , yet not having done it , he must be understood to bruik only by that right that was standing . dly , if he should declare that he did acquire it to purge it , then , as his own right , revives which was reduced , so must this pursuers right , which was also reduced in that same reduction revive , especially in casu tam favorabili , that the pursuer may not be excluded from her liferent , which is her aliment , and seing the decreet of reduction was obtained by meer collusion , and is offered to be disclaimed upon oath , by the advocats marked , compearing therein . the lords found that major biggar behoved to ascribe his possession to todrigs right , and to none of the reduced rights , all being joyntly in his person , and not having declared quo titulo possidebat , and that he cannot now declare that he makes no use of todrigs right , in so far as may be prejudicial to his own prior rights , and makes use of it as it is prejudicial to the pursuers rights , which were reduced together , seing the pursuers rights would have excluded the majors other rights , to which he would now ascribe his pessession . magistrats of contra the earl of findlator , eodem die . there was a bond granted by one iackson principal , and a cautioner which is also alleadged to have been subscribed by umquhil inch-martin as an other cautioner ; which bond being registrat at the creditors instance , he did thereupon incarcerat the principal debtor , whom the magistrats having suffered unwarrantably to escape ; the creditor obtained decreet against the magistrats for payment of the debt . the magistrats payes the debt , but takes assignation from the creditor , and now as assigney pursues the earl of findlator , as representing inchmartin one of the cautioners for payment , who alleadged absolvitor . first , because the bond is null as to inchmartin , wanting both date and witnesses ; for it bears to have been subscribed by the principal , and the other cautioner , at such a place , such a day , before these witnesses , who are subjoyned , and designed , and after the names of these witnesses sayes , and subscribed by inchmartin , at after which there nothing follows in the bond , but the subscriptions of parties , none of which subscribe as witness to inchmartin , yet his subscription is amongst the subscriptions of the other parties , but as to him it hath neither place , day , nor witnesses . the pursuer offered to condescend , that the day and place of the subscription of the witnesses , were the same to inchmartin , as to the principal and other cautioner , which they alleadged to be sufficient to make up this nullity , as is ordinar where the writer and witnesses are not designed , for thereupon the defender may improve the bond by the witnesses insert . the defender answered , that albeit the lords supply the want of designation of writer or witnesses , by condescending on their designation , that means of improbation may be afforded , which is not the question here ; yet the lords did never suffer parties to fill up witnesses , where no witnesses were insert , nor no date , either as to year or moneth . the lords would not sustain the bond upon this condescendence , but ex officio ordained the witnesses ( if they were alive ) to be examined , whether they were witnesses to inchmartins subscription , that same day , and place with the rest , reserving to themselves what their testimonies should ●perat . the defender further alleadged absolvitor , because he offers him to prove , that the●e was a decreet against the magistrats now pursuing , at the instance of the creditor , for payment of the debt , because they suffered the principal creditor incarcerat to escape , so that the debt being payed by the magistrats , coming in the place of the principal debtor ex delicto , it is in the same case , as if the principal debtor himself had payed ; which necessarly liberats his cautioners . it was answered , that the magistrats are only lyable to the user of the diligence , pro damno & interesse , and to no other , for the creditor ( user of the diligence ) might have consented to the escape of the rebel , or might discharged the subsidiarie obligation , or action competent , against the magistrats for suffering him to escape , whether the cautioners would or not , and therefore the magistrats might as well take an assignation from the creditor for payment of the debt , which implies the creditor his passing from them as bound ex delicto , in which case he would only have given them a discharge , but here the magistrats contracts with the creditor , and acquires the assignation , ut quilibet upon an equivalent cause . it was answered for the defender , that this assignation is evidently simulat in place of a discharge , there having preceeded a decreet against the magistrats , ita est , that assignations granted to persons obliged for a debt , doth operat alwise as to the matter only as a discharge , though more summarly , as when cautioners pay , and are assigned , they must allow their own part , but much more these who are lyable ex delicto , having payed upon a decreet , cannot seek relief , whether they have assingation or discharge , especially against cautioners , and if this were sustained , all rebels who had cautioners might be suffered to escape , where there is any cautioners , for messengers might be deforced , taking assignation to the debt , and proceeding against the cautioners , and albeit the user of the diligence might consent to the liberation , yet he could not pass from the obligation , ex delicto , which accresceth to all parties having interest ; and if the cautioners had been dist●est by the creditor , they might pursue the magistrats , suffering the principal to escape , ex delicto & damno , for if he had not been suffered to escape , they would have been payed . the lords found this defence relevant , that the magistrats pursuers , having suffered the rebel to escape , and decreet against them , and having satisfied the debt to the creditor , that they could not have recourse against the cautioners , either by vertue of a discharge ; or assignation . here it was not debated , whether or not they might have recourse against the principal debtor escaping , who was principaliter in delicto , and the magistrats but accessory . mr. william mushate minister of hassenden , contra the duke and dutches of buccleugh , ianuary . . the minister of hassenden having obtained designation of a gleib , out of the duke of buccleughs lands , pursues removing . the duke suspends on this reason that the designation is null , not bearing citation , nor ●numation to the parochiners , neither is the duke cited to the designation upon . dayes , as being out of the countrey . it was answered , that by the constant custom in such cases , there is only intimation given at the kirk door , or out of the pulpit of the day of designation , which the defender offers to prove , uses to be done in the like case . which the lords found relevant , albeit the intimation was not mentioned in the designation . robert dobby contra the lady stanyhil his mother , eodem die . robert dobby pursues the lady stanyhil his mother , for an aliment , upon this ground , that she being provided to an plentiful liferent , being an annualrent of . merks yearly , there remains nothing to aliment him the heir , of free rent , being all exhausted by the liferent , and annualrent of the debt . the defender alleadged absolvitor , because there is no ground in law nor custom for an aliment to the heir , except the rents were exhausted by real burdens by infeftment ; but here at the defuncts death , there was only this liferent , which was not the half of the rent , and there was no infeftment more . dly , aliments is only competent to minors , the pursuer is major , and may do for himself . the pursuer answered , that it was alike whether the debts were personal , or real , for if apprysings had been used , they would all have been real , but the pursuer did prevent the same , by selling a part of the land at a great rate , which was all applyed to the creditors , and yet the liferent , and annualrent of the debt is ▪ more then the rent ; neither is there any distinction in the law as to majors and minors , who were not bred with a calling ; and therefore carberry ( who was a man of age ) got an aliment , and anthonia brown got an aliment from her mother , who had an annualrent in liferent , and the debts were all personal at her fathers death , albeit some of them were appryzed for , before she got her aliment . the defender answered , that there was a sufficient superplus , because she offered to take the lands , or find sufficient tennents therefore , for . merks yearly , which was a . pounds above her liferent , and would exceed the annualrents of all the debts . the lords found this last defence relevant , but did not proceed to determin● , whether an aliment would be due , where the burden was but by personal debt . alexander binny contra margaret binny , eodem die . margaret binny granted a bond , obliging her self to enter heir of line to her father , and to resign the lands in favours of her self , and the heirs to be procreat of her own body ; which failzying , to the heirs of alexander binny her father , and obliged her self to do nothing contrair to that succession ; and having married william brotherstanes , by her contract of marriage , nomine dotis , she dispones the lands to him . this margaret was the only child of alexander binnies first marriage , and there was an inhibition used upon the bond , before her contract of marriage : alexander binny being son of the second marriage , and heir of line to his father , pursues the said margaret to fulfil the bond , and to enter , and resign the land conform thereto , and thereupon did obtain decreet , which being now suspended . it was alleadged , that this being but an obligement to constitute a tailzy , could have no effect to hinder her to dispone to her husband in name of tocher , which is the most favourable debt , or to contract any other debt , which the pursuer ( who behoved to be her heir ) could never quarrel . dly , it was alleadged for the husband , that he could not be decerned as husband , to consent to this resignation , contrair to his own contract . it was answered , that this was not only a bond of tailzy , but an obligement to do nothing that might change the succession , and so she could not voluntarly dispone , but the husbands provision might be competent enough , seing both she has the liferent , and the children of the marriage will succeed in the fee● and albeit the pursuer must be heir of tailzy , yet obligements in favours of heirs of tailzy , are alwayes effectual against heirs of line , in relation to whom the heir of tailzy is but as an stranger . the lords repelled the reason , and found the letters orderly proceeded , till the wife entered , and resigned with consent of her husband , conform to the bond , seing there was inhibition used before the contract ; but they did not decide , whether this clause would have excluded the debts , to be contracted by the said margaret , or her heirs , upon a just ground without collusion , but found that she could not make a voluntare disposition , to exclude that succession , in respect of the obligement to do nothing in the contrair . e●phan brown contra thomas happiland , ianuary . . marjory brown being first married to happiland , and thereafter to robert brown ; she acquired right to a tenement of land to her self in liferent , and euphan happiland her daughter of the first marriage in fee ; which infeftment is given by the said thomas brown her husband , being then bailly for the time . agnes happiland dispones this tenement to thomas brown , heir of the marriage , betwixt the said umquhil thomas brown , and marjory bruce , and for the price thereof , gets a bond relative thereto . thomas brown being charged upon this bond , raises reduction upon minority and lesion . to the which it was answered , there was no lesion , because the disposition of the land was an equivalent onerous cause . it was answered , that the disposition was no onerous cause , because the lands disponed , belonged not to the disponer , but to the suspender himself , in so far as they were conquest by marjory bruce , while she was spouse to his father , so that the money ( wherewith she acquired the same ) belonging to the husband jure mariti , the land must also be his , unlesse it were condescended and instructed , that she had heretable sums , not falling within the jus mariti , wherewith this right was acquired . it was duplyed , that this was but a ●aked conjecture and presumption , which is sufficiently taken off , by the husbands giving seising as bailly . it was answered , that this was actus officij , which he could not refuse , but he knew that the infeftment in favours of his wife , would accresce to himself . the lords repelled the reasons of suspension and reply , in respect of the answer and duply , and found that the fee of the land belonged to the wife and her daughter , and that there was no lesion in giving bond therefore . laird aitoun contra iames fairy , eodem die . the laird of aitoun having bought a horse from iames fairy ; pursues for repetition of the price , and for entertainment of the horse since , upon this ground , that he offered to prove by the witnesses , at the buying of the horse , that iames fairy promised to uphold him but six years old , and that he was truly twelve years old : the question was , whether this was only probable by oath , or witnesses . but the lords perceiving an anterior question , how soon the horse was offered back by the pursuer , they ordained him to condescend , that very shortly thereafter he offered the horse back , otherwise they would not sustain the processe . john papla contra the magistrats of edinburgh , ianuary . . john papla pursues the present magistrats of edinburgh , for payment of a debt due to him , by a person incarcerat in their tolbooth , who escaped . the defenders alleadged no processe , till the magistrats who then were , especially bailly boyd ( by whose warrand the rebel came out ) be called . dly , the present magistrats cannot be lyable personally , having done no fault ; neither can they be lyable , as representing the burgh , at least but subsidiarie after the magistrats who then were in culpa , were discussed now after six or seven years time . the pursuer answered , that the prison being the prison of the burgh , the burgh was lyable principaliter , and if only the magistrat doing the fault were lyable , the creditor might oftimes loose his debt , these being oftimes of no fortune , or sit to govern , and the town who choiseth them , is answerable for them ; neither is the pursuer obliged to know who were baillies at that time , or who did the fault , and so is not bound to cite them . the lords repelled the defences , and found the present magistrats ( as representing the town ) lyable , but prejudice to them , to cite them who did the fault . robert ker contra henry ker , february . . robert ker of graden having granted bond to robert ker his son , for . merks of borrowed money , and . merks of portion ; for which sum he did infeft him in an annualrent of . pound yearly , suspending the payment of the one half of the annualrent till his death ; whereupon robert pursues a poinding of the ground . it was alleadged for henry ker ( the eldest son , who stands now infeft in the lands ) absolvitor , because he stands infeft in the lands before this infeftment of annualrent being but base , took effect by possession . the pursuer answered , first , that the defenders infeftment , being posterior , and granted to the appearand heir , without a cause onerous , it is perceptio haereditatis , and if the father were dead , it would make the defender lyable as heir , and therefore now he cannot make use thereof , in prejudice of the pursuer . dly . the pursuer offered to prove , that his annualrent was cled with possession before the defenders infeftment , in so far as he received the half of the annual●ent , which is sufficient to validat the infeftment for the whole , seing there are not two annualrents , but one for the whole sum , and seing the 〈◊〉 could do no more , the one half of the annualrent being suspended till his fathers death . the lords found this second reply relevant , and found the possession of the half was sufficient to validat the possession for the whole , but superceded to give answer to the former reply , till the conclusion of the cause , not being clear , that the defense upon the defenders inseftment could be taken away summarly , though he was appearand heir without reduction , upon the act of parliament , . mr. george iohnstoun contra sir charles erskin , february . . the lands of knock●●● , being part of the lands of houdon , did belong to umquhil richard irwing , umquhile mr. iohn alexander minister , having charged robert irwing to enter heir in special to the said richard his grand-sir in these lands , he did appryze the same from robert as specially charged to enter heir , but robert died before he was infeft , or charged ; the superior , sir charles erskine , hath appryzed from mr. iohn alexander all right competent to him in these lands , and thereby having right to mr. iohn alexanders appryzing , he is infeft thereupon . after robert irwings decease , his sisters served themselves heir to richard their grand-sir , and are infeft , do dispone to mr. george iohnstoun , who is also inseft . mr. george pursues for mails and duties , in the name of irwings his authors ; compearance is made for sir charles erskine , who alleadged absolvitor . first , because he hath been seven years in possession of the lands in question , by vertue of mr. iohn alexanders appryzing , and his own , and so is tulus exceptione in judicio possess●rio , and cannot be quarrelled till his right be reduced . dly , he is potior jure , and his right must exclude the pursuers , because he having right to mr. iohn alexanders appryzing , which was deduced against robert irwing , as specially charged to enter heir ; so richard , as to him , is in as good case , as robert had been actually entered , and infeft by the act of parliament , declaring that when parties are charged to enter heir , and lyes out , sicklike processe , and execution shall be against them , as they were actually entered ; likeas the tenor of the special charge introduced by custom , to perfect the foresaid act of parliament , bears expresly , that the person charged shall enter specially , and obtain himself infeft , with certification , that the user of the charge shall have the like execution against him , as if he were entered , and infeft ; and therefore mr. iohn alexanders appryzing against robert i●wing , so charged , was as effectual to him , as if robert had been actually infeft , in which case there is no question , but the appryzer might obtain himself infeft upon the appryzing , after the death of him against whom he appryzed , and that summarly , without new processe , and there is no difference whether the superior were charged during the life of the debtor , or not . the pursuer answered to the first , that no party can claim the benefit of a possessory judgement , unlesse he have a real right by infeftment , at least by tack ; but a naked appryzing , thoug it may carry mails and duties , as a naked assigation , and is valide against the debtor or his heir , ●et in it self it is an incompleat right , and not become real . it was answered , that the appryzing alone was sufficient , as was lately found in the case of mr. rodger hog , against the tennent of wauchtoun . the lords repelled the first defense , and found there was no grond for a possessory judgement ; here there was neither infeftment , nor charge upon the appryzing . the pursuer answered to the second defense , that it was not relevant to exclude him , because richard irving having dyed last , vest and seised in the lands , and robert irving never having been in●eft , the pursuers , roberts sisters , who were heirs appearand , buth to richard their grand-sir , and robert their brother , could not possibly obtain themselves infeft as heirs to their brother , becuse the inquest could not find that robert dyed last , vest and seised as of fee , but richard and any appryzing against robert ( who was never infeft ) evanished , seing no infeftment was obtained upon the appryzing , nor no charge used against the supperior , during roberts life , so that the appryzer ought to have charged de novo these pursuers to enter heir to richard , and ought to have appryzed from them , as lawfully chaged , and to have obtained infeftment upon the appryzing in their life , and as the sisters would exclude the imperfect diligence against the brother , so much more may mr. george iohnstoun , who is their singular successor . it was duplyed by the defender , that mr. george iohnstoun , albeit he be singular successor , yet he is infeft after sir charles erskin ; and therefore the question now is only betwixt the appryzer , having charged the brother in special , to enter to these lands to his grand-sir , and these sisters being infeft as heirs to the same grand-sir , and albeit they could only infeft themselves as heirs to the grand-sir , the brother never having been infeft , to the effect , that they might either reduce , or redeem the appryzing led against their brother , because the charge to enter heir , did state their brother charged , as if he had been actually infeft , only in relation to , and in favours of the appryzer , who charged him , yet as to that appryzer , he is in the same condition , as if robert had been actually infeft , and there is no law requiring him to obtain infeftment , or to charge the superior during the life of robert , who is specially charged ; but as in other appryzings , so in this , he may charge the superior , or obtain infeftment when ever he pleases . it is true , that if a singular successor had obtained infeftment upon the resignation of richards heirs , entered and infeft before the appryzer had obtained infeftment , the appryzers delay might have prejudged him , and preferred the first compleat right , but the heirs themselves could never exclude him , though their infeftment were prior . the lordi found the second defence and duply relevant , and found the infeftment upon the appryzing ( against the appearand heir ) specially cla●ged , and the appriyzing it self to be as valide , as if the appearand heir had been actually in●eft , and that the compryzing became not void through want of infeftment , or charge against the superior , during that appearand heirs life . alexander chisholm contra renies , eodem die . alexander chisholm as executor to iohn graham of orchel , pursues william and archibald renies for a bond , granted by them to the defunct , in anno . who alleadged that the true cause of the bond was by transaction of a blood-wit , made by the laird of gloret , and mr. iames row , in whose hands this bond ( then being blank ) was put , and which unwarrantably came in the hands of orchel the party , who in stead of . merks , filled up . merks , which is offered to be proven by the arbiters oaths , yet on life . the pursuer answered , that his bond could not be taken away by witnesses , especially extrinsick witnesses , there being no writ relative to this bond , or of the same date , or witnesses that might give any presumption of the cause thereof . the defender answered , that there were here far stronger presumptions , viz. that this bond hath been dormant . years , albeit it bore no annualrent , and orchel was known to be in great necessity , and by ocular inspection , it appears to be filled up with another hand , and blotted , which presumptions , being so singular , give ground enough to the lords to examine witnesses , ex nobili officio . the lords ordained the witnesses and arbiters to be examined ex officio , reserving to themselves what these testimonies should operat , in respect of the antiquity and singularity of the case . captain coningsby contra captain mastertoun , feb. . . captain coningsby , captain of a privateer , pursues captain mastertoun for his share of two prizes , taken upon the th . of august . upon two grounds , first , upon concourse , because both these privateers being in view of the first prize , did both make up to her ; coningsby being nearest , and that when they came to near distance , within half a mile , coningsby fired the first gun , mastertoun the second , and coningsby the third ; at the firing of which the prize streekt sail , which signified her surrender without more resistance ; and albeit mastertoun being to the windward , came first aboard , yet it was without resistance , the prize having rendered before , by streiking sail ; coningsby being within a small distance , came presently up , and demanded his share , according to the proportion of the men and guns of both friggats , being the ordinar rule of division of prizes , betwixt concurring friggars . dly , upon the ground of consortship , or society made up betwixt the two captains , after taking of the first prize , and by the same consortship , craved the share of a second prize , taken that same day , it having been agreed , that both should be sharers in all prizes that should be taken by either , till their victuals were spent . the defender , mastertoun and his owners , alleadged absolvitor , from both these grounds , for as to the concourse , it is not relevant , unlesse the pursuer had alleadged that he had a real influence upon the capture , for as to any guns he shot , they were without a miles distance , and mastertouns friggat being much lighter and swifter , did oversail coningsby , and when the prize streikt sail , coningsby was a mile behind , and at the same distance when she was taken , and therefore was neither concurrent in the force , nor in the fear , and as to the consortship , it was answered , first , that albeit there was a communing of consortship , yet there was no concluded agreement , for coningsby claimed a share according to men and guns , which mastertoun denyed , having far fewer men and guns , whereby he that took the prize would have had the smallest share , so that it evanished . dly , albeit there had been a consortship made by the captain , yet that could not be effectual , until it had been concluded in writ . dly , it could not be effectual in prejudice of the owners ; the captain having no power to make any such consortship , either by his office , or special commission . the pursuer answered , that his alleadgeance upon concurrence was most relevant , he being nearer when the chase began , and within a small distance when the pryze streiked sail , and was taken ; and it cannot be doubted but the prize had terror of both , to the second , masters of ships by their office , may in many cases impignorat , or sell the ship , or outreik , and captains of privateers having commission to make prize , have eo ipso , the power to use the most conducible means , and so to make consortship for that end : and albeit the first prize was taken before the consortship , yet the pursuer having upon his concourse demanded a proportion , conform to his men and guns , and being far stronger nor mastertoun , and able to master him , and his prize both , he might in such a case transact , and make this co-partinary , which was useful to his owners , making them to have the half of the first prize , whereof they would not have fallen above a third or fourth part , so that it was utiliter gestum , et transactum in re dubia , and whereas it is alleadged to have been but a communing , the contrair is evident , by the putting in of coningsbies men both in mastertouns ship , and in the prize ; neither is there any necessity of writ in such transactions made in procinctu belli , et in alto mari . the lords having before answer● examined mastertoun and witnesses hinc inde , for clearing the matter of fact , mastertoun himself did acknowledge the consortship to have been agreed upon , but affirmed that when they came to subscribe the writ , coningsby craved a proportion , by men and guns , which he refused without an equal division , and several of the witnesses having deponed , that that difference was referred to the owners without dissolving the consortship ; mastertoun himself having also deponed , that in contemplation of the consortship , coningsbies men wa● put aboard of him and the prize , and the witnesses having variously deponed anent the distance , when the first prize streiked sail , and was taken . the lords found a consortship sufficiently proven , and that there was a concourse as to the first prize , and therefore found coningsby to have a right to a share , which they found to be the equal share , seing mastertoun was most instrumental , and did actually seize upon both prizes . the minister of cockburns-path contra his parochiners . eodem die . the minister of cockburns-path having obtained a designation of a horse , and two kines grasse , conform to the act of parliament . pursues a declarator of his right thereby . it was alleadged absolvitor , because the designation was null , in respect it was by the bishops warrand direct to three ministers nominatim , and it was performed only by two , the third not having come , and a commission to the three must be understood joyntly , and not to empower any two of them , unlesse it had been exprest , likeas the act of parliament anent the grasse , requires the designation of three ministers . the pursuer answered , that by the act of parliament , . the designation of grasse is appointed to be according to the old standing acts , anent manses and gleibs , which do not require three ministers , that number being only required by the act of parliament . which is rescinded , and not revived as to that point , and seing three ministers are not neces●ar , but that two are sufficient , the designation done by two is sufficient . the lords sustained the designation , unlesse the defender shew weighty reasons of prejudice upon the matter . sir john weyms contra the laird of touchon , february . . sir iohn weyms having a commission from the parliament to lift the maintainance , when he was general commissar , charges the laird of touchon for his lands , who suspended on this reason , that by that act and commission , singular successors are excepted . the pursuer answered , that the act excepteth singular successors , who bought the lands , but the suspender is appearand heir , and bought in appryzings for small sums ; and as wodsetters are not freed as singular successors , nor appryzers within the legal , so neither can the suspender ; for albeit the legal , as to the appryzer be expired , yet the act of parliament between debtor and creditor , makes all apprizings bought in by appearand heirs redeemable from them , on payment of the sums they bought them in for , within ten years after they bought them , and therefore as to touchon , who is apperand heir , he is in the same case with an appryzer , within the legal . which the lords found relevant , and decerned against touchon . andrew greirson contra patrick mcilroy , messenger , february . . andrew greirson having employed patrick mcilroy messenger , to use inhibition , and arrestment against sir iames mcdougal of garthland , and having failed to make use thereof in time before he disponed , did pursue him , and houstoun of cutreoch his cautioner , before the lord lyon , whereupon the said patrick and his cautioner were decerned to make payment of merks of penalty , and of the damnage and interest sustained by the pursuer , to the value of the sums , whereupon the inhibition and arrestment should have been used . the messenger and his cautioner raises suspension and reduction , and insists upon this reason , that the decreet is null , as a non suo judice , because albeit the lyon be authorized by act of parliament . cap. . to take caution for messengers discharge of their office , and upon default , may summond messengers and their cautioners , and may deprive the messengers , and decern them , and their cautioners , in the pains and penalty for which they became cautioners , yet the lyon is not warranted thereby to determine the damnage of parties , through default of messengers , which may be of the greatest moment and intricacy ; and would be of dangerous consequence to give the lyon such jurisdiction over all the kingdom . the charger answered , that the messenger was unquestionably lyable to the lyons juridiction , and that both he and the cautioner had made themselves lyable thereto , by enacting themselves in the lyons books , ●nd granting bond registerable therein and it would be great inconvenience to pursue messengers before the lyon only for deprivation and penalty , and have need of another process for damnage , and interest , and that the lyon has been accustomed to decern cautioners so before . the lords found the reason of reduction relevant , and turned the decreet into a lybel , but sustained the decreet as to the penalty of . merks , in which the messenger was enacted , but n●t for the damnage and interest , ne●●her against the messenger nor cautioner . william borthwick contra lord borthwick , february . . william borthwick having charged the lord borthwick for payment of a sum of money , he suspends , and alleadges that william is debtor to him in an equivalent sum , for the price of the lands of hal●eriot , sold by my lord to the charger , conform to a minut produced . the charger answered , that the reason was not relevant , unl●sse the suspender would extend and perfect the minut , which my lord refuses especially , and particularly , to subscribe a disposition of the lands , with common pasturage in borthwick moor. the suspender answered , that he was most willing to extend the minut , but would not insert that clause , because the minut could not carry , nor import the same , bearing only a disposition of the lands , with parts , pendicles , and pertinents thereof , which he was content should be insert in the extended disposition , and it was only proper after the infeftment was perfected , that the charger should make use of it , so far as it could reach , which he was content should be reserved as accords . dly , if he were obliged to dispute the effect of it , it could not extend to pasturage in the moor of borthwick● first , because a special servitude of a pasturage in such a moor , requires an express infeftment , and cannot be carried under the name of pendicles , parts , or pertinents , albeit the moor were contiguous , and the common moor of a barony : but , dly , this moor lyes discontiguous from the lands of halheriot , and my lords lands lyes betwixt , and does not belong to the whole barony , but to some of the tennents of it only . the charger answered , that this being a minut , beh●ved to be extended in ample form , expressing all rights , particularly that the right de jure , could carry , and there was no reason to make him accept of lands with a plea , and de jure pendicles , and pertinents , do well extend to common pasturage , when the said pasturage is so possessed , and it cannot be contraverted , but the heretors and possessors of halheriot , have been in undoubted possession of common pasturage in this moor , and that the rent payable therefore is upon consideration of the pasturage , without which , it could neither give the rent it payes , nor the price , so that when my lord dispones the lands , with the pertinents , and at the time of the disposition ; this pasturage is unquestionably possest as a pertinent of the land ; the extended charter , and disposition ought in all reason to comprehend it expresly : neither is there any difference whether the pasturage be of a moor contiguous , or belonging to the whole barony , seing it cannot be contraverted , but it was possest as pertinent of this room the time of the bargain ; and to clear that it was so possest , the charger produced a wodset , granted by the lord borthwick to himself of the same room , bearing expresly pasturage in the common moor of borthwick . the suspender answered , that the wodset made against the charger , in respect this clause being express in the wodset , he had not put it in the minut , which as jus nobilius absorbed the wodset , and cannot be looked upon as a discharge of the reversion only , because my lord was superior by the wodset , and by the minut he is to resign , likeas in the minut there is a disposition of the teinds , which is not in the wodset . the lords found that the minut ought to be extended , bearing expresly the common pasturage in the moor of borthwick , in respect the same was a pertinent of the lands , sold the time of the bargain , and was not excepted . sir george mckenzy contra iohn fairholm , eodem die . sir george mckenzie insisted in the reduction of the bond subscribed by him , as cautioner for his father in his minority . it was alleadged for iohn fairholm , that he could not reduce upon minority , because he had homologat the bonds after his majority , in so far as he had accepted discharges of the annualrent , bearing deduction of the bond by his father as principal , and him as cautioner , and discharging them both , which discharges sir george himself did receive from iohn fairholm , and payed the money . sir george answered , that the discharges do not bear that he payed the money , but bears that the same was payed by the principal debtor , and his receiving of a discharge , not having payed , cannot import his homologation , or acknowledgement of the bond , for to prevent question and trouble , one may take discharge of what he denyes to be due , and the bond being then standing unreduced , he may well accept a discharge , not knowing the event of the relevancy , or probation of his minority . the lords repelled the defense , and found that the discharges imported no homologation , unlesse it were instructed that sir george , out of his own money , payed the annualrent . the laird of haining contra the town of selkirk , february . . there being mutual pursuits betwixt the town of selkirk , and the laird of haining , the town pursuing a declarator of the right of property of the commonty of selkirk , and haining pursuing a declarator of his right of pasturage in the said commonty , by vertue of his infeftments of the lands of haining , which lands are a part of the kings property of the barony of selkirk , and that this common is the commonty of the said barony , possest by all the adjacent fewars of the barony , and whereof they have been in immemorial possession . the lords did , before answer , ordain both parties to produce all rights , writs , or evidents they would make use of in the cause , and also to adduce witnesses , hinc inde , of both their possessions , and interrupting others . haining produced a charter by the king , in anno . of the lands of haining , being a part of the kings property , bearing cum partibus et pertinentibus , cum pascuis et pasturis , but not bearing in communi pastura , or cum communiis , generally or particularly in the common of selkirk ; he did also produce posterior charters of the same land , bearing cum communi pastura , and did adduce several witnesses , proving . years continual possession , but some of his witnesses proved interruptions , by the town of selkirk's , cutting of divots , cast by him and his predecessors upon the moor. the town of selkirk produced their charter of the burgh , posterior to hainings first charter , bearing that their ancient evidents were burnt by the english , and therefore the king gives them the priviledge of the burgh of selkirk , with the burgage lands thereof , cum communiis ad dictum burgum spectantibus , which the king confirms by a posterior charter , giving the town warrand to ryve out . aikers of land of the common ; they did also produce several instruments of interruption , not only by cutting of the fail and divots , cast by haining or his tennents , but by turning their cattel off the moor , as proper to themselves , and turning off all the heretors cattel they found thereupon , and by yearly riding about the whole marches of the moor. they did also produce a decreet at the towns instance against the tennents of haining , decerning them to defist and cease from the moor ; in which decreet , hainings predecessor was provost of selkirk , and is pursuer of the cause ; they also produced two missives , written by umquhil haining , acknowledging that the town had cut his divots , casten upon the head room , and making apollogy for casting of the same , denying it to be by his warrand or knowledge ; they did also produce two acts of the town court , bearing haining to have desired liberty to draw stones off the common to build a park dike , and to cast some divots for his tennents houses ; they did also adduce several witnesses , proving their continual , and uninterrupted possession of the moor this fourty years and more , which proved also frequent interruptions against haining , especially by cutting of divots , and also by turning off his cattel , upon which probation it was alleadged for the town that they had instructed sufficient right to the property of this moor , and that they had debarred the laird of haining and his tennents therefrom , whenever they heard they came upon the same . it was answered for haining , that he did not deny the town of selkirks right of pasturage in the moor , but did deny they had right of property therein , but that the property did yet remain in the king , as a part of the barony of selkirk , being of the kings annexed property , but that the said property ( as to the moor ) was now burdened with a common pasturage , belonging to the town of selkirk , and also belonging to the laird of haining , and the other feuars of the barony of selkirk , and therefore alleadged that his charter in the year of god . being long before any charter , granted by the king to the town , did feu to his predecessors , the lands of haining , cum pertinentibus , cum pascuis & pasturis , and this common being the commonty of the barony of selkirk , the king feuing a part of the barony , cum pertinentibus , et pascuis , did certainly thereby grant all that belonged to these lands , as pertinent thereof ; as it was the time of the feu , being then possessed by the kings farmorers , but that they had common pasturage in the moor of selkirk , is not only presumed ( because it is the common of the whole barony , and possest by all the adjacent feuars thereof ) but also by their continual possession since ; for possession . years is sufficient to prove all bygone possession , since the right capable of that possession , it being impossible to adduce witnesses to prove possession eight score years since otherways , and therefore as in the case of the lord borthwick , and william borthwick , decided the th of this instant . the lord borthwicks minut , disponing the lands cum pertinentibus , without any word of pasturage , was found to carry common pasturage in the moor of borthwick , as being a pertinent of the lands disponed the time of the minut , and not reserved , much more the king disponing the lands of haining , not only cum pertnen●tibus , but cum pascuis , et pasturis did carry to haining the right of common pasturage in the common of selkirk , being then the commonty of the barony , so that any interruptions done since , cannot take away the right of common pasturage once constitute by the king : and albeit the king had unquestionably granted the right of property to the town thereafter , yet that could not prejudge the common pasturage of another constitute before . for if haining claimed this common pasturage only by possession , and prescription , interruptions might be sustained to exclude the famine , but he claimes it chiefly by vertue of his infeftment , as having right thereto the first day he was infeft , so that his possession since , albeit troubled by this commonalty , yet preserves his right , that the town cannot alleadge a total and compleat possession , excluding him , and thereby taking away his right by prescription in their favour ; and as to the towns charter , cum communiis , it contains nothing per expressum of this moor , or pasturage therein , nor gives any thing de novo , but bears cum communiis ad●urgum spectantibus , which the king might have given , though there had not been a commonty within . miles , in the same manner , as the common clauses in all charters , bearing coal , and chalk , cuningars , or ducats , whether there be any or not , and the most the town can pretend by their charter , is , that they being a burgh , erected within the barony of selkirk , cum communiis , may therefore claim pasturage with the rest of the feuars of the barony , but cannot exclude them as to the liberty granted by the king , to ryve out a . aikers , it clearly evinceth that they had not the property before , neither did that take any effect , nor could it , because the common pasturage ( constitute to the feuars before ) would have hindered any posterior power of tillage : as to the decreet against the tennents of haining , it is in absence , the heretor for the time not being call●d , and albeit it bears hainings predecessor , as provost to be present , that will neither import his consent , nor knowledge , countrey gentlemen being then ordinarly provosts of towns , who lived not with them , their affairs at law were managed by their town clerk and baillies , though the provosts name behoved to be insert ; neither did this decreet take effect , for hainings tennents never ceased to pasture : as to the letters they do only acknowledge the towns head rooms , because in great commonties , it is ordinar for several proprietars , to have peculiar places , most convenient for them where they law their cattel , and casts fail and divot , and which doth sufficiently consist with the commonty ; as for the acts of court , they can prove nothing against haining . the lords found that the town of selkirk had undoubted right of p●sturage , fewel , fail and divot in this commonty , and that they had immemorial possession thereof , without any interruption , and found that haining had no right by vertue of possession , and prescription , but found that by vertue of his charter , anterior to the towns right , he had right to common pasturage in this moor , it being the common moor of the barony ; but seing he did not sufficiently prove possession of fail and divot , but was therein continually interrupted , much more then in the pasturage , and that nothing appeared , that in the time of his original right , the feuars had priviledge of fail and divot . therefore the lords found that he had no right thereto , albeit common pasturage doth ordinarly carry therewith fail and divot , yet they found that it was a several servitude , separable therefrom , either by consent , or custom , and found that the town should enjoy their head rooms , excluding haining therefrom . iames colquhoun contra watson , eodem die . james colquhoun pipe-maker in glasgow , having gotten a tollerance from george blair ( heretor of lunloch ) to dig clay for pipes there for certain years , excluding all others ; there being an anterior tack of the lands , the tennents grants licence to one watson , for digging clay there for pipes : the heretor also concurrs with watson . colquhoun pursues watson for intrusion , and to desist from medling with any clay there , and for paying the value of what he had medled with . watson alleadged absolvitor ; first , because the licence granted to the pursuer , being exclusive of all others , was contra bonum publicum . dly , the licence was posterior to the tennents tack , who thereby had right to the whole profits of the ground , and accordingly gave tollerance to the defender . dly , the heretor having granted the tack , could not in prejudice thereof , give power to the pursuer to break the arable ground , and there being much more clay nor the pursuer could make use of , ought to give power to the defender to make use thereof for that effect . the pursuer answered , that a total and negative licence was legal , as well as any other total and sole right , and it was free to the heretor to grant the same , but could do no posterior deed contrair thereto , because he had bound up his own hands thereby ● and as to the tack , whether posterior or anterior to the licence , it can only give right to the tennent , uli fruiut colonus , to manure the ground , and reap the profits thereof , but cannot give him right to any mineral under the superfice , whether coal , lime-stone , clay , &c. which is reserved to the heretor , and he may make use thereof , which necessarly imports that he may break up the ground to come at it , or else the right were not reserved to him , and he is most willing to satisfie the tennents damnage by opening the ground ; neither needs any reservation thereof be exprest , because it s implyed in the nature of the tack , which gives only power of the superfice , tillage , pasturage , and profits thereof , but the tennent has no power to take away part of the ground , or to give licence to any other so to do . the lords repelled the defenses , and found the pursuer had the only right by the heretors exclusive licence , and that the tennent by his tack had no right to this clay ; and that albeit his tack was prior to the pursuers licence , he could give licence to no other . mr. iohn forbes contra innes , february . . master iohn forbes insisted in the cause against margaret innes , mentioned in the th , of ianuary last , for mails and duties , as assigney by margaret allardice , who being infeft in liferent in principal lands , and warrandice lands , and the principal lands being evicted , she and the pursuer ( her assigney ) returns upon the warrandice lands , wherein margaret innes is infeft in liferent by her husband , who stood publickly infeft therein , upon the resignation of margaret allerdices husband , and who alleadged absolvitor , because the defender , and her husband being infeft , and in possession these . years past , have the benefit of a possessory judgement , and so cannot be put from her possession , till her right be reduced . the pursuer answered , that the benefit of a possessory judgement can take no place against a pursuit , upon an infeftment in warrandice , unlesse the possession had been seven , or more years after the eviction ; for before the eviction , there could be no pursuit upon the infeftment of warrandice in the same case , as an infeftment of liferent is not excluded by a possession during the husbands lifetime , when the wife could not pursue . the defender answered , that the pursuer ought in a petitory judgement to have declared the distresse , before he could put the defender from her possession . the pursuer answered , there was no declarator required , but only the eviction , which gives immediat recourse upon the warrandice lands . the lords repelled the defense , and found no need of a declarator , or reduction to attain recourse , and that a possessory judgement was not compent upon any possession , anterior to the eviction . the defender further alleadged absolvitor , because this pursuit is founded upon margaret allardice her infeftment in warrandice , which is base holden of her husband ; and the defender and her husbands infeftment are publick , holden of the superior , and albeit posterior to the infeftment of warrandice , yet is preferable , the infeftment of warrandice being base , never cled with possession . the pursuer answered , that infeftments in the warrandice are sufficiently validat by possession of the principal lands , especially now when all seisings must be registrat , as was lately found in the case of iohn scot : and the said margaret allardice has not only been in possession of the principal lands since her husbands death , but her husband was in full possession of both , which is more then sufficient . the pursuer answered , that in scots case this was singular , that in iohn scots case , both the principal and warrandice lands were granted in an infeftment , and so the person infeft being in possession of the principal lands , his infeftment could not be partly publick , and partly privat , but this infeftment in warrandice is ex intervallo . the lords repelled also the defence , and found the infeftment in warrandice ( though base ) sufficient , the person infeft being in possession of the principal lands , albeit the infeftment in the warrandice lands was ex intervallo . farquhar of tonley contra gordoun , eodem die . farquhar of tonley pursues reduction of a bond granted by him upon minority and lesion . it was alleadged absolvitor , because he had homologat the bond , in so far as he being cautioner in the bond , he had pursued releif , and obtained decreet for releif , which did necessarly import , that he acknowledged himself bound , else he could not have craved releif . the pursuer answered , that seing the bond stood unreduced at that time he might lawfully pursue the principal debitor to releive him , against which he could have no objection , for the benefit of reduction upon minority , is peculiar to the minor himself , and no other can make use of it ; and in his pursuit of releif he might very well have declared that , in case he obtained not releif against the principal debitor , he might free himself by reduction against the creditor , so that homologation being a tacite consent , can never be presumed where the deed done might have another intent , and his pursuit for relief was not to bind himself , but to louse himself ; he did also alleadge that the pursuit of releif was at his fathers instance , and his own promiscuously , and after the decreet was thereupon extracted , he gave it in again , and took a new extract , which bears not a releif for him of this debt . the lords found the pursuit , and decreet of releif , to be no homologation to exclude this reduction . the defender then offered him to prove that the pursuer was major when he subscribed , so that the lybel and defence being contrary , and great advantage arising to him , who had the benefit of probation by highland witnesses . the lords resolved to prefer neither to probation , but before answer , ordained to adduce such evidents , and adminicles , as they would use to prove the pursuers age , that they might prefer the strongest and clearest probation . sir laurence scot of clerkingtoun contra the lady clerkingtoun , february . . sir laurence scot of clerkingtoun having obtained himself to be executor surrogat ad omissa et male appreciata of his fathers testament , and having obtained licence to pursue , pursues the lady clerkingtoun as principal executrix , who alleadged no processe upon the licence , because licences are only competent to executors principal , before there be any confirmation , after which the commissars neither use , nor may give licence ad omissa , as was found the . of december , . halliday contra observed by dury . the pursuer answered , that there was more reason to sustain licences after the principal confirmation , when the best of the inventar was given up , and what remained was uncertain , and for the practique the lords had since allowed licences after confirmation . the lords repelled the defense , and sustained the processe upon the licence . bartholomew parkman contra captain allan , eodem die . captain allan a privateer , having taken bartholomew parkman an swede , he obtained him to be declared pryze by the admiral , upon this ground mainly , that he had carried tar , being counterband goods , from norway to holland , then in enmity with the king , and from thence carried ballast to france , and returning with a loadning of salt , was taken , because by the captains commission from the admiral , he was warranted to to take ships carrying counterband goods , or to take the saids ships in their immediat return , after they have carried counterband goods to the kings enemies , which hath always been the custom of scotland , as appears by commissions granted by the admiral , anno . of the same tenor , and by a decreet of the admiral at that time , finding the lybel relevant , bearing that a ship was taken in her return , having taken in counterband to the enemy in that voyage , which is founded upon evident reason , because that while ships are going towards the enemy , it is but an intention of delinquence against the king , and assisting his enemies , but when they have actually gone in , and sold the counterband , it is delictum commissum , and though it might infer a quarrel against the delinquent , when ever he could be found , yet the law of nations , hath for the freedom of trade , abridged it to the immediat return of the same voyage , because quarrels would be multiplied , upon pretence of any former voyage . parkman having raised reduction of the admirals decreet , insists on these grounds . first , that by the kings proclamation denuncing the war , it is evident that the king gives only command to seise upon ships having in them enemies goods , or counterband goods , without any mention of seising them in their return , which would destroy the freedom of all trade , for upon that pretence , every ship that were met with at sea might be brought up , and therefore the kings proclamation did justly and humanly warrand the seisure of ships , only when the enemies goods , or counterband goods is found aboard , in which case , for most part , the cause of seisure is sensible to the eye , wherewith there was also produced a testificat from judge ienkins , judge of the admirality court of england , by the kings warrand upon the petition of the kings resident of sweden , wherein he having advised with the kings advocat general , who dayly attended that court , declareth that none of them remembers that in this war any neuter were made pryze in their return , with the product of enemies goods , and that he knew no law nor custom for the same . dly , there was produced the treaties betwixt the king and the crown of sweden , bearing that the swedes should be made pryze , carrying enemies goods , or counterband goods , si deprehendantur . it was also answered to the reasons of adjudication , that the stile of a commission , not granted by the king immediatly , but by the admiral , could be no ground of adjudication of friends and allies , who were not obliged to know the same , or what was the tenor of the admiral of scotlands commissions , but were only obliged to take notice of the law and custom of nations , and of the kings proclamations of war : and as to the admirals commission , and decreet thereupon , in anno . it could not evidence the custom of scotland , being but a decreet in absence , and upon a lybel , bearing not only the carrying of counterband , before in that voyage , but having actually aboard enemies goods the time of the seisure , which lybel is found relevant by the admiral , but it appears not that he would have found it relevant alone , upon the product of counterband , much lesse that that was proven , and in decreets in absence , the lords themselves suffers decreets to pass with far less consideration , and ofttimes of course , so that it were strange to fortifie the admirals decreets that are now quarrelled after full hearing , upon an decreet of the admirals in absence . it was answered for captain allan , that the pursuer could not enjoy the benefit of the swedish treaty , because he had transgrest the treaty , and served the kings enemies : and as to the testificat of judge ienkins , or custom of england , this being a distinct kingdom , is not ruled by the custom of england , and judge ienkins testificat was impetrat by the pursuer , and not upon any commission , or proposal made by the lords , and the case therein mentioned is only anent the seisures in the return , with the product of enemies goods , and says only that they do not remember that ever the case was decided there , but says not that the courts of admirality had found , that upon any plea or dispute , that ships could not be taken , unless they had aboard counterband , or enemies goods . the lords having formerly in this cause desired to know the kings pleasure , whether by the swedish treaty , which maketh far fewer things counterband , then what are such by the law of nations , and by which tar is not counterband , the swedes might loaden tar in norway , not being their own growth , and carry it to the kings enemies . the king returned answer negative , in which the lords acquiesced ; and as to the present dispute , the lords did not find the grounds alleadged for the privat●er relevant , or sufficient to instruct the custom of scotland , or the rule of the war , and had litle respect to judge ienkins testimony , and therefore were not clear to approve the adjudication , but before answer , did declare that the lords by their own commission , would inquire in the custom of nations , concerning the return of counterband , or enemies goods , both by commissions direct to england , and other places . captain strachan contra morison , february . . captain srachan pursues the heirs of umquhile george morison before the admiral , for a ship and goods m●d●ed with wrongously , by george and others , in anno . they raise reduction on this reason , that there was no probation but one witness , and captain strachans oath taken in supplement . the lords having considered the probation , in relation to the ship , found it sufficiently proven , that captain strachan was an owner of an eight part of the s●●p , but found that the value thereof was not proven , and seing morison , and the other partners sold the ship , after they had long made use of her , without strachans consent , they found that strachans oath in litem ought to be taken as to the value , and would not put him to prove the same after so long time , and for the profits thereof , ordained him annualrent since he was dispossest . this question arose to the lords , whether there being three partners beside captain strachan , who all medled whether morison should be lyable in solidum , or only for his third part , in which the lords found the ship being corpus indivisibile , and all the partners in a society , and that captain strachan being absent in the kings service , from the time of their medling to the kings return , and the other parties in the mean time becoming insolvent . the lords found george morison lyable in solidum for the eight part of the ship ; but as to the wines and others that were in the ship , whereanent there was no co-partinery proven , and but one witness of george morisons intromission , and captain srachans own oath in supplement . the lords found the same not sufficient , and yet allowed captain strachan in fortification of the decreet , to adduce further probation . gavin cochran contra 〈…〉 eodem die . gavin cochran as donator to the recognition of certain land , holden waird of my lord cochran , pursues the vassal , as having alienat the major part , and also the subvassal to hear and see it found and declared , that the lands had recognosced by the alienation , made by the vassal so the subvassal . it was alleadged for the subvassal that he was minor , and therefore during his minority , non tenetur placitari super haereditate paterna . it was answered , that that holds only in disputing the minors rights , but is not sufficient against the obligation , or the delinquence of the defunct . dly , the party principally called in this process , is the vassal who is major , and whose fee falls to the superior by his alieanation , and the subvassals right falls only in consequence , so that no priviledge of the subvassal , can hinder the superior to declare the recognition of his immediat vassal . the lords repelled the defence , and sustained processe . captain mastertoun contro the strangers of ostend , february . . captain mastertoun having taken a ship of ostend pryze , obtained her adjudged before ludquharn , admiral deput of peterhead . the strangers pursued reduction before the high admiral at leith , and obtained sentence , because the decreet at peterhead , and warrands thereof were not produced , by which sentence there was decerned . dollars for the ship and loadning , which was fish , taken in island mastertoun raises reduction of the high admirals decreet on this ground , that it was meerly in absence , and proceeded without valuing the ship or goods , and offered to restore the ship , or value , and what he got for the fish , which was but a dollar the barrel , in regard they spoilled the time of the dependence of the plea , and craved allowance of what he payed to the king , being the fifteenth part , and the tenth part to the admiral , and alleadged he could be lyable for no more nor quantum lucratus est , seing he did bona fide bring up this ship , finding aboard a pass from the magistrats of ostend , which was defective , not conform to the articles of treaty with the king of spain , in so far as it bore no mention of the sailers , that they were the king of spains subjects , and the sailers did depone that they did belong to zurickzea , under the states of holland ; and albeit now ex post facto , he is informed that they did reside sometime in ostend , yet he being in bona fide , can be lyable in no more nor what he got . it was answered for the strangers , that it being acknowledged , that the goods or persons were free , it cannot be denyed in justice to restore them to their ship , and true value of their goods , that they might have made thereof in ostend , and not the price thereof that the captain made , for seing he acknowledges that they were corrupted for want of salt , it was his own fault , for he should have caused raise the fish in the barrels , and salted them again ; and as for the king , and admirals part , there is no reason to allow the samine , and put the strangers to a processe against the king , and admiral ; but if it be just he have restitution of his goods , he must have it of his whole goods , at the same availls as he could have sold them , with his damnage and interest , and any pretence of bona fide's can operat no more , but to free him from a spuilzy , and the pursuers oath in litem , for the value and profits , and to restrict the process to wrongous intromission , to the true prices , and true damnages . it was answered for the captain , that seing he was in bona fide to seize upon the ship , and seing he did obtain decreet from the judge ordinar , he was also in bona fide to sell and roup the goods , as they gave at peterhead ; and it does not appear that there was salt there for salting them again , nor men that had skill , nor could they medle with them till decreet was pronunced , which was a long time ; they were also in bona fide to pay the king and admiral , neither are the kings officer nor admiral cited , but only the admiral deput . the lords found , that seing the pass did not bear the sailers to be the king of spains subjects , conform to the articles , that the captain was in bona fide to bring her up , and found him free of any damnages , and found him lyable for the price of the ship , and fish , as they might have been sold at peterhead by rouping , as use is , if they had been preserved ; and found him obliged to have preserved them ; and repelled the alleadgeance as to the tenth and fifteenth , but prejudice to the captain and owners to seek repetition thereof , and found no necessity to cite the admiral , his deput being cited . merchants of hamburgh contra captain dishingtoun , february . . captain dishingtoun having taken a merchant ship of hamburgh , and obtained her to be declared pryze : the hamburgers raises reduction on this reason , that the only ground of declaring her pryze , was , because she carried counterband goods towards the king of denmarks domissions , being then in enmity with the king , which was no relevant ground , because it is evident the ship was seized a moneth before the proclamation of war against the danes . it was answered for the captain , that it is not the proclamation of war that makes the war for the kings declaration , is only to give an account to the world , upon what account the king had made war with the danes ; and it is notour that there were frequent acts of hostility , both by the danes , and against the danes before this capture . it was answered for the strangers , that publick denunciation makes only a publick and lawful war ; but whatever might have been done against the danes , the hamburgers ( being the kings allies and friends ) were not obliged to know the same , until such time that the proclamation of war might come to their ears , so that they have done no fault , being in bona fide to continue their trade , until the war was made publick to the world. it was answered for the captain , that he was in optima fide to execute the kings commission , bearing expresly to make pryze of all carrying counterband goods to the danes , and therefore he could not be decerned as praedo , but the most can be decerned against him ( though the pursuer should be found to have been in bona fide , to trade with the danes ) is to restore in quantum lucratus est ; but so it is that he made no profit , for after the capture , he being pursued at sea by the enemy , was forced to leave the ship in question , being loadned by him , whereby she was driven a shore , and suffered ship-wrack . the lords found that the hamburgers were in bona fide to continue their trade with denmark , and to carry to them counterband goods at the time of the seisure , and therefore reduced the admirals decreet , as to the restitution of the ship and goods , or what profit the defender made of them , but for no higher value nor damnages , in respect the captain was in bona fide to execute the kings commission , unlesse it were alleadged , the captain was in culpa in the losse of the ship , or misprising the goods . lord almond contra thomas dalmahoy , eodem die . the lord almond pursues a declarator of the escsheet of thomas dalmahoy , who alleadged absolvitor , because he was denunced upon a bond granted by the dutchess of hamiltoun , wherein he being only charged as husband for his interest , and denunced at the mercat crosse of edinburgh , and peir and shoare of lieth , being then residenter in england ; and now the marriage being dissolved by the dutchess death , his interest ●e●seth as to all effects , and so as to this horning . dly , the denunciation being upon a bond due to the dutchess own mother , done by mr. iohn el●is commissioner for her , it was without warrand , and so null . the lords repelled both defenses , and found that the contumacy incurred by not paying , or suspending deb●to tempore , which is the cause of the denunciation , was not taken away by the dissolution of the marriage . patrick dun contra isobel and elizabeth dunes , his sisters , eodem die . umquhile doctor dun having provided . merks to one of his daughters , and . merks to another , and entertainment during their minority , that their portion might go to the fore , bearing annualrent ; did thereafter grant to isobel another bond of . merks , whereof patrick his heir raises reduction , as being done on death-bed , after the defunct had broken his leg , and the same was cut off , whereof he took a fever and died , and never went out to kirk or mercat . the defenders answered , that they offered them to prove , that albeit the defunct happened not to come out , yet he was in his leige pousty , and perfect health , and did all his affaires , which did much more evidence his health , then the stepping out to the mercat , dly , the bond in question being a provision to a daughter , it was a natural obligation , which the father might do on death-bed● the pursuer answered , that the law allowed no other evidence to give capacity to dispone in leige pousty , but going out to kirk and mercat , and if any equivalent were accepted , it would render the most ancient law doubious , and elusory . as to the second , the defender having been portioned before , any adition on death-bed had not so much as the favour of a portion natural . the lords rep●lled the defences , and sustained the summonds . the owners of the ship called the castle of riga , contra captain seatoun , eodem die . this cause being debated the th . of iuly last , in which debate captain seat un did chiefly insist to maintain the decreets of adjudication upon the presumptions , and evidences , that the ship or loadning did truly belong to the hollande●s ; and that their passes and bills were but contrivances , which the lords found not sufficiently proven to make her pryze . now the captain insists upon another ground , contained in the decreets of adjudication , viz. that she was navigat by hollanders , the kings enemies , and therefore by the kings declaration of the war , the ship and goods are lawful pryze , because the last article of the declaration bears expresly to take all ships pryzes , that are sailed by the subjects of the united provinces ; and by the testimony of the witnesses taken at cromarty . it was evident that the whole company was hollanders , taken on at amsterdame , and residenters there . it was answered for the strangers , that there was a solemn treaty perfected betwixt their king , and the king of sweden their soveraign , that treaty behoved to be the only rule , as to the subjects of sweden ; by which there was nothing provided , that a ship should be pryze , being sailed with hollanders ; but on the contrair , the passe agreed upon by the treaty , and exprest v●rba●im therein bears , that oath is to be made , that the vessel and loadning belongs to swedes , but makes no mention of what countrey the sailers should be ; and bears that the master of the ship may be of any nation , and therefore mul●o magis , the sailers . it was answered for the captain , that the treaty with the swedes cannot be the adequat rule , in relation to all swedish pryzes , there being multitudes of cases not touched therein ; and it cannot be thought the intent of the king , in so short a treaty , to comprehend all the laws of nations at sea , and all the cases de jure belli betwixt their subjects , but the treaty doth only clear some most important cases , and grants special priviledges to either party , as that such a passe should be sufficient , and that there should be no search at sea , where such a passe is found , nisi gravis suspicio subsit , so that these cases must still be regulat by the law and custom of nations , and especially by the kings declaration of the war ; so that these making the rule , the treaty can make but the exception , and therefore the king , by the declaration of the war against the h●llanders , gave an expresse command to make pryze all ships belonging to the hollanders , or having in them goods belonging to the hollanders , or counterband goods going to the hollanders , or navigat by any number of the hollanders , this must stand as the rule , seing there is nothing in the treaty to alter the same , neither doth the tenor of the passe ( not mentioning the sailers ) infer any thing , because the sailers can be known of what nation they are , by their language , and it were unnecessar to cause the swedes depone upon oath that they are swedes , but cannot be so well known to whom the ship and goods belong , and therefore oath is to be made thereupon ; and albeit a passe be found aboard , conform to the treaty , whereby it is provided , ne quid ulterius inquiratur in navigium , hon●● aut homines nulla t●nus inquiratur , it immediatly follows , quod si gravis aliqua susp●cio subsit , that there may be seisure even where there is a passe , or if the passe were old or vitiat , or appear not to agree with the hand , and seal of the places whence it is directed , seisure might be made , and therefore in this case , the whole company being hollanders , as is evident by their language , although there had been no suspition of the truth of the passe , they might justly have been seised and confiscat , conform to the kings declaration ; neither is it a good argument , that because the treaty gives leave to have the master of any nation , that therefore all the sailers may be of any nation , and therefore if the company might have been of any nation , there needed no such expression for the master , exceptio firmat regulam in non exceptis , which is the more clear , that by the treaty betwixt the king , and the king of spain : there is a special priviledge to the ●l●ndrians , that they shall not be questioned , as being navigat by hollanders , in respect of the identity of their language , which would never have been demanded , if by the law of nations , hollanders the kings enemies , might have been made use of by any in amity with him . the lords found that this swedish ship being navigat by the sailers , all or the most part being hollanders , residenters in , or about amsterdam , when they entered this voyage , that the same was a sufficient ground of confiscation , in respect of the kings declaration of war , and that by the swedish treaty , there was no priviledge granted to the swedes as to this matter , and therefore assoilzied from the reduction , having found it sufficiently proven by the testimonies at cromarty ; and whereas it was alleadged that these testimonies were extorted , by holding swords and pistols to the companies breasts , both at sea , and after landing , to make them confess that they and goods belonged to hollanders . the lords found the alleadgeance relevant ▪ that at land , and about the time of their testimony , the witnesses were so threatned , but would not sustain that they were so threatned at sea , when they were taken , unlesse it were alleadged , that at sea they were forced to swear , or depo●e upon oath , whereupon it might have been presumed , that by reason thereof they would adhere to it when they came to land. george graham contra grissel tours , and the laird of kilhead her husband , february . . george graham having obtained a decreet before the baillie , against grissel tours and her husband , for furnishing to her first husbands funerals ; her husband suspends , and raises reduction on these reasons , that albeit he stayed sometimes in a chamber in edinburgh , he was not in this jurisdiction , and that his wifes oath could infer no burden upon him , and that the baillies did unwarrantably hold him as confest , for not giving his oath of calumny , whether he had reason to distrust his wifes oath . the lords found this unwarrantable , and therefore reduced the decreet as to the husband , but decerned against the wife , ad hunc effectum , to affect her if she survive , or her executors after her death , or otherwise to affect any other goods she had excepted from her husbands jus mariti . the laird of milntoun contra the lady of milntoun , eodem die . the lady milntoun having obtained decreet of divorce against iohn maxwel her husband , the laird of milntoun having right from her husband to her liferent , which right fell by the divorce ; pursued a reduction of the decreet of divorce , wherein the witnesses being examined , and re-examined . the lords adheres to the decreet of divorce , and assoilzies from the reduction ; at which time the lords having allowed him to insist as in reprobators : he now pursues the same for convelling the testimonies of the witnesses , because they were corrupted and suborned , both by promises , and getting of good deed , and being prompted how to swear , as their oath on re-examination bears . and because their oath is not only suspicious , but impossible ; because it is offered to be proven , that the parties were alibi , at a great distance from the place , where the witnesses deponed that they committed adultery , and that for several dayes and nights thereafter , and before . the defender alleadged that the lybel was no wayes relevant . first , in so far as it would convel the testimonies , as to the principal points referred to probation , against which no contrair testimonies ( either of the same , or other witnesses ) can be admitted by the law of all nations , otherwise plea's should be infinit : for if the second witnesses might improve the testimonies of the first , third witnesses might improve their's , and so without end : and the alleadgeances that the parties were alibi , are most irrelevant , and is ordinarly rejected , as being a contrair and incompatible probation , for this being a crime unlawful at all times , and places , albeit the witnesses should have forgotten , or mistaken the time , if they be positive in the act non obest , and so proving alibi at that time , which is not essential is of no moment . dly , the reprobators in so far as they would improve , and convel the extrinsick points of the testimonies , ad hunc effectum , to render the witnesses infamous , and their testimonie invalide as to the whole , which is the proper and only subject of reprobators , the famine is not now competent , unless first at the time of the taking of the testimonies , the pursuer had protested for reprobators , and had not referred his objections against the habilitie of the witnesses , to their own oaths , but had only interrogat them of their age , marriage , residence , freedom of partial counsel , or corruption , &c. and upon the reason of their knowledge , in that case reprobators might have been competent to prove the contrair of these extrinsick points , and so infirm the testimony , but here the witnesses being examined , especially as to the interrogators of partial counsel , and as to the reason of their knowledge , and no protestation taken at that time for reprobators , he cannot now make use thereof , and albeit that reprobators were reserved by the lords , yet that was not at the taking , but at the advising of the testimonies , when all that is now alleadged ( as to their corruption , arising from the re-examination ) did appear to the lords , and yet the lords adhered to the decreet of divorce , and first testimonies . the pursuer answered , that he did not intend to convel principally the intrinsick points of the testmonies , but mainly to prove their partiality and corruption , and therewith also to prove their testimonies were false , and impossible ; neither is it essential to protest at the taking of the testimonies , nor is there any necessity that the witnesses oathes should not be taken on the extrinsick points , but on the contrair , the intent of reprobators being , that their oaths , as to these extrinsicks being false , they should be found perjured and infamous , and the whole testimonies to fall . there was no interloqutor at this time , upon this debate . reoch contra cowan , eodem die . reoch pursues cowan as representing a defunct to pay a debt , due by the defunct to the pursuer , who alleadged absolvitor , because reo●h was vitious intrometter with the defuncts goods , in so far as he lifted . pound , belonging to the defunct , and gave his discharge , produced and albeit thereafter he confirmed himself executor dative , yet he wilfully omited that sum out of the confirmation , and so as vitious intrometter , is both debitor and creditor , and cannot pursue the heir . it was answered , that this was res modica , and could not infer the passive title . the lords found that this sum inferred not a general passive title , but only that is made him comptab●e for the sum. maitland contra lesly , february . . in a concluded cause of abstracted multers betwixt maitland and lesly , the pursuer being ●nfeft in the miln , with the multers and sequels , and having proven the astriction of intown multers , and witnesses being adduced concerning the services , for upholding the miln and dam , and bringing home milnstones , who proved that some of the lands were not in use of these services , but by two or three several acts , as once laying in the dam , at which the heretor was offended , and brake the tennents head , and twice going to help home the milnstones , whether these lands were lyable to the services . whereupon the lords considered whether the constitution of a thirlage , with multers and sequels , did by the nature of the right , give the ordinary miln service without relation to possession , so that immediatly after the constitution , thes might be demanded . which the lords decided affirmative , and then found that these lands were lyable to the service , unlesse they had either by paction , or prescriptio● , attained freedom from the service , and found that the testimonies did not prove freedom for fourty years , and that these acts were enough to interrupt , and so decerned for the ordinary services . david henderson contra mr. andrew birny , eodem die . master andrew birny having granted a bond to alexander short , blank in the creditors name , he for an equivalent cause , delivered the same to david henderson , who filled up his name therein , and charges mr. andrew therefore ; he suspends on a reason of compensation , upon a debt owing to him by short , to whom he delivered the blank bond , for whom he became cautioner before he granted the bond , and payed the debt , partly before , and partly after this bond , so that henderson by filling up his name , being assigney , and short cedent , payment or compensation against the cedent , before the assignation , is relevant against the assigney . it was answered , that in this case compensation is not relevant , because the very delivery of a bond , in a blank creditors name , imports that the receiver thereof , may put in any mans name he will , and he may never make use of compensation against him whose name is filled up , otherwise why should the creditors name have been left blank , which if it had been filled up , it behoved to have had an assignation , which is but a procuratory in rem suaem , so that the procurator can be in no better state nor the constituent , but the blank makes the person filled up creditor principally . the lords found compensation not relevant , against a person whose name was filled up in the blank , being a singular successor to him , who first received the bond. mr. william chalmers contra wood of balbegno , eodem die . master william chalmers , parson of feltercarn , pursues reduction of a tack of the teinds of the paroch , granted by his predecessors , on this ground , that it is null by act of parliament , as wanting consent of the patron . the defender alleadged absolvitor , because the pursuer had homologat his tack , in so far as he had received payment of the duty , conform to the tack , which was a clear acknowledgement thereof . it was answered , that this could only be an homologation for the years received , and could not homologat the tack itself , because the tack was a standing right , valid till it were reduced , and the pursuer could get no more then the tack-duty , till he should reduce the same . the lords found this no homologation , to validat the tack . lord justice clerk contra home of linthel , the procurator-fiscal and officers , february . . the lord iustice clerk being fined in . pound for his absence from the lord homes head court of his barony . the officers poinded an ox , in october after the plowing was begun . the lord iustice clerk pursues a spuilzy , as being poinded in labouring time , and insisted against linthel as depute , who gave the decreet , and precept to poind , and as he who knew of the poinding of the ox by the officer , before he was delivered , and commanded to deliver him , and against the officer who poinded , and the procurator fiscal , who by the executions of the poinding , produced ; received the ox from the officer : at the advising of the cause , linthel having deponed by his oath , that the officer had told him an ox was poinded , and he commanded the officer to deliver him , and that he knew not he was a labouring ox , so that that member not being proven , the question was , whether linthel as deput , giving a precept to the officer to poind in common form , was lyable for the spuilzy , if the officer did illegally poind , and so was answerable for the fault of the officer . the lords found him not lyable , and therefore assoilzied linthel , and found that the execution of the poinding was sufficient probation of the delivery of the ox to the procurator-fiscal , especially seing the defenders defended themselves with the poinding , and themselves produced the execution ; and for the violent profits , the lords decerned . shilling for every day , from october to may inclusive , being labouring time , and that yearly since the spuilzy till the sentence . duke hamiltoun contra maxwel of moreith , february . . the duke of hamiltoun , as collector-general of the taxations , having charged maxwel of moreith , he suspends upon this reason , and alleadges that he had imparked , and inclosed a ten merk land , since the act of parliament , . anent the inclosing of grounds , by which , all lands to be inclosed thereafter , are to be free of all publick burdens . it was answered , that the act of convention was posterior , and had no such exception , but on the contrair , took away all former exceptions . it was answered , that an act of parliament cannot be derogat , or abrogat , by an act of convention . the lords found the reason relevant , notwithstanding of the act of convention . ioanna m●alexander contra charles dalrymple , iune . . ioanna m●alexander , a sister daughter , and one of the nearest of kin of umquhile elizabeth dalrymple , pursues a reduction of the said elizabeth her testament , whereby she nominat charles dalrymple her brothers son , her executor , and universal legator , upon this reason , that in the time of the making that testament she was not compos mentis , but fatuous and insensible . the lords having appointed the witnesses of the testament , and other witnesses to be examined thereanent , the witnesses in the testament , and writer thereof being examined , deponed that she was in her right mi●● , and gave order for drawing of the testament , and gave order to subscribe it ; the other witnesses deponed that about that time , for several weeks before , and some time after , the defunct was fatuous , and not in a right mind , and to every question proposed to her , she answered alwise yea , yea , and some words of ravery , which she frequently spoke . the lords having also caused re-examine the testamentar witnesses , that it might appear whether she did only answer to interrogators , as when it was answered , whether she would have charles dalrymple her executor , and universal legator , and whether she said yea● yea ; and whether she gave direction without a forgoing question by words that might signify her sensibility . and having considered the whole testimonies , they found that probation most pregnant , that she was fatuous , and insensible at the time of the making the testament , and therefore reduced , albeit the witnesses were extraneous that proved , and were not present at making the testament , at which time a lucide interval of a person distempered by disease , not constantly fatuous , might have been sufficient . this was stoped till it were further heard . sir iohn gibson contra iames oswald , iune . . sir iohn gibson and iames oswald having mutual declarators of property , of a peice of contraverted ground , lying on the m●rch between two gairs , or bentish strypes of ground , through a moor ; equal number of witnesses being examined for either party , one witnesse for either side proved . years constant possession of the party adducer , and that they did interrupt the other party and turned away their cattel when they came over : some of the witnesses did prove either party to have had possession above . years since , but did not prove that they knew the same constantly so bruiked , neither did they know any thing to the contrary , and many witnesses on either side proved not only that the ●eithes lybeled by the party who adduced them , were holden and repute the true marches for a very long time , but did not express how long ; but some of them deponed , that stones in the meithes were commonly holden and repute to be march stones , and so the testimonies were contrary , and if there had not been mutual probation , either party would have proven sufficiently ; and neither party having bounding charters , the question arose whether the ●preg●antest probation should be preferred , to give the property to that party , and exclude the other , or if both parties , proving so long possession , and mutual interruptions , the probation should infer a promiscuous possession , and right of the contraverted peice of land , and so resolve into a commonty , albeit neither party claimed nor lybeled commonty . the lords found the testimonies of the witnesses to infer a commonty to either party of the ground in controversie , albeit they found that sir iohn gibsons witnesses were more pregnant , yet not so far as to exclude the others , but declared that if either party desired that piece to de divided , they would grant commission for dividing the same , and setting down of march-stones burnet contra nasmith , iune . . alexa● de● burnet of carl●ps , being creditor to sir michael nasmith of ●osso , pursues a declarator against iames nasmith his eldest son , to hear and see it found and declared , that an expired appryzing of the estate of p●sso , now standing in the person of the said iames , is redeemable by the pursuer as a creditor , from the said iames , as appearing heir of the party , against whom it was deduced within ten years after the appearand heirs right , upon payment of the sums , that the appearand heir truly gave out , conform to the act of parliament betwixt debitor and creditor . the defender alleadged absol●itor , because the act of parliament could not extend as to his case , because the act bears , [ where appearand heirs takes right to appyzing of their predecessors lands ] but the defenders father being living , cannot be said to be his predecessor , or that the defender is his appearand heir , and statutes are stricti juris not to be extended to like cases . it was answered , that reason of the law , given in that part of the statute , being the same , and rather more in this case , where there may be collusion betwixt the father and the son , there is no ground to except the same from the act of parliament , the words whereof do bear this case , for in the ordinar stile it uses to be thus express , such a person to be eldest son , and appearand heir to his father , and albeit his father be not dead , he may well be said to be his predecessor , not only in regard of his age , but as being his predecessor in the right of these lands , whereunto the son is a successor , alb●it he be a singular successor . the lords found the clause of the act of parliament to comprehend rights acquired by appearand heirs , in their predec●ssors life , and therefore declared . agnes hadden and mary lawder contra shorswood . eodem die . thomas shorswood having granted an assignation to a bond of . merks in favours of agnes hadden and mary l●wder , they pursue magdalen shorswood , his nearest of kin , to d●liver the same : who alleadged absolvitor● because the assignation was never delivered , but being made a year before the defunctsdeath , remained by him till his death , and was never delivered : and it is not the subscribing of a writ , but the delivery thereof , that makes it that parties , in whose favours it is conceived , unless the party were in family , as a fathers c●stody is the childs custody , and equivalent to delivery , and unless the writ had contained a clause to be valide without delivery , which this doth not . the pursuer answered , that this assignation reserveth expresly the defuncts liferent , and a power to dispose thereof , during his life , which sheweth his mind , not to deliver the assignation , even when he made it ; otherwise the reservation in his own favour , would not have been in his own hand , which sufficiently shews his mind , that the writ should be valide , though not delivered in his life . . this being a moveable sum , this assignation is in effect d●natio mortis causa , and so must be valide , without delivery , for a testament or legacy is valide without delivery . it was answered to the first alleadgance , that the defunct might have delivered the assignation , and keeped the bond ; so that the keeping of the assignation was not necessary , and so did not import his meaning to be , that the assignation should be valide without delivery . to the second , this assignation is in the terms and nature of a proper assignation , and is a right inter vivos , and not donatio mor● is c●usa ; because donatio mortis causa , is but as a legacy , affecting only the deads part : but if this assignation had been delivered , it would have affected all , and so could be no donatio mortis causa , and albeit it was not delivered , it remains the same kind of right . the lords rep●lled the defenses , and decerned delivery in regard of the tenor of the assignation , and that it was a moveable sum , it being also info●med that the defunct had no children , and the said agnes hadden , who was to have . merks of the sum , was cousin-german to the defunct . relict of galrigs contra wallace of galrigs . eodem die . the relict of galrigs pursues for mails and duties upon her seasine , given propriis manibus . it was alleadged for galrigs no process , because the seasine is but assertio notarij , without a warrand , there being neither a contract nor obligation to give such a seasine . it was answered , that instruments of seasine given to a wife , p●opr●is manibus , have a sufficient adminicle , and presumption by the marriage , and the duty of the husband to provide the wife , especially where there is no contract , nor other provision ; but most of all where the wife renunced her joynture she had with a former husband in favours of the granter of the seasine , and his creditors , which is a strong presumption , he would give her something in lieu thereof . which the lords sustained . steuart of torrence contra feuars of ernock . iune . . james steuart , as donator to the ward of the laird of ernock , by the lord semple of whom ernock held the lands ward : pursues the possessors for removing , who alleadged absolvitor , because they brooked their lands by feues , granted by the laird of ernock . the pursuer answered , non relevat , unless the feues were consented to , or confirmed by the superiour ; for by the feudal law , no deed of the vassal can prejudge the superiour , when the lands are ward . the defenders alleadged , their feues needed no confirmation , because they are warranted by law , by the d . act k. iam. . which stood valide until the act of parliament . prohibiting feues granted but by immediat vassals of the king , ita est , the first act cannot extend to the kings sub-vassals , because it bears only free-holders , and bears that the king shall accept of the feu duty , during the ward : but the ward of his sub-vassals would never fall in the kings hand : and this meaning of the act of parliament is evident by the act of parliament . bearing expresly , that there was no warrand by the first act for any feues , but such as were granted by the kings immediat vassals . it was answered for the defenders , that they oppone the first act of parliament , bearing expresly a general reason of granting feues , for the policy of the kingdom , and that the king would give example to the rest ; and that the act no wayes restricteth to free-holders of the king , but others who hold of subjects ward , are called free-holders , in opposition to feues ; which is also cleared by the . act parliament . the title whereof bears , ( a power to all persons spiritual and temporal , to set their ward lands feu , ) which clears the meaning of the parliament , and the common custom till the year . which is acknowledged in the narrative of the act . which doth only annul feues set to sub-vassals , in time thereafter : and as to the narrative thereof , the statutory part , and not the narratives of the acts of parliament , which the parliament doth not much notice , are our rules ; and this narrative is contradicted by the narrative of the act of parliament . bearing that there is no reason why the kings immediat vassals should grant feues more then sub-vassals . the lords sustained the feues , being granted before the act of parliament . andrew gray contra howison and gray . eodem die . andrew gray being infe●t as heir to his grandsire , in certain lands of the barony of foules , holden blensh of the house of gray : pursues a reduction of a late infeftment in anno . granted to walter watson , as long posterior to his right . compearance is made for william gray of haystoun , as being infeft by the lord gray , and sir george kinnard , who was donator to the recognition of the estate of gray , by the alienation of this lords father ; which recognition hath been declared by the lords , and alleadged that he hath the only right ; because by the recognition , the old rights of the house of gray being void , the pursuers subaltern right fell in consequence therewith . the pursuer answered , that before the defenders right , he had obtained a precept of clarè constat , acknowledging his old right , whereupon he was infeft . it was answered , that the precept doth bear expreslly , to be in obedience of precepts out of the chancellary upon the pursuers retour , and so being a necessar act , and not voluntar , it could be no acknowledgement , or ratification of the pursuers right . the lords having considered the precept , that albeit it mentioned the retour in obedience to the precept : yet it bore also , & quoniam mihi clare constat , &c. in the common strain of a precept of clarè constat , acknowledging the pursuers predecessors right and his own. they found that it did exclude the donator , and all having right from him thereafter , and after the seasine past thereon . george heriot contra town of edinburgh . iune . . george heriots father being infeft in an annualrent , out of certain tenements in the canongate , obtained himself to be served heir in special therein , before the baillies of the canongate , and because the samine is within a regality , having a proper chappel , and was not to be retoured to the kings chancellary ; so that precepts were not to be had out of the chancellary , against the town of edinburgh , superiours , to charge them to infeft him ; therefore george upon supplication , obtained letters from the lords to charge them ; and they being now charged , he pursues a poinding of the ground . it was alleadged for the town , no process for poinding of the ground , till the pursuer were infeft in the annualrent . it was answered , that he having done diligence against the town , it was equivalent , and did exclude them from proponing that alleadgance . it was answered , that no personal objection against the town , could be a sufficient title against this action without a real right . the lords found no process till infeftment , but declared that so soon as the magistrates should be denunced , they would grant warrand to the director of the chancellary to issue a precept for infefting the pursuer , for supplying the place of the magistrates , and their contumacy . black contra scot. eodem die . alexander black having obtained a decreet before the commissar of st. andrews , against iames scot , for . pounds ; pursues a transferrence thereof , against the representatives of iames scot , who alleadged absolvitor , because the decreet is ipso jure , null , being given by a commissar , in a matter not consistorial far above the quantity allowed by the injunctions , and there being nothing to instruct but the defenders being holden as confest , the decreet at least must be turned to a libel , and yet proven . . if the defunct had been obliged to have compeared , he would not only have denyed the receipt of the vinegar and grapes libelled , but he would have offered to prove , and the defender offers yet to prove , that they were refused , and lay publickly upon the shore where they were disloaded . . it was offered to be proven , the defunct was lying on death-bed , the time he was cited to depone , and was holden as confest . the pursuer answered , that albeit these reasons were relevant to repone a party holden as confest to their oath , yet were not sufficient to annual the decreet , seing the pursuer lost his probation , the receipt of the goods having been two years agoe ; and albeit this sum exceeded the commissars injunctions ; yet the violation thereof does not annual his sentence , or take away his power , unlesse the samine had been objected upon compearance . the lords found not the defenses relevant to annul the decreet , or to hazard the loss of the pursuers probation : but seing the defender burdened himself with a contrair probation , the lords inclined to admit the same , if it were sufficiently pregnant ; and therefore ordained the pursuer before answer , to adduce witnesses , that the goods were never taken off the shore , but boated there . inglis contra laird balfour . eodem die . there being an un-printed act of parliament , for uplifting the taxt and loan of the shire of fife , for relief of some noblemen ingaged for the shire in anno . the council did thereafter give commission to certain persons in the shire , to conveen the persons resting , and accordingly cited the laird of balfour , and he not compearing , ordered quartering against him : he suspends on this reason , that this being a privat and particular act of parliament , to which he was not called , is salvo jure , and could not burden his lands of creik , because he is singular successor therein to the laird of creik . it was answered , that there is no exception of singular successors in the act of parliament ▪ so that this act being a reviving of the old rescinded act , pro tan●o , it must be in the same case as taxation and maintenance , which is ever accounted debitum fundi . it was answered , that these burdens imposed by the rescinded parliaments , are not in the same case with other publick burdens , especially where it is but a particular act , relating to particular persons and shires , without citation of them , for if they had known of this act , they would have petitioned the parliament , that singular successors might have been excepted , as they were in other acts of this nature . the lords suspended the decreet , and found that as they were singular successors they were not lyable . david dick contra ker. iune . . david dick as donator to the escheat of ker , insists in a special declarator , for payment of a sum due to the rebel . the defender alleadged absolvitor , because it being a bond , bearing annualrent , it fell not under the single escheat . it was replyed , that bonds bearing annualrent , are still holden moveable , until the first term of payment of annualrent , and is disposeable by testament , if the defunct die before that term : but here the rebellion was before the date of the bond , and so the sum fell to the fisk , the day it was subscribed . it was answered , that the . act , parliament . declares bonds bearing annualrent , to exclude the fisk , without any exception or limitation . the lords having considered the act , found that it left bonds bearing annualrent , in the same case that they were formerly ; and found that before the term of payment of annualrent , they were moveable . peterson contra captain anderson . iune . . captain anderson having taken a ship , whereof peter peterson was master , and obtained the same declared prize by the admiral , upon two grounds ; one that the ship was sailed , a great part of the company being hollanders , then the kings enemies : the other , that albeit it was pretended that the ship belonged to swedes , yet by several presumptions and evidences , it appeared , that is was but a conveyance , and that the ship truely belonged to hollanders : there is now a reduction raised of the decreet , and the first ground thereupon debated and decided . it was alleadged for the strangers , that they being swedes , their case was only to be ruled by the treaty betwixt the king and the crown of sweden , by which it is expresly provided , that the subjects of sweden having such passes , as are exprest in the articles , shall not be seased , or brought up , and particularly in bona & homines nullo modo inquir●tur , viz. where such a pass is found aboard , and the said pass being here found aboard , the ship was unwarrantably seased , and unwarrantably declared prize , upon pretence of being sailed with hollanders ; because that article takes away all question about the men , and so gives liberty to the swedes , to make use of any mariners they please . it was answered , that the reason of adjudication was most just ; and this reason of reduction ought to be repelled , because the kings proclamation , denuncing the war , gives express warrand to sease all such ships as had any number of hollanders therein , which must stand as the rule , unless the swedes had by their treaty , a particular exception , derogating from that rule , which they have not : but on the contrary , the treaty contains an express provision , that they may make use of a hollands master , and not unless he became a citizen of some city of sweden , and be sworn burgess thereof : but upon the former ground , there needed no such article for masters , and all might thereby be hollanders . and as to the article of the treaty , concerning no further inquiry , there is subjoyned , quod si gravis aliqua suspitio subsit ; in which case , notwithstanding of the pass , seasure might be made ; but here there was gravis suspitio , that the ship or goods belonged to the hollanders , the master , and major part of the company being hollanders , and the pass mentioning a ship of an hundred tuns , whereas this ship was two hundreth tuns . it was answered for the strangers , that the kings proclamation could be no rule to the subjects of any other free prince ; but the law of nations , or their own treaties , behoved to be the rule : and by the law of nations , the king could not hinder his allies of any commerce , or trade with his enemies , which they were accustomed , or free to do before the war , except such acts only , wherein they partaked with his enemies , by furnishing provisions of war , or counterband goods ; and so the king by no proclamation , could hinder the swedes to hire and make use of hollanders , which rather weakned , then strengthned his enemies : and in this case , the making use of hollanders was necessar , because other sailers could not be had , when the ship was bought ; and that article of the proclamation ought to be benignly interpret , that when any ship carries hollenders as passengers , the same should be seased , but not when these were servants and mariners to other nations . it was answered for the captain , that the kings proclamation of the war , behoved to be a rule to the kings judges , and that it was most consonant to the law of nations , and it was impossible without the same , to know what ships did truly belong to allies ; and that in the spanish treaty with the king , that priviledge was specially indulged to the flandrians , not to be quarrelled upon the account of hollanders , because of the identity of their language , which would have been unnecessar , if by the law of nations , all might have so done . the lords repelled the reason of the reduction , and found that ground of the adjudication , that the ship was sailed , with a great part of the company being hollanders , relevant alone , and that the same was sufficiently proven by the testimony of the steirsman , and another witness of the company , and therefore assoilzied from the reduction . the minister of elgin contra his parochioners . eodem die . the minister of elgin pursues his parochioners for the viccarage of some yeards in elgin , which belonged of old to the canons of the cathedral kirk of elgin , and were by them feued to the defenders , who alleadged absolvitor ; because the yeards being a part of the canons portions , and in effect their gleibs had in no time past , ever payed viccarage , which is consuetudinar , and local , both as to the payment , and the kinds ; for in some places , teind lint , and hens are payed , and in others not : but the ordinar viccarage being stirks , wool , milk and lamb , there is none of these to be had in these yeards . it was answered , that no prescription could take away teinds , upon the forbearance of demanding it by beneficed persons , who are but administrators , and cannot delapidat ; otherwise all benefices might be destroyed . ly , lands that have been always ploughed , and so payed parsonage , and becoming grass , are lyable to viccarage , albeit it cannot be proven , that ever they payed any before . the lords found the defense relevant , unless the pursuer could prove that viccarage has been payed out of these , or out of any other the canons portions of this kirk . george shein contra iames christie . eodem die . g christison of bassallie , gave an infeftment to his eldest son , of the lands of bassallie , and to his second son , of an annualrent of . merks forth thereof , both of one date , and both reserving the fathers liferent . iames christie hath right by appryzing , led against the eldest son , in his fathers life , to the lands . george shein hath right by adjudication , against the second son , to the annualrent , and pursues a poinding of the ground . it was alleadged for iames christie , that sheins authors right was base , never cled with possession , and so null ; whereas his right was publick by an appryzing , and had attained to possession . it was answered , that the fathers liferent being reserved , the fathers possession was both the sons possession , and did validat both their rights . it was answered , that a disposition by a father to his own children , reserving his own liferent , though infeftment follow , is alwayes accounted simulat , and never accounted cled with possession , by the fathers possession , as hath been frequently decided . it was answered● that albeit in competition betwixt base infe●tments , granted to children , and infeftments granted to strangers upon onerous causes ; the childrens infeftment , though prior , and though reserving the fathers liferent , uses to be preferred ; yet here that holds not , for both infeftments are granted to children , both of one date , and neither of them to strangers , or upon onerous causes ; and therefore the reservation here is without suspition of simulation , and the fathers possession must both validat the second sons annualrent● and the eldest sons property . which the lords found relevant , and that the fathers possession by this reservation , did sufficiently validat both the sons infeftments ; and that the possession of one after his death , or of any succeeding in his right , did not exclude the other , or his singular successor . mr. robert burnet contra swane . eodem die . mr. robert burnet tutor of l●yes pursues for mails and duties of a tenement in aberdene . it was alleadged for swane the defender , absolvitor , because he stands infeft in the lands ; and by vertue of his infeftment , in possession ; and albeit the pursuers infeftment be prior , it is null , neither being registrat in the register of seasins , nor in the town clerks books of aberdene , according to the custom of all burghs , but hath been latent many years , and no vestige of it in the town books ; so that the defender was in bona fide , to contract with the common authour , and apprize thereafter . it was answered , that the act of parliament excepted seasins within burgh ; and the pursuer having the town clerks subscription was not answerable for his keeping a prothecal , or record . which the lords found relevant , and sustained the seasine . colquhoun and mcquair contra stuart of barscub . iuly . . the laird of barscub having seued certain lands to colquhoun and mcquair , to be holden of himself , in the contract of alienation , there is a special clause , that because the lands are holden ward of the duke of lenox ; therefore barscub is obliged to relieve these feues of any ward that shall fall in time coming : thereafter barscub dispones the superiority of these lands , and by the death of his singular successor , his heir falls in ward , whereupon sentence was obtained against the feuars for the ward duties , and the avail of the marriage , and they now pursue relief against barscubs heir , upon the clause of warrandice above-written . the defender alleadged , that the libel was no ways relevant , to infer warrandice against him , upon the said clause ; because the meaning thereof can only be , that he as superiour , and so long as he remained superiour , shall relieve the feuars , which ceases , he being now denuded of the superiority ; otherwise it behoved to have imported , that he should never sell the superiority , without the vassals consent , which no law doth require : or if the lands had been appryzed from him , he could not be lyable for the ward of the appryzers heir , which is cleared by the ordinary custom , there being nothing more frequent in charters , than clauses of absolute warrandice ; and yet none was ever overtaken thereby , after they ceased to be superiours . the pursuer answered , that his libel was most relevant ; because this being an obligement , conceived in their favours by barscub , not qualified as superiour , no deed of barscubs , without their consent , can take it from them , unless barscub , when he sold the superiority , had taken the new superiour obliged , to receive the vassals with the same warrandice ; but now the new superiour , not being obliged by this personal clause , barscub the old superiour , must remain obliged , especially in a clause of this nature , which is express for all wards to come . the lords repelled the defense , and sustained the libel , and found the superiour ( albeit denuded ) lyable for warrandice . thomas rue-contra andrew houstoun . iuly . . andrew houstoun and adam mushet , being tacksmen of the excize , did imploy thomas rue to be their collector , and gave him a sallary of . pound sterling for a year , thereafter he pursued andrew houstoun upon his promise , to give him the like sallary for the next year , and in absence obtained him to be holden as confest and decerned : which being suspended , he obtained protestation , and therefore raised caption , and apprehended andrew houstoun at wigtoun , who gave him a bond of . merks , and got a discharge , and being charged upon the bond of . merks , he suspends on these reasons , that thomas rue had granted a general discharge to adam mush●t , who was his conjunct , and co●reus de●endi , af●er the alleadged service which discharged mush●t , and consequently houstoun his partner . dly , the decreet was for sallary , and it was offered to be proven , that rue ( for his malversation ) was by warrand from ceneral monk , excluded from collection that year , and by the discharge of the decreet , and this bond , both of the same date and vvitnesses , it did appear that this bond was granted for the decreet , and if the decreet were reduced , by the reduction thereof depending , the bond would fall in consequence , as granted for the same cause . the charger answered , that he was now not obliged to dispute , in relation to the decreet . first , because the suspender had homologat the same , by taking a discharge thereof , and giving a bond therefore . dly , there was not only a homologation , but a transaction upon a reference , made by the parties to ●aldone , conform to his attestation produced ; so that that transaction cannot be recalled upon any pretence , but is the most firm , and obligatory contract of any . the suspender answered , that his payment making and taking discharge , was no approbation , nor homologation , but that he might reduce the decreet , and repeat if he had payed , or been poynded , and so may retain ; especially seing it was done metu carce●is , he being taken with caption : and as to the transaction , he denies the same ; neither can it be instructed by baldones attestation , but by the suspenders o●th or vvrit . the lords f●und that the granting of the bond was no h●mologation of the decreet , but that ●e might quarrel the same ; and that the giving of the bond was no transaction , if he payed or gave bond for the whole sums contained in the decreet : but found that ●f in consideration of the grounds upon which he might quarrel the same , he had g●●●en an abatement by arbitration , or otherwise that he could not quarrel the same , and found it only probable by his oath , or ●●rit . iames donaldson contra harrower . eodem die . james donaldson pursues iohn harrower as representing his father , for whom the pursuer became cautioner to the lord rollo for . pound , for relief of the defuncts goods that were then a poinding ; for which the defunct promised payment , and did pay the lord rollo , and produces a testificat of the lord rollo's thereof , and craves payment , and offers to prove the libel by vvitnesses , the libel not being above an hundred pound . it was alleadged for the defender , that this being a cautionry , and a promise it was not probable by vvitnesses , especially after so long a time , the promiser being dead , who might either qualifie the promise , or instruct payment , there being nothing more ordinar , then to transact such affairs without any vvrit . the lords found the libel not probable by witnesses . frazer contra frazer . eodem die . john frazer having obtained a decreet against william frazer his brother , to deliver a tack of the lands of boghead , granted to their father and his heirs , to whom the said iohn is heir . william suspends on this reason , that he is heir to his father of the second marriage , and produces his retour , and produces the contract of marriage , including a clause , that all tacks conquest during the marriage , should belong to the heirs of the marriage ; and this tack being acquired during the marriage , the same belongs to him : and albeit it he conceived to the heirs generally ; yet by the contract , the pursuer as heir general , will be oblieged to assign . it was answered , that this tack was no new conquest , but had been the old possession of the father , and the tack bare the lands to be presently possest by him . the lords found this tack to fall under the clause of conquest , unless the pursuer prove that there was an old tack standing , which expyred not till the second marriage was dissolved , in lieu whereof , this new tack was taken . hamiltoun contra callender . iuly . . james hamiltoun having taken his debitor with caption , offered him to iames callender baillie of falkirk , to be incarcerat in the tolbooth of falkirk , and he refusing , he now pursues a subsidiary action against the baillie , for payment of the debt ; who alleadged absolvitor , because he is no magistrate of a burgh royal , but of a burgh of regality , the baillies whereof were never in custom to be charged with rebels . the pursuer opponed the act of parliament . cap. . bearing expresly ▪ baillies of stewartries and regalities , according to which , the tenor of all captions , bears the letters to be direct against all baillies of regalities . the defender answered , that for the letters , it is but stylus curiae ; and for the act of parliament , the narrative and reason thereof relates only to burghs having provest , baillies and common good. the lords having considered the act of parliament , repelled the defense and decerned here the rebel was residenter within the burgh of regality , where there was known to be a convenient prison . relict of william pattoun contra relict of archibald pattoun . eodem die . the relict and executors of william pattoun , pursues the relict and executors of archibald pattoun , for compt and reckoning of sums and goods belonging to the said umquhil william pattoun by archibald , and craves the defender to produce archi●alds compt books , who alleadgen nemo tenetur edere instrumenta sua contra se ad fundandam ●item ; so that the desire was no wayes reasonable , unless the pursuer had given in a particular charge , and litiscontestation had been made thereon ; in which case , the defender might have been compelled , ad modum probationis , to have produced the books . it was answered , the contrair was found in the compt and reckoning betwixt the children of george sui●ty against the representatives of william suitty their tutor , and that there was as great reason here , the two defuncts having been brothers , and being in copartnery together , and the one factor for the other . it was answered , that the case of a tutor and his pupil was no way alike , because the tutors compt book was in effect the pupils , and the copartinery , and factory was denyed . the lords ordained the book to be put in the hands of the auditor , and if he found by inspection thereof , any accompts appeared as betwixt partners and factors , he should produce the same to the other party , even ad fundandam litem , otherwise that the same should be given back , and not showen to the pursuer . margaret alexander contra laird of clackmannan . iuly . . margaret alexander being infeft in an annualrent out of the lands of sauchie , by a posterior infeftment , in corroboration of the former right , she was infeft in that same annualrent , out of other lands , whereof she was in possession ; but this posterior infeftment being reduced upon an inhibition prior thereto ; she pursues poinding of the ground , of the lands of sauchie , upon the first infeftment . it was alleadged for clackmannan absolvitor , because the pursuers right of annualrent is base , never cled with possession , and now he is infeft in the lands , either publickly , or by another infeftment cled with possession . the pursuer answered , that the infeftment in the lands of sauchie was sufficiently cled with possession , in so far as the posterior infeftment of annualrent in corroboration thereof was cled with possession , and as payment made by the heretor , by himself for his tennents , or by assignation to mails and duties of other lands in satisfaction of the annualrent infers possession ; so payment made by his tennents , by the posterior infeftment in corroboration , can be no worse then an assignation to the mails and duties of these lands ; which as it payes some terms annualrent of the first infeftment , so it must cloath it sufficiently with possession . it was answered , that here being two distinct infeftments at several times , albeit for the annualrent of the same sum , yet the possession of the last cannot relate to the first . the lord repelled the defense in respect of the reply , and found that possession by the last infeftment , did from that time sufficiently validat the first . heugh boog contra robert davidson . eodem die . heugh boog having arrested robert davidsons fee , as keeper of herlots hospital , pursues the town of edinburgh to make it forthcoming . it was alleadged for robert davidson absolvitor , because robert davidson had made cessionem bonorum , in favours of this pursuer and his other creditors , and thereupon was assoilzied . the pursuer answered , that a honorum did no wayes secure contra acquirenda , unless the assignation or disposition had been equivalent to the debt , and satisfied it . the defender answered , that that which was here acquired , was only a fee for service , which is alimentar , and the fee will not be due , unless the defender serve in suitable condition , effeirand to his place ; and therefore it cannot be made forth coming to any other use . the lords found that a fee in so far as was necessar for the servants aliment conform to his condition of service , could not be reached by his creditors to whom he had made cessionem bonorum , except as to the superplus , more then what was necessar , and they found no superplus in this case . captain allan contra parkman . eodem die . captain allan having taken bartholomew parkman , and obtained him to be declared prize . parkman raises reduction , and for fortification of the admirals decreet of adjudication , these grounds were alleadged : first , that by the testimonies of the steirsman and company , it was proven that three of the company were the kings enemies ; and so conform to the kings declaration of war , ordaining all ships to be seazed wherein there were any number of men belonging to the kings enemies : this ship was prize , as was lately found in the case of the ship called , the castle of riga . and albeit by a former interloquitor , the lords had not found three men to be a number sufficient for confiscation : yet it was not then considered ; that the whole company consisted but of eight ; so that near the third of the sailers were the kings enemies , and one of them the steirsman , which is a considerable proportion . dly , this ship though pretended to belong to the swedes , yet she had served the kings enemies , the danes and hollanders , two years ▪ and by the swedish treaty it is provided , quod naves nullo modo accommodentur utriusque foederati inimicis . dly . it is also proven , that this ship carried counterband-goods , viz. tar , which was not the product of sweden , but carried from denmark to holland , and that she was taken in her return , having in a loadning of salt from france ; so that albeit the ship had been empty , she might have been taken prize in that same voyage , in which she did partake with the kings enemies : or being taken in the same voyage , in which she had carried bona hostium . and lastly , it was also instructed , that the cargo with which she was taken , was the product of the counterband-goods , and so in the same case as if the counterband-goods had been actually in her , the product being surrogatum quod sapit naturam surrogati . it was answered for parkman , to the first ground , that he opponed the lords interlocutor , finding three sailers no sufficient number for confiscation . and in the case of the castle of riga , the major part , at least the half were the kings enemies . to the second ground it was answered , that the kings allies making use of their ships for fraught , was no way a lending of them to the kings enemies ; and as for the remnant goods , by the kings declaration of war , there is only given warrand to sease ships , having in them counterband-goods , or enemies goods ; and the swedish ●rety bears expresly si deprehenduntur ; so that this ship having in her when she was taken , no counterband nor enemies goods , is free . it was answered , that the kings declaration , although it mention some cases of seasure , is not full or exclusive , but the law of nations must take place , or the custom of scotland , in cases not exprest in the kings declaration . and as for the swedish treaty , it cannot be pleaded , unless parkman had a pass from sweden , in all points conform to the treaty : but their passes were in several things disconform , as being granted when the ship was in holland , and sent over land. and as for the custom of scotland , to take ships in the return of that voyage , in which they carried counterband , or prohibited goods ; it appeareth by the captains commission , and former commissions in anno . and by a decreet declaring a prize , wherein the same ground was libelled , that she was taken in the return of that same voyage , in which she had carried counterband . and the lords having written to my lord secretary , his letter in return , bears , that the lords should decide according to the law of scotland . it was answered for the stranger , that the particular custom of scotland can be no rule for the swedes ; but only the law and custom of nations ● and that england , nor no other nation hath that custom , to make seasure , but in delicto , otherwise all trade and commerce would be destroyed , unless seasure were only upon what were visibly aboard , and not upon the pretence of what had been aboard : and albeit a delinquence once committed by partaking with the kings enemies , might endure for a longer time : yet the custom of nations , for the utility of trade , hath abridged it to actual seasure , in delicto , and accordingly judge ienkins , judge of the admirality in england , hath attested , that during this war , after search of the records , and conference with other judges , he knows not of any prize declared , but when the counterband goods , or enemies goods were taken actually in them . and for the decreet alleadged on , albeit that ground be in the libel ; yet other grounds are also therein , and there is no debate as to that particular point ; neither doth the probation mentioned in the decreet clear , that that point was proven . and as to the tenor of the commissions , albeit they might excuse the captain from fine , or damnages ; yet strangers did not , nor were not obliged to know the same : but the law and custom of nations , and the kings publick declaration of the war , and their treaties . the lords having considered the debate , and that the several points were of importance and preparatives , they resolved to take the grounds joyntly , and so found the ship prize , as having so considerable a proportion of her company the kings enemies . some also were of the opinion , that she having been taken in the return was sufficient , especially not having a sufficient swedish pass● but the plurality wa●ed these points , whether the returns of enemies goods , or counterband , or whether the product , or not product thereof were sufficient grounds of seasure , seing it did not so appear by the custom of nations , or the kings declaration of war : but by the former debate it appeared , that she had aboard when taken , a small parcel of tar. mr. david falconer contra sir iames keith . iuly . . mr. david falconer gave in a complaint against sir iames keith of caddam , that he being in the exercise of his office , informing the president to stop a bill of suspension , given in by sir iames keith : sir iames did revile and threaten him , calling him a liar and a knave , and saying if he found him in another place , he would make him repent what he said . the lords having received witnesses in their own presence , and finding it proven , sent sir james to the tolbooth , there to remain during their pleasure , and fined him in . merks . earl of wintoun contra gordoun of letterfary . iuly . . the earl of wintoun having appryzed certain lands in the north pursues for mails and duties . it was alleadged for gordoun of letterfary , that he stands infeft in these lands ; and by vertue of that infeftment , is seven years in possession , and thereby has the benefit of a possessory judgement , and must enjoy the mails and duties till his right be reduced . the pursuer answered , that he had intented process upon his right for mails and duties , anno . whereby the matter became litigious , and which stops the course of any possessory judgement , till that citation expyre , by the course of . years , in the same way as it is in removings or ejections : where summons once intented , does not prescribe by three years thereafter , but lasts for . years . the defender answered , that the case is not alike ; for the benefit of a poss●ssory judgement is introduced for the security of persons infeft , that they be not summarly put to dispute their authors rights which are oftimes not in their hands , but in the hands of their authors , or superiours ; and there was never any reply sustained against the same , unless it were vitious or violent , or interrupted : but here the last seven years possession , after that citation , is neither interrupted , nor vitious ; and these being no stop to take away the effect of that citation : it were of bad consequence , if persons infeft . years after a citation , behoved summarly to dispute their rights . the lords sustained the defense of the possessory judgement , upon seven years peaceable possession , before the citation , and repelled the reply . the pursuer further replyed , that in the seven years after the citation , there were some years wherein there was a surcease of justice , and no courts in scotland . dly , the citation was by his tutors and curators , and he was minor during the seven years . it was answered , that a possessory judgement was competent against minors , and there was no respect of minority therein , which is only excepted in the great prescription , extinguishing the right ; but in the possessory judgement in relation to the way of process , and the fruits in the mean time , as in all prescriptions , tempus contin●um , and not tempus utile , is respected . the lords also repelled both these replyes , and notwithstanding thereof sustained the exception on the possessory iudgement . sir william steuart contra murrays . iuly . . sir iames murray , his estate being appryzed by many of his creditors ; sir william steuart , one of the appryzers , pursues the rest for compt and reckoning of a proportionable part of the rents , in respect that his appryzing is within a year of the first effectual appryzing , and comes in therewith pari passu , by the late act of parliament , betwixt d●bitor and creditor . it was alleadged absolvitor : first , because the pursuers appryzing is incompleat , nothing having followed thereupon now these . or . years ; and by the act of the late parliament , anent the registration of the allowance of appryzings , that is declared to be a necessar solemnity for all appryzings led since iune . and this appryzing is not yet allowed . it was answered , that by the late act of parliament , the certification of the want of allowance is not , that the appryzing shall be null ; but that posterior appryzings first allowed , shall be preferred : but the act betwixt debitor and creditor , brings in appryzings together , deduced within a year , according to their dates , without mention of allowance , and is posterior to the said other act , and cannot be derogat from thereby ; nor does the act require infeftment , or any thing else , but takes away the preference of appryzings by the former act , as to such as are led within a year . the lords repelled this defense , and ordained the pursuer now to allow his appryzing , which they found sufficient . the defenders further alleadged absolvitor , because the pursuer had accepted a disposition from sir iames murray , the common debitor of a tenement in edinburgh , bearing expresly , in satisfaction of his debt , which is now produced by himself . the pursuer answered ; first , that he was excluded from the benefit of that disposition by eviction , by the earl of panmure , who appryzed before he was infeft . dly . that whatever it bear , it was but truely granted for security ; for there is produced an assignation by sir iames , of certain sums to the pursuer , for the same debt , which could never have been , if the first had been made in satisfaction . the defenders opponed the disposition , bearing expresly in satisfaction , the benefite whereof accrescing to them , upon the pursuers receiving the disposition , cannot be taken from them by any posterior writ of the common debitor ; nor are they obliged to dispute , whether it was valid or effectual , seing it was accepted , and the eviction doth not annul the acceptance , but giveth place to the clause of warrandice , contained in the disposition , which is personal , and reacheth only the common debitor , and not the defenders : dly , it was the pursuers own fault that he was excluded , in not infefting himself upon his disposition , which he received before panmuire's appryzing . it was answered , that he could not compel the superiour to receive him , and that the baillies of edinburgh required bygone sess , and feu-duties to be payed before he were infeft , which he was not obliged to pay , seing by the disposition he was to be free of all incumberances . it was answered , that the baillies of edinburgh refuse no body , as is known , and these incumberances were but to be purged by a personal obligement of the common debitors , neither did the pursuer ever give back the disposition . the lords sustained this defense , and found the receiving , and retaining the disposition in satisfaction , sufficient to exclude the pursuer . it was further alleadged for patrick murray of deuchar , that he has right to the lands of deuchar not only by appryzing , but by a voluntar disposition , whereupon he was infeft before the pursuers appryzing , and hath been by vertue thereof in peaceable possession these . years , and so hath the benefit of a possessory judgement , and a prior more valide right . it was answered that this voluntar disposition was granted after the denunciation of the pursuers appryzing ; after which , the common debitor could not prefer any other creditor by his voluntar deed ; and so the denunciation making the matter litigious , any posterior possession is vitious , and cannot give the benefit of a possessory judgement ; neither is the disposition being after the denunciation a valide right ; but especially it being considered , that the act of parliament brings in this pursuer with the other prior appryzers , as if they had been in one appryzing , and several of the other appryzings are led , and infeftment thereon before the disposition . the lords sustained this defense , and found that the denunciation did not take away the benefite of a posterior possessory iudgement . lord dumfreis contra smart . iuly . . . the laird of wamphray , being due a yearly annuity to his good-mother , the lady wamphray , which now belongs to the laird of castlemaines her husband , jure mariti , there is a competition thereanent , betwixt . factor to the earl of dumfress , whose name was used in the gift to dumfreis behove , as donator to the escheat of castlemaines , and smart as having appryzed from castlemaines the right to this liferent , jure mariti , who alleadged that he ought to be preferred to the donator ; because albeit his appryzing was after the rebellion , yet it was upon a debt anterior to the rebellion , and was long before the donators gift ; and therefore according to the known custom , diligences of creditors being before the gift , or declarator , are alwayes preferred to the donators of single escheat . it was answered for the donator , that that custom was never further extended then to moveables , or moveable sums poynded , or made forthcoming upon arrestments , but never to rights having tractum futuri temporis , which cannot be carried by poynding or arrestment , but by appryzing or adjudication , as tacks or liferents , when assigned , so that the jus mariti being a legal assignation , and thereby falling under the husbands single escheat , falls to the king and donator by the rebellion , and cannot be taken away by an appryzing , pesterior to the rebellion . which the lords found relevant , and preferred the donator . mr. george iohnstoun contra parichloners of hodony . eodom die . mr. george iohnstoun having right to a tack set by the parson of hodony ▪ for his lifetime and three years thereafter , and having used inhibition , pursues the possessors of the lands , who alleadged absolvitor , because the tack is null , being set for more nor three years , without consent of the patron , by the act of parliament . it was answered that the pursuer restricts his tack to three years . the defender opponed the act of parliament , declaring such tacks simply null , as were set for more then three year . the lords sustained the tack for three years , as allowed by the act of parliament . r●bert thomson contra earl of glencairn . iuly . . robert thomson having pursued the earl of glencairn for a compt of wright work , wherein he was imployed by the late earl for his lodging and yeards , when he dwelt in my lord oxfoords house . it was alleadged for the earl , that the imployment being a direction , was only probable scripto vel juramento . the lords before answer , having ordained witnesses to be examined , and their testimonies being clear and pregnant , that the late earl did imploy the pursuer in this work , and called for him frequently , and ordered the work from time to time ; they sustained the witnesses in the probation , and found it prove● . it did not appear that this pursuer was within three years of the work , but the defender did not insist in any defense thereupon . patoun contra patoun . eodem die . patoun in his son● contract of marriage , dispones to him his estate , and the tocher was payable to the father ; after the contract , and before the marriage the father takes a bond of . merks from his son , the wife and her brother pursues a reduction of this bond as fraudulent , & contra bonos more 's & contra pacta dotalia . it was alleadged for the father , that he might very lawfully take a bond from his son , for provision of his children after the contract , and before the marriage , having infeft his son in his whole estate , which was worth . merks yearly , and getting but . merks of tocher , and having some debt and many children . it was answered , that the estate was not worth . merks of rent , and the fathers liferent of . merks reserved , so that the annualrent of this bond would exhaust the remainder , and they would have nothing to live upon . the lords having considered the contract and alleadgances , thought that it was not sufficient to annul the bond , that it was after the contract , and before the marriage , if there was any reasonable cause . therefore , and before answer ordained the commuuers at the marriage to be examined , whether it was communed and agreed , that the tocher should be accepted for f●tisfaction of the debt and bairns portions , and they having deponed affirmative . the lords reduced the bond as contrair to the communing at the contract of marriage , the estate being very mean. sir iohn weems contra campbel of ednample . eodem die . sir iohn weems having charged ednample for maintainance due in anno . he suspends on this reason , that upon consideration of the burning of his house in the time of the troubles , he got an exemption and discharge from the king and parliament , anno . it was answered that that parliament was rescinded , and the charger had a commission to uplift all maintainance in anno . from the heretors , notwithstanding of any exemptions granted by these pretended parliaments , and their committees . the suspender answered , that the act rescissory has an express reservation of all privat rights , acquired by authority of these parliaments for the time ; and so this exoneration of his becoming his privat right , falls not by the act rescissory : and as to the act of parliament , and commission to the charger , it must be understood salvo jure , and cannot take away the suspenders anterior right acquired . which the lords found relevant , and suspended the letters , and found that the suspenders exoneration was not taken away , either by the act rescissory , or by the act and commission in favours of bogie . lord rentoun contra laird lamertoun . eodem die . the lord rentoun , justice clerk , having pursued lamertoun , as representing his father , for the pursuers rents and goods intrometted with by the defenders father in anno . the defender excepted upon the act of pacification in anno . and upon the act of indemnity in anno . and produced his fathers commission , by which he medled ; so that having done by publick authority for the time , in relation to the war , and differences of the time , he was secured by both these acts. the pursuer answered , that the act of pacification , and that whole parliament was rescinded , and the act of indemnity had an express exception of all that medled with publick monies of fines , forefaultors , or sequestrat estates , and had applyed the same to their own use , and had not duly counted therefore : and the pursuer insisted for what the defenders father had applyed to his own use , or had not duly counted for . the defender duplyed , that his father had duly counted for his whole intromission , and had made faith to the committee of estates particularly , that he had truly given up his charge without omission , and thereupon was discharged . the pursuer answered , that he had instructed much more intromission , and was content to allow the particulars in the compt produced , and craved the superplus , which he had now proven by witnesses adduced before answer : and as for the oath , it could only be understood as an oath of credulity , like that of executors confirming testaments , which doth not exclude probation of super-intromission : and there being two compts produced , the charge of the last compt is the rest of the former compt , and the oath relates only to the last compt. the lords repelled the defense upon the act of pacification , which they found was only unrescinded , in so far as it is contained in the late act of indemnity ; and repelled the defense upon the act of indemnity , in respect of the exception ; and found that the father had not counted duly for his whole intromission ; and that his oath extended only to the last compt : and having considered the testimonies of the witnesses , they made a difference betwixt what umquhil lamertoun applyed to his own use , and what corns and cattel were carried away by souldiers , by his direction to the army , that he might be free of the latter , and lyable for the former . iohnstoun of sheins contra isobel arnold , iuly . . iames arnold having granted a bond of provision to his daughter isobel , became afterwards debitor to iohnstoun of sheins , who appryzed arnold's estate , in anno . upon a debt of his own , and as assigney to another debt . thereafter isobel arnold on her bond of provision appryzes the same lands ; sheins conies in possession of the most part , and isobel in a small part , till they both acquire the benefit of a possessory judgement , whereupon there are mutual reductions ; sheins reason was , that his fathers appryzing was long prior to the defenders , and that the ground of the defenders appryzing , was only a bond of provision by a father to his daughter , which could never exclude the fathers creditors , especially if that debt was contracted before the bond of provision was granted , and while it remained in the fathers custody , and so in his power to be reduced at his pleasure . isobels reason of reduction was , that albeit shein's appryzing was prior , yet there was no infeftment thereon in shein's person , bearing to be on an assignation to the appryzing by shein's to collingtoun , but any infeftment produced is in collingtouns person , bearing to be on an assignation to the appryzing by sheins to collingtoun , which assignation is not produced , and so shein's infeftment , flowing from collingtoun is null , because collingtouns right , from umquhile shein's is wanting , which is the mid-cuppling . dly , shein's appryzing being on two sums , the one whereof was to the behove of a cautioner , who had payed the debt , and taken the assignation in shein's name to his own behove ; which cautioner being conjunct cautioner with iames arnold , the common author , and having a clause of relief , neither he , nor shein's intrusted by him , could justly or validly appryze arnold the cautioners lands for the whole sum , but behoved to deduce the other cautioners part , and so the appryzing is upon invalide grounds , and thereby is null , and albeit prior to isobel arnold's appryzing , yet she has the only valide appryzing . it was answered for shein's that the first reason was not competent to the pursuer , for it was jus tertij to her what progresse collingtoun had from umquhile shein's , seing she derives no right from him . dly , this collingtoun by his right granted to this shein's , acknowledges that aborigine the infeftment , in collingtoun his fathers person , was to shein's behove , which is a sufficient adminicle in place of the assignation ; and to the second reason , albeit it were instructed it could not annul the appryzing in totum , but restrict it to the sum truly due , especially seing that shein's was content to declare his appryzing redeemable by payment of the sums truly resting , within such times as the lords would appoint ; and albeit the lords are strict in the formalities of appryzings when they are expired , and carry the whole estate , though improportional , yet during the legal , they allow them in so far as they are due . the lords found isobel arnolds first reason competent , and relevant to her , unlesse collingtouns assignation were produced , or the tenor of it proven ; and found the second reason relevant , to restrict the appryzing to the sum truly due , in respect that shein's did of consent declare it , yet redeemable for the true sums . but they found shein's alleadgeance , that the ground of isobel arnolds appryzing was a bond of provision , posterior in date or delivery to shein's debt , relevant to prefer him as a conjunct creditor for his true debt , though the assignation should not be produced , a new one from collingtoun being sufficient . iohn boswel contra the town of kirkaldy , eodem die . iohn boswel having some aikers in the towns lands of kirkaldy , and some houses in the town , but not dwelling within the town , or paroch , nor using any trade therein : pursues the town as having unwarrantably stented him for his stock and trade , he not dwelling in their burgh . dly , for unequal stenting him as to his lands . dly , for stenting him for the towns debts , as for the sums payed for their erecting harbours , and some teinds they bought . thly , for stenting him for the second ministers stipend , whereas he payed the whole teind to the first minister , nor dwelt he in the paroch , nor consented to a second minister , or to his stipend , and for unwarrantable quartering on him , and his tennents , and this since the year . it was answered for the defenders , that they denyed stenting of the pursuer , for any stock or trade , seing he was no inhabitant ; or that they quartered on him unwarrantably , but alleadged there was now no ground after so long a time , to quarrel the inequality of their stent rolls , which were made by fifteen sworn men , especially after so long a time , for this preparative would be the foundation of a debate , at the instance of every burgess , against every town in scotland : neither could there be a clear rule , as in valuations , but behoved to proceed by the stenters conjecture , according to the common esteem of the means , and trade of every burgess ; so that unless the complaint were against the inhability of the stenters , in due time made , there could be no debate thereafter : and further alleadged , that for the towns debts , that such as were contracted for the common benefit of the town , for getting their erection , and harbour ; and for the second ministers stipend , the half of which had been payed by the whole heretors , since the year . and the other half since the year . that their new kirk was erected , should burden the pursuer proportionally , according to his land rent . the pursuer answered , that he not being an inhabitant , was not concerned in the erection or harbour , nor in the second ministers stipend , seing he payed his whole teind to the first minister . the lords found the pursuer lyable for the half of the stipend , in regard of the immemorial use of payment , but found him free for what he had not payed of the other , unless it had been imposed by authority , or his own consent ; and also found him free of the personal debt , and would not sustain process against the inequality of the stent roll , after so long a time . duncan campbel contra the laird of glenorchy , iuly . . dvncan campbel pursues the laird of glenorchy , for ejecting him from certain lands , and especially , that his brother , by his direction , did violently cast out the pursuers children , and servants out of a part of the land , laboured by himself ; and perswaded , and enticed his tennents , to receive tacks from , and pay the mails and duties to him , and therefore craves re-possession , and double mail , as the violent profits of the whole lands , during the defenders possession . the defender alleadged absolvitor , because he had obtained improbation against the pursuer , of all his rights of these lands , and others ; and likewise decreet of removing . the pursuer answered , that the defense ought to be repelled , because the improbation was only by a certification , when he was prisoner in irland , and the defender by articles of agreement produced , had acknowledged the pursuers right , and obliged himself to infest him in the lands in question . dly , though the pursuer had but possession without any right , he might not be ejected , but by a precept of ejection from a judge , which is not alleadged . the defender answered , that these articles of agreement were never perfected , nor extended , and could only import a personal action against the defender , for extention , or implement , wherein , when the pursuer insists he will get this answer , that he can have no benefit of the articles , being mutual until he perform his part thereof , which is not done . the lords repelled the defence , and duply , and sustained the ejection . the defender alleadged , further , that that member of the libel , craving violent profits for that part of the land possest by tennents , because by the defenders perswasion , they became his tennents , is not relevant , because ejection is only competent to the natural possess or upon violence , and perswasion is no violence . the pursuer answered , that the prevailing with the tennents , was consequent to the casting out of the defender , out of his own house , and natural possession , and was as great a fault as intrusion , and equivalent thereto . the defender answered , that the law has allowed violent ▪ profits only in ejection or intrusion , which can be drawn to no other case , though it were as great , or an greater fault . the lords sustained the defence , and found violent profits only competent for that part , that the pursuer possest naturally ; but if the whole lands had been an united tenement , or labouring , that the pursuer had been ejected out of the principal messuage of the barony , and the ejecter had thereby gotten possession of the whole , it is like the lords would have sustained ejection for the whole , but this was not pleaded . lord rentoun contra lambertoun , iuly . . this day the lord rentouns processe against lambertoun , mentioned the . instant , was advised ; by the probation it appeared that the corns in the girnels of haymouth , and the cattel in the mains of rentoun , and horses were taken away by lambertoun , with a troop , or troopers ; and that the corns were carried to dunss , the army being thereabout at that time : whereupon the question arose , whether or not lambertoun were lyable for these , which by the probation did not appear to be applyed to his use , but to the use of the army . the lords assoilzied him therefrom , as they had done in several cases formerly , upon the act of indemnity , whereby whatsoever was acted in the troubles , by warrand of any authority in being , was totally discharged ; and the lords did thereupon find , that the actors were not obliged to produce , or show a warrand , but that it was enough the deeds were done , man● militari , unlesse the contrair were proven by the actors own oath , that what was medled with , was not employed to entertainment of souldiers , or any other publick use , but to their own private use . laird of milntoun contra lady milntoun , iuly . . the laird of milntoun infifted in his action of reprobator , wherein this point of the dispute was only discust , whether reprobators were competent , unlesse they were protested for at the taking of the witnesses testimonies , or whether it were sufficient to protest at any time before sentence , or if there were no necessity at all , and especially as to this case . it was alleadged there was no necessity of a protestation , and if it were , there was a protestation at the re-examination of the witnesses , and also before sentence . it was answered , that a protestation was most necessar , because the want of it was an acquiescence in the hability , and honesty of the witnesses ; and if it should not be necessar , all process this five years might come in question upon reprobation , which were of dangerous consequence ; and therefore , as incidents are not competent , but when protested for no more reprobations ; as to the alleadged protestation , at the examining of the witnesses , it is but subjoined to the interrogators , only subscribed by one of the four examinators , who subscribed the testimonies , and who does not remember of his subscription , so that it has been surreptitiously obtained from him ; as to the other protestation , the same was not when the witnesses were taken , but at the conclusion of the cause . it was answered , that it was in competent time , even at the conclusion , and that reprobators were not only not rejected , but expresly allowed by the pursuer , by way of action . the lords found this reprobator competent in this case , but did not resolve the point generally , whether they were competent , when not at all protested for ; as to which the lords were of different judgements , but most seemed to require a protestation , ante rem iudicatam , yet so that if it were omitted , the lords might repone the party to reprobators , if any emergent made the testimonies suspect through inhability , or corruption in the same manner , as the lords will repone parties against certifications , circumductions of the term , and being holden as confest . sir george mckenzie contra the laird of newhal , eodem die . sir george mckenzie advocat , having married a daughter of iohn dickson of hartrie , they pursue a proving of the tenor of an inventar of har●ries lands , wherein he altered the former substitution of his children in several bonds , and paricularly of a bond of . merks , granted by whitehead of park , payable to himself , and after his decease to helen dickson his youngest daughter , who was married to ballenden of newhal ; and by the inventar the substitution was altered , and the one half of the bond appointed to pertain to elizabeth ( now spouse to sir george mckenzie ) and the other to helen and michael : to prove that the samine was holograph , because it wanted witnesses ; there was produced for adminicles , the copy of it , written by iohn kelloes hand , hartries nephew , and an judicial instrument , containing the tenor of it by way of transumpt ; but there was some words of difference between the instrument and the copy , which was subscribed by iohn ramsay , hartries good-brother , and mr. iohn pringle , hariries good-son ; who , and several others , being adduced as witnesses , deponed that the principal inventar was produced by hartrie on his death-bed , and shown to his friends , and by them read , and that the subscribed copy was collationed with the principal by them that subscribed the same , and held in all points ; and that the principal inventar was all written with hartries own hand , except an alteration , made upon a bond of tarbets , which was written by iohn ramsay's hand , by direction of hartrie , some hours before he died , and was not able to subscribe it , with some other alterations in relation to bonds , wherein the children substitute , were dead ; but that this article in relation to whiteheads bond , was all written with hartries own hand . the lords found the tenor proven , conform to the subscribed copy , and found the said inventar holograph , except in relation to tarbets bond , and these other particulars written by iohn ramsay's hand , so that holograph was proven , without production of the principal writ , joyntly with the tenor , albeit some part of the writ was not hartries hand , but written by iohn ramsay's hand ; but these not being subscribed by hartrie , were in the same case as if they had been omitted forth of the inventar , and the remainder of the inventar , which only was probative was all holograph . patrick park contra nicol sommervel , november : . patrick park pursues a reduction of a bond of . merks scots , upon these reasons , first , because albeit the bond bears borrowed money , and be in the name of nicol sommervel ; yet he offers to prove by nicols oath , that when he received the bond , it was blank in the creditors name , and offers to prove by witnesses , that the true cause thereof was , that sommervel , nicols brother , having win all the pursuers money he had at the cards , he being then distempered with drink , caused him subscribe a blank bond , for filling up what sum he should win from him , and that this sum was filled up in this bond , which he offers to prove by the oath of nicols brother that wan the money , and the other witnesses insert , so that the clause of the bond being played money , by the act of parliament . the winner can have no more but . merks thereof . dly , before nicols name was filled up , or any diligence or intimation thereof : there was a decreet arbitral betwixt the winner and the pursuer , wherein all sums were discharged● which discharge being by the c●dent , to whom the bond was delivered , before the filling up of nicols name , or intimation thereof , which is in effect an assignation , excludes the assigney . it was answered for the defender , that he opponed the bond , bearing borrowed money , grantled in his own name ; and though he should acknowledge that the bond was blank in the name , and that thereby his name being filed up , he is in effect and assigney : yet the bond being his writ the bond cannot be taken away , but by writ or oath of party , and not by his cedents oath , or witnesses insert , unless it were to the cedents behove , or without a cause onerous , as the lords have found by their interlocutor already . dly , albeit it were acknowledged to be played money , the act of parliament is in desuetude , and it is now frequent by persons of all quality to play , and to pay a greater sum then . merks . thly . the pursuer who loseth the money , hath no interest by the act of parliament , because thereby he is appointed to pay the money , but the superplus money , more then . merks , is appointed to belong to the poor , and the defender shall answer the poor , whenever they shall pursue , but it is jus tertij to the loser , who cannot detain the money thereupon ; but whatever was the cause , the defender having received the bond for a cause onerous , and being ignorant that it was for any other cause but true borrowed money , he must be in t●to ; otherwise upon this pretence , any bond may be suspected , and the cedent after he is denuded by witnesses , may take the same away . the lord advocat did also appear for the poor , and claimed the superplus of the money , more then . merks , and alleadged that the act of parliament did induce a vitium reale . which follows the sum to all singular successors ; and that though ordinarly the cedents oath , or witnesses be not taken against writ , yet where there is fraud , force , or fault , witnesses are alwayes receiveable , ex officio at least , and ought to be in this case , where there is such evidence of fraud , that it is acknowledged the bond was blank in the creditors name , when nicol received it , and the filling up was betwixt two brethren , and the debitor dwelling in town , did not ask him what was the cause of the bond , and that an act of parliament cannot fall in desuetude , by a contrait voluntar custom never allowed by the lords , but being vitious against so good and so publick a law. the lords found the act of parliament to stand in vigour , and that the loser was lyable upon the same grounds , and therefore ordained the sum to be consigned in the clerks hands , and before answer , to whom the sum should be given up , ordained nicols oath to be taken when his name was filled up , and for what cause . margaret calderwood contra ianet schaw , november , . . margaret calderwood pursues ianet schaw to pay a bond ▪ as heir to iohn schaw , granted by him , who alleadged absolvitor , because the bond is null , wanting witnesses ; the pursuer offered him to prove holograph . the defender answered , that holograph could not prove its own date , so that it is presumed the bond was granted on death-bed , unlesse 〈◊〉 be proven that the date is true as it stands , or at least that it was subscribed before the defuncts sickness . the pursuer answered , that holograph proves its date , except contra tertium , but it is good against the granter or his heir , who cannot be heard to say that his predecessors● deed is false in the date . the defender answered , that an heir might very well deny the date of a holograph writ , otherwise the whole benefit of the law ( in favours of heirs not to be prejudged by deeds on death-bed ) may be evacuat by antedated holograph writson death-bed . the pursuer answered , that he was willing to sustain the reason founded on death-bed , which was only competent by reduction , and not by exception or reply . the defender answered , that where death-b●d is instantly verified by presumption of law , and that the pursuer must make up a write , in rigore juris null for want of witnesses , he ought without multiplication of processes , both to prove the bond holograph , and of a date anterior to the defuncts sickness . which the lords found relevant . william duncan contra the town of arbroth , november . . william duncan skipper in dundee having lent the town of arbroth three cannon , in iune . to be made use of for the defence of their town against the english , got from the magistrats of arbroth a bond of this tenor ( that they did acknowledge them to have received in borrowing three guns , and obliged them to restore the same within ▪ hours after they were required , without hurt , skaith , or damnage ; and in case of hurt , skaith , or damnage to be done to them , obliged them to make payment of the sum of . pounds , as the price agreed upon for them ) upon this bond william duncan pursues for the price . it was alleadged for the town of arbroth absolvitor , because the cannon were lost , casu fortuito & vi majo●i in so far as the english , after they had overcome the whole countrey , and taken dundee , did seize upon their cannon after the defenders had carried them the length of bar●i-sands , before they were taken , and chaste back again by the english ships , and thereupon buried the cannons in the sand within the sea mark , and hid the carriages in a laigh cellar , wherein they were covered , and it being clear by the tenor and nature of the bond , that the guns were received in borrowing , and that it was contractus commoda●● , or loan ; which by the consent of all lawyers , does not put the peril of vis major , or casus fortuitus upon the borrower , but upon the lender , who is dominus & res peri●●●● domino . the pursuer answered , first , that albeit by the nature of commodatum , the borrower hath not the peril , yet the law makes this exception , si commodatum sit estimatum , in which case the peril is the borrowers , and it is no proper loan , but rather sale , which is clear , l. 〈◊〉 . commodati ; but by this bond it is evident that it is commodatum estimatum , and here not only a value agreed upon , but a sum expresly declared to be the price . dly , there is no question but loan may consist with that , that the borrower will undertake all peril : ita est by this bond the defenders are obliged to restore , without hurt , skaith , or damnage , which must import all perils , especially such perils as was then imminent , viz. the taking of the cannons by the enemy , otherwise this clause should operat nothing , seing without it the naked naming of a contract would oblige to restitution . dly , albeit the borrower were free of casus fortuitus , yet that is defined , and understood to be qui a nemine potest praevideri , but no body could have been ignorant of this chance , to have been taken by that enemy who were then imminent , and against whom particularly the cannons were borrowed . thly , by all consents , commodatarius ten●●ur ●ro levissima culpa & summa diligentia , whereinto the defender failed ; for they alleadged only an attempt , for carrying back the cannons to the pursuer , but they should have used other attempts , other dayes , and otherwayes ; and likewise they were negligent , that they buried the cannon to the knowledge of their whole town , whereas they should have entrusted some few to have done it in the night ; likeas they failed in this , that they made no application as others did who got back their cannon by a publick proclamation by the usurper , that all cannons taken off ships should be restored , to enable the shipping against the spainard and dutch. the defender answered to the first alleadgeance , that he did not deny but in commod●●● estimato , the whole peril was upon the borrower , but denyed that this was commodatum estimatum , for all lawyers do define commodatum estimatum , in the same way as dos estimata , to be where the obligation is alternative , either to restore the thing borrowed , or the price , at the option of the borrower , so that the lender is no more dominus , nor can demand the thing borrowed , which becomes the ●●●rowers , unlesse he please to give it back , & res perit s●o d●mino , but where the value is only liquidat in case of deterioration , or in case of failzie , the borrower cannot free himself by offering the price , but the lender may call for the thing , although it were deteriorat , but here the liquidation of the price is only in case of deterioration , and the dominion is unquestionably in the lender . to the second , it was denyed that the borrower had here undertaken the peril , for the words of the contract being ( hurt , skaith , and damnage ) in the proper and vulgar use , do not signifie peril or hazard , but only deterioration , and have this equipollent positive to restore the guns in as good case as they receive them , which would never import force or accident , and for the expressing of that clause , nothing is more ordinar then to express clauses , quae natura contractus insunt , and the adjection of this clause may have these uses , first , it liquidats the value , in case the borrower ●ailzie , without putting the lender to prove the same . dly , whereas a simple loan might only have obliged the borrower to diligence , so that if without his fault in making the use , for which the thing was borrowed , it had been deteriorat and lost , the borrower would not have been lyable , as he that lends cloaths to be worn , must not demand the deterioration by that ordinar wearing without fault , or ●he who lends a horse to a battel must not require reparation if he be wounded or killed in the battel , unlesse he have a special obligement , to have him restored without hurt , so in this case , the parties having foreseen the ordinary case of the cannons , being hurt in defending the town , by much shooting , or by the shot of the enemies , hath provided that even the damnage in that use should be repaired , which can never be extended to an accidental loss of the cannon , not in defence of the town , but after the enemy had over-run the nation , and taken dundee , and arbr●th was dismantled , the cannons were taken out of the sand. to the third , casus fortuitus is not that which cannot be foreseen to be possible , but that which cannot be foreseen to have a sufficient , at least a very probable cause , otherwise there should be no casus fortuitus , but this case which happened had been most ominous , for any scots-man to have supposed , as most probable , that before breaking of the army , or the english coming over forth , the kingdom should have been lost . to the fourth , the defenders were no wayes in culpa , or mora , but did more then they were obliged , for they were obliged to restore but upon demand , and before demand they endeavoured to have restored , and then they buried the cannon within the sea mark in the night , and though there was a proclamation to give up all armes under the pain of death , they did not discover their cannon , albeit upon their discovery otherwise , one of their magistrats run the hazard of his life ▪ and as for the proclamation alleadged , it meets not this case , their cannon not having been taken off ships , and if it was publick the pursuer behoved equally to know it , and should have made his address for his own cannon , neither would the defenders have refused their concourse , if it had been useful , or desired . the pursuer opponed his former answers , and added , that the law cited spoke expresly of commoda●um estimatum , to transfer the peril on the borrower ; and there is no law adduced to restrict it , not to take place in that which is estimat , only in the case of deterioration , & ubi lex non distinguit nec nos : and as to the meaning of the clause , in dutiis interpretatio facienda est contra proferentem qui potuit legem sibi opertius dixisse . so this bond being the defenders words , blame himself if he made not that clear . the defender answered , that albeit that be one rule of interpretation , yet there are others stronger making for him , viz. in dubiis respondendum pro reo , in dubiis pars mitior & aequior sequenda : now it cannot be thought , that parties would have been so unreasonable , as to have demanded restitution , if the kingdom were lost , and the cannon taken after all diligence done to keep them : but this is the most special rule , in dubiis respondendum secundum naturam actus ant contractus . the lords found that by the nature and tenor of this contract ; the defenders were not lyable for this accident that happened , and that they were not in mora , nor culpa ; but had done all diligence , and therefore found the cannon lost to the pursuer and lender , and suspended the letters simpliciter . thereafter upon pronuncing of the interlocutor . the pursuer offered to prove by the writter and witnesses insert in the bond , that it was expresly treated and agreed , and that the meaning of the clause was , that the defender should be lyable to all hazard , and desired the witnesses at least to be examined ex officio . the defender alleadged that the pursuer having gotten a term already to examine witnesses , ex officio ; and the parties being examined , he could not now demand a new term , neither could a clear clause in a bond be altered by witnesses . the pursuer answered , that the clause was at best but dubious ; and so the meaning was not to prove against the writ , but to clear the same , which is ordinar . the lords would not give any further term for leading witnesses , but found that alleadgance only probable by the oath of the party . patrick andrew contra robert carse . november . . patrick andrew having sold twelve piece of wine to margaret henderson , who keeped a tavern after she was proclaimed to be married to robert carse flesher , a part of which wines was vented before the marriage , and a part thereof vented after the marriage , but the marriage dissolving within three or four moneths by the wifes death ; the most part of the wine remained unsold at her death ; the merchand pursued the wife for the price , and the husband for his interest , some dayes before she dyed ; after her death , her husband vented no more of the wine , but caused the magistrates inventar the same , and delivered the keys to them . patrick andrew who sold the wine , doth now pursue robert carse the husband for the price of the wines , who alleadged absolvitor , because there was no ground in law to make him lyable for his umquhil wife her contract and obligement ex emp●o , he being only lyable jure mariti ; which being dissolved by her death , he is free , for he is neither heir nor executor to her . the pursuer answered , that the husband having allowed the vvife to continue the venting of the vvine , she was thereby preposita negoliis mariti , and thereby her medling must be the husbands medling , who must be lyable for the whole price , especially seing he never made offer of the remaining vvine to the pursuer , though he knew his interest , and had pursued him for the price ; so that the vvines having perished , it must be attribute to his fault ; and the merchant who knew not the condition thereof , cannot lose the same . dly , the pursuer offered to prove that the defender put in his own nephew to be taverner , after he married the vvoman . dly , the ground in law that the pursuer insists on against the husband is , in quantum lucratus est , by his intromission with the vvine , and price thereof , and any thing that has been lost through his fault , is alike as he had been profiter in the whole . the defender answered , that he declyned not to be lyable , in so far as he was profited , viz. for the price of the vvine vented during the marriage , which he was content to refer to the pursuers probation , how much was vented then , but he could not be lyable for what was vented before the marriage , though after the proclamation , much less for what remained unsold after the vvifes death ; neither was he in any fault by not offering the vvine to the pursuer , nor might he lawfully do the same , because the marriage dissolving within year and day , the propertie of the whole vvines returned to the vvifes executors , and nearest of kin ; and the husband had no interest therein , as he would have had if the marriage had continued year and day ; neither had the merchant any right to the wines , ( the property whereof was in the wife and her executors ) but had only a personal obligation for the price ; and therefore he could not deliver the wine , nor medle therewith , without vitious intromission , so that he did the most exact diligence by inventaring , and delivering the keys to the magistrates ; so that there being ten piece of wine then in the celler , the defender could only be lyable for so much of two piece as the pursuer should prove sold during the marriage . the pursuer answered , that the defender having once intrometted and medled with this parcel of wine , he is in so far lucratus , and he can no more sever some punsheons unspent from the rest , nor one part of a punsheon vented from the remainder : so that he can offer nothing back of the parcel , re non int●gra , nor can he alleadge that the whole ten piece was of the pursuers wine , because the pursuer offered to prove , that this deceast wife bought other wine from other persons at that time ; and it were against law and reason , to put the merchand ( who is a stranger ) to prove what was vented during the marriage , and how much of the pursuers wine remained after the marriage , for that was the defenders part to enquire , and not the pursuers part who is a stranger . the lords found the defender not lyable for that part of the wine vented before the marriage , nor yet for what remained unspent after the wifes death , seing he inventared , and abstained : but they found the husband obliged to prove both wat was spent before the marriage , and what of this wine remained after the marriage : if the pursuer proved there was other wines in the celler , and so found the defender lyable fo● the whole , except in so far as he proved was sold before the marriage , and remained after the wifes death . the daughters of mr. james mortoun supplicant . november . . the daughters and heirs of mr. iames mortoun , gave in a supplication to the lords , making mention that the father being infeft in an annualrent , effeirand to the principal sum , due to him by the lord balcombie , they did thereafter obtain decreet for the principal sum , and thereupon appryzed the property , wherein they stand infeft , holden of the king : in which appryzing there is a reservation exprest , but prejudice of the infeftment of annualrent , and now being desirous to be infeft in the annualrent , as heirs to their father , and that themselves were superiours by the infeftment on the appryzing , and conceived it not proper for them to infeft themselves , did therefore desire the lords to grant vvarrand to direct precepts forth of the chancellary , for the king to infeft them . the lords having considered the case , and argued the matter amongst themselves , whether it were more secure and legal , that they should be infeft by the king upon their supplication ; or that they as having right to the property by their infeftment on the appryzing , should grant precepts for infefting themselves in the annualrent , as heirs to the annualrenter : or whether their infeftment in the superiority would consolidat the annualrent without infeftment : the difficulty against the kings infefting of them was , that the king infefts none but these that holds immediatly of him , or upon the disobedience of the immediat superiour , supplendo vices . to which it was answered , that the king may supply the place of the immediat superiour , either when he will not , or cannot infeft his vassal , and the petitioners conceive that in this case they cannot : and both being extraordinary remeeds , the lords may do the same , and have done it in former cases . the difficulty as to infefting themselves was , that the right of property , and jus nobilius , did extinguish the right of annualrent ; and yet the right of property may be reduced , and then they would be necessitat to defend themselves by the annualrent ; and therefore it is not an absolute extinction , but in tali casu ; and therefore they have reserved the same in the appryzing . the difficulty as to the third way was , that if the right of superiority should be reduced , they should be without infeftment at all . the lords found that they might either infeft themselves by their own precept , or might get precepts from the king , as was desired , periculo petentium , or they might make use of both together . mr. alexander seaton contra george seaton of menzies . december . . mr. alexander seaton , heir and executor to iames seaton his brother , pursues george seaton as heir to his father iames seaton , for making his fathers tutor accompts , as being tutor to the pursuers brother , and for instructing that he was tutor , produced several writs subscribed by him , as tutor testamentar . the defender alleadged : first , that the condescendence was not relevant to instruct the defenders father tutor , unless the testament whereby he was nominat were produced ; otherwayes his acknowledgement can only make him but pro-tutor , and so not lyable for all omissions , and no sooner lyable , then after the date of these writs . dly , albeit the defenders father had been tutor , yet by the writs produced , it is evident that he was but one of more tutors ; and therefore no process against him , till they be all called . the pursuer answered , that the acknowledgement to have been tutor was sufficient against him , who subscribed the same : and that there was no necessity to call all the rest , seing the whole tutors were lyable in solidum , and as ordinarly parties bound conjunctly and severally , may be conveened conjunctly or severally , so may tutors , who as others may except upon the performance of other tutors as well as their own ; neither is the case of tutors alike with cautioners , who are not lyable in solidum ; for tutors as they are lyable conjunctly and severally for the whole office , so are they conveenable conjunctly and severally for the same . the lords repelled the first alleadgance , and found the writs produced instructed the defenders father tutor , and not only pro-tutor ; for if the testament had been produced , shewing other tutors , so that the acknowledger could not have been tutor testamentar , it would have made him but pro-tutor , but that not being , it instructed him tutor . as to the other point , in respect the tutor was dead , and his heir only but conveened , who could not know the administration , the lords would not sustain process , till they were also called . agnes goodlat contra george nairn . december . . agnes goodlat as representing the umquhil wife of george nairn , pursues for the third of the moveables belonging to him the time of his wifes decease . it was alleadged for the husband , that before division , the heirship moveable behoved to be drawn . it was answered , that there could be no heirship of a man that was living , it was answered , that albeit there was no actual heirship , yet the best of every kind was heirship moveable , wherein the wife had no interest . which the lords sustained ; and ordained the heirship to be first drawn . earl of argile contra george stirling . december . . the earl of argile having pursued george stirling to remove , he alleadged absolvitor , because he stood infeft on an appryzing . it was replyed , that the appryzing and infeftment could not defend him , because the person from whom he appryzed , being a vassal of the earl of argiles , and his right not being confirmed by the king , the same could not exclude the pursuer , the kings donator , and the appryzer could be in no better case then his author . the defender duplyed , that he was in better case , because he being infeft by the king before the pursuers gift , when the king had both superiority and property , it is equivalent to him , as if the king had confirmed his authors right . it was answered , that infeftments upon appryzings that pass in course , and are not noticed in exchequer , cannot prejudge the king , and take away the benefit of the gift , which must pass by a several signature . which the lords found relevant , and repelled the defense and duply , and decerned . scot contra aitoun . december . . mr. iames aitoun having disponed the lands of grainge , with the burden of . merks , to be payed to his daughters . iohn scot having married one of the daughters , in their contract of marriage , the daughter anna aitoun assigns her part of the . merks to her future spouse , and in the same contract he acknowledgeth the receipt of the money from mr. robert aitoun the debitor ; and therefore , with consent of the said anna , discharges the said mr. robert by a contract of the same date , betwixt iohn scot and mr. robert , relating the contract of marriage , but acknowledges there was no sums payed for the discharge contained in the said contract , but that the security contained in this contract was granted therefore ; and therefore he gives a new heretable security to iohn scot , the marriage dissolves within year and day , by the death of the said anna , without children ; she in her testament names the said iohn scot her husband , her executor and universal legator . george scot as representing his father , pursues aitoun of inchderne , as representing his father , for the sum contained in the contract , who alleadged absolvitor , because the pursuers , and his fathers right flowing from the marriage , and it dissolving within year and day , his right ceaseth , and farther alleadged that all things were now in the same condition as before the marriage , so that the contract of marriage was void , and the discharge granted in the first security was void ; and the first security being heretable , belongs to anna's executors , from whom the defender has right by assignation . the pursuer answered , that the defense is no wayes relevant ; because though the marriage dissolved within year and day , and that thereby the tocher and jointure became void ; yet what was acted in relation to mr. robert aitoun , who was a third party , viz. the discharge and renunciation of the first security stands valid as to him : for if the lands burdened had been sold to any other , that burden being once discharged and renunced , could never affect them , so that whatever is in a contract matrimonial , extrinsick and relating to third parties is valid , and the acknowledgment of the money contained in the contract , is at least acceptilatio , which extinguisheth the first security in the same way , as if real payment had been made : in place of which payment standeth the new security granted to the husband , so that now there is neither debitum nor creditum betwixt anna aitoun and umquhil mr. robert aitoun , or their representatives : but by the dissolution of the marriage , the husband and his heirs becomes lyable to pay the tocher , but not to the wifes heirs , but to her executors , for the tocher being payed or satisfied , and the old security taken away , the husbands obligement to pay , is clearly moveable , and so belongs to the pursuer as executor , and universal legator to his wife , and not to the wifes heirs , or the defender who has right from them . the defender answered , that the tocher never having been uplifted , but remaining in the same debitors hands as before the marriage , omnia redeunt in pristinum statum , and the discharge granted to the debitor in contemplation of the marriage , is also void ; so that if the husband had died and the wife survived , if she had pursued mr. robert aitoun upon the first security , and if he had defended upon the discharge contained in the contract of marriage , he would have been excluded by this reply , that that discharge being granted in contemplation of the marriage , is now void by the dissolution thereof within year and day ; especially seing the debt yet remains in the debitors hand . dly . the defender alleadged that the discharge , though it were valide , was not habilis modus , to extinguish the first security , being a real right . dly , that the new security granted to the husband being heretable , and the husbands therein ceasing , it accresceth to the wife , as if it had been granted to her , and so can only belong to the defender , as having right from her heirs , and not to the pursuer , as being her executor . the pursuer answered that the first security was totally extinct by acceptilation , and by the discharge thereof granted to the debitor in the contract of marriage ; and though the wife had survived and pursued the debitor , and he had excepted upon the discharge , her reply upon the dissolution of the marriage would not have been sustained to annul the discharge ; because whatever might have been done , if the debitor could pretend no damnage or interest ▪ yet where the debitor had granted a new security to the husband , which could never be taken away without the discharge , and renunciation of the husbands heirs , the debitor could never be decerned to pay the wife , so long as the security to the husband stood : which security could never accresce to the wife , at least could never so accresce , as to make it an heretable security to the wife , but she could only have right of repetition against the husband : and the question being here concerning the changing of the condition of a sum from heretable to moveable , as a requisition or charge during the marriage would have made the sum moveable , multo magis , an innovation and acceptilation by a discharge and new security : and whereas it was alleadged that the discharge was not habilis modus . it was answered that this sum not being secured by an infeftment of annualrent or wodset , but only by a provision , burdening another infeftment of property with the sum , there needed no resignation but the discharge and renunciation is sufficient . the lords found the first security to be wholly taken away by the discharge contained in the contract of marriage , which they found valid as being granted to a third party , notwithstanding of the dissolution of the marriage ; and therefore found it to belong to the husband , as having right to the new security , and as executor to his wife , and not to the defender as having right from the heirs . mary winrham contra mr. iames eleis . december . . james murray of deuchar having married his daughter to iames eleis of stenopmil● , leaves to the seven sons of the marriage beside the heir , . merks , and the portion of the deceasing to accresce to the surviving ; which sum was uplifted by iames eleis who in his testament nominats his eldest son and heir , his executor and universal legator , and ordains him to pay all his debts out of the first end of his moveables , and then leaves . merks to patrick his second son , in satisfaction of all that he might succeed to by the decease of the testator his father : margaret winrham , relict and executrix creditrix to her husband , obtained a decreet before the commissars , against mr. iames eleis , who suspends on this reason , that patricks legacy of . merks , being in full satisfaction of all he could demand by his fathers death , must be understood in satisfaction of the said legacy , left by iames murray , which being lifted by iames eleis the testator , and so becomes his debt , debitor non praesumitur donare . dly , the commissars decreet is most unjust , in decerning annualrent where there was none due by paction , the sum being but a legacy which never bears annualrent . the charger answered to the first , that the brokard debitor non praesumitur donare , holds not in many cases , especially in provisions of children by their fathers , who are obliged jure naturae & ex pletate pate●na , to provide them . and in this testament , the executor is appointed to pay all the debts without any exception of this or any other , and the testator had a plentiful estate , it can no ways be thought that both the legacy and this sum in question , was too great a portion to his second son ; as for the annualrent , the father being tutor , and lawful administrator to his son , ought to have imployed it profitably , and no doubt did , being a most provident man. it was answered , that the son never having insisted for this sum , nor having ever demanded annualrent during his fathers life . it is an evidence he acquiesced to his fathers provision , and cannot seek annualrent against his fathers executors , his father having alimented him , neither is he lyable for that rigor that other tutors are . the lords repelled the reasons as to the principal sum , and found that the fathers legacy was not in satisfaction of the grand-fathers legacy ; but found no annualrent due , but suspended the letters simpliciter as to annualrent . sir alexander frazer contra alexander keith . december . . sir alexander frazer doctor of medecine having purchased the lands of m●ekelty from andrew frazer , who had appryzed the same from alexander keith , pursues a declarator of the expiring of the appryzing , and of his right of the lands thereby . it was alleadged for alexander keith , that he had depending actions of reduction against the grounds of the appryzing , and thereupon alleadged , that the saids sums were satisfied before the appryzing , at least by the pursuer or his authors intromissions with the rents of the appryzed lands within ten years after the deducing thereof : during which time the legal was unexpired by the late act betwixt debitor and creditor , whereby the legal of appryzings , led since . are prorogat for three years . and as to the first point , he alleadged that the ground of the appryzing being a minut of alienation betwixt the said alexander keith and andrew frazer , whereby andrew dispones the lands of miekeltie and stranduff to the defender , the tenor of which minute is , that the said andrew obliges himself to infeft and secure the said alexander in the said lands , and to purge all incumberances thereupon ; and that the price shall not be payable till the said alexander be put in possession . there is also a commission therein granted to the defender , to purchase two expired appryzings , and to satisfie any other incumberances , and to serve the said andrew heir to thomas frazer his father , and to obtain the said andrew infeft as heir to his father , and likewise the defender himself in the lands ; so that the right the disponer had , being only a back bond granted by frazer to staniwood , thereafter lord frazer , by which he obliged himself , to denude himself of the lands of mickeltie , in favours of the said andrew disponer : which back bond was appryzed by the two expired appryzings , but could not reach the lands of stranduff , because staniwood was not infeft therein , nor did the back bond bear the same , and therefore the defender was necessitat to purchase the right of a third appryzing , led at the instance of craigivar against andrew frazer the disponer , as lawfully charged to enter heir to thomas frazer his father , who died last infeft in the lands of stranduff , and which would have excluded any right that the defender had from andrew frazer , especially seing the sum on which craigivars appryzing proceeded , was a debt due by the said thomas frazer to william frazer , which william frazer raised a pursuit thereupon , against the said andrew frazer , as representing thomas his father , and raised inhibition upon a dependence ; which inhibition is execute and registrate against andrew frazer , before he disponed the lands : after which dependence , the matter being referred to arbiters , they decerned andrew frazer to pay to the said william frazer two thousand merks out of the first and readiest of the price of miekeltie , due by the defender alexander keith , or out of any other goods or sums belonging to the said andrew : so that the decreet arbitral upon the submission being in the same terms , was equivalent to an assignation or a precept ; and the defender alexander keith satisfying that sum , it is in effect payment of so much of the price , and craigivars appryzing proceeding on that same sum , it was most necessar for the defender to acquire that appryzing , as proceeding upon a right , whereupon inhibition was used before the minute , and upon a decreet arbitral , in effect assigning william frazer to so much of the sum , due by alexander keith . the pursuer answered , that the defenders alleadgence ought to be repelled ; because the acquiring of craigivars appryzing was altogether needless , and no way warranted by the minute , and so cannot exhaust the price , because that appryzing was led . years after the minute , and the defender having accepted a commission to do all things necessar for establishing of his own right , he ought to have served the disponer heir to his father , and to have infeft him in stranduff ▪ and to have infeft himself upon the disponers resignation : or if he had found that the lands were disponed to frazer of staniwood upon trust , he ought to have procured the same , to have been established in his person , as coming in the place of andrew frazer , to whose behove the trust was , which would for ever have excluded craigivars appryzing , being long posterior to the defenders commission contained in the minute ; so that it was his own fault , that he suffered another to appryze : neither could the inhibition have prejudged him , though prior to the minut , in respect it was upon a dependence , upon which , no decreet in favours of the inhibiter , could ever follow , the cause being extinct by transaction and decreet arbitral ; neither is there any process extant , neither is the decreet arbitral equivalent to an assignation and precept , because it doth not decern andrew frazer to assign the sum due by the defender , nor doth it declare that that sum shall belong to him , but only decerns andrew frazer to pay out of keiths sum , or any other ; so that thereupon no action could have been effectual against keith , to pay the sum , but only against frazer himself . the defender answered , that albeit no sentence of a judge proceeded upon the dependence , the sentence of the arbiters being in eadem causa , was equivalent : and whereas it is alleadged , that the defender had a commission to perfect his own security by the price left in his hand . it was answered , that the commission being for his own behove , and for his own security , he might make use of it , or not make use of it as he pleased : especially seing the disponer was obliged to perfect the defenders security . dly , in the minute there was no procuratory of resignation , neither were the old evidents delivered to the defender ; so that he could neither obtain frazer to be infeft , much less himself upon frazers resignation , wanting a procuratory . the pursuer answered , that the commission being a mandat accepted by the defender , did ex natura mandati , bind the accepter to do diligence ; neither is it to his own behove , but was also to the disponers behove , that his obligements might be fulfilled , and his price not stopped : and although the minute want a procuratory of resignation , that is no way relevant : for if the defender had required a procuratory of resignation from the disponer , or had required the writs to instruct the service , being in the disponers hand , and had been refused of either , he had been in no fault : but without any diligence , to suffer another appryzing to be led ten years after his commission , and now having taken right to the appryzing himself , he cannot therewith exhaust the price , especially against this singular successor , having acquired bona fide , after a decreet of suspension in foro contradictorio , when the defender had right to the said third appryzing , and alleadged nothing thereupon . the defender answered , that he cannot be excluded from his defense by the decreet of suspension , as being competent and omitted the time of that decreet , because ( competent ) is only relevant against decreets in ordinary actions : but neither in reason nor custom is the same relevant against decreets of suspension , there being this evident difference , that in decreets of suspension the reasons must be instantly verified : but in ordinary actions , there are terms assigned for proving defenses , and so it hath ever been practised by the lords . the pursuer answered , albeit it was anciently the custom to admit competent , and omitted only against decreets upon ordinary actions : yet by an act of sederunt in anno . or . the same was extended to decreets of suspension ; and albeit through neglect of the clerks , the act hath not been booked : the session being interrupted by the war shortly thereafter ensuing , yet it is notorly known , and was in practice anno . when the decreet was obtained against this defender , whereupon the appryzing proceeds , and that practice was both just and necessar ; for if decreets might be suspended as oft as the suspender can produce another writ , the most solemn sentences should be made insignificant ; for the ground of excluding things competent , and omitted , is not only that publick sentences upon compearance , are as valid as transactions , which upon no pretence can be rescinded , that pleas be not perpetual : but also because they are omitted , dolo & animo protrahendi litem , which is ever presumed , unless another cause be assigned , wherefore they were omitted as , noviter veniens ad notitiam , which is sustained , even as to decreets in ordinar actions : and if in no case competent and omitted be allowed in suspensions , we shall have no more decreets in ordinar actions ; but the defenders will still be absent , and will suspend as oft as they can find different grounds , as if of one sum , one have twenty or thirty several receipts , he will raise as many subsequent suspensions , which will at least serve for as many sessions ; and though it should be alleadged quod dolo omisit , it would not be relevant : so that if the suspender can purge his fraud ▪ either as not knowing of the writ , whereon he hath again suspended , or as not then having it presently in his power to instruct it , would be sufficient , which clears the difference betwixt decreets of suspension , and other decreets , to operat no further than that in suspensions , the fraud is purged , by showing that the writ was not ad manum , which is not so in ordinar actions , where terms would have been assigned to get the writ : and albeit the lords might by modifying great expences bar the multitudes of suspensions , they could hardly do it justly , if of the law it were no fault ; and it is known , the lords are neither in use of , nor have time for such modifications . the lords superceeded to give answer as to this point , till the compt proceeded as to the particulars , but the lords had no respect to the alleadgance upon the inhibition , seing no decreet followed , nor upon the decreet arbitral , which they found not equivalent to an assignation or precept : but the lords found the commission contained in the minute , not to oblige the defender , as to any diligence ; and therefore found , that as to that point , he might acquire the third appryzing , which would have excluded him , albeit he might have prevented it by diligence . mr. robert swintoun contra iohn brown. december . . margaret adinstoun being infeft in liferent , in certain roods of land near hadingtoun , she and her second husband grants a tack to iohn brown thereof , for certain years , and thereafter till he were payed of . merks , owing to him by the husband , after that husbands death , she being married to a third husband , there is a decreet of removing purchast at her and that husbands instance , against iohn brown , but the husband did not proceed to obtain possession by vertue thereof , but brevi manu ejected brown ; whereupon brown obtained a decreet of re-possession : now the said margaret adinstoun having assigned the decreet of removing to mr. robert swintown , he charges iohn brown to remove , who suspends on this reason , that he having obtained decreet of re-possession , after the decreet of removing , upon the husbands violence , cannot now be removed , without a new warning . the charger answered , that the decreet of re-possession , bearing to be ay and while this suspender was legally removed , and that in respect he had been put out summarly ▪ and not by the preceeding decreet of removing ; which having now taken effect , he being in possession , the charger may very well insist , that he may now legally remove , by vertue of the decreet of removing . the lords repelled this reason , in respect of the answer , and found no need of a new warning . the suspender further alleadged that he cannot remove , because he bruiks by vertue of a tack granted by margaret adinstoun and her second husband . the charger answered : first , that the tack being only for four years specially , and an obligement not to remove the tennent while the four hundred merks were payed , which is not a tack , but a personal obligement , which cannot defend the suspender against mr. robert swintoun , the singular successor . dly , the tack is null , being subscribed but by one nottar . the suspender answered , that a right of liferent not being transmissible by infeftment , but only by assignation , the assigney is in no better case nor the cedent , except as to the probation by the cedents oath . dly , the tack is ratified judicially by the wife , in the court of northberwick , which is more nor the concourse of any nottar . ly , if need beis , it 's offered to be proven by the wifes oath , that the subscription was truly done by the nottar , at her command . the charger answered , that the judicial ratification cannot supply the other nottar ; because the same nottar , who is nottar in the tack , as also nottar in the judicial ratification , which is but done in a baron court : so it is but assertio ejusdem notarij , no stronger nor it was , neither can it be supplyed by margaret ad●●stouns oath , de veritate facti ; because her oath cannot be received in prejudice of her assigney : and though her self were charger , the law requiring two not●ars , till both subscribe , the writ is an unsubscribed writ ; and in all matters of this nature , parties may resile before subscription . the lords found the tack valid against the wife , subscriber thereof , and her assigney , ay and while the sum thereof were payed : but found the tack was null , as being but by one nottar , notwithstanding of the judicial ratification being by the same nottar ; and found that the cedents oath could not be taken in prejudice of the assigney , to astruct the verity of the subscription , unless the assignation had been gratuitous , or the matter had been litigious before the same : in which case they found that there was no place to resile after the subscription of the first nottar , the verity and warrand of the subscription being proven by the said margarets oath . the suspender further alleadged , that he could not remove , because the liferenter being year and day at the horn , he had a gift of her liferent escheat , and thereby had right to possess her liferent-land . the charger answered non relevat , because the gift was not declared : dly , it could not be declared , because it proceeded upon a horning , against a vvife cled with a husband , who being sub potestate viri , cannot be contumacious , or denunced rebel thereupon . the suspender answered , that he needed no declarator himself , being in possession of the only right , to which the declarator could reach . dly , the horning , albeit against a vvife , was valid unless it had been upon a debt contracted during the marriage ; but this horning proceeding upon a decreet against a vvife as executrix and vitious intromissatrix with her husbands goods , a horning upon her own fact or fault was alwayes effectual . the lords would not sustain the gift without a declarator , and superceeded any extract at the chargers instance , till a day , betwixt and which he might insist in his declarator , and superceeded till that time to give answer , in relation to the horning , because the kings officers behoved to be called . mr. alexander seaton contra menzies . december . . mr. alexander seaton as executor to his brother . pitmedden pursues seaton of menzies as representing his father , who was one of the pursuers brothers tutors , for his fathers intromission with the pupils means , who alleadged absolvitor , because the pupil after his pupillarity , had granted a discharge to one of the co-tutors , which did extinguish the whole debt of that co-tutor , and consequently of all the rest , they being all correi delendi ▪ ●yable by one individual obligation , which cannot be discharged as to one , and stand as to all the rest ; for albeit pactum de non petendo , may be granted to one , and not be profitable to the rest , a simple discharge , which dissolveth the obligation of the bond , must be profitable to all . the lords repelled this defense , unless the discharge had born payment , or satisfaction given , and in tantum , they found it would be relevant , but not a simple discharge , which could only be relevant in so far as they by this tutor would be excluded from the co-tutors bearing a share with this tutor , in omissis & male administratis ; there being nothing here but this tutors own proper intromission , now insisted for . the lords repelled the defense simply . margaret mckenzie contra robertsons . december . . margaret mckenzie pursues the executors of her husband , to pay her share of the moveables , who alleaged absolvitor , because there was as much debt as would exhaust the whole moveables . it was answered , non relevat , unless it were alleadged that the executors had payed the debt ; for the debts being yet due , it is j●s tertij , for them to alleadge thereupon : neither can this pursuer propone alleadgances of payment , compensation , or any other , or the defenders reply upon the debts belonging to third parties , unless they were pursuing themselves ; but the pursuer is content to find caution to repeat her share , in case they were distrest . the lords repelled the defense , but prejudice to the executor , to suspend upon double poinding , calling the creditors . it was further alleadged for the defenders , that they must have allowance of sums , bearing annualrent since . it was answered , that no such sums can burden the relict , her part , because by the act of parliament , the relict has no share of such sums , if they were due to the defunct ; and therefore a pari , she cannot be burdened with such sums , being due by the defunct . the defenders answered , that the act of parliament excludes relicts from such sums as bear annualrent , being due to their husbands , but doth not bear , that they shall be free of such sums due by their husbands : and statutes being stricti juris , the lords cannot extend them beyond their sense to like cases . the pursuer answered , that the lords always did , and might explain , and extend acts of parliament to cases implyed , and consequent , albeit not verbatim exprest : and as to this act of parliament , it bears expresly , that all such bonds shall remain in their condition as they were before the act of parliament . quoad fiscum & relictam ; before which , the bonds bearing annualrent , could not have burdened the relict : for the word such bonds , may not only be extended to bonds due to defuncts , but to bonds due by defuncts . the lords repelled also this defense , and found the relicts part not to be burdened with any bonds due by her husband , bearing annualrent , unless they had become moveable by a charge , or that the term of payment of the annualrent was not come at the defuncts death . smith contra muire . eodem die . jean smith having pursued margaret muire as vitious intromissatrix with the goods of george smith her husband , to pay the sum of . pounds due by bond , by the said george to this pursuer ; his sister obtained decreet thereupon , and appryzed the liferent of the said margaret muire , who suspended , and raised reduction on this ground , that she could not be lyable as vitious intromissatrix , because she possest her husbands moveables by a title , in so far as by her contract of marriage she was provided to all the goods and gear acquired during the marriage , for her liferent use , and so she could only be lyable for making forthcoming the true value after her death . the charger answered : first , that there could be no liferent of moveables , quae usu consumuntur , and all liferents of usus fructus must be salvâ rei substantiâ . dly , though a liferent could consist in moveables ; yet the meaning of such a clause , of all moveables acquired during the marriage , must be understood the free moveables , deducing moveable debt ; and cannot be understood to exclude lawful creditors . the lords found the clause to be understood only of free gear , and not to exclude the pursuers debt ; but found it a sufficient ground to free the suspender from vitious intromission , and to retrench the decreet to the true value . sir iohn weems contra forbes of toch●n . ianuary . . sir iohn weems having charged tochon for maintainance , due in anno . or . conform to act of parliament , and commission granted to him , and decreet of the lords . tochon suspends on this reason , that singular successors are free by the act , and he is a singular successor by appryzing . it was answered , that the exception of the act was only in favours of singular successors , who had bought the lands , which cannot be extended to appryzers , who oftimes have the lands for far less then the true price ▪ the lords found the act not to extend to appryzers , unless the sums were a competent price for the land appryzed ; and therefore found the letters orderly proceeded . isobel and margaret simes contra marrion brown. ianuary . . by contract of marriage betwixt umquhil thomas sim and marion brown , iohn flowan marions master , is obliged to pay . merks of tocher , and thomas sim is obliged to imploy the said . merks , and . merks further for the said marion , her liferent use : the said thomas having two daughters , isobel and margaret sims , he lends a sum of . merks to thomas brown , and takes the bond on these terms , to be payed to him and the said marion brown , the longest liver of them two in liferent , and after their decease , to margaret and isobel sims : the said isobel and margaret having pursued the said marion before the commissars , for delivery of this bond , as belonging to them after their fathers death . the commissars assoilzied the said marion from delivery of the bond , and found it did belong to the said marion her self , not only as to the annualrent , but as to the stock , because her husband having no other means but this bond , and not having fulfilled her contract , she had confirmed her self executrix creditrix in this sum , and behoved to exclude her husbands two daughters of a former marriage , who were provided , and forisfamiliat before . of this absolvitor the daughters raised reduction on this reason , that this sum could not be confirmed , not being in bonis defuncti , the father being but liferenter , and the daughters feears , and though they were but as heirs substitute , they exclude executors , and need no confirmation . dly , the husband being but obliged to employ this tocher , and . merks more , the pursuer must instruct that the tocher was payed . dly , the wife intrometted with as much of her husbands goods as would satisfie her provision . it was answered , that the wife not being obliged for her tocher ▪ but another party who was solvendo , and neither being obliged , nor in capacity to pursue , therefore could not now after so long a time , be put to prove that the tocher was payed ; and for her intromission she had confirmed and made faith , and the pursuers might take a dative ad omissa , if they pleased , but could not , hoc ordine , reduce or stop her decreet upon compearance . the lords found that albeit in form the bond should have been reduced , as being done in fraudem of the wife , as being a creditor , and thereafter ▪ confirmed ; yet now the matter being before the lords , and the parties poor , they found the husbands substitution of two provided daughters by a former marriage null , as to the wifes provision by the act of parliament . without necessity of reduction , the matter being but a personal right , and found the wife not obliged to instruct the tocher payed , and therefore assoilzied from the reduction , but prejudice to the pursuers to confirm , a dative ad omissa . william zeoman contra mr. patrick oliphant and dam giels moncrief . eodem die . in a compt and reckoning betwixt these parties , anent the satisfaction of an appryzing , the auditor , in respect that mr. patrick oliphant and dam giels , moncrief , were contumacious and compeared not , did decern conform to william zeomans summonds , finding the sum satisfied , and ordained them to remove ; whereupon william zeoman obtained possession , and having been several years in possession , mr. patrick oliphant obtained himself and the said dam giels to be reponed against the said decreet for his contumacy , and a writer to the signet past letters of possession in his favours , against william zeoman , but without a warrant from the lords , which were found null , and this writer deposed , but mr. patrick having attained possession by these letters , william zeoman insists against him as an intruder to quite the possession . it was alleadged for mr. patrick , that william having obtained possession unwarrantably by decreet , upon his pretended contumacy , and he being now restored there against , he is in statu quo prius , before that decreet , at which time he was in lawful peaceable possession , which only should stand , and neither of the unwarrantable possessions be regarded . it was answered that william zeomans possession was by vertue of a decreet then standing , autore pretore , and so was not vitious , but mr patricks was without warrant of the lords , and so was most vitious . it was answered that mr. patrick was instantly content to debate his right , & frustra petitur quod mox est restituendum . it was answered that spoliatus ante omnia est restit●endus , and is not obliged to dispute any right , till first he be restored . which the lords sustained , and ordained william zeoman instantly to be restored to the possession . my lord balmerino supplicant . ianuary . . my lord gave in a bill to the lords , representing that his uncle was dead , and that he is nearest heir-male to him , in whose favours his estate is provided ; and therefore desired that commission might be granted to certain persons in the countrey , to inventar , seal , and secure his charter chist , and to make patent doors in his houses , coffers , and cabins , for that effect , and to take my lady , his relicts oath , where the evidents were , to the effect foresaid : compearance being made for my lady , desiring a sight of the bill till the next day , and alleadging that it was notour to the lords , that my lady had a disposition to the whole estate ▪ whereupon resignation had past in exchequer , and that the evidents ought to be left open , to the effect my lady may instruct her charter , conform to the disposition . the lords refused to give up the bill , it being their ordinar course to grant such commissions , without calling or hearing parties , and that a short delay might prevent the effect of the commission : and therefore granted commission to certain noblemen and gentlemen , or any one of them to inventar , seal , and secure the evidents , and to open doors , coffers , and cabinets for that effect ; but refused to give warrant to take my ladies oath . captain newman contra tennents of whitehil , and mr. iohn prestoun . ianuary . . captain newman having appryzed the lands of whitehil from prestoun of craigmiller his debitor , and being thereupon infeft , pursues the tennents for mails and duties . compearance is made for mr. iohn prestoun , who produces a disposition from craigmiller his brother , of the baronies of craigmiller , prestoun and whitehil : which disposition , relates this debt of captain newmans , and many other debts , and for satisfaction thereof dispones these lands to mr. iohn , reserving the disponers and his ladies liferent , containing a reversion upon ten merks , and containing a provision , that it should be leisom to craigmiller , during his life , and after his decease to mr. iohn to pay any of the creditors contained in the disposition they pleased , without contributing the price proportionally to the rest of the creditors : and also produces a renunciation by craigmiller , whereby he renunces the reversion and the liferents in favours of mr. iohn , and also his own power of preference of the creditors , and mr. iohn his infeftment upon the disposition , whereupon he alleadged that he ought to be preferred to the mails and duties , because he stands publickly infeft , by vertue of the said disposition , before any infeftment in the person of the pursuer . it was answered for the pursuer , that the infeftment produced cannot exclude him , because it is expresly granted for satisfying of the sum , whereupon his infeftment proceeds . it was answered for mr. iohn prestoun that he having a power to prefer any creditor he pleased , he payed other creditors to the value of the estate , whereby newman is excluded . it was answered for newman , that this disposition was fraudulent and fimulat , in prejudice of lawful creditors , whereof he has reduction upon the act of parliament . as being granted by a brother to another , with a power of preference of creditors at the purchasers option : which clause is altogether null ; especially as to the preferences done , since lawful diligence was used by this pursuer , by horning , inhibition , arrestment , and appryzing : and as no debitor can so prefer himself , so neither can he give such a power to any other : and therefore the pursuer ought to be preferred to all the creditors , conform to his diligence . it was answered for mr. iohn prestoun , that there being no diligences done before the disposition by any creditor , craigmiller might dispone , being for an onerous cause , as he pleased , and might prefer one creditor to another . dly , albeit this power of preference were not simply to be allowed after diligence done by creditors to prefer others to them : yet it ought to be sustained , in so far as craigmiller might lawfully have done , viz. to prefer mr. iohn for the sums due to himself , and for his relief of such sums as he was cautioner in . the pursuer answered , that such a disposition was not made , nor doth this disposition any way relate to mr. iohns sum , and his relief , but generally and equally to all , and there is no difference but the unwarrantable power of preference , which can have no effect after diligence done . the lords found the power of preference not to be sustained as to any other debts , then to such as were due to mr. iohn himself , and for which he was cautioner before the disposition ; and found as to these , that the power of preference was lawful and valide , and was equivalent to this clause , with power to mr. iohn to satisfie himself , and those to whom he was cautioner , primo loco . wallace of galrigs contra mckernel . ianuary . . umquhil wallac● of galrigs being alleadged to have given a seasine propriis manibus , to his second wife of two chalders of victual . the lords sustained the seasine without any other adminicle . but that the wife had quite her former liferent by a former husband , in favours of galrigs , whereupon galrigs offered to improve the seasine by the witnesses insert , which being four , two deponed positively that they were never witnesses to a seasine given by galrigs to his wife : and the third deponed , that he remembred not that he was witness : the fourth deponed , that he was witness , but said that this seasine was in summer , whereas it bore to be in winter : the nottar abode by the seasine , but was not examined . the lords found the seasine improven , but would not examine the nottar , nor any other person , mainly in consideration that the seasine was pr●priis manibus , without any other adminicle ; otherways the nottar and one witness affirming , the lords would have examined the nottar or any other persons or evidences for astructing the verity of the seasine . george hume contra seaton of menzies . ianuary . . george hume as assigney by the earl of wintoun to a bond granted to the earls factor , for his behove , having charged thereupon . the creditor suspends , in discussing whereof , it was alleadged for george hu●● , that he ought to have annualrent , because the suspender by a missive letter produced written to the umquhil earl of wintoun , obliged him to pay annualrent for the time by gone : and therefore ought to continue the same till payment . the suspender answered , it contained nothing as to the annualrents in time coming . the lords found annualrents due from the beginning , both before and after the letter , though they exceeded the principal sum , seing once annualrent was promised for some terms . alexander mckenzie of pitglasse contra ross of auchinleck , ianuary . . alexander mckenzie having right to two compryzings of the lands of auchinleck , one in anno . and another in anno . which being alleadged to have been satisfied within the legals , and the matter referred to an auditor who reported these points to the lords . first , whether the appryzer should compt for the mails and duties , so as to impute the same to both appryzings , as to years after the second appryzing , or to impute them wholly to the first appryzing during its legal , and then to the second appryzing during its legal . it was alleadged for the appryzer , that he having two titles in his person , it was free for him to impute his possession to either of them , and yet he was so favourable , as not to crave his option , but to impute proportionally to both , albeit in law , when receipts are not specially as to one cause , electio est debitoris . dly , when any payment is made by a debitor to his creditor indefinitly , it is still imputed to the annualrents in the first place , before it can satisfy any stock , so that any satisfaction gotten by him , must first be imputed to the annualrent of both the sums , and then to the stock of the first . it was alleadged for auchinleck , that the intromission could only be attribute to the first appryzing . first , because by that right the appryzer entered in possession , and cannot invert his possession to a third parties prejudice . dly , the first appryzing est potior jure ; for if the two appryzings were in different persons , he that had the second , could never attain possession against the first . dly , in dubio solutio est imputanda in duriorem sortem , and therefore to the first appryzing , for if imputation be made to both , the first appryzing will not be satisfied within the legal , and the debitors right will be taken away , which is most infavourable . thly , the appryzer as he did not possess by the second appryzing , so he could not , because the first appryzing carries the right of property , and the second carries only the right of reversion . the lords found the possession was only to be attribute to the first appryzing , and not to the second , while the first were satisfied . the next point was , that it was alleadged the appryzer had sold a part of the lands within the legal , and therefore the worth of these lands ought to be allowed in satisfaction of the sums . it was answered , that the appryzer could not dispone the lands simply , but only his right of appryzing , which would still be redeemable from his assigney , as well as from himself . the lords found that he was not comptable for the whole value of the lands disponed , but for what sums he actually received for the lands disponed , to be proven scripto vel juramento . the next point was , as to the prices of the victual , whether the feers , or greatest prices were due . the lords allowed the debitor to prove the greatest prices , and also to produce the feers , reserving to themselves the modification ; next as to the rental , the appryzer desired a joynt probation , especially it being in the highlands , where the witnesses are suspect . the lords would not grant a joynt probation , but ordained the probation to be by witnesses above exception . hamiltoun contra bain , ianuary . . umquhile agnes anderson having disponed all her goods and moveables , to bains bairns of the first marriage , and made delivery thereof , conform to an instrument produced ; and having thereafter married iohn hamiltoun , he ratified the former deed done by his wife in favours of her bairns : she being now dead , both parties give in supplications , desiring possession of these goods disponed to the bairns , they alleadged upon the mothers disposition , ratified by her second husband . and the husband alleadging that it being but a fictitious possession by an instrument , he as husband being dominus bon●rum , is in the natural possession , seing his wifes liferent use was reserved , and cannot summarly be put therefrom , hoc ordine , upon a supplication without process . dly , if he were in a process , he would exclude the bairns , because the disposition being made after his contract of marriage and proclamation , no deed of his wifes could then prejudge him ; and as for his ratification , he did it to satisfie his wifes importunity , but being granted to a wife during the marriage , he may and does recal it . it was answered , that it was not a donation to his wife , but to his wifes children , which no law makes revockable . which the lords sustained , and found the husband could not recal his ratification , not being in favours of his wife , but in favours of her children , at her desire . earl of athol contra robertson of strowan , ianuary . . master walter stuart as parson of the kirk of blair in at●ol , whereof tillibairn was patron , gave a tack to tillibairn's brother of the whole teinds of the paroch ; which tack he ( within a few days ) assigned to tillibairn , the patron himself . tillibairn's escheet and liferent having fallen , the viscount of stormont obtained the gift thereof , and as donator , assigned the right of this tack to the earl of at●ol , who now pursues robertson of strowan for the teinds of his lands , for many more nor . years , from the date of the tack . the defender alleadged , first , that the tack is null , being set for more nor three years , without consent of the patron , contrair to the act of parliament , . the pursuer answered , that the alleadgeance was justertij to the defender , and was only competent to the pursuer , or some deriving right from him , for the defender being lyable for his whole teind , had no interest to quarrel the pursuers tack . dly , albeit the consent of the patron be necessar , yet it is not necessar to be in the very tack it self , but a subsequent consent is sufficient , and here the patron has given a subsequent consent , in so far as within a few dayes after the granting of the tack , he accepted an assignation thereof himself , and did obtain a decreet of prorogation of the same . the defender answered , that the patrons consent being a solemnity requisit in law , behoved to be in the tack it self , and not being then adhibit , the tack of it self was null ab initi● , and a subsequent consent , not by subscription , but by acceptance , or homologation , was not sufficient , and the defender had good interest to propone the nullity , not being founded super jure tertij , but simply exclusive juris agentis , as wanting the essential solemnities , and also because the defender has payed the minister the accustomed teind-duty for all years bygone , and having his discharge of the whole teind-duty due by him eatenus he is in the ministers place . the lords found the defender to have sufficient interest to alleadge the nullity upon the discharges , but found the patrons acceptance of a right to the ●ack , a sufficient consent to validat the same , and that it required no consent expresly by subscription of the tack . the defender further alleadged absolvitor , because this tack never having attained possession , nor no action following thereupon , for more then . years it is prescribed and void , and so likewise is the decreet of prorogation , being more then . years since . the pursuer answered , that the defender having no right to his teinds , had no interest to quarrel his right . dly , that a tack being but a right to an annual prestation , it is all one , as if a right had been granted to every year a part , in which case . years would be entire , and the pursuer insists for no further . the defender answered , that prescription being a total extinction of the right , and not a transmission thereof , by vertue of an other right ; it is not jus tertij to the defender to alleadge the same , and to exclude any from troubling him , upon a null and prescribed right , and he is lyable only to the minister , to whom he has made payment , and obtained his discharge for bygones , and for time coming ; likeas it is better to be in the hand of an ecclesiastical person , th●n in the hand of a powerful secular person . to the second , that there is not here granted distinct tacks , of several years , but one individual tack for many years , all which years are expired ; but it subsists only by the prorogation : and albeit it be true , that if the tack had been once cled with possession , and so become a real right , the defender would only have been fred of the duties before fourty years , but the very tack it self being never cled with possession , is singly expired and void . the lords found the defense relevant , and competent to the defender , to liberat him of all bygones payed to the minister , but not to exclude the pursuer for time coming , in respect , that by the decreet of provision , and prorogation of the tack , the benefice is no more a parsonage , but the minister is a stipendiary , and is in possession by vertue of a modified stipend , the right of the teinds remaining by the tack , and prorogation forsaid in the tacksman , and in his successors . but because the pursuer alleadged minority and lesion , the defender proponed a third defense , viz. that he had made payment bona fide to the minister , and had received a discharge for his whole teind duty , and could be lyable for no further , for bygones , till his use of payment was interrupted by citation , or inhibition . the pursuer answered , that any payment the defender made , was but an inconsiderable duty allocat out of his teinds , by vertue of the samine decreet of modification , and locality ; and albeit the minister had discharged his whole teind , yet as to the superplus , which is the tacksmans part , the discharge was meerly gratuitous , and was not upon payment made , and the pursuer was willing to allow what he truely payed ; the defender answered , that in all benefices and tacks , use of payment importing a verbal tack , is sufficient per tacitam relocationem , till it be interrupted , so that if the minister had granted a tack in writ but for one year , and the defender had continued in possession per tacitam relocationem , he was bona fide possessor , & f●cit fructus consumptos suos , even albeit the minister had no right , so his use of payment for so long a time must work the same effect , neither can it be made appear , that the defender or his predecessors payed more , then what they now pay . the lords sustained the defense , and found the defender only lyable for use of payment , until citation or inhibition . mr. george johnstoun contra sir charles erskin lord lyon , eodem die . umquhile richard irwing having died infeft in the ten merk land of knok-hill , his son , had a son , and four daughters , his son being his appearand heir , and being addebted a sum to mr. iames alexander , he charged him to enter heir in special to richard his grand-father , and apprized the lands from him , whereunto sir charles erskin has now right ; the said son being now dead , and never infeft , mr. george iohnstoun takes right from the four female grand-children , and serves them heirs to their grand-father , but before they were infeft , there was an infeftment , or charge upon the apprizing , at the instance of mr. iames alexander , and in a former competition , sir charles was preferred upon mr. iames alexanders right , as denuding the male grand-child , appearand heir for the time , in the same manner as if he had been infeft ; now mr. george iohnstoun upon the femals right , raises a declarator , to hear and see it found and declared , that mr. iames alexanders apprizing was satisfied , and extinct by intromission , before the legal was expired . it was alleadged that the pursuers , as heirs served , and entered to richard their grand-father , had no interest to redeem the apprizing , led against robert their brother , unless they were also entered heirs to their brother , which robert , if he were alive , might redeem the apprizing against himself , so that the legal reversion being in his person , cannot belong to his grand-fathers heirs , but to his own heirs , and as he , or his heirs could only redeem , so can they only declare the apprizing to be satisfied by intromission , neither can the reversion belong to two , both to the heirs of robert , who was charged to enter heir , and to the heirs of the grand-father , who died last infeft . it was answered , that robert never having in his person any real right , as never being infeft , albeit fictione juris , the act of parliament gives the creditors like right upon his disobedience to enter , being charged , as if he had entered , yet that is a meer passive title , and could give no active title to robert , or any representing him , either to redeem , or to call the apprizer to an accompt , till they were entered heirs to the person last infeft ; for albeit the creditor apprizer has a real right , yet the disobedient appearand heir has none ; and albeit the lords might suffer the disobedient appearand heir , or his heirs to redeem the apprizing , because the apprizer had no interest to oppose the same , being satisfied , much less can the apprizer now oppose the pursuers , who being infeft as heirs to richard , have the real right of fee in their person , and consequently the right of the reversion of the apprizing led against richards appearand heir , which being a minor right , is implyed , and included in the property . which the lords sustained , and found that the heirs of the person last infeft , being infeft , might redeem , or declare against an apprizer , who apprized from an appearand heir , lawfully charged , albeit they were not of that appearand heir . the creditors of james masson contra lord tarphichan , eodem die . several english-men creditors to iames masson , who lately broke , being infeft in several annualrents , out of lands of his , pursue poinding of the ground ; compearance is made for the lord tarphichan superior , and his donator , to the liferent escheet of james masson , who alleadged that james masson being ribel year and day before these infeftments of annualrent , the ground could not be adjudged , but the profits behoved to belong to the superior , and his donator . it was answered , that the superior , or donator had no interest by the rebellion of james masson , because before the rebellion , james masson was denuded in favours of his son , and he received as vassal , so that the vassal for the time , not having fallen in rebellion , the superior can have no liferent escheat . the superior answered , that the creditors of masson having been once vassal , and as vassal constituting their annualrents , they could not object upon the right of his son , unless they had derived right from his son. dly , the superior is also creditor , and hath reduced the sons right as fraudulent , in prejudice of him , a lawful creditor . it was answered , that the superiors right , as a creditor upon the reduction , doth not simply annul the sons fee , neither doth it at all restore the father again , because it being but a reduction to a special effect , viz. that the creditor may affect the lands , by apprizing upon his debt , anterior to the sons infeftment , notwithstanding of his infeftment , the sons fee stands , but burdened with that apprizing , so that upon neither ground , the superior can have the right of a liferent escheat , of him who once was his vassal , but was denuded before rebellion ▪ and which is most competent to the pursuers , as well as if the superior had been denuded , and another superior infeft , if he or his donator had been pursuing for a liferent , any person infeft in the land might well alleadge , that he had no interest as superior , being denuded . the lords found , that in neither case the superior , or donator , could have interest in the liferent escheat . mr. john hay contra the town of peebles , january . . master john hay the clerk having pursued a reduction , and improbation , against the town of peebles , of all right of ascheils belonging to him in property , containing also a declarator of property of the saids lands of ascheils , and that certain hills lying towards the town-lands of peebles , are proper part , and pertinent of ascheils : he insists in his reduction and improbation , for certification , or at least , that the defenders would take terms to produce . the defenders alleadged no certification , because they stand infeft in these hills in question , per expressum , and the pursuer is not infeft therein . the pursuer answered , that he offered to prove , that they were proper part , and pertinent of the lands of ascheils , whereof he produces his infeftment . the defenders answered , that till the samine were proven , they were not obliged to take terms to produce , or otherwise , upon this pretence of part , and pertinent , before the samine were instructed , any party might necessitate all his neighbours , to make patent to him their charter chists . the pursuer answered , that the defenders ought to take a term to produce , and that before certification , at that term he would prove part , and pertinent , and alleadged the practique in the case of the town of sterling , observed by dury , the . of iune . the lords sustained the defense , and would not put the defenders to take terms , till the lands in question were first proven to be part , and pertinent , and allowed the pursuer to insist primo loco in this declarator for that effect ; and as to the practique alleadged , they found in that case , the defenders alleadged upon no right , whereas the defenders propone here upon an expresse infeftment . laird kilburny contra the heirs of tailzie of kilburny , and schaw of greinock , eodem die . umquhile sir iohn crawford of kilburny , having only two daughters , the eldest married to blackhal , dispones his estate to margaret the younger , and to the heirs-male of her body ; which failing , to the eldest heir female , without division , throughout all the succession ; and failling the issue of this daughter , his eldest daughter , and her issue ; and failling of these , iordanhil and kilburny , their issue , all which failling his own heirs , and assigneys whatsomever . in which disposition there is a clause , that the said margaret , and the heirs of tailzie , should not alter the tailzie , nor dispone , or burden the lands ' or contract debts , whereby they might be apprized , and carried from the heirs of tailzie ; otherwise the contraveeners should lose their right ipso facto , and there should be place to the next heir of tailzie : but there is a clause subjoined , that the said margaret , and the heirs of tailzie might sell , dispone , and wodset the lands of easter greinock , and carsburn , and might burden the same with sums of money , for paying , and satisfying of the defuncts debts . the said margaret crawford having married the earl of crawfords son patrick ; they did sell the lands of easter crawford , and carsburn , to sir iohn schaw of greinock , at a rate far above the ordinar price , having expected a bargain with the town of glasgow , for a harbour there ; but the town having made another bargain with new-wark : greinock pursued kilburny , either to annul the minut , or fulfil the same , and to secure him , in relation to the clause de non alienando ; and to that effect , kilburny raises a declarator against the heirs of tailzie , to hear and see it found and declared , that by the right granted to the lady by her father , she might lawfully sell the lands of easter greinock , and carsburn . the heirs of tailzie compeared not , but greinock compeared , and was admitted for his interest , which was , that the processe being for his security , he might propone all the defenses , which he thought competent to the heirs of tailzie , and alleadged that the libel was no ways relevant , bearing a power to sell simply , but that it ought to have been conform to the clause in the disposition , viz. to sell , wodset , or burden , for payment of the defuncts debts , which did necessarly import , that no further could be sold , then what was sufficient to pay the debt , and therefore no processe , till the libel were so ordered , and the debts produced . the pursuer answered , that he opponed the clause , having two members , one bearing with full power to dispone the lands of easter grienock , and carsburn , and the other bearing to affect the same with sums , for paying of the defuncts debts ; which payment of the defuncts debts , was but the end , motive , and consideration for which the power was granted , but was no restriction , quality , or limitation of the power . dly , it did only relate to the second member of the clause , and not to the first member , which bore with full power to sell , and wodset , &c. which full power , is directly opposit to a limited power . dly , albeit the pursuer were obliged to instruct the debt , and apply the price for satisfying thereof , yet the clause doth not limit him to sell only so much as will be equivalent to the debt , but he satisfying the debt , more or lesse , hath acted conform to the clause , which uses to be so exprest in clauses of this nature , as that the heirs of tailzie may dispone so much as will be sufficient for payment of the debt , which not being exprest , these restrictive clauses being against common law , are strictissimi juris , and not to be extended beyond what the words expresly bears . thly , albeit the pursuer were obliged to instruct that there were debt , which might be a price , yet he were not obliged to instruct that they would be equivalent to this price , but to such a price as were not a third part within the ordinar rate , in which latitude , every seller hath power , and the alienation cannot be quarrelled ; and albeit that price would be more then the debt , yet these lands being two intire tenements , which none would buy by parcels , the pursuer could only be comptable to the heirs of tailzie for the superplus . the defender answered , that he opponed the clause , being one and copulative ; and that these lands being put per expressum in the clause , de non alienando , it could not be thought that the immediat following clause , would give the lady as much power , as to these lands , as if they had not been in the former clause , but the intent to satisfie the defuncts debt , being the last words in the clause , is relative to the whole clause , and natively resolves into an restriction , or quality , not bearing that they night be the more able to pay the debts , but for payment and satisfaction of the debts . the lords considering that heirs of tailzie were absent , and that as to them , the interlocutor would be in absence , found it most just , and safe for both parties to declare conform to the clause , that the alienation was valide for satisfying the defuncts debts , and found not that the debts behoved to be equivalent to this price . the creditors of john pollock contra james pollock his son , january . . the creditors of john pollock having adjudged his tenement for their debt , and james pollock having gotten a bond of . merks from his father , payable after his fathers death , which was granted after he was married , he did also apprize thereupon within year and day of the adjudication . the adjudgers raise a reduction of this bond , and the apprizing following thereupon , upon these reasons ; first , because the bond was granted for love and favour , and albeit it bear borrowed money , yet the said iames has acknowledged by his oath , that it was for love and favour , and so being granted betwixt most conjunct persons , after the contracting of their debts , it is null by the act of parliament , . the defender alleadged that the reason was not relevant as to such debts as were not constitute by writ , anterior to the defenders bond ; and as to any constitute by probation of witnesses , for proving bargains , merchant compts , and furnishing , wherein the probation , and decreet are both after the bond , they cannot be said to be anterior debts , because they are not constitute till sentence ; and albeit the sentence bear the debt to have been contracted before this bond , yet that cannot make them anterior debts , because writ cannot be taken away by witnesses , proving an anterior debt , which would be as effectual against the writ , as if the payment thereof had been proven by witnesses , and the time of bargaining , or furnishing , being a point in the memory , and not falling under the sense , no body would be secure who had writ , but that bargains , and furniture might be proven anterior thereto . the pursuer answered , that his reason was most relevant , and the constitution of the debt is not by the decreet , or probation , but by the bargain , and receipt of the goods , or furniture , after which no posterior deed of the debitor , can prejudge the creditors furnishers ; and albeit in many cases witnesses prove not , and witnesses are not admitted to prove , where writ may , and uses to be interposed , yet where the probation is competent , the debt is as well proven thereby , for the time of contracting as it is by writ , neither doth that ground , that writ cannot be taken away by witnesses , any way hinder , for the meaning hereof , is only that the payment , or discharge of that writ , must be proven by writ , and it were a far greater inconvenience , if after bargain , and furniture , any writ granted by the debitor , though without an onerous cause , should prejudge these creditors . the lords sustained the reason , and repelled the defense , and found debts constitute by witnesses to be effectual , from the time of contracting , and not from the time of probation , or sentence , to take away any posterior deed of the debitor , done without a cause onerous . the pursuer insisted in a second reason of reduction , that albeit these debts were posterior to this bond , yet the samine ought to be reduced , as being a fraudulent conveyance betwixt the father and the son , kept up , and latent in some of their hands , without any thing following thereupon , to make it known and publick , so that the creditors having bona fide contracted with the father , having a visible estate , were deceived and defrauded by this latent bond , if it were preferred to them . dly , this bond bears only to be payable after the fathers death , and so is but donatio mortis causa , and but a legacy ; or if it be inter vivos , it is much more fraudulent and latent . dly , bonds of provision , for love and favour granted to children , are accompted but as their legitime , still revockable by the father , and all debts contracted by him are preferable to them . the defender answered , that there was neither law , reason , nor custom to evacuat , or exclude bonds of provision , granted by parents ex pietate paterna , to their children , upon accompt of their fathers posterior debt , especially if the bonds were delivered , for there is no ground for any such thing by the act of parliament , . which relates only to deeds done after the debt contracted , neither is there any sufficient ground of fraud , that the bonds were not made publick or known , there being no obligement upon parties to publish the same , and creditors have less means to know the debts of other anterior creditors , then of children , having a just ground to suspect that they may be provided , and to enquire after the same , neither doth the delay of the term of payment import , either fraud , or that the bonds were donationes mortis causa . the lords would not sustatin the reasons of reduction upon the act of parliament , . or upon the general ground , that posterior debts were preferable to all bonds of provision , but ordained the pursuer to condescend upon the particular ground of fraud in the case in question . the collector-general of the taxation contra the director of the chancellery , ianuary . . the director of the chancellery being charged for the present taxation , imposed in anno . by the convention of estates , suspend on this reason , that he is a member of the colledge of justice , which by the act of convention are exempted . it was answered , that the members of the colledge of justice were never further extended then to the lords , advocates , clerks of session , and the writters to the signet . it was answered , that as the signet depends immediatly , and chiefly upon the lords of session , and writters thereto , are of the colledge of justice , so the chancellery depends in the same way upon the lords , who issue orders thereto from time to time , to give out precepts direct to superiours , or to bailliffs , sheriffs for infefting of supplicants ; and therefore the director of the chancellary , being writer in that office , must enjoy that priviledge , as well as the writers to the signet ; for albeit the director gives out precepts and brieves of course , without the lords warrand , so do the writers to the signet , give out many summons of course without warrand . the lords found the director of the chancellary to be a member of the colledge of justice , and therefore suspended the letters . the collector general of the taxations contra the master and servants of the mint-house . eodem die . the master of the mint did also suspend for him and his servants on this reason , that it was their ancient priviledge to be free of taxations , for which they produced certain gifts , by former kings of scotland , and decreets of the lords . it was answered , that the act of convention gives only exemption to the members of the colledge of justice , and discharges all former priviledges and exemptions . it was answered that acts of the convention must be understood salvo jure , which takes place even in acts of parliament . dly , they produced a late gift , granted by the king in anno . exeeming the master and servants of the mint from all taxation , imposed or to be imposed , which is past the exchequer and privy seal , so that the king who hath right to the taxation , might discharge the same to whomsoever he pleased . the lords in respect of the new gift , did exeem the officers of the mint , and suspended the letters . the daughters of umquhil chrichtoun of crawfoordstoun contra brown of inglistoun . eodem die . the daughters of umquhil crichtoun of crawfoordstoun , as heirs appearand to him immediatly after his death , gave in a supplication to the lords , desiring his charter-chist to be inventared and sequestrat . which the lords granted . but before the commission came to the house , william lowry the ladies nevoy , upon notice of the order , rode night and day , and prevented the same : so that all the writs were carried from crawfoordstoun to inglisstoun . thereafter the appearand heirs raised exhibition , ad deliberandum , against the lady and others , who produced three dispositions by crawfordstoun , in favours of brown of inglistoun , who had married one of his daughters , and the heirs of that marriage , whereby he disponed his estate of crawfoordstoun to them , with a bond of . pounds , the intent whereof seems to have been , that they might have appryzed , to make the disposition effectual , and she and william lowrie having deponed , acknowledged that the writs and charter-chist were carried out of crawfoordstoun to englistoun , but deponed that they knew not whether thir writs were amongst them or not , or whether they were formerly delivered to inglistoun himself , who is now dead : there was in the exhibition libelled a declarator , that the writs were null , as not delivered , and that being unwarrantably taken out of the defuncts charter-chist , after the lords order to the contrair , they ought to be put back and sequestrat , till the rights of parties were discust . the pursuers did now insist in this last member , to the which it was answered , that the writs being exhibit to the appearand heirs ad deliberandum , and they having seen them , they could have no further interest , but the lady crawfoordstoun tutor to her oy inglistoun , ought to have them up again , who produced them ; neither is it , nor can it be instructed , that these writs were unwarrantably taken out of the charter-chist , after the lords warrand , seing their oaths bore , that they knew not whether these were in the charter-chist or not ; and therefore , being a pupils writs , in his favours produced by his tutrix , they cannot be taken from him or sequestrat , unless the unwarrantable medling therewith were proven . dly . by a disposition of the moveables to the lady produced , granted by the defunct , it bears a delivery of the keys of the charter-chist to her , to be delivered to inglistoun with the charter-chist , which is equivalent as if they had been delivered to inglistoun himself , and she was content to be enacted to produce them when ever the lords found cause . it was answered , that the lords warrand being anticipat , and the bulk of the writs in the charter-chist carried away , it must be presumed , that these dispositions , and that bond was amongst the rest , and so must be returned in statu quo . the lords found this alleadgance relevant , unless the defenders would instruct that these writs were not in the charter-chist the time of the order , but out thereof in inglistouns hands : and yet they allowed the parties presently to dispute whether , albeit these writs were in the charter-chist , inglistoun or his tutrix should have them up , or if they should remain sequestrat . mr. iames drummond contra stirling of ardoch . ianuary . . mr. iames drummond being donator to the escheat of the laird of glenegies , pursues exhibition and delivery of a bond granted by george mushet to iames henderson , containing . merks principal , and by him assigned to umquhil glenegies , and thereby falling under his escheat , and the bond being produced by ardoch , the donator craves the same to be delivered to ardoch . it was answered by ardoch , that the bond ought not to be delivered to the donator , because it cannot belong to him , in respect that mushet , who by the assignation became debitor to glenegies , had two bonds granted by him to glenegies , containing . merks , wherein ardoch is cautioner , whereby this bond of . merks , due to glenegies , was compensed long before glenegies rebellion . it was answered for the pursuer . that compensation is not relevant , unless it had been actuallie proponed in judgement , or extrajudiciallie stated , by the parties offering and accepting the compensation . dly , that the alleadgance is no wayes relevant against the donator , who has right to the debts due by the rebel . dly , ardoch had no interest to alleadge the compensation , which could only be proponed by mushet the creditor , and not by ardoch who is cautioner to him . the defender answered , that compensation is competent ipso jure , from the time that the sums be mutuallie due by the debitor and creditor , in the same way as if they had granted mutual discharges each to other ; and therefore when an assigney pursueth or chargeth , compensation is always sustained against him upon debts due by the cedent before the assignation , albeit the compensation was not actually stated before the same ; neither is the donator here in better case then an assigney , so that when he pursues mushet debitor to the rebel , mushet may alleadge compensation upon the like debt due to him by the rebel before the rebellion , and the defender hath good interest to propone the compensation , because he is cautioner to glenegies for mushet , and if mushet be forced to pay the donator , without allowing compensation , ardoch will be necessitat to pay mushet , to whom he is cautioner , and therefore hath good interest to propone that by the concourse of the two debts , they are both extinct , and he is not obliged to deliver up to the donator the bond constituting mushets debt . the lords found the alleadgance proponed for ardoch relevant and competent , and that compensation was relevant against the donator upon debts due by the rebel before rebellion . sir iohn weims contra farquhar of towley . eodem die . sir iohn weims having charged farquhar of towley for the maintainance of his lands deu in anno . he suspends on this reason , that by the act of parliament . appointing this maintainance to be uplifted by sir iohn weims , singular successors are exeemed ita est , in one part of the lands he is singular successor to sir robert farquhar , of another part , he has a disposition from his father , for sums of money particularly exprest in the disposition . it was answered to the first , that the exemption is onlie in favours of singular successors , who had bought lands the time of the act , ita est , sir robert farquhars disposition is after the act : neither doth it appear that a competent price was payed therefore , and as for his fathers disposition , though prior to the act , yet the narrative thereof , betwixt father and son , will not instruct the debts , unless it be otherways instructed , nor can it be made appear to be a just price . the lords found that the exemption could not extend to singular successessors , acquiring after the act , for if at that time the lands were in the hands of him who was heretor in anno , or his heirs , nothing ex post facto done by them , can prejudge the right constitute by the act , which doth not bear an exemption to singular successors who should acquire , but only to these who had acquired . they did also ordain the defender to instruct the cause onerous of his fathers disposition , but would not put the suspender to disput the equivalence of the price , unless it were instructed that the dispositions were simulat , there being a great latitude in prices , according to the pleasure of parties . alexander chisholme contra lady brae . ianuary . . alexander chisholme having apprized certain lands from the heirs of sir alexander frazer of brae , and thereupon insisting for mails and duties . compearance is made for the lady brae , sir iames his relict , who being provided by her contract of marriage to certain lands , with an obligement that they should be worth . merks yearly , here husband did thereafter , during the marriage , grant her a tack of the whole remanent lands he had then , with a general assignation and disposition omnium bonorum , the tack bears to be for love and favour , and that the lady may be in the better capacity to aliment his children , and bears . pound of tack duty , in case there be children , and a duty equivalent to the rent of the land if there be none , the entry to the tack is at the next term after the granting thereof , and not at the husbands death . upon this it was alleadged for the lady , that she ought to be preferred to the mails and duties of the lands in question , by her tack cled with possession by her husbands possession before contracting of thir creditors debt , which must be understood her possession stante matrimonio , and by her own possession , after her husbands death , before chisholms apprizing or infeftment . it was alleadged for chisholme , that the alleadgance founded upon the tack , ought to be repelled . first , because it is a donation betwixt man and wife , null of it self , nisi morte confirmetur , and so is still ambulatory , and in the husbands power , during his life , and is in the same case as bonds of provision granted to children , and keeped by their father , which being still in his power , any debt contracted after would be preferable thereto : so here this tack being in the husbands power , the contracting of a debt thereafter is preferable thereto , and is an implicit revocation thereof . dly . this tack being a most fraudulent , latent and clandestine deed betwixt man and wife , whereupon nothing followed in her husbands life , the creditors having no way to know any such thing , and having contracted bona fide , are insnared and defrauded thereby ; and the lords having declared , that in regard they had reponed the lady against a former decreet : she should now dispute her right of the tack , as in a reduction , against which , this would be an unquestionable reason , that it is a latent , fraudulent contrivance , containing a disposition omnium bonorum . it was answered for the lady to the first , that donations betwixt man and wife , are not by our law and custom null , but are valid , a principio , unless they be actually revocked : and albeit implicit revocations has been sustained by dispositions , or infeftments of the same lands to others , yet never by a personal bond or contracting of a debt , posterior . to the second , the ladies right can never be interpret in fraudem creditorum , there being no creditors the time of the granting thereof , and the husband being free , and incapacitat by no law , an infeftment of the remainder of his estate to her , so cautioned as this is , is both legal and favourable : and albeit in the same , there be a disposition omnium bonorum , which cannot reach to goods acquired after the debts , yet the tack is valid & utile per inutile non vitiatur . dly , albeit this tack bear to be a donation , and for love and favour ; yet it is neither fraudulent nor revockable , because it is donatio remuneratoria , granted by the husband , who was obliged to make up the joynture lands , contained in the contract of marriage , to . merks , of which they came short of four at the beginning , and other four have been evicted . it was answered for chisholme the creditor , that this alleadgance was no ways competent against him , who is a creditor , contracting bona fide ; but the lady ought to pursue her son , as representing his father , for fulfilling her contract , or at least till that be declared against the heir , who is the only competent party , the creditor must possess conform to his right . dly , whatever was the husbands obligement , the husband hath not granted this tack in remuneration or satisfaction thereof , but expresly for love and favour , without mention of any other cause . it was answered , that the expressing of love and favour , which may relate to the general disposition , cannot exclude other causes ; and albeit it make the tack a donation , yet it is well consistent to be a remuneratory donation , which is not revockable . the lords found the alleadgance relevant , that this was a remuneratory donation , and that there was also much wanting of the contract of marriage , and found it competent against this apprizer , and superceeded to give answer to the other points , that if it were not proven remuneratory , whether it could be reduced as latent and fraudulent , at the instance of posterior creditors , or as being in the husbands power , was indirectly revocked , by contracting of the posterior debt , having no more estate to burden with his debt . boil of kelburn contra mr. iohn wilkie . eodem die . boil of kelburn having gotten a commission from the presbyterie of irving , to uplift some vaccand stipends , he gave bond to pay to them . pounds therefore , and being thereafter charged by mr. iohn wilkie , collector of the vaccand stipends , kelburn payed him . merks , whereupon mr. iohn gave kelburn his discharge of these vaccand stipends , and of his bond to t●e presbyterie , with absolute warrandice of the discharge , especially bearing to relieve and free him of the bond to the presbyterie , thereafter kelburn was decerned to make payment of that bond , after a long debate mr. iohn wilkie compeared , whereupon kelburn charged mr. iohn to pay him the . pounds , with annualrent and expences● upon the clause of warrandice , mr. iohn suspends on these reasons . first , that he was circumveened , never having read the discharge . dly , that clauses of warrandice ( however conceived ) are never extended further by the lords , then to the skaith and damnage of the party warranted , which if it be componed for never so little , the warrandice reacheth no further then the composition , and it can never be extended ad captandum lucrum ex alterius damno , so kelburn having gotten stipend worth . pounds , he cannot seek the same back again , but only the . pound he payed out . it was answered , that albeit general clauses of warrandice be so interpret , yet this is an express and special ●action , to relieve kelburn of this bond , which , if it had been per se , would have been valide , although without an onerous cause , and cannot be lesse valide , having so much of an onerous cause . the lords did take no notice of the reason of circumvention , mr. iohn being known to be a provident person , but restricted the warrandice to the . pounds received by the suspender , and annualrents thereof , and the expences of plea against the presbyterie , and found it no ways alike , as if it had been a paction apart , but being a speciality in a clause of warrandice , it was to be interpret accordingly , pro damno & interesse only . lady braid contra earl of kinghorne . eodem die . there is a bond . pounds granted to the earl of buchan principal , and the earl of kinghorne cautioner to umquhil mo●ison of darsie , and dam nicolas bruce , now lady braid , then his spouse , bearing annualrent , and a clause stating the principal sum after ilk term , as a stock to bear annualrent , and termly penalties in case of failzie . this being called in praesentia , it was alleadged for kinghorne , that annual of annual was a most usurary paction , rejected by all law , and our custom , and cannot subsist in whatever terms it be conceived , otherwise by the like paction , the annual of that annual might bear annual , and so perpetually multiply ; and if this were sustained , there would never be a bond hereafter in other terms . it was answered , that bonds of corroboration , stating annualrents into principals by accumulation , have ever been allowed , and though that be done after the annualrent is become due , making it then to bear annualrent , there is no material difference to make it bear annualrent by a paction ab ante , but not to take effect till the annualrent be effectually due . it was answered , that custom had allowed the stating of annualrents after they were due , into a principal , because then being presently due , they might instantly be exacted ; but law and custom hath rejected the other case . the pursuer further alleadged , that she being a widow , and this her liveliehood , annualrent at least should be due for the annualrents , seing she is ready to depone , that she borrowed money to live upon , and payed annualrent therefore , or otherwise the termly failzies ought to be sustained . the lords sustained the defense , and found no annualrent due of the annual , nor termly failzies , seing there was no charge at the pursuers instance against this defender , and that he was a cautioner , but modified for all . pound of expences . bell of belfoord contra l. rutherfoord . ianuary . . bell of belfoord being infeft in an annualrent by the deceast lord rutherfoord , out of certain lands , pursues a poinding of the ground . compearance is made for my lady rutherfoord , who alleadged she ought to be preferred , as being infeft in an annualrent of . merks yearly , upon her contract of marriage , before this pursuer . dly , that she ought to be preferred , for an annualrent of . merks yearly of additional joynture , wherein she stands also infeft publickly ; and albeit her infeftment be posterior to the pursuers , yet his infeftment being base , not cled with possession , before her publick infeftment , she is preferable . the pursuer answered , that before the ladies infeftment on her additional jointure , he had used a citation for poinding of the ground , and is now insisting for a decreet thereupon , which must be drawn back to the citation , and is sufficient to validat the base infeftment , that it be no more from that time forth repute clandestine . which alleadgance the lords found relevant , and preferred the pursuer to the ladies additional jointure . it was further alleadged for the lady , that she was served , and kenned to a terce of the lands in question , and must be preferred , as to a third part of the profits of the lands , conform to her infeftment upon her terce . the pursuer answered , that her service , kenning and infeftment of terce , are posteriour to his infeftment of annualrent , and posterior to his citation foresaid thereupon . it was answered for the lady , that her terce being a right constitute by law , by the death of her husband , albeit it be served and kenned after , these acts are but declaratory of her right , by her husbands death , and do constitute her right ▪ not from the date of the service , but from her husbands death , which is before the pursuers citation , so that his infeftment , granted by her husband , before his death , not having been cled with possession in the husbands life , it remained at his death as an incompleat right , which cannot exclude her from her terce . it was answered , that a base infeftment is of it self a valid right , although by a special act of parliament posterior , publick infeftments are preferred thereto , unless the base infeftment hath been cled with possession , which cannot be extended beyond the terms of the act of parliament , and so cannot be extended to a terce , but as the base infeftment would have been a sufficient right , against the husband and his heirs , so it must be esteemed as debitum reale , affecting the ground , and his lady can have no more by her terce then the third of what was free unaffected before his death . the lords found the base infeftment sufficient to exclude the terce pro tanto , and that as to the husbands heir or relict , it was a sufficient right . stirling contra heriot . eodem die . stirling son to commissar stirling , pursues for a modification of an aliment out of the liferent of helen heriot , his fathers wife , as having the liferent of the whole estate . the lords sustained not the aliment , in respect the defenders liferent was very mean , and the pursuer was major , and keeped a brewary , and she kept one of his children , and that he was not frugi aut bonae famae . robert brown contra iohnstoun of clacherie . february . . robert brown pursues iohnstoun of clacherie , for payment of . pounds contained in a bill of exchange , subscribed before two subscribing witnesses , and marked with clacheries hand , there was several other bills for greater sums produced , marked with the like mark , and none compearing for clacherie . the lords caused examine the witnesses insert , who deponed that clacherie was accustomed so to subscribe , and one of them deponed , that he saw him put to this mark to the bill in question ▪ several others deponed , that they had accepted such bills in regard of his custom , and had obtained payment from him , without any debate thereupon . the question arose to the lords , whether a sum above an hundred pound could be proven by such a writ , that had only a mark , and having demured upon it before , till they should try if any such case had been sustained formerly , and none having been found sustaining any writ not being subscribed with the whole name , or at least the initial letters of the debitors whole name . it was offered by some , that clacheries oath might be taken ex officio , or de calumni● , not simply to refer the debt to his oath , but whether that truly he set to this mark , before these witnesses , but robert brown being a dying , the lords would not defer , but decided the case , and found that this writ being a bill of exchange among merchants , and clacheries custom so to grant bills of greater importance then this , being clearly proven , and none appearing for him , they decerned against him upon the bill and testimonies , many of the lords being of different judgement , and that it was of dangerous preparative to encourage forgerie , but it was sustained only in all the particular circumstances aforesaid , and not to be a general rule . iohn boswel contra town of kirkaldie . eodem die . the town of kirkaldie having given a in bill to stop the interlocutor of the . of iuly . of the process against them , and having objected against that article of the libel , whereby iohn bosewel craved repetition of what he was stented for , for charges of commissions to the convention of burrows , upon this ground , that the convention of burrows was authorized by acts of parliament , and commissioners is ordained to meet yearly thereat , which being a burden arising from the authority of parliament , these who have tenements in the town , or lands in the burghs lands are lyable pro rata , and did again resume the debate anent the second ministers stipend , and being heard thereupon in presentia . the lords adhered to their former interlocutor anent the teinds , and found nothing could make iohn bosewel lyable for any part of the second ministers stipend , except what was due by law out of his teinds , or what was due by his own consent , or by custom of . years , and found him not lyable for charges of commissioners of burrows , which though authorized by parliament , yet the intent thereof was trading ; and though the convention might equalise the proportion of taxations amongst burghs , which did concern all having land therein : yet that being a case meerly contingent , they would not upon consideration thereof , put any part of the burden upon these who had no trade . iohn boswel contra lindsay of wormistoun . february . . john bosewel being appointed commissar of st. andrews by the king , and before the restitution of bishops , after their restitution , the arch-bishop named lindsay of wormistoun commissar , and agreed him and iohn bosewel , on these terms , that iohn should have the half of the profit of the place , whereupon wormistoun grants a bond to iohn bosewel , to compt and reckon for the profits of the half , and to pay the same to iohn bosewel termly , and quarterly , and if any question should arise betwixt them in the accompt , that he should submit himself to the arch-bishops determination , and acquiesce therein . iohn bosewel charges upon his bond. wormistoun suspends . it was alleadged for wormistoun , that his bond did contain a submission to the arch-bishop , who is thereby the only judge constitute in these accompts . it was answered , that this bond was only subscribed by wormistoun himself , and a submission must be subscribed by both parties , and that it behoved to be understood to last but for a year , and not to import a liferent submission , neither could it be exclusive of the lords to decline their authority . the suspender answered , that this submission being a provision in the bond charged on : which bond being accepted by the charger , his acceptance makes his consent to the submission , in the same way as if he had subscribed the same : and there is no law to exclude a submission for two years , or a lifetime , more then for one ; and it is not a declining of the lords jurisdiction , it being most ordinarly sustained , no process , because there is a submission standing . the lords found that there is here a submission , not ending by a year , and accepted by the charger , and that thereby the arch-bishop in the first place , ought to give his sentence , which if he refused , or if it was iniquous , the lords would cognosce thereupon , as in the case of other arbiters , and assigned therefore to the arch-bishop , the first of iune to determine thereupon . kilburnie contra heirs of tailzie of kilburnie . eodem die . the laird and lady kiburny did insist in the declarator against the heirs of tailzie , dispute the . of ianuary , and according to the interlocutor then given , gave in a condescendence of kilburnies debt , amounting to fifty one thousand pound , and that the rent of the land did not exceed thirty six hundred merks . it was alleadged , that the annualrents were here accumulate for five years after kilburnies death , which ought not to be , the lady having possession of the lands , and ought to have payed the annualrent , and the clause impowering her to sell , is only for satisfying kilburnies debt , due the time of his death , which cannot extend to annualrents , due after his death , and that these annualrents were truly payed by the lady , and so could not come in as a debt upon the estate . dly . the moveable debts ought to be satisfied by the executory , which must first be exhausted , the lady her self being executrix , and so cannot burden the heirs of tailzie , or the estate ; for if they , had been distrest , they could have craved payment from her , quoad vires inventarij , so that the principal sums not extending to . pounds , and the lands being bought by greinock , at the rental of . merks , and . merks being gotten more for the lands then the debt , the power of selling granted to the lady in the disposition , can never extend to so vast a difference , albeit a small difference of the price would not be noticed : and lastly it was offered to find a party , who would take a wodset of the lands , in satisfaction of all the defuncts debts , so that the lady cannot , in prejudice of the heirs of tailzie sell , where wodsetting may do the turn , and the wodset should contain a reversion , and no requisition ; and whereas it might be pretended that the matter was not intire , because the lands were actually sold to greinock , he offered to consent , and renunce his bargain . it was answered , that this clause de non alienando , being against the nature of property , was odious , and not to be extended , and the faculty of selling , or affecting , being suitable to the nature of property was favourable , and not to be restricted further then the defuncts own words , and termes , who having given full power to his daughter to sell , or affect the lands named , for payment of his debts , and not having said ( to sell , or burden so much of the land as were equivalent to the debt ; neither having said so much of the debt , as exceeded his moveables , or his moveables being first exhausted ) it is most rational , and to be presumed to be his meaning , that as to his moveables he did not burden her at all ; and that this part of his lands he set apart for his debt , for he understood his debt to be about the value of it , otherwise he could have set apart less land , or could have more limited the faculty 〈◊〉 disposing ; but the principal sums of this debt being . pounds , and the rental not being pretended to have been above . merks , the principal would amount to the value of the land at . years purchase , and there being unquestionably a latitude to the feear to sell at such a price , as in discretion he thought fit , though he had sold at twelve years purchase , or not under the lowest rate of land ; neither could the buyer be quarrelled , nor the seller , as incurring the clause irritant , and therefore the lady having sold at a far greater rate then the ordinar , greinock and the town of glasgow being both dealling for the land , they to make a harbour there , and he not to suffer them , in prejudice of his town , and harbour in greinock , there is no reason to exclude the lady from the benefit of her bargain , or to necessitat her to quite the same , and give only a wodset , seing the clause gives her power both to sell , and affect , and does not limit her to either of them . the lords repelled the defenses , a●d declared that the lady had warrantably sold these lands , and that the principal sums being so considerable , although the rental had been more , they were sufficient ▪ and found that the clause laid no necessity upon her to exhaust the moveables , and that she might thereby wodset , or sell at her pleasure , iames deanes contra alexander bothwel , february . . alexander bothwel of glencorsse being conveened before the commissars of edinburgh , for slandering iames deanes procurator before the commissars , in calling him a false knave , publickly in the parliament house , and at the crosse ; the samine being proven by witnesses , he was decerned to stand at the kirk door of glencorsse where both parties dwelt , and acknowledge his fault , and to pay . pound to the poor , and . pound to the party . bothwel suspends on these reasons , first , that the commissars could not ordain him to stand at an congregation , which is an ecclesiastical censure . dly , that they could not also fyne him to the poor , nor decern any thing to the party , but the expences of plae , seing there was no other damnage lybelled nor proven . dly , that the witnesses were not habile , being the pursuers own servants . the charger opponed the decreet wherein the suspender was compearing , and objected nothing against the hability of the witnesses then , and therefore cannot now quarrel their testimonies , and that it was most proper for the commissars to cognosce upon slander or defamation , neither was his standing in order to repentance but in order to restoring the party to his fame . the lords repelled the reasons , and sustained the decreet in all points . cleiland contra stevinson . eodem die . william cleiland charges iohn stevinson upon a bond of . merks , bearing annualrent , he suspends on this reason , that the charger was owing him more for victual , being his tennent , which was now liquidat before this time , but after the date of this bond , and craved compensation thereupon , not only from the date of the liquidation , but from the time the victualrent was due . which the lords sustained . rule contra rule , february . . margaret rule having made a consignation of certain bonds , and in general of all other rights , with a disposition of all her goods to umquhile robert rule her brother , who having named mr. david rule his executor , and universal legator , did upon his death-bed acknowledge , that his sisters disposition was in trust to her own behove , granted upon that consideration , that she being a bastard , unless she disponed in her leige poustie , her means would be confiscat by her bastardy , she thereupon pursues the said mr. david rule to deliver back her assignation , with her own writs . the defender alleadged the lybel was no way relevant ▪ there being nothing libelled but the defuncts acknowledgement of a trust upon death-bed , and that offered to be proven by witnesses only , but first , the trust behoved to be declared by a declarator , and not thus by an exhibition . dly , trust is only probabable scripto vel juramento , being a matter of so great importance . dly , some of the rights assigned , and disponed , are heretable , and nothing done upon death-bed can prejudge the defuncts heir thereof . thly , an extrajudicial confession without writ , albeit it were acknowledged , hath no effect , for it cannot be known quo animo , such words might have been exprest . the pursuer answered , that the trust might be very well lybelled , with the exhibition , and albeit the defuncts confession would not alone be sufficient to prejudge his heir , yet it may very well stand as an evidence of trust , which cannot be astricted to probation by witnesses , but hath ever been found probable by other evidences , especially where the person trusted is dead , and the pursuer condescends upon these evidences and adminicles of trust. first , communis fama . dly , the assignation and disposition bears no reservation of the disponers liferent , and yet she continued still in possession , and her brother ( whom she entrusted ) never medled , which he would not have done , if the disposition had been for a cause onerous , or to his own behove . dly , he did solemnly , in presence of witnesses above exception , acknowledge the trust on his death-bed . the lords sustained the summons , and would not astrict the pursuer to prove by write , or oath of party , but ordained witnesses to be examined ex officio , anent the evidences and adminicles condescended on by the pursuer . black contra dawid french ▪ february . . the lands of miln-burn being holden waird of the dutchess of hamiltoun , after miln burns death the duke and dutchess grants a gift of the waird to mr. ●o●ert black , who pursued for mails and duties ; and likewise david french having appryzed from miln burn , and having charged the dutchess before miln-burns death to receive him , he pursues the tennents for mails and duties , who suspend upon double poynding . in the competition it was alleadged for the appryzer , first , that his appryzing being a judicial sentence , did denude miln-burn the vassal , in the same way as if miln-burn had resigned in the dukes hands , in favours of david french , after which miln burn was totally divested , and no casualty could befall to the superior by his death , ita est that law hath stated a decreet of appryzing in the same case as an resignation accepted , for though the vassal , against whom the appryzing was led should die , the appryzer will summarly upon a charge obtain himself infeft , so that the former vassal was totally denuded . dly , here not only there is appryzing , but a charge against the superior , which fictione juris is in all points , as if the appryzer were actually infeft , and therefore the appryzer , who first charges , albeit he in●i●t not to use any further diligence , is ever preferred to all other appryzers infeft after . it was answered for black the donator , that he ought to be preferred , because the superior , who gave his gi●t , could not want a vassal , nor loss the casualty of his superiority without his own fault , but the appryzer did not become vassal , neither by the appryzing , nor by the charge , nor was it ever found that the liferent , or waird of an appryzer fell , unless he had been actually infeft , and it would be of very great disadvantage to creditors , if the naked charge should make their vvaird to fall , which they may pass from at their pleasure , therefore seing the appryzer could not be vassal , the former vassal behoved to remain vassal ; and seing the superior could not have a waird by the appryzers death , he behoved to have it by the former vassels death ; and albeit the charge be ●qulparat to an infeftment , as to the competition of appryzers , whom the superior may not prefer , but according to their diligences , yet it is not holden as an infeftment to any other case , for thereupon the appryzer cannot remove the tennents , neither is the appryzing equivalent to an resignation accepted , albeit it being an incompleat legal diligence , it may be compleated against the superior after the vassals death , yet not so as if the superior had received a resignation from the appryzer , which is the superiors voluntar deed , but there is nothing upon the appryzing to force him to give infeftment to the appryzer , until conform to the act of parliament , a years rent of the appryzed lands be offered to him , and therewith a charter offered to subscrive , which being done , upon his delay , fault , or contumacy , he may be excluded from the subsequent casualties , and cannot thereby be gainer , in prejudice of the appryzer , but otherwi●e without his fault , he cannot loss the casualties . it was answered for the appryzer , that the appryzing , and charge did state the appryzer as vassal , and there was no inconvenience thereupon to creditors , more then if they had been actually infeft . dly , our statute hath provided contrair to the common feudal customs , that superiors must receive strangers , being creditors appryzing , for payment of a years rent , so that the superior can have no more but the years rent , and not the subsequent waird also , and there being mutual obligations between the superior and the appryzer , introduced by the statute , viz. that the superior should receive the appryzer , and that the appryzer should pay to the superior a years rent , as in all mutual obligations , so in these , the delay of the one party in performance of his obligation , doth stop the execution , and effect of the other obligation to him , ay and while he perform , but quando mora purgatur , by performance of the one party , both obligations are effectual as a principio , and therefore , albeit the appryzer had been obliged to pay a years rent when he were in●eft and did it not the time of the charge , yet now he offers to do it at the bar , unde purgatur mora , and the superior must receive him in obedience to the charge , which must be drawen back to the charge , and the lords cannot but find the le●●ers , that is to say the charge orderly proceeded , neither can there be any fault in the appryzer , that he did not then offer a years duty when he charged ▪ because it was not liquid nor constant what the years duty was , and therefore he was only obliged to do it after the liquidation , and modification of the lords ; and lastly he having proceeded as all other appyzers have done by perpetual custom , he was in bona fide to acquiesce . it was answered for the donator , that this former ground holds still good , that the casualties of his superiority cannot be lost to him , without his delay or fault ; and the case is no way here as in mutual obligations , but as in a conditional obligation , for the statute obliges the superior to receive the appryzer , he paying a years rent , which being per ablativum absolute positum , is ever interpret as condition , as if it had said , the superior shall receive him if he pay a years rent ; but by the statue there is no obligation put upon the appryzer to pay the years rent , for the payment is in condition and not in obligation , and the appryzer may ever forbear to seek the infeftment , and yet will obtain malls and duties , and so will possess , and exclude the superior , both from the casualities of his superiority , and his years rent , therefore by the statute there is only a conditional obligation upon the superior , to receive the appryzer upon payment of a years rent ; now the nature of all conditional obligations is , that pendente conditione & ante purificationem nulla obligatio , so that till that time whatever occurs is freely the superiors : and albeit the lords will now , upon offer of a charter , and the years duty , give a sentence , the ordinar stile whereof , is finding the letters orderly proceeded , without putting the appryzer to a new charge , yet they do not thereby find , that at the beginning the charge was orderly without the offer , but that now it becomes orderly by the offer , and therefore hath only effect from the offer ▪ and not from the charge , and prejudges not the superior of the waird falling before the offer . dly ▪ the superior at the time of the charge offered obedience , upon production of a charter , and a years duty to the messenger who charged him , conform to an instrument produced , the appryzer himself not having appeared . the appryzer answered , that the superior ought to have drawen up a charter , and suspended , consigning the charter in the clerks hands in obedience , to b● given up to the appryzer after payment of the years rent , conform to the lords modification ; and it was not enough to offer obedience to a messenger , or to require a years rent , which is not liquid but by the lords sentence ; and further alleadged that it was lately found , that a liferent escheat falling after a charge , did not exclude the appryzer , and there can be no reason , but the same should be in a waird . it was answered , that no such practique was produced , nor acknowledged , and that in a liferent escheat , the vassal ( against whom the appryzing was led ) might collude , and might let himself go year and day at the horn , of purpose to prejudge the appryzer , but the waird falling by his de●th , there is no suspition of collusion , and the waird is due by the reddendo of the charter , but the liferent is only due by an extrinsick law , and custom . the lords found that the charge did no● st●●e the appryzer as vassal , so that the waird would have fallen by his death ; neither did they consider the inconveniency of the superior , as wanting the superiorities by both parties , if he were contumacious , aut in culpa : but they found that the superior was not in culpa , or in mora , until the appryzer presented to him a charter upon obedience , and offered some money for his entry , and caution for what further the lords should decern , and did not find the superior obliged to require the vassal so to do , and therefore found the superior here , not in mora aut : culpa , and found the waird to belong to him , and preferred the donator , and declared they would follow it as a rule in all time coming . thomas cowan contra young and reid , eodem die . adam young having married his daughter by the first marriage , to thomas cowan ▪ and given him two thousand merks of tocher , in satisfaction of all she could claim ; did by a second contract of marriage , provide a thousand merks to the heirs of that marriage , and all his conquest during the marriage , after which contract , he gave a bond of . pound to his daughter of the first marriage , bearing to be payed in parcels as he was able , and after the bond , he disponed his goods and gear to his daughter of the second marriage : now the daughter of the first marriage , pursues the daughter of the second marriage to pay the bond , as she who intrometted with the defuncts goods . the defender alleadged absolvitor , because this bond being granted without an onerous cause , after the provision of the second contract of marriage , providing all the goods conquest to the heirs of the second marriage , who were thereby their fathers creditors , for fulfilling of that provision , no voluntar d●ed done without a cause onerous by their father , in favours of his daughter , of a former marriage could prejudge them , or burden the moveables acquired in that marriage . it was answered , first , that the provision being to the heirs of the second marriage , they being heirs , could not quarrel , but were obliged to fulfil their fathers obligation , whether for a cause onerous or not . dly , such clauses of conquest are ever understood , as the conquest is at the acquirers death , but does not hinder him any time of his life to dispose , or gift at his pleasure , which if he might do to any stranger , there is neither law or reason to exclude him to do it to his daughter : and albeit it might be interpret fraud , if nothing were left to the daughters of the second marriage , yet where they have a special provision , and something also of the conquest , with this burden , their father could not be found thereby to defraud them , or to hinder him to use his liberty . which the lords found relevant , and sustained the bond. buohan contra taits . february . . . in anno . george tait of pirn gave a seisine propriis m●nibus to george tait his eldest son , and a bond of that same date , bearing that he had given seisine , and obliging him to warrand the same , reserving his own liferent : thereafter in anno . he contracts in marriage with ianet buchan , and for two thousand and five hundreth merks of tocher , obliges him to infeft her in the same lands of pi●n , wh●rein his son was infeft , whereupon she now pursues reduction of george tait youngers infeftment against his daughters , upon these reasons . first , that the seisine propriis m●nibus , was only the assertion of a nottar without a warrand . dly , that the seisine had not four witnesses . dly , that this was a clandestine latent right , most fraudulent betwixt a father and his appearand heir , never having been published , or taken effect by any possession , and cannot prejudge this pursuer , who is a most priviledged creditor , and brought a competent tocher with her . thly , that this being an infeftment by a father to his appearand heir , then in his family , it was but as the legittime of children , which is still ambulatory at their parents disposal , and so must be affected with this posterior burden of the fathers marriage . it was answered to the first , that the bond of the same date with the seisine , acknowledging the same is a sufficient adminicle , and is equivalent , as if the father had subscribed the seisine . to the second , there is no law requiring ●our witnesses to a seisine , for that act of parliament is only where a party subscribes by a nottar , but relates not to nottars instruments subscribed by themselves , upon warrands , or adminicles , without which they are not valid with . witnesses , and without which two witnesses are sufficient . to the third , this infeftment is no ways fraudulent , or latent , seing it is registrat in the register of seisines , and reserves the fathers liferent , whose possession is the sons possession , and cannot be pejudged by a deed so long posterior thereto . to the last , infeftments taken to children by parents being registrat by parents , can never be recalled . the lords assoilzi●d from all the reasons of reduction , and sustained the defenders seisine . pot contra pollock , february . . umquhile iohn pollock having granted a bond of . merks to iames pollock his second son of the first marriage , and he having adjudged thereupon ; pot as assigney by his wife to her provision , and the creditors debts , having also appryzed , raises reduction of iames. pollocks bond , and adjudication on this reason , that the said bond was without a cause onerous , given by a father to a son , as is clear by the sons oath , taken thereupon , and therefore a posterior debt lent by creditors , bona fide to the father , is in law preferable thereto . dly , this bond to a son can be but de natura legittimae having no cause onerous , as if it had born for his portion natural , and bairns part : in which case it is revockable by the father , and the fathers creditors ( though posterior ) are preferable thereto . dly , this bond is reduceable , super capite doli , as being a contrivance betwixt a father and a son , to insnare creditors to lend to the father , who then drove a great trade , which must be inferred from these circumstances . first , the son was fori● familiat and sufficiently provided before . dly , the bond bears no annualrent , and the term of payment is after the fathers death , and remained ever latent betwixt the parties , without any thing following thereupon , and these debts were all contracted within a very little after this bond , which was only a year before the defuncts death . the defender answered , that the reasons are no ways relevant , for there is neither law nor reason to hinder any person to give bonds or gifts freely , there being no impediment the time of the granting , neither hath the law any regard to posterior creditors , but in personal debts , whether for causes onerous or not , the first diligence was ever preferable ; nor was it ever heard that a posterior onerous obligation did reduce , or was preferred to a prior gratuitous obligation , upon that ground that the prior was gratuitous . and to the second , albeit this bond were in satisfaction of a portion natural , as it is not yet , being delivered to the son , who i● forisfamili●t , he can be in no other case then any other person to whom a bond were granted , without an onerous cause . as to the third , dolus non presum●tur , and all machinations being only animi , are only probable scripto vel juramento , and can be inferred by no circumstances . the pursuer answered , that albeit in dubio dolus aut c●lpa non pre●umitur , yet it is doubtless probable otherwise then by the oaths of the parties , whereunto tru●● is never to be given , in relation to their own shame , contrivance , or fraud , and therefore mat●ers of fact do neces●arly infer , and presume fraud in many cases , and in none more then this , where the deed was clandestine , and latent betwixt father and son , and where the fathers estate was thereby rendred insuffi●ient to pay both his d●bt , and the others contracted shortly therea●ter ▪ and if it were sustained that such latent rights betwixt conjunct persons were valide in prejudice of posterior creditors , contracting bona fide , and not knowing the same , all commerce behoved to cease , for every man might give such bonds to his children , and continue to trade , and to borrow money , and upon the childrens anterior bonds be totally excluded . the defender answered , that our law by a special statute , in anno . having determined the cases of presumptive fraud , and extended the same only to anterior creditors , without mention of posterior creditors , the same might be thought to be of purpose omitted , and cannot be extended by the lords . the lords found the matter of fact , and circumstances , alleadged relevant to infer a presumptive fraud , and contrivance betwixt the father and the son , which did insnare the creditors who continued to trade , and therefore reduced the same as to the creditors , and preferred them , and the relict in so far as she was a creditor , but not for any posterior or gratuitous provision to her , or to her children , but they did not find the two first grounds relevant to prefer a posterior onerous obligation to a prior gratuitous , or that this bond was as a ●egit●ime revockable ; and the lords were chiefly moved because of the inconvenience to creditors , acting bona fide with a person trading , and repute in a good condition : and where in eventu his estate is not sufficient , both to pay his creditors , and this bond , for if it had been sufficient for both , they would have come in pa●● passu , having both done diligence within the year . iohn brown contra robert sibbald , eodem die . iohn brown having taken a feu of some aikers of land , at a great rent in victual and money , pursue robert sibbald ( now his superior ) to hear and see it found and declared , that he might renunce , and be free of the feu duty . the defender alleadged absolvitor , because this feu was by a mutual con●ract , by which the vassal had bound him and his heirs to pay the feu duty yearly , and which obligation he could not louse at his pleasure ; for albeit feues which are proper and gratuirously given without any obligement on the vassals part , but given by a charter , or disposition , as being presumed to be in favorem of the vassal , he might renunce the same , nam cuivis licet favori pro se introducto renunciare , but here the vassal being expresly obliged for the feu duty , cannot take off his own obligation , this case being like unto that of a tack , which being by mutual contract , cannot be renunced , though by a tack only granted and subscribed by the setter it may . the pursuer answered , that he opponed the common opinion of all feudists , de feudo refutando , wherein there is no exception , whether the feudal contract be subscrived by both parties , for every contract must necessarly import the consent of both parties , and the acceptance of a vassal to a feu by way of dispo●ition is all one with his express obligation in a mutual contract . dly , though such a contract could not be renunced , yet this pursuer may renunce , because by a back-bond by the superior , who granted the feu under his hand , he has liberty to renunce when he plea●es . the defender answered , that this back-bond not being in corpore juris , nor any part of the investiture , it was only personal against that superior who granted the same , but not against the defender , who is a singular successor . it was answered , that the mutual contract not being de natura feudi , but at most importing an obligement not to renunce the feu , any personal deed before this superiors right , under the hand of his author , is relevant against him , as well as his author . the lords found the alleadgeances upon the back-bond relevant against the supe●●or , though singular successor , it being granted of the same date with the feudal contract , and relating to a matter extrinsick to the nature of the feu , and so suffered the pursuer to renunce the same . gilbert mcclellan contra lady kirkcudbright , february . . gilbert mcclellan being infeft by the lord kirkcudbright in an annualrent , effeirand to four thousand merks , out of the lands of auchin●lour , thereafter my lady was infeft in property , or an annualrent out of the lands , at her pleasure , for her liferent use ; and after my ladies infeftment , my lord gave a corroborative security of the property of auchinflour , and stated the four thousand merks of principal , and the two thousand and five hundreth merks of annualrent in one principal , and infeft him thereupon in property wherein gilbert was many years in possession before my lords death : in the competition betwixt my lady and him , he craved preference , because he was seven years in possession . dlie , because his first right of annualrent still stands , and was corroborat ; and therefore , as he would undoubtedly have been preferred to my lady , for all his annualrents , for the sum of four thousand merks by his first infeftment , which is prior to my ladies , and as an appryzing by poinding of the ground for these annualrents , though posterior to my ladies infeftment , would be drawen back ad suam causam to his infeftment of annualrent , and be preferred , so my lord having voluntarly granted-this corroborative security to prevent an appryzing , it should work the same effect , as if an appryzing had been then led , and an infeftment thereupon , which would have accumulat the annualrents then past , and made them bear annualrent in the same manner as this corroborative security does . the lords preferred gilbert for the whole annualrents of his four thousand merks , conform to his first infeftment : but would not sustain the corroborative security , being posterior to my ladies infeftment , as if it had been upon an appryzing , to give him annualrent for . merks , then accumulate : but found no moment in his alleadgance of the possessory judgement , unless it had been seven years after my lords death , when my lady might have preferred her right , and not contra non valentem agere . the creditors of balmerino and couper contra my lady couper . februarie . . the deceased lord cowper having disponed his estate to his lady , some of his creditors , and some of balmerino's creditors , who was his heir appearand , did raise reduction of the said disposition , as done on death-bed , and before the day of compearance they give in a supplication , desiring witnesses to be examined , and to remain in retentis , that cowper had contracted his disease , whereof he died before the subscribing of this disposition , and that he never went out thereafter , but once to the kirk and mercat of cowper , which times he was supported and fell down dead , a swoon , before he was gotten home . it was answered for the lady cowper : first . that witnesses ought not to be examined until the relevancy of the libel were discust , unless they were old or valetudinary , or penury of witnesses , whereas there are here fourty witnesses ctaved to be examined , and the coming to kirk and mercat being publick deeds , there would be no hazard of wanting witnesses . dly , the creditors , or appearand heir have no interest , unless the heir were entered , or they had appryzed , or had a real right ; neither can the creditors be prejudged by the disposition , as being on death-bed , because they may reduce the same , as being posterior to their debts , upon the act of parliament . and the reason of death-bed is only competent to heirs , and to these having real rights from the heir , and not to their personal creditors . the lords ordained the witnesses to be examined , to remain in retentis , concerning my lord cowpers condition , the time of subscribing the disposition , and of his coming abroad ; and allowed my lady also witnesses if she pleased , for proving what his condition was at these times , reserving all the defenses and alleadgances of either party in the cause , for they found that the creditors of balmerino , as appearand heir had interest to declare that their debts might by legal diligences affect the estate of cowper , unprejudged by this disposition , as being made by cowper on death-bed , and that the reduction in so far as might contain such a declarator , would be sustained , for no party can be hindered to declare any point of right competent to them , and it was also thought , that though there were many witnesses called to find out who truely knew the defuncts condition , yet there might be few , who truly knew the same , and these might be removed out of the way , either by death , or by collusion . alexander hamiltoun contra harper . eodem die . umquhil iohn hamiltoun apothecarie , having purchased a tenement in edinburgh , to himself in liferent , and his son alexander in fee , thereafter he borrowed . merks from thomas harper , and gave him a tack of a shop in the tenement , for the annualrent of the money . after his death alexander his son used a warning by chalking of the doors by an officer in the ordinary form , and he being removed , alexander pursues now for the mails and duties of the shop from his fathers death , till the defenders removal , who alleadged absolviture , because he bruiked the tenement by vertue of his tack , & bona fide possessor facit fructus perceptos suos . it was answered , that the tack being but granted by a liferenter , could not defend after the liferenters death , and could not be so much as a colourable title of his possession . dly , that he could not pretend bona fides● because he was interrupted by the warning . it was answered by the defender , that the tack was not set to him by iohn hamiltoun as liferenter , nor did he know but he was feear , being commonly so repute , neither could the warning put him in mala fide● because there was no intimation made thereof to him , either personally , or at his dwelling-house , but only a chalking of the shop-door . the lords sustained the defense and duply , and found him free of any mails or duties , till intimation or citation upon the pursuers right : here the pursuer did not alleadge that the warning by chalking of the shop-door came to the defenders knowledge , as done by the pursue . sarah cockburn and mr. patrick gillespie contra iohn stewart and the tennents of lintone . february . . sarah cockb●rn being infeft in liferent in an annualrent of . merks yearly , out of the barony of lintone , she and mr. patrick gillespie her husband , insisting for her annualrent , in anno . obtained payment from iohn stewart , and gave him a power to uplift the same from the tennents , and delivered to him the letters of poinding , to be put in execution . thereafter mr. patrick obtained a second decreet against some wodsetters , whose rights were posterior to the annualrent , for the years , , and . and upon payment of these three years , did acknowledge payment made of the saids three years annualrent , and all bygones whereunto he had right . mr. patrick having granted iohn stewart a bond to warrand him anent the year . and that he had given no discharges that might exclude him . the tennents of lintoun suspends the charge for the year . upon that reason , that mr. patrick had discharged the annualrent for the years , , . and all preceeding whereunto he had right : whereupon iohn stewart charged m. patrick upon his bond of warrandice , who suspended upon this reason , that the discharge could not exclude john stewart , albeit it bare all preceedings to which he had right , because when he granted the discharge , he had no right to the year . which he had received from john stewart , and given him warrand , and his letters to poind for mr. johns stewarts own use . it was answered , that unless that order had been intimat , the right remained with mr. patrick , and so his general discharge extended thereto . it was answered , that albeit intimation was necessar , as to establish the right in the assigneys person : yet mr. patricks warrand was sufficient to exclude him , at least , the matter of his right being thereby dubious , the general discharge cannot be effectual against him , if by the oaths of the wodsetters that got the discharge , it appeared that they paid him not the year . and some of their oaths being taken , he who paid the mony for himself , and the rest d●poned , that the year . was not paid , and that there was no decreet against the wodsetters for . but only against the moveable tennents , to whom the discharge , containing the said general clause , was not granted . the lords found that in respect of the oath , the general discharge extended not to the year . and therefore suspended the letters against the said mr. patrick upon his bond of warrandice , and found the letters orderly proceeded at iohn stewarts instance , against the moveable tennents of lintoun , for the year . the tennents further alleadged , that since the year . they did produce three consecutive discharges from mr. patrick , which imports a liberation of all years preceeding , specially seing mr. patrick was never denuded of the year . nor no intimation made . it was answered , that such a liberation is but presumptive , presumptione juris , and admits contrary probation , and is sufficiently taken away by the oath of the party , acknowledging that year unpaid● and the warrand given to iohn stewart , to lift it for his own use , before these discharges . the lords repelled also this defense upon the three discharges , in respect of the reply . trinch contra watson . eodem die . john watson being curator to margaret trinch , and having contracted her in marriage with his own sister son , there is a disposition granted by her to the said iohn watson , of all her means , and in the contract , he contracts with her . pounds , whereunto the heirs of the marriage are to succeed , and failing these , to return to the said iohn himself , she died before the marriage , and david trinch stationer being served heir to her , raises reduction of the disposition , and substitution in the contract of marriage , upon two reasons . first , that albeit the disposition contain sums of money , yet being of the same date with the contract of marriage , in which iohn watson contracts . pound with the said margaret trinch , which unquestionably has been all that has been gotten for the disposition , the said disposition is a part of the agreement , in relation to the marriage , and must be understood , as granted in contemplation of the marriage , as if it had been contracted in the contract of marriage ; so that the marriage not having followed , the disposition is void , as being causa data causanon secuta . dly , both the disposition and provision in the contract , that failing heirs of the marriage , the . pound should return to iohn vvatson , were obtained by fraud and circumvention , being granted to a curator , ante reddi●as rationes , by a person who lately was his minor , and who was of a weak capacity , stupide and halfe deaf , and upon such unequal terms , her means being worth . pounds , as appears by a decreet obtained at her instance , and all she got being but . pounds , to return to watson , in case there were no children , and nothing secured on the husbands part . the defender answered to the first , that albeit the disposition was of the same date with the contract of marriage , it did not conclude , that it was in contemplation of the marriage , and might be , and truly was an absolute bargain . as to the reason of circumvention , it is not relevant , although the terms had been as unequal as they are alleadged , for the said margaret trench , might freely dispose of her own , at her pleasure , and leave it to iohn vvatson , who was her mothers brother , if she had no children , especially seing david trinch , the nearest on the fathers side , is but her goodsires brothers oy , and never took notice of her , whereas iohn watson alimented her from her infancy , and obtained decreets for her means , and never received a groat thereof ; neither was there any inequality betwixt the . pound , and her means , for which , albeit there be a decreet in absence of a greater sum ; yet there are unquestionable defalcations , which being deduced with her aliment , there will not be . pounds free . the lords conceiving the matter to be very unwarrantable on the curators part , in taking this disposition and substitution , before his accompts with his minor were given up , did reduce both the disposition and substitution , not only as done in contemplation of marriage , but as being presumed fraudulent and unwarrantable . mr. iohn hay contra the town of peebles . february . . mr. iohn hay insisting in his declarator , that certain hills libeled were proper part and pertinent of his lands libelled , wherein he stands infeft in property . it was alleadged for the town of peebles , that they do not acknowledge his right of property , but they alleadge that they are infeft by king iames the second , in their burgage lands with the commonty of priest-shiels , and likewise by king iames the fourth , and that queen mary having directed a commission for perambulation to the sheriff of edinburgh , he perambulate their commonty , and hath set down meithes and marches thereof , which are exprest in their decreet of perambulation , within which their meithes lie , and that in anno . they have a charter from king iames the sixth , of their burgage and commonty of priest-shiels , comprehending expresly thir hills ; by vertue whereof , they have been in peaceable possession thereof , as their proper commonty by pasturage , feuel , fail and divot , and by debarting all others therefrom . the pursuer answered , that their charters was but periculo petentis , the king having formerly granted the right of thir lands to his authors , and the decreet of perambulation by the sheriff of edinburgh , was a non suo judice , the lands not being within the shire , and for any possession they had , it was not constantly over all the year , but only a while about lambas of late , and was still interrupted by him and his authors , and offered him to prove that they have been in immemorial possession , by teiling , sowing and all other deeds of property , and that thir hills cannot be part of their commonty , there being other heretors lands interjected between the same and the commonty of priest-shiels , so that the pursuer ought to be preferred , being in libello , and far more pregnant and specially alleadging acts of property by tillage , and the defenders having declarator depending of their commonty , and alleadged a practique at the instance of sir george kinnaird , where he alleadging upon property more pregnantly , was preferred to an other in probation , alleadging pasturage . the lords preferred neither party to probation , but before answer ordained a perambulation to be , and witnesses adduced , hinc inde , anent the situation of the bounds , and either parties possession and interruption . lord elphingstoun contra lady quarrel . eodem die . the lord elphingstoun pursuing quarrel in a tutor compt anent the profits of the coal of elphingstoun , this q●ere came in from the auditors , how the small articles of uncost should be proven . it was alleadged for quarrel , that such articles could be proven no other way but by his oath , seing it was impossible either to use witnesses , or for them to remember such small particulars , occurring every day , especially seing it was known to all coal-masters , that such particulars were ordinarly incident . it was answered for the lord elphingstoun , though these particulars were small , yet they amounted in whole to . merks , and that the tutors ought to have keeped the coal-grieves weekly books , wherein every particular was set down dayly as they were expeded ▪ which if they were produced , and both the tutors and coal-grieves oathes were taken thereupon , that they were truly so payed , as they were recently set down , they might be allowed : but no such book being produced , the tutor could not give a compt thereof at random , nor could his oath in astruction thereof be received ; because it were impossible for him to remember these small particulars without the books . it was answered for the tutor , that during the dependence of this process , the books were lost● which were made up by the coal grieves weekly : but that he produced a book made up of these books , and was willing to give his oath that the first books were lost , and that thir books , albeit they be not direct copies of the former books , yet that they were made up of the former , and did agree in the matter with them , and contained no more then they did . the lords refused to sustain this manner of probation , but ordained quarrel to condescend de casu ommissionis , of the first books , and adduce such proofs and evidence thereof as he could , and also to condescend who was the writer of the latter books , that he might be examined how he made up the one from of the other . kings advocat contra craw. eodem die . the kings advocat pursues a declarator of the bastardy of one craw. it was alleadged for the defenders , that the libel was not relevant , unless it had been condescended who was the bastards mother , and offered to be proven , that she was never married to his father . it was answered , that not being married was a negative , and proved it self , unless the defenders condescended upon the father , and offered to prove married . the defender answered , if that was relevant● the most of all scotland might be declared bastards , it being impossible after a considerable time to instruct the solemnizing of a marriage , but law and custom doth require , that at least it must be condescended on and instructed , that the defunct was holden and reputed bastard at the time of his death . which the lords found relevant . and it being further alleadged , that there was produced a legittimation taken by the bastard from the king , which did import his acknowledgement of being bastard , and was stronger then being holden and repute bastard . it was answered , non constat , that the defunct took this legittimation , but some other might have done it in his name , without his warrand . the lords found the legitimation sufficient to instruct the bastardy . it was then alleadged , that the legitimation denuded and excluded , the king not only giving power to the bastard to make testament , but to dispone of his heretable rights , even on death-bed . it was answered , that whatever the stile of such gifts be , they are never extended to heretable rights , but only to a faculty , to make testament , which bastards want by the law : but if the bastard made no testament , and did exhaust his moveables by universal or particular legacies , the executor nominat could only have the third , which follows the office , and the king would have the rest of the inventar , not exhausted . dlie , all general declarators being summar , these debates are only competent in the special declarator . the lords repelled the defense hoc loco , and reserved the same to the special declarator . relict of skink contra earl of roxburgh . eodem die . umquhil cornelius skink pursues the earl of roxburgh upon a bond , and the earl having alleadged that the bond was partly paid by skinks intromission with the earls pay in holland , and partly made up of exorbitant usurary , of . per cent monethly , as appears by a compt of the same date , with the bond subscribed by skink , and whereunto the bond relates , there was an act of litiscontestation in anno . sustaining the alleadgance as to the intromission and usury after the bond , but repelling the same , as to what preceeded the bond , and appointed a compt and reckoning . skink being dead , his relict as executrix having transferred the act , craves now the compt to proceed conform thereto . the defender answered , that he ought to be reponed against the act , in so far as it repelled the alleadgance , upon the usury preceeding the bond , as being unjust . the pursuer answered , that the opponed the act of parliament , confirming the judicial preceedings in the time of the usurpation , and specially ratifying acts and interlocutors of the judges . the defender answered , that this act was unwarrantably extracted , there being a posterior interlocutor , which is now produced under the hand of the president , at that time , ordaining the compt to be not only upon the exorbitant usurary after the bond , but-also before the same . the lords ordained a new act of compt and reckoning to be extracted , allowing the defender to be heard upon the exorbitant usury before the bond , also before the auditor , in respect of the said posterior interlocutor . andrew bruce contra laird and ladie stenhope . february . . andrew bruce merchant in edinburgh , pursues the laird of stenhope for payment of a continued tract of merchant compts , insert at several times in his compt book , as being taken off by margaret sinclar , in the name and for the behove of the laird of stenhope , upon these grounds . first , that the ware was worn and made use of by the laird of stenhope and his lady , and so was converted to their use . dlie , that margaret sinclar was entrusted by the laird of stenhope and his lady , to take off ware for them from time to time , as appears by several missive letters of theirs to the said margaret : so that margaret having taken off the ware , and being entrusted so to do , they must pay the same . dlie , not only was margaret sinclar trusted to take off merchant ware in general , but particularly to take off the same from andrew bruce , upon these grounds : first , because there is produced an compt in the pursuers books , before the accompts in question , which is not contraverted ; so that andrew bruce was stenhops merchant , when margaret sinclar began to be imployed . dlie , by one of the ladie stenhops letters , it appears that a satine petticot and lace was taken off from andrew bruce , by margaret upon trust of stenhope , and the lady desires that margaret may endeavour to get the lace taken back , and their names put out of the compt book . dlie , the laird and ladies oathes being taken , ex offi●●o , the lady acknowledges that she was several times in andrew bruces shop with margaret sinclar , and that she was present with margaret sinclar , when the last part of the accompt of . pounds was taken off , all which are sufficient evidences of a warrand or commission to margaret , to take off the ware in question from the pursuer . the defender answered , that none of these grounds were relevant to oblige him ; for albeit he acknowledge the goods to be converted to his use , there is nothing to make it appear that he had any medling with the pursuer , but by the letters written by him and his lady to margaret sinclar , made use of by the pursuer , it is evident that he only imployed margaret sinclar to furnish him upon her credite , and did prohibite to put him in any merchants accompt , saying that he would be only her debitor and no others , so that it were of most dangerous consequence , if the making use of good sh●uld infer an obligement to pay the merchant , whose they were at first , though payment were made to the person intrusted , as in this case the letters to margaret sinclar bears , that she was paid of what was taken off formerlie by her , and there are severals also subscribed by her hand for a part of the particulars contained in these accompts ; neither can any trust put upon margaret sinclar , to take off ware in general , oblige the defender , unless it had born to take off the same upon his faith and credite , and not to take off the same upon margaret sinclars own credite : neither doth the circumstances adduced , infer a special commission , to take off from andrew bruce , or prove that he was ordinary merchant , or so much as that stenhope knew that the particulars in the accompt were taken off upon his credite , and were put in his name in the book , except that which concerns the petticoat and th● last articles of the . pounds , especially seing his letters prohibits her to put his name in a merchants accompt : and seing andrew bruce for several years ▪ never so much as intimate the accompt to stenhope , till margaret sinclar was dead . the pursuer answered , that in rem versam , is an unquestionable obligation in law , albeit nothing of a commission were instructed , unless the defender can alleadge that he made payment to margaret sinclar , and proved by her hand writ , and not by his own letters . dlie , there is nothing more ordinar , then to take off ware from merchants by taylors and servants , who cannot be thought to have the ware of their own , but that they must take them off from some merchant , and therefore payment should not be made to such persons , till they produce the merchants accompt , and his discharge , or if it be , and if these persons interposed pay not the merchant , as in this case , the loss must not be to the merchant , but to these who payed to the interposed persons , upon their hazard , and if this were not , all merchants would be ruined , for no persons of quality do immediatly take off from the merchants themselves . the lords found that these articles in the accompt , in relation to the petticoat and the . pounds , which were known by the defender or his lady , to be taken off in their name , and put in andrew bruce , his book , were due by them , and that though the same had been paid to margaret sinclar , it was upon the defenders peril , if she paid not the merchant : they did also find that the goods being acknowledged to be converted to the defenders use , they were lyable to the pursuer , in so far as they proved not they paid margaret sinclar , and found the same probable by margarets writ , or by witnesses : but found not that ground relevant , that margaret sinclar was intrusted generally to take off ware ; or that the grounds alleadged did instruct a particular warrand to take off from the pursuer ; and therefore did not find the payment made to margaret sinclar , which she failed to pay the merchant , to be upon the defenders peril , except as to the two parcels of accompt aforesaid , which the defenders knew to be in their name in the pursuers book . countess of dundee contra strait●un . february . . the countess of dundee as donatrix to her husbands escheat , pursues straitoun for a sum due to her husband . the defender alleadged absolvitor , because that same day this bond was granted by him to the earl , a creditor of the earls arrested , to whom the defender had made payment , and obtained his assignation ; and therefore as assigney craves compensation and preference as arrester . it was answered that this debt being contracted by the late earl , after he was rebel , it cannot burden his escheat , in prejudice of the king and his donator ; for though creditors , whose debts were due before rebellion , arresting after rebellion , may be preferred : yet no debt contracted by the rebel after rebellion , can burden his escheat , neither by arrestment nor compensation . which the lords found relevant , and preferred the donatrix , except as to what was due to the defender by herself , or for drogs to her husband , which she was content to allow . the earl of kincardin contra the laird of rosyth . eodem die . the earl of kincardin pursues the laird of rosyth for the teinds of his lands , to which the pursuer has right . the defender alleadged , that he had obtained a decreet of the high commission for plantations against the earl , whereby they decerned the earl to sell and dispone these teinds for a price mentioned in the decreet , being about nine years purchase thereof , and therefore the pursuer cannot have right to the teinds themselves , but only to the annualrent of that sum , which was the price . the pursuer answered that he opponed the decreet produced , which did not , de presenti , adjudge the teinds to the defender , but decerned the pursuer to sell them to him , upon payment of the said price , which can give no right to the teinds till the price be payed , or at least offered , which was never done . the lords repelled the defense in respect of the reply . the earl of annandail contra young and other creditors of hume● eodem die . the earl of annandail having obtained assignation from iohn ioussie to a sum of money due by the earl of hume , whereupon inhibition was used anno. . and shortly thereafter an appryzing upon which aunandail was lately infeft . whereupon he now pursues reduction of the infeftment granted by the earl of hume to young , as being after his inhibition , which inhibition being auterior to the most part of the debs , wodsets , and apprizings of the estate of hume , and being supposed to be the leading case , that the decision thereon might rule all the rest , many of the creditors did concur with young , and produced their interests , and craved to see the process . it was answered , that they had no interest in youngs right , and so could not crave a sight of the process . it was replyed that albeit the sentence against young could not directly operate against them , yet indirectly it would , as being a dicision , and practique in the like case . the lords found this no interest to stop process , but allowed any creditors that pleased to concur in the dispute . it was then alleadged absolvitor , because this assignation , inhibition , and apprizing , albeit standing in the person of the earl of annandail , yet it was truely on trust to the behove of the earl of hume , and if to his behove , it did accresce to the defenders , as having right from him , and for evidence of the trust they condescended upon these grounds . first , that the debt was contracted . years since , and no diligence ever used thereupon till now , except an apprizing , whereupon no infeftment was taken till of late , albeit infeftments were taken of the estate of hume , upon many posterior apprizings , which are now expired , and will exclude this apprizing . dly , the assignation granted by iousie to annandails father , was immediatly after the lands of dunglasse was sold by the earl of hume , to the laird of dunglass , by whom ioussie was payed , as a part of the price , by sir william gray , who was then debitor to dunglasse , likeas ioussies oath being taken ex officio upon his death-bed , depones that sir william gray payed him the money , albeit he knew not by whose means , or to whose use , yet he knew nothing of any payment made by the earl of annandails father● dly , this inhibition and apprizing was never in annandails , or his fathers possession , but still in the possession of the earl of hume , and his agents , and still in his charter chist . dly , the earl of annandail took a security from the earl of hume for all sums due to him , or for which he was cautioner , wherein there is neither mention nor reservation of this sum , or apprizing . thly , the earl of annandail has consented to many of the creditors rights , which he would never have done , if this apprizing had been to his own behove , thereby preferring others to himself , the creditors therefore craved witnesses to be examined ex officio , upon all these points for clearing of the trust , which being an obscure contrivance , can be no otherwise probable , all the actors being now dead , and is most favourable in the behalf of creditors , who if this pursute take effect , will be utterly excluded , for if the inhibition reduce their rights , the pursuers apprizing supervenient upon that same sum , is now expired , and irredeemable . the pursuer answered ; he did declare he would make only use of this right , for satisfaction of the debts due to him , and for which he was cautioner for the earl of hume , and was content that witnesses should be examined anent the inhibition , and apprizings being still in the possession of the earl of hume in his charter chist , but not upon any other ground to take away his assignation and solemne right , which cannot be taken away by witnesses , but scripto vel juramento , and most of these presumptions are but weak conjectures , no wayes inferring that ioussie was payed by the earl of humes means , and the great friendship that was betwixt annandail and hume alleviats the same , it being the cause for which annandail forbore to take infeftment , or do diligence , thereby to allarum humes creditors , that his inhibition would always work his preference , and on that same ground did consent to several creditors rights , there being enough remaining for him , and which was an evidence that this right was generally known , and that without it hume could not give security . the lords ordained witnesse sex● officio to be examined upon all the points alleadged for ●learing of the trust. the kings advocat contra the earl of mortoun and viscount of grandison , february . . the kings advocat pursues a reduction of the rights of the earldom of orkney and zetland , granted by the deceast king charles the first , or by this king himself to the earl of mortoun , or viscount of grandison , and produces a contract betwixt the king ▪ and the earl of mortoun , in anno . and a charter following thereupon , whereby the lands are granted , and disponed blench , with several extraordina● priviledg●s , as having right to the bullion , and other customs of goods imported there ▪ and also a charter , in anno . by the king to the said earl , relating to a dissolution in the parliament . containing nova da●tus , and bearing also blench ; there is also produced an infeftment , granted to the viscount of grandison , and after the said infeftment , a ratification by the parliament . in the which ratification , there is contained a dissolution of the earldom of orkney and zetland , in favours of grandison , wherein also the dissolution , formerly made in favours of mortoun , in anno . is particularly rescinded upon this consideration , that neither the king , nor his commissioner were present in the parliament . and that his annexed property could not be disponed , nor dilapidat , without an express a●t of his own ratified by parliament . after this dissolution in favour● of grandison , the king granted no new infeftment to grandison ; the advocat having holden the production satisfied with the writs produced ▪ m●●toun and grandison compeared not at all , and some others having publick rights from them being called , did also pass from their compearance , and submitted to the kings favour , and compearance being made for some of the vassals holding of mortoun , they were not admitted , because they produced no w●its to instruct there interest , so the lords proceeded to advise the reasons of reduction , which were upon these points . first , that by the law , and several particular acts of parl●ament , the patrimony of the crown being the lands , and customs annexed to the crown , might not be disponed by the king , unless the samine ( upon weighty motives , and considerations ) had been dissolved by his majesty , and the parliament , and dissolutions● made after infeftments are not valide , parliament . cap. . and by the . act of that same parliament , the annexed property can not be se● otherwise , but in feu ferm , so that the earldom of orkney , being annexed to the crown , by the annexation produced in process , and the contract and charter , . being before any dissolution , is absolutely null ; and the infeftment in anno . albeit relating to a dissolution in anno . yet no such dissolution is found in the records ; and though it were , it is rescinded in the ratification in favours of grandison , in the parliament . upon so weighty a reason , as the king , or his commissioner not being present : and because the parliament . is rescinded by the parliament . wherein albeit there be a salvo of privat rights , yet that cannot reach to the patrimony of the crown , especially seing in that same parliament● . his majesty having revocked all deeds done by him or his father since . which by the laws of the nation , he might not do to the derogation of his honour , or crown , the parliament has ratified the same revocation , as to all rights granted since . . contrair to the laws , and acts of parliament preceeding . and likewise by an express act of parliament , it is provided , that no ratification in parliament shall prejudge the crown● or supply a dissolution , and that none of the kings customs ( which are also annexed ) can be effectually gifted . the lords found these reasons relevant , and proven , and reduced all the rights produced before the dissolution in anno . since which there is no infeftment granted . pargilleis contra pargilleis , february . . umquhile abraham pargilleis having no children but one bastard daughter , dispones some lands acquired by him to abraham pargilleis , eldest lawful son of that daughter . iohn pargilleis his brother son , and nearest heir , pursues a reduction of that disposition , as being done in lecto , and the defender alleadged that the defunct went abroad to kirk and mercat thereafter unsupported , and the pursuer replying that he was supported , and either party contending for preference , the one that he walked free of himself , and the other that he was supported . the lords considering the advantage to the party that had the sole probation , would prefer neither , but before answer ordained witnesses to be adduced for either party , concerning the condition the defunct was in , as to sicknesse or health when he subscribed the disposition , and the manner of his going abroad , whether free , or supported : and now the lords having advised the testimonies , by which it was proven that the defunct was sick the time of the subscribing of the disposition , and that he continued sick till his death . it was also proven that he went unsupported a quarter of a mile when the seisine was taken , six days after the disposition , and that after the same he went three times to calder , and about three quarters of a mile off , and that he was helped to his horse , and from his horse , and that he was helped up stairs , and down stairs , but that he walked a foot unsupported in the mercat of calder , and up and down from my lords house ; being three pair of buts of rising ground . it occurred to the lords to consider whether the sickness proven would have been sufficient , not being ●●orbus sonticus , or in extremis , or whether the presumption of health sufficient to leige poustie was enough that he came out to kirk and mercat , albeit the sickness remained , and whether the probation of the sickness remaining could take away that presumption ; and whether his being helped to his horse , and from his horse , or up and down stairs , and his man holding his bridle as he rode to , and returned from calder , did infer that supportation , which eleids the presumption of health by going abroad , or whether the going freely on foot ( having only a staff in his hand the rest of the way ) was sufficient to prove that he went abroad in leige poustie . the lords found that the defuncts going abroad after the disposition , as is before exprest , was relevant to eleid the reasons of reduction on death-bed , notwithstanding of the defuncts being helped up and down stairs , and to , and from his horse , and by leading his bridle , and that notwithstanding that he continued sickly to his death . william street contra hume and bruntfield , iune . . william street merchant at london , having sent down a parcel of skins to arthure lyel his factor at edinburgh , lyel sells the skins to hume and bruntfield , and takes the bond for the price thereof , in his own name , payable to himself , without mention of street , lyel being dead bankrupt , and street finding that if he should confirm the value of the skins as executor creditor to lyel , the rest of lyels creditors would come in with him , and share in this sum which was the price of his skins , therefore he raised a declarator against the nearest of kin of lyel , that the sum due by bruntfield and hume , albeit the bond was taken in the name of lyel , yet the same was for streets goods , and to streets behove , and none compearing , he obtains decreet of declarator to that effect ; and now he pursues bruntfield and hume for payment of the sum , who alleadged they cannot be in tuto to pay to any but these who represent lyel , to whom they were debitors , and therefore the pursuer must first confirm as executor to lyel ; and as for the declarator obtained , it was in absence , and they not called , and whenever the executors confirms , they cannot exclude them . the pursuer answered , that he needed not confirm as executor to lyel , because this debt , albeit in the name of lyel , yet was not in bonis of lyel in so far , as it was the price of the pursuers skins , which were in the custody● and management of lyel , but never in his property , but specially , by lyels missive produced , he acknowledges the receipt of the skins , and that he had sold them to these defenders , that he was to take bond for them ; which is the same bond , and in his compt-book produced , he states himself only debitor to street for ten pound sterling , that he had reserved of his bond , and not for the whole sum , which therefore must import that the remainder remainded streets ; and yet for the further assurance of the defenders , he offered caution to warrand them . the defenders answered , that the pursuer having intrusted lyel with the skins , he had followed lyels faith , and could not quarrel what lyel had done with any third party , so that lyel taking the bond in his own name did alter the condition of the affair , and stated himself debitor to street , and the merchants debitors to him , and as he might have received payment from the merchants , and applyed the sum to his own use , so he might discharge them , and this sum might have been arrested , and affected for lyels debt , and therefore was in bonis of lyel , and behoved to be confirmed , and seing the defenders cannot be secure , they were not obliged to accept of caution to put themselves to two actions . the pursuer answered , that albeit payment made to lyel would have been sufficient , as being made bona fide , yet if lyel had discharged without payment , his discharge would not have excluded street the pursuer , neither would arrestments for lyels debt have excluded him , especially the same having been posterior to the missive produced . the lords repelled the defenses , and found the same not to be in bonis of lyel , nor to be confirmable as his goods , but to belong to the pursuer street ; and seing street offered caution to warrand the defenders , they ordained him to grant the same accordingly . countess of dundee contra mr. iames birsbin , eodem die . the countess of dundee being possest in an annualrent out of the maines of dudhop , anno . and having consented to the infeftments of other creditors in the said mains , in anno . she is provided to ten chalder of victual out of the said mains , and to certain other lands , and the provision bears expresly in satisfaction of the contract of marriage , and any prior infeftments , whereupon she pursues a poinding of the ground . compearance is made for mr. iames birsbin , who produces an infeftment of an annualrent , in anno . and offers to prove possession conform , prior to the ladies infeftment in anno , whereupon she how pursues , and which infeftment she has accepted in satisfaction of all that can befall to her by her husbands death . the pursuer answered , that she was infest in an annualrent out of the mains in anno . which doth exclude birsbin , unless he had attained possession before that time ; and albeit this infeftment in anno . being in satisfaction &c. yet that right whereby she accepts the same , is not in favours of birsbin , but of other rights to whom the lady consented , and not to birsbins to which she never consented , and therefore it must be limited to be only in so far as concerns these rights related therein . birsbin answered , that be the motive or narrative what it would , my lady having simply and absolutely accepted this infeftment in satisfaction of her former infeftments , the former infeftments were thereby extinct in the same way , as if she had renunced them simply to my lord , whence there is jus acquisitum to birsbin , deriving right from my lord. the lords having considered the last provision , found that albe●t the narrative related to rights consented to by my lady , yet the dispositive words were absolute , and so did extend to birsbin . it was also alleadged , that this last security in so far as it bears to be in satisfaction of all others , the acceptance thereof was a donation betwixt man and wife revockable , and my lady did now recal it . it was answered , my lady had homologat the same after my lords death , by pursuing now thereupon , in which it occurred to the lords , whether my lady might recal any part of this last provision , and make use of it in so far as it quadrat with the former infeftments , or whether she might recal it after she had made use of it after her husbands death , which not being debated fully , the lords did not decide therein . evart loyson contra laird of ludquharn and captain wilson , iune . . captain wilson a privateer , whereof ludquharn was owner , having taken evart loyson and his ship , obtained the same to be adjudged prize by the admiral , as carrying flax and hards , which were counterband ; which decreet the strangers suspend , and raised reduction upon these reasons , that this ship and goods belonged to one clepan in bruges , the king of spains subject , and was declared prize upon no other ground , but because she carried tow and hards , which are not counterband , but are necessary in some quantity in every ship for calsing ; and by the treaty betwixt the king , and the king of spain , there is an express article , that though counterband be deprehended in spainish ships , only the counterband shall be prize , and not the ship and goods . it was answered , that this alleadgeance was competent , and omitted before the admiral . it was answered , that these cases with strangers are to be ruled by the law of nations , and not by peculiar statutes and customs . the lords reponed the strangers to their defenses , as in the first instance , and also allowed the privateer to insist on any grounds for making of the ship prize , which he did not formerly insist on , whereupon the privateer insisted upon two grounds . first , because by the law of nations , and the kings proclamation of war , allies and neuters must not make use of the kings enemies to sail their ships , and therefore the proclamation of war bears expresly , that all ships shall be seised , bearing any number of men of the kings enemies , and this ship had the major part of her company of hollanders , then the kings enemies , as is evident by their own depositions taken before the admiral . dly , this ship was not only sailed by hollanders , but the ship , or major part thereof , and the loadning belonged to hollanders , and any pretext that the same belonged to the king of spains subjects is a meer contrivance , it being most ordinar the time of the war for the hollanders to trade under the name and covert of the flemish , the king of spains subjects , which appears in this case by many evidences . first , both the merchant and major part of the sailers , by their own confession are hollanders , and they have adduced nothing to be a sufficient probation that the whole ship and goods belonged to clepan in bruges ; but on the contrair the skippers first testimonie at linlithgow bears , that this ship and goods belongs to clepan and revier , which revier being taken aboard , acknowledges that he was born in holland , but says that two or three years before the seisure he dwelt in gent , and brussels , under the king of spain ; and having a diligence granted to prove his domicil the time of the war , and capture , all that he proves , is that in march . he hired a house in brussels , and began to set up there , and that sometime before he had lived with his mother in gent , but proves not how long , or that it was his constant domicil , for that was an ordinar contrivance for hollanders to hire houses in the spainish netherlands , and to pretend to be subjects there , but they being hollanders at the beginning of the war , concurring , and contributing to the war , albeit they had truely removed tempore belli , they continued to be the kings enemies ; much less can their taking a house else where , sufficiently prove that they totally deserted the hollanders , and concurred not with them in the war , it being easie to have domicils in diverse places . dly , the contrivance is yet more evident , in that the goods were shipped by rivier at fleck in holland , and sailing from thence to copperwil in norway , and was taken , having no pass from the king of spain for this voyage , but had a pretended pass from the duke of york , which albeit it bears relation to the same ship called charles the second , yet by the testimonies of the witnesses , it is evident to have been granted two years before this ship was built , which is an evident cheat ; and for the pass from the governour of the netherlands , it bears but to last for a year , and was expired before this voyage ; and as for the pass from the chamber of commerce , it was granted for a former voyage , from ostend to france , which is clear by the testimonies , which bear also that there could be no pass gotten for this voyage , because this ship was lying in fleck , and not in the king of spains ports , and so the loading could not be their lying , and wanted oath taken thereupon that it belonged not to the kings enemies , as is requisite in such cases . it was answered for the strangers , to the first ground of adjudication ▪ that it was no way sufficient . first , because the king of spain being an allie by a perpetual league , his subjects were not to be regulat by the kings proclamations , but by the solemn treaties betwixt both kings , which setting down the causes of seisure , must necessarly import that seisure should be for no other cause then is therein exprest . dly , the articles bear expresly , that any of the spainish subjects having a pass conform to the formula set down in the articles , should be no further troubled , which formula requires nothing as to what countrey the sailers are of , and therefore there can be no seisure upon the account of the sailers ; for albeit by the swedish treaty , the swedes are allowed to have a dutch skipper ● 〈◊〉 becoming a sworn burgess of some town in sweden , and he residing there , from whence the lords have inferred that the swedes may not sail with hollanders , and have declared some of them prize upon that account , yet this cannot be exended to the spanish subjects , in whose treaty there is 〈◊〉 such thing . dly , by an act of the council of england produced , it appears that his majesty gave order that all flandrian ships that were taken should be dismist , if there were no other ground of seisure , but that they were sailed by hollanders , until his majesty review the flandrian concessions , and give further order , and there is a particular concession to the flandrians beside this treaty , in regard their language and the hollanders is one● they should not be seised upon the account of being sailed with hollanders ; and 〈◊〉 to the other ground , the passes and testimonies prove sufficiently that the goods belong to clepan in bruges , and there is but one testimony of the skipper , that revier is owner , which testimony was taken at linlithgow , the clerk or interpreter having interest in the caper , and the skippers testimony being again taken by the admiral at leith , says nothing of revier , and albeit it did he is but one witness , and any hollander deserting holland the time of the war , ceases to be an enemie , because the king invited such as would desert his enemies , to come live in england● so that it is both his majesties interest and intention in any way to weake● his enemies , by causing their subjects desert them . it was answered for the privateer , that the strangers could not pretend right to the spainish treaty , seing they wanted a pass conform thereto , and that it could not be inferred negative from the spainish treaty , that seisures should only be for the causes therein exprest , there being no such article in the treaty , and the law of nations , and the kings proclamation being the rule of war the treaties with allies do only explain or restrain the same , and gives exceptions from the rules ▪ for instance the spainish treaty makes counterband not to in●er seasure of the ship and goods , which is valide , though a priviledge derogator to the law of nations , but speakes nothing whether the carrying of enemies goods shall make the ship prize , so that that priviledge , not being granted by the articles , the law of nations takes place , and the ship may be declared prize ; likeas in the case of overvails ship decided in the last session , all that is there alieadged , being here alleadged , overvail not instructing any flandrian concession to sail with hollanders , his ship was declared prize upon that same very ground , and the testimony of the skipper at linlithgow is most unsuspect , it being taken before the skipper was otherwise prompted to depone , neither had the clerk any interest , but the most that can be pretended is that he had relation to some of the owners , which signifies nothing , and the skipper by his office , being the person commissionat by the owners , who by his office , may sell or burden the ship , without a special commission , his oath makes a full probation against the owners who intrusted him , especially here where the merchant , and most part of the company by their own confession are hollanders , which proves sufficiently for the privateer , unless they instruct that the ship and goods belonged to free men , and them only , which they have not done evidently and surely , by all that they have produced , but the skipper ( who is the main man to be trusted ) is contrary , therefore it may be , and is presumed to be a contrivance , to carry on the trade of de rivier a hollander , under the name of clepa● in bruges his brother in law. the lords upon the whole matter declared the ship and goods prize , but● found not that the want of a passe alone was sufficient , neither did they put it to the vote by it self , whether the sailing by hollanders alone would have been sufficient , notwithstanding of the treaty , and the kings order , extracted out of the council of england , which though it related not to scotland , some of the lords thought it was sufficient , unless it did appear that the king had given contrair order , others thought not , unlesse that concession could be otherwise showen . thereafter the srangers offered to prove positively that there was a concession , which the lords would not sustain , in regard that the last session , the first of iune , was given ( before answer ) to prove the concession , and the term was now circumduced for not proving thereof . scot contra langtoun , iune . . iohn graham of gillesby having wodset certain lands to iames langtoun , he did thereafter ( with consent of earl of annandail superior ) eike twelve hundreth merks to the reversion , and the earl ratified the former wodset , and graham with his consent of new disponed again the lands for the sums in the first wodset and eike , and added some other clauses , the first wodset was before the act between debitor and creditor , and by vertue thereof the wodsetter was in possession ; the second wodset was after the said act , the superior consented only to the second wodset , and of the same date gave a gift of grahams liferent to robert scot , whereupon robert having obtained general declarator , pursues now special declarator for the mails and duties of the wodset lands , as falling under the liferent of graham , the granter of the wodset . it was alleadged for langtoun the wodsetter , that he ought to be preferred to the donator , not only for the first wodset , which was constitute before the rebellion , but for the second wodset , comprehending the bike , because the superior by his consent to the second wodset , without any reservation , had communicat all right in his person ; and consequently the liferent escheat of graham ; the granter of the wodset , in the same manner as if he had given the wodsetter a gift thereof , and so no gift , no being anterior to the other could prejudge the wodsetter . it was answered for scot the donator , that the alleadgeance is no way relevant to exclude his gift , unlesse the wodsetter could alleadge a deed denuding the superior , anterior to the pursuers gift ; but here the superiors consent is not anterior , but of the same days date , and may be posterior , and therefore the gift which is the habilis modus , must be preferred unto the superiors consent to the wodset , which is but indirect , and consequential to infer the right , as liferent , at least both must be conjoined , and have equal right , as done simul & semel . it was answered for the wodsetter , that the superiors gift must not be preferred to the consent , though of the same date , because he was then in possession of the wodset lands , and needed no declarator , and the gift is but imperfect , until a general declarator , which is the intimation thereof , no declarator being requisite to the consent of the superiour to the wodsetter , and so is preferable . the lords preferred the wodsetter . it was further alleadged for the donator , that the wodsetter must restrict himself to his annualrent , and be countable to him for the superplus , seing now he makes an offer to find the wodsetter caution , and so he must either quite his possession , or restrict conform to the act betwixt debitor and creditor . the wodsetter answered , that his second wodset bearing , not only a ratification of the first wodset in all points , but a disposition of the same lands , falls not within that clause of the said act of parliament , which regulates only wodsets prior to that act ; and the new disposition makes the old wodset as extinct and innovat . the donator answered , that there being a jus quaesitum , conform to the act , as to the former wodset , the posterior ratification cannot derogat therefrom , or take it away , unless it had been exprest , and in meritis causa , it was alleadged that the wodsetter had near the double of his annualrent . the lords preferred the donator as to the superplus , more nor the annualrent of the first wodset , and ordained the wodsetter to restrict . the wodsetter further alleadged , that the gift was antidated and simulate to the rebels behove , and so accresced to the wodsetter . which the lords sustained , and found the simulation probable by the oath of the superiour , and the witnesses insert in the gift . hamiltoun of corse contra hamiltoun and viscount of frendraught . iune . . wishart of cowbardie having wodset his lands of bogheads and others , to george hamiltoun , from whom the viscount of frendraught has now right , he did thereafter sell the same lands to iohn hamiltoun of corse , who took the gift of wisharts fischeat , and having thereupon obtained general declarator , pursues now in a special declarator for the mails and duties of the wodset lands . compears george hamiltoun and the viscount of frendraught , and produced the wodset right , and alleadged that the liferent right cannot reach the vvodset lands , because the gift is simulate to the behove of wishart the rebel and common author , and so is jus supervenient author● , accrescens successori , to defend this vvodset right , and condescends that it is simulate , in so far as it is offered to be proven , that wishart the common author did allow to the donator in the price of the lands , not only the sum whereupon the horning procceded , but also the expences of the gift ; so that it is purchased by the rebels means , whence the law presumes it to be to his behove . it was answered , that this condescendence cannot infer simulation to the rebels behove , because it was lawful to hamiltoun of corse , finding that his right was not secure to fortifie the same by this gift , and in his account of the price of the land upon the warrandice , he might require retention , not only of the sum in the horning ; but of his expenses in necessarly purchasing the gift , and might apply the same for the security of the lands bought from the rebel only , which is to his own behove : but if he were extending the gift to other lands of the rebels , that might be presumed to the rebels behove , because the donator had no anterior interest of his own to these lands . it was answered , that if the rebel had given the mony to purchase the right , before it was purchased , it would infer unquestionable simulation ; and it is wholly equivalent , that having then the rebels mony in his hand , the rebel ex post facte , allowed the expences of the gift . dly , albeit such an allowance ex post facto , would not be sufficient , where the donator acquired the right to the lands bona fide , and then ex necessitate , behoved to purchase the gift to maintain his right : but here the donator was in pessima fide , and most unfavourable , because if need beis , it is offered to be proven by his oath or writ , that he knew of george hamiltouns right , and that the same was compleat before he bought from the common author , and so is particeps frandi● with his author , in granting double rights contrary to law : and therefore the presumption of simulation and fraud , ought to proceed against him upon the more light evidence . the lords found the ground of simulation not relevant , upon taking allowance from the rebel of the price , if it was done for the maintaining of a right bona fide acquired : but found that it was sufficient to infer simulation , if the right was mala fide acquired ; and that the donator , at , or before he bought the land , knew of the other parties right . pearson of balmadies contra the town of montross . iune . . pearson of balmadies being collector of two of ten , and the sixteen penny imposed by parliament anno . and the magistrates of the town of montross , having written a letter to him , promising compt and payment in anno . some few dayes after the letter , he made compt with orbistoun , general collector , and charged himself with the whole taxation of montross , as received . and in anno . obtains a decreet against the then magistrates , holding them as confest upon the quantities of taxation of their burgh . they now suspend on this reason , that the decreet was in absence , and the magistrates only holden as confest , and they are now content to depone , that they never had any stent roll of the said taxation ; and by the chargers compt produced , he acknowledges the proportion of montross received . and further alleadges , that there being neither warrand from king nor parliament , there should be no charge or pursuit sustained for these old taxations , especially of mony , where the most part of the monyed persons lyable then , are now insolvent ; and the town cannot get their relief . but as for the land taxation , the king has given warrand to lift it , and it is still secure , being debitum fundi . the charger answered , that he being neighbour to the town , did upon their desire , delay to distress them , and held compt for them , as appears by their letters produced : and therefore it will not infer that charges may be used upon the act of parliament only , unless parties had given writ therefore , and the magistrates were obliged by the act of parliament , to have uplifted the taxation debito tempore , and payed it to the collectors ; and it must be presumed they did so , or if they did not , it was their fault , in the discussing of this cause . it occurred to the lords , that this taxation not being imposed upon the towns common-good , but upon the inhabitants severally , for their mony , and that the magistrates were not countable to the town for the taxation of mony , nor were they lyable for their magistrates , who had not this power of collection by their office , but by the commission of parliament therefore . the lords found the town and present magistrates not lyable , but prejudice to the pursuer to insist aganist the then magistrates , their heirs and executors . robert fairie contra iames inglis . eodem die . robert fairie having charged iames inglis younger of mordistoun for . merks due by bond , he did suspend and raised reduction upon minority , lesion and circumvention , litiscontestation was made upon the reason of minority , and the term was circumduced ; and he decerned . he suspends again , and insists upon the second reason of reduction , upon circumvention , and qualified it thus , that albeit the bond bear , borrowed money , yet he offers to prove by fairies oath , that the true cause was the boot between a horse and a mare interchanged betwixt the parties : and albeit the suspender gave as good as he got , yet he was induced to give this bond of . merks to boot , so that he is lesed ultra dimidium justi pretij , which in law is a sufficient ground alone to dissolve the bargain , and restore either party , actione redibitoria & quanti minoris : and next in so gross inequality , ex re praesumitur dolus . the charger answered , that the reason is no way relevant , because our law and custom acknowledges not that ground of the civil law , of annulling bargains , made without cheat or fraud upon the inequality of the price ; neither can there be any fraud inferred , upon the account of the price of an horse , which is not quantitas but corpus , and has not a common rate , but is regulat secundum praetium affectionis , and now the horse and the mare not being to be shown in the condition they were in ; the suspender cannot recal the bargain . dly , the reason ought to be repelled , because by a ticket apart with the same date of the bond , the suspender declares upon his soul and conscience , that he should never impugn the bond ; and thereafter by his second bond produced , he ratifies the same , and passes from any revocation thereof , or quarrel against the same . the suspender answered , that he was content to refer to the chargers own oath , whether in the chargers own esteem of the rate , the suspender was not lesed above the half : and as for the two tickets , the first was obtained when he was minor , and both laborant eodem vitio , the inequality still remaining without satisfaction . the lords in respect of the tickets , and ratification after majority , and that there was no fraud or deceit qualified , they repelled the reasons and decerned . fairie contra inglis . iune . . at the reporting of the former interlocutor yesterday , fairie against inglis . it was further alleadged for inglis , that he offered him to prove by fairies oath , that he was circumveened , in granting of the ratification , because fairie upon that same design drank him drunk . which alleadgance the lords repelled in respect of the bond and first ticket , wherein he declared upon his soul and conscience never to come in the contrary . steuart of gairntilly contra sir william steuart eodem die . sir william steuart having granted a bond upon thir terms , that whereas he had obtained disposition of the lands of innernytie , partly by his fathers means , and partly by his own , and partly for granting the bond underwritten ; and therefore he obliges himself to infeft iean steuart his sister and the heirs of her body , which failzying , ocertain persons substitute , his brethren and nephews , and a part of it t● return to himself , and obliges himself to pay the annualrent yearly to the said iean , and the heirs of her body , and other heirs of tailzie foresaid , during the not redemption of the said annualrent , then there is insert a reversion of the annualrent , from the said jean and her foresaids , by the said sir william upon the payment of . merks , and then a clause of requisition , that if jean after her marriage desire the money , she or her foresaids might require the same to be paid after her fathers death , and then a clause that the said sum of . should not be payable till five years after her fathers death , and after her own marriage . the said jean assigns this bond to her brother sir thomas , and he charges sir william , who , and some of the other substitutes suspends on these reasons : first , that by the conception of the bond , it was clear the principal sum was not payable till jeans marriage , and she being dead unmarried , is not now payable at all , whereupon the charger insisted for the bygone annualrents , and for granting an infeftment of annualrent to him as assigney , conform to the bond : the suspenders reasons against the annualrent , were first , that this being an annualrent accessory to a principal sum , ablato principali tollitur accessorium , so that the principal sum being now not due to any by ieans death , dying unmarried , the annualrent also must cease from her death . dly , the annualrent is conceived payable to iean and her heirs ▪ but no mention of assigneys . dly , albeit ordinarly in such obligations or infeftments following thereon , the first person is feear , and the substitutes are but heirs , who cannot come against the feears deed by assignation , or otherwayes ; yet where the obligation is gratuitous , and proceeds not upon sums of mony belonging to the creditor : but upon the free gift of a parent bestowing the sum , there the substitution implys a substitution and obligation upon the first person , and the heirs of their body , to do no voluntar deed to evacuat the substitution ; so that albeit a creditor or successor , for a cause onerous , might exclude the substitutes ; yet another heir appointed by the first person or a donator , or gratuitous assigney cannot evacuat the tailzie , and exclude the substitutes , because in such contracts , uberrima fidei , the mind of the party who gifted , and freely granted the sum , is chiefly to be considered : so that it cannot be thought to be old gairntillies mind , that his daughter might change the substitution , and elude the conditions of the bond , for the suspending of the requisition of the principal sum , till iean were married , must import that his meaning was , to give her the annualrent only till that time , and the principal sum to be a tocher if she married , which was to no purpose , if the annualrent remained perpetual ; for then the heretor would certainly redeem to purge his land , as he had done , and the sums consigned would belong to the assigney , and the clause suspending the payment thereof , if iean married not , signified nothing , sed verba sumenda sunt cum effectu ; and the meaning of the parties , and conception of the condition suspensive must be preserved . the charger answered , that he opponed the bond , wherein , without all question jean was feear , and the substitutes being the heirs of tailzie , cannot quarrel her deed , but are bound as representing her to fulfil the same ; and albeit ieans assigneys be not exprest , yet they are ever included , where they are not expresly excluded ; neither is this annualrent stated as a meer accessory , because the requisition of the principal sum may be discharged , or may become by the suspensive clause ineffectual , as now it does ; and yet the obligement or infeftment of annualrent remains a perpetual right , though redeemable at the debitors option ; neither is there by law or custom any difference or exception , whether the annualrent be gratuitous , or for a cause onerous : and for the meaning of the father , procurer of the bond , it must be understood as it is exprest , only to exclude the lifting of the principal sum by iean , upon the clause of requisition , if she were not married : and if his mind had been otherways , it had been easie to have adjected a restrictive clause , or in stead of the substitution , to have set down a provision , that if iean died unmarried , the annualrent should belong to her brothers and sisters nominat : but this being an ordinar single substitution , hath neither expresly nor implicitely any condition or obligation upon the feear , not to dispone . the lords repelled the reasons of suspension , and found iean to be feear of the annualrent , and that she might assign the same , and that the substitutes could not quarrel the same . kennedy and muir contra iaffray . eodem die . mr. iohn iaffray being presented to the parsonage and viccarage , teinds of maybol , and having obtained decreet conform , there is a double poinding raised by the heretors and possessors of fishartoun : mr. iohn iaffray craves preference as parson , and so having right to the whole benefice : the other party called is grange kennedy , and muire of mank-wood , who craved preference on this ground , that the teinds of maybol was of old , a part of the patrimony of the nunry of north-berwick , and the prioress for the time , with the consent of one nune , who was then only alive , set a tack thereof , to thomas kennedy of bargany , and gilbert kennedy his son , and to gilberts first heir , and after all their deaths for three nineteen years : the prioress having thereafter , at the kings desire , resigned the teinds of maybol to be a parsonage , did in her resignation , except the tack set to barganie , which was alwayes cled with possession , and was assigned to david kennedy of ballimore , and transferred to mr. iohn hutcheson , and by him to kennedy and muir , as to the teinds of fishartoun , whereupon they crave preference . it was answered for iaffray , that by their right produced , there is related another tack granted by mr. james bonar , parson of maybol for the time , to the lord ochiltrie , which came by progress in the person of ballimore , having then in his person , barganies tack , so that ballimores taking that right , acknowledges the parsons right , and passes from his former tack , unless in his right he had expresly reserved his former tack ; so that neither ballimore nor these assigneys can now make use of barganies tack , it being a certain ground , that the taking of a posterior tack , having a greater tack duty , or a shorter term evacuats a prior tack in that same person . it was answered , that the alleadgance is no wayes relevant , ballimore not having immediatly taken a second tack , but only finding another tack by progress in the person of the lord binnie , to remove that impediment , and shun his trouble , he purchased right thereto , but never brooked thereby . the lords found that the taking right to another tack , did not infer a passing from the former tack , unless it were proven , that the posterior tack had a greater duty , or shorter durance , and that ballimore had paid the said greater duty to bonar , or bruiked expresly by the later tack . june . . captain having taken at sea , obtained him to be declared pryze , upon this ground , that he carried clapboard , which is expresly mentioned as counterband in the commission of the admiral of scotland , given to the caper , and was the same stile with the commission recorded in the books of admirality , given in the time of war , in the year . the strangers raised reduction of the admirals decreet , on this reason , that clapboard being a general name , comprehending many kinds of boards , that clapboard could be only understood counterband , which had not a promiscuous use in peace and war , but was instrumentum bellicum , carried by the kings allies to his enemies , to be sold to them for assisting of the war , which this loading could not be , because it consisted all of knappel , cutted all at three foot and an half length , the proper use whereof is for barrelis , and is no wayes instrumentum bellicum . the lords having given commission to some of their number to visite the knappel , and to examine sea-wrights , whereupon they did examine a number , whether this timber in question was useful for war or shipping , and most deponed , that it was not , and some deponed , that it might be made use of to be pins or tubs ; but that it was not ordinarly made use of for shipping , but common oak , which was far cheaper . the lords did also before answer , ordain either party to adduce such testificats and evidences , as they could from the admiralties of neighbouring nations , what was the custom of nations , whether upon such timber as this , the ships of neuters or allies were made prize . the strangers produced several testificats ▪ one from the custom-house of amsterdame , bearing , that such timber was not accounted counterband in holland , and one from the spanish admiralty at ostend , bearing , that they knew not that by their custom , and the custom of other admiralties such timber was counterband , one from a deputy , who served in the french admiralty at dunkirk , declaring that in that admiralty , such timber was not accounted counterband ; one from the kings auctorney , and another lawer , who served in the court of admiralty of england , bearing , that during the war , none had been declared prize upon that account . the privateer produced no testificats , but alleadged that there ought no respect to be had to the testificats produced , it being easie to impetrat such , and there should a commission been direct by the lords , to the several chief admiralties of the neighbouring nations , to express what was their custom in this point . notwithstanding the lords found the ship prize , as carrying this clapboard , being contained in the admirals commission , a great part of the most able of the lords being of the contrary judgement . earl of argile contra his vassals . iune . . the earl of argile being donator to the forefaulture of the late marquess of argile , his father , pursues an improbation of the vassals rights , and craved certification . the vassals alleadged no certification against their rights , because any right the earl had was qualified by the kings gift , that he should only have lands paying . pounds , and that the rest should be conveyed to the creditors , and the creditors thereupon claiming the property of the vassals , as falling within the forefaulture , his majesty wrot a letter , declaring that it was not his meaning by the gift , that the creditors should have any more lands conveyed to them then the remainder of the property belonging to the late marquess , over and above this earls part , and that the superiority should entirely belong to the earl and his successors , by which his majesties mind and pleasure is evident , that the earl should only have the superiority , and not the property of the vassals . dly , the vassals offered to produce what rights they had flowing from the house of argile , but there could be no certification , as to what they had not , in respect of the troubles , especially no certification , for want of confirmation of the vassals rights by the king , because several of the vassals continued loyal to his majesty , during all the troubles , and some of them losed their lives in his service , opposing the said late marquess himself : so that it can never be thought to be his majesties purpose or pleasure , so to restore this earl the marquess heir appearand , as thereby to forefault the vassals , who adhered to his majesty , and who durst not in time of these troubles have fought confirmations , his majesties exchequer being then in the manadgement of these who were in opposition to him. it was answered for the pursuer to the first , that neither by the pursuers gift from his majesty , nor by the foresaid letter , there is nothing granted to the vassals in opposition to the earls right , but in opposition to the creditors , that they should have no hand in the vassals estates . likeas , his majesty by his last ratification and charter under the great seal produced , hath most distinctly and clearly exprest his meaning and pleasure , that by the foresaid gift or letter , his majesty did only exclude the creditors from the estates of the vassals , but thereby declares , that not only the superiority and casualities thereof should belong to the earl , but the property of all these who had not sufficient rights from the house of argile , and confirmations from the king , and that the earl might intent all actions competent of law , for that effect . it was answered for the vassals , that if their true condition and adherence to his majesty , had been understood his majesty would not so have declared , and that post jus quaesitum to them by the kings gift and letter , no posterior ▪ declaration impetrat from his majesty , should prejudge them , at the least , they humbly craved that the lords according to their former interlocutor , would represent the case to his majesty , that his pleasure might be known , and that his majesty might interpose with my lord argile , not to insist against the vassals , who had been loyal . it was answered for the earl , that he had given no just grounds to his vassals to expect , that though they were in his power , that he would destroy them , and annul their rights : and seing his majesty had fully and absolutely entrusted them to him , they ought to have rested upon his kindness and generosity , and not to have made all this clamour , where they have no legal defense , it being no strange nor new thing , for the king to give gifts of forefaulture without any reservation of vassals , who had no confirmation from the king , yea many times without any reservation of the forefault persons debt , and his majesty has lately so done to the marquess of huntly , to whom he gave the estate of huntly , without reservation , either to vassals or creditors , and that upon the forfaulture of the marquess of argile , who had right to , and was in possession of the estate of huntly for vast sums of mony , and the earl of argile has the gift of the remainder of his fathers estate , with the burden of more debt , then the proper debt of the house of argile would have been , over and above the debts undertaken for the house of huntly . dly , whatever the vassals might plead in point of favour : yet they do not pretend to a defense in law. and the lords being judges of the law , ought not to stop the course thereof , upon the insinuations of any party ; otherwayes they may deny the course of law to any of the leidges , when they please , upon the account that they think the law hard , or rigorous , or the kings grants made conform thereto ; and whatsoever the lords might do in the dubious interpretation of a treaty of peace , to know the kings meaning ; yet in claris ●on est locus conjecturis , nothing can be clearer then the kings meaning , under his great seal , and all the defenders can pretend , is favour , which is no point of right , nor legal defense . the lords granted certification e●n●ra non producta , conditionally , that what the vassals should produce betwixt and the tenth of november , should be received ; and left it to the vassals in the mean time , if they thought fit to make address to the king , that he might interpose with the earl in their favours , or to debate any thing they thought fit , when the earl insisted for reduction of their rights , for want of confirmations , or for mails and duties . agnew contra tennents of dronlaw . eodem die . agnem having appryzed the lands of dronlaw from mr. robert hay advocat , as cautioner for the earl of buchan , to the behove of the earl of kinghorn , pursues the tennents for removing , who alleadged absolviture , because the tennents were tennents by payment of mail and duty to the liferenter , mr. robert hayes mother , and she is not warned nor called . the pursuer answered , that the liferenter dyed before the term , and that he was content , that the tennents should be decerned to remove but at the next term of whitsonday . yet the lords sustained the defense , seing the liferenter was living the time of the warning . farquhar contra magistr●tes of elgin . iuly . . farquhar having caused a messenger charge the magistrates of elgin to take my lord lovat , and the baillies being together upon the street , about eight or nine a clock in the morning , the messenger , with several other persons present , charged them to go into an house near by , which they designed to them , and to take lovat , being then in bed , and the messenger offered to go with them , and enter first , yet the bailies did not obey , but said they would go at their conveniency , when they had conveened their neighbours to assist ; there is an execution , and instrument upon the back of the caption , to the effect foresaid produced ; whereupon farquhar pursues the magistrates for payment of the debt contained in the caption . the defenders alleadged absolviture : first , because they were no further obliged but to conveen the neighbours of the town , and send them with the messenger to assist , which they offered to do . dly , albeit themselves were obliged to take the rebel if he were showen to them within their jurisdiction , yet they were not obliged to search every house of the town for him , or to enter within closle doors . dly , the lord lovat being known to be a fierce young man , who ordinarly had a minzie attending him , they were not obliged to adventure upon him , without calling the assistance of their neighbours , which they did within an hour or two thereafter , and he was gone . the lords repelled all these defenses , in respect of the execution and instrument produced , and found the magistrats , being charged , obliged to take the rebel , and without delay to search any house within the town that was particularly shown to them , unless they had been repulsed by force , or the doors by violence keeped closse against them by the master of the house , and ordained the pursuers to adduce the witnesses in the instrument , and others to prove the particulars foresaid , to have been so done as is therein exprest . bow contra campbel , eodem die . bow stabler in edinburgh as assigney to a sum of money due by glenurchy , and also as donotar to the escheat of his cedent , being called in a double poinding , and competing ; the donator alleadged he ought to be preferred to the arrefter , because the debt in question falling in his cedents escheat , he had taken the gift of the escheat , bearing expresly all goods the rebel had , or should acquire , and this debt . being acquired , after the gift did accresce to him , the rebel not being yet relaxed . it was answered , that though the stile of the gift bear all goods to be acquired , yet that is always interpret such as happen to be acquired within year and day after the horning . it was answered for the donatar , that he oppones the tenor of his gift , and if any limitation could be thereof , it could only be of sums to be acquired within a year after the gift , and not within a year after the horning , because sometimes gifts are not taken within a year of the horning . the lords found the gift to extend to the sum in question , being acquired by the rebel within a year after the gift , and that the general clause of goods to be acquired , did extend no further then to goods acquired within a year after the gift . laird of grubbet contra more , eodem die . the barony of lintoun belonging to sir iohn ker of litledean , the lands of morbatle and otterburn are parts thereof ; there is a piece of land called greenlaw , lying in the borders of morbatle and otterburn , and there is an heretable right of the lands of otterburn granted by sir iohn ker to one young , and by that young a subaltern right to another young , bearing the lands of greenlaw per expressum , both these young's joyntly dispone to grubbet the lands of otterburn , with the pertinents , comprehending the lands of raschbogs ; in the end of which disposition there is a clause , bearing that because the young's were kindly tennents in the lands of greenlaw , therefore they dispone their right thereof , and kindlynesse thereto , to grubbet , more having acquired the rights of the lands of morbatle from sir iohn ker ; and the earl of louthian having apprized sir iohn's right of the barony of lintoun , in anno . gives a particular right of greenlaw alone , which is now also in the person of more , whereupon arises a competition of right between grubbet and more , grubbet alleadged that he has right to greenlaw , as a part and pertinent of otterburn , which he and the young's his authors have possest far beyond . years , as part and pertinent of otterburn , and offers to prove that there is standing marches between morbatle and otterburn , within which marches , greenlaw lyes on otterburn side , and that his infeftment produced granted by young to young , bears expresly greenlaw . it was alleadged for more , first , that grubbet cannot pretend greenlaw to be part and pertinent of otterburn , because by his own infeftments produced , granted by the young's , and accepted by him , greenlaw is not exprest as part and pertinent of otterburn , albeit raschbog tho lesse considerable then it , be exprest , and on the contrair , it is declared that the young's were kindly tennents of greenlaw , and disponed their kindness thereof ; aud offers to prove that the young's were in constant custom of service to sir iohn ker in armes and otherways whenever they were required , and that most of the lands on the border were set only for service , which service could not be attribute to otterburn , because it was holden blench of sir iohn , and if need be 's , offered to prove by witnesses , that when the said young's came not to the said service they were poinded therefore . dly , more offered to prove that greenlaw is a distinct tenement , both from otterburn and morbatle , and hath past as a distinct tenement since the year . and hath a known march between it and otterburn , viz. a know. dly , for grubbets pretence of bruiking greenlaw as part and pertinent of otterburn for . years , so that he might claim it by prescription , the alleadgeance ought to be repelled , first because prescription cannot proceed without an infeftmen , and it cannot be ascribed to the young's infeftment , wherein they acknowledge that they were kindly tennents of greenlaw , after which no course of time can ever prescribe a right to greenlaw , as part and pertinent of otterburn by that charter , and therefore any possession that is thereof is without infeftment . dly , there is not fourty years possession , abating mores minority . dly , there are interruptions , and therefore if greenlaw be either a distinct tenement , or part of morbatle , it belongs to more . it was answered for grubbet , that he and his authors possessing greenlaw these years past , as part of otterburn gives him sufficient right thereunto , notwithstanding of any acknowledgement in the charter , or without the charter before that time , for prescription may change part and pertinents , so that which was once not acknowledged to be a part by possession , years thereafter may become a part , and that acknowledgement never being made use of prescribes and the charter in which it is , is a sufficient title , both for what was parts the time of the charter , and what becomes thereafter parts by prescription . dly , the acknowledgement of a party having right is of no effect , when by demonstration of the right it self the contrair appears , as here , therebeing an anterior right of property of the young's produced before that acknowledgement . dly , the ackowledgement is not , that they were only kindly tennents , otherwise it is very well consistent with the property , that they being first kindly tennents , and that kindliness being thought more favourable to maintain possession in these places , then any heretable right , they might very well dispone otterburn , whereof greenlaw is a part , and might also dispone their kindness of greenlaw they had before the right of property ; neither doth it infer , because raschbog is exprest as pertinent of otterburn , which hath been upon account that raschbog was then unclear , that therefore greenlaw is no part thereof , or else it could have no more parts but raschhog , there being no more exprest ; and as for the alleadged services done by the young's to sir iohn ker , they cannot infer that the young's were then tennents of greenlaw , because such services being only general , and no particular services accustomed by tennents , they might have been performed to sir iohn as superior , or as out of kindness to a great man in the countrey , and it s offered to be proven ( if need be 's ) that hundreds granted such services , who were not tennents , so that unless there were a tack , inrolments of court , or executions of poinding produced to instruct services as a tack-duty on greenlaw , it is irrelevant . the lords by a former interlocutor had found that by the acknowlegement in young's charter , or any thing therein was not sufficient to exclude greenlaw from being part and pertinent of otterburn , but they found that is more would alleadge a tack , or inrolment of court , to the young's of services for greenlaw , it were sufficient , or otherwise if he would alleadge constant service of the young's , by riding &c. with sir iohn , and there being poinded by him , when they were absent , they found the same with the acknowledgement in grubbets right to exclude grubbet from greenlaw , and if these were not alleadged , they ordained witnesses to be examined upon the ground hinc inde before answer , upon these points , whether greenlaw was known to be a distinct tennement , both from otterburn and marbotle , or whether it was known to be part and pertinent of either , and what were the marches and meithes thereof , and what services were done by the young's to sir iohn ker , and if such services were done by others , not being moveable tennents . barclay contra barclay , iuly . . barclay of towy having but one daughter , and his estate tailzied to heirs-male , his nearest heir-male being the old tutor of towy , above . years of age , and having also but one daughter , and neither father nor daughter being persons of much discretion , captain barclay his next heir-male having also but daughters , he dispones his estate in favours of his own daughter ; and it being rumored that captain barclay pretended a bond of an hundreth and three thousand pounds , granted by towy to him , that thereby he might prefer him to the tutor , and that the tutor as heir-male , had also granted several dispositions to captain barclay of that estate : towies daughter being an infant , her friends did also procure a disposition from the tutor to her , and she pursues a reduction and improbation against captain barclay of the foresaid bond , and dispositions made to him , he compears , and produces a late disposition made by the tutor , and alleadges that he had the bond foresaid , and two dispositions from the tutor , anterior to this produced , but that a person to whom he had entrusted them , had carried them away , but there being produced in the process attested doubles of the former dispositions , under the hands of nottars . the pursuer craved , that seing the witnesses alleadged insert might die , and the captain of purpose keeped up the principals , that the witnesses might be examined upon what they know of the truth , or forgery of the saids dispositions . which the lords granted , the fame , and suspition of the forgery being so great , though ordinarly they do not examine witnesses upon the forgery of a writ , till the principal be produced , that the witnesses may see their subscriptions , whereupon steel one of the witnesses compeared , and deponed , acknowledging the forgery , and the way of contrivance of it , in which the captain made use of him , whereupon the lords proceeded to examine the tutor , who stifly stood to the verity of the dispositions , as being truly subscribed by him , but differed in the date , and in the persons who were witnesses to the subscription : the captains son in law being also examined , whether or not the captain had employed him to corrupt the witnesses , and if he had written any letter to him , to that purpose produced a letter , mentioning some things by word which he should diligently go about , and being asked who the bearer was , deponed that he was robert ogilvy the tutors servant , who being in the house , and presently called to the bar , upon oath being interrogat , whether he had brought north any letter from the captain to his good-son , deponed that he had brought no letter from him to his good-son , or any other , and thereafter the letter being showen him , and confronted with the captains good-son , he deponed that he did bring that paper , and delivered it to the captains wife , but he thought it was an order , not being sealed , and being interrogat whether he had any message in word from the captain to his good-son , deponed he had none , and upon reading of the letter , bearing the contrair , and confronting with the captains good-son , he acknowledged that he had order to cause his good-son bring over the witnesses to edinburgh ; and the captains good-son further acknowledged that ogilvy had desired him to deall with the witnesses , to stand to the truth of the writs , he stifly denyed that point . the lords having considered his grosse prevarication , and contradictory oath , ordained him to be put in the irons , and the next day to stand in the pillary betwixt ten and twelve , and a paper on his brow to declare the cause , and did declare him infamous , and appointed him to continue in prison till further order . mr. william kintor contra the heirs and successors of logan of coat-field . iuly . . logan of coat-field having become cautioner for the tutor of burncastle , an inhibition used upon the act of caution , mr. william kintor having right by progress from burncastle , obtained decreet against the representatives of the tutor , and of coat-field the cautioner , for payment of the annualrent of , pounds , due to the pupil by the marquess of hamiltoun , and the like sum due by the earl of bucclengh , in respect that the tutor was obliged to have uplifted these annualrents , and to have employed them for annualrent , and thereupon pursues a reduction of the rights granted by the tutors cautioner , as being granted after the cautioner was inhibited , these acquirers raise a reduction of mr. williams decreet , and repeat the reasons by way of defense , alleadging that the tutor nor his cautioner were not obliged for the annualrents due by the marquess of hamiltoun and earl of buccleugh , because they were in responsal hands , and the pupil had no damnage , for it was free for the tutor to uplift the annualrents of pupils money , when secure , at any time during the pupillarity , but here they offer to prove the tutor died durante tutela , and so was not lyable when he died , to uplift these secure annualrents , or to have employed them . the pursuer answered ▪ that the lords had already found at the same pursuers instance against iohn boyd , that the tutor was lyable for annualrent , not only pro intromissis , but pro omissis , and for the annualrent of the pupils annuals a finita tutela , which is finished , either by ending the pupillarity , or the death or removal of the tutor . it was answered , that the lords interlocutor was only in the case that the tutory had been finished in the ordinar way by the age of the pupil , for that way of ending thereof , could only been foreknowen by the tutor , that within the same he might lift the pupils annuals , and give them out on annualrent , but he could not foresee his own death , but might justly think he had time before the expiring of his tutory , to lift and employ , and so the tutor not having failed in his duty , his cautioner is free . it was answered , first , that by the lords dayly practique tutors are lyable for the annualrents of rents , of and within a year after the rents are due , and there being so much parity of reason in annualrents , it cannot be thought just that the tutor was not obliged to lift them till the end of his tutory , for albeit he might have keeped them in his hands unemployed , and only to leave them employed at the ish of his tutory , yet he was obliged to uplift them , and if by any accident , as being preveened by death , he did not employ them , that accident should be on his peril , not the innocent pupils . dly , if need beis , the pursuer offers to prove the annualrents were uplifted by the tutor , and so these that represent him , and his cautioners , are lyable for annualrent therefore , at least from the death of the tutor . the lords found that the tutor was neither obliged to lift , nor give out on annual the annualrents of his pupil , if the debitors were responsal , but only once betwixt and the end of the pupillarity ; and if he died betwixt and the end of the tutory , he was free both of the annual and annualrents thereof , but if he did actually uplift the annalrents , they found that it was sufficient to employ them any time before the tutory ended , and found that his heir was lyable for annualrent , not from the tutors death , but from the end of the pupillarity , and that he could be no further lyable then the tutor , if he had lived , in respect that subsequent tutors were obliged to lift these annualrents from the former tutors heirs , and employ them . this was stoped to be further heard . garner contra colvin , iuly . . james colvin having apprized the lands of lady-kirk , and some tenements in air , and being infeft therein ; garners wife and bairns raise a reduction , and alleadge that the apprizers right is null , as to the tenements in air , because iohn garner had never right thereto , but the right was originally granted to young iohn garner the pursuer , by his mother brother . the defender answered . that the said right must be affected with his apprizing , as if it had been in the fathers person , because young garner was then an infant in his fathers family ; and albeit the right be granted by his uncle , yet it is necessarly inferred to be acquired by the fathers means , because it bears not for love and favour , but for sums of money , and the uncle had bairns of his own . it was answered , that albeit the right had been acquired by the fathers means , yet its anterior to the apprizing , and sums on which it proceeds , whereupon nothing can be taken away but what is posterior thereto , albeit there were a declarator and reduction intented for that purpose , as there is none . the lords sustained the alleadgeance , and reduced the apprizing as to these tenements . dly , the pursuer alleadges the apprizing ( as to lady-kirk ) must be reduced , because the pursuers produce a prior infeftment granted by iohn garner to his wife in liferent , and his bairns in fee. it was answered , that the said infeftment was base , never cled with possession . the pursuers replyed , that the fathers liferent not being reserved , the continuation of possession was as lawful administrator to the pursuers bairns , and if need be 's its offered to be proven he had a factory from them . the defender answered , that a fathers possession being continued , was never found to validate a base infeftment granted to his children , albeit his liferent were expresly reserved , but it s ever accounted a latent fraudulent deed , and a factory can be of no more force then a reservation , otherwise it were impossible to obviat fraudulent conveyances betwixt fathers and children . the pursuer answered , that albeit such reservations are not valide in rights freely granted by fathers , yet it meets not this case , especially where there was an anterior onerous cause , iohn garner being obliged by his contract of marriage , that what lands he should acquire , should be to his wife in liferent , and to the bairns of the marriage . the lords found that the bairns infeftment granted by their father , albeit he had possest by a factory from them , was not cled with possession , or sufficient to exclude a posterior publick infeftment , and that the clause in the contract was but to substitute the children heirs to their father in the conquest . here it was not alleadged that the factory was made publick by process founded at the fathers instance , or otherwise in this process . the defender to satisfie the production of an assignation , upon which the apprizing proceeded , which the pursuers offered to improve as false in the date , and the defender now produced another assignation of the same date , and declared he abade by the same as of that date , and that it being a missing , he had caused the cedent to subscribe another of the same date with the first , which did expresly bear reservation of another assignation formerly subscribed , which he did also bide be as truly subscribed , but not of the date it bears , but of the date of the true assignation insert therein . the lords sustained the assignation now last produced , and did not quarrel the other assignation , though another date was insert , then when it was subscribed , for the cause foresaid . alexander glasse contra iohn haddin ; eodem die . alexander glasse and william reid having a proper wodset of the lands of alairtnenie , and iohn haddin being also infeft in an annualrent forth thereof some days prior , compet for the maills and duties ; haddin alleadged that both infeftments being base from the same author , his infeftment of annualrent is preferable , because prior and first cled with possession . it was answered , any possession he had was by a factory from glass . it was replyed , that he offered to prove possession before that factory . it was duplyed that by haddins back bond produced , bearing expresly that glasse had had a valide right to the maills and duties of the lands , and that he was in possession thereof , and that haddin had accepted a factory from him , and was obliged to compt to him for the maills and duties without any reservation of his own right , this was an unquestionable homologation , and acknowledgement of the right , and equivalent to a ratification thereof . the lords found by the back bond produced of the tenor foresaid , that haddin had so far acknowledged reid and glasses right , that he could not quarrel it upon his own right , but he proponing that there was a reservation of his own right related to in the back bond , the lords found the same relevant he proving possession before the other party , and before the factory . the old colledge of aberdeen contra the town of aberdeen , iuly . . the principal and the remanent members of the old colledge of aberdeen , having set a tack to doctor dun of his teinds during the principals life , and five years thereafter , and bearing an obligement to renew the like tack from time to time for ever . the doctor mortified the same to the town for plous uses , after the death of that principal many years . the colledge now pursues the possessors of the lands upon an inhibition for the full value of the teinds ; and the town defends upon the foresaid tack . it was answered for the colledge , that the tack is only for the principals life , and five years after , which is expired ; and as for the new obligement to renew such tacks for ever . it was answered first , albeita tack were conceived in these terms it would be null , as wanting an ish . dly , obligements of the present incumbents in universities are not obligator , but where there is an equivalent cause onerous received for the good of the university . it was replyed for the town , that an obligement to grant a tack by them who can grant it , is equiparat to the tack it self , which requires no other solemnity , as an obligement to grant an assignation , is equivalent to an assignation , and that there is here a cause onerous of the universities obligement , because the tack bears expresly . merks of grassum , and that the former tack-duty was only ten merks , which by this tack is made . merks , and albeit it want a desinit ish , yet it must be valide for a renovation during this principals life , and five years after , and it is homologat by the colledge , who have received the same duties several years since the first tack expired . it was duplyed for the colledge , that this tack is not valide for any time after the first ish , because by the act of parliament . tacks by beneficed persons under prelats , are prohibit for longer time nor their own life , and five years after , and these teinds are a part of the benefice mortified to the colledge , and they must be accounted as beneficed persons , and albeit the teinds were augmented to . merks , yet they are worth . merks ; and for the receipt of the duties after the first tack , it is per tacitamrelocati●nem , and no homologation of the obligement to renew the tack . the lords found that the colledge was not comprehended under beneficed persons , but found that there was no sufficient . cause onerous alleadged for this obligement of renewing a perpetual tack , and would not sustain the samine in part , and found it totally null , and that the receiving of the former duties was no homologation thereof . captain wood contra boyneilson , eodem die . captain wood having taken a ship of norway , whereof boyneilson was master , called the raphael prize , she was adjudged by the admiral , and there is now reduction intented of the decreet of adjudication , in fortification whereof the privateer insists upon two grounds . first , that this ship belongs to the kings enemies , with a considerable part of the loadning , viz. . dails as is acknowledged by the skippers deposition . dly , whereas she pretends to have been bound for london upon the kings proclamation , giving liberty to all his subjects to import timber from sweden and denmark , by the ships and mariners in these countreys , though then in enimity , yet the said proclamation requires that all such ships shall find caution at the custom-house to return straight to england , without going aside into an enemies countrey , and requires the lord admirals pass ; but this ship at the time of the adjudication did not pretend to the duke of york's pass , but only to the duke of richmond's pass as admiral of scotland , whereas the proclamation warrands only the duke of york to give such passes , neither doth he produce now any pass from the duke , or any extract of a pass from him . it was answered for the strangers , and for iohn dyson citizen of london , that they having contracted conform to the kings proclamation for importing timber , and having found caution and obtained a pass conform to the proclamation the ship and loadning cannot be made prize , upon the skippers oath , that they had aboard . dails belonging to him and the company . first , because the skipper is testis singularis . dly , by the constant custom sailers have portage dails allowed . dly , the number of the dails is insert but with figures , and might easily have been altered after the testimony , from . by adding one , and from . by adding a cipher , neither of which would have been sufficient to infer confiscation . thly , iohn dyson citizen of london , having bona fide contracted with the stranger for importing . dails , albeit the skipper had foisted in some more , it cannot infer a confiscation of a loadning belonging to him the kings subject , contracting bona fide , whatever it may infer as to the strangers ship and his own dails . as to the second point anent the wanting the duke of yorks pass , there is produced a testificat of the dukes secretaries , and the ship having been bought from the privateer by captain lye , who carried her to london , the duke gives her a pass to return from london to norway , bearing that he had given her a former pass to come into england ; there is also produced his majesties letter , that he is sufficiently informed that this ship is authorized by a sufficient pass , and therefore ordering her to be restored with testificats from the customers , that caution was found there , and the testimony of the skipper and a sea-man taken at london , bearing that captain lye having bought the ship from a privateer , desired the skipper ( then in prison ) to show him the duke of yorks pass , which when he shew'd him , he pulled it out of his hand to secure the ship ; against all which it was objected , that all these were impetrat after the ship was declared prize , and that it is the more suspitious , that at the time of the adjudication there was not so much as mention made of the duke of york's pass , though the duk of richmonds pass was rejected , as not sufficient without the duke of yorks , and that as yet there is no extract , of the pass out of any record ; and as for his majesties letter it hath been impetrat suppressa veritate , and cannot take away a parties privat right , but is salvo jure , as are all acts of parliament done by his majesty , and three estates incitata parte , much more such a letter , as the lords found in the case of the castle of riga , and though there had been a pass from the duke of york , it is likely not to have been of this date but for a former voyage . the lords found the alleadgeance for the privateer , that there was . dails aboard belonging to the kings enemies relevant to confiscat the ship and dails , but not to confiscat iohn dysons dails , his majesties subject , who acted bona fide if he can make out a pass , and before answer to that point , grants commission to sir robert murray to try if there were a record keeped of the dukes passes , and if therein there was a pass for this voyage , and to send down the duplicat thereof compared with the principal , and signed by sir robert , and to try at the records of the custom-house , if caution was found there , and if there was no records of passes , to take the oath of captain lye concerning the pass alleadged taken by him , and ordained the members of the court of admirality to be examined upon oath , whether the testimonies in figures for dails was given in figures as it bears , and found the skippers testimony alone to prove not only against himself , but the owners , because he was entrusted by them in this affair . duke hamiltoun contra the feuars of the kings property , iuly . . the duke of hamiltoun as collector-general of the taxations , having charged the feuars of the kings property for payment of this current taxation , several of them suspended upon this reason , that by the act of convention there is abatement given of a third part to such shires as in the west and south , in regard their retours are higher then the rest of the countrey , and yet these of the kings property are charged for the whole . it was answered , that that abatement cannot extend to the feuars of the property , because in all former taxations they were distinct both from the temporality and spirituality , and therefore though by the act of convention , the temporality of these shires be eased , it will not extend to the property , especially seing the reason of the act cannot extend to them , for the feuars of the property did bear no taxation till the year . and then there was a commission granted for retouring them , and that complaint of the high retours of the shires being then known , these of the property would doubtless endeavour to have easie retours . it was answered , that the act of convention expresly regulating the taxation , both as to the spirituality and temporality , it cannot be thought but that these members did comprehend the whole , and seing the property cannot be of the spirituality , it must be of the temporality , which hath the abatement as to these shires without exception , and albeit the property was lately retoured , yet there being no rule to estimate a merk-land , or pound-lands retour by , or how many pounds of real rent makes a pound of retour , there could be no other rule , but to make the retour of the property proportional to the remainant lands lying in that shire , so that where the other lands are generally highly retoured , it is evidently presumed that the property was so retoured , and seing the property did of old pay no taxation , it were strange now to make it bear more then the other temporal lands about it . the lords found that the property of the shires had the same abatement with the rest of the temporality in these shires . earl of marishal contra leith of whitehaugh , eodem die . iean keith having a right to a wodset of the mains and miln of troup , and being married to iohn forbes , she disponed the heretable right to his brother , which right is now by progress in the person of leith of whitehaugh , isobebs brother raised a reduction in anno . of the right granted by her to her husbands brother , and now his right and an assignation to the said process coming to the earl of marishal , and by him to lesmore , they insist in their reduction upon the reason of minority and lesion . it was alleadged for the defender ; first , no process , because prescription is past since the right was granted by isobel keith , which cannot be interrupted by the reduction in anno . because it is evident by inspection of the reduction that it is but filled up of late and that the executions there of are new , so that it signifies no more nor blank paper , or a blank summonds till the reasons be filled up and insisted in before which prescription was compleat . dly . absolvitor , because the right granted by isobel keith to her husbands brother , was to the husbands behove : likeas there was a blank bond granted by the brother to the husband so declaring , and there being no other contract of marriage , this disposition must be understood as granted to the husband in contemplation of the marriage , and being but the right of . merks , which was but a competent tocher , it was no lesion to dispone the same to the husband , or any to his behove , and offered to prove by the brothers oath that there was such a back bond , and that yet there is a back bond by him to whom the brother disponed . the pursuer answered to the first , that interruption is sufficient by any act whereby the party having right , may follow the same , so that summonds ( albeit not legally execute ) would yet make an interruption , though no sentence could follow thereupon , and a summonds being blank , must be presumed as comprehending all the grounds and reasons that might have been filled up therein , but here the lybelling of the interest , which is not with new ink , bears expresly that the pursuer as heir to his sister has good interest to revock and reduce deeds done by her to her prejudice , which doth imply the reason of minority and lesion . to the second , albeit the disposition by the wife had been to the husband , yet it is simply reduceable upon minority , there being no remuneratory obligation upon the part of the husband providing her to a jointure , in which case if the provision had been suitable , there would have been no lesion , and if not suitable , the lords might reduce it in part , or rectifie it if done in the wifes life , but here she having nothing from the husband , and being dead she cannot now receive a jointure , and so the right is reduceable in totum , especially seing the said iohn forbes did violently carry away the said isobel keith , and married her without her friends consents , and must be presumed by the same means to have purchased the same disposition from her without any remuneratory provision to her . dly , there is not , nor cannot be known any such back bond , and it were absurd that the husbands brothers oath alone should prove the same in favours of his brother . the defender answered , that albeit there was no jointure provided , yet the law provides a terce , which ofttimes is better nor the jointure . the pursuer likewise answered , that the law did provide the jus mariti , and the courtesie , so that either party ought either to acquiesce in the provision of law , or the provision of parties must be mutual . the lords repelled the first defense , especially in respect of the manner of libelling the title , and found not the executions of the first summonds to appear new , and therefore sustained them , unless the defender would improve the same ; they found also that alleadgeance , that the disposition was to the husbands behove , was not to be sustained , especially seing no back bonds were produced , or offered to be proven , and that the manner of probation offered was no way sufficient , that there was no provision for the wife . duke hamiltoun contra the laird of blackwood , eodem die . the duke of hamiltoun pursues the laird of blackwood , that it may be declared that he is his vassal in his lands of blackwood , on this ground , that the late marquess of hamiltoun having disponed to the king the abbacie of arbroth , did in consideration thereof , in anno . get a charter from the king of the barony of leshmahago ; a part of the abbacie of kelso , of which the lands of blackwood were holden waird ; which lands having been apprized , and the apprizers infeft holden of the king , the laird of blackwood having thereafter disponed them to major ballantine , by his contract of marriage with blackwoods daughter , and the major having purchased a right from the apprizers , both upon blackwoods procuratory of resignation , and the apprizers , he resigned the lands in the marquess hand , and did take his infeftment holding waird of him ; likeas this blackwood who is heir of provision to the major as procreat by marion weir blackwoods daughter with william lowry , hath no other right but as heir of provision to the major , and yet he hath taken infeftment holding of the king ; likeas the said william lowry his father as lawful administrator , and taking burden for him , has obliged himself by his bond , that so soon as the marquess should obtain a right to the superiority , he should take his infeftment from him waird , and by the act of parliament . ratifying the act of annexation . it is expresly provided , that any right to the superiority of kirk lands granted by the king , yet notwithstanding the annexation shall be valide , as to such vassals who have , or shall consent to the rights of the persons obtainers of the saids superiorities , so that major ballantine having consented , by taking infeftment in manner foresaid , he and his successors must continue the dukes vassals . the defender alleadged absolvitor , because any right the duke has , or the marquesse had to the superiority is absolutely null by the saids acts of parliaments , annexing the superiority of kirk lands to the crown , so that unless there had been a dissolution in parliament , no right of these superiorities is valide , but null , and the exception of the said act . is only in the case of the vassals consenting to a right of superiority , ita est there can be no right but legitimo modo by dissolution . the pursuer answered ; first , that albeit the king , or his officers might quarrel his right as not proceeding upon dissolution , or any other having their right upon dissolution , yet the defender cannot , especially seing he hath homologat the pursuers right , his predecessors to whom he is heir , having taken infeftment thereupon ; likeas the pursuer has satisfyed the kings interest , by giving bond to the kings advocat to hold the lands waird of the king in the same way as the defender would , therefore the advocat hath declared he will not concern himself . dly , the pursuer having obtained a new right of the king since the act of parliament . the same must be valide to him as to these vassals who have , or shall consent , because the exception of the act expresly bears , that such a consent is equivalent , as if the vassal had resigned in the kings hands in favour , and for new infeftment to the interposed superior , and had then taken a subaltern right of him , against which there can be no pretence , so that ( by a right in the exception ) it cannot be meaned a perfect right proceeding upon dissolution , because that would be valide without the vassals consent , but that the vassals consent being equivalent to a resignation , makes the right valide without dissolution . which the lords found relevant , the duke proving a sufficient consent , but it was not decided whether major ballantines taking infeftment would import a sufficient consent conform to the exception of the act , so that he might not thereafter return to the king. iack contra iack , iuly . . patrick iack having only three daughters , margaret his eldest daughter married iohn dowglas , and there is a contract betwixt iohn dowglas and the tutors of the other two daughters , dividing there fathers inheritance in three parts , and mutally disponing the same with procuratory and precept , and there being a salmond fishing holding waird of the king , which fell to margarets share , iohn dowglas takes infeftment upon the tutors precept , disponing for the other two that fishing after his death , the said margaret takes a gift of recognition of the said salmond fishing , as falling by the infeftment taken by iohn dowglas without consent of the superior , and thereupon pursues declarator , katharin iack and robertson her spouse , and the other sister , pursue a reduction of the contract of division , as done by their tutors in their minority to their lesion , and in answer to the recognition alleadged . first , that this recognition occurred in the time of the english when recognitions were excluded , and such infeftments by the law then in use were allowed . dly , the infeftment here granted proceeded only upon the disposition of their tutors , whose acts except in what is proper to the administration of their office is void . it was answered as to the first , that they opponed the decision in the case of sir george kinaired against the vassals of the master of gray , by which it was found that infeftments taken of waird-lands without the superiors consent , even during the usurpation , inferred recognition , and to the second , that the division among the daughters was an act of administration , that the daughters might have been compelled to do . it was answered , that there is no such decision produced , and that in the case of the vassals of gray , they did continue in possession several years after the kings restitution , and did not take confirmations ; but here the said margaret one of the sisters who should have taken confirmation before she had continued possession , cannot have benefit by her own fault , and make use of a gift of recognition in her own person , proceeding upon her own and her husbands fault , neither can the division be a lawful act of administration of the tutors , in so far as they granted them precepts of seising to be holden of their pupil , which no law could have compelled them to do , but only procuratories of resignation , likeas it was iohn dowglas fault not to make use of the procuratory , but of the prccept . the lords found no recognition incurred , but because the parties might have been troubled if any other had taken the gift , they ordained the other two sisters to pay their part of the expences of the gift . mr. archibald dennistoun contra semple of fulwood , iuly . the lairds of fulwood elder and younger , and dennistoun being appointed overseers by culgrain to his daughters , the eldest daughter being married to mr. archibald dennistouns son , there is a contract betwixt mr. archibald and the three overseers , taking burden for the daughters , by which the estate of culgrain , and mr. archibalds estate are both settled in the person of his son , and the overseers are obliged to cause the minors , and their curators become obliged to relieve mr. archibald of . merks . mr. archibald charges fulwood upon the contract , who suspends , alleadging that the clause can only import that he is lyable for his own part , but not in solidum , seing the clause bears not the overseers to be bound conjunctly and severally . it was answered , that the obligement is not for payment of a sum , which is divisible , but for doing a fact which is indivisible , viz. the minors being become bound to relieve , which is all one as if the overseers had been obliged to cause the minors subscribe a bond of releif , which could not divide , but would have obliged every one of them in solidum , it was answered , that the result of the obligation being releif of sums which are divisible , the obligation at least the damnadge and interest succeeding in place thereof ought to be devisible , for the obligation being factum alienum imprestable to the overseer , and the third overseers that refuses to concur being the chargers own brother ; there is no reason that the overseers who had no office or obligement , but were only overseers which is not nomen juris , should be lyable for the chargers own brother , his third part thereof . the lords found them only lyable pro rata . barclay contra barclay , iuly . . the laird of towy having only one daughter elizabeth barclay , and his lands being provided to heirs male , dispones his estate to his daughter , in which disposition there being not only a procuratory of resignation , but a prcept of seising , the said elizabeth was infeft upon the precept , and being an infant , her friends thinking it might infer recognition , took a gift of the recognition , and now pursues declarator thereon , against the tutor of towy heir male , and captain barclay as pretending right by disposition to the estate . it was alleadged for the defenders absolvitor , because the disposition granted by umquhile towy to the pursuer his daughter was granted on death-bed , at the least it was retained by the defunct , and never delivered till he was on death-bed , and thereby it is null , and cannot infer recognition , because the law upon just consideration that parties are presumed to be weak in their minds , and easily wrought upon , after contracting of the disease of which they died , has incapacitat them then to dispone their heretage , or to take it any way from their nearest heirs . dlie , albeit the disposition had been subscribed , and delivered in leige poustie , yet the seising not being taken till the defunct was on death-bed , recognition cannot be incurred , because it is not the disposition , but the seising that alienats the fee , and infers recognition . the pursuer answered ; first , that death bed is only introduced in favours of heirs against other persons getting right but hath no effect against the superi or , who is not to consider whether the vassal was sick or whole , but whether he hath indeavoured to withdraw himself , and his heirs in the investiture from their superior . dlie , death-bed is never competent by way of exception , but by way of reduction . dlie , the disposition being in favours of the disponers only daughter , reserving his liferent , albeit it wants a clause dispensing with the delivery , it being subscribed in leige poustie , it is as valide as if it had been then delivered , and if need be 's offers to prove that it was delivered in leige poustie to the lord frazer for the pursuers use , so that albeit seising had been taken when the disponer was on death bed , recognition must be incurred , because the vassal should not have granted a precept of seising , and delivered the same without reservation , and the having of the precept of seising being always accounted a sufficient ▪ warrand for taking of seising , and that the warrand was given at the delivery of the precept , albeit the seising was taken when the disponer was on death-bed , yet the warrand was granted when he was in leige poustie , by the precept , which bears in it self to be an irrevockable power and warrand to take seising , so that the vassal had in his leige poustie done quantum in se fuit , to alienat this waird fee. the lords found that if the disposition containing the precept , was delivered to the vassal without reservation in the disponers leige poustie , it would infer recognition , though the seising were taken after his sickness , and found that if the disposition and seising were on death-bed , it would exclude recognition by way of exception , recognition not being a possessory , but a petitory , or declaratory judgement ; but seing it was alleadged that the disposition was delivered to the lord frazer , the lords before answer ordained the lord frazer to depone from whom , and when he received the said disposition , and whether he had any direction to take seising thereupon , or any direction to the contrair , and also that the bailly , atturney , notar , and witnesses in the seising should depone by what warrand they did proceed therein . earl of crawfoord contra rig , iulie . . the earl of crawfoord pursues rig for payment of the half of the expence of the building a park dike , belonging to the earl in so far as it is built , or to be built upon the march betwixt him and rig , and that upon the act of parliament . anent the parking and inclosing of ground , whereby for the encouragement of them that inclose it , it is provided that whatever part of the park or inclosure falls upon the march , that part shall be built upon the equal charges of both the heretors . the defender alleadged absolvitor , because the march betwixt the earl of crawfoord and him is not a dry march , but a burn , and the act cannot be understood but of dry marches , otherwise though there were a water intersected , the heretor building a park dike upon his own side of the water , might require his neighbour on the other side of the water to pay the half of his charges . dlie , some parts of the marches betwixt the pursuer and defender are mossy and bogy ground , upon which no dike can stand . the pursuer answered , that he opponed the act of parliament , and that any meith betwixt his land and the defenders is an inconsiderable stripe of water , which oftimes is dry , and cannot hinder a stone dike to be built in the very channel of it , and for the other if the pursuer build not the dike , the defender will not be lyable . the lords found the reply relevant , and ordained the stripe of water either to be wholly without the dike , or if the defender pleased that it run a space within the dike , and a space without the dike that either party might have the benefit of watering thereat . town of perth contra the weavers of the bridg-end of perth . eodem die . the town of perth pursues the weavers at the bridg-end of perth either to desist from weaving in their suburbs , or otherwise to pay a duty accustomed to be payed by the weavers there to the town for that liberty , conform to the several tickets produced , and that conform to the . act parliament . entituled the exercise of crafts within suburbs adjacent to burghs forbidden . it was alleadged for the defenders , and sir george hay thier master absolvitor , because the said act of parliament has been in continual desuetude , and was never in use . dly though it were yet effectual , yet it can only be understood of such suburbs as have no priviledge , but where the suburbs are contained in any burgh of regality or barony , or within any barony though having no burgh , the priviledges of these erections warrants the exercise of all crafts-men , so that these websters living within the barony of pitcullen ; cannot be upon that pretence hindered from exercising their trade . the pursuer answered , that he opponed the act of parliament being general , and that it was a standing law unrepelled , and that the obligations of the weavers living there to pay a duty for their liberty of weaving , did preserve the act in vigour , at least as to this burgh . the defenders answered , that these weavers being in no incorporation , the tickets granted by any of them , could prejudge none but themselves , and being without the consent of the heretor , cannot infer a servitude upon his barony without his consent , more then his tennents could infer a thirlage without his consent . the lords found that the said act of parliament did not reach to the inhabitants of any barony , and that the tickets of the weavers could not infer a servitude upon the barony , and therefore decerned only against the granters of the tickets personally , for the duties contained therein . iames gray contra margaret ker , iuly . . iames gray having apprized certain lands , and having charged the superior , pursues for mails and duties , compearance is made for margaret ker , who produces her infeftment granted by her husband the common author , prior to the apprizing , and craves to be preferred . the pursuer answered , that her infeftment being granted by her husband to be holden of the superior not confirmed is null . to the which it was answered , that an infeftment of a liferent granted to a wife in implement of her contract of marriage is valide though not confirmed . the lords repelled the alleadgeance , and found the relicts infeftment null , and not sufficient to defend her possession . mr. iohn eleis contra inglishtoun , eodem die . crichtoun of crawfordstoun having only one daughter , disponed his estate to iohn brown of inglishstoun , in contemplation of the marriage betwixt him and crawfordstouns daughter , and to the heirs-male of the marriage , which failzying , to certain other heirs substitute , bearing a power to burden the estate with . merks to whom he pleased , and containing a clause that the disposition should be valide , though not delivered in his lifetime ; and after inglistouns marriage , crafordstoun grants a bond relating to his former promise of . pounds to inglistoun , and the heirs of the marriage , ( which failzying : ) after which words there follows a blank of a line and a half , and the sum is payable at the first term after crawfordstouns death ; the intent of which bonds seems to have been , that thereupon apprizing might proceed to denude the heirs of line , and to compel the superior 〈◊〉 receive inglistoun . thereafter crawfordstoun made a second tailzy , wherein inglistouns son , with his daughter being then born , is feear , and several members of the tailzy altered ; and after that he made a third , wherein his daughter ( inglistouns wife ) is feear , and the substitutions much like the former . after his death these papers being exhibit , at the instance of two of his daughters , heirs of line , married to mr. iohn eleis , and alexander tran upon a process ad deliberandum , and being craved up again from the clerks , by the tutor of inglistouns son. it was alleadged for the heirs of line , that the saids writs could not be delivered up , because they not having been delivered by the defunct in his leige po●stie , could not prejudge his heirs of line ; and albeit his first disposition contained a dispensation for not delivery , which ordinarly is accounted sufficient , yet where it appears the defunct altered his purpose , both by the posterior dispositions of a different tenor , and several missive letters showing a resolution after all to alter the same the said clause cannot be effectual , and there is no pretence for delivering the bond , and the two other dispositions , seing they want that clause . it was answerd , that the dispensation with delivery is in all cases equiparat with the delivery it self , and that the remanent writs ought also to be delivered , though they bear not that clause , because the heirs of line being absolutely excluded by the first disposition , they have no interest to quarrel the other dispositions , and albeit it the posterior dispositions were to different effects , the want of dispensation therein might make them ineffectual ▪ yet where they are but qualifications of the first tailzy they are accessory thereto , and must be delivered therewith , seing the defunct so long as he keeped the writ in his own hand , might still alter the same at his pleasure . it was answered , that the posterior dispositions wanted the clause , reserving power to the defunct to leave to whom he pleased the . merks , and it is like he hath left it to his other daughters , and the bond may be made use of to overturn his whole intent , and alter the tailzy . the lords found , that seing the first disposition contained a dispensation with delivery , and the rest being accessory thereto , and only altering in somethings the tailzy , but still to the first heir of tailzy , being the son of inglistouns marriage ; they ordained them all to be delivered up , and the bond also , but with this declaration , that the provision anent the . merks in the first disposition , should be holden as repeared in the rest , that the heirs of line might be in no worse case then by the first , and that the bond should only be made use of according to the substitutions , and clauses of the tailzies . crawford contra anderson , iuly . . iohn fleeming having made a disposition of his lands to william anderson provost of glasgow , sometime thereafter william grants back-bond , declaring the disposition was upon trust , to the behove of fleemings creditors ; young being one of the creditors , uses inhibition and apprizing against fleeming , and is thereupon publickly infeft ; after which william anderson makes payment to the other of the creditors , the said alexander young and crawford his spouse insists for mails and duties of the apprised lands , anderson excepts upon his prior infeftment from fleeming , the common author , upon the said disposition , crawford replys upon the back-bond , that the said infeftment is on trust to the behove of fleeming : anderson duplys that it is a qualified trust to the behove of anderson himself in so far as any debt was due to him , and next to the behove of fleemings creditors , and condescends and instructs that he has made payment to several of these creditors , so that payment made by him bona fide must give him right to the trust pro tanto , and any inhibition or infeftment at youngs instance , was only against fleeming , and not against anderson , against whom there was never any action . it was answered , that the trust being for payment of fleemings creditors , cannot be interpret at the option of anderson , which would be a most fraudulent conveyance to exclude the more timeous diligence of fleemings other creditors , but it must be understood to pay the creditors legitimo modo , and not to make voluntar payment to these who had done no diligence ▪ and prefer them to these who had done diligence ; and albeit the inhibition and publick infeftment upon the apprizing be only against fleeming , yet anderson who was intrusted for fleeming , might and ought to have known the same by searching of the registers , appointed for publication of rights , and if he had neglected the same sibi imputet , for he being trusty for fleeming , could no more prefer fleemings creditors , then fleeming himself could do . the lords repelled the defense and duply , and found that voluntary payment made by anderson to fleemings creditors , after the inhibition or publick infeftment of other creditors , did not give him any right by his infeftment in trust , to exclude the more timeous diligence of the other creditors . street contra masson and lord tarphichen , iuly . . iames masson being debitor to the lord tarphichen does infeft his son an infant in his lands , publickly holden of the superior , and being a merchant , there was a correspondence betwixt him and mr. street , and other london merchants , whereupon he gave them bond , mentioning to be for former accompts , and provisions betwixt them , and thereupon followed an infeftment of annualrent . the lord tarphichen obtains decreet of reduction of the infeftment granted to the son , as being posterior to his debt , and granted by a father in defraud thereof : the london merchants raise also a declarator , that the infeftment granted by masson to his son ( then an infant ) ought to be affected with their debt , in the same condition as it were yet standing in the fathers person , or otherwise ought to be declared void as a fraudulent deed by the father in favours of his son , the father being then in tract of correspondence and traffick with these merchants , who bona fide continued the same , seing the father continued in possession of the lands , and built thereupon , and gave an infeftment of annualrent to the merchants , after the infeftment granted to his son , and likewise raised a poinding of the ground upon his infeftment of annualrent , whereupon he now insists . it was alleadged for the son and the lord tarphichen ▪ that the sons right being publick , and registrat in the publick registers , prior to the pursuers annualrent for the bonds whereupon the same proceeds , it doth fully exclude them from poinding of that ground . the merchants repeat their declarator by way of reply : to which it was answered , that whatsoever may be said of latent and clandestine rights betwixt fathers and children , and other confident persons , yet there is no law hindering a father to give an publick infeftment to his son , unlesse it be in prejudice of the creditors , to whom he was due sums at that time , which being a valide pubick right , no deed or pretence of fraud of the father thereafter can prejudge the son in his right , who being an infant was not capable to be partaker of fraud , neither can fraud be presumed as to creditors , who are but to contract thereafter , nor can a publick right registrat , and a publick seising , which all the world may , and all concerned ought to know , be esteemed a contrivance or fradulent right , and as to any commerce betwixt these merchants and the father , which began before the sons right , no respect can be had thereto , because the pursuers bonds are lately for a sum of money , and must import that the former debts by traffick were past from or discharged , and if need beis offered to prove that they were actually discharged . dly , the making up a debt to be prior to take away the sons infeftment , can only be probably by writ or oath of party , and not by witnesses , who cannot prove above . pounds . dly , though the cause of the bond were proven to be a correspondence and traffick begun before the sons infeftment , it is no ways relevant against any provisions gotten after the infeftment , for such can have effect but from their own date , and the effect is cut off as to what is posterior to this publick infeftment , seing the merchants did either follow massons faith upon their hazards , or else they should have had a procurator here , and taken advice how they might have been secured of massons estate by the law of scotland , who would have taken notice by the registers , that masson was denuded by a publick infeftment , which nothing he could do thereafter could prejudge , and would have certified the merchants thereof , and their failing therein is on their own peril , and albeit their payment and acting bona fide is sometimes good , though made to these who had not a valide , but a colourable right by these who knew not a better right , and might have been compelled to pay upon the colourable right , yet other deeds , though bona fide done , are upon the peril of the actor . to which it was answered , that by the common law and custom of this nation all fraudulent deeds are reduceable , and there can be no deed more fraudulent then this of a father to his own infant son , for whom he is legal administrator , and must accept the right he gives himself , and so colludes with himself to make a snare to intrap merchants and strangers in the midst of a course of trade with them , which is a common ground of law , whether the debt be prior or posterior to the sons infeftment , and albeit the merchants bond be posterior , yet seing it bears to be for ware , witnesses according to the ordinar custom , are receiveable for astructing the writ , to prove what the ware was , and when received , which will not be prejudged , though there had been a discharge of the ware granted the time of the bond , unlesse there had been a real and true payment of the money , for there being nothing then payed , this bond ceases not to have a true anterior cause , as if it had been granted on death-bed upon a discharge then given , it would be valide , as being upon an anterior cause before the sicknesse , neither is there any difference to be made of the parts of the traffick after the sons infeftment , but seing the correspondence began before , and is once continued as a constant correspondence and traffick , it must all be drawn back to its beginning , as if the merchants on both sides had contracted when they began their correspondence , that they should faithfully pay what either of them received from other , till the correspondence was given up . the lords found that this bond , although posterior to the sons infeftment , not bearing borrowed money , but merchant ware , that the quantity , and times of furnishing thereof might be proven by witnesses , and albeit there had been a discharge of the ware , yet so much thereof as was furnished before the sons infeftment would affect the same , but found that the sons infeftment being publick and registrat , no posterior deed of the fathers , by continuing traffick or correspondence , nor no pretence of fraud of his , could annul or burden the said infeftment , for any debt contracted posterior thereto . executors of mr. thomas ridpeth contra iohn hume , eodem die . in a competition betwixt the executors creditors of mr. thomas ridpeth , about a sum due to mr. thomas by bond , and by him assigned to iohn hume , who not having intimat it in mr. thomas his lifetime , did thereafter get payment of a part of the same , and a bond of corroboration for the rest thereafter , toredlie for a debt due to him by mr. thomas ridpeth , confirms himself executor creditor to mr. thomas , and alleadges that he ought to be preferred , because the assignation made to iohn hume was an uncompleat right , wanting intimation , so that the sum remained in bonis of mr. thomas ridpeth , and that he had followed the only legal way to affect it , by confirming himself executor creditor to mr. thomas , and albeit the assigney may force any other executor to pay to him , yet not an executor creditor , who is executor to his own behove for satisfying his debt . it was answered , that the assignation , though not intimat , being a special assignation , albeit it cannot have execution by horning , yet it is the undoubted ground of an action , even after the defuncts death , against the debitor , and no executor creditor can have right thereto . which the lords found relevant , and preferred the assigney . duke hamiltoun contra weir of balckwood , iuly . . the duke of hamiltoun insisted in his declarator against the laird of blackwood , for declaring that he had right to his superiority by the act of parliament . bearing , that whosoever should get right from the king to the superiority of the annexed kirk lands , the same should be valide as to these vassals who had confirmed , or should consent . and alleadged that major ballantine , to whom blackwood is heir , had taken an infeftment of the estate of blackwood , from the marquess of hamiltoun , upon blackwoods resignation , and upon the resignation of two apprizers , in anno ● . the marquesse then having a right to the superiority , granted by the king in anno . which albeit it was not then valide , because the lands were then annexed to the crown , by the act of parliament . and were not dissolved ; yet the major having taken infeftment as to his part , his heirs could not quarrel the superiority , though the king might ; and now the king and parliament by the act . having declared such rights of superiority valide as to these vassals who had , or should consent , and the duke having gotten a new right of the superiority since the act , the former consent is valide ; likeas william lowry blackwoods father and tutor gave a bond , that so soon as the duke should obtain the superiority , the son should become vassal . the defender alleadged that his fathers bond was only effectual against his father , but not against himself , and his father never being feear of the estate , his bond could never be a consent of the vassal , neither can the consent of any tutor , or lawful administrator be sufficient to give such a consent , which is not an act of office or administration ; and as to the infeftment taken by major ballantine , first , the simple taking of infeftmen from a lord of erection by the vassals of kirk-lands , cannot import their passing from the king , and the benefit of the act of annexation , so that they may not return to the king thereafter , neither can it be such a consent as it is meant in this act of parliament , otherwise the king and the leidges should both losse the benefit of the annexation , seing most part of the vassals have continued to take infeftment of the lords of erection , through ignorance or inadvertance , finding their infeftments flowing from the lords of erection , and in respect that the lords of erection have still right to the feu-duties till they be redeemed , which being a common error that they may safely so do till the redemption , and yet may still take infeftment from the king when they please , it were a very evil consequence , if thereupon they should not only lose the benefit to be vassals to the king , but by disclamation lose the property . dly , as to this case it cannot be presumed , but major ballantine is in the same case with other vassals of kirk-lands , and also in this much better case , that he is in a manifest and palpable error , in so far as the disposition that he takes from the apprizers , bears expresly that the apprizers are informed that the marquess of hamiltoun was superior , and their procuratory bears warrand , either to resign in the kings hands , or the marquess hands , or in the hands of any other lawful superior , and blackwoods procuratory in the contract of marriage , bears warrand to resign in the hands of the king , the marquess of hamiltoun , or the earl of roxburgh , who had right of erection before the marquess or any other lawful superior , so that by resigning in the marquess hand , it is evident that the resigner and the major believed that the marquess was superior , whereas he was not , any right he then had being absolutely null by the act of annexation , . and the king was the only superior ; yea , by the taking of that infeftment he incurred disclamation , unless it were excused by his error , but the consent requisit here must be such , as the party knowing the king was his superior , did choose to interject another superior , and become his perpetual vassal . it was answered for the pursuer , that the acceptance of the infeftment as it is now stated can be no error , because it is evidenced by the apprizers rights now produced , that they hold of the king , and were infeft by him , and yet the major took the infeftment upon their resignation in the dukes hands ; likeas the rights produced relate to the right of annexation , which being a most publick law , and recent at that time , cannot be thought but to be known to any at that time , & ignorantia juris neminem excusat . it was answered , that the error was the greater that the apprizers infeftment was holden of the king , seing in their disposition and procuratory they mention they were informed the marquess was superior , and therefore the procuratory is to resign in the hands of the king , the marquess or any other lawful superior , and the other procuratory is in the like terms , so that the accepter of the writs did not intend , nor do any new or free deed in favours of the marquess , but did only that deed that they supposed was necessar , and so did not by this infeftment make the marquess superior , as that his right should be valide by their consent , but did take the right from the marquess , as being superior before they took it , which was an palpable error , so prejudicial to them that it might infer disclamation , if it were not excusable upon error , and if it had been intended that the major minded to make the marquess his superior , where he was not , there is no doubt but it would have been exprest in the right it self , being so great a deference to the marquess , and would not have been past over in common form ; neither can it be thought that this was procured by the marquess upon accompt and favouring the major , the infeftment being granted by the lady marquess , as her sons commissioner , he being then in england , and having no great influence then being the time of the troubles of the countrey . it was answered , that the other vassals of that barony did voluntarly accept the marquess as their superior , and gave bonds for that purpose , which are produced , and it is most like that blackwood hath given bond , which hath been lost or given up to him upon taking this infeftment , which is an implement thereof . the lords did not see that the single taking of the infeftment from a lord of the erection , did import his consent to become vassal thereby for ever , or that he might not thereafter return to the king , neither did they find such a consent as is meant in the act of parliament , but considering the whole circumstances of this case , and especially the fathers clear bond , who procured and settled the controverted right of this estate for his son , then an infant , they found there was no error , but a choise of the marquess to be superior in place of the king , and therefore declared . lesly contra cunningham , eodem die . lesly having arrested certain sums for payment of a tack-duty due to him . it was alleadged for the party , in whose hands arrestment was made , that the arrestment could not reach any further , then for the tack-duty arrested , which was due the time of the arrestment , but not for any term following the arrestment , because arrestment being a legal execution , can no more proceed upon a debt , before the term that the debt be due then apprizing ; and further alleadged , that they had made payment of the subsequent terms to the debitor , which they were in bona fide to do , knowing no law nor custom to the contrare . the lords repelled the defense , and found the arrestment to be valide for that terms duty that was then running , and found that the arrestment was rather like to an inhibition then an apprizing , which gave present payment . scot of hartwood-mires contra november . . scot of hartwood-mires gave in a bill of suspension of a decreet in foro● which the ordinar reported to the lords ; the reason of suspension was , that he being conveened as representing his father , to pay the debt in question , for which his father was cautioner , he offered to prove payment , denying alwise the passive titles , and having proven the most part payed , by discharges granted to the principal debitor , he was decerned for the rest , and now offers to renunce to be heir to his father , conform to his protestation in the first act. it was answered , that the defense of payment does never suffer the proponer to deny the passive titles , or put the pursuer to a necessity to prove them , by the constant custom , founded upon good reason , because the proponing upon any positive right of the defuncts is a behaviour as heir , and in the act of ●i●is contestation , a term is only assigned to the defender to prove payment ▪ and the protestation in effect is rejected , because there is no term therein assigned to the pursuer to prove the passive titles , in case the defender failed to prove payment , neither could there be any by our custom . the lords refused the suspension , and found that the offer to prove payment , liberated the pursuer from proving the passive titles . lady towy contra captain barclay , november . . the lady towy having pursued improbation of a bond of an bundreth thousand pounds , alleadged granted by the umquhile laird of towy to captain barclay , and of a disposition of the estate of towy , alleadged made by the tutor of towy , the day after the laird of towy died , at the barns of towy , which tutor fell heir-male to the laird , who had only one daughter ; the foresaid bond and disposition being produced judicially before by captain barclay , though not in this process , he refused now to produce the same , but suffered certification to be granted against it . the question having arisen whether any further process could be in the improbation , in respect that the principal writs were not produced , but copies bearing the tenor , date , and witnes●es insert . the lords the last session did examine captain barclay , and steel one of the witnesses insert , and certain others , and steel confessing the forgery , and captain barclay denying the same after he was confronted with steel , and denying the having of the principal writs , the lords sent captain barclay and steel to the tolbooth of edinburgh , to be keeped there till the event of the plea , or further order , and did thereafter permit steel to come out upon sufficient caution for a great sum , and the other witnesses inserted being sumonned , and not compearing . the lords granted caption against them , and gave commission to certain persons to search for them , and now iohn rosse the other vvitness in the disposition , and alexander ferguson who filled up the date , and witnesses , both in the disposition and bond , and subscribed witness to the bond , and insert himself as vvitness in the disposition , but subscribed not as vvitness in the disposition , being brought to the bar. it was alleadged for captain barclay , that the saids vvitnesses could not be examined , first , because there was now no process depending , in respect that the improbation which was only civilly intented , was determined by the decreet of certification , which now is extracted , and albeit the lords did before examine captain barclay and steel , yet the process was then depending , and the certification not extracted . dly , it was alleadged that rosse and fergusson were not habile vvitnesses , having appeared most partial upon the pursuers part , having stayed a long time with her in her house , et prodiderunt testimonia , in so far as not only they had declared what they would depone , but that they had set the samine under their hands , and that by their said subscription they acknowledged themselves accessory to the forgery , and so by their confession they are socij criminis , and being culpable of so great a crime are infamous , and their testimonies can make no faith against any but themselves . it was answered for the pursuer , that improbations ( even civilly intented ) are not totally determined by the certification , which is of its own nature but an interlocutor sentence , and if the pursuer should notwithstanding thereof find out , and produce the principal writ , he might proceed to the improving thereof , it being very well consistent , that it might be holden , and repute false by the certification , and might also be proven to be false ; and though the pursuer could not produce the writ , yet the process is not wholly determined by the certification , but it may be justly desired that all evidences of the forgery that were possible , without production of the writ , might be taken to remain in retentis , in case the principal should after be found , for there might be clandestine assignations of the writs made by barclay , and intimat at the pursuers dwelling-house , or forged and antedated intimations made up , so that the certification would not be effectual against the assigney's , and though parties should not insist , the kings advocat who is also pursuer of the process might insist , that the vvitnesses might be examined , for detecting of the forgery ; and there could be no case more favourable then this , wherein captain barclay had judicially produced the vvrits , and now wilfully refuses to produce the same , and if forgers shall escape , and be in no more hazard , but suffer certification , though they have burnt , or wilfully keep up the vvrits , it will be an open door to encourage all forgerers , neither have the vvitnesses betrayed their testimonies , albeit being examined by the lord fivy , a nobleman in the countrey , one of them did subscribe , who had just ground to think that it was no voluntar deed , but that the lord fivy might have sufficient authority for that effect ; but whatever objections were against vvitnesses , they are ever received in improbations , and the lords at advising of the cause do consider what their testimonies may work , at which time only it will be proper to object . the lords notwithstanding these alleadgeances , examined the vvitnesses . rosse acknowledged that he being servant to captain barclay , he called him up to subscribe vvitness to a vvrit , but told him not about what it was , nor did not let him hear nor see what was written therein , but rolled it up , and presented only to him the white paper , near about the end of the vvrit , and desired him to subscribe vvitness , and he saying that he could not be vvitness , because he saw no body subscribe , the captain answered , that that was nothing to him , and that he should stand betwixt him and all danger , and that he would be loath to bid him do any thing would do him harm , whereupon he did subscribe as vvitness , and saw not the tutor subscribe at all , nor saw not his name put to the vvrit at that time , and that this was not at the barns of towy , the time of the lairds death , as the date of the paper bears , but at achready five weeks thereafter . ferguson deponed that captain barclay having been his tutor , he induced him to vvrite over the bond of . pounds , whereof he had formerly gotten a draught from iames midletoun notar , wherein debitor , creditor , sums and date were blank ▪ and that he filled up umquh●●● towy debitor , and the captain creditor , and the sum . pound , and put in a date as if it had been before the lairds sickness , albeit it was truly after his death , and that the captain shew him towies subscription in a letter , and caused him feinz●e it to the bond as near as he could ; and likewise depones that the captains brother was the other vvitness , but that he saw not what the deponent had done , nor knew not thereof ; he also deponed that he filled up the date , and insert the vvitnesses in the disposition of the estate of towy , at the captains desire , and made the date to be at the barns of towy , at the lairds death , albeit it was done at achready , about a month or twenty days thereafter , and that there was no subscription put thereto at that time , but that the captain told him that he would get the tutor to put his hand to it thereafter , and that the deponent refused to subscribe vvitness , because the tutors name was not thereat . upon these testimonies both these vvitnesses and steel , who was formerly out upon bail , were put in prison . henderson contra anderson , november . . hewat having made a general disposition of his whole goods and geir to anderson , and thereafter having disponed to henderson , his creditor henderson pursues anderson for reduction of his disposition , as being fraudulent in prejudice of creditors , without any equivalent cause onerous , contrare to the act of parliament , . against fraudulent dispositions . the defender , a●leadged that the reason was not relevant upon the said act , because hewat and anderson were not conjunct persons , and because his disposition buir an onerous cause , viz. for sums due to himself , and for . merks , and other sums , for which he was cautioner for hewat , and gave in a condescendence of the particular sums , and offered not only to depone thereupon himself , but to astruct the same by the oath of hewats creditors to whom he payed . the pursuer answered , that albeit ordinarly dispositions amongst persons not conjunct , bearing causes onerous were sufficient , yet this disposition being manifestly fraudulent , in that it is omnium bonorum , which the receiver thereof could not but know to be in prejudice of the disponers other creditors , to whom there was nothing left , and so is particeps fraudis ; and likewise the sum of . merks , which is the only cause specially exprest , being instructed to be false by discharges of the most part of that sum by the creditor to hewat himself , the remainder of the cause being general , ought to be instructed not by andersons oath , but by sufficient probation , at least the verity of the debt by hewats oath , and the payment thereof by the oaths of hewats creditors , to whom it was payed , and that it wa . payed by anderson before the disposition , at least that he was bound for payment thereof before the disposition . the defender answered , that dispositions of moveables are valide without any vvrit , especially before any diligegence done by the pursuer , and if these who acquire moveables were obliged to instruct the cause otherwise then by their own oaths , all commerce would cease , and the defender having taken a disposition in vvrit , can be in no worse case then if he had none . the lords having considered the defenders condescendence , found that what wa● due to the defender himself by hewat before the disposition , should be sufficiently instructed by anderson's own oath ; but as to what was due to him , or payed by him for h●wat , after the disposition , and before any right or diligence of hendersons , that the same should also be allowed , being instructed by howats oath , and these who received the sums , and that accordingly anderson should accompt for the whole goods he meddled with , and pay the superplus thereof to henderson the pursuer , over and above the saids articles . the creditors of cowper and balmerino contra my lady cowper . november . . the deceast lord cowper having made a disposition of his whole estate in fee to his lady , and thereby having excluded the lord balmerino , his appearand heir therein , balmerino being unwillingly to enter heir to cowper , before he knew whether the disposition would stand or not , moves some of cowpers creditors , and some of his own creditors having charged him to enter heir to cowper , to insist in the reduction of the disposition , made to the lady , as being done by cowper , in lecto agritudinis . it was alleadged for the lady no process , at the creditors of cowpers instance : first , because they insist only upon personal bonds , granted by the lord cowper , and have no real right to the land , and so cannot reduce a real right , but upon a real right : so till they have apprized the lands they have no interest . dly , albeit cowpers creditors might reduce the disposition , as betwixt conjunct persons , without an onerous cause , yet not upon the reason , ex lecto , because that is a priviledge particularly competent to heirs , but not to creditors , as they are creditors , unless by real diligences , they state themselves in place of the heir , and so make use of his right and priviledge . it was answered for the pursuers , that in that they were creditors , they had sufficient interest to crave it to be declared , that the estate of cowper should be affected with apprizings upon cowpers debts due to them , notwithstanding this disposition , which is all the effect of this reduction ; and as they may , without any real right , reduce , or declare as aforesaid upon the act of parliament . against fraudulent dispositions , so they may declare that any disposition done on death-bed , as it could not prejudge the heir , so it cannot prejudge the creditors of the defunct , or his appearand heir , but that they may affect the said estate , with their legal diligences . it was answered for the defender , that she repeats the former defense . and further alleadges , that she is content to take off the interest of cowpers own creditors , and to declare that the disposition shall be burdened with their debts : but adhered to her defense against balmerino's creditors , who , though they produce an apprizing , yet it is posterior to the summons , and their personal debts can be no sufficient title , nor is there any produced . it was answered for cowpers creditors , that the declarator in their favours was no way sufficient , nor would not give them a real right , nor prevent the diligence of other creditors . dly , if they had a good interest to reduce , and thereupon to apprize , no offer could take away that interest but payment . the lords found the creditors had sufficient interest upon their personal bonds to insist upon the reduction , ex capite lecti ; but they found that a real security given to cowpers creditors , equivalent to an apprizing , and infeftment was sufficient to exclude their interest . monteith of car●ubber contra margaret boyd . december . umquhil mr. robert boyd of kips , dying infeft in the lands of kips , and gourmyre , and in a miln , and having left two daughters heirs portioners , the younger having married monteith of carrubber being dead , her son and heir raised a brief of division against the eldest sister , whereupon division was made in this manner , viz. the rent of the miln being rated at a . pound the chalder , being more than the rent of the land , the whole land was set on the one part , and the miln on the other , and because the mansion-house belonged to the eldest sister , the land was adjudged to her , and the miln adjudged to the other , and the superplus of the rent of the miln allowed , in satisfaction of the youngest sisters interest in the house . carrubber raises reduction of this division , upon these reasons : first , that the lands ought to have been divided in two shares , and the house likewise , having convenient rooms and lodgings for both families , in which they have dwelt these . years , and not to have adjudged the miln only to him , stating the victual , being only meal , at a . pound the chalder , far above the just value ; and stating the miln-rent equivalent to the land-rent , which is subject to many more contingencies ▪ and expenses in upholding the miln , and difficulties in recovering the rent ; and in the common estimation , is not accounted equivalent to land rent ; so that he is enormly les'd , and offered a merks to margaret the eldest daughter , to exchange shares , albeit the rent of either share be but about three chalders of victual . the defender answered , that the reasons of reduction were no way relevant , because all divisions ought to proceed , as is most convenient for either party , and where least is left undivided● ▪ and the division it self cannot have a precise rule , but is in arbitrio of the inquest , who were knowing gentlemen of the neighbourhead , and upon oath ; so that unless the lesion were ultra dimidium justi valoris , it cannot be recalled , seing an inquest has the irrecoverable determination of life and death , which is of far greater moment than this , and this division proceeded upon carrubbers own process , and the inquest was called by himself . and albeit it be true , that if the division could have been made , by giving both a share of the lands , and a share of the milns , if there had been more milns , it might have been more equal ; but here , if the land had been divided , the miln behoved to have remained for ever common , and so the division not be compleat . likeas , the miln lies at a distance from the land , and near to carrubbers own land , and is not a casual rent , arising from free multures , but has the whole barrony of torphichen astricted by infeftment ; and the defender is willing to give . merks for each chalder of the miln rent , which is the ordinary rate of land rent ; and the reason why there was no cavel , or lot , was because the eldest sister falling the mansion house by law , she behoved to have the land therewith . the lords sustained the reasons , and ordained a new commission for a new division ; here the lords would not consider the points severally , whether the mansion house ought to have been adjudged to the eldest sister , and a recompence to the second : or whether such a house , being no tower nor fortalice , but which would be comprehended as a pertinent of the land , gave no preference ; so that lots ought to have been cast upon the division : or whether the house could be divided , per contignaliones : or whether the miln , though it had been truly rated , could have been put to answer the whole land : or that the land behoved to be divided , and the miln remain common ; but only generally , the lords gave a new commission for a new division . weavers of pearth contra weavers at the bridge-end of pearth december . . the weavers of pearth having pursued the weavers at the bridge-end , upon the . act , par. . prohibiting trads-men in the suburbs of burghs , to exercise their trades , whereof mention is made , iuly . . the defenders were then assoilzied . now the pursuers further alleadge , whereas it was then represented , that that act had never taken effect , but was in desuetude . they now produce a decreet of the lords , at the instance of the weavers of edinburgh , against the weavers of the suburbs compearing , decerning them to desist , and cease from bringing any of their work within the liberties of edinburgh , and from coming within the same to receive work ; and that upon the same act of parliament which cleares , that the same is not in desuetude , and it is founded upon a most just , and necessar ground , viz. that trads-men within burgh pay stent for their trade , which were impossible for them to do , if the same trads-men were permitted in the suburbs , who might work cheaper then they , not being lyable to stent . the lords explained their former interlocutor , and declared , conform to the foresaid decreet of the town of edinburgh , viz. that weavers in suburbs might serve any in the landward , but might not come within the liberties of the burgh , for taking up the work of the burgesses , in prejudice of the free-men , who were free-men of the burgh . iohn iaffray contra alexander iaffray and doctor iaffray his son. eodem die . john iaffray , late provost of aberdeen , pursues a declarator of the escheat and liferent of alexander iaffray his brother . compearance is made for doctor iaffray , son to the rebel , who produced a prior gift , with general and special declarator , and alleadges no declarator at the pursuers instance , upon this posterior gift , because the right is fully established in his person , by the prior gift and declarators . the pursuer answered , first , that the doctors gift is simulat to the rebels behove , and so accresced to the pursuer , which appears from these evidences ; first , that the doctor is the rebels own son. dly , that it is retenta possessione , the doctor having suffered his father to possess for many years . dly , it was offered to be proven , per membra curiae of the exchequer , that the gift was purchased by the rebels means and moyen , and severally it was offered to be proven by the doctors , and his fathers oath conjunctim , that he had given a back-bond , declaring the gift to be to his fathers behove . it was answered for the doctor , to the first , that the grounds of simulation were no way relevant ; for albeit he was the rebels son , yet he had means of his own , and was not in his family ; and albeit he were not eager , to put his father out of possession of his house and lands : yet his continuance of possession is not relevant , unless it had been to his death , or for a longer time : but any delay that was , is because it is but of late , that the doctor hath obtained special declarator , till which , he was not in capacity to discontinue his fathers possession : neither can members of court be admitted to prove , that the father wared out the expence , and procured the gift , because the doctor , at the passing of the gift , gave a back-bond , that he being satisfied of the debts due to him , and the expences thereof , there should be place for the rebels creditors , and did make faith at the passing of the gift , that it was to his own behove , after which , no winesses can be admitted against him , nor any other presumptive probation , of the simulation of the gift . which the lords found relevant , and found also the pursuers reply upon the back-bond alleadged granted by the doctor to his father , relevant to be proven by the doctors oath only . sir iohn vrquhart supplicant . december . . sir iohn vrquhart gave in a supplication to the lords , bearing , that he being cited before the council , upon several alleadged riots , and fearing that he might be excluded from appearing in his own defense , by hornings against him ; therefore desired that the lords would grant suspension of all hornings against him , ad hunc effectum only to give him personam standi in judicio , but prejudice to the creditors of all other execution . which desire the lords granted as to all hornings he should condescend upon . pittrichie contra laird of geight . december . . maitland of pittrichie having obtained the gift of recognition from the king , of certain waird-lands , held by the laird of geight , of his majesty , pursues declarator of recognition upon geights alienation of the lands , wherein compearance was made for the purchasers thereof , who alleadged absolvitor , because the time of their alienation by the law , and custom in force for the time , such alienations without consent of the superiour were valide . the pursuer answered , that any law or custom that then was , is now annulled and rescinded , as from the beginning ▪ the defender answered , that no laws of whatsoever tenor , can be drawn back by invalidat deeds , done by the law and custom for the time , especially as to matters penal , such as recognitions , so that parties having acted bona fide , according to any thing they could know for a rule , cannot fall in the penalty and certification of recognition , which imports a contempt of the superiour , and cannot be inferred by any deed legal for the time . the pursuer answered , that the contempt is the same , when the vassal alie● nat● his fee , without the superiours consent ; and when such alienations being by law become void , and the superiours right of recognition revived , the vassal did not after that time crave the superiours confirmation as heir : so he laird of geight having never sought confirmation from the king since his restauration ; it is no less contempt , than if since the kings restauration he had alienat , especially seing the king refuses confirmation to none who demand it . it was answered for the purchasers , that the vassal being denuded in their favour , according to the law standing for the time , his fault cannot lose their right ; for though he should collude against them , yet that ought not to prejudge them , and there being no obliegment upon the vassal to seek a confirmation , to the behove of the purchasers , they cannot be prejudged , for not obtaining the same . the pursuer answered , that the purchasers might have craved the kings confirmation of their right , both for themselves , and in name of geight the immediat vassal , which geight neither would , nor could oppose . the lords repelled the defenses in respect of the reply , that no confirmation was craved , neither by the vassal nor purchasers , his sub-vassals , which they might have done if they had pleased , and therefore declared the lands to be recognosced . innes contra innes . ianuary . . innes having granted an assignation of an heretable bond of . merks , . merks thereof to robert innes his eldest son , and . merks thereof to william and ianet inness his younger children , and in case of roberts decease , providing his part amongst the rest equally ; ianes having died before robert , her heirs and roberts heirs compet for the sum , for robert died without children , and william as heir to robert , claimed the whole sum upon this ground , that ianet being substitute by the father to robert , without any mention of ianets heirs , ianet having died before robert , she had never right , and her substitution became absolutely void , and her heirs not being exprest , this substitution cannot extend to them , because , though ordinarly heirs are comprehended , though not exprest , qui acquirit sibi acquirit suis , yet here is no acquisition , but a voluntary substitution , whereby it may be rationally conjectured , the mind of the defunct was , that he would prefer ianet to roberts heirs of line , not being heirs of his body ; but not that he would prefer ianets heirs , which were a degree further from his own other bairns . and the case of substitutions in the roman law was urged , that if the substitute died before the institute , the substitutes heirs have never place . it was answered , that institutions and substitutions with us , do far differ from the roman substitutions , whereby if the institute succeed , the substitute has never place as heir to the institute , but the institutes heirs whatsomever , which failing , the institute is there interpret so , that if the institute never be heir , then the substitute has place , as heir of tailzie , and provision to the substitute ; so that here ianets heirs are heirs to robert , who had no heirs of his body , and do exclude william his brother : and though ianets heirs be not mentioned , yet they are understood and comprehended , because in tailzies and provisions , there uses never to be an institution or substitution of a single person , without the heirs of their body . and though there be some singular cases , in which heirs not being exprest , are not comprehended , this is none of them . it was further alleadged for william , that william and ianet being substitute joyntly , ianet deceasing before robert , her share accresces to him , jure accrescendi ex conjuncta substitutione . it was answered , that there is here only substitutio conjuncta verbis , but disjuncta rebus , for the sum is declared to belong to william and ianet equally , so that each of them has but right to a half . the lords preferred the heirs of ianet , and found that they had right as heirs of provision to robert , and that they ought to be served to him , and not to ianet , who had never right her self , having died before she was , or could be heir to robert. elizabeth and anna boids . contra iames boid of temple . ianuary . . james boid of temple in his contract of marriage , and in a bond of provision relative thereto , became oblieged to pay to the bairns of the marriage beside the heir the sum of . merks at their age of . years , reserving his own liferent . elizabeth and anna boids , the only bairnes of the marriage , now after their mothers death , and age of seventeen , do with concourse of their husbands , pursue their father to imploy the said sum of . merks to himself in liferent , and them in fee. the defender alleadged absolvitor , because the pursuers can have no interest in this provision , being expresly conceived in favours of the bairns of the marriage , beside the heir : itaest , the pursuers are the heirs appearand of the marriage , there being no sons , and will succeed to the estate by the contract , and so cannot demand the provision made to the other bairns , for if there had been a son of the marriage only , he could not have claimed this clause ; and the pursuers can be in no better case than he . it was answered , that in contracts of marriage , the meaning of the parties is chiefly to be respected , which has been , that in case there were an heir-male , or son of the marriage , this sum should belong to the remanent bairns , and therefore it is conceived under the name of heir in the singular number , and being introduced in favours of the daughters , it ought not to be interpret against them , but that they may renunce to be heirs , and be satisfied with this provision only ; otherwise they may be absolutely excluded , the fathers estate being apprized by iohn boid , whose legal is near to expire , and who makes use of the fathers name without his warrand . it was answered , that law allows not in any contract to make up new clauses , and seing the provision is express in favours of the bairns beside the heir , it can never quadrat to thir pursuers , who are the only heirs . the lords found the provision not to be extended to the pursuers , but because it was suggested , that the father did not propone it . they desired the ordinar to enquire , whether the pursuit was for the father , and by his warrand , that then they might consider , whether iohn boid the appryzer could have interest to propone that alleadgeance . ker of cavers , and scot of golden-berrie supplicants . eodem die . ker of cavers , and scot of golden-berrie being arbit●ators nominat by a submission , did by bill crave warrand from the lords to authorize them , to summond witnesses to compear , and depone before them in the cause in which they were arbiters . which the lords granted . iean ker contra downie . ianuary . . jean ker having set a house in edinburgh to downie for nine pound ten shillings sterling ; she obtains decreet against him therefore : he suspends on this reason , that within . hours after he took the house , he did by instrument give it over , which is the ordinar custom of burghs , where there is no writ , to quite the bargain within a short space , unless some offer interveen , medio tempore , by which the party is damnified . the charger answered , that this house having been taken but fourteen days before the term , there is neither law nor custom allowing either party to give over or resile , there being then no competent time to set again : for albeit houses sometimes are given over when they are taken , and quite before warning time , when the ordinar occasion of setting to others may occur ; yet that cannot be drawn to this case , and the instrument of over-giving , was only by downies wife , who shew no warrand . the suspender answered , that there was no difference , whether the house was taken before warning time , or after , seing the law gives locum penitentiae , or some small time , which must take place in either case . dly , albeit the charger had not been obliged to accept the over-giving , yet de facto , she has accepted it , because it is offered to be proven , that she set the house to another , and took earnest thereupon , which did import that she quite the first bargain , seing at once she could not set it to two . dly , albeit offer was made of the keys at the term , yet it is offered to be proven , that the house was not void , but that the former tennents goods remained therein . the lords repelled the first reason of suspension , upon the over-giving but found that member relevant , that the house being given over , the same was set to another , and earnest taken therupon ; but found that point , that the tennents goods , who possessed formerly , were not removed , not relevant , in respect of the custom in edinburgh , not to remove peremptorly at the term. mr. laurence charters contra parochioners of curry . ianuary . . mr. laurence charters , as executor confirmed to mr. iohn charters minister of currie his father pursues the parochioners for . pound for the melioration of the manse of currie , conform to the act of parliament , . which is drawn back to the rescinded act of parliament , . it was alleadged by the parochioners , absolvitor . first , because the meliorations of the manse were long before any of these acts , which do only relate to meliorations to be made thereafter ; and for any thing done before adificium solo cedit , and it must be presumed to be done by the minister animo donandi , there being no law when he did it , by which he could expect satisfaction . dly , several of the defenders are singular successors , and so are not lyable for reparations done before they were heretors . the pursuer answered , that albeit these reparations were done before the year . yet there being subsequent acts of parliament , obliging the heretors to make the manses worth . pounds , if these former reparations had not been made , the heretors of this paroch would have been necessitate to make up the same , and so in quantum sunt lucrati tenentur . dly , the saids acts of parliament contained two points , one is , that whereas the intrant minister payed to his predecessor . merks for the manse , and his executors were to receive the same from his successor ; the saids acts ordained the heretors to free the successor , as to which the present heretors can have no pretence , and as to the alleadgeance , that they are singular successors , the acts oblige heretors , without distinction , whether they are singular successors , or not . the lords found the parochioners only lyable for the . merks payed by the minister at his entry ▪ and found , that at the time of the reparation , the parochioners not being lyable , were not then lucrati , and are not lyable by the subsequent acts , which extend not ad praeterita , neither did they find the singular successors lyable , but that the heretors for the time were only obliged . scot contra murray . eodem die . in a process betwixt scot and murray ; a husband having granted a tack of his wifes liferent lands , and the wife having promised after his death , never to quarrel that tack ; yet thereafter insisting against the tennents , who alleadged upon the said promise , it was answered , that it being but a verbal promise , not in writ , it can be no more effectual , than if it had been a verbal tack , which is only effectual for a year , and thereafter , the setter may resile . it was answered , that here there is a tack by the husband for several years , and the wifes promise never to quarrel it , needs no solemnity in writ , but is valid , as pactum de non petendo , or de non repugnando . the lords found the wifes promise effectual , and that she might not resile during the years of the tack . lady lucia hamiltoun contra the lands of dunlap and pitcon , and the creditors of hay of montcastle . ianuary . . lady lucia hamiltoun being assigned to a bond of . merks , grantted by george hay of montcastle , to the earl of abercorn , she inhibits the said george , and denunces , and apprizes his lands of birklands and others , and thereupon pursues reduction against dunlap , and pitcon , and certain other creditors , in favours of whom , there is a disposition granted of the saids lands by george hay , and ins●sts on this reason , that albeit the disposition bear , to be for sums of money , and causes onerous ; yet by a clause therein , it is expresly declared , that it is granted to dunlap and pitcon , for satisfying of the debts due to them : and to the effect they may sell the lands for payment , and satisfaction of the said iohn hay , his other creditors under-written , for the sums after-specified : after which words , there was left a large blank , which by ocular inspection , is now filled up with another hand , than he who wrote the body of the disposition : and which article so filled up , is in the same case , as if it had been set upon the margent and subscribed , or as if it had been in a several writ , wanting witnesses , and cannot be holden to be of the same date of the disposition , but must be presumed to have been filled up after the pursuers inhibition , and after she had denunced and apprized the lands ; and therefore as to these creditors so filled up , their rights which are granted by dunlap and pit●on , the intrusted persons , long after the pursuers inhibition and appryzing , the same ought to be reduced . it was alleadged for the creditors defenders , that the reason , as it is qualified , is no ways relevant against them . first , because the disposition granted to dunlap and pitcon , being of the whole lands , and they infest accordingly , being long before the pursuers inhibition and appryzing ; and the said disposition and infeftment , being to the creditors behove , albeit their subaltern rights from dunlap and pitcon , be posterior , nihil referi : and whereas it is alleadged , that their names and sums are filled up in the blank , after the inhibition and appryzing with another hand , and so must be presumed of another date . it is answered , that the subscription at the foot and body of a writ , did necessarly infer , that the whole blanks were then filled up , unless the contrary be proven , neither uses the names of fillers up of blanks to be exprest , and it cannot be presumed , that any man in prudence would subscribe a blank writ , till the blanks were first filled up . dly , though it could be proven that the blank was filled up after the inhibition , yet the general terms of the clause being insert , a principio , with the same hand , viz. for satisfaction of the said george his creditors , it is sufficient , although the particulars were insert after . dly , it is offered to be proven , if need beis by the oaths of dunlap . pitcon , and the witnesses insert , that before the subscribing of this disposition , thir creditors filled up , were particularly comm●ned on to be filled up , and no other . the pursuer answered , that there being here pregnant evidences of fraud , by interposing intrusted persons , and preferring of some creditors to others by the debitor , who was insolvent , and had no more estate , in that case the filling up of the blanks must be presumed fraudulent and posterior , unless the creditors prove it was truly● filled up before the inhibition , otherwise it opens a door to all insolvent persons in this manner , to exclude any of their creditors from payment , and to have such clauses ambulatory at their pleasure : neither doth the general part of the clause suffice , unless it had been in favours of the disponers creditors generally , or indefinitly , which would have comprehended the pursuer ; but it being only of the creditors under-written , if these were not under-written till after the inhibition they , have no place : and as for any verbal communing or agreement , it cannot be effectual , until it be redacted into write , which was not till after the inhibition . the lords found that the blank being filled up with another hand , and so substantial a clause , and the writer not being exprest at the foot , that it was to be presumed , to be posterior to the inhibition , unless the creditors prove by the witnesses insert , or others above exception , that it was truly insert before the inhibition and apprizing , wherein they would not admit the oaths of the persons intrusted , and they had no respect to the alleadgeance , that it was communed and agreed upon before the subscription . doctor balfour and his spouse contra mr. william wood. ianuary . . umquhil mr. iames wood having been tutor to his wifes daughter , she being now married to doctor balfour , they pursue mr. william wood , as representing his father for a tutor accompt ; in which accompt , the auditors reported these points . . the pursuer insisted for the whole sums , bearing annualrent , whereof no part belongs to the wife , as relict , she being excluded by the act of parliament . the defender answered , that he opponed the testament , and confirmation unreduced , whereby there is a tripartite division of the whole sums , and the relict has one third , which belonged to the defunct tutor , her husband , jure mariti . the lords repelled this alleadgeance , and found that the errour of the confirmation was corrigible without reduction . . the defender alleadged that he was not comptable for the annualrent of one of the sums acclaimed , because by the bond , it was provided in liferent to the relict , whereto his father had right , jure mariti . it was answered , that the tutor had given several discharges of that annualrent as tutor , and not as husband , and so had homologat and acknowledged the pupils right to the annualrent . it was answered , that the discharge was so granted by errour and mistake , & falsa designatio non obest ubi constat dere and offered to prove by the bond , that the wife was liferenter . which the lords found relevant . andrew hadden contra nicol campbel . ianuary . . andrew hadden having charged nicol campbel upon a bond subscribed by him as cautioner for samuel meikle gold-smith . nicol campbel suspends , and raises reduction on this ground , that he being an illiterate man , and could not subscribe , he was induced to be cautioner for samuel meikle , but on these express terms , that he should only be cautioner for . merks , and accordingly he gave order to the two nottars , to subscribe for him as cautioner for . merks . the said andrew hadden the creditor , being then present at the warrand and subscription , and yet a far greater sum is filled up in the bond , which he offers to prove by the two nottars , the witnesses insert , and the communers . the charger answered , that he oppones his bond , being a clear liquid bond in writ , which cannot be taken away by witnesses . the suspender answered , that albeit regularly , writ cannot be taken away by witnesses , yet fraud or circumvention , or the terms of agreement , and communing in contracts , are always probable by the oaths of the communers , writer , and the witnesses insert . the lords would not receive the reason to be proven in the ordinar way by witnesses , but ex officio , ordained the communers , nottars , and witnesses to be examined , that they might consider the clearness , and pregnancy of their testimonies , whether this writ was read to the suspender , when he gave warrand to subscribe , and what was read for the sum , and on what terms he gave warrand to subscribe . mr. iohn mcqueen contra marquess of douglass , and mr. peter pearson . january . . mr. iohn mcqueen having been minister at carmichael , and trainsported to edinburgh , he continued to serve the cure at carmichael , till march and pursues the marquess for the half years stipend . compearance is made for mr. peter pearson his successor , who alleadged that he is presented in ianuary to the whole stipend . and thereby has right ; and mcqueen was transported before ianuary . and though he continued to preach till february or march , yet being transported , he was no more minister , and did not preach till the compleat sowing , or whitsonday , which is the legal term for half a years stipend of transported ministers . it was answered for mr. mcqueen , that pearson not being admitted minister till august . can have no right to a term anterior , and the patrons presentation can give him no right , because the patron has now no power of the vaccand stipend . the lords preferred mcqueen , seing nothing was alleadged for the collector of the vaccand stipends , who , it is like , might have excluded both , for at whitsonday , neither of them was in officio , or beneficio , relict of mr. patrick she●ls contra parochioners of west-calder . eodem die . mr. patrick sh●ils having been minister of west-calder , he was suspended by the synod and bishop , for not coming to the presbyteries and synods , and the act suspended him ; ab officio , and bear , that if he did not come to the next synod , they would proceed to depose him , yet he was not deposed , but continued three years in the possession of the manse , gleib , and stipend , his wife now pursues for an ann , the next intrant being admitted within three moneths after mr. patricks death , alleadges she could have no ann , because mr. patrick was suspended ab officio & benefici● , and produces an act of the synod bearing so much , and the relict produces that same act extracted , and subscribed by umquhil mr. george hay , who was clerk at the time , and bears only suspension , ab officio , and the intrants act is extracted by the present subsequent clerk , and bears ab officio & beneficio . the relict alleadged , that the act produced by her , was the only act intimate to mr. patrick , and which is subscribed by the clerk , who was clerk to the principal act it self , and accordingly mr. patrick was in bona fide , and did possesse three years after . the lords adhered to that act , and found the ann due , and ordained the other act to be keeped in retentis , that it might be compared with the register , that he might be cen●ured if he extracted it wrong . lady towie contra captain barclay . eodem die . the lady towie insisted in the improbation of a disposition , alleadged granted by the tutor of towie , whose estate was provided to heirs-male , but he had disponed his estate to the pursuer his daughter , upon which , no infeftment had followed in his life : and also for improving of a bond of a hundreth and three thousand pound , alleadged granted by the deceast laird of towie , both granted in favours of captain william barclay . in which improbation , because the writs were not produced , a decreet of certification , holding them as false and feinzied , and declaring them to make no faith , was pronounced and extracted : and thereafter the pursuer having desired , that alexander steil , and iohn ross , witnesses insert in the disposition , and alexander ferguson writer , and witnesses in the disposition , and witnesse in the bond , should be examined , lest by their death , the means of improbation should fail , in case the writs were hereafter produced . whereupon the lords examined the witnesses , steil and r●ss by their depositions , acknowledged , that they being servants to captain barclay , he had induced them to subscribe as witnesses to a writ , which he had folded up , and did not read to them ; but they saw that there was no name , as a subscription thereto , at that time , but the captain told them , that he would get the tutor of towies subscription thereto , and that he had thereafter dealt with them to bide by the writ , as a true writ ; and that albeit it bear date at the barns of towie , the day after the laird died , yet that it was truly subscribed at the captains house of achridie , about a month thereafter , ferguson did depone , that he had written over the said disposition , and that it was subscribed at achridie about a moneth after towie died , and that he had insert himself witness therein , but had not subscribed as witness ; and that he was insert , and subscribing witnesse in the said bond , to which he forged , and set to the hand of the deceast laird of tow●e , at the desire of the captain , whose pupil he had been . the other witness in the bond was richard barclay , who appeared not : upon the foresaid disposition captain barclay had made resignation before the lords of exchequer , and the same had been produced by him , and made use of in processes before the lords , as appeared by the subscribed minute , by mr. alexander birnie his advocat , acknowledging the getting up of that disposition from the clerk , which he had produced for captain barclays interest , and which he had delivered to the captain immediatly , as he had received the same from the clerk. captain barclay's goodson arnage , was also examined , who depo●ed that he had received a message from the captain , to deal with the witnesses to come over to edinburgh , and bide by the writs . captain barclay himself was also examined upon oath , and confronted with the witnesses , but he denyed all the foresaid points in their testimonies , and deponed that the said william steil being his servant , had run away from him , and carryed away the said disposition and bond , and had gone over to the lady towie , and conspired with her for his destruction . the tutor also being examined upon oath , acknowledged he had subscribed several dispositions of the estate of towie , in favours of captain barclay , and that some of them were subscribed , no witnesses being present , but that he had bidden the captain put in what witnesses he pleased ; and that whereas before he had declared , that he had subscribed no disposition , yet he had done it , being in the power of the lady towies friends , who told him that captain barclay being next heir-male of towie , had a mind to take his life , which he found afterward not to be true , and was willing to do any deed for conveying of the estate to the captain , seing he had no heirs-male of his own . the clerks of exchequer , advocats , and several writers and their servants , were also examined upon oath , anent the having of the said disposition and bond ; the clerks of exchequer deponed that the disposition was produced in exchequer , and resignation made thereon ; and the r●st deponed , that they had seen the disposition and bond , and were consulted thereupon by the captain , but had given them back to him . upon the whole matter , the pursuer craved , that now , seing there was sufficient probation of the forgery of the writs , and that the lords had produced before them a just double of the disposition , presented to the exchequer , that therefore the lords would proceed to improve the same , and to declare that the same were false , and forged by the captain , and that they would remit him to the justice general , according to the ordinary custom in improbations . it was answered for the defender , that the lords could not proceed to improve the writs , because the writs were not produced , and never any writ in scotland was improven , but when the principal writ it self was produced ; neither can it otherwise be , for improbation before the lords , being ad effectum civilem , to take away the writ , and right therein , the same behoved alwayes to proceed upon a particular and individual writ , which therefore behoved to be produced before the lords and witnesses ; for suppose it could be prove that a write of such a date , and such a tenor , was fabricat , and forged at such a time and place , which might in●er a crime against the forgers ; yet it could not take away all right by such a writ , because there might be several writs of the same date ; and the making up and improving of a false writ of such a date , could not take away the true writ of the same date , unless the principal writ it self had been produced , that the judges and witnesses might know that that was the very writ in question . and therefore our custom hath settled and fixed upon this remeid , by allowing a certification , that if the writs called for to be improven , were not produced , they should be holden and repute as false and feinzied , and should make no faith : but did not find them proven to be forged and feinzied : but only to make no faith , as if they had been fenzied , which in this process has been done , and the lords have neither law nor custom to do any further . dly , albeit the witnesses have by their own testimonies declared themselves to be forgers of false writs , their testimonies cannot prove that captain barclay was either authour , or accessory to their forgery ▪ because they are socij criminis , and have by their testimony made themselves infamous , as falsers ; and so there is no faith to be given to their testimonies , against any other but themselves : besides , they have given partial counsel to the pursuer , and have betrayed their testimonies , by voluntarly coming to them , and declaring what they would depone ; and therefore the lords can neither improve the writs , nor remit captain barclay to the justice , as a falser . the pursuer answered , that albeit the ordinar course in improbations , be only certification , when the writs are not produced : yet there is nothing to hinder the lords to use extraordinary remeids , in extraordinary cases ; and there can be no case more extraordinar than this , where there is an evident tract of forgery , for taking away a considerable estate of sixscore chalders of victual improven by the very witnesses insert , and that the writs have not been produced . it is the defenders own fault , who knowing them to be false , wilfully abstracts the same , and it will be a very great incouragement to forgery , if the forger knew that all his hazard will be , to suffer certification , if his forgery take not ; neither were ever witnesses in improbation of writs , exclude in the civil process , as being socij criminis : but if they acknowledge the forgery thereof , they were improved , though they themselves were accessory to the forgery , otherwise if witnesses can be induced to subscribe as witnesses to a forged subscription , there were no possibility of remeid , seing it cannot be thought , they would suffer any other to be present , or that the forger himself would consess . the lords refused to proceed to improve the writs , not being produced , or to remit the parties to the justice : but they did declare , that by the processes , they found steil , ross , and ferguson , the witnesses to be guilty of forgery , by their own confession ; and that they found captain barclay had made use of the vvrits , acknowledged to have been forged , and therefore ordained these of their number , that were upon the privy council , to represent the case to the council , that they might cognos●e what furder censure they saw just to be inflicted : and it was the privat opinion of most of the lords , that at least the witnesses , and barclay himself should be banished : but they found it not proper for them to express their opinion ; or prelimit the council . but withal , the lords found the probation adduced , sufficient to declare captain barclay and the vvitnesses infamous , and did declare them such accordingly . iames watson contra agnes simpson . february . . agnes simpson being infeft by umquhil alexander stewart her husband in liferent , in an annualrent of . pound yearly out of the lands of la●ellethem , she in anno . obtained a decreet of poinding of the ground , and the tennents having suspended on multiply poinding calling her , and james watson and others , wherein she is preferred in anno . to her annualrent , for all years bygone , and in time coming . in which 〈◊〉 of multiple poinding , watson was absent . watson making use of the names of the tennents , does raise a second suspension , anno . wherein he is called on the one part , and the said agnes simpson on the other part , which now coming to be discust ; it was alleadged for the said iames watson , that the decreet of multiple poinding against him , being in absence , he ought now to be heard upon his right , which is a publick infeftment , long before the liferenters base infeftment , or before it was cled with possession . it was answered , that by the express act of parliament , anent double poindings , it is declared , that where parties are called , and compear not , but intent reduction of the decreet , that they shall never be heard against the decreet , or what the obtainer thereof has uplifted , unles● they shew a sufficient cause of their absence ; and that the obtainer of the decreet shall only be obliged to answer the other party in the second instance , according to the right , which is then competent in his pe●son , and the obtainer of the decreet shall have undoubted right to the mails and duties , ay and while he be warned at the instance of the other party , and better right shown , as is clear by the act of parliament , . cap. . so that watson having yet raised no reduction of the decreet of multiple poinding , preferring simpson , but only a second suspension in name of the tennents , who suspended before , the said agnes simpson her decreet standing , and her right standing thereby , cannot be taken away , till in a reduction watson produce a better right . it was answered , that watson does not contend for the years lifted by simpson , or for any years prior to his second suspension , albeit he does produce an unquestionable right , that would exclude her from all ; yet in regard of the act of parliament , he is sati●fied she be preferred , for all years , till he in his second suspension , produce his rights ; but alleadges that he needs not raise reduction , because the act of parliament does not require the same , but any complaint or process is thereby sufficient ; neither does the ordinar course of law require a reduction of a decreet in absence , but a suspension alone is sufficient ; and if he be put to a reduction , his unquestionable right will be excluded for all years bygone , and ay and while he raise his reduction , and produce his right . it was answered , that albeit the ordinar course requires not reduction of decreets in absence , yet the act of parliament requires the same , because in the narrative , it expresly mentions , that the party absent in the double poinding , uses to raise reduction : and in the statutory part , it mentions , that the other parties complaint shall be heard in the second instance , which is always understood to be reduction or declarator , and in a second suspension . the lords found that reduction was necessary to take away a decreet of multiple poinding in absence , and that a second suspension was not sufficient , and therefore preferred simpson , and found the letters orderly proceeded , but prejudice to watson to raise his reduction for the duties in time coming . alexander jack contra collonel borthwick . february . . alexander jack alleadging that he subscribed a blank to have been filled up in a bond of cautionry , in a suspension , which was found among the writs of umquhil george jack , as a blank paper , who lived several years thereafter ; and after his decease , his relict finding the same , caused fill up in the blank , a bond of ten thousand pound , as being borrowed from thomas boid of pinkill , and is now in the person of collonel b●r●hwick , who having charged thereupon , the said alexander jack suspended , and raised reduction on this reason , that he had never any medling , or borrowing with the said thomas boyd ; but that the said bond was a blank paper , found among the writs of the said deceast george jack , and neither he nor the said alexander were ever worth so great a sum : and now seing collonel borthwich did not insist in his charge ; jack was necessitate to proceed to take away the bond , and craved that the lords would examine witnesses , ex officio , upon the truth of this reason . the lords ordained the writer , and the witnesses to be first examined , ex officio , and thereafter other vvitnesses , as the lords should see cause . earl of kinghorn contra the laird of pittarro . february . . the earl of kinghorn pursues a declarator of the nullity of a bond of . merks granted by his father ▪ and now standing in the name of pi●tarro , as creditor on this ground , that he never borrowed the sum from pittarro , nor delivered this bond to him ; but having trusted umquhil alexander keith , as his ordinar agent and writer , with this bond , blank in the sum and date , to have borrowed money upon the same , took never effect , but remained so blank in the hands of alexander keith , for many years , till his death , and thereafter in his relicts hands , till her death , and after her death the blank was filled up , by john bane her brother , and the date made in anno . whereas the bond mentions alber as cautioner , who died before the year . whereupon pittarro's oath , and the oath of alexander keith , friend to the said umquhil , alexander being taken , pittarro acknowledged that the bond was blank , and filled up by the said john bane , as the reason bears , and that he received the same by advice of this alexander keith , in satisfaction of . merks , and . pound due to pittarro , by mr. roger mowat , and lifted from him by umquhil alexander keith , by pittarro's warrand , for which he obtained decreet against alexander keith his executrix before the commissars , now produced in process , and proceeding upon a missive letter of umquhil alexander keiths , acknowledging the debt . it was answered for pittarro , that by the bond produced , it was clear that his name was in the bond , ab initio , as creditor , and was not filled up , ex post facto , neither was there any wrong in filling up this sum , because he having already proven , that alexander keith had uplifted the like sum of his from mr. roger mowat , and that my lord kinghorn being debitor to keith in considerable sums of money , payed to his creditors , conform to discharges produced in process , alexander keith might lawfully have filled up the sum in the bond , for repayment of pittarro , whose money he had uplifted , and any friend of his had done my lord kinghorn no wrong , seing thereby he would be exonered of the like sum to keith , and was content yet to compt and reckon with kinghorn , for alexander keith , and to restrict his sum , to what shall be found due by the umquhil earl of kinghorn to keith . likeas , this alexander keith by his oath in process depones that he heard that umquhil alexander keith , on his death-bed declared , that kinghorn was debitor to him in nine thousand merks : and therefore he thought it no fault to fill up the blank in this bond. it was answered for kinghorn , that albeit umquhil alexander keith was trusted by the umquhil earl of kinghorn with this blank bond , that trust being meerly personal to him . it was a most unwarrantable trinkating for any other after his death , to fill up the bond , especially seing neither by testament , nor any other writ umquhil alexander keith , who only was intrusted , and who lived many years after , and was no ways surprised with death , did signifie that the money was borrowed from pittarro , or taken from any of his creditors and applyed to kinghorn's use , and the hear-say of this alexander keith is of no moment : and if any thing be due by kinghorn to keith , the pursuer represents his father as heir , and shall answer pittarro , or any executor or creditor of keiths , whenever he shall be pursued : but cannot be insisted against , upon this bond , so unwarrantably filled up . the lords found the declarator relevant and proven , and therefore decerned the said bond null , reserving action against kinghorn , upon any debt due by kinghorn to keith as accords . tutor of colzean contra the nearest of kin of the pupil . february . . the tutor of colzean having cited the nearest of kin of his pupil , to hear and see it found and declared , that the pupils lands were set too high , and could not be keeped at these rates , and that the tennents were in arreir before his tutory in great sums , which if he should exact , would cast the land waste ; and that it was for the good of the pupil , to set the land at lower rates , which it might be able to pay , and to quite so much of the arreirs , as the tennents might pay the rest , and be able to continue and possess . there being no compearance , the lords gave commission to certain gentlemen in the countrey to examine the rate of the land , and the conditions of the tennents , who have reported several of the rooms to be too high set , and what ought to be given down , and what behoved to be quite to each tennent , that was deep in arreir , to inable him to pay the rest , and l●bour the ground . the lords approved the report , with these qualifications , first , that the tutor should discharge nothing simply , but only till the pupillarity were past , that himself and curators might then proceed as they saw cause , and that the tutor , before any abatement of the rooms , should cause make intimation at the mercat cross of the jurisdiction , and at the paroch church that such lands were to be set , at such a place , such a day , and whoever bade most for them , being sufficient tennents , should have them , and that at the said day , if a better rate were not gotten , the tutor might then , or thereafter , set at the rates contained in the commission . daniel cathcart contra mccorquodail and mr. iames mirk . february . . mccorquodail having married the daughter of mr. james mirk , he , and the barron of mccorquodail his brother , are obliged to pay yearly . merks to the wife , after the husbands death : and mr. james mirk is obliged to pay to mccorquodail . merks of tocher : mccorquodail being debitor to daniel cathcart writer in edinburgh in . merks . he arrests the tocher in mirks hands , and pursues to make forthcoming , and for instructing , produces the foresaid contract of marriage . it was alleadged for mirk that he is not obliged to pay , or make furthcoming the tocher , unless his daughter were secured in her jointer , for the tocher and jointer being the mutual causes of the contract ; neither mccorquodail nor any deriving right from him by assignation , or arrestment , can demand the tocher till they secure the jointer , and that exception is relevant , both against mccorquodail and his assignies . it was answered for the pursuer , that if it had been provided by the contract , that the tocher should have been employed for the wifes security , the defense had been relevant , or there might be some pretence , if there were an obligement upon the husband to secure the wife in land or annualrent for . merks . but the contracters having agreed for no security for the future , but having agreed upon a personal security , viz. of the husband and his brother , the husbands part of the contract is performed , and the husband is no ways creditor till his death . which the lords found relevant , and in respect of the conception of the contract as aforesaid , repelled the defense , and decerned . iohn scot contra alexander cheisly and david thomson , february . . iohn scot pursues a declarator of circumvention against alexander cheisly , and david thomson , bearing that alexander cheisly having a processe against the magistrats of glasgow , for alleadged hindering the executing of a decreet , and imprisoning him , and being in an evil condition in his means , he proposed to the said iohn scot his good-brother , that he must make use of his name as assigney to that process , lest his creditors might affect any thing that might be obtained thereby , and that iohn scot should give a back-bond , declaring that his name was put in the assignation upon trust. in stead of which back-bond , he caused draw up a bond , bearing that forsomuch as alexander cheisly had assigned iohn scot to a process against the town of glasgow therefore , and for other good causes and considerations . iohn scot obliges him to pay to a blank person . merks , in which bond alex●nder cheisly , filled up david thomsons name , and which bond was obtained by alexander cheisly , by gross circumvention upon the absolute trust the said iohn scot reposed upon the said alexander , for clearing whereof he condescends on these points , viz. that the said iohn scot was goodbrother to the said alexander cheisly , had been his prentice , and the said alexander was his curator , and the said iohn scot is known to be a simple person , and the said alexander cheisly to be a subtile person , ready to take advantage : likeas it is evident that he did take advantage of the said iohn scot , about that same time , pretending that he was more able to act iohn scots affairs then himself , he procured assignation from iohn scot to bonds of twenty eight thousand merks , and put in the assignation● clause of absolute warrandice , albeit by a back-bond of the same date , it be clear that the assignation was only granted for love and favour , and for agenting the matter , and that the one half should belong to cheisly for his pains , and the other to scot , but prejudice to scots obligements in the assignation , which could be no other but the warrandice , whereby albeit cheisly knew that a part of the debts were payed to scots father , and a part was insolvent , and that scot who was assigney by his mother as executrix , had no more himself but warrandice from her deed , yet by the absolute warrandice he intended to be sure of the one half of the sums , although it s known that hardly the half will be recovered , whereby cheisly should have all , and scot who freely granted the assignation should have nothing , but less than nothing , by being obliged to make up the half , though so much were not recovered of the whole . dly , all the pretence of the plea against glasgow could never amount to . merks , yet the bond is conceived for absolute payment of that sum , albeit it was a meer plea , depending many years , and debated without success . dly , cheisly himself did ever keep the process and assignation , and did transact the plea , or a great part thereof with the magistrats of glasgow , and got payment . in this pursuit there was no compearance for cheisly , but it was alleadged for david thomson , that whatever had past betwixt cheisly and scot , no ground of circumvention betwixt them could be relevant to take away his right , who seeing the blank bond filled up with his name by cheisly , before it was brought to him , and given to him for debt due to him by cheisly , and he being nowayes particeps fraudis , cheislies fraud or circumvention cannot prejudge him , for albeit extortion vi majori be vitium reale , that follows the right to all singular successors , yet fraud is not , and reaches none but participes fraudis , both by the act of parliament . and by the civil law. l. it was answered for scot , that albeit it be true that an assigney for an o●erous cause cannot be prejudged by the oath of his cedent , and consequently by no circumvention probable by his oath ; yet in personal rights an assigney is in no better case then the cedent , nisi quoad modum probandi , but what is relevant against the cedent , and competent to be proven , either by writ or witnesses is competent against the assigney , so that the circumvention against cheisly being inferred by pregnant evidences and witnesses , and not by his oath , it must be effectual against thomson , whose name being filled up by cheisly , is in effect cheislies assigney , for so all blank bonds are commonly found by the lords to have the same effect with an assignation . dly , assignies without an onerous cause , even as to the oath of the cedent , or any other consideration are in no better case nor the cedent ; but here there is no onerous cause appears , for which cheisly transmits this right to thomson , for the bond ●ears not that for sums of money due by cheisly to thomson , or any other cause onerous on thomsons part , that scot should be obliged at cheislies desire to pay thomson , but only that because cheisly had assigned a process to scot , therefore scot becomes obliged to pay to thomson . dly , as there is no cause onerous instructed on thomsons part , so his own oath de calumnia being taken , renders the matter most suspitious , by which he acknowledges he got the bond from cheisly , and that cheisly was not then his debitor for so great a sum as in the bond , but that by payments made to him , and for him , thereafter he became his debitor in an equivalent sum , but depones that he hath nothing to instruct the debt , nor no note thereof in his compt book , though he be an exact merchant and factor , so that there is no evidence or adminicle of an onerous cause instructed . and lastly , albeit parties getting blank bonds bearing borrowed money from the blank person , whosoevers name is filled up , the bond then bears the sums borrowed from him whose name is filled up , and cannot be taken away but by his writ or his oath , but this bond bears only a process assigned by cheisly , and no borrowed money , or other cause by thomson , and thomson living in the same town with scot whom he knew , and is commonly known to be a simple person , and cheisly a subdolous , he ought before accepting of the bond to have acquainted scot of the filling up of his name , and if he had any thing to say , and cannot now pretend that he acted bona fide , but either must be in dolo or in lata culpa , quae dolo aequiparatur . the lords found that having considered the tenor of the bond , and thomsons oath , thomson was in the same condition as to the relevancy and probation of the reasons of circumvention against cheisly , and therefore found the libel relevant against them both to annul the bond , the apprizings , and infeftment , and all that had followed thereupon . naper contra gordon of grange , feb. . . iohn naper , as representing his father , did pursue william gordon of grange , as representing hugh his father , for payment of . merks , due by the said umquhile hugh his bond , and upon the said williams renuncing to be heir , obtaind adjudication of the lands of grange and others , in so far as might belong to the said umquhile hugh his debitor , his heirs ; and thereupon did pursue the tennents for mails and duties . in which action , it was alleadged for william gordon , now of grange , that he stands infeft by disposition from the said umquhile hugh gordon of grange , his father , for onerous causes , and sums of money undertaken , and payed for his father , which was found relevant ; and to evite the same the said iohn naper raised reduction of grange's right granted by his father , ex capite inhibitionis , raised against his father upon the said bond , before the disposition made to this grange ; which inhibition being produced this day fourtnight , it was alleadged for grange that the samine was null , because the executions buir not a copy to have been lest at the mercat cross , at the publication of the inhibition , which the lords found relevant , and now the pursuer insisted on this reason , that the disposition though it buir onerous causes , yet being after the contracting of his debt , by a father to a son , the narrative bearing the cause thereof , is not probative against a third party , but the same must yet be instructed . which the lords sustained , and ordained grange to produce the instructions thereof . william lowry contra sir iohn drummond , feb. . . umquhile sir robert drummond of meidup , having disponed the lands of scotstoun to sir iohn drummond of burnbank ; mr. iohn drummond writer in edinburgh , his grand nevoy , intending to reduce that disposition as on death-bed , grants a bond to william lowry of . merks , who thereupon having charged the said mr. iohn to enter heir in special to the lands of scotstoun , to the said sir robert his grand uncle , apprizes from him all the right of the lands , that might be competent to him , if he were entered heir , and thereupon raises reduction of sir iohn his right , as being granted by sir robert on death-bed , in prejudice of his nearest heirs , in whose place the pursuer now is by the apprizing . it was alleadged for the defender , no process upon any charge to enter heir against mr. iohn drummond , because he is not the nearest appearand heir , but has an elder brother living . the pursuer answered , that the said elder brother had gone out of the countrey . years agoe , and was commonly holden and repute dead ; likeas he produced a missive of one crei●htoun his commerad in the war abroad , bearing the circumstances of his sickness , death and burial , dated iuly . . it was answered , that semel vivus semper presumitur vivus nis● contrarium probetur , and what was alleadged could be no probation , but some probabilities of death . the pursuer answered , that the brokard is but presumptio juris , and not presumptio juris & de jure , and therefore only trans●ert onus probandi , which probation may be valid without witnesses , by such adminicles as the lords shall find sufficient , which are here sufficiently alleadged , viz. long absence , common fame , and a missive letter . the lords found that eighteen years absence , and being holden and repute dead , was sufficient probation to take off the presumption of life , unless a stronger probation for the parties being on life were showen , then the naked presumption thereof . lauchlen lesly contra guthry . feb. . . lauchlen lesly having fraughted a ship belonging to bailly guthry in dundee , to carry a loadning of wheat and oats from athol to leith , the skipper did put in by the way at dundee , and there the ship received a crush by another ship , whereby the salt-water entered amongst the victual , and thereupon the owners and skipper caused disloaden the victual , and put it up in lofts , and bailly guthry the next day after the crush , gave notice to robert lesly in dundee , lauchlens correspondent , and who made the bargain for him , to make it known to lauchlen what had befallen the ship and loadning , who within two dayes after came to dundee and was required to receive the victual , which he refused , and by the probation adduced in this cause it was found that it was the skippers fault , that he had put in to dundee , and so he and the owners were found lyable for the damnage and interest of the merchants , and that the merchants should be only obliged to take back that part of the victual that was unspoiled , and the owners should be lyable for the price of the whole as it would have given at leith , if the skipper had keeped his course , deducing the price of the sufficient victual as it now gives , and a commission being granted to certain persons in dundee to visit the victual , and to see what condition it was in , they reported that . bolls of it was sufficient mercatable wheat ▪ and that the oats was damnisied in shilling the boll , and as to the rest , two reported that it would yet be brisket for ships , or houshold servants , and two reported that it was spoiled , but spake nothing further . the question arose to the lords upon the commission at the advising thereof , whether the owners and skipper should be lyable for the damnage that was done before the advertisement given to the merchant , or for the damnage that ensued thereafter , because the victual being laid together , without separating the wet from the dry , had het and spoiled thereafter , and if it had been separat at first , the damnage would have been very litle , and so the question was , whether the owners and skipper were obliged to have separat the wet from the dry , and so to have offered it to the merchant , or if the offer in general to the merchant to receive the victual was sufficient , though he did not desire them to separat the wet from the dry , or that they did not offer satisfaction , or security for the damnage of what was wet . the lords found that seing the damnage had fallen after , and through the occasion of the skippers delay , he and the owners were obliged to separat the wet from the dry , and to have used diligence to prevent future damnage , wherein having failzied , they found them lyable for the whole damnage , both before and after the offer ; the next question arose was , whether the skipper and owners were obliged to take the spoiled victual , and pay the price thereof , as if it had been sufficient , or if the merchant was obliged to take it , and the owners to make up the damnage . the lords found that seing the victual remained yet in specie , and was not wholly corrupted , but by the report appeared to be useful for ship brisket , and seing the property thereof still remained in the merchant , , and the owners were only lyable for damnage ; they ordained the merchants to receive the wet victual , and gave commission to the same persons to report what it was worse then the price it would have given at leith , if the voyage had held . the countesse of cassills contra the earl of cassills , february . . . by contract of marriage betwixt the deceast earl of cassills and his lady , he is obliged to infeft her in certain lands , with absolute warrandice , and obliges him that the lands did pay then , and several years before . merks of yearly rent , beside kanes and customs , and over and above teinds and feu-duties , and if it shall please the lady within six moneths after the earls death , rather to choise six thousand merks of free rent , then to retain the possession of the land , and to give a tack to his heirs and successors of the liferent-lands : then and in that case he obliges his heirs and successors to pay her . merks yearly . therefore the countesse has made it in her option , and offers to take , and pursues the earl her son to pay yearly the said sum of six thousand merks of free rent ; who alleadged , that albeit that clause be mentioned to be free rent , yet he must have allowance of cess , maintainance , and other publick burdens , because by free rent can only be understood , free of teinds and feu-duties , in respect that this being a tack-duty for the liferent-lands , the lady thereby can be no further free , then if she enjoyed the whole lands , which the earl is only obliged to make worth . merks of yearly rent , over and above teind and feu-duty ; but neither does it bear generally of free rent , much less of publick burdens , and therefore the subsequent clause for the tack-duty , albeit it bear free rent , yet it can only be understood to be free of teind and feu-duty , and not to be free of publick burden , which is further cleared by the act of parliament . ordaining all liferenters to hear proportional burden for any annualrent , or tack-duty belonging to them in liferent , unlesse they were expresly freed of maintainance . it was answered for the countess , that she oppones the clause of her contract , bearing free rent , without ●●nitation , and contracts of marriage are to be extended in favours of women , and as to the act . the same is repealed , and not revived again . the lords found that by the contract of marriage , the countesse was no● free of cesse and maintainance , which were the only points at in●●●●cutor ; but if any debate arose concerning the ordinar● taxation , or the outrikes , or allowance to militia horse , the lords would hear the parties thereanent , and accordingly the next day found the clause did free my lady of the ordinar taxation , militia , and so much of the cesse as the tennents of the lands payed to my lord. murray of achtertire contra sir iohn drummond , eodem die . the deceast earl of tulli●airn having wodset the lands of logy-almond , to william murray of ●chtertire , by a contract of wodset in february . by which the earl assigns . achtertire to the mails and duties of the lands , due for the cropt . at whitsunday or martimess , or any other term , and obliges him to deliver to him the keyes of the house , and to enter him in the possession at whitsunday . the earl having sold the lands to sir iohn drummond , whose entry was to be at whitsunday . and having used an order of redemption in the earls name , because the reversion did not extend to the earls assignies , and having obtained declarator , decerning achtertire to denude himself of the lands , who in obedience of the decreet grants a renunciation , reserving to himself the mails and duties for the cropt and year . achtertire insists for the duties of the cropt . which are payable at martimess . the way of payment of the rent of those lands , and many others being , that the tennent enters at whitsunday , and payes his rent at martimess thereafter for the whole year ; and if he remove at the next whitsunday , he payes no rent at that term , but leaves his corns sowen by him upon the ground , which he shears after his removal . whereupon it was alleadged by sir iohn drummond , that this way of payment being aforehand duty , whereby the tennent payes at martimess before he sowes the cropt , for the cropt of the year of god subsequent to the martimess , that therefore sir iohn entering at whitsunday . and having right to the duties due for the cropt and year . he has right to the duties due at martimess . because that duty albeit not payable in the year . yet is payable for the cropt . seing the tennent if he were removing at whitsunday . would for the payment made at martimess . carry free with him without any payment , the whole corns of the cropt . so that if sir iohn should enter to the void possession of the land at whitsunday . he should have no benefit of the cropt . but only of the cropt . it was answered for achtertire , that he has the only right to the rent payable at martimess . and sir iohn can have no right thereto , because his entry being but at whitsunday . he can have no interest in the cropt then sown , and standing on the ground , unto which no buyer did ever pretend , but the seller if he be in natural possession , takes always with him his own growing cropt , even after the buyers enters into possession , and so do all outgoing tennents , and so did achtertire at his entry , which being at whitsunday . he lifted the duties due at martimess thereafter , but lifted not the martimess duty of the cropt . payable before his wodset , and therefore now he must lift the rent due at martimess . or otherwise he wants a years annualrent ; and if sir iohn drummond should lift a years rent due at martimess . and an other years rent due at martimess . he should have two full years rent of the land within half a year of his entry , which was at whitsunday . and which can never be understood , except it had been clearly so expressed by the parties , neither is there here any further forehand duty , then what ordinarly tennents paying silver rent , and not inlayed or rentalled victual entering at whitsunday do , for they pay the one half of there rent at martimess thereafter , and the next half at the whitsunday following that martimess , and for his years rent they must have a years cropt both of grass and corn , and all the difference here , is that the rent due for the possession from whitsunday . to whitsunday . is payable together at martimess . in the middle of the year , whereas if it had been according to the ordinar course of silver rent , being payable half at martimess . and half at whitsunday . sir iohn drummond who entered but at the whitsunday . could have no right to the rent even payable at whitsunday . so neither can he claim it , when it is payable jointly at martimess . the lords found that achtertire had right to the rent payable at martimess . and that sir iohn drummond had right to no part thereof . ierdan of apilgirth contra iohnstoun of lockerby , feb. . . apilgirth having apprized lockerbies estate , and pursuing on the apprizing . lockerby alleadged that the apprizing was satisfied , at least he offered presently what was defective in this accompt ; lockerby alleadged upon a wodset right , whereof an order was used , whereupon the question arose , and was reported by the auditor , whether after order used for redemption of a proper wodset , the sums consigned , being immediatly taken up by the redeemer , and the wodsetter remaining four , or five years in possession thereafter , and declarator of redemption being obtained upon production of the sums consigned , with the annualrent from the consignation , whether the wodsetter had right to the mails and duties , and might refuse his annualrent , or if he behoved to accept of his annualrent , and compt for the mails and duties . it was alleadged for the wodsetter , that the consignation was but simulat , and the money remained not in the consignators hand , so that he did justly retain the possession , and so was not comptable for the duties . the lords found the wodsetter comptable for the duties , seing he had no objection against the legality or verity of the order , so that it was his fault that he keeped not the day of consignation , and received his money conform to the premonition ; and that the user of the order did no wrong to take up the money out of the consignators hand , seing consignations are upon peril of he con●igner , he making the same forthcoming at the time of declarator , with annualrent since the consignation . george graham contra the laird of stainbires ▪ feb. , . george graham merchant in edinburgh , pursues the laird of stinbires for a merchant compt , taken off partly by his umquhile father before his decease , and partly by his factors and servants thereafter . it was alleadged as to the defuncts part of the accompt , the samine was not pursued within . years of the off-taking , and therefore it is only probable by writ , or oath of party . the pursuer answered , that he was ordinar merchant to the defunct for many years , and that this was a current accompt to the defunct and his heir , the defuncts funerals having been taken off at his death , and the other subsequent furniture to the heir always since , so that there is not three years betwixt that part of the accompt that is for the funerals , and the last of the current accompt given off to the defunct , and therefore it remains a current accompt as to both . dly . there is not three● year betwixt that part of the accompt furnished to the defunct , and the summons raised against his heir , deducing the year and day in which the ●eir could not be pursued which is intra annum deliberandi . the defender answered , that the currency of an accompt was never extended to a defunct and his heir , but only to one person to exclude the prescription of probation by witnesses , neither in this short prescription , is minority , or any other incapacity to be deduced , and the pursuer ought to have raised his summonds intra annum deliberandi , though he could not have obtained decreet , the lords sustained the compt , both against the defunct and heir , as an current accompt to be proven by witnesses for the whole . doctor hay contra marjory iameson , iune . . doctor hay as heir to his father , who was distressed as cautioner for con of artrachy , pursues a reduction and improbation of all rights of the lands of artrachy , and others proceeding from con , in favours of iohn stuart advocat , william neilson , mr. iohn alexander , and marjory iameson his relick , or andrew alexander brother to mr. iohn , wherein there was produced an apprizing against con , at the instance of george stuart● : likewise a liferent-seising of helen kinaird , relick of con , with a liferent-tack to her of the lands contained in the seising , and also of other lands , and another tack of two nineteen years of the same lands . there is also ▪ produced a disposition of the apprized lands , by george stuart to william neilson , and because william neilson failzied in payment of four thousand merks of the price , george apprized the lands again from william neilson , and upon all these rights there is publick infeftments ; there is also a second apprizing , at the instance of andrew alexander , long after george stuarts apprizing from neilson , but no infeftment thereon ; and there is produced a disposition by george stuart as returning to the right by the second apprizing , made to mr. iohn alexander advocat , and by him to marjory iameson his spouse , and publick infeftments on these ▪ and there is a decreet of cerification extracted contra non producta . and now the doctor insists on this reason of reduction , that george stuarts first apprizing against con the common debitor was satis●ied , by intromission within the legal , and so is extinct , and all the subsequent rights depending thereon fall therewith in consequence . it was alleadged for the defenders , that george stuart having in his person the apprizing , and finding helen kinaird ( cons relick ) in possession of a great part of the lands by liferent infeftment , and a liferent and two ninteen years tacks , which would have excluded him ; he purchased right and assignation thereto from the relick , and continued her possession thereby , and did ascrive his possession to the liferenters right , and not to the apprizing , so that his intromission being by another , and more valide title , could not be ascrived to the apprizing to extinguish it . the pursuer answered , that the defense ought to be repelled , because he had obtained certification against the defenders of all rights not produced , and albeit the liferenters seising be produced yet the warrand thereof ( the charter or precept ) was not produced , so that it is now declared as false and feinzied , and the seising being only the assertion of a nottar without a warrand , is no title to which the intromission can be ascrived , and therefore it must be ascrived wholly to the apprizing . the defenders answered , first , that albeit the charter be now improven for not production , yet it being a true evident , and now produced , the effect of the certification cannot be drawen back , to make george stuart countable , who possessed bona fide cum titul● , which though now improven , yet the effect of the improbation can only be a sententia , lite contestata aut ●●ta ▪ before all which the liferenter was dead , and the intromission ended unless the charter being produced , had been by witnesses , or otherwayes proven to be false . dly , albeit certification be obtained against george stuart and marjory iameson ; yet the certification is not against andrew alexander , from whom marjory hath purchased right after the certification , and produced the appryzing at andrews instance against neilson , and alleadges , that albeit the certification could take away george stuarts right , in so far as concerns marjory iameson , or her authors , yet that being no annulling of their right , by being transmitted in favours of the pursuer , but only as being void , through want of the necessary evidents , it cannot impede andrew alexander , against whom no certification is obtained , to defend george stuart his authors right , and to ascribe george his possession to the liferent , infeftment , whereof he now produces the charter . the pursuer answered , that he was not obliged to take notice of andrew alexander● right , because it was incompleat , no infeftment following thereon : and because it was null , being deduced against neilson , after neilson was denuded by the appryzing led against him by george stuart , and infeftment thereon , so that the pursuer having prevailed against george stuarts right , which is the only valide right , and did exclude andrew alexander by the rule vinco vincentem , &c. and if this were otherwise sustained , no improbation could be effectual , unless all the invalid and imperfect rights were particularly improven , which cannot be known , and was never done . dly , certification being extracted against george stuart himself , all subaltern rights flowing from him , fall in consequence , and so andrew alexanders right , which is but incompleat and latent . the defender answered , that albeit andrew alexander was not called , or certification taken against him , as a party necessar , yet before conclusion of the cause , he has a good interest to produce his appryzing , and to alleadge that the certification against george stuart his author , who neglected to produce the liferenters charter , could not prejudge him , as deriving right from george stuart , as a singular successor ; much less could the neglect or collusion of marjorie iameson prejudge any other but her self : and therefore craved , that if the lords would sustain the certification of the liferent charter against marjorie iameson , that it should be without prejudice to andrew alexander , as to his right of the said liferent , or to george stuarts right of the liferent in so far as the same is derived to andrew alexander . the lords adhered to the certification in so far as concerned marjory iameson , reserving andrew alexanders right and his authors , in so far as concerned andrew alexander as accords . this cause being again called the . of iune , the defenders ascribed their possession to the liferent , and two nineteen years tacks , against which there was no certification . the pursuer answered , first , that the liferenter having bruiked by a liferent infeftment , and having ascribed her possession to it , it being improven , she could not ascribe her possession to the tacks , quia ex pluribus titulis ejusdem rei nemo fit dominus . dly , george stuart the appryzer having both the appryzing and these liferent rights in his person , and not having declared his mind , by what title he possessed , his possession must be attribute titulo nobilioti , to the apprizing , and his intromission imputed thereto , & duriori ●orti , as the lords use ordinarly to do in ●dium of appryzings , if the appryzer adhere to the expyring of the legal : but if the defender will grant the lands redeemable , the pursuer is content , that the intromission be ascribed to the liferent right primo loco . the defender answered , that though george stuart declared not by what title he possessed , yet his intromission must be ascribed potior● juri , to that right which was preferable , and so to the liferent , which would undoubtedly exclude his appryzing : and therefore he acquired right from the liferenter , being then in possession , and it is unquestionable , that any party who hath many titles , though they first make use of one , if that be reduced , they may make use of the rest , and so the defender , in respect the liferent infeftment is improven , makes use of the tacks . the pursuer further alleadged , that the tacks comprehended lands not contained in the contract of marriage ; and as to there , it was a voluntar deed granted by a husband to his wife , stante matrimonio , and revocked by george stuarts appryzing , which is a legal disposition in the same way , as if the husband had disponed to george : likeas the doctors debt was anterior to these tacks , so that george stuart in so far cannot cloath himself with these defective rights , against which his appryzing would have prevailed . as to the superplus the defender answered , that albeit the superplus were donatio , and that the husband might recal it indirectly by a subsequent disposition , it was never found that an appryzing was such a revocation . and albeit the doctor might reduce the tacks , as to the superplus , being without an onerous cause , after his debt , yet that reduction cannot take effect ante litem mot●m , to make the liferenter , or george stuart comptable for the bygone fruits , or which is equivalent to impute them in the appryzing . the lords found that the defenders intromission might be imputed to the liferent tacks , and not to the appryzing , but as to the superplus they were not clear , even to impute that in the appryzing , upon the considerations alleadged by the defenders , but as to that , the hour prevented the vote . margaret hunter contra the creditors of john peter . june ● . . there being a competition betwixt margaret hunter , the relict of umquhile john peter and his creditors , appryzers or adjudgers of his lands in anno . the said margaret produced an infeftment by her husband , of a yearly annualrent of . merks , bearing to be for implement of her contract of marriage ; which being also produced , by her registra●● ▪ bear only to four thousand merks of tocher , and an obligement , that upon payment of the tocher , the husband should imploy the same , and four thousand merks more for her in liferent ; whereupon the creditors alleadged that her infeftment behoved to be restricted to the annualrent of eight thousand merks : and she having alleadged that her contract was vitiat after the marriage , and did bear seven thousand merks of tocher , and an annualrent thereof , and of other seven for joynture , the seven was made four , but that not being then instructed , the said margaret was only preferred as to the annualrent of eight thousand merks , but prejudice to her to prove any further , to have been in her contract , and that the same was vitiat . she now pursues a declarator against the creditors , that her contract was altered , and vitiat after the marriage , and that she ought to have a poinding of the ground , for two hundreth and ten merks yearly , the times bygone , wherein her infeftment of seven hundreth merks , exceeded the annualrent of eight thousand merks , and which she yet wanted , and for the whole seven hundreth merks in time coming , whereupon witnesses were adduced , for proving of the vitiation , which they did prove . and it was now alleadged by the creditors , that although the contract was altered , yet she could have no more in their prejudice , but the annualrent of eight thousand merks , because the contract was altered before it was registrat ; and her infeftment bears expresly for implement of her contract registrat , which must import , that it was an implement of the contract as it was altered after the registration , and not as it was before the registration , seing it does not mention the particular sum , either of eight , or fourteen thousand merks ; and the seven hundreth merks , is but fifty merks more than the annualrent of eight thousand merks , at the time of the infeftment . dly , the contract was altered by consent of the father and the husband , contracters , and if need beis , it is offered to be proven , that it was with the relicts own consent , so that it was no vitiation , but a warrantable alteration , dly , albeit it had been unwarrantably altered , yet two creditors having lent their money to john peter , bona fide ; and seing an infeftment granted by her husband in implement of the contract of marriage registrat ; and finding only in the register eight thousand merks , and she having produced it , and made use thereof , and so homologat the contract altered , they could be prejudged , but she might pursue the heirs of john peter . thly , they having bruiked by their infeftment and a decreet , they cannot be lyable for the repetition of bygones , nor cannot suffer their ground to be poynded therefore ▪ but this declarator can only take effect a sententia aut lite mota . thly , though the vitiation were fully sustained , john peter was only obliged to infeft her in an annualrent , e●●e●ring to the tocher , upon payment thereof , ita est , the tocher was never payed , and so she can only claim the annualrent of seven thousand merks , which the husband should have added to the tocher . and albeit ordinarly such clauses prejudge not the wife , where the tocher is not payed through the husbands neglect , who is obliged to do diligence for his wife . yet here it is offered to be proven , that the relicts father was insolvent the time of the contract , and still thereafter ; so that no diligence could have recovered it . it was answered for the relict to the first , that albeit her infeftment relate to the contract which was registrat , yet not to the contract as it was registrat , and the husband having so great trust , the wife was not obliged to look to the register or extract , which was in her fathers and husbands custody ; and by the testimonies of the witnesses it appears , that they have colluded to abate both the tocher and joyntour , without her consent . to the second , the father and husband not being sole contracters , but the wife , they could not after the contract and marriage , without her consent , alter her right . to the third , the creditors lending their money , bona fide , , cannot prejudge the relicts right ; for bona fides operats only in payment made , and other necessary deeds , but not in voluntary acts , as lending of mony , wherein the lender must follow the faith and condition of the borrower , whose rights , though never so clear in any record , yet if thereafter they be improven or reduced , the creditors bona fides , avails nothing , and though the relict made use of the contract vitiat , yet it was with reclamation against the vitiation ; and therefore in the decreet , the same is reserved , which is the ground of this declarator . to the fourth , the relict craves not the repetition of the fruits uplifted by the creditors , but only that the ground may be poynded for what she wants of bygones . to the last , by no practice was ever a wife prejudged , by not payment of the tocher ; and albeit the fathers being insolvent , might have been a ground to the husband to refuse to infeft his wife , in any more than the annualrent of . merks , till the tocher were payed : yet where he has actually infeft her in more , and even before contracting of the creditors debt , her infeftment must stand valid , seing it was less than what was her right . the lords found the vitiation of the contract to have been after the marriage , and sustained the declarator , and ordained the ground to be poynded for what she wanted of her infeftment of . merks for bygones , and for the whole in time coming , unless it were proven by the wifes oath , that she consented to the alteration of her contract . margaret livingstoun contra burn● . iune . . margaret livingstoun as donatrix to the bastardy of a mason in falkirk , pursues a declarator of the bastardy , and restitution of the goods against burns , who alleadged no process , because the libel , condescending upon the bastards father and mothers names , and that the defunct was bastard , the same must be proven by vvitnesses , and so the summons must be continued , it being a known maxime , that all summons , not instantly verified , either by presumption , or probation by vvrit ; but which must be proven by vvitnesses , or oath must be continued . the pursuer answered , that albeit ex alundante , she had condescended on the bastards father and mother , yet whoever were father and mother , ( that they were not married together ) is a negative , and proves it self , and needs no further probation , but is presumed , and puts the burden of probation upon the defender , that they were really married , at least so holden and repute . dly , albeit probation were necessar , that the defunct was either bastard , or so commonly repute , the probation may proceed upon the first summons , in favorem fisci , and is so accustomed in declarators of bastardy , and in declarators of non-entry , wherein though the death of the vassal be libelled , yet the summons is not continued . the lords found that the summons behoved to be proven , that the defunct was at least holden and repute bastard , and that bastardy was not presumed , but they sustained the declarator without continuation , and that the declarator might proceed upon the first summons . scot of thirlestoun contra the laird drumlanrig . eodem die . scot of thirlestoun having adjudged cerrain lands , charges drumlanrig superiour , to receive him , who suspends , and alleadges he ought to have a years rent , conform to the late act of parliament . it was answered that this and all other acts have effect ad futura : but not only this adjudication was led before the act , but drumlanrig was charged before the act , and having no just reason to disobey the charge when he was charged , he cannot claim the benefite of a subsequent law. it was answered , the tenor of the act was declaratory , and bear a general clause , that adjudications should be in all things as apprizings . the lords found , that seing the act did not expresly relate to bygones . it could not extend to any adjudication , whereupon a charge was given before the act. lord iustice clerk and his son sir alexander . contra earl of hume . eodem die . there being a contract betwixt the earl of hume and iohn stuart of coldinghame , and francis stuart , sometime earl of bothwel , whereby the lordship of coldinghame was agreed to be possest by the earl of hume , until he were payed of nineteen thousand pounds ; and also that the earl should uplift two hundreth pound sterling of annualrent ●orth ●hereof to him , and the heirs-mail of his body ; and it was declared that the possession for the nineteen thousand pound , should only be for the annualrent thereof , fructibus non computandis in sortent , sir alexander hume as having right to this contract by progress , did pursue a declarator against the late earl of hume , that in regard his predecessor , the earl of hume contracter , died without heirs-male of his body , and he continued to possess , who had no right to the annuity of two hundreth pound sterling , that his possession did satisfie the nineteen thousand pound , and purged the right , the said umquhil earl dying , there is now summons of transferrence at sir alexanders instance , against this earl of hume , as representing his father , and also therein a declarator against this earl as appearand heir , that the contract was satisfied and extinct by intromission , and the lands liberate . compearance is made for an appryzer , who produced his infeftment , and who had apprized the lordship of coldinghame , and all right thereof , competent to the late earl of hume , who alleadged no process for the conclusion of declarator against this earl of hume , because all parties having interest , were not called , viz himself who had denuded the earl of hume , and who is not cited . the pursuer answered , that this being a personal contract with the earl of hume , whereupon no infeftment had followed , seing the original right was in no register , he was not obliged to search the register for the infeftments of appryzers , but it was sufficient for him to call the appearand heir of the contracter : but seing this alleadgeance could not be proponed for the earl of hume , being jus ter●tij , neither by the appryzer , unless he had produced his right to verifie the same instantly , seing he now compears for his interest , he may be admitted and heard to defend thereupon in causa , but not to delay , or exclude the process till a new citation , but according to the lords ordinar custom , he may see the process in the clerks hands , and propone his defense as the lords have done in the same process against one park another appryzer . the lords repelled the defense , but allowed this appryzer , as they had done the other to see in the clerks hands , and to be heard upon his right ; and ordained all the advocats compearing for the defenders , to produce any other interest in their hands , and not be delay the process , by dropping them in severally . langlands contra spence of blair . iune . . langlands pursues spence of blair for reduction of his rights , of certain lands granted by hamiltoun of blair his author , because hamiltoun was inhibit at the pursuers instance , before he granted these rights to the defender . it was alleadged for the defender , absolvitor , because the inhibition was null , the question being of lands lying within the regality of culross , and the inhibition was not execute at culross the head burgh of the regality , but at pearth the head burgh of the shire ; and for instructing that culross was a regality , the lord colvils infeftment was produced , which though it bear not expresly a regality , yet is bears a bailirie , with power to repledge , which importeth a regality , and accordingly the bailzie and not the sheriff , makes count in exchequer , and briefs are direct to the bailzie ; and there is produced an inhibition anno . and another in anno . execute at culross . the pursuer answered that culross was never denominat , holden , or repute a regality , but a bailliry , and though the power of repledging , be a special priviledge of regality , yet there are many other priviledges thereof , not consequent upon the repledging . dly , the pursuer having followed the ordinar course , used the time of his inhibition , viz. by executing at the mercat cross of the head burgh of the shire , he hath produced three inhibitions about that same time execute as his is ; so that what was then holden repute to be the head burgh , is sufficient for him to make his legal diligence subsist ▪ and for the inhibition execute at culross in anno . it cannot be respected , because it is known that at that time regalities were supprest by the english ; and for the inhibition in anno . it might have been done of purpose , pendente processu , and cannot regulate the custom the time of the pursuers inhibition which was in anno . the lords sustained the pursuers inhibition and reduced , for they neither found it clear that culross was repute a regality , not that the custom was to execute inhibitions there at that time , but at pearth the head burgh of the shire . mr. iames cheap contra magistrates of falkland . iune . . mr. iames cheap pursues the bailzies of falkland to pay their debt due to him by provest mains , who being taken by caption , and delivered to the bailzies by the messengers , they keeped him in a private house for the space of ten dayes , for which they are alse well lyable for the debt , as if they had brought him out of the tolbooth , and keeped him in the town during so much time ; and also they were lyable in so far as having put him thereafter in the tolbooth , they suffered him to escape forth thereof . it was alleadged for the defenders , they were not obliged to keep prisoners , not being a burgh royal , but only a burgh within a ste●●rtry , which no law obliges to receive prisoners , and the caption is only direct to sheriffs , baillies of regalitie , or royalty , steuarts , and magistrates of burghs royal , but not to burghs within steuartries , or within regalities , albeit they were the head burghs of the steuartry or regality , not being burghs royal. dly , the defenders cannot be lyable for keeping the prisoner some dayes out of the tolbooth , seing he did not then escape : and albeit it be a fault for which they may be censured , to keep a prisoner in a private house , yet the doing thereof , if the rebel escape not , makes them not lyable to the debt , but especially where the rebel was never in the tolbooth , and when there was treaty betwixt him and the pursuer and his servant , for an agreement and satisfaction and security for the sum. dly , they offered to prove , that the tolbooth was sufficient , and that the prisoner escaped vi majori , by breaking the roof of the prison without their fault . the pursuer answered to the first , that he opponed the act of parliament , ordaining sufficient prison-houses in all burg●s , parl. . cap. . dly , whateven this burgh might have pretended for refusing to accept the prisoner , yet having accepted him , and suffered him to escape , they are lyable as having acknowledged themselves to be lyable ; and if they had refused the prisoner , the pursuer would have imprisoned him in another uncontroverted burgh . to the second defense it was answered , that magistrates are lyable for the debt of rebels offered to them , if they do not put them in prison , or if they suffer them to come out of prison without warrand , and the pursuer needs not dispute that the prisoner went out by the magistrates fault , and their contumacy is sufficient in not obeying the letters , by putting him in their publick prison , but keeping him so long in a private house . to the third defense the pursuer offered him to prove , that the prison was insufficient , and that thereby the rebel did escape . the lords found , that seing the defenders did receive the rebel upon the caption , they could not now dispute , whether they were lyable to receive or not , as being the head burgh of the steuartrie , and therefore the lords did not determine that point . likewise , the lords found that the keeping of the rebel ten days before he was imprisoned , there being treaty in the time , and they not urged to put him in the prison , did not oblige them . as to the last point concerning the sufficiency , or insufficiency of the prison , the alleadgeances being contrary , the lords would prefer neither party in the probation , but before answer ordained either party to adduce witnesses , concerning the condition of the prison , and manner of the rebels escape . collin hay contra magistrates of elgin ▪ eodem die . collin hay having pursued the magistrates of elgin for a debt of a rebel , arrested by him in their tolbooth , upon caption , and suffered to escape , and the town having failed in all their defenses , did at last offer to prove , that the execution of the messenger bearing , that he arrested the prisoner , and made intimation of the arrestment to the magistrates , was false , whereupon there being three witnesses insert , and one dead , the messenger , and one of the living witnesses deponed and acknowledged the arrestment , but differed in the manner of it , the execution and the messengers oath bear , that he came to the rebel being in prison , and commanded him to remain therein , by vertue of the caption , till the debt were payed ; the affirming witnesses deponed , that the messenger came with the caption to the tolbooth door , but that he went not in , and does not remember that he knocked at the door , out that he chalked the door , and commanded the prisoner to remain , but the witnesses denyed , that they remembred any thing of the intimation to the magistrates , and the other of the ●ing witnesses denyed that he was witness to the arrestment or intimation , whence the question arose , whether the intimation was necessar , or though it were improven , if the arrestment did stand , and were sufficient to oblige the magistrates , who were obliged to have a jaylor , and to keep a book of arrestments : and next , whether this arrestment was sufficient , not being made to , or in presence of the jaylour . it was alleadged for the defenders ▪ that few towns in scotland keeped a record of incarcerations , and here the magistrates and clerk had sworn , that there was none in that town at that time , neither did the execution bear that the jaylour was comanded to 〈◊〉 the prisoner ; and albeit one of the witnesses depones that he was jaylour at that time and the messenger and other witnesses depones that he was present at the arrestment , yet the execution bears not any command to him to detain the prisoner , but only to the prisoner to remain in prison , and the jaylor is a witness in the execution , and not a party , and denys the same even that he was so much as witness , by his oath ▪ neither does the messenger and the affirming witnesses agree in the substantials of the arrestment ; and for the messenger he is a party , whose execution is quarrelled , and is infamous , and excommunicate for great crimes . it was answered for the pursuer , that the arrestment stood valid , and was not improven but approven as to the substantials requisite thereto , for the messenger and one of the two living witnesses do agree , that the arrestment was made by the caption at the tolbooth door , in presence of the jaylour , and though it was not so formally done , by commanding the jaylour , yet it was sufficient that the prisoner was commanded in the jaylours presence , which is sufficient , albeit not so formal , in making the jaylour witness , neither can respect be had to the jaylours oath , denying that he was witness , because confessing he was jaylour , he is a party lyable for suffering the rebel to escape , neither doth it import , that after so long a time , the affirming witnesses do not remember all the circumstances , seing he affirms the arrestment to be made , and that by his own advice , he being also a messenger ; nor is the pursuer obliged to dispute the fame of the messenger , who lived at so great a distance from him , and was continued in that publick trust undeposed ; so that there being three witnesses insert in the execution of the arrestment , one of them who is an inhabile witness , as a party denying , another affirming , the third being dead , doth unquestionably stand as a proving witness : for where are many witnesses in a writ or execution , if there be one living that affirms , all that are dead affirm with him , though other living witnesses deny : much more here , where of three , two being alive , the one affirms , the other denys , but i● a party concerned , and the messenger also affirms . the lords found that there being here no formal arrestment made to the jaylour , astructed by the testimo●ies of the witnesses , and that the intimation thereof was clearly improven , they assoylzied the magistrates , but if the arrestment had been good , they would not have ●ound the intimation necessar , whether the town keeped a book or not , but that the arrestment , made to the keeper of the tolbooth , whom they intrusted , were sufficient . dowglas of lumsdean contra dowglas . iune . . umquhil dowglas of lumsdean dispones his estate to archibald dowglas his son , reserving power to himself at any time during his life , to burden the estate with four thousand merks , and did thereafter grant a bond of four thousand merks , in favours of elizabeth lyel his wife , in liferent , and of iohn dowglas their son in fee , who thereupon pursues the said archibald for payment . the defender alleadged absolvitor , because the reservation in the disposition , being in favours of the defunct , can only be understood of a legal power , to burden according to law. ita est , this bond of provision was granted by the defunct , when he was not in legiti●ua potestate , but on death-bed , especially seing the reservation does not bear a power to dispone at any time time in his life , etiam in articulo mortis , which is the clause ordinarly adjected , when the meaning of parties is , that the power should extend to deeds on death-bed ; and thereupon the pursuer hath intented reduction , which he repeats by way of defense . the pursuer answered , that the defense is no ways relevant , because the priviledge excluding deeds on death-bed is introduced by law in favours of heirs only , that the defunct may not prejudge his heir on death-bed , but if a party dispone , he may qualify his disposition as he pleases , and he who hath so accepted the disposition cannot quarrel the same ; and albeit these words etiam in articulo mortis are sometimes adjected propter majorem ca●telam , yet the words ( at any time during his life ) are sufficient to import either in his health or in his sickness . the defender answered , that whatsoever might be alleadged , if the disposition had been to a stranger , of that interpretation of the words , yet this disposition being granted to the disponers own eldest son and appearand heir , it must be understood only of such deeds as might be done against an heir , and here the creditors do also concur , who in place of the heir might pursue the reduction , and against whom the personal objection of acceptance cannot be alleadged . the pursuer answered , that the defender was not appearand heir , because it is notourly known that his father begot him in adultery , upon the wife of sir alexander hume , for which adultery she was divorced from her husband , and albeit he did co-habit with her thereafter as his wife , that cannot infer ( as in other cases ) that she was his wife , because marriage cannot consist betwixt the adulterer and the adulteress , and all their issue are disabled to succeed , so that the pursuer of the reduction is the eldest son , and appearand heir , in whose favour the provision is made . dly , albeit the defender were , or could be appearand heir , yet here having accepted a disposition of the whole estate , burdened with this provision , his acceptance excludes him , who is thereby bound , and cannot pretend to any priviledge of an heir ; for albeit re integra he might renunce the disposition ; and return to bruik as heir , now he cannot , having bruiked by the disposition ; and for the creditors concourse they are not pursuers , and they may insist in any action competent to them by law , but cannot oppose this personal obligement , whereby the defender by the acceptance of the disposition in these terms , is become obliged to pay the pursuer the sum in the reservation . the lords repelled the defense , and found that the reservation in the terms as it stood , did extend to burdening of the estate at any time the disponer pleased , and was in capacity of sense and reason ▪ though on death-bed , and found no necessity to dive in the questions concerning the defenders procreation , and capacity of succession , seing he had accepted , and bruiked by the disposition so qualified , and did not admit the creditors to oppose this conclusion , but reserved their rights as accords . elizabeth finlaw contra the earl of northesk , iune . . elizabeth finlaw and her children as executors to robert beat●●e , did assign to the umquhile earl of ●athie a bond granted by the laird of du● to the said robert 〈◊〉 of . pound , and the laird of morphie standing infeft under trust in duns estate , grants a bond of corroboration to eathie , obliging him to pay all sums due by dun to eathie himself , or to which he was assigned by duns creditors ; thereafter morphie grants a second bond of corroboration to eathie , but derogation of the 〈◊〉 bond of corroboration , obliging him to pay what sums were due by dun to eathie for himself , or as assigney , and that out of 〈◊〉 superplus of duns estate , more then payed morphie himself . the earl of eathie transfers the bond of . pounds , and both these bonds of corroboration in favours of the said elizabeth and her children , and the translation bears for sums of money payed by them to eathie , and bears that the second bond of corroboration was delivered , but bears not that the first was delivered , neither bears it the obligement to deliver the same ; the translation also bears warrandice from eathies own deed. the said elizabeth and her children having pursued morphie upon the said second bond of corroboration , he was assoilzied , because he had no superplus in his hand . she now pursues the earl of northesk as heir to his father , to deliver the first bond of corroboration transferred by his father , whereby morphie was bound to pay the debt simply , without preference of his own debt , or otherways that northesk should pay the damnage and interest , which is the debt it self . the defender alleadged absolvitor , because by the transaction his father was not obliged to deliver the first bond of corroboration : likeas the translation bears the second bond of corroboration delivered , so that the pursuer has aequiesced therein ; and albeit the stile of the translation bears for sums of money , yet it is clear thereby that it is but a retrocession of the pursuers to their own right , which they themselves had assigned , which doth presume that eathie was but intrusted , and seing he has reponed them in better condition than they were by the second bond of corroboration , he cannot be obliged to deliver the first bond which morphie freely granted as a favour to eathie , unless it did appear such a bond was , and that eathie had fraudfully put it away , whereanent he is content to depone , so that the transferring the first bond must only import , if any such bond was the time of the translation , which would not oblige eathie to deliver it , unless he had it , much less to pay the sum pro damno & interesse . dly , eathie having accepted the second bond of corroboration , with a limitation of preferring himself , it qualifies the first bond of corroboration , so that though the pursuer had it , it could operate nothing more nor the second , and so he has no damnage . the pursuer answered , that eathie having transferred the first bond of corroboration granted to himself , hoc ipso , he is obliged to deliver the same , though the translation expresly bear not an obligement to deliver quod inest , neither can eathie pretend that there was not such a bond of corroboration , seing the translation acknowledges that it was granted to himself , neither doth it appear that the translation was in trust , seing it bears expresly that it is granted for sums of money ; and although it had been in trust , eathie having acknowledged that morphie granted a bond of corroboration to pay the sum simply ; it was contrare to his trust either to give back that bond , or to qualifie it . dly , the second bond of corroboration cannot restrict the first , because it bears expresly in corroboration thereof , and but derogation thereto . the lords sustained the summons , and repelled the desenses , and found that the translation in terms as aforesaid did import an obligement to deliver the first bond of corroboration , or otherwise to pay the debt , as damnage and interest , seing morphie was assoilzied from the second bond of corroboration . eleis of south-side contra carsse , iune . . master richard carsse of fordel having granted a bond of . merks to his sister in liferent , and after her decease to her daughter , she assigns the same to iames eleis her brother , who now pursues charles carsse as heir to doctor carsse , who behaved himself as heir to mr. richard carsse the debitor , in so far as he intrometted with the charter chist , and gave a receipt thereof to arnistoun , bearing , that he as heir to mr. richard carsse had received his charter chist , and all the writs and evidences belonging to the house of fordel , which charter chist he keeped two years , and died , it being in his possession ; likeas he raised breevs to serve himself heir , and subscribed a revocation of all deeds done by mr. richard in his minority , which is registrat : the defender alleadged the condescendencies are no ways relevant , for as to the charter chist , as he might have pursued arnistoun to produce it for inspection ad deliberandum , so he might receive it from arnistoun voluntarly for that same effect , which cannot import behaviour , unlesse he had made use of some of the writs belonging to him as heir , and this being an odious universal passive title , any probable excuse ought to liberat , especially this doctor , who was a doctor of divinity , reciding in england , and ignorant of the law of scotland , and who never enjoyed the least benefite of mr. richards estate , and the defender was content to restore the charter chist re integra , and to instruct by the oaths of the friends consenters in his discharge , that there was nothing wanting , but it was in the same case he received it ; as for the taking out of breevs , albeit it signified the doctors purpose to have been heir , yet behaviour must include an act of immixtion , or medling with the heretage , and animus adeundi , as having no other title or intent but as heir ; and as for the revocation it is a null act , operative of nothing , but for reduction which was not intented , and is no medling with the heretage . the pursuer answered , that there could be no more palpable and unquestionable immixtion , then by the receipt of the defuncts whole writs and evidences , and that without so much as making an inventar thereof , to have been subscribed by the haver of the charter chist and him , neither has he qualified his receipt so as that he might deliberat , but bears him as appearand heir , to have received the same simply ; likeas he detained the same two years ; and as to his ignorance , ignorantia juris n●minem excusat , and the pursuer is in this also favourable , that this bond is a provision granted to mr. richards sister , and heir of line , and the doctor , and this defender were but heirs of tailzy of a further degree . the lords found the condescendence relevant conform to the receipt of the tenor foresaid , and the retention of the charter chist without inventar so long ; and whereas it was moved amongst the lords , that they had oftimes refused vitious intromission against any representing the intrometter , unless sentence or pursuit had been against the intrometters in their own life , whether that should be extended to behaviour as heir , where there was no pursuit against the behaver in his own life , but the behaviour being so considerable and universal , with all the evidents without inventar , it did not take with the lords , neither did the party plead it , but the lords did not find that the taking out of breevs , or the revocation imported behaviour . greigs contra iames weems , iune . . by contract of marriage betwixt iames weems and umquhile iudith nairn : it was agreed that the means and the estate of either party , contained in an inventar of the date of the contract , should return to either party , failzying bairns of the marriage , and should not be under communion . thereafter the wife provides a daughter of a former marriage , to a part of her means in the inventar , with her husbands consent . by which contract it is provided , that in case the marriage dissolve within year and day , or in case at any time thereafter , there being no children , the tocher should return to the said iudith nairn : and the said iudith leaves in legacy . dollars due by the estates of bremen , which was a part of her inventar , to her husband and her three children of the first marriage , there being no children of the second marriage ; whereupon iohn , charles and iudith greigs pursues the husband for the legacy , as having uplifted this sum from the estates of bremen . the defender alleadged , first , that the clause in the contract of marriage , taking away the communion of goods , and making even the moveable estate of either party to return , is against the law of scotland , inconsistent and ineffectual ; for any reservation or provision in favours of the wife , doth ipso facto return to the husband jure mariti , which jus mariti neither is nor can be discharged ▪ dly , albeit the first contract of marriage were consistent , yet the sum in question being provided to one of the daughters of the first marriage by her contract , upon condition to return to the wife if the marriage dissolved , the marriage dissolving ▪ it comes back to the wife tanquam novum jus ex pacto acquisitum , and so it falls under the husbands jus mariti , as well as any sum acquired would . dly , the husband uplifted this sum by commission from his wife , and so it must be presumed to have been spent in oneribus matrimonij , at least the husband must have retention of his expences in recovery thereof . the pursuers answered , that albeit provisions in contracts of marriage , stating rights in the wifes person , to be enjoyed by her during the marriage , have not been sustained in some cases , yet this being a provision of a return after the dissolution of the marriage , it is most consistent , especially in this case , where the estate contracted was abroad , and the contract it self made abroad , where by the civil law current there , the means of either party doth return hinc inde , and the profit thereof is only common● stante matrimonio , neither is the case altered by the daughters contract , for both by the law and that paction , the tocher returning to the mother who gave it , in the same case it was , it is hers by her first right , the second right by the marriage becoming void , both by law and provision ; neither doth it import that the husband lifted the sum , for by the contract he is obliged to repay it , and could only employ the profit of it , in oneribus matrimonij . the lords repelled all these defenses , but allowed expences to the husband laid out by him in recovery of the sum. lindsay and swintoun her spouse contra inglish supplicants , iuly . . . 〈…〉 pursues his debitor , and craved him to be holden as confest , who not compearing , the clerk was not clear to give out an decreet , because the messengers execution did not bear , that the defender was personally apprehended , but that the messeger came to his house and knew he was within , and was forcibly keeped out by his wife , and thereupon protested that the defender might be holden as personally apprehended ▪ upon the clerks stop , the pursuer gives in a supplication , desiring that he might either have out his decreet , holding the defender as confest upon this execution , or that he might have a warrand to cite the defender at the mercat crosse of the shire or burgh where he dwells , as being difficilis conventionis , some were of opinion that he should be holden as confest , the messenger proving that he was within , or if the execution had born that he and the witnesses also had given a particular evidence of their knowledge of his being within ; others thought that he should be holden as confest , unlesse the defender could instruct he was alibi in regard of the contumacy , but the most resolved that holding as confest , being a solemn and important certification , peculiar to scotland , that this assertion of the messengers , and his execution should not be sufficient , nor should put the defender to alleadge alibi , but that he should have a warrand to cite at the mercat crosse , with certification to be holden as confest . arch-bishop and presbitry of st. andrews contra george pittillo , iuly . . george pittillo being called before the prisbitry of st. andrews , for scandalous conversation with agnes mitchel , two ministers of the presbitry were appointed to speak with him , to whom he proponed he was married to the said agnes mitchel , and produced a testificat of some persons , bearing that they were witnesses to the marriage , but neither designing themselves nor the minister , which being reported to the presbitry they rejected the testimonial , unless the minister and witnesses were designed , and if they were designed , ordained the party to make satisfaction for privat marrying without warrand , and the said george not compearing before the presbitry so to do , they for his contumacy appoints the process to be seen by the arch-bishop , who ordained the party to be excommunicat , and accordingly he was excommu●icat , and now the arch-bishop and presbitry caused present a common bill for horning against the excommunicat person , for charging him to answer , submit and obey the censure of the kirk , this being brought by the ordinar to the lords , to know whether they would pass the horning in course , or if they would consider whether the sentence of excomunication was orderly proceeded . the lords ordained two of their number to consider the process of excommunication , and to hear any that did compear for the party excommunicat , to debate whether horning should be direct thereon . before whom compearance was made for the said george pittillo , who alleadged that horning ought not to be direct , because the sentence was disorderly and unjust , and because there was an appeal to the council yet undiscust , and founded upon the late act of supremacy , alleadging that the king and his council were supream in all causes ecclesiastick , so that appeals might be lawfully made ( from any church-man , or church judicature ) to the king and his council : and further alleadged , that he being unclear to acknowledge the bishop or his presbitry ; and the king having now granted an indulgence to many that did not acknowledge episcopal authority , it could not be contumacy in him not to appear ; but he was content that it should be now cognosced whether he was in the fault , and if he were found guilty , he should submit and make satisfaction ; which being reported to the lords and there being several other nullities in the process of excommunication , which behoved to be cleared by the warrands of the process , and having heard these of their number that are upon the council declare that upon the appeal , the council remitted the matter to the arch-bishop . the lords ordained letters of horning , unless pittillo would presently offer satisfaction , in which case they would give him a time , and superceed the out-giving of the letters . lady lucie hamiltoun contra boid of pitcon and others , iuly . . the earl of abercorn having sold the lands of mountcastle to george hay ; he gave the earl a bond of . merks , bearing borrowed money , but being a part of the price , and bearing this provision , that it sholud not be payable till the earl obtained george infeft by his superior . the earl assigns the bond to lady lucy his sister , who having raised inhibition upon the bond against george hay , and having thereafter charged him , he suspended , alleadging that the condition was not fulfilled he not being infeft , and the lady offering a part of the sum to purge that condition , pro damno & interesse , and to procure his infeftment , george accepted of the offer , and thereupon the letters were found orderly proceeded for . merks of the sum , and suspended for the rest in place of the condition , upon this decreet the lady apprizes the lands of mountcastle , and now insists in a reduction of a disposition of the same lands , granted to dunlap and pitcon for themselves , and to the use and behove of the disponers other creditors underwritten , viz. where there was a blank of several lines , which is now filled up by another hand ; and though this disposition was anterior to the inhibition , and did prefer dunlap and titcon for any sums due to themselves , or for which they were cautioners the time of the disposition ; yet the lords found by a former interlocutor , that as to the other creditors filled up in the blank , it should be repute as posterior to the inhibition , and filled up after the same , unless the creditors prove by the witnesses insert , or other witnesses above exception , that they were filled up before the executing of the inhibition . the cause being called this day , the creditors repeated their former alleadgeance , and offered to prove that their debts were anterior to the inhibition , and also that at the subscribing thereof , it was communed and agreed that dunlap and pitcon should undertake the remainder creditors debts , at least they promised to give dispositions of parts of the estate effeirand to their debts , and accordingly they had done the same after the inhibition , but being upon a promise before the inhibition they were valide , having causam anteriorem , and they offered to prove the communing and promise by the writter and witnesses insert . dly , they offered to purge and satisfie the pursuers interest . dly , they alleadged that their disposition from the common author of the property of the lands in question did comprehend all right the disponer had , and consequently the condition and provision in the bond , that before payment george hay should be infeft , for the disposition would no doubt carry any obligement for infefting the common author . the pursuer opponed the former interlocutor , and alleadged that she was not obliged to assign her right , seing she had now apprized , and that her apprizing was now expired , and yet of consent she was content to renunce her right , but would not assign it to exclude other creditors , or to distresse the cautioners ; and as for the condition of the bond , the defenders disposition gave them no right thereto , because there was no obligement in the bond to obtain the common author infeft , but only a suspensive condition , that payment should not be made till he were procured to be infeft , for hat the provision to obtain the infeftment , being only an condition , and not an disposition , after the disposition to the defenders , the pursuer might have payed the bond , or transacted thereanent with george hay , and was not obliged to know the defenders . the lords adhered to their former interlocutor , and found the offer not sufficient , and that the pursuer was not obliged to assign her right , though she had offered of her own accord to renunce it , and found the persons intrusted their undertaking the creditors debts before the inhibition relevant , only to be proven by writ , or by the ladies oath of knowledge , and would not make up such a material clause by the oaths of the witnesses insert , nor of the persons intrusted , and if they had made any such promise it was their own fault , that they caused not put it in writ , knowing that their oaths , albeit they might prove against them , yet that they would not prove for them , for the lords thought that if such blanks and clandestine promises were allowed , they might disappoint the diligences of all creditors . thomas kennedy contra archibald kennedy of culzean , eodem die . the laird of culzean having three sons , iohn archibald and alexander , for a provision to archibald the second , dispones his lands of corrowa and others , with this provision , that if iohn should die , and archibald succeed to be heir , archibald should denude himself of the lands in favours of alexander , and if archibald wanted heirs of his body , alexander should be his heir , notwithstanding of any law or custom to the contrare ; thereafter a few moneths before the fathers death , this fourth son called thomas was born , iohn the eldest , and alexander the third are both dead infants , archibald falls to be heir , and so the condition exists , in which he was obliged to dispone to alexander . thomas enters heir of line to alexander , and pursues archibald to dispone the lands to him . it was answered for archibald , that thomas as heir of line to alexander can have no right to this provision . first , because the provision is only in favours of alexander , without mention of his heirs . dly , though it could be extended to alexanders heirs , yet it being no heretage to which alexander could succeed ; it is conquest , and would not descend to thomas , alexanders heir of line , but would ascend to archibald as heir of conquest to alexander . it was answered for the pursuer , that in this case the●meaning and intention of the father must be considered by his provision inter liberos , which is clear to have been that archibald should not both have his estate , and these lands of corrowa , but that the same should descend to alexander , and if thomas had been then born , he would no doubt have provided that failzying of alexander , archibalds portion should fall to thomas ▪ and if he had declared that the lands of corrowa should only belong to the heirs of line , it would undoubtedly have excluded the heirs of conquest : he has done the equivalent , for having provided the lands to archibald and his heirs whatsomever ; he does by a posterior explicatory clause , declare that if archibald died without heirs of his body , alexander should be archibalds heir therein , notwithstanding of any law or custom to the contrare , which can have no other meaning then that , notwithstanding by the law , iohn as heir of conquest would succeed to archibald , wanting heirs of his own , yet alexander the younger , who would be heir of line should suceeed , which is as much as to say that this provision should belong to archibalds heirs of line , and not to his heirs of conquest , and consequently having made no mention of alexanders heirs , he did also mean alexanders heirs of line , who is the pursuer thomas , and the case is so much the more favourable , that if this failed , thomas hath neither provision nor aliment . the lords considering that both parties were infants , and that if archibald should die , thomas would get all , superceeded to give answer anent the heretable right of succession until both parties were major , and in the mean time allowed thomas to possesse the profits of the lands , who had no aliment nor provision . kennedy contra cunningham and wallace , iuly . . there being an apprizing of the lands of garleith , belonging to iohn kennedy , at the instance of edward wallace ; the said edward by his back-bond declared that the apprizing was to the behove of william wallace of burnbank his brother , and obliges him to denude himself thereof in his favours : thereafter the said edward assigns the comprizing , and dispones the lands to adam cunningham , who stands infeft , and in a debate for the interest of this apprizing , it was alleadged that edward wallace the apprizer , having by his back-bond declared , that the apprizing was to william his brothers behove , conform to his back-bond produced , the said william was satisfied by payment or intromission , so that the apprizing is extinct . it was answered for cunningham , that the alleadgeance is not relevant against him , who stands infeft as a singular successor , so that his real right cannot be taken away by any personal back-bond granted by his author , whereby he was not denuded , for though his author had granted assignation to the apprizing , if it had not been intimat , a posterior assignation intimat much more a disposition and infeftment would be preferred thereto , for albeit satisfaction of an apprizing , by intromission with the mails and duties be sufficient to extinguish , even against a singular successor , though there was no resignation made , which the lords had extended to any payment made by the debitor , yet this was never extended to any personal declaration of trust , or obligement to denude , which cannot be valide against a singular successor . it was answered for kennedy , that apprizings and infeftments thereon , do differ from other infeftments , in this , that they require no resignation or re-seising to extinguish them , but whatever may take away a personal right , either by intromission , payment , or compensation will take them away even by exception ; and what is relevant against the author , is relevant against the singular successor , except as to the manner of probation , that it cannot be proven by the authors oath , but by writ or witnesses ; neither is there any odds as to this , whether there be infeftment on the apprizing or not , so then if cunningham were but assigney to the decreet of apprizing , it would be relevant against him , that before his assignation his cedent had declared that the apprizing was to the behove of another , to whom the debitor had made payment ; which declaration being instructed by writ anterior to the assignation , is valide against cunningham the assigney , and whether he be infeft on his assignation and disposition of the apprizing or not , as to this point , law and custom makes no difference , neither doth the case quadrat with an assignation unintimat , compeating with a posterior assignation intimat , which might be preferred ; but if the debitor made payment to the assigney , though he had not intimat it , it would extinguish the apprizing , and no posterior assignation , though intimat , would make the debitor pay again , and in this case there is a real declaration of trust , which is most ordinar , when parties having small sums ▪ assign them all to one who compryzeth for all , and by several back-bonds , declares that the appryzing is to the behove of the several creditors according to their sums , who have alwayes rested therein , and have sought no further , and if this back-bond were not sufficient against singular successors , the appryzer might at any time thereafter dispone , and clearly exclude them . the lords found that the back-bond was relevant against singular successors , and that payment made to him , to whose behove the appryzing was deduced , was sufficient against a singular successor , having right to the appryzing , or lands from the appryzer , after he granted his back-bond . the daughters of soutray contra the eldest daughter . iuly . . the laird of soutray having granted a writ in favours of his eldest daughter , beginning in the stile of a testament , and after a blank , disponing his lands of soutray , and his whole moveables to the said eldest daughter , with the burden of ten thousand merks to be payed to the remanent daughters : the saids remanent daughters pursue a declarator of the nullity of the writ . first , in so far as being a testament , it contains a disposition of the lands . dly , in so far as the eldest daughter is nominate executrix , and universal legatrix , because by ocular inspection , that part of the writ was blank , and is filled up with another hand , which is offered to be proven to have been done since the defuncts death , so that the executor and legator not being filled up by the defunct in his own time , and these being the essentials of the testament wanting , the whole falls , even as to the disposition of the moveables . the defender answered , that the testament was valide , albeit the name of the legator and universal executor , were filled up after the defuncts death ; yet it is offered to be proven , that the defunct when he subscribed the testament , did nominat his eldest daughter , as executrix and legatrix , and gave warrand to the nottar to fill up the name , which though he neglected then , and has done it since , it ought not to prejudge her . it was answered , that our law allows of no nuncupative testaments , or nominations of executors of legators , unless the testament be perfected in writ , and therefore if the executor or legator be not filled up by the defunct , the testament is not perfeited in writ , albeit the defunct has subscribed the same , as he might have done in a blank paper , and given warrand to the nottar to fill up his testament upon such terms , which could not subsist , though the nottar and witnesses should astruct the same , as not being done , habili modo . the lords found the testament null as to the nomination of the executor and legator ; and also as to the lands , but they found it valide as to the disposition of the moveables , with the burden of the ten thousand merks ; and found that the want of the nomination of the executor or universal legator , did not hinder , but that the defunct might in any way dispone his moveables in testament , or on death-bed , which would stand valide as a legacy , which by our law might consist without nomination of executors but would extend to that part of the moveables only , the defunct might legat. anna raith and iohn wauchop of edmistoun contra wolmet and major bigger . eodem die . in anno . there was a minute of contract betwixt umquhil wolmet , iames and mr. iames raiths of edmistoun , and their spouses , whereby a marriage was contracted betwixt iames edmistoun wolmets son , and mr. iames raiths eldest daughter , and in case of the decease of either of these two , the next son and next daughter to make a perpetual friendship : in contemplation of which marriage , the said iames raith and mr. iames raith his son , were obliged to pay . pounds of portion to wolmet himself , and to lend another sum , for redeeming of a wodset upon the estate , which being done , wolmet was obliged to infeft his son , and to provide eight hundreth merks of joynture to his good-daughter , raiths eldest daughter dies , and the said iames edmistoun , wolmets eldest son marries raiths second daughter , but there was no contract or consent of her parents , and they having lived seven years together , james died without children , and raiths third daughter is married to john wauchop , niddries son , and raiths estate provided to her , whereupon they to liberate raiths heirs and estate of the . pounds contained in the contract , raised declarator , that the minute was null and void , in two grounds : first , because there was no marriage following by consent of the parents , conform to the minute . dly , because raiths obligement to pay the tocher , was to wolmet himself , and for his mutual obligement , of infefting his son , and providing a joynture , which neither was , nor can be done , major bigger now standing in the full right of wolmets estate , and no person to represent wolmet . the defenders alleadged absolvitor from the first ground , because there was a marriage conform to the minute ; and albeit raith did not consent , yet being obliged , he had no just ground to disassent . and to the second ground , seing there was no clause irritant in the minute , albeit the obligements therein were mutual causes each of other , it might be declared , that neither party should be obliged to fulfil , till the other fulfilled their part , but could not annul the minute . the lords found that seing wolmet was in no capacity to perform his part , that the heirs and estate of raith were free of their part , providing that the pursuer who is assigney to the liferent right of the said iames edmonstoun , his wife should discharge the said liferent , and declare that it should never burden wolmets heirs or estate . beation of bandoch contra ogilbie of martoun . eodem die . beaiton of bandoch having a miln upon a burn , running by the lands of greendykes and martoun , the tennents of these lands did by sheuchs and casts , divert the water , and therewith watered their ground , which thereafter returned to the burn , before it came to bandochs dam. bandoch pursues a declarator , that he and his predecessors and authors , having been in immemorial possession of the miln , and having had the free use of the burn , until of late the tennents of greendyke and martoun have diverted the same to water their ground , whereby so much thereof is drunk up by the ground , that there remains not water sufficient for his miln . in this process the lords having before answer allowed witnesses to be adduced on either part . it was proven that bandoch was in possession of the miln , with the free use of the burn these threescore years , and that it was commonly known , that he and his predecessors had been in immemorial possession thereof till the diversion . it was also proven , that the tennents of greendykes had been fourty years in use to water their ground , as now they do . it was also proven that the tennents of martoun have been in use to water their ground this , or . years , whereupon it occurred to the lords to consider , whether the watering of the ground being the most natural and ordinar effect of burns and waters , the building of a miln beneath , could hinder that liberty , or at least , if . years possession were not sufficient to continue the watering . the lords did not consider what effect the building of a miln , with a short possession of the water free of diversion would hinder the heretors from diverting the water from watering their ground ; but finding that the ancient and immemorial possession of this miln , and full injoyment of the water was as much proven , as could be known to preceed the . years , during which , the diversions upon the lands of martoun was proven , they found that the miln and her priviledge being once so constitute , no less then . years peaceable possession of diverting the water for watering , was sufficient , that being the only legal term , and therefore allowed the lands of greendykes to continue the watering , but discharged the lands of martoun to continue the same . sir alexander hume . contra the earl of hume . july . . the right of the erected barony of coldinghame being derived from john stuart of coldinghame , and sir alexander hume younger of rentoun , he pursues a declarator against this earl of hume ; and the creditors and appryzers of the estate of hume , to this effect , that there being a contract betwixt umquhil james earl of hume and stuart and others , whereby it was declared , that the earl being infeft in an annualrent of . pounds sterling out of the said barony , there was nineteen thousand pounds of bygons , of the said annualrent , at the date of the contract , in anno . therefore it was agreed , that the earl of hume should be put in possession of the said barony , for payment of the said annualrent , for terms subsequent , and for the nineteen thousand pounds made up of the bygone annualrents , fructibus non compurandis in sortem , and that the earl of hume , who last deceased , having assignation to the said contract from the heirs of line , of the said umquhil james earl of hume , recovered a decreet of possession upon the said contract , in anno . and entered in possession accordingly , and that the said annualrent of . pounds sterling , after the decease of the said james earl of hume did cease , being only provided to the heirs-male of his body , which failzing , &c. that therefore the . pounds sterling affecting the barony in the first place , and being free , did satisfie the nineteen thousand pounds , and freed the barony thereof . compearance being made for the earl of hume , and the creditors who had appryzed the barony of coldinghame . it was alleadged that the earls intromission was not to be ascribed to his decreet of possession in anno . because he had another anterior title in his person , viz. a former contract betwixt the deceast james earl of hume , and the heretors of coldinghame , by which he was allowed to possess , till he were payed of . pounds sterling , payable at four terms , for which , or any of the terms , he was to enjoy without an accompt fructibus non imputandis in sortem , of which contract there was a thousand pound sterling unpayed ▪ and upon which contract iames earl of hume had obtained possession , in anno . so that the late earl having right to both these contracts and decreets from the heirs of line , and having entred to the possession , without any porcess of removing , or mails and duties against the tennents , but the former possessors leaving the possession , the earl entered without opposition , and might ascribe his possession to either of these rights he pleased , and does most rationally ascribe the same to the first , especially seing he had both the rights from the same party , and was not introduced to the possession by them , more upon the one right than upon the other . it was answered for the pursuer , that albeit parties may make use of any right they have to defend their possession , without interverting the same , yet that must always be where the posterior right doth not derogat from the former , either as to right or possession . but here the second contract and decreet is inconsistent with , and derogatory to the former ; for the earl having power to enter by the first , till he were payed of one thousand pound sterling , resting of four , fructibus non computandis in sortem , taking a posterior right , whereby he was to enter for payment of nineteen thousand pounds , fructibus non computandis in sort●● , he derogat so far from the first , that he must possess primo loco by the last , seing the first is not reserved . dly , the late earl could only be understood to enter in possession by that right , or the former heretors , to relinquish the possession to him upon that right , which then had paratam executionem , and could then instantly have forced them to quite the possession ; but that was only the last contract , and last decreet , whereupon the late earl had obtained sentence in his own person , in anno . when he entered in possession : but as for the first contract and decreet of possession , it had not then paratam executionem , never being established in the persons of the heirs of line , much less in the person of the late earl , who had right from the heirs of line by assignation himself , being only heir-male . the lords found that the possession was only to be ascribed to the last decreet , which only had paratam executionem primo loco , without prejudice to the earl. if that right were exhausted , to defend himself with the first right in the next place . major bigger contra david cuninghame of dankeith . iuly . . major bigger having right to the teinds of wolmet from the earl of lauderdail , pursues david cunninghame of dankeith and iean dowglas , relict of wolmet , his spouse , for spuilzie of the teinds , restricted to wrongous intromission , and insists for the fifth of the rent . the defenders alleadge absolvitor , because they produce a valuation of the teinds of wolmet , obtained at the instance of umquhil patrick edmonstonn of wolmet , before the commission for valuation in anno . the pursuer answered that the defense ought to be repelled : first , because swintoun standing then in the right of these teinds , had raised reduction and improbation of this decreet of valuation , against iames edmonstoun , as heir to wolmet , and thereupon had obtained a decreet of certification , which is now produced . ly , by articles betwixt dankeith and major bigger produced dankeith compts for a greater duty than this valuation , and so passes therefrom , and homologats the majors right . dly , the decreet of valuation took never effect , there having never been payment made conform thereto , but tacks accepted by the same defenders , and duties payed by them of a greater quantity . the defender answered , that the certification could have no effect against the defenders , because it was only obtained against wolmets appearand heir , who had only the right of reversion , the wodsetter who was proprietar publickly infeft , and the said iames dowglas liferenter , by a publick infeftment , never being called , who do now produce the decreet of valuation quarrelled : and as to the articles . they can import no homologation , because the article anent the teind bears only such a sum , without relating to the fifth of the rent , or to the price of the valued bolls . the pursuer answered , that the valuation having been obtained at the instance of wolmet , and not of his wife , he might reduce the same by calling only wolmets heir , who had not only the reversion , but a back-tack , and he was obliged to call no other , especially seing they had no right to the teinds the defender answered , that the heretor has undoubtedly interest in the valuation , though they had no right to the teind , because it liquidats the teind , and liberats the stock of any further , and so hath the liferenter for the liferent right , especially she being publickly infeft : so that though the decreet was obtained at umquhil wolmets instance , yet he being denuded of the property by a publick infeftment of wodset with his wifes liferent , reserved therein , they could not be miskenned , and their right taken away by a process against wolmets appearand heir , who was denuded of the property , and who did now produce the decreet of valuation , and abode by it as a true deed. the lords sustained the defense upon the decreet of valuation , and found the certification could not take away the liferenters interest in the valuation , she not being called ; and found the articles to infer no homologation , but found the third member of the reply relevant , that tacks were taken by the defenders , and duty payed of a greater quantity since the valuation . lady lucie hamiltoun . contra bold of pitcon . eodem die . lady lucie hamiltoun insists in her reduction , before debated on the eight of iuly instant , against pitcon on this ground , that abbeit the disposition granted to him by george hay , the common debitor be anterior to the pursuers inhibition ; yet it must be reduced on this ground , that it is without any equivalent onerous cause , and that albeit in bear an onerous cause , yet that will not instruct the same , but it must be instucted otherwise than by pitcons own oath , because it is betwixt conjunct persons , two good-brothers ; and because it bears not only to be in favours of pitcon himself , but for the use and behave of the creditors , whose names were then blank , and thereupon are now excluded , as being filled up after the pursuers inhibition , so that the disposition being in so far fraudulent , and not totally granted to pitcon for himself , the proportion of his interest cannot be known , but by instructing the debts due to him , and for which he was ingaged the time of the disposition . it was answered for pitcon , that he was ready to instruct the debts scripto , and for some few to whom he had undertaken payment , at the time of the disposition he offered to produce their bonds , and to depone that he undertook payment of them , as said is , which is all that is required by the act of parliament anent fraudulent dispositions , whereby the defect of an onerous cause , is to be proven by the parties oath , who gets the disposition . the lords repelled the alleageance , and found that pitcon behoved to instruct the cause of the disposition , otherwise than by the saids bonds , and his own oath . it was alleadged for kelburn , another of the creditors , that he had right by an appryzing , proceeding upon sums anterior to the inhibition . it was replyed , that the appryzing was null . first , because the denunciation whereon it proceeded , was not at the mercat cross of the shire , but at the mercat cross of the regality ; in the english time , when regalities were supprest . dly , that the appryzing was led at glasgow ; and neither within the shire of air , where the lands ly , nor by dispensation at edinburgh : and albeit the letters bear a dispensation to appryz● at glasgow , and that the denunciation was made accordingly , for the parties to appear at glasgow , yet there was neither law nor custom for such a dispensation , and parties are not obliged to attend but at the head burgh of the shire , or in communia patria , at edinburgh . dly , the pursuer has also an appryzing , though posterior , yet preferable , because solemn and orderly according to the custom then being . it was answered , that albeit the custom under the usurper might excuse the want of denunciations at the head burghs of regalities , which were then supprest , where they were used at the head burgh of the shire according to the custom then , and so validats such appryzings ; yet this defender having according to the standing law of the land , denunced at the head burgh of the regality , the contrair unwarrantable custom cannot annul his appryzing , proceeding according to law. and as to the dispensation at glasgow , which was nearer the lands then edinburgh , whatsoever might have been said to the inconveniency of granting such a dispensation , yet being granted , it is valide , and was then frequent to grant such dispensations . the lords found that the pursuers apprizing being according to the ordinar custom for the time , at the head burgh of the shire upon denunciation , that it was more solemn and preferable , as to the manner of denunciation , than that which was upon denunciation at the head burgh of the regality , at that time . but the lords did not determine , whether such an appryzing would have been valide , if there had not been a more formall one ; nor whether the dispensation being granted at glasgow , was valide . margaret scrimzeor contra alexander wedderburn of kingennie . iuly . . umquhil major william scrimzeor having nominat alexander wedderburn of kingennie , and two others to be tutors to his daughter . she now pursues a tutor accompt , wherein this question arose , and was reported to the lords by the auditors , viz. the defunct having died in september . the tutor did not accept the nomination , or begin to act till the end of the year . in which time the tutor alleadged that a part of the pupils means perished , and became insolvent , and craved to be liberate thereof , on that ground in his discharge . it was alleadged for the pupil , that the tutor must be lyable from the time that he knew that he was nominat tutor , for albeit he might have abstained absolutely , yet once accepting the tutory by nomination of a testament , wherein a legacy was left to himself , he must compt as if he had accepted it at the first , for which there was adduced many citations of law. it was answered for the tutor , that in the roman law , tutors were obliged to accept so soon as they knew their nomination , unless they could free themselves by the excuses allowed in that law : but with us it is absolutely free to accept or refuse , without any excuse ; and it is only the acceptance that obliges , and so can have no effect ad preterita as to that which perished before acceptance , especially in this case , the defender being but one of three tutors nominate , he ought to have had a time to endeavour with the rest to accept , and his lying out was in such a time , in which judicatures did cease by war and troubles , the english after the battel of dumbar in september . being possest of edinburgh , and the publick records , there was no session keeped till the year , or . the lords found the tutor was not lyable for any thing that perished before his acceptance . the executors of walter hamiltoun contra the executors of andrew reid . iuly . . the executors of walter hamiltoun pursue the executors of andrew reid , for payment of a bond of . pounds sterling , and of a bond of eighteen pounds sterling , due by the said umquhil andrew reid , to the said umquhil walter hamiltoun . the defenders alleadged , that they ought to have allowance of fifty pounds sterling , payed to walter by iohn fleeming , by andrew reids order , and of sterling , payed to mckneich , upon a bill drawn by walter hamiltoun upon andrew reid , to be payed to mckneich , and for proving thereof , produced missive letters , written by walter hamiltoun to andrew reid , the one bearing , that fleeming had payed a part of the . pound , and he doubted not but that he would pay the rest : and the other bearing , that mckneich had got payment . it was answered for the pursuers , that the missive letters could not instruct a discharge , or abate those clear bonds , because they did relate to bills and orders , upon which payment was made , and except those bills and orders can be produced , the letters relating thereto , can have no effect , for it must be presumed , that the bills and orders have been retired by walter hamiltoun , as having been allowed in other bonds , which then have been delivered by vvalter to andrew reid , it being the ordinar course amongst merchants , to interchange bills and bonds , without any other discharge , neither do they take notice of their missives , relating to such bills or orders , nor can it be supposed they can remember the same . the auditors in this accompt , having taken the opinion of several knowing merchan's anent their customs in this point , they did all report in writ , and did all agree in this , that missive letters relating to bills , orders , or discharges , had no effect , unless the bills , orders , or discharges were produced , and that merchants neither did , nor could have notice of such missives to retire , or interchange the same ; they did also visit walter hamiltouns compt book , by which there appeared several other bonds and accompts betwixt the parties , beside these : and in which also , the sums contained in these letters , were set down as payment , in part of the other bonds and compts , whereby it appeared , that the bill and order mentioned in the letter , were interchanged with the former bonds . the lords found that the missive letters relating to the bill and order , had no effect , unless the bill and order were produced . hugh moncrief of tippermalloch contra magistrates of pearth . iuly . . hvgh moncrief of tippermalloch having incarcerate ogilbie of channaly in the tolbooth of pearth , from whence he having escaped ; he pursues the magistrates of pearth for payment of the debt , who alleadged absolvitor : first , because their tolbooth was sufficient , and the rebel had escaped vi majori , having broken the stone , in which the bolt of the tolbooth door entered , and forced the lock in the time of sermon , and that immediately after the rebel escaped out of the town , and was met with friends that were trysted there at the time of his escape . dly , they had laid out all wayes thereafter to search for him , and had at last found him in the tolbooth of edinburgh for the same debt , where he yet was in as good condition , as when he first escaped . the pursuer answered , that the rebel had escaped by the fault or neglect of the jaylour , for whom the town was answerable , in so far as they had given him the liberty of all the rooms in the tolbooth , and that when he escaped , he was left in the outmost room , and his brother son was permitted to abide within with him , and the catband on the outside of the tolbooth door was not put on and locked , which would have so secured the door , that nothing the prisoner could have done within , could have opened the same ; and that the tolbooth lock had a double and single cast , and when it was locked only with the single cast , the bolt might be thrust back , but when with the double cast , it had a strong backsprent , and could not be thrust back : and that at the time of the escape , the lock had but the single cast , so that the edge of the stone being broken off , there was access to press back the bolt . to the second it was answered , that the rebel having escaped through the town or their servants neglect , jus erat acquisitum to the pursuer , making them lyable , which could not be taken off by any incarceration thereafter , unless the magistrates had followed him in the very act of escape , and recovered him ; but now they have six moneths after his escape put him , not in the tolbooth of pearth , but in the tolbooth of edinburgh . the lords being unwilling to give either party the choose of witnesses for probation , had before answer , appointed either party to adduce witnesses anent the condition of the tolbooth , and the manner of the rebels escape , which being now advised . the lords found that by the most pregnent probation , it was proven that the catband used sometimes to be on in the day time , and sometimes not , and that prisoners for debt had the liberty in the day time of all the rooms of the tolbooth , the probation was very contrair , as to the breaking of the stone wherein the bolt entered , but it seemed access could not be had to the bolt without some breach of the stone . it was also proven the catband was not then on , and that the bolt when it got the double cast , could not be prest back , and could when it got the single cast ; and therefore the lords found that the magistrates proved not their first exception , that the rebel had escaped vi majori , without their fault or negligence , and found the second exception of puting him again in prison , not relevant . the lady halliburtoun contra the creditors of halliburtoun , iuly . . the lady halliburtoun being provided by her contract of marriage to the m●ins of halliburtoun , with the miln and pertinents , and her precept of seizing bearing warrand to infeft her in the mains and miln , by earth and stone of the land , and by the clap of the miln , her seising having the said precept ingros●ed , bears her by vertue thereof to be infeft by the earth and stone of the land , but mentions nothing of any symbol for the miln , or of any reason that seising was not taken of the miln● because it was demolished , the miln being thereafter built or re-edified , the creditors having apprized , did take infeftment of the mains by earth and stone , and of the miln by clap and happer , and now in a competition betwixt the lady and them anent the rents of the miln . it was alleadged for the creditors , that they ought to be preferred , because they were infeft in the miln , and the lady was never infeft therein , albeit her precept of seising buir an express warrand to infeft her therein by clap and happer . it was answered for the lady , that her infeftment of the land , with the miln and other pertinents , is anterior to the creditors , and must extend to the miln , albeit she took no special seising thereof , because there was no standing miln at the time of her seising , so that the miln being builded by her husband thereafter , solo cedit , and belongs to her as a pertinent , for though , where a miln is before infeftment , it cannot passe as a pertinent without a special seising , yet where it is only built thereafter , it accresces to any party infeft in the land , especially being infeft in the land , with the miln thereof . the lords preferred the lady , she proving the miln● the time of her contract and infeftment , was not at all built , or having been built was demolished . charles charters contra cornelius neilson , iuly . . charles charters and cornelius neilson , both having arrested their debitors money in the same hand , cornelius arrestment was upon the . of iune , and charles arrestment upon the , but cornelius arrestment was upon a bond , whereof the term of payment was not come , and the term of payment of charles his bond was come , both parties having their citation before the bailzies of edinburhg in one day , where cornelius alleadged preference , because his arrestment was prior , charles charters answered , that albeit his arrestment was four days posterior , yet it ought to be preferred , because the term of payment of cornelius debt was not come whereas charles his term being past , he has paratam executionem , this being ready to be advised by the bailzies . cornelius raises advocation , and the cause being advocat , the same debate was repeated before the lords , and cornelius added that now the term of payment of his sum was past , and alleadged that albeit his term were not come , his first arrestment is preferable , though the decreet thereupon could only be to pay after the term were past , and now his term being also past before sentence there needs no such limitation . it was answered , that it is not the arrestment that constitutes the right , but the sentence making forthcoming , and though ordinarly the first arrestment is preferred , yet oftimes posterior arrestments are preferred upon more timous or more orderly diligence , and the diligence done , by charters is done more orderly , because it was after the term , for if it were sustained , that arrestments made before the term of payment , should be preferred to these made after the term , creditors who has ready execution should be postponed to others , whose debts were payable after a liferent of . years time , but as the second arrester may poind his debitors goods , though arrested formerly by another , so may he crave sentence to make forthcoming to take present effect by poinding , and cannot be excluded by an other creditor , upon pretence of a prior arrestment , which cannot receive present execution ; and albeit the prior arresters term be now come , yet he ought not to be preferred , because he procured advocation of the cause , without any just reason , either of incompetency or iniquity , only to procure delay till his term were past , and therefore the cause being now advocat of consent , the sentence must now be of the same manner , as it would have been before the bailzies when the cause was advocat , at which time cornelius term of payment was not come . the lords found that the unwarrantable delay by the advocation should not prejudge charters , and that the case should be considered as it was the time that the advocation was raised , and preferred charles charters upon his posterior arrestment , in respect the term of payment of his debt was come , to the prior arrestment laid on upon a debt the term of payment whereof was not come , whereupon citation was used before the term came . the advocats having withdrawn from the house upon the oath prescribed by the regulation , nothing was called until the midle of december . murray of achtertire contra gray , december . . mvrray of achtertire having pursued a contravention against gray upon several deeds , whereof one was , that achtertire having procured liberty from a neighbour heretor to make a cast upon that heretors ground , wherein some little burns were gathered to a head , and thence were conveyed through achtertires own ground to his miln lade , and that gray had broken down that cast , whereby the burns were diverted● gray having compeared and proponed nothing , the libel was found relevant , and admitted to achtertires probation , who by several witnesses proved that the defender had broken down that cast , of whom some deponed simply , but two of them deponed thus , that gray had broken down the new cast , but that the burns gathered therein in the time of floods did water gray●s own lands ; and that by the new cast they were keeped in , and could not water the same , whence it arose to the lords consideration , whether that deed of contravention was sufficiently proven , or whether the testimonies of the witnesses , being qualified that the defender had done the deed , but in continuation of his former possession of the watering of the burns , whether respect ought to be had to that qualification , some thought not , because the fact , as it was libelled , was found relevant , and proven , and the qualification ought to have been proponed by way of defense , but it was found that the testimonies being so qualified , did not sufficiently prove to infer a contravention , for if the contravention had been proven by writ or oath , such a quality either in the writ or oath would hinder the same to prove sufficiently the contravention . but because the testimonies were not to be considered by the parties , the lords ordained the sentence to expresse the foresaid reason of it , that the pursuer before extract , might alleadge any thing thereanent he thought fit . nicol langtoun contra robert scot , decem. . . john graham of gillesby , having set a track of his lands of graystoneflat to nicol langtoun , and being at that time at the horn , robert scot obtains a gift of his escheat and liferent from annandale his superior , and thereupon obtains general and special declarator , decerning langtoun to pay the duties to him as donator . langtoun suspends , and raises reduction on this reason , that the gift was simulat to the behove of graham the rebel procured by his own means and moyen ; and it being answered by scot , that he being a lawful creditor of the rebels , might lawfully accept and make use of this gift for his own security , albeit the rebel had procured the same , and scot the donator having deponed anent the simulation of the gift , did acknowledge that the rebel had procured the gift , and that he had it blank in the donators name , and that he did fill up scots name , and delivered it to him . the lords found the oath to prove the simulation of the gift , and that it having been in the rebels own hands blank in the donators name , it was equivalent to an assignation from the rebel , and that scot accepting of it so from him , could not justly or bona fide make use of it , even for security of a just debt in prejudice of the tacks-man , who had before gotten his tack from the rebel . alison kello contra kinneir , ianuary . . alison kello as heir to her mother margaret nisbet , having pursued a reduction of an apprizing of the lands of paxtoun , led at the instance of mr. samuel hume , against the said margaret in anno . and assigned to mr. alexander kinneir in anno . upon this reason , that the said mr. alexander was satisfied by his intromission within the legal ; this pursuit , being against mr. alexander kinneirs son , who is minor , and being stopped upon his minority , quid minor non tenetur placitare de hereditate paterna . the lords did upon the pursuers petition , grant commission to examine witnesses upon the intromssion , to remain in retentis till the cause might be determined , in respect the witnesses might die in the mean time , which being reported , the lords remitted to an auditor to state the compt of the intromission according to the probation , that the stated accompt might remain in retentis . the defender being heard again before the lords , did alleadge that the accompt could not be stated upon this probation , but that there being yet no litiscontestation in the cause , neither can be , through the defenders minority , and this probation being but before answer to remain in retentis , and taken by commission , the defender not being present at the examination , and the matter being very ancient , fifty years agoe , the lords ought to give the defender the sole or conjunct probation of this alleadgeance , viz. that he offered him to prove , that during the years of the legal , the lands were possest by several persons , by dispositions or tacks , both under reversion , for certain sums of money , due by the said margaret nisbet , which rights were granted by her , and were now produced by the defender , which with the saids rights produced , is much more pregnant nor the pursuers probation , by some inconsiderable countrey people , without any adminicle in writ . it was answered for the pursuer , that the alleadgeance was no way relevant , being contrare to her libel , and founded super jure tertij , for this defender hath no interest in the wodset rights , nor doth any person appear for them , or own them , and if this were sustained , it would afford a current evasion in all kind of pursuits upon intromission , by offering still to prove that the defender did not , but that a third party did intromet , and therefore the lords have never sustained such a defense upon the defenders sole probation , and in no case have allowed a conjunct probation . it was answered , that in a matter so old , and where the sole probation of a thing of so great moment was to be by witnesses the lords ex officio might examine witnesses for either party , and have oft so done , especially the same ought to be done here , where the probation is by inconsiderable persons , and so suspect and exorbitant , proving ●●nneirs intromssion to be before he had any right , and the quantities to be much higher then the written tack of the lands produced . the lords found that they could not admit a probation for the defender , upon the possession of any third party , from whom he derived no right , but that upon the consideration alleadged , they would sustain no probation for the pursuer , but that which were clear and pregnant , and allowed the defender to give in any objections against the hability of the witnesses , yet having considered their testimonies , they found that they did not prove kinneirs intromission to be before his right , but that after his assignation he had removed and dispossessed margaret nisbet , and entered in the natural possession , and labouring himself , which is a fact more palpable then the lifting of duties from tennents . ianuary . . stair was admitted president of the session . drummond of rickartoun contra the feuars of bothkennel , eodem die . thomas drummond of rickartoun pursues a poinding of the ground against the tennents of the lands of bothkennel wherein the feuars alleadged no process , because the pursuer being pupil , he is not sufficiently authorized , the tutory produced being to his mother and uncle jointly , and his mother being dead , his uncle is no more tutor , the tutory being granted to them , and bearing expresly to them jointly . it was answered , that in tutories , curatories , executories , the death of one person doth not evacuate the office , but it accresces to the rest . the lords found that in respect of the tenor of the tutory , bearing to two conjunctim , the death of one evacuats the office ; nevertheless they declared that they would give a curator ad hanc litem , to authorize the pupil , but that none could uplift or discharge , till there were a new gift of tutory . mr. robert dickson contra iames graham , ianuary . master robert dickson advocat having granted bond to james graham , for a sum of money furnished to his brother upon an accompt , he raises reduction of the bond , as to a part thereof , upon fraud and circumvention , alleadging that the true cause of the bond was the causing answer his brother money , and that he had made an agreement before the hand , for so much the french floren ; but his brother having some moneys answered in vinnice , without any agreement before the hand ; when the parties came to accompt , iames graham being wholly trusted by the pursuer did give an accompt , and did affirm to the pursuer that the rate of answering money in vinnice was at that time so much dearer then the same truly was , if it had been only answered in france , wherein he now understands he was deceived , because it was equal or less value to furnish it in vinnice then france , and offered to prove the value of the money by witnesses , and the rest by oath . the defender answered , that it was lawful for him , being a merchant , to take what value for the floren he could agree , and that it would be of evil consequence , if bonds upon merchants accounts were reduceable , and they held as circumveeners , if they had taken a greater rate then the ordinar rate at that time , especially here the agreement of the rate being with a prudent party , and a lawyer . dly , the pursuer had homologat the bond by paying a part of it , and could not quarrel the rest . the lords found the reason of circumvention relevant , in these terms , that there being no agreement before the hand , wherein the merchant might take any rate he could get , but after the money was furnished , the defender had fraudulently affirmed to the pursuer , that the furnishing of the floren to vinnice , was more then the furnishing of it to france , although he knew the contrare at that time , but would not find the main error in that article of the rate to be relevant , and they repelled the homologation , because the pursuer might be deceived in one article , and not in the rest . captain ramsay contra william henderson , ianuary . . captain ramsay as assigney constitute by eupham scot , to a sum of two thousand merks , addebted by umquhile mr. charles henderson pursues his heir for payment , who alleadged absolvitor , because this debt being due originally by mr. charles henderson , and by the said eupham scot , who being vitious intromissatrix with his goods and geir , and having been assigned to this sum her self , she became creditrix , as assigney and debitrix as vitious intrometter , & confusione tollitur obligatio , and this pursuer having right from her , can be in no better case then she . it was answered , that vitious intromission was not competent by way of defense . the lords found that whatever might be said , if the vitious intrometter had been pursuing whether the defense might have been competent , yet found it not competent against the assigney , seing the cedent was not in campo , and probation behoved to be used against her . sandilands contra sandilands , ianuary . . the children of alexander sandilands pursue agnes sandilands their mother , for compt and payment of their fathers means , the tutory being now finished by her marriage ; in which accompt the mother gave up in defalcation the third of all moveable sums , as ships , merchant goods , houshold plinishing , &c. it was answered for the children , that she can have no part of the moveable sums , or moveable goods , because by the contract of marriage produced , she is provided to the annualrent of . merks which was her own tocher , and ten thousand pounds more of her husbands , which is her husbands , and was the whole fortune he then had ; and as to the conquest , it is provided that all sums of money , lands , annualrents , tacks and others whatsomever conquest during the marriage , shall be taken to the husband in liferent , and to the bairns in fee ; and because the wife is provided to be a bairn in her fathers house , what shall come that way is provided to be taken to the husband and wife , the longest liver of them two , and the bairns of the marriage , so that all the sums , and moveables in question , being conquest during the marriage , they are by the contract destinate to the husband in liferent , and the bairns in fee , and which provision is a debt upon the husband , his heirs and executors , so that the wife can have no third thereof . the defender answered , first , that her right of the third of the moveables being constitute by the law , cannot be taken away , but by an expresse clear deed renuncing the same , or accepting such provisions in satisfaction thereof , which being a clause now ordinarly adjected in contracts , and not put in this contract , albeit in the same the wifes tocher bears in full satisfaction , the clause can never be so interpret as to exclude her third , especially a contract of marriage being so favourable , that words are always understood● therein according to the meaning of parties , and here the meaning of the parties may be cleared , by this , that the defunct who was a very intelligent man , did declare that he would leave to his wife so much of his moveables in full satisfaction of her third , so that he thought she was not excluded , and if need beis the parties alive , writters and witnesses in the contract may be yet examined to clear the meaning of the clause . dly , albeit the clause could not exclude her from a third of money , which is expresse therein , yet not from a third of moveable goods and geir , which is not exprest , and albeit the clause bears , ( and others ) it can only be understood of rights due by a stated security , and the intent of the clause has only been to substitute the bairns of this marriage , heirs of the conquest , and to exclude the bairns of any other marriage , but did neither exclude the father , but that he might dispone on his moveables , albeit the clause expresseth him but liferenter thereof ; neither does it exclude the mother from the third thereof : and there was adduced a decision in the case of the lady oxenfoord , wherein , albeit by her contract of marriage she accepted certain lands in full satisfaction of her terce , and third of all lands , annualrents and others , yet that was not found to exclude her from a third of moveables , but only from a terce , or third of heretable rights . it was answered for the children , that their mother having consented by the contract of marriage , that all conquest during the marriage should be provided to their father in liferent , and to them in fee , she had excluded her self as clearly , and effectually , as if she had renunced her third thereof , or accepted of her jointer in full satisfaction ; neither is there a necessity that these words must always be used , nor is this alleadged as a consequential renunciation , but as an expresse obligation , or destination of the husband consented to by the wife , which must have its native effect , and so the children must be feears of the whole conquest , and therefore the wife cannot be feear of a third of it , and albeit moveable geir be not exprest , the generality ( others ) must necessarily comprehend them , being of the same nature with sums which are exprest , and may be moveable , and of less importance then they , and the case wholly differs from that of the lady oxenfoord , wherein nothing but heretable rights are exprest , and it is an unaccustomed clause amongst persons of that quality to exclude ladies from a third of moveables ; but here sums are exprest , and it is most ordinar for merchants to exclude their wives from their merchant goods , which is the greatest part of their estate , as to the meaning of the parties , clear clauses cannot be enervat upon that ground , and as for any thing exprest by the husband , it was on death-bed in a great fever whereof he died , and no testament followed . the lords found that the foresaid clause in the contract did exclude the relict from a terce of moveable sums , or moveable goods during the marriage , which could be understood , to be meaned to be put upon security at any time , but that it did not exclude her from a third of the houshold plenishing . charles casse contra sir robert cunningham , ianuary . . charles casse having sold to sir robert cunningham his right to the lands of achinhervy in his minority , pursues a reduction of the same disposition upon lesion , and condescends upon his lesion , thus , that being infeft for security of fourty thousand merks , and in an annualrent effeirrand thereto , whereof there were many bygone years annualrent resting , and yet he got only fourty thousand merks for all . the defender alleadged absolvitor , because the pursuer was satisfied of all his bygone annualrents , in so far as he having apprized for five years annualrents preceeding the apprizing , which was in anno . he had entered in possession by vertue of the said apprizing of the whole lands of achinhervie , and so is comptable therefore according to the rental , untill he cease to possesse the same , which will fully satisfie all his bygones , so that he will have no lesion dly , he had not only in his person the said apprizing , but the infeftment of annualrent , upon which he being preferred in a double poinding , and excluding other parties having also real rights , he is thereby obliged to do diligence , and be comptable not only for what he intrometted with , but for what he ought to have intrometted with . the pursuer answered , that he was content to compt for what he had intrometted with , but upon neither ground was he obliged to compt for any further , especially as to his apprizing , albeit law and custom had oblidged him to compt for the whole rental , till the apprizing were satisfied , yet he could not be comptable but for his intromission after he was satisfied● for then he had no title in his person , and it is clear that any intrometter without a title is only lyable for his intromission , and all parties having interest might have hindred him to have intrometted after he was satisfied ; and albeit a tennent or factor , after the expiring of the tack , or factory may be comptable for a full rental , yet that is because they have a title per tacitam relocationem , or tacitam commissionem ; but after the extinction of the apprizing then no title remains , and neither is he lyable as an annualrenter , even though he did exclude others to do any diligence , because all the effect of an annualrent can only be to distresse the ground , or poind the tennents for as much of their rent as is equivalent to the current annualrents , after which any other party having right may li●t the superplus , and in this case the annualrenter hath not been preferred as to any bygone rents , but only in timecoming , and for his current annualrents , and the bygones are appointed to be brought in accompt , which was never determined . the defender answered , that it were against all reason that an apprizer after he is satisfied , should be in better condition then before he is satisfied , and so as long as he meddles , he must compt by the rental , and it is his proper part , who knows when he is satisfied , to relinquish the possession , which other parties cannot know , till by a long process of compt and reckoning it be determined , and it were most absurd that in the mean time he should continue in possession , and though the rents did in a great part perish , he should not be comptable therefore , but only for what he actually lifted . the lords found the pursuer as apprizer comptable according to the rental , not only for intromission , but omission , both till the apprizing be satisfied , and thereafter for all years of which he lifted any part , but found not the annualrenter lyable for diligence , albeit he did exclude others , but the case came not to be determined if the annualrenter had by a personal action insisted for more years annualrent past , to be preferred to the whole rents , till these bygones were satisfied , that not being the case here in question . in this cause it had been formerly alleadged that the pursuer after his majority , had received a part of the price of the lands , in so far as having in his minority granted a commission to mr. iohn smith , one of his curators , to uplift all sums due to him , and he having uplifted a part of the price of the land from the defender , and bonds for the rest ; the pursuer after his majority , had by his discharge produced , received from his curator and factor the said money and bonds , and discharged him thereof , and acknowledged that he and the remainent curators had acted faithfully in all their intromissions , whereby the pursuer hath approven , and homologat the disposition of the land , made by him and his curators , which he now quarrels . the pursuer answered , first , that the defense is not relevant , for homologation being a presumed or conjectured consent , not by word or writ , but by deeds done , which import the adhering to the disposition quarrelled , it cannot be inferred by any deeds , but such as can have no other intent or purpose consistent with the rejecting , or disapproving the disposition , but here the receiving of the money and bonds from the factor hath a consistency and congruity with this reduction , for the pursuer knowing that he could not be restored against his disposition , unless he did restore what was received by his warrand , might justly take up the same from his factor , that he might be in capacity to consign the same at the bar , as if a minor having bought lands to his lesion , and having wodset a part of the same , he might after his majority redeem the lands wodset by himself , which although it behoved to proceed upon the disposition as his title , yet it being a deed necessar to purge the wodset , and repone the disponer to his own land free thereof , it would never importan homologation , or if he had in his minority excambed lands , and wodset a part of the lands he acquired thereby , the redeeming or purging of the wodset after his majority would import no homologation , so neither can any deed import homologation , which upon any account can be consistent with the annulling of the right quarrelled upon minority . dly , this dicharge does bear expresly relation to mr. iohn smiths accompt of intromission subscribed at the same time , and bears that the discharge should be alse sufficient as if the accompt were insert , ita est in the charge of the accompt , wherein only mention is made of the sums payed by the defender , there is an express reservation , that the accompt shall be but prejudice to the pursuer to insist in his reduction of the disposition , and as to that clause in the discharge , that the curators and factor had done faithfully ▪ it relates only to their intromission , and not to their omission , and albeit it had born simply , that they had acted faithfully , that can only import that they had not acted fraudulently , and that they had done for the minor what they conceived best : but does not import that they had acted providently and skilfully , so that the minor may still reduce their deed. the defender answered , that his defence was most relevant , being founded upon the pursuers consent , after his majority : for consent may be adhibite , not only by word or writ , but by any deed importing the consent , as if a minor giving a bond in his minority , should pay a terms annualrent thereof after his majority : or if a minor intrometting with his fathers moveable heirship , or rents of his lands in his minority , should continue to intromet for one term , or one point further after his majority , in neither case would he be restored ▪ and yet such deeds might be consistent , and might be done to other intents , as if his payment of the annualrent did bear , le●t before his reduction he might be distressed , or that he continued his possession , lest the rents or goods might perish to the dammage of his party : yea , though these were expresly mentioned in his discharge ; and his reduction were reserved , it would be protestatio contraria facto , and would not free him : so neither can the reservation in this accompt , though it were repeated in the discharge , be sufficient ; especially seing he might have caused the factor consign the money in the clerks hands , that it might be restored at the discussing of the reduction : so that inconsistent reservations or protestations , operate nothing . dly , the charge of this accompt , wherein only the reservation is mentioned , is a louse sheet of paper , subscribed with another hand than the discharge , and has neither date nor witnesses , and so cannot instruct that this is the very accompt mentioned in the discharge . the lords did not determine the point of homologation , but before answer ordained the curators and witnesses in the accompt to be examined upon oath , whether the charge produced be the same that was subscribed , abinitio , bearing the said reservation , but they inclined that the reservation would take off the homologation , and would not be void , as contraria facto . keir contra nicolson . ianuary . . john keir as assigney by the earl of mar to some feu-duties , pursues a poinding of the ground against nicolson of tillicutrie , who alleadged no process , because the earl of mar his cedent , had no right to thir feu-duties , which were due in his fathers lifetime , whose liferent was reserved ●whereupon compearance was made for scotscraig's heir , who was donator to the old earl of mar's escheat and liferent , and concurred . the defender answered , that the concourse could not be effectual , because their bygone feu-duties being moveable , belonged to scotscraigs executor , and not to his heir : and though the concurrer was both heir and executor , yet thir bygones belonging to scotscraig as donator , being for years wherein scotscraig lived , they are moveable , and ought to have been contained in the inventar of his testament , as they are not . it was answered , that a liferent-escheat having tractum futuri temporis , belongs not to the executor , even as to the bygones , before the donators death , unless they had been liquide and established in his life ; but the gift and all following thereon belongs to his heir . the lords found that the bygones of the liferent preceeding the donators death , did belong to his executor , albeit in his life he had obtained no sentence therefore . dowglas of kelhead contra the vassals of the barony of kelhead and others . ianuary . . the earl of queensberry being superiour to certain vassals of the barony of kelhead , who did dispone the feu duties and whole casualities of the superiority to kelhead his brother , to the effect that kelhead might be his immediat vassal , and that the feuars might hold of kelhead , whereupon kelhead was infeft , holding of queensberry , and thereupon pursues a declarator of non-entry , both generally and specially in the said summons . it was alleadged for the defenders absolvitor , because they were not the pursuers vassals , for albeit he was infeft holding of queensberry , to the effect he might become their superiour , yet that infeftment was null , because no superiour could interpose any person betwixt him and his immediate vassals : likeas the non-entry could only infer the feu duty till decreet or declarator were pronunced , which used to be per se , but here both special and general declarator being joynt , could only conclude the feu duties for bygones till litiscontestation . the lords found that albeit the pursuers title upon his infeftment , by which he was interposed , was invalide ; yet seing it contained a disposition and assignation to the feu duties , and casualities of the superiority , that the pursuer had sufficient title thereby , as donator by queensberry the superiour , and found that the non-entry carryed only the feu duty before the citation , but after the citation , the whole profites , seing the vassals did not upon the citation , obtain themselves infeft by queensberry . laird of milntoun contra lady milntoun . ianuary . . john maxwel younger of calderwood having married the lady miltoun sir iohn whitefoord of milntoun her stepson acquired from him his right to her joynture of milntoun , as her h●sband jure mariti , thereafter iohn maxwel having gone out of the countrey , the lady pursues a divorce against him , upon adultery committed with margaret davidson , in which process ▪ milntoun as having interest in the joynture , which would return to the lady from him upon the divorce , craves to be admitted in the process , but was not admitted , so the process proceeded , and the decreet of divorce pronunced : whereupon milntoun raises reduction of the commissars decreet upon iniquity , because he was unjustly excluded from defending , and if he had been admitted , he would have proponed pertinent interrogators to the witnesses which were omitted , and would have proponed objections against their hability , which would have excluded them from being witnesses . in this process the lords ordained the witnesses to be re-examined upon all such pertinent interrogators as miltoun should propose , and they being re-examined , did acknowledge that the lady prompted them how to depone , as to their knowledge of margaret davidson , and gave them tokens of her by her cloaths and stature , and that she promised them a good deed to depone . in which process the lords found that the witnesses upon re-examination , after sentence , could not by their posterior deposition , derogat from the first deposition , and therefore assoilzied from the reduction , reserving and allowing to milntoun his action of reprobator , wherein he now insists on these grounds , first , that the witnesses , paterson and clerk who only proved , were viles personae , having no means worth the kings unlaw . dly , that they were persons infamous , and of very evil repute , and in their examination before , they had prevaricat and contradicted themselves . dly , that the lady had suborned and corrupted the witnesses , by prompting and instructing them how to depone . thly , that she had corrupted the witnesses before their testimonies before the commissars , by giving some of them twenty dollers to bear witness , which is far above their ordinar allowance of witnesses for their charges . it was answered for the defender , first , no objection was now competent against the hability or sufficiency of the witnesses , because objections were given in against them by the pursuer , and they have deponed thereanent , so that albeit reprobators be competent , where the pursuer cannot instantly verifie his objections against the witnesses , and protests for reprobator ; yet if either he forbear to protest , or refer his objections to the witnesses oaths , he can never be heard by way of reprobator against them : and here this pursuer neither protested for reprobators at the first , nor at the re-examination , but upon his own desire , they were purged , and did depone anent these objections . dly , having made use of the witnesses upon the said interrogators , he has approven them , and cannot quarrel their testimonies . and as to the particular objection of their poverty , they have already deponed that they are worth the kings unlaw , and it being a negative , which is not presumed that persons are so poor , it cannot be proven by witnesses , and though it could , and were a sufficient objection ordinarly , yet in a crime of this nature , which is so clandestine , objections of poverty would not be sufficient , and as to that member of the reprobator , that they are persons of evil fame , it is not relevant , unless they were infamous , infamia juris , either by such deeds , as the law declares to infer infamy , or by a sentence of a judge , declaring them infamous . as to that member of the reprobator upon subornation , it is not relevant , unless it were libelled , that the witnesses undertook so to depone , or that they had deponed accordingly , for the witnesses might be far above exception , as no offer of subornation could canvel the faith of their testimony , and so infer a blemish upon them . and it was answered to all the members of the reprobator that they are not proven by witnesses , but by oath of party , otherwayes such processes could never end , for if witnesses were receiveable to prove the inhability or corruption of the first witnesses in the principal cause , then the testimonies of the witnesses in the reprobator might be canvelled by witnesses in a second reprobator , against the witnesses in the first reprobator , and so reprobator upon reprobator without end . it was answered for the pursuer to the first , that he cannot be excluded from reprobators against the commissars decreet , though he protested not therefore , in respect it is evident by the decreet , that he was not admitted to compear , but he did protest in the reduction before the lords , who have expresly allowed him his reprobators , neither doth the taking of the oaths of the witnesses de initialibus testimoniorum , exclude reprobators , albeit the party desire them to be re-examined upon oath thereupon , for that oath is not an oath upon the parties reference , as stating the sole probation thereupon , but it is a judicial oath , & partis judicis , for the judge may , and ought so to examine the witnesses , whether the party require or not , so that the party refers not these points to the witnesses , but requires it of the judges as a part of his office. and as to these points , every witness is testis singularis , for he depones only his own hability , and so there is no probation thereby , except in so far as may militate against the witnesse himself , so that contrary probation may well be admitted against such an oath , as well as against executors upon super-intromission , tutors or curators upon negligence or malversation : and if it were otherwise , reprobators could be sustained in no case against decreets of the lords , because of course , they take the parties oath to purge themselves of partial counsel , and of corruption by promise , or receiving of good deed , &c. neither doth the pursuers making use of the testimonies of thir witnesses in their re-examination , import his approbation of their hability and integrity , for parties may give interrogators to witnesses not adduced by themselves . to the second , this process being of so great importance , all lawful objections against the witnesses are competent , and there is none more ordinar than that they are pauperes , not worth the kings unlaw , and so lyable to great temptation of corruption . and as to the attempt of suborning , or brybing the witnesses , it is most relevant and express in law l. . ff . de re judicata , bearing testibus pecunia corruptis conspiratione adversariorum , &c. which being pessimi exempli in odium corrumpentis , not only are the witnesses punishable , but the sentence annullable , which is confirmed toto titulo codicis si ex falsis instrumentis , and that without regard whether they undertake or depone falsly or not , as is observed by bartol l. in princ . ff . de falsis & adict l. divans . de re judicata num. . and covaruvias in repet . c. quamvis fol. . col. . which he attests to be the common opinion ; and which is likewise attested by boss. in tit . de falsis num . . and by will. . com . opin . fol. . and especially by hartman tit . . de testibus observ . . where he doth expresly maintain , that it is not so much a lawful to instruct a witness , excitandae memoriae causa non si subito deprehendatur haesitet & titubet , in respect any such instruction is subornationis velamentum : and which opinion hath been likewise confirmed by the decisions of the most eminent and famous courts of justice , as may appear per capell . tholos . deces . . and others . and which is likewise the opinion of clarus , viz. that the foresaid acts of corruption are disjunctive and separatim relevant , as may appear by fassum . num. , & . & qu●st . . de exceptionibus quae contra testes opponi possunt . and to the last alleadgeance against the probation by witnesses , that it would infer an endless course of reprobators : it was answered , that by the same reason , reductions might be taken away ; because the decreet reductive might be reduced , and that decreet by another reduction without end : but reprobators have every where been sustained , and no such inconvenience ever found ; neither can it be imagined , that every pursuer of a reprobator will prevail , which this infinite progress must suppose , only it may infer , that witnesses in reprobators ought to be more unquestionable , than the witnesses called in question thereby . the lords found that reprobators were competent , albeit the witnesses upon oath deponed upon their own hability , at the desire of the party : and albeit the party protested not for reprobators , seing he was not admitted to compear , and found that member of the reprobators upon the poverty not relevant in this clandestine crime : neither that member upon their alleadged infamy , unless it were alleadged that they were infamous , infamia juris , by any deed which the law expresly declares to infer infamy , or were declared infamous sententia judicis : and found that member of the reprobators upon instructing or prompting the witnesses relevant , without necessity to alleadge the witnesses undertaking or deponing conform , and that in odium corrumpenti● , without inferring any blemish upon the witnesses so prompted , who consented not , or swore falsly : and found that member relevant of corrupting the witnesses , by giving or promising of good deed , more than might be suitable to the witnesses for their charges : but as to the manner of probation by oath or witnesses , the lords superceeded to give answer , till a practique alleadged upon were produced . pringle contra pringle . february ▪ . pringle of soutray having only three daughters , does in his testament done upon death-bed , dispone his whole lands to his eldest daughter , and constitute her universal legator ▪ with this provision , that she pay . merks to the other two daughters , the disposition as to the lands being reduced , as being in testament , and on death-bed , the universal legacy was sustained , to give the eldest daughter the right of the deads part , whereupon it was alleadged for the other two daughters , that if the eldest insisted for the universal legacy , she behoved to have it with the burden of the ten thousand merks , which was a burden both upon the land and moveables , and doth no more relate to the one than the other , so that albeit the right of the land be evicted , the moveables remains burdened , as if a father should dispone certain lands to a son , with the burden of portions to the other children , albeit a part of the lands were evicted , the portions would be wholly due without abatement . it was answered for the eldest daughter , that in latter wills , the mind of the defunct is chiefly regarded , not only as to what is exprest , but to what is implyed or presumed , and here it is evident , that the mind of the defunct was , that his two younger daughters should only have ten thousand merks in satisfaction to all rights of lands or moveables : now seing they have gotten two third parts of the land , which is much better than ten thousand merks . it cannot be thought to be his meaning to give them any share of his moveables also , but that the half thereof , which was at his disposal , should belong to the eldest daughter without burden . which the lords found relevant , and declared the same to belong to the eldest daughter , without burden of the provisions . alexander ferguson contra parochioners of kingarth . eodem die . alexander ferguson being one of the prebands of the chapel-royal , by his majesties presentation and collation , pursues the heretors of the paroch of kingarth for the teinds , as being annexed to the chappel-royal , as appears by the books of assumption , and three presentations from the king produced . compearance is made for the minister of rothsay , who alleadged that he had presentation to the kirk of kingarth from the king , and collation thereupon , and so had best right to the teinds of his paroch , because de jure communi decima debentur p●rocho , and as for the pursuer , he shews no right by any mortification of these teinds to the chappel-royal ; neither can he make it appear , that ever he , or any other prebander were in possession civil or natural thereof . dly , albeit the prebanders had had a right , the same is now taken off by prescription , because it is offered to be proven , that the minister hath been . years in peaceable possession , before the pursuers citation , which not only takes away the bygones , but the whole right , and establishes the same in the ministers person . the lords found the books of assumption , and the three presentations from the king , sufficient to instruct the pursuers title , and found the defense of prescription relevant , as to the bygones before the citation , but not to establish the right in the minister , or to take it from the chappel-royal , as to years after the citation , and in time coming , in respect of the act of parliament , providing that the kings interest shall not be prejudged by the neglect of his officers . blair of bagillo contra blair of denhead . february . . blair of bagillo having granted bond to blair of denhead , he did assign the same to guthrie of collistoun . bagilio raised suspension against collistoun as assigney , in anno . and now collistoun insists in a transferring of the old suspension and decreet suspended against bagillo's heirs , to the effect the cautioner in the suspension may be reached . it was alleadged no transferrence , because bagillo ●s father obtained a general discharge from denhead , before any intimation upon collistouns assignation ; and albeit the discharge be posterior to the assignation produced , it must liberat the debitor , who was not obliged to know the assigney before intimation . it was answered , that the debitor might pay to the cedent bona fide , before intimation : yet a discharge obtained from the cedent after assignation , would not liberate against the assigney , though it were before intimation : and this general discharge bears no onerous cause . dly , this general discharge being only of all processes and debts betwixt bagillo and denhead , at that time , it cannot extend to this sum assigned by denhead long before , and who could not know whether the assigney had intimate or not , and cannot be thought contrair the warrandice of his own assignation , to have discharged the sum assigned , especially seing there was an assignation long before , which was lost , and the intimation thereof yet remains ▪ and this second assignation bears to have been made in respect of the losse of the former , and yet it is also before this general discharge . the lords found the general discharge of the cedent could not take away this sum , formerly assigned to him , though not intimat , unlesse it were proven that payment or satisfaction was truely made for this sum. alexander wishart contra elizabeth arthure . february . . umquhil mr. william arthure being infeft in an annualrent out of some tenements in edinburgh , and having entered in possession , by lifting of mails and duties , some of his discharges being produced . alexander wishart as now having right to the tenements , pursues a declarator against elizabeth arthure , only daughter to mr. william , for declaring that the sum whereupon the annualrent was constitute , was satisfied by intromission with the mails and duties of the tenements . the defender alleadged that this was only probable scripto vel juramento , and not by witnesses , for an annualrenter having no title to possess , out-put and in-put tennents , cannot be presumed to uplift more than his annualrent , especially seing his discharges produced for many years , are far within his annualrent , and it were of dangerous consequence , if witnesses , who cannot prove an hundreth pounds , were admitted , not only to prove intromission with the rents , so far as might extend to the annualrent , but so much more as might satisfie the principal , and thereby take away an infeftment : for albeit that probation has been sustained to extinguish appryzings , which are rigorous rights , yet not to take away infeftments of annualrent . it was answered , that albeit witnesses are not admitted where writ may , and uses to be adhibite , in odium negligentis , who neglected to take writ : yet this is no such case ; and therefore in all such , witnesses are admitted : for if the pursuer had insisted against the defender , for intrometting with his mails and duties , of whatever quantity and time within prescription , witnesses would have been admitted : the defender could only have excepted upon his annualrent , which would have been sustained , pro tanto ; but the pursuer would have been admitted to prove further intromission , which being by vertue of his security for a sum , and in his hand would compense and extinguish that sum , which is all that is here craved , and whereupon the witnesses are already adduced . the lords sustained the probation by witnesses , for the whole intromission , to be imputed in satisfaction of the principal sum and annualrents . lowrie contra gibson . eodem die . lowrie being superiour to gibson in a feu , pursued him before the sheriff , for annulling his feu , for not payment of the feu-duty , and obtained decreet against him , and thereafter pursued him before the lords for mails and duties , wherein compearance being made , gibson made an offer , that if lowrie would free him of bygones , and pay him . merks , he and his authour would dispone their whole right , which being accepted by the superiour , decreet was pronunced against gibson , to denude himself upon payment : shortly thereafter , gibson drew up a disposition , and subscribed it in the terms of the decreet , and offered it to lowrie , who refused it , because his author had not subscribed . thereafter gibson suspended upon obedience , and consigned the disposition which was never discussed ; but gibson continued in possession still from the decreet , which was in anno . now gibson raises a reduction of the sheriffs decreet of declarator , annulling his feu , because the sheriff was not a competent judge to such processes , and because gibson had offered the feu-duty , which was refused , so that the not payment was not through his fault : and also insisted for reduction of the lords decreet , as built upon the sheriffs decreet , and falling in consequence therewith . and as for any offer or consent , the assertion of a clerk could not instruct the same , unless it had been warranted by the parties subscription . it was answered , that gibson having homologate the decreet , by an offer of the disposition , conform thereto , which was only refused , because it wanted the authors subscription ; and having suspended upon obedience , he cannot now object , either against the decreets or consent . it was answered , that so long as the decreets of the sheriff and the lords were standing , gibson might be compelled thereby to consign the said disposition ; but that is only on these terms , to be given up if the lords saw cause ; and hinders not gibson to alleadge , why it should not be given up . and as to the offer to deliver the disposition , the instrument of the nottar could not instruct the same , but only gibson's own oath . the lords found that albeit the consignation for the suspension would not have prejudged gibson , yet the simple offer to deliver the disposition , did so homologate the decreets and consent , that he could not quarrel the same ; but they found it not proven by the instrument , without the oaths of the witnesses insert in the instrument : and in regard that lowrie had letten the matterly over for more than twenty years , they declared that the agreement should only take effect from this time , and that gibson should not be comptable for the bygone duties . ninian home contra francis scot. february . . ninian hume having charged francis scot upon a bond of . merks ; he suspends on this reason , that both parties having referred the matter verbally to an arbiter , he had determined . merks to be payed for all , whereupon hume had pursued . it was answered , that verbal submissions and decreets arbitral are not binding , but either party may resile before writ be adhibite . the lords found the reason was relevant to be proven thus , by the chargers oath that he did submit ; and by the arbiters oaths , that they did accordingly determine . lowrie of blackwood contra sir john drummond . eodem die . sir robert drummond of meidhope having disponed his lands of scotstoun to sir iohn drummond , for love and favour , and for better incouraging sir iohn to pay his debt , as the disposition bears , and under reversion of a rosenoble to sir robert in his own life . mr. john drummond sir roberts appearand heir , grants a bond to lowrie of blackwood , whereupon he adjudges the land from the appearand heir , and pursues a reduction of the disposition , as done on death-bed . in which pursuit witnesses were appointed to be examined , hinc inde , concerning sir roberts condition , when he made the disposition , and thereafter till his death ; the sum of the probation was , that before the disposition sir robert had contracted an apoplexie , whereby he remained senseless for a time , but by cure there remained a palsie in his tongue , and a vertigo in his head , which continued till his death , and about a year after that the sickness affected his brain , so that he lost the remembrance of names of things , and most of the witnesses depones , that he was not found thereafter in his judgement , but that he keeped on his cloathes , and was not affixed to his bed , and went frequently and walked in his garden , and to the court-hill , half a pair of butts off ; and one of the witnesses deponed , that he came to his house alone , a quarter of a mile off : but that he went never to the kirk nor mercat , nor any publick place : whereupon it was alleadged for the defender , that the defunct continued in health at and after the disposition , and that his going so frequently abroad , was equivalent to his going to kirk and mercat , which was sufficient to eleid the reason of death-bed , and that the palsie being but in his tongue , albeit he misnamed things , it did not import his being on death-bed , especially seing he disponed for payment of his debt , equivalent to the worth of the land , his disposition being to a friend of his name , who relieved him of his debt , his heir not being his son , nor descendent , and uncapable to relieve him of his debt . it was answered , that the contracting of his sickness being sufficiently proven to be before this disposition , and the continuance thereof to affect his brain , in that case nothing could purge the same , but his going to kirk and mercat , which were the acts required in law , and could not be supplied by his going privatly abroad , and not to any popular publick meeting ; and as to his debts they could not validat the disposition by exception , though the defender might by way of action affect therewith the estate , or burden the heir , on whose bond it was adjudged , especially seing the disposition buir for love and favour , and redeemable for a rose-noble . the lords found the reason of death-bed sufficiently proven , and that his private going abroad ( though unsupported ) was not equivalent to going abroad to kirk and mercat , or publick meeting , where the disease continued to affect the brain ; but they found the paying of debts equivalent to the worth of the land relevant by way of exception , in regard the disposition buir to be for payment of his debt . mr. iohn wat contra campbel of kilpont , feb. . . sir archibald campbel being debitor to adam wat in a sum of money , he did thereafter contract his son mr. archibald in marriage with thomas moodies daughter , and by the contract thomas moodie acknowledges the receipt of fourty thousand pound from sir archibald , and is obliged for twenty thousand merks of tocher , all to be imployed for mr. archibald in fee ; but thomas moodies daughter dying , and leaving no children behind her , thomas moodie did restore the sums , and there is a discharge granted by sir archibald and his spouse , and mr. archibald bearing them to have received the sums , and to have discharged the same ; whereupon mr. iohn wat as heir to adam , pursues mr. archibald to pay him the sum due to his father , upon this ground , that he having received fourty thousand pounds of his fathers means , after contracting of the debt , ought to make so much of it forthcoming as will pay the pursuer ; which action was founded upon the act of parliament , . whereby all deeds done by debitors in prejudice of their creditors , without a cause onerous are declared null , and all parties that by vertue thereof intromets , are declared lyable to restore to the creditors . it was answered for the defender ; first , that the libel was not relevant , there being no part of the act of parliament . that incapacitats debitors to gift or dispone sums of money , or moveables , especially if the disponer at that time be not insolvent , but have a sufficient estate for satisfying his debt ; and it is offered to be proven , that sir archibald had at the time of this contract a sufficient estate for all his debt , in the hands of the earl of argile and glenorchie ; and albeit by the superveening forefaulture , argiles debt be insufficient , it was a good debt the time of the contract , so that there can be no ground to make a child lyable to restore a portion given by a father who was solvent . dly , albeit the defender could be lyable , if it were clear that he had the sum foresaid by his father yet remaining to the fore , yet if it had been lost or spent before the intenting of this cause , he or any subsequent estate acquired aliunde is not lyable , ita est anything he has is a wodset of fourty thousand merks on kilpont , and the two tochers he had viz. twenty thousand merks from thomas moodie , and ten thousand merks of legacy , and twelve thousand merk of tocher with sir william gray's daughter , was sufficient to acquire the right of kilpont , without any thing from his father . dly , the discharge produced cannot instruct that mr. archibald received the money , because it bears indefinitly that payment was made to sir archibald and his spouse , and to mr. archibald , and all of them do discharge . the pursuer answered , that the libel was very relevant , for whatsoever might be alleadged of bairns portions by a solvent father , yet this being so considerable a fortune provided to the only son , and appearand heir , if it did not make him lyable to satisfie the fathers debt pro tanto , it were a patent way to defraud all creditors and elude the act of parliament , for the father might sell his estate , and provide the moneys in this manner ; and as to the discharge , albeit it be indefinite , yet it must be presumed that mr. archibald received the sums , because they belong to him in fee by the contract of marriage . the lords found the libel relevant , and that the discharge produced did presume that mr. archibald the feear did receive the money , but seing the probation was not expresse , but presumptive , they allowed mr. archibald to condescend upon what evidences he could give , that the money or surety thereof was delivered to his father . iohn will contra the town of kirkaldy , feb. . . john will pursues the magistrats of kirkaldy for paying the debt of a person incarcerat in their tolbooth , who was letten escape by them . it was alleadged for the town , that the person incarcerat had escaped vi majore , and that they had not failed in their duty , having had a sufficient tolbooth , having four doors , and the inmost an iron door , and that all being locked ; the person incarcerat having gotten secretly conveyed in some mason or wrights tools , had in the night broken all the locks , and escaped . it was answered , that the defense was not relevant , neither had the magistrats done their duty and diligence , for they ought to have had chains , and cat-bands upon the utter-sides of the doors , with locks thereon , unto which the incarcerat person could not reach ; and it was alike how many doors they had upon the tolbooth , with their locks inward , for the same means that would break up one , would break up twenty , and if such a pretence should liberat the magistrats , it were an easie way to elide all captions , and let all persons for debt free . it was answered for the town , that the having of cat-bands without , closed and locked , was not the custom of their tolbooth , who past all memory did never lock the outward chains but upon malefactors , and such is the custom of edinburgh , and other burghs of scotland . the lords having before answer , ordained witnesses to be examined on both parts , anent the condition of the tolbooth , and finding thereby that there was no cat-bands or outward chains locked when this prisoner escaped , they found the magistrats had not done their duty , and so decerned against them . alexander naper contra the earl of eglintoun , feb. . . there was a bond granted by the laird of minto as principal , lugtoun iames creichtoun , and the earl of eglintoun cautioners , in anno . to adam naper and his spouse in conjunct fee ; alexander naper as heir to his father , pursues this earl of eglintoun as heir to his father for payment , who alleadged absolvitor , because minto having disponed his estate to his son , under express provision to pay the debt , the same was satisfied by minto younger , and was retired lying by him a long time , or by robert vrie , who had the trust of minto's affairs and writs , and minto younger being lapsus bonis , and robert vrie being dead , the pursuer had either practised with minto upon his necessity , or upon robert vries friends to give him back the bond , and for evidence that the bond has been satisfied and retired . first , it had lyen dormant above this thirty years , without either payment of annualrent , or any diligence . dly , the late earl of eglintoun being forefault by the usurpers , his creditors were appointed to give in their claims , or else to be excluded , and yet no claim was given in for this debt , and therefore craved that witnesses might be examined ex ●fficio for proving of the points foresaid . the pursuer answered , that it was an uncontroverted principle in our law , that witnesses could not prove payment of any debt due by writ , nor take the same away ; and as to the pretences adduced by the defender , they import nothing , for the delay of seeking payment or claiming the sum , was because the said adam naper was with montrose in the war , and his heir remained a minor , and his wife was married to another husband . the defender answered , that the wife was liferenter of the sum , and she and her second husband would certainly have sought her annualrent , or claimed the sum , which takes off the excuse of the pursuers minority ; and albeit writ be not taken away by witnesses ordinarly , yet where the matter is so ancient , and the evidences so pregnant , the lords uses not to refuse to examine witnesses ex officio . the lords ex officio ordained witnesses to be examined anent the being of the bond in the custody of minto , or his doers , being a matter of fact , but would not examine them anent the payment made thereof . george bain contra the bailzies of culrosse , eodem die . george bain pursues the bailzies of culrosse for payment of the debt of a rebel , whom they had suffered to go free up and down their streets , whereupon he had taken instruments against them , and protested that they should be lyable for the debt ; seing squalor carceris is justly introduced against debitors that will not pay their debt , and the magistrats of burghs may not take it off in whole or in part , and produced a practique observed by durie upon the . of march . smith against the bailzies of elgine , where the prisoner being suffered to walk freely upon the streets , till he obtained a charge to set to liberty , the magistrates were found lyable . the defender alleadged absolvitor , because he offers to prove that this prisoner's going out was necessary , viz. he being a person altogether indigent , was permitted sometimes to go and mendicat his bread , and once to go to the burial of a child of his own , and immediatly thereafter ; the pursuers having taken instruments , the rebel was put in waird , and continued there till he died. which the lords found relevant to liberat the burgh . apilgirth contra locarbie . eodem die . in a compt and reckoning at the instance of apilgirth , for declaring two apprizings led by lockerbie satisfied , this query was moved by the auditor , whether a sum consigned by umquhile apilgirth , for redeeming a part of the lands wodset to lockerbie , conform to the reversion in the wodset , might be proven to be uplifted by apilgirth from the consignator , by the oath of the consignator , and of the clerk of the process who received the money , or only by writ , apilgirth the consignator being dead . the lords considering that it was ordinar to take up sums consigned for redemption of wodsets , being upon the peril of the consigner , did appoint the oath of the consignator and clerk to be taken , for proving that the money was taken up by apilgirth from the consignator , and that apilgirth and not the consignator put it in the clerks hands , and that the clerk gave it up again to apilgirth . the earl of argile contra the laird of mcnaughtan . feb. . . the earl of argile pursues the laird of mcnaughtan to remove from the lands of benbowie , as being a part of the earls barony of lo●how . the defender alleadged absolvitor , because he pr●duces a seising , dated in anno . proceeding upon a precept of clare constat from the earl of argile , in favours of alexander mcnaughtan as heir to giller mcnaughtan , of the four merk land of benbowie , by vertue whereof , the said alexander and his successors to this day have possessed , and so have a sufficient defense upon prescription by the act of parliament . anent prescription . the pursuer answered , that the defense is not relevant , as it is founded upon the naked seising only , because by the said act of parliament there is required to all prescriptions of land a title in writ , preceeding the . years possession , which title is d●stinguished in two cases ; first , in relation to rights acquired titulo singlari , whereunto is required not only a seising , but a charter , which although they may be excluded by an anterior or better right , yet if possession hath been had thereafter , for the space of fourty years uninterrupted , it becomes an unquestionable right , and all other rights are excluded . but , secondly , a greater favour is showen as to the title of prescription of lands belonging to any party titulo universali as heirs to their predecessors , in which their is no charter required , but seisings one or moe continued , and standing together for the space of fourty years , either proceeding upon retours , or upon precepts of clare constat , so that the seising in question proceeding upon a precept of clare constat cannot be a sufficient title for prescription , unless the precept of clare constat ●which is the warrand thereof were produced . dly , the said provision of the act requires that the seising one or moe must stand , and be continued for the space of fourty years , which cannot be alleadged in this case , because by the defenders production it is clear that the said alexander mcnaughtan , to whom the seising was granted , lived not for fourty years after the seising , so that unless his heir had been entered , and had possest by vertue of the heirs seising to perfyt the fourty years , the defense of prescription is not relevantly alleadged . the defender answered , that his defense of prescription stands relevant upon this one seising only ; and he oppones the foresaid clause in the act of parliament where an heirs title of prescription , is a seising proceeding upon a retour or precept of clare constat , and does not mention that the seising and precept shall be a sufficient title , as it does in the case of lands acquired , where it expresly requireth both a charter and seising , and it had been as easie in this clause to have required a seising , and retour or precept , whereas it doth only require a seising on a retour or precept , so that the seising relating the retour or precept is sufficient , and by long course of time sufficiently instructs the being of the retour or precept . as to the second answer , the meaning of the act of parliament by a seising one or moe standing together , is that the said seising be not reduced , for our law doth ordinarly oppose standing and falling by reduction , so that albeit the party seised died within fourty years after the seising , his appearand heir continued his possession , and being one person in law with him , did possess by his seising , and if it were otherewise understood , many absurdities would follow ; for if a person were infeft as heir , and did possess thirty nine years , thereafter dying , then if his heir were not infeft within the year , he should have no title of prescription , though within the fourty year six heirs consequently were infeft , all their six seisings with thirty nine years possession , though their appearand heir should continue an hundreth years thereafter in possession , would not induce pre●cription , yea , taking the act literally , it can never have effect , unless the heir infeft live and possess after his infeftment fourty years , which is very rare , for if there be more heirs that succeed , there must be still an intervale betwixt the death of the one , and the seising of the other , and so the seisings could not be said to be continued , but discontinued or interrupted , for possession is not continued , if the possessor cease to possess one year , so that prescription being of common interest and advantage to the leiges , the same ought to be ampliate in the interpretation thereof , and not straitned . the pursuer answered , that he opponed the clear words of the act of parliament , which does not only require fourty years continual possession , but also that it be by seisings sta●ding , continuing together fourty years , and that upon very solide reason , for if both charter and seising be required for a title to prescription in rights acquired : it cannot be imagined that an single seising should be sufficient in rights devolved by succession , without requiring any thing in place of the charter , so that if neither the precept nor retour be required , nor yet the continuance of the seising , either standing in the person of the first heir , or renewed in the persons of the subsequent heirs , which certainly is of purpose put to astruct the right in place of a charter , or other adminicle of the seising , and therefore the standing of the seisings is not here opposed to their being reduced , but their falling by the death of the person infeft , whereby according to the ordinar terms of law , the fee falleth in waird or nonentry in the hands of the superior ; neither can a subsequent heir possess by the seising of a prior heir , because seisings are not given to heirs , but to the individual person seised ; but charters and other rights given to parties and their heirs may be a title to their heirs to possess , but not a naked seising ; and as to the inconvenience , it would be far greater if one single seising were sufficient , and would open the door to all forgery , after parties and witnesses are dead , but if more seisings be required , if the first person die , it is much more difficult to forge diverse seisings , by diverse nottars , and diverse witnesses , which may be redargued by the hand-writ of some of the nottars , or survivance of some of the witnesses ; and what is alleadged upon a seising continuing thirty nine years , or of six subsequent seisings within that time is easily retorted by consideration of one seising , whereby the party infeft lived and bruiked but a year , whethet that would be a sufficient title for prescription , or if six consequent seisings proceeding upon charters and thirty nine years possession , yea , or a hundred years possession , all which would make no title of prescription , unless a charter were also produced , as is clear by the act , so we are not to consider equivalencies , but in a statute must take it as it is made , and not make it ; and as for the inconvenience alleadged that there must necessarly be intervales , it imports not , for the continuance of seisings is not required to be so exact as the continuance of possession , but subsequent heirs being infeft , albeit there be an intervale , their seising as in many other cases will be drawn back to the death of their predecessor , if there be no medium impedimentum by any process intented in the interim ; so that at least there must be a seising standing when the possession begane , and a seising standing when the first fourty years is compleat , but here there was no seising renewed , though there be a hundred years after the first fourty years , and a full progress as to all other lands . the lords found that there was no necessity to produce , or instruct that there was a precept or retour , otherewise then by the relation of the seising , but found that a seising not having fourty years possession , by the life and bruiking of the person seised , and never being renewed in his successors , is not a suffient title of prescription , and therefore repelled the defense : in this process the defender was permitted to alleadge the lands in question to be part and pertinent of his other lands , whereof he shew a full progress , and alleadged a continual possession , by doing all deeds of property that the subject was capable of , and the pursuer alleadging that these lands were severally kend and known from all the defenders lands contained in the said progress , and that he and his predecessors had exercised all acts of property that could be done in the case of a forrestry , such as the lands in question were , and that after the defenders alleadging on a several infeftment , by the foresaid seising , and so acknowledging these lands to be separ●●●m ten●mentum , he could not return to alleadge part and pertinent so considerable a tract of ground , six or seven miles long , yet the lords would prefer neither party to the probation , but before answer ordained either party to adduce witnesses anent their possession , and the several specialities by them alleadged , that by the probation the lords might see the just interest of either party , which might resolve into a promiscuous commonty , or into a property to the one , and a pasturage or other servitude to the other . marion dods contra lawrence scot. feb. . . by contract of marriage betwixt iames scot and marion dods , marion is obliged to pay in tocher a thousand pound to the said iames at the next candlemass , and the said iames is obliged to imploy the same to him and her in conjunct fee , and to the heirs of the marriage , which failzing to her heirs , and iames having died without children ; the said marion pursues lawrence scot as his heir , to imploy the sum conform to the said obligement , who alleadged absolvitor , because the pursuer has yet the tocher in her own hand , unless she can show a discharge . it was answered , first , that the parties having lived together . years , it must be presumed that the husband was payed , and had the custody of the discharge . dly . the husband by his testament acknowledges that the sum was payed . it was answered , that this written obligation cannot be taken away by such a presumption , and the assertion of the defunct in the testament , has been procured by the wifes importunity in her husbands weakness , and however cannot prejudge the heir , and can import no more then as legatum liberationis , which can only affect the deads-part of the free geir . the lords found the presumption with the acknowledgement in the testament a sufficient payment of the tocher , against all parties having interest . william gordon contra sir alexander mcculloch of ardual . february , . . william gordon as donator to the recognition of the barony of cardines , by allienation of the major part thereof , pursues a declarator of the recognition against sir alexander mcculloch , who stands now infeft therein , who alleadged no process , because the pursuer produces no charter to show the lands to hold waird , neither doth he produce the infeftments libelled , by which the recognition is alleadged to be procured , and if he shall get a term to prove , and so litiscontestation be made , the defender will either be excluded from his defenses , which he cannot propone or know before he see the infeftments , or otherwise two litiscontestations may be in the same cause , by admitting of exceptions after the term , and albeit these infeftments be not the pursuers own writs , yet he ought to have used an incident upon his summons , to have compelled the havers to produce the same , and so before litiscontestation , the defender might have proponed his defense . it was answered , that the pursuer is obliged to produce no more in initio litis then his gift of recognition from the king , for the law presumeth that the king is superior , and that the lands are waird , unless the defender offer to prove the contrare . as for the infeftments , whereby recognition is incurred , they are not the pursuers title , but media concludendi ▪ which he may produce ad modum probationis . the lords sustained the process , and assigned a term to prove the infeftments libelled for inferring the recognition , and reserved all the defenders defenses after the production thereof , in the same manner as if they were now produced . mrs. katharin mcgil contra the viscount of oxenfoord . eodem die . the deceased viscount of oxenfoord having named his son executor and universal legator , he gives a bond of provision to umquhile mistrisse mary , one of his daughters , in satisfaction of her portion natural and bairns part , there are yet three children beside the heir , and the said mrs. mary did survive her father , and in the compt and reckoning of his executory , the three surviving children claimed half of the moveables as the bairns part . it was alleadged for the viscount the universal legator , that a fourth part of the bairns part behoved to belong to him , which would have belonged to mrs. mary , because the bond granted by the defunct being in satisfaction of m●ries bairns part , her bairns part must come in place of it , and not accresce to the rest of the bairns , but must belong to him as executor and universal legator , especially this bond being granted on death-bed , is only effectual as a legacy , whereby the defunct did burden his own deeds part , which can be no otherways understood then thus , that he would make up maries portion to ten thousand pounds , her bairns part being in the first end thereof , and it cannot be thought his meaning to exhaust his deads part further or to gift any thing to the rest of the bairns by the accrescence of maries part . it was answered , that such bonds of provision are most ordinar , bearing it to be in satisfaction of their bairns part , which has ever been so interpret , that the portion of the bairn so satisfied accresceth to the rest of the bairns , and it was never heard that the heir or executor burdened with such bonds of provision , did thereupon recur to seek that share of the bairns part , which was satisfied by the bond of provision , neither is there any odds whether the provision were by legacy or bond , for the reason of recourse being , because the heir or executor is burdened to satisfie that bairn , and so in either case doth claim the share of that bairn , neither was it ever so understood , that fathers granting such bonds of provision , did not thereby leave intire the bairns part to the remanent bairns . the lords found that mrs. maries share of her bairns part did accresce to the rest of the bairns , and did not belong to the executor either as a part , or in place of any part of the ten thousand pound , but the samine did solely burden the deads part . agnes dundasse contra the laird of ardrosse , and the laird of touch. february . . the laird of ardrosse having granted bond to umquhile mr. henry mauld and his spouse , and their heirs , of . merks , and after his decease he granted a bond to the relict , bearing to have borrowed two thousand merks from her , and obliging him to pay the same to her in liferent , for her liferent use only , and after her decease to william mauld her son , and his heirs ; and another bond , bearing him to have received from the relict a thousand merks in name of henry mauld her son , and obliging him to pay to the said henry and his heirs ; and after all he granted a bond of ten thousand merks to the relict , her heirs and assigneys , which was made up of what remained due of all the three , this bond the relict assigned to the laird of touch , who having charged ardrosse , and he having suspended , there arose a competition betwixt touch as assigney , and agnes dundasse as heir and executrix to mr. henry , william , and henry maulds , and thereupon a division of the sums betwixt the parties ; thereafter agnes dundasse pursues ardrosse to make payment to her as heir and executrix to william and henry maulds , of two thousand merks , which he was addebted to the said william , and of one thousand he was addebted to the said henry ; whereupon he hath deponed that he was debitor by all the saids bonds before related , and no otherways , and that in the former decreet by mistake it was exprest , that the ten thousand merks bond was made up of the eight thousand merks bond , and of two thousand merks of annualrent thereof , whereas the truth was , it was made up by what was resting of the two bonds due to william and henry , which he produced cancelled of the tenor foresaid . it was alleadged for agnes dundasse , that the sums of these bonds behoved only to belong to her as heir and executrix to william and henry maulds , and not to touch as assigney by the relict . it was answered , first . that the said agnes had homologat the prior decreet , and division therein made , by giving discharges accordingly , could not claim any more . dly , another having taken a bond in the name of her two sons , being bairns in her family , might lawfully alter the same at her pleasure , there being nothing more ordinar then that fathers gives bonds of provision to their children , or takes bonds from their creditors in their names , yet these being never delivered , the parents may dispose of them at their pleasure . it was answered for the executrix , that the alleadgeance of homologation is not relevant , because it is emergent by ardrosse his oath , that the ten thousand merks bond , was not made up by the annualrent , but by the said two bonds , so that there could be no homologation of that , whereof the executrix was excusably ignorant . to the second , that albeit fathers granting bonds of provision in name of their children , may alter the same at any time before delivery : yet where they lend out the sum to a creditor , and take him obliged to a child in fee that cannot be ●ltered , especially where the parent is naked liferenter , and hath not reserved a power to lift and dispone ; but whatsoever be in the case of a father providing his children , who can by no presumption be thought to have any means ; yet after the fathers death , a mother taking a bond in the name of a bairn , it must be presumed to be the bairn● money , coming by the father or otherwise , and the mother having stated her self naked liferentrix in the one bond , and having no interest in the other bond , she could not recal or alter the same in prejudice of the children , especially seing they were infants , and had not tutors to care for them . it was answered , that the mother had held count for the whole means of the father , and so had cleared any presumption that thir bo●●s could be of his means , but she liferented the whole estate , and made up thir bonds out of the rents and annualrents , and denyed to be tutrix , or pro-tutrix , so that the money being freely her own , and her children having died before her , , she might warrantably alter the bond. the lords found that the mother could not alter the bonds taken in favours of her children from a debitor , being of the tenors above-written , wherein she was naked liferenter of the one , and had not so much as a liferent of the other , and that the sums were rather presumed to be of the bairns means then her own , seing they had no tutor , and any medling with their means was by her self , and that their executrix could not now be put to instruct what means they had , or be countable thereupon . iohn armour contra iames lands . february . . iohn armour pursues his tennents of some tenements in edinburgh , for meals and duties . compearance is made for iames lands , who produces a bond granted by umquhil george armour , bearing that george armour as tutor testamentar to iohn armour , had borrowed . merks from iames lands , and obliges him , his heirs , executors and assigneys , to repay the same , and thereby sets some of the saids tenements to iames lands , ay and while he be satisfied of the . merks , and thereupon alleadges he must be preferred to the mails and duties till he be payed . it was answered , this bond and tack were not sufficient , in respect he does not bind himself as tutor , nor the pupil , but his own executor and assigneys , and so it must be the tutors own debt . dly , this debt cannot burden the pupil simply upon the assertion of the tutor ; but the creditor ought to have seen the sum applyed to the pupils use : and therefore must yet alleadge in rem versam . otherways , if the naked assertion of tutors may burden the pupils , when they borrow their name , it is a patent way to destroy all pupils , tutors being oftimes insolvent . dly , the tutor could not set a tack of the pupils lands , longer than he had interest as tutor , ita est , the tutory is ceassed by the tutors death . the lords found that this creditor behoved to instruct the sum applyed to the pupils behove , which being proven , they sustained the tack . alexander pit●●irn contra february . . alexander pitcairn having right by progress to a wodset granted by iames kininmouth to mr. iames gordoun , and by him disponed to sir archibald sydserf , and by him to the pursuer , pursues the tennents for mails and duties , who alleadged that gordoun or sydserf were satisfied by intromission with the rents , for which they were comptable . it was replyed , that sir archibald sydserf had obtained declarator of the expyring of the reversion , and was neither countable nor redeemable , and for proving thereof , produced the decreet of declarator , in anno . against which it was objected , that it was null , because albeit the libel was upon a clause irritant , whereby it is provided , if the money were required , and not payed within such a time , the reversion should expire ; yet at the compearance and production , there is no mention thereof , albeit at the conclusion , the decreet bears , because the libel was sufficiently proven by production of the writs aforesaid , which can be only understood of the writs in the production , and it is not enough only that they were libelled upon ; for in all decreets , the whole production is specially insert . it was answered , that the requisition was truly produced , and that the omission of the clerk to repeat it in the production cannot annul the decreet after so long a time without a reduction thereof . it was answered , that albeit in favorabilibus , the lords may supply defects upon production , ex post facto : yet in odiosis , such as clauses irritant of reversions , the lords ought not to admit the same . the lords found the decreet of declarator null . sir david dumbar of baldoun contra david dick and others . february . . baldoun pursues ●he tennents of bombie for mails and duties . compearance is made for david dick , who produced an apprizing of the saids lands , against the lord kirkcudbright , within year and day of the pursuers appryzing , and craves to come in pari passu with the pursuer , conform to the act . anent creditor and debitor . it was answered that by the same act it is provided , that where comprizings are acquired by the appearand heir , or to his behove , that the same should be satisfiable for such sums as the appearand heir payed , and offers to satisfie the same . it was answered , that albeit the act doth so provide , as to the estate that might belong to the appearand heir , it can extend no further . but this appryzing is not only of the estate of orchartoun , but of the estate of kirkcudbright , wherein sir robert maxwel , appearand heir of orchartoun hath no interest , the appryzing must be valide as to that . it was answered , that kirkcudbright was but cautioner for orchartoun , and that the act bears , that such appryzings shall be satisfied by what the appearand heir payed : and such appryzings being satisfied , it is simply extinct and can have no effect . which the lords found relevant , and seing david dicks appryzing is assigned to sir roberts own brother , the lords allowed witnesses , ex officio ; to be adduced , for proving that it was for sir roberts behove . william gordoun contra sir alexander mcculloch . eodem die . william gordoun pursues sir alexander mcculloch for spuilzying of certain corns : who alleadged absolvitor , because the defender having right by appryzing to the lands whereon the corns grew , did warn the pursuer , and obtained decreet of removing against him ; and thereupon dispossessed him , and finding the cropt upon the ground , he might lawfully intromet therewith , nam sata cedunt solo , especially where the sower is in mala fide ; but here he was in violence after a warning , and did continue to sow after decreet of removing : yea a part was sown after he was dispossessed by letters of ejection . the pursuer answered , that by the law and custom of scotland , the cropt of corns , or industrial fruits are never accounted as pars soli , or any accessory , but are still moveable , even when they are growing , so that they belong not to the heir , but to the executor ; and in case of a disposition , without mention of the cropt , albeit the acquirer were infeft after they were sown , and upon the ground , he would not have right thereto , neither doth mala fides , or violent possession alter the case , for which the law hath provided a special remeid , viz. the violent profits : but it can be no ground to meddle with the parties cropt , brevi manu , as accessory to the ground , for then the parties should both lose the cropt , as pars soli , and be lyable to the violent profits , neither is there any ground from the warning , nor yet from the decreet of removing , which was suspended before it attained full effect , and the defender continued in possession of a house upon the ground , albeit he was put out of the principal house . it was answered that the decreet had attained full effect before the suspension , all the pursuers goods being off the ground , and he out of the mansion-house , wherein the defender entered ; and brought all his goods upon the ground : and though the pursuers mother being a valitudinary impotent woman , was suffered to remain in a coat-house , and the pursuer with her , upon that account , that imports no continuance of possession of the land. the lords repelled the defense as to that part of the cropt that was sowen before the appryzer entered by the letters of possession , reserving to him the violent profits for that time : but found the defense relevant , as to what the pursuer did after the defenders dispossession ; and found the defender only lyable for the expences of the labouring and the seed , as being eatenus locupletior factus . lord iustice clerk contra mr. iohn fairholm . february . . the earl of levin being debitor to lambertoun in fourty thousand merks , and having infeft him in an annualrent out of his lands in security thereof , mr. iohn fairholm did upon a debt due by lambertoun appryze the foresaid heretable bond and annualrent , which was holden of the earl of levin himself , who was charged upon the appryzing ▪ but unwarrantably to infeft fairholm in the lands , whereas the annual rent only was appryzed , and the charge should have been to infeft fairholm in the annualrent : thereafter fairholm did arrest the bygone annualrents in the earl of levins hands , and after all , did upon a decreet against lambertoun , arrest the bygone rents in levins hand , and lambertouns liferent of the annualrent having fallen by his being year and day at the horn , the justice clerk as donator to the liferent , and as arrester competing with fairholm , did alleadge that fairholms appryzing being an incompleat diligence , and no infeftment nor valide charge thereon , and having lyen over so many years , the arrester must be preferred , for which he adduced a practique observed by dury the . of february . salicots contra brown , where it was so found : and albeit fairholm be the prior arrester , yet he hath done no diligence upon his arrestment ; whereas the justice clerk hath obtained decreet , and as donator to the liferent escheat , he is preferable for years after the rebellion , because the liferent escheat falling before any infeftment , or charge on the appryzing , which was not used within year and day , the liferent excludes the appryzer . the lords found the appryzing preferable to the posterior arrestment , though no legal diligence was done thereon for the space of nine years thereafter , in respect the appryzing being a judicial assignation , required no intimation , and being prior , it is preferable : and they did not respect that single practique , the constant custom since being contrary : but found the liferent escheat preferable to the anterior appryzing , being without infeftment or charge , as to the years after the rebellion , and preferred the appryzer as to years preceeding . arnold of barncaple contra gordoun of holm . eodem die . there being four cautioners in a bond , and the principal debitor having suspended , and found a cautioner in the suspension , who having been distressed and payed the debt , and having gotten assignation from the creditor , charges one of the cautioners in the first bond , gordoun of holm , who suspends on this reason , that payment being made by the cautioner in the suspension , he can only have recourse against him for whom he was cautioner , but not against his cautioners in the principal bond , for us to them it is all one as if the principal debitor had payed . dly , though the cautioner in the suspension could have access against the cautioners in the principal bond ; yet all of them being cautioners for the same principal , they must bear equal burden , and so he must allow his own fifth part in the same manner , as cautioners in a bond of corroboration , bear equal burden with the cautioners in the principal bond. the lords found that the cautioner in the suspension had access against the cautioners in the principal bond , he alwayes deducing his own fifth part . earl of northesk contra viscount of stormond . february . . the earl of northesk pursues the viscount of stormond on this ground , that he having sent . pound sterling to london , to the umquhil viscount of stormond , to be imployed for houshold furniture , the most part thereof was not imployed , and for instructing his libel , produces several missive letters of the viscounts , one holograph , another having an holograph postscript , and a third written with another hand , which did state the accompt , and acknowledged the debt . it was alleadged for the defender , that the only letter which had any special probation in it , was the last , which is not holograph . it was answered , that the subject matter being a sum sent for furniture , which uses not to be redacted in writ , the viscounts letter subscribed by him , though not holograph , is sufficient to prove , for bills of exchange so subscribed , or letters among m●●chants are sufficient : and this letter being amongst noble persons in such a small particular , which requires not ordinarly writ , must be of the same force , especially seing there is also produced two other missives not controverted , which comparatione literarum , are clearly the same with this letter in question . the lords found that this letter , though not holograph , was a sufficient instruction , having compared the same with the other not controverted subscriptions ; the pursuer making faith , that this is the same letter which he received from the deceast viscount , his servant , or messenger . steil contra hay of rattray . iune . . umquhil steil having a feu of some aikers of the barony of rattray , chancellour hay as superiour , and baron of the barony , pursued reduction and improbation against steil and other vassals , and in iuly . obtained certification , the chancellours right being transmitted to doctor patrick hay , he accepts of the feu-duty and gives a discharge of the year . and thereafter in anno . having obtained decreet of removing against steils relict ; he by a transaction with her passes from it , and gives her other lands in lieu thereof , but without any mention of the improbation . steils heir attains possession of the saids aikers of land ; and hay of rattray , as now having right to the barony , pursues a removing against steils tennent , and obtains decreet of removing , without calling steil ; whereupon steil pursues ejection and intrusion against hay of rattray , wherein in respect that rattrays interest was by a sentence , though unwarrantably given , without calling the tenuents master . the lords restricted the letters to re-possession and ordinar profits wherein it was alleadged for rattry absolvitor , because the defenders author having obtained certification in the improbation , at chancellour hays instance , produces the same , which did evacuate the pursuers fathers and predecessours right . the pursuer replyed , first , that the decreet of certification produced , was not relevant , because it was not a certification in an improbation , which was not concluded by the summons , as they are exprest in the decreet , which bear , that the writs called for , should be cancelled , and declared null , but bears not that the same should make no faith , or should be declared as false , forged or feinzied . dly , doctor hay the defenders author , by accepting of the feu-duty for a term after the decreet , did pass therefrom , and did acknowledge and homologate the pursuers right , and did acknowledge the liferenters right , by excambion therewith . the defender answered , that he opponed his decreet of certification , the decernator whereof , is expresly in the terms of an improbation : and likewise the beginning of the libel ▪ being both at the chancellour and kings advocats instance ; and at the compearance , the pursuer insisted for improving the writs called for , so that the repetition of the conclusion of the libel , hath been only through inadvertence , not fully set down . and as to the discharge of the feu-duty , first , it is vitiat in the date . dly , it wants writer and witnesses , and albeit it were holograph , it cannot instruct the true date , and it can never import a passing from the improbation further , then for the term discharged , especially seing it was granted by doctor hay , who was singular successor to the chancellour , and perhaps knew not of the improbation . the pursuer answered , that the certification being granted in absence , the obtainer thereof might frame it as he pleased ; but it cannot be supposed to be truly better then as it stands : and though improbations being in absence , are very much adhered to , yet they are odious rights and very reduceable upon any defect or informality , seing it is formality that gives them all their strength . and as to the discharge , the date of it hath been altered at the subscription by the subscribers hand , as appears by comparing the date and subscription . dly , in the very body of the discharge , no ways altered , it bears to discharge the year . after the certification , and the discharge as it stands , is in the ordinar way as discharges uses to be given to tennents and vassals , for small feu-duties , and therefore must be sufficient in a case so favourable for the pursuer who has a clear right , and should not be eleided by this dubious certification , which must be restricted to a certification in a reduction , which is only reducing the rights till they be produced , and so falls , they being now produced . the lords repelled the defense upon the certification , in respect of the reply , and discharge produced , and decerned the defender to re-possesse the pursuer ; but assoylzied him from the bygone profits , seing he possest by a title , and had just reason to defend in a matter so dubious . sir william stuart of kirkhil contra sir george mckenzie and kettlestoun . iune . . sir william stuart as heir by progress to sir lewis stuart , his goodsire pursues improbation of a bond , bearing to be granted to mr. iohn stuart of kettlestoun , his son granting an annuity of . merks yearly during his life , and some other provisions : which bond is assigned by keitlestoun to sir george mckenzie , and being produced , kettlestoun has abidden by the same , and has declared upon oath , that he was not present when it was subscribed , but that he received it from his father , as now it is , one of the witnesses insert being then kettlestouns servant depon'd , that the subscription to this bond as witness is his subscription , but that he did not see sir lewis subscribe , nor any of the other witnesses ; and remembers nothing of the matter , and that he knows not iohn carnagie , serviture to the earl of southesk , another witness insert . the pursuer thereupon craved that the defender would more particularly design the other witness john carnagie ▪ serviture to the earl of southesk , because there were several persons servants , or attendents upon the earl at that time of the same name , and condescends upon two of them having several designations , beside this common one . the defender alleadged that he was obliged to condescend no further , seing the act of parliament required no more than the name , sirname and designation . it was answered , that the intent of designations being to find out the person of the witness , that he might be adduced in the improbation , a general designation would not suffice , but behoved to be made special , or otherways if the pursuer should cite any person of that designation , and that person should deny the subscription , his testimony would improve , or at the best , the defender behoved then to design specially another of the same common designation , otherwise it were a compendious way to all forgery , as if witnesses should be insert of such a name , indwellers in edinburgh , or any other town : in that case , if the testimonie of none of them should improve , there were no remeed for the falshood . the lords found that all the persons that were the earl of southesks servants or attendantsat that time , and were called iohn carnagie that were alive should be cited , and the hand-writs of any that wereso designed , that were dead , should be produced by either party to be compared with this subscription , that thereby it might appear if the subscription could be astructed by the testimony or hand writ of any other . sir , francis scot of thirlstoun contra lord drumlanrig . iune . . sir francis scot having obtained decreet of adjudication of the lands of brankinside and others , and having charged the lord drumlanrig to receive and infeft him . he suspends on this reason , that he was willing to satisfie the sums contained in the adjudication , upon assignation made to him thereto , and so was not obliged to receive the charger . it was answered , that albeit king iames the third , his act of parliament anent appryzings , doth provide , that for a years rent , superiours shall receive appryzers , or otherways shall take the land to themselves and pay the sums ; yet that gives not the superiour an option , but bears failzying of paying a years rent , the superiour may satisfie the sums , and take the land in his own hands , but where that was offered , it was never by custom or practique allowed , that the superiour should exclude an appryzer , but whatever were in the case of appryzings , that power was never granted to superiours in adjudications , whereupon they were still obliged to receive adjudgers without a years rent , until the late act of parliament , and the said old statute giving an option to the superiour , is not to be extended to adjudications ; nor was it ever by any subsequent law , or consuetude extended thereto . it was answered that by the ancient feudal law , a superiour could not have been compelled to receive a stranger vassal , albeit a creditor , yet the statute of king iames the d. did remeid this in favours of creditors , and obliged superiours either to receive appryzers for payment of a years rent , or else to pay the sum apprysed for ; but long after that time , there was no mention of adjudications , which were a supplement of the lords , that where the appearand heir being charged , did renunce , the creditor should not be frustrate , but might obtain adjudication of the lands , contra haereditatem jacentem , which except as to that point of form , is the same with an appryzing , under another title : and albeit as to the years entry , the lords would not extend the same to an adjudication : it was upon this special reason , that in the act of parliament . anent appryzings , the same is declared redeemable upon the sums appryzed for , and a years rent for the entry ; yet in the very next act in the same parliament anent adjudications , the years entry is left out , which was thought by the lords to be done by the parliament of purpose , and so not to be extended by the lords : but otherways the same reason was for the entry in adjudications as in appryzings , which the parliament has now found by their late act ; and therefore the matter of the entry is not to be drawn in consequence to the superiours option . the lords found that the superiour had his option , and might refuse to receive the adjudger , offering to satisfie the sums in his adjudication , upon assignation made to him thereof , and declared that the same should be redeemable from the superiour upon the like sums without any thing for a years entry ; and that in all things else , the superiour and vassal should be in the same case as if the adjudger had been entred to that effect . town of breichen contra town of dundee . iune . . laurence dundass having been debitor to the earl of seaforth in . pound sterling , was incarcerat in the tolbooth of breichen , and being suffered to go out of prison , mr. rory mckenzie as assigney to the earl , obtained decreet against the town for payment of the sum , and took assignation to the caption , and therewith incarcerat laurence in the tolbooth of dundee , and now pursues the town of dundee for suffering laurence to go out of prison . and condescends that they suffered him to go ordinarly to the kirk on the sabbath , and that once they suffered him to go to the river by boat , and over to fife another shire ; and ordinarly to go to the street , and to taverns without necessar affairs . the defenders answered , that the prisoner returned still to the prison every night , and went always abroad with a guard , and his going to the water was because of his indisposition , and for his health , that if he touched upon the other side in fife , he did return that same night to prison : and that his going to the kirk with a keeper , can be no relevant ground ; and even the going out upon other occasions with a keeper , though not absolutely necessar , cannot make the magistrates lyable , it being the constant custom of all burghs so to do , and that a prisoner being under a guard , is in prison , albeit not in the tolbooth . the pursuers answered , that magistrates of burghs were but publick servants in keeping of prisoners , and were obliged to give punctual obedience to the letters of caption , bearing to keep the rebel in sure firmance within their tolbooth , which is founded on very good reason , that the prisoner may be necessitate , squalore carceris , to do all deeds in his power to satisfie his debt , which would be eluded , if the magistrates at their pleasure might let them go out with a guard , and would but turn to a confynement , or intertainment and gratification to an officer for a guard : and even though there were necessar causes of the prisoners coming out , the magistrate is not judge thereof , nor has any power of it , but the party ought to apply themselves to the council or session , and obtain their warrand , which will not be granted even by them , but upon instruction of a necessar cause , upon oath of physicians or others . the defenders answered , that incarceration was a civil effect of law , and no punishment , and that it were against all humanity , to put prisoners for civil debt in that condition , that the magistrates could not let them out for a little , even for the safety of their life , in extremity of sickness , which oftimes would not admit of delay , till application were made to the council or session . dly , whatsoever may be found just by the lords in time coming , yet the constant and universal custom of this and all other burghs , to let prisoners go out with a guard when they saw convenient cause , did introduce a priviledge to burghs , or put the defenders in bona fide , to act as all their predecessors had been accustomed to do , without any question or decision in the contrair , and alleadged a late practique in the case of the town of culross , who suffering a prisoner that was a poor man , to go out to an hospital , where he got bread , and thence he immediatly returned to prison , and to go and see his nearest relation that was a dying in the town , or to their burial , was not found lyable for the debt . the lords considering the ordinary custom of burghs , found that as to the time past they would not find them lyable for suffering prisoners to go out with a guard for any necessar cause , and found the defense relevant , that this prisoner was let go out with a guard for his health , or to the kirk on the sabbath , but found that member of the condescendence relevant , that he went out to the street and taverns without a necessar cause , though with a guard , relevant to infer the debt : but found that in time coming they would have no regard to that unwarrantable custome ; but that magistrates of burghs should only have power to let prisoners come out of the tolbooth under a guard in the extream hazard of their life by sickness , and not without testificats by physicians or skilled persons upon oath , bearing the parties condition to require the same , and that without great hazard , they could not suffer delay to make supplication to the council or session . the lady wolmet and dankeith her spouse contra major bigger . eodem die . jean dowglas lady wolmet being by her contract of marriage infeft in the half of the lands of wolmet , did with her husband consent to a wodset of the whole lands for . merks , wherein there is a back-tack setting the lands and coal to her husband and her , the longest liver of them two for payment of the annualrent of the money : which wodset the said iean in her viduity as tutrix , renewed to the first wodsetters assigney , and became personally obliged , both for the principal sum , and back-tack-duty , and took the back-tack , half to her self and half to her son the heir ; but after the first wodset , her husband set a tack of the whole coal to his seven children , for twelve years , they paying twelve hundreth merks yearly to the wodsetter , and two merks yearly to his heir : which tack expired in anno . after which the said iean dowglas and david cunninghame of dankeith her husband , pursues major bigger as intrometter with the coal for the half of the profite thereof , conform to the back-tack , who alleadged absolvitor , because the back-tack , in so far as it exceeded the ladies joynture , was a donation between man and wife , and was revocked by the childrens tack , and being once revocked , remained for ever revocked , because the ground of law prohibiting donations between man and wife , and annulling the same , nisi morte confirmentur is introduced ne mutuo amore se spolient ; and therefore nothing can make them effectual but the husbands continuing in the same mind to his death , but any signification of alteration of his mind , directly or indirectly , though it were in his testament or codicil , or by any deed whereby he owns the thing disponed , as still at his disposal , is sufficient to annul the wifes right , as if he should grant a wodset of the same lands , though without mention of his wifes prior liferent , given gratis stante matrimonio , it would revock the same : so that though the husband redeemed the wodset , the wifes right would not revive . so here the bairns tack being of the whole coal for twelve years , doth wholly revock the back-tack , as to the wife , not only during these years , but for ever . dly , there is a minute of contract betwixt the husband , his wife and raith of edmonstoun , clearly showing the change of his mind , and restricting the lady to her first liferent . it was answered , that albeit in jure donationis , or where there was a clear and liquid excess of the right received , exceeding the right quite , any deed evidencing the change of the husbands will , might be sufficient to recal it ▪ yet that holds not here , where the lady quite a certainty for a casuality , viz. the profite of a coal , which might many wayes have been ruined and unprofitable , in which case she would have nothing for her joynture , and so it was permutatio spei , aut jactus retis , and at the time of the wodset , was not of more value in buying and selling then the joynture of the lands , being certain . dly , this not being a pure donation , the husband could not recal it till he had restored his wife to her first liferent , and releaved her of all burden and distress she had sustained by the wodset : neither had he shown his mind to change , but only in part . and as to the contract with raith , it was in contemplation of a marriage , and was all founded on advancing sums to redeem the wodset , whereby the back-tack ceased . dly , the defender connot exclude the pursuer , unless he pay her all bygone years of her joynture she wants from , to . by arrestments and processes upon the back-tack , and free her of the principal sum and annualrent , and satisfie her of the damnage she has sustained by lying out of her liferent , for all these years , and sustaining a long pursuit , wherein she is willing to acquiesce . the lords in respect of this offer , and that the defender did also offer to free and relieve her , rested therein , and did not proceed to advise the former points , in jure . bowers contra lady cowper . iune . . bowers pursues the lady cowper as vitious in●●●●●er with the lord cowpers goods and gear , for payment of a debt of his , who alleadged absolvitor , because she had a disposition from her husband of his moveables . it was replyed that the disposition being between most conjunct persons , without a cause onerous , was null by exception by the act of parliament . against fradulent dispositions . it was answered , that the disposition behoved at least to purge the vitious intromission , and did stand ay and while it was redeemed : for notwithstanding of the tenor of the said act , the lords do not sustain that nullity by way of exception or reply . the lords found the nullity competent by way of exception , it being no heretable right , requiring the production of authors rights , but in respect of this colourable title , restricted the vitious intromission to the single value . lord lovet contra lord mcdonald . eodem die . the lord lovet pursues the lord mcdonald to count for the superplus of a wodset , from the date of his instrument of requisition , in anno . whereupon he had raised summons in anno . it was alleadged that the instrument was at the defenders dwelling-house , when he was out of the countrey , and bear no production of the procutry , and only an offer of a bond , with a clause of infeftment in all lovets land : and did not bear an offer of caution . it was answered , that the act did not require requisition by instrument , but quaevis insinuatio sufficit , and the instrument bear delivery of a copy to the defenders lady in his house , there being no procutry , for the pursuer offered now to produce the same , and a surety by infeftment was sufficient , the act of parliament mentioning no caution . the lords found that the requisition behoved to be by letters of supplement , at the cross of edinburgh , and pear of leith , seing the defender was out of the countrey , but sustained the same , as to the procutry , it being now produced , and sustained the offer of surety , and ordained it to be produced , reserving the objections and answers of either party thereanent . iohn boyd contra hugh sinclar : iune . . john boyd having a right to some teinds in orknay , pursues hugh sinclar as intrometter therewith , who alleadged absolvitor , because he had right to a tack , set to umquhil sinclar during his life , and to his first heir after him , during his life , and nineteen years thereafter , which is not yet expyred ; for though the defuncts eldect son survived him , yet he was never entered heir to him , neither did he possess thir teinds , and died shortly after his father , but it is not nineteen years since the second son died , whos 's retour is produced , as heir to his father . the lords found that the eldest son surviving his father , although he never possest , was the first heir as to the tack , and that he needed not be served heir . alexander alexander contra the lord saltoun . iune . . the earl of hadingtoun having obtained a gift of bastardy , and ultimus hares , of umquhil william gray , provost of aberdere , did assign the same to alexander alexander , with a process thereupon , against the lord saltoun , for payment of . merks due by him by bond , to the said umquhil william gray . the defender alleadged that this bond being granted for the price of land bought by him from the bastard , and of the same date with the contract of alienation thereof ; there was a back-bond also of the same date , by which the said william gray was not only obliged in warrandice , but also to procure himself infeft , holden of the earl of mar , to purge an inhibition at the instance of ramsay , and to procure a right of an appryzing , at the instance of the lord newbeath . the pursuer answered , that the king or his donator was not obliged to fulfill these obligements of the bastard , which were not liquide nor special . it was answered , that the gift of bastardy , or ultimus haeres , not falling to the king by forefaulture , or any delinquence , but by deficience of the bastards heir , the donator was in no better case , as to the fulfilling of these obligements , then the bastard or his heir would be , if they were pursuing upon the bond , who could not seek payment till the obligements in the alienation , or back-bond , which were the causes of this bond were fulfilled . which the lords found relevant , as to the special obligements of obtaining infeftment , and purging the inhibition and appryzing , but not as to the general obligement of warrandice , wherein no distresse was alleadged . thomas crawford contra iames halliburtoun . eodem die . thomas crawford having charged iames halliburtoun upon a decreet arbitral for payment of a sum . he suspends , and alleadged that he was interdicted at that time , and that the interdicters did not consent to the submission , or decreet arbitral . the pursuer answered , first , that the alleadgeance was not competent by exception , but by reduction . dly , that interdictions had only the same effect as inhibitions , and did operate nothing as to moveables , or personal execution , even by way of reduction . both which defenses the lords found relevant . john neilson contra menzies of enoch . iune . . john neilson as assigney constitute by iohn creightoun , pursues menzies of enoch for the rents of certain lands in enoch upon this ground , that there was a tack set by james menzies of enoch of the saids lands , to the said iohn creightoun for nineteen years , for payment of fourscore pounds scots yearly of tack-duty , thereafter by a decreet arbitral , betwixt enoch and his eldest son robert , he is decerned to denude himself of the saids lands , in favours of robert , reserving his own liferent : after which decreet , robert grants a second tack to creightoun , relating and confirming the first nineteen years tack , and setting the land of new again for five merk of tack duty , in stead of the fourscorepounds : after which tack robert dispones the land irredeemably to birthwood , but at that time robert was not infeft , but upon the very same day that the disposition was granted to birthwood , robert menzies is infeft , and birthwood is also infeft : birthwoods right by progress comes in the person of iames menzies , the defender roberts brother . the pursuer insisted for the duties of the land , over and above the fourscore pounds , during the life of old iames menzies , and over and above the tack-duty of five merks after his death : for which the defender alleadged absolvitor , because he produces a decreet at his instance against creightoun the tacks-man , decerning him to remove , because he was then resting several terms rent , and failed to pay the same , and to find caution to pay the same in time coming . the pursuer answered , that the said decreet was in absence , and was null , because the defender libelled upon his own infeftment , and upon a tack set to creightoun the tacks-man by himself , and there was no such tack produced by him , or could be produced , because the tack , albeit it bear to be set by iames menzies , yet it was only set by james menzies his father , and not by himself . the lords found the decreet null by exception . whereupon the defender alleadged that the decreet at least , was a colourable title , and he possessed by it bona fide till it was found null , & bonae fidei possessor facit fructus consumptos suos . it was answered , that a title that needs reduction , may be the ground for possession bona fide : but this is absoltely null by exception . dly , the obtainer of the decreet was in pessima fide , because imediatly after the obtaining it , it was suspended , and the tacks-man was able to instruct that there was no duties resting at that time , and though protestations were obtained , yet the suspension was never discust against the tacks-man . the lords repelled this defense also . the defender further alleadged , that albeit he would make no opposition against the first tack , yet the second tack could have no effect against him , because , before it was cled with possession , robert menzies setter thereof , was denuded in favours of birthwood , from whom the defender has right , and it is unquestionable , that a tack not attaining possession , is no real right , and that a singular successor , infeft before possession on it , will exclude it . dly , as the tack was not cled with possession , so robert who set it had no real right in his person when he set it , but only the decreet arbitral . the pursuer answered to the first , that he opponed his new tack , which contained not only a ratification of the old tack , but a new tack de presenti , for five merk , and so was like a charter by a superiour with a novo damus , whereby the tacks-man might ascribe his possession to any of the tacks he pleased ; and if this tack had born expresly , a reservation of the fathers liferent for eighty pounds yearly , it would have been unquestionably a valide tack from the date , and payment to the father by the reservation , would be by vertue of the new tack , as well as of the old : so likewise the tacks-man might renunce the old tack , and retain the new ; or if the new tack had been taken without mention of the old , the same would have been cled with possession , albeit it could not effectually exclude the payment of fourscore pounds to the father , during his life , as having a better right by the reservation . as to the second alleadgeance , albeit robert who set the tack , was not infeft when he set it ; yet robert being thereafter infeft , his right accresced to the tacks-man in the same manner , as if he had been infeft before , fictione juris . it was answered to the first , that the new tack did not bear a reservation of the old , but the tacks-man having two tacks in his person at once , although he might quite either of them , or declare to which of them he ascribed his possession , before the interest of any other party : yet not having so done , he must be holden to possess by the first , because he continued to pay the tack-duty of the first , and never payed the tack-duty of the second till the setter was denuded . to this it was answered , that the payment to the liferenter , who had a better right , did not import the possessing by the first tack , and the tacks-man needed not declare his option till he was put to it , but law presumes that he possessed by that right , which was most convenient for him . as to this point the lords found that the tacks-man might ascribe his possession to either of the tacks he pleased , both of them being set for a distinct tack-duty , and that agibatur by the second tack , that the fathers liferent should be reserved . as to the other point , the defender alleadged that the infeftment of robert who set the tack , could not accresce to the tacks-man ; because the same day robert was infeft , he was denuded in favours of birthwood , and he infeft ; so that it must be presumed , that he was only infeft to that effect , that birthwoods right might be valide . dly , it was offered to be proven , that birthwood procured roberts infeftment by his own means , and so it cannot accresce to any other in his prejudice . it was answered , that whoever procured the infeftment of the common author , the fiction of law did draw it back to all the deeds done by that author , that might arise from that infeftment , which cannot be divided or altered , by the acting or declaration of either , or both parties . which the lords found relevant , and found the infeftment did accresce to the tacks-man in the first place , whose tack was prior with absolute warrandice . lord balmerino contra hamiltoun of little prestoun . june . . wishart in leith did grant infeftment of an annualrent of fourty pounds yearly , out of two tenements in leith , in any part of them : which annualrent by progress belonged to mr. iohn adamson , and after the constitution of the annualrent , the two tenements were transmitted to different proprietars , and now the one belongs to the lord balmerino , and the other to hamiltoun of little prestoun , the annualrenter did only insist against balmerino's tenement , and upon an old decreet of poinding of the ground of that tenement , hath continued in possession , and distressed balmerino : who having suspended on this ground , that the annualrent being out of two tenements , whereof he had but the one , he could be only lyable but for the one half . the lords found that the annualrenter might distress any of the tenements for the whole , but reserved to balmerino his relief as accords . whereupon balmerino now pursues little prestoun to repay him the half of the annualrent , for which he was distressed , because he having payed , did liberate little prestoun of the annualrent , which affected both tenements , they being now in different heretors hands , behoved to infer a proportional relief , as is ordinar in all annualrents , constitute upon any barony or tenement , which thereafter comes to be divided . the defender alleadged absolvitor , because he had bruiked his tenement much more then fourty years before this pursuit , free of any such annualrent ; and therefore had prescribed the freedom thereof . the pursuer answered , that prescription was hindered by the annualrenters possession , in getting his annualrent , which though it had been but by a personal obligement , it would have preserved his right intire to all effects in the same manner , as payment by a principal debitor hinders the cautioners bond to prescribe , though he were free thereof for fourty years . it was answered , that albeit there might be ground for the reply , where the annualrent is constitute out of one barony or tenement , whereon infeftment may reach the whole , yet it cannot hold in this case , where the annualrent is constitute upon two distinct tenements ; and where there behoved seasing to be taken upon both of them , and if omitted upon one , that would be free . the lords found that payment of the annualrent out of any of the tenements , saved prescription as to both . leslies contra alexander iaffray . eodem die . leslies pursues alexander iaffray and others , for producing of writs , and counting anent a wodset right , as being satisfied by intromission , and that as appearand heirs , ad deliber●● dum . wherein the lords refused to sustain the summons for compt and reckoning , but only for exhibition , albeit there was a practique produced , observed by dury upon the ● . of march . betwixt hume and hume of blackadder , wherein compt and reckoning was sustained at an appearand heirs instance , the custom having been ever since contrair upon this ground , that no party should be troubled to compt at the instance of those , who when the compt was closed , cannot exoner them , and yet may put them to make litiscontestation and probation in the cause . duke of buccleugh contra parochioners of eodem die . the minister of hasendein having obtained the designation of a gleib out of the duke land , who alleadged that the minister having a gleib before , extending at least to two aikers , the earl upon this designation had gotten possession thereof , and could only seek relief for the superplus . it was answered , that these two aikers had never been designed as a gleib ; but the pursuers predecessors were infeft therein , and in possession thereof before the ministers , and any possession they had , was but by their sufference and con●●vance . it was answered ; that decennalis & triennalis possessor non tenesur docere de t●●u●o and the minister was not only in possession thirteen years ; but thirty years . it was answered , that albeit possession may be a title , yet it may be elided by the pursuers right , which cannot be taken away but by prescription ; whereupon the question arose , how the tollerance or sufference of the ministers possession was probable , whether by witnesses or not , seing tollerances are not ordinarly so proven . the lords found that if the ministers possession were alleadged to have been . year , as belonging to the kirk , that the dukes tollerance could only be proven by writ , to elide the same , but if for fewer years , they found the tollerance or sufference probable by witnesses . mr. arthur gordoun contra laird of drum. eodem die . mr. arthur gordoun as assigney to a decreet recovered against the laird of drum , charges him thereupon . he suspends on this reason , that the debt being originally due to a defunct , his two executors nominate , recovered the decreet , and the one only assigned the whole to mr. arthur , whereby he can only have right to the half . it was answered , that the other executor being dead before the assignation , the office accresced to the surviver , who might uplift all that was in bonis defuncti , not uplifted . it was answered , that this debt was no more in bonis defuncti , but being established in the executors person by sentence , testamentum suit oxecatum , and the deceased executor's half behoved to belong to their executors , and not to accresce . which the lords sustained . lady ballagan contra lord drumlanrig . iune . . the lady ballagan being by her contract of marriage provided to certain lands , and amongst others , to the lands of birks , the contract bears , that she accepts of the saids lands in full satisfaction of all further conjunct-fee , liferent , or terce : she was infeft in the lands of birks by her husband , but was not confirmed by the lord drumlanrig superiour , of whom the lands held ward . the lady pursues the tennents of birks for mails and duties . compearance is made for the lord drumlanrig superiour , who craved preference , because the lands are now by ward in his hands by the death of the husband , and minority of the heir . and as for the ladies infeftment , it can have no effect against the ward , because it is not confirmed . it was answered , that the lands being ward , and lesse then the third part of the ward lands , holden of the lord drumlanrig , the lady has right by law thereto , as her terce . it was answered , that by her contract of marriage , she had accepted the lands provided therein , in satisfaction of her tero● , which is the ordinar conception of a renunciation , as when a sum is accepted in satisfaction of any prior debt , it imports a renunciation and discharge of the prior debt , and an inhibition prior to the last bond , will reduce any right thereupon : neither can it be maintained , as having an anterior cause by the former bonds ; yea , any appryzing upon them would be void , because they are renunced . it was answered for the lady , first , that there was here no formal renunciation , or discharge of the terce , and the acceptance of lands for it , doth very well allow , that the land accepted , may be bruiked as terce , at least a terce of that land must be due , though no terce of other lands can be claimed : and albeit the clause in satisfaction , in personal rights , is commonly understood to renunce and extinguish the prior rights , unless they be reserved : yet it is not so in real rights , for if any person have many rights to lands , and doth thereafter accept a disposition of a part of the lands in satisfaction of all his interest , that does not renunce his former rights to that land , but he may defend himself with them all . so here accepting of lands in satisfaction of a terce , does not renunce the terce , as to the lands accepted . dly , albeit this clause could import the renuncing of all terce , that can never be extended to the benefite of the superiour , nor can it be understood the contracters mind , to exclude the wife from the terce , to make it accresce to the superiour , in both their prejudices , because the husband by the warrandice , must make out the joynture . dly , albeit the renunciation could be profitable to the superiour , yet it being by this clause in the contract , the superiour cannot question the ladies infeftment , which is the cause of the renunciation , but must adhere to the whole clause , nam qui approbat non reprobat . it was answered , that the common sense of this clause of acceptance does still import a full renunciation , neither can the intention , or meaning of the parties import any thing , unlesse they had acted accordingly ; for it had been easie for them to have said , but prejudice of the terce , as to thir lands ; so that the terce being renunced , the renunciation is profitable to all parties having interest , because the right thereby renunced is simply extinct : neither needs the superiour approve the infeftment un-confirmed , by making use of the renunciation , for as there could be no pretence for that upon the naked clause , without any infeftment , so the meaning can only be , that if the clause had been perfected by a valide infeftment , he could not have quarrelled it . the lords preferred the superiour , and found the acceptance a full renunciation of the terce , both as to the lands accepted , and others . helen hume contra lord iustice clerk. iune . . umquhile hume of rentoun having made several provisions to his children , and amongst the rest to helen hume , and having recommended the same to his son , now justice clerk ; he gave a bond to the said helen of two thousand merks , payable upon requisition of fourty days ; the said helen pursued registration of the bond , wherein it being alleadged that any requisition made was past from , by acceptance of annualrent for terms after . the lords assoilzied from that charge , until requisition were made , and new requisition being made since , before the extracting the absolvitor , the lords sustained the same . it was further alleadged absolvitor , because the bonds granted by the father was done on death-bed , and the bond granted by the defender his son was in his minority , and he had reduction depending upon the saids two reasons . the pursuer replyed , that the defender had homologat the bond in question by a posterior contract , whereby he had appointed a yearly payment to his mother , in satisfaction of this and the other portions . the defender duplyed , that that contract was no homologation , being subscribed by him when he was minor , having curators , without their consent , and so is null by exception . the pursuer triplyed , that the defender had homologat the said contract and bond in question by these deeds . first , that after majority he had payed annualrent . dly , that he had pursued exhibition and registration of the said contract , and thereupon had obtained the same registrat , and the decreet decerns letters to be direct at his instance thereupon . it was answered , that the payment of the annualrent , albeit voluntar , though it may exclude repetition of it self , it cannot infer homologation of the whole bond , especially the payment being made by a brother to an indigent sister . dly , payment of annualrent cannot homologat a contract , which is null by exception . thly , any payment that was made , was after the decreet of registration , and so necessar ; and as to the exhibition , the pursuing for a delivery of a writ doth not import the approbation of the contents of it , but only a calling for it , because the writ belongs to the subscriber thereof , though he may quarrel the obligement therein contained , and albeit the writ was ordained to be registrat , yet there was neither charge nor execution used thereupon . the lords found the payment of the annualrent in manner foresaid not to import homologation , but they found that a writ subscribed by a minor without consent of his curators , as it might be ratified , so it might be homologat , and that it was de facto homologat by this decreet of registration , containing neither reservation nor protestation for quarrelling the writ registrat . it was further alleadged , that the new requisition was null , bearing to proceed on a procutry , and not bearing the procutry produced . it was answered , the procutry was not called for , and that the having of the writs , which the requisition mentioned , did import a power to require . dly , this is a dilator after a peremptor . the lords found the alleadgeance upon the nullity of the requisition receivable after the peremptor , and sustained the requisition , the pursuer producing the procutry , which was the warrand thereof before extract . forbes of watertoun contra shein . eodem die . forbes of watertoun pursues reduction of an apprizing ex capite inhibitionis . the defender alleadged absolvitor , because the bond which was the ground of the inhibition is satisfied , in so far as there followed thereupon an apprizing , which came in the person of the debitors appearand heir , and so is redeemable from him , for the sums he truly payed , by the act ▪ betwixt debitor and creditor ; and it is offered to be proven , that the sums he payed are satisfied by intromission with the rents of the apprized lands , or what is wanting the defender will instantly satisfie or purge . it was answered , that albeit the act of parliament had declared that apprizings might be satisfied by payment of the true sums payed for them by the appearand heir , that cannot extend to this bond , or inhibition , or reduction thereupon , for the pursuer may passe from his apprizing , and yet make use of the bond , and this alleadgeance will only be relevant when he insists upon his apprizing . the lords found the defense relevant , that the satisfaction of the apprizing on the bond did to all effects satisfie , and extinguish the bond it self . the creditors of balmerino contra the lady couper . eodem die . the deceast lord c●●per having made an heretable and irredeemable right of his whole estate and dignity to his lady and her heirs : the lord balmerino his nearest heir in the estate , making use of the names of certain of his creditors , that he might not be necessitate to enter heir , before the event of this plea , pursues a reduction of the said disposition , as being on death-bed . the defender alleadged , first , that the reason of reduction , as it is libelled , is not relevant , that the defunct contracted a deadly disease before the making of the disposition , and that he died of the said disease , which is not relevant , unless the particular disease were condescended upon , otherwise it will remain conjectural and unsure , and witnesses cannot distinctly depone whether he was sick or not , specially he being an oldman , so that they could not distinguish betwixt sicknesse and weaknesse through old age . dly , the reason is not relevant , unless the disease were alleadged to be morbus sonticus , that might affect the mind , and infer a weaknesse , which is different from fatuity or insensibility . dly , the defender alleadged absolvitor , because he offered him to prove that the defunct was in health the time of the disposition , at least in as good health as he had been for several years or moneths before , when he did go ordinarly abroad to kirk and mercat , about all his affairs , at least if he had any indisposition , it was not impedimentum rebus agendis , because it is offered to be proven that he constantly put on his cloaths , and walked up and down his house , convoyed strangers to their chambers freely without being helped or supported , and in the same manner went down with others to their horse to the green , made several accompts and bargains , and frequently played at cards , all which must necessarly infer his health , unless a circumstantial disease were condescended upon and proven ▪ dly , the defender offered to prove that after the disposition , the defunct went to kirk and mercat , at least to one or other of them , which the law hath allowed as unquestionable evidences of recovery of health , and which therefore is relevant , though sicknesse was specially proven to have been contracted before , and condescends that the disposition being dated the eight of december . upon the thursday immediatly after , the defunct went to the mercat of couper , it being the mercat day , and upon the sabbath thereafter heard sermon in the kirk of couper . the pursuer answered , that this reason of reduction is most relevant , and in the same terms , that the reason of death-bed has alwayes been libelled ; neither was it ever found necessar to condescend upon morbus sonticus , but as craig expresses it sufficit si morbus precedat & mors sequatur , before the defunct go abroad , yet probatis extremis presumuntur media , it is still presumed that so long as the defunct after the disease remained within doors , that the disease continued , and that presumptione juris & de jure , neither doth it admit a contrare probation , by alleadging that the party convalesced medio tempore , otherwise then by his going out to publick meetings at kirk and mercat , nor is there any necessity to condescend on the kinds of diseases , which even physitians themselves , and the most skilful can hardly determine . and as to the first defense , offering to prove that the defunct was in health , it is contrare to the libel , and no ways competent , for in the case of contrare alleadgeances , the pursuer offering to prove sickness , and the defender offering to prove health at the same time , the pursuer as being in the libel must be preferred , especially considering that where such deeds are procured through importunity from sick and weak persons , who would do any thing to get leave to die in peace , the contrivers by the same facility may debar the accesse of any , but such as they have confidence in , and who have cuncurred with them in the contrivance , so that the disponers sicknesse is difficillimae probationis , yet quaelibet probatio sufficit , as in this case within a day or two of the disposition , my lord was put to violent nature to attempt to go to the mercat , and three days after to the kirk , in both which attempts he failed , which doth sufficiently presume that he was sick before , and was not able to cover his sicknesse for a little time to attain the evidences that law requires to infer health , but if a contrare probation should be sustained , or preferred as more pregnant , and which would be by familiar persons in the house , and concurrers in the contrivance , this ancient and excellent law would easily be elided , and as to the evidences of health they are no way relevant , neither are any private acts , but the law hath justly determined that the disponer must appear publickly in the solemnest meetings , that thereby it may be known that he is able to abide the air , and that matters of this importance be not probable by two picked out prepared witnesses , but that the samine be cleared by the whole witnesses of a kirk or mercat , which cannot all be brybed , and no few witnesses dare adventure to depone against that common knowledge , so that no private or domestick acts in or about the house can be equivalent to coming to kirk and mercat . and as to the second defense , that the defunct came out to kirk and mercat , it ought to be repelled , because the pursuer offers to prove that he was supported . the pursuer answered , that the reply was not relevant , unlesse it were condescended quomodo supported , and that it was by upholding the defunct under the oxter , or by the elbow , but it is not relevant to alleadge that the defunct took any of the company by the hand , or that they took him by the hand , especially if it was in rugged or uneven places , in respect of the defuncts age , and that it is offered to be proven that he was ordinarly accustomed to take these who walked with him by the hand in such places , and for this there was alleadged a practique lately done by the lords betwixt pargilleis and pargilleis , whereby a disposition by pargilleis was sustained , because he came to the mercat of calder , albeit he was helped to and from his horse , and up and down the stairs , and that he was not able to tell money , and was never at the kirk thereafter : and likewise a practique in anno . was alleadged , whereby graham merchant in edinburgh having made a disposition to his wifes daughter , the same was sustained , because he lived a long time and did his affairs in the house , and wrote the disposition , being two or three sheet of paper , all with his own hand , which is found sufficient though he did not go out to kirk or mercat . the pursuer answered , that the reply was most relevant , even though the supporting were only by the hand , for albeit where there were reiterat acts of going abroad without design , such circumstances would not be noticed , yet where the going abroad was so near to the disposition , and evidently done to validate the same , it hath been ultimus conatus naturae , and hath not been of custom , but of necessity , so that when such an attempt is made of design , if the disponer have not so much strength as to walk without the help of any hand , it infers clearly the weaknesse and continuance of the disease . the defender repeated his alleadgeance , a●d offered to prove that not only the defunct went out to kirk or mercat , but that he went freely by his own strength , no body touching him . the lords being desirous that neither party should have the sole probation by picking out such witnesses as made most for them , but that all the witnesses might be adduced , did before answer appoint either party to adduce witnesses to instruct the defuncts condition the time of the disposition , and thereafter , and anent the manner of his going abroad , and there being a great multitude of witnesses adduced by either party , the lords considered the relevancy and probation both together , by which the lords found that the reason of reduction was relevantly lybelled , and that it was sufficiently proven , that the defunct had contracted the disease whereof the died before the disposition ; and as to the defense and reply the witnesses proved all clearly , that he was supported to the kirk , and from it , and that he fell a swoond in his return , but the lords found it not necessare that the defunct should both go to kirk and mercat unsupported , but that either was sufficient , but that where both was attempted shortly after , and upon design , the manifest failing in the attempt in going to the kirk , did much weaken the prior attempt in going to the mercat : as to which the lords did consider that the going free to the mercat behoved to include the free going to the mercat place , and returning back from the same , not being supported in any place of the way , so that albeit many witnesses deponed the defunct walked freely , none being by him in some parts of the way coming and going , there was no number of witnesses that proved his walking freely all the way coming and going , even while he was within the town , but that many witnesses proved that he was supported , some in the whole way , and some as to several places , some by the oxter , some by the elbow , and most by the hand . therefore the lords found the reply relevant of supporting even by the hand , in any place of the way within the town , whether even or rugged , and found the same sufficiently proven , and therefore reduced the disposition , albeit the defuncts custom to take those who walked with him by the hand was also proven , whereunto they had no regard , this going to mercat being so soon after the disposition , and so evidently of design to validat it , and the defunct never having gone out after , except to the kirk when he was supported , and fell a swoond ; and as to the practique , that in anno . was not produced , but it was in consideration of a sum left to the church by that disposition , and was generally cryed out against by all persons , yet una hirundo , &c. and as for pargilleis case , the lords perused the whole debate and testimonies , and found that pergilleis lived near a mile from calder , and that being an old guttish man he was accustomed to be helped to and from his horse , and that he rode to the town , but that he lighted then and walked freely through the mercat , and up a brae to my lord tarphichans house , and returned again to his horse without any help , either by the hand or otherwise , and regarded not that he was helped up and down stairs , or to and from his horse , which the law doth not require , but only the going freely from the entry of the town to the mercat place , and back again unsupported . the lords did also find none of the private acts alleadged upon relevant to prove health , or equivalent to going to kirk or mercat , and that there was no necessity to condescend on particular diseases . ioachim burnmaster contra captain dishingtoun . iune . captain dishingtoun having obtained a decreet before the admiral , adjudging a ship taken by him at sea the time of the late war with holland , whereof ioachim burnmaster was master , the said ioachim raised reduction of the said admirals decreet , on these reasons , that his ship and whole goods did belong to the subjects of sweden , his majesties allies , and who had a particular treaty with the king , bearing expresly , that no person should be seised who had a swedish pass , in the terms particularly exprest in the treaty ; which pass the pursuer had , and produced when he was taken , and yet he was declared prize , upon pretence that three of his company were hollanders , albeit the treaty bears expresly that where such a pass is found ulterius nihil exigatur , & in bona aut homines nullo modo inquiratur , and upon pretence that the oaths of the master and company were contrare to the pass , and proved that there were other owners then these in the pass , and other goods , viz. . hogs-heads of wine , and a quantity of wine and brandy wine , and paper ▪ and that the ship in question was not then bought by the swedes , nor did not go to , or from the parts mentioned in the pass , albeit none of these saids points be material ▪ nor did infer that the ship , or loading , or any part thereof did belong to the kings enemies , but did belong to the swedes his allies and confederats , so that albeit they had had no pass , or an unformal pass , their goods could not be taken from them , there being no article in the treaty declaring , that the not having a full and formal pass should make such ships prize , but only that the having thereof should keep them from all question or inquiry . the defender alleadged absolvitor , because the decreet of adjudication was justly and warrantably given , for contrivances the time of the war being most ordinar ▪ the dutch did frequently palliat their trading under the pretence of the kings allies ; and in this case it is evident , that the time of the pass this ship was in holland , of a dutch build belonging to an hollander residing there , and no pretence of buying the same by a swede for a long time after , as appears by the vendition produced , which does not bear that the ship was sold to any swede , or for their use , but to a swedish factor in holland , without mentioning to whose use , and so is justly suspect to have been for an other dutchmans use , especially being found navigable with three dutchmen in the company , and no swede hath ever yet declared upon oath that this ship and goods belonged to them , for by a certificat of the swedish chamber of commerce produced , that two swedes did declare that they intended to buy a ship in holland , called the blew lilly , and yet the pass of the same date bears , that they swore that the blew lilly belongs to themselves and no other , and by the vendition the name of the ship was not the blew lilly , so that all hath been but a contrivance , and that there is nothing produced that necessarly evinces that the ship and goods belonged to the swedes only , and seing the pass is so palpably false in all the substantial points required by the treaty , and by the oath of the pursuer himself , he cannot cloath himself with the treaty , which he hath so grossly transgressed , nor hath he adduced sufficient proof that the ship and goods belonged to the swedes . and whereas it is alleadged , that the being sailed with hollanders is no ground of seisure by the treaty , the same is opponed , which in the next article to that alleadged upon for not enquiring in the men and goods , bears that seisure shall not be made where such a pass is nisi gravis suspitio subsit , and there could be no better ground of suspition , then that the master when he was taken acknowledged the contents of the pass not to be true , or conform to the treaty , and that a considerable part of the company were dutches , and as for any letters produced , they are impetrate since the war upon misinformation . the lords adhered to the decreet of adjudication , and assoilzied from the reduction , and found the verity of the pass canvelled by the testimonies of the skipper and company , and the certificat , and that most of the material requisits in the passe were wanting , and no sufficient evidence that the whole ship and loadning did truely belong to the swedes . beidmen of the magdalen chappel contra gavin drisdail . iune . . ianet rud having mortified an yearly annualrent of a merk scots , out of a tenement of hers to the poor beidmen of the magdalen chappel ; they pursue gavin drisdail , now heretor of the tenement , for poinding of the ground ▪ who alleadged absolvitor , because he has bruiked the tenement free of that annualrent for more then fourty years , so that the right thereof is prescribed . it was answered , that prescription runs not against the poor , and things mortified for pious uses . dly , they are in the same condition with minors , having overseers chosen yearly . dly , the years of prescription must be accompted , abating the times of pestilence and war , when there was no session . it was answered , that prescription was the great security of the leiges , and hath no exception by the act of of parliament , but only minority , and neither by the civil law or our custom , is the time of prescription compted per tempus utile , but per tempus continuum , in regard of the length of the longest prescription . the lords sustained the defense of prescription , and repelled the replyes . brody of lethim and the laird of riccartoun contra the lord kenmure . iuly . . brody of lethim as having right from riccartoun , having several years agoe obtained decreet against the tennents of the mains of kenmure , thereafter upon a motion for the viscount of kenmure the decreet was stopped , and now the pursuers desire out their decreet . it was alleadged that the cause having lyen over several years , must be wakened . it was answered that there being a decreet pronunced , there was no more process depending , and so needed not be wakend . it was answered , that a decreet though pronunced , not being conditional to a day , but being absolute , and thereafter stopped , in respect the stop takes off the decreet , the process is in statu quo prius . it was answered , that the stop doth not recal the decreet , but only hinders the extract thereof till the supplicant be further heard , and it is his part to insist in the bill , and that it would be of very evil consequence if stopped decreets were recalled , for then not only wakening would be necessar , but in case the parties should die , transferance should be raised , and seing wakenings are not requisite in concluded causes , much less after sentence is pronunced . the lords found no necessity of wakening , but allowed the defender to propone what further he had to alleadge . laird of balfour contra mr. william dowglasse . iuly . . the earl of airlies estate being apprized by mr. william dowglasse since . after the legal was expired mr. william was infeft , and after his infeftment , the laird of balfour apprized the same land , and thereupon pursues the tennents for mails and duties . it was alleadged for the first apprizer that he must be preferred ; first , because he has the only right , having an apprizing expired , and infeftment thereon , before the pursuers apprizing was led , so that eo momento that he was infeft upon his expired apprizing , the common debitor was fully denuded , and there was no right of reversion , or any other in his person that could be apprized thereafter . it was answered , that by the act of parliament . between debitor and creditor : it is provided that all apprizings led within year and day of the first effectual apprizing shall come in therewith pari passu , and therefore the pursuer having apprized within year and day after the first apprizers apprizing became effectual by infeftment , he must come in with him pari passu by the said act , which makes no difference of expired , or unexpired apprizings , and by that same act the debitor is not so denuded by the expiring of the legal and infeftment , but that year and day is still allowed to subsequent apprizers , which in effect is a prorogation of the legal as to concreditors . it was answered , that the act of parliament is opponed , bearing that apprizings before , or within year and day after the first effective apprizing shall come in pari passu , as if one apprizing had been led for all , which necessarly imports the calculation of the year to be from the date of the first effective comprizing and not from the date of the infeftment or diligence , for the coming in as if one apprizing had been for all , must relate to the decreet of apprizing , which as it is clear by the letter of the statute , so also by the narrative and motive thereof , bearing that creditors did not know the condition of their debitors estate , which might be apprized before they could do diligence , whereas before they had only the benefit of reversion , for remeed whereof the parliament brings in all apprizings that are before , or within a year , after the first effectual apprizing , which before would have carried the sole propert● , and factione juris , states all these apprizings as led in one day , so that the remeed is sufficient , by having a full year after the date of the apprizing , and correctory statutes are to be strictly interpret , and if the date of the diligence be the rule , an apprizing after twenty year might be brought to admit a new one deduced after all that time , and not only so , but the mails and duties would belong proportionally to the last apprizer for twenty years before it was led . it was answered , that the year indulged by this act of parliament to concreditors , must be from the time the apprizing is effectual , for the words of the statute bears , all apprizings before , or within a year after the first effectual comprizing &c. so that the year must not run from its being an apprizing , but from its being an effectual comprizing , and so from the infeftment or diligence , neither is the inconvenience shunned otherwise , for the only way then known for publication of real rights was the register of seisings , and not the register of the allowance of apprizings , which is only made necessar by an act since , and it is very easie to make simulate executions of apprizings , by taking away the copies of denunciation of the ground , and citation at the dwelling house of the debitor , but if once a seising be in the register , all provident men take notice thereof , and albeit a charge be sufficient in stead of a seising which is not registrat , yet the ordinar way of compleating apprizings , which the law notices is infeftment , and seing apprizings are now rigorous rights , carrying any estate without consideration of the value , acts correctory of them ought to be extended ex aequo , and the more wayes concreditors have for getting notice of the apprizing of their debitors estate the better , neither are the evil consequences upon the other hand of any moment , it being the first apprizers fault ( if not his fraud ) that he obtains not infeftment , or does diligence therefore , for he may of purpose lye dormant , not only till year and day run , but untill the legal expire , and thereby cut off the diligences of all other creditors , as in this very case the irredeemable right of an earldom shall be carried for . pounds , and all the other creditors excluded , so that the apprizing is so far from making the case better , that it makes it much worse , as latent and fraudulent , for it cannot be imagined that if the second apprizer had known that the first apprizing was led , but that he would have used diligence within the year , at least within the legal , for so soon as he saw a seising in the register , he did immediatly apprize . the lords preferred the first apprizer , and excluded the second , and found that the year is to be reckoned from the date of the first effectual apprizing , and not from the diligence , whereby it becomes effectual . in this process the lords sustained this reply , that the first apprizing was to the behove of the common debitor , or his eldest son , and that they would purge the same by payment of what sums were truly payed for it to the apprizer , according to the said act of parliament . without any reduction or declarator . helen hume contra the lord iustice clerk. eodem die . there being a bond granted by the laird of rentoun to helen hume his daughter , obliging him and his heirs to pay the sum to her at her age of ten years compleat with annualrent , so long as she should suffer the same unpayed , and then subjoining this clause , that in case she should die unmarried the bond should be void : whereupon the said helen pursues the lord justice clerk her brother , who alleadged upon the foresaid clause , that the effect thereof must necessarly be , that the said helen should make no voluntare gratuitous right in prejudice of her father or his heirs , that the sum should return if she were not married . it was answered , that this clause not being the ordinar clause of substitution . provision , or return , cannot be understood a suspensive clause , hindring the lifting of the money , neither yet a resolutive clause in case the pursuer marry not , but it can only have the effect of a clause of substitution , that if the pursuer died un-married , and the sum un-uplifted , or disponed ; her fathers heir is preferred to her own heir , or nearest of kin , for the term of payment being her age of ten years , she might then lift the sum , and there is no provision to reimploy it of this tenor , or to find caution to restore , if she were not married . it was answered , that this clause cannot be interpreted as a naked substitution , but as a condition of the bond , equivalent to that which is frequent in provisions of children , and contracts of marriage , that in case the party had no children , the sum should return , which was always interpret more than a single substitution , and to import a condition or obligation against any voluntar deed , or disposition : and though the party be thereby feear of the sum ; yet it imports a limited fee , with a provision to do no deed in the contrair , without a cause onerous : and albeit re-imployment of the sum be not exprest in this bond , it is implyed in the nature of it . the lords found , that seing the bond had a particular term , and no condition to re-imploy : and the question now was only of voluntar dispositions , without causes onerous , whereof there was none at present existent . the lords decerned the sum to be payed to the pursuer , reserving to the defender his reason of preference against any disposition , or assignation , without a cause onerous , if the same should happen to be made . iohn mccrae contra lord mcdonald . iuly . . john mccrae as heir to john mccrae his goodsire , pursues the lord mcdonald , as heir to his goodsire , for payment of a bond of . merks in anno . granted by the defenders goodsire to the pursuers goodsire . the defender alleadged absolvitor , because the bond is prescribed . the pursuer replyed , that the prescription was impeded , partly by minority , and was interrupted by a citation at his instance , against the lord mcdonald . it was answered , that the first citation made , was null , being at the mercat cross of the shire , by dispensation , upon an unwarrantable suggestion , that there was not safe access to him , which has been past of course by the servants of the bill-chamber , whereas they ought specially to have represented the same , and the consideration thereof to the lords ▪ and so being surreptitiously obtained , periculo petentis , it can import no interruption . dly , the execution at the mercat cross , bears no leaving , or affixing of a copy . and as for the second citation , it is but one day before the fourty years be compleat , which being so small a time , is not to be regarded in prescription , nam lex non spectat minima , and it is also null , though it be done personally , as falling with the first execution . the lords found that the first citation was sufficient to interrupt prescription , although it had not been formal , through want of a copy , and declared they would sustain the process thereupon , if the leaving of a copy were added to the execution subscribed by the messenger , and abidden by as true . they found also , that the second citation was sufficient interruption , though within a day of compleating the prescription , which was to be reckoned punctually de momento in momentum . strachan contra gordouns . iuly . . strachan pursues gordouns for a spuilzie of four oxen taken away from them by violence , being then in their plough by george and william gordouns and others . the defenders alleadged absolvitor , because they offered them to prove , that the oxon were their proper goods , and were stollen from them , and that thereafter they were found straying upon the pursuers ground , and that they were proclaimed as waith-goods by the sheriff , and that by the sheriffs order direct to his majors , the defenders intrometted with them , and so did no wrong . the pursuer replyed , that no way granting the verity of the defense , the same ought to be repelled , because they having the oxen in question , in their peaceable possession four months , they ought not to have been disturbed in their peaceable possession , in this order , without the citation or sentence of a judge : so that the defenders having unwarrantably and violently dispossessed them , spoliatus ante omnia restituendus , and they may pursue for restitution as accords ; but the pursuers are not now obliged to dispute the point of right . dly , if need beis , they offer to prove that they acquired the goods from the laird of glenkindy their master , so that being possessors bona fide cum titulo , they could not be summarly spuilzied , or dispossessed : for albeit stollen or strayed goods may be summarly recovered , de recenti , or from the thieves ; yet cannot so be taken from a lawful possessor , acquiring bona fide . the lords found the defense relevant , and admitted the same to the defenders probation : and found also that part of the reply relevant , that the pursuers did possess bona fide , by an onerous title , relevant to elide the defense though it were proven , as to the restitution of the oxen to the pursuer , and the ordinar profits thereof , but not the violent profits , for they found the sheriffs warrand being instructed , would excuse from the violent profits : but they found that the defenders naked possession , though for four months , by having the goods in the plough , would not infer restitution or spuilzie , but that the goods being stollen or strayed , might be recovered summarly . laird of polmais contra the tradsmen of striveling . eodem die . the tradsmen of striveling having charged and troubled the laird of polmais tennents , about st. ninians kirk , upon the act of parliament , prohibiting workmen to exercise their trades in the suburbs of royal burrows , polmais raised a declarator for freeing of himself and his tennents of the saids charges , and that they might freely exercise all their trades , especially about the kirk of st. ninians , which is about a mile from striveling , which being dispute , and it condescended upon , that st. ninians being a mile from striveling , could no ways fall under the act of parliament , and could not be interpret a suburb , being no ways adjacent to the town . the lords found the declarator and condescendence relevant , and decerned . andrew and adam stevins contra cornelius neilson . iuly . . andrew stevin having made a disposition of his lands to cornelius neilson his good-brother , and thereafter another disposition to his brother adam stevin . they pursue a reduction of cornelius disposition . first , as being upon trust , and only for the security of a thousand merks , whereanent , it being debated anent the manner of probation and witnesses , ex officio , being craved for clearing the trust by the writer , witnesses and communers . the lords refused to sustain the same , till first they considered the other reason of circumvention , which was libelled thus , that the disponer was a lavish , weak person , that the disposition was elicite by his own good-brother , for a thousand merks only , and that he keeped him privatly from the access of all other friends , and drank him drunk , in which condition he was when the disposition was subscribed , and that it was not read unto him , and it being excepted upon a ratification , some weeks after at another place , and the reason of circumvention repeated on the same terms against that ratification . the lords ordained witnesses to be examined ex officio , upon the reason of circumvention as to both , and specially , whether these writs were read at the subscribing , and whether the subscriber was drunk , and whether he was thereby insensible or disordered in his reason , or what were the motives induced him to subscribe . sir george maxwel contra maxwel of kirkonnel . eodem die . sir george maxwel of nether pollock , pursues maxwel of kirkonnel , for payment of a debt of his fathers , as behaving himself as heir by intromission with the mails and duties of his fathers lands of kirkonnel . the defender alleadged absolvitor , because his father was denuded , and an appryzer infeft , and so could have no heir in these lands . it was replyed , that notwithstanding of the appryzing , the same remained redeemable , and the defunct remained in possession , and the defender his appearand heir , did continue his possession , and so has behaved as heir ; and though he had had a right or warrand from the appryzer , yet during the legal , it is immistio , having no other cause nor title . it must be presumed to be granted to him as appearand heir , much more where he hath no warrand from the appryzers . dly , it is offered to be proven the appryzers were satisfied by intromission , and what is wanting , the pursuer offers to satisfie the same at the bar ; for by the act of parliament . betwixt debitor and creditor , appryzings acquired by appearand heirs , may be satisfied by the defuncts creditors , for the sums they truly payed out by the space of ten years : so that the defender ought to condescend , and depone what he gave out , and to count for his intromission , and what is wanting , the pursuer will pay . the defender answered , that behaving as heir , being an odious , universal , passive title , any colourable ground is sufficient to restrict it to the value intrometted with . and as to the offer to satisfie the defender of the appryzing , to which he has right . it is not competent , hoc ordine ; for by the act it is only introduced in favours of other appryzers , and the pursuer is a meer personal creditor , without any appryzing . it was answered , that the narrative of that part of the act , bears it expresly to be in favours of creditors , and though the subsumption is only applyed to appryzers , yet it is not exclusive , and by the common custom , satisfaction of appryzings by intromission , or present payment , is ever received by exception or reply . the lords found that behaving as heir is sufficiently elided by any right or warrand from the appryzers , as to intromission thereafter ; or that if the defunct died not in possession , but that the appryzers had then , or thereafter attained possession , before the intromission . but found that the appearand heirs continuing in the defuncts possession without a warrand , did infer behaviour , and that the offer to purge the appryzing at the bar , was competent , hoc ordine ▪ without burdening the creditors with the expenses of appryzing , to make the appearand heir lyable for what he intrometted with ; and that the appearand heir should assign the appryzing , whereupon the creditor might continue possession till he were satisfied of the sums now payed out . robert lermont contra the earl of lauderdail . iuly . . sir alexander swintoun having disponed his estate of swintoun , to iohn swintoun his son , in his contract of marriage , there is a clause therein , on thir terms , that it shall be leisom to the said sir alexander , to affect and burden the estate with infeftments of wodset or annualrent , for the sum of fifty four thousand merks , for his creditors and bairns ; thereafter sir alexander grants a bond of . merks to the laird of smeatoun , and declares it to be a part of the fifty four thousand merks , whereof . merks being now in the person of robert lermont . he pursues the earl of lauderdail , as now come in the place of iohn swintoun by his foresaulture , to pay the sums , or at least , that the lands is , or may be burdened therewith , because the forefault persons infeftment being qualified with the said reservation , it is a real burden affecting the estate , and swintouns infeftment being publick , and thus qualified and burdened , was as to this point , the creditors infeftment , and his being forefault , could not prejudge the creditors , as to this real burden , in a publick infeftment , granted by the king. the defender alleadged , that the libel was not relevant , for the reservation being a meer power of burdening by infeftment , it cannot be pretended that the forefault persons infeftment is sufficient therefore . but seing swintoun made no use of that power , albeit it might have been sufficient against swintoun the contracter , or his heirs : it cannot militate against the king or his donator , to whom the fee returns by forefaulture without any burden , but what the king has consented to by publick infeftments or confirmations : and though old swintoun had given the pursuer a base infeftment , it would have fallen by the forefaulture , not having been confirmed , much more when there is no infeftment . the lords found the libel not relevant , and assoilzied . the heirs of mr. thomas lundy contra earl of southesk and others . eodem die . the estate of sir iames keith of powburn being appryzed by several of his creditors , they now compet for preference . mr. thomas lundie who led the first appryzing , was more then year and day before the rest , and thereupon his heir craved preference . it was alleaged the apprizing was null : first , because it proceeded upon a bond , carrying a clause of requisition , and the claim of the appryzing , did not libel thereupon , so that albeit it be now produced and done debito tempore : yet the claim was not sufficiently instructed without it . dly , the messenger did unwarrantably continue the court of appryzing till another dyet , without any necessar cause , which was never accustomed before , and is of very evil consequence , for thereby messengers at their pleasure may continue , and weary out the persons concerned , who might propone defenses , or produce suspensions , and are not obliged to attend the pleasure of the messenger . dly , the appryzing was at the beitch-hill of cowper , which is not within the shire where the lands ly : and albeit there be a dispensation in the letters , that ought not to have been granted , because appryzings should only be in the head burgh of the shire , or in communi patriâ at edinburgh , but especially seing the warrand was obtained from the lords of course , among the common bills , without being read or considered , and so is periculo petentis , and cannot prejudge the more formal diligence of other comprizers , especially seing lundy appryzed of new for the same sums , which will come in pari passu with the rest , being within year and day . it was answered , that it is inherent in all jurisdictions to continue processes to new dyets , having keeped the first dyet , and that the messenger by the letters is constitute sheriff , and there is no question but sheriffs might , and did prorogate dyets in appryzings , and the letters bears warrand to fix courts , one or more , and for the continuation , it was but to the next day , in regard of a great speat , the appryzing being upon the hill in the open field , the time of rain , and it being m●dica mora , to the next day , which will give no warrand to an arbitrary continuation by messengers , to what interval they please . and as for the place , the lords by dispensation may appoint what place they see convenient ; and albeit the dispensation had been of course , and that therein the clerks had failed , yet the parties obtainers of such dispensations are secure thereby , and ought not to be prejudged . the lords sustained the appryzing , and found the requisition now produced sufficient , and found that the continuing of the dyet for so short a time , to be no ground of nullity , unless the competitors could alleadge a special cause , that they did or might alleadged , whereby they were prejudged by leading the appryzing the second day , rather than the first . the lords did also sustain the dispensation of the place ; and having perused the practique produced , at the instance of the lady lucia hamiltoun , anent an appryzing , led at glasgow by dispensation : they found that the lords did not annul the appryzing on that ground . but the lords ordained , that no bill bearing dispensation , should pass of course in time coming , but upon special reasons , to be con●idered by the lords , or the ordinary upon the bills ; and that messengers should not continue the dyets in appryzings , but upon necessar causes ; and ordained an act to be insert in the books of sederunt for that effect . adam gairns contra isobel sandilands . eodem die . adam gairns pursues isobel sandilands , as representing her father , to pay a debt of his , and specially as behaving as heir , by uplifting the mails and duties of a tenement , wherein the father died infeft , as of fee , in so far as by contract of marriage betwixt thomas sandilands her father , and iohn burn , and isobel burn his daughter , the said iohn burn provided the said tenement in thir terms , viz. after the obligements upon the husbands part , it follows thus ( for the which cause the said iohn burn binds and obliges him to inseft thomas sandilands , and the said isobel burn , the longest liver of them two in conjunctfee or liferent , and the heirs between them , which failzying , the said isobel her heirs and assigneys whatsomever ) by which provision her father being feear and infeft , the defender is lyable . the defender alleadged absolvitor , because by this provision of the conjunctfee of this tenement , isobel burn the defenders mother was feear , and her father was but liferenter , in respect the termination of the succession is to the mothers heirs , yea , and to her assigneys , which necessarly imports , that she had power to dispone . and it is a general rule in succession of conjunct-feears , that that person is feear upon whose heirs the last termination of the tailzie or provision ended , especially in this case , where the right of the tenement flowes from the womans father . so that if there were any doubtfulness , it must be presumed , that the fathers meaning was to give the fee to his daughter , having no other children : neither is this land disponed nomine dotis : and the defender stands infeft by precept of favour , as heir to her mother , and thereby bruiks bona fide , and her infeftment must defend her till it be reduced . the pursuer answered , that by the provision , the husband was feear , and the wife was only liferenter , because though the last termination doth ordinarly rule the fee : yet this is as favourable a rule , that in conjunct provisions , potior est conditio masculi , and though the termination be upon the wifes heirs whatsomever , yet they are but heirs of provision to the husband , and he might have disponed , and his creditors may affect the land , which holds in all cases , except the lands had been disponed by the wife her self , without a cause onerous . but here the husband is first named , and it is but a small parcel of land , beside which , there is no other tocher ; so that though it be not disponed , nomine dotis , yet being disponed ( for the which causes ) it is equivalent , and in the same contract , the husband is obliged to provide all lands that he shall acquire , or succeed to , to himself and his wife , the longest liver of them two in conjunct-fee or liferent , and to the heirs between them , which failzying , the one half to the husbands heirs , and the other half to the wifes heirs and their assigneys , and it cannot be imagined , that the meaning of these clauses was , that the fee of the mans conquest and succession , should not be all constitute in himself , but that the wife should be feear of the half . and in like manner , the fathers meaning is clear , because the clause bears not only in contemplation of the marriage , but for sums of money received by the father , which albeit left blank in the contract , yet it cannot be thought , that in such a narrative , he intended to make his daughter feear . and as for the adjection of her assigneys , it is only ex stilo , for assigneys is ever added after the last termination of heirs , and does always relate to all the feears , and would extend to the heirs of the marriage , their assigneys as well , as to the wifes heirs failing them . likeas , assigneys isin the same way adjected to the clause of conquest , wherein there is no ground to imagine that the wife is feear : and both bears the husband and wife to be infeft in conjunct-fee , or liferent . the lords found that by this provision , and infeftment thereon , the husband was feear , and the wife only liferenter , and found no necessity to reduce the defenders infeftment , as heir to her mother , not proceeding upon a retour , but a precept of favour , but they found that the dubiousness of the case was sufficient to free her from the passive title of behaviour , but only for making forthcoming her intromission , quoad valorem : but it was not debated nor considered , whether as bonae fidei possessor , by a colourable title , being infeft as heir to her mother , she would be free of the bygones , before this pursuite . marjory murray contra isobel murray . eodem die . umquhil murray having infeft isobel murray his wife in two tenements , did thereafter by his testament , leave a legacy of a thousand pounds to their daughter marjory murray , and gave other provisions to the said isobel his wife , and provided his daughter to the two tenements : which testament his wife subscribes , and after his death confirms the same , but under protestation , that her confirmation should not prejudge her own right . the daughter pursues for the legacy of . pounds , and for the rents of the tenements , and alleadges that the . pounds must be free to her , without being abated by implement of the mothers contract ; and likewise the two tenements by her mothers consent and subscription . it was answered , that the mothers subscription was a donation betwixt man and wife , for being to the mans daughter , whom by the law of nature he is obliged to provide , it was all one as if it had been to himself . dly , her subscription was obtained in luctu , her husband being near his death , and at his desire , ex revèrentia maritali , and the confirmation can be no homologation , because of the protestation foresaid . it was answered , that it was protestatio contraria facto : and the wife had no necessity to do it , for she might have confirmed her self executrix creditrix . the lords found that there was here no donation between man and wife , but in respect the parties had not debated the effect of reverentia maritalis , ordained them to be heard thereupon , and found the protestation sufficient to take off the ratification , or homologation by the confirmation , and found the legacy of . pounds to be left only according to the nature of a legacy , out of the defuncts free goods , and would not exclude the relict , or any creditor . sir david dumbar of baldune contra sir robert maxwel . iuly . . sir david dumbar of baldune being infeft upon several appryzings in the estate of kirkcudbright , pursues reduction and improbation against sir robert maxwel of orchartoun , of all rights of the said estate , granted by baldune himself , or by umquhil iohn lord kirkcudbright , or thomas lord kirkcudbright , or any of their predecessours , to whom they may succeed jure sanguin●s , to the defender . it was alleadged no certification of any writs made by the predecessours of iohn or thomas , lords kirkcudbright , to whom they might succeed , jure sanguinis , because that can be no active title to the pursuer ; for if iohn lord kirkcudbright himself were pursuing a reduction , he would not have a sufficient active title , to reduce the writs made by any person to whom he was appearand heir , unless he had been actually heir : so neither can the pursuer his appryzer , have further interest then lord iohn himself : for albeit the clause is relevant passive against the defenders , to produce all writs made to them , or to their predecessours , to whom they may succeed , jure sanguinis , because reductions and declarators are competent against appearand heirs , without any charge to enter heir : yet they are not competent to appearand heirs , till they be actually entered . it was answered , that the pursuer being publickly infeft , has good interest to call for all writs that may burden the land , to the effect he may improve the same , as an impediment hindering his infeftment : but specially an appryzer who has not his authors rights , and that this has been always the stile of the general clause in improbations . the lords found the defense relevant , and would grant certification against no writs , but such as were granted by person , whose infeftments and retours should be produced before extract . the defender further alleadged , no certification against any rights made by thomas or iohn lords kirkcudbright , to the defender , because no person was called to represent them : whereas it is known that george , lord iohn's nevoy , is both appearand heir-male and of line , and that this has been the common defense always sustained . the pursuer answered , that the only ground of this defense , is when defenders have warrandice from their authors ; and therefore the pursuer ought to call their authors , that their rights in●erring warrandice upon them , may not be reduced , they not being heard : but here the defender produces no right from lord iohn , or lord thomas , and so the alleadgeance is not relevant against the production , but only in case such rights be produced , it will be relevant , when the pursuer insists to reduce the writs produced . the lords repelled the defense , and reserved the same , if any right should be produced by the defender , bearing warrandice . laird of milntoun contra lady milntoun . eodem die . the laird of milntoun having insisted in an improbature against the lady milntoun , for annulling a decreet of divorce , obtained at her instance against iohn maxwel her husband , the relevancy whereof was discust upon the . day of ianuary . and only the manner of probation of the corruption of witnesses , by prompting them how to depone , or by promising , or giving them bribes , or any good deed to depone , more than their ordinar charges , remained undiscust . it was alleadged , that such reprobators were only probable by writ , or oath of the party adducer of the witnesses , post sententiam latam , for reprobators upon corruption , albeit they might be proven before sentence , by witnesses above exception as to giving of bribes , which was a palpable fact , yet not then , by prompting , or promising , or any words emitted , which are only probable by the witnesses adduced , or by the oath of the adducer : neither in that case , if the witnesses adduced be above all exception , can witnesses be adduced against them , but only their own oath , or oath of the party : so that any party that quarrels vvitnesses by reprobators , ought to do the same after they are adduced ▪ and before sentence ; but if sentence be once pronunced , and extracted , it is res judicata , quaepro veritate habetur : and if reprobators upon corruption , be used after the sentence , upon corruption ; the same can only be probable by the oath of the adducer : and neither by the oath of the vvitnesses adduced , who cannot annull their own testimony , post jus quaesitum parti , nor by other vvitnesses : and if it were otherwise , the greatest inconveniencies would follow : for then the sentence and securities of the people , founded thereon , might for fourty years space be quarrelled upon pretence of corruption , and singular successors acquiring bona fide , might be outed of their rights : as also , there shall be no termination of process ; for as the first sentence may be canvelled by reprobators against the testimonies , whereupon it proceeded : so may the second be canvelled in the same manner by a second reprobator , and so without end . and seing the law of this kingdom hath been so jealous of probation by witnesses , that it hath not allowed sums above . pounds to be proven thereby : so witnesses should not be admitted in reprobators , especially after sentence . it was answered , that reprobators being a necessar remeed against the partiality and corruption of witnesses : and the question being only , the manner of probation , by the law of god and all nations , witnesses are the general mean of probation , and so ought to take place in all cases , where law or custom hath not restricted the same , and it cannot be pretended , that ever there was one decision of the lords finding reprobators only probable scripto vel juramento : and it being acknowledged , that witnesses are competent , ante sententiam , there is neither law nor reason to refuse the same , post sententiam , especially with us , where the names of the witnesses are never known till they be produced , neither is their testimonies published , or ever known before sentence : so that the other party can have no interest to quarrel their testimonies , or know them before sentence , and so reprobators shall never be effectual , unless proven by the oath of the party , that hath corrupted them , which is as good as absolutely to refuse reprobators ; for it cannot be imagined that a party will corrupt witnesses , and not resolve to deny it upon oath . and as ●o the inconvenience to singular successors , the oath of the author may be as hazardous to them as witnesses : and if the acquirer of the sentence be denuded , if in that case , even their oath be not receivable , it is easie to evacuat all reprobators . and as for the inconvenience of perpetuating processes , that holds , whether witnesses be receivable in reprobators before sentence or after , and if admitting of witnesses be so qualified , that it be only when the witnesses in the first sentence , are not above exception , and the witnesses in the reprobators above all exception , and that it be in a palpable fact of receiving bribes , and recently only after sentence , and with a liberty to the obtainer of the sentence , to astruct the same by other witnesses , or evidences , as in improbations ; for reprobator is a kind of improbation , there can be no hazard of multiplying reprobators , but this inconvenience , if it were relevant , would not only take away all reprobators , but all reductions , for the decreet reductive may be quarrelled by a second reduction , and that by a third , and so without end . but the inconvenience on the other hand is far greater , that all parties will be sure to corrupt vvitnesses , if they do but resolve not to confess it , and vvitnesses will be easie to be corrupted , being secured against all redargution : and whereas it is pretended , that witnesses with us prove not above . pounds , that is only where vvrit may , and uses to be adhibite , in paenam negligentium : but otherwayes vvitnesses are adhibite in the greatest matters , as improbation of vvrits , probation of tenors , extortion , circumvention , spuilzies , ejections , and intromissions of whatsomever kind or quantity . the lords found reprobators upon corruption , and prompting of vvitnesses , only probable scripto vel juramento , after sentence , this was contrair the opinion of many of the lords , and was stoped till a further hearing at the bar. earl of hume contra the laird of rislaw . iuly . . the kirk of fogo having been a kirk of the abbacy of kelso , when the same was erected ; this kirk was reserved in favours of the earl of hume , and disponed to his predecessors , whereupon he pursues the laird of rislaw for the teinds of his lands , as a part of the teinds of fogo , who alleadged absolvitor , because his predecessors obtained tack of their teinds from the minister of fogo , as parson thereof , which tack , though it be now expyred , yet he bruiks , per tacitam reloca●ionem . the pursuer replyed , that his tacite relocation was interrupted by inhibitions produced . the defender answered , that the inhibitions were only at the instance of the earl of hume , who was never in possession of his teinds , whose right he neither knew , nor was obliged to know , and the earl ought to have used declarator against the defender , and the parson of fogo his author ▪ which was the only habile way , and not the inhition . the lords sustained the processe upon the inhibition , and restricted the spuilzie to wrongous intromission , unless the defender could propone upon a right in the person of himself , or his author , that could either simply exclude the earls right , or at least give the defender ▪ or his author the benefite of a possessory judgement , and put the earl to reduction or declarator . vvhereupon the defender alleadged , that the parson of fogo was presented by the king , as parson of fogo , and did so bruik by the space of thirteen years , which was sufficient to defend him , in judicio possessorio . it was replyed , first , that the minister cannot pretend the benefit of a possessory judgement , because his possession was not peaceable , in so far as it was within the thirteen years , it was interrupted by the pursuers inhibitions . the defender answered , that he offered to prove thirteen years possession , at least seven years peaceable possession , before any inhibition , which is sufficient ; for as thirteen years possession makes a presumptive title , decennalis & triennalis possessor non tenetur docere de titulo : yet where the defender produces a title , viz. a presentation as parson , he is in the common case of a possessory judgement upon seven years possession . the pursuer further replyed , that albeit the seven years were peaceable , and sufficient for a possessory judgement ; yet the defender cannot maintain his possession by tacite relocation , for he having no positive right in his person , his tack being expired , he can only maintain his possession upon his authors right , as parson , and so can be in no better case than his author , who if he were compearing , not pleading the benefite of a possessory judgement , he would be excluded by this reply , that he had acknowledged the earls right , and taken assignation from him to the tack-duty , due by the defender , which , though it would not be sufficient after the defenders tack , to exclude the same , if it were not expired , yet it is sufficient against his tacite relocation , which can only subsist , while his author hath right and possession , and being but a presumptive continuation of the right , it is easily taken away by any deed of the author . it was answered , that tacite relocation being introduced by law , was as strong as a prorogation , and continuation of the tack , which could not be prejudged by any posterior deed of the parson . the lords found the defense upon the parsons right cled with seven years peaceable possession relevant in judicio possessorio , to defend the defenders tacite relocation , but found the reply relevant , that the parson had accepted assignation from the pursuer , to make the defender lyable for the ordinary profits , after the assignation , and after the first inhibition , but only for the tack-duty till the first inhibition , and found that the tacite relocation was not in a like case , as if the defender had a tack , or prorogation . andrew harlaw contra agnes hume . iuly . . andrew harlaw having obtained decreet against agnes hume , as executrix to her husband : she suspends and raises reduction on this reason , that the inferiour judge did wrong in decerning her , being only executrix creditrix , as being lyable for the whole inventar , because by the law and custom of this kingdom , executors creditors , who confirm only for obtaining payment of their debt ▪ are lyable for no more but what they intromet with above the debt due to them , and are not lyable for further diligence as other executors : yea it was found upon the . of iune . observed by dury , that an executor having no interest , was not lyable for diligence , but only to assign in the case betwixt nivin and hodge . it was answered , that executors creditors are lyable for intromission and omission as other executors , because they accept an office , and exclude others who would be lyable for diligence , and they have no more advantage , but that they are preferred to others as being creditors , and may pay themselves in the first place , and it would be of pernicious consequence , if their negligence should cause the interest of children , though orphants , as well as creditors to perish ; and therefore the lords did justly in anno . in the case betwixt bisket and greig , find an executor creditor lyable for the whole inventar , both for intromission and omission . it was answered , that it hath always been heretofore holden , that executors creditors were not in the case of other executors as to diligence , and that the ordinar remeed was , that creditors might pursue the executor creditor , and thereupon would obtain assignations to any debts in the inventar they pleased , except such as had been uplifted by the executor , for their own payment ; upon which assignations they did always pursue for themselves , so that there was neither exclusion nor obstacle to the creditors , but on the contrair , they got assignations , without being at the trouble to confirm : so that this confirmation being many years ago , it were against all reason to make the executors creditors further lyable than they were then esteemed to be , which might also be drawn back against all executors creditors , which are very many . the lords having considered the decision betwixt bisket and greig , that it was upon a recent confirmation , and in favours of a wife for her provision , out of whose hands the executor had recovered the goods , though she was a priviledged creditor : they found that this executor creditor being long before confirmed , was not lyable for diligence , but only for intromission , and resolved to take it into consideration , whether executors confirming in time coming , should be lyable for diligence , and to consider the inconvenience on both parts , and to make an act of sederunt thereanent . countess of cassils contra earl of roxburgh . eodem die . the countess of cassils in her contract of marriage with the lord ker , being provided to . pounds , he did stante matrimonio , provide her to an annualrent of . merks further during her lifetime , and upon his death-bed , he made two testaments of one date , by the one he nominate his father tutor to his children , and left to him the provisions of his wife and children , by the other he provided his lady to . pound more than her contract , and named provisions for his children , but subjoyned a clause , that if his father , who was then in england , returned and made use of the other testament , that this testament should be null ▪ the earl of rox●urgh his father did return , and was infeft as heir to his son , and did ratifie his sons bond of provision of . merks , and by his testament , did expresly mention his sons former testament , and by vertue thereof named tutors to his oyes , and by a bond a●part , gave different provisions to them , from these appointed by their fathers testament , and this earl of roxburgh being heir of tailzie to him , did in his contract of marriage reserve the pursuers infeftment of this annualrent , and did many years satisfie and take discharges of the same ; and now she pursues the earl , as contraverting the payment for some years bygone , and in time coming during her life . the defender alleadged absolvitor , because the pursuer being competently provided by her contract of marriage , this additional provision was a donation betwixt man and wife , and so by the law is revockable at any time during the husbands life , even upon death-bed , or by his testament , not only by a direct revocation , but by any thing that might import a change of his mind , and accordingly he hath revocked the same by his testament produced , adding only . pounds to his ladies provision by her contract , and albeit thereafter the late earl did ratifie and acknowledge this additional provision , yet therein they were errore lapsi , not having known of this testament of the lord ker , at least not having understood that it imported a revocation of this provision , and therefore may justly now reclaim against it . the pursuer answered , that this testament imported no revocation , which it did not mention , neither is the addition of . pounds therein an indirect revocation , which must ever be by an inconsistent deed , but both these conditions are consistent , albeit that by the testament it be modo inhabili , and it is very like that the testator , being taken with a great fever , did not remember of this provision , or added the other . pounds on this consideration , that the former provision was only to take effect , after the earl of roxburghs death ; so that the lord kers meaning might probably be to add . pounds during his fathers lifetime . dly , though the testament could import a revocation , yet the testament it self being conditional , only to stand in case his father returned not to scotland , and made use of the other testament of the same date , all the tenor of it , and this restricting clause , is affected with the same condition , so that if the testator had said that he had restricted his ladies additional provision to . pounds in case his father returned not , but in that case left her to his fathers provisions , it would be truly a conditional revocation , which condition is purified by the fathers return , and providing the lady by his ratification of this bond of provision , nor can it be justly alleadged , that both this and that earl were errore lapsi , seing the testament is produced by the earl himself , and was never in the ladies hands , and doubtless it hath been advised by the late earl ere he ratified , who was a most provident man , and his ratification is dated at the canongate , ubi fuit copia peritorum , and if ratifications should become ineffectual , or if errore lapsus , should be relevant upon the ignorance , or mistake of the import of a writ ; ratifications should be of no effect , but any ground that might defend the ratifier before the ratification , might annul the same upon pretence that he knew it not : and therefore errore lapsus is only understood de invincibili errore facti , but never de ignorantia juris quae neminem excusat . the lords found that any revocation by the testament was only conditional , and became void by the earls returning , and making use of the other testament ; and therefore repelled the defense in respect of the reply , and had no necessity to determine anent the confirmation , and error alleadged . lindsay of mount contra maxwel of kirkonnel . iuly . . lindsay of mount being donator to the waird of the estate of kirkonnel , by the death of the late laird , and minority of this laird , pursues the tennents for mails and duties . compearance is made for the appearand heir , as having right by disposition from his grand-mother to an appryzing , led at her instance against her son , and alleadged that there could be no waird , because kirkonnel the kings vassal was denuded before his death , and his mother as appryzer was infeft . it was answered first , that this apprizing was upon a bond granted by the defunct to his own mother , for the behove of his son , and appearand heir , without any onerous cause , and so was null and simulat , and a fraudful contrivance , in prejudice of the king as superiour , of his casuality of waird , and that it was found in the case of the lord colvil , that a vassal having married his appearand heir in lecto , it was found a fraudulent precipitation in defraud of the waird . it was answered , that the alleadgeance was not relevant , because there was nothing to hinder the defunct to have resigned in favours of his appearand heir , without any cause onerous , or to grant him a bond that he might be infeft upon appryzing , or to grant such a bond to any person to the heirs behove , he being in leige poustie , and there can be no presumption of fraud , seing he might have obtained his son infeft directly , which the king refuses in no case , when the granter is in leige poustie . the lords repelled the alleadgeance for the donator , and sustained the appryzing . the donator further alleadged , that by the act of parliament . betwixt debitor and creditor , it is provided , that the debitor may cause the appryzer restrict himself to as much as will pay his annualrent , and the debitor may bruik the rest during the legal ; and now the donator is in place of the debitor , so that what superplus there is more than will pay the appryzers annualrent ▪ must belong to the donator . it was answered , that this clause is peculiar , and personal to debitors , and cannot be extended to donators , who are not mentioned therein ; because debitors when they crave restriction , they are presumed as provident men , to uplift the rest for satisfying the appryzing , or their other debts , or for their subsistence , and so being introduced wholly in their favours , it cannot be extended in favours of the donator to their prejudice : for if the appryzer possess all , the superplus will satisfie the appryzing ; whereas , if the donator uplift the superplus , the debitor will be hudgely prejudged , neither the appryzing , nor any other debt of his being satisfied thereby , nor his heir intertained therewith . the lords found that this clause could not be extended to a donator , and that there could not be a waird , both by the decease of the appryzer and debitor . the donator further alleadged , that the appryzing was satisfied by intromission within the legal , which did extinguish the appryzing , as to all effects and purposes , as if it had never been , and all parties return to their rights , as they were before the appryzing ; and so consequently the superiour , and his donator has the ward duties , during the appearand heirs minority , after the appryzing is extinct ; for the appryzing being but a collateral security , like an infeftment for relief , it is jus resolubile , and doth not fully divest the debitor , who needs not be re-seased , as he would be in the case of a wodset holden publick , but the debitors own infeftment revives and stands valide , and the appearand heir must be infeft as heir to the defunct , which cannot be till he be legitimae aetatis , after the ward . it was answered , that the alleadgeance is not relevant , unless the appryzing had been satisfied in the defuncts life , for then his infeftment would have revived : but if any thing remained due , the appearand heir hath the right of reversion as appearand heir , and intromission thereafter cannot revive the defuncts infeftment . the lords found that so soon as the appryzing was extinct , whether before the defuncts death or after , the ward took effect , and the donator had right . laird of birkinbog contra iohn grahame of craigie . eodem die . in a competition amongst the creditors of umquhile sir robert dowglass of tilliquhilly , a disposition granted by sir robert to grahame of craigie , was called for to be reduced upon this reason , that it was granted by sir robert when he was a notorious and known bankrupt , and fled and was latent , so that by the act of parliament . he could not prefer one creditor to another , being in that condition , for that act annuls all dispositions made by bankrupts , without a just and necessary cause , and there was no nec●ssity nor justice for the bankrupt to prefer one creditor to another . it was answered , that unless there had been legal diligence at the pursuers instance , or that the defenders disposition had been without a cause onerous , there is no ground for that act to hinder any debitor , though bankrupt , to prefer one creditor to another , for if he had had the money , he might have payed any he pleased , and the cause is both just and necessary , because he might have been compelled by law to have done the same , and there was nothing to hinder the creditor , but that as he might have first appryzed , so he might have taken the first disposition from his debitor . dly , the pursuers debt was for a bargain of victual sold and delivered to the common debitor , but a month before the disposition in question , when he was alleadged to be bankrupt . the lords found the last alleadgeance relevant , and assoilzied from the reduction , but did not decide upon the former alleadgeance . guthrie contra mackarstoun . eodem die . in a competition betwixt an heir and an executor , anent the rent of a miln , where the tacks-mans entry was at whitsunday , where the first terms of payment of the rent was at candlemas , and the second at whitesunday , the liferenter having survived candlemas , and died before whitesunday : the question arose , how far the executor of the liferenter had right , it being alleadged , that the executor of the liferenter could only have right to the one half , the liferenter having only survived the first term as in house mails . the lords found that the legal terms of a miln rent being whitesunday and mertinmas , the liferenter having survived both the legal terms , had right to the whole years rent in the same way as in land rents , and not to the one term as in house mails . sir george maxwel of nether pollock contra maxwel of kirkonnel . iuly . . in this pursuit related the th , of iuly instant : it was further alleadged for the defender , that the pursuer cannot purge his appryzing , as now being in the person of the appearand heir , by the act of parliament betwixt debitor and creditor , by payment of what truely the appearand heir payed , because the express provision in that act is , that where ever the appearand heir of the debitor shall acquire right to expired apprizings hereafter , which cannot extend to this case , because the right to this apprizing was acquired before that act , and because it was not an expired appryzing , but the legal then running . it was answered , that albeit the disposition of the appryzing granted to the appearand heir , was prior to the act , yet the right was purchased posterior to the act , for the disposition could not give right , but only the infeftment following thereupon ; for if after that disposition , any other had been infeft upon appryzing or disposition by the defenders author , that posterior infeftment would carry the right , so that the author cannot be said to be divested , or the appearand heir invested , or stated in the right , till his infeftment , which is after the act of parliament . to the second , the pursuer answered , that the defenders appryzing , albeit it was redeemable , when he acquired right thereto ; yet it becoming now irredeemable in his person ; it cannot be denyed but he has acquired right to an irredeemable appryzing , albeit it was not irredeemable when he acquired the right , yet he hath acquired right to that appryzing , that now is irredeemable ; for the extinction of the legal reversion , cursu temporis , is a right accrescing to him , and acquired by him , and no heretage to him : and seing the words of the act are capable of this interpretation , there can be no doubt of the legislators mind , or that it should be thus interpret ; because otherwayes that excellent provision would be evacuate , for the appearand heir would alwayes acquire right to an appryzing before the legal were expyred , though he should pay the appryzer the full sum , and would make no use of it till the legal were expyred , and thereby carry the right of the whole estate , though it were of twenty times more value : but the only motive of that act of parliament being , that albeit the law gives appryzers the right of all that they appryze at random , if they be not redeemed within the legal ▪ yet the appryzer is ashamed to take so great legal advantage ; and therefore ordinarly compones with the appearand heir , who being favourable , makes no bonds to bruik the whole estate of his predecessor , excluding all his other creditors : and therefore this remeed is introduced , which will be evacuate , if the act of parliament be not thus interpret , and that interpretation should be ever followed , which is according to equity , and whereby the statute may stand , and not be eluded . the defender answered , that this statute being correctory of the common law , is strictly to be interpret , and not to be extended : and the acquisition of rights being ever interpret from the disposition , and not from the infeftment thereon , multo magis , should it be so interpret in this case , and as to that part thereof anent the expyring of the appryzing , the pursuers interpretation is not only constrained , but inconsistent with justice , for ubi subest remedium ordinarium non est recurrendum ad medium extraordinarium , for if the appearand heir acquire right to an appryzing unexpyred , the reason and motive of the statute ceases , for both the debitor and con-creditors may redeem from the appearand heir , and can pretend no necessity of extraordinary remeed , especially if the appearand heirs right be not latent , but publick by infeftment . the lords found that the appearand heirs right being only become real by infeftment after the act of parliament , that it was then to be understood to be acquired , when the author was denuded and the appearand heir invested , so that no posterior right from his author could exclude him : and found also , that albeit the appearand heirs right were during the legal , yet if it stood in his person till the legal were expyred , that the same fell within the act of parliament , and found it redeemable by what the appearand heir truly payed within ten years , to be counted from the date of the acquiring of the right , conform to the words of the act , and not from the time the appryzing became expyred thereafter . scot of hassendene contra the dutches of buccleugh . eodem die . umquhil scot of hassendene having no children , disponed his estate to buccleugh his chief , who granted a back-bond of the same date , bearing the disposition to have been granted upon the ground foresaid , and obliges himself and his heirs , that in case hassendene should have heirs of his body to succeed him , that he should denude in favours of these heirs : and now his son and heir born thereafter , pursues the dutches to denude , who alleadged absolvitor , because the back-bond being now fourscore years since , is long ago expyred . it was answered , that albeit the date be so long since , yet the prescription runs not from the date , but from the death of the pursuers father , which is within fourty years , for the pursuer could not be his heir before he was dead ; and the back-bond bears , if hassendene had heirs to succeed to him . it was answered , that heirs oftimes were interpret , bairns that might be heirs ; and if this pursuer had pursued in his fathers life , he could not have been justly excluded , because his father was not dead , and he actually heir , and so valebat agere , in his fathers life . it was answered , that although in some favourable cases , heirs be interpret to be bairns that might be heirs ; yet in odiosis , it is never so to be interpret , and there is nothing more odious , than to take away the pursuers inheritance , freely disponed to buccleugh by his father , in case he had no children upon prescription , by such an extensive interpretation of the clause . dly , if he had pursued in his fathers life , he might have been justly excluded , because if he had happened to die without issue , before his father buccleugh had unquestionable right , and so during his fathers life , he could not be compelled to denude . the lords found that the prescription did only run from the death of the father , and that this pursuer could not have effectually pursued in his fathers lifetime . blair of bethaick contra blair of denhead . iuly . . patrick blair of bethaick as principal , and patrick blair of ardblair as cautioner , granted bond to iean blair , and failing of her by decease , to her children equally amongst them , for the sum of . m●rks , upon th of may . there were five years annualrent resting at the death of the said iean blair , and now captain guthry her executor pursues the representatives of the cautioner for payment thereof , who alleadge absolvitor , because the last of these annualrents being due in anno . there is fourty years run before this pursuit , or any other diligence , and so the bond it self is prescribed , and specially these years annualrents . the pursuer rep●yed , that the prescription was interrupted , in so far as a part of the principal sum was payed within the years of prescription . it was answered for the defender , that the payment being mode to the daughters of the principal sum , it could have no effect as to the annualrents preceeding iean blairs death , which belonged not to her daughters , as persons substitute in the bond , but to her executors , so that the bond might well be preserved , as to the principal sum , and yet prescribe as to the annualrents , these being two several right , and stated in several persons . it was answered , that the interruption by payment was sufficient for preserving both principal and annual , for prescription being odious , any deed by which the debitor and creditor acknowledge the right within the fourty years , is sufficient , not only as to the interest of the particular actors , but as to all others who have interest in the same right , as payment of any part of the annualrent by one person , preserves the whole right against all the cautioners and co-principals , though they neither payed , nor were pursued within fourty years , so payment of any part of the principal , must in the same manner preserve the right of the bond , as to all annualrents , to whomsoever they belong , if they be not fourty years before that interruption , by payment of a part of the principal . which the lords found relevant . this was stopped on the lords own consideration , without a b●ll from the parties , because by common custom , though annual had been constantly payed for fourty years , yet all preceeding prescribed , whereupon it was contrarily decerned thereafter , february . . alice miller contra bothwel of glencorse . eodem die . alice miller pursues improbation of a minute of a tack betwixt her and glencorse who compeared and abode by the verity of the tack , and the writer and witnesses of the tack being examined upon oath , did depone that they did not see alice miller subscribe , and one of them deponing that he had subscribed at glencorses instigation , who told him that he had caused set to alice millers name , only one witness who was writer , and was glencorse his brother deponed that he saw the said alice miller subscribe with her own hand . the lords having this day advised the cause , found that the witnesses did not abide by the verity of the subscription of the said alice miller , and did therefore improve the minute , but found it not proven who was the forger of the said alice millers subscription . captain guthrie contra the laird of mccairstoun . iuly . . captain guthrie having married dame margaret scot , and she dying in possession of the lands of mannehill , laboured by her husband and her in the moneth of april , mccairstoun as heretor of the land , craves the rent of the land for that year , in respect the liferenter neither lived till the first legal term , which is whitesunday , nor till martinmasse . it was answered , that by immemorial custom , liferenters have right to the cropt of lands sowed by themselves , whether they attain to the term of whi●esunday or not , neither were they ever found lyable for any duty therefore . which the lords sustained . robert baillie contra mr. william baillie . iuly . . the laird of lamingtoun having made a tailzie of his estate wherein william baillie eldest son to his deceased eldest son , is in the first place , and to him is substitute robert baillie , lamingtouns second son , and the heirs of his body , reserving to the said robert his liferent , from the fee of his heirs , in case they succeed , and failzying of roberts heirs , to master william baillie , lamingtouns brother son , after lamingtouns death there is a contract betwixt this lamingtoun and mr. william baillie on the one part , and robert on the other , by which lamingtoun obliges himself to pay to robert , the sum of six hundreth merks during his life , and robert renunces and dispones to lamingtoun his portion natural , and bairns part of gear , and all bonds and provisions made to him by his father , and all right he has to the estate of lamingtoun , or any part thereof , and that in favours of this lamingtoun , and his goodsires heirs males , contained in his procutry of resignation . robert baillie raises a declarator against lamingtoun and mr. william baillie , for declaring that this contract could not be extended to exclude him or his heirs from the right of tailzie in the estate of lamingtoun , failzying of this laird and his heirs , and that it could only be extended to any present right robert had to the estate of lamingtoun , but to no future right , or hope of succession , seing there is no mention either of tailzie or succession in the contract . it was alleadged absolvitor , because robert getting . merks yearly , he can instruct no cause for it but this renunciation , which must necessarly be so interpret , as to have effect , and so if it extend not to exclude him from the tailzie , it had neither a cause for granting the six hundreth merks , nor any effect thereon . it was answered , that robert being a son of the family , and renuncing his portion natural , it was a sufficient cause , and though there were no cause , such general renunciations could never be extended to future rights , or hopes of succession , unless the sum had been exprest . which the lords found relevant , and declared accordingly . sir iohn keith contra sir george iohnstoun . iuly . . the estate of caskiben being appryzed by doctor guil , sir george iohnstoun the appearand heir , acquired right to the appryzing , in the person of phillorth , who by a missive letter , acknowledged the trust , upon which letter , sir george raised action against phillorth , to compt for his intromission , and denude himself , and upon the dependence , raised inhibition , yet phillorth sold the estate to sir iohn keith , who to clear himself of the inhibition , raised a declarator that the inhibition was null , and that his estate was free of any burden thereof , because it wanted this essential solemnity , that the execution against phillorth did not bear a copy to be delivered , and that the executions being so registrat , he being a purchaser for a just price ; and seing no valid inhibition upon record , he ought not to be burdened therewith . the defender alleadged absolvitor : because , first , the delivering of a copy was no essential solemnitie , neither does any law or statute ordain the same : much less any law declaring executions void for want thereof : and albeit it be the common stile , yet every thing in the stile is not necessary ; for if the messenger should have read the letters , and showen them to the partie , he could not say , but that he was both certiorat and charged not to dispone . dly , the executions bear , that phillorth was inhibit , personally apprehended . dly , the inhibition comprehends both a prohibition to the party inhibit , and to all the leidges at the mercat cross , at which , the execution bears a copy was affixed , so that whatever defect might be pretended as to phillorth , this pursuer and all the leidges were inhibite to block or buy from him , so that the pursuer has acted against the prohibition of the letters , and cannot pretend that he purchased bona fide , being so publickly inhibit , and the inhibition put in record , he neither should nor did adventure to purchase , without special warrandice , to which he may recur . thly , such solemnities when omitted may be supplied ; for there is nothing more ordinar than in summons to add any thing defective in the executions , and abide by the truth thereof , and many times these solemnities are presumed done , though not exprest , as a seasing of a miln was sustained , though it bear not delivery of clap and happer ; yet bearing a general with all solemnities requisite , it was sustained : and a seasine of land , though it bear not delivery of earth and stone , seing it bear actual , real and corporal possession , and the clause ●acta erant hac super solo &c. ut moris est : yea , in other solemnities which the law expresly requires as three ●las●s in the executions of horning , and six knocks , and the affixing of a stamp , have all been admitted by the lords to be supplied , by proving that they were truely done , though not exprest in the execution : though horning be odious and penal , inferring the loss of moveables and liferent ; therefore it ought much more to be supplied in the case of an inhibition , which is much more favourable to preserve the croditors debt , and here the messenger hath added to the execution , that a copie was delivered , and subscribed the same on the margent , and it is offered to be proven by the witnesses in the execution , that it was truely so done . the pursuer answered , that there was nothing more essential in an execution , than delivering of a copy , for showing or reading of letters was no charge , but the delivering of the copy was in effect the charge ; and albeit executions which require no registration , and may be perfited by the executor , at any time may be amended as to what was truly done ; yet where executions must necessarlie be registrate within such a time , else they are null , after the registration the messenger is functus officio , and his assertion has no faith : and seing the giving of a copie is essential , and if it be omitted , would annul the execution ; so after registration it can●ot be supplied , because in so far the execution is null , not being registrate , debito tempore , for as the whole execution would be null for want of registration , so is any essential part : and whatever the lords has supplied in hornings , yet they did alwayes bear , that the same was lawfullie done according to the custom in such cases ; and this execution does not so much as bear that phillorth was lawfullie inhibite , but only according to the command of the letters which do not express any solemnitie : and it hath been found by the lords , that a horning being registrate , and not bearing a copy delivered , it was found null ; because that part was not in the register , nor was it admitted to be supplied any way , but that it were proven by the oath of the keeper of the register , that that clause was upon the margent of the execution , when it was presented to the registister , and was only neglected to be insert by him , which shows how necessar● a solemnity the lords have accompted the giving of a copy , and registrating thereof : and if solemnities of this kind , be by sentence passed over , it will not only incourage messengers to neglect all accustomed solemnities , but course of time may incroach on all other solemnities ; whereas , if this be found necessar , none will ever hereafter omit it , or any other necessar solemnity . the lords found the inhibition null , and that the delivering of a copy was a necessar solemnity , which not being contained in the register , they would not admit the same to be supplied by probation , in prejudice of a singular successor , acquiring for a just price . hadden contra the laird of glenegies . eodem die . hadden being donator to the marriage of the laird of glenegies , pursues declarator for the avail thereof . the defender alleadged absolvitor , because by an act of parliament . it was declared , that whosoever was killed in the present service , their waird and marriage should not fall , ita est , glenegies was killed during the troubles , at the battel of dumbar . it was replyed , that the present troubles could not extend further than to the pacification , anno . after which there was peace till the end of the year , . dly , the parliament . and all the acts thereof are rescinded . it was duplyed , that the troubles were the same , being still for the same cause , and that the rescissory act contained a salvo of all private rights acquired by these rescinded acts. it was answered , that this was a publick law , and the salvo was only of particular concessions by parliament to privat parties . the lords found that the act . reached no further than the pacification , by which the troubles then present were terminate . the lords demured in this case upon remembrance of a process before them , at the instance of the heirs of sir thomas nicolson , against the heirs of the laird of streichen , upon the gift of streichens waird , to sir thomas , who died the time of the war , being prisoner by occasion of the war , and after pacification , that they might have seen what they had done in that case , but did not get the practicque , and the parties being agreed , they decided in manner foresaid , wherein this was not proponed nor considered , that the foresaid act was always esteemed , an exemption after the pacification , during the whole troubles , and no waird for marriage was found due that time , though many fell during the war , and if it had not been so esteemed , the same motives that caused the first act to be made in anno . would have moved the renewing thereof after the pacification : and no doubt the king and parliament anno . before dumbar would have renewed the same for incouragement , in so dangerous a war , if it had not been commonly thought that the first act stood unexpired . murray contra the earl of southesk , and other appryzers of the estate of powburn . eodem die . james murray having right to an appryzing of the estate of sir iames keith of powburn , led at the instance of mr. thomas lundie , pursues thereupon for mails and duties . compearance was made for the earl of southesk , and posterior apprizers after year and day , who alleadged that by the act of parliament . betwixt debitor and creditor . it is provided that the lords of session , at the desire of the debitors , may ordain appryzers to restrict their possession to as much as will pay the annualrent , the debitor ratifying their possession , and now the posterior appryzers having appryzed omne jus , that was in the debitor , craved that the first appryzer might restrict himself to his annualrent , and they preferred to the rest of the duties . it was answered that this was a personal and peculiar priviledge in favours of the debitor , that he might not unnecessarly be put from his possession , and which he might make use of against all the appryzers , if there were a superplus above the annualrents , and it is upon condition that the debitor ratifie the appryzers possession , which is not competent to a posterior appryzer , in whose favour this clause was never meaned : but there is a special clause for posterior appryzers , being within year and day , to come in pari passu : neither can the posterior appryzers have any interest , because the superplus will satisfie the first appryzing pro tanto . the lords found the foresaid priviledge peculiar to the debitor ; but found that the first appryzer , seing he excluded the rest , behoved to compt from this time as if he had possessed the whole . the end of the first part of the decisions of the lords of session : an index of the pursuers and defenders names , for the usual and easier citing of the lords decisions . abercrombie contra andersons , novemb. lord abercrombie con . lord newark , decemb. achinleck con . mccleud , feb. achinleck con . l. wedderburn , ianuary , achinleck con . williamson and gillespie , decemb. k. advocat con . craw , feb. k. advocat con . e. of mortoun , feb. agnew con . tennents of dronlaw . iune , aikenhead con . aikenhead , feb. aikman con . iune , e. airlie con . mcintosh , iuly , aitcheson con . la. mccleud , feb. aitoun con . watt , iuly , l. aitoun con . iames fairie , ianuary , allan con . paterson , iune , allan con . colliar , iune , allan con . fairie , iuly , capt. allan con . parkman , iuly , alexander con . l. clackmannan . iuly , alexander con . lo. saltoun , iune , lo. almond con . dalmahoy , feb. anderson and elphingstoun con . wachop , iuly , anderson and provon con . the town of edinburgh , ianuary , anderson con . cunninghame , decemb. anderson con . cunninghame , iune , andrew con . carss . novemb. e. annandale con . young and others , feb. antrobus con . anderson , iune , l. aplegirth con . lockerby , feb. arbuthnet con . fiddes , feb. arbuthnet con . keith , iune , archbishop and presbytery of st. andrews contra george pittillo , iuly , e. argile con . mcdowgals , iuly , e. argile con . campbel , ianuary , e. argile con . campbels , ianuary , e. argile con . campbel , ianuary , e. argile con . stirling , decemb. e. argile con . mcnaughtouns ▪ feb. e. argile con . vassals , june , armour con . lands , . feb. arnold of barncaple , con . gordon of holme , feb. arnot con . arnot , ianuary , e. athole con . scot ▪ decemb. e. athole con . robertson of strowan , ianuary , bailie con . town of inuerness , decemb. b●ilie con . henderson , iuly , bailie of regallty of killimuir con . burgh of killimuir , ianuary , bailie con . mr. william bailie . iuly , bain con . bailies of culross , feb. bain con . l. striechen , ianuary , baird con . magistrats of elgin , ianuary , baird con . baird , ianuary . d. balfour and his spouse con . wood , ianuary , l. balfour con . mr. william douglas , iuly , lady ballagan con . lo. drumlanrig , iune , balmano's daughter con . 〈…〉 the helr , november , lo. balmerino con . the town of edinburgh , november , lo. balmerino con . creditors of sir william dick , iuly , lo. balmerino supplicant , ianuary , creditors of balmerino , and cowper supplicant , feb. lo. balmerino con . hamiltoun of little-prestoun , iune , creditors of balmerino con . lady cowper , iune , l. balnagoun con . dingwall , iuly , l. balnagoun con . mckenzie , ianuary , lo. balvaird con . the creditors of annandale , ianuary , barclay con . l. craigivar , ianuary , barclay con . barclay , iuly , barclay con . barclay , iuly , barns con . l. aplegirth , ianuary , barns con . young , decemb. baxters of edinburgh con . the heretors of east-lothian , feb. baxters in cannongate , novemb. bead-men of the magdalen chappel , con . drysdale , iune , beatoun of bandoch , con . ogilvie of mantoun , iuly . e. bedford con . lo. balmerino , feb. e. bedford con . l. balmerino , novemb. beg con . nicolson , ianuary , beg con . beg , feb. beg con . be● , decemb. beg con . nicol , iune , bells con . wilkie , feb , bell of belford con . the lady rutherford , ianuary , lairds of beerfoord and beanstoun , con . lo. kingstou● , ianuary , mayor of berwick con . l. of haining , iuly , major bigger con . cunninghame of d●nkeith , iuly , binning con . binning , ianuary , birkinbeg con . iohn graham of craigit , iuly , birnie con . henderson , ianuary , birsbane con . monteith , iuly , birsh con . dowglas , feb. b●shop of isles con . hamiltoun , decemb. bishop of dumblaine con . e. cassils , february , b●shop of isles con . the fishers of greenock , novemb. arch-bishop of glasgow con . mr. iames logan , . feb. arch●-bishop of glasgow , con . commissar of glasgow , feb. bishop of glasgow con . commissar of glasgow , feb. black con . scot , iune , black con . french , feb. blaikwood con . purves , novemb. blair con . anderson , feb. blair of balgillo con . bl●ir of denhead , february , blair of balhead con . blair of denhead , iuly , lo. blan●yre con . walkinsh●w , iuly , blomart con . e. roxburgh , decemb. bones con . barclay of iohnstoun , iuly bonnar con . foulis , feb. capt. bood con . strachan , novemb. boog con . davidson , iuly , lo. borthwick con . mr. mark ker , ianuary , borthwick con . skeen , iuly , borthwick con . sk●en , feb. lo ▪ bor●hwick con . feb. borthwick con . lo. borthwick , feb. boswel con . boswel , novemb. boswel con . the town of kirkaldy , iuly , boswel con . the town of kirkaldy , feb. boswel con . lindsey ; feb. bow con . campbel , iuly , bowers con . lady cowper , iune , boyd con . l. nithrie , and l. of edmondstoun . decemb . boyd of pinkill con : tennents of carsluth , feb. boyd con . kintore , iuly boyd con . lauder and telziefer , novem. boyds con . boyd of temple , ianuary , iohn boyd con . he●gh sinclar , iune boyl of ke●h●rn con . wilkie , january , lady braid con . e. kinghorn , ianuary , bradie con . l. of fairnie , iune . bradie con . l. fairnie , ianuary , bredy con . bredy , iuly , broady of lethem , and l. of rickartoun con . lo. kenmure , . iuly , brotherstons con . ogil ●●d orrocks , iuly , broun con . l●ferenters of rossie , feb. broun con . iohnstoun , feb. broun con . la●sons , iune , broun con . scot , ianuary , broun and d●ff con . ●issat , iuly , broun con . happiland , ianuary , broun con . iohnstoun , . feb. broun con . sibbald , feb. bruces con . e. morto●n , iune , bruce con . e. mortoun , n●vemb . bruce con . l. and lady stenhops ▪ feb. countess of buccleugh con . e. ta●ras . fe● . ● duke of duccleugh con . parochiners of iune , children of the e. of buchan con . the lady b●●han , feb. buchan con . taits . feb. buchannan con . osou●n , iuly lady burgie con . tennents iuly , lord burly con . sime ianuary , lord burly con . sime , . novem. dame rachel burnet con . leapers , december bu●net con . iohnstoun iuly , burnet con . nasmith , iune , burnet con . swain , june , ● ioachim burn-master con . captain dishingto●n , iune , lady bute and her husband con . sheriff of but● . ianuary , ●● butter con . gray , feb. ● con . brand , january , con . edmistoun january , con . wilson , ianuary , ●● con . john and hary rollocks , fe● . con . e. kinghorn , ianuary , con . he●gh mcculloch , feb. con . the sheriff of inverness feb. calderwood con . schaw , novem. ● . callender con . monro , feb. campbel con . bryson , ianuary , campbel con . campbel , feb. campbel con . doctor beatoun , novem. campbel con . dowgal , decem. campbel con . l. glenorchie , july , canham con . adamsone , june , canham con . adamsone , novem. canna con . iuly , mr. walter cant con . loch , iune , l. carberry con . creditors , . ianuary , lady carnagy con . lo. cranburn , ianuary , la. carnagy con . lo. cranburn , feb. la. carnagy con . lo. cranburn , january , la. carnagy con . lo. cranburn , feb. countess of carnwath con . the earl , feb. cass con . mr. iohn wat. decem. cass con . sir robert cunninghame , ianuary , e. cassils con . agnew , january , e. cassils con . the tennents of dalmortoun , decemb . e. cassils con . the sheriff of galloway , decemb. countess of cassils con . e. cassils feb. countess of cassils con . the e. roxburgh , july , cathcart con . mccorquodel and mirk ▪ feb. l. cesnock con . lo. bargainy , decem. chalmer con . dalgarno , feb. chalmer con . lady tinnel , novem. chalmer con . bassillie , iune , chalmer and gairns con . colvils , novem. chalmer con . wood , feb. chapman con . white , ianuary , charters con . a skipper , ianuary char●rs con . parochiners of currie , ian. charters con . neilson , iuly , cheap . con . philip. decem. cheap con . philip , ianuary , cheap con . the magistrats of falkland , iune , chein con . chri●●● iuly , chei● ●on . christy iune chei● con . 〈◊〉 decem. ● children of mo●swal con . laurie of maxwel●●●n , feb. children of vvolmet con . mr. mark●●● ▪ feb. children of ●olmet con . dowg●●s and danke●●● , nevem . chi●●●me con . rennies , feb. ● chisolme con . lady brae , january , clappertoun con . l. of ednem , decem. clappertoun con . l. torsonce , january cleland con . stevinson , feb. clerk con . clerk decem. lo. justice clerk , con . rentoun of lambertoun , feb. ● lo. ju●●●ce clerk con . the l. of lambertoun , november , l. justice clerk con . home of linthil , feb. l. clarkintoun con . l. corsbie . decemb. l. clerkingtoun con . stewart , . iuly , la. clerkingtoun con . the l. and the young lady , ianuary , cochran con . feb. cockburn and gilles●ie con . stewart feb. m●n●ster of cockburns-path con . parochiners , feb. colledge of st. andrews supplicant , july , old colledge of aberdeen con . the town , july , colquhoun con . creditors , ianuary , colquhoun con . watson , feb. colquhoun and mcnaire con . stewart of ba●scob , iuly , colvil con . executors of colvil , iuly , lady colvil con . lo. colvil , decem , colvil con . lo. balmerino , iuly , lo. colvil con . town of culross feb. lo. colvil con . the feuars of culross , decem , commissars of st. andrews con . the l. of bussie , iuly , captain conningsbi● con . captain mastertoun , feb. corstorphine con . martines , decem. couan con . young and reid , feb. lo. couper con . l. pitsligo , iuly , town of couper con . kinocher , iune , lady craig con . l. lour , decem. la. craigcasse con . neilson , novem. cranstoun con . pringle , . decem. cranstoun con . wilkieson , iuly , cranstoun con . wilkieson , feb. crawfoord con . e. murray , feb. crawfoord con . prestoun grange , iuly , crawfoord con . auchinleck , ianuary crawfoord con . duncan , iune , crawfoord con . the town of edinburgh , iuly , e. crawfoord con . rigg , july , crawfoord con . anderson , iuly , crawfoord con . halliburton iune , cred●tors of kinglassi● , and feb. creditors of iames masson , novem. creditors of andrew bryson , novem. creditors of the lady couper and balme●ino con . lady couper , novem. crichton and her spouse con . maxwel of kirk-house , ianuary daughters of crichton of crawfoordstoun con . broun of eglistoun , ianuary cruckshank con . cruckshank , iune , l. culteraus con : chanman , novem. cumming con : lumsden , iuly , cunninghame con : dalmahoy , feb ▪ cunninghame con . the duke of hamiltoun , decem. cunninghame con : lyel , feb , ● cunninghame con : l. robertland , iuly , ● daes con . k●le iuly , dallas con . frazer of ●nnerallochie , ianuary , dalmahoy con : hamiltoun , decem. ●● min●ster of dal●ymple con . e. cassills , june , ● deanes con . bothwel , feb. ●● dennistoun con : s●mple of falwood , iuly . mr. david dewer con : paterson , 〈◊〉 . dick con : sir andr●w dick , ianuary ●● dick con . ker , ●une dukie con : mon●gamery , ianuary , mr. robert dick●on con : mr. ma●k k●r , iuly , dickson con : ●●me , novem : mr. robert dickson con . james graham , ianuary , executors of the e. of di●ltoun con : the duke of hamiltoun and others , iuly dobie con : lady stoniehill , decem. dobie con : lady stoniehill , january , dodds con : scot feb. donaldson con : harower , iuly dove con . campbel , ianuary , do●glas con : novem. ● dowglas con : lindsey , decem. dowglas con : l. wadderburn . july , ● dame elizabeth dowgla● and lockermacus , her ●u●band con : l. wedderburn , feb. ● dowglas con : cowan , july , mr. james dowglas con : 〈◊〉 jun● , ● dowglas lady wam●rey con . the l. wam●●●y j●●●ary , dowglas of lumsden con : dowglas . june , dowglas of k●●head con : his vessals and others , january , do●ni● con : young , novem : lo. drums●ies con : smart , july , l●dy drum con . l ▪ drum. feb : drummond con . skeen , june , d●ummo●d con . campbel , july , drummond con . starling of airdoch , ian , d●ummond of rickartoun con . feuars of botkennel , ianuary , dun con . duns , feb. dumbar of hemprig con . lo. frazer , feb , dumb●r of hemprig con . lo : frazer , iuly , dumbar con . e : dundee , iuly , dumbar con . lo : dussus , iune , sir david dumbar o● baldoon con . dick and others , feb. sir david dumbar of baldoon con . sir robert maxwel , iuly , duncan con . town of arbroth , novemb , dundas con . the lairds of ardrosse and touch , feb. merchants in dundee con . sp●uce an englishman , novemb. countess of dundee con . straitoun , feb. l. of durit con . r●lict and daughters of umquhil d●rie his brother , feb. durie con . gibson , feb : eccles con . eccles , decemb. edgar con . edgar , ianuary , edgar con . colvils decemb. town of edinburgh con . l. le●s and veitch , july , town of edinburgh con . sir william thomson , june , edmistoun con . edmistoun , iune , e. eglintoun con . l. cunningham-head , ianuary , e. eglintoun con . l : cunningham-head , june , elies con . ke●th , decemb. eleis con . cass●e , ianuary eleis con . wishart and keith , feb. eleis con . keith , iuly , mr. iohn eleis con . inglistoun , iuly , eleis of south-side con . carss , iune m●nister of elgin con . parochiners . iune , elphingstoun con . murray , feb. elphingstoun of selmes con . lo. rollo and niddrie , feb. lo. elphingstoun con . l. of quarrel , feb. e. errol con . the parochiners of urie , ianuary , e. errol con . hay of crimonmagat , feb. executors of fairlie con . parochiners of leswaid , . iuly , fairfowls con . binning , ianuary , fairholme con . bisset , ianuary , fai●ie con . inglis , iune , and ▪ executor of fairlie con . parochiners of fairl●e con . creditors of sir william dick , december , falconer con . dowgall , iune , falconer con . e. kinghorn , feb. mr. david falconer con . sir iames keith , iuly , farquhar con . lyon , decemb. farquhar con . magistrats of elgin , iuly , ferguson con . ferguson , iune , ferguson con . gairdner , iune , ferguson con . stewart of ashcock , ferguson con . parochiners of kingarth , feb. fiddes con . iack ▪ iuly , findlason con . lo. cowper , ianuary , findlay con . e. northesk , iune , procurator-fiscal of the commissariot of edinburgh con . thomas fairholme , june , fleming con . forrester , iuly , fleming con . her children , iuly , and , . of november , fleming con . fleming , feb. fleming con . gilles , iune , fleming con . fleming , novemb. fleming con . fleming ▪ iuly , sir iohn fletcher suppl●cant , feb. forbes con . innes , ianuary , forbes con . innes feb. forbes of watertoun con . ch●in , iune , forsyth con . patoun , feb. mr. alexander foulis and the lo. of collingtoun , con . tennents and the lady collingtoun , feb. fountain and brown con . maxwell , iuly , lo. frazer con . the la●rd of philorth , and iuly , frazer con . frazer , feb. frazer con . frazer , iuly , sir alexander frazer con . keith , decemb. fullertoun con . viscount of kingstoun , ianuary , gairdner con . colvill , iuly , gairns con . arthur , decemb. gairns con . sandilands , iuly , galbraith con . colq●houn , novemb. r●●●ct of galriggs con . wallac● of galriggs , iune , sir iohn gibson con . oswald , iune , l. gight con . birkinbeg , decemb. town of glasgow con . town of dambarton , feb. glass con . hadden , iuly , glen con . home , feb. l. glencorss younger con . his brother and sisters , ian●●ry , glendinning con . e. nithsdale , january , goldsmiths of edinburgh , con . haliburtoun , december , goodla● con . nairn , decemb. gordon of lesmore con . leith , june , gordon con . frazer , july , sir lodovick gordon con . sir john keith , july , gordon con . sir alexander mc●●lloch , feb. gordon con . sir alexander mc●ulloch , feb. gordon con . l. of drumm , june , grahame con . ross , january , grahame con . ross , feb. grahame of hiltoun con . the heretors of clackmannan , july , grahame con . browns , january , grahame con . bruce and martine , feb. grahame and jack con . brian , january , grahame con . towris , feb. grahame con . l. stainbyres , feb. grant con . grant , january , grant con . grant , feb. grant con . grant , january , gray con . dalgarno , feb. gray con . oswald , june , creditors of the lo. gray con . the lo. gray , feb. gray con . forbes , june , gray con . howison and gray , june , gray con . ke● , july , la. greenhead con . lo. lour , feb. greenlaw con . ● ianuary , greggs con . weems , iune , greirson con . mcilroy , feb. l. grubbet con . more , iuly , guin con . mcke●● , iuly , guthrie con . l. sornbeg , novemb. guthrie con . l. mckers●oun , july , hadden and lawder con . sherswood , june , hadden con . campbel , january , hadden con . l. glenegies , july , halliburton con . e. roxburgh , june , halliburton con . porteous , novemb. lady halliburton con . creditors of halliburton , july , merchants of hamburgh con . capt. dishingtoun , feb. duke hamilton con . scots , iune , duke hamilton con . l. clackmannan , decemb. duke hamilton con . duke bucleugh , june , duke hamilton con . l. of allardyce , decemb. ● duke hamilton con . maxwel of mureith , feb. duke hamilton con . fewars of the kings property , iuly , duke hamilton con . blackwood , and iuly , hamilton con . rowan , decemb. hamilton con . mcferling , feb. hamilton con . hamilton , feb. hamilton con . mitchel and keith , iune , hamilton con . esdale , iuly , hamilton con . tennents , july , hamilton con . duke hamilton and bishop of edinburgh , iuly , hamilton con . ianuary , hamilton con . symontoun , july , hamilton con . lo. belhaven , decemb. hamilton con . hamilton , iuly , hamilton con . bain , ianuary , hamilton con . harper , feb. hamilton con . hamilton a●d the viscount of frendraught , iune , lady lucia hamilton con . lairds of dunlop , pitcon , and creditors of hay of mountcastle , jan. lady lucia hamilton con . l. of pitcon and others , iuly , lady lucia hamilton con . boyd of pitcon , iuly ; executors of walter hamilton con . executors of andrew reid , july , l. haining con . the town of selkirk . ● feb. harlay con . hume , iuly , harper con . hume , ianuary , harper con . hamilton , iuly , harper con . vassals , iuly harrowar con . haitly , iune , hay con . hume iune , hay con . seaton , iune , hay con . m●rison , feb. hay con . corstorphin , iune , hay con . nicolson , iuly , hay con . collector of the vacand stipends , iune , hay con . mag●strats of elgin , novemb. hay con little● iohn , feb. hay con . mag●strats of elgin , iune , hay con . magistrats of elgin , iuly , hay con . dowglas , iuly , hay con . little-iohn , decemb. hay of strouie con . fe●ars , iune , hay con . drummond and hepburn , novemb. hay con . town of peebles , ianuary , hay con . town of peebles , feb. doctor hay con . iameson , iune , hay con . magistrats of elgin , iune , henrison con . l. ludwharne , decemb. henryson con . l. ludwharne , ianuary , henryson con . henryson , ianuary , henryson con . henryson , novemb. henryson con . birn●e , feb. henryson con . anderson , novemb. hepburn con . hamiltoun decemb. hepburn con . hepburn , ianuary , hepburn con . hepburn , feb. hepburn con . nisoet , feb. heretors of don con . town of aberdeen , ianuary heretors of the milne of keithick con . fewars , june , heretors of don con . town of aberdeen , iuly , heretors of johns-milne con . fewars , feb. heriots con . fleming messenger , and his cautioners , ianuary , heriot con . ● town of edinburgh , june , hill con . maxwel , feb. hill con . maxwells , decemb. hogg con . hogg , ianuary , hogg and others con . countess of hume , july , hogg con . countess of hume , decemb. hogg con . countess of hume , decemb. humes con . bonnar , decemb. hume con . pringle , january , hume con . june , hume con . the tennents of kello and home , june , e. of hume con . wodsetters iuly , dame margaret hume con . crawsoord of kerse , july , hume con . creditors of k●llo , and hume , decemb. hume con . tennents of kello and hume , ianuary . countess of hume con . tennents of alcambus and hogg , feb. hume con . creditors of kello , iune , hume and others con . hume , july , hume con . tennents of kello , july , hume con . seaton of meinzles , ianuary , hume con . e. hume , iuly , hume con . sco● , feb. hume con . lo. just●ce clerk , june , hume con . lo. justice clerk , july , ● hume con . l. ryslaw , iuly , hospital of glasgow con . campbel , july , howison con . cockburn , novemb. ● h●nter con . wilsons , decemb. h●nter con . creditors of iohn peter , june , marquess of hun●ly con . gordon of lesmore , 〈◊〉 hutcheson con . e. cassals , decemb. hutcheson con . dickson , ianuary , jack con . fiddes , iuly , iack con . pollock and rutherfoord , feb. jack con . movat , iune , iack con . iack , iuly , jack con . borthwick , feb. jaffray con . iaffray , decemb. jameson con . mcclied , decemb. ierdin of applegirth , con . iohnstoun of lokerbie , feb. inglis con . hogg , decemb. inglis con . l. bal●our , iune innes con . wilson , july , innes con . innes , january , ● johnstoun con . applegirth , feb. johnstoun of sheenes , con . broun , iuly , iohnstoun con . mcgreegers , iuly , iohnstoun con . tennents of achincorse , iuly , iohnstoun con . iohnstoun feb. johnstoun con . cunningham , june , johnstoun con . sir charles erskine , feb. johnstoun con . paro●hioners of hodonie , iuly , iohnstoun of sheenes con . ar●old , iuly , johnstoun con . sir charles erskine lord lyon , january , irwing con . mccartney , january , irwing con . strachan , iune , iurgan con . capt. logan , iuly , iustice con . stirling , ianuary , lo. justice clerk , and sir alexander his son con . e. hume , iune , lo. iustice clerk con . fairholme , feb. k sir iohn k●●th con . sir george johnstoun , july , kello con . p●xtoun , july , kello con . pringle , january , kello con . kennier , january , kennedy con . hutcheson , july , kennedy con . weir , feb. ● kennedy con . agnew of lochnaw , iuly ● kennedy and mu●e con . jaffray , june , kennedy con . kennedy , of cullen , iuly , kennedy con . cunninghame and wallace , july , ker con . paroch●oners of carriden , july , ker con . ker of fairni●lie , and others , july , ker con . hunter and tennents of cambo , f●b . ker con . children of wolmet , feb. ker con . ker , july , ker con . ker , feb. ker of cavers and scot of golden-berrit supplicants january , ker con . downie , january , ker con . nicolson , january , kidd con . dickson , june , l. kilbirnie con . hei●s of tailzle of kilbirnie , and schaw of greenock , january , lady kilbocho con . the l. of kilbocho decemb. ● kilchattans cred●tors con . lady january , kincaid con . l. fenzies , feb. e. kincairn con . l rossyth , feb. e. kincairn con . l. pittar● , feb. king's advocat con . e mortoun , feb. e. kinghorn con . l. udney , iuly , e. kinghorn con . l. udney , january , viscount of kingstoun con . collonel fullertoun , feb. ● kinross con . l. hunthil , decemb. kinross con . l. hunthil , july , kintore con . boyd , ianuary , kintore con . the heir of logan of coa●field july , kirkaldy con . balkanquell july , kirktouns con . l. hunthill , feb. kirktouns con . l. hunthill , january , l. knaperin con . sir robert farquhar , novemb. kyle con . seaton , iune , l. lambertoun con . e. levin , iuly , l. lambertoun con . e. levin , and dayes of iuly , l. lambertoun con . hume of kaimes , iuly , l. lamingtoun con . chie●ly , january , l●nglands con . spence of blair , iune , langtoun con . scot , decemb. e. lauderda●e con . the tennents of swintoun , january , e. lauderdale con . wolmet , iuly , e. lauderdale con . the viscount of oxenfoord , ▪ feb. e : lauderdale con . viscount of oxenfoord , last feb. e. lauderdale and wachop , con . major biggar , decemb. laurie con . sir iohn drummond , feb. laurie con . gibson , feb. laurie con . sir iohn drummond , feb , leckie con . feb. l●ith con . l. lismore , and others , iuly , lennox of wood●head con . nairn , iune , lennox con . linton , feb. lermont con . russel , ▪ decemb. lermont con . e. of lauderdale , iuly , leslie con . gray , ianuary , sir. iohn leslie con . sinclar of dun , decemb. leslie con . cuningname , iuly , leslie con . guthri● , feb. leslies con . iaffray , iune , letter from the k●ng , iune , lo. leye con . porteous , feb. lindsey and swinton con . ingles , july , lindsey of mount con . maxwel of kirkonnel , iuly , town of linlithgow con . town of borrowsto●nness , ianuary , town of linlithgow con . town of borrowstounness , feb. litle con . e. of neidsdaile , ianuary , litle-iohn con . dutchess of monmouth , feb. litster con . aitoun , iuly , livingstoun con . the heir of forrester , iuly , livingstoun con . sornbeg , novemb. livingstoun con . beg , feb. livingstoun con . lady glenegies , iuly , livingstoun con . burns , iune , lochs con . hamiltoun , novemb. lockhart con . kennedie , feb. lockhart con . lo : bargenie , feb. logans con . galbreath , ianuary , logi● con . logie decemb. lo : lour con . e. dundee , feb. lo : lour con . la. craig , iuly , lo. lour con . ianuary , lo. lovat con . lo. mcdonald , iune , loyson con . the l. ludwharn , june , l. ludwharn con . l. gight , july , heirs of lundie con . e. southesk , july , lyon of murresk con . l. of ersk , june , lyon of murresk con . farquhar , decemb. lyon of murresk con . heretors of the shire , feb. lyon of murresk con . gordons , and others , feb. magistrats of con . the e. finlatour , ianuary , mair con . stewart , january , maitland con . leslie , feb. maitland of pitrichie con . l. of gight , decemb. e. marischal con . bra● , june , e. marischal con . leith of ●hit●haugh , iuly , masson con . iune , creditors of masson con . lo. torphichan , ianuary , mastertoun con . strangers of ostend , feb. mathieson con . gib , iuly , maxwel con . maxwel , feb. lady diana maxvel con . lo. burlie and others , feb. maxvel con . maxvel , novemb. ● maxvel con . maxvel , iuly , ● maxvel con . maxvel iuly , l. may con . ross , feb. m●alexander con . dalrymple , june , mcbrair con . sir robert crei●hton feb. mcclaud con . young and girvan , decemb. mcclellan con . the lady kircudburgh , feb. mccrae con . lo. mcdonald , july , m c ulloch con . craig , dec●mb . mcdougal con . l : glenorchie , iune , mcgill con : ruthven , novemb. mcgill con : v●scount of oxenfoord , feb : mcgreeger con : menzies , feb : mcintosh con : robertson , iuly , mckenzie con : ross , feb : s●r george mckenzie con : fairholme , decemb : sir george mckenzie con : mr , iohn fairholme , july , s●r george mckenzie con : l. of newhal , july , sir george mck●nzie con . mr : iohn fairho●me , feb. mackenzie con . rober●son , decemb , mckenzie con . ross , ianuary , mckie con . stewart , july , mcmorland con . melvil , iune , mcpherson con . m●cleud , iune , mcpherson con : wedderburn , ianuary , mcqueen con : marquess of dowglas , and peirson , ianuary , lo : melvil con . the laird of fairnie , feb , menzies con . l. drum , january , menzies con : l. glenorchie , june , mercer of aldie con ▪ rouan , feb : merstoun con . hunter , ianuary , mille● con . howison , june , mille● con . watson , iuly , miller con . bothwel , iuly , milne con : hume , iuly , milne con . clerkson , feb : lady mil●toun con . l. milntoun , iuly , l. milntoun con : lady milntoun , ianuary , l. milntoun con . lady milntoun , feb. l. milnto●n con . lady milntoun , feb. l. milntoun co● . lady milntoun , feb : l. milntoun con . lady milntoun , july , l. milntoun con . lady milntoun , ianuary , l. milntoun con . lady milntoun , iuly , minister of north leith con . merchants of edinburgh feb : m●nister of con . the l. elphinstoun iune , mitchel con . hutcheson , iuly , dame g●ils moncrief con . tennents of newtoun and yeoman , feb : moncrief of tippermalloch con . magistrats of pearth , iuly , children of mouswal con . laurie of maxwaltoun , feb. lady mo●swal con . feb. montei●h con . anderson , iune , monteith con . anderson , decemb. monteith con . l. glorat , dec●mb . monteith of carrubber con : boyd , decemb. montgomerie con . lo. kirkudbright , decemb , montgomerie con . peter , july , montgomerie con . montgomerie , iuly , montgomerie con . brown , january , montgomerie con . hume , iuly , collonel montgomerie con : wallace and bowie , ● i●ne , collonel montgomerie and his spouse , con . stewart ▪ and ianuary , coll. montgomerie con : the heirs of h●lliburton , feb. montgomerie con . rankine , novemb. moffat con . bl●●k , iune , morison's rel●ct con . the heir , feb. daugh●ers of mr. iames mortoun supplic●nt , novemb . parson of morum con . the l●s . of be●rfoord and beinstoun , july , sir george mouat con . d●mbar of hemprig , feb. mow con . dutche●s o● buccleugh , july , l. muchrum con . l. mercoun , and others decemb. muir con . frazer , july , muir con . sterling , feb. muirhead con . july , e. murray con . l. g●ant , january , sir robert murray , con . feb. murray con . june , murray con . executors of doctor guild , iune , ● e. murray con . hume , ianuary , creditors of sir iames murray con . murray , feb. murray of o●htertyre con . sir iohn drummond ▪ feb , murray of ochtertyre con . gray , decemb , murray con . murray , iuly , murray con . e. southesk and others , july , mushet con . duke and dutchess of buccleugh , ianuary , naper con . gordon of grainge , feb ▪ naper con . e. eglintoun , feb. nasmyth con . iaffray , con : iuly , nasmyth con . bowar , iuly , neilson con . meinzies of enoch , iune , lo. newbyth con . magist●ats of elgin ▪ feb : lo. newbyth con . dumbar of burgie , decem , newman con . tennents of hill and mr. iohn preston , ianuary , nicol con . hope , ianuary , nicolson con . rewar● of tillicutrie , ianuary , nicolson con . l. bughtie and babirnie novemb. sir thomas nic●lson con . l : philorth , decemb , nisbet con . lest● ▪ iuly , nisbet con . murray , novemb. nisbet con . june e. n●rthesk con . viscount of stormond , feb. norvel con . sunter , decemb. norvel con . sunter , iune , ogilvie con . stewart , decemb ▪ ogilvie con . grant , iuly , ogilvi● con . feb. ogilvie con . lo. gray , iuly , oliphant con . dowglas ; feb : sir lauerance oliphant con . sir iohn drummond . and ianuary , oliphant con . hamilton , ianuary , lady otter con . l. otter , ianuary , lady otter con . the laird , feb ▪ pallat con . fairholme , f●b . e. panmuire con . parochioners , feb. papla con . magistrats of edinburgh , ianuary , pargillies con . pargillies , feb. park con . somervail , novemb. parkman con . allan , feb. parkman con . allan , feb , parochioners of port supplicants , decemb. paterson con . watson , decemb. paterson con . pringle , feb : paterson con . humes , decemb. patoun ●nd mercers con patoun , june , relict of patoun con . the relict of archbald patou● iuly , patoun con . patoun , iuly , ●e●cock con . baillie , iuly , peirson con . martine , decemb. peirson of balmadies con . the town of montross , iune , town of peart● con . weavers at the b●idg-end of pearth , july , the weavers of pearth , con . the weavers at the b●idge-end of pearth , decemb. paterson con . anderson , iune , petrie con . paul , july , petrie con . mi●chelson , novemb , philip con : cheap , july , l. philor●h con . lo. frazer , feb. l. philor●h con . fo●bes and lo. frazer , decemb. l. philorth con . lo. frazer , iune , ex●cutors of the lady p●●toun con . hay of bal●ousie , feb. pitcairn con . edgar , iune , pitcairn con . tennen●s , feb. l. pitfoddel con : l. glenkindie , ● feb , creditors of pollock con : pollock , ●anuary , l. pol●●aes con . tradesmen of sti●ling , july , l. polwart con : humes , ianuary , l. palma●s con . l : halliburton , january , pot con . pollock , feb. po●tie con . dycks , feb : l. prestoun con . allurid , iune , sir george prestoun con . scot july , primross con . din ▪ novemb. pringle con . ker ▪ feb. pringle and her spou●e con . pringle , novemb. pringle con . pringle , feb ▪ ra● con . tennents of clackmannan . iuly , ra● con . tennents of clackmannan , july ▪ raith of edmonstoun con ▪ l. niddrie , iuly , raith and wachop con . l : wolme● and major biggar , iuly , ramsey con . e : wintoun , january , ramsey con . m●clelland , ianuary , ramsey con . m●clelland , feb : ramsey con . hogg and seaton , decemb. ramsey con . wilson and others , decemb. ramsey con : ker , feb. ramsey con . henderson , iannuary , rei● con . harper , june , reid con . melvil , decemb. reid con . reid . january , reid con ▪ so●mond , ianuary , reid con . jan●ary , renton con . mr. mark ker , and ianuary ▪ lo. renton con . fewars of coldinghame , ianuary ▪ l● . renton con . l : lambertoun , feb , lo. renton con . l. lambertoun , july , reoch con : cowan , feb. ri●kart con . january , riddel con . f●b . ex●cu●ors of ridpath con . hu●● , j●ly , owners of the sh●p call●d the castle of riga , con . cap●ain seaton , july , owner● of the ship c●lled the castle of riga , con . capta●n seaton . feb. robertson con . buchannan , feb. lo. rollo con . his chamberlain . dec●mb : ross con . campbel of calder , ianua●y , e : rothes con : the tutors of buccleugh , decemb. slo. saltoun con . lairds of park and rothomay , feb. sandilands con . sandilands , january , sauer con . ruther●oord , novemb. schaw con . lewis , january , schaw con . tennents , july ▪ schaw con . calderwood ▪ january , scot con . montgomery , january , scot con . e. home , feb. scot con . lady fewaltoun , iuly ▪ scot of bread-meadows con . sco● of t●irlston , iuly , scot ▪ con . l. beerfoord , novemb. scot con . henderson and wilson , decemb. scot con . ●letcher , ianuary , scot of thirlstone con . scot of broad-meadows , feb. scot con . silvertoun-hill , iuly , scot con . somervail , iuly , scot con . boswel of achinleck , novemb , scot con . heirs of lyne of achinleck , iuly , scot con . sir robert montgomerie , iuly , scot con . gib . ianuary , scot con . scot , iuly , scot of clerkingtoun con . the lady , feb. scot con . a●ton , decemb. scot con . l●ngtoun , iune , scot of hartwoodmyres con . novemb. scot con . murray , ianuary , scot con . chei●ly and thomson , feb. scot of thirlston con . lo. drumlen●ig , iune scot con . l. drumlen●ig , iune , scot of hassenden , con . dutchess of buccleugh , iuly , scrimz●our con . murrays , ▪ iune , scrymzeour con . murrays , iuly , scrymzeour con . wedderburn , of kingenie , iuly , seaton con . roswel , ianuary , seaton and l. touch con . dundas , ianuary , seaton con . l. bawhillie , novemb. seaton con . seaton , decemb. seaton con . seaton , decemb. sharp of houstoun con . glen , feb. sharp con . gl●n , iuly , shed con . g●rdon and kyle , iuly , shed con . chartres , ianuary , relict of mr. pat. shiel con . paroch●oners of west-calder , ianuary , shein con . chrystie , novemb. simes con : brown , ianuary , ● sir robert sinclar con . the la●rd of wedderburn , feb , sinclar of brym supp●lcant , iune sir robert sin●lar con . the l , of houstoun , iune , sir robert sinclar con . couper , iuly , skene con . lumsden , feb. skene con . lumsden , iuly , skene con . lumsden , ianuary , skene and thoires con . sir andrew ramsey , novemb . relict of skin● con . the e. roxburgh , feb. slivanan con . wood of grange , feb. smeton con . crawfoord ianuary , smeton con . talbert , feb. smith and duncan con . robertson , decemb. smith con . muire , decemb. e. southesk con . broomhal , feb. e. southesk con . marquess of huntly , iuly , e. southesk con . marquess of huntly , july , e , suthesk con . l. of earles●al , feb. d●ughters of sautray con . the eldest daughter , july , spruel con . miller , july , steel con . hay of r●tra , june , stewart con . fewars of aberl●dnoch , january , stewart con . nasm●th , decemb. stewart con . spruel january , stewart con . bogle , january , stewart con . stewart , june , st●wart con . stewarts , january , stewart con . aitcheson , january , stewart con . l. rossyth , january , stewart con . fewars of e●nock , june , sir william stewart con . murrayes , july , stewart of gairntillie con . stewart , june , sir william stewart con . sir george m●ckenzie , and kettlestoun , july , st●vin con . boyd , june , stevin con . boyd , july , stevins con . neilson , july , stevinson con . ker , january , stevinson con . crawfoord , june , executors of stevinson con . crawfoord , j●●uary , stevinson con . the l. of hermiesheels , june , stevinson con . dobbie , june , sterling con . campbel , feb. sterling con . hariot , january , vi●count of stormount con . the cred●tors of annandale , feb. strachan con . morison , january , strachan con . morison , feb. strachan con . gordons , july , straitoun con . the countess of hume decemb. street con . home and bruntsfield , june , street con . masson , july , swintoun con . july , l●dy swintoun con . the town of edinburgh , feb swintoun con : notman , june , swintoun con . brown , decemb. sword con . sword , january , e. sutherland con . m●intosh , july ▪ e. sutherland con . gordon , decemb. e. sutherland con . the earls of er●ol and marischal . january , tla. tarsapie con . l , tarsapi● , decemb. collector general of the taxation con . d●rector of the chancellarle , &c. january , collector general of the taxa●ion con . mr. and servants of the mint●house , january , taylor con . kintie , june , telzi●fer con . maxtoun and cunninghame , june , telziefer con . maxtoun and cunningham , iuly , tailziefer con . l. so●nbeg , decemb. tailziefer con . geddes , novemb. lo. thesaurer and advocat , con . lo. colvil , ●●b . thomson con . mckittrick , july , thomson con . reid , june ▪ thomson con . town of edinburgh , feb. thomson con . henderson , decemb : thomson con . binning , july , thomson con . mckittrick , iuly , thomson con . stevenson , and decemb. thomson con . e. glencairn , july , t●orntoun con . milne , june ▪ tipertie con . his cred●tors , january , lo. torphichan con feb , tosh con . cruckshank , july , la. towi● con . barclay , novemb. la. towie con . barclay , january , trench con . watson , feb. exe●utors of trott●r con . trotter , novemb. lairds of tullialland and condie , con . crawfoord , and june , e. tullibardin con . murray of ochtertyre , feb. tweedies con . tweedies , dec●mb . urqu●art con . blair , july , urquhart con . 〈◊〉 decemb. sir. john urquhart supplicant decemb. v collector of the vacand stipends con . parochi●ners of maybol , feb. veitch con . lyell , ianuary , veitch con : paterson , decemb. veitch of daick con . williamson , decemb. veitch con . d●ncan , decemb. vernor con : allan . june , wachop con . l. niddrie , iuly , wallace con . fork , june , wall●●e con . edgar , ianuary , wallace con . mckerrel , ianuary , wardlaw con . gray , novemb. wardlaw con . frazer , feb. wat con . russel , novemb. wat con . halliburton , iune , wat con . campbel , feb. vvatson con . elies , june watson con . fleiming , feb. watson con . fewres of duckennan , iune , watson con . law , iuly , watson con . sympson , feb. l. wedderburn con . vvardlaw , feb. wedderlies children , january , weems con . cunninghame , iuly , weems con . lo. torphichan , iuly , sir iohn weems con . the laird of tolquhon , feb. sir iohn weems con . wil. campbel of ednample , iuly ▪ sir iohn weems con . forbes , of tolquhon , ianuary sir iohn weems con . farquhar of tauley , january , whyte con . crocket , decemb. whyte con . hume , novemb. whyte con . brown , novemb. ● whytehead con . straitoun , novemb. wilkit con . ker , iune , will con . town of kirkaldie , feb. wilson con . thomson , june , wilson con . murray , iune , wilson con . hume of linthil , decemb. wilson and callender , con . january , wilson con . magistrats of queens●errie , ianua●y winraham con . la. idingtoun , iuly , winrham con . elies , decemb. e ▪ wintoun con . the countess of wintoun , feb. e. wintoun con . gordon of letter-●errie , july , wishart con . arthur , feb. la. wolmet and dankeith , con . major bigg●r , january , la. wolmet and dankeith con . major bigga● , iune , wood con . neilson , iuly , wright con . sheil , iune , yeoma● con . oliphant , iuly , yeoman con . oliphant , ianuary , yeoman con . oliphant , decemb. ● yeoman con . oliphant , ianuary , ● young●r con . johnstoun , iune , younger con . iohnstoun , novemb. finis . errata . several errors has escaped the press in the authors absence , and the rest being but literal faults , the judicious and candid reader ▪ will easily correct them . page . l. . osburn r. osburns nam . p. . l. . acratus r. lucratus . p. . earister r. thereafter , p. . l. . on by , there r. town , p. . l. . instructions of offence , r. instrument of offer , p. . l. . defender , r. pursuer , l. , grant . r. granter , p. . l. . if ▪ r. yet , p. . l. ult , suspender r. charger , p. . or . by . r. to p. l. . to r. by , p. . l. . and r. he . p. . l. . the second annualrent dele , p. . l. . initiable r. ●mitable , p. . l. . defender r. pursuer , p. . l. . laws r. lands , p. . l. . pursuer r. suspender , p. . l. ● . in r. no , p. . l. . actorialis , r. actio r●alis , l. . ● valued r. val●d , p. . l. . differred r. decerned , p. . l. . and . and dispone the tenement , de●e , l. . debitor . r. debate , p. . l. . lands r. bonds , p. . l. . deposition r. depositation , p. . being r. and therefore writs being , p. . l. . ●nstruct , r. in●ert , p. . l. . therefore , r. the pursuer p. ▪ l. . though r. the , p. . l. . would r. could no● , l. ult . was r. was not , p. . l. . have been vincus , r. not have been unicus , l. . b● r. exchanging , p. . l. . observed , r. reserved , p. . l. . first , r. fifth , p. . l. . the r. by ▪ l. pen i● he , r. who , p. . l. . needful r. wilful , p. . l ▪ . bl r. ●ight searz , p. . l. . defuncti maritis , r. defunctae matris , p. . l. . no dele , p. . l. . inmoveable dele , . l. . a sufficient , r. this , p. . l. . bl . r. incumbent , l. . heretor r. heretable , p. . l. . transaction , r. translation , l. . heir r. her son , l. . confi●mation , r. confinio , p. . l. . their r. her , p. . l. ● ▪ bl : r. knew , p. . l. . past , r. past f●ra , was , l. . which r. th ▪ p. . l. . could , r. would not ▪ . l. . he●r r. he●r of line , p. . l. . power r. so near , p. . l. . answered dele , p. . l. . pursuer r. children , p. . l. . children r. pursuer , l. . to dele , p. . l. . were r. neither , l. . seem r. some , p. . l. . likeas in his office , r. in his office likeas , p. . l. . minister r. master , p. . l. . reduced r. deduced , l. . others r. and , p. . l. . with r. which . . l. . emmitted r. ommitted , p. . l. . without consent r. with consent , p. . l. . he did not sell r. he did sell , p. . l ▪ . peculium r. periculum , p. . l. ▪ yet whether . r. yet where the ▪ p. . l. . . ad r. . act , p. . l. ● so richard r. to richard , p. . l. . loadned r. abandoned , p. ▪ uses to be preferred , adde the strangers infeftment . p , . l ▪ . and jus , r. as jus , p. . l. . heretable r. moveable : p. . l. . the husband therein , r. the husbands interest therein , p. . l. . ardoch , r. him , p. . l. . granted to r. granted by , p. . l , . no testament , r. a testament , ibid. did exhau●t , r. did not exhaust , p. . l. : nothing r. any thing . p. . l. . by invalidat , r. to invalidate , p. . l. . are not comprehended r ▪ are comprehended , p. . l. . exclude r. excluded , p. . l. . and in r. and not , p. . l. , they could be , r. they could not be , p. . l. . another r. a mother ▪ last index , p. . l. . fragrant r. fragrant ▪ a list of the heads of the following index , or alphabetical compend . act of indemn●ty . act of parliament , act salvo jure , adjudger , adjudication , adm●ral , advocat , adulter●e , alibi , aliment , ann , annexation , annuiti● , annus deliberandi , annuelrent , appryzing , arb●ter , arrestment , assignat●o● , attester . baillie , ba●rn , band , barron , base infeftment , bastardie , behaving as heir , bills of exchange , blank , bloodwi●e , bona fides , burgh , burgh royal. capt●on , casus ●ortuitus , cause onerous , cau●●oner , cedent , certification , charge , chyrog●aphum , &c. circumvention , citation , clause , clause of conquest , clause irritant , cl●●se of substitution , clause de non alienando , coal , cogn●tion , colledge , command , commissar , commssion , commodatum , common pasturage , comm●nt●e , compensation , competent and ommitted , compt , compt book , conclusion of the cause , confession , confirmation , con●usion , conjunct●ee , conque●● , con●ent , consignat●o● , continuation , contract , con●rary alleadgances , contravention , creditor , cropt , cruves , curators , custodie . damnage , date , death , deathbed , debitor no● presumitur donar● , debitum fundi , declarator , declarator of esc●ea● , declarator of non-entr●e , declarator of nullity , declarator of property , de●reet , decreet arbitral , decreets of ●nferior courts , de●reets of session , decreets of parl●ament , delivery , depositation , designa●ion , devastation , dil●gence , discharge , disposition , division , donat●on , donat●on betwixt man and wife , donator , double poynding , in dubiis , &c ▪ ejection , erection , escheat , ex●cutors , executor creditor , execution , exception , exhibition , exhibition ad deliberandu● , extract . father , feu , feu-dut●e , forfaulture , fraud , fraught , fru●ts . g●neral let●e●● , g●ft , heirs , heir male , heir subst●tute , he●r apparent , he●rs ●n tacks , heirship moveable , her●table , holden as confest , holograph , homologation , horning , husband , hypotheca●ion ▪ ignorantia ju●is , &c. improbation , incident , pro ●ndiviso , infeftment , inhibition , interdiction , interruption , intimation , introm●ssion , jus mariti , jus superveniens , &c. jus tertii . k the k●ngs palace , knowledge . law , legacy , licence to pursue , litiscontestation , locus penitentiae , lords , lucrative successor , life , lyferenter , lyferent e●chea● , lyon herauld . magistrats , manda● , mails and duties , maintinance , marriage , mel●oration , merchant , metus causa , miln , minister , minor non tenetur placitare , &c. m●nor , minor●tie and le●●on , minute , missive letter , mother , moveable ▪ nearest of kin , non-entrie , noviter veniens ad notitiam . oath , oath of calumn●e , oath ●x officio , oath in 〈◊〉 , oath qualified , obligation , offer , office , overseer . part and pertinent , parties having interest , paricide , passing from , &c. payment , pension , perr●l , personal , possession , possessor bonae fid●● , possessorie judgement , poynding , precept , premunition , prescription , presumption , priviledge , probation , process , promise , protutor , prize ships , pupil . rat●habition , recogn●tion , redempt●on , reduction , regal●t●e , relief , rel●ct , remov●ng , renunciation , reparation , rep●obat●re , requ●sition , retour , reversion , right real . salmond-fishing , sat●s●action , seasine , service , servitude , simulation , singular successor , slander , special declarator , spui●zie , stipend , stollen goods , submission , substitution , successor lucrative ▪ summonds , superior , superiority , suspensions . tacit relocat●on , tack , taxation , teinds , tenor , terce , term of payment , testament , thir●age , tocher , trads-men , tran●action , transferrence , trust , tutor , tutor nominat , tutor dative . ultimus haeres . use of payment , userie . vicarage , violent profites , v●t●ation , v●tious introm●ssion . ward , wak●●ng , warn●ng , warrand●ce , wi●e , w●tnesses , w●tnes ex officio , w●tnesses insert , wodsetter , wodset , writ . index : or , an alphabetical compend of the first part of the decisions of the lords of session , beginning in june . and ending in july . act of indemnity , found to liberate a souldier , ●cting with a party of souldiers in arms , under any authority , lawful or pretended , and that his warrand or command was thence presumed , unless it were proven by his oath that he had no warrand , and converted the goods to his own private use , iune . . ferquharson contra gardner . the same found , february . . lyon of mur●ask contra gordouns and others : but here the application was ●ound probable by witnesses . act of indemnity ●ound to secure a person intrometting by order of the comittee of estates for the time , in so far as he compted to them , without necessity to show his commission , or the warrand of the auditors that compted with him , but not found sufficient to free him from what he had omitted , though the said accompt bear , that he had made faith , that he had omitted nothing , which was only accounted an oath of credulity , like that of executors , february . . lord iustice clerk contra laird of lambertoun . act of indemnity , ●ound to make intromettors with publick money , lyable only for their intromissions , and not for omission , though by their commission they were bound to do diligence , february . . inter ●osdem . act of indemnity , found not to make collectors lyable for what they intrometted with , and compted not for , not being applyed to their own use , but carried away by souldiers , for the use of the army , without necessity to instruct the souldiers or collectors warrand , which was presumed , i●ly . . inter ●osdem . act of parliament , relating a former act , and not conform thereto , ●ound not thereby to alter the former act , but to be regulat thereby , ianuary . . the heretors upon don water contra the town of ab●rdene . an act of parliament anent leaving the mid-stream free in cr●ives , found to be taken away by de●uetude past memory , iuly ▪ . inter eosdem . the like of the act . cap. . iuly . . the earl of hume contra his creditors . act of parliament in favours of private parties , not printed , assigning them to some bygone maintainance , found not effectual against singular successors , though not excepted in the act , they not being called thereto , iune . . inglis contra laird of ●alfour . act of parliament betwixt debitor and creditor , found not to extend to bonds for rents of lands , though exceeding . pounds , but that personal execution might be thereon , december . . dalmahoy contra ham●●toun of ●innie . the said act found to restrict a wodset , though the usurpers act , and all such acts made , or to be made , were res●inded , ianuary . . laird of lamingtoun contra sir iohn ch●isty . the security required by the said act for principal and annualrent accumulat , found either to be by cautioners , or infe●tment of land , iuly . . miln contra hume of eccles. the act salvo ivre being excluded in a ratification to a particular party , and that exclusion not being repeated in the act salvo , the lords were unwilling to decide , whether such exclusion should be sufficient , but ordained the parties in the first place , to dispute their rights , without consideration of that clause , feb●uary . . earl of lauderda●l contra viscount of oxenfoord . an adjudger ordained to be received , without instructing his debitors right , who renunced to be heir , salvo jure superioris & cujus●bet , february . . ramsay contra k●r . ad●udication being on a disposition , and obligement to infe●t , and not upon a liquid sum , the superiour was not found obliged to receive the adjudger , unless he instructed the disponers right , iune . . medowgal contra laird of 〈◊〉 . adjudication being pursued by a creditor on a personal debt , was not excluded by a back-bond of the defuncts debitors , bearing his infeftment to be on trust , to the behove of a third party , whose creditors compeared against the adjudger , yet was not put to dispute his debitors right till a●ter the adjudication , he might use exhibition of his evidents : but the adjudication was granted with the burden of the back-bond . november . . livingstoun and sornbeg contra lord forrester and creditors of grange . adjudication was excluded as to the property , in favours of a party , shewing the de●unct to be denuded , and himself infeft , but was sustained to adjudge any right of reversion , clause irritant , or provision in favours of the defunct debitor , iu●y . . inter ●osdem . adjudication was sustained against a second appearand heir upon a decreet cognitionis causa , upon the renunciation of a former heir , without a new charge against the heir , or his renunciation : the defender declaring that the lands should be redeemable within ten years , if the pursuer entered within these years , ianuary . . crawford contra auchinleck . adjudication was found not to be stopped upon a better right than the de●uncts , alleadged upon by a party compearing , but the pursuer was suffered to adjudge upon his peri● , november . . chein contra christie . admiral , or the iudge of the high court of admirality , does reduce the decreets of inferiour admirals . or their deputs , february . . captain mastertoun contra strangers of ostend . the lord admiral being out of the countrey , found not necessary to be called in the reduction of a decreet of admirality , where the iudge pronuncer of the decreet was called , inter ●osdem . advocat was found obliged to depone concerning the having of his clients writs , february . . contra rallo . an advocat being in his duty , hindering a suspension to pass , being threatned by a party , who said he would make him repent what he had said if he were in another place , and calling him liar and knave , the lords imprisoned the party , and fined him in . merks , iuly . . mr. david f●lco●er contra sir iames keith . advltery was found not to infer escheat , unless the adulterer were convict criminally , or denunced as fugitive , though he had confessed , and stood in sackcloath a year , ian●ary . . baird contra baird . alibi was found not receivable for proving a false dat● to annul the whole write , where the witnesses insert proved the 〈◊〉 of the subscription , though of a● erroneous date , february . . laird of may contra ross. aliment was found due by the heir to his brothers and sisters , their mother being dead , and they left without any provision , ianuary . . children of wedderly contra laird of wedderly , r●o absente . aliment was found due by an heir-male , to heirs of line , to whom he was obliged to pay such a sum when they were m●rriageable without mention of annualrent or aliment , here the heir-male s●cceeded to a considerable estate , november . . lady otter contra laird of otter . aliment was found due by an heir-male to an heir-●emale of a second marriage , till her age of fourteen , from which time , her portion bear annualrent , and bea● no mention of aliment till then , her mother being dead , and having no way to subsist , without consuming the stock of her portion , february . . frazer contra frazer . aliment was found due by an heir-male , to heirs of line , till their marriage , and not till the term of payment of their portions only , seing the same bear no annualrent , r●o abs●●te , november . . daughters of balmerino contra lord balmerino . aliment of a child was found not due where the child was freely intertained by the mothers father , who demanded nothing during the time of the intertainment , and was holden as freely g●f●ed for all years before the pursuit , iuly . . laird of ludquhairn contra laird of geight ▪ vide mother . aliment was found due upon a bond of provision , granted by a father to his daughter , obliging him to intertain her till the term of payment of her portion , which bear no annualrent , and that not only till the term of payment , but thereafter till her marriage , and even for years in which her mothers brother alimented her gratis , after her fathers death , but for no time of his life , seing she le●t her fathers house , upon pretence of her step-mothers severity , ianuary . ● . steuart contra laird of rossesyth . al●ment of a daughter by her mother , married , was ●ound due , the daughter being appearand heir to her father , whose whole lands the mother liferented , though the daughter renunced to be heir , iuly . . ha●iltoun contra symontoun . aliment was not found due to an appearand heir , who was major , and keeped a brewary , by a liferenter , whose liferent was very mean , and intertained one of his children , ianuary . . stirling contra heriot . ann was found to be the whole year wherein the defunct dyed , if he dyed before michalmas , and if he dyed after michalmas , and before ianuary , to be the whole year in which he dyed , and the half of the next year ; but if he reached ianuary , dying in february , he hath that whole year , iuly . . executors of fairly contra his parochioners . an● of a minister having a wife and no bairns , was found to divide equally betwixt his wife and nearest of kin , iune . . and iuly . . scrymzour contra● executors of murray . ann of a minister dying after michalmas , and before mar●●nmas , was ●ound to extend to that years stipend , and the hal● of the next , iuly . . inter ●osdem . annexed property of the crown was found not validly dissolved , unless the dissolution had preceeded the gift and infeftment , and had proceeded upon weighty reasons , by a special act , and not by a clause i● a ratification of the gift , february . . kings advocat contra earl of mortoun and viscount grandi●ound absent . annvity of teinds included being in question , it was recommended to the parties to settle , but the lords inclined to liberat the teinds , ianuary . . laird of rentoun contra ker. annvs deliberand i , was found to exclude reductions and declarators against appearand heirs , not requiring a charge to enter heir , in respect the appearand heir must therein except upon the defuncts rights , and so behave as heir , iune ▪ . dewar contra paterson ▪ annus deliberandi , excludeth citations , given within that year , here the day of compearance was within the year ▪ ibidem . annvalrent was not found due for sums of money without paction , albeit the money was lent with this provision , that failing heirs of the creditors body , who was very old , the debitor should succeed , december . . logi● contra logi● . annualrent was found due after horning , albeit the decreet being sus●ended , a part of it was taken away , yet annual was found due for the rest , ianuary . . rigg of carberry contra his creditors . annualrent was allowed without paction for a port●on , left by legacy to the defuncts natural daughter , the time of payment of which legacy was her marriage , which being in her power , the lords would give no occasion to hasten the same , but allowed annualrent in the mean time , iune . . inglis contra inglis . annualrent was not found due by a father to his son for a legacy left to his son by his mothers father , and uplifted by the father , during the time he alimented his son in his family , december . . windrham contra eleis . annualrent promised for a time by a letter ▪ was found due in all time thereafter , ianuary . . hume contra seaton of menzies . annual of annual was not found due , though expresly obliged to be payed by a bond , bea●ing , that after each term the annualrent , if it were not payed , should bear annualrent with the principal , which clause was found null , and not in the same case with a bond of corroboration ▪ granted after annualrents were due , accumulating the same , ianuary . . lady braid contra e●rl of king●orn . appryzings were found not to be affected by a bond or a contract amongst the appyzers , to concur and communicat their rights , as to singular successors , seing the contracters were then infeft , iuly . ta●lzi●er contra maxtoun . an apprizing led before the year ● . but no infeftment thereon till after that year , was found not to come in pari passu with posterior apprizings infeft , or charging after the charge or infeftment on the appryzing before . but it did exclude them wholly , december . . sir henry hume contra creditors of kello . an apprizer was found comptable ●or his intromission with such as he entered in possession of , according to the rental the lands gave at his entry , with power to him to give up all defalcations in his discharge , and instruct the same , ianuary . . seaton contra rosewall . an apprizer was excluded by a prior infeftment , though granted to the creditors appearand heir , whereby he became lucrative successor , after this debt contracted , but prejudice to pur●ue him personally , or to reduce on that title , ianuary . . mansoun contra bannerman of elsick . an apprizer pursuing for removing , and mails and duties , his pursuit was sustained only as ●o so much of the apprized lands , as he should choose , worth . per cent , and to compt for the superplus more than his annualrent and publict burdens excepting the defenders house and mains , by the late act of parliament , betwixt debitor and creditor , iune . . wilson contra murray . apprizers competing upon the late act of parliament , bringing in apprizings since . pari passu , was found not to exclude apprizings before , having obtained infeftment since ; but that none could come in with him , who was first infeft , and payed the composition till they refounded their shares thereof , ianuary . . graham contra ross. but also by the tenor of the late act , the first apprizers being infeft in an annualrent , were found to have access to his annualrent , thogh there was no poinding of the ground february . . inter ●osdem . an apprizer was found comptable for the rents of the apprized lands , during the debi●ors minority , contrary the act of parliament . which was ●mended in the late act , . but in the late act resc●ssory , that was not revived , seing all private rights by these rescinded acts. m●dio tempore , were reserved , and this had been the custom for twenty years , february . . rosse contra mckenzie . apprizers competing , the first apprizer having given the first charge on the letters of ●our forms , and before the dayes thereof were expired , the superiour infefting a second apprizer , the infeftment was found collusive , and the first apprizer , giving the ●irst charge , and infeft within a litle time after the second , was preferred , and the first infeftment reduced , was still in possession till now , that the legal was expired , not only the bygone fruits were his own , but that he might redeem within a year after this sentence , seing by the taci●urnity of the pursuer , he was in bona fide to continue his possession , and not to doubt his own right , or redeem a second apprizer , december . . laird of cl●rkingtoun contra laird of corsbie . an apprizing within a year was excluded from coming in pari passu , with a prior apprizing , in respect the prior apprizer , had before the act betwixt debitor and creditor , taken right to a prior apprizing , without necessity to alleadge , that he took the right to shun the expiring of the legal of that prior apprizing , or any other necessary caus● , december . . iohn veatch younger of dawick contra alexander williamson . apprizers competing , where the first apprizer being infeft would possess but a part , the debate being as to the rest , betwixt the second apprizer , not infe●t , and the third infeft ; the lords preferred the second as needing no infeftment , december . . doctor ramsay and hay contra seatoun . apprizers come in pari passu , not before the date of the late act , but from that time both parties sums should be accumulate , and the mails li●ted proport●onally , but pr●ceeding mails should be imputed in payment of the expence of the apprizing , composition to the superiour , and then in payment of the principal sums , ianuary . . grahame of blackwood contra brow●s . an appri●ing being to be led , the present h●ritor and possessors obtained assessors to be joyned to the messenger , that he might stop the apprizing by production of his in●e●tment , ●ebruary . . sir iohn fletcher supplicant . an apprizing ordained to be allowed , and registrat after the debitors death , and long after the sixty dayes were past from the date of the apprizing , and that upon supplication , without citation ▪ in respect it was found ▪ that the apprizing registrate quandocu●que , would be preferred to others , not sooner , or more orderly registrate , iune ● . . an apprizer pursuing for mails and duties , was excluded till he ●atisfied the superiour for a years rent , he being now ready to rec●ive him , albeit he ●as charged before , and did not obey , iuly . . iohnstoun contra tennents of auchincorse . an apprizing being lost , and a new extract thereof being sub●cribed by the clerk of the apprizing , but not by the messenger , being produced as a title in a process , the same was not sustained without the messengers subscription , or his executions ; but the party was remitted to prove the tenor thereof , december . m●culloch contra craig . an apprizing was found to be satisfied by introm●ssion , not only within the years , but also within the three years added by the act betwixt debitor and creditor , though the apprizing was led long before that act ianuary . ● . clappertoun contra laird of torsonce . here it was also found that a part of the lands apprized being sold irrede●mably by the apprizer , were redeemable within thr●e years ; and that the singular successor was only comptable for the rents thereof , and not the apprizer who had sold the same before the act. an apprizing led upon several sums , of one whereof the term of payment was not come , the apprizing was ●ound null , as to that sum ; but whether it would be null in totum , or whether it would be valide to carry the whole right of the lands , as that sum had never been in : or if a proportional part of the land , effeiring to that sum , would be free of the appr●izing , the lords decided not , but were of different iudgements , february . . sharp of houstoun contra glen . an apprizing was found extinct , as being satisfied by the debitor , and retired by him with a blank assignation thereto , lying by him at his death , though his son thereafter filled up his name therein , which was instructed , partly by the sons oath , which was found not sufficient to prove alone , and partly by witnesses , ex officio , one of which , who proved most clearly , was his brother , february . . creditors of the lord gr●y contra the lord gray . an apprizing on a bond bearing a sum to be payable without requisition , was found valide without either requisition , or charge of horning , iuly . . thomson contra m●kitrick . an apprizing was found extinct , as to a party in whose favours the apprizer granted a back-bond , bearing ( that the apprizing should not be prejudicial to that parties right ) which was found relevant against a singular successor , viz. the kings donator having right to the apprizing by fore●aulture , iuly . . earl of southesk contra marquess of huntly . an apprizing was found satisfied within the legal by intromission , and no part of the martinmas rent was ascribed to a tercers right , not being served , though she gave tack to the apprizer , he having entered on the debitors possession , december . . zeaman contra o●●phant . an apprizing led against an appearand heir , as specially charged to enter heir , was preferred to the infeftment ●f the next apparent heir , after the heir charged his death , or the infe●tment of their singular successor granted after the matter became litigious , albeit the apprizer from the apparent heir charged , was never infeft , nor charged the superiour upon the app●izing , neither was the apparent heir himself infeft , but that the superiour might be cha●ged at any time after the apparent heirs death ; and albeit the next apparent heirs ▪ could not enter heirs to the former apparent heir charged , but to his predecessor , to the effect they might reduce or redeem the apprizing , led against the former apparent heir , february . . iohnstoun contra erskin . an apprizing was found redeemable from the eldest son , and apparent heir of the debitor , within ten years , for the sums he truly payed out , by the act of parliament . albeit his father was living the time of this process , iune . . ●urnet contra n●smith . an apprizer since . pursuing the rest for his part of the duties , as coming in with them pari passu , by the act . betwixt debitor and creditor , his apprizing was ●ound not to be effectual , till the allowance thereof were registrate , conform to the late act of the same parliament , anent registration of allowances , but that it required no determinate time to registrate , but whensoever registrate it would be effectual as to all rights , not compleated before registration , iuly . . steuart contra murra●● . an apprizing on an assignation to a cautioner , or for his behove , apprizing for the whole sum , without deduction of that cautioners part , was not found null , in totum , but restricted to the sum truly due , being within the legal , iuly . . iohnstoun of sheins contra arnold . an apprizing and infeftment thereon , granted by the excheque● of course without notice , when the king by forefaulture , was im●ediate superiour , was found not to supplie a confirmation , or to exclude the donator of the forefaulture , pursuing a removing on a posterior gift , december . . earl of argile contra stirling . apprizing with a charge against the superiour , does not exclude the liferent escheat of the vassal , against whom the apprizing was led , without consideration whether the superiour was in culpa , by not obeying the charge , iune . . dowglat contra lisk . an apprizer having at several times apprized on several sums , and entered in possession by the first apprizing , before the seco●d was led , was found to impute his whole intromission to the first apprizing , that thereby it might be satisfied within the legal : the apprizer was also found comptable for what sums he received , for a part of the lands sold by him within the legal , but for no greater price : and a joynt probation was refused , though it was in the highlands , the apprizer offering to prove by witnesses above exception , and the lords ordained both the feears to be produced , and the greatest prices to be proven , that they might choose what rate to ●ollow , ianuary . . mckenzie of puglas● contra ross of auchnacloich . an apprizing led against one charged to enter heir , who dying un-infeft , his sisters as heirs to his grand-father , to whom he was charged to enter heir , were ●ound to have the right of reversion of the appri●ing , albeit they were not heirs to their brother , who was charged to enter heir , but dyed un-infeft , ianuary ● . . iohnstoun contra erskin lord lyon. an apprizer having charged the superior , was found not thereby to become vassal , so as by his death the lands would ●all waird , but by the death of the party , against whom the apprizing was led , unless the apprizer when he charged the superior , had presented a chatter , with an offer of money , and a bond for what ●urther the lords should modifie for the years rent , and had put the superior in culpa aut mora , in not infefting the apprizer , and that whether the superior required the same or not , february . . black donator by the duke of hamil●oun contra french. vide liferent , dowglas contra l●●k . an apprizing was found extinct , by the intromission of him to whom the apprizer granted back-bond , declaring the apprizing to be to his behove , and that against a singular successor , who thereafter obtained disposition and in●e●tment upon the apprizers resignation , iu●y . . kennedy contra cuninghame and wallace . an apprizing posterior was preferred to a prior appri●ing , being less formal and solemn , according to the custom then in u●e , the posterior being upon denunciation at the mercat cro●s of the sheriffdom , and the other at the mercat cross of the regality , when regalities were supprest by the vsurpers , and was led at glasgow , iuly . . lady lucia hamiltoun contra boy● of pitcon . an apprizer was ●ound comptable for the whole rents of the lands he possest by his apprizing , both for his ommission and intromission , and that not only till his apprizing was satisfied , but for all years subsequent , that he continued to intromet with any part , ianuary . . cass contra cunninghame . an apprizing coming in the person of the apparent heir of the principal debitor , was ●ound extinct by satisfaction of the ●ums payed by the apparent heir therefore , summarly without reduction , not only as to the estate of the apparent heir , but as to the estate of a cautioner ●or that debt , which was also apprized , february . . dumbar of baldoon contra dick. an apprizer of an annualrent was preferred to an arrester , although there was no diligence upon the apprizing , for nine years before the arrestment , and that there was no infeftment , or lawful charge on the appr●zing , in respect it was a prior judicial assignation , requiring no intimation , february . . lord iustice clerk contra fairholme . apprizings deduced since ianuary . within year and day of the first effectual apprizing , were found not to be compted by a year from the infeftment or charge , by which the apprizing becomes effectual , but from the date of the first effectual decreet of apprizing , by the act . betwixt debitor and creditor , which bears , that all such apprizings shall be , as if one apprizing had been led for the whole , iuly . . laird of balfoure contra dowglas . an apprizing was found satisfiable by exception or reply , as being to the behove of the debitor , or his eldest son , for the sums that were truly payed out by the act of parliament . albeit the apprizing was expy●ed , ibidem . an apprizing was sustained , though it proceeded on a bond , payable upon requ●sition , and that the claim of the apprizing did make mention of the requ●sition , seing the requisition was done , and is now produced ▪ and though the messenger having met at the dyet appointed for the apprizing , did adjourn the court of apprizing till the next day , in respect of a great rain , and that the place designed for the apprizing was upon the open field : and though the place of the apprizing was by di●pensation , neither at edinburgh , nor at the head burgh of the shire , and past as a common bill of course , iuly . . heirs of lundy contra the earl of southesk and others . in apprizings messengers are prohibite by act of sederunt , to continue the dyer of apprizings , except upon absolute necessity , that parties interressed be not put to uncertain attendance : and likewise , di●pen●ations for the place of apprizings is prohibite to be past of course amongst other common bills , without being read , ibidem . an apprizing acquired by the appearand heir of the debitor , was found satisfiable by any other of the defuncts creditors , by paying what the appearand heir truly payed therefore , albeit the appearand heirs disposition was before the act of parliament . seing his infeftment , by which the right real is established in his person , and his author was denuded , was after the said act ; and albeit the apprizing was not expired , when the appearand heir acquired right , but that it became to expire , continuing in his person , and that it was redeemable within ten years from the date of the acquiring , but not from the expiring of the legal , i●ne . . maxwel of nether-pollock contra maxwel of kirkconnel , an apprizer was found not obliged to restrict his possession to his annualrent , in favours of posterior apprizers , by the clause for restriction in the act of parliament . which is personal and peculiar to the debitor ; but seing the first apprizer would not admit the posterior apprizers to possess , he should be comptable for the whole rental , from the time of the exclusion , iuly . . murray contra earl of southesk and others . arbiters got warrand on a supplication to cite witnesses before them , ianuary . . ker of cavers and scot of goldenberry supplicants . arrestment was not elided , because the sum arrested was discharged before the arrestment , seing it appears the discharge was not delivered to the party . in whose hands the arrestment was made , nor none to his use , before the arrestment , december . . boyd contra lairds of niddrie and edmonstoun . an arrester and an assigney competing , the assigney was preferred , because the arrestment was loosed , albeit the sum arrested remained still in the same hands , because the arrestment was on a dependence , and no decreet thereupon , against the principal debitor , iuly . . raith of edmonstoun contra laird of niddrie and lady vvolmet . arrestment cannot be loosed without caution , super cautione juratoria , iuly . . colledge of st ▪ andrews supplicant . arrestment was found not to affect the sallaries of the lords , and the kings pensions , conform to a letter and act of sederunt , february . . sir robert murray contra arrestment execute on the sabbath day , was found null by exception , february . . oliphant contra dowglas of dor●och . arresters competing , the second being on letters of supplement , against a party ou● of the countrey , was preferred to the first , being at his dwelling place , without supplement , ianuary . . lord lowre contra givon . arrestment on a bond not registrate , was found looseable , as not being on a d●●reet of registration , or any other , and after the loosing , the arrester was found preferable to a posterior assigney , seing the money was yet in his hand , in whose it was arrested , february . . grahame contra brown and doctor martine . arrestment being laid on in the hands of a party who entred in a minute , or bargain of land , though he passed therefrom ▪ yet the price was ordained to be made forth-coming , november . . campbel contra doctor beatoun . arresters having both obtained decreet in one day , were found not to come in equally , but the first arrester was preferred , have done equal diligence , february . . collonel cunninghame contra lyel . an arrester and comprizer competing for a s●m , whereupon apprizing was led at the instance of the common debitor , whereupon no infeftment followed , yet the arrestment upon the said first apprizers debt , was not ●ound habilis modus , to make forthcoming the sum appryzed for , but the second appryzer was preferred to the arrester , february . . lockhart contra lord bargenzie . an arrestment was found to give action after the death of the debitor , whose goods were arrested , without a new decreet against any repre●enting him , seing he died at the horn , and so could have none to represent him in mobilibus , february . . givon contra hume : here the defuncts donator to his escheat concurred , an arrestment of annualrents laid on curr●nte termi●● , was preferred to an appryzing of the lands , led before that term , seing infeftment followed not thereon , before the term , iuly . . luster contra aitone and sleigh . arresters competing , the ●irst arrestment , and first citation before the lords and compearance sine mora , was preferred to a posterior arrestment , and citation before the sheriff , though obtaining the first decreet in absence , the arrester not being in that shire , november . . montgomery contra rankine . arrestments were found not to reach the fie of a servant , in so far as was necessary for the servants aliment , conform to the condition of his service , but only as to the superplus , iuly . . ●oog contra davidson . arrestment was found to reach the next terms rent after it was laid on ▪ though it was not due when it was laid on , iuly . . l●ssy contra cunninghame . arresters compe●ing , the posterior arrestment by four dayes , was preferred to the prior , in respect the term of the sum , for satisfying of which , the arrestment was laid on , was not come the time of the citation , or competition before the baillies , though by an advocation , raised by the prior arrester , without a just reason of advocation , the term was past before the competition before the lords , iuly . . charters contra neilson . an assigney was not excluded by payment made to the cedent after intimation , albeit the assignation was to the behove of the cedents son , without a cause onerous , ianuary . . ross of earles-milns contra campbel of caddel . an assigney constitute by a tutor , who took assignation to his pupils bond , was found to have no process against the pupil , till the t●tor compts were made , unlesse the assigney fo●nd caution for the tutor , ianuary . . ramsay contra earl of wintoun . an assignation omnium bonorum , by a father to his son , was sustained to give processe against the debitors , albeit not intimate in the fathers life , and so in bonis defuncti , iune . . hallyburtoun contra earl of raxburgh . an assigney may be prejudged by the cedents oath , before intimation ; or if the debitor pursue the assigney , ad hunc e●●ectum , to take away the bond before intimation by the cedents oath , and his being so called , and producing the assignation , will not exclude the cedents oath , february . . laird of pitfoddels contra laird of glenkindy . an assigney was found to have interest to pursue , albeit his assignation was not intimate before the cedents death , without necessity of confirmation , iuly . . muirhead contra 〈◊〉 intimation , november . . guthrie contra sornbeg . an assignation being gratuito●s , the cedents oath was found sufficient against the assigney , iune . . wright contra sheils . the like , iune . . iack contra mowat . an assignation to a reversion , being registrate in the register of reversions , and a liferent infeftme●● of the wodset land , registrate in the register of seasines , was found sufficient to give the wife interest , even in her husbands time to redeem , that she might redeem the wodset land , for her liferent use , and to be preferred to an appryzer of the reversion , after the wifes right , registrate as said is , without necessity of any other intimation , december . . beg contra beg. an assignation to a gift , when it is incompleat , and before it passe the exchequer , doth not exclude the donators back-bond , at passing thereof , even as to the assigney , ianuary . . dollace contra frazer of streichen . an assignation to such a sum yearly , out of the first and readiest of the teinds of such lands , found not preferable to a posterior appryzing of these lands and teinds , as an assig●ation to the tack , or whole tack-duty of the teinds , would have been preferred as habilis modus , february . . watson contra fleming . assignation vide compensatione , cockburn contra laird of craigivar . an assigney to a tack , which is transmitted by assignation , was not found as a singular successor to lands , passing by infe●tment , so that what is competent against the cedent in tacks , is competent against the assigney , except as to the manner of probation by the cedents oath , december . . swintoun contra brown. assigneys were found to have right to an annualrent , granted by a father to his daughter and her heirs , without mention of assigneys , though her brothers and sisters were substitute , failing the heirs of her body ; and though the assignation was granted without a cause onerous to another brother , i●●e . . steuart contra st●uart . an assignation without intimation , was preferred to an executor creditor of the cedent , even as to the executors own debt , iuly . . executors of redpeth contra iohnstoun . an attester of a cautioner in a suspension , declaring that the cautioner was sufficient , being conveened subsidiarie , was found to be no further lyable , than that the cautioner then was holden as sufficient for the sum charged for ▪ december . . paterson contra hume . a baillie of regality amerciating parties for a wrong committed , in the thrusting out of others out of a seat in the church , in time of divine service , and beating of them , his decreet was sustained : though it extended to two hundred pounds , half to the party , and half to the fiscal , ianuary . . steuart contra boggl● and matthie . a baillie of a barony of kirkland , being infeft by the abbots , with full iurisdiction , civil and criminal , with power to repledge , and with power to apply the whole amerciaments and casualities to his own behove , his right was found not to be derogate from , or prejudged by the kings erecting a part of that barony in a burgh royal , and giving them power of heading and hanging , and all iurisdiction , unless they extinguished the baillies right by prescription ; albeit it did not appear , that these kirklands were erected in a regality , no mention being made thereof in the infeftment of bailliarie , nor was it commonly known under that title , february . . lord colvil contra town of culross . a baillie of regality was found to have power to amerciat the inhabitants of a burgh of regality , though having baillies of their own in the burgh , in respect the burgh being vassals to the baron , their power is cumulative , and not exclusive of his iurisdiction ; but there is place for prevention , to the first attatcher doing diligence , ianuary . . the baillie of regality of killimuire contra burgh of killimuire . bairns provisions being upon bond subscribed by their father , but not delivered till he had disponed his whole estate to his eldest son , with warrandice from his own deeds done , or to be done , and reserving his liferent of a part , which was found sufficient to reduce the bonds of provision , and appryzing thereupon , as not obligator till delivery , or the death of the father , and revocked indirectly by the sons disposition , ianuary . . laird of glencorse contra his brothers and sisters . a bairns provision posterior in date and delivery to a creditors debt , the creditors appryzing , though posterior , was preferred in a reduction to the appryzing on the bairns portion though prior , iuly . . iohnstoun of shems contra arnot , vide children , ianuary . . erskines contra r●ynolds . a bond bearing borrowed money , was found not reduceable upon the act against bankrupts , but that the bond it self did sufficiently instruct the borrowing of the money , as the cause onerous , iune . . mo●teith contra a●derson . a bond was found heretable as bearing annualrent , though it was but . per cent , in a bairns portion , iune . . p●tcairn contra edgar . bonds bearing annualrent are moveable till the first term of payment of annualrent , and fall within single escheat , iune . . dick contra keir . a bond by a father to a son , though bearing borrowed money , yet was presumed to be for love and favour , and the same with an appryzing thereupon , was reduced at the instance of anterior creditors , who obtained decreets after the bond for bargains , which were proven by witnesses to have been contracted before the bond , ianuary . . creditors of pollock contra pollock his son. a bond by a father to his son , after he was married and out of his family , payable after the fathers death , was found not reduceable at the instance of posterior creditors of the father , by the act of parliament . against fraudful alienations , though it were reduceable upon evidence of fraud , ex jure communi , which were appointed to be condescended upon : ibidem . a bond taken by a father from a son , after contract of marriage ▪ vide contract . barons decreets are valide in vaccance time by their priviledge , without dispensation , and they are competent to iudge the multures due by their vassals , february . . nicolson contra forbes of tillicutri● . a barony was found to include a burgh of barony as p●rt and pertinent , though not exprest in a donators infef●ment , albeit it was exprest in former infeftments , and particulars of less moment were exprest in this infeftment , as comprehended in the barony , ianuary . . earl of argile contra campbel . a base infeftment of annualrent was sound valide against a posterior publick infeftment , because thereupon there was a decreet of poinding the ground , though it could take no effect for a long time , till the entry to the annualrent , which was not , till after the constituents death , , and . of february , . creditors of kinglass competing . a base infeftment by a husband to his wife on her contract , was validate by , and preferred upon the husbands possession , though the wi●es infeftment was of annualrent , and the husbands of property , november . . lady grang● contra murray , where it was found , that from the very date it was validate and preferred to any other , though prior and base , but apprehending possession upon a citation before candlemas , it being ferm land , and a decreet thereon in march thereafter . two base infestments of annualrent competing , one to a wi●e , the other to a creditor , the wife was preferred , being cled with possession by the husbands possession , which was not found competent to the creditor , though his infeftment was prior , and though he used inhibition before the next term , after the wifes infeftment , and alleadged the husband could have no possession after the wifes infeftment , before his diligence , which the lords repelled , because the husband was in a present current possession , and nor in acquirenda possessione , but the wifes infeftment was only sustained in prejudice of this creditor , in so far as it had an anterior cause to his debt : the husbands possession was also found sufficient to validate the wifes infeftment of annualrent , though he possessed the property which includes eminenter , all other rights , november . . inter cosdem . an infeftment of warrandice lands being in the same infeftment with the principal lands , and both holden base , was preferred to a posterior publick infeftment of the same warrandice lands , though cled with long possession , and that upon an action of mails and duties upon the distresse , without reduction , ianuary . . brown contra scot. a base infeftment by a father to a son , reserving the fathers liferent , was found not validate by the fathers continuing his possession , but the fathers creditors appryzing were preferred to the donator of the sons forefaulture , founding upon the sons infeftment , iune . . hume contra hume . a base infeftment of annualrent was preferred to a posterior appryzing and charge before the term , at which the annualrent begane to be payable , in respect the annualrenter was in possession of the land , out of which the annualrent was payable & intus habuit , viz. his annualrent proportionally from the date of his right , iune . . stevinson contra dobbie . a base infeftment by a father to a son , reserving the fathers liferent , was found not validate by the fathers possession , albeit the father disponed the lands reserved to a third party , who did possess ; but the disposition was of the fee , and no mention of the liferent reserved , december . . lord newbeath contra dumbar of burgy . a base infeftment was excluded by the liferent escheat of the granter , albeit the base infeftment was before the rebellion , seing it was not cled with possession in cursu rebellionis , within year and day . february . . miln contra clerkinson . a base infeftment by a man to his wife , was preferred to a posterior publick infeftment , albeit the base infeftment was not cled with possession of the husband himself , but by others deriving right of wodset , or other temporary right from the husband , or his authors , which was compted as the husbands possession , to validate the wifes base infeftment , iuly . . lady burgy contra strachen . a base infeftment of annualrent was found to be validate by receipt of a part , though far within a terms annualrent , and not relative to the infeftment , but to the bond whereupon it followed , and though there was no ann●alrent due before the infeftment , yet seing the receipt bear in part of payment of bygone annualrents , the annualrenter was allowed to ascribe it to the annualrents due after the infeftment , to exclude an infeftment on an appryzing , which appryzing was led before the receipt , but the infeftment thereupon was after ▪ and the receipt was proven by an apocha under the debitors hand , iuly . . hume contra hume and the tennents of kello . a base infeftment of annualrent on a bond bearing . merks of borrowed money ; and . merks of portion , the one half of the whole sum and annual●ents thereof , was suspended till the fathers death , yet payment of the annualrent of the other half not suspended , was found sufficient to validate the whole infeftment , and to prefer it to a posterior publick infeftment , february . . keir contra keir . a base infeftment in warrandice granted by a husband to his wife , holden of himself & ex intervallo , after the principal infeftment , was found valide against a posterior publick infe●tment of the ●ame warrandice lands , as being cled with the husbands possession in the principal lands , and that these needed no declarator of distress , or eviction , but a pursuit of removing , or mails and duties upon eviction is sufficient , which cannot be excluded by a possessory judgement upon . years possession , by the publick infeftment , unless it were . years after the eviction , february . . forbes contra innes . base infeftments granted by a father to his two sons of the same date , one of property of lands , and another of annualrent forth thereof , was found both valide , as being cled with the fathers possession , reserved in both , there being no suspition of defraud of creditors , or competition with them , and that a singular successor appryzing and infeft from the one , was not preferable to a posterior adjudger from the other , iune . . chem contra chrisly . a base infeftment of annualrent was found validate by possession , upon another infeftment of annualrent , in corroboration of the former , out of distinct lands , whereby both infeftments as to both lands , were found valide , though no payment was made by the debitor , or by the tennents in the first infeftment , iuly . . alexander contra the laird of clackmannan . a base infeftment to a creditor , was preferred to a posterior publick infeftment , granted to a wife by an additional ioynture , in respect there was a citation on the base infeftment , anterior to the wifes publick infeftment , which was found to validate the same , and sentence of preference of poynding of the ground , was now granted therein , ianuary . . bell of belfoord contra lady ruther●oord , a base infeftment never cled with possession , was found valide to exclude the terce of the granters relict . ib●dem a base infeftment by a father to his children , was found not validate by the fathers possession , wherein he continued , albeit he had a factory from the children : here it was not alleadged that the father had granted discharges , or used citation expresly , relative to the factory , iuly . . gairdiner contra colvil . bastardy being gifted by the vsurpers , defends the bastards debitors no further than what they bona fide payed to the donator , but not for what was yet in their hands , which belongs to the kings donator . iuly . ● . windrham contra megregors . bastardy was found not to be relevantly libelled , that the defuncts father and mother were not married , but that it behoved to be alleadged , that the defunct was commonly holden and repute bastard : but that it was also sufficient , that the defuncts taking a legitimation , had acknowledged his bastardy , february . . kings advocate contra craw. bastardy was found not to be inferred by the negative presumption , that the father and the mother were not married , but that it behoved to be proven positive , that the defunct was holden and repute bastard , iune . . livingstoun contra burn. bastardy puts the donator to no better case , as to back-bonds , or mutual obligements , than the bastard his heir would have been in , iune . . alexander contra lord sa●toun . behaving as heir by intrometting with the mails and duties of the defuncts lands , was elided , because the defender intrometted singulari titulo , by an appryzing , though the legal was not expired , unless it had been clearly satisfied by intromission , or otherwise , ianuary . . barclay contra laird of craigivar . behaving as heir was found in no time coming to be ●lided by taking right to any appryzing or adjudication , led against the intrometters for their own debt , real or simulate , though such rights were expired , february . . act of sederunt vide , ianuary . . glendoning contra earl of nithisdail . behaving as heir was not inferred by in●romission with the rents of the lands , which were disponed by the defunct , and infeftment thereon ; but to the behove of the defender the appearand heir , ianuary . . harper contra hume of plandergaist . behaving as heir was inferred by the appearand heir , his in●rometting with the rents of lands belonging to his father the debitor , in so far as being disponed to the defender , they were redeemed by him , though no declarator or new infeftment followed ; and also found by intrometting with the fathers whole silver-work , without alleadging a formal drawing of the heirship , or taking any of them as such ; and though the lands were appryzed from the defunct , seing the legal was un-expired , and the defender had no right from the appryzer , february . . hamiltoun contra hamiltoun . behaving as heir , by intrometting with heirship was not ●lided , because the defuncts lands were apprized , seing the legal was not expired before his death , february . . cuthbert of drakies contra m●nro of foulis . behaving as heir was not ●nferred by intromission with the rents of the defuncts lands , which were appryzed , and whereunto the appearand heir acquired right , before he fell to be apparent heir , though he continued to possess after the appryzing was satisfied by intromission , february . . inter cosdem . behaving as heir was elided as to heirship , because the defunct dyed rebel , and his escheat was gifted and declared ibidem . behaving as heir , by medling with heirship , was not elided , because the defunct dyed at the horn , and thereby nihil habuit in bonis ; nor yet that the escheat was gifted before intenting of this cause ; but that it was gifted and declared before , iune . . gordoun of l●smore contra keith . behaving as heir was elided , because the defunct was rebel , his escheat gifted and the appearand heir intrometted by the donators rights or tollerance , and that before intenting of the cause , albeit no declarator thereon , iuly . . innes contra wilson . behaving as heir was not sustained upon intromission , had by a tutor , november . . boyd contra t●lzi●er . behaving as heir was not sustained by heirs of line , their renuncing to be heirs ; in favours of the heir-male , to whom the father had disponed , seing they gave no right thereby , hurtful to creditors , but gave a renunciation voluntarly , which law would have compelled them to give , though for their kindness they got a sum of money , iuly . . scot contra heirs of auchinleck . behaving as heir by intromission with the rents of the defuncts lands , was elided by tollerance from a donator of recognition , albeit not declared till after the intromission , the defender paying the single value , iuly . . ogilby contra lord gray . behaving as heir by intromission with the duties of the defuncts lands , was elided by a disposition from the defunct to the intrometters son , the defuncts oye , though without infeftment , or by a tack by the apparent heirs husband , though expired before the defuncts death , as continuing per tacitam relocationem , ianuary . . re●d contra salmond . behaving as heir was sustained by exception , ianuary . . forbes contra innes . behaving as heir was found to be instructed by a discharge granted by the party as appearand heir , bearing receipt of the defuncts charter chist , without any inventary or protestation , and keeping of it two years , without necessity to alleadge that any use was made of the writs , but was not inferred by raising of breives to serve heir , wherein no service followed ; or by revocking deeds done by the defunct in his minority , iune . . eleis of southside contra casse . behaving as heir was not inferred by the appearand heirs having right or tollerance from app●yzers , and intrometting thereby , even within the legal ; but was inferred by continuing the defuncts possession , before obtaining such warrand , and that any creditor , though not appryzer , pursuing the appearand heir , behaving as heir , and he defending upon the right of an appryzing , that the creditor might summarly by reply , prove satisfaction of what he truly payed out , by intromission or present payment , and thereupon he was obliged to assign , or dispone to the creditor , iuly . . maxwel contra maxwel . behaving as heir was not inferred simply where the defender was infeft , as heir to her mother , her father and mother being infeft in conjunct see upon their contract of marriage , by which there was probable ground to think that her mother was feear and not her father , iuly . . gairns contra sandilands . bills of exchange being accepted , and before the term of payment the accepter dying , no exchange or re-exchange was found due , but the obtainer of the bill might either return upon the drawer , for single value , or proceed against the successors of the accepter ; this bill was protested for not payment , at the dwelling house of the defunct , iuly . . kennedy contra hutcheson . a blank bond , as to the creditors name , was found to constitute the receiver thereof to his own behove creditor , and that it would be affected with his deb●s and deeds , and fall under his e●cheat , as if his name had been filled up before , and before any other name was filled up , shown or intimat , an arrester being creditor to the person who got the bond , is preferable to him whose name is filled up therein , november . . telzifer contra geddies , debated again , and so decided , december . . a blank bond being filled up by him who r●●eived it in name of another , and delivered to that other , and by him shown to the debitor , these particulars being proven by witnesses ex officio , the ●●●ty whose name was filled up , was preferred to a creditor of him to whom the bond was first delivered blank , arresting all sums due to him in the debitors hands , but after filling up , and shewing of the bond to the debitor , without necessity of an intimation by instrument , ianuary . ● . birnie contra he●drieson and george vide compensation inter ●osdem . a blank in a disposition , whereby lands are disponed to two for themselves , and the creditors of the disponer afterspecified ; after which several ●ines were written with another hand , inserting the particular creditors and sums , without mention of the writer of that part of the writ , whereupon it was presumed , that that blank was filled up after the date of the writ , and after another creditors inhibition , unless the contrary were proven , not by the trusties oath , but by the witnesses insert , or other witnesses above exception , ianuary . . lady lucia hamiltoun contra the creditors of monkcastle . bloodwits were found due to a superior infeft cum bloodwitis , albeit not a baron holding immediatly of the king , december . . cranstoun contra pringle . bonae fidei possesor ●acit fructus consumptos suos , though he have not possessed so long as to obtain a possessory ●udgement , november . . guthrie contra laird of sornbeg , and though the other parties infeftment was registrate . bonae ●idei possesior , &c. was found relevant to defend a party possessing by a contract with a minor , though reduced upon minority , as to the years uplifted before the reduction , february . . earl of wintoun contra the countes of wintoun . bonae ●idei possessor , was found liberat from the mails of a booth , whereof he had tack till a sum were payed , albeit the setter was but li●erenter , and had purchased the tenement to himself in liferent and to his son in fee , but the father was commonly repute feear , and did not set the tack as liferenter , yet the same was excluded from the duties before citation , and was not found to have right from a warning he had made after his fathers death , by chalking of the door , without any other intimation , february . . hamiltoun contra harper . bona● fides of creditors lending their money , and seing a wifes contract registrate , bearing such a sum to be imployed , was found not to defend them against the wife , who obtained a declarator of vitiation of the principal contract by her husband and fathers diminishing the ●ocher and ioynture , to be extended and amended as it was at first , iune . . hunter contra the creditors of peter . bona● fidei possessor , &c. was found of no effect to one who obtained decreet of removing , for not payment of the duties in absence , and produced not his infeftment , but an infeftment of another person of the same name , which being a ●raudulent deed , he could not thereby have a title bonae fidei , iuly . . neilson contra m●nzies of enoch . bvrghs were found to have no power to stent any part of the charges of their commissioners , sent to the convention of burrows , upon these who had no trade in their town , but only tenements , or for any part of a second ministers stipend , unless it had been due by law , sentence , consent of party , or prescription , february . . boswel contra the town of kirkaldie . the priviledge of burghs by the act of parliament , that no trads-men should exercise their trade in suburbs , was found only to extend to such suburbs as had no priviledge , but if the suburbs were erected in a burgh of regality , or barony , or were within a barony , the inhabitants might freely use these trades albeit some of them had given bond to pay such a duty for the liberty thereof ; the same could only bind themselves and not their neighbours , or the heritors ground with a servitude , without his consent , iuly . . town of pearth contra the weave●s in the bridge● end of pearth . a bvrgh royal having obtained decreet against certain persons in a burgh of borony , to desist from merchant trade , and impowering the burgh to sease on the merchandise ▪ and the persons of the contraveeners , was found not to militate against others than those individual persons , and not against the lord or baillies of the barony , and that there was no wa●rand in law to in●arcerate persons hoc ordine , february . . town of linlithgow contra unfree-men of borrowstounn●s● . a burgh royal pursuing a burgh of barony for desisting from merchant trade ; the lords ●ound the letters orderly proceeded , till the burgh of b●rony should find caution to desist from merchant trade in general , but would not suffer to condescend upon particulars , as to the retailing of wine , &c. which had been forborn by the lords these , or . years , iune . . town of cowper contra town of k●oucher . a burgh-royal having immemor●al possession , and free trading on the river on which it stood , was found not to be burdened with anchorage , measurage , tunnage and weyage , granted by the king thereafter to another burgh , in stations on that same river , though cled with . years possession , but neither universal nor peaceable , but interrupted , february . . town of glasgow contra town of dumbartoun . a burgh royal being pursued by one who had lands within their burrow-lands , and houses within their town , were found not lyable for any stent out of his personal estate , or trading , or for the towns debts , or second ministers stipend , unless he had consented , or had been in immemorial custom of payment , iuly . . bosewel contra the town of kirkaldy . a burgh royal and their trads-men , were found not to have right to hinder the exercise of trads-men , no ways adjacent to the town to exercise their trade , upon pretence of the act of parliament , prohibiting work-men to exercise their trades in the suburbs of royal burrows , ia●uary . . laird of polmais contra trads-men of stirling . caption was granted summarly upon supplication against a bankrupt , who had unexpectedly and fraudulently broken , and fled , though he was not rebel , but the kings free leidge , november . . creditors of mason supplicants . casvs fortvitvs , was found not to liberate the grasser of a horse that broke his neck , where the owner of the horse appointed him to be keeped in at hard meat , ianuary . . scot contra gib . a cavse onerovs of a disposition , by one brother to another , was found not to be instructed by the narrative thereof , but behoved to be instructed aliunde , november . . whitehead contra lidderdail . a cause onerous of a disposition , was found not instructed by its own narrative , or the acquirers oath , though he was not a conjunct person with the disponer , seing the disposition bear to be to two persons for themselves , and to the behove of others , whose interest was evacuate , as being filled up after an inhibition , and the disposition did not express what the acquirers own interest was , iuly . . lady lucia hamiltoun contra boyd of pi●con . a cavtioner for executors was found not conveenable till the executor be discust , and that decreet is not a sufficient discussing , without registrate horning , though the executor have no lands , and though it was alleadged he was bankrupt , iuly . . brisb●●e contra monteith . a cautioner in a testament was found conveenable and comptable with the executor , before they were discust , but superceeded all execution against the cautioner , till the executor be first discust , december . . dowglas contra the lady edmonstoun . a cautioner for an apprentice was not liberate from causing the apprentice serve his time , and pay damnage for his absence , because the merchand suffered him to go over sea , and intimate not to the cautioner to restrain him , yet the penalty was modified to . pounds , iune . . allan contra paterson . cautioners conjunct , getting assignation from the debitor , were found to have access to the rest , allowing their own part , but are not obliged to accept their part of what they truely payed by composition , iuly . . ni●bit contra lesly . a cautioner was not found lyable to pay , unless the debitor assign him to the debt , and all security he had from the principal thereof , ianuary . . lesly contra gray : the contrary was found , iuly . . hume contra crawford of kerse . so this is arbitrary , and according to the favour of the case . a cautioner as law will , being obliged to present a party at all the dyets of process , and pay what should be decerned against him , if he did not produce him within term of law ; having produced the party , and taken instruments protesting to be free , he was found liberate , albeit at that same time the party produced an advocation , and was not incarcerate , seing the baillies might have incarcerate him , notwithstanding of the advocation , february . . contra mcculloch . a cautioner as law will , not being both judicio si●ti & judicatum solvi , was liberate by puting the party in prison , though not judicially , when the cause was called , iuly . . thomson contra binnie . a cautioner in a suspension of a bond , wherein there were five cautioners , being distressed , having payed and obtained assignation from the creditor , was found to have accesse against the first four cautioners , as if he had been cautioner with them , allowing his own fifth part , february . . arnold of barnkaple contra gordoun of cholme . a cedents oath was found to prove against an assigney , being the cedents son in the same family , having no ●eans of his own to acquire , and the assignation being gratuitous , november . . white contra brown. certification was not sustained against the writs granted to the defenders authours , but such as were called for , though the writ were alleadged to be in his own hand , and these authours fully denuded , ianuary . . hume of st. bathin● contra orre and pringle . certification was not admitted against the letters and executions of an appryzing , there being no reduction intented till . years thereafter , november . . blackwood contra purves . certification was not admitted against a writ registrate in the register of session , where the extract was produced , albeit the principal was not produced , and there were pregnant evidences of falshood ibidem . certification contra non producta , was stopped upon producing , and offering to dispute that the writs produced , excluded the reducer , without necessity to the defender to declare that he would make use of no more , and the ordinary appointed to hear him thereupon , but if they sufficed not , he behoved with the next to produce all , or declare he would make use of no further , else certification to be granted . december . . earl of lauderdale and wachop contra major bigger . certification was refused against a defender , producing an express infeftment of the lands in question , and the pursuer alleadging that they were part and pertinent of the lands exprest in his title , he was ordained first to instruct them part and pertinent , before the defender was obliged to take a term to produce , ianuary . . hay clerk contra town of peebles . certification extracted was found not to terminate the process of improbation , but that in the same process , the pursuer obtained witnesses examined as to the forgery , in so far as it depended not on the inspection of the subscriptions , and that upon production of copies , the principals having once been judicially produced before , by the defender compearing , who now wilfully keepeth them up . november . . lady towie contra captain barclay . certification against a decreet of valuation , was found to have no effect against a liferenter , publickly infeft , not called , though she had no right to the t●ind , but only to the benefite of the valuation , to liberate the stock of any further burden , iuly . . major bigger contra cunninghame of dankeith . certification was found null by reply , being in absence , and where the conclusion of the summons , as it is related in the certification , was not in the terms of an improbation , and at the kings advocats instance , there being likewise a discharge of a terms feu-duty granted by the party having right to the certification , which term and discharge were posterior to the certification , and did import a passing from it , and did homologai● the vassals right , iune . . steil contra hay of ra●ray . certification contra non producta , was not sustained at the instance of an appryzer , against all writs granted by him and his authors named , and their predecessors , to whom they may succeed ●ure sanguinis , as to the rights granted by these predecessors , unless it be instructed that the said authors were infeft as heirs to their saids predecessors ; and that though defenders be obliged passive , to produce all rights made to them and their predecessors , to whom they may succeed jure sanguinis , and so to produce before they be entered ; yet active they cannot insist for certification of rights made by their predecessors , as appearand heirs to them , but as being actually heirs and infeft , and that an appryzer was in no better case as to this , than if his authors had been pursuing , and so he behoved to instruct that they were infeft as heirs to their predecessors , iuly . . dumbar of baldoon contra maxwel . certification was not stopped , because there was none called to represent the defenders authors , upon whom they did condescend , unless they first produce their rights from these authors , thereby to instruct that they are authors , and unless that these authors be obliged to them in warrandice , the warrandice being the only ground of calling the authors , that they might defend their rights to shun the warrandice ibidem . a charge to enter heir was not found necessary to a poynding of the ground against the appearand heir of the granter of the annualrent , ianuary . . oliphant contra hamiltoun . chirographvm apud debitorem repertum , was found not only to extend to a bond found by the debitor , but to an assignation made by the cedent , found by him , and witnesse were not admitted to prove delivery , and instructing the cedent to have the assignation as agent , december . . thomson contra stevinson . circvmvention was not sustained upon a parties making bargain anent the boot of an ● horse , though it was offered to be proven by the defenders own oath , that according to his own estimation , the pursuer was lesed above the half , and that he was minor , in respect of his bond , bearing upon his oath and conscience , never to come in the contrary , given at that same time in his minority , and ratified after his majority , iune . . fairie contra inglis . circumvention was found instructed upon several pregnant evidences of fraud , and that not only against the circumveener , who obtained a bond blank in the creditors name , but against a third party , whose name was filled up in the blank , he having acknowledged by his oath of calumny , that there were not equivalent sums due to him by the circumveener , the time that he delivered to him the blank bond and filled up his name ; but that he became debitor to him thereafter in equivalent sums , whereof he could give no evidence even by his own compt book , though he was an exact merchant , and lived in the same place with the granter of the blank-bond , who is commonly known to be a simple person , and the obtainer thereof a subdolus person , without asking the granter of the bond , if he had any thing to object , whereof he should not accept of it , february . . scot contra che●sly and thomson . circumvention was sustained to reduce or aba●e a bond made up of the rate of the exchange of money , not agreed upon before the money was advanced by the merchant , but thereafter , the merchant being intrusted , and gave up the rate of exchange , much higher than he then● knew it was , but not upon the agreement before hand , although it had been far above the ordinary rate , ianuary . . dickson contra grahame . citation on a bill without the signet , was sustained against a person dwelling in edinburgh , though no member or dependent on the colledge of iustice , february . . earl of southe●k contra laird of broo●●hal . citation at the mercat cross of the shire , with certification to be holden as confest , granted against a defender absent , where the messengers executions bear , that he charged the defender at his dwelling house , and that he knew that he was within , but was forcibly holden out by his wife , iuly . lindsay and swintoun her spouse contra inglis . a clavse in a bond whereby a sum was payable to the man and wife , the longest liver of them two and their heirs , which failing , the mans heirs , was found to constitute the wife a lif●erenter only , and that she could not uplift the sum , because the heir was not concurring , and was infeft , and behoved to concur , december . . . kinross contra laird of hunthil . a clause in a tack , that if two years duty run together unpayed , the tack should expire , and renuncing the same in that case , with a bond bearing much duty resting , and if it were not payed by such a day , that the master of the ground might enter in possession of the land and cropt br●vi ma●● , was found to exclude ejection and spuilzie by so entering without declarator . december . . dewar contra countes of murray . a clause in a missive whereby the writer says ( i have sent you such a sum , and you shall have as much as long as you live , if you carry your self as you do now ) being questioned as a postscript unsubscribed , written with the parties own hand , at his subscription , was not found null on that ground , but it being alleadged to import but a resolution , and not a promise , and that the parties behaviour should only depend on the writers opinion , without necessitating him to prove it aliunde ; the lords assoilzied , iuly . . wauchop contra laird of niddrie . a clause obliging a party and his heir-male , and all others succeeding to him , on this narrative , that his heir male had the benefite of his estate , and the heirs female excluded , were found to burden the heir-male primo loco , and therefore behoved to be discussed first , or the executors could be lyable , iuly . . anderson contra wauchop . a clause destinating a sum to be imployed for the pursuer and his heirs on infeftment , was found heretable quo ad creditorem , and to exclude the wife and bairns , but moveable quo ad d●bitorem , and payable out of his moveables , iuly . . nasmith contra iaffray . a clause that an heir-male should pay a sum to an heir female out of ●enements , was found personally to oblige him to pay , but only quo ad valorem , of the tenements , and therefore time was granted to dispose thereupon for that purpose , december . . c●●●k contra clerk of pit●ncre●●f . a clause bearing such a quantity to be the just value of certain aikers , was found not to be drawn in consequence to necessitate the same party to accept the like quantity of other aikers lying run-rig therewith , december . . lord balmerino contra town of edinburgh . the clause of command , hunding out , and ratihabition in a spuilzie , was found not to be inferred by giving the messenger the precept of poinding simply , but by sending him and other● servants to a particular place extra territorium , which made the poynding spuilzie , ianuary . . mason contra hunter . a clause in a bond providing a sum to a man and his wife , the longest liver of them two in conjun●●see , and the bairns procreate betwixt them , which failzying , to two bairns of his by a former marriage , contaning also a precept for infefting the spouses , and the bairns of the marriage , which failzying , the two bairns , &c. was found to constitute the husband feear , the whole bairns of that marriage heirs of provision , jointly male or female , the two bairns of the former marriage heirs substitute , and that they behoved to be served heirs and infeft , there being an infeftment before , and that the seasine in quantum , to the two bairns nominatim , though bairns of this marriage should ●ail , was not valide , ianuary . . beg contra nicolson . a clause in a disposition of lands , bearing that it shall not be leisum to the purchaser to alienate the lands during such a mans life , and if he did in the contrary , to pay . pounds for damnage and interest , ex pacto convento , was found not to be as a liquidate penalty , for the expences of the failzi● to be pe●formed by and a●●our the principal obligement , but to be a liquidation of the principal obligement it self , and to resolve into an alternative obligation , february . . laird of philorth contra lord frazier . a clause in a bond bearing to pay the sum to the lender or his brother , was found not to give ground to use compensation against that brother , to exclude the lender himself , february . . robertson contra buchannan . a clause in a bond whereby the sum was payable to the man and wife in conjunctsee , and to the bairns of the marriage , whereupon infeftment followed to the man and wife , was found not payable to the wife till all the bairns equally male or female were served as heirs of provision in the annualren● , and infeft and renunced , february . . hay contra morison . a clause bearing to accept such a sum in case there were bairns of the marriage , was found to take place if there was a bairn surviving the mother never so shortly , february . . forsyth contra patoun . a clause in a bond bearing a sum payable to man and wife and their heirs , but not mentioning , which failzying , &c. was found to give the wife the liferent of the sum , but not both the liferent and half of the stock , though it bear no annualren● , and she was the longest liver , iune . . scrymzour contra murrays . a clause in a tack wherein the tacks-man was to retain his annualrent , or to pay the bolls at . shillings less nor the feirs at his option , was sustained not as usury , or contrary the act , debitor and creditor , november . . scot contra laird of barefoord . a clause in a contract of marriage , providing a wife to the annualrent of all goods and gear , moveable and immoveable , was found to exclude her from her third of moveables , and that she could not both have the liferent of the whole and a part of the stock , december . . young contra buchannan . a clause in a contract of marriage , providing a ioynture to a wi●e , with condition that she should restrict her self to so much less in favours of the bairns , and that the superplus should pertain to the bairns for their aliment ; this restriction was found not to be from the father , but from gratuity of the mother , the whole ioynture being no more than proportionable to the condition of the parties , and so not to be in defraud of the fathers creditors , november . ●● . wat contra russel . a clause obliging a father and his heirs of the first marriage , which failzying his other heirs to pay to the bairns of a second marriage , at such an age , such s●ms , was found to give no right to the assigney of them who attained not to that age , so soon as they would have been of that age , if they had lived , but that it was dies ●ncertus qui pro conditions habet●r , and accresced to the rest , and the h●●● of the first marriage failzying , never being entered heir , the heir of the second marriage had no share as heir of that marriage , but was excluded as debitor in the clause , february . . edgar contra edgar . in clauses conceived passive , the contracters are understood obliged , though they do not nominatim oblige themselves february . . mowat contra dumbar of hemprigs . a clause in a bond obliging many parties conjunctly and severally , without a clause of relief , was found to import mutual relief , ex natura rei , iune . . monteith contra anderson . a clause in a contract of marriage , obliging the husband and his cautioner , that so soon as he should receive the tocher from the wifes father , the same with so much more should be imployed for the wi●es liferent use , was found valide against the cautioner , . years after the date of the contract , without necessity to instruct that the tocher was payed , seing it was the husband and cautioners ●ault that it was not demanded , and now it cannot , because prescription was run , iuly . . mackie contra steuart . a clause in a bond obliging a cautioner as sure●y and full debitor , was found to make the cautioner lyable for the whole sum , and not for the half only , though it bear not conjunctly and severally , iuly . . dumbar contra earl of dundi● . a clause in a bond obliging to pay the price of wine according to the conditions agreed on , was found to burden the debitor to prove the conditions , or to pay the common rate of wine , but it was found probable by witnesses , iuly . . dowglas contra cowan and russel . a clause providing a tocher to the husband and wife , the longest liver of them two in conjunctsee and liferent , and to their bairns in fee , was found not to constitute the man and wife naked liferenters , but to have power to alter the substitution , seing there were no bairns existent at that t●me , d●●●mber . . pearson contra mar●●e and his son. a clause in a letter whereby three parties obliged them to pay such bills as the bea●er would draw for cows that he should buy for their use , he having drawn a bill upon them or any of them , each of them was found lyable accordingly in solidum , december . . mcl●●d contra young and giffan . a clause in a bond bearing a sum payable to two brethren , or failing the one , to the other , being a mutual substitution , was found not jure accrescendi to belong to the surviver , but 〈◊〉 heir substitute to the deceassing , without children , yet so as not to be lyable as heir in solidum , but quo ad valorem , iuly . . fleming contra fleming . a clause in a writ bearing a narrative as a testament , and leaving such a 〈◊〉 heir and donator to such tenenements , and assigning him to the evidents , with power to him after return to recal , was found effectual though not formal to inforce his heir to perfect the same , ianuary . . henrison contra henrison . the same was renewed upon full debate , november . . and the being of the writs in the granters hands after his retu●n , was found a sufficient evidence of recalling it , but its coming back in the hands of the other party , was found not sufficient to revive it , but they were ordained to instruct how they came by it , whether as delivered back again by the granter , or found amongst his papers , november . . inter cosdem . a clause obliging a party to pay such a sum , as being the annualrent of such a sum , without any obligation for paying the principal exprest , was found not to imply an obligement to pay the principal , as acknowledged due , but was found to constitute the annualrent perpetual , and not for the womans life , though it exprest not heirs and assign●ys , february . . power contra dykes . a clause in a bond bearing a sum to be lent by a father for himself , and as administrator for his son , a●d payable to the father , and after his decease to the son , but bearing that it was the sons own money , not expressing how or from whom it came , was ●ound to constitute the son feear , and the father naked liferenter , february . . campbel contra constantine . a clause disponing lands , was found to carry the miln , if the lands were a barony , or if the miln was not exprest in the authours own right , otherways that it could not pass as part and per●inent , february . . countess of hume contra tenents of oldcambus and mr. rodger hog . a clause in a contract of marriage , whereby the husband is obliged to take the conquest to the future spouse in conjunct●ee , and the heirs betwixt them ▪ which failing , the heirs of the mans body , which failing , the wifes heirs whatsoever , was found not to constitute the wife feear , upon the ●ailing of heirs of the mans body , but the husband , february . . cranstoun contra wilkison . a clause in the dispositive part of a charter cum privilegio piscaudi in aqua , &c. was found not to be a sufficient right of salmond-fishing , unless salmond-fishing had been thereby posses● forty years without interruption , and so it is only a title for prescription , february . . earl of southesk contra laird of earlshall . a clause in a bond bearing sums to be payed to a man and his wife , and their heirs , bea●ing annualrent , though no infeftment followed , was found to give the wifes heirs no share , seing the money appeared not to have been hers , and was presumed to be the mans , and he surviving did revock the substitution , as a donation betwixt man and wife , iune . . iohnstoun contra cuninghame . a clause in an assignation by a father to his daughter , bearing a power to alter during his life , was found not to take effect by an assignation to a third party , who instantly granted a back-bond bearing his name was but in trust to do diligence , and obliging himself to denude in favours of the father his hei●s and assigneys , but was not found to operate for the fathers heir , but for the daughter his assigney , iuly . . scot contra scot. a clause in a tack setting . a●kers of lands presently possest by the tacks-man , was found not to limite him to ▪ aikers of any present measure , seing he had possessed still since the tack these . years , albeit it was alleadged that besides . aikers , there were six aikers severally ●enned and possest by different persons before that tack , iuly . . dae● contra kyle . a clause in a bond bearing a sum borrowed from husband and wi●● , and payable to the longest liver of them two in conjunctfee , and to the heirs betwixt them , or their assigneys , which failing to the heirs or assigneys of the last liver , was found to constitute the husband fe●ar and the wife liferenter , albeit she was last liver , and the heirs by the last clause , were but heirs of provision to the husband , in case the heirs of the marriage failed , ianuary . . iustice contra barclay his mother . a clause in a bond whereby a woman obliged her self to enter heir of line to her father , and to resign certain lands in favours of her self and the heirs of her body , which failing to the heirs of her father , and obliged her self to do nothing contrary to that succession● whereupon inhibition was used before her marriage , was found effectual against her and her husband whom she married thereafter , and disponed the lands to him and his heirs , as being a voluntar deed , without an equivalent cause onerous , albeit by the said bond of ●ailzie , the heir of provision beh●ved to be the heir to the woman her self , without discussing whether deeds done for causes onerous , without collusion , would be effectual against the said heir of provision , ianuary . . binn●● contra binnie . a clause in a second contract of marriage , that the heirs of the marriage should have right to tacks acquired during the marriage , was found to extend to a new tack obtained of lands , then possessed by the father , unless he had a tack thereof before in writ , which if not expyred , the new ▪ tack would not be esteemed conquest , if the new tack were given for the old , iuly . . frazer contra frazer . a clause in a testament , leaving a legacy to a second son in satisfaction of all he could befal by his fathers deceass , was found not to be in satisfaction of a debt due by his father to that son , as having uplifted a legacy left to him by his mothers father , both not being above a competent provision by a father in his condition to his son , december . . win●●●am contra eleis . a clause in a contract of of marriage , providing all the husbands goods and gear acquired during the marriage , to the wife for her liferent use , was found to be with the burden of the husbands debt , and only to be meaned of free gear , and not to exclude the husbands creditors at any time contracting , december . . smith contra muire a clavse of conqvest in a wifes contract of marriage , who was competently otherwayes provided , was ●ound to carry the lands conquest , with the burden of a sum , which the husband declared under his hand to be a part of the price , though the same would not hold in the burdening of heirs of conquest , december . . lady kilbocho contra laird of kilbocho . this sum was due to the seller of the lands and exprest . a clause of conquest providing the goods to be conquest and acquired during the marriage to the children of a second marriage , was found to be understood of the goods as they were at the defuncts death , and that he might dispone of , or burden them during his life at his pleasure ; and therefore a bond granted to the children of the first marriage , was found valide against the children of the second marriage , to affect the goods acquired during that marriage , february . . cowan contra young and reid . a clavse irritant in a reversion being committed , was found not to be null but to be restricted to the damnage of the granter , so that if the wodsetter would give as much , or had offered the same before the reverser had closed bargain with another , the clause irritant would be sustained , the wodsetter paying in the superplus , february . . earl of tillibardin contra murray of a●chter●yre . a clause irritant in a back bond after a reversion discharged , bearing that in payment of such sums , the acquirer should denude himself , it being done within such a time , and if not then done , to be null ipso facto , without declarator , was found not to exclude redemption after that term before declarator , which was found necessary in this case , february ● . . inter ●osdem . a clause irritant on not payment of the back-tack-duty , was found not to be comprehended in that clause of the act debitor and creditor , november . . sawer contra rutherfoord . a clause irritant on not payment of the back-tack-duty , was found valide , unless purged by payment at the bar , ibidem . a clavse of svbstitvtion in an universal legacy , providing the fathers free goods to two daughters , and falling of either of them to the other , the one dying , the portion was found to accresce to the other , without necessity of her confirming her deceassed sisters testament , ●ure accrescendi , december . . helen h●● contra maxwell . a clause of substitution upon the margent of a bond contrary the substitution in the body , to wit by the gran●er of the bond himself , who exprest that he had filled up the date and witnesses , and mentioned not that he had filled up the marginal note , and the witnesses insert deponing that they remembered not that they did see that marginal note , though holograph , was not found to be of the date of the bond , nor of any date before the granter thereof was on death-bed , therefore on all these grounds joyntly it was found null as to the heir , here the parties had accorded , february ● . . laird of dury contra ▪ gibson . a clause of substitution in an assignation to a bond of . merks , whereof . merks to the cedents eldest son , and . merks to wiliam and ianet his youngest children , and in case of the eldests deceass , providing the other two to his part , ianet dying before robert , and he also dying after without issue , ianets heir was found to succeed as heir of provision to robert , in her half of his part , though she dyed before robert , and the clause did not substitute her and her heirs , but only mentioned her self , ianuary . . innes contra a clause in a bond to be comptable for the profite of an office , and stating such a party iudge in case of difference , was found to be an effectual submission , not only as to the subscriber , but as to the accepter , and not to terminate with a year ▪ and to this effect , if that person determined not being required , or determined wrong , the lords would hear and rectifie the accompts themselves , february . . b●s●wel contra lindsay of wormistoun . a clavse de non alinando , otherways the contraveeners right should be void , and the next heir have place , being insert in the original charter and seasine , ad longum : and also i● the heirs re●our and seasine , was sound to annul the contravceners infe●tment , in favours of the next heir , and in consequence to annul the rights of appryzings from that heir , february . . viscount of s●●rmount contra the credi●ors of a●nandal● . a clause in a disposition of tailzie de non alienando , in common form , with this addition , that it should be leisom to the feear and heirs of tailzie , to sell , di●pone , or wodset such of the lands ●ominatim , to affect and burden the same for payment and satisfaction of the disponers debt● this addition was not found to restrict the feear , or heirs of tailzie , to dispone only so much of these lands as w●re sufficient to pay the defuncts debts , the clause not running in these terms , but that they might dispone the whole ; so that the disponers debt were paid therewith , and needed not alleadge that the debt was as great as the price they got , lanuary . . lady kilbirnie contra the heirs of tailzie of kilbirnie and schaw of gr●●nock renewed , f●bruary . . inter cosdem . a clause in a bond obliging many parties con●unctly and severally , without a clause of relief , was found to import mutual relief ex natura re● , iune . . mon●●th contra anderson . coal was found to be carried by the common clause of pertinents , against a party expresly in●e●t in the coal-heughs of the lands , ianuary . . lord burly contra sym. cognition of marches betwixt vassals by witnesses adduced before the sheriff , or by arbiters , was found valide , albeit the superiour was not called , nor consenting , but so that the superiour should not be prejudged in case the fee fell in his hand by ward or nonentry , february . . lord torphichen contra a colledge was found not excluded from setting long tacks , as being comprehended under beneficed persons , but their obligement to renew a tack perpetually , was found not obligatory , unless there were an equivalent cause onerous , for which the obligement was granted , iuly . . colledge of ab●rdene contra the town of aberdene . command or warrand of a servant , taking off furniture in his masters name , was presumed to have been known to the merchant , and not to oblige the servant , though he gave ticket acknowledging the receipt in his masters name , but not obliging himself to pay , being pursued thereon after . years , and after his masters death , unless it were proven by his oath that he had no warrand , or applyed not the goods for his masters use , november . . howison contra cockburn . command or direction was found probable by witnesses , being a part of a bargain for grassing an horse , ianuary . . scot contra gib . command or warrand was in●e●●ed by the presence of him who had commission to do an act , and did not hinder or contradict the doing thereof by others , who therefore were presumed to have warrand from him , february . . lord ren●oun iustice clerk contra laird of lambertoun . the commissars of edinbvrgh were not found to have right to confirm the testament of a defunct dying out of the countrey on a voyage , not being away animo remanendi , this was stopped till further hearing on the petition of the commissars of edinburgh , november . . dowglas contra iohnstoun . a commissar was found obliged by the injunctions to reside at the place of the commissariot , albeit he had power of deputes , that he might direct them , being answerable for them , and that under the pain of deprivation , february . . arch●bishop of glasgow contra the commissar of gl●sgow . a commissar was foun● deposable if he be not found sufficient for discharge of the office in his own person , albeit he have the power of deputes , ibidem inter ●osdem . a commissar having power to constitute deputes by the kings gift , and the former arch-bishops , was found ●●ereby not to have power to make use of any deputes , but such as were authorized by the bishop , conform to the injunctions ; but whether deputes might be authorized pro re na●a , only in the cases of sickness , or dec●arator mentioned in the injunctions , or in other cases also , so that there might be a constant deputation for things in ordinary course in process , and to advise with the principal commissa● in matte●s of importance or not : the lords recommended to the bishops in common , who made the injunctions , to clear the parties thereanent ▪ but found that the commissars none-residence , or acting by his own deputes , albeit he was required in the co●trary did not annul his office , i● respect of his gift , with power of deputation , and of the common custom of bishops to grant deputations that way ; but as to the future , seing the king had approven their instructions , the lords ordained them to be insert in the books of sederunt , and to be observed in all time coming , february . . inter eosdem . the commissars of edinburgh were found to have right to confirm the testaments of scots-men dying abroad ani●● r●manendi , as to their moveables in scotland , and that they might be confirmed , and pay quot here , iuly . . brown and du●● contra biss●t . a commissars decreet was not found null , as being of matters exceeding the injunctions , the defender not compearing , and the probation being lost by the suspenders silence ten years , yet the lords allowed the defender a contrary probation , iune . . black contra 〈◊〉 . the commissars of edinburgh upon a pursuit for slander and defa●ation , having dece●ned the defender to make an acknowledgement before the congregation , and to pay . pounds scots to the party , and another to the poor , the lords sustained the decreet , february . . deans contra bothwel . a commission or factory was found revockable , though it had an express term of endurance , the factor being satisfied of what he profitably debursed in contemplation of the factory , iune . . chalmers con●●● baffilli● . a commission in a minute impowering the buyer of land to retain the price till he were secured , and to infeft the seller and himself , and do all things necessary for his secu●●●y to be satisfied by a part of the price , was found to oblige him to do no diligence , december . . frazer contra keith . commodatvm , or the lending of canons for defence of a town in these terms ( to restore them without hurt , skaith , or damnage , and in case of damnage to pay ● . merks for them as the price agreed on ) was found not to oblige the borrower to pay the price , where the cannon were taken by the enemy , all diligence being done to preserve them , and that the peril was the lenders , and that this was not commodatum estimatum , giving the borrower his option to restore or pay the price , but only a liquidation in case of damnage , november . ● . duncan contra town of ar●roth . comm●datum , or one lending a watch to one who put forth his hand for it without words , was found sufficient to oblige him to restore it , though just then lending it to another , not to liberate him , though in the presence and silence of the first lender , seing it was so sudden an act , as his silence could not be thought nor esteemed a consent , iuly . . lord cowper contra lord pitsligo . common pastvrage was found relevant by a clause cum comm●ni pastura in general , and . years possession , to come in with another having a clause of common pasturage in the muire in question per expressum , november . . nicolson contra laird of balbirnie . common pasturage in a commonty of a barony of the kings property , was found constitute by a fe● cum pertinent : & ●um pas●●●s & pasturis , though not special in this muire , being then a common●y of the barony , february . . laird of haming contra town of selkirk . commonty was found inferred upon mutual declarators of property of two parts of a piece of ground upon their ma●ch , wherein either party proved . years possession , and mutual interruptions , and though the one proved more pregnantly then the other , yet it was not sufficient to exclude him , neither party having a bounding charter , iune . . giabs●n contra oswald . compensation was found not competent to the debitor of a defunct , taking assignation from the creditor of the defunct , after the defuncts death to exclude an executor creditor , albeit the assignation was anterior to the confirmation , at least any diligence of the executor creditor , february . . crawfoord contra the earl of murray . february . . children of mouswal contra lowrie of maxw●lstoun . compensation against an assignay was sustained on debts due by the cedent to the debitor himself , or whereunto he had assignation intimat before the assignays intimation , but not for debts whereunto he had taken assignation , but had made no intimation before this other assignay did intrtimat , ianuary . . wallace contra edgar . compensation of an illiquid number of coals , was found not receivable to take away a liquid decreet , here they bear a price far above the ordinary rate , which behoved to be modified , ianuary . . laird of tulliallan and condie contra crawfoord . compensation was sustained upon rents liquidat against the principal debitor , before the assignation , which was found sufficient against the cautioner , whose right was accessory , albeit not called in the decreet of liquidation , iune . . irving contra strachan . compensation against one of four executors was sustained upon a debt of the defuncts , not only as to that executors fourth part , but in solidum , being equivalent to a discharge , iun● . . stevinson contra hermasheills . compensation was found not competent against a bond delivered , being blank in the creditors name , and by the receiver , for an equivalent cause , delivered to a third party , who was found not to be compensed by any debt of him who first received the bond , though prior to the filling up of the name , february . . hendrison contra birnie . compensation was sustained against the bygones of an ann●alrent by infeftment against a singular successor , upon his authors liquid debt , ianuary . . oliphant contra hamiltoun . compensation was sustained against a donator of escheat upon a debt due by the rebel before the rebellion , ianuary ● . . drummond contra stirling of airdoch . compensation of a bond by rents , was sustained to take effect , not only from the date of the decreet , liquidating the rents , but from the time the rents were thereby proven to ●e due , february . . cleiland contra iohnstoun . competent and omitted , was ●ound relevant as to decreets of suspension , since the act of sederunt . and that a reason then past from in a suspension pro loco & tempore , could not in eodem statu be repeated against that decreet , or appryzing thereon , especially seing the appryzing was not expyred , and might be redeemed , iuly . . laird of tulliall●●● and co●die contra crawf●ord . competent and omitted , was not sustained against strangers in decreets against them before the admiral , iuly . . i●rgan contra captain logan . a comp● sitted , and bearing at the foot such a sum resting , not mentioning the instructions of the accompt , or delivery thereof , was found not to make the debitor lyable to produce the instructions , or compt again , unless it were proven by writ , or his oath , that the instructions were in his hand , albeit a considerable article of the accompt was general , bearing paid for the pursuer to his creditors . pounds , and though the foot of the accompt was ●xhausted by debts paid upon precepts from the creditor , after that accompt , december . . lord abercrombic contra lord newwaak . a compt book of a factor in campheir , being proven ●o be unvitiate , or written by the factor , or a known book-keeper , and sequestrat before any question , was found to prove against the factors brother and assignay , even quo ad datam , being instructed by the oaths of the debitors , who paid conform to the articles in the book , iuly . . skeen contra lumbsdean . renewed ianuary . . inter eosdem . a compt book written by the hand of a person of discretion , was found sufficient to prove payment of his rent against his executor creditor , but the tennent being on life was ordained to depone on the truth of the payment , november . . wardlaw contra gray . after conclvsion of the cause , a reply instantly verified , and not putting the defender to prove , was admitted , but a duply do●ose omitted before l●tiscontestation , and not being instantly verified , the same was repelled , albeit there was a reservation contra producenda ; this alleadgeance was upon part and pertinent of the lands contained in the infeftment produced , december . . lyon of mur●a●k contra farquhar . after conclusion of the cause in a reduction , the same was found not to be advised till some representing some of the authors , who died pendente li●e , were called , iuly . . le●th contra laird of lessemore , troup and others . confession to the church , and standing a year was found not to prove adultery , to 〈◊〉 infer the parties escheat , ianuary . . baird contra baird . here the defender had taken remission . confirmation of exchequer to a particular effect in so far as concerned the obtainers base infeftment , granted by him who was infeft , but not confirmed , was found valide only ad istum effectum , and not to accresce to any other , ianuary . . tennents of kilhattan contra laird of kelhattan , major campbel and baillie hamiltoun . confirmation and paying of the quote was found necessary , though there was a disposition omnium bonorum , without a cause onerous , or any delivery , iune . . procurator fiscal of of edinburgh contra fairholm . confirmation and quote was not excluded by a disposition omnium bonorum , with a reservation to the disponer , that he might dispose thereupon otherwise during his life , iuly . . commissar of saint andrews contra hay of bousie . confirmation of a scots-mans testament , who lived animo remanendi in polland , was found necessary in scotland , by the commissars of edinburgh , iuly . . brown contra duff and bisset . confirmation of a testament wherein the division of the whole inventar was tripartite , and yet much of it was sums bearing annualrent , wherefrom the relict is excluded , was found to need no reduction , as to that division , but that notwithstanding thereof , the relict was excluded by reply , ianuary . . doctor bal●oure and his spouse contra wood. confirmation vide homologation . confirmation of an annualrent granted by a vassal to be holden of the superiour , was found not to take away any casuality belonging to the superiour , but that the same might be made use of against that annualrent , as communicating only a part of the vassals fee , but no interest of the superiority , ianuary . . 〈◊〉 of kirkaldy contra duncan . confvsion was found not sufficient to take away an adjudication against an appearand heir on his own bond assigned to himself , and so simulate , which was found a ground to reduce by , but not to annul the bond , or adjudication , or make the defender lyable as heir , ianuary . . earl of nithisdail contra glendoning . conivnctfeears vide clause in a contract of marriage , iuly . . gairns contra sandilands . conqvest vide clavse . consent of parties to a decreet judicially , was found not sufficiently instructed by the decreet , in respect there was a minute of process , by which it appe●red that the said consent was not minuted de recenti , but half a year thereafter , upon remembrance of the iudges , iuly . . laird of buchannan contra osburn . consent of a minister to quite so much of his stipend to an helper , was found not proven by an act of presbytery without a warrand subscribed by him , iuly . . ker contra minister and ●arochioners of carrin . consent to a march and building a park-dyke thereon was found not sufficiently proven by the building of the dyke , and silence of the other heretors , ianuary . . nicol contra hope . consent was inferred by subscribing as witness to a writ on death-bed , to take away the reduction on death-bed , which the witnesses could not but know , seing the sick man subscribe without importing his consenting to the contents , as in other cases , iune . . steuart of ashcog contra steuart of amholme . the like , iuly . . halyburtoun contra halyburtoun . consent of a dumb man , was not inferred by his subscription of a discharge given to his sister , whereunto he put the initial letters of his name , seing nothing was adduced to instruct that he knew what he did , iuly . . hamiltoun contra ethdale . consent of a wodsetter in a disposition with the reverser , was found not to carry his right , seing he assigned no part of the sums ▪ and that it only imported the restricting of his wodset to the remanent land , and renuncing the rest , iuly . . boyd contra kintor . consent was not inferred by knowledge and silence , in that a future husband knew his future spouse had disponed a part of her ioynture , and yet went on in the marriage , ianuary . . heretors of iohns-miln contra the fewers . consent to a diiposition of a wodset right , which dis-position disponed the lands , but neither exprest under reversion , or irredeemable , which consent was found not to take away the reversion from the consenter , who then had no present right , the reversion being conceived to another person , and the heirs of his body , which failing to that consenter , and that person being then alive , so that the consenter falling thereafter to be heir of tailzie in the reversion , was not excluded by his consent from redemption , february . . earl of errol contra hay of crimmonmogate . here the consenter was not obliged for warrandice . consent without warrandice to a disposition , imports only such right as th● consenter then had , but for no other supervenient , ianuary . . forbes contra inne● . consent of a superiour to a wodse● and eke , was found to carry the liferent escheat of the vassal then in the superiours hand , and to exclude a gift by the superiour of the same date with his consent , seing the gift required declarator to make it effectual , and the consent 〈◊〉 not , iune . . scot contra langtoun . consent of parties to a decreet of the lords , bearing the particular terms of an agreement , and a decreet thereupon extracted , the same was sustained in respect of the offer of a disposition by the accepter , who now quarrelled , the decreet as having a warrand for his consent , under his hand the offer being simple , provided the same were instructed by the oathes of the witnesses insert in the instrument of offer , february . . lawrie contra gibson . consigned svms cannot be aff●cted by arrestment or escheat for the consigners debt , but belong only to the wodsetter , iune . . telz●●er contra maxtoun and cunninghame . consigned sums in the hands of the clerk to the bills , for obtaining suspension , was found not to be upon the peril of the consigner , unless he were in the fault ; and therefore the consigner having first o●●ered by instrument the principal sum and annualrent , and so much of the penalty as the charger would depone upon oath that he truely debursed , and the instrument being instructed by the oaths of the witnesses insert , the consigner was declared free ▪ though the then clerk of the bills was become insolvent , iuly . . scot contra somervel . consigned sums being lifted by the consigner , he was found lyable to produce the same with annualrent , since he lifted the same , though he offered to depone he had keeped them by him and had made no profi●e , and that the consignation was not by his fault ; ianuary . ● . mcpherson contra wedderburn of kingeme . consignation being truely and formally made , and the wodsetter truely in the fault , that received not his money , he was only found to have right to his annualrent after the consignation , and not to the rents of the lands , though he continued five years in possession before declarator , and that the sum was taken up by the redeemer , upon whose peril the consignation was , being now produced by him at the bar , with annualrent since the consignation , february . . ierd●●n of applegirth contra iohnstoun of lockerbie . consigned sums for redemption being taken up , and annualrent craved therefore since the consignation , the taking up thereof was found probable by the consignator and clerks oaths , the consigner being dead , february . . inter eosdem . continvation was not found necessary in a declarator of redemption , though not instantly verified , february . . children of wolm●t contra ker. vide improbation , laird of auchinbreck contra continuation was found necessary in summonds , for making arrested goods forthcoming , albeit accessory to a decreet , seing they were not priviledged by deliverance , as they would have been upon that ground , if it had been demanded in the bill , november . . bruce contra earl of mortoun . continuation was not found necessary to a declarator of bastardy , but that in favorem fisci , upon a single summonds it might be proven , that the defunct was repute bastard , as in declarators of nonentry , the death of the vassal may be proven without continuation , iune . . livingstoun contra barns . a contract was found effectuall to a third party not contracting , in whose favours an article to pay the debt due to him , was found sufficient , and not to be discharged by the contracter , seing the bargain followed , iuly . . ogilbie contra grant and ker. a contract of marriage , by which the wife declared her self to have a sum , and contracted the sum to the husband , was found to give her no interest to the implement of the husbands part , till she instructed her part to be fulfilled , which was not presumed to have been performed , though after a long time without some adminicles , iuly . . brotherstones contra ogle and orrock . a contract of marriage bea●ing a general clause whereby the husband renunceth his jus mariti , in the means of the wife , and all other right he could have thereto by the subsequent marriage , was found not to take away a right granted before the contract , whereby in contemplation of the marriage , the wife disponed her liferent in trust , and took a back-bond , that the benefite of it should be for intertaining the wife and her future husbands family joyntly , both being esteemed as parts of the same treaty of marriage , and the general clause in the contract of marriage , not to be derogatory thereto , february . . ratho and colingtoun contra tennents of inn●rtil● and lady collingtoun . a contract of marriage providing the moveables of either party to return after the marriage , in case there were no children , was found effectual to the wifes assignays , and that the same did not return to the husband by his jur marit● , or was not inconsistent therewith , iune . . greig● contra weims . a contract of marriage by minute , being craved to be declared void , as to the payment of the tocher , because the mutual obligements therein could not be fulfilled . the lords liberate the pursuer , he renuncing the obligements on the other side , iuly . . raith and wauchop of edmonstoun contra wolmet and major biggar . a contra●t of marriage whereby a father disponed his whole estate in fee to his son , and got the tocher , was ●ound not to annul a bond of provision , granted by the son to the father for his bairns provisio●s , after the contract and before the marriage , as contra pacta dotalia , but upon examination of the witnesses , it being found communed , that the tocher should suffice for the bairns provisions , and that by the new bond , there would little have ●emained to the married persons : the lords reduced the bond , ianuary . . patoun contra patoun . contract of marriage vid. clause . in contrary alleadgances of minority and majority , neither party was preferred to probation , but witnesses and adminicles were admitted hinc ●nde , that the lords might follow the strongest , and clearest probation , february . . farquhare of tonley contra gordoun . contravention was sustained upon several times herding , for a considerable space together , by the defenders herds at his command , on the pursuers ground uncontroverted , reserving to the lords whether to make every special pasturing , a several contravention , or one made up of all at the conclusion of the cause , iuly ● . . earl of airly contra mcintosh . a creditor personal , was found to have no interest to compeat to exclude another creditor , alleadging his debt payed , iuly . . shed contra gordoun and ●yle . a cropt of corn was ●ound not to be as a part of , or accessory to the ground , or as sata solo cedunt solo , so that after possession attained by removing , against a violent possessor warned , the cropt on the ground was found not thereby to belong to the heretor entering , even as to that part thereof , which was sown after the warning , but as to what was sown after the possessor was dispossed by the removing , and his goods off the ground , the corn was found to accresce to the heretor , by paying the expense of the seed and labourage , as eatenus locupletior factus , february . . gordoun contra mcculloch . in crvives no necessity was found for the stream to be continually free besides the saturdays slop , but that the same is commonly in desuetude , and particularly in the cruive in question , notwithstanding that it be speciall in the act of parliament , iuly . . heretors of don contra town of aberdene . a cvrators decreet obtained against him by a minor , for liberation of the curator from his office , upon consent of the minor , and his alleadged irregularity , was ●ound not to liberate that curator from his office , even for omissions after the decreet , iuly . . scot of ●road-meadows contra scot of thirlestoun : but with consideration of the irregular forcible acts , that he should not be lyable therefore , but liberat pro tanto vide minor. ibid. curators being chosen three in number , or any two of them , the mother being sine qua non , and she being dead , the pupil was found sufficiently authorized by the other two , he appearing judicially , and acknowledging the same , ianuary . . david and andrew fairfouls contra binn●● . curators , or a father as lawful administrator , authorizing minors , or children to their own behove , being ca●tioners for , or with them , was found null , december . . sir george mckenzie contra fairholme . cvstody of money was found to liberate the keeper , where his whole means were sent for safety to a garison , and there lost , and he being required to deliver the money in custody , declared that it was there , and the owner might have it for sending for it , without special probation as to the money in question , he giving his oath in supplement that it was there , and was lost , iuly . . fiddes contra iack , vid. novemb. . . whitehead contra stra●to●n . damnage of a tenement by the fall of a neighbour tenement , was found competent against an appryzer of a liserent of the fallen tenement , possessing thereby , february . . hay of knockc●ndie contra litlejohn . renewed , ianuary . . the ruinousness of the fallen house being proven , though no requisition to repair it . damnage done to victual embarqued for the use of merchants , by the fault and negligence of the skipper , was found not to oblige the skipper and owners to take the victual , and pay the price , but only to pay the damnage , seing the victual was not wholly corrupt , but remained in specie , february . . leslie contra guthrie . date of a bond , wanting as to day , moneth , and year , was found not to annul it , seing it bear in the body , annualrent from such a term , in such a year , last by-past , which supplyed the date as to the year , iune . . grant contra grant of kirkdail . date of a discharge in a merchants compt book , being ●nstructed by witnesses and adminicles , was found to prove against the merchants assigney , ianuary . . skeen contra lumsdean . date being wanting in a writ , was sustained to be astructed by a witness insert , that it was anterior to an assignation , whereupon it was admitted as a compensation against the assigney , iune . . thorntoun contra milne . date of a writ being wanting , was found not to annul it , the party referring the verity of the subscription to the subscribers oath , which was allowed , with power to qualifie if it was undelivered , or in minority , iuly . . contra duncan . date of a writ being false was found not to infer falsehood of the whole , or nullity thereof , where the witnesses insert proved the verity of the subscription , february . . laird of may contra ross. the date of a writ was not quarrelled by the lords as false , albeit it was not subscribed the day that it bear , in respect there was a writ of the same tenor truly subscribed that day , but being a missing , the granter a long time after , subscribed another of the same tenor and date , and the first being found , and both produced in process , the user abode by the first simply , and by the last as to the verity of the subscription , but not of the date , which was so insert for the reason foresaid . iuly . . gardner contra colvi● . death of a party was found instructed by . years absence out of the countrey , and repute dead , and a letter produced , w●itten by a comrad in the war , bearing that he was dead ▪ to sustain an adjudication upon a bond granted by the next heir , which was to his own behove . february . . lowrie contra drummond . death-bed was not sustained to reduce a disposition by a father to his son of a sum , as prejudicial to his heir , seing by contract with his eldest son , he reserved that power to burden the estate to any he pleased , though it bear not on death-bed , yet that was not excluded , nothing being there done but the designation of the person , iune . . seatoun of barns contra his brother . death-bed was found relevant to reduce a disposition and infeftment of lands to an heir female and of line , in prejudice of a brother and heir-male , who was provided to the lands by the disponer , with a clause ( with power to him to alter during his life ) which was found not to extend to death-bed , though he should have been proven in soundness of mind , as contrary to the presumptio juris & de jure , that persons on death-bed are weak , february . . hepburn of humbie contra hepburn● , this clause not being in the writ etiam in articulo mortis , or on death-bed . death-bed and a testament was found equivalent , albeit the testament was made in leige poustie , and so no provision therein , prejudgeth the heir , december . . lady colvil contra lord colvil . death-bed was found not relevant to hinder a husband to provide a wife with a ioynture , she having no contract of marriage , nor competent provision , nor any terce , he having only tenements in burgh , of which no terce is due ; but the lords modified the provision near to a terce , february . . rutherfoord and pollock contra iack. death-bed was found not competent by way of exception or duply , ianuary , . seatoun and the laird of touch contra dundas . death-bed was found relevant to reduce a liferent provision by a husband to a wife , being unprovided , and having no contract , except only in so far as it extended to her terce , due by law , ianuary . . schaw contra calderwood . death-bed was found relevant to reduce a bond granted by a father to his daughter , who had a former bond of another small sum , and that seing he went not out to kirk and mercat after subscribing of the bond , and no equivalent , or probation of his being in health , or doing all his affairs , or that it was a small portion to a daughter , were sustained , february . . dun contra duns . death-bed was sustained by exception against a bond wanting witnesses , and alleadged holograph , seing the bond was defective , and the alleadgeance of death-bed was instantly verified , and the presumption of law , that the holograph writ proved not its own date to be before the defuncts sicknesse , november . . calderwood contra schaw . death-bed being insisted in as a reason of reduction , and going to kirk and mercat being proponed in defense , and being supported , and that the disease continued notwithstanding of the defuncts going out being proponed , the lords ordained witnesses to be examined hinc inde , anent the defuncts condition and manner of going abroad , whereby it being proven , that the defunct went freely unsupported , a considerable difficult way , having only a staff in his hand : the disposition made by him was sustained , albeit it was proven that he was helped up stairs and down stairs , to and from his horse , being an old man , and that his bridle was led , and that he was not free of the disease of which he dyed , and though he came abroad , february . . pargillies contra pargillies . death-bed was found receivable by exception . to exclude a recognition , as not being a possessory , but a petitory iudgement , iuly . . barclay contra barclay . death-bed was found a sufficient ground to reduce a disposition , at the instance of the defuncts creditors , or the creditors of the appearand heir ; neither did an offer to declare the estate iyable to the defuncts own debts , exclude their interest , without security equivalent to the appryzing , november . . creditors of cowper and basmerino contra the lady cowper . death-bed was not found relevant to reduce a bond granted on death-bed by a party who had disponed his estate , reserving a power to himself to burden at any time during his life , though it did not bear etiam m articulo mortis , iune . . dowglas of lumsdean contra dowglas . death-bed was found proven , witnesses being adduced before answer on either part , concerning the defuncts condition the time of the disposition quarrelled , and thereafter till his death , it being by them instructed that he contracted a palsie affecting his brain before the disposition , whereby he remained sensless for a ti●e , but thereafter continued to have a palsie in his tongue , and vertigo in his head till his death ; but that he lost the remembrance of things , and names , and was not sound thereafter in his iudgement , thoug● he went frequently to his garden , and half a pair of 〈◊〉 from his house unsupported , never having gone to kirk or mercate after the disposition , or to any publick place , but the disposition bearing for the better payment of the disponers debt , was sustained , in so far as the acquirer paid of his debt , february . . lowrie of blackwood contra drummond . death-bed being insisted in to reduce a disposition , witnesses were appointed to be adduced for either party ex officio , for clearing the condition the defunct was in , as to health and sickness the time of the disposition , and thereafter til his death , and the manner of his going abroad , whereupon the relevancy and probation were advised together , and it was found that there was no necessity to libel the particular disease , or that it was morbus sonticus , but ●ound it sufficiently proven that the defunct had contracted a disease , before subscribing of the disposition , and that he nev●r went abroad thereafter , as the law requires for the evidences of convalescence , it was also found , that the going to kirk and mercat was a relevant defense , but that it was elided by the reply of supportation , and that the defunct from his entry to the town of cowper , to the mercate place , and from the mercate place till he went out of the town , did not walk freely unsupported , and that even supporting by the hand was found relevant , without consideration of the unevenness of the ground , and that the defunct was an old man , and accustomed sometimes to take the hand of these that were with him in rouged places , in respect that the attempt to go to kirk and mercat , was the next day after the disposition , and so was of design to validate the same , and yet the defunct was not able to forbear help for so short a way , and attempting to go to the kirk the next sabbath , was supported to it , and from it , and fel in a swoon in his return , and dyed shortly after , which though it was not necessary , if he had gone freely to mercat , yet was an evidence of the continuance of the disease ; neither were private evidences of putting on his cloathes , making of bargains , compts , and conveying of strangers to the gate , going to the garden unsupported , ●ound acts sufficient to prove health and convalescence , or equivalent to going to kirk and mercat unsupported , seing in these publick meetings , the party behoved not only to suffer the alteration of the free air , but that there was the testimony of many unsuspect witnesses , whereas a few picked out witnesses might be sufficient for these domestick acts , if these were sustained , iune . . creditors of balmerino contra lady cowper . death-bed was found relevantly libelled , that the defunct was inclosed on suspition of the plague , without proving infection , seing he died and came never abroad , february . . rutherfoord contra debitor non presumitur donare , was elided by a stronger contrary presumption , viz. that an assignation made to a creditor who was his nearest of kin , done mortis causa , and in it another provision of a sum to another person expresly , in satisfaction of another debt , which not being repeated in this , must be thought ●o ammo , not to be in satisfaction of the other prior debt , iune . . crockshank contra crookshank . vide donation , fleming contra his children , december . . debitor non presumit●r donare , was found not to make a posterior bond in favours of a brothers son , to be in satisfaction of a former bond to that brother , seing the posterior bond bear for love and favour , and no other cause , neither did it mention the prior bond , december . . dickson contra dickson . debit a fvndi cannot be effectual by voluntar dispositions of the lands affected thereby , but only by poinding of the ground ; and therefore an appryzing , and an infeftment thereon , was preferred to a posterior disposition for feu-duties , but prejudice to make use of the feu-duties , by poinding the ground , whereby they would be preferred to the appryzing , iuly . . margaret scrymzour contra earl of northesk . by this decision the accumulation of annualrents by the voluntar disposition was evacuate . declarator of the expyring of a reversion upon a clause irritant , was found null summarly without reduction , in respect the decreet bear not the production of the instrument of requisition whereupon the irritancy fell , although the instrument was now produced , and the party long in possession by vertue of the decreet , and albeit the requisition was expresly libelled upon , and that it seemed to be the clerks omission in not mentioning of it in the production , february . . pi●cairn contra tennents declarator of escheat was sustained without calling all parties having interest at the mercat cross , though it was a part of the style of the summons in desuetude , iune . . masson contra declarator of ward and noneentrie should only be pursued before the lords of session not before the exchequer , iune . . his majesties letter recorded in the books of sederunt . declarator of the nvllitie of bonds and rights to creditors ; by a feear in a tailzie , with a clause de non ali●nando , was sustained without the form of a reduction , or production of the particular rights , ianuary . . viscount of stormount contra creditors of annandale . in a declarator of property , the defender was not admitted to propone a nullity in the pursuers right , or that certification was granted against his authors seasine , even at the defenders instance , unless the defender alleadge a better right , iuly . . lord frazer contra laird of phillorth . a decreet of removing , for not finding caution in absence , was found null by exception , in respect the title libelled on , was not produced , but the infeftment of another person of the same name fraudfully mentioned in the production , so that it was not sustained as titulus bonafides , to give the possessor the fruits , iune . . neilson contra menzeis of enoch . a decreet being stopped on a bill , was found not to be recalled , but only the extracting thereof to be forborn till the party were heard on the grounds of the bill , and that though it lay over several years , it needed not wakening , iuly . . broadie of lethem and the laird of riccartoun contra lord kenmure . a decreet arbitral was found null , as not being within a year of the submission , though it had no time , but a power to the arbiters to meet at their convenience and prorogat , but did not prorogat the same , february . . mcgregor contra menzeis . a decreet arbitral was sustained without submission in writ , it being proven by the parties oath , that he so submitted , and by the arbiters oath , that they so decerned , though both the submission and decreet were only verbal , the matter being but of . merks , february . . hume contra scot. here the matter was a bond of . merks , suspended and determined to . merks . decreets of inferiovr covrts were found not to be taken away upon iniquity , though it be instantly verified by the decreet , by way of suspension without reduction , ianuary . . ker contra lord rentoun . a decreet of an inferiour court was not reduced simply , because advocation was produced before extracting , being after sentence , but was reduced because the advocation was produced before eleven hours , which was the ordinary hour of beginning to sit , but the sheriff sat that day an hour before ordinary , which the lords found sufficient presumption that it was of purpose to prevent the advocation , iuly . . laird of lambertoun contra hume of kaimes . a decre●et of an inferiour court was not sustained as in ●oro , where a term was taken by a procurator , to prove a defense without a mandat or writ produced that might in●er the same , november . . chalmers contra lady tinnel . a decreet of an inferiour court was found null for want of probation , bearing only that the defender compeared , and con●essed the debt , without proponing any other alleadgeance or de●ense , and not subscribing his acknowledgement , iuly . . guine contra mcken . a decreet of an inferiour court upon compearance , was not found null by suspension , without reduction , though it had visible nullities , and was a small matter , inter pauperes . november . . baxters in the cannongate contra a decreet of session was reduced as null , being ultra petita , iuly . . waison contra miller . a decreet of session in foro , whereby in a suspension a sum being alleadged paid & not instantly verified , the letters were found orderly proceeded conditionally , if any thing were produced by such a time , it should be received , and was not produced after , which the lords would not admit , it being now produced in a reduction of an appryzing of the said decreet , now in the hands of a singular successor , iune . . laird of tillieallan and condie contra crawfoord . a decreet of parliament was taken away by double poynding without a reduction , the same being referred to the lords by the parliament upon supplication on this reason , that it was pronunced against a forefault person alter his death , without calling the kings officers , iuly . . earl of argile contra mcd●wgal of dinolich and raca . a decreet of parliament rescinding a dishabilitation of the children of forefault persons without citation , was sustained , there being no citation of the children to the dishabilitation , nor restitution by way of grace , but in iustice , the children being infants , incapable of the crime , february . . sir robert sinclar contra the laird of wedderb●rn . delivery vide chyrographum , december . . ●●net thomson contra stevinson . delivery of an assignation was not found necessary to validate the same , being granted by a defunct to his near relation , though not in his family , though it bear not a clause to be valide without delivery , seing it bear a reservation of his liferent , and a power to dispose , evidencing his purpuse , not to deliver the same , and so importing the writ to be valide without delivery . delivery of three dispositions in tailzie to a daughters son , was found to be implyed by a clause in the first dispensing with delivery , and seing the substantials of the rest were the same with the first , and only qualified the same conform to the reserved power in the first , they were all sustained , though the other two had no dispensatory clause , but so that what was in the first , for the benefite of the heir , should be holden as repeated in the rest , that by the rest , the heir might not be in a worse case , iuly . . elle●s contra ingles●●●n . delivery of bonds of provision to children is not presumed to have been at ; or near the date , but must be proven to prefer them to posterior creditors , iuly . . iohnstoun of sh●ins contra arnot . depositation of a writ was found probable by the notar and witnesses insert , where the writ was not produced by the party , in whose favours it was principally , but by a third party , iuly . . drummond contra campbel . a designation of a gleib by way of instrument of a nottar , was not sustained without production of the testificate of the ministers designers , december . . paterson contra watson . designations of gleibs must first be of parsons before bishops lands , though they were feued before the act anent manses and gleibs , and built with houses , so that the feuar must purchase as much ere the other kirk lands be affected , ianuary . . parson of dysart contra watson . designation of one to be tutor testamentar by his own acknowledgement , was found not to prove against him , where by the testament , the contrary appeared , iune . . swin●●●n contra notman . designation of a manse was sustained by intimation out of the pulpit , or at the kirk door , warning the heretors thereto , as being the constant custom , though some of the most considerable were ou● of the countrey , ianuary . . minister of hassendene contra duke of buccl●●gh . designation of a gleib was sustained , though done but by two ministers , the bishops warrand being to three without 〈◊〉 qu●run● , unless weighty reasons upon the prejudice of parties were shown , february . . minister of cockburnspe●h contra his parochioners . devastation total was found to liberate from publick maintainance , february . . baxters of edinburgh contra heretors of eastlouthian . diligence was not required of a person whose name was not intrusted in the infeftment of annualrent , to make him comptable for ommis●ion , but only for intromission , december . . cass contra wat. a discharge to one of more contutors , was ●ound not to liberate the rest , except in so far as satisfaction was given by the party discharged , or in so far as the other contutors would be excluded from recourse against the party discharged , december . . seatoun contra seatoun . a discharge of rent not designing the writer thereof , was found null , unless the user thereof designed the writer , because it was of . pounds of annualrent yearly , and that thereby an infeftment of annualrent would be cled with possession , and preferred to another annualrent , iuly . . scot contra silvertoun●il . a discharge being general , was found not to extend to a sum assigned by the discharger before the discharge , albeit it was not intimate before , unless it were proven that payment was truly made for this sum , february . . blair of bagillo contra blair of denhead . a disposition of moveables was preferred to an arrestment on an horning anterior to the delivery , seing the disposition was before the horning , and the delivery before the arrestment , iuly ● . . bouse contra baillie iohnsto●● . a disposition was reduced on the act of parliament . as in fraudem creditorum , though the disponer was not bankrupt , and that he had reserved the power of a considerable sum to sell land to pay his debt , which the creditors might affect , seing the creditors ought to have preference according to their legal diligence on the whole estate till payment , february . . lord lour contra earl of dundee . dispositions of heretable rights are only reducable upon the act of parliament against bankrupts , and not by exception or reply , though betwixt father and son & in re parvi momenti , viz. . pounds , iune . . reid contra harper . a disposition by a husband to his wife of an additional ioynture , she being sufficiently provided before , was found reduceable at the instance of anterior creditors , albeit the husband was no bankrupt , but because he had no estate un-liferented or affected , albeit the reversion was much more worth nor the creditors sums , but the relick offering to purge the prejudice by admitting the creditor , who had appryzed , to possess lands equivalent to his annualrent , he assigning to the relick what he was satisfied by the ioynture lands , and with this provision , that if the legal expired she should not be absolutely excluded . the lords found the offer sufficient , february . . lady craig and greenhead contra lord loure . a disposition omnium bonorum , without any cause onerous , and without delivery , was found not sufficient to exclude the necessity of confirmation and paying of the quote ; iune . . procurator-fiscal of the commissariot of edinburgh contra fairholm . a disposition omnium bonorum , though with possession was ●ound not to exclude the quote and confirmation , seing it bear a ●eversion to the disponer , during his life to dispone of the goods notwithstanding , iuly . . commissar of saint andrews contra laird of bousie . a disposition of land was found to carry all right that was in the disponers person , and to import an assignation to a reversion , which needed not intimation , seing the seasine was registrat in the register of seasines , december . . beg contra beg. a disposition of lands was found imported by an assignation to the mails and duties in all time coming , against the heir of him that granted that right , and that the heir was obliged to renew a compleat legal disposition , with a procuratory of resignation , and precept of seasine , iuly . . sinclar of hirdmanstoun contra cowper . a disposition by one brother to another of his whole estate , bearing for satisfying of his debts enumerat , and containing a power to the purchaser , to satisfie what debts he pleased , and to prefer them , was found valide and not fraudulent , in so far as extended to the purchasers own sums due to him , and for which he was cautioner for his brother , as if it had born these to be paid primo loco , and thereupon one of the creditors whose debt was enumerat in the disposition , was postponed to the acquirers own debt and cautionry , till they were first satisfied , ianuary . . captain newman contra tennents of white-hill and mr. iohn prestoun . a disposition was reduced , because given by a weak person to him , who was lately her tutor ante redditas rationes , and done of the same date with a contract of marriage , whereby she was married to his nephew , who got the disposition , and died ere he was married , albeit he who got the disposition was her mothers brother , who educat and alime●●ed her , and the pursuer of the reduction was her grand-fathers brothers son , who had not noticed her , but she was an ignorant person , half deaf , february . . french contra watson . a disposition of moveables in writ , bearing onerous causes , expressing a sum , and others generally , was fou●● not to prove the cause onerous by the narrative , being 〈◊〉 dulent , leaving nothing to other creditors , nor 〈…〉 by the acquirers oath , but also by the oaths of the 〈◊〉 whom payment was made , november . . henderson contra anderson . a disposition of lands bearing the buyers entry to be at whitsonday , and to the cropt of that year , was found not to extend to the cropt of corn that was sowen , and standing on the ground that year the time of the buyers entry , or to any part of the rent , payable for the land , f●om the whitsunday before to the whits●nday at which the buyer was to enter , february . . murray of auchtertyre contra drummond . a disposition of lands and universal legacy , both contained in one infeftment , in which there is a sum provided to children , not being particularly annexed either to the disposition of legacy , the disposition of lands being found null , as being in a testament , the universal legacy was found burdened with no part of the provision , seing by the nullity of the disposition , the children had right to their portion of the lands , which exceeded the sum they were provided to , february . . pringle contra pringles . a disposition granted by a person who was insolvent , and thereafter notoriously bankrupt , was not reduced as not proceeding upon a necessary cause , or as being a preference of one creditor to another , none having done diligence , in respect the disposition was granted for a bargain of victual sold and delivered a month before the disposition in question , whereby the disponer was alleadged to become bankrupt ; but it was not decided , whether a notorious bankrupt could after he was so known , prefer one creditor to another , when none of them had done diligence , iuly . . laird of birken●●g contra grahame of craig . a disposition of lands was found to imply an assignation to the reversion of a former wodset , and that it needed no intimation , the infeftment on the disposition being registrate , though a posterior assigney had first redeemed , november . . gu●hrie contra idem december . . beg contra beg. division of lands and a muire betwixt co-heirs , was reduced upon a considerable inequality , though not near the half value , and though the division proceeded upon the reducers o●n brief of division , december . . monteith of corruber contra boid . a donation was not presumed by a mother to her child , by giving out money in her name , with power to uplift and re-imploy , in so far as she was debitor to the child , but pro reliquo , december . . fleming contra her children . donation of aliment by a mother to her son , who had no other means , was presumed to liberate him from repetition , but was not found so against his step-father , for the years after his marriage , iune . . melvil contra ferguson . donati● inter virum & uxorem , was found revockable , albeit it was not a pure donation , but in lieu of another quo ad excessum , seing it was notabilis excessus , november . . children of wolmet contra lady wolmet and dankeith her husband . do●atio inter virum & uxorem , was sustained to recal the acceptance of an infeftment in satisfaction of the wifes contract . february . . relict of morison contra his heir . donation betwixt man and wife revockable , was found not to extend to a contract of marriage , though made up during the marriage , there being none before , november . . m●gil contra ruthven of gairn . donatio inter virum & uxorem , was found not revockable , if it were granted upon consideration of what fell in by the wife after her former provisions , though that would also have belonged to the husband jure mariti , yet might be the ground in gratitude of a donation remuneratory , november . . halyburtoun contra porteous . donatio inter virum & uxorem , being in question , where there was no contract of marriage , but an infeftment of all that the man then had , and after a second infeftment , but stante matrimonio ; the lords found that the first was valide , there being no contract before , but they reduced the second , finding no remuneratory provision of the wife to answer both november . . inter eosdem . donatio inter virum & uxorem , was found not to reach an infeftment of lands , to warrand and make up the principal lands in the contract such a rent , albeit there was but a personal obligement in the contract , and that the obligement to infeft in warrandice , was therein satisfied and extinct , november . . nisbit contra mur●ay . a donation was presumed of aliment by a goodfire to his daughters child , who was long in his house , and after the mothers death continued still without any agreement with the father , iuly . . ludquharn contra geight . donatio inter virum & uxorem , was found relevant to recal a bond granted by a h●●band to his wife bearing ( that he thought it convenient that they should leave a part , and therefore obliged him to pay a sum yearly for her aliment ) albeit it bear also that he should never quarrel or recal the same , as importing a renunciation of that priviledge , february . . living stoun contra beg. donation betwixt man and wife was found to extend to a charter bearing lands and a miln , where the contract of marriage bear not the miln , and that it was not as an explication of the parties meaning , and so was revocked by a posterior disposition of the husband to another , february . . countess of hume contra the tenents of old●a●●us and hog . donation betwixt man and wife was found not to extend to a donation by a husband to his wifes children of a former marriage , of her goods belonging to him jure mariti , and so was not revockable as done to the wife , though to her bairns at her desire , ianuary . , hamiltoun contra baynes . a donation by a husband to his wife by a tack of his whole lands , not liferented by her , and bearing for love and favour , and for enabling her to aliment her children , and bearing a small duty in case there were children , and the full rent if there were none , was found valide , as being remuneratory to make up the defect of the value , which by contract , her liferent lands were obliged to be so much worth ; superceeding to give answer , wheither the tack would be null at the instance of creditors , lending sums after the tack , as latent and fraudulent , if it were not proven remuneratory ; or wheither a donation betwixt man and wife is null , and pendent as a bairns portion till the husbands death , and if the borrowing thereafter would prejudge the same , there being no lands left un-liferented thereby , ianuary . . chis●holm contra lady bra● . donation betwixt man and wife revockable , was found not to extend to wife subscribing her husbands testament , by which her liferent lands were pro●ided to their daughter , which was not ●ound alike , as if it had been in favours of the man himself , who is naturally obliged to provide his daughter , iuly . . murray contra murray . donation by a man to his wife , by a great additional iointure , where she was competently provided before , was found not to be taken away by a posterior testament made in lecto , providing a less additional iointure , without mention of the former , and being conditional , that the said last addition should be at the testators fathers disposal , if he returned to scotland , and he having returned , and having ratified the fi●st additional ioynture , the same was sustained , iuly . . countess of cassils contra earl of roxburgh . donatar of forefaulture obtaining decreet of parliament , upon fewer dayes citation then are required by law , reducing an infeftment on this ground , that it is holden of the forefault person base un-confirmed , and so excluded by the forefaulture , and not upon the five years possession of the forefault person , as heretable possessor ; the lords sustained the decreet , february . . marquess of huntly contra gordoun of lesmore . a donatar of single escheat , though excluded by the diligence of the creditors of the rebel before declarator , upon debts before rebellion , was found not to extend to prefer an appryzing of a wifes liferent , led against her husband as having right thereto jure mariti , in prejudice of the donatar of the husbands single escheat , though the appryzing was before declarator , for a debt before rebellion , seing the liferent had tractum futuri temporis , and is not as moveable sums , iuly . . earl of dumfreis contra smart . dovble poinding being raised in name of tennents by one of the parties competing , the same was sustained , though the tennents did disclaim the same , and that the other party was their present master , his possession being but of late and controverted , it was also sustained , though there was no particular duties libelled , but in general to be answered of the mails and duties , as is ordinary in decreets conform , iuly . . earl of argile contra dinloch and rara . a double poynding , calling two ministers , and preferring one , the other being absent , was found not irreduceabl● by the act of parliament anent double poindings , seing the decreet was only general , without expressing the teinds in question , and so was only found valide as to what was uplifted , but not in time coming , without having a right , iune . . gray contra in dvbiis● interpretatio facienda contra proferentem qui po●uit sibi lege●● dixisse clarius , iuly . . dowglas contra cowan . eiection vide clause in a tack , december . . dewar contra countess of murray . ejection was not sustained at the instance of an heretor by the tennents ceding the possession to a stranger , seing the tennent pursued not , and that tennent was not in natural possession , but both were to compet for the duties , that party having given an obligement to cede his right , december . . montgomry contra lady kirkcudbright . ejection at the instance of heirs infants , who had an old infeftment , but were not infeft themselves , was sustained for re-possessing , albeit the defender obtained decreet of removing , against their mother , and entered thereby , though the decreet bear to remove her self , ●airns , servants , &c. the pursuer being then in her family , february . . scots contra earl of hume . ejection was sustained upon putting the pursuer out of his house and land , naturally possessed by him , though the ejecter obtained improbation against the pursuer , and thereupon removing , seing he entered not legally by letters of possession . but this was not extended to the lands possest by tennents , who were induced to take right from the ejecter , to give violent profits of these lands , iuly . . campbel contra laird of glenure●y . erection granted by the king , erecting kirk lands into a temporal lordship , was found not to be habilis modus , while the same was not vacant , but in the hands of a commendator , albeit he was dishabilitat to brook any estate by his fathers forefa●ture at the time of the erection , seing his dishabilitation was thereafter rescinded in parliament , because he was no ways accessory to his fathers crime , whereupon his temporal provision was validate , and the erection medio t●mpore , was postponed to a posterior erection to the commendator himself , upon his own dimission , february , . sinclar contra laird of wedderburn . escheat single was found to reach a sum due as the liquidation of an obligement not to alienate lands , which was found moveable quo ad fiscum , albeit it came in the place of the right heretable , which would have belonged to the heir , february . . laird of philorth contra lord frazer . an escheat gifted by the king , was excluded by a creditor , who arrested during the rebels life , and pursued to make forthcoming after his death , he having none to represent him in mobilibus , dying at the horn , and so needed no decreet establishing the debt in one representing the defunct , and calling the representatives in the action for making forthcoming , albeit the arrestment was laid on after the rebellion , but before declarator , and for a debt contracted before the rebellion , february . . glen contra hume . escheat was found to carry a bond bearing annualrent , the rebellion ●alling before the first term of payment of the annualrent . iune . . dick contra ker. vide donator of escheat . escheat was not burdened with debts contracted after rebellion , february . . countes of dund●e contra stra●town ▪ vide gift of escheat . an execvtor pursuing a debitor of the defuncts , was not excluded by compensation , because that debitor had taken assignation from the defuncts creditor , after the defuncts death , seing thereby the defuncts debitor might prefer one of the defuncts creditors to another , which neither a debitor nor executor can do , but according to their diligence , february . . children of mouswal contra lowry of maxwelstoun . in a competition of executry of defuncts amongst their creditors , all who do diligence within six moneths of the defuncts death , by confirming themselves executors creditors , or intenting any action against the executor or intromettor , should come in pari passu , by act of sederunt , february . . an executor was found lyable to pay a creditor of the defuncts , albeit it was the price of land sold to the defunct by a minute , without restricting the debitor to the heir , who would only get the disposition , or causing the creditor dispone the land to the executor in lieu of the moveables , but reserving to the executor to seek relief of the heir as accords , iuly . . baillie contra hendrison . executors were found lyable for an annual payment , for years after the defuncts death , february . . hill contra maxwel . in the executry a child dying before confirmation of the mothers third , the father being alive , was found not to transmit to the father as nearest ag●at , but to the mothers brother , and that it was not in the case of the legitim from a father , which is transmissible without any confirmation , or adition to the succession , february . . forsyth contra pa●oun . executry was found bipartite , where there was but one child , which was forisfamiliat and provided , without alleadging in satisfaction of the bairns part , seing here the child offered not to confer , february . . dumbar of hemprigs contra frazer . an executors proper creditor competing with a creditor of the defuncts , both on arrestments of a part of the defuncts inventary , the defuncts creditor was preferred to the executors doing more diligence , especially before this sum was established in the executors person by decreet , iuly . . ve●ch contra lord ley. an executor was not liberat by a decreet of exoneration , as to the creditors not called , who needed not reduce the same , neither yet by exhausting , by payment of lawful debts , instructed by writ , before intenting of the pursuers cause , unless sentence had been first obtained against the executor , who cannot prefer one creditor to another , but according to their diligence , november . . iohustoun contra lady kincaid . an executor ad non executa , was found to have no place where the former executor had obtained sentence , albeit no payment , and albeit he was executo● dative , and a mee● stranger , november . . down contra young. an executor was found obliged to depone upon the kinds , quantities and prices of the goods in the inventary , at the instance of an executor ad omissa . notwithstanding of the oath given by the executor at the confirmation , iuly . . ker contra ker. the executor of a donator of liferent was found to have right to the bygones of that liferent before the donatars death , and that the donatars heir had only right to the liferent after the donatars death , albeit there was no declarator establishing the liferent in the donatars person before his death , ianuary . . kiry contra nicolson . executors having obtained decreet for the defuncts debt , the testament is thereby execute , although they have not obtained payment , and after the death of one of them , the decreet doth not accresce with the office to the other , but the one half belongs to the executors of the deceast executor , iune . . gordoun contra laird of drum. co-execvtors being confirmed , one dying , the office accresceth to the rest , and all benefit that follows thereon , but the defunct executor being nearest of kin , his part as nearest of kin , is transmitted to that executors nearest of kin , and does not belong to the surviving executors , february . . ●ells contra wilk●e . co executors after obtaining sentence , may pursue for their shares severally , without concourse or calling the rest , ianuary . . menzeis contra laird of drum. execvtors creditors were not excluded by the defunct debitors alleadging compensation upon an assignation to a debt due by the defunct , albeit anterior to the confirmation or diligence , yet posterior to the defuncts deceass , whereby one creditor is preferred to another , which cannot be done , either by the executor or by the debitor , but according to their diligence , february . . crawfoord contra earl of murray . an executor creditor was not found lyable for diligence , where the confirmation was questionable , whether it was by a competent commissar or not , december . . goldsmiths of edinburgh contra haliburtoun . an executor creditor long since confirmed , was found lyable for no diligence to other creditors , but to assign them next to their own payment : and as to the future , the lords resolved to consider the motives on both hands , and make an act of sederunt thereanent , iuly . . harlaw contra hume . execvtions of arrestment or the like on the sabbath day , are null by exception , as was found , february ● . . oliphant contra dowglas of dornoch . in executions , giving of a co●y was found an essential requisite , and in executions requiring registration , that the same must be exprest in the execution registrate , else the same is null , although it be added ex post facto by the messenger , and offered to be proven to be true , iuly . . keith contra iohnstoun . exceptions which do not acknowledge the libel , do not free the pursuer from proving of the libel , but both parties must prove hinc ind● , iuly . . mitchel contra hutcheson . the exception of the pursuers lossing the plea by beating the defender in the session-house , was sustained without necessity to alleadge effusion of blood , but the lords determined not whether they would admit the probation of the fact before themselves , or assign a long term , that the defender might insist criminally before the iustices , that it being there cogno●ced , it might be here repeated in termino , iuly . . harper contra hamiltoun . an exception being proponed without denying the libel , or quantities therein , the defender succumbing in probation , the libel was holden as acknowledged and proven , albeit the exception of its own nature did not acknowledge the same , but it was recommended to the parties to accord , december . . lord rollo contra his chamberlane . exhibition of defuncts writs by his heir was sustained , not only for such as belonged to the defunct , but for such also as were in his possession at his death , ianuary . . reid contra reid . exhibition of writs which the defender before intenting of the cause had , and fra●d●ully put away , was sustained by witnesses to prove the having , in respect of the defenders fraud , in indeavouring to transvert the right , yet not thereupon simply to decern to exhibite , but only unless the defender refu●e to tell quo modo des●●t possidere , iuly . . fountain and brown contra maxwel of nethergate . exhibition of an assignation out of the granters hands , was found not probable by witnesses , albeit the granter was alleadged to have received it as agent for the pursuer , december . . fairly contra creditors of dick. exhibition of compt books being craved in a compt betwixt the successors of two brethren , not to instruct but to make up the charge , in respect of their near interest and commerce , and that they were co-partners , the books were ordained to be put in the auditors hands , and if thereby co-partnery appeared , or trust as factor for others , they should be exhibite to the other party , to frame his accompts by , otherwayes to be given back , and not to be seen by the pursuer ▪ iuly . . kelict of patoun contra relict of patoun . exhibition ad deliberandvm was sustained for all writs wherein there was any clause in favours of the pursuers predecessors , and for writs made by him , to persons in his family , wife , children and servants , on which no infeftment followed , december . . telzifer contra forrester and sc●aw of sornbeg . the like november . . galbraith contra ▪ extract of a bond registrate , was found not to instruct the debt against the heir of a party , whom the extract bear to have subscribed it , but only against the consenters to the registration : the like unless it were instructed that the defenders predecessor truely subscribed the writ , february . . a●cheson contra earl of errol : here witnesses ex officio , were admitted to instruct by way of reply . extract of a bond registrate against a party living , consenting by the procuratory , was found not to instruct , or prove against those who consented not , unless other adminicles to astruct the ●●uth thereof , were adduced , iune . . hay tailzeor contra hume of blackburn . a father as tutor of law , was found lyable to pursue for the annualrent of his childs mothers third of moveables , february . . beg contra beg. a father was ●ound lyable to receive his son in his family , and to entertain him as the rest of his children , or else to pay a modification for his aliment , albeit the father was indigent , seing the son had no means or calling to aliment himself , ianuary . . dick contra dick. a father was sound to be lawful administrator to his son in his family , not only in his pupillarity , but minority , as curator● honorarius , not lyable to o●●mission , or exclusive to other curators , but deeds done without his consent were found null , albeit his son resided not in his family , but followed the law , living still on his fathers charges , and having no calling or patrimony to maintain himself , neither was his fathers subscribing with him , found a sufficient authorizing of him , seing he subscribed with him as cautioner for him , december . . menzeis contra fairholme . a father taking a bond blank in the creditors name , and filling up his brothers name therein , and obtaining an assignation from him to his daughter , was not found as a bond of provision , revockable by the father , in respect the bond was registrate in the brothers name , november . . executors of trotter contra trotter . a father was not found obliged for annualrent of a legacy , uplifted by him , belonging to his son , as being his tutor of law , the son being alimented by the father , and in his family , december . . windrham contra ele●s . a father granting bond to a bairn in satisfaction of her portion natural , was found thereby to increass the bairns part of the rest of the bairns , and not to apply that bairns part to the heir , executor , or universal legator , as they who were obliged for the bond of provision , comprehending the bairns part , february . . megil contra viscount of oxenfoord . a few containing a clause irritant expresly● to be null upon the failzle , was found not to be purged at the bar where offer of payment was made , in which it differs from a feu , not having that clause , february . . laird of wedderburn contra wardlaw . feus of ward-lands granted before the act of parliament . against feus , was found valide , albeit granted by these who held ward of subjects , without consent of their superiour , iune . . steuart of torrence contra feuers of ernoch . a feu was found to be renunceable by a feuer , to free him of the feu-duty , albeit it was constitute by a mu●ual contract , obliging the feuer and his heirs , to pay the feu-duty yearly , seing by a back-bond of the same date , he was allowed to renunce when he pleased , which was found effectual , to take away that personal obligement , being extrinsick to the feu , though in the feudal contract against a singular successor in the feu , february . . brown contra sibbald . a few-d●vty was found personally to affect a liferenter for these years only , whereof she lifted the rent , iuly . . windrham contra the lady idingtoun . forefavltvre of a paricide , as having killed his own mother , being gifted by the king , and infeftment thereon , was found to have no effect , unless there had been a doom of forefaulture pronunced by the iustices , but not upon the ordinary course against absents , declaring parties fugitives for not underlying the law , which can only reach their moveables , iuly . . zeaman contra oliphant . forefaulture having with it dishabilitation of the forefault persons children , declaring them incapable of lands or estate in scotland , whereby the sons estate fell in the kings hand , and was disponed to a donatar , who set tacks , and the son being restored by sentence of parliament , as an infant not accessory to the crime ; the infeftment and tack thereon were found to fall without calling the persons interressed before the parliament , notwithstanding of the act . prohibiting restitutions by way of reduction , and declaring rights granted medio tempore , by the king to be valide , which was not found to extend to dishabilitation of the children , but to the principal forefalture , february . . dowglas and sinclar her husband contra the laird of wedderburn : here both the dishabilitation and remission thereof proceeded without citation . forefalture and five years possession of the forefalt person , before the forefalture , makes a valide right , notwithstanding of the posterior act of parliament for registration of seasines and reversions , &c. yet interruption within the five years , was found to elide the same by inhibition , and granting a new corroborative right , especially where citation was used immediatly before the five years , albeit the corroborative right was post commissum crimen , iuly . . earl of southesk contra marquess of huntly . forefalture and five years possession was found not relevant by exception or reply , without a re●our by an inquest , iune . . hume contra hume . forefalture gives the king or his donator five years rent of any land the forefalt person was in possession off the time of the sentence , whether by tack or not , ianuary . . inter eosdem . in forefalture a donatar was found excluded by appryzing , at the instance of the creditors of the forefalt person , who had comprized before the committing of the crime , and had charged the superiour after the crime , but before the process of forefalture , iuly . . creditors of hume of k●llo contra hume . the donatar of forefalture pursuing removing , was found not to be excluded by an in●e●tment on an appryzing granted by the king , being then immediate superiour before the gift , which was not found equivalent to a confirmation , but past in exchequer of course without notice , december . . earl of argile contra stirling . forefalture was found to exclude a creditor , founding upon a clause in the disposition made to the forefalt person by his father , reserving a power to himself to affect and burden the lands disponed by wodset or annualrent for such a sum , though the father had granted a bond to the pursuer , declaring the sum to be a part of the reservation , seing there followed no infeftment by resignation , or confirmation by the king , iuly . . learmo●th contra earl of lauderdail . forefalture vide gift , hague contra moscrop and rutherfoord . fravd of creditors being insisted on to reduce an additional ioynture after the debt appryzed on , the liferenter offering access to the appryzer for his annualrent , and to be totally excluded if it were not redeemed within the legal , it was sustained relevant ; here the husband was neither bankrupt nor insolvent , but there was no ready execution , because of the additional ioynture , february . . lady greenhead contra lord lour . fraud of creditors upon the act of parliament . was not found relevant by reply without reduction , though of a disposition by a father to a son in a small matter , iune . . red contra harper . fraud of creditors was not inferred by a clause in a contract , providing a ioynture to a wife , with condition of restricking her self to a part , that the superplus might belong to the bairns for their aliment , the whole ioynture being only proportionable to the condition of the parties , november . . wat contra russel . fraud in a debitors granting a bond to his brother , and taking a discharge of the same da●e and witnesses , and thereby proponing a defense against an assigney , was found relevant , and receivable by way of exception , unless the debitor could condescend upon a reasonable cause , for which the bond and discharge were so granted ▪ that it might not in●e● their design to deceive any that should contract with the receiver of the bond , december . . thomson contra hendriso● . fraudulent dispositions may be either reduced by the act of parliament . or declared to be affected with all execution , as if they were in the disponers person , december . . ele●s contra keith . vide ianuary . . captain newman contra fraud was inferred by a fathers granting a bond to his son who was forisfamiliat without a cause oner●us ▪ albeit the bond bear borrowed money ; yet formerly it was found to be gratuitous , and it bearing no annualrent , and only payable after the fathers death , the father after the date of the bond continuing in a considerable trade , and his estate being insufficient to pay his debt , the foresaid bond and adjudication thereon , was reduced at the instance of posterior creditors , as being a fraudulent conveyance betwixt the father and son to insnare creditors , and very hurtful to commerce , february . . pot contra pollock . the same , february . . french contra watson . fraud of creditors was found valide to reduce a disposition of moveables , being omnium ●●norum ; and that the narrative bearing special onerous causes was not sufficient , though the parties were not conjunct , but that it behoved to be astructed otherwayes then by the acquirers oath november . . hendrison contra anderson . fraud of creditors was inferred by the act of parliament . against an only son and appearand heir , provided to a great sum of money by his contract of marriage , so far as to make a part thereof forthcoming , for satisfaction of an anterior creditor , albeit the father was not insolvent , or made insolvent by the contract ; and albeit the contract bear no assignment to an heretable sum , but actual payment of money , february . . wat contra campbel of kilpont . fraud was not inferred by the latency of a translation to a tack by a husband to his wife , granted for quiting of her liferent of lands to his creditors , and therefore was preferred to an acquirer thereafter upon an onerous cause , february . . dam elizabeth burnet contra sir alexander frazer . a fravght was found only proportionably due to a skipper , where the ship was not fully loaden , unless he proved by witness●s that he intimate his going to sea , and required more loading , and abode his ●y dayes , without necessity to alleadge an instrument and protest taken thereon mentioning he was not fully fraughted , and craving more fraught , ianuary . . contra charters . frvits vide cropt , gordoun contr m●●●lloch . general letters upon presentation or collation of ministers , whether having benefices , or modified stipends , are prohibite by act of sederunt , and the same intimate to the writers and keepers of the signet , and clerk to the bills , but that every incumbent must have a decreet conform , although he produce his predecessors decrect conform , iune . . a gift granted by the king , erecting kirk-lands in a temporal lordship , was found not to be habil●● modus , while the same was not vacant , but in the hands of the commendator , albeit he was dishabilitat from brooking any estate by his fathers forefa●ture , at the time of the erection , seing his dishabilitation was thereafter rescinded in parliament , because he was no wayes accessory to his fathers crime , whereupon his temporal provision was validate , and the erection medio tempore was postponed to a posterior erection to the commendatar himself , upon his own dimission , february . . sinclar contra laird of w●dderburn . gifts of e●cheat competing , the gift last past in exchequer , but first past the seals , was preferred to the other , though the other took instruments against the keeper of the seal , for delaying him , seing the instrument was after the other gift was past , december . . steuart contra nasmith . a gift of a ward being to the behove of the superiors heir , and made 〈◊〉 of against the vassals , who had the rights with absolute warrandice , the gift was ●ound to accre●ce to the vassals , they paying a proportional part of the composition , february . . boyd of p●nk●ll contra tennents of cars●l●ugh . a gift was found to be affected with a back-bond granted by the donator , when the gift past the exchequer , and was registrate in the books of exchequer , albeit the back-bond was not conceived in favours of the the●aurer , but of a private person , and albeit the gift was assigned when it was incompleat before it past in exchequer , and the assignation , was intimat , ianuary . . dallace contra frazer of strei●ha● . gifts of escheat bearing all goods to be acquired , was ●ound to extend to goods acquired within a year after the gift only , and not within a year after the horning , iuly . . barclay contra barclay . heirs ●ound to have the benefite of an obligement to re-dispone lands , albeit heirs were not expressed , but appeared to be omitted by negligence , seing the clause bear not that they should be●redeemable any time in the disponers life , ianuary . . earl of murray contra laird of gairn . heirs were ●ound to have right to an annualrent , though heirs were not exprest , and though it bear only to be payed yearly to the annualrenter , and not heretably or perpetually , february . . pourie contra dykes . an heir , viz. a son being in●e●t as heir to his mother , dying without issue , his brother v●erine by that mother not found heir to him therein , but his father , february . . lennox contra lintoun . an heir found conveenable for the avail of her marriage , without calling the other●heir portioner who was dead , iune . . arbuthne● contra keith . heirs of line and not of conquest , ●ound to have right to a tack , albeit conquest , iune . . ferguson contra ferguson . an heir of line of a youngest brother by a several marriage , found to be the immediate elder brother of the former marriage , and not the eldest brother , iune . . lady clerkingtoun contra steuart . an heir male was found to be presently lyable without discussing the heir of line , where he was obliged to relieve the same , november . . scot contra bothwel of a●●hinleck . an heir svbstitvte in a bond , was found not to make the substitute heir lyable in solidum , but quo 〈◊〉 valorem of the sum , this was a mutual substitution of a sum payable to two brothers , or the surviver , iuly . . fleming contra fleming . heirs have right in a substitution , though only a person by name was substitute , without mention of heirs , and though that perso● died before the institute , ianuary . . innes contra innes . an heir apparent was allowed to have aliment from the liferenter , seing the whole estate was either affected with the liferent , or the remainder thereof was appryzed from the appeared heir for the defuncts debts , exceeding the value thereof , february . . brown contra liferenters of rossie . an heir apparent was allowed to have aliment of his grand-father , though he had voluntarly infe●t his son the pursuers father , and though the pursuer had a stock of money , liferented by his mother , here the grand-father was iately fallen to a plenteous estate , iune . . ruthven fe●ar of gairn contra laird of gairn . an heir apparent taking right to land from his grand-father , was found not to enjoy the priviledge of a singular successor , and to be in no better case as to that right than his grand-father , albeit his grand-father was living , and the oye then not immediate successor , iuly . ▪ lord frazer contra laird of phillorth . an heir apparent was found to have right to the rents of ●is predecessors lands ▪ although he dyed before he was infeft , and that the next heir intrometting with the re●●s of the years that the former appearand heir lived , was lyable to pay the said appearand heirs aliment , in so far as he intrometted , december . . lady tarsappie contra laird of tarsappie . an heir apparent pursuing for inspection ad deliberandum , was found not to have interest , to cause a party compt and run probation , that he might know the condition of the her●tage , though there was a contrary decision observed by dury , march . . hume contra hume of blacketer , seing the ordinary course since hath been contrary , iune . . l●s●ies contra ia●●ray . heirs in a tack found not to require service , but that such as might be served heirs , might enjoy the benefite thereof , iune . . boyd contra sinclar . heirship moveables was found competent to one who was infeft in lands , and though the same was appryzed , and the appryzer infeft , yet the legal was unexpyred , and the appryzing stood but as a collateral security , not as a full right , february . . cuthbert of draikies contra monro● of foul●s . heirship moveable was found to belong to an heir of person who dyed only infeft in an annualrent , iuly . . scrymzeour contra executors of murray . heirship moveable was not found competent to a person who was only heir apparent of tailzie , and dyed never infe●t . ianuary . . collonel montgomerie contra steuart . heirship moveable being renunced from the heir of line , in favours of his father , was found not to return to him after his fathers death , but to belong to his fathers executors , 〈◊〉 . . pollock contra rutherfoord . heirs 〈◊〉 clause . an heretable obligement quoad creditorem may be moveable quoad debitorem , iuly . . nasmith contra ia●●ray . an heretable sum was found so to remain notwithstanding of a requisition not being made conform to the clause of requisition , and so null as being provided to be required by the husband with consent of the wife , whose consent was not adhibite , nor was the showing the creditors intention to require his money enough , not being made debiro modo , ianuary . ● . steuart contra steuarts . an heretable bond was found moveable by a charge , thogh but against one of the ca●tioners , ianuary . . montgomery and his spouse contra steuart . an heretable bond bearing a clause of annualrent , was found not to be moveable , though the principal sum was not payable till the debitors death , seing the first term of payment of the annualrent was past , iuly . . gordoun contra keith . vide bond , iune . . and iun● . . one holden as confest was reponed against a decreet of an inferiour iudge , albeit a procurator compeared , and took a day to produce him , but without a procuratory , or proponing any defense that might show any information of the cause , and so no warrand to compear , november . . chalmers contra lady tinnel . holden as confest was not admitted against a defender absent , where the messengers execution did not bear personally apprehended , but that the messenger knew that the defender was in his house , but was forcibly keeped from access by his wife , iuly . . lindsay and swintoun contra inglis . an holograph discharge was found not to prove its date against an assigney , unless it were astructed by adminicles or witnesses , that knew it subscribed of that date , ianuary . . dickie contra montgomery . a holograph writ proves not quo ad datam , yet the date may be astructed by witnesses above exception ; but persons of ordinary credite , one of two being a towns officer , were not found such witnesses , albeit no exception was competent against them for being ordinary witnesses , iune . . bradie contra the laird of fairny . holograph was found proven by production of a transumpt done judicially , and the oaths of the witnesses , and friends of the defunct who made the wri● transumed amongst his children , altering their portions ; and though a part of it was written by another when the defunct was so weak that he could not write , yet the writ was found holograph as to the rest , but not as to this article , albeit the principal writ was lost and not produced , but only the judicial transumpt taken off when it was produced , iuly . . mckenzie contra balla●dine of newhall . vide death-bed , november . . calderwood contra schaw . homologation to communicate appryzings , was found not to be inferred by the singular successors concurring de facto against third parties , unless it were proven by the singular successors oath , that he knew of such a bond , iuly . . tailzifer contra maxtoun and cunningham● . homologation of a decreet was not inferred by payment thereof , without a charge , seing the givers thereof were officers having no commission , or any civil authority , iuly . . iack contra feddes . homologation of a decreet arbitral quoad , one of many articles of different matters , was found not sufficient for the whole , november . . pringle contra din. homologation of a fathers legacy to his children , was inferred by his wife , confirming the testament without protestation , not to prove that legacy , here the wife by her contract was provided to the liferent of all her husbands moveables , february . . more contra stirling . homologation of an infeftment granted to a wife in satisfaction of her contract of marriage , was inferred by her continuing six or seven years to possess , and setting several tacks as liferentrix , where the clause in the contract was only in general to imploy money on land , or annualrent , and no infeftment followed thereon , nor was the husband in possession in his life , but the wise began the possession , albeit the acceptance of the infeftment was to her prejudice , and was not in her hand , nor did the seasine repeat that provision particularly , but only according to the conditions contained in the bond , the seasine being registrate , and the bond still in the nottars hand who took the seasine , in which case the wife was presumed to know and not to be ignorant of the terms of her infeftment , november . . skeen and her spouse contra ramsay . homologation of an infeftment , bearing in satisfaction , &c. was sound not to be inferred by possessing the lands , seing the possessor had another title , as heir apparent to persons who dyed infeft therein , unless it were instructed that the possession was attained by processe upon the infeftment in satisfaction , december . . barns contra young and her spouse . homologation of a feuars right , and passing from a declarator against the same , upon a clause irritant , was found not to be inferred by acceptance of two years feu-duties after the declarator , except as to these two years that more duty could not be demanded therefore , iune . , earl of cassils contra agnew . homologation of a bond granted by a minor , without consent of his father as lawful administrator , was found not inferred by payment of annualrent by him after his majority , especially not being of his own money , nor by taking a discharge of the annualrent to the principal , and himself as cautioner , february . . mckenzie contra fairholm , here the discharge related the bond both as to principal and cautioner . homologation of a minors bond , was not inferred by pursuing for his relief after his majority , but that in case he were not liberate by that mean , he might return to his reduction upon minority , february . . farquhar of to●ley contra gordoun . homologation of a tack of teinds which was null , as wanting the consent of the patron , was not found inferred by the ministers receiving the duty conform to the tack before reduction thereof , february . . chalmers contra wood of balbegno . homologation of a decreet was not inferred by giving bond of borrowed money for the like sum , and taking a discharge of the decreet , seing it was no voluntary deed , but the debitor was then under caption in the messengers hands upon the decreet , neither a transaction , if the bond contained all the sum in the decreet , unless abatement had been gotten , iuly . . row contra ho●stoun . homologation was not inferred by a husbands discharge of annualrent , as tutor to his wifes child , to infer the child had right to the annualrent , whereas by the bond it self the wife was liferenter , ianuary . . doctor balfour and his spouse contra wood. homologation of a decreet of consent , containing a transaction of parties at the bar , without any subscription , was inferred by a simple offer of a disposition conform to the said transaction be that party who quarrelled the decreet as without warrand , but was not inferred by consignation of the disposition , for obtaining a suspension upon obedience to be delivered up , if the lords saw cause , february . . lowrie contra gibson . homologation of a contract of a minor having curators ; without their consent , was not inferred by payment of a years annualrent of the sum contained in the contract , being made ●o an indigent sister , who had no other provision , but homologation was inferred by a decreet of registration of the contract , at the instance of the party , none quarrelling the same after his majority , though there was neither charge nor execution used thereon , and in the decreet of registration , there was neither protestation nor reservation , that the same might be quarrelled in any point , iune ● , ▪ hume contra lord iustice clerk. homologation of a testament subscribed by a wife at the desire of her husband near his death , was not in●erred by her confirming the testament under protestation , not to prejudge her own right , though she might have attained her interest in the moveables , by confirming her self executrix creditrix , iuly . . murray contra murray . horning granted summarly upon the late iudges act , at the instance of heirs or executors confirmed , was found to be ●ull , upon the late act of parliament , declaring their ludi●●●● proceedings to be quarrellable , seing there● was no ●●justice in the matter , but the lords gave the suspenders such time for their defenses as in an ordinary action , ianuary . . barnes contra laird of applegirth . horning doth not affect the rebels moveables by the act ▪ but that the rebel may effectually deliver them to one who had disposition of them before the horning , iuly . . bower contra barclay and iohnstoun . horning was not found null by payment before denunciation , to be proven by the creditors oath ▪ or holograph discharges , but by the denuncers oath of verity , february . . montgomery contra montgomery and lawder . horning granted against the magis●rates of a town upon the act of their council , obliging to pay a debt upon a bill without signet , though there was no process whereon the act proceeded , or clause of registration therein , february . . lady swintoun contra magistrates o● edinburgh . horning was sustained though on a charge of six dayes beyond dee , contrary to the act of parliament . ●n respec● it proceeded on consent of parties upon a clause of registration , and since that act , such hornings had never been quarrelled , december . . laird of phillorth contra forb●s of as●oun and the lord frazer . a hvsband was found lyable to his wifes debt , though not established against him during the marriage , in so far as might be extended to the benefite of her lif●rent duty resting after the marriage dissolved , which could not belong to the husband , but with the burden of her debt , february . . cunninghame contra dalmahoy . a husband was found lyable for his interest in moveables intrometted with by his wife of her first husbands , albeit there was an interveening husband who was not found to be first discust , but reserving to the defender to pursue his heirs as accords , february . . dumbar or hemprigs contra lord frazer , vide interdiction , february . . laird of milntoun contra lady milntoun . a husband was assoilzied from his wifes debt , albeit litiscontestation was past , seing she was dead , and albeit there was an interlocutor ordaining him to give bond to pay what his lady should be found due , iuly . . inter eosdem . a husband being pursued to remove from a tenement , which he possessed jure mar●ti , no process was sustained till the wife was cited , iuly . . iohnstoun of shee●s contra brown. a husband confirming his wifes testament , by giving up his own moveables and debt , though he made faith upon the inventary , yet was not excluded from debarring the wifes legatars upon another debt then forgotten , though not old , december . . anderson contra cunninghame . but he being lately charged on a debt before the confirmation , it was not allowed as forgotten , iune . . inter eosdem , a husbane was not found lyable for his wifes debt jure mariti after her death , though in her life there was decreet against her and him as husband , seing there was no execution thereon in her life , december . . dam rachel burnet contra lepers . a husband and wife were not found lyable as lucrative successors for a competent tocher su●eable to their condition , but for the superplus , and if the provision was exorbitant , not only the wife but even the husband is lyable in quantum lucratus est , december . . inter eosdem . a husband receiving a sum provided to his wife for her use , ornaments , or abuilziaments , or any other use she pleased , excluding the husband and his jus mariti , was found to exclude the wifes executors , seing the husband sufficiently furnished his wife , and the granter of the provision freely made payment to the husband , february . . executors of the lady piltoun contra hay of balhousie . a husbands escheat falling by being denunced as husband for his in●erest upon his wifes bond , not subscribed by him , and only at the mercat cross of edinburgh , he residing out of the countrey , was found not to be liberate by the dissolution of the marriage , february . . lord almond contra dalmahoy . a husband was decerned for his wifes debt , as being holden as confest , upon refusing to give his oath of calumny whether he had just reason to deny what his wife had declared upon oath , the decreet for that reason was reduced , february . . grahame contra touris and her husband . a husband having married a taverner , who after proclamation of the marriage had bought twelve hogsheads of wine , and the pursuer having intented action against her and him as husband , she dyed within four moneths after the marriage , the husband delivered the keys of the sellar to the magistrates , and inventared the wines , and abstained from intromett●ng ; the husband was not found lyable for what was vended before the marriage , nor for what remained unfold after his wifes death , but the burde● of probation was put on the husband , to prove what was vended before , and what remained after the wifes death , otherwise to pay the whole , november . . andrew contra corse . a husband ratifying his wifes disposition to her children , by the first marriage , though after proclamation , it was ●ound valide , and not revockable , as donatio inter virum & uxorem , february . . hamiltoun contra banes. hypothecation of the profites for the rents , was found to prefer a town setting their customes , as to the duty due by a sub●acksman therfore , though not to the town , but to the principal tacksman , and though a creditor of the tacksmans had arrested the sub-tack-duty for the tacks-mans debt● the town using no diligence till they were called in a double poynding , yet were preferred , ianuary . . anderson , &c. contra the town of edinburgh . hypothecation of the fruits of the ground , for the rent of the same year , was found valide to the setter of a fishing against the do●atar of the tenents escheat , who had intrometted therewith , and was found lyable to restore , iuly . . cumming of alter contra lun●d●an . ignorantia●ivris non excusat etiam in mulieribus , as that a bond moveable in the wifes name belonged to the husband ▪ iune . . murray contra in an improbation a party user of a writ challenged , but not produced by himself , was admitted to abide thereby qualificate , viz. that he used it as a writ produced by another , which was in his favours , and knew nothing of the forgery thereof , iuly . . laird of lambertoun contra earl of levin and kennedy . improbation of a writ by exception being proponed , and an act extracted , the defender was not admitted to alleadge nullities , quia excepti● falsi est omnium ultima , iuly . . peacock contra baillie . in an improbation , testimonies were published to both parties , and the defender was made closs prisoner , iuly . . lambertoun contra kennedy . improbation was found necessary to be continued , though it bear an express priviledge without continuation , which was thought to pass of course , contrary to form , february . . laird of auchinbreck contra mcleree . in an improbation after articles indirect for improving , and articles approving , and a dispute in writ thereon , and witnesses hinc ind● examined on all before discussing the relevancy , and the testimonies closed , and new articles hinc inde , and a dispute in writ thereon , the parties were heard viva voc● , and then all advised , iuly . . laird of lambertoun contra earl of levin and kennedy . in an improbation a writ was improven , though two witnesses in it were alive , and examined thereon , and deponed it was his subscription , the other deponed it was like his when he was young , seing the writ was null for want of the designation of the writer , and other presumptions against it , and seing none of the witnesses remembred that they subscribed , or that they saw the party subscribe , so tha● their testimonies were held no more but as de credulitate ▪ that this was their subscription , seing no ●●n could possibly swear , but that this might be ●en●ied by some other , not remembring of his subscription , neither was holograph writs found sufficient to astruct , and many witnesses deponing these were the hand writ of the parties ; yet seing they deponed not that they saw these written by the party , it was but like the other , that these were so like his ●and , as that they believed it to be the same , which therefore would have proven , if there had not been contrary presumptions and evidences proven ; here some of the lords were unclear that this improbation could absolutely ●mprove as false , but that the writs never having been in the creditors hands , and long keeped up by the producer suspecta fama , and many presumptions contrary proven , it might conclude the writs suspect , and not authentick and probative , but not to be forged or false . which infe●s p●nam sa●guinis , and ought to be on clearer probation then such presumptions , iuly . . inter eosdem . improbation of rights of lands was found not to be sustained upon the advocates concourse , without the kings special warrand , albeit it was of kirklands erected wherein the pursuer stood infeft as superiour till he were redeemed by the king , by the act . and ▪ anent erections , iune . . laird of prestoun contra alred . here some of the lords remembred the like done in the case of hopes goodson when he was advocate . improbation being sustained by exception against an assigney , it was found sufficient that the assigney abode by the writ delivered to him as a true writ , and that he knew nothing to the contrary , and producing his cedent to bide by it , who though alleadged to be bankrupt , yet was not obliged to find caution , nor go to prison , but only to enact himself to appear judicially whensoever any thing that might infer the falshood of the writ was referred to his oath ▪ and his being holden as confest , should be effectual to prove both against cedent and assigney , ianuary . . grahame and iack contra bryen . improbation being sustained by exception , and terms assigned to the defender to improve , and to the pursuer to abide by the write , after the term was come , the defender was admitted to propone payment by bill , the act not being extracted on the improbation , though it be omnium exceptionum ultima ; ianuary . . contra earl of kinghorn . in improbations the lords declared they would grant three terms for production of rights of lands , and appointed the ordinary to intimate the same , november . . hay of haystoun contra drummond and hepburn . improbation upon certification was found null , because the defender was then prisoner of war in ireland , and his right was after acknowledged by an agreeement , though not perfected , iuly . ● . campbe● c●ntra laird of glen●rchy . in an improbation the witnesses insert were examined ex officio what they knew of the truth , or forgery of the writs in question , though the writs were not produced , there being pregnant presumptions , and fragrant fame of forgery , iuly . . barclay contra barclay . in an improbation after certification was extracted , the lords examined witnesses as to the forgery , in so far as it might be known ▪ without production of the writs in question , and though th● witnesses were accessory to the forgery , november . . inter eosdem . in an improbation where the writs were once judicially produced in exchequer , and wilfully keeped up , certification being extracted , the lords upon copies examined the witnesses insert and writer , who confessed the forgery and were moved thereto by the defender , whereupon the writs were not improven as not being produced , but the writers and witnesses were found forgers , and the defender as user and accessory , and all were declared infamous and remitted to the council , to use an extraordinary remedy by banishment against the defender . ianuary . ▪ inter eosdem . in an improbation where one of the witnesses insert had a designation alleadged competent to more persons , all that were alleadged to be so designed that were alive were ordained to be summoned , and the hand writs of those that were dead to be produced , iune . . steuart contra mckenzie and kettlestoun . in an improbation of the minute of a tack , wherein one deponed , that he had subscribed at the defenders instigation , who told him that he caused the pursuers name to be set to the writ , and another that he did not see the pursuer subscribe , and the third who was writer of the minute , and also brother to the defender deponed , that he saw the pursuer subscribe with her own hand ; the writ was found improven and false , but there was not two witnesses instructing who was the forge● , iuly . . miller contra bothwel of gl●●corse . incident was not sustained upon an act before answer , ordaining all writs to be produced , the parties would make use of which was found only to extend to such writs as they then had , iuly . . kello contra pa●toun . in an incident four terms were allowed for proving the having of the writs by witnesses , but the terms were to be short . december . . mo●teith contra anderson . an incident was rejected , because the pursuer of the principal cause was not called thereby , and the executions suspect ▪ december . . laird of c●●neck contra lord bargeni● . incident was not sustained at the instance of any but these whose names as purshers were filled up in the bill ▪ though it contained a blank , but it was sustained against the defenders , havers of the writs , for whom a blank was left , though nor at first filled up , in respect of the custom for the last and not for the first , iuly . . creditors of wa●chtoun contra counte●s of hume . pro indiviso was not sustained to hinder removing of a relick from an house , as being a tenement indivisible , though she had a terce of it , but the heretor was found to have right to possess , yet so that if he dwelt not so himself , she should be preferred to all others , she giving like mail as others would pay , ianuary . . logan contra galbraith . infeftment of annualrent holden base , was found valide against a posterior publick infeftment , because thereon there was a decreet of poinding the ground , though it could take no effect for a long time , seing the entry to the annualrent was not till after the constituents death , february , and . . creditors of kinglassie competing . infeftment past in exchequer on an appryzing against one who was infeft by his authour not confirmed , was found not to supply or comprehend a confirmation in prejudice of another creditor , who regularly had obtained confirmation of that null seasine , in so far as might concern his base right depending thereon . ianuary . . tennents of kilchattan contra laird of kilchattan , major campbel and baillie hamiltoun . infeftments gra●uitous to a wife after she was provided by her contract of marriage , was found not to be taken away at the instance of creditors upon the act . by exception or reply , iuly . . lord loure contra lady craig . an infeftment to a wife in liferent , was sustained by her seasine adminiculat by her contract , albeit the seasine was not immediatly upon the contract , but related a bond granted for the same cause , which was not produced , ianuary . . norvil contra sunter . infeftment of warrandice lands being in the same investiture with the principal lands , and both holden base , was preferred to a posterior publick infeftment of th● same warrandice lands , though cled with long possession , and that upon an action of mails and duties upon the distresse without reduction , ianuary . . brown contra scot. an infeftment of kirklands was sustained ▪ though it bear to be upon resignation , and had not the r●ddendo●per expressum , but relative to the former infeftment , without necessity to produce any original right , seing the charter was subscribed by the abbot with consent of the convent , ianuary . . lord rentoun contra feuars of coldinghame . an infeftment to a person on her own resignation , bearing expresly her to be heir to her father , who was last infeft , the charter was found equivalent to a precept of clare constat , ianu●ry . . . inter eosdem . infeftment of the office forrestrie , with a duty out of the whole lands of an abbacy , was found valide being granted by the abbot and convent , without confirmation by the king or pope , ibidem . infeftment in warrandice granted by a husband to his wife though base holden of himself , and ex intervallo , after the principal infeftment , was found valide against a posterior publick infeftment of the same warrandice lands , as being cled with the husbands possession in the principal lands , and that there needed no declarator of distress or eviction , but a pursuit of removing , or mails and duties upon the eviction is sufficient , which cannot be excluded by a possessory iudgement upon seven years possession by the publick infeftment , unless it were seven years after the eviction , february . . forbes contra innes . an infeftment of annualrent being before a liferenters infeftment , after which there followed a corroborative security ▪ accumulating the bygone annualrents , and giving infeftment for both , which posterior security was not sustained against the liferenter , nor was it held as if it has been a poinding of the ground , february . . mclellan contra lady kilcu●bright . an infeftment to be holden of the superiour not confirmed ▪ wa● found null ▪ albeit it was only granted for security of ● wi●es ●iferent , conform to her contract of marriage , iuly ● . . gray contra ker. an infeftment of annualrent was found extinct by the annualrenters intrometting with the annualrents of the lands equivalent to the principal sum , february . . wishart contra arthur . an infeftment was found null by reply without reduction , whereby a woman was served heir to her mother in a tene●ent● in which her mother and father were infeft in conjunct ●ee , albeit she had probable ▪ ground to think her mother was feear , seing her father was found to be feear , and that she was not 〈◊〉 〈◊〉 by retour , but by precept of favour ; here seven years possession was not alleadged to give the benefite of a possessory judgement , iuly ● . . gairns contra sa●●ilands . ● infeftment vide base infeftment . inhibition was found not to reach lands acquired after it , lying in another jurisdiction , then where it was published and registrate , iuly . . smeateun contra an inhibition was found to be valide to reduce or declare against the person inhibite , not only for the lands he had the time of the inhibition , but these acquired thereafter , december . . ele●s contra keith . an inhibition of teinds was found sufficiently execute by a sheriff in that part , and not by a messenger , being direct to messengers , sheriffs in that part , which was sufficient to interrupt tacit relocation , ianuary . . earl of eglintoun contra laird of cunninghamehead . inhibition being used on a sum , was found sufficient to reduce , and that the inhibition and reduction thereon could not be purged by payment of the sum whereon it proceeded with annualrent and expenses , seing there was a supervenient appryzing upon the sum which was now expyred , february . . grant contra grant. inhibition was found to extend to rights acquired after the inhibition , but not to a wodset acquired after , and renunced upon payment , without abiding an order , albeit renunciations be by the style of the inhibitions prohibite , yet they are but as discharges of ●eretable debts or annualrents , against which inhibitions operate not , to cause them pay again , iuly . . eleis contra keith and steuart . inhibition was found to extend to lands acquired after the publication thereof lying in the shire where it was published , february . . inter eosdem . inhibition on a dependence was found to take no effect wh●re no judicial sentence followed , but a transaction on arbitriment , december . . frazar contra keith . an inhibition was found to reduce a disposition , though its date was anterior to the inhibition as to some creditors , whose names and sums were filled up in it by another hand , which was presumed to have been blank , and filled up a●ter ter inhibition , unless the contrary were proven by witnesses above exception . ianuary . . lady lucia hamiltoun contra creditors of montcastle . an inhibition was found null , because the executions thereof bear not a copy to have been left at the mercat cross where it was published , february . . naper contra gordoun of grange . inhibition of teinds was found not to give right to draw the teind without sentence , where the here●or had any colourable title , ianuary . . barefoord and bennistoun contra lord kingstoun . inhibition was found relevant to reduce the rights of creditors , albeit there was a disposition to two parties for themselves and for the behove of other creditors under-written , after which there was a large blank filled up with an other hand , in which the creditors in question were insert , which blank so filled up , was holden as after the inhibition , and a prior communing to take in these creditors , and undertaking their debts by the persons to whom the disposition was made , was not sustained to be proven by their oaths , or by the oathes of witnesses , but only by writ or oath of knowledge of the pursuer , iuly . . lady lucia hamiltoun contra boyd of pitcon and others . inhibition being pursued upon to reduce , and the pursuer offering to accept the sums in the inhibition cum omni causa , albeit there was an expyred compryzing led upon the sums , the defender craving that the pursuer would assign the sums ; the lords found that the pursuer could not be compelled to assign the same , in respect the offer was only to take satisfaction and renunce , whereby the cautioner might not be distrest inter eosdem . inhibition was found null by declarator , because the executions as they were registrate , did not bear a copy given to the party inhibite , albeit the publication at the mercat cross bear a copy affixed , and that the messenger had added upon the margent the delivery of a copy , which was found an essential requisite in the execution , and that not being registrate with the execution , the same was null and could not be supplyed , by proving by the witnesses insert , tha● a copy was truely given , against a singular successor who had bought the lands for a just price , iuly . . keith contra iohnstoun . ●interdiction against a defunct was found only to extend to the lands lying within the lurisdiction where it was published and registrate , but not to the other lands , nor to heirship moveable or other moveables , so that the heir succeeding therein is lyable notwithstanding , february . . ramsay of torbane contra mcclella● . interdiction albeit it be not sustainable by way of defense to delay a pursuit , yet it was sustained by way of reply , seing the pursuer might delay himself , ●●d that otherwise he behoved to quite the possession , and then reduce to recover it again , february . . lockhart contra kennedy . in●erdiction of a man by ●ond , bearing he should not sell nor dispone without consent of his wife on the narrative of his facility whereupon inhibition was used , was found not to stand as an interdiction , being inconsistent to bind a man to the direction of his wife , but that it stood in so far as might be interpret an obligement in the wifes own favours , for her proper interest to secure her an aliment according to her quality . february . . laird of milntoun contra lady milntoun . interdiction was found to give interest to appryzers or adjudgers from the heir of the person interdicted , to reduce any voluntary disposition thereupon , albeit they had no special title to the interdiction , but had only appryzed the lands of the person interdicted cum omni jure , and albeit there was an anterior appryzer ▪ the benefite of the interdiction was found appropriat to neither , but common to both , february . . lord saltoun contra laird of park and rothemay . interdiction was found not to have any effect as to moveables , or personal execution by may of exception without reduction , iune . . crawfoord contra hallyburtoun . interrvption of the prescription of a common pasturage was found sufficient by turning off the parties cattel , without necessity to alleadge an instrument of interruption , or keeping them off for a long time together ▪ november . . nicolson contra laird of balbirnie . interruption of a possessory judgement , hinders the beginning of a new possessory judgement by seven years possession after interruption until prescription , iuly . . montgomery contra hume . the like of decennalis & tri●nnalis possession , iune . . laird of phillorth contra lord frazer . interruption by a summonds of reduction and citation thereupon was sustained , albeit the reasons of reduction were not filled up within the . years , seing the reduction was upon minority and lesion , which was insinuate by the interest libelled ab initio . viz. that the pursuer as heir to his sister had good interest to reduce all deeds done to her enorm lesion , iuly . . earl of marischal contra leith of white●augh . interruption was sustained by a citation only at the mercat cross , proceeding upon a warr●nd to cite at the mercat cross , quia non fuit ●utus accessus , which was neither true not instructed , but pas● by bill of course amongst the common bills , and the executions did not bear a copy le●t at the cross , the pursuer adding that to the execution , iuly . . mcbrae contra lord m●d●nald . interruption was sustained by a second summonds ▪ though the first summonds should be found nul● , and though the citation was only a day before the fourty years compleat , ibidem . intimation of a right of reversion was found not necessary , where he that had the right was infe●t therein , albeit he used no diligence , and which preferred him to a posterior assigney , although redeeming first and possessing , november ● . . guthri● contra laird of sornbeg ▪ intromission being by many persons promiscuous , was found not to oblige them in solidum ▪ but equally prorata , unless a greater part were proven against them , thogh the intromission was vitious and had been a spuilzie ▪ but not pursued within three years , ianuary ● . captain strachan contra morison . intromission being proven by clear and pregnant testimonies of witnesses , though not in litiscon●esta●ion , but to remain in 〈◊〉 , no contrary probation was admitted even ex officio , to prove that others did intromet , although tacks and wodsets granted to them were produced , and the possession and intromission conform ▪ was offered to be proven , and though the intromission was more then . years since , in respect the alleadgeance was founded super jure ter●ij ▪ the alleadger shewing no right to the wodsets , or how the same were satisfied ▪ and the intromission being proven by removing the common author , and entering to the natural possession by 〈◊〉 ▪ ianuary ●● . . kello contra kin●●● . ●vs mariti was found to carry the right of a sum assigned to a wife while she was cled with ● husband ▪ without necessity to instruct that it was also intimate before his death , ianuary . . scot contra dickson . ius mariti was found not to carry the right to a provision granted by the father to the daughter ▪ bearing and annualrent , though but five per c●nt , the term of payment of the annualrent being past before the marriage , iune . . 〈◊〉 contra edgar . ius mariti being renunced ▪ was found not to take away the husbands power of ordering his family ▪ and disposing of duties appointed by the wife of her former ioynture for the use of their families joyntly , which was not found to give the wife a distinct ●●●are of it , or a power to mannage it , but to enjoy her share under the husbands mannadgement , february . . ratho and co●●ng●oun contra tennents of in●ertile and lady c●llingtoun . ius mariti was found to be a legal assignation , and being compleat with the marriage , a voluntar right by the wife of the same da●e , with a tack relating to the agreement of marriage granted by the wife to her second son● leaving nothing to her husband , was found excluded thereby , as not being intimate before the marriage , and being fraudulent in the wife , and null even against her son , though not partaker of the fraud , not being an acquirer for an onerous cause , in so far as might prejudge the husband , december . . auchin●eck contra williamson and gillespie . ivs svperveniens &c. was e●tended to any right real accrescing to the here●or by one who had right from the vsurpers , though that right be fallen , seing it was consequent on the true here●ors right , as obtaining improbation of other rights , iuly . . earl of lawderda●● contra wolmet . ius superven●ens authori accrescit successori , was found not to hold where there does not appear a full equivalent cause onerous of the successors right , or absolute warrandice , here the first right was reduced , and the new right ▪ but personal to the mails and duties till such a sum were satisfied , iuly . . dowglas and longformacus her spouse contra laird of wedderburn . ius superveniens authori accrescens successori , was found to make a gi●t of ward to the behove of the superiour accresce to the vassal , to whom he was bound in absolute warrandice , they paying a part of the expence , february . . boyd of pinkill contra tennents of cars●leu●● . ius superveniens authori accrescens successori ▪ was found to have thir effects that a tack for a small duty granted for sums of money with absolute warrandice , was not prejudged , because the ●etter was not then infeft , nor excluded by a posterior heretable disposition of the lands , albeit the authors supervenient right was procured by the acquirer of the said disposition , who infeft his author and himself , both of the same date , and who alleadged that his authors right being procured by him , could not accresce to the tack●●man in his prejudice , iune . . nei●son contra menzeis of enoch . ivs tertii was found to exclude an exception upon on assignation intimate to the debitor , and a decreet thereon , seing there was no payment , but gran●ing suspension without ▪ caution or consignation , that the parties might dispute their rights , iune . . bruce contra earl of mor●oun . ●us tertii was found not to hinder an appryzer to quarrel another appryzers right as wanting an assignation to the debt on which the appryzing proceeded , albeit he had no right from that cedent , nor any other interest but to exclude the appryzing as informal ▪ albeit that cedents heir had renued the assignation , and de●lared that there was a prior assignation by his father , and that his right was in trust , iuly . . iohnstoun of shee●s contra arnold . the kings palace of h●ly-rude-house was found to be ex●mpted from the regality of brughtoun , and in the royalty , and citations against parties residing there at the cross of edinburgh , were sustained , ianuary . . lady carnagie contra lord cranburn . knowledge though private hinders bonae fidei possessor lucrari fructus , november . ● . children of wolmet contra lady wolmet and dankeith her husband . law of scotland only regulates succession of scotsmen , as to their lands and goods in scotland , though they reside and 〈◊〉 abroad , and no nuncupative testament there can exclude the nearest of kin h●re , ianuary . . schaw contra 〈◊〉 . the law of england was found to reach the manner of probation of a bond made there by an english-man to a scots-man residing 〈◊〉 , after the st●le of england , and that payment to the cedent was probable by the cedents oath , and payment also probable by witnesses , iune . . mom●rlane contra lord melvil . yet a bond by a scots-man to an english-man in england , after the stile of scotland , registrable there , was found regulate by the law of scotland , and no● taken away by witnesses ibidem . a legacy of an heretable right was found null , though in le●ge po●stie , february . . wardlaw contra frazer of kilmundie . a legacy le●t of . merk● , and in part thereof the executors ordained to discharge or give back-bond of . merks due to the testa●rix , which bond was found to belong ●o the husband jure mariti , and that being moveable , the wife had but her half of it , yet the lords found that the executors ought to make it up● to the legata● as l●g●tum rei aliena scienter legat● , for that being a palpable principle in law , they could not excuse the wifes ignorance therein , iune ▪ . murray contra executors of rutherfoord . a legacy being special , was found not to be abated proportionally with ordinary legacies in case they exceed the deeds part , iuly . . spr●●l contra murray . a legacy of a bond in special was sustained ▪ though the executor had an assignation thereto from the defunct ▪ seing the same legacy might be made up of the 〈◊〉 gear , as being l●gatum rei alien● , seing it was presumed that the defunct remembred his own assignation , iune , . fal●●n●r contra mcd●wgal . licence to pursue was s●stained without confirmation , though granted after the principal testament was confirmed , being to a creditor , iune ● , . stevinson contra crawfoord . licence to pursue was sustained after confirmation of the principal testament and before confirmation of datives ad ommissa , february . ● . scot of cl●rkingto●n contra lady cl●rkingtoun . after li●iscontestation alleadgeances instantly verified are receivable , iune . . bruce contr● laird of str●●chan . litiscont●●●ation being made before the commissars at a parties instance as factor , it was found relevant against that party pursuing as executor creditor , being instantly verified , february . . crawfoord contra creditors of inglis . locvs penitentiae was found to have no place in an agreement to take a les● sum , it being as pact●● lib●ratori●m , though writ was not interposed , others of the parties transactors having payed conform , december . . h●pburn contra hamilt●●n of orbi●●●um . the like in restricting an annualrent to a part of the lands ●ffected , february ● . . 〈◊〉 contr● hunter and tennents of camb● . locus 〈◊〉 was found competent to one who had bought lands , though he had written that he thought he could not be able to keep the bargain and furnish the money , yet sub●oyned that he would not pass from the communing , and albeit he had received the key● of the house , seing there was neither minute nor other w●●t drawn up ●h●reupon , ianuary . . m●ntgomry of sk●lmorly contra brown. the lords sallatles , or the pensions of the king are not arrestable , conform to a letter of the kings and act of sederunt , february . . contra murray . the lords found themselve● competent to iudge the nullities of the decreets of the commission for plantation of kirk● , which wer● visible and instantly v●rified , and needed no reduction , as that a decr●et against an heretor not called was null , ianuary . . earl of roxburgh contra kinn●●r . the lords found themselves competent to iudge upon the iustice generals decreet for assythment , which hath but a civil effect for damnage , december . . innes contra forb●s of tolq●●●n● . the lords gave warrant summarly upon supplication to take the person of a bankrupt , who was unexpectedly and fraudfully fled , nov●mb●r . . creditors of masson supplicants . the lords albeit they are not iudges in causes criminal , yet they found themselves co●petent to advoca●e a criminal cause of theft , but upon the old act of parliament of king iam●s the second , from ● sheriff to the iustice general , february . ● contra sheri●● of inv●rn●ss● . the lords deposed a writer to 〈◊〉 ●igne● for inserting an article for possessing a party in letters of horning , having no warrand for the said article , ianuary ● . . zeaman contra monreiff . the lords upon a bill for horning upon excommunication allowed the party excommunicate 〈◊〉 object against the gro●nds of excommunication , who having founded upon an appeal to the king and council , the lord● having had an account from the council , that they had remitted that matter to the ●ishop , did pass the ho●●ing , iuly . . archbishop and presbytery of st. andr●w● contra pittill● . lvcrative svccessor was not inferred by a disposition and infeftment to the behove of the appearand he●r ▪ but only in so far as was lucrative 〈◊〉 valor●m , ianuary . , harper contra hume of ●landergast . lucrative successor was not inferred by a disposition by an vncle to his nephew the brother being alive , who was not found alioqui successurus , as in the case of an oye , november . ● . sc●● co●tra b●ss●wel of auchinleck . lucrative successor was inferred by an assignation of an heretable bond by ● father to his eldest son , who would have succeeded him as heir therein , and that the same was not alike with bonds of provision , wherein in father 〈◊〉 only de●itor to the son , d●c●mb●r ● . . edgar contra colvil . lucrative successor was not inferred by accepting of a tocher , yet so as if the tocher were exorbitant , both husband and wife were found lyable to the fathers creditors for what was above a competent tocher , december . . burnet contra lepers . life being presumed , was taken off by the parties being ●● . years out of the coun●rey , and commo●ly ●olden an● 〈…〉 there wa● also a letter produced by a 〈◊〉 in the wa● ▪ bearing that the party was dead , february . . . lowry contra drummond . liferenters of an annuairent wa● found iyable for publick burden with the 〈◊〉 , albeit the act ● ▪ thereanent was rescinded as being due in jure , iune . ● fleming contra gillies . a li●erenter being infeft in a liferent of lands cum m●ll●ndini● , was found to have right to a miln builded thereafter upon the land by her husband , but not to the abstracted multures of his lands , except the liferent lands , february . . lady otter contra laird of otter . a liferenter being by her contract ●nfeft in lands , obliged to be worth such a rent besides teinds and fe●-duties , or at her option , the heir was obliged to accept a tack of the lands for the like sum of free rent ( by free rent ) was not only understood free of feu and teind duty , as is exprest in the first part of the clause , but free of the ordinary publick burdens , viz. taxation , but not of extraordinary publick burdens , such as cess , but in so far as the tennents relieved the heretors , february , . . countess of cassils contra earl of cas●ils . a liferenter of a miln surviving martinmas , her executors were found to have right to the whole years ●ent of the mil●● , in the same way as if it had been ferm of lands , and that the legal terms thereof were whi●sunday and martinmass , albeit the milns rent was payable in money , and that the first conventional terms payment thereof was at candlesmass after the separation of each cropt , and the second , whitsonday thereafter , and that the miln rent was not to be accompted as house-mails , iuly , . guthri● contra laird of mck●rstoun . a liferenter was found to have right to the cro●t of lands laboured by her , without payment of any rent therefore , albe●t she dyed in april , and neither survived whitsonday nor mart●mass● iuly . . inter cosdem . lifrent escheat of a wodsetter affects the sum of the wodset , which being consigned and the lands redeemed was ordained to be given up to be imployed de novo to the redeemer in fee , and to the donatar in liferent , iune . . tailzifer contr● maxiou● and cunning●ame . liferent escheat is compleat by rebellion year and day unrelaxed , and no appryzing led thereafter will pre●udge the same , albeit it be before declarator ibid●m . liferent escheat was found preferable to a base infeftment , anterior to the rebellion , not having attained possession in cursu r●b●llionis february . . mil●● contra clerkson . liferent escheat was excluded by the superiou●● consent to a wodset of the rebels land of the same date with the donatars gift , seing the wodsetter was in possession , and needed no declarator , iune . . scot contra langtoun . the liferent eschea● of a vassal was found 〈◊〉 fall and affect the ground against the appryzer thereof , and that the charge ●gainst the superiour did not so denude the vassal as to evacuat his liferent , without disputing whether the superiour was in the fault in not obeying the charge , iune ● . . d●wglas contra li●k . liferent ●scheat of an annualrenter was found to exclude an appryzer of the annualrent , whereupon there was neither infeftment or lawful charge ▪ as to the years post cursum r●b●llionis , february . . lord iustice clerk contra fair●olm . the lyon was found competent iudge to the deprivation of messengers , and to the penalties contained in their bonds of caution , both against themselves and their cau●ioners , but not as to the dam●●ge of parti●s , either as to the messenger or cautioner , february . ● . g●●●son contra m●●lrey messenger . the same iune . ● . h●ri●●● contra c●rb●● . magistrates were found lyable for the debts of a rebel incarcerate by act of warding escaping , without necessi●y of calling that person against whom there was de●reet standing , february . . b●nnar contra fouli● . magistrates were found lyable for the debt of a rebel escaping , though in the time of richard the vsurper , being before any other authority was set up , and was not e●●ded because he escaped out at the roo● of the tolbooth and brok● it , that being in day light , november ● . . hay contra magistrates of elgin . a magistrate , viz. a sheriff pursued for the debt of a rebel escaping , was assoilzied because the rebel escaped vi 〈◊〉 , having wounded these who assisted the sherist , d●cember . . wilson contra hum● of linthil . magistrates were not found lyable for the debt of a rebel escaping vi ma●or● , though it was in the night , and that the prison door was opened to let in the rebels supper at the ordinary time , ianuary . . baird contra magistrates of elgin . magistrates were found lyable for the debt of a rebel escaping though he had taken the benefite of the act of debitor and creditor , seing at his incarceration he shew not his attest of taking thereof and paying his annualrent conform , february . . 〈◊〉 contra magistrates of elgin . magistra●es were ●ound lib●ra●e ●●m the deb●● of a rebel whom they were charged to take , being charged in the night , and while they were ordering the quarters of the army , and offering the towns officers to concur , and now offering to put the rebel in prison in as good case as he was then , which was sustained joyntly , albeit the rebel was in the same house , and did deforce the messenger , wherein some of the town officers were assistant , but without warrand , iune ● . . antrobus contra anderson provost of glasgow . a magistrate elected bailli● of a burgh , charged on general letters to accept and exerce the office , was liberate in respect of the act of burrows , that none shall continue in office above two years , which time he had been baillie , the reason was found relevant ; ianuary . . wilson contra magistrates of queensferry . magistrates suffering a rebel to escape , and being decerned for the debt thereupon and paying , and taking assignation to the debt , were found to have no reco●●se against the rebels ca●tioners , who if they had been distressed by the creditors , would have had recourse against the magistrates , who were lyable not only of the creditor , but to all others having interest ex damno & delicto , and they as cautioners were interessed that the principal should not escape , seing his continuing might obtain their liberation by his payment , but the ca●e was not debated whether the magistra●e might not pursue the principal debitor who ●●caped and was chiefly in delicto , and they but acces●ory , ianuary . . magistrates of contra the earl of find●atour . magistrates of a burgh were decerned for the debt of a rebel escaping , though they were not magistrates the time of his escape , and without necessity to discuss these who were then magistrates as being in the fault , but prejudice to the town and p●esent magistrates , to pursue them ●s accords , ianuary . . paplaw contra town of edinburgh . magistrates of a burgh of regality were found lyable for a sum where they refused to receive a party taken by caption , albeit they had no provost nor common good , no● were not in use to ●ncarcerate , in respect of the act . cap. . here the burgh had a convenient prison , and the rebel dwelt in their burgh , iuly . . hamiltoun contra callender . magistrates were found lyable for the debt of a rebel whom they were required to take , and did not , being within their iurisdiction and the house designed , and they charged by the messenger , who offered to go in before them , which they were found obliged instantly to do , without waiting to conveen the neighbours , unless they had been keeped out , or repusled v● major● , iuly . . farquhar contra magistrates of elg●● . magistrates of the head burgh of a steuartrie were found lyable for the debt of a rebel escaping out of the prison , without disputing whether burghs within steuartries , not being royal burrows , were obliged to receive prisoners ▪ seing they had actually received this prisoner , but their keeping him in a private house ten dayes , while a treaty was continued with the creditor , was found not to infer disobedience of the charge , or payment of the debt , iune . . cheap contra magistrates of faulkland . magistrates were not found lyable for the debt of a rebel escaping , who was arrested in their tolbooth , but the arrestment was not formal , and whereas it bear that upon caption , the messenger came to the tolbooth and comm●nded the prisoner to continue in prison , as being arrested for that debt , and that in presence of the iaylour , and that intimation was made to the magistrates , seing the intimation to the magistrates was altogether improven , and the arrestment in presence of the iaylour contained three witnesses whereof one affirmed , and the other denyed , and a third was dead , and the messenger was then excommunicate for crimes , iune . . hay contra magistrates of elgin . magistrates were found lyable for the debt of a rebel escaping out of their tolbooth , albeit the tolbooth had ●our locked doors without one another , and that the rebel had gotten in some masons tools , and broken up all the doors in the night , seing they had not chains , and bonds locked upon the ou●er sides of the doors , to which the rebel could not reac● , albeit their custom was very ancient to put on cat-bonds only upon prisoners imprisoned for crimes , february . . will contra town of kirkald●● . magistrates were not found lyable for the debt of a person incarcerate in their tolbooth , whom they had suffered to go free up and down their streets several times , whereupon the creditor took instruments and protestation , seing the suffering the prisoner to go out was necessary to mendicat his bread , being altogether indigent , and that he went once to the burial of a child of his own , and that he continued in prison and died there , february . . bain contra baillies of culross . magistrates were not found lyable for the debt of a rebel whom they suffered to come out of prison with a guard to go to the kirk or to the fields for health , or any other necessary cause , as to time past , in regard of their common custome so to do , but that in time coming they should let none go out except upon great hazard by sickness , and upon testificates upon oath , and when other application could not sa●ely and timeously be made to the council or session , iune . . town of breichen contra town of dundee . mandat or warrand of a servant taking off furniture from a marchand for his master , and giving his recept , and bearing that he had received ▪ such furniture in name of his master and for his use , was found not to oblige the se●vant to pay , nor yet to instruct that he had warrand , but t●e warrand was presumed as known to the merchant , unless it were proven that the servant did otherwayes imploy the furnishing than to his masters use , and specially in the case where the master was dead long ago , november . . how●eson contra cockburn . vide command . vide wi●e , february . . paterson contra pringle . in mails and dvties the not calling of the de●enders master was not ●ound relevant as in a removing , nor may the tennents alleadge peremptorly on their masters right , which is jus terti● , but they should have intimate to him to compear for himself , and they may yet suspend on double poynding , and call the party and their master , iune . . hume contra in the mails and duties of a house , the damnage sustained by the tennent , by the fall of a neighbouring house was found to be allowed , ianuary . . hamiltoun contra maintainance of august and september . being destinate for the provision of the army , and assigned to these who advanced the provisions , they were not found to be excluded by any subsequent quarterings , iuly . . rae contra heretors of clackmannan . vide devastation , here singular successours were not liberate , iuly . . inter eosdem . the maintainance appointed to be uplifted by bogie by the act of parliament . which excepts singular successors who bought the lands , was found not to extend to an appearand heir who brooks by an appryzing , which as to him is redeemable within ten years for what he payed for it , here it was not alleaged that the payed sums equivalent to the worth february . . weyms contra laird of t●lquhon . renewed ianuary . . inter eosdem . the maintainance . to be up●●fted by bogie , was found not to extend to these who had exemption upon consideration of burning by the king and parliament , ▪ though that parliament was rescinded ; and though all exemptions were excluded by bogies commission , seing by the act rescissory private rights done by that authority were excepted , iuly . . weyms contra campbel of edenample . maintainance for the year . was found to burden lands though they were now in the ●ands of singular successo●s , who had acquired the time of the act , ia●uary . . weyms contra frazer of to●lie . marriage pursued by a donatar was not excluded because the pursuer instructed not that the lands held of that superiour , nor held ward , seing he disclaimed not , nor by the superiours subsc●ibing witness in the vassals contract of marriage after the donatars gift ; it was also found that the marriage might be pursued both realiter & personaliter against the vassal to pay , february . . arbuthnet of fiddes contra keith . marriage being dec●rned by the commissar to be solemnized upon a bond granted by a man to a woman , bearing a child to be gotten under promise of marriage , and it being alleadged that the woman had been unchast since , which as it would annul , so much more hinde● the solemnization of the marriage , and it being alleadged that the child born after was presumed to be the same man's who got the first , and so obliged to solemnize the marriage , the lords found the presumption held not where there was no formal marriage , and so the woman behoved to prove the second child to be this mans , ianuary . . barclay contra baptie . marriage of an heir was ●ound due as to the single avail , albeit the heir was married before his predecessors death by a fraudulent precipitation to exclude the superior from the marriage , he being married when his predecessor was moribundus without previous treaty or proclamation , the predecessor dying within some ●ew ●ays , and showing no other sufficient cause of the said precipitation but to exclude the superiour ; here were adduced the testimonies of skeins explications upon quonia● atachiamenta de maritagio , bearing that this was praxis for● in his time , and expressing three decisions thereof , february . . lord thesau●er and lord advocat contra lord colv●● . marriage , vide contract . vide clause , december . . young contra buchannan . melioration of a liferenters house by her was ●ound to oblige the feear after her death in quantum itucr●s est by a better rent , february . . iack contra pollock and rutherfoord . in merchants accompts taken off by persons intrusted , and converted to the persons use , was ●ound to make them lyable to the merchand , unless the party prove that they p●yed the price to the party intrusted , but if they knew the per●on intrusted took off the ware , not on their own credite and name but the constituents and from what merchant , then they should have called for the merchants discharge , else though they payed the person instrusted if they payed not the merchant , it is on their peril who knew the merchants interest , but not so when they payed and knew not who was merchant , or in whose name and credit the ware was taken off , february . . bruce merchant contra laird and lady stanhope . metvs cavsa was found relevant thus , that a wife shew her unwillingness at the subscribing by the witnesses insert and other witnesses , and that the husband was a fierce man accustomed to be●t her , and that he did particularly threaten her to consent to quite a part of her liferent , iune . . woodhead contra nairn . metus was sustained to take away a bond given for fear of caption , the party being sick when he was taken prisoner , iune . . maire contra steuart of shambelly . a miln being built by a husband upon his wifes liferent lands , wherein she was infeft cum ●olendinis in the ten●●dar , was found to belong to the wife for her liferent u●e , but not any thirle mul●ures of others of the defuncts lands , february . . laird of otter contra a miln once going . hou●es may not be de●olished as novum opus , via fact● being a common-good ; but by civil in●erruption & via jur●s , though it was but a walk-miln , iune . . hay of struie contra fe●ers . a miln was found to be in the same condition as land in relation to heirs and executors , liferenter and fe●ar , so that the he●eto● surviving whitsonday , his executor hath the half , and surviving marti●mas the whole rent , though the conventional terms were candlesmas for the first , and whitsonday for the second term , the entry being at whitsonday , iuly . ▪ guthrie contra mckerstoun . a ministers stipend by decreet of locality was found not to be understood the measure of linli●hgow , but the mea●ure of the shire , where the measure was indefinite , and the stipend not e●ght full chalders of victual , and was usually payed by the measu●e of the shire . years before , iune . , minister of dalrymple contra earl of cas●il● . a minor was not restored , who gav● a bond bearing expresly he was major , unless it were proven the minor knew he was minor , or did induce him to insert that clause , or that by inspection he might have known him minor , not being near majority , february . . kennedie of auch●iford●● contra weir . a minor during his minority having obtai●ed decreet against his curator to renunce his office , the curator was not ●ound liberate thereby , even of omissions after the decreet , but it being alleadged that the minor was irregular , and had forcibly intrometted with his rents ; the same was sustained pro tanto , iuly . . scot of broad-meadows contra scot of thirlestoun . a minors bond was found null by exception , because it was not with his fathers consent as lawful administr●tor to him , unless it did appear he had an estate of his own and mannaged it apart , december . . leslie contra sinclar of dun. a minors disposition of land was found v●lide , unless lesion appeared , though it wanted the authority of a iudge , ●hich is only requisite to the dispositions of pupils ▪ and though the minor had no curators , december . . thomson contra stevinson . a minor was restored though he wai●ed on the tolbooth as a student at law , but was intertained by his father , and though the father subscribed the same writ , seing the son subscribed as cautioner for him , and so his authorizing was to his own behove , dec●mber . . mckenzei contra fairholm . a minors bond having curators not authorized by them , was found null and extended to a son , and a father as lawful administrator , as curator to him , and that his sons subscribing with him as cautioner for him or with him for any other principal conjunctly and severally , was not thereby sufficiently auth●rized , neither as cautioner for his father , nor the other ●orr●i debendi , his obligation as to both being to the fathers behove , as giving his father thereby relief , and so the son could not be authorized by the father to the fathers own behove , iuly . . inter eosdem . a mi●or having ▪ transacted with consent of his curators for a right and after his majority , having received the bonds delivered to the creditors upon the transaction , and having discharged the curators as having faithfully acted , and having in the curators accompts reserved reduction of that transaction upon minority and lesion which then was raised , was not found thereby excluded from the reduction , but 〈◊〉 being doubtful whether that reservation was in the accompt when it was first subscribed , the writer and witnesses were appointed to be examined ex officio there●nent , ianuary . . car●● contra cunninghame . minor non tenetvr placitare ▪ was found not relevant in a recognition , february . ● . lady carnagy con●ra lord cranburn . minor non tenetur placitare super heredita●● pa●erna was found to have no place where the father had only a disposition and was not infeft , but if his infef●ment were instructed , the minor was found not obliged to produce ●a●der , or to dispute the reason of reduction , albeit it was not upon priority or solemnities of the rights , but super dolo aut me●● , yet the pursuer was admitted to produce witnesses for any point of fact to remain in re●entis , least they might dye medio temp●re , ianuary . . kello contra pringle and the laird of w●dderburn . minor non tenetur placitare was found not to defend a liferenter , whom the minor feear was obliged to warrand , and that her right being reduced , did not accresce to the minor feear , nor did his ●ollerance defend her possession , iuly . . borthwick contra skein . minor non tenetur placitare was found valide , though the reduction was against the fathers authors right as not being infeft , ianuary . . chapman contra w●ite . minor non tenetur placitare super har●d●ta●● paterna , was found not relevant to stop a process of recognition of ward bands upon the vassals alienation of the major part thereof , although the sub●vassal who was also cited was minor , seing the vassal who was major ▪ his right was principally in question , and the sub-vassal minor , his right fell in consequence , february . . cochran contra minority and lesion was found relevant to reduce a womans contract of marriage in so far as it came short of the ordinary conditions in ●avours of such persons in their con●racts of marriage , which was not ●ound to annul the provisions of the lands and sums to the heirs of the marriage , which failing the mans heirs , nor yet to make any portion thereof to return to the wife in that case , as not being ordinary , but only to rectifie the same as to the wifes loynture , november . . m●gil contra ruthven of gairn . minority and lesion was found only competent by reduction , and not by ex●eption or suspens●on , iune . . ky●e contra sea●oun . minority and lesion was not ●lided , because the money was delivered to pretended curators , who were lyable to the minor without di●cussing the curators first , seing they were not in this process , and the minor hath his option to reduce against the creditor , or pursue his curators and intrometters , iuly . . lord blantire contra walkinshaw . minority and les●on being insisted in by reduction and majority being alleadged in defense , neither party was preferred in probation , but witnesses allowed hinc inde , february ▪ . ●arqu●ar of towli● contra gordou● . minority and lesion was sustained to reduce a disposition by a wife to her husbands brother , though it had been to her husbands behove in contemplation of the marriage , seing there was no remuneratory provision on the husbands part , and that the legal terce was not enough , but that the husband ought to have acquiesced in his jus mariti , as well as the wife in ●er terce , or both had mutual provisions , here the wife was carried away and married without her freinds consent , iuly . . earl of marischal contra keith of whitehaugh . a minvte disponing lands with part and pertinent , was found to be extended ●o , as to express common pasturage in a muire possessed therewith the time of the bargain , february . . borthwick contra lord borthwick . a minute was ex●ended by the witnesses insert , as to the manner of payment , which was not so exprest therein , ianuary . . ch●ap contra philip. a missive letter by a merchant to a factor to send home wine on such another factors credite , with whom the writer not being acquaint , but upon the factors account , was found to oblige the writer and not that third party , unless he had accepted , neither then did it liberate the writer , but the third party was expromissor , in this the lords would not take examination of merchants what such letters did import , february . . pallat factor at burdeux contra fairholm . a missive letter was found to instruct an accompt of . pound sterling received and furniture sent , albeit it was not holograph nor amongst merchants , but betwixt noble persons , being for ●urniture sent from london to the writer of the letter , by the other noble person , being then at london , to whom it was written , the said receiver of the letter making faith that this was the true letter that he received from the other , february . . earl of northesk ●ntra viscount of stormont . missive vide clause , iuly . . wauchop contra laird of niddrie , &c. a mother was found obliged by the law to aliment her children according to her means , they having no means of their own , or any person representing their father able to aliment them in their family , but that the mother was only ●bliged to aliment them in her family , d●d not to pay modification for their education out of her family ▪ albeit they were ●oble persons and the mother had miscarried , february . . children of the earl of buchan ▪ contra countess of buchan . a mother taking a bond to her self in liferent , and to her children in fee ▪ was ●ound not to have powe● to alter or assign that bond to another , as being presumed to be made by her own means , but the same was presumed to be the childrens means● by their father , though their mother was not tu●rix or curatrix to them , seing the bond did not express it to be the mothers own means , no● reserved a power to the mo●●er to dispone , february . . dundas contra the lairds of ardros● and ●ouch . movea●●es being craved to be restored as being the pursuers , the libel was not found relevant , unless he condescended quomodo des●t ●osildire , and instruct the same , and he having condescended that it was by loan , it was found probable by witnesses , 〈◊〉 . . scot contra fletcher . in moveables possession presumes a title , without necess●ty to instruct the possessors authors right● without distinction of ordinary moveables or lewels , unless the presump●ion be elided by ●●onger probation , that such iewels could not have belonged to him that impigno●ate the same , who neither had them as a merchand nor leweler , neither did nor could make use of them for his own wearing ▪ dec●mber . . ramsay contra wilson . here the first author impignorat them by writ , and immediatly ●ent abroad . nearest of kin surviving the de●unct , transmit their share of the deads part to their ●xecutors , and it doth not accres●o●●● the rest of the nearest of kin or to their executors , february ● . ● . ●ell contra wilkie . in none●try the full rent is due from the citation in the general de●●arator , and not from the time of the sentence only 〈◊〉 , and accordingly the special declarator was sustained ▪ iuly . . harper contra his vassals idem . iune . . faw contra lord balmerin● and laird pourie . noviter v●niens ad not itiam was sustained to reduce the circumduction of a term , upon the suspenders making faith that the writs now produced to prove what was then ●o have been proven , were found out by her , since the term was circumduced , iune . . norvil contra suntar . oath of a wife never to come in the contrary of her bond granted 〈…〉 , was found not to hinder her to alleadge that the bond was null ipso jure , february . . contra 〈◊〉 . oath of parties being taken , and they deponing upon the tenor of a writ and assoilzied thereupon , were decerned thereafter upon production of the same writ , as not being contrary to the oath ▪ but being only in so far as the deponent remembred the tenor of the writ , november . . campbel contra doctor 〈◊〉 . the oa●h of an author was found competent against a singular successor in an appryzing , for proving the ●ame satified by intromission , seing before this defenders right the matter was litigious , and an act extracted , referring the intromission to that authors oath , iuly . . sharp contra glen . oath of calvmnie was found competent as to one point of a libel , where the rest was not to be proven by oath , but in respect there could be no evident difference as to that point betwixt the oath of calumny and verity , and that the point was no ways probable but by the oath of verity , the oath of calumny thereanent was refused , february . . 〈◊〉 contra 〈◊〉 . oath ex officio ●nent having of writs , was found to be given , if at any time the deponent had them , and how he put them away , that it might appear if fraudulently , but not to depone if he knew who had them , as not being proper , november ● . . children and creditors of bryson . oath in lite ● was admitted for proving of ware in a pack given in custody , where the keeper opened the same , though he made inventary before witnesses by a baillies warrant ▪ ianuary . . packman contra bran. oath qvalified was not sustained importing a compensation , yet the ●ame was admitted to be proven as an exception at advising of the cause , december . . lermont contra r●ssel . an obligation by three persons to cause a minor releave a sum not bearing conjunctly and severally , was found not to oblige every one in solidum , as being for an indivisible fact , but resulting in a divisible sum , iuly . . dennistoun contra semple of fulwood . offer of the remander of a sum not being special and not being consigned , was found not to purge a failzie , december . . deuar contra countess of murray . offer conditional to pay a su● for a mother on condition it were at such a time and place , and were made known whether or not it were accepted , was found not obligatory after the mothers death , unless the condition had been fulfilled then 〈◊〉 , iune ▪ . . allan contra colner . offer of caution to a wodsetter that he ought to quite possession , or restrict to the annualrent , was sustained though made at the parties dwelling house , when he was out of the countrey , seing the act of parliament did not require that offer to be by instrument ; and though the instrument of offer did not bear a procuratory to him that made the offer , the said procuratory being now produced , iune . . lord lovi● contra lord mcdonald . the office of a commissar clerk was found no● to be annulled by his absence for a time out of the countrey , and being denunced sine crimine , february . , archbishop of glasgow contra logan . an office of a common servant , viz. a town clerk being given ad vitam ▪ was found to imply a tacite condition to be also ad culpam , and that such a fault did resolve the same , as was of knowledge and consequence , february . . town of edinburgh contra thomson . overse●rs were found lyable for nothing , if they intrometted not , ianuary . . swintoun contra norman . part and pertinent of lands disponed by a minute , was found to extend to a common pa●●urage in a muire possessed as pertinent of the land in the bargain , and that the writes upon the extension of the minute , ought to bear the ●ame expresly , february , . borthwick contra lord borthwick . part and pertinent cum pascuis & pasturn in a charter given by the king to the feuars of his property , was found to carry common pasturage in the muire of the barony , which being now possessed . years by the feuars of the barony , is presumed to have been so at the time of the charter , being past memory , and that interruptions of any other right exclusive of this common pasturage , was sufficient to preserve the same , february ● . laird of haining contra tow● of selkirk . ●art and pertinent was not excluded , albeit an alleadgeance was proponed on an old se●sine of the lands in question , as being separatum tenementum , the seasine being ●ound null , and no title for prescription , february . . earl of argile contra laird of mcnauchtoun . all parties having interest not necessary to be cited at the m●r●at cross in the declarator of the expyring of a feu ob non solutum 〈◊〉 , though the summons bear warrand for the citation , december . . ea●l . of s●therland contra gordoun . parioide doth not infer treason as against the act of parliament against murder under trust , which is meaned by paction , in re●pect of the special act of parliament against paricide , which doth not exclude the paricides collaterals , but him and his descendents from the succession of the slain , which therefore cannot belong to the fisk , ianuary . . zeaman contra oliphant . passing from a reason of suspension pro loco & tempore , was found not to hinder the proponing of the same against that decreet , and against an appryzing thereon , the matter being yet illiquid , and a singular successor in the appryzing ▪ iune . . laird of tulli●llan contra 〈◊〉 and bra●foord . passing from a reason of compensation , and taking up a writ for instructing thereof , was admitted before extracting of a decreet , though the writ was long in the chargers hand , not being judicially given up to him , and that another emergent exception might now be admitted , iuly . . lord balmerino contra the creditors of dick. payment made before the hand , was found relevant against a singular successor , the kings dona●ar of forefa●lture , because it was but of one term , and so accustomed by the baro●y to pay at the entry , and be free at the ●sh , ianuary . . earl of laud●●dail contra tennents of swintoun . payment made b●na fide to bai●ns of a sum by a disponer in ●avours of these bairns , was sustained though after reduction raised , unless a reason had been libelled against that which was ordained to be payed to bairns ▪ and shown before payment , iuly . . m●ntgomerie of mack●ichill contra wallace . payment made bona fide to a procurator , was thought to be relevant , though the procuratory should be improven , if therein there did appear no ground suspition to have put the debitor in ma●● fide , february . ● . elphingstoun of selms contra lord rollo and laird of niddrie . payment made by heretors to ministers of their stipends during the time they preached and before any process against them , was found to liberate the heretors , notwithstanding they were outed by the act of parliament anent these ministe●s who entered since the year ▪ and had not gotten presentation and collation , whereunto the heretors ●e●e not obliged t● inquire , seing the ministers were suffered to preach without challenge , february . . collector of the vacant stipends contra the heretors of may●ole and gi●van . payment made b●na fide was found not to extend to payment made by a tennent before the time , nor to a sub-tenent to the tennent before the term , february . . lady traquair contra howa●son . payment made of a decreet by giving bond of borrowed money , and taking discharges of the decreet , was found no homologa●ion or transaction , but that after the party might quarrel both decreet and bond in consequence , unless abatement were gotten upon transaction of the sum in the decreet , seing it was not voluntarly done but upon caption , i●ly . . rew contra houstoun . payment of the rent of a shop was sustained , being a ta●k set by a father to a tennent for the annualrent of a sum , though the father had given a right to his son , reserving his own liferent , seing he set the tack as feear , and though the son after his death warned only by chalking the door , without any other intimation , the tacks-man was liberate of the rent for his annualrent , as bonae fidei possessor by his tack , till he was cited on the sons right , february . . hamiltoun contra harper . payment inferred by consecutive discharges of all years preceeding , was found not effectual where a preceeding year was acknowledged ●esting by these , who obtained the discharge , and where the giver thereof had given a warrand to a third party to li●t that year to his own behove , albeit that was not intimate to the tennents , february . . cockburn and gilespie her husband contra st●uar● and the tennents of lintoun . payment being proponed by one pursued as representing , if he deny not the passive titles , the pursuer is liberate from proving thereof , november . . scot of hartwoodmires supplicant . payment of a tocher contracted by a wife for her self , was inferred by presumption that she lived twenty two years , and that in his testament he acknowledged his tocher was payed , which was not esteemed as legatum liberatio●●s to affect the deads part only , but with the presumption did import an absolute discharge , february . . scot contra dods . a pension secular was ●ound only as an assignation to mails and duties , not to affect the ground against singular successors , albeit it bear to be payed out of the readiest fruits of such lands , and was cled with possession , december . . clapp●rtoun contra laird of ed●em . perril of a hous● sold , and thereafter burnt was found to ●e the buyers , though the disposition bear an obligement to put the buyer in possession ▪ seing he voluntarly took possession and re-built the house , and payed all the price , december . . hunter contra wilson . personal obligations of appryzers to communicat their appryzings , are not effectual against the appryzers singular suc●essors , iuly . . telzifer contra max●oun and cunningh●me . personal provision by a back-bond of the same date with a feu , bearing that the feuar might renunce the feu when he pleased , was found valide against the singular successor of the granter of the feu , seing it did not alter any thing of the real right of the feu , but only the personal obligation in the feudal contract , obliging the feuer and his heirs to pay the feu-duty ▪ yearly , february . . brown contra sibbald . possession of stollen goods by using them in the pleugh four moneths , was found not to secure the possessors , but that they might be recovered summarly by the sheriffs warrand without citation , but if the possessors did acquire right by an onerous title , they were not to be restored , but prejudice to the owner to recover the same by process , yet so as the sheriffs warrand did exclude from violent profites , iuly . . strachan● contra gordouns . possessor bonae fidei facit fructus consumptos suos , was found not to extend to a mother , who by several presumptions appeared to have known the right of her children , wherein private knowledge was enough , november . . children of wolmet contra lady wolmet and dankeith her husband . possessor bon● fidei , &c. albeit his authors right was reduced in parliament , whereto he having but a tack needed not be called , and so he had no standing title , his tack falling in consequence , seing nothing was done to interrupt his possession , iuly . . dowglas and sinclar her spouse contra laird of wedderburn . possessor bon● fidei , &c. was extended to one who had a second right to a reversion , and had first redeemed and possessed thereby , and was not found lyable to the other pursuing upon his prior right as to bygones before citation , although he had not acquired the benefite of a possessory judgement by possessing . years , november . . guthrie contra laird of sornbeg . possessor bon● fidei , &c. was found not to take effect to one who had obtained a decreet to removing , for not payment of ●he duties in absence , and produced not his infeftment , but 〈◊〉 infef●ment of another person of that same name , which being a fraudulent deed , he could not thereby have a title cum bona fid● , iune . . neilson contra menzies of knock. a possessory ●ivdgement was not sustained upon five or six years possession , or less then seven years , december . . hamiltoun contra tennents of vppersheils and rowan . a possessory judgement was found not competent upon seven years after interruption , but that the interruption continued till prescription , iuly . . montgomerie contra hume . here the interruption was by a decreet of removing , which gave the other civil possession . a possessory judgement was not admitted against an annualrent , which is debitum fundi , iune . . adamf●nt contra lord balmerino . a possessory judgement was found not competent to a wife by her husbands possession , against another deriving right from him , the wifes infeftment not being onero●s , or upon her contract , but gratuitous , december . . lady craig and green-head her husband contra lord loure . possessory judgement is not competent upon possession of warrandice lands against recourse upon eviction , which may be without reduction , ianuary . . brown contra sco● . a possessory ludgement on . years possession was found valide to a party infeft , though entering by the conjunct fe●ar as heir to her who was not f●●ar but li●erenter , february . . cranstoun contra wilkison . a possessory judgement was not found competent upon seven years possession , by vertue of an appryzing , on which there neither followed infeftment nor charge against the superiour to infeft , february . . iohnstoun contra erskin . a possessory judgement upon a publick infeftment , and seven years possession , was ●ound not relevant against a pursuit for recourse upon eviction by infeftment of warrandice , unlesse there were seven years possession after the eviction , february . . forbes contra i●nes . a possessory iudgement was sustained upon seven years possession peaceably before intenting of the cause , albeit there was interruption by citation before these seven years , and albeit there was ●urceals of lustice during the last seven years , and that the pursuer was minor , iuly . ● . earl of wintonn contra gordoun of letter●urry . a possessory iudgement was sustained on an infeftment on a voluntary disposition against an appryzer , who had denunced the lands before that disposition , who●e denunciation was not found to render the matter so litigious as to exclude a possessory judgement by seven years uninterrupted possession thereafter , iuly . . steuart contra murrayes . poynding of the grovnd for an annualrent de●●rned was found to take effect , not only against the master and tennents therein called , but all others coming in after , though singular suncessors , and not to be abated by vastation as a feu-duty , and to have access against the whole , or any part of the ground , though now belonging to several heretors , but so as the payer should have assignation to the debt , and a time to recover relief o●● the rest , neither was the decreet excluded by , or . years possession of a singular successor as a possessory judgement , iune . . adamsons contra lord balmerino . poinding of the ground was found competent against the apparent heir of the granter of the annualrent , without a charge to enter heir , ianuary . . olephant contra hamiltoun . poinding of the ground was sustained on an annualrent , although there was no possession thereon for above seven years without declarator , and though a posterior appryzer was in possession more than seven years , which was not found to give a possessory judgement against a prior annualrent , ianuary . . old lady clerkingtoun and the young lady . a precept was ●ound to oblige the granter thereof , it not being answered , albeit it did not bear value received , seing it was upon an other precept , direct to the drawer of the last precept , and so was an acceptance , ianuary . . findlason contra lord cowper . a precept of seasine upon obedience was found not to hinder the reduction nor improbation , nor to import acknowledgement of the defenders right , february . laird of mochrome contra laird of martoun , ariol and others . premonition by a procurator was sustained , though it bear not the procuratory shown , seing it bear not it was called for , if it now be shown , or proving by the other parties oath that a procuratory was shown , ianuary . . veatch contra lyel of bassendoun . prescription was found only to run from the term of payment of bonds not from the date , and that the interruption by citation upon the first summons is sufficient to interrupt , though there was no continuation or second summons , february , . butter contra gray . prescription on . years silence was found not effectual against a wife pursuing the cautioner for her ●u●band in her contract of marriage , obliging to imploy a sum to her in liferent , quia non val●bat agere , during her husbands life , who would not concur , and therefore the prescription was compted from his death and yet the other obligement in the same contract , in favours of the husband obliging the wifes father to pay the tocher , was found to prescribe from the date , iuly . . mckie contra steuart . prescription was ●ound interrupted by a citation , albeit not so legal but that the defender might have excluded the pursuit upon informality , especially being in re antiqua , and where the custom of the regality did not appear , novem. . . white contra horn. prescription was ●ound ne●er to extend to exclude any person to serve themselves to any of their predecessors , if no other hath been served before , in which case the retoure cannot be quarrelled , but within . years , if deduced after the year . or if before , then it must be quarrelled within fourty years , or else it must prescribe by the general act of prescription , november . . young contra iohnstouns . prescription by not paying teind for fourty years , was found not to take away the right of the teind totally , having been once payed , but only as to years prec●eding the fourty years , february . . earl of pa●mure contra parochioners . prescription non c●rcit contra non valentem agere , which is understood of actions , which might have attained possession , and not of declarators or reductions , february last . earl of lauderdail contra viscount of oxenfoord . prescription was found interrupted by a decreet of poynding the ground , though therein the heretor was not called , iuly . . sinclar contra laird of h●rdmanstoun . prescription of an oblation of a cautioner , bound conjunctly and severally with the principal , was not inferred by the creditors not getting payment , or pursuing the coutioner for fourty years , which did not presume he past from him , but his getting annualrent from the principal within the fourty years , was ●ound sufficient to preserve the bond as to both , december . . gairns contra arthure . prescription of a tack of teinds not cled with possession for more than . years from its date , was ●ound not to annul that tack , but as to years before possession , and a prorogation of the tack , was sustained as to times coming , ianuary . . earl of athole contra laird of strowan . prescription was not sustained upon . years uninterrupted possession , and one single seasine as the title of prescription , unless according to the terms of the act of parliament singular successors produce as their title , not only a seasine but a charter or precept as the warrand thereof , and that universal successors produce one or more seasines upon retoures or precepts or clare constat continuing and standing together by the space of fourty years ; which standing together was not understood of standing unreduced , but standing not fallen in the hands of the superior by noi●-entry , so that either the obtainer of the seasine behoved to live after the ●ame and possess . years , in which case one seasine were sufficient ; or if he dyed within the fourty years , his heirs possession were not sufficient by that seasine , b●t behoved to be renewed , and so to continue seasines as well as possession for fourty years from the beginning of the first seasine ; but no necessity was found to produce the retour or precept , where possession was by seasines one or more , the seasines as well as possession being continued for fourty years , february . . earl of argile contra laird of m●naughtoun . prescription of an annualrent constitute indefinitely out of two distinct tenements , was found not incurred as to the one , in respect of the annualrenters uplifting the whole annualrent out of the other in the same manner , as payment of annualrent by the principal debitor preserves the obligement of the cautioners , though they payed no annualrent for fourty years , and the heretor distressed was found to have proportionable relief out of the other tenement , though both were now in the hands of different singular successors , and required different seasines , iuly . . lord balmerino contra hamiltoun of litle-prestoun . prescription of annualrent mortified to an hospital , was sustained by freedom there from fourty years without consideration of the pious use , or that the poor had yearly overseers chosen , and were not esteem'd as minors , or without any abatement of the time of the troubles when there could be no process , iune . . bead-men of the magdalen ▪ chapel contra drysdail . prescription of the annualrent of a bond was elided , because the principal sum was payed to the feear , and it was sufficient that the annualrent was due within fourty years preceeding that payment , which annualrent was due to the executors of a liferenter this was stopped and altered as to this , that it was not found relevant to preserve the annualrents that were within fourty years before the last payment , but that they were within fourty years before the intention of the cause , all annualrents or actual prestations preceding that fourty years prescribe , because every years payment is a several obligation , and that hath no effect as to the rest , the first interlocutor was , iuly . . and the second , february . . blair of balhead contra blair of denhead . presvmption of allowance was sustained to take away publick burdens payed by a tennent , though his tack bear to be relieved thereof , and he produce discharges of his rent , and also discharges of publick burdens , unless by writ or his masters oath he prove they were not allowed , december . . veatch contra paterson . presumption that tickets of publick burdens were allowed to tennents in their rent , was sustained to elide the tennents pursuit thereon for payment thereof , albeit his tack bear a clause to relieve him of all publick burdens , here the tennent left the land several years before the pursuit , and never did any diligence to get these allowed , but it was sustained by the masters oath , that these were not allowed , december . ● . paterson contra veatch . presumption of a wifes warrand to borrow a smal sum and impignorat a bond therefore , was sustained , she having the bond in her custody , february . . paterson contra pringle . priviledge of burghs to arrest persons of find caution of answer as law will , was found to extend to the pear of leith as a part of the burgh royal of edinburgh its priviledge , and if done by the water baillie , but not if in the burgh of batony of leith , or by the baron baillie , ianuary . . hamiltoun contra mitchel and keith . priviledge of burgh was ●ound not to extend to incarcerat unfreemen found within their burgh till they find caution as law will , albeit by a former decreet they were decerned to desist from merchandice competent to free burrows , and that thereby they might only seize upon these goods by the act of parliament , ianuary . . town of lin●●thgow contra borrowstounness . probation of immemorial possession or custom , was not found instructed by a decreet mentioning a former decreet wherein the same was proven , unless the testimonies were extant or produced , december , . bishop of the isles contra hamiltoun . probation of a disposition being onerous to exclude ●ucrative succession and absolvitor thereon in a process , was not found sufficient as repeated from another decreet , not being de recent● , except it had been after a long time when witnesses were dead , and in that case their testimonies if extant , behoved to be seen again , ianuary . . contra edmonstoun of carden . probation of a defense was admitted partly by oath what was the cause of the bond , and partly by witnesses , that the condition thereof was contraveened , iune . . aikman contra probation of the delivery of a great bargain of victual , was not inferred from the declaration of a person intrusted by the debitor to receive it , seing there was a time limited to obtain his declaration , after which his condition and trustinesse might change , and could not perpetually oblige the intruster , iuly . . executors of the earl of dirletoun contra duke of hamiltoun , earl of crawfoord and others . probation was found to be according to the most pregnant testimonies , though others witnessed a greater quantity , this was in a matter old , and in the estimation of ●osse , november . . lord iustice clerk contra laird of lambertoun . probation by one witness and the oath of the pursuer in supplement , in favours of a party who had been absent ●ut of the countrey in the kings service , pursuing for his share of a ship and goods against the remnant owners medled with by them in anno . was sustained by the admiral , but reduced by the lords , and the pursuer ordained to adduce farther probation , february . . captain strachan contra morison . processes being dispute to the full in present●a , the lords by act of sederunt , ordained the clerks not to give up the same , or any process dispute at full , though there were no interlocutor thereon ; but ordained it to be keeped till the dispute were advised and interlocutor pronunced , iune . . town of edinburgh contra thomson . promise to relieve a cautioner who relieved the promisers goods of poinding , was found not probable by witnesses , though within an hundred pounds , where the promiser was dead , iuly . . don●ldson contra harrower ▪ a promise by a wife after her husbands death , never to quarrel a tack of liferent lands which was in writ for several years , was found to exclude her , and not to be as a verbal tack valide only for a year , but as pactum de non repugnando , ianuary . . scot contra murray . a pro-tvtor being an overseer intrometting with the pupils bond● , was found only lyable for the whole bonds received by him , though he uplifted the annualrent of a part of them only , and for the annualrent thereof , but not for any other means or estate of the defunct , because there was no antecedent law or rule to oblige him , but an act to sederunt was ordained to be made and published , that all persons ●edling so in the future should be lyable both for intromission and omission as tutors , iune . . swin●oun contra . a pryze ship was found not justly taken , belonging to a prince holding of the kings enemies , unless he contribu●e to the war , ianuary . . harison contra laird of lud●uhurn . a prize ship was liberate belonging to neuters , not the kings enemies nor alies , albeit carrying counterband-goods , unless it were proven that the war was known at the place they ●o●sed from when they loused , and that acts of hostility , and declaring prizes in neighbouring places was not sufficient without publication of the war , or knowledge thereof , iuly . . iurgan contra captain logan . a ●rize ship was found justly adjudged as carrying counterband-goods , albeit a swedish sh●p , and by the swedish treaty , such counterband-goods were allowed to the sweds , which was only understood , ( they being the g●owth of their own countrey ) iuly , and . . and november . . packman contra captain allan . a prize being taken pursued by two privateers , was ●ound equally to be divided betwixt both , and not according to the proportion of their guns , seing the least and lightest of the frigots did seaze when the other was at a considerable distance , and his conco●rse and con●ortship , though made without consent or special commission from the owners , being both in precinct● belli and profitable for the security of either party , february . . cuningskie contra captain mastertoun . prize ships being questioned as having in them the product of co●nterband-goods carried in to the kings enemies in the same voyage , from which the ship was returning , was found not sufficient by the tenor of the admiral of scotlands commission , bearing warrant to seaze if the product of counterband-goods in that voyage were found , but by the law and custome of nations , and therefore the lords granted commission to ●ry the custome of holland , france , england and spain , february . . packman contra allan . a prize being taken upon probable grounds , and adjudged by the admiral , the kings tenth part , and admirals fifteenth part , being payed , and the goods sold , the decreet of adjudication being reduced , the privateer was found lyable but for the value that the goods might have given by rouping , if they had been preserved and sold when and where they were adjudged , february . . captain mastertoun contra strangers of o●●end , but the kings th part , and admirals th part , were not allowed . a pryze ship of hamburgh taken as carrying counterband-goods to the da●es , after acts of hostility betwixt the king and them , was liberate , because she was taken before the proclamation of the war against the danes , but the captain was found to have probable ground to seaze , and was found only lyable for what profite he had made of the ship and goods , unless he had been th● culpa by the spoiling or mis-appryzing thereof , february . . merchants of hamburgh contra captain dis●ingtoun . a pryze ship belonging to the sweds , was found war●antably taken , because she was navigat with hollanders the kings enemies , contrary the kings proclama●ion of war , albeit they h●d a pass conform to the swedish treaty , wherein it is permitted to the sweds to make use of hollanders as masters , he becoming a sworn burges of their town , without mention of what nation the remnant company migh● be of , february . . owners of the ship called the castle of riga contra captain sea●oun . a prize ship was found justly adjudged , because a great part of the company were hollanders , in respect of the kings proclamation of war , ordaining ships to be taken that had in them any number of men , or goods belonging to enemies , albeit the ship was a swedish ship , and had a pass conform to the swedish treaty , which bear that such a pass being found there should be no further inquiry in men or goods ●isi gravis suspiti●o subsit , seing that treaty bear a liberty to the s●eds to have a hollands master becoming a sworn burges of any town of sweden , and had no such priviledge for the mariners , iune . . paterson contra captain anderson . a prize ship was found justly taken being insisted against on several grounds , as having a number of the kings enemies the hollanders sailers , being only proven to be three , and the company nine , as having been two years with the kings enemies merchandizing , but not in the war , and by having a small parcel of tar , as counterband in the same voyage , upon all joyntly , the lords declared but not upon any point alone , iuly . . capta●● allan contra parkman . in prize ships competent and omitted as a particular custom of scotland , was not sustained against the strangers , but they were found to have the benefite of the law of nations , iune . . loyson contra laird of lud●uhar● and captain wilson . a prize ship declared as carrying counterband , having on board oak cutted at three foot and an half for making barrels , in respect the admirals commission bear clapboard as counterband ▪ though testimonies from the admiralities of england , holland , and flanders were produced , that such timber was not accompted counterband , a great number of the lords being of a contrary judgement , iune . . captain contra a prize ship being in question , which being alleadged to be fraughted from norway to london with timber , by the kings proclamation , warranding ships even of his enemies countreys to be imployed for bringing timber for the rebuilding of london , they getting certificates and passes from the duke of york , the ship having on board . dails not belonging to the london merchants , the same was found sufficient to confi●cate the ship and these dails , but not to confiscate the cargo belonging to the english merchands ▪ if he could produce a pass conform to the proclamation and the kings letter , bearing that he was sufficiently informed that this ship had a valide pass , and therefore ordering her to be restored , was not found relevant to liberate the ship , or merchants cargo without production of the pass ; but the letter was understood to be ●alvo jure , not proceeding upon the hearing of parties , albeit the duke of york did asset that he had formerly given a pass to that ship , iuly . . captain wood contra ne●lson , here the skippers testimony alon● was received to prove against the owners . a prize ship being adjudged by the admiral and the decreet being quarrelled , because the skipper had a pass declaring the ship and goods wholly belonging to the sweds the kings allys , the pass was conform to the swedish treaty , which clears expresly that where such passes are , ●eq●id ampl●s exigatur in bon● , aut homines nullo modo inquiratur , the adjudication was sustained , in respect that the pass by the oath of the skipper and company was found to be a contrivance , and there was no sufficient probation that the ship and goods belonged to the sweds , and that the treaty bears si qua gravis susp●●io subsit , that seazure may be made , iune . . burrow contra captain 〈◊〉 . a pvpils person was found to be keeped by her mother who was widow , till her age of eleven years , and then by a friend of her fathers side , but not by the tutor who was nearest to succeed . february . ▪ laird of d●ry contra relict and daughter of his brother . ratihabition vide clause ianuary . . mason contra hunter . recognition committed by a defunct's alienation was not stopped upon the priviledge of minority quo minor non tenetur placitare , &c. february . . lady carnagy contra a lord cranburn . recognition was not clided , because as importing ingratitude which is criminal , it was purged with the death of the committer , but was sustained against his successor , ibidem . recognition was found to be incurred by alienation of ward lands , albeit the seasine taken was without the acquirers mandat subscribed , but by a general mandat out of the chancellary , seing it was taken by his grand-father , giver of the alienation , and albeit the disposition bear only ( ●ailing of the disponers heirs of his body ) seing it had a warrand for seasing this party de prese●ti nominatim ; nor was it reduced upon minority to annul the seasine and shun the recognition , ianuary . . inter eosdem . recognition was incurred by giving an infeftment base to a grand child , not being then alioqui successuru● of ward lands , though taxed ward , and though granted to heirs and assigneys , which was only understood that the disposion , charter or precept before seasine might be assigned but not after , nor was it respected that the seasine as not confirmed was null , nor that it implyed a tacit condition that the superior consented , nor that the giver was an illiterat person , and the case dubious , here the case was favourable for the donatar , who was the disponers eldest daughter , and who was past by , and the second daughters heirs , though strangers , were preferred in all , february . . inter eosdem . a donatar of recognition granting a precept to a vassal in the lands falling in recognition , acknowledging that vassals predecessors right and his own in the ordinary terms of a precept of clare constat , albeit the precept did also bear in obedience of precepts out of the chancellary , yet the same with the seasine following thereon , was found to exclude the donatat and all deriving right from him thereafter , iune . . gray contra howison and gray . recognition was found not to be incurred by an infeftment taken upon a tutors precept , being no act of lawful administration , and done under the vsurpation when recognitions were not allowed on that ground , iuly . . iack contra lack . recognition was found not in●erred by a disposition not subscribed , nor delivered till the granter was on death-bed , and that death-bed was competent by exception against the recognition , as not being a possessory but a pe●itory judgement , iuly . . barclay contra barclay . recognition was found inferred by infeftment of ward lands , when the disposition contained a precept of seasine and was delivered in leige po●stie , without reservation , albeit the seasine was taken when the disponer was on death-bed , ibidem . recognition was incurred by alienation of ward lands holden of the king , though done when the superiours consent was not required before the kings restauration , seing neither after the ves●al nor sub-vas●al ●ought confirmation , not being refused by the king to these who sought it , december . . ma●tland of p●●trichi● contra gord●un of geight . in a recognition the donatar was found only obliged to produce the kings gift as his title , without neces●ity to instruct that the king was superior of the lands ward , law presuming these if the contrary be not proven , and a term was assigned for obtaining the infef●ment to be produced , whereby recognition was incurred , february . . contra m●●ulloch . declarator of redemption was not stopped , because the reversion was not produced , the pursuer being an appryzer , and offering to pr●ve by the de●enders oath that it was in his own hand , february . . children of wolmet contra ker. redemption was sustained at the instance of a singular successor , albeit he shewed not the reversion at the time of the order , nor now , but offered to prove that it was in the defenders own hands , february . . collonel montgomery contra halyburton . in a redemption the sums were not ordained to be given up till a wodsetters apparent heir was infeft as heir , and that the declarator without resignation was not sufficient , february . . campbel contra bryson . redemption was sustained upon consignation of a liquid debt due by the wodsetter to the reverset , upon a clause in the contract of wodset , ianuary . . h●g contra hog . redvction of a retour was found sufficient to reduce a decreet against the party as heir , albeit the decreet was obtained before the reduction of the retour , and the obtainer of the decreet was not called to the said reduction iuly . . mitchel contra hutches●n . reduction of a decreet upon the reduction of the retour , whereupon the decreet proceeded was sustained , albeit the obtainer of the decreet was not called to the reduction , though after his decreet as not being a party necessary , ibidem . reduction of a decreet obtained against infants charged to enter heir , was ●ustained , though not raised inter anno● utiles , seing it lay over and was not insisted in all that time , since it was not known till anni utiles were past , iuly . fleming contra forrester . reduction was not found necessary where all was produced that was craved to be annulled , and the rest only in consequence , but that a libel by declarator of nullity was competent , february . . viscount of stormont contra creditors of annandail . in a reduction and improbation , the defender was allowed to propone his defenses upon the writs produced by him as sufficient to exclude the rights produced by the pur●uer before certification contra non producta , without necessity to the de●ender to declare that he would make use of no more writs , december . . laird of mochrom contra laird of martoun and others . in a reduction of a valuation no need was found of calling a wodsetter publickly infeft , being an improper wod●et , and seing the obtainer of the decreet his heir having the reversion and possession was called , iuly ● . . earl of landerdail contra laird of wolmet . reductions take ●away all consequent rights that need no several reasons as falling in consequence , albeit the parties interressed therein were not called to the reduction of the principal right , iuly ● . . dowglas and her husband contra the laird of wedderburn . reduction of a decreet of exoneration was sustained against the executor without calling the creditors or legators , ianuary . . arnot contra arnot . reduction of an heretable right was sustained on an appryzing on the pursuers own bond assigned to himself and a charge thereon , without infeftment , and the general clause thus limited , against all writs granted by the pursuer and his predecessors to whom he doth succeed jure sanguin●s or his authors , whose rights and pogresses thereto he produces , or to the defender or his predecessors to whom he may succeed jure sangu●nis or his authors , who , or some to represent them are called , ianuary . . little contra earl of n●thisdail , in a reduction no process was sustained for reducing an heretable right till the defender● authors were called , though the pursuer declared he insisted not against that authors right being common author , but against the defenders right from that author , seing that author was bound in warrandice , and therefore behoved to be called , ianuary . . lord borthwick contra ker. in a reduction ex capite inhibitionis , the defender producing a sufficient right to exclude the pursuer , being before the inhibition , the defender being indigent , the lords ordained the parties to dispute their rights as if it had been in a general reduction , ianuary . . brown contra wilson , and callender . reduction was ●ound to extend to a term before sentence february . . borthwick contra skein . in a reduction the authors being cal●ed , one dying a●●er conclusion of the cause , the same was not advised ●il one ●●presenting him were called , though the reasons were only against the first authors right , and ●o the rest would fall in consequence , seing all were interressed in the wa●randice to defend the first authors right , iuly . . l●ith contra lesmore and others . reduction of a bond was not sustained against the creditor who was denuded by assignation intimate to the pursuer before the citation , iuly . . lord blantire contra walk●●●haw . in reductions of rights of lands without improbation , the lords declared they would grant two terms to produce , n●vem●er . . h●y of hay●●●un contra drummond and ●ep●urn . reduction ex capite inhibitionis , was sustained though the inhibition was only on a clause of warrandice , and there was yet no actual distress , only to take effect when the distress should take place as a declarator of right , december . ●og contra countess of hume . in a reduction ex capite inhibitionis , the defender was admitted to exclude the pursu●rs title and right by other rights 〈◊〉 to the inhibition , which the lords would not reserve , but received them by way of defense , december . . inter eosdem . a reduction on death-bed was sustained at the instance of the creditors of the apparent heir on this interest , that the debts of the apparent heir might affect the estate disponed , if the disposition were reduced , february . . creditors of my lord balmerino and lord cowper contra lady cowper . reduction was found necessary to take away a decreet of double poynding , and that a second suspension of double●poynding ●aised by a party who compeared not in the first instance , was not sufficient , though in decreets in absence suspension without reduction is sufficient , february . . watson contra sympson . regalities cannot be prejudged by the bloodwits or amerciaments of the iustices of peace within the regality , but that ●uch only belong to the lord of ●egality as was ●ound iuly . . earl of sutherland contra m●●tosh of c●nadge . regalities having chappel and chancellary , general services need not be retoured to the kings chancellary , ianuary . . reid contra relief amongst persons bound conjunctly and severally , was fo●nd to follow , where one is distrest for all , though there be no clause of relies exprest , relict of the minister of ednem contra laird of wedderburn . the like iune . . wallace contra forbes . the like iune . . mont●ith contra anderson , vide clause , ibidem . a relict was found neither to have share of stock nor terce of annualrent of a sum bearing annualrent without infeftment , iune . . s●ry●zeour contra murrayes . a relicts third of moveables was found not to be abated by the husbands heretable debts , as bearing annualrent , whether they exceeded the heretable sums due to the defunct or not , iuly . . inter eosdem . removin● cannot be stopped by alleadging the de●ender is tennent by payment of mails and duties to such a man who is not warned , unless it be alleadged he hath infeftment , or tacks for terms to run after the warning , but tacite relocation sufficeth not , ianuary . . rl●●art contra removing was sustained on a warning on . dayes , albeit the party was out o●f the countrey , being now cited upon . dayes , without necessity to warn him by letters of supplement on . dayes , february . . m●●ra●r contra crichtoun . removing was not sustained by a warning made by the feear before the liferenters death , no not to take effect at the next whitsonday without a new warning , iune . . agnew contra tennents of dronlaw . renvnciation to be heir was admitted , and a decreet thereupon reduced , obtained against the renuncer as charged to enter heir , albeit they had raised no reduction thereof intra annos utiles , because the decreet was obtained at the vncles instance , in her in●ancy , and not insisted in within the anni utiles , iuly . . relict of fleming contra forrester . a renunciation of a fe● was sustained to liberate the vassal from the fe● duty , albeit the feu was constitute by a mutual contract obliging the feear and his heirs to pay the feu duty yearly , ●eing there was a back-bond of the same date , that the feuar might renunce when he pleased , february . . brown contra sibbald . renunciation of all right and interest was found only to extend to all right the renuncer had , and not to any future right or rights , to which the renuncer might succeed unless it had been mentioned , iuly . . baillie contra baillie . reparation of a kirk was found in no part to affect the titular of the teinds , but the heretors of the land only , ianuary . . relict of the minister of ednem contra laird of wedderburn . reparation of manses done by the incumbents before . was found not to burden the heretors for t●e value of . merks conform to the act ▪ renewed . but only for . merks , which was the quota before these acts , and that not against singular successors , ianuary . . charters contra parochioners of currie . reprobatvres were sustained though not protested for at the examination of the witnesses , against whose testimonies the reprobature was now used , being protested for before sentence , iuly . . laird of milntoun contra lady milntoun . reprobature was not admitted to be added after a reduction was filled up and discust in a devorce , but reserved to a special action of reprobature , february . . inter eosdem . reprobature for annulling a decreet of divorce of the commissars , was sustained at the instance of one who had bought the liferent from the husband , and which would fall back to the wi●e by the divorce , who compea●ing before the commissars to object against the witnesses , and interrogate th●m was not admitted , and having in a reduction before the lords obtained the witnesses to be re-examined , their own testimonies of corruption were not admitted to ener●ate their former testimonies , but reprobatures were reserved , and being insisted in , it was not found relevant that they were viles & pauperes , the principal cause being adultery which is a latent crime , neither that they were infamous by common report , unless they had been declared infamous by a iudge , or found culpable of a crime or fact , that the law declares to infer infamy , ianuary . . inter eosdem . reprobatur● were found relevant being libelled upon instructing or prompting of witnesses , without necessity to alleadge that the witnesses undertook or deponed conform , and that in odium corrumpentis , without inferring any blemish upon the witnesses of prompted , who consented not or swoar falsely , ibidem . reprobatures were found relevant upon libelling of corrupting of witnesses , upon giving or promising of good deeds more than would be suitable for their charges , ibidem . reprobatures upon corrupting of witnesses , by giving or promising bribes , or prompting witnesses to depone , was ●ound only probable by writ or oath of the parties who adduced the witnesses after decreet , and not by witnesses , unless the reprobatures had been pursued before decreet proceeding upon the testimonies of the witnesses quarrelled , this was stopped till the further hearing and was recalled , and witnesses above exception were found competent whether before or after sentence , and the witnesses were ordained to be condescended upon ; the first interlocutor was the . of iuly . and the second the th . of february . inter eosdem . reqvisition of a sum was sustained though it mentioned not the procutatory produced , seing it bear that the same was known to the nottar and witnesses , and thereupon the defunct party did appryze , ianuary . . steuart contra steuarts . a requisition was sustained though it bear not a procuratory produced , seing it was not called for then , and is now produced , and the procurator shew writs whereupon the requisition was to be made , as the instrument bears , i●ne . . hume contra lord iustice clerk. a retovr was found reduceable without the solemnitie of a summons of error in latine calling the inquest , seing the point in question was that point of the brieve , that the parties grand-father died last vest and seased , whereas the seasine of an vncle and father were now produced , which inferred ●o error in the inquest , who behoved to serve to the last they saw infeft , and therefore the lords reduced , iuly . , mow contra dutches of balcleugh . a retour being called for to be reduced as proceeding without warrand or probation , and nothing being produced but the brieve , executions and service , but no witnesses having deponed on the propinquity of blood , and none of the inquest having declared so on proper knowledge , the lords would not therefore annul the service , but ordained the inquest to be cited , to give their oaths on what ground they served , february . . mercer of aldie contra cowan . retoures of heirs are not reduceable unless they be quarrelled within . years by the special act parl. . thereanent , which was only found to relate to retoures deduced since that act , but by the general act of prescription . the action of reduction of retoures quando ecunque deduced , prescribes if not quarrelled within . years , november . . young contra iohnstouns , vide heir . a retour of five years possession of a fo●efaulted person , was not sustained to be reduced by way of ordinary action , but by a summons of error in latine under the quarter-seal , though such reduction were oft time● allowed before , iune . . hume contra creditors of kell● . a reversion granted by a person obliging a buyer to dispone to the seller , was found to extend to the disponers heirs , though not exprest , seing the ordinary clause of paying the sum in the disponers own time , was not ad●ected , and it was held but as an omission non dedita opera , that heirs were not exprest , ianuary . . earl of murray contra laird of grant. a reversion was not ●ound null , not being registrate before . by the act . which was found in de●uetude , iuly . . earl of hume contra his wodsetters . a reversion bearing payment at the wodse●●ers house at london , was ●ound satisfied by consignation at edinburgh where his successor dwelt , february . . creditors of murray contra murray . a reversion to a person and the heirs of his body , was found ●ufficient to redeem by that person , albeit he had before as●igned the reversion , and disponed the land to another , february . . earl of tillibardin and sir iohn drummo●d contra murray of ochter●yre . a right real of lands was found not burdened with a provision in the disposition , that the lands should be affected with such a sum , against an appryzer or singular successor , ianuary . . colquhoun contra adamson ; but thereafter this case being considered and the clause for payment in the infeftment , the father who granted it being in possession , it was ●ound relevant against the singular successor till it were performed , november . . inter eosdem . salmond fishing in a river was found not to impede the letting out of a loch into that river , though hurtful to the fishing as was the lords opinion , but because it was a reference from the parliament , who might make a law thereanent , the lords granted commission to visite before answer , iuly . . mayor of bervick contra laird of hayning . salmond fishing by c●uives was found valide by an infeftment to a burgh cum piscationibus & piscariis , without special mention of salmond fishing or cruives , cled with immemorial possession , and which cruives the burgh was suffered to change from one part to another within their own bounds , being without pre●udice of the other fishings above , or putting them in worse condition then they were before with the former cruives , and being but one cruive dyke , whereof the lords would not determine the height , or whether it should be stopped or not , but seing they possessed immemorially the former dike , this was to be made conform in all points , and found that the hecks ought to be three inches wide and not five , and that the act of king 〈◊〉 the th . bearing five , was an error in relating a former act of king davids , there being no such act amongst his acts , but there being one act of king alexanders amongst his acts for three inches , it was ●ound that that should have been related , as the rule , and that saturndays slop should be keeped of all the cruives , and not of one only in the midle stream by opening an eln in each cruive , pulling up the hecks thereof , and that from saturnday at six a clock till munday at sun rising , and ordained the common custom , to be proven the hinc inde concerning a constant open midle stream , which was not repeated in king , la. . his act ; nor had the lords respect ●o the ratifications of these acts purchased in the parliament . being impetrate by private parties , not printed or past the articles , or done in the stile of a general law , ianuary . . heretors of don contra the town of aberdene . satisfaction of an appryzing , and of the sums whereupon the same proceeded , was admitted by exception upon what sums the apparent heir , to whose behove the right returned payed out therefore , and that by intromission and present offer of what remained after compt and reckoning , albeit the pursuit was not upon the appryzing , but a reduction on an inhibition upon the bond whereupon the appryzing proceeded , iune . . forbes of watertoun contra shein , vide appryzing . a seasine on an appryzing within burgh was sustained , though not given by the baillies but by the provest , nor by the town clerk , but by another nottar , because the baillies and clerk were excluded by the english for the tender , iuly . . thomson contra mckitrick . a seasine not registrate of a liferent to a wife , was found valide against the apparent heir of the granter , though brooking by a prior disposition , seing it contains a power to the father to dispone and grant annualrents , february . . countess of carnwath contra earl of carnwath . a seasine propriis manibus of a husband to a wife who had no contract of marriage nor other provision , and had disponed a former liferent to the behoof of the husband , was found a sufficient title without a warrand or adminicle in writ , in respect of the marriage and duty of the husband to provide his wife , iune . . relict of garigs contra wallace of garigs . a seasine within burgh under the clerks hand was sustained without necessity to 〈◊〉 it was regi●●rate in the town books , in re●pect of the exception in the act anent registration of seasines within burgh not requiring them to be regist●ate in the towns books , iune . ● . bur●et contra swan . the ●ike though the seasine was by the sherif● clerk , there being no town clerk in office , iuly , . thomson contra mcki●rick . a seasine propri●s manibus , albeit sustained to a wife without one adminicle , who had no contract of marriage , and had at that time quite her loynture by a former husband to the husbands creditors , yet two of the witnesses being positive that they were never witnesses to any seasine given to her , a third deponing he remembred not , a ●ourth abiding by the seasine , but deponed it was in summer , where the seasine bear in winter , was improven , though the nottar offered to abide by it , but the lords refused to examine him or any extrinsick witness , in respect the seasine had no warrand in writ , ianuary . . wallace of 〈◊〉 contra ●l●kerrel . a seasine propriis manibus by a father to his son , reseving his fathers liferent , was found valide against a second wifes infeftment in the same lands , though granted for a competent tocher , albeit the seasine had but two witnes●es , and had no disposition or precept to warrand it , but an adminicle , viz. a bond by the father of the same date , obliging him to warrand the seasine , and that it was not a fraudulent ●atent deed , it being registrate , nor was it alterable by the father as a bairns portion , february . . buchan contra taits . service of harrage and carriage in a 〈◊〉 was ●ound not due but when demanded within the year , iune . . watson contra eleis . servitvde of fail and divot , clay and stone granted in a muire definitely , where there was no pas●urage therewith , was found not to hinder the proprietar of the muire to plew and rive out a par● , where there was more le●t then was like to serve the use of the servitude ●or ever , yet so as if it should happen at any time thereafter not to suffice , a part of that riven out should be laid ●ee for the same purpose , in this , respect was had to the publick utility , the whole muire being otherwayes improfi●able ▪ and the restriction was not allowed till the muire was actually riven out and pl●wed , iune . . watson contra feuers of dunkeir a servitude of putting over a miln damn upon other mens ground was ●ound not consti●ute without his consent , though he shew no detriment to him thereby , iune . . hay of strowi● contra feuers . a servitude of common pasturage , though if ordinarly carry fail and divot , yet if by cu●●ome fail and divot be excluded and hindered , it is ●ot excluded , february . . laird of haining contra town of se●kirk . simvlation of a gift of e●cheat was inferred upon the act of parliament . because the rebel was suffered to possess four or five years , in which 〈◊〉 were patent , albeit the donatar obtained g●neral declarator long before , and was himself a lawful creditor , and that the lands were appryzed before the rebellion , seing the appryzer possessed not but the rebel , ianuary . . oliphant contra drummond . simulation of a gift of liferent escheat , was ●ound probable by the superiour and witnesses insert in the gift their oathes , that it was to the rebels behove , iune . . scot contra langtoun . simulation of a gift of liferent taken by a party who had bought lands for securing himself , in respect the sellers escheat was ●●llen , was not inferred by allowing the expenses of the gift in the price of the land , which the seller was obliged to warrand , seing he did not extend the gift any further than to the lands bought to himself , unless it were proven he knew of the other party competing his right , that it was perfected before he took the other disposition of the same lands , and thereby was particeps fraudis with the seller who granted double dispositions , . . hamiltoun of corsse contra hamiltoun and viscount of frendraught . simulation of a gift of escheat and liferent was not inferred , because it was granted to the rebels son , who was not in his family , but had means of his own , nor that the father continued in possession for sometime after declarator , nor were the members of exchequer admitted to prove that the gift was procured by the fathers means and moyen , seing the son gave back-bond , that being satisfied of the debt in the horning , his own debt and expenses of the gift , there should be place to the rebels credi●ors , and did make faith at the passing of the gift , that it was to his own behove , december . . ●●ffrey contra doctor 〈◊〉 . simulation of a gi●t of li●erent was inferred from the rebels obtaining the gift b●ank in the donatars name , which being in his hand and delivered to a creditor for security of a just debt , the same was found null even as to him , december . . langtoun contra scot , a singvlar svccessor was not found lyable for publick burdens imposed by committees of parliament , ratified in parliament , iuly . . grahame of hiltoun contra heretors of cla●kmannan shire . slander , vide commissaries . in a special declarator of eschea● ▪ the payment of the debt before denunciation , was ●ound relevant upon the creditors oath , but nullity of the horning upon informality of process was found not relevant , seing these purged not the contempt and disobedience , in not paying or suspending , february . . montgomrie contra montgomrie and lawder ; in this case the alleadgea●ce on the back-bond granted to the thesaurer by the donatar , in favours of the creditors , was not found relevant without a second gift or warrand from the thesaurer . sp vilzie was elided by disposition and instrument of possession , though it was omnium bonorum , and no natural possession ●ollowed for two years , seing there was no forcible resistance , ianuary . , irwing contra m●kartnay . in a spuilzie many persons being called as accessory , there being on others whereby the defender might prove his defense , the lords declared if the pursuer insisted against them all , they would ordain him first to insist against the accessories , that such as were assoilzied might be witnesses , february . . inter eosdem . spuilzie of teinds was not elided by ther , and . acts of parliament . declaring the teinds to be the fifth part of the rents , and that every heretor shall have their own teind until valuation be intented , december . . lord balmerino contra the town of edinburgh . spuilzie no● being pursued ●ithin three years can only be pursued thereafter as wrongous intromission , and the parties are not lyable in solidum , but if all be proven intromettors , they are lyable equally , as being all presumed to have equally intrometted , unless the greater intromission of some of them be prove m , ianuary . . strachan contra morison . a spuilzie was not elided by a poinding , though one offered to make faith the goods were anothers then the debitors , not being offered by himself , his servant , or by his commission , seing that partie had a disposition with an instrument of possession , and several acts alleadged o● his nat●ral possession , from whom the goods were poinded , iuly . . corbet contra stirling . spuilzie of oxen the pursuers had in the pleugh four moneths was elided , because the defenders had intrometted with them by an order of the sheri●● , execute by his officers , as being stollen goods , though there was no citation of pa●●ies for obtaining the warrand , which might be summarly used for recovering of goods , notwithstanding of . moneths peaceable possession , unless with the possession the pursuer should instruct a lawful and onerous title , as having bought the oxen in which case sentence was found necessary before the possessors were dispossessed , iu●y . . strachans contra gordouns . stipends of ministers affect the teinds as a real burden , and all intrometters even these who buy , as merchands buying the whole . teind of a mans land for a year ▪ so that they cannot pretend payment made to the heretor bona fide , seing they should know that real burden , iune . . vernor contra brown. stipends quoad intrants were found to divide in two terms , that the intrant before whitsond●y hath ●oth terms , but after whitsonday and before michalmass only one term , iuly . . w●yms contra cunninghame . stipends were not found to burden and heretor where there is a liferenter living , iune . . menzeis contra laird of glen●rchie . stipend of a minister reponed shortly after michalmass as having presentation , collation and possession before , and wrongously put out , was found not to prefer him to that years stipend against the lncumbent possessing and serving the cure 〈◊〉 michalmas bona fide , iuly . . kirkaldy contra balcanquel . a stipend whereto a stipendiar was presented at lambass , and served from thence , and was admitted shortly after michalmass , reached not the whole stipend , but the half , though the presentation was before michalmass and the actual service , seing the admission was shortly after , iune . . hay contra collector of vaccand stipends . a stipend was found to affect the whole teinds unbought where there was not a locality , and so the minister might take himself to any here●or for his whole free teind , and not pro rata without prejudice to him to pursue for relief , december . . hutcheson contra earl of cas●●ls . a stipend was found instructed by seven years possession without any title in writ , so as to give a possessory judgement , november . . petrie contra mitchelson . a stipend was found to belong to a minister transported in ianuary , who continued preaching till april , and not to his successors , who was presented before whitsonday , but not admitted till l●mbass , none compearing for the collector of the vaccand stipends , ianuary . . mcqu●en contra marquess of dowglass and purves . stollen goods were ●ound recoverable by the owner , by warrand from the sherif● summarly without citation of the possessors , though they had peaceably possessed the gooods four moneths in that pleugh , unless they had acquired possession by an onerous title , iuly . ▪ strachan● contra gordoun● and others , vide spuilzie . svbmission betwixt commissars to the bishop without any determinat ish , or time determined to be filled up , or blank , but generally referring all controversies that should arise to the bishop was found valide and not determined by a year , but a term was affixed to determine what differences are now occurring , february . . bosewel contra lindsay of wormis●oun . svbstitvtion , vide clause . svccessor lvcrative was not inferred by a disposition by a father to a son having an elder brother living , or so presumed , as lately before gone out of the countrey , and so not then alioqui successurus , february . . hamiltoun contra m●farlane of kirktoun . successor lucrative being alleadged by a disposition of land by a father to his son in his contract of marriage for a tocher payed to the father , and debts and bairns portions far within the value of the land , he was not found lyable in solidum , nor yet the pursuer put to a reduction , but the passive title was sustained personaliter in so far as the onerous cause was less then the ordinary price at that time , with annualrent since the intenting of the cause , iune . . ly●n of mu●resk contra 〈◊〉 . successor lucrative was not inferred by a disposition , being only to a nephew , the brother being alive who was not ●ound alioqui successurus , as in the case of an oye , november . . scot contra bos●w●l of auchm●eck , vide lucrative successor . a svmmons whereof the executions appeared visibly new , and the user would not abide by it , was found not to be transferred , but whether an inhibition raised on that summons , would thereby fall , or if warrand might be granted to use new executions on that summons , though year and day was past , and that by special priviledge to validate the inhibition , was not decided , ianuary . . wilson and callender her spouse contra summons not being execu●e within year and day from the date thereof , no process was sustained thereon , iuly . . row contra viscount of stormont . summons on an assignation libelled at the assignays instance was not sustained , seing the date of the assignation was posterior to the date of the summons , albeit the cedent concurred , novemb●r . . ab●rcromb●e contra andersons . a svperior not being called to a cognition of marches by arbiters , or legally cited , doth not annul the same , but it is but prejudice to the superiour when the fee shall be in his hand , february . . lord torphichan contra a superiour by receiving an appryzer was found not to derogat from the right of ward in the superiour , though he made no reservation , seing it was a necessary act for him to receive , iuly . . hospital of glasgow contra campbell . a superiour bound in absolute warrandice against ward , having a gift of his own ward to his own behove , was found not to distress his vassals thereby farder then for a proportional part of the composition and expense● , february . . boid of penkil contra tennents of cars●uth a superiour was decern●d to receive an adjudger , though the superiour himself had appryzed and alleadged a better right , but the infeftment to be salvo jur● 〈◊〉 & s●o , iuly . . chein contra christie . a superiour giving a disposition of his vassals superiority , reserving their property , and which disposition bear that the a●quirer should hold of the superiour himself ; the said disposition with the infeftment thereon was found null , as interponing the acquirer betwixt the superiour and his vassal , but was sustained as a gift of non-entry , in respect it bear an assignation to all the casualities of the superiority , and the general declarator thereon was found to extend to the fe●-duties after citation , ianuary . . dowglas of k●●head contra his vassal . a superiour being charged to receive an adjudger , was ●ound to have his option either to receive him for a years rent , or to pay his sums getting assignation to the adjudication , but ●o that the land should be redeemable from the superiour for the sums , princ●pal and annualrent contained in the adjudication , without any sum for composition of entry , and that the adjudication was in this as an appryzing by the . act king iames d. iune . . scot of thirl●stane contra lord dru●la●rig . svperiority of kirk lands annexed to the crown anno . reserving the feu-duties to the lords of erection who consented to the surrender , was ●ound not to be a ground for the vassal to force the superiour to instruct his consent , but that it is presumed , iuly . . watson contra el●is ● ▪ here ha●●age and carrage were excepted to the king. superiority and property of the same right coming in the same persons by distinct means , and they infeft in the superiority , and supplicating the lords that they would ordain precepts out of the chancellary to infeft them in the property , seing they could not infeft themselves ; the lords thought that they might be either infeft upon the kings precept or their own precept ; or both , november . . daughters of mo●●oun supplicants . in a svspension a reason of payment by another co-principal , was not found requisite to be instantly verified , nor the defender put to find better caution , though it was alleadged he was in hazard of breaking , but only to give his oath de calumnia , iuly . . vrquhart contra blair . suspension of a minister was found not to take away his stipend he not being deposed , iuly . . ker contra minister and parochioners of carrin . suspension granted on supplication of all hornings that should be condescended on , for relaxation only and to give personam standi in judgement , without stoping any other execution , december . . vrquhart supplicant . tacit relocation was found to indure for more years , during which it was not quarrelled , not the beneficed person could expre●ly set together , ianuary . . earl of errol c●ntra parochioners of vry . tacit relocation of a tennent warned , cannot defend ●he sub-tennent against singular successors , who would only warn natural possessors , ianuary . . rickart contra here the sub-tennent had required th● tennent to give his tack for his defense . tacit relocation after an expyred tack of teinds was sound interrupted by inhibition , though not used by the setter of the tack , but by a third party on a distinct right , unless the alleadger of the tacit relocation could condescend upon a right in the setter of the tack , that might exclude this pursuit , and he condescending that the ●etter of the tack was presented as parson , and had seven years peaceable possession thereby , the same was ●ound sufficient to maintain his tennent by tacit relocation , until the parson took assignation from the pursuer , and so acknowledged his right , which was found to take away the tacit relocation of the de●ender from that time , though it could not have taken away an unexpyred tack , iuly . . earl of hume contra laird of riselaw . a tack set by a debitor to his creditor for seven years for such a tack-duty exprest , with a clause to retain his annualrent in the first end , and not to be removed til the principal were payed , was found valide against an appryzer subsequent as to the endurance of the tack , having a definite ish , and not during the non-redemption , and that there was a superplus of the tack-duty above the annualrent , for which superplus alone the heretor might have set it , but was not sustained as to the clause not to remove , which was found personal not effectual against a singular successor , iune . . thomson contra reid . a tack was found to be no such real right , as the back-bond of the receiver thereof did not oblige his singular successor , but that the back-bond being of the same date , was relevant to qualifie the tack against the singular successor , which back-bond bear a reversion , which was not found needful to be registrate , neither was it intimate before to that singular successor , ianuary . ● . forbes contra a tack of land was found to give the tennent no right to any minerals under the ground , as to clay for making of pipes , and that the tennent could give no licence to any to dig the same , but de natura rei , it was reserved to the heretor , with a power to open the same , satisfying the tennents damnage , february . . colquhoun contra watson . a tack of teinds set without consent of the patron for more than three years , was not found null simply by the act , but was valide as to the three years , iuly ● . . iohnstoun contra parochioners of h●●●oun . a tack for four years , and ay and whi●e sum were payed , was found valide against the liferenters assigney , december . . swintoun contra brown ; here the assigney was not found as a singular successor ▪ as in rights passing by infeftment . a tack of teinds set for more than three years without consent of the patron , was found valide by his tacite consent and homologation , by taking right to the tack , and obtaining prorogation thereon , ianuary . . earl of ath●l contra robertson of strowan . a tack of teinds for several nineteen years and several lifes , was found not to be past from by the tacks-mans taking assignation to another posterior tack for a greater duty , or for greater endurance , seing he did not take the second tack originally himself , but purchased it from a powerful party to prevent his trouble , and did not brook by it , nor pay a greater duty than was in his first tack , iune . . kenn●dy and more contra iaffray . a tack of teinds set by an vniversity for a definite space , with an obligement to renew the same in all time thereafter , was found not effectual after the said definite time , nor obligatory upon the vniversity , unless it had proceeded upon a sufficient cause onerous , and albeit the same duty was received by the vniversity after the 〈◊〉 time , it was found no homologation of the obligement , but as brooking per racitam relocationem , iuly . . old colledge of aberden● contra the town of aberdene . a tack of a house by word for a year being fourteen dayes before the term , was found not to admit locum penitentia by giving over within fourty eight houres after the taking , but that the setter setting again to another , imported acceptance of the overgiving , though that other possessed not , and the possessor not removing precisely at the term , did not liberate the taker , in respect of the custome of edinb●rgh not to remove till six weeks after the term , ianuary . . ker contra dawnie . a tack g●anted by a tutor in secur●ty of a sum borrowed for the pupils use , having no special ish , but to endure while the money 〈◊〉 payed , was sus●ained , february . armor contra lands . a tack ●o the tack● man during his le●e and the life of his first heir , was not understood to be his heir entered , but that his eldest son having survived him who might have been heir , he needed no service for the benefite of a tack , but that part thereof was fulfilled , though he never possessed conform , iune . . lord lovat contra lord m●donald . tack vid● clause , december . . k●nrosi contra laird hunthil . november . . scot contra laird barefoot , &c. taxation . was ●ound sufficiently discharged by the discharge of one who was held and repute collector , without shewing any commission , or being a person in office , december . . duke of hamiltoun contra laird of clackmannan . taxation by a stent roll , was found only valide as to the taxation it self imposed , but without power to add any thing for future expences by the stent , but that the taxation behoved to be ●ifted gratis , if payed without a charge , and if there were a charge , the lords would modifie competent expences , but did not allow an imposition to be added to the taxation , december . . lord colvil contra feuers of c●●lross . taxation . was found discharged by a general discharge to the sheriff in the clerk of taxations books , without showing the sheriffs discharge to the particular heretors , december . . duke of hamiltoun contra taxation was found to affect these contained in the stent roll , seing they conveened not and were stented , albeit if they had conveened they could have freed themselves , their interest being teinds wholly allocat to the kirk , 〈◊〉 . . steuart contra a●cheson . taxation was found not to be due for ●nclosed ground conform to the act of parliament , . and that the act of convention could not derogate therefrom , february . . duke of hamiltoun contra maxwel of mur●ith . taxation and l●an burden not singular successors , iune . . inglis contra balfour . taxation was ●ound not to be due by the director and writers in the chancellary as depen●ents on and members of the colledge of iustice , ianuary . . collector general of the taxations contra the director of the chancellary . the officers of the mint were also found free by a late exemption eodem di● . taxation appointed to be uplifted by magistrates of burglis was found only to oblige these who were magistrates of the burgh for the time personally by their office , and that the town nor subsequent magistrates were not lyable for what they uplifted and made not compt for ▪ iune ● . . pearson of balmadie contra town of mountress . taxation imposed ann● . giving abatement of a third to the temporality of the westeth shires , was found to extend to the kings property there , iuly . . duke hamiltoun contra the feuers of the kings property . teinds though valide were found not to be debitum fundi affecting singular successors , 〈◊〉 . . earl of callander contra monro . teinds were found not to affect the heretor where there was a liferenter , iune . . 〈◊〉 contra laird of glenrchie . the priviledge of being teind free competent to the cyst●rtian order , and the like to templers and hospitallers as to lands in their own labourage , was ●ound competent not only to the temporal lords of erection ; but to their vassals , iuly . . crawfoord contra laird of prestoungrange . teind fish was found due by the merchants who bought the fish immediatly as they were taken in whole boatfuls , in the same way as if they had intrometted with the whole cropt upon the ground , they would be lyable for the teind , december . . bishop of the is●es contra merchants of edinburgh . teinds were found due paroch● notwithstanding of the kings gift , unless mortification or possession thereof were proven , iune . . ferguson contra steuart of a●heog . teinds may not be drawn summa●y upon inhibition , where they were in tack , and not drawn immediatly before , but a decreet must preceed the drawing , and therefore parties having a colourable title , the teinds being so drawn , obtained ed restitution , ianuary . . lairds of bairfoot and bei●stoun contra visco●nt of kingstoun . teind being by long custom payed only as to the half teind , viz. the t● . lamb , the heretor or possessor was not found lyable ●s to bygones for any more , february . . scot of thirlestoun contra scot of ●roadmeadow . teind of herring , killings and ling taken in and about the isles , as the patrimony of the bishop of the isles , was ●ound not to extend to killing and ling , taken by the inhabitants betwixt arran and hesay , they proving immemorial possession free of any teind , november . . bishop of the isles contra fishers of greenock . teinds were found not taken away by a decreet of parliament , ordaining the titular to ●ell upon payment of such a price , it never being offered , so that the teinds remained due till it were payed or offered , and upon refusal consigned , february ● . . earl of kin●ardin contra laird of ros●yth . teinds of a paroch were found to belong to the prebendats of the chappel-royal , without any other title but the books of assumption , and three presentations by the king , and that fourty years possession by the minister did not infer prescription against the kings chappel in respect of the kings interest and act of parliament , declaring the kings interest not to be prejudged by the neglect of his officers , but the said long possession was found sufficient to the minister for all years preceeding the citation , february . . ferguson contra parochioners of kingarth . the tenor of an interdiction being pursued , the production of the letters of publication was found a sufficient adminicle , seing such writs use not to be retired as bonds , iuly . ● . laird of milntoun contra lady milntoun . tenors of writs proven before inferiour iudges was found null , ianuary . . laird of balnagoun contra mackenzie . tenor of a registrate bond admitted to be proved by reply , was not found sufficiently instructed , by an extract under the english hands that keeped the registers at london , though his oath was taken anno . that it was a true extract , iuly . . captain muire contra frazer . tenor of a contract of marriage containing clauses extraordinary , as that the half of the mans money should befall to the wife in case there were no heirs betwixt them , was not sustained without adminicles in writ , albeit the tenor of it was insert in the stile book of him that wrote it , and the tenor was offered to be proven by the writer and witnesses insert , and though it was offered to be proven that the husbands whole means came by the wife , iune . . ●arrower contra hartlay . terce was found not to extend to a bond bearing a clause of annualrent without infeftment had followed , iune . . scrymzeor contra murrayes . a terce was not found taken away by an infeftment in lifer●nt , not bea●ing in satisfaction of the terce , albeit the liferent was competent and suitable to the parties condition , and there was never a contract extended betwixt them but a minute ▪ ianuary . . cri●●toun and eleis her spouse contra maxwel of kirkhouse . a terce was found not to extend to teinds not constitute by infeftment , but was found to extend to a grass yeard let to tennents , it not being a garden or orchyard , as pertinent of a tower or fortalice , february . ▪ moncreif contra tennents of n●wtoun and zeaman . vide base infeftment , bell of belfoord contra a terce was found to be excluded by a wifes acceptance of land in satisfaction of her terce , albeit a part of the lands accepted proved ineffectual to her , her ●nfeftment by her husband , not having been confirmed by the superiour , who was preferr●d to her , and the acceptance was found a simple renunciation , competent to the superiour to exclude the terce , and that she could brook no part ●f the land by vertue of her terce , and that the superiours founding upon the clause accepting lands in satisfaction of the terce , did not import his approbation of her right to the lands accepted , seing she wanted the superiours consent , as being an essenti●l requisite to her infeftment of ward lands , and so could admit of no homologation more than if she had only the contract without any infeftment ▪ this was stopped to be farder heard , whether the relict might brook , at least a third of the ward lands accepted as a ter●e of these lands , though she could not brook the whole ward lands accepted , being within a terce of all her husbands ward lands especially since the clause bear that she accepted the li●erent lands in satisfaction of all farder conjunct fees , but should be repu●●ed a terce as being in lieu of all farder terce ▪ whether in that case she renunced only the terce of any other lands , bu● not the terce of the lands accepted , iune . . lady ba●●●agan contra lord drumlanrig . the term of payment of bairn● p●rtions 〈◊〉 at such a●● age , the same was found as dies 〈◊〉 qui pro conditione habetur , and they not attaining that ●ge thei● nearest of kin had no right , ianuary . . edgar contra edgar . a tesament nuncupative by a scotsman made in england or abroad where he resided , was found null as to the nomination of succession , notwithstanding the law of the place , which rules only as to the solemnities of writs , but not to substantials or appoynting of successors , ianuary ▪ . schaw contra lennox . a testament containing a legacy of a wodset was sound void , though it was done 〈◊〉 pr●●inctu bel●i , february . . wardlaw contra frazer of kilmundy . a testament confirmed , bea●ing persons to be nominate tutors , and that they compeared judicially , accepted , made faith , and found caution , was found not sufficient to defend against a reduction , without production of the tutors subscription , as the warrand to make the tutor lyable for the pupils means conform to the inventary , unless there were other adminicles to astruct the same , albeit the confirmation was thirty seven years since , seing the acceptance was no ordinary act of process , nor no process was moved upon the confirmation till of late , ia●uary last . kirktoun contra laird of hunthil . a testament confirmed was found to be execute at the executors instance by a decreet , though he had not obtained payment , an● though he was executor dative and a mee● stranger , so that after the executors death , the sums in the decreet could not be confirmed by an executo● ad non executa of the first defunct , november , . doun●e contra young. a testament was reduced because the testator being alleadged not to be compos ment●s , the nottar , write● and wi●nesses insert , and other extra●eous witnesses deponed , that about the time of the testament and thereafter the testator was not ▪ in his right mind , and to every question that was proposed , answered alwayes yea , yea , although they were not present at the making of the testament , and were contrary to the witnesses insert , this was stoped to be further heard , iune ▪ . meall●xander contra dalrymple . a testament beginning in the ordinary stile of a testament , and then disponing land , thereafter containing a blank , wherein by another ink and hand ▪ the defuncts eldest daughter was named universal legatrix and executrix , but after all the moveables were dispon●d to the eldest daughter , which testament being quarrelled by reduction , was found null as to the disposition of the lands , and as to the nomination of the executor and legatar , the same was not sustained though filled up before the defuncts death , albeit it was offered to be proven by the nottar and w●tnesses insert , that the defunct gave warrand so to fill it up , but it was sustained as to the disposition of the moveables as a legacy , in so far as the defunct could legat , which may subsist though the nomination of the executor be wanting or void , iuly . . daughters of so●ityay contra the eldest daughter . testament vide clause december , . windrham contra el●is ▪ thirlage was found constitute by long custom of payment of intown multure in mollendino reg●o , but was not extended to the te●nds of that barony though possest promiscu● far above fou●ty yea●s , without more then custom , and was not excluded by the feuers of the barony their feus granted by the king cum mollendini● & mul●uri● in the tene●das only , which was thought but past in the exchequer of course without observation ▪ ianuary . . steuart contra the feua●s of aberledno ; the like without allowing any part of the cropt multure free for expences of labour , and hinds-corn , but only the seed , horse-corn and teind , ianuary . . nicolson contra f●uars of tillicutrie . thirlage was sound constitute by an old decreet against the tennents possessors , without a calling their master , and long possession conform thereupon , albeit the heret●r was infe●t cum mollendi●●●● ▪ and that witnesses being examined hinc inde conce●ning the possession and interruption , by going sometimes to other mi●ns were proven , yet not so frequently as might not be olandestine , iune ▪ . collonel montgomerie contra w●lla●e and r●ie . thirlage was inferred where the feuer of the miln was infeft in the miln with the mul●ures of the lands in question per expressum , and was in possession of insuck●n multure thereof fourty years , albeit the defende● was infeft before , without the burden of astriction , and did sometimes go to other m●●ns , which being frequent in all astrictions , was found not to be a competent interruption iune ● , . hereto● of the miln of k●thick contra feuars . thirlage was infe●red by infeftment of a miln with the multures &c. generally , with a precept from a bishop then heretor of the lands in question , ordaining his tennents to pay their multu●es to that miln , which with long possession was found sufficient ▪ albeit it had no consent of a chapter , december ▪ ● , v●●tch contra duncan . thirlage being constitute by an infeftment from him who 〈◊〉 〈◊〉 of land and miln , was found no to be prejudgeed upon the alleadged insu●●●ciency of the miln , unless the insufficiency were alleadged to be through the fault of the hereto● of the miln , february , . heretors of 〈◊〉 contra fe●ars . thirlage was not inferre● by an infef●ment of ●ands with such a miln and the multures used and wo●t , which was not extended to l●nds of another barony ●olden of another superiour , though they then belonged to the dispone● , and were in use to come to that miln , december ▪ . earl of cassils contra tennents of dalmortoun . thirlage though constitute by a vassal , hath no e●●ect against the superiour during the vassals ward , unless the superiour consented , neither is his consent inferred by his receiving an assignay to the appryzing with reservation of the multures in the assignation , unless that reservation had been in the charter , ibidem . thirlage in a vassals charter to the supe●iours miln , was ●ound not to infer multures upon the vassal , though he mov●d his tennents to come to his own miln , and got a g●ea●er duty therefore , but that the tennents were only lyable personally for abs●racting , december , . earl of cassils contra sheriff of ●alloway and tennents of a●●hn●troch . thirlage constitute by infeftment bea●ing mult●res and sequels , was found that the ordinary miln-se●vices to the miln damn and miln sto●●es was included in the right , unless by paction or pres●ription the same was taken away , february ▪ . mai●land contra l●●●y . tocher being proportionable and suteable to the parties , was ●ound a cause o●erous ad 〈…〉 december ▪ . burnet contra lepers . trads-men in suburbs were ●ound not to be simply excluded from working in subu●bs of burg●●s by the ● ▪ act par. , but that they should not work to the ●nhabitan●s of the burgh ▪ december . . weavers of pearth contra weavers of the bridgend of pearth . transacton was not inferred by giving a bond for the same sum in the decreet and chap●●on thereupon , se●ng there was no abatement obtained , iuly . . row contra houstoun . transferrence of an old summons w●s stoped , where the first executions were new and not abidden by , ianuary ▪ . wilson a●d chalmers contra transferrence of a cau●e that had lien long over , was found sufficient to give processe in the principal cause and not to require any other walkning , february . . lord saltoun contra saltoun and rothimay . trvst of an assignation to the cedents behove , was found proven by witnesses ex officio upon presumptions , the matter having lien long over , and it being instructed that the assignation was never delivered to the assigney , but in the hands of the writer , and some missives were adduced to instruct the trust , though not proven holograph but by comparison of some o●her writs , february ▪ . viscount of king ●toun contra collonel eull●rtoun ▪ trust inst●●cting a bond to be to another ●arties behove by presumption was sustained , ianuary , . executors of stevinson contra crawfo●rd . trust in a di●position of lands being to prevent the rigor of creditors , the person intrusted was found to have no power to receive more of the debts componed for than he truely payed , albeit there was no express trust as to componing or paying of su●s , november . . maxwel contra maxwell . trust of an assignation to the behove of a third party , was found where the assignay acknowledged that he received the assignation from that party on thir terms , that what ●●e should get by it should be allowed in a decreet due to him by that party , which therefore was found to make the assignation to the parties behove , though ●t was not acknowledged that that party had the assignation blank , and therefore an obligement by that party to relieve the debitor of the deb● , was found equivalent to a discharge and to exclude the assignay , december ▪ . mont●●●th ●ontr● laird of glorre● . trust vide diligence , december . . casse contra wa●t . trust was found probable not only by writ or oath of party , but also by evidences and adminicles , whereupon witnesses ex officio were examined , february . . ru●e contra rule . vpon trust of an assignation to an appryzing , witnesses , ex officio were examined on all circumstances , february . . earl of annanda●l contra hume and other creditors of hume . trust in bonds and personal righ●s were found not ●o constitute the sums in bonis defuncti in the intrusted perso● , but that the trust might be proven by writ against the nearest of kin of the intrusted person , and against the debitor for making payment , without necessity of confirming th● bond that was in the name of the intrusted person , iu●e ▪ ▪ street contra hume of br●●●field . trust of a gift of escheat to be to the behove of the vassal , was ●ound probable by the witnesse● inser● in the gift and the superiours o●th iune . . scot contra langt●●n . trust of a disposition of land for payment of the instrusted person , and then of the intruste●s creditors , some of whom had appryzed from him and were infeft , the person intrusted was not found in capacity to pay other cieditors , and prefer them to these who had done more timely diligence , though the inhibition and appryzing was not against the intrusted person , iuly . . crawfoord contra anderson . a tvtors oath was found not relevant to prove a condi●ion or agreement with the defunct against the pupil , though there were concurring probabilities and testifica●es december . ● . ecles contra ecles . tutor vide assignay , ramsay contra earl of wintoun . a tutor or his assignay was found to have no process against his pupil 〈◊〉 his tutor compts were ended , ex presumptione juris , that the assignation was procured by the pupils means and to his behove , iu●y . . cranstoun contra earl of wintoun . a tut●ix her assignation though not formal , bearing the tutrix as taking burden for the pupil and not the pupils name also assigning , yet was sustained , iune . . iustice contra earl of queen●berry . a tutor was not found lyable for annualrent of his pupils annua●rent of considerable sums from the several years they were due , but that once in his tutory he was obliged to uplift the same , though in secure creditors and great mens hands , and that he was obliged to pay or reimploy them at the end of his tutory , and so was found lyable for the annualrent of the annualrent a finita tutela , though it was not uplifted , ianuary . . kintor contra boyd . a tutory was found not to be instructed by a confirmation bearing , that the tutor accepted and made faith , without warrand under his hand , or some adminicles to astruct it , though the confirmation was thirty seven years since , ianuary . . kirktoun contra laird of hunthill . a tutor was not found proven by his discharging as tutor testamentar , where by the testament it was evident he was but overseer , iune . . swintoun contra notman . a tutors oath was found valide against the pupil , as to the tutors intromission in name of the pupil , yet so that the tutor deponing that he did not remember the quantity and price , he was not holden as con●est as if he were a party , but might be compelled by horning and caption to depone as a witness , iune . . cant contra lock . a tutor was found lyable to uplift his pupils annua●rents , and to re-imploy them somtime during the tutory , and therefore was sound lyable for annualrent of the same post 〈◊〉 tutelam , but if he dyed within the tutory , he was not found lyable for annualrents of annu●lrents , being in secure hands but not uplifted , iuly . . boyd contra kintore a tutor pursuing a mother for delivery of her daughter his pupil to be educate with some of her fathers friends , having a great portion out of his estate , that she might not be abused in her marriage by her mother or her freinds ; the same was sustained after the pupils age of eleven years , though the mother was unmarried and the daughter vali●udinary , february . . laird of dury contra lady dury . a tutor was found to have a year to imploy sums not bearing annualrent , and not to be obliged to uplift sums where the pupil was fully secured , or where on a sudden the debitor break , but was found lyable for all diligence according to the debitors condition by horning , caption , arrestment , poinding and appryzing of the debitors estate , which should be known to him , and not for horning only , iuly . . ste●in contra boyd . in a tutor compt the tutor was not found lyable for the services he got to the pupils tennents in kind , and that where he was super-expended , a decreet might be at his instance against the pupil on the pupils own process , ianuary . grant contra grant. a tutor was found lyable to compt as tutor and not as pro-tutor , on production of a writ under his hand , designing himself and acting as tutor testamentar , without necessity to the pursuer to produce the testament , december . . s●atoun contra s●atoun . a tutor was found lyable for the annualrent of his pupils sums , which were in responsal debitors hands , but not to re-imploy the same upon annualrent , in respect the tutor dyed durante tutela , and that what annualrents he had received , his successors were only lyable for the same , and the annualrent thereof from the time the pupil past pupillarity , it being sufficient to lift and imploy the annualrents of pupils sums at any time during the ordinary course of the tutory , af●er the pupils passing pupillarity , iuly , . kintor contra the heirs and successors of logan of coatfi●ld ▪ this was stopped on the pur●uers bill , till it were furder heard upon the grounds of the first decision . a tutor having cited his pupils friends on both sides , that ●t might be declared by the lords that the pupils lands were ●racked above the true value , and that they w●re not able to pay their rents without casting the land waste , no party appearing , the process being considered by the lords , they granted commission to gentlemen in the countrey to try the matter of fact and report , february . . tutor of colz●an contra nearest of kin of the pupil . a tutory granted to two , and bearing them to be joyntly , was found void by the death of either , ianuary . . drummond of riccartoun contra feuars of bothkenneth . tvtor dative of a furious person was found not to exclude the nearest agnat as tutor of law to be served quandocunque , though the idiot was necessitate to pay upon the tutors citation to make forthcoming , ianuary . . mr. iames steuart and robert his tutor dative contra spreul . v●●●mus haeres being gifted , was found to have no effect till there be be a declarator thereupon in the same way as in bastardy , iuly . . laird of balnagoun contra dingwall , the like iuly . . crawfoord contra town of edinb . vse of payment of a duty to a minister for teinds , and his discharge for the whole teinds for a long time , was found sufficient against him who had the tack and prorogation of these teinds , until interruption by citation or inhibition , thogh the duty was very smal , & the minister was but stipendia● having that quantity allocat out of these teinds , ianuary . . earl of athol co●tra robertson of strowan . vsvry was not inferred by a creditors taking a tack for his furder , security , for so much victual , or . shilling less than the 〈◊〉 , at the setters option , that abatement being for the setters pains and hazard in getting in the price , november . . scot contra laird of barefoord . viccarage was not found due out of yeards which were apar● of the chanons portions , which had never paid viccarage , iune . . minister of elgin contra his pa●ochioners . the violent profites of an ox sp●ilzied in labouring time , was found to be . shilling every day during the labouring time , february . . lord iustice cle●k contra hume of linthil . vitiation of a contract of marriage diminishing the tocher and ioyntu●e by the husband and father after the marriage , was found not to prejudge the wife who consented not , but her right was extended as before the vitiation , in prejudice of the husbands creditors infeft by him , albeit the contract being registrate , the vi●●ation could not not appear to the creditors when they lent their money , iune . . hunter contra the creditors of peter . vitiovs intromission was not ●lided because the defunct dyed rebel at the horn , and so there was nothing in bonis defuncti , unless the defender alleadged he had the gift of escheat ante motam litem , february . . gray contra dalgarno . vitious intromission was retrinched to single avail , because the defender entered in possession by a disposition of the moveables , though no delivery or possession was in the defuncts life , february . . chalmers contra dalga●no . vitious intromission was purged by the intrometters confirming within year and day after the defuncts death , the executry being his wifes , albeit after intenting of the pursuers cause , ianuary . . stevinson contra ker and others . vitious intromission was purged by a disposition and instrument of possession in the disponers lifetime , though the defender judicially acknowledged there was no natural possession , iuly . . brown contra lawson . vitious intromission was not sustained after the intrometters death , against any representing him , where there was nothing done to instruct it in his life , further than quo ad val●rem , but not as an universal passive title , iuly . . cranstoun contra wilkison . vitious intromission was elided , because the intrometter had warrand from the donator of the defuncts escheat ▪ thogh there was no declarator , seing the warrand and intromission was ante notam litem . iuly . . innes contra watson . vitious intromission was not inferred by intrometting with . pound , the intrometter having after his intromission confirmed himself executor , and omited that sum , but was only found lyable for the sum it self , february . . r●oth contra cowan . vitious intromission was found not receivable by defense against an assignay , viz. that the cedent who was creditor to a defunct , was vitious intrometter with his goods and so debitor , the assignation being for an onerous cause , ianuary . . captain ramsoy contra henrison . ward was found not to fall by the death of an appryzer who had charged , unless he had put the superiour in culpa , by prese●ting a charter to be subscribed by him , and offering a sum with a bond , and caution for what more the lords should modifie for that years rent , and that therefore the ward fell by the death of him against whom the appryzing was led , february . . black contra french. ward being gifted by the king , the donat●r was found to have interest to call for production of the defender her sister ●●d fathers retoures only , for instructing of what was ward , and not their other evidents , december . . earl of rothes contra tutors of buccle●gh . ward was found to take no place where the defunct was denuded by an appryzing and the appryzer infeit , albeit the appryzing was on a bond granted to his mother , to the be●ove of her son , which was not found to be a fraudulent precipitation to exclude ward , it being granted in the defuncts leige pouftie , but so soon as the appryzing was satisfied either in the defuncts time or after his death , the ward of the defunct's heir took effect , iuly . . lindsay of mo●nt contra maxwel of kirkonnel . a ward was not found to give right to the donatar , to cause an appryzer restrict to as much of the rent as will satisfie his ann●alrent , that the donator might have the superplus , by the clause in the act of parliament . betwixt debitor and creditor , which was only found proper and personal to the creditor and his heir , inter eosdem . ward and marriage of a party killed in the late war , was found not to be taken off by the act of parliament . declaring the ward and marriages of these that should die in that service not to fall , which service was found to terminate by the next pacification ann● . here parties were agreed , so that it was not acuratly debated , or determined whether the salvo in the act resc●nding these parliaments during the troubles , except as to private rights acquired thereby , would reach to the exemption of ward and marriage by the act . being held an exemption during all the troubles , should be so interprete now , which was not proposed , iuly . . hadden contra laird of glenegi●s . wakning was not ●ound necessary , where upon hearing parties decre●ts were pronunced , though it was sto●ed upon a bill , and lay several years over ▪ which stop imports not a recalling of the d●creet , but a stoping the extracting of it till the parties might be heard upon the grounds of the bill , iuly . . brodit of l●th●m and the la● of ri●cartoun contra the lord kenmuire . warning was sustained at an old kirk , albeit divine worship was at a new kirk not erected by parliament , or though erected , if hornings and inhibitions used to be at the old kitk , ianuary ▪ . earl of arg●le contra campbel . warning not bearing that it was read at the kirk door in ordinary time of divine service , was admitted to be so mended at the bar , ianuary . . inter eosdem . warning at the kirk and house was sustained on fourly days , though the party warned was out of ●he countrey , the act of parliament anent warning requiring no further , february . . mcbrair contra . warrandice was ●ound implyed of a legacy in realiena scienter legata , iune . . murray contra executors of rutherfoord . absolute warrandice was ordained to be contained in assignations of bonds for an equivalent cause , as the price of goods , and that it should bear expresly , not only that the debts were due , but that the debitor was solvendo , iune . . moffat contra black. warrandice being absol●te in an assignation by a creditor to a cautioner , that he might get his relief , bearing ( against all deadly as law will ) was found not to extend to the debitors being solvendo , iune . . hajcontra nicols●n . absolute warrandice was found implyed in a contract of marriage , wherein a mother as executor gave such a sum in full satisfaction of a daughters interest , and that only to warrand against the defuncts seperveening debt , as to the superplus above the sum accepted by the daughter , but simply for all the portion , unless the mother would compt for all her daughters share , november . . fleming contra fleming and her spouse . warrandice was found to give recourse , though th●re could be no present distress , seing there was a clear ground of further distress by the warranders own deed , granting double dispositions , iuly ● . . bur●et contra iohnsto●● . warrandice absolute in a disposition of lands , was found to extend to warrand lands designed for a horse and cows grass by a subsequent law , albeit the law extended in self as if it had been of a former date with another abroga● law , seing these laws did differ from the former ▪ and did not revive it , iuly . . watson contra law. warrandice being special by infe●tment , though base and ex intervallo , and after the principal in●eftment , is effectual for recourse , without declarator , and being cled with possession of the principal lands , and can only be excluded by a possessory judgement upon ▪ years after the eviction , but by no possession how long soever before the eviction , february , . forbes contra innes . warrandice in a disposition bearing the seller holds ward , that therefore he should warrand the buyers , who were to ●old few of him , and to relieve them of any ward that should thereafter fall , which was ●ound to be effectual against the sellers heir , tho●gh denuded of the superiority , and not to burden the present superiour , iuly . . colquhoun contra st●uart of bars●ub . warrandice in whatsoever terms conceived , was found to extend no furt●er than t●e sums paid out , and the expences of the party ▪ ianuary . . boyl of kelburn contra wilkie . a wif's contract of marriage was found a debt 〈◊〉 to other personal credi●ors of the defunct , febru●ry . . crawfoord contra earl of murray . a wi●e and her freinds at whose instance execution of her contract was provided , was admitted to pursue a reduction of a deed done by the husband in prejudice thereof du●ing ●is life , february . ● . leck●● contra 〈◊〉 . a wife was found conveenable without calling the husband , he being . years out of the countrey , and she repute widow , iune . . hay contra corstorphin . a wifes oath was found to prove against the husband , where the matter was litigious , by a process against the wife before her marriage , iuly . , edgar contra murray . a wifes infeftment was found valide till her tocher were repaid , albeit the marriage was disolved w●thin year and day , iu●y . . petrie contra paul. a wifes furnishings even for her mournings for her husbands funerals , being of that quality that should have mourning , was found not to be the wifes debt but the husbands executors , november . . murray contra ne●lson . a wifes infeftment stant● martrimonio being 〈◊〉 and beside her contract , was found not to be validat by her husband possession , that his creditors might not quarrel it by exception , it being anterior to the infeftment , december . . lady craigie and greenhead contra lord lour , vide clause , december . . young contra buchannan . a wife having her husbands bond in her hand , and impignora●ing in 〈◊〉 . pound , it was sustained against the husband , upon presumption of her having warrand by having the bond , february . . paterson contra pringle . a w●●es infeftment in liferent was sustained by her seasine , adminiculat by her contract of marriage , albeit the sealine was not immedia●ly on the contract but related a bond granted for the same cause , which was not produced , i●ne . . norvel contra steuart . a wi●e was ●ound not to be excluded from her liferent , because her to●lier was not payed , she not being obliged therefore , albeit the contract bear , that the tocher being payed it should be so applyed upon security , iuly . . mack●● contra steuart . a wife was not found lyable to her husbands creditors appryzing his j●s meri●● , for the rent of houses possessed by her self for their aliment , as to years preceeding the intenting of the ca●se , december . . smith and duncan c●ntra robertson . here the creditors had access to the wife 's other tenements , though the husband shortly after his marriage left the countrey , and the wife had obtained d●●reet of adherence and was proceeding to divorce . a wifes obligation with her husband for a firm obliging them to pay conjunctly and severaly , and also obliging to 〈◊〉 an annualrent out of either of their lands ▪ was found null as to the obligement to infeft even as to the wife , de●●mber . . bleis contra keith . a wifes renunciation of a part of her joynture after her contract of marriage and first proclamation , was reduced as being done without consent of her husband , albeit the husband knew of the 〈◊〉 and yet went on in the marriage , and albeit he was an unsuitable match to her , and that not only as to t●e husbands interest and during his life , but also simply as to the wife , ia●●ary . . lady bu●e and her husband contra sheriff of 〈◊〉 . a wife was found not to have interest to pursue the defuncts debi●ors for her half , but only the executors ▪ december . . lady cranburn contra lord bu●ley and others . a wifes accompt of furniture for her person subscribed by her , was found valid● , albe●t she was then married and a ●●i●●or , without instructing the goods received and just price , she being p●rsona illustris , and the accompt not great for her own furniture , february . . 〈◊〉 contra dutches of monmouth . a wi●e cled with a husband was found lyable for drugs furnished to her and her children at her command , ●he having a peculiar estate , wherefrom her husband was excluded , a●d he be●ng ou● of the countrey , december . . gairn● contra arthur . a wife acquiring lands , was found not to presume that the same were acquired by the husbands money , and to belong to him and his heirs , unless it were instructed that she had heretables or other sum● exempted a commun●one 〈◊〉 , especially seing the wi●e dispo●ed her lands to another , and her husband as baillie of the burgh gave seasine thereon , ianuary . . brown contra nappi●land . a wife predeceassing , her third of her husbands moveables was found not ●o comprehend the best of ilk kind , but that it ●el●oved to be l●● aside as heirship moveable , wherein the wife had no interest , december . . go●●●et contra n●ir● , though the husband was al●ve and could then have no heir . a wife in he● cont●act of marriage having discharged and renu●ced 〈◊〉 here●able sum due to her in favours of her debitors , who gave a new heretable security of the same date to her ●uture spo●se , the wif● having made her husband her executor and lega●ar , a●d dying within year and day , the discharge and renunciation g●anted in favours o● a third party , was found not ●o be 〈◊〉 by the dissolu●ion of the marriage , but that the old security continued i●●ovar by the new ●ecurity granted to the husband , who was only obliged to restore the ●um in that security to his wifes ex●u●ors , as a moveable obligation ▪ and not to her heir , and that so it belonged to the husband himself as executor , dec. . . scot con . ai●on . a wi●e was found to be burdened with her husband● her●table deb●s , december . . mckenz●e ●ontra rober●son . a wi●e purs●ing for her provision by her con●ract of marriage ▪ which bear , her to be provided to the annualrent of her tocher and as much more , the same was sound effectual , and that the wife was not obliged to instruct that her tocher was payed , seing she was no● obliged for payment thereo● in the contract , an● the husband having only a ●um provided to himself and his wi●e in life●ent , and after their deceasses to the mans 〈◊〉 daughters by a former marriage , the wife having confirmed the same for implement of her contract , was pr●●erred to the daughters , and their substi●u●ion was ●ound nu●l by the act of parliament . without ▪ reduction , ianuary . ● . syms contra brown. the like before , february . . campbel contra campbel . a ●ifes infe●●ment upon her contract of marriage was sustained , though it bear that the husband should imploy the tocher & an equivalent sum for the wife in li●erent , albei● the tocher was never paid by the father , not by the husbands neglect , but by the fathers insolvency from the time of the con●ract , seing the husband did not object t●● same , but granted infeftment , ian , . . hunter c●ntra credi●ors of pet●r . witnesse● were admitted to prove setting down of marches by arbiters , february . . lord torph●hen cont●a . witnesses were admitted to prove a warrand and command , being the messengers domesticks and so 〈◊〉 persons , ianuary , . . ma●●o●n contra hunter . witnesses were admitted to prove the loan of books , ●hough far above . pound , ianuary . . scots contra fl●●cher . witnesses were ●ound to prove a bargain of victual a●●er ● . years time , iuly . . ma●●h●son contra gib . witnesses testimonies taken by the commissars in a divorce cr●ved ●o be reduced , was found not to be published , but the clerk was ordained to give a note of their names , design●tion , age and purging of partial council and the like , b●t not of the particulars in the cause , ianuary . . laird of mil●toun contra lady mil●toun . witnesses were not admitted to prove a bond blank in the creditors name , delivered to a desender , to infer an obligement to re-deliver the same , february ● . . iohnstoun contra iohnstoun . witnesses were found to prove adultery , albeit their testimonies were not of the same individual act at the same time and place , adultery being crimen genericum inferred by re●●erable acts , and though neither of the witnesses knew the woman with whom the adultery was committed , but heard her named at the time they saw the acts by the adulterers servant , and that some other witnesses knew that she was not the adulterers wife , february . . lady milntoun contra laird of milntoun ▪ witnesses testimonies were found not to be in●ringed upon theirown re-examinaton in a second instance , as being suborned or corrupted post ●us acquisi●un● by the first sentence ▪ albeit in the first testimonies they were not purged of partial council , ibidem . witnesses were found sufficient to prove a ●argain to have been anterio● to a writ , and that writ was reduced upon that sentence as posterior and prejudicial to the bargain , ianuary . . creditors of pollock contra pollock . witnesses were admitted to prove a merchant compt as to articles more then three years preceeding the citation , it being a cur●ent accompt , though begun by the defunct and continued af●er h●● deceass by his funeral provision , and by the chamber●●●● of his heir then a pupil , seing three years interv●e●ed not in any part of the accompt , february . . grahame contra laird of stan●byres . witnesses were admitted to prove the v●●iation of a contract of marriage , and not to annul it but to extend it as it was before the vi●iation , iune . . hunter contra creditors of peter . witnesses were admitted to prove intromission with mails and duties of tennents , though silver rent , intrometted by one who was infe●t in an annualrent out of the tenements , albeit by the intromission , the principal sum for which the annualrent was constitute , would be satisfied , and the infe●tment extinct , february . . wishart contra arthur . witnesses were admitted to prove an appryzing to be to the behove of the apparent heir , in respect of this concurrent presump●ion , that the appryzing was assigned to the appear and heirs brother , february , . gordo●n contra mcculloch . witnesses were admitted to prove● ministers possession of ●ands to be by tollerance of an her●●or , and ●o not ●o be a gl●ib belonging to the kirk , where the ministers possession was decen●●lis & trien●alis , but that writ was necessary ( if his possession ha●t been for . years ) to prove the tollerance , iune . . minister of contra duke of ●al●leugh . witnesses ex officio were received for proving the delivery of a bond blank in the creditors name ▪ the matter being betwixt brother and sister where trust was very presum●able , february . . iohnstoun contra iohnstoun . witnesses were examined ●x officio to prove warrant or command to a deed done in prejudice of him , who had the commission to do the same deed , and could have ●indered others , february . . lord r●●toun contra laird of lambertoun . witnesses and the writer of a disposition were examined ex officio on th● terms of the treaty , and whether when th● writ was read , being an absolute disposition , it was not read as being redeemable , iuly . . allan contra fairie . witnesses ex officio being admitted hinc inde , not the greatest quant●ty proven by two , but the quantity proven most pregnantly , was followed , november . . lord iustice clerk contra laird of lambertoun . witnesses ex officio were examined to instruct the cause of a bond to be by arbitriment and exorbitant , it being . years dorment without annualrent , and the sum filled up with a different hand , february . . chis●holm contra witnesses taken ex officio proving the imploying of a wright in his wo●● in a lodging possest by the ●mployer , and his frequent direction anent the work , were found to prove against his heir , though above . pound , and though direction alone without sensible acts is only probable by writ or oath , iuly . . thomson contra earl of glencairn . witnesses ex officio 〈◊〉 ●●de examined in a reduction on death bed , albeit the day of compearance was not come , to prevent the death or collusion of the most necessary witnesses , february . . creditors of my lord balmerino and cowper contra lady cowper . witnesses ex officio were ordained to be examined before answer ▪ for clearing a trust of the right of ●n appryzing ▪ upon divers probabilities hinc inde alleadged , february . . earl of annandail contra 〈◊〉 and credi●ors of hume . a witness examined ex officio prevaricating in his oath , first denying and then acknowledging the same thing , was declared in famous and set on the pillory with a paper on his ●ace , signifying his fault , iu●y . . barclay contra b●rclay . witnesses ex officio being examined were admitted to take away a bond wholly blank , or blank in the creditors name , f●bruary , & . . iack contra boyd of ●●nkil , and the earl of k●ng●orn con●ra laird of p●●arro . witnesses ex officio were examined anent the being of a bond amongst the writs of a creditor or his factor , that thereby the debitor might be liberat of the bond as being retired , but was not admitted to prove payment or sa●isfaction thereof , though it was an old bond , without any diligence or payment of annualrent for a long time , february . . n●●peir contra earl of eg●●toun . witnesses ex officio were examined in a circumvention for annulling a disposition made by a simple per●on of his whole esta●e , without reservation , on these points , whether the writ was read to him when he subscribed , whether he was drunk , so that rea●on and judgement was disordered , and what motives were used to make him subscribe , iuly . . stev●ns contra ne●lson . witnesses insert in a writ and the writer were ●ound to have ●ccession as users of that writ as false , yet was examined , though they were socij crimin●s , and forgers by their own confession , being in an imporbation ▪ ianuary . . lady to●vi● contra cap●ain barclay . a wodsetter was found to comp● for the superplus above his ●en● , though the wo●set wa● before the act of parliament , . betwixt debitor and creditor , albeit therein the vsurpers act , and all such acts made or to be made were ●enunced , ianuary . . laird of laming●oun con●ra che●slie . a wodset bearing in the reversion a tack ●a● within the worth of the land to be given after redemption , was sustained as not vsur●ry , but the wod●etter was at a great loss by a liferent med●o ●●mpore , iune . . laird of polwar● contra hu●● . a wodsetter pursuing for his money , was found not to have access thereto tilll he recovered the possession taken from him by a third party intruding , seing he did not de recenti intimate the in●rusion , and demand his money , february . . hopringle of torsonce contra ker of s●nderland-hill . a wodset being redeemed● upon an order used , though without citation of all parties having interest at the mercat cross on the declara●or , albeit thereby the wodsetters wi●e , who had a base subaltern infeftment from him in liferent , was excluded , and the redeemer was not found obliged to know the same , albeit registrate in the register of seasines , iuly ● . . hamiltoun contra her tennents . a wodset by a father to a son redeemable by the father during his li●e from his son on a rosenoble , be●ng craved to be declared , the son having appryzed , and thereupon alleadging that he had right to the reversion a● and while his a●pri●ing were redeemed , and till that , his father could not redeem . which at first was susta●ned , the case of the son being favourable , the father having disponed the whole right to a second wi●e , but being thereafter deba●ed in presentia , the lords were of different judgements and decided not , in respect the case seemed to hinder debitors to redeem a●terior compryzings , till they redeemed all pestelor compryzings , december . . reg contra ●eg . a wodset containing a clause of reversion for granting a tack for certain years after the redemption , was found not to be derogat from by the act betwixt debitor and creditor , but that it might be quarrelable by the act . parliament . if the tack were set but about the half of the true rent as it was worth the time of granting the wods●t , and so being vsu●ary , ● february . . lord l●y contra porteo●s . wodsetters having wodset before the act of parliament . were found comptable for the super●lus more than pays their annualrent , not from the date of the act betwixt debitor and creditor , but from the o●●er made to give them security upon quiting their wodsets , and that notwithstanding there was in the wodset a clause renuncing the vsurpets act , suspending the payment of principal sums , and ordaining lands to be taken in satisfaction thereof , and all acts of that nature , and albeit there be an exception in the said act , when the benefite of such acts are renunced , which was not found to relate to the clause anent wodsets , which is posterior to that exception , february . . lord borthwick contra his wodse●ters . wodsetters before the act . choosing to retain the possession , were found comptable for the superplus , not from the summons , but from the date of the offer to find caution , which was admitted after the citation , but it was found that the wodsetters were not bound to declare their option , whether to quite the wodset or restrict till caution were offered , february . . ogilbie contra a wodsetter by his wodset being obliged upon payment to renunce , and by his missive letter acknowledging payment , his son and apparent heir having received a disposition of his other estate without a cause on●rous after the wodset , but before the missive letter , was found lyable as l●crative successor to enter to the wodset right and to renunce , ianuary . . earl of kinghorn contra laird of vdn●y . a wodsetter was found comptable for the superplus after o●●er to find caution , though he had a posterior ratification and ●ik after the act . iune . . scot contra langton . a writ ●iz ▪ a bill of exchange by a drover sub●cribed only by a mark , and another hand writing such a mans mark , the lords did not allow it as probative , but before answer ordained the writer and witnesses to be examined ex officio , february . . brown contra iohnstoun of clacharie . a writ was sustained though subscribed but by one nottar , being a contract of marr●age , whereon marriage followed , iuly . . breadi● contra breadie and murie . a writ was found not to prove , being the act of a town council without citation or subscription of the party , bearing consent to a penalty imposed upon unfree-men . february . . town of linli●hg●w contra unfree-men of borrowstownness . a writ was sustained though not delivered being in ●avours of the granters son though a bastard , february . . aik●nhead contra aik●nhead . a writ wanting w●tnesses designed , was not sustained simply on designation being a very old writ without other adminic●es to astruct , seing the improbation by such witnesses being dead , was not competent as in recenti , iuly . . colvil contra executors of the lord colvil . a writ viz. a bond was found not taken away by witnesses offering to prove payment ▪ though the bond was made in england to english-men , where that probation is competent , being made by scots-men residing in scotland and registrate here , and so to be regulat by the law of scotland , december . . scot contra anderson and neilson . a writ was not found null as wanting writer and witnesses insert , being made secundum consuetudinem loc● in ireland , fe●uary . . elphing stoun of s●lmes contra lord rollo . a writ quarre●●ed as null ▪ the witnesses not being designed , was not sustained , unless living witnesses were condescended on , or adminicles to astruct the verity of the debt , february . . falco●er contra earl of king●orn . a writ alleadged null because the writer was not designed ▪ was sustained upon designing the ●riter , albeit the writ was old and appeared to have been blank in the sum , creditor , and debitor decem. . . cunninghame contra duke of hamiltoun . a writ viz. a bond was taken away by this manner of probation by oath that it was for a prentice-see , and by witnesses that the prentice was put away within a year and an half after the entry , as to a proportional part of the prentice-see to the time thereafter , iune . . aikman contra a writ being no compt book but some louse scheduls , was found not probable to instruct a debt against the writer of it , who deponed that he wrot the same , but declared also that he had payed the sum , iuly . . nasmith contra bower . a writ wanting witnesses being offered to be proven holograph , albeit it cannot instruct its own date , or that it was subscribed before the defunct was on death-bed , yet the alleadgance on death-bed was not sustained by way of exception or duply , ianuary . . sea●on and the laird of touch contra dunda● . a writ being an assignation to an appryzing , was taken away partly by the assigneys oath , and partly by witnesses ex officio , proving that the appryzing with the assignation blank in the assigneys name was retired , and lying by the assigneys father who was debitor in the sums and amongst his writs the time of his death , february . ● . creditors of the lord gray contra lord gray . a writ was not sustained as having but one witne●s to that subscription , though another witness generally designed , deponed he saw not that party subscrib● , but that the subscription was his hand-writ to the best of his knowledge . and several other subscriptions were adduced to as●ruct the same comparatione l●terarum , seing there were not two witnesses insert to this subscription , ianuary . , dow of ar●ho contra ca●pbel of calder . a writ being a discharge by a master to his tennents was sustained , though without witnesses and not holograph , and without necessity to prove the truth of the subscription in respect of the common custom to take such discharges , iuly . . s●haw contra tennents . a writ being a bond was found not probative , having only the clause of registration and subscription on the one side ▪ and all the rest on the other side with another hand , unless it were astructed with other evidences and adminicles , iuly . . hamil●oun contra symontoun . a writ subscribed by nottars was sound null because the nottars subscription said that he subscribed for the party , but bear not at his command , which was not allowed to be astructed by the witnesses insert , iuly . . philip contra cheap . a writ being a bond subscribed with initial letters was sustained , it being found proven the debitor was accustomed so to subscribe , and there being three witnesses and the writer examined , whether de facto he subscribed the bond , two affirmed , and two denyed their subscriptions , the creditor● oath being taken ex officio , affirmed the truth of the debitors subscription , who being a person of good fame and credit , and no improbation insisted in , the bond was sustained , novomber . . laird cult●ra● contra chapman . a writ having lyen . years dormi●nt , witnesses and arbiters were examined ●x officio , whether or not the writ was put blank in the arbiters hands , and being found by the party filled up with five times so much as was their mind , though there was no adminicle in writ to evidence the cause thereof , upon consideration of the long latency of it and the necessity of money the party was in who had it , ianuary . . chis●h●lme contra rennies . a writ subscribed by a principal party and certain cautioners , bearing the day , place and witnesses of their subscription , and af●er the witnesses names bearing as subscribed by another party as cautioner at blank , without any thing following either of the date or witnesses ; the bond was not sustained against that caut●oner upon the creditors condescending on the date and witnesses to be the same with these of the principal and the other cautioners , but the lords ex officio ordained the witnesses to be examined whether they saw the cautioner in question subscribe with the principal and other cautioners , reserving to their own consideration what the testimonies ●hould operat , ianuary . . magistrates of contra earl of findlator . a writ wanting witnesses being pursued on against the subscribers heir , and being offered to be proven holograph , he was admitted to alleadge that though holograph it could not prove it self to be of the da●● it bear , but was presumed to be subscribed in l●cto , which was sustained being thus proposed without a reduction , seing the bond was not sufficient of it self but needed probation , and the alleadgeance of death-bed was instantly verified by the presumption of law , that the writ instructed not it self to be before the defuncts sickness , november . . calderwood contra iohnstoun . a writ requiring two nottars , subscribed but by one was found to be valide , if the verity of the subscription were proven by the subscribers oath , and that it might not be res●led from , but that the oath might not be taken in prejudice of an assignay for an onerous cause , december . . swintoun contra brown. writ cannat be taken away by witnesses , was ●ound not to infer that witnesses cannot be admitted to prove a bargain anteriour to the writ , upon which bargain the writ may be reduced as posterior in prejudice of creditors , seing the payment or discharge of the writ is not proven by the witnesses , ianuary . . creditors of pollo●k contra pollock ▪ a writ being a bill of exchange subscribed only by a mark and not initial letters was found to prove , there being some witnesses who deponed they saw the mark put to , and others that the party being a merchant drover was accustomed so to subscribe bills of considerable sums , which were ordinarly accepted , and answered by him , but this being the first writ sustained by a mark , was only approven by all the circumstances and not to be drawen in example , many of the lords being contrary to the allowing this or any such , february . . brown contra iohnstoun of clacharie . a writ being a tac●● was found null , as not being subscribed by two nottars , though it was subscribed by one and a judicial act of ratification thereof in a baron cou●t , which was not found to supply the want of the other nottar , seing the first nottar was clerk of the sam● court , and all was but one assertion , december . . swintoun contra brown. finis . reports of diverse choice cases in law taken by those late and most judicious prothonotaries of the common pleas, richard brownlow & john goldesborough ; with directions how to proceed in many intricate actions both reall and personall ... ; also a most perfect and exact table, shewing appositely the contents of the whole book. brownlow, richard, - . approx. kb of xml-encoded text transcribed from -bit group-iv tiff page images. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing b estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) reports of diverse choice cases in law taken by those late and most judicious prothonotaries of the common pleas, richard brownlow & john goldesborough ; with directions how to proceed in many intricate actions both reall and personall ... ; also a most perfect and exact table, shewing appositely the contents of the whole book. brownlow, richard, - . goldesborough, john, - . england and wales. court of common pleas. [ ], , [ ], , [ ] p., p. of plates : port. printed by tho. roycroft for matthew walbancke and henry twyford, london : . pt. has title and imprint: reports (a second part) of diverse famous cases in law ... / collected by richard brownlow. london : printed by tho. roycroft for matthew walbancke and henry twyford, . reproduction of original in the british library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in eebo. eebo-tcp aimed to produce large quantities of textual data within the usual project restraints of time and funding, and therefore chose to create diplomatic transcriptions (as opposed to critical editions) with light-touch, mainly structural encoding based on the text encoding initiative (http://www.tei-c.org). the eebo-tcp project was divided into two phases. the , texts created during phase of the project have been released into the public domain as of january . anyone can now take and use these texts for their own purposes, but we respectfully request that due credit and attribution is given to their original source. users should be aware of the process of creating the tcp texts, and therefore of any assumptions that can be made about the data. text selection was based on the new cambridge bibliography of english literature (ncbel). if an author (or for an anonymous work, the title) appears in ncbel, then their works are eligible for inclusion. selection was intended to range over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law reports, digests, etc. -- great britain. - tcp assigned for keying and markup - apex covantage keyed and coded from proquest page images - john latta sampled and proofread - john latta text and markup reviewed and edited - pfs batch review (qc) and xml conversion reports , of diverse choice cases in law . taken by those late and most judicious prothonotaries of the common pleas , richard brownlow , & john goldesborough . esq rs . with directions how to proceed in many intricate actions , both reall and personall , shewing the nature of those actions , and the practice in them ; excellently usefull for the avoyding of many errours heretofore committed in the like proceedings ; fit for all lawyers , attorneys , and practisers of the law. also a most perfect and exact table , shewing appositely the contents of the whole book . solon : 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . london , printed by tho : roycroft , for matthew walbancke , at grays-inne gate , and henry twyford , in vine court in the middle temple , . the publisher to the reader . these reports coming unto my hands , under the commendations of men of so much sufficiency in the knowledge of the lawes , i could doe no lesse then fear that it would prove too obvious a neglect of common good to keepe them in the darke , therefore here i present them to the world , to the end that all men may take that benefit by them now being in print , which some few only have hitherto injoyed by private copies . and indeed i thinke i shall put it beyond dispute , when i name the two worthy , and late famous prothonotaries , m r. brownlow , & m r. goldesborough , whose observations they were , that they will both profit and delight the reader , since there are contained under these heads , viz. actions upon the case , covenant , account , assise , audita querela , debt , ( upon almost all occasions ) dower , ejectment , formedon , partition , quare impedit , replevin , trespas & wast , many excellent conclusions , as well of law , as of the manner of pleadings , demurrers , exceptions , essoins , errors , and the qualities of many vvrits , with other various and profitable learning , in which may be found the number of the roll , for so many as have had the luck of a full debate and definitive sentence . and for the rest , though there is no judgment in them , so as to determine what the law is , yet at least they will afford a very considerable compensation for the readers pains , by opening unto him such matters as are apt for argumentation , and may acquaint his genius with the manner of forensall disputations , from which benefit , to detain you any longer , will deserve a censure ; therefore i remit you to the matter it self , which i am confident ( the printers faults excused ) will easily effect its owne praise beyond my ability . speciall observations and resolutions of the judges of the common pleas . vpon severall actions upon the case , there depending and adjudged . pedley versus langley , hill. . ja. rotulo ; the plaintiff brought his action for these words , you are a bastard , for your father and mother were never married . the defendant pleads that the plaintiff was a bastard , and justifies the words laid : and it was held by the court , that this issue should be tried by the countrey , and not by the bishop , as in other cases . smayles one of the attourneys , &c. versus smith , for these words , he , meaning the plaintiff , took corruptly five marks of brian turnor , being against his own client , for putting off and delaying an assize against him : and after a verdict , exception was taken against the declaration , for that the plaintiff did not expresly alledge that at the time of speaking the words , he was an attourney , but layd it that he had been an attourney . the court held the words would bear action . male versus ket , hill . jac. rotulo . for these words , william male did steal my corn out of my barn. judgement for the plaintiff . the court held that an action would lie for these words , you are a thief and have stollen a cock , which was but petty larceny . cowte versus gilbert , hill. . jac. rotulo . thou art a thief , and hast stollen a tree . judgement , that the plaintiff should take nothing by his writ . the like , thou art a thief , and hast stollen my maiden-head ; no action . harding versus bulman , hill. . jac. the plaintiff declares , that in such a term he had brought an action of case against b. for scandalous words , to which he pleaded not guilty ; and at that triall gave in evidence to the jury , to take away the plaintiffe credit and reputation , that the plaintiff was a common lyar , and recorded in the star-chamber for a common lyar , by reason whereof , the jury gave the plaintiff but very small damage , to the plaintiffs damage of , &c. the defendant pleads not guilty . and it was moved in arrest of judgement , that the action would not lie . and of that opinion the court seemed to be . bridges one of the attourneys , versus playdell , for words , you , meaning the plaintiff , have caused this boy , meaning a. w. then present , to perjure himself . judgement for the plaintiff . stone versus roberts , mich. . jac. rotulo . for these words , thou art a witch and an inchanter , for thou hast bewitched stronges children ; no action lies but if thou say , thou art a witch and hast bewitched children , and that they are wasted and destroyed ; they are actionable . scarlet versus stile , trin. . jac. rotulo . for these words , thou didst steal a sack and curricomb , and i will make thee produce it ; and thou didst steal my fathers wood , and didst give it to a whore. the defendant justifies , that such a day the goods were stollen , and there was a common fame and report that the defendant had stollen them , and upon that report the plaintiff did vehemently suspect that the defendant had stollen them , and thereof did inform a justice of the peace , and complaining of the defendant to the justice , and informing him of the premises , did speak the words before mentioned . if a felony be committed , it is good cause to arrest one for felony , but not to speak words to defame one . if there be two issues in severall counties in trover , and one is tried , and judgement and execution of the costs and damages ; and afterwards the other issue is tried , and costs thereupon , the last is erronious , as to the costs . broccas case . note , trover was brought against husband and wife for goods , which came to the hands of husband and wife , & the conversion was alleadged to be by the husband alone , for the wife could not convert . and the court held that the action would not lie against the wife . mose versus canham , mich. . jac. rotulo . the plaintiff declares , that one levet was indebted in such a summ , and for the payment thereof had delivered to the plaintiff divers goods of the said levets : the defendant in consideration that the plaintiff would deliver to the defendant the said goods , promises to pay the plaintiff the money due from levet : and exception was taken to the declaration , for that the certainty of the goods were not expressed , and for that the consideration was but collateral . another exception for that the plaintiff might grant the goods over , but the court held the contrary . and judgement for the plaintiff . smith versus bolles sheriff of london , pasc . . jac. rotulo . in case for that the name of the sheriffs were omitted , on the venire fac . and for that cause one judgement given for the said smith was reversed by writ of error . and for that misprision smith brought such action of the case . harris versus adams , if thou hadst had thy right , thou hadst been hanged for breaking of paches house ; the words not actionable . thou art a thief , thou hast stollen the town-beam , meaning the town of wickham : serjeant hutton of opinion the action would lie . stephens attourney , versus battyn , for words , thou hast cozened m. windsor of his fee , and i will sue thee for it in the star-chamber , for that thou didst not come for windsor . judgement for the plaintiff . trin. . jac. bradley versus jones , trin. . jac. rotulo . the plaintiff brings his action upon the case for unjust vexation . the defendant had exhibited articles against the plaintiff , to have the good behaviour against him , and took his oath before doctor cary one of the masters of the chancery : and afterwards the defendant ceased prosecution there , and obtained from the kings bench a supplicavit , to have the good behaviour there . and the court was of opinon , that the action would lie , because he prosecuted in the kings bench and not in the chancery . but the court said , that if he had prosecuted in the chancery , though the articles had been scandalous , yet no action would have lyen ; for a man shall not be punished for mistaking the law , for he may be misadvised by his counsel . brooks versus clerk , pasch . . jac. rotulo . action brought for these words , his son brooks hath deceived me in a reckoning for wares . and his debt-book which he keepeth for sale of wares in his shop is a false debt-book ; and i will make him ashamed of his calling . hubbart and nichols against the plaintiff , and warburton for the plaintiff . pasch . . jac. rotulo . action of the case brought for a nusance for building the defendants house so near the plaintiffs , that a great part of it superpends . and the plaintiff in the conveying his title , shews a lease for years made to him , if the lessor should so long live , and doth not aver the life of the lessor , but saith , that by vertue of the demise the plaintiff hath been and then was thereof possessed , and adjudged sufficient . morton versus leedell , hill. . jac. rotulo . action of the case for these words , he , meaning the plaintiff , is a lying dissembling fellow , and a mainsworn and forsworn fellow . and judgement for the plaintiff after divers motions . thomas attourney versus axworth , pasch . . eliz. rotulo . action of the case for these words , this is john thomas his writing , and he hath forged this warrant , meaning a warrant made by buller sheriff of that county , upon a capias prosecuted out of the court of common pleas by m. h. against the defendant , and directed to the sheriff . row versus alport , mich. . jac. rotulo . action upon the case brought for suing in the admiral court , for a thing done upon the land , and not upon the high sea. bray versus ham , trin. . jac. rotulo . action of the case for these words , thou art a cozening knave , and thou hast cozened me in selling false measure in my barley , and the countrey is bound to curse thee for selling with false measure , and i will prove it ; and thou hast changed my barley which i bought of thee . and the plaintiff sets forth in his declaration , that he was bayliff to w. c. and h. c. of certain lands in p. for three years ; and during the said time , had the care and selling of divers corn and grain growing upon the same land : and after triall and verdict for the plaintiff , it was moved in arrest of judgement , that the action would not lie ; but the court were of a contrary opinion , and judgement was given for the plaintiff . brown versus hook , pasch . . jac. rotulo . action of the case for these words , brown is a good attourney , but that he will play on both sides . and it was moved in arrest of judgement , that those words would not bear an action , but the court held they were actionable , but did not give judgement , because the plaintiff did not shew in his declaration , that the words were spoken of himself . stober versus green , mich. . jac. rotulo ● . action of the case for these words , thou didst keep and sell by false weights , and in . s. bestowing , thy weights were false two ounces , and thy man will be a witness against thee , and i will prove it . the defendant pleaded that the plaintiff occupied one shop , and kept unlawfull weights , and by such weights sold , by reason whereof he said these words , videlicet , thou didst keep and sell by unlawfull weights , and in . s. bestowing , thy weights were false an ounce and three quarters , and thy man , &c. and traversed the words in the declaration , and it was adjudged a naughty traverse , for that the words in the bar , and justified by the defendant are actionable . agar versus lisle , mich. . jac. rot . . action of trover brought in york-shire , the defendant justifies for toll at darnton in durham , and traverse , &c. the court doubts of his traverse , being onely for the county of york , whereas it ought to be any where else generally . and hobart said , the bar was nought , because in the justification , no conversion was sufficiently alleadged . and note , that if a man doth a thing which is allowable by the law , as to distrain cattle , and impound them , that is no conversion ; but if he work them it is a conversion . avstin versus austin , trin. . jac. rotulo . in troyer , the defendant pleads , that before the time that the plaintiff supposes the goods to come to the defendants hands , one s. a. was possessed of the goods , and amongst other goods sold them to the defendant , but kept them in his own hands , and afterwards sold them to the plaintiff , by reason whereof the plaintiff was possessed , and afterwards looses them , and they came to the defendants hands , who converts them , as it was lawfull for him to do . the plaintiff demurs , and it was held a naughty bar , for it amounts to a non cul . and cook doubted whether the court should compell the defendant to plead , non cul . or award a writ of injury . and a writ of inquire was awarded . allyns versus sparkes , & al. trin. . jac. rotulo , action of the case brought for stopping up the plaintiffs way , and the plaintiff declares that one h. b. was seised of the mannour of m. of which two acres were customary land , and that the lord of the mannour had for himself , and his customary tenants for the said two acres , a certain high-way in , by , and thorow , &c. and that the lord of the mannour granted the said two acres to the plaintiff , and that the defendant made and erected one ditch and hedge , by reason whereof the plaintiff lost the benefit of his way ; and after triall and verdict , for the plaintiff it was moved in arrest of judgement , because it did not appear in the declaration to what village the common way led to . and it was held a good exception and judgement arrested : but if it had been unto a common way there , or in such a village , it had been good . kent versus prat , hill. . jac. rotulo . action upon the case , the plaintiff declares , that prat was rector of the church of s. and that kent was lawfully possessed of the parsonage-house , and that there were divers strifes between the plaintiff and defendant for the said rectory : and that the said prat , in consideration that the said kent would surrender the parsonage-house , and the gleab-land , which were then sowed by kent , he promised , &c. and after triall it was moved in arrest of judgement , that the surrender was not a valuable consideration , because it did not appear to the court that kent had any estate but at will , which is determinable at the will of the lessor , and so he surrendred nothing , but if these words had been in the count , viz. of the demise of the said prat , for a term of divers years , it had been good , though the certainty of the years had not been expressed . smailes versus belt , & uxorem , hill. . jac. rotulo . action upon the case , for words spoken by the woman , videlicet , thou art a theif , and a mainsworn theif , and a verdict for the plaintiff , and moved in arrest of judgement , that the action would not lie , but judgement was arrested , because the issue was quod ipsi non sunt cul . and it ought to have been that the woman was not guilty . yardley attourney , versus ellyll , mich. . jac. rotulo . action upon the case brought for these words , your attourney , meaning the plaintiff , is a bribing knave , and hath taken twenty pounds of you to cozen me : the plaintiff laid a communication , such a day and place by the defendant with one b. which b. had before that time retained the plaintiff to be his attourney , concerning the plaintiff , hubbart and nichols held the words actionable , videlicet , for the first word , bribing knave , and that the last words did not extenuate or weaken the former : if the words touch him in his profession , the action will lie , for it is against the oath of an attourney . birtridge is an old perjured knave , and that is to be proved by a stake parting the land between m. and c. one judge for the plaintiff , and two for the defendant . cornhill versus cowler . trespass upon the case brought against baron & feme for words spoken by the woman ; the baron & feme plead quod ipsi in nullo sunt cul . de praemissis , and the jury finde that the woman was guilty , and exception taken after triall to the issue and verdict , and they were both aided by the statute of ieofayles . but another exception was , that the action was laid in suff. and the addition in the writ was a. c. de c. in com. essex , and in the declaration the plaintiff alleadges , that the words were spoken at c. in the county aforesaid , which was in the county of essex , and so a mistryall . chimery versus god. action upon the case , upon a promise to discharge and save harmless the plaintiff against all manner of persons , and shews a suit for tithes in norwich court , and the defendant replies that the plaintiff was not damnified , and the plaintiff rejoyns that he was damnified , to wit , at s. aforesaid , which was in the county of suffolk , where the action was brought , and the court held the cause was mis-tried , because the suit was in norwich , and ought to be tried in norwich , and not in suffolk , and these words apud , s. praedictam were idle . tillet versus bruen . for words , trin. . iac. the plaintiff shews a suit in colchester court , and a triall there before the bayliff , and that the plaintiff gave in evidence his knowledge ; and the defendant willing to defame the plaintiff , as if he had given false evidence , said of the plaintiff , thou art as much forsworn , meaning in the evidence aforesaid by the plaintiff , upon his oath in form aforesaid given , as god is true ; and moved in arrest of judgement , that the inuendo would not maintain the action , and so adjudged . lampleigh versus braithwaie , mich. . iac. rotulo . action upon the case , in which the plaintiff sets forth , that whereas the defendant had feloniously killed a man , and after the felony committed did earnestly request and solicit the plaintiff that he would labor and indeavour to obtain from the king , for the defendant , a pardon for the felony , upon which the plaintiff at the instance and request of the defendant , by all lawfull ways and means possible , did often , and by many days labor and indeavor to obtain , &c. videlicet , by riding and journeying at his own cost and charges , from l. unto the village of r. where the king then was , and from thence back again to l. to obtain , &c. the defendant afterwards at h. in confideration of the premisses , did assume and promise to give the plaintiff an hundred pounds of lawfull money , when he should be required : and a verdict for the plaintiff , and moved in arrest of judgement , for that it did not appear that the plaintiff had spoken to the king for a pardon , nor done any thing , or obtained a pardon : and judgement was given for the plaintiff ; wynch said , the promise was subsequent to the request ; and good ; for although the defendant had no good by it , yet because the plaintiff was at costs and labor , and it was at the defendants request , sufficient to maintain the action . if i request one to do a thing for me , and make no promise , and after you let me know that you did such a thing for me , and then i promise to discharge or pay you , this is a good consideration , although the promise go not with the request ; otherwise it is where a man doth me a curtesie without any request . and hobart took this difference between a consideration executed and executory ; for where non assumpsit is pleaded to a consideration executed , the plaintiff needs onely to prove the promise ; for where the consideration is executory , the defendant may take issue as well for not performing the consideration executory , as upon the promise . glover versus taylor , hill . iac. rotulo . action upon the case , for ill using a horse , so that the horse died , and the defendant promised to re-deliver the horse . the defendant pleads non cul . and after a verdict it was moved in arrest of judgement , because he did not plead non assumpsit . and it was held a good issue . marshall versus steward , mich. . iac. rotulo . action upon the case reciting the statute of . iac. against invocation , &c. for these words , the devil appeareth to thee every night in the likeness of a black man , riding on a black horse , and thou conferrest with him , and whatsoever thou dost ask he doth give it thee , and that is the reason thou hast so much money , and this i will justifie . judgement for the plaintiff . in trover judgement by nihil dic . and exception taken to the declaration , to stay the filing the writ of inquiry , because no day of the conversion was in the declaration , and by two judges held naught . mich. . iac. parker versus parker , hill. . iac. rotulo . in trover after a verdict , it was moved in arrest of judgement , that the imparlance roll was entred with spaces for the possession and conversion , but both those spaces in the issue were filled up , and held good . the imparlance was entred . mich. . iac. rotulo . whitepain versus cook , pasch . . iac. for words , thou art a rogue , and i will prove thee a rogue : no judgement . stone versus bates . a man may well incourage one that was robbed , to cause the felon to be indicted , and accompany him to the assizes , and this shall be lawfull for to do , without incurring the danger of an action upon the case , upon conspiracy ; but if he knew that he was not robbed , then he is in danger of the action upon the case . cope and his wife administratrix , plaintiffs , versus lewyn , trin. . iac. rotulo . an action upon the case brought upon a promise made to the intestate , and in the court omits to shew the administration : and after triall , that fault moved in arrest of judgement ; and the whole court was of opinion , that he should not have his judgement , for it did not appear that he was administrator ; for at the common law no administration lay , but the ordinary ought to have the goods . harvey attourney , versus bucking . mich. . iac. rotulo . action of the case for slanderous words , he , meaning the plaintiff , shewed me first a bill of fourty pounds , without a seal , meaning the said bill by the said e. as aforesaid , sealed and delivered ; and afterwards he shewed me the same bill with a seal , and he , meaning the plaintiff , hath forged the seal of the same writing , meaning the seal of the said bill by the said e. as aforesaid , sealed and delivered . the defendant traverses the words , and a verdict for the plaintiff , and it was alleadged in arrest of judgement , that the declaration was naught , for that it did not directly appear that there was any communication between the plaintiff and defendant concerning the bill , but onely in the ( inuendo ) which will not maintain the action , and judgement arrested . morton versus leedall , hill. . iac. rotulo . action upon the case for these words , he is a lying and dissembling fellow , and a mainsworn fellow . and a verdict for the plaintiff . and afterwards it was moved in arrest of judgement , that the action would not lie , but at length judgement was given for the plaintiff . and serjeant hutton cited the like case , adjudged in t . & barnes , he is a mainsworn villain . 〈◊〉 skipwash skipwash versus skipwash , hill. . iac. rotulo . action upon the case , that whereas the defendant in consideration that the plaintiff would marry one a. b. did assume to pay the plaintiff twenty pounds when he should , after the marriage , be thereunto requested : the plaintiff alleadges no special demand : and that fault was moved in arrest of judgement . hobart and wynch were for the plaintiff , warburton for the defendant . jotham versus ball , hill. . jac. rotulo . action upon the case for slanderous words , videlicet , your master euseby , meaning the plaintiff , is a rogue , a rascall , and forger of bonds ; the plaintiff laid a colloquium between the defendant and one r. g. and after verdict moved in arrest of judgement , for that it did not expresly appear , that the said r. g. at the time of speaking the words was servant to the plaintiff : and judgement was stayed by the court. coddington versus wilkin , for words , trin. . iac. he is a theif , and why will you take a theifs part : spoken . martii . iac. the defendant justifies the words , because the plaintiff stole sheep . the plaintiff by way of replication sets forth a general pardon granted such a time , and further saith , that if any felony were committed it was before the general pardon made ; and shews himself to be a subject , and no person excepted in the pardon . the defendant demurs . the court were of opinion , that by the pardon both the punishment and fault were taken away ; and that the wrong was done to the king by the common law ; and the king being the supreme head , if he pardons , the party is cleared of the wrong . as if a villain be infranchised , he from thenceforth is no villain . note , if a man upon good consideration promise to become bound to another by his obligation to do an act : and if he do not become bound , action upon the case will lie against him : and the plaintiff is not bound to tender him an obligation , but the defendant hath took it upon himself to do it . richards versus carvamell . action of the case brought , and counts for non-payment of money at the plaintiffs next coming into the county of somerset ; and avers , that such a day he came into the county of somerset , videlicet , apud t. in com. somerset , and that the defendant , though often requested , hath not paid . and exception taken because the plaintiff did not alleadge in his count , that he gave notice to the defendant when he came into the county of somerset , but not allowed , and judgement given for the plaintiff . and note , when a man assumes to pay money , or do any thing upon condition , the defendant may take issue upon the condition , and needs not plead non assumpsit , but if he pleads non assumpsit , then he confesses the performance of the condition , which mark . avstin versus jarvis , trin. . jac. rotulo . the plaintiff declares , that such a day and year he bought of the defendant a horse for a peice of gold of the value of . s. by him to the defendant then in hand paid , and for a . l. to be paid to the defendant at the day of death or marriage of the plaintiff , which should first happen , for payment of which . l. the plaintiff should bring to the defendant one sufficient man to be bound , together with the plaintiff to the defendant : the defendant in consideration thereof assumes to deliver the said horse to the plaintiff , when he should be thereunto requested : and the plaintiff avers , that such a day he brought the defendant one sufficient man , videlicet , i. a. de b. yeoman , to be bound together with the plaintiff to the said defendant for the payment of the said . l. and shews that he requested the defendant to deliver the said horse , yet the defendant hath not delivered him , according to his promise . the defendant pleads non assumpsit . and a verdict for the plaintiff : and moved in arrest of judgement , for that the plaintiff at the time of the contract was an infant , and that he could not perform his promise by reason of his infancy , and therefore the promise void ; and another exception , for that it was not alleadged in what sum the plaintiff and his surety offered to be bound ; and judgement was , that the plaintiff , nihil capiat per breve . jacob versus songate , trin. . jac. rotulo . an action upon the case brought for this word , perjured . the defendant justifies that it was found by verdict , that the plaintiff was perjured , but no judgement entred upon that verdict . and whether the plea were good , being there was no judgement , was the question : and it was adjudged no bar , because no judgement was given in the first-action : and so judgement entred for the plaintiff . cruttall versus hosener , pasch . . iac rotulo action of the case for these words , he , meaning the plaintiff , hath caught the french pox , and brought them home to his wife . and judgement for the plaintiff . thornton versus iepson . the plaintiff being a currier brought an action upon the case for these words , he is a common barretor ; but the words would not lie for a man of that profession , but would lie for a justice of peace or lawyer . ireland versus smith , hill. . iac. rotulo action upon the case brought for these words , you norgate take part against me with ireland , who is a papist , and hath gotten a pardon from the pope , and can help thee to one , if thou wilt . the plaintiff laid a communication between the defendant and norgate , and alleadges himself of the age of . years , and not above , because it might appear to the court that he was born within queen elizabeths reign . the court held the action would not lie , as it was adjudged in halls case , and for this word papist no action will lie . if i deliver my goods to you to keep , and i request them , and you deny the delivery of them ; now an action of trover will lie , otherwise it is without a deniall ; if i distrain cattle , i must not use them . warter versus freeman , mich. . iac. rotulo . action upon the case brought for that the defendant sued out a fieri facias upon a judgement which he had against the plaintiff , upon which judgement the defendant had before sued out a fieri facias , and the sheriff of oxford had upon the first fieri facias returned , that he had levied the debt and damages , and that they remained in his hands for want of buyers ; and the defendant knowing that the sheriff had levied the debt and damages , and intending to charge him , again prosecuted another fieri facias , and that the sheriff had again levied the said debt and damages , and hath paid the debt and damages to the plaintiff , to wit , at westminster , in com. middlesex , where the action was brought ; and judgement after debate was given for the plaintiff , though the defendant alleadged that the fieri facias was an act in law , and so no cause of action against him . parkhurst versus powell , vic . denbigh , mich. . iac. rotulo an action of the case for a false return of a capias utlagat . and declares that he prosecuted a capias utlagat directed to the sheriff of denbigh , where the defendant inhabited , and delivered the said writ to the sheriff to be executed ; and the defendant being then in the company of the sheriff , and might safely have arrested him , did not , but suffered him to escape , and returned that he was not to be found ; and upon not guilty pleaded , it was tried in the county of middlesex , where the action was brought ; and moved in arrest of judgement , that the triall ought to be in denbigh , because the not arresting was the principal matter , but because the action was grounded upon double matter , the plaintiff had his election to bring his action , either in the county of denbigh or middlesex , by the whole court. bland versus edmonds , pasch . . jac. rotulo . action upon the case brought for these words , videlicet , george bland is a troublesome fellow , and he did combine with thee to trouble the countrey , and i hope to see thee at the next sessions indicted for barratry , or for sheep-stealing , as george bland was at the last sessions , for bland was indicted the last sessions for sheep-stealing . and it was held by the whole court , that those words would not bear an action , the plaintiff layed the words to be spoken to one jo. eagle : and the declaration was held naught and insufficient , because it was not averred , that the plaintiff was not indicted at the sessions . bradshaw versus walker , hill. . jac. rotulo action upon the case brought for these words , videlicet , thou art a filching fellow , and didst filch from a. b. . l. and judgement that the plaintiff should take nothing by his writ ; for it shall not be intended that he stole the money . adams versus fleming , hill. . jac. rotulo . action of the case brought for these words , videlicet , he hath forsworn himself before the councel of the marches ( meaning the councel of the marches of wales ) in the suit i had against him there , and i will sue him for perjury there . and after verdict for the plaintiff , moved in arrest of judgement , that the words were not actionable for their uncertainty , because the court could not take notice that they had authority to hold plea in matters of record . judgement for the plaintiff for these words , thou art a false forsworn knave , for thou didst take a false oath before a judge of assise to hang a man. gore versus colthorpe , trin. . jac. rotulo the declaration was in consideration that the plaintiff would give credit to e. c. then servant to the defendant for any thing the said e. should deal for , to the use of the defendant , with the plaintiff , promised that he would see the plaintiff contented that which the said e. should deal for with the plaintiff , for the use of the defendant any way , when the said defendant thereof ( after it should become due ) should be requested , and a special verdict by which it was found that the defendant promised to see the plaintiff contented , that which the above named e. c. should deal with the plaintiff , for the use of the said defendant any way . the judgement of the court was that the verdict did not maintain the declaration , because for collaterall matters which are not duties , a request is material , and are not like a duty as for debt , which is due , and no day of payment expressed , that shall be alleadged to be when he shall be thereunto requested generally . for if i sell my horse for ten pounds , and no day of payment , that shall be alleadged in the count , cum inde requisitus esset . and one case of peters was cited , which was grounded upon a promise made in this manner , marry my neice , and when i come from london i will give you . l. and the action was brought in this manner , videlicet , in consideration that he would marry , a. promised to pay the plaintiff . l. after he returned from london , when he was thereunto requested : and for these words , when he was thereunto requested , the action was maintainable . hinch versus heald , trin. . jac. rotulo action upon the case for these words , videlicet , he is a witch , and hath bewitched me : and the court held the action would not lie , for he might bewitch him by fair words , or fair looks . green versus harrington , trin. . jac. routlo . the plaintiff declares that the defendant such a day was indebted to the plaintiff in . l. for rent due to the plaintiff for one year ended at michaelmas then last past , for divers lands in h. demised to the defendant by the plaintiff , the defendant in consideration thereof promised to pay the plaintiff the said . l. when he should be thereunto requested . the defendant pleads non assumpsit : and after verdict given for the plaintiff it was moved in arrest of judgement , that there was no consideration to maintain the action , because an action of debt lay upon the first contract being in the realty ; for upon an implied promise no action will lie where it is in the realty , except there be a special promise made upon a collateral cause , videlicet , if the plaintiff had threatned suit for the said . l. and the defendant , in consideration that he would forbear to sue , promises to pay , &c. and the like : for if a man be bound in a bond to pay money , and the day past , now an action of the case will not lie for that money , except there be a collateral promise : and so in the like cases : and judgement was given against the plaintiff . michaelmas . jac. it was adjudged in the kings bench in an action upon the case , videlicet , whereas the defendant was indebted to the plaintiff in . l. ( without expressing the cause for which the debt grew due ) the defendant in consideration that the plaintiff at the special instance and request of the defendant , then and there had given day to the defendant , untill a time to come , to pay the money , the defendant promised to pay the money , that the action was maintainable , without expressing the cause for which the debt was . hill. . jac. rotulo . action of the case brought for these words , thou art a perjured knave , and i will make thee wear papers for it : the defendant justifies the words , and shews that the plaintff was a church-warden , and took his oath to exercise that office ; and whereas one article made , was , that he should present whether the church-yard was repaired or no , and he knowing it , did not present it . action of the case brought for these words , thou art a scurvy perjured knave ; the action will lie . wilson versus sheriffs of london , hill. . jac. rotulo . the plaintiffs declare upon an escape made upon a capias ad respondendum , after the defendant was arrested : the defendant pleads a custome in london , that the maior and sheriffs of london have used to inlarge prisoners that were arrested , in coming , and returning from their courts , having causes there depending ; and set forth a plaint in london against the defendant , and that he was arrested , and appeared , and pleaded to issue ; and as he was coming to the court to defend that action , he was arrested , as is supposed , in the action upon the case brought against the sheriffs ; and shew that he was brought to the court , and inlarged by the court : and the court held , that if a man were arrested in the face of the court , the court might discharge him , otherwise not . pain versus newlin , mich. . jac. rotulo . action upon the case brought upon a promise and judgement , by nihil dicit : and at the return of the writ to inquire , the defendant moved in arrest of judgement , and shewed that the day of the promise was supposed in the inquiry to be , anno domini . and in the declaration it was made . and for that variance , judgement was stayed . belcher versus hudson , hill. . iac. rotulo . the plaintiff declares , that in consideration that the plaintiff at the request of the defendant would marry one t. m. his familiar freind , the defendant promised to pay the plaintiff yearly after the decease of the said t. m. . s. for her maintenance : and the plaintiff averrs the marriage , and that she survived . the defendant pleads that the said t. m. in his life time after the marriage , &c. did release to the defendant all actions as well real as personal , and all demands and challenges whatsoever , from the beginning of the world unto the date thereof : to which plea the plaintiff demurrs , and adjudged a naughty plea. box an attourney against barnaby . action upon the case for these words , george box is a common maintainer of suits , and a champertor , and a plague of god consume him , and i hope to see his body rot upon the earth like the carkase of a dog , and i will have him thrown over the bar next term , and i will give a beech to make a gallows to hang him : and judgement given for the plaintiff , for this word champertor , and no other . trin. . iac. action upon the case for these words , she is an arrant whore , and had two bastards in ireland : and judgement by the whole court , that the words would not bear an action . york versus cecill , mich. . iac. action upon the case brought by a. tanner for these words , thou art a bankrupt knave : and the court held that the action would not lie : but quaere . skaif versus nelson , mich. . iac. rotulo . action upon the case brought for words against husband and wife , spoken by the wife , and judgement was entered for the plaintiff , and in entering of the judgement it was made , et praedicta , e. ( being the woman ) in misericordia , which was naught , for it should have been both the husband and wife in misericordia : and after the record was certified by writ of error ; serjeant richardson moved that it might be amended , because the judgement papers were right , and so it was ordered to be amended according . smails an attourney versus moor , hill. iac. rotulo . action upon the case for the words , he is a forging knave : and the court held that the words were actionable , for he alleadged in his declaration , that he was an attourney of the common pleas , and so being touched in his profession , the words would bear an action : and if a man said of a bishop , that he was a papist , the action would lie ; because religion is his profession , and so he is defamed . steward versus bishop , trin. . iac. rotulo . action upon the case for these words , james steward ( meaning the plaintiff ) is in berwick gaol for stealing of a mare and other beasts : and after a verdict for the plaintiff , it was moved in arrest of judgement , that the words were not actionable , and so it was adjudged , for that he did not directly say , the plaintiff was a thief , but onely implied , hill. . iac. rotulo an exception taken to a declaration in trover brought by an administrator , because he declares , that whereas he was possessed of divers goods and chattels , as of his own proper goods , and should have said , as was pretended , as of the goods and chattels of the intestate at the time of his death ; but the exception was over-ruled by the court. exception to an action of the case brought , and the plaintiff declares , that whereas the plaintiff had delivered the defendant unum statum salis anglicae , a bushel of salt , pretending that ( statum ) had another proper signification , but because it was shewed to the court that ( statum ) by one dictionary was latine for a bushel ; judgement was given for the plaintiff . in trover it is usual to prove no more , but that you requested the goods , and the defendant refused to deliver them , this is a conversion . when a justification arises upon a sale , then i need traverse no more but the place alleadged , and not go to the whole county , but where it is a transitory , trespass , as for battery , taking of goods , and the like , then the whole county must be traversed . catford versus osmond , mich. . jac. rotulo . action of trover brought for two steers , the defendant being an attourney of the common-pleas justifies the taking as under-sheriff , by reason of process from the exchequer to levy of the occupiers of the lands of divers persons in a schedule in the said writ named the debts therein specified , and doth not recite the schedule ; and he being under-sheriff took the steers in the land of the plaintiff , which was lately one stones , who was debtor to the king in . s. being behinde upon the land : and exception was taken , for that it was not directly alledged that the land such a day was the land of the said s. the writ commanded to levy the summs in the said schedule mentioned ; and if they could not , to take their bodies ; and it was adjudged a good warrant to levy of the occupiers of the lands that were the said s. . s. coles versus flaxman , hill. . jac. rotulo . action of the case brought for disturbing the plaintiffs common . the defendant pretends title to the common by reason of common appurtenant to certain customary land , of part of which he conveys a title to himself , but not of the whole : and the question was , whether it were common appurtenant , or appendant ? and if appurtenant it could not be divided . keymes versus moxham , trin. . jac. rotulo . action of the case brought for a promise made at c. for the delivery of a mare , which the plaintiff delivered the defendant to plow his ground in p. and shews the defendant did so excessively and immoderately labor and work the said mare , that the mare died . the defendant confesses the promise , and that the mare at the time of the delivery was infirm , and that he worked her moderately , and traverses the excessive labouring of the mare : and after a verdict , it was moved in arrest of judgement , that it was mis-tried , because the venn was of c. which was naught , and there was no place alleadged where the excessive labouring was ; for the venn ought to come from that place where the laboring was . harbin and his wife versus green , trin. . jac. rotulo . action upon the case brought for not grinding his corn at the plaintiffs mill , and shews that the bishop of salisbury was seised of four customary mils , called a. in his demesne , as of fee in right of his bishoprick ; and prescribes that all inhabitants and residents within the city of salisbury , holding any ancient mesuages of the said bishop in right of his bishoprick , were time out of minde used , and ought to grinde all their corn whatsoever spent in their houses , or exposed to sale in the said city , at the said mils , of the said bishop , and no where else , without the licence of the said bishop , and to pay toll therefore to the said bishop , his successors bishops , or their farmors for the time being ; and in consideration thereof , the bishop , his successors , or farmors for the time being of the said mils , time out of minde have been used and accustomed at their own charges , from time to time to keep and maintain a servant expert in grinding , as well by night as day there attending , to grinde their corn as soon as conveniently might be ; and the plaintiff shews that such a day the defendant was , and yet is , an inhabitant , in one ancient mesuage in the said city , held of the bishop , and so possessed , intending to deprive the plaintiff of the profit of his mill , did such a day grinde divers sorts of corn in other mils , without the bishops leave , to his damage of , &c. the defendant pleads non cul . the jury finde the defendant guilty for a longer time , then the plaintiff had interest in the mill , and gave damages intire , and upon a motion in arrest of judgement adjudged naught . gresley versus lother and his wife executrix of r. b. and declares that communication was had between the testator in his life , and the plaintiff concerning a marriage to be had and solemnized between one t. b. son and heir apparent of the said r. b. and jane daughter of the plaintiff , and heir apparent of john f. deceased , the said testator such a day and year in consideration that the plaintiff at the special instance and request of the said r. b. then and there would agree that the said t. b. should marry the said j. promised to pay . l. and adjudged a good consideration . gowland versus mason hill. . jac. rotulo action of the case for these words , i charge him with felony for taking of money out of the pocket of henry sparry , and i will prove it : and the court was divided in opinion , whether the words would maintain an action or no. smith and his wife versus stafford executor of stafford , hill. jac. rotulo . action of the case brought upon a promise made to the woman when she was sole , in consideration the woman would marry the testator , he promises that if the woman should over-live the testator , that then he would leave her worth . l. and they averr that she did marry him , and after the husband died , and did not leave her worth . l. and the defendant pleads non assumpsit , and found for the plaintiff : and it was moved in arrest of judgement , that by the inter-marriage the promise was drowned , and released . three judge●…r the plaintiff , and one for the defendant . the like observations in actions of covenant . drury versus allen , & al. mich. . jac. rotulo . action of covenant brought against administrators . the breach was , for not repairing houses by the administrators , according to a covenant made by the intestate . the administrators plead divers judgements given against them in bar of the covenant , and that they have not assetts over . hare versus savill , trin. . jac. rotulo action of covenant brought upon an indenture , upon a special covenant to pay rent at certain dayes therein specified and reserved . the defendant pleads that no rent was behinde . the plaintiff demurrs to that plea : and it was held by the whole court to be a bad plea in covenant ; for by that plea the defendant confesses the covenant broken , and that plea tends but in mitigation of damages . mordant versus wats , pasch . . jac. vel . jac. rotulo . action of covenant brought for a rent-charge granted for the life of an estranger , and for half a year after to be paid at the feasts of the annunciation of the virgin mary , and saint michael the archangel , and alledge that the estranger died in february , and that the rent was not paid at the feast of the annunciation , and so the covenant broken : the defendant demurres , pretending that the rent was not due untill half a year after the death of the estranger , and not at the feast , but the court held the contrary . and if the grantee had died , his heirs should have had it , during the life of the estranger , because it was payable to him , his heirs and executors . if i grant an annuity for life , and twenty years after , these are two severall grants , and the executor shall have it after the death of tenant for life . and sir edward cook said , when an express covenant is made to pay the rent at divers dayes , an action of covenant will lie before all the dayes of payment be past ; but an action of debt will not lie untill all the dayes be past , and that in such case debt doth properly lie upon a grant of an annuity for life or years , h. . eliz. rotulo . lam versus tresham , hill. jac. rotulo . the indentures of covenant were made between t. tresham e. lord stourton , meriel , t. and the defendant , and the lord stourton and meriel never sealed the indenture , and mention thereof was made in the count , videlicet , which lord stourton and meriel were parties to the said indenture , but never sealed . the case was sir t. t. conveyed one lease to the lord stourton , and he to the said meriel , and by the indenture brought into the court , it was covenanted , that the said t. t. m. and l. or one of them at the time of the ensealing and delivery of the said indenture , was lawfully possessed of , and in the mannour of , &c. and covenant that the defendant , his executors , and assignes , might and should quietly have and injoy the said mannour clearly and absolutely freed and discharged , or otherwise upon request saved harmless from all incumberances and former bargains by the said t. s. e. m. and the defendant or any of them : and the breach was , that the plaintiff was damnified , for that the said m. that had the state did not seal , and adjudged good . pyot versus lord saint-john , mich. . jac. rotulo . the plaintiff had the reversion of two houses , one in fee , and the other for years , and makes a lease for years , with covenant for reparations of both houses , and question was , whether the plaintiff should have one action , or several actions , and adjudged that he should have a joynt action for both . fisher versus ameers , hill. . jac. rotulo . action of covenant brought against the first lessee after he had assigned over his terme for not repairing : and the question was , if an action of covenant would lie against the first lessee upon a covenant to repair the houses , &c. who had assigned his terme to another , whom the lessor had accepted for his tenant , and received the rent , and he suffered the house to be consumed by fire , and if the covenant by such acceptance were gone as debt , for the lessor is barred of his action of debt for rent against his first lessee , after he hath assigned , and the lessor accepted the rent of the assignee . if i covenant , that i , my executors , administrators , and assignes , shall pay the rent , if i assigne over my terme , and the assignee pay the rent to the lessor , yet the covenant lieth against the first lessee , otherwise it is where rent is reserved , and no covenant to pay it , there , if the lessor accept the rent of the assignee , the action will not lie against the executor of the lessee , and judgement after a demurrer for the plaintiff , that the action would well lie . walter versus decanum & capitulum norwici , trin. . jac. rotulo . action of covenant brought upon an express covenant in a voidable lease ; and the question was , whether the covenant be good , the lease being void ; and it was adjudged , trin. . jac. that the action would lie , although the lease were void : and mapes case was cited , which was , mapes made a lease of a parsonage of d. for seven years , and did covenant to save the lessee harmless against b. the person , &c. in that case it was held , if the person sue the covenant by right or wrong , an action lies upon the covenant : and sir e. cook said , that if the lease were originally void , yet the action of covenant would lie ; for else a great mischief might happen ; for a dean might as to day make a lease to one , and keep it secret , and to morrow make another , and covenant to injoy it , and so avoid the second lessee . if a lease be good at the beginning , and become void after , their terminus , is the number of years , otherwise , where it was void at the first , if a dean and chapter make a lease contrary to the statute , and reserve a rent , it shall not be void against them , so long as the dean liveth , but against his successor . the lease in question was not void , but voidable . a covenant in law shall go to lawfull eviction , although the lease be void . a covenant real to warrant and defend , there must be a title paramount , and a lawfull eviction . covenants for lessees shall be taken beneficially for the lessees . bright versus cowper , trin. . jac. rotulo . action of covenant brought upon a covenant made by the merchant with a master of a ship , videlicet , that if he would bring his fraight to such a port , then he would pay him such a summ , and shews , that part of the goods were taken away by pirats , and that the residue of the goods were brought to the place appointed , and there unladed , and that the merchant hath not paid , and so the covenant broken : and the question was , whether the merchant should pay the money agreed for , since all the merchandises were not brought to the place appointed : and the court was of opinion , that he ought not to pay the money , because the agreement was not by him performed . crockhay versus woodward , hill. . jac. rotulo . an action of covenant brought upon this writing , videlicet , memorandum that i john woodward do promise and assume unto b. c. to pay to him such moneys , or other goods , as josias my son shall imbessell , mispend , or wrongfully detain of his , during the time of his being apprentice with him within three moneths next after request to me in that behalf made , and due proof made of such imbesselling , or wrongfull detaining , in witness , &c. and the plaintiff shews that the defendants son did imbessell goods of his masters , and shewed what goods , and left out in his declaration these words , videlicet , and due proof likewise made of such imbesselling or wrongfull detaining . the defendant demands oyer of the writing , and pleads that he did not imbessell ; and it was tried for the plaintiff , and after triall exception taken , because the plaintiff did not alleadge any proof made , and for that reason judgement was arrested . bragg assignee of bragg , versus wiseman , executor of fitch , mich. . jac. rotulo . action of covenant brought , and the case was this , that fitch and his lady were seised of land in right of his wife for terme of her life , and joyn together in a lease by deed indented , in which were these words , demise , and grant , and afterwards fitch dieth , the lady enters , and avoids the lease , and maketh a new lease to a stranger , whereupon an electione firme is brought against the first lessee , and judgement thereupon , and the first lessee put out of possession : whereupon the first lessee brings his action of covenant against the executors of fitch , upon the words , demise and grant . the defendant demurrs . the words were , have demised , granted , and to farm letten for years , if the wife should so long live ; and judgement for the difendant . a covenant in law shall not be extended to make one do more then he can , which was to warrant it as long as he lived , and no longer . the law doth not binde a man to an inconvenience . if tenant for life make a lease for twenty years , and covenant that the defendant shall injoy it during the terme , that shall be during his life , for the terme endeth by his death ; but otherwise it is , if the covenant be during the terme of twenty years , by the word , demise , an action of covenant lieth , although he never enter , and this word demise implieth as much as dedi & concessi . an action of covenant brought , for that the defendant covenants to bring again a ship , perils and damages of sea onely excepted , and he to excuse himself , saith , that the hollander in a warlike manner by force and armes took the ship : and much doubt was where the issue should be tried ; and the opinion of the court was , that the action should be tried where it was laid . cowling versus drury . action of covenant brought , for that the defendant did not pay a rent with which the land was charged ; the defendant replies , he was to injoy the land sufficiently saved harmless , and answers not the breach , and adjudged a naughty bar by the whole court. selby versus chute , trin. . jac. rotulo . action of covenant brought , and the breach was alleadged , that the plaintiff should quietly injoy the land demised to him , and he shews that chute exhibited a bill in chancery against him , pretending the lease was made in trust , and it was decreed to be otherwise : and whether the exhibiting this bill was a breach of covenant , there being no disturbance at common law , was the question : and the court were of opinion , that it was no breach of covenant , for it was no disturbance at common law , nor entry ; and the law could not take notice of it : and judgement for the defendant . holder versus tailor , pasch . . jac. rotulo . an action of covenant brought upon this covenant , that the lessee should repair the house , provided alwayes , and it was agreed that the lessee should have such necessary timber to be allowed and delivered by the lessor : and the breach was , that the house wanted reparations , and that so many loads of timber were necessary , and that the lessor allowed them according to the form and effect of the indenture ; and a general request laid , and exception was taken to the declaration , for that the plaintiff did not alleadge a special request to the defendant : and that it was laid in the declaration , that a stranger brought the timber , which was held to be naught by the whole court , for it amounted to an entry upon the lessees possession . exception taken to a breach laid in covenant for repairs , because it was generally alleadged , and not shewed in what , but being after a verdict it was helped by the opinion of the whole court. tisdale versus essex , trin. . jac. rotulo . action of covenant brought upon these words , covenant , promise , and agree , that the lessee should quietly occupy and injoy the lands demised , for and during the terme of seven years : and the plaintiff shews that an estranger entred upon the land , and shews not that he entred by title ; and the court was of opinion that it was naught , because it did not appear that he had a good title to enter , dedit & concessit , imply a warranty for life ; and judgement was given for the defendant , because the breach was naught . hicks versus action of covenant brought , and the land alleadged to be in weston , alias , weston vnderwood , and the venn was de visu de vveston vnderwood , and it was alleadged by the defendant , that the venn was mis-awarded ; because it was not of vveston onely , but the court was of a contrary opinion , that it was well awarded , and judgement for the plaintiff . castilion & al. versus smith , exec. smith , trin. . jac. rotulo . action of covenant brought against the defendant , and the breach of covenant alleadged to be in the time of the executor : and the judgement was entred of the goods of the testators : the breach was for plowing of land contrary to covenant . rident versus took , hill. . jac. rotulo . action of covenant brought to discharge the plaintiff of a single bill , in which he was bound for the debt of the defendant , and he alleadges for breach non-payment , and a suit and recovery at law for the money which remained in force . the defendant pleaded , that he paid the money at the day , and thereof gave the plaintiff notice , before the purchasing his writ , the plaintiff demurs ; and the court held the plea naught , and judgement for the plaintiff . actions upon account . willoughby against small . an action of account brought against the defendant , as receiver of the plaintiffs money . the defendant pleads , that he never was receiver , where he hath a release from the plaintiff , whereby he shall lose the benefit of his release , for that he cannot give that in evidence upon such issue . the process herein is summons pone & distress , and upon a nichil returned upon the summons pone , or distress , the outlary lies , the process is returnable from fifteen dayes to dayes , & an essoin lies . in this action there are two judgements , the first judgement is , that the defendant shall account , because he hath not accounted before in this first judgement , the plaintiff shall not recover costs or damages , but a capias ad computand . shall issue , and if a non est inventus shall be returned thereupon , then an exigent : and when the defendant by the rigor of the law is imprisoned , yet the court doth in favour of the defendant take bail , for he shall account before auditors , which the court shall appoint , which shall be the officers of the court to audit the account ; and he shall appear from day to day before the auditors at every day and place assigned by the auditors , untill the account shall be determined ; and before the auditors the plaintiff or defendant may joyn issue or demurr upon the plea pleaded before the auditors , and if any of the parties shall make default , and shall not appear , then if after appearance the defendant shall not plead , or if he shall joyn issue , or joyn in a demurrer , the auditors shall certifie that to the court , and the court shall proceed to the matter certified by triall of the issue , if it be joyned , or by arguing the demurrer as the cause shall require : and if the plaintiff shall make default , or shall not prosecute , or if the defendant shall not answer , they may commit him to the fleet ; and if verdict pass for the plaintiff costs and damages shall be recovered , by reason of the inter-pleadings ; and the plaintiff shall recover his goods or moneys demanded , with his costs and damages ; and a fisa , or elegit or casa , shall be awarded , and if a non est inventus be returned , then an outlary after judgement . an account against a bailiff of lands shall be brought in the county where the lands lie . in every case in account where an attachment may be returned , an essoyn lies . where the defendant is charged to account for moneys received from the hands of the plaintiff , the defendant may wage his law , and likewise for goods delivered to be sold , but it is otherwise where the receit is by the hands of a testator , or of any other then the plaintiff . that after a year and a day after judgement given , every action shall be revived by scire facias , which is given by the statute ; for all actions at law , if the plaintiff shall not obtain his execution within a year and a day , he shall be driven to bring a new action . or if a defendant be charged as receiver by indenture , he shall not be admitted to plead , that he was not a receiver . if the plaintiff die before the second judgement , the writ shall abate , and no scire facias lies for the executor , if the defendant die before the second judgement . if two be adjudged to account , and a ca. & exfa. issue , and one appear , and the other be outlawed , he that appears shall account alone , for that the plaintiffs process is determined against the other : and so if one die , the other shall account alone ; and if one be adjudged to account , and will not , he shall be committed to the fleet. that if i deliver goods to one , to the value of . l. to traffique with for my use , and he sels them for . l. i have no remedy , but if my bailiff buy a thing for . l. which is not worth it , he shall not be allowed it . account lies not before a sheriff , for that he can assigne no auditors . if two be joyntly possest of goods , one of the two deliver the goods for merchandise , he onely shall bring the action . an account lies not against an executor or infant . an account lies not for a park of deer . matter that is in discharge of an account shall not be pleaded in barr of the action , for the judges are judges of the action , and not of the account . if money be delivered to render an account , ( an account lies ) but if it was delivered to keep untill the plaintiff shall require ; account doth not lie , but detinue . if the plaintiff account upon witness of the receit , the defendant shall not wage his law. if an account shall be brought for goods , in the declaration the plaintiff declares , that they were in his house , whereas indeed they were not , it is good . harrington versus dean , hill. . jac. rotulo . action of account render brought against the defendant for the receit of money by the hands of one rotheram for . l. the defendant pleads that he was not a receiver for to render an account : the jury finde it specially that rotheram was indebted to the plaintiff in . l. and the plaintiff required the defendant to receive the said . l. and the defendant required rotheram to pay the . l. and rotheram upon request to him made , desires the defendant to borrow of any person . l. and to pay the plaintiff , and finde that the defendant did borrow . l. of one stanhop to pay the plaintiff ; and rotheram became bound to stanhop for the payment of the said . l. and that the defendant appointed his wife , to pay the money to the plaintiff ; and if upon the whole matter , &c. and judgement was given , that the defendant was a receiver . the earle of cumberland against hilton . the clerk that entred the cause had omitted the charge which was for . l. and it was omitted in the roll , and nisi prius : and after a verdict , excepon taken , and amended by the court. assise . in an assise trin. . jacobi , rotulo . brought against thacker and elmer : the defendants come and say , that there was no tenants of the tenements put to the view of the recognisors of the assise aforesaid , nor at the time of purchasing the writ , to wit , such a day , nor any time after ; and this they were ready to verifie , and pray judgement ; and if so , then they say , that they have done no injury or disseisin of the tenements with the appurtenances to the said w. t. and put themselves upon the assise ; and the said w. t. doth so likewise , therefore the assise was taken between them ; and thereupon the recognisors of the assise say , that the said e. e. at the purchasing of the original writ of the assise , videlicet , such a day were tenants of the tenement aforefaid , with the appurtenances , as of his free-hold ; and that the said w. t. was seised of the tenements aforesaid , with the appurtenances in his demesne , as of fee untill the said e. did unjustly , and without judgement disseise the said vv. but not by force and armes ; and assess damages to . d. and for costs . d. and judgement given that the said vv. should recover his seisin of the tenements aforesaid against the said e. by the view of the recognisors of the assise , and his damages , &c. an assise brought , and the grant was of the herbage and pannage , &c. and whether this were good or no : some held it void , for the incertainty of the grant , when it should begin ; sir edward cook held the grant good ; for if the king make a lease for life , and granteth the land without reciting the state to one for life , this is a good grant for life of the reversion , to begin immediately after the death of the tenant for life . trin. . jacobi , rotulo . an assise brought for the office of a harald , at the funeral of the earle of exceter ; and the great question was , where the view should be made ; and it was alledged , that it should be made in the place where he exercised his office , but the court doubted of that ; but they were examined of the view made in the abbey of westminster , being the place where the funeral was performed ; and the court were of opinion , that in dower , where tithes are demanded , no view lies , for of things that are invisible , no view lies , but the tenant in such case shall be denied it . sir william saint andrew brought an assise de darrein presentment , against the arch-bishop of york , the countess of shrewsbury , and f. h. for the church , of o. in the county of nott. the archbio p and h. appeared , and the countess did not appear ; and though the countess made default , yet the assise was not taken against her by default , but a re-summons was awarded against the countess , and the same day given to the arch-bishop , and h. and a habeas corpora against the recognisors . and note , the tenants that appeared pleaded in abatement , that a writ of quare impedit , for the said church was hanging in such a court between the same parties , and the assise was brought afterwards : and with this agrees the register ; and it was adjudged a good plea. the writ was returned in this manner , pleg . de prosequend . john doo , richard roo . the within named arch-bishop and countess are attached , and either of them is attached , per pleg . h. s. n. j. and the within named h. hath nothing in the sheriffs bailywick , by which he may be attached , nor hath a baily within his liberty , nor is therein found : and the residue of the execution , &c. and judgement given , that the writ should abate : and the like was in the earle of bedfords case , where two quare impedits were brought one after another , and the last writ abated . j. lovelace versus baronissam despencer , & r. harvey clericum , trin. . jac. rotulo . de darrien presentment for the church of m. and the said h. being solemnly exacted came not : and the sheriff made a return , that he was summoned by j. o. and w. c. and therefore the assise was to be taken against him by default , but the said baromsh . by t. her attourney , faith the assise ought not to be so taken , and confesses the said j. was the person last presented , but conveys a title to her self of the mannour : to which the presentation belongs , and that being so seised , the plaintiff in the assise by usurpation presents the clerk in the count , whereupon the defendant brought a quare impedit , and hanging the writ , the clerk in the count dies , and the plaintiff presented the clerk that made default , who by vertue of that presentation is yet parson of the said church , by which she is seised of the advowson , as in her former estate ; and so she saith , that the presentation of the said j. by the said l. made , ought not to prejudice her : and a demurrer upon this plea ; and that the assise should remain to be taken , &c. for want of recognisors ; and the sheriff was commanded to distrain them , &c. and judgement given , that the plea was good : but quaere of the declaration , whether sufficient , because it was not alleadged , that he that presented was seised of the advowson . pasch . . jac. rotulo . an assise brought for the office of clock-keeper of , and it was held , that it must be an ancient office , and because they could not prove that it was an ancient office , the plaintiff was non-suit , and the plaintiff shewed a grant of the same in e. . time , but that was held no ancient time . pasch . . jacobi . it was held by the whole court , that an assise of sadler to the queen would not lie , being granted to one by the king , but was held void by the whole court , for the king cannot make an officer to the queen , and by the patent no place was expressed where he should injoy and exercise his office , and take the profits , and therefore the jury could not have the view ; and for that cause an assise cannot be taken : and if the king should grant the office of usher to his son the prince , an assise would not lie . an assise brought against demetrius , the plaintiff was non-suit ; and demetrius moved to have cost , and it was denied by the whole court , because an assise is not within the words of the statute . audita quaerela . bird versus kirton , trin. . jacobi , rotulo . an audita quaerela brought , and the case was this , bird and milles were bound to kirton , and kirton makes a bond to milles in the summ of . l. that if milles be not sued upon the first bond , then that shall be void ; and it was alleadged , that kirton did both sue milles and bird , and that he had no notice of the second bond , that he might have pleaded it , and so pretends that the second bond should be a defeasance of the first ; and judgement was given for the defendant . beck brought an audita quaerela , and surmises the matter following , that boon administrator of c. brought his action of debt upon an obligation , and before judgement , that administration was revoked , and administration granted to another , and notwithstanding the revocation , he procured judgement , and the second administrator released , and the rest brought an audita quaerela upon that release , and the court would not grant a supersedeas , because the revocation was but matter in fait , for that revocation was not under seal ; and the first administrator might appeal . cases in law , and notes . if a writ of covenant be brought against two , and if one acknowledge the fine before one of the justices , and the other acknowledge by dedimus , or before another justice , that fine cannot be proceeded upon these two acknowledgements by the opinion of the court. a writ of covenant was brought against three men , and their wives , and onely two men and their wives acknowledged the fine , and the other husband and wife never acknowledged , and the fine was sued , as a fine acknowledged by all , and it was desired the fine might be amended , and the man and wife that did not acknowledge might be put out , but the court would not grant it . if i make a lease for years , reserving rent , during the life of a. and b. if one of them die , the rent is gone . if i make a lease for life , reserving a rent to me and my executor , neither the executor nor the heir shall have the rent , justice walmsley held this difference in making a lease to two , during their lives , if one die , the other shall have it ; otherwise it is if it be made to one during the life of two , and one of them die , in this case the lease is ended : and there is difference between a reservation of rent and lease , for reservation is according to the will and pleasure of the lessor ; and justice walmsley said , if a lessee for years granteth a rent to a. during the life of b. and c. this reservation is good , although one should die , which sir edward cook denied : and judgement was given for the plaintiff , in hills case . if i make a lease for years , reserving a rent , and then i grant , demise , and to farm let , reversionem domus , for years , and the rent , to have and to hold the reversion , and the rent from a time past , if the lessee cannot get an attornement , yet it is a good lease in reversion , and shall take effect after the end of the first lease habendum terram & habendum reversionem est terra revertens , and no difference . if the husband with his own money purchaseth for his wives joynture , land to them and the heirs of their two bodies , the remainder in fee to the wife , and they have issue two sons , and the husband dieth , and the wife suffereth a recovery to the use of the youngest son , the eldest son notwithstanding shall have the land , by the statute of joyntures . hill. . jac. if i set-out my corn , and after take it away , the parson may sue me in the spiritual court , or bring an action of trespass against me : but if the parson sue in the spiritual court a stranger for taking away the tithes which were set out , this is a praemunire in the parson . tenant at will shall pay his rent when he holdeth over his terme , but tenant at sufferance shall not pay any rent , if a man hold over his terme , and pay his old rent , he shall be accounted tenant at will. for one joynt debt , for one contract , you cannot plead nil debet , for part , and demur for the rest ; for he pleads nil debet , and the matter in law is reserved . licet saepius requisit , is a sufficient request upon a bond , because it is a debt . unto an action brought against a man upon a bond , pleads denis age : the case was this , that when the obligation was sealed and delivered , the defendant was of full age , but at the time when the bond bore date , he was under age ; and at the assises the judge there ruled , that at the time of making the bond , was when the bond was sealed , and not when it bore date . the court were of opinion , that where a bishop holds land discharged of tithes , and he makes a feofment of the land , the feoffee shall be discharged of tithes ; and the like , if the king hath ancient forest-land discharged of tithes , and the king grants this land , the grantee is discharged of tithes ; and it is a general rule , that he which may have tithes , may be discharged of tithes . if i let land for years , reserving rent , if i command one to put his cattle into the land , i cannot distrain them , for my commandement is a wrong , and an action of case will lie against the commandor . if i make a lease , and bid the tenants cut down the trees , yet i may have an action of waste against my lessee . in sir cheydens case , the commandment to take possession was void , unless he had commanded him to expell the tenant , and then he might joyn either to distrain , or bring an action of debt , for the lease was made by him and two more . h. . if i make a lease to the husband and wife , covenant to do no waste , or repair houses , and the husband dieth , and the wife surviveth , and holdeth in , if the wife commit waste , or not repair the house , no action lieth against the wife ; but to such a lease the wife is tied to pay the rent , or to perform a condition made by the part of the lessor , but not observe or perform covenants of the lessee . pasch . . jacobi . the court much doubted , whether one that had a park , and was used to pay one shoulder of deer for all manner of tithes , and the park is dis-parked , should now pay tithes in kinde or not . for wooll and lamb , no action upon the statute for not setting out of tithes , for they are no predial tithes : and no action lies upon this statute for small tithes . an administration granted durand . minori aetate execut . is not within the statute of h. . and by the civil law the judge may after administration by him granted , revoke it , and grant it to another . and if an administration be granted to a feme covert , yet she shall sue in their court as a feme sole . one briefly married an administratrix , and entred into bonds for the intestates debts ; and afterwards the wife leaveth her husband , and refuseth the administration , and it was granted to another , and now b. prayeth a prohibition , for that he may be sued for debts , and denied by the court , untill he be sued . this administration was first granted by doctor b. and after by him revoked , and a new granted by him to the wives brother , and afterwards he revoked that , and established the first administration and the appeal . a feofment in fee by deed indented , rent reserved , it is good ; but without deed cannot reserve rent . if land be devised by three , upon condition to pay them . l. equally to be divided , and one of them dieth , his executor , or administrator shall have the money : and so it is , if one were bound to pay money . the commissary granted administration of the intestates goods to the wife , and did make a divident of his estate to some of the rest of his kindred : and this was-held not to be warranted by law , and more then the ordinary could do ; because the administratrix is chargeable to pay all debts and promises of the intestate , and to bring up his children , which she cannot do , if the goods be taken away ; vbi delinquit ibi punietur . if a copy-holder of inheritance accept a lease for years of his copy-hold , the copy-hold is gone by the opinion of the whole court. if a legacy be granted of land , this shall not be sued for in the spiritual court ; but if one by will devise land to be sold for payment of legacies , this shall be sued for in the spiritual court by the opinion of the whole court. if two fulling-mils be under one roof , and a rate-tithe paid for the mils , and after you alter these mils , and make one a corn-mill , your rate is gone , and you must pay tithes in kinde ; or if you have but one pair of stones in your mill , and pay a rate for them , then if you put on another pair of stones , new tithes must be paid in kinde . if one in fee make a lease for life , and after granteth a rent-charge , if the grantors cattle come upon the ground , i may distrain them , although i cannot distrain the tenant in possession , but the grantor cannot avoid it . if the condition of a bond be to discharge a messuage of all incumberances , then one may plead generally , that he did discharge it of all incumberances ; but if it be to discharge it of such a lease , then i must shew how . if a man devise his trees to his executors to pay his debts , the executor must in convenient time cut down the wood. and so if a man sell his trees , the vendee must sell them in a convenient time . if i grant you out of my mannour , . l. per ann . and recite but five pounds , the recitall shall not diminish the grant. and so if i grant you ten pounds out of my mannor , and recite . l. this shall not inlarge it . if i infeoff two of land , habendum to me in fee , and habendum to the other in fee , they are tenants in common . in the court of wards , one dymack was a purchasor by bargain and sale , and before inrolment d. dies , and after his death the indenture was inrolled ; the question was , whether his son shall be in ward for the land ; and it was adjudged , that he is heir to the land , and is in by the statute of eliz. of bargains and sales , and not by the statute of uses . my lord hobard held , that if an executor pay a bond made upon a usurious contract , it shall be a devastavit in the executor : and if he be bound to present one to a church , and he present one upon a simonaical contract , the bond is broken . hill. . jac. resolved , if one make a lease of a mannour , reserving rent , and afterwards the lessor grants the reversion of forty acres thereof ; now if an action of debt be brought by the grantee , he may aver the rate of the acre : and if the defendant plead nil debet per patriam , the jury shall rate the value , and although the value be found less by the jury then the plaintiff surmiseth , yet the plaintiff shall recover after the proportion . for acts in law no attornement is necessary : as if a lease made for years , reserving a rent , which is assigned to a woman for dower , she shall have the rent without attornement . in cambels case upon an elegit returned , that the lessor was seised in fee , and that by vertue of the judgement the moity was delivered to the plaintiff ; and for the rent reserved upon the lease for years before judgement . if a man top a tree under the growth of . years , and suffer the body to grow ; and afterwards when the boughes are grown out again , he doth lop and top it again , i shall pay no tithes , although the tree was not priviledged at the first cutting , by the opinion of the whole court. if a debt be recovered in a court of record , that debt cannot be assigned over to any man by the opinion of the whole court , mich. . jac. pasch . . if money be to be paid , upon proof made , there the triall shall be the proof to be made before : but if it be to pay money within . moneths after proof , there proof must be made first : but if it be upon proof before a. then proof being made before a. this extending proof shall tie the party : but warburton held the contrary , and he resembled this to a surmise to have a prohibition , which is no binding proof , for the jury may pass against the proof in the surmise : when a bond is to pay money upon proof , this is a legal proof by law , if it be laid generally to be paid by proof ; if it were by proof before two justices , or two aldermen , this shall be intended a sufficient proof , when the action shall be brought upon the bond , and if the defendant say , that due proof was not made , then they shall say , that before the two justices , &c. it was proved by testimony before them , and then the judges shall judge whether it be a sufficient proof or not . if i devise lands to my executors for three years , for the payment of my debts , this is assetts in the executors hands ; but if i devise my land to be sold for the payment of my debts , it is no assets before it be sold . mich. . jacobi . it was held in the common pleas by the whole court , that in the kings case , the consideration of the money paid , is never to be proved . likewise in a common case of bargain and sale in consideration of money paid , where in truth none was paid , yet it is good , and the bargainee is not tied to prove the payment , for the bargainer may have an action of debt . if a legacy be granted out of leases , and a suit in the spiritual court , for this shall not be prohibited , but otherwise it is , if it were out of fee simple lands . he le versus frettenden . resolution upon two cases upon the statute of e. . for not setting forth of tithes , videlicet , a man possessed of corn sels it , and before two witnesses sets out his tithes , and afterwards privately takes away his tithes : and the parson sues him upon the statute of treble damages , for not setting forth of tithes : and the defendant proves by witnesses , that he set forth his tithes , yet this fraud is helped , for the words are without fraud or deceit . in the second case , one secretly sels his corn to one who was not known , and afterwards the vendee commands the vendor to cut the corn , which he doth , and takes away the whole corn without setting forth his tithes ; and the question was , who should be sued for the tithes : and the court held the first vendor should be sued , for it was fraudulent . if a man be found guilty of felony , and after receives his pardon , he shall not be legalis home , to pass upon a jury . if a venire facias be against an arch-bishop , the venire facias shall be tam milites quam alios liberos , &c. because he is a lord of the parliament . if a man be obliged in a statute staple , his copy-hold land is not extendable , but it is upon a statute of bankrupt . if a man have common in three acres , and purchase one of the three acres , his common is extinct . if a man of the cinque ports shall come to london , he may be there arrested , and shall not have the priviledge of the cinque ports . difference between those things which are in the prender , and such things that are in the render ; for if i take not such things as are in prender according to my prescription , it is void . if i have estovers in woods to be taken every other year ; if i omit to take them every other year , i cannot take them in the third year . but for rent , and such other things that are in the render , i ought to have it when ever i demand it , as it best pleases me . and note , that in such case one prescribed for eight loads of wood to be cut and taken , as appertaining to a messuage , which was held naught by the whole court , for the prescription should be laid for estovers to be imployed upon repairs of the said messuage , or to be spent in it : for a man cannot prescribe to have a prescription to come and cut down my wood , which is as much as i that have the free-hold can do . for the claim to take and sell my wood cannot be good . and the court held it a good prescription , to prescribe to have common every other year , although you shew not the commencement , as to shew what time of the year when it begins . if a man hath common of pasture , in divers closes and parcels of ground , where he hath some land of his own , there , and in all other cases where one is to prescribe , he need not to make his title to every peice , but to say , he hath common in loco in quo , &c. in t . alia , and need not to speak of the rest of the land in the residue of the feild , because he hath land of his own . common appendant belongeth to arrable land , not to pasture land. if two issues be joyned , and in the awarding the venire facias , these words , videlicet , quoad triandum tam exit istum quam praedictum alium exit superius junct . ) were omitted , and after a verdict such default was moved in arrest of judgement ; and the exception over-ruled , and held good , notwithstanding that omission . the whole court were of opinion , that local things shall not be made transitory , by laying the action in a forrain shire , as for corn growing in one shire , and an action of trover brought in another . comes cumbr. versus comitem dorset . it was moved by the defendant , that whereas the plaintiff had prosecuted a distring . jur. and onely eleven of the jury appeared , and the inquest remained to be taken for want of jurors : and that at such time neither plaintiff nor defendant desired a tales ; and afterwards the defendant in another terme prayed a tales of that writ which the plaintiff had prosecuted , and the court denied to grant it , because he prayed not a tales when the distress was retorned ; and if he would have a tales , he must purchase anew , a plur. distring . and if then the jury fill not , the defendant may pray a tales , and the court ought to grant it . and note , upon the first habeas corpus the defendant shall not have a tales , but in default of the plaintiff . if the chamberlain of the county palatine of chester make an insufficient return to the court of common pleas , upon a writ issued out of that court ; the sheriff shall be amerced , because the sheriff is the officer responsible to the court. the king hath power to make and create a leet anew , where none was before . a distress is incident of right , but in a court baron a prescription must be laid to distrain . j. rogers versus powell . my lord cook held that the surrender of a copy-hold in tail is not any discontinuance : and justice foster of the same opinion . in doctor husseys case in a ravishment de gard , wherein the judgement is penal , the habeas corpus was denied by the court to be amended , being a blank writ after a verdict , but was adjudged error . for the proviso in the statute of jeofailes , eliz. excepts actions upon penal statutes . one jury was impannelled of the town of southampton , and called to the bar , and made default ; and the men of that town shewed to the court a grant made to the inhabitants of that town , that no return should be made of the men of that town to be of any jury , and prayed the allowance of their charter , and the court appointed them to plead their charter , and it was done accordingly . trier versus littleton . a special verdict was found , whether fraud or not fraud ; and the jury did not finde the fraud expresly , but they found circumstances that the deed might seem thereby to be fraudulent ; but the court will not adjudge it fraud , where the jury do not expresly finde the fraud ; for the judges have nothing to do with matter of fact ; and so by the whole court no fraud . tenant for life , remainder for life , remainder in tail , remainder in fee , the first tenant for life suffereth a recovery , the remainder in tail is barred , although the second estate for life be no party . baron & feme seised of the wives land for life of the wife , remainder to the husband and wife in tail , and afterwards the husband doth bargain and sell the land by deed inrolled , and a precipe is brought against the bargainee , and he voucheth them in remainder : this is a good recovery to barr the estate tail. if an information be brought against three upon the statute of maintenance , and two of them appear , and the third doth not appear , the plaintiff may declare against the two that do appear , before the other appears , for it is but a trespass and contempt , as in trespass and conspiracy ; but it is otherwise in debt upon a joynt contract , for there the plaintiff cannot declare against one untill the process be determined against the other by the opinion of the whole court. if judgement be entred in trespass of oct. hillarii , the writ to inquire of damages may bear teste of any other return of that terme , besides of octab. hillarii , for the terme is as one day , and so hath been adjudged upon a writ of error in the upper bench ; but it is otherwise held in the common pleas. if a bargain and sale be void in part , it is void in all . if an officer or priviledged person of the court of common pleas , sue another priviledged man of any other court whatsoever , yet he of the common pleas that first sued , shall force the other priviledged person to answer in the common pleas ; but if a priviledged man be sued with another as executor , no priviledge lies . summons and severance lies between executors , plaintiffs ; and if one of the executors be outlawed or excommunicated , he may be demanded , and if he comes not , shall be severed by an award without process , after he hath appeared , and the other shall proceed without him ; but if he had not appeared , then summons , and severance shall issue out against him . fletcher versus robson . an extent upon a statute merchant issued out against robson the cognisor , and the sheriff returned , that the cognisor was possessed of divers goods , and seised of lands , which he delivered to the cognisee , and that the cognisee accepted of the land ; and because the sheriff did not return , that he had not any other lands , goods , or chattels , it was adjudged insufficient , and a new writ awarded ; but many held , that in the case of a cognisor it was well enough , but not in the case of a purchasor . if one knowledge a statute , and after a judgement is had against the cognisor , now against the cognisor the statute shall be preferred , but not against an executor . if a man plead a bond , knowledged to the king in the exchequer , it must be averred to be a true debt . if a debt be assigned to the king , in this case no priority of execution . if one staul a debt by . s. a year , this shall not stay my execution : the court were of opinion , that an extent would not be good at barwick , for the writ runs not there . if a judgement be given in a court of record , it shall be preferred in case of an executor before a statute : but if a man acknowledge a statute , and afterwards confess a judgement ; and if the land be extended upon the judgement , the cognisee shall have a scire facias , to avoid the extent upon the judgement , otherwise in case of goods , for therein first come first served : for if i have a judgement against one , and afterwards he acknowledgeth a statute , and by vertue of the statute the goods of him ( being dead ) were taken in the executors hands , then upon the judgement a scire facias was sued , and afterwards a fieri facias , of the testators goods : it was held , that the goods first extended were lawfully extended , and shall be good . a judgement was had against sir fr. freeman , and an extent came to the sheriff , and afterwards , and before any thing was thereupon done , one fieri facias against the executor upon a judgement , given before the acknowledging the statute , was delivered to the sheriff , and the question was , whether the extent or fieri facias shall be first executed . and note , if the land be first extended upon the statute , and afterwards an elegit , upon a judgement obtained before the acknowledging the statute , come also to the sheriff , the moity of the land extended shall be delivered to the plaintiff upon the judgement . hill . . jac. the case of villainage is within the statute of limitation , and in the case of m. corbet it was held , that the prescription of the seisin of the plaintiff and his ancestors , as villain , was more then needeth , and the issue thereupon taken was good by the whole court , after exception taken thereupon : and judgement was given for the plaintiff . in every elegit the sheriff must return , and set out the moity distinctly , unless they be tenants in common , and in that case he must return the special matter . an extent issued out against one greisley by the name of greisley esquire , who was at the time of suing out the writ made knight and baronet , and it was naught , and the plaintiff prosecuted a new writ . mich . . jacobi . a tenant by statute staple or elegit , that hath extended an abbots lease , or a lease made out of an abbots lease , is not bound to shew it , because he cometh in by act of law : but any other that cometh in under the lease , must shew it , by the opinion of the whole court. and note , that in hillary . jac. two inquisitions taken at several dayes by several juries upon one statute merchant , were adjudged naught ; one was taken of the land , and the other for land and goods : and extent of the whole fourth part was naught , for it should be of the moity of the fourth part : and mark , it was of a lease , which was but a chattell , and the sheriff might have sold it as goods , but seeing he had extended it , in this case he should receive benefit but as in a common extent . comyrrs versus brandling . a lessee that had a lease of the value of . l. and after the teste of the elegit , and before the sheriff had executed the elegit , assignes his terme to one , who assignes it over to the plaintiff in the scire facias , and afterwards , and before the last assignement the sheriff executes the elegit , and delivers the lease to the plaintiff , tenend , &c. for satisfaction of the debt , which came to but . l. . s. . d. & it was held by all the judges , that the sheriff could not deliver the lease at another value then what the jury had found it at ; and the sale made by the sheriff is as strong as if it had been made in open market : and that all the goods and chattels are bound after the teste of the elegit , and cannot be sold by the owner after the teste of the writ . if a later extent be avoided by an ancient extent , after the ancient extent is satisfied , the later extent shall have the land , according to his first extent , without any re-extent , by the opinion of serjeant hutton , if the husband charge the lease of the wife , and dieth , the wife shall hold the land discharged . hill . . jac. the earl of lincoln against wood , the earl of lincoln did arrest wood , upon a capias , upon a statute merchant , wood being in execution , obtained in the chancery an audita quaerela , and did put in bail there , and had a supersedeas , and was discharged of his imprisonment ; and the audita quaerela , and bail sent into the common pleas to be proceeded on . the cause of the audita quaerela was grounded upon the performance of the defeasons of a statute ; and after this case was debated for the bailment of wood , and held by the court to be good , it was allowed of . if the act for dissolution of monasteries had not given the land to the king , the founders ought to have had them . and if an hospital or religious house is impeached upon the statute of superstitious uses , it must be proved to be regular , for they must be religious that are dissolved , by e. . joules versus joules alderman purchased land of one , against whom a judgement was given long before the purchase , and the vendor afterwards became unable to pay the judgement , and long after the plaintiff in the judgement purchased a scire facias against the defendant , and had judgement against the defendant by default , and afterwards had an elegit , and by vertue of that the sheriff extends the land of joules the purchasor , who prayes the aid of the court , because the whole land was not extended , but he was forced to bring his audita quaerela . if i make a lease for years , reserving a rent during my life , and my wives life , if i die , the rent is gone , because she is a stranger , she shall never have the rent , because she hath no interest in the land ; if one of them die , nothing can survive to the other , and a limitation must be taken strictly , otherwise it is by way of grant , that shall be taken strongly against the grantor . if . tenants in common joyn in a lease for years , to bring an ejectment , and count quod cum dimisissent , &c. that is naught , for it is a several lease of their moities , and you must declare , quod cum , one of them demised one moity , and the other the other moity , and good . if a tenant in socage hath issue , and die , his issue being under the age of . years , the next freind of the heir , to whom the inheritance cannot descend , shall have the guard of the land , untill the heir come to the age of . years , and he is called guardion in socage , and in pleading a lease for life , you are never to alleadge the place where the lease was made , because it passeth by livery , which was executed upon the land. he that pleads a demise , ought to shew that the lessee entred , and he that pleads a descent , ought to shew that he entred : and an exchange is a good plea in bar , but it shall never be adjudged a good exchange , except this word escambium be used in the charter of exchange . hopkins versus radford . a defendant shall take no benefit of his own wrong . in sir james harringtons case , the original was returned quinque pasch . and the issue joyned that day , and the venire facias returned that day , and held naught by the court upon the first motion . a future lease cannot be surrendred but drowned . for things in action a deed of gift is void , as debts without specialty , although he say , goods , chattels , and specialties , but for other debts by specialty , and goods , it is good ; and for the debts in action after the death of the party administration is to be granted , and the administrator is to have the goods . rainer versus mortimer . one had judgement upon a scire facias to have execution , and a capias ad satisfaciendum returnable , . martini , and that writ was returned album breve , and a testatum thereupon , and the defendant taken , and this matter was moved to the court , and a supersedeas prayed , that the testatum issued out erroneously , because the capias was not returned ; and it was granted by the whole court , because the capias was not returned . one seised in fee may bargain and sell , grant and demise land to others , and their heirs , to the use of one for years , because he hath a fee-simple , but lessee for years cannot bargain and sell his lease , to the use of one for years . if a marriage is intended between two men , and one of them in consideration that the other hath upon the marriage , assured land to his son , he doth assume to pay to my son such a summ , immediately after the marriage ; if the money be not paid , the son must have the action , and not the father . mich . . jacobi . . one jury-man appear in court , and when he came to the barr to be sworn , he informed the court that he was eighty years old , and prayed to be discharg●d , and the court could not grant it , nor pass him by , and swear others , without committing error , except the parties would consent ; for it is error to skip a juror who is returned , if he appear , and therefore the juror was drawn by the consent of the parties . trin. . jacobi . upon a levari facias out of a court baron , goods cannot be sold without a custome to sell the goods : and if goods be attached by pone out of a court baron , the defendant shall not lose his cattle ; otherwise it is , if it be a process out of the common pleas , then the defendant loseth his cattle , for not appearing : if you lay , that you have a court time out of minde to be held before a steward , you must shew what pleas you have used to have conusance of . a sheriff returned but . onely upon a venire facias , and at the triall ten onely appeared , and a decem tales was awarded , and tried , and verdict for the plaintiff ; and this matter was moved in arrest of judgement , for that the sheriff had returned but . and the court were of opinion , that if . of them had appeared , that it had been good notwithstanding ; but because . onely appeared of the principal , therefore it was naught ; and judgement arrested for that cause . if a juror be sworn of the principal , and the jury remain , when the jury comes again , he shall be sworn again . trin. . jac. rotulo . dunnall versus giles . a special verdict , and the question was , a man being possessed of a terme , devises the whole terme to a. for life , and if he dies within the terme , to b. during the minority of c. and that c. when he comes to full age shall have the remainder of the terme , and held a good devise . to devise land , or terme , or lease , all one , it is an executory devise . if one surrender land to the use of an estranger , that is , to resty the use in reversion , for the land is in him immediately . if a man hath a rent in esse , you cannot grant that in reversion after your death ; but if i surrender to the use of one after my decease , is not good , by his opinion of warburton and daniel . if the sheriff shall by vertue of a fieri facias levy the debt and damages of a man , and make a return , that the said goods remain in his hands for want of buyers : the property remains still in the defendant , although the sheriff hath possession of the goods . a sheriff may sell goods levied upon a fieri facias out of his county . in watermans case , the issue was , whether a copy-holder in one town had common in land lying in another town , and the plaintiff shews that he is lord of the hundred of c. within which hundred one of the villages lie : and prayes a venire facias of the town next adjoyning to the said hundred ; and it was granted , and tried , and exception to the triall , for that the venire was not of both villages . an alien born being no free denizen may defend and bring a writ of error , and it is no plea to say , that he is an alien born . note , by the common law the lord of the mannour may come and take away a tree cut down upon the copy-hold land by his copy-holder , without laying a special custome for it . if there be an unlawfull marriage , as the brother doth marry his sister , and they have issue , and one of them dieth before any divorce had between them ; now after the death of one of them , the issue cannot be bastarded , as in cordies case , e. . e. . after a general imparlance one cannot plead an outlary in barr to an action of trespass or case , but it must be pleaded in abatement , except he be outlawed after the last continuance ; for you shall plead nothing in barr but what goeth to the pit of the action ; now the damages in trespass or case are not forfeited by outlary , as debt , because of the incertainty . to the owner of the soil on both sides of the way , of common right belong the trees that grow in the lane , whether he be lord or free-holder . the best badge of truth , is the usage of taking the profit of the trees . h. . rot . . where the court , ex officio , should inquire , and that omitted , the court may supply it ; but where an attaint lyeth , that is not to be supplied , as in a valore maritagii , the value is the point of the writ , and if that be omitted by the jury , never to be supplied by writ . cheyneys case , valore maritagii , and intrusion were at the common law before the statute , and the statute doth but inlarge the common law ; for by the statute the judgement is otherwise then at the common law. it is vain to plead the execution of a writ of seisin upon a recovery , but to plead that he did enter . mich . . jac. if i purchase land by a name , and alleadge it to be in a wrong parish , or shire , it is good , notwithstanding the mistake by the court. a stranger shall be bound by a law made for the publique good , but he must come within the place where it was made . the king cannot grant precedency in publique things , as to go by water , or by passage on the land , as by coach : if a bond bear date super altum mare , then it must-be sued onely in the admiral court ; otherwise it cannot be sued there . every bishop hath his cathedral and councel , and the councel and bishop there decide matters of controversie , the prebends have their names from their affording of help to the bishop , and in time of the vacancy of the bishop , the arch-bishop is guardian of the spiritualties , and not the dean and chapter . trin. . jac. rotulo . birtbrook versus battersby exception raken after triall . the action was laid in westmerland , and the jurata written at the end of the record , was ebor. ss . ura . inter , &c. and recites the day of triall in the county of york , and the place where the triall was , at york , and prayed that it might be amended , and it was granted to be amended , by the whole court. int. bullen & jarvis . the venire facias was made in this form , videlicet , liberos & legales homines de b. and it should have been de vicineto de b. and it was notwithstanding held good , and amendable by the roll ; for it shall be intended , that the jurors are inhabiting in the town of b. although the sheriff returns the jurors of other places , and none of them be named of b. and the venire facias was returned by . a. b. ar. without naming him vic. and it was amended by the court. griffin versus palmer , trin. . jac. rotulo . issue taken , whether the lands contained in the fine were ancient demesne or not , pretending they were parcell of the mannour of bowden in the county of northampton , which was pretended to be ancient demesne , and the doomesday book was brought into the court , and by that book it appeared , that the mannour of bowden was in the county of leicester , and not in the county of northampton , but the councel affirmed , that the mannour was both in the county of leicester and northampton , but it valued not , for the doomsday book was against the plaintiff . the court was moved to amend a venire facias , which was album breve , but the court would not grant it , although the sheriffs name was put to the pannell ; but if the sheriff upon the venire facias had returned , that the execution of that writ did appear in a certain pannell annexed to that writ , and had not put his name to the writ of venire facias , but to the pannell , in such case the court would have amended the venire facias . lessee at will cannot grant one his estate , if one occupy with tenant at will , this is no disseisin , to the lessor . if a tenant for seven years suffer trees to grow above the age of . years , they are timber , and it is waste to cut them . tenant at will shall pay his rent , when he holdeth over his terme , but tenant at sufferance shall not pay any rent . if a man holdeth over his terme , and pay his old rent , he shall be accounted tenant at will. if one being sick , giveth notes to make his will , and after by infirmity of sickness he becometh so weak that his memory faileth him , and these notes are made into a will , this is a good will , otherwise it is , if he become lunatique after the notes given . mich . . jacobi . one warter was committed to the fleet by the lord treasurer of england , and the prisoner was brought to the common pleas by habeas corpus , which was returned , and no cause of the commitment expressed , and for that cause the prisoner was set at liberty , and bailed . trinity terme . jacobi . hanson one of the attorneys of the common pleas delivers a note to the sheriffs clerk , of the names of divers jurors that were to be returned , and of divers others that were not to be returned , in a case concerning one butler , and for this offence he was put out of the roll of attorneys . in spilmans case ; if i have estovers in land , and cut down estovers , and a stranger taketh away the estovers , i shall have an action against him that taketh them away , although he have there common of estovers also . if the husband sow the ground , and die , the executors and not the heir shall have the corn ; but if the father sow the land , and dieth , or the heir sow the land , and the wife recover seisin in dower , she shall have the corn. the setting open a shop on the sabbath day is punishable by statute law , and so is a house of bawdry , and not to be dealt with by the high commissioners . so long as the land is occupied by him that hath the fee-simple , which did formerly belong to the order of the cistercians , it shall pay no tithes , but if he let it for years or life , the tenant shall pay tithes . hill . . jac. rotulo . a recovery was had upon a writ of entry in le post , for a common recovery between hartley and towers , in the county of bucks ; the attorney who prosecuted the recovery , by negligence did not file the writ of entry , which was prosecuted orderly , and all fees paid , when the recovery was passed . and in easter terme , . jac. it was moved that the writ of entry might be filed , and it was granted , although the tenant was dead , the writ of entry was returnable , octabis purificationis . mich . . jacobi . my lord hubbard , justice warburton , and winch , held , that when there were but three judges of the common-pleas they might argue demurrs , and if two of them were of one minde , and one of the other , the judgement should be given according to their opinions . my lord cook said , that for the body of the church , the ordinary is to place and displace ; in the chancell the freehold is in the parson , and it is parcell of his gleab ; tpespass will lie by the heir for pulling down the coat-armor , &c. of his ancestors , set up in the church . a pew cannot belong to a house . fraud shall never be intended , except it be apparent and found , and that conveyance which at the time of the making was good , shall never by matter ex post facto be adjudged to be fraudulently made , for before primo eliz. at the common law. a conveyance made for natural affection without valuable consideration is not to be avoided ; none shall avoid it , but such as come in upon valuable considerations . lands devised to one in tail upon condition , that he shall not alien , and for default of such , the remainder to r. in tail , this is a condition , and no limitation , by the whole court ; and the heir at the common law may enter for the alienation . matters of instance which are between party and party , as for tithes , and matrimony , are not to be dealt withall by the high commissioners , if they proceed inverso ordine , that cannot be holpen in the common pleas but by superior magistrate , if they be judges of the cause . if one in norfolk come within another dioces , and commit adultery in another dioces , during the time of his residence he may be cited in the dioces where he committed the offence , although he dwell out of the dioces , by cook , warburton , and winch. if the king grant lands to a. and his heirs males , and doth not say , of his body , he is but tenant at will , tamen quaere . a deputy of an office for bribery cannot make his master be punished corporally , but pecuniarily , equity shall not barr me of the benefit of law. note , the probate of wils and administrations did not belong to the ordinary originally , but to the common law. if two aliens be at issue , the inquest shall be all english ; but if between an alien and denizen , that inquest shall be de medietate linguae , h. . . a judgement given against a dead person is not void , but error , . ass . . a juror was committed to the fleet , for making his companions stay a whole day and a night , having no reason for it , and without the assent of any of the rest of his fellows , and after was bailed , but not untill the court was advised , e. . . in a writ of estate probanda , every juror ought to be of the age of . years . if i grant land to one , and his heirs , in the premises of the deed , habendum , to him , and the heirs of his body , he shall have the land in tail , and the fee-simple after the state in tail , when the estate is certain in the premises , the habendum shall not controll it . if one make two executors , one of seventeen years of age , and the other under administration , during the minority is void , because he of seventeen years old may execute the will of administration , during the minority , in such case be granted ; and the administrator brings his action , the executor may well release the debt . pigot and gascoins case . if a record go once to triall , and warning given , if the first attorney be alive , the plaintiff is not tied to give warning again , but if the attorney be dead , he is . if no place of payment be in a will , which appointeth money to be paid , there must be a request to pay the money , for he is not bound to seek all england over for him ; otherwise it is , if it were by bond. in every case where the plaintiff might have judgement against the defendant , there if the plaintiff be non-suit , the defendant shall have his costs , if the plaintiff be non-suit . trin. . jac. in cases of remitting causes from the inferior judge , the arch-deacon cannot remit the cause to the arch-bishop , but he must remit it to his bishop , and he to the arch-bishop . it was held by the court , that one might distrain for a legacy . in a special verdict the plaintiff must begin to argue first . olive versus hanmer . a writ of error was brought upon a judgement by nil . dicit , for want of a warrant of attorney , and the record certified , and a certior are to the clerk of the warrants , and error assigned for want of a warrant . and the court was moved , that a warrant might be filed , and it was granted , and a warrant filed accordingly . pasch . . jac. an action was brought against baron & feme : and an attorney appeared for the husband alone , and the court held , it was the appearance of baron & feme in law. pasch . . jacobi . sheriff versus whitsander . one judgement was confessed in trin. . eliz. rotulo . and afterwards in trinity terme . eliz. the defendant brought a writ of error bearing date the . of may , anno . and upon that writ the record was certified . may , and afterwards error was assigned in the upper bench , for want of a warrant of attorney by the defendant . and mich. . & . eliz. the warrant of attorney was received , and entred upon record by order of court of common pleas. and the like was pasch . . jac. rotulo . int. bathgrone and smith , and the like , mich. . jac. rotulo . inter smith & kent . crane versus colpit . question was , whether the attornement of an infant be good or not : and by the whole court it was held good by three reasons ; first , he gives no interest . secondly , it is to perfect a thing . thirdly , he is a free-holder . it was held in the case of gage an attorney , who as an administrator brought an action of priviledge , that his priviledge ought not to be allowed . and after a bill was filed against drury an attorney , as executor , and held , that the bill would not lie , but in both cases the suit should be by original . bearbrook versus read. the name of confirmation must stand , for sir francis gawdy was christened thomas , and confirmed francis , by that name he must be called . sir henry compton was sued for cloathes of his wife , bought without his command or privity : and the whole court were of opinion , that if the wife should buy merchandises , and thereof make cloathes , and wear those cloathes , although the husband know nothing of them , yet he shall pay for them . pasch . . jac. the court was moved , to know whether the wife of a bankrupt can be examined by the commissioners upon the statute of bankrupt ; and they were of opinion , she could not be examined . for the wife is not bound in case of high treason to discover her husbands treason , although the son be bound to reveal it : therefore by the common law she shall not be examined . an infant shall not be examined . if an administration be granted to one , during the minority of two infants , and one of them dieth , the administration continueth still . actions of debt . lovelace versus cocket , mich. . jac. rotulo . action of debt brought upon an obligation for the paiment of money at a certain day specified in the condition . the defendant pleads , that the plaintiff at the day of payment accepts of another bond for the payment of the said money , in satisfaction of the said . l. . s. and upon a demurrer held to be a naughty plea , for one bond cannot overthrow another . lea versus pain , hill. . jacobi rotulo . an action of debt brought upon an obligation with a condition to perform an award , the defendant pleads , that the arbitrators made no award . the plaintiff by way of replication sets forth an award , that the arbitrators did arbitrate of all matters , untill the date of the award , which was a moneth longer then the submission , and so pretends they exceeded their authority . the words were for all causes before the date of the award . another exception was , because the arbitrators awarded that the defendant should pay the plaintiff such a day of april , and doth not say , what year , or next following : and the court held that good enough , because the second day of payment was made to be such a day , and such a year : and it was held good enough , for if any new matters did arise between the submission and award , or , &c. the defendant ought to shew it . another exception was , that it was not said , that the award was made between the parties , but it shall be intended to be made between the parties , because the award was made de & super praemissis , and therefore it shall be implied , that it was made but of such things as they had power to deal in . the court was of opinion , that the award being de & super praemissis , the court shall not say , but that this was a cause submitted ; and except it had been discovered by pleading , that there was a new cause since the date of the award , which was made known to the wardsmen , the court is not to take notice thereof . scot executor versus herbert . the plaintiff in his declaration sayes the testator in his life-time was possessed of land for a terme of years ; and so possessed grants part of his terme to an estranger , reserving rent , and he grants his estate to the defendant . and that the testator died possessed of the reversion of the terme , and because the rent was behinde , the executor brings his action of debt for the rent , and the declaration was held naught , for that it did not appear that he that made the first demise was seised in fee , or in any other estate by which he could make a lease . norris and trussell wardens of the society of weavers in the town of newbury in the county of berks , versus j. scapes , pasch . . jac. rotulo . an action of debt brought , and the plaintiffs declare that queen elizabeth had incorporated them by such a name , and given them power to make by-laws , for the better governing their corporation , &c. and further shew that they made an order which was confirmed by the justices of assise according to the statute of h. . and for the breach of such order brought their action : the defendant pleaded that he owed them nothing , and tried , and a verdict for the plaintiffs , and hutton serjeant moved in arrest of judgement , and took three exceptions : the first , because the constitution was against law , to restrain one to exercise a lawfull trade . the second , the constitution was , that the offender should forfeit such a summ , and it did not appear to whom this forfeiture should go . thirdly , the plaintiff shews in his count , that the queen by her letters patents had appointed a. b. c. to be wardens for one year , and shews not which those that brought the action were elected , which ought to be , to intitle them to that action . it was against sense to barr all their own apprentices , it doth not appear how many wardens should be , and they do not intitle them to the action by the corporation , the law is altered ; and judgement was given for the defendant . bret versus averder , mich. . & . eliz. debt brought upon an obligation , to perform an arbitrement : the defendant confesses the arbitrement , but pleads in barr , that the plaintiff did not require him to make payment , and to that plea the plaintiff demurrs ; and it was adjudged no plea ; for the defendant at his perill ought to make payment , and the plaiutiff ought not to make a request . hales versus bell , trin. . eliz. rotulo . the plaintiff brought an action of dèbt upon an obligation , with a condition for the payment of . l. within fourteen dayes next after the return of one russell into england , from the city of venice , and then the obligation should be void ; the defendant pleads in barr , that the said russell was not at venice , upon which plea the plaintiff demurrs ; and adjudged a naughty plea ; for where part is to be done within the realm , and part out of the realm , the plea ought to be triable within the realm . garret versus harrison executor , trin. . eliz. rotulo . to an action of debt upon a bond brought against him as executor ; the defendant pleads six judgements in barr ; the plaintiff replies , that they were by fraud and covin ; and the jury found for the plaintiff , that two of the six were by covin ; and williams moved in arrest of judgement , because the jury ought to have found all ; but glanvile said , that if any part of the plea be insufficient , defective , or false , the issue shall be found against you , for your plea is one intire thing ; and he said , that the plaintiff should have taken issue upon one onely , as in an obligation , with diverse things in the condition . walmsley held , that by the plea the defendant had confessed implicatively , that you have sufficient to satisfie those six judgements , and no more . so that if any part be found against you , this is assets ; and judgement was given accordingly for the plaintiff . green versus wilcox executor . to an action upon an obligation brought against the defendant as executor , he pleads that the testator was obliged to a. in . l. which remained due to him at his death ; and that the said a. recorded against him in the common pleas , and averres that it was a true debt , and the persons and matters to be the same , and that he had no assetts beyond that ; and the plaintiff replies , that the said recovery was had by fraud and covin between them , to defraud him of his debt ; to which plea the defendant demurrs , specially because he had in his plea averred , it was a true and just debt , so that it could not be by covin . trin. . eliz. it was adjudged for law by the whole court , that if a fieri facias be directed and delivered to the sheriff , he may not break the outer door of the house , and enter , and do execution ; but if the outer door be open , then he may enter by that , and then he may and ought to break the door of an entry or chamber which is locked , and break open any chest which is locked , and take the goods in that in execution ; and if he doth it not , an action of case will lie against him . in debt , if it be demanded by original , the process is summons , attachment , and distress ; and for default of sufficiency upon a nichil , returned process to the outlary , if the summons or attachment be returned , an essoyn lies . and wager of law lies if the count be upon a simple contract . and if the parties be living which made the contract or debt against an heir , the writ shall be brought in the debet ; but when it is brought against an executor , or administrator , or of chattels , it shall be in the detinet tantum . the judgement in debt where the demand is in the debet & detinet , is to recover the debt , damages , and costs of suit ; and the defendant in misericordia : but if the defendant denies his deed , then a capias for his fine issues out . and if the original be in the detinet for chattels , then the judgement is to recover the thing in demand , or the value thereof , and costs , and damages ; and the process of execution is a distress to deliver the chattels , or the value , and damages . and if the cause of action be against executors or administrators , the judgement is to recover the debt and damages of the testators goods , if the executor hath so much in his hands , and if he hath not , then the damages of the executors or administrators proper goods . and if the sheriff upon a scire facias return a devastavit , then a fieri facias , or elegit , may be sued out to levy the debt and damages of the executors or administrators proper goods . and if the executor plead , that he never was executor , and it is found against him that he hath administred but one penny , the judgement shall be to recover the debt and damages of the executors own goods . debt brought upon a record , the execution shall be brought where the record remaines . mich . . jac. rotulo . throckmorton administrator , versus hobby . the aministrator releases , and afterwards the administration is revoked , and declared by sentence to be void and null , and then the release is void . trin. . jac. rotulo . brookesby & vaux versus m. tresham executor of the testament of t. t. and exception was taken to the defendants pleading , because the defendant pleads divers statutes to divers persons ; and the plaintiff shews that some were by fraud , and that others were for performance of covenants , that were not broken , and for other statutes that they were satisfied , and the defendant in pleading a statute by three , sayes , two of them did not pay , and doth not say , that the three nor any of them have not paid . in pleading of a statute it must be generally pleaded , that it is a true debt . and my lord cook held , that a man without a defeasance may plead , that the statute was acknowledged for payment of a lesser summ ; and it was held , that if the count be good , and the plea naught , and replication naught , if it appears that the plaintiff had good cause of action , the plaintiff shall have judgement . and warburton said , that one may plead generally , that the statute was acknowledged by fraud , without shewing the special matter . speak versus richards . the plaintiff brought an action of debt for money levied by the sheriff upon a levari facias , and not paid to the plaintiff upon the sheriffs return upon the levari issued out of the chancery , and that it would well lie . but note , the plaintiff had concluded his demurrer ill , for he demurring to the defendants plea , which was grounded upon a release should have demanded judgement , if the defendant should be admitted to plead a release , which was made after the sheriff had made his return . trin. . jac. rotulo . parson versus middleton . action of debt brought to be tried in durham , and the record sent to the chancellor of durham , because the bishops sea was empty , and before the day given by the judges , a bishop was elected , and he sent the record , and not the chancellor . mich . . jac. rotulo . maddock versus young. the plantiff brought an action of debt for an escape against the sheriff upon a capias utlegat , after judgement ; the defendant pleads that there was no such record of the recovery of the debt and damages ; to which plea the plaintiff demurrs , pretending he had not directly and plainly answered the declaration , but judgement was given for the defendant . where a capias is not the process , a capias ad satisfaciendum is not the execution ; and no capias lies against a countess or baroness ; and at common law no capias ad satisfaciendum would lie , but onely where the action was vi & armis , but onely a levari facias . mich . . jac. rotulo . bawkey versus isted . an action of debt brought upon the statute of e. . for not setting forth of tithes of land lying within the parish of horsted parva , the defendant pleads nil debet per patriam , and after triall and a verdict , exception was taken to the venire facias , because the venire facias was of horsted parva , and not of the parish of horsted parva , but the court were of opinion , that it might be either of the town or parish of horsted parva , and judgement was given for the plaintiff , because both the town and parish were named in the record . an action of debt brought against an administrator , who pleads , that the intestate was indebted to him , and that he had fully administred , and that he had no goods or chattels which were the intestates , beyond goods and chattels to the value of . l. which the administrator retains towards satisfaction of the said debt to him due , the court were of opinion that the administrator ought to plead generally , fully administred , else the debtor should be prejudiced in taking issue upon that plea , the case was between fox and andrew . pasch . . jac. rotulo . sharpley versus hurrell . action of debt brought upon an obligation , and the defendant pleads the statute of usury , and sets forth , that one ship went a fishing to new-found-land , which voyage might be performed within eight moneths , the plaintiff delivered fifty pounds to the defendant , to pay sixty pounds upon the return of the ship to dartmouth from fishing , and if the ship should not come to new-found-land , by reason of leakage or tempest should return to dartmouth , then the defendant should pay the principal debt , and if the ship should never return he should pay nothing ; and it was held by the court that it was not usury , for if the ship stayed at the new-found-land two years he should pay but . l. an action of debt brought against an executor , who pleads , that he had nothing in his hands at the time of the writ purchased , and saith not , nor any time after the plea , is not good ; but if the plaintiff had took issue , that he had assets at the day of the writ purchased , and it had been found for the plaintiff , now the plea is made good . if an action of debt be brought against two executors , and one of them onely appear , and confess the action , the judgement shall be against both of them , of the goods of the testators in the hands of all the executors , and the damages of him that appeared onely . trin. . jac. rotulo . houldsworth versus barker . an action of debt brought upon a bill , the defendant pleads the bill was delivered to the plaintiff , upon a condition not performed , and it was held a naughty plea by the whole court. hill . . jacobi rotulo . harrison & al. at the suit of fleet. an action of debt brought for . l. and the plaintiff counts upon an emisset ; harrison pleads , that he and the other do not detain from the plaintiff the said . l. nor any penny thereof ; and the other pleads to issue , and a special entry made , that the issue should remain , untill the said harrison had perfected his law , or made default , and he at the day did wage his law , and judgement was , that the plaintiff should take nothing by his writ . pasch . . jac. rotulo . rayson versus winder . an action of debt brought upon an obligation , with a condition to perform an award , which was good in part , and void in part , and the breach assigned upon the good part , and the award was to pay money , but no time of payment , & afterwards it was demanded , & the award is good . gasington versus burcher knight , turner , jones , and bowden , for . l. burcher was outlawed , turner and jones appeared by supersedeas , and bawden appeared by another attorney , and the plaintiff declared against them three that appeared upon an account ; turner offered to wage his law , and the others plead nil debent per patriam ; and the court was moved pretending that turner shal not be admitted to wage his law , because the defendants should not sever in plea , but the court upon sight of divers presidents were of another opinion , although it was urged that turner & jones joyned in a supersedeas , and therefore pretend that turner should not sever in plea from jones , that pleaded nil debet per patriam , but that exception was disallowed , for although two appear by supersedeas , yet they may vary in plea. mich . . jac. rotulo . and the imparlance entred , . jac. rotulo . an action of debt brought by lee versus arrowsmith upon an emisset , for divers parcels , and upon an account , and the parcels , and account amounted to the summ of . l. but in the imparlance roll , the parcels and summ accounted for , did not amount to . l. by . l. and this variance was moved in arrest of judgement after a verdict , but the court were of opinion , that it was amendable , because ball the attorney made oath , that he commanded his clerk to summ the account for . l. to maintain his writ , and therefore the roll was amended . hill . . eliz. rotulo . action of debt brought by gage versus gilbert , upon an obligation for . l. bearing date , first of february , anno . eliz. the defendant pleads a general release made to him by the plaintiff , bearing date after the making of the bond , of all dues and demands whatsoever , except an award made between the plaintiff and one g. w. why r. r. then dead , and one obligation of . l. for performance of the said award , bearing date . april , . eliz. and whether these words ( bearing date . april ) shall have reference to the arbitrement , or bond , was the question , upon a demurrer upon the replication , in which the plaintiff shewed the special matter that the award was made the . april , and that the bond was made the said first of february , and it was adjudged that these words , bearing date , should have reference to the award , and not to the bond. and if the heir pleads ciens per discent , besides one acre , if the plaintiff please he may have execution of that acre ; or if the plaintiff plead that he hath assets beyond that acre , and it be found that he hath ten acres more , the plaintiff shall have execution of the land onely , and not of his person : as it is where the heir pleads , that he hath nothing by discent generally , and it is found against him , that land , and all other his land which he hath , and his body are liable to the judgement , by a capias ad satisfaciend . fieri facias , or elegit . if a man be retained in london , to serve beyond sea , he may have his action for his wages in england , in any county . and the like of an obligation bearing date at roan in france , it may be sued in england , alleadging the place to be in such a county , where he brings his action . and note , that debt may be brought in the common pleas , without original , against any officer or minister of the said court , by bill exhibited to the court , but no process of outlary lies upon that ; and the judgement upon that , is , that the plaintiff shall recover his debt , and costs , and shall have an attachment , ad satisfaciendum , but no exigont ; for because it is not by original ; and all the process by bill shall be returnable at a day certain : but no bill lies against a serjeant at law. and note , that the judges , serjeants , and officers , clerks , attorneys , and ministers of the court may have an attachment of priviledge out of the said court , without an original to arrest any to them indebted , or for any personal cause to proceed upon it , as if it were by original , but no process of outlary lies thereupon , and such process of attachment shall be returnable at a day certain , and not at the common return , and they may be returned from day to day . if a man be bound to perform an award of arbitrators , and they make an award accordingly , that one shall pay money , he may have his action of debt for the money , and declare upon the award : and afterward may have another action upon the obligation , for not performing the award , by the opinion of the whole court , mich. . caroli . an action of debt brought by an executor ; the defendant pleads an outlary in the person of the executor , and demands judgement , if he ought to answer his writ ; the plaintiff demurrs in law to that plea ; and judgement was given , that the defendant should answer over . wolly versus b. and his wife , trin. . eliz. rotulo . an action of debt brought by husband and wife as executrix : the defendant pleads in barr an outlary in the testator by an estranger , which is in its force ; and upon a demurr and solemn debate , adjudged a naughty barr. trin. . eliz. rotulo . the like plea pleaded to an executor that brought an action of debt , and adjudged no plea. and dixon administrator of collins , exhibited a bill against fawden an attorney of the common pleas , and he pleads in barr an outlary against the administrator , and adjudged no plea. mich . . ed. . rotulo . an action of debt was brought against j. r. de w. in com. l. chapman , the defendant appeared by his attorney , and offered to wage his law , and essoyned ; and at that day the plaintiff appeared , and the defendant being solemnly required , one j. r. came to answer the plaintiff as defendant in that action , in his proper person , and offered to wage his law ; the plaintiff said , that j. r. now appearing to wage his law , ought not to be admitted , because the said j. r. is not that person which the plaintiff prosecutes , because this i. r. appearing , is i. r. de w. in com. l. jun. chapman , and he who the plaintiff prosecutes is i. r. de w. in com. l. sen. chapman , both of them at the purchasing the plaintiffs writ , living at w. and that he agreed with the defendant so to do , therefore because i. r. de , &c. hath not appeared to wage his law , prayes judgement : the defendant confesses such matter , and sayes , that he beleiving that the writ was prosecuted against him , appeared by his attorney , and offered to wage his law ; and prayes to be discharged of the debt : and the other i. r. being exacted , appeared not : and the court would advise , but no judgement for the plaintiff . hill . . eliz. rotulo . the lessor makes a lease by indenture for years , and the lessee grants over his whole terme ; and the lessor grants over the reversion , and it was adjudged that the grantee of the reversion should have an action of debt for the arrears of rent , against the assignee of the terme , and not against the first lessee . hill . . eliz. pasch . . eliz. rotulo . an action of debt brought against an executor in the debet & detinet , for rent due in the time of the executor , upon a lease made to the testator , upon a judgement given in the upper bench , and that judgement was reversed in the exchequer , because it was not in the detinet alone ; but afterwards in the upper bench. int. dominum rich. & frank administrator for arrears due , after the death of the intestate , it was adjudged good in the debet & detinet , and also in the common pleas , trin. . jac. rotulo . mich . . & . eliz. rotulo . an action of debt brought , to which the defendant pleads an outlary against the plaintiff in its force , the plaintiff replies the general pardon granted by parliament ; the defendant demurrs , and judgement , that he should answer over . mich . . & . eliz. ralph rogers brought an action of debt upon an obligation of . l. and judgement was entred by the clerk upon a nichil dic . that the said roger should recover , &c. and for that default the defendant brought his writ of error to reverse the judgement given for ralph ; and when the record was certified , the judges of the then kings bench would not proceed . and afterwards the judges of the common pleas upon a motion , and before another writ of error brought , amended the mistake of the clerk. and justice walmsley would have committed keale the clerk to the fleet , for his carelesness , but afterwards the amendment was withdrawn by the court , and upon further advice , the roll made as it was before . an action of debt was brought upon a single bill for payment of money upon demand , and the plaintiff declares generally , that he often had requested , &c. and serjeant harris demurres to the declaration ; and the opinion of the court was , that he ought to plead : yet if the defendant had demanded oyer of the bill , and upon that have demurred , it had been a good demurrer , because one special demand was in the bill , and no special demand alleadged in the count. mich . . iac. burnell versus bowes . action of debt brought upon a bond , and the plaintiff in the imparlance roll had counted upon a bond made the tenth of march , and an imparlance thereupon untill the next terme , and in the next terme he declared , as of a bond made the tenth of may , and the defendant pleaded per dures , and it was entred of record , and the next terme after entry thereof the plaintiff moved that that mistake might be amended , and at first it was denied to be amended , because the defendant had pleaded to it , and by that amendment his plea should be altered , as if he had pleaded , that it was not his deed ; and the cause of his pleading that plea was the the mistake , and if that mistake should be amended , he would be trised and overthrown ; and upon the first motion it was denied to be amended , but afterwards granted to be amended by the whole court , for the imparlance was entred , hillar . first of james , and the issue was pasch . second of james , but the defendant was admitted to plead a new at his pleasure . mich . . jac. rotulo . fitch versus bissie . an action of debt brought upon an obligation , with a condition to pay money yearly , according to the forme and effect of the indenture made between the plaintiff and defendant ; the defendant pleads that there was not any such indenture made between the plaintiff and defendant , as is in the condition supposed : and the plaintiff demurrs upon that plea , for that the defendant is estopped to plead that plea. king and his wife executrix of j. wright , plaintiffs , brought a scire facias after the said executrix came to full age , against death and his wife , administratrix of w. d. to have execution of a judgement had by j. d. and h. e. administrators , during the minority of the executrix , upon a bond entred into , to the testator , and whether a scire facias lay by the executrix or no , was the question ; and by the better opinion of the court it did not lie . mayor and burgesses of linn regis , in norfolk , mich. . jac. rotulo . brought an action of debt upon a bond against one pain , and it was ( ad respondendum majori & burgensibus de linn regis in comitatu norfolciae , ) pain pleads , that it was not his deed ; and a special verdict was found , that the mayor and burgesses were incorporated by the name of majores & burgenses burgi de linn , & non per aliud . and whether the omission of this word ( burgi ) should barr the plaintiffs , was the question : and judgement was given by cook , warburton , and nichols , for the plaintiff ; for cook said , that if the essential part of the corporation was named , it was sufficient : and in this case the mayor and burgesses was one essential part , and linn regis is another essential part , and those two were duly expressed , and sufficient to maintain the action ; and cook said , that those words ( et non per aliud ) shall be intended to be non per aliud sensum & non literae ; and of the same opinion were the other judges there . nichols versus grimwin , mich. . jacobi , rotulo . or hill. in the same year , rotulo . the plaintiff brought his action upon a bond , the condition whereof was performance of an award , for and concerning all matters , causes , suits , and demands whatsoever , had , moved , or depending , &c. so as the said award be made , &c. the defendant pleads no such award made , the plaintiff by reply sets forth the award , it was made de praemissis , to wit , that the said i. should clearly depart with , and avoid out of her house , in which she then lived , and that the said i. should carry away all the hay , &c. the defendant re-joynes , and sayes , no such award ; and a verdict for the plaintiff ; the defendant moved in arrest of judgement ; for that the award was made but of one part , and so void ; but judgement was given for the plaintiff ; for though the award be made but of one part , yet if the defendant may plead it in barr of the other action brought against him for the same cause , in all such cases the award is good . but my lord hubbart and nichols took this difference upon these words ( so that ) for then the arbitrators must make their award of all such things which are in controversie , and in such manner as the condition prescribes ; but if the parties put themselves by parroll , if the arbitrement be made of one part it is good . and hubbart said , that in all arbitrements , whether by bond , or parroll , they ought to be reciprocal , and to be made in such manner , that it may make an end of all controversies between the parties . for if a man be bound in a single bill , and put it to arbitrement , and the arbitrators order that the obligor pay to the obligee a summ , and do not award that the obligee shall seal a release , or that the money paid shall be in discharge of the said bill , the award is void . but in barpools case the submission was by parroll , for money due before the submission ; and the award was , that he should pay such a summ for the same debt , and good ; for the award shall inure to a dischage . see paschals case , . rep. stutfield plaintiff , grony defendant ; in trinity terme , jacobi , rotulo . the defendant pleads to a bond taken by the sheriff for his appearance in the kings bench , die sabbati proximum post oct. martini , that he appeared at the day ; and the court of common pleas gave him a day to bring in the record of his appearance by mittimus issuing out of the chancery , the record was certified , videlicet , that he appeared lunae post xv : am martini , which was after the day , yet it was adjudged good ; for if the appearance was the same terme , it is good , though it be not the same day . serle against harris , trinity terme , . jacobi , rotulo . judgement is there entred by non sum inform . against harris , harris brings a writ of error upon that judgement , and assignes for error , that the record was fr. harris de brownton . and the original filed to warrant that judgement was fr. harris de browton , and there reversed for that variance . hamond versus jethrell , mich. . iacobi , rotulo . hamond brought his action of debt upon a bill obligatory , for the payment of money , and no day limited in the bill for the payment thereof : but after the words ( in witness whereof , &c. ) these words were written , nevertheless it is agreed , that the said jethrell shall not be hereby compelled or required to pay the said . l. untill the said jethrell have recovered against b. hudson the summ of . l. or more , upon a bond of . l. wherein the said hamond , &c. the defendant demands oyer of the bill , and hath it , memorandum that j. w. j. &c. and demurrs in law , and shews that the plaintiff had not alleadged any day of payment , nor when it was requested ; and the declaration adjudged good notwithstanding : and my lord cook held , that whatsoever comes after these words , in witness , &c. is no part of the bill , but words after , in witness , &c. may be a condition , and must be pleaded , and not demurred upon : and henry the sixth , direct in this point , and so the third report . an action of covenant brought upon words of covenant in indenture after in witness , &c. and above the seal , and held good and maintainable . saaint-john versus cracknell , mich. . jacobi , rotulo . an action of debt was brought upon the statute of the . of henry the sixth for . l. for election of burgesses in parliament , and it was tried , and a verdict for the plaintiff . and serjeant moor moved the matter insuing in arrest of judgement . first , the statute directs the sheriff to issue out his warrant to the mayor , if there be one , and if no mayor , then to the bailiff : and it appeared by the court that the sheriff made his warrant to the bailiff , and do not shew that there was no mayor there : and the exception disallowed ; for if there was a mayor , the defendant ought to shew it by plea. secondly , that the plaintiff doth not alleadge that the warrant made to the bailiff was under the sheriffs seal , as the statute directs : and the court held the count good notwithstanding , because the declaration was , that the sheriff by vertue of a writ to him directed , made his warrant to the bailiff : and if it was by vertue of the writ , it shall be intended to be under his seal . hope versus holman , mich. . jacobi , rotulo . debt upon an obligation , the defendant pleads a forreign attachment in london , and the plaintiff demurrs , and the exceptions were ; first , that the defendant had attached the moneys in his own hands by way of retainer , and so the custome unwarrantable . secondly , it appeared that judgement was given in the mayors court , by the default of him in whose hands the money was attached : and it appeared , that the defendant which brought the action in london , and he in whose hands the attachment was made , and that made default , was the same person ; and it is a contrariety , that the same person should appear and not appear , and a prescription for that is naught ; and the custome is in london , that the recoveror in london ought to finde sureties , that if the debt be discharged within a year and a day , then to pay the money , and did not appear by the record , that he found sureties , which was an incurable fault , and so adjudged by the court. potter versus tompson , hill. . jacobi , rotulo . to one obligation with condition to make assurance of lands to such uses therein expressed ; the defendant pleads , that he made a feofment of the same lands to other uses , which the plaintiff accepted ; the plaintiff demurrs , and it was adjudged a naughty plea ; for he ought not to vary from the condition . higgenbotham versus armot , hill. . jac. rotulo . action of debt brought upon a retainer , in the office of an husbandman for one year , and so from year to year ; the defendant wages his law , and at the day to wage his law , the court refused to accept it , for that he ought not to wage his law for wages ; yet if the retainer were not for a year at least , the court seemed to be of opinion that he might wage his law. vernon versus onslow , pasch . . jac. rotulo . upon an action brought upon a bill for . l. the defendant demands oyer of the bill , was pro octogesimis libris , and to that the defendant demurrs , and judgement for the plaintiff . hutton cited the case in cooks . rep. rowlands case . and another in mich. . & . eliz. rotulo . proseptingentis libris , and the bond was proseptungentis libris . and another , mich. . jac. upon a bill for seventeen pounds , and adjudged a good bill . young versus melton , trin. . jacobi , rotulo . an action brought upon a bond for performance of covenants ; the defendant pleads conditions performed . the assignes , the breach for non-payment of rent , and pleads in this manner , that in december he demised to the defendant one wine-cellar , &c. for one year ; and if the defendant would hold the wine-cellar for three years paying . l. yearly during the said terme ; and alleadges non-payment of the rent of on quarter in the first year : and the defendant demurrs ; and the court were of opinion , that the reservation had reference as well to the first year , as to the two years following : and in that case cook said , that if a man demise , &c. reserving rent to himself , the heir shall not have the rent , but if the rent be reserved generally , the heir shall have it . whickstead versus bradshaw , pasch . . jac. rotulo . there was judgement entred against the said b. and after the bail of bradshaw , brought a habeas corpus to the marshalsey , bradshaw being a prisoner there , to have his body before the judges of the common pleas to be committed in execution , in discharge of the bail , but before the returne of the habeas corpus , the said bradshaw had brought a writ of error returnable the day following ; and when he came to be committed , the court doubted , that their hands were tied by a writ of error , by reason he could not be committed upon the judgement , and yet they would have discharged the bail , if they knew which way , therefore quaere . gerrard & al. versus dannet , hill. . jac. rotulo . judgement was had upon a bond by non sum inform , and a writ of error brought for that the christian name of the defendant , attorney was left out in the imparlance roll ; but it was in the roll , whereupon the judgement was entred , and a warrant of attorney entred accordingly : and the court was moved , that it might be put into the imparlance roll , which was granted upon sight of the judgement roll , and warrant of attorney entred . if a man be bound by award to pay one . s. and i at the day offer it , and he refuseth it , or comes not to receive it ; i must plead that i was ready to pay ; and shall not plead an vncore prist . because it is upon a collateral matter . an obligation was made to pay . l. . s. and eight ( not saying pence , or any thing else ) an action of debt lieth for the . l. . s. wilde versus vinor , trin. . jac. rotulo , or . debt upon an obligation to perform an award . the defendant pleads , that the arbitrators made no award ; the plaintiff replies , that the defendant by writing did revoke , and null the authority of the arbitrators . foster held the bond was forfeited , although he might revoke , the plea was that he did discharge the arbitrators against the form of the condition . my lord cook held , that the power was countermandable , if the submission be by writing , the countermand must be by writing , if by word i may countermand by word . if two binde themselves , one cannot countermand alone . if obligor or obligee disable by their own act to make the condition void ; the bond is single , h. . if i am bound to infeoff a. and i marry her before the day , the bond is forfeited , e. . . . the great doubt was , because no express notice , but notice was implied . and the bond forfeited , because he did not stand to it . judgement for the plaintiff . parker versus rennaday , trin. . jac. action brought upon a bond for . l. the bond was in italian in these words , in cessanta libris , and held a good bond for . l. o. k. ux . ejus admin . versus needham , who was bound to the intestate in a bond , and pleads , that administration of the intestates goods was committed to him by the archbishop , the intestate having bona not abilia , before it was committed to the plaintiffs wife . the plaintiff replies , that the administration committed to the defendant was revoked and made void ; to which the defendant demurrs , pretending his administration to be a release in law , but it was otherwise adjudged . but if the debtor were made executor , then the debt is released : like unto an administrator during the minority , he may do all for the good of the infants , but nothing to their prejudice , if an executor marry the debtor , it is no release in law : judgement for the plaintiff by the whole court. lawrance and althams case ; if i have no means to gain my right but by action if i release my action , i release the thing it selfe , because i release my means to come to my right . if i release all actions i may have jus prosequendi . a release made by the testator shall be no barr to the executor to bring a writ of detinue , because it continues a wrong still to the executor . a bond to pay money at michaelmas , may be released because it is a debt , otherwise it is of a rent reserved by lease : the like it is of a single bill to pay money at four dayes , if the first day be broken no action , untill all the dayes be past ; but in case of a lease , after the first day , debt doth lie ; in the first it is a debt , but not in the other . quarrels , controversies , and debates are all one , that is all causes of quarrels , controversies , and debates , are more large then actions : and suits are more then q. c. & d. and by release of suits , executions are gone , release of duties executions are gone : neither fraud nor might can take a title without right . demand is most large , and by it rents are gone , executions gone , incidents gone , as releif , warranties gone , all causes of demand gone , actions and a mans right gone . when a condition is to arbitrate of all matters between , &c. there if the matters be not made known to the arbitrators , they are not bound to arbitrate more then they know for , if it appear to the court that all matters committed to the arbitrators be not arbitrated , the award is void ; but if the submission be of all matters between , &c. so that now all must be arbitrated , or else it is void : and in every award there must be satisfaction of that which was awarded . powel versus crowther trin . . jacob. rotulo . det port e un . three executors which appeared at several terms , and plead severally , ne unques execut . the plaintiff proceeds to triall against one of them , and was non-suit . and then one of the other defendants take the record down by proviso , and the plaintiff was again non-suit , and both the defendants desire costs , before the third issue was tried : but costs was onely given to the first , and denied to the second , for his trial was erroneous , because by the first triall the originall was determined . if a defendant wage his law , no excuse of sickness , or water , can save his default ; but in real actions he may excuse himself by such accidents . if the condition of a bond be to discharge a messuage of all incumbrances , there one may plead generally that he did discharge it of all incumbrances ; but if it be to discharge it of such a lease , there he must shew how . norton versus sims pasch . . iacob . rotulo . debt upon a bond entred into by an under sheriff to his high sheriff , that the under sheriff shall not meddle with the execution of executions , and shall discharge the sheriff from all escapes , and the plaintiff shewes a breach in the under sheriff for an escape ; by reason whereof , the sheriff paid the debt and damages : question was , whether this covenant be good , or not judgment for the plaintiff . a high sheriff may make an under sheriff to be at will. an under sheriff hath the same authority an high sheriff hath : it is a void condition to save a man harmless from all men , but good , if it be special : if the condition be to discharge and acquit , i must shew how : an under sheriff was before the conquest . a bond made to the sheriff by the under sheriff , to discharge of all escapes , this is good and lawful . if any part of the condition of a bond be against a statute-law , it is void in all : but otherwise , if part be against the common-law . see boswels case . rep. when a man is under sheriff he may do all ministerial things the sheriff may do , but not judicial . if the under sheriff will covenant , that he will not meddle with executions above . l. this covenant of his own accord is good : if a sheriff binde his under sheriff , that he shall not return venire facias , nor intermeddle with executions , untill he be acquainted , it is against law , and naught by all the court. a bond to perform divers covenants , some against law , and others lawfull , it is good for lawfull things , and void for the rest . the death of one of the parties in an original writ doth abate the writ , it is otherwise in a judgement . if husband and wife sue a scire facias , and the husband dieth , the scire facias shall abate ; for it is no more a judicial writ , but as it were an original to revive a judgement . the court were of opinion in the case of sir h. dowckray , that where he had delivered money to his servant to provide victuals ; and the servant buyes the victuals in his masters name , and payes not for them ; and afterwards an action is brought against the master for the money , and he offers to wage his law ; and the court held , he could not safely wage his law , because the victuals came to his own use , and therefore he is chargeable , and must have his remedy against his servant . but if the master did forbid the tradesman to deliver any wares , except his man paid for them ; in that case if the tradesman deliver wares , the master may safely wage his law , as it was adjudged in sir h. comptons case . mantell versus gibbs , trin. . jacobi , rotulo . an action of debt brought upon an obligation ; to which the defendant pleads , that an estranger was imprisoned by another stranger , and kept in prison , untill the defendant , as surety of the stranger , made the bond ; and it was held a naughty plea , and a repleader awarded . alston versus walker , mich. . jacobi , rotulo . land was mortgaged , and a promise , that if the mortgager at such a time and place should pay the money to the mortgagee , his heirs , or assignes , that then the mortgage should be void ; the mortgagee died , and the money was paid to his executors ; and it was adjudged to be no performance of the condition , for the executor was not named , and the money ought to be paid to the heir , who should have the land , if the money were unpaid , and not the executor . sturges versus dean , trin. . jacobi , rotulo . an action of debt brought upon a bill for money to be paid within fifteen dayes after his return from ierusalem , he proving his being there ; the defendant pleads , that he did not prove-his being there ; to which the plaintiff demurrs , he making proof , that is , if it be true . sir edward cook and daniel held , that the proof should be made upon the triall , and the proof should be subsequent . but warburton and foster held , that the proof shall be precedent , because it was restrained to a certain time : but it had been otherwise if no time had been appointed . norton versus goldsmith , trin. . iac. rotulo . an action of debt brought upon an obligation , with a condition that chamberlain , his under-sheriff , should not meddle with executions beyond such a summ , and alleadges a breach for intermeddling with executions , contrary to the condition ; and the opinion of the whole court was , that the bond was void . pain versus nichols , trin. . iac. rotulo . an action of debt brought upon the statute of ed. . for not setting forth of tithes , and the plaiutiff declared as well for prediall tithes , for he might well bring his action , and for other tithes , as of lamb and wooll , for which no action would lie , and upon a triall the jury found for all , as well for those that would , as would not bear an action ; and after a verdict , this exception was taken , and judgement arrested . booth versus davenant , trin. . iacobi , rotulo . a bail taken in the then kings bench , and an action of debt brought upon that recognisance , which was , that if it happened the defendant in that action to be convicted , then the manucaptors granted , and every of them granted , that as well the debt as damages , and costs , which should in that action be adjudged the plaintiff , should be levied upon their lands and chattels . and in easter terme iacobi , the defendant upon a capias ad satisfaciendum , awarded against him , did not render his body , but afterwards mich. . jacobi , he did render his body , and the court accepted of it , and discharged the bail : and whether the bail should be discharged , or not , was the question ; and the court held , the bail should be discharged ; and judgement was given for the defendant . rayson versus winder , pasch . . jac. rotulo . an action of debt brought upon an obligation , for performance of an award , which was void in part , and good in part ; and the breach alleadged for that part which was good , and the award was to pay money , but no time of payment alleadged in the award , and afterwards it was demanded , and such demand was held good . king versus law , trin. . jac. rotulo . an action of debt brought upon the statute of perjury , in which the plaintiff was non-suit ; and the defendant moved to have costs upon the statute of h. . upon these words , or upon any statute for any offence or wrong personally , immediatly supposed to be done to the plaintiff or plaintiffs ; and the plaintiff after appearance , &c. be non-suited , &c. but the whole court held , that he should not recover costs upon that statute , because the statute of eliz. was made long after the statute of h. . and upon the statute of jacobi , the defendant shall not recover costs ; for if the plaintiff had recovered , he should have recovered no costs , and so no cost was given to the defendant in that action . pannell versus metcalfe , trin. . eliz. rotulo . action of debt brought against the defendant as administrator , and he pleads a recovery had against him in the city of norwich , and alleadges a special custome , that time out of minde , that they had cognisance of pleas ; and in pleading the custome , he omitted this word cur , and held naught . fetherston versus tapsall , mich. . jacobi , rotulo . the imparlance was entred , and hill. . jacobi , rotulo . the issue was entred . an action of debt was brought upon a bond , and in the imparlance the bond was alleadged to be made at newcastle , and in the issue roll it was alleadged to be made at york , and tried ; and afterwards a writ of error was brought , and the record was certified , and upon a scire facias that error was assigned ; and the court of common pleas was moved , that the imparlance roll might be amended , but the court would not grant it . gates versus smith , mich. . jac. rotulo . an action of debt brought upon an obligation to perform an award ; the defendant pleads , that the arbitrators made no award ; the plaintiff by way of replication sets forth the award , and that the arbitrators had awarded the defendant to pay such a summ , and that he should be bound with another in such a summ , and shews that the defendant did not become bound with the other ; and the defendant demurred , for because it was out of the submission , and it was not in the defendants power to perform it . jackson versus comin , trin. . jac. rotulo . an action of debt brought upon an obligation to perform an award , so that the award be signed , sealed , and delivered : and in pleading of an award , upon the defendants saying , there was no award made ; the plaintiff omitted in his plea to set forth , that the award was signed , and it was tried , and a verdict for the plaintiff ; and this was moved in arrest of judgement , and stayed by the court. clempson versus bate , trin. . iacobi , rotulo . an action of debt brought upon a recovery in a court-baron , and declares , that every court was held before the steward onely , and not before the suitors , and a declaration there for rent reserved upon a lease for years behinde , and the court held the declaration void , and that these words , according to the custome of the mannour time out of minde , would not help the declaration ; and the defendant was admitted to wage his law presently , if he would . coventry versus windall , hill. . iac. rotulo . an action of debt brought upon a writing , thereby shewing that whereas one t. before the sealing of that writing had become bound to the defendant , to stay with him , and serve him as his apprentice for the terme of eight years , and woodall covenants with the plaintiff , that he before such a day would receive and take the said apprentice for the residue of the said terme of eight years then to come , and would teach , keep , and imploy the said apprentice in his house and service in the art and mystery of surgery , which the said woodall then used , and professed , if the said i. should so long live , and bindes himself in . l. the plaintiff alleadges that the defendant did receive the said apprentice in his service at london , &c. and further sayes , that the defendant within the time , to wit , such a day and year , sent the said apprentice in a certain voyage , in a ship called the dragon , from the house of the defendant , unto the east indies , there to stay ; and that the apprentice did there arrive , and doth yet there remain , for which he brings his action . the defendant pleads , that he for the better instruction of the apprentice sent the apprentice to the indies , to use and exercise his art ; and to this the plaintiff demurrs ; and judgement for the plaintiff , that the defendant could not send the apprentice out of england , except himself went with him , although it be in his own house , and own proper service , but clearly he might send the apprentice to chester , or any other part of england . garrard & al. versus dennet , hill. . iacobi , rotulo . the defendant after a judgement entred , brought a writ of error , and assigned for error , that the christian name of the attorney for the defendant was left out in the imparlance roll , but it was in the judgment roll , and also in the roll with the clerk of the warrants was perfect , to wit , henry snag ; and therefore the imparlance was made perfect , and henry put into the imparlance roll , after assignement of error by the court. cowchman versus hawtry , hill. . iac. rotulo . action of debt brought against a bailiff of a liberty , upon a recovery in a court of record . the defendant pleads no such record . the plaintiff brings the record into the court : and there were divers variances between the record upon which the plaintiff declares , and the record certified , videlicet , in the name of the bailiff and continuances ; for in the record certified there were divers continuances which were not in the record in court , and divers other differences ; but the judgement and recovery of the debt and damages agreed , and the other variances were not material , and judgement was given for the plaintiff notwithstanding ▪ dominus rex iacobus versus castle . an action of debt brought upon an obligation taken in the kings name in the court of request , with a condition to appear before the master , &c. and the declaration is generall , that the defendant such a day and year by his obligation did acknowledge himself to be bound to the king in the said . l. to be paid , &c. and it was adjudged naught , for it did not appear to be taken in a court of record . childe versus peisley , hill. . jac. rotulo . habeas corpora returned by the sheriff , and these words omitted , videlicet , quilibet iur. per se seperatim attach . est per pleg . i. d. & r. r. exitus eor . cujuslibet x. s. r. w. & m. l. vic. and it was amended by the court. andrews versus delahay an attorney of the common pleas , hill. . jac. rotulo . a bill filed against the defendant as an attorney , upon two bills obligatory for payment of money , and one of the bills was not payable , and due at the time of exhibiting the bill : and the defendant pleads to issue , and the cause received a triall , and a verdict for the plaintiff ; and afterwards the defendant in arrest of judgement moved , that one of the bills were not payable at the time of exhibiting the bill against him , and thereupon the plaintiff remitted his damages , and had judgement for the bill that was due . harris versus cotton . as long as the vicar occupies his gleab-land in his own hands , he shall pay no tithes ; but if he demise it to another , the lessee shall pay tithes to the parson that is impropriate . if the vicar sow the land , and die , and his executor takes away the corn , and doth not set forth his tithe ; and the parson brought an action of debt upon the statute of ed. . and the court seemed to incline that it would lie . darrell versus andrew , mich. . iaeobi , rotulo . an action of debt was brought in london for rent reserved , upon a demise of lands in cawson in the parish of d. in the county of war. and of one capital messuage . the defendant pleads extinguishment of rent , because the plaintiff had entred into one house called the wooll-house , and into one buttry at the upper end of the hall of the said house , and in one house called the c. parcell of the premises before demised , upon the defendants motion , and had expelled the defendant out of the possession thereof , and the venire facias was of cawson , within the parish of dale , and exception taken , because it was infra parocham : but my lord hubbard said , that where land is laid in dale , in the parish of dale , that the venire facias may be made of dale , or within the parish , or of the parish , and both good . hall versus winkfield . an action of debt brought in london for a . l. and the plaintiff declared upon a recognisance taken at serjeants inn in fleetstreet , london , before the cheif justice of the common pleas , and afterwards inrolled in the common pleas at westminster , in middlesex . and the defendant demurred to the declaration , and the question was , whether the action should be brought in london or mid. and note the recognisance as soon as it is acknowledged is a record , and shal relate to the time of the taking to binde . serjeant hutton said , that a scire facias may issue upon a recognisance taken out of court into any county , and none is bound to sue scire facias where the recognisance is taken : but after it is inrolled in the court , an action of debt shall be brought in the county of middlesex . at the common law the execution was by levari facias , and after the year an action of debt ; it is not a recognisance consummate , untill it be inrolled in the court , yet it taketh its life by the first acknowledgement : for if you have an action of debt or trespass in a forrain shire , when you have recovered debt or trespass , your debt or trespass is now altered and made new . my lord hubbard held , that if i bring debt in norfolk , and i have judgement , and bring an action of debt upon that judgement , it must be brought in middlesex , and so in trespass . the inrolment of the recognisance is but a fortification of the recognisance . mortimer versus freeman , hill. . iacobi , rotulo . an action of debt brought , for not setting out of tithes , to which the defendant pleads , nil debet per patriam , and to prove that the plaintiff was not parson , he shewed a deprivation of the plaintiff for drunkenness by the high commissioners : and the court held , for such a common fault , after admonition , the high commissioners might deprive a minister ; but because this crime of drunkenness was committed before the general pardon , and that the sentence was given after the pardon , the sentence was void . for wooll or lamb no action lieth upon the statute , for they are not predial tithes : nor for small tithes . if an action of debt be brought upon two contracts , and both found for the plaintiff , in that case the jury may tax damages intire , but the safer and better way is to sever the damages ; for it may come to pass , that an action will not lie for one of the two , and if it will not lie , then your labour and charge is lost . an action of debt brought for . l. upon an obligation . the defendant after a general imparlance demands oyer of the bond , and pleads specially , that it was but for . l. and it was not allowed after a general imparlance . and the defendant pleaded , that it was not his deed , which was the proper plea in that case . preston versus dawson , pasch . . jacobi , rotulo . an action of debt brought upon a bond , for performance of covenants in an indenture , in which indenture was this covenant following , that the vendor should make further assurance at the cost and charges in the law of the purchasor ; and for breach it was alleadged , that a note of a fine was devised and ingrossed in parchment , and delivered to the vendee to acknowledge the fine at the assises , which he refused to do , and the plaintiffs breach was demurred upon , because he did not offer costs to the vendee , and the court held it to be idle . glyver versus lease , trin. . jac. rotulo . an action of debt brought upon a single bill . the defendant pleads , that he did infeoff the plaintiff of lands , in satisfaction of that debt , and the plaintiff demurred upon it : and upon reading the record , ruled to be a naughty plea to a single bill , otherwise it had been upon a bond , with a condition to pay money . williamson versus barnsley , trin. . jac. rotulo . an action of debt brought upon an obligation , with a condition to perform articles , that he before easter terme next following , at the request of the plaintiff , should surrender , and yeild up to the plaintiff , his letters patents of the stewardship of bromsgrove , to the intent that he might renew the said letters patents in his own name ; and it was objected at barr , that the office of a steward of a court leet , or court baron , was within the statute of e. . made against buying of offices that were for ministration : and so winch held the stewardship of a leet to be within the statute , and so was adjudged in grays case ; but the question was , whether the agreement to surrender , be within the statute or no , the words of the statute are , to have and injoy ; and winch said , it was within the statute ; and so the office of a cursitor was within that statute . exception was taken to an action of debt brought upon the statute of e. . for not setting out of tithes , because the certainty of loads of corn were not expressed , but it was held good notwithstanding . hawes versus birch , hill. . jacobi , rotulo . an action of debt brought upon a bond of . l. for the payment of . l. upon the . of april . the defendant pleads , that an estranger at the defendants request , the said . of april , made an obligation to the plaintiff in lieu of the first debt , and adjudged naught by the whole court , for one thing in action cannot be a satisfaction for another thing in action ; but this being done by a stranger , is good by no means . pasch . . jacobi . the court was of opinion , that if money be tendred , and none ready to receive it , and afterwards he to whom the money is payable , demands the money , and the other refuse to pay , and afterwards an action is brought , and a tender pleaded , the court held , that the defendant should pay damages from the time that the money was demanded . fleet versus harrison , hill. . jac. rotulo . an action of debt brought against two defendants , one of them pleads nil debet per patriam , and the other lets a judgement go by default , and he that waged his law , at the day appointed performed it ; and judgement that the plaintiff should take nothing by his writ , for a respectuatur of the judgement was entred , untill the other had done his law. williamson versus spark , mich. . jac. rotulo . upon a cire facias brought against the bail upon an attachment of priviledge . the defendant pleads a release made after the verdict , and before judgement , which was before the recognisance was forfeited : and if the recognisee may release before the damages are ascertained , or no , was the question , and it seemed he might . an action of debt brought against a baker , for a fine imposed on him in a court leet , and an exception was taken , because it was not alleadged that he sold bread against the assise of bread made to sell ; for a man may make and bake bread for his own use , under the assise limited . bacon versus pain , trin. . jac. an action of debt brought , and declare , that such a day and year the defendant was a brewer , and for one year then next following , and that the defendant the said day at k. bought of the plaintiff the fourth part of the grains that the plaintiff that year next following should make in brewing , for . l. to be paid upon request . the defendant pleads , that he ought him nothing , and after a triall , an exception was taken to the declaration , because the plaintiff did not aver that he made grains in that year . lord versus huxly . an action of debt brought on a judgement thereupon , and the defendant taken in execution upon that judgement , and afterwards the plaintiff became felo dese , by which the almoner seised of all his goods , and afterwards the almoner would have acknowledged satisfaction of the debt and damages in that judgement , and doubted that he could not . sawyer versus crompton , hill. . jac. rotulo . the plaintiff brought an action of debt for costs given before the judges of the marshalsey , newly erected , jac. by letters patents of the same king within the virge . and the plaintiff declared , that whereas at the court of the said king , for the houshold held at s. in s. within the virge of the houshold then at whitehall , such a day and year before t. b. knight marshall , &c. and f. b. &c. judges of the said court , to hear and determine all pleas personal within the virge , between persons not being of the houshold , arising , by vertue of letters patents , bearing date such a day and year , in due manner made , came , &c. and the court held a repugnancy in the count , and the whole court against the plaintiff . if it had been brought upon the ancient court , it must be between two of the houshold , and they held that cost lay : and the exception was , because the plaintiff had not shewed the grant to hold the court. if a bond be made to one , and he doth not say in the bond , that it shall be paid to the obligee , in this case the plaintiff must shew that it is to be paid to him , though not expressed in the bond. honne executor of r. hutton , and e. may , pasch . . eliz. rotulo . an action of debt brought upon an obligation , with a condition that the above bound t. g. or his heirs do or shall at any time before the purification of the blessed virgin , which shall be in the year . according to the custome of the mannour , &c. surrender into the hands of the lord of the same mannour for the time being , all those , &c. to the use of the said r. hutton , his heirs , and assignes for ever , in such wise as the said r. hutton his heirs , and assignes , shall , or lawfully may by the custome of the mannour be admitted , &c. or if after such admittance the premises shall be recovered against the said rich. his heirs or assignes by one w. k. within four years , then if he shall pay upon notice , &c. the defendant pleads , that the plaintiff ought not to have his action , because the said r. hutton after the making of the bond , and before the said feast of the purification , which was in the year . to wit , the sixth of october eliz. at b. died . the plaintiff demurs , and judgement for the plaintiff . if one be indebted to one , and he dieth intestate , and after his death administration is committed to the debtor , this is no release of the debt . if he marry the executrix of the debtee , and the executrix dieth , the husband shall be charged with the debt after her death . vaughan versus chambers , trin. . eliz. rotulo . an action of debt brought upon a bond ; the defendant pleads the statute of usury , and shews a corrupt agreement for money lent in the year . to be paid in . and afterwards in . a new bond given for part of the first summ , and it was pretended that this bond was void ; but it was adjudged , because the first bond was no corruption , the later should not be . leech attorney versus phillips executor of phillips , rotulo . an action of debt brought for soliciting a cause in the upper bench , and it was adjudged by the whole court , that an action of debt for solicitors fees would not lie , but ought to bring an action of the case , and afterwards the court held an action of the case would not lie . pasch . . jac. grove versus jourdain . an action of debt brought against an administrator , who pleads , that the intestate was indebted to him by obligation , and that he retained the money in his hands to satisfie the debt . the plaintiff replies , that the money was not due and payable to him at the time of the intestates death ; and that he took administration after the day of payment ; and if the administrator had pleased he might have took administration before the day of payment : and the court held the defendants plea good , but he shall not have the forfeiture . carrell versus paske , trin. . jac. rotulo . debt brought upon an obligation made at c. in the county of surry . the defendant pleads the priviledge of cambridge , granted to them by the queen eliz. for scholars , bachelours , masters , and their servants , upon contract made within the university , and shews the bond was made in cambridge , and that he was a servant of the scholars , to wit , bailiff of kings colledge in that university , and inhabiting within the town of cambridge , and precincts of that university , and therefore a priviledged person of the same : and upon reading the record it seemed , that the defendant being a bailiff of the colledge is not capable of the said priviledge . preist versus cee , trin. . jacobi , rotulo . an action of debt brought upon a bill , bearing date novomber , . by which bill the defendant did acknowledge himself to owe the plaintiff . l. to be paid to the plaintiff at two payments , to wit , . l. to be paid upon the . of november then next following , and other . l. to be paid upon the . day of december then next following . the defendant pleads , it was not his deed. the jury finde it specially , that the defendant the . of november , . sealed and delivered to the plaintiff one bill obligatory , shewed to the jury , bearing date the day and year above , and finde the bill , in haec verba , be it known , &c. to be paid at two payments , that is to say , . l. to be paid the . of november , which is the present of this moneth , and the other . l. on the . of december . the question was , whether the bill maintain the count for the first payment , and adjudged it did . rawdon versus turton , trin. . jac. . an action of debt brought upon a bond for payment of money such a day . the defendant pleads , that he the same day made an obligation for the payment of the said money another day , which the plaintiff accepted for the money ; and issue taken thereupon , and tried for the defendant ; and after the verdict , the plaintiff moved the court to have judgement , though the verdict passed against him , because the plea was insufficient , and that he confessed the debt , but the court would not grant it . the like mich. . jac. rotulo . and the like hill. . jac. carter versus freeman , mich. . jac. an action of debt brought upon a bond , with a condition that the defendant should appear before the king at a certain day , videlicet , die jovis post octobras martini , and upon a nul . tiel record pleaded , the defendant brought his record of appearance , lunae post xvam . martini ; and this was held by the whole court an appearance at the day in the condition by the whole court. grubham versus thornborough , hill. . jac. rotulo . an action of debt brought for rent , and for a nomine penae the rent due november , anno . and no name alleadged for the nomine penae , therefore the action would not lie for the nomine penae , but it would for rent . pasch . . eliz. elliot versus golding . an action of debt brought , and judgement given for the plaintiff , and a space was left in the roll for the costs of the judgement ; and after the year and a day , a scire facias was brought to revive the judgement , and in the scire facias the costs are put in , and so judgement by default ; and afterwards a writ of error brought , and the error was assigned , because there were no costs put into the principal roll ; and afterwards the record was removed , the count was moved , that costs might be put into the roll , but it was denied upon the first motion , and afterwards pasch . . jac. it was denied by the whole court. bond versus green administrator . an action of debt brought against him as administrator ; he pleads divers judgements , amounting to . l. and the assignement of . l. debt to the king by deed inrolled ; and he pleaded , that he retained his debt in his hands , and he might have given this in evidence , or pleaded it at the liberty of the defendant . cooper versus bacon . action of debt brought upon the statute of e. . for tithes , and the plaintiff declares that one was seised of the rectory of elveley , alias , kirkley , in kingston upon hull in his demesne as of fee ; and being so seised such a day , and such a day , at elveley , alias , kirkley , did demise to the plaintiff the said rectory , with the appurtenances , to have , and to hold , &c. for years , and that by vertue thereof he hath been , and is thereof possessed ; and that the defendant such a day , and before , and alwayes afterwards hitherto had held and occupied . acres of land , in swandland , in kingston , in a place called t. and that the tithes did belong to him . the defendant pleads , nil debet per patriam , and after a verdict it was alleadged in arrest of judgement , that the issue was mis-tried , because the venire facias was of elveley , alias , kirkley , and it should have been of swandland , where the tithes grew . chapman versus pescod , trin. . jac. rotulo . an action of debt brought upon an obligation , with a condition to give and grant to him , his heirs , and assignes . the defendant pleads , that he hath been ready to give and grant ; and adjudged naught , for he must plead that he did it , otherwise it had been , if the words had been as councel should devise . mancester versus draper , hill. . jac. rotulo . an action of debt brought upon a bond , with a condition to pay money , if c. r. shall be then living , and shall before the same . day of o. by due form and course in law perfect , levy , and knowledge a fine , and a recovery before his majesties justices of his highness court of common pleas , of and in certain houses and tenements , with the appurtenances which the said draper lately had and purchased of the said c. r. the defendant pleads that c. r. was living , and did not levy , &c. and a demurrer , and the question was , whether draper or ro. should levy the fine , and held , that draper should levy the fine . baker versus pain , hill. . jac. rotulo . an action of debt brought upon a bond to pay rent , and perform all the covenants , grants , payments , and conditions contained in a pair of indentures : and the defendant pleads the indenture and performance thereof . the plaintiff assignes the breach , that the defendant had not paid the money . the defendant replies , that the plaintiff had entred into part of the premises the day before the day of payment , and so at issue upon that ; and exception was taken , because the plaintiff had alledged no demand to be made , and the court held , that was implied by the issue , and that it was not necessary . fryer administrator of mary costiden , of the goods not administred by mary fryer executrix of the said m. c. versus jacobum gildiich executor of n. pope , hill. . jac. rotulo . the case was this , two were bound to one , and the obligee makes the wife of one of the obligers his executrix , and one of the obligers makes the same woman executrix , and she dies , and the plaintiff takes administration of the goods of the woman not administred ; and judgement was given for the defendant by the whole court. if an executor hath a lease , and purchaseth the fee-simple , the lease is gone , but it shall be assets in the executors hands , if a persnal thing be once gone , it is extinct for ever . if the husband had survived the wife , he should be charged . harcock executor of harcock , versus wrenham administrator of wrenham , hill. . jac. rotulo . a scire facias brought to revive a judgement had against the intestate , and the defendant pleads , plene administravit , which was held a naughty plea by the whole court , for he cannot pay so much as funerals , before he pay the judgement , and therefore that general fully administred is naught . the jury found that the intestate in trust conveyed one lease to fisher , and that fisher promised upon the payment of . l. to re-assure the interest to wrenham , and after his death the administrator the defendant preferred a bill in the chancery as administrator against fisher , and that the chancery ordered that fisher should pay the defendant for his interest in the lease more then the summ received , the summ of . l. which was paid the defendant accordingly ; and whether that should be assets was the question , and it was held to be assets . if an executor make gain of the testators money , that gain shall be assets : the doubt in this case was , because this was but in use ; and now whether the court shall take notice of this use , they shall being found by the jury , judgements shall be paid before statutes or recognances : and judgement was given for the plaintiff : and although in this case the barr of generally administred be naught , yet an issue taken thereupon and tried , shall not arrest the judgement for the plaintiff . pease and stilman executors , hanchet against e. meade , mich. . jac. rotulo . an action of debt brought upon an obligation , with a condition , if meade his executors , administrators , or assignes , or any of them shall pay . l. within the porch of the parish church of r. unto such person or persons as the said hanchet shall by her last will and testament in writing limit , nominate or appoint , the same to be made in manner , &c. the defendant pleads that the said hanchet by her last will and testament in writing hath not nominated , limited , or appointed , to what person or persons the said . l. should be paid . the plaintiff replies , and sues , that the testator made him executor , and died , and that he took upon him the burden of the will , and that the defendant did not pay the executor the money : and a demurrer thereupon . and if it had been to pay to her assignee , that she should name the executor should have it : such things as go by way of executorship shall be to the executor , without nomination or appointment . stannard versus baxster , trin. . jac. rotulo . an action of debt brought for damages , recovered in an assise of nuzans , for stopping the way , before special commissioners . the defendant pleads no such record , and the record was delivered into the court by the special commissioners . trin. . jac. rotulo . an action of debt brought upon a bond , with a condition , for performance of covenants of an indenture . the defendant confesses the bond , and that after the making the bond , and before the purchasing the plaintiffs writ , the indenture by the consent and assent of plaintiff and defendant was cancelled : and the said plaintiff cancelled the said indenture : and it was held a naughty plea by the said court ; for it did appear but that the bond might be forfeited . for he ought to have pleaded performance of covenants untill such a day , which day the indenture was cancelled . brook versus smith , hill. . jacobi , rotulo . two tenements in common make a lease , and reserve a rent and covenant that neither should release , and one of them releaseth his part , this is a breach , for that in debt they both should joyn , and now by the release the action is gone . lany versus aldred , and another executor , trin. . jac. vel pasch . . jac. rotulo . an action of debt brought against them as executors , one pleads that he was administrator , and that the administration was committed to him by the bishop , and pleads a recovery against him as administrator , and that he had fully administred , and had no assets to satisfie the judgement , and the other executor acknowledged the action ; and the plea was held a good plea : but it was said , the defendant might have defeated the action which was brought against him as executor , and therefore they would infer , that it was no good plea , but it was a good plea ; and it was held by the chief justice , that if an executor of his own wrong be sued with a rightfull executor in one writ , the executor of his own wrong shall not by his plea prejudice the rightfull executor . marsh versus curtis , hill. . eliz. rotulo . an action of debt brought upon an obligation for performance of covenants in a lease , upon which rent is reserved , and the condition was that if the rent should be behinde , then lawfull to re-enter , and the rent was behinde and before re-entry the rent was accepted . the question was , whether he may enter for the condition broken after the acceptance of the rent . sir edward cook was of opinion , that by the acceptance of the rent he did confirm the estate , but if a bond be entred into to perform covenants in a lease , whereupon rent is reserved , and a fine to be paid , with a condition of re-entry for not paying the rent or fine , and if the rent be received , and the fine not paid , the acceptance of the rent doth not take away the condition for not paying the fine . r. milton versus r. pearsey , trin. . iacobi , rotulo . an action of debt brought , and in the venire facias the defendants name was mistaken , for the venire was to impannell a jury between r. milton plaintiff , and i. pearsey defendant in a plea of debt , and the court held the venire as none , and a new triall awarded , and the like judgement was given , trin. . iacobi , rotulo . in the upper bench. brownsworth versus trench , trin. . iacobi , rotulo . an action of debt brought upon an escape against a bailiff of a liberty , and after a triall exception was taken to the declaration , because it was not alleadged therein , that the sheriff made a warrant to the bailiff upon the execution , but it was onely alleadged that at a. aforesaid , by vertue of the warrant aforesaid , he took the prisoner , and saith not , within his liberty aforesaid , and the exception was held void . trin. . iacobi . an action of debt brought by executors , and the defendant pleads that the plaintiffs were not executors , and tried , and found for the defendant ; and the defendant upon the statute for costs desired costs , because the jury found against the plaintiff that he was not executor ; and if a verdict passe against one that is not an executor , he shall pay costs , but costs were denied by the whole court , for the jury might finde an untruth . balder versus blackborn , trin. . iacobi , rotulo . an action of debt brought for rent reserved upon a lease for years , the case : this land was devised to a woman in this manner , that she should have the profits of the land untill the daughter of the devisor should be eighteen years old ; and the woman made the lease in question reserving rent , and afterwards married , and then died ; and if the husband after her death should have the land untill the daughter of the devisor came to eighteen years old , was the question , and adjudged he should hold the land for the devise of the profits is the devise of the land , and is not like a lease made by a guardian in socage , which ends by the de●… of the guardian ; the declaration was for one mesuage demised the fourth of may . jac. for one year , and so from year to year , as long as both parties should agree , paying twenty four pounds by the year , and nil debet per patriam , was pleaded ; and the jury found it specially that one i. w. was seised of the tenement , and held it in socage , and made it his last will in writing , and by that did devise to a. his daughter the said tenement , and her heirs for ever , at the full age of eighteen years ; the words of the will were : item , i will that my wife and executrix shall have the education of my daughter , with the portion of money and profits of my land to her own use without account , untill my daughters age aforesaid ; provided she shall pay the out-rents , and keep her daughter at school , and by that will made his wife executrix , and the said w. died , and his wife survived , and took upon her the executorship and married with one p. the woman performed the condition , and afterwards died , and judgement was given for the plaintiff , that it was a terme , and that the husband should have it . an action of debt was brought against an executor , and the case was thus , administration was committed to one during the minority of the executor who wasted the goods of the testator , and after the executor attained the age of seventeen years an action of debt was brought against the executor , and the opinion of the court was prayed whether he might plead generally ne unques executor , or excuse himself by pleading the special matter , and the court doubled , but most safe to plead the special matter . an action of debt was brought for rent reserved by indenture payable at two feasts , or within twenty daies then next following , and the plaintiff declared upon a lease for the rent , and because ten pound at the feast of the anunciation , . jacobi , was behind and unpaid , the action was brought , the defendant pleads , non demisit , and a verdict for the plaintiff , and after a triall exception was taken to the declaration because it was not alleadged that the rent was arrere at that feast and twenty daies after , but it was not allowed after a verdict , because he should have taken advantage thereof before . ratliff versus executors , pasch . . jacobi . an action of debt brought upon an obligation to perform covenants in an indenture . the defendant pleads performance of the covenants , the plaintiff alleadges a breach upon this covenant that the lessee should injoy the land without any lawfull interruption or disturbance of the lessor or his executors , and shewes that the executors entred upon him in the land , and outed him , and shews not any interruption for any just cause , and adjudged good in the upper bench. whitton versus bye , trin. . jacobi , it was adjudged in the upper bench in an action of debt brought by a lessor against a lessee for years for rent reserved during the tearme being behind and unpaid , that a release pleaded to be made by the lessor to the lessee six years before the rent was arrere , of all demands , was a good barr : one cannot reserve a rent to a stranger it must be reserved according to the privity . wainford administrator kirby versus warner trin. . jacobi rotulo . an action of debt brought upon a bond , to which the defendant pleads that the intestate was indebted to him in such a sum , and that he retained , &c. in his hands to satisfie himself of the debt due to him . and that he had not assets over to satisfie the plaintiff , to which plea the plaintiff demurrs , because he did not plead generally fully administred , but an exception was taken , because he shewed not that the condition of the bond was for payment of money . stone versus goddard , trin. . jacobi , rotulo . an action of debt brought upon divers emissets of divers wares , videlicet , unum ahenum for five shillings , unum scabum for six shillings , and so divers other words which the court could not understand what they signified , in regard no anglice was put to them : and the defendant pleaded nil debet per patriam , and the jury gave a verdict for the plaintiff , and damages given for the whole debt , and moved in arrest of judgement , and judgement that the plaintiff should have no judgement for the insufficiency of his declaration . weeks versus wright , unum clericorum r. b. the plaintiff exhibited a bill against the defendant for money due upon an obligation , and issue was joyned , and the cause tried , and a verdict for the plaintiff ; and after triall the defendant moved in arrest of judgement , that the bill was not filed , & that it was not helped by the statute of jeofayles , nor within that statute , for it is an original , but afterwards the court granted that a new bill should be filed , so that the matter might be put to arbitrement , and if the arbitrators could not determine the matter the court would . and note , the court seemed to be of an opinion that the want of a bill is not helped by the statute . witchoct & linesey versus nine , trin. . jacobi , rotulo . an action of debt brought upon an obligation , to perform the covenants contained in an indenture , the covenant was for quiet injoying without let , trouble , interruption , &c. the plaintiff assigned his breach that he forbad his tenant to pay his rent ; this was held by the court to be no breach , unlesse there were some other act ; and the defendant pleaded , that after the time the plaintiff said , that he forbad the tenant to pay the rent , the tenant did pay the rent to the plaintiff . level versus hall , pasch . . jac. rotulo . an action of debt brought upon an obligation , to which the defendant pleads , that the plaintiff brought another action upon the same bond in london , to which the defendant there had pleaded non est factum , and it was there found that it was not the defendants deed , and in london the entry is upon such a verdict , that the defendant shall recover damages against the plaintiff , and that the defendant should be without day , &c. but no judgement , that the plaintiffe should take nothing by his writ , and therefore no judgement to be barred in another suit , but barr the plaintiffe , for it is onely a triall , and no judgement , and the plea was adjudged naught by the whole court. mich . . jac. rotulo . one made another his executor , and that executor died , and made another his executor , and the last executor refused to own his first will , as to his goods , and this matter was pleaded in his action of debt , brought by an administrator of the goods of the first executor , pretending the administration was void , although the executor refused to be executor , as to the goods , and the court held the administration void , for the executor cannot be executor , for part at his own election , and not for part , and the defendant pleaded that the executor should not bring his action as administrator , but as executor . wherwood versus shaw , mich. . and eliz. shaw executor of a. brought an action of debt against wherwood administrator of feild , upon a bill made by field to a. by which feild doth acknowledge himself to have received of one p. forty l. to be equally divided between the said a. and b. to their use , and upon a judgement given in the common pleas , wherwood brings a writ of error and the judgement was affirmed , the matters moved were , i. because the forty pounds was given to be equally divided between a , and b. therefore they were tenants in common of it , and shaw should have joyned b. in the action with himself , as tenants in common are to joyn in personall action , but over-ruled , that in this case there were severall debts , to wit twenty pound to one , and twenty pounds to the other , as in case of ten pounds rent reserved upon a lease , to wit five pounds at the feast of michaelmas , and five pounds at the feast of the annunciation , yet it is but one rent , and this case is not to be resembled to the cases of interest , as in the eliz. where land or lease be giuen to two equally to be divided , for there they are tenants in common . the second thing moved was , whether debt or account did ly , and adjudged that although no contract was between the parties , yet when either money or goods are delivered upon consideration to the use of a. a. may have an action of debt , and of that opinion was mountain , h. . in core and woods case , and also there is a president of such actions of debt in the book of entries . broad versus owen , mich. and eliz. the plaintiffe brought an action of debt upon the statute of eliz , for perjury against the defendant ; the case was thus , one low was plaintiffe against brode in the high court of chancery , and upon bill and answer such matter appeared to the lord keeper , that he ordered that one labourer should become party to the bill against brode , and afterwards one commission issued out of chancery between labourer and brode , to examine witnesses , by which commission owen the now defendant was examined on the behalf of labourer , and did depose directly for labourer against brode , by reason whereof one order and decree was made in the chancery against brode , and for that cause brode brought his action of debt against owen , upon the statute of perjury , eliz. for one party grieved by the oath and deposition of another , and owen demurrs in law ; and by the opinion of gaudy and yelverton justices , the action would not lie , for the words of the statute are where a man is grieved : and damnified by a deposition in one suit between party and party , and in this case it appeared that labourer was no party to the suit , but came in by an order , and no bill depending either against him , or brought by him , and so out of the statute , for it is penall and to be taken strictly : and quaere if he in the reversion joyn in aid , and is grieved and prejudiced by an oath and deposition may maintain an action of debt upon this statute , for he may undoubtedly by the common law have an attaint . green versus gascoin , pasch . . jacobi . an action of debt brought upon an obligation for an hundred pounds , to which the defendant pleads in barr to the action an outlary against the plaintiff , and shews it incertain , the plaintiff replies nul . tiel , record ; and the defendant had day till the next term to bring in the record , and in the mean time the plaintiff reverses the outlary , by which it is become in law no record , according to the h. . . and yelverton moved the court for the defendant , that although in law there was a failer of the record , yet the defendant ought not to be condemned , but shall answer over according to the . of eliz. dier fol. . where it is adjudged that failer of the record is not peremptory , and so adjudged , for it was no default in the ▪ defendant , his plea being true at such time as it was pleaded with mark . weaver versus clifford . action of debt brought for an escape , the case was thus upon the nichils returned against a conusor in chancery a capias was awarded out of the chancery against him , by vertue of which he was taken by the sheriff , and suffered to escape , and adjudged that no action would lie against the sheriff in this case , for a capias lies not upon a recognisance , but onely a scire facias , and therefore when a man is taken upon the capias he is not a prisoner by the course of law , for the law hath not ordained any means to arrest him , and is therefore in custody without warrant , and no escape , and it is an illegal commitment , and so is the ●ratu●e of westminster , the . to b● const●ued which g●… action against the the gaolor , to wit , where the party is in execution by course of law , and although the chancery doth award a capias upon a recognisance , and that there are divers pre●●lents of it ; et it is b●t the use of that court onely , which may not step the ●udges mouthes , but that they ought to judge according to law , and this was the opinion of popham , yelverton . gaudy , but fennor doubted , for he thought the awarding of the capias one●y erroneous , and not void ; and serjeant tanfield and the attorney general shewed a precise judgement in the case , eliz. in the exchequer cl●ment pastons case , against whom an action of debt was brought for suffering one to escape who was taken by vertue of a capias upon a recognisance , and the three judges held strongly their opinion . pvdsey versus newsam , mich. . jacobi . an action of debt brought upon an obligation for five hundred pounds , with a condition , that if the defendant before mich. do make knowledge , and suffer , &c. all and every such reasonable act and things whatsoever they be for the good and lawfull assuring and sure making of the mannour of d. to j. s. and his heirs , that then , &c. the defendant pleads that before mich. the plaintiff had not reasonably required the defendant to make any reasonable act or acts which should be for the good and lawfull assuring of the mannor of d. the plaintiff replies , that such a day before mich. he requested the defendant that he would convey and assure the mannour of d. to j. s. according to the tenour of the condition , and upon this they were at issue , and found for the plaintiff , and it was moved in arrest of judgement , that no sufficient breach was assigned , for the plaintiff ought to have required one assurance in certain which he would have had made , but the exception was over-ruled , and adjudged that the issue was well joyned , and the condition broken ; for by the condition the defendant is to make all and every act whatsoever for the assurance of the mannour of d. in so much that if the plaintiff should request one fine , feoffment , or recovery , or bargain and sale , the defendant ought to make all , but they held he was not bound to make an obligation or recognisance for the injoying the mannour , for that is but collateral security , & is no assurance . and when the plaintiff requires the defendant to convey the mannour generally , the defend . at his peril ought to do it by any kinde of assurance ; and if upon such request the defendant should make a feoffment of the mannour , yet if the plaintiff afterwards request one fine , the defendant ought to acknowledge one fine also , and so upon severall requests he ought to make severall assurances , and so in making the request general , he had well pursued the condition , and the defendant ought at his peril●…ake every assurance by the opinion of the whole court. ellis versus warnes , trin. . jacobi . an action of debt brought upon a bond for a hundred and twenty pounds , and the case upon the pleading was , that warnes was indebted to one ader a hundred pounds upon an usurious contract , and that ader was indebted to ellis in a hundred pounds , for which warnes and ader were obliged to the plaintiff , and debt being brought upon that obligation , warnes pleads the usury between him and ader to avoid the bond ; ellis the plaintiff replies , that ader before the making the bond was indebted to him in a hundred pounds , a just and true debt , for payment whereof vvarnes and ader were bound to him in the bond in suit , and that he was not in any wise knowing of the usury between warner and ader , and warnes demurrs to this plea ; and adjudged by gaudy , yelverton , and w. for the plaintiff , for it is not usury in the plaintiff , but onely between warnes and ader , to which the plaintiff being not privy shall not be prejudiced , for although the statute of usury is to be taken most strongly for the suppressing of usury , yet it must be between such parties as use corruption , and not to punish the innocent , as the plaintiff , but if no debt had been due to the plaintiff before , then it had been clearly usury , for there had been no lawfull cause to make the bond to him , but onely to countenance the corruption between vvarnes and ader ; and yelverton said , that if the defendants plea be good , then every man may be defrauded of his just debt ; for if the barr shall be good by corruption between the debtor and surety , to which the creditor is a meer stranger , a man may loose his debt , which is mischievous : but popham and fennor doubted of the plaintiffs replication , that he ought to have took a traverse upon the defendants barr , which ought not to be ; for how should he traverse a thing which could be within his knowledge , and to which he was no party . hargrave versus rogers , mich. . jacobi . action of debt brought , and bail given , that a. upon eight dayes warning shall appear to an action to be brought by b. for the same debt ; and if a. shall be condemned in the suit , and not pay it , then the bail would answer b. the condemnation ; and b. brought his action against a. in which a. was condemned , and did not pay , by reason whereof b. brought an action of debt against the bail upon the recognisance , and set forth the suit against a. and the condemnation , and that he had not satisfied it , but shewed not that it had eight dayes warning to appear to the action ; and fennor and yelverton held , that he need not shew it , for the condition of the recognisance depends upon two clauses , one the appearance at . dayes warning , the other is the satisfaction by the bail , if p. should not pay the condemnation comprehended in these words ( and ) and in this case the action was brought upon the second clause , to wit , the default of p. because he had not answered the condemnation , and therefore needlesse to meddle with that part of the condition . but if the action had been brought , if the first clause then b. ought to have shewed in certain the warning to have been given by . dayes ; but popham , gandy , and w. were of a contrary opinion , and that the plaintiff of necessity ought to shew the warning to have been given . dayes , because that part of the condition is not to be performed between parties , but an estranger , for a. is an estranger , and the bail is bound as well to answer such condemnation in such action as shall be brought upon the eight dayes warning given , for that is the ground of all ; and it is no reason that a. by his voluntary appearance without eight dayes warning should prejudice his bail ; but otherwise it had been if the condition had been between a. and b. for then if a. would appear without such warning , it is his folly , and no injury is done to one that is willing : and according to this opinion the plaintiff discontinued his suit , and the defendants were ordered to put in new bail with mark . sir rich. campion vers - hill , pasch . . jac. an action of debt brought upon the stat. of e. . for not setting forth of tithes , & the plaintiff shews that the rector of m. had . parts of the tithes in . parts to be divided , & that the vicar of the same place had the third part of the tithes , and layeth this by prescription , as to the manner of the taking the tithes , & shews further , how the parson & vicar by several leases had demised the tithes to him , & so he being proprietor of the tithes , the defend . sowed . acres within the parish , to wit , wheat , rie , &c. & carried it away without setting forth the tithe to his damage , &c. and upon a nil debet per patriam , pleaded , it was found for the plaintiff , and moved in arrest of judgement , that the plaintiff had in that action comprised severall actions upon the statute , and that it appeared by his own shewing , for the plaintiff claimed not the tithes under one title , but under the severall tithes of parson and vicar ; and fennor justice held they could not joyn , and no more could the plaintiff who claimed severally under them , and it seemed to him that the parson could not have this action against severall tenants , for not setting forth their severall tithes , because he could not comprehend two actions in one ; but the whole court besides held the contrary ; for although the parson and vicar could not joyn in this case , because they claim their tithes severally by divided rights , yet when both their tithes are conjoyned in one person ; as it is in the plaintiffe , then the the interest of their title is conjoyned also in one , and it suffices generally to shew the plaintiffe is a farmer or proprietor of the tithes , without saying of what title , for it is but a personall action , grounded meerly upon a contempt against the statute for not setting forth tithes , and also tithes are not demanded by this action , although the title may come in debate , yet it was agreed by all the judges , that the plaintiffe should recover his tithes in dammages , and shall not demand them again by any suit , after a recovery in this action , which mark. berket versus manning , pasch . jacobi . action of debt brought against the defendant , as administrator of j. s. the defendant pleads fully administred , the plaintiffe replies that himself had assets and it should have been that the defendant had assets , and this was moved in arrest of judgement , but amended by the court , being the clerks misprision , onely as where it is entred , & predict . defend . similiter , and it should have been , & predict . quer . similiter , and this hath been often amended by the court. paler versus hardman pasch . jacobi , hardman and his wife executrix , j. h. brought an action of debt in the common pleas against paler , and as that they should restore a tun of iron , to the value of twelve l. and declare upon a bill for the delivery of the said tun of iron within such a time , and that the defendant had not delivered it to the plaintiffes dammage , of , &c. and upon non est fact . pleaded it was found for the plaintiffe , and judgement was given that the plaintiffe should recover the tun of iron , or the value of the same , and if he should render the tun then by the oath , &c. should inquire what the tun of iron was worth , and before any return of the writ to inquire of the dammages , the plaintiffe in the common pleas takes out a capias upon the judgement , and on exigent upon that , and the defendant brings a writ of error , and it was adjudged erroneous , for two causes , first because the judgement was in the disjunctive , that the plaintiffe should recover the tun of iron , and if not the value thereof , so in detinue , as it appears by the judgement in this case , that the plaintiffe may choose whether he will have the iron or the value thereof , which he cannot do , for if the iron be to be delivered he shall recover that onely , but if it be not to be delivered , then the value , and not as before . secondly , for that the judgement is not perfect untill the writ to inquire be returned , with issues to the sheriffe to distrain the defendant to render the iron , and also to inquire of the value , and before the return thereof , nothing in certain appears . one which to ground any writ of execution for the judgement comprehends no certainty , but is to be made certain by the return of the writ , to inquire with the whole court granted . carpenter versus collins , mich. jacobi , an action of debt brought by the plaintiffe for rent arere , and declares upon a lease made to the defendant at will to be held from mich. as long as both parties should agree , yeelding and paying three pounds yearly , and shews that collins entred and occupied from the feast , &c. unto the feast of mich. and upon nil debet plenius , the jury foundthat j. norrington had issue a son and a daughter , and devises , that his son shall have his land , at the age of twenty four years , and gives forty pounds to his daughter , to be paid her at the age of two and twenty years , an further wills that the plaintiffe should be his executor , and should repair to his houses , and have the oversight and doing of all his lands and moveable goods , untill the severall ages aforesaid , and after dies and carpenter the executor makes the lease before mentioned , and the jury further find that the son died , but find not at what age he was at his death , but that the daughter at the sons death was nineteen and no more , and find the lease made by the plaintiffe , and that the lessee by force thereof entred and continued possession from michaelmas for one year and more , and find that within that year , the daughter entred , and that the defendant atturned to the daughter , and refused to continue tenant to the plaintiffe , and by fennor , yelverton and w. judgement was given against the plaintiffe , for the plaintif took no interest in the land by the will , for the oversight and doing of his lands shall be intended but in right of the heire , and to his use , because the testator though not his son of discretion and government , untill the age of twenty four years , and in the mean time appointed his executor to oversee and order the land to the profits of the he●●e that wanted discretion , h. . d. . where it is declared that j. s. shall have as well the governing of , &c. as the disposing , setting , letting , and ordering of his lands , and by the court held that j. s. had them onely to husband , for the profit of his children and no otherwise , but he was of opinion that the plaintif had an estate in the land upon a limitation determinable at the sons age of four and twenty years , and it appears not at what age he died , being not found by the verdict , therefore it is incertain , and the entry of the daughter lawfull , for the limitation looks but to the age of the sonne , and not to the age of the daughter , for the age of the daughter shall be intended to be set down for the receit of her legacy of forty pounds , and for no other purpose , and the defendant within the time in which the rent demanded , is supposed to be due , had not determined his will , as appears by the verdict : but fennor and w. said that by the verdict that the defendant entred by force of the lease , and occupied the land at the time comprised in the declaration and more , and that the tenant at will cannot determine his will , within a little time before the year end , for that would prove very mischeivous to the lessor , that his tenant at will should determine his will within the year , and refuse to occupy the land , twenty dayes before the year end , and in h. . crooks reports , it appears that a lessee at will cannot determine his will within the year to the prejudice of the lessor , but that he shall answer the whole rent to the lessor , but note it appeared , that the lessee at will was expulsed by the plaintif that was lessor , and no other thing , although done by his agreement can determine the lease against the lessor , for it is covin if the lessee be not privy , and acquainted with it , which was granted by the whole court , and all of them agreed in the title against the plaintif , but as the reporter affirmed , popham was absent , and hearing the case , was of opinion that the plaintif had an interest by the words of the will. jeffry versus guy mich. . jacobi , an action of debt brought upon an obligation , with condition , that if jeffry the defendant perform all covenants in such an indenture , that then , &c. and one covenant was , that he should permit guy the plaintiffe from time to time to come and see if the house leased by guy . and k. his wife were in repair , the case was thus , j. bill . and k. his wife were tenants in tail of a house , and had issue , j. b. dies , k. marries guy the plaintiffe , and they two make a lease by indenture to jeffry , for twenty years , yeelding and paying to them and their heirs three pounds rent by the year , with the covenant as aforesaid . jeffry pleads in barr the former intail , and the death of r. and that vv. the issue in tail such a day entred , before which entry the condition was not broken , guy replies that william came with him upon the land , to see if reparations , &c. and traverses the entry of william in manner and form , prout , &c. and issue joyned upon the traverse , and found for the plaintiffe , and judgement given in the common pleas , upon which judgement jeffry brought writ of error in the kings bench , and judgement affirmed there , but it was assigned for error , the jury had not assigned any breach of covenant in jeffry , and so had showed no cause of action , but the court held he need not in this case , for by the speciall issue tendred by jeffry , the plaintiffe was inforced , one speciall replication to that point tendred , and the plaintiffe could not proceed error , and it is not like the case of an arbitrement , wherein debt upon an obligation to perform the award , the defendant pleads nullum fecer arbitrium , then the defen●… in his replication ought to set forth the award , and assign his breach , because the defendants plea is generall , but if in such case the defendant should plead a release of all demands : after the arbi-arbitrement , by which he offers a special point in issue , there it suffices , if the plaintiff answers to the release , or other special matter alleadged by the defendant , without assigning any breach ; so in this case the special plea of the defendant had disabled the plaintiff , that he could not assign any breach of covenants , but of necessity ought to answer to the special matter alleadged . rastell versus draper , mich. . jacobi . an action of debt brought for nine and thirty pounds , the plaintiff declares that the first of may , primo iacobi , sold to the defendant twenty northern clothes for sixty pounds flemish money , to be paid upon request , which sixty pounds flemish money amount to nine and thirty pounds english money ; and that the defendant , though often requested , had not paid the nine and thirty pounds , to his damages of , &c. the defendant pleads nil debet per patriam , and found for the plaintiff , and moved in arrest of judgement , that the plaintiff should have demanded the summ according to the contract , which was for sixty pounds flemish , and to have shewed , that it amounts to nine and thirty pounds english , but the whole court against it ; for the debt ought to be demanded by a name known , and the judges are not skilled in flemish money : and also when the plaintiff hath his judgement , he could not have his execution by that name ; for the sheriff cannot tell how to levy the money in flemish ; and also it is made good by the verdict , for the jury have found the debt demanded , to wit , nine and thirty pounds . but if the contract had been for so many ounces of flemish money , or a barr of silver and gold , now it cannot be demanded by the name of twenty pounds , or such a summ , which is not coin , nor used in trade or merchandise , but in such case must have a writ of detinue , and in that recover the thing , or the value ; and so in the book of entries , fol. . is the president , where debt was brought upon two severall obligations , and demands eight and twenty pounds , and declares severally , that by one obligation he owed eight and twenty pounds of flemish money , and h. . . & e. . . but note in that case , the plaintiff if he would might have declared in the detinet , and it had been good . rolles versus osborn , mich. . jac. the plaintiff brought an action of debt against the defendant upon a bond of a thousand pounds , and serjeant nichols moved the court for the defendant , and shewed that the plaintiff and defendant were obliged each to other in a thousand pounds a peice , that they should intermarry before such a day , and both their obligations were forfeited , and each of them sued the other ; and the defendant prayed that common bail might be accepted of her , and she would accept of common bail of the plaintiff ; and the court held it reasonable , but said , if they would marry , both their bonds might be saved . barneshurst versus yelverton , hill. . jacobi . the plaintiff as administrator of i. s. brought an action of debt against the defendant , upon a bond , and obtained a judgement , and afterwards the administration is revoked , yet notwithstanding the plaintiff proceeded , and took the defendant in execution ; and upon a motion in the court , the court held the execution void , and that the defendant ought to be discharged , because it issued out erroneously ; for the letters of administration being revoked , the power of the plaintiff is gone , and determined , for he prosecuted the suit in anothers right , and is but a minister of the ordinary ; and then when the ground of the suit is over-thrown , to wit , his commission , he hath no authority to proceed further , and the execution issued without warrant . and the like law upon a judgement had upon an administrator , the second administrator shall not have execution by it , for he hath no privity to the record ; which mark . andrews versus robbins , trin. . jacobi . the plaintiff brought debt upon an obligation made to him as sheriff , with a condition , that the defendant should appear ; and crook said that the defendant had pleaded his appearance , and had omitted to say , as it appears by the court , and it was held a grosse fault , but the record being perused , it appeared to be otherwise ; for the case was , that the defendant was obliged to make an obligation to appear in the kings bench at a day prefixed in the writ and that the defendant pleaded there was no day prefixed in the writ for his appearance ; and crook moved that it was no plea , for the defendant was estopped , to which the court agreed , that he was estopped , and williams said , that if a man be bound to pay a hundred pounds , that i. s. owes to him , he cannot plead that i. s. doth not owe him a hundred pounds ; and tanfield said , if it were to pay all sums that i. s. owed him , he isconcluded : & so it is held , eliz. dyer . and the court commanded judgement to be entred for the plaintif , if no cause shewed tothe contrary such a day . jackson versus kirton , trin. . jacobi . in common pleas an action of debt brought upon an obligation , the condition was , that if a. would render himself to an arrest in such a place , &c. the defendant pleads , that by priviledge of parliament , those of the parliament , and their necessary servants ought not to be arrested by the space of forty dayes before the parliament , nor sitting the parliament , nor forty dayes after ; and sets forth that a. was a servant to such a man of the parliament at such a time , so that he could not render himself to be arrested ; to which the plaintiff demurrs ; and the opinion of the court was for the plaintiff ; for a. might render himself , and let it be at their perill , if they will arrest him . markham versus jerux , hill. . jac. action of debt brought upon a bond , with a condition to stand to the award , arbitrement , &c. of master porley of grays inn , about the title of one copy-hold tenement , m. p. awarded , &c. that the defendant should pay to the plaintiff six pounds upon the may , jac. at such a place , to wit , in the church porch of c. and further awards that the plaintiff by his deed should release to the defendant his whole right , &c. upon the said 〈◊〉 day of may at the same place upon the payment of the money : and in another clause of the award he awarded that the plaintiff should make further assurance to the defendant for the extinguishing of his title , as should be advised , &c. and yelverton moved that this arbitrement was void , and is in a manner no award , for it is repugnant and insensible ; for although it be certain at what day the defendant should pay the six pounds , yet it doth not appear when , nor upon what day the plaintiff should release to the defendant , for there is no such first day of may in the whole award , and it is not bound or tied to any year of the king , so that it is altogether incertain ; and although it may be collected that the arbitrator did intend the . day of may , because it is appointed to be made upon the payment of the six pounds , which was the . may , yet it is not expressed but onely by way of inference and implication : and it was objected , that admit the award to be void in that part , yet it is good in the residue , which is to be performed by the plaintiff , to wit , the making of better assurance ; to which yelverton answered , that all the clauses in one award are material , and the clause of further assurance depends upon the repugnant clause of the release to be made ; for the award appoints that the release is to be made upon the said first day of may , whereas no such day in the whole award , shall be the first assurance ; and the assurances which were to be made by the following clause were in the intention of the arbitrator , to be for the strengthning of the first release , which was granted ; and the court said , there was much difference between wills and deeds , and between arbitrements ; for deeds , &c. shall be construed according to the intent of the parties , and upon the words to be collected out of the deeds ; but an award , is of the nature of a judgement , and sentence in which ought to be plainnesse , and no collection of the intent and meaning of the arbitrators ; for how it ought to be his judgement , and not the judgement of another upon the words of the arbitrator ; and tanfeild said , it had been adjudged , that where the arbitrator did award , that one of the parties should become bound to the other in the summ of , and no summ in certain , but a space left for the summ , that it was void : and if an arbitrement be void in one clause , although it be good in all clauses , yet it is in law no award ; for a judgement ought to be plain , certain , and perfect in all things : but if the arbitrators award , that one of the parties , and j. s. an estranger shall do such a thing , that is good ; as to the party who is within the submission , and void onely to i. s. the estranger , e. . atkins versus gardiner , pasch . . jac. the plaintiff being president of the colledge of phisicians in london , brought an action of debt against the defendant , for practising phisick upon the charter made to them by h. . that none should practise phisick in london , nor within seven miles thereof , except such as were authorised by them , and gives them authority to impose fines upon such as shall practise phisick , which charter was confirmed by act of parliament in h. . and he obtained judgement upon the statute , to recover a summ for himself , and the colledge , and before execution the president died , and whether the successor should have execution , and e. . was cited , and divers other books to that purpose . stamford versus cooks , pasch . . jacobi . an action of debt brought upon an obligation , with a condition , that the defendant should seal such assurances as should be devised by the plaintiff , and that the assurance should be of copy-hold land ; and the plaintiff devised that the defendant should seal a letter of attorney made to one to surrender the copy-hold for him , and also seal one bond for the injoying thereof ; and the plaintiff offered these writings to the defendant to seal , and he refused , and upon such refusall the plaintiff brought his action , and a verdict was given for the plaintiff ; and serjeant yelverton moved in arrest of judgement , that the plaintiff ought not to have judgement ; for he said , that the defendant was not bound and compellable to seal that obligation , because it was not in law any assurance , but a collateral thing ; and the whole court agreed that ; and therefore being the action was brought for refusing to seal the obligation and letter of attorney , and the judgement according it ought to be arrested : but cock said , that judgement ought not to be arrested , for the premises of the delaration , it appeared that he refused to seal the letter of attorney , and thereupon concluded , that it should not be arrested : and fennor said , that the letter of attorney was not any such assurance , as the law required in such case ; for when he had made the surrender , it should be accounted the surrender of him that made the assurance , and he said , he should make a present assurance of it : but tanfeild was of another opinion , and said , that when the surrender was made , it shall be said to be the immediate surrender of him that made the letter of atturney , and such an assurance as the law required , and yelverton , justice , said , the letter of atturney was lame for this cause , the letter of atturney was made to one , for the surrendring of such a copy-hold , and did not say in the letter of atturney for him , and in his name , for otherwise , the copy-hold might be the copy-hold of him that surrendred by vertue of the letter of atturney , and then he should surrender his own copy-hold ; but tanfeild was of another opinion , because he said in the letter of atturney , that he did constitute and appoint , and in his stead and place put such a one , which words in his stead and place , are as full , as if he should have said , in his name . hollingworth versus huntley , pasch . jacobi , an action of debt brought upon an obligation , the condition , amongst many other things , contained that the husband and wife being lessees for life of certain lands , that if the said husband and wife should levy a fine to an estranger , at the costs and charges of an estranger , and also that they should levy a fine of other lands , that they also held for their lives to an estranger , and at their charge , then , &c. the obliger sayes that the husband and wife did offer to levy the fine , if the estranger , to whom the fine was to be delivered would bear their charges , the obligee demurres , and it was adjudged for the plaintiffe , because the levying the second fine had not any reference to the other , because they are two distinct sentences , and these words , and also make them so . man versus somerton , pasch . . jacobi , the plaintiffe being parson of henley , brought an action of debt for six hundred pounds upon the statute of 〈◊〉 . . for not setting forth tithe of wood , and the plaintiffe shews that the defendant had cut down two hundred loads of wood , to the value of two hundred pounds , and saith , the tenth part of that did amount to two hundred pounds , and so he brought his action for six hundred pounds upon the statute , and the plaintiffe was nonsuit , for one fault in his declaration , for whereas he names the price of the wood to be two hundred pounds , it was mistaken , for it should have been two thousand pounds , for he demanded more for the tenth part , then the principall is , by his own shewing , and tanfeild justice held that beech by the common law is not timber , and so it was adjudged in cary and pagets case , and it was held , that tithes shall not be paid for beech above the growth of twenty years in a common countrey for wood , as in buckingham-shire , for there it is reputed timber , but in a plentifull countrey , of wood , it is otherwise , for there it is not timber and tithes shall be paid for such wood , silva cedua , for which tithes shall be paid , is under the growth of twenty years , but tithes shall be paid for such wood which is not timber , which is above the growth of twenty years . percher versus vaughan trin. . jac. an action of debt brought upon an obligation for six pounds thirteen shillings eight pence . the defendant demands oyer of the obligation , and imparles , and after an imparlance the defendant comes and sayes there was variance between the plaintiffes writ , and the obligation , for it appeared by the obligation that the defendant was obliged in viginti nobilis , and so his action ought to be brought according to the obligation , and demands judgement , if the plaintiffe ought to have his action , the plaintiffe demurres , and it was argued by the plaintiffes counsell , first , that it was no variance , for it was said that twenty nobles , and six pounds thirteen shillings eight pence , were all one in substance , if a man be bound to pay a hundred nobles , and brings his action for fifty marks , it is not variance , h. . . and e. . fitzherbert , title varians , . agrees to that , but if a man be obliged to pay certain money in flemish money , he ought to shew the performance of that strictly , ed. . . and the plaintiffes counsell said that it was variance , it could not be shewed after an imparlance in marks case , co. . . and said the conclusion of the defendants plea to demand judgement of the plaintiffe , ought to have his action , was not good , for this plea was not in barr of the action , but in abatement of the writ , and yelverton , justice , agreed to that , and he said when the obligation was in viginti nobilis , it shall be intended twenty nobles , and good . tanfeild said , that when there is no good and apt latine words , for a thing , & no unapt latine word is put in the bond for that thing , the bond is void , as when a man is bound in quinque libris , it it was adjudged in mich. term , jac. that the obligation was void , because there was a fit latine word , and that was quinque , and so it was adjudged in the lord danvers case , where the indictment for one blow super capud , and it was held void , because it was an unapt word , and there was a fit and apt word , to wit caput , and vvilliams agreed to this , for he said it was adjudged in the common pleas , between pencrosse and tout , a man was bound in a bond in viginti literis , when it should have been viginti libris , and adjudged void for the same cause , but after in hillary term the plaintiffe had judgement , because in one dictionary nobilis was a latine word for six shillings eight pence . ventris versus farmer , trin. . jacobi . a lease was made for years , rendering rent payable at a place of the land : and the court was moved , whether a demand of the rent may not be made upon the land , but denied by the whole court ; for they said , that the demand must be made at the place of payment , although it be of the land. field versus hunt , mich. . jacobi . hunt in vvorcester court obtained a judgement after a verdict in debt upon a contract , for twenty sheep , and after it was removed by a writ of error into the kings bench , and generall errors assigned : but upon opening the errors , it was shewed the court that there was no declaration in vvorcester court ; for the declaration was thus , raphael hunt complains against h. field of a plea , that he render to him twenty pounds which he owes unto him , and unjustly detains , and whereof the same plaintift by m. his attorney , whereas the said defendant , &c. and by fennor , vvillams , and cook , it is no declaration for default of this word dicit , and the sense is imperfect : and although yelverton objected , that a declaration is sufficient , if it be good , to a common intent ; and quer. being writ short , it may be queritur , and then it is , and whereof the same complaines ; but the court held that would not help , for it is not certain to whom the word idem should refer , whether to the plaintiff or defendant , and of the two it should rather refer to the defendant which is the next antecedent ; and the court held it matter of substance which is wanting , and therefore naught ; but if it had been . and whereof the same raphael quer . being writ short , it had been good ; for because the party plaintiff is certainly named , and then quer. could have no other sense then queritur , and judgement reversed , which mark . harrison versus fulstow , mich. . jacobi . the plaintiff brought action of debt for fourscore and six pounds , in the common pleas , against t. harrison , and the capias was continued accordingly against t. harrison , but the plur. capias was against william harrison , which was the very name of the defendant , and that was but for fourscore and five pounds , which varied from the first entry ; and william harrison appeared upon the exigent , and the plaintiff declares against william , and he pleads , and they are at issue by the name of william , and a verdict for the plaintiff , and judgement accordingly against william , and upon a writ of error it was assigned for error , that the original did not maintain the proceedings , for the original is against tho. and the proceedings against william : and the plaintiffs counsel would have excused it , because the judgement being against william , and the original against tho. as it is certified , it cannot be the original against william , and so the judgement against william being without original it is aided by the statute after a verdict : but the court held it to be error ; for there is great difference between no original and a naughty original ; for the want of an original is helped , but not a vitious original , and judgement was reversed ; for upon diminution alleadged , that this original was certified as the original in that suit , or else there was no obtulit at all . lothbury versus humfrey , mich. . jacobi . lothbury and his wife administratrix of vv. r. brought an action of debt as administrator upon an obligation of forty marks , dated . april , eliz. made by the defendant to the intestate , . the defendant pleades that ridge the intestate . october , the first jacobi . made his will , and made the defendant his executor , and devised the obligation , and the money therein contained to one h. son of the defendant , and died , after whose death the defendant takes upon him the burthen of the executorship , and administers divers goods of ridges , and that he is ready to aver this : to which plea the plaintiff demurrs generally , and adjudged for the plaintiff ; for the defendants plea is not good without a traverse , that ridge died intestate . for the action is brought as administrator , and they count upon a dying intestate , and that being the ground of the action ought to be traversed , as it is h. . . debt brought against one as administrator of j. and counts that j. died intestate ; the defendant pleads that j. made his will , and made him executor , and held no plea without a traverse ; and the same law , h. . . debt brought against one r. executor of r the defendant pleads that r. died intestate at such a place , and held no plea ; for if the plaintiff maintain that r. made the defendant executor , and the other say , that r. died intestate at such a place , this makes no issue , and therefore the defendant ought to traverse that r. died intestate without that , that he made him executor , and h. . . the very case in question is adjudged , that such a plea in barr is not good , without a traverse , to wit , to say without that , that r. died intestate , according to the h . . and this was agreed by the whole court without argument . cheyney versus sell , mich. . jac. cheyney as executor of cheyny , brought an action of debt upon an obligation against sell , & the case was , that the testator had put himself as an apprentice to sell for seven years , and sell bound himself to pay to his apprentice , his executors , or assignes l. at the time of the end or determination of his apprentiship , the apprentice serves six years , and then dies , and it was moved by towse that the money was due at the time of his death , because then his apprentiship ended , for he said , if a man make a lease for one and twenty years to another , and oblige himself to pay to the lessee ten pounds at the end and expiration of his term , and within those years the lessor infeoffes the lessee , so the term expires , and the ten pounds should be paid instantly ; but cook denied that case , because the lessee hastened the end of his terme ; but he said , that if a man lease land to another for seven years , if the lessee should so long live , and the lessor oblige himself to pay ten pounds at the end of his terme , and he die within seven years , there he was of opinion , the money was presently due upon his death , but in the principal case , the whole court held , the chief justice being absent , that the obligation was discharged , and that the money should notbe paid . willot versus spencer , mich. . jacobi . the plaintiff brought an action of debt for tithes of wood upon the statute of e. . and forster argued , that judgement ought not to be given for the plaintiff , because the plaintiff did not shew in his plaint that he was parson ; for he ought to bring his action according to that name that he claimed the tithes by , and this ought to be expressed in the queritur , and therefore if a man bring his action to recover any thing , as heir , executor , or sheriff , he ought to name himself so in the queritur , h. . & h. . but towse said , the same exception was taken between merrick and peters , and disallowed . fleming justice said , that if it had been by writ he must have shewed it , but need not , it being by plaint , if the truth appear in that , and if a man bring his action as assignee , he need not shew it in his plaint , if the truth appear in the declaration , but it is otherwise in an original , and a plaintiffe in kings bench , as an originall , but not in all things , and if the plaint be incertain , the defendant in that court shall plead in abatement of the plaint , as to an original in the common pleas ; and at last two presidents were shewen , one between champion and hill , and the other between merrick and wright , that were allowed without naming of the plaintiff rector in the queritur , and judgement was given for the plaintiff by the whole court. note , it was agreed by all the court of kings bench , mich. . jac. and hath many times been ruled , that if a man sell his tithes for years by word , it is good ; but if the parson agree that one shall have his tithes for seven years by word , it is not good , by the opinion of fleming cheif justice , because it amounts to a lease ; and he held strongly , that tithes cannot be leased for years without a deed. cob versus hunt , hill. . jac. cob sued a prohibition in the common pleas against hunt parson of d. in kent , and suggests a modus demandi , as to part of the tithes demanded against him in the spiritual court , and as to the residue suggests a contract , executed and performed between him and the parson , in satisfaction of the residue , and because he proved not his suggestion within six moneths , hunt the parson had a consultation , and costs assessed by the court to fifty shillings , and damages fifty shillings by the statute of the e. . they shall be doubled , but in truth no judgement was given to recover them , because these words , videlicet , ideo considerat . fuit qd . recuperet , was omitted : yet hunt thinking that all was certain and perfect , brought an action of debt in the common pleas for the costs , &c. and declared of all the matter above , and that the damages were assessed , upon which it was adjudged , that he should recover , &c. and that the costs were not paid , per quod actio , &c. and had a judgement against cob , by non sum informat . and thereupon cob brought his writ of error , as well in the record and processe , &c. of the prohibition , as of the record and processe in the action of debt for the costs , and assigne the general error : but yelverton assignes two errors in special ; first , that there was no judgement in the prohibition for recovery of the costs , but onely an assessement of costs without any more , which is not sufficient ; for the assessement of costs onely is but matter of office in court , but no judgement of court to binde , which was confessed by the whole court. the second error was that no costs ought to be assessed or adjudged in the cause above , because the prohibition is grounded solely upon the modus decimandi , which needs proof , and upon the contract between the parties , which requires no proof ; and the suggestion being intire , and part of it needing no proof , they could not give any costs , for that is onely where the whole matter in the suggestion needs proof ; and therefore the mixing the contract with the manner of tithing priviledges the whole , as to the matter of costs : but they might grant a consultation , as to that part of the suggestion which concerned the manner of tithing , but not for the rest , which was granted by the whole court , and so both the judgements were reversed , which mark . markham versus mollineux , hill. . jac. mollineux sued out an original in the common pleas in an action of debt upon a bond against markham , by the name of john markham , alderman de d. and all the mean processe are continued against him by the name of alderman markham he appeared , and the plaintiff declared against him by the name of markham of d. esquire , and afterwards the parties were at issue , and it was found for the plaintiff , and judgement entred ; and it was reversed by writ of error , because it did not appear that , that markham was the same markham , against whom the original was prosecuted , and the processe continued , but it seemed rather that he was another person by reason of his severall additions of alderman and esquire , which mark . oliver versus collins , pasch . . jacobi . the plaintiff brought an action of debt upon the statute , for not setting forth of tithes , and shews that he is parson of the parish church of little lavar , in com. essex , and that the defendant had so many acres within the parish of little lavor , sowed with wheat , whereof the tenth severed from the ninth part came to eight and twenty pounds , and shews that the defendant at little lavor aforesaid took and carried away the wheat without setting forth the tithes , contrary to the statute , by reason whereof he forfeited threescore pounds , and upon nil debet pleaded it was found for the plaintiff , and moved in arrest of judgement ; first , that the statute was mis-recited , for whereas the the plaintiff declared , that the . novemb. e. . it was inacted , it was said , that there was no such statute ; for the parliament commenced e. . and continued by prorogation untill the . novemb. e. . and therefore the plaintiff was mistaken in that , but that exception was not allowed , for there were an hundred presidents against it ; and in respect of the continual use in that form , as the plaintiff had declared , the court said , that they would not alter it , for that was to disturb all the judgements that were ever given in that court. and secondly , it was objected , that the matter was mis-tried , and there ought to be a new triall , because the venire facias was of parva lavar , whereas by their pretence it ought to have been of the parish of little lavar , to which yelverton made answer , that the triall was well enough , for by that action no tithe is demanded nor recovered , but the defendant is onely punished for his contempt against the statute , in not setting forth his tithe , and the wrong done to the plaintiff complained of , is laid onely in the village of little lavor , and not in the parish ; for all the places in the declaration where the parish is named , are onely matter of conveyance and inducement to the action , and not of the substance , for the substance is onely that where the wrong and grievance is done to the plaintiff , and that arises onely in parua lavor , which was granted by the whole court upon a grand debate , at severall dayes , and judgement was given for the plaintiff : and the like judgement was given between barnard and costerdam in an action upon the same statute , upon the last point for the venn ; and this hath been twice adjudged ; but in costerdams case which concerned the earl of clanrickard , with whom yelverton was of councel , it was resolved , that if the issue be upon the custome of tithing , and that it be found against the defendant , he shall pay the value expressed by the plaintiff in his declaration ; for because by the collateral matter pleaded in barr , the declaration is in whole confessed . smith versus smith trin. jacobi one bisse made k. his wife , and john his sonne , being one year old executors and k. solely proved the will , and afterwards married the plaintiff , and they two brought an action of debt as executors against the defendant , and the defendant pleads in abatement of the bill , that john was made executor with k. and is yet in life , and not named , the plaintiffes reply , that john was but of the age of one year , and that k. proved the will , and had administration committed to her during the minority , and that john is , and was at the time of the writ purchased within the age of seventeen years , and upon that yelverton demurred , and adjudged for the defendant that the bill should abate , for both of them in truth were executors , and ought to be named in the action , and although by the administration granted during the minority , k. had the full power , yet the infant ought to be named , he being executor . gomersall versus ask , trin. . iacobi , the defendant brought an action of debt against the defendant as administrator of her husband , upon two former judgements given in two actions of debt against the intestate , and shews the recoveries , the defendant pleads that the intestate entred into a recognisance el. in chancery to sir henry bechel , and shows , that after the judgements had by the plaintiff , sir h. obtained a judgement against the intestate , upon the recognisance , and that she hath not assets to satisfie the plaintiff of the intestates goods , beyond goods that are chargeable and liable to the judgement upon the recognisance , to which plea the plaintiff demurres , and by fennor and williams justifies the plea in barr was good ; for although the plaintiffes judgements mentioned in his actions are before sir h. judgement , yet because the plaintiff by his action doth not demand execution of the judgements , but onely his debt recovered , for this action brought it as an originall , and in the same court , as if he did demand the debt upon the first obligation , and therefore because the plaintiff had not sued out a scire facias , to execute the first judgements , but had prosecuted , a new originall the plea is good and allowable , as it had been upon the said obligation , but yeluerton and fleming were of a contrary opinion , for the plea had not been good against the intestate himself , and the executor or administrator represents his person , and therefore the plea is not good , but onely in excuse of a devastavit , and they were of opinion , that the action brought by the plaintiff , was in nature of a scire facias , for he demanded the debt in another course , then it was at first , for that debt which was but matter of escript , is now become by the judgement to be debt upon record , and of so high a nature , that the judgement being in force , he can never have an action upon the obligation which is adjuged in higgins case , co. rep. but cook doubted , and the plaintiff dying , the court did not resolve . apleton versus baily mich. . jacobi . apleton as executor of apleton brought an action of debt against baily for the arrerages of diverse rents as well copy-hold rents , as free-hold rents pertaining to a mannor , whereof the testator was seised and thereof died seised , and the rents were not paid to him in his life time , by reason whereof they belonged to the plaintiff as executor : and the defendant though he was requested had not paid against the form of the statute of the h. . and the court , that the action , did not ly for the arrerages of copy-hold land , for the statute of the h. . doth not extend to them , but only to rents out of free land. secondly , it lies not for the rent of free land , because the plaintiff hath not shewed in his declaration that the defendant had attorned to the testator in his life . and although in pleading it is good to alledge a feoffment of a mannor , without pleading any livery , or of any attornment of tenements , but when the rent of any free-hold land comes in debate it behoves both the owner of the mannor and and his executor that demands it , to convey the privity between the tenant and the lord which ought to be by attornment ; for rents and services rest not without attornment , which , mark . peirson versus ponuteis mich. . jacobi the plaintiff as executor of peirson brought an action of debt against jo. ponuties of london merchant , that he should render to him three and thirty pounds twelve shillings , in that the defendant . oct. . at london , &c. by his bill obligatory hath acknowledged himself to owe to the testator , . florens , polish , which then amounted to thirty three pounds twelve shillings to be paid to the testator , ad solucionem festi purificat , &c. called candlemas day next insuing , and to that payment had obliged himself by the same bill . and the plaintiff avers that , predicti soluciones dicti festi purificat , &c. next after the making the bill were according to the use of merchants the twentieth of february . yet the defendant had not paid the . florence , polish , or the thirty three pounds twelve s. to the testator nor to the plaintiff . the defendant pleads , non est factum , and found against him , and moved in arrest of judgment ; that the declaration was not good , because first the payment of candlemas is not known in our law , but that was not allowed for that which is unknown in ordinary intendment is made manifest , and helped by the averment in the declaration , because that payment among merchants is known to be upon the twentieth of february , and the judges ought to take notice of those things that are used amongst merchants for the maintenance of traffick , and the rather , because the defendant doth not deny it , but pleads non factum , by which he confesses the declaration to be true in that averment . secondly it was objected , that as the case is , the use of merchants is not materiall , because the testator by any thing that appears , was not a merchant , but it was not allowed , because the defendant that bound himself to pay , was a merchant , and the testator ought to take the bill , as the defendant would make it , and he chose to make the payment according to the use of merchants and not according to the ordinary intercourse between party and party , which mark this by the whole court. talbot versus godbold , mich. . jac. godbold eliz. sealed a bill to the plaintiff made in this manner , memorandum , that i have received of edw. talbot , who was the plaintiffes testator , to the use of my master , mr. serjeant gaudy the sum of forty pounds to be paid at mich. following , the plaintiffe brought an action of debt upon this bill , and declared verbatim as the bill was , and demanded the four pound , to which declaration the defendant demurred , and his pretence was as he supposed , because he had received the money but as a servant to another use , and so he ought not to be charged as a principall debtor , for the bill is but a testimony of the receit , as is the h. . and h. . in account , for there an indenture testifying the receit which under seal did not alter the nature of the first account , but it was adjudged for the plaintiff , for although the first part of the bill witnesse the receit to be to anothers use , yet in the last clause of the bill , for the payment of the money , he doth not say to be repaid by his master , for then it would not charge him , but the clause is generall to be repaid , which of necessity ought to bind him that sealed , for otherwise the party shall loose his debt , because he had no remedy against serjeant gaudy , and because the debt appears to be due , it shall be intended to go onely in satisfaction of a due debt which mark . alexander , versus lamb , mich. jacobi , the plaintiff brought an action of debt upon an obligation of forty pounds against lamb , as executor , p. the defendant pleads that p. in his life time was indebted to him in forty pounds due debt , and that the goods of the testator to the value of ten pounds came to the defendants hands , which he retained towards satisfaction of his debt , and averred that no more goods beyond the goods to the value of ten pounds came to his hands to be administred , the plaintiffe replyed and shewed that the defendant is executor in his own wrong to p. and that he hath many other goods of p. to be administred at s. in the county of norfolk , and concludes , & hoc paratum est verificare , &c. the defendant rejoyns , and demands judgement , if the plaintiffe shall be admitted to say that the defendant is executor of his own wrong , seeing by his declaration he had affirmed him to be executor of the testament , the plaintiffe demurres in law to this plea , and as to the matter in law , all the court was for the plaintiff , for he may well reply that the defendant is executor of his own wrong , notwithstanding the declaration , for there is no other form of declaring as is adjudged in coults case , rep. fol . but the whole court held the whole plea to be discontinued , for the defendant having pleaded as to the goods to the value of ten pounds , which he retained in his hands for a debt due to him , and that he had no other goods , and concludes , hoc paratum est definire , which is not good , for he ought to have said , & hoc petit quod inquiratur per patriam , for there being a surplusage of the goods denied by the defendant , and urged by the plaintiff , it ought to come in issue , but could not by reason of the ill conclusion , but in the same term between west the plaintiff , and lane defendant , west demanded four pounds debt against lane , as executor , as above , and all the rest of the plea , is as above , and judgement was given for the plaintiff , because the defendant had confessed goods to the value of ten pounds in his hands , which was more then the defendant demanded , and therefore although by judgement of law , an executor of his own wrong cannot retain goods to pay himself , and although the other proceedings in the plea are naught , yet judgement shall onely be given upon the confession of the defendant , and so it was entered with mark. green versus eden , mich. jacobi , the plaintiff brought an action of debt upon an obligation for a hundred pounds , dated september the third , jac. the condition was , that if the defendant the fourth of september , anno jacobi , pay a hundred pounds to i. s. at such a place , and also save the plaintiff harmlesse from any suit which should be brought against the plaintiff , by reason of the bond , in which he was bound to j. s. as surety for the defendant , then , &c. the defendant pleaded , that true it was , that he by his obligation bearing date september the third jac. did become bound to the plaintiff in two hundred pounds , but further said that the said obligation was not delivered as the defendants deed untill the seventeenth of september , in the second year of king james , and then it was first delivered , and further sayes that he had found the plaintiff harmlesse , &c. to which plea , the plaintiffe demurres , and adjudged for the plaintiff , for the bond mentioned in the declaration is not answered , for the plaintiffe indeed , shows that the defendant was obliged to him by his obligation , bearing date the same day , &c. which is laid to be a perfect bond , the same day as the plaintiff counts , and then for the defendant to come and say that it was first delivered the seventeenth of september jacobi , which is a year after , is no good argument , but naught without taking a traverse , without that it was made the third of september jacobi . secondly , as the defendant hath pleaded , he hath made part of the condition idle , and vain , for by the condition it appears , that there is a condition for the payment of a hundred pounds at a day to come , to wit the fourth of september , in the second year , and now the defendant by his plea hath made the day of payment , passed before he supposes the bond to be delivered , within a manner takes away the effect of the plaintiffs suit , and if the condition had not stood upon two branches , but upon one onely , and the defendant will plead the delivery after the condition becomes impossible to be performed , then is the obligation become single for the whole two hundred pounds , which mark , by the whole court. barret versus fletcher , pasch . jacobi , the plaintiff brought an action of debt upon an obligation of five hundred pounds , with a condition to stand to the award of j. s. and j. d. so that , &c. the defendant pleads if the arbitrator made no award , the plaintiff replies , and shews the award made verbatim , and concludes that they had made an award , and doth not assign any breach . the defendant rejoyns , that the award pleaded , is not the deed of the arbitrators , and issue being joyned upon that , there was a verdict for the plaintiff , and yelverton moved in arrest of judgement , because the plaintiff in his replication had not assigned any breach of the award , and so had shewed no cause of action , for the replication is not for any debt , but is guided by the condition , and is for the performance of a collaterall thing , to wit of an award and although the defendant had not answered any thing to the breach , if it had been assigned , yet the court ought to be satisfied that the plaintiffe had good cause of action to recover , otherwise they should not give judgement , and although a verdict is given for the plaintiff , yet this imperfection in the replication , is matter of substance , and is not helped by the statute , by the opinion of the whole court , except justice williams . barwick versus foster , mich. jacobi . action of debt brought for rent , the cause was thus , the plaintiff leased certain lands to the defendant , at mich. jacobi for five years , yielding and paying rent at our lady day , and mich. yearly , or within ten dayes after , and for rent behind at the last mich. the plaintiff declares , as for rent due at the feast of saint michael , and prima facie , it seemed to the whole court , but crook that the action would not ly , but that the rent for the last quarter was gone , for it was not due at michaelmas , as the plaintiff had declared , for his own , shewing it is payable , and reserved at michaelmas , or within ten dayes after , & although the lessee might pay it at michaelmas day , yet it is not any debt which lies in demand by any action , untill the ten dayes be passed , and the reservation being the lessors act , it shall be taken most strongly against himself , and although the end of the term is at michaelmas , before the ten dayes , untill which time the rent is not due , and because at that time the term is ended , the lessor shall loose his rent ; as if a lessor die before michaelmas day , the executor shall not have the rent , but the heir by discent , as incident to the reversion , and if the lessee should pay the rent to the lessor at michaelmas day , and the lessor should dye before the tenth day , his heir , being a ward to the king , the king shall have it again , for of right it ought not to be paid untill the tenth day , according to the e. . but this case being moved again in hillary term , fleming , fennor and yelverton , changed their opinion , and held that the lessor should have the rent , for it was reserved yearly , and the ten dayes shall be expounded to give liberty to the lessee within the term , for his ease to protract the payment , but because the ten dayes after the last michaelmas are out of the term , rather then the lessor shall loose his rent yearly , the law rejects the last ten dayes . molineux versus molineux , hill. jacobi . an action of debt brought against mo. upon an obligation , as heir to his father , the defendant pleads , that he hath nothing by discent , but twenty acres in d. in such a county , the plaintiff replies , that the defendant had more land by discent in s. to wit , so many acres , and upon this they are at issue , and found for the defendant , that he had nothing by discent in s. by reason of which the plaintiff could recover , and had his judgement to have execution of the twenty acres in d. upon which judgement in the common pleas , the defendant brought his writ of error , and assigned for error a discontinuance in the record of the plea , from easter term , to michaelmas term after , and whether this were helped by the statute of eliz. because it was after a verdict was the question , and adjudged to be out of the statute , and that it was error , for the judgement was not grounded upon the verdict , but onely upon the confession of the defendant of assetts , and the verdict was nothing to the purpose , but to make the defendants confession more strong , and therefore the statute of the of eliz. is to be intended , when the triall by verdict is the means and cause of the judgement , which mark ; and therefore the judgement was reversed , the law seems to be the same , if the plainiiff brings an action of debt for forty pounds , and declares for twenty pounds upon a bill , and twenty pounds upon a non tenet , and the defendant confesses the action , as to the money borrowed , and they are at issue , as to the money demanded by the bill , which passes also for the plaintif , by reason wherof he hath judgement to recover the forty pounds demanded , and the damages assessed by the jurors , and costs intire , in which case if there be a discontinuance upon the roll , it seems that all shall be reversed , notwithstanding the verdict , for the verdict is not the onely cause of the judgement , but the confession also , and the costs assessed intirely for both , but yet inquire of this . it was adjudged by the whole court , that in those cases , where an executor is plaintiff , touching things concerning the testament , and is non-suited , or the verdict passes against him , that he shall not pay costs upon the new statute of jac. for the statute ought to have a reasonable intendment , and it cannot be presumed to be any fault in the executor , who complains , because he cannot have perfect notice of what his testator did , and so it was resolved also by all the judges of the common pleas. goodier versus jounce , trin. jacobi . jounce recovered in the common pleas a hundred and thirty pounds against goodier , in crastino animar . jacobi , and the eight and twentieth of november the same term , being the last day of the term , the plaintiff proved an elegit against goodier , to the sheriffs of london , where the action was laid , and to the county palatine of lancaster , returnable , crastino purificationis , after ; which was granted by the court , and by the elegit , to the county palatine , it appeared , that it was grounded upon a testat . returned by the sheriffs of london , that goodier had nothing in london , where in truth they never made such a return , and upon that elegit by a jury impannelled before the sheriff of lancaster ; a lease of tithes was extended for fifty nine years then to come , at the value of a hundred pounds , which the sheriff delivered to j. the plaintiff , as a chattell of goodiers , for a hundred pounds , and returned it , and that goodier had no more goods , &c. and thereupon goodier brought a writ of error in the upper bench , and assigned for error , that no return was made by the shetiffs of london , nor filed in the common pleas , as was supposed in the elegit , and it was adjudged error , for although the plaintiff might have an elegit , as he desired in the common pleas , immediately both into london and lancashire , but seeing he waived the benefit thereof , and grounded his execution upon a testatum , which was false , it was error in the execution , for as it appears , h. . . and h. . . that a testatum is grounded upon a former return filed , that the party had nothing in the county where the action was brought , and because it appeared upon record , that the prayer of the elegits was made the eight and twentieth of november , the last day of the term , and by the testatum it is supposed that the sheriffes of london had returned quindena martini which is before the eight and twentieth of november , that the defendant had nothing in london , which seemed to be contrary to the record , yet that is not materiall , but makes the matter more vitious , for it may well be , that since the judgement was crastino animarum , a testatum might not issue out returnable quindena martini , and it shall be the plaintiffes fault that he did not file it , and it shall be presumed to be such a writ , as the plaintiffs own processe doth recite , and note that the whole court did adjudge in this case , that goodier should be restored to the term again , and although it was valued by the jury , but at a hundred pounds , and delivered to jounce the plaintiff to hold as his own goods and chattells , yet goodier shall have it again from jounce , for he being the party himself , it is in law but a bare delivery in specie , and therefore ought to be restored in specie again , and doth not absolutely alter the property , but attends upon the execution to be good or naught , as the execution is , and so it was adjudged before , in robothams case , and also in worrells case , as mr. noy said to yelverton , but it had been otherwise , if the sute had been to an estranger , by the sheriff of the term , for a hundred pounds according to the opinion of eliz. dy. for it is the parties folly , that he doth not pay the judgement , and if such sales should be made void none would buy goods of the sheriff , by reason whereof , many ex - , ecutions would remain undone , and this by the opinion of the whole court. smith versus newsam and his wife , mich. jacobi . the plaintiff , as son and heire of geo. s. his father , brought an action of debt against the defendant for twenty marks , and declares that his father , april the twenty seventh , eliz. leased to the defendant one house , &c. in b. in the county of bedford , from michaelmas next following , for one and twenty years , yielding and paying during the term , if the father should so long live , thirty pounds at our lady day , and michaelmas , by equall portions , and yeelding and paying to the heires and assignes of the father after his death twenty marks , at the termes aforesaid , by vertue whereof the defendant entred , and occupied from michaelmas eliz. &c. the father dyed the fourth of may jur. at b. and because twenty marks for a half years rent were behinde , the action was brought , the defendant demurred to the declaration , and adjudged against the plaintiff , for the clause by which the court is reserved to the heirs , gives but twenty marks for the whole year , and not twenty marks every a year , and therefore the plaintiff had mistaken his demand in suing for twenty marks , for one half year , ( for these words ad terminos praedictos ) are onely the time of payment of the twenty marks which were to be paid as the thirty pounds were , and although in the clause that reserved the rent to the heirs , the words ( by equall portions ) were omitted , yet the law will supply them , as it is in the h. . avowry . . rent granted to be taken at two termes of the year , and they named it shall be intended by equall portions , although the deed makes mention of that , for the reservation being the act of the lessor , shall be taken most strongly against him and his heirs , and therefore shall have but twenty marks for all the whole year , and no more , as in perkins , two tenements in common make a lease , rendring ten shillings , it shall be five shillings to each of them march . according to it the second cause of the judgement was because the plaintiff brought this action as heire to his father , and doth not shew in his declaration , that the reversion descends to him , and the rent demanded , is incident to the reversion discended , and so the plaintiff doth not make any title to have the rent , which mark , and judgement was given , that the plaintiff should take nothing by his bill . neale versus sheffeild trin. . jacobi rotulo . . the plaintiff brought an action of debt upon an obligation for fourteen pounds , the condition was that if the defendant should pay seven pounds to the plaintiff upon the birth-day of the child of john living which god shall send after the date of the bond then , &c. the defendant pleads , that the plaintiff after the making of the obligation and before the birth of any infant of the said j. living to wit the . september . jacobi was indebted to the defendant in one load of lime to be delivered upon request , and the same day it was agreed between them at l. that if the defendant would discharge the plaintiff of the said load of lime , that then in consideration thereof , the plaintiff would discharge the defendant of the said obligation , and would accept the said load of lime , which the plaintiff accepted in discharge of the obligation , and did then acquit the defendant of the said obligation , and demands judgement , to which plea , the plaintiff demurres , and adjudged for the plaintiff for two causes , first because the defendant had pleaded his barr in discharge of the obligation , whereas he should have pleaded it in discharge of the same contained in the condition of the obligation , for it is not a debt simply by the obligation , but the performance or breach of the condition makes it to be a debt , for the obligation is proved by the condition , so that if the condition be not discharged the obligation remains in his force and the matter in the barr is not pleaded in discharge of the condition , but of the obligation , and therefore it is not good , which mark . secondly , it appears that the condition it self cannot be discharged ; for the seven pounds is not due nor payable untill the birth of the childe of john living , which is a meer contingency , and remote possibility , whether he shall ever have a childe or no ; and therefore it resting in contingency , whether it will ever be a debt or no , it cannot be discharged ; for a possibility cannot be released , as it hath been adjudged in carters case , and it is not to be resembled to the case where the condition is to pay money at a day to come , for that may be discharged presently , for it is presently a duty , although it be not demandable untill the day ; and therefore because it cannot be known whether the day will ever come wherein john will have a childe ; and because it is no debt nor duty , therefore it cannot be discharged , by the opinion of the whole court. dodson versus keyes , mich. . jacobi . the plaintiff brought an action of debt upon an obligation for ten pounds , and declares that the defendant . octob. . at m. became bound to the plaintiff in ten pounds to be paid upon request ; the defendant demands oyer of the obligation , which was entred in haec verba , noverint universi per praesentes me thomam keyes tenerie & firmiter obligarie edw. dodson , &c. anno regni reginae dom. nostri jacobi , &c. rege defensor suis de scotia sexto & angliae quadragesimo secundo , . and upon this the defendant demurred , and adjudged for the plaintiff ; for there are two principal things to be contained in one obligation ; first , the parties to whom : secondly , the summ in which one party is bound , and they are both here expressed sufficiently to the view of the judges , for both the obligor , and obligee , are well named , and also the summ is well expressed to be ten pounds , but those words , by which it may be gathered , that the party intends to binde himself , are found in false latine , videlicet , ( tenerie & obligarie ) in which words there is onely an e. too much ; and it is true , false latine , as it is , h. . shall abate a writ , because the party may purchase a new writ , but it shall not overthrow an obligation ; for the party cannot be again bound when he will : and although there is no such year of the reign of the king , as of scotland , the sixth , &c. it is not material , for it is good , though it have a false date , as h. . kelly , and the party may surmise a date in his declaration , and it is good , and the defendant must answer to the bond , and not to the date , and the law is the same , if it have an impossible date , as the . of february , whereas there is but eight and twenty dayes in february , yet it is good : but in the principal case it is helped by the year of our lord which is certain , and sufficient , and the declaration good , which had omitted the year of the king , and put in the year of our lord , and judgement was given by the opinion of the whole court. hawes versus leader , hill. jacobi . hawes brought an action of debt against leader administrator of cookson , the case was thomas cookson , the nineteenth of february , jacobi , for twenty pounds paid into the defendants hands by the plaintiff , grants all his goods mentioned in a scedule annexed to the deed , and gives possession of the goods by a platter , and the goods remained in his house , as they were before , to be carried away upon demand by the plaintif , and covenants that the intestate , his administrators , &c. should safely keep them , and quietly deliver them , and to perform that covenant , the intestate binds himself in forty pounds to the plaintiff , and afterwards cookson died , and the plaintiff , the sixteenth of march , the sixth of king iames , demanded the goods of the defendant , being administrator , and he would not deliver them , by reason whereof the plaintiff brought his action , and in his declaration shews , in specie , what goods were contained in the scedule , the defendant pleads the statute of the eliz. of fraudulent deeds and gifts , &c. and further sayes that cookson the intestate , the twelfth of february , jacobi , was indebted unto divers persons , and names them in severall summes , amounting to a hundred pounds , and being so indebted the nineteenth of february , jacobi , made the deed of gift , as is above declared , being then of those and other goods possessed amounting to fourscore pounds and no more , and that it was made by fraud , and covin , between cookson and the plaintiff , to the intent to deceive his creditors named , and shewes how that cookson , notwithstanding the deed of gift , occupied , and used the goods all his life , and died , and that administration was committed to the defendant , the plaintiff replies , that the defendant had assets in his hands , to satisfie the debts demanded , and further sayes that the deed of gift was made upon good considerations , upon which they were at issue and at triall at huntington assises , cook rejected the triall , because the issue was not well joyned , and a replender ordered , upon which the defendant pleaded as is above , and the plaintiffe demurred , and adjudged for the plaintiff , first because the defendant had not averred in his barr , that the debts due , yet certain , unpaid to the creditors named , for there was four years time between the deed of gift made , and the death of the intestate , in which time the debts might well be presumed to be satisfied . secondly , the defendant did not shew that the debts due to the supposed creditors were by specialty , and then the matter of his plea is not good , for the defendant cannot plead such a plea , but to excuse himself of a devastavit , and that could not be as this case is , for he being administrator is not chargeable with the debts , if they be not upon specialty . thirdly , the defendant supposed that it would be a devastavit in him , if he should deliver the goods to the plaintiff which were contained in the deed of gift , but that cannot be , for those goods in the hands of the plaintiff are liable to the creditors , as an executor of his 〈◊〉 wrong , if the deed of gift be fraudulent . and fourthly , it may be the creditors will never sue for their debts , and by that means the defendant will justifie the detainer of the goods for ever , which would be very inconvenient . but if the defendant had pleaded a recovery by any of the creditors ; and that such goods to the value , &c. had been taken in execution this had been a good plea. fifthly , the defendant is not such a person as is inabled by the statute of eliz. to plead the plea aforesaid , for the statute makes the deed void , as against the creditors , but not against the party himself , his executors , or administrators , for against them it remaines a good deed of gift , and this by the opinion of the whole court. sallows versus girling , pasch . . jacobi . the plaintiff brought an action of debt upon a bond , and the condition to stand to the award of a. b. c. & d. of all actions , quarrels and demands , &c. so that the said arbitrement were made in writing , before such a day by the said a. b. c. & d. or by any two of them under their hands , &c. the defendant pleads that the said a. b. c. & d. nor any two of them made no award : the plaintiff replies , that a. and b. two of the arbitrators , before the day , by writing under their hands , &c. made an award , and set forth the award , and assigned a breach in the defendant for not paying of three pounds at a day past limited by the award , to which the defendant demurrs , and it was adjudged the plaintiff ; and the question was , whether the award made by a. and b. alone were good or no , because the submission was to four named , and in the premises of the condition the defendant is bound to stand to the award of four also , yet it was adjudged by the court upon consideration had upon every part of the condition that the award made-by two alone is good ; for the arbitrators are made judges by the assent and election of the parties , and it appears that the parties put their trust not in the four joyntly , but joyntly and severally , and the ita quod , &c. is an explanation of all the condition that they four or any two of them might arbitrate all matters between them , and so much appears , r. . . where two of one part , and one of another part put themselves to the award of i. s. now by this submission i. s. may arbitrate as well any matters between the two parties of one part , as between them , and the third because in the intent of the parties the end of their submission was to have peace and quietnesse : and h. . . the condition of a recognisance was , that if a. a. shall stand and abide the award of four , named three , or two of them , of all matters , &c. which is a division of their power ; and observe in the principal case , that untill the ita quod , comes the condition is not perfect , for all the condi●… is but one sentence . brisco versus king , trin. . jacobi . the plaintiff brought an action of debt upon a bond for three hundred pounds , with a condition , that the defendant should perform all covenants , clauses , payments , and agreements , contained in one deed poll of the same date , made by the defendant to the plaintiff , the defendant by way of plea sets forth the deed poll , in haec verba , in which deed was contained one grant and bargain , and sale of certain lands made by the plaintiff to the defendant for one hundred pounds paid , and two hundred pounds to be paid , in which deed there was one proviso , that if the defendant should not pay for the plaintiff to one j. s. forty pounds , to j. d. forty pounds , &c. at such a day , that then the bargain and sale should be void : and the defendant pleads that he had performed all the covenants , &c. comprised in the deed : the plaintiff assigned a breach for the not paying of forty pounds at the day , according to the proviso ; and the defendant demurrs , and adjudged for the defendant by the whole court ; for the condition bindes the defendant to perform other payments then such as the defendant is bound by the deed to perform , for the obligation was made but for the strengthning of the deed , and the deed requires not any compulsory payments to be made , but leaves it to the will of the defendant , or to make the payments specified in the proviso , or in default thereof to forfeit the land to the plaintiff , and therefore it appears that it was not the intent and meaning of the parties to make an obligation with a condition repugnant to it , and contrary to the deed poll of bargain of sale , and by this means the payment of forty pounds to j. s. which is made voluntary by the deed poll , shall be made compulsory by the obligation : but the word ( payments ) in the condition of the obligation shall have relation onely to such payments contained in the deed poll which are compulsory to the defendant , and not otherwise ; and because the neglect of the payment of forty pounds to j. s. assigned for the breach is denied to be voluntary for the defendant to pay or not , to which the condition of the obligation cannot in any reasonable construction extend , therefore it was adjudged against the plaintiff . woolby versus perlby , mich. . jacobi . an action of debt brought upon a lease for years , the plaintiff derives his title by the grant of the reversion , by way of bargain and sale in fee from the first lessor , and declares that by an indenture of such a date , one grants bargains , and sells for money the reversion to him in fee , which indenture was inrolled such a day , according to the form of the statute , and because he shewed not in his declaration in what court it was inrolled , and the statute of h. . parles , of many severall courts , and that it is no reason to put the lessee to such an infinite labour to search in all courts , as well at westminster , as in the countrey with the clerk of the peace , and for this cause after a verdict , a nil capiat per billam entred by the whole court. sir george savill , versus candish hill. jac. the old countesse of shrewsbury , had a verdict against savel , and upon a challenge of the sheriff on the plaintiffs part of the county of derby , the tenure was directed to the coroners , who returned all the writs , and at the assises , a tales was awarded , and the name of one of them of the tales was gregory grigson , &c. and by postea returned by the clerks of the assise in the common pleas , the tales was returned to be by the sheriff , but in the entring up the judgement it was made by the coroners , and the name of the man of the tales , by the clerk of the assise , was restored according to his right name gregory , but entred in the roll , by the name of george , and upon that judgement savill brought a writ of error , which depended ten years and more , and the first plaintiff , who was the countesse of shrewsbury died , this matter being indiscussed , and candish as executor to the countesse , revived all by scire facias why he should not have execution , and after many debates , the judgement was reversed for three causes : first because upon the pannell of the jurors names , after the twenty four jurors were named , at the foot of the pannell , two names were added to the jurors , which in truth were the men of the tales , but no mention was made that they were the names of the jurors , impannelled , de novo , according to the form of the statute , which ought to be , for at the common law the justices of assise cannot grant any tales , to supply the default of the first jurors , but it is given only by the statute of the . h. . which ordains that their names shall be added to the first pannell , and this cannot be discerned to be done accordingly , if such a stile and title be not made over their names viz. nomina jurator . de noto apposit . secundum formam statuti , to distinguish what is done by the common-law , and what by the aid of the statute , and also the coroners names ought to be added to the tales , at the bottom of the pannell , and in this case , their names were onely indorsed , which was upon the return of the first pannell , and although divers presidents were shown to the court , wherein the names of the jurors de novo appoposit . &c. were united upon the pannell , yet the court did not regard them , because it seemed that they passed in silence without debate had upon them , the second cause was because it appeared by the return of the postea , that the tales were returned by the sheriff , which is error in the first processe to the coroners , and although in the entry in the common pleas of the judgement , it is made to be by the coroners , yet it is not helped in this case , for the warrant of the roll is the clerk of the assises certificate , and thus is that , the tales was returned by the sheriff , and the court cannot intend it to be otherwise then is certified , and thirdly the name of the juror in the tales , which is , gregory is made in the entry of the judgement to be george , and although the will shall be amended in this point according to the certificate of the postea , then in the other point of the return of the tales by the sheriff , it is not amendable , and so it is error every way , and the judgement was reversed by the whole court. bridges , versus enion hillar . jac. the plaintiff declares , how that he and the defendant , february tenth anno . submitted themselves to the award of s. r. bodenham , who awarded they should be friends , and that the defendant should pay the plaintiff ten pounds at miasummer following , at such a place , and the ten pounds being unpaid , the plaintiff brought his action , the defendant pleads in barr a release made by the plaintiff to him , of all demands which was made , the tenth of april , before midsummer , when the debt was to be paid , and the release was of all demands , from the beginning of the world , untill the tenth of april , and shows the release to the court , to which the plaintiff demurres and adjudged against the plaintiff , for although the sum of money awarded is not grounded upon any precedent debt or contract between the parties , yet by the opinion of the court it lies in demand presently , and the plaintiff might assign it by his will , and the executor should have it , and by the spirituall law , administration may be granted of it , before the day of payment , if the plaintif dye before , yet it is not recoverable before midsummer , nor will any action ly for it , but it is a duty presently by the award , and as the award is perfect presently as soon as it is pronounced , so are all the things contained in the award , if they be not made payable upon a condition precedent on the part of one of the parties , as if an award be made , that if the plaintif shall give to the defendant at midsummer one load of hay , that then upon the delivery of the hay , the defendant should pay the plaintif ten pounds , in this case the ten pounds cannot be released before the day , for it rests meerly in a possibility and contingency , for it becomes a duty upon the delivery of the hay onely , and not before ; and therefore it is like the case , e. . . of a nomine pene waiting upon the rent , which cannot be released untill the rent be behinde , for the not paying the rent makes the nomine pene a duty ; and the case in question is like the case , littleton . where a man is bound to pay money at a day to come , for a release of actions before the day cuts off the duty , because by h. . . it is a duty presently , and the case is stronger here , because the release is of all demands ; which observe . morgan versus sock , pasch . . jacobi . sock brought an action of debt upon an obligation of fourteen pounds entred into by ar. morgan , anno . jac. against tho. morgan his administrator ; the defendant pleads that after the death of arth. and after administration was to him committed , to wit , the , of september , ann. . the plaintiff brought his original against him , of which he had no notice nntill the . of february ann. . before which day the defendant was upon the exig . for not appearing , which exig . was returnable tres pasch . after , and that the . of febr. which was before the notice , his letters of administration were revoked by the archbishop , and granted to rich. m. the brother of arth. which rich. is now administrator , and that he at the time of revoking the administration had divers goods of the intestates in his hands , and shews them what they were , to the value of two hundred pounds , and that he after the administration revoked , and before notice of the suit , had delivered them over to rich. to wit , the . of february , . jacobi , and that he at the time of the administration revoked , had fully administred all the goods of the intestates , besides the goods delivered to rich. &c. the plaintiff replied , that the administration was revoked by covin between the defendant and rich. and upon that they are at issue , and the jury found it to be covin , by reason whereof the plaintiff had a judgement to recover the debt and damages of the goods and chattels of the said arth. at the time of his death , being in his hands , to be levied , and upon that judgement he brought a writ of error , and assigned for error , that the judgement ought to be conditional , to wit , to recover the debt of the goods of the intestate , if so much remain in his hands , and not absolutely . but the judgement was affirmed by the whole court ; for where the judgement may be final and certain , there it shall never be conditional . and because it appears by the defendants plea , that he had two hundred pounds in his hands of the intestates goods , it would be in vain to give judgement against him , if he had so much in his hands , seeing he himself hath confessed by his plea , that 〈◊〉 more in his hands then would satisfie that debt ; and if 〈…〉 could not levy the debt in the defendants hands , he may upon the defendants 〈…〉 damage return a devastavit , and this by the opinion of the whole court , and then there was shewed to the court a president in the common pleas to that purpose . donghty versus fawn , mich. . jacobi . the plaintiff declares upon an obligation of an hundred and twenty pounds , dated . novemb. . eliz. and the condition was , that one edw. astle by his last will in writing of such a date , had disposed the wardship of the defendant , whereof the defendant was possessed , &c. if therefore the defendant do save and keep harmlesse the plaintiff , &c. from all charges , and troubles , &c. which may happen to the plaintiff , &c. for or by reason of the last will of the said ed. a. or from any thing mentioned in that , touching or concerning one m. fawn , or any legacy or bequest to her given or bequeathed , or otherwise from ed. a. to her due , then the obligation , &c. the defendant pleads that the plaintiff was not damnified . the plaintiff replies , that after the obligation made , one m. smith in the behalf of jo. and ed. a. sons of the said ed. a. named in the condition , did exhibite a bill against the plaintiff , as administrator of a. in the chancery , for the payment of the portions of the said sons , to which bill the plaintiff by way of answer pleaded fully administred , and for the making good thereof , sets forth divers payments by him made , and amongst other payments shews that he had payed to m. fawn , named in the condition , sixty pounds for a legacy due by the will of the said ed. a. the payment of which sixty pounds was disallowed by that court , and by the order of the chancery , sixty five pounds paid , for not allowing the first sixty pounds to ed. a. the son , which sixty and five pounds the defendant had not repaid , though thereunto requested , and so he was damnified ; to which replication the defendant demurrs ; and the opinion of the whole court after a great debate , was against the plaintiff , for the plaintiff in his replication had alleadged two causes to inforce his damage ; the first was , that the plaintiff in his answer in the chancery had alleadged the payment of sixty pounds to m. f. for a legacy due to her by the will , and that such allegation was rejected by the court , of chancery , and neither of those matters are certainly alleadged , but by way of implication , and not expresly ; for he ought to have shewn that a legacy of sixty pounds was given to m. f. by the will of e. a. for although the will of e. a. is recited in the condition in the date , against which recitall the defendant may not be admitted to say , that he made no such will , yet the legacy given to m. f. is not recited in the condition , if not in the general , against which the defendant may take a traverse , that eáw. a. did not bequeath such a legacy of sixty pounds , and upon that a good issue may be taken . and secondly , the plaintiff sayes , that the payment of the said sixty pounds was disallowed by the court of chancery , and doth not appear in the replication where the chancery was at that time , to wit , whether at westminster , or at any other place , and it is issuable and triable by a jury , whether any such order of chancery were made or not , for the orders there are but in paper , and are not upon record to be tried by record , but by a jury : and the plaintiff perceiving the opinion of the court against him , prayed that he might discontinue his suit , which was granted by the whole court ; but quaere of this , it being after a demurrer . weaver versus clifford , pasch . . eliz. rotulo . the plaintiff brought an action of debt upon an escape against clifford , and declares that one a. was bound to the plaintiff in one recognisance of a hundred pounds to be paid at a day , at which day a. made default of payment , and the plaintiff sued out two scire fac . and upon the second scire fac . a nihil was returned , and the plaintiff had judgement to recover ; and afterwards he sued out a levari fac . and a nihil being returned , the plaintiff prosecuted a capias ad satisfaciend . by vertue of which writ the defendant being then sheriff took the said a. and afterwards at d. in the county of s. permitted him to go at large ; to which the declaration the defendant demurred . damport for the defendant , and he shewed the cause of the demurrer to be because a capias upon the recognisance did not lie ; and he divided the case into two parts , first whether a capias would lie in the case ; and secondly , whether the sheriff would take the advantage of such a naughty processe ; and as to the first it seemed to him that a capias would not lie , because it appeared by herberts . repub. fol. . and garnons case . rep. fol. . that the body of the defendant was not liable to execution for debt , by the common law , but onely in trespasse , where a fine was due to the king , or that he was accountant to the king : and the plaintiff could have no other processe but a fieri facias within the year , and if the year were passed , then he might have a new original in debt . but now by the statute of marlbrig , cap. . and westm. . cap. . a capias is given in account , and by the e. . c. . capias is given in debt and detinue , and by the h. . c. . the like processe is given in case , as in debt and trespasse , and the h. . c. . a capias is given in a writ of annuity and covenant , but statute gives a capias in this case , and therefore it remaines as it was at common , and by that it would not lie , which is also apparent by the recognisance , for that is , that if the debt shall be levied of the goods and chattels , lands and tenements , &c. and doth not meddle with the body , and by an expresse authority , & eliz. dier , . puttenhams case it is held that the chancery hath no authority to commit the defendant to the fleet , upon a recovery in a scire facias , upon a recognisance , because the body is not liable . and for the second point , it seemed to him , that the sheriff should take advantage of this , which should be as void and as null , whereof a stranger may take benefit , and to prove this he took this difference , when a processe will not lie , and where it is disorderly awarded , as if an exigent be sued out before a capias , or an execution before judgement ; for if that processe be originally supposed , there the processe is but erroneous , in druries case , . rep. . h. . . b. but if the action it self will not maintain the processe as a capias in formedon , there that processe is as void and null : and he took another diversity , when the capias is taken by the award of the court , when judgement is given that he shall recover ; for in that case it shall remain good , untill it be reversed , because it is the act of the court ; and so is druries case to be intended : but if the party himself take it , it is at his own peril , as here it is ; for the plaintiff hath onely pleaded , that he prosecuted , &c. which is as void to the party who sued it out , and he shall have no benefit of it ; but the sheriff shall not be punished for false imprisonment , because he is not to examine the illegality or validity of the processe ; for the h. . . if a capias issue out without any original : and the party be taken , the sheriff shall not be punished ; and for these reasons he prayed judgement for the defendant : noy was for the plaintiff , and he agreed , that at the common law no action did lie in this case , as it hath been said ; but he was of opinion , that this case is within e. . cap. . for the intention and drift of the statute was to give speedy remedy to recover debts , and the action is all one in the eye of the law , as if it had been done by original , which in the equity of the statute . and a capias lies upon a recognisance against a surety for the peace , and upon a scire facias against the bail in the upper bench. as to puttenhams case , the reason , because he was not in execution before . and for the second objection , although the capias did not lie , yet it is but error ; for if the court had jurisdiction to hold plea of the cause , although the process be naughtily awarded , it is but error , of which the sheriff shall not take benefit ; and therefore if a woman have recovered in dower , and hath damages in the common pleas , and thereupon the party takes a capias for the damages , and the party be taken , and suffered to go at large , it is an escape , hen. . . and if a capias be awarded in the common pleas , after the record removed , it is but error , and so ruled , e. . title barr , . but if the court hath no jurisdiction in the cause , as a formedon brought in the upper bench , as it is r. . . or an appeal in the common pleas , or where a writ is awarded out of the chancery , returnable in chester , these are void , and coram non judice , and there ought not to be any arrest upon such a writ , and he cited a case , trin. . and . eliz. in the exchequer , woodhouse and ognells case , ruled accordingy , and as concerning the difference taken , there is no other form of pleading , but only , quod prosecutus fuit quoddam , &c. without saying , that it was by the award of the court , and the court at that time did strongly incline , that it was but error at the most , but mich. ja. it was adjudged by the whole court , that the capias could not ly , and that it was onely error , of which the sheriffe shall not take the benefit . kketleys case , pasch . jac. an action of debt brought for arrearages of rent , brought against r. upon a lease for years , the defend . pleads in barr , that the time of the lease made , he was within age , to which the plaintiff demurres , and upon the first reading of the record , the question was whether a lease made to an infant be void , and it was said it should be void , otherwise , it might be very prejudiciall to infants , whom the law intends not to be of sufficient discretion , for the mannaging of land , and also the rent may be greater then the value of the land , to the great impoverishing of the infant , and took this difference , where it is for the apparant benefit of the infant , a sa lease made by an infant rendring rent , and the like , and when it is but an implied benefit , as here , for the law intends that every lease is made for the benefit of the lessee , although prima facie , it seems to be but tail and trouble , but the court held it onely voidable , as election , for if it be to the infants benefit , be that benefit apparant or implied , it shall be void in no case , prima facie , as h. . . b. but the infant may at his election make it void , for he shall before the rent day come , refuse , and waive the land , an action of debt will not ly against him , for otherwise , such a lease shall be more strong then any fine or record , and great mischeif would insue , and as to the prejudice , it well be answered , for if more rent be reserved , then the value of the land , he ought to have set it forth , that it might have appeared to the court , which is not done , for then clearly he should not have been bound , for there had been no profit to the infant , as russells case is , rep. . for if an infant release , it is not good , except he hath received the money , and it also appears by h. . that if he did not enter and manure the land , that an action of debt would not ly against him , but the principall case was without colour , for the rent , and taking the profits were land , as one day of the reservation , and secondly it was not shewed , that the rent was of greater value , and thirdly , the defendant was of full age , before the rent day came . higgins case , pasch . jac. action of debt brought by higgins against yelverton , was of an opinion at the barr , that if one be arrested , upon a processe in that court , and he puts in bail , and afterwards the plaintiff recovers , that he might , at his election take out his execution either against the principall , or bail , but if he took the bail , or arrested him , or had him in execution for the debt , although he had not full satisfaction , he could not meddle with the plaintiff , but if two be bail , although one bee in execution yet he may take the other also , and coderidge , justice , was of the same opinion , and man the secondary , said it was the daily practice there , and so if the principall be in execution , he cannot take the bail. haukinson versus sandilands , jacobi . the plaintiff brought an action of debt upon an obligation for forty pounds against the defendant , who demanded oyer of the condition , and afterwards pleads that the obligation was made and delivered by him , and one m. who is still living at d , and demands judgement of the writ , to which the plaintiff demnrres the words of the obligation , were noverint universi , &c. adquam solucionem bene & fideliter faciend . obligamus nos vel quemlibet nostrum . and whether this was , should be accounted a writ , obligation , or severall , at the election of the plaintiffe , was the question , and ger. cook was of opinion , that it should be brought against both , and his onely reason was , that at most the plaintiffe had but an election , for the word ( vel ) could not be taken for ( et ) as it is h. . . a grant made to j. s. at j. d. is void , and h. . grant to two , to them , or to the heires of one of them , is not good , and then if he had only an election , he hath made that already , for the defendant hath pleaded and averred , that is , was made by two , joyntly by the appearance , whereof he hath agreed to take it accordingly , but yelverton argued in this manner , that although the words in an obligation be not proper and apt , yet if they be substantiall , it is enough , and therefore h. . . utrumque nostrum is adjudged good , and the r. . . ad quam quidem solucionem obligamus nos , & singulos nostrum , is adjudged severall and joint and for a direct authority he cited h. . . where an obligation was , nos , vel alterum nostrum , and the plaintiff brought severall precipes , and adjudged good , that he might make it severall or joynt , and all the judges were clearly of an opinion , that the action was well brought , for as it hath been said , the plaintiff had his election , and that election would be said to be executed by the joynt delivery , for there was no cause to make election untill the bond was perfected , and therefore though one delivers it at one time , and the other at another , yet the plaintiff may have a caput precipe , if he will , for the election is in bringing the action , and the words , ( vel ) and ( & ) are but synonimaes , and champions case , plowden . ( & ) is taken for ( vel ) and the e. . . in mallories case , ( u ) is taken for ( and ) therefore they gave judgement that the defendant should answer over . freeman versus shield , trin. jacobi , and adjudged pasch . jacobi . freeman brought an action of debt upon an obligation against shield , and proved oyer of the condition , which was that , if the defendant should stand to the award , and arbitrement of j. s. that then , &c. the defendant pleads that the arbitrators , awarded , that whereas there was no suit in the chancery , depending against the plaintiff for divers matters , that the plaintiff should be acquitted of that suit , and of all the matters contained in the same bill , and the defendant further alledges , that he did not make any prosecution of the said bill , but that the plaintiff stands acquitted thereof , the plaintiff replies that the defendant after the said award such a year and day , did exhibit a new bill which did contain the same matter which the first bill had , and set forth at large , both the bills , by which it appeared to the court that it was so , to which plea the defendant demurres , and the cause of the demurrer onely was , because the plaintiff had pleaded , that the defendant had exhibited a new bill , but had not alledged any processe taken forth upon the same bill , and if this be a breach of the award is the question , govin was for the plaintiff , and he was of opinion , that it was a breach for the words were quod staret acquietatus , and to be acquitted is not onely to be intended of an actuall disturbance or molestation , but if the party be put in fright , or is liable to any processe , it is a breach , ed. . . a condition to save one harmlesse , if a capias be awarded against him , although it be not executed , yet it is a forfeiture of the bond , nay , though it was never delivered to the sheriff , for otherwise the plaintiff should be in continuall care & trouble , for fear lest the defendant should do it , and so the defendant may dally with him a long time , which shal be mischievous , & therefore it may be resembled to h. . where if a man sell a thing with warranty to pay for it at a day to come , if the thing sold be corrupt , the party may have his action of deceit , before the day of payment , because it is in the others power to bring his action , and so it is in the defendants power to serve the plaintiff with processe when he pleases , and therefore it is a breach , coventry for the defendant ; first because it is no such process as can prejudice , for neither goods nor body shall be taken , and therefore is not like the cases before cited . and secondly , it is not such a process as our law respects or regards , for a bill is but as a petition : haughton justice was of the same opinion with the rest of the judges , but adjourned untill hill. . jac. and an exception taken , because the defendant had not answered the declaration , for the condition is that he should be acquitted , & the defendant pleaded that he hath been acquitted ; and cook was of opinion that it was good , and pasch . . jac. judgement was given for the defendant by the whole court. kipping versus swain , trin. . jacobi . the plaintiff brought an action of debt against swain , upon the statute of e. . for not setting forth of tithes , and declares , whereas the plaintiff being proprietor of the rectory of b. in the county of , &c. for the term of seven years , and that the defendant was occupier of lands within the same parish for six moneths by a devise made the tenth of march , anno decimo jacobi . and that the defendant . aug. the year aforesaid did cut his corn there growing ; and that the tenth of september then next following the defendant being ( subdit . dicti domini regis ) carried away the said corn , not setting out the tenth according to the statute ; and upon a nil debet pleaded it was found for the plaintiff , and it was moved in arrest of judgement , first , because of the plaintiffs own shewing he had no cause of action against the defendant , for the interest of the defendant in the land was determined , before the tithes were carried away ; but the court were of opinion , that it was no exception , for although his interest in the land was gone , yet he remained owner of the corn ; for if corn is cut , although a stranger take them away before severance , yet an action will lie against him upon this statute , for otherwise the intent of the statute may easily be defeated . another exception was taken , because the plaintiff said , he was ( subdit . dicti domini regis ) which is a fault incurable ; for the statute referrs subdit . to his politick capacity , but dicti goes to his natural and sole capacity ; and so the force of the statute shall be determined by his death ; and for this cause an indictment upon the h. . contra pacem dicti domini , had been severall times reversed ; and of this opinion were three judges , but haughton doubted of it , and so it was adjourned . penniworth versus blawe , trin. . jacobi . the plaintiff brought an action of debt upon an obligation , and prayed oyer of the condition , which was , that he should stand to the arbitrement of j. s. of all suites , quarrels , controversies , and debates , from the beginning of the world untill the making the obligation , so that the award be made in writing , under the hand and seal of n. s. and should be delivered to the parties before such a day , &c. and observe that the sealing and delivery of the obligation was at twelve a clock the first of may : the defendant pleads in barr , that the arbitrators made an award , and did deliver that to the parties above-said , but said further , that in the morning , and before twelve a clock the first of may aforesaid , one debate and controversie did arise between the parties , concerning a trespasse committed by the plaintiff the same morning , of which the defendant gave notice to the arbitrator , before twelve a clock of the said first of may , concerning which trespasse the arbitrator made no award , and therefore pretends the award to be void , and demands judgement ; to which the plaintiff demurrs ; and yelverton being for the plaintiff , that the plea was not any answer to the plaintiff , and therefore judgement ought to be given ; for the plaintiffs action is grounded upon an obligation , as single , and the thing which helps the defendant is the condition indorsed , to stand to the award of s. the which is restrained , so that it be delivered under the hand and seal : and if the defendant will plead the condition against the plaintiff , he must plead it to be performed and executed according to the submission by the arbitrator , for else the bond remaines as single : and so in this case the defendant pleads , that the arbitrator made an award , and that it was delivered by the arbitrator ; but whether it was delivered in writing or under his hand according to the submission is not pleaded , and therefore it is no answer to the plaintiff , for he hath not pleaded an award made according to the condition , and therefore the bond is single . yea cook argued for the defendant , and said , that the plaintiff by the demurrer had confessed that the arbitrator had made no award , as the defendant had pleaded , and then he shal never have judgement : for if it may judicially appear to the court , that the plaintiff had no cause of action he shall never have judgement ; and that the plaintiff ought to have averred , and joyned with a traverse of that the defendant pleaded , to wit , that the arbitrator had made an award , and delivered it in writing under his hand and seal without that , &c. and as to the other matter of the trespasse the same day , and so he might have demanded judgement , for his plea doth but amount to the general issue , that the arbitrators made no award : but yelverton answered , that it could not be pleaded in any other manner then he had pleaded it , because he could not traverse it , because the defendant himself had pleaded , that he made an award : and although the demurrer confesse all matters in deed , yet they are such onely as are well pleaded , as burtons case , . rep. . and also although the award pleaded cannot be intended the same award specified in the condition , yet the plaintiff had good cause of action ; and all the court , fleming being absent , were of opinion , that the plaintiff ought to recover for the reasons before alleadged , but as for that point whether the controversie that grew in the morning should be arbitrated , because there cannot be a fraction of dayes , it was not argued , nor any opinion of the court delivered , onely cook cited e. . . that the arbitrator ought to arbitrate of that , because the condition was of all matters , untill the making the obligation . wheeler versus hayden , trin. . jacobi . w. parson of the church of a. brought an action of debt against the defendant for arrerages of rent , and declared upon a lease made to the defendant for four years , if the plaintiff did so long live , and continue parson , &c. and upon a non demisit pleaded , the jury found an especial verdict , to wit , that the plaintiff had leased it to the defendant for four years , if the plaintiff shall so long live onely ; and whether this verdict was found for the plaintiff or defendant was the question ; and cook serj. seemed that it was found for the plaintiff ; for the main matter was , that he should lease it , if he so long lived ; and the subsequent words are of no effect , because they contained no more then by the law was before spoke of ; for the law sayes , that if he be non-resident , or if he resign , or be deprived , that the lease shall be determined , like to the . ass . . a lease to two , and the longest liver of them , and the e. . . a. a lease to one of land and a house for years , and that the lessee may make good profit of it , this last clause in both is idle ; and dallidge was of the same opinion ; but yelverton against them , for the plaintiff had intituled himself to the action by such a cause ; and if he fail in that it is his folly , and shall not recover ; for the lease upon which he declared had two determinations , the first by death , the second by removing ; and the jury had found the lease onely upon the first determination , and therefore various in substance ; and therefore the jury have found against the plaintiff , as if a lease be made by baron and feme , if they shall so long live & continue married , both of them ought to be found . haughton to the same purpose , for when a parson makes a lease , if he shall so long live , he doth take upon himself , that he will do no act by which the lease shall be determined , but onely by his death , for otherwise an action of covenant will lie against him ; but if the other clause be added , to wit , and shall so long continue parson , then he may resign , or be non-resident without danger , and so there is great difference between the verdict and declaration , and it was adjourned the court , being divided in opinion . dower . mich . . jacobi . dower may be brought as well against the heir himself , as against the committee of the ward : but if an infant be in ward to a lord in chivalry , the dower shall be brought against the guardian in chivalry . if dower be brought against one who is not tenant of the free-hold , the tenant before judgement shall be received , and upon default of the tenant , and after judgement he may falsifie . mich . . jac. dower demanded of the third part of tithes of wooll and lamb in three several townes , and it was demanded of the court , how the sheriff should deliver seisin , and the court held it the best way for the sheriff to deliver the third part of the tenth part , and the third tenth lamb , videlicet , the thirtieth lamb. in dower against the lord morley , the tenant at the day of taking of the inquest after the jury had appeared , and before the jury were sworn made default , and a pety cape was awarded , and the tenant at the day in banck informed the court , that the tenant is but tenant for tenant for life , and that the reversion is in one p. who at the return in banck ought to be received to save his title , and the court appointed him at the return of the pety cape to plead his plea. hih. . jacobi . allen and his wife demandants versus walter in dower of a free-hold in munden magna , munden parva & b. the sheriff returned pleg . de prosequend , j. d. r. r. and the names of the summoners j. d. & r. f. and after the summons made , and by the space of fourteen dayes and more , before the return of the said writ , at the most usual church door of munden magna , where part of the tenements lay upon the . of october , being the lords day , immediately after sermon ended in that church , he publikely proclaimed all and singular things contained in that writ to be proclaimed according to the form of the statute in that behalf made and provided , l. p. ar. vic. and exception was taken to the return , because proclamation was not made at the doors of the churches where the lands lay , and the court held it not necessary ; but it was sufficient to make proclamation at any of the churches ; but the return was insufficient , because he said , that he had caused to be proclaimed all and singular in that writ contained , and sayes not what ; and the demandant released his default upon the grand cape . clefold versus carr. the tenant in dower before the value inquired of , and damages found , brought a writ of error , and by the opinion of the whole court a writ of error would not lie , for the judgement is not perfect untill the value be inquired upon . the demand in dower was of the third part of two messuages in three parts to be divided , and the judgement was to recover seisin of the third part of the tenements aforesaid , with the appurtenances , to hold to him in severally by meets and bounds , and adjudged naught ; because they are tenants in common , and the judgement ought to be , to hold to him together , and in common ; but if it had been in three parts divided , it had been good . actions in ejectment . allen versus nash , hill. . jacobi , rotulo . the plaintiff brought an ejectione firme , and a special verdict upon a surrender of copy-hold land , which was to the use of the second son for life , after the death of the tenant and his heirs , and it was adjudged not to be good in a surrender ; for though it be good in a will , yet implication is not good in a surrender ; and in copy-hold cases a surrender to the use , &c. this no use but an explanation how the land shall go ; if the lord grant the land in other manner then i appoint , it is void , if there be found joynt-tenants , and one surrender to the use of his will , it was a breach of the joinder , and the will good . eyer versus bannaster , trîn . . jacobi , rotulo . the plaintiff brought an ejectione firme , and declared upon a lease made by ed. kynaston ; to which the defendant pleads not guilty , and the plaintiff alleadges a challenge , that the wife of the sheriff is cosin to the plaintiff , and desires a venire facias , to the coroners , and the defendant denied it , and so a venire was made to the sheriff ; and at the assises the defendant challenges the array , because the pannell was arrayed by the sheriff , who married the daughter of the wife of the lessor ; and note , the first challenge was made after the issue joyned , and at the assises the defendant challenged as above , and a demurrer to it , and hutton held , that a challenge could not be after a challenge , except it were for some cause that did arise after the challenge made , and that the party ought to rely upon one cause of challenge , though he had many causes , & observe the defendant could not challenge the array untill the assises , but husband held that a challenge might be upon a challenge , but this challenge was adjudged naught by all the judges . hill versus scale , trin. jacobi rotulo . . the plaintiff brought an ejectione firmae , and declares upon a demise made to the plaintiff by j. c. bearing date , the first of january , anno . and sealed and delivered the twelfth of january following , to hold from christmasse , then last past , for two years , the jury found a speciall verdict , and found the lease , and a letter of atturney to execute the lease , in this manner , that the lessor was seised of the land in fee , and being so seised , he made , signed , and sealed an indenture of a demise of the said tenements , and found it in haec verba , this indenture , &c. and they further found that the lessor , the said fifth day of january , did not deliver the said indenture of demise to the plaintiff as his deed , but that the lessor the said fifth day of january , by his writing , bearing date the same day , gave full power and authority to one c. to enter into all the premises and to take possession thereof in the name of the lessor , and after possession so taken , to deliver the said indenture of demise to the plaintiff , upon any part of the premises in the name of the lessor , and find the letter of atturney in haec verba , to all &c. whereas , i the said j. c. by my indenture of lease , bearing date with these presents , have demised , granted , and to farm let , &c. for and during the term of two years , &c. and they further find , that the said c. such a day , as atturney to the lessor , by vertue of that writing did enter into the tenements aforesaid , and took possession thereof to the use of the lessor , and immediately after possession so taken , the said c. did deliver the said indenture of demise upon the tenements , as the lessors deed to the plaintiff , to have , &c. and the doubt was because the lessor in the letter of attorney , and said that whereas he had demised , and if it were a demise , then the letter of attorney was idle , but notwithstanding the court gave judgement for the plaintiff . weeks versus mesey , an ejectione firmae brought against two , and one of them was an estranger , and was in the house , and the principall would not appear , and the other appeared , and pleaded non informat . and the court was acquainted with the proceedings , and the plaintiff prayed an habere facias possessionem , and the court told the plaintiff , that by that writ and recovery , he could not remove him that had right , when a lease is made to bring an ejectment of land in divers mens hands , then they must enter into one of the parcells and leave one in that place , and then must he go unto another and leave one there , and so of the rest , and then after he hath made the last entry there , he sealeth , and delivereth the lease , and then those men that were left there , must come out of the land , and this is a good executing of the lease , and pasch , the ninth of james , the court held that an ejectment would not ly of common pasture , or of sheep-gate . beamont versus cook , trin. jacobi . an exception taken in ejectment , because the originall was teste the very same day that the ejectment was made and adjudged good by the whole court , and one goodhall brought an originall in ejectment against hill , and three others , and the plaintiff counts against three of the defendants , and no simulcum against the fourth , and this matter was moved in arrest of judgement . and the judgement was stayed by the whole court. coronder , versus clerk , hill. jacobi rotulo , . action upon an ejectment brought , the jury found it specially upon a devise , the words of the will were to my right heires males and posterity of my name , part and part like , the question was , who should have the land , and the court held , the land must go to the heire , at the common law , and not according to the words of the will , because they cannot consist with the grounds of law , a will must be construed in all parts , the brother cannot have it by the devise , because he is not heir , and the daughters cannot , for they are not heirs and posterity , and therefore , neither of them could have it , because they are not heirs and posterity , because they that take it must be heir and posterity , for the intent of a will must be certain and agreeable to law , and there must not an intent out of the words of the will , be sought out , and the whole court held , that the plaintiff was barred . young , versus radford , pasch . jacobi rotulo . action upon an ejectment brought , and the jury found a speciall verdict , and the case was , that elizabeth rudford , was possessed of a house full thirty years , and she took a husband , the husband and wife morgage the term , the wife dies , and the husband redeems the land , and marries another wife , and then dies , and makes his wife executrix , and she maries the lessor . the defendant takes administration of the goods of the first woman , and it was held void , and judgement for the plaintiff . pettison , versus reel , pasch . ▪ jacobi , rotulo , . an ejectment brought , and triall , and verdict for the plaintiff , and exception taken in arrest of judgement to the venire facias , because this word juratum was omitted , for the writ was posuerunt se in illam , and omitted the word juratum , and this was amended by the court. when a title is to be tryed upon an ejectment , and a lease to be executed by letter of attorney , the course is this , that the lessor do seal the lease onely , and the letter of attorney , and deliver the letter of attorney , but not the lease , for the attorney must deliver that upon the land : and upon an ejectruent brought of lands in two villages , of a house and forty acres of land in , a. and b. and a speciall entry in the land , adjoyning to the house to wit , the putting in of a horse , which was drove out of the land by the defendant , and this was adjudged a good entry for the land in both the villages , by the opinion of the whole court. arden versus mich. jacobi . the plaintiff delivers , that whereas such a day and year at curdworth in the said county did demise to the plaintiff two acres of land , with the appurtenances in the parish of c. and the venire facias was of the parish of c. and after a verdict , exception was taken because it was not of curdworth , but it was adjudged good by the court , and to prove the lease made lanheston an attorney swear , that the lessor sealed the lease , and subscribed it , but did not deliver it , and by word gave authority to one w. to enter into the land , and to deliver the lease upon the land to the plaintiff as his deed , and by that authority he entred , and delivered the lease as his deed to the plaintiff , and it was adjudged good . marsh versus sparry , hill. jacobi rotulo , . an ejectment brought ex dimissione g. w. and the originall was made ex divisione , and after a triall , serjeant hitchaw moved the court , that the originall might be amended , and make ex dimissione , and the court granted it , and the cursitor was ordered to amend it , and also in the end of the originall , it was written barnabiam , and it should have been barnabas , and that also was ordered to be amended by the court. cradock versus jones , trin. jacobi . rotulo . an ejectment brought upon a demise , made by cotton knight , the defendant pleads not guilty , and a challenge to the sheriff , and prayes a venire facias to the coroners , because the sheriff is cozen to the plaintiff , and shews how , and because the defendant did not deny it , a venire facias was awarded to the coroners , and after a verdict , it was alledged in arrest of judgement , because it was not a principall challenge , and a venire facias de novo , awarded to the sheriff . parkin versus parkin , hill jacobi rotulo . and ejectment brought and verdict , and after a triall , exception taken to pleading , of a deed inrolled , the action was brought in the county of york , and pleaded thus , ut infra , sex menses tunc proximos sequent . coram milite uno justic . &c. in west-riding , com. eborum , ad pacem , &c. conservand . assign . & w. c. clerico pacis ibidem debito , modo de recor. irrotulat . and exception was , because the inrollment was not made according to the form of the statute , because it did not appear , that the justice before whom the deed was inrolled , was a justice of the peace , of the county of york , but of the west-riding , and it was not alledged , that the land did ly in the west-riding , and note that the defendants plea in barr , was insufficient , because the defendant did not confesse , nor avoid the count , and the plaintif by his replication doth not shew any title to the land , because it did not passe by the inrollment , and so he hath lost his suit , and although the barr be insufficient , yet notwitstanding , the plaintif shall not recover . greenely versus passy , hill iacobi rotulo , . an ejectment brought , the defendant pleads not guilty , and the jury found it specially , that one woodhouse was seised of land in fee , and did infeof the husband and wife , to have and to hold to the said husband and wife , and the heirs of their bodies between them to be begotten , by vertue of which feofment , the husband and wife were seised of the whole land in fee tail , to wit , &c. the husband infeofs the youngest sonne of the land in fee , and afterwards the husband dies and the woman survives , and afterwards she dies before any entry by her made into the land , and further find the lessor to be the eldest son , of their bodies , and that the younger son infeoffed the defendant ; and afterwards the eldest sonne entred into the land , and made the lease in the declaration , and whether the entry of the eldest son was lawfull , or no , was the question upon the statute of h. . that fines or feoffements made by the husband , &c. during coverture be or make any discontinuance , &c. or be hurtfull to the said wife , or her heirs , and sir edward cook held , that the heir is not barred of his entry by the statute . pacy versus knollis , trin. . iacobi rotulo . an ejectment brought , the defendant pleaded not guilty , and the jury found it specially , and the question is upon the words of the will , to wit , and i give to katharine my wife , all the profits of my houses and lands lying and being in the parish of billing , and l. at a certain street there called broke-street , and the jury found that there was not any village or hamlet in the said county called billing , and that the land supposed to be devised lieth in byrling-street ; no mans verbal averment shall be taken , or admitted , to be contrary to the will , which is expresly set out in the will. if i have two thomas to my sonnes , and i give it to thomas , it shall be intended my youngest son , because my eldest son should have it by discent , the will was held by all the court to be good . hellam versus ley , trin. . jacobi , rotulo . a special verdict in an ejectione firme , the question was upon the words of the will , which were , that her husband had given all to her , and nothing from her , and whether these words imply a consent , and so an agreement to the devise of the husband or no. and foster , warburton , and walmsley , that it was an assent ; but sir edward cook was of a contrary opinion : and note she was made sole executrix , and she proved the will , and justice foster held it to be an assent in law. the property of goods cannot be in obayance , they must be in the executor , administrator , or ordinary ; and warburton held , that the words made an assent , and said , that when the bond is delivered to one to the use of another , untill he dis-assent , it is his deed , but when he dis-assenteth , then it is not his deed , ab initio : if a lease be given by will to divers , and made one of them his executor , in this case the executor must make his special claime , else he must have it as executor : and sir edward cook held , that the general entry , and proof of the will is no assent , she must first have it as an executor , before she can have it as a legatee , a legacy is waiveable ; but if the law work it in me whether i will or no , then i cannot waive it , and therefore he held she should enter specially . rolles versus mason , hill. . jacobi , rotulo . an ejectment brought , and the question grew upon two customes , one was that the copy-holder for life may name to the lord of the mannour who should be his successor in the copy-hold : and the other that the copy-holder for life may cut down all the trees of wrong upon the customary land : and the third question was , whether the second lessee of the mannour may take advantage of the pretended forfeiture for cutting down the trees , by the law a copy-holder shall have , house-boot , free-boot , and hedge-boot , and common of turbary to burn in his house , but he cannot sell them . a copy-holder by custome may name his successor , and if the lord refuse to admit him , the homage may set ▪ a reasonable fine , and so he shall be admitted . the lessee of the mannour may take advantage of the forfeiture , but in this case it is no forfeiture , and the copy-holder may cut downe trees , for he hath a greater estate then a sole tenant for life , because he shall name his successor : aprescription goeth to one man , and a custome to many ; and judgement for the defendant . mason versus strecher & alios , pasch . . jacobi , rotulo . an ejectment brought for the mannour of p. it was held by the court , that the consent of a servant in the absence of him who is possessed of the terme shall not out his master of the possession , because the servant hath no interest in the land. cramporne versus freshwater pach jacobi rotulo . an action of debt brought upon an ejectment , the plaintiff was non-suit upon his own evidence because he declared upon a devise made for three years , and it was confessed by the plaintiff that the lands were copy-hold land , and that the plaintiff had not license to demise them for three years neither could he prove ; that by any custome he could demise them for three years without a license , and so the lessor was taken for a disseisor by the opinion of the court. caffe versus randall trin. . jac. rotulo . an ejectment brought against randall and his wife , the ejectment made by the wife and not guilty , pleaded and tried ; and it was moved in arrest of judgment , because the issue was pleaded in this manner , et dicunt quod ipsi in nullo sunt culpabiles , &c. and the ejectment was made by the woman alone , and ought to have been that she was not guilty , and upon examination of the plea rol and record of nisi prius it appeared to the court that the plea roll was right but the record of nisi prius mistaken , but serjeant barker said that at the time when the record of nisi prius was tried , the plea roll agreed with the record , and was afterwards amended . and waller the prothonotary confessed that he amended the plea rol , as upon his private examination of the roll but without notice that there was a record sent down to try that issue , and therefore the court ordered that the record of nisi prius should be amended according to the plea roll which was done accordingly . pats versus chitty trin. . iac. rotulo . vel . an action of ejectment brought , the defendant pleads a concord with satisfaction in bar , the plaintiff demurs , and it was held by winch and foster a good plea because the action is not only in the realty for he recovers damages and possession which are meer chattells . secondly , because the defendant pleads the satisfaction as in discharge of that action and all others and ten shillings for rests , warburton of the same opinion , and he vouched the like case satisfaction is good . plea in a quare impedit wherein a man recovers the presentation : and cook said , that in all actions wherein money or damages are recoverable as well wherein the defendant might wage his law as wherein he might not , it is a good plea pasc . . jacobi rotulo . eden and blake , but in matters where one free-hold or inheritance is recoverable , concord is no barr and in dower recompence in other lands or rent is no barr. but by petition in chancery , but rent issuing out of the same land demanded is a good barr ; and in all actions quare vi & armis wherein process of outlary lies by the common law , concord or an award is a good barr , h. . title barr satisfaction in trespass by an estranger is a good barr although it be without notice of the trespassor by the opinion of the whole court. craddock versus iones trin. iacobi rotulo . an ejectment brought , and declares upon a lease made by w. cotton knight , the defendant pleads not guilty , and makes a challenge and praies a venire facias to the coroners because the sheriff is cozen to the lessors wife which is not a principle challenge but by favour , and after a triall and verdict it was amended in arrest of the judgment because it was mistried and barker vouched a case in the exchequer chamber , in el. upon a writ of error , between higgins , and spicer , upon a venire facias , awarded in the like manner , and it was adjudged to be mistryed , and it was then agreed that misconveyance of process is , where one writ is awarded in place of another to an officer which of right ought to execute that process , and he returns it , this is helped after a verdict by the statute . but if a writ be awarded to an officer who ought not to execute that process , and he returns it , this is a mistriall and not helped by the statute and warburton said that dyer folio . to the contrary is not law , two tenements in common joyne in a lease for years to bring an ejectment and declare that whereas they did demise the tenements and it was held nought for it is a severall lease of moities and if they had declared , that one of them had demised one moity and the other another moity it had been good . wilson versus rich , pasch . . eliz. the husband and wife joyn in a lease by indenture to a. rendring rent , and this is for years , and make a letter of attorney to seal and deliver the lease upon the land , which is done accordingly ; a. brings an ejectmentand declares upon a demise made by the husband and wife , and upon evidence to the jury ruled by popham , fenner , and yelverton , that the lease did not maintain the declaration , for a woman covert could not make a letter of attorney , to deliver a lease upon the land , although rent was reserved by the lease , and so the warrant of attorney is meerly void , and the lease is onely the lease of the husband , which is not made good by the declaration , by the opinion of the court. stretton versus cush , pasch . . jacobi . j. l. leased a house for fourscore years , in which lease there is one condition , that the lessee his executors and assignes should keep and maintain the house in reparation , and if upon lawfull warning given by the lessor , his heires and assignes , &c. to enter ; the lessee for fourscore years leases the house to a. for thirty years ; and a. leases it to wilmore for fifteen years ; the assignee of the reversion came to the house , and seeing it in decay gave warning to wilmore then possessed of that house to repair it , which was not done within six moneths , by reason whereof the assignee entred for the condition broken , and upon a not guilty pleaded , the matter before recited was found by a special verdict , and adjudged against sir william wade the assignee of the reversion , for the warning given to wilmore to repair , who was but an under tenant , was not good , for he was not assignee of the terme , nor had but a pety interest under the grand lease , upon whom no attorney could be made for the rent , nor any action of waste brought against him , for there wanted the immediate privity : and in this case there is a difference to be taken between a rent and a condition for reparations , for the condition is meerly collateral to the land , and meerly personal , and therfore warning is not of necessity to be given at the house , but notice of reparations ought to be given to the person of the lessee , who had the grand interest . and a difference is to be taken between a time certain in which a thing is to be done , and a time incertain ; for in the case of rent reserved at a day certain , demand thereof must be made upon the land onely , because the land is the debtor ; for popham said , that if the lessor should come and demand his rent , and there should meet with j. s. a stranger , and should say to j. s. pay me my rent , this is no good demand of the rent , having mistaken the person who is chargeable with it : but in this case one general demand of rent , without reference to any person who is not chargeable , is good . and he was of opinion , that if a man lease land , rendring rent for a year , whensoever the lessor should demand it , in this case the lessor come and demand it before the end of the year , his demand upon the land is not good , except the lessee be there also ; for the time being incertain , when the lessor will demand it , he ought to give notice to the lessee of it . and if the lessor come to the lessee in person , and demands the rent , yet it is not sufficient ; for although notice is to be given the lessee in person , yet the land is the debtor , and therefore the law ties the lessee to the land , as to the place in which he shall be paid ; but if the lessor stay nntill the eud of the year , then the lessee at his peril ought to attend upon the land to pay it , for the end of the year is time of payment prescribed by the law which was granted , and judgement was given for the plaintiff . clerk versus sydenham , pasch . . jacobi . an ejectment brought by the plaintiff of a lease made of land by p. and b. and not guilty pleaded : and the evidence of the defendants part was by reason of a lease of the land in question , made by the abbot of cleeve , before the dissolution to w. d. and jo. his wife , and f. their daughter for their lives by indenture ; and by the same indenture the abbot covenants , grants , and confirmes to the three lessees , that the land should remain to the assignee of the survivor of them for ninety years ; fr. survived , and took to husband one hill , who the eliz. grant their estate for life to j. s. and all their interest in the remainder , and all their power for all the term , and this by mean assignements came to the defendant : and whether any interest passed in remaindor by the lease of the abbot was the question ; and by all the five judges it was held to be a good interest in possibility , and to be reduced into a certainty in the person of the survivor ; as where land is given to three and the right heirs of the survivor , this is a good limitation of the inheritance presently , but it is in expectancy untill the survivor be known , for then the fee is executed in him . and popham vouched a case in his experience , eliz. in which serjeant baker was of counsel , and it was a lease was made to husband and wife for life , and for forty years to the survivor of them , the husband and wife joyn in grant of this interest : and although it be certain , one of them shall survive , yet the grant is void , because at the time of the grant there was not any interest , but onely a possibility in either of them : and although in the case in question the remainder is not limited to any of the three lessees , but to the assignee of the survivor ; yet the court was of opinion , that this was not a bare nomination in the survivor to appoint what person he pleased , but a terme and an interest ; and popham took this difference , if a lease be made to j. s. for life , and after his death to the executors and assignes of j. s. this is an interest in j. s. to dispose of it , but if it had been limited to j. s. for life , and afterwards to the executors and assignes of j. d. here this is a bare power in j. d. and his executors , because they are not parties or privies to the first interest which was agreed , and it was also agreed , that whether it was an interest or a word of nomination , it was all saved to the party by the statute of h. . of monasteries , which gives the houses dissolved to the king , but in the same degree and qualitie as the abbot had them . and the abbot was charged with the power given by himself , and so was the king. which mark . vvanto versus willingsby , pasch . . jacobi . the bishop of exceter in the time of h. . by his deed gives land , &c. to nicho : turner , and by bill his cousin in consideration of service done by turner , and for other considerations him moving to them , and the heirs of their bodies , and dyes . they have issue jo. and william , n. t. dies , and sybill marries clap. and they alien the land to iohn in fee ; sybill and iohn leavie a fine to walther in fee of the land. and afterwards sybill infeoffes william her younger son , who infeoffes willinghby , io : enters , and leaseth to walther and willingby for the tryall of his title , seals a lease to ward , who declares of so many acres in sutton cofeild . and the jury upon a not guilty pleaded foundby the verdict that the bishop gave the tenements aforesaid by his deed , the tenor of which deed follows , &c. and by the deed it appeared that the lands did lye in little sutton within the lordship of sutton cofeild . and notwithstanding the plaintiffe shall recover . for first it was held not to be any joynture within the statute of h. . for it is not any such gift as is intended by the statute , for the bishop was not any ancestor of the husband , and the husband took nothing by that , but it was a voluntary recompence given by the bishop in reward of the service passed . and the statute intended a valuable confideration . and also the bishop might well intend it for the advancement of the woman , who appeared to be cozen to the bishop . and tanfeild held if the woman were a done● within the statute of h. she could be but for a moyetie , for the gift was before the marriage , and then they took by moyeties . and the baron dying , first the woman came not to any part by the husband , but by the course of law as survivour . but quaere of this conceit , for the other judges did not allow it . and secondly , they held that the fine of io. the elder son of sybill levied to walther destroyed the entry of io. and of walther . for although in truth the fine passed nothing but by conclusion , yet io. the son , and walther his conusee shall be estopped to claim any thing by way of forfeiture against that fine on the womans part , then any title accruing after the fine . for they shall not have any new right , but io : the son upon whom the land was intayled is barred by the fine . thirdly , although upon view of the deed made by the bishop the land which by the declaration is layed to be in sutton cofeild , by the deed appears to be in little sutton , yet this is helped by the verdict , by which it is found expresly that the bishop gave the lands within written , and therefore being so precisely found the deed is not materiall . which mark . knap versus peir iewelch pasc . . jacobi . an ejectment brought for lands in wiccombe , which were the deans and chapters of chichester , and in this case it was agreed by the whole court , that if it be a corporation by prescription , it is sufficient to name them by that name they are called . and the court held , that if a man demands rent upon the land to avoid a lease upon a condition , the demand ought to be made in the most open place upon the land ; the dean and chapter of chichester made a lease to one raunce , the lessee of the defendant of lands in wiccombe , rendring rent payable at the cathedrall church of chichester , upon such a condition , it was agreed by the whole court , that the demand ought to be made in the cathedrall church of chichester , although it was of the land leased . and the demand ought to be made at the setting of the sun the last instant of that day , and when he made his demand , he ought to stand still , and not walk up and down , for the law did not allow of walking demands . as pipham said , and he ought to make a formall demand . and because those whom the dean and chapter did send to make the demand of rent said , bear witnesse , we are come hither to demand and receive such rent , it was held by the court , that such a demand was not good . and they held the demand ought to be made at that part of the church where the greatest and most common going in is . and in this case it was said by popham , that if a man make a lease to one for yeers to commence at a day to come , and then he lease to another for yeers rendring rent upon a condition to commence presently . and he enter . and the first lease commence , and he enter the rent , and condition reserved upon the second lease is suspended . a man leases for years rendring rent , & after he leaseth to another to commence at a day to come , and the first lessee attorns , the second shall not have the rent reserved upon the first lease by popham ; but he doubted of it . and popham and tanfeild held , none contradicting , that the letter of attorney made by the dean and chapter to demand their rent was not good , because the letter of attorney was to make a general demand on any part of the land , which the dean and chapter had leased . and that ought to have been speciall onely for that land. and secondly , it was to demand rent of any person to whom they had made a lease . and the letter of attorney ought to be particular , and not generall of any person . tompson versus collier , mich. . jacobi . the plaintiffe declares upon a lease of ejectment made by robinson and stone of one messuage , and fourty acres of land , in the parish of stone in the countie of stafford . the defendant imparled tryall another terme , and then pleads that within the parish of stone there were three villages , a. b. and c. and because the plaintiffe hath not shewed in which of the villages the land he demanded judgement of the bill , &c. and the plaintiffe demurred upon this plea ; and adjudged for the plaintiffe . for first , after an imparlance the defendant cannot plead in abatement of the bill , for he hath admitted of it to be good by his entring into defence , and by his imparlance . and secondly , the matter of his plea is not good , because the defendant hath not shewed in which of the villages the house and fourty acres of land did lye ; and that he ought to have done . for where a man pleads in abatement , he alwayes ought to give to the plaintiffe a letter writ with mark . and the whole court held that this plea was not in barr , but that he should answer over . and williams justice took this difference , that when a man demurrs upon a plea in abatement ; and when he goes to issue upon it , for if they discend to issue upon such a plea , and it be found against the defendant , it is peremptory , and he shall loose the land : but upon demurrer it is not peremptory , but onely to answer over . which mark . vvorkley versus granger , mic. . jacobi . an ejectment brought for two houses , and certain lands , &c. and upon a speciall verdict , the case was one he● : wels and his wife nere seised of a parcel of land to them , and the heirs of their bodies begotten , as for the joynture of the wife , the remainder to the heirs of the husband in fee , the husband bargains , and sels the land to stamp and his heirs in fee. and afterwards the husband and one winter leavie a fine of that land to another who grants that land back again to winter for one month , the remainder to the husband and wife , and the heire of their bodies to be begotten , the remainder to the husband and his heirs . the husband dyes , the wife survives , and makes a lease to the defendant for ninety nine yeers , if she should so long live ; the woman dyes , and the plaintiffe claims under the bargainee : and in this case two points were debated . first , what estate passed to the bargainee , and digges of lincolnes inne , who argued for the plaintiffe , that the bargainee had a fee simple determinable which issued out of both the estates as it was held by periam in alton woods case . and he said that the proclamations upon the fine are but a repetition of the fine , as it is held in bendlones rep : put in the case of fines in cooks . rep. and see pinslees case , for then for the same cause the issue in tayl is bound , although the fine be levied by the husband alone by the statute of the . h. . and h. . because he cannot claim but as heir to the father , as well as to the mother , and therefore his conveyance is bound : and see . e ▪ dyd . . husband and wife tenants in speciall tayl . the husband is attainted of treason , and executed having issue , the woman dyes , the issue shall never have the land. and if husband and wife tenants in speciall tayl ; and the husband levies a fine to his own use , and devises the land to his wife for life which remainded over rendring rent ; the husband dyes , the woman enters , pays the rent , and dyes , the issue is barred for two causes : first by the fine which had barred his conveyance of the intayl : secondly , by the remitter waived by the mother . eli : dyer . see h. . assise thorp and tirrels case . secondly , the lease made by the woman was determined by her death , and it was said that the woman had not any qualitie of an estate tayl , but onely she might take the profits during her life within the statute of h. . and when she dyes the estate is denised . see austens case . doctor wyat tenant in tail leased for yeers , and dyed without issue , the lease was determined . see first of eliz : title executors . and h. . dyer . where a bishop made a lease for yeers , and afterwards makes another lease to one of the lessees , &c. and fleming held that if the woman survived as under tenant in speciall tayl , and made a lease for . yeers , it is out of the statute of h. . and so it was adjudged in wattes and kings case . lane versus alexander hill , . jaco . the plaintiffe declares in ejectment upon a lease made to him by mary planten for three yeers , the defendant saies , &c. that the land is copihold land of the mannor of h. in norff. whereof the queen eliz : was seised in fee , and long time before the lessor had any thing there in court such a day , that j. s. her steward at the court , &c. granted the land to the defendant by copie in fee , according to the custome , and so justifies his entry upon the plaintiffe . the plaintiffe replies and saies , that long time before the copy granted to the defendant , to wit , at a court of the mannor held such a day , the . eliz : the queen by copy , &c. granted the land to the lessor for life according to , the custome , by force whereof he entred , and made a lease to the plaintiffe . the defendant by way of rejoynder maintained his barr , and traverses : with that the queen at the court of the mannor by j. s. her steward , such a day , &c. granted the land to the lessor and upon this the plaintiffe demurred in law generally . and yelverton moved that the traverse was good in this case upon the day , and steward : and the difference is where the act done may indifferently be supposed to be done on the one day or the other , there the day is not traversable as in the case of a deed made such a day ; there the day of the deed is not traversable , for it passes by the livery , and not by the deed. and the livery is the substance , and the day but a bundance . e. . and the law is the same if the day in trespasse wherein the day is not traversable . for although it be done upon another day it is not materiall . but when a man makes his title by an especiall kinde of conveyance , as in this case , the plaintiffe makes his title by one copy , there all that is concerned in the copy is materiall , and the party cannot depart from it , for he claims not the land by any other copy but by that which is pleaded , as is in the h. . . where an action is brought for taking his servant , and counts that he by deed retained with him his servant the monday in one week , in such a case it is a good plea for the defendant to say , that the servant was retained by him such a day , after without that that the plaintiffe did retain him the monday . and the law seems to be concerning letters patents , wherein the day and place are traversable , being the speciall conveyance of the party from which he cannot depart . and also it seems that although the day in the principall case be traversed , yet the statute of eliz : of demurrers aids it , it being but a generall demurrer , and the day being onely matter of form . but the whole court were of opinion , that the day was not traversable in this case . for the queen granting an ancienter copy to the plaintiffs lessor then to the defendant , and the traverse should have been without this , that the queen did grant in manner and form , &c. to the plaintiffs lessor , and the case is the same in the letters patents , for there the traverse should be without this , that the queen granted in manner and form , &c. and the day and place shall not come into the traverse . but justice fennor was of a contrary opinion , for the reason delivered by yelverton before , and he also , and the lord cheif justice held it to be holpen by the statute of eliz : for it is but matter of form . for if the jury finde a prior grant of the queen to the plaintiffs lessor , although it be at another court it is sufficient ; and so by consequence the day is not materiall in substance , which mark . but williams justice , and the rest held the traverse to be naught , for by that the jury should be bound to finde the copy such a day by such a steward which ought not to be , and that it was matter of substance not helped by the statute of eliz. darby versus bois hill. . jacobi . an ejectment brought for an house in london , and upon not guilty pleaded , the jury found a speciall verdict ; and the case was tenant in tail of divers messuages in london , january , eliz : bargains and sels the said houses to j. s. and delivers the deed from off the land the . of january the same yeer . indentures of covenants were made , to the intent to have a perfect recovery suffered of those houses ; and the ninth of january after a writ of right is sued in london for those messuages returnable at a day to come . and the tenth of january the same yeer the tenant in tail makes livery and seisin to j. s. of one of those houses in the name of all . and the other messuages were in lease for yeers , and the lessees did not atturn . and the question was if the messuages passed by the bargain and sale , or by the livery . and it was adjudged that they passed by the bargain and sale . and yelverton took a difference between severall conveyances both of them executory , and where one of them is executed presently , as in sir rowland heywoods case , where divers lands were given , granted , leased , bargained , and sold to divers for yeers ; the lessees were at election whether they would take by the bargain and sale upon the statute of h . or by the demise at the common law. but otherwise it is if one be executed at first , for then the other comes too late , as it is in this case ; for by the very delivery of the bargains and sale , the land by the custome of london passes without inrollment , for london is excepted , and this custome was found by the verdict . and therefore it being executed , and the conveyance being made perfect by the delivery of the deed without any other circumstances , the livery of sesin comes too late , for it is made to him that had the inheritance of the messuage at that time . and the possession executed hinders the possession executory , for if a bargain and sale be made of land , and before inrollment the bargain takes a deed of the said land , this hinders the inrollment , because the taking of the livery did destroy the use which passed by the bargain and sale which was granted by the court. and another reason was given , because it appeared that the intent of the parties was to have the land passe by the bargain and sale ; because it was to make a perfect tenant to the precipe , as appears by the subsequent acts , as the indentures covenant , and the bringing the writ of right &c. all which will be made frustrate , if the livery of seisin shall be effectuall : and when an act is indifferent , it shall be taken most neer to the parties intents that may be if a man hath a mannor , to which an advowson is appendant , and makes a deed of the mannor with the appurtenances ; and delivers the deed , but doth not make livery of seisin , yet now although the deed in it self was sufficient to passe the advowson , yet because the party did not intend to passe it in posse , but as appurtenant if the mannor will not passe , no more shall the advowson passe alone , as it was agreed , eliz : in andrews case . which mark . and the whole court gave judgment accordingly , that the defendant who claimed under the bargain & sale , should enjoy the land. challoner versus thomas , mich. . jacobi . a writ of error was brought upon a judgement given in ejectment in the cour● of carmarthen , and yelverton assigned the error , because the ejectment was brought de aquae cursu , called lothar in l. and declares upon a lease made by d. de quidam rivulo & aquae cursu : and by the opinion of the whole court the judgement was reversed , for rivulut se● aque cursus lye not in demand , nor doth a precipe lye of it : nor can livery and seisin be made of it , for it cannot be given in possession , but as it appears by h. . . the action ought to be of so many acres of land covered with water , but an ejectment will well lye by , if a stang for a precipe lies of them , and a woman shall be indowed of the third part of them , as it is . e. . but if the land under the water or river do not pertain to the plaintiffe , but the river onely , then upon a disturbance his remedy is onely by action upon the case , upon any diversion of it , and not otherwise . which observe . vvilson versus woddell , mich. . jacobi . the grand-father of the plaintiffe in an ejectment being a copy holder in fee , made a surrender thereof to l : woddell in fee , who surrendred it to the use of margery i. for life , who is admitted , &c. but l : woddell himself never was admitted . the grandfather and father dye , the son who is plaintiffe was admitted , and enters upon the land : margery being then in possession , and the defendant then living with her as a servant in those tenements , and this was the speciall verdict , and judgment was given for the plaintiffe . and the court was of an opinion , that the defendant was found to be a sufficient trespassor , and ejector , though he be but a servant to the pretended owner of the land , because the verdict found that the defendant did there dwell with margery . and in such case he had the true title and had made his entry , might well bring his action against master or servant at his election . and perhaps the master might withdraw himself that he could not be arrested . and secondly , it was adjudged , that the surrender of j. s. of a copy-hold is not of any effect , untill j. s. be admitted tenant . and if i. s. before admittance surrender to a stranger who is admitted , that that admittance is nothing worth to the estranger . for j. s. had nothing himself , and so he would passe nothing , and the admittance of his grantee shall not by implication be taken to be the admittance of himself ; for the admittance ought to be of a tenant certainly known to the steward , and entred in a roll by him ; and it was held , that the right and possession remained still in him that made the surrender , and that is descended to his heir , who was the plaintiffe . and they took a difference between an heir , to whom the copy descended , for he may surrender before admittance , and it shall be good ; because he is by course of the law , foe the custome that makes him heir to the estate casts the possession of his ancestors upon him : but a stranger to whom a copy hold is surrendred , hath nothing before admittance because he is a purchasor . and a copy made to him , upon which he is admitted , is his evidence by the custome , and before that he is not a customary tenant , and so he could not transfer any thing to another , and adjudged so according to eliz : alderman dixies case . bedell versus lull , pasch . . jacobi . the plaintiffe declares in ejectment upon a lease made by eliz : james of certain lands . the defendant pleads that before eliz : had any thing , one martin james was seised in fee of it , and had issue henry james , and dyed seised , by reason whereof it discended to h. j. as son , and heir ; and that eliz : entred , and was seised by abatement , and made the lease to the plaintiffe : and that afterwards the defendant as servant to h : james , and by his command , &c. the plaintiffe by way of replication confesses the seisen of m. james , and that he being so seised by his last will in writing , devised the said land to eliz : in fee , and afterwards dyed seised by reason whereof she entred by force of the devise , and made the lease to the plaintiffe , and traverse without , that eliz : was seised by abatement in manner and form , &c. and the defendant demurrs upon this replication , and shewed for cause that the traverse was not good , and adjudged for the defendant : for the plaintiffe by his replication need not both confesse , & avoid , and traverse the abatement too , for the plaintiffe made a title to his lease by the will of his ancestor , and that proved that he entred legally , and not by abatement , as the defendant had supposed . and then to take a traverse over makes the replication vitious . for a traverse shall not be taken , but where the thing traversed is issuable . and here the devise is onely the title issuable . and it was also held that the traverse was not good as to the manner of it , for he should not have traversed without that , that he was seised by abatement , but it ought to have been without that , that he did abate ; and also if the plaintiffe had minded to have fully answered the defendant , he ought to have took his traverse in the very same words the defendant had pleaded it against him , to wit , without that , that he did enter , and was seised by abatement , which observe . the case concerned sir h. james to whom the defendant was tenant . saunders versus cottington , mich. . jac. an ejectment brought of two houses , but the bill was onely for one , and it was filed . and the defendant by his paper book pleaded to both messuages ; and the roll in court , and the record of nisi prius were two houses . and there was a verdict for the plaintiffe , and judgement entred accordingly . and a writ of error was brought by the defendant , and before the record was removed , the plaintiffe moved the court that the bill upon the file might be amended , and made two messuages . and because the defendant had pleaded to messuages in his answer in paper , and that the roll and record were according , it was resolved by the whole court , that the bill upon the file should be amended , and made two messuages ; for that bill which made mention onely of one house could not be the ground of all the proceedings afterwards ; but it was as if no bill had been filed , and therefore it should be supplied , and so had been severall times before the record was renewed . which observe . the plaintiffe declared in ejectment upon a lease of an house , acres of land , acres of meadow , acres of pasture , by the name of one messuage , and ten acres of meadow be it more or lesse , and upon not guilty pleaded the plaintiffe had a verdict , but moved in arrest of judgement , and judgement was stayed . for by the plaintiffs own shewing in his declaration , he could not have execution of the number of acres found by the verdict ; for in the lease there is but ten acres demised . and these words more or lesse could not in judgment of law be extended to thirty or fourty acres ; for it is impossible by common intendment , and the rather because the land demanded by the declaration is of another nature then that which is mentioned in the per nomen , &c. for that is only of meadow , and the declaration is of arrable and pasture . moore versus hawkins , mich. . jacobi . in ejectment after issue joyned upon a not guilty pleaded , the cause came to be tried before brook and yelverton , judges of assize in the county of oxford , the plaintiffe had declared of divers messuages , and divers acres of land lying in three villages in the said county . and at the tryall before the jury was sworn , walter the defendants counsell put in a plea , that after the last continuance , to wit , such a day in trinity terme before the day of assize , to wit , the . of july , the assizes being held at oxford , the of july the plaintiffe had entred into such a close by name containing eight acres , parcell of the premises specified in the declaration , &c. and this plea was received by the judges of assize . and afterward in mich. terme yelverton and walter being of counsell with the defendant , desired that they might amend their plea , to wit , to put in the very village where the land did lye , into which the entry of the plaintiffe was , because it was but matter of form , and not of substance : and they were of opinion , that the tryall of that new lssue ought to be of all the three villages named in the declaration . and yelverton justice having asked the opinions of all the judges in serjeants inne fleetstreet , related their opinions in the court , the record of nisi prius was returned into the exchequer , to wit , that it was in the discretion of the justices of assize to accept such a plea as is before , and that it might be well allowed , as the h. . is , and it shall stay the verdict . but otherwise it is of a protection , for although they allow a protection , yet the judges may take the verdict , de bene esse ; yet he said that in the . e ▪ . in a precipe quod reddat , a release was pleaded at the tryal , and the jury found the verdict , but that was the indiscretion of the judges to allow it , when it should not have been allowed . and all the said judges held as he related , that the plaintiffe could not have a replication to that plea at the tryall ; for the justices have no power either to accept a replication upon that plea , or to try it , but onely to return it as parcell of the record of nisi prius . and they held also that the plea being put in the countrey , could not be amended in adding the town in certain in which the close did lye ; for it was matter of substance . and that the court of exchequer where the record was , would not award the venire facias of all the three villages named in the record , if it did not appear judicially to them that the close did extend in all the villages ; and it doth not appear for parcell , if the premises doth not necessarily extend to all the villages , but may well be , and so presumed in one village onely , and therefore it is matter of substance . and the judges had not power after their commission determined to amend the plea. davis versus pardy , mich. . jacobi . the plaintiffe declared of a lease made by one cristmas the sixth of may , anno . of one messuage , &c. in d. by reason whereof the plaintiffe entered , and was possessed , untill the defendant afterwards , to wit , . of the same month , anno sexto supradicto , did eject him . and not guilty being pleaded , a verdict was found against the plaintiffe . and yelverton moved in arrest of judgement to save costs , that the declaration was insufficient . for that action was grounded upon two things : first , upon the lease : secondly , upon the ejectment , and both those ought to concur one after the other . and in this case the ejectment is supposed to be one year before the lease made , for the lease is made anno . and the ejectment supposed to be done anno . . and therefore the declaration naught . and yelverton vouched the case between powre and hawkins , anno septimo , termino pasch . where the plaintiffe declared upon the lease of edw. ewer , . april , anno sexto , and laid the ejectment to be . april , anno . and the court held then , that the declaration was naught , yet in the case in question , the declaration was adjudged good . and the word sexto to be void , for the day of the ejectment being the . of the same month of may , it cannot be intended but to be the same year , in which the lease is supposed to be made , by the opinion of the whole court. aylet versus chippin , mich. . jacobi . the plaintiffe declares upon a lease made by john aylet , for one year , of certain land in c. in the county of e. by vertue whereof he entred , and was possessed , untill the defendant did eject him . the defendant pleads that the copihold land is parcell of the mannor of d. &c. of which one jo : aylet the lessors father was seised in fee , according to the custome , and that he made a surrendor thereof to the use of his will , and by his will devised the land in question to john the lessor , and h. aylet his sons , and to their heirs males of their bodies , and willed that they should not enter untill their severall ages of years . and further willed that w. b. and h. b. his executors should have the lands to perform his will , untill his said sons jo : and h. came to their severall ages , of one and twenty years , &c. to which plea the plaintiffe replies , and confesses the will , but shews further how that such a day and year before the lease , jo : his lessor attained to his full age of one and twenty years , and entred , and made a lease thereof to him , &c. to which plea the defendant demurred , and adjudged for the plaintiffe . for although the estate to jo : and h. precede in words , and the devise to the executors insues in construction , yet the estate to io : executors , precedes in possession . and is as if he should have demised the land , untill his sons io : and h. should attain to their severall ages of one and twenty years . and afterwards to them and their heirs males , &c. to be enjoyed in possession at ther severall ages , so that the executors have onely a limited estate , determinable in time , when either son severally should attain to his full age , for his part . for so it appears , the devisors intent was that either son might enter , when he attained to the age of one and twenty years . and although it was objected by justice williams , that the two brothers are joyntenants by the will , and if one should enter when he comes to his full age , the other brother being under age , that would destroy the intent of the devise , for then they should not take joyntly , but the court as to that said , that the entry of him that attained to his full age , doth not destroy the juncture , but that they are joyntenants notwithstanding . for that entry in the intent of the devisor , was only as to th● taking of the the profits , and the possession , and not as to the estate in joyntenancy , and this is proved by h. . devise . where a devise was to foure in fee , and that one of them should have all during his life , and this was adjudged good , and it was as to the taking of the profits onely , which observe by the whole court but williams . rice versus haruiston pasch . . jacobi . the plaintiffe declares of a lease made by jo. bull , &c. the defendant pleads that the land is copihold land , parcel of the mannor of , &c. whereof the king was seised , and is seised , and that the king by his steward such a day granted the land in question to him in fee , to hold at will according to the custome of the mannor , by vertue whereof he was admitted , and entred , and was seised untill the lessor entred upon him , and outed him , and made a lease to the plaintiffe , and then he entred , and did eject him , &c. the plaintiffe replies , that long before the king had any thing in the mannor , queen eliz. was thereof seised in fee in right of her crown , and before the ejectment supposed by the defendant , by her steward at such a court did grant the land in question , by copy to him in fee , to hold at will according to the custome of the mannor , who was admitted , and entred , and further shewed the descent of the mannor to the king , and how the lesser entred , and made a lease to the plaintiffe , who entred , and was thereof possessed , untill the defendant did eject him . upon which plea the defendant did demurr , because he supposed that the plaintiffe ought to traverse the grant alledged by the copy of the defendant in his barr. but the court held the replication good ; for the plaintiffe had confessed , and avoided the defendant by a former copy granted by queen eliz : under whom the king that now is claimed , and so the plaintiffe need not traverse the grant to the defendant , but such a traverse would make the plea vitious , for which see hilliais case , . rep. and h. . dotknis case , e. . dyer . and brooks title confesse , and avoid , for as no man can have a lease for years without assignment , no more can a man have a copy without grant made in court. which observe . shecomb versus hawkins , pasc . jacobi . the case was in an especial verdict in ejectment , that one mrs. luttrel tenant in fee of the mannor of l. leavied a fine to the use of her self for life , and after death to the use of her eldest son in tayl , &c. with power to her self at any time , to make leases for one and twenty years , and before the lease in being expired , she made another lease to b. for one and twenty years to commence after the determination of the first lease . and as to the third part of the land she made a lease of that for one and twenty years after the death of one carn , who in truth never had any estate in the land , and afterwards she dyes , the first lease expires , and i : the son enters , and makes a lease to the plaintiffe , and the defendant claims under b. the lessee , and adjudged for the plaintiffe , for by such a power she could not make a lease to comence at a day to come , but it ought to be a lease in possession , and not in interest to comence in future nor in reversion , after another estate ended , but the law will judge upon the generall power to make leases without saying such ought to be leases in possession , for if upon such power she might make lease upon lease she might by infinite leases detain those in reversion or remainder out of the possession for ever , which is against the intent of the parties , and against reason , and adjudged accordingly : trin. eliz. earle of sussex case , rep. . and justice vvilliams said , that when he was a serjeant , it was so adjudged in the common pleas in the earle of essex case , and judgement by the the whole court. brasier versus beal , trin. , jacobi . upon an especial verdict in ejectment , the case was , that a copy-holder in fee of the mannour of b. in the county of oxford , by license of the lord lease the land in question for sixty years to m. if he should live so long , rendring rent with a condition of re-entry , the copy holder surrenders to the lessor of the plaintiff in fee , who demands the rent upon the land , which being not paid he entred , and made a lease to the plaintif , & without any argument the court seemed to be of opinion that the entry of the lessor was not congeable , for copy-hold land is not within the statute of h. . of conditions , nor the lessor such an assignee that the statute intends , for at the common law a copy-holders estate is but an estate at will , & custome hath onely fixed his estate to continue , which custome goes not to such collateral things , as entries upon condition , for such an assignee of a copy-holder being onely in by custome is not privy to the lease made by the first copy-holder , nor onely by him , but may plead his estate immediately under the lord , by the opinion of the whole court. odingsall versus jackson , mich. . jac. in ejectment the declaration was , that the defendants intraverunt , and that he did eject , expulse , and amove in the singular number , and after a verdict for the plaintiff upon not guilty pleaded , the defendant shewed this matter to the court in arrest of judgement , for the declaration is incertain in that point , because it cannot be known which of the defendants did eject the plaintiff ; for by his own shewing it appears that the ejectment was but against one , and upon that declaration the jury could not finde all the defendants guilty , for by the plaintiffs supposal one onely did eject him , but the court gave judgement for the plaintiff , that the declaration should be amended in that point , for it was but the clerks fault , and so it was , and upon an evidence in an ejectment by the lessees of cresset and smith : yelverton said , that if a man comes into a copy-hold tertiously , and is admitted by the lord , and afterwards he makes a lease for three lives , which is a forfeiture of his estate , yet if he that hath the pure right to the copy-hold release to the wrong-doer , that it is good ; for untill the lord enter he is tenant in fait , and if the rever as copy-holder , rep. . but walter seemed of another opinion , and therefore quaere what benefit he shall have by the release . in an ejectment the plaintiff declared of an ejectment of decem acris pisar . and upon the general issue it was found for the plaintiff , and it was moved in arrest of judgement , because the plaintiff had declared de decem acris pisar . which is not good , for pease are not known by the acre , and therefore he should have declared de decem acris tene pisis seminaris , as if a man will demand land covered with water , he must say , decem acras terrae aqua co opertas , but the whole court held it good , for in a common acceptance ten acres of pease , or ten acres sowed with pease is all one , and so is the opinion of catesby , e. . . and the man the secondary said , that so it had been adjudged in the exchequer chamber upon a writ of error . meerton versus orib , trin. . jacobi , orib brought an ejectment against meerton in the common pleas , jacobi , of a cole-mine in durham in the county palatine there ; the defendant pleaded not guilty , and it was found for the plaintiff before the justices itinerantes there , upon which judgement the defendant brought a writ of error , and assigned for errour , that the plaintif appeared by an attourney , whereas it ought to have been by guardian , being under age : and upon an issue that he was of full age was tryed at durham , and found that he was within age ; but the plaintif had license to discontinue his writ of errour , and brought a new writ of errour , quod coram nobis residat : and declared that m. was inhabiting at westminster in the county of middlesex ; and being within age , appeared by an attorney ; the defendant in the writ of errour confessed that he was inhabiting at westminster , but that he was at full age at the time : and upon the tryall in middlesex , it was found that m. was under age : and it was alleadged in arrest of judgement , and it depended a long time that it was a mistryall ; and the doubt and question was onely , whether the tryall at westminster in this case was good : and davenport , and yelverton were of opinion that it was not good , for the errour assigned was done at durham , and because they there have the best notice of it , it ought to have been there tryed : as if errour be in a record , it shall be tryed where the record is , h. . . secondly , this is a reall action , in which the land shall be recovered , and therefore though the issue be upon a collaterall matter , yet it shall be tryed where the land lyes , because it concernes the realty , but if it had concerned the person onely , it had been otherwise ; and this difference is taken by montham , h. . . and therefore if a feoffment be made upon payment , &c. if upon an assise brought , the defendant plead payment in another place , yet it shall be tryed where the land lyes : and so likewise if the issue should be , which is the eldest son , although they alleadge their births in severall counties , yet it shall be tryed where the land lyes ; and so in that case a release of all his right was pleaded against him , and he pleaded that he was within age , and borne in another county , yet it shall be tryed where the land lyes , and so adjudged , h. . . and e. . . b. h. . . nay though the espousals be alleadged to be in another county , yet it shall be tryed where the land lyes , and adjudged , h. . . and davenport inferrs from h. . . a grand cape against one , he comes and pleads that he was within age at the time of the first cape , which shall be tryed where the land lyes : and another exception was taken , because the venire facias was not well awarded , for it was directed to the sheriff of middlesex , that he should cause to come twelve , coram nobis apud westmonasterium , which is not good , for that court follows the king , and may be removed to any place , and therefore it ought to have been vbicunque fuerimus in anglia , but all the judges , fleming being absent , after mature deliberation held the tryall at middlesex good , for they took this difference in their answer to the rule layd downe , that what concernes the realty , it shall be tryed where the land lyes , for when nonage or the birth are alleadged to intitle one to the land demanded , as if in an assise the tenant pleads a discontinuance , the demandant sayes he was within age at the time ; or to debarr another of land , that he was borne before marriage in these cases , because the inheritance of the land depends upon it , although they be alleadged in another place , yet they shall be tryed where the land lyes , h. . and so it is h. . . b. to be intended , but if nonage or birth be pleaded as matter dehors , and not to the disabling of the title to the land , but to another purpose , as here it is to the person , because he could not appeare by attorney , in this case it shall be tryed where the infancy is alleadged : as if in a formedon in the remainder , the tenant pleads nonage in the plaintiff , and prayes that the plea may stay untill his full age , if issue be taken upon it , it shall be tryed in the place where it is alleadged . and as to the exception to the venire facias the roll is right , which warrants the writ , and therefore they held it was but the writers fault , and should be amended : and doddridge and cook held the triall good : if infancy be alledged , the triall shall be by inspection during his nonage , as it is e. . account , . and h. . . . ass . . and e. . . and the . rep. f. . but if his age upon inspection remains doubtfull , then the judges may swear the party and examine witnesses . and e. . . and e. . . but if the infant come to full age , it shall be tried by the countrey , h. . and they took this difference in what place it should be tried , for if the action be reall , it shall be tried where the land lies , as it is e. . . e. . . assis . . e. . . h. . . and if both places be in one county , then the venire facias shall be of both , e. . . h. . . but if nonage be alledged in a personall action , the triall shall be where the writ is brought , . h. . . in debt the defendant pleaded infancy , and that he was born in such a place , yet the venire facias was awarded of that place where the action was brought , and h. . . prisot was of the same opinion , and the law is the same , when it concerns the person as in misnomer , or that he is not the same person , and so in the case in question , although the action be brought in one place , and the nonage pleaded in another county , yet it shall be tried where the action was brought , and therefore the action being brought in midd. the triall of midd. is good , for a writ of error , is of the nature of an originall which is personall , and they held the venire facias should be amended , being but a matter of form , and that it was no mistriall , it being awarded at a right place , and likewise the will is right which warrants it , and therefore it is but a misprision , and no mistriall , and the venire facias shall be amended according to the will , and judgement was given for the plaintiff in the writ of error . formedon . brigham versus godwin , the formedon did abate , by the death of one of the demandants , and upon a new writ brought by journes accounts , the tenant was essoined , and it was moved by the demanded , that the essoin should be quashed , because the tenant was essoined upon the first writ , but the essoin was allowed by the court , but it was held by the court , that if the tenant had the view upon the first writ , he should never have the view again , at the common law we might have had a new essoin upon view , as often as he brings a new writ , and husband held , that if by the common law it is to be granted , the statute doth not abridge it , two views do not ly upon one writ at the common law , and if this shall be accounted but one writ , the view lieth not , but in this case the tenant did relinquish the view , because he had day to plead . nevill versus nevil , mich. jac. rotulo . formedon in le discender , the writ was generall , and the count was upon a feofment made after the statute of uses , and a speciall verdict , whether the deed warrant the count , the verdict , is whether upon the whole matter the said a. n. gave the moity of the third part of the mannor , &c. for default of issue of the bodies of either the said g. and d. to the use of either of them surviving , and of the heires males of his body to be begotten or no , the jury are wholly ignorant , the writ was to the use of g. and d. and of the heirs males of the bodies of the said g. and d. lawfully to be begotten , and for default of such issue male of the body of either of them , then to the use of either of them , having issue male of his body lawfully begotten , and for default of such issue male of both the bodies of the said g. & d. or either of them lawfully to be begotten , then to the use , &c. by deed an implication cannot be intended , if there be not apt words , otherwise , it is in a will , for this is but a gift to a man and his issue , for this gift is but to both of them for life , and severall inheritances . bishop & al. versus cossen , trin. jac. rotulo . in formedon , the tenant pleaded a warranty , and pretends that it was collaterall warrantry , where in truth it was a lineall warranty , and it was held naught , because the warranty was in law a lineall warranty ; the case was , that land was givenby feoffment made to the use of the feoffer , for life , remainder in tail , tenant for life dies , tenant in tail had issue a son and two daughters , and the father and son joyn in a feoffment with warranty , and after the father and son die without issue , and the daughters bring a formedon , and this is a lineall warranty . pit versus staple , trin jac. rotulo . formedon in le discender against three which plead non-tenure , and issue thereupon joyned , and found specially , that two of them were lessees for life , the remainder to the third person , and whether the three were tenants as is supposed by the writ , was the question , and the better opinion was , that it was found for the demandant , for the tenants should have pleaded severall tenancy , and then the demandant might maintain his writ , but by this generall non-tenure , if any be tenant it is sufficient , but in some cases , the precipe may be brought against one who is not tenant , as a morgagor or morgagee . comes leicester versus comit. clanriccard . in formedon upon a judgement given in part for the demandant , and part for the tenant , the tenant brought a writ of error , and had a supersedeas upon it , and afterwards the demandant prosecuted a writ of seisin , and delivered it to the sheriff , and he executed the writ , and immediately afterwards , the tenant delivered the supersedeas to the sheriff , and the tenant moved the court , and prayed a writ of restitution , and it was granted him , because the tenant had done his indeavour , and had not delayed the prosecuting the writ of error . comes clanriccard & francisca uxor . ejus demandants , versus r. s. milit . vicecomit . lyple for three messuages , &c. which r. late earl of essex , and frances late wife of the said earl , by fine in the court of the lady elizabeth , late queen of england , before her then justices at westminster , levied and gave to william gerrard esquire , and f. mills gentleman , and the heires of the said w. for ever , to the use of elizabeth sydney , daughter and heir of p. s. milir . and the heirs of the body of the said e. comming , and for default of such issue , to the use of the said f. then wife of the said earl , and the heirs of the said fr. and which after the death of the said eliz. ought to revert to the said fr. by form of the gift aforesaid , and by force of the statute in such case provided , because the said eliz. died without heir of her body . the tenant pleaded in abatement of the writ , because the writ ought to revert to the woman alone , and it should have been to the husband and wife , and upon a demurrer , judgement was , that he should answer over , the writ may be either to revert to the husband and wife , or to the wife alone , and herein the tenant vouch two vouches , and one is essoined , and an idem dies given to the other , and serjeant harris demanded of the court if he should fourcher by essoin , because the statute of westminster , the first is , that tenants , parceners , or joint tenants , shall not fourcher in essoin , therefore they two should not fourcher by essoin , but the court held , that before appearance it could not appear to the court , whether they were tenants or not , and therefore before appearance they shall have severall essoins , and westminster , the first is expounded by gloucester the tenth , which is , that two tenants shall not fourcher after appearance ▪ and at the day of the adjournment of the last essoin , the tenant was essoined , and such essoin was allowed and adjudged by the whole court , and the reason hereof seemed to some to be , because the tenant might be informed of the vouchee , that he vouched was the same person or no , for he might be onother person , for if he should be an estranger , and demand the place , and the demandant could not hold him to the warranty , the demandant should loose his land , and they held that upon severall processe , to wit upon the view and upon the summons to warranty , which are divers processes , the tenant ought to be essoined , and the court held that this essoin was at the common law , if the tenant and the vouchee at the day given to the tenant , and the vouchee make default , judgement shall be given against the tenant , to wit a petty cape , and nothing against the vouchee . shotwell versus corderoy , in formedon the tenant prayes in aid , ●nd the prayee in aid and tenant vouch , and the vouchee was essoined and adjourned , and at that day the attorney of the tenant , without the prayer in aid cast an essoin ; and an idem dies given the prayee in aid , and it was quashed ; for they shall not have severall essoines but joynt essoines . a formedon brought of lands in a. b. & c. the tenant pleads a fine of all by the name of the mannour and tenements in a. & b. and it was objected that he said nothing to the land in c. but the courtheld that by the name of the mannor the land in all the villages would pass : and the demandant may if he will plead as to the land in c. that it was not comprised in the fine . hill. . jacobi , rotulo . vel . formedon in the discender the writ was general that j. l. gave to t. l. and the heirs males of his body , upon the body of d. v. widow lawfully to be begotten , which d. the said t. afterwards took to wife , and which after the death of the said t. &c. son and heir male of the body of the said t. upon the body of the said d. lawfully begotten to the said j. l. younger son and heir of the said j. l. son of the said t. ought to descend by form of the gift aforesaid , &c. and whereof he saith , that the said t. was seised , &c. and eliz. of the said tenements did infeoff the plaintiff in fee to the use of the said t. l. and his heirs , &c. and note , in the count no mention made of the marriage . if a gift be made in tail to d. and his heirs males : the remainder to a. in tail , d. discontinues in the life of a. and d. dies without issue , and the heir of a. brought his writ , as the immediate gift to a. his ancestor , who never was seised in his life , and for that cause the writ was naught ; but if a. had been seised of the land , then it had not been necessary to have shewed the first gift to d. by the opinion of the whole court. actions upon the statute of hue and cry. needham versus inhabitant . hundredi de stoak , trin. . jac. rotulo . action brought upon the statute of hue and cry by the servant who was robbed in his own name , and part of the goods were his masters , and part his own proper goods , and found guilty as to his own goods , and a special verdict , as to the goods of his master ; and judgement for the plaintiff . constable versus inhabitant ▪ in dimid . hundred . de vvalsham in comitat. essex , trin. . jacobi , rotulo . . the action wabrought for a robbery , the defendant is found guilty , and it was alleadged in arrest of judgement , that the action would not lie , because it was not brought against the whole hundred : and it was answered on the plaintiffs behalf , that the half hundred is a hundred by it self ; and the court held , the writ should have been brought against them in this manner , inhabitantes in hundredo de w. called the half hundred of waltham ; but the writ was held good ; for the writis , & so shall be intended to be brought against the men inhabiting in the half hundred of w. & judgement for the plaintif ; & in a special verdict , the jury found that the robbery was done upon the sunday , and it was held in the kings bench , that the hundred was liable . norris versus inhabitantes in hundredo de g. hill. . jacobi , rotulo . and the plaintiff declares upon a robbery done the ninth day of october , an. jacobi . and the originall bears teste the ninth of october jacobi , and after a verdict , serjeant harvey moved to stay the judgement , because the writ was not brought within one year after the robbery done , according to the forme of the statute of eliz. and the court held it a good exception . camblyn versus hundredum de tendring , trin. . jacobi , rotulo . the plaintiff in his declaration had mistaken to alleadge the very day of the robbery , for he shewed the robbery to be committed in october , where in truth it was committed in september ; and the court was moved , that the record which was taken out for triall , but never put in , might be amended , for the notice given to the hundred , as the record is , would appear to be before the robbery , and they granted that it should be amended . actions in partition . the process in partition are summons , attachment , and distress , and the process are returnable from fifteen dayes to fifteen dayes ; and if the writ be brought against two or more , several essoines will lie , but no view , and the sheriff upon the distress is compellable to return the value of the land from the teste of the original untill the return thereof : and if the writ be against two or more de●e●●iants , and onely one appears , the plaintiff cannot declare against him , untill the residue of the defendants appear : and partition lies by the statute of h. . cap. . between joint-tenants , tenants in common , tenants for life or for years , but at the common law partition was onely between coparceners , his petit. is no plea in partition , and in this action there are two judgements , the first is , that partition shall be made , and if the plaintiff die after the first jugement , and before the second judgement , the writ shall not abate , but his heir shall have a scire facias against the defendants , to shew cause why partition should be made , and a writ of partition will not lie of the view of frank pledges ; and the death of one of the defendants abates the writ . and note , the plaintiff may have a general writ , but a special count : and if the defendant confess part , and plead quod non tenet insimul & pro indiviso , for the residue the plaintiff may have judgement upon the confession , and a writ to make partition upon the confession before the triall , and afterwards try the issue for the residue , or else he may respit his judgement upon the confession untill the issue be tried , but this is dangerous ; for if the plaintiff be non-suit at the assise , then the whole writ will abate : and if the sheriff return the tenant summoned , when in truth he was not , an action of deceit lies not , but an action upon the case , because the plaintiff shall not recover the land by default , and you shall never have a writ of partition against one , where he cannot have one against the other ; thirteen men joyn in a purchase of a mannour , the conveyance was of the moity to one of them in fee , and the other moity to the other twelve men in fee , the twelve make a feoffment to one , of twelve several tenements , and land , and that feoffee makes twelve several feoffments to those twelve men , now the thirteenth man which had the other moity bringeth one writt of partition against them all , pretending that they held insimul & pro indiviso , and by the opinion of the whole court it would not lie , but he ought to have brought several writs , and mich. . jacobi . in partition , because both of them are in possession , he that is not prohibited may cut down all the trees and no estrepment will lie . cocks versus combstoks . the plaintiff declares that one a. was seised in fee , and demised for years to j. and l. and to the plaintiff for term of life : and one of them demised to one of the defendants for years ; the defendant as to part pleads , that he did not demise ; and the other pleads non est informat . and a demurrer to the plea of non demisit , because it is but argumentative , quod non tenet insimul , and it was adjudged a naughty plea , a writ of error lies in partition upon the first judgement , before the writ be returned . mill versus glemham . the defendant pleads , that he before the purchasing of this writ , had brought a writ of partition for the same land against the plaintiff , which yet depends , and demands judgment if the plaintiffs writ were brought . and the court held , that the writ last brought is well brought ; for if the first plaintiff will not proceed upon his writ , and the defendant shall confess the action , yet the defendant cannot sue a writ to make partition upon that plaintiffs writ , and therefore it is reasonable that the defendant in the first action may sue out a writ to make partition , and that the defendants plea is naught , and the last writ is well prosecuted . actions upon quare impedit . the process in this action , are summons , attachment , and distress , peremptory by the statute of marlborough , cap. . the sheriff must summon the defendant by good summoners , and return their names upon the original writ , and not return common summoners , as john doo , and richard roo ; for a writ of deceit lyeth in this writ , if the summons were not made indeed ; the writs hereupon are returned from . days to . days . the summons upon the first writ may either be made at the church door to the person of the defendant . and although a nihil be returned upon the first summons , attachment , and distress ; yet if the defendant make default upon the distress , a writ shall goe to the bishop upon the title made by the plaintiff : but at the common law a distress infinite did lie , and no writ to the bishop before the appearance of the defendant ; but now this is taken away by the statute of marlborough , cap. . a writ of journes accompts lieth upon the death of the testator , and summons and severance if one of the plaintiffs will not sue . the judgment in a quare impedit , is to recover the presentment , and the value of the church for half a year , if the plaintiff remove the clerk : and if he do not remove the clerk , then the value of the church by two years , and the value shall be levied by fifa or elegit , and not by capias ad satisfaciend . for that no capias lay before the appearance upon the original . four things are to be enquired on in a quare impedit ; the first is , whether the church be full or no ; the second is , if it be full , of whose presentment ; thirdly , whether the six moneths be past from the time it became void ; fourthly , the value of the church by the year . if a quare impedit be brought against diverse , they shall have severall essoins before appearance ; if the first man be essoined , it must be adjourned for . days , idem dies shall be given to the rest . and at that day another of the defendants may be essoined for . days more , and an idem dies given to the rest , and so of all the rest of the defendants . and if the defendant take not his essoin upon the summons , he may take his essoin upon the attachment . and if the plaintiff do not adjourn the essoin , he shall be nonsuit : and note , that the defendants are not bound to appear after they have had their essoins untill the return of the distress ; for an essoin is no appearance , because it may be cast by a stranger : and note , if the quare impedit be not brought against the incumbent that is presented and admitted into the church , at the time of purchasing the first original writ , that clerk shall never be removed by the plaintiff , although he hath judgment to remove his presentation : but if a stranger be presented , hanging the writ ; if the plaintiff recove , he shall remove him : and therfore the surer way is to bring the writ against the bishop , patron , and incumbent , and then the bishop shall not present by cupps : and if the patron be omitted in the originall , the writ is abateable . if the originall writ be brought against three , one may appear before his companions , and processe shall be continued untill distresse be against the rest , and the plaintiff in the mean time declare against him that appears in the simulcum , and if he that appears pleads non impedivit , the writ shall be awarded to the bishop , but there shall be acesset executio , untill the plea between the plaintiff , and the other defendants be determined , and if the bishop appear and claim nothing but as ordinary , a writ shall issue to the same bishop upon that judgement , but if the bishop makes a title to present , & judgement is given for the plaintiff , then the writ shall issue to the metropolitan of canterbury , if the church be within his province , and so to the metropolitan of york , if it be within his , and upon a judgement by non sum informat . or nihil dicit , the writ , shall go to the arch-bishop , and not the ordinary , if the writ be against him . the death of one of the defendants , hanging the writdoth not abate the writ , nor of one of the plaintiffs parcenors . if the incumbent recover , he shall recover damages , for he cannot have a writ to the bishop , and if a man recover in a quare impedit , and die , his heir shall not have execution , for it is not a reall action , and the plaintiff ought alwayes in his declaration to make mention of the last incumbent , or otherwise his writ shall abate . the husband alone , but in the right of his wife , may without his wife bring a quare impedit , but not an assise , de durraigne presentment , for he shall recover nothing but his presentation and dammages , and if the wife dye hanging the writ , it shall not abate , and a writ did abate because it was that he should permit him to nominate a fit person , where it should be to present , for an advowson in vvales , the writ shall be brought in the next english county , and judgement shall be given in his action for the plaintiffe , at the assises , and deceit lyes as upon a judgement had in this action upon default upon every issue issued , joyned by iury , the iury shall inquire of the points of the writ , and note , admission , plenarty , institution , and ability shall be tried by the ordinaries certificate , but if the issue be whether the church be empty by resignation , or whether the patron have presented his clerk , it shall be tried by the couutrey , and in this writ the defeudant shall neither have his age , nor a protection , nor an essoin , as in the kings service to avoid the cupps . if the king was plaintiff & that the defendant was not summoned by the sheriff , nor attached , nor distrained , and the king had judgement by default , no writ of deceit lies in an assise of durraign , presentment of the writ be brought in midd. at the return of the writ , the assise shall be there arraigned by the serjeants at the barr in french , and the tenant shall be demanded , and if the tenant do not appear , when he is demanded , a resummons shall be awarded , and if upon the resummons , the tenant shall not appear , the assise shall be taken against him by default , and if the tenant appear , he may demand oyer of the writ and the return , and the writ shall be read to him , in haec verba , and the return thereof , and the jury shall have the view , and the tenant may take exception , either to the writ , or to the return thereof , if there be cause , and if there be no cause , then he may pray a day to plead , and if the court give a day , then the jurors that appeared , shall be discharged of their attendance , and ought to appear upon a new processe to be awarded against them , the judgement in this assise is to recover the presentation , dammages , and the value for half a year , and if six moneths be past , the value of the church for two years , by the statute of westminster , ed. . and six of the jury ought to have the view of the church , to the intent that they may put the plaintiff into possession if he recover , and in this writ the plaintiff shall not recover the advowson , but the presentation , the processe in this writ is summons , resummons against the tenant , and summons , habeas corpus , and distresse against the jury , and the processe shall be returned from fifteen dayes , to fieteen dayes , and no essoin nor voucher lies after a resummons . if the king present his clerk , one may have an assise against his clerk only , and not against the king , and at common law none can have an assise , but only the tenant of the freehold , but by the statute , tenant by statute , merchant , or elegit may have an assise , if the incumbent hanging the writ die , and the disturber present again , that writ lyes by journes account upon the first disturbance , and alwayes in a declaration in a quare impedit , you must lay a presentation in him from whom you first derive your title , or under some from whom he claimeth , otherwise it is not good . the bishop cannot grant a sequestration in no case , but where the church is void , but if the clerk be instituted , and inducted , no sequestration lieth . cvppel versus tansie , trin. jac. rot . . quare impedit brought for the church of bleby , the issue was , that there was no such church , and the venire was , de visu de bleby , and the exception was , because it was not of the body of the county , but the exception was salved , because in the declaration it was alledged , that one died at bleby aforesaid , and it was held , that every place alledged , shall be intended to be a town , and by the user of the writ , it is presumed in law to be a parish , and then if there be a parish , and a town , if the venire facias be either of the parish or town , it is good , and it is a good writ to demand manerium de d. with the appurtenances . severall quare impedits may be brought against severall defendants , as one against the bishop , and another against the patron and incumbent , but if j. s. brings a quare impedit against a. b. that a. b. cannot have a writ against the said j. s. if a quare impedit , abates , within the six moneths the plaintiff may bring another writ , but if the plaintiff be non-suit within the six moneths , he cannot have a new writ , because the defendant upon title made , hath a writ to the bishop , and for that cause , a new writ will not lie . comber versus episcopum cicester , & al. trin. jacobi . rotulo . the issue in a quare impedit was , if s. rose by covin between him and comber and rivers , did resign into the hands of the said bishop , if the king hath title of lapse , and a resignation be made by fraud , and one admitted , this shall not take away the kings title , for if the kings title appear upon record , then shall go out a writ for the king , but otherwise it is upon matter of evidence , the king shall loose his presentation , as well by resignation , as by death , where he hath title to present by lapse , and doth not , except the resignation be by fraud , and where an avoidance is by statute , there needeth not notice to be given to the bishop . lord say versus episcopum de peterborrow , mich. jacobi rotulo . the imparlance and the demurrer entred , hill. . jacobi , rotulo . the case was tenant in tail grants the advowson to others , to the use of himself and his wife , and the heirs males of the husband , and the husband dies , and the wife survives , and the lord say marries the woman , and brought the quare impedit , the estate is determined by the death of tenant in tail , and judgement was given for the bishop upon a demurrer , in a quare impedit , if any of the defendants do barr the plaintiff , the action is gone . wallop versus murrey , trin. . jacobi , rotulo . the church became void by resignation and a presentation upon the proviso in the statute of h. . for the kings chaplains . the kings chaplains might have three benefices with license , nay he may give to them as many as he will , being of his own gift , judgement for the plaintiff , if the incumbents plea be found for him , he shall never be removed , although other pleas be found for the plaintiff by the whole court , pasch . . jacobi . if the writ abate for form , you shall never have a writ to the bishop , nor where it appears that you have one title . dominus rex versus emerson . trin. . jac. rot . . the question was , where the king had title to present to a church by reason of ward-ship , and after livery : and before the king doth present under the seal of the court of wards , the king doth present by his letters patents under the great seal of england , and the clerk is admitted , instituted , and inducted , whether the clerk shall be removed or no , and the court held that he should not : and judgment that the plaintiff , nihil capias per breve , he that getteth it first by the court of wards or great seal shall have it , there needeth no recitall in the grant . a common person by his letter or his word may make a presentation to a benefice to the bishop ; the king may present by word if the ordinary be present ; for a presentment is but a commandement ; if the king under any seal present , it is good : it is best to plead the king presented generally , and not to plead it by letters patents , for it is the worst way , and judgment was given for the defendant : and mich. . jacobi , it was held by the whole court , that a presentment under the great seal , to a church parcell of the dutchy of lancaster is good , and needeth not to be under the dutchy seal . cranwell versus lister . the defendant had been parson for three years , and pleaded plenarty generally by six moneths of the presentation of one stiles , a stranger to the writ : and the court held the plea to be nought , because the defendant shewed no title in stiles . needler versus winton and needham , hill. . jacoci , rotulo , . in a quare impedit , the case was , husband and wife , bargain and sell land to the king ; this is as good as a fine being found , if it was delivered to the king , but not entred of record ; if it was made and delivered , it was good : but if the king should before it be delivered , grant it out , it had been void , being not enrolled of record ; for the king in consideration of the bargain and sale of the husband and wife before the deed inrolled , did grant to them the parsonage of horsham : in this case the wife is bound as strong as by fine , and the king made the grant between the date of the deed , and before inrolment . if the kings clerk be once inducted , the k. cannot remove his clerk at the common law , before the statute of . h. . if a quare impedit were brought against the patron and clerk , the patron might confess the action , and so prejudice the clerk ; therefore by the statute the clerk being inducted , he may plead that he is parson impersoned , and so defend himself . glaswick versus williams , hill. . jacobi , rotulo , . a quare impedit brought of the rectory of i. stoneley , one of the tellers in the exchequer , was indebted to queen eliz. and it was found that he was seised of a mannor , ad quod , &c. in fee , and sold it to the plaintiff , who brought a writ to remove the clerk , who was admitted by the presentation of stoneleys wife , to whom a joynture was made by her husband before he was indebted to the queen : and it was pretended that the joynture was void by the statute of 〈…〉 and so was the opinion of the court. if one usurp upon the king , where the king hath title , the clerk cannot be removed , but by a quare impedit : but where the king is to present by laps , and one doth present the king during the life of the clerk , shall remove him : but if he dye , the king hath lost his presentation ; but if the clerk resign , then is it no prejudice to the king. comes bed. versus episcopum exo. trin. jacobi , rotulo , . a quare impedit brought , the bishop and incumbent joyn ; and plead that there is another writ depending against the same bishop only , and pleads it : and that the disturbance in this declaration , and the disturbance in the former declaration , are one and the same disturbance . the plaintiff replies , that the first writ was brought for another disturbance , and traverses without that , that they are one and the same impediment , and the defendant demurs upon that plea , and judgment given for the defendant , that it was a good plea in abatement ; for although the presentation and the disturbance are both of them in question , yet the presentation is the main , and the presentation but as accessory . birkhead versus archiepiscopum eborum & al. pasch . . jacobi rotulo . a quare impedit brought for the vicaridg of leeds in york-shire . the arch-bishop claims nothing but as ordinary , and pleads further , that the church became void the first of january , an. . jacobi , and that six moneths had elapsed ; by reason whereof he collated the . decem. and cook the incumbent pleaded the same plea ; the plaintiff replyed , and confessed the avoidance the first of january : but he further said , that within the six moneths , to wit , the . of may , &c. he presented his clerk , and the arch-bishop refused to admit him : and afterwards , to wit , the . of may , the bishop collated , and the defendant demurred for the doubleness of the plea. if the incumbent plead good matter for his presentation , although the bishop plead insufficiently , that shall not prejudice the clerk : and the defendant took exception to the plaintiffs writ , because it bore-date the . of may , the presentment was . of may , and the refusall of the bishop was the said . of may , and he collated the . of may : and so the writ was brought before the refusall made by the arch-bishop . dominus nuper rex jacobus versus episcopum roffen . & al. hill. . jacobi rotulo , . a quare impedit brought for the church of milton near gravesend in kent , and the issue was , that queen eliz. was seised of the advowson of the said church , &c. and upon tryall of the issue , the jury found it specially ; by which it appeared , that the queen had title but at two turns , and the bishop had one turn : and because it appeared to the court , that the queen had title to that turn , therefore a writ was awarded to the bishop for the king. winchcomb versus episcopum recutor . & al. pasch . . jacobi rotulo , . the case was , that a clerk in salisbury , when the church was full , contracted with the patron , to give him . l. when the church should become void , the then incumbent being a very old and sickly man , and did conclude , that the patron should grant the next avoidance to a friend of his who presented him . and this was held to be a simonaicall contract . the clerk was admitted and continued in all his life , and died , and now the king presented . the qustion was , whether the king , not taking advantage thereof during his life , shall have now the presentment , if he had resigned or made cession , and then another had been presented , and then the first clerk had died , the king then had lost his turn . hubbard and winch held that the king had not lost his presentation , for he never was parson , and that the king after his death shall have his turn : and winchcomb cannot have it , because the church was void when the lease of the mannor was made . and calverts case in the exchequer was remembred ; for the church being void , p. contracts simoniacally with the patron to have the presentation , and upon this corrupt agreement he presents r. who was ignorant of this corrupt agreement , and yet he was removed ; for he shall be punished for the offence of his patron : the admiission upon such corrupt agreement maketh the institution and induction void . avsten versus episcopum london , & al. pasch . . jac. rotulo , . a quare impedit brought for the church of b. he claimed by grant of the next avoidance from sir edward pynchion . the defendant pleads a usurpation by queen mary upon a deprivation and plenarty of her clerk by six months . the plaintiff pleads a recovery by a quare impedit upon a non sum informat . by the patron against the queens clerk. if the king upon usurpation present , and his clerk be in by six moneths ; if the patron bring a quare impedit against the kings clerk , and recover by non sum informat , this shall remit the patron to his ancient right : otherwise it is , if the king do present by title in the case of deprivation , the patron must have six moneths after notice . and judgment was given for the plaintiff . wivel versus episcopum cestrie & al. pasch . . iacobi rotulo , . tenant in tayle and his sonne , grant an advowson , and the father dyeth , the grant is void , and judgment for the plaintif . windham versus episcopum norwic. & al. mich. . jac. rotulo , . a quare imped . brought that the bishop should permit the plaintiff to present , &c. to the church of a. &c. and declares , that whereas e. w. knight , was seised of the mannor of m. with the appurtenances , to which the advowson of the said church , to wit , to present to the said church every first turn , &c. and that the duke of norfolk was seised of the advowson of the said church , to wit , to present to the same every second turn . and that one t. g. was seised of the advowson of the said church , to wit , to present to the same every third turn , &c. and an exception was taken to the declaration , because by the writ the plaintiff claimed the intire advowson , and by his count he claimed but the third turn : and also he did not alledg that he ought to have the first turn ; but the exceptions were over-ruled by the court ; for when the church is void , and it appertains to him to present ; he hath the intire advowson , but otherwise it is , when there are two advowsons in one church , for there the court must be to the moity of the church , or the third part . the late king james against matthew , trin. . jacobi . the king was plaintiff in a writ of error against matthew , upon a judgement given in a quare impedit , against the king in the common pleas , of the church of a. and the question was , whether a double usurpation upon the king doth so put him out of possession , that he shall be forced to his writ of right , and it was adjudged in the common pleas against the opinion of anderson , that he was put to his writ of right ; but a writ of error being brought upon that judgement in the common pleas , the judgement was reversed by the opinion of popham , yelverton , williams , and tamfeild ; fennor , being of a contrary opinion , and they alleadged two reasons ; first , because the right of patronage , and the advowson it self being an inheritance in the crown ; upon record the law will so protect it , that no force or wrong done by a subject , it shall be devested out of the king , for there is a record to intitle him , but there is no matter of record against him , for a presentationby a subject is but matter in fait , the which act although it be mixed with the judicial act of the bishop , to wit , institution , yet it shall not prejudice the king , being onely grounded upon the wrong of a subject : and the second reason was , because no man can shew when the usurpation upon the king should commence and begin ; for it is not to be doubted , but that the king after six moneths passed , if the incumbent cy might have presented , for plenarty is no plea against him , and nullnm tempus occurrit regi ; and after that usurpation upon the king , the court doubted not but that the patronage was still in the king ; and popham said , that a confirmation being made by the king to such a presentee , is good , to establish his possession against a recovery in a quare impedit by the king afterwards , but that it should not inure to any purpose , to amend the estate of the usurper , for he gaines no posaession by the presentation against the king , but the release to him made by the king is void , as to so much as is in posaession , and during the life of the first presentee , the whole court did not doubt but that the king might present , and then the death of the incumbent could not make that to be an usurpation , which was not an usurpation in his life , for his death is a determination of the first wrong , which will rather help then injure the king : and tanfeild said , that so it had been resolved in the common pleas , & eliz. in one yardleys case , for in that case there was not any induction , for which reason judgement was not entred , but they were all of the same opinion , as the court then was ; and onely e. . . e. . and e. . are against it ; and popham said , that a quare impedit was by the common law , but it was onely upon a presentment , to wit , induction ; but if the incumbent was to be inducted , then at the common law a writ of right of advowson onely lies . digby versus fitzch , trin. . jacobi , rotulo . it was said , in this case by justice vvarburton , that the presentment is the posaession in a quare impedit , as in rent , the receiving , and in common , the taking of the profits : and in a quare impedit one ought to shew in his title a presentation either by himself , or one of those , under whom the plaintiff claimes as in a writ of right of an advowson , one must shew a presentation in himself , or in his ancestors , whose heir he is plenarty in a quare impedit , shall be tried by the bishop , for the church is full by institution onely in common persons cases , but in the kings case the church is not full untill the clerk be inducted , but whether a church be void or not , shall be tried by the countrey , for of voidency the countrey may take notice . actions upon replevins . if the cattel be distrained , the party that owes them may have a replevin , either by plaint , or writ , at his pleasure , and if it be by plaint in the countrey , and the bailiff return to the sheriff that he cannot have the view of the beasts to make deliverance , then the sheriff ought to inquire of that by inquest of office , and if it be found , that the beast be not to be had , then he ought to award a withernam , and if the sheriff will not do it , then an attachment shall issue against the sheriff to the coroners , and after that a distresse , and if a withernam be granted , and a nihil returned upon the withernam , he shall have an alias & plures , and so infinitely ; and a second deliverance lies after a withernam ; and note , that sometimes a withernam lies after a withernam , as when the plaintiff is non-suit , and after a return habend . and that the beasts are not to be found , & that the beasts of the plaintiff are taken in withernam , and the plaintiff appears , and alleadges that the defendant , had the cattel first taken , and prayes delivery . and if the defendant , when the sheriffe comes to make replevin of the cattel , claims property , then at the return of that writ , another writ , de proprietate probanda shall issue to the sheriff , by which writ the sheriffe is commanded ; that taking with him custodibus placitorum , &c. he shall enquire of the property . and if it be found that the property was to the plaintiff , then a redeliverance shall be made the plaintiff , and an attachment against the defendant , to answer for the contempt in taking , and unjustly deteyning , the cattell of the defendant appear upon the plures withernam , he shall gage deliverance presently . and if the defendant in court claims the property , and it be found against him , the plaintiff shall recover the value of the cattell and his dammages . and if the defendant plead in abatement of the writ , that the property is in the plaintiff and one other , &c. and the plaintif confesse it , by which the writ shall abate by an award upon the role , and a return habend . be awarded to the defendant , yet the plaintif shall have a new replevin , and the return shall not be irreplegiable ; for the statute of westm . the second , doth not help a false writ , or abatement of a writ : but the plaintif may have a new writ from time to time , but it helps non-suits in replevin ; for if he be non-suit , he shall not have a new replevin , but a writ of second deliverance . and if the defendant upon the return habend . adjudged for him , cannot have the return of the beasts , and the sheriff returns upon the return habend . that the cattel first taken are dead , he may have a scire facias against the pledges : and upon a nihil return upon that , he may have a scire facias against the sheriff , for insufficient pledges are no pledges ; and the party may relinquish his withernam , and fall upon the pledges or the sheriffe . and if cattell be put into a castle or fortress , the sheriffe may take the power of the county to make a replevin upon the plures replevin : a replevin will not lye of deeds or charters concerning land , and no return habend . lyes upon a justistification : and if a discontinuance be after a second deliverance , the return habend . shall be irreplegiable . and if the defendant after an advowry will not gage deliverance , he shall be imprisoned for the contempt : no disclaimer lies upon a justification , but upon an advowry . and if the replevin was sued by writ , and the sheriffe return thereupon , that the cattell are not to be found , then a withernam shall be awarded against the defendant : and if a nihil be returned , then a capias alias & plur . withernam , and thereupon an exigent : and if hee do at the return of the exigent find pledges to make deliverance , and be admitted to his fine , then the plaintiff shall declare upon an uncore detent . and goe to tryall upon the right of the cause of distress : and if it be found for the plaintiff , he shall recover his costs and dammages : and if for the defendant he shall have a return habend . but if upon the return of the plures repleg . the defendant appear , then no withernam lies , but he must gage deliverance , or be committed : and the plaintiff shall count against him upon an uncore detent . and so proceed to the rightfull taking of the distress . and if it be found for the plaintiff if the cattell be not delivered , he shall recover the value of the goods , and costs and dammages , if for the defendant , costs and dammages , and a return habend . wilkins versus danre trin. . jacobi , rotulo , . the defendant avowed a rent charge , granted to his father in fee , with a clause of distress : the plaintiff demands oyer of the deed , which was a grant of the rent to one and his heirs , to hold to him his heirs , executors , and assigns to the use of the said h. and his assigns during the life of a stranger : and whether it was in fee , or for life , was the question , and whether the habendum be contrary to the premises , or do stand with the estate : if the habendum had been to him and his heirs during his own life , this had been void ; but it was held otherwise for a strangers life , and no occupancy can be of a rent . chappell versus whitlock , mich. . jac. rotulo , . the question was upon a liberty in the deed to make leases , provided they shall not exceed the number of three lives , or twenty and one years , and the lease was made for . years , if two live so long ; if he make a lease absolute , it must not be above twenty and one years , but in this case it is uncertain . manning versus camb , pasch . . jacobi rotulo , . in replevin , the defendant avows damage fesant by reason of a devise made to the advowant by will for one and twenty years , by one lockyer , who was seised of the land in fee : the plaintiff saith , that true it is , that lockyer was seised in fee of the land in question , and by the said will devised the land to the said d. for the said years , in confidence only to the use of it , if she should remain unmarried , and afterwards , and before the taking , dyed thereof , seised j. l. being then sonne and heir of the said lockyer , after whose death the land descended to the said j. as son and heir , &c. after whose death the legatees entred into the land , and were thereof possessed to the use and confidence above said , the reversion belonging to the said j. l. and the woman took manning to her husband ; by reason wherof , the said term devised by the said l. to the said a. and j. to the use and confidence above-said , ended the said being under the age of . years , to wit , of the age of two years , by reason whereof the custody of the heir did belong to the husband and wife , by reason whereof they seised the heir , and entred into the land , and maintained their count ; the defendant confessed the will , and the devise for years , in confidence : and further , that after the term he devised the land to his sonne in fee , and a demurrer . the condition must go to the estate , and not to the use . couper versus fisher , trin. . iac. rotulo . the defendant as administrator of foster , advows for rent reserved upon a feofment made in fee of the mannor , reserving rent in fee to the feoffer , in the name of a fee-farm-rent , with a clause of distress for the not paying of it , and that the rent did desend to the issue of the feoffer . and for the rent due to the heir , the feoffer in his life advows the plaintiff in his barre to the advowry , saith ; that neither the intestate nor his ancestors , nor any other whose estate the said t. hath in the rent were ever seised of the same rent within forty years then last past before the taking , &c. and a demurrer pretending that he ought to alledg seisen in the advoury with forty years : and it was held by the whole court that the seisin is not to be alledged being it was by deed made within the time of prescription ; neither is the seisin but where the seisin is traversable , there it must be alledged , and in no other case , and the judgment was given for the advowant . mich. . jacobi . an advowry was made for an amerciament in a court leet , and shews that he was seised of the mannor in fee , and that he and all , &c. have had a court leet , and the plaintif traverses that he was seised of the mannor in fee : and the court held . if the defendant had a reputed mannor , it would maintain the avowry , though he had indeed no mannor in truth . reynolds versus oakley . the defendant avows for rent reserved upon a lease for life , and the plaintiff shews that the place in which &c. did adjoyn to the close of the plaintiff , and that the cattell against the plaintiffs will did escape into the other close , and that he did presently follow the cattell ; and before he could drive them out of the close , the defendant did distrain the plaintiff's beasts : and whether the distress were lawfull or not , was the question . and the court held in this case , because the beasts were always in the plaintif's possession , and in his view , the plaintiff would not distrein the cattell of a stranger ; but if he had permitted the beasts to have remained there by any space of time , though they had not been levant and couchant , the lessor might have distreyned the beast of a stranger . blown versus ayer , hill. . eliz. rotulo , . in a replevin the question was upon these words , to wit , the said abbot and covent granted to the said r. that he and his assigns , fierboot , cart-boot , and plowboot , sufficient by the appointment , &c. without making wast under the penalty of forfeiting the devise , whether those words make a condition or no , and by the whole court held to be a condition , but judgment was given for the plaintiff for doublenesse in the plea. brown versus dunri , hill. . iac. rotulo , . the defendant made cognizance &c. as bailiff , m. walker , widow , administrator , &c. r. w. for one rent charge of l. granted by one warner to the said r. and m. his wife for life of the vvife . and the said r. by the said writing granted , &c. that if it should happen the said yearly rent to be behind , and not paid in part , or in all by the space of ten dayes next after any feast , &c. being lawfully demanded , that then , &c. the said warner , &c. ten shillings , nomine paene , for every default , and that then it should be lawfull to the said w. and m. and their assigns , to enter into the premises , and distrain as well for the rent as for the nomine paene , and shews that the rent was behind in the life of the husband , and that he dyed intestate , and that administration was committed to the woman , and made cognisance for the rent due at such a feast in the life of the husband , and being then behind , and the issue was , that the grantor was not seised : and after a tryall diverse exceptions were taken ; one was for that a demand was not alledged ; another was , that the cognisance was made as bailifle to the administrator , when as the woman by the survivorship should have the rent . another was , that it is not alledged that the rent was behind by ten dayes next after the feast , and the exceptions upon debate at diverse dayes were over-ruled . first , the demand is not necessary , for the distress is a sufficient demand , as it was adjudged in iaces case : the second was , because the cognisance as administrator are void , idle , and superfluous : and for the ten dayes it was good , because that predicto tempore quo , &c. it was behind , and adjudged by the whole court for the advowant . sloper versus alen , trin. . jac. rotulo , . replevin upon the taking of . sheep ; the issue was , that the sheep were not levant and couchant , and found by a speciall verdit that twenty sheep were levant and couchant , and that twenty sheep were not levant and couchant : and it was held upon the reading of the record , that the plaintiff should have his judgment . bvrton versus cony , hill. . iac. rotulo , . the defendant avows for a rent charge granted to him for life by his father , issuing out of all his lands in such a town , to have and to hold , to levy , and yearly to take the said annuity or annuall rent of &c. during the naturall life of the said p. at two feasts in the year , to wit , &c. by equall portions : the first payment to be made at the first and next feast of the said feasts , which should next happen after the term of . years ended and determined , specified and declared in the said will. and if it should happen , &c. and averres in the avowry , that there is not any term of years specified and declared in the said testament before recited . and note , that in the premises of the deed it is recited thus in fulfilling the will or testament of me the said t. bearing date such a date i have given , &c. and the court held that the grant was present if no term was contained in the will , and judgment was given for the advowant . but after judgment was entred upon record , an exception was taken , because it was not averred that the grantor was dead : and it was allowed for a good exception , but it came to late judgment being entred . heyden versus godsulm . judgment for the defendant who avowed for rent reserved upon a lease for years : and it was moved that the plaintiff who brought the writ of errour upon that judgment ought to find bayle upon the writ of errour by the statute of . iacobi , and it was held by the greater number of the judges that the plaintiffe should not find bayle for replevins are not within the statute . tvrny versus darnes , trin. . iac. rotulo , . demurrer in a replevin upon a traverse of lands , when as the parties have not agreed of the quantity of land. the avowry was that c. was seised of one messuage , two barns , one mill , &c. and . acres of land , with the appurtenances in w. and held them of &c. by fealty & rent , &c. and suit of court , &c. and the plaintiff prayed in aide , and he joyned , and alledges that he was seised of . acres of land with the appurtenances in his demesne as of fee , and held them of g. by fealty and rent , &c. and suit of court , and traverses that he held the tenements of the said g. as if his mannor of w. in manner and form as &c. and a speciall demurrer : and one cause was , because he denies not the seisin of the said services , but only denies and traverses the tenure , and therefore they pretended that the plea contained double matter , and was a negative pregnant , and secondly , whether the seisin or tenure be traversable , and the plea was held good by hubberd and warburton . richards versus young , trin. jacobi rotulo . vel . a replevin brought for taking of cattel at aller , in a certain place called land mead , the defendant avows as bailiff of sir john davies the kings serjeant , containing four acres for damage fesant , the plaintiff pleads in barr , that henry tearl of hunt. was seised of the mannor of aller , whereof one messuage , &c. was parcell , and customary land , and devisable by copy of court roll , and that within the said mannor there was a custome that every customary tenant of the said messuage hath been used to have common of pasture in the said place called land mead , rhe issue was without that , that within the said mannour , with the appurtenances whereof , &c. is , and time out of mind , was a custome that every customary tenant of the laid messuage &c. had common of pasture in manner and form , &c. and serjeant harris moved in arrest of judgment , that there was no custome alledged , because it did not appear in the pleading , that the place where the taking was supposed to be was within the said mannor , and no custome of the mannor , could extend forth of the mannor , but he ought to prescribe in the mannor , and note he ought to have pleaded , that the place in which , &c. was parcell of the mannor , and then the plea had been good . in a replevin upon an avowry for rent , the plaintiff for part pleadeth , payment , for the other part an accord , the one issue is found for the paintiff , and the other for the defendant , the plaintiff shallrecover his costs and damages , and the defend . shall have judgement of return habend . and no costs and damages , i think otherwise it is , if the avowries be severall , then on both sides they shall recover costs , and dammages . lee versus edwards , trin. jacobi rotulo , . the case was in replevin , a copy-holder claims common in another mans land , & the lord infeofleth the copy-holder of his copy-hold land , whether he hath now lost his common , and held that he had , but if a copy-holder hath common in the lords waste , and the lord inseofeth him , of the copy hold with all commons , the common is not gone . oabel versus perrot , hill. jacobi rotulo . tenant in tail hath power to make a lease for years , if three persons live so long , and reserving the old rent due , and payable yearly , and he maketh a grant in reversion for years , and whether that be good or no was the question , there being a lease for life in possession , the second lease was for years , if three live so long , for the matter in law , the court held the lease good , but for want of an averment of the life of , &c. the plea was not good . roberts versus young , hill. jacobi routlo . the defendant in a replevin pleads that he offered amends , and doth not shew that he offered it before the impounding of the cattle , and adjudged an ill plea , and the offer of amends cannot be made to him that maketh cognisance . bacon versus palmer . trin. jacobi rotulo . a copy-holder in replevin prescribes to have common of pasture appurte nant to the copy-hold , the other party , pleads an extinguishment of common , because the lord had inclosed land , lying in another field in which field , and in the other field , the lord had common by cause of vicinage , and note that in common for cause of vicinage , if one inclose part , it is an extinguishment of all the common . sharp versus emerson , mich. . jacobi . the defendant makes avowry for homage , fealty and rent , the plaintiff prayes in aid , and hath a summmons in aid , and at the return of the summons , the prayee in aid was essoined , and after the ession , the defendant moved the court , that the homage might be put out of the avowry , which was entred with by consent of parties , was raised out of the will. arundell versus blanchard and jackson , pasch . jacobi rotulo . the taking in replevin was supposed to be at southwark , and one of the defendant pleads non cepit , and the other bailiff of the governors of the possessions , revenues , and good of the free-grammar-school of &c. for the parishoners for the parish of saint olaves , in southwark , in the county of surrey , and the advowry was made for damage fesant , the plaintiff prescribed for a way belonging to his house , in the parish of saint olaves in southwark , and the venire facias was of southwark , in the parish of saint olaves in southwark , and exception taken to that , and held good , because one defendant had pleaded non cepit , and another exception was , because he had not shewed when the corporation begun , and held an idle exception , for one need not shew when they were incorporated , another exception was , because the name of one of the jury was mistaken , because in the return of the venire it was to lisney of croydon , and in the pannell of the habeas corpus , it was written to john lisney of croydon , and because in sound it is all one , and the sheriff made oath , that he was the man , that was returned , in the venire facias the return was amended in court , and judgement given by the whole court for the plaintiff . pain versus mascall . hill. jacobi . rotulo . the lord avows the taking of one mare , as for rent behind , so for the fourth part of a releif , and doth not expresse the same due for the releif , and for the rent , the plaintiff pleads tender , and demurres for the releif , because he had not expressed the same , and because he had distrained one thing for the rent , and releif , pretending that if one cause passe against him , and another for the avowant , that he could not have a return habend . but the court were of a contrary opinion , but if two men shall distrain one and the same mare for two severall causes , and one hath judgment for himselfe , and the other for himselfe . in this case no return habend . can be made of the mare , brown versus goldsmith , trin. . jacobi rotulo , . a court of pipowders is incident to a fine , and a court baron to a mannor : and a court baron cannot be separated from a mannor ; for it is a wealth to a mannor : the like of a court of pipowder to a fair by the grant of a mannor with cum pertinencijs the court passes ; for it is an incident inseparable to the mannor , and a man cannot grant his court but he may grant the profits of his court. magistri & socij collegij emanuel is in cambridg . the writ was adjudged naught in replevin , because they had distrayned in their proper names for a corporation : as maior and comonalty cannot distrain in their own persons but by their bayliff . the court held that the sheriff could not take a bond in replevin , but must take pledges according to the old custome . jvid versus bungory , trin. . jac. rotulo , . the defendant shews that one was seised of land in fee , and held it by knights service of a mannor , and for the rent of two cocks and two hens : and the lord grants the third part of the mannor to another , who avows for the seruice , and the cocks and hens , and held he could not alone avow for that joynt service , but the other should joyn with him . wenden versus snigg , trin. . jac. rotulo , . in replevin the question was upon a lease for life made to three , to have and to hold to them the said a. b. and c. and every of them for the term of their lives , and the longest liver of them successively one after another as they are writ in order . and the question was , whether this was a remainder or no , and it was held to be a remainder upon the reading of the record : but if the grant had been only successively , not saying as they are named in the writing , it had been naught because he could not tell who should begin . thorold versus hadden . trin. . jac rotulc , . in replevin a juror was returned by the name of payly , and in the distress the name was t. p. and in the pannell he was written baily , and tryed by that name of baily , and moved in arrest of judgment for the mistaking of the name . and the court held , that if the right name was sworn , yet notwithstanding the mistake it was good ; for if the name in venire was not mistaken , all was good , and the sheriff ought to amend his misprision : and the court demanded if any one could swear that paly was sworn ; and one then present in court made oath that paly was sworn : and the court ordered that it should be amended , and judgment was given for the plaintiff ; every leet was derived out of the sherifs turn . paul versus barwicke , hill. . jac. rotulo , . a stranger in replevin pleaded non est factum , where he should have pleaded non concessit , and good after a verdict , though it 's not formall pleading . read versus how. in replevin the place was omitted in the declaration , and the defendant demurred and held a good cause ; for the plaintiff is bound to take notice where the cattell are distrained ; a man cannot distrain for a rent charge but in the day time , because i may take notice where it is , because the law presumeth that i or my servants are all the day upon the ground . a second deliverance must not vary in the place ; a disclaimer goeth to the locus in quo , &c. hynd versus wainman , & al. pasch . . jacobi rotulo , . wainman pleaded non cepit , and the other made cognisance as bayliff to wainman . the plaintiff pleads , that the parties to the fine had nothing , &c. and it was tryed mich. and jacobi , and it was moved by the councell of the defendant , that the plaintiff should prove an actuall taking : but the court held the contrary . and the judges said , that if one takes cattell as bayliffe to another , and by his command , this shall be adjudged to be the taking of the master as of a bayliff in trespasse . francis versus forrest , trin. . jacobi rotulo , . in replevin for the taking of cattell at a. in a certain place called r. the defendant avows dammage fesant ; the plaintif in his barre saies , that he was seised of one messuage , &c. in c. in the parish of a. and prescribes for common : and after a tryall it was moved in arrest of judgement , that the venire facias was ill awarded because it was of a. only : and so it was adjudged by the court. and cook said , that at c. or in c. imply a village , and therefore he said , the venire facias ought to have been of c. and a. or at least of the parish of a. and brownlow chief prothonotary agreed to this . richardson versus sterer , trin. . jacobi rotulo . in replevin the defendant avows for damage fesant . the plantiffe replies that long before the time of taking the cattell , h. late earl of l. was seised of one messuage . &c. and so prescribes for common of pasture for ten beasts , and so justifies the putting in of one cow of the two cowsusing his common . and the plaintiffe further saies that the said w. r. long before , &c. lent to the said t. p. the other cow to manure the land of the said t. p. as long as the said w. pleased ; and so prescribes for the putting in of that cow being thereof possessed by reason of the lending of it , and so demands judgement . and hutton sar●eant moved that the barr was naught , because the plaintiffe had falfified his replication , because the replication is by two , and by the pleading another time of the taking the property was in p. only ▪ and the speciall property by verture of the lending was also in p. and so replevin ought to have been brought in the name of p. onely , and the defendant demurred the replication , and the plaintiffe was non suit . pope versus shurm hill. jacobi rotulo . the defendant avows damage fesant . the plaintiffe claims common by reason of a demise made to him by one h. w. who was seised in fee of one messuage and common for him , his tenants and farmers , &c. and alledges one lease made the thirtieth of march . to have , and to hold , &c. from the feast , &c. then last past for one yeer , and so from yeer to yeer , &c. the defendant traverses the demise , and the jury finde that the said h. w. before the said time of the taking , to wit , the of march , anno . did demise to have for one yeer then next following , and so from yeer to yeer , and this found specially . and judgement was given for the plaintiffe , because the matter in question was whether he had right of common , or not , and not the title of the lease , and it appears by the jury that he had just right of common . and warburton put this difference , if a tenant brings an action of trespasse wherefore by force of arms , &c. against his lord ; and the lord pleads that the defendant holds by such services , and issue be taken upon it ; and the jury finde that he holds by other services , the verdict is sufficiently found for the lord , because the plaintiffe could not maintain an action against his lord. iohnson versus thorowgood trin. iacobi rotulo . in replevin the plaintiffe allows damage fesant , the plaintiffe claims common by prescription to , when the fields called f. and c lye fallow all the time of the year . and when the fields are sowed after the corn , &c. after the feast of pentecost . they used , &c. and the jury found that he had common to wit , when the feilds lye fallow every year , all the time of the year . and when the fields were sowen , they used to have common , &c. and it was held by nicholls that for common appendant it is not necessary to prescribe , but to say he is seised of one messuage , &c. in fee ; and that he hath common of pasture in the said place , as belonging and appertaining to the tenement . and saies further , that judgment ought to be given for the plaintiffe , because it appeared by the record , that the defendant took the cattle at such time as the plaintiffe ought to have common . and therefore nicholls said , that if a man have common for great cattell and sheep , and the sheep be taken , and he prescribes that he hath common for sheep only ; and the jury said common for sheep and great cattel , the common is found for the plaintiffe . and the like if one claim common all the time of the year , when the land lyes fallow , and when it is sowen , from such a day unto , &c. and his cattel are taken in the year when it is sowen as lies fallow , it is sufficient for the plaintiffe to prescribe for common , either in the year when it is sowen , or when it lies fallow . and if the jury find all the common , it is sufficiently found for the plaintiffe . the like if a man hath common from such a day to such day , and the cattell are taken , and a day between the dayes , and he prescribes that he hath common in the said time , quo , &c and the jury find he had common before that time the same day , and after the verdict is found for the plaintiffe , and warburton and winch of the same opinion . pits versus james , mich. . jacobi rotulo . upon a speciall verdict for the misnomer of a corporation . the first question was , whether the foundation of poore men to pray for souls departed is within the statute of chaunterys : and secondly , for the misnomer : and winch : held that the plaintiffe should not be barred for the misnomer ; and for the second he held that his house was within the statute of chaunterys , and so the interest in the king , h. . and so the lease made by the master of the hospitall void . dyer . . and warburton held the plaintiffe should be barred upon both points . swynerton versus mills , hill. jacobi rotulo . in a replevin the defendant a vows for a rent charge reserved by a copiholder who is seised in fee , and made a lease by the license of the lord , reserving rent at foure feasts , or within one and twenty days , being lawfully demanded , and afterwards the copiholder surrendred one moity in fee to a stranger , and afterwards surrendred the reversion of the other moity to another , to which the termer atturned , and so avowed for rent . the plaintiffe pleaded in bar● that he was seised of a close adjoyning to the place , in which , &c. and put therein his cattell , and that they escaped by fault of inclosure , and issue taken upon that . and after a verdict by default those exceptions were taken to the avowry in arrest of judgement . first , because it appeared by the advowry that the copiholder had surrendred a reversion , which could not be , because a copiholder is a tenant at will , and so could not have a reversion ; for he cannot make a lease for yeers without the license of the lord , but this exception was over-ruled by the cou●t . secondly , because there was no atturnment alledged in the first surrender . and it was held no exception , because the rent for which he avowed was reserved by the copiholder by the second surrender , to which the termer had atturned . and also the court said , that an atturnment is not necessary for a copiholder , because there is no time when the terme should atturn . for before the surrender he cannot atturn ; and after the surrender and admittance it is too late . and the copihold estate is like an estate raised by uses or devise , in which an atturnment is not necessary . as also in an estate raised by fine , and the like , an atturnment is not necessarie , for if the termer will not atturn , he is compellable by law , as by a quid juris clamat : but a copiholder hath no means to make the termer atturn if he refuse . and thirdly in the conclusion of the advowry , he doth not say that the rent was behind such a day , and one and twenty dayes after at least ; and this exception was disallowed , because the distresse is a sufficient demand of the rent ; and it appears that the day of the taking of the distresse was one and twentie dayes after the feast , at which the rent was due , and judgment was given for the advowant : and note , that a covenant to distrain is idle , for a man may distrain of common right . howell versus sambay , mich. jacobi rotulo . in replevin , the defendant a vows for a rent charge , and a nomine pene granted by tenant in tail generall , and one fine levied afterwards , and the use expressed : the plaintiffe replies , and saies that the grantor had only an interest for life , and so makes inducement , and traverses the use of the fine . the defendant demurrs ; and held by the court that the grantee was not seised in tail , nor to the use of the fine . and it was said , that in this case , that it was necessary for the advowant to plead the fine with the estate tail ; for if the tenant in tail grant a rent charge , and dye , no fine being levied , and the estate tail discends , the issue in tail is not chargable with the rent . and note , the advowry was as well for the rent as for the nomine pene , and no speciall demand was alledged in pleading the rent : and it was adjudged by the court a naughty advowry as to the nomine pene , but good for the rent , as it hath been adjudged in one mildmaies case . cotterell versus harrington , pasch . . jacobi rotulo . in a replevin the defendant avows for an annuity for d. granted for yeers payable upon demand , and alledges a demand ; the plaintiffe demands either of the deed , and by the deed it appeared that for a hundred and ten pound one rent of twenty pound was granted for eight yeers , and another for l. for two yeers , if e. r. and t. should so long live : the plaintiffe pleads the statute of usury , and sets forth the statute , and a speciall usurious contract . if it had been layed to be upon a loan of money , then it was usury ; but if it be a bargain an annuity it is no usury . but this was alledged to be upon a lending vvood versus moreton hill , jacobi , rotulo . in replevin the defendant advows to have common appendant out to his house and land , the plaintiffe saith , that he had common appendant to his house and land. and the defendant to avoid the common saith , that the commoner sold to the plaintiffe , five acres of the land , to which the common is appendant , pretending that he should not have common for that land , being but parcell of the land to which the common was appendant , common appurtenant cannot be to a house alone , purchasing of part of common appendant , doth not extinguish the common , otherwise it is of common appurtenant . and it was pretended to be common appurtenant , because it is to a house and land , whether by severance his common is gone , and held to be common appendant , and judgment given for the plaintiffe . morse versus well . replevin for common of pasture , the casewas that the father was seised of two yard land with appurtenances , and had common of pasture , for four rother beasts , three horses , and sixty sheep , and he demised part of the said two yard lands in being . and whether the common should be apportioned , and if it should be apportioned whether the prescription failed , because the issue was taken , that he and all those , &c. had common in the said two yard land , a release of common in one acre , is a release of all . if i have common appurtenant , and purchase part , the common is gone , but otherwise it is of common appendant . and note : this common was common appendant , and the purchasing of common appendant , doth not extinguish the common , and judgment was given for the commoner by the whole court. hvghes versus crowther , trin. jacobi . rotulo . in a replevin a lease for years made to charles h. and the said a. t. to have and to hold from , &c. for sixty years if they live so long , charles dyed , in this case judgment was given , that the lease was ended by the death of charles , but otherwise it had been if it had been for life . bicknall versus tucker , trin. jacobi rotulo . in a replevin the case was , whether a fine with five years will bind the copy-holder in remainder , there was a copy-hold granted to three for lives , to have and to hold successively , the first had the free hold granted to him , by the lord of the mannor . and then he leavied a fine and five years passe , whether he in the remainder be barred or no , those whose estates are turned to rights , either present or future , are meant by the statute , to be barred of a copy-hold for years , be put out of possession , and a fine leavied and no entry by him , he is barred by the statute , by the bargain and sale , he in the remainder is not put out of possession , if a man make a lease to begin at easter next , and before easter a fine is leavied : and five years passe , this fine will not barr , because at the leavying of the fine he could not enter , for then his right was future , if the lease had been in possession , and the lessee had never entered he had been barred . a lease for years , remainder for years , if the first man taketh for life , the first estate is not so determined but that the remainder standeth , if a copy-hold surrender for life , there passeth no more from him then so much as maketh the estate and no more , and the rest remaineth in him . crantley versus kingswel , pacsb . jacobi rotulo . the defendant makes cognisance as bailiff of kingswell his father for rent , service due to his father at such a feast . and shews that cramley holds of him by fealty , and rent paiable at such a feast , and for rent due at such a feast made cognisance , the plaintiffe in barr saies , that he at the said feast offered the rent upon the land , and that no body was there to receive it . and the plaintiffe saith , that afterwards he demanded the rent upon the land , and the plaintffe made a replevin , pretending the lord should make a personall demand , but the whole court was against him . and warburton took acception against the pleading the tender , because he saith that he offered the rent to pay , when as he was not present . and the question was , whether the lord for a rent service , did not demand it at that day whether he can distrain without a demand of the person , and held he might , for the tenant is yet bound to tender , and the land is debter , and the lord may resort thither , when he pleases to demand the rent upon the land , but if he tender his homage , and the lord refuses it , he cannot distrain without a demand of the person , and judgment for the defendant . stokes versus winter , trin. . jacobi rotulo . in replevin , the defendant makes cognisance as bayliff to tenant for life , to whom the annuity was granted for life , to begin by will , after the death of the devisor ; and alledges the death of the devisor , but not the day of the death : after whose death the said h. was seised of the yeerly rent aforesaid in his demesn , as of his free-hold for terme of his life , by vertue of the devise aforesaid . and because seven pounds of the rent aforesaid , for one yeer , ended at the feast , &c. and by the space of . dayes then next following were behinde to the said t. the said time , with , &c. the said t. as bayliffe of the said h. doth make cognisance of the taking of the cattell aforesaid in the said place , in which , &c. for the said li. for the yeerly rent aforesaid being so behind , &c. and issue was taken whether the said i. at the time of his death was seised of the said six acres of land in his demesne as of fee , as , &c. and after tryall exception was taken to the advowry , because it was not alledged that the annuity at such a feast , after the death of the devisor was behinde , but it was over-ruled , because there is so much expressed , and judgment given for the defendant . hvmfrey versus powell , trin. . jacobi rotulo . replevin , wherein the defendant avows for one annuity granted to the defendant , to whom the office of catorship of the church of roffen in kent was granted by the d●an and chapter of that church for life , with an annuity of . pounds for the exercising of that office , with a clause of distresse , by vertue of which grant he was possessed , and avowes for the annuity , and avers that it was an ancient office pertaining to the dean and chapter of roffen : and doth not aver that the annuity was an ancient annuity . the defendant pleads the statute of the eliz : that all devises , donations , grants , &c. made by any master , and fellows of any colledge , dean and chapter , &c. other then for the terme of twenty and one yeers , or three lives from the time of this devise , &c. should be totally void . and shews that the old dean died , and another was elected ; and a demurrer thereupon ; and judgement that the grant was void . hyen versus gerrard , mich. . jacobi rotulo . the defendant in replevin avows , that one being seised in fee made a lease to him , and avows for damage feasant . the plaintiffe in barr pleads , and maintains his declaration , and traverses the lease upon the avowant , demurrs , and adjudged a goodtraverse . ienyx versus applefourth , trin. . eliz : rotulo . the defendant avows for a rent charge , the plaintiffe in barr pleads that the defendant had presented a writ of annuity , and that he had an imparlance thereunto ; and demands judgement , if the defendant did well make cognisance to the taking of the cattell in the said place , in which , &c. in name of a distresse for the rent aforesaid , by vertue of the said writing , as bayliffe of the said r. the said writ of annuity being prosecuted , &c. upon the said writing , in form aforesaid , &c. and a demurrer thereupon , and judgement by the whole court for the plaintiffe ; it is not needfull to lay a prescription to distrain for an amerciament in a court leet , but it is otherwise for an amerciament in a court baron , by the whole court. darcy versus langton . the defendant avows for a rent charge , and for a nomine penae , and no mention made in the avowry of the rent charge , and the plaintiffe was non-suit , and afterwards in arrest of judgement this matter was alledged , and at first held to be a good exception ; but afterwards judgement was entred , an advowry is in the nature of a declaration , if that be vitious no judgement can be given for the advowant . trin. . jacobi regis , rotulo . replevin for the taking of cattell at andover , in a certain place there called r ▪ the defendant makes cognisance for damage feasant : the plaintiffe saies , that he was seised of the messuage , &c. in c. in the parish of a to which he claimed common of pasture . and issue taken upon the prescription , and a venire facias of a. and exception taken , because it was not tryed of c. and a. or of the parish of a. but it was adjudged to be good . trinbone versus smith , trin. . jacobi rotulo . in replevin , foure and twenty were returned upon the venire facias , and upon the habeas corpus , onely twenty and three were returned , and the jury did not appear full , and a tales was awarded , and tried for the plaintiffe , and good , because the venire facias was returned full . pigott versus pigott , mich jacobi . in replevin , avowry that ellen enderby was seised in fee , of three acres in dale , and took to husband s. pigott , and had issue tho : ellen dyed , and the husband was in by the curtesie , the husband and tho : the heir , granted a rent of . 〈◊〉 . issuing out of the three acres to the avowant , and avows for so much behind , the plaintiffe in barrsayes , that before ellen had any estate , one fisher was seised in fee , and gave it to john e. in tayl , jo : had issue ellen , who after the death of her father , entred and was seised in tayl , and took a husband , as is before declared . and had issue tho : and that tho. tenant by the curtesie living , grants the rent as above without this , that ellen was seised in fee of three acres , and issue was joyned thereupon , and found for the avowant . and in arrest of judgment it was objected , that in effect there was no issue joyned . for the traverse of the sesin of ellen e. was idle , for no title of the rent is derived from her , but they ought to have traversed the seisin of thomas the grantor , and then the issue had been of such a nature , that it had made an end of the matter in question , which was not in this case , no more then if the tenant in formulen should plead not guilty , but the court held that though an apter issue might have been taken , and that the traverse is not good , yet it was helped by the statute of jeofailes . for the estate of ellen h. was in a sort by circumstance materiall . for if she were seised in tayl , and that estate tayl , discended to thomas the grantor , then by his death the rent is determined after the fee discended to tho : from ellen , there the estate was of that nature , that he might grant a sufficient rent charge . and although it might well be presumed , that thomas after the fee discended to him from ellen had altred such estate tayl , yet by popham the courts shal not now intend that , because the parties doubted nothing , but whether ellen was seised in fee or not when he dyed , and that doubt is resolved by the verdict , as if a defendant should plead a d●ed , of j. s , to a. and b. and that it dyed , and b. survived and infeoffed the defendant , if the plaintiffe should say that j. s. did not infeoffe a. and that they should be at issue upon that , and should be found against him , although this be no apt issue yet it is helped by the statute , because the parties doubted of nothing , but of the manner of the feoffment of j. s. whether it was made to a : or not , and of the same opinion was fennor , yelverton , and williams . but not gandy . crate versus moore , mich. . jacobi . in replevin of cattell taken in d. the defendant avowes as bayliffe of h. finch , and the case was thus , the lady finch mother of h. finch , granted a rent charge to h. issuing out of her mannor of n. and out of all her lands in d. e. and is in the county of kent , belonging or appeartaining to the said mannor ▪ and the plaintiffe to barr , the defendant pleads an abatement in h. finch into the lands in d. and upon the defendant demurrs for the lands in d. were not belonging or appertaining to the mannor of n. and adjudged for the defendant . for no land can be charged by that grant , if it be not belonging to the mannor . and that for two reasons , the first is because by the word ( aut alibi ) it appears that it is all but one sentence , and the ( aut ) conjoynes the words proceeding to wit , all the lands in d. s. and to put in the county of kent in these words following , to wit ( alibi ) in the said county to the said mannor appertaining , and the sentence is not perfect untill you come to the last words , ( to the said . mannor appertaining ) for if the rent be issuing out of the land in d. &c. which is not appertaining to the mannor , then the sentence must be perfect , and these words ( county of kent , and these ( aut alibi ) must begin a new sentence : which was never seen , that they should make the beginning of a sentence . and therefore this case is not like the case between bacon and baker , second of king james , in the prohibition , where queen eliz. grants all her ●ith hay , &c. within the liberty and precincts of st. edmonds bury , belonging and appertaining to the said monastery , and which were lately collected by the almoner of the said monastery ; for there the latter sentence is perfect and compleat : and these words ( in the county of suffolke ) and the nec non that ensues are a new sentence : and therefore the last clause ( and which by the almoner , &c. goe only to the tiths following the ( nec non ) and not to the tiths contained in the first clause : but it had been otherwise if the ( nec non ) had been ( unacum ) as in truth the patent was , but it was mispleaded ; for then the ( unacum ) would have reinjoyned all , and made it but one sentence . the second reason was , in respect of the nature of the thing granted , which was but a rent . and therefore , if rent be granted out of a mannor , to be perceived , and taken out of one acre , this shall be good : and nothing shall be charged but that one acre only , . ass . but otherwise it is of land for a feofment of a mannor . to have &c. one acre it is a void habend . for here it appears , that the intent of the lady finch was only to charge the mannor , and such land only which were appertaining to the mannor : but popham held the contrary , for he conceived that d. s. and w. in the county of kent were particularly named and bounded in by the name of the place and county , and therefore they should be charged , although they were not appertaining to the mannor . as if a man grants all his lands in d. r. and v. in the county of m. and in darn in the same county which he hath by discent , it should only extend to darn , but denyed by the court , but he was strongly of that opinion . and he held that by the first of the charge out of the mannor ; all the lands parcell or appertaining to the mannor are charged , and therefore the subsequent words if they should be limited , as is above-said , would be idle and frivolous . and yelverton said , that the words before belonging or appertaining , shall be taken to extend to the land occupied in the mannor , although it is not parcell of it , and fenwood and willams granted , and judgment was given that the defendant should have a return habend . tott versus ingram , trin. . jac. in a replevin brought by t. against i. who makes conisance as bailiff of sir ed. br. for a common fine which was assessed upon the plaintiff who was resident within the leet of his master : the plaintiff replies , that sir edw. by his deed had released to him all rents , services , exactions , and demands out of his mannor except suit of court ; the defendant demurred : and nichols ; that suit of court for which this common fine was set is excepted , and therefore the common fine is not released by that , but is excepted : also a common fine is assessed , when the jurors in the leet do conceal that which they ought to find , and with which they are charged , and therefore the release being for exactions out of the land : and this is not for any thing by reason of the land , but because he doth misbehave himself ; and by the opinion of the whole court , a release of all demands doth not discharge a man of his suite to a leet by reason of his residency ; because a leet is the kings court , to which every leige-subject is to come and perform his allegiance to him . and also because suit of court is inseparably inoident to a court ▪ leet which cannot be released . pallets case , pasch . . jacob. in a replevin in which pallet was plaintiff , the case was such , where a man made a lease of lands , of which land he was seized by a good title , and of land of which he was seised of a defeasible title for years , rendring rent : and in the replevin , the lessor avows for the whole rent : the plaintiff in the replevin saith ; that after the lease made , the disseisee had entred upon part of the land , and a demurrer . sergeant hicham moved for the advowant that he ought to have a return ; for he agreed that the rent should have been apportioned ; but he said , that if a man avows for many things , and he hath right but to one , he shall have a returh habend . . h. . and . h. . and . ass . pl. . where a man brings an assise for rent , and hath right but to part , yet he shall recover for that part , and cited the opinion of popham put in walkers cafe in the third rep. . when rent reserved upon a lease for years should be apportioned . if a man in an action of debt demands more then hee ought , yet upon a nil debet pleaded , the lessor shall recover so much as shall be apportioned and assessed by the jury , and shall be barred as to the residue . but yelverton was of another opinion ; for he said , as this case is , the avowant shall not have a return habend . but if the apporciament had been made by the jury , he should have had a return habend . but in this case the apporciament must be made by the judges , to whom the quantity of the land cannot appear , and therefore they cannot make apportiament ; for they all agreed that the apportiament ought to be accotding to the value of the land , and not according to the quantity : and to prove this , he cited hubberd and hammonds case , . eliz. co . lib. . as where the fines of copyholders upon admittance are uncertain , the lord cannot exact excessive fines : and if the copyholder deny to pay it , it shall be determined by the opinion of the judges before whom the matter depends : and upon a demurrer to the evidence to a jury upon the confession or proof of the annuall value of land ; the annuall value ought to appear to the judges ; but in this case the value doth not appear to them , and therefore they cannot make any apportiament , and therefore the avowant shall not have a return habend . but t●anfield held the avowant should have a return habend . for the whole rent ; for the judges could not apportion this , because the value did not appear : and the eviction is matter of privity , which ought to be discovered by the lessee , and he should give notice to the lessor , and he ought to shew the value of the land from which he is inriched to the judges . and popham is of the same opinion ; for he said the value of the land ought to be shewed by the lessee , for every one ought to plead that which is in his knowledg , and that was in the lessee's knowledg , and not the lessor : and fenner of the same opinion , but yelverton and williams against it ; for yelverton said , that it appeared that part of the land was evicted , and therefore it ought to be apportioned ; but because the value did not appear to the judges , it could not be apportioned . williams said , that if the lessee surrender part , the lessor need not shew the value : and popham agreed to that , because the acceptions of the lessor had made him privy to it . kenrick versus pargiter , trin. . jacobi . the defendant justifies the taking of the cattell damage fesant upon a surmise of a custome ; that the plaintiff being lord , hath the place in which &c. wholly to himself untill lammas day : and after that day it is common for the tenants , and the plaintiff is not to put in but only three horses , &c. and because the plaintiff after lammas put in more cattell then three horses , the defendant took them damage fesant , as it was lawfull for him to do : and issue was joyned upon the custome , and found against the plaintiff ; and yelverton shewed in arrest of judgment that the defendant could not take the cattell damage fesant , for it appears that the defendant is only a commoner : and it also appears , that the place in which &c. is the soile of the plaintiff , and the cattell cannot be taken damage fesant upon his ground , no more then the tenant can have an action of trespass against his lord guare vi & armis , &c. in regard of his seigniory , as it is in littleton , and . h. . but the court said , that the matter of taking the cattell did not come into question ; for nothing was in issue but the custome , which is found against the plaintiff ; for if the plaintiff would have taken advantage of that , he ought to have demurred . and although by that he had confessed the custom , yet whether such commoner could have taken , the lords cattell would then properly have come into debate . and by fenner , williams , and cook , the taking the lords cattel damage fesant was good ; for by the custom the lord is to be excluded but only for his stint : and the lord may well be stinted , and the whole vestive and benefit of the soile is the commoners , and they have no other remedy to preserve the benefit they have in feeding their cattell , but by taking the cattell of the lord if he offends . and the custome hath made the lord as meer a stranger as any other : and without doubt the commoner might take the cattell of a stranger , . h. . the chief justice and yelverton doubted of it : and although the commoners by the custome had gained the sole feeding in the land of the lord : yet they ought to have shewed the custome , and also the usage to have distrayned the cattell of the lord damage fesant , and observe his . braxall versus thorold . trin. . jac. in replevin for the taking of oxen at coringham in the county of lincoln , in a place called dowgate leys , sept. . jac. the defendant says , the place contained four acres in coringham magna , which was his free-hold and justifies the taking damage fesant . the plaintiff in his bar to the avowry , that the place where &c. lies , in a place called harrerart quarter , parcell of a great common field called e. in coringham aforesaid : and that the plaintiff the said time , and long before was seized of one messuage , and of . acres of land , medow , and pasture , with the appurtenances to the said messuage belonging , and that the plaintiff and all they whose estate the plaintiff had in the tenements , ought to have common , and so prescribed to have common for him , his farmers , & tenants , &c. for all comunable cattell levant & couchant upon the tenements , &c. and upon issue taken upon the common , it was found for the plaintif , and alledged in arrest of judgment , that it did not appear by the barre to the avowry in what place the messuage and land to which the common did appertain did lie , to wit , whether it did lie in coringham , or in any other place or county , and thisof necessity ought to have been shewed in certain , because the tenure ought to be both of the place where the house and land did lye , and of the place where the land did lye in which the common was claimed , and therefore of necessity ought to have been shewed incertain , and shall not of necessity be intended to be in coringham where the common is ; for a common may be appendant or appurtenant to land in another county . and the trvall shall be of both counties , and judgement was arrested by the whole court truelock versus riggsby mich. . jacobi . in replevin , for the taking of six kine in a place called brisley hill , in radley , in the county of berks , the defendant as bailiff of one read , makes conisance that the place , where , &c. contains fifty acres , and is parcell of the mannor of barton , whereof the place , where , &c. is parcell , and showes that e. . was seised of the mannor of barton , whereof the place where is parcell , and granted it by letters patents to r. leigh , and divers other lands . by the name of the coxleyes , &c. and amongst other particulars in the patent , the king granted brisley hill in barton , and deduces the free-hold of the mannor , of which the place , in which , &c. is parcell to read , and he as bailiff to him , took the kine damage fesant : the plaintiff replies , and shows that one hide was seised of a messuage , and divers acres of land in radley , and that he and those , whose estate he hath for himself , his farmers and tenants used to have common in the said place called brisley hill in radley , when the said feild , called brisley hill in radley , was fresh and not sowed , all that yeare with their cattell levant and couchant , and when the field was sowne with corne , and when the corne was carried away , untill it was referred , and so justifie the putting in of six kine using his common , because the feild was not sown with corne at the time , to which the defendant pleads , and saies , that part of the feild , called brisley hill in the avowry named , was at that time sown with corn , &c. and the plaintiff demurres , and adjudged for the plaintiff for two reasons . the first was , because the defendant in his avowry referres the taking of the cattell to another place , then that set forth in the avowry , which is not in question , and in which the plaintiff claims no common , for the plaintiff may claim common in brisley hill in radley , and the place named in the defendants avowry , to which he referres his plea is brisley hill in barton , for brisley hill in radley is not named in the avowry by any speciall name , but onely by implication , by this name the place in which , &c. and for that reason the rejoinder doth not answer the matter in the replication . the second cause was , because the plaintiff claims common , when brisley hill in radley was unsown with corn , and the defendant to that , although his plea should referre to the same brisley , yet hath he given no full answer , for he saith that parcell of the said feild was sowed with corn , and the court held that sowing of parcell of the feild shall not hinder the plaintif from using his common in the residue , for that may be done by covin to deceive the plaintiff of his common , for the plaintif claiming his common , when the field , that is , the whole feild is sown , shall be barred of his common by sowing of parcell of it , notwithstanding that parcell be sowed , the plaintif shall have his common by the opinion of the whole court . godfrey versus bullein . mich. jacobi . bullein brought a reple vin against godfrey , for the taking of six beasts , in such a place in bale , in the county of norfolk . ▪ the defendant as bailif of r. godfrey makes conisance , because before the time , and at the time , in which &c. the said r. geffrey was seised of a court leet in baile of all the inhabitants , and r●●dent within the precinct of the mannor of baile , to be holden within the precinct of the mannor , as appertaining to his mannor , and shews , how that he had used to have a fine of ten shillings , called a leet fine of all the cheif pledges of his leet , and if they failed to pay , the steward had used to amerce them that made default in payment , & shewed , how that at a court holden within the mannor , such a day it was presented , that the plaintif in the replevin being an inhabitant in b. and resident within the precinct of the mannor , made default in payment of the said fine of ten shillings , being then one of the cheif pledges of the court , by reason whereof he was amerced at five pounds , which being not paid , the defendant took the beasts , and the issue was , whether bullein at that court was a chief pledge or no , and the venire to try his issue was onely of the mannor , and found for the plaintif , and damages , and costs to thirty pounds given against geffrey , upon which he brought a writ of error , in the late kings bench , and adjudged error and the judgement reversed , for the venire facias should have been both of bail which was the village , as of the mannor , for although the court be held within the mannor , yet the leet it self is within the village of baile , and the plaintiff was an inhabitant , and resident within the village , which village is within the precinct of the mannor , and though fleming cheif justice held , that nothing was in question but whether the plaintiff was cheif pledge at the court held within the mannor or no , and so nothing within the village is in question , or could come in issue , yet it was resolved by the whole court , but him , that those of the village of bail might well know whether the plaintif being an inhabitant within the village in which the leet was , were a chief pledge at the court or no , for to have cheif pledges , doth properly belong to a leet , which leet is within the village , and therefore they of the mannor cannot have so good knowledge of the matter , as they of the mannor and village together , and therefore they all ought to have been of both , as in the case of common , or a way from one village , to a house in another village , this ought to be tried of both villages , and so also of the tenure of land in d. held of the mannor of sale , the triall must be as well of the village , where the land lies , as of the mannor of which the land is holden , as it was adjudged hill. . el. in the then queens bench , in the case between lovlace and and judgement was reversed , and see h. . and arundels case , in my lord cooks reports . bvrglacy versus ellington . burglacy brought a replevin against ellington , for the taking of his cattell , &c. the avowant pleads that one w. b. was seised of the place in which , &c. in his demesne , as of fee , and being so seised died , by reason whereof the land descended to one crist. his daughter and heir , who took to husband the avowant , the plaintiff in his barr to the avowry , confesses that w. b. was seised , and that it descended to c. who took to husband , the avowant , but he further said that the of april , primo jac. the husband and wife by their deed indented , and inrolled , did bargain and sell the same land unto one missenden , and a fine levied by them , and that m. the of james , bargained and sold it to f. m. in fee , and he being so seised , licensed the plaintiff to put in his cattell , the avowant replies , if in the said bargain and sale made by the husband and wife , a proviso was contained , that if the said ellington should pay one hundred pounds a year after , then , &c. and pleaded the statute of eliz. of usury with an averment that the profits of the land were of the value of twelve pounds by the year , the plaintif rejoyned that true it is , there is such a clause in the indenture but he further said , that before the sealing of the indenture , it was agreed by word , that the said ellington should have and receive the profits , and not the plaintif , and thereupon the avowant demurres , and the case was thus , ellington bargains his land to m for the payment of one hundred pounds a yeare after to be paid , and that the bargainee should have the profits , the bargainor enters as upon a void sale , because of the statute of usury , for by the proviso ●he is to have the hundred pounds , and ten pounds for the forbearance , and by the law , he is to have the profits , and the which did amount above ten pounds by the hundred , the bargainee to avoid the usury pleaded an agreement by word , before the sealing of the bargain and sale , and the question arising upon this was , if the bargainee might plead this verball agreement , for the avoiding of the deed which did suppose the contrary , and moore of lincolns ●nne counsell , was of opinion that he could not put that maxime that every thing must be dissolved by that , by which it is bound , and his whole argument depended upon that , and he cited divers cases , as h. . . h. . . eliz. dier . . rutlands case rep. and cheyney case there , but the whole court without any argument were of opinion , that he might plead the verball agreement , and avoid the usury , and first they all agreed , that when a deed is perfected and delivered as his deed , that then no verball agreement afterwards may be pleaded in destruction thereof , as it is in the cases put , but when the agreement is parcell of the originall contract , as here it is , it may be pleaded and secondly otherwise it would bring a great mischief , being the custome so to do by word , but if it had been expressed within the deed , that the bargainee should have the profits , and that it was delivered accordingly that no agreement or assignment of the profits could now avoid it , for it is an usurious contract , and therefore the whole court gave judgement for the plaintif that he might well plead the agreement . actions of trespass and battery . johnson versus turner , trin. eliz. trespasse brought for breaking the plaintifs house , and the taking and carrying away his goods , the defendant justifies all the trespasse , the plaintif , as to the breaking of the house , and taking the goods , and the matter therein contained demurres upon the defendants barr , the defendant joins in demurrer in this form , to wit , because the plaintif aforesaid , as to the breaking of the house , and taking the goods is sufficient , demands judgement , and judgement given in the common pleas for the plaintiff , and a writ to inquire of damages , upon which damages are assessed for the breaking of the house , and taking the goods , and whether the subsequent words , to wit , and the matter therein contained go to the whole matter in the barr , to wit , to the carrying of the goods away also , for when the defendant joyned in demurrer with the plaintiff he joyned , specially to wit , to the breaking of the house , and taking the goods , but nothing of the carrying them away , and so as to the carrying of them away , nothing is put into judgement of the court , yet the writ to inquire is for the whole , and the judgement also , and the carrying of the goods away being parcell of the matter , and for which greater damages , are adjudged , and that being not put into the judgement of the court by the demurrer , therefore the judgement is erronious , for there is a discontinuance , as to the carrying of the goods away , which is part of the matter , and this businesse concerned mr. darcy of the privy chamber , concerning his patent for cards . pvrrell versus bradley . pasch . jacobi . the plaintif declares in trespass , wherefore by force and arms , such a day the defendant did assault him , and one mare , price six pounds , from the person of the plaintiffe , then and there did take , and yelverton moved for the defendant in arrest of judgement , and the declaration was not good , for the plaintif did not shew any property in the mare , for he ought to have , that it was his mare , or the mare of the plaintif , for as it is laid in the declaration , the words may have two intendments , that the property of the mare was to the defendant , and then the taking was lawfull , or that the property was in the plaintif , and then the taking was wrongfull , and it being indifferent , to whether it shall be taken most strongly against the plaintif , for his is not a fault in form , which is helped by the statute , but it is a defect in matter , and then the jury having assessed intire dammages for both the trespasses , and that no cause of action is supposed forme , the verdict was not good which the court granted . freshwater , vers . reus , mic. jac. tenant in tail , convenanted to stand seised in consideration of a marriage , to be had by his son , with the daughter of j. s. to the use of himself & his heirs , untill the marriage be had , & afterwards to the use of himself for life , & afterwards to his son and his wife , the daughter of j. s. and the heirs of their bodies , and suffers a recovery with a single voucher to that purpose , they die without issue , and adjudged that the entry of him in the remaindant depending upon the estate . tail was lawfull , for first there is no consideration , to raise an use for the consideration , is onely the marriage of his son with a stranger , the which as to the changing ofthe of the possession is not any benefit to the father , for he is as a stranger to that personall & particular consideration , but if the consideration had been for the establishing of the land in his name and blood , it had been good , for that onely concerned the father , and the whole court agreed , that although it were an alteration of the estate , as to himself , but not to strangers , for if he had after such covenant to stand seisedtook a wife , she should have had dower . in trespasse the proces is attachment and distress infinite , but if nihil be returned , proces of outlary lyes ; and if the defendant be returned attached by such goods and chattels , if the defendant omit to cast an essoine at the returne of the writ of attachment , he shall forfeit the goods by which he was attached , but if he cast an essoine , he shall have a speciall writ , reciting the matter to the sheriff , to deliver to him his goods or cattell , although he doe not appeare at the day of the adjournment of the essoine : and if the defendant at the returne of the attachment will appear without an essoine he may , and then he shall not forfeit the goods : and note , the essoine shall not be adjourned by , from fifteen dayes to fifteen dayes : and if the originall writ be against many , they shall have but one essoine in personall actions : and if a lord of the parliament appeare not , he shall forfeit an hundred pounds , and upon issue joyned in this action , the proces against the jury , is the venire facias , habeas corpus , and distresse : and if a baron of the parliament be a defendant , then if a knight be not returned upon the pannell , the defendant may at the assises quash the pannell ; and if at the assises the jury doe not appeare full , to wit , twelve men , this may be supplyed by the justices at the request of the plaintiff ; and the sheriff ought to returne two hundreds at the least in this action , and so in every personall action ; but foure in reall actions , for if a challenge be made , pro defectu hundredo , if two be not returned , the jury shall remaine ; and a distringas , with a decem tales shall be awarded , returnable in court , but no circumstances shall be awarded in court , for if the jury in court doe not appeare full , or are challenged , for that the jurors have no freehold , and it be tryed , a new habeas corpus shall issue out with a decem tales , if it be desired : and if the jury appeare full in the court , and the array be challenged , either for that it was of the plaintiffs denomination , or that the sheriff or under sheriff who returned the jury , are of the kindred of the plaintiff , or any other principall cause of challenge , and this is confessed or tryed by two of the jurors who have appeared , being assigned and sworne by the court to be tryers of the challenge , who shall give their verdict that the challenge is true , then the array shall be quashed ; and if he that arrayed the pannell remaine sheriff , the venirefacias de novo , shall be awarded to the coroners , if there be no cause of exception against them or any of them by reason of kindred , or any other principall cause : and if there be cause of challenge to any of them , the venire facias shall issue to the rest , and his companion shall not intermeddle with the execution of it ; and if there be good cause against all , then a venire facias shall issue to estizors to be appointed by the court to returne the writ , but if the sheriff who returned the first pannell be removed , then a new venire facias shall issue to the sheriff who shall be then in office : and note , no challenge shall be made to the array returned by the estizors but by the poll ; and if the jury appeare full , and no challenge be made untill twelve be sworne , the jury shall proceed to heare their evidence , and give their verdict ; and if the jury finde for the plaintiffe , then they shall give costs and dammages , but if they find for the defendant , they shall finde neither costs nor dammages : and the judgement for the plaintiff is , that the plaintiff shall recover his dammages found by the jury and costs of suit , but if the jury find for the defendant , the judgment is , that the plaintiff shall , in t . capiat per breve , but if judgement in this case had lyen , a nil dicit confession . or non sum informat . then the court shall award to the sheriff a writ to inquire of dammages , and no challenge lyes to the jury upon a writ to inquire : and if the sheriff returne but twenty and one upon the jury , and twelve of them appeare , and try the issue and give a verdict , it is a good verdict , but if onely ten or eleven of them appeare , and the jury be made up at the assises , de circumstantibus , and the issue be tryed and a verdict given , it is naught , and not holpen by the statute : and if the issue be joyned , and the sheriff be cozen to the defendant , the plaintiff shall not have a venire facias upon the challenge of kindred of the sheriff to the defendant , but it ought to stay untill that sheriff be removed and another sheriff made : and if the defendant be lord of the hundred , within which hundred the ten doth arise , the plaintiff may shew that , and have a venire facias to the next hundred ; or if the array be quashed for that cause , he may have a venire facias to the coroners of the next villiage in the next hundred next adjoyning : and note , the venire facias shall not issue to the coroner but upon the principall challenge , and if a challenge be to the tales , and that be found true , the tales onely shall be quashed , and the principall pannell shall stand : and if an issue be joyned between the mayor and commonalty of a city , and another concerning a trespass done within that city ; the plaintiff surmising that the sheriff and coroners are citizens of that city , may pray a venire facias to the next county of the body of the county , or of the next villiages in the next county : and if the challenge of kindred be not rightly alleadged in the challenge , it matters not if it be kindred ; and if a venire facias be quashed , because it was returned by the under sheriff who was kin to him , or other good cause , it shall be quashed , and the venire facias shall be returned by the high sheriff , with words in it , that the under sheriff shall not intermeddle with it : and if the array be challenged and affirmed , the defendant may after challenge the poll , and must shew his cause of challenge presently : and if the land in question lye in foure hundreds , if foure of any hundred appeare , it is good ; and note , that the challenge of the array shall be drawne in paper , and delivered presently after the jury appeares ; and the defendant is not bound to make good his challenge with these words , et hoc parat . est ver iscare , &c. and those that try the principall challenge may also try the challenge upon the tales , if the king had been party alone no challenge was to be allowed , but if the suit had been in the name of another , who sued as well for the late king as for himselfe , in a writ to inquire of waste after a distress , no challenge to the poll lyes . it is good cause to challenge a juror because he was attainted in a conspiracy or attaint , or if any juror was put into the pannell at the desire of the party , it is good cause of challenge to the array : and if a jury of two counties , and both arrayes are challenged , two of one county shall try the array of that county , and two of the other county shall try the array of the other county , and they shall not joyne untill they be sworne of the principall , and two of one hundred and two of the other hundred doe suffice , if in trespass the defendant justifie as a servant to the lord and by his commandement . it is good cause of challenge to the juror that he is a tenant to the lord , although the lord be no party to the record ; and if process by challenge is awarded to the coroners , the process afterwards shall not goe to the sheriff , although there be another sheriff , but after judgement execution shall issue to the new sheriff : and where a man challenges the polls of the principall pannell , he afterwards shall not challenge the array of the tales , and if the array be quashed , it is entred upon record , but if it be affirmed then it is not entred . if trespass be done in diverse townes in one shire , they may all be joyned in one writ , to wit , why by force and armes the closes and houses of the plaintiff at a. b. and c. have broken ; and , &c. wolsey versus sheppard , constable , the constable being defendant justifies the imprisonment , by reason that the plaintiff kept one alehouse against the forme of a statute of queen elizabeth , and therefore by the warrant of two justices he was committed to prison , and issue was , that he did not keep an alehouse against the forme of the statute aforesaid ; and indeed the statute was made in edw. . time , and the jury found that he did keep an alehouse against the statute in edw. . time : and the court held the mistaking of the day of the act is not prejudiciall by way of barr , but by way of count it must be layd truly . glasbrook versus einsey , pasch . . jacobi , in assault and battery , the defendant pleaded not guilty , and the next terme after the writ of venire facias was awarded , the defendants attorney would have confessed the action by relicta verificatione , which the plaintiff did deny to receive , having took out his venire , and that those errors which had escaped in the proceedings by that confession were not holpen as they are after tryall ; and it was much controverted by the court , whether the defendant without the consent of the plaintiff might confesse the action ; and the court was in severall opinions , but because the plaintiff always prays for the confession , it seemed he might refuse the confession ; and afterwards it was adjudged the confession should not be received , because it appeared to the court to be but a practice to lessen the plaintiffs damages . cook versus jenman , trin. . jacobi , rotulo . an action of trespass and battery was brought the last day of october , jacobi : the defendant as to the force and armes sayes nothing , but pleads generally that he and one , in the sayd last day of october did joyntly enter into the plaintiffs at s. and did then and there assault the plaintiff ; and that afterwards , to wit , such a day and yeare , the said plaintiff ▪ did by his writing , &c. release , &c. the said r. of all actions , &c. and avers it to be the same trespass whereof the plaintiff complained , and the plaintiff traverses without this , that the trespass , &c. was joyntly done , and demurrer upon this plea , pretending the trespass is severall and not joynt , and so no satisfaction , but it was held a good plea , for the battery was joynt or severall at the plaintiffs election , to have his action against one or other : and a satisfaction by one is a satisfaction for all , and the plaintiff cannot have severall dammages , but one dammage against them all , and he hath his choice , as in heydens case , to have the best dammages . cook versus darston , mich. . jacobi , an action of trespass brought by the committee of a lunatique being a copy-holder to whom the lord had committed the lunatique , and a stranger sowed the land , and the question was , whether the committee or the lunatique should have the action , and the court held , the action should be brought in the name of the lunatique . younge versus bartram , battery brought by the plaintiff against husband and wife and two others , the woman and one of the others , without the husband plead not guilty , and the husband and and the other plead , son assault demesne , and tryed , and alleadged in arrest of judgement , because the wife pleaded without her husband , and judgement stayed and a repleader by the whole court. crogate versus morris . if a stranger come over a common , the lord may have an action , but not the commoner ; for the petty trespas , multiplicity of actions wil not take away my action : & except it be a damage whereby i lose my common , i can have no action . if a stranger come and eat up my common , a free-holder may bring an assize of common , for it is a disseisin ; for a disseisin of common ; is the taking away the profits of the common : and an action of case will lye against the lord for cutting down the body of the tree , when the tenant should have the loppings ; if the commoner may have his common , although another take away part of my common , yet no action lyeth . as if one beat my servant lightly , except the master lose his service , no action lieth . and if my friend come and lye in my house , and set my neighbours house on fire , the action lyeth against me , and judgment for the plaintiff . hatton versus hun , trin. . jacobi , rotulo , . in trespasse and imprisonment , the defendant justifies by vertue of a capias , and the plaintiff did afterwards escape , and he being sheriffe , did follow him by vertue of the said warrant taken upon the capias , the plaintiff replies that he escaped by license of the sheriffe , and traverses the latter taking by vertue of the warrant : and the court held the traverse idle , because the plaintiff had sufficiently confessed , and avoided : and if he escaped by the sheriffs license , that ought to be the thing put into issue , and not the traverse . patry , versus wilsh , trin. . jacobi . rotulo , . an action of trespass brought , wherefore by force and armes he broke the plaintiffs close , and eat his grasse , &c. the defendant justifies for common of pasture , and saith , that he was seised in fee of one messuage , with the appurtenances in g. and used to have common for all his cattell , levant and couchant upon the said messuage . and it was moved after a verdict in arrest of judgment by sergeant nichols , that the plea was insufficient , because the certainty of the cattell was not expressed , as for . or the like : but the court held the contrary that levant and couchant is a certainty sufficient , and all the books prescribe for a common by reason of a messuage . ringhall versus wolsey , mich. . jacobi rotulo , . an action of trespass brought ; wherefore by force and armes the servant of the plaintifs out of the service of the said plaintiff , hath taken and laid to be at h. the defendant justifies that one was possessed of corn at s. and that the said servant by the command of his master , had carried away the corn : and that the owner came to the defendant , being constable , and prayed him to detain the servant untill hee could procure a warrant of a justice of peace , and traverses that he is guilty at h. the plaintiff demurres , that it was held by the court a naughty plea : first , because the constable could not detain any man but for felony : and secondly , the traverse is naught , because the trespass is in the same county , and so he might have justified as well in h. as in s. darney versus hardington , pasch . . jacobi rotulo , . an action of trespass brought , to which the defendant pleads a justification for an amerciament set in the sheriffs turn ; to which justification exceptions were taken . first , because the defendant justified by vertue of a precept to him lawfully granted , & saith not at what place . secondly , he prescribes for the turn to be held , and doth not any , or what estate , &c. and hutton said , that a prescription for a turn , or one hundred court by what estate , is naught , because a hundred is not manurable , but lies in grant ; but he ought to have said , that the king and all they that were seised of the said hundred have had , and from the time , &c. and my lord cook said , that a prescription by what estate for a thing incident to a mannor is good , for an hundred that lies in grant , it is naught : and he and warburton held that except it was shewed before whom the turn was held , it was naught ; because where any thing is taken by common right as the sheriffs turn , it ought to be holden before the sheriff , as in the prescription it ought to be shewed , before whom the turn was held , or else it would be naught . roberts versus thacher , & al. hill. . jac. rotulo , . an action of trespass brought ; wherefore by force and arms the close and house of the plaintif at a. did break , and a certain cow , price , &c. took . the defendant saith , that the plaintiff ought not to have his action against him , because he saith that the close & house is one messuage , &c. in a. aforesaid : and that before the time in which , &c. such a one was possessed of the said cow , as of his own proper cow , to wit , at a. aforesaid ; and being thereof so possessed , certain malefactors unknown to the said , &c. before the said time , in which , &c. the said cow out of the possession of the said b. did feloniously steal , take , and lead away , whereupon he made hue and cry ; and thereupon hee had intelligence , came , and was in the possession and custody of the plaintiff , and b. upon notice thereof , did request the defendant to ask the cow of the plaintiff , and to bring her , &c. by reason whereof , the defendant the said time , in which came to the said messuage by the usuall way , by and through the said close , &c. to demand , &c. and the defendants then & there finding the aforesaid cow in a wall'd parcell of the messuage , they took the cow from thence , and brought her to the said b. and to him delivered her , as &c. which is the same trespass , to which plea the plaintiff demurres , and it was adjudged a naughty justification for these reasons . first , because it doth not appear but that the plaintiff had good right to the cow. secondly , because the defendant took the cow without demand . and thirdly , it is not pleaded that the defendants were servants to the said b. r. and that he did it by his command , and therefore judgment given for the plaintiff . hall versus stanley , & al. pasch . . jacobi . rotulo , . an action of false imprisonment : the defendant as to the whole trespass except the battery and imprisonment , and keeping in prison not guilty : and as to that pleads that the marshals court is an ancient court , &c. and so justifies , because the plaintiff was the pledg of t. c. to the defendant in an action of trespass upon the case in an indebilat . assumpsit generall , and thereupon a judgment against c. and a capias awarded , and a non est invent . returned , and thereupon a capias awarded against hall the pledge according to the custome , by vertue whereof the said hall was taken and detained , and traverses that he was guilty , &c. of any imprisoning the plaintiff before such a day , and averres that they are the same persons : and the plaintiff replies , that neither r. c. nor t. t. at the time of exhibiting the bill were of the houshold , &c. the defendant demurs , and judgment for the plaintiff : and the whole court agreed , that the marshalls court could not hold plea , covenants , and contracts , except both of them were of the houshold of the king ; and all the matters of which they could hold plea , were trespass , covenants , and contracts of the houshold , and within the verge , to wit , within twelve miles of the court , and doddridge said that before the statute of l. as it appears by fleta and brian , the authority of the marshall was absolute in civill and criminall causes at the common law , and that statute restrains them for debts , but not for trespasse of what nature soever , and therefore see the statute of l. . e. . ch . . and e. . ch . . swaffe versus solley , trin. jacobi . rotulo . an action of trespass brought , wherefore he took his close , the defendant justifies for a way , the plaintiff replies that he did the trespass of his own wrong without any cause alledged , and so an issue joyned , and after a verdict , for it was moved in arrest of judgement , that the issue was not well reined , and prayed a new triall , because the issue ought to be speciall , but that exception was disallowed , and adjudged that it was helped by the statute of jeofails , by the opinion of the whole court. plaint versus thirley , hill. jacobi rotulo . an action of trespass brought , wherefore by force and arms , the goods and chattells of the plaintif did take and impound , the defendant pleaded the common barr , and the plaintif assigns the place , and are at issue upon that , and after a verdict it was moved in arrest of judgement that there was no issue joyned , because the lands are not in question , and so no assignment necessary , and judgement was stayed , but afterwards upon a motion judgement was given for the plaintif , because the issue was holpen by the statute of jeofails , and there was the like case upon a demurrer , in the court of common pleas , trin. jacobi , rotulo . child versus heely , jacobi , rotulo . vel . an action of trespass brought , wherefore by force and arms , the close , hedges , and gates , of the plaintiff at w. did break , and his grass with walking over it did destroy , and other his grass with cattell did eat and consume , the plaintiff assigned one close of pasture called drew , and another close called sutton , one other close called l. and the defendant as to the trespass , except the breaking of the close called g. and p. and the treading , &c. with his feet , and eating with his cattell in the said close called p. and e. not guilty , and as to the breaking of the close , &c. saith the plaintif ought not to have his action , because he saith that e. . was seised of the mannour of w. of which one messuage &c. was copy-hold and shews the custome for a way , and another custome for a common , and conveys the copy-hold to himself , and justifies , as to the pedibus ambulandi , and as to the trespasse with the cattell justifies for common , the plaintif replies as to the trespass pedibus ambulandi , that it was of his own wrong without any cause alledged , and traverses the way , and as to trespass with the cattell demurres , and the cause of the demurrer was , as it appeared by motion , because in the justification of the cattell the defendant had not alledged any custome for common , and so the plaintif could not take any issue of that custome , but had alledged a custome for the way , as for the common , and the court were of opinion that it was well pleaded ; and judgement upon the demurrer for the defendant . fairchild versus gair pasch . jac. an action of trespasse brought for the tiths of the church of b. and therein a speciall verdict was as followeth , the defendant was collated to this church of b. being a donative by a. and b. the patrons , and that the church was exempt from the jurisdiction of any ordinary , the defendant resigned to a. and c. who was a stranger , and to other persons who had no interest , his church of b. with all rights , &c. and afterwards the persons passe their rights to d. who collates and interests the plaintiff in the church , by reason whereof he seised the tithes in question , and the defendant took them , and concludes that upon the matter , &c. and if the resignation be good , then they find for the plaintiff , otherwise , for the defendant , and by the opinion of the whole court , judgement was given for the plaintiffe , for the resignation was good , both in respect of the thing resigned , and of the person to whom it was made , for it being a donative , and exempt from ordinary jurisdiction , the resignation must be into his hands , and the incumbent shall not be constrained to keep the church , whether he will or no , if the patron will not accept it , and because there is no person , to whom the resignation can be made , but onely into the hands of the patron , it is good , and although the resignation be to one patron , and to a stranger , it is good to both the patrons , and void as to the stranger , and the more strong it is , because of the following words , ( to wit , to all persons whatsoever , which words involve all , that have any manner of interest , and then seeing it is found , that d. who collated the plaintiff , and the estate of both the patrons , although no agreement be found of the patrons , it is not materiall , and the resting of the plaintiff in the church is good to give him power to take the profits by reason of the primer possession , and although the defendant did resigne but the church onely , yet it is good to all that appertains to the church , and that which the defendant may have as rector there , e. . is , that if the patron grant ecclesiam , that will passe the avowson , but herlethen said , that was in ancient time and therefore not so then , to which the court seemed to agree , and the court waived the dispute of any other thing , but onely the resignation , for of that onely the jury doubted , and was onely referred to the court , but popham chief justice said , that if the patron would not collate any man to such a donative , there was no way to compell him , but he is left to his own conscience , and he might in time of the vacancy take the profits , and sue for the tithes in the spirituall court , for such donatives at first grow by consent of all persons , who have any manner of right or interest , to wit the ordinary , and parishioners , but gawdy , fenner , yelverton , and williams , against him , that the ordinary might compel him to collate any clerk , for the rectory is only exempted from the power of the ordinary , and not the patron , and that is onely as to charges to be taxed upon the church , for the ordinary attendance in a visitation , and such like , and popham said , that although the church in execution of the charge is spirituall , yet the patron may collate , and a meer lay man , as the king may make a temporall man a dean , which hath often happened , but all the other judges were against him in case of the person , which is meerly spritual , but as to the deanery , they did agree it , for the function is temporall , but yet williams said , that lay men who have deaneries , ought to have , and at all times used to have a dispensation from the archbishop , and if the incumbent in this case should preach heresie , as the attorney and popham said , the ordinary might correct him , for the parson is not exempted out of his jurisdiction , but his parsonage onely , but by gawdy and the rest , the ordinary could not meddle with him , for the parson is priviledged in respect of the place , but the patron may commission and examine the matter , and thereupon out and deprive him , and so it happened in coverts case , as gawdy and williams said , wherein the bishop of winchester was the donor of such a donative , e. . lee versus lacon , . jac. in trespass , the action was land in the county of salop , and not guilty pleaded , and the venire facias was made with a space for salop , but salop was not named there : and by vertue of that writ the sheriffe of salop impannelled the jury , and found for the plaintiff , and the matter above specified was moved in arrest of judgment , to wit , that the venire facias was vicious , and so a mistriall ; but by fenner and williams it was to be accounted his , if no venire facias had been awarded : and so indeed by the statute of jeofailes ; for the county , to wit , salop , is omitted , and left out , and so the sheriffe of salop had no power nor authority to summon the jury , because the writ which is his warrant is generall ( to the sheriff ) and not naming of any county : but the court held it to be the best way to amend it , and they put this difference : for when the action is laid in salop , and upon a special pleading , the issue is drawn into a forreign county , there the entry and award of the venire upon the will is speciall , to wit , to the sheriff of that county , where the issue arises to be tryed : and in such case a venire facias with a blan●k shall not be good , because it cannot be judged to which of the sheriffs the venire was to be awarded , and upon that incertainty it shall be naught : but when the generall issue is taken , or the matter is triable in the same county where the action is laid , there the venire facias is awarded generally , and must of necessity be intended to be the sheriffe of that county where the action is laid , and cannot be otherwise intended : and for this reason it was but the default of the clerk which is amendable , and so it was amended . baylie versus moon , trin. . jacobi . an action of battery brought in plymouth court before the major and bailiffs there , and not guilty pleaded : but afterwards the issue was waived , and judgment was given for the plaintiff , and a writ to enquire of damage was awarded to the serjeant of the mace , that by the oath of twelve , &c. he should inquire : and the writ was made returnable at the next court before the maior and baylifs . and upon a writ of errour brought , it appeared by the record certified , that the writ to inquire of damages was taken before the maior of plymouth , who was also judg of the court , and for that cause reversed ; for the writ warrants the inquiry to be before the serjeant of the mace , who by the writ for that purpose is made a distinct officer , and so an inquiry before the maior is not warranted by any writ : and so by consequence a judgment to recover those damages taxed before a wrong officer to whom the writ was not directed , is erroneous , which was granted by the whole court. laxworth versus west , mich. . jacobi . trespass brought for the taking of hay severed from the ninth part of elthorp in the county of warwick , the defendant to part pleads not guilty , and to the residue pleads a devise of the parsonage made by lepworth to the defendant at wapenbury in the same county , and to inable the devise for tithes in l. alledges l. to be a hamlet in wapenbury , to the intent that the whole tithes may pass : and upon a non devisavit , the venn was of wapenbury , and found for the plaintif , that t. l. did not devise it , and the other issue of not guilty found for the defendant , and moved in arrest of judgment that the venu was mistaken , because it was of wapenbury only , and not of elthorp , and they of w. could not try a matter in e. and although it was answered , that the defendant himself by his plea had confessed that e. was but an hamlet , yet the court held the venu mistaken ; for when the plaintif declares of a trespass in e. this by generall intendment is presumed to be a village : of which village the matter which is there in question ought to be tryed : and although the defendant had alledged elthorp to be but an hamlet ; yet it was but to inable the devise , and doth not extend to the issue before joyned upon the not guilty for part ; for in that issue both parties agree that elthorp is a village , and it is a perfect issue taken , which hath not any coherence with the other issue of non devisavit : but if the defendant had to the whole issue pleaded the devise as his excuse , and had alledged e. to be an hamlet of w. and that only been in issue there , the venu awarded had been good of w. only ; but in this case it was adjudged that the venire was mis-awarded , and that the plaintif should have a venire facias de novo . delves versus wyer , mich. . jacobi . the plaintiff brought an action of trespasse for breaking his close , and for cropping . pear-trees , and . apple-trees , and damage found to . l. and the court was moved by richardson , for that the damages might be mitigated , because he produced an affidavit , whereby it appeared that the party himself before the action brought , would have took l. but denyed ; for the court said , that they could not diminish the damages in trespass which was locall , and therefore could not appear to them , and the damages might well amount to l. for cropping of an orchard , and so judgment entred . woody's case , mich. . jacobi . woody brought an action of false imprisonment and battery against two , who justifie and set forth that london is an ancient city , and that the maior of london is a justice of peace , and that the defendants were serjeants of the mace according to the custome of the city , and that the lord maior , to wit , one lee , commanded them to arrest the plaintif for causes to them unknown , but to him known , and to imprison him , &c. walter moved that this justification was insufficient , because they only shewed that they were serjeants at mace duely elected according to the custome of the city ; but do not shew the custome and authority that they have to make serjeants , and to arrest , as it is . h. . . in trespass the defendant justifies , that the tower of london is within the city of london , and time out of mind , &c. one court was there used , &c. and that the plaintif was sued there by j. s. and that hee was summoned : and upon a nihill returned , a capias issued according to the custome , &c. and that he being an officer there , did arrest : and the court ruled him to plead the custome particularly for holding the court , and to prescribe , &c. and here it is shewn that the maior is a justice of peace : and it doth not appear whether he did it as a justice of peace , or maior , as . h. , . a justice of peace cannot command his servant to arrest one without a warrant in writing in his absence . and popham , chiefe justice , said , that although the judges knew the authority of the maior , by which they arrested men ; yet because it did not appear to them judicially as judges , it must be pleaded : and a justice of peace cannot command his servant to arrest one if not in his presence , which was granted . and fennor , justice , said , that the servant is not an officer to the maior as he is a justice of peace , but the constable : and walker also added , that the plea was , that the maior commanded to imprison him presently without shewing any cause , which was held naught ; for the maior ought to temper his authority according to law. for the judges cannot imprison without shewing cause ; but them and the maior both may command an officer to arrest a man without shewing the cause , for else before he shall be examined he may invent and frame an excuse , and the accessories will flye away : and williams , justice , finds that it was incertain for the plaintif , by what authority he commanded it , whether as maior or justice of peace : and his power as a justice of peace the judges knew by common law ; but his power as a maior they knew not , if it be not shewed by pleading and judgement . hvggins versus butcher , trin. . jac. the plaintif declared that the defendant such a day did assault and beat his wife , of which she dyed such a day following to his damage l. and serjeant foster moved that the declaration was not good , because it was brought by the plaintiff for a battery done upon his wife : and this being a personall wrong done unto the woman , is gone by her death : and if the woman had been in life , hee could not have brought it alone , but the woman must have joyned in the action ; for the damages must be given for the wrong offered to the body of the woman , which was agreed . and tanfield said , that if one beat the servant of j. s. so that he die of that beating , the master shall not have an action against the other for the battery and loss of service , because the servant dying of the extreamity of the beating , it is now become an offence against the crown , and turned into felony , and this hath drowned the particular offence , and prevails over the wrong done to the mr. before : and his action by that is gone , which fennor and yelverton agreed to . brown versus crowley , pasch . . jac. action of trespass brought against croyley for wounding the plaintif upon the hinder part of the left legge , being rendred in latin , super posteriorem partem levis libaei , and the jury found for the plaintiff : and harris moved in arrest of judgment ; for hee said that these words ( levis libaei ) made the declaration vitious for the incertainty ; for he said that levis signified light , and it was an improper word for left ; and that judgment ought to be respited for the incertainty . and yelverton argued that judgment ought to be given for the plaintiff ; for he said , the declaration was not vitious ; for if the plaintiff had declared generally that he had wounded , broken , or evill intreated him , and had omitted those other words , it had been sufficient , and then the adding of those words which were not materiall , but for damages did not make the declaration vitious : and he said , that levus leva levum was latin for left : and whereas he hath said , that he strook him , super posteriorem partem levis libaei , where it should have been ( levis libaei ) it was but false latin , and the declaration shall not be made naught for false latin. and popham said , that hee shewing upon which part of the body the wound was , were laid only to incense damages ; for the declaration had been sufficient , though they had been omitted : and justice fennor agreed to popham , and he said , it had been judged , that where a man brought an action against another for calling him strong theife : and the jury only found that he called him theife , but not strong theif , yet the plaintiff recovered ; for this word strong was to no other purpose then to increase dammages , and judgement was given for the plaintif . viccars versus wharton , pasch . . jac. viccars brought an action of false imprisonment against wharton and others , and shews that he was imprisoned two dayes and two nights without meat or drink . the defendants come and shew that king edward the . by his letters patents did incorporate one village in nottingham-shire with bailiffs and burgesses , and that the king did ordain and make those burgesses justices of the peace there ; and that the defendant was baili●● , and a justice of peace there ; and that the plaintiff did speak divers opprobrious and contumelious words of the defendant , by reason whereof they imprisoned him : and shews further , that the bailiffs have used from the time of the making their patent to imprison the disturbers of the peace , and it was held a naughty plea , for a custome could not be shewn in such a manner : and tanfield held in this case , that a man could not prescribe to be a justice of peace ; but justice williams held he might prescribe to be a conservator of the peace . and tanfield held that the king might grant that all the burgesses and their heires should be burgesses , which justice williams denyed . hall versus white , pasch . . jac. an action of trespass brought against the defendant for impounding the plaintiffs cattel , the defendant justifies for common : and upon that they were at issue in derby-shire , and the jurors being sworn , the bailiff found one bagshaw one of the jurors , rending of a letter concerning the said cause , and shewed it to the judg , and a verdict given by the jury : and this matter moved in the then kings bench to quash the verdict , but denyed by the whole court , because the letter and the cause was not certified by the postea , and made parcell of it ; for otherwise the examination of that at the barre after the verdict , shall never quash it . and so it was adjudged between vicary and farthing , . eliz. where a church book was given in evidence , of which you shall never have remedy except it be entred and made parcell of the record . bvtler versus duckmonton , trin. jacobi . in trespasse upon a speciall verdict , the case was , that no demised land to a woman , if she should live sole and unmarried , the remainder to john d. bastard in tail , the remainder to the defendant ro. duckmonton in fee , the woman married with ro. d. the defendant the term expired , jo. d. tenant in tail , in remainder releases to the husband , and whether this should alter the estate of the husband , he being tenant at sufferance was the question , and adjudged by the whole court , that the release was void , and it was cheifly void , because the release was made to him in the remainder to take effect , as upon the remainder , and there was no privity , and he had but a bare possession , and no freehold , and eliz. dier , lessee for years , surrenders , and afterwards the lessor releases to him , and held a void release for the reason aforesaid , and and eliz. it hath been adjudged between allen and hill , where a devise was made to the woman for life , if she would inhabite and continue in the house , and he went and inhabited in surrey , and the heire released to her , and it was held void , because she was but tenant at sufferance , and so no privity , but yelverton and tanfield , that such estate for life was not determined without entry , and yelverton justice demanded , that when the husband continued in possession after the lease determined whether he should be in the right of his wife , and so remain tenant at sufferance , whether he should be in his own right , or be as an intruder , disseisor , and then the release made to him was good , but no answer was given to him , but judgement was given that the release was void , and fennor put this case , tenant for life , remainder in tail , remainder in fee , he in the remainder in fee released to tenant for life , a void release , because of the mean remainder in tail , and cited e. . and no answer was given to it , and yelverton said , that if tenant for life release to him in the remainder in fee , it is void , because it shall be void , as a surrender , and this word release , shall not recite as a surrender . holdesden versus gresill mich. jacobi . an action of trespass brought for breaking the plaintiffs close called b. at l. and for taking of two conies , the defendant to the whole trespasse , but the entring in the close pleads not guilty , and as to the close justifies , because he common in the close called b. for five cowes , and because very many conies were there feeding , and spoiling the common , the defendant in preservation of his common entred to chase and kill the conies , to which the plaintiff demurred in law , and judgement was given that the justification was naught , for a commoner cannot enter to chase or kill the conies , for although the owner of the soil hath no property in the conies , yet as long as they are in his land he had the possession , which is good against the commoner , for if the lord surcharge the common with beasts , the commoner cannot chase them out , but the owner may distrain the beasts of an estranger or dammage feasant , or chase them out of the common , for the stranger hat no colour to have his beasts there , and also conies are a matter of profit to the owner of the soil for housekeeping , and therefore because it appears that the cause of entry was to chase , and also to kill , which are not lawfull , as against the lord , who is plaintiff , therefore the matter of the justification is not good , for if the lord surcharge the soil with conies , the commoner may have an action of case against him for that particular dammage , which is a sufficient remedy against the plaintiff , upon a full and deliberate considera-of all the judges . jennings versus haithwait , mich. jacobi . an action of trespass brought , to which the defendant pleaded not guilty , the jury found the defendant vicar of d. and that he such a day leased his vicaridg to j. s. for three years rendring rent , which j. s. assigned one acre parcell thereof to the plaintif , and the defendant was absent severall quarters in one year , to wit sixty dayes in every quarter , but they did not find the statute of eliz. & adjudged for the defendant , for the statute of the eliz. is a generall law , for although it extends but to those which have cure of souls , yet in respect of the multiplicity of parsonages and vicaridges in england , the judges must take notice of it as a generall law , and adjudge according to the said statute , and so is the statute of the h. . for non-residence . drewry versus dennys , mich. . jacobi , an action of trespass brought against a man and his wife , and the plaintif declares , that they did beat one mare of the plaintifs , and committed diverse other trespasses , and upon not guilty pleaded , the jury found that the woman beat the mare , and for the residue they found for the defendant , and the verdict adjudged naught by the court , for it is altogether imperfect , for they have found the woman guilty of the beating the mare , and have given no verdict concerning that for the husband , either by way of acquittall or condemnation ; and the finding the defendant not guilty , as to the residue , doth only extend to the other trespasses contained in the declaration , and not to the beating of the mare : and williams and cooke justices said , that where a battery is brought against husband and wife , supposing that they both beat the plaintif or the mare of the plaintif , and upon not guilty pleaded , it is found that the woman onely made the battery and not the husband , this verdict is against the plaintif , for it now appears that the plaintifs action was false , for the husband in this case shall not be joyned for conformity onely , and there is a speciall writ in the register for this purpose , and is not like a battery charged upon i. d. and i. s. for there one may be acquitted and another found guilty , and good , because they are in law severall trespasses . sands and others , versus scullard and others , mich. . jacobi . the plaintiffs brought an action of trespass against the defendants for entring their close ; and judgement was entred against dawby one of the defendants , by nil dicit , scullard pleaded not guilty , whereupon a venire facias was awarded upon the roll between the parties , as well to try the issue , as to inquire of the damages : and the plaintiffs took their venire facias to try the issue between the two-defendants , and the two plaintiffs . and according to that was the habeas corpus , and distringas , but the plaintiffs knowing dawby to be dead , took their record of nisi prius against scullard onely ; and he was found guilty : and yelverton moved in arrest of judgement , and shewed the venire facias , and that there was no issue joyned between the plaintiffs and dawby , for judgment was given against him by nil dicit ; and the writ ought to have made mention onely of the issue between the plaintiffs and scullard : and their ought to have been an inquiry of damages between the plaintiffs and dawby , according to the award upon the roll , which is the warrant for the venire facias ; and it was shewed that the jury knew nothing of the matter for which they were warned , for they ought to have onely given their verdict against scullard and not against dawby ; and it was likened where two matters are in issue , and they give a verdict for one and nothing for the other , it is naught for all : and this was the opinion of the whole court except justice williams , who relyed upon . eliz. dyer , sir anthony cook , and wottons case in partition against two , one confessed the action , and the other pleaded to issue , and the venire facias was to try the issue between the plaintifs and the two defendants , and it was amended by the opinion of the court : but marke the difference , for no damages are to be recovered in partition , but it is otherwise in trespass ; and therefore in cooks case it was found by the court , that it was as if a meer stranger to the record had been named in the venire facias . winckworth against man , mich. . jacobi . the plaintiff declares for a trespass in one acre of land in d. and abuts that , east , west , north , and south ; and upon not guilty pleaded , the jury found the defendant guilty in halfe an acre within written ; and moved in arrest of judgment , because upon the matter no trespass had been found , for there is no such moity bounded as the plaintiff had declared , for the whole acre is onely bounded by the plaintiff , containing his trespass within those bounds , and the defendant ought to be found a trespassor within those bounds , for otherwise it is not good ; and it is impossible for the moity of one acre to be within those bounds : but the whole court except fenner , were of opinion that the plaintiff should have his judgement ; for if the plaintiff layeth his action for a trespass committed in one acre , and the jury find that onely to be in one foot of it , it is good ; and here they have found the trespass in the moity of the acre bounded , which is sufficient in this action , where damages onely are to be recovered , but if it had been in ejectment , the verdict had been naught , for it is incertaine in what part he should have his writ of habere facias possessionem . bvckwood against beale , mich. . jacobi , in an action of trespass it was sayd by the court , that if a sheriff execute a capias , and there is no originall to warrant it , he is excused it , for he is not to examine whether the originall be sued out or no : and for this trewyrmards case , h. . and so if a bailiff execute a process made to him by the steward for damages recovered in the mannor in a thing in which they had no authority to hold plea : the bailiff is excused , and shall not be punished , because he is not to examine the jurisdiction of the court , h. . . ed. . & . ass . but if process come to the sheriff to arrest j. s. and he arrest j. n. or to make execution of the goods of j. s. and he make execution of the goods of i. n. he is a trespassor ; for in this case he must take notice at his perill of the person and the goods , for when he arrests i. n. or does execution upon his goods , he doth it without warrant : and so if i. s. sue a replevin to the sheriff to replevin his cattell , and i. s. comes to the sheriff , and shews him the cattell of i. n. and saith they are his cattell , and he makes replevin of the cattell , he is a trespassor to i. n. and the sherif may have an action of trespass against i. s. for his false information , for the sherif must at his owne perill take notice whose cattell they be , h. . h. . but if there be any fraud in the matter he may averr that . monrey versus johnson , an action of trespass brought for entring into a mans house , the defendant pleads that he was a constable , &c. and it was held by the whole court that a constable may justifie his entry into the house of any man for felony or treason . strickland against thorpe , pasch . . jacobi . thorpe brought an action of trespass against strickland , wherefore he broke his close the . of june jacobi , with a continuance thereof untill the sixth of november after ; and upon a not guilty pleaded , it was found for the plaintif and judgment entred , but it was entred nothing of the fine because it is pardoned : and upon a writ of errour brought he assigned for errour that the judgment should have been entred with a capiatur , because the king and parliament pardoned all offences before the . of september , and therefore the trespass being alleadged to have been continued untill the sixth of november following , onely part of the trespass was pardoned ; and therefore , as to that it should have been a capiatur ; but the whole court were of opinion that the judgment was well entred for the first trespass , which was by force and armes being pardoned , all that depends on that was pardoned , and the continuance of the trespass being onely as to the entring and consuming the grasse is for increase of damages onely , but not for the kings fine , for the first entry being only with force and arms makes the trespass . repps against bonham , trin. . jacobi , the case in trespass was that a feofment was made of three acres to r. repps and mary his wife for their lives , and afterwards to the first , second , and third son of the body of the sayd mary ; and after to the heirs of the body of the said mary by the said richard to be begotten , and they had no son but one daughter : richard levies a fine of the land , and mary dyes , the plaintif enters , and the defendant pleads richards fine , and adjudged that the plaintif is not barred by the fine , for richard had onely an estate for life , and the estate tayle was in the woman only by the opinion of the five justices ; for they said that the husband is only named to declare what heir of the body of the woman should inherit : and not any heir , but such an heir as richard her present husband should beget . and if the limitation had been to the heirs of the body of the woman by her husband , and by i. s. to be begotten , the inheritance had been only in the woman , but by the last words ; for if shee had no heirs by her husband , and afterwards marries i. s. the heirs that shee should have by i. s. should inherit : and they were all of opinion , that the inheritance was only in the woman , because the word heir which makes the estate of inheritance , is annexed only to the body of the woman : but if it had been to the heirs which the husband should have got of the body of the woman , there the intaile had been in both , . h. . . and the like law , if it had been to the heirs which the husband should beget of the body of the woman , little. . . horn against widlake , mich. . jac. an action of trespass brought wherefore he broke his close , and spoiled his grass in d. the defendant pleads , that in the close wherein the plaintiff supposes the trespass to be done time out of mind , there hath been a foot-way for all people passing in , by , and through the said close untill such a day , and that such a day the plaintiff plowed up the said foot-way , and sowed it with corn , and laid thorns on the sides of it : and further pleads , that in the said close , neer the said ancient foot-way , the plaintiff , before the trespass supposed to be committed , left , and set out another foot-way for all people who would use that new way ; which way , since it was laid forth , hath been used by all foot-passengers ; by reason whereof , the defendant the time in which , &c. went in the way so laid forth unto such a place , &c. which is the same trespass ▪ &c. and demands judgment , &c. and the plaintiff demurs , and adjudged against the plaintiff , because the plaintiff made the first wrong in stopping up the ancient way , and had assigned a new way for passengers : and therefore the defendants plea is good by way of excuse as to the plaintiff ; for it is not fit he should punish the defendant against his own agreement . as if there were a foot-way through the close of i. s. over an hedg , and i should remove the hedg into a new place , if passengers in using their way goe over the hedg where it is newly placed and fixed , they shall not be punished for that ; for it arises of the act and wrong of the plaintiff himselfe : and volenti non fit injuria : as if water run by the land of m. and m. stop the water-course , so that it surround my ground ; if now abate this , hee shall not have an action against me for entring into his close , because the stoppage was his own act , and the same law in the principall case . and although the defendant hath pleaded generally , that the plaintiff hath set out a way , and shews not where it is , is not materiall ; for that which is common to all cannot be assigned to any particular person , which was the opinion of the whole court , except justice yelverton . metham versus barker , mich. . jacobi . an action of trespass brought , for that the defendant the first of august , in the fifth yeare , the plaintifs close at l. in the county of suffolke , hath broken , and entred , and spoiled his grass with his cattel , &c. the defendant pleads , that in the time when the trespass , &c. the free-hold of the land where , &c. was in sir jo. t. and that the defendant as servant , and by his commandement , hath entred , and put in his cattell . the plaintiff replyed , that true it was , that the free-hold was in sir john t. but said , that a long time before the trespasse , &c. sir iohn leased the close to the plaintiff at will , by reason whereof he entred , and was possessed untill the defendant did the trespass , and traverses without that , that the defendant by the command of sir io. entred , and put in his cattell ; and the defendant demurred , and adjudged against the plaintiff , for the plea in barre is good , and in no wise avoided by the replication ; for the replication must be good only by way of title : and the plaintiff doth not intitle himselfe to any good lease at will ; for he doth not alledg indeed any seisin in sir iohn , or any possession in him , out of which a lease at will may be derived . and although a declaration may be good to a common intent , and in debt upon a lease , as . h. . is , the plaintiff may declare that he devised . and need not alledg a seisin in himself , when he made the lease , &c. yet when a title is made by barre or replication , as e. . . is , that ought to be certain to all intents , because it is traversable , and because the defendant had made a good justification in law , that ought to be answered by the plaintiff with a good title , to wit , that sir i. t. was seised , and made a lease to him at will , which is not so done ; but it is all one , as if he should have replyed , that robin-hood in barnwood stood , without that by the command of sir iohn , &c. which observe . and this by the opinion of fennor , williams , and cook , being only then in court , and judgment was given accordingly . goodman against ayling , mich. . jac. an action of trespass brought , that the defendant the . of february , . iacobi . broke the plaintiffs house , and took and carried away one brasse chafer of the plaintiffs , price , s. the defendant pleads that the house is parcell of halfe a yard land in p. and that it was holden of h. earl of north , as of his mannor of w. by homage , fealty , escuage , incertain suit of court , inclosure of the park-pale , & rent one pound of comyn , and for the rent behind for three years , and the homage and fealty of th. p. tenant thereof ; the defendant as servant of the earl , and by his command , justified the entry , and taking , &c. the paintiff replies , that the house was held of r. stanley , as of his mannor of lee , without that , that it was held of the earl in manner and form , and upon this they were at issue , and the jury found it was held of the earl , as of his manner of p. by homage fealty , inclosure of the pale rent of a pound of comyn , and no otherwise . and if it seemed to the court that it was not held in manner and form , they found for the plaintiff , &c. and adjudged for the defendant , for although the verdict did not agree with the plea in manner and form of the tenure , yet it agreed in substance in the point , for which the taking was , to wit , that the land was holden of the earl , and that suffices ; for there is difference between a replevin and trespass : for in replevin , because the avowant is to have return , it behoves the avowant to make a good title in all things , but otherwise it is in trespasse ; for there the defendant is bound only to excuse the trespass , and therefore if there be any tenure it suffices ; for if the lord or bayliffe in his right distrains for that which is not due , yet he shall not be punished in trespass , as littleton , . for the manner and form : and . h. . which mark by the whole court : and fleming , justice vouched the , h. . dyer . b. where the issue was , whether a villain regardant , &c. or free : and the jury found a villain in grosse , yet it was held good for the substance of the villianage , and of the issue were found , h. . jac. rotulo , . goodwin against welsh and over , pasch . . jacobi . the plaintiff brought an action of trespass for severall things against the two defendants , and declares to his damage , &c. the attorney for the defendants , pleads non sum informat , and thereupon judgment was given severally for the plaintiff , and writs to inquire of the damages issued out , and were returned : and it was moved , that the writs should not be filed , because the plaintiff at the time of the inquiry did not prove that the goods did appertain to him , but only proved the value of the goods ; for serjeant nichols took a difference between an action confessed , and non sum informat ; for in the first case the property of the goods is also confessed to be in the plaintiff , but it is not so in the other case : for here judgment passes without the privity of the defendant , and only for want of pleading , as in the case of a nil dicit , but by the whole court it was all one . and the plaintiff is not bound to prove the property in any of the cases : and the reason is , because the writ commands only the value to be inquired of , and no more , and that only is the charge of the jury : and the whole court were of opinion , that they themselves as judges , if they would in such case might assesse damages without any writ , if they would trouble themselves , for the writ goes onely , because it is known what damages are , but it is otherwise , when not guilty is pleaded , for then the trespasse is denyed , which must be proved and tryed by the jury , and there both the value and property come in proof ; and observe , the judgement is , that he should recover , and if upon a writ of inquiry he should be bound to prove the property , and fail thereof , it would be in destruction of the first judgement which cannot b. observe this . tailor against markham , trin. jacobi . an action of trespass and battery brought for , &c. the defendant pleads , that he at the time of , &c. was seised of the rectory of , &c. where the battery was supposed in fee , and that at the time in which , &c. corn was severed from the nine parts at the place aforesaid , and because the plaintiff came to carry away his corn , and the defendant stood there in defence of his corn , and keeping the plaintiff from taking it away , and the hurt that the plaintiff had , was of his own wrong , &c. the plaintiff replies , that it was of his own wrong with the such cause alledge , &c. and the defendant demurred in law , and adjudged for the plaintiff , for that generall replication is good , and doth not behove the plaintiff to answer the defendants title , because the plaintiff by his action doth not claim any thing in the soil or corn , but only damage for the battery , which is altogether collaterall to the title , but when the plaintiff makes a title by his declaration to any thing , and the defendant shall plead another thing in destruction thereof , or if the cause of action in such cases , the plaintiff must reply specially , and not say without such cause , as it is in h. . trespasse brought for taking a servant , the defendant shews that the father of him that the plaintiff supposes to be the servant , held of him in knights service , &c. and died seised his heire , the servant being within age , by reason whereof he seised as his ward , as it was lawfull for him to do , and there the plaintiff replied that he did it of his own wrong , and without such cause , and disallowed by the court , because he did not answer to the seigniory , to wit , that he did that of his own wrong , without it , that the father of him , that is , supposed to be the servant , held of him in chivalry , and the reason was , because the plaintiff by his action made title to the servant , according to e. . and judgement given accordingly . allbon against dremsall , mich. jacobi . the plaintiff declares in an action of trespasse , that the defendint the twentieth day of february , jac. did break the plaintiffs close , at &c. called sandy heath , and entered it , and spoiled his grasse , and kiiled took and carried away a hundred conies , and also that the defendant the same day the free warren of the plaintiff at sandy aforesaid did enter , and chase without license , and killed fifty conies , and took & carried them away to his damage of , &c. the defendant to the whole trespasse , except the entring and breaking of the close called sandy heath , not guilty , and in issue joyned upon that , and as to the breaking the close the plaintiff ought not to have his action , for he said , that william lord russell , and elizabeth his wife , were , and yet are seised in fee , in the right of his wife , in a certain peice of heath , containing ten acres in sandy close adjoining , & on every side separated from the place called sandy heath & that they , and all those whose estate they have in part , in that peice of heath , have used to have for themselves and farmers of the said peice of heath , and for their servants a passage unto the said peice of heath , and from the said peice , in , by , and through the said close called sandy heath , in which , &c. the whole year at their pleasure to take and receive the profits of the said peice of heath , and the defendant further sayes , that long before the trespass supposed to be committed , very many conies were wandering in the said peice of heath , and divers cony holes were there made , in which the said conies did delight to live in , and at the time in which , &c. they were in the said peice of heath , eating the grasse growing there , and the defendant , as servant to the lord russell , and by his command , the time in which , &c. in , by , and through , the said close , in which , &c. towards , and unto the said peice of heath , did walk over to hunt , and take the said conies , in the said peice of heath , then being and feeding , as it was lawfull for him to do , which walking in , by , and through the said close , in which , &c. for the cause aforesaid , is the same breaking the close , and entring thereof , whereof the plaintiff complains , and averres that the place by which the defendant walked for the cause aforesaid to sandy heath , in which , &c. was the next passage , by which he could go to the said peice of heath ; to which the plaintiff demurres ; and adjudged for the plaintiff , for a passage , is properly a passage over the water , and not over land , and the defendant ought to have prescribed for the way , and not for the passage , for he ought to have observed the usuall words , and such as are known in the law for a prescription , and usage is for a way , and not for a passage , and see assis . . and h. . . b. secondly , the prescription is not good , because he doth not shew from what place , nor to what place the passage or way is , for although a way be in grosse , yet it ought to be bounded , and circumscribed to some certain place , especially when it appears to ly in usuage , time out of mind , for that ought to be in a place certain , and not in one place to day , and another to morrow , but constant and perpetuall in one place . thirdly , the plea in barr is not good , because he doth not shew what manner of passage it was , whether a foot-way , or horse-way , or cart-way , and therefore it is altogether incertain , and judgement given accordingly . troughton against gouge , mich. jacobi . an action of trespass brought , for entring into the plaintiffs close , called wild marsh , and for mowing and cutting five loads of hay , to his damage of , &c. the defendant saith , that the close aforesaid did contain twelve acres , whereof a long time before the trespasse done , and at the time the mayor of , &c. of lincoln were seised in fee , and being so seised , leased it to the defendant for years before the trespass committed , by reason whereof he entred and was posaessed untill the plaintiff claimed by deed of the maior , &c. for life , whereas nothing passed and entered , and the defendant the time aforesaid re-entred as it was lawfull for him to do , the plaintif replied , that the close in which the trespass is supposed to be done , contained one acre , and three roods , and abutts it east , west , north , and south , and one of the abutnals were upon the twelve acres mentioned in the plea in barr , and concludes it is another close , the close mentioned in the plea in barr , containing twelve acres , whereupon the defendant demurres , and the court were of opinion at the first opening the matter , that the replication was not good , because it answers not to the matter supposed in the barr , for when the plaintiff in his declaration gives the place a certain name as he hath , and the defendant by his plea in barr agrees , the place as here he doth , to wit that the close aforesaid , to wit , wild marsh , is the inheritance of the mayor , &c. and he as lessee to them for years makes a title to himself , the plaintiff ought to answer to the title , or avoid it , which he doth not by his replication , for the plaintiff by that indeavors to assign a new place , which he cannot do when they are agreed of a place before , and therefore he ought to have pleaded , that there were two closes called wild marsh , the one containing twelve acres , as the defendant had alledged , and the other containing one acre , and three roods , whereof the plaintiff was seised , and that the close where the plaintiff supposed the trespass to be committed , and the close called wild marsh , contained one acre , and three roods , which mark : and see e. . lee against atkinson and brooks , hill. . jacobi . an action of ba●tery brought against the defendants at london for assaulting the plaintiff , to wit , in such a parish and ward , and beate , wounded , and evill intreated him , to his damage of an hundred pounds ; the defendant as to the force pleads not guilty , and as to the residue , that atkinson the time in which , &c. at gravesend in the county of kent was possessed of a gelding , and being so thereof possessed , the plaintiff the time in which , &c. at gravesend , &c. came to the defendant to hire the gelding for foure shillings for two dayes , in which the plaintiff would ride from gravesend aforesaid to nettlebed in the same county , and from thence to gravesend within the sayd two dayes , by reason whereof the defendant for the consideration aforesayd , the time in which , &c. lent the gelding to the plaintiff , who had it , and in a direct line rode for the space of a mile to nettlebed aforesaid upon the gelding , untill the plaintif , the time when , &c. intending to deceive the defendant of his sayd gelding , went forth of his way to n. and rode towards london , by reason whereof , atkinson in his owne right , and brook as his servant , came to the plaintif , and at the same time in which , &c. required the plaintif then riding upon the sayd gelding towards london , to deliver the gelding , which he refused to doe , by reason whereof atkinson in his owne right , and brook as his servant , and by his command the time in which , &c. to repossess himselfe of the sayd gelding , layd hands upon the plaintif and took him from the horse back , and would have taken the gelding from the plaintif , by reason whereof the plaintif did by force and armes assault the defendant , and by strong hand kept the gelding , by reason whereof the defendant did defend the possession of the horse against the plaintif , as it was lawfull for him to doe : and further say , that if any damage hapned to the plaintif , it was of his owne assault , and in defence of the possession of the gelding , and traverses that he was not guilty in london , or any where else out of kent , &c. and the plaintif demurs , and adjudged for the plaintif , for the battery is confessed and did arise from the evill behaviour of the defendant , for it appeared by their owne plea in barr , that the plaintif had hyred the gelding for two dayes , and that they within these two dayes disturbe the plaintif of his possession of the horse , and thrust him off his back , which was not lawfull , for the plaintif had a good speciall property for the two dayes against all the world ; and although the defendant pretends that the plaintif had misbehaved himselfe in riding to another place then was intended , yet that was to be punished by an action of the case , but not to seise the horse : which observe . knieveton against roylie , mich. . jacobi . an action of trespass brought for breaking the plaintifs close called g. in woodthorpe in the county of derby , to the damage of , &c. the defendant pleads that the close was known as well by the name of g. as by the name of d. and that it was and had been , time out of minde , parcell of the wigenworth , and pleads his freehold in the mannour : the plaintif maintaines his declaration , and traverses that the place where , &c. was not parcell of the mannor , and upon this they are at issue , and a venire facias awarded of woodthorpe onely , and moved in arrest of judgment by the defendant , the verdict being for the plaintif , and urged that it was a mistryall , for the venire facias ought to have been as well of the mannor as of woodthorpe , for although the parties be agreed , that the place where the trespass was committed lyes in woodthorpe , yet that being supposed indeed to be parcell of the mannor of wigenworth , the venu of the mannor by intendment have a more perfect and better knowledge of it then the villiage of woodthorpe onely , which was granted by the whole court , and a new venire awarded to try the issue anew . dowglas against kendall , mich. . jacobi . the plaintif declared , that the defendant the . of january , . jac. by force and arms thirty loads of thornes of the plaintifs ready to be carryed , in a place called the common wast at chipping-warden in the county of norfolk , did take and carry away , to the plaintifs damage of ten pounds , the defendant pleaded not guilty to all but to ten loads ; and as to them that the place where , &c. contained one acre of pasture , and that one william palmer was seised in fee of a messuage and three quarters of a yard land in c. aforesayd , and that he and those whose estate he had in the sayd messuage , &c. time out of minde , were used to have for their farmers , &c. all the thornes growing upon the sayd acre of pasture to their use to be imployed and spent upon the sayd messuage , &c. as appurtenant thereunto ; and the sayd ten loads were growing and unjustly cast downe by the plaintif upon the sayd acre of wast , and being ready for them to carry , the defendant as servant to palmer , and by his command , took them and carryed them away and imployed them upon the house , as it was lawfull for him to doe ; the plaintiff by protestation that palmer and such , &c. time out of minde , had not the thornes growing upon the sayd acre of pasture parcell of the wast , and that sir richard saltonstall was seised of the mannor of chipping-warden , whereof the common wast was parcell in fee ; and that he the . of january , the sixth yeare of k. james , granted license to the plaintif to cut and carry away thirty loads of thornes mentioned in the plea in barr growing upon the wast , by reason whereof they cut those ten loads of thornes , growing upon the wasts , and they were ready to be carryed , by reason whereof they were possessed thereof untill the defendants took them away ; and upon this replication the defendants demurred ; and adjudged against the plaintif , and there was a differance taken by the court , where a man claimes reasonable estovers in anothers soyle , and where a man claimes all the thornes in anothers soyle , for in the first case if the owner of the soyle shall cut downe the thorn●s first , he that hath title to the estovers cannot take them , for the property and interest of all the thornes continues in the owner of the soyle , and the other hath onely common there , and if the owner of the soyle cut them downe all , he that should have the estovers shall have an action upon the case onely , and not an assise , for when all the wood is destroyed it cannot be put in seisin , as the abridgement of the assise is , fol. . and so it appeares by sir thomas palmers case , co. lib. . fol. . and if one grant an hundred cords of wood to be taken at the election of the grantee , and the grantor or an estranger cut downe the wood , the grantee cannot take the wood but must supply his grant out of the residue , for the grantee hath but an especiall interest in part of the wood and not in all , but now in this case the defendant in right of palmer claimes all the thornes , in the name of all the thornes growing upon the sayd acre of pasture , and if he hath all , sir richard s. cannot have any , and so by consequence cannot license the plaintif to cut any ; and so the whole interest is in palmer , and it is not in the nature of estovers , for estovers is but parcell of the wood , and that to be taken to a speciall purpose ; and in this case it was agreed , that although the defendant had alledged an imployment of the estovers , yet since the defendant had claimed all the thornes and trees , the imployment is not traversable , for he that hath the generall interest and property in trees by custome or prescription , cannot be restrained but may use them at his pleasure ; and see e. . . and adjudged accordingly . massam against hunt , mich. . jacobi . a copi-holder of a messuage and two acres in fee. the lord grants and confirms the messuage and lands with the appurtenances to the copy-holder in fee : and whether he to whom the confirmation was made shall have by the usage as a copy-holder common in the wasts of the lord , was the question , and adjudged he should not ; for the copy-holder by that confirmation is extinct and infranchiz'd , for the words , with the appurtenances will not create a common ; for at first the common was gained by custome , and annexed to the customary estate , and is lost and perished with that ; for common of its own proper nature is incident to a copy-hold estate . farmer against hunt. hilar. . jacobi . an action of trespasse brought for chasing the plaintiffs cattle in such a close ; the defendant justifies taking damage fesant in his free-hold : the plaintiff replies , and shewes one grant of common in the place where , &c. by the defendant to the plaintiff , and that afterwards the defendant had erected a reek of corn , and the plaintiff put in his beasts to use his common , and the defendant chased them : but note , that the plaintiff in his replication in pleading the grant of the common by indenture , did omit the bringing it into court. and by all the judges the chasing of the cattell by the defendant is not lawfull , for by such means he may defeat his own grant ; for by the grant of common in such a place , the grantee may use the whole common : and then when the grantor erects a reek of hay upon part of the common he had granted , he will diminish the common , and tend to the enfeebling of his grant , which ought not to be ; for the beast ought to range over the whole place , and eate the hay without doing any wrong ; for the wrong did first begin in the grantor , who is the defendant , of which he shall never take advantage . and whereas hee hath erected one reek of corn , hee may erect twenty , and so the beasts shall have no liberty of pasture there ; but because the plaintiff did not shew to the court the indenture of the grant , which is the ground of his title ; for that very cause judgment was given against the plaintiff . dvrant against child , hillar . . jaco . an action of trespasse brought for chasing the cattell of the plaintiff , and shews what cattell , and that the trespasse was done at b. to his damage of , &c. the defendant justifies the chasing in one close called m. in b. which is his free-hold , and that the cattell were there damage fesant . the plaintiff replies and shews , that one b. is seised of one close called catley in d. in fee , and made a lease thereof to the plaintiff for years : and that the defendant is seised of one close called fursey in fee , which lies next adjoyning to the close called catley ; and that the defendant , and all those whose estate he hath in fursey close , have used time out of mind to repair the fence and hedges betweene catley close & fursey close , which fursey close doth next adjoyn to the close called m. where the cattel were chased , and shews that the plaintiff put his cattell in catley close to feed the grass there , which by default of inclosure escaped into fursey close as above ; but he said that between catley close and fursey close , there is a little brook ; which brook at the side of catley close had a banck next adjoyning to it ; which banck the lessor of the plaintiff , and those whose estate they have , &c. have used time out of mind , &c. to repair . and that the brook at the side of fursey close had another brook next adjoyning , which the defendant used to repair , and shews because the plaintiff had not repaired the banck ; on the side of catley close the cattell did escape into fursey close , and stayed in the close called m. by reason whereof the defendant chased them , as it was lawfull for him to doe ; whereupon the plaintiff demurres , and adjudged for the plaintif ; for the defendant had pleaded a good barre , and the plaintif had replyed a good replication , and had removed the fault from himselfe , and laid it upon the defendant by his negligent inclosure between catley and fursey : and the rejoynder doth not confess and avoid the replication , but perplexes the matter by adding one point of prescription on the plaintiffs part , that he ought to repair one banck between catley and fursey , upon which an issue could not be taken , for then two prescriptions should be an issue together , which cannot be , no more then two affirmatives , as the . h. . . and also the matter contained in the records doth not answer the matter contained in the replication , but by way of argument only : and whether that be true , is no matter in evidence against the plaintiff , who is bound to prove his replication true . for the plaintiff saith , that catley and fursey doe lye together , that is , without any space between them . and the defendant in his rejoynder saith , there is a banck between catley and fursey , which if it be so they do not lye together : but the defendant ought to have traversed the prescription alledged by the plaintiff , which had made an end of all the matter , which observe was by the opinion of the whole court. svtcliffe against constable , trin. . jac. ch. constable . eliz. was seised in fee of the mannor of east-hatfield in the county of yorke : and by his indenture infeoffes h. remingham , paying for certain lands parcell of the mannor , l. at two feasts , with a clause of distresse , if it be behind by the space of . days . ch. . elizab. by indenture bargains and sells the l. rent to the plaintiff , which was inrolled , by reason whereof he was seised of the rent for the life of ch. and being so seised , loses that part of the identure sealed by remingham ; which the said day , to wit , the . novemb , . eliz. came to the hands of the defendant , who by force and armes teared the seale of the indenture against the peace , &c. to his damage of l. the defendant pleads that ch. hath not granted the mannor of e. to remingham , paying the rent , &c. in manner and form , and the plaintiff demurres upon this plea : and it was argued that the bar was good , which is a direct traverse to the title of the plaintiff , to destroy the ground of the plaintiffs action ; for if no rent were granted , then the indenture concerning which the plaintif complains , did not belong to the plaintiff ; for it passes not to the plaintiff , but as an incident to the second grant , of necessity to make good his title : as the lord buckhursts case , co. . & . e. . . in assize of rent , the plaintiff made his title by deed of a rent charge , it was a good plea to say that nothing passed by the grant , because the issue is taken upon the speciall matter , and not the generall ; but in an assize brought of an office , it is no plea to say there is no such office , for that amounts to no more but that he hath not disseised him , . e. . in trespass for taking away of writing , it is no plea to say that he never had such a writing , but must plead not guilty : so in an action of trespass for goods , it is no plea to say , that the property of them was to an estranger , and not to the plaintif , because by that plea hee denies not but that the plaintif was in posaession , which is sufficient to maintain the action , . h. . . which books prove that the plea in bar is not good , for the defendant destroys the plaintifs action , but by way of argument : and the rent by such action is not demanded , but damages for tearing the indenture , and so the title of rent is not in question , and exceptions were taken to the declaration . first , the action was brought for tearing the counter-part , by which the rent was not created : and the indenture is not expresly granted to the plaintif , but the rent of l. only is bargained and sold ; and by that the counter-part that pertains to remingham , doth not pass to the plaintif as an incident ; for it is not the originall deed by which at first the rent was reserved , which was granted by all but the cheife justice , for he said that the counter-part waited upon the interest , and was good evidence for that : secondly , the plaintif had not averred that ch. for whose life the rent was granted , was alive at the time of tearing the indenture ; and if c. was dead , the indenture pertained to the defendant of right , as heir of ch. for so much appeared by the plaintifs own shewing , which was granted . and thirdly , the plaintiff shewed not that ever hee was posaessed of the deed but by way of argument , to wit , that he casually lost it , which is not sufficient ; for none shall have trespass but he who is in actuall posaession , which was also granted by the court. fourhly , the counter-part whereof the plaintif complains , by the plaintifs own shewing , contained as well a warranty as the rent reserved : and therefore without a special gift made of that deed by ch. to the plaintiff , that deed doth not pass by law to the plaintiff , as it is adjudged in lord buckhursts case . fifthly , if ch. the father be dead , then the writing hath lost his force , as to the rent ; for by his death the rent is determined , and therefore of necessity the plaintiff ought to averre the life of ch. for no action lies for a deed that is determined , and for these reasons the plaintiff did discontinue his action . an action of trespass was brought for entring into a mans house , and continuing there divers dayes , &c. and after a tryall and verdict for the plaintiff , yelverton moved in arrest of judgment , and shewed for cause that the plaintiff had declared with a continuando for breaking his house , which he could not do ; for the entring is one act done and ended at the going out again : and therefore if he re-enter , it is a new trespass , and the continuando is only alledged for the aggravation of damages , r. . . . e. . . . e. . . that a continuando cannot be for breaking the house : but doddridge and haughton justices , the rest being silent , were of opinion that it might be alledged , that a continuando ; for although it might be that if hee went forth , and re-entred , it should be a new trespass : but if upon his first entry he continued divers dayes , it might be alledged with a continuando : and see for that mich. . el. in the common pleas , fol. . if a disseisee re-enter he shall have an action of trespass against the disseisor with a continuando : and so is fitzherberts nabrevium . l. that a continuando may be laid as well for breaking a house as eating the grass , and so is . e. . . and . h. . . by the opinion of gapley . geush against mynne , pach. . jacobi . an action of trespass brought , wherefore by force and armes , the close of the plaintiff did break , &c. the defendant justified , by reason there was a report that a vermine called a badger was found there to the great damage of the inhabitants ; by reason whereof he uncoupled his beagles in the place where , &c. and hunted there , and found the badger , and pursued him untill he earthed in the place where , &c. by reason whereof he digged the ground , and took the badger , and killed him , and afterwards hee stopped up the earth again , which is the same trespass , and demands judgment ; whereupon the plaintiff demurs : and upon reading the record , scamber of the inner temple was for the demurrer , and that the defendant could not justifie as this case was . and first , he was of opinion that the common law warrants hunting such noysome beasts , although it be in the lands of another , because it is good and profitable to the common-wealth that such hurtfull beasts should be extirpated , according to the . e. . . and fishermen may justifie their nets upon anothers land , . h. . . . h. . . a man may justifie entring into a house to serve a subpaena , . h. . . a man may justifie the entring into anothers land with the sheriff to help him to distrain , but otherwise it is for things of pleasure , as . e. . . b. you cannot justifie the entry when your hawk hath killed a pheasant in anothers land : and so for hunting of hares or conies in the free-hold of another : but although the law allows and permits such entries as aforesaid , yet the law requires , that such things shall be done in an ordinary and usuall manner , as . h. . . a commoner cannot digge the land to make trenches , although it be for the benefit of another ; and this is confirmed and explained by the statute of . eliz. cap. . for although that statute gives reward for the killing of vermins ; yet the statute further saies , that it must be with consent , and with reasonable engines and devices , . r. . barr. . grant of fish in the pond ; one cannot dig the land and make a sluce , but must take with them nets : and so , if a man grant to me all his trees in such a place , i i cannot grub up the roots out of the earth , if there be any other way to take them , but if there be no other way , then it is otherwise , as ed. . . a. a grant to put a pipe in my land , and afterward it is stopped , i may dig to mend it by the opinion of the court , and therefore there being an ordinary course , to wit , hunting , to kill the badger , the digging for that is unlawfull , and the action will well ly mich. . and eliz. . nicholas case expressely for a fox , and fenner held it was not lawfull to break a hedge in the pursuit . miles against jones , pasch . jac. miles brought an action of trespasse against jones , wherefore by force and arms his goods , &c. the defendant pleads that the plaintiff , jacobi . acknowledged a recognisance of . l. at mich. at which day he did not pay it , and that two years after the recognisance was extended upon his goods , because the monies were not satisfied at the day , nor at any time after , the plaintiff replies , that they were paid in the sixth year of james , and desires this , that it may be inquired onely by the countrey , and the defendant likewise , and upon the triall , it was found for the plaintiff , and it was new moved in arrest of judgement , by goldsmith , that there was no issue joyned , for an issue ought to be joyned upon a thing alledged by the party , doyly against white and webb , trin. jacobi . doyly brought an action of assault , battery , and imprisonment , of his wife , against white and webb . the defendant pleads a speciall justification , to wit , that in november , jacobi , an action of trespass was brought in the common pleas , by one a. against julian goddard , and upon the generall issue it was found for j. g. and judgement given for her , and afterwards , and before execution , j. g. takes to husband the now plaintiff , and afterwards brings a writ of error in the kings bench , and upon a scire facias against the said julian , the judgement in the common pleas was reversed , and costs given to a. the plaintif in the writ of error , and aftewards a capias ad satisfaciend . was directed to the now defendants to take the said i. g. by force of which , the said defendants took the woman of the now plaintif , with an averment that the said i. g. and the wife of the now plaintif , were one and the same person , and the plaintif demurres upon this plea , and yelverton moved , that this justification was not good for divers causes ; first , when the sherif is to execute a process , he is to do it duly , and upon the right person at his perill , and for that see h. . . b. if the sherif take the goods of another in execution , he is a trespassor , e. . . a. if a capias be to take i. s. and there be two of the same name , he ought to look to take the right man at his perill , and as he ought to take notice , so he must pursue his authority , and for this see . e. . . b. if a capias issue out against i. s. the son of a. and he take i. s. the son of b. false imprisonment lies against him , and in a case when his warrant is against i. g. there is no such j. g. for by her marriage with the plaintiff she had another name , and he is therefore a trespassor for the taking of j. doyly , and his averment cannot help him , because it agrees not with his warrant , and so cannot be intended to be the same person , but if the variance was in the name of baptisme onely , it would be otherwise , and secondly , although the party had admitted her to have the same name , yet the sherff in pleading had taken expresse conusance of the contrary , and had made it appear to the court , that it was not according to his authority , and therefore he shall be punished , but the whole court was of a contrary opinion , for first , the scire facias was according to the judgement in the common pleas , and well then might all the subsequent processe be according in course of law , but if the husband had come upon the scire facias , and shewed how that she was covert , then the action ought to be against both of them ; and secondly , the parties themselves in all the proceedings throughout , have all admitted that she is the same person , and that she had the same name , and therefore this differs from the e. . . and therefore they shall be concluded from saying the contrary , and although the sheriff had shewed the marriage , that was but a bare allegation , and suggestion of the sheriff , and it appears not judicially whether it were so or no ; and thirdly , it would be dangerous for the sherif to return a non est inventus , for because the parties have admitted her name to be so in all the proceedings , the sheriff shall be estopped also , as the h. . . and then an action of the case would ly upon the false return , or if the woman should be in the company of the sheriff , and the party shew her to the sheriff , she might escape . carrill against baker , trin. jacobi . the plaintiff brough an action wherefore by force and arms , he entred into his warren , and digged his land , and chased his conies , and took them , the defendant pleads to all , except to the entring the warren , chasing the conies , and digging the land , not guilty , and as to the entring of the warren , chasing of the conies , and digging the land , he pleads an especiall justification , to wit , that he had common there time out of mind , and because the plaintiff stored the borrows there with conies , and made new holes , by reason whereof the defendants sheep feeding there , fell into them to their great damage , the defendant did with a ferret chase the conies , and stopped up the holes with the earth digged out , &c. and upon that plea , the plaintiff demurred , and george crook was of opinion that it was not a good justification , and the question was single , whether a commoner might drive out conies which surcharged the land , and he conceived he could not , for the freehold and possession of the land is in the terr-tenant onely , and the commoners cannot intermeddle with it , for a commoner hath onely the grasse of the land , and not absolutely neither , to do with it what he pleases , but onely to take it with the mouths of his cattel , and for this see h. . . a. and h. . . and h. . . the espleas in a quod permittat is alledged in taking the grasse with the mouths of his beasts , and for that see assis . . . e. . . and ed. . . if a stranger put in his cattell , the commoner cannot have an action of trespass , and h. . . ruled , that if a commoner dig the land to make a trench , he is a trespassor , but he may drive out or distrain for doing damage , and h. . . h. . . and . h. . . a. because after a manner he hath interest in the grasse , which is spoiled and consumed by the cattell of the stranger , but although he may drive out and distrain the cattell of an estranger , yet he cannot meddle with the lords cattel , or the terr-tenants , although there be more then reasonable , as in fitzherberts na. brev . . d. and e. . . if the lord surcharge the common , the commoner may have an assise against the lord , and if he be a copy-holder , he shall have an action of the case , rep. . but the lord may distrain h. . ja. kings bench , a prescription for a commoner to kill conies of the lords is not good , and he cited pasch . eliz. kings bench rotulo . . belly and laughorns case , the lord may use the sale as he pleases , but as his case is the commoner although tenant of the land , cannot kill the conies with his ferret , for a free warren in such a precinct , is a charge upon the land , in what hands soever it comes , but if he hath a warren adjoyning , and the conies come into the lands of another , out of the precinct , then he may kill the conies , and he cited boslers and hardies case in the common pleas , and for an express authority he cited old and conies case , hill. eliz. and sir robert fitcham he was against it , and he agreed he could not kill the conies , but as to the digging he took this difference , if a commoner makes any thing de novo in the land , he is a trespassor as it is adjudged in the case of a trench before , and the like ; but if a commoner amends and reforms a thing abused , it is no trespass , and therefore , if the land were full of mole hills , he may dig them down , h. . and assis . if the lord make a hedge the commoner may pluck it down , e. . . a. see if the lord make a pond in the land , the commoners may dig and let the water out , and therefore holes that were made long , in a hurt and damage to the land , the commoner may put the earth digged out , again into its place . secondly , the defendant hath shewed that the cony holes were made by the plaintiff himself , and he shall never take advantage of his own wrong : and thirdly , the law will allow every man to preserve his inheritance , and it cannot be preserved any other way , for if he should bring his assise , yet he in that shall recover but seisin , and no reformation of the trespass , and wrong done , and the opinion of the court seemed to incline for the plaintiff , and doddridge justice said , that a lord or his feoffee may make new conie-borrows lawfully , for they are necessary for the preservation of the conies , but one fault found by justice haughton , in the pleading nothing was done , for the plaintif declared for entring into his warren , the defendant pleads to all , but the warren digging , and chasing not guilty , and as to the digging and chasing , he justifies for common here , but answers nothing as to the warren , neither by confession or traverse , and therefore all was discontinued , as herlackendons case is , co. . rep. and to this the whole court , fleming being absent agreed . waldron against moore , trin. . ja. the plaintiff brought an action of trespass against moore , wherefore his close called gerleford at rentesbury in the county of devon , by force and arms hath broken and entred , &c. the defendant pleads that a long time before the trespass was supposed to be done , one john w. was seised of three hundred acres of land in r. aforesayd , of which the place in question called g. is parcell , and that h. . the sayd john whithing , reciting that whereas n. de la moore , e. . the plaintiffs ancestor , son and heire of h. de la moore , grants to william de la moore , corsum aque , which runs from w. thorow the middle of the land of the sayd m. and shews further , that by meane discents it discends to the defendant , &c , and so justifies : the plaintiff replies if w. s. was seised of the place where , &c. and made a lease thereof to him for yeares ; and traverses that the three hundred acres of land were parcell , and issue joyned upon that , and found for the plaintiff ; and it was moved in arrest of judgement , that the defendant had not made any answer to the plaintiff , and so no issue joyned ; for the plaintiff layes the trespass in g. in l. the defendant sayes he was seised of three hundred acres , of which the place , &c. was parcell , but he conveys no title to himselfe , but by a course of water thorow the middle of the land of m. but whose land that was it doth not appeare , and is another thing ; and therefore an issue upon that which the defendant doth not claime is voyd , and although issue be joyned yet it is not helped by the statute of jeofailes of eliz. or h. . for it is as no issue when it is of a thing not in question , but if the issue had been of a matter in question , although ill joyned , yet it is ayded as nichols case is , rep. . upon payment pleaded without deed : and doddridge and crooke , justices agreed to that , but haughton seemed to incline that it was an issue , and so helped by the statute . fvller against pettesworth knight , mich. . iacobi . fuller brought an action of trespass against pettesworth and his servant , for breaking his close , and taking one cow in d. in the county of b. one of the defendants plead not guilty , the servant pleads that the plaintiff holds of sir peter p. as of , &c. in the county aforesayd ; and for services behinde , by the command of his master , he seised the cow , &c. the plaintiff traverses , &c. and one venire facias was awarded out of both the villiages , and being found for the plaintiff , it was new moved in arrest of judgement by finch of grays inne , that two venire facias ought to have been awarded , because the issue is of things in severall places , for if there be severall issues in one place , one jury shall be onely impannelled , but if in severall places for severall things locall , severall juries shall be , but the whole court held that one jury onely should be impannelled , and one venu onely should be awarded out of both the places ; and it is all one as if it had been in one place , but it had been otherwise if in severall counties , as eliz. dame petts case , mich. . iacobi . in an action of trespass brought by the lady petts , upon not guilty pleaded , the jury being at bar , the matters following came in question upon the evidence by haughton and the other justices : if a. be seised of a great close , where , &c. and a stranger enter and occupy part of the close , yet notwithstanding a. continues the posaession of the residue , whether this shall preserve his possession in the residue ; and he shall be judged to be in possession of that , because it is an intire thing , e. . . and e. . . seisin of part of the services is the seisin of the whole , and so is bettisworths case , . rep. the possession of the house is the possession of the land , for the lessee against his lessor of that which passes by one demise : but if a stranger enter and sever part by metes and bounds , nothing is wrought by the possession of the residue : another question was this , a lessee for yeares of ten acres , paying twenty shillings rent , the lessee is outed of parcell , yet he payed all the rent to him in reversion ; the lessor having notice of the enter whether this protects the reversion , so that nothing is gained by the entry but the interest of the lessee , and shall be no disseisin : and yelverton at the barr was of opinion , that it should be no disseisin , rithen , sect. . saith , that so long as the particular tenant continues his possession , so long is the reversion in the lessor ; for in such case as to the lessor the lessee shall be alwayes deemed in possession by force of the lease ; and the reason why the lessee shall be adjudged in posaession of all as to the lessor , is , because the lessor cannot have notice of the alteration of the posaession ; for when the lessee by his owne act or sufferance doth a thing in alteration of the posaession , of which by common intendment the lessor cannot have or take notice , there the law will not prejudice the lessor : and see for that , farmers case , in the third rep. . if tenant for life levy a fine having land in the same villiage , this shall not bind the lessor , if five yeares pass before he take notice of what land the fine is levied : and the same law if tenant for life make a feofment to one who hath land within the same village levies a fine , and in this cafe if the lessee hath continually payd all his rent , the lessor cannot intend or suspect , but that the lessee is absolute tenant of the whole : and in farmers case it is sayd , that if the lessor levy a fine , the disseisee is barred without claime , for it is impossible but he to whom the wrong is done shall presently know it . but if he that hath the particular estate by grant or trust reposed in him , shall secretly practice , although he pay the rent and continue posaession , yet it is otherwise : but the reporters opinion was , that if in the principall case no rent had been reserved , then the reversion had been devested by the entry , for there had been no act done to mislead or hinder the knowledge thereof ; and also although rent be reserved and all payd , yet if he had express notice thereof , the reversion had been devested , and secondly , if it should be a disseisin a great mischeif would follow , for if a discent should be , it would take away the lessors entry and yet no fault in them , because in common presumption the lessee alwayes continued tenant ; but cook of a contrary opinion , for he said , it could not be denyed but that the lessee is out of the posaession , and then it follows of necessity that the lessor must be out of his reversion : and as to notice to make his claime , he must take notice at his perill , m. dyer , . b. but note , that this is when the law intends that he may take notice , which it will not intend in this case : haughton was of opinion that it was a disseisin , and doddridge sayd , it would be mischeivous if it should . hill. . iac. in the common pleas , that if in the common barre , in trespass the place in the common barre is alledged to be blackacre , the plaintiff may plead that it is his free-hold : and then it was held by the whole court , that an abuttall of one side is sufficient without alledging it of every side . swaine against becket . an action of trespass brought for cutting down of trees : and upon a speciall verdict the question was , that whereas there is a mannor wherein are copi-holders for life , which have used to lopp trees growing upon the copy-holds for their necessary fire , and repairing of their customary tenements ; the lord of the mannor maketh a lease of the mannor for yeares , excepting the trees : the lessee of the mannor granteth a copy for life , the copy-holder loppeth the trees growing on his copy-hold , whether by law he might do it or no was the doubt of the jury . and it was held by all the court that the copy-holder might lopp the trees , because he is in by the custome , which is above the lords estate after he is admitted , and that the copy-hold doth not depend upon the lords interest : and that the trees excepted , and the soil remained parcell of the mannor , because the lease was but for years : but if the lease had been for life , it had been otherwise , because it had been severed from the mannor . and whereas it was objected , that the tenant should not be in a better condition then his author , it was answered that a lord of a mannor at will , may grant a copy for life , or in fee , and it is good . if the lord cut down all the trees , so that the copy-holder can have no lopping , he may have his action upon the case against the lord , as it was adjudged in gosnolds case . if the lord sell away his waste , and the copy-holder dye , and the lord grant a new copy , he shall have his common . if the lord sell away the trees , so that the copy-holder cannot have estovers because the bargainee felleth down the trees , the copy-holder shall have his action against the bargainee : common and lopping are incident to the copy-hold , judgment for the defendant . harris against ap-john . an action of trespasse brought ; the defendant pleads not guilty , and verdict found for the plaintif . and in arrest of judgment it was alledged that the venire facias was de placito debiti : and so also was the habeas corpus , and it should have been de placito transgressionis : and it was amended by the whole court. mynwinnock against bligh . trin. . jacob. rotulo , . an action of trespasse brought for breaking the plaintiffs close , done septemb. in the . year of king james : the defendant pleads as to part of the trespasse in award , and that the defendant submits himself to the award the . yeare : and that the arbitrators in the . yeare , which was before the submission made the award , and traverses that he was guilty of the trespasse after the award made : and the plaintiff replies , that the arbitrators the said day in the . year , made not any award , &c. and after tryall exception was taken , that the issue was ill joyned , being of a thing that was void , yet notwithstanding judgment was given for the plaintiff , and they resembled to a payment upon a single bond , and conditions performed at a feast , not contained in an obligation . trin. . jac. rotulo , . an action of trespass brought , wherfore by force and armes his goods and chattels , to wit , a thousand posts , and forty railes took and caryed away , and damages given intire , and after a verdict exception taken , because rales was pretended to be no latine word , nor to have any exception , but judgment was given for the plaintiff . dvncomb against randoll , hil. . jac. rotulo , . three issues in trespasse : one issue was upon a prescription , to wit , that they had accustomed to have for himselfe his farme and tenants of the same mannor , common of pasture in the said , &c. for all his sheep which are levant and couchant in and upon the demesne lands of w. which lye , and are in a. aforesaid every yeare : and exception was taken for the uncertainty , because it did not appear that those were demesne lands which lye in a. for it was ill pleaded , and ought to be averred ; but notwithstanding it was held good after a tryal , and judgment was given for the plaintiff , and in this case an exception was taken to the venire facias , because it was of a. and of the mannor of c. and because it was made in this manner , to wit , de visu de a. and de visu manerij de c. but it was disallowed , because against the form used in the common pleas. downes against skrymsher , trin. . iac. rotulo , . an action of assault and battery brought , and there was a demurrer upon the evidence : and the case was , that the defendant the day specified in the declaration said , that the plaintiff assaulted the defenant , and in defence of himselfe justifies the beating ; the plaintiff replies that he did it of his own wrong , without any such cause : and in the evidence the defendant maintained that the plaintiff beate him the day mentioned in the declaration , and in the same place . and the plaintiff perceiving that , gave in evidence that the battery was made another day and place , to wit , &c. which was the cause of the speciall verdict ; for if there be two batteries made between the plaintiff and defendant at divers times , the plaintiff is bound to prove the battery made the same day in his declaration , and shall not be admitted to give another day in evidence , by the opinion of the whole court. heydon against mich. . jac. rotulo , . an action of battery brought against three , two of them pleaded not guilty , and judgment by non sum informat . against the third , and the two were found guilty for all : and the jury gave damages severally , against one a l. and against the other a s. and what judgement should be given was the question : and at first the court was of opinion that the plaintiff should not have judgment at all ; for where the defendants are found guilty of all the trespass , in this case , the damages shall be intire ; but if one shall be found guilty of part , or at another time in this case , the damages shall be severall , otherwise not . and they thought a venire de novo ought to issue out , because the jury had mis-behaved themselves in severing the damages ; but afterwards , it was resolved that the damages that were given by the first jury , to wit , one l. should be recovered against all the defendants in that writ named : and that in trespass the first jury taxes the damages for the whole trespass , and that shall bind all the defendants , and therefore execution was given against all the defendants for the hundred pounds , trin. . jam. rotulo . . banks against barker , hill. . jac. rotulo , . in an action of trespass , the venire facias was well awarded upon the case of the venu in westown , and of the mannor of d. and the writ of venire was mistaken , to wit , of the venu of westown : and exception being taken after tryall , the court was moved for the amending of the venire facias by the roll ; and it was denyed , because the jury did come of another venu then they ought by the law of the land to come , and therefore could not be amended : but afterwards the court seemed to be of an opinion , that the awarding of the venu in the roll was mistaken , because it was of the venu of the villiage and mannor : and it should have been of the mannor only , being to try a custome of the mannor . forrest against headle , hill. . jac rot . . an action of trespass brought , and a continuando of the trespass unto the day of the shewing forth the plaintifs originall , to wit , the . day of november , which day was after the shewing forth of the originall : and because the jury gave damages for the whole time , which ought not to be , it was proved that the judgment upon the verdict might stay , but by the whole court the videlicet was held idle , and judgment given for the plaintiff . cocks against barnsley , hill. . iac. rotulo , . an action of trespass brought , and a speciall verdict found , and the question was , whether land held in ancient demesne was extendable for debt , and an action of trespass brought for that cause . and justice nichols held it was extendable ; for otherwise , if it should not be extendable , there would be a fayler of justice ; for if a judgment should be had against a man , that had no other land but what was in ancient demesne , and that it could not be extendable , there would be a fayler of justice , which the law doth not allow of : but an assize , or a re-disseisin doth not lye of land in ancient demesne , because of the seisin that must be given by the common law , and it would be prejudicial to the lord , which the law allows not : and wynch and hubbard were of the same opinion . for ancient demesne is a good plea , where the free-hold is to be recovered , or brought in question , but in an action of trespass it is no plea. and note , that by this execution , neither the free-hold nor possession is removed , but only the sheriffe enters to make execution upon a judgment had in the common bench in debt , which is a proper action to be brought there . wright and his wife against mouncton , hill. . iac. rotulo , . an action of trespass brought , to which the defend . pleaded not guilty : and the husband only made a challenge , that he was servant to one of the sheriffs , and prayes a processe to the coroners ; and the defendant denies the challenge : and therefore notwithstanding the challenge , the venire issued to the sheriffs ; and after a tryall , exception was taken , because the woman did not joyne in the challenge : and it was held that the husband and wife should joyn in the challenge , although the cause of challenge proceded from the husband only ; but after tryall , it was helped by the statute of ieofailes , and judgment given for the plaintiff . bide against snelling , hill. . iac. rotulo , . an action of ejectment brought , and also a battery in one , and the writ : and after a verdict it was moved in arrest of judgment , because the battery was joyned with the ejectment . the damages were found severally , and the plaintiff had released the damages for the battery , and prayed judgment for the ejectment : winch held the writ naught , but judgment was given for the plaintiff notwithstanding . steward and his wife against sulbury . an action of trespass brought , wherefore by force and armes the close of the wife while she was sole at d. hath broken : and the wood of the said d. to the value of . there lately growing , hath cut down and carried away , and in his count shews that he hath cut downe two acres of wood : and exception was taken because he declared of so many acres of wood , and not of so many loads of wood , to wit , twenty , &c. loads , and held by the court to be a good exception . blackeford against althin , trin. . jac. rotulo , . an action of trespass brought , wherefore by force and armes a certain horse of the said plaintiffs took away , &c. the defendant conveys to himselfe a certain annuity , granted to him by one john hott . the plaintiff shews , that one william hott , father of the said iohn hott , the grantor was seised of land in fee , which land was gavel-kind land , and devised it to his wife for life , the remainder to iohn hott the elder , and iohn hott the younger his sonne , and the heirs of their bodies : and afterwards william dyed , and the woman entred , and was seised for life ; and the two sonnes entred , and were seised in tayl , and being so seised , iohn hott the younger had issue , iohn hott , &c. and traverses without this , that iohn hott the father , at the time of granting the annuity was seised of the tenements aforesaid , with the appurtenances in his demesne , as of fee , as , &c. and the defendant as before , saith , that the said j. h. the father at the time of the granting the annuity aforesaid was seised , and after the tryall it was moved in arrest of judgment , supposing it was mistried ; because the issue was , that the said j. h. the father , at the time of the grant , &c. and it doth not appear that the said j. h. was nominated father , neither could it appear that the said j. h. was the father , and so the word father was idle , and the court were of opinion , that it was helped by the statute of ieofailes : and the word father was idle , and judgment was given for the plaintiff . a. brought an action of battery against the husband and wife , and two others ; the wife and one of the others without the husband pleads not guilty , and the husband and the other pleaded , seu assault demesne , and tryed and alledged in arrest of judgment , because the woman pleaded without her husband : and judgment was stayed , and a repleader alledged , and this case was confirmed by a case which was between yonges and bartram . harvy against blacklole , trin. . jacobi . rotulo , . an action of trespass brought , wherefore by force and armes his mare so strictly to a gelding did fetter , that by that fettring the mare aforesaid did dye . if a stranger take a horse that cometh and strayeth into a mannor , the lord may have his action of trespass . if my stray doth stray out of my mannor , and goeth into another mannor the day before the yeare be ended , i cannot enter into the other mannor to fetch out the stray : if i take an horse as a stray , and onother taketh him from me , the action lyeth not by the owner against the second taker , because the first taker hath devested the property out of the owner . the defendant in this justified the taking of the mare as a stray , and did not alledg that he came as an estray , and the plea was held insufficient , and the court held they could not tye them together : and the defendant said , that the hayward took the mare and delivered her to the defendant ; this was but not guilty , and judgment for the plaintiff . lvttrell against wood and other defendants , pasch . . eliz. an action of trespasse brought , wherefore by force and armes he broke the plaintiffs close , and cut down his trees . the defendant in barre to the new assignment , alledges that he is a copy-holder for life of the mannor of mynehead in the county of somerset : and that in that mannor there was a custome that every copy-holder for life had used at his pleasure , to cut downe all the elmes growing upon his customary lands , and to convert them to his own use , when , and as often as hee would , and so justifies , and a demurrer upon the barre : and the question was , whether the custome was good and reasonable ; and the later opinion was , that it was a good and reasonable custome , but now it is otherwise held . actions of waste . in waste the writ shall be brought where the waste was committed : and the processe in this action is summons , attachment , and distresse , peremptory by the statute of westminst . . but at the common law the distresse was infinite . and if the defendant doth not appear upon the distresse , although a nihil be returned , yet the plaintiff shall have judgment , and a writ to inquire of damages of the waste , and an essoine lies , as in a quare impedit , and the processe shall be executed as in a quare impedit , and returned from dayes to dayes , and the plaintiff in this action shall not recover costs , but the value of the waste found by the jury shall be trebled by the court ; for costs shall not be recovered in such actions as are given by the statute , as in this action a decies tantum , and quare impedit : and so judgment is to recover the place wasted , and severance lies in this action , mich. . h. . rot . . and note , in the tryal of the issue in waste , if the defendant by his plea doth not confess the waste , six of the jury which are impannelled to try the waste must have the view of the place wasted , to the intent that the plaintiff may be put in possession of the place wasted by the view of the jury : and if the defendant confesse the waste , the jury ought only to inquire of the value of the waste , but not who committed the waste : but upon a default upon the grand distress , the sheriff in his proper person shall repair to the place wasted , and there inquire what waste and spoile is done . and if he doth not return that he was there in his proper person , it is naught : but upon a judgment by non sum informat . nil dicit , or in a plea by which the defendant confesses the waste , the sheriff shall inquire only of the damages : and he is not bound to return upon that writ , that he in proper person went to the place wasted : and when the judgment is by default , the challenge lies against the sheriff , and if it be denyed it is errour : and if the plaintiff do not take jungment upon the first distress , being returned , executed , but takes another distress , it is error . and no receit lies by the vvife upon the default upon the distress at the return of the vvrit to inquire of the wast , trin. . h. . rotulo , . for if the vvoman at the assize before verdict , doth not pray to be received , she shall never be received afterwards in the court , at the return of the nisi prius . and note , that the jury may give severall values , and one joynt value of the place wasted , but severall values is the better way . if a lessee for yeares makes a lease of one moity to one man , and of the other moity to another man , and one of them commit waste , the action shall be brought against the two , for the waste of one is the waste of the other , if a lease be made by three to one for life , and afterwards two release to the third , and the lessee commits wast , he alone shall have a writ of waste , supposing that hee demised onely . if waste be committed in two villiages , and the sheriff hath executed his office naughtily in one villiage and well in another , all shall be inquired of , de novo , because the whole in inquisition was but one inquest at one time ; but if the plaintiff assigne the waste in the houses and woods , and it doth not appeare by the count , that the houses were demised ; and upon a nihil dicit , a writ to inquire of the damages issues out , and the jury find , &c. the plaintiff shall have his of the houses . bedell against bedell , trin. . jacobi , rotulo . an action of waste brought ; the case was , there is a devise to two for one and twenty yeares , the father and son , and made the son executor , and he refuses to prove the will , and take the terme , and so no waste committed . and if lessee for life and his lessor joyne in a lease for yeares by indenture , and the lessee for life dye , and waste is committed , the surviving lessor shall have the action of waste , and shall count that he did demise it alone : if a lease be made to husband and wife for life , and for twenty yeares after their deaths , and the wife dye , and waste is committed , the wife shall not be named in the wri● , nor the terme after her death . if husband and wife during the coverture make a lease , and waste is committed , they both shall joyne in the action of waste : and if a lease be made but for one yeare or for halfe a yeare onely , yet the writ shall be for a terme of years , but the count shall be speciall ; if a lessee for yeares or life grants rent out of the land he had for yeares , and afterwards commits waste , if the lessor recover the place wasted , the land shall be charged : if a lessee for a hundred yeares grants part of his terme to another , and be commits waste , the action shall be brought against the first lessee . if tenant for life commits waste , and afterwards grants his estate to another , waste shall be brought against him in the tenet ; and after judgement , a scire facias shall issue to the grantee , to shew cause wherefore the plaintiff shall not have execution of the place wasted ; and the like if lessee for yeares commit waste , and grants over his estate , waste shall be brought against him in the tenet . and if a lease be made for life , upon condition that if the lessee shall do such an act , his estate shall cease ; and he doth commit such an act , the writ shall be brought against the lessee in the tenet , although his estate be ended : and the like if a lease be granted to a woman so long as shee shall live sole , or shall behave her selfe wel , if shee commit waste , the writ shall be brought in the tenet ad terminum vite , and the count shall be speciall : if tenant in dower grants over his estate to a stranger and commits waste , yet the action lyes against the tenant in dower , but otherwise it is if the heire grants over his estate : and the like for tenant by the curtesie . if waste be brought against two , and one appear upon the distringas , and the other make default , the plaintiff shall have a writ to inquire of the waste , but shall declare against him that appears , for a man shall not recover by moities in waste , as one shall recover in a precipe quod reddat against two , for in waste the land shall not be lost by default , by an action tryed , and if a waste be committed between the judgement and execution , a writ shall be awarded to inquire of the waste , but quaere thereof : if a woman while she is sole commits waste , and marries , the writ shall be , that the woman while she was sole committed waste , and if tenant in tail in remainder brings an action of waste against tenant for life , the writ may be , which he holds of the tenant in tail , although they hold of him in the reversion in fee , and so it was adjudged , pasch . first james , that the writ was good . an action of waste lies against executors for waste , for waste committed by the testator , and if a man have land in the right of his wife , and waste is committed , and the woman dies , now no action of waste lies against the husband , after the death of the wife . in waste , if the term be ended , and nothing be recovered but damages , there a concord with satisfaction is a good plea , and if the lease for years determines , pending the writ , the plaintiff shall recover nothing but damages , and not the place wasted . the defendant may disclaim in his action , if he that hath the fee , pleads no waste done , this is a forfeiture of his estate ; the defendant may plead no waste done , and give in evidence that the tenements at the time of the demise were ruinous , ancient demesne is no plea in waste . if a guardian in socage , in the right of his wife commits waste , the writ shall be brought against the husband onely , mich. . ed. . rotulo . if an action of waste be brought against the husband and wife , and the husband appear upon the distringas , and the wife maketh default , this shall be the default of both of them , mich. . h. . rotulo . the plaintif may abridge the waste assigned in part , so that he aabridges not the whole , as if writ be of waste in houses and wood , he may abridge part of the assignment in the houses and woods , but not the whole , and if issue be joyned for part , and demurrer for another part , the issue may be tryed before the demurrer adjudged . if an indenture to raise uses upon good consideration be made , and he that hath the estate for life commits waste , he to whom the reversion is limited , by the same indenture may have a generall writ of waste , by saying generally , that he hath demised , it or a speciall writ at his pleasure , and mich. h. . it was held by all the judges , that it is an ill return , for the sheriff to return upon a writ to inquire that he hath commanded his bailiff , because the sheriff is both officer and judge , which power cannot be committed to the bailif of the liberty , and the writ is a non omittas in it self , but quaere , for there are divers presidents against it , the lessee may cut down trees for the repairing of houses , when the lessor is bound by covenant to repair , and doth not ; and it is no good plea , for the lessee in waste brought against him by his lessor , to say generally that he hath nothing in the reversion , but he must shew how the reversion is not of him , but upon a grant of the reversion , and waste be brought by the grantee , nothing in reversion is a good plea. upon no waste pleaded the defendant cannot give in evidence that the tenements were sufficiently repaired before the writ brought . if an issue arises i● a forreign county , the jury shall not be examined of the view , and if the jurors be not examined of the view when they should be examined , it is error . if my father leases land for term of life , the writ of waste shall be of houses , &c. which the said a. father to him demised , and so in a writ of waste , of a lease made by my predecessor , but if the abot , or the son himself bring the writ , it shall be of houses , which he holds for a term , &c. if waste be made ( sparsim ) in a close or wood , the plaintiff shall recover the whole close or wood , and the treble value shall be levyed by fieri facias , or elegit , and not by capias , because a capias lies not upon the originall , the sheriff may take a posse comitatus to stay the tenant from doing of waste upon an estrepment . two tenants in common , one of them makes a lease for years to the other . an action was brought against tenant for years , by him in the reversion : the case was , that the lessorafter the lease made , granted another lease in reversion for yeares , and this matter pleaded in abatement , pretending that the lease in reversion , was an impediment against the plaintiff , inbringing his action , but otherwise adjudged , for if a lease be made for life , the remainder for years , and waste be committedby tenant for life , notwithstandingthe lease for years in remainder , waste lies . skeate against oxenbridge and his wife , trin. jac. rotulo . waste brought of lands and gardens , in l. of which e. k. was seised in his demesne , as of fee , and being so thereof seised , after the fourth of february , h. . thereof infeoffed e. s. and others to the use of the said e. s. dead , and of the said e. for term of their lives , and the longest liver of them , and after the decease of the said e. s. and the said e. then to the use of the heirs of the body of the said e. s. to be begotten upon the body of the said e. of which said e. s. dead , the now plaintiff is son and heir begotten on the body of e. committed waste , and in the declaration he shewed the feoffment made to the feoffees , and the habend . to them and their heirs , and because the word heirs was omitted in the writ , exception was taken , but because it was in the declaration , it was adjudged good ; and note , in this case the woman was received upon the default of the husband , and pleaded to issue . if the feoffees have but an estate for life then they cannot convey an estate in fee simple over . saunders against marwood h. . el. rot . . an action of waste brought in the tenuit against the assignee of the term , by the assignee of the reversion for wast committed in digging of sea coals : the defendant pleads in barr , that the first lessee , opened the ground , and granted to him all his interest in the land , with all profits , except and alwayes reserved to him his heirs and assigns , all the title of the coal-mines in the said parcell of land , and all timber trees , and averres that the mine in the land , at the time of the grant made , was , and yet is open , and adjudged no barr , for he had no power to intermeddle with the digging for coals , and to except with which he had no power to meddle , is void exception , and the defendant was punishable for the waste by the whole court. lashbroke against saunders , pasch . . el. rotulo . or . in waste , the case was in the lease , there was this proviso , to wit , povided that the lessee shall not fell the wood , the defendant pleads the proviso , and saith , he hath not demised it , and the question was , whether these words , provided and agreed , are an exception , or no , and adjudged that the word provided is no exception , and the wood was demised . the end of the book . an exact table , alphabetically pointing out the most necessary and pertinent matters of this treatise contained , for the ●ase of the reader . a. averrment , where necessary , . . attorney called champertor , where it is actionable , . account , what processe in it , . account against a bailiff locall , . account where the writ abateth by death , . account lyeth not before a sherif , . nor against executor , nor an infant , ibid. account , what is a barre , . account , where it lies not , but detinue , . account , judgment upon speciall verdict , . accountant shall not wage his law , where , . auditors , their certificate , . allowance to a bailiff , where , . action to be revived by scire facias , . assize for the office of clock-keeper , . assize in costs upon non-suit . audita querela , . audita querela , supersedeas denied , where , ibid. administration dur . minor . . attornment not necessary for acts in law , . assets , a difference , . action upon penall statutes , not upon the statute of jeofails , . audita querela , bayle put in , in the chancery , and good , . audita querela for a purchasor , . assumpsit upon marriage , . alyen borne , no plea in a writ of errour , . admiralty , its jurisdiction , . amendment after tryall , . ancient demesne tryable by dooms-day booke , . attorney put out of the roll , . attorney scandalized , , . arrest for felony good , where words importing a felony actionable , . attorney called bribing knave , . attornment of an infant administration revoked , , . action in england for service beyound seas , . attachment ad satisfaciendum , . amendment after imparlance , . action for non-performance of an award , . action upon the . h. . for election of burgesses , attachment forraign , pleaded , arbitrium nullum pleaded , & . award , where void , apprentice , when to be sent beyond the seas , amendment of imparlance denyed after errour , award of a thing not in the submission , void appearance on another day saves the bond , where assets , what shall be , acceptance doth confirm an estate , where , appearance pleaded de novo , when nought , award void for incertainty , assurance devised to be made by the plaintiff , abatement for not naming an infant executor , action , sur le stat. . h. . pur . rent arrear , action , sur le stat. . h. . where it lies not , action lies , though a stranger doth carry away the corn before severance , amendment of originall after tryall , award where good notwithstanding all do not award , abatement how traversed , amendment in a writ of errour before the record removed , avowry in a rent charge , avowry for an amerciament in a court leet , avowry amended after entry by consent , amends made by a bayliff not good , avowry , exception too late after judgment entred , avowry for damage feasant , attornment , where it is of necessity , where not , annuity granted by will , apportiament , where , agreement verball where to be averred , where not , advowson will passe per concessionem ecclesiae , ancient demesne , whether extendible , annuity , b. barretor , where actionable , bankrupt knave , where it is not actionable , breach assigned , , bar , where naught , breach , that one entred , and doth not shew by what title not good , breach by non-payment , bailement upon habeas corpus , where no cause is expressed , bastard , where it is actionable , baron chargeable for femes , cloaths bond pleaded in satisfaction , bona notabilia , bond by the under sheriffe to the high sheriffe , where good , , breach assigned in covenant , breach , what , barre , another action of the same nature pleaded , breach , when not specially to be alledged , bond joynt or several at the plaintiffs election , breach upon award not good , where , breach not assigned , the plaintiff shal never have judgement though he have a verdict , . bishops plea shall not prejudice the incumbent , beasts of a stranger where they are distrainable . battery . , . barr where good , . badger may be hunted but not digged for in another mans ground , c. count incertain . court where it may discharge one arrested , . clerks misprision helped . common appurtenant cannot be divided , . covenant against an administrator , covenant and debt where they differ , . covenant against the first lessee , after assignment , . covenant upon a void lease , where it is good , . covenant in law how extendible , covenant against an executor , . covenant against two , to levy a fine , various acknowledgement , covenant against more then did acknowledge the fine amended , . commander in trespass liable to action , . copy-hold extendible upon the statute of banckerupt , . charter of priviledge pleaded , . commission high de authority . conversion what makes it , . collaterall consideration where good to maintain action , . count uncertain , . consideration not valuable , . conspiracy where it will not ly , . costs where to be given , . count insufficient . creditor administring . costs , none upon the statute of perjury , . custome speciall pleaded , . contract usurious what not , . costs omitted in the roll , error , costs , none against an executor , costs to be considered multi fariam , . challenge insufficient . copy-holder must act according to custome , . concord with satisfaction , good plea in ejectment , . court roll of a copy-hold traversed , adjudged naught , . . copy-hold purchaser cannot surrender without admittance , chaplains priviledged , . court baron incident to a mannor , . common appendent need to be prescribed , . common , when it s well found by a iury , . challenge denied , . copy-holders their priviledges within the mannor , . copy-holders custome is above the lords estate , . copy-holder what action he shall have , ibid. capiatur upon a judgement assigned for error where , . common appendant apportionable , aliter appurtenant . . copy-holder barred by a fine , if not claiming within five years , . cognisance as bailiff . . commoner may take the cattell of the lord damage feasant , where common in a field , and acres unsown , sowing of parcell shall not destroy the common , . consideration to raise an use , . challenge where it lyeth , . . . challenge , none against the jurors returned by the eslizors , . commoner , what actions he shall have and how , . commoner may have an assise against the lord , . common is incident to a copy-hold estate , . commoner cannot chase the lords cattell , if they surcharge the common , . confession after issue joyned refused , . commoner cannot bring an action , but the lord may , . constable cannot detain one but for felony , . continuando , where proper , . . cursus aque granted , . d. double prosecution for one thing actionable , where , . demand and deniall makes a good conversion , . denis age pleaded to a bond . distresse where good , ratione concessionis , non posaessionis , . devastavit may be by paying of money upon an usurious contract , . distresse in a court baron by prescription , . devise executory , where good , . devise of land in tail conditionally , . demand not necessary , . debt , how , and where it lies , devastavit returned , where . debt lies for money levied , . debt against a sheriffe for an escape , . debt in debet and detinet where , . default of the clerk amended , . demand alledgable , ibid. debt for performance of covenants , . debt upon obligation in italian , . debt for non performance of award . . damages from request . . deprivation given in evidence , dammages where to be severed , debt lies not for fees of a sollicitor , . debtee take administration , . demand necessary in nomine penae . devise of the profits , good of the land it self , . debt against an executor after full age for devast . of an admistrator , duravit minor aetate . debt lies for him , for use money is delivered , . debt upon the statute of perjury , . . debt against the bailiff , . . debt upon the statute of edw. , for tithes . debt for rent arrear . debt for flemish money but demanded by english value , demand of rent , where to be debt for tithes , plaintiff need not to be named rector , debt for tithes , the statute mistaken is not good , debt by a bill for money received to anothres use , debt for non-performance of covenants , devastavit , when it ought to be retained , debt upon a lease made to an infant , debt for tithes after the toarm ended , demurrer to an action for non-performance of an award , dower against the heir or committee , dower of tythes , how , . demand , when to the parson , when to the land , debt contingent cannot be discharged , where , deed of gift good against him who makes it non obstante , . eliz. and against his executors and administrators , demand of rent to avoid a lease , where to be made . . discontinuances , . darraign presentment , where , . demurrer for doublenesse of plea , . devise for years in confidence , . demand not necessary in replevin for rent . . distresse of a thing intire by two , no return in replevin adjudged , . distresse for common right , distresse , where it is good for the rent , but not for the nomine penae without demand , demand of rent-service , how , . demurrer to part of the declaration what it effects , disseisin of a common , what , . damages for trespass locall cannot be mitigated by the court , . declaration shall not abate for false latine , . damages , none in partition , . damage where it shal be intire , damage released for part . e. elegit , how executed , . elegit from the teste binds goods and chattells , . extent upon extent , . estovers , . entry , writ filed after the death of the tenant . error as to costs , where , . exception to a declaration . executor at what age , . exceptions to an award , . exceptions to a plea . exception to a venire facias . estoppell . error assigned , , . executor an assign in law , executor , de seu tort . shall not prejudice the rightfull escape against a bailiffe of a liberty , executor , his election for part is not good , escape lies not against the sheriffe , where , . , executor , de seu tort . cannot retain money to pay himselfe , , election of execution either against principall or baile , error lies not before 〈◊〉 value 〈◊〉 inquired of 〈…〉 executor shall not pa●… . jac. cap. . elegit to a forreign sheriffe upon a testatum in london , , ejectment doth not lye de aequae cursu , ejectment sufficient by a servant in present relation , ejectoris in traverunt and after he did expulse in num . singulari , essoine lyes by writ of journeys accompts , though allowed in the first writ , essoine , where it lyeth , extinguishment of common by inclosure , where , exceptions to an avowry , evidence what shall be given , enquiry of damages , the plaintiff not bound to prove the property of his goods taken , but the value only , estovers , if the owner cut all the wood downe , what remedy , exception taken for incertainty , estray how to be used , and the nature of it , f. french pox actionable , filching fellow not actionable , forsworn knave , where it is actionable , forging knave , where actionable , feme , where not bound to performe the covenant of her husband , fraud not ●●nended , feme covert cannot convert , feoffment to uses , feme covert cannot make a letter of attorney , formidon in descender . , felony committed , is good cause for to arrest one suspected , but not to defame one , feme cannot plead without her husband , free warren , what , g. grant by the king , where good , grant not enlarged by a bare recitall , guardian in socage , who , gift by deed void , quoad chose , and action , goods not saleable upon execution out of a court baron without custome , guardian of the spiritualties , who , generall release pleaded , grantee of a reversion , what action he shall have , h. habeas corpus to the marshalsey , hue and cry , hundred charged in robbery , hundred not chargeable after the yeare and day , hundredors in a jury , how many necessary , husband and wife , where they shall be joyned , and where severed in an action , i. incertainty in the declaration , justification disallowed , indebilatque assumpsit , where good , iustification by the sheriffe , judgment arrested for default in the declaration , . judges of the fact , who , inquisitions , where naught , juror appearing cannot be discharged , issue cannot be bastarded after death of parent , imparlance , what plea after , judgment arrested , judgment reversed , because the sheriff was not named in the venire facias , iudgment arrested , justification not good , where , justification amounting to a not guilty , naught , innuendo will not help the action , & imparlance roll supplyed by the issue , juror committed , judgment upon a by-law , , judgment pleaded in bar by executor , judgment against executors , imparlance amended , judgment arrested for improper words , sans ( anglice ) jeofaile , the statute not helping , where , judgment reversed by error in the disjunctive , intendment upon a will , judgment reversed in an inferiour court , why , judgment reversed for errour in the judgment judgment reversed for changing the defendants addition , judgment priority considerable , judgment reversed for not shewing in what court a deed was enrolled , judgement reversed for want of words in the tales , , implication not allowed of in a surrender , where , judgment in an eject . firmae , interest , what , judgment reversed by writ of error , non obstante , a verdict , & the statute of . eliz. imparlance , what is pleadable after joynture , what , interest in possession , and in future , the difference , implication not intended , where , judgment arrested , for that the plea was naught , jurors name mistaken , was amended upon constat de persona . iudgment arrested for not shewing in what place the messuage did lie , to which common did belong , iury challenge , iudgment , it 's nature , as to the plaintiff and defendant , issue helped by the statute of jeofailes , where , iudgement reversed , because the writ of enquiry was before a wrong officer , imprisonment justified by the commandment of the maior of london , naught , where , justice of peace cannot command his servants to arrest in his absence without warrant , . iustification in trespass for a way , . iustification not good , where , . iustification speciall pleaded in battery , . issue of things in severall places , . k. kings title not lost , knight ought to be returned in the pannell , where , . l. law gager lies not if the except be per manus proprias , lease to two , determined upon the death of one , where , . lease of a reversion sans attornament , where good , . legacy of land not suable for in court christian , . legacy of a chattell suable for in court christian , . locallity not to be made transitory , . limitation is taken strictly , grant aliter . lessee at will cannot grant over his estate , . law mistaken , where it is hurtfull , . letters of administration ought to be shewed , . law waged , where , . law wager by a false party , . letter of an attorny where naught . . law gager lies not in debt for sallery . . law gager where , . lessee at will , if he determine his will , devis . au . yet shall pay the intire rent , . lease to try a title of lands in the hands of many , . lease to be executed by letter of an attorney , how , . lease made to three for their lives , with a covenant that the land should remain to the survivor for years , is a good interest in the survivor , . london , how houses passe without inrollment , . . liberty to make leases , . lease for life to three , where it was naught , . lord of parliament not appearing shall forfeit l. . lunatick where an action ought to brought in his name , . levant and couchant is certainly fufficient , . m. mistryall , the ven. fac . mistaken , mistake of the iury , misprision of the clerk amended , monasteries dissolved , onely those regular , mistake by the court no prejudice , . mistriall , . missworn fellow actionable , . medietas linguae , where , . master chargeable where , misprision of the clerk amended after tryall , . mannor by that name , what will passe , . mistake of a day , of an act by way of bar not prejudicial , . marshalsey hath no authority to hold plea of debt , except one party be of the houshold , marshalsey no iurisdiction , . . master cannot have an action for the loss of service if the servant die of the beating , . n. notice not necessary , non est inventus where the party did escape , nusance where it lyeth . . non damnificatus pleaded , noverint for non assumpsit . . notice where needfull , . nul tiel record pleaded to a plea of outlawry , . non damnificatus pleaded , . nisi prius , amended by the roll , nonage tryed where it is alledged , not where the land lies , . . non-tenure pleaded , . nisi prius the record amended upon motion nullum tempus occurrit regi , . negativum praegnans , . non residency the statute , el. a generall law , . new asignment where not good , . bar to it , . nihil dicit , . . non omittas , . o ordinary cannot make a division , . ordinary his power , . outlawry no plea , where . outlawry in the testator , . originall want of it , after verdict no error , . obligation discharged why , . . originall against four , & count against three without a simulcum adjudged naught , ordinary and patron their severall rights , . p. pardon generall de effect , . promise by an infant , not good , papist to a bishop actionable . proviso implicit , where good , . perjured knave actionable . proviso , , . pyracy no excuse in an action of covenant , . plea in abatement , in assise , . premunire in a parson , . pleas severall cannot be in a joint debt or contract , . proof , how far extendible where required and where not , . pardon , crimen legitur , non tollitur , . priviledge from arrest , where not to be allowed , prender and render , the difference , . . prescription , where good , property not altered upon a scire facias , . punishment corporall not to be imposed for the default of a deputy , where . proviso executory and executed , the difference , . priviledge respective , payment where peremptory , plea made good by verdict , payment when upon demand , pardon generall pleaded , . plea to a bond taken by the sheriff , . payment to the heir , and not to the exceutor where good , . priviledge of an vniversity , where not to be allowed , . plene adm nistravit no plea , where , . proprietor sufficient , . priviledge of parl. pleaded , plea naught for want of traverse , . primo deliberat . shall not be pleadded , sans traverse , . propriety of goods cannot be in abeyance , . prescription and custome do differ , how , . processe misawarded , where helped by the statute , . plea where it shall be in discharge , but not in barr of an obligation , . partition processe in it . for whom it lies , partition error in the first judgement , . partition in another writ was pleaded . presentment of a clerk by words , good . patrons moneths , . proprietate probanda , . plea naught , . pannell of hab . corp . amended upon oath , . partes ad finem nihil , &c. pleaded prescription for common of pasture , . prescription to distrain for amendment in a court baron must be not in a court leet , . prescription in a good estate good for a thing incident , though it be in grant , . prescription to be a iustice of peace where good , how naught , . prescription good matter , and various , . possession how it enters , , . posse comitatus , where it may be raised . . q. qveen cannot be an officer to the king , quantity in a declaration may be destroyed by a per nomen , . quare impedit , process in it , quare impedit the judgement in it , quare impedit , essoyn in it , how and for whom , . quare impedit , iudgement in it , where execution shall be by the metropolitan , . quare impedit severall against severall men . quod permittat . . r. request , where it is necessary , release of baron where it is no bar rent arrear no plea in an action of covenant , release where not to be given in evidence , request upon a bond what is sufficient , rent reserved , where gone , rent proportioned , return of a sheriff insufficient , return of iurors , naught , rogue not actionable , rieus per deceit , release , how and where good , . & repleader awarded , release , where good , in respect of time , release of all demands , its force , . request to make assurance generally good , release in law , reversioner received for default of tenant for life , return insufficient , why , replication not good , rent received at michaelmas , or within ten dayes after , reservation of rent how to be construed , , record removed unto the exchequer , , resignation by fraud takes not away the kings title , replevin , where , and how , replevin not within the statute , jac. returno habendo , replevin place omitted , not good , resignation of a benefice , release to tenant at sufferance , void , recognizance sued , s. svit in chancery is no disturbance , sheriffe amerced for the false re-return of another , summons & severance , where , statute preferred before a judgement , where , , supersedeas granted , where , subboth , where punishable , scandall for keeping a false debt-booke , actionable , suing in a wrong court , where actionable , scandall for false measures , actionable , scandall for invocation of spirits , sheriffe , his authority in executions scire facias , for whom , satisfaction , what is not , . where it is held naught , steward of a leet within the stat. of edward . successor not executor , when hee shall take benefit , supersedeas upon a writ of error , servant brought an action , nomine proprio , part of the goods being his masters , seisin of rent within the time of limitation , not traversable , surrender of a copy-holder , how it works , sheriffe , where his performance is good , where naught , , scire facias , where it is proper , seisin of a part of service , is seisin of the whole , submission to arbitrators , seu assault demesne pleaded in battery , t. trover , where , trover against an administrator good , where , tenant at the time of writ purchased , where good , tenant at will and at sufferance do differ , tithes discharged , where , tithes , where not suable for by the statute , tithes in kind renewed , where , trees devised to pay debts , tithes , where not of boughes , tithes not set forth , where action . tales prayed denyed , where , tearm whole , adjudged as one day , trees in the high-way , whose , tryall , where , tenants in common , tithe of what trees to be paid , tithes cannot be leased without deed , tryall upon ejectment , good matter , vide . , tenant in taile , his death , where it determineth estates by him granted , tenant in tail grants a rent charge , tales awarded , trespass , what process , trespass is joynt or severall at the plaintiffs election , trespass laid in an acre , and the iury found in a rood , yet it is good , trespass ▪ difference 'twixt it and rep'evin , tort ▪ demesne , where good in issue , where not . v. variance betwixt count & the writ of inquiry , ven mis-awarded , view , to be there where an office is performed , villianage within the statute of limitation , vse , upon what , venire facias mendable , where , vsury what , where not , uncore prist , where pleadable , verdict speciall , venire facias mis-awarded , uncore prist for to grant , where naught , venire facias , the defendants name mistaken , vsurious contract pleaded , variance betwixt the specialty and count , verdict speciall upon non demisit , venire facias of the parish adjudged good , venire facias to the coroners , ib. verdict speciall in ejectment , verdict precise sometimes makes the declaration good , which otherwise would be naught , venire facias , exception taken and over-ruled , vsurpation upon the king , venire facias , whence , vsury , the statute pleaded , venire facias de novo , . . venire facias vitious , why , verdict finding substance , though not circumstances , yet good , , . venire , one out of two places in the same county , w. where arrant not actionable , words implyed not actionable , will , good by notes , words actionable , , . witch , not actionable , . warrant of attorney , words after the clause of his testatus , of what force they are , vvrit originall , where abated by death . will must be certain , and according to law , will not to be avoided by averment , will , mistakes in many cases tollerable , words void , rather then the declaration , where , warranty collaterall pleaded in a formedon , writ , another depending pleaded , withernam awarded , , words of double intendment how to be construed , , wast , where it lyeth , for what judgment in it , , waste , inquiry of it , ibid. waste , who shall joyne in the action , waste , against whom it lies , , waste , sparsim , ibid. the times when these severall officers of the court of common pleas were admitted to their severall offices . thomas spencer , ar. pasch . . eliz. henery compton , miles balnei . circa an. . car. jo. glyn , serviens ad legem . . febr. . car. johannes foorde . . jan. . eliz. gulielmus nelson . . novem. . eliz. richardus brownelow . . oct. . eliz. thomas cory . . oct. . car. zacharias scot. . oct. . eliz. thomas crompton . . may . jac. johannes goldesborough . . may . jac. johannes gulston . . oct. . jac. richardus barnard . . febr. . car. johannes pynsent . ult. may . car. laurentius rardford . . oct. . elizabeth . hugo browker . . november . . eliz. thomas waller . . jan. . jac. robertus moyle . . may . car. geo. farmer . . oct. . car. gulielmus anderson . . . may . jac. geo. reading . . oct. . jac. milo hobert . . dec. . jac. gulielmus rolfe . . may . car. jo. gulston . . jan. . jac. henery ewer . . oct. . jac. antonius wright . . dec. . jac. finis . reports : ( a second part. ) of diverse famous cases in law , as they were argued , as well upon the bench , by the reverend and learned judges , coke , flemming , hobard , haughton , warburton , winch , nicholls , foster , walmesley , yelverton , montague , dodridge , and diverse others , in their respective places ; as also at the barr , by the then judicious serjeants and barristers of speciall note . collected by richard brownlow esq prothonotary of the court of common pleas . very beneficiall for all such who are studious to know law , in its power , act , and limitation : directivè , and usefull for all clerks , attorneys , &c. in their inter-agendum's , or severall ministeriall functions . with a perfect table shewing the remarkable matters argued and concluded in this book . protag . de leg. lib. . 〈◊〉 〈◊〉 〈◊〉 〈◊〉 〈◊〉 . london , printed by tho : roycroft , for matthew walbancke , at grays-inne gate , and henry twyford , in vine court middle temple , . to the reader . upon the strict survey of natures products , there is nothing to be found , whether in the bosome of its causes , or in its singularities , within the convexity of the vniverse , which being contemplated at an intellectuall distance , beyond the magnetick effluvium of our senses , doth not felicitate with more certainty , nedum , probability , as more obsequious to the prototype of its projection , then man : the very cronologie of whose errors doth compute his existency , an ingratefull returne for the dignity of his essence , which unmolested and freed from the procacity of his junior and inferior faculties , would have fixt him in the harmonious orbe of his motion , and have secured him , as well against the scandall of a planetique , as the ecclipse of his native glory : but alas ! the doome is past , ex athaeniis in barathrum , hee 's now benighted with ignorance , phainomena's , and verities ; an ignis fatuus , and a linck-boy , are eodem calculo ; which condition imposes upon him something more then metaphorically , the semblance of a moth-flye , which is in nothing so solicitous , as in its owne ruine : neverthelesse had privation in his judgement been the onely losse , hee could then have undergone ; but his po●o di matto , but his will , and too too cereous potestatives , have stigmatiz'd him in all his habitudes , undiqueversum , with a more reproachfull sobriquet of vellacazo teso , in which shamefull state , forgetting his constitutive nature , and rudely breaking through his divisive difference , he seems now to be lost , if perchance he is not found in the confused thickets and forests of his genus ; where measuring his actions ( rather ausa furosa ) by the cubit of his strength , he giddyes himselfe into a maze of inquietudes , shuffling the malefactor and judge into one chaire , to make up the riddle of all injustice , because all things are just ; hence was the no lesse opportune , then needfull venu of cicero's vir magnus quidem & sapiens , &c. hence the blissefull emergency of all laws , the limitting repagula's of his insolenoy , and the just monuments of his depravity : but hinc polydacrya , he is yet so unwilling to forgoe his bainefull appetite ( reasons too potent competitor ) that he is still perswaded he may safely act without controlment ; though like a partridge in a net , he finds no other guerdon for his bussle , then a more hopelesse irretition : and as if he were damned to be a ●ury to himselfe , he will not admit that wholesome and thriving councell , that obedience to laws is a much more thriving peice of prudence then sacrifice ; and as much differenced as innocency , and guilt ignorant of its expiation . whence i conceive by a just title , to keep the world from combats , and the reward of vertue from violation , the wisest in all ages have had the priviledge , not onely of prescribing , but of coacting the orders of regiment amongst others , who by necessary complot have engaged for observance ; which somthing seems to repaire the loss ; yet so , as by our dianoeticks , we have opportunity enough to see , and like the satyre in the fable , to feare , our idaeated humanity , although in a more sublime contemplation , it may fall out otherwise , in respect that the law of essences are more certaine , and of a far more facile direction , then those of existency ; which is so necessarily entituled to infinite incertainty , from approximation of accidents , that it would now be an equall madnesse for the governour to think he can , or the governed to fancie hee should , constitute laws , adaequate to humane velleity , since the wills of no two sons of adam did ever mathematically concenter , nor were ever two humane actions shaped with parallel circumstances ; which , as it seems necessarily to import the deficiency of the rule , so also to imply the evident reason of debating and reporting of cases in our law : and the denoting of limitations in that of the empire ; which first , properly are , or ( a notatione ) at least should be , no other then exceptions to the rules generall , from a due consideration of individuating circumstances . for the expediment of which knowledge , this gentleman , the painfull collector of these ensuing relations , for his owne benefit , whilst yet living , and for the good of others , who by natures decree should see his pyre , did think it tanti to make his observations legible : there now remaines nothing , but thy boni consule , in which thou wilt oblige the publisher to continue thy freind in all like opportunities . r. m. barr : a table of the severall cases argued and adjudged . a. admirall court fol. , agars case andrews against ledsam ayres case b. butler against thayre baxter against hopes bushes case blackdens case ibid. beareblock against reade burdet against pix bone against stretton bedell against bedell bearblock against read burnham against bayne barney against hardingham brandons case baynall against tucker bishop of ely brook against cob bicknell against tucker browning against stel'ey bard against stubbing bartons case barwick and fosters case buckner against sawyer bayly against sir henry clare borough of yarmouth c. cradocks case cartwright against gilbert canning against doctor newman crogat against morris , crane against colepit crosse against westwood charnock against currey crew against vernon charnock against corey case of cinque-ports colledge of physitians case chamberlaine against goldsmith cholke against peter , chapman against pend'eton cesar against bull d. daringtons case dorwood against brickenden doctor conways case doctor husseys case , doctor mannings case in the starr-chamber downes against shrimsh●w denis against more . dunmole against glyles . e. enby versus walcot earl of cumberland and hilton ear●e of rutland against the earle of shrewsbury estcourt and harrington earl of rutlands case f. forde versus pomroy fetherstones case flemming and jales freeman against baspoule foster against jackson g. glover and wendham gaudey against newman gargrave against gargrave gravesend case goodyer and ince gittins against cowper grimes against peacock godsalls case h. hurrey against boyer huntley against cage hurrey against bowyer hamond against jethro hamond strangis case hill againstvpchurch hall against stanley holcraft against french higgins against piddle hare and savill heyden against smith i. jones against boyer jennings against audley james versus reade jacob against sowgate ● ireland against smith k. kenrick against pargiter and phillips . kemp and phillip his wife , james and blanch his wife , against lawrere and trallop , and the wife of gunter l. linch against porter legates case lampit against margeret starkey ● lawry against aldred and edmonds m. master , brothers , and governours of trinity house againsi boreman mallet against mallet marstons case manley against jennings marsam against hunter miller and francis. michelborn against michelborn mors against webbe p. parkers case penns case ibid. priddle against napper powis against bowen parkers case petty against evans pyat against the lady saint-john portington against rogers pits against dowse petoes case patrick against lowre prowse against worthing peto against checy and sherman , and their wives . peacock against s george reynel proctor against johnson payne and mutton r. robotham and trevor reyner against powell , rowles against mason , robinsons case rivit against downe read against fisher rutlage against clarke s. symonds against greene sir william chanceyes case . sir john watts sir edward ashfeild styles against baxter . sturgis against deane sir richard bulkley against owen wood sir ed. puncheon against legate sir henry rowles against sir robert osborne and margeret his wife strobridge against fortescue and barret sammer and force styles case stydson against glasse simson and waters smallman against powes t. tey against cox tresham against lambe trobervill against brent tyrer against littleton the lord rich against frank trinity colledge case . the towne of barwick the duke of lenox case v. vivion against wilde w. wagginer and wood westons case wallop against the bishop of exeter , and murrey clark wickenden against thomas weeks against bathurst water against the deane and chapter of norwich warbrook and griffin waggoner against fish waggoner against fish chamberlaine of london y. yates and rowles the second part of brownlowe's reports containing divers excellent cases and resolutions in law. lynche against porter . the plaintiffe in prohibition suggests that hee inhabited in london , within the diocesse of the bishop of london , and was cyted to appeare in the court of the arches , and was out of the diocesse of london , without license of the bishop of london , against the statute of . henry . and upon the first motion , the court gave rule to the defendant to shew cause why the prohibition should not be granted ; and to heare the civilians , and to conferre with them concerning the practise and expounding of the statute of . h. . chap. . and at the day appointed , three severall civilians came into the court , and were heard according to the former order : and they say , that they use to cyte any inhabitant that inhabits in london to appeare , and to make answer in the arches originally ; for the mischief that the statute of . h. . intends to prevent , was , that those which inhabite in dioces remote from london , should not be sued here without licence from the ordinary ; but this mischiefe was not in this case . and doctor martin saith , that so it was used by the space of . years before the making of the statute , and then was complaint made thereof to the pope , and he was answered , that it was the use that any man might be cyted to the arches out of any diocesse in england : and also that the arch-bishop may hold his consistory in any diocesse within his jurisdiction and province : and also that the arch-bishop hath concurrent jurisdiction in the diocess of every bishop as well as the arch-deacon . and then , if the suit be first begun in the court of the arch-bishop , or the bishop , or arch-deacon , it ought to be there determined where it had its beginning , and shall not be inhibited : and then it was objected by cooke , chief justice , that the statute of . h. . was affirmed by canon . and this sheweth the agreement of the civilians with the said statute . and to this doctor martin answered , that the said canon was made in the vacancy of the church of canterbury , for the sea of the arch-bishoprick was then void : and also he said , that the arch-bishop of canterbury prescribes to hold plea of all things , and of all persons in england : and the pope hath no power to make canons against the law , nor against any custome or prescription ; and for this it shall be void , and that shall not bind the arch-bishop which is against the said prescription ; and also it seems to the civilians , that the exposition of the said statute being the ecclesiasticall statute appointed to them : and also it was said by them , that this detracts from the arch-bishops jurisdiction against the custome of the realm , and every subject hath interest in that : and also that the bishop takes notice , that they hold plea of the said cause , and took no exception , and that made a sufficient assent , and amounted to a license in law , and so concluded that a prohibition ought not to be granted in this case . coke , cheife justice saith , that the mischeife which the statute of . h. . was not only to prevent the mischeife that those which inhabited in places remote from london , should not be cyted to come to the court of the arch-bishop , but also to give to them other priviledges , which by the law they ought to have , that is , the appeale that they loose by the beginning of the suit in the arches ; for they may appeal from the ordinary after the suit begun here to the arch-bishop ; which benefit is lost if the suit be begun before the arch-bishop originally : and for that the inhabitants in london are as well within the mischeife as the body of the act of . h. . and also that at the making of the said canon , the arch-bishop of canterbury which late was , had the jurisdiction of the same then committed unto him , he then being bishop of london : so that upon the matter he was arch-bishop of canterbury , so that the unity of the sea of canterbury shall not be avoidance of the said canon ; and he agreed that a canon against statute law , or common law , or any custome , shall not bind the subject ; and agreed , that so it had been adjudged in this court. but he denyed that the exposition of any statute belonged to the ecclesiasticall court ; for the statute is meer temporall , though it concern spirituall things , and it shall be expounded according to the rules of the common law , see . edw. . keasors case : and so concludes that this suit was against the statute of . h. . for it ought to have its beginning in the court of the bishop of london . and this exposition of the statute is made for the defendant , . canon , which was ex presly made against the court of arches , and inflicts suspension ( by the space of three moneths upon the judges which offend against it ) from their office , and awarded that prohibition shall be granted , and with that agreed warburton and foster , justices : but walmsley justice was of contrary opinion , that is , that no prohibition shall be granted by the court of common pleas , but in case where the suit is there hanging . and this was objected also by the civilians , and the opinion of the judges of the kings bench cited to prove it , but prohibition was granted that notwithstanding . and to the objection that the arch-bishop of canterbury may have a consistory in the diocesse of every bishop , this was denyed but only where he was the popes legate , and thenas legate heshall have jurisdiction of all the diocesse of england , & it was agreed that there were three sorts of legats . first , legates , a latere , and these were cardinalls , which were sent , a latere from the pope . the second , a legate born , and these were the arch-bishops of canterbury , yorke , and ments , &c. and these said legates may cite any man out of any diocesse within their provinciall ; then there is a legate given , and these have authority by speciall commission from the pope . daringtons case . daringtons case , was cited before the high commissioners of the king , for maintenance of the opinion of brownisme , and for slandering of one mr. eland a minister , and also of the judges of the common law , and was sentenced , that for the first he should make his submission before the said commissioners , and also for the second that he should make submission to mr. eland , and confesse his offence to him , and pray that he will forgive him ; and so for the third also , that he should make submission , and that he shall be committed to prison untill he perform the said sentence , and put in security that he will not here after make a relaps in any of the said offences ; and after he made submission for the first offence according to the sentence , and upon complaint to this court , habeas corpus was awarded to the keeper of the prison , in which he was to bring in his body , with the cause of his taking and detaining , and he certified the causes aforesaid , but not the submission ; and these were the causes of the taking and detaining of the said darington , and it was prayed by serjeant nicholls , that he might be delivered , and coke cheife justice said , that the ordinary by the common law , nor by the statute , de circumspecte aegatis , cannot imprison for any offence , though it be for heresie , schisme , or other erronious crime whatsoever , and then by the statute of . r. . chapter . . statute . it was awarded that commissions should be directed to the sheriffs and others , to apprehend such which should be certified by the prelates to be preachers of the heresie ; and the favourers , maintainers , and abettors , to keep them in strong prison , untill they will justifie themselves by the law of the holy church : but this was repealed ; by , ed. . . and eliz. . and also by the statute of , h. . . it was ordained that none shall preach or write any book contrary to the catholique faith , or determination of holy church , nor shall make any conventicles of such sects and wicked doctrines , nor shall favour such preachers : every ordinary may convent before him any person suspect of heresie . an obstinate heretick shall be burned in an open place before the people , and this statute was also repealed by , h. . and eliz. . by expresse words , and then by the statute of , . h. . . power is given to all arch-bishops , bishops , and other ordinaries having ecclesiasticall jurisdictions , to commit clarks , preists , &c. to ward and prison for adultery , fornication , incest , or any other fleshly incontinency , there to abide for such time as shall be thought to their discretions convenient for the quality and quantity of their trespas , and these were all the statutes , which give authority to the ordinary to imprison any man. and when the statute of eliz. . repealed the first two statutes of r. . . and h. . . it was not the intent that these offences should be unpunished , but the queen would not leave and trust the bishop , which was but a man , and when he is made bishop cannot be removed with such generall and uncontroulable power , and authority , and for that this power and authority was transferred by the said statute of eliz. . to high commissioners , which the queen might countermand at her pleasure , and appoint new , and so it was transferred from one to many , and this stature did not intend to give other authority to high commissioners to imprison any man , which the ordinary himselfe had not before the making of the statute of el. . and it was not the intent of the makers of the said statute and act of eliz. to alter any lawes , but to transfer the power of one to others , and it was resolved that for working upon holy dayes , the party shall not be punished before the high commissioners , in reimores case , and it was also resolved in symsones case by the lord anderson cheife justice of the common place , and glanvile , they then being justices of assise in the same place , that a pursivant came with a warrant of the high commissioners to attach one by his body for adultery , in a lay mans house , and was s●ain , with great deliberation and conference had with the other judges , that that was no murder , but man-slaughter , for they could not attach the body of any man , but ought to proceed by citation , and excommunication : but it was agreed that they might imprison for brownisme , for that was herezie , besides he maintaind that if the king do not govern his subjects as he ought , that his subjects may and ought to depose him , and other such abhominable opinions , and further that he might fine for that , and he said that one elyas brown was hanged for that in the time of the last queen , & for that , that it doth not appear by the return that darington hath himself conformed , they could not deliver him , for they ought to give credit to the return , according to h. . . be it true or not , and if it be not true , the party may have his action against the officer which doth it , and it was adjudged in fullers case in the kings bench that the high commissioners may imprison and impose a fine for heresie and schisme , and it was also resolved that poligamy before the statute of the . of king james , was punishable before the high commissioners , for this was an heynous crime , otherwise the statute would not have made it felony , and he said that it was agreed in the time of the last queen elizabeth , that the high commissioners should not meddle with any thing but only those five , that is , heresie , schisme , poligamy , incest , and recusancy , and with no others , and it was moved that a writ , de causione admittenda , lieth , for that they would not allow of the submissions . and the justices would consider of that , and the prisoner was remanded , and it was adjourned . and at an other day it was moved by nicholls sergeant , that the high commissioners supposed , for that that the statute of . el. gives authority to the queen , and to her heires and successors , to grant commission to visite , reforme , redresse , order , correct , and amend , all errours , heresies , schismes , abuses , offences , contempts , and enormities whatsoever ; and that the commissioners may execute all the premises according to the tenure and effect of the said letters patents , that by that they might fine and imprison at their pleasure . but coke chiefe justice said , that it appeares by the preamble of the said statute , that after the statute was in the ● . yeare of the raigne of king henry the . by which the ancient jurisdictions , authorities superiorities , and prehemenences , were united or restored to the crown , and by meanes of the said statute , his subjects were continually kept in good order , and were d●sburthened of divers great and intollerable charges and exactions , before that time unlawfully taken and exacted , untill such time as the said statute of . h. . was repealed by the statute of . and . of phillip and mary , which said statute of . and , of phillip and mary , should be repealed and void , by which it appeares , that the kings subjects , were greviously burthened with grevious and intollerable charges and exactions , and yet in this time of usurped power of the pope , doth not challenge that he might commit , or imprison , or fine in any case , but in the cases especially mentioned in the last case aforesaid , and for that all the usurped power was annexed to the imperiall crown , the which he called the clause of annexing , the second was the clause of deputation , and this was the clause of the statute , by which the queen hath power to grant commission to such persons being naturall borne subjects , as her majesty , her heires , or successors , shall thinke fit , to exercise , use , and execute , under her majesty , all manner of jurisdictons , privelidges , and preheminences , in any wise touching or concerning any spirituall jurisdiction in all her majesties dominions , and to visit , reforme , redresse , order , correct , and amend all such errors , heresies , schismes , abuses , offences , contemps , and enormities whatsoever , which by any manner spirituall or ecclesiasticall power , authority , or jurisdictions , can or may be lawfull reformed , ordered , redressed , corrected , restrained : or amended , and the third he calleth the clause of execution , by which power and authority is given to the commissioners to exercise , use , and execute all the premises according to the tenure and effect of the said letters patents . and it seems it was not the intention of the statute , to give any power to the commissioners , which was not given to the queen by this statute , for the clause of deputation shall not be more ample then the clause of annextion , and then the clause of execution refers to the first too clauses , as it appears by the words of that ( that is ) to use and execute all the premises according to the said letters patents , and the premises are expounded by the first clauses , that is , errors , heresies , schismes , &c. and the said letters patents , refer all letters patents before mentioned , where the persons are appointed to be naturall borne subjects , and the materiall manner of jurisdictions , priviledges , and preheminences , ecclesiasticall , siprituall , and to visit , reforme , order , redresse , correct , and amend , all such errors heresies , &c. which by any manner of spirituall or ecclesiasticall , power , authority , or jurisdiction , can or may lawfully be reformed , redressed , ordered , corrected , restrained or amended , &c. so that it cannot be intended that they may proceed in any other forme , but only according to the ecclesiasticall power and jurisdiction and no other , for otherwise they may fine , imprison , and ransome any man at their pleasures , which was never intended by the makers of the said statutes . but only to transfer the power and authority , which at that time was in the bishops , which then were papistes to the high comissioners ; the which the king may alter at his pleasure , and so he cannot the bishops , for they are nor displaceable after their consecration . michaelmas , . jacobi , . in the common place . a man was cited before the high commissioners for poligamy , which was agreed to be a cause examinable & punishable there : and upon examination of the cause , the defendant was acquit , and yet he was censured to pay costs , though that he was acquitted of the crime : and this court was moved for a prohibition , and it was denyed ; for they may hold plea of principall , and then prohibition shall not be granted for the accessary : and the lord coke said , that they have just cause of lawfulnesse of punishing the offence , though they have not just cause of the deed , and peradventure it was very suspitious that he was guilty , and for that he hath only god for his revenger . parkers case . three were cyted to appeare in the court at chester for tenths , and treble damages demanded : and also in the libell it is suggested , that the land is barren , and very unfruitfull , and prohibition was awarded against those joyntly ; and yet it was agreed , that they ought to count upon the prohibition severally . penns case . penn parson of ryton in the county of warwicke , sued for tithes in the ecclesiasticall court before the ordinary , and the defendant here pleads that the same parson was presented upon a symonicall contract , and for that his presentation , admission , and institution were void , by the statute of . eliz. and the symony was for that , that it was agreed between the said parson and another man , that was brother to the bishop of lichfield and coventry , who was patron of the same church ; that if he should procure three severall grants of three severall next avoydances , to them severally granted , to surrender their said severall grants , and procure the said bishop to present him when the church became void ( that being then full of an old parson being deadly sick ) that he would make to him a lease of parcell of the tithes of his rectory : and the brother of the said bishop procured the said grantees to surrender their severall grants accordingly ( the church being then full . ) and also after when the church became void , he procured the said bishop to present him according to the first contract , and then the said penn made a lease to him of the tenths , and after sued others of his neighbours in the spirituall court for tithes , who pleaded the said symoniacall contract , and here nicholls serjeant suggested , that the judges ecclesiasticall would not allow of this plea there , but the court would not give credit to this suggestion , but said , that if the ecclesiasticall court make exposition of the statute of , h. . against the intent of it , that then they would grant a prohibition , or if they should in verity deny to allow of this plea , and for that advised him that his clyent might offer this plea another time to them , and if they denyed to grant that , they would grant a prohibition . hurrey against boyer . in prohibition awarded in the spirituall court for stay of a suit there for tithes of lands which were the possessions of the hospital of s. johns of jerusalem , upon suggestion that the prior of the said dissolved house of s. johns had this priviledge from rome which was by diverse councells and canons , that is , that the lands of their predecessors which by their own hands and costs they did till , they were tied to pay no tithes , and then by the statute of h. . chap. . of dissolutions which was pleaded , but agreed that this hospitall was not dissolved by this act but by a speciall act made , . h. . chapter . by which their corporation and order was dissolved , and their possessions given to the king , with all the priviledges and immunities belonging to that , and the king granted that to the plaintiff in the prohibition , and if he should hold them discharged of payment of tithes , was the question ; it was urged by harris serjeant that this immunity was annexed to the corporation of the prior and his brethren of the said hospitall , and that that was determined by the dissolution of the said hospitall , and doth not come to the king , and he saith , that so it hath been adjudged in the kings bench , against the booke of . eliz. dyer . . . coke the bishop of winchesters case . b. and the arch-bishop of canterburies case , . b. and . eliz. dyer . . and he said , that it was not given to the king by the statute of , h. . of dissolutions , for that was given by act of parliament , and this was not intended by the statute of . h. . as it appears by the arch-bishop of canterburies case : nicholls serjeant argued to the contrary : and he cited a cannon made by the councell of mag. and another made by innocent the third , in the year . and diverse others , and also the statute of , . hen. . . and hen. . . and he said that the pope had authority amongst spirituall men , and might grant to them freedoms of speciall things ; and he saith , that if land be discharged of payment of tithes by prescription of not tithing , and this land came to the king , yet this priviledge remaines , and also he urged , that these priviledges are given to the king by the statute of , h. . of dissolutions , by which all hospitalls , as well dissolved , lost , surrendred , granted , or , &c. to the king , as those hospitalls which should be dissolved , lost , &c. and by this the possessions , lands , &c. are given to the king in the same plite and case , as they were in the hands of the hospitallers themselves ; and he affirmed the booke of . eliz. dyer . . to be good law , and the archbishops of canterburies case . coke . b. and the bishop of winchesters case . b. and . eliz. dyer . . . and also the words of the statute of . h. . . gives to the king , not only the mannors , houses , &c. but also all liberties , franchises , and priviledges , of what natures , names , or qualities soever they be , appertaining or belonging to the said religion or the professors thereof , by which he intends that this freedome to be discharged of tythes , and so concludes that the prohibition shall stand , see the rest after , easter . jacobi . forde versus pomroy . upon a prohibition the case was this . an unmaried woman being proprietor of a parsonage , tooke to a husband , a parishoner within the parish , set forth and devided his tythes , and those immeadiatly tooke backe , and the husband alone sued for the treble value , according to the statute of the . ed. . and two points were moved . first , if that were a setting forth within the statute , and by the court that it was not , and so hath been adjudged in . and . of eliz. and . jacobi , if the husband may sue for the treble value without naming his wife , and to that the court would be advised , for though , that the husband may sue alone where a thing is personall , for which he sueth , as the bookes of . ed. . . . ed. . . . ed. . . and . are ; yet where the statute saith , that the proprietor shall have suit for the not setting forth , &c. the husband is not intended proprietor as the statute intends , but the wife , and for that the wife ought to joyne , see more . wagginer and wood , pasche . jacobi , in the kings bench . wagginer sued wood in the court of requests , for that , that wood had estopped his way , and in the bill of complaint , there was no expresse of the place , the county , nor to what place the way did lead , and for that it was demurred to the bill there . and notwithstanding they ordered the defendant wood to answer , and the atturney came and moved the court for a prohibition , and it was granted to him , for they could not determine the right of a way . glover and wendham . hendyn of grayes inne , moved the court for a prohibition , and the case was this . a man dwelling in a parish , that is , dale , hath land in his occupation in the parish of sale , the wardens of the church of the parish of sale , and other the parishoners there make a tax , for the reparation of the church , for church ornaments , and for sextons wages , amounting to the sum of l. and the tax of the church being deducted , commeth but to l. only . and now the forreigner which dwells in dale , is sued in the court christian , by the wardens of the church of sale , for his part of the tax ; and he praies prohibition : and hendyn saith he well agreed the case of jefferies . coke , that he should be charged if this tax had been for the reparation of the church only : for this is in nature reall . but when that is joyned with other things , which are in nature personall ; as ornaments of the church , or sextons wages , with which as it seems he is not chargable , then prohibition lies for all ; flemming cheife justice : and williams justice , thought fit that he should not have a prohibition : for as well the reparations of the church as the ornaments of that , are meerely spirituall , with which this court hath nothing to do , and : flemming said , that such tax is not any charge issuing out of land as a rent , but every person is taxed according to the value of the land , but yelverton and fenner to the contrary , that a prohibition did lye ; for the same diversity which hath been conceived at the barr ; and also they said that he which dwells in another parish doth not intend to have benefit by the ornaments of the church , or for the sextons wages , and for that it was agreed by all , by the cheif justice ; williams , and the others , that if tax be made for the reparation of seates of the church , that a forrainer shall not be taxed for that , because he hath no benefit by them in particuler , and the court would advise . michaelmas , . jacobi , in banco regis . henry yelverton moved the court for a prohibition to the admiralty court : and the case was , there was a bargain made between two merchants in france ; and for not performance of this bargain , one libelled against the other in the admiralty court. and upon the libell it appeared that the bargain was made in marcellis in france , and so not upon the deep sea ; and by consequence the court of admiralty had nothing to do with it , and flemming cheife justice would not grant prohibition ; for though the admiralty court hath nothing to doe with this matter , yet insomuch as this court cannot hold plea of that ( the contract being made in france ) no prohibition ; but yelverton and williams , justices , to the contrary ; for the bargain may be supposed to be made at marcellis in kent , or norfolke , or other county within england , and so tryable before us : and it was said , that there were many presidents to that purpose , and day given to search for them . note , upon a motion for a prohibition ; that if a parson contract with me by word , for keeping back my owne tithes for . or . years , this is a good bargain by way of retayner ; and if he sue me for my tithes in the ecclesiasticall court , i shall have a prohibition upon this composition . but if he grant to me the tithes of another , though it be but for a yeare , this is not good , unlesse it be by deed , see afterwards . westons case . a merchant hath a ship taken by a spaniard , being enemy , and a moneth after an english merchant with a ship called little richard , retakes it from the spanyard , and the owner of the ship sueth for that in the admiralty court. and prohibition was granted , because the ship was gained by battaile of an enemy , and neither the king nor the admirall , nor the parties to whom the property was before shall have that , according to ed. . . see . and . phillip and mary , dyer . b. michael . . jacobi . . in the kings bench. a man sues an executor for a legacy in the spirituall court , where the executor becommeth bound by his deed obligatory to the party , to pay that at a certain day , befo●e which this suit was begun in the spirituall court ; and the executor moved for a prohibition , and it was granted , for the legacy is extinct : but by williams , if the bond had been made to a stranger , the legacy is not extinct , fenner seemed that it was so . hillary , . . jacobi , in the kings bench. robotham and trevor . the bishop of landaff granted the office of his chancellor-ship to doctor trevor , and one griffin , to be exercised by them , either joyntly or severally : and it was informed by serjeant nicols , that dr. trevor for . l. released all his right in the said office to griffin , so that griffin was the sole officer , & after died : and that after that the bishop granted the same office to one robotham , being a practitioner in the civil law , for his life : and that doctor trevor surmising that he himselfe was the sole officer by survivor-ship , made doctor lloyd his substitute to execute the said office for him , and for that , that he was disturbed by robotham , the said doctor trevor being substitute to the judge of the-arches , granted an inhibition to inhibite the said robotham for the executing of the said office , and the libell contains , that one robotham hindered and disturbed doctor lloyd , so that he could not execute the said office. and against this proceeding in the arches , a prohibition was prayed , and day was given to doctor trevor to shew cause for why it should not be granted : and they urged that the office was spirituall , and for that the discussing of the right of that appertaineth to the ecclesiasticall courts : but all the judges agreed , that though the office was spirituall , to the exercising of that , yet to the right it was temporall , and shall be tryed at the common law , for the party bath a free-hold in this , see . and . of phil. and mary , dyer , . . hunts case , for the office of the register in the admiralty , and an assize brought for that : and so the cheife justice saith , which was adjudged in the kings bench , for the office of the register to the bishop of norwich , between skinner and mynga , which ought to be tryed at the common law. and so blackleeches case , as warberton saith , in this court for the office of chancellor to the bishop of gloucester , which was all one with the principall case . and they said that the office of chancellor is within the statute of edw. . for buying of offices . and warberton also cited the case of . h. . where action upon the case was maintained , for not maintaining of a chaplain of the chamber in the private chappel of the plaintiff very well , though it was spirituall , for the plaintiff hath inheritance in that . but if it had been a parochial church , otherwise it shall be for the infiniteness of the suits , for then every parishoner may have his action . and so in manner of tything , the prescription is temporall , and this is the cause which shall be tryed at the common law , and prohibition was granted according to the first rule . hillary . jacobi , in the common bench. an attorney of the kings bench was sued in the arches for a legacy , being executor , as it seems , and it was urged that hee inhabited in the diocess of peterborough : and for that , that he was here remaining in london in the tearm time , he was sued here , and upon that a prohibition was prayed , and it was granted accordingly ; for as the lord coke said , though that he were remaining here , yet he was resident and dwelling within the jurisdiction of the bishop of peterborough , and he said that if one lawyer cometh and remaineth during the tearm in an inne of court , or one attorney in an inne of chancery , but dwelleth in the country in another diocesse , he shal not be sued in the arches , master , brothers , and governors of trinity house against boreman . the master , brothers , and governors of trinity house sue in the admiralty court one boreman , for that , that where queen elizabeth by her letters patents under the great seale of england , bearing date the . yeare of her reign , had granted to them the ballasting of all ships within the bridg of london and the sea , and that no ship shall take any ballast of any other but of them : and for that that the said boreman hath received ballast of another within the place aforesaid , hee was sued in the admiralty court. and upon that prohibition was prayed ; and day being given to hear both parties , the master of trinity-house came into the court , and the judges demanded of him for what end the said suit was there begun , if it were to have the defendant in prison , or to have recompence , or for other purpose . but he could not give any answer to that : & upon that the judges saying , that the place being alleadged to be at ratcliffe , is within the body of the county without question , and for that ▪ for the place , shall be tryed at the common law. secondly , the great seale and letters patents of the king shall be expounded according to the course of the common law , and the admiralty cannot punish by imprisonment , pecuniary punishment , nor otherwise . thirdly , the letters patents are void , for , for that one charge is raised upon the subject for the private gain of this private house ; for they would not ballast any ship under d. for every tun of ballast : but if the letters patents have been made for publique good , peradventure they had been good , but a prohibition was granted . note that the said boreman was a dutch-man , and his two ships were arrested and stayed by the admiralls warrant out of the said court , so that he was inforced to find sureties to answer to the said suit , before he could have his ships at liberty . huntley against cage . henry huntly was plaintiff in the high commission court against mary clifford widdow defendant , huntley pretends that he was contracted to the defendant , and upon that complaines to the high court of commissioners , and that she would marry her self to cage , and upon that the arch-bishop then did grant a warrant to a pursivant to attach cage , and the said mary clifford , and upon that they were arrested by force of the said warrant , and upon that they were committed to prison , and being imprisoned , an obligation of l. was taken by the said commissioners of the said mary clifford , by which she was bound to the king with condition , that she should not marry her self , nor contract to any other , untill the same suit was determined in the same court , and also to appear before the judge of the arches within nine dayes , after notice of that given . and then being dwelling in h●lborn , after that sir william armstrodder obtained the said obligation of the king , pretending that that was forfeited ; for that , that the said mary clifford had married her self to cage , before that the said suite was ended and determined . and upon that the said mary clifford was another time cited before the high commissioners , and a suit was there promoted against her ( ex officio ) by serle the kings proctor , also had the th part of all fines and forfeitures which grew to the king by reason of the ecclesiasticall courts ; and then was articled against her ; first , that she was marryed or contracted to cage , & to that she refused to answer , for that , that it was the direct question upon which the forfeiture of the bond depended , and then this article was referred to some doctors , who upon consideration seemed that the article ought to be reformed , and upon that the article was made that she lived single and unmarried in a house with the said cage , which was as much as the first , for shee could not make any direct answer to that , without discovering whether the bond were forfeited or not , and upon all this matter a prohibition was prayed to the high commission court , for the said mary clifford . and all the justices , that is , coke cheife justice , walmesley , warburton and foster agreed that the obligation was void , for that it was taken by duresse of imprisonment , for they can not imprison any . secondly that they ought not to examine any man upon his oath , to make him to betray himself , and to incur any penalty pecu●iary or corporall , and foster cited a judgment in the exchequer , in ralph bowes case , where an english bill was exhibited against one for bringing into england , cards without license , and one which had a monopoly upon that exhibited the said bill , and upon that the defendant demurred in law upon that , and it was agreed that the defendant shall not be compelled to answer to that upon his oath , for that , that he had then incurred the danger of a penall statute . thirdly that they cannot take any obligation , by which a man shall be bound to appear in another court , but only in the court where the obligation is taken , no more then the judges of this court may take obligation of any man to appear before the councell in the north : and walmesley also seemed , that these high commissioners ought to meddle only with things of the most high nature , and not of things which concern matrimonie , and the ordinary jurisdiction , and coke said that the high commissioners cannot meddle with any civill causes betwixt party and party , as keeping back tithes , or not payment of a legacy , and lawfullnesse of marriage , but the causes with which they intermeddle ought to be criminall , for otherwise they dissolve all ordinary jurisdiction , and by their sentence every man shall be concluded , for he cannot appeal nor have any other remedy , and also he said that in civill causes , the high commissioners , cannot send a pursivant to arrest any man by his body , for that was adjudged in humptons case , . eliz. by anderson and his companion , judges in their circuit in the county of northampton , with conference had with all the judges of england , where the case was , a pursivant having a warrant to arrest the body of one for incontinency , and to have him before the high commissioners , and a constable came in aid of the said pursivant in execution of his warrant , and was slain , and was adjudged as before , that it was no murder , and the reason was , for that , that the high commissioners cannot award any warrant or processe to arrest the body of any man , but if the warrant had been lawfully awarded , it was agreed that it should be murder , but as this case was , it was resolved to be but man-slaughter , and also he said they cannot take in civill causes , where they have no jurisdiction , but in criminall causes where they have jurisdiction , it seems they may take obligation as the case requires . but he would not dispute that nor affirm nor disaffirm it , but as the principall case was , the obligation was made by duresse , and so it may be avoyded , and also he seemed that they could not examine any lay man upon his oath , but in causes matrimoniall and testamentary , and he said that so was the common law before the making of that statute of articulis cleri . as it appears by a canon made by ottamon which was a legate a latere from the pope in the h. . and canonicall , by which is recited , that where such were drawn in length , because that lay men were examined upon their oathes , and therfore it was provided that lay men should be examined upon their oathes , although it did not concern causes testamentary nor matrimoniall , the custome of england to the contrary thereof notwithstanding , see fitzherberts natura brevium . a. cromptons justice of peace fol. . b. register , b. and hyndes case . eliz. or the margin in scrogs case dyer . b. so also lamberts justice of peace , that those things are to be given in charge by the justice of assise , and coke saith that the writ in the register was framed before the statute of articuli cleri . and also he cited one lees case , who was committed for hearing of a masse , and refused to be examined upon that upon his oath , and had a prohibition , and so he agreed that a prohibition should be granted , and upon that it was awarded accordingly . note that a prohibition was granted to the high commission court , for that , that they examined the lawfullnesse of a marryage . symonds against greene. note one suit was before the high commissioners , and . were brought by pursivants before them , for that that they were present at a clandestine marraige , and it was urged , that this was not to be punished , by any inferior ordinary , in any of their consistories ; for the contract was made in the diocesse of the bishop of worcester , and the marriage in the diocesse of glocester , and the preist which married them , inhabited in the diocesse of oxford . and yet prohibition was awarded , and the justices were of the opinion , that every of them , for which the pursivant was sent , might have an action of false imprisonment against him , for they cannot use any other processe but cytation only . admirall court. note that it was urged by haugton , that the intent of the statute of , r. . chapter . was not to inhibite the admirall court , to hold plea of any thing made beyond sea , but only of things made within the realme , which pertaines to the common law , and is not in prejudice of the king or common law , if he hold plea over the sea ; and that this was the intent of the statute appeares by the preamble . but to this coke saith , that the office of the admirall was an ancient office , though it hath been otherwise conceived by some , for he hath seen records and libells and proceedings in the time of king iohn , where he was called marina anglie , in the time of ed. . and also he said that the words of the statute are in the negative . that is , that the admirall nor his deputy , doe not meddle from henceforth of any thing done within the realme , but only or things done upon the sea ; and he said that it was adjudged in one wrights case , that a thing made at constanticople shall notbe tried in the admiralty , for itought to be made upon the deep sea , otherwise they shall hold no trial of that , see . or . of ed. . ed. f , obligation , and if a man be slaine or murthered beyond sea , the offender shall not be punished in the admiralty : walmesly and warburton justices , agree , that if a thing be done beyond the sea , and may be tried by the common law , there the admirall court shall have no jurisdiction . but if an obligation beares date beyond sea , or be so locall that it cannot be tried by the common law there , if the admirall hold plea of that , prohibition shall not be awarded , for it is not to the prejudice of the king , nor of the common law . but if the party can have his remedy by the common law , the common law shall be preferred . and if at the common law one matter comes in question upon a conveyance , or other instrument made beyond sea : according to the course of the civill law , or other law of the nations where it was made ; the judges ought to consult with the civilians or others which are expert in the same law ; and according to their information , give judgement , though that it be made in such forme , that the common law cannot make any construction of it . michaelmas . jacobi . in the common bench. if a parson agree & contract withme , that i shall keep back my own tithes if that be made after that i have sown my corn , and for the same year only , this shall be good : and if the parson sue in the spirituall court for tithes , i shall have a prohibition ; but if it be for more years then one or before the corn be sowed , this shall not be good , by coke and foster against warburton , and coke said it was adjudged in the kings bench in parson boothes case , that a contract made with a parishioner for keeping back of his tithes for so many years as he shall be parson , was not good , and so it was wellowes case here also , but it was agreed by them all , that such a contract or agreement for the tithes of any other was void , but only of the party himself , which was party to agreement , and that ought to be made by way of keeping them back . see before , easter . of james , see h. . and the . h. . . b. pasche . . jacobi in the common bench. the question was upon a motion to have a prohibition to the president and councell of wales , if that shall be granted without action hanging . and coke cheife justice said , that the record of the booke of . h. . agreed with the report , and is witnesse , john prisott , and . ed. . is adjudged in the point ; but yet he advised that there shall be information . walmesley justice said that this is no action . but coke , foster , and warburton said , that it is an action fufficient , upon which a prohibition shall be granted , and coke said , that if they hold plea of a thing , out of their instructions ; he would grant prohibition without action hanging . but if they proceed in erronious manner , in a thing which is within their instructions , he would not grant prohibition without action hanging , or information . sir william chanceys case . sir william chancey , was cited before the ordinary of the diocesse of peterbrough , and sentenced to do pennance for adultery ; and this he commuted , and after that he lived in adultery with one in his house , and had two bastards by her , and continued in adultery with her for many yeares : and for that he was cited before the high commissioners , and for that , that he would not allow his wife competent allimony ; who had seperated himselfe from her company , in respect that he lived in adultery , as aforesaid ; and for that , that he refused to become bound to performe the order and the sentence of the high commissioners , he was committed to the fleete , and he praied habeas corpus for his inlargement , and also a prohibition to be directed to the high commissioners ; and it was moved by nicholls that fining is not justifiable by the high commissioners no more then imprisonment ; he sayd that he was cited out of his diocesse against the statute of . h. . the which statute is commanded to be put in execution by the stat. of el. secondly , the offence that is adultry , is not an enormious-crime , and for that shall not be punished by the high commissioners , as it appeares by the statute of . el. but by the ordinary . thirdly , the high commissioners by the stat. of el. ought to observe the same course and order in their proceedings , that the ordinary used before the making of the statute of . el. &c. that they could not fine nor imprison . but he agreed that the statute h. gives authority to the ordinary to imprison for adultery , but then the person ought to be ecclesiasticall , so that he agreed , if sir william chancey had been an ecclesiasticall person , the ordinary might imprison him for adultery , and for allimony they ought to give no remedy if the husband would inhabit together with his wife ; as he sayd sir william chancey desired . but if the husband refuse to dwell together with his wife , or thrust her out of his house ; and will not suffer her to dwell with him , then the ordinary may compell the husband to allow allimony for his wife ; but the high commissioners ought not to proceed upon that , for this is no erronious crime , for by that the party shall loose his benefit of appeale , which he hath from the ordinary , to the metrapolitan , for here the party cannot appeale to any , nor hath any remedy . if the queen will grant commission to reneue , and so he concluded that , for that these matters appeare upon the returne of the habeas corpus to be the causes of his commitment , he praied that sir william chancey might be delivered out of prison : and prohibition of staying the proceedings of the high commissioners . doderidge the kings serjeant for the case of sir william chancey argued that the returne consisted of two parts . that is , adultery and allimony , and to the manner of the proceedings he would not speake ; for he said that the court had ajudged , that the high commissioners by the statute of . eliz. ought not to proceed upon any offences , but those which are enormious ; but he intended that the offence at the first was not enormious , being but adultery and allimony , yet when sir william chancey was sentenced for that before the ordinary , and then commuted his pennance , and after that lived divers yeares in adultery with two severall women , and had two bastards ; and then he became incorrigible , and by consequence the offence is become enormious , and is properly to be determined before the high commissioners , and so praied he might be sent backe , and that no prohibition should be granted ; and at another day , foster and warburton said , that the high commissioners ought not to meddle with these matters . nor could not fine nor imprison for that : but walmesley said that the statute of . eliz. hath referred that to the discretion of the king , and the king by his commission , hath given them power to medd●e with that ; and also he seemed that this was an enormious crime for this is , against an expresse commandment , that is . thou shalt not commit adultery , and he intends there can be no greater offence then that , and it seems to him that the word enormious ought not to be so expounded as it is expounded by the other judges , that is , an exorbitant crime , but enormious is where a thing is made without a rule or against law , for in every action ●f trespasse the word is used ( et alia enormia ei intulit ) and yet these are not intended exorbitant offences , but other trespasses of the nature of them , which are first expressed perticulerly , and so the statute hath been expounded for many yeares , and to the imprisonment he said , that the high commissioners have imprisoned for the space of . yeares , and though that the statute doth not give power to them to imprison , yet this is contained within the letters patents , and the statute hath given power to the king to give to them what authority he pleaseth by his letters patents , and for that , that it hath been used for so long a time he would not suddainly alter that , but gave day till the beginning of the next tearm for the argument of that . coke cheif justice said , that it was agreed by all that the imprisonment was unlawfull : and if a person be imprisoned which hath the priviledge of this court , this court may deliver him without bayle , for the king is the supream head by the common law , as to the coercive power , and that the letters patents of the king cannot give power to imprison , where they cannot imprison by the common law , and so it was adjudged in sympsons case , . eliz , which was cited before the high commissioners for adultery with fists wife , and adjudged there that they cannot imprison for that ; and he saith that an exposition with the time is the best , and for that see the ninth of eliz. dyer , and the of eliz. and also it appears by the statute of . eliz. that awards a ( capias excommunicatum ) which could not be imprisoned before that , and upon this sir william chancey was bayled ; and after by meditation of the metrapolitan , he was reconciled to his wife , and this was the end of this businesse . pasch . jacobi . in the common bench. as yet urrey against bowyer . hvtton serjeant argued for the defendant , the question is , if lands which were parcell of the possessions of the hospitall of saint iohns of jerusalem should be discharged of tythes by the statute of . h. . or . h. . in the hands of the patentee , and he seemed that the priviledge was personall and annexed to persons of the said order ; for it is confessed , that it came by reason of the order of the cestercians , as appeares by the canon : the words of which are ; that they should hold their lands , &c. also it appeares by the statute of . h. . . that it is personall by which it was enacted , that the religious of the order of cestercians , that had purchased bills to be discharged , to pay tythes , should be in the state they were before ; by which it appeares that it is annexed to their persons , and not to their lands , so that their farmers cannot take benefit of that , secondly , the priviledge was annexed to this order by canon , which is a thing spirituall , and hath no power to meddle with the lands of any man , but the proceeding of that ought to be by inhibition , or excommunication , see . h. . . . h. . . this priviledge by the canon which gives that , shall be taken strictly . and so is the opinion of their own expositors , see panormitan canon . so that there is an apparant difference between that and the lands , which came to the king by the statute of . h. . for by that the king is discharged of paiment of tythes , and so are his patentees . it seems to me , that the construction of the cannon may be in another course different from the rules of the common law as it was ajudged in buntings case ; that a woman might sue a divorce without naming her husband very well , and . h. . . the pleading of the sentence , or other act done in the spiritual court , differs from the pleading of a temporall act done in temporall courts , and h. . . a , administration was committed upon condition , that if the first administrator did not come into england , that he should have the administration , which is against the common law , for there one authority countermands another : and ed. , . a prior which hath such priviledge to be discharged of tithes , makes a feoffment , and his feoffee payes tithes to the prior , and this was of lands which were parcell of the possessions of saint johns of jerusalem , and upon that he inferred that this priviledge is personall , and if it be so ; it is determined by dissolution of the order as it is determined in , h . . that all parsonages impropriate to them , by the dissolutions are become prsentable and so of these which were annexed to the templers , for these shall not be transferred to saint johns , though that the lands are ed. . . by herle accordingly fitz. natura brevium k. and , . h. . . land given in frankalmaine to templers and after transferred to hospitallers of saint johns , the priviledge of the tenure is paid , and so shall it be in case of tithes , being a personall priviledg that shall not be transferred to the king , and to the statute of . h. . the generall words of that do not extend to discharge the land of tithes , though that the statute makes mention of tithes , if there be not a speciall provision by the statute that the lands shall be discharged , and this appears by the words of the statute of , , h. . where the general words are as generall and beneficiall as the words of this statute , and yet there is aspeciall provision for the discharge of the payment of tithes , by which it appears that the generall words donot discharge that , and so the generall words of ed. . are as larg and beneficiall as the generall words of the statute of h. . and yet this shall not discharge the land of payment of tithes , and this compared to the case of the marquesse of winchester , of a writ of errour , that , that shall not be transferred to the king by attainder of land in taile for treason by the statute of h. . or h. . and so of rights of action ; and so it was adjudged in the time of h. . that if the founder of an abby which hath a corrody be attaint of treason , the king shall not have the corrody ; and he agreed that the hospitall of saint johns of jerusalem is a house of religion for this is agreed by act of parliament , and the word religion mentioned in the statute more then seventeen times , and also it seems to him that the statute of h. shall not extend to that , for this gives and establishes lands which come by grant , surrender , &c. and that shall not be intended those which come by act of parliament , no more then the statute of eliz. extends to bishops , . and . phillip and mary , dyer , . . the statute of westminster the . chap. . which gives ( contra formam collationis ) to a common person , founder of an abby , priory , hospital , or other house of religion , without speaking expresly of a bishop ; and yet it seems that this extends to an alienation made in fee simple or fee taile by the bishop , ed. . forfeiture . but it is resolved in the bishop of canterburies case , coke , that the statute of h. . shall not extend to these lands which come to the k. by the statute of ed. . to make them exempt from paying of tithes , and to the case in . eliz. that is but an opinion conceived , and that the prior hath this priviledge from rome , and that the farmer shall pay tithes , and the question was in the chancery ; and upon consideration of the statute of , h. . it seems that the patentee himself shall be discharged ( as long as by his own hands he tills it ) and the statute of , . h. . upon which the state of the question truly consists , was not considered , and also it was not there judicially in question . and to the case of spurling against graves in prohibition , consultation was granted , for that , that the statute was mistaken , and so the award was upon the form of the pleading only , and not upon the matter , and so he concluded , and prays consultation , houghton serjeant to the contrary , and he agreed that it is a personall priviledg : and if the order of st. johns had been dissolved by death , that then the priviledg shall be determined , and this appears by the stat. of . h. . . before cyted : and also the case of . eliz. dyer , . . did doubt of that : but he relyed upon the manner & words of pleading ; that is , that hospitallers are not held to pay tithes , & it is as a reall composition made betwixt the lord and another spirituall person , of which the tenants shall take advantage , as it is resolved in the bishop of winchesters case . also as if a man grant a rent charge , if the grantee dye without heir , the grant is determined : but if the grantee grant that over , and after dyes without heir , yet the rent continues , . h. . or if tenant in tayl grant rent in fee , and dies , the grant is void . but if he after suffers a recovery , or makes a feofment , the rent continues good till the estate taile be recontinued , as it is resolved in capels case . so here the order of templers hath been determined by death , the priviledg hath been determined , but insomuch that the land was transferred by parliament to the king , this continues . also the words of the statute of . h. . are apt , not only to transfer all the interest which the pryor had in his lands , but also his priviledges and immunities to the king ; and he agreed , it is not material if the words tythes are mentioned in the statute or not . but the word upon which he relyes , and which comprehends this case , is the word priviledg , which takes away the law ; for where the law binds them to pay tithes , the priviledg discharges them : and the words of the statute are taken in the most large extent , that is , all mannors , &c. priviledges , immunities , &c. of what nature , &c. be they ecclesiasticall , or temporall , which appertain and belong , &c. by or in the right of their religion ; but the priviledges and immunities they have in the right of their religion , and these the statute of . h. . gives to the king , and there is no cause that they should surmount , or that the statute should give to them more favour then the former statute hath given to those religious houses which were dissolved by the statute of . eliz. for the hospitallers of s. johns were favourers and maintainers of the popes jurisdictions as well as the others , as it appears by the statute of . h. . also the words of . h. . hath only the words of the king and his successors , and doth not speak of his assigns , which words are expressed in the statute of . h. but it is provided by . h. . that the king cannot use at his will and pleasure , which amounts to so much . also the statute of . h. . extends to all religious houses by expresse words : and it shall not be intended , that the intent of the makers of the statute was to omit that which were to be of the order of s. johns of jerusalem , when the mischeif was in equal degree . and it hath been agreed that they are religious persons , and that they were under the obedience of the pope , for so they are described in the statute of . r. . by which the possessions of the templers was transferred to them , so that on the matter they are religious , which shall not be intended so largely , as every christian may be said religious , but secular , and regular , which vow obedience , chastity , and poverty ; and for the proof of this , he cyted a president . also it seems to him that the statute of . h. . extends to those lands which come to the king by the statute of . h. . and it is not like to the arch-bishop of canterburies case , coke , . upon the statute of . ed. . for that statute gives the lands to the king for other causes , and not for the same causes which are contained in the statute of . h. . but the statute of . h. . is for the same cause , and with the same respect to religion . but if these lands have come to the king by exchange , or by attainder , then they shall not be intended to be within the statute of . h. . but if another statute be made in . h. . by which all religious houses have been given to the king , this shall be intended within the statute of . h. . and the judges before whom the cause depended judicially , ought not to be ignorant of that , and so he prayed that a prohibition might be . shirley serjeant for the defendant , at another day in trinity tearm . jacobi , argued , that the question only depended upon the statute of . h. . upon which the prohibition is founded with the statute of . h. . by which the lands of monasteries are given to the king , do not extend to those lands which are given after by parliament . but he intented that the constitution which discharges the templers of the payment of tithes is spirituall , and extends only to spirituall persons which may prescribe in not tything ; see . ed. . . of coke , the bishop of winchesters case , . also he intended when an appropriation was made to the templers , that this is determined by dissolution of their order . so upon the statute of h. . of priors aliens , which have impropriations , or which have rent issuing out of them ; and after the impropriation is dissolved , the rent is gone , for the impropriation is dissolved . also he took exception to the pleading , for that , that it is only a branch of the statute of . h. . and then by vertue of the premises he was seised , which is not good : and so hee concluded , that it was a good cause of demurrer upon the prohibition , and prayed consultation . barker serjeant for the plaintiff seems the contrary , and yet he agreed , that he could not take benefit of the statute of . h. . for that , that these lands came to the king by another statute , but he relyed upon the words of the . h. . which was made only for the dissolution of the hospitall of st. johns of jerusalem , tythes are as ancient as any thing that the church hath , and before that any law was written , for abraham payed tithes to melchisedeck , but it doth not appeare that he paid the tenth part ; but tithes are due by the judiciall law of god , and the king hath power to appoint what quantity shall be paid . but at the beginning there were sacrifices , oblations , and tithes and it was ordained by edgar , king of this realm , that tithes should be given to the mother church . also edmund , ethelstone , william the conquerour , and the councell of magans specially provided that tithes should be paid , but did not appoint when they should be paid . but the first law which appointed the quantity was made in the time of edw. . and this ordained when they ought to pay the tenth with the feare of god. and it was resolved in fox and cresbrooks case in the commentaries , after severance they are temporall , and action lyes against him which carries them away , as of mortuary , as it is resolved , . h. . . . and before the councell of lateran , every one might pay his tithes to what person he would , and then were paid to monasteries as oblations : but of tithes which are due to any by prescription , hee which payes them hath no such election , but ought to pay them to him which claims them by prescription , . h. . . if a parson of a parish claim tithes in another parish as portion of tithes due by prescription to his rectory , he ought to shew the place specially . so if nunns prescribe to have a portion of tithes , they ought to shew the place , for it is a question if they are spirituall , or not ; for their office is only to pray in their house , . ed. . so the book of entries , if a man claim tithes to his pupil , he ought to shew in what place the tithes lye , in the . ed. . the order of the templers was dissolved , and their possessions annexed to st. johns of jerusalem : and they did not claim by any bull of the pope , nor other spirituall canon but by prescription , which is priviledg and private common law , and this appears by the statute of westminster , chap. . that is , that they are conservators of his priviledges . also he saith , that the statute of . h. . discharges farmers without speaking of priviledges . and the statute of . h. . . useth the same words which are contained in the stat. of . h. . that is , that none shall put in execution any buls , containing any priviledges to be discharged of payment of tithes . and mephams canon in time of ed. . saith , let the custome be observed with the feare of god. and another canon , that custome of not tything , or of the manner of tything , if they paid lesse then the tenth part , see panormitan upon that ; seek of the case between vesey and weeks in the exchequer , upon the statute of . h. . for the dissolution of small monasteries . also the lord darcy in quo warranto , was discharged of purveyance by patent granted by the king edward . of such priviledges which such a one had , and by the same reason the king shall be discharged of tythes by the act of parliament ; also he remembred the book of . eliz. dyer , . . to be resolved in the point : and also . eliz. dyer , the parson of pekerks case , . . upon the statute of . h. . and so concluded , and prayed judgment for the plaintiffe , and that the prohibition should stand , and it was adjourned . trinity . jacobi , priddle against napper . upon a speciall verdict the cause was , the prior of mountague was seised of an advowson , and of divers acres of land , and the . of h. . the king licensed him to appropriate that ; and . h. . the bishop which was ordinary assented , and after that , the church became void , that the prior might hold it appropriate ; and . h. . the incumbent dyed , so that the appropriation took effect , and was united to the possession of the rectory appropriate , and also of the land out of which tythes were due to the said prior , in respect of the said rectory , and then the priory is dissolved , and the impropriation and the lands also given to the king , by the statute of . h. . which granted the impropriation to one , and the lands to another . and if the patentee of the land shall hold it discharged of the payment of tythes , in respect of that unity , was the question : and harris , serjeant for the defendant , in the prohibition , that the unity ought to be perpetuall and lawfull , as it was adjudged between knightley and spencer , coke , . a. cyted in the arch-bishop of canterburies case ; and for that unity by , or by lease for years , or for two or three years , as in the case at the barre , shall not be sufficient to make discharge of the payment of tithes : and so it was adjudged , pasche . eliz. rot. . between chyld and knightley , that is , that the unity of the possession ought to be of time , that the memory of man doth not run to the contrary . and in the argument of this case it was said by popham cheif justice , that if no tithes were paid after the statute , that then it shall be intended , that no tithes were paid before the statute , and so he concluded , and prayed consulation , see coke . a. the arch-bishop of canterbury for the reason by which unity of possession is discharged of payment of tithes , that is , for that , that some houses of religion were discharged by buls of the pope , and many were founded before the councell of lateran : and for that it shall be infinite , and in a manner impossible to find by any searches , the means by which they are discharged ; the unity is no discharge in respect of it selfe , for the reasons aforesaid , and none may know if tithes were paid or not before the union : and if tithes be not paid in time of memory by a house of religion , and they lease of that for years , and receive tiths , then the lease expi●es two yeares before the dissolution of the same house , the king shall not be discharged of the payment af tithes by the statute of . h. . by coke and walmesley , against warburton and foster . dorwood against brikinden . upon the statute of ed. . a man libelled in the spiritual court for wood cut , and a consultation was granted ; yet the defendant in the court christian might have a new prohibition , if it appeared the first consultation was not duly granted : so if a man libell for tithes for divers years , and prohibition is granted for part of the years , and after that a consultation is awarded , yet the plaintiffe may have a new prohibition for the residue of the time , notwithstanding the statute of ed. . and that it be upon one selfe same libel . admirall court. note that the admirall cannot imprison for any offence ; but if the court hath jurisdiction of the originall cause , and sentence is there given , this sentence may be executed upon the land , . h. . but no ordinary may meddle out of his own diocesse , . h. . . . h. . the parson of salt-ashes case ; that this court tooke notice of jurisdiction of all ecclesiasticall courts , and ordinaries , for they write unto them for tryall of bastardy and matrimony . and there are . legates , first a born legate , as the arch-bishop of canterbury and yorke , remes , and pylazam . second , a latere , as all cardinalls . the third a lagate given , as those which have their authority , by commission , and lynwood provinc . saith , that the arch-bishop of canterbury , as arch-bishop , cannot meddle out of his diocesse of canterbury and his peculiars , but as a legate borne , which is in respect of his office , he hath prerogative , and if a man inhabit in one diocesse , and ought to pay tithes to another which inhabits in another diocesse , there the ordinary ought to prefer the suit to the metrapolitan , but seek what ordinary shall transfer it . trinity . jacobi . in the common bench. jones against boyer . henry jones parson of bishopton sued bowen the executor of holland , the last incumbent in the arches for dilapidations , upon which a prohibition was prayed upon the statute of , . h. . for that , that it was sued out of his diocesse , which was saint davids , but it appears that the vicar generall of the same ordinary hath made generall request to the metropolitan , to determine that without shewing any cause speciall , and if the inferiour ordinary may transmit any cause , but only for the causes mentioned in the statute of , . h. . and if the causes ought to be expressed in the instrument , was the question : note that the generall words of the statute of , h. . chap. . rastall citation . are afterwards many particulars , or in case that any bishop or any inferiour judge , having under him jurisdiction in his own right and title , or by commission , make request or instance to the arch-bishop , bishop , or other inferiour ordinary or judge , to take , treat , examine , or determine the matter before him or his substitute . and that to be done in case only where the law civill or canon doth affirm execution of such request or instance of jurisdiction , to be lawfull or tollerable , and for the better discussing of this question , the judges had appointed to heare two doctors of the civill law , which at this day attended the court ; the first doctor martin said , that these generall words have reference to the executor , and not to the maker of the request , and this request may be made for all causes , but ought to be made to him , which hath concurrent or immediate jurisdiction to which appeal may be made , and that the arch-bishop hath ordinary jurisdiction in all the diocesse of his province ; and this is the cause that he may visit , but this jurisdiction is bound and tied up to the ordinary , and when he will leave that at large , then the arch-bishop may proceed , as he is arch-bishop , and the cause of request need not to be contained in the instrument , for when the power which was bound up is unbound and at large , then he may proceed : doctor talbot , that the request is referred to three , to the bishop , dean , and arch-deacon . and the persons to whom the request is to be made are three : the arch-bishop , two bishops , three , or superiour judg , and the bishop and his commissary are all one , and request made by the commissary shall be as good , as request made by the bishop himselfe . also that the president may transmit , and make request to the emperour , as it appeares in the booke of justinian of the lawes , . book . so baldus in reference made of inferiour magistrates to superiour , doth defend , that the arch-bishop is judge of the whole province , yet is bound . so speculata in his title of relations , of which relation shall be made : so in the councell of antioche , that the metropolitan is mediate judge in the first part of the canon , and for that relation shall be made to him . passonilis de officio , &c. disputes : if the arch-bishop may have consistory in the diocess of the ordinary . hostiensis , that the ordinary may transmit a cause , though the parties be unwilling . panormitan in capite pastoralis , . question . decretalls of the canon law. philippus francus upon the decretalls of the canon law , that the arch-bishop cannot meddle in the diocess of any ordinary without his assent . dominicans upon the same decretall : and so he concludes ; that when the ordinary makes a request to the arch-bishop , hee may meddle without the assent of the parties , and the stranger , when the parties assent . and they agreed , that generally the arch-deacon ought to transfer to the bishop , and so the bishop to the arch-bishop : but they agreed also that here in england it was prescription and usage , that every arch-deacon hath used to appeale immediately to the arch-bishop , and so ought the request within this statute to be made accordingly . also they agreed , that if a man inhabite in one diocess , he hath cause to sue for tithes in the same diocess in which he inhabits : and in another diocess , there he ought to sue in the diocess where the defendant did inhabite , and not where the tithes are payable , nor where the plaintiff inhabits , and the principall case was ordered accordingly . michaelmas , . . jacobi , in the common bench. enby , versus walcott . the defendant was sued before the ordinary in the county of lincoln for defamation . and the suit was begun before the last generall pardon , ex officio , and the costs taxed after the time limited by the pardon : and pr●hibition was granted , in so much that all things promoted , ex officio , are discharged by the pardon ; and in so much as the principall was pardoned , the costs being but as accessory shall be also pardoned , notwithstanding that they were taxed after the pardon . powis against bowen . upon consideration had of instructions given to the president and councell of wales , it was resolved by all the justices of this court , that the councell there ought not to proceed upon english bill , which conteins title . but the forme of that ought to be onely , that the plaintiff was in possession for three years : and that the defendants , which ought to be alwayes more then one , riotously , and with force have entred upon him , and so ought to be restored to his possession . and in so much that the bill containes title in this case , and that the defendants have entered upon him , and disseised him in forme of assise , and doth not say riotously and with force , prohibition was granted . butler against thayer . the lord admirall granted a commission under the seale of the admirall court to thayer , for measuring of all the corne which shall be transported from one town or place to another within the creeks , which are within the first bridges , and to have so much for every bushell measuring , and granted , that if any resisted , to arrest them , and commit them till they had found sureties to appeare in the admirall court. and at milton , and raineham in kent , thayer endevoured to put his commission in execution , and butler resisted him , and was for that arrested , and sued in the admirall court , and for stay of that prayed prohibition , & it was granted , in so much that the admirall hath not power to meddle with the first bridges for civill causes , but only for maymes and death of men : but for causes made upon the high sea , where the marriners have the better knowledg in the common law , he cannot try that : see the time of edw. . avowry , . . ed. . . ed. . stamford , . . r. . statham trespass . sir john watts . certain goods of a subjects of the king of spains , were forfeited upon the high sea , and after were brought here into england , & there sold to sir john wats : and the goods were attached in the hands of sir john watts by process out of the admiralty , and there a libell was exhibited against the goods remaining in the hands of sir john watts , and sir john watts was not made party to the suit. and sir john watts prayed a prohibition ▪ in so much that-they bought them in open market : and by this suit in the admirall court , the property will be drawn in question there , where the suite was prosecuted in the name of awlenso de valasco the spanish ambassador , legier here . and prohibition was granted . michael . . . jacobi , in the common bench. jennings against audley . prohibition was prayed to the admirall , and the libell shewed to the court , which contained the contract , was made in the straits of mallico , within the jurisdiction of the admiralty , and doth not say upon the deep sea. and it was agreed , that in all eases , where the defendant admits the jurisdiction of the admirall court , by pleading there , prohibition shall not be granted , if it do not appear by the lybell , that the act was made out of their jurisdiction ; and that , though that sentence was given , yet if that appears within the libell , prohibition shall be granted . note that a man was sued before the ordinary in the diocesse of norwich , for infamous words , and after sentence there given , he appealed to the arches : and the first sentence being there affirmed , he appealed to the delegates ; and before that the proceedings were transmitted , prohibition was granted by this court , in so much that the offence was pardoned by generall pardon . but this notwithstanding the register transmitted the proceedings : and after for his fees due for that , hee exhibited a bill in the court of requests , and prohibition was prayed in this court for to stay his proceedings there . and it was granted , in so much that the originall ground of the suit , that is , the infamous words were pardoned by the generall pardon ; and for this all the proceedings were erroneous , and their transmitting after . and afterwards the prohibition received willingly ; and for these causes prohibition was granted to the court of requests . thomas baxter against thomas hopes . in prohibition the plaintiff suggests , that within such a town was such a custome ; that every inhabitant which maintained a family , and dairy , for manuring his land , and maintenance of his family , have used of time out of memory , &c. to pay tythes of corn , growing upon his farm , in kind , and by reason thereof have used to be discharged of after crop , of the said land . and also that they have used to pay tythe milk , and tythe calves in kind , and by reason thereof have been discharged of tythe of yong and barren beastes , and the plaintiff suggested further , that he occupied a farm and maintained a family , and dairy , for the manurance of that , and maintenance of his family ; and hath paied his tythe corn , and milk , and calves , in kinde : and for that ought to be discharged of tythes for the after crop , and for yong and barren beastes , and for the tenthes of which , suit was begun in the court christian , and upon demurrer joyned upon prohibition , the custome was debated whether it were good or no , and it was moved first by houghton serjeant for the defendant , that the custome was not good , insomuch that by that the plaintiff was not to pay more , then by the law he ought , for he ought to pay tythe corne , and milk and calves , in kind : and this is no more then the law compells him to do , and this cannot be a consideration to discharge him of other things . for all things which renue ought to pay tythes , of common right , as after pastute , and barren cattell , and corne , and milk . and all other things which renue ; if it be not good custome to the contrary , which is grounded upon consideration ; and then to consider how much consideration shall be valuable in other cases , and what not : and to that it appeares in . ed. . . and ; in trespasse upon the statute of . rich. . the defendant pleads accord , that the plaintiff entred into his land againe , and agreed that that was not barr , insomuch as agreement without satisfaction is not barr , and entry into lands , is no more then he might do without the agreement , and for that it is not good for default of consideration ; so in . h. . . a. in trespass for goods taken ; the defendant pleads arbitrement , that is ; for that that the defendant , hath taken the goods of the plaintiff , and that he should deliver them to the plaintiff , in full satisfaction : and agreed that this is no good award , insomuch that this cannot be satisfaction , for that that the goods were the proper goods of the plaintiff : and although , that he hath his goods againe ; yet he is not satisfied for the taking . but if the award had been , that the defendant should redeliver his goods , and carry them to such a place certain , at his own costs and charges , then it had been good : see . ed. . accordingly . so in an action upon the case , upon an assumpsit made in consideration that the plaintiff hath payd due debt , is not good , for this is no consideration , and so in the principall case the prescription is not good , insomuch that he hath not suggested more or other consideration , which by the law he ought to do : but he agreed that if he had suggested , that the plaintiff , had plowed and manured the land , and disposed of the tythes of the corn , for the benefit of the parson , in other manner then the law compelled him ; then the first prescription had been good , and so he concluded , and praied judgement for the defendant : hutton serjeant for the plaintiff , in the prohibition seems the contrary , and that the suggestion , and prescription , and custome , contained in that are good : and to the objection , that it is no consideration , that the custome may be founded ; he intended , that this is a ground upon immunity subsequent to the consideration , as of things which are not tythable , as in the generall case of things , which are for the maintenance of the family ; for plowing and manuring of the land , shall not pay tythes , as in a suit for tythes for herbage , suggestion that they were depastured , by labouring cattell , which plowed and manured the land , of which the parson had tythes , or small wood , which are cut or imployed for the fencing of a farm , or fuell spent in the farme , shall not pay tythes ; insomuch that without that , the farme cannot be manured nor the famaly sustained . and so by consequence the parson shall not have any tythe corn , insomuch that no corn will grow without manuring ; and also the parson by those hath the more tyth corn , and so he hath consideration in that , for the better that the farme is fenced and manured the more tythe the parson shall have : so the farmer may be discharged of tythes , for rakeings , insomuch that he mowes and cocks the tythes for the parson at his own costs , and this is sufficient consideration : and also he insisted upon the statute of . ed. . which provides that tythes shall be payd in the same manner , as they were payd for . yeares before , and he cited one jessopps case to be adjudged in prohibition ; pasche . eliz. upon suit in court christian , for flocks , and locks of wooll : and the custome was alleaged , that the owner had woond the tythe for the parson , and in consideration of that , ought to be discharged of tythes , of locks and flocks , if they be not made by covin , to defraud the parson ; and these were demanded by the name of wooll dispersed , and . eliz ; it was adjudged , that tythes shall , not be made for brick , and in prohibition ; the suggestion was grounded upon the generall immunity , and insomuch that it was made of land , for which no tythes are to be payd ; insomuch that it doth not renue , that for this cause tythes ought not to be payd , for the brick which is made of that , and so of mynes , and so loppings , and toppings , and bark of trees shall pay no tythes : but are within the statute of . eliz. . of wood to be falne , as it is resolved in soby and molyns case in the commentaries : and he agreed that for herbage the tenth gate , or proffit of that ought to be payd , if there be not a custome to the contrary ; but in the principall case he intended that ▪ that was payd in the corn , and in that the parson hath recompence and consideration as before , and so he concludes and praies judgment for the plaintiff : dodrigde serjeant of the king argued that the custome is not good , as it is here suggested , for the consideration is of some things which ought to pay tythes in kind , and so upon the matter is no sideration at all , for he intended that tythes should be due by divine right , as due by the manuring and tillage of the occupier , in whose soever hands that the land commeth ; if it be not in the hands of the parson himselfe , h. . . dyer . . and for that a parson shall have tythes against his own feoffment , . ed. a. . coke . albanyes case , . a. h. . b. tythes the accordingly , and unity of possession shall not extinguish them : and also he intended there are two manner of persons , which are discharged of paiment of tythes . one spirituall , the other temporall , the spirituall in respect of their order , and the temporall in respect of custome and prescription , and also by grant , as it is agreed in the arch-bishop of canterburies case , . coke ; but this is in the case of a spirituall man before the statute of , h. . which was capable of them in taking , and that he might prescribe in not tithing , but a lay man cannot be discharged but for satisfaction and consideration , for he cannot prescribe in not tithing , and for that in the case here the thing to be considered is , if it be sufficient satisfaction and consideration , and to that he intended that the payment of a duty , that is tyth corn and tyth hay , cannot be satisfaction & consideration for another duty , and this was the reason of piggot & hernes case , that the lord of a mannor , in consideration of . nobles yearly paid to the parson , prescribes to have the tithes of a hamlet , and in consideration of that , the lord himself and his tenants , were discharged of payment of tithes , but there the consideration and satisfaction was the cause which made the custome good , see . coke . a. and then he proceeded and examined the manner of the satisfaction in the principall case , which is , that the plaintiff shall pay tyth corne and hay , and nothing for milk and calves , but by reason thereof shall be discharged , as if he should say , that because he payeth tythe corne , therefore he shall pay no tithe milk , and he intended that the nature of satisfaction is to give content to the party , as if the prescription had been , that the plaintiff should pay so much money , and in consideration of that , or that he shall make the tithe in cocks , or rake it , or mow it at his owne charge , this is a good prescription , aed there are diverse presidents of that , but no president is of this forme , as the case here is ; for money shall be intended the greater value , and more beneficiall for the parson , then his tithes in kind , and money is the value of every thing , and may give contentment to the party which receives it , & he cited bookes of , . ed. . . and h. . . and ● h ▪ . . a. to the same intent which were cited before by haughton , that is , which agree in arbitrement , and the plaintiff entred into his own land , or that the defendant delivered to the plaintiff , his own goods which the defendant had taken from him , it is not good , for it cannot give contentment to the party , otherwise it is , if it be that the defendant shall carry them to another place and there shall deliver them , for it cannot be satisfaction and contentment to the party , and for that , that here the plaintiff hath not made more then the law compells him , and that it was his own duty , and for that the prescription wants consideration , it shall not be good , and also by reason thereof it can be no good discharge , for this cannot be satisfaction , but he said , it was adjudged pasch jacobi between hall and aubery , that money was a good consideration and satisfaction for tithes , and so he concluded and prayed judgment for the defendant ; note that this cause was adjudged hillary . jacobi upon solemn argument by all the judges with one voice , that the prescription was good . haughton serjeant moved for a prohibition , for that the suit was begun in the admirall court upon charter party made beyond sea upon the land , and prohibition was granted , though it be for a thing made in paris , or in another place beyond the sea , if it be not upon the main sea , but if the defendant there admitts the jurisdiction of the court and suffers sentence , then the court will not upon a bare surmise grant a prohibition , after the admittance of the party himself ; if it be not in a thing which appeareth within the libell , that is , that the act was not made within the jurisdiction of the sea , and to this difference all the court agreed . if a court baron divide a debt of thirty pound in severall parcells under forty shillings , and so proceeds in severall actions , prohibition shall be granted , see fitzherberts natura brevium , and h. . hane was cited out of his diocesse into the arches , and he pleaded to the libell , and sentence is given against him for costs , and after that prohibition was granted , and upon that consultation was prayed , for that , that the defendant was the party greeved , and ought to have pleaded the statute , insomuch that the statute was made for his benefit , but if it appears by the libell that the court of arches need not to have jurisdiction , then it seems that the prohibition was well granted , as in sir henry vinors case , he began a suit in the high commission court , for the not serving of a chappell , and the court understanding that they had no jurisdiction , remitted the cause to the ordinary , and yet gave sentence against sir henry vinor which was plaintiff for costs , and for that he prayed a prohibition and it was granted to his petition notwithstanding that he himself was the party , who begun the suit there , as it was remembred by nicholls serjeant . a woman sued in the spirituall court for defamation , and the words were , that thou mayest be an honest woman but thou playest too much with a thing , &c. and prohibition was prayed , insomuch that these words were not actionable ; for in spellmans reports prohibition was granted , for that they proceeded there for calling a minister knave preist , and also by these words , a white cloake is more fitter then a black cloake for him , for action upon the case doth not lye for these words by any law , but the prohibition was not granted . pasch . . jacobi prohibition . tey against cox. prohibition was prayed , for that , that one was cited out of his diocesse before the arch-bishop of canterbury , as keeper of the spiritualties in time of the vacation of the bishopprick , and it was denyed ; but if he had beene to appeare before him as metrapolitan , otherwise it should have been , insomuch that this is against the statute of . h. . and also for his own canon , but in this case the statute of , h. . and also their own canon ; but in this case the archbishop hath done as he ought , and for that the prohibition was denyed , see ed. . fitz. na. bre. . and assis . the case was this , there was a custome that a park hath paid two shillings a yeare , and the sholder of every deere which was killed for tithes , and in consideration of that , had been time out of minde , &c. discharged of tithes , and now the park is dis-parked , and it was moved by harris serjeant , that this dissolves the custome , for when part of the custome is dissolved by the party himself , this determines the residue , for it is adjudged if the land be discharged of tithes by reall composition , then if he sue for tithes in the spirituall court , prohibition by the common law was granted , without other suggestion , but only that he sued there for lay fee , and it was said that it was adjudged . jacobi , that where it was a custome that so many of the bucks shall be paid for tithes in such a park yeerly , and after the park shall be disparked , yet that remaines discharged of tithes , and the custome remaines , and coke cheif justice seemed that tithes are due by divine right , but not what part , for if the tenth part be due dy divine right , then all customes are void . trinity , . jacobi , . in the common bench. note by the statute of . edw. . if a consultation be once duly granted , no new prohibition shall be afterwards granted upon the said libell . but if it be apparent matter that the first was not duely granted , then a new prohibition may be granted by the whole court , and with this agreed the book of entries in the title of prohibition : but this is to be intended to the spirituall judge ; and it seems that the admirall is out of this statute , see . h. . bushes case . note that it was agreed in this case , that if a parsonage be impropriate , and the vicaridge be endowed , and difference be between the parson and the vicar concerning the endowment , that shall be tryed by the ordinary , for the persons and the cause also are spirituall : and there the vicar sues the parson for tythes , and he suggests the manner of tything , and prays a prohibition , and it was granted , and after upon solemn argument , consultation was granted , in so much that the manner of tytheing did not come in question ; but the endowment of the vicaridg only , for that is the elder brother , as the lord coke said , and this was cyted to be adjudged by coke . prohibition . agars case . agar of kingston upon the thames was sued in the ecclesiasticall court for beating of his wife , and for calling her whore , and was sentenced by them to pay to his wife three shillings a weeke for her alimony , and divers fynes were imposed upon him for not performing of that , and also provided that hee should enter into a recognizance for performance of that , and a prohibition was granted , and also a habeas corpus to deliver agar out of prison : michael . . jacobi , blackdens case . blackden marryed one within age , and after disagreed , so that they might marry else-where ; and the first wife had issue by other husbands , and dyed , and blackden was sued in the ecclesiasticall court by an informer , supposing he had marryed a womon , living his other wife . and blackden proves there the disagreement , by which he had sentence for him against the informer , and yet hee was taxed to give to the informer twenty markes for costs , which hee refused to pay , and moved to have a prohibition , which was granted . for it was injustice to allow costs to one which had vexed him without cause , and when they had given sentence against the informer . parkers case , michael . . jacobi parker being a parson of a church , was deprived by the high commissioners for drunkenness , and moved for prohibition , but it was not granted ; and he was directed to have action for the tythe , and upon that the validity of the sentence shall be drawn in question . doctor conways case , michael . . jacobi . conway and his wife were sued before the high commissioners , that is to say , the wife for adultery with sir michael blunt , and the husband for connivency to that , as a wittall , and they were sentenced there for that , and costs taxed in july ; and after the general pardon came , and pardoned all offences before the . day of november before , and upon that the doctor moved for prohibition , and had that , because the offences were not enormious crimes , and the statute , and the commission upon that is to give power to them to proceed upon enormious crimes , and to fyne and imprison for them . also resolved that the generall pardon hath discharged the costs , though that the costs were taxed before the pardon was in print . and this by the relation that hee had at the day before the costs were taxed . cradocks case , michael . . jacobi . cradock bought diverse things upon the body of the county , which concerned the furnishing of a ship , as cordage , powder , and shot , and the party of whom they were bought sued cradocke for the money in the admirall court , and prohibition was granted ; for the statute of richard . is , that the admirall shall not meddle with things made within the realm , but only of things made upon the sea , and that no contract made upon the land shall be held there . and here the contract was at st. katherines stairs in the body of the county ; for it was said that st. katherines is within london , and the major of london hath jurisdiction upon the thames as farre as wapping . and if a murther be committed upon the thames , this shall not be tryed by the admirall : and here terry and peacocks case was cyted , which is related in binghams case in the . reports , and also in sir henry constables case in the . reports , and it was cyted to be adjudged , that if a contract be made at roan in france , that shall not be tryed in the admirall court , for that it was made , upon the land , and not upon the high sea. pasche . jacobi regis , common eench . gaudyes case with doctor newman . the parishioners of the parish of alphage in canterbury , prescribed to have the nomination and election of their parish clark , and the parson of the parish by force of a canon , upon voidance of the place of the parish clark elected one to the office ; the parishoners by force of their custome elected cundy , the parson supposing this election to be irreguler , for that it was against the canon ; sued cundy before doctor newman chancellor of canterbury , and the said cundy was by sentence deprived of the clark-ship of the parish , and the clark of the parish admitted ; cundy moved for a prohibition , and had it granted by all the court , for it was held that one parish clark is a meer lay man , and ought to be deprived by them that put him in , and no others ; and if the ecclesiasticall court meddle with deprivation of the parish clark they incura premunire , and the canon which willeth that the parson shall have election of the parish clark , is meerly void to take away the custome that any parish had to elect him . see the statute of h. . that a canon against common law confounds the roiall prerogative of the king , or law of god , is void ; and custome of the realme cannot be taken away but by act of parliament . see ed. . . the abbot of saint albones hath a charter of the king , to be discharged of collection of tenthes granted by parliament or convocation : the clergy grants tythes in convocation , there is a clause in the grant that no one of them who shal be chosen to be collector , shal be discharged of collection by colour or force of any letters patents , and after they return the abbot of st. albones collector , who pleads his letters patents in discharge of collector , and resolved by the court that the clause in the grant of tenthes doth not take away the exemption of discharge by the letters patents granted . and it was resolved that if the parish clark misdemene himselfe in his office , or in the church ; he may be sentenced for that in the ecclesiasticall court to excommunication , but not to deprivation : and after prohibition was granted by all the court , and held also that a prohibition lyeth as well after sentence as before . trinity . jacobi , common bench. on was cited to appear in the prerogative court of canterbury , which was out of the diocesse of canterbury , and upon that he praied prohibition upon the statute of . h. . which willeth that none shall be cited to appeare out of his diocesse , without assent of the bishop , and prohibition was granted : and yet it was said that in the time of h. ; and reigne of mary , that the arch bishops of canterbury had used to cite any man dwelling out of his diocesse , and within any diocesse within his province , to appeare before him in the prerogative court , and this without the assent of the ordinary of the diocesse : but it was resolved by the court , that this was by force of the power legantine of the arch-bishop , that as lynwood saith , ought to be expressed in the prohibition , for the arch-bishop of canterbury , york , pisa , and reymes were legati nati , and others but legates a latere . hillary , . . jacobi , in the common bench. beareblock against reade . in an action of debt brought by beareblocke against reade , administratrix to her husband , upon a judgement given in this court : the case was this , the plaintiffe had judgment against the husband , and after sued him to an vtlagary , and upon that he brought a writ of errous , and removed the record into the kings bench , and reversed the judgement for the vtlagary . but the first judgment was affirmed ; and then the husband acknowledged a statute , and dyed : and the wife took out letters of administration , and then the statute is extended against the wife , and all the goods which shee had of the intestates taken in execution . after which beareblock in the kings bench sueth a scirefacias upon the said judgment against the said administratrix , to have execution , and shee pleads upon that , the said statute in barre , and the extent of that , and that more then that , shee hath nothing to satisfie , and this was adjudged a good plea. and then the plaintiffe being not satisfied , he hrought an action of debt upon the said judgment in this court , and in barr of that , the wife pleaded all this matter in barr , as aforesaid , upon which the plaintiffe demurred in law , and the judges seemed to incline that this was no barr ; for though that the wife hath not any means to aide her selfe , or to prevent the extent of the statute , yet it seemed to them that this should not prevent the execution upon the judgement , and that the wife might have audita quaerela against the connusee of the statute ; and so to make the extent void . it was not argued at this day , but the point only opened , see . eliz. dyer , . h. . see pasche . jacobi , the residue . petty against evans . in an ejectione firme brought by the lessee of a copy-holder , it is sufficient that the count be generall without any mention of the license , & if the defendant plead not guilty , then the plaintiff ought to shew the lycense in evidence : but if the defendant plead specially , then the plaintiff ought to plead the license certainly in his replication , and the time and place when it was made : and in this case the plaintiff replied , that the copy-holder by license first then had of the lord did demise , and did not shew what estate the lord had , nor the place nor time when it was made , and all the justices agreed that it is not good : for the license is traversable , for if a copy-holder without license of the lord make a lease for yeares . the lessee which enters by calour of that , is a disseisor and a disseisor cannot maintain an ejectione firme , and the defendant cannot plead that the plaintiff by license did not demise , for this is a pregnant negative , also it ought to appeare what estate the lord had , for he cannot give license to make a lease of longer time in the tenancy then he hath in the signiory : and for that if he be lessee for life of a mannor , and he licenses a copi-holder to make a lease for . yeares of a copy-hold , and then the lessee for life dies , the license is for that determined , though that the copy-holder be of inheritance , for the inheritance of the lord is bound by that . and for that the plaintiff replies , that the copy-holder by license of the lord first therefore had , made the lease , that is not good by coke and walmesley expresly , and though that the defendant confesse the replication , by implication , by pleading . yet this shall not ayd the plaintiff , for that it is insufficiently pleaded , which note . hillary . jacobi . in the common bench. in action upon the case upon an assumpsit , the plaintiff counts that when he such a day at the speciall instance and request of the defendant , lent to the defendant the same day ten pound ; and that the defendant the same day in consideration thereof assumed and promised to the plaintiff to pay the same summ of ten pound at an other day to come : and it was moved in arrest of judgement , that the consideration was too generall , and for that the action not maintainable , and all the justices but foster seemed the consideration was good , but foster it seems was in some doubt of that , but judgement was entred for the plaintiff according to the verdict : and coke cheife justice said , that such a like action was maintained against kercher his chaplain , as executor of his father , and it seems for good law. legates case . one legate was committed to newgate prison for arrianisme for denying of the trinity , by the high commissioners : and it was moved on the behalfe of legate to have a habeas corpus and it was granted , and it was said by coke cheife justice , that the statute of . h. . chapter . inhibits justices of peace to commit any man to any private prison . and it seemes if any do against this statute , that an action of false imprisonment lies : for every one ought to be committed to the common goal , to the intent that he may be dilivered at the next goale delivery , and also if any be committed to any of the counters in london , unlessthat it be for debt , that an action of false imprisonment lieth for that , for these are private prisons , for the sheriffes of london for debt only . note in debt for ten pound the defendant confesseth five pound , and for the other five pound pleades that he oweth nothing by the law , and at the day the plaintiff would have been nonsuited . and it was agreed by all , that if he be nonsuited , that he shall loose all , as well the debt confessed as the other . note the yeare of the reigne of the king was mistaken in the record of nisi prius , but the record which remaines in the court was very well , and it was amended : for insomuch that it was a sufficent and certaine issue , this was sufficent authority to the justices of nisi prius to proceed , but nothing being mistaken but the yeare of the reigne , this shall be amended , for it is only the misprision of the clark , see dyer . , . . eliz. . h. . note also if tenant in dower be disseised , and the disseisor makes a feoffment , the tenant in dower shall recover a●l their dammages against the feoffee , for she is not within the statute of glocester chapter . by which every one shall answer for their time . hillary . jacobi . in the common bench. reyner against poell ; see hillary . jacobi fol : in second deliverance for copy-hold in brampton , in the county of huntington ; the case was , copy-hold lands were surrendered to the use of a woman , and the heires of her body , and she took a husband , the husband and the wife have issue . sonnes , and after surrenders to themselves for their lives , the remainder to the eldest son and his wife in fee , the husband and the wife dye , the eldest son dies , the youngest son enters , and surrenders to the use of a stranger : and the sole question upon which they relied , if the wife was tenant in tayl , or if she had fee simple conditionall ; and it was argued by nicholls , that the wife was tenant in tayl , and to prove that , he cited . cases in littleton , where it is expresly mentioned , who may be tenant in tayl , see sect. . . and who may have a formedon , see in the discender , sect . . and he grounded that upon reason , for that , that it cannot be denied : but that fee simple might be of copy-hold according to the custome , and as well as fee simple , as well it may be an estate tayl , for every greater containes his lesse , and he said that this is grounded upon the reason of other cases , as if the king grant to one to hold plea in his court of all actions of debt , and other actions , and then one action of debt is given in case where it lieth not at the common law , yet the grantee may hold plea of that : but if a new action be framed , which was not in experience at the time of the grant , but is given after by statute , the grant shall not extend to that ; and to the objection , that copy-hold is no tenement within the statute , of gifts , &c. as to that he saith , that that shall be very well intended to be within the statute as it is used , and . h. . . a man makes a gift in tayl by deed , the donee hath an estate tayl in the deed as well as in the land , so morgan and maxells case , commentaries . and so of office , honour , dignity , and copy-hold also ; and dyer and . phil : and mary . . it is found by speciall verdict , that copy-hold lands have been devisable by copy in tayl , and so it is pleaded and eliz. dyer . b. and when a lesser estate is extracted out of a greater , that shall be directed and ordered , according to the course of the common law ; and for that the wife shall have plaint in nature of a cui in vita , and . h . b. title tenement by copy of court roll , it was said for law that tayl may be of a copy-hold , and that formedon may well ly of that in descender , by protestation to sue in nature of a formedon in descender at the common law , and good by all the justices ; for though that formedon in descender was not given but by statute : yet now this writ lieth at the common law , and shall be intended that this hath been a custome , time out of mind , &c. and the demandant shall recover by advise of all the justices , and the like matter in essex m. . h. . and fitz. affirms , that in the chamber of the dutchy of lancaster afterwards ; and also he saith , that when custome hath created such inheritances , and that the land shall be descendable , then the law shall direct the discent , according to the maximes and rules of the common law , as incident to every estate discendable , and for that shall be possessio fratris , of a copy-hold estate , . coke . a. brownes case b. and there . a. gravener and tedd , the custome of the mannor of allesley in the county of warwick was ; that copy-hold lands might be granted to any one in fee simple : and it was adjudged that a grant to one and the heires of his body , is within the custome , for be that estate tayl , or fee simple conditionall , that is within the custome : so he may grant for life or for yeares by the same custome , for estate in fee simple includes all , and it is a maxime in law , to him that may do the greater , it cannot be but the lesse is lawfull ; and over he said , that in all cases where a man was put to his reall action at the common law , in all these cases a copy-holder may have plaint with protestation to prosecute in ●…re of the same action ; and to the objection , that there cannot be an estate tayl of copy-hold land , for that , that the tenant in tayl shall hold of him in revertion , and shall not be tenant to the lord , to that he said that this estate may be created as well by ( cepit extra manus domini , ) as by surrender , and then there is not any reversion or remainder , but it is as if rent be newly granted in tayl ; but he said there may be a reversion upon an estate tayl , as well as upon an estate for life , and he did not insist upon the custome , but upon this ground , that if the custome warrant the greater estate , which is the fee simple , the lesse shall be included in that . and he did not argue , but intended that it would be admitted , that discent of copy-hold land shall not take away entry nor surrender of that , nor shall make discontinuance , so prayed judgement and ●…rne . harris the youngest serjeant argued for the plaintiff , that it shall be a fee simple conditionall , and not an estate tayl , and he said that the sole question was if the statute of westminster . conevrted and changed fee simple conditionall of copy-hold into an estate tayl , for if it be not an estate tayl within this statute , it shall not be an estate tayl at all , for littleton saith , before the making of the said statute , these estates were fee simple conditionall , and for that cannot be by prescription ; also he said that copy-hold estate was so base an estate , that at the common law a copy holder had no remedy but only in the court of the lord : but as to littleton who sayth , that he may have a formedon in discender , to that he saith , that the heire which hath fee simple conditionall may have it by the common law , for this was at the common law before the making of that statute of westminster . as it appears by . ed. . formedon . . ed. . formedon . and by bendlowes in the lord barkleys case , in the commentaries . b. by benlose where it is said by him , that a formedon in discender was not at the common law , but in a speciall case ; where an assise of mortdancester would not serve the issue ; that is , if a man had issue a sonn , and his wife died , and after that he takes another wife , and land was given to him and to his second wife , and to the heires of their two bodyes begoten , and they have another sonn , and the wife dies , and after the father dies , and a stranger abates , there he sayth that before the statute , the youngest soon could not have an assise of mortdancester , and for that he shall have a formedon in discender , which was no other but a writ founded upon his case , see of ed. . formedon . and for that when littleton speakes of an estate tayl of copy-hold , that ought to be understood of fee taile , which may be fee simple conditionall , and so littleton may be reconciled , 〈◊〉 will well agree with himself ; also it seems that copy-hold is ou●●f the intent and meaning of the statute of westminster . for at the common law in ancient times , this was base estate , and not more in reputation then villinage , and also if such an estate then might be created of that which shall be perpetuall and no means to barr it , for surrender of that doth not make any discontinuance , and recovery was not known , till . ed. . and he saith , that in ancient time the name of copy-holder was not well known , for in ancient time they were called tenants in villinage ; and tenants by copy is but a new terme , see fitzherberts natura brevium . b. and the old tenures fol. . and bracton lib. . charter . in gifts made to servants calleth them villaines and sokemen , and in the old tenures it is said that the lords may expell them , and upon this he inferred , that if it be so base● tenure , though it be of lands and tenements , yet they shall not be intended to be within the intent of the makers of the statute of westminster . and also by a second reason , that is , that it was not the intent of the makers of the statute that this should extend to any lands but only to those which are free lands , for the parties are called donees and feoffees , and the will of the giver should be observed according to the forme in the charter of his gift manifestly expressed , by which it appears that it ought to be of such land of which a gift may be made , and also the statute provides that if the donee levy a fine ( that in right it should be nothing ) by which also it appears as to him it seemed , that it ought to be of such land , of which a fine may be levied . and also for a third reason , which was the great inconvenience , which would ensue upon it , for then the donees have no meanes to dispose of that , nor give that for the advancement of his wife nor her issues , and also the lord shall loose his signiory , for the donee shall hold of him in reversion and not of the lord , and it is resolved in heydens case , coke . a. that when an act of parliament , alters the service , tenure , interest of the land , or other thing in prejudice of the lord or of the custome of the mannor , or in prejudice of the tenant , there the generall words of such act shall not extend to copy-holders , see the opinion of manwaod cheife baron there , and he agreed , that admitting it shall be an estate taile , that then surrender shall not make discontinuance , and so he concluded and prayed judgment for the plaintiffe his clyent , see hill and vpchars case , which was adjudged in the kings bench , and the principall case was adjourned untill the first saturday of the next tearme , see hillari . jacobi in this book in replevin the plaintiff was non-suited between the same parties . see also pasche . jacobi . hillary . . jacobi in the common bench. wallop against the bishop of exeter and murray clark. in a quare impedit , the case was , doctor playford being chaplaine of the king , accepted a benefice of presentation of a common person , and after he accepted another of presentation of the king , without any dispension , both being above the value of eight pound per annum , if the first benefice was void by the statute of , h. . chapter . or not , was the question , for if that were void by the acceptance of the second benefice without dispensation , then this remaines a long time voide , so that the king was intituled to present by laps , and presented the plaintiff , the statute of h. . provides , that he which is chaplain to an earle , bishop , &c. may purchase license or dispensation to receive , have , and keep , two benefices with cure , provided that it shall be lawfull to the kings chaplaines to whom it shall please the king to give any benefices or promotions spirituall , to what number soever it be , to accept and receive the same without incurring the danger , penalty , and forfeiture , in this statute comprised , upon which the question was , if by this last proviso , chaplaine of the king having a benefice with cure above the value of eight pound per annum , of the presentation of a common person , might accept another benefice with cure over the value of eight pound also of the presentation of the king without dispensation , the words of the statute , by which the first church is made void are , and be it enacted that if any parson or parsons having one benefice withcure of soules , being of the yearly value of eight pound or above , accept and take any other with cure of soules , and be instituted and inducted in possession of the same , that then and immediately after such possession had thereof , the first benefice shall be adjudged in the law to be void . see hollands case . cooke . a. this case was not argued but the point only opened by dodridge serjeant of the king for the plaintiff , and day given for the argument of that till the next tearm . hillary . jacobi . in the common bench. tresham against lambe . lewes tresham was plaintiff in waste against john lambe , the plaintiff supposed the defendant had made waste in sowing and plowing ancient meadow , the which he had let to the defendant for years in rushton in the county of northampton , and sowed it with woade , and prayed estrepement upon the statute of glocester , chapter . and upon examination it appears , that the lands let was pasture and meadow , the pasture was ridge and furrow , but had been mowed and used for meadow for diverse years , and that the defendant plowed and sowed that with woade , but this which had been ancient meadow , he used that as meadow , and did not convert that to arable land , but the judges would not grant any estrepement to the pasture , for that it was ridge and furrow , and it was no ancient meadow , although that had been mowed time out of minde , &c. but to the ancient meadow they granted a writ of esterpement , but foster seemed to be of another opinion , for that , that it was to sow woade , for that that it is against common right , and the fume and smell of that is offensive and infectious , but if it had been to sow corne he agreed as above , and for the executing the writ of estrepement , they all agreed that the sheriff ought to take , if need be , the power of the county against those which made the waste ( hanging the action ) and may commit them if they will not obey him , for the words of the statute are , that you shall cause to keep , which shall be intended in safety . but if lessee for years trench or draine , that is no wast , as it was now of late times adjudged , where if the lessee takes any of the reasonable bootes that the law allowes , that it shall be no waste nor estrepement shall be granted , see fitzherberts natura brevium , . m. if a man devise land to his executors for years , this is assetts , but if he devise that his executors shall sell his lands , or devise his lands to his executors to be sold , this shall be no assets untill the lands are sold , and the money for which the land shall be sold , shall be assetts . a record of nisi prius , in an action of debt upon an obligation , with condition to pay such a sum of money at such a feast next after the date of the obligation , and the day of the date of the obligation was omitted in the record of the nisi prius , so that it doth not appear which shall be the next feast at which the mony ought to be paid after the date , and by all the justices , that was no perfect issue , and for that the justices of nisi prius have no power to proceed upon it , and for that it shall not be amended , otherwise if it had been a good issue , though that another thing had been mistaken , see dyer . eliz. . . and see before the same tearm here . the king pardoned a man attaint , for giving a false verdict , yet he shall not be at another time impannelled upon any jury , for though that the punishment were pardoned yet the guilt remaines . hillary . jacobi . in the common bench. james versus reade . the case was , the king was seised of a mannor , where there were diverse copy-holders for life , and was also seised of eight acres of land in another mannor , in which the copy-holders have used time out of minde , &c. to have common , and after the king grants the mannor to one , and the eight acres to another , and a copy-holder puts in his beasts into the eight acres of land , and in trespasse brought against him by the patentee of the eight acres , he prescribes that the lord of a mannor , and all those whose estate he hath in the mannor have used time out of minde , &c. for themselves and their copy-holders to have common in the said eight acres of land ; and further pleaded that he was copy-holder for his life by grant , after the said unity of possession in the king , and so demanded judgment if action , against which the said unity of possession was pleaded , upon which the defendant demurrs , and all the justices seemed that though that prescription was pleaded that the common was extinct , but it seems also to them that by speciall pleading he might have beene helped and save his common , for this was common appendant , see . coke , tirringhams case , . . hillary . jacobi . in the common bench. cartwright against gilbert . in debt upon an obligation with condition to be and perform an arbitrement to be made , the arbitrators award , that the defendant should make submission , and should acknowledge himself sorry for all transgressions and words , at or before the next court to be held in the mannor of p. and for the not performance of that award , the plaintiff brought this suit , and the defendant in barr of this , pleads that at the said next court , he went to the court to make his submission and to acknowledge himself greived according to the award , and was there ready to have performed it , but further he saith , that the plaintiff was not there to accept it , upon which the plaintiff demurred ; and it seemes to coke and foster that the defendant hath done as much as was to be done of his part ; and for that , that the plaintiff was not there ready to accept , the defendant was discharged , for this submission is personall , and to the intent to make them freinds , and for that both the parties ought to be present . but walmesley and warburton seemed , that it might have been very well made in the absence of the plaintiff , as well as a man may submit himself to an arbitrement of a man which is absent , for this is only to be made to the intent to shew himself sorrowfull for the trespasses and words , which he hath made and spoken , and it was not argued but adjourned till the next tearme , and the justices moved the parties to make an end of that , for that it was a trifling suit. hillary . jacobi in the common bench. sir edward ashfeild . sir edward ashfeild was bound in an obligation by the name of sir edmund , and subscribed that with the name of edward , and in debt brought upon that , he pleads ( it is not his deed ) and it seemes to all the justices that he might well plead that , for it appears to them that he is not named edmund , and the originall against him , was , command edward , otherwise edmund , and this was not good , for a man cannot have two christian names , and if judgment were given against him by the name of edmund , and the sheriff arrest him by capias , that false imprisonment lies against him ▪ but if he have a name given to him , when he was christened , and another when he was confirmed , he shall be called and known by the name given unto him at the time of his confirmation , and not by the first , see , . r. . grants . ed. . . . r. feoffments . see perkins fol. . b . a. grants , . eliz. dyer , . . hillary . jacobi in the common bench. styles against baxter . styles brought an action upon the case against baxter for calling him perjured man , the defendant justified that he was perjured in such a court , in such a deposition and so pleaded that certainly , and it was found for the defendant at the nisi prius , and judgment was given accordingly , and the defendant afterwards ▪ published the same words of the plaintiff , upon which he brought a new action for the new publication , in which the defendant pleaded in barr the first judgment , upon which the plaintiff demurred , and it was adjudged without any contradiction ; that it was a good barr. hillari . jacobi . in the common bench. andrewe against ledsam in the star chamber . andrewe exhibited his bill in the star chamber against ledsam , the matter , andrew being a rich usurer , delivered to ledsam being a scri●ener , one thousand pound to be imployed for him ▪ for interest , that is , for ten pound for the use of every hundred pound for every yeare , ledsam being a prodigall man , as it seemes , spent the money , and delivered to andrewe diverse severall obligations , every of them containing three severall persons , well known to be sufficient , being some of them knights , others gentlemen and esquires of great estates , and the other good citizens without exceptions , were bound to andrewe in two hundred pound for the payment of one hundred sixty pound to andrew at a day to come within six moneths then next comming , as andrew , had used before to lend his money , and delivered the obligations with seales unto them , and the names of the parties mentioned to be bound by that subscribed , and his own name also subscribed as witnessing the sealing and delivery of them , as a publique notary , a● the good and lawfull obligations of the parties which were mentioned in them , where indeed the parties mentioned in them , had not any notice of any of them . but ledsam had forged and counterfeited them , as he hath confessed upon his examination , upon interrogatories administred by the plaintiff in this court , and at the hearing of the cause and sentence of that , it was moved if ledsam sha●l loose both his eares or but one , for if it be but one forgery , then by the statute of . eliz. admitting that the bill is grounded upon this statute , he shall loose an eare and pay the double dammage● and cost to the party greeved : and also if andrew , being but the obligee , and not any of the parties , in whose names the obligations were forged , if he be such a party greived , which shall have double costs and dammages , and these doubts were resolved by coke cheife justice of the common bench , where they were moved , and flemming cheif justice of the kings bench , that ledsam should loose but one eare , for that shall be taken as one forgery , for that it was made at one time , and also that andrew was the party greived within the statute , but coke said that the bill was generall , that is against the lawes and statutes of the realme , and not precisely upon the statute of . eliz. for he said , that when a bill is founded upon an act of parliament , that this ought to containe all the branches which are mentioned in the act , the which wants in this bill , but insomuch , that it was adjudged in parliament what punishment such offenders shall have , they inflicted the same punishment which is appointed by the statute , and added to that , that he should be imprisoned till he found good suerties for his good behaviour , and also that hee shall be brought to every one of the kings courts at westminster with great papers in his hatt , containing his offence in capitall letters , but the lord chancellor expounded the double dammages in such manner ; that is , that they shall not be intended double interest , but only the principall debt . note , that if execution be directed to a sheriffe , to arrest any man , or to make execution within a liberty : and the sheriffe direct his warrant to a bayliffe of the liberty , for to make execution of the processe , which makes it , and after is a fugitive , and not able to answer for that , the lord of the franchise shall answer for that , and shall be liable to answer for his bayliffe , by all the justices . burdett against pix . in debt upon a single bill by burdett against john pix , as administrator of freewen , the case was this ; that is , freewen was bound in an obligation of thirty four pound to burdett the plaintiff , and was also bound to one william pix in . l. freewen dyed intestate , and the letters of administration of his goods were committed after his death , to the said john pix , the defendant and the said william pix also made the said john pix the defendant his executor and died , and the defendant in this action pleads , that the said freewen was indebted to the said william pix , and that he was his executor , and that he had goods of the said freewens , sufficient to satisfie the said debt , the which he retained for the satisfaction of that , and that over that , he hath not of his to satisfie him , upon which the plaintiff dem●…or that , that the defendant doth not plead , that he hath ●…is election to retaine the said goods , for the satisfaction of ●…own said debt before the action brought , and by all the justices , he ought to make his election before the bringing of the action , otherwise he shall be charged with the other debt . see woodward and darcyes case , commentaries . a. and . cook . coulters case . hillary . jacobi . in the common bench. bone against stretton . the case was this , a man seised of two acres of land , makes a lease for years of one acre to one , and another lease for yeares of the other acre to another , and then he enters and makes a feoffment , and severall liveryes upon the severall acres , and one of the lessees being present , doth not assent to the said livery , and the use of the said feoffment , was not the use of his last will , and then he declares his last will ; and by that recites the said feoffment , and then declares the use of that to be to the use of himself for life , the remainder over to a stranger , and after the tenant for years which did not assent to the livery , grants his estate to the feoffor , and the feoffor dies ; and nicholls serjeant moved first : that this enures as a grant of a reversion ; and that the grant of the perticuler tenant enures , first as an attornement , and then as a surrender of his estate , as if it had been an expresse surrender , and all the justices agreed , that this doth not enure to make attornement and surrender as expresse surrender will , for an expresse surrender admits the reversion , to be in the grantee to whom the surrender is made : but in this case before attornement the grantee hath nothing , and after attornement the particuler estate being granted , it shall be drownd in the reversion , harris serjeant , the words of the devise are , that his feoffees and all other persons which after his death shall be seised , shall be seised to the same uses before declared , and of one acre he hath not any feoffees ; for of that the feoffment was voyd , and yet it was agreed that the devise was good as lyngies case was in . h. , cited by anderson , in welden and elkintons case , commentaries b. and he argued , that though , that when a conveyance may enure in severall courses , yet it cannot enure for part in one course , and part in another course , and for that this devise enures as a devise of land for one acre , and declaration of the use of the feoffment fo●…her acre ; for it is agreed in sir rowland haywards case , . 〈…〉 . a. . coke . a. sir edward cleeres case , and also in this 〈◊〉 the devisor hath , made expresse declaration , that the land shall passe by the feoffment , and that the will shall be but a declaration of the use of the feoffment , and for that nothing shall passe by the devise , with which the justices seemed to accord , and cited a case to be adjudged in the kings bench , . eliz. where the father gives and grants lands to his son & his heires with warranty , and makes a letter of attorney within the deed to make livery , and adjudged , that that shall not enure as a covenant to raise a use , for that , that it appeares by the letter of attorney , that his intent was , that that should enure as a feoffment , and not as any other manner of conveyance , see eliz. dyer . . master cromwells case , and so it was adjudged accordingly . hillary . jacobi . in the common bench : gargrave against gargrave . katherine gargrave , was plaintiff in a replevin against sir richard gargrave knight , and the case was this ; the father of sir richard gargrave was seised of divers tenements called lyngell hall in lyngell hall , and of a moore called kingstey moore in another town , and the tenants of the said father of sir richard , have used to have common in the said moore , and the said father so being of that seised , demised the said tenements to the said katherine gargrave for her joynture , by these words , by the name of hingell hall , and certaine land , meadow , and pasture in certainty ; and with all ●ands , tenements , and hereditaments to that belonging ; or with that occupied and enjoyed , now or late in the tenure of one nevill ; and nevill was tenant of the said premises , and had common in kingsley moore , upon which the question was ; if the said katherine by this demise shal have common in the said moore or not . and hutton serjeant argued , that the said katherine shall have common in the said moore , for he said , that the said demise shall be expounded , according to the intent of the partie , 〈◊〉 as it is agreed in hill and granges case , commentaries . b. where a man makes a lease for yeares of a house , and all the lands to that belonging , and though it is there agreed , that land cannot be appurtenant to a house , yet this word appurtenant , shall be taken in the effect and sense of usually occupied with the messuage or lying to the house , by which it appeares that the words are transferred from the proper signification to another , to satisfie the intent of the parties , for it is the office of the judges , to take and expound the words which the common people use , to expresse their intent according to their intent , and for that shall be taken not according to the very definition , insomuch that it doth not stand with the matter , but in such manner as the party used them : and for that this grant shall amount to a new grant of common in the said moor , for as it seems common or feeding for cattell may be granted , and passe by the name of tenements & hereditaments , or at least shall be included and comprised within the words tenements and hereditaments , and so shall be construed as a thing occupied and injoyed with the said messuages , see hen. finches case . coke . and it was an expresse endorsment upon the demise , that the said katherine should not have common in the said moore , but it was agreed by all , that this was vaine and idle , and nothing worth ; but he urged that this shall have a favorable construction , for that it was for joynture , which shall have as favorable construction as dower . and so he prayed judgement for the plaintiff ; and of the other part nicholls serjeant argued , that this shall not amount to a new grant , for he said that they are not apt words to receive such construction , for he said that this is no tenement or hereditament , no common , but only a feeding for the cattell of the lessee , in the wast of the lessor , see . edw. . fitzherbert , admeasurement , and it cannot passe as a thing used with the said house , for that was not in esse at the time of the grant , and there is not any apt word to make a new grant , ●nd he cited 〈◊〉 iudgement in action of wast , between arden and darcy , where ardon was seised of the mannor of curball and also of parkhall , and makes a conveyance of the mannor of curball to divers uses , and at this time parcell of the mannor of curball , was occupied with parkhall as parcell of that , and after made another conveyance , of all his lands in england , except the mannor of curball : and adjudged that the parke ▪ which is used with parkhall shall not be within the exception ▪ coke saith , that it was only feeding , and not hereditament , for the inheritance of both was in the lessor ; but if it be granted of feeding it shall be intended the same like feeding , that the tenant hath ; as if the king grant such liberties as the city of london hath , and that shall be good , and so it was adjourned . hillary . jacobi , . in the common bench. cannige against doctor newman . in an information upon the statute of h. . chapter . of non-residency , it was found by speciall verdict , that doctor newman was incumbent , invested in the rectory of staplehurst in the county of kent , and that hee was also seised of a house in staplehurst aforesaid ; scituate within twenty yards of the said rectory , and that the mansion house of the said rectory was in good repaire , and that doctor newman held that in his hands and occupation with his one proper goods , and did not let it to any other , and that he inhabited in the said messuage and not in the parsonage , the statute of h. chapter . provides , that every parson promoted to any parsonage , shall be personally resident , and abiding in , at , and upon his said benefice , and in case any such spirituall parson keep not residence at his benefice , as aforesaid , but absent himself willfully by the space of a month together or two moneths , to be accounted at severall times , in any one year , and makes his residence and abiding in any other places by such time , that then he shall forfeit for every such default ten pounds , the one halfe to the king , and the other halfe to the informer ; and if the said doctor newman was not resident , and incurred the penalty of this statute was the question , and it was argued by haughton , that he had incurred the penalty of the statute , and was non-resident within the intent , and he argued that to some intent all the parish may be said the benefice of the parson , for that , that he hath benefit out of it , and he is called parlon of such a town or parish , but this is not the benefice that the statute intends , upon which he ought to be resident , as in the . assise . if a corrody be granted out of an abby , it shall not be intended out of the seat of the abby , out of the booke of . assise . where it is said , that if a rent be granted out of a priory , that all the possessions of the priory are charged , as to that he saith , it was but ( it was said ) and not judgment , and also the said bookes may be well reconciled , for it is more proper that the seate of the abby shall be charged with the corrody , and the possessions of the priory with the rent , and also he said , there were seven causes of making of the said statute , whereof but two are to our purpose , the first is hospitality , second releife of the poore , and these are to be done in the parsonage house , for this is the free almes of the church , and so it was adjudged , of eliz. in the kings bench , broome and hudson , and in this court also , and in this court also in the of eliz. in the kings bench betwixt butler and goodall coke b. that he ought to be resident upon the parsonage house and not other where , and he allowed and agreed , that imprisonment without deceit , and sicknesse are good excuses , but so it shall not be a prejudice , for the parsonage house is in good repaire : and so concluded that judgment shall be given for the plaintiff : and for the defendant , barker serjeant argued , that it appears by the speciall verdict , that doctor newman held the parsonage house in his own hands and occupation , and did not let it , upon which he gathered that his servants were resident upon it , and to the exposition of the statute , he saith , that it appears by heydons case , coke . a. that the better means to expound statutes , is to consider the mischeife which was at the common law before the making of that , and when it is intended to be reformed by that , and this appears by the preamble of that statute , also he saith , that before the councill of lateran a man might pay his tithes to whom he would , but by the same councill all the parish is made the benefice of the parson , for he receives benefit by that , and yet he said , that before the said statute , every spirituall man was bound and compellable by the ecclesiasticall law to be resident , yet if he were in the kings service or an officer in the chancery , he should be excused , as it appears in the register , fol. . b. though that he were dean , the which office meerly requires his personall residence , as it is there said , and also he saith , that the case between butler and goodall , was that the parson demised all the parsonage house but only one chamber , and was not resident in that , but in a copy-hold within the town , and so prayed judgment for the defendant , this case was compounded by the lord coke , but he intended this was no residence within the statute , for this was not his benefice , but the tenants part of that , as he said hath been adjudged in the exchequer . hillary . jacobi in banco communi . crogat against morris the case was , a commoner brought an action upon the case , against a stranger , for that his beasts came in and fed upon the common , and by coke , walmesley , and warburton it lieth very well , foster to the contrary , for then every commoner may have the same action , and then it would be infinite . hillary . jacobi . in bonco communi . 〈◊〉 against the lady saint john , postea , . see for the beginning of this in michalemas tearme last , and that case was argued again by hutton . serjeant for the defendant , that the parcelling of reversion destroyed the covenant , it was agreed in winters case in case of condition , and he agreed , that that covenant is within the statute of . h. . chapter . . as well as condition , and for that grantee of part of the reversion shall not have an action of covenant , for then if there be twenty grantees , every one of them shall have severall action , and this was not the intent of the statute , and as to the common law before the statute , a thing which gives action cannot be divided , and he urged , that when the reversion of fee simple was first granted , if he may by that have an action , then when the reversion of the tearm was granted , he may have another action , and so a man may have two severall actions for one thing , see , . assise . three coparceners were , and rent of five pound was allotted to two of them equally to be divided , that is , fifty shillings to one and fifty shillings to another , and they two joyned in an action , and it is doubted , if the writ shall abate or not , and ed. . . b. the abbot of westminster● case , the abbot made a lease of a mannor , except the wood , and after by another deed he let the wood , and the lessee made wast in the mannor and the wood , and he brought one action of wast and it is not good ; and he agreed that one formedon yeth upon two discontinuances , for there was but one discontinuance , and that is the cause of the action , but a man cannot have a writ of warrantia charte upon two deeds , no more in the● principall case , for the plaintiff hath his title by two deeds ▪ and so concluded , and prayed judgment for the defendant . harris serjeant argued of the other part for the plaintiff , that an action of covenant lieth very well , for the originall lease was but one intire lease , and the covenant was also intire , and for that the grantee of the reversion shall have advantage of that , and he agreed that in reall actions , which alwaies are grounded upon the title , and for that if it be grounded upon two titles , he ought to have . actions according to his title , but in personall actions where the action is grounded upon the deed , & another matter which comes ( ex post facto ) which is the ( wrong ) which is the cause of the action , & for which damages i shall be recovered as it is said in blakes case ▪ . , coke , and this is the reason that a man may have an action upon the statute of offenders in parkes for hunting in two parkes , h. ● . and ed. . 〈◊〉 one action of trespasse for trespasses ▪ made at severall times , and so one action of debt for diverse contracts , h. . . by martin , h. . trespas , h. . but he argued that in reall or mixt actions , as ravishment of ward , for severall wards or one ; quare impedit for severall churches , this shall not be good , fitz. ward . . h. . . and also he said that the statute of h. . chapter . by expresse words gives the same remedy to grantees of reversions , that the grantors themselves had , and the grantor without question , may have an action if he have not granted the reversion , and so he concluded , and prayed judgment for the plaintiff , and it was adjourned . hillary . jacobi . in the common bench. sturgis against dean , see t. . a man was bound to pay to the plaintiff ten pound within ten dayes after his return from jerusalem , the plaintiff proving that he had been there , and the plaintiff after ten dayes brought his action upon the obligation , without making of any proofe that he had been there , and if that were good , or that he ought to make proofe of that before he brings his action , this was the question , and also he ought to make proofe , then what manner of proofe , and it was moved by haughton , that when a thing is true , and is not referred to any certain and particular manner of proof , as before what shall be done , or how the proofe shall be made , the party may bring his action , and the other party may take his issue , upon the doing of the thing which ought to be proved & the triall of that shall be proofe sufficient , and in his count he need not to aver that he had been there , see ed. . . b. c. , ed. . . r. . barr . and here also the proofe , if any should , it ought to be made within ten dayes , the which cannot be made by jury in so short a time , as it is said by choke in ed. . . b. though that he agreed , that when a man may speake of proofe generally , that shall be intended proofe by jury , for that , that this is the most high proofe , as it is said in gregories case , coke . a. and ed. . . b. but of the other part it was said by sherley serjeant , that true it is that proofe ought to be made for the defendant , as the case is in ed. . . that then such proofe should be sufficient , for the plaintiff may bring his action before that the defendant may by possibility bring his action , but where the plaintiff ought to make the proofe , there he ought to prove , that before that he bring his action , and it shall be accounted his folly , that he would bring his action before he had proved that , but all the justices agreed , that the plaintiff need not to make any other proofe , but only by the bringing of his action , but the lord coke took exception to the pleading , for that , that the plaintiff hath not averred in his replication that he was at hierusalem , but generally that such a day he returned from thence ; and he said , that a man might returne from a place , when he was not at the same place , as if he had been neere the place , or in the skirts of hierusalem , and upon that it was adjourned , see the beginning of that . trinity . jacobi . a. mich. . . and . hillary . jacobi . in the common bench. wickenden against thomas . the case was this , . executors were joyntly made in a will , one of them releases a debt due to the testator , and after before the ordinary refuses to administer , and it was agreed by all the justices ; that the release was administration , and for that he hath made his election , and then the refusall comes too late , and so is void . bedell against bedell . in wast the case was this , a man seised of lands makes his will , and of that makes two executors , and devises his lands to his executors for one and twenty yeares after his death , upon trust , that they should permit a. to injoy that during , and to take all the profits all the terme , if he so long lived , and if he ●ied within the terme , then that b. should take the profits , and so with others remained in the same manner , with the remainder over to a stranger in tayl , one of the executors refuseth to prove the will , or administer , and also to accept the terme , the other executor proves the will , & administers the goods , and enters into the land according to the lease , and that assignes to a. according to the trust reposed in him , and after that he in reversion in tayl brings an action of wast against the executors which proved the will , and he proved all the matter aforesaid , and that before the assignement , and that before that no wast was made , and it seemes to all the judges , that this was a good plea , for the waveing of one executor is good , and though that he might after administer , as the book of . ed. . is for that , the interest of his companion preserves his authority , where are or more . but if there be but one executor and he refuseth , and the ordinary grants administration to another , he cannot then administer againe ; and coke cheife justice cited that one rowles , made the lord chancellor which then was the cheife justice of england , and the master of the rolls , his executors and died , and they writ their letters to the ordinary , witnessing that they were imployed in great businesses , and could not intend the performance of the said will , and that for that , they desire to be free of that , and that the ordinary would committ the administration , of the goods of the said testator to the next of blood , and this sufficient refusall . and upon that the ordinary committed the administration accordingly : and to the pleading , that no wast was made before the assignement , they all agreed that this was good , and so it was adjourned for this time . a man sould his land upon a condition , and after took a wife and died , the heire entred for the condition broken , yet the wife shall not be endowed , so if the condition had been broken before the death of the husband , if he had not entred , for he had but title of entery . hillary . jacobi . in the common bench. as yet doctor husseys case : moore against doctor hussey and his wife and many others , in ravishement of ward . the case was , the ward of moore was placed at the university of oxford to be instructed in the liberall sciences , and was married by the wife of doctor hussey to the daughter of the said wife , which she had by a former husband . and for that moore brought this writ against doctor hussey and his wife , and the minister which married them , and all others which were present at the said marriage , or actors in that . and upon evidence it appeared , that doctor hussey was not present nor actor in it ; and for that the jury found him not guilty , but they found all the other defendants guilty of the said ravishment , for upon the evidence it appeares , that the wife of doctor hussey procured and provided the minister which married them , and in the last michaelmas terme this was tried here at the barr , and the jury assessed dammages to ten pound , and the value of the ward to eighty pound , for so much moore proved that he could have sold him for , and also the jury found , that the ward doth appeare married being of the age of . yeares at the time of his marriage , and exceptions were taken to that , for that it was not found of what age the ward was at the time of the verdict , and it was urged by dodridge that by the statute of westminster . chapt . . the precise age ought to be found at the time of the verdict . secondly it was found that the ward did appeare married , and doth not say without license of the guardian , and the guardian may give his consent , where the ward marries himselfe , and then there is no cause of action . the third and other exception was taken in the behalfe of the wife of doctor hussey , for that shee being a married wife was found guilty of ravishment of ward , against the statute of westminster the . chap. . and it was urged that it was not the intent of the statute that provides , that he which did ravish ; not having right in the marriage , though he should restore the boy naked and not married , or should satisfie for the marriage , he shall be punished for the transgression , by imprisonment for two yeares , and if he shall not restore him , or shall marry the heire , after the marrying yeares , and cannot satisfie for the marriage , he shall abjure the realme , or shall have perpetuall imprisonment . and it was objected that a married woman , was not intended to be within this statute , for it is apparent , that a married woman hath not wherewith to make satisfaction , and it shall not be intended that she shall have perpetuall imprisonment , or make abjuration , for this was to make separation betweene the husband and his wife , and so it was adjourned . and the judges moved the parties to compound amongst themselves , see michaelmas . jacobi . trinity jacobi . pasch . . jacobi . in the common bench. kenricke against pargiter and phillipps . robert pargiter gentleman , and john phillipps were summoned to answer to robert kenricke gentleman of a plea , why they tooke the beasts of the said robert kenricke , and those unjustly detained against suerties and pledges , &c. and thereupon the said robert kenricke by thomas pilkington his attorney doth complaine , that the said robert and john the fourth day of august the yeare of the reigne of our now king seventh , at kings sutton in a certaine place called great greenes took beasts , that is to say , one gelding , one mare , and one colt of the said robert kenrickes , and do unjustly detaine them against suerties and pledges , untill , &c. by which meanes he saith he is the worse , and hath losse to the value of twenty pound , and therefore bringeth this suit , &c. and the aforesaid robert pargiter and john phillipps , by john barton their attorney , do come and defend the force and injury when , &c. and the said robert pargiter in his owne right doth well avow , and the aforesaid john phillipps as bailiff of the said robert pargiter , doth well acknowledge the taking of the said beasts in the aforefaid place in which , &c. and justly , &c. because he saith that the said place , in which it is supposed the taking of the said beasts to be made , did containe and at the aforesaid time in which it is supposed the taking of the aforesaid beasts to be made , did containe in it foure acres of meadow in kings sutton aforesaid , which the said robert pargiter long before the aforesaid time in which , &c. and also at the same time in which , &c. was and as yet appeareth seised of one messuage and one virge of land with the appurtenances in kings sutton , in his demesne as of fee , and that the aforesaid robert kenrick the aforesaid time when , &c. and long before was seised of a messuage and foure virges of land with the appurtenances in kings sutton aforesaid , whereof the aforesaid place in which , &c. is , and at the aforesaid time when , &c. and also at the time , to the contrary doth not appeare in the memory of man , was parcell in his demesne as of fee. and the said robert pargiter and john phillipps further say , that the said robert pargiter and all those whose estate the said robert pargiter now hath , and at the aforesaid time when , &c. had in the aforesaid messuage and one virge of land with the appurtenances of the said robert pargiter , from time the contrary whereof doth not appeare in the memory of man , had and have used to have , and were accustomed to have common of pasture in the aforesaid place , &c. for six horses , geldings or mares , two colts , six young beasts called steeres , or young beasts called heifers , and two mares called breeders , in and upon the said messuage , and one virge of land with the appurtenances , lying and rising in manner and forme following , that is to say , every year , in and from the first day of august called lammas day , untill the feast of the purification of the blessed mary the virgin , then next following , as to the said messuage and one virge of land with the appurtenances , belonging , and the said robert pargiter and john phillipps further say , that the aforesaid robert kenricke of the aforesaid messuage and foure virges of land with the appurtenances whereof , &c. in the forme aforesaid , appearing seised , the said robert and all those whose estate the said robert kenricke now hath , and at the aforesaid time in which , &c. had in the aforesaid messuage and foure virges of land with the appurtenances whereof , &c. time out of mind , had and were used and accustomed to have the aforesaid place in which , &c. to their proper use in severalty every year , in and from the feast of the purification of the blessed virgin mary , untill the first day of august called lammas day then next comming , that by reason , and in consideration therof , he the aforesaid robert kenrick , and all those whose estate the said robert kenrick now hath , and at the time in which , &c. had in the aforesaid messuage and foure virges of land with the appurtnances whereof , &c. time out of minde , have had and were accustomed to have every yeare from the aforesaid first day of august , called lammas day , and from thence untill the aforesaid purification , then next following , common of pasture in the aforesaid place in which , &c. only for three mares or geldings and no more , and because the beasts aforesaid in the narration aforesaid , specified over and above the aforesaid other three mares or geldings , the aforesayd time in which , &c. were in the aforesayd place in which , &c the grasse then growing , there eating , and the common of pasture of the sayd robert pargiter , overcharging , and doing damage to the sayd robert there , the sayd robert pargiter in his owne right doth wel avow , and the aforesayd john phillips as bayliff of the aforesayd pargiter doe well acknowledge the taking of the beasts aforesayd in the aforesayd place in which , &c. and justly , &c. they then doing damage there , &c. and the aforesayd robert kenrick saith , that neither the sayd robert pargiter for the reason before alleadged , the taking of the aforesayd beasts in the aforesayd place in which , &c. can justly avow , nor the aforesayd john phillips as bayliff of the aforesayd pargiter , for the same reason the taking of the beasts aforesayd , in the aforesayd place in which , &c. justly can acknowledge , because by protestation that he the sayd robert kenrick , and all those whose estate the sayd robert kenrick now hath , and at the aforesayd time of the taking , &c. had in the sayd messuage and foure virges of land , with the appurtenances , whereof , &c. time out of minde , had not , nor used to have , or were accustomed , every yeare at the first day of august , called lammas day , and from thence to the next feast of the parification then next following , common of pasture in the aforesayd place in which , &c. onely for three horses , mares , or geldings , and not more , in manner and forme as the aforesayd robert pargiter and john phillips above have alleadged ; for plea the sayd robert kenrick sayth , that he long before the time of the taking of the beasts aforesayd , and also at the same time of the taking , &c. was seised of the mannor of kings sutton with the appurtenances in kings sutton and astrop in the county aforesayd , whereof the aforesayd messuage and four virges of land with the appurtenances , whereof , &c. are and at the aforesayd time of the taking , &c. and also time out of mind , &c. were parcell , in his demesne , as of fee ; and the aforesayd house and foure virges of land , with the appurtenances thereof , &c. and of the taking , and likewise time out of mind , were parcell of the demesne lands of the mannor of kings sutton aforesayd : and the sayd robert kenrick so of the mannor aforesayd , with the appurtenances in manner aforesayd appearing seised , the sayd robert , before the sayd time in which , &c. put his beasts aforesayd , which then were the proper beasts of the sayd robert kenrick , upon the aforesayd house and four virges of land with the appurtenances , lying and rising in the aforesayd place in which , &c. to eate the grafs there growing in the sayd place , in which , &c. called great greens , parcell , &c. the grass in the same then growing , feeding , and the aforesayd beasts were in the place aforesayd , untill the aforesayd robert pargiter and john phillips , the aforesayd fourth day of august , the seventh yeare aforesayd , at kings sutton aforesayd , in the county aforesayd , at great greene , parcell , &c. took the sayd beasts of the sayd robert kenrick , and those unjustly detained , against sureties and pledges , untill , &c. as he above against those complaines , and this he is ready to verifie ; whereof , and from which the aforesayd robert pargiter and john phillips , the taking of the aforesayd beasts in the aforesayd place , &c. further acknowledge , the sayd robert kenrick demands judgment and his damages ( by reason of the taking and unjust detaining of those beasts ) to be adjudged unto him , &c. and the aforesaid robert pargiter and john phillips say , that the aforesaid plea of the said robert kenrick above in the bar avowed pleaded , and matter therein contained , is very insufficient in law , justly to avoid the said robert pargiter and the said john from just acknowledging the taking of the beasts aforesaid , to have and shut up , and that he to the said plea in manner and forme aforesaid pleaded , hath no need , not by the law of the land shall be held to answer , and this they are ready to averr , whereof for default of a sufficient plea of the aforesaid robert kenrick in this part , the said robert and john , as before , demand judgement , and returne of the beasts aforesaid , together with their damages , &c. to them to be adjudged , &c. and the aforesaid robert kenrick in respect he hath sufficient matter in law , justly to avoid the said robert pargiter , and the aforesaid john from justly acknowledging the taking of the said beasts to be shut out as above alledged , which he is reaoy to verify , which truly matter of the aforesaid robert pargiter and john do not answer according to their verifying , they altogether refuse to admit as before , and demand judgment , and their damages occasioned by the taking and unjust detaining of the said beasts , to be adjudged to them , &c. and because , &c. upon the pleadings the case was thus , a freeholder prescribs to have common in parcell of the demesnes of the mannor for six horses and other cattel in certain land from lammas to candlemas , & that the lord of the mannor hath used to have the said parcell of land in severall to his owne use , from candlemas to lammas , and in consideration of that , the said lord hath used to have common in the said parcell of land for horses only and not more , and the lord unjustly puts in other beasts then the said three horses in the said parcel of land , and surcharged the common , and the free-holder distrayned them doing damage , and the lord brings a replevin , and it was argued that prescription was not good , for that that free-holder claimes that as common without number , in his severall soyle , the grantee cannot exclude the owner of the soile , h. . brooke , so of him which hath common fishing in the severall of another , he cannot exclude him which hath the severall , h. . . and it is not like to the case of the time of edward the first , prescription the . where is prescription that the owner of the soile shall be excluded from his common for part of the yeare , for there the other claimes all the vesture of the land , and so may well exclude the lord , but not when he claimes it but as common , but it was agreed that by lawes by the commoners consent they may order that their great cattell shall be put in in such feild only , untill such a feast , and after that for sheep and swine , and this is good , as it appears by ed. . . and coke cheife justice said , that such prescription to have common and to exclude the owner of the soyle , is not good , and he saith that so it hath been adjudged between whyte of shirland , eliz. and in cletherwoods case of the middle temple , but he said that prescription to have all the vesture of the land , is good for such a time , and at the first day of the argument of this case , foster justice seemed that the prescription was good , and might have reasonable beginning , that is by grant , as if they have common together , and they agree that one shall have all for one part of the yeare , and the other for another part of the year , and that shall be good , to which coke answered , that that cannot be by prescription to have that as common , and at another day coke , cited shirland and whites case to be adjudged , of eliz. in the kings bench , to be prescription to have common in the waste of the lord , and to exclude the lord to have common in the place , and adjudged to be void prescription , and also he cited a case between chimery and fist , where prescription was to have common in the soile of the lord , and that the lord shall have feeding but for so many cattell , and adjudged that the prescription was not good to exclude the lord , but a man may prescribe to have the first crop , or the first vesture of anothers land , and it is good , and with that agrees the resolution in kiddermisters case in the star-chamber ; warburton justice said , that this prescription is not for the excluding of the lord , but for their good ordering of their lands , according to the book of ed. . before cited , that the great cattell should have the first feeding , and after that the sheep : coke said , that if it had appeared by the pleading , that all the demesnes of the lord ought to be common , and in consideration , that the lord had inclosed part , and injoyed that in severall , the free-holders and tenants of the mannor which have common over all the residue , and exclude the lord , and this shall be good by prescription , and it is adjourned , see ed. . fitzherbert prescription . and afterwards in trinity tearme . . jacobi , this case was moved againe , and all the justices agreed as this pleading is , judgment shall be given for the plaintiff , and they moved the parties to replead . pasch . . jacobi , in the common bench. portington against rogers . trin. . jacobi , rot. . mary portington brought a trespasse against robert rogers and others defendants , for the breaking of her house and close , upon not guilty pleaded and speciall verdict found , the case was this , a man had issue three daughters , and made his will in writing , and by that devised certain land to the youngest daughter in taile , the remainder to the eldest daughter in taile , the remainder to the middlemost daughter in taile , with proviso , that if my sayd daughters or any of them , or any other person or persons before enamed , to whom any estate of inheritance in possession or remainder , of , in , or to the said lands , limited or appointed by this my last will and testament , or to the heires before mentioned of them or any of them , shall joyntly or severally by themselves , or together with any other , willingly , apparently , and advisedly , conclude and agree , to or for the doing or execution of any act or devise whereby or wherewith the said premises so to them intailed as aforesaid , or any part or parcell thereof , or any estate or remainder thereof , shall or may by any way or means be discontinued , aliened or put away from such person or persons and their heires , or any of them , contrary to mine intent and meaning in this my will , otherwise then for a joynture , or shall willingly or advisedly commit or do any act or thing , whereby the premises or any part thereof , shall not or may not discend , remaine , or come to such persons , and in such sort and order , as i have before limited and appointed by this my last will and testament , then i will limit , declare , and appoint , that then my said daughter or daughters , or other the said person or persons before named , and every of them , so concluding and agreeing , to or for the doing or execution of any such act or devise as is aforesaid , shall immediately from and after such concluding and agreeing loose and forfeit , and be utterly barred and excluded of and from all and every such estate , remainder , and benefit , as shee or they , or any of them should , might , or ought justly , to have , claime , challenge , and demand , of , in , or to so much thereof , as such conclusion or agreement shall extend unto or concern , in such manner and forme , as if she or they , or any of them , had not been named nor mentioned in this my last will and testament , and that the estate of such person , &c. shall cease and determine , &c. and after that the youngest daughter tooke a husband , and then shee and her husband concluded and agreed to suffer a recovery , and so to barr the remainder , and upon that the plaintiff being the eldest daughter entred , and upon the entry brought this action : and harris serjeant argued for the defendant , that this shall be a condion and not a limitation , and he said that mews and scholiasticas case is not adjudged against him , see the commentaries , . b. and it shall be taken strictly , for that , that it comes in defesans of the estate , and then admitting it is a condition it is not broken , for this conclusion and agreement is only the agreement of the husband , and though that the wife be joyned , yet be that for her benefit or prejudice , that shall be intended only the act of the husband , and he only shall be charged , as in the ed. , . husband and wife joyne in contract , and the husband only brings action upon that , and ed. . . husband and wife joyne in covenant , and the action was brought against them both , and it was abated , for that shall charge the husband only , ed. . the husband and the wife joyne in an action upon the statute of laborers , and the writ abated , and so in cases of free-hold , as ed. . . b. the husband and the wife being tenants for life , joyne in praying aid of a stranger , and this shall be no forfeiture of the estate of the wife , and ed. . . a. statute merchant was made to the husband and wife and they joyned in defeasans , that shall not be defeasans of the wife , and h. . dyer . the husband of the wife executrix , aliens the tearme which was let to the testator upon condition , that he or his executors should not alien , and by baldwin by the alienation of the husband the condition was not broken , for it was out of the words , so here the agreement and conclusion being made by husband and wife shall be intended the act of the husband only , and so out of the words , and by consequence , out of the intent of the condition , and shall be taken strictly , but he seemed that the condition shall be void , for the words ( conclude and agree ) are words uncertain , for what shall be said conclusion and agreement within the said provision , and for that as it seemes it is so uncertain as going about , but admitting that it is good , yet it shall be good but to some purpose , but not to restraine the daughter which was tenant in taile , to do lawfull acts , as to suffer a recovery , or to levy a fine , as it is resolved in mildmayes case , coke . by which it appears that she hath as well power to dispose that by recovery as of fee simple , notwithstanding that the reversion remaines in the giver , as it appears by ed. . . for all lawfull acts made by tenant in taile shall binde the issue , as ed. . octavian lumbards case , grant of rent for release of right is good , and shall binde the issue , for there are foure incidents to an estate tayle , first , that he shall not be punished for waste . secondly , that his wife shall be indowed . thirdly , that the husband of the wife tenant in tayle , shall be tenant by the courtisie . fourthly , that tenant in tayle may suffer common recovery . so that a condition which restraines him so that he cannot suffer a common recovery is void , for it is incident to his act , and it is a lawful act , and for the benefit of the issue as it is intended , in respect of the intended recompence , and he said that a feoffment to a woman covert or infant , shall be conditionall , that they shall not make a feoffment during their disability , is good , for that the law hath then made them disable to make a feoffment , so a lease for life or years upon condition that he shall not alien , is good , in respect of the confidence that was reposed in them by the lessor , and so concluded that the condition in this case which restraines tenant in taile generally from alienation . first , was uncertain in respect of the words ( conclude and agree ) secondly for that it was against law & so void , and for that prayed judgment for the defendant . hutton serjeant for the plaintiff , he argued that the verball agreement of the wife shall bind her , notwithstanding the coverture , for that , that this is for her benefit , for in performance of the said agreement , she suffers a recovery to the use of her selfe and her heires , and so dockes the remainder , and he agreed the cases put by the other part which concerne free-hold , but he said in cases of limitation of estates , as if limitation be , if a ring be tendred by a woman that the land shall remaine to her , and she takes a husband , and after that she and the husband tender the ring , this shall be sufficient tender , and it shall be intended the act ▪ of the wife , and . h . . a. a man devises his lands to a married woman to be sold , she may sell them to her husband ; and though that it be not any agreement of the husband only , yet here is an act done , in a precipe brought against the wife , and she vouches over , for that is not only an agreement , but an act executed , upon which the estate limited to the eldest sister shall take effect , and the . coke the . a. beckwiths case . if the husband and the wife , joyne in a fine of land of the wife , the wife only without the husband may declare the use of that . and he intended it was a limitation and not a condition , and so it might be well at this day in case of devise , and then the act shall be , that the estate is limited to have beginning , being made the estate of the youngest daughter which made the act , shall be destroyed and determined , for if it be a condition , then all the daughters shall take advantage of that , and this was not the intent of the devisor , for they are the parties which should be restrained by the devise from alienation . and also he cited wenlocke and hamonds case cited in bractons case , . coke . b. where a copy-holder in fee of lands devisable in burrough english , having three sons and a daughter , deviseth his lands to his eldest son , paying to his daughter and to his other sons forty shillings within two yeares after his death , the devisor maketh surrender according to the use of his will and dieth , the eldest son admitted , and doth not pay the money within the two yeares , and adjudged that though the word paiment makes a condition , yet in this case of devise the law construes that to a limitation , and the reason is there given to be , for that , that is , it shall be a condition , then that shall discend upon the eldest son , and then it stands at his pleasure , if the brothers or sister shall be paid , or not , and . assis . . cytes in nourse and scholasticas case , commentaries . b. where a man seised of lands in fee devisable , deviseth them to one for life , and that he should be chapleine and single for his soule all his life , so that after his decease , the sayd tenements should remaine to the commonalty of the same towne , to finde a chapleine perpetuall for the same tenements , and dyed , and adjudged that this shall not be a condition of which the heir shal take advantage , but limitation upon which the remainder shall take effect ; and also he cyted s. e. cl●ers case , coke . a. b. & h. . . & pennants case , coke . a. that if a man makes a lease for years , upon a condition to cease , that after the condition is broken , grantee of reversion may take advantage of that ; so he said in the case at the bar , when the first estate is determined and destroyed by the limitation , then he to whom the remainder is limited shall take advantage of that , and not the heire , for as he intended an estate of inheritance may as well cease by limitation of devise as tearme , as in ed. . lands are given to one so long as he hath heires of his body , the remainder over , and if he dye without heires of his body , the remainder over shall vest without entry , and the free-hold shall vest in him ; and ▪ and . phil. and mary , dyer . and . fisher and warrens case . if a man devise lands to one for life , the remainder over upon condition that if he do such an act that his estate shal cease , and he in remainder may immediately enter , there he in remainder shall take advantage though he be a stranger , for that that the estate determines there without re-entry : and he saith , that the case of wellock and hamond , cyted in barastons case , was a stronger case then this , for there the limitation was upon fee-simple , and here it is upon an estate tayle ; and the law hath favourable respect to devises , as in barastones case , is alteration of words for the better exposition of that , for shall is altered to should ; and also see eliz. dyer . . for the marshalling of absurd words in a will for the expounding of that ; and eliz. cheekes case , he cyted to be adjudged , that if a man devise his lands to his wife , and after her death to his son , and the remainder to his sayd wife in fee-simple , the husband of the wife having issue , shall not be tenant by the curtesie , for alwayes the judges have made such favourable construction of wills , that if estates devised by will might be created by act executed in the life of the party , then it should be good by devise ; and to the objection ( that conclusion and agreement is uncertaine , and so for that shall be voyd ; he saith that it is not so uncertaine , as going about , or resolve and determine an attempt or procure , as in corbets case , first of coke . b. or as attempt or endeavour , as in germins and arscotts case there cyted , fol. . a. see coke . a. mildmayes case , and also the words subsequent are repugnant , that the estate tayle shall cease , as if the tenant in tayle were dead , and not otherwise , which is absurd and repugnant , for the estate tayle doth not determine by his death , if he doe not dye without issue : and also he sayd , that it is more reasonable that the perpetuity in scholasticas case , for here the limitation depends upon agreement , which is a thing certaine , upon which the issue may be joyned ; and also the condition doth stand with the nature of the estate tayle , and for the preservation of it ; and recovery is against the nature of it , for this destroyes the estate tayle , and is onely a consequent of it , and not parcell of the nature of the estate , and this is the reason that littleton saith , that an estate tayle upon condition that he should not alien , is good , for that preserves the estate , and also preserves formedon for him in reversion , if there be a discontinuance ; and with that agreed h. . . . and he sayd , that there was a judgement in the point for his clyent for another part of the land , and he cyted edw. . fitz. feoffment placito the last , and fitzherberts natura brevium ( ex gravi querela ) last case ; and so concluded and prayed judgement for the plaintiff ; and this case was argued againe by shirley serjeant for the defendant , and he intended that the agreement is voyd to the wife , and shall be intended the agreement of the husband onely , for a marryed wife cannot countermand livery , assis . . and if a woman makes a feoffment upon condition to enfeoff upon request made by her , and she takes a husband , she cannot make request after coverture , assisarum : so that he intended that this shall be intended the agreement of the husband onely , and not of the wife , and yet he argued that declaration of a use by a marryed wife , shall be good , according to beckwiths case : but he sayd , that the reason of that is , for that that she is party to the recovery , which is a matter of record , and as long as the record remaines in force , so long the declaration of the use shall be good ; and also he argued , that if the condition being , that if the wife conclude or agree to any act to make discontinuance , that then , &c. that that shall be intended unlawfull acts , and recovery is no unlawfull act , and for that shall not be within the restraint of the condition , as the earl of arundels case , eliz. dyer . and admitting that it is a limitation , yet it shall be of the same nature as a condition , and as well as a condition , that tenant in tayle shall not suffer recovery , is voyd . so also is such limitation void , and so it was intended before the statute of donis conditionalibus and it appeares by the pleading , that the parties did not intend to take advantage of the agreement , for it is pleaded that at the time of the recovery suffered , the youngest daughter was seised of an estate tayl , the which could not be if her estate were determined and destroyed by the ( agreement and conclusion ) so that the last words make the forfeyture ; for the first are not unlawfull , and before the execution of the recovery the estate tayl is determined , and so he concluded , and praied judgement for the defendant , barker serjeant argued for the plaintiff ; it shall be intended a limitation and not a condition , for a will shall have favorable construction according to the intent of the devisor , for a joyntenant may devise to his companion , . ed. . and fitz. na. bre. ex gravi querela , last case . a man devises land to his wife for life upon condition , that if he marry , that it should remain over to his son in tayl , and the wife marries , and the son in remainder sues ( ex gravi querela ) by which it appeares that it was a limitation and not a condition , and , ed. . devise was to one for life upon condition that if his sonn disturbed him , that then it should remaine over in taile , upon disturbance ; he in remainder in tail brings formedon , by which it appears it was a limitation , and with that agrees all the justices in assisarum . and wellock and hamonds case cited in barastons case before , and . eliz. dyer if land be limited to no third person by the devise , then the heir shall enter for breaking the condition , and also he said , that it appears by littleton , and h. . and , and h. . and eliz. . the earle of arundells , case which conditioneth that tenant in taile shall not alien , standeth with his estate , but not with fee simple , and so it is adjudged in nowes and scholasticas case , which is adjudged in the point , which as he saith cannot be answered , and the words of the condition are not that her estate taile shall cease as if shee had been dead , but as if she had not been named , which is not so repugnant or absurd as the other , and this compared to ed , . where the estate was limited till it was disturbed . and he also argued , that the agreement of the wife shall be a forfeiture notwithstanding the coverture , for when the estate is granted upon such condition , he which hath the estate shall take it subject to the condition ; as if two lessees are , and one seals the counterpart onely , yet the other shall be bound by the covenants contained in it ; and h. . . a woman disavows to be executor , notwithstanding that shee was marryed , and if precipe had been brought against the husband and wife , the default of the husband shall binde the wife , and so she shall be punished for waste made during the coverture , and so concluded , and prayed judgement for the plaintiff : foster justice , that an estate of free-hold shall not cease by agreement or conclusion without entry , for it is a matter of inheritance and free-hold , and it is not like to h. . . which concerns chattels and goods ; and walmesley justice accorded with him : warburton justice , it hath been adjudged in scholasticas case , that the condition was good , and therefore he would not deliver his opinion without argument ; coke cheif justice , that the agreement is void to a woman married , for then she was married to a husband , whom in her life she could not contradict , and a devise upon condition , that if she conclude or agree , as this case is , is void , for it is a bare communication , upon which the inheritance doth not depend , and so he said , it hath been twice adjudged , in corbets case , and germins case , and arscots case , and richells case in littleton , it was upon condition that he should not alien , and this was adjudged to be void ; but yet if the condition were if he alien , and not if go about or intend , or conclude , or agree as in the case at the bar , for there is no such case in all our bookes as this . secondly , for that , that the words are , if they do any act , that then the estate shall cease , and this is repugnant , for when the act is done , then the estate tayle is barred , and cannot cease , but if it had been but a feoffment , then the right had remained , and he said that such a condition had been void before the statute of donis conditionalibus , when it was but fee simple conditionall , be it a condition or a limitation , and he said that scholasticas case is of fine which is only discontinuance till the proclamations are past , and if dead before may be avoided by remitter , in germins and arscotts case , the condition was , that if he go about or indeavour , and this was adjudged to be void , though that it be in devise in respect of the uncertainty , and he said that the ( agreement or conclusion ) is so uncertain , and may be well compared to that , for here the estate shall cease by the agreement , as well as it may cease by the going about , also he seemed that the freehold cannot cease without entry , for if use cannot cease without entry as he intends , much lesse a free-hold cannot , though it be by devise , and he seemed that it shall be no limitation , but a condition , and judgment accordingly , if cause be not shewed the next tearm , and in trinity tearme then next insuing this case was argued againe by dodridge serjeant of the king for the plaintiff , and he said that there are three questions to be disputed . first , if it be a good limitation . secondly , if the recovery be a breach of that . thirdly , admitting that it may be broken , if the agreement of the husband and the wife shall be said to breake it , and to the first he seemed that it is a limitation and not a condition , and such a limitation that well might be with the law , and that it is a limitation it is agreed in scholasticas case , commentaries , and the reason of the judgment there is , that if the intent of the devisor appears , that another shall take benefit of that and not the heire , that then it shall be but a limitation and not a condition , and he in remainder shall take benefit of that , and for that in the principall case mary the eldest daughter , to whom the remainder was limited , shall take benefit of that , and with this agrees the case of fitz. na. bre. ex gravi querela last case , that if a man devises lands to his wife for life , upon condition that if she marry that the land shall remain over , and after she marryes , and he in remainder sues by ( gravi querela ) by which it appears that it is a limitation and not a condition , and with this agrees . and . p. and m. . dyer , jasper warrens case , where a man devises land to his wife for life , upon condition to bring up his sonn , remainder over , and agreed to be a limitation and not a condition , and so he concluded this first point , that it is a limitation and not a condition . secondly , that it is a lawfull limitation , for there is not any repugnancy in that , as it is in corebts before cited , for there are no words of going about , for he agreed that this is absolutely uncertain and void , and so is germin & arscots case , where ther is not only a going about , but repugnant going about for he ought to go about and before discontinuance , and then his estate shall be void from the time of the going about and before discontinuance , but here it is upon ( conclude and agree ) plainly and apparently , and conclude and agree is issuable , and a jury may try that , and it will not invegle any man , but the law will not suffer issue upon such uncertainty as going about or purposing , but attornements and surrenders are but agreements , and yet are issuable : and so in the principall case , and in mildmayes case coke it is agreed that a condition that a tenant in taile shall not suffer a recovery is void , for recovery is not restrained by the statute of westminster . but here it is not so but in generall , that he shall not conclude or agree to alien or discontinue , but that which cannot be a condition good in the particular , may be good in the generall , as littletons case , gift in taile upon condition that he should not alien is good , otherwise of fee simple , with which h. . . and h. . . . accordingly . thirdly , that it is a breach of the limitation , condition , that alienation and discontinuance be by recovery , which is a lawfull act , and it is a priviledge incident to the estate taile , and though that the agreement was made by the husband and the wife during the coverture , and so should be if the husband and the wife had levied a fine , see h. , . condition , that if the condition had been expressed that they should not levy a fine had been void , and here this verball agreement betwixt the husband and the wife and the third person shall be for forfeiture of their estates , for this is the agreement of the wife as well as of the husband , as it appears by becwithes case . coke before cited , where the husband and the wife agree to levy a fine , and that the fine shall be to the use of the connusee , this is good declaration of the use , though that it be of the land of the wife and during the coverture , and cannot be avoided by the wife after the death of her husband , for it was the agreement of the wife , though it be not by any indenture to declare the use of the fine , so many acts in the country made by the husband and the wife , shall be intended the act of the wife , as well as of the husband , as in the ed. . . the abbot of peterboroughs case , the husband and wife granted rent for equality of partition , and this shall binde the wife after the death of the husband , for it is her act as well as the act of the husband , and shall be intended for her benefit , and so here by the recovery the wife shall be tenant in fee simple , which was tenant in taile before , and ed. . . feoffment to a married wife upon condition to re-enfeoff , and she with her husband makes the re-enfeoffment it is good ; so a woman being lessee for life , and with her husband attorn upon a grant of reversion , is good , and shall binde the wife after the death of the husband , ed. . . ed. . attornment . ed. . attornment , also this estate was made to the wife when she was sole , and for that it shall be accounted her folly , that she would take such a husband that would forfeit her estate , but with that agreed the reason of the booke of h. . . where a woman tenant was bound by the ceasing of her husband , and so he concluded and prayed judgment for the plaintiff , and so it was adjourned , see another argument of this case in michaelmas tearm . jacobi . by haughton and nicholls serjeants . pasch . . jacobi , . in the common bench. pitts against dowse . in an ejectione firme upon not guilty pleaded , the case was this , a man makes his will , by these words , i bequeath all my lands to my son richard , except my chauntery lands . and i devise all my chauntery lands to be devided amongst all my children , men and women alike , except my son richard. and if richard die without issue , the remainder to a. my second son , the remainder to b. my third son , the remainder to c. my fourth son , the remainder to my next of blood , and so from heire to heire . and so likewise i would to be done upon my chauntery lands and tenements , in case all my aforesaid children die without issue . then i would the one halfe of my chauntery lands to remaine to the next of kin , and the other half to the hospitall of m. and the question was , what estate the heire of the eldest son shall have in the chauntery lands , and it was argued by dodridge the kings serjeant , that the heire of the eldest son shall have estate tayl in the chauntery lands , the devisor devises no estate to richard his eldest son in the chauntery lands , nor limitts any estate of that in certaine , and for that he seemed that the youngest sons and daughters shall be tenants in common for life , and by this manner of interpretation , every part of the will shall be , for first he excludes richard himselfe , so that he shall have nothing in that , and then by the limitation to the younger children to be equally divided between them , makes them tenants in common , see . h. . . dyer . and he cited lewin and coxes case , to be adjudged , michaelmasse . and . of eliz. pasche . eliz. rot. . where a man devises lands to his two sons to be equally divided , and adjudged that they are tenants in common ; so devise to two part and part like , and equally divided , and equally to be divided is all one , and for that there is no other words to make an estate of inheritance , it shall be an estate for life , and the remainder shall be directed according to the estates limited of the other land. and he seemed that the words in the last sentence , all my aforesaid children , shall extend to richard his eldest son , as well as to the others , and so all the will shall stand in his force , which may be objected that richard the eldest son shall be excluded out of the possession , and for that see . eliz. dyer . . . chapmans case , and also he cited one case to be adjudged , trinity . eliz. rot. . betweene bedford and vernam , where a man deviseth all his lands in alworth , and afterwards purchaseth other lands in the same town , and afterwards one comes to him to take a lease of this land newly purchased , which the testator refused to let. and said , that these lands newly purchased should goe as his other lands . and upon his death bed adds a codycell to his will , but saith nothing of his purchased lands , and adjudged that the purchased lands shall passe , and so concluded and praied judgement : harris serjeant , that it is a new sentence , and richard is excluded and it shall be a good estate tayl to the youngest children , and foresayd children shall be intended them to which the chauntery lands are limited , see ratcliffes case . of coke adjudged , that they shall be tenants in common by the devise to he equally divided , and thall not be surviving , but every youngest children shall have his part in tayl , though that the first words do not containe words of inheritance , yet the last words , in case all my children die without issue , declares his intent that they should have an estate tayl , see the . of eliz. dyer . . claches case , that when he hath disposed of part devised to richard , then disposeth of the residue , and the sentence begins with ( and so likewise ) and that shall be intended in the same manner as he had disposed of the lands devised to richard , for he hath devised the remainder otherwise , that is , to an hospitall , and so concludes and praies judgement accordingly , coke cheife justice saith , that it was adjudged between coke and petwiches . eliz. that if a man devise a house to his eldest son in tayl , and another house to his second son in tayl , and the third house to the third son in tayl , and if any of them die without issue , the remainder to the other two equally , this shall be but for life , for this enures to the quantity of the land , and not to the quality of the estate : and he said that richard is excepted without question , for it is but a will , and every of the youngest sons therein shall have the chauntery land one after another , and richard shall have no part , and the chauntery shall have nothing till they all are dead , and he likened that to frenchams case , where lands were given to one and to his heires males , and if he died without issue , the remainder over , the issues females shall not take , though that it be if they die without issue , for expresse it makes to cease only , and so it was adjourned . petoes case . peto suffers a common recovery , to the use of himselfe for life , the remainder to his eldest son in tayl , with diverse remainders over , to the intent that such annuities should be paid as he by his last will or by grant declares , so that they did not exceed the summ of sixty pound , and if any of the said rents be behind , then to the use of him to whom the rent shall be behind , till the rent be satisfied with clause of distresse : rent of twenty pound was granted to his youngest son for his life , the grantee distraines for the rent , and in replevin avowes , the plaintiffe repl●es , that by the non-paiment the use riseth to the youngest son , by which it was objected that the rent shall be suspended ; quere if without demand , or if the distresse shall be demanded , or that the use shall not rise till after the distresse , and to the distresse well taken , and agreed by all that the plaintiff shall take nothing by his writ , and that the eldest brother hath nothing in the land. judgement was had against a defendant in debt , and capias to satisfie awarded , and ( non est inventus ) returned , and scire facias awarded against the bayl , and upon the first scire facias , the principall defendant yeelds his body in execution , and it was very good , for before that the bayl had no day in court , and in the kings bench if the defendant yeelds his body upon the second scire facias it shall be accepted ; and if a man be bayl upon a writ of error , if the judgement shall not be reversed , he shall be in execution againe : it was objected by hutton serjeant , that the scire facias is against the bayl , to know why the execution shall not be awarded against the bayl , and that ought to be delivered to the sheiriff , before the day of the returne , or otherwise it shall be erroniously awarded , and then the party may yeeld his body to prison at any time , and discharge his bayl , and agreed that bayl in this court may be released . accompt doth not lie for any sum certaine . pasch . . jacobi , in the common bench. john reyner against powell . see hillary . jacobi , . haughton serjeant argued , that there shall be a good estate tayl of a copy-hold , and that by the custome after the making of the statute of westminster . and he agreed that at the common law , all estates were fee simple absolute or conditionall , and that the estates tayl were created by the statute of westminster . and do not exclude customary estates , as it appeares by littleton , who saith , that tenant at will by copy of court roll by custome may be in fee simple , and so of estate tayl , and with this agrees many other authors , h. . b. tenant by copy-hold of court roll resolved in the point , and that a formedon in the discender lieth for that , and as the statute of westminster . divides estate tayl and fee simple , so may custome of a mannor as well as custome make an estate at will , which is personall and determines by the death of any of the parties to discend , and as well as the custome of london ( of not moving things fixed ) is created by custome , as well may formedon be created by custome , and also the statute is , that gives cui in vita , extends to a copy-hold , so the statute of limitation , as it appeares by brooke , limitation , ed. . and with this agrees also heydons case , and though that the words are , voluntas donatoris in the charter , &c. yet the estate tayl may be created by devise . so that the statute shall not have such literall construction , and as well as a lease for a hundred yeares may be within the statute of . h. . which speakes only of discontinuances , as it appeares by sir george brownes case , . coke , so may a copy-hold estate which is but an estate at will be within the statute of westminster . and it is confest by the other part , by pleading that he was seised in tayl according to the custome of the mannor , and it is not pleaded that he had issue at the time of the alienation , and the other party claimed by the alienation , the which was not good , if he had no issue at the time of that if he had but fee simple conditionall , and so concluded and praied judgement , &c. dodridge serjeant of the king saith , that the reputation of the estate consists upon two parts , first the name , secondly the nature of the estate tayl , and for both the makers of the statute of westminster . bad no intention that this should extend to copy-hold , and first for the name , which gives the being , he cited fitz. natura brevium . . c. where it is sayd , that copy-tenants , or copy-holders , or tenants by copy , is but a new terme found , for of auncient times they were called tenants in villenage or of base tenure , as this also appeares by the old tenures , by which it appeares that then they were called and named tenants , which held in villenage or of base tenure , and bracton , booke . chap. . in the end speakes of that , and calls them villaines , sokemaines , and that if such a tenant will transfer his tenement , let it be delivered into the hand of the lord or his steward , and he wrote immediately before the statute of westminster . and agreed with fitz. na. bre. and also bracton , booke . fol. . saith , that such tenants have used to plow the demesnes of the lord , and calls and names them as before ; and . ed. . he is called customarius ; so that custome doth not make the certainty of his estate if he hath any , and he said that . ed. . . is the first in law ; in which is any mention of these lands , and there they are called neists lands , and h. . . a. they are called sokemaines by base tenure , and lambert calles it folkland , by which and severall names he saith , that the basenesse of the estate appeares , and to the estate he saith that originally it was but at the will of the lord , though that it be according to the custome of the mannor , so that the lord cannot put him out if he performe the services . and the register doth not respect him , for he hath not framed any originall for him , to give him remedy by the common law , but only in the court of the lord , though that erronious judgement be given : also he cannot prescribe but in the name of the lord , as it appeares by . ed. . fitz. prescription , that such estates which are incident to fee simple , as dower , not tenants by the curtisie cannot be derived out of this without custome , nor that warranted . so that his reputation appeares by his name and also by his nature : also he intended that the makers of the statute of westminster , did not intend that the statute should extend to this , for it is , oppositum in objecto , for custome is without time of memory . and the statute of westminster . was made . ed. . the beginning of which every one knowes . also the statute of westminster . doth not extend to any lands , but those which the tenant might have aliened before the statute . but the copy-holder had not any power to alien , for the lord ought to be his instrument and hand , as bracton saith , to alien , transfer he cannot , but by the hands of the lord , and it must be restored to the lord , the words of the statute are , the will of the giver in the charter , &c. so that the statute intends such lands which may passe by deed and fine , and devise his deeds , and the deed extends to them , for a fine is chirograph , and devise to be made by copy of court roll is not so , for that is only of acts made in the court of the lord , it cannot be within the statute , for copy-hold ought to be held of the lord , and tenant in tayl shall hold of the giver , and so cannot a copy-holder , which hath so base an estate . and if this shall be so , these mischeifes will insue . that is , that this base estate should be of better security , then any estate at the common law , for fine shall not be a barr of that , for it cannot be levied of that , also recovery cannot be suffered of that , for there cannot be a recovery in value neither of lands at the common law , neither of customary lands , for they cannot be transferred but by the hands of the lord. and to littleton he agreed , and also , ed. . which agrees with this , where it is said that at steben●eath , a surrender was of copy-hold lands to one and the heires of his body , but he said , that that shall not be an estate taile , for then the estate hath such operation , that this setles a reversion and tenure betwixt the giver , and him to whom it is given , but this cannot be of copy-hold land , for this cannot be held of any , but only of the lord , and to the others , this estate doth not lye in tenure , and yet he agreed that of some things which did not lye in tenure , estate tail may be , but land may be intailed , but copy-hold estate is so base , that an estate tail cannot be derived out of it , so that though that custome may make an estate to one and the heires of his body , yet this cannot be an estate taile but fee-simple conditionall , and also he agreed that they might have formedon in discender , but it is the same formedon , which was before the statute , as if tenant in fee-simple conditionall before the statute , would alien before issue , but it was no estate taile , with the priviledges of an estate taile before the statute , and to the other matter of surrender , that is the admittance of the parties which is an estate taile , that doth not conclude the court , as it appears by the lord barkleys case in the commentaries , where the estate pleaded severally by the parties is not traversed by any of them , and so concludes , and prayes judgment , &c. and this case was argued again in trinity tearme next ensuing by montague the kings serjeant for the defendant , and he said , that there are three questions in the case . first , if copy-hold land may be intailed . secondly , admitting that it may be intailed , if surrender makes discontinuance . thirdly , if it shall be remitter ; and to the first , he seemed that it might be intailed and that it shall be within the statute of westminster . and first for the antiquity of that , he said that littleton placed that amongst his estates of free-hold , and hath been time out of minde , and is a primitive estate , and not derived out of the estate of the lord , and the lord is not the creator of that , but the means to convey that after that it is cerated , and what is created then shall have all the priviledges and benefits which are incident to it , and shall be nursed by the custome , and is time out of minde , and the law alwaies takes notice of it , and he cited , h. . . by hankf . bracton , fitz. na. bre. c. and brownes case . coke , which is not simply an estate at the will of the lord , but at the vvill of the lord according to the custome of the mannor , and when it hath gained the reputation of free-hold , then it shall be dircted according to the rules of the common law , and . and . p. and ma. dier . . allow copy-hold estate to be intailed , and he saith , that no statute hath more liberall exposition then the statute of westminster . . ed. . incumbrance shall not charge the issue intaile , also a copy-holder shall have a cui in vita , also a copy-hold is within the statute of limitation ; and so upon the statute of buying of pretenced rights : and it is alway intended when a statute speakes of lands and tenements , that copy-hold lands shall be within that : and he saith , that all the objections which have been made of the contrary part are answered in heydons case , but he relyed upon that , that every reall inheritance is within the statute of westminster . ed. . formedon lyeth of copy-hold land , ed. . . estate tayle is of a corrody and office , which proves , that copy-hold is a reall inheritance , and for that shall be within the statute , ed. . . gavelkinde land may be intailed , rich. . avowry . . rich. . . copy-holder shall be charged with fees of a knight at parliament , and . eliz. dier . . lands in ancient demesne were intayled , and he said that the reason is , that for that it is inheritance and time hath applyed them to an estate , and so concluded , and prayed judgment for the defendant . hutton serjeant argued for the plaintiff , that copy-hold lands cannot be intailed , for that is but a customary estate ; and the law doth not take any notice of it , but onely according to custome , for there were no estates tayle before the statute , for then all were fee simple absolute or conditionall ; that is , either implyed , or by limitation , which cannot be of an estate tayle , which is not within the statute of westminster . for no actions are maintainable by that , but those which are by the custome , and a writ of false judgment : see fitzherberts natura brevium , . ed. . f. prescription . that it hath no incidents , which are incident to estates at the common law without custome , as dower : see revetts case , and so is tenancy by the curtesie , and there shall be no discent of that to take away entry , and so of other derivatives : and he seemed that it is not within the statute for three reasons apparent within the statute . first , that it is hard that givers shall be barred of their reversions ; but in case of copy-holds , the giver hath no remedy to compell the lord to admit him after the estate tayle spent , but onely subpena , and in this case the lord may releive himselfe for the losse of his services , for that the statute provides no remedy for him . secondly , that the statute doth not intend any lands , but those of which there is actuall reversion or remainder , and those which passe by deed ; so that the will of the giver expressed in the charter , may be observed , and of which there may be a subdivision , as lord , mesne , and tenant , for there shall be alwayes a reversion of the estate tayle , and the donee shall hold of the donor and not of the lord. also it seems that the statute doth not intend to provide for any , but those for whom the vvrit in the formedon ordained by the statute lyes , and agreed that for offices and such like , formedon lyeth , if the party will admit estate tayle to be discontinued . also the statute intends those things , of which a fine may be levyed , for the statute provides , that ( the fine in his owne right should be nothing ) but by copy-holder fine cannot be levied , and for that he shall not be within the statute , and if the words do not extend to that , then the equity of the statute shall not extend to that , and he said that copy-hold is not within any of the statutes , which are made in the same yeare , as the statute which gives elegit , and such like , and to littleton that an estate by copy , is where lands are given in fee-simple , fee-taile , and that formedon lies for that with which agrees ed. . formedon . it seems that the estate taile here mentioned , shall be intended fee-simple conditionall at the common law , and the formedon in discender which was at the common law , for alienation before issue : and so littleton shall be intended , for the estate is within time of memory ; see heydons case , that a copy-hold estate is an estate in being within the statute of h. . and manwood there said , that insomuch the estate of that is created by custome , and the estate taile is created by statute , yet it shall not be within the statute , and he said that the case of h. . b. copy of court . is repugnant in it self in the words of formedon , for he saith , though that formedon was given by statute , and was no otherwise in discender , yet now this writ lies at the common law , and it shall be intended , that this hath been a custome there , time out of minde , &c. and so he concluded , and prayed judgment for the plaintiff . pasche . jacobi . in the common bench. yet bearblock and read. see the beginning before hillary . jacobi , this case was argued by hutton serjeant , that the plaintiff in the action of debt ought to recover , for if executor may pay debt due by the testator by obligation , before debt due by judgement , this shall be a ( devastavit ) as it is resolved in trewinyards case , . and . edward . dyer . . and he shall be charged for the iudgement with his owne goods . and so it was adjudged between bond and hales . eliz. that judgement at the common law shall be first satisfied before the statute , which is but a pockett record , and medium redditer in invitum . also it was adjudged in harrisons case , . coke . b. that debt due upon an obligation shall be first payd before statute with defeasans for performing of covenants , the which defeasens is not broken , and also it is adjudged between pemberton and barkham here cited , that judgement shall be satisfied before statute merchant or staple or recognizance , though that the statute be acknowledged before the judgement had by the testator . see this case in harrisons case , . coke . b. and in . coke . a. sadlers case , upon which he infers , that if an executor first satisfie a statute or a recognisance before a judgement , that this shall be a devastavit , as well as if he satisfies an obligation , first as in trewynyards case , and that when the plaintiff which hath judgement , the executor may aid himselfe by audit a querela by this matter subsequent : quere of doctor druryes case , as in h. . . in detinue against gamishe , and judgment had for the plaintiff . if the judgement be reversed , restitution shall be made to every one which hath losse . so here by audita querela , if the executrix hath not more then was taken in execution by the statute , and it seemes to him that the judgement in the scire facias shall not be a barr in this action , for the judgment remaines , executrix and the plaintiff may have action of debt upon that . but of the contrary , if the plaintiff had brought action of debt upon the judgement and had been barred , then shall be barred in scire facias also ; but the plaintiff this notwithstanding , may have scire facias upon surmise , that there are new assets , come to the hands of the executor , and so he concluded and praied judgement for the plaintiff . nicholls serjeant for the defendant relies only upon the judgement had upon the scire facias , and that till that he defeated , the plaintiff cannot maintaine action of debt , for the action of debt is nothing but demanding of execution , and for that till the first judgement be defeated the plaintiff hath no remedy at the common law. all things which barr the execution of the judgement in scire facias , these shall be barrs in an action of debt , as in baxters case here last adjudged , in an action upon the case for slanderous words , the defendant pleads that he had justified the speaking of these words , at another time in another action brought against him , and had a verdict and judgement upon that , and so demands judgement , and adjudged a good plea , till the first judgement is reversed , for judgement is the saying of the law , and . eliz. dyer . . in debt for costs recovered in a writ of entry , the defendant pleads that the plaintiff hath sued an elegit , which was executed , and a good barr in an action of debt , and so . and . p. and m. dyer . . in debt for dammages recovered in assise , the defendant pleads in barr , that after the verdict given and before judgement , the plaintiff entred into the land , and there no judgement is given . but it seemes if the plaintiff fayl of course that the common law prescribes , that then he shall not have execution , ( for of those things which rightly are acted let there be executions ) but if the defendant in the first action had pleaded a release , and judgement was given upon that against him , he cannot plead that againe , ( for it runs into the thing judged , ) . ed. . in debt against an executor , and part of the assetts found , the plaintiff cannot have new scire facias without averrment that there are new assetts , and . h. . action with averment that there are assets , and judgement good both waies , and presidents shewed of both courts . and he intended that the executor could not have helped himselfe by audita querela , unlesse he feares to be impleaded , but after execution he cannot have restitution , and so concluded and praied judgement for the defendant . coke cheife justice , that there cannot be a devastavit in the wife , unlesse that it be voluntary payment by her , for the statute of . h. . gives present execution of a statute staple without scire facias . so that the wife had no time to plead the judgement , and for that this unvoluntary act , shall not be a devastavit , for she is no agent , but only a sufferer . and at the common law if the plaintiff hath judgement in an action of debt after the yeare he hath no remedy , but new originall , and this mischeife was remedied by the statute of magna charta , which gives scire facias in place of new action . but it seemes to him that the barr in the scire facias shall remaine good barr , till it be reversed , as in rich. . a man hath election to have action of detinue , or action of trespasse , and he brings his action of detinue , and the plaintiff wages his law , and after brings an action of trespasse , and the first nonsuit pleaded in barr , and adjudged a good barr , edw. . accordingly : foster , walmesley , and warburton , agreed without any doubt , but they sayd , that if the first execution had been had by covin , then it should have been otherwise . in debt upon buying of diverse severall things , the defendant ▪ confesseth part , and for the residue the action being brought by an executor in the detinet onely , the defendant pleads , he oweth him nothing ; and upon this tryall was had , and verdict for the plaintiff , and after verdict it was moved , that this misjoyning of issue was ayded by the statute of jeofailes ; but it was resolved by all the justices , that it was not ayded , for it was no misjoyning of the issue , but no issue at all ; but if there had been issue joyned , though that it were not upon the direct matter , yet this shall be ayded , and at the end the plaintiff remitted the part that the issue was joyned , and prayed judgment for the residue , and this was granted , but if the plaintiff had been nonsuited that would go to all . administrators during the minority had judgment in debt , and before execution sued , the executor came to his age of seventeen yeares , and how this execution shall be sued comes the question , for the power of the administrator was determined by the attaining of age of . yeares by the executor , and the executor was not party to the record , and for that he could not sue execution ; but it seems that the executor may sue speciall scire facias upon the record , and so sue execution in his owne name : see h. . . a. action upon the case for these words ( he hath stolne forty staure of lead ( meaning lead in stauce ) from the minster , and resolved by all , that action doth not lye , for it shall be intended that the lead was parcell of the minster , and the ( innuendo ) shall not helpe that . pasche . jacobi . in common bench crane against colepit . thomas crane plaintiff in replevin against bartholemew colepit , the only question was , if tenant by discent of the age of twenty years and more , ought under one and twenty yeares to attorn to a grant of the signiory or not , and it was adjudged that the attornement is good for three reasons . first , for that he gives no interest , and for that it cannot be upon condition ; for it is but a bare assent . secondly , his ancestors held the same land by the payment of the rent and making of their services , and it is reason that the rent should be payd , and the services performed , and for that though that he shall have his age for the land , yet for the rent he shall not have his age , and though that it is agreed in ed. . that he shall have his age ( in per que servitia ) yet after his full age the grantee shall distraine for all the arrerages due from the first , so that the attornement is no prejudice for this infant , and he is in the number of those which shall be compellable to attorn , see ed. . age . ed . . ed. . and ed. . per que servitia , ed. . . ed. . infant of the age of three years attorned , and good , and ed. . . husband attornes , and that shall bind the wife , ed. . . h. . attornement of an infant is good to binde him , for that it is a lawfull act . thirdly , the attornement is a perfect thing , of which the law requires the finishing , that is , the grant of the signiory which is not perfect , till the tenant attorn , and foster justice said , that so it had been adjudged in this court in the time of the reigne of elizabeth , in which judgment all the justices agreed with one voyce , without any contradiction , see . ed. . . pasch . . jacobi , . in the common bench. as yet rowles against mason , see the beginning , michaelmas . jacobi . dodridge serjeant of the king argued for the plaintiff , he saith that there are two copies , first that a copy-holder for life under a . l. may nominate his successor . secondly , that such copy-holder after such nomination may cut down all the trees growing upon his copy-hold and sell them , and he saith that it hath been adjudged that the custome that copy-holder for life may sell the trees growing upon his copy-hold is void , between popham and hill , hillary eliz. in this court , so if the first custome doth not make difference by the nomination , the second is resolved to be void , and it seemes to him that the first custome doth not make difference , and to the objection that the first custome hath been adjudged to be good between bale and crab , he saith that the custome adjudged , and this custome as it is found differs in many points . first , it was found that every copy-holder for life solely seised without remainder , but here is sole tenant in possession , and this may be where there is a remainder , so that uncertainty in this makes the custome void , as in ed. . custome that an infant at the age of discretion may alien is void for uncertainty , also in the case here it is found , that the copy-holder may name who shall be next tenant to the lord , and doth not say to whom the nomination shall be made , but in the first case the custome is found to be , that the nomination ought to be to the lord ▪ in the presence of two copy-holders , also in the first it is found , that if they cannot agree of the fine , that the homage shall assess it ; but in this custome here found there is not any mention of that he ought to seek to be admitted , and doth not say at what court , the which ought to be shewed in certain , as it is resolved in penimans case , coke . where custome that a feoffment ought to be inrolled , is expressed , shall be inrolled at the next court , also in the first case to be found that after the fine is payd or offered , he which is named shall be admitted , and here is not any mention of that , so that he concluded that this is a new custome , and not the same custome which was in question between bayle and colepit , also it is found that the trees were cut immediately after nomination of a new tenant , and before any admittance or fine payd for him ; so that insomuch that the benefit was not equall as well as to the lord as to the tenant , as in ed. . . and ed. . . for plowing and turning upon the land of another , for that the custome shall be void . and to the second custome also it seems , that that is voyd and unreasonable . first , for that when any is alledged in the custome , that is inconvenient , though that it be not mischeivous , yet the custome shall be void , as in . assisarum . in assise brought against an abbot , which pleads custome , that all the houses of the south side of the street shall be devisable , and he claimes by force of a devise made according to that custome and adjudged that the custome is not good , for it is inconvenient that in one self same ancient town one house shall be devisable and another not , and upon that the plea was amended , so here , custome that a copy-holder may sell all the trees is inconvenient , for it doth not appeare that this custome extended to any other but to him : secondly this custome is against the common wealth , for every custome ought to have preservation and maintenance , and that shall not be here , for when one copy-holder hath sold all the trees , the successor shall not have any boots nor fire , and so by the same reason he may pull down the house . and so this tends to destruction , and rests in the will of a man if he will distroy or not . and this is inconvenient that such power should be given to one , which hath but an estate for life , as in . ed. . barr . copy-holder pleads custome of a mannor , that that copy-holder which comes first after a windfall falne , shall have it , and resolved to be void custome , for that it rests in the will of a man if he will finde that or not . so in . h. . . custome that if one find beasts doing dammage that he may distraine them , and have foure pence for his dammages , and adjudged void custome , for the dammages are nncertaine , and for that it is no reason that the fine shall be certaine , and . eliz. dyer . . custome that all devises and leases , granted for more then six yeares are meerly void forthwith , is a void custome , because contrary to common reason , and the liberty of one which hath fee simple . so hen. . . custome that the tenants of the mannor shall not use their common till the lord put in his beasts , is void , for it should not depend on the will of the lord ; so in the principall case the lord cannot grant copy-hold estate in reversion , for it depends upon the nomination of his tenant , and for that the custome shall be void . thirdly , the copy-holder hath prescribed to do a thing which is contrary to his estate , and doth not cohere with his estate , that is , that lessee for life shall cut the trees , for he hath but a speciall property in that , and not the ●bsolute property , and it is like to a case in ed . feoffments . and assise . where commander of an hospitall prescribes , that he and his predecessors , which have had the same office , have used to make leases for lives , and in an action brought by the prior it was adjudged that the custome is void , and so by consequence the lease was void , for the commander hath no estate to make it , so in fors● and hemlings case , . coke , and ed. . f. dat. custome that a married wife may make a will is void , for it doth not stand with the quality of her person , so here it is not with the quality of the estate , but it may be objected that it is a greater estate , then an estate for life , for it is perpetuall free-hold ; to that it may be answered in this case , it is no greater estate then for life , for the copy-holder hath only made nomination , but he which was nominated was not admitted , so that the tenant hath no greater estate , nor the lord hath granted greater estate then for life , but admit that he be tenant for life , with a remainder for life to him to whom the nomination is made , yet he cannot do such an act , and for that the cutting down of the trees shall be a forfeiture of his estate by custome , by which the estate is created , and copy-hold lands are not as other lands , which if they were let for life at the common law , the tenant were dispunishable for wast , till the statute of glocester , for it was the folly of the lessor to make a lease to such a person , which would make wast , and for that , as the benefit and priviledge of the copy-holder remaines , so the benefit of the lord shall not be abridged , and so he prayed judgment for the plaintiff . haughton serjeant seemeth the contrary for the defendant , and he agreed that customes ought to be reasonable , and if they be generally inconvenient , they cannot be reasonable ; and to the first exception , to prove that it is a new custome ; that is , that it is found that he is onely tenant in possession , without saying , without remainder , as it was in the first case ; to that he thought if it were true , that the copy-holder hath such priviledge that he might nominate his successor , it is not materiall , and to the lessening of the fine , that is found very certaine , for he that is nominated at the first requires admittance , and if the lord refuse that he shall be admitted , for such a fine that the homage assess , and so it is found , and that is very certaine , and the rather for that , that this is a speciall verdict . also he agreed as before , that custome ought to be reasonable , and if it be generally inconvenient , though it be not mischeivous , yet it shall not be good ; and to the case of assis . . custome to devise the tenements on the south side of the street , is not good , for that , that custome cannot be in one particular place certaine ; and also he agreed the case of windfall , for that tended to charge the lord , eliz. dyer . . . custome to have herriot the best beast , and if that be put out of the way before seisure , then the lord may seise and take the beast of any other mans there arising and lying downe ; to his owne proper use , and the custome held voyd and unreasonable : so the custome in h. . to have so much for every pound-breach is voyd ; but this custome is meerly between the lord and tenant , and the custome hath made that discendable inheritance , and also may have reasonable beginning , and the lord hath benefit for that ; that is , his fine for the admittance of him which is nominated ; and custome hath created other estates , as grant to him and his , is good by the custome , and so the cases of ed. . and ed. . before cyted , for the turning of plough upon the land of his neighbour : so the custome if the lord feed the beasts of his tenant that he may fold them ; and so he concluded that the first custome to make nomination is good ; and to the second custome , he agreed that bare copy-holder for life , could not prescribe to cut and sell all the trees , no more then custome that tenant for life may devise , as h. . but here the tenant hath perpetuity in his estate , and may nominate his successor , and as well as the common law allows tenant after possibility of issue extinct , to make waste ; so may custome allow tenant for life with such nomination , power to cut and sell the trees : also he intended , admitting the custome not good , that yet the copy-holder hath nor forfeited his estate , for the trees and the mannor are granted by severall grants , and for that , though that they are by one selfe same deed , yet by that the trees are severed from the mannor , and the trees are the cause of the forfeiture , and they are no parcell of the mannor , as in edw. . assis . . by sale of a castle the services are extinct . so here the forfeiture cannot accrue to the mannor , when that commeth by reason of trees , which are severed by reason of severall grants ; and he thought that the grant shall be taken more strong , against him which made it ; as if a man in the premises give fee-simple , to have in tayl , the estate tayl shall be precedent , and the fee-simple depending upon that ; so if a man have the next avoydance of a church , and the church becomes voyd . and after he purchase the advowson , yet the presentation remaines as it was before , for that is the best thing , and so it is resolved in herlackendens case , coke . b. that if a man makes a lease for yeares of land , except the trees , and after grants the trees to the lessee , that the trees are not reunited to the land , and so he concluded that it shall be no forfeiture , and prayed judgment for the defendant ; and this case was argued againe , michaelmas , jacobi , by shirley for the plaintiff , that the first custome was voyd , insomuch that he claimed to doe a greater thing then his estate would warrant , as in h. . custome that if one pawne the goods of another , that he which hath them pawned may keep them whosoever they were , is not good , as custome that the tenant in tayle may devise , is voyd , for his estate will not warrant it , and it is prejudice to the tenant in reversion : so custome that copy-holder shall have common , and another custome , that none shall put in his beasts till the lord put in his , . h. . . also there is no fine limited to be tendred by the tenant , or to be demanded by the lord : and if a copy-holder refuse to pay his fine it is a forfeyture , and if the custome do not provide for the fine of the lord as for the copy-holder , the custome shall be void : also here cannot be admittance , for littleton saith , that the sole meanes to transfer copy-hold is by surrender . and here if the custome should be good , the copy-hold should be transferred by nomination only , and so the lord should be defeated of his fine , and it seemes also that the second custome is void , for it is contrary to the estate of a copy-holder , to sell all the trees , but he agreed that he might have estovers for houseboote and hedgboote , as it was adjudged in swayne and becketts case , and he cited the . assis . where a commoner made a lease for life , and void , for that that the estate would not support it , . h. . . and . h. . . prescription to sell estovers is void , for estovers are appropriate to a house : and also it was adjudged in this court between poltocke and powell , that a copy-holder for life cannot prescribe to sell the trees , for it is contrary to his estate , as if a custome be , that if a feoffor die his heire within age , that he shall be in ward , as . h. . and he thought that the nomination was no alteration , for he to whom the nomination is made , hath only an estate for life , when the nomination is made , and that doth not warrant the sale of the trees , and to the third it seemes that the lord of the mannor bargaine and sells the trees , and after lets the mannor to the bargainee for years , and then copy-holder makes wast , he thought that the trees were not severed from the mannor , as in . h. . . dyer . if a man bargaine and sell a mannor , and after in the same deed makes a bargaine and sale of an advowson appendant , this remaines appendant : so if a man bargaine and sell a mannor , and also the trees do not passe till livery be made of the mannor , so if lessee for yeares , gives and grants the land , and makes a letter of attorney to make livery , the tearme passes without livery , and then it is a forfeyture : and here the lessee shall have the benefit of shade and burrough , and the trees themselves during the tearme , as parcell of the land , and then when the copy-holder hath done more then his estate will warrant , this is a forfeyture , and the lessee shall take the advantage of it , and so he praied judgement for the plaintiff : harris for the defendant that the customes are good , but admitting that so , yet the plaintiff shall not take advantage of it , and he argued that custome ought to have two properties ; first reasonable , secondly ought to have time to make that perfect , and then shall be good , as it appears by the examples of littleton , f. . of burrough english and gavelkind , and custome may be against common right , but not against common reason , which is the common law , ed. . . ed. . . and he intended here that the second custome is good , if the first be good , for then it is perpetuall free-hold , and copy-hold estate of inheritance is but an estate at will at the common law , and yet such copy-holder may dispose the trees , as well as custome may create the estate , as well may it give such priviledge , as custome may warrant the taking of toll for passing over the soile of another , assise . and so custome to have the foldage of the beasts which feeds upon his soil is good , but custome for paying the goods of another is not good , for there is not any recompence , but fishing in the sea and to dig the soile adjoyning for landing of his nets is good , for this is for the publick good , ed. . . so the custome for turning upon head-land of another is good , and is for the preservation of tilling , and also it is between lord an tenant , and shall be intended to have a reasonable beginning for consideration , &c. that this continues , for he hath fines and other services , and yet eliz. . dyer . if the lord claim harriot of his tenant , and if it be esloyned , alledge custome , that he may take the beasts that he found upon the land in withernam ; and this was adjudged unreasonable custome , so h. . . custome to have three shillings of a stranger for pound-breach is void , but of a tenant is otherwise , for it shall be intended to be a lawfull beginning , h. . . so here the beginning shal be intended to be lawfull and for valuable consideration , and for this it shall be good ; and to the second custome it follows by consequence to be a good custome , if the first should be good , and then to the third he agreed that copyholder cannot make wast , and if he do it shall be a forefeiture of his estate , as it is said by hull , h. , wast . but this ought to be such wast that is prejudiciall to the inheritance , as it is agreed in herlackendens case , coke , where it is agreed that the bargainee hath severall interests in the land and in the trees , and by the writings , by the making of the lease of the mannor they are not reunited and annexed to the free-hold again , and then the cutting and selling is no prejudice to him in reversion , and so no wast to make forfeiture , and so he concluded and prayed judgment for the defendant and is adjourned , see the beginning , fol. trinity . jacobi . in the common bench. as yet doctor hūfreys case , see hillary . jacobi . in the writ of ravishment of ward , between francis moore esquire plaintiff , against doctor hussey and katharine his wife , robert wakeman clark , and many other defendants , dodridge the kings serjeant argued for the defendant doctor hussey , that a marryed wife is not within the statute of westminster . chapter . by which the writ of ravishment of ward is given , that which before the statute was only trespasse , is by the statute altered in manner and form of proceedings and in penalty of judgment , and he thought that this writ being formed upon the statute doth not extend to a married wife , for by the statute if the defendant , cannot satisfie for the marriage he must abjure the realme , or shall have perpetuall imprisonment , which goes neer to every man next unto his life , the love of his country and liberty , and those the makers of the statute did not intend against a married wife , and he grounded his argument upon these words of the statute , by which it appears that the makers of the statute ; did not intend any person which had no property in any goods nor power to make satisfaction . for first the statute provides , that if he be able to make satisfaction , that then he should satisfy , if not that then he shall abjure the realme , by which it appears that the statute intends those that have property , and by possibility may satisfy , but a woman cannot , for her marriage is a gift of all her goods personall to her husband , see for that fox and girtbrookes case commentaries . secondly , the statute provides new form of proceedings , for if the ward or any of the parties dy hanging the writ , the writ shall not abate , but it shall be revived by resummons , by or against the executors of him that is dead , by this it appears that he which hath no power to make executors , shall not be intended to be within the statute , and a married wife cannot make a will , and by consequence cannot make executors , see coke . a. forse and hemblins case , ed. . devise . h. . . and if the executors have no assets , then the statute gives remedy against the heir . thirdly , the statute intends to give action against him which may have possession of the ward , the which a married wife cannot have , for her possession is to the use of the husband , and by the words of the statute , he against whom the action is given ought to be made fidei possessor , and to the objection , that though that the wife married cannot by any possibility have sufficient to make satisfaction according to the intent of the statute , yet if the husband hath sufficient , he shall answer for his wife , as in ed. . . and h. . a married wife shall be attached by the goods of the husband , he saith that there the reason is , that the wife is answerable by the husband , but this is only to make him to appear , but he against whom the action is given , by this statute ought to have property , and in such cases a married wife shall not be punished , as in the same parliament westminster . chapter . is provided , that if a disseisor faile of record that he shall be imprisoned , in assise , for this is the speedy remedy , but if a married wife pleads a record and failes of that to the jury ; she shall not be imprisoned , though that the assise was brought against the husband and the wife or against the husband , and the wife is received , see . ass . ass . . . as . . h. . also the statute of conjunctim feoffatis , fol. . which was made in the time of the said king ed. . in which time the statute of westminster . was made , and is contemporary with the same statute , by which it is provided , that if any plead joyntenancy , which is found against him in the assise , that he shall be imprisoned by the space of a yeare , and assise . husband pleads joyntenancy with his wife , and maintaines the exception which is found against them , and resolved that the wife should not be imprisoned by this statute , assise . assise a. accordingly , and he said there was not any president nor book of record , by which it appears that a writ of ravishment of ward , was maintained against a marryed wife , for ravishment after the coverture , but for ravishment before the coverture , see and . ed. . and to the objection that the plaintiff hath election if he will have the sufficiency come in question , may but admit the defendants to be sufficient , and then the imprisonment , nor the abjuration shall not be inflicted , as it seems to be some opinion , ed. . . and to that he saith , that the admittance of the parties cannot alter the law , for if it were not the intent of the makers of the statute that this should extend to the wife , the admittance of the parties will not make that extend over the provision of that , also it seems to him that the verdict is not perfect , for that it is not fonnd by whom the vvard was married , but only that he appeared marryed , and it ought to be without the consent of the plaintiff , and for that it might be that he was marryed by the plaintiff , and then there is no cause of action , nor to have the value of the marriage , and it appears by r. . damages , that they ought to inquire by whom he is marryed , and also the value of the marriage , and if it doth not appear whether he be married or not , then the verdict shall be conditionall and the judgment also , and all the presidents are , he appears married without the assent of the plaintiff , and so he concluded , and prayed that the judgment might stand : harris serjeant for the plaintiff prayes judgment , and he supposed that it is in the choyce of the plaintiff what judgment he would have , for he ought to have dammages and the value of the marriage , and it remaines in the discretion of the plaintiff , what judgment he will have ( that is ) upon the statute , for to have the corporall punishment , or allow the defendants to be sufficient , and so to have judgment for the damages , and the value of the marriage , without any imprisonment or abjuration ; as in ed. . . and ed. . . where the question was demanded of the plaintiff , and in rich. . damages . hankford demanded the question , if the jury ought to inquire if the defendants were sufficient or not , and it was resolved that they need not ; and in h. . trinity , rot. . there is a president accordingly , where the husband and the wife were found guilty ; and the action was founded upon the statute , and capias awarded against them both , and to the fayling of the record , it is reason that the wife should not be imprisoned , for the pleas are the pleas of the husband and his acts , and in the h. . and assis . in assise the wife was received , and voucheth a record , and failed , and no judgment upon that against the husband , and the wife was imprisoned ; and so upon allegation of joyntenancy , the wife was imprisoned ; and so he concluded , and prayed judgment for the plaintiff ; and at another day the case was argued againe by montague the kings serjeant for the defendant , that a marryed wife was not within the statute of westminster . chap. . and he sayd , that the true course for understanding the statute , is to consider three things : first the common law before the making of that statute : secondly the mischeife that the statute intended to remedy : thirdly against what persons the statute intended to remedy such mischeifes : and to the first he intended that at the common law , before the making of the statute , the remedy for ravishment of ward , was an action of trespasse , as it appeares by fitz. na. bre. and then it was questioned if the plaintiff should recover the body without dammages , or dammages only without the body . see . ed. . . ed. . . . h. . and then there was no greater punishment , nor other remedy for the taking of the ward , then of other goods , and for the remedy of that , the statute of westminster . chap. . was made , by which it is provided , that if the ravisher restore the ward unmarried , then the plaintiff shall recover only dammages for the ravishment , and not the value of the ward : but if the ward be married , then the guardian shall recover the value of the marriage , and if he shall not satisfie , then he shall abjure the kiugdome , or have perpetuall imprisonment , and the punishments inflicted by the statute , being so penall : then the persons which are within the statute are considerable , for in all penall lawes , the persons and the penallties are the things to be considered , and to the persons this statute saith , that one for anothers fault is not to be punished , and he said , this is referred to dammages , as well as to imprisonment , and it is not a lost case , and the plaintiff without remedy , for action of trespasse lies against the husband at the common law , for , for all trespasses at the common law done by a married wife , the husband shall be punished by payment of the dammages and costs which are recovered : see . h. . and . ed. . but to the statutes which are penall and inflict corporall punishment there otherwise , and as the statute of . eliz. made against recusants for not resorting to church , should forfeit twenty pounds for every moneth ; and resolved that this shall extend to a marryed wife , and for that the husband shall be lyable to action : but by the third of jacobi , there is speciall provision , that the woman shall not be subject to twenty pounds a moneth , but other punishmrnt provided for her ; and he supposed that where a statute gives imprisonment and dammages , and a marryed wife offends the statute , and shall be imprisoned , but the husband shall not pay the damages , as in h. . . upon the statute of westminster , a woman was imprisoned for false appeale , for the death of her husband , who was brought into the court and living ; and in the h. . . it is marvell that the statute of westminster . gives the action to the heire , insomuch that interest appears to the executor : and for that hill saith , that the statute was not made by those which were skilled in the law , but he spake ill , saith the reporter : also the words of the statute , if the ravisher cannot satisfie , he shall abjure the realme , or have perpetuall imprisonment , and the wife cannot , by any possibility ; make satisfaction , for she cannot have any goods ; so as this case is , the statute would make perpetuall separation , either by abjuration or perpetuall imprisonment , if this shall extend to a marryed wife , as in h. . was the question , whether a marryed wife shall be attached for that , and she had no goods , as it is ed. . . the sheriff returnes ( nihil ) against a monk , for that that he had no goods , for all his goods are the goods of the abbot , and it is impossible that a marryed wife should have any goods , and the law doth not compell to impossible things : see ed. . h. . also the statute saith , that if the ravisher dye , hanging the writ , let the law proceed against hi● executors by resummons , and a marryed woman cannot make executors ; and to the like cases , he thought that a marryed wife was not within the statute of offenders in parks , and this gives the same punishment that the statute gives , as it is resolved , assis . so if a marryed wife fayle of a record in assise , she shall not be imprisoned , and the husband is joyned onely for conformity , and for no other cause ; and to the president of h. . which hath been cyted here against the husband and wife , and judgement by default against both , and upon this , capiatur is awarded against them both , but this is onely for the imprisonment but not for the damages ; and also this case differs from that , for here the husband is found not guilty : also it seems that the book of entrys , . . lyes against husband and wife , and there they both plead , but if the wife onely be condemned , the husband shall not pay the damages recovered against her , ed. . . as a lease is made to the husband and wife , the husband makes waste , and an action of waste is brought against them both , and the husband dyes , and the writ abates , for the wrong dyes with him , and the wife shall not be punished ; and so prayed that the judgment might stay , and doctor hussey not punished . hutton serjeant for the plaintiff prayed that the judgment might be entred , and first ●ee considered the common law , and after that the statute , and at the common law hee agreed that a trespasse lyes against the husband and the wife , for ravishment made by the wife , and in this hee should recover damages against the husband and the wife , and the husband shall be charged with the damages , though it be but for words proceeding from her tongue , or any other trespasse , and if the husband make default , his body shall be imprisoned , so that it appears that there was remedy at the common law by action of trespasse , and that the husband was subject to that , then by consequence it was intended , that all persons which were chargeable by the common law shall be chargeable by the statute , and by the action which is formed upon that , and by the common law the husband was chargeable , and by consequence shall be chargeble by the statute ; and he intends that there would be difference between actuall wrongs , and others which are come by omission , and if the vvife be the person which did the wrong , then she shall be punished as well by statute , as she was before by the common law , also she shal be out-lawed , and it hath been agreed that ravishment of ward shall be maintainable against the husband and the wife , if they both are ravishers , and also if the wife be ravisher before marriage , and after takes a husband , the husband shall be charged with the damages , and his body shall be imprisoned , and by consequence shall be abjured , also shee may make an executor by the consent of her husband , but admitting that she could not , then the remedy is given against the heir , and she shall be within this statute as well as other statutes made in the time of the said king , as the statute of westminster . . and shall be a disseisor with force , and shall be imprisoned , whether the husband joyn with her or not , as it is adjudged assise . for all statutes which provide for actuall wrong , a married vvife shall be intended within them , as it is h. . . but the pleading of joyntenancy , there the plea is the act of the husband , and so fayling of record , upon the statute of ed. . as it is assise . for the husband propounds the exception , but if the vvife propounds the exception , then she shall be within the statute and shall be imprisoned , assise : so if a married vvife make actuall disseisin with force she shall be imprisoned , h. . . b. ed. . . ed. damages . h. . ward . and so the president , trinity h. . rot. . in a case between thomas earle of rutland against lawrence savage and his vvife in ravishment of ward , at the nisi prius the defendants make default , and the judgment was , that the husband and the vvife should be taken , and upon that he inferred , that the husband should be subject and charged with the damages , and so it is taken upon the statute of . eliz. that the husband shall be charged with debt for the recusancy of the vvife , and shall be imprisoned for the not payment of it , as to the verdict it seems that this is good , and it shall be intended the vvard was marryed by the defendants , as in ed. . verdict . it is found by verdict , that mulier enters , and resolved that this shall be intended in the life of the bastard , or otherwise it is nothing worth , and in fulwoods case coke , the jury found that the defendant acknowledged himself to be bound , and that shall be intended according to the statute of h. . and so here though that it be not found , that the vvard was married by these defendants , yet it shall be so intended , notwithstanding that nothing is found , but only that he appeared married , and so he concluded and prayed judgment for the plaintiff . this case was sollemnly argued this tearme by all the justices , that is , coke and walmesley , warberton and foster , and upon their selemn arguments , coke and walmesley were of opinion that a married wife is not within the statute , and warberton and foster were of the contrary opinion , and so by reason of their contrariety in opinion , the judgment was staid . trinity . jacobi . in the common bench. burnham against bayne . the case was , a man seised of divers lands , the halfe of them were extended by elegit , and before judgement was had against him , a new elegit awarded , and if all the halfe which remaines , or but the halfe of that which was the fourth part of all should be extended was the question : and it was agreed by all the justices , that but the halfe of that which remaines , and not the halfe of all , which he had at the time of the judgement : but the halfe of that , which he had at the time of the elegit : and if all which remaines be extended , the extent shall be void , by all the justices , see . ed. , execution , . e. . execution . and here the principall case was , a man hath a rent of forty pound , reserved upon a lease for years , and two judgments in debt were had against him at the suit of sir thomas cambell , and three judgments at the suit of the plaintiff , the halfe was first extended by elegit , upon the first judgment had , at the suit of sir thomas cambell , and after upon the judgment had at his suit , the halfe of the residue was extended and after upon the judgment at the suit of the plaintiff all the residue was extended , and all the justices agreed that the extent was void , for they ought to extend but the halfe of that which remaines , and that was but the fourth part . trinity . jacobi , . in the common bench. trobervill against brent . the case was , a man makes a lease for yeares rendring rent , and after grants the reversion for life , to which grant the lessee for years attornes , the grantee acknowledgeth a statute , and after surrenders his estate , the conusee extends the statute and distraines for the rent , and in replevin avowes for the cause aforesaid , and adjudged that the avowry was good . agreed that creditor may sue the executors , and the heir of the debtor also , but he shall have but one execution with satisfaction , see the statute of h. . for such course in the exche quer . note , that no court of equity , may examine any matter of equity , after judgment which was precedent the judgment , see the statute of h. . chapt . . trinity . jacobi . in the common bench. hamond against jethro . the case was this , edward hamond was plaintiff in debt upon a bill against vvilliam jethro , and the bill was made in this manner , memorandum , that i vvilliam jethro do owe and am indebted unto edward hamond in the sum of ten pound , for the payment whereof , i binde my self , &c. in witnesse , and after the ( in witnesse ) it was thus subscribed , memorandum , that the said vvilliam jethro be not compelled to pay the said ten pound untill he recovers thirty pound upon an obligation against a. b. &c. and in the count was no mention made of this subscription ; but this appears when the defendant prayes , hearing of the bill , the which was then entered verbatim of record , and upon that the defendant demurred in law. harris serjeant for the plaintiff agreed , that if it had been in the body of the bill , it ought to have been contained in the count to inable the plaintiff to his action , but that which is after ( in witnesse ) is no parcell of the bill , and for that it need not to be contained in the count , h. . , . a thing which doth not intitle the plaintiff to action , need not to be contained in the count , h. . . if the condition , be indorced or subscribed , it need not to be contained in the count ; but if it be contained before the ( in witnesse ) then it ought to be contained in the count , ed. . . if a man be bound to pay ten pounds when the obligee carries two hundred load of hay to his house , there the condition is precedent , and it ought to be contained in the count , ed. . . accordingly : so here the matter is subsequent to the ( in witnesse ) and there is not any other matter upon which the action is founded , nor contained in the body of the bill , nor to be performed by the obligee , and for that he prayed judgment for the plaintiff . shirley serjeant for the defendant , that the sealing is immediately after the proviso , and is adjoyning to the bill in writing , and for that be it to be performed of the part of the plaintiff or defendant , it ought to be mentioned in the count , for this intitles the plaintiff to his action of the case in h. . . it is a condition subsequent , and there need not to be shewed ; but if the condition be precedent , and contained in the writing before the insealing there , it ought to be mentioned in the count : and in this principall case , this is either a condition precedent or nothing , for it is , that he shall not be compelled to pay the sayd ten pounds untill he had recovered thirty pound , and if he never recover , he never shall pay the ten pound ; and it is a condition of the part of the defendant , and it is adjudged in vssards case , that where a condition is precedent , there it ought to be contained in the count , but where it is subsequent , otherwise it is . so h. . . grant , that when the grantor is promoted to a benefice that he ought to give to the grantee ten pound , this is precedent , but in the principall case it is a condition or covenant : and though that it be subsequent , yet it may stay the suit as well as an acquittance , which is to be an acquittance if he be vexed , otherwise not , but a condition that he shall not sue the bill is void , for it is contrary to that , and barrs him of all the fruit of that , and precedent condition may be placed after the ( in witnesse ) as well as before , so he prayed judgment for the defendant : coke cheife justice said , that this which is after ( in witnesse ) is not part of the deed , but may be a condition or defeasance ; but if it be not ( in witnesse ) in the deed , then it shall be parcell of the bill ; but though that this be put after the ( in witnesse ) yet it shall have his force as defeasance , but it need not to be contained in the count ; for in bonds and personall things , there need not such strict words as in other deeds , and for that this shall be a good condition or defeasance ; but then the defendant ought to have that so pleaded , and not demurr , for this makes the bill conditionall . vvarberton and foster agreed , vvalmesley did not gainsay it , and for that it was adjudged for the plaintiff , if the defendant did not shew cause to the contrary , by such a day , which was not done . note , it was adjudged by all the justices , that fealty gives seisin of all annuall services sufficient to make seisin in avowry , but not in assise , but of accidentall services , this gives seisin in assise , and a man cannot take excessiive distresse for that , for this is more sacred service , as littleton saith of homage , the most honourable : see ed. . . h. . . note , two retaine an attorney , both dye , the executor or administrator of the survivor shall be onely charged , and not the executors of them both , for a personall contract survives of both parties , otherwise of reall contracts , as warranty : see h. . . a. coke , sir william harberts case , ed. . . ed. . . the attorney brought an action of debt against both , and the executors of both the parties which retained him for his fees , and both pleaded joyntly , that they detained nothing , and it was found for the plaintiff , and upon motion in arrest of judgement , the judgement was stayed , insomuch that the executor of the survivor was onely chargeable , notwithstanding the pleading and admission of the parties . note , that it was agreed by all the justices , that by the law of merchants , if two merchants joyne in trade , that of the increase of that , if one dye , the other shall not have the benefit by survivor : see fitzherberts natura brevium , accompt , ed. . and so of two joynt shop-keepers , for they are merchants ; for as coke saith , there are foure sorts of merchants , that is , merchant adventurers , merchants dormants , merchants travelling , and merchants residents , and amongst them all there shall be no benefit by survivor . jus accrescendi inter mercatores locam non habet . note , that arbitrators awarded , that every of the parties should pay onely five shillings for writing the award to the clark , and agreed that the award was voyd to that part , and good for the residue , for they cannot award a thing to be made to a stranger . action upon the case was brought for these words , he is a cozening rogue , and hath cozened richard wood of thirty pound , and goeth about to doe the like by me , and agreed that the action doth not lye : so for rogue or cozener , for it is without aspersion and gentle , and words shall be taken in the gentlest sense . devise that executors shall sell land with the assent of j. s. if j. s. dyes before that he assents , the executors shall not sell ; notwithstanding the death of j. s. was the act of god , and in the life time of j. s. they could not sell without his consent , and so it was agreed in the case concerning salisbury schoole , where the under schoole-master was to be placed by the head schoole-master with the assent of two cheife bailiffs , and it seems the head schoole-master cannot place without their consents . note , it was said to be adjudged that the inhabitants of a town cannot be incorporated , without the consent of the major part of them , and incorporation without their consent is void . in action upon the case , the case was this , the brother of the defendant spoke these words to the plaintiff , that is , thou theif , thou goale whelpe , thou hast stolne a peice of silver from my master hocken ; and the defendant sayd as insued , that is , that which my brother spake is true , i will justifie it , and spend a hundred pounds in proofe thereof ; and it seems to the court , that the action doth not lye against the defendant , insomuch that it doth not appeare by the court , that he had notice of the words which his brother spoke ; but that this ought to be specially averred , and the count contained that the defendant justified the aforesayd scandalous words to be true , as in these english words following , that which my brother , &c. and it seemes that this was not sufficient . michaelmas . . jacobi , in the common bench. sir richard buckley against owen wood. note , it was sayd to be adjudged between these parties , that if a man exhibits a bill in the srarr chamber , which containes diverse slanderous matters , whereof the court hath no jurisdiction ; that an action upon the case lyeth ; so if the plaintiff affirme his bill to be true , action upon the case lyeth upon that , as it was adjudged upon that , as it was adjudged in the same case . michaelmas . jacobi , in the common bench. patrick against lowre . in trespasse the defendant justifies , for that , that he was seised of a house with the appurtenances , and prescribes to have common in the place , &c. for all manner of beasts , levant & couchant upon the sayd house , and good prescription , notwithstanding it doth not containe certaine number , and it shall be intended for so many of the beasts , which may be rising and lying down upon the said house , and if he put in more they may be distrayned , doing damage ; and so is the usage and prescription in all burroughs ; that is , to prescribe to have the common by reason of the house , but the matter upon which nicholls the serjeant which moved it insists was the uncertainty , that is , what shall be sayd rising and lying down upon a house , for he thought beasts could not be rising and lying down upon a house , unlesse that they are upon the top of the house , but to that it was resolved , that infomuch that here the common was claymed to the house , it shall be intended that it was a curtillage belonging to the house , and if it be not ; that ought to be averred of the other party , and then the beasts shall be intended to be rising and lying upon the curtladge , and if it had been alledged , yet it shall be intended so many of the beasts which may be tyed and are usually to be maintained and remaining within the house , for it was agreed that ( rising and lying down ) shall be intended those beasts which are nourished and fed upon the land , and may there live in summer and winter , and also beasts cannot be distrained if they be not rising and lying down upon the land and receiving food there for some reasonable time , but some thought that beasts could not be rising and lying down upon a house without a curtilage . note that it was agreed that all proceedings in inferiour court , after a writ of priviledge delivered out of this court are void ( and before no judge ) and if they award execution , this court will discharge the party of execution . note that a fine was levyed between charles lynne and vvalter long , and the foote of the fine was longle , and it was amended ▪ michaelmas . jacobi . in the common bench. hamond strangis case . the father for a valuable consideration infeoffs his eldest son and heir , and adjudged that this was not within the statute of those , who infeoff their eldest sons , nor a valuable consideration . in avowry , the defendant avowes upon the person of the plaintiff , in a replevin , and the plaintiff traverses the tenure , upon which they are at issue , and at the nisi prius it is found for the plaintiff , and agreed that this was aided by the statute of ieofailes , for this is out of the statute of h. . and as it was at the common law ; or if the defendant avow upon the person of a stranger , the stranger hath no plea , but out of his fee , which was mischeivous , the which was aided by the statute of h. . . for he thought he would have traversed the seisin . the teste of a venire facias was the twelfth of june returnable , tres trinitatis , which was the same day that the teste was , and after verdict it was moved to be amended , and to be made according to the roll , the which was done accordingly , see ed. . for returning of distring as which was amended after verdict , and crompton one of the prothonotaries sayd , that a venire facias bare date in the vacation after the tearm returnable in the tearme before , and it was amended according to the roll , and the principall case was , the roll was upon the entering of the issue , therefore you shall cause to come here twelve good and lawfull men , who neither , &c. within three weeks of michaelmas , and the return of the venire facias was made accordingly . michaelmas . jacobi . in the common bench. john weekes plaintiff , edward bathurst defendant . also in ejectione firme , upon the joyning of the issue , the defendant pleads not guilty , and it was entred , and the aforesaid lessor , likewise , where it should have been , and the aforesaid plaintiff likewise , and it was amended : see this case afterwards here the case was , the defendant pleads , that he is not guilty as the aforesaid weekes , which was the lessor , above against him hath declared , and upon this he puts himself upon the countrey , and the aforesaid weekes likewise , where it should be the aforesaid john likewise , and after verdict upon solemne argument this was amended by coke , warburton , and foster , and foster cited . h. . . . h. . to be directly in the point ; and . ed. . amendment . ed. . amendment . and warburton seemed that first , that is wekes for the aforesaid wekes , &c. is not materiall , and the last shall be amended , insomuch that this doth not alter any matter of substance , coke seemed that this was amendable the same tearme by the common law , if it were before issue , see ed. . h. . which was immediately before the statute of ed. . but in another tearme it was not amendable by the common law , nor the statute of ed. . doth not extend to that , for this doth not extend to a plea roll , ed. . . accordingly , but the statute of h. . extends to any misprision , in the plea roll , or in the record , and makes that amendable , h. . amendment , . and . eliz. dyer , . and the difference is , where there there is an issue that gives power to the justices of nisi prius to try that , then another misprision shall be afterwards amended ; and he said that it was adjudged between sir william read & lezure in the exchequer , that a commission of these words ( and the aforesayd plaintiff likewise ) shall not be amended , but in the principall case here , they all agreed that it shall be amended , and it was amended accordingly . michaelmas . . jacobi , in the common bench. prowse against worthinge . leonard loves case . in an ejectione firme , speciall verdict , the case was this , leonard loves the grand-father , was seised of a mannor held in cheife , and of other mannors and lands held of a common person in socage , and had issue foure sonns , thomas , william , humphrey , & richard . and by his deed eliz. covenants to convey these mannors and lands to the use of himself for his life , without impeachment of wast , and after his desease to the use of such farmors and tenants , and for such estates as shall be contained in such grants as he shall make them , and after that to the use of his last will , and after that to the use of vvilliam his second sonn in tayle , the remainder to humphrey his third son in tayle , the remainder to richard the fourth sonn in tayle , the remainder to his own right heires , with power of revocation , and after makes a feoflment according to the covenant , and after that purchases eight other acres held of another common person in socage , and after makes revocation of the said estates of some of the mannors and lands which were not held by knights service , and after that makes his will , and devises the land that he had purchased as before , and all the other land whereof he had made the revocation to thomas his eldest son , & the heirs males of his body for . years , provided that if he alien , and dye without issue , that then it shall remaine to william his second sonne in tayle , with the like proviso as before , and after dyed ; and the jury found , that the lands whereof no revocation is made , exceeds two parts of all his lands , thomas the eldest sonne enters the . acres , purchased as before , and dyes without issue male , having issue a daughter , of whom this defendant claimes these eight acres , and the plaintiff claims them by william the second son. and dodridge the kings serjeant argued for the plaintiff , intending that the sole question is for the . acres purchased ; and if the devise of that be good or not by the statute of . h. . and to that the point is only , a man which hath lands held in cheife by knights service , and other lands held of a common person in socage , conveys by act executed in his life time , more then two parts , and after purchases other lands , and devises those , if the devise be good or not . and it seems to him that the devise is good , and he saith , that it hath been adjudged in the selfe same case , and between the same parties ; and this judgment hath been affirmed by writ of error , and the devise to thomas , and the heirs males of his body for . years , was a good estate tayle , and for that he would not dispute it against these two judgments . but to the other question hee intended that the devise was good , and that the devisor was not well able to doe it by the statute of . h. . and hee intended that the statute authoriseth two things . . to execute estates in the life time of the party for advancement of his wife or children , or payment of his debts , and for that see . eliz. dyer , and that may be done also by the common law , before the making of this statute . but this statute restrains to two parts , and for the third part makes the conveyance voyd as touching the lord : but the statute enables to dispose by will a parts , where he cannot dispose any part by the common law , if it be not by special custome , but the use only was deviseable by the common law , & this was altered into possession by the statute of h. . and then cometh the statute of . and . h. . and enables to devise the land which he had at the time of the devise , or which he purchased afterwards , for a third part of this land should remain which hee had at the time of the devise made ; and if a third part of the land did not remain at the time of the devise made , sufficient should be taken out of that ; but if the devisor purchase other lands after , hee may those wholly dispose : and for that it was adjudged , trin. . eliz. between ive and stacye , that a man cannot convey two parts of his lands by act executed in his life time , and devise the third part , or any part so held by knights service ; and also he relyed upon the words of the statute , that is , having lands held by knights service , that this shall be intended at the time of the devise , as it was resolved in butler & bakers case ; that is , that the statute implies two things that is property , and time of property , which ought to be at the time of the devise . but here at the time of the devise , the devisor was not having of lands held by knights service , for of those he was only tenant for life , and the having intended by the statute ought to be reall enjoying , and perfect having , by taking , and not by retaining , though that in carrs case , cited in butler and bakers case , rent extinct be sufficient to make wardship , yet this is no sufficient having to make a devise void for any part . also if the statute extend to all lands , to be after purchased , the party shall never be in quiet , and for that the statute doth not intend lands which shall be purchased afterwards ; for the statute is having , which is in the present tence , and not which he shall have , which is in the future tence ; and . and p. and m. . dyer . a man seised of socage lands , assures that to his wife in joynture , and . years after purchases lands held in cheife by knights service , and devises two parts of that , and agreed that the queen shall not have any part of the land conveyed for joynture , for this was conveyed before the purchase of the other , which agrees with the principall case , and though to the question , what had the devisor ; it was having of lands held in capite , insomuch that he had fee-simple expectant upon all the estates tayl ; he intended that this is no having within the statute , but that the statute intend such having , of which profit ariseth , and out of which the k. or other lord may be answered , by the receipt of the profits , which cannot be by him which hath fee-simple expectant upon an estate tayle , of which no rent is reserved : and also the estate tayle by intendment shall have continuance till the end of the world : and . edw . . b. in rationabili parte bonorum , it was pleaded , that the plaintiff had reversion discended from his father , and so hath received advancement . and it seems that was no plea , in so much that the reversion depends upon an estate tayle , and upon which no rent was reserved , and so no advancement . so of a conveyance within this statute , ought such advancement to the youngest sonne , which continues , as it is agreed in binghams case , coke , that if a man convey lands to his youngest sonne , and he convey that over to a stranger in the life time of his father for good consideration , and after the father dies , this is now out of the statute ; for the advancement ought to be continuing until the death of the father : and so he saith also it was adjudged in butler and bakers case ; that if a man devise socage lands , and after sell to a stranger for good consideration , his lands held by knights service , this devise is now good for all , for hee hath not any land held by knights service at the time of his death , and so he concluded that the devise was good , and prayed judgement for the plaintiff . houghton serjeant for the defendant , he thought the contrary , and hee argued that before the statutes of . and . of h. . men were disabled to devise any land , and for that they cannot provide for their wives , children , or for payment of their debts , and for remedy to that , feoffments to uses were invented , and then to dispose the use by their wills : and then experience finds that to be inconvenient , and then the statute of . h. . transfers the use into possession , and then neither use nor land was deviseable without speciall custome , and then this was found to be mischeivous , after five years experience , and then was the statute of . h. . made , and where by the statute of marlebridg , of those which did enfeoff their begotten sons , a feoffment by the father to his son and heir was void for all . now by this statute this is good for . parts , and void only for the d part , & that for the good of the lord ; but as to the party that is good for all , as it is agreed in mightes case , coke . then to consider in the case here , if all things concur that the statute requires ; and to that here is a person which was actually seised of land held by knights service in . eliz. so that it is a person which then was having within the statute . . if here be such conveyance for advancement of his children , as is intended within the statute ; and to that he seemed that so , notwithstanding that it may be objected , that here is no execution to the youngest children , insomuch that it is first limited to such farmers and tenants , &c. but he intended that this is no impediment . secondly , also there is a limitation to the use of his last will. thirdly , also there is a limitation to the use of such persons to whom he devises any estate by his will. but these are no impediments , for the last is no other but a devise to himselfe and his heirs , and there is not any other person knowne , but meerely contingent , and it is not like to a remainder limited to the right heirs of i. s. for there the remainder is in abeiance , but here it is only in contingency , and nothing executed in interest , till the contingency happen , and the not having of a son at the time shall not make difference , as in . edw. . . in formedon in remainder , where the gift was in one for life , the remainder to another in tayle , remainder in fee to another stranger ; and he in remainder in tayle dyes without issue in the life time of the tenant for life , he in remainder in fee may have formedon in remainder without mentioning the remainder in tayle . but here he intends that the devise shall be void in respect of the lands first conveyed , which were held in cheife by knight service ; for the words of the statute are by act executed , either by devise , or by any of them , and they are conjoyned : and it is not of necessity that the time of the conveyance shall be respected , but the time of the value . and notwithstanding that the testator doth not mention any time ; but in so much as the provision of the statute is to save primor , seisin , and livery to the king , as if the man had l. by year in socage , and one acre in cheife , and makes a conveyance of all that , it shall be void first to the livery , and pri●or seisin to the third part : so if he make conveyance of the l. by yeare , and leave the said acre held in cheife to discend , and after that purchase other lands to the value of the third part of all the conveyance of the l. land , notwithstanding which , for the advancement of his wife , children , or payment of his debts , for he had a full third part at the time of his death , which discended . and he supposed that the having of a dry reversion depending upon the estate tall , is sufficient , having within the words and letter of the statute , and yet he agreed the ease put in butler and bakers case ; that if a man devise his socage lands , and after alien his lands held in cheife by knight service to a stranger , bonafide , this is good . so if he had made a reservation of his lands held in chiefe to himselfe for his life , in so much that his estate in that ended with his life , and hee remembred the case cyted in bret and case , comment . that if a man devise a mannor in which he hath nothing , and after hee purchaseth it , and dyes , the devise is good , if it be by expresse name . but when a man hath disposed of two parts of his land , the statute doth not inable him to devise the residue ; but he hath done all , and executed all the authority which the statute hath given to him . but he agreed also , that the reversion is not such a thing of value , which might make the third part discend to the heir ; but it is uncertaine , as a hundred , and the other things of uncertain value contained in butler and bakers case . and also he intended , that the remainder could not take effect , insomuch that the condition is precedent , and it is not found that the eldest sonne hath aliened , and then dead without heir male , and so he concluded , and prayed judgment for the defendant . in replevin the defendant avows for s. rent , the plaintiff pleads a deed of feoffment of the same land made before the statute of ( quia emptores terrarum ) by which s. d. is only reserved , and demands judgment , if he shall be received to demand more then is reserved by the deed ; see ed. . avowry , . . h. . . ed. . . edw. . lung , ed. . h. . . this deed was without date , and it was averred that it was made before the statute of ( quia emptores terrarum ) which was made in the . of edw. . and also it ought to be averred to be made after the beginning of the reign of richard . for a writing after the beginning of his reign checks prescription . but if a man hath a thing by grant before that , he may claim by prescription , for hee cannot plead the grant , insomuch it is before time of memory , and a jury cannot take notice of that , and for that the pleading before with the said averments was good . if debt be due by obligation , and another debt be due by the same debtor to the same debtee of equall summe , and the debtor pay one sum generally , this shall be intended payment upon the obligation . earl of cumberland and hilton in an action of accompt , the ( venire facias ) was returned by the coroners ; ( the execution of this writ doth appeare in a certaine pannell fixed to this writ ) and the pannell and names of the jurors between the earl of cumberland , plaintiff , and thomas hilton defendant , in a plea of debt , where it ought to be in a plea of accompt , and yet after verdict day was given to the coroners , to amend their return , which was done accordingly . michaelmass , . . jacobi , in the common bench. ferdmando cross , informer , against westwood . in information upon the statute of . ed. . chap. . exhibited by crosse against westwood , for that the defendant had bought in gross , and gotten into his hands by buying , and not by lease , . quarters of wheat meale , price of every quarter . shillings , to the intent to put that in water , and after of that being dryed again , then of that to make starch , against the form of the said statute , and so demanded fourscore pounds for the king and himselfe , according to the statute ; and upon this the defendant demurred in law , upon the information this case came in question : and it was argued by nicholls serjeant for the defendant , that there was not any law against ingrossers known , what was ingrossing before the making of this statute , which declares and describes who shall be an ingrosser : then he considered , if the ingrosser described in the information , be such an ingrosser which is intended by the statute , and he seemed that no , for he said , the ingrosser contained in the information , is not one which bought corn growing in the field , nor corn , nor dead victualls , which are the words contained in the statute ; but he is charged for buying of wheat meal , and it seems that that is not within the words of the statute . also ingrosser intended within the statute , ought to buy that , to sell the same againe , and so is not the ingrosser in the information charged , and if he be not within the words , he shall not be within the punishment ; for it is a penall law , and shall not be taken by equity , and so much the more , because it inflicts corporall punishment upon the offender . and then to consider the words of the statute , he supposed that wheat meale is not within the words , corn growing , nor corn ; but the question is , if it be within the words , dead victuals : and to that he said , that it hath been adjudged , that a costermonger which buyes apples to sell againe , is not within the words ( dead victualls ) and he said , that flower and meale are things of which victualls are made , and not victuals themselves . but there ought to be another thing done to them by the industry of man to make them victuals ; as if a baker buy wheat , and make that into bread , this is out of the provision of the law , and not aided by the proviso , which provides for fish-monger , poulter , and butcher , which buyes such things which concern their faculty , crafte , or mystery , if it be not by fore-stalling , but this doth not extend to all crafts . but hee supposed that when the nature is altered , that is out of the purviewe , and is another thing , and shall not be ●eplevied , notwithstanding that replevin lyeth of sow and piggs , where the sow only was imparked , but not of leather made in shoos . also he seemed that the defendant is not charged that he had an intent to sell the same again : and if a man buy corne for the provision of his house , this is out of the statute , notwithstanding that it be by ingrossing . and so if a man buy barley , and make that into malt , and sell it again in malt : or if a man buy oates , and convert that into oatmeale , or other flower , and then sell it again , this is out of the statute : and if so it be , then upon this he inferred , that this is not so much as if he had sold that afterwards , when he had altered it in nature , as in making of wheat-meale into starch ; for in the cases before cyted , things bought are of another nature : so if a man hath many farms or grounds sowed with corn , and he sells them to another , this is no fore-stalling within the statute , if it be not driving to market : and he saith , that regrater is defyned by the statute , to be him which buyes in one market , and sells that in another market within four miles , and he is an ingrosser , and regrater also : so if a man buy wheat , and makes cakes of that , this is out of the statute : or if a merchant buy corn beyond sea , and sell that here , this is is out of the statute , for it ought to be bought and sold also within the realm ; so if corn reserved for rent be sold again , this is out of the statute , and so concluded ; first , that the buying of wheat-meale is not buying of corn growing , corn , nor dead victuals , and the sale of that in starch , is not the sale of the same thing again , and prayed judgment for the defendant . dodridge serjeant of the king , for the king , and the informer supposed the contrary , and to him it seemed , that there are three things considerable , upon the statute : that is , the scope , the letter , and the offence , and to the offence , he intended that it is the offence which is contained in the information which is provided to be punished by the statute , and he said that the offence is confessed by the demurrer : and he said there were divers good lawes against ingrossers before the making of this statute : but it was not defined who was an ingrosser , and this was the evasion that such malefactors escaped without punishment . and he said , there are three notable enemies to the common wealth , first forestallers , secondly regraters , thirdly ingrossers : and forestaller is he which prevents the sale in open markett , ingrosser is he which ingrosseth in his hands , and regrater is he which sells againe , and he which will be an ingrosser , will be a forestaller also , and so of the contrary , and these offences make dearth , and for that their gaine is called a ( wicked gaine : ) see the statute of . ed. . rastall forestallers . and they are basely to be esteemed , which marchandise of marchants , because they cannot gaine unlesse at least they lye : and this statute hath given a livery to those malefactors by which they may be knowne , for he hath them discribed and defined , and this is the scope of the statute ; thirdly he considered the letter , and for the better intelligence of that he consi ered the body and proviso of the statute , and tie himselfe to an ingrosser , and would not meddle with the other offences contained in the statute , the words of which are , whatsoever person or persons shall ingrosse or get into his or their hands by buying , &c. ( other then by lease , &c. ) and corne growing in the feilds , or any other corne or graine , &c. or other dead victualls whatsoever , shall be accepted , reputed , and taken an unlawfull ingrosser , &c. and it hath been objected that it is a penall statute , and for that shall not be taken by equity , and also is declaratory , and for reason also shall be taken strictly : but he supposed , that admitting that the offender contained in the information be out of the letter of the statute , that yet he shall be within the equity , and that the statute shall be taken by equity , but he intended first , what was within the letter of the statute , for wheat made into meale is wheat , and barley made into malt is barley , and so it is contained in the information , that is , that he hath bought wheat made into meal , and allowing that corn is victuall , then a fortiori , meal is dead victuall , for it is a degree neerer to the use of man and to sustenance● ; and by the same reason that it is not victuall , insomuch that another thing ought to be made to it , before it may be used , by the same reason flesh shall be no victuall , for that ought to be boyled or rosted , which is another thing also before it can be used : and he said that meal is the staffe of sustenance , and of all dearths , the dearth of meale and corne is the most greatest , and he which wants bread , wants all other victualls , for all others without this breedes diseases , and for that corne is the victuall of victualls , and so he supposed this remaines corne , and admitting that not yet it is within the words ( dead victualls ) also he intendes that the statute shall be taken by equity , notwithstanding it be penall , insomuch that it is for publicke good , as the statute of . ed. . of petty treason , containes the master only : and yet if a servant kills his mistris , that shall betaken within the statute : and so if the servant kills his master after that he is departed out of his service , upon malice conceived during the time that he was in his service , this shall be also within the statute , and yet is not within the words of the statute , and so of the statutes of . and . eliz. of fraud upon taking by equity , and yet all these statutes are penall : but insomuch that they are made for the publicke good , and for punishment of offences which tend to the contrary , they shall be out of the generall rule ; but he intended that the same thing which was bought was sold againe , for it is confessed by the information , that he hath sold meale , and it was not the thing that was first bought , and if it were sustenance before that the water was put to it , the putting of water to it doth not make alteration , and is contained in the information , that the defendant sold the same meale that he had bought by the name of starch , and this is confessed by the demurrer , and by that if meale be victuall , then he hath sold meale victuall by the name of starch , and to the objection , that it is not the same thing , insomuch that the replevin doth not lie , for the meale after that is made in starch , he saith replevin doth not lie for the corne it selfe if it be not in bags , and if the meale were in bags , notwithstanding that water were put to it , yet replevin lies , and it is reason that this shall have a large and beneficiall construction , insomuch as it apperes by the preamble , that this is made against the catterpillers of the common wealth : and to the objection that the statute is declaratory , and for that it shall not be taken by equity , if this rule shall be observed , then all the questions in the court of wards , and in butler and bakers case . coke they have been in vaine . and yet it appeares that equity was there taken for equity . but in these cases the exposition may be besides , but not contrary to the words , and also he intended that the proviso expounds the body of the statute , and by the proviso it appeares , that the buying of barley and converting it into malt , and the sale of that afterwards , and the buying of oates and the converting of that into oate-meale , and the sale of that afterwards should be within the statute , if it had not been excepted by the proviso ; and yet there is an alteration of the thing which is bought : and if a man buy barley by forestalling , and make that in malt , and then sell that againe , this is within the statute , and there is no difference betwixt this case and malt , for the barley is put into water and dryed againe , and so it is here , the meale is put in water and dryed againe , and yet that is within the statute : and the manner and nature of offence , every one which hath a houshold and family knowes , for the finest wheate meale makes sustenance for the master of the family , and the other makes severall sorts for the residue of the family , and the brann makes bread for horses ; so that the vertue of that is , that it feeds both man and beast , and all this is prevented by making that new devised vanity , and the quantity of wheat which is imployed is incredible , and may feed many , and if the makers of that have gained the name of an occupation , this is worse , for this furthers vanity , and takes away the sustenance of many , and inhanceth the price of wheate , and is so new aninvention that there is not a latine word for it , and so he concluded that he is an offender , and within the scope of the letter of the law , and that the preamble and proviso hath been so expounded , and that as to meane occupations , as tanners and such like which bought hydes and sold them again , and he said that they did them further for the use of man , and made that more apt and fit for use , and without that a man could not use them , but in this case the starch-makers further the abuse , and prayed judgment for the king , and for the informer . and at another day this case was argued again by haughton for the defendant , that the statute is penall for forfeyture of goods , as for coporall punishment , and for that it shall not be taken by equity , nor by interpretation , but strictly according to the letter , as in reniger and fogassas case , commentaries . by pollard , it is a principall in law , that a penall statute shall not be taken by equity , as in the statute of westminster . chapter . gives an attaint in reall action , and notwithstanding that perjury be an offence against both the tables , and in attaint it is of necessity that it be perjury in the petty jury , and yet this doth not extend to personall actions , ed. . . ed. . . ed. . . gives attaint as well for damages excessive , as for the principall , and this shall be taken strictly , also as it is sayd by fineva , h. . . a. and in h. . . generall penall statuts shall be limited to certaine times as the statute of westminster . chapt . . which gives power to auditors which finde accountants in arrerages , to commit them to prison , but it ought not to be forthwith , and this for the favour of the defendants , and this is the reason also of the judgment in fogassas case by the statute of agreements , that every agreement shall be taken within the statute , and so the statute of h. . provides that the sheriff shall not let out his county , and h. . . it is agreed that the letting out of a hundred is not within the statute , and it is also agreed in partridges case , com. . that the statute of h. . of buying of tithes , shall not be taken by equity , and the reason is there given , insomuch that it is a penall law , and if it be so that the statute shall not be taken by equity he considered if it be within the words , and to that he intended that it is not corne which is bought , for it is changed into another thing , and also it is not dead victuall , for it is not victuall till another thing is made of it , also the same thing that was bought ought to be sold again , or otherwise it shall not be within the words of the statute , and by consequence out of the penalty , as if a man buy corn , and make that into meale , bread , or puddings , this is not within the statute , so the buying of apples and selling of them again , it is no victualls within the statute , so butcher which buyes cattell , and those kill and sells again is not within the statute , and he sayes that starch is good food when it is dry again , which proves that this is another thing then the meale which was bought , and so out of the letter of the statute , and to the proviso which excepts barley that is bought and made in malt , and oates , made in oate-meale and sold again , it seems that this is an idle proviso and surplusage , as in porters case , coke . . in the statute of h. . proviso to except good uses out of the statute , inables men to devise to such uses , and so the statute of ed. . chapter . the body of which extends only to offices , covenant , administration of justice , or the revenue of the king , as receiver , controller , &c. and yet a keeper of a park is excepted out of this , more for the satisfaction of the ignorant burgesses then for any necessity , and so he concluded and prayed judgment for the defendant . montague serjeant of the king , for the king and for the informer argued to the contrary , that as to the objection that costermongers are not within the statute , he sayth , that that is a thing of delicacy , and not victualls within the statute , but he sayth it was adjudged in the exchequer , that the buying of meale and the selling of that again was within this statute , and in this case the information is that the defendant had bought meale and sold the same again by the name of starch , which is confessed by the demurrer , and for the exposition of the statute , he considered the mischeife before the making of that , the remedy which is provided by the statute , and the office of a good judge , that is to advance the remedy and suppresse the mischeife , and he intended that this was punishable by the common law in another forme , as waste , notwithstanding as action doth not ly , yet prohibition lyes at the common law , and by the statute of ed. . justices in oyre , ought to inquire of all greivances and oppressions to the people , and there cannot be greater greivance or oppression then that is which deprives them of their food , and for that , he is called the oppresser of the poore , and fleta calls him woolfe which ought to be hunted from place to place , and assise . was punished by fine and ransome , and yet then the offence was uncertain , but now it is made certain by defining it by this statute , so that this is a statute of definition only , and the statute of . ed. . inf●icts the punishment , and to the objection , that it is not the same thing which is sold , which was bought , he said it is the same in intent , for it produceth the same mischeife . secondly , it is the same substance , and the same forme , that is the formall substance which gives the being , but not an accedentall forme , and he saith , that if a man have corne , and another by wrong takes it from him , and doth convert it into meale , he may take that back again ; otherwise of iron made into an anvill , but trees made into timber , and plate altered in fashion , may be taken back again , otherwise if it be converted into coyne , and so upon the statute of h. . if a servant sells the goods of his master , and steal the money , that is out of the statute , but if the servant carry corne to the mill , and this is converted into meale , and then the servant steales it , this is within the statute , for this is the same thing , h. . a man pleads ( he appearing seised to the same use ) it shall not be intended the same , but such uses , and browning and beestons case in the com. a man is bound to pay twenty pound at michaelmas , and also afterwards to pay twenty pound at the same feast , and that was intended the same feast in another year , and not in the same year , so that the word ( same ) shall not be so precisely taken , but as patent of the king for making of a thing , of which a man hath made new invention is good , if it be limited for certain time only , as hastings hath a patent for making of frisado only , as a thing newly invented by him , but insomuch that this varyes only in the form of making of that , and not in substance , the patent was adjudged voyd , so a patent made to a cutler for gilding , insomuch that this varies only in forme , this was not allowed to be a new invention , so a patent made to johnson for new casting of lead , insomuch that that varies only in forme , and not in substance , this agreed with the ancient , this was also void , and if the starch made be another thing then the meale which was bought , then it ought to be another in nature and quality , but this is not , for starch is used for victuall in spayne and other countries , as ryce is used , see assise . . and he intended that the proviso made that cleer and without question , for there cannot be a difference made between that and malt , and if malt had not been within the body of the act , this would not be exempted by speciall proviso , and so the statute of h. . chapter . for transportation of victuall in ireland , except meale , which proves also that meale is included within the words , dead victualls , and which hath been within the body of the statute if it had not been excepted , and to the objection that it is penal law , and for that shall have strict opposition , and not by equity , but he saith that this rule failes as to the interest of the common-wealth , that is , when the common-wealth is intervenient ; and to the objection that this is a thing invented after the making of the statute , he answered that , with the case of saint-john , coke . b. which inhibits hand-guns , and it is there adjudged that dags and stone-bowes , which are of later invention shall be within the statute for they are their invention , and their form of the things which are inhibited , and so vernons case , coke , if he to whose use infeoffs his son and heir , this shall be taken within the statute of marlebridge , and yet he to whose use cannot make a feoffment , nor uses were not known till many yeares after the making of this statute , and baker furthers the meale for the use of man , and for that he may sell it in bread without any punishment , and then he sayd it was the office of a good judge to suppresse the mischeife , and to advance the remedy as the lord anderson sayth in brownes case , . coke : and so he concluded and prayed judgment for the king and the informer . and note that this case was solemnly argued by all the justices of this court , and it was adjudged , that this was ingrossing within the statute by warburton , foster , and winch. but the lord coke agrued the contrary , walmesley being absent that tearme . the same question was argued the same tearme in the exchequer upon an information there exhibited by one collins an informer , and it was there argued by hitchcocke of lincolnes inne for the defendant , and he argued that the starch was not the same thing which was bought , no more then if it had been made in bread , and he cyted the booke of h. . . . where it is agreed that if a man takes barley and makes malt of that , that he from whom it was taken , could not take the malt , for that , that there the thing is altered in another nature , and he intended that the starch is not the same in number nor quality , but he agreed , that if wheat be only grownd , that this notwithstanding is within the statute , but if it be made into bread , then sold , it is not within the statute , for then it is another body , and other things added to it , and the forme is also altered , and the forme gives the being and the name , and if water be turned into wine , it is no water , though it be by miracle ; so if a parson be made bishop , he is not the same person , for honours change manners , and this is his reason that the writ shall abate , for it is newly created , as of nothing , h. . . r. . bre. . b. r. . . also the statute of h. . which provides that the party from whom any goods are stolne , after that the felon is indicted , shall have restitution of the same goods , but if corn be stolne , and converted into meale , the owner shall not have restitution , for it is not the same which was stolne , but if plate be stolne and altered in other forme , yet the owner shall have restitution of that as he sayd , which was adjudged for the king , . eliz. but where restitution upon a writ of errour , where the judgment is the same thing shall be restored , that if yet tearm be sold by fieri facias , and after the judgment is reversed by errour , he shall not be restored to the tearm but shall have the money for which it is sold , also he saith it is not the same in number and substance , for the thing was corrupt , and the corruption of that was the beginning of the new , and the wheate is the matter of which , and also water is , and fire and the heat of the sun , and after that it is made in starch , it will not be dissolved and made into victuall , no more then bread , and the worst wheat will make the best starch , also he intended , that it is not in the same condition nor similitude , also he objected that ( ligamen ) which is the word contained in the count , is no latine word at all , but ( legumen ) is the latine word , and that is latine for pulse , and that not being any latine word , the english which is added will not help it , and so he concluded and prayed judgment for the defendant . dodridge the kings serjeant for the king and for the informer , argued that the starch is the same ( numero ) in number , quality , and substance , not in likenesse , and that the statute , is no law of explanation but of difinition of three severalls , which make dearth without want , and the fore-stalling prevented the punishment of law before the making of this statute ; but now these are in severall degrees , that is forestalling is commonly ingrossing and regrating , and ingrosser is alwayes regrator , and that the defendant in this case is ingrosser of victualls , that is victualls which is the staffe of mans health , and the want of that is more greivous then the want of all other things , and the dearth of that is the most pinching dearth which may be , and the gain of that is a base gain , and they which basely buy of merchants that they may straightways sell not any thing unless they may get great gains or save in the measure , & they are called regrators , as grators of the faces of the people , and if this statute had been executed , this had prevented many dearths , and to the objection , that it is a penall law , and for that shall be taken strictly , and there is a generall rule , and as true as it is generall , but it is true if it be not within the exception , that is , if publick good doth not intervene , and here it concerns the common-vvealth , as much as the lives of men , and many other penall statutes have been taken by equity , as the statute which makes that to be petty treason if the servant kill his master , and in the h. . it is agreed that if the servant after he is departed out of the service of his master kill him upon any malice conceived during the time that he was in his service , this shall be taken within the equity of the statute , and so the statute of h. . was made precisely , against hand-guns and daggs , are taken to be within the equity of that , notwithstanding that they were invented after the making of that statute , and were not known at the time of the making of that , for they are the same in intention , as it is resolved in streches case , in coke . b. and to the words of the statute ( who shall sell the same ) it intends that starch is the same in all , but only in similitude ; for a thing which is of the same similitude is not the same , but like the same ( for no like is the same . ) also he intended that it is the same both in number and form , and he agreed ( that forme gave the being ) for that is not the accidentall as here it is , but it is the substantiall forme , and every one knows that meale of wheat , is the same as pepper beaten in a morter , and pepper and all other spices , so that it is the same in number , existence , substance , and essence , and he intended also the same in intention , for meale is victuall , and is dead victuall , be it corne or meale ; and corn grownd , and made in meale , then sold , yet that remains dead victuall , and meale is the same dead victuall , though that it be not the same corne ; and to prove that corn is victuall , he cyted the statute of edw. . . stat. chap. . which provides that no forester shall make any gathering of victuals by colour of their office ; and hee intended , that corne was within this statute , and so also of the statute of the . p. and m. chap. . rastal , universities which provides , that to the purveyor , bargainor for any victuals within miles of any of the universities of oxford or cambridg , where grain and victuall are joyned together . so the statute of h. . chap. . abridged by rastall , victual , . which inhibits the transportation of victuall , if it be not of meal and butter into ireland , by which it appears that meale is dead victualls : and he said , that victuals is that which refresheth men , and victualls are those things , which to the use of eating and drinking are necessary . so that meale is the same in number , though that the corne were turned into meale . and he cyted peacock and reynolds ca●e to be adjudged eliz. that if a man buy corne , and convert that into meale , and so sell it , it is within this statute : and hee said , that if a man be made a knight , hanging his action , that this shall abate his action , but yet he remains the same person , but his name is changed , which is the cause of the abatement of his action , h. . . also the defendant is concluded by his demurrer upon the information , to say that it is not the same thing , for this is confessed by the demurrer ; and though that the name be changed , this is not materiall , if the substance be the same ; and he agreed , that a baker which buys wheat , and makes it into bread , is not within the statute , for he furthers that to the use of man , as a curryer makes the leather more fit and apt for use ; but so doth not he which makes it into starch , for he furthers the abuse ; for it is no lawfull occupation , but idle and fri●olous furtherance of vanity of men . and in . h. . . if a man enter into the land of another man , and cut trees , and that square , and make into boards , yet if the owner enter , hee may take them : but if it be made into a house , otherwise it is , for there it is mingled with other things , as it is h. . , . so iron made in anvill : but of leather made in shooes otherwise it is , insomuch that it is mingled with other things , h. . . a. a dead stag is not a stag , but is a certain dead thing , and flesh . as a man dead is not a man ; but agreed the book of h. . . and . that corne converted into meale cannot be restored , nor reprized , no more may that if it remains in corne , if it be not in baggs ; and hee said , that upon the statute of merton , the re-disseisin after the recovery in assise , if the same disseisor makes re-disseisin , the sheriffe may examine that , &c. and it is agreed in h. . that if tenant in tayle be disseised , and recover in assise , and is put in possession , and after his estate is altered , and he become tenant in tayle after possibility of issue extinct , and then the disseisor makes re-disseisin , that this is aided by the statute , not that it is alteration of the estate : and also he saith , it appears more fully by the proviso , by which it is provided , that barley turned into malt , and oates turned into oatmeale , if it be by ingrossing , it is within the purview of the statute . so if it be by way of fore-stalling ; or if they sell them again before that they are converted , shall be regrators ; and to the objection , that other things ; that is , water and fire are added to that , he saith that none of them remains ; for the fire dryes the water , and the fire also goeth out , and so he concluded and prayed judgment for the king , and the informer , and it was adjourned . michaelmass , . . jacobi , in the common bench. in dower against infant which makes default upon the grand cape returned , and agreed by all the justices , that judgment shall be given upon the default , for the infant shall not have his age , and so it was adjudge upon a writ of error . charnock against currey , administrator of allen. in debt upon an obligation against the defendant , as administrator as above , he pleads judgment had against him in an action of debt , and over that hath not to satisfie , to which the plaintiff replies , that this judgment was for penalty , and the condition was for a lesser sum ; and that the plaintiff in the first action had accepted his due debt , and had promised to acknowledg satisfaction of the judgement at the request of the defendant , and at his charges : and the administrator which was the defendant , did not make request upon fraud and covin , to avoid the plaintiffs action : upon which the defendant hath demurred , and so confesseth the matter of the plea. but foster seemed that the plaintiff ought to aver , that the plaintiff in the first action hath offered to acknowledg satisfaction , and that otherwise he should be put to his action upon the case ; but coke and warberton intended that the replication is very good without such averment ; for it shall be intended , that the plaintif will perform his promise : but further , this demurrer which was only for part , was also for another part , an issue joyned for the other part , which was to be tryed by the country ; and which shall be tryed of the issue , or of the demurrer , was the question ; and it was agreed by them all , that the issue , or demurrer shall be first at the discretion of the court , see h. . . . ed. . commission is granted to the councel in wales , of which the president , vice-president , or cheife justice to be one ; and the question was , if they might make a deputy , and it was agreed that a delegate power could not be delegated , but they might make an officer to take an accompt in any such act . note that a caveat was entred with a bishop , that he should not admit any without giving notice , that the admission , this notwithstanding is good ; but if he admit one which hath no right , he is a disturber , but otherwise the caveat doth nothing , but only to make the bishop carefull what person he admits . foster justice seemed , that if the ordinary now after the statute of h. . grants administration to one which is next of blood , that he cannot repeale it ; but coke cheife justice seemed the contrary , and that he incurred the penalty of the statute only . and if an administration be granted to one which is next of blood , upon which the first administrator brings an action of debt , & hanging that , upon suggestion that the first administration is void , another administration is granted ; and it seems that this second administration granted upon this suggestion shall be repealed from the first , though it be generall , and without any recitall of it . but if the second be declared by sentence to be void from the beginning , then the first remains good . action upon the case was brought for these words , that is , thou hast killed i. s. and it seems that the action doth not lye , for a man may kill another in execution , and as minister of justice , or in warr , in which things killing is justifiable . michaelmasse . . jacobi , in the common bench : george barney against thomas hardingham . in trespasse for breaking the house , and taking of a cowe , the defendant pleades that the king and all those whose estates he hath in the hundred , have had turne , and at the court held such a day it was presented , that the plaintiff hath incroached upon the high way , for which he was amerced , and the amercement was affirmed by two justices of peace , according to the custome of the turne aforesaid : and that he being bayliff of the hundred , by vertue of a warrant to him in due manner made and directed , hath entred the said house , and taken the said cowe for distresse , for the said amercement , and carrying it away , which is the same trespasse , and so demands judgement , upon which plea the plaintiff demurred : and by haughton serjeant for the plaintiff , the plea in barr is not good , and first he conceived that it was not good , insomuch that the king hath made his prescription by whose estate , and he intended that he could not make his prescription by whose estate , insomuch that this lies in grant , as it is . h. . . where it is agreed that by nothing which lieth in grant , a man may prescribe , ( by whose estate . ) also the plea is that the king was seised in his demesne as of fee , where it ought to be in fee only , insomuch that it is a thing only in jurisdiction or signiory and not manurable , as in . h. . . h. . . assis . in an action of debt upon reservation made upon lease of a mannor and hundred , it is agreed that the hundred is not in demesne nor manurable : also the plea is not good , insomuch that it is not pleaded , before whom the turne shall be held : and allwaies when a man claimes a court by patent , he ought to shew before whom his court shall be held , otherwise it shall not be good , so of conusance of pleas , otherwise it is if it be in a turne , for that shall be intended a certaine ancient court. see . ed . . . h. . . . h. . . also the statute of magna charta , chap. . requires that it should be held in the accustomed place , and so it ought to be alledged , or otherwise it is against the statute , and for that it shall not be good , for it is of the nature of sheriffs turne and derived out of that : see the book of entries in replevin . also the statute of magna charta , chap. . appoints that the officers shall be the sheriffe , and this is not pleaded but generally by two justices of peace upon their oath : and also it is not pleaded to what sum the amercement was made . also it is pleaded that he being a bayliffe of the hundred , by vertue of a warrant to him in due manner directed and made , hath taken the distresse , and doth not plead the warrant certainly nor the place where it was made , and for that the plea is not good : also he pleades that he took and led away the cowe , in name of distresse , and he ought to say that he took it and impounded it , for that ( he tooke it and carried it away , ) imports that he tooke it to his owne use , . ed. . . . ed. . . and so he concluded that the barr is not good , and praied judgement for the plaintiff : and barker ( serjeant for the defendant ) conceived that the prescription for the hundred ( by which the estate ) was very good , and for that , see . h. . . a. . h. . . h. . also he intended that the title to the court is very good , notwithstanding that it is expressed , before that it shall be held , insomuch that the law takes notice of the turne of the sheriffe , and that he is judge of that , and that the affirance is very good , insomuch that this is according to the custome of the turne aforesaid : and the warrant of the baylif●e is very well pleaded , and more is pleaded then need , for it is the duty and appertaineth to his office to gather the amercements , and he might do that without warrant by force of his office : but if it be upon plaint between party and party , otherwise it is , and for that see the book of entries . and also the charge in the action is for that , that he took and carried away , and of that he made justification , and he cannot plead otherwise , and to the ( whose estate , &c. ) that a man cannot prescribe to have a thing by ( whose estate ) which lieth meerely in grant , without shewing of a deed , yet when that is appurtenant to another thing , as here the court is to a hundred , it may very well that do , and . h. . b. leete , when the penalty is presented by the jury it selfe , there needs not any affirance : and so he concluded that the plea in barr is very good , and praied judgement upon that for the defendant : and coke cheife justice said , that turne of the sheriffe is derived of turner , which signifies to ride a circuit , and so of that is derived turner , and of that the turne of the sheriffe , and of this is derived the hundred , and from this the leete : and it seems to him , that he ought to plead , before that the court shall be held , insomuch that it is against right , and so it was adjourned . michaelmas . . jacobi , in the common bench. hill against upchurch . note that coke cheife justice saith , that it was adjudged in . of eliz. for the mannor of northhall in the county of essex , that admitting that a copy-hold may be intailed by the statute , that then custome that a surrender shall be a barr or discontinuance of such estate tayl is good , for as well as the estate may be created by custome , as well it may be barred or discontinued by surrender by custome . brandons case . note if a mannor or other signiory be extended upon a statute , and a ward falls which is a sufficient value to make satisfaction of the extent , yet this shall not be any satisfaction in tender to satisfaction : insomuch that this is only the fruit of tenure , and not like to cutti ng of trees , nor to digging of cole or other ore : and so coke cheife justice , that it hath been adjudged , and with this agreed the booke of . ed. . . the manner to make summons in dower , if the land lieth in one county , and the church in another county : then upon the statute the sheriffe ought come to the next church , though it be in another county , and there make proclamation , asthe auditors in accompt ought to commit the accomptants found in arrerages to the next gaole , and there ought to be committed though that they are in another county . the words of a patent of a judge of the common bench are as follows , that is to say , james by the grace of god , &c. know that we have constituted humphrey winch serjeant at law , one of our justices of the common bench , during our good pleasure , with all and singuler vales and fees , to the same office belonging and appertaning , in witnesse of which , &c. michaelmasse . jacobi , in the common bench. jacob against stilo . sowgate . in an action upon the case for slanderous words : the declaration was , that the defendant said of the aforesaid plaintiff , that he is perjured , to which the defendant pleads , that the plaintiff another time hath brought an action in the kings bench against the same defendant for that , that he the said plaintiff was perjured , and had cozened john sowgate , and that the defendant had pleaded to all besides these words , ( thou art perjured ) not guilty , and to the words ( thou art perjured ) he justifies that the plaintiff was perjured in making an affidavit in the star-chamber , and this issue was joyned , and it was found for the defendant , but it was not pleaded that any judgement was given upon it , and haughton serjeant for the plaintiff , which had demurred upon the defendants plea : argued that the plea is insufficient , for if it shall be intended by that , that the plaintiff was afore times barred , if it be in a reall action , it ought to be averred , that it is for the same land , and if it be in a personall action it ought to be averred that it is the same debt or trespasse , and if it be pleaded by way of justification , then he ought to have averred also , that the plaintiff hath taken a false and untrue oath , upon which issue might have been taken : but here nothing is pleaded but the record , and nothing averred ( in facto ) so that the issue cannot be taken upon it , for the pleading is only of record , and that the defendant for the cause aforesaid in the record afore said mentioned , spoke the said words , and this is not good , for there is not contained any cause of justification , as in quare ▪ impedit , in the . and h. . the defendant pleads that he was incumbent by the cause aforesaid ( and without that : ) but this was no good plea , for he ought to plead his title specially . and also it is not pleaded as estoppell , for then he ought to have relied upon that precisely , as . h. . in replevin the avowant relies upon discent , . assis . . . h. . . also estoppell it cannot be , insomuch that judgement was not given in the first action ; also it is not pleaded as estoppell for the plea is concluded judgement if action , where he ought to have relied upon the estoppell , and peradventure also the triall was voyd by unawarding of venire facias , or other error ; so that without judgement it can be no estoppell , and so he concluded and praied judgement for the plaintiff . barker serjeant argued for the defendant , that the declaration is very good , and notwithstanding that the words are generall ; that is , he is perjured , yet this may be supplyed very well by the ( innuendo ) as it appeares by james and alexanders case , . coke . . a. and also that estoppell by the verdict is good without judgement , as in action of debt , release was pleaded , and issue joyned upon that , and found for the defendant , and after another action was brought for the same debt , and agreed that the first virdict was estoppell , . ed. . . b. c. and he cited baxter and styles case to be adjudged in the point , that the estoppell is good , and also vernons case , . coke where the bringing of a writ of dower , estopped the wife to demand her joynture , and so concluded and prayed judgement for the defendant : coke , the count is good being of the aforesaid plaintiff , and may after be supplyed by ( innuendo ) though that the words after are generall ; but if the words were generall , that is , he is perjured , without saying that the defendant spoke of the aforesaid plaintiff , these english words following ( videlicet ) he ( innuendo ) the plaintiff ) is perjured , this is not good , and shall not be supplied by ( innuendo ) and he said that another time convicted is a good plea in case of life without judgement , but this is in favour of life , but in trespasse it ought to be averred , that it is the same trespasse , and also there ought to be judgement , and the defendant ought to relye upon that as an estoppell , and agreed by all that judgement should be●given for the defendant , if cause be not shewed to the contrary such a day , &c. michaelmass , . . jacobi , in the common bench. hall against stanley . in trespass for assault and imprisonment , the defendant justifies , insomnch that the action upon the case was begun in the marshalsey for a debt upon an assumpsit made by the plaintiff , and that upon that capias was awarded to this defendant being a minister of the said court to arrest the plaintiff to answer in the said action , and that he by force of that arrested the plaintiff , and him detained till the plaintiff found suerties to answer to the said action , which is the same assault and imprisonment : to which the plaintiff replied , that none of the parties in the said action were of the kings houshold , and so demanded judgement , upon which the defendant demurred in law : and dodridge the kings serjeant for the defendant , that the court of marshalsey may hold plea of actions of trespasse , by the parties or any of them of the kings house or not , and he intended that the jurisdiction at the common law was generall , and then they have jurisdiction of all actions as well reall as personall , and though that their jurisdiction be in many cases restrained , yet in an action of trespasse there is not any restraint , but at this day they have two jurisdictions : that is , in criminall cases , and also in civill causes , within the virge : see fleta book the second and third , where he discribes the jurisdiction of all courts , and amongst them the jurisdictions of this court , and also britton which wrote in the time of ed. . lib. . chap. . which saith it was held before bygott who was then earle of norfolke and marshall , and their authority and jurisdiction was absolute and their judgements not reversable unlesse by parliament , and this appeares by the statute of . ed. . chap. . that they might hold plea of things which did not concerne them of the household , and also the words of the statute of articuli super chartas chap. . . ed. . provides that the marshalsey shall not hold plea of free hold of covenant , nor of any other contract made between the kings people , but only of trespasse made within the kings house or within the verge , and of such contracts and covenants which one of the honse made with another of the house and within the house and in no other place , where trespasse is limited to the kings house or within the virge , but no restraint that the parties shall be of the kings house , or otherwise it shall not be intended which shall be only those which are of the kings house , insomuch that the trespasse is limited to be made within the virge , also he sayd it was a statute made ed. . which provides , that if any causes arise amongst the citizens of london only , that this shall be tryed amongst the citizens ; but if it be between them of the house , it shall be tryed by them of the house , by which it appears that they may hold plea between citizens of london , where none of the parties are of the kings house , also the statute of ed. . chapter . provides that in inquests they shall be there taken by men of the country adjoyning , and not men of the kings houshold if it be not betwixt men of the kings houshold if it be not for contracts , covenants and trespasses made by men of the kings houshold of one part , and that the same house which referrs to the statute of articuli super chartas before cited , and this expounds , and so the statute of ed. . chapter . provides that in inquests they are to be taken in the marshalsey , that the same inquests shall be taken of men the country thereabouts , and not by people of the kings , house , if it be not of covenants , contracts , or trespasses made by people of the same house , according to the statute made in time of the grand father of the said now king , and according to that the use hath been , that is , if none of the parties of were the kings house then the tryal had been by the men of the country adjoyning . and if one of the parties be of the house , and another not , then the tryall is by party juries : and if both the par●ies be of the house , then all the jury hath used to be of the house ; and if the cause be between citizens of london , then the tryall hath used to be by citizens of london , and in the book of entries , the same plea was pleaded in false imprisonment , , . and the register , fol. . a. in action upon escape in trespasse , and to the books of h. . . h. . long , ed. ed. . ed. . he saith , that none of these books are in action of trespasse but one onely , and that is mistaken in the principall point , and so may be mistaken in one by case : and the booke of h. . . is directly in the point ; but brooke in abridgement of that saith , that the practise and usage of the court was otherwise : but it may be objected that this is ( indebitatus assumpsi● ) which is in nature of an action of debt , and founded upon contract ; he said that fitzherbert in his natura brevium said , that there are two sorts of trespasses , that is , general , and upon the case , and trespasse is the genus , and the other are the species , and that the action is founded upon breach of promise , which is the trespasse , as for not making of a thing , which he hath promised to doe , and it is majesteale breve , and not breve formatu● , and so is an action of trover and conversion , or assumpsit , are writs of trespasse ; but admit that no , yet action of false imprisonment doth not lye , for hee ought not to dispute the authority of the court ; for the duty of his office is only to be obedient and diligent , for otherwise he should be judged of the judg : and who by the appointment of the judge doth any thing , doth not seem to do it deceitfully , because it is of necessity he should obey ; and h. . . a justice of peace awarded a warrant to arrest a man for suspition of felony , where his warrant was void , and yet the party to whom it was directed , justifies the making of the arrest by force of that . and . h. . . capias was awarded to the sheriff without original , & yet it was a sufficient warrant to the sheriffe : and assis . . court awarded a warrant , where they had no jurisdiction , and yet it was a sufficient warrant for him to whom it was directed . and so in mansells case , if the sheriffe execute an ( habere facias sesinam ) awarded upon a void judgement , this is a sufficient warrant for him . so in this case allowing that the court hath no jurisdiction , yet the plaintiff cannot be retained by this action , but is put to his writ of error , or to his action upon the statute , and so he concluded , and prayed judgment for the defendant . hutton serjeant for the plaintiff argued to the contrary , and hee intended that judgment should be given for the plaintiff , for the matter , and also for the parties , and that the judgement , and all other proceedings in the marshalsey were meerly void ; and he denyed that they had originally such absolute jurisdiction , as fleta pretended , for originally that was only for the preservation of the peace , as it appears by the stile of the court , and also by the diversities of the courts , and that criminall causes which require expedition , are there only tryable , and that civill causes are incroached of later times , and it was necessary to be restrained and reformed by parliament : and it appears by the statute of articuli super chartas , that they have encroached to hold plea for free-hold ; and for that the court which is mentioned in fleta , cannot be otherwise intended then the kings bench , which then followed the kings court. and also that they have not incroached only upon matters , as to hold plea for free-holds , but also to persons and place where contracts and trespasses were made , and this was the cause of the making of the said statute . and to this action of trespasse for indebitatus assumpsit there begun , he intended that it is for another thing , of which they could not hold plea , and it might be criminall ; for civill is that which begun by contract , and it is part of the commutative justice , for which is recompence given by one party to another , and is not founded upon the contract , but is translated to an action of trespass , which manner of trespass is not within the statute : and so he intended , that for the matter it is not within the statute : and then for the persons also , he intended that it is not within the statute , and this appears by the words of the statute of . edw. . articuli super chartas , and to that . h. . . it is adjudged that judgement in such case there given is void , and coram non judice , so h. . . expresses the cause to be , insomuch that none of the parties are of the houshold of the king , h. . . edw. . . . edw. . h. . rot. . and he cyted also michelburns case to be adjudged upon a writ of error , in the kings bench , eliz. that they could not tender a plea in trospasse for trover and conversion , if none of the parties were of the kings house : and further he said , that when a court hath jurisdiction , and errs in matter of proceedings , or in law , there the execution made by force of their process shall be lawfull . but where the judgement is void by default of jurisdiction , as in this case , there it is otherwise , as h. . . recovery of land in the spirituall court is void ; so formedon commenced , & judgment given upon that before the judges of assises void . so h. . . recovery of land in wales in this court is void ; and edw. . . recovery of land in ancient demesne is avoidable by writ of deceipt : but in the other cases before , the judgment and recovery is absolutely void , and ( coram non judice ) for default of jurisdiction : so in h. . . b. recovery of land in durham , chester , or lancaster , here is void for the same cause : and in this case also the said statute makes that void by expresse words , see the statute of articuli super chartas , chap. . and to the case of h. . before cyted , of warrant awarded by justice of peace ; he agreed , that insomuch that the justice of peace had jurisdiction of causes of felony , and erred only in the forme and manner of his proceedings , and so in all the other cases which were put of the other part . and also hee agreed that a writ of error may be well maintained , if such judgement which is void , as it was in michelburns case , for the party may admit the judgment to be but voidable if he will. and to the exceptions to the pleading , that is , that the authority is not prosecuted , postea , that is , such a day , which was before the judgment , and yet it seems good ; and that in the first the authority was very well prosecuted in the postea was sufficient , and the other words , that is , ( such a day ) is but surplusage ; and so he concluded , and prayed judgment for the plaintiff , and it was adjourned . michaelmas . . jacobi , in the common bench. peto against checy and sherman and their wives . tri● . . jacobi , rot. . in trespasse and ejectione firme , the defendants pleaded , that one of the defendants made agreement with the plaintiff for the said trespasse and ejectment with satisfaction , and demands judgment , if action , upon which the plaintiff demurred in law ; and it was argued by nicholls serjeant for the plantiff , that the agreement was no plea , though it be said by keble in the . h. . . that though it be a plea in ravishment of ward , quare impedit , and quare ejecit infra terminum , insomuch that they are actions personall : but wood denyed that , insomuch that inheritance is to be recovered , and in ejestione firme tearm shall be recovered ; and for that it shall not be spoken , and of this is wood expresly in the . h. . . b. that in ejectione firme agreement shall not be a plea , insomuch that the tearm is to be recovered , which is the thing in demand . and there also it is agreed , that in waste brought against lessee for yeares in the tenet , agreement is good plea , and so vavasor intended , if it be in the tenet , but not if it be brought against lessee for life : and also he intended that by recovery in ejectione firme , more shall be recovered then the tearm only , for by that the reversion shall be also reduced , and for that the inheritance is drawn in question ; and it is said in . h. . . that it shall not be a plea in assise , insomuch that there the free-hold is to be recovered , and by the same reason hee intended that shall be no plea , insomuch that more is to be recovered then in assise , for there the tenant only shall recover the free-hold , and his damages ; but here the tearm and the inheritance also are reduced and revested : and this is the reason also which is given in . h. . . b. by fisher : that if a man make a lease for years , rendering rent , and after brings debt for the rent behind , the defendant cannot wage his law , notwithstanding that the action is personall : but this is more high in his nature , as it is there said , and yet there nothing shall be recovered , but only damages , for which a man may have satisfaction . also he intended that it was not well pleaded ; that is , that such agreement was had between the plaintiff , and one of the defendants , and betwixt those shall be intended those two only , and also ipsum and alios by his command●ment , and doth not shew that this was made by the other two by his commandement , and so he concluded , and prayed judgment for the plaintiff . shirley serjeant for the defendant , that the plea is good , and that the nature of the action is only trespasse by force and arms , and differs from a quare ejecit , but ejectione firme differs from predict . infra terminum , and lyes against the immediate ejector ; but quare ejecit lyeth against him which hath title , as he in reversion , h. . . b. ejectione firme was brought by executors of land let to their testator for years , upon outing of the testator by the statute of edw. . chap. . which gives action for the executors of goods taken out of the possession of their testator : and it seems to him also that proces of outlawry lyes in an ejectione firme , but in quare ejecit infra terminum only summons . so it is . h. . . there is a great difference between waste and this , for there the process is distress , and other speciall process : but so is it not here , but only the process which is in other generall actions of trespasse , and so is the expresse opinion of keble , in . h. . . that in ravishment of ward , quare impedit , and quare ejecit infra terminum , that agreement is a good plea , and yet all these trench upon the realty ; and in ejectione firme , if the tearm expire , hanging the action , this shall not abate the writ ; but the plaintiffe shall have judgement for his damages , otherwise in a quare ejecit infra terminum . and it was resolved eliz. that if an ejectione firme be brought at the common law of lands in ancient demesne , that this shall not alter the tenure , insomuch that it is meerly personall , and the damages are the principall which are to be recovered ; and in edw. . . b. the difference is shewed between ejectione firme , and quare ejecit infra terminum , for one lyes against the lessor , or other ejector immediately , and the other lyes against the feoffee of the other immediate ejector , and the first is by force of armes , and the other not , and it alwayes lyes against him that is in by title , and the first against him which is the wrong doer ; and hee intended that the agreement with one of these defendants is good , for it is satisfaction , and discharges the action as release , the which every one which hath it may plead ; and here it is pleaded with satisfaction , that is obligation , upon which the plaintiff may have action , and so he concluded and prayed judgement for the defendants . wynch justice argued this case , notwithstanding that hee had not heard any argument at the barr , this being the first case that he argued after he was made justice of this court , and he delivered his opinion that the agreement was a good barre ; and he said , that the difference is where the thing to be recovered is in the realty , and where it is in the personalty , as it is agreed in blakes case , coke . b. so that here the only question is if this action be in the realty , or in the personalty , and it seems to him that it is in the personalty , and that it is of the nature of trespass , and the tearm is not anciently to be recovered , as it is . r. . fitz. na. bre. and it is within the statute of edw. . chap. . which gives action to executors for goods carryed away in the life time of the testator , as it is h. . . b. and to objection , that ancient demesne is a good plea , and for that is in the realty , and hee said , and so it is in accompt , and accompt is not in the realty ; and the reason why it shall not be a barr in assise , is in so much , that there the free-hold shall be recovered , but this fails here : so in waste also this toucheth the inheritance ; but here the inheritance doth not come in question , but the tearm only ; and it doth not appeare to the court , that it concerns inheritance , for it may be betwixt the lessor or another which claims under him , and the lessee . and if a husband which hath a tearm in right of his wife , submits himself to arbitrement , this shall not bind the wife , but shall bind the husband , and shall be a barr , if the wife hath not interest , and so he concluded that judgment shall be given for the defendants , and that the agreement is a good barr. foster justice intended that the agreement is a good barr in an ejectione ▪ firme , &c. and it seems that it is no question but that the action is personall , and yet hee agreed that ancient demesne is a good plea. so in debt , receipt of part hanging the writ abates all the writ . and ed. . . b. two tenants in common were of a tearm : and h. . . b. executors shall have an action upon entry made in the time of their testator by the statute of edw. . chap. . and in this the plaintiff shall recover his tearm ; but he denyed that the reversion is reduced by the recovery , nor revested in the lessor till the lessee enter . and to the objection that the realty and inheritance may come in question in this , that is not to the purpose , for so it may in an action of trespasse . and he intended there is no difference between agreement and arbitrement , and agreed that none of those is a plea where the inheritance or free-hold comes in question . and he conceived that arbitrement for free-hold is not good , unlesse the submission be by deed indented ; for by obligation with condition is not sufficient , h. . . b. and it is not in difference , h. . that in ravishment of ward submission may be without deed , insomuch as it is in the personalty , and he intended that there is no difference between that and ravishment of ward , and ward is but chatt●ll , so is tearm which may be sold by word , as well ●s the possession may be sold by word , so may the right of that be extinct by word . and as if a may be bound to pay a certain summe of money at a certaine day , and the obligee accept parcell in satisfaction before the day , and that is very good : so in this case acceptance of a summe of lesse value may be a satisfaction of such personall thing , h. . dyer . edw. . dyer , h. . h. . and so he concluded , that for that nothing is to be recovered but chattell , that for that the agreement shall be good plea. warburton justice agreed that the agreement should be good in ejectione firme , insomuch that this is meerely personall : and he argued that it is no plea in assise insomuch that this is reall , and there the free-hold is to be recovered , and this is the reason that waging of law lieth in debt upon arbitrement , insomuch that the seale of the arbitrators is not annexed unto it , and for that to him it is but only matter in deed , . ed. . and he intended that agreement with satisfaction is as much as arbitrement , for a personall thing cannot be satisfaction for a reall thing , and that is the cause that it cannot be a barr in debt upon arrerages of accompt , insomuch that that is founded upon record , and is a thing certaine : and in wast it is no plea , insomuch that this is a mixt action , if it be against a lessee for life , otherwise if it be against a lessee for yeares , for a tearme is taken in . h. . . b. to be within the word ( goods , ) and an executor may have an action upon that , ( of goods carried a way in the life of the testator ) and though that the entry abate the writ , yet this doth not prove that it is more then a tearme , and though that the tearme determine hanging the writ , this shall not abate the action , but the plaintiff shall recover dammages ; and in ravishment of ward , summons and severance lies , and the body of the heire shall be recovered , and so in quare impedit summons and severance lies , and the presentment shall be recovered and dammages , and yet the principall is but presentmemt , which is but a chattell , and for that agreement shall be a barr , and so he concluded that judgement shall be given for the defendant , and that the agreement is a good plea , coke cheife justice agreed that the agreement is a good plea : & he thought that that savered of realty , for that , that the tearme is to be recovered , and of the personalty in respect of the dammages , which are to be recovered , and that in all actions , where money or dammages are to be recovered , ( agreement ) is a good plea , as in . ed. . . and . ed. . in debt upon a lease for yeares , concord is a good plea , and . ed. . . in detinue for charters it is a good plea , and in . ed. . dyer . . it is a positive rule , that in all cases and actions , in which nothing but amends is to be recovered in dammages , there an agreement with an execution of that is a good plea , and for that in detinue it shall be a good barr : so in covenant it was adjudged in blakes case , . coke . . as where an obligation is with a condition , to pay money at such a day , the payment of another thing is good , if the obligation be to pay a certaine sum of money : but if a man be bound in a sum of money , to make another collaterall thing , the acceptance of an other thing collaterall shall not be a barr , for money is to the measure , and the price of every thing , if a man be bound in two horses to pay one , acceptance of another thing shall be no barr : but the acceptance of such a sum of money in satisfaction is good barr , for this is the just estimation and measure of every thing , see . h. where a man was bound in an obligation with condition , that he shall make acknowledgement of the obligation of twenty pound to the obligee before such a day , &c. and agreements are much favoured , for it is a maxim and interest of the common-wealth , that there be an end of suits , for by concord small thing increase , and by discord great things are consumed , and the beginning of all fines is , et est cordia talis , &c. and the . of rich. . barr. . in debt upon a lease for yeares , the defendant pleads that by the same deed by which the land is let , the plaintiff grants , that the defendant ought to repaire the houses lett , when they are ruinous , at the costs of the plaintiff , and he retaines the rent for the repaire of the houses being ruinous and a good barr : and if it be a right of inheritance or free-hold that cannot be barred or extinct by acceptance of another thing , though it be of other land , as of another mannor , as it is agreed in vernons case . of coke : a woman accepts rent out of the land of which shee is not dowable in recompence of her dower , this shall not be a barr , . ed. . . . eliz. dyer , and he said that the book of . h , . . is misprinted , insomuch that it is reported to be adjudged : but in truth this was not adujdged , for then it would not say in . h. . . the residue before . h. . . and in the . of h. . warranty , it is agreed that in wast against lessee for yeares . agreement is a good plea , otherwise if it be against lessee for life : and if they have adjudged , . h. . . which was so small a time before , they would not have adjudged the contrary in . h. . and hillary . ed. . bendlowes in wast against lessee for yeares in the tenet : agreement is affirmed to be good barr : and in the book of reports in the time of h. . printed in time of h. . the yeare of the . of h. . there was no print at all : and he then upon that inferrs , that as well as a man might agree for trees , so well might he agree for tearme ; and to the booke of . h. . . a. that release of one plaintiff in an action of wast is a good barr , he said that this is to be understood in wast of the tenant , and then it shall be a good barr , see in the . of ed. . . a. two joyne in an action of wast , and the one was summoned and severed the other recovered the halfe of the place wasted ; and in the . h. . . agreement is a good barr in an action of wast , and he intended that in all actions by force and armes , where a capias lies at the common law : agreement or arbitrement are good pleas , as ravishment of ward which is given by statute in lieu of trespasse , for taking of a ward , where a capias lies at the common law , and agreement was a bar , and for that now agreement shall be a barr in ravishment of a ward : and he intended that an ejectione firme which is trespasse in his nature , and the ejectment is added of later times : and in all their entries , this is entred trespasse , and severs the trespasse from the ejectment , and the ejectment will vanish , and the statute of . ed. . chap. . which gives action to executor , of goods carried away in the life time of the testator , extends to that which proves this to be trespasse , for by the statute the executors may have ejectione firme for ejectment made to their testator , notwithstanding that ancient demesne is a good plea in that , and in the . ed. . . that is called an action of trespasse , and so all the entries are de placito transgressionis , and in the book of entries , in mayhme it is cited to be adjudged . h. . trin. rot. . that concord is a good plea in an appeale of mayne . h. . . but in an action in the realty it is no plea , otherwise in quare impedit , for there nothing is to be recovered , but that which is personall , and he intended that agreement by one of the defendants in personall action is a good barr , as in . h. . barr , concord made by the freind of one of the parties was a good barr statham , covenant accordingly , and . h. . 〈◊〉 . h. . one of the petty jury in attaint , pleads agreement and good , and in an ejectione frime , lease made to try title is not within the statute of buying of titles , if it be not made to great men , but to a servant of him which hath the inheritance ; and cannot mainetaine or countenance the action , and bracton . fol. . lessee for yeares hath three remidies if he be evicted , that is covenant , quare ejecit infra terminum against the feoffee of the ejector , or an ejectione firme against the immediate ejectors , and in ejectione firme the tearme shall be recovered , as . h. . . h. . and . h. . . non-tenure is a good plea in ejectione firme ; ergo the tearm shall be recovered , . ed. . . . h. . and . h. . it is adjudged that the tearme shall bee recovered in ejectione firme , and so he concluded , that the agreement shall be a good barr , because wise men seeke peace fooles seeke strifes : and that judgement shall be given for the defendant , which was done accordingly . m●hcaelmass , . . jacobi , in the common bench. mallet against mallet . lands were given to two men ; and to the heires of their two bodies begotten , and the one died without issue , and the remainder of the halfe reverted to the donor , and he brought an action of wast against the surviving donee of houses and lands to him demised , and agreed that the writ was good , but it was a question if the count shall be generall , or of a halfe only , notwithstanding that both the parties were tenants in common of the reversion . michaelmas . . jacobi , in the common bench. ralph bagnall against john tucker . after . trinity . or micaelmasse . jacobi , rot : . the case was , copy-holder for life , remainder for life purchaseth the frehold and levies a fine with proclamations made five yeares-passe , and then he died , if the remainder were bound by the fine or not , was the question , and it seemes that it shall not be barr , for he is not turned out of possession in right . so if a man hath a lease for remainder for yeares and the first lessee for yeares purchase the free-hold , and levie a fine with proclamations , and five yeares passe , this shall not barr the remainder for yeares , insomuch that this was interest of a tearme , and remaines an interest as it was without any alteration , and it was not turned to a right . and yet it was agreed that the statute of buying of pretenced rights extends to copy-holds : see lessures case . coke . see pasche . for the judgement . note if an attorney of this court be sued here by bill of priviledge , he ought not to find bayle : but if he be sued by originall , and comes in by capias , then he ought to find bayle . in covenant upon a lease made by the dean of norwich , predecessor to the dean that now is , and the then chapter of the foundation of ed. . king , for injoying of land devised to the plaintiff for three lives discharged of all incumbrances , and also to accept surrender of the same lease , and to make a new , and for breaking of covenant , the same dean and chapter in such a yeare of the raine of h. , had made a lease for years not determined , by which the lands devised were incumbred , upon which the defendant demurred . and hutton serjeant for the defendant argued , that the lease was by the statute of of eliz. as to the successor of the dean which made it , for that it was a lease for years in being at the time of the making of that , as it is resolved in elmers case upon the statute of eliz. if a bishop makes a lease for years , and after makes a lease for life ▪ the lease for life is void to the successor , and so it is in the case of dean and chapter , and though that the words of the statute are generally that such a lease shall be void to all intents , purposes , and constructions , yet he intended that it shall not be voyd against the bishop himselfe , as it was resolved in the case of the next advowson by the bishop in singletons case , cyted in lincolne colledge case . coke . b. and he intended if the lease be voyd against the successors that then the covenants also are void , as it is agreed in the h. . . dyer . . and he cited one mills case to be adjudged in the and . eliz. in the kings bench , that if a parson make lease and avoid by non-residence , the covenants also are void as well as the lease , and also he intended that the lease for life was void , insomuch that it was to be executed by a letter of attorney , and the attorney had not made livery till after two rent dayes were past , and for that the livery was not good , for when a man makes a lease for life rendring rent , with letter of attorney to make livery , here is an implyed condition , that livery shall be made before any day of payment be incurred , and it is as much as if a man had made a lease for life , without any letter of attorney to make livery before such a day there , if the attorney do not make livery before the day , but after the livery is void , insomuch as it is contrary to the condition , so in the case here , for if livery made be after a rent day , it may be made after twenty , and so immediately before the end of the tearme , and if the rent be void , for this cause the covenants also are void , and if a man bargain and sell his mannor , and the trees growing upon it , the trees do not passe without inrollment , insomuch that it was the intent of the parties that it should so passe , and for that they do not passe without the mannor , also he intended that the count is repugnant , insomuch that that containes that the last lease for life was made in the time of ed. . and after by the dean and chapter of the foundation of ed. . and after that containes that the same dean and chapter have made a former lease in the time of h. . which cannot be if the dean and chapter were of the foundation of ed. . and for that the count ought to have contained the alteration of the foundation , as in case of prescription , as in tringhams case , . coke . wyat wilds case coke . . and . phil. and mary dyer . a good case , and he intended that a declaration ought to have precise certainty , as in . and . eliz. . dyer , for a thing which cannot be presumed , shall not be intended , as it is agreed in pigotts case ▪ coke . a. otherwise of plea in barr , for that is sufficient if it be good to common intent , also he intended that there is variance between the count and the covenant , for the declaration is that the dean and chapter covenanted with the plaintiffs , the covenant is generall , that is , that the dean and chapter covenant , and doth not say with who , and for that the count also shall not be good , and so he concluded and prayed judgment for the defendant . haughton serjeant for the plaintiff , intended that the covenants shall not be voyd , notwithstanding that the lease it self be voyd , & he intended that a lease made by a parson shal be good against himself , but it shall be voyd by his death to the successor , but a lease made by a dean and chapter shall be void to the dean himself , and the covenant shall be in force , notwithstanding that the lease be void , insomuch that the covenants are collaterall , and have not any dependance upon the lease , but to the inherent covenants , which depend upon the lease and the estate , as for reparations and such like shall be voyd by the avoidance of the lease , but he intended that covenant to discharge the land from incumbrances , doth not depend upon the interest , but it is meerly collaterall , and for that it shall not be void , and with this difference he agreed , all the cases put of the other part , as in ed. . . lease was made to the husband and wife , the husband dies , the wife accepts the land , and shall not be charged with collaterall covenants , notwithstanding that shee agrees to the estate , insomuch that they do not depend upon the estate , and to the livery made after two rent dayes incurred , he intended that livery is good , that notwithstanding for the deferring of the execution of a letter of attorney shall not defeat the lease , or other meane act which amounts to a command , for the less●r takes the profits in the mean time , and it is not like to littletons case , that if a man devise his land to his executors to be sold , and they take the profits and do not make sale , that the heir may enter , insomuch that the executors have not performed the condition , and it was not the intent of the devisor that they should take the profits in the interim to their own use , and he intended that the declaration was not repugnant , for it is of the aforesaid church , and not of the dean and chapter aforesayd , and also there need not such congruity , as it were the foundation of the action , insomuch that this is only allegation of the truth of the matter , see h. . . for variance upon shewing in deed , and ed. . . b. and here the aforesaid shew , that it is the same in substance though it vary in words , and though that the name is altered , yet are the same persons in substance and the same body , and though that it be as it is intended to be of another part , yet it is but name , and the foundation then is not issuable , as if the king h. . had been the founder and made speciall provision in the foundation , that after the time of ed. . it shall be said to be the foundation of ed. . this shall be good , and so he concluded and prayed judgment for the plaintiff , see after adjudged . michaelmas . jacobi . in the common bench. the bishop of ely. the bishop of ely granted an office with the fee for the exercising of that , if it be an ancient office , it is a good grant , and if the fee be newly increased , yet foster justice thought that the grant shall be good for the office , and for so much of the fee as hath been anciently granted with the office. michaelmas . . jacobi in the common bench. holcroft against george french. in an action upon the case upon an assumpsit , if the consideration be executory , then the declaration ought to contain the time and place where it was made , and after it ought ro be averred in facto , when it was performed or executed accordingly , but if it be by way of reciprocall agreement , then the plaintiff may count , that in consideration that he hath promised for the defendant , the defendant hath promised to do another thing for him , there he need not that the declaration contain time or place for the consideration , or otherwise that it is performed and executed . but if in the first case , where it is executory , that is also an averment that it is executed there , if the defendant plead non assumpsit generally , and do not plead the speciall matter , he cannot after take exception to that count for the default aforesayd , where he pleads specially to that , as in an action of trover the conversion ought to be averred to be in a certain place , and so in submission and arbitrement , they are contained in the declaration , it need not to expresse any time or place certain , but if the defendant , pleads that the arbitrators made no award , or that the parties have not submitted themselves to their award , there the plaintiff may reply , that the arbitrement or submission was made at such a place , and this was agreed by all the justices . michaelmasse . . jacobi , in the common bench : sir edward puncheon against thomas legate . it was adjudged in the kings bench , and affirmed upon a writ of errour in the kings bench , that an action upon the case upon an assumpsit made by the testator is very well maintainable against the executor , and this was for money borrowed , and so the count speciall , but not upon generall , indebitatus assumpsit , but is good without any averment , that the executors have assets over the payment of debts due by specialty and legacies , and he sayd , that the record of the case of h. . with this agrees , and that the book in this is misprinted , and so coke cheife justice who publickly reported this judgment in the common place , sayd , which was adjudged in the h. . in this court. note that land of which a writ of right close lyeth , shall be assetts in a formedon , and it is a free-hold and not a copy-hold , and so are all lands in ancient demesne , ed. . h. . it is no matter what is known to the judge , if it be not in the form of judgment . pasche . fol. . haughton serjeant for the defendant , argued that the entry of him in remainder is not lawfull , insomuch that he intended it is not any forfeiture of the estate tayle , and first he argued that the condition is not good , but repugnant to law , and for that voyd , and yet he agreed that tenant in tayl may be distrayned from making unlawfull acts , but here the condition tends to restraine him from doing of things which are lawfull as if a man makes a gift in tayl , upon condition that the wife of the donee shall not be indowed , or that the husband of the donee shall not be tenant by the curtesie , or that a feoffee shall not take the profits of the land , though that the profits may be severed from the land , as in ed. . formedon was brought of the profits of a mill , yet the condition is voyd , insomuch that it is against the nature of an estate tayl , or in fee-simple to be in such manner abridged , so if a man makes a gift in tayl upon condition , that the donee shall not make waste , the condition is void , for the making of wast is a priviledge which is incident to an estate tayle , and for that the condition restraynes the tenant in tayle of a thing which the law inables him to do , the condition is yoyd , so a donee in tayle upon condition , that he shal not make a deed of feoffment or lease for his own life , as it is agreed in mildmayes case , so here when the condition restraynes tenant in tayl of concluding and agreeing , the which in him is not any wrong no more then if a man should make a gift in tayl upon condition that the donee should not bargaine and sell the land , this is voyd , insomuch that he doth not make any wrong or discontinuance : so in the case here , for the thing which is restrayned , that is ( concluding & agreeing ) is in it self a lawfull act , and also this is only the affections and qualities of the minde , that they cannot make an estate conditionall , if an open act be not annexed unto it , but he agreed that if a man make a gift in tayle , or a lease for life of white acres , upon condition that the donee or lessee shall not take the profits of black acre , this is a good condition , for this doth no wrong , nor is repugnant to the estate given , or leased . and secondly , he argued , that admitting it is a good condition , yet here is no act done to operate ( conclusion or agreement ) which might make a forfeiture , for he sayd that mildmayes case was an expresse condition , that tenant in tayl should not suffer common recovery , the which he might lawfully do at the common law , and he was not restrayned by the statute of donis conditionalibus , which was doubted till ed. . but here he intends that the ( agreement and conclusion ) in this case shall make no forfeiture , in respect that the wife in whom the estate , was marryed at the time of the making , and then when her husband joynes with her , it shall be sayd the agreement of the husband , and not the agreement of the wife , and yet he aagreed the case in , h. . b. dyer . that if a man makes a lease for yeares upon condition , that the lessee his executor or assignes shall not alien , and there if the wife executrix , and her second husband alien , that this shall be forfeiture , insomuch that there the condition followes the estate , and is inherent to it , but here the agreement is collaterall and personall , and this depends upon the estate , as if condition be that a woman shall not beate j. s. and she takes a husband which beats him , this shall not be forfeiture , for the condition is annexed to the person of the wife , and for that the beating of the husband shall be no breach of the condition , but the wast of the husband is the wast of the wife also , for that followes the estate and is not personall , so he agreed that acts made by a wife married , the which she is compellable to do are good , as partition between coparceners , as it is sayd by littleton , or administration of goods by executor or administrator , or to make attornement , so of things made for her benefit , as accepting an obligation , or the bringing of an action of wast upon a lease made by him are also good , but here the agreement and conclusion made by her and her husband , are for the disadvantage of the wife , and for that they are meerly voyd , as to the wife , as in h. . . . contract is made with the husband and wife and they joyne in debt upon that , and the writ abated , insomuch that the contract to the wife is void , and shall be intended to be made with the husband only , and so in russells case coke . b. it is agreed that a marryed wife cannot do any thing as executrix to the prejudice of her husband , so in ed. . . lease was made by husband and wife , and they covenanted to make suerties , and after the husband dies , and the wife accepts the rent , and she shall not be bound by her covenant , insomuch that this was colaterall to the estate , and if it be so that the agreement made by the married wife is void to her , then it is no agreement and by consequence no forfeyture of the estate : also he intended that the conclusion of the condition , for the words of the condition depends only upon the agreement and conclusion , and not upon any act made : so that the suffering of any act , doth not make any matter in the case , nor is to the purpose , and also the replication relies only upon the agreement , so that the recovery is not materiall : and he intended that it is a condition , and that it cannot be limitation , insomuch that the words are , that the estate shall cease , as if such person had not been named in the will , and so that the estate shall cease , as if he had been dead , which are words of defeazance only and not of limitation , for he doth not appoint the estate to continue so long : and also the words are repugnant , for it cannot make the estate void as if he had not been named , for this is only the office of an act of parliament to make a man to be dead to one , and to be alive to another purpose ; and so he concluded , and praied judgement for the defendant : nicholls serjeant for the plaintiff argued , that it is a matter sufficient upon which judgement shall be given for the plaintiff , and he first considered the words of the condition ; that is , if the devisees by themselves or by any other , shall make any conclusion or agreement , &c. this shall be a forfeyture ; as in , h. . . dyer . where a lease was made to the husband and wife , proviso that if they are disposed to sell and alien the tearme , that the lessor shall have the first offer , and agreed , that if that be a condition , and the wife survive the husband , notwithstanding that it was not her deed , but the act of the husband , she shall be bound by that , insomuch that her estate is bound with that , and this was the pleasure of the lessor , and she cannot hold it otherwise then it was given , and . ed. . . if a man makes a lease for yeares to the husband and wife , and after outs them , they shall joyne in a covenant , and so . ed. . . they joyne in a fine , yet there the husband only brings debt for the money , notwithstanding that it be the land of the wife which was sold , and . ed. . . if the husband and the wife joyne in covenant : see . ed , . . b. where they joyne in lease , and also to make further assurance , and the husband and the wife also charged with that , and so in the . h. . . feoffment was made to a woman sole upon condition , and after she takes a husband , which breakes the condition , so in . assis . . a woman sole makes a feoffment upon condition to re-enfeoff upon request , and after takes a husband , and then makes request and good , and if it be so in these cases , then in this case the wife shall not be received , to say the agreement was made against her will , and for this , see the statute which gives cui in vita to the woman , where the words are , to whom she in her life could not contradict . and after this agreement , if the husband give warrant of attorney to suffer recovery this is sufficient , as it is agreed in . ed. . and in . coke . mildmayes case is agreed : that if a man make a feoffment to a husband and a wife upon condition that they shall not alien , it is good to restraine alienation , by which it apeares that if they joyne in feoffment , that this shall be forfeyture , and yet this is the feoffment of the husband only , so here the agreement of them , notwithstanding it is the act of the husband , yet insomuch that it is against the expresse words of the condition , this shall be breach of the condition , and he intended that the words of the condition amount to as much , as if he had said , that neither the daughter sole , nor the daughter with another daughter , or with another person shall make agreement , and the other person of necessity shall be intended her husband , and so this agreement by the husband and the wife is within the words of the condition : and also he saith that it is argued in becwiths case . coke that a married wife may declare a use of a fine which is levied of her inheritance , and if the husband declare uses , the wife may controlle them : and if an estate be conveyed with power , that the husband with the assent of his wife may revoke that , the assent of the wife to such revocation is good : so if proviso be , that a married wife only without her husband may make revocation of uses and declare new this is good , and revocation made by the wife , and declaration of new uses are very good , and he agreed that in matters of record , the husband cannot prejudice the wife without her consent , as warrant of attorney upon a quid juris clamat , or per que servitia , or other act which concernes her inheritance , as in . h. . . . ed. . . . ed. . . and . h. . if a married wife joyne with her husband in a feoffment of her owne land , rendring rent , and after the husband dies and the wife accepts the rent , this shall bind her , which proves that it was her feoffment as well as the feoffment of the husband . secondly he considered the words of the condition , which are : ( conclude and agree ) &c , the which he intended not to be so uncertaine , as going about , but they are issuable and triable , as it is agreed in . ed. . . com. . a. wyrbish and taylbois case , consent to a ravishment within the statute of . r. . is issuable and triable , so of consent and agreement within this condition , for though that the words are consent and agree , yet it ought to be otherwise an act subsequent , that is , reconvey , suffer , or other such act or agreement shall not be forfeyture , for to make elopment which shall be a forfeyture of dower , there ought first to be consent , but that is not sufficient , but there ought to be also departure from the husband and then the law adjudges upon all the act : so here when it is an agreement , and another act subsequent , which is executed , then the law shall judgeupon altogether : and for that this agreement consists of two parts , first when the wife upon the motion of the husband concludes and agrees to do the act , which is the beginning of the agreement , and then when the husband and the wife upon that joyne in deed indent , as in this case , this is a consummation and makes a breaking of the condition , and this is not like the condition in myldmaies case , where every going about ought to breake that , as if he goe to councell to be advised upon his estate : thirdly he inten●ed that the condition is not repugnant to the estate , in respect that an other thing is to be done before the forfeyture , and after the concluding and agreeing , for the wife remaines in seisin after the agreement , till the recovery or other act be executed : and also he argued that before the statute of . h. . of fynes : tenant in tayl might be restrained of alienation of his estate , for untill that he could not barr the issue in tayl . so at this day he intended that a gift in tayl upon condition that he shall levie a fine without proclamations this is good , and out of the power which is given to tenant in tayl to barr the estate tayl by the levying of a fine : and levying of a fine without proclamations is only a discontinuance , and so tortious , so when a condition doth not extend to all acts , but only to all unlawful acts , and for that it doth not extend to a recovery , for that is a lawfull act , as it is agreed in scholasticas case . h. . . h. . , . . h. . and h. . leomans case : if an ecclesiasticall person hath a tearme with this condition , that he shall not alien , and after comes the estate , which inflicts punishment upon him for keeping of a farme , and yet it seemes it is a good condition : but so upon the statute of . h. . of fines , if aman hath agift in tayl with condition that he shal not alien : and after the statute of . h. . is made which inables him to barr the estate tayl by fine , yet he intended that the condition should restraine him from all unlawfull alienations : and he intended as well as such a condition annexed to a lease for life is good , so is it being annexed to an estate tayl ; for as well as it is in one case for the preservation of the reversion : so is this in the other case , and as in . eliz. dyer . grant of rent , proviso that it shall not charge the person of the grantor , shall not extend to the executors of the grantor , but shall be determined by the death of the grantor : and so as a condition that a married wife or an infant shall not alien is good , insomuch that this is wrong , so he intended that if this were a good condition at the common law , that tenant in tayl shall not alien the estate by . h. . and . h. . doth not inable tenant in tayl to make alienation against such condition : and it hath been agreed that if a man make a feoffment in fee of the mannor of d. and after makes a gift in tayl of the mannor of s. upon condition that the donee shall not alien the mannor of d. this is a a good condition , and in the . h. . . it is agreed that if a man make a feoffment causa matrimonij prol●cuti , and after divorce is sued , there the free-hold shall be devested out of the husband without entry : and also he intended that a man might make a thing by devise , the which he could not make by act executed , as authority to sell his lands to his executors it good , and yet in all cases of authorities by acts executed the authority shall cease with the life of the party : and for that there shall be one law of devises , and another law of acts executed by the party in his life , as . assis . . and fitz. na. bre. in ex gravi querela last case , the particuler estate being created by devise , ceases , and remainder takes effect : and then to the exception , that the estate shall cease and remaine to him which had the next remainder , the which is repugnant , as it was intended , and so is jermy and arscotts case : but here the words are that the estate shall cease , as if the party to which that is limited were dead without issue from the time of the contract and agreement , and the remainder to him which hath the next remainder , and not the issue of him which made the forfeyture , and also this remainder from the time of the agreement and conclusion , and not from the time of the act executed , for then it would be too late , for then the estate is transferred to another , as it was in the cases put by anderson in corbetts case : but here all the estate limited to him which made the forfeyture shall be determined , and also he intended that the reason that the replication containes , that the parties being in actuall possession are only to satisfie the words of the condition : and so he concluded , and praied judgement for the plaintiff . in dower the demandant recovered dower of tenths of wool and lamb , and how execution shall be made was the question : and the justices intended that the sheriffe might deliver the tenths of every yard land , and assign the yard lands in certain : b●t after it was conceived that this would be uncertain and unequall , and for that the sheriffe was directed to deliver the third part of all in generall , and yet the first was agreed to be good ; but onely in respect of inequalities , as in dower of a mill , the third toll dish , and of a villayne the third dayes work , as in h. . and it was also agreed that the sheriffe may assign this dower without a jury . it was moved , if an attachment be granted against a sheriffe for contempt after he is removed out of his office ; and the justices intended that not , insomuch that now he is no officer , and for that he cannot be now fyned , and without fyne they did not use to imprison , but the judges would be advised to see the presidents of the court in such a case . m●chaelmas . . jacobi , in the common bench. kemp , and philip his wife , james , and blanch his wife , plaintiffs , against lawrere and trollop , and the wife of gun●er , executrix , during the minority of the wives of the plaintiffs . the case was , an executrix during the nonage ; for so it was , and not administratrix , that is , shee was ordained executrix , till the wives of the plaintiffs came to their full age , or were marryed , and then they should be executrixes . and this executrix during the minority , brought an action of debt , and recovered ; and before execution the women executrixes took husbands , and brought scirefacias upon the record , to have execution upon the judgment against these defendants as ter-tenants , which pleaded specially that they had nothing in the free-hold , nor in the land , but only a lease for yeares , and that the free-hold was in another stranger , upon which plea the plaintiffs demurred in law. and nicholls serjeant for the plaintiffs , that there is the difference betwixt this executor and an administrator during the minority , as in h. . . a. if an administrator have judgment , and dyes before executors or other have sued out their letters of administration , they shall have no execution of this judgement , insomuch as he comes in paramount the first administrator , and as immediate administrator to the first intestate , as it is agreed in shelleys case . so the administrators of one executor shal not have execution of a judgment given for the executor , as it is resolved in brudenels case , coke , the . b. and in edw. . it is agreed , if two are made joynt-executors , and one of them dies , the other shall be sole executor to the testator : and if hee make his executor , and dyes , his executors shall be executors to the first testator : and also there is in fox & gretbrooks case in the com : that one may be executor for certain years , and another after , and this differs from the other cases ; for in this case all these executors were in privity one to another : but in the other case one comes paramount the other . but here they are all made by the first testator and the will : and he cyted the case in the lord ▪ dyer , and . and , edw. . there cyted , where a purchasor brought a writ of errour , and was not privy to the first record . and grantee of a reversion brought a scire facias against conusee of a statute-merchant , alledging that he had received satisfaction . so if a parson of a church recovers an annuity , and after the church is appropriate to a house of religion , the soveraign of the said house shall have a scire facias . and so if union be made of two benefices , and yet in all these cases there was no privity to the first judgement : so he in reversion shall have errour in attain● upon judgment against his lessee for life , and the reason is given in brudenels case , that is , they which may have prejudice may have scire facias , and it is not like where two joynt-tenants are , and one makes a lease for years , and dyes , the other shal have the rent , insomuch that he comes in by survivorship , and not in privity . but here the executors come in in privity , as in case of two executors are joyntly , one ●yes , the other which survives shall have execution of judgement given for them ; for administrator during the nonage is only to the use , commodity , and profit of an executor , and of a testator : so that he being executor to the testator , he shall have execution . and to the second , that is , that the defendants have nothing but for yeares , and that the free-hold is to a stranger , he intended that this is not good , & yet he agreed that in scire facias where a free-hold is to be recovered , speciall non-tenure is a good plea , as in edw . . and h. . . but not of the contrary , and there also generall non-tenure is no plea : but here where the free-hold is not to be recovered , nor one nor the other is a plea ; for it may be averred that the defendant hath a release from him that hath the reversion : and as in h. . . in scire facias to accompt against an executor who pleads that the testator was never his bayliffe to give an accompt , and yet it is agreed that this hath been a good plea for the first defendant , and this is the reason that it was not taken , nor was allowed for a good plea in the h. . . insomuch that this amounts to non-tenure ; and in . and . eliz. mich. rot. . it was adjudged in scire facias , where the defendant pleads that he was not tenant of the free-hold , and adjudged no plea : and so he said it was adjudged in the case of all-soules colledge , in scire facias to have execution of a judgment in ejectione firme : and the defendant in the scire facias pleads , that he was but lessee for years , and adjudged no plea , insomuch that nothing was to be recovered but only the tearm , and not the free-hold , and so he concluded , and prayed judgement for the plaintiff in scire facias . harris serjeant argued to the contrary , and he intended that the return of the sheriffe is void , insomuch that the writ commanded him to give notice to the tenants of the land in fee-simple , and hee did not return , that those which he had returned were tenants of the land in fee-simple , and so these words of the writ are not answered , and so no tenant is returned at all . and it is not like to the case in h. . for there the return was according to the exigent of the writ , but here it is not so . and to the first matter he intended , and agreed , that an executor of an executor may sue execution had by the first executor , insomuch that hee comes in in privity . but he said , that so it is not in this case , and that there is no difference betwixt this case , and the case cyted in shelleys case , that is , that administrator of administrator shall not sue execution , insomuch that he comes in peramount administrator , and accords with this case , eliz. in the lord dyer : if two joynt-tenants are , and one makes a lease for years , rendring rent , and dyes , the survivor shall not have the rent , insomuch that hee commeth in peramount him ; and to the other he intended , that the speciall non-tenure is a good plea , as well in scire facias to have execution of damages , as of free-hold , as in edw. . . and h. . . and . h. . . it is resolved , that in scire facias speciall non-tenure is a good plea , and the books of h. . . cyted before , there is joynt-tenancy pleaded to one part , and speciall non-tenure to the other part by lease for years , and the question is if it might be pleaded a part : and in edw. . . is scire facias upon recovery by writ of right patent in base court , and that the defendant cannot plead release of the lessor , and so the joyning of the mise may be forfeiture of his estate : and he said that it was adjudged in edw. . scire facias . that scire facias to have execution of a fyne shall not be sued against a lessee for years , but against him which hath the free-hold ; but where debt or damages are to be recovered , there it may be sued against him which hath only lease for years , insomuch that the possession is to be charged ; and so he concluded , and prayed judgement for the defendants , and it is adjourned . michaelmas . . jacobi , in the common bench. crogate against morris . the case was this , copy-holder prescribes to have common in the waste of the lord , and brings action of trespasse against a stranger for his beasts depasturing upon the common there , and harris serjeant argued that this action is not maintainable for two causes . first , insomuch that he is a commoner ; for as it is said by brook justice , . h. . . a. commoner cannot have an action of trespasse , for the common is not common , but after the commoner hath taken that , and then before that he hath taken that he hath no wrong nor damage , but the damage is to the tenant of the land : as if a lessee for years be outed , and he in reversion recovers in assise , hee shall not have damage , insomuch that the damage was made to the lessee , and the assis . . h. . i . b. agreed that commoner cannot maintain action of trespas , nor no other but the owner of the soil , but h. . . by norwich , h. . . h. . . edw. . . commoner may distrain and avow for doing damage . . he intended that this action is not maintainable , insomuch that every other commoner may also have the action of trespasse , for if it be wrong to one , it is wrong to every one of them , and so the stranger shall be infinitely punished , as in williams case , coke , . b. where it was adjudged an action of the case doth not lye for the lord of the mannor to prescribe , that a vicar ought to administer the sacraments in his private chappell , to him , his men-servants and tenants within the precincts of the said mannor , and adjudged that it doth not lye , insomuch that then every of his tenants might also have action , and so the vicar shall be alwayes punished : so in h. . . a. a man shall not have an action upon the case for nusance made in the high way ; so it is ed. . . for trenching in the high way , see h. . . a. accordingly ; and so he concluded that the action is not maintainable , and prayed judgement for the defendant . dodridge the kings serjeant , to the exception which hath been made by the other party , that the plaintiff ought to averr that he hath beasts which ought to common there , and that his beasts have lost their common , that need not to be averred , but it shall be pleaded by the other party ; for if he have distrayned the beasts of a stranger , doing damage , he need to averr no more in this action , and to the other matter , and the two objections which have been made by the other part : first , that the commoner hath no right to the common , till he have taken it by the mouth of his beasts ; to that he said , that the commoner hath right to that before that it be taken by such mouths of his beasts : and notwithstanding that it seems by the time of ed. . that commoner cannot grant his common till he have seisin of that , yet h. . is otherwise , and that a commoner may have an action the name implyes , for he hath common with others , and a stranger which is no commoner cannot do wrong , but this is damage to him ; and he cyted bracton , . that there are two forms of writs , . cursitory writs , . commanding writs : the first of those which are formed , and are of course , and the others such of which there is no form , but are to be formed by the masters of the chancery , according to every particular case : so that there is not any case , but that the law affords a writ and remedy for that , as in edw. . . action upon the case was framed against an officer , which gave priviledge to one as his servant , which was not his servant : and it is not like to the case in h. . . a. where a school-master brings an action upon the case against another for erecting of a school in the same towne to his damage , but this was damage without injury . but here the commoner hath received wrong and damage ; but yet he agreed that the commoner could not have action of trespass why he broke his close , for that is proper for the owner of the soile . but it hath been agreed to him , that he might distrain them , doing damage ; and the reason of that is , insomuch that he hath received damage , and amends may be tendered unto him in recompence of his damages , without any regard to other commoners , as it is agreed in edw. . . and to the objection , that if one commoner may have action , then every commoner may have the action , and so the stranger shall be infinitely punished . and to that he said it is a publique losse and private ; and when the publique wrong includes private damage to any man , there he to whom the private damage is done may have action : and he said , that the register contains many writs for publique wrong , when that is done to private men , as fol. . a man fixes a pale , crosse a navigable river , by which a ship was cast away , and the owner maintained action of trespasse : and fol. . a man brought trespasse against one which cast dung into a river , by which his medow was drowned ; so if the river be infected with watering hemp or flax , he which hath fishing there may maintain action of trespasse : and h. . . action of trespasse by one for ploughing of land where one had a common way ; and so it is . h. . . one brings an action of trespasse against another for erecting a lyme kill where many others are annoyed by that : so by an assault made upon a servant , the master and servant also may have severall actions ; and so in the other cases many may have actions , and yet this is no reason to conclude any one of them , that hee shall not have his action , for in truth those are rather actions upon the case , then actions of trespass , for the truth of the case is contained in the writ . also in this case it doth not appeare that there are any other commoners which have common there , and for that this objection is not to the purpose : and it appears by heisman and crackesoods case , coke . that copy-holder shall have common by prescription in the demesnes of the lord , and so he concluded , and prayed judgment for the plaintiff . coke cheife justice said , that it was adjudged in this court , trinity , ▪ eliz. rot. . b. between holland and lovell , where commoner brings an action upon the case , as this case is , against a stranger which pleads not guilty , and it was found by verdict for the plaintiff , and it was after adjudged for the plaintiff , for insomuch that the plaintiff may take them damage feasant that proves that he hath wrong , and this is the reason that he may distraine ( doing dammage . ) and by the same reason , if the beasts are gone before his comming , he may have action upon his case , for otherwise one that hath many beasts may destroy all the common in a night , and doe great wrong , and sha●l not be punished : and it is not like to a nusance , for that is publique , and may be punished in a leet ; but the other is private to the commoners , and cannot be punished in another place nor course : and he also cyted one whitehands case to be adjudged , where many copy-holders prescribe to have loppings and toppings of pollards , and husbands growing upon the waste of the lord , and the lord cuts them , and one copy-holder only brings his action upon the case , and adjudged that it was very well maintainable , notwithstanding that every other copy-holder may have the same remedy . and he said also , that so it was adjudged in the kings bench , hillary jacobi , rot. . in george englands case : and edw. . b. covenant . if a man covenant with . to make the sea banks with a. b. and every one of them , and after he doth not doe it , by which the land of two is drowned and damnified , and they two may have an action of covenant without the others ; quere , for it seems every one shall have an action by himselfe . but foster and wynch justices seemed that the plaintiffe ought to sue in his court , that the beasts of the stranger escaped in the common , or were put in by the owner , for it may be they were put in by the lord which was owner of the soile , or by a stranger , in which cases the owner of the beasts shall not be punished : but coke and warburton seemed the contrary , and that this ought to be averred and pleaded by the defendant in excuse of the trespasse , as in action of trespasse ( why he broke his close ) and so it was adjourned , see gosnolds case , . see judgment . pasche . . jacobi , in the common bench. henry higgins against george biddle . in replevin the defendant made conusance as bayliff to sir thomas leigh , and daine katherine his wife , intimating that isabel bradburn was seised of the place where , &c. in their demesne as of fee , and so seised the first of june , h. . gives this to the lord anthony fitzherbert , and maud his wife , and to the heirs males of their bodies , which have issue thomas fitzherbert , knight , john fitzherbert , and william fitzherbert , anthony and maud dyed , and the said place where , &c. discended to sir thomas fitzherbert as heire to the donees to the intayl : and the said thomas fitzherbert the . of aprill , edw. . of that enfeoffed humphrey swinnerton , ralph cotton , and roger baily ; to the use of william fitzherbert , and elizabeth his wife for their lives , and after to the use of sir thomas fitzherbert , and the heirs of his body ; the remainder to the use of the right heirs of the said william fitzherbert : william fitzherbert dyed , sir thomas fitzherbert disseised the said elizabeth , and the said john fitzherbert had issue , thomas , and dyed , & sir thomas fitzherbert dyed without heir of his body , and the said place where , &c. discended to the said thomas as cousin & heir of the said sir thomas , and son and heir of the said john fitzherbert , which enters , and was seised to him and to the heirs males of his body , as in his remitter . and the said thomas fitzherbert , of novemb. . eliz. by indenture of bargain and sale enrolled in the chancery within six moneths , bargained and sold the said land to sir william leighton & his heirs , and sir william leighton , of novemb. . eliz. by indenture enrolled within six moneths for . l. bargained and sold the said land where , &c. to sir thomas leigh , and dame katherine , as aforesaid , and so avowed the taking for doing damage . and the plaintiff for barr to the said avowry ; pleads , that well and true it is , that the said sir william leighton was seised of the said place where , &c. in his demesne as of fee , as it was alledged by the defendant : but further hee saith , that the said sir william leighton so being thereof seised , decemb . eliz. enfeoffed the plaintiff in fee , and by force of that the plaintiff was seised , and put in his beasts into the said place where &c. without that , that the said sir william leighton bargained and sold the said land in which , &c. to the said sir thomas leighton , and katherine his wife , as in the conusance hath been alledged by the defendant , upon which the defendants joyn issue ; and it was agreed by all the justices , that notwithstanding this admission of the parties , is an estoppell by the pleading , yet as well the plaintiffe as the defendant were admitted to give another evidence to the jury against their own pleading ; that is , that sir william leighton was not seised , and so nothing passed by the bargain and sale ; and also that sir thomas fitzherbert had the possession by acceptance of the surrender of the estate conveyed to william fitzherbert and his wife , notwithstanding it was admitted by pleading , that he had that by disseisin : and all the justices agreed , that the jury shall not be concluded by the pleading of the parties , insomuch that they are sworn to speake the truth . pasche . . jacobi , in the common bench. brook plaintiff , against cobb . in wast the plaintiff assignes waste in cutting down of . oaks in such a close , and . oaks in such a close , &c. upon the evidence it appears that the said oaks were remaining upon the land for standils , according to the statute ; at the last felling of that , and they were of the growth of . or . years , and that tithes were paid for it . and it was agreed by the lord coke and all the justices , that this was no waste , insomuch it was felled as acre wood : and it was said by the lord coke , that though it be of the age of . or . yeares , yet if the use of the parties be to fell such for seasonable wood , this shall not be waste ; and if tithes be paid for that , it appears that it is no timber . doctor mannings case in the star-chamber . one golding as an informer , and not as party greived , exhibits his bill in the star-chamber against doctor manning , chancellor to the bishop of exeter , for extortion , oppression , and other offences . it was resolved , that when a bill contains any particular offences , and after the same bill contains generall words , which includes many offences of the same kind ; and the plaintiff proves the particular offences , he may examine other particular offences also included within these generall words , in supplement and aggravation of the particular offences contained in the bill ; and if they be proved , the court will give the greater and high sentence against the defendant in respect of them , notwithstanding that they be not particularly expressed in the bill . but if the plaintiff hath not proved any of the offences particularly expressed in the bill , the defendant shall not be censured by the particulars grounded upon the generall words of the bill . and if a man which is not party greived , exhibite bill for offence made to another person , as against whom the offence was committed , he shall not be allowed as witnesse , insomuch as he is party greived , and by that he should be a witnesse in his own cause . pasche . . jacobi , in the common bench. william peacock plaintiff , against sir george raynell . in the sar-chamber the plaintiff exhibits his bill against the defendant for libelling and infamous letters , the which was in this manner , the plaintiff being heire generall to richard peacock which was of the age of eighty six yeares , and had lands of inheritance to the value of . or . pound per annum , and the defendant had married the daughter of sir edward peacock , which was a yonger brother of the said richard peacock , and the said defendant perceiving that the said richard peacock , had purpose to settle his inheritance upon the said plaintiff , and intending to remove the affection of the said richard from the plaintiff , and to settle that in himselfe , writes a letter to the said richard peacock , containing that the plaintiff was not the son of a peacock , and was a hunter of tavernes , and that divers women had followed him from london to the place of his dwelling , and that he did desire to heare of the death of the said richard , and that all his inheritance would not be sufficient to satisfie his debts ; and many other matters concerning his reputation and credit , to that subscribed his name , & this ensealed & directed to the said r. peacock : and it was agreed that this was a libell , and for that the defendant was fined to two hundred pound , and imprisonment according to the course of the court : and the plaintiff let loose to the common law for his recompence for the damages he hath sustained : but if the letter had been directed to the plaintiff himselfe , and not to the third person , then it should not have been a libell , or if it had been directed to a father , for reformation of any acts made by his children , it should be no libell , for it is not but for reformation , and not for defamation ; for if a letter containe scandalous matter , and be directed to a third person , if it be reformarory and for no respect to himselfe , it shall not be intended to be a libell , for with what mind it was made is to be respected : as if a man write to a father , and his letter containe scandalous matter concerning his children , of which he gives notice to the father , and adviseth the father to have better regard to his children , this is only reformatory without any respect of profit to him which wrote it : but in the first case the defendant intended his profit and his owne benefit , and this was the difference . pasche . . jacobi , in the common bench. randall crewe against vernon . in the star-chamber it was resolved : that if the defendant do not performe the sentence of the court , as here he was to make acknowledgement of his offence committed against the court of exchequer at chester , and this acknowledgement was to be made at the great assises at chester , and he did nor performe the sentence , and yet the defendant could not be fined for this contempt , but only imprisonment , and for that he was committed close prisoner till he performed it : but he could not be fined , insomuch there was not any bill , upon which this sentence should be founded . pasche . . jacobi , in the common bench. charnocke against corey , see before . in debt against administrator : the defendant pleades two recognisances acknowledged by the intestate , which were not satisfied , and that he had not any goods or chattells of the said intestate , unlesse goods and chattells which did amount to the debts due by the said recognisances : and it seemed to all the justices , that the plea was not good : but that the defendant ought to plead according to the common forme , that is , that he hath no goods besides or beyond the goods to satisfie the two recognisances , or that he hath no goods to such value , which do not amount to the said sums due by the two recognisances : and in these cases this manner of pleading is implied , confession that he hath goods of such a value , and so they should be assets if the recognisances be discharged , or remaine of covin and fraud to deceive creditor . pasche . . jacobi , in the common bench : bicknell against tucker , see before . the case was : a copy-hold estate was granted to one for life , remainder to another for his life , the first copy-holder for life , accepts a bargaine and sale of the free-hold from the lord , and after that levies a fine with proclamations , and five yeares passe , and then he dies , , and if this fine shall be a barr to him , which hath the copy-hold estate for life in remainder was the question : and it was argued by harris serjeant , that the estate of fines in the body of that binds all persons , but onely some which have infirmities , and by the saving rights , titles , claimes , and interests are saved : but title comes in the conditionall perclose of saving , that is , so that they pursue their title , claime , and interest , &c. by way of act or lawfull entry within five yeares next after the said proclamations had and made : so that in this case the principall matter to be considered is , what thing is operated by the acceptance of the bargaine and sale , for if by that the remainder of the copy-holder be turned to right , then insues that the fine shall be a barr : and it seemes that this determines the first estate for life , and he agreed that it cannot be a surrender , insomuch that there is a mesene remainder , as it is . h. . . b. . h. . . but this lease to commence at a day to come cannot be a surrender , but shall be determined and extinct by acceptance of a new lease , as it is there , and in . h. . . a. agreed and so it was adjudged in hillary . eliz. between wilmottand cutlers case , that if a husband which was seised of a copy-hold estate in right of his wife , accept an estate for life , this determines the copy-hold estate which he hath in right of his wife in possession : so if lessee for yeares accept an estate of one which hath no estate , yet this determines his tearme , as it was adjudged hillary . eliz. rot. . b. that if lessee for yeares of a lease made by the ancester accept an estate of guardian in soccage , this determines his lease , which he had of the ancestor , and upon that he concluded , that in this case the acceptance of a bargaine and sale , turnes the copy-holder in remainder to a right , and then it appeares by saffins case . coke . that he shall be bound though that he hath only interest , and so of title also , and he said that it appeares , by kite and quarintons case , . coke . a. that a right or title may be of copy-hold estate , for it is there said by wray cheife justice , that it shall be with in the statute of h. . chapter . of buying of titles ; and so concluded . dodridge the kings serjeant agreed , that the sole question is if any thing be here done to turn the copy-hold-estate in remainder into a right , for then he agreed that this shall be barred , otherwise not , and to that hee intended , that the first estate for life shall be sayd to be in esse , notwithstanding the acceptance of the bargaine and sale , as to all estrangers , and especially when it is to their prejudice , as if tenant grant rent , and after surrenders his estate , now between the parties , the lease shall be extinct by the surrender , but to the grantee of the rent it shall be sayd to be in esse , and if during his life , he in remainder also grants a rent , hee shall hold the land subject to both the rents , though that the grants be both to one self sameperson , so if he in reversion grants his reversion with warranty , and after the tenant for life surrenders , and the grantee be impleaded , he shall never vouch during the life of the tenant for life , h. . comment . ed. . and here also is a custome which preserves the copy-hold estate in remainder , and their particular tenant cannot that prejudice , and for that also it shall not be turned into a right , as if a copy-hold estate be granted to one for life by one copy , and after the lord grants another estate for life by another copy to another , and then the first copy-holder commits forfeiture , he which hath the second estate cannot take advantage of that , but the lord shall hold it during the life of the first tenant , for no act made by the particular tenant shall prejudice him in remainder , for otherwise many inconveniencies would insue upon that , as by secret conveyances , or as if a grantee of a rent charge , grant that to the tenant of the land for his life , the remainder over , the remainder shall be good , notwithstanding that the particular estate bee extinct and drowned , also he intended that the copy-hold estate is another thing , then the land it self , and for that the fine shall not be a barr , no more then in smith and stapletons case , com. where a fine levied of land shal not be a barr of rent , insomuch that it is another thing , so in this case he intended that the fine shall not be a barr of the copy-hold estate , and concluded , &c. wynch justice was of opinion that the fine shall not be a barr to the copy-hold estate in remainder , for the acceptance of the bargaine and sale doth not determine the first copy-hold estate for life , as to him in remainder but only to the first tenant and the lord , and betweene those he agreed that the copy-hold estate is determined , as in heydens case , by acceptance of a lease for years , and for that the remainder shall not be turned to a right , and by consequence shall not be barred , and for that he supposed that the reason that the fine was a bar in saffins case coke . b. was insomuch that the lessor entered , made a feoffment and after levied a fine , and it is there agreed that the feoffment turnes the estate of the lessee to a right , and for that the fine shall be a barr , and also there the lease was by limitation of time to have a beginning , but if a man makes a lease for years to begin at a day to come , and before the beginning of that makes a feoffment or is disseised , and fine with proclamation is levyed , yet he which hath future interest shall not be barred , for this is not turned to a right , and it was not the intent of the statute of fines to make a barr of right , where there was no discontinuance or estate at least turned to right , and this was the cause that at the common law , fine with non-claime was no barr , but where they make alteration of possession , and he cited palmers case to be adjudged , that a fine of land shall not be a barr for rent , where the case was , lessee for life , remainder for life of rent : the first lessee for life of the rent , purchaseth land and levies fine of that , and adjudged that this shall not binde them in remainder of the rent , no more , if he in remainder levy a fine that shall not prejudice the particular tenant , and so he concluded in this case , that the ramainder shall not be barred and that the plaintiff shall have judgment . warburton justice accordingly , and he argued that the statute of fines containes two parts . the first , to barr those which have present right , and they ought to make their claim within five yeares after the fine levied , or otherwise they shall be barred . and the second those which have right , title , or interest accrued , after the fine levied , by reason of any matter which preceded the fine , and in both cases the estate which is barred ought to be turned into a right , or otherwise it shall not be barred , the which cannot be here , for the estate is given by the custome , and it is to have his beginning after the death of the first tenant , and though that the first tenant commit forfeiture , yet he in remainder cannot enter , for his time is not yet come , as in ed. . is a collaterall lease with warranty to the tenant for life in possession , this shall not be a barr , insomuch that it is made to him which hath possession , so if a man make a feoffment upon condition , and the feoffee levy a fine with proclamations and five yeares passe , and the condition is broken , the feoffee may enter at any time , otherwise if the fine had been levied after the condition broken , and so if the lord be intitu●ed to have cessavit , and fine is levied by the tenant and five yeares passe , he shall be barred , and this was the cause of the judgment in saffins case , insomuch as the lessee had present interest to enter , and this was altered into a right by the feoffment , and then the fine was a barr , but here he in remainder hath no right till after the death of him which was the first tenant , and then his right to the possession begins , and then if a fine had been levied with proclamation this shall be a barr , and so he concluded , that judgment should be entered for the plaintiffe . coke cheife justice accordingly , and he agreed also that the sole question is , if by acceptance of a bargaine and sale by the first tenant for life , the remainder be turned into a right , and he sayd , that right sometimes sleepeth , but it never dyes , but this shall be intended ( the right of the law ) and not right of land , for that may be barred by writ of right at the common law , and he intended that copy-holdes are within the statutes of fines , be they copy-hold for life , yeares , in tayl , or in fee , for the third part of the realme is in copy-holdes , and two parts in lease for yeares , and if these shall not be within the statute , then this doth not extend to three parts of the realme , and it is agreed in heydons case coke . a. that when an act of parliament doth not alter the tenure , service , interest of land , or other thing in prejudice of the lord or of the custome of the mannor , or in prejudice of the tenant , there the generall words of such act of parliament shall extend to copy-holds , and also it is resolved to be within the statute of h. . of maintenance , and also it is within the expresse letter of this , which containes the word interest , and copy-holder hath interest and so also of tenant by statute merchant , then the question will be , if the acceptance of a bargaine and sale turnes that to a right , and he intended that his estate for life remaines , though that it is only passive in acceptance of bargain and sale , and for that it shall not be prejudice more then if tenant at will accepts a bargaine and sale , for his estate at will , this notwithstanding remaines , but if lessee for years or life , accepts a fine upon conusance of right , this is a forfeiture , insomuch that it is a matter of record , and it shall be an estoppel to say that he did not take fee by that , & doth not admit the reversion to be in another , also insomuch that the bargain and sale was executed by the statute for this cause it shall not be prejudice , as it was adjudged in the lady greshams case in the exchequer , eliz. where two severall conveyances were made with power of revocation upon tender of ten pound , and adjudged by act of parliament that a revocation was good , and also that no license of alienation shall be made , insomuch that it was by act of parliament , which doth no wrong , and it is for the trespasse , for which the party ought to have license , and if it be not trespasse there need no license before hand nor pardon afterwards : so if a man makes a lease for yeares , remainder for yeares , the first lessee accepts bargaine and sale , this shall not turn these in remainder to prejudice . thirdly it seemes to him also , that notwithstanding the acceptance of the bargain and sale , the first copy-hold estate for life remains in esse , and is not determined . for this differs from an estate of land , for it shall not be subject to a rent granted by the lord : the first estate remaines , till all the remainders are determined , for the first tenant for life cannot surrender to the lord , also it is customary estate , for by the common law this being granted to three successively , this shall be determined and extinct for the third part , for they three take into possession , and the word successively , shal be taken as void , but here the custome appoints , that the remainder shall not have his beginning , till the death of the first-tenant , and that they should take by succession , and for that there is a difference between this customary estate , and other estates at the common law , and other surrenders , for if a copy-holder surrender to the use of another for life , nothing passeth but for life only , the lord hath not any remainder by this surrender , and if this tenant for life commits forfeiture , he in reversion shall not take advantage of that , and if at the common law tenant for life , remainder for life or in fee be , and the first tenant for life makes a feoffment , and after levies a fine , and resolved that he in reversion should not be bound till years are incurred after the death of the . tenant for life , for then his title of entry first accrues in apparancy , and before that is in secrecy , of which he in remainder is not held to take notice , and so in this case he in remainder shall not be bound till five yeares are incurred after the death of the first tenant , and the rather insomuch as the first estate remaines , for that that the first tenant was only passive and not active , and so he concluded that judgement shall be given for the plaintiff , insomuch that the fine was no bar , and upon this concordance of all the three justices in opinion , no other justices being present this tearm judgment was entered accordingly . pasche . . jacobi , in the common bench. danyell waters against the deane and chapter of norwich . in covenant , the case was this in h. . the then deane and chapter of norwich made a lease to one twaits for fifty yeares , which ended eliz. in time of ed. . the then dean and chapter surrendred all their possessions to the king , which those newly endowed , and incorporated by the name of deane and chapter of the foundation of ed. . and in the . eliz. salisbury then deane and the then chapter made a lease to thimblethorpe for . yeares to begin after the said lease for fifty yeares made to twaits : and it doth not appeare by the pleading ; that thimblethorpe entred : but the succeeding deane and chapter in the . eliz. made another lease to waters the plaintiff for three lives , rendring the ancient rent quarterly , with warrant of attorney to make livery , and it was not executed till after the end of three quarters of a yeare after the sealing of it , and when the time of three rent daies were incurred : and in this lease the deane and chapter covenanted with waters to acquit and save harmelesse the lessee and the premises during the tearme , &c. by reason of any lease made by them , or any of their predecessors or by the bishop : and then the plaintiff in his court , conveys the lease made by thimblethorpe to doylye , and that he intered and disturbed the plaintiff , and so assigned breach of covenant , upon which this action was founded , upon which the defendants demurr in law : and this was agreed by dodridge the kings serjeant for the defendants . first that the lease made to waters was void , and then the covenants do not extend to charge the defendants : and he supposed the lease to be void , insomuch that the attorney did not make livery ; untill three rent daies were incurred , and the lease was made as well for the benefit of the lessor , as for the lessee , for if the lessee is to have the profits and the lessor is to have the rent : and insomuch that the livery was not made before a rent incurred , this tends to the prejudice of the lessor , and for that the authority is countermanded , and the livery made after void , for when a man hath a letter of attorney to make livery , he ought to make that in such manner , as the feoffer himselfe would make it , and the lessor cannot make that after a rent incurred , for then he should loose that rent : also authority ought to be strictly pursued , as in . h. . dyer . . letter of attorney was made to three joyntly and severally to make livery , and re●…ved that two cannot do it , see . h. . for it ought to be made joyntly or severally , so here the attorney ought to make the livery as his master will , and that ought to be made before any rent incurred : and for this cause he intended the lease to be void : and then as to a collaterall covenant , which is in effect no other , but that the plaintiff shall injoy the land during the tearme , which is of an estate which is nothing , for if the lease be void , the estate is nothing , and the lessee hath not any tearme or estate in the land : and he agreed that in the record of chedingtons case , coke . b. and in the commentaries , wrotsleys case . and . eliz. dyer . there is a difference betweene tirminum annorum , and the time or space of yeares , or the life of such a man , but there is not any difference between a tearme and an estate : also he supposed that the words of the covenant extend only to save the plaintiff harmelesse of leases made by these defendants or any of their predecessors , and this lease was made to twaits in time of h . which was before their corporation , for they have been but named a corporation in the time of edward . and not before : and then a lease made in the time of h. . is not made by them nor by their predecessors , and so the covenant doth not extend to that , as it appeares by . ed. . in case of prescription , if corporation be changed in manner and forme , and the substance of their name remaine , yet they ought to make speciall prescription , then a fortiori in this case , where the substance is changed ; and so he concluded , and praied judgement for the defendants . nichols serjeant for the first argued , that the livrey was well made , for these defendants shall be intended occupiers , and to have the profits of the land till the lessee entred or they waved the possession , and so no prejudice , and the lessee shall not be charged with rent till he enters , or the lessor wave the posaession , as it was resolved in bracebridges case com. . b. and in the deane and chapter of canterburies case there cited : and for that the livery shall be good , and the lessor not prejudiced by the deferring of it , and then to the second , that is the covenant , he agreed that if the estate be created , and covenant in law annexed to it , if the estate cease , the covenant also shall cease : but if expresse covenant be annexed , then the covenantor ought to have regard to performe it , or otherwise an action of covenant lies against him , notwithstanding that the estate be avoided : but here he intends it against him notwithstanding that the estate be void : but here he intends the estate continues till thimblethorp entred : but admitting that he had entred , yet the covenant shall bind the covenantor , as in . h. . . a. parson makes a lease for yeares , and after is removed ; an action of covenant lies against him , and . ed. . and . ed. . if tenant in 〈…〉 makes a lease with expresse covenant and dies , and the issue outs the lessee , the lessee shall have an action of covenant against the executors of the tenant in tayl , and . eliz. dyer . . tenant for life , the remainder over in fee , by indenture makes a lease , without any expresse covenant and dies , lessee cannot have an action of covenant against his executors , otherwise if there had been an expresse covenant : see the booke and many authorities there cited to this purpose , and also he cited one rawlinsons case to be here adjudged , that if a man which hath nothing in land makes a lease , and an expresse covenant for the injoying of that , if he which hath right enters , by which the covenant is broken , action of covenant lies upon the expresse covenant : so that admitting that the lease is void , yet the covenant is good and shall bind the successors ; and so he concluded , and praied judgement for the plaintiff , and this case was argued at another day by dodridge the kings serjeant , by speciall appointment of the judges , and now he supposed , that the count containes that the same dean & chapter which made the lease to twaits in h. . also made the lease to thimblethorp in the el. w ch cannot be , insomuch that the corporation was changed in the time of e. . & for that cannot be the same deane and chapter , for if a prior covent be translated into a dean and chapter , and the dean and chapter will make prescription , they ought to make that in speciall manner , and not generally as deane and chapter , as it is resolved . h. . . . and in . ed. . . in trespasse against the abbot of bermondsey , it is agreed that the prior was not predecessor to the abbot , as it appeares by . and . eliz. dyer . , , . that the deane and chapter of norwich made a surrender in the time of ed. . and then newly incorporate ▪ so that he which made to twaits in the . h. . could not be predecessor to the deane and chapter which made to thimblethorp in . of eliz. for he could not then be any predecessor , and for that the lease to thimblethorp void , and then there is no eviction , but wrong to the plaintiff , for which he may have an action of trespasse , and then he cannot have an action of covenant , as it appeares by . h. . against the lessor : but admitting that the lease to thimblethorp were good , then this hath his beginning in the . of eliz. and makes the lease for three lives to the plaintiff void by the statute of . eliz. insomuch that the aforesaid lease for yeares was then in beginning , and the statute is expresly that it shall be void , as the grant of next avoidance of a church in the case of the bishop of lichfeild and coventry against sale cited in lincolne colledge case . coke , as if a parson makes a lease for yeares , and is non-resident , the lease is void by the statute against the parson himselfe , and then if the estate be void , all covenants which depend upon that are also void : also he supposed that there is not any good conveyance of the estate of thimblethorp to doyley , which is intended to be the disturber to make the covenant to be broken ; and then when doyley entered without title , the covenant cannot be broken , and so he concluded , and prayed judgement for the defendants . nichols serjeant for the plaintiff agreed , that if there be an alteration of corporation , and title is to be made by prescription , it ought to be so specially shewed as it hath been said of the other part by dodridg . but here it is not so , for the same dean and chapter which made the lease to the plaintiff , made the lease to thimblethorp , and this appears by the pleading ; and the lease made to twaits is not mentioned , but only to shew the beginning of the lease to thimblethorp : and then the deane and chapter which made the lease in of eliz. to thimblethorp ; were the same deane and chapter which made the lease in . eliz. to vvalters . and hee supposed the covenant being expressed , this remains ; otherwise if it had been a covenant created only by the law , as it appears by the books of . eliz. dyer , . . and h. . . and also when a covenant is created by law , the covenantee cannot have covenant , if he be not outed by one which hath title , h. . . otherwise of expresse covenant , as it is agreed in the h. . . so in . edw. . covenant lies against executors : and edw. . covenant lyes against heir being made by tenant in tayl , if the lessee be outed after his death ; and so hee concluded , and prayed judgement for the plaintiffe . wynch justice supposed that judgement should be given for the plaintiff , and that he had good cause of action ; and he intended that the livery and seisin by the attorney , after rent incurred , was good . secondly , that the covenant shall extend to the lease made to thimblethorp ; for it doth not appeare , but that it is the same deane and chapter , which was in time of h. . for it is not pleaded that it was founded by ed. . but had his name by him . and also it is confessed by the demurrer , that it is the same deane and chapter , but admitting that it is not , yet it may be answered , as it hath been by nichols before , that is , that the deane and chapter which made the lease in of eliz. to thimblethorp , is the deane and chapter which made the lease to the plaintiff in the of eliz. are all one : and the lease to twaits is shewed only , to shew the beginning of the lease made to thimblethorp . also he supposed the conveyance of thimblethorps estate to doyley to be good ; and it doth not appear but that the deane and chapter were in possession at the time of the making of the lease for lives : so that this hath a good beginning , and continued till it was avoyded by the entry of the succeeding dean , for this remains good against the deane that made it : but thimblethorp also may avoid it during his tearm , and now here is eviction by the assignee of thimblethorpe , before that the l●ase be avoyded by the succeeding deane and chapter , where the deane himselfe could not avoid it , for he is the party which made it : also here is expresse warranty against the lease made to thimblethorp , and for that also action of covenant lyes , otherwise if it had been only warranty in law , as if lessee for life had made a lease for years , and dyed : upon the covenant in law action doth not lye , for the law doth not constrain to impossibilities , as in the . ed. . covenant that the wind shall not peirce nor break the trees : and ed. . ed. . action of covenant lies upon express covenant , though that a stranger enters without title , and he cyted one dormans case to be adjudged , that where a man borrows money upon a usurious contract , and the principall gives security to the surety that was bound with him by collaterall obligation : and the surety being arrested , takes advantage of the counterbond , notwithstanding that the principall obligation was void by the statute of usury . so here , notwithstanding that the estate was void , and that is the principall : yet the covenant being expressed , and collaterall , shall bind the lessor , and so he concluded that judgement shall be given for the plaintiff . warburton justice to the contrary , and yet he agreed that the livery was good , notwithstanding that it was made by the attorney , after three rent dayes incurred , and he seemed that it might be made at any time during the tearm and the lives of the parties . and also he agreed that the corporation shall be intended the same corporation , and yet corporation had no predecessor nor successor : but the statutes say , predecessors , antecessors , and progenitors of the king , as h. . ed. . h. . but he did not insist upon that , but agreed that : but the matter upon which he insisted , was , that the lease to the plaintiff was void against the succeeding deane and chapter , insomuch that the lease to thimblethorp was in esse at the time of the making of that , and this by the statute of eliz. and it appears that the deane which made the lease to the plaintiff is dead , for he is named in the count , the late deane ; and then when the covenants depend upon the estate , be they expressed , or in law , these determin and end with the estate , as in lemons case , h. . dyer . . resolved , that where the statute of h. . makes leases being in the hands of spirituall persons void , this avoids these covenants also which depend upon the lease . so if a parson make a lease and covenant that he will not be non-resident , and binds himselfe for the performance of that , if the covenants be released , the obligation also is released . so if the lease be avoyded , the covenants also are avoyded : and as an action of covenant doth not lye for the not injoying of land after a surrender , so covenant doth not lye after the estate is avoyded , see h. . and to the case put by wynch of counter-bond , where the principall was void by the staiute of usury : he said that there the obligation was not void , but voidable by plea. but here it is , the estate is made void by the express words of the statute : and he intended that this difference between expresse covenant , and covenant in law , but that the one determines with the estate as well as the other , and yet he agreed that express covenant shall extend to charge the covenanter upon entry by a stranger , which hath no title ; but yet this doth not charge the lessor after the estate determined , and so he concluded that judgment ought to be given for the plaintiff . coke cheif justice accorded with wynch that judgment shall be given for the plaintiff : and he supposed that the livery was well executed by the attorney after the rent dayes incurred : and yet he agreed that it had been a probable objection made against that : but he supposed that the lessor was not prejudiced , insomuch that the law intends that they had the possession and the profits of the land till livery made , and the attorney is only as a servant to the lessor : and he said , that this is not like to cromwels and andrews case , of grant of a mannor upon condition to re-grant advowson or rent , in which cases the advowson or rent ought to be re-granted , before that the church becommeth void , or the rent day be incurred , insomuch that they are followers of the thing granted , notwithstanding that the feoffee hath time during his life to make the re-grant , if it be not hastned upon request . . he supposed that the express covenant shall bind the lessor , though it be referred to the tearm ; for tearm includes estate and interest , but this is when it is tearm ; but when it is no estate , then it shall be intended during the continuance of the years , as it appears by the rector of chedingtons case : and this he held clear , and so of promise also , as if a man makes a lease for years , and before that the lessee enters , makes a lease to another , and promises that the second lessee shall enjoy during the tearm , if the first lessee enter , the second lessee may have an action upon the promise , and he said that it was adjudged in the kings bench , hill. eliz. between foster and wilson , plaintiffs , and mayes , defendant ; where the case was , a man made a lease of a rectory for years , and covenanted with the lessee to save him harmlesse against one blunt parson of dole , which entered and outed the lessee , which brought covenant against the lessor , and resolved that it lyes notwithstanding that it doth not appear whether he had interest or no : so that be the lease good or void : yet when there is an eviction , covenant lyes , though the lease be originally void , yet till it be avoided , it shall be intended a good lease : and if a covenant of dean and chapter doe not bind them , none will take lease of them , so they shall be compellable to plow the land themselves , and also he supposed that the lease was good against the succeeding dean and chapter , till it be avoyded by entry , as it was adjudged , trin. eliz. between elmer and page , where a bishop made a lease for years , and dyes , the successor makes a lease for lives , the lease for years not determined : and it was resolved that the lease for lives was void , notwithstanding that the bishop might make a concurrant lease for years , which is not made void by the statute of eliz. insomuch that the statute is in the definitive , that is , leases for lives , or years , and so they cannot make both , for then the lessee for life should have the rent reserved upon the lease for years , which is setled in the lessee for lives , by the regress of the lessee for years : and so he said also , notwithstanding that the statute of eliz. made void all leases made by deane and chapters , where there are more then years in being ; he agreed that a lease for years , where there are so many years in being is good : but if there be but two years in being , that makes the lease for life void . and he agreed that notwithstanding the statute , yet any lease shall be good against the deane himselfe , insomuch that he is party to that , and hath a negative voyce in the making of that : and he seemed that the proviso in the statute of eliz , did not extend to leases in possession , but to leases in reversion , which are dormant , of which a stranger cannot take notice , insomuch that they are invisible ; and for that , if a dean and chapter procure surrenders of them , and within years , that shall make another lease good , and so they shall save their covenant ; and for that the lease here made to the plaintiff had been good , if the defendants had procured the lease made to thimblethorp to be surrendred within years after the taking of that . also he cyted the case betwixt the bishop of lychfield and coventry , and sale to be adjudged , michaelmass . and . eliz. that a grant of the next avoydance is good against a bishop himself that granted it , and not made void by the statute of eliz. as to him , but to all successors only . and so in this case he said , they all agreed that the lease was not void which is made to waters against the deane himself which made it , but only against the successor . and he said also , covenant in law extends to lawfull evictions , and to estates in being , and not where an estate is determined , as if lessee for life makes a lease for years , and dyes , the lessee shall not have an action of covenant upon covenant in law , as it is agreed in eliz. dyer , and h. . before cyted . so also he supposed to express reall covenants which extends to free-hold , or inheritance , as warrant and defend , upon which a man cannot have an action , if he be not outed by one which hath title ; and as in edw. . . and . a man makes a feoffment with warranty , nonfeoffavit , is a good plea ; for if the feoffment be avoided , the warranty also is avoided , for that depends upon the feoffment . but if a man makes a lease for years , and covenants that he will warrant and defend the land to the lessee , if the lessee be outed by one which hath title , or without title , he may have an action of covenant , for the lessor hath the evidences , and ought to defend the possession of his lessee , and the right also , and damages are only to be recovered ; and so is the difference between a lease and inheritance , though that the words of the covenant are all one . and also he said that it may be objected , that the incorporation ( was not well pleaded ) by edw. . insomuch that he doth not say after the conquest , for ed. . was ed. . in truth , sor there were edwards before the conquest , and he was the third after : and he saith that he hath known many exceptions to be taken to that , but hath not known any of them to be allowed , and for that he will not insist upon it . but the principal matter upon which he insists , was , that it doth not appear by the pleading , that the deane which made the lease was dead : and it appears by the pleading , that he entered in jacobi and was seised , and then of necessity ought to be living ; and such averment of his life is sufficient , as it is agreed in the eliz. dyer , where a parson made a lease for years , and the lessee brought an ejectione firme , and in pleading it was said ; that the parson is seised of the reversion , and this was allowed to be good without other averment of his life , for he cannot be seised if he be not living : and then if the deane shall be intended to be living , then they all agreed that the lease shall be good against him ; for it was adjudged in this court between blackeleech and smal , that if a bishop makes a lease for years , and after makes a lease for life , the lease for years being in esse , and dyes , and the successor accepts rent , this shall bind him : and by this it appears that the lease was good against the dean himself which made it , and also against the successor , till he enter and avoid it , and then by consequence the action of covenant shall be very well maintainable , and so he concluded also that judgement should be given for the plaintiff , which was done accordingly . pasche , . . jacobi , in the common bench. browning against strelley . michael . jac. rot. . in debt , the margent of the count contains nottingham , and the count it self contains that the obligation was made at the town of nottingham , which is a county of it self , and the defendant pleads non est factum , and the view was of the town of nottingham , and it was tryed by the jury of the county of nottingham , and this was moved in arrest of judgment after verdict for the plaintif , by nichols serjeant . and it was agreed by all the justices , that judgment shall be given accordingly to the verdict , insomuch that notwithstanding that the town of nottingham is a county of it self , yet it may be that some part of the town may be within the county , and for that possibility they would not arrest the judgment . ireland against smith . in action upon the case for these words , the plaintiff counts that he was , and is proctor in the arches : and in communication between one morgat and the defendant of him , the defendant said to the said morgat , you take part with ireland against me , who is an arrant papist , and hath a pardon from the pope , and can help you to such an one if you will : and after verdict it was moved by hutton serjeant in arrest of judgment , that the action doth not lye ; and he saith , that it hath been adjudged in this court , jacobi , rot. . between kingstone and hall , that an action doth not lye for like words , he is an arrant papist : and it were good that he and all such as he is were hanged , for he and all such as he is would have the crowne from the kings head if they durst : and it was adjudged that an action doth not lye for these words , which are more strong then the words in this action : but of the other part it was said by haughton serjeant that he did not insist upon these words , that he is a papist , but that he had obtained a pardon from the pope , the which by the statute of eliz. is made high treason , and then notwithstanding that no time was limited when the pardon should be procured , that is before the statute or after , yet it shall be intended such a pardon which is against the statute ; for the presumption of the law shall be taken in the worst sense , and not like to the case , where a man saith to another , that he hath the pox : and also it is alledged by the count , that the plaintiffe is not above the age of . years , so that he cannot obtain a pardon before the statute of eliz. and for that he supposed that the action is very well maintainable . coke cheif justice said , that it was adjudged in the kings bench in the time of catlyn cheife justice there ; that an action upon the case doth not lye for calling a man papist . and winch justice said , that if a man call a bishop or another man which is trusted with government of the church , and ecclesiastical causes , that he thought the action lyes , otherwise not . also he supposed that the pardon might be for purgatory , or other matters which are not within the statute of eliz. and also the pardon may be procured by another , and come to his hands by delivery over afterwards that it had passed two or three , and the averment is not sufficient , for it is onely implication and inference , coke and warberton justices sayd , that a papist is one that errs in his opinion , and though that the papists are authors of many treasons , yet the law doth not intend so , and so of heretick , which is alwaies in a fundamentall point of religion , and yet an action doth not ly for calling a man heretick , also the pope is a temporall prince in italy , and for this cause also may pardon , and this is out of the statute of eliz. and so they all agreed that the action doth not ly for these words . pasche . jacobi , in the common bench. marstones case . in a common recovery the tenant appears by attorney , and vouches one which is present in court , which appears , and vouches the common vouchee , and the attorney hath a warrant of the party acknowledged before a judge , but this was not entred of record , and this was in hillary tearme eliz. and it was moved by dodridge the kings serjeant , that the warrant of attorney might be now amended and entred upon the record , and coke supposed cleerly that it shall not be entred , insomuch that it is a want of a warrant of attorney , but if there had been a mis-construing of the warrant of attorney , otherwise it is , for this seems to be within the statute of eliz. chapter . concerning amendments . in debt upon an obligation with condition to perform covenants in an indenture of lease the defendant pleads , that after and before the originall purchased , the indentnre was by the assent of the plaintiff , and the defendant cancelled and avoyded , and so demands judgment if action , and it seemes by coke cleerly , that the plea is not good without averment that no covenant was broken before the cancelling of the indenture . pasch . . jacobi , . in the common bench. barde against stubbing . it was moved in arrest of judgment , that the venire facias wants these words , et habeas ibidim nemina juratorum , but the words , venire facias duodecim , &c. were incerted , and it seems by all the justices that it was good , and that the first words , are supplyed in the last , and they are aided by the statutes of jeofai es , after verdict , and so it was adjourned . in audita querela sued by the sureties upon an escape made by the principall , they being in execution offered to bring the money into the court , or to put in sufficient sureties to the court , and so prayed that they might be bayled , and it was agreed , that if audita querela be grounded by specialty or other matter in writing , or upon matter of record , supersedeas shall be granted before that the party be in execution , and if he be in execution he shall be bayled , but if it be founded upon a matter in deed , which is only surmise , he shall not have supersedeas in one case , nor shall be bayled in the other case , and so was the opinion of all the justices . in an action of waste for digging of earth to make brick , estrepement was awarded , and upon affidavit ; that the writ of estrement was delivered to the sheriff , and that he gave notice of that to the party , and he notwithstanding that continues to make waste , attachment was awarded . pasch . iacobi , . in the common bench. fetherstones case , trinity . in ejectione firme , the plaintiff had judgment , and an habere facias possessionem to the sheriff of coventry , which returnes that he had offered possession to the plaintiff , and he refused to accept it , and it seems that the plaintiff cannot have habere facias possessionem , insomuch that it appeares by the record , that he hath refused to have the possession . the case was , a dean and chapter being lord of a maunor , parcell of the demesnes of the mannor being severall , adjoyned to the common , which was parcell of the wast of the mannor , and one copy-holder which had common in the sayd wast , puts his beasts into the sayd waste to take his common , and they for default of inclosure escape into the sayd demesnes , by which the lord brings his action of trespass , and upon this the defendant pleads the speciall matter , and that the lord , and all those whose estate he had , in the said place where the trespass is supposed to be made , have used to fence the said place which is parcell of the demesnes of the sayd mannor , against the commoners which have common in the sayd common , being parcell of the waste , and also of the demesnes of the sayd mannor , and that the beasts of the sayd defendant , escaped into the sayd place in which , &c for default of inclosure , and so demands judgment , upon which the plaintiff demurrs in law : in the agreement of which , it was agreed by hutton and haughton the serjeants which argued it , whether a man by prescription , is bound to make fence against commoners , as it is agreed in the h. . . . h. . . but the doubt which was made in this case by haughton which demurred was , for that that the lord which by the prescription ought to inclose is owner of the soyle also , against which he ought to inclose , and so he ought to inclose against himself , and for that he supposed that the pleading should have been , that there is such a custome there , and of time out of minde that the lord shall inclose against the common , insomuch that by that the copy-holder would bind the lord , and upon that it was adjourned , &c. pasch jacobi , . in the common bench. sir henry rowles against sir robert osborne and margeret his wife . in warrantia charte , the case was , sir robert osborne and his wife levyed a fine of the mannor of kelmersh , with other lands in kelmersh , to sir henry rowles , against all persons , and this is declared for the lands in relmersh to be to the use of sir henry rowles for life , with diverse remainders over , and for the mannor no use was pleaded to be declared at all , and then a writ of entry in the post was sued against the sayd sir henry rowles which vouched sir robert osborne , and his sayd wife● ; and this was declared for the sayd lands to be to the use of the sayd sir henry rowles for his life with other remainders over , which were declared upon the fine of the lands in kelmersh only , and of the mannor of kelmersh no uses were declared , upon the recovery also , and upon this recovery pleaded in barr the plaintiffe demurred , and it was argued by dodridge serjeant of the king for the plaintiffe , that the plea in barr was not good , insomuch that it doth not appeare that the warranty which was executed by the recovery was the same warranty which was created by the fine , and also the fine was taken for assurance against the issue in tayle , and the recovery to barr the remainders , and so one shall not destroy the other , and for the first he sayd , that a man may have of another severall warranties , and severall causes of voucher and all shall be together , for warranty is but covenant reall , and as well as a man may have severall covenants for personall things , as well he may have severall reall covenants for one self same land , as if the father infeoff one with warranty , and the sonn also releases to the same feoffee with warranty , or if the father infeoff one with warranty against him and his heires and the sonn release with warranty against all men , the feoffee may vouch one , and rebut against the other , so of warranty of tenant in tayle and release of an ancestor collaterall with warranty in law , and expresse warranty , as it is agreed in ed. . fitzh . voucher . and upon that he concluded that a man may have severall warranties of one selfe same man , and the one may be executed and the other remaine , notwithstanding that it be for one selfe same land , and he supposed the effect of these warranties are as they are used , for if that may vouch generally , and bind himselfe upon the fine or upon his owne warranty , or upon the warranty of his ancestor , notwithstanding that the voucher be generally , as it is . ed. . warranty of charters . so if he be vouched as heire , though that it were speciall , but if he be heire within age otherwise it is , for that is a good counter plea that he was within age , and so praied ( that the word might demur ) during his nonage , . ed. . counter plea of voucher . . ed. . . then he supposed here was generall warranty which is executed , and also another warranty which remaines , notwithstanding any thing which appears to the court , for he hath not demanded any binding , . ed. . . a. b. also the warranty in the fine is the warranty of all the conusees , and the warranty upon which the voucher is , is only the warranty of sir robert osborne , which cannot be intended the same warranty which is contained in the fine which is by two , as it is resolved in . ed. . . but admitting that it agrees in all , that is the voucher and the warranty in the fine , that is , in number of persons and quantity of land and all other circumstances , yet it shall be no barr , for the common recovery is only as further assurance , for it is for forfeiture if it be suffered by tenant for life , as it is resolved in pelhams case . coke : also he supposed that notwithstanding that the fine was levied hanging the writ of entry , and ●o sir henry rowles made tenant , yet this is good being by purchase , but not if it be by discent or by recovery upon elder title : and he supposed that if the recovery and the warranty might be together by any possible meanes , they shall not be distroied , insomuch that this is the common case of assurance , and for that shall be taken , as in pattenhams case . and . phil. and mary dyer . and . coke . cromwells case . b. where a man makes a feoffment upon condition rendring rent , and after suffers common recovery , and yet this notwithstanding the condition and rent remaines : and so it seemes that in this case the warranty remaines notwithstanding the recovery ; and so he concluded , and praied judgement for the plaintiff . nicholls serjeant for the defendant , and he seemed that the warranty is destroied , first insomuch that the recovery was to other uses , and the fine was when proved that there was no further assurance , also he supposed , that insomuch that it doth not appeare to what use the recovery was for the mannor of kelmersh , that for that it shall be intended to the use of sir robert osborne himselfe , and then for that also the warranty is distroied , insomuch that part of the land is re-assured to sir robert osborne , as in . ed. . . the father enfeoffes the son with warranty , which re-enfeoffes the father , this destroies the warranty : so if they make partition by their owne act , as it is agreed in the . ed. . also he supposed that the tenancy in sir henry rowles is distroied before that the fine was levied , insomuch that this was executed by voucher , and so he did not purchase hanging the writ , for this is also conveied from him by the recovery in the value before that the fine is levied , and it is all one with the case , where a man recovers upon good title hanging a writ , and he agreed , that the recovery had been for further assurance , that then it shall be as it hath been objected by the other party , and the warranty had remained , but this he supposeth , it was not , insomuch it was to other uses then the fine was , and he intended that if the estate to which the warranty is annexed be distroied , the warranty also shall be distroied , . h. . . . h. . . . h. . . and . so if the estate be avoided the warranty is distroied , if it be by the act of the parties named , also he supposed that the warranty is executed , and that it shall be intended the same tye upon which the warranty is created as it is . ed. . . mauxells case com : if he demand no tye but enter generally into the warranty , there shall be execution of all warranties and shall bind all his rights , for otherwise all the estates tayl cannot be bound by that : but where the ( lieu ) is demanded as where there are three severall estates tayl limited to one man , and upon voucher he enters generally into the warranty , all the tayles shall be bound , but if he demand the lieu's which he hath to bind him to warranty , there shall be a barr of that only , upon which the voucher is , and the remedy is , that if he be impleaded by the party , that hath made the warranty , he shall be rebutted by his owne warranty : but if he be impleaded by a stranger he shall vouche him that warranted that , and if warranty be once executed by voucher and recovery in value , though that the land recoverd in value be a defeasable title , yet the party shall not voucheat another time by the same warranty , as it is . ed. . fitz. voucher . and . ed. . . and for that in this case , insomuch that the warranty was once executed , he shall not vouche againe upon the same warranty : also it is not alledged in the count that the plaintiff was impleaded by writ of entry in the post , but in the per , in which he might have vouched , and so shall not have this action , where he might have vouched : and also he supposed that sir henry rowles shall not have benefit by this warranty without praying aid of those in remainder , insomuch that he is but tenant for life , but he supposed that it was no remainder but reversion , for otherwise they are but as an estate , and he may have advantage of the warranty , as it seemes without aid praying : but not where there is tenant for life with the reversion expectant ; and so he concluded , and praied judgement for the defendant : and he cited one barons case , where tenant in tayl levies a fine with warranty , and after suffers recovery : and it was agreed by all the justices , that yet the recovery shall be a barr to the remainder , notwithstanding that the estate tayl be altogether barred and extinct by the fine , but coke cheife justice said ; that wray● cheife justice would not suffer that to be argued , insomuch that it was of so great consequence being the common course of assurances : but it seemes that the recovery shall not be a bar● for the remainders for the causes aforesaid , and he said that he was of councell in bartons case , and thought this objection to be unanswerable , and of this opinion continued . pasche . . jacobi , in the common bench. richard lampitt against margeret starkey . ejectione firme upon speciall verdict , the case was this ; lessee for five hundred yeares , devised that to his father for life , the remainder and residue of that after the death of his father to his sister , the devisor dies , the sister which hath a remainder takes a husband , the husband at the request of the father grants release , and surrenders all his right , tearme , and intrest , to the father which had the possession : and the question was ; if by that the remainder of the tearme should be extinct or not : and it was argued by dodridge for the plaintiff , that the remainder remaines that notwithstanding , insomuch that this is a possibility only , which cannot be granted surrendred or released , and yet he agreed , that if lessee for life grant or demise the land , all his estate passeth without making of any particuler mention of it , as it is agreed in . eliz. dyer . and for that when the lessee hath devised the lands to his father for his life , that which remaines is only a possibility , for it doth not appeare for what yeares the sister shall have it , and for that meerely uncertaine , . eliz. dyer . the king ed. . appropriated a church to the bishop to take effect after the death of the present incumbent , the bishop after that makes a lease for yeares to begin after the death of the incumbent , and void for the uncertainty , for the bishop hath no perfit . estate , but future interest , which is meerely impossibility , and with that agreed locrofts case , in the rector of cheddingtons case , . coke where lessee for yeares makes assignement of so many of the yeares as shall be to come at the time of his death , and void for the uncertainty , insomuch that it is meerely possibility , for that which may be granted or surrendred , ought to be interesse termini at least : and he supposed it could not be released , insomuch that he to whom the release is made , hath all the tearme if he lived so long ; and so he concluded , and praied judgement for the plaintiff . harris serjeant for the defendant ; argued that the first devisee had two titles , one as executor and another as a legatee , and before entry , and after that he had entred also the law doth adjudge him in as a legatee , and before that he enter he may that grant over , notwithstanding that he hath not determined his election , for the law vests the property and possession of that in him , before any entry , but to make an election there ought to be some open act done , as it is agreed in welden & eltingtons case , where that the first devisee which was executor , also made expresse claime to have the tearm as legatee and not as executor , and so vested the remainder also , see com. . b. and so in paramore and yardlies case , lessee for years devises his tearme to his executor during his life to educate his issues , the which the executor doth accordingly , and this open act was resolved to be a good election , and in mannings case , coke . b. the executor which hath the . estate devised to him , saith , that he to whom the remainder was limited shall have it after his death , and this resolved to be a good execution and election , and it is there resolved , that such election made by the particular devisee is a good execution for him in remainder , but here is not this election to have this as legatee nor executor , for there is not any overt act made by which this may be done . secondly he conceived that this is no remainder , but executory devise , as it is agreed in mannings case , and that this may be done by devise which cannot be done by the party by act executed , and for that he conceived that there is no possibility , but an estate executed and vested in him which is executor , though there be no election made nor execution of the legacy , and admitting that it is but a possibility , yet he conceived that it is propinqua possibilitas , insomuch that the tearme is longer , then it may be intended , that any man might live , insomuch that adam lived but . yeares , and this is five thousand yeares , which is longer then any man in the world ever lived , and he said that it is agreed in fullwoods case , that possibility may be released to a possession , and with this agreed the opinion of strange , in the h. . . and so warranty may be released which is meerly in contingency , as it is agreed in littleton , and power of revocation may be extinct by release of him that hath the possession of the land , and so he concluded and prayed judgment for the defendant . nicholls serjeant for the plaintiff , conceived that the remainder is in esse , and not determined by the release . and first he conceived that the remainder was executed , insomuch that the release was made at the request of the father , which was the first devisee , for this shewes his assent , and implies that he took notice of his remainder , and assented to it , and he sayd , it was adjudged in doctor lawrences case , that the speaking of these words by the executors , that is ( that they were glad of the devise ) was a good execution and assent of the legacy . secondly , he conceived that it is only possibility , and for that cannot be released or granted , and he saith that the law hath great respect of possibilities that estates may revert , and for that it is adjudged in the of richard . dower . if tenant for life grants his estate to him in remainder in tayl for his owne life , the tenant enters , takes a wife and dies , she shall not be indowed , but the tenant for life shall have it againe , and it shall be as it had been let to a stranger , and to this purpose also he cited , . ed. . . counter-plea of voucher . and it was adjudged in middletons case . coke . a. that an executor before probate of the will may release a debt , but not an administrator before administration granted , see com. , . fox and greisbrookes case , and in . ed. . lessee for anothers life , rendring rent , the rent was behind and the lessor releases to the lessee all debts , he for whose life dies , and there the release determines and discharges the arrerages , for it is a duty , and debitum is latine as well for debt as for duty , also release bars the lord and writ of deceit for reverser of a fine levied of land in ancient demesne , as it is . h. , and yet littleton saith , that release of a futrue thing shall not be a barr , and for that if conusee of statute merchant , release all his right in the land yet he may extend the statute . assis . and so if a mad man release , and after come to his wits and dies , quere if the heire may have a writ of non compos mentis : and he said that it was adjudged in the . of eliz. if an infant levie a fine , and after he levies another fine , this shall be a barr in a writ of error for the reversing of the first , otherwise of a release : and here to the principall case to a release made by the son in the life time of his father without warranty : and so upon all these cases he concluded , and prayed judgment for the plaintiff . shirley serjeant for the defendant argued , that the acceptance of release by the first devisee , shall not be execution of the devise , as it was adjudged in barramores and yardleys case by the education of the issue , or a devise upon condition to pay money , and the executor pays it , this is a good execution : but here the thing which makes the execution is only release , which enures as release . and for that the accepting of the release , it cannot be execution of a legacy . but if the executor , to whom the first devise was made , had had any co-executor , and he would not have suffered him to joyn in occupation with him , that had been full declaration of his intent , that he took it as a devise , and not as an executor , as it is agreed in the el. . dyer . and he said also , that it hath been agreed to him , that it is such a possibility that cannot be granted , as it is agreed in fulwoods case , coke , . b. and he said it is not like to harveys & bartons case , where two joynt-tenants for life were , and one made a lease for years to begin after his death , and dyed , and his companion survived him , and agreed to be a good lease against the survivor , notwithstanding the contingency . and he conceived that this might be released , and that it is not like to contingent actions , insomuch that it is a release of right in lands , see h. . . b. colts assise , where it is said , if lord , mesne , and tenant are , and the mesne is forejudged by the tenant , and after the lord releases to the tenant , and after by parliament it is enacted that the fore-judger shall be void , yet the release shall be good against the lord , and so of actions by executor before probate : and ed. . barr , release of dower by fyne doth extingush it : and althams case coke , if it be made to the tenant of the land , that shall be a barr. and h. . fol. the last , release to a patron in time of vacation shall be a barr in annuity brought against the incumbent : and if the lessee for years be outed , and the disseisor makes a lease for years to a stranger , and the first lessee release to them both , this is good , as it is h. . and yet regularly such release is not good without privity : but insomuch that it is of right to the land , and to one which hath possession , it is very good . so release by copy-holder , extincts his copy-hold right , as it is resolved coke , amongst the copy-hold cases , and yet hee agreed that some possibilities cannot be released , as in albayns case , power of revocation , if it be not to the tenant of the land , insomuch that this is a meer possibility . so if an annuity depend upon a condition precedent ; but where the returning of the estate is to the party himselfe , as in diggs case , coke . a. and also the release in this case is the more strong , insomuch that the estate in this is recited , as in the case of ed. . in release of ayde . and so he concluded , that admitting there be no election and execution of the legacy by the acceptance of the release , then the title of the defendant is good , and if it be a good election & execution : yet he conceived that all the tearm remains in the first devisee , and that the remainder is destroyed by the release , and so prayed judgment for the defendant , and so it was adjourued . pasche . . jacobi , in the common bench. manley against jennings . in debt upon an obligation , with condition to performe , observe , fulfil , and keep , all covenants , grants , articles , payments , contained in a lease , &c. the lessee doth not pay the rent at the day , and the plaintiff without making of any request , begins a suit upon the obligation ; and upon this matter pleaded in barr , the plaintiff replyed that he was not demanded , and upon this the defendant demurred : and harris serjeant for the defendant argued , that when any penalty is annexed to a payment of the rent , be that annexed to the estate , or otherwise , yet it ought to be requested , and without request to pay it , no penalty sha●l be incurred , as in h. . . a. b. by newton , ashton , and port , where a difference is taken between an obligation taken for payment of rent generally , without any relation to a lease , and where it is only for performance of covenants , and issue taken upon the request , and after demurrer joyned , and the question if the lessee ought to tender it , edw. . . accordingly : and in edw. . . a. b. pigott and bryan agreed that there shall be no penalty nor obligation forfeited , without request , where the obligation is for performance of covenants , and not precisely for the payment of rent , and so he concluded , and prayed judgment for the defendant . nichols serjeant for the plaintiff , conceived that the lessee ought to make tender upon the land to save the penalty , and this shall be sufficient : and the lessor need not to make request , and this is the obligation for performance of covenants , for this doth not alter the nature of the rent ; but if it be for payment of rent precisely , there the lessee ought to seek the lessor , or otherwise for not payment , he shall forfeit his obligation , for there tender upon the land shall not excuse him . and for that if a man makes a lease for years , rendring rent at michaelmass , with nomine poene , if it be not payed within dayes after michaelmass , and within the . dayes , and these differences appear , and are agreed in h. . . and edw. . brooke tender . and he conceived that the books of ed. . . . ed. . . and ed. . . depends upon these differences , that is , that a man ▪ shall not distrain for rent charge without request , insomuch that it is as a debt which is due upon request , and admit that the case were that a man made a lease for yeares , the lessee covenants to pay the rent at the day with a nomine pene in default of payment of that , and after the lessee assignes his interest to one which covenants to pay the rent , and performe all the covenants in the lease , he demanded in this case who shall make the request , that is , the first lessor or the lessee , insomuch that it is penall to the assignee of them both , and so many suits may arise upon that , and also he sayd , that it was ruled here upon a motion in arrest of judgment , that in debt upon an obligation to performe covenants there need not to be alledged demand , upon solvit or non solvit put in issue , for it may be pleaded that it was tendered or payd , and so he sayd it is confessed by the demurrer , that the obligation is forfeited , and for that he prayed judgment for the plaintiff . coke cited myles and dragles case , where a man was bound for performance of a will , he need not to pay legacy devised by that for which is no day assigned without request , so if the obligation be for payment of legacy expresly and no day assigned , and so it was adjourned . trinity . . jacobi , in the common bench. gravesend case . in debt , the case was this , that is , the port-reeve , jurates and inhabitants of gravesend , brought debt against one edmonds a water man , which plyed the ferry betwixt gravesend and london , and counts that gravesend and milton are ancient townes and next adjoyning to the river of thames , and that the inhabitants of these townes have had time out of minde , &c. ancient passage from thence to london , and have used to make by-lawes , and constitutions for the government of that passage , and have provided water-men , steer-men , and rowers for the said passage , the which used time out of minde , to take of every passenger and his fardell two pence , and that for their maintenance , and ought to hold the passage , if their benefit at this rate amounted to foure shillings , or more , and that the queen elizabeth by her letters patents under the great seale of england , incorporated the said inhabitants by the name of port-reevs , jurats , and inhabitants of milton and gravesend , and this was in the tenth yeare of her raigne , and also that they injoyed the said ferry without any interruption , and that they held the tide and ferry , and that the port-reeve , jurat , and twelve of the inhabitants had power to make by-laws and coustitutions for the government of the sayd ferry , and that every water-man should observe his turn , and also to impose fines for the not observing of them , and that in the thirty seventh yeare of the said queene elizabeth , a constitution was made by the then port-reeve , jurats , and twelve of the inhabitants of the said towns , insomuch that many water-men ply poore passengers , before that the barge was furnished , and so that many other passengers were inforced to loose their passage by the barge , insomuch that the passage did not amount to four shillings , so that they did not hold their tyde , so that the barge which had such preheminence , that is , that no water-men shall ply any faire or passenger till the barge had received so many of their passengers , by which they might receive four shillings at the rate aforesaid , and be removed from the bridg at gravesend unto the land marke , and that if the tiltboate , or any other water-man received any passenger before that the barge be so furnished , that he should pay the sayd port-reeve , jurats , and inhabitants for the maintainance of the said barge for every passenger so received two pence , and so assigned breach of the by-law in the defendants , and that he had received so many of the passengers before the barge was furnished , which amounted to as much as is demanded , by which action accrued to the plaintiff to demand it , to which the defendant pleads that he oweth nothing to the plaintiffs in manner and forme as they have demanded it , and by the jury at the barr it was found for the plaintiffs , and after that upon motion in the behalfe of the defendant , the judgment was arrested , and now at this day judgement was prayed for the plaintiffs . by dodridge serjeant of the king , and he conceived that the custome was good , notwithstanding that it was alledged in the inhabitants , and he sayd it was no prescription but custome , and it is declared to be a good and laudable custome and usage by the statute of h. . chapter . rastall passage . and he agreed that inhabitants cannot prescribe to have matter of benefit , but to have matter of ease , he conceived they might very well , as it is ed. . . h. . prescription . ed. . . h. . . secondly , as to the objection , that the living of the other watermen which are not imployed in the barge is by that abridged , and that when the water-man is willing to carry , and the passenger to be carried by him , it is no reason that a by-law should abridge this voluntary act of a man , upon which his lively-hood depends , he sayd that so it is not , for nothing is challenged by the by-law , but only preheminence , and that provision be made for the poore , which is for the publick good , for every one may go with any that he will paying two pence to the barge or after the barge is furnished paying nothing , and he conceived that the liberty of the subject ought to be so abridged , but not alltogether abolished , as it is agreed in the arch-bishop of yorkes case in the register in the writ of trespasse fol. . b. c. coke . a. wagoners case , ed. . . a. ed. . . where the bishop of york claimes in the mannor of ripon such liberty , that is , that he and all his predecessors time out of mind , &c. have had a custome that none in the said town ought or had accustomed to use the office or mistry of a dyer , without licence of the said arch-bishop or his bayliff of the said town : and also he cited a case in the register , where the abbot of westminster prescribed to have a faire in westminster upon saint edwards day , and for ten daies after : and that no citizen nor other in london , during that time should sell any thing in london , but in this faire , and after the abbot remitted this priviledg , and had of the citizens of london for that ; one thousand five hundred pound : and so it was adjudged in sir george farmers case , for a bake-house in tossiter , and that none shall bake any bread to sell , but in his bake-house and good : and so he conceived that custome may be restrained all passengers till the bardge be furnished , as in . ed. . . gran● that all ships , laded and unladed in such a haven , shall be laded and unladed in such a place , and a good grant , notwithstanding that it restraines all people to a certaine , and if this be good by grant , then a fortiore shall be good by custome ▪ and to the other objection , that this custome shall only bind the inhabitance and not strangers , he conceived that custome might tye strangers that came into the said town very well , as it is agreed in . h. . . so the by-law shall bind strangers , when it is only for acts to be made within the town and for the publike good , as it is agreed in the . ed. . . and . ed. . assis . . ordinance against him which estops passage by water and good , and so he agreed in the chamberlaine of londons case , that by-law made in london shall bind all , as well strangers as citizens , which sell any drapery in the hall there , though that they inhabit in any place out of the city : and also he said that the bardge-men which have the losse , shall have the benefit , for they shall have the two pence for every one that passes otherwise , before that they are furnished , and this is recompence for them which are tyed to perpetuall attendance , and he conceiveth that the demand is very well made , notwithstanding that the duty accrues from many times , for he hath carried so many men at one time and so many at another , the which in all amonnts to the sum demanded : and so he concluded , and praied judgement for the plaintiffs . wynch justice , that the count is not good , for the plaintiffs have not alledged that they have used time out of mind , &c. to maintaine ferrey , but only that they have used to make constitutions , secondly , it is not alleadged that they onely have used to maintaine ferrey , and if they cannot prescribe in the sole using of that , and to exclude others , then others may use that as well as they , being for the publick good , for how shall they be punished , if that they do not use and maintaine ; at the common law the inhabitants of a towne shall be punished for not repairing of a bridge , or high way , the which may be maintained by the inhabitants together , and if they do not do it , then others may do it , as well as others may repaire high waies or bridges , as those which have used to repaire them , as a common host shall be punished in eyre if he refuse to lodge any man , and yet he which he refused to lodge , may have an action upon the case for the refusall : also the patent gives the forfeyture to the port-reeve , but the by-law doth not make any mention who shall have it , and he conceives that it shall not be as upon the statute of . ed. . which gives penalty for not setting forth of tythes , but doth not appoint who shall have them : and this was adjudged to be to him which ought to have the tythes , but this cannot be so here , insomuch that it is against the grant , and agreed that a stranger shall be bound by by-law , where it is for the publick good , but not otherwise , and also the custome that these bardge-men shall have the preheminence , may be good , as well as custome that the poore of such a parish shall have common in such a place till such a day , and then the others , and so in this case ; and so he concluded that judgement shall be arrested . warburton justice conceived that the count is good , and that the inhabitants may prescribe very well , as . assis . foure townes were charged for the repaire of a high way , and so may the two townes for the ferrey , that he intended to be high way upon the water , and also he conceived that this is inquirable in eyre , and also by the justices of the kings bench , and now by the justices of assises by indictment by the name of inhabitants : the which may be as good an action upon the statute of winton against the inhabitants of the hundred , and so he conceived , that in this case the inhabitants of milton and gravesed may be punished by indictment if they do not repaire the ferrey , and that the king there this day may erect a ferrey in place where it is necessary , for the king may erect office which is for the benefit of the common wealth , but not to charge the common wealth . and that if any will passe in his owne ferrey , without carrying of another , this is no breaking of the by-law ; and so he concluded , that judgement should be given for the plaintiffs . coke cheife justice seemed the contrary , for he conceived it is not shewed in the count to whom the ferrey belongs , for the owners of that are not mentioned , the which it ought : and yet he agreed that a ferrey may be without owner , as it is agreed . ed. ▪ . insomuch as this is locall and need not any agent , but out of leete and ferrey otherwaies it is , for there ought to be agent , or otherwise the ferrey should be of no use , and for that there ought to be an owner . secondly it is alledged that infra easterne townes , there is such a custome that the inhabitants may make constitutions , and that the inhabitants shall maintaine a ferrey , but not that there was a ferrey , but that he conceived it might be good , insomuch that it is not traversable . thirdly what action the inhabitants may have , if they be disturbed of it , for this is no easement , and they have no estate of inheritance , and for that the prescription by the name of inhabitants is not good , for they cannot have estate , and to the satute of . h. . chapter . which saith , it is a laudable custome and usage that a bardge shall be maintained , but not that inhabitants shall maintaine that , nor those incorporate , so that the statute doth not make them capable of such a thing , for which a writ of right , and assise by the statute of westminster . lies . fourthly , that the custome and the patent are repugnant , for by the custome the bardge hath not any preheminence nor precedence , but equall liberty was to all water-men to carry what passengers that they could , and with that also agreed the statute of . h. . and then if the custome were not so , this cannot be made by the grant of the queene , nor by the by-law , for this is the liberty of the subject , the which cannot be abridged nor restrained by them , for if the king may grant such preh●minence here , so may he do in all other ferreis and places , and also in the practise of the law , to have preaudience in this court , and in all other courts of justice : and so should it be also of butchers and bakers , and all others which used buying and selling : and he said that the king hath preemtion of time in some places , but this is not by his prerogative , but by the custome of the place ; and he agreed that custome in subject may have preemption , but not by the kings grant , for the king cannot grant that to another that he himselfe hath not by his prerogative , and perchance he which hath such grant , will not come to market , till all the market be ended , and he conceived that the river of thames is so publick , that the king cannot restraine that by his grant , no more then he can grant preheminence to a coachman to carry people into the streets of london : the which is adjudged upon the matter in the . of ed. . toll . . where the king grants toll for every one which passeth by a common way : and agreed that it was not good if it be in a common way , or in a common river , for as it is resolved in the . assis . . every common river is as high street , and common waies and the passengers way as the water increases , and the thames is a branch of the sea and a common street , as it appears by bracton fol. . . the plaintiffs have brought their action by the name of corporation of port-reeve , jurats , and inhabitants of milton and gravesend , and they are incorporate by the name of port-reeve , jurates , and inhabitants of gravesend , possessors of ships , the which words are left out in the name , by which the action is brought , so that the by-law is not made by the same name , by which they are incorporate , nor the action brought by the same name : and yet he agreed that they might make a by-law according to the grant , without calling all the inhabitants to it . sixtly , he conceived that the constitution is not pursued , for the constitution is ; that if any water-man carries any passenger willing to go by the bardge , that such water-man shall pay for every such passenger two pence . and it is not averred that the passengers which the defendant hath carried , were willing to be carried by the bardge , and so not pursued . seventhly , the constitution is further that no wherry-man shall carry any passenger , before the bardge be fully dismist and transmist , and this is not good , for it may be the bardge will not passe to london at all this tyde , and for that it ought to be averred that the bardge departs in convenient time after that it is furnished , for otherwise custome that none shall put his beasts into such a place , till the lord hath put in his beasts is not good , for it is resolved in . h. . . and the reason is , insomuch that it may be , that the lord will not put in his beasts at all : and to the objection that the by-law shall not bind a stranger , he conceives that if all other circumstances had been concurrent ; that had been very well , insomuch that it was within the place where they had power to make by-lawes , and also for the publick good , and this as well as the custome of forraine bought , and forraine sold , the which is only for strangers : and to the objection , that they are severall owners of severall bardges , and for that ought not to joyne in this action , he saith this doth not appeare by the count , but it is said that they were possessed , and for that they shall be intended joynt owners ; and so he concluded , that judgement shall be arrested . trinity . jacobi , . in the common bench. downes against shrimpshaw , trin. . jacobi , rot. . in action of trespasse for assault and battery , the case was this : the plaintiff in his count supposeth the trespasse to be made the first day of may , jacobi , at such a place . the defendant pleads that the plaintiff the same day would have assaulted and beaten him , and that the defendant laid his hands upon him to defend himselfe , and if any hurt came unto him , it was by his own wrong , the which is the same trespasse for which the plaintiff hath complained him . the plaintiff replyes , of his own wrong without such cause , upon which issue was joyned ; and at the nisi prius for justification , the defendant produced witnesses , which proved an assault to be made by the plaintiff upon the defendant long time , that is , by the space of a yeare before the day contained in the count , and that at this time the defendant to defend himselfe , hath assaulted the plaintiff : and upon this evidence the plaintiff demurred , insomuch that this proves an assault made at another day then is contained in the count , and the defendant by pleading hath confessed an assault and battery made upon the plaintiff , the day contained in the count , and now upon evidence proves his justification at another day : and if this evidence were sufficient to prove his justification , was the question . and if by this pleading the day be made materiall , in which it was agreed by the court , and councell also , that if the defendant had pleaded not guilty , the day had not been materiall . but the plaintiffe might have given in evidence any battery before the day contained in the count , or after before the action brought , and this is sufficient to prove his declaration : but the parties , that is , the plaintiff by his count and replication , and the defendant by his justification , have agreed of the day : and for that if they may now vary from that it was moved , and so it was adjourned . trin. . jac. . in the common bench. laury against aldred and edmonds . in debt against the defendants , as executors of william aldred , dead , upon an obligation made by him in his life time , of . l. the case was this , one of the defendants confessed the action , the other pleaded that the testator dyed such a day , and that he intending to have letters of administration , caused the corps of the testator to be buryed , and his goods safely to be preserved and kept , and that after administration was granted to him by the arch-deacon , and that after that one harnego brought action against him as administratrix by letters of administration committed to her by the commissary of the bishop , being ordinary there , and recovered , and averred that this was a true debt , and that he had no goods which were the testators , besides the goods and chattels which did not amount to the said debt , and so demanded judgment if action , and upon this the plaintiff demurred in law. davis serjeant argued for the plaintiff , that the defendant ought to have confessed and avoyded , or traverse the point of the action , and not conclude judgement if action : see eliz. dyer . . when intermedling made men executors of their owne wrong , that is , when he meddles without any colour of title or authority , as receiving debts , and disposing the goods to his owne use . but if a man administer about the funeralls , or be made a coadjutor , or overseer , this shall not make him executor of his own wrong , or by reason of a will which is after disproved by probate of one letter : and in these cases , if he be charged as executor , he ought to plead speciall matter , without that , that he administred in other manner : and in . h. . . a. . b. adjudged in debt against one as executor , which had letters , ad colligendum bona definisti only , which pleaded the speciall matter , without that , that he administred any other way , and other manner was out of the pleading ; for he did not administer in any manner with intermedling by the letters ad colligendum : and ed. . . b. if an action be brought against an executor of his owne wrong , and after administration is committed to him by the ordinary , this shall not abate the action : upon which books he inferred , that the defendant ought to have traversed , that he administred as executor , and insomuch that hee hath pleaded that he hath not so pleaded , the plea was not good ; and also insomuch that he hath pleaded , that he hath no goods of the intestate besides goods which doe not amount , &c. and this is uncertain , and not good , for he ought to have shewed what goods he had in certain , and the value of them , insomuch that they remain as assets in his hands , and so he concluded , and prayed judgment for the plaintiff . barker serjeant for the defendant , argued , that though that the action in which harnego recovered , was begun after the action now hanging , yet insomuch that judgment was first had in that : now that shall be preferred otherwise before judgment , for till judgement the elder action shall be preferred . and he conceived , that if the writ was abateable , and the defendants would not abate it by plea , that shall not prejudice the plaintiff which is a stranger , and doth not know if these defendants are executors , or administrators , as it is said by danby , edw. . . and he conceived that the plea is good , that the defendants have not goods , besides the goods , which do not amount , &c. and divers presidents were cyted by him to this purpose , as trin. . eliz. rot. . between blanekson and frye . hillary , eliz. rot. . smalpeeces case : and trin. eliz. rot. . between goodwin and scarlet , in all which the pleadings were all one with the plea in question , and no exceptions taken to that : and infinite other presidents may be shewed in the point , for which cause he demanded judgment for the defendants . coke cheife justice seemed , that in an action brought against one as executor , he may plead that administration was committed to him for such intent that the dead dyed intestate , and demands judgment if action without traverse , that he was executor , and with this agreed , ed. . . a. h. . . and so if the ordinary be charged as executor , he may plead that he administred as ordinary without traverse , that he was executor , but only shewed that the party dyed intestate , and the plaintiff ought to reply , that he made a will , and the defendant proved that , and traverse that he dyed intestate , and with this agreed edw. . . and edw. . . and if an action be brought against executor of his own wrong , hee may plead that administration is granted to such an one , and the party dyed intestate , and demand judgment if action , for he shall not be charged for more goods then came to his hands : but if a man administer of his own wrong , and after rightfull administration is committed to him , yet he may be charged as executor of his own wrong , insomuch that right of action is attached in him . but this seems for the goods that he hath administred before rightfull administration committed unto him . and he cyted eliz. dyer . b. where in debt brought against one as executor , which pleads never executor , nor ever administred as executor ; and the plaintiffe replies , that he administred as executor of the will , &c. and so to issue . and in evidence the defendant shews letter of administration to him committed of goods of the dead , by which he administred them , and before that he did not administer , and this seems there to be good evidence , but the book was quere of that , and for that he would rather plead that in abatement of the writ , and so the book inclined also . and he conceived here , that the medling with the goods here by the defendant , as administrator , made him executor of his own wrong , insomuch that it was for funeralls , and when it is a work of charity , and the other is to preserve them . and the defendant hath not conveyed himselfe to be executor , insomuch that he said , that administration was committed to him by an arch-deacon , and he doth not say that administration of right belonged to him to commit , insomuch that hee hath but a sub-ordinate jurisdiction : and the common law doth not take notice , that he , nor no other but the ordinary hath such power , and for that the power of all which have such subordinate and peculiar jurisdiction is pleaded , that ought to be shewed , as it seems by ed. . . a. b. h. . . and the rather when this is pleaded by the administrator himselfe , which ought to have notice of that , and make title to himselfe ; and if so it be , then he conceived that the recovery by hornego was void , and so all the goods confest , remain as assets . also he conceived , that if the executor allow a writ to suffer judgment to be had against him , upon a writ which is abateable , he shall not have allowance of that , but this shall be returned as devastavit , as in edw. . . a. if the tenant vouch when he might have abated the writ , he shall lose the benefit of his warranty : so here and com. manwells case , . a. h. . . 〈◊〉 also he conceived , if a man be charged as administrator where he is no administrator , he cannot plead that he never administred as administrator , but he ought to traverse the commission of administration , as it appears by h. . . and it seems also to him , and by edw. . . that if a man be an executor of his owne wrong , and after administration is committed to him , and he is charged as executor , after administration committed , that the writ shall abate , otherwise if administration be committed , hanging the writ . so if a man be made executor , and hee not knowing of that , iues letters of administration , he shall be named administrator , and if after when he hath notice of the will , he proves it , then he shall be impleaded by the name of executor ; for in such manner as the power is given to him by the bishop , he shall be charged : and it seemes though that he plead where he is administrator , and is sued as executor , or otherwise in such manner , that hee might have abated the writ , or suffer judgment , yet the writ shall abate : and he intended also , that executor of his owne wrong , might pay debts due to another , and shall be discharged , and shall not be charged with more then he hath in his hands . and if two executors are joyntly sued , and one confesse the action , this shall bind him and his companion also for so much as he hath in his hands . but if an executor of his own wrong confesse the action , this shall not prejudice him which is rightfull executor , and so he conceived that judgment ought to be given for the plaintiff . warburton justice conceived that the barr is good , notwithstanding that he did not shew , that the arch-deacon had power to grant administration , insomuch it is no inducement and the defendant doth not relie upon it , as littleton saith , in trespasse where the defendant pleades that it was made by two , and the plaintiff releases to one , and if the defendant pay due debts it is not materiall , whether he have authority or not , though that it be in another respect : as if a man be indicted of man-slaughter and aquitted , and after is indicted of murder by the same man , he may pleade another time aquitted , insomuch that these are matters of substance : but here it is but of forme , and then if it be not shewed it is not materiall : but the matter upon which he , relied was , insomuch that the action was brought against two executors , and one hath confessed the action : and he intended without question , that if this shall bind his companion , and for that he will not dispute the other questions , but declares his opinion cleerely , that the plaintiff ought to have judgement against both these defendants upon the confession of one , and this shall bind his companion : wynch justice conceived that the plea is good by administrator without traverse , insomuch that it is to the writ , as it appears by edw. . . h. . h. . . ed. . . . . ed. . and he conceived that the burying is not any administration , nor the taking of the goods into his custody to preserve them , no more then in trover and conversion , when a man takes the goods for to preserve them : and he agreed that where a man intitles himselfe to goods by administration committed by any but by the bishop , he ought to pleade specially , that he which committed it had power to doe it : but here it is not so , but only conveiance , and for that need not here such precise pleading of that , insomuch it is only execution of administration , and for that it is good without intitleing the arch-deacon : and he agreed that an executor of his owne wrong may pay debts due to another , and shall be discharged : and he agreed also that the confession of one executor shall bind his companion , and that judgement shall be given upon that for the plaintiff : and they all agreed that the pleading , that the defendant hath no goods , besides the goods which do not amount , &c. it was not good , and for these causes they all agreed that judgement ought to be given to the plaintiff . trinity . jacobi , in the common bench. tyrer against littleton . jacobi , rot. . in trespasse for taking of a cow , &c. upon not guilty pleaded by the defendant , the jury gives speciall verdict as it followes , that is , that the husband of the plaintiff was seised of eighty acres of land , held of the defendant by harriot service , that is , the best beasts of every tenant which died seised , that he had at the time of his death , and that the husband of the said defendant , long time before his death , made a feoffment of that land in consideration of marriage and advancement of his son , to the use of his son and his heires , with such agreement , that the son should redemise to his father for forty yeares , if he so long lived , and that after the marriage was had , and the son redemised the land to his father , and the father injoyed that accordingly , and paied the rent to the lord , and after died , and that the plaintiff had no notice of his feoffment , and that the husband at the time of his death was possessed of the said cow , and that the defendant took it as the best beast in name of harriot , and also found the statute of . eliz. of fraudulent conveiances to deceive creditors , and so praied the direction of the court , and this was agreed by the plaintiff aforesaid . nicholls serjeant , first that all conveiances made upon good consideration and bona fide are by speciall proviso exempted out of the statute of . eliz. chap. and he conceived that this is made upon good consideration , and bona fide , and for that it is within the said proviso , and also he said , that as upon the statute of marlebridge there is fraud apparent and fraud averrable , as it appeares . h. . . b. where in ward the tenant pleads that his father levied a fine to a stranger , the lord replies that this was by collusion to re-enfeoff the heire of the tenant at his full age , and so averred that to be by collusion to out the lord of his ward , and this is fraud averrable : but if the tenant had enfeoffed his tenant immediately in fee-simple , this is apparent without any averment , and the court may adjudge upon it : and so upon the statute of . eliz. chap. . it appears by burrells case , that the fraud ought to be proved in evidence , or confessed in pleading , or otherwise this shall not avoid conveiance , for it shall not be intended , coke . a. and see . h. . . b. andrew woodcocks case , upon which he inferred , that this is but a fraud averrable , if it be a fraud at all , and of this the court could not take notice , if it be not found by the jury , and he said upon the statute of h. . of devisees , as it appeares by knights case , coke , and . eliz. dyer . , , , , , , , , , , . and so he concluded , and praied judgement for the plaintiff . harris serjeant for the defendant ; argued that the circumstances which are found in the speciall verdict are sufficient to satisfie the court that it is fraud , for as well as the court may give direction to the jury upon evidence that it is fraud and what not , as well may the court judge upon the special matter , being found by special verdict at large , as in el. dyer . and . that is , the special matter being found by special verdict at large , as in el. dyer . . that is , the speciall matter is found by inquisition upon mandamus , and leave to the court to adjudge if it be fraud or not , and in el. . and . . the speciall matter was found by jury upon eligit directed to the sheriffe , and by him returned to the court : and in trinity . eliz. between saper and jakes in trover the defendant pleades not guilty and gives in evidence as assignement of a tearme to him with power of revocation : and the court directed the jury , that this was fraudulent within the statute of . eliz. to defraud a purchasor , and in burrells case . coke . a. before the fraud to the court upon evidence to the jury , and the court gave direction to the jury that it was fraud , and that upon the circumstances , which appeares upon the speciall evidence : and so in this case he conceived , that insomuch the circumstances appear by the verdict , that the jury may very well adjudge upon it ; and so he concluded , and praied judgement for the defendant . coke cheife justice that the statute of . eliz. doth not aid the defendant , insomuch that the feoffment was made for good consideration , and for that shall be within the said proviso , for if that shall be avoided at all , that shall be avoided by the statute of marlebridge , which is ouly affirmance of the common law , and this is the reason , that not withstanding the statute speakes only of feoffment by the father to his son and heire apparent , yet a feoffment to a cosin which is heire apparent , is taken to be within the statute , and in the . of eliz. in sir hamond stranges case : it was adjudged that if the son and heire apparent in the life time of his father , purchase a mannor of his father for good consideration , this is out of the statute , and so it was adjudged in porredges case ; also he said that the law is an enemie to fraud , and will not intend it being a conveiance made for consideration of a marriage to be fraudulent , no more then if the father had made a feoffment to the use of a stranger for life , the remainder in fee to his son and heire , the which is not within the statute of marlebridge , as it is agreed in andrew woodcocks case , . h. . . b. also he conceived , that the feoffment in consideration of marriage , naturall love to his son , and that the wife of the sonne shall be indowed , and that the son should redemise that to his father for forty yeares , if he so long lived , and that the father should pay the rent to the lord , these he intended to be good considerations , and for that should be within the said proviso of the statute of . eliz. otherwise if it had been to defraud creditors : but if it had been to such intent , that is to defraud creditors , this shall not be extended to other intent , that is to defraud the lord of his harriot : and in the . of eliz. it was adjudged in the kings bench , if a man make a feoffment in fee to the use of himselfe for life , remainder to his son in tayl , with divers remainders over , with power of revocation , and after bargaines and sells to a stranger upon condition , and after performes the condition , that yet the first conveiance remaines fraudulent , as it was at the time of the making of it : but this is only as to the purchasor and not as to any other , and in goodhers case , . coke . a. in debt against heire which pleads nothing by discent day of the writ purchased , the other joynes issue , and gives in evidence fraudulent conveiance , and upon speciall verdict adjudged that it was very good : see also . coke . b. c. vern●ns case , the collusion to have dower and joynture also : and so he concluded that judgement should be given for the plaintiff . warburton justice agreed that the fraud shall not be intended if it be not found , no more then if a man grant an annuity to another , quam diu se bene gesserit , in annuity , for that he need not to averr that he hath behaved himselfe well , for this shall be intended , if the contrary be not shewed of the other party : so here insomuch that it is not found to be fraudulent , it shall be intended to be bona fide : and he agreed that if it had been fraudulent at the first : if the son had made a feoffment over in the life of the father , as it is agreed in andrew woodcocks case , h. . . that then the fraud is determined : so here when the son hath made a lease to his father , this determines the fraud if any be , and so he concluded that judgment should be given for the plaintiff . wynch justice agreed , insomuch that it is expresse consideration found by the verdict , and for that other consideration shall not be intended , and also that it shall not be intended that the conveyance was made to defraud or to deceive the lord of such a peccadell as harriot is , which is of small consequence ; but if it be a fraud within the statute of eliz. apparent ; that is , if it containe power of revocation , which is declared to be apparent fraud by the statute , the court may take notice of that without any averrment ; and he saith , that in the . and . eliz. dyer , wainsfords case , . a. and eliz. dyer , . there is no averrment of fraud , but expresse issue joyned upon the fraud , and for that he need not any other averrment : and so he concluded also that judgement should be given for the plaintiffe , and so it was ruled accordingly , if the defendant did not shew other matter to the contrary at such a day , which was not done . trinity . jacobi . in the common bench. strobridge against fortescue and barret . in a replevin the case was this , a man seised of lands in fee devises rent out of it with clause of distress and dies , his son and heire enters and dyes , the rent is behind , the son of the son dyes , and his son enters and makes a feoffment to the plaintiff , and the devisee of the rent , releases all actions , debts , and demands , to the feoffor , and after distraynes the beasts of the feoffee , for the rent behinde , before the feoffment , and it seemes the release is not good , insomuch that the devisee had no cause of action at the time of the release made , against him to whom the release is made , nor demand against him , otherwise if the release had been made to the feoffee , for he was subject to the distress , and this is a demand . trinity . jacobi . , in the common bench. case of cinque ports . note that coke said , that it hath been adjudged by three judges against one in a case of cinque ports , that the cinque ports cannot prescribe to take the body of a freeman in withernam , as they use for another ; for this is against the statute of magna charta , quod nullus liber homo imprisonet●r nisi per legate judicium , and also against the liberty of a subject , but they more inclined that they might take the goods of one in withernam when another is arrested , and them retain , and this seemes the more reasonable custome and prescription . the case was , tenant for life , the remainder for life with warranty , the first tenant for life was impleaded , and he vouches him in reversion , but he first prays in aid of him in remainder , and if this aid prayer shall be granted this was the question . and it seemes by nicholls serjeant , that it shall not be granted , see h. . . where it is agreed that if a man makes a lease for life , remainder for life , remainder in fee , and the first tenant for life hath ayd of him in remainder for life , and he in fee joyntly , and edw. . . in trespasse against a miller which takes toll where he ought to grind toll-free ; the defendant saith that j. had the mill for life , and that he is his deputy , the reversion to w. in fee , and prays ayde of the tenant for life , and of the tenant in reversion , and had it of the tenant for life , and not of him in reversion , and this for default of privity , as it seems to brooke , ayde . haughton conceived that it should be granted for tenant for life , notwithstanding that he may plead any plea , yet he doth not know what plea to plead without him in reversion , but by the ayde , praying al the estate shall be reduced into one , and the warranty shall come ; and for that he conceived , that the first tenant for life shall have ayde of him in remainder for life . wynch justice conceived that ayde shall not be granted against the first tenant for life , against him in remainder for life , for he conceived that ayde is alwaies to be granted , when the defects of him and his estate which prays it , are to be supplyed by him which is prayed ; that this is the reason that he may have ayde of his wife , and where there are many remainders , the first tenant may have ayde of them all ; otherwise where he is tenant for life , the remainder for li●e , and the reversion expectant , for the tenant for life cannot supply his defects ; and with this agreed the expresse booke of edw. . fitz. ayde . and so he concluded that it should not be granted . warburton justice doubted , and insomuch that the granting of ayde where it is not grantable , is no error , but otherwise of the denying of that where it ought to be granted , he would be advised : but he conceived that the cause for which ayde is granted , is not the feeblenesse of the estate of him which prays it onely , but to the intent that they may joyne together , and one defend the other , for tenant for life may plead some plea , which he in reversion may plead , saving the joyning of issue in a writ of right , and he had a manuscript of the rich. . where tenant for life , the remainder for life , the remainder for life was , and the first tenant for life had ayde of them both in remainder , and so concluded . coke cheif justice that aid ought not to be granted in this case , insomuch that he which is the first tenant hath greater estate then he in remainder , for his estate in remainder is more remote and uncertaine , and to the book of r. . he agreed , that the ayd was granted of all in remainder , but there they in remainder had estate tayle , and he sayd that ayd is to be granted in two cases , in personall actions to maintain issue , and when tenant for life prays in ayd of him in remainder or reversion , without which they cannot answer nor plead , nor issue cannot be deduced , but so it is not here , for the first tenant for life may answer and plead to the issue , as well without him in remainder for life , as with him , for if tenant for life , remainder in tayl , remainder in fee , if the first tenant for life be impleaded he shall have ayd of him in remainder in tayl , otherwise if the reversion had been to the first tenant for life , with a mesne remainder in tayle , ed. . ed. . ed. . and ed. . receit . tenant for life , reversion for life , remainder in fee was , he in reversion for life shall be received upon default of the first tenant for life , and if he will not , then he in remainder in fee shall be received , and yet he shall not have wast , as it appears by ed. . for this destroyes the first estate ; but the receit maintains and preserves it , and he sayd , that the ed. . ayd . . before cited , rules this case , and so of h. . and so he concluded , and insomuch that warburton doubted of it , it was adjourned . trinity . jacobi . in the common bench. yet rowles against mason , see before . winch justice argued that the defendant is not guilty , and that the plaintiff shall take nothing by his writ , for he conceived that the verdict is uncertaine , insomuch that it is not found that livery and seisin was made upon the lease for three lives of the mannor , but onely one memorandum , that it was made in the house of the lord , but it is not found that this house was parcell of the mannor , but after it is found that the lessee by force of this was seised , by which it is implyed that it was very well executed , and this being in speciall verdict , would be very good , he conceived , there were two principall matters in the case . first , upon the bargaine and sale of trees , if they be re-united to the mannor , or remaine undivided . secondly , upon the two customes , the which he conceived depend upon a question , for the first warrants the second . and to the first , when a man devises a mannor for three lives , and by the same deed in another clause , bargaines and sells the trees , and then insues the habendum , and this is of the mannor only , and limits estate of that for three lives without mention of the trees , hee conceived that the trees passe before the habendum absolutely , and it is not like to a bargaine and sale of a mannor with trees , or advowson appendant , and here the purpose and intent appeares , that they shall pass together and as appendant : but in the first case they shall passe as a chattell immediately upon the delivery of the deed before any livery made upon this to pass the mannor , and if livery had never been made , yet he shall have the trees , see eliz. . dyer , where a man devises and grants a mannor and trees , habendum the mannor for one and twenty yeares without mention of the trees , and yet by windham , periam , and meade , against dyer , the lessee cannot cut and sell the trees , for there was all in one sentence , that is , the grant of the trees and the demise of the mannor , see the coke pexells case , how a grant shall be construed , and where that shall be intended to pass inheritance , and where to pass but a chattell , where a man grants a chattell and ten pound yearly to be payd , and in ed. . if a man hath inheritance and a lease in one town , and he by one and the same deed , gives , grants , bargaines and sells all to one , habendum , the inheritance to him and his heires , this is no forfeiture of the lease , insomuch that the fee doth not passe of that , so in the principall case , fee-simple passeth in the trees , and free-hold in the mannor , and he conceived that by the demise over , the land and trees are not re-united , and this he collected out of herlackendens case . coke and . eliz. bendlowes , a man made a lease for anothers life , and bargaine and sold the trees to him for whose life lessee dyes , he for whose life becometh occupant of the land , he shall have severall estates , one estate in the land , and another estate in the trees , and so in ives case , coke . a. lessee takes a lease first of land except the woods , and after takes a lease of the woods and trees , and they remaine distinct and though that after there are generall words in the lease , that is , of all meadowes , pastures , profits , commodities , &c. that is not materiall , for these shall be referred to all such things which belong to the land , and so he concluded this point , that the trees remain severall from the land , and do not passe to hoskins by the demise of the copy-hold only , and so he cannot take advantage of the forfeiture , otherwise he did not doubt but that the particular sum might take advantage of the forfeiture . secondly , for the customes , he conceived that the first , that is , that the copy-holder for life might nominate his successor , and is good , and so for the second , that such copy-holder may cut and sell all the trees growing upon his copy-hold , and he conceived that the validity of the custome , ought to be adjudged by the judges , and the truth of that by the jury , and when it is found true by a jury , and that it hath such antiquity that exceeds the memory of man , then this obtaines such priviledge as the prerogative of a prince , and is part of law , and stands with it , and this is reasonable custome , and so it hath been adjudged in the kings bench , the reason is , insomuch that the custome is the life of the copy-hold , upon which that depends , and the party is but a conduit to nominate the tenant , and when he is nominated and admitted then he takes by the lord , and that stands with the rules and reasons of the common law , that is , that a man devises that a marryed wife shall sell his land , and she may sell notwithstanding the coverture , for she upon the matter nominates the party , and he takes by the devise , and by this reason , she may sell to her husband as it is agreed by the of assises . and also by devise that executor shall sell , executor of executor may sell , notwithstanding that he is not in esse at the time of the devise , and so a lease for life to one , remainder to him that j. s. shall nominate is good after nomination , and then he takes by the first livery , as it is agreed in h. . and j. s. only hath the nomination , and nothing passes to him , and with this also agrees ed. . h. . so if a man makes a feoffment to the use of himself for life , with diverse remainders over , and power to himself to make leases for three lives , this is good , as it is agreed in mildmayes case and whitlocks case , coke , and yet the estate doth not passe from him but out of all the estates , and he upon the matter hath only the nomination of the lessee , and of the lives , for all the estates apply their forces to make that good , and the el. dyer . . custome that the wife of the copy-holder for life shall have her widdows estate , is allowed to be a good custome , and there an estate for life upon the matter is raised out of the estate for life , and annexed to it , and this is by the custome , and the reason he conceived to be for that that women should be incouraged to marry with their tenants , and by that the marriage with the tenant , and the custome in this case doth bind the lord , and so coke , there are divers customes by which the lord is bound , and the coke swaines case , where the copy-holder by custome hath the trees , in case where the lord himself hath them not , so if the lord sell the waste , yet the copy-holder shall not loose his common in that , notwithstanding that the estate of the copy-holder be granted after the wast is severed from the mannor , and it is agreed in waggoners case coke , that custome is more available then the common law : and for that this cnse hath been adjudged in this point between crab and varney by three or four judges , he would not further question it . and for the second custome , he agreed that one bare tenant for life , could not meddle with the sale or falling of the trees , but here is a copy-holder for life which hath aut ority given by the lord , and the custome to dispose the trees ; and he saith that bracton and the old laws of england calls copy-holders falkland , and saith they cannot be moved , but in the hands of the lord they ought to surrender , and agreed that this is within the rules of the common law , for consuetudo privat communem legem and the law doth nor give reason of that , for this is as a ground , and need not to be proved , for the reason of every custome cannot be shewed , as it was sayd in knightly and spencers case , and he sayd , that mannors are divided into three sorts of tenures . the first holds by knights service , and this is for the defence of the lord , and they have a great number of acres of land , and pay less services . the second holds by socage , and this for to plow and manure the demesnes of the lord , and they shall pay no rent nor do other services , and this was at the first to draw such tenants to inhabit there , and for that they have authority to dispose and sell the trees growing upon theit tenements . the third , holds by base tenure , and these were at the will of the lord , and these were to do services , and then these in many cases have liberty for their wives in some cases to dispose that for another life , and to dispose the trees , and so it is in ireland at this day , where some give more and greater priviledge then others , to induce tenants to inhabite and manure their land , for there every day is a complaint made to the councell for inticing the tenants of the lord , and ed. . bar . the tenant preseribes to have the windfalls , and if the lord cut the trees , that he may have the lops , and h. . . the keeper of the wood prescribes to have fee , and ed. . is prescription to stint the lord in his own soyl , and all these are for the incouragement of tenants to inhabit upon the land , and time of ed. . prescription . a stranger prescribed to have all the profit of the land of another , for a great part of the yeare , and to exclude the giver of the soyl , & ja. it was adjudged in the kings bench between henrick and pargiter , that the lord may be stinsted for common in his own laud , and in the book of entries . it appears that by custome copy-hold granted , sibi & suis , was a good fee-simple , and the reason of all this is shewed in the . coke , amongst his copy-hold cases , where it is agreed that the life of a copy-hold estate is the customes , and then if the custome gives life to the estate , this gives life also to all the priviledges which are incident to the estate , and the lord is but the means to convey the estate from one to another , and as in ed. . a man hath a house as heir to his mother , and after a stranger grants estovers to him and his heirs to be burnt in the same house , these estovers shall go to the heirs of the mother , insomuch that they are incident to the house , so of priviledg incident to a copy-hold estate by the custome , and at the common law , if tenant for life hath cut the trees , he : hath not forfeited his estate , for he was trusted with the land , and was not punishable till the statute of glocester , and at this day if there be a mesne remainder for life which remains in contingency , and that shall prevent that the tenant shal be punished for this waste , and to make innovation of this custome , will be dangerous , and for that he concluded that the plaintiff shall be barred . warburton justice agreed : and the first custome , that is , for the nomination of the successor , he conceived that it is good , and that it is good by the common law , and good by custome by the common law , as a lease for life , remainder to him which the tenant for life shall name : so by custome as the custome , that if a copy-holder will sell his copy-hold estate , that he which is next of blood to him shall have the refusall , and if none of his blood , then he which inhabits in the neerest part of the part of the ground shall have it before a stranger , giving for that as much as a stranger would , and the lord shall have him for his tenant , whether he will or no , for it shall be intended , that so it was agreed at the first , and it is reasonable ; and if it had not been ruled and adjudged before , yet he conceived it might now be a rule and adjudged , insomuch that it is so reasonable and good , and for the second custome , that is for the custome of cutting of trees , by such copy-holder which hath such priviledge , he conceived also that it was good : but he agreed that a bare tenant for life cannot be warranted by custome to do such an act , as it was here adjudged between powell and peacock : but here he had a greater estate then for life , for he hath power to make another estate for life , and shall have as great priviledge as tenant after possibility , &c. which is in respect of inheritance which once was in him , and he may do it for the possibility which he hath to give to another estate , as it is agreed in . ed. . that a lease fo a hundred yeares is mortmain , in respect of the continuance of it , so here , for the estate may continue by such power of nomination for many lives in perpetuity , and that as when at the common law they have in reputation and opinion of law a greater estate , may cut and sell trees , so here insomuch that the estate comes so neere to inheritance , he conceived that he might cut the trees by the custome , and that the custome is good ; and so he concluded , that judgement should be given , that the plaintiff should be barred in respect of customes ; and then to the third , that is , when a man lets land , and by the same deed , grants the trees to be cut at the will and pleasure of the grantee , there the lessee hath distinct interest : but if the lessor by one selfe same clause had demised the land and the trees , there the intendment is : but notwithstanding that there are severall clauses , and that he hath distinct interests , yet he conceiveth that the trees remaine parcell of the inheritance and free-hold till they are cut and are severed only in interest , that is , that may be felled and devided by the axe , for tythes shall not be paid for them if they exceed the growth of twenty yeares , not it shall not be felony for to cut those and burn them : and it is not like to an advowson , for that may be severed , and for that he conceived that if the custome had not warranted the cutting and selling , that the copy-holder had forfeited his estate , and that the lord might very well have taken advantage of it , and . assis . . a man sells trees to be cut at michaelmasse insuing , and before michaelmasse haukes breed in them , the seller shall have them , by which it appeares that the property is not altered : so that though they are not parcell of the mannor , yet they are parcell of the free-hold , insomuch that they are not severed in facto : and he agreed that lessee for yeares of a mannor shall take advantage of forfeiture , and need not any presentment by the homage , and littleton fol. , saith , that the lord may enter as in a thing forfeited unto him ; and so for attainder of felony : and if a copy-holder makes a lease for yeares , by which he forfeits his copy-hold estate : and after the lord grants the mannor for yeares , the lessee of the mannor shal take advantage of this forfeiture made before he had any estate in the mannor without any presentment by the homage : but here in this case the custome warrants the cutting of the trees by the copy-holder , and for that he concluded all the matter as above , that the plaintiff should take nothing by his writ . coke cheife justice agreed , and he said that fortescue and littleton , and all others agreed , that the common law consists of three parts . first common law. secondly statute law , which corrects , abridges , and exp'aines the common law : the third custome which takes away the common law : but the common law corrects , allows , and disallows , both statute law , and custome , for if there be repugnancy in statute ; or unreasonablenesse in custome , the common law disallowes and rejects it , as it appeares by doctor bonhams case , and coke , . h. , annuity : and he conceived that there are five differences between prescription and a custome : and all those as pertenent to this cause . first in the beginning , pugnant ex diametro , for nothing may be good by prescription , but that which may have beginning by grant , and also prescription is incident to the person , and custome to some place , and holds place in many cases , which cannot be by grant ; as in , h. . lands may be devised by custome , and so discent to all the sons , as in gavelkind , and to the youngest son in eurrough english , and others like , which cannot have their beginning by grant , but prescription and custome are brothers , and ought to have the same age , and reason ought to be the father . and congruence the mother , and use the nurse , and time out of memory to fortifie them both . secondly they vary in quality , for prescription is for one man only , and custome is for many , if all but one be not dead . thirdly they vary in extent and latitude , for prescription extends to fee-simple only , but custome extends to all interests and estates whatsoever , as appeares by pleading , for tenant in tayl , for life or yeares cannot prescribe in what estate , nor against the lord in his demesnes , but they ought to alledge the custome , and against a stranger they ought to prescribe in the name of the lord , and for that prescription b. copy-holder of inheritance may sell the trees , is not good , but such custome is good , and . ed. . . and the old reports . one tenant being a free-holder prescribes to have windfalls , and all trees-which are withered in the top and if the lord makes them in cole , to have so much in money : and so if they sell , and this for sale , and this was not-good , insomuch that it is alledged in the person as prescription , but if it had been alledged as custome , and to be burnt in his house , then it shall be good as appendant , and . ed. . barr . wilby saith to be adjudged that prescription to have turbary to be burnt in his house is good , but not to sell ; and . h. . . accordingly , by which it appeares that this may be very well by custome , and cannot be by prescription . thirdly he conceived that where a man may create an estate without nomination , there he may create that by nomination : and also that which may be done by the common law , m●● be done by custome , and that an estate may be created by such nomination , it appeares by the case , where a remainder is limited to him , which the first tenant for life shall nominate , and it is very good , and to prove that the custome is good , he remembred the custome of millam in norfolke , where he was borne , that is , that if any copy-holder will sell his land and agree of the price , that at the next court when a surrender is to be made , the next of his blood , and if he will not any other of his blood may have the land , and so every one shall be preferred according to the neerenesse of his blood , and with this also agreed the leviticall law , as it appeares , leviticus . chap. verse . which appoints this to be at the yeare of jubile , and the common law within one yeare after the alienation , and upon this he infers , that if custome may appoint heire in the life of the party , then a fortiore , he may appoint successor after his death , and he conceived that at the beginning , the copy-holders might have had absolute fee-simple of the lord , and they rather made choice to have such estate , insomuch that they did not know , if their children would be towardly or not , and for that content themselves with the nomination of a successor only , and so is the custome at hamm also in middlesex , if any copy-holder will sell , the next cleivener , which is he that dwelleth next unto him , shall have the refusall , giving so much as another will , and he which inhabits one the east part first , and the south and the west , and last the north shall be preferred , is the only way in his course , and there the successor is nominated by the heavens , and by the quarters of the earth , and so is the custome in glocester : and if any husband hath an estate for twelve yeares , his wife shall have it for twelve years also , and so ad infinitum , and this makes nomination , and so of free-hold , and so if it be good without nomination , it shall be good by nomination : and if the estate determine by the death of the tenant , without nomination when the lord revives the copy-hold estates , the priviledge also shall be revived : but he conceived that the tenant cannot nominate part to one and part to another , nor that divided in fractions : and he saith that this point hath been adjudged in the kings bench by foure judges against popham . jacobi between ball and crabb : and so he concluded this point , and to the second custome he said , he would speake to that transitive , but not definitve , and that it hath been adjudged . eliz. between powell and peacock that bare copy holder for life , could not prescribe to cut and ●ell the trees , otherwise of tenant in fee-simple , for he hath them cherished and fostered : and it is against common reason , incongruent and against the common law , that a copy-holder for life may cut and sell the trees , and custome ought to have reason and congruence , for . ed. . . leete cannot be belonging to a church , insomuch that it is incongruent , and so in writes case . coke tythes cannot be appurtenant to a mannor , insomuch that it is incongruent ; and a spirituall thing shall not be pertinent to a temporall , and so è converso : and so in the . assis . . and hill and granges case , com. turbary cannon be appurtenant to land , insomuch that it is incongruent , but it ought to be to a house ; so in time of ed. . tenant of the mannor prescribes to have free bull and bare , and it is not good for the reason aforesaid , otherwise it is of the lord of a mannor , and h. . . custome in leete to present common , and adjudged that it it is not good , insouuch that it wants congruity , for it is not proper to the court , and upon this he concluded that bare tenant for life cannot prescribe to cut trees , for it is not congruent that such an estate shall have such a priviledge , and this for three reasons . first insomuch that trees growing are parcell of the inheritance . secondly in respect of the perdurablenesse of them , for it shall be intended that they will indure forever , and so will not his estate , for this is as a shadow as job said , and 't is absurd that shadow should cut downe the tree : and also it is for necessity of habitation and plow and husbandry : and it is for the common wealth , that copy-holder of inheritanc might cut them by such custome , for otherwise he would not be incurraged , to plant and preserve them : and notwithstanding that in this case the custome be generall , that the copy-holder may cut down all , yet that shall have a reasonable construction , avd that this notwithstanding he leave sufficient for house-boot ; as if a man grants common without number , yet the grantor shall not be excluded , but shall have his common there , for excesse shall not be allowed . as if a man which distraines another for rent he shall not take excessive distress , the lessee for life excessive tallage of villaines , nor upon excessive fines of copy-holders , and so it was adjudged in heyden and sir john lenthorps case , that the lord shall not take all ; but leave sufficient for reparations , and so was the opinion of wray cheife justice in the of eliz. , in evidence to a jury , but here he is in nature of tenant in fee-simple , and it shall be intended that he hath cherished the timber , and every copy-holders estate granted is as a new grant , and hath affinity with tenant in fee-simple , and he agreed that if lessee for life , the remainder for years , remainder for life be , and the first lessee for life makes a forfeiture , he in remainder for years shall take advantage of that , and that it hath been adjudged ; that the lord of the mannor shall take advantage of forfeiture made by the copy-holder , without presentment made by the homage , and in one bacon and flotsims case , and so lessee for yeares of a mannor shall take advantage of forfeiture , notwithstanding the imbicillity of his estate , but the principall matter upon which he relyed was , that the trees were severed from the free-hold , and if the lessee dy , his executors shall have them , insomuch that they are meer chattells , and this . first in respect of the words of the lease , that is , demise , and to farm let the mannor , but bargain , sell , give , and grant the timber trees to be felled and carried away at his will : as if a man makes a lease for years , except the wood , and after grants the trees , the lease determines , the lessor shall not have the trees again . secondly , they are in two divided sentences , and also in respect of divided properties , for the executor of the lessee shall have them ; and quando duo jura , concurrunt in una persona , equum est ac si esset in diversis , also past at severall times , for the trees pass by the delivery of the deed , and the land doth not pass till livery and seisin be made . also the intent of the parties is not that they shall pass together , for if the intent were otherwise the law would not devide them , as it was adjudged hillary . eliz. in the lord cromwells case , where tenant in tayl was of a mannor , with the reversion to his right heirs , and he by his deed gives and grants the mannor , and the reversion of that , and includes letter of attorney within the deed to make livery , but livery was not made , and yet the reversion doth not pass , for his intent appeares that it should pass by livery and seisin , and not by grant ; and also in androwes case , the advowson appendant to a mannor shall not pass without inrolment of bargaine and sale , yet there were words there , that that might passe by grant , for this was against their intent , otherwise if a man makes a lease for life or years of a mannor , and grants the inheritance of the advowson by the same deed , and so of the case of eliz. dyer . lessor deviseth , grants , and to farm lets the mannor and the trees , and they passe joyntly ; and the reason is insomuch that it is but a joynt sentence , and not severall as it is here , also he intended , that the life of the lessee for life is not averred , and for that he shall be intended to be dead , and for that it is a severall grant of the trees of the free-hold , for the interest of them is setled in his executors , for if he had made sale of them before that the copy-holder had cut them down , then that had not been forfeiture , see . h. . ed. . eliz. dyer and then the case is this , tenant for anothers life of a mannor , makes a lease for yeares of the free-hold , of which an estranger hath a copy-hold estate for life in esse , lessee dies , and he conceived that the copy-holder shall not be an occupant , for it ought to be vacua possessio , and this was the reason of the judgment in adams case in eliz. where a man makes a long lease for years , and after intending to avoyd this lease , makes a lease to another old man for anothers life , to the intent that the lessee for yeares should be occupant , when the old lessee died , and so drowned his tearm , and after the lessee died , and resolved that the lessee for years shall not be an occupant , insomuch that there was not vacua possessio , and for this it seems to him that if lessee for anothers life , makes a lease for years and dyes , that the lessee for yeares shall not be an occupant , notwithstanding that he made speciall claim , and that for the reason aforesaid , but he agreed that a lessee for anothers life makes a lease at will and dies , there the lessee at will shall be an occupant , insomuch that his estate is determined , and yet there is not vacua possessio , according to h. . . but he did not say there should be an occupant in these cases , but cyted bracton fol. . that if the sea leave an island in the midst of that , the king shall have it , and not occupanti conceditur , and so he concluded that the plaintiff shall be barred , and that judgment shall be entred for the defendant , which was done accordingly , and it was afterwards agreed , upon motion in this case , whether it would not make difference if the trees were cut by the copy-holder before that he hath made his nomination or not , notwithstanding it was objected , that when he hath made his nomination , then he was only bare tenant for life , and the priviledge executed , and he in remainder was also tenant for life only , for he cannot nominate till he comes to be tenant in possession , but this notwithstanding , insomuch that they had power to make nomination , that is the first tenant again , if the second died in his life time , and the second if the first died in his life time , and so the peiviledge continues , all the justices continued of their opinions , and according to that judgment was entred for the defendant , and that the plaintiff should be barred , and should take nothing by his writ . trinity . jacobi . in the kings bench. the lord rich against franke. the lord rich brought an action of debt against franke administrator of one franke , and this was for a rent reserved upon a lease for yeares , made to the intestate , and the action was brought in the debet and detinet , for rent due in the time of the administrator , and verdict for the plaintiff , and after moved in arrest of judgement by the councell of the defendant , that this action ought to be brought in the detinet only , and not in the debet and detinet ; and chibborn of lincolnes inne conceived that the action was well brought in the debet and detinet , and to that he sayd that hargraves case coke is so reported to be adjudged , but he saith that he hath heard the councell of the other part insisted upon that , that this judgment was reversed , and for that he would under favour of the court speake to that . and hee conceived that the action so brought , is well brought ; for three reasons . the first shall be drawn from the nature of the duty , and to that the case rests upon this doubt , that is , if the administrator is now charged for this rent , as upon his own duty , or as administrator , and it seems to him not as administrator , but as upon his own duty , for he saith , that it is not debt nor duty till the day of payment , as littleton takes the diversity in his chapter of release , between debt upon an obligation and a rent , and the day not being incurred in time of the intestate , this cannot be his duty , therefore that ought to be duty in the administrator , and to the cases of h. . . where the executor of a lessee for twenty years , which had made a lease for ten years rendring rent , brought action of debt against the lessee for ten years , for rent incurred in the time of the executor , and this is in the detinet only , and the case of h. . . where an executor brings an action of debt upon arrerages of account of an assignement of auditors by themselves in the detinet only , and he sayd that in these actions , the executors were plaintiffs , and in all actions brought by executors where they are plaintiffs , and the thing recovered shall be asset , the action shall be brought in the detinet , but in our case they are defendants , and so the diversity , and to the objection , that may be made to this contract out of which this duty grows and arises , it was made by the intestate , and not by the administrator himself , and so this is a duty upon the first privity of the contract , he answered that there is great difference , when a thing comes due by the contract of the testator alone , and ought to be payed in his time , in which the executors are to be char●ed meerly as executors , there the writ shall be in the detinet , but when the thing grows due in part upon the contract of the intestate , and part by the occupation of the administrator , as in our case , there it shall be brought in the debet and detinet , & he cited a case which was adjudged el. in the common bench between scrogs & the lady gresham , where it was resolved that the lady gresham , was made chargeable to the debts of her husband by act of parliament , and action of debt brought against her in the debet and detinet , and debated if this were well brought , and after argument , adjudged that it was well brought in the debet and detinet , for though she was not chargeable for the debts of her husband , upon his own contract , yet where an act of parliament hath made her chargeable , and a debtor , and for that reason the action shall be brought against her in the debet and detinet , and to the principal case he cited the case of h. . . where it it said by babington & newton that if a man be lessee for years , and is in arrears for his rent , and makes his executors and dyes , and the executors enter into the land and occupy , in this case for the arrerages due in time of the testator , action shall be brought against them in the detinet , but for rent due in their own occupation , the action shal be brought in the debet and detinet , for that it rises upon their own occupation , and with this agrees h. . . and he sayd that he would demand this case of the councell of the other part , that is , a man hath a lease for yeares as administrator , and rent incurrs in his time , and he makse his executors and dyes , and administration of the goods of the intestate is committed over to another , against whom shall the action be brought for the rent , that is , against the executors of the first administrator , or against the second administrator : and it seems cleerly to him , against the executors of the first administrator , for their testator had taken the profits , which case proves that they shall not be charged meerly as executors or administrators , but as takers of the profits , &c. and occupiers of the land . and this was his second reason of the nature of profits , insomuch that they were raised by the personall labour of the executor or admistrator , and are their goods , as he sayd , and they have them not meerly as executors or administrators , and for that the action is well brought as it is , and he sayd , that the heir for debt of the father shall be charged in the debet and detinet , and yet this was the contract of his father , but he is charged in respect that he hath the land , and the occupation and profits of that , so here insomuch that the executors have the profit of the tearm , by the same reason they shall be charged in the debet and detinet , and he resembled the case to a case put in fitz. na. br●… in his writ of debt , where a woman sole hath a lease for years , and takes a husband , and the rent incurrs , and the wife dies , the husband shall be charged in the debet and detinet for this rent , and the reason is , because he hath taken the profits , so here the administrator hath taken the profits ; and is not answerable for the profits , unless they amount to more then the rent is . and by the same reason the action is well brought against him as it is . the third and last reason , was for the inconveniency ; and to that he sayd , if this action be brought in the debet and detinet , there is no inconvenience , but if it should be brought in the detinet only , then should the administrator be charged but of the goods of the dead , where if he be not charged of his own proper goods , peradventure he shall not be so carefull to pay his rent ; but would stop the lessor in his action , which should be trouble and vexation , and so by this reason also he concluded the action well brought in the debet and detinet , and this was gaynsayd by towse , george crooke , and harris of the other part , and it seems to them that it should be in the detinet only , insomuch that the cause of this action growes of the contract of the testator , and the tearm is assets in their hands , and the administrator hath the tearm as administrator , and by the same reason the occupation shall be as administration : and by consequence he shall be charged as administrator , and not otherwise , and then the action shall be brought against him in the detinet only , and that he shall be charged as administrator they cited the book of h. . . where it is sayd , if a man hath a lease for years and makes his executors , and the rent incurrs in their time , and action of debt is brought against them , and they make default , he which first 〈◊〉 all come by distress shall answer according to the statute of ed. . chapter . which book proves directly as they say , that they are charged as executors , and not otherwise , and then it followes that the action should be in the detinet , so it seems to them that in all actions , where they are named executors or administrators , that the action shall be brought against them in the detinet only , but in this action they ought to be named executors or administrators , for he doth declare of a lease made to the intestate , and for that it seems it shall be brought in the detinet only , and this was the reason of yelverton justice , which was of their opinion only against the other justices , and to that which was sayd that an action shall be brought against the heir in the debet and detinet for the debt of his ancestor they answered , that this is now become the proper debt of the heir , but it is not so in the case of an executor or administrator . and it seems to towse , that if an administrator hath a lease for twenty yeares , and makes a lease for ten yeares rendring rent , and brings an action for this rent , that the action shall be brought in the detinet only , for that this is a new contract made by the administrator , and he hath gained new reversion , because it was derived out of the lease for twenty yeares , and so this shall be of the same nature , and the rent shall be assets in his hands , and in proofe of this he cited the book in . ed. . . where an executor sold the goods of the testator , and the vendee made an obligation to them for the money , and the executors brought an action of debt upon the obligation ; and this was brought in the detinet only : and the exception was taken , because it was duty of their owne contract , and for that the writ should be in the debet and detinet , and yet the writ awarded good , because it comes in lieu of goods which they had as executors , and shall be assets in their hands as the goods should have been , and for that it is well brought in the detinet only : and they said that in the principall case it shall be mischeivous if the action shall be brought in the debet and detinet , for it may be the rent reserved , is of more worth then the profits of the land will amount unto , and that the executors or administrators have no other assets , now shall be the executor or administrator be charged with his own proper goods , which shall be mischeivous , and the case of . h. . . and . that is direct in the point was often times cited , and all these three things which were of councell with the defendant , informed the court that they were of councell with hargrave when the judgement given in the kings bench was reversed for error in this very point , and for this cause , because the action was brought in the debet and detinet , where it should be in the detinet only : and so they praied that the judgement should be hindered : but by the whole court except yelverton : and so it was adjudged , that the action was well brought as it is , and especially for the reasons given in hargraves case . coke . and to that which hath been said by yelverton justice , that in all cases where executors are charged by the name of executors or administrators , that there the action shall be against them in the detinet only : flemming cheife justice answered , that ●rue it is in all personall things , where they are named as executors , action shall be in the detinet : but as it is an action of debt for rent reserved upon a chattell reall , and an executor is as an assignee in law , and so charged as privy in estate , and not meerely as executor , and if he have no more assets then the rent , which he is to pay , he may plead nothing in his hands against all the world , and to that , that hath been said , that the executor hath been charged of his own goods : if the profits be not more then the rent , or the rent more then the profits , to this he said that in this case where the executor hath the tearme , and hath not any other assets , that they may wave this tearme : and in action of debt brought against him for the rent may plead to the occupation , and that recover : the reason of the diversity between this case and the case of . h. . dyer . is plain , for in an action of debt against the termor himselfe ; non habuit nec occupavit , is no plea , for there was a contract between them , and for this privity of contract is the lessee charged , though he did not occupy : but in the case of an executor the privity of the contract is gone , and so may be a difference : but yet it seemes if he have assets sufficient to pay the rent he cannot wave it : and to the case . h. . . that hath been cited that doth speake nothing , how the action should be brought : and the justices have seen the record of hargraves case , and the reversall of that : and they said the same error which was in hargraves case , is in this case , and for that bring your writ of error in the exchequer chamber if you will , for we so adjudge : and then it was moved that the lord rich was tenant in tayle , of part of the reversion , and tenant in fee-simple of the other part , and so it seemes that he ought to have two actions , because he hath as two reversions : but it was resolved by all the court , that if a man have a reversion of part in fee-simple , and of the other part in tayl , and makes a lease for yeares rendring a rent , he shall have but one action , both being in the hands of one : but otherwise it had been if the reversion had been in severall hands they should not joyne in debt , and for that fenner put this case ; two coparceners are of a reversion and they make partition , now the rent is apportioned , and they shall sever in debt : but if one dies without issue , and the part discends to the other parcener , now he shall have but one action of debt againe , and so it is if a man makes a lease of two acres rendring rent , and after grants the reversion of one acre to j. s. and of the other acre to j. n. now they shall sever in debt for this rent , but if j. s. and j. n. grant their reversions againe to the first lessor , he shall have but one action of debt , and so the exception dissalowed by all the court , and the judgement given for the plaintiff , according to the verdict . yates and rolles . the case was this , j. s. covenants by indenture with j. n. i. d. and a. b. to enter bond to pay ten pound to j. n. and j. n. dies , and his administrator brings a writ of covenant , and the question was insomuch that this ten pound was to be paid to j. n. if his administrator shall have action of covenant , or if the action shall survive to the other two , and it was moved by stephens , that the action shall be well brought by the administrator , for this shall be taken as a severall covenant , and this now is in nature of a debt , and enures only to him which shall have it , also the payment of the money which is the effect of the covenant shall be to him only , ergo the damages for the not performing of it shall goe to him also , and by consequence to his administrator : but it was adjudged insomuch that this was a joynt covenant , that this shall survive to the others , and not well brought by the administrator : so also resolved that insomuch that the words are , that he would enter bond , and doth not say to whom , that this shall be intended to the covenantees , and though that the solvendo is but to one of them , yet that is very good , as an obligation made to three solvendum to one of them is good , by fenner and by williams , obligation to two , solvendum ten pound to one , and ten pound to another , both ought to joyne in debt upon this obligation , and judgement for the defendant . sammer and force . the case was this , the lord of a copy-hold mannor where copy holders are for life , grants rent-charge out of all the mannor ; one copy-hold escheats , the lord grants that againe by copy ; the question was , if the grantee shall hold it charged or not ; and by the whole court but fenner , he shall not hold it charged , because he comes in above the grant ; that is by the custome ; the same law of statutes , recognizances , or dowers ; but the . of eliz. dyer . by the whole court , that he shall hold it charged ; but this hath been denyed for law in a case in the common bench , between swaine and becket , which see trinity . jacobi : but to coke justice it seemed , that if a copy-holder be of twenty acres , and the lord grants rent out of those twenty acres , in the tenure and occupation of the sayd copy-holder ( and name him ) there if this copy hold escheat , and be granted againe , the copy-holder shall hold it charged , for this is now charged by expresse words . trinity . jacobi , . in the kings bench. goodyer and ince . goodyer was plaintiff in a writ of error against ince , and the case was this , ince brought an action of debt upon an obligation in the common bench against goodyer , and had judgment to recover , and by his execution prayed an elegit to the sheriff of london , and another to the sheriff of lancaster , and his request was granted , and entred upon the roll , after which went out an elegit to the sheriff of lancaster upon a testatum , supposing that an elegit issued out to the sheriff of london , which returned nulla bona , and quod testatum sit , &c. that the defendant hath , &c. in your county , &c. upon which elegit upon this testatum , the sheriff of lancaster extended a forme of the defendants in a grosse sum of a hundred pounds , and delivered this to the party himselfe , which sold that to another ; and now the defendants brought a writ of error , and assigned for error , that this elegit issued upon a testatum , where no writ of elegit was directed to the sheriff of london , and so this writ issued upon a false supposall , and upon that two points were moved in the case : first , as this case is , if this were error in the execution or not . secondly , admit that it were error , if the plaintiff shall be restored to the tearme againe , or if to the value in money ; and it was moved by davenport of grayes inne , that this was no error ; and to that he took this difference , that true it is , when a man brings an action of debt in london and hath judgment , that without request of the plaintiff he is to have his elegit to the sheriffs of london , where originally the action was brought ; and in such case he cannot have elegit to the sheriff of another county , without surmise made upon the returne of the first elegit , and the surmise ought to be true , or otherwise it is error ; but where upon the request the elegit is granted to both counties at the first , and so entred upon the roll : it seems to him that insomuch that he may have both together , that if the surmise be false , that this is but a fault of the clarke , which shall be amended , and shall be no error ; and to that he cyted the case of edw. . . where an elegit issued upon a recognizance of a hundred markes , and the writ of extent was a hundred pounds , and the sheriff extended accordingly of the land of the defendant , and he came and shewed this to the court , and praied that the writ should abate , and a new writ to the sheriff , that he might have restitution of his tearme , and thorp said this is but a misprison of the clark , and the roll is good , and he shall have the land , but till the hundred markes are levied , and after this you shall have restitution of the land , which case proves as he conceives , that if the roll warrant a writ in one manner , and the clark makes it in another manner , that this shall not be error , and so in this case the roll warrants an elegit originally to the sheriff of lancaster , and though that this is made upon a testatum , this shall not be error , because warranted by the roll : and to the second point he would not speake , for if that were no error , the second point doth not come in question . hillary . jacobi . in the kings bench. marsam against hunter . in trespasse the case was this , copy-holder of a mannor , within which mannor , the custome was that the copy-holders should have common in the wast of the lord : the lord by deed confirmes to a copy-holder to have to him and his heires with the appurtenances , and the point was insomuch that his copy-hold was now distroied , whether he shall have his common or not : and davyes of linclones inne , argued the common is extinct , and his reason was , that this common was in respect of his tenure and the tenure is distroid , ergo the common , and he cited the case of ed. . fol. ult . where the office of the king of herraulds was granted to garter with the fees and profits , ab antiquo , and also ten pound for the office , and there it is resolved if the office be determined , the annuity is determined also , and the case in . ed. . . b. where an annuity was granted to john clark of the crown , and for tearme of life , and after he was discharged of the office , and the oppinion of the justices then was , that the annuity was determined , and in . ed. . assis . . assis . . a man gives land to his daughter and i. s. within the years of marrying , in frank-marriage , the husband sues divorce , the marriage being dissolved , the wife from whom the land first moved shall have the land againe , so in the principall case , insomuch that this common was in respect of tenure , the tenure being distroied , the common is gone , and this was all his argument , and he prayed judgement for the plaintiff , and another day brautingham of grayes inne seemed that the common remaines for three reasons . first of the nature of a prescription , and to that there are three manner of prescriptions . first personall prescription , and in that inhabitants may prescribe , as for a way or matter of ease , as it is said in . ed. . . ed. . and . ed. . and . coke , gatwoods case . secondly reall prescription , and this is inherent to the estate , and this is where a man prescribeth that he and all those whose estate he hath , &c. thirdly , locall prescriptions an that is , where a man prescribes to have a thing appendant or appurtenant to his mannor , and this is so fixed to the land , that whether soever the land goes , the prescription is concommitant unto it , and it seemes to him that this common is annexed to the land by prescription and so locall , and cannot be seperated but alwaies shall go with the land , into who soever hands that comes , ( but dixit non probant : ) and for this he supposed that the custome of copy-hold is that the copy-hold shall discend to the youngest son , if the copy holder purchase the free-hold and the fee-simple of the copy-hold , so that this is made free-hold , this shall discend to the youngest son ; so if a copy-holder by custome is discharged of payment of tythes in kind , so the office of the master of the rolles hath many liberties pertaining to it , and this is granted but durante placito , yet if the king grant that in fee as he may , yet he shall have all the fees and priviledges annexed to that , and so it seemes to him that this common being annexed to the land , though that the estate be increased , yet the common remaines , his second reason was of the manner of conveiance , and that was by confirmation , and if that conveiance had been by feoffment , peradventure the common had been gone : but a confirmation enures allwaies upon an estate precedent , and though that this somtimes inlargeth the estate , yet this doth not alter the estate , as to any priviledges annexed to it , his third reason was of the matter of the confirmation , and that is ; that he hath confirmed it with the appurtenances , and this seemes to him , admitting that the common had been extinct , yet these words with the appurtenances amount to a new grant of a common , as in the case of corody , in , ed. . . and . if the king grant to one such a corody as i. s. had , he shall have so much bread and beere as i. s. had , so here when he grants and confirmes that with the appurtenances , this is with all such priviledges as i. s. had ; so here when he confirmes with the appurtenances , this is with all the priviledges that the old estate had , and so this should be a grant of such common as was annexed to that , and so it seemed to him for these reasons that the common remaines ; to which it was said by davies of the other part , that he agreed al the manners of prescriptions , but he denied that it was a locall prescription , that is to land , but only to an estate , and this proves well the words of the prescription , for the copy-holder ought to prescribe , that is , that every customary tenant within the mannor , &c. so he hath his common in respect that he is customary tenant , and this is in respect of the estate which he hath by the custome , and not in respect of the land , and that this shall not enure as a new grant , he cited a case to be adjudged michaelmasse . and . eliz. in the kings bench , rot. , where in trespasse , the defendant justifies the lopping of trees in the wast of the lord , where the custome was that every copy-holder might shride the trees in the wast of the lord , and that he was a copy-holder there , and the lord granted to him the inheritance of his copy-hold , with all such lands , tenements , and commons of estovers pertaining to the copy-hold , and adjudged that insomuch that the customary estate was distroied , this custome was not now annexed to the land , but being determined with the estate cannot be said appertaining to it , and for that the justification ill ; and it seemed to him to be all one with the principall case and it was adjourned , and after in michaelmasse tearme . jacobi , it was adjudged that the common was extinct and not revived . hillary . jacobi . in the kings bench proctor against johnson the case hath depended seven yeares in this court upon a writ of error , was this ; two joynt tenants for yeares of a mill , one grants his estate severally to another and dies , the grantee doth not enter yet : the other reciting the lease to him made and to his companion joyntly , and that his companion died , so that all belonged to him as survivor ( as he intended ) grants all the mill to johnson , and all his estate , right , and interest in that : and covenants that the grantee there shall continue discharged and aquitted of all charges and incumbrances , or other act or acts done by him , and after binds himselfe in a bond to performe all grants , covenants , and agreements , contained in the indentures , according to the intent and meaning of the parties , and after the grantee of his companion entered into the halfe , and the question was , if the bond were forfeit or not ; and it was adjudged in the common bench that the obligation was forfeited : and the matter was argued this tearm in this court by yelverton of grayes inne , that the bond shall not be forfeited , for the bond was with condition to performe all grants , &c. according to the true intent and meaning of the parties , and then let us see what was the intent of the parties , and suerly this appeares by the recitall in the indenture , and for that he said that all appeares to him as survivor ( as he conceived ) so that he was doubtfull of that , and for that his meaning was , that if he had all , then to grant all ; and if he had but a moity , then to grant but the moity , and this proves well the words subsequent , where he saith that he granted the mill ( and all his estate , right and interest in that , ) so that he did not intend to grant more then his estate , and these words subsequent qualifie the generall words precedent , and so it seemes to him that the obligation shall not be forfeited . and sir robert hitcham the queens attorney to the contrary , and that the bond was forfeited , for he hath bound himself to perform all grants , and he hath not performed his grant , for he granted all the mill , and then though but a moity passeth yet he shall forfeit his bond , if the moity be evicted , and for that if a man which hath nothing in the mannor of d. makes a lease by deed indented to j. s. and binds himself to performe all grants , though that nothing passes , yet if he enter and be ejected he shall have debt upon his obligation , and he cited one yelvertons case to be adjudged , but did not tell when , where a man which hath nothing in the mannor of dale , covenants with j. s. to stand seised to the use of him and his heirs at michaelmas , and before michaelmas he purchases the mannor of dale , and it was resolved that no use shall be raised at michaelmas , for he had not the mannor at the time of the covenant , and also it was resolved that no action of covenant lies upon the covenant , but he sayd that it is a cleer case , that if he had entred into a bond to perform all covenants in the indenture , that the bond shall be forfeited , though that he could not have action of covenant upon the covenant , and also he sayd , that he well agreed the case of the lady russell , which was adjudged also ( but nescio quando ) where a man made a lease for years of the mannor of dale except one acre , the lessee binds himself to perform all agreements , and after the lessee enters into the acre , this shall be no breach of the condition , for this exception is no agreement , for nothing shall be sayd an agreement in an indenture but that which passeth in interest , and so he sayd that though that the lessee cannot have an action of covenant in the principall case , insomuch that this is so speciall , yet the bond shall be forfeited upon these words , grants , and agreements , and the covenant special doth not qualify the generall express grant ; and after four justices , that is flemming the cheife justice , willams , yelverton , and crooke , were of opinion that the bond is forfeited , and this for the generalty of the grant , & his intent was cleerly to pass all , but williams , if he had sayd , totum molendinum suum , or all his estate in the mill , there paradventure it should haue been otherwise ; and so a difference where he saith he grants the mill and all his estate in that , and where he grants all his estate in the mill , for in the first case all passes by the grant of the mill , and these words which are after , are but words explanatory , as ●rooke sayd ; and it was adjourned . and after in easter tearm next insuing , hitcham the queens attorney , came again , and prayed that the judgment be affirmed , and yelverton of grayes inne sayd , that he hath considered of nokes case . coke , and this was all one with this case , for the case was thus , a man lets a house in london by these words , demise , grant , &c. that the lessee should injoy the house during the tearm without eviction by the lessor or any claiming from or under him , and the lessor was bound to peform all covenants , grants , articles , and agreements , as our case is , and there by the whole court , that the sayd express covenant qualifies the generalty of the covenants by the words demise and grant , which is all one with our case , for first he granted , totum molendinum , and after covenant that he should injoy , &c. against himself , and all which claime , in , by , from , or under him , and after binds himself to perform all grants , covenants , articles , and agreements , and so it seems to him , that it is au expresse covenant , in this case as well as in other , and qualifies the generall covenant , implyed by the word ( grant ) and then the grantee being outed by a title paramount , no action of debt upon such obligation , and prayed that the judgment be reversed , and the justices sayd they would consider nokes case , and the next day their opinions were prayed again , and the cheife justice sayd that he had seen nokes case , and said , that there is but a small difference between the cases , but he sayd that some diflemay be collected . for first in our case , is a recitall of the estate of the grantor , that is , that all belongs to him as survivor , and for that this was a manner of inducement of the grantee to be more willing , and forward to accept of the grant , and to give the more greater consideration for it , but in nokes case there is no recitall , and so this may be the diversity . secondly , in nokes case , the tearm past all in interest at the first , and the grantee or lessee , had once the effect of this lease in interest of the lessor , but in this case when two tenants in common , and one grants totum molendinum , there passes but a half at the first , and so the grant is not supplyed for the other halfe , and then if the speciall covenant shall qualify the generall , &c. the grantee shall not have any remedy for a half at all , and this may be the other diversity , but admitting that none of these will make any difference , then he sayd that all the court agreed , that this point in nokes case was not adjudged , but this was a matter spoken collaterally in the case , and the case was adjudged against the plaintiff for other reasons , for that that he did not shew that he which evicted this tearm had title paramount , for otherwise the covenant in law was not broken , and for this reason judgment was given against the plaintiff , and not upon the other matter , and so the whole court against nokes case : and the cheif justice sayd , that to that which is sayd in nokes case , that otherwise the speciall covenant shall be of no effect , if it cannot qualify the generalty of the covenant in law , he sayd that this serves well to this purpose , that is , that if the lessor dyes , and any under the testator claim the estate , that the action of covenant in this case lies against his executors , which remedy otherwise he cannot have , for if a man makes a lease by these words ( devise and grant ) and dyes , action of covenant doth notly against his executors , as it is sayd in the . eliz. dyer . but otherwise upon expresse covenant , and then this expresse speciall covenant shall be to this purpose . and also it seems to him that if a man devise and grant his land for years , and there are other covenants in the deed , that in this case if the lessor binds himself to perform all covenants , that he is not bound by his bond to perform covenants in law , and he cited that to this purpose the books of h. . and ed. . b. tender , that if a man makes a lease for yeares rendring rent , this is covenant in law , as it is sayd , h. . dyer , and a man shall have debt or covenant for that , and yet if a man binds himself in a bond to perform all covenants where there are other covenants in the deed , and after doth not pay the rent , no action of debt lyeth upon this obligation , nor the nature of the debt altered by that , and he sayd that the munday next , they would pronounce judgment in the writ of errour accordingly , if nothing shall be sayd to the contrary , and nothing was sayd . hillary . jacobi . in the kings bench. bartons case . the case was this , a man was taxed by the parish for reparations of the church , and the wardens of the church sued for this taxation in the spirituall court : and hanging this suit , one of the wardens released to the defendant all actions , suits , and demands , and the other sued forward , and upon this the defendant there procured a prohibition , upon which matter shewed in the prohibition was a demurre joyned , and davenport of grayes inne moved the court for a consultation , and upon all the matter as he sayd the point was but this , if two wardens of a church are , and they sue in the court christian for taxation and one release , if that shal barr his companion or not . and it seems to him that this release shall not be any barr to his companion or impediment to sue , for he sayd , that the wardens of a church are not parties interested in goods of the church , but are a speciall corporation to the benefit of the church , and for that he cited the case in ed. . . the wardens of the church brought trespass for goods of the church taken out of their possession , and they counted , ad damnum parochianorum , and not to their proper damage , and the h. . . h. . . h. . . where it is sayd expresly , that the wardens of the church are a corporation only for the benefit of the church , and not for the disadvantage of that , but this release sounds to disadvantage of the church , and for that seems to him no barr , also this corporation consists of two persons , and the release of one is nothing worth , for he was but one corps , and the moyity of the corps could not release , and for these reasons he prayed a consultation , and yelverton to the contrary , and he took a difference , and sayd , that he agreed , that if the wardens of the church have once possession of the church , there in action of trespas brought for these goods , one warden cannot release , but this tax for which they sue is a thing meerly in action of which they have not any possession of that before , and there he cannot sue alone , and for that this release shall barr his companion . and the court interrupted him , and sayd , that cleerly consultation shall be granted , and flemming cheife justice , we have not need to dispute this release , whether it be good or not , and there is a difference where a suit is commenced before us , as if wardens of the church brought trespasse here for goods of the church taken , and one release , then we might dispute if this release were good or not , but when the matter is original begun before them in the spirituall court , and there is the proper place to sue for this tax and not any where else , we have nothing to do with this release , and for that by the whole court , a consultation was awarded . hillary . jacobi , . in the kings bench. styles case . upon a motion made by yelverton on the behalfe of one styles , the case was this , styles had a judgment in ejectione firme , and was put in possession by the sheriff , by an habere facias possessionem , and after the defendant enters againe , within the two weeks after execution , and the writ was returned , but not fyled ; and yelverton moved the court for another writ of execution ; and by williams he could not have a new writ of execution , but is put to his new action , and the fyling of the writ is not materiall , for it is in the election of the sheriff , if he will fyle or returne that or not ; but be sayd , if the execution had not been fully made , as he sayd there was a case , where the sheriff made an execution of a house , and there were some persons which hid themselves in the upper lofts of the house , and after the sheriff was gone , they came downe and outed those that the sheriff had put in possession before ; and in this case a new writ of execution was awarded ; but there a full execution was not made , and so the difference : but the cheif justice sayd , that if the sheriff put a man in possession , and after the other which was put out enters in forthwith , that in this case the court may award an attachment against him , for contempt against the court. hillary jacobi , . in the kings bench. gittins against cowper . custome of one mannor was , that if any copy-holder within the mannor committed any felony , and this be presented by the homage , that the lord may take and seise the land ; a copy-holder committed felony , and this was presented by the homage , and after the copy-holder was indicted , and by verdict acquit , and the lord entred , and if his entry were lawfull or not , was the question : the points were two . first , if the custome were good . secondly , admitting the custome to be good , if this verdict and acquittall shall conclude the lord of his entry . and walter of the inner temple argued that the custome was good , and that the lord was not concluded by this verdict : and to the first point he sayd , that it was a good custome ; first insomuch it might have a reasonable beginning , and for that he cyted the book of h. . where it is sayd , that such customes which might have reasonable beginning should be good , and to that he cyted a case which was adjudged , as he sayd , in eliz. and was one delves case , and the case was this , a quo warranto issued against delves , to know quo warranto he held a leet , to which he pleaded , that he was seised of such a messuage , and that he , and all those whole estate he hath in the said messuage have used allwaies to have and hold a leete there within the messuage : if this prescription , that is to have a leete appendant to a single messuage was good or not , was the question : and it was adjudged insomuch that by resonable intendment it might be that this house was the scite of a mannor , and the lord granted that with the leet , the prescription adjudged good ; and he sayd that many customes are grounded upon the nature of the place , and for that he sayd that this mannor was adjoyning to great woods , and it might be that the copy-holders committed felonies and outrages , and after fled into the woods , and there lived , and yet injoyed the benefit of their copy-holds , and for that it was reasonable for the lord to annex such a restraint and condition ; that is , if they committed any felony , this should be a forfeiture of their copy-hold , and this should be a meanes to bridle them to commit such haynous and odious offences : and that customes ought to have a respect to the place , he cyted the case of h. . where the custome of the isle of man was , that if any man stole a hen or a capon , or such small matter , that should be felony , but if he stole a horse that should not be felony , for a man may privily convey away a hen or might consume it , but for the smalnesse of the place , and being compassed with the water , he could not so doe with a horse ; so in . h. . that the married wife of a merchant in london , may sue and be sued by the custome , and the reason is that london is the cheife city and place of merchandise within the realme of england , and it is conceived that the merchants cannot be alwaies resident there but sometimes beyond sea , or other where about their businesse and affaires , and for that it shall be reasonable that his wife shall sue and shall be sued in his absence , and in time of e. . title prescription , the custome of hallifax , that if any felon be taken with the manner , he shal be forthwith beheaded , and this was as it seems for the better suppressing the common felonies there committed , and so he concluded for this reason , that this custome might have such reasonable beginning , and in respect of the place that should be a good custome . his second reason was , that this might begin at this day lawfully , therfore this shall be good , and for that he cited the case of h. . . that if a man make a feoffment upon condition , that the feoffee shall not commit felony , that this is a good condition , but he sayd , that he supposed that if the feoffee commit felony , and the feoffor enter into the land , and after the feoffee is attaint of this felony , that now the lord shall enter by escheate , and his reason was , that the statute of westminster . de quia emptores terrarum , prohibits any man to make a feoffment , to the prejudice of the lord , to his wardship or escheat . his third reason was , that this was a good custome , insomuch that this was annexed to an estate created by custome , and for that he cited one skeggs case to be adjudged in yeare of eliz. and was thus , that is , the custome of a mannor was , that a marryed wife copy-holder might surrender to the use of her last will , and after might devise to her husband , and it was adjudged , insomuch that this was annexed to her estate which begun by custome , this was a good custome , and the of ed. . at the common law such custome is voyd , and after he cited a judgment in the point given in this court , . of eliz. rot. . or or . that the same custome was adjudged a good custome : after he answered some objections which might be made against this custome , that is . first for the uncertainty of the time when the presentment shall be by the homage , and to that he sayd that the lord may make that when he will , and the time doth not take away the offence , and no prejudice upon that discends to the heir , but is to his advantage . secondly , because no number certaine of the homage , and that every tryall must be by twelve , and to that he answered , that we are not now in point of tryall , but only for the information of the lord. thirdly , this is against the nature of a court-baron to inquire of felonies , and to that he said , there is not any inquiry made here , but only to inform the lord , and such a thing is not against the nature of the court which inlargeth this . fourthly , the offence is against the king , and a common person shall not have the punishment of that , to that he sayd the king shall not have any benefit of it , for he shall not have any escheat of copy-hold lands for treason or felony . fiftly , this is against the kings prerogative , to that he sayd , that custome may be against the prerogative of the king , as if a man claim waife or stray by prescription , these are things given to the king by his prerogative , and yet prescription for them is good , and so he concluded this first point , that the custome was good . to the second point he conceived , that this verdict and acquittall shall not conclude the lord , and for that he sayd , that at the common law , if a verdict had been given and no judgment upon it , the party was not concluded to bring the same action , ed. . . then comes the statute of h. . and this outs non-suit after verdict , and yet if verdict be imperfect , or finds a thing not in issue , there non-suit may be after verdict , as it is sayd in ed. . . and if verdict be given in the point , and judgment upon that , doth not conclude the party to have action of more high nature , as it is sayd in ed. . and assise . and hudsons ease in the coke , and as it is in tryalls of land , so it is in tryalls of life , as r. . . h. . . then if the party himself shall not be bound by verdict , a fortiori , a stranger shall not be , also every estoppell there ought to be a matter of estoppell , for the jury is not sworn to give their verdict according to the truth in deed , but according to the evidence to them given , and then if faint evidence or no evidence be given , it shall be hard that this shall conclude any of his right , also there is no party to be estopped because a stranger as is aforesayd , also the acquittall is in such manner , that is , that he hath not committed the felony in manner and form as in the indictment is alledged , and this doth not answer the custome , because generall , so it seems to him , that this shall not be any conclusion to the lord , and so for both points the entry not congeable . and stevens to the contrary , and it seems to him breifly that the custome was not good , and he denyed the rule , that is , that this might have reasonable beginning by agreement of parties shall make a custome good , and for this littleton saith in his chapter of villainage , that if the lord of one mannor will prescribe to have fine , if any of his tenants marry their daughters without his license , this is a void custome , and yet it may be such agreement between the parties at the first , and it seems the custome not reasonable , for it is too generall , that is ; if any tenant , and this doth not exclude infants . secondly , if any felony be committed , and this includes petty larceny , and maime by involuntary means , for these are felonies , and for that see , h. . . h. . that in appeal of mayme , a man shall count felony , and yet it shall be hard that a man shall loose his land for these felonies . secondly , homage cannot inquire of the fact of felony , but of the conviction of felony , and so it seems to him the custome ill , and to the other point it seems that the lord shall be concluded , and to that that hath been objected that the lord is a stranger to the verdict , and for that cause shall not be estopped , he said that the lord is no stranger , for in this case every man is party , and every man may give evidence for the king , and he cited the case in the time and title of mortdancester , where the case was , where a man was as principall for the death of j. s. and another as accessary in receiving the principall , after the principall was out-lawed , and the accessary hanged , and the lord seised the land of the accessary for escheat , after came the principall and reversed the out-lawry , and was found not guilty , and the heir of him which was hang'd , entred upon the lord , and adjudged , insomuch , that there cannot be an accessary , unless there be a principall ; that the entry of the heir was lawfull in this case , so he sayd in this case , insomuch that the copy-holder is acquitted by verdict and found not guilty , and seems to him that the entry of the lord should not be lawfull , and by the whole court the custome was good , but they did not deliver any opinion upon the second point , for they moved the parties to composition . hillary . jacobi . in the kings bench. barwick and fosters case . a man made a lease for two years at michaelmas , rendring two shillings yearly during the tearm , at the feast of the annunciation of our lady , and michaelmas or ten dayes after , at the feast of saint michaell in the last year the rent is not paid , the question was what remedy the lessor hath for his rent of this halfe yeare , and the opinion of flemming cheife justice , and williams was , that he hath no remedy . and first they sayd , as this case is , the lessee hath election to pay either upon the feast or upon the tenth day after , and that is for the benefit of the lessee , then he hath made his election not to pay that at the feast of saint michaell , then it is cleer that the lessor hath no remedy by way of distress , for the tearm is ended before ; and by action of debt upon the contract , he hath no remedy as it seems , as this case is , for the contract is that the rent shall be paid yearly during the tearm , then when the tearm is ended , the contract is determined , and for that the cheife justice sayd , that if a man makes a lease at michaelmas for a yeare , rendring rent yearely at our lady day , and the ninth of october which is after michaelmas , that the lessor hath not any remedy for the rent of the last halfe yeare , for that is not reserved to be payd yearly , according to the contract : and yelverton justice agreed that the lessee hath election as above , but he saith , when that is behinde the tenth day after michaelmas , then the lessor shall bring his action of debt , and declare that the rent was behinde at the feast of saint michaell , and shall not make mention of the ten dayes after ; and coke justice sayd , that it seems to him that the lessee shall not have the benefit of these ten dayes after the last feast , for the words of the lease are ( rendring rent yearly ) during the tearme at the feasts aforesayd , or ten dayes after ; so that the lessee shall have the benefit of these ten dayes during the tearme , but not after , then he shall not have these after the last feast of saint michaell , for then shall the tearme be ended : and after in trinity terme , jacobi , the case was moved againe ; and then flemming cheife justice conceived , that the lessee shall not have ten dayes after the last feast , and this upon construction to be made reasonably , for otherwise the tearm being ended , the contract should be determined with the tearm , and so the lessor should be without remedy for his rent , and he sayd , that reservations are not taken so strictly , according to the letter . and for that he cited the case of hill and granger in the com. fol. . where a man makes a lease for a year : and the lease was made in august , rendring rent yearely at the annunciation of our ●ady and michaelmasse , upon condition of re-entry : in this case the first payment shall be at the next michaelmasse after the making of the lease , and not at the annunciation of our lady , though this is first in words , and this by reasonable construction , for otherwise this word ( yearely ) shall not be supplied , and of this see the action , and so he said in this case , rent is reserved yearely during the tearme , at the feasts of the annunciation of our lady or michaelmasse or ten daies after , he shall not have ten daies after the last feast : but williams held his old opinion that the lessor hath no remedy for the last halfe years rent , and it was adjourned . hillary . jacobi , in the kings bench. grymes against peacocke . in terspasse for his close broken , the defendant justifies , that it was used within the mannor of d. that every farmer of such a house ( and averred , that that had been allwaies let to farme , ) had common in the lords wast : the house came into the hands of the lord in possession : and he granted the house and the wast to j. s. in fee , j. s. bargaines and sells the house to j. n. with all commons , profits , and commodities , used , occupied , and pertaining to the same : and after grants the wast to another : if the grantee of the house shall have common in the wast was the question : and yelverton argued that the common was gone , for if he shall have common , this shall enure as a new grant of a common , but this cannot so enure for two reasons . first , when a man will grant a common , he ought to shew the place in certaine where the grantee shall have this common , or otherwise the grant is void ; but here no place is shewed , and for that it cannot enure as a new grant of a common . secondly , if that be a new grant , yet this hath reference to the usage , that is , quod vsitatum est , &c. and this vsitatum is void , for it seemes to him that lessee for yeares cannot alledge a usage , for every ( vsitatum ) ought to go in one selfe same currant , not interrupted as in ths case of a coppy-hold : but here every new lease , is a new contract , and so the usage is interrupted , and then the grant having the reference to the usage , and that is void usage , nothing shall passe by this grant , and for that in long , . ed . . if a custome be against law : and that is confirmed by the act of parliament , this is void confirmation , for it hath reference to a void custome , so here this grant hath reference to the usage , and for that it seemes to him that the common is gone . hutton serjeant to the contrary , and that the grantee of the messuage , shall have common , for this usage is not a thing by strictnesse in law appertaining to the land , but this hath gained his reputation , that that shall passe very well in a conveiance by apt words : and for that it will not be denied , but if a man makes a lease for years to one , and grants him common for all his kine , &c. and after this lease expires , and he makes a new lease , and grants such commons as the first lessee had , that this shall be a good grant of common to the lessee : so he said in this case , this grant of the house with all profits and commodities used , occupied , and appertaining to the said messuage , shall be said a grant of such common , which other lessees of this manner have used , and this by reasonable construction in law , to make good the conveiances of lay-men , according to the common speaking , for benigne sunt faciende interpritationes chartarum , &c. and for that he cited the case of hill and grange in the comment : where the case was : that a man made a lease for yeares of a house and a hundred acres of land appertaining to that , though the land be not appurtenant to the house , yet insomuch that this hath been usually occupied with the house , this shall passe as appertaining to it , and so . assis . . a man makes a lease for life rendring rent , and after grants over the rent to j. s. and dies : the heire grants and confirmes to the grantee and his heires , the same rent with clause of distresse , and the tenant for life dies , now is the rent reserved upon the estate for life determined , and yet this shall enure as a new grant of another rent in quantity : so in sir moyle finches case , the case of uses , and durham in ejectione firme : a lease was pleaded of a mannor , whereof the feilds in which , &c. were parcell : and issue was joyned , quod non demiset manerium : and upon this issue found it was , that there were not any free-holders , but diverse copy-holders , and this was allwaies knowne by the name of a mannor , and it was adjudged that this shall passe for him which pleads the demise of the mannor : then if in judiciall proceeding the law makes such favourable construction to make that passe by a mannor which is no mannor in truth , because it hath been usually known by the name of a mannor , then it seemes to him , a fortiore , that no more beneficiall construction shall be made in conveiances , which allwaies shall be construed to the intent and meaning of the parties , and so it seemes to him that the common remaines , and crooke , yelverton , and the cheife justice flemming conceived that in reason he shall have the common , but they did not give any absolute opinion as to that : but williams justice to the contrary , and that the lessee for yeares cannot have more , then he contracted for in his lease , and then the vsitatum void , and the lessees have taken that by wrong : and this grant having reference to a void and wrongfull usage , is not good , and it is adjourned . hillary . jacobi . in the kings bench. stydson against glasse . stydson brought an ejectione firme against glasse : and upon speciall verdict the case was this : that is , that one holbeame was seised of the land in question in fee , and made a lease for life to margret glasse , and after covenanted with john glasse husband of the said wife lessee , that before such a day he would levie a fine to a. b. and to the heires of a. of the same lands , which fine should be to the use of the said glasse for sixty yeares , to begin after the death of the said margeret glasse , with proviso within the same indentures , that if the said holbeame at a certaine day should pay to the said john glasse a hundred pounds , that then the lease should cease , and then of that the conusees should stand seised to the use of the said john for his naturall life , and after the said holbeame disseised the said margeret glasse the lessee , and made a feoffment to the use of himselfe and one alice , with whom he intended to marry , and to the heire of their two bodyes begotten , the remainder to the right heires of the feoffor , and after the sayd feoffor and alice intermarried , and after the said holbeam tendred a hundred pound to the sayd john glasse the lessee for years , and after the sayd john glasse assigned over his tearme , and after the sayd holbeam by deed indented and inrolled , bargained and sold the said land to the said john glasse and his heir , and after iohn glasse dyed , and the inheritance discended to the said margeret glasse lessee for life , the conusor dies , his wife enters , and lets to the plaintiff , the defendant enters upon him , and the plaintiff re-enters and brings trespass against the defendant , which justifies as servant to the assignees of the tearm , and if upon all the matter , &c. and it was argued by nicholls serjeant for the plaintiff , and he moved three points in the case . first if by this feoffment upon such condition as this is , had been extinct at the common law , or remaines to the feoffor notwithstanding the feoffment , for if he have interest in the land , then it is extinct by the livery , for it is given of the feoffor and past out of him , and yet the feoffee cannot have , and for that it is extinct , but if it were but authority , as in h. . authority to sell the land of the devisor , then the authority remaines , and is not extinct by the feoffment of the land , so power of revocation to a stranger which is but authority is not extinct by a feofment : albaines case coke . a. but if it be right in interest , then it is extinct by the feofment , as power of revocation to the party himself , resolved to the point in albains case , so of title to a writ of deceit , ed. . so of a title to be tenant by the curtesie , h . . but by edw. . by a feoffment made by a parson of land of his rectory , the tythes of that land are not extinct , but remaines notwithstanding the feoffment , for that it was collaterall to the title of the land , as the cases of authority are , which were put before ; then if this power to alter a lease by payment of a hundred pound be not any right nor interest , but a collaterall power , and the authority not extinct by the feoffment , but remaines ; but admitting that it is in nature of an ordinary condition , and that before the statute it should be extinct by the feoffment , for that it is the gift of the feoffor , and yet it is not transferable to the feoffee : if now by the statute of h. . which inables grantees of reversions to take advantage of conditions , if the condition be not transferred to the feoffees , and so over , to he to whose use , that then by consequence this remaines to the feoffor , which was the he to whose use , and then the tender of the money after , well may alter the lease ; it seems that so , for before the statute if a lease for yeares had been made upon condition to cease , and after the lessor enters upon the lessee and makes a feoffment , and the lessee re-enter , and breakes the condition , the feoffee shall take advantage of that condition , being by way of ceasing of an estate ; so after the statute , the feoffee of the lessor shall take advantage of the condition of re-entry , and of every other condition annexed to the reversion , as well as of one condition to cease , before the statute , and as well that every grantee shall doe since the statute , for though that he comes in by feoffment , which is wrong to the lessee , yet after the re-entry , the lessee is in nature of a grantee : and he cyted the case of clyfford error , . ed. . to be , that lessor entred upon his lessee and made a feoffment , if the lessee re-enter , the rent and the condition are revived againe and the feoffee shall have both , see cliffords error , . ed. . dyer the last case , and . m. dyer . . but there is not any such matter , and for that it seemes that he hath another report of this case of cliffords error , or otherwise he meant some other case and not cliffords error , so is our case the condition being inherent to the reversion shall passe with the reversion , be that by grant or feoffment ; and when the reversion is revived by the entry of the lessee , the condition shall be revived also , and it is the more strong , insomuch that the condition is , that upon the payment of the money the lease for years shall cease , and not that the lessor shall re-enter , that such feoffee shall take advantage of a condition by way of ceasing of that at the common law : . point , and for the second point he would not argue against that , that he took to be cleer , and for that he conceived the law to be against his clyent in this point , though that after the disseisin and feoffment the free-hold could not accrue . thirdly , the third point was , that after the disseisin of the tenant for life , he that had future interest of a tearme to begin after the death of the lessee for life ( during the disseisin ) assignes over all his interest , if this assignement be good or not , and he argued that not , for by him the disseisin of the tenant for life , the future interest to commence after the death of the tenant for life , is converted into a right , and right of a tearme cannot be transferred over , for though that lessee for years to begin presently , may grant over his interest before his entry , and it is well for that , that it is an interest forth with , yet if before his entry the lessor be disseised by a stranger , yet by him now , he cannot grant his interest over for that , it is converted into a right of a tearme , but he ought to re-enter before that the lessee may grant over his tearme , so in our case , though that before the disseisin of the lessee for life the future interest was transferrable over , for that , that it was interest , though that it was not a lease in posaession , yet when the tenant for life was disseised then his interest of a tearme was turned into a right of a tearme , and then it is not transferable over till the re-entry by the lessee for life , and he said that it was resolved by the . cheif justices in the star-chamber as he hath heard , that if lessee for years be , and before his entry a stranger enters , and disseises the lessor , that now the lessee cannot grant his tearme before that the lessor hath entred , or he himselfe hath gained the tearme in posaession : and so it seemes to him , that the future tearme doth not passe by this assignement , and then it is extinguished by the purchase which commeth after , and then the justification of the defendant as servant to the assignees not good : and so upon all the matter he praied judgement for the plaintiff . williams justice said , that it was cleer , if a man have a lease for years , to begin after the death of a lessee for life , as is the case at the barr , that though that the lessee for life be disseised , yet the interest remaines good interest to the lessee , and is not turned into a right of a tearme , and for that he may grant it over , notwithstanding the disseisin , and so is sapphins case . coke . otherwise if the lessee for years had been any time in posaession by force of his lease , and it is adjourned . at another day the same tearme the case was argued againe by yelverton of grayes inne of the other part , that is for the defendant , and first he said that the plaintiff which claimes under the wife , of hlobeame hath not any right to one moytie cleerely , for the husband and the wife were joynt-tenants before the coverture : so that they take by moyties and not by intirities , and when the husband bargaines and sells all , that is a seperation of the joyntenancy , and his moytie is gone for ever , as it appeares by . m. dyer . . so that for one moytie it is cleer , that the plaintiff hath not any right any way , how ever the case prove , for the other moytie , and this moytie which was conveied by the husband is discended to the defendant , which hath no speciall outer found by the verdict : but only that he entered which he well might , having the other halfe , and then no trespasse found by the jury , and also the damages found by the jury are intire , and then being no cause of damages for part , there shall be no judgement for the residue : and the first point that he moved was , if after this disseisin and feoffment over , the feoffor might tender the money to cease the first estate , and it seemes that not , for the free-hold cannot accrue , as it seemes to him by any tender after his disseisin , and so it hath been agreed to him as he said by the councell of the other part , and then by him this condition consisting of two parts , this is disseisin of one estate and accruing of the other estate , if by this desseisin the condition be distroied , for the accruing of the estate , it seemes also that it shall be distroied as to the ceasing of the first estate ; for if a condition be distroied in part it shall be distroied in all , for it is intire and cannot be apportioned , and by consequence if one estate cannot accrue , the other shall not cease : and he resembled it to the cafe in the . h. . . and perkins , condition being in the coppulative one part being dispenced with the other , was a discharge , so when a man hath election to do one of two things , if one be discharged ( though that it be by the act of god ) as by death , &c. yet the other shall be discharged by the law , as it was in langtons case . coke . a fortiore when one is discharged by the act of the party , also by him if he had made any feoffment after this desseisin , yet the very disseisin would destroy the accruing of the estate , for though that he do not gaine fee by the disseisin but only estate for life , and retaines his old reversion in him , according to . h. . . yet the fee and the free-hold are so conjoyned by discent of that estate alters an entry , as it appeares by . ed. . entry congeable . and if he in reversion disseise tenant for life , the contingent uses shall never rise , by chidleys case first of coke . condition that he retaine his old remainder , no more of the accruing of the fee in our case , for by him it appeares by . assis . and nicholls case com. that estate ought to accrue upon posaession , or at least upon an estate in being , and not upon a right of an estate only : and for that he cited . r. . pleasingtons case , lease for years upon condition , that if the lessee be outed he shall have fee , though that he be outed yet he shall not have fee , for that , that at the time of the condition performed he had but a right of tearme , and no tearme in posaession , so is our case after the disseisin , he having but right the estate cannot accrue . secondly if the grantee , or he to whose use , may performe the condition , either by the common law , or by statute law : and he conceived that none of these might performe that , for first at the common law , though that grantees of reversions may take advantage of a condition by way of cesser of estates , upon the condition performed , yet this is only when the condition was to be performed of the part of the lessee , and so was the case cited by serjeant nicholls of h. . but if the condition were of the part of the lessor , otherwise it was , as the book is in h. . entries . and then a fortiori here , the assignee of a disseisor cannot performe the condition , which may be performed of the part of the lessor . but he agreed the case of littleton , that an assignee of an estate may perform a condition in preservation of an estate , otherwise of an assignee of a reversion , in destruction of an estate , so at the common law it is clear , that the feoffee cannot perform the condition , and by him it is cleerly out of the statute of h. . for this statute doth not extend to a collaterall condition , as it appears by spencers case . coke , and so hath been many times after this adjudged , and this is a collaterall condition , ergo , &c. and so concluded , and prayed judgment for the defendant . nicholls serjeant to the contrary , and that this disseisin hath not suspended the condition , but that he may pay the money , and make the estate to cease notwithstanding the disseisin , for-that , that the condition is collaterall , like to the of ed. . and h. . that where a feoffee upon a collaterall condition takes back an estate for years , yet this shall not suspend the condition , but it may be performed or broken , notwithstanding the lease , for that that it is collaterall , so in our case , for suppose that the condition had been if he marry mistris holbeam , that then his estate shall cease , and as well it shall be upon the tender of the money here , and he said that this case was late in the common bench. this feoffment was made to the use of the feoffor for life , remainder to another for life , the remainder to the third in tayl , the remainder to the right heirs of the feoffor in fee , with power of revocation , and after the feoffor lets for years , and during the tearm he revokes the mesne remainders , and it seems to the justices that well he may , for that that the lease for years goes only out of the estate for life , as he sayd , and for that the power of revocation as to the mesne remainders was not suspended , quere of the truth of this case in the common bench , for perchance it is not truly collected , but so entred , and so he prayed judgment for the plaintiff . flemming cheife justice sayd , that the point of the principall case would be , if by the wrong of the lessor the estate of the lessee shall be prevented to accrue , then he might perform the condition to determine the ancient estate , that is , the lease for years , and it is adjourned , pasch . . jacobi . in the kings bench. earle of shrewsbury against the earle of rutland . in a writ of errour , the earle of rutland brought an assise of novel disseisin against the earle of shrewsbury and four others , and the plaint was of the office of the keeping of the park of clepson , and of the vailes and fees of the sayd parke , and of the herbage and paunage of the same , and the demandant made his title , and alledged that the queen eliz. was seised of clepsam park in fee in right of her crown , and that she being so seised by her letters patents under the great seal , granted unto one markham the keeping of the park of clepson ; with the vailes and fees ; and the herbage and paunage of the same park for his life , after the queen eliz. reciting the grant made to markham , and that markham was alive , gave and granted by her letters patents , to the earl of rutland the office of the keeping of the sayd clepson parke , with the fees and wages to that appertaining ; to have and to hold to him for his life , after the death of markham or after the surrender , or forfeiture of his letters patents , and further granted the herbage and paunage to the sayd earle of rutland for his life , and doth not say when this shall begin , after which the queen eliz. died , and the eee-simple discended to our lord the king , which-now is as lawfull heir to the crown of england , which granted that to the earle of shrewsbury , after which markham dyed , and the earle of rutland entered , and was seised till the earle of shewsbury with four others entered upon him , and dissersed him , and to that the tenants alledged no wrong no disseisin , and when the assise was to be taken in the country , the array was challenged by the tenants , for that that one of the tenants in the assise , had an action of trespasse hanging against the sheriff , and this challenge was not allowed , and the assise being perused at large for the herbage and paunage , they found , that the said queen eliz. was seised of clepson park as aforesaid , and by her letters patents as afore is rehearsed , granted the keeping of this to markham for his life , and further by the same letters patents granted to him the fees and wages to that belonging , and further granted by letters patents , and doth not say ( easdem ) to him , the herbage and paunage of the sayd park , and that the queen after the reciting the grant made to markham , and that markham was alive , granted to the earle of rutland the keeping of the sayd park and vailes and fees , to have and to hold after the death , surrender , or forfeiture of the letters patents of markham for his life . and further by the sayd letters patents , shee granted the herbage and paunage of the same park to him for his life , as more fully appears by the letters patents , and it was not expressed , as to the herbage and paunage when that began , and they found the death of markham , and that the earle of rutland put two horses into the sayd park to take seisin of the sayd herbage and paunage , and they found further the grant of the king to the earle of shrewsbury of the fee-simple , and of that prayed the advise of the court , and to the keeping of the park they found the seisin and disseisin of that , and of the fees and wages to the dammages , &c. and this being adjourned into the common bench , was remanded into the country , and there judgment was given for all for the demandant , and after this it came into the kings bench by writ of errour , and the errours assigned by the councell of the tenants , and argued at the barr were foure . the first was that the earle of rutland himself , between the verdict and the judgment hunted in the park and kild a buck , and took a shoulder of that for his fee , and so he hath abated his assise , and so the judgment was given upon a writ abated , and therefore they cannot plead that in abatement , insomuch that it was mesne betwixt the judgment and the verdict , they assigned that for errour . the second was , because the principall challenge was not allowed , where that ought to have beene allowed , and the challenge was , that one of the tenants had an action or trespasse hanging against the sheriff before the assise . the third was , because the jury have found the letters patents made to markham , and that the queen granted to him by her letters patents the custody of the parke of clepson in clepson . and further by the same letters patents granted the vailes and fees , &c. and further granted the herbage and paunage , and have not found that this was granted by the same letters patents , and then if this be not granted by the same letters patents , then there is not any grant of this to the earle of rutland , because there is no receitall of the patent by which the herbage and paunage was granted to markham . the fourth errour was , that they have erred in point of law , and to that the point is but this , the king grants the herbage and paunage of a park to one for life , and after reciting that grant , and that the patentee is alive , grants that to another , and doth not say when that shall begin , and it seems to them that the argument for the plaintiffes in the writ of errour , that this was a voyd grant , and so the judgment erronious , but i have not the report of the arguments of the conncellors at the barr , but only of the judges , which moved two other errours in the case , not moved by the councell at the barr , and crooke justice rehearsed the case as before . and to the first errour he conceived that this is no errour , and that for two reasons , first , he tooke a difference betweene a thing which abates the writ by plea , as if a man brings an assise against another , and mesne between verdict and judgment , the plaintiff dies , this matter shall abate the writ without plea , and for that if judgment be given upon such verdict , the judgment is erronious , but in our case an entry doth not abate the writ without pleading that , and now as this case is , this cannot be pleaded , being between verdict and judgment , and for that it shall not be assigned for errour , see assise , where this difference is taken , and agreed . secondly , admit that this entry might have abated the writ in facto without plea , yet there is no such entry alledged , which might abate the writ in facto without plea , for the entry is alledged that the earl of rutland entred to hunt , and kild a buck , and took a shoulder of that for his fee , and it seems that this is no such entry that shall abate the writ , for he hath now entred to another purpose to hunt , the which he could not do , but the entry ought to have been alledged that he entred to keep , for in every entry the intent of the entry is to be regarded , and to this purpose he cited the case of assise of freshforce , com. . and . where entring into the seller hanging the assise of that , to see the antiquity of the house , there was no entry to abate the writ and the case of assise . where the disseisee , hanging the assise comes and sets his foot upon the land , but takes no profits , and adjudged that he should recover notwithstanding , so in this case the intent is not shewed , that is , that he entred to keep possession but to hunt , nor was it such entry which should abate the writ , and to that which is sayd that he kild a buck , and took the shoulder of that for his fee , this doth not help , for if that had been a buck which he might to have kild by vertue of his office , he ought to have shewed his warrant , for otherwise a parker cannot kill a buck if not that it be for his fee , and then he shall have the buck , and not a shoulder only , also it is alledged that he took a shoulder , and doth not say the best shoulder or the right shoulder , and this ought to be shewed in certain . and so for he first errour he couceived that this is no cause to reverse the judgment , and to the challenge he sayd , that he would speake to that at the last , and for that he now spake to the errours supposed in the grant . and first to markhams grant , where the jury found the queen eliz. granted to him the keeping of the park , and by the same letters patents grant the fees and wages , and further granted by her letters patents , and doth not say ( easdem ) the herbage and paunage , it seems to him that this is very well , for two reasons . first , insomuch that there is a copulative , which is this word ( et ) and also a relative , which is this word ( vlterius ) and this word conjoynes the matter precedent with the subsequent , and the word ( vlterius ) hath necessary relation to the same letters patents , and so ex precedentibus & subsequentibus , the iury hath well found the matter . secondly , these words are supplied in the second patent , for there the jury have found that the queene hath granted that to marham by the same letters patents , and so for these two reasons he concluded that this is no error to reverse the judgement : and to the patent made to the earle of rutland , it seemes to him also , that this is very good , and all that he said in effect was , that in construction of the patents of the king , such exposition is to be made , that if any reasonable meaning may be conceived , they shall not be defeated but shall stand good : and so he said in our case , that it is necessarily intended that this was also to begin after the estate of markham determined , and for that good : and he said that a man ought not to make a curious and captious interpretation of the kings patents , for talis interpretatio injure reprobatur : and to the challenge , that seemed unto him a principall challenge , and this not being allowed , where it ought to be allowed , this is an error , as it is said . of assises . and for this error it seemes to him that the judgement shall be reversed , and to that he said he relied much upon the book of h. . . which takes a difference between debt and trespasse for battery , for the booke saith that a man may demand his debt , without giving occasion of any malice : but battery is an evill action , and there the book is resolved , that it shall be a principall challenge , and so he saith in trespasse , this being with force and armes , that , &c. and in . h. . in a assise , the tenant challenges the array , because he had an action of trespasse hanging against the sheriff : and there the array was affirmed because it appeares that the defendant had brought this action by covin against the sheriff , which case proves , as he said , that if there be not any covin this is a principall challenge , and h. . . accordingly , and the case . assise . where the defendant in assise challenged a juror , because he had an action of trespasse hanging against him , and was outed by award , and in . ed. . . it is said where there is an apparent favour , or apparent displeasure , there shall be principall challenge , and certainly though the law may intend , that a man may lawfully demand his right , and without malice , yet it appeares that the nature of men is perverse and froward , and few actions are begun without apparent displeasure , especially actions of trespasse , pedibus ambulando , and vexation plainly appeares , when actions are begun upon such slight occasions , and in actions of trespasse there issueth a capias for a fine , and so the defendant shall be fined and imprisoned , and sure to be deprived of his liberty is a thing distastefull . and it cannot be but that displeasure shall be between them , which endeavour to restraine one the other of their liberty ; and so he concluded that this was a principall challenge , and not being allowed this is error , and so for this cause he reversed the judgement : also it seemed to him as this case is , there is no seisin found of the paunage , for the jury have found that the earle of rutland hath put in two horses , and it seemes to him that horses cannot take seisin of paunage , which is properly meate for hoggs , and so for this reason also , insomuch that there is no seisin found of the paunage , and the jury ought to find of necessity a seisin and desseisin , it seemes to him that this is error , and so the judgement ought to be reversed , and at the same day williams justice rehearsed the case as before , and in his argument he spake . first , to grants . secondly to the challenge . thirdly to the abatement of the writ ; and it seemes to him , that none of these matters were sufficient to reverse the judgement , but yet he conceived for two other causes that the judgement shall be reversed . and first concerning markhams patent , that the jury have found very good , though that they have not said by the same letters patents , but he said that it had been more proper if they had found that the king had granted that by the same letters patents , and for that he cited the case of information of mines in the com. and the pleadings before the case , there the letters patents of the king are pleaded , and where the king grants divers things , it is there said , that the king by the same letters patents granted , and so the case of grendon against the bishop of lincolne , where the king by his letters patents , granted to a deane and chapter that they should hold an advowson to their proper use , and further granted by the same letters patents , &c. and so he said in this case that this had been more properly found ; if it had been found that the king ( per easdem litteras patentes ) granted , yet this is very good as it is , and this as he said by the intendment , for it cannot be otherwise intended , and for that he cited the book of entries in title covenant : that where a man brings a writ of covenant , and counts upon an indenture , that is , that the defendant covenanted to do such a thing , and further covenanted , and doth not say by the same indenture , yet this is very good because it cannot be otherwise intended , but when that is by the same indenture , and where things shall be taken by intendment , he cited the case of . assis . . where in assise of common , the plaintiff made him title , that is , that he was seised after the coronation of king h. this shall be intended h. . see brooke limitation . and the case of . eliz dyer , where these letters h. r. a. f. shall be intended henricus rex angliae franciae . &c. and he cited the case of . h. . . where a man pleads a release made in villa de west . the county of middlesex , and doth not say secondarily , in predicta villa : and there these justices held that good , and it shall be intended the same town , so he said in this case , this shall be intended that grant by the same letters patents ( though that ( easdem ) be left out : and to the grant to the earle of rutland , he held that good , also though that it is not expressed as concerning the herbage and paunage when that should begin , and he said that this is also for the intent , and also he said that this is not in prejudice of the king , nor in deceit of the king , nor to the double intendment , and for that good : and he put the case where the king made a lease for one and twenty years rendring rent , and doth not shew when that shall begin : that shall begin from the date of the letters patents , because it cannot be otherwise intended , so in the principall case the grant of the herbage and paunage depends upon another grant : that is , the custody of the parke which was to begin after death , surrender , or , &c. of markham , and having relation to that by this word ( vlterius ) that shall be necessarily intended to begin at the same time , and he well agreed the bookes of . h. . fol. the last , and . h. . . . h. . . . eliz. . . ed. . dyer . that there is no reversion of an office : but yet the king may grant an office after the first grant determined , and this shall be good : and so shall be in our case of the herbage and paunage , and he cited the case of h. . . . where the king was founder of an abbey , and he had granted a corody to another for life , and after he released that , and granted it to the abbot , this shal not be a good release presently , because another hath the possession for present of it , but this shall be good after the death of him which hath this granted for his life : and he cited the case of the lord chaundois . coke , where the king grants the mannor of dale in tayl , and after grants the mannor to another , this shall passe the reversion , for this is all that the king can passe : so he said in this case , this shall passe in such manner as it may passe , by which he concluded the grant to the earle of rutland good : also to the challenge , it seemed to him it is no principall challenge , and for authority he cited the case in . h. . that hath been cited of the other part , which was for him as he said , for this takes the difference between debt and battery , and . h. . a. juror was challenged because one of the parties had an action of trespasse hanging against him , and this was not any principall challenge , unlesse it be trespasse of battery , and to the booke of . assis . . where a juror was challenged , because he had trespasse against him before the assis . he said it did not appeare by the book , what trespasse that was : so it shall be intended battery , and he concluded with this difference , that if such an action be hanging which tends to the utter undoing of him , against whom it is brought , then if the defendant in such action make the array , this shall be a principal challenge , but if it be but such an action in which a man shal recover but his debt or damages or such lawfull duties ; there to say that such action is hanging between them , at the time of the array made shall be no principall challenge : and for that he cited the book of , ed. . where a tales was returned by the sheriff of middlesex , and the party challenged the jury , because he sued the sheriff for the death of his servant , and this was a principall challenge , for in such case his life was in question ; the same law in case of maintenance and champerty , for the law hath inflicted great punishment upon such offences , so these matters tend to utter subversion of his estate and life , but otherwise in actions of trespasse , and so he concluded no principall challenge : to the abatement of the writ it seemes no error . first he conceived that there is no entry , and for the reason that crooke had given before , that is , because he entred to hunt , and not to keep possession , and hath not shewed any warrant to kill the buck , and he cited the book of the . of ed. . fol. . where babington brought an assise of the house of the fleete , and hanging the assise , babington came to the jury within the house ( when they had the view ) with his councell to shew evidence for the view , and this was not any entry to abate the writ , and so the entry to hunt is an entry for another purpose then an entry to keep possession ( not being by warrant as it is not found ) and for that no entry to abate the writ : but admitting that this had been an entry to abate the writ , yet being a thing which doth not abate the writ without plea , and that cannot be pleaded as the case is , he conceived was no error , but if it had been a thing which abated the writ in facto without plea , then to give judgement upon a writ abated is error : as if the party die hanging the writ , or if a woman sole brings an assise , and takes a husband hanging the assise , or if the plaintiff in a assise be made judge of assise , as the . of assise , in all these cases the writ is abated in facto without plea : but entry shall not abate the writ without plea , and so it seemes to him no error : but he conceived that there were two other errors , for which he reversed the judgement . the first was , that this assise was de libero tenemento in clepson , and the plaint was of the keeping of the park of clepsom and of the herbage and paunage of the parke aforesaid called clepsom , and made his title for herbage and paunage of the park of clepsom , and so he conceived that there is variance between the plaint and the title and park of clepsom , and clepsom cannot be intended one , without speciall averment , and for that he conceived it to be errour . and to that he cited the case of twelve assises two . where in attaint the first originall was of the mannor of austy , and the attaint was of the mannor of auesty , and yet for that that the attaint is founded upon the record , and not upon the originall , and the record was of the mannor of auesty , this was very good , but the booke saith , that this variance between the originall and the record , was sufficient to reverse the record for errour , and the case in of ed. . where scire facias was brought of tenements in eastgrave , and the fine was of tenements in deepgrave , and for the variance the writ abated ; and in the case of coke . formedon was brought of the mannor of isfeild ; and the tenant pleads in barr a recovery of the mannor of iffeild , and this shall not be amended unlesse it appear that this is a misprision of the clark or by other averment , he cited also the case of h. . . scire facias upon garnishment in a writ of detinue of writings , the originall name john scripstead , and the scire facias was made iohn shiplow , and therefore agreed that he shall sue a new scire facias , so he said in the principal case the plaint being of herbage and paunage of clepson parke , aad the title being at clepsom parke , these shall not be intended to be the same parke without averment , and there in no averment in our case , and for that such variance is such errour , that shall reverse the judgment . the second errour for which he reversed the judgment was that which was moved by justice crook that the jury have not found any seisin of the paunage , for it seemed to him that a horse could not take seisin of paunage , and for that he defined paunage , and he sayd that linwood title-tithes saith , the paunagium est pastus porcorum , as of nuts and akornes of trees in the wood , and crompton saith , that this is , pastus porcorum , and he saith that paunagium is either used for paunage , or the paunage it self , and the statute of charta de foresta , saith ; that every freeman may drive his hoggs , into our royall wood , and shall have there paunage , but he doth not say horses or other beasts , but he conceived that if the earle of rutland had right in the park , that this had been sufficient seisin of herbage and paunage also , for hoggs will feed upon grass as well as upon akornes , and he cited the book of h. . saith that seisin to maintain an assise , ought not to be of a contrary nature to the thing of which seisin is intended to be given , but in one case only , and that is where the sheriff gives seisin of a rent by a twig or by a clod of earth , and this is in case of necessity , for the sheriff cannot take the money out of the purse of the tenant of the land , and deliver seisin of that , and for that he cited the case in ed. . where commoner comes to the land where he ought to have common , and enters into the land , and the lord of the waste or the grantor of the common outs him , he cannot have an assise of his common upon this outing , for this was not any seisin of the common : so it is in this case , the horses cannot take seisin of the paunage , and so there is no seisin or disseisin found by the jury , and then no assise , and this being after judgment no abridgment may be of the plaint , and so for these last reasons he reversed the judgment . and at another day the case was rehearsed again and argued by yelverton and fenner justices , but i did not hear their arguments , insomuch that they spake so low ; but their opinions were declared by the cheife justice , and yelverton affirmed the judgment in all . first he held that this entry shall not abate the writ . secondly admit that it is abated , yet being between verdict and judgment shall not be assigned for errour . thirdly , he held that no principall challenge . fourthly , he held both the grants good . fifthly , that clepsam and clipsam are all one , and not such variance that shall make errour . and lastly , that a horse may well take seisin of paunage , and fenner agreed in all , but he held that this was a principall challenge , and not being allowed this was error , and for this cause and another exception to the record , which was not much materiall , he reversed the judgment . and at another day flemming cheife justice rehearsed the case , and this argued ; and to the first matter he conceived . first , that it is no such entry that abates the writ . secondly , admitting that it were yet this cannot be assigned for errour . and to the first matter he took this ground , that every entry which may abate a writ ought to be in the thing demanded , and for that he sayd , if a man brings an assise of rent or common , and hanging this assise , he enters into the land , this is not any entry , which will abate the writ , and he sayd that the park , and the keeping of the park are two distinct things , and for that the entry into one , that is , the park will not abate the writ for the keeping of that , and to that which is sayd that he took a fee , that is , a shoulder of a buck , that doth not make any matter , for two reasons . first , he hath not shewed a warrant he had to kill the buck. secondly the taking of the fee is no entring into the office , but the excercising of that , but admit that this were an entry , or the thing it self , yet he sayd every entry into the thing shall not abate the writ , and to that he sayd , that if this entry of the earl of rutland to hunt was no such entry that shall abate the writ , for his office was not to hunt , and for that his entry being to another purpose , it shall not be sayd an entry to abate the writ ; and for that he cited a case , which hath been cited , as he sayd , by justice yelverton , that if a man have common in the land of j. s. between the annunciation of our lady , and michaelmas , and the commoner brought an assise of his common , and at christmas ▪ put in his beasts and this shall not be any entry to abate his writ , for it cannot be intended for the same common , which case is agreed to be good law , and he cited the case put by brooke in assise of freshforce before remembred com. . where hanging a formedon , the tenant pleads in abatement of the writ , that the demandant hath entred after the last continuance , and upon the evidence it appears , that many were cutting wood upon the land , and the demandant comes into the land to them , and warnes them upon the perill that might ensue to them , that they should do no more then they could do by law , and this was found no entry : also the case of . assise before cited by justice crooke , and he sayd that the statute of charta de foresta , chapter . willeth , that every arch-bishop . bishop , earl , or baron , comming to the king by his command , and passing by his forrest , &c. was licensed to take one beast or two by the sight of the keeper ; &c. put case then , that the king had sent for the earl of rutland , and he had passed through this park , and had killed a buck , had this beene an entry to abate this writ , quasi diceret non , for this was entry to another purpose , so he sayd in the principall case the entry to hunt , and so no entry to abate the writ , but admitting that this had been an entry , which would abate the writ , then let us see if this entry hath so abated the writ , being mesne between the verdict and the judgment , it cannot be assigned for errour , and to that he agreed the diversity before taken by crooke and williams , where the writ is abated by plea and without plea , and he cited a judgment in the kings bench , between jackson and parker eliz. where in ejectione firme the plaintiff entred mesne between verdict and judgment , and this was assigned for errour in the exchequer chamber , and the judgment notwithstanding affirmed , and he sayd that if memorandum had been made of it , or if a jury had found it , and it had been prayed that that might be recorded , yet this had not been materiall , and that that be not assigned for errour . and to the matter moved by my brother williams , that there should be a variance between the plaint and the title , he conceived that there is no such variance , that shall make the judgment errronious , and to that he examined the matter . first that the assise was of a free-hold in clepsom , and his title is made of the parke of clipson , that that cannot be otherwise intended , but that of necessity it ought to be the same park . for first there is but one park by all the record . secondly , the plaint saith , de parco predicto , which hath reference to clepsom park , and there is but one park put in view by all the record . fourthly , it shall be so taken according to the common speaking . fiftly , when he hath made his plaint of the custody of the park of clepsom , and of the herbage and paunage of the park aforesaid called clepsom , these words ( called clepsom ) are but idle and trifles , and that which is but surplusage shall not annoy . also he said that j. and e. are letters which do not much differ in pronunciation , and they are all one as i and he shall be pronounced as hi ; and he cited the book of h. . . where in debt , variance was taken between the writ and the obligation , that is , quatuordecem pro quatuordecim , and this variance was not materiall , but that the writ was awarded good , and so he conceived that in this case the variance of clepsom and clipsom shall not be such a materiall variance , that shall make the judgment erronious , and to the title . first to markhams grant , that is , where the jury have found , quod ulterius concessit , &c. and doth not say , per easdem , he held that good without scruple , and this for the necessary relation , that this had to any thing before granted , for he sayd that this should be a strange and marvelous patent which begun in such a manner , that is , et ulterius rex concedit , &c. and there was not any thing granted before . and for that he cited the case of ed. . . where debt was brought upon an indenture against the abbot of westminster , and the indenture was between the abbot of the monastry of the blessed mary of westminster , and rehearsed divers covenants , for performance of which covenants , the abbot of westminster bound himself in twenty pound , and doth not say that the aforesayd abbot , and yet good , for it shall be intended the same abbot , for he is party to the deed , and the case of h. . . where in assise of common the plaintiff makes his plaint of common appurtenant to his free-hold in d. and shews for title , that he was seised of a messuage , and of a carve of land in d. to which the common is appurtenant , and that he and his ancestors , and all those whose estates , &c. have used common of pasture with ten beasts , and exception taken to the title , because he saith that he was seised , and not saith , that he is , and yet good by this word ( fuit ) for that shall be intended that he continues seised , so he sayd that things which are necessarily to be intended , though they be not so particularly expressed , yet shall be good by implication , and so he concluded that this is no error , for which the judgment shall be reversed . and to the challenge , he conceived that this is not any principall challenge , and to that he put this difference , that if a man brings an assise of certain land , and hath an action of trespass hanging against the sheriff for entring into the same land , there shall be a principall challenge to the array , but if it be for entry into other land not in demand , otherwise it is , and what is principall challenge , and what not , he cyted the bookes of ed. . . ed. . . ed. . . h. . . . ed. . . and to the point in question , he cyted the bookes before remembred by crooke and williams and no others , and for that i omit to recite them , and he agreed also that in actions which concern life , honesty , mayme , battery , to say that he hath such action hanging against the sheriff , shall be a principall challenge , but trespass for entring into land not , for in trespass there is no land to be recovered , also no damages but to the value of the trespass . and in debt a man shall recover more then in trespasse : and yet it is agreed that this is no principall challenge to say , that he hath an action of debt hanging against the sheriff , as the book of h. . is , which hath been remembred , and for this i conceive it no principall challenge : and to the seisin of the paunages , if a horse may take seisin of that , it seemes that yea , for i conceive that the taking of seisin doth not consist in the eating or not eating of that , of which the seisin is to be taken , and for that he cited , that if a man grant to me the herbage and paunage of his parke , and i come into the parke and take the grasse and herbs into my hands , or if i gather akornes , this is sufficient seisin for me to have assise , though that i do not eate the grasse , nor the akornes , and for that , let us put the case that a man hath herbage granted to him , and he puts in his beasts , and before that they eate the grasse , they are driven out , none will deny , but that , that shall be good seisin , for so is the book of the . assise . where a man hath common granted to him , and he takes the beasts of a stranger : and puts them in , and them forthwith drive out , that shall be a good seisin of the common to have assise , so that he said , that the eating is not to purpose , also he said horses will eate akornes , as well as cowes : and he saith that in the country where he inhabits being a wood-land country , they will not suffer the beasts to go into the woods at a certaine time of the yeare , and this is when crabs are ripe , for then their beasts will eate crabs , and set their teethes an edge , and then not being able to chew akornes do swallow them whole , and then those ackornes being swallowed whole , will grow in the mawe of the beast , and so kill them : and he saith that though that horses be not so proper beasts , to take seisin of paunage as porkes are , yet being put in for the same purpose , if they are disturbed that shall be seisin and disseisin , and it seemes to him that when things are granted to one , that it shall not be strange to say , that seisin of one shall be seisin of both , and for that if a man grants all his arrable land , all his meadow , and all his wood , livery and seisin in one suffices for all , but i conceive that this is in respect of the soyle which passeth , and so are all of one self same nature , and so he conceives that this is sufficient seisin and disseisin found to have assise . and lastly to the title of the earle of rutland , he said that this was good , and to the grants of the king he said two things are necessary in all grants of the king , that is , a recitall , and a certainty , and when a recitall shall be necessary and when not , and he said that in all cases , when a common person makes a lease for years or for life , and the reversion is conveied to the king , if the king will make estate to another , he shall not recite this lease , for this not being of record , the king cannot take notice of it , and so he shall not recite : but in all cases when the king makes a lease for life , or for years , and after will make a grant to another , he ought to recite the first estate , because that is of record : and justice yelverton as i heard of those which were next unto him , put this case : that if the king grants a lease for yeares rendring rent , and after the king reciting the lease grants that to another for years , or grants the reversion to another , and doth not recite the rent which was reserved upon the first lease , that this second grant shall be void for the not recitall : and the cheife justice cited one phillpotts case to be adjudged in the . of eliz. that where the king made a lease for one and twenty yeares , and after reciting the said lease , grants the reversion to another , and before that the second letters patents were sealed , the first lessee surrendred : and said that the second grant was adjudged void , for the king intended to passe a reversion , and now he shall have a possession , and all that which is said to be in case of land : now let us see how it shall be in case of office , and for that if a common person hath ●n office in fee , and grants that for life , and after grants the fee simple to the king , and the king will grant that to another , there he ought to recite the common persons grant , as well as if it had been his one grant , for there is not properly a reversion of an office , as the book cited by my brother williams sayd . secondly if the office be recited in esse , and be not in esse , the grant is void , as blanyes case is in the lord dyer eliz. . . and this sufficeth for recitalls : then for certainty of the kings grant , it is said in the . r. . it is said that the grants of the king ought to be made in certaine , and for that where the king there grants to sir john spencer that he shall not be sheriff , this was void , for the incertainty of the place : but if the grant had been of such a county , or such a county , the grant should be good : also there ought to be certainty of estates , as it is in . h. . where the king gives lands to one and his heires males , this is void for uncertainty of the estate , then it is so averred in our case if there be not sufficient recitall and certainty , and to the recitall that is good without question , for she recites that she hath granted that to markham for if● , and markham is yet alive , and so the recitall good : then for the certainty he said , that the rule is , that if the certainty be declared by expresse words , or if the king may reduce that to a certainty , the grant of the king shall not be defeated , and for that he cited the case of information of mines comment . but if the king grant to me all mines in the land of j. s. there i shall have all mines royall , for the law saith , the king cannot have other mynes in the soil of a subject but mines royall , and so there the law supplies the grant , so that they be mines royall , though not expressed in the grant in certaine , so he said in the principall case , that the queen hath expresly recited , that she hath granted the herbage and paunage for life to markham , and that markham was yet alive , and after grants that to the earle of rutland , and doth not say when that shall begin ; the law saith that shall begin after the death of markham , for before that it cannot begin : but if the queen had exprest in the letters patents , that this shall begin forthwith , then this had been void , as the lord gaudy said in altonwoods case , coke fol. . and so he concluded the title of the earle of rutland good : so he affirmed the judgement in all : but williams was very peremtory for the conceit of paunage that it was not good seisin : but after crooke justice recanted his opinion of that , and insomuch that there were three which concluded for the reversing of the judgement : and yet for every point there were three against two : it was doubted if this judgement should be reversed or not : and they said that they would advise with the rest of the judges , and after that it was moved againe by serjeant nicholls in the next trinity tearme , and yelverton and the cheife justices would have the judgement affirmed , but williams , fenner , and crooke , to be reversed , and note well this president , where judgement was reversed , and yet for every point there were three contra two , or foure contra one , see the first judgement in the common bench michaelmasse . jacobi afterwards . termino pasche . jacobi , . in the kings bench. trinity colledge case . the case was this ; king henry the eight incorporated the schollers of trinity colledge in cambridge by the name of masters , fellowes , and schollers : collegij sanctae et individuae trinitatis , in the town and university of cambridge , and in the . ed. . they made a lease by the name of master , and fellowes of trinity colledge in cambridge , leaving out the university : and if this lease were good or not was the question ; and yelverton argued that this was not a good lease , and that for the misnaming of the corporation : and to that he said , to every corporation , two things were incident : that is , name and place : and if any of those fayl and be not certainly recited in a lease , the lease shall not be good : and he conceived that this corporation is founded upon two places , and that one of them : that is , the university is left out , and for that cause the lease is nothing worth , for if a corporation hath two names , one of them cannot be omitted , as it is in the first of mary dyer , . and . mary . and . . eliz. dyer . . h. . . and . no more then when it consists of two places one of them may be left out : and for that , if they had been incorporated by the name of master and fellowes of trinity colledge in norfolke and suffolke in a lease , they could not leave out norfolke or suffolke , but both the places ought to be incerted : and by him in the principall case , if the lease had been made by the name of the master and fellowes of trinity colledge in the town , and leave out the university of cambridge , without question , this shall be void , so here this being impliedly omitted shall be as strong , as if it had been by expresse words excluded , so in the making of every corporation , the intent of the founder is to be considered , and for that it seemes the intent of the king in placing that in both places , was first to erect a colledge , and that to grace the town , and then he hath placed them in the university , and this was for the instruction in good arts and learning , and so for these benefits they have of both these places , nor one nor the other may be left out : and if the king had been incorporated by the name of master and fellowes of trinity colledge in cambridge , and in the market place of cambridge : there though that the market place was parcell of the town of cambridge , yet it seemes to him that this cannot be left out , for peradventure the founder hath a speciall reason to place that there , that is , to have all things necessary for them more neer unto them : also where any stranger demands any possession of them in precipe quod reddat , or such like , he ought to ensue them certainly and precisely : then a fortiore where they depart with their possessions by their own act , there they shall not be unknowing of their one names : and walter of the inner temple argued to the contrary , and he conceived that the lease is good , and first he argued the ground which hath been taken of the other part , that is , that every corporation ought to be in a certain place , and he conceived that there is a certaine place in this place , that is , the town of cambridge : and to that , that is said that this corporation is founded upon two places , he denied that all together , for no more then one materiall body , may be but in one place simul and semel , no more may it be in a body corporate , which hath allwaies his resemblance to a body naturall , and for that he denied the case , which hath been put of the other part , of norfolk and suffolk : and he cyted the opinion of the lord popham in buttons case , in which the lord north was interested , that a corporation cannot be limited to a county , as probos homines of such a county , or trinity colledge in such a county , but it ought to be restrained to some certaine place , or one county , or a town : but admit that the corporation may be founded upon two places , yet he faith that a university is not locall , but personall : and to this purpose he cyted two records one , in h. . which was this : king h. . intending to keep a parliament at oxford , and knowing that the place was not sufficient to contain all those , which should be there assembled , and the schollers together , sent his writ which was directed to the chancellor and university of oxford , commanding them that they should remove the university to such a place , till the parliament should be ended : and after he sent his writ to them againe , which was directed to the chancellor and university , by which he wild that they should returne againe , the parliament being ended , by which writ he conceived that it appeares that the university was not locall : and this for two reasons . first insomuch that this writ was directed to the chancellor and university , and every writ is directed to a person and not to a place . secondly the writ that he should move and remove the university , which is a thing impossible to do if it should be a place : the other record was . ed. . and this declares , that there was contention between the schollers of cambridge and the townesmen there , and the schollers went to northampton , and there they made a petition to the king , that they might erect a university , and the king sent his writ to the maior , commanding him that he would not suffer the schollers to remaine there , and that he would there erect a university , which proves that a university may be erected at the kings pleasure , and so cannot a place , then admitting that a corporation may consist upon a place , yet the university not being a place , that shall not be any prejudice to omit it : and he cited a case which was adjudged as he said , in the . of eliz. which was thus ; the deane and canons of winsor made a lease for years by the name of deane and canons of new winsor : and this was adjudged no variance , and the case of . ed. . . of the abbot of saint maries in york which see there , and he said the lord norths case was thus : that christ church in oxford was incorporate by the name of deane and canons of christ church in oxford : and they made a feoffment by the name of the deane and canons of christ church in the university of oxford , and adjudged a good feoffment : and he said that in the argument of this case it was said by gaudy , that if a corporation were made of dale , and after dale is made into a city , they may make a lease by the name of a city of dale , and the lord popham ( as he said ) put these cases : that is , that if a corporation be founded of oxford : and that they made a lease by the name of , &c. in the precincts of oxford , this shall be a good lease , yet a thing may be within the precincts of another place , and not in the place , and in the . eliz. was the case of one jermin and wylles , that if a corporation be made , by the name of deane and chapter of saint maries in exceter is good : but they agreed in this case as he said , that if it appeare that they cannot be intended allone , otherwise it should be , and he conceived in the principall case , that it is not necessarily that it should be intended the same place , and for that he conceived in all those cases that the lease shall be good , and he said that there were neer two hundred leases upon the same title , for which , &c. and after this it was argued in michaelmasse tearme . . jacobi by the justices : and the opinion of crook and williams justices was , that the lease was good : but fenner and yelverton to the contrary , and flemming cheif justice argued that the lease was not good ; but he said this should not be absolutely his opinion , but moved a composition betwixt the parties : but insomuch that the matter was not compounded , in the same michaelmasse tearme , judgement was praied : and williams justice brought into the court a decree out of the court of wards concerning the case which is put in . eliz. dyer and . coke porters case : and upon the decree appeares , that an information being exhibited there against the master and fellows of trinity colledge in cambridge concerning certain land they made title to , by a devise made to them , by the name of masters , fellows and schollers , of trinity colledge in cambridge , and this devise was made , four and five of phil. and mary , and the decree recyted , that upon this were two great doubts and questions conceived . first , if this devise were good , and also by the statute of . and . phil. and mary , which inabled to devise to spirituall corporations . and the second point was , that where they were incorporated by the name of master , fellows and schollars de sancta and individua trinitate , in the university and town of cambridge , if this devise made to them by the name of master , fellowes , and schollers of trinity colledge in cambridge was good , and the decree rehearsed , that the opinion of all the justices in england was . first , that it was a good devise within the statute of one and two phillip and mary , as it is reported in the booke before cited . secondly , that this was not such a mis-naming of the corporation which made the devise voyd , and williams justice produced this record , as he sayd to fortify his opinion : and he conceived no difference between a grant and a devise , nor no difference when an estate or conveyance made unto them , and conveiance made by them , and for that he cited the case in the h. . in dyer , where if a man devise land to the abbey of saint peters , where the foundation is saint paul , this is a voyd devise , and so in a grant . and crooke justice , to the same intent . yelverton justice to that decree shewed by my brother williams , i conceive a great difference . first a will and a grant , for in case of a will , it sufficeth if they be described by a name , by which the intent of the devisor may be sufficiently known , and a man is intended to be inops consilij at the time of the devise made , and for that that he hath not any to instruct him o● the precise name of the corporation for which , &c. and fenner justice to the same intent , and if a man devise to one , and his assignes , as it is a fee-simple in case of a devise , so it is not in grant , and so devise to one and his children , is an estate tayl in case of devise , but not in a grant : flemming cheife justice to the same intent , and to the decree he sayd , that this is as good law , as ever he heard in his life , but yet he conceived also , that there is a great difference between a grant and a devise , as if a man devise to a monke the remainder over , this is a good remainder , so devise to one the remainder over , and the particular tenant refuse , this is good in a devise , contrary in grant , and to the case which is put by my brother williams out of the h. . dyer , there is a great difference , where there is not any such person at all to take , there the devise shall be void , as where the devise to the abbot of saint peter , where the foundation is of saint paul , and where it is a person certain , but all the name is not so precisely recyted , and to that which is sayd by my brother williams , that no difference between conveiance made to them and by them , i agree to him with this difference , that is , if conveyance be made to them , of what by presumption in law they are knowing , and are parties as a fine levied to them , and such like , but of a devise it is not presumed , that they have knowledge of that till the death of the devisor , and he conceived that the lease is voyd , and this decree shewed , hath not changed his opinion , but he moved the parties again to an agreement , and would not as yet give judgment . hitcham the queens attorney , moved the court for a prohibition , and the case was this , two merchants covenanted by deed with their factor to allow him ten pound a moneth for his wages , and one merchant sealed the deed in england and the other sealed that upon the sea , and the factor came and sued the merchants in the admiralty for his wages , and by the court insomuch that one of them sealed it upon the land , this is not any thing done upon the deepe sea , and for that prohibition was granted to him . upon a motion made by wincolt of the middle temple to dissolve a prohibition granted to the spirituall court , upon a libel for tithes , there the court took this rule , that when a consultation is lawfully granted , there a new prohibition shall not be granted upon the same l●bell , and yet they qualified that with this difference , that is , when a consultation is granted upon any fault of the prohibition in form by the m●sprision of the clark , or by mis-pleading of any statute in that , or such like , there a new prohibition may be granted upon the same libell , but if consultation be granted upon the right of the thing in question , there a new prohibition shall not be granted upon the same libell , see the statute of ed. . pasch . . jacobi . in the kings bench. bromehead and spencer plaintiffs , rogers defendant , where an action of debt was brought by the plaintiffs against the defendant as administrator during the minority of one j. s. and the plaintiffs shew in their count , that the said j. s. at the time of the writ brought , was , and yet is within age of one and twenty years , and verdict passeth against the defendant , and crewe moved in arrest of judgment , that the declaration was insufficient , for they have declared that the executor was within the age of one and twenty years , and the administration during the nonage shall cease when the infant comes to the age of seventeen years , so that he may be of the age of . . . or . years , and yet the administration ceaseth , and so of action against administrator , and so was the opinion of all the justices , and the judgment was stayed upon that , according to the resolution of piggotts case . coke . a. plomer against hockhead , the plaintiff declares in ejectione firme , upon a lease made to him by three husbands and their wives , and that the defendant ejected him , and at the issue upon not guilty , and in evidence to prove this lease , and the delivery of that , was shewed a letter of attorney made by the husbands and their wives , and the councel of the defendant takes exception to the declaration , for they have declared upon a lease by three husbands , and their wives , with a letter of attourney to make delivery , and a married wife cannot make a letter of attorney : and so this is not a lease of the wives , and so the plaintiff had declared upon no lease : and the opinion of all the court was , that a married wife could not make a letter of attorney . and williams justice compared this to the case of an infant , as if an infant makes a feoffment or a lease , and delivers that with his hand , this is not , but voidable : but if it be executed by letter of attorney , that is a disseisin to him , but by flimming and williams , if the plaintiffs had declared upon a lease made by the husbands only ; this had been very good . thomas malin plaintiff in replevin against thomas tully , the case was ; the queen mary was seised of a park called eestwood park in her demesne as of fee as in right of her crown , and so being seised by her letters patent's , let the said park to two for their lives , and after died : and the queen elizabeth by her letters patents recyting the said lease for lives , and that the said lessees were alive , granted the said park to humphrey lord stafford and his wife , and to the heires of the said lord stafford of the body of the said wife lawfully begotten : and by the said patent the same queen by these words , ac de ampliori et vberiori gracia , nostris volumus et declaramus , quod si predictus dominus stafford , solvat seu solvi faciat prefacto dominae reginae s. ad tal●m diem , tunc concedimus , quod predictus dominus stafford habebit revertionem predictam sibi et heredibus suis : and the lord stafford paid the said sum of twenty shillings according to the said letters patents , and if he shall have fee-simple or not was the question . and it was objected that he shall not have it , for the words of the patent are ; that if the lord stafford paies the money , tunc concedimus , the which words seeme that the grant shall take effect , in futuro , and it was not a present grant , but when the money shall be paid then shee granted , but it seemes to the justice , that it was a good grant immediatly to take effect upon the payment of the money , and the condition was precedent , till that be performed the reversion remaines in the queen eliz. and the queen might grant by one selfe same patent as by diverse : see . assise . . ed. . . ed. . feoffments , and that the reversion shall not extinguish the estate tayl , but they may well be together , but otherwise it is of an estate for yeares or for life . warburton justice , that the king is specially favoured in the law , and for that he shall not be inforced to attend in case , as other persons ought to make attendance : and for that in case where a common person may make a good grant , the king also may make a good grant , and in the case at the barr , if the grant had been made by a common person , it had been good without question : but the first objection that hath been made was , that where a man hath made a lease for life or for years , upon condition to have fee , there the particuler estate shall be drowned upon the increasiing of the estate , but the statute of westminster . preserves the estate tayl that it shall not be drowned , and that the fee in this case doth not vest till the condition be performed , for if the lessee for years or life , surrender before the performance of the condition , the fee doth never increase , as it is . h. . . and the lord chandois case , ▪ coke : but the estate tayl remaines after the condition performed , and then hath the fee dependant upon the estate tayl , and that there is a necessity that there shall be an office , as it was in nicholls case in the com because of the right and that after the condition performed then the fee shall vest , ab initio , and this corporates together partly by the letters patents , and partly by the performance of the condition , and so it is in butler and bakers case that it is not a grant in futuro , but one immediate grant to take effect in futuro , see . h. . for the execution of chantrey and grendons case in the com. and . h. . if the king grant land to j. s. for life , the remainder to the right heires of j. r. which is in life , the remainder is good , as well as in case of a common person , and so he seemed that judgement shall be given for the plaintiff . walmesley justice agreed , that it shall be remainder and not reversion , as if lands begin to the husband and the wife and to the heires of the body of the husband , the husband dies , this is a remainder , in the heires males and not a reversion , for it cannot grow higher , and it was not in the king as one distinct estate , before the grant , and formedon in remainder lieth for it , and though it be misrecited yet it shall be good , and ayded by the statute of misrecitalls , and grant of a thousand is suffered to convey the reversion of a thousand by the common law ; and if the recitall were that it was a reversion depending upon the estate tayl , it was good without question , and the king may grant five hundred reversions if he will , and that the last ( damus ) is ex certa scientia et mêre motu nostris , damus et concedimus , that if the patentee pay twenty shillings , tunc sciatis , quod nos de ampliori gracia ea certa scientia et mero motu , nostris concedimus , &c. and that the word volumus will amount to a covenant or a release , as . h. . the king by his patent by these words ( nolent ) that he shall be impleaded , and this amounts to a release , and so words which intends expresly words of covenant may be pleaded as a grant in case of the king , as it is ed. , so is a common person license another to occupy his land , this amounts to a lease of land if the time be expressed , so if a man grants to another that he shall have and injoy his land to him and his heires , that by that fee passeth : and if the king grant reversion to begin at michaelmasse , the grant is void , for that it is to begin totally at michaelmasse , and doth not looke back to any precedent thing : but if it relate to any precedent act , then that shall be good by relation , and shall passe ab initio ; see com. walsinghams case . b. that in such case the performance of the condition divests the estate out of the king , and there is no difference in this case betwixt the king and a common person , and agreed in the case of littleton : where a man makes a lease for yeares upon condition to have fee , that the fee shall not passe till the condition be performed , and with this agrees . r. . but if a man makes a charter of feoffment , upon condition , that if the feoffee injoy the land peaceably for fifteen years , that the feoffment shall be void : in this case the fee-simple determineth by the performance of the condition , and in this case the fee passeth , ab initio , by the livery as in . assise . assise . . assise , assise . and he agreed that the words habeat et teneat the reversion passes , and this is good fee-simple , and this refers to the first damus et concedimus , and so concluded that he seemed that judgement shall be given for the plaintiff . coke cheife justice accordingly , and he conceived that there are two questions upon the substance of the grant. and to the first objection , that hath been made , that is , that reversion was granted , and increase of an estate cannot be of a reversion , and in all these cases which have been put they are of an estate in possession , and so is the case of littleton also , and he agreed that it shall not be good , if it be not good , ab initio , that though there be not other words then reversionem predictam : that it shall be good . and to the second point upon the former : he conceived that the grant is but a grant , and that the condition is but precedent limitation , when the estate of fee-simple shall begin , and so it is said by montague , in colthurst and brinskins case in the com. and further he saith that there are four things necessary for increasing an estate . first , that it ought to be an estate , upon which the increasing estate may increase . secondly , the particular estate ought to continue , for otherwise it is grant of a reversion in futuro . thirdly , that the estate which is to increase ought to vest by the performance of the condition , for if there be disturbance that it cannot then vest , then it can never vest . foutthly , that both the estates as well the particular estate as the estate which is to increase ought to have their beginning by one self same deed , or by diverse deeds delivered at one self same time . and to the first and to prove that he cyted ed. . attaint . lessee for yeares upon condition to have fee , granes his estate , the fee doth not increase upon the performance of the condition , for then it shall passe as a reversion , and so the particular tenant surrenders his estate , as it is sayd . h. . for if the privity be destroyed the fee will never increase , but there is no such ●ycity , but that if the substance of the estate remains , though it doth not remain in such form , as it was at the first reversion , the estate may well increase , as if lands be given to the husband and wife and to the heirs of the husband , upon the body of the wife to be begotten , the wife dies , and the husband is tenant after possibility of issue extinct , yet he may well perform the condition , for the estate remaines in substance , and with this agrees , h. . ayd ; and so it is if a lease be made to two for years upon condition to have fee , one dies , the other may perform the condition , and shall have fee-simple , as it is agreed by . assise . the reason is that the privity remaines and the estate also in substance . thirdly , as to that also , it seems that it ought to vest upon the performance of the condition , which is the time limited for the beginning of the estate , and if it do not vest then , it shall never vest , and if it do not vest without office in this case , it shal never vest at all , but it is for the honour of the king , that his grant shall have his effect , and ed. . . isabell goodcheaps case , she devised her lands to her executors to be sold , and dyes without heir the king hath that by escheat , yet the executors may sell it , and for that divest the estate out of the king , and so was the lord l●vells case , and the reason is for the necessity , for the prerogative of the king shall do no wrong , and there need no continuance of the estate of the part of the lessor , but of the part of the lessee , and for that if the feoffor make a feoffment , or grant his estate , this shall not make prejudice or alteration of the estate , and for that if the king refuse to receive the money ▪ yet if it be tendered the fee-simple shall vest in the patentee , and the simple upon that shall shall increase , see ed. . feoffments and deeds b. . quid iuris clamat be . and to the fourth it seems also , that both the estates ought to be created and granted by one self same deed , or by divers delivered at one time , quia quae in continenti fiunt pro uno habeantur & reputentur , as if a man makes a lease for years upon condition to have in tayl , upon condition to have in fee , this second condition is void , for it ought to be all one crant , and cannot be intire , upon the privity of the first grant , and it is not material though that the first estate be drowned upon the performance of the condition , as if the king makes a lease for life , the remainder in tayl upon condition , that if the tenant for life pay twenty shillings , that he shall have fee , this shall be a good grant , and the fee well vested by the performance of the condition , though that the particular estate for life shall not be drowned . and to the second point , that is , that the grant of the king shall not be good , for that that it is by the words , reversion aforesaid , he agreed that if the king makes a grant to one intent , that shall not enure to another intent : but this shall enure to the intent for which it is made , vt res magis vale et quam periat , and it is for the dishonor of the king , to make an unconscionable grant. and to the objection which is made , that the king is not understanding of law , to that he answered , that the king is ( caput legis ) and for that shall not be intended to be ignorant of it , and for that if a grant may have two intendments , one to make the grant good , the other to make the grant voyd , it shall be intended , and expounded in the better sense , that is , to make the grant good , and not to make the grant voyd , for this was iniquae expositio , and also he sayd that the grant shall be good for the first word ( concedo ) though it had not been subsequent also , as if a man grant a rent charge , and if it be behinde , that the grantee may distrain for the first grant , and the grant is not of a reversion in futuro , but grant that if the condition be performed that then the fee doth pass in futuro , and it seemed to him , that it was a good devise to prevent that the estate tayl should not be discontinued by fine nor otherwise , untill the condition were performed , and so of recovery also ; for if the king grant an estate tayl , and after grants the reversion in tayl , this second intayl is within the intent of the statute , and when the issue of the first tenant in tayl shall not be barred , the estate of the tenant in tayl in remainder shall not be barred , see the lord barkleys case in the com. fol and ed. . and as to the pleading he sayd , that when the issue is offered , which depends upon matter in law , there is no necessity to take travers upon the matter in law , for it doth not belong to lay men to decide the matter in law , and for that he concludes , that the grant in substance is good , and in form exquesite , and that the issue in tayl in reversion shall not be barred , for quod non in principio valet , non valebit in accessario , and that judgment ought to be for the plaintiff , which was done accordingly . in ejectione firme against gallop , after verdict and judgment for the plaintiff a writ of habere facias possessionem was awarded and executed , and returned and fyled , and after the same defendant re-entred and outed the plaintiff , and attachment was awarded , and it seems that if the writ had not been returned , that then a new writ shall be awarded , and the attachment was awarded upon affidavit . in action upon the case against trotman , the words were , thou sayest thou art an attorney , but i think thou art no attorney , but an attorneys clark in some office , but if thou be an attorney i will have thee pickt over the barr the next tearme , and thy eares nailed to the pillory , and it seems that these words are not actionable . in waging of law of summons in dower , in petit cape , there ought to be two summons only , and if it be grand cape , then there ought to be two summoners and two veiwers , and summons upon the land is sufficient to give notice of the demandant , of the thing demanded , and the day in court. that in waging law , the lord coke sayd , that the defendant himself ought to swear , de fidelitate , and elev●n others , which are named in the statute of magna charta , chapter , testes fideles ought to swear de credulitate . if tenant for life be the remainder in tayl to another ; the remainder in fee to the tenant for life , and the tenant for life releases to the tenant in tayl , the release is good to passe the remainder in fee to the tenant in tayl , for to this purpose the tenant in tayl hath sufficient possession , upon which the release may enure , but it shall not be good to pass the estate for life , and h. . and h. . if tenant in tayl in remainder , disseise tenant for life , he doth not gain fee-simple by fulthorp , but if there be grand-father , father , and sonn , and the father makes a feoffment the grand-father dies , the father dies , the sonn is barred , so if the sonn had levied a fine being tenant in tayl , and h. . . a. ed. . discontinuance . pasch . jacobi , . in the common bench. warbrooke and griffin . between warbrooke and griffin , a guest brought a horse into an inne in london to be kept , the which stayed there so long , till he had eaten out his worth , and then the inn-keeper caused the said horse to be prysed , and then sold him according to the custome of london , and it seems well he might do it , and that the sale was lawfull , for the inne-keeper , as to the person of his guest ought to receive him , and he is compellable to do it , as it is ed. . . and ed. . and for his goods he ought to keep them safe , and of the other part the guest ought to pay the inne-keeper , as well for the meat of his horse as for his own , as it is h. . and it should be inconvenient that he should be put to his action for , &c. and for preventing this mischeife , the inne-keeper may detaine the horse of his guest , till he be satisfied , and it seems to coke cheife justice , that an inne-keeper is not chargeable with the goods of any , which is not lodged in the inne , and the goods must be lost by default of the inne-keeper , and that the inne-keeper is not compellable to receive the horse of any , if the master be not lodged , and if a neighbour of the inne-keeper come to the inne-keeper he shall not answer for the goods , for he is not lodged , but as a tipler , and so if an inn-keeper invite any to his house ad praudendum aut caenandum , the inne-keeper shall not be charged , as it h. . for it was agreed that the guest ought to averr that he was lodged in the inne . and foster justice sayd , that it was adjudged in the case of one perin of the black swan in holborne , that by the custome of london , an inne-keeper may sell a horse which remaines with him to be kept , and hath eaten more then he is worth , and so it was sayd by foster , that where a haberdasher of london came to an inne , and there sold divers hats , and after went to a faire , and left divers other hats in the inne , the which in his absence were stollen , and the inne-keeper should not answer for them , for that that the haberdasher was not lodged in the inne at that time , and this was the case of one coley in the . of eliz. but sir edwin sands lodged in an inne and there left a trunck , and went to meet the kiug , the trunck remaining in the inne , in his absence it was stollen , and the inne-keeper was charged , quere the difference , if the owner desire that his horse should go to grass , the inn-keeper shall not answer , but if an inn-keeper receive the horse , and of his own head puts the horse to grass , and he is stoln , there the inn keeper shall be charged , and though the inne-keeper deliver the key of the chamber to the guest , yet the inne-keeper shall answer for the goods which are stollen , for it is an implyed promise of every part , that is , of the part of the inne-keeper , that he will preserve the goods of his guest , and of the part of the guest , that he will pay all duties and charges , which he caused in the house , and that the inne-keeper may retain ( without custome , by the common law , the horse of the guest as a pledge till he be satisfied of all dues , and so a tayler , and goods taken in withernam , but the inne-keeper cannot work the horse of his guest in such a case , nor sell his goods though that they be bona peritura . trinity . jacobi , . in the common bench. colledge of phisitians case . thomas bonham brought an action of false imprisonment against doctor alkins and divers other doctors of phisicke : the defendants justified , that king h. . anno decimo of his reigne , founded a colledge of phisitians , and pleaded the letters patents of their corporation . : and that they have authority by that to chose a president , &c. as by the letters patents , &c. and then pleads the statute of h. . chapt . . and that the said doctor alkins was chosen president , according to the said act and letters patents , and where by the said act and letters patents it is provided , that none shall practise in the city of london or the suburbs of that , or within seven miles of the said city , or exercise the faculty of phisicke , if he be not to that admitted by the letters of the president and colledge , sealed with their common seale , under the penalty of a hundred shillings , for every month ( that he not being admitted ) shall exercise the said faculty , further we wiland grant for us and our successors , that by the president and colledge of the society for the time being , and for their successors for ever , that they may chose foure every yeare , that shall have the overseeing , and searching , correcting , and governing , of all in the said city being phisitians , using the faculty of medecines in the said city , and other phisitians abroad whatsoever using the falculty of phisicking by any meanes frequenting and using , within the city or suburbs thereof , or within seven miles in compasse of the said city , and of punishing them for the said offences , in not well executing , making , and using that : and that the punishment of those phisitians using the said faculty , so in the premisses offending , by fines , amercements , imprisonments of their bodies , and by other reasonable and fitting waies shall be executed : note the preamble of these letters patents is , quod cum egregij officij nostri munus arbitremur , ditionis nostrae , hominum selicitati omni ratione consulere : id autem vel inprimis fore , si improborum conaminibus tempestave occurramus , apprime necessarium fore duximus , improborum quoqur hominum , qui medicinam magis avaritiae snae causa , quam ullius bonae conscientiae fiducia profitabuntur undi rudi et credulae plebi plurima incommoda oriuntur , audaciam compescere . and that the plaintiff practised in london , without admission of the colledge , and being summoned to appeare at the colledge , and examined if he would give satisfaction to the colledge according to the said letters patents and statute , he answered that he had received his decree to be doctor of phi●ck by the university of cambridge , and was allowed by the university to practise , and confest that he had practised within the said city , and as he conceived , it was lawfull for him to practise there , that upon that the said president and commonalty fined him to a hundred shillings , and for not paying of that and his other contempt , committed him to prison , to which the plaintiff replied as aforesaid , and upon this demurrer was joyned : and harris for the defendant , saith , that this hath been at another time adjudged in the kings bench , where the said colledge imposed a fine of five pound upon a doctor of phisick which practised in london without their admission , and for the non payment of that , brought an action of debt , and adjudged that it lay well , and that the statute of . h. . extends as well to graduats , as to others , for it is generall , and gradiots are not excepted in the statute , nor in the letters patents , and all the mischeifes , intended to be redressed by this , are not expressed in that , and the statute shall not be intended to punish imposters only , but all other which practise without examination and admittance , for two things are necessary to phisitians , that is , learning and experience , and upon that there is the proverb , experto credo roberto : and the statute intends that none shall practise here but those which are most learned and expert , more then ordinary : and for that the statute provides , that none shall practise here without allowance and examination by the bishop of london and the deane of pauls , and four learned doctors : but in other places the examination is referred only to the bishop of the diocesse , and the reason of the difference is , for that , that london is the hart of the kingdome : and here the king and his court , the magistrates and judges of the law , and other magistrates are resident , and with this agreed the government of other well governed cities in italy and other nations , as it appeares by the preamble of the said letters patents : and it appeares by the statute , that this was not intended to extend to imposters only , for that that the word imposter is not mentioned in the statute : and the statute provides that they shall be punished , as well for doing and using , as for ill using : and also it is provided that the statute of . marie . parliament , chap. . that the gardians , goalers , or keepers of the wardes , goales , and prisons within the city and precinct of that , shall receive into his prison all such person and persons so offending which are sent or committed to them , and those safely shall keep without bayl , till the party so committed , shall be discharged by the said president , or other person by the said colledge to that authorised , by which it appeares , that the goalers , keepers of prisons , have power to retain such which are committed : that then the president shall have power to commit , for things implyed are as strong as things expressed ; as it appeares by the com. stradlinge and morgans case : and also in the earle of leicesters case , where it is agreed , that joynture before coverture cannot be waved , and this is implyed within the statute of . h. . and so the statute of . ed. . provides that after seven yeares tythes shall be payd , by which it is collected by implycation , that during seven yeares , tythes shall not be payd ; and so he prayed judgement for the defendants . dodridge serjeant of the king , for the plaintiff said , that the statute of ▪ h. . chap. . and the letters patents gives power to four censors to punish for ill executing , doing , and using the faculty of a phisitian , and the plaintiff was not charged for ill executing of it , doing or using : but it is averred , where revera the plaintiff was nothing sufficient to exercise the said art , and being examined , lesse apt to answer , and thereupon they forbade him , and being sent for and not appearing , was amerced five pound , and order that he should be arrested , and being arrested , upon his appearance , being examined if he would submit himselfe to the said colledge , he answered and confessed , that he had practised within the said city , being a doctor of physick as aforesaid , as wel to him it was lawfull , and that he would practise here againe , for which he was committed to prison : so that he was amerced for his contempt in the using of the said art , and committed to prison for his answer upon his examination : and he conceived that there are two questions considerable . first , if the colledge may restraine a doctor of phisick of his practise in london . secondly , admitting that they may , then if these are the causes for which they may commit by their letters patents ; the first reason is drawn from the letters patents , and the said statutes , in which he said that the intent of the king was the end of his work : and this intent shall be expounded for three reasons apparent in the words contained in the grant. first , intempestive conatibus occurrere . secondly , improborum hominum , qui medicinam magis avaritiae suae causa , quam ullius bonae conscientiae fiducia profitebantur , audaciam compescere . thirdly , which would invite learned men to practise here , and for that would , quod collegium prefectum doctorum et graviorum virorum qui medicinarent in urbe nostra londino et suburbibus infra septem millia passium in urbe quaq●● versus , publice exerceant institui volumus et imparamus : and further he said , that there are three sorts of men , which meddle with the body of a man. first , is the learned man which reades all bookes extant , and his knowledge is speculative , and by that he knew the nature of all simples . and the second is practive , the knowledge of which is only his experience , he may give probatum est : but the ignorance of the cause of the disease , and the nature of the things which he applies for the cure of that . and the third is an imposter , which takes upon him the knowledg which he hath not , and every of them the colledge may punish , for male utenda , faciendo vel exequendo , by what way they will : and this was not the first care which was had , for in the . h. . was a private act made for phisitians , by which there is great regard to them which are learned and educated in the university : and for that the act provides that they shall not be prejudicall to any of the universities of oxford and cambridge , and with this agrees . h. . . and the priviledges of them , and the docti et graves homines , mentioned in the letters patents , are the learned men mentioned in the act , for the statute provides that they shall punish according to these statutes , and late edicts : and by the former lawes the universities , that their priviledges were excepted , and by their former statutes , the letters patents ought to be directed , for it is referred to them : also the statutes of this realme have alwaies had great respect to the gradiats of the universities , and it is not without cause , for sudavit et alsit , and hath no other reward but this degree which is doctor , and for that the statute of , h. . prefers graduates , and provides that doctors of divinity or batchelors shall be capable of two benefices with cure without dispensation : and so . eliz. provides that none shall be presented to a benefice above the value of thirty pound per annum , if he be not a doctor or bachelor of divinity : and to the objection , that none shall practise in london or seven miles circute of it without licence , that this clause shall be expounded according to the matter , and to that he agreed , for the other branches of the statute are made to cherish grave and learned men , and for that it shall not be intended , that this branch was made for the punishment of those , but of others which the statute intended to punish . and to the second objection , that every doctor is not the learned and grave man intended within the statute , for the knowledge of many of them is only speculative without practise , to that he answered , that all their study is practise , and that if they have no practise of themselves , then they attend upon others which practise , and apply themselves to know the nature of simples . and to third objection , that in london ought to be choyce men , for the statute appoints that they shall be examined by the bishop and deane and four others at least , and for that there is a more strict course for them , then in other places , to that it is agreed : but he said that in the university there is a more strict course then this , for here he ought to be publickly approved by many after that he hath been examined and answered in the schooles , to diverse questions , and allowed by the congregation house : and . h. . . doctor is no addition , but a degree , ( quia gradatim et progress●one doctrine provenit , to that , and that doctor is teacher , and that he was first taught by others as scholers , afterwards he is master , and doctor dicetur a docendo , quia docere permittitur , and they are called masters of their faculty , and that the originall of doctor came of the sinagogue of jewes , where there were doctors of law ; and it appeares that they had their ceremonies in time of h. . and when a man brings with him the ensigne of doctrine , there is no reason that he should be examined againe , for then if they will not allow of him , he shall not be allowed , though he be a learned and grave man , and it was not the intent of the king to make a monopoly of this practise . and to the second point that he propounded , it seemes that the justification is not good , which is , quia non comperuit , upon summons , he was amerced , and ordered that he shall be arrested , and being arrested , being examined if he would submit himself to the colledge , he answered that he was a doctor , and had practised and would practise within the sayd city , as he conceived he might lawfully do , and for that shewing of this case he was committed to prison , and he conceived two things upon the charter . first , that it doth not inhibit a doctor to practise , but punisheth him for ill using , exercising , and making , and may imprison ▪ the emperick and imposter , and so prayed judgment for the plaintiff , and after in hillary tearm , in the same year , this case was argued by all the justices of the common bench , and at two severall dayes , and the first day it was argued by foster , daniell , and warburton justices , at whose arguments i was not present , but foster argued against the plaintiff , and daniell and warburton with him , and that the action of false imprisonment was well maintainable . and the second day the same case was argued again by walmesley justice , and coke cheife justice , and walmesley argued as followeth , that is , that the statute of . h. . was in the negative , that no person within the city of london or seven miles of that , take upon him to exercise or occupy , as physitian or chirurgion , &c. and he doth not know in any case where the words of the statute are negative , that they admit any interpretation against that but one only , and that is the statute of marlebridge chapter . which provides that no lord shall distrain in one county , and the beasts distrayned drive into another county , in which case though that the words are uegative , yet if the lord distrain in one county , he may drive the beasts to his mannor in another county , of which the lands , in which the distresse was taken were held , but it is equity and reason in this case , that the statute should admit such exception , for it is not of malice , but for that , that the beasts may remain within his fee , but in the principall case there is not the like reason nor equity , and also the king h. . in his letters patents recites as followeth , that is , cum regij officij nostri munus arbitremur , ditionis nostri hominum felicitati omni ratione consulere , id autem vel imprimis fore , si improborum conatibus tempestive occurremus , apprime necessarium duximus improborum quoque hominum , qui medicinant magis avaritiae sue . causa quam ullius . bonae conscienti● fiducia profitebantur , &c. by which it appears , that it is the office of a king to survey his subjects , and he is as a phisitian to cure their maladies , and to remove leprosies amongst them , and also to remove all fumes and smells , which may offend or be prejudiciall to their health , as it appears by the severall writs in these severall cases provided , and so if a man be not right in his wits , the king is to have the protection and government of him , least he being infirme , wast , or consume his lands or goods , and it is not sufficient for him that his subjects live , but that they should live happyly , and discharges not his office , if his subjects live a life , but if they live and flourish , and he hath care as well of their bodyes as of their lands and goods , for health for the body is as necessary as vertue to the minde , and the king h. . to express his extraordinary care of his subjects made the said act , in the third year of his reigne , which was the beginning of his essence , to that purpose , and by the common law , any phisitian which was allowed by the university might practise and exercise the sayd faculty within any place within england , without any dispensation , examination , or approbation of any , but after the making of the sayd act made in the third year of king h. . none may practise , exercise , or occupy as phisitian or surgion within thecity of london and seven miles of that , if he be not first examined , approved , and admitted by the bishop of london , and the dean of paules for the time being , calling to them , foure doctors of phisick or chirurgions , &c. and that no practiser may occupy or exercise the sayd faculty out of the sayd precincts , if he be not first examined , approved , and admitted by the bishop of the diocess , or in his absence , by his vicar generall , every of them calling unto him such expert persons in the said faculty , as their discretions thinks convenient , and the reason of this difference as he conceived , was for that that in this city , and the sayd precincts , the king and all his councell , and all the judges and sages of the law , and divers other men of quality and condition , live and continue , and also the place is more subject unto infection , and the heir more pestiferous , and for that there is more necessity , that greater care , diligence , and examination be made of those which practised here in london and the precincts aforesayd , then of those which practise in other places of the realm , for in other places the people have better aire , and use more exercise , and are not so subject to infection , and for that there is no cause that such care should be used for them , for they are not in such danger , and in the statute there is not any exception of the universities nor of those which are gradiats there , and for that they shall be tryed by the sayd act , and the statute of h. . chapter ▪ only excepts those which are gradiats of oxford or cambridge which have accomplished all things for the form without any grace , and if this exception shall be intended to extend to others , then all the university shall be excepted by that , and such exception was too generall ; and over he sayd , that the plaintiff gave absurd and contemptous answer , when he being cyted before them , sayd that he would not be ruled nor directed by them ( being such grave and searned men ▪ & for that that he hath practised against the statute he was worthily punished and committed , for it should be a vain law if it did not provide punishment for them that offend against that , and bracton saith , nihil est habere leges , si non sit un●s qui potest leges tueri , and for this here are four grave and discreet men to defend and maintain the law , and to punish all offenders against that , according to the statute , by imprisonment of their bodies and other reasonable wayes , and the sayd four men have the search as well of those men , as of other mediciners , and the statute of marie provides that the keepers of prisons , shall receive all which committed by the sayd four grave and learned men , and though there be great ●are committed to them by the sayd statute , and the sayd letters patents , yet there is a greater trust reposed in them then this , for we commit to them our lives , when we receive phis●ck of them , and that not without cause , for they are men of gravity , learning , and discretion , and for that they have power to make lawes , which is the office of the parliament , for those which are so learned may be trusted with any thing , and for the better making of these they have power to assemble all the commons of their corporation , and the king allows of that by his letters patents , for it is made by a congregation of wise , learned , and discreet men , and the statute of marie inflicts punishment upon contempts , and not for any other offences , and they held a court , and so may commit as every other court may for a contempt of common right , without act of parliament , or information , or other legall form of proceeding upon that , as it appeares by h. . for a contempt committed in a leet , the steward committed the offender to prison , and it was absurd to conceive that the statute will allow of commitment , without cause , and it is a marvelous thing that when good lawes shall be made for our health and wealth also , yet wee will so pinch upon them , that wee will not be tryed by men of experience , practise , and learning , but by the university , where a man may have his degree by grace without merit , and so , for these reasons he concluded that this action is not maintainable . coke cheife sayd , that the cause which was pleaded for , that the plaintiff was committed , was for that that he had exercised phisick within the city of london by the space of a moneth , and did not very fitly answer , for which it was ordained by the censors that he should pay a bundred shillings , and that he should forbear his practise , and that he did not forbear , and then being warned of that , and upon that being summoned to appear did not appear , and for that it was ordayned , that he should be arrested , and that after he was summoned again ; and then he appeared , and denyed to pay the hundred shillings , and he sayd that he would practise , for he was a doctor of cambridge , and upon that it was ordained that he should be committed , till he should be delivered by the doctors of the colledge , and upon this was the demurrer joyned , and in pleading the plaintiff sayd , that he was a doctor of philosophy and phisick , upon which the lord took occasion to remember a saying of gallen , that is , vbi philosohpia desinit , ibi medicina incipit , and he sayd the only question of this case depends not upon the payment of the sayd hundred shillings , but upon the words of the letters patents of the king , and the said two statutes , the words of which are , concessimus eidem presidenti , &c. quod nemo in dicta civitate , aut per septem milliaria in circuita ejusdem exerceat dictam facultatem , nisi ad hoc , per dictum presidentem & communitatem seu sucscires , eorum qui pro tempore fuerunt , admissus sit , per ejusdem presidentis & collegij titeras sigillo suo commui sigillat as sub paena centum solidorum pro quolibet mense quo non admissus eandem facultatem exercuit , dimidium inde nobis , & heredibus nostris & dimidium dicto presidenti & collegio applicandum , & preteriá volumus & concedimus pro nobis , &c. quod per presidentem & collagium communitationem pro tempore epistentium , & eorum successores in perpetuum , quatuor singulis annis per ipsos eligantur , qui habeant supervisum , scrutinium , & correctionem & gubernationem omnium & sigulorum dictae civitatis medicorum utentium facultate , medicinae in eadem civitate , ac aliorum medicorum , fornisicorum quorumcunque facultatem illam medicinae , aliquo modo frequentantium & utensium infra eandem civitatem & suburbia ejusdem sibi septem milliarea in circuitu ejusdem civitatis ae putationem eorundem pro delectis suis , in non bene exequendo , faciendo & utendo illa , nec non supervisum & scrutinium hujusmodi medicorum & eorum receptionem , per predictos medicos sive aliquem eorum hujusmodi legeis nostris pro eorum ; infirmitatibus curandis & suavandis , dandis imponendum & utendis quoties & quando opus fuerit , probo modo & utilitate eorundem legiorum nostrorum ; ita quod punitio hujusmodi medicorum utentium dicta facultate medicinae sic in premissis de linquentium , per fines amerciamenta , imprisonamenta corporum suorum & per alas vias rationabiles & congr●as exeqnantur , as it appears in rastal phisitians . . so that there are two distinct clauses . the first , if any exercise the sayd faculty by the space of a moneth without admission by the president , &c. shall sorfeit a hundred shillings for every moneth be that good or ill , it is not materiall , the time is here only materiall , for if he exercise that for such a time , he shall sorfeit as aforesayd . the second clause is , that the president , &c. shall have scrutinium medicorum , &c. & punitionem eorum pro dilictis suis in non bene faciendo ▪ utendo & exequend● , &c. and for that the president and the colledge may commit any delinquent to prison : and this he concluded upon the words of the statute , and he agreed with walmesley , that the king hath had extraordinary care of the health of the subjects . et rex censetur habere omnes artis in sermo pectoris , and he hath here pursued the course of the best phisitians , that is , removens & promovens , removens improbos illos , qui nullis bonae conscientiae fiducia profitabantur & audaces , & promovens ad sanitatem : and for that the phisitian ought to be profound , grave , discreete , grounded in learning , and soundly studied , and from him commeth the medicine , which is removens & promovens . and it is an old rule , that a man ought to take care , that he do not commit his soul to a young divine , his body to a young phisitian , and his goods or other estate to a young lawyer , for in juveni theologo est conscientiae detrimentum in juveni legislatori bursi detrimentum et in juveni medico cimitorij incrementum , for in these cannot be the privity , discretion , and profound learning which is in the aged : and he denied that the colledge of phisitians is to be compared to the university , for it is subordinate to that , cantabrigia est academiae nostrae nobilissima totius regni occulus , et sol ubi humanitas et doctrina simul fluant : but he said , when he names cambridge he doth not exclude oxford , but placeth them in equall rank : but he would allwaies name cambridge first , for that was his mother : and he saith that there is not any time , pro non bene faciendo , utendo et exequendo for this , non suscipit manus et minus , for so a man may greviously offend in one day , and for that in such a case , his punishment shall be by fines , amercements . imprisonments of their bodies and other waies , &c. but if practise well , though it be not an offence against the letters patents and the statutes yet the punishment shal be but pecuniary , and shall not be imprisoned , for if he offend the body of a man , it is reason that his body shall be punished , for eodem modo quo quis delinquit , eodem punietur , but if a grave and learned doctor or other , come and practise well in london by the space of three weekes and then departs , he is not punishable by the said colledge , though that they be without admition , for peradventure such a one is better acquainted with the nature and disposition of my body , and for that more fit to cure any malady in that then another which is admitted by the colledge , and he said that it was absurd to punish such a one , for he may practise in such manner in dispite of the colledge , for all the lords and nobles of the realme , which have their private phisitians , which have acquaintance with their bodies , repaire to this city , and to exclude those of using their advise , were a hard and absurd exposition , for the old verse is , corporis auxilium medico committe sodali : and also he said that the said president and colledge cannot commit any phisitian , which exerciseth the said faculty without admission , for the space of a month , nor bring their action before themselves , nor levy that by any other way or meanes : but ought to have their action or exhibit an information upon the statute , as it appears by the book of entries , for they ●ught to pursue their power which is given to them by the statute , for otherwise the penalty being given , the one moytie to them , and the other to the king , they shall be judges in propriacausa , and shall be summoners , sheriffs , judges , and parties also ; which is absurd ▪ for if the king grant to one by his letters patents under the great seale , that he may hold plea , although he be party , and if the king doth not appoint another judge , then the grantee which is party , the grant is void , though that it be confirmed by parliament , as it appeares by . h. . . ed. . the abbot of readings case , for it is said by herle in . ed. . . tregores case , that if any statutes , are made against law and right , and so are these , which makes any man judge in his own cause , and so in . h. . fitz. annuity . that the statute of carlile will that the order of cistertians and augustines , which have covent and common seale , that the common seale shall be in keeping of the prior , which is under the abbot , and foure others which are the most sages of the house , and that any deed sealed with the common seale which is not so in keeping shal be void , and the opinion of the court that this is a void statute , for it is impertinent to be observed , being the seale in their keeping , the abbot cannot seale any thing with it , and when that it is in the hands of the abbot , it is out of their keeping , ipso facto : and if the statute shall be observed , every common seale shall be defeated by one simple surmise , which cannot be tryed , and for that the statute was adjudged void , and rep●gnant : and so the statute of glocester which gives cessavit after cesser by two yeares to be brought by the lessor himselfe , was a good and equitable statute : but the statute of westminster . chap. . which gives cessavit to the heire for cesser in time of his ancester , and that , that was judged an unreasonable statute in . ed. . for that , that the heire cannot have the arrerages due in the time of his father , according to the statute of clocester , and for that it shall be void : and also the physitians of the colledge , could not punish any by fyne and also by imprisonment , for no man ought to be twice punished for one offence , and the statute of . mariae doth not give any power to them to commit for any offence which was no offence within the first statutes , and for that he ought not to be committed by the said statute of . mariae : but admitting that they may commit , yet they have mistaken it , for they demand the whole hundred shillings , and one halfe of that belongs to the king : and also they ought to committ him forthwith , as well as auditors which have authority by parliament , to commit him which is found in arrerages : but if he do not commit him forthwith , they cannot commit him afterward , as it appeares by . h. . . so two justices of the peace may view a force and make a record of that , and commit the offenders to prison , but this ought to be in flagranti oriente : and if he do not commit those immediately upon the view , he cannot commit them afterwards , and the physitians have no court , but if they have , yet they ought to make a record of their commitment , for so was every court of justice : but they have not made any record of that : and auditors and justices of peace , ought to make records , as it appeares by the book of entries : so that admitting that they may commit , yet they ought to do it forthwith , but in this case they cannot commit till the party shall be delivered by them , for this is against law and justice ; and no subject may do it , but till he be delivered by due course of law , for the commitment is not absolute , but the cause of that is traversable , and for that ought to justifie for speciall cause , for if the bishop returnes that he refuses a clark , for that he is schismaticus inveteratus , this is not good , but they ought to returne the particuler matter : so that the court may adjudge of that : though it be a matter of divinity and out of their science , yet they by conference may be informed of it , and so of physick : and they cannot make any new laws , but such only which are for the better government of the old ; and also he said plainly , that it appeares by the statute of . marie : that the former statutes shall not be taken by equity , for by these the president and commons have power to commit a delinquent to prison , and this shall be intended , if they shall be taken by equity , that every goaler ought to receive him which is so committed : but when it is provided by . marie , specially that every goaler shall receive such offenders : that by this appeares , that the former statute shall not be taken by equity : and so he concluded , that judgement shall be entred for the plaintiff , which was done accordingly . trinity . jacobi , . in the common bench. in debt upon escape brought by john guy an attorney of the common bench , by an attachment of priviledge against sir george reynell kt. deputy marshall of the prison of the kings bench , the defendant pleads his priviledge , that is , that he was deputy marshall , and he ought not to be sued in other court , then in the kings bench , according to the ancient custome , and jurisdiction of the sayd court , upon which the plaintiff demurred , and upon argument of both parties , it was adjudged that the defendant should not have his priviledge , and the principall reason was , for that the plaintiff was an attorney , and ought to have his priviledge in the common bench , and for that that this court was first possessed of the suit , it shall not be stayed , because of the priviledge of the defendant in another court , see ed. . . the last case , where it is agreed , that one of the courts may send supersedeas to another , for there it is agreed that if an accountant in the exchequer be sued in the common bench , he shall send supersedeas to them to surcease , and if he be sued in the kings bench , these of the exchequer will shew the record that he is accountable , for they cannot make supersedeas to the king , and the plea is there held coram rege , &c. and he shall be dismissed , for he may be sued in the exchequer ; and also ed. . . b. it appears that if one which hath cause to have priviledge in the common bench sue an attachment , as our case is , against a clark of the kings bench , such writ shall not be allowed , for that that the common bench was first seised of the plea , by their plea , and the priviledge of the common bench is as ancient as the priviledge of the kings bench , and one court is as ancient as the other , for every of them is before time of memory , and it is by prescription . walmesley sayd , that the possessory shall be preferred , quia melior est conditio possidentis , but he agreed that if the priviledge of one court be not so ancient as the other , then the most ancient shall be preferred , and it was agreed that though there be difference in respect of parties , or though that the attendance of one be of more necessity then the other , as it was objected in this case ; that the defendant ought to attend , otherwise he shall loose his office ; to that it was answered , and resolved that the cause of the suit in the common bench was voluntary , and the attendance of the attorney or clark more necessary , then of the defendant , for hee may exercise his office by a deputy , but a clark or an attorney cannot , for their office is opus laboris , but the office of the defendant is only opus labrum , and he is to deal with gyves and irons and such like , so that in this case the office and place of a clark or attorney is to be preferred before the office of marshall , but admitting that one inferiour officer of the common bench , which is to have his priviledge sue a superiour officer of the kings bench which is also to have his priviledge there , this shall not make any difference : and so was the opinion of all the court , and upon this , judgment was given that the defendant should answer over . trinity . jacobi . in the common bench. in assise between william parson alias chester plaintiff , against thomas knight alias rouge cross tenant for the office of one of the heraulds called chester , the recognitors of the assise had view at a funerall at westminster , where the officer ought to attend , and it was objected that this was no good view , for it was not in any place certain , where the recognitors may put the demandant in possession , and the disseisin was alledged to be at westminster at the sayd funerall , and it seems that the view was good , but admitting that it were not good . it seemes to coke cheif justice , that the assise in this case well lies without view , for the office is universall , as the office of the clark of the market , and an assise for tithes , and the office of the tennis court , these are universall , and not annexed to any place , and for that an assise wel lies for them without view , but for an office in the common bench , view may well be made in the court , for the court is alwaies held in a certain place , but for an office in the kings bench , quere , inquit coke , for this ought to follow the court of the king by the statute of articuli cleri , chapter . but walmesley justice , that this court cannot be sitting in clouds , but in some place or other , and for that the view ought to be here made , and then coke sayd , by the same reason the office of the herauld cannot be exercised in the clouds , but at funeralls , and by this the view ought to be made there also , but the opinion of all the court was , that the view was well made : the tenant in assise also challenged diverse of the recognitors , for that they were of a former jury upon the same question , and this was agreed to be a principall cause of challenge , but the court would not allow of that without shewing the record , but allowed that to be a cause of challenge for favour , and for that they were tryed by their companions , being sworn to speak the truth , and they were found to be indifferent , and for seisin for the demandant in the assise , it was shewed that diverse fees were due to the sayd office , as seven pound for every day that he attended upon the kings person , and for the dubbing of every knight , and that diverse of those fees were received ( and this office being litigious ) were delivered to be detained in deposito , and to be delivered to him which was officer , and the plaintiff brought an action by the name of chester as officer and recovered those fees , and this was resolved good seisin , and also that seisin after the grant of the office , and before the investing of the patentee by the marshall was good , for the investing was but a ceremony , it was also resolved that where an office extends to all the parts of england , and that here an assise doth not lie in any county , though that the dissesin were made in one county , but the assise be brough for the profit of the office in one county and not for the office it selfe , . ed. . feoffments and deeds : that by grant of the profits of a mill and livery , the mill it selfe passes , so that taking of the profits is dissesin of the office , also it was objected that the demandant was no officer , for though that he hath a patent of it , yet he was not invested nor installed in the office , which appeares to the marshall , and for that he was no officer , and so hath no cause to have action : and that this is an office which is incident and annexed to the office of earle marshall , and though that he be not earle marshall , yet there are commissioners have his power and authority , and for that the investing and instalment of the plaintiff in the said office appeares to the said commissioners ; but it was resolved cleerely by all the justices , that the demandant was officer by the kings grant , without any installation or investing , and that this without that , all the fees and profits of the office appertayning to him , and that the investing and installation , was but a ceremony , in the same manner as if the king hath a donative , and gives that to another , the donee shall be in actuall possession by the gift , without any induction or other ceremony : but admitting that the office were annexed to the office of earle marshall , then it was agreed that the commissioners cannot give it , as the cheife justice of the common ●ench hath divers offices appertaining to his place , and he may dispose of them ; but if he die , the king in time of vacancy , nor the most ancient judges cannot give or dispose of any of them being void , as it appeares by serrogates case , eliz. dyer : and so the cheife justice is made , and allwaies hath been made by patent , and so are the other justices , and for that they cannot be made by commissioners , and so the cheife justice of england , hath all times been made by writ , and for that cannot be made by patent , nor by commission : and so in the case at the barr , though that the commissioners have the power and authority of the earle marshall , yet they are not earle marshall , it was also objected that the fees were not due to the plaintiff , for that he did not attend : but to that it was answered and resolved , that the fees were due to the office , and for that non attendance of the office , was no forfeyture of the fees : and upon these resolutions the recognitors found for the demandant , according to the direction of the court. trinity . jacobi , . in the kings bench. godsall . gods all and his wife : the proclamations of the fyne were well and duly entred in the originall remaining with the chirographer : but in the transcript with the custos brevium was error , and it seemeth that this notwithstanding the fyne was good , but the transcript was amended . trinity . jacobi , . in the kings bench the town of barwicke . the king which now is , by his letters patents , incorporated the mayor , bayliffs , and burgesses of barwicke , and granted to them the execution of the returne of all writs : and after a writ of extendi facias was directed to them , and they made no returne of that , and upon this was the question , if that shall be executed by them , or by the sheriff of northumberland : and it seemed to nicholls serjeant , that argued for the plaintiff in the extent that desired execution and the returne of that , that they ought to make execution and returne , for it seemes to him that this was english , and that this appeares by the act of parliament , by which the incorporation was confirmed , and so it appeares also by the letters patents of the king , by which the incorporation is made , for if it were not english , neither the letters patents nor the act of parliament are sufficient to make incorporation of that , and also they certified burgesses to the parliament of england : and the kings bench sent habeas corpus to it , and for the not returne of that inflicted a fyne upon the corporation : see . ed. . , and . ed. , . but hutton serjeant seemed to the contrary , and that they ought not to make execution , for he said it is a part of scotland , and not part of england , and it was conquered from that , and it was a sherifwicke , and hath the same priviledges of ancient times , which they now have by their new grant : see ed. . and . ed. . obligation , &c. that one obligation dated there shall not be tryed in england , and also that it is not within the county of northumberland , nor part of it , nor the sheriff of northumberland cannot meddle in it , see . h. . . . h. . . and it is adjourned . it seemes that jacob and james are all one name , for jacobus is-latine for them both , but walmesley conceived that if he be christened jacob , otherwise it is , as if one be christened jacob , and another james , then they are not one selfe same name . note that coke cheife justices said , that if commissioners by force of dedimus potestatem , take a fine of an infant ▪ that they are fynable and ransomable to the value of their lands , and that this shall be sued in the star chamber . trinity . jacobi , in the common bench. robinson . robinsons case : a man devises lands to his wife for life , the remainder to his son , and if his son dies without issue , not having a son , that then it should remaine over , and it seemed that this it a good estate tayl , and it was adjudged accordingly . if a man makes a lease for three yeares , or such a small tearme , to his son or servant to try an ejectione firme , or if it be made to another inferion by a superior , which cannot countenance the suit , it shall not be intended maintenance , nor buying of tytles , which shall be punished . trinity jacobi . in the common bench. note , an attorney of the common bench was cited before the high commission and committed to the fleet , for that he would not swear upon articles by the commissioners ministred , and habeas corpus was awarded to deliver him , and a prohibition to the court of high commission , see . and . eliz. scroggs case b. dyer , and there in margery hynds case , who eliz. noluit jurdre coram justiciarijs ecclesiasticis super articulos pro usura , and leyes case . and . eliz. michaelmas rot. . and it is written in the book of the lord dyer but not printed , the case was , ley being an attorney of the common bench was committed to the fleet , by the bishop of london and two others of the high commissioners ecclesiasticall , for that that he was present at a masse , and he refused to be examined upon his oath upon articles administred by the high commissioners , see also ▪ edw. . keysers case upon the statute of . h. . chapt . which gives authority to the arch-bishop to imprison , &c. and see the register fol. . b. the form of an attachment against the bishop , which cited aliquos laicos , ad aliquas cognitiones faciendas , vel sacramentum prestandos nisi in casibus matrionalibus & testimeutarijs , &c. but it was urged that the judges of the common law , shall not have the exposition of the statute of . eliz. because it was an ecclesiasticall law , but it was resolved by all the justices , that it belongeth to the judges of the common law to expound this , for the statute was temporall meerly , and with this . ed. . . b. c. upon the statute of h. . chapt . which provides , quod libellus sit deliberatus parti in casu , ubi per legem deliberandus est , & hoc sine difficultate , and though that this act be meer spirituall , yet the exposition of that lyes open to the common law. michaelmas . jacobi . in the common tench . estcourt and harrington in trespass upon the case between george estcourt plaintiff , and sir james harrington knight defendant , for that , that the defendant sayd that the plaintiff was a forsworn and perjured man , which the defendant justified , for that that the plaintiff exhibited and english bill , in the marches of wales , before the president and councell there , and in the same suit made an affidavit , upon which an injunction was granted for the possession of land in question between them , for the sayd plaintiff , and that the sayd affidavit was false , and the plaintiff hath committed perjury in that , and this was allowed good justification , the jury was of the counties of glocester and salop , and the words of the distringas were ordinary till towards the end , and that was ad faciendam quendam juratum simul cum alijs juratoribus comitatus nostri salop , and this was the distringas directed to the sheriff of glocester , and so mutatis mutandis in the distringas directed to the sheriff of salop ; and note that the jurors were sworn one of one county and another of another county , alternis vicibus , and . were returned of every county . michaelmas . jacobi . in the common bench. simpson and waters . sympson against waters in an action of trespasse upon the case for slander , that is , thou art drunk , and i never held up my hand at the barr , as thou hast done , and agreed that an action doth not lye for these words , for peradventure he intended buttery barr , and by foster justice , if he had sayd for felony , that the action doth not lye , for many honest men are arrained , but if he saith he was detected action doth not lye , but if he saith he was convicted for perjury action lyeth as seemed to him . in trespass the originall bore teste . ianuary . iacobi and in the count the trespass is supposed ianuary . iacobi , which is after the teste of the originall , and agreed that this shall not be aided by the statute o● jeofailes , but if it were originall otherwise it is . michaelmas . jacobi . in the common bench , hare and savill . in covenant by john hare and hugh hare against john savill , the plaintiffs made a lease for years to the defendant , rendring rent at two feasts , or within ten dayes after every of those , at the temple church , and the defendant covenanted to pay the rent according to the reservation , and for the non payment these plaintiffs brought an action of covenant , to which the defendant pleads levied by distress , and upon this the plaintiffs demurred , and adjudged with the plaintiffs accordingly , for that the defendant for his plea , hath confessed that it was not payd according to the reservation , for the plaintiffs cannot distrain , if it were not behind after the day , and it was agreed , that where a rent is reserved to be payd at such a feast or within twenty dayes , that the lessee in this case shall have election if he will pay that at the feast ; or at the end of twenty dayes , for he is the first actor , and the lessor cannot distrain nor have action of debt , till the twenty dayes be past , and it was agreed , that the covenant shall not alter the nature of the rent , but that nothing behind , or payment at the day , were good pleas. defendant in debt pleads to the law , and was ready at the barr to wage his law ; and it was resolved by the judges upon conference with the prothonotories that it might be continued , but the court would advise . in action upon the case upon assumpsit , the plaintiff counts , that diverse goods were delivered to him in pawn , and that in consideration that he should deliver them to the defendant , the defendant assumed and promised to pay to him the debt for which the goods were pawned , and it was objected that the count was not good , for that it doth not contain the certainty of the goods which were pawned ; and delivered to the defendant , but to that this difference was agreed , that when goods are to be recovered and dammages for them , and are in demand , the certainty of the goods ought to appeare in particuler , as if a man pleades , that he was never executor , nor administred as executor , it is a good plea , for the plaintiff that he administred diversa bona in such a place , so if he plead that he hath diversa bona natabilia in other diocesse , it is good i● both cases without shewing what goods in certaine , see . h. . . ed . also it was objected that the consideration was not sufficient , and then it shall be nudum pactum ex quo non oritur actio , for the plaintiff hath not any interest in the goods , and they were delivered him to keep , and not to deliver over , so that the delivery was vitious , and for that it shall be no good consideration , and of this opinion was foster justice : but coke , wraburton , danyell , and walmesley being absent , it seemes that the condition was good , as if a man in consideration that another will go to westminster , or cure such a poor man , or mary a poore virgin , assume to pay to him a sum of money : and though this consideration were not valuable , yet it seemes good : and he that pawned hath a property in the goods , and may have them againe . in debt against three executors , two of them are out lawed , and the third pleads and verdict against him , and it was resolved that the judgement shall be against all by the statute of . ed. . for they all are but one executor , and the cost shall be against him which pleades , if the others confesse or suffer judgement by default : and there shall be but one judgement and not diverse , see ed. . . b. h. . upon a venire facias awarded , the sheriff returnes but . and the habeas corpora was against . only , and this was also returned , and upon that ten appeared , and upon this tales was awarded , and triall had , and but ten of the principall pannell sworne : and this was error , but if twelve of the principall pannell had appeared and served , it seemes that it shall not be error , for so it was resolved in graduers case , where twenty three were returned , but twelve appeared and tryed the issue , and this was resolved to be good and no error . michaelmasse , jacobi , . in the common bench. buckmer against sawyer . a man seised ▪ of land in gaelvelkind hath issue three daughters , that is , a. b. and c. deviseth all his land to a. in tayl , the remainder of one halfe to b. in tayl , the remainder of the other halfe to c. in tayl , and if b. died without issue , the remainder of her moytie to c. and her heires , and if c. died without issue , the remainder of her moytie to b. and her heires , the devisor dies a. and b. dies : and the question was , if c. shall have a formedon in remainder only , or severall formedons for this land : and it seemed to all the justices , that one formedon lieth well for all , for that , that it was by one selfe same conveiance , though that the estate come by severall deaths , and this action was to be brought by the heire of c. after the death of c. see the three and four phil. and mary dyer . note that after appearance of a jury , and after that divers of them were sworn , others were challenged , so that it could not be taken by reason of default of jurors : but a new distringas awarded , and at the day of the returne of that , these which were sworn before appeared , and then were challenged : but no challenge shall be allowed , for that , that they were sworn before , if it be not of after time to the first appearance . michaelmasse . jacobi , : in the common bench. baylie against sir henry clare baylie against sir henry clare , the writ was of two parts , without saying in three parts to be divided : and it seemed to nicholls serjeant which moved this , that it was not good , but error : but the opinion of the court was that it was good : see . ed. . . . ed. , breife . . assise with this difference , that if there are but three parts and two are demanded , there it is good without saying in three parts to be devided , for when parts are demanded it is intended , all the parts but one , and that it is only one which remaines , see the register fol. . . assise : and it was adjudged in the kings bench in the case of one jordan , that demand of two parts where there are but three parts is good , see . h. . salford against hurlston in formedon which demanded two parts where there is but three , and so of three parts where there is but four , it is good without saying , in three or four parts , to be divided : but if a man grant his part , this shall be intended the halfe , for appellatio partis dimidium partis contenetur , and a writ of covenant ought to be of two parts without saying in three parts to be divided , for so is the forme , and if in such case in three parts to be divided be incerted , the writ shall abate , see thelwell in his digest of writs , . and by coke if a man bring ejectione firme for ten acres , and by evidence it appeares that he hath but the halfe ex vigore juris it shall not be good , but he said he would submit his opinion , to the judgement of ancient judges of the law which have often time used the contrary . note that the husband may avoid his deed , that he hath sealed by the duresse of imprisonment of his wife or son : but not of his servant , and so mayor and commonalty may avoid a deed sealed by duresse of imprisonment of the mayor , for it is idemptity of person , between the husband and the wife : see . ed. . and . ed. . a man may avoid se●sin for payment of rent by coersion of distresse but not his deed. michaelmasse . jacobi , . in the common bench. payn and mutton . in an action upon the case by payne against mutton , the plaintif counts that the defendant called him sorcerer and inchantor : and agreed by all the justices that action doth not lie , for sorcerer and inchantor are those which deale with charmes , or turning of bookes , as virgill saith , carminibus circes socios mutavit ulissis , which is intended charmes and inchantments , and conjuration is of con et nico , that is to compell the divell to appeare , as it seemes to them against his will , but which is that to which the devill appeares voluntarily and that is a more greater offence then sorcery or inchantment , which was adjudged that action doth not lie for calling a man witch , and said that he bewitched his weare that he could not take any fishes : dodridge the kings serjeant saith that an action lieth for calling a woman , gouty pockye whore , and said that the pox had eaten the bottome of her belly out , and so it was adjudged that it lieth well for these words , get thee home to thy pokey wife the pox hath eaten off her nose : but for the pox generally action doth not lie : but if he sai●h that he was laid of the pox , then action well lieth , for then it shall be intended the great pox. note that in prohibition and replevin , the defendant may have nisi prius by proviso without default of the defendant , for he himselfe is re vera defendant , and there are two actors , that is the plaintiff and defendant : but the court appointed that presidents should be searched , the plaintiff is not bound to prosecute cum effectu in this court , as he is in the kings bench : and it was agreed that the manner of pleading was agreement , as for returno habendo , in the replevin and pro consultatione habenda in the prohibition . michaelmas . jacobi , . in the common bench miller and francis. myller plaintiff in replevin against thomas francis , the case was , richard francis was seised of land held in socage , and deviseth that to john his eldest son for a hundred yeares , the remainder to thomas his second sonn for his life , and made his four other youngest sonns his executors , and after made a feoffment to the sayd uses , the remainder to the sayd john his eldest son in tayl ; proviso that if the sayd john disturbed the executors of taking his goods in his house , that then the sayd use and uses limited to the sayd john francis and his heires shall cease , and after declared that his intent was , that in all other points his will should be in his force , and it was pleaded that iohn did not suffer the sayd executors to take the sayd goods in the sayd house , and if his estate for years , or in tayl , or fee-simple shall cease was the question , and it seemed to the judges that the condition shall not be idle ; but shall have hi● operation , as it appears by hill and granges case and the lord barkleyes case in the comment . and the lord cheneyes case , coke , and it seems also , that it shall not be referred to estate in fee simple , for then it shall be void , and it shall not be referred to a tearm , for it is limited to an estate limited to the said iohn and his heires , but it seemeth it shall be referred to an estate tayl only , as it is and . p. and mary dyer . . h. . . but the case was adjudged upon one point in the pleading , for it was not pleaded that iohn francis had notice of the devise , nor that he had made any actuall disturbance , and peradventure he entered as heir and had no notice of the condition , and when the executors came to demand the goods which were belonging to the heir , and annexed to the house , and he sayd that it doth not appear to them to prove that an express notice was given in this case , the books of assise where a man was attaint and after was restored by parliament , and a writ being directed to the esceator , the escheator returns , that he was disturbed , and upon scire facias the disturber pleads , that he had no notice of the sayd act of restitution , and for this he was excused of disturbance : and see . h. . barr , . michaelmas . jacobi , . in the common bench. waggoner against fish . waggoner brought a writ of priviledge , supposing that he had a suit depending here in the common bench , which was directed to the maior and sheriffs of london , and upon the return it appears , that . iacobi an act of common councell was made that none should be retayler of any goods within the same city , upon a certain pain , and that the chamberlain of the said city for the time being , may sue for the said penalty to the use of the sayd city , at any of the courts within the said city , and that the defendant hath retailed candles , and held a shop within the sayd city being a stranger , and against the sayd act , and for the sayd penalty , the chamberlain hath brought an action of debt within the sayd city , according to the sayd act of common councell , and upon the return it appeares , that by their custome the maior and aldermen with the assent of the commoners of the said city , may make by-laws for the government of the sayd city , and that the sayd custome , and all other their customes , were confirmed by act of parliament , and upon this it seems , that though there be not remedy given , for this penalty in another place then in london , that yet if it be against law he shall not be remanded , and if a corporation hath power to make by-laws , that shall be intended for the government of their ancient customes only , and not to make new lawes , see ed. iohn de brittens case , but it seems if this by-law be for the benefit of the common-wealth , that it shall be good , otherwise not , and it was adjourned , see hillary next insuing , for then it was adjudged , that he shall not be remanded , see afterward michaelmas . iacobi , it was adjudged . note that this tearme was adjourned untill the moneth of michaelmas by reason of the plague , and upon the adjournment this insued , and was moved by yelverton and crook at the bar , and the case was this . michaelmas . iacobi , . in the common bench. poynes being an infant levies a fine , and in trinity tearm last past brought his writ of errour in the kings bench , and assigned for errour , that at the time of the fine levied was , and yet is within age , and prayed that he be inspected , and insomuch that he had not his proofs there , he was not inspected but dies datus est usqu● octabis michaelis proximas , at which time came the said poynes the day which was wont to be the day of the essoyn , and prayed justice crooke ( which was there to adjourn the tearm ) to inspect him ; and to take his proofs , who did inspect him accordingly , de bene esse , and now before the moneth of michaelmas the infant came of full age , and if this inspection were well taken , and what authority the judge had upon that day to adjourn , was the question . and flemming cheife justice sayd , that the day of essoyn is a day in tearm , and that the court was full though there was but one judge , and if the inspection had been the day of the essoyn , and before the fourth of the post , he had come of full age , this shall be very good , but the doubt rose as the case is , if upon the day of adjournment the judge had power to do any thing but to adjourn the tearm , and for that it was appointed to be argued , and for the argument of that , quere of my author lane. michaelmas . iacobi in the common bench. rivet plaintiff , downe defendant . in an action upon the case upon an assumpsit , the case appears to be this , copy-holder makes a lease for a year according to the custome of the mannor the lord distrains the farmer of the copy-holder for his rent , and the copy-holder having notice of that , comes to the lord , and assumes that in consideration , that the lord should relinquish his suit against his farmer , touching the same distress he would pay the rent by such a day , the lord delivers the distress , and for default of payment at the day , brings an action upon the case , and upon non assumpsit pleaded , verdict passed for the plaintif : and barker serjeant came and moved in arrest of judgment . first that a man cannot distrayn a copy-holder but he ought to seise , but williams justice and others to the contrary ; and by him if a man makes a lease at will rendring rent he may distrain for this rent , h. . . the case of rescous . secondly , he moved that when the lord distraines , that now the tenant hath cause of action , that is replevin , and for that it cannot be sayd sectam suam , and so the consideration failes , but all the court against that , and that this was a good consideration , and by flemming cheife justice , distress is an action in it self , because this is the cause of a replevin , and when the tenant brings his replevin and the lord avowes , now is the lord an actor , and so it is secta sua , and by him secta is not only an action hanging , but that which is cause of an action , and judgement was given for the plaintiff . michaelmasse . jacobi , . in the common bench. flemming and jales . actione upon the case for these words : thou hast stolen my goods , and i will have thy neck , and maintainable . michaelmasse . jacobi . in the common bench. ayres case . action upon the case for these words ; ayer is an arrant theife , and hath stolen divers apple tres out of j. s. garden , and the action well maintainable , otherwise if he had said , for he hath stolen , &c. for then it should not be fellony to steale trees , and the word ( for ) shewes the reason why he called him theife , but the word ( and ) not . michaelmasse . jacobi , . in the common bench. bryan chamberlaines case against goldsmith . in debt upon an obligation , in which the under sheriff was bound to the sheriff , for the performing of diverse covenants contained in an indenture made between them for the exercising of the said office , and the plaintiff assigned breach of cevenant , by which the under sheriff hath covenanted , that he would not execute any processe of execution without speciall warrant and assent of the sheriff himselfe : and the sole question was , if this covenant be a good and lawfull covenant or not , and it was argued by hutton serjeant for the defendant , that counted that the sheriff is a publick officer , and may execute the office by himselfe , yet when he hath made an under sheriff , he hath absolute authority also , and it is not like to private authority , but it is as if a man make an executor , provided that he shall not administer , his debts above the value of forty pound : and as if an obligation with condition , that if an obligor shall keep the obligee without damages for four beefes taken in withernam , that the obligation shall be void , or as if a man takes an obligation of his prentise , with condition that he shal not use his trade within five yeares , or within ten miles of such a place , or as a steward takes an obligation of another man with condition that he shall not sue in other place but where he is steward , or in the common bench , this abridges the subject of his right , and that the under sheriff is a publick officer and mentioned in many statutes , though he shall not be an attorney the same yeare in which he is under sheriff : and the statute of . h. . restraines the under sheriff , that he shall not let any prisoners to bayl , but in the same manner as is contained in the statute , and further he said , that all obligations which have impossible conditions are good , and the condition void , but if the condition be against law , the obligation and condition also is void : and so he concluded that the under sheriff is a publick officer , and that his office cannot be apportioned , and that the condition was performing of a covenant which was against law and void , and so by consequence the obligation void : and so praied judgement for the defendant : and for the plaintiff is was argued by dodridge serjeant of the king , that the obligation is good and not void : and he said that there are two officers to all the courts of the king , which are to execute all writs , and that these officers are sheriff and bishop , and the law doth not take any notice of under sheriff , or warden of spirituallties , for the sheriff himselfe shall be amerced and not the under sheriff , which is but his substitute , and it appeares by . h. . . b. that all writs shall be directed to the coroner , and by him ought to be executed , and . h. . . the sheriff was merced for an arrest made by a bayliff of a franchise , and and though that the warden of westminster hall is an officer to the kings courts to some purpose , yet no writ shall be directed to him , as it appeares by ed. . . also he agreed that the power of the sheriff is double , that is ministeriall and juditiall , and some times he executes both together , as in redisseisin , for of that he is judge and also is minister to the court of the king , and yet he is but one man , for the law doth not take any notice of under sheriff , nor intends , that he shall supply any of these offices , for the under sheriff is but servant to the sheriff , and to execute his ministeriall power only , and if it be so , he may limit his authority at his pleasure : and if the sheriff make a false returne , or otherwise retard , or make an uncertain returne , he himselfe shall be punished by action , for the law requires knowledge and intelligence of the sheriff , and the ancient statutes made in the old time , make mention of sergeants at mace , and yet they make not any mention of under sheriff , which is but servant . and he agreed that an obligation taken with condition , against law is void , but he said that this is not against law , for the under sheriff is a person of whom the court doth not take any notice , for he is but servant of the sheriff , and for this case , and removeable at his pleasure , and he may exercise his office by himselfe when he pleases , and also he argued that the authority which may be totally countermanded , may be countermanded in part , and that the under sheriff hath derivata potestas , quae semper talis est qualis committitur : and by . h. . a man may make two executors , one for his goods in middlesex , and the other to administer the goods in london , and this is good between them : but not against a stranger , for he ought to sue them both , and he shall not be prejudiced by that , and so , h , . brook executor , . a man made two executors proviso that one should not administer in the life of the other , and , h. . . feoffment and letter of attorney to make livery to three or to any of them , livery cannot be made to two , and also he said that there is no difference between power derived from a private person , and power derived from the publick , when this power comes to execution : and admitting that the sheriff may limit the authority of his under sheriff for a time , as it seemes that he may , then of this it followes , that he may allwaies abridge and apportion his authority : and he agreed that when an under sheriff is made , diverse statutes have been made to punish him if he offend : but the sheriff is not compellable to make under sheriff : and as to the obligation , that if an execution be delivered to the under sheriff , against one which is in his presence , that he ought to execute it , he saith that the law is not so , for the party ought to deliver the execution to the sheriff himselfe , for it doth not appeare that he hath an under sheriff : if he have received a writ of discharge or not : and also the office of the sheriff is of charge to the king and to the common wealth , and the execution of writs may be prejudicall and penall to the sheriff himselfe : and for that he may well provide , that he shall have notice of every execution which are most penall : and also in all the indenture now made , he doth not constitute him to be his under sheriff , but only for to execute the office , and for these reasons he seemed the obligation is good , and demands judgement for the plaintiff : but it seemes to all the court , that the covenant is void , and so by consequence the obligation , as to the performance of that void , but good to the performance of all other covenants : and coke cheif justice said , that the sheriff at the common law was elligible as the coronor is , and then by the death of the king his office was not determined , and also it is an intire office , and though the king may countermand his grant of that , intirely , yet he cannot that countermand by parcells , and also that the under sheriff hath office which is intire , and cannot be granted by parcells , and this covenant will be a meanes to nourish bribery and extortion , for the sheriff himselfe shall have all the benefit , and the under sheriff all the payn , for he is visible , the under sheriff and all the subjects of the king will repaire to him , and the private contracts between the sheriff and him are invisible , of which none can have knowledge but themselves . and warburton sayd ; that in debt upon escape , &c. are against the sheriff of notingham , he pleaded nihil debet , and gives in evidence , that the bayliff which made the arrest , was made upon condition , that he should not meddle with such executions , without speciall warrant of the sheriff himselfe , and his consent , ( but it was resolved ( this notwithstanding ) that the sheriff shall be charged in : and in the principall case , judgement was given accordingly , that is , that the covenant is void note that the sheriff of the county of barkes , was commited to the fleete , for taking twenty shillings for making of a warrant upon a generall capias utlagatum , for all the justices were of opinion , that the sheriff shall not take any fees for making of a warrant or execution of that writ , but only twenty shillings and foure pence , the which is given by the statute of . h. . for it is at the suit of the king : but upon capias utlagatum unde convictus est , which is after judgement , it seemes it is otherwise . a man grants a rent to one for his life , and halfe a yeare after to be paid at the feasts of the anunciation of our lady , and michaell the archangell by equall portions , and covenants with the grantee , for the payment of that accordingly ; the grantee dies . februar●… , and for twenty pound which was a moyity of the rent , and to be payd at the anunciation after , the executors of the grantee brings an action of covenant , and it seems it is well maintainable . and coke cheife justice sayd , that if a man grants rent for anothers life , the remainder to the executors of the grantee , and covenant to pay the rent during the tearm aforesayd , this is good collective , and shall serve for both the estates , and if the grantee of the rent , grant to the tenant of the land the rent , and that he should distrain for the sayd rent , this shall not be intended the same rent which is extinct , but so much in quantity , and agreed that when a rent is granted , and by the same deed the grantor covenants to pay that , the grantee may have annuity or writ of covenant at his election . michaelmas . jacobi , . in the common bench. waggoner against fish , chamberlain of london . james waggoner was arrested in london , upon a plaint entered in the court of the maior in debt , at the suit of cornelius fish chamberlain of the sayd city , and the defendant brought a writ of priviledge ; returnable here in the common pleas , and upon the return it appears , that in the city of london there is a custome , that no forrainer shal keep any shop , nor use any trade in london , and also there is another custome , that the maior , aldermen , and commonalty ( if any custome be defective ) may supply remidy for that , and if any new thing happen , that they may provide apt remedy for that , so if it be congruae & bon● fidei consuetudo rationi consentiae & pro communi utilitate regis , civium & omnium aliorum ibidem confluentium , and by act of parliament made r. . all their customes were confirmed , and ed. . the king by his letters patents granted that they might make by-laws , and that these letters patents were also confirmed by act of parliament , and for the usage certified , that in ed. . and . h. . were severall acts of common councell , made for inhibiting forrayners to hold any open shop , or shops or lettice , and penalty imposed for that , and that after , and shewed ▪ the day in certain was an act of common counsell , made by the mayor , aldermen , and commonalty : and for that it was enacted , that no forrayner should use any trade , mistery or occupation , within the said city , nor keep any shop there for retayling , upon payn of five pound , and gives power to the chamberlain of london for the time being to sue for that by action , &c. in the court of the mayor , in which no essoyn nor wager of law shall be allowed , and the said penalty shall be the one halfe to the use of the said chamberlain , and the other half to the poor of saint bartholomewes hospitall : and that the defendant held a shop and used the mistery of making of candles the seventh day of october last , and for that the plaintiff the ninth day of the same month then next insuing , levied the said plaint : and upon this the defendant was arrested , and this was the cause of the taking and detaining , &c. and upon argument at the bar by serjeant harris the younger for the defendant , and hutton for the plaintiff , and upon sollemne arguments by all the justices , coke , walmesley , warburton , danyell , and foster , it was agreed : that the defendant shall be delivered , and not remanded : and the case was devided in to five parts . the first the custome . secondly , the confirmation of that by act of parliament . thirdly , the grant of the king , and the confirmation of that by act of parliament . fourthly , the usage and making of acts of common councell according to this . fiftly , the act of common councell upon which the action is brought , and upon which the defendant was arrested . and to the first , which is the custome , it was also said , that this consists upon three parts : that is , first if any custome be difficult . secondly , if it be defective . thirdly , if aliquid de novo emergit , the mayor , aldermen , and commonalty : possunt opponere remedium , and that there are foure incidents to that remedy . first it ought to be congruum retione . secondly , 〈◊〉 one fidei consonum . thirdly , consentaneum rationi . fourthly , pro communi utillitate regis , civium & comodum aliorum ibidem confluentium : but all the question was upon the remedy , for it was agreed that the custome shall be good : but it was doubted by foster and danyell that there was no good returne , for it was but as recyted ; and it was not averred and positively said , that there was such a custome , and to prove that the case of h. . was cited , where in debt upon an obligation , the defendant demands oyer , and upon the view saith , that it appeares by the said obligation , that two others were joyntly bound with him not named , judgement of the writ , and . ed. . where it was pleaded , as it appeares by the letters patents of one king , and in . h. . in returne of a sheriff : but coke answered and took a difference between returne upon a writ of priviledge , and upon which no issue may be joyned , nor demurrer , and that it is but for an informer of the court , and other pleads : and for this it seemes to him , that it is good as to that , and he conceived that by the grant of the king the custome is destroied , for the king by his grant cannot add nor diminish any thing of the custome , no more then of prescription , and exceptance of grant shall be extinguishment of one as well as of the other , as it appeares by . h. , . h. . . . h. . b. prescription , r , . but to this the lord coke gave no answer , and for that it seemes they were no grants , but confirmation rather of customes , and they further denied that the customes are confirmed by the statute of . r. . for this is only for the confirmation of magna charta , and of all former statutes , and of charta de foresta , and the liliberties of the holy church , and there is not any mention of the customes of london , but to this the lord coke answered , that they ought to credit their returne , and for that it seemes , that it is a private act , and they ought to adjudge of that as it is made , as . h. . . and if it be false the party greived may have an action upon the case , so it was agreed that the custome , that no forrainer shall hold any shop , nor sell in any shop by retayl , and that they may make by-lawes , for the ordering of their ancient customes , are good customes without any confirmation by act of parliament , or grant of the king or otherwise : and if any thing happen de novo , that they can apponere remedium with the restrictions aforesaid , for the lord coke saith that london is antiqua civitas , and was of great fame and reckoning , amongst the most ancient cities , for it was said by anianus marcellinus which wrote . yeares past , that london was then opidum vetustum , and cornelius tacitus in vita neronis saith , that then there was under the romans government , there was here negotiorum copia , & commercia maximorum celebris , and he well knew for he was here seven years , and married the daughter of agricola , who was ancient guilda mercatoria , and for that it was well governed and continued in good order , for vbi non est ordo , ibi est infirmium & sempiternus horror & confusio , and gilda is a saxon word , and is the same for fraternitas , and northfolk and diverse other places in the country the name continued , but this is another sence , for gyld fignisies to pay , and for that it is sometime demanded if a man inhabite in a place gildable or within franchise , and the place gildable is subject to scot and lot , and all other charges , but the franchises are places exempt , but no person which is of a gyld or fraternity , may be exempted not by the grant of the king nor otherwise , but shall be subject to all the charges of the gyld , and fraternity , and the king cannot make any man free of their guyld when that is created , for there are but three waies to make a man free of that . first , by birth which is the most eldest . secondly , by service which is of merits . thirdly , by redemption which is power which only remaines in the maior , and the court of aldermen , in this case in london , and such gyld can never have beginning but by grant , but by prescription , as the custome of gavelkinde , that a man may devise his lands , or that the land shall discend to the youngest son , and that the king cannot make , any stranger free of such gyld or fraternity appears in rotulo patentium , ed. . where the king by his letters patents granted to one iohn faulchon , that he should be frank and free of the city of london , and that he should keep an apothecaries shop there , but the patentee could not have his freedome by this grant , and for that the king wrote his letters to the maior and aldermen , and requested them to make the sayd faulchon free of the sayd city , and upon that it was done accordingly , but not upon the grant , and so it was adjudged in darcies case . eliz. trinity , that if the king grant to one the sole making of cards in england , and that none shall bring any cards into england to be sold but the patentee , and it was adjudged that though none may may have park or warren , and such other matters of pleasure without the kings grant , and though that playing with cardes be but a matter of pleasure , yet the making of them is a matter of profit , and the bringing of them into england is a matter of trade , and the inhibition of that is hinderance of trade , and makes a monopoly , that the grant was voyd , and ed. . . iohn of sudfords case , where the case was , a free-holder levied a fold upon his soyl , and freehold of his own , and the defendant spoyled it , and broke it , aed upon that the plaintif brings a writ of trespass ; the defendant justifies that he was lord of the town , and there had been a usage there , and had been of time out of memory , &c. that no man of the same town ought to levy a fold without the agreement and leave of the lord : and for that that the plaintif had done it , the defendant pulled it down as wel to him it was lawfull , and it seems a good custome , and with this agrees ed. . iohn de hayes case , and and eliz. dyer . . prescription , by the maior sherif , and citizens of york ; goods forraine bought and forrain sold shall be forfeited , and that he may seise them it was adjuged a good prescription , but the king by his letters patents , cannot give such power to them . and coke was cleerly of opinion , that the case was not within the statute of ed. . chapt . . ed. . ed. . . and it was agreed by them all , that a merchant or any other man may sell goods in grosse , as he may sell a hundred tun of wine , or peices of cloath , and one tun of wine to one man , or a peice of cloath to one man , and another to another man , till he hath sold all , that this was not retailing , but they cannot sell by the yard or keep a shop , but it was also agreed that some goods a man might sell as well in their market , if he do not keep a shop here without any offence , and it was objected that this by-law was not good , for that it was for private good , and also the penalty which was to be inflicted was too great . for first the maior , aldermen , and citizens , make the law , the suit for the penalty ought to be before the mayor , and the maior and citizens ought to have part of the penalty , so that the mayor shall be judg in his own cause , which also was one of the reasons of the judgment in the chamberlain of londons case . coke for that that the penalty was so small , that is a penny for every cloth which shall be sold in blackwell hall , and this was for publick good , for here shall be search if it were good and merchantable , but it was agreed by all , that every town may make a by-law , which is pro bono publico , without any prescription or custome , and this shall be good , and being made by the greater part shall bind the residue , but if it be for private good , as for the ordering of the common or such like , shall not be good to bind any man without his assent , without speciall custome , according to the judgements in the chamberlaine of londons case , and clarkes case . of coke in his cases of by-lawes : but coke is cleer that the remedy , that is , the by-law was good and agreeing to the custome in every point , and that the penalty was fit and good , and for quantity and quality , and that to the quantity he agreed , that they could not inflict confiscation of goods nor imprisonment , but may inflict pecuniary punishment , as it appeares by clarkes case , and the action may be brought for that , so that for the quality it was good : and so as to the quantity which was secundum quantitatem dilicti , for he conceived it was a greater offence , to hold a private shop then publick , for this is not in view nor subject to search & reformation , as wel as if it were publick , and for an old act of common councel , he which keeps a publick shop shall forfeit ten shillings , and clam delinquens punietur magis quam palam , & now the ounce of silver is increased in value , for it is worth five shillings four pence , and then it was worth but three shillings four pence , and so for quantity and quality et congruum & ratione causarum : and it seems to him that it is not bona fide , that a forrainer should hold a private shop , but dissentaneum , for london is a market overt , every day in the weeke , but sunday , as it appears by h. . . and in dunstable , the prior brought an action against a butcher , for that that dunstable was an ancient town , and that this was a market overt two dayes in the week , and the defendant sold flesh in an inward roome , the defendant pleads custome to warrant that , and adjudged that it was not good , for the usage of trade in such corners is not , bonae fidei consonant , and after he pleaded that he sold the flesh in an open shop in the market , and this was allowed to be a good plea , and if it be so in dunstable , a fortiori , it shall be so in london , and for the same reason also it shall not be rationi consentaneum , to hold such inward shops , and also it is for communi utilitate , that is , of the citizens of the king , and of all others , that forrainers shall not hold any shops in london , for it appears by the return that forrainers shall not be subject to scot and lot in london , and shall not be officers which are matters of great charge , so that if it shall be so they should be preferred before free men , and without question it is discomodious for the citizens , that any forrainer should use any trade here , and it would be a distruction to citizens , that a forrainer should not be subject to their charges , and yet should take benefit of the trade within the city . secondly , and for the benefit of others that strangers should not be received to use any trade within the city , for this is the cause of depopulation , depradation , and distruction in all other townes and burroughs in england , which is prejudice to all others . thirdly , it is prejudiciall to the king , that such a company of inhabitants should be resident in london , which is camera regis , for this is the cause of iufection of the aire and sicknesse , so that the king and all the state is prejudiced by it , but the sole doubt which was conceived by coke , was for that that it doth not appear by the return , that the defendant had used the trade of tallow chandlor nor sold any candles , but only that he kept a shop , and used the mistery of making candles , but if the return had been that he used the trade of tallow chandlor , this had been good , for that implies tantamount , for that had been , that he had sold , for trade is in tradendo , which is to deliver over , and the intent of the act is not that hee shall be punished for making of candles , if hee do not sell them , for the sale is the wrong , and so the servant of every noble man or other which makes candles or other thing for his master , or for his own use , should be within the penalty of the act , and with this agreed foster and daniel , and for this cause only it was resolved that he should be delivered and not remanded . hillary . jacobi , in the common bench. cholke against peter . the case was this , the lord rich being seised of the chase of hatfeild , granted and sold to sir thomas barrington knight , and his heires , all the wood growing , and to grow upon a part of that , and excepted the soyl , and further that he might inclose every sixteen acres of that , and this to hold in severall for the prservation of the spring , according to other statutes of the realm , and this grant was confirmed by a private act of parliament , and that the grantee might hold it in severall without suit of the kings officers , with a saving of the right of all strangers , and a commoner put in his beasts to take his common in one parcell of that which was inclosed , against whom the grantee , brought an action of trespass , and in this the only question was , if this grantee of the trees , which had not any interest in the soyl , might inclose against a commoner by the statute of . ed. . chap. . was the question , for it was agreed , that if a man grant trees growing and to grow , to one and his heires , and except the soyl , the grantee hath fee-simple in the trees , but hath nothing in the soyl , according to the . h. . and . h. . . ives case , . coke . so if a man make a feoffment of land except the woods , all woods are except by that , and if woods be cut , and after grow againe in the same place , this is also excepted ; but if woods after grow in another place this shall not be excepted , for it was no wood in esse at the time of the feoffment , so if a man grants to another to dig coles in his soyl , this is but to take profit , and the soyl doth not passe , as it is agreed in . eliz. dyer . and it was said by hutton serjeant that he had seen an ejectione firme brought upon a lease of vsura terra : but it was agreed by coke cheife justice and foster , that the statute of . ed. . chap. . was repealed by the statute of . h. . for this is the negative , and for that is repeal of a former statute , but if the last had been in the affirmative otherwise it should be , and it was also agreed that this was not within the statute of . h. . for that appoints of what age the wood shall be when it shall be inclosed , and by this recompence is given to the commoner ; but here it is not averred by pleading of what age this wood was which was inclosed , and for that it was adjudged that the action is not maintainable against the commoner , see pasche . jacobi for another argument at the bar , and also by the judges . hillary . jacobi , . in the common bench. vivion against wilde . a man was bound in an obligation to another with condition , to stand to , abide , and performe the award of two arbitrators , and before the award , by his writing the obligor revoked the authority of one of the arbitrators : and it was agreed by all , that this obligation is become single without condiion , and yet it was not pleaded that the arbitrator had notice of the revocation before the award made : and yet for that it was pleaded , that revocavit , it was agreed that that implies notice , for without notice it is no revocation : but it was agreed that if a man submit himselfe to the award of another , and after he revokes his authority : but before the arbitrator had notice of that he makes the award , the award is good and shall be performed ; so if a man make a feoffment and letter of attorney to make livery : and before livery made he revokes the power of the attorney : but before notice the attorney makes livery , this is good , but if the feoffor makes a lease or feoffment to another before the livery made by the other , this is a countermand in law , and shall be good without notice , for fortior est dispositio legis quam hominis : but where a man makes actuall revocation of the authority , and before notice the other executes his authority , and in pleading the other pleades ; quod revocavit , the other party may reply , quod non revocavit , and give in evidence that he hath no notice of that before the execution of his authority , and this is good , for without notice it is no revocation , where revocation is the act of the party . the case is entred trinity . jacobi rotulo . vivion against wild. hillary . jacobi , . in the common bench. smallman against powys . a man made a lease for life rendring rent , and after the lessor by indenture in consideration of fifty pound , deviseth and granteth the reversion , to have from the day of the date for . yeares rendring a rent also , which was lesse then the first rent , and the grantee of the reversion destraines for the rent reserved upon the lease for life being behind : and the sole question in this case was , if the reversion shall passe without attornment , and it was said , that in all cases where a use may be raised by the common law , and that it shall be performed by order of chancery , that in these cases , the use shall be executed by the statute of . h. . of uses ; and one case was cyted by harris serjeant . and . eliz. where the brother was tenant in tayl , the remainder to his sister in tayl , the brother by deed which was indented in parchment , but made in the first person , and no mention of indenting in the deed , and the deed was inrolled with●… three moneths , and after livery and seisin was made , and it w●… adjudged that the deed enures as a bargaine and sale , and that nothing passes by the feoffment , so that it was no discontinuance , but that the sister might enter after the death of her brother without issue . coke cheife justice said , that it was a good bargain and sale , though that the words bargain and sell were not in the deed , but he conceived if a letter of attorney be incerted in the deed , so that it may appear that the intent of the parties is , that it should not enure as a bargain and sale , but as a feoffment , there it is otherwise , so if a man covenants to stand seised to a use , if it be in consideration of money , and the deed is inrolled : there this shall enure well , as bargain and sale , as it was adjudged in bedels case . coke . a. but the statute of . h. . of inrollments doth not extend to a tearme , for the words of the statute are , that no freehold shall passe , &c. but it seemes in the principall case , that the statute of uses , executes the use which is raised by this grant , and that the grantor shall stand seised , &c. and all the justices insisted strongly upon the limitation of the estate , from the day of the date of the grant and the reservation of the rent immediatly , and upon this concluded , that it was the intent of the parties that the grantee should have the rent reserved upon the first lease ; and should pay the rent reserved upon his estate , and that when words of diverse natures are incerted in one conveiance , the grantee hath election to use which of them that he will , as it appeares by sir rowland haywards case , and by danyel , if a man makes a bargain and sale in english , and makes livery , secundum forma chartae , this shall not be good : but if it be in latine otherwise it is , for this word vendo is compounded of do , and it is an apt word for sur. that livery might be made : and agreed all that the reversion passes well without attornment , and that these words demise and grant shall be taken and enure to a bargain and sale , and judgement was given accordingly . a man made a lease for yeares , to two if they lived so long , and it was resolved by the court , that this determines by the death of one of them , according to the resolution in bradwells case . coke . a. and judgement was given accordingly , and there the case of trupenny was recited , which was this ; lands was let to one for one and twenty yeares , if the husband and wife , and the issue male of their bodies so long live , and it was there adjudged , that the lease doth not determine , during the lives of any of them , for in this disjunctive , it is referred to an inti●e sentence , and is as much as if he had sayd , if the husband or the wife , or the issue of their bodies so long live . hillary . jacobi . in the common bench. borough of yarmouth . the king john by his letters patents granted that the burrough of yarmouth should be incorporated , and the grant is made burgensibus without naming of their successors , and also he granted , burgensibus teneri placita coram balivis , and in pleading it was not averred that there were bailiffs there , and it was objected that the burrough cannot be incorporated , but men which inhabite in that , but to that it was resolved that the grant is good , and the lord coke sayd , that he had seen many old grants , to the citizens of such a town and good , and so that the grant burgensibus , that the b●rrough should be incorporated , being an old grant should have favorable construction , but the doubt was , for that that it was not averred that there were bailiffs of yarmouth ; and if a grant to hold pleas , and doth not say before whom , the grant is voyd , according to ed. . h. . ed. . and for that it was adjourned : but the opinion of all the court was that the grant made burgensibus was good without naming of their successors , as in the case of grant civibus , without more . note that executors or administrators shall not finde speciall bail for the debt of the testator , though that the debt be for a great sum as three thousand pound or more , for it is not their debt , nor his body shall not be lyable to execution for that . ed. . suit was commenced , hanging another writ , it is a good plea , though that the writ was returnable in the common bench , and the last suit was begun in a base court , but if so be , and doth not appeare to this court , that the plaintiff begun suit in a base court , for the same debt , for which the suit is here begun attachment shall be awarded , see h. . h. . but this ought to appear to the court by affidavit , &c. hillary jacobi . in the common bench. chapman against pendleton . in second deliverance , the case was this , a man seised of a house and fifty acres of land held by rent , fealty , and harriot service , enfeoffs the lord of three acres parcell of the land , and after infeoffs the plaintiff in this action of three other acres , and upon this rhe sole question was , if by this feoffment to the lord of parcell harriot service is extinct or not . harris serjeant conceived that the harriot remaines , for he sayd that it is reserved to the reversion of the tenure , but it is not as anuall service , but casuall , and it is not like to rectify , for that it is incident to every service , and by ed. . it is no part of the service but improvement of the service : and bracton in his tractate de relevijs booke , . saith , that est alia prestatio vocata harriot &c. que magis fit de gratia quam ex jure , and it is not like to a releife , see the booke at large , and he agreed that if the tenant had made fifty severall feoffments to fifty severall men , that every of them shall pay a severall harriot , as it appears by bruertons case , coke . a , . ed. . harriot . ed. avowry . 〈◊〉 ed. . ibidim . ed. . avowry . ed , . . a , assise . . ed. . . . h. . tenures . but he grounded his argument principally upon littleton . . where it is sayd , that the reason why homage and fealty remaine , if the lord purchase part of the tenancy is for that that they are of annuall services , and it seemed to him , that littleton is grounded upon ed. . . extinguishment . ed . . . ed , , b. apportionment last case , which accords the reason , and upon this he concluded , that for that that the harriot is not annuall , it shall not be extinct by the feoffment but remaines , but he agreed if a man makes a lease for years rendring rent , and parcell of the land comes to the lord , the rent shall be apportioned if it be by lawfull means , as it appears by r. . f. quid juris clamat . plesingtons case , and h. . dyer . . rushdens case , by which , &c. nicholls serjeant , that it hath been agreed that it is intire service , and that then he concluded upon that that it shall be of the nature of other intire services , as it apperrs by ed. . avowry . and ed. , f. harriot . . ed. . avowry . and he agreed that in the case of littleton the homage and fealty remain , and the escuage shall be apportioned , but this is not for the reason alledged in littleton , that is , for that that they are not annuall services , but for that that the homage is incident to every knights service , and as the lord coke sayd , fealty is incident to every service in generall , and the tenant shall make oath to be faithfull and loyall to his lord for all the tenements which he holds of him , and the reason for which the escuage shall be apportioned , is for that that it is but as a penalty which is inflicted upon the tenant for that that he did not make his services , as it appears by the pleading of it , and shall be apportioned according to the assesment by parliament , and by ed . it appears that this purchase by the lord , is as a release , and if the lord release his services in part , this extincts the services in all , and he sayd there is no difference where an intire service is to be payd , every third or fourth year , and where it is to be payd every year as to that purpose , and yet in one case it is annuall , and in the other it is casuall , and yet in both cases if the lord purchase parcell of the land of the tenant , all the intire services shall be extinct and gone , though that they are to be performed every third or fourth year , by which , &c. foster justice , that the harriot is entire service , and for that though that it be not annuall , it shall be extinct by purchase of parcell of the tenancy by the lord , as if a man makes a feoffment with warranty , and takes back an estate of part , the warranty is extinct , as it appears by the . of assise ; so if a man hold his land by the service to repaire parcell of the fence of a park of the lords , and the lord purchase parcell of the tenancy , the tenure is extinct , as it appears by ed. . and it is agreed in the h. , in kellawaies reports by frowick , that there is no difference between harriot and releife , and releife shall be extinct , and so he concluded that the harriot is extinct . danyell justice accordingly ; and he said that this purchase shall be as strong as release : and if the lord hath released the service intire for part , it shall be extinct for all , and if tenant holds by suite to the court of the lord , and the lord purchase parcell of the tenancy the suit is extinct , as it appeares by . h. . and fitz. na. bre. and so concluded that the harriot service is extinct by the purchase aforesayd . warburton accordingly : and saith that in littletons case , the homage and fealty shall remain , for they are personall services , and for that shall remaine intire , and of rent shall be an apportionment by the statute of westminster . de quia emptores terrarum : but for other intire services by the purchase of the lord , be they annuall or casuall , and they are extinct , and , edward , was a suite for a hawke , which was kept back twenty yeares , and so for suit if the tenants make a feoffment to diverse , they shall make but one suit , but they all shall make contribution to the suit , but if the lord purchase parcell , he cannot make contribution : and though that the homage and fealty are personall services , the horse and hawke are of the nature of land , so the harriot is of his goods , and if the tenant hath no goods , the lord shall loose it , and for that he concluded as above . walmesley accordingly : and he said , if a tenant hold by intire services of two lords , and one purchase parcell of the tenancy , all the intire services shall not be extinct , but the other lord which did not purchase , shall have them , for res inter alios acta , nemini nocere debeat : to which coke cheife justice agreed , and he said if harriot custome be due , peradventure it shall not be extinct by purchase of parcell of the tenancy , for that is personall , and it is not issuing out of land , but for intire services , which are issuing out of land , he said there is no difference betwixt annuall services and casuall services which are intire , and so he concluded , as above . coke cheife justice accordingly , and he said there is no difference between annuall intire services and casuall , so that they are services to be paid at the death or alteration of every tenant , or otherwise , but he said there is no doubt , but that rent service shall be apportioned , though that the lord purchase parcell , be that in the kings case , or of a common person , and this by the common law without the aid of any statute , for there is not any statute that shall aid that , if it be not remedied by the common law , and he said that some intire services may multiply , as if a man holds by payment of a payre of gilt spurrs , or of a hawke , or a horse , or others such like , and makes a feoffment of parcell , the feoffee shall hold by the same intire services : but if the tenant hold by personall services , as to cover the table of his lord , or to be his carver , or sewer at such a feast , or such like , these personall services cannot multiply , if the tenant makes a feoffment of part , for by this the lord may be prejudiced , for peradventure at his house he will not include them , but he may distrain every of them to make the service : and he saith the reason for which knights service shall be apportioned , is for that it is for the publick good , and for the good of the common wealth ▪ but so are not the other personall services , and in the principall case he conceives , that if the tenant had made a feoffment first to a stranger , and after the stranger had infeoffed the lord , that by that all the intire service shall not be extinct , for by the feoffment of the estranger , was severence of the services , and he holds by a harriot as well as his feoffor , and for that nothing shall be extinct , but the harriot due by that parcell , of which the estranger was infeoffed ; and he agreed with walmesley , that a harriot custome shall not be extinct , where the custome is that every tenant shall pay a harriot , for there it is paid in respect that he is tenant , and custome shall not be drowned by unity of tenancy and signiory : and for that he concluded that the harriot for that , that it was intire service though that it were casuall and not annuall , that yet it shall be extinct , and judgement was given accordingly . hillary . jacobi , . in the common bench. michelborne against michelborne . upon a motion made for consultation upon prohibition awarded : it was said by the lord coke , that no subject of the king , may trade with any realme of infidells , without licence of the king , and the reason of that is , that he may resinquish the catholick faith and adhere to infidelisme , and he said that he hath seen a licence made in the time of ed. . where the king recited that he having speciall trust and confidence , that his subject will not decline from his faith and religion , licenced him ut supra ) and this did rise , upon the recitall of a licence made to a merchant to trade into the east indies . hillary . jacobi , . in the common bench. reade against fisher . in debt the defendant exhibits his suit in the court of requests , and there the plaintiff in that court denied , that the debt was paid , and the court of request awarded an injunction , and upon information of that , this court awarded a prohibition to inhibit the suit there . hillary . jacobi , . in the common bench. mors against webbe . in replevin the case was this ; a man was seised of two virgates of land , and prescribed that he and his ancestors , and all those whose estates he hath in the said virgates of land , have used to have common in the feilds , &c. that is , when the feilds are fallow all the yeare , and when they are sown with corn or otherwise severall , when the crop is mowed and removed , for two horses , four other beastes , and a hundred and twenty sheep , as appertaining to the said two virgates of land : the defendant traverseth the prescription , and upon this they are at issue , and the jury found that there is such prescription : but further they say , that the plaintiff made a lease of six acres parcell of the said two virgates of land in one of the feilds of , &c. with the common of that thereunto belonging for the tearme of ten years , and the beastes for which the replevin was brought , were in another feild of , &c. and if the prescription be suspended or remaines , they praied the advise of the court , and it was agreed that common appendant and appurtenant was all one to the severance , for if such a commoner grant parcell of that land to which the common is appurtenant , or appendant , the grantee shall have common , pro rata , but if a commoner purchase parcell of the land , in which he hath common appurtenant , that this extincts all his common : and it was agreed that common may be appendant to a carve of land , as it appeares by the ed. . . and . assise . as to a mannor , but this shall he intended to the demesnes of the mannor , and so a carve of land consists of land , meadow , and pasture , as it appeares by tirringhams case . coke . b. and common appendant shall not be by prescription , for then the plea shall be intended double , for it is of common right , as it appeares by the statute of morton chap. . and the common is mutuall , for the lord hath right of common in the lands of the tenant , and the tenant in the lands of the lord : and it was urged by nicholls serjeant , that the common shall be apportioned as if it were rent , and that the lessee shall have common for his lease , and then the lessor hath no common appurtenant or appendant to the two virgats of land , and for that the prescription was not good . coke cheife justice , if it had been pleaded , that he had used to have common for the said beasts levant and couchant upon the said land , there had been no question but it should be apportioned , for the beastes are levant and couchant upon every part , as one day upon one part , and another day upon another part , and for that extinguishment or suspention of part shall be of all , as if a man makes a leafe of two acres of land , rendring rent , and after bargaines and sells the reversion of one acre , there shall be an apportionment of the rent , as well as if it had been granted and attornment : and he agreed that if a man have common appurtenant , and purchase parcell of the land in which he hath common , all the common is extinct , but in this case common appendant shall be apportioned for the benefit of the plow , for as it is appendant to land , hyde , and gain : and in the principall case there was common appendant , for it was pleaded to be belonging to two virgats of land , and for commonable beastes : and he conceived also that the prescription being as appertaining to such land , that this shall be all one , as if it had been said levant and couchant , for when they are appurtenant , they shall be intended to plow , manure , compester , and feed upon the land : and also he conceived that the right of common remaines in the lessor , and for that he may prescribe , for after the end of the tearme shall be returned , and in the intermin he may bargain and sell and the vendee shall have it , and shall have common for his portion . and walmesley justice agreed to that , and that during the tearme the lessor shall be excluded of his common for his proportion . foster justice agreed , and that the possession of the lessee is the possession of the lessor , but he conceived when the lessor grants to the lessee six acres of land in such a feild where the land lies , and then the beasts were taken in another feild : and so they agreed for the matter in law , and also that the pleading was ill , and so confesse and avoid the prescription : but upon the traverse as it is pleaded , the jury shall not take benefit of it , and judgement was given accordingly . termino pasche . jacobi in the common bench. thou art a jury man , and by thy false and subtill means hast been the death and overthrow of a hundred men , for which words action upon the case for slander was brought , and it seemed to coke cheife justice that it did well lye , if it be averred that he was a jury man , and so of judge and justice , for sermo relatus ad personam intelligo debet de qualitate persone , as bracton saith , and in the like action brought by butler , it was not averred , that he was a justice of peace , and resolved that an action upon the case doth not lye . but walmesley justice conceived that an action doth not lye , for one juror only doth not give the verdict , but he is joyned with his companions , and it is not to be intended that he could draw his companions to give verdict against the truth , and false and subtill means are very generall . warburton justice agreed with coke , and conceived that the action well lies , being averred that he was a jury man , as if one calls another bankrupt action well lies if it be alledged that the plaintiff was a tradesman , and it is common speaking that one is a leader of the jurors , and a man may presume that other jurors will give verdict , and may take upon him the knowledge of the act. walmesley conceived that the action did not lye , for that the words are a hundred men , which is impossible , and for that no man will give any credit to it , and for that it is no slander , and for that action doth not lye , no more then if he had sayd that he had kild a thousand men , but coke , warburton , daniell , and foster , agreed that the number is not materiall , for by the words his malice appears , and for that they conceived that the action doth well lye . pasch . . jacobi . in the common bench. denis against more . anthony denis plaintif in replevin , william more defendant , the case was this , two joynt lessees for life were , the remainder or reversion in fee being in another person , he in reversion grants his reversion , habendum , the aforesaid reversion , after the death , surrender , or forfeiture of the tenant for life , it hapneth , that the lease determines , for the life of the grantee , and remains to another for life , and resolved that this shall be a good grant of the reversion to the first effect of possession , after the deaths of the tenants for life , according to the of eliza. dier . . and it shall not be intended to passe a future interest , as if it were void of the other party , and so was the opinion of all the court , see bucklers case . coke . a. and tookers case . coke . upon a fine the first proclamation was made in trinity tearm . jacobi . and the second in michaelmas tearm . jacobi . and the third in hillary tearm . jacobi , where it should be in hillary tearm . jacobi . and the fourth and fifth in easter tearm . jacobi . and this was agreed to be a palpable errrour , for the fourth proclamation was not entered at all , and the fifth was entered in hillary tearm . jacobi , where it should have been in hillary tearm jacobi , and it shall not be amended , for that it was of another tearm , and the court conceived that this was a forfeiture of the office of the chirographer , for it was an abusing of it , and the statute of . h. . . and westminster . are that judgement given in the kings court shall stand , untill they be reversed by errour . a man is bound in an obligation dated the third of january , and by release dated the second day of the sayd moneth of january , releases all actions , &c. from the beginning of the world untill this present day , and delivered the release after he had delivered the obligation . and coke cheife justice conceived , that a release of all actions untill the date , shall not discharge duty after , but a release , vsque confectionem presentium , that discharges duties after the date , and before the delivery : but he conceived that the day of this present time shall be the day of the date , and it shall not be averred that it was delivered . years after , and it shall not wait upon the delivery of the deed. a writ of dower was brought by frances fulgham against serjeant harris the younger in this manner , precipe , &c. quod , &c. frances fulgham , widdow , where the form in the register ( que fuit uxor ) and not widdow , and the words of the writ are , rationabilem detem tenementorum que fuerunt fran. fulgham quondam viri su● , and yet it was resolved to be errour , see the register , and yet it doth not vary in substance , and ed. . in re nisi sunt , all one , yet for that the forme in the register is otherwise : the justices would not amend it . john warren plaintiff in trespasse , and ejectione firme against cicely spackman , it was resolved that the admittance of a copy-holder for life was sufficient for him in remainder . in a writ of dower by mistris fulgham upon ne vnques couple &c. pleaded , a writ was awarded to the arch-bishop ( in the time of the vacation of the bishoprick of lychfeild and coventry ) who returned that he had a delegate , which made a commission to babington chancellor of the said diocesse , to make inquiry , and certificate of the said matter , which have certified that they were lawfully coupled in lawfull matrimony : and adjudged without question , that the return was not good , for the arch-bishop himselfe ought to execute it , and delegata potesta● non potest delegari , and for that it was ordered that he should amend her certificate . see the statute of ed. . that an arrest , eundo & rediundo , from celebrating divine service , and it seemed to the justices , that such arrest is not lawfull , for he ought to be priviledged rather then a man which comes to any court , to procecute or defend any suit here . pasche ▪ . jacobi , . in the exchequer . the duke of lenox case . in trespasse the case was this , the king by his letters patents created the duke of lenox alneger , and he made his deputy : and the duke by the said letters patents of the king , was to measure all clothes , and to have so much for every peece , and to search and to view that if it be well and sufficiently made or not , and he made his deputy , which offers to measure , search , and view , certain parcell of worsted , and demanded the duty due to the alneger for that , and for that , that the owner refused to pay it , he seised certain peeces of worsted , and kept them , upon which this action was brought . and haughton serjeant for the defendant , conceived that the sole question rests upon these letters patents of the king , and for that he would first consider . first if these duties of subsidies and ausnage are due by the common law , and if they are not due by the common law , then if they are due by statute law : and if they be due , neither by the common law , nor statute law ; then if the king by his letters patents may grant it . and to the first he said : that subsidy is ayd or help : and there are two manners of ayd , one which is inheritance in the king , as ayd to make his son knight , or to marry his daughter , and others which are given by grant of others , and these are not inheritances in the king ; and these duties were not demandable by the common law , nor by custome : and this appeares by the . ed. . . where any prises were demanded which were due by the common law , and some which were not due , and subsidie for woolls were not due by the common law , but it was granted to the king and is now due , but this is by grant , and not by the common law , and in the . ed. . a statute was made for the king for his subsidy for woolles , what part he should have , which part was given to him in quantity ; and in time of h. . a statute was made by which subsidy was given to him during his life , and , ed. . subsidy was granted for three yeares , and after should not be any subsidy paied , as appeares by . ed. . and if subsidie were not due by the common law for woolles , then may it be concluded , that it was not due for clothes , for woolles grow without mans labour , and the . h. . and . h. . the king makes a grant of alnage of clothes , and a writ is awarded to the mayor and sheriffs of london , to give possession to the patentee , which returnes the writ , that the office was not granted before this time : and the statute of . ed. . was the first statute that gave profit to the king for clothes : but he granted that the office of alneger was of ancient times , and an ancient office , but it was no office of profit , but an office of justice and right ; and no fee was due for the exercising of it , and that . ed. , was a grant of the office of the alneger , and . h. . was a grant of the office of alneger for canvas , but it doth not appeare by any account , that the king had any profit for the alnage it selfe , or upon the said grants , either before or after , and allowing that there were accounts for cloth , yet it doth not appeare that there were any accounts for worsteds , the statute of . eliz. gives subsidy of four pence for every broad cloth , so that the statute made expresse mention of broad cloth , but there was not any mention of worsteds , and this statute shall not be taken by equity , though that the statute of . r. . . for escapes by the warden of the fleet , being a penall statute , yet for that , that it was for a generall mischeife , shall be taken by equity , as it appeares by platts case in the comment : so the statute of . ed . chap. . provideth that where debt is brought against diverse executors , that they shall have but one essoyn , and the statute mentions execurors only , yet administrators are taken within the equity of this statute , as it appeares by , h. . yet in this case at the bar , the statute of . eliz. was not for the remedy of a mischeife , but is a grant to the king , and grant of one thing cannot be grant of another thing , as if the king pardon an offence , another offence cannot be pardoned by this : as it appeares by the arch-bishop of canterburies case , . coke , where the statute of . ed. . by which diverse chantryes were granted to the king , it shall be intended a grant within the statute of . h. . of monastries which was before : but further he said that the matter is insufficient to raise a duty to the king , for in vain is the property of any thing in one man if another man may charge it : and in this case the king cannot grant these clothes , and for that he cannot charge them , and the letters patents of the king are not sufficient only to charge the goods of any man , see the case of . h. . but he agreed that if the king grant a ferrey , and that every passenger shall pay for his passage four pence , this is good , for every man may chose whether he will passe by that or not : and none shall be constrained to passe by that , but grant of the king to one , that none shall bring in any cards into england but the patentee only is vord ; and it was adjudged in nicholls case in . eliz. that if any man offend in not repayring of a bridge , the king cannot pardon it , for the subjects of the king have interest in that , and further he saith , that the grant was against an expresse statute made in . ed. . . for this appoints that the alneger shall not take any fee , by which the grant of the sayd office shall be without fee , and this grant is with a fee , that is , so much for every cloth , he agreed that this is an affirmitive law , and for that it shall not bind the king generally , but when it is for determination of right or wrong , the king shall be bound by that , and the patent is grounded upon the statute of . eliz. or . ed. . . which are made for the breadth of clothes ; and here the patent hath not any respect to it , for if the peece be but of the breadth of a foote , if it be in length according to the statute , so much shall be payd for that as if it were a broad cloth , and for that there is not any equity in it , that the statute seemes to intend , for the charge ought to be correspendent to the quantity of the cloth , as . ed. . . avowry for distresse of sixteen oxen for nine pence rent , and adjudged that it was found outragious , and therefore he was amerced for taking of an excessive distresse , and so he demanded judgement for the plaintiff . dodridge the kings serjeant , that the question is if the alneger may meddle with this new kind of drapery and shall take fee for that , and it seemes to him that he may meddle with all things , which consists in measure , waying , and searching : and may exercise his office in this for necessity of merchandise , for common wealth cannot consist without commerce , and pecunia est rerum mensura , and provides to make recompence in value for every thing , as it is said by keble . h. . . b. and then to reduce all other things in certain , for it is the certain value of money , is known to be a direct meanes to know the quantity of all other things , and that is by waight and measure , &c. and for this for the necessity of commerce , there ought to be a publick officer , which shall have the care and charge that such things shall be well and duly made , for the profit and benefit of the common wealth , and this . officer is as ancient as there hath been any commerce within this realme , and he made illustration thereof by diverse rolls of the exchequer in time of h. . by which it appears , that then there were marts for cloth : and that then was an officer , to search , measure , and see the said clothes opened , for then was an officer made of purpose to measure and search the clothes , which were sold in a faire at worcester , by which rolls also it appeares , that there was an assise of breadth and length of clothes before any statute for that purpose , by the statute of magna charta , made . h. . chap. . it is provided that una mensura , and una latitudo pannorum tinctorum , russatorum , & haubergettarum , that is , duo ulne infra list as per totum regnum anglie , and ed. . amongst the rolls of the patents in the tower , it appears that the office of alneger was granted de omnibus pannis tam ultra mare quam infra mare : and . r , . was another grant of the office of alneger , and . r. . the king granted the office of alneger in ireland , and by the statute of . ed. . it is provided that the estretes by the warden of the alnage should be delivered into the exchequer to the treasurer of the exchequer , and . ed , . the office of alneger was granted to one j. griffin of all the clothes made beyond sea , till the . of ed. . by which the use appeares in the time of the raigne of king ed. . upon which records he observed , that the office of an alneger is an ancient office , and that he hath power to see , search , and measure , omnies pannas tam ultra marinas quam infra marinas , without any exception , and for that it cannot be denied , but that he ought to meddle with wollen clothes , and he ought to meddle with all for one selfe same end and purpose , that is to fasten a seale to them . secondly , that the law depends upon the art and invention of artists , then no law shall prevent more mischeifes , for there is no end of art and invention . and thirdly , and that in this individuo , for there is not any invention made of worsteds , till the time of ed. . for it was a new commodity , and then first invented , and after it was first invented , there was immediately an officer made for that , and for this it appears that ed. . nicholas shoverler was made generall alneger for that , and after that came wadlowes and sayes , and also an alneger was immediately made for them , by which it appears , that so soon as new stuff was invented by the artist that there was a new officer to search , and see that , and prevent that deceit should not be used in it , and then for the fee of the alneger , that is grounded upon a just law , which is the law of retrebution , for dignus est operarius mercede , and though it doth not appear by their patents , that they had taken any fee for the exercising of their sayd office , yet it appears by their accounts that they have had a fee for it , and if they have no fee of the king , then it follows that they ought to have a fee of the subject by common law , the office being for the publick good , and the patent is , upon which the duke shall have the sayd office as hitherto they have had it , and it appears by the of h. . . and the of h. . that the king may grant and annex fee to a necessary office to be taken of the subjects , but it was objected that the alneger had no fee , and if he had that , he was abridged of that by the statute of ed. . . where it is sayd that they shall be ready to make proofe ; when they should be required to measure , without taking any thing of the merchant , but this refers only to the maiors and bailiffs of towns , where such cloathes shall come , and not to the alneger , and that the statute of ed. . chapter . consists upon two parts . first , that clothiers may make cloth of what length and breadth that they will. the second , that no cloth shall be brought into england , wales , or scotland , but that which is made in them , and then if the clothiers have such liberty to make cloath of what length and breadth they will , then there is no need of alneger : as to that it was answered , that there was need of him to see and search the goodness of that , as well as the length and breadth , and also the statute of ed. . chap. . provides that all clothes vendable , which shall be sold whole cloathes in england , in whose hands soever they are , shall be measured by the alneger of the king , and the statute of ed. chapter . statute the first , provides that no cloathes shall be forfeited , though they be not of the same assise , but the alneger of the king shall measure the cloath and mark it , with such a mark , that a man may know how much that contains ; so for these statutes , and for the reasons aforesaid it appears , that it belongeth to the office of an alneger to survey , measure , and marke cloathes , as well by the common law , as by the statute law ; it was objected , first that the statute of ed. . limits and appoints that the alneger should measure broad cloath , and doth not make mention of any other cloathes , but broad cloathes , and for that it seems that he shall not meddle with any other cloathes , but it appears by diverse accounts , that he should meddle with wadlowes and sayes , and the statute of the r. . chap. . provides that none shall sell any cloath before that it be measured by the alneger of the king , and that none shall make any deceit in kerseys . the second objection that cloathes of lesser assise then halfe broad cloath , the alneger shall take nothing by the statute of ed. . this is intended of broad cloath which hath used to be sold , and these be in lenght above the broad cloath , and in breadth as kerseyes , and others were but as remnants which have not been used to be sold , no subsidye was due by the common law , for that is granted by the statute of eliz. and in this grant two things are to be considered . first , the statute of ed. . and the statute made at northampton , where it was petitioned to the parliament , that the king would remit the penalties , aad the kiug should have recompence for the loss , and for this the statute gives subsidy , this was no private gift , but a publick gift , and the reason of this was the retribution of his loss and the king payd for it , and that for this he should have a subsidy . secondly , woolls are the continuall treasure of the realm , and let them be of what nature they will they are called panui : and for that when the king hath a settled inheritance , it is no reason that the slight of an artist should prejudice the king : and it appeares by the statute of h. . . that was made to prevent the barrelling of clothes , and the making of them into garments , and the transporting of them beyond sea. and also the third reason is usage , for all other clothes pay subsidy , and there is no other law to charge them but the statute of ed. . . that this subsidy is setled in the king , and no devise of man may divest it , the statute of . ed. . and . ed. . set down and alter the length and breadth of clothes , and yet the custome remaines . the fifth objection that the statute doth not extend in equity to a thing which is not in rerum natura at the time of the making of the statute which is false position , for how can makers of statutes prevent all mischeifes , eaton and studdes case com. aristotle in ethicks liber . chap. . saith , that equitas est correctio legis generatim late , qua parte deficit . and bracton in his first book of new division ch. . saith , that equitas est rerum convenientia que in paribus causis , paria desiderat jura & omnia bene coequi paret & dicitur equitas quasi equalitas , and for that it is enacted by the statute of ed. . acton burnell for understanding of the statute , that if praysers of goods prayse them at too high a value , that they themselves shall have them at the same price at which they were praysed , and after another statute is made , which provides , that lands shall be extended upon a statute , which is taken to be within the statute of acton burnell , which was made before , and so it appears by littleton that the statute of glocester provides , that warranty by tenant by the curtesie shall not bind the heir without assets , and an estate tayl was not then created but it was afterwards created by the statute of westminster . which was made the of ed. . yet this warranty shall not binde the heire in tayl , and also two objections have been made against the patent . first , that it was against an expresse statute . secondly , that it did not observe any rate or proportion , proportionable to the quantity of the peece , to that he answered , that it is not against any statute , see , ed. . . . h , . . h. . . . and . phil. and mary : it is not against any of those , for those provides and ordaines , that there shall be wardens for the better performance of all things which are to be done by the alneger , and doth not deprive the king of any thing given to him by any former statute , but adds further care and deligence , and when there is a law which adds care and manner and forme to a former law : that doth not abridge and deprive the former law , of any thing given by that , and if the wardens do not do their office , yet that cannot prevent but that the alneger may do it , which to him belongeth , as in ed. . . for indentures taken in sheriffs turnes , which should be delivered by indenture to the justices , yet the justices may proceed , though they be not delivered by indenture , and so it is in . ed. . . the sheriff ought to array his pannell four daies before the taking of that , and adjudged that if he doth not , it shall be no error in . ed. . assise . and so the statute of . and . of ed. . provides that the mayor appoints to viewers and searchers , this doth not abridge the power of the alneger , for this is but an addition of greater care and diligence , and by the statute of . and . eliz. if upon a search they find any forfeyture , they shall have it , but if they do not find the alneger may find it , and then the king shall have it . and to the second he answered ; that true it is for every . of clothes , the alneger ought to have foure pence , for his fee , and though that some peeces of cloth are more broade then others , yet the lobour of the alneger to measure them is all one : so he concluded , and demanded judgement for the plaintiff . hillary . jacobi , . in the common bench. rutlage against clarke . in account the plaintiff declares , that the defendant hath received of his money by the hands of a stranger to give an account : the defendant pleades in bar , that he received to deliver over to a stranger , the which he hath done accordingly , without that , that he received it to make any of account otherwise then in this manner , and it was resolved that the plea in bar was good without traverse , for when he received the money , he is to deliver it over , or to give an account of it to the plaintiff , so that he is accountable conditionally , but the traverse is repungnant to the plea , though it be otherwise , or another way , against the book of . ed. . see . ed. . . . ed. . . h. . : ed. . . , . ed. . . that it is a good bar without traverse . but brooke in abridging the case of . ed. . in title of account , saith , that it seemes that the traverse ought to be without that , that he was his receiver in other manner ; and there and in the book at large are , that justices , that is , coke , nele , and vavasor against bryan ; that it ought to be traversed : but here in the principall case , it was adjudged that the traverse made the plea ill . hillary . jacobi , . in the common bench. dunmole against glyles . the case was this ; grand-father , father and son , the grand-father was possessed of a tearme for two and twenty yeares to come , devised to the son the land for one and twenty yeares , and that the father should have it during the mynority of the son , and makes the son his executor and dies , the son being within the age of one and twenty yeares , the father enters into the land , and makes a lease for seven yeares by indenture , untill the son came to full age , the father makes his son his executor and dies : the son enters by force of the devise made by the grand-father : and the question was if the son shall avoid the lease made by his father and it was agreed that he might , in proofe of which a judgement was cyted which was in the kings bench , mich. . of eliz. rot. . or . in the prioresse of ankoresse case , where a tearme was devised to one , and if he died within the tearme , then to such of the daughters of the devisor , which then should not be preferred , the devisor dieth ; the tearme was extended for the debt of the first devisee , and then he died , the extent was avoided by the daughters not preferred , and they grounded their judgement upon the former judgements in weltden and eltingtons case , and paramores and yardleys case in the comment . and for that the law intends that a devisor is inops consillij , and for that his devise shall have favourable construction according to his intent appearing within the devise , and it was said by coke that in many cases , a man may make such an estate by devise , that he cannot make by an act executed in his life time , as it was adjudged in graveners case , where a man devises his lands to his executors for payment of his debts , that there the executors have interest , that there the executor of executors shal have that , and such estate cannot be executed by act in the life of the devisor , and so it was concluded by them all , that the son shall avoid the lease made by the father , for the devise was executory , and doth not vest till the full age of the son , and then executor , and shall avoid all acts made by the father , by which judgement was given accordingly . freeman against baspoule , see . coke . b. the case was this ; a. was indebted to b. and they both died , the heire of a. for good consideration , assumed to the administrator of b. that he would pay to the said administrator the said debt , and for the not payment of that , according to the assumption the administrator after brought an action , and then the said heire and the administrator submitted themselves to the award and arbitrement of c. and became bound one to the other ; to stand to the award accordingly , so that the said arbitrator makes his award of all the matters and controversies between them before such a day , c. the arbitrator before the day recyted the assumpsit , and the debt as aforesaid , and agreed that the heire should pay the administrator so much money , and that published according to their submission : and in action upon the case , nullum fecit arbitrium was pleaded , and upon demurrer , it was objected that the award was void . first , for that it was for one party only , and nothing was arbitrated of the other , and to prove this the book of . h. . . was cited , and . h. . . see r. . . b. and this also appeares by the pleading of an award , for he which pleades it ; that he hath performed all things which are to be performed of his part : and that the other pleades performance of all thing which are to be performed of his part , by which it appeares that there ought to be performance of both parts , and by consequence one award to both parties , according to . h. . . secondly , that the award was void , for that , that the submission was of all controversies , so that the arbitrator delivered his award of all controversies , &c. and there was no award of the said suit between the parties , and for that he hath not made an arbitrement of all controversies , and by that the award was void , and to prove that , the bookes in eliz. dyer . pumfreies award , and . eliz. dyer . . and . h. . . where it is said , that if the submission were of all things , and the arbitrement of one only , that is a void arbitrement . thirdly , for that it was not limited within the award , at what day , nor at what place the money should be paid by the heire to the administrator , and for this cause also it shall be void , for it ought to be payd immediatly ; and if the heire cannot find the administrator , he forthwith hath forfeyted his obligation , and for that in this point it is uncertain , and for that shall be void , as it is in samons case , . coke . b. where the arbitrator awards , that one party shall enter into bond to another for injoying of certain lands , and doth not say in what sum , and adjudged void for the uncertainty , and so in this case by which , &c. but it was answered and resolved , that the arbitrement was good . and to the first objection it was resolved , and agreed , that every award ought to have respect to both parties , if it be not a matter which concernes one party only , and neither recompence nor acquittall due to the other party in which case the award shall be good : and it was resolved in the principall case , that the award was made of both parties , for one was to have money , and the other though there was no expresse mention , that the other should be discharged of his assumpsit , yet the award was a good discharge in law , and may be pleaded in bar upon an action brought upon the assumpsit , and so it was for both parties . and to the second objection , it was agreed , that where submission is , with ita quod , &c. as above , that there the arbitrators ought to make arbitrement , of all the variances and controversies , referred to their arbitrement , and if they do make no arbitrement , of all the matters of which the submission is made , the award is void , but if the submission be generall , as of all matters in variance or controversie between them : there if the arbitrator makes his award of all matters which are known to him , the award shall be good : as my lord coke conceived , though that there are other matters in variance , of which the arbitrator hath no notice , as if divers creditors sue a-commission , upon the statute of barkrupts , and an another person to whome the bankrupt was indebted , doth not come in as a creditor , nor give notice to the commissioners , that the bankrupt was indebted to him , he shall not take benefit of the commission , for the commissioners cannot releive those creditors of which they have no notice , as it appeares by the case of bankrupts in . coke . and to the third objection it was answered and resolved , that the award was good , notwithstanding that no place be expressed where the money shall be paid , for in law that ought to have resonable construction , and the party ought to have reasonable time for the payment of that , but foster conceived that it is not good , for it seemed to him , that if the award shall be good , that the obligation of submission shall be immediatly forfeyted , for that there was neither time nor place , where the money should be payd , but this was answered with the bookes of . h. . . ed. . where it is said that if an arbitrator award that one party shall pay such a sum of money at such a day , and keeps the award in his pocket till such a day be past , that yet the obligation shall not be forfeyted : and so it was resolved and adjudged by all the other justices , that the award was good , and judgement was entred accordingly . hillary . jacobi , . in the common bench. foster against jackson . richard foster plaintiff in scire facias against anno jackson and myles jackson executors of thomas jackson , upon judgement had against the said thomas in an action of debt : the defendants pleades that the said thomas jackson the testator was taken upon a capias ad satisfaciendum , awarded upon the sayd judgement , and in execution for the sayd debt , by force of the said capias , and there died in execution , and so demands judgement , &c. and the sole question was , if the said testator being in execution for the said debt by force of the said capias , and there dies , if this be satisfaction of the debt or not . and dodridge the kings serjeant which argued for the plaintiff in the sayd scire facias conceived that it is no satisfaction , but that notwithstanding the debt remaines , for the words of the writ are , capias ad satisfaciendum , and all others executions , as fire facias , and eligit are satisfactory : but the capias is but a restraint of his liberty , till he hath satisfied the debt , and for that it is no plenary satisfaction , but only restraint of his liberty , which the law more respects then goods or lands , and for that custodia ought to be salva & stricta : so by this the party may be inforced to pay his debt salva , to the party , so that by this the party may be safely detained , till he hath satisfied the debt , and stricta to the king , so that by this justice may be satisfied , and for that bracton saith ; that it is only to compell the party to make satisfaction : and it is resolved in the . h. . . that it is no satisfaction , but that the body should remain as a pledge , till satisfaction a were made , or as return irreplevisable , and yet neither the one nor the other are satisfaction : and the words of the writ are capias ad satisfaciendum , the party , but if he will satisfie then there is no reason that the defendant shall be imprisoned by the writ : but if he will not pay , then he shall continue in prison , quousque satisfecerit , by which it appeares that the imprisonment is no satisfaction , and it appeares also by the register , and fitz. na. bre. . b that if a man recover damages of trespasse , before the justices of oyer and terminer , and hath the party in execution by force of this judgement , now if the parry which is in execution dies in prison , he which recovered may sue certiorari to the justices to remove this record into the kings bench , that the justices there may make upon that record , as the law will in such case : and it seemes by this that the party shall have execution by elegit , or by fieri facias , for it is not reasonable as it is there sayd , that the death of him which died in prison , shall be satisfaction to the party which recovered : ( but fitzh . here saith , tamen quere , for he doubted of that ) but in the register there is a speciall writ of certiorari to this purpose , that is to remove the record into the kings bench , so that the justices may do there upon that , as the law will , and if the law will not allow the party to have new execution , it were in vain to have such certiorari , for other course cannot be taken , and the end of every suit is to have payment , and so is the judgement that the plaintiff should recover his debt , and so is the writ , and the count , and the capias also , and to the end of justices in suum cuique tribuere : and the party hath not any of these ends , if the death of the defendant in prison shall be satisfaction , and in the . ed. . fitz. execution . persey said , that if in trespasse the plaintiff recover , and the defendant is taken for the kings fyne , if he pray that the defendant continue in prison , till he have made agreement with him , perchance he shall not have elegit , and for that being in prison , he prayed execution of his body , and had it , but if the party gets out that he hath no execution , that it is not his default , he shall have elegit after , for that , that he cannot have his purpose according to his first election . and if any be in this case , then upon that he inferrred that the party in this case may have a fieri facias against the executors . and also it is resolved by the whole court in the common bench , h. . b. execution . that if two are bound in an obligation , conjunctim & devisim , the obligee impleads one , and hath execution of his body , and after impleads the other , and condemns him , hee may have execution against him also , for the taking of the body is good execution , but it is no satisfaction , and therefore he may take the other also : but if he have satisfied the plaintiffe , he shall not have execution afterwards . and therefore this order , that the plaintiff upon an obligation shall have but one execution is intended such an execution , which is a satisfaction : see h. . . b. h. . . edw. . . edw. . . coke . blumfields case , resolved by all the court , that if the defendant in debt dye in execution , that the defendant shall have new execution by elegit or fieri facias , for the death of the defendant is the act of god , which shall not turn the plaintiff to prejudice , as it is said in trewynyards case , h. . dyer . the plaintiff shall not be prejudiced of his execution by act in law , which makes no wrong to any . and to the first objection which may be made against him , that is , that all processe are determined after the party is taken , and in execution ; to that he answered , that this is where the plaintiff hath satisfactory execution , as it appears by edw. . . where an action of account was brought against two , one was out-lawed , and the other comes by the exigent , and enters in the court ; and he which was out-lawed , obtained his charter of pardon , and for that , that processe was determined against him . and the plaintiff hath chosen to have his action against the other , he prayed that he may be discharged . but it was resolved , that the processe was not determined , nor he which was out-lawed shall not be discharged , till the plaintiff be satisfied , by which it appears that the process is not determined till execution with satisfaction . two other objections also he endeavoured to answer , that is , that the plaintiff hath determined his election by taking the capias , and that cannot resort to any other process : and to that he agreed , that where the party hath made such election , that he cannot resort to any other process , during the life of the party . but if the satisfaction be prevented by the act of god , as in the principall case . but when his person which was the pledg for the debt , and was to remain in prison till the debt be satisfied , is discharged by the act of god , and the plaintiff hath not the fruit of his suit , nor the judgement is not satisfied , and the plaintiff hath done all that hee can , and there was no defect in him , it is no reason , but that he may have new processe ; and the third objection is a judgment which was given in the kings bench , pasche . eliz. rot. . between williams and curtiz : and to that he said , that he he conceived , that this was a rule for default of prosecution , for the cause was referred to arbitrement , and so hanged for long time : and so though the judgment was directly against law in the principall points , yet for that , that it was not upon solemn argument of the judges , hee saith it is not to be compared to other authorities by him cyted before , for which he includes , and prayed judgment for the plaintiff . hutton serjeant that argued for the defendants conceived the contrary , and first he examined how the body of a man cometh subject and lyable to any execution , and to that he said , that by the common law the body was not subject to execution for the debt of any man , but in accompt only a capias ad computandum lyes , and no other processe in this action , but distresse infinite till the statute of marlbridge , chap. . and west . . chap. . capias was given in accompt ; for by the common law , the processe in that was distresse infinite as aforesaid , and after by the statute of edw. . chapter . such like processe was given in debt , as in accompt , and before that the body of the defendant was not lyable to execution for debt , if it be not in the kings case , as it appeares by sir william harberts case , . a. and upon this he inferred upon the words of the statute of ed. . chap. . which saith , that such like processe shal be in debt , as were in accompt : that after the plaintiff hath determined his election , and taken a capias , that then he is in the same case as if it had been in accompt , and for that he cannot resort to any other processe . and he said that the words of the elegit and fieri facias do not differ in substance from the words of capias , for there is to satisfie the party , as well as in the other : and when a man hath made his election to have elegit , he shall not have other execution . but when the defendant hath neither goods nor lands , then qui non habet in are licet in corpore , and the plaintiffe at the first when he hath judgment hath election to have fieri facias , elegit , or capias , then he cannot have fieri facias ; but if he determine his election at the first , and sue elegit or capias , then he cannot have fieri facias , but may first sue fieri facias , and after elegit or capias , as it appears by the h. . . h. . . and h. . . but if it be upon statute staple , then he may have execution for his body , goods , and land together , as it appears by h. . . lynnacres case is put in blunfields case , coke . b. and h. . . but the reason of this is , that a speciall execution by statute is given in this case . and he agreed , that where a judgement is given against or . and the plaentiff sue capias against one of them , by that he hath determined his election : so that if he dye in prison or otherwise , he may sue another capias against the others , but he cannot sue fieri facias , or elegit , as it appears by h. . . before ; and blunfields case , coke . b. h. . . and he said that the body is the principall , and becomes chargeable by statute : and it appears by assis . . that when the party is in prison , that this is adjudged in law an execution for the party : and further in the booke of h. . . is but the opinion of prisot and lacon : and the principall case there depends upon another point , fitz. . before cyted , is but a quere , and eitz . himself doubted of it ; and the book of edw. . fitz. execution , . is but the opinion of percye ; but the judgment upon the principall point is otherwise . and the principall case in blunfields case , coke , was upon another point also , as it appears by the booke , and so he concluded with the judgment before cyted to be in the kings bench , pasche eliz. between williams and cuttris , which was direct in the point according to his opinion , and prayed judgement for the defendants in the scire facias , and it is adjourned . this case was argued in trinity tearm next ensuing , by all the judges of the common pleas : and first foster the youngest judg argned , that the death of the defendant in prison being in execution , was no satisfaction , but the plaintiffe may have a new execution against his executors , for he said it was an old saying , that debts went before deadly sinne : and that every one ought to satisfie his debts by the law of god , before legacies given to charitable uses : and so by the law of the realm , if it be not the default of the plaintiffe , as it was not in our cause ; for the death of the defendant in prison was the act of god , and the executors have confessed by pleading that they have assets , and the plaintiff hath nothing but griefe and pain ; and he said as before , that at the common law no capias lay , till the statutes of marlebridge , chap. . and westminster , the . chap. . capias was given in accompt , and then the statute of edw. . chap. . gives such like processe in debt which was in accompt , and then in accompt capias ad computandum lyes , and in debt capias ad satisfaciendum : and if in accompt the defendant was adjudged to accompt , and capias ad computandum be awarded , and he taken by force of that , and committed to prison , and here dyes , a new writ shall be awarded : so in debt , if the defendant be taken by capias ad satisfaciendum , new writ shall be awarded against his executors , see edw. . . h. . coke . blundfields case ; for it is only the default of the defendant , that the debt is not satisfied , and for that it is no reason that the plaintiff should be prejudiced by that : and h. . . and . by skreene , debt upon an escape doth not lye against the executor of the sheriff , but new processe shall be awarded against the prisoner which is escaped ; for a man shall not take advantage of his own wrong , as in the case of littleton . if the sonn makes disseisin , and enfeoffs the father , which dyes , the sonne shall not take advantage of this discent , because he was particeps criminis , and he said it was no wrong to any , if execution were made of the goods of the testator , and it is mischievous to the plaintiffe , for he shall loose his debt : and to the objections which have been made , that there is an end of processe when the defendant is taken by capias , and dyes in execution , the which he agreed as long as the defendant lived , but after his death he may make new election , ed. . fitz. execution , . by percye . and it appears by the pleading in ed. . that judgment & execution without satisfaction is no plea in bar. and also he cyted the register , . and fitz. na. bre. . . ed. . h. . . where the plaintiff had effectual execution , which was satisfaction , ed. . edw. . edw. . h. . h. . to the same purpose , for which dodridge cyted them before . and also he said , that the judges have always had respect to the satisfaction of debts , and for that would not bayle one in execution upon a writ of errour , where errour indeed was assigned , but suffers him to remain in prison till the judgment were reversed . but here the plaintiff hath neither bale nor any satisfaction but griefe and pain : and in the of h. . the sheriff returned , that the defendant had no land , but lands in use , and was adjudged that he should execute the elegit upon these lands , such was the respect that the judges have to executions , and to the case of h. . . this is but the opinion of lacon , which erred in the principall case , and may as wel erre in this point : and his opinion also is so intricately penned , that he cannot understand it : and martins opinion also in h. . . is against the judgment of the principall case . and to the objection , that the party had determined his election by the execution of the capias , he agreed to that with this difference , that is , if the plaintiff sue scire facias , & the sheriff levyed part , that this notwithstanding the plaintiff may have capias for the residue , and so elegit after fieri facias , or capias , for there is not any entry made of awarding of fieri facias , or elegit : but the plaintiff only sued that out of the court , see edw. . ed. . ed. . ed. . ed. . assis . . h. . . and so he coucluded that the judgment shall be given for the plaintiff in the scire facias . warburton justice conceived the contrary , that is , that the plaintiff in the scire facias shall be barred : and he agreed and said , that none will deny but that debts shall be paid , but that ought to be according to the rules of the law : for by the common law the body of the defendant was not lyable to execution , and then it is to examine in what cases he is at this day subject to execution : and though in trespasse capias lyes at the common law , but in debt no capias lyes till the statute of edw. . which gives the same processe which was in accompt , and this is as well in the originall processe , as in the judiciall , and elegit was first given by the statute of westminst . . and this was of the half of the land : but levari facias was at the common law of the profits of the land : that in debt acceptance and election binds the party , and so this remains ; for the said statutes being in the affirmative , doth not take away that , nor abate it : and by that if conusee of a statute accepts land extended at too high a value , he is bound by that , edw. . . h. . h. . and that when the party hath judgment , he hath election to have execution by fieri facias , elegit , or capias , for he hath determined his election . so if he makes his election of a capias at first , he cannot have elegit after , edw. . adjudged edw. . processe . according , long of edw. . by markeham and others , and the reason which is given in edw. . edw. . and h. . that have been remembred to the contrary is only , that it is reason that the plaintiff should have the same process : which was at the common law , and there was not any such processe as capias in debt at the common law , and h. . may be understood that the elegit was not returned , and so no record of that . and edw. . a man may recover in debt , and pray elegit , and after brings debt upon the record , but it doth not lye . and he agreed to the book of h. . for there the defendant was bound in an obligation to make satisfaction of debt , and hee dyed in prison , and this cannot be satisfaction according to the condition . and in the case of fitz. nat. brev. the same doubt of that , and this was the more strong case then the case at the barr : and if he doubted of that , is the cause that he doubts also . and cyted williams and cuttis case , rot. . in the point , where the reason of the judgment was for that , that the plaintiff had his plain and full satisfaction , and saith that it was apparent difference between that and blunfields case , for there was defendants : and here if one dyes , there shall be no satisfaction , and so these reconciled . and so if a man be taken upon a statute merchant , and dyes in execution , that shall not be satisfaction , for this is speciall processe given by statutes . and h. . . if a man being in execution escape , he shall not be taken againe : and in the h. . in debt upon an obligation capias profine was awarded , and the defendant taken by that . and the plaintiff prayed that he might be in execution for his debt also , and could not , for that he had sued fierifacias , and it doth not appear if the sheriff have that executed or not . and so he concluded that the judgment should not be revived by the scire facias against the executors , and that judgment shall be given for the defendants in the scire facias . walmsley justice accordingly . he specially observed the forme of the writ which suggests , quod executio adhuc restat facienda , &c. and to that the defendants in the scire facias plead that capiás was awarded at the suit of the plaintiff , and upon that the defendant was taken in execution and there dyed , by which it appears that the words and suggestion of the writ was answered directly , and upon that the strongly relyed , and then said that there were ▪ ways to have execution , that is , by fieri facias , capias , and elegit : and there is a speciall order to be observed in the suing of that , for a man may have fieri ficias , and if the defendant have not goods , may have elegit , or capias : but if he make his flection to have capias , he cannot have fieri facias , nor elegit , or if he sue elegit , he cannot have a fieri facias , nor capias : in h. . and edw. . which have been cyted , the plaintiff sues elegit , and after that would have sued capias , supposing that he had not accepted the elegit ; but of the other part it was said , that the sheriff had made execution of it , the which he could not contradict it . and if the plaintiff had fieri facias , and goods delivered to him in execution , and the writ returned , he shall not have a second execution : and so if elegit executed and returned , h. . h. . and said that executions are tickle things ; for if the party escape , he delivers himselfe out of execution , and the plaintiff shall not have other execution against him , for that he hath had one execution , edw. . and so if a man sues a writ of priviledg out of parliament , and by that is delivered out of execution , he shall not be taken again . and so if a man be delivered upon a writ of error , for when the party hath made his election to take processe against the body , it was his folly that he made such election ; for though that death be the act of god , yet for that , that statutum est omnibus semel mori , and for that god hath done no wrong , for he hath but performed his eternall decree , and for that it is not the act of god only , but the folly of the party to make such election , and the book of edw. . by percy is but his opinion , and more other books are against that , and 〈◊〉 . h. . danby and prisot are against lacon : and though that the death of the party in execution is no satisfaction in rei veritate , yet in law it is satisfaction , for that that the party hath no other remedy , the writ in the register is certiorari ad faciendum in omnia & singula que secundum legem & consuetudinem fieri , &c. and there is not any law nor custome to warrant any such course , and here is not any other proceedings upon it . but if he may have a writ of scire facias ostensurus quare satisfactionem habere non debet , then it may be that the defendant's ought to give another answer , but for that , that there is not any such writ , it seems that judgment shall be given for the defendants . coke chief justice seemed the contrary , and he agreed with foster , and he said , that it is vexata et spinosa questio , for the books vary , and great arguments have been made of both parts . there are three things considerable . . reasons . . authorities . . answers of objections . and for the reasons : first , he considered in whom the default is for which the plaintiff shall lose his debt . . that the debt remains after the body is taken in execution . . if the body taken in execution be satisfaction . . if the dying in execution be a discharge . . the mischiefs , if so they shall be . and to the objections . first , escape , which is the wrong and act of the party , it is no satisfaction nor discharge , and here is the act of god , and election of the party . . execution by elegit , if lands be extended upon that , this is no satisfaction . and so if he be delivered by a writ of error , and so in this case . and for the first , the fault was in jackeson , for he did not keep his day in the condition , and upon this was sued , then he pleaded a false plea , and upon that judgement was given against him , in all which actions the default was in the defendant , and no default in the plaintiff , for he took the body which is the visible execution , not in satisfaction , but to satisfie , and the defendants have not pleaded fully administred , but confesse that they have assets , and there is more reason that the plaintiff shall be satisfied , then the executors keep the goods to their own use ; for it is summa injustitia nocentem habere totum lucrum , & innocentem totum damnum . second reason was , that it is no satisfaction for the defendant to dye in prison , and agreed that if precipes are contained in one originall , there shall be but one satisfaction . but if one be taken by capias , and remains in execution , capias shall be awarded against the other , and he shall remain in prison till satisfaction be had , for execution is no satisfaction , as it is said in h. . b. execution . adjudged : see ed. . . ed. . h. . . and hillaries case , h. . and to the third , that is , that the debt remains after the taking of the body in execution , and agreed that when execution is made of goods or lands , no debt remains , but otherwise it is of execution of the body , as it appears by h. . before cyted , b. execution . and assis . . where a man was condemned in damages in trespass , and committed to prison by capias , and escaped , the gaoler dyed , the plaintiff prayed debt against his executors , and could not have it , for they are not charged without specialty : and the plaintiff alleadged that the defendant was vagrant in the county of m. and prays capias to the sheriff of m. to take him , and it was granted , for his remedy against the sheriff was determined , and this proves also , that the debt remains after escape , & scire facias is , licet judicium redditum sit , tamen executio restat ad huc facienda de debito , for the body is but as a pledg , & the form of the writ in the register capias ad satisfaciendum , and not in satisfaction , which proves that there is no satisfaction , but upon the payment of the money his body shall be delivered out of prison , & this is execution with satisfaction , for there are two executions ; that is , medius & finalis , the first is the capias , the second satisfaction , which is vltimus finis : and it is a good rule , quod nihil videtur factum , ubi aliquid restat faciendum ; and here is aliquid faciendum , that is , satisfaction , for in all acts there is a beginning , progression , and consummation , & consummation in this case fails , mors est horendum divortium , which is the act of god. and when the act of god hath delivered him which lyes in prison for his own default , it is no reason that the plaintiff should be prejudiced , ed. . . a man enfeoffs the father with warranty , which infeoffs an estranger which enfeoffs the son : the father dyes , the son may vouch , for it is the act of god : and to the mischiefs , nec crudelis creditor , nec delicatus debitor sunt audiendi , for they play at bowls , and keep hospitality in the prison : or if a man be arrested , and makes a tumult , and is slain in indeavouring to break the prison , and breaks his neck , it is no reason that he by such act should defraud the plaintiff of his debt , the opinions against him are coupled with absurdities , as h. . . martins opinions is also imparted with absurdity , h. . . the opinion of lacon is also coupled with another absurdity : and assis . b. execution is also coupled with absurdity , that is , if the defendant escape , this determines the debt , and is satisfaction : and edw. . quare impedit , . in writ of right of advowson , the plaintiff hath judgment , and habere facias sesinam in the life time of the incumbent , and after his death sues scire facias , the first is execution , but not with satisfaction , and the last is satisfaction , for by this he hath the fruit of his judgment : so ed. . execution . a younger statute is extended , and liberate sued , executed , and returned : and after an elder statute is extended , and after satisfaction of that , he that hath the youngest may sue scire facias , and have execution of the youngest : so of beasts distrained , and put into the pound , and there dye , he which distrayned , may distray● again , for this is no satisfaction of his rent , . h. . . edw. . . eliz. dyer and so capias ad computandum ▪ is not accompt , nor capias ad acquietandum , acquital , register , . . . and it is said in bract. lib. . chap. . sunt brevia magistralia & f●rmata , the first are made by masters of the chancery , the others which are originall by cursitors , which are founded by acts of parliament ▪ and cannot be changed without parliament ; and as fitzherbert in his preface to his na. bre. saith , that every art and science hath certain rules and foundations , to which a man ought to give faith & credence , and the writ of fieri facias being founded upon a statute , and the form , that executio adhuc restat facienda : he saith that this was the judgment of the parliament , that the first execution was not satisfaction . but as the writ is also in the register , ▪ that where a man is condemned in trespasse , and committed to prison , detinendum quousque , he satisfie the party , by this it appears that he is but a pledge : and fitz. na. bre. . . . and register , if a man be taken by capias excommunicatum , ad satisfaciendum & parendum clavibus ecclesiae , and is delivered by writ , which issues improvide , another writ of capias shall be awarded . and to the matter of election he agreed , that if elegit were awarded , the party cannot have fieri facias , nor capias , for there is entry made , quod elegit sibi executionem de meditate . but when fieri facias or capias is awarded , no entry at all is made . but if any of them are returned executed , then he cannot resort to another processe ; and with this difference agrees all the books of h. . . h. . . ed. . . edw. ● . process . h. . . h. . . edw. . . edw. . . and . edw. . . edw. . . eliz. dyer , . and to the case of williams and cuttrys , cyted to be adjudged , eliz. the which he cyted as lambs case , he said in this was many apparent errors in forme of pleading , so that the matter in law cannot come to judgment , h. . prisot seemed that by the law of god the imprisonment of the body of a man was no satisfaction , for by that the creditor may sell his debtor and his children for the payment of his debts , matth. chap. vers . . kings chap. vers . . matth. chap. . luke chap. . and so he agreed with foster in opinion , and concluded , that the death of the defendant in the action of debt was no satisfaction , nor determination of the processe , nor of the election , but that the plaintiff may have new execution against the executors , and by consequence that judgment shall be given for the plaintiff in the scire facias , but no judgment was given for that , there was equality of opinions , that is , coke and foster against walmesley and warburton , danyel being dead , and for that it was adjourned . pasche . jacobi . see hillary . jacobi the beginning . chalke against peter . this case was argued this tearme by harris youngest serjeant for the defendants , and by haughton for the plaintiffs : and serjeant harris conceived that sir francis barrington was within the intent of the act of . ed. . chap. . for he hath grant of trees of inheritance , and this was all the profit which rise upon the soyl , and for that it shall be intended of the soyl it selfe : and to prove that , he cyted parromor and yardlyes case in the com. . and . . h. . . crooke , . eliz. dyer . where it is agreed by three justices , that the patentee or grantee of herbage in a forrest shall have trespasse against any which consumes and distroies the grasse , but not the trees , nor of the fruit of that ; and the trespasse of that shall be quare clausum fregit , as well as i● it were of land : and may inclose the forrest by such grant : see . ed. . . a. by littleton that vestura terrae doth not pass without livery : also admitting that he is not owner of the ground within the statute , yet it seemes by the statutes that they are : it shall be lawfull for the same subjects , owners , &c. and to such other persons to whom such vvood shall happen to be sold : immediatly after the vvood so cut , to fence and inclose the same ground with sufficient hedges able to keep out , &c. upon which words he inferrd , that s. francis barrington is such a person to whom the vvood is sold , and for that may inclose : and also he conceived , that the statute is generall , and concernes all persons in generall : and also all forrests and chases whatsoever : and for that it is not like to the cases , put in hollands case , . coke upon the statute of . eliz. vvhich concernes all ecclesiasticall persons in generall , that this is a generall act , and yet concernes but one genus in particuler : but the statute of . eliz. is otherwise , which concernes the bishop , which is but a species of this genus , as it is resolved in elmers case , . of coke : and also he conceived that it shall be releeved by the statute of . h. . and so prayed judgement for the defendant . and haughton conceived , that the words of the statute intend such a person to whom vvood is sold , for one turne only : and not he which hath inheritance of wood : & that there is no word in the statute to exclude commoner , and such a vendee is not without remedy , for he is within the statute of . h. . if he pursue his remedy according to the statute , and so prayed judgement for the plaintiff . and at another day foster justice argued , that the plaintiff in the replegiare shall recover , and said that the cause consists of three parts . first , the arbitrement . secondly , the assurance . thirdly , the private act of parliament , of . h. . and to those the arbitrement and the assurance shall tye only those which are parties to it , and no others , and the commoner is not party to that nor shall not be bound , and the private act confirmes the assurance , saving the right of all strangers , by which the commoner is exempted , and also the statute is made only as confirmation of the grant , and for that it shall not extend to any other thing , nor to other parties , but those only which are parties to the grant , as if the queen had made a voydable patent , and after had made a lease for yeares , and after by the statute of . eliz. all letters patents made within such a time were confirmed , this makes the letters patents good , against the queen , but against the lessee : and also all the covenants in the grant , extend only to the lord rich and his heires , and these which claim under him : and for that it shall not extend to the commoner , and also the private act saves the right of all strangers , by which the right of the commoner was saved : and he conceived , that the commoner shal not be excluded by the statute of . ed. . chap. . which recites , that if any subjects have any woods growing in his own ground , within any forrest , chase , &c. shall cut the same vvood by lycense of the king or his heires , in forrest , chases , &c. or without lycense in the forrest , chase , &c. of any other person , or make any sale of the same vvoods : it shall be lawfull to the same owners of the same ground , whereupon the vvood so cut did grow , and to other such persons to whom the said wood shall happen to be sold immediatly , &c. to cut and inclose the same ground , with sufficient hedges , able to hold out all manner of cattell and beasts , and to continue the same by the space of seven yeares , without suing of any other lycense , of him or of his heires , or of any other persons , or of any their officers of the same forrest , chases , &c. by which words it appeares , that the statute doth not extend to any wood of the king , but only to the wood of the subject lying in forrest of the king , or of other person owner of the forrest , or chase : and if it be in the kings case , and he hath lycense from the king to cut the wood , then may he cut it without other lycense , according to the perclose of the act : and the statute doth not give lycense to inclose , without the assent of the commoner , but without other lycense of other officers of the forrest : and by this statute the owner of the ground , may first cut the wood , and then inclose : but by the statute of . h. . otherwise it is , for by this he may first inclose , and then cut within four moneths ; and that sir francis barrington hath no interest in the soyle , and that this statute of . ed. . is a private statute and ought to be pleaded , for it concernes only forrests and chases , and it is no other , then if it had been of al woods in parks , and resembled that to the statute of . eliza. of the bishop , which concerns only the bishop , and it is resolved in elmers case to be private ; and the same judges shal not take notice of that without pleading , and it is not like the statute of eliz. which concerns al manner of spiritual persons in general , and also that this statute is repealed by the statute of . h. . which is a negative law , and leges posteriores priores contrarius abrogant , and it is agreed in porters case . coke , and so he concluded that judgment should be given for the plaintiff . warburton justice to the contrary , and yet he agreed that neither the arbitrement , nor the conveyance , nor the private act , excludes the commoners for these reasons , which have been urged by foster ; but he relyed only upon the statute of ed. . and to that he sayd that the statute gives power to the owner of ground to inclose , and it should be frivilous for him to inclose , if the commoner shal not be by that excluded , and he said that the persons mentioned in the statute are two . the first is the owner of the ground , and such person he agreed sir francis barrington is not . the second is such person to whom such wood shal happen to be sold , and such person it seems , is sir francis barrington , and yet he agreed that he hath an inheritance in the trees , and the owner of the soyl cannot cut them , nor dig the soyl from the roots of the trees , for then the grant could not take effect , and he sayd there is no difference between sales of wood , though that the statute speaks of the person to whom wood shall be sold , and another person to whom it shal be given without consideration , and to that he resembled the statute westminster . chap. si quis alienavit terram uxoris suae , non deferratur , &c. sed expectet emptor , &c. though that the statute mention buyer only , yet donee without any consideration shal be intended in it , and that the statute doth not intend within it , and that the statute doth not intend sale vinca vice tantum , but rather sale of inheritance , for such vendee may rather intend the preservation of the wood then the other : and he inferred upon these words of the statute , to inclose the same grounds with hedges sufficient to keep out al manner of cattel and beasts out of the same grounds , and these words expound themselves , for they shal not be intended deer , but cattel which belong to commoners , and so is the statute of west . . chap. if infant suffer usurpation , this shal not bind him , but this shal be intended , where he hath advowson by discent and not by purchase , and this appears by the words of the statute , which are , cum aliquis vis presentandi non habens presentavit ad aliquam ecclesiam , cujus presentatus sit admissus , ipse qui verus est patronus , per nullum aliud breve recuperare potuit advocationem , quam per breve de recto quod debet perminare per duellum vel per magnam assisam per quod heredes infra etatem existentes per fraudem & negligentiam custodis multities ex heriditatem patiebantur , &c. by which words it appears , that there ought to be presentation which passeth by fraud and negligence of the guardian , which the statute remedies , and that is presentation which he had by discent , and not by purchase , and in the time of ed. . fitz. trespas . it is said , the law of the chase , that none may inclose his own wood , without the view of the forrester , and if the statute of ed , . gives license to inclose , and that notwithstanding the commoner may put in his beasts , then is the statute made in vain ; and it is resolved in the of ed. . fitz. trespas , that if a man hunt in a park or chase , that this is not within the statute of vvestminster . chap. ed. . so the statute of ed. extends to the kings deere , and also to other beasts , which shal be intended ●he cattel of the commoners , and it is not repealed by the statute . h. . for these statutes are made for several purposes , and consist upon several grounds , and if the statute of edw. . be repealed , then there cannot be inclosure in forrest or chase at al : and which is general law , and the justices ought to take notice of that without pleading , and that al lawes to some respects may be intended to be special as the statute of eliz. concerns only spiritual men , and so charta de foresta , concerns only forrests , and the statutè of h. . chapt. . gives appeale to the wife for the death of her husband , and though that al these statutes concern one thing only , and for that to some intent may be said to be special , yet they are al generall laws , and so he concluded that judgment shal be given for the defendant . vvalmesley agreed with foster in al , that is , that sir francis barrington hath nothing but profit , in alieno solo , and for this cause was not within the statute of ed. . which might inclose , and the common law doth not exclude the commoner , for the lord rich granted the wood , and this transit cum onere , to sir thomas barington , and sayd , that it was in vain to dispute if the statute of ed. . was private law , or if it were repealed , which makes nothing in the case , and so he breifly concluded that judgment shal be given for the commoner , which is the plaintiff . coke cheife justice agreed , that judgment shal be given for the plaintiff , and did agree that the arbitrement , the convaiance , nor the private act made nothing in the case , for by these the commoner cannot be barred of his common ; but for the statute of ed. . he would first consider how the law was before the making of that , and as to that it appears by the statute of charta de foresta , that by the common law , no man which was owner of wood in which another had common ; that they could not inclose , but assise of common or action upon the case lyeth , as it requires , and if it be several wood within the kings forrest , in which none hath interest of common , then may he inclose by the view of the forresters , and this hold inclosed by the space of three years , as it appears by the preamble of the statute of . ed. . cum parvo fossato & bassahaia , that is a little ditch , and low hedge , for that the kings deare are not shut out , and this appears in the register , in the writ of , ad quod damnum , fitz. na. bre. . f. and then comes the statute of ed. . and gives power to inclose with such sufficient hedges able to keep out al manner of beasts and cattel . and then considered between what persons the statute is made : and to that he conceived it is made between the king and his successors of one part , and subjects having woods growing upon their owne grounds , and such persons unto whom such woods shal happen to be sold of the other part ; and a commoner is not named in the statute , and also the body of the statute is not general , but there are some words in one sentence , and this is but a sentence and cannot be divided ; the words are . first , the sayd hedges so made , may keep , &c. secondly , and repaire and maintain them , as often as need shal be , within seven years . thirdly , without suing any other license of him ( that is the king ) or his heirs or other persons ( that is , which have forrests or chases ) or any of their officers , and here the sentence concludes , and there is no period before them , so that this statute being made between the king and owners of forrests and chases of one part , and owners of woods in their own soyl , and other persons to whom such woods should be sold other part , this shall not extend to other persons , commoners , and it is like to the case in eliz. dyer . . a man makes a lease for years , and covenants that the lessee shal injoy the tearm without eviction of the lessor , or any claiming under him , if he be evicted by a stranger , this shal be no breaking of the covenant , for a stranger is no party to the deed , nor claims under the lessor , and for this his entry shal not give action to the lessee , and so is the case in h. . between the prior of castleton and the dean of saint stephens , which was adjudged the of h. . pasch . rot. . though that no judgment be reported , where it appears that the king ed. . seised al the lands of priors aliens , in time of war , for that that they carried the treasure of the king out of the realme to the kings enemies , and so it was made by h. . also during the time of his reign , and then in the second year of the reign of king h. . by a statute made between the king , and the sayd priors aliens , al the possessions of the sayd priors were resumed into the hands of the sayd king , and adjudged in . h. . . before that this shal not extend to the prior of castleton , which had annuities issuing out of the possessions of the sayd priors , for the said prior of castleton was not party to the sayd act of parliament , and for that he shal not be prejudiced by that , and so it was adjudged , . and . eliz. in the court of vvards in the case of one boswell , where the king made a lease for years which was voydable , and after by another patent granted the inheritance , and then came the statute of . eliz. to confirm al patents made by the sayd queen within her time , and adjudged that the sayd act shal not make the sayd patent voyd to the patentee , which is a stranger to the act of the parliament , but only against the queen , her heirs and successors , for by the statute it is made only against one person only , and shal not be good against another , though there be no saving of such person in the sayd act. and also he conceived that the statute of ed. . doth not extend to any woods in forrest , in which another hath common , for it doth not extend only to such woods which a common person hath in the kings forrest , or common person , and that it may be inclosed for the space of three years after the cutting of the wood in this , before the making of the sayd statute , and this was no wood in which an estranger had common , as it appears by the preamble of the sayd statute ; and then after in the sayd statute it is sayd , such woods may be inclosed . and also he conceived where the statute sayth , that they may inclose the same grounds , with such sufficient hedges , able to keep out all manner of beasts and cattell out of the same grounds , but this refers to the quality of the hedge , for before it ought to be a small ditch , and by this statute it ought to be with such hedg which shall be able , &c. and it shall not be referred to the manner of the cattell : but for the difference between beasts of forrest , beasts of chase , and beasts of warrain , see the register , fol. . ed. . . . h. . . b. hollinsheads cronicle , fol. . b. . and he conceived that sir francis barrington is such a vendee of wood , that is within the statute , though that he be vendee of inheritance , and hath a greater estate then vnica vice , but for that , that he conceived that it was not within the statute for other reasons before cyted , he would not dispute it : but he conceived if this had been the question of the case , that this was within the statute , and also he conceived that this was a generall statute , of which the judges shall take notice without pleading of this ; and this reason was , for that that the king was party to it , and this which concernes the king , being the head , concernes all the body and common wealth , and so it was adjudged in the chancery in the case of serjeant heale , that the statute by which the prince is created prince of vvales was a general statute , and for that see the lord barkleyes case in the commentaries : also he conceived , that the said statute of of ed. . was repealed by . h. . for this was in the negative , that none shal cut any wood , but only in such manner as is prescribed by the said statute , and for that shal be a repeale of the first , and that by the first branch of the sayd statute it appeares , that if such giving of wood in his own soyl within any forrest , he cut to his own use , he cannot inclose , and by that branch commoner is not excluded , but by the second branch it is provided , that he may inclose the fourth part of his wood , and cut that in such manner as is appointed by the said statute , and then he shal loose his own common , in the three other parts , and so he concluded that judgment ought to be given for the plaintiff , which is the commoner , and judgment was entred accordingly . pasch . . . jacobi , in the common bench. cesar against bull. thomas cesar plaintiff in assise against emanuel bull , for the office of clock-keeper to the prince , & this he claims by grant of the king during his own life , with the fee of two shillings a day for the exercising of it , and three pound yearly for livery , and the patent purports only the grant of the office , and not words of creation of the office , as constituimus officium , &c. and the plaintiff could prove that it was an ancient office , and for that was non-suited in the assise , though that the tenant had made default before . pasch . . . jacobi , in the common bench. heyden against smith and others . the plaintiff counts in trespasse against these defendants , and these defendants justifie as servants to sir john leventhorp , who was seised of a free-hold of land , in which the tree , for which the action was brought , was cut , and so demands judgment if action , the plaintiff replyes , that the place where , &c. was parcel of a house and twenty acres of land , which time out of mind , &c. have been demised and demisable by copy of court roll , which was parcel of the mannor of a. of which the sayd sir john leventhorp was seised in his demesne as of see , and by copy at a court held such a day and year granted the said messuage and twenty acres of land , whereof , &c. to the plaintiff and his heirs , according to the custome of the said mannor , and prescribes that within the sayd mannor was a custome that every copy-holder may cut the boughs of all the pollingers and husbands growing upon his copy-hold for fire to be burnt upon his tenement , and also prescribed for house-boot , plow-boot , and cart-boote , and averred that he had nourished the growing of the trees upon his sayd copy-hold , and that the sayd messuage and buildings , upon that were ruinous , and the trees growing upon that twenty acres of land were not sufficient for the repairing of it , and so demanded judgment if he should be debarred of his action , upon which these defendants demurred in law , and it was adjudged by coke , warburton , and foster , daniel being absent , that the action was wel maintainable ; against walmesley who objected , that if a copy-holder may cut trees , as it was here pleaded at his pleasure , without pleading first , that his house was in decay and ruinous , and that then he cut trees for the repaire of that , that then he hath an estate at wil according to the custome , and not at the wil of the lord , and he sayd that he could not cut a tree , and imploy that for reparations twenty years : but the cause of this cutting , which is the ruines , ought to precede the cutting ; and he sayd that such copy-holder hath no property in the trees , by such prescription , no more then he which hath common of estovers , or tenant at wil , and if he cut a tree without special custome , he shal be punished in trespasse , as littleton saith of tenant at wil , and also he ought to plead how the house was ruinous , and what place and what part of that was in decay , and then that this so being in decay , that he cut trees for the repaires of that , and also that the prescription to cut off the boughs , pro ligno combustibili , is not wel pleaded , for by that he may cut all the timber and others also , and he who prescribes to hate estovers , ought to prescribe to have reasonable estovers for fuell , and the averment that all the trees are not sufficient for reparations is surplusage , and so hee conceived that the action for these causes is not maintainable , that is , that it is not maintainable , without speciall custome , and that the custome as it is pleaded here is voyd , but it was answered and resolved , by coke and the other justices before cited , that the action was wel maintainable at the common law without such custome , and that the pleading of the custome was surplusage , for it was agreed that the copy-holder hath special property , and the lord a general property : and it was sayd by coke and foster , that the lord may as wel subvert the houses as cut down the trees , for without them the copy-holder hath no means to repaire that , and for that if the lord cut the trees , the copy-holder may take them for repaire of his house , for the copy-holder hath as large an estate in the trees , as in his copy-hold land , and it was resolved that the prescription , was very wel pleaded , insomuch that the copy-holder pleads that as a custome , and also that prescription , pro ligno combustibili is good , and this is an apt word by which he may claim it , and that boote in any sense is maintainable , and in some sense is recompence or reparation , and it is house-boote , hedge-boote , fire-boote , plow-boote , &c. is in it self a saxon word , and the lord coke sayd , that it was adjudged michaelmas . and . eliz. in doylyes case , where it was a custome that the copy-holder might cut merisme for to repaire , that if the lord carry it away , that an action of trespass lies for the tenant , and pasch . . eliz. taylers case : a man was tenant by copy of court role of wood , and the soyle was excepted to the lord , and yet the copy-holder maintained an action of trespass against his lord for cutting of wood , and trinity . eliz. stebbings case , copy-holder prescribes to have the loppings of all the trees growing upon the copy-hold , and the lord cut a tree himselfe , and the copy-holder brought an action upon his case , and adjudged that it lyeth wel , and h , . fitz. waste . by hull , that tenant by copy of court roll cannot make waste , nor cut woods to fel , but for his benefit in repairing of his house , and henr. . . a. it seemes that if a stranger cut a tree , the lord may have an action of trespass , and the copy-holder another , and every one of these shal recover damages according to his interest , that is , the lord by his general property , and the copy-holder for his special property ; & it appears by clark and pennyfathers case coke . b. that the heir of the copy-holder , may have an action of trespass , before admission , by which it appears that the heir doth not take his estate of the lord but of his father : and also agree , that if such an heire dye before admission , the heir may enter , and take the profits , and so it was adjudged that the action of trespass brought by the copy-holder against his lord was well maintainable . pasche . . jacobi , in the common bench. earle of rutlands case . earle of rutland plaintiff in an action of trespasse upon the case against spencer and woodward defendants , the case was , the last queen elizabeth anno . eliz. by her letters patents under the great seale of england , granted to the earle of rutland the office of the custody of the porter-ship of the castle of nottingham , habendum to the sayd earl to be executed by him or his deputy during his natural ▪ life , and further the same queen , by the same letters patents , granted to the sayd earl , the office of stewardship of diverse mannors , habendum & exercendum , cum omnibus feodis , vadis & proficuijs eidem officio pertinentibus , to the sayd earl , from the time that he should be of ful age , during his life , and further the sayd queen granted to the sayd earle the office of keeper-ship of divers parks and forrests , habendum & exercendum officium predictum cum omnibus & singulis suis proficuijs , vadis , feodis , & emolumentis , quibuscunque , eidem officio pertinentibus , aut ratione ejusdem percipiendis per se vel sufficiendem deputatum sunm , &c. and after in the sayd patent it is recyted , that the sayd earl was of ful age an & eliz. vt informamu , r mandamus quod omnes & singuli officiarij , & alij quicunque sint intendentes & obedientes dicto commiti , & deputatis suis , in exerendo officium predictum , and if this patent were good or not was the question . and hutton serjeant conceived , that the patent was good , and that the sayd earl may exercise the sayd office of stewardship , for which this action was brought , by deputy by force of the sayd grant. the first question , which hee moved was , if steward of a court may execise his office by deputy , without speciall grant of that . secondly , if there be words within the patent , to enable him to execute that by deputy . thirdly , if upon this disturbance , action upon the case , quare vi & armis , lies . and to the first , he conceived , that the patentee may exercise the office by deputy without special words of deputation in the patent , for he conceived that it is not meerly an office of trust , for he hath not the keeping of any records , for the courts of which he was steward were not courts of record , and yet that all the books are , that ancient grants of office of stewardship , contain that the patentee may exrecise , per se , vel per sufficientem deputatum suum , though they are not of courts in which the steward is judge , but the suitors , but if a grant be of such an office of inheritance , then there needs words of deputatum , for here it is apparent , that there was not special trust reposed in the patentee : and he also agreed , that if it be not an office of profit , the grantor may enter and out the patentee , but the fee shal remain , as it appears by the h. . brookes novell case and ed , . and it was not the intent of the queen , that the earl of rutland should execute the office in person , for that should be an undervaluing of him , the which he sayd was proved by sir robert vvrothes case in the commentaries , where an officer to the prince was discharged of his attendance , by alteration of quality of the prince , and making of him king , and yet the fee remained . and to the second it seems , that the patent hath expresse words of deputation . and the third grant , which hath a reference to the grant precedent , and al the words being put together make a perfect grant , and this such construction hath been alwaies made of grants of the king , as it appears by sir john mullyns case , coke . and justice vvindhams case coke . a. so if the king makes a lease of a mannor , except a grove next to the mannor , this shal be intended next to the mannor house , for otherwise it shal be out of the mannor , and so the exeption voyde , but coke and foster doubted of that . and to the third point , that the action was maintainable , vi & armis , for when the deputy of the earl , of rutland proclaimed the court as deputy of the earle of rutland , and these defendants proclaimed that as stewards of the earl of shrewsbury , and after adjourned that ; and after held all the courts and received the profits , it seemed to him , that for this outing and disturbance which is disseisin , action upon the case lies , quare vi & armis , as wel as in the book of entries . two men had warrens adjoyning , and one of them puts cats , and other vermine into the warren of the other to destroy it , and the action of trespasse , vi et armis lyes , and so for menace action of trespas , vi & armis lies , as it appears by h. . and this disturbance is sufficient to maintain an assise , and upon that he concluded that the plaintiff in the action ought to recover , and to have judgment . and harris the younger serjeant argued , that the grant is not good , for default of certainty , as to this grant of stewarship , for the grant is of the office of stewardship of the mannor of mansfeild , and doth not shew where the mannor is , nor in what county ; and it appears , and is put for a rule by hussey cheife justice , in the . of h. . . b. that when a man wil have advantage of letters patents of the king , it behooveth that they extend certainly to things of which he wil have advantage , see . r. . . a. by hussey . ed. . . ed. . garters case , ed. . . and doddingtons case , which is hill , and pext , coke . . b. if the town be misnamed it is good , if there be another certainty , but if it be not named at all , otherwise it is . and to the point moved by hutton , he concived that this office of stewardship could not be exercised by a deputy , as it appears by littleton in his chapter of estates upon condition , where he saith , that there are estates upon condition in law , of which stewardship is one , fol. . sect. . that cannot make deputy without speciall grants , and with this agreed sir henry nevills case com. . and long . ed. . . b. and by e. . . and sir henry nevills case before , he could not grant over his office , but if he do not attend to the execution of that , it is forfeiture , ed. . so if he wants skill h. . . per totam curiam , he conceived that the law doth not make any difference , between the person of an earl and another , to the executing of this office , and that the words of the patent do not contain words of deputation , for in the grant the words are , habendum officium predictum , breifly written , cum omnibus vadis & feodis eidem officio , sue ratione ejusdem , &c. the which last words are expository of the first , that is , that it shal be intended that the office is contained in the last grant , and shal not be referred to a grant precedent , in which the stewardship is contained , and also he conceived that this action upon the case doth not ly , quare vi & armis , as it appears by fitzherberts naturabrevium . h. where it is sayd , that in trespass upon the case , these words , vi & armis are contained in the writ , shal be sufficient cause to abate the writ , see assise . he which councels to make disseisin , shal not be a disseisor with force , for he ought to do some manual act , either to the person or to the possession , see ed. . . a. and . ed. . . b. and so he concluded that this action is not maintainable , and that judgment ought to be given for the defendant for the causes aforesayd . this case was argued again by nicholls serjeant for the plaintiff , and by dodridge the kings serjeant for the defendants , to the same intent , and it was urged by dodridge , that the patent containes three several expresse grants , which are distinct grants in themselves , as there be three distinct severall patents , though they have but one parchment and one seale , and if the king grant the office of parkship of two parks by one self same grant , if the patentee be disseised of them , he may have several assises , though that it be but one self-same grant . and he agreed that the words , officium predictum , in the . grant shall be intended officium predictum , and so supply the defect in the second grant , if it were not limitation of the estate in the second grant , but for that , that the second grant was perfect in it self , there need not of necessity any such construction , and that these words shall be referred to the last words , appeares by the last words of the habendum , that is , cum vadis & feodis , eidem officio , aut ratione ejusdem officij , and these relatives are exposition accordingly . and to the objection of the clause of assistance in the end of the patent : he answered that if the grant were ill and void in it self , this clause doth not supply that . for this is but notification to the officers of the queen , that they should be attendant to the said earl. for though that the intent of the queen was , that the earl of hutland should execute this office by deputy , yet this intent shall not make the grant good , for though that the intent of a common person be apparent within the deed , yet this intent shall not make a voyd grant good , h. . h. . h. . . grant to . et heredibus , with warranty to them and to their heirs , this clause of warranty , though it were the intent of the parties apparent , yet it was not sufficient to make the grant which was voyd good , and so it is in h. . . abbot by his deed in the first person grants a tenement , and the grantee in the third person , renunciavit totum commune quod habuit in uno tenemento : and though that in this grant the intent of the parties is apparent , yet this intent shall not make the grant which is void in it self to be good . so if a man makes a lease for life to the husband and wife , and after grants the reversion of the land that the husband held for tearm of life , that grant of the reversion is void , though that the intent was apparent , ▪ edw. . grants . and so in patent of the king , grant to a man , and heredebus masculis suis , is void , though that the intent also is apparent , that he should have an estate tayle , h. . b. estates but admitting that the grant may be supplyed by the last words , that is , that in the last grant the words are officia predicta , and in the clause of assistance , yet these words may be supplyed , for there are two other grants , in which there is expresse mention that the patentee may exercise it by deputy : and so the words shall have full interpretation , reddendo singula singulis . and hee conceived that the writ shall abate for that , that it contains vi & armis . and also the declaration ; for the jury have not found any disturbance at all . and he agreed that in some cases , trespasse vi & armis well lyes , as it is fitzh . na. bre. . . as where it is actuall taking , ed. . . edw. . . where trespasse vi & armis is maintainable against a miller for taking of toll against the custome , for here is actuall taking , and r. . . hosteler . in an action of trespasse , vi & armis against an host , for that , that certain evill persons have taken the money of the plaintiff , and good . but where there is not any actuall taking , there the writ ought not to containe vi & armis , for , for not scowring of a ditch , or stopping of water , as it is ed. . . but for casting of dung into a river , action of trespasse vi & armis lyes , h. . but for burning of a house it doth not lye vi & armis , ed. . . and so for turning of water-course , h. . . but in this case there is but disturbance with a word , and commandement to hold a court , and no court held , nor no proclamation made , and so no disturbance at all ; edw. . . one hath the office of a parkership , and another man was bound , that he should not disturbe . and in debt upon the obligation he pleaded that the obligor hath threatned to disturb him , and adjudged that this is no breaking of the condition , for there is no disturbance : and in ed. . . and . quo minus by jeffery scorlage , where the king grants to the mayor of southampton the customes of the same towne , and in quo minus for taking of them , it was adjudged that words are no assault , but there ought to be an act done . but in this case is nothing found but words , and no act done , but it is found that after the defendants held the courts . but that doth not appear if it were against the will of the earl of rutland or not , and so concludes that the action is not mayntainable . and this case was argued again in trinity tearm next ensuing by the justices , danyel being dead , but i was not present at the argument of foster and warburton justices : but i heard the arguments of walmsley justice , and coke chiefe justice . and first walmesley conceived that the grant was good , and that the earl of rutland by this grant might exercise his office by deputy , and this only in respect of the quality of his person , for the patentee is a noble man , which hath been employed as an embassador of the king into other realms , and this grant of this office being amongst others , varies from them ; for this wants the word , exercendum , which is contained in the others : and also the office of a steward is too base for an earl to execute , for the steward is but as a clark , and not a judge , for he shall not be named in a writ of false judgment , nor shall hold plea of any actions but under . s. & for that it is not fit nor convenient that an earl should exercise such a bas office in person . for if recovery here be pleaded , it shall be tryed by the country , edw. . and the steward shall not give judgment , but the suitors , and no tryall shal be by verdict , but by waging law , and the fee of the stewardis but a d. for every plaint . and for that it was not the intent of the queen that the earl should exercise such a base office in person , and her intent is apparent , for that , that the word exercise is not contained in the patent . and the intent of the queen is to be considered , for the other offices are fit to be executed by the earl : for the exercising of them is but a matter of pleasure , as in hunting in the forrests and parks of the queen : and for that if these grants have not contained words of deputation , the earl ought to exercise them in person , according to littleton . and noble men are not to be used as common people , for they are not to be impannelled of a jury , and capias doth not lye against him , by which he cannot be outlawed , and for that he shall not be bound to sit in such a base court , as this base court is : and all this matter is wel declared and expounded in the last clause of the patent , where the words are , et ulterius volumus & mandamus quod omnes , &c. sint intendentes & auxiliantes , &c. where the words volumus in patents of the king , to amount to as much as concedimus , or a covenant , which is all one with a grant , as in h. . the king releases all his right in an advowson , nolentes , that the patentee shall be grieved or disturbed , and adjudged that this shall amount to a grant , and so the word volumus , in the principall case : and also he conceived that the action is well maintainable , vi & armis , as quare impedit , for disturbance by word , or presentment by word . and it is also found that the defendants did take all the profits , and that the deputy of the plaintiff came to the usual place where the court was kept , and that could not be intended to be out of the mannor . and so for these reasons he concluded that judgement should be given for the plaintiff . and coke cheife justice argued to the same intent , that is , that the plaintiff ought to have judgment . and first he conceived , that the patent is good , notwithstanding the uncertainty , that the mannors are not named in what counties they are , either in england , france , or ireland , for the mannor is named very certain , by which it may be granted though it be in the kings case , as it appears by h. . . where the king grants all mannors , messuages , &c. which were parcell of the possessions of i. s. attaint , and good . and such grant was made to charles brandon duke of suffolke , and adjudged good , though that the person of a man is more incertain then the mannor , & yet , id certum est quod certum reddi potest . and ed. . . in the abbot of reddings case , where a grant was made to the abbot and his successors , that the prior and covent shall take the profits in time of vacation , fitz. na. bre. . b. and ed. . . the king grants to the queen the barrony , and all mannors , &c. till iohn of gaunt be able to govern himselfe , and that shall be intended till the law intends him able to govern himself , and mannor is very certain , of which a view shall be awarded . the second exception which was taken to the grant was , for that , that it was to take effect at the ful age of the earl. and after it is recyted in the patent , that he was of full age before the making of the patent , and so by consequence the patent is to take effect from the time that it was past : and to that he said , that it shall be intended to the profits of the office only , for it appeares by the patent that the queene had granted it to another during his minority : that is , the office . and to the third mattter , that is , if hee cannot make a deputy , then he hath forfeited the said office , by the not using of it . and to that he said , it appeares by waltons case , eliz. dyer , fol. . that if a man grants a fee , pro concilio impendendo , or keeping of courts , the fee shall not be forfeited without speciall request to the patentee to give councell , or to hold his courts , for hee doth not know if the grantor will have his courts held or not : and so it is h. . . brewens case , where it is also agreed , that it shall be no forfeiture of an office without speciall request to hold the courts , or to give councell : but in the case of the queen otherwise it is , for she ought not to make demand in case of rent nor condition , though that it be within the statute of . h. . and yet it was argued in sir thomas hennages case , that if the king make a lease for years upon condition to cease ; this shall cease without office upon the breaking of the condition , but a lease for life shall not cease without office , though that the condition be broken : and so if the king grants an office for life , this shall not be avoided without office : and he doubted the case of the lease for yeares : and also he agreed , that the grantee of a stewardship , cannot make deputy to exercise his office , without speciall words in the patent : but if the office be granted to him and his heires , or to him and his assignes , it is suf●●cient without other words to make a deputy : and also he sayd that the word steward , is the name of an office , and is derived of steed and ward , which are saxon words , and intend the keeper of the place , which the party himselfe ought to hold ; and it appeares by cambdem and lambert : and so the word senescalls also signify , for this is but a custos sive officiarius loci : see fleta liber . chap. . senescallum providebit dominus circumspectum fidelem , modestum & pacificum qui in consuitudinibus , &c. & jura domini sui teneri , &c. quique balivos suos instruere potest , cujus officium est curia maneriorum , &c. and a deputy is a person authorised by the officer in the name and right of the officer , and for all that he doth the officer shall answer , for he is but as a shaddow of the officer : but assignee is in his own right , and he shall answer for himselfe , and forfeiture by assignee of tenant for life , shall not be forfeiture of the reversion , . h. . and he agreed that a marshall , steward , constable , bayliff , and such like cannot make deputies , without speciall wordes in the grant , as it appeares , . h. . . ed. . . ed. . . . and . . ed. . nevills case in the com. and littleton : and to the exceptions which have been taken to the writ and count , he saith that an action of trespasse , which is founded upon the case , doth not lye , vi et armis , where the point and cause is action , is supposed to be made vi et armis , and for that he takes difference between . causa causans , and causa causata , for where the matter which is supposed to be done vi & armis , is not the point of the action : but the cause of the action there lies very well vi & armis : but wherein the point of action is supposed to be made vi & armis , there the writ shall abate : as if a man brings an action of trespasse for casting dung into a river , by which his land is drowned , in this case an action of trespasse upon the case , vi & armis lyeth very well , for here the casting in of the dung , is but causa causans , and the drowning of the land is causa causata , . r. . and so disturbance to hold a leet , by which he hath lost his offerings . r. . . and the earle hath election to have trespasse or assise , though it be not manurable : as if a man prescribe to have seven pence of every brewer which sells strong beer , for disturbance to have the seven pence , action upon the case lyes , for this disturbance is dissesin . ed. . . . ed. . . . ed. . . . r. . action upon the case . and to the objection which hath been made , that disturbance found by the jury , is not the same disturbance , which is mentioned in the count , for in the count the disturbance is supposed to be made vi & armis , but the jury do not find any distubance to be made vi & armis : but this notwithstanding , it seemes that the count is good : as if a sheriff enters a franchise and executes a writ , this is disturbance , and action upon the case lies : and so in quare impedit : and also he sayd , that the earle cannot make a deputy but by writing , as it is resolved . h. . br. deputy . where it is sayd that deputation of an office which lyes in grant , ought to be made by deed and not by word : but here the jury have found , that the earle hath made his deputy , this shall be intended in lawfull manner , and cannot be but by writing : and also he agreed that the habendum mentioned in the third grant , shall extend only to this grant , which is his proper grant , that the office of the habendum : and it appeares by wrotsleys and adams case , comment . . that the office of habendum , is to make certain ▪ the estate and not the thing granted , for this is the office of the premisses of the deed : and if the habendum in the third grant , had had reference to the second grant , this would make the grant void : and in grants of the king other construction shall be made , as it was adjudged in the court of wards , michaelmasse . and , eliz. between brunkar plaintiff and robotham defendant , where the case was , the king hen. the . had two mannors , whereof diverse lands of one mannor extended the other mannor , and then the king granted one mannor and all his lands in the same mannor , nec non omnies & singulas terras , &c. in the same town , and adjudged that the lands which were parcell of the other mannor , which was not granted , passe by this grant , though that they are in the other mannor , in the same town , and he denyed that the words precipientes & volentes shall be taken as a grant , for they are not spoken to the patentee , but to other officers , which are strangers to the grant : but if the thing granted had been a chattell , that a covenant might enure as a grant , and . eliz. dyer . . the king phillip and queen mary , granted for them and their heires and successors , to a. b. that he and his factors and assignes might tavern , and keep a tavern , &c. commanding all mayors and sheriffs , &c. and other officers and subjects and their heires and successors , to permit and suffer the said a. b. during his life to hold and use a tavern , and to sell wine without impeachment , and it seemes that the grant is void , for that that there is not any time limited , for how long it shall indure , and the mandate in the last clause shall not make any limitation , , for by the death of the prince this altogether ceaseth , for omne mandatum morte mandantis expirat : and for that all proclamations made in time of the raign of queen eliz . cease and determine by her death : and to the person of the earle , he said that it was a maxime , that honour and order shall be observed , and that was a common saying of the said queen , and for that it was not her intention , that this maxime should be broken , and that the said earle should exercise the said office in person , but she intended the said earle should overlook the said mannor , and place here a sufficient able man to exercise the said office , because he should answer , for the misdemeanour of such a deputy is the forfeyture of the office , and he saith that the dignity of an earle , was the most high dignity in this realm , that any subject doth possesse , till the . ed. the black prince was the duke , and aubry de vere the marquess in the . r. . and beamount the first vicount in the time of h. . and none of these dignyties are above an earle in degree , but only in precedency , for bracton lib. . chap. . saith , quod comites dicunter a socitate , quia comitantur regem : and in ancient time none were made earles but only those which were of the blood royall , and this is the reason that they are called consanguinij regis , and also they may be called consules a consulendo , tales enim regis sibi associunt ad consulendum & regendum populum dei : and at their creation the king gives to them a robe and cap , which signifies councell , and corronet , which signifies the greatnesse of his blood and honour , and also sword , vt sit in ntrumque tempus , as well ready for war as peace : and for that it should be unfit , that one of such honour , state , and dignity ; should be imployed in holding of court barons , and there sit to enter plaints , and have a peny for every plaint for his paines , and to make copies and such like base imployments which are vividae rationes , which was not the intent of the queen , that he should exercise the said office in person , and the law requires conveniences in all grants , as in . and . h. . one licensed a duke to come and hunt in his park , and the duke came with his servants and many others of his retinue , and hunted there , and it was adjudged that the grant was sufficient , to warrant his hunting in this manner , in respect of the conveniency , for it is not fit and convenient that the duke should go alone , and . ed. . . the bishop of carlile sued the executors of his predecessor the ornaments of the chappel of the sayd bishoprick : and then recovered , and though that the sayd chappel was in the private house of the sayd bishop , , yet it was thought fitting , that such chappel should be adorned with convenient ornaments , and that these ornaments should go in succession to the successors , and not to the executors , and if conveniency be so required in all these cases , then by the like reason such inconveniency shall not be admitted , that the earl should be clark to suitors as every steward is . and for that he conceived that the grant is good ; and that the sayd earl may exercise this office by a deputy , as well as if a common person grant an office of fostership to the king , he may exercise that by any party , or grant it over , though therebe no words of deputation in the grant , and this in respect of the quality of his person , and in many other cases an earle or another noble man shall be priviledged , as in h. . a noble man shal not be examined upon his oath in account , and ed. . . he shal not be sworn upon inquests , which is to serve god and his country register . and if a common person be in debt to me a hundred pound , i may have a capias and arrest his person for this debt , but if the king create him baron or earl , then his person is so privileged , that that cannot be attached for this debt , and this is without wrong to me ▪ as it appears by the countesse of rutlands case . coke ; and if a baron be returned of a jury , and if issue be taken , if he be a baron or not , this shal be tryed by record whether he be a baron or not , h. . . assise . ed. . . register . and in case that one common person hath any office , which he cannot exercise by a deputy , yet if he be imployed in the kings service , as if he be made ambassador out of the realm , or other such imployment , he may during his absence make a deputy , and this shal not be forfeiture of his office , and an earl in ancient time was not only a councellour of the king , but by his degree was prefectus sive prepositus commitatus , as it appears by cambden , . comes prefectus satrapas , which is prepositus comitatus , and was in place of the sherif at this day , and when that he was sherif , though that he had the custody of the county committed unto him , which was a great trust , yet then by the common law , he might make an under sherif which was but a deputy , the like holinsheads chronicle . amongst the customes of the exchequer , he called the under sheriff senescallus , which agreed with the definition before , for he held the place of sherif himself , and by the statute of westminster . chapt . . it is sayd that vice comes est viccarius commitatus , and if a barony discend upon the sheriff , yet he shall continue sheriff , . eliz ▪ dyer and britton . if a rybaud strike a baron or a knight , he shall loose his land : and tenant by knights service , may execute it by deputy . . ed. . littleton : and if it be so in the case of a sheriff , which hath the county committed to him , that he may make a deputy by the common law , upon that he inferred , that the steward which hath but the mannors of the king , committed to him , that he may make a deputy : and also he said that the words in the last clause , that is , ( volentes & precipentes ) that the officers and the subjects should be attendant , expoundes and declares the intent of the queen , for the words are ; omnibus premisses , and the grant of the office of the stewardship is one of the premisses , and so he concluded upon these reasons , that judgement shall be given for the plaintiff , and that the grant was good , and the action wel maintainable : and o● this opinion were warburton and foster , justices : and judgement was given accordingly ; this trinity tearm . jacobi . and coke cheife justice remembred a report , made by him and popham cheife justice of england , upon reference made to them , that this patent was good , and that the earle of rutland , might exercise this office by deputation , and he conceived , that there were other words in the patent which were found by the jury , that the said earle should have the said office , cum omnibus juribus & jurisdictionibus , &c. as full . &c. as any other patent hath been had , and withall the appurtenances , and it seemed that a former patentee had power by expresse words to execute that by a deputy , and he conceived though these words adeo plene &c , do not inlarge the estate , yet this inlargeth the jurisdiction of the officer , as in . ed. . . grant is made by the king of a mannor , to which an advowson is appendant , adeo plene , & tam amplis modo & forma , &c. and these words past the advowson without naming that , and he said it was adjudged hillary . eliz. in ameridithes case , where the case was , the queen granted a mannor , adeo plene & intigre & in tam amplis modo & forma , as the countesse of shrewshury or any other had the same manno , r and queen kathrin had the same mannor and diverse liberties with it of great value , during her life , and adjudged that these liberties should passe also by this patent by these words , and so in the principall case , if the former patent had been found also by the jury , and so was the opinion of popham and him , and was certified accordingly . finis . a table of the second part. arch-bishops jurisdiction , , . . admiralties jurisdiction , , . ▪ , . . . . . arbitrement satisfaction , what . . assumpsit , , . . arrianisme , one committed for it , . assets , . almony , . apurtenant , what shall be said , action sur case by a commoner for words , . . . . . avowry the whole plea , , . agreement , what , account , audita querela . . . atturnment good by one under age , where and why . award void . age not allowed in dower . administration repealable . accord with satisfaction good plea , where , where not . attorney ought to finde baile in an originall , not bill . action sur assumpsit . assu●psit against an executor where maintainable , assets in formedon , what , attachment , . assent to a legatee , ayd prayer , attachment for contempt of the court , accessary null , unlesse there is principall , assignment of an estate suspended , assise of novel disseisin , abatment of brief per entry , abatement de facto , and by plea differ in what , agreement and arbitrement good pleas , where , agreement by word to keepe backe tythes , admiralls commission for measuring of corne , administration during minority of &c. atturney brings debt for trees . . arbitrement . . . arrest of judgment . . acts what to make an executor de seu tort . . attachment of priviledge for an estate against the marshall &c. . assise where it may lye , sans view , . assise , the recognitors challenged , ibid ajournment of the tearm . . annuity or writ of covenant where . arbitrement , submission , and revocation . approvement of common , . account . . award submission , . arbitrement , arbitrement who it binds . assise del office . b bishop not displaceable . . baron alone cannot sue for not setting forth tithes without the feme proprietory . ballast granted to trinity house a monopoly . . baron and feme joyn where . . baron judgment against an executor baron how chargeable , pur sa feme , . . . bar in trespass , . by-laws , whom they bind . . to what extended . baron and feme take by intirity , where . . barwick whether part of england or scotland . . bayle banckrupt actionable . c chase an action not to be divided . cui in vita of copy-hold . custome for pound breach , . common recovery . copiholder shall hold charged , where . confirmation to a copiholder destroys common . consultation , after it no prohibition grantable upon the same libell . cape grand & petit , cause of a commitment traversable . count in trespass after the teste del breife . covenant to pay rent continuance ibidem . chellenge customes of london argued by the justices . . . . certiorari . capias ad satisfaciendum no satisfactory execution . . . . . copy-hold at common law . creditor may sue both heireand executor . court of equity not proper after judgment , . copyhold intayled . covenants direct and collaterall how they differ . condition repugnant voyd . condition in rei & in persona diff . . covenant where it lyeth covenant express and implyed , or in law , how they differ . copihold customes . covenant p. administrator . covenant joynt surviveth , ibidem & . church-wardens not interessed in church goods consultation awarded . challenge for favour . challenge to the array for action against the sheriff consultation awarded citation for defamation . charter part beyond sea where to be sued . citation out of the deocess consultation granted . clerk of a parish who shall nominate him . covenant destroyed . common recovery . custome . incertain voyd voyd for inconveniency copyhold what authority its nature and reason it is within the statutes which speaketh of lands and temements . it s severall customes , consuetudo sola quia non totaliter disallowed customes unreasonable voyd commission to the councell in wales caveat to a bishop coram non judice where commoner cannot have an action of trespass chase in possibility not grantable cinque ports the custome of taking the body of a man in withernam not good , , common of a copy-holder destroyed by confirmation corrody granted common law where voyd clam delinquens &c. covenant express doth qualifie covenant in law where , covenant in law not binding executors where copihold custome custome ought to be reasonable . custome in the isle of man custome of london custome of hallifax copyhold custome for a married-wife a devise to her husband court baron cannot inquire of felonies condition entire not to be apportioned challenge principal , what is & what is not cestercians their priviledge contra formam collationis to who given contract made in the straites of malico custome for thithing cpoihold anciently villinage corporation cannot be limited to a county certificate of a bishop charta de foresta d defamation sint ex officio debt sur judgement debt sur award , sur judgement , damages in dower devise of lands how taken that executors shall sell &c. devastavit where damages uncertain , therefore a fine certain for them voyd debt sur bill p. memorand . debt pur fees p. attorney devise of lands in cap. and the stat . of and h. expounded , , deed without date dower execution in it debt against an administrator dower ass . by the sheriff without jurors good damnum five injuria debt against an administrator debt sur oblig pur pf. cove . debt pur penalty of a by-law demurrer sur evidence ddvastavit debet & detinet for rent against an administrator , damages found intire , where it is error defendant entred after the habere fac . poss . executed dower recompence what delapidation suit for it dreprivation for drunkenesse debt p. executor against executors demurrer in ejectione firme discontinuance dower of tyth wooll devise of a lease devise to a corporation debt against an administrator during minolity debt against executors duress where distress a quasi action devise enures to bargain and sale where devise of a tearm e ejectione firme shall not abate if the tearm end estrepment election by an executor executor refuseth when too late when good ibid ejectione firme , , accord with satisfaction good elegit sur testatum extent sur stat . executrix during nonage ejectione firme election by an executor of a legacy executor de seu tort who executor de seu tort executors two joyntly sued one confesse the action good elegit sur testatum where it is necessary ejectione firme judgement in it estoppell escheate election implicit , error sur judgement in assise entry to abate an assise what , what not ejectione firme and a good bar where executor sued and also the heire executrix during nonage expresse covenant qualifies covenantin law exposition of usage estate increasing sur condition when it ought to vest or not at all error in ve . fa. and hab . corp . essoyn day is a day in term entire services casuall error in prolcamation error in writ of dower common of estovers f form edon lieth for copy-hold lands intayted forgery by scrivener who lost his eares for it franchise the lord shal answer for his baily feme covert what she may do sans boron . how punishable fealty seisin of ser . au . fine amended where feoffment to a son for valuable consideration forstaller , regrator , and ingrosser , who false imprisonment feme covert how she is bound by joyning with her husb . fine where it binds , fradulent conveyances within the stat . eliz. fraude what by the statute eliz . fyling a writ not materiall where formedon in remainder frank almoigne , gift to the templers ▪ formedon in discender fyne and ransome false imprisonment action for it fyne , error in it fyne by deb . potest : of an infant freedome of london how many ways obtained forfeiture of office of the chirographer g grants how construed grant of common extinct grantee of a reversion of what conditions he may take advantage of by the common law of what by statute h. . generall pardon gravi que●ela grant le roy when not good grant le roy incorporate a burough grant of a reversion grant del roy of alnage grant del portership grant pro concilio impendendo grant p. letters patents h hab . corp . granted to a br●wnist counted heretick his censure high commissioners their jurisdiction , , , , , , harriot unreasonable hab. fac . poss . the shereffs officers poss . the plaintiff refuseth harriot service habere fa. possessionem in ejectione firme hab. corpus and prohibition to the high commissioners hospitall of st. john of hierusalem hab. corpus granted husband and wife where they shall joyn , hab. corpus and prohibition harriot an entire service . issue imperfect ▪ justification for calling one perjured , judgment in debt preferred before a statute &c. innuendo shall not help the action jus accrescendi where it holds not information sur le statute ed. . chapt. jurors non concluded by pleas of the parties , information for extortion jeofailes stat . judgment arrested joynt tenants for years of a mill and grants &c. judgment in a writ of errour intendment where judgment sur breife abatest errour imprisonment unlawfull impropriation instruction for the presidents of wales judgment reversed for the outlawry only and confirmed for the other joynture , information sur stat . . h. chap. . for non-residency judgment voyd informer exhibits a bill in the star chamber imprisonment for a force when or not justices of peace and auditors ought to make record where and when ibid. indemptitas nominas jurors from two countyes infant levies a fine brings errour , k kings grant voyd for defect in recitall king is specially favored in the law kings patent how to be taken l license from the ordinary where license how many kinds , legates jurisdictions ibidem license to a copyholder when pleadable by whom limitation and condition their difference levant & couchant what lease by a dean livery voyd where libellous letters law of england of what it consists lateran councell concerning tithes license to appropriate license to a copy-holder lord of a mannor inclose the demesnes letter of attorney cannot be made by a wife london the custome for an inn-holder lease to determine upon limitation letters patents how expounded license in a forrest m marriage disagreed to at yeares of consenting &c. misnosmer in an obligation what it effects marriage a gift of all goods personall merchant sorts meale accounted dead victual within the stat . , ed. chap. . mayme is fellony modus decimandi murther sur thames where tryable maxime in law misnosmer of a corporation mainténance minister arrested marshall court its jurisdiction , , n non-suit nisi prius record amended . non-residencie the statute h. . expounded non-suit after verdict nisi prius by proviso for whom notice where requisite o ordinary cannot imprison ordinary may imprison a preist by . h. . . ibid obligation taken for a legacy incourt court christian ordinary may transmit office granted by a bishop occupancy where ● outlary in fellony was reversed offences exorbitant what obligation to performe covenants officers grad●all of the kings bench who obligation with condition against law or impossible outlary office exerciseable by deputy where , p prohibitionupon the stat . of h. chap. polygamy punishable where and how prohibitionjoynt and severallcounts prohibition surle stat . de simony for not settingforth of tythes prescription for tythes prohibition to the admiralty to court baron prison private and common prescription for inhabitants prohibition for common prescription none after consultation duly granted parson deprived for drunknesse proofe what priviledg out of higher court to inferiour payment directed how patent of a judge papist that not actionable possibility resonable where prescription and custome do differ wherein prescription prohibition to court christans prerogative del roy prescription for waife and stray paunagium quid prohibition good sans action pendecit priviledg determined processe from the admiralty prohibition not grantable after consultation possessio fratris plurality with dispensation pardon of one attaint pro false verdict prescription where good where not per que servitia prescription for beasts , sans number physitians colledge the authority physitans examined by whom priviledg of attorney allowed before the deputy marshall where partition without naming the parts good , where prohibition to the court of request copyholder prescribeth pro ligno combustibuli q quare impedit quo warranto quare ejecit infra terminum quare clausum fregit , where it lieth quare vi & armis where it will and of what , , r right to a spirituall office is temporall residency where ravishment against feme covert , , replevin , , right the writ remainder in a chattell release where not good release of one church warden shall not bind the other restitution to the heir of an accessory where the principall reversed the outlawry reservation of rent at michaelmas ten or dayes after reservation not taken strictly right to a tearm not grantable , revocation the power when suspended return of the sheriff where good , revocation of uses remainder of a chattell request where necessary release of dower by fine replevin re-entry after possession executed release return of writs granted to a corporation replevin release s statutes ecclesiasticall by whom to be expounded , surrender an attornment where scire fac . by baile scire fac . against an executor surrender by cognisor , &c. statutes pro bono publ . taken by equity , summons in dower scire facias for whom seisin of a rent p. vic●●nt submission awarded survivorship not a●ongst merchants statute penall scire facias speciall non-tenure a goodplea seisin to have assise what sufficient slaunder of an attorney what slaunder , , sheriffs power what vnder sheriff how limited ibid sheriff may limit the authority of his vnder sheriff sheriff committed for taking undue fees suit beg●n hanging another statutes how to be understood , , t tythes what lands are free of them p. , , , taxes for church-reparations and other like dutyes who are chargeable and how tithes not grantable p. parol unless by way of retainer tithes where discharged by unity of possession transmission of causes where tenant in dower disseised tayl its incidents by copyhold custome its creation and nature testibus lies what comes after no part of the deed town cannot be corporate without the assent of the major part &c trespass for a commoner good by the lord against the commoner trespasse for assault tales challenged tythes their antiquity tythes of what not payable trespasse for breaking of a close teste of a ven . fac . amended post verdict trespasse for imprisonment tenant pur view with warranty testatum where no writ issued tythes not paid for seven yeares of what tayl trade with infidells without licence u ven . fa. amended after verdict voucher p. attorney voucher sur bre . abateable the danger verdict speciall verdict doth not cast a man off an action of a higher nature vsage its exposition usitatum whom it doth advantage ibid variance what valuable consideration out of the statute vnity of possession uoluntas donatores how to be taken vexation unjust remediable how vniversity of oxford was removed for a certain time vniversity not locall ibid variance what w wales councell and presidents jurisdiction wast , , wittall who westminster chap expounded , , , writs warrantia chartae warranty to a tenant pur view warrantia chartae not upon two deeds writ of error wife joyn with her husb . in feoff . what shall bind wager of law finis . notes, typically marginal, from the original text notes for div a -e case for words , you are a bastard , tried by the countrey . judgement arrested , because the plaintiff did not averr that he was an attonrney at the time of the words spoken . case for words which d●d amount to but petty larceny . for calling one witch , no action will lie . if felony be committed , good cause to arrest one for it , but not to speak words to defame one . a feme covert cannot convert . action upon the casebrought upon a collateral consideration , and good . judgement reversed by writ of error , because sheriffs name was omitted on the venire fac . case for words not actionable . gase for words . a man shall not be punished for mistaking the law. case for words . the like . the like for words . judgement arrested , because the plaintiff omitted to shew in his declaration the words were spoken of himself . the defendants justification adjudged naught , because he justified for words that were actionable . to do a thing allowable by law is no conversion . the defendants justification amounted but to noguilty , and adjudged naught . judgement arrested , for want of certainty in the count. judgement arrested , for that the consideration was not valuable . case forwords , for calling an attourney bribing knave . judgement arrested being mis-tried . an inuendo . will not maintain an action . difference between a promise executory and executed : quod nota . non cul . pleaded where non assumpsit should have been pleaded , and adjudged a good issue . action of case for words , upon the statute , of . jac. against invocation of spirits . ehe imparlannce role supplied by the issue being perfect . judgement arrested , for not shewing the letters of administration . judgement arrested , for that the communication did not appear but by the inuendo . action of the case for calling a man mainsworn fellow . moved in arrest of judgement , because no demand alleadged , but not allowed . judgement arrested , for incertainty in the declaration . by a general pardon both punishment and fault taken away . promise upon condition , notice not necessary . nota. judgement arrested , for incertainty in the count , and for that the promise was made by an infant . justification for calling a man perjured , dis-allowed , because he was t convicted . action of the case will not lie for calling a currier barretor . for this word papist no action will lie , unless spoken of a bishop . nota. action of the case for double prosecution of a fieri sac . upon a non est invent . returned upon an outlary , where the party escaped , the plaintiff hath his election where to bring his action . judgement arrested for want of an averment . judgement arrested for the incertainty of the count. for collateral matters which are not duties , a request is necessary . the word witch will not bear an action . an implied promise where it is upon the reality will not lie , except upon a collateral cause . an indebitat . assumpsit for money ruled , good without expressing for what . action against the sheriffs of london for discharging one who was arrested , coming to defend a suit depending there . the court cannot discharge one arrested , except he be arrested in the face of the court. judgement stayed for variance between the count and writ to inquiry . release by the husband , pleaded in bar to an action brought by the wife after his death , for money to be allowed her after his death , and adjudged no bar. action for calling an attourney champertor . the roll mended after the record was certified by writ of errour , it being the clarks misprision . he is a forging knave , spoken of an attourney actionable . implyed words will not beare an action . trover brought by administrator , as of his owne goods , and adjudged good . demand and demall makes a conversion . the sheriff justifies by vertue of a process out of the exchequer , to levy of the occupiers of s. lands . s. arrear upon the said lands . common appurtenant cannot be divided . mis-triall , the venn being mistaken . judgement arrested , for a mistake of the jury . in consideration the plaintiff would agree , the testators son should marry the plaintiffs daughter , adjudged a good consideration . rents arrear , no plea in covenant . difference between covenant and debt to bring an action . difference between covenant and debt to bring an action . breach assigned in default of the party that never sealed the indenture of covenants . covenant lies against the first lessee upon breach of covenant made by the assignee . difference between covenant and debt . covenant upon a void lease is good . action would not lie , because if the covenant was not performed , piracy is no excuse to perform a covenant . judgement arrested for default in the declaration . a covenant in law shall not be extended to make a man do more then he can . a suit in chancery , no disturbance . judgement arrested for defects in the declaration . breach that one entred , and shews not by what title , and naught . release cannot be given in evidence upon a plea , that the defendant was never a receiver of the plaintiffs money . in account the process are sum . attaint and distress . in account two judgements , and upon a nichil process of vlamy lies . account against a baily local . the defendant may wage his law if the receit be per manus proprias . nota. in account the writ abates the death . nota. nota. nota. matter in discharge of the actions shall not be pleaded in bar. nota. nota. judgement in account upon a special verdict . misprision of the clerk amended after verdict . no tenant at the time of the writ purchased , nor afterwards , and if , &c. no disseisin . note upon the kings grant. view to be there where the office is performed . another writ brought , and hanging , a good plea in abatement . assise taken by default against harvey , and the other tenant pleaded in abatement of the assise , that there was a quare impedit depending . nota. the king cannot create an office to the queen , who may bring an assise . no costs in a non-suit in assise ▪ the court was denied a supersedeas , the surmise being onely matter in suit . nota. a writ of covenant brought against more then acknowledged , and prayed to be amended , and denied . lease made to one during the life , two if one die the lease is ended . nota. a case of jointure . nota bene . difference between tenant at will and sufferance . joynt debt and contract cannot have several pleas. nota. nota. nota. if i command one to do a trespass , an action will lie against him . wife not bound to perform covenants of the lessee . nota. no action for small tithes . administration granted during minority not within the statute h. . nota. ordinary cannot make a divident of themselves . legacy of land shall not be sued for in court christian . nota. for tithes . nota. nota. recitall shall not inlarge the grant. nota. money paid by an executor upon a usurious contract is a devastavit . proportiament of rent . no attornement necessary for acts in law. nota. for tithes . nota. note how far proof extends . nota , difference . nota. nota. nota. nota. copy-hold land extendable upon statute of bankrupt . being a member of the cinque ports will not free one from arrest . difference of things that are in prender and that are in render . nota. omission in awarding the venire of these words , quoad triand . &c. held good . local things shall not be made transitory . a tales prayed by the defendant upon the plaintiffs distring . in another terme , but denied . if chamberlain of chester make an ill returne , the sheriff shall be amerced . no distress in a court , baron but by prescription . actions upon penal statutes , not within the statute of jeofailes . nota. judges not meddle with matters of fact . nota. information against three , and two appear , may declare against those two . nota. return of a sheriff insufficient upon a statute merchant , for omitting , that he had no other lands , &c. nota. a statute first acknowledged shall be preferred before a judgement , afterwards retained . the case of villainage within the statute of limitation . nota in elegit . two inquisitions taken at several dayes by several juries upon one writ , naught . nota. all goods and chattels bound by the teste of the elegit , and cannot be sold afterwards . audita quaerela and bail put in in the chancery , and held good . the act of e. . for dissolution , reaches onely to such that are regular . nota. nota. nota. nota. deed of gift for things in action . supersedeas granted , because capias ad satisfaciendum was not returned . nota. nota. a juror who hath appeared , cannot be passed by , and to swear others . goods cannot be sold upon a levari facias , in a court baron without a custome . sheriff returned but . upon a venire facias , and naught . nota. judgement , that it was a good devise . the property is not altered , upon the sheriffs taking of goods upon a fieri facias , but remains in the defendant . nota. alien born no plea in a writ of error . nota. issue cannot be bastarded after death . nota. where the principal is omitted cannot be supplied by writ . nota. king could not grant precedency in publique things . nota. ancient demesne tried by doomesday book . the venire facias was album breve , and denied to be amended . lessee at will cannot grant over his estate . note , difference between tenant at will and sufferance . nota. one committed , bailed , being no cause expressed . attorneys name put out of the roll for a mis-demeanour . nota. nota. nota. writ of entry filed after the death of the tenant . ordinary to place and displace in the church . fraud shall never be intended , except apparent and found . nota. high commission nothing to do with matters of instance for tithes . nota. nota : master shall not be corporally punished for his deputies offence . nota. nota. nota. one at seventeen years old may be an executor . no new notice needs if the attorney be living . if no place of payment be in a will , must be a request . nota. warrant of attorney filed upon a motion , after writ of error brought , and error assigned . nota. warrant of attorney filed after writ of error , by order of court. attornement of an infant is good . an attorney ought to have no priviledge as on attorney . husband shall pay for his wives clothes , though bought without his privity . a mans wife or infant cannot be examined . one bond cannot overthrow the other . exceptions to an award , pretending the arbitrators had exceeded their authority , but adjudged good . judgement for the defendant , for insufficiency in the count. judgement ' for the defendant , upon a by-law . the defendant at his perill ought to make payment . if part of a condition be to be performed within the realm , and part without , ought to be triable here . defendant pleaded six judgements in barr , and two found to be by fraud , and judgement for the plaintiff . the sheriff cannot break open the outward door to do execution , but that being open he may break open any other . exception taken to the defendants plea. nota. debt lies for money levied by the sheriff , upon a levari . nota. nota. exception taken , because the venire facias was of the town , and not of the parish , but ruled good . creditor administred , and is sued , ought to plead fully administred generally . debt brought for . l. tr be paid at the return of a ship from new-found-land to dartmouth , onely . l. lent is not usury . plea made good by verdict . nota. judgement against both of the testators goods , and damages of him that appeared onely . nota. nota. if no time of payment in an award due upon demand . though two appear by one supersedeas , yet they may vary in plea. the imparlance amended after triall , upon the attorneys oath . nota. bene case . a servant hired to serve beyond sea may have his action in england . nota. nota. outlary in the executor , no pled . outlary in the testator in barr , adiudged naught . a wrong man of the same name offers to wage his law. lessor and lessee for years , one assignes his terme , and the other grants his reversion , grantee of the reversion shall have action of debt against the assignee . nota. nota. default of the clerk amended , and afterwards upon advice made as it was at first . a bill to pay money upon demand , must lay a special demand . amendment of issue roll by the imparlance roll. estoppell . repleader awarded . money due upon a mortgage payable to the heir , and not to the executor . money to be paid fifteen dayes after return , &c. he proving his being there , court divided which proof shall be , precedent or subsequent . condition that an vnder-sheriff shall not intermeddle with executions of such a value , held void . judgement arrested , because the whole matter laid was found , and part was not actionable . bail discharged upon the principals rendring his body in another terme after a case returned . quaere . an award good in part , and naught for part , and breach assigned in the good part , and held good . if the plaintiff be non-suit , yet no cost upon the statute of perjury . nota. amendment of the imparlance demed , after error brought . a thing out of the submission awarded , and void . nota. defendant wage his law upon a recovery in a court baron . a man cannot send his apprentice beyond sea , except he go with him . vpon a nul . tiel . record , though some variances , yet the debt and damages agreeing , judgement for the plaintiff . bond taken to appear in the court of request , void . return of the habeas corpus amended . debt upon two bils , and one not due , and tried for the plaintiff , and moved in arrest , the plaintiff released his damages , and had judgement upon the bill due . lessee of the vicars gleab-land shall pay tithes . nota. venire facias de d. or within the parish of d. or de parochia , good . scire facias upon a recognisance may issue out into any county . deprivation of a minister may be given in evidence . best to have damages severed upon two contracts . breach for not acknowledging a fine . nota. feossment of land in satisfaction of debt upon a single bill , held naught . a steward of a leet within the statute of e. . against buying of offices . one thing in action cannot be a satisfaction for another thing in action . vpon a request and none ready to receive , and after a request damages shall be paid from the request . nota. nota. nota. an almoner would have acknowledged satisfaction , and doubted . judgement against the plaintiff , for incertainty of his count. nota. judgement for the plaintiff . nota. because the first contract was not usurious , the latter shall not . no action of debt for soliciting fees. defendant pleads , the plaintiff was indebted to him , and he took administration , and retained his own debt in his hands . bailiff of a colledge claims the liberty of the university , but denied to him . special verdict . nota , well . appearance , though at another day the same terme saves the bond. demand necessary for a nomine penae . costs omitted in the roll , and error brought , and demed to be amended . nota. the venire facias mis-awarded . the defendant pleads , that be was ready to grant , and naught . no demand necessary . note this diligently . fully administred , no good plea by an administrator to a scire sacias to revive a judgement had against the intestate . an executor an assignee in law. nota. nota. nota. an executor by wrong shall not by his plea prejudice a rightfull executor . condition of non-payment of rent to re-enter , the rent was behinde , but before re-entry accepted the estate is confirmed by the acceptance . the defendants name mis-taken in the venire , and a new triall awarded . no costs against an executor . devise of the profits of the land it self . debt brought against an excutor after full age for goods wasted by the administrator during his minority . release of all demands , a good barr in rent not then due . judgement arrested for improper words without an anglice . the want of a bill not helped by the statute of jeofayles . to forbid no breach . the defendant pleads a plea by which he pretends the plaintiff to be barred in another suit , but no barr. one by his own election , cannot be executor for part , and not for part . tenants in common . severall debts . debt lies by him to whose use money is delivered . debt upon a statute of perjury , at a commission issuing out of chancery not ly . outlary pleaded in barr , and nul . tiel record pleaded , and in the mean time the outlary reversed judgement that the defendant should answer over . no escape lies against a sherif vpon a capias upon a recognisance out of the chancery . request to make assurance generally and good . appearance upon warning , and for default adjudged naught . action of debt upon the statute of e. . for tithes . sufficient to say the plaintiffe is proprietor without shewing the title . misprision of the clerk amended after triall judgement reversed by writ of error being in the disiunctive . the plaintiffe had no interest but 〈◊〉 rendring of the land. lessee at will cannot determin his will within the year but must answer the whole rent . the plaintiffe not bound to alleadge a speciall breach , when the defendants plea continues speciall matter . debt for flemish money , but demanded by the name of . l. english . if the obligor marry the obligee , the bond gone . judgement obtained by an administrator , and after administration revoked , and party took in execution , and delivered , because erroneous . to plead an appearance , and not say , prout patet per recordum , na●g●… nota. award void for the incertainty , for being the judgement of one it ought to have plainness and certainty . judgement obtained by president of the colledge of phisicians , his successor after his death , and not his executor shall have execution . assurance . tithe shall be paid of wood above twenty years growth , if it be not timber . variance between the obligation and count shall not be shewed after imparlance demand of rent must be at the place of payment . judgement reversed in an inferior court for want of this word dicit . want of an original after a verdict no error , but a vitious original is error . plea naught for want of a traverse . nota. plaintiff in debt for tithes need not be named rector in the plaint in the upper bench. tithes cannot be leased without deed , judgement reversec● for error in the judgement . if a suggestion in part need proof , and part doth not , no costs . judgement reversed for error in changing the defendants additions . action upon the statute for tithes , the statute mistaken , yet it being according to divers presidents ruled good . bill abated for not naming an infant executor in the action , although administration was granted during his minority . action upon the statute h. . of arrerages of rents . action lies not upon that statute for arrerages of copy-hold rents . action of debt brought upon a bill , for money received to another use . an executor of his own wrong cannot retain goods in his hand to pay himself . primo deliberat . shall not be pleaded without a traverse . if the plaintiff assign no breach he shall never have a judgement , though he hath a verdict . rent reserved at michaelmas or within ten dayes after , due at michaelmas . a judgement reversed by writ of error , notwithstanding a verdict , and the statute of eliz. executor shall not pay costs upon the statute of jacobi cap. . how a reservation for rent shall be construed . one must not plead in discharge of the obligation , but of the condition contained in the obligation . a contingent debt cannot be discharged . false latine shall not overthrow an obligation . a deed of gift good against him that makes it , notwithstanding eliz. and against his executors , and administrators . action brought upon an obligation to stand to the award of four , or two of them , award made by two good . debt . judgement arrested for nil shewing in what court the deed was inrolled . judgement reversed for want of these words , in a tales at assises , nomina jurat . &c. by a release of all demands money to be paid at a day to come , may be released before the day . if the defendant confess he hath assets , the sheriff may return a devastavit . action of debt brought against the sheriff upon an escape , for one taken upon a capias upon a recognisance , and adjudged that it would not lie . debt brought upon a lease made to an infant . one may take his executio● either against the principall or bail at election . an action of debt brought upon a bond , which was , obligamus nos , vel quemlibet nostrum , adjudged to be joint and severall at the plaintiffs election . action of debt upon an obligation to perform an award , and the breach assigned for exhibiting a chancery bill , and adiudged no breach . action of debt for tithes , the defendants time ended before the co●n carried , yet held good for the plaintiff . an action will lie against a stranger , that shall carry away the corn before the severance . dower may be brought against the heir or committee of the ward . nota. he in reversion received after default made by tenant for life . return of the sheriff adjudged insufficient being too general . no writ of error lies untill the value be inquired upon . implication not good in a surrender , though it be in a will. challenge because the sheriff married the daughter of the lessors wife , and held no cause . nota. how to execute a lease to try a title , the land being in many mens hands . originall against four , and count against . without a simulcum , and held naught . the intent of a will must be certain , and agreeable to law nota. how to execute a lease by letter of atturney a venire facias of the parish adjudged good . a mistake of the cursitor in the originall amended after triall . nota. though the defendants plea be naught , yet the plaintiff shall not recover , because he shewed not any title by his replication . the question is upon the statute of h. upon feoffements made by husbands during the coverture . a verbal averment shall not overthrow a will. the mistaking of the town not hurtfull in a will. property of goods cannot be in obayance . difference between prescription and custome . copihold land cannot be demised for three years without license or custome . record of nisi prius amended by the roll. concord with satisfaction a good plea in eiectment . misconveyance of process , what it is , and helped by the statute . a feme covert cannot make a letter of atturney to deliver a lease upon the land. when a demand shall be made to the person , and when upon the land ▪ a lease made to three for their lives , with a covenant that the land should remaine to the survivor of them for ninety yeares , a good interest in the survivor . a precise verdict makes the declaration good , which otherwise is naught . a demand of rent to avoid a lease upon a condition ought to be in the most open place . after an imparlance cannot plead in abatement . h. . . foxlies case . rep. . the day of a copihold of court roll traversed , and adjudged naught . houses in london passe by the delivery of a bargain and sale without inrolment . an ejectment will not lye de aquae cursu . a servant is a sufficient ejector , if he dwell with the pretended owner . he that is a purchaser of copihold hath nothing in it , nor can he surrender to another before admittance . how an abatement shall be traversed . e. . acr . e. . . acr . the bill amended after a writ of error brought and before the record was removed . where the prenomen destroyesthe quantity inthe declation . where words in a declaration shall be voyd , rather then the declaration shal be voyd . nonage shall be tryed where it is alleadged , and not where the landlyes . essoin lies in a writ brought by journes account , although he was essoined upon the first writ . by deed an implicationbe intended . nota. by the name of a mannour the land in all the villiages will pass . nota. action brought by the servant in his own name , part of the goods being his masters . nota. nota. the record of nisi prius amended upon motion . the process in partition . error in partition upon the first judgement . defendant pleads he had brought a writ for the same land , and adjudged no plea. process in a quare impedit . exception taken to the venire , and over-ruled . severall quare impedits , may be brought against severall men . admittance of a resignation by fraud , takes not away the kings title . the state is determined by the death of tenant in tail. a presentment by words , good . nota. a subsequent debt to the qu. related to award an assurance made upon good consideration . the king hath lost his presentation by the clerks death . defendant pleads another writ depending against the said bishop , & good . the bishopsplea shall not prejudice the incumbent . nota. liberty to make leases . a devise for years in confidence , the condition must goe to the estate , and not to the use . the scisin of rent reserved upon a feosment within the time of limitation not to be traversed . nota. the beast of a stranger shall not be distreined for rent except they have been upon the land some time . demand not necessary in a replevin for rent . nota. exct●tion to the advowry too late after judgment entred . replevin not within the statute of . iac. iudgment arrested , for that the plea was naught . nota. nota. the plea naught for want of amendment . amends made to the bailiff not good . if one inclose part , it is an extinguishment of common for cause of vicinage . avowry amended after entry by consent . one of the juro●s names mistaken in the pannell of the return , and amended upon the sheriffes oath , that he was the same man. if two men distrain one mare , and both have judgement , no return . court baron in order to the mannor . nota. nota. a lease for life to three to hold successively , naught . the pannell of the habeas corpus amended upon oath . nota. atturnment not necessary for a copy-holder . demand necessary for a nomine pene . common appurtenant and purchase part , the common is gone , but not if appendant . nota. nota. demand of rent service upon the land sufficient . nota. a commoner may take the cattell of the lord damage fesant . judgment arrested for not shewing in what place the messuage did lye to which the common did belong . common , when the field and acres unsown the sowing of parcell shal not debar him of his common in the residue . when a deed is perfected and delivered as a deed , one agreement after pleaded in defeasance thereof , and when the agreement is parcell of the original contract , it may be pleaded . the defendant in his demurrer ●nswers not the whole declaration , and judgement reversed . the mistake of the day of an act by way of bar , not prejudiciall . a confession after an issue joyned , refused . a constable cannot detaine one , but for felony . marshalsey hath no authority to hold plea in debt , except both are of the houshold . judgment before a wrong officer erroneous . the court could not mitigate damages in trespass which was locall . the defendant justifies the imprisonment by the command of the maior of london , and naught . just . of peace cannot command his servant to arrest in his absence without warrant in writing . if a servant be beaten , & dye , the mr. shall not have an action for the losse of his service . declaration shall not abate for false latin. a man cannot prescribe to be a justice of the peace . if a book that ought not be given in evidence , the court above cannot remedie it , except it be returned with the postea . a release to tenant at sufferance , void . commoner cannot chase the lords cattell , if the surcharge be common . the statute of eliz. for non-residence a generall law . where husband and wife shall be joyned , and where severed in action . the venire facias vicious , no damages in partition . if the jury find a man guilty in trespass for a foot , where it is layd in an acre , good enough , and so in all actions where damages onely are to be recovered . nota. error assigned because in trespass nothing was entred of the fine , &c. where it was a continued trespass , and part of it was layd to be after the pardon . nota. nota. if the verdict find the tenure in substance , though not in manner and form , it is good intrespasse . difference between replevin and trespass . in a writ to enquire of damages , the plaintif is not bound to prove the property of goods , but the value only . where of his own wrong without such cause shall be a good issue and where not . the defendant prescribed for a passage over land , and naught , it should have been for a way . nota. if the lord cut the wood in which the commoner hath estovers , he shall have an action of the case , but not an assise . nota. nota. nota. an action will not lie for the counter-part of an indenture without a speciall grant . nota. a man cannot justifie the digging of a mans ground in hunting a badger . nota. nota. one venu out of two places in the same county . whether a copyholder may lop the trees growing upon his copy-hold , and held he might . the copy-holder is in by custome , which is above the lords estate . the copy-holder shall have trespas upon the case against the lord for cutting down of trees . nota. nota. nota. nota. nota. nota. waste in the tenuit for digging of sea coals . notes for div a -e custodes brev. capital . prothon . sedi ' prothon . try ' prothon . cliri ' warr. cliri . argenti regi . cliri . error . notes for div a -e cic. lib. . de invent. rhet. notes for div a -e prohibition upon the statute of . h. . chap. . prohibition to the high commissioners ▪ high commission . prohibition . joynt prohibitions and severall counts . prohibition upon the statute of symony , upon the stat . of . eliz. prohibition upon the statute of , h. . for the dissolution of the hospitall of saint johns of jerusalem . for not setting forth tythes . husband sue only . prohibition to the cort of requests . against forreiner for ornaments for the church and for sextons wages . admiralty . contract for retaining of tithes . admiralty . prohibition . at the archess discussed in right of office. prohibition . admiralty for staying ships for ballast . high commissioners and their power in ministring o●th and taking obligation . high commission clandestine marriage . admiralty co●rt , if a thing done beyond sea shall be there tried . agreement by word ●…p back tithes . where a prohibition shall be granted without action hanging . high commissioners alimony , adultery . houghton . shirley . barker . court of admiralty's jurisdiction . admiralty . prohibition . modus decimandi . prohibition to a court baron . replevin . . executors one refuses . waste . . executors , one refuses . bargaine and sale upon cond●… ravishment of ward . mich. 〈◊〉 . jacobi . rot. . common of pasture . trespasse . ejectione firmae . common recovery . judgement in debt . accompt . see the beginning . fol. debt by executor . administrators during the minority of the executor . action upon the case for words . replevin , attornement of tenant , being under age of . yeares . shirley . harris . harris . montague . hutton . surrender after statute acknowledged . executors sued and also the heire . court of equity . debt upon a bill . harris . shirley . fealty gives seisin of all annuall services . atturney brings action of debt for fees. survivor doth not hold amongst merchants to have all . award void . action upon the case for words . devise that executors shall sell land. a towne incorporated with the consent of the greater part . action on the case for slander . action upon the case for suing one in a court which hath no jurisdiction . prescription for common for beasts without number . priviledge out of higher court. fine amended . feoffinent to a son and heir for a valuable consideration . avowry . teste of a venire facias amended after verdict . ejectione firme . ejectione firme . dodridge . houghton . replevin , grant without date . obligation . accompt . information . dodridge hanghton . montague . dodridge . dower . debt against administrator . commission to the councell in wales . caveat to a bishop . if administraon to the next of blood cannot be repealed . action for words . trespasse for breaking a house and taking a cow. haughton . barker . barr not good . copy-hold intailed . extent upon a statute . summons in dower patent of a judge of the common bench . action upon the case for slander haughton . barker . periured actionable . trespasse for imprisonment dodridge . hutton . coram non judice . judgement void . shirley . wynch . foster . arbitrement : lease by the dean and chapter of norwich . hutton . haughton . office granted by a bishop . assumpsit . wilt of right . haughton . nicholls . dower of tit●e of wooll . attachment . executrix during nonage . nicholls . harris . copy-holder . harris . dodridge . coke . replevin . waste . informer . lybell . debt against administrator . copy-hold . coke . revocation of uses . dodridge . nicholls . dodridge . nichols . wynch . warburton . [ coke . ] common recovery . obligation to perferme covenants . arrest of judgment audita querela . wast . estrepement awarded . ejectione firme . refusall . lord of a mannor inclose the demesnes adjoyning to the common . warrantia charte . dodridge , nicholls . devise of a lease . dodridge . harris . assent to a legatee . remainder of a chattell . sherley . debt by obligation . request is necessary for his rent , though that he have a bond for performing covenants . nichols . debt ▪ wynch . warburton . debt against executors . davis . what acts doe make an executor , de son tort , what not . barker . warburton . wynch . trespasse . harriot . nicholls . harris . coke . eliz. dyer . a. wrensfords case accordingly . warberton . wynch . release . cinque ports . tenant for life with warranty . nicholls . haughton . wynch . warburton . ayd granted . coke . wynch . verdict uncertaine . falkland , what is so called . warburton . coke . quod non occupantur conceditur . debt against administrator for rent in the debet and detinet . chibborne . detinet onely . . heire charged in debet and detinet . . towse , crook , and harris . joynt covenant shall survive . copy-holder shall hold charge . error . elegit . testatum where no writ had issued . confirmation to a copy-holder , destroys common . expresse covenant qualifies covenant in law. prohibition . defendant re-enters after possession delivered by habere facias possessionem . custome among copy-holders . nonsuit after ▪ verdict . reservation of rent , michaelmasse , or ten dayes after . grant of common extinct . exposition of usage . ejectione firme . errour . abatement of a writ by entry . markhams grant. earle of rutlands patent . challenge . earl of rutlands patent . challenge . abatement . errour ? variance . seisin . abridgment of the plaint in assise . yelverton . fenner . challenge prin . flemming . what matter shall be assigned for error after judgement . variante . challenge . seisin . misnaming of a corporation . walter yelverton . fenner . flemming . prohibition . prohibition . a married wife cannot make a letter of attorney . replevin . warburton justice . walmesley . re-entry after possession executed . slander of attorney . grand cape petit cape . waging law. release . inn-keeper in london . action of false imprisonment . serieant harris the younger . walter walmesley . coke . priviledge . assise . view . coke . walmesley . challenge . errour in a fine . barwick . returne of writs . idemptitas nominis . fine . infant . tayle . maintenance . habeas corpus . prohibition . trespasse for slander . party jury of two counties . action upon the case for slander . errour . covenant for rent . continuance . assumpsit . consideration . debt against executors . errour . ve. fa. & hab . carpus . formedon in remainder . challenge . partition . dures . action upon the case for slander . prohibition . will. devise . priviledge . postea . adjournment of tearm infant levies fine brings errour action upon the case . action upon the case . debt for obligation . hutton . dodridge . court. sheriff committed to the fleet. grant of a rent . priviledge of london . harris . hutton . where the owner of wood may inclose . hutton . arbitrement . submissior . revocation . devise and grant ●enures to bargaine and sale. harris . lease to determine upon limitation . grant of the king that the burrough should be incorporated . bayle . suit begun , hanging another writ . casuall intire services . harris . nicholls . foster . dauiell . warburton . walmesley . coke . trade with infidels without , license . prohibition to the court of requests . approvement of common . walmesley . foster . action upon the case for slander . bankrupt actionable . grant of reversion . error in proclamation . forfeiture of office of a chiroghapher . release . error in a writ of dower . copy-hold . certificate of the bishop . minister arrested . grant of the king of alnage . haughton . dodridges ▪ statutes , how to be understood , &c. account . devise of a teerme . award . submission . arbitrement . where the death of the defendant in execution shall be satisfactory . dodridge . certiorari . outlawry . hutton . foster . debt upon escape against whom . warburton . land extended at too high rate . walmsley . coke . harris . haughton . foster justice . warburton . walmsley . coke . charta de foresta . assise office. trespasse . estovers . boote , its signification , &c. nicholls . walmesley . coke . fee when forfeited . trespass . grant le roy. an exact catalogue of the common and statute law books of this realm, and some others relating thereunto bassett, thomas, bookseller. approx. kb of xml-encoded text transcribed from -bit group-iv tiff page image. text creation partnership, ann arbor, mi ; oxford (uk) : - (eebo-tcp phase ). a wing b estc r ocm this keyboarded and encoded edition of the work described above is co-owned by the institutions providing financial support to the early english books online text creation partnership. this phase i text is available for reuse, according to the terms of creative commons . universal . the text can be copied, modified, distributed and performed, even for commercial purposes, all without asking permission. early english books online. (eebo-tcp ; phase , no. a ) transcribed from: (early english books online ; image set ) images scanned from microfilm: (early english books, - ; : ) an exact catalogue of the common and statute law books of this realm, and some others relating thereunto bassett, thomas, bookseller. broadside. collected by thomas basset, bookseller ..., [london] : . attributed to basset by wing and nuc pre- imprints. place of publication suggested by nuc pre- imprints. "be pleased to take notice. that f. signifies french law, and l. latine, the rest are english; and where there is any difference in the editions this mark * is prefixed." reproduction of original in the bodleian library. created by converting tcp files to tei p using tcp tei.xsl, tei @ oxford. re-processed by university of nebraska-lincoln and northwestern, with changes to facilitate morpho-syntactic tagging. gap elements of known extent have been transformed into placeholder characters or elements to simplify the filling in of gaps by user contributors. eebo-tcp is a partnership between the universities of michigan and oxford and the publisher proquest to create accurately transcribed and encoded texts based on the image sets published by proquest via their early english books online (eebo) database (http://eebo.chadwyck.com). the general aim of eebo-tcp is to encode one copy (usually the first edition) of every monographic english-language title published between and available in 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over a wide variety of subject areas, to reflect the true nature of the print record of the period. in general, first editions of a works in english were prioritized, although there are a number of works in other languages, notably latin and welsh, included and sometimes a second or later edition of a work was chosen if there was a compelling reason to do so. image sets were sent to external keying companies for transcription and basic encoding. quality assurance was then carried out by editorial teams in oxford and michigan. % (or pages, whichever is the greater) of each text was proofread for accuracy and those which did not meet qa standards were returned to the keyers to be redone. after proofreading, the encoding was enhanced and/or corrected and characters marked as illegible were corrected where possible up to a limit of instances per text. any remaining illegibles were encoded as <gap>s. understanding these processes should make clear that, while the overall quality of tcp data is very good, some errors will remain and some readable characters will be marked as illegible. users should bear in mind that in all likelihood such instances will never have been looked at by a tcp editor. the texts were encoded and linked to page images in accordance with level of the tei in libraries guidelines. copies of the texts have been issued variously as sgml (tcp schema; ascii text with mnemonic sdata character entities); displayable xml (tcp schema; characters represented either as utf- unicode or text strings within braces); or lossless xml (tei p , characters represented either as utf- unicode or tei g elements). keying and markup guidelines are available at the text creation partnership web site . eng law -- england -- bibliography. catalogs, booksellers' -- england -- london. - tcp assigned for keying and markup - spi global keyed and coded from proquest page images - megan marion sampled and proofread - megan marion text and markup reviewed and edited - pfs batch review (qc) and xml conversion an exact catalogue of the common and statute law books of this realm , and some others relating thereunto . be pleased to take notice . that f. signifies french law , and l. latine , the rest are english ; and where there is any difference in the editions this mark * is prefixed .     l. s . d. f anderson's rep. parts fol. f ashes tables to the law fol. f — tables to cook 's reports fol.   — the same in english º f — epieiceia º f — table to dyer º   — fasciculus florum º   argum. on the writ of hab. corpus   argument concerning the militia .   assize of bread º l aston's placita lat. rediviv . º   andrew's argument at his trial º f abr. book of assizes º   attorney of the common pleas   abridgment hen. . º   attorneys guide º   argum. of the prop. of the subject º   answer to pettyt and jani angl. facies nova º   arcana clericalia º   allen's reports fol. l bracton folio l — quarto f brooks abridgment , large folio f — small folio f — quarto   — reading on limitation º   — reading on magna charta º f — cases º   — the same in english º   blount's law dictionary fol.   bolton's office of a justice fol. l brevia judicialia fol. f bendlowe's reports fol.   bulstrode's reports , parts fol.   bridgman's reports fol. l brown's entries in parts fol. l brown's modus intrandi º   brown of fines and rec. º l brown's ent. cl. vade mecum º l book of entries the old fol.   bacon's cases of treason º   — charge º   — ordinances in chancery º   — post nati º   — elements common law º   — reading on the stat. of vses º   boon's exam. legum angliae º   brownlow's declarations , par . º   — judicial writs º   — reports , parts º   bagshaw's argu. in parliament º   bagshaw's right of the crown º l brevia selecta º f bellew's richard ii. º f britton º   book of oaths º   bridal's jus criminis º   sir bridgman's convey . fol.   book of rates º   blount's frag . antiq. º   babington's advice to jurors º   bankers case º   brief method of the law fol.   bridal's jus imaginis º   — spec. juris ang. º   — decus & tutamen º l coke's entries fol. * — comment on littleton fol. * — magna charta fol. * — pleas of the crown fol. * — jurisdiction of courts fol. f — reports ii parts fol.   — reports english par . fol.   — and parts of reports fol.   — declarations fol.   — of bails and mainprizes º   — reading of fines º * — copy-holder º   cotton's record fol.   — abstract of recor. º * cowell's interpreter ; with manley's additions folio   customs of normandy fol. * crook's reports , parts fol.   collection of ord. and decl. from march . to decem. . fol.   cook 's vindication of the law º   calthrop's customs of london º   — copy-holder º * reports º   collect. of remonstrances , votes from to . º . l clark's praxis in curiis eccles . º l — practice of the admiralty º   callis reading on sewers º   — argument º   crook and hutton's argument º * f crompton's jurisdict . of courts º f crompton and fitzherb . justice º   commisson with instruct . for compounding for idiots and lun . º   court of request º * complete clerk º   case of ship-money º   clarendon's orders in chancery º * clark of assize º l cowell's institutions º   — the same in engl. º   clark's vade mecum º * clark's guide , parts º * clark's tutour , º   carey's reports º   clayton's reports º   cary's vse of pleadings º * complete sol. entring clerk º * complete attorney º   charter of rumney marsh º   collins justice º ●   cary's guide in eccles . courts º   court marshals . with its proceed . º ● * complete justice º   clerks companion º   charter of london abridg. º   conset's prac. eccles . courts º   cory's prac. com. pleas º   customs of london º l clerk's manual º   charter of the forest º   cook 's engl. law judge º   cawley's laws against papists fol.   city of london's plea fol.   catalogue of justices fol.   camera regni º l clerks assistant º   clark's grammar º * dalton's office of sheriffs fol.   — sheriff abr. º * — justice fol. f dyer's reports with a table fol.   — brograve , and risden's read º f — abridgment º   — the same in english º * dugdale's orig. juridiciales fol. * f davis reports fol.   — of impositions . º   — ab. of cook 's reports º   denshall's reading of fines º   dodridge's principalit . of wales º   — english lawyer º   — compl. parson º   — of parliaments º   davenport's abr. of cook 's lit. º   doctour and student º   doctour and student abr. º   derham's manual º   danby's argument º   debates of the comm. at westm . º   — of the comm. at oxford fol.   d'ewe's journal . of q. e. fol.   degge's parsons counsellor º f dsctrina placitandi º * duke 's l. of cha . uses fol.   ephemeris parliamentaria fol.   elesmere's post nati º   — on a lord chancellour º   elsynge of parliaments º   edgar's charge º   exact clerk º   exact law-giver º   exact constable º   enchiridion legum º   english liberties º f finch's law fol.   — in english º   — summary of the law º f fitzherbert's abridgment fol. f — quarto * f — natura brevium º * — nat. brev. eng. º l fleta on the english law º   fulbeck's parallel and pandects º   — preparative º   fraunch's lawyers logick º   freeholders grand inquest º   fillacers office º   fleetwood's justice º   forster's lay-man's lawyer º   fidell's presidents º * fortescu de laudihus l. º   fitzharris arraign . and plea fol.   fuller's argument º   fees of courts º   godboults reports º   gouldsbrough's reports º   glisson and gulst . ep. of the law º f gregorie's moot-book º   — the same in eng. º * greenwood of courts º   godolphin on the admiralty º   grand quest on the h. of peers º l glanvil on the law º   grand quest conc . bishops rights º   godolphin's abr. eccl. law º   — orphans legacy º   grand-jury mans oath º   guide to eng. juries º   grotius of war and peace in english fol.   hutton's reports fol.   hetley's reports fol. * hobart's reports fol.   hern's pleader fol.   — law of conveyances º   — modern assuraneer º   — reading on sewers º   hughes grand abr. parts º   — abr. of acts and ordin . º   — original writs º   — abr. of crook's reports º   — abr. acts , , ● car. i. and , , , car. ii. º   — abr. of moor's reports º * — parsons law ●   huntley and king●●ey's argum. º   hakewell's liber●y of the subj . º   — manner of pas● bills in p. º * — of parliamen●s º f horn's mirrour of justice º   — the same in english º   hawk's grounds 〈…〉 the law º   historical discourse 〈…〉 parliam . º   heydon's idea of 〈…〉 law º   hunt's argument 〈…〉   hales pleas of the 〈…〉 wn º   hollis his remains 〈…〉   honour of the lor● spiritual fol.   hesket's reading 〈…〉   holborn's readin 〈…〉   hatton of statutes 〈…〉   hughes's queries 〈…〉   hale of sheriffs ac 〈…〉 nts º   — provision for the 〈…〉 or º f jenkin's reports fol.   — of courts ●   — liberty of the subject º   — works º   justice restored º   ireland's abr. of cok 〈…〉 vol. º   justice revived º   institutions or grounds of law º   judgments in the vpp●r bench º   instructions for jury 〈…〉 en º   jurisdict . of the h. of ●ords and of impositions º   — of the h. of lord 〈…〉 appeal º   jani anglorum facie 〈…〉 va º   journals of the h. of 〈…〉 mmons º   jus ang. ab antiquo ● f jones's reports fol.   jura coronae º   jus sigilli º * f kelleway's reports , with dallison fol. * f kitchin of courts º * — the same in english º * kebles statutes fol.   keble's justice fol.   keble's abr. of the laws against recusants º * kilburn's presidents º   king's prerog . asserted fol.     king's prerog . and subj . privil . f latch's reports fol.   lane's reports fol.   ley's reports fol.   leonard's reports ● parts fol. l lambert of the laws of engl. fol. * — duty of constabl●● º   — of courts º * — perambulation of kent º * — justice º l linwood's constitutions fol.   layer's off. and duty of constab . º   ley of wards and liveries º   leigh's law terms º   legis fluvius º   littleton's tenures fr. and en. º f — vicesimo quarto   — reports fol. * lex londinensis º   lex mercatoria fol.   london's liberties fol. f moore's reports fo● * manwood's fore 〈…〉 laws º   moyle's entries º   method of passing bills in 〈…〉 arl . º   marches reports º   — actions for slander parts º   — amicus reipublicae 〈…〉 o * mariton's guide for co●●tables º * — landlords law 〈…〉 º   — of wills and tes●●ments º   ma●ley's ab. coke's ● rep. º   manby's abr. statute º   murray's scotch law ●ol .   modern reports fol. f mayna●d's edw. the 〈…〉 d. fol. l magna charta º   — in eng. by cok 〈…〉 º   meriton'● parson 's m 〈…〉 itor º   molloy de jure mari 〈…〉 º   noye's reports fol.   — maxims of the law º   — compleat lawyer º   nusances with judges resolut . º l novae narrationes , with articul . º   new book of instruments º   oliver's ordinances fol.   owen's reports fol.   orders for the poor º f old natura brevium º   orders of a court leet , & c. baron º   orders in chanc. by the com. of the g. seal º l officina brevium fol.   officium clerici pacis º * pulton's stat. at large fol.   — de pace fol.   — abr. of stat. fol.   — abr. of p. statutes º f plowden's rep. par . . tables fol. f — queries º   — queries english º f — abridged º   — the same in english º   popham's reports fol.   pryn's animad . on cook 's inst . fo .   — parliamentary writts , vol. º   practice and privileges of parl. º   perfect conveyancer º   parsons ans . to cook 's th rep. º   powell of courts º   — reportery of records º   — direct . to search records º * — attorney academy º   — attorneys almanack º   practice of the exchequer º   practice of chancery º f perkins º   — the same in english º   — vicesimo quarto   presidents or instruments º   page's jus fratrum º   philips studii legalis º   — principles of law º   praxis utriusque banci º   practick part of a justice º   power of parliaments º   pettus of parliaments º   pettyt's right of the commons º   — miscell . parliaments º l placita gen. & specialia º f palmer's reports fol.   philipps grandeur of the law º f rolls abridg. of the law fol. l ryley's rec. of the tower fol. l register of writs fol. l rastal's entries fol.   — stat. in vol. fol.   — abr. of the stat. to jac. fol.   rights of the kingdom º   rights of the people º   rules and ord . in the upper bench com. pl. & chanc. made .   ridley's view of civil law º   rights of the bishops º f rolls rep. in parts fol.   royal charter in english º   replication to the city of londons plea fol. l read's decl. and pleadings º   rules and orders in the com. pl. º l robinson 's pleadings fol. f statham's abr. fol.   shepherd's epitome fol.   — law of common assurances fol.   — practical counsellour fol.   — actions of the case for words º   — actions of the case for deeds º   — marrow of law , parts º   — touch-stone º   — president of presidents º * — duty of a constable º   — court keepers guide º   — guide for a justice º   — clerks cabinet º   — clerk of the market º   — of corporations º   — survey of justice º   — proposals º   — of county judicatures º   — grand abridgment º   — of tithes º   — view of the laws º * l spelman's glossary fol.   stiles reports fol. * — pract. register º   scobell's collection of acts fol. l skenes scotch laws fol.   the same in scotch fol.   — de significat . verborum º l selden's mare clausum fol.   — the same in english fol.   — history of tithes º   — of barronage º   sherman on estates tayle º   special law cases º   s. johns argument º   star-chamber cases º * f stamford's pleas of the crown º   somner of gavel kind º   small 's declarations º * swinbourn of wills º   sharrock on linwood º   stone 's reading of bankrupts º   statute of bankrupts , by t.b. º   statuta vetera & recentiora º   smith's ommonwealth of eng.   sheriffs practice in london º   series of the house of peers º   selden of the judic . of p. º f savil's reports fol.   statutes of ireland fol.   security of english mens lives º f siderfin's reports in parts fol.   selden's tracts fol.   spelman of law terms º l thesaurus brevium rep. fol.   tenures of ireland fol. lf townesend's tables fol. taylor of gavel kind º   thorp's charge º   tything table º f trotman's abr. cook 's rep. º   tothil's transactions in chanc. º * trials per pais º * terms of the law º   topicks of the law º f theloal's digest . of writts º   tenants law º l tompson's lib. placitandi fol.   townsend's collections fol.   trahern's readings º f table to hen. the th . º   — to coke's instit . fol.   — to his instit . fol.   — to his instit . fol.   — to his instit . fol.   — to hobart's rep. fol.   — to davis reports fol.   townsend's d book of judg. º   treatise of nobility º   touchstone of precedents º   townsend's prep . to pleadings º   travellers guide º   trye's jus filizarii º trials . the tryal of w. staley , e coleman , w. ireland , &c. r. green , &c. n. reading , r. langhorne ; g. wakeman , &c. a. bromwich , &c. t. gascoyne , j. tasbourough &c. w. stafford ; m. stapleton , &c. g. busby , r. essex , s. colledge e. cellier , h. care , j. giles ; e. fitzharris , &c. t. knox , &c. t. whitebread , &c. l. munson , &c. n. thomson , &c. lord cornwallis , regicides ; count coningsmark , &c. e. of strafford , the ri●ters , w. russell , a. sidney , sir s. bernardiston , l. braddon , &c. j. hambden .   vernon 's consid . in excheq . º   vaughan 's reports fol. l — prac. wallae º   vidian 's exact pleader fol.   wingate 's maxims fol. * — ab. statutes º   — body of the law º   — statut. pacis .   waterhouse on fortescue fol.   winch 's reports fol. * west 's presidents parts º   womans lawyer º   wiseman 's law of laws º   white on the sacred law º   welwood 's abr. of sea laws º   wentworth 's executors office º * wilkinson 's office of a sheriff º l winche 's entries fol.   williams excellen . of the law º   whalley 's relig. estab . by law º   williams jus appellandi º year books . edw. ii. published by sir john maynard knight . edw. iii. volumes hen. iv. and v. vol. edw. iv. vol. hen. vi. vol. hen. vii . &c. vol. i have omitted the price of the ten volumes of year books , some of them being sold by way of subscription . f yelverton's reports fol.   young's vade mecum º   zouch on the admiralty º collected by thomas basset bookseller at the geo●ge near st. dunstan's church in fleetstreet .